ML101650132

EA-10-034, Morgan, Lewis and Bockius Investigative Report Regarding Vermont Yankee

ML101650132
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Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	02/22/2010
From:	Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/EDO, NRC/RGN-II
McLaughlin M
Shared Package
ML101650131	List: ML101650132
References
EA-10-034, FOIA/PA-2011-0089
Download: ML101650132 (142)

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L ATTORNEY-CLIENT PRIVILEGE AITORNEY WORK PRODUCT REpORT OF INVESTIGATION ENtERGY NUCLEAR. VERMONT YANKEE MORGAN,LEWIS'&BoCKlUS LLP FEBRUARY 22,2010

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT TABLE OF CONTENTS I.

Introduction....................................................................................................................1 II. Investigative Procedures................................................................................................2 A. Qualifications ofthe Investigator.............................................................................3 B. Document Collection and Review............................................................................3 I.

Litigation Hold ofPotentially Relevant Documents.........................3

2.

Entergy Document Collection..........................................................,4

3.

Collection ofDowns Rachlin Martin PLLC Documents..................5

4.

Document Review and Production...................................................6 C. Witness Interviews..................................................................................................7 D. Status and Limits ofInvestigation..........................................................................8 III. Summary..........................................................,............................................................. 9 A. Genesis ofthe Issues............................................................................................... J0 B. Summary ofIssues.................................................................................................. ]2 IV. Findings & Conclusions................................................................................................14 A. Issue No.1: Did ENVY intentionally mislead Nuclear Safety Associates, the Department ofPublic Safety, or the Public Oversight Panel as to the existence ofunderground piping systems that carry radionuclides so that they opted to review the Service Water System to satisfy Act 189's requirement that the Comprehensive Reliability Assessment review

"[a]n underground piping system that carries radionuclides"?................................ 14

].

Issue.................................................................................................. 14

2.

Chronology.......................................................................................14

3.

Analysis & Conclusion.....................................................................27

AITORNEY-CUENTPRIVILEGE ATTORNEY WORK PRODUCT

a.

ENVY personnel provided accurate information to NSA with regard to the piping at VY..........................................28

b.

The evidence suggests that NSA independently arrived at its decision not to review the CSS to fulfill Section 3(a)(7)'s mandate.........................................29

c.

The evidence shows that NSA independently arrived at its decision to review the SWS to fulfill Section 3(a)(7)'s mandate.........................................30 B. Issue No.2: Did David McElwee intentionally mislead Tom Buchannan at a December 8, 2008 lunch or William Sherman in the fall of2008 when he stated that there were no underground pipes that carried radionuclides at ENVY?..........................................................................................34

1.

Issue..................................................................................................34

2.

Chronology.......................................................................................35

3.

Analysis & Conclusion.....................................................................36 C. Issue No.3: Did Entergy obtain a draft ofthe final NSA Report before the report was issued to the public on December 22, 20087....................................38

1.

Issue..................................................................................................38

2.

Chronology.......................................................................................38

3.

Analysis & Conclusion.....................................................................40 D. Issue No.4: Did ENVY intentionally fail to address, in its Response and Errata, the statement at page 262 ofthe NSA Report that "there are no underground piping systems carrying radionuclides at ENVY?.......................................................................................... 4]

1.

Issue..................................................................................................41

2.

Chronology.......................................................................................41

3.

Analysis & Conclusion.....................................................................45 ii

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT E. Issue No.5: Did ENVY intend to mislead parties to Docket No. 7440 by responding to VPIRG discovery request No. 4-6 that there have not been any underground piping systems carrying radionuclides during ENVY's ownership ofthe VY Station?..................................................................................46 I.

Issue..................................................................................................46

2.

Chronology.......................................................................................47

a.

Background.........................................................................47

b.

Initial response to VPIRG:EN.4-6......................................50

c.

ENVY Approval ofResponses to VPIRG Fourth Round Requests..................................................................57

d.

Subsequent Consideration................................................... 6I

3.

Analysis & Conclusion.....................................................................65 F. Jssue No.6: Did ENVY intentionally fail to address the statement at page 15 ofMarch 17,2009 Public Oversight Panel Report, which stated: "The Panel was informed that there were no systems with underground piping that carry radioactivity at VY"?................................................................................68

1.

Issue..................................................................................................68

2.

Chronology.......................................................................................69

3.

Analysis & Conclusion.....................................................................72 G. Issue No.7: Did Jay Thayer intentionally mislead the Vermont Public Service Board when he testified on May 20,2009, that he believed that there were no active piping systems underground containing contaminated fluids today at the Vermont Yankee plant.........................................73 J.

Issue..................................................................................................73

2.

Chronology.......................................................................................74

3.

Analysis & Conclusion.....................................................................78

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT H. Issue No.8: Did Mike Colomb in.tentionally mislead the Public Service Board on May 26,2009, when he limited his testimony to the Chemistry Laboratory Drain Line leak in response to a question about the existence ofunderground piping systems that carried radionuclides at ENVy?...............................................................,.................................................. 80 I.

Issue..................................................................................................80

2.

Chronology.......................................................................................81

a.

McElwee's request for information.....................................84 I.

Bailey's response....................................................85 ii.

Skibniowsky's response.........................................87

b.

Bykov's Outline ofJssues....................................................89

c.

Mike Metell's Request for Information and Summary ofUnderground Piping.......................................................91

1.

Metell's Request for Information...........................91 ii.

Metell's Summary of Underground Piping............92

d.

Garry Young's testimony.....................................................97

e.

Final preparation of Columb................................................97

3.

Analysis & Conclusion..................................................................... 100

a.

Colomb................................................................................. 100

b.

ENVY Personnel.................................................................. 101

c.

DRM Attorneys....................................................................104 I. Issue No.9: Did David McElwee intentionally mislead Arnie Gunderson when McElwee responded to Gundersen's August 13,2009 question about underground piping carrying radionuclides at ENVY?............................................. 1 05

1.

Issue.................................................................................................. 1 05

2.

Chronology....................................................................................... 105 iv

AITORNEY-CLIENT PRIVILEGE AITORNEYWORKPRODUCT

3.

Analysis & Conclusion.....................................................................1 12 V.

Exhibit List.................................................................................................................... 115 A.

List of Acronyms B.

Investigator Qualifications C.

ENVY Organizational Chart dated May J9, 2009 D.

List of Custodians ofElectronic Records E.

Search Terms for Electronic Records F.

Request for Downs Rachlin Martin PLLC G.

List ofWitnesses Interviewed v

ATTORNEY~CLlENTPRIVILEGE ATTORNEY WORK PRODUCT REPORT OF INVESTIGATION I.

Introduction A January 14,2010 letter from the Vermont Department ofPublic Service ("DPS")

Commissioner David O'Brien indicated that Entergy Nuclear Vermont Yankee ("ENVY)

personnel did not provide accurate information to its contractor, Nuclear Safety Associates

("NSA"), during its Comprehensive Reliability Assessment ("CRA,,).I Presentations to the Vermont Legislature in January 2010 and a range ofVermont media reports included allegations that ENVY personnel misled the NSA, DPS, the Public Oversight Panel ("POP") and parties to the Public Service Board ("PSB") proceeding, including misleading testimony by Entergy executives.

As a result, Entergy retained Morgan Lewis & Bockius, LLP ("Morgan Lewis" or the "Investigator") to investigate statements regarding underground piping at Vermont Yankee

("VY") made (i) by Mike Colomb and Jay Thayer in live testimony before the PSB in May 2009, (ii) in the written ENVY response to a specific discovery request, VPJRG:EN 4-6, filed in January 2009, and (iii) by ENVY personnel when responding to the State and its contractors regarding the CRA. Entergy directed the Investigator to focus on ENVY actions or inactions and whether any ENVY personnel engaged in any intentional misconduct.

Entergy made it clear that the Investigator would have complete independence in determining the facts surrounding the issues and freedom to explore any related issues it deemed appropriate. Entergy also pledged complete cooperation from its employees, including the time and resources ofits Information Technology ("IT) Department. The Investigator has conducted an independent investigation and received complete cooperation from Entergy employees. As A list of Acronyms is contained in Exhibit A attached to this Report.

I AITORNEY-CLIENTPRIVILEGE AITORNEY WORK PRODUCT detailed below, Entergy personnel have been available on nights and weekends to provide information to the Investigator and Entergy's [T Department has provided, and is still providing, a great deal of resources to support this on-going investigation.

This Report first describes the procedures used in the investigation, including the qualifications ofthe Morgan Lewis team, the documents collected and reviewed, and the witnesses interviewed. Next, the Report provides a summary ofthe issues addressed. As described in this section, after the investigation began, Entergy or the Investigator identified additional issues that required resolution in order for the Report to be complete with respect to the conduct ofEntergy personnel. Thus, the original issues became nine issues, although the original issues remain the most significant. Finally, the Report addresses each issue by providing a statement ofthe issue, a detailed chronology of relevant documents and witness recollections, and analysis and conclusions.

n.

Investigative Procedures

~ Entergy authorized this privileged internal investigation by Morgan Lewis on January 20, 2010. The Investigator immediately sent a team to the VY site to review documents and conduct interviews. Because ofthe accelerated schedule ofthe investigation and the dynamic nature of the information available to the Investigator, the Investigator conducted additional interviews, re-interviews and document reviews as necessary to complete the internal investigation. From January 20,2010, to February 21,20]0, the Investigator expended more than 2,300 hours0.00347 days <br />0.0833 hours <br />4.960317e-4 weeks <br />1.1415e-4 months <br /> interviewing relevant personnel and reviewing more than 65,000 documents. This section sets forth the investigative procedure.

2

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT A.

Qualifications of the Investigator Morgan Lewis is an international firm with more than ],200 attorneys. It has one of the largest Energy practices in the country with deep experience in the nuclear regulatory area, including regulatory proceedings before the Nuclear Regulatory Commission, licensing proceedings and investigations. Morgan Lewis also has one ofthe country's premier corporate investigations and white collar legal practices. The Morgan Lewis investigation team consists of attorneys from these two practices who have significant experience in investigations particular to the nuclear industry. Qualifications of these key team members are provided in Exhibit B.

B.

Document Collection and Review

1.

Litigation Hold ofPotentially Relevant Documents To preserve potentially relevant documents, on January 21, 2010, Entergy issued a litigation hold directing Entergy employees related to the investigation to preserve:

All documents, both electronic and hard copy, relating to statements made in connection with the Comprehensive Vertical Audit and Reliability Assessment by Nuclear Safety Associates or in connection with Vermont Public Service Board proceeding Docket No. 7440 (the "relicensing" proceeding) with regard to underground piping at Vermont Yankee that carried or carries radioactive materials, including any discussion ofthe Condensate Storage System, the Service Water System or any buried or underground piping systems, and including any communication regarding discovery responses or testimony prepared or given in that proceeding.

Documents subject to the litigation hold dated from June 1,2008, until the present.

Entergy employees related to the investigation were directed to determine whether they possessed records relevant to the litigation hold, and to report such possession to Entergy management by 5:00 pm on January 21,20] O. Litigation holds were sent to the following Entergy employees: David McElwee, Gary Bailey, Mark LeFrancois, Jeffrey Hardy, Brian Naeck, Steve Skibniowsky, Henry Metell, Jim Rogers, Michael Colomb, Peter Guglielmino, 3

ATFORNEY-CLIENT PRIVILEGE ATFORNEYWORKPRODUCT John Dreyfuss, Jay Thayer, William Glew, George Wierzbowski, Wayne Limberger, Norm Rademacher, Jeffrey Meyer, David Mannai, and Lynn DeWald. In accordance with the terms of the litigation hold, individual employees who held relevant physical and electronic materials provided these materials to Morgan Lewis. Hard-copy documents were subsequently converted into an electronic format to facilitate the Investigator's review. Hard copies were preserved nonetheless.

An organizational chart ofENVY employees dated May 19, 2009, is attached as Exhibit C to provide information regarding the Entergy employees and their reporting structure.

2.

EnterlD;: Document Collection Another team composed ofEntergy IT staff searched for and collected relevant electronic documents. The IT staff searched the hard drives, home server drives, and shared server drives ofeach individual relevant custodian for the term beginning March 1, 2008. The search yielded results that included emails, calendar files, word processing documents, spreadsheets, presentations, portable document formats ("pdf'), and text flies. The IT staff also searched for and delivered the emails ofparticular Entergy custodians for various dates that were relevant to particular circumstances and issues ofthe investigation. A list ofthe custodians searched is provided at Exhibit D. A table showing the time periods and search terms used to search the records of each custodian is provided at Exhibit E.

The Entergy IT team searched the servers and systems reasonably likely to contain information from the targeted custodians. Entergy has preserved back-up tapes from December 2009 and from January 2010. They are currently processing a server with more than 1.5 terabytes ofdata to determine whether additional relevant documents exist. They have worked continuously since the investigation began to assist Morgan Lewis.

4

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT As a result ofthese efforts, Entergy provided the Investigator with more than 65,000 electronic documents in native format, based on a set of search terms and date restrictions applied to individual Entergy document custodians for the time period ofMarch 1,2008 to the present.

3.

Collection ofDowns Rachlin Martin PLLC Documents Entergy's outside law firm in the PSB Docket No. 7440 proceeding, Downs Rachlin Martin PLLC (UDRM"), provided a number ofhard-copy and electronic documents to Morgan Lewis. Hard-copy documents related to the investigation were physically shipped to the Investigator, or in some instances, scanned into an electronic format and electronically transferred. Electronic documents held by DRM were retrieved based on a set of search terms applied to each relevant DRM document custodian for the period from March], 2008, to the present. The request made to DRM is provided at Exhibit F. In response, DRM provided the Investigators with at least 124,152 electronic records, as well as a number of hard-copy documents, including] 0, 3-inch, 3-ring binders containing hardcopy witness preparation documents.

Since many ofthe materials provided by DRM are subject to the attorney-client privilege, the Jnvestigator reviewed these documents to first determine ifthey are relevant to the issues of this investigation. Non-relevant materials protected by the attorney-client privilege or attorney work product doctrine that exists between DRM and Entergy were not made a part ofthis Report ofInvestigation. Documentary materials from DRM that are relevant to the investigation were reviewed as part ofthe investigation.

5

ATTORNEY-CLIENT PRlVILEGE ATTORNEY WORK PRODUCT

4.

Document Review and Production The Investigator immediately embarked on an ambitious schedule to review the documents made available by Entergy and DRM. Morgan Lewis used additional attorneys to assist the key team members for an expedited review ofall relevant documents. The electronic documents were uploaded into a Concordance database to facilitate the review. Morgan Lewis was able to review all ofthe documents produced to date by Entergy and DRM to support the delivery ofthis Report of Investigation and the preceding productions. More than],400 hours0.00463 days <br />0.111 hours <br />6.613757e-4 weeks <br />1.522e-4 months <br /> of attorney time were devoted to the review ofthe documents produced in the investigation.

In total, Morgan Lewis collected and reviewed a targeted cache ofmore than 65,000 electronic and hard copy documents related to the nine issues. These documents included documents held by both Entergy and DRM. The Investigator also reviewed the files of a former in-house attorney who worked on Docket No. 7440, Kim Bykov.2 The documents included emails, calendar files, word processing documents, spreadsheets, presentations, engineering drawings, portable document formats, text files and cell phone records ofthe various Entergy employees whose records and files would likely relate to the issues being investigated. As the investigation progressed, the Investigator requested and reviewed additional documentation made available by Entergy and DRM.

The Investigator created document chronology files containing the most probative documents related to each of the nine issues. In addition, Morgan Lewis has identified more than 109,000 pages ofelectronic documents that consist of Entergy documents collected under the criteria above, reviewed, and satisfying the search parameters identified in Exhibit E, regardless of relevance. That number also includes all relevant DRM documents collected under the In some materials, Kim Bykov is identified by her maiden name, Kim Bridges.

6 2

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT aforementioned criteria, reviewed by the Investigator, and satisfying the search parameters identified in Exhibit E. Production to the investigation ofelectronic documents is still ongoing.

The Investigator will continue to identify documents that meet these criteria as it receives and review materials from DRM and Entergy.

C.

Witness Interviews Morgan Lewis identified witnesses to be interviewed based on their connection to the nine issues identified as well as from information coming out ofthe review ofthe documents produced during the investigation. The Investigator ultimately interviewed 29 individuals in the conduct ofthe investigation. Exhibit G ofthis Report ofInvestigation provides a listing of witnesses interviewed. Due to the direction ofEntergy to complete the investigation as quickly as possible, many ofthese witnesses were interviewed multipJe times as new information became available during the course ofthe investigation.

Morgan Lewis interviewed the individuals who made statements regarding underground piping to the PSB, DPS or the POP. In addition, Morgan Lewis interviewed all availabJe Entergy employees involved with: (1) responding to requests for information from Nuclear Safety Associates ("NSA") during the Comprehensive Vertical Audit and Reliability Assessment

("CRA"); (2) discussing the preparation or contents ofthe NSA Report with NSA employees; (3) reviewing the NSA Report to determine whether Entergy should respond or preparing the errata sheet to it; (4) preparing Entergy's response to the Vermont Public Interest Research Group

("VPJRG") discovery request 4-6; (5) reviewing the POP Report to determine Entergy's response; and (6) preparing Jay Thayer and Michael Colomb to testify before the PSB on May 20,2009 and May 26,2009, respectively. In addition to current ENVY personnel, the 7

AITORNEY-CLIENT PRIVILEGE AITORNEYWORKPRODUCT individuals interviewed included contractors, one former employee, Entergy in-house counsel, and outside counsel fi'om DRM.

In the majority of cases, the Investigator used two attorneys, at least one of whom took handwritten notes, to conduct each interview. The interviews were not otherwise recorded. As the investigation progressed, the Investigator returned to the VY site, and conducted follow-up intervic:ws and interviewed additional witnesses, as required. Additionally, Morgan Lewis conducted follow-up telephonic interviews as required. One witness was not available to be interviewed during the period ofthe investigation. The Investigator is still diligently pursuing counsel for former Entergy in-house counsel, Kim Bykov, to schedule her interview.

D.

Status and Limits ofInvestigation The conclusions in this Report oflnvestigation represent an analysis ofthe facts that have been gathered through February 21, 20] O. The Investigator will continue to accumulate additional facts as the Bykov interview is completed or other relevant documents become available. Entergy has identified a large server that contains electronic documents, some of which may be relevant to the investigation. Entergy has expended considerable effort to process the data on this server, which contains more than 1.5 terabytes of information. The review of those electronic records is ongoing and may lead to the discovery of additional relevant documents. As noted above, one former Entergy employee, an in-house counsel with a substantial role in several ofthe nine issues, has not yet been interviewed. The Investigator intends to conduct the interview as soon as individual counsel makes the witness available. The conclusions contained in this Report ofInvestigation are subject to modification in light ofany additional data we may collect. Should any modifications be in order, the Investigator will notify Entergy promptly.

8

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT The Investigator also did not interview individuals other than its current or former employees and contractors. The Investigator has not sought interviews or documents from the NSA, DPS or its contractors, POP members or their staff, the Joint Fiscal Committees, or the Joint Financial Office or its contractors. To the extent the issues involve conversations or other information exchanges, such individuals also may have information relevant to the investigation.

m.

Summary Primarily, the investigation sought to determine whether Entergy personnel (or persons acting on behalf ofEntergy) intentionally misled third parties with respect to the existence of underground piping that carry radionucIides at ENVY. The investigation focused on the interaction in the fall of2008 between ENVY personnel and the contractors and State personnel or representatives conducting or overseeing the CRA, ENVY's response to a VPIRG discovery request in January 2009, and the testimony oftwo Entergy executives before the PSB in May 2009. As the investigation progressed, Entergy or the Investigator added additional issues, which included specific statements made by ENVY's Senior State Regulatory Affairs Engineer in the fall of2008 and in the summer of 2009, and ENVY's response (or lack thereof) to statements contained in the December 22, 2008 NSA Report and the March 17, 2009 POP Report.3 As described in detail in the next section, the Investigator did not find that any ENVY personnel or representative intentionally misled third parties about the existence ofunderground piping at VY that carries radionuclides. Although the Investigator did not find a basis to substantiate intentional wrongdoing, as discussed below, the Investigator found that certain As described in Issue No.3, Morgan Lewis also investigated whether ENVY received an advance copy of the December 22, 2008 NSA Report and thus could have influenced the language in the final version. The investigation concluded that ENVY did not.

9

AITORNEY-CLIENT PRIVILEGE AITORNEYWORKPRODUCT ENVY personnel failed at times to clarifY understandings and assumptions and therefore allowed statements to be made that were incomplete or inaccurate when viewed in a context different from the one relevant to the CRA.

A.

Genesis ofthe Issues In June 2008, the Vermont Legislature required that DPS conduct a Comprehensive Vertical Audit ("CVA") as part ofa CRA at the VY plant. DPS contracted with NSA to conduct the eRA. The Legislature required the audit to take vertical slices of seven whole plant systems, including "[a]n underground piping system that carries radionuclides." Although that language may appear clear, in the context of the requirements of the statute and the piping that exists at VY, it has caused a good deal ofconfusion. ENVY personnel operated under an understanding ofthe meaning ofan "underground piping system that carries radionuclides" that was shared, apparently, by NSA and DPS personnel, but which was not obvious outside ofthe context ofthe CRA.

The shared understanding has three components. First, DPS and ENVY agree that the underground piping system in Act 189 referred "to underground pipe carrying contaminated liquids." See Issue No.1, Tab 39, Letter from D. O'Brien to R. Smith, Jan. 14,2010 (emphasis added). As Commissioner O'Brien explained, DPS, NSA and Entergy all agreed that "Act 189's underground piping language [was] limited to pipes carrying liquids due to their ability to contaminate soils in the event ofa leak." Therefore, gaseous pipes that were underground did not fall within the statute's mandate.

10

AITORNEY-CLIENTPRIYILEGE ATTORNEY WORK PRODUCT Second, Act 189'5 mandate to audit an "underground piping system that carries radionuclides" did not apply to pipes in trenches,4 even ifthe trenched pipe was below grade.

NSA originally sought to review the Condensate Storage System ("CSS") to comply with Act

] 89's mandate, but when NSA learned that the CSS at VY was in trenches, it chose to audit the Service Water System ("SWS") instead. The SWS is "buried;" the CSS is "trenched." A member ofthe POP confirmed this distinction:

Act 189 3(a)7 designates "underground" piping. That's a term with some ambiguity and subject to interpretation.

Underground could mean "buried" or it could mean "below grade."

We did not interpret the term in any ofour considerations that I am aware of, but I would take "buried" to be a much better fit than below grade because much ofthe plant piping is below grade. The systems evaluated for 3(a)2, 3(a)3, 3(a)4, and 3(a) 5 have lots of"below grade" radioactive piping that could might have been interpreted as underground radioactive piping. Therefore, I would not have considered piping run in concrete tunnels to have met the definition for underground piping. Below grade yes, underground - no.

See Jssuc~ No. I, Tab 42, Email fromW. Sherman to A. Gundersen et a1. re: refreshing your memory, dated Jan. 30, 2010 (ENVYHC00434-35).

The third element ofthis shared understanding was that the Act required a vertical slice review of a "whole system" and not a "sub-system." "The legislature was clear that they wanted whole systems vertically sliced, not individual components or sub-systems." See Issue No.1, Tab 42G, Notes on Panel, Draft Detail Comparison: Consultants' proposed work scope compared with Act 189 statutory requirements, dated Sept. 27,2008 (ENVYHC00445)

(emphasis added).

At ENVY and other companies in the nuclear industry, there is a distinction between "buried" piping and piping that is in trenches. "Buried" refers to pipes in direct contact with the sailor concrete and therefore subject to certain corrosion risks. Pipes in trenches are not in direct contact with the soil or concrete; instead, they are surrounded by air and not susceptible to the same corrosion mechanisms.

II 4

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT It was this shared understanding that led to much, but not all, ofthe questionable ENVY statements, because it allowed various Entergy personnel to understand NSA's statement that there are "no underground piping systems carrying radionuclides at ENVY" to mean that there are no buried (in contact with soil), liquid piping systems (whole plant) carrying radionuclides at VY. To ENVY personnel, the latter statement in the eRA context was, and remains, accurate.

B.

Summary ofIssues As ofthe date ofthis Report, the Investigator has drawn the following conclusions regarding the issues. The Investigator concluded that ENVY personnel did not intentionally mislead NSA, DPS or POP in the fall of2008 with regard to the existence ofunderground piping systems at ENVY. The documentary evidence demonstrates that ENVY personnel supplied NSA, a nationally known nuclear energy consulting contractor staffed principally by nuclear engineers, with data and information regarding its Buried Piping and Tank Inspection Program and the contaminated pipes contained within the scope ofthat program. Thus, the decisions that NSA made in terms ofwhat systems to review with respect to Act] 89's mandate were based on accurate information from ENVY. The ultimate choice by NSA, in consultation with DPS and POP, to conduct the vertical audit on the plant's Service Water System appears to have been logical given that DPS and the Legislature were concerned primarily with reliability-related issues.

As to the response to the VPIRG interrogatory, which stated there were no underground piping systems that carried radionuclides, the investigation did not conclude that the inaccurate statement resulted from an intent on the part ofthe ENVY or DRM personnel to mislead the parties in the PSB proceeding. The investigation found, however, that the incomplete answer to VPIRG 4-6 resulted in part from a faulty process, from failings by certain ENVY personnel to 12

AITORNEY-CUENTPRIVILEGE AITORNEY WORK PRODUCT provide thorough and clear information as required, and from ENVY counsel not following up on information learned subsequent to the discovery response.

As for the May testimony, the investigation concluded that Thayer did not intend to mislead the parties to the PSB proceeding. The investigation did find that, after Thayer testified, some ENVY personnel understood and others should have understood that there were potential inconsistencies between Thayer's testimony and the earlier response to VPIRG 4-6 on the one hand and, on the other hand, the existence ofcontaminated buried piping at ENVY when this issue is seen in a less restrictive context (outside ofthe CRA). Despite identifying this potential discrepancy, ENVY personnel failed to correct or clarify Thayer's testimony, failed to correct or clarify the ENVY response to VPJRG 4-6 and failed to prepare Mike Colomb so that he could make clear the context ofhis testimony on May 26, 2009. Although these failures are serious, the investigation did not substantiate that these ENVY employees intended to mislead the PSB or other parties. Because Colomb had not been specifically alerted to this inconsistency, the investigation did not conclude that he intended to mislead the PSB or other parties when he testified.

As to the other issues, the investigation did not find that the ENVY Senior State Regulatory Affairs Engineer intentionally misled POP members or a local official in the fall of 2008, or the Legislature'S contractor in the summer of 2009, with respect to the existence of underground piping that carries radionuclides. In addition, based in part on the shared understanding ofthe meaning ofthe term an "underground piping system that carries radionuclides," the investigation did not conclude that ENVY intentionally failed to address statements in the NSA Report and the POP Report that there were no such pipes at VY.

13

ATTORNEY*CLIENT PRiVILEGE ATTORNEY WORK PRODUCT IV.

Findings and Conclusions A.

Issue No.1: Did ENVY intentionally mislead Nuclear Safety Associates, the Department ofPublic Safety, or the Public Oversight Panel as to the existence of underground piping systems that carry radionuclides so that they opted to review the Service Water System to satisfy Act 189's requirement that the Comprehensive Reliability Assessment review "[a]n underground piping system that carties radionuclides"?

In a January 14, 20 J0 letter to Entergy senior management, DPS Commissioner David O'Brien wrote:

In preparing the scope ofthe CRA in conjunction with the Public Oversight Panel (POP), the DPS and NSA assessment team were informed by ENVY that there were no piping systems that met the description ofsection 3(a)(7) of Act] 89. As a resu.lt, the scope ofthe assessment substituted ENVY's Service Water System (SWS) for the underground piping described in Act 189, including a review ofENVY's Buried Pipe and Tank Inspection Program (BPTIP) as it is applied to the SWS.

See Tab 39, Letter from D. O'Brien to R. Smith dated Jan. 14,2010 at 1 (footnotes omitted)

(emphasis added) (ENVYHC00403-03A). This letter suggests that ENVY personnel misinformed the DPS and NSA as to the existence ofan "underground piping system that carries radionuclides" at VY and that the misinformation caused DPS and NSA to review the Service Water System C"SWS") under Act 189's requirement.

2.

Chronology January 2008 - A report on the proposed scope ofthe CRA did not propose an audit of the underground piping. See Tab 3, Vermont Yankee Comprehensive Vertical Audit Recommended Methodology to Thoroughly Assess Reliability and Safety Issues at Entergy Nuclear Vermont Yankee (Jan. 2008) (ENVYHC00013-33).

Spring 2008 - Mike MeteH (Senior Project Manager, ENVY) created an undated ENVY side.

by-side matrix that compared proposed legislation with existing audits and inspections required by the Nuclear Regulatory Commission ("NRC). The matrix showed no legislative requirement for a vertical review ofan underground piping system that carries radionuclides. See Tab I, Draft #3 of Side-By-Side Matrix (ENVYHCOOOO1-9).

Metell - Created chart to demonstrate that proposed legislation was unnecessary because previous or planned NRC inspections adequately addressed these same issues.

14

AITORNEY-CLIENT PRIVILEGE AITORNEY WORK PRODUCT Spring 2008 - Section 3(a)(7) ofan undated draft of Vermont Senate Bill No. 364 shows the addition of"An underground piping system that carries radionuclides" as part ofthe seven systems to be inspected. See Tab 4, Draft ofVermont Senate BiIJ No. 364 (ENVYHC00034-40).

Dreyfuss - (John Dreyfuss is Director, Nuclear Safety, ENVY) Interviewed by House Committee with respect to the Act; does not know why provision was added.

McElwee - (David McElwee is Senior State Regulatory Affairs Engineer, ENVY)

Testified before House and Senate Committees as to license renewal issues; does not know why provision was added. Knew Rep. Sarah Edwards was concerned about underground piping and presumes that she probably put it in the legislation.

Spring 2008 - An undated summary of Vermont Senate Bill No. 364 described "a verticallhorizontal inspection methodology and work plan [to] be employed in the assessment."

See Tab 7, undated summary ofVermont Senate Bill No. S. 364 (ENVYHC00057.58).

May 20, 2008 - Metell provided an updated "side-by-side matrix" com paring Act 189' s requirements with existing audits. The entry regarding "An underground piping system that carries radionuclides" stated "XXXXXX Need info on any tritium audit and design changeXX."

It is highlighted in red. See Tab 8, Email fromM.MetelltoD.McElweeeta1.re: RE: DRM-VY Preparations for LRJRestructuringlISA Interface - Recurring Call - Privileged and Confidential, dated May 20, 2008 (ENVYHC00059-64).

Metell-Highlighted this point in red because this was the only aspect ofthe CRA for which he had not identified an existing NRC inspection covering the same subject.

June 6,2008 - The Vermont Legislature enacted Act 189, requiring a broad-scope CRA be performed at VY that included a vertical slice review of, among other things, "an underground piping system that carries radionuclides." See Tab 5, Vermont Legislative Bill Tracing System (ENVYHC00041-42); Tab 6, Act 189, section 3(a)(6) and (7) (ENVYHC00044-56).

June lOt 2008 - MeteJl provided his review ofthe proposed CVA (Comprehensive Vertical Audit), stating: "My review ofthe proposed inspection shows that the NRC and State did an excellent job ofmeeting each others goals...." With respect to an "Underground system carrying radionuclides," Metell stated:

After relocating our chemistry lab line to "above-ground," I believe that we do not have any significant underground water systems carrying radioactive materials. We basically only have non-radioactive underground water lines that are monitored for potential contamination.

We are not a water discharge plant and manage water via fuel pool evaporation. Our significant underground lines carrying radioactive materials would be AOG. However, since that is a low pressure system that is not subject to corrosion (e.g. the significant aging mechanism) and contains primarily noble radioactive gases that are monitored and released 15

ATTORNEY*CLIENT PRIVILEGE ATTORNEY WORK PRODUCT at the stack anyway, we should be able to demonstrate that this is a low risk system to the public.

See Tab 9. Email from M.Metell toJ. Callaghan et at. re: CDBl Inspection List-Privileged and Confidential, dated June 10,2008 (ENVYHC00074). Recipients ofthat email included McElwee, Mannai, Dreyfuss, Guglielmino, Rademacher, Weirzbowski, and Bykov, as well as DRM attorneys Marshall, Miller, and Johnson.

Metell-The discussion regarding underground piping in this email was more detailed than discussion ofthe other six systems because, at that point, Metell did not believe that ENVY had a fully-developed buried underground pipe inspection program or that the NRC had not already conducted an inspection ofENVY's underground piping. MetelJ believes that this e-mail contained a pretty good summary ofVY's underground piping.

He thinks he probably spoke with Rogers about this.

July 16,2008 - McElwee emailed Jay Thayer (Vice President, Entergy Nuclear Operations, Entergy Services. Inc.) setting forth an overview ofwhat Act] 89 required Vermont DPS to do with regard to VY. It listed the seven systems to be assessed and did not make any specific comment with regard to the underground piping system. See Tab 10, Email from D. McElwee to

1. Thayer et al. re: Overview ofthe State Comprehensive Reliability Audit (CVA). dated July 16, 2008 (ENVYHC00077-78).

July 16,2008 - DPS State Engineer Uldis Vanags forwarded the draft agenda for the meeting of the DPS and CV A Oversight Panel set for July 17 and 18,2008. See Tab II, Email from U.

Vanags to A. Gundersen et al. re: Draft Agenda for CV A Oversight Panel, dated July 16, 2008 (ENVYHC00080-81 ).

McElwee - No recollection ofspecific discussion ofunderground piping at the July meeting.

July 28, 2008 - DPS circulated a draft Reliability Assessment Scope document that had for section 3(a)(7):

Underground Piping System (Rad) NEl requirement for ground water monitoring/ Decommissioning Rule / Buried pipe and tank inspection program - potential for ground contamination.

See Tab 12. Email from M. Metell to R. Wanczyk re: Reliability Assessment Scope, dated July 28.2008 (attaching Scope of Work) (emphasis in original) (ENVYHC00082-86).

Metell-Vanags likely sent this to him in discussion over the scope ofthe CRA.

August 4, 2008 - DPS provided a revised "Scope ofWork for the Reliability Assessment ofthe Vermont Yankee Nuclear Station" with an attached Audit Requirement - TABLE I, which has for section 3(a)(7):

16

ATTORNEY-CLIENTPRIVILEGE ATTORNEY WORK PRODUCT Underground Piping System (Rad) NEI requirement for ground water monitoring! Decommissioning Rule I Buried pipe and tank inspection program - potential for ground contamination.

See Tab 13, Email from D. McElwee to P. Guglielmino (Project Manager for CVA Response, RCM, Technology) re: Final scope, dated Aug. 4, 2008 (emphasis in original) (ENVYHC00088 92); Tab 14, Email fromP.GuglielminotoG.Wierzbowskietal.re: FW: Final scope, dated Aug. 5, 2008 (emphasis in original) (distributing document to larger team) (ENVYHC00093.98).

August 12, 2008 - ENVY leads for the upcoming NSA audit held an internal meeting to prepare for a meeting with the DPS and NSA. See Tab 15, Meeting Notification to D. McElwee, J.

Dreyfuss, M. Metell, P. Guglielmino, J. Stasolla, G. Wierzbowski, S. Naeck, R. Wanczyk re:

State inspection meeting, dated Aug. )2,2008 (ENVYHC00099). That evening, Guglielmino circulated an "updated Information Index we discussed during today's meeting." The Information Index has under "Underground Piping," document EN-DC-343Rl titled "Buried Piping and Tank Inspection and Monitoring Program" with the contact listed as G. Wierzbowski.

See Tab 16, Email fromP.GuglielminotoJ.Dreyfussetal.re: CRA Information Index, dated Aug. )2,2008 (attaching Information Index) (ENVYHCOOIOI-106).

GugJielmino - Before any official document request, ENVY prepared an initial document package for NSA. (Items I -22 on NSA Request Matrix were sent to NSA around this time. Guglielmino put five copies of these items on disks and gave to NSA.)

Wierzbowski - Was technical lead on this project and the primary interface with Woyshner on technical issues. Denies steering them away from anything or towards something else related to underground piping.

August 13,2008 - Meeting agenda for NSA and ENVY stated that the NSA will present the scope oftheir investigation. Another stated that Vanags will present the scope ofwork. See Tab 17, State Reliability Inspection Meeting Agenda, dated Aug. J3, 2008 (ENVYHCOOO J07); Tab 18, Agenda August 13, 2008. Vermont State Comprehensive Reliability Assessment (CV A),

dated Aug. 13,2008 (ENVYHCOOI09).

August 28,2008 - In a detailed scope ofwork. NSA proposed reviewing the Condensate Storage System ("CSS") Underground Piping to satisfY section 3(a)(7) ofAct 189. See Tab 20, Reliability Assessment ofthe Vermont Yankee Nuclear Facility Detailed Scope ofWork, Provided by Nuclear Safety Associates to State ofVermont Department ofPublic Services, dated Aug. 28, 2008 (ENVYHCOOI 14-20).

Dreyfuss - May have seen scope ofwork before it came out. ENVY would have developed white papers to discuss systems and programs. LeFrancois, Wierzbowski or Bailey told him that CSS would not be a good candidate because it was not buried (i.e.,

trenched). Never discussed the meaning of "buried" or "underground" with Woyshner.

No discussion with Woyshner on what to replace CSS with. Woyshner may have targeted CSS due to problems with that system in the past. Dreyfuss was aware of 17

AITORNEY-CLIENT PRIVILEGE AITORNEY WORK PRODUCT abandoned buried radwaste piping, but did not discuss proposing other piping for NSA review. Did not believe that abandoned radwaste piping would be related to reliability.

Dreyfuss stated it was not ENVY's role to interpret the Act for NSA. Did not think CSS was a good fit because it is not burried. Thought SWS was an odd selection because it did not carry radionuclides, but understandable from a reliability perspective. Did not steer NSA. Did not know why NSA shifted. Did not recall discussions about SWS, but knew SWS is related to reliability.

McElwee - Received draft ofNSA scope ofwork beforehand, but did not try to influence what was in that draft. Scope ofunderground piping did not raise a concern with him.

Guglielmino - No discussion ofENVY's preference for what system NSA should look at regarding underground pipes.

Breite - (Harry Breite is Lead, Service Water System; Engineering Code Programs, ENVY). Aware that NSA was interested in SWS as part ofscope. It was included already in 3(a)(6). Heard ofno efforts to get NSA to change underground pipe inspection from CSS.

September 1, 2008 - Woyshner emaiJed McElwee stating that the "recommended system[] for vertical evaluation" included an "Underground piping system that carries radionuclides Condensate storage system underground piping-Balance ofplant system." See Tab 21, Email from B. Woyshner to D. McElwee re: Visit to VY - September 8th week, dated Sept. 1,2008 (ENVYHC00121-122).

September 3, 2008 - Guglielmino circulated to a large group ofENVY personnel assigned to support the Audit, a copy ofthe CRA Presentation that Dreyfuss had given on that day. On the slide that discussed the seven systems, it had: "Underground Piping System that Carries Radionuclide's - Condensate Storage System Underground Piping. A second slide, from the VYNS 2008 CRA State-VY interface presentation, noted that the "CST Underground Piping" system would be evaluated. See Tab 22, Email from P. Guglielminoto G. von derEsch eta!. re:

CRA Presentation & System Overview Presentation Template, dated Sept. 3, 2008 (attaching CRA PowerPoint and VYNS 2008 CRA State-VY interface PowerPoint) (ENVYHC00123-135 and ENVYHC01816).

Septem.ber 8, 2008 - ENVY held a "kickoff' meeting among the ENVY senior site management and NSA that introduced the Entergy organization and discussed the CRA at a high level. See Tab 23, PowerPoint, "Comprehensive Reliability Assessment: Station Reliability Overview, Engineering," dated Sept. 8, 2008 (ENVYHC00138-62).

None ofthe ENVY attendees interviewed (Dreyfuss, McElwee, Rademacher, Sullivan, Wierzbowski, Callaghan, Stasolla, Philippan, Drouin) recalled any discussion of underground piping at this kick-off meeting.

18

ATTORNEY-CLIENT P RlVILEGE ATTORNEY WORK PRODUCT September 9, 2008 - ENVY provided full-size drawings ofthe P&ID's for Main Transformer, HPCI, Condensate & Feedwater, Residual Heat Removal, Cooling Tower, Service Water, and Condensate Storage with underground piping. See Tab 26, Vennont Yankee 2008 CRA, VDPS Infonnation I Question Request Fonn No. 45, dated Sept. 9, 2008 (ENVYHC00272-284).

Bailey - (Gary Bailey is the Lead, Buried Piping and Tank Inspection Program, ENVY).

Noted that this drawing showed that part ofthe CSS is underground in trenches.

September 11, 2008 - LeFrancois sent an updated "CRA Meeting on Buried Underground Piping" appointment. The text stated: "The inspectors are focused on any previous inspections ofburied piping that have taken place. Service water is a focus." See Tab 27, Email from M.

LeFrancois to J. Hardy et al. re: Updated: CRA Meeting on Buried Underground Piping, dated Sept. 11,2008 (ENVYHC00285).

LeFrancois - (Mark LeFrancois is Supervisor ofCode Programs, ENVY.) leFrancois believes that Rademacher (Director ofEngineering) or Wierzbowski (Manager of Engineering Programs and Component Engineering) would have told him he was meeting with NSA. Does not remember what he referred to by saying service water was a focus. Does not recall meeting beforehand to determine what to give NSA. No one told him to prevent NSA from reviewing the CSS or anything else.

Breite - Does not recall email, but had already been told that NSA was going to look at SWS. Not surprised because everyone looks at SWS. SWS across the industry consistently raised reliability concerns. Not involved in any discussion regarding transition from CSS to SWS.

Rademacher - Around this date in a hallway conversation, Woyshner asked ifCSS was a good candidate for review; Rademacher responded that the CSS was in a concrete trench so it was not directly buried in soil. Woyshner asked for his opinion, and Rademacher said that he thought NSA ought to look at something else. Did not represent to Woyshner that there were no underground pipes that contain radionuclides. Did not suggest SWS.

No advocacy and no reason to get NSA to switch to SWS. SWS is a more vulnerable system. SWS was more important to reliability, but Rademacher did not suggest SWS.

No discussion that SWS does not carry radionuclides, although believed NSA knew that because they were very experienced. Up to NSA to select the systems for the audit; ENVY to support infonnation requests for whatever NSA selected.

Wierzbowski - Had no conversations with NSA on switch from CSS to SWS; certainly no advocacy or lobbying to switch.

Guglielmino - No discussion ofsteering NSA from underground pipes. Set up a team to deal with underground piping that included Bailey. Everyone took this seriously.

Rogers - (Jim Rogers is Manager, Design Engineering, ENVY.) Does not remember any discussion of switch from CSS to SWS. Made sense to him because ofreliability focus ofCRA.

19

ATIORNEYpCLIENT PRIVILEGE ATIORNEYWORKPRODUCT September 11,2008 - ENVY personnel responsible for the Buried Piping and Tanks Inspection Program ("BPTIP") first met with NSA to discuss the program. GugJielmino's calendar entry reflects: "Underground Piping - Hopkins, Shannon, Pyrih / LeFrancois, B. Naeck, J Hardy, J Rogers, S Skibniowsky, G Bailey, J Callaghan." See Tab 24, GugUelmino calendar for September 11, 2008 (ENVYHC00238).

September 11,200.8 - At the NSA-ENVY meeting, ENVY personnel gave PowerPoint presentation entitled "Buried Underground Piping (BUP)." The VY Team included LeFrancois (Lead), Bailey - Engineering, Hardy - Chemistry, Naeck - Engineering and Skibniowsky Chemistry. The PowerPoint slides contained the following relevant information:

• Program Scope-o Piping and Tanks identified in License Renewal o Piping that could provide a path ofplant-generated radioactive material contamination to groundwater o other as they could present an environmental concern

• Fleet Program-Procedure EN-DC-343-1nc1udes All BUP o Screening/classification ofVY systems complete o Future Inspection of identified systems

• Tritium Studies o Identified all plant systems potentially containing tritium o Added new monitoring wells to supplement existing wells o Used as a basis for VY BUP Program development The tritium studies and monitoring also were discussed in connection with two other slides, one involving "Site Monitoring/Results" and the other involving "Corrective Action Process":

• VY Monitors for TritiumlRadioactive Particulates o Monitoring sites o Quarterly samples o Nothing above required minimum detectable levels (>2000 picoCurieS/liter)

See Tab 28, Meeting Request, Required Attendees: leFrancois, Hardy, Skibniowski, Naeck, Bailey, Briete, Guglielmino, Wierzbowski, Callaghan et. a!. dated Sept. 11,2008 (attaching PowerPoint "Overview: Buried Underground Piping (BUP)" (ENVYHC00286*292).

LeFrancois - The presentation lasted about an hour. Thinks that only he and Bailey were there, maybe Skibniowsky. NSA personnel were experienced, knowledgeable nuclear engineers familiar with boiling water reactors ("BWRs"). Discussed PowerPoint, including discussion oftritium studies and development ofBPTIP. Discussed buried piping systems. Not sure ifNSA asked ifthere were underground piping that carried 20

ATTORNEY*CLIENT PRIVILEGE ATTORNEY WORK PRODUCT radionuclides. Explained that ess was in trenches and accessible, therefore not in the scope ofBPTIP.

NSA appeared to understand; NSA did not question or challenge ENVY's definition of buried. Likely discussed the Auxiliary Offgas ("AOG") system and drain lines, which carry radionuclides. Does not recall ifthey talked about other specific piping contained in the BPTIP Scope Table. Does not see how NSA could come away from the meeting thinking that there were no underground pipes that were contaminated.

Described excavations that ENVY had done. ENVY presented objective information and did not try to convince NSA to change its focus. NSA chose SWS on their own. It would have been easier to look at ess.

Bailey-LeFrancois and he were at the meeting. Does not remember the PowerPoint, but remembers going through many of the items in the PowerPoint. Told NSA BPTIP program scope, status, action plan and long range plan. Does not recall telling NSA about site monitoring, corrective action process, or piping identified in license renewal, but could have been stated at meeting. Does not recall explaining definition of buried piping - assumed they understood that buried meant contacting soil. NSA people were knowledgeable nuclear engineers.

NSA asked about the CSS. Told them it was in trenches, and therefore not in BPTIP.

Does not recall that NSA was surprised or upset. Before meeting, LeFrancois said that NSA is going to ask about ess, and we need to explain that it is not buried, and therefore not on the BPTIP table. NSA did not ask to see all ofthe underground piping that carried radionuclides. Gave overview of the SWS. Gave them his copy ofan Ebasco pipe coating guide. Showed pictures ofopportunistic inspections. Met with NSA at least two more times as well. Each meeting lasted about one hour. Did not ten them what pipes or systems to focus on.

Hardy- (Jeff Hardy is Manager, Chemistry, ENVY.) Does not specifically recall the meeting, but likely was there. Helped create the PowerPoint, especially the "Site Monitoring/Results" page. Does not know why NSA shifted from CSS to SWS, although it makes sense because ENVY had issues with the SWS. Never heard that someone wanted NSA to not review the ess.

Naeck - (Brian Naeck is in Engineering, Mechanical Systems) Attended meeting where they reviewed PowerPoint presentation and every item listed in PowerPoint related to the tritium studies. Naeck was principal author ofthe VY Tritium Review. Not surprised that NSA chose SWS because that is the piping program VY had the most trouble with.

Consistent pre-job briefing was to give NSA what they asked for and to be very responsive. Does not recall receiving questions from NSA on Tritium Review.

September 11, 2008 - At the ENVY-NSA meeting, ENVY personnel also presented and discussed a list ofall underground piping systems then subject to the BPTIP at VY (the BPTIP Scope Table). The table's fifth column is for "Tritium Study" and indicates with a "Yes" ifthe 2J

AITORNEY~CUENTPRIVILEGE AITORNEY WORK PRODUCT pipe is potentially contaminated. The table also has a column that indicated whether the pipe was high risk based on contamination. See Tab 44, Spreadsheet, Buried Piping and Tanks Inspection and Monitoring Program (ENVYHC00447452). The table included in addition to AOG and RW piping systems, other systems associated with the tritium review, including: Floor Drains: Floor Drains from DG Rooms, Service Air Compr Rm, House Heating Boilers Rm to oil separator (OSMH*6) to river via stonn drain system (via DMH*3).

LeFrancois - Reviewed with NSA a copy ofthe BPTIP Scope Table that had all of its

('"o)umns at the September 1J, 2008 meeting, but is not sure ifthey gave it to them at this meeting. Discussed table in general terms. Does not remember a specific conversation about risk ranking. Clear that BPTIP procedure stated that ifrisk ranked high, then the pipe is contaminated.

Bailey - Had the large version (11" x 17") of the BPTIP Scope Table out on the room table and went through at least several pages with NSA. Believed he gave them a copy.

Explained how table was developed, used tritium study supplied by Naeck. No doubt that NSA understood that there was an underground radwaste line and an AOG line that carried radionuclides. Also discussed with NSA that the pipes were risk rated - high, medium, low, which determines the inspection frequency. Also gave them another copy ofEN-DC-343RL 1'laeck - Went over large print-out ofBPTIP Scope Table with NSA at the meeting. NSA was a smart, seasoned team. Would know what "RW" stood for in the table, and, ifnot, they would have asked. Very surprised ifNSA did not know ofthe existence at VY of buried piping that carried radionuclides.

Rademacher - Before the September 11 meeting, discussed with Wierzbowski what they were going to show NSA with respect to the underground piping system that carried radio nuclides. Wierzbowski showed him the BPTIP Scope Table. Later, told by Wierzbowski that NSA was provided a copy ofthat table ofunderground piping.

September 15,2008 - Action log transmitted by NSA showed that NSA had switched its review to the SWS: "The condensate system is recommended for removal and the parts ofthe SW system will be added. The Underground Piping [m]anagement Program will be reviewed specific to the SW system." See Tab 29, Email from B. Woyshner to J. Dreyfuss, D. McElwee, P. Guglielmino, G. Wierzbowski, U. Vanags et al. re: VY Reliability Assessment Action Log, dated Sept. 15,2008 (attaching VY Evaluation Project Action Log 091408.xls)(ENVYHC00293~

303).

Dreyfuss - Was involved in discussions with NSA Evaluation Project Manager Woyshner on how to translate Act) 89's requirements into achievable goals. Thinks he spoke with Woyshner about CSS being a good system because ofpast reliability challenges. Dreyfuss was aware of abandoned-in~place radwaste piping. But does not recall underground piping ever coming up in those discussions. Recalls thinking SW was an odd choice. No recall ofdiscussion with DPS or NSA on reason for the shift.

22

ATTORNEY-CLIENT PRiVILEGE ATTORNEY WORK PRODUCT September 17,2008 - Woyshner reported to Dreyfuss that he was pulling forward the "Buried Piping Program eval:' The attached table for "Buried Piping Inspection Program Review" assigns Tom Shannon and Lu Pyrih to "Interview Buried Piping Program Lead and Service Water System Engineer," "Continue Interview with Buried Piping Program Lead." and "Follow up activities for evaluation of Buried Piping Program." The schedule is for September 23 through 25. 2008. See Tab 30, Email from B. Woyshner to 1. Dreyfuss et aL re: VY-On-site activities schedule. dated Sept. 17, 2008 (attaching Requested Plant Interactions to be Performed) (ENVYHC00304-00311).

September 23, 2008 - Woyshner provided a schedule for the week ofSeptember 29,2009, which included a Wednesday activity: "Meet with Service Water System Engineer (Rosen, Schweizer) - this will not include the underground piping program review." See Tab 31. Email from B. Woyshner to D. McElwee re: Week 4 schedule ofactivities, dated Sept. 23.2008 (attaching Jist ofactivities/schedule) (ENVYHC00312-00314).

September 24, 2008 - Guglielmino's tracking calendar indicated a meeting between NSA and LeFrancois and Bailey: "Interview with Buried Piping Prgm Lead and Service Water Sys Eng.

Shannon, Pyrih I G. Bailey, LeFrancois." See Tab 24, Guglielmino calendar for September 24, 2008 (ENVYHC00241).

September 24, 2008 - GuglieJmino's tracking index ofNSA information requests, at no. 238, showed a request from Pyrih ofNSA for a "Copy ofBuried piping procedure and OP-5265 and PP-7030, Copies ofPPF7030.01, and NDE Reports for each ofthe 3 available inspection[sl.

copy ofEBASCO buried piping specification." The table indicates LeFrancois was responsible for this request and that it was closed. See Tab 45, All Requests - VYNPS Comprehensive Reliability Assessment - 2008. at 24 (ENVYHC01702).

September 25,2008 - Guglielmino's calendar indicated: "Follow up activities for eva!. of Buried Piping Program - Shannon, Pyrih." See Tab 24, Guglielmino calendar for September 25, 2008 (ENVYHC00242).

September 27, 2008 - POP discussion draft ofa chart entitled: "DETAIL COMPARISON:

Consultants' proposed work scope compared with Act] 89 statutory requirements" identified the SWS as the system to be evaluated for "Section 3(a)(7): An underground piping system that carries radionuclides." In addition, "Buried Pipe and Tank Inspection Program (BPTIP)" is listed under section 6(b) additional inquiries. A note to this section stated:

The Service Water System is non-radioactive. No underground radioactive pipes will be assessed unless BPTIP is evaluated. Consultants have stated that BPTIP will be evaluated as part ofvertical slice review of Sws. (Emphasis added.)

In addition. appended to the entire chart is a "Notes from panel" sheet that stated:

The intent of Act] 89 is that seven vertical slice inspections, not component inspections, be reviewed by the Department to assist in the 23

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PROD UCT legislature's decision making process. Neither the 20 components chosen by the NRC in the CDBI nor any "sub-systems" suggested by NSAlWSC qualify as Vertical Slice Inspections because by definition "sub-systems" are pieces ofwhole systems and can not be vertically sliced. Looking at sub-systems is more ofa component based review which the legislature rejected. The legislature was clear that they wanted whole systems vertically sliced, not individual components or sub-systems. The C in "CDBl" stands for COMPONENT Based Design Inspection and all parties acknowledge that it can not be a whole system review by definition. For example, the NRC looked at pieces ofthe Diesel, but did not perform an entire review ofhow all the Diesel's pieces perform as an integrated system.

See Tab 42G, Draft Detail Comparison: Consultants' proposed work scope compared with Act 189 statutory requirements, dated Sept. 27, 2008 (ENVYHC00441-4S)

(Emphasis added).

September 28~ 2008 - Woyshner sent an email to Vanags and Bruce Hinkley (as referred to in a January 30, 2010 Sherman email) stating: "2. We changed the condensate storage system underground piping to service water underground piping based on our telecon with the state of Vermont and the plant." See Tab 420, Email from W. Sherman to POP Members, DPS, VY re:

RE: refreshing your memory, dated Jan. 30, 2010 (ENVYHC00437).

October 3, 2008 - according to a January 2010 Sherman email, the POP decided on the matrix ofwhat to examine at VY. See Tab 42, Email from W. Sherman to A. Gundersen, P. Bradford, F. Sears, S. Hofmann, D. McElwee, R. Ellis re: RE: refreshing your memory. dated Jan. 30,2010 (ENVYHC00434).

October 10, 2008 - Sherman sent comments on a matrix dated October 9, 2008. Those comments included: "5. Service Water System should be removed from the Section 3(a)(7) column and placed in column Section 3(b). It's not 'an underground piping system that carries radionuclides.' It is an additional system the Panel agrees should be examined," and "7. A single Note should be provided in the Section 3(a)(7) column - The Panel is informed that there are no underground piping systems carrying radioactivity at Vermont Yankee." He also stated:

A note similar to Note 6 can be retained for the Service Water System. r would suggest:

Since the Panel is informed there are no underground piping systems carrying radioactivity. the Panel designates the Service Water System, which has buried piping, to be evaluated. The Buried Pipe and Tank Inspection Program (BPTJP) will be evaluated as part ofthe review of SWS.

See Tab 42C, Email from W. Sherman to A. Gundersen, F. Sears, P. Bradford and D. Lochbaum et al. re: FW: Act 189 Matrix as of 10*9*08, dated Oct. 10,2008 (ENVYHC00435-436).

24

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT October 23,2008 - Larry Hopkins (NSA) forwarded a request from Lu Pyrih (NSA) to Guglielmino, stating: "I discussed Lu's last request for a discussion with someone about some details concerning the buried piping program." Pyrih asked for:

In developing its site specific program for Buried Piping, VY developed an action plan and completed items 1-6 of that plan. I need the following information as it relates to the Service Water System:

I.

Identification of piping sections that are buried - Don't need drawings a description will do.

2.

Impact assessment and corrosion risk assessment ofthe buried Service Water piping sections.

Pyrih indicated that he had reviewed the action plan for VY's BUP program and recalled that LeFrancois was the lead presenter for the underground piping team. Pyrih also requested clarification ofENVY's opportunistic inspection data ofits BUP. See Tab 33, EmaiJ from L.

Pyrih to L. Hopkins re: Additional Information on Buried Piping of Service Water System, dated Oct. 23, 2008 (ENVYHC00318-00319).

October 24, 2008 - Vanags forwarded an email from D. Lochbaum (POP) regarding an incident that occurred while removing the reactor head that raised questions regarding how McElwee characterized the incident in terms ofthe (non)release ofradiation. See Tab 34A, Email from D.

Lochbaum to U. Vanags et al. re: Transmit Information to the Oversight Panel, dated Oct. 23, 2008 (ENVYHC00320).

October 28, 2008 - Sherman submitted to DPS Commissioner O'Brien POP's determination that NSA's scope ofwork in an attached matrix would satisi)' the intent ofthe legislation. Note 3 to the Table, under the heading "Section 3(a)(7): An underground system that carries radionuc:Jides," stated:

Note 3: The panel is informed that there are no underground piping systems carrying radioactivity at V ermont Yankee. POP Report.

Appendix C.

October 30,2008 - GugJielmino entered into the NSA Request Table the October 23, 2008 request from Pyrih as request Nos. 414 and 417.

414 Impact assessment and corrosion risk assessment for buried SW Piping Sections; and 4] 7 List ofburied SW piping sections.

See Tab 45, All Requests - VYNPS Comprehensive Reliabil ity Assessment - 2008, dated Jan.

25,2010 at 53 (ENVYHC01731).

25

ATTORNEY-CLIENT PRiVILEGE ATTORNEY WORK PRODUCT November 6, 2008 - ENVY provided NSA responses to 414 and 417. The response to request No. 414 included excerpts oftwo corrective action program documents describing milestones in completion ofthe impact assessment and performance ofthe corrosion risk assessment required by the BPTIP action plan. Attached was a copy ofthe BPTIP Scope Table (previously shared with NSA in September) as ofAugust 11,2008. The table listed numerous buried piping sections identified in the Tritium Review as contaminated or potentially contaminated, including AOG, CW, Floor Drains ("to river via storm drain sys"), RW, RHRSW, and Yard Drains. See Tab 35, Vermont Yankee 2008 CRA VDPS Information/Question Request Form, Request No.

414, dated Nov. 6, 2008 (ENVYHC00324-342).

The Response to request No. 417 included a copy ofthe September 1 ], 2008 PowerPoint presentation "Overview, Buried Underground Piping" and the most current snapshot ofthe scoping document. (This updated version ofthe BPTIP Scope Table included the contaminated or potentially-contaminated piping sections noted above as well.) See Tab 36, Vermont Yankee 2008 CRA VDPS Information/Question Request Form, Request No. 417, dated Nov. 6, 2008 (ENVYHC00343-363).

Limberger - Collected responses on November 3, 2008. Believes LeFrancois gave him the PowerPoint presentation; did not know that the paper version provided was missing the right-hand columns. Definitely gave NSA a hard copy document, believes the copy he gave NSA included the right-hand columns.

December 10, 2008 - Sherman stated that McElwee has told him that there are no underground piping systems that carry radionuclides and discussed the Chem Lab Drain Line:

When McElwee and VY said there was no underground radioactive piping (when we were doing the matrix), I specifically quizzed him about this piping. He said the same thing to me as to Tom Buch - the line was abandoned and the current drain is no longer buried piping. Therefore, I was satisfied there was no buried radioactive piping. This is also the reason for the wording in the matrix, "Since the panel is informed there is no underground piping systems carrying radioactivity...."

See Tab 42B, Email from W. Sherman to P. Bradford re: Act 189 Underground Pipe System, dated Dec. 10,2008 (quoted in a January 30, 2010 email from A. Gundersen to B. Sherman)

(ENVYHC{)0435).

February 5, 2009 - DPS counsel Hofmann forwarded to Marshall a draft DPS document that provided answers to POP questions regarding the NSA report, stating:

Did any underground piping at ENVY ever have radionuclides?

Response

26

AITORNEY-CLIENT PRIVILEGE AITORNEY WORK PRODUCT The study ofpiping that previously carried radionuclides was not part of the NSA scope for this Reliabil ity Assessment as established by the agreed-upon regulatory matrix.

See Tab 37, Email from 1. Marshall to 1. Dreyfuss, D. McElwee re: FW: Any ofthis confidential, dated Feb. 5, 2009 (attachments: Exhibit DPS-Panel-3 Draft.docs.doc) (emphasis in original)

(ENVYHC00364-366).

January 30,2010 - Sherman sent an email to Gundersen that highlighted an issue as to interpretation of"underground piping system":

Act 189 3(a)7 designates "underground" piping. That's a term with some ambiguity and subject to interpretation.

Underground could mean "buried" or it could mean "below grade."

We did not interpret the term in any ofour considerations that I am aware of, but I would take "buried" to be a much better fit than below grade because much ofthe plant piping is below grade. The systems evaluated for 3(a)2, 3(a)3, 3(a)4, and 3(a) 5 have lots of"below grade" radioactive piping that could might have been interpreted as underground radioactive piping. Therefore, I would not have considered piping run in concrete tunnels to have met the definition for underground piping. Below grade yes, underground - no.

See Tab 42, Email from W. Sherman to A. Gundersen re: refreshing your memory. dated Jan. 3D, 2010 (ENVYHC00434).

3.

Analvsis & Conclusion The investigation found no evidence that ENVY personnel intentionally misled NSA, POP or DPS about tbe existence of an underground piping system that carries radionuclides at ENVY so as to cause NSA to review tbe SWS instead of tbe CSS to satisfy Act 189's mandate for the CRA review to include "an underground piping system tbat carries radion uclides."

NSA Ol;ginally had planned to inspect the CSS to fulfill section 3(a)(7) ofAct 189's requirement to review an underground piping system that carries radionuclides. There was no testimony or documentary evidence that ENVY personnel intentionally misled NSA about the existence of underground piping that carries radionuclides or the status ofthe CSS system. In addition, there was no testimony or documentary evidence that ENVY personnel attempted to steer NSA to review the SWS as opposed to the CSS to fulfill section 3(a)(7)'s mandate.

27

AITORNEY-CLIENT PRIVILEGE AITORNEY WORK PRODUCT

a.

ENVY personnel provided accurate infonnation to NSA with regard to the piping at VY.

ENVY personnel provided accurate information on the CSS and on huried piping that existed at the VY site. As for infonnation regarding the CSS, ENVY accurately infonned NSA that the CSS at VY is in trenches. It is not "buried" and therefore is not part ofthe Buried Piping and Tank Inspection Program ("BPTIP,,).5 The CSS is not on the BPTIP Scope Table supplied by ENVY to NSA in the fall of2008. See Tab 36, Vennont Yankee 2008 CRA, VDPS Information/Question Request Fonn No. 411, dated Nov. 6, 2008 (ENVYHC00343-363). At the September 11 meeting, ENVY personnel discussed the CSS and explained that it was not part of the BPTlP because it was not "buried." Instead, it ran in trenches, did not come in contact with soil, and was accessible. In addition, both Dreyfuss and Rademacher commented to Woyshner that the CSS was trenched. There is no suggestion from any document or any witness that the information about the CSS that ENVY supplied to NSA was at all inaccurate or incomplete.

As for information that was provided regarding buried piping, ENVY personnel responsible for the BPTlP met at least three times with NSA personnel to discuss the BPTJP. At the first meeting on September 11, 2008, the evidence supports that ENVY gave NSA accurate information with respect to its buried piping program, which included infonnation about buried piping that carried radionuclides. ENVY discussed a PowerPoint presentation entitled "Overview, Buried Underground Piping." See Tab 28, Meeting Request, Required Attendees:

M. LeFrancois, J. Hardy, S. Skibniowsky, B. Naeck, G. Bailey, H. Briete, P. GugJielmino, G.

Wierzbowski, J. Callaghan et al. dated Sept. 11,2008 (attachment: PowerPoint, "Overview:

Buried Underground Piping (BUP)"(ENVYHC00286-292). A copy of that presentation was later provided to NSA at NSA's request. See Tab 36, Vennont Yankee 2008 CRA, VDPS Information/Question Request Form No. 417, dated Nov. 6,2008 (attachment: BUP Presentation, (ENVYHC00343-363). That presentation indicates that the BPTIP was based on tritium studies that looked at pathways to ground contamination - buried piping. The NSA Report relied on this PowerPoint for the section ofthe report on the underground piping program. See Issue 4, Tab 1, NSA Report at 264, Ref. 11 (ENVYHCOOS24).

ENVY participants uniformly recalled that they discussed the BPTIP Scope Table with NSA at the September 11 meeting. The BPTIP Scope Table lists numerous sections ofburied piping at VY that are designated as potentially contaminated and high risk. The ENVY participants may have given NSA a copy ofthe table at the meeting. It was definitely provided on November 6, 2008, pursuant to a specific request and referred to in the NSA Report. See Issue 4. Tab 1, NSA Report at 263-64, Refs. 2, 3, 11 and 13 (ENVYHCOOS23-00524). Tn addition, at least some of the ENVY personnel recall discussing celtain systems such as the AOG system, which carries radionuclides, at the September 11,2008 meeting.

ENVY personnel consistently stated that ENVY and other companies in the nuclear industry make a distinction between "buried" piping and piping that is in trenches. "Buried" refers to pipes in direct contact with the soil or concrete and are therefore subject to certain corrosion risks. Pipes in trenches are not in direct contact with the soil or concrete; instead, they are surrounded by air and not susceptible to the same corrosion mechanisms.

28

AITORNEY~CLlENTPRiVILEGE AITORNEY WORK PRODUCT That ENVY gave information about contaminated and potentially contaminated piping listed on the BPTIP Scope Table and that NSA understood that what was in that table is supported independently by the NSA Report. The NSA Report refers specifically to the BPTIP and stated that the "program covers the piping and tanks identified in the license renewal application, piping that could provide a path of plant-generated radioactive material contamination to groundwater, and other piping that could present an environmental concern." See id NSA Report at 263 (ENVYHCOOS23).

The evidence suggests that NSA was not interested in the potentially contaminated pipes listed in the BPTIP Scope Table because those pipes primarily carry gaseous matter, and the NSA was more concerned about pipes carrying liquids, that is, pipes that could leak and cause soil contamination. The January 14, 2010 letter from DPS Commissioner O'Brien made this understanding clear when it stated that the underground piping system in Act ] 89 referred "to underground pipe carrying contaminated liquids." See Tab 39, Letter from D. O'Brien to R.

Smith, dated Jan. 14,20] 0 (emphasis added) (ENVYHC00403-403A). Commissioner O'Brien specifically stated that DPS, NSA and Entergy all agreed that "Act 189's underground piping language [was] limited to pipes carrying liquids due to their ability to contaminate soils in the event ofa leak." This understanding is similar to ENVY witnesses' recollection ofwhat NSA was interested in - large, liquid, buried piping system that carries radionuclides. This letter also explains why NSA was not interested in the potentially contaminated AOG system pipes listed in the BPTlP Scope Table, which primarily carry gaseous matter.

ENVY I'ecently added seven pipe sections to the BPTIP Scope Table. See Tab 46, BPTIP Scope Table as ofFebruary 18, 2010 (ENVYHCO 1787-96). Wierzbowski stated that these seven pipe sections are ofa similar nature to the piping sections previously identified on the BPTIP table.

The investigation found no evidence that ENVY personnel intentionally excluded these pipes from the BPTIP Scope Table presented to NSA. Instead, the person in charge ofthe BPTIP stated that he did not know ofthese pipes because they were not in the original Tritium Review.

In addition, a question was raised about radioactive contamination in the storm drains at the VY plant. Those storm drains were listed in the BPTlP table presented to NSA, and thus NSA had information regarding those drains. Thus, the information provided by ENVY accurately identified the then known buried piping that was contaminated or potentially contaminated.

b.

The evidence suggests that NSA independently arrived at its decision not to review the CSS to fulfill section 3(a)(7)'s mandate.

NSA had initially designated the CSS to satisfy section 3(a)(7)'s requirement to review an underground piping system that carries radionuclides. The CSS is a large system that carries large volumes of liquids that contain radionuclides. Witnesses stated that at some boiling water reactor plants, including one that was the subject ofan Integrated Safety Assessment, the system was "buried" - the CSS pipes were in direct contact with the soil. At some plants, there were known issues about corrosion to the CSS pipes due to their contact with the soil. Therefore, CSS was a logical initial choice to review. At VY, however, the CSS is not part ofthe ENVY BPTIP because it is not "buried." Although parts of it are below grade, the system is trenched and the pipes generally do not contact soil or concrete directly. The CSS is accessible for inspection.

29

ATTORNEY-CLIENTPRIVILEGE ATTORNEY WORK PRODUCT No document or e-mail reviewed suggested, and no ENVY witness interviewed stated, that ENVY tried to steer NSA to review a different system from the ess. Although when asked for his opinion, Rademacher stated his view that ess was not a good choice because it was not buried, Rademacher made it clear that he did not steer NSA in one direction or the other.

[n addition, ENVY witnesses agreed that the decision not to review the CSS is logical because the CSS at VY is not buried and is not part ofthe BPTIP. The evidence shows NSA personnel understood this and determined not to review it. A member ofthe POP supports this logical decision not to review the ess. William Sherman wrote in 20] 0:

Act 189 3(a)7 designates "underground" piping. That's a term with some ambiguity and subject to interpretation.

Underground could mean "buried" or it could mean "below grade."

We did not interpret the term in any of our considerations that I am aware of, but Jwould take "buried" to be a much better fit than below grade because much ofthe plant piping is below grade, The systems evaluated for 3(a)2, 3(a)3, 3(a)4, and 3(a) 5 have lots of"beJow grade" radioactive piping that could might have been interpreted as underground radioactive piping. Therefore, J would not have considered piping run in concrete tUnnels to have met the definition for underground piping. Below grade yes, underground - no.

See Tab 42, Email fromW.ShermantoA.Gundersenetal.re: refreshing your memory, dated Jan. 30,2010 (ENVYHC00434-35). NSA apparently reached the same conclusion in the fall of 2008. There is no evidence that ENVY intentionally provided misinformation about the CSS or tried to steer NSA away from the ess at VY.

c.

The evidence shows that NSA independently arrived at its decision to review the SWS to fulfill Section 3(a)(7)'s mandate.

The evidence shows that NSA and DPS made the decision to review the SWS independently of ENVY. After stating that "there are no underground piping systems carrying radionuclides at ENVY," the NSA Report stated:

As an alternative and in agreement with the Department of Public Service and the Public Oversight Panel, the buried piping in the Service Water System was selected for a detailed examination ofthe ENVY underground piping inspection program.

See Issue 4, Tab I, NSA Report at 262 (ENVYHC00522). Thus, NSA's contemporaneous report states that NSA, DPS and POP agreed to review the SWS. ENVY is not included in the discussion. The Investigation uncovered a September 28,2008 Woyshner email to Vanags and Hinckley that apparently stated: "2. We changed the condensate storage system underground 30

6 AITORNEY-CLlENT PRJVILEGE AITORNEY WORK PRODUCT piping to service water underground piping based on our telecon with the state ofVermont and the plant." See Tab 42, Email from W. Sherman to A. Gundersen re: RE: refreshing your memory, dated Jan. 30, 2010 (ENVYHC00434).6 No ENVY witness interviewed, however, recalled such a conversation, and witnesses were consistent in stating that NSA and DPS guarded their independence throughout the CRA. See Tab 42C, Email from B. Sherman to A. Gundersen re FW: Act 189 Matrix as of ) 0-9-08, dated Oct. ) 0,2008 (ENVYHC00437).

Moreover, the timing ofthe decision to switch to the SWS supports that the decision was made with complete information. NSA's decision to review the SWS came after NSA reviewed the BPTIP and the BPTIP Scope Table at the September 11, 2008 meeting. The ENVY witnesses present at that meeting believe that, as knowledgeable and experienced nuclear engineers, NSA understood the table and therefore understood the contaminated buried piping existing at vy.7 NSA made its decision to review the SWS by September 1 S, 2008, when the NSA Action Log reflected: "The condensate system is recommended for removal and the parts of the SW system will be added. The Underground Piping [m]anagement Program will be reviewed specific to the SW system." See Tab 29, Email fromB.WoyshnertoJ.Dreyfusseta1.re: VY Reliability Assessment Action Log, dated Sept. 15,2008 (attachment VY Evaluation Project Action Log 091408.xls) (ENVYHC00293-00303). The Draft POP Matrix dated September 27,2008, also confirms that by that date the POP and DPS were aware ofthe NSA decision to review the SWS at VY. See Tab 41A, CRA Consultants' Proposal dated Sep. 27, 2009 (ENVYHC00430-33).

Only by reviewing and digesting the BPTIP and the BPTIP Scope Table could NSA reach the decision in the September 27, 2008 matrix to review the BPTIP program as a horizontal review in addition to the SWS. Moreover, such a review ofthe BPTIP was necessary to reach the conclusions stated in section 2.9 ofthe NSA Report. Thus, NSA decided to review the SWS knowing ofthe existence ofpotentially contaminated pipes listed in the BPTIP Scope Table. No The investigation did not have access to the original email from Woyshner. In addition, in December 2008, Sherman wrote that they were informed that there were no underground piping that carries radionuclides at VY and mentioned that McElwee told him that. See Tab 42B, Email from W. Sherman to P. Bradford re: Act 189 Underground Pipe System, dated Dec. 10, 2008 (quoted in a January 30, 2010 email from A. Gundersen to B.

Sherman) (ENVYHCOO435). The decision to change, however, was made in September, not December. It is therefore unlikely that McElwee's statement influenced NSA's decision on what to review. For a discussion of the issue of what McElwee stated to Sherman, see infra Issue No.2.

The vast nuclear experience of the NSA team (NSA Report at Appendix H) and the POP members (pOP Report at Appendix B) give particular credence to the statements of ENVY personnel interviewed that they believed the auditors understood very well what ENVY's personnel were saying. See Appendix H of Reliability Assessment ofthe Vermont Yankee Nuclear Facility, dated December 22,2008, available at http://publicservice.vermont.gov/docketsl7440IReliabiIity%20Assessment%20VY%20Final %20

%20REDACTED.pdf; Issue No.6, Tab I, Report ofthe Public Oversight Panel on the Comprehensive Reliability Assessment ofthe Vermont Yankee Nuclear Power Plant at 46-49 (ENVYHC01049-52). The more than 500 information requests from NSA for information and follow-up information and narrow specific requests underscore the conclusions by ENVY personnel that they were having effective two-way communications with the auditors. See Issue No.6, Tab 1, Repol't ofthe Public Oversight Panel on the Comprehensive Reliability Assessment of the Vermont Yankee Nuclear Power Plant at 46-49 (ENVYHCO1049-52).

31

AITORNEY-CLIENTPRIVILEGE AITORNEY WORK PRODUCT document or email or witness interviewed suggests that ENVY tried to steer NSA away from the other underground piping that carries radionuclides.

That the POP also understood that there were buried pipes that carried radionuclides at VY and supported NSA's switch is clear. Note 6 to the September 27,2008 discussion draft matrix stated: "The Service Water System is non-radioactive. No underground pipes wiJI be assessed unless BPTIP is evaluated." (Emphasis added.) This language demonstrates that the NSA and POP understood that the BPTIP included buried pipes that carry radionuclides. See Tab 42G, Draft Detail Comparison: Consultants' proposed work scope compared with Act 189 statutory requirements, dated Sept. 27, 2008 (ENVYHC00441-445).

The evidence further shows that the decision to review the SWS instead ofany ofthe potentially contaminated pipes listed on the BPTIP Scope Table was a logical decision to make, given the legislative mandate that a major, whole plant system important to plant reliability be reviewed as part ofthe CRA. The Vermont Legislature mandated the CRA to review vertical slices ofentire plant systems. The systems designated to be reviewed in the statute are large, major systems important to plant reliability.s See also Issue No.6, Tab I, Report ofthe Public Oversight Panel on the Comprehensive Reliability Assessment ofthe Vermont Yankee Nuclear Power Plant at 14, dated March ] 7, 2009 ("This section identifies seven whole plant systems for comprehensive, in-depth assessment....") (ENVYHCO] 017).

When looked at in the context ofthe first six systems identified in the statute for vertical slice review, it is reasonable that NSA would initially focus on the CSS as a possible subject for its review because it is a whole plant system ofsimilar magnitude. It also is logical that upon learning that CSS is entrenched, NSA would conclude that there are no systems at VY ofthe type that the legislature sought to review, because the underground pipes that are potentially contaminated do not constitute a major piping system. In this context, it makes sense that NSA would: (i) look at another whole plant liquid piping system that is buried in soil9 and (ii) look at The systems listed in Act 189 are:

1. The backup electrical supply including the diesels, batteries, and tie line from the Vernon dam. (These are the major, high voltage power systems.)

2. The emergency core cooling system including high pressure-and low pressure safety injection. (These are the bedrock safety systems designed to keep the reactor core covered in the event ofa loss of coolant accident such as from a major pipe rupture.)

.3. The condensate feedwater system, including the condenser. (This is the water that goes into the reactor to make steam to tum the turbine. The condenser is a huge heat exchanger.)

4. The primary containment, including residual heat removal and containment spray. (This is the giant steel can encased in thick concrete that sun"Ounds the entire reactor building. It is the barrier that prevents radionuclides from getting out to the public in the event ofa major accident and core melt.)

5. Cooling towers. (Both those used for power production and emergency cooling, essential to operation of the plant.)

6. Alternate cooling system and emergency service water. (These are large diameter concrete pipes that c:arry river water all over the site.)

See Tab 6, Act No. 189: A Comprehensive Vertical Audit and Reliability Assessment ofthe Vermont Yankee Nuclear Facility, Section 3 (ENVYHC00046-47).

The SWS is a large. liquid carrying system that is vulnerable to certain corrosion mechanisms because it is buried. There had been issues associated with that system at VY as well as at other nuclear power plants.

32 9

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT the BPTIP as a horizontal assessment designed to assess the reliability of those other buried piping sections that do carry radionuclides. The draft September 27,2008 matrix supports that this is exactly what NSA did.

The matrix, which set forth the scope ofthe CRA, was agreed upon at an October 3, 2008 POP meeting. Per Sherman, ENVY was excluded from that meeting. That matrix includes a Notes from panel" page, which states that:

The intent ofAct 189 is that seven vertical slice inspections, not componentinspections, be reviewed by the Department to assist in the legislature's decision making process. Neither the 20 components chosen by the NRC in the CDBI nor any "sub-systems" suggested by NSAIWSC qualifY as Vertical Slice Inspections because by definition "sub-systems" are pieces ofwhole systems and can not be vertically sliced. Looking at sub-systems is more ofa component based review which the legislature rejected. The legislature was clear that they wanted whole systems vertically sliced, not individual components or sub-systems.

See Tab 42G, Draft Detail Comparison: Consultants' proposed work scope compared with Act 189 statutory requirements, dated Sept. 27, 2008 (ENVYHC00445). The evidence supports that the kinds ofcontaminated pipes listed on the BPTIP table, such as condensate drains offofthe AOG system, would likewise be rejected for vertical study.

Moreover, the notes to the matrix state: "No underground radioactive pipes will be assessed unless BPTIP is evaluated." The matrix then provides that "The BPTIP will be evaluated as part ofthe review ofSWS." ENVY personnel provided NSA with information regarding underground radioactive lines as part ofthe BPTIP evaluation, which NSA did evaluate. As Sherman concluded in a recent email:

The bottom line is that, notwithstanding the confusion ofwhether there were or were not underground radioactive lines:

1. DPSINSA stated that No underground radioactive pipes will be assessed unless BPTIP is evaluated."

2. The Panel matrix states that "The BPTIP will be evaluated as part ofthe review ofSWS."

3. VY provided NSA information regarding underground radioactive lines as part ofthe BPTIP evaluation.

4. NSA did evaluate underground radioactive piping as part ofthe BPTIP evaluation.

There was an industry-wide reliability concern with respect to service water systems. It was a logical system to study for underground piping as part ofa reliability audit. For these reasons as well, there was no motive for ENVY to have NSA review the SWS instead ofone ofthe smaller pipes in the BPTIP table. All ENVY witnesses agree that the SWS was a more vulnerable system from a reliability perspective, and therefore potentially bigger problems could be uncovered.

33

AITORNEY~CLIENTPRIVILEGE AITORNEYWORKPRODUCT

5. NSA identified open items that could have been followed as part of its continuing work.

See Tab 42. Email fromW.ShermantoA.GundersenetaJ.re: refreshing your memory. dated Jan. 30, 20]0 (ENVYHC0043S~38).

The evidence does not support that ENVY intentionally misled NSA, DPS or POP with regard to the existence ofcontaminated underground piping at VY. Instead, NSA was provided all relevant information about the BPTIP, including information about piping lines containing radionuclides. The evidence shows that the NSA independently reached its decision to review the SWS and conduct a horizontal assessment ofthe BPTIP.

B.

Issue No.2: Did David McElwee intentionally mislead Tom Buchanan at a December 8, 2008 lunch or William Sherman in the fall of2008 when he stated that there were no underground pipes that carried radionuclides at ENVY?

1.

Issue According to Tom Buchanan, the Chairman ofthe Wyndham RegionaJ Commission ("WRC"),

on December 8, 2008, he had lunch with McElwee and McElwee told him that "there were no underground pipes that carry radionuclides" at ENVY. McElwee also reportedly stated "there had been such a pipe that leaked in the early 1980's, and that it had been abandoned in place."

In addition, a December 10,2008 email from William Sherman, then a member ofthe Public Oversight Panel ("POP"),IO stated:

When McElwee and VY said there was no underground radioactive piping (when we were doing the matrix), I specificaJly quizzed him about this piping. He said the same thing to me as to Tom Buchanan - the line was abandoned and the current drain is no longer buried piping. Therefore, J was satisfied there was no buried radioactive piping. This is also the reason for the wording in the matrix, "Since the panel is informed there is no underground piping systems carrying radioactivity...."

See Tab 3B. Email fromW.ShermantoP.Bradfordetal.re: Act 189 Underground Pipe System, dated Dec. 10, 2008 (ENVYHC00480).

Thus, it appears that McElwee stated words to the effect that there were no underground piping systems carrying radioactivity at VY to at least two people in the fall of2008. Because McElwee does not dispute that he may have made such statements, the issue is whether McElwee made such statements with the intent to mislead.

Sherman had formerly served as the State Engineer at VY from 1988 until 2007.

34 10

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT

2.

Chronology December 8, 2008 - Buchanan and McElwee met for lunch. An email from Buchanan to

. McElwee immediately after the lunch discussed the history of how an inspection of"an underground piping system that carries radionuclides" got into Act 189, confirming that such a subject was a topic at lunch. See Tab 1, Email from T. Buchanan to D. McElwee re: Riverside Cafe confirmed at noon <EOM>, dated Dec. 8, 2008 (ENVYHC00453).

December 9, 2008 - Buchanan emailed Peter Bradford, a POP member, and stated that he had spoken with McElwee about Act 189' s requirement that the audit review an underground piping system. Buchanan stated:

The panel reported to VSNAP at the last meeting that there is no such system, and thus it could not be inspected. In our conversation Dave mentioned very quickly in passing that there had been such a pipe (singular) at VY, but that it was abandoned in the 1980's.

Ideally when your final report discusses why you did not inspect an underground piping system that carries radionuclides as requested by the legislature you would say there is no such operational system, but there is an abandoned pipe that once served that purpose, and it was not inspected because it is not operational.

See Tab 3D, Email from T. Buchanan to P. Bradford re: Act 189 Underground Pipe System, dated Dec. 9,2008 (ENVYHC00480-81).

McElwee - Does not recaJl the specific conversation with Buchanan. Believed that he would have told Buchanan words to that effect. Believed that the context of the conversation was that Buchanan and the WRC had an interest in decommissioning costs, which to McElwee meant contaminated soil removal. Recalled the one incident with the Chern Lab Drain Line leak and discussed that with Buchanan. Knew NSA's apparent view that there was no buried piping of radiological concern - i.e., with a large volume of contaminated water contained within pipes in contact with soil. Believed that the NSA and DPS were not concerned with underground pipes that carried gas.

December 10, 2008 - Sherman confirmed that Buchanan had told him that McElwee had stated that there are no underground piping systems that carry radionuclides and discussed the Chern Lab Drain Line:

When McElwee and VY said there was no underground radioactive piping (when we were doing the matrix), I speCifically quizzed him about this piping. He said the same thing to me as to Tom Buchanan - the line was abandoned and the current drain is no longer buried piping.

35

ATTORNEY~CLIENTPRIVILEGE ATTORNEY WORK PRODUCT See Tab 3B, Email fromB.ShermantoP.Bradfordetal.re: Act 189 Underground Pipe System, dated Dec. 10, 2008 (ENVYHC00480).

McElwee - Does not recall being quizzed on the subject ofunderground piping in general by Sherman. Does recall telling Sherman about the Chern Lab Drain Line leak.

January 14,2010 - Buchanan emailed McElwee to provide the above information so that McElwee could have it for his chronology: "I don't know ifthis discussion is relevant to your review, but thought I'd pass it along." See Tab 2, Email from T. Buchanan to D. McElwee re:

Rutland Herald Story, dated Jan. 14,2010 (ENVYHC00478).

3.

Analysis & Conclusion In the fall of 2008, McElwee told at least Buchanan and Sherman words to the effect that there were no underground piping systems carrying radionuclides at the VY plant. The investigation did not substantiate that McElwee intentionally misled Buchanan or Sherman about the existence of an underground piping system that carries radionuclides at the VY plant.

The conversation between McElwee and Buchanan appears to have occurred substantially as reflected in the contemporaneous emails. McElwee likely made a similar statement to Sherman.

Based on our interviews with McElwee about his conversation with Buchanan and conversations with Sherman, the investigation did not substantiate that McElwee intended to mislead Buchanan or Sherman. This conclusion is based on the following:

First, McElwee's stated beliefthat NSA and DPS understood Act] 89's requirement with respect to underground piping to be limited to systems that carry liquids is supported by independent evidence. David O'Brien, the Commissioner ofDPS, stated in January 20]0 that the underground piping system in Act] 89 referred "to underground pipe carrying contaminated liquids." See Tab 4, Letter from Commissioner O'Brien to R. Smith at 1 n.3 (Jan. 14,20] 0)

(emphasis added) (ENVYHC00482). Commissioner O'Brien specifically stated that DPS, NSA and Entergyall agreed that "Act] 89's underground piping language [was] limited to pipes carrying liquids due to their ability to contaminate soils in the event ofa leak." As the O'Brien Jetter states: "The pipe inspection discussed on page 262 ofthe NSA CRA report (Exh. DPS Panel-I) discussed a gaseous vent pipe and thus is not considered to be a disclosure by ENVY of underground piping covered by section 3(a)(7) ofAct 189." See id. McElwee's interpretation of the scope ofthe question was consistent with DPS's understanding as set forth by Commissioner O'Brien. In addition, the investigation found no evidence that McElwee was aware ofeither the condensate drain I ines offofthe gaseous piping systems or that the storm water drains were ever considered to be an "underground piping system that carries radionuclides.,,1 J Annual NRC Radiological Environmental Operating Reports by VYNPC and ENVY dating back to 1994 have reported detectable activity from trace Cobalt-60 and other radionuclides accumulated in sediment traps in the storm water drain system. These reports have indicated detectable activity but at levels below applicable regulatory limits. The service lists show VYNPC and ENVY provided copies ofthese reports to DPS and the Vermont Department ofHealth annually. Accordingly, the presumption that storm water drains were not 36 11

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT Second, McElwee's recollection and statements regarding the conversation and his thought process at the time are consistent with WRC's and Buchanan's interest in decommissioning costs. Buchanan's email to Bradford suggests that Buchanan was concerned with soil contamination for "greenfielding" ofthe site. Buchanan's entire December 9, 2008 email stated:

I had a conversation with Dave McElwee yesterday in which we spoke very briefly about Act 189, and the requirement that the Public Oversight Panel inspection include "An underground piping system that carries radionuclides." The panel reported to VSNAP at the last meeting that there is no such system, and thus it could not be inspected. In our conversation Dave mentioned very quickly in passing that there had been such a pipe (singular) at VY, but that it was abandoned in the 1980's. That bit was news to me, and is probably important to know later on when we discuss greenfielding ofthe site.

Could your panel research that issue, and ifthere was such a pipe or system that is no longer operational make note ofit in your report so there is a follow-up point with regard to greenfielding conditions? Ideally when your final report discusses why you did not inspect an underground piping system that carries radionuclides as requested by the legislature you would say there is no such operational system, but there is an abandoned pipe that once served that purpose, and it was not inspected because it is not operational.

See Tab 3D, Email from T. Buchanan to P. Bradford re: Act 189 Underground Pipe System, dated Dec. 9,2008 (ENVYHC00481).

Furthermore, Sherman's December 10,2008 email to Bradford also focused on "contaminated soil that is in the decommissioning estimate":

For decommissioning, it is part of the contaminated soil that is in the decommissioning estimate. At different times, I would quiz McElwee and VY about aspects ofthe contamination - for example, in connection with borings taken as part ofthe engineering for the dry cask storage area.

See Tab 3B, Email fromB.ShermantoP.Bradfordetal.re: Act 189 Underground Pipe System, dated Dec. 10, 2008 (ENVYHC00480). Thus, McElwee's explanation ofwhy he interpreted the question narrowly is supported by contemporaneous documentation.

Third, there does not appear to have been a motive for McElwee to intentionally mislead Buchanan or Sherman in the fall of2008. McElwee was not involved in discussions with NSA to determine the scope ofthe CRA's review ofan "underground piping system that carries within the legislature'S intent for "an underground piping system carrying radionuclides" does not appear unreasonable. See also infra Issue No.9.

37

AITORNEY-CLIENT PRIVILEGE AITORNEYWORKPRODUCT radionuclides." Instead, he wasjustresponding to what he understood NSA's stated scope was.

As discussed in Issue No.1 above, the Investigator did not find that ENVY personnel intentionally misinformed NSA as to the existence of underground piping systems that carry radionuclides at VY. McElwee appeared credible with regard to this issue in our interviews with him.

C.

Issue No.3: Did Entergy obtain a draft of the final NSA Report before the report was issued to the public on December 22, 2008?

Entergy requested the Investigator to determine whether ENVY personnel obtained an advance copy ofthe NSA Report before that report was issued to the public on December 22,2008.

2.

Chronology November 3, 2008 - Woyshner (NSA) emailed McElwee, Dreyfuss, and Guglielmino, with copies to DPS personnel Hinckley and Vanags, attaching a draft outline ofthe planned table ofcontents ofthe NSA Report. See Tab 1, Email from B. Woyshner to D.

McElwee, J. Dreyfuss, P. Guglielmino et al. re: Reliability Assessment report Gutline, dated Nov. 3, 2008 (ENVYHC00485*94). The outline did not preview any ofthe report's content, only the section and sub-section headings. See Tab lA, Attachment, Draft "Nuclear Safety Associates, Reliability Assessment ofthe Vermont Yankee Nuclear Facility" (ENVYHC00486-94).

NovemberlDecem ber 2008 - ENVY personnel at various levels ofthe organization and counsel from DRM stated that they requested an opportunity to review the NSA Report in draft to comment on potential inaccuracies.

Dreyfuss - Requested advance copy ofthe NSA Report but was unsuccessful.

Saw only a draft outline ofthe report with no substance.

Mannai - Recalled that ENVY personnel wanted to see the report pre-issuance, but could not get it. He recalled that Dreyfuss and Colomb, who had taken over from Sullivan on October 15, 2008, were interested. He recalled that Sullivan also wanted a copy.

Metell - First thought he may have seen an advance draft ofthe NSA Report, but then stated that he did not think he had seen a draft and thought he would have been on vacation. We saw no documentary evidence suggesting he received an a.dvance copy.

McElwee - ENVY pushed hard to see a draft ofthe NSA Report. McElwee reported that he asked Woyshner, Hinkley, Vanags and possibly Sherman for an opportunity to review it. McElwee stated that Woyshner told him that NSA 38

AITORNEY-CLIENT PRIVILEGE AITORNEY WORK PRODUCT would ask if it needed any facts checked. McElwee reported that his efforts to obtain a preview were not successful.

Naeck - Described a draft that he thought may have been an advance copy ofthe NSA report that he marked up, and sent to Wierzbowski. Naeck appeared to be discussing the final report which was circulated by Wierzbowski.

Rademacher-Stated that he asked twice for an advance copy (once to Bill Woyshner), but did not receive one.

Thayer - Did not try to get the report beforehand. He knew Dreyfuss wanted it early but was aware ofa strong desire by the State to maintain the aura of independence. He only got the report when issued and does not know ofanyone at the site getting it early.

Wierzbowski - Stated that he did not ask Woyshner for an advance copy ofthe NSA Report. He asked internally and learned that NSA had declined.

Glew - Recalled that ENVY tried to get an advance copy but was told no by DPS, that DPS wanted the report to go to all parties at the same time. Glew did not recall who said this, but thought it was at a status conference. He doubted anyone in ENVY received an advance copy because plans were already in place to begin the review by Dreyfuss and McElwee. The report was much anticipated.

Marshall-Recalled a telephone call in which Hofmann ofDPS said it would not be released prior to public disclosure. DRM received the report when it was made public. Marshall recalled that this led to the need for a confidentiality review post-issuance.

Miller - NSA did not allow ENVY to see the report prior to issuance. He thought that McElwee was in those conversations with Hofmann and Marshall. He recalled NSA would issue the report without ENVY's prior review and that the proprietary review had to follow because NSA was over-inclusive.

Bykov - Was not interviewed. Her contemporaneous notes do not reflect prior access to or review ofthe NSA Rep0l1.

December 22, 2008 - Cover Jetter from Sarah Hofmann (DPS) to PSB Clerk Susan Hudson, transmitting the NSA Report, stated that ENVY was not provided an advance copy:

The Department did not provide VY with an advance opportunity to review the report and the company has therefore not yet been able to provide any input into what information should or should not be considered proprietary.

39

ATTORNEY-CLIENTPRIVILEGE ATTORNEY WORK PRODUCT See Tab 2, Letter from S. Hofmann to S. Hudson at 2 n.3, dated Dec. 22. 2008 (ENVYHC00496).

December 30, 2008 - Wierzbowski disseminated the final NSA Report to ENVY personnel with section review assignments for ENVY's formal review and comment. See Tab 3, Email from G. Wierzbowski to VTY - Managers Directors & Site VP Only, 1.

Dreyfus, D. McElwee et al. re: Comprehensive Reliability Assessment (eRA) report review request, dated Dec. 30, 2008 (ENVYHC00497-98).

December 30, 2008 - Dreyfuss forwarded the recently-issued NSA Report to several plant managers and two Entergy Vice Presidents (Thayer and Young) stating: "we were not afforded an opportunity to review the report in draft to validate facts or challenge conclusions." See Tab 3A, Email from J. Dreyfuss to VTY - Managers Directors & Site VP Only et a1. re: Comprehensive Reliability Assessment report, dated Dec. 30, 2008 (ENVYHC00498).

February 11,2009 - Colomb's preftJed testimony stated that ENVY "was not provided an opportunity to check facts in a draft version ofthe CRA Report." See Tab 4, Colomb' Prefiled Testimony at 2:19-20 (Feb. 11,2009) (ENVYHC00513).

3.

Analysis & Conclusion Although ENVY personnel at several levels of the organization requested an opportunity to review the NSA Report in draft for accuracy, the investigation found no evidence that ENVY personneJ saw or obtained an advance draft of the report.

The chronology above demonstrates that several ENVY personnel and outside counsel at DRM made multiple requests for an opportunity to review an advance draft ofthe NSA Report. The available evidence provides no indication that any ofthese efforts was successful. Contemporaneous statements by ENVY personnel and DPS counsel and the prefiled testimony by Colomb in the PSB proceeding confirm the witness statements that no advance draft report was provided to or received by ENVY personnel. Additionally, as discussed in the analysis ofIssue No.4, below, the efforts ofENVY personnel to review and comment on the NSA Report after December 22,2008, also are consistent with the conclusion that ENVY did not have an opportunity to do so earlier.

ENVY and DRM witnesses interviewed consistently denied seeing an advance copy of the NSA Report, or hearing that someone else in the organization had seen one.

Additionally, the Investigator collected and reviewed ENVY's email records for communications between ENVY and NSA between July 2008 and January 2009. This search uncovered no evidence suggesting that ENVY personnel obtained an advance copy ofthe NSA Report.

40

AITORNEY-CLIENT PRIVILEGE AITORNEYWORKPRODUCT D.

Issue No.4: Did ENVY intentionally fail to address, in its Response and Errata, tbe statement at page 262 of the NSA Report that "there are no underground piping systems carrying radionuclides at ENVY"?

The NSA Report, dated December 22,2008, stated at page 262:

Act 189 included an in-depth inspection of 'an underground piping system that carries radionuclides.' However, there are no underground piping systems carrying radionuclides at ENVY.

See Tab] A, Reliability Assessment ofthe Vermont Yankee Nuclear Facility, dated Dec. 22, 2008 (ENVYHC00522).

ENVY personnel conducted a significant review of the NSA Report and prepared a 6S-page Review ofVermont Yankee Comprehensive Reliability Assessment, presented as Exhibit EN MJC-2 to M. Colomb's prefiled testimony in the DPS proceeding on February] 1, 2009

("Response"). See Tab 9B, Review of the Vermont Yankee Comprehensive Reliability Assessment, Entergy Nuclear Vermont Yankee, Exhibit EN-MJC-2 and Appendix C (undated)

(ENVYHC00626, 00655). ENVY personnel reviewed in detail the NSA Report and provided a written response that included an analysis ofthe report's major conclusions and an errata sheet enclosed as Appendix C. Neither the ENVY Response nor the attached Errata sheet ("Errata")

addressed the second sentence ofthe statement quoted above.

2.

Chronology December 22, 2008 - NSA issued its Reliability Assessment ofthe Vermont Yankee Nuclear Facility. Section 2.9 on underground piping stated:

Act 189 included an in-depth inspection of'an underground piping system that carries radionuclides'. However, there are no underground piping systems carrying radionuclides at ENVY. As an alternative and in agreement with the Department of Public Service and the Public Oversight Panel, the buried piping in the Service Water System was selected for a detailed examination of the ENVY underground piping inspection program.

See Tab lA, ReJiability Assessment ofthe Vermont Yankee Nuclear Facility, dated Dec. 22, 2008 (ENVYHC00522).

Upon receiving the NSA Report, multiple ENVY personnel reviewed it. ENVY executives and senior managers stated that they generally focused on NSA's conclusions and recommendations, and paid comparatively less attention to the voluminous detail in the 415-page report.

41

ATFORNEY-CUENT PRIVILEGE ATFORNEY WORK PRODUCT Dreyfuss - His review ofthe NSA Report focused on the conclusions and recommendations. He was overall responsible for development ofthe Response and Errata. Thought he assigned Guglielmino to pull together inputs for the Errata. In hindsight, section 2.9's error should have been clear because there is buried radwaste piping that carries radionuclides. NSA personnel are nuclear engineers with experience at the director level or above, with BWR experience. NSA personnel must have known that VY has Auxiliary Offgas piping that carries radionuclides.

GugJielmino - Read the NSA Report only in part - the recommendations section and other sections as questions came up. At the time he reviewed the NSA Report, he was not very familiar with the configuration ofVY as an early BWR. Played a role as a clearing house for development ofENVY's Errata sheet. Recalled assigning section 2.9 for review by Bailey, LeFrancois, or both, and receiving Bailey's comments back.

Recalled a comment from Bailey asking what Act 189 was and not including it in the Errata.

Rademacher-He noticed the statement on page 262 during his review, but did not raise the issue. He believed the report to have many inaccuracies. Knew that NSA had been provided with detailed information on underground piping systems, and believed that NSA had selected which underground system it wanted to review based on its own criteria. Recalled discussing with Woyshner (NSA) about Condensate Storage System not being a good candidate system for the audit because it was trenched. Rademacher knew that NSA already had the table ofunderground pipes when it shifted its focus to Service Water. Recalled having been rebuffed by NSA when he asked for an opportunity to review and comment on the report in draft. His bottom line was that the executive summary was correct and ENVY agreed with it, thus he took no action about the statement.

Thayer - Did not read the NSA Report in its entirety; only read the executive summary, open items, and recommendations. Liked the conclusions and recommendations, and observed that it was a substantive document, so he did not worry further. No one directed his attention to section 2.9. Knew that Colomb had asked a team ofhis people at the plant to look at the NSA Report. Thayer was not involved with the Errata sheet.

Colomb - Reviewed NSA Report and concentrated on the recommendations. Recalled an ENVY commitment to review the recommendations and address them. Some insights were good, others less so. Did not recall reading section 2.9, but believes he probably did. Viewing it now, he recognizes that the statement taken literally and out ofcontext would not be accurate. Has not worked with NSA before, but they enjoy a very good technical reputation, suggesting that the inaccuracy ofthe statement, read literally, would have been obvious to NSA as well.

McElwee - Focused primarily on NSA's conclusions and recommendations. Did not recall anyone pointing out the statement quoted above or any other conversation regarding section 2.9.

42

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT LeFrancois - Did not recall reviewing the NSA Report. He said he tried to get a copy but became busy doing other things. LeFrancois reported that he was not asked to fact check the NSA Report. LeFrancois observed that the Errata section is long and the review of section 2.9 would likely have been performed by Bailey. LeFrancois stated that the first time he discussed the error in section 2.9 ofthe NSA Report was January 2010.

Hardy - His review ofthe NSA Report focused on section 2.4. Wierzbowski directed him to provide comments, but recalled he had none.

Metell, Mannai. Rogers, Skibniowsky, Limberger - Did not recall reviewing the NSA Report.

December 30, 2008 - Wierzbowski directed particular individuals to review their sections and provide any comments or corrections to Guglielmino. See Tab 2, Email from G. Wierzbowski to VTY - Managers Directors & Site VP Only re: Comprehensive Reliability Assessment (CRA) report review request, dated Dec. 30, 2008 (ENVYHC00525).

Wierzbowski - Did not participate in ENVY's Response or development ofthe Errata, although acknowledged sending the December 30,2008 email assigning sections ofthe NSA Report to individual ENVY personnel for development ofthe Response. Was the technical lead for the NSA audit. Did not read the entire NSA Report, but likely read the systems sections. Recalled noticing the statement about no underground piping carrying radionuclides in section 2.9, but also recalled noticing in the references that NSA had reviewed the documents that showed what underground piping systems there were at the site. Wierzbowski also knew that the NSA had been provided documents and briefings detailing the underground piping at ENVY. Wierzbowski stated that he believed that NSA had a sophisticated understanding ofENVY's BPTIP, and was not concerned that NSA had any significant misunderstanding.

January 9,2009 - Screen printout ofCRA Review Response Summary showed that Bailey was assigned to review section 2.9. See Tab 3, Screen printout ofCRA Review Response Summary, dated Jan. 9,2009 (ENVYHC00532).

January 14,2009 - Assignment Matrix spreadsheet confirmed that Bailey was assigned to review section 2.9. See Tab 4C, CRA Report Review Assignments (undated) (ENVYHC00536).

January 15, 2009 - Guglielmino forwarded Bailey's comments on sections 2.8 and 2.9 ofthe NSA Repert. Bailey sent in two comments for section 2.9. The first one was for page 262 and the Assessment Finding was "Act 189 included an in-depth inspection..." The VY Response section stated: "Do not know what 'Act 189' is. Not listed in the references." See Tab 5, Email from P. Guglielmino to T. Girroir, dated Jan. 15,2009 (ENVYHC00540-00542).

Bailey - Had no recollection of reviewing section 2.9 ofthe NSA Report. He thought it unlikely that he reviewed it because the language about no underground piping jumps out as wrong today. When shown the e-mail assignment to him and his written comments on pages 262 and 263, including a question regarding Act 189, Bailey acknowledged that he 43

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT likely read the section and commented. Bailey stated that he still had no recollection of reading or commenting on that language. He stated that he must have completely missed this issue. No one suggested to him how he should respond to section 2.9.

January 17, 2009 - Wierzbowski notified Rademacher and others that the "consolidation/

resolution phase ofthe CRA Report response" has started. See Tab 7, Email from G.

Wierzbowski to N. Rademacher et al. re: CRA Report Review Comments, dated Jan. 17,2009 (ENVYHC000551 ).

Late January 2009 - Following development ofENVY's Response, Thayer, Colomb, Dreyfuss and Rademacher met with Woyshner, Rainey and Allshouse ofNSA in Brattleboro to discuss ENVY's observations and corrections to the NSA Report. ENVY personnel requested that NSA review their comments, and issue a revision to the NSA Report. NSA personnel stated that there would be no revision. Rademacher recalled that Rainey offered that ENVY could make any corrections it thought necessary in testimony in the proceeding.

F-ademacher - Recalled that there was a pre-meeting held in which there may have been some discussion ofunderground piping and that the NSA Report statement with regard to underground piping had to be viewed in context. At the meeting with NSA, recalled ENVY personnel brought a copy ofthe Errata to the meeting.

Colomb - Does not recall discussing underground piping either at the pre-meeting or at the NSA meeting. Instead, purposefully stated that we would not nit-pick the NSA Report because the plant agreed with the conclusions. Kept the discussion on a high level.

Dreyfuss - Does not recall discussing underground piping either at the pre-meeting or at the NSA meeting. Recalled that it was a high-level discussion. Felt that validation by experts on ENVY's Response was appropriate.

Jhayer - Does not recall attending either the pre-meeting or the NSA meeting.

February 11,2009 - ENVY submitted its Response with the Errata in M. Colomb's prefiled testimony. The ENVY Response stated:

Entergy VY concurs with the CRA Report's conclusions relative to Underground Piping, exclusive oferrata and technical corrections provided in Appendix C.

See Tab 9B, Review ofthe Vermont Yankee Comprehensive Reliability Assessment, Entergy Nuclear Vermont Yankee, Exhibit EN-MJC-2 and Appendix C (undated) (ENVYHC00653). In addition, the Errata filed as an appendix did not note any issues at page 262 ofthe NSA Report.

See Tab 9B, Review ofthe Vermont Yankee Comprehensive Reliability Assessment, Entergy Nuclear Vermont Yankee, Exhibit EN-MJC-2 and Appendix C (undated) (ENVYHC00667).

44

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT McElwee - ENVY personnel prepared the technical review, Bykov and DRM counsel focused on editing the written product. Marshall at DRM issued a directive to ENVY personnel working on Response letting them know it likely would be included in the regulatory proceeding, informing them that their conclusions likely would influence ENVY's strategy going forward and to maintain confidentiality ofdrafts, inputs and comments.

3.

Analysis & Conclusion In reviewing the NSA Report, ENVY executives and senior managers focused on NSA's overall conclusions regarding plant reliability and recommendations. Only two ENVY witnesses recognized the inaccurate statement. Those two, Rademacher and Wierzbowki, also understood that NSA team members were very capable senior nuclear engineering managers with experience on similar BWR plants. They knew that information on ENVY's underground piping and its program, BPTIP, had been provided to NSA in response to NSA requests, and that NSA personnel had interviewed the most knowledgeable individuals on site regarding that program.

These witnesses noted that, although the statement was not literally accurate, they understood the purpose ofNSA's assessment was focused on plant reliability, and did not believe NSA actually misunderstood the extent ofunderground piping systems carrying radionuclides. Rather, they assumed that NSA was not interested in those relatively minor systems or systems that did not carry liquids. The Investigator found no evidence that either Rademacher or Wierzbowski communicated their separate observations to their superiors or anyone else, or that others also recognized the language was inaccurate.

ENVY's development ofa Response to the NSA Report incorporated reviews of particular sections by the subject matter experts. In the case ofsection 2.9, the engineer responsible for the BPTIP, Bailey. reviewed this language and apparently missed it. He had personally delivered a table ofunderground piping at the site to NSA personnel and discussed the program with them in at least three meetings. No review identified the discrepancy. The review was single track with no independent peer review.

The focus ofENVY senior management in responding to the NSA Report was on areas where NSA provided, in their view, an incomplete picture, or painted ENVY in an inappropriately poor light (e.g., issues already known or corrective actions already underway but not noted). The focus ofENVY management was on the main body ofthe report addressing NSA's principal conclusions and other recommendations and conclusions.

Only two ENVY personnel noticed the statement on page 262. For those two, the investigation found no evidence their decision not to raise the issue was animated by intent to bury an issue or avoid controversy. Both indicated they believed that NSA well understood the kinds ofburied piping that carried radionuclides at VY when it chose to write what it did on page 262 ofthe NSA Report.

45

ATTORNEY-CLIENTPRIVILEGE ATTORNEY WORK PRODUCT E.

Issue No.5: Did ENVY intend to mislead parties to Docket No. 7440 by responding to VPffiG discovery request No. 4-6 that there have not been any underground piping systems carrying radionuclides during ENVY's ownership of the VY Station?

1.

Issue On January 12, 2009, the Vermont Public Interest Research Group (VPIRG) promulgated its fourth round ofdiscovery requests, issuing ten new discovery requests referencing and seeking information related to the recently-issued NSA Report. Request No. 4-6 stated:

The Reliability Assessment on page 262 states that "there are no underground piping systems carrying radionuclides at ENVY."

a.

Have there been underground piping systems carrying radionuclides at ENVY at any time in the past?

b.

Did any previously-used underground piping systems that carried radionuclides ever leak? Ifso, please specify for each leak: isotope, quantity of leak, date ofleak, and duration of leak.

See Tab 6C, Fourth Round Discovery Requests Served By The Vermont Public Interest Research Group on EntergyNuciear Vermont Yankee, dated Jan. 12,2009 (ENVYHC00824-25).

On January 27,2009, ENVY asserted objections and responded:

a.

There have not been any underground piping systems carrying radionuclides during EVY's ownership ofVY Stl:ltion. Prior to 1992, the Chemistry Laboratory Drain Line carried radionuclides.

b.

Yes, but prior to EVY's ownership ofVY Station. See Attachment A.VPIRG:ENA-6.1 (Vermont Yankee letter to NRC: BVY-91

] 13, Nov. 18, 1991) (detailing the date and duration of the leak, the quantity ofthe leak and the isotopes involved) and Attachment A.VPIRG:ENA-6.2 (NRC Finding ofNo significant Impact (Feb.

27, 1996)), which contains the NRC's finding ofno significant impact and which approves the disposal-in-place proposal.

See Tab 26, State ofVermont Public Service Board; Docket No. 7440; Response ofEntergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. To Vermont Public Interest Research Group Fourth Set ofDiscovery Requests, dated Jan. 27, 2009 (ENVYHC00959).

The response to VPIRG:ENA-6 was inaccurate to the extent that there are buried pipes at VY that earry radionuclides. See supra Issue No. I.

46

ATIORNEY-CLIENTPRIVILEGE ATIORNEY WORK PRODUCT

2.

Chronology

a.

Background

March 2008 - John Marshall ofDRM, on behalfofENVY and Entergy Nuclear Operations Inc.

(ENOJ) submitted a Petition for authority to continue operation ofVermont Yankee after 2012.

On March 20, 2008, Marshall and Robert Miller, also ofDRM, issued a guidance memorandum to ENVY and ENOl on responding to the anticipated discovery requests. The memorandum describes the process for responding to discovery requests. It provides email contacts for DRM counsel to whom answers should be submitted. It counsels ENVY to provide separate answers to each individual question and subpart and instructs them to "read the question carefully before drafting your response." See Tab 2A, Memorandum to EntergyNuclear Vermont Yankee, LLC, Entergy Nuclear Operations, Inc., and affiliated Entergy Corporation entities from J. Marshall, R.

Miller, Jr., Downs Rachlin Martin PLLC re: Responding to Discovery Requests in Vermont Public Service Board Docket No. 7404, dated March 20, 2008 (ENVYHC00691). It also instructs, "[yJour responses should be directed solely to the question asked and should not offer information, analysis or opinions not requested." See id.

April 3, 2008 - Marshall and Miller issued a memorandum to Dennis, Dreyfuss, McElwee and Metell addressing "Document Management in Connection with State Approval ofLicense Renewal." This memorandum is tailored more specifically to the issues anticipated in the proceeding on continuing operations and set as goals:

]. The establ ishment ofa document management team with expertise (or access to expertise) regarding (a) Entergy VY personnel and procedures, (b) the subject matter oflicense renewal, (c) legal requirements for document retention and production, (d) company activities related to relicensing and (e) information technology processes.

2. A thorough understanding ofwhat documents currently exist that specifically relate to relicensing.

See Tab 38, Memorandum to W. Dennis et al. from R. Miller and J. Marshall, Downs Rachlin Martin PLLC re: Document Management in Connection with State Approval ofLicense Renewal 09674~00032, dated April 3, 2008 (ENVYHCO 1776).

DRM's April 3, 2008 memorandum also recommended that ENVY:

develop a company/legal/technical team that will be prepared to obtain issue-and component-specific documents and information from company or vendor records when specific questions or discovery is directed at the company See id.

The addressees for DRM's memorandum align the above goals and recommendation. D~nnis was a senior Ent~rgy in-house counsel in White Plains, NY with responsibility for legal support 47

ATTORNEY-CliENTPRIVILEGE ATTORNEY WORK PRODUCT for plants in the northeast including VY. Dreyfuss was the VY Director ofNuclear Safety Assurance, McElwee was the Senior State Regulatory Affairs Engineer, and MetelJ was the VY Project Manager for the License Renewal Project, including state and federal approval processes.

June 2008 - Kim Bridges (later Bykov) joined Entergy as an in-house counsel reporting to Dennis in the White Plains, New York office in early 2008. Shortly after joining the Company, Dennis assigned Bykov to oversee Vermont counsel in the already ongoing regulatory proceeding. Discovery in the proceeding had not yet begun. Bykov's working notes related to this matter begin on June 9, 2008.

Metell, the ENVY site Project Manager for license renewal. had been identified as the technical contact on site for DRM personnel in responding to discovery in the PSB proceeding. The process that DRM and ENVY established was to conduct a triage telephone call quickly upon receipt ofdiscovery requests to develop an initial plan for responding and to assign responsibility to specific individuals.

Marshall-Explained the process as having been established by DRM with substantial input from Bykov. Marshall indicated that time frames for responding to discovery requests in the PSB proceeding were very tight and that Entergy had experienced difficulties in an earlier proceeding, resulting in sanctions. Marshall said that DRM would circulate the questions immediately upon receipt. The next day, Metell, McElwee, Bykov, Marshall would discuss whether to object or respond and how the response would be generated. Metell was responsible for assigning to personnel within the ENVY organization those requests that called for plant history or a technical response. MeteU had hired GugJielmino and others to assist in researching responses. Individuals assigned to respond to particular requests sent their inputs directly to DRM. Marshall recalled that Bykov did not want a process that burdened plant management. DRM, usually Johnson, would assemble the inputs into an integrated ENVY response. DRM would then issue the draft response to Metell, McElwee, and Bykov for their review and concurrence before sending an integrated draft response to ENVY senior management for review.

ENVY senior management approval was not something that DRM affirmatively monitored. Marshall explained that DRM did not submit discovery responses until Bykov approved. Marshall indicated that, under the protocol established for this proceeding, whether prior senior manager approval was necessary for particular discovery responses was up to Bykov. Affidavits supporting the responses generally were circulated for signature shortly after the responses were issued.

Johnson - Described the triage and discovery response process in terms similar to Marshall. He noted that early rounds ofdiscovery were voluminous and involved more DRM and plant personnel.

Metell-Described the general triage process similarly to Marshall's explanation.

Bykov, McElwee, Marshall and usually Johnson participated. Sometimes others from the plant assigned to assist Guglielmino and Limberger.

McElwee - Described triage in generally the same terms.

48

AITORNEY-CLIENTPRIVILEGE AITORNEY WORK PRODUCT June 6, 2008 - the Vermont Legislature passed Act 189 establishing a requirement for a Comprehensive Reliability Assessment (CRA) to be conducted by an Audit Inspection Team, selected by the Department ofPublic Service (DPS) comprised of a sufficient number of qualified consultants, experts and technicians, none ofwhom may have worked for or at any Entergy nuclear plant within the last three years. See Issue No.1, Tab 6, Act 189, section 7 (ENVYHC00044-56).

July 11,2008 - Miller sent an email memorandum to Bykov titled "Entergy VY; Information Related to Discovery Process." Miller provided Bykov links to the PSB rules and the Vermont Rules of Civil Procedure (VRCP). He provided a short summary ofdiscovery practice before the PSB. He also attached the March 20, 2008 "standard" memorandum (described above) and, as an example, ENVY's responses to the second round ofdiscovery requests in the PSB proceeding dated May 12,2008. See Tab 2, Email fromB.MillertoK.Bridges re: Entergy VY:

Information Related to Discovery Process, dated July 11,2008 (attachment: Response to Dept of Public Service Second Set ofInformation Requests.pdf; En.Restruct.Discovery.lnstructions.Memo (5).Doc.) (ENVYHC00688-792).

July 31,2008 - Metell issued an email to Entergy personnel participating in the PSB proceeding.

DRM had provided a copy ofa 2003 PSB Order in an earlier ENVY proceeding in yvhich the Company had been sanctioned for failures in the discovery process. The DRM handwritten note says: "Mike, This should be required reading for all involved in discovery! DRM." Metell forwarded the sanctions Order to Bykov, Dennis, Rademacher, Dreyfuss, Mannai, Guglielmino, Wierzbowski, Rogers, and others, highlighting lessons learned from a PSB sanction in the Extended Power Uprate preceding, including delay, a fine ofmore than $50,000 and harsh words for counsel from the Board. Metell credited McElwee for finding the Order, and closed with the observation:

In any case, this serves as a good lessons-learned reminder on how important disclosure is, and the diligence that we will need to apply during our upcoming state disclosures.

See Tab 1, Email fromM.MetelltoK.Bridgesetal.re: Lessons Learned From EPU on Disclosure, dated July 3],2008 (attachments: ZXZhmm.PDF (Order Re: NEC Motion For Sanctions And Schedule, dated Oct. 7,2003)) (ENVYHC00669).

August-December 2008 - In addition to responding to discovery requests from the various parties in the PSB proceeding, ENVY personnel, beginning in August 2009, were responding to information needs ofthe team retained by DPS to conduct the CRA, Nuclear Safety Associates (NSA). Similar to responding to PSB discovery requests, ENVY also set up a process during the CRA for information requests from NSA to be collected, vetted and provided to NSA. Dreyfuss was the ENVY Management Sponsor for the CRA. Guglielmino was the Project Manager responsible for supporting NSA's information requests. Wierzbowski was the ENVY technical lead. GugHelmino, himself a contractor, drew upon a retired ENVY manager to respond to information requests from NSA. Responses to information requests from NSA were tracked and 49

AITORNEY-CLIENT PRIVILEGE AITORNEY WORK PRODUCT vetted using an Information/Question Request Form. Before responses were provided, they were peer reviewed and approved by Wierzbowski, or in his absence McElwee.

In anticipation ofdiscovery requests in the PSB proceeding, DRM instructed ENVY personnel to maintain copies ofcommunications among ENVY, NSA, DPS and the POP during NSA's conduct ofthe CRA. DRM also collected copies ofdocuments that ENVY personnel provided in response to information requests from NSA, and provided those materials in response to data request" to the other parties in the VSPB proceeding.

December 3,2008 - Miller and Marshall exchanged emails regarding an electronic document, "Buried Piping Action Plan.pdf," discussing whether it was proprietary. Marshall explained, "I did this one with Mike [Metell], and it's not. VY will piggyback other plants on buried pipe, and it is part ofthe commitments." See Tab 3, Email from J. Marshall to B. Miller re: RE: Emailing:

Buried Piping Action Plan.pdf, dated Dec. 3, 2008 (ENVYHC00793). The Buried Piping Action Plan is an Entergy Nuclear fleet-wide document that describes the process that would be used to develop common inspection, test and repair methods across the fleet. It does not identifY piping systems at the VY site.

December 22, 2008 - NSA issued the "Reliability Assessment ofthe Vermont Yankee Nuclear Facility" (NSA Report). See Issue 4, Tab 2B, Reliability Assessment ofthe Vermont Yankee Nuclear Facility, Provided by Nuclear Safety Associates to the State ofVermont Department of Public Service, dated Dec. 22, 2008 (ENVYHC00527-31).

b.

Initial Response to VPIRG:ENA-6 January 12,2009 - VPIRG issued its Fourth Set ofDiscovery Requests to ENVY. Each ofthe ten requests referenced language in the NSA report. Eight ofthe ten requests referenced Section 1.0, Management and Organizational Performance Assessment. One (vpIRG:ENA-7) referred to Attachment D to Appendix G (a timeline related to investigation ofa cooling tower event).

The remaining request, VPIRG:ENA-6, referred to the language regarding underground piping at page 262. The prior week, VPIRG had served a similar, larger, set ofdiscovery requests on DPS. (VPIRG:DPS.l.14 is identical to VPIRG:ENA-6.) See Tab SC, Fourth Round Discovery Requests Served By The Vermont Public Interest Research Group on EntergyNuclear Vermont Yankee" dated Jan. 12,2009 (ENVYHC00811-18).

VPIRG's Instructions in the request to ENVY included the direction, "The response to each request should be made under oath by a person competent to testify concerning the response...

~" See Tab SC, Fourth Round Discovery Requests Served By The Vermont Public Interest Research Group on Entergy Nuclear Vermont Yankee, dated Jan. 12,2009 (emphasis in original)

(ENVYHCOOSll). It also defined these requests as "continuing to the full extent permitted by law," and directed supplementation as additional information becomes available. See Tab se, Fourth Round Discovery Requests Served By The Vermont Public Interest Research Group on Entergy Nuclear Vermont Yankee, dated Jan. ]2,2009 (ENVYHC008J 1). Finally, it noted:

Some ofVPIRG's requests may make particular reference to a portion ofa filing in this matter. Notwithstanding this specific direction, these items 50

ATTORNEY-CliENTPRIVILEGE ATTORNEY WORK PRODUCT should be understood to seek discovery of all available information available to you that is responsive to the questions stated.

See id. at ENVYHC00812.

Reques1: No.6 stated:

The Reliability Assessment on page 262 states that "there are no underground piping systems carrying radionuclides at ENVY."

a.

Have there been underground piping systems carrying radionuclides at ENVY at any time in the past?

b.

Did any previously-used underground piping systems that carried radionuclides ever leak? Ifso, please specify for each leak: isotope, quantity of leak, date of leak, and duration of leak.

See id. at ENVYHC00814-15.

January 12, 2009 - Approximately 30 minutes after VPIRG issued the requests, Marshall reported to Bykov, Metell, McElwee, Miller a conversation with VPIRG counsel: "I pointed out several ofthe questions [that] ask Entergy to speculate about NSA's conclusions, and she [DPS counsel] agreed that that might be the case...." See Tab 6A, Email from J. Marshall to K.

Bykov, H. Metell et al. re: [blank], dated Jan. 12,2009 (ENVYHC00819). Marshall closed, "Mike, as discussed, we may be able to shortcut the triage/assignment procedures. Please advise." See Tab 6A, Email fromJ. MarshalltoK. Bykov,H. Metell et at. re: [blank], dated Jan.

12,2009 (ENVYHC00819).

January 12, 2009 - Twenty-five minutes later, MeteH responded to Marshall, with copies to McElwee, Miller, Johnson, Guglielmino, Bykov et al.:

John: I have reviewed the questions and believe they must all be answered by NSA and DPS. All questions require knowledge ofthe report writers and not the report recipients. Although we can interpret the written word, we can not guess at what the original authors intended. Conversely, jf NSA and DPS add clarification, I would be very interested in that.

See Tab 6, Email from H. Metell to J. Marshall re: 4th VPIRG Disclosure Request, dated Jan. 12, 2009 (attachments: Today's VPIRG Discovery Filing, Docket 7440-Contains Proprietary Information; Docket 7440: VPIRG's Letter to Entergy) (ENVYHCOOS) 9).

Metell - On December 20, 200S, he suffered an injury that required surgery and he worked primarily from home for the next six weeks. He worked from home on all days relevant to this issue except January 26,2009. Understood that VPIRG:EN.4-6 raised difficult issues regarding how to respond based on his general knowledge of the existence of underground piping systems at the plant and his knowledge ofthe abandoned radwaste 51

ATTORNEY-CLIENTPRIVILEGE ATTORNEY WORK PRODUCT dilution line. He recalled Gary Bailey having Ebasco (ArchitectlEngineer) drawings of pipe routings below ground on this VY site.

January 12, 2009 - On a telephone conference that afternoon, Marshall, McElwee, Metell and GugJielmino conducted a "limited triage" ofVPIRG's Fourth Round requests. MeteU assigned the response to VPIRG:ENA-6 to Guglielmino, to find the response to the question with instructions to speak with Rogers. Because Bykov was not on the call, Metell sent her an email summary ofthe results. See Tab 8A, Email from K. Bykov to H. MeteH re: Your voice Mail, dated Jan. 12,2009 (ENVYHC00840).

Metell replied:

Kim-I discussed VPIRG questions with John Marshall, Dave McElwee, and Peter G after our 4:30 PM telecom on procedures. We basically agreed to:

- Object to the "mind-reading" questions

- Provide some existing answers to previous disclosure questions that closely match VPRIG [sic] (e.g. Long Range Plan)

.Provide some documents to the ones that we could (peter G[ugJielmino] had the lead on 3 items)

Based on the above, J believe things are resolved and John is comfortable with the direction chosen.

See Tab 8, Email from H. Metell to K. Bykov re: RE: Your voice Mail, dated Jan. 12, 2009 (ENVYHC00840).

Metell-No discussion ofscope ofthe request during the call. MeteH understood the scope to be within the context ofthe CRA audit; did not see the request as new start of general discovery. Knew that most ofthe underground piping at VY is trenched, and so outside the scope ofNSA. No recall ofdiscussion ofthis limitation, but believed it was the shared perspective. Rogers was the first person who came to his mind for question 4 6, because of his history at the plant and because, as Manager of Design Engineering, he would have knowledge ofmodifications to address past leaks. Not very familiar with Bailey at this time, who was a relatively new hire. Did not discuss the abandoned radwaste discharge line. Assigned Guglielmino to speak with Rogers. No specific recollection that he shared his feeling about this question being potentially difficult with anyone. The one person who Metell speculated that he could have shared this feeling With, Miller ofDRM, denied that he did.

McElwee - Recalls Guglielmino and Limberger participated in call; Metell probably on the phone; does not recall which lawyers. probably Marshall, MiJler or Bykov. No recall ofdiscussion of reasons for request or special discussion about no. 4-6 as being an outlier; does not recall assignment, would have been made by Metell. Understood scope oflate discovery as limited to the scope ofthe NSA Report; direction from senior 52

ATTORNEY-CLIENTP RlVILEGE ATTORNEY WORK PRODUCT management to avoid expansions of the scope ofthe audit or proceeding; believed this was a common understanding, not discussed.

Guglielmino - No previous involvement with earlier rounds of discovery in the PSB proceeding; assumed that Metell assigned him to this project because he had been the lead on responding to information requests fi*om NSA, whose report the discovery requests referenced; focused on subpart (b); recalls being assigned to talk with Rogers.

Ran into Drouin before talking to Rogers; Drouin told him of the Chern Lab Drain Line leak and report to the NRC; assigned Limberger to find the report to NRC. Did not refer the question to Bailey, the person responsible for the buried piping inspection program, or to Bailey's supervisor, LeFrancois.

Umberger - Recalls attending the limited triage call in McElwee's office; recalls PSB discovery process as less formal than that used for NSA requests; recalls being assigned by GugJielmino to track down Rogers and being unsuccessful; recalls finding report to the NRC on Chern Lab Iine leak.

Marshall-Recalls the requests arriving at the same time as work on preparation of ENVY's response to the NSA Report; addressed VPIRG Fourth Round requests at the end ofa call set up for NEC Third Round requests. Marshall has no notes from the calls.

He recalls Metell, not others, does not recall assignments made for specific requests.

Johnson - No recall of participation on the triage call.

J~nuary 13,2009 - Limberger reported to Metell that, among other things, he had taken care of "a special request from Peter [Guglielmino] regarding buried piping containing radionuclides."

See Tab 9, Email from W. Limberger to H. Metell re: RE: Status ofVPIRG Response Privileged and Confidential, dated Jan. 13, 2009 (ENVYHC00841).

Umberger - No recall ofthe email, the special request or how he had addressed it.

January 15,2009 - Johnson sent Rogers an email, with copies to Metell and McElwee, quoting the language ofVPIRG:ENA-6 and asking, "Can you answer subpart (b)?" See Tab IlA, Email from B. Johnson to J. Rogers re: RE: Contact info for Jim Rogers, dated Jan. 15,2009 (ENVYHC00843).

Johnson - No recall ofwhy he directed the request to Rogers or why limited to subpart (b).

Rogers - Very limited recall; recalls the subject generally, but no specific conversations; not sure whether he saw the question. Expects the initial input was done by Metell or Guglielmino.

January 16,2009 -MeteII responded to Johnson:

53

A1TORNEY-CLIENT PRIVILEGE A1TORNEY WORK PRODUCT Barclay [Johnson]: As part ofthe "limited" triage call on 3rd (sic) round VPIRG questions that we had earlier this week, we assigned Peter G[ ugJielmino] the lead to contact Jim Rogers. Peter now has all the background information on this item (e.g. historic design change, radioactive element assessment).

Jim Rogers always has an extremely tight meeting schedule and is tough to reach. Therefore please contact Peter first, as he has horsed up on the background material and has the documentation you need. Also note that today is an offFriday for VY.

See Tab] 1, Email from H. MetelJ to B. Johnson re: RE: Contact Info Jim Rogers, dated Jan. ] 6, 2009 (ENVYHC00843).

January 20, 2009 - Guglielmino emailed a draft answer to Johnson with copies to Metell and McElwee. Rogers is not copied. Guglielmino wrote:

a. Have there been underground piping systems carrying radionuclides at ENVY at any time in the past?

Response: Yes. Pre] 992 - Chemistry Laboratory Drain Line

b. 1) Did any previously-used underground piping systems that carried radionuclides ever leak?

Response: Yes b.2) Ifso, please specify for each leak: isotopes, quantity ofleak, date of leak, and duration ofLeak.

Response: See attached document -Vermont Yankee letter to NRC:BVY-91-I13, dated November 18, ]991.

Guglielmino attached a copy ofthe referenced letter to the NRC. See Tab 12B, Email from P.

Guglielmino to B. Johnson. re: VPIR 4th Set of Discovery -- Question 6, dated Jan. 20, 2009

{

Attachment:

VPIRG:ENA-6 (Vermont Yankee letter to the NRC: BVY-91-113, Nov. ]8, ]99]>>

(italics in original) (ENVYHC00845-46).

January 20, 2009 - Half an hour later, Johnson revised the answer to DRM's format for the proceeding and forwarded it to Marshall:

Based on what Peter [GugJielmino] has provided, the answer appears to be as follows:

A.VPIRG:EN.4-6:

a) Yes, prior to 1992, the Chemistry Laboratory Drain Line carried radionuclides.

54

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT b) Yes. See Attachment A.VPIRG:ENA-6 (Vermont Yankee Jetter to NRC: BVY 91-] 13, Nov. 18, 1991), which details the date and duration ofthe leak, the quantity ofthe leak, and isotopes involved.

See Tab12A, Email from B. Johnson to L. Nugent, K. Shufelt, 1. Marshall re: VPIRGA-6, dated Jan. 20,2009 (Attachments: BVY 91-1 13.pdf) (ENVYHC0084S).

January 20, 2009 - Marshall directed his secretary to insert the response into the draft answer.

See Tab J2, Email from J. Marshall to L. Nugent re: FW: VPIRG.4-6, dated Jan. 20, 2009 (Attachments: BVY 91-113.pdf) (ENVYHC00845).

Marshall - Had no independent knowledge of underground piping at VY that carried radionuclides; was not aware that Metell was Jimiting the response to this question to piping systems he understood to be within the scope of the CRA; no reason to question the information that was being provided.

Johnson - Has substantially same recollection as Marshall's.

January 21, 2009 - DPS provided its response to VPIRG:DPS.l-14 (identical to VPIRG:ENA 6), sponsored by State Nuclear Engineer U. Vanags:

NSA did not seek out the information requested because it was beyond the work scope and matrix agreed upon by the POP and DPS. However, the DPS is aware that there is one abandoned underground pipe that was in the past used to carry radionuclides. The Department understands that the Vermont Department of Health monitors a number ofsampling wells. To date, the DPS is unaware that the Department ofHealth has detected any evidence ofintrusion into the groundwater from the abandoned pipe.

Marshall-Viewed this as consistent with Guglielmino's input; no knowledge ofother lines; no discussion ofthis response. No other witnesses interviewed recalled discussion ofVPIRG:DPS.1-14.

January 22, 2009 - Johnson sent to Guglielmino, McElwee and Metell, copy to Marshall, draft responses to the VPIRG 4th round discovery requests and asked for sponsors to be identified as Persons Responsible for each answer. Johnson proposed names based on earlier calls or similar discovery responses. For VPIRG:ENA-6, he suggested either Rogers or Guglielmino. The draft response was unchanged from his earlier reformatting of Guglielmino's input except that Guglielmino is added as the Person Responsible. See Tab 14, Email from B. Johnson to P.

Guglielmino, D. McElwee, H. Metell re: Draft Responses to VPIRG 4th Round, dated Jan. 22, 2009 (attachment: EN_Relicensing_ DISC.DRAFT.VPIRG 4th Round Responses (2).DOC.

(ENVYHC00873).

January 22, 2009 - Metell responded later that day, agreeing that either GugJielmino or Rogers should be named as the Person Responsible for VPIRG:EN.4-6. MeteU also suggested a 55

AITORNEY-CUENTPRIVILEGE AITORNEY WORK PRODUCT substantive addition to the response - to add the NRC's response closing out the 1991 letter on the Chern Lab Drain Line leak. See Tab lSD, Email from H. Metell to B. Johnson re: RE: Draft Responses to VPIRG 4th Round, dated Jan. 22, 2009 (ENVYHC00888).

January 22, 2009 - The same day, McElwee indicated that he also agreed with the responder assignments; Johnson asked Guglielmino for assistance finding the NRC response to the plant's notification as suggested by MeteH, and Guglielmino indicated he would check. Marshall then replied to the same group that he wanted to get a draft to Bykov that evening, and circulate it to management before the weekend. See Tab ISB, Email from D. McElwee, H. Metell, B. Johnson re: RE: Draft Responses to VPIRG 4th Round, dated Jan. 22, 2009 (ENVYHC00887).

Johnson - No recall why the Person Responsible was changed to Jim Rogers; no other witness interviewed recalled a reason for the shift.

Guglielmino - Stated that he is a contractor without history at the plant, and that he would be identified as a Person Responsible only when the response was to provide a document.

January 22, 2009 - Shortly before 5:00 p.m. that same evening, Johnson sent the draft responses to Bykov for her review, noting that bracketed comments "stem largely from the responses received yesterday from NSA to identical questions." There were no bracketed comments related to VPIRG:EN.4-6. See Tab 18B, Email from B. Johnson to K. Bykov re: Draft VPIRG Fourth Round Responses 1-22-09, dated Jan. 22,2009 (ENVYHC00913).

Glew - Stated that he monitored the NSA audit and PSB proceeding from the perspective ofthe prospective plant owner. Stated he was copied on most correspondence; recalls he had input to review ofENVY's response to NSA report at a big-picture level, not

,::ngineering details. Recalls DRM copied him on discovery requests, responses and meeting notices, but he did not participate unless a question went to a particular area of interest to the future owner, e.g. capital investments, forward looking commitments.

January 23, 2009 - At approximately II :00 a.m. the following morning, Bykov returned her comments to DRM, which she characterized as "line edits as well as areas where I've asked for additional clarification." asked to discuss them, and suggested a revised draft to go to management that day. See Tab 19A.Emaii from K. Bykov to 1. Marshall, B. Johnson. L. Nugent re: RE: Draft VPIRG Fourth Round Responses 1-22-09, dated Jan. 23. 2009 (ENVYHC00919).

Bykov's edits on 4-6 made the follOWing changes:

OBJECTION: Entergy VY objects to the extent this question seeks information prior to EVY's ownership ofVY station and thus outside the scope of its possession. cu§tody or control. Without waiving any objection. Entergy VY responds:

a.

There have not been any underground piping systems carrying 56

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT radionuclides during EVY's ownership ofVY station. ¥es. Prior to 1992, the Chemistry Laboratory Drain Line carried radionuclides.

b.

Yes. but prior to EVY's ownership ofVY Station. See Attachment A.VPIRG:ENA-6 (Vermont Yankee letter to NRC :BVY-91-113, Nov. 18, 1991);-, (wITiel4 detaileding the date and duration ofthe leak, the quantity ofthe leak and the isotopes involved.)

See Tab 20B, EN Relicensing DISC.Draft. VPIRG 4th Round Response, dated Jan. 23, 2009 (ENVYHC00935).

January 23, 2009 - Marshall directed his assistant to accept all ofBykov's comments and sought the requested call with Bykov to address her questions. See Tab 19, Email from 1.

Marshall to K. Bykov, B. Johnson et a!. re: RE: Draft VPIRG Fourth Round Responses 1-22-09, dated Jan. 23, 2009 (ENVYHC00935).

Marshall-Recalled that Bykov wanted to ensure that response was limited to information within its possession, custody or control; VYNPC is a separate entity with information of its own. Marshall agreed with Bykov; point was not to limit time scope of response to term ofEntergy ownership, but rather to say ENVY's only obligation is to provide info within its possession, custody or control. Did not see the amendment to part

a. as substantive. Saw it as a cJearer restatement ofearlier implication. No discussion about need to validate. Believes he had been told by McElwee, Metell and others that there were no underground piping carrying radionuclides, no independent knowledge to the contrary; no discussion ofabandoned radwaste dilution line.

Johnson - Recalled reading the objection and not thinking it remarkable; understood Bykov's desire to limit to information within client's possession, custody or control; did not recall whether similar objection had been invoked in earlier broad-scope requests.

Did not understand the change to part a. as substantive.

c.

ENVY Approval ofResponses to VPIRG Fourth Round Requests January 23, 2009 - Early afternoon, Johnson emailed Guglielmino, McElwee, and Metell with copies to Bykov and Marshall, circulating the next draft ofthe responses, reflecting Bykov's comments (above) and also attaching the DPS responses to similar questions (including Vanags' response to VPIRG:DPS.l-] 4 quoted above). Johnson wrote: "Please also note that given the due date we would like to recirculate these to management at the end ofthe day." See Tab 20, Email from B. Johnson to P. Guglielmino, D. McElwee, H. Metell re: VPIRG 4th Round Comments/Questions, dated Jan. 23, 2009 (ENVYHC00920).

The answer to VPIRG:ENA-6 had been modified to include Bykov's comments and to include reference to the NRC's February 1996 Environmental Assessment. The Responsible Person is identified as Rogers. See Tab 20B, EN Relicensing DISC.Draft. VPIRG 4th Round Response, Jan. 23, 2009 (ENVYHC00935).

57

ATTORNEY-CliENTPRiVILEGE ATTORNEY WORK PRODUCT Guglielmino - Explained that he would not normally be assigned as a responsible person for a substantive response. He might be identified as a responder when a response simply provided a document, such as one he provided to the NSA during the CRA. No recall of specific conversation.

Johnson - No recall ofwhy Rogers was not included.

January 23, 2009 - Metell and McElwee gave their approvals. Metell wrote to Johnson:

uBarclay-your edits work for me. From my view, it is appropriate to point out (as you have done) that we can not get into the minds ofthe authors." McElwee immediately responded to all:

"I'm good as well." See Tab 23, Email from D. McElwee to H. Metell, B. Johnson re: Re:

VPJRG 4th Round Comments/Questions, dated Jan. 23, 2009 (ENVYHC00945).

Metell - When he reviewed the answer, he believed he had a good answer from a credible person (Rogers). Metell also thought it was a clever answer that avoided saying too much. Metell knew about the Chern Lab Drain Line issue, and also expected that the other parties would know about it as well. When asked whether he would have signed offon the answer himself, Metell answered that he did not know.

McElwee - Does not recall the approval ofthis response.

Etogers - Brought into the process late; recalls he was shown a draft at some point and being asked about the Chern Lab Drain Line; sometime he was asked to be the person responsible for the entire response.

January 23, 2009 - Marshall set up a conference call for 3:45 p.m., with Bykov, McElwee, GugJielmino, Metell and Miller to discuss ENVY's responses to other NEC Discovery Requests

- to which DRM and ENVY personnel also were responding at the same time. Guglielmino responded to the group with a copy to Johnson, requesting:

Can we also discuss NSA's response to VPIRG's fo[u]rth set ofdiscovery requests - Especially those areas that Barclay Johnson asked us to consider?

See Tab 22, Email from P. GugJielmino to 1. Marshall, K. Bykov, D. McElwee, W. Glew, H.

Metell et al. re: Re: Entergy Conference Call re NEC 4th Set Discovery Requests, dated Jan. 23, 2009 (ENVYHC00943).

GugJielmino - Does not recall the email or what issue he wanted to discuss.

January 23,2009 - Just before 4 p.m., Marshall's secretary addressed Thayer, Colomb, Dreyfuss, Rademacher, Metell, Bykov et a!.:

Please note that VY Station management is revisiting all responses in light ofNSA's responses to identical questions and is paying particular 58

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT attention to questions 4-2, 4-3, 4-4, 4-5, & 4-10 where the following questions remain...

Rogers was not included on this distribution. See Tab 24, Email from L. Nugent to 1. Thayer, M.

Colomb et aL re: Dkt 7440: Draft responses to VPIRG 4th Round Discovery, Jan. 23, 2009 (ENVYHC00948).

January 26, 2009 - At 5:30 p.m., Johnson emailed Bykov, copy to Marshall, reminding her:

We haven't received comments on the 4th Round ofVPIRG requests, but I understand from Dave McElwee that John Dreyfuss is, or will be, looking at these presently and that they may be able to provide input later.

John Marshall mentioned that you may want to recirculate these to management. Would you like me to recirculate these or wait for any input from the Plant?

Bykov responded shortly before 6:00 p.m.:

Barclay - thanks very much. On the 4th round, which are due tomorrow, please have an email sent tonight to the management group, with a gentle reminder that these responses are due tomorrow. Please also give them a reasonable time by which they should provide comments to DRM.

See Tab 25, Email from J. Marshall to B. Johnson re: FW: Draft NEC Third Round Responses &

VPIRGFourth Round 1-26-09, dated Jan. 26, 2009 (ENVYHC00950).

January 26, 2009 - At 6:35 p.m., Johnson sent an email to ENVY management reminding them that the response was due the following day, and asking for substantive comment by 9:30 a.m.

See Tab 27, Email from B. Johnson to J. Thayer, M. Colomb, J. Dreyfuss, N. Rademacher et al.

re: Dkt 7440: Draft Responses to VPIRG 4th Round Discovery, dated Jan. 26, 2009 (ENVYHC00966). Rogers was not included on this distribution.

January 27, 2009 - At 5:39 a.m., Rademacher replied, "'No Comments. Norm." See Tab 34, Email fromN.RademachertoB.Johnson.J.Thayer.M.Colombetal.re: RE: Dkt 7440: Draft Responses to VPIRG 4th Round Discovery, dated Jan. 27, 2009 (ENVYHCOI761-63).

At 9: 13 a.m., Metell replied to all with comments to another question, and noting, "Excellent draft to tough questions," See Tab 27, Email from M. Mete11 toB. Johnson eta1. re: RE: Dkt 7440; Draft Responses to VPIRG 4th Round Discovery, dated Jan. 27, 2009 (ENVYHC00965 66). See Tab 27B, Email from M. MeteU to B. Johnson etaI., re: RE: Dkt 7440; Draft Responses to VPIRG 4th Round Discovery, dated Jan. 27, 2009 (ENVYHC00965-66). Johnson did not agree with Metell's suggested change to the other question and explained why to Marshall and Bykov, who agreed with Johnson and rejected the change. See Tab 27A, Email from B. Johnson to J. Mar'shall and K. Bykov re:RE: Dkt 7440; Draft Responses to VPIRG 4th Round Discovery, dated Jan. 27, 2009 (ENVYHC00965). At 12:23 p.m., Marshall wrote to Bykov:

59

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT Kim, other than Mike's one comment, addressed below, and Norm's

[Rademacher] sign-off, we have received no further comments. Is there anyone else to whom we should reach out, or may we begin production?

See Tab 27, Email from J. Marshall to K. Bykov, B. Johnson re: RE: Dkt 7440; Draft Responses to VPIRG 4th Round Discovery, dated Jan. 27, 2009 (ENVYHC0096S).

January 27, 2009 At ]2:58 p.m., Bykov replied: "Yes, please begin production on the response due today. Thanks." See Tab 35, Email from K. Bykov to 1. Marshall, B.

Johnson re: RE: Dkt 7440; Draft Responses to VPIRG 4th Round Discovery, dated Jan.

27,2009 (ENVYHC01764).

Rademacher -- No recall of approving the responses; approval was not necessary because he was not a person responsible; was on vacation during the development ofthe response and had left Rogers in charge; no recall ofdiscussion with Rogers.

No recall offocusing on the accuracy ofthe statement cited in the question on page 262 ofthe NSA report in the context ofthis response.

Rogers-Not sure he had seen changes since Guglielmino's initial submittal; no recall ofdiscussions.

Marshall-No recall or records ofother approvals; likely Dreyfuss responded, perhaps by phone related to those questions for which he was the Persons Responsible; did not always get replies from Colomb or Thayer; no knowledge of what, ifany, additional approvals Bykov received separately.

Johnson - No recall ofother approvals. Believes MeteH or Guglielmino would have gone to Rogers ifnecessary, because Metell pushed him away when he originally contacted Rogers; knew Rogers would get affidavit after; did not view the Bykov changes as a substantive change to the response necessarily requiring confirmation from Rogers.

January 27, 2009 - DRM issued ENVY's responses to VPIRG's Fourth Set ofDiscovery Requests. VPIRG:EN.4-6 identifies Rogers as the person responsible. See Tab 29C, Docket No.

7440, Response ofEntergy VY to VPJRG's Fourth Set ofDiscovery Requests, dated Jan. 27, 2009 (ENVYHC00972).

Marshall, MiJler and Johnson - Each stated that he did not understand that there was any issue about either the accuracy ofthe statement on page 262 ofthe NSA Report that there were no underground piping systems carrying radionuclides, or the response to VPJRG:EN 4-6. Each stated a beliefthat there were in fact no underground piping systems carrying radionuclides at the plant. According to them, no one at ENVY expressed any concern that there was even a potential issue with the question or that to make the answer non-controversial, one had to read the question as limited to the scope ofthe eRA. They said that no one indicated they were responding by interpreting the 60

ATTORNEY-CUENTPRIVILEGE ATTORNEY WORK PRODUCT phrase "underground piping that carried radionuclides" as they understood NSA had done.

d.

Subsequent Consideration February 5, 2009 - DPS Counsel Hofmann forwarded to Marshall a draft DPS document that provided answers to POP questions regarding the NSA Report, stating:

Did any underground piping at ENVY ever have radionuclides?

Response

The study of piping that previously carried radionuclides was not part of the NSA scope for this Reliability Assessment as established by the agreed-upon regulatory matrix.

See Issue No.1, Tab 37, Email from 1. Marshall to J. Dreyfuss, D. McElwee re: FW: Any ofthis confidential, dated Feb. 5,2009 (attachment: Exhibit DPS-PaneJ-3 Draft.docs.doc)

(ENVYHC00364, 66).

March 4,2009 - After reviewing an ENVY document, "Assessment ofPotential for Radioactivity and Hazardous Materials on the Vermont Yankee Plant Site that Will Have an Effect on Decommissioning," dated April 1999, Johnson sent an email to Marshall:

My question about the underground piping stems from items 3,9, & 14 on pages 9-11 ofthe attached Radioactive & Chemical Release Study.

VPJRG.4-6 asked about underground piping that carried radionuclides.

Our response focused on the chemistry line and I wonder now ifany ofthe items in the Radioactive & Chemical Release Study are responsive to VPJRG.4-6.

Ifappropriate, I wi1l follow up with Wayne and let him know this is something to be done after the current supplementation efforts.

See Tab 30, Email from J. Marshall to B. Johnson re: FW: Underground Piping, dated March 4, 2009, dated March 4, 2009 (ENVYHC00986).

Items 3,9 and ]4 ofthe referenced 1999 Radiation and Chemical Release Study provided:

3.

There is a abandoned JOG piping which contains charcoal, at the base ofthe stack.

9.

During the Recire Outage, a septic system was identified to contain trace amounts ofcontamination. Contractors were previously hired to spread waste in fields. Because ofthe potential hazard, we 61

ATTORNEY-CLIENTPRIVILEGE ATTORNEY WORK PRODUCT now dispose ofall sludge on site. All ofthe septic tanks on site need to be considered potentially contaminated.

14.

Other lines in house heating boiler and makeup pretreatment rooms may go into the ground also. These lines may be contaminated and could leak as the chern drain line did. Rich Pagodin performed an assessment ofthese lines.

See Tab 29D, Assessment ofPotential For Radioactivity and Hazardous Materials on the Vermont Yankee Plant Site That Will Have an Effect on the Site Decommissioning, dated April 1999 (ENVYHC00979-80).

March 4, 2009 - At 3:41 p.m., Marshall emailed MetelI:

Pages 9-1 I of the attachment refer to pi pes at the base ofthe stack having charcoal filters and pipes under the Chern lab. Entergy VY responded as indicated in the second attachment to a question about underground pipes containing radionuclides. Are the pipes referenced at those pages the same as the pipes referenced in the attached response andlor ones that did not include radionuclides?

See Tab 29B, Email from 1. Marshall to H. Metell re: Underground Pipes, dated March 4, 2009 (ENVYHC00971). Marshall apparently meant to include a copy ofthe document Johnson had identified and a copy ofthe response to VPIRG:EN.4-6 in the email to Metel!. The email records show that Marshal.l inadvertently included two copies ofthe discovery response, but did not include the 1999 Radioactive & Chemical Release Study.

March 4, 2009 - At 4:10p.m., Marshall told Johnson: "I emailed Mike. Give Wayne

[Limberger] a call." See Tab 30, Email from J. Marshall to B. Johnson re: FW:

Underground Piping, dated March 4, 2009 (ENVYHC00986).

March 4, 2009 - At 5:30 p.m. Metell responded to Marshall, with a copy to Bykov:

I believe there is a context issue here;

• As I understand it, the underground radionuclides piping asked for in the CRA primarily referred to water systems. The chern drain line was the only water system and VYNPC dealt with that line before Entergy purchased the plant.

• There are underground concrete headers that go out to the stack that carry radioactive gaseous material for release to the stack (e.g., Advanced Offgas or AOG). This is a common configuration for all boiJing water reactors by GE. However, there is no particular aging mechanism as there would be for water systems (e.g. corrosion), and so leakage is not 62

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT commonly considered an issue. This is probably why NSA did not identii)! it is as an underground piping systems subject to leakage.

• The Chem lab pipe and the Advanced Offgas header systems are 2 different systems.

See Tab 29A, Email from H. Metell to J. Marshall re: RE:Underground Pipes, dated'March 4, 2009 (ENVYHC00971).

March 4,2009 - At 6:02 p.m., Marshall forwarded Metell's reply to Johnson, noting "This should answer your question." See Tab 29, Email from J. Marshall to B. Johnson re: FW:

Underground Pipes, dated Mar. 4, 2009 (attachment: Entergy VY's Response to VPIRG 4th Round Requests 1-27-09.pdf) (ENVYHC00971).

Metell-Does not recall any discussion with Marshall or writing the email; his summary is consistent with his understanding ofthe scope ofNSA audit. Metell does not know whether he independently sought the 1999 document; thinks not.

Marshall - Does not recall any conversation with Metell. The email refreshed his recollection ofhaving seen this issue. He thinks a conversation with Johnson likely preceded email from Johnson; no recall ofany subsequent conversation. Marshall does not believe he critically compared Metell's response Johnson's study cites. Believes he would have accepted technical response from client's designated technical lead; acknowledges he was surprised to learn ofanother type of piping underground - different from original understanding. He recalls now that he learned that the response included a "context" (scope ofthe NSA audit) interpretation. He thought that Metell's answer was technically sufficient, and therefore DRM did not need to supplement the response to 4-6.

He also was aware that DPS had interpreted the same request language addressed to them in the that way.

Johnson - Recalls receiving Marshall's reply without follow-up instructions, actions, or concerns; understood Marshall to be saying nothing else needs to be done, Le., no supplement to VPIRG:EN.4-6 necessary; probably did not critically examine Metell's r,esponse, does not recall doing so. No one told him to forget it, or to bury the issue. Had no concerns about the answer. Does not believe he called Limberger, no records of having done so.

Limberger - No recall or record ofaddressing this subject.

March 5, 2009 - DRM paralegal sends affidavit for VPIRG Fourth Round Responses to Rogers.

See Tab 36, Email from L. Bezio to 1. Rogers re: RE: Dkt 7440; Draft Responses to VPIRG 4th Round Discovery, dated Mar. 5,2009 (ENVYHC01767).

March 16,2009 - DRM paralegal sends reminder to Rogers, "I have not yet received your affidavit...." See Tab 37, Email from L. Bezio to J. Rogers re: VT PSB Affidavit for Round 4, dated Mar. 16, 2009 (ENVYHCO 1769).

63

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT March 17,2009 - Rogers responds to DRM paralegal, "I have no idea where this is." DRM Paralegal provides another copy with instructions. Rogers replies: "Any idea what the response was? I have not read the document." DRM paralegal responds, "Attached are the Responses,"

attaching the full response to all Fourth round requests. See Tab 37, Email from L. Bezio to J.

Rogers re: VT PSB Affidavit for Round 4, dated Mar. 17,2009 (ENVYHC01769).

March 18,2009 - Rogers signed an affidavit for his response in VPJRG's Fourth Set of Requests for Information. See Tab 31, Docket No. 7440, Affidavit ofJim Rogers, dated March 18, 2009 (ENVYHC00987).

Johnson - Affidavits generally were performed after submittal ofdiscovery responses, usually within a few days; does not know why this one was so late; no recall of problems or issues with the Rogers affidavit.

Rogers - No clear recall ofwhen he read the final discovery response, recalled that he would not have signed an affidavit without reading the response; thinks he misunderstood the question as "radwaste" rather than "radionuclide." Did not think ofradwaste dilution line, which was abandoned in place. No current recall ofhaving that interpretation in early 2009.

April 2009 - DRM and ENVY personnel prepared ENVY's Fourth Supplementation of Discovery. No update to VPIRG:ENA-6 was included.

January 23, 2010 - Metell brought to the Investigator at his interview a document that he said he had typed that morning, and explained that it reflects his current view ofhow subpart a. of VPIRG:ENA-6 should have been answered:

At VY there are 3 types of underground piping systems. The first type is underground pipe that is inside buildings and is regularly monitored by.

operator rounds and air sampling equipment. The second type is piping that is trenched. This piping is set apart from the environmental elements and for some trenches there are drains to funnel potential leakage to Radwaste. The third type is buried pipe that is covered with soil. Out of the buried type, there are gaseous piping (including water drains and associated with ventilation offgas), and water piping. The gaseous piping is directed to the stack and has not significant pressure to drive elements into the ground, and is being legally released to the air. The buried water piping can be broken up into two groups, e.g., radioactive and non radioactive. Out ofthese two groups, the Chern Lab Iine and the River Dilution line are the only 2 lines that carried radioactive liquid.

See Tab 33, Draft Corrected Response to QVPIRG: ENA-6, M. Metell, dated Jan. 27, 2009 (ENVYHC00988).

64

AITORNEY-CLlENT PRIVILEGE AITORNEYWORKPRODUCT

3.

Analysis & Conclusion The investigation did not substantiate that ENVY intended to mislead the parties to Docket No. 7440 by responding to VPIRG discovery request 4~6 that there have not been any underground piping systems carrying radionuclides during ENVY's ownership ofthe VY Station. The process followed by ENVY in responding to 4~, however, failed to ensure that the underlying assumptions upon which the response was based were understood by all parties in Docket No. 7440.

The January 2009 Fourth Round requests from VPIRG, and VPIRG Third Round Requests to DPS and NSA, focused on the NSA Report. The ten questions to ENVY questions sought additional information regarding specific statements in the NSA Report. ENVY and DRM conducted a "limited triage" for this round ofVPIRG requests. The participants were more limited in number and included individuals with direct knowledge ofthe discovery provided to NSA during their audit. This "limited triage" was less formal than the process used to respond to earlier requests.

The individuals involved in the limited triage included: Metell, the ENVY technical lead; Guglielmino, the ENVY Project Manager for the NSA audit; Marshall, the leader at DRM for this round of responses; and, McElwee, the ENVY State Liaison Engineer. Limberger, a contract engineer hired to assist in responding to discovery, also may have participated. (Bykov, who also usually participated in discovery triage calls was not available. She received an email debrief after the call from MeteU.)

When he first received the VPIRG Fourth Round discovery requests, Marshall discussed with VPIRG counsel that some ofthe requests called for ENVY to speculate about NSA's conclusions. Metel) agreed with that view. In addition, Metell considered the scope ofthe questions as limited to the context ofthe NSA audit. Each ofthe ten questions in the Fourth Round requests cited to a specific page ofthe NSA Report. Although this narrow view was contrary to VPIRG's instructions, none ofthe participants in the triage call recalled discussion of the appropriate scope ofthe Fourth Round requests. McElwee reported having the same understanding ofthe scope, and direction from management to resist inappropriate expansions of the scope ofeither the PSB proceeding or NSA audit. Accordingly, ENVY personnel presumed the questions were bounded by the scope of that audit, and DRM attorneys were unaware ofthe presumed limitation. The DPS response to the same question, received between the triage call and the tinal response, reflects a similar understanding ofthe bounds ofthese discovery requests.

It does not appear that Metell shared with Marshall or anyone on that call that he was applying this limiting interpretation to VPIRG 4.6. Nor does it appear that Metell shared any concern that the question was potentially problematic if interpreted more broadly. Although MeteH told the Investigator that he thought that the question was potentially problematic, it appears that in the triage call, MeteIl identified the line that was potentially most problematic for the proceeding the Chern Lab Drain Line that had leaked in the past and would likely raise questions related to decommissioning cost estimates in the PSB proceeding.12 Consistent with this scope Metell believed. however, that VPIRG already knew about the Chern Lab Drain Line leak.

65 12

AITORNEY-CUENTPRIVILEGE AITORNEY WORK PRODUCT interpretation, it does not appear that Metell intentionally failed to disclose other lines about which he was aware.

Metell expressed an internally consistent view that the gaseous AOG piping was outside the scope ofthe audit because its contents were gaseous. This view was shared by other witnesses, including McElwee. Metell also indicated that he had not previously been aware of AOG condensate drain lines. Thus, in the end, although MeteJl may have thought the question was potentially problematic in terms ofraising an issue in the proceeding, it appears he disclosed the item about which he was concerned and set GugJielmino in the direction offinding the detailed information on that leak.

Marshall and Johnson indicated that they did not, at least initially. view the VPIRG Fourth Round responses as limited to the scope ofthe NSA audit, but did not recall this issue ever being discussed. Both said they were unaware ofany other underground piping carrying radionuclides on the VY site and that they were unaware that any scope limitation was being applied to the information they were receiving from the plant.

After the triage call, Guglielmino proposed al) initial response consistent with the direction he received at the triage and the information he says was known to him at that time. GugJielmino's search for the answer was limited to the direction he received to speak with Rogers. He also spoke with Drouin but did not conduct records searches or other research for past leaks. He did not send the first part ofthe question (about underground piping) to the ENVY personnel responsible for the Buried Piping and Tank Inspection Program, Mark LeFrancois and Gary Bailey. GugJielmino's limited investigation instead focused solely on the nature and extent of the Chern Lab Drain Line leak. The investigation found no evidence that Guglielmino possessed or found additional information that was not provided.

Bykov has not yet been interviewed. The investigation found no basis to conclude that Bykov possessed independent knowledge ofunderground piping that carried radionuclides at the VY site. Marshall and Johnson understood her edits to question a. as clarification to distinguish between the periods ofownership between ENVY and VYNPC. Marshall recalled Bykov's concern to make clear that ENVY's responses were limited to information within the Company's possession, custody or control, and to communicate that the Company was not going outside for information such as to VYNPC, not as a time scope limitation on information that the company would provide.

During the review process, several ENVY senior managers were copied on DRM's request for review including Thayer, Colomb, Dreyfuss, Rademacher, Rogers, Metell and McElwee. It appears neither Thayer nor Colomb commented on this set of responses. Neither recalls doing so. Nor does it appear that their sign-offwas necessary to the established process for filing discovery responses.

Dreyfuss was identified as the Person Responsible for three ofthe responses and asked for review ofthe set. According to McElwee's email, Dreyfuss was reviewing the responses on Friday evening. Dreyfuss said he would have looked at and approved all questions for which he 66

ATTORNEY-CLIENT PRlVILEGE ATTORNEY WORK PRODUCT was identified as responsible, and may have read the others. He did not recall reading or approving the VPTRG Fourth Round responses.

Rademacher was included in the management review distribution. Rademacher did email his approval ofthe response package. Although Rademacher acknowledges he had already noticed the statement on page 262 ofthe report as not technically correct, he does not recall focusing on that issue in the response to this request. He did not recall reviewing the VPIRG Fourth Round requests when the came in. He did recall turning over his responsibilities to Rogers for some period during development ofthese responses, but does not recall getting any turnover from Rogers on the responses. He does not know why he did not flag the issue or question the response.

The available evidence suggests Guglielmino or Umberger spoke with Rogers somewhat early in the process and that Guglielmino used that information to base the initial input to VPIRG:ENA

6. There is no evidence that Rogers saw the revised response before it was issued on January 27, 2009. Rogers does not recall reading the response, but concludes that when he did, it is likely he read "radionuclides" as "radwaste." The investigation did not find evidence that Rogers had any reason or motive to misinterpret the question or narrow the response.

Metell and McElwee's approvals were consistent with their professed understandings at the time ofthe triage - that the question, and therefore the response, was limited to the scope ofthe NSA audit. Nonetheless, the one known pipe leak with significant implications for decommissioning costs was disclosed.

In March 2009, when Johnson raised a question to Marshall about pipes identified in a 1999 study, Marshall promptly, albeit imperfectly, relayed the question to Metell for clarification.

Marshall inadvertently attached two copies ofthe VPIRG response 4-6, but not the document to which Johnson referred. Accordingly, MeteH's response failed to address the three issues Johnson specified. Metell did address the points and questions in Marshall's email. Metell's response appears to be the first communication to the lawyers that he, MeteH, had applied a scope interpretation to the response to VPIRG:ENA-6.

Marshall told the Investigator that he did not previously recall this limitation, but sees that it was communicated to him and acknowledges he understood a scope limitation was being applied.

Marshall forwarded the response to Johnson indicating that "[t]his should answer your question."

Johnson told the Investigator that he accepted Marshall's judgment that MeteWs technical answer resolved the issue. Metell also copied Bykov on his response. The Investigator has not spoken ~ith Bykov. Neither Marshall, nor Johnson recalls discussing this issue with her.

Johnson's question raised the possibility o~ an oblifation to supplement the response to VPIRG:ENA-6 with newly acquired information. t However, Metell's technical response VRCP Rule 26 (b)(1), as then in effect, provided that "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action..."

VRCP Rule 26(e) required:

67 13

AITORNEY-CUENTPRIVILEGE AITORNEY WORK PRODUCT provided a rationale why the response, as written, could be understood as complete. This scope limitation also was consistent with the approach taken in the DPS responses to the same question. DRM supplemented other discovery responses, including another in the VPIRG Fourth Round. The investigation did not find evidence that counsel knowingly ignored a duty to supplement. Rather, they understood the answer complete as given, albeit within a narrower scope than they originally understood the question.

The evidence demonstrates that the process at ENVY used to respond to this question was not rigorous or effective, that certain ENVY personnel failed to provide thorough and clear information to make assumptions in the response explicit and clearly understood, and that the attorneys after the fact did not thoroughly explore information presented to them regarding the existence ofunderground piping. The evidence did not substantiate that ENVY personnel or DRM attorneys responding to this request intentionally tried to hide the existence ofburied piping carrying radionuclides at VY.

F.

Issue No.6: Did ENVY intentionaUy fail to address the statement at page 15 ofMarch 17,2009 Public Oversight Panel Report, which stated: "The Panel was informed that there were no systems with underground piping that carry radioactivity at VY"?

Page 18 ofthe POP Report contains the following statement: "The Panel was informed that there were no systems with underground piping that carry radioactivity at vy.,,14 See Tab 1, POP Report at 18, dated March 17,2009 (ENVYHCOI018). ENVY never addressed the statement. The issue is whether ENVY's failure to do so was intentional.

A party who has responded to a request for discovery with a response that was complete when made is under a duty to supplement or correct the response to include information thereafter acquired with respect to the following matters ifthe party learns that the response is in some material respect incomplete or incorrect and if the additional information has not otherwise been made known to the other parties during the discovery process or in writing:

(2) Any other prior response to an interrogatory. request for production, or request for admission.

The 2009 amendments to VRCP 26 regarding electronically-stored infol1nation and other issues did not alter these provisions.

A footnote at the end ofthe sentence stated: "There is a buried chemistry laboratory drain pipe that once carried radioactive material. In the early 1990's, this drain was discovered to be leaking. After review, the NRC approved its being abandoned in place. The current chemistry laboratol)' drain is not buried. VY's decommissioning plan accounts for the disposal of contaminated soil from this leakage." See Tab J, POP Report at 18, dated March 17,2009 (ENVYHCOIOt8).

68 14

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT

2.

Clrronologv June 6,2008 - Act 189 created the POP and charged it with overseeing and guiding the DPS and its consultants in performing the CRA, and providing transparency, public oversight and public involvement in the assessment. See Tab 1, POP Report at i, dated March 17,2009 (ENVYHC00999).

Members ofthe POP individually and collectively possessed significant qualifications and experience in the nuclear power industry. See Tab 1, POP Report Appendix B, dated March 17, 2009 (ENVYHC01049-52).

The POP acknowledged that neither NSA, nor Act 189, defined the term "reliability."

Accordingly the POP assessed reliability in "commonly understood terms" and made reference to use of"nuclear power industry norms." See Tab], POP Report at 4, dated March 17, 2009 (ENVYHCO 1007).

The Panel benefited from support from DPS personnel throughout their 2008 meetings. DUring the course ofthe CRA, the POP met approximately monthly for two days at a time from July through the end of2008, and every two weeks in 2009 through issuance the POP Report.

Additionally, from September through November 2008 the panel conducted weekly conference calls with DPS representatives, and sometimes NSA, to review the progress ofthe audit. The Panel received presentations from ENVY, NSA, and the NRC. See Tab 1, POP Report at 12, dated March 17,2009 (ENVYHCOI0IS).

The Panel... had access to all records and documents consulted and generated in developing and conducting the reliability assessment and...

in any other audit ofthe Vermont Yankee Nuclear facility pertinent to the reliability assessment.

See Tab I, POP Report at 12, dated March 17,2009 (ENVYHCO] 015~16).

Two Panel Members, Mr. Gundersen and Mr. Sherman, elected to receive data disks ofthis information provided by [ENJVY. These disks represented all ofthe information provided to NSA through its data requests during the audit for its December 22 2008 report.

See Tab 1, POP Report at t3 n.26, dated March 17, 2009 (ENVYHCO 10 16) (emphasis added).

The Panel played a significant role in defining the scope ofthe audit and the scope ofwork to be performed by NSA. The POP indicated:

The General Assembly designated the scope for the Reliability Assessment in Section 3 ofAct] 89. This section identifies seven whole plant systems for comprehensive, in-depth assessment...

See Tab 1, POP Report at 14, dated March 17,2009 (ENVYHCOI017) (emphasis added).

69

ATTORNEY-CLIENTPRIVILEGE ATTORNEY WORK PRODUCT The Legislature delegated authority to POP and DPS to modify the scope ofthe assessment as they deemed necessary. The Panel recommended a number ofscope adjustments, one ofwhich is the focus of Issue No. I, above:

The Panel was informed that there were no systems with underground piping that carry radioactivity at VY. Therefore the Panel recommended that the review ofthe service water system, Act 189 §3(6)("a cooling system dependent upon Connecticut River water"), which has buried non radioactive piping, specifically include a review ofENVY's Buried Pipe and Tank Inspection Program.

See Tab I, POP Report at 15( emphasis added) (ENVYHCO 1018) (This passage also referenced the chemistry laboratory drain pipe in n.27 set out above.)

October 1, 2008 - Bykov's notes ofa Status Conference indicated: "DPS POP report -7 not Dep't evidence in this proceeding" and "DPS will not present the report as evid." See Tab 3, K.

Bykov Notes from Status Conference, dated October 1,2008 (ENVYHC01798).

OctobeJ" 28, 2008 - The POP wrote to DPS Commissioner O'Brien providing a table ofwhat they understood to have been agreed upon among the POP, DPS and NSA. See Tab 1, POP Report, March 17, 2009, Appendix C (ENVYHCO 1053-57). Note 3 in the table attached to that letter provides: "The panel is informed that there are no underground piping systems carrying radioactivity at Vermont Yankee." See Tab 1, Table attached to Letter from W. Sherman to D.

O'Brien, dated Oct. 28, 2008 (ENVYHCOI056).

December 22, 2008 - NSA issued its report ofthe CRA, which included the statement at page 262, "there are no underground*piping systems carrying radionuclides at ENVY." See Issue No.

4, Tab lA, Reliability Assessment of the Vermont Yankee Nuclear Facility, dated Dec. 22, 2008 (ENVYHC00522).

February 6, 2009 - DPS submitted the NSA Report in the PSB proceeding through the prefiled testimony of Woyshner. See State ofVerrnont Public Service Board Docket No. 7440: Direct Testimony of William S. Woyshner and Bruce A. Allhouse on BehalfofVermont Department of Public Service, February 6, 2009, available at http://psb.vermont.gov/docketsandprojectslelectricl7440/prefiled.

February 11,2009 - ENVY submitted its Response to the NSA Report, with Errata, in the PSB proceeding through the prefiled testimony ofColomb. See Issue No.4, Tab 8, Email from W.

Glew to K. Silman re: FW: VT Docket No. 7440 - Final Version Exhibit EN-MJC-2, Response to NSA Report (attaching Appendix C to Exhibit EN-MJC-2, Appendix A to Exhibit EN-MJC-2, Appendix B to Exhibit EN-MJC-2, EN Relicensing Response NSA Master), dated Jan. 2], 2009 (ENVYHC00552-618).

March 17,2009 - Nearly three months following issuance ofthe NSA Report, the POP issued to the Vermont General Assembly, its "Report ofthe Public Oversight Panel on the Comprehensive 70

AITORNEY-CLIENTPRIVILEGE AITORNEY WORK PRODUCT Reliability Assessment ofthe Vermont Yankee Nuclear Power Plant" (POP Report). See Tab 1, supra.

March 18, 2009 - Bykov wrote an e-mail to Thayer, McElwee, Metell, and Marshall, with copies to Glew and Miller, addressing her comments on planned testimony for Colomb.

The key open item for Jay and team is whether we want to respond at all to the Public Oversight Panel's report in this round of testimony. We do not need to respond in this round because Sara Hofmann has clarified that the DPS will not offer the Panel's report as evidence in this docket. And if one ofthe intervenors picks up on a recommendation made by the Panel, and advocates that we make such a recommendation a condition of continuing operation, we'd have a chance to respond to the intervenors accordingly. But ifwe think it would strengthen our stance from a strategic standpoint to respond to the Panel's report now, we could put it in Mike Colomb's rebuttal testimony.

See Tab 2B, Email fromK.BykovtoJ.Thayer.D.McElwee.H.Metell.J.Marshalleta1.re: RE:

Comments to Colomb Testimony, dated March J8,2009 (ENVYHCOI061).

March 18,2009 - Thayer responded to all within 20 minutes:

I recommend NOT addressing the POP report in this round. The Board has the NSA report and we are responding to that. The POP report is an action requested by the Legislature and I assume they will tell the Board what they want done with it. Either way, the POP report covers the same ground as the NSA report and we (Mike C) are responding to that.

See Tab 2A, Email from J. Thayer to K. Bykov, D. McElwee, H. Metell, 1. Marshall re:

Comments to Colomb Testimony, dated March 18, 2009, dated March 18,2009 (ENVYHCOI061) (Capitalization in original).

March 18, 2009 - Bykov responded to Thayer: "Jay-thanks very much. We will not address the Panel's report, and can discuss again ifit gets raised by an intervenor." See Tab 2, Email from K. Bykov to J. Thayer re: RE: Comments to Colomb Testimony, dated March 18, 2009 (ENVYHCOI061).

Colomb - Does not recall reviewing the POP Report.

Dreyfuss - Does not recall noticing the statement in the POP Report; was focused on whether there were new recommendations.

Guglielmino... Did not read the POP Report in detail. He does not recall any discussion on underground piping and had no action items related to the POP Report.

71

r t

AITORNEY*CLIENTPRIVILEGE AITORNEY WORK PRODUCT Mannai - Looked at POP Report; just the executive summary; does not think it was requested by NRC.

McElwee - Does not recall any discussion about the statement on page 15; does not recall any fact-check ofthe POP Report as was done with the NSA Report.

Metell - Thought he may have reviewed the POP Report for additional obligations. Did not consider the possibility ofnot satisfYing the legislative mandate of3(a)(7). Does not recall this issue coming up in connection with review ofthe POP Report.

Rademacher - Probably read the executive summary. He was on to other things. He did not know it contained the same language as the NSA Report.

Rogers - Believes he read the POP Report; does not recall noticing the statement.

Thayer-Thayer recalls reading the POP Report, but not this issue. He recaHs the discussion ofthe buried piping program because of his familiarity with the issue while a loaned executive at the Nuclear Energy Institute. Thayer recalled thinking about liquid transfer pipes that could leak tritimn. He remembered the chemistry drain line because it made sense to point out that abandoned line as the only line with liquid radwaste buried in soil. He recalled thinking that all other liquid piping was in tunnels. Thayer said he was not aware that there were other non-trenched systems. He said he would expect a desigJ) philosophy that would not put radioactive piping in soil. He thinks ofthe AOO system as gaseous. He interpreted the POPINSA scope as liquid piping systems. Thayer recalled NSA members had experience at PECO, which he described as a BWR company. The stated that that is the reason that NSA went initially to CST, because industry history oftritium leaks in CST. But VY's is trenched. Thayer thinks NSA would know this design well. Thayer concluded that he does not remember the specific language on page 15, and said he focused mostly on pages 1 and 2.

Wierzbowski - Did not recall reading the POP Report.

Bykov - Not interviewed. Bykov's contemporaneous notes make no reference to the content ofthe POP Report.

3.

Analvsis & Conclusion ENVY personnel did not conduct a comprehensive review ofthe POP Report. Instead. ENVY focused on the POP's conclusion that, with recommendations, the plant was suitably reliable for continued operation for 20 years.

No one interviewed who read the POP Report stated that he focused on/noted that particular statement. ENVY personnel interviewed stated that the Company was satisfied with the overall conclusion and recommendation and, therefore, saw no reason to conduct a comprehensive review. ENVY already had provided its views on the NSA Report, on which the POP Report was based.

72

AITORNEY-CLIENT PRIVILEGE AITORNEY WORK PRODUCT The Investigation did not find evidence that ENVY personnel intentionally decided not to address the particular statement in the POP Report. Rather, the evidence collected indicates that ENVY management deferred on responding to the POP Report at all. None ofthe evidence the Investigator identified suggested that ENVY personnel believed that NSA or POP misunderstood the status ofburied piping at VY. ENVY personnel were not privy to conversations among DPS, NSA and POP, except anecdotal1y. ENVY personnel appear to have believed that they and NSA had a common understanding ofthe types of piping systems NSA wanted to review to satisfy the requirement of section 3(a)(7) for the audit - whole-plant systems carrying process liquids, buried in dirt. The statement in the POP Report did not contradict that understanding.

G.

Issue No.7: Did Jay Thayer intentionally mislead the Vermont Public Service Board when he testified on May 20, 2009, that he believed that there were no active piping systems underground containing contaminated fluids today at the Vermont Yankee plant?

1.

lw!.G.

On May 20, 2009, Jay Thayer testified before the Vermont Public Service Board:

Q.

Does Vermont Yankee have any underground piping that carries radio nuclides?

A.

The reason I hesitate is I don't believe there is active piping in service today carrying radio nuclides underground. There was a line that was contaminated, radioactive liquid, which did leak back in the period before we purchased the plant, that line was abandoned. That is the reason for some of the contaminated soil on site. But I don't - I can do some research on that and get back to you, but I don't believe there are active piping systems underground containing contaminated fluids today.

Q.

Okay.

MR. MARSHALL: You can ask that question ofMr. Colomb next Tuesday.

See Tab 6, Transcript, Technical Hearing before the Vermont Public Service Board, Docket No.

7440, May 20, 2009 at 70-71 (ENVYHCOl183).

On January 15, 2010, Thayer issued a statement in which he apologized for "failing to provide full and complete information about the presence of underground pipes at Vermont Yankee."

See Tab 9, Statement for Jay Thayer, dated Jan. 15,2010 (ENVYHCOI770). Thayer also stated that he "should have confirmed the accuracy of[hisJ statements, and [he] should have followed up after the PSB hearing, as [heJ said [he] would, to correct the record." See id.

73

ATTORNEY-CLIENT PRiVILEGE ATTORNEY WORK PRODUCT The issue is whether Thayer intentionally misled the PSB, despite what he said in his January 15, 20 I 0 statement "that there never was any attempt to mislead the Department or the Board on the presence ofthe pipes:' See id

2.

Chronology March 3,2008 - ENVY filed Thayer's prefiled testimony in the PSB proceeding, Docket No.

7440. Thayer's prefiled testimony provided an overview ofEntergy's petition, introduced other witnesses, showed that ENVY met the PSB's criteria to determine whether to grant a certificate ofpublic good and summarized the benefits ofthe VY station. The March 2008 prefiled testimony also addressed ENVY's financial commitments with regard to decommissioning and storage ofspent-nuclear fuel. There was no mention ofunderground piping in this prefiled testimony. See Tab 2, Prefited Testimony ofJay Thayer dated March 3, 2008 (ENVYHCOI07J 99).

Marshall-Thayer was ENVY's overall management, big picture witness. Other witnesses were intended to drill down on financial issues, decommissioning and technical issues.

February 11, 2009 - ENVY filed Thayer's supplemental prefiled testimony. The supplemental testimony responded to DPS witnesses' testimony and addressed potential benefits ofa long term contract for power, the value ofthe revenue-sharing clause, decommissioning costs and funding, and long-term storage ofspent-nuclear fuel. There was no mention ofunderground piping in this prefiled testimony. See Tab 4, Summary ofPre filed Testimony ofJay Thayer, dated Feb. II, 2009 (ENVYHCO 1118-48).

March 23,2009 - ENVY filed Thayer's rebuttal prefiled testimony. Thayer's testimony addressed the sale ofVY from VYNPC to ENVY, decommissioning recommendations, spent fuel management and decommissioning costs, financial assurances for decommissioning, and negotiation ofa new Inspection Memorandum OfUnderstanding. It did not refer to underground piping. See Tab SA, Rebuttal Prefiled Testimony ofJay Thayer, dated March 23, 2009 (ENVYHCOI150-64).

March/April 2009 - DRM attorneys Marshall, Johnson and Sheila Grace were responsible for preparing Thayer for his testimony and assembled briefing notebooks for Thayer. Those briefing notebooks contained ENVY's responses to discovery in the proceeding, including the response to VPIRG:EN 4-6. The prep outline prepared by DRM for Thayer's testimony included only one item related to underground piping, which stated: "underground pipinglradionuclides/soil contamination." See Tab 1, Index and Outline to Witness Preparation Materials for Michael J.

Colomb, undated (ENVYHCO 1 064).15 April 28 and May 2009 - Joint prep session for Thayer and Colomb held on April 28 at the DRM office in Brattleboro. Present for this prep session were Dreyfuss, McElwee, Marshall, Johnson, Glew (in-house Entergy attorney) and Bykov (in-house Entergy attorney). According According to Marshall, Tab I was used in the testimony preparation of both Thayer and Colomb.

74 15

ATTORNEY*CLIENT PRIVILEGE ATTORNEY WORK PRODUCT to Marshall, there was an additional joint prep session with the same people on May 14,2009, also at the DRM office in Brattleboro. Finally, on the morning of his testimony on May 20, 2009, Thayer met with Marshall~ Johnson, Bykov, Dreyfuss, McElwee and Mete)) for a short prep session. As to the prep sessions, the individuals present reca)] the following:

Thayer - Prepped for his testimony by reviewing seven, three-inch binders with DRM attorneys. Focus was on decommissioning costs. Knew the intervenors wanted to look at the decommissioning funds, the Chern Lab Drain Line incident, and the quantification of soil that was contaminated at the site. Read ENVY response to VPIRG:EN 4-6 as part of his preparation, but response did not stand out to him given the context ofthe statement that was quoted from page 262 ofthe NSA Report and given that there is trenched piping and piping that carries gas that he knew about. Thayer did not know of underground piping (Le., not trenched) that carried liquids, not gas, at VY.

MarshaIl-Does not recall anyone discussing or challenging the answer in the response to VPIRG:EN 4-6 that was in the prep binders for Thayer and Colomb. There was a discussion ofthe Chern Lab Drain Line. Thayer's second prep session involved mock cross-examination. Did not remember whether the Chern Lab Drain Line response was included in the mock cross. Believed that his hand-written notes from this prep session are his preparation for the mock cross. The notes do not mention underground pipes.

Did not push Thayer in the prep session on the existence ofunderground pipes by stating that there must be other underground pipes because Marshall was not a technical expert and it was not obvious to him that there would be other pipes. There was no discussion the in any prep sessio,? that this was a tricky issue or that they had to be careful about what to say about underground pipes. They did not discuss that there was a context necessary to understand ENVY's response to VPIRG:EN 4-6.

Grace - (Sheila Grace is ofcounsel at DRM.) Did not recall any discussion ofthe ENVY response to VPIRG:EN 4-6 during Thayer's prep sessions. Did not recall anyone in the prep session suggesting that there was any possible problem or inconsistency with the response. Did not have any notes ofthe prep session. Not as familiar with the subject matter and therefore not much on the substance stuck with her. Did not recall any discussion ofunderground piping. Believes she participated by phone. not in person.

Glew - Attended the April 28, 2009 session; notes do not have any references to underground piping. Has recollection ofa discussion about underground piping and the plan was to kick it from Thayer to Colomb to handle, but believes that the discussion occurred after Thayer's testimony. Someone on Colomb's team was supposed to double check and confirm the underground piping. Does not recall any discussion of radionuclides; there was a back and forth about underground piping and there was an action item follow-up.

Colomb - Does not specifically remember any joint prep session with Thayer. Does not remember any questions regarding the broader question ofthe existence ofunderground piping during any prep session.

75

ATTORNEY-CLIENT P RlVILEGE ATTORNEY WORK PRODUCT Dreyfuss - Did not go through the prep materials or briefing books before the prep sessions. Present at the prep sessions to give technical support. The hot issue at Thayer's prep session was decommissioning costs. Buried underground pipe was discussed only in connection with how much contaminated soil was at the site and how much was associated with the Chern Lab Drain Line leak.

McElwee - Does not remember a discussion of underground piping that carried radionuclides at the April joint prep session. Additional cost ofdecommissioning due to contaminated soil was a focus. Does not recall a discussion ofENVY's response to VPIRG:EN 4-6. The only discussion about underground piping at any prep session would have been associated with just the Chem Lab Drain Line leak.

,Metell-Present only on the morning ofThayer's testimony and does not recall any discussion ofunderground piping at that session.

May 5, 2009 - Bykov' notes have "Bill Cloutier/Jay Thayer Prep." Those notes do not have anything about underground piping. They do state:

soil contamination

- ] 000 cubic yds vs. 5000 cubic yards -+ contingency

- '99 site study - ],000 substantiated See Tab 10, Notes from K. Bykov Witness Prep, dated May 5, 2009 (ENVYHCO 1778).

May 20, 2009 - Thayer testified as indicated above.

MarshalI-Uncomfortable with Thayer's long pause before responding to the question about underground piping. Stated that Colomb would answer that question because Colomb was the designated witness for current operations. Not concerned that anything was wrong, only that Colomb should expect a question on it. Conducted follow-up through Garry Young's testimony that touched on Oyster Creek. Marshall expected Colom b to address the Chern Lab Drain Line leak. Thayer did not request a debrief after his testimony and Marshall did not provide any feedback to 111ayer.

Metell - Suspects he had some uneasiness about the testimony due to his knowledge of the scope of piping at VY. He did not say anything to Thayer or the attorneys about his uneasiness. He thought it was a good answer in a potentially tough area. It was good because it referred to pipes carrying liquids today_ After Thayer's testimony, Metell immediately tasked GugJielmino at the VY site to track down information with regard to underground piping. See Issue No.8.

McElwee - Attended Thayer's testimony; Thayer's response to the underground piping question registered to some degree because he knew Colomb would be asked about it.

Dreyfuss - Did not attend Thayer's testimony. Recalled that sometime after the testimony, McElwee called him and they discussed making sure that Colomb could speak 76

ATTORNEY-CLIENT PRiVILEGE ATTORNEY WORK PRODUCT to the issue of the Chern Lab Drain Line leak. He did not recall a broader discussion of underground piping.

May 20, 2009 - Immediately after Thayer's testimony, McElwee identified underground piping and contaminated soil as an issue that Colomb might have to address in his upcoming testimony.

McElwee sent an email to Colomb, Dreyfuss and David Mannai, copied to Jeff Meyer, that stated:

Mike, you may be asked during your testimony up here ifwe have any underground piping carrying contaminated material. We have said no but used to have a chemistry sink drain line that was leaking back in the 80's but has been abandoned once it was identified it was leaking. You may need to discuss during your time on the stand.

Jeff, Jthink chemistry can give you some supporting documents on it to briefMike.

See Issue No.8, Tab 4F, Email from D. McElwee to M. Colomb, J. Dreyfuss, D. Mannai, copied to J. Meyer re: FW: Underground piping, dated May 20,2009 (ENVYHCOI243). For a complete discussion ofwhat occurred, see Issue No.8, below.

McElwee - Email merely stated what he understood the testimony to be. Does not remember whether he wrote it this way so that they would follow up on the "no" to the underground piping question because there was now an issue about the existence ofsuch piping. The correct punctuation for his sentence would be: "We have said: 'No but used to have....'" Sent to Meyer because Meyer worked for Mannai and Mannai was coordinating the gathering of information for the Colomb prep.

Dreyfuss - Does not recall this email or that it raised any question with him. McElwee had talked to him about Thayer's response to the question and stated that they needed to make sure that Colomb could speak to the issue ofthe Chern Lab Drain Line leak. Does not recall a broader discussion of underground piping.

May 20, 2009 - Bill Glew sent an email with a short digest ofthe testimony from the hearing that did not mention this issue at all. See Tab 7, Email fromW.GlewtoJ.Thayeretal.re: VY Continuing Ops CPG hearing - Day 3 report, dated May 20, 2009 (ENVYHCO 1220).

CHew - No recognition at Thayer's testimony that it was a tricky issue or that ENVY had dodged a bullet. No doubts about Thayer's accuracy on this point.

May 20, 2009 - Bykov's notes from Thayer's testimony stated, under the heading "Decommissioning," "[p]iping carrying radionuclides - used to have during VYNPC, doesn't believe there are." See Tab II, Notes from K. Bykov Witness Testimony, dated May 20, 2009 (ENVYHCO 1782). The note has an arrow in the margin. The last entry for this day has a heading "Questions" with six numbered entries. The first is: "1. Underground pipe -" See Tab 1 I, K. Bykov Notes from J. Thayer Testimony, dated May 20, 2009 (ENVYHCOI786).

77

ATTORNEY-CliENT P RlVILEGE ATTORNEY WORK PRODUCT May 21, 2009 - Kim Bykov sent an email regarding "Items for Mike Colomb from Jay's Testimony," which mentioned one related item: "1. Thursday 5121 testimony ofJay Thayer concerning soil contamination - Karen and Brenda, can you email a.pdf ofthe rough version of this transcript to John Dreyfuss and Dave McElwee (who are copied above) tonight, for review with Mike?" See Tab 8C, Email from K. Bykov to J. Dreyfuss, D. McElwee, M. Metell re: Items for Mike Colomb from Jay's Testimony, dated May 21,2009 (ENVYHC01222-23).

3.

Analvsis & Conclusion The evidence does not substantiate that Thayer intended to mislead the PSB or others by testi(ying on May 20, 2009, that he did not believe there were active piping systems containing contaminated fluids.

Thayer testified that he did not "believe there are active piping systems underground containing contaminated fluids today" in response to a question that asked: "Does Vermont Yankee have any underground piping that carries radio nuclides?" That answer is inaccurate with regard to any underground piping that carries radionuclides as addressed previously in Issue No. 1.'6 As demonstrated below, the evidence supports Thayer's statement that he did not intend to mislead the PSB by giving that answer.

Thayer stated that he answered the question in the context ofhis preparation for testifying about decommissioning costs and the costs for removing contaminated soil. Thayer believed that he and ENVY knew that VY was a pretty clean site. When he read the VPIRG response it was consistent with his understanding ofthe site. Thayer stated that he also had been involved with older Yankee plants, and those commonly had pipes moving large amounts of liquids containing radwaste in them. He has seen the effects ofthat, and VY did not have that issue. By the time they built VY, VY had liquid-filled pipes in trenches. Thayer stated that this was his thought process at that time, because he was focused on decontamination. He was focused on events that cause soil contamination, and the Chem Lab Drain Line leak was the only one that led to soil contamination. The VPIRG response was therefore consistent with his understanding ofthe site.

Thayer further stated that he interpreted the question in the context ofwhat he thought the POP/NSA was interested in - pipes carrying liquid as opposed to gases. Thayer stated that he hesitated when he responded to the question because he was going through an inventory in his mind that included the Chem Lab Drain Line and he wanted to be precise. He knew that line had been abandoned. He stated that he was focused on decommissioning and running through the inventory. He knew that this was a very different plant from Connecticut Yankee and others that experienced many more leaks. He felt that the intervenors believed there was something else out there, but all his experience showed him there was not. He gave his answer with modifiers not because he was trying to be cute or trying to dodge or give a narrow response. He was having a conversation on decommissioning liability.

For example, there is piping that carries gaseous radionuclides that have associated condensate drain lines.

78 16

AITORNEY-CLIENTPRIVILEGE ATTORNEY WORK PRODUCT Thayer's thought processes and recollection are supported by the independent evidence. First, the specific statement Thayer made at the hearing supports his explanation. He stated: "I don't believe there are active piping systems underground containing contaminated fluids today."

Thus, his response aligns closely 'With his beliefthat the POPINSA focus was on large systems carrying liquid with the potential to contaminate, instead ofprimarily gaseous systems.

Second, the context ofthe questioning at the hearing supports Thayer's explanation. The question about underground piping was part ofa series ofquestions about decommissioning costs and costs associated with soil removal for contamination at the site. Approximately seven pages before this response in the testimony transcript, the questioning attorney stated: "J would like to switch to some decommissioning questions now." The questioning from that point and past the excerpt noted above is focused on decommissioning cost estimates.

Third, Thayer's supplemental 2009 prefiled testimony also supports Thayer's focus on decommission costs:

Q8.

Dr. Jacobs also asks Entergy VY to survey the VY Station site to determine the amount ofcontaminated soil at the site and to include in decommissioning~cost studies the estimated cost to remove contaminated soil.

A8.

When Entergy Corporation was considering whether to purchase the VY Station, the company evaluated the need during decommissioning for remediation ofsoil. Entergy VY determined that 135,000 cubic feet of radiologicalIy~contaminated soil exists, and the decommissioning~cost study prepared by TLG Services includes $9.1 million as the estimated cost to remediate this amount ofsoil.

Since Entergy VY acquired the VY Station in 2002, no events have occurred that have resulted in additional radiological soil contamination.

In addition, Entergy VY (and the nuclear industry) has initiated a groundwater-monitoring program, which involves installation ofadditional monitoring wells and sampling analyses.

The company therefore believes that its decommissioning-cost study meets Dr. Jacobs' recommendation and that no other investigation is necessary or warranted at this time.

See Tab 4, Summary ofPre filed Testimony of Jay Thayer, dated Feb. 11,2009 at 6-7 (ENVYHCOl124-25).

Fourth, all who attended the prep sessions confirm that there was no discussion about underground piping and instead the focus was on decommissioning costs and the costs associated with removing contaminated soil. For example, the DRM attomeys who prepared Thayer confirmed that the prep sessions were focused on soil contamination. To the extent that "underground piping/radionuclides/soil contamination" was discussed it was discussed in the 79

I.

t, ATTORNEY~CLIENTPRIVILEGE ATTORNEY WORK PRODUCT context ofhow much contaminated soil existed at the site and therefore how much it would cost to remove it upon decommissioning.

Fifth, the two Entergy attorneys present at his testimony sent emails after his testimony that did not mention any issue regarding underground piping, suggesting that there was no particular focus on that issue or intentional effort to mislead anyone. See Tab 7, Email from W. Glew to J.

Thayer et al. re: VY Continuing Ops CPG hearing - Day 3 report, dated May 20, 2009 (ENVYHC01220); Tab 8C, Email from K. Bykov to J. Dreyfuss, D. McElwee, M. Metell re:

Items for Mike Colomb from Jay's Testimony, dated May 21,2009 (ENVYHC01222-01223).

To the extent that certain Entergy personnel identified a potential issue regarding Thayer's testimony and the existence ofunderground piping systems that carry radionuclides, they did not alert Thayer to this issue. See infra Issue No.8.

H.

Issue No.8: Did Mike Colomb intentionally mislead the Public Service Board on May 26, 2009, when he limited his testimony to the Chemistry Laboratory Drain Line leak in response to a question about the existence of underground piping systems that carried radionuclides at ENVY?

I.

Issue On May 26, 2009, Mike Colomb testified in the proceeding before the Vermont Public Service Board, Docket No. 7440, as follows:

Q.

...You had one question referred to you from Mr. Thayer the other day and I know you weren't here. The discussion was about underground piping and possible contamination. He thought you would know the answer, so do you know ifthere's any underground piping at Vermont Yankee carrying radionuclides?

A.

I believe we had identified one pipe that was underneath the chemistry laboratory that end - I believe leaked in the past, did contaminate some soil under the building, has since been sealed, and a new line that is not underground was routed.

Q.

And there was discussion about where that line is. Can you clear that up?

A.

It is under, yes, I said underneath the chemistry laboratory building and goes to a different building. It's all underneath the structure.

Q.

Okay. What building does it go to because we had a pipe starting and ending?

A.

J believe it was the radioactive waste building.

80

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT Q.

Okay. And can you go back to your 1(0 BOARD MEMBER BURKE: Do you know the depth ofthat pipe?

MR. COLOMB: I do not know the depth ofthat pipe.

BOARD MEMBER BURKE: Could it be more than three feet?

MR. COLOMB: Jt could be more than three feet.

See Tab 21, Transcript, Technical Hearing before the Vermont Public Service Board at 63-65 (May 26, 2009) (ENVYO 1392-93). The issue is whether Colomb intended to mislead the Public Service Board ("PSB") or others by responding to the general question about the existence of underground piping at Vermont Yankee carrying radionuclides with a specific response that referred solely to the Chem Lab Drain Line. In addition, the investigators broadened this issue to include whether other ENVY personnel or representatives withheld information from Colomb about underground piping carrying radionucljdes to intentionally mislead the PSB or others.

2.

Chronology February 11,2009 - ENVY filed Colomb's prefiled testimony in the Public Service Board proceeding, Docket No. 7440. Colomb's testimony responded to the December 22,2008 report by NSA on the Comprehensive Vertical Audit and Reliability Assessment required by Act 189.

The testimony is three pages long and attaches a copy ofthe Entergy Response to the December 22,2008 NSA Report. See Tab 1, Colomb Prefiled Testimony, dated Feb. 11,2009 (ENVYHCO 1224-34).

Marcb 23,2009 - ENVY filed Colomb's rebuttal prefiled testimony in the proceeding.

Colomb's rebuttal addressed ENVY's plans to follow-up on the NSA Report's recommendations. The testimony does not refer to underground piping. See Tab 2, Colomb Rebuttal Prefiled Testimony, dated March 23, 2009 (ENVYHCOI235-40).

Spring 2009 - DRM attorneys Marshall, Johnson and Grace were responsible for preparing Colomb for his testimony. In April 2009, they assembled briefing notebooks for Colomb. Those briefing notebooks contained ENVY's response to VPIRG:EN 4-6, but do not contain any other items directly related to underground piping that carries radionuclides. The response to VPIRG:EN 4-6 does not identify underground pipes other than the Chem Lab Drain Line. See Issue 5, Tab 14, ENVY Response to VPIRG:EN 4-6 (ENVYHC00959).

Spring 2009 - The prep outline prepared by DRM for Colomb's testimony included only one item related to underground piping, which stated: "Underground piping/radionuclides/soil contamination." See Issue 7, Tab 1, Index to Witness Preparation Materials for Michael Jay Colomb, undated (ENVYHCO] 064).

81

ATTORNEY-CliENTPRIVILEGE ATTORNEY WORK PRODUCT April 28 and May, 2009 - Joint prep session for Thayer and Colomb held on April 28 at the DRM office in Brattleboro. Present for this prep session were Dreyfuss, McElwee. Marshall, Johnson, Glew (in-house Entergy attorney) and Bykov (in-house Entergy attorney). According to Marshall, there was an additional joint prep session with the same people on May 14 or 15, 2009, also at the DRM office in Brattleboro. Colomb stated that he reviewed two or three volumes of briefing books and two CDs.

Marshal1-Recalls going over response to VPIRG:EN 4-6 during prep session. Does not recall anyone discussing, challenging or stating that there was a context for the response to VPJRG:EN 4-6 that was in the prep binders for Thayer and Colomb. There was a discussion ofthe Chern Lab Drain Line. There was no discussion that this was a tricky issue or that they had to be careful about what to say about underground pipes.

Colomb's second prep session was basically mock cross-examination. Does not remember whether the Chem Lab Drain Line response was included in the mock cross.

Believes his hand-written notes from this prep session are his preparation for the mock cross. The notes do not mention underground pipes. Did not push Colomb in the prep session by stating that there must be other underground pipes because Marshall was not a technical expert and not obvious to him that there would be other pipes.

Glew - Attended the April 28, 2009 session; his notes do not reference underground piping. Has recollection ofa discussion about underground piping and the plan was to kick it from Thayer to Colomb to handle, but believes that the discussion occurred after Thayer's testimony. Someone on Colomb's team was supposed to double check and confirm the underground piping. Does not recall any discussion of radionuclides; there was a back and forth about underground piping and there was an action item follow-up.

McElwee - Does not remember a discussion ofunderground piping that carried radionuclides at the April joint prep session. Additional cost of decommissioning due to contaminated soil was a focus. Does not recall a discussion ofENVY's response to VPIRG:EN 4-6. The only discussion about underground piping at any prep session would have been associated with just the Chern Lab Drain Line leak.

Dreyfuss - Did not go through the prep materials or briefing books before the prep sessions. Present at the prep sessions to give technical support. The hot issue at Thayer's prep session was decommissioning costs. Buried underground pipe was discussed only in connection with how much contaminated soil was at the site and how much was associated with the Chern Lab Drain Line leak.

Thayer - Focus was on decommissioning costs. Knew the interveners wanted to look at the decommissioning funds, the Chern Lab Drain Line incident, and the quantification of soil that was contaminated at the site.

Colomb - Does not specifically recall his sessions; most of his prep sessions were on witness training as opposed to substance.

82

AITORNEY-CLIENTPRIVILEGE AITORNEY WORK PRODUCT May 20, 2009 - Thayer testified before the Vermont PSB and was asked "Does Vennont Yankee have any underground piping that carries radio nuclides?" See Issue 7, Tab 6, Transcript, Technical Hearing before the Vermont Public Service Board, Docket No. 7440, May 20,2009 at 70-71 (ENVYHCOlI83). Thayer responded that he did not "believe there are active piping systems underground containing contaminated fluids today." See Issue 7, Tab 6, Transcript, Technical Hearing before the Vermont Public Service Board, Docket No. 7440, May 20,2009 at 70-7] (ENVYHCO 1183).

Marshall-Uncomfortable with the long pause; stated that Colomb would answer that question because Colomb was the designated witness for current operations. Not concerned that anything was wrong, only that Colomb should exp,ect a question on it.

Follow-up through Garry Young's testimony that touched on Oyster Creek. Marshall expected Colomb to address the Chern Lab Drain Line leak.

May 20, 2009 - The third page ofBykov's contemporaneous notes ofthe hearing reflect a question about piping carrying radionuclides in the context ofa line ofquestioning regarding decommissioning:

-7 Piping carrying radionuclides - used to have during VYNPC, doesn't believe there are The seventh page ofthe notes reflecting the end ofthe hearing end as follows:

Pipe is underneath a driveway between the building wall & out to a sump Questions

1. Underground pipe

2. Financial assurance - produce Enexus NRC order

3. VYNPC - John to ask Nancy

4. Outline of fuel assemblies in dry & wet storage at each RFO

5. Spent fuel mgmt plan. error

6. Enexus will carry CPG commitments See Issue 7, Tab 11, K. Bykov notes from J. Thayer Testimony, dated May 20,2009 (ENVYHCO] 782, 01786).

May 20, 2009 -Glew sent an email wit,h a short digest ofthe testimony from the hearing that did not mention underground piping issue at all. See Tab 3, Email from W. GJew to 1. Thayer, K.

Bykov, D. McElwee, M. Metell, M. Colomb et al. re: VY Continuing Ops CPG hearing - Day 3 report, dated May 20,2009 (ENVYHC01241).

G lew - No recognition at Thayer's testimony that it was a tricky issue or that ENVY had dodged a bullet. No doubts about Thayer's accuracy on this point.

83

ATIORNEY-CLJENT PRIVILEGE ATIORNEY WORK PRODUCT May 20, 2009 as a result of Thayer's testimony, different ENVY personnel began gathering information related to underground piping that carries radionuclides. This chronology follows each separate line ofinquiry that began with Thayer's testimony. The main threads started with Dave McElwee, Mike MeteU and Kim Bykov, all ofwhom were present during the testimony.

a.

McElwee's request for iuformation May 20, 2009 - immediately after Thayer's testimony, McElwee identified underground piping and contaminated soil as an issue that Colomb might have to address in his upcoming testimony.

McElwee sent an email to Colomb, Dreyfuss and David Mannai, copied to JeffMeyer, that stated:

Mike, you may be asked during your testimony up here if we have any underground piping carrying contaminated material. We have said no but used to have a chemistry sink drain line that was leaking back in the 80's but has been abandoned once it was identified it was leaking. You may need to discuss during your time on the stand.

Jeff, J think chemistry can give you some supporting documents on it to briefMike.

See Tab 4F, Email from D. McElwee to M. Colomb, J. Dreyfuss, D. Mannai re: FW:

underground piping. dated May 20, 2009 (ENVYHCO) 243).

McElwee - Email merely stated what he understood the testimony to be; he does not remember whether he wrote it this way so that they would follow up on the "no" to the underground piping question because there was now an issue about the existence ofsuch piping. The correct punctuation for his sentence would be: "We have said: 'No, but used to have....'" Sent to Meyer because Meyer worked for Mannai and Mannai was coordinating gathering information for the Colomb prep.

Dreyfuss - Asked Mannai to be point person on collecting this technical information.

Did not tell Mannai that there was an issue about underground piping. Does not recall this email or that it raised any question with him. McElwee had talked to him about Thayer's response to the question and stated that they needed to make sure that Colomb could speak to the issue ofthe Chern Lab Drain Line leak. Does not recall a broader discussion of other underground piping.

Colomb - Does not recall this email; only recalls issue with Chem Lab Drain Line.

May 20, 2009 - Meyer assigned Chemistry Superintendent JeffHardy to collect this information. See Tab 4E, Email from J. Meyer to J. Hardy re: FW: underground piping, dated May 20,2009 (ENVYHC01243).

Meyer - Was not involved in witness prep and McElwee contacted him because he is frequently McElwee's point ofcontact when McElwee is gone.

84

AITORNEY-CLIENTPRIVILEGE AITORNEY WORK PRODUCT Hardy - RecaHed being pulled in to help with Colomb testimony by Mannai because he had. put together a summary of the Chern Lab Drain Line leak incident in 1992.

May 20, 2009 - Hardy asked Skibniowsky and Bailey to send the information to Meyer. See Tab 4D, Email fromJ.HardytoS.Skibniowsky.G.Bailey re: FW: underground piping, dated May 20,2009 (ENVYHC01243).

Hardy-Was asked to collect information related to the Chern Lab Drain Line leak, which he had worked on when it occurred. Does not know ofany direction to ignore anything; only direction to make them smart on the Chern Lab Drain Line leak.

i.

Bailey's response May 20, 2009 - Bailey responded to Meyer (cc'ing Hardy, Skibniowsky) by attaching a spreadsheet that contains a list ofpiping from the Buried Piping and Tanks Inspection Program database. Bailey stated: "J've included piping sections that are potentially contaminated. Most ofthe piping is associated with the Offgas System that carries gaseous effluents." See Tab 4C, Email fromG.Bailey to J. Meyer re: underground piping, dated May 20,2009 (emphasis in original) (ENVYHCO 1242).

fJailey-Went to his BPTIP table and created a chart with all the pipes that had an "H" in the risk column ("high"). Did not have the technical background to state that they were definitely contaminated so he called them potentially contaminated. Did not pay attention to the testimony. Did not recall speaking with Meyer. Does not read all emails in a string. Said majority ofpipes was associated with the AOG system because that is true - he was just trying to give them a feel for the piping. Never was told to say this or given any instruction on how to answer.

May 20, 2009 - Meyer responded to Bailey and specifically raised the relationship between this information and Thayer's testimony - ur am not sure how this corresponds to previous testimony that Dave mentioned, that said there was none. Anyway, Mike Colomb will need some briefing material so he can speak at hearing in Montpelier next week on the subject. Thus, some summary information for Mike is what is needed." See Tab 4B, Email from J. Meyer to G.

Bailey, re: FW: underground piping, dated May 20, 2009 (ENVYHC01242).

Meyer - Does not recall anything related to his email in which he identifies the problem.

Did not have any discussions about it with anyone else. He was just forwarding information. He was not saying that there was an inconsistency; he just did not know.

Bailey - Does not recall talking to Meyer after this email or noting any real issue.

Recalls someone asked him about the Chern Lab Drain Line leak.

Skibniowsky - Collected requested information about the Chem Lab Drain Line leak and did not discuss the issue identified by Meyer.

85

A1TORNEY~CLIENTPRIVILEGE A1TORNEY WORK PRODUCT McElwee - Does not remember identifYing this as a big issue after reading Meyer's response and, although he forwarded it to Dreyfuss, he does not know ifhe discussed it with Dreyfuss. Jt certainly did not rise to the level that he thought an Entergy executive just gave false testimony. No one told him not to discuss this with Thayer or Colomb.

McElwee did not look at the table that Bailey had prepared and did not show the table to Metel!. McElwee assumed that people at VY were taking care ofthe issue.

May 20, 2009 - McElwee responded to Meyer's email: "Mike testifY on Tuesday morning so with Monday a holiday and Friday off, he needs soon!" See Tab 4A, Email from D. McElwee to J. Meyer, G. Bailey re: RE: underground piping, dated May 20,2009 (3:39 PM)

(ENVYHCOJ 242).

May 20, 2009 - McElwee forwarded the Bailey table and email string to John Dreyfuss. See Tab 5, Email from D. McElwee to J. Dreyfuss re: FW: underground piping, dated May 20, 2009 (5:25 PM),

Attachment:

"Potentially Contaminated Buried Lines.xls." (ENVYHC01244, ENVYHC01246-87).

Dreyfuss - Does not recall this email. Did not speak with Bailey, McElwee or anyone else about this email or its contents. Did not talk to Colomb about this.

McElwee - Sent this to Dreyfuss because Dreyfuss was prepping Colomb and riding up with him to the testimony and he wanted Dreyfuss to know what he knew and to assess its level of importance. Does not recall a discussion with Dreyfuss about this. Did not view it as a big issue that Thayer may have said something incorrect under oath. Does not know why he did not view it as a big issue.

May 20, 2009 - Bailey separately forwarded his table and the previous email string to Peter Guglielmino. See Tab 6, Email fromG.Bailey to P. GugJielmino re: FW underground piping, dated May 20, 2009 (9:55 AM),

Attachment:

"Potentially Contaminated Buried Lines.xls."

(ENVYHCO] 288).

Guglielmino - By the time he had received this email, he had talked to Metell about the information that Metell had requested. See below.

,Bailey-Guglielmino had called him and asked him questions regarding underground piping so he copied him on his table.

May 20, 2009 - Bailey responded to McElwee's 3:39 PM email:

Let me start over...

The chemistry sink line drain is not in my Program. I do not have information on it.

For the other potentially contaminated systems, thaes as far as J will go in characterizing those systems. For my Program, J took a conservative 86

ATTORNEY-CLIENTPRJVILEGE ATTORNEY WORK PRODUCT stance that they were indeed contaminated. The Tritium Study performed years back is what I reference for this statement. I think an RP type would be of better help for this.

How I ask it is, "If Jopen this system, do Jhave to implement radiological controls?" I know it's considered a sign of insanity. but my answer to myself is, "I don't know."

See Tab 4, Email fromG.Bailey to D. McElwee, J. Meyer re: RE: underground piping, dated May 20,2009 (ENVYHC01242).

Bailey-Does not remember his emails on May 20,2009. Does not recall any discussion between his first email and this one. No one told him to change his email or his statement. No pressure to change his table or to harmonize with previous testimony or answers. Did not elevate this as an issue. He was not raising a flag here, just answering the question.

McElwee - Does not recall Bailey's response; does not know whether information ever got to Colomb. His thought at the time was that this information needs to get to Colomb, not that there was an issue that needed to be cleared up.

LeFrancois - Does not remember this email and probably would not have read the entire email chain. Does not know whether he spoke with Bailey in between Bailey's emails, although possible because Bailey usually kept him informed ofthe issues he was working on. Did not discuss with anyone about a possible conflict with Thayer's testimony and did not understand there to be one.

ii.

Skibniowsky's response May 20, 2009 - Steve Skibniowsky, in the chemistry department, responded to Hardy's request as follows:

I believe the attached file should provide the information on the Chern Lab Drain Line Leak. I have also attached the file providing the location of the Interim Off Gas system that is buried just north ofthe plant stack. This piping contained radioactive gases from the Air Ejector. We a]so have contaminated underground piping from Radwaste to the Discharge Structure (Liquid Radwaste Discharge line) and, as Gary previously mentioned, the lines from the plant to the plant stack for Gland Seal Exhaust, AOG and Building Ventilation. J am not sure about the status of the lines from the CST to Radwaste or Radwaste Outside Tanks. Perhaps and engineer has some information on the underground portion of these contaminated pipe systems.

See Tab SA, Email fi*omS.Skibniowsky to 1. Hardy re: RE: underground piping. dated May 20, 2009 (10:45 PM) (ENVYHC01292).

87

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT Skibniowsky - Does not reca)) discussing this issue with anyone. Included his knowledge ofunderground piping, but does not recall why he added that.

Hardy - Reviewed Skibniowsky's summary. Understood that people were in Montpelier for testimony and this had to be done quickly. Did not recall any follow-up to this.

May 21, 2009 - Meyer forwarded Skibniowsky's email to McElwee, stating: "This is what Chemistry came up with on underground potentially contaminated piping. What do you think?"

See Tab 8, Email from J. Meyer to D. McElwee re: FW: underground piping, dated May 21, 2009 (ENVYHCOI292).

McElwee - Does not remember email or focusing on the other pipes that Skibniowsky had listed. Would not have had the knowledge to try to distinguish all the pipes that were listed in Skibniowsky's email from pressurized liquid systems.

May 21, 2009 - Meyer forwarded Skibniowsky's email to Dreyfuss and Mannai. See Tab 12C, Email from J. Meyer to J. Dreyfuss, D. Mannai re: FW: underground piping, dated May 21,2009 (ENVYHCOI353).

Dreyfuss - Does not recall this email. Aware that there was other piping at VY, but this did not raise an issue with him. Did not think about the inconsistency because he did not view it as inconsistent. At some point. had a conversation with Skibniowsky regarding the Chern Lab Drain Line leak.

Mannai - Was the coordinator ofemails. Does not recall any discussion about this issue.

Saying "no" to existence ofunderground piping that carries radionuclides did not strike him as incorrect at the time. Focused more on the Chern Lab Drain Line. After reading Skibniowsky's email, Mannai thought he did not know the nature ofthe underlying question. Knew engineering was working on this and they had a better understanding of buried piping. His job was for a sanity check, not a quality check.

May 21~ 2009 - Mannai requested Hardy to provide an "executive summary written up for the chemistry drain line issue by tomorrow." See Tab 12B, Email from D. Mannai to J. Hardy re:

FW: underground piping, dated May 21,2009 (5:23 PM) (ENVYHCOI352).

May 22, 2009 - Skibniowsky sent the Executive Summary concerning the Chemistry Lab Drain Line failure to Mannai. See Tab 12A, Email from S. Skibniowsky to D. Mannai, copied to 1.

Hardy, J. Dreyfuss, D. McElwee, L. DeWald re: FW: Executive Summary - underground piping, dated May 22, 2009 (ENVYHCO 1352).

May 22,2009 - Mannai responded to Skibniowsky's email with "Thanks Steve good work!"

See Tab 12, Email fromD.MannaitoS.Skibniowsky re: RE: Executive Summary underground piping, dated May 22,2009 (9:31 PM) (ENVYHC01352).

88

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT May 24, 2009-Skibniowsky provided Mannai with a revised Executive Summary ofthe Chem Lab Drain Line issue. See Tab 17, Email from S. Skibniowsky to D. Mannai re: Chem Lab Drain Line Executive Summary - Rev. I, dated May 24,2009 (ENVYHCO 1364).

b.

Bykov's Outline of Issues May 21,2009 - After the second day ofThayer's testimony, Bykov provided "a list ofthe subjects parties asked ofJay that are likely to come to Mike Colomb." Ofthe six items, one was listed as "Thursday 5/21 testimony ofJay Thayer concerning soil contamination - Karen and Brenda, can you email a.pdf ofthe rough version ofthis transcript to John Dreyfuss and Dave McElwee (who are copied above) tonight, for review with Mike?" See Tab 7B, Email from K.

Bykov to 1. Dreyfuss, D. McElwee, M. MeteJl re: Items for Mike Colomb from Jay's Testimony, dated May 21,2009 (ENVYHC01291).

May 21~ 2009 - Dreyfuss forwarded the Bykov email to a number ofpeople and stated that Mannai was "to coordinate," See Tab 7A, Email from J. Dreyfuss to D. Mannai, N.

Rademacher, et al. re: FW Items for Mike Colomb from Jay's Testimony, dated May 21, 2009 (ENVYHC01290).

Dreyfuss - Does not recall the email but recalls a discussion that centered on decommissioning costs and the number ofcubic yards of contaminated soil.

May 21, 2009 - Later, Mannai responded and had Lynn DeWald and Skibniowsky responsible for the soil contamination item. See Tab 7, Email from D. Mannai to 1. Dreyfuss, N.

Rademacher, et a!. re: Urgent Action Request - Items for Mike Colomb from Jay's Testimony, dated May 21,2009 (ENVYHCOI290).

May 21, 2009 - Mannai then sent an email to Guglielmino and Metell stating: "J understand you have provided or will provide an executive summary ofany underground piping issues that are potentially contaminated for Mike Colomb's testimony on Tues. Please cc me or forward to me." See Tab 9, Email from D. Mannai to P. Guglielmino, H. Metell re: Underground Contaminated Piping Issues, dated May 21,2009 (ENVYHC01344).

May 22, 2009 - McElwee emailed Dreyfuss responding to the six areas identified by Bykov.

McElwee shortened Bykov's first point to "Soil contamination" and provided the following summary (which was his "best stab at where thing[s] are as ofthis time"):

Response: J believe this issue is specifically about underground piping that may be subject to soil contamination. Jay spent a fair amount oftime on this issue. The NSA team identified the chemistry drain line as the only line which could have leaked out and contaminated some soil. The pipe has been sealed off, a new line installed to take its place and that is above ground. We have estimated the amount ofsoH potentially contaminated to be approximately 58 cubic yards and contained under the turbine / admin building floor and surrounded by foundations that go all 89

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT the way to bedrock. There are some other buried line-none ofwhich are known to be leaking and none which are under any system pressure.

See Tab] SA, Email from D. McElwee to 1. Dreyfuss, copies to J. Thayer, M. Colomb, J.

Marshall, K. Bykov and B. Miller re: Potential Issues for Mike, dated May 22,2009 (ENVYHC01359-60).

McElwee - Does not remember who gave him the information in the paragraph on soil contamination, but he would not have made it up by himself. Understood that the plant had condensate drain lines not under pressure, but does not know who told him. Metell may have told him because Metell was in Montpelier, but he does not remember. Does not think he talked about the substance of the last sentence with anyone who was copied on the email.

MeteJl-Was possible that McElwee got his information in this paragraph from Metell, although McElwee did not run the answer by him first.

Miller - Received this email, but no specific recollection ofdiscussing it with anyone.

Colomb - Does not recall this email. Soil contamination was a concern. There was no conscious effort to be careful with the statement about underground piping at VY, or to state that it was limited to pressurized or leaking piping.

Thayer - Does not recall this email.

May 22, 2009 - Marshall responded to McElwee's email: "This is a good summary of where NEC appeared to be going." See Tab 10, Email from J. Marshall to D. McElwee, J. Dreyfuss re:

Potential issues for Mike, dated May 22,2009 (ENVYHC01345).

Marshall-Believed that McElwee would have someone at the plant brief Colomb on these issues. Asked his secretary to print this email and put in the conference room to prepare Colomb. No discussion ofthe "other buried line" with anyone. Did not read that last line as referring to pipes that carried radionuclides.

May 22, 2009 - Colomb responded to McElwee's email: "Dave, Good Summary." See Tab 14, Email from M. Colomb to D. McElwee re: RE: Potential Issues for Mike, dated May 22. 2009 (ENVYHC01357).

Colomb - RecaJIs the issue of how much contaminated soil, but did not recall these specific emails.

May 23 and 24, 2009 -

Follow~up emails became focused on the issue ofhow much contaminated soil there was as a result ofthe Chern Lab Drain Line leak. See, e.g., Tab 15, Email from J. Thayer to D. McElwee re: RE: Potential issues for Mike, dated May 23,2009 (ENVYHC01359) ("Check the numbers - the Chern Sink Drain Line was estimated at 58,000 cu f!. That's what is in my testimony.") (emphasis in original); Tab 198, Email from M. Colomb to 90

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT K. Shufelt, J. Dreyfuss, D. McElwee, H. Metell re: RE: Items for Mike Colomb from Jay's Testimony, dated May 24,2009 (ENVYHC01370) ("There are 2 numbers for contaminated soil.... Why?"); Tab 19A, Email from D. McElwee to M. Colomb re: RE: Items for Mike Colomb from Jay's Testimony, dated May 24, 2009) (ENVYHCO 13 70) ("The 58000 is from the chern drain line - the 135000 is the total estimated possible for decommishioning [sic] funding estimates."); Tab 20A, Email from J. Thayer to M. Colomb, K. Shufelt, J. Dreyfuss, D.

McElwee, H. MetelJ re: Re: Items for Mike Colomb from Jay's Testimony, dated May 24, 2009 (ENVYHC01372-73) (explaining what the two numbers are and stating: "The important point is that the cost estimate contains a liberal contingency for potential unknowns.").

c.

Mike Metell's Request for Information and Summary of Underground Piping Shortly after Thayer's May 20 testimony, Metell also requested personnel at the plant to gather information about underground piping that carries radionuclides at VY. In addition, MeteH responded to Bykov's email and stated that he would provide a summary ofunderground piping atVY.

i.

Metell's Request for Information May 20, 2009 - after Thayer's testimony, Metell called Guglielmino at VY.

Metell-At the hearing, suspects he had some uneasiness about the testimony due to his knowledge ofthe scope ofpiping at VY. Did not say anything to Thayer or the attorneys about his uneasiness. Thought Thayer gave a good answer in a potentially tough area because Thayer referred to pipes carrying liquids. Believes McElwee came to him after Thayer's testimony and said that they needed to chase this down. Dreyfuss may have later requested that he do the same thing.

Called GugJielmino to run down issue on underground piping. Called Guglielmino back, who said Naeck said that there were drain lines offofAOG system. Metell was initially worried about the drain lines, but GugJielmino stated that NSA was not concerned about those. Metell responded "great." He felt better because NSA was not concerned. Metell thought that this information was awkward, but did not call the lawyers about it or talk to Dreyfuss or McElwee about it. There was no discussion about keeping this information from the proceeding.

Discussed with GugJielmino that NSA was not interested in the underground piping and that it was not in the scope ofwhat the NSA team wanted to look at. GugJielmino knew this information because he worked with NSA. IfNSA was not concerned, then Metell felt that Thayer's answer was correct in the total scope ofthings. Also, the lines were not um;ler pressure. No specific recollection of having discussed with anyone other than Guglielmino, but probably would have talked to McElwee.

Guglielmino - Metell called and asked him to contact Bailey and find out information about underground piping and what ENVY reported to NSA regarding underground 91

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT plpmg. Called Bailey, who. said so.!Ileo.ne had already called him abo.ut that and that he was loo.king into. the info.rmatio.n. Bailey sent GugJielmino. the table and they met and walked through so.me o.fthe table. Spo.ke to. Bailey abo.ut contaminated undergro.und piping and what ENVY to.ld NSA. Bailey did no.t recall what he said to. NSA, but that they did give NSA the matrix and piping drawings. Bailey po.inted o.ut the AOG system and Guglielmino. asked whether it carried liquids, and Bailey respo.nded "no., gas."

When Metell called Guglielmino. back, they discussed that AOG was nDt an issue because it vents gas. To.ld MeteU what he had learned fro.m Bailey. Do.es not recall telling MeteU what BaiJey remembered telling NSA. They did nDt discuss ho.w it might affect the VPIRG response, althDugh they might have talked abo.ut ho.w this related to. what ENVY said abDut not having any pipes. They agreed that they did no.t have anything that carried liquid and there wasn't anything that was a risk. What was said was not wrong and never talked about fixing it. They did not talk about who else needed to know. Did no.t discuss Thayer's testimony. Was alright with the idea that there were no. applicable pipes. After this conversation, Metell told him to stand down. Received copies of later emails because Metell is in the habit ofwanting a back-up fDr license renewal activities.

ii.

Metell's Summary ofUnderground Piping May 22, 2009 - After receiving Bykov's email, Metell told Mannai, "I'll wDrk an executive summary on underground piping sDmetimeto.day." See Tab 13A, Email fro.m H. Metell to D.

Manna.i re: FW: Items fDr Mike ColDmb from Jay's TestimDny, dated May 22,2009 (7: 15 PM)

(ENVYHCO 1355). Later that night ofMay 22, Mannai asked Metell the status ofthe executive summary because "This is the only outstanding item!" See Tab 13, Email fro.m D. Mannai to H.

Metell re: Re: Items for Mike Co.lomb frDm Jay's Testimo.ny, dated May 22,2009 (9:35 PM)

(ENVYHCO 1355).

May 22~ 2009 - At 9:54 p.m., Mannai emailedMcElwee, with copiesto.Co.lomb and Dreyfuss, a summary Dfthe CODling tDwers issue, stating: "This was prDvided earlier via Norm. But in case it didn't I cc Mike and John. Mike Metell is working Dn exec summary for underground piping."

See Tab 28, Email from D. Mannai to D. McElwee, copied M. Colo.mb and J. Dreyfuss re: Fw:

Co.oling towers, dated May 22, 2009 (ENVYHCO 1817).

May 23, 2009 - Metell drafted a Dne-page summary on underground piping:

Underground Pipe Summary The CRA report stated that there are no underground piping systems carrying radionuclides at VY.

In disclosure. VPIRG EN 4-6 asked if any previously used underground piping system carrying radioactive material leaked. Entergy noted that the Chemistry Lab Drain Line had carried radionuclides and had failed during VYNPC ownership. It was estimated to have conservatively contaminated about 58,000 cu-ft of soil under the Chem Lab. Since it was isolated by concrete and bedrock.

VYNPC left it in place and the NRC okay-ed via a SER.

92

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT The CRA team talked with Gary Bailey who is the cognizant engineer for underground pipe. [VERIFY WITH GARY]. We understand that Gary discussed:

o Radwaste to River Discharge line - This line has not been used since 1981. Since it was used to discharge low radioactive fluids to the river, if it leaked, it would be inconsequential.

o CST to Radwaste line - Is in a trench.

o Piping to RW Hold Tanks (East Side) is above ground.

o AOG piping - Carries radioactive noble gases to the stack for release.

Some of the gas decays into solid material.

o Drain lines from AOG, SBGT, and Stack Sump return condensed water underground to Radwaste Equipment Drain Sump. Isotopes in this water would be dissolved gases which would have been allowed to be discharged to atmosphere.

One problematic statement - VPIRG asked if there had been underground piping systems carrying radionuclides at W in the past. We could have answered the above bullet, but did not.

See Tab16A, Document from Metell's computer, dated May 23,2009 (ENVYHC01368); Meta data shows Metell created it at 21: 1 0 and last modified it at 16:00 on May 24,2009. See Tab l8D, Screenshot ofMeta data, dated May 23, 2009 (ENVYHCO] 678).

May 23, 2009 - Late at night, Metell emailed the document to Mannai stating "1 would like to run this by Gary Bailey, as I have cobbled this information from several sources relating to some ofhis work. I will try to reach him tomorrow during the day." See Tab 16, Email from H.

Metell to D. Mannai re: Underground Piping Summary, dated May 23, 2009; Attachments:

Underground Pipe Summary.doc (ENVYHC01362).

Metell - "cobbled... from several sources" means that he received it from Guglielmino's phone call, who told him what Bailey had said.

May 24,2009 - Mannai responded to the Metell email, stating: "Ok but I would like to get this to Mike Colomb today." See Tab 18A, Email from D. Mannai to H. Metell re: Re: Underground Piping Summary, dated May 24, 2009 (ENVYHCO 1367).

Mannai - Had to fill in Colomb about the issues. Knew of Skibniowsky and Bailey's work and thought that they were distributing a lot ofgood detail, including Bailey's table.

Received the Metell May 23 email. Focused on getting this information to Colomb.

Does not remember the attachment or that it created any inconsistency. MeteU sent this to Mannai as coordinator, not for him to validate. Thought it was good that others were helping Bailey because Bailey was fairly new. Spoke with Metell and told him to make sure he got the information and to validate the statements.

Understood that they could expect a question about underground piping that carried radionuclides; not just about the Chern Lab Drain Line. Did not recall any concern being expressed about the NSA Report or the VPIRG response. Never saw or read Thayer's testimony on this issue. No conversation about limiting the answer to liquid, not gas.

93

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT May have been some conversation with Metell about having to be careful regarding underground pipes that carried radionuclides. There was a potential concern regarding what they had said previously and that Gundersen was concerned about underground stuff. Mannai agreed that "carefully parsed" is a good way to describe the approach.

Mannai talked with Metell that weekend and felt that the information was incomplete.

Subsequent to this, he remembered that he did not want an inconsistency, he believes, with the VPIRG response. Believes that either MeteH or McElwee would have brought up the subject of inconsistency, but does not recall specifical1y. Does not recall ifthe inconsistency was about testimony. Wanted to get the right information to Colomb.

Words were going to be chosen pretty carefully about this information. Did not remember focusing on previous statements - just to be careful about characterizing the underground piping carrying radionuc1ides. They needed accurate information for Tuesday and they needed to be careful about characterizing it.

May 24, 2009 - Metell emailed a revised Underground Pipe Summary to Mannai, stating:

J talked with Gary Bailey today. Gary confirmed that he talked with the NSA team, but mostly on a programmatic level on underground piping.

NSA didn't specifically discuss underground radioactive piping except briefly on the Chern Lab line, and how that was not in Gary's program as it was not active.

Please see the modified outline attached. It appears that we may have overstated answering VPIRG EN 4-6 Part a. unless you consider the function ofthe AOG, SBGT, and Stack sump condensed water return lines as returning primarily water.

See Tab 18, Email from H. MeteH to D. Mannai re: RE: Underground Piping Summary, dated May 24, 2009 (5:02 PM) Attachments: Underground Pipe Summary.doc. (ENVYHC01367).

The attachment to the May 24 email sent at 5:02 pm modified the third paragraph ofthe earlier attachment to read:

The CRA team talked with Gary Bailey who is the cognizant engineer for underground pipe. Gary discussed his underground pipe program in general terms with the CRA team.

Gary indicated to Peter G and me, that the following underground lines exist:

Metell-Wrote the Underground Piping Summary based on what GugJielmino told him.

Revised it after talking with Bailey on Sunday, but did not have the document in front of him, so did not go through it point by point. Asked Bailey what he said to NSA, and Bailey said he did not get into specifics. Asked whether NSA talked to Bailey about underground pipes that carried radionuclides and Bailey responded that he did not talk to them in those tenns. MeteH thought that was unfortunate and so wrote this email. This probably made him a little more uneasy with Thayer's testimony.

94

ArrORNEY-CLlENT PRIVILEGE ArrORNEYWORKPRODUCT Copied the lawyers because they were involved in prep ofwitnesses. Did not think to include Marshall or Johnson, who were actually prepping Colomb. Copied Mannai and Dreyfuss because they were riding up with Colomb for the testimony on Tuesday.

No hotter issue for him than this one during Memorial Day weekend. Does not recall, but probably talked to Mannai about being uneasy. There was never any conversation about not letting this get out, keeping it from the proceeding or not derailing the proceeding.

Cannot explain why he did not raise this as a huge issue. No conversation about potential consequences ifthis information came out. No one told him to keep it quiet. Did not send directly to Colomb because he does not usually send things to VPs. Could have raised this issue better, but there was no conspiracy to hold this back.

As to the language in the cover email about the response being "overstated unless you consider," the logic included in that sentence eliminates some ofthe bullets that were contained in his list in the Underground Piping Summary document. Also, ifyou apply his logic that the question is limited by the context of"ofconcern to the NSA," all ofthe items listed in the Summary fall out.

Mannai - Gave the Chern Lab Drain Line information to Colomb, but does not know if the underground piping information ever went to Colomb. He remembers feeling that this information was incomplete, but he does not recall following-up on this and does not know why he did not. It may have just fallen offhis radar screen. Did not intend to withhold from Colomb. Does not know whey he did not forward this email to Colomb.

Thought he had dumped everything that Colomb needed on his lap. No discussion about withholding this information from Colomb or that Colomb did not need to see this.

Did not recall getting this to Colomb on Tuesday morning, but Mannai mayor may not have done so. They got a lot of information to Colomb. Mannai had the thought that the inaccuracy in the response to VPIRG:EN 4-6 would get fixed, although he did not know ofthe specific inaccuracy. Does not remember talking with Dreyfuss that Tuesday morning. Believed that all the information got to Colomb.

McElwee - Does not know if he ever read the Underground Piping Summary. Was at vacation home and does not recall working over the Memorial Day weekend. Ifit did not pertain to him, he would not have paid a lot ofattention to it. Definitely did not discuss with anyone the topic ofthe VPIRG answer being wrong. Sent this issue to Mannai who was at VY making sure that the information got to the right people. Does not recall any discussion with Mannai about this. This email was copied to the right people, including Dreyfuss, who was riding up with Colomb. Ifhe had thought that there was a problem with a VPIRG response, he would have contacted Marshall.

Dreyfuss - Does not remember opening the Underground Piping Summary; never seen it before we showed it to him. Does not recall the Metell email, which referred to "overstating" our response to VPIRG. Does not recalJ any discussion about this. Did not discuss with Colomb and did not talk to Metell about the email or the attachment. Does not recall being alarmed about this issue.

95

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT Guglielmino - Did not provide direct input for the Underground Piping Summary, but some ofthe information might be MeteH's interpretation of Guglielmino's discussion with Bailey. Did not recall seeing the "one problematic statement" in the attachment.

Did not discuss this issue with anyone on the email except with Metell. Did not discuss with anyone that there was a need to clear up Thayer's testimony. Believed at the time that, excluding gaseous piping, the answer to VPRIG 4-6 was correct.

Bailey - Remembers talking to MeteU but does not recall discussing specific lines or what was discussed with NSA. Does not remember seeing the Underground Piping Summary document and is not likely to have looked at it over the Memorial Day weekend. Some details in the Summary did not come from him, e.g.* at the time he did not know that the radwaste line was inactive. Does not recall any discussion ofthe VPIRG response with Metell. Thought he was providing clarification ofthe buried piping program, not background for testimony. Does not think he discussed the Chern Lab Drain Line with MeteU because it was not within Bailey's table.

Miller - Did not recall reviewing either the May 24 MeteH email or the attachment. His electronic records indicate, however, that he did open the email because he placed a follow-up flag on it. Suspected that he did so on Monday morning because he worked early on Sunday ofMemorial Day weekend, not late when this came in. Electronic records also indicate that on Friday, May 29,2009, he placed the email in the Filesite storage system at DRM. He did not recall doing so. Electronic records confirm he did not forward this email to anyone including Marshall and Johnson. Had the email registered, he would have sent it to Marshall and Johnson. Did not discuss this with Bykov or anyone else. Did not ignore to avoid delay ofthe proceeding - they had been correcting answers and supplementing discovery throughout the proceeding. Metell should have known that Miller was not responsible for Colomb's prep. Metell would not hesitate to contact Marshall on other things.

Colomb - Never saw or read the email or the attachment. (He was not copied on it.)

May 26, 2009 - In the morning, Guglielmino emailed the Metell chain with Underground Piping Summary document to Wayne Limberger, stating: "This shuffle ofemails occurred last week.

Has Mike or Dave discussed this with you?" See Tab 23B, Email from P. Guglielmino to W.

Limberger re: FW underground piping summary, dated May 26, 2009 (ENVYHCO 1431).

,Guglielmino - Wanted to make sure that Limberger was not duplicating efforts and they were working together. Knew that Limberger had pulled out documentation related to the Chern Lab Drain Line leak and the VPIRG response.

May 27, 2009. - Limberger replies to Guglielmino that he had not discussed this and that "There doesn't seem to be a good record ofVPIRG Round 4 responses in our electronic folders, at least not that J can find." See Tab 23A. Email from W. Limberger to P. Guglielmino re: RE:

Underground Piping Summary, dated May 27,2009 (ENVYHCOI43 1). Later that same day.

Metell emailed Limberger, stating "Wayne - we are now OK on this item. We should talk but 96

AITORNEY-CLlENTPRIVILEGE AITORNEYWORKPRODUCT we had a couple oftwists that we had to handle over the weekend." See Tab 23, Email from H.

Metell to W. Limberger re: RE: Underground Piping Summary, dated May 27,2009 (ENVYHC0143 1).

Limberger - Did some digging on the Chern Lab Drain Line leak and the amount of contaminated soil. Did not recall knowing that Colomb was testifying. Received the email at home and called Metell to ask what he should do. Metell said nothing at the moment. Does not recall seeing the Underground Piping Summary document. Did not recall the twists and did not consider it further when he did not have to do any work on it.

Metell- "Twists" were probably the discussion of open lines. Does not recall talking with Limberger. The issue had been closed.

!vIcElwee - Does not remember this email or having a conversation regarding the content ofthe email.

Guglielmino - Did not know what the twist was.

d.

Garry Young's testimony May 20, 2009 - Miller, who was responsible to prepare Garry Young for testimony. sent an email stating: "In preparation for Mike Colomb's testimony, I think it would be useful for Mike to be aware ofthis situation at Oyster Creek and to confirm that the VY condensate system piping IS accessible for inspection unlike at Oyster Creek." See Tab 24B, Email from B. Miller to D. McElwee, J. Dreyfuss re: FW: Oyster Creek-Lawmakers need to weigh in on Oyster Creek, dated May 20, 2009 (ENVYHCO]433) (Capitalization in original). Later that day, Young emailed about an issue that arose during his testimony about the leaks in underground piping in the condensate system at Oyster Creek. See Tab 24C, Email from G. Young to H. Metell, J.

Thayer, D. McElwee, K. Bykov, W. Glew, B. Miller, L. Smith re: FW: Oyster Creek-Lawmakers need to weigh in on Oyster Creek, dated May 20, 2009 (ENVYHC01433).

MiJler-Thought the issue could come up in Colomb's testimony so he forwarded it. Did not recaIl any conversations about the email or the subject.

Johnson - Marshall told him to print this email out and put it in the Colomb prep folder.

May 22, 2009 - Dreyfuss responded that he would briefMike Colomb on the Oyster Creek issue. See Tab 26, Email from J. Dreyfuss to B. Miller and D. McElwee re: RE: Oyster Creek Lawmakers need to weigh in on Oyster Creek, dated May 22,2009 (ENVYOI01685).

e.

Final preparation of Colomb May 25, 2009 - Johnson ofDRM emailed Thayer, Colomb, Dreyfuss and McElwee (cc:

Marshall, Miller, Glew, Bykov) with a brief "digest ofthe highlights ofJay's testimony." It has at the relevant pages "contaminated soil" as a description. See Tab 20, Email from B. Johnson to 97

AITORNEY-CUENTPRIVILEGE AITORNEY WORK PRODUCT M. Colomb et al. re: RE: Items for Mike Colomb from Jay's Testimony, dated May 25,2009 (ENVYHCOI372).

May 26, 2009 -- Colomb drove from Vermont Yankee to Montpelier to testify. Dreyfuss was with him in the car.

Colomb - Does not recall talking about underground piping during the drive up.

Believes he met Dreyfuss at the ENVY office in Brattleboro, not at the site.

Dreyfuss -- Only thing related to underground piping discussed was the Chem Lab Drain Line leak -- may have called Skibniowsky from the car that morning to get the background on it. Did not remember discussing with Colomb the issue ofunderground piping that carries radionuclides, but stated it was possible that he told Colomb that VY had underground pipes. He did not discuss Metell's May 24 email or the contents. His focus was on getting Colomb smart on decommissioning, the Chern Lab Drain Line leak and other issues. He did not discuss with Colomb harmonizing the testimony or a possible overstatement ofthe response to VPIRG.

LeFrancois - Remembers prepping Colomb once in Colomb's conference room and he thought it was on the morning ofColomb's testimony. He thinks that Bill Rice or Bailey was with him. It was about flow-accelerated corrosion or piping - he did not recall. No calendar entry confirms this and no one else remembers this meeting. LeFrancois stated it was a brief on the BPTIP for Colomb and what the BPllP had in it. They spoke about the content ofthe program. The discussion did not include Metell's Underground Piping Summary because he has never seen it. Bailey does not recall this meeting or ever prepping Colomb. Rice did not participate in this kind of meeting with LeFrancois and Colomb. Dreyfuss does not recall this.

Mannai - Recalls possible discussion in the hallway with Colomb on the morning of Colomb's testimony. Does not remember talking about underground piping. He would have asked ifColomb had all the information he needed. Does not remember LeFrancois being there.

May 26, 2009 - Colomb had a short prep session at the DRM offices in Montpelier before testifying. Marshall, Dreyfu'ss, McElwee, Bykov and, for a short time, Johnson were present.

[.:olomb - Was not present at Thayer's testimony but did go over the testimony and was told the concern was a breached pipe. Was a focus in the prep session - was told that he needed to know the Chern Lab Drain Line leak and how much contaminated soil because it was not responded to completely before. No concern raised as to the existence of underground piping that carried radionuclides or being consistent with previous answer on that.

Johnson - May have spent at most an hour in that prep session before leaving for the hearing. He believes Bykov, McElwee, Metell and Marshall were present. He was not sure whether Glew was present at that prep session.

98

ATTORNEY*CLJENTPRIVILEGE ATTORNEY WORK PRODUCT MarshaJl-No discussion ofavoiding an issue about underground piping because of potential delay. This was not a significant issue and everything he understood was consistent with the Response to VPIRG:EN 4-6.

Dreyfuss - The issue related to underground piping did not come up during the prep session at the DRM office in Montpelier-decommissioning costs were the hot issue.

McElwee - Does not recall any discussion ofunderground piping at this prep session; did discuss contaminated soil from Chern Lab Drain Line leak.

May 26, 2009 - Colomb testified as stated above regarding the Chern Lab Drain Line leak and did not refer to any other underground pipes that carry radionuclides at VY.

May 26, 2009 - Bykov's contemporaneous notes from the hearing provide:

Soil Contamination

- Chern lab to radwaste bldg.

? - depth ofpipe See Tab 27, K. Bykov Notes, dated May 26, 2009 (ENVYHCO 1803).

Colomb - Does not recall ifthat was his entire answer or whether he was going to add anything before the folJow-up questions came from the Board.

Dreyfuss - Colomb's response did not stand out to him.

Metel! - Did not know ifhis information got to Colomb. He had no discussion with anyone about Colomb's testimony.

May 26, 2009 - Glew provided a short summary ofColomb's May 26 testimony, which does not mention anything about soil contamination or underground piping. See Tab 22, Email from W.

Glew to M. Colomb et al. re: VY Continuing Ops CPG hearing - Day 5 report (Week 2), dated May 26, 2009 (ENVYHC01429). His contemporaneous notes from Colomb's testimony stated:

- underground piping - radionuclides where is line?

under chern lab bldg.

...... - c1d pipe be more than 3 feet below ground?

- cleanup for decomm.

See Tab 29, Glew Notes from Colomb's 5/26/09 Testimony (ENVYHCO 1821-22).

99

A TrORNEY-CLIENT PRlVILEGE ATTORNEY WORK PRODUCT

3.

Analysis & Conclusion After Thayer's testimony on Wednesday, May 20, 2009, two separate ENVY personnel who attended the hearing, McElwee and Metell, identified a question posed to Thayer on underground piping carrying radionuclides as a potential issue for Colomb's testimony set for May 26, 2009. ENVY personnel at the plant gathered information that identified several underground pipes that carried radionuclides. In addition, two ENVY personnel identified the possible inconsistency ofthat information with either (1) Thayer's testimony, or (2) ENVY's response to VPIRG:EN 4-6. Despite identifYing the possible inconsistencies, ENVY personnel failed to properly prepare Colomb for his testimony to explain in detail the underground piping that existed at ENVY, failed to provide the PSB complete information about underground pipes that carried radionuclides in the wake ofThayer's testimony, and failed to correct or clarifY the ENVY response to VPIRG:EN 4-6.

The investigation did not substantiate that Colomb intended to mislead the PSB or others when be testified on May 26 in response to the question about underground piping. In addition, although ENVY personnel failed in their responsibilities to properly prepare Colomb, and in their responsibilities to ensure the accuracy of both ENVY's discovery responses and the record before the PSB, for reasons described below, the investigation did not substantiate that these failures resulted from an intent to mislead the PSB or the other parties to Docket No. 7440.

a.

Colomb Colomb denied that he intended to mislead the PSB in his testimony. He explained that the focus ofhis testimony and his preparation was on making sure that existing contamination was manageable. He also was told in his preparation that the main issue regarding underground pipes was about the breached Chern Lab Drain Line. Colomb stated that the context of the questioning supported what he thought the aim ofthe question was - how much contaminated soil existed at VY and would have to be remediated. Thus, he was narrowly focused when he responded to the question. He stated that he did not remember any preparation regarding the pure question of whether any contaminated underground pipes existed at VY.

Colomb's explanation for why he answered the question the way he did is supported by the evidence. First, the context ofthe testimony supports that the issue was soil contamination.

DPS Counsel Hofmann stated that there was "one question referred to you from Mr. Thayer the other day...." She then stated: "The discussion was about underground piping and possible contamination. He thought you would know the answer, so do you know ifthere's any underground piping at Vermont Yankee carrying radionuclides?" Thus, as presented to him, the context was soil contamination, as he was prepared to expect (see below). When he responded with the Chern Lab Drain Line leak information, the foHow-up questioning focused on the particulars ofthat line.

Second, the prep sessions for Colomb's testimony did not focus on the issue ofthe existence of underground piping that carried radionuclides. Instead, to the extent they discussed underground piping, it was in the context ofsoil contamination from the Chern Lab Drain Line leak. The

]00

ATTORNEY-CLIENTPRIVILEGE ATTORNEY WORK PRODUCT testimony and contemporaneous records ofattorneys and Entergy personnel who attended Colomb's prep sessions all confirm this. Decommissioning costs, soil contamination and the Chern Lab Drain Line were a major focus.

Third, no ENVY person or representative interviewed remembers a conversation in which the issues that were identified (apparent inconsistency with Thayer's testimony and response to VPIRG:EN 4-6) concerning the existence ofunderground piping that carried radionuclides were discussed with Colomb. LeFrancois remembers a briefing on the morning ofColomb's testimony in which he discussed the BPTIP and what was in it, but did not discuss either ofthe two issues identified (because he did not know ofthose issues). (Colomb does not recall such a briefing.) Dreyfuss stated that it was possible that he told Colomb that VY had underground pipes, but does not specifically recall that and affirmatively states that he did not raise inconsistency as an issue with Colomb. Mannai does not recall giving Colomb the information on underground piping that carried radionuclides, and affirmatively states that he did not raise inconsistency as an issue with Colomb.

The investigation found two emails on which Colomb was listed as a recipient that could be interpreted as raising the existence ofcontaminated underground piping as a stand alone issue.

McElwee's May 20,2009 email stated that Colomb could be "asked during [his] testimony up here ifwe have any underground piping carrying contaminated material. We have said no but used to have a chemistry sink drain line that was leaking back in the 80's but has been abandoned once it was identified it was leaking." See Tab 4F, Email from D. McElwee to M.

Colomb" J. Dreyfuss, D. Mannai re: FW: underground piping, dated May 20,2009 (ENVYHCOI243). It also suggested that chemistry could give supporting documents to brief Colomb, Colomb also was copied on an email from Mannai to McElwee that forwarded information on the cooling towers and stated: "Mike Metell is working on exec summary for underground piping." See Tab 28, Email from D. Mannai to D. McElwee, copied M. Colomb and J. Dreyfuss re: Fw: Cooling towers, dated May 22, 2009 (ENVYHCO 1817). Neither email highlighted that there was an inconsistency or a particular issue about the existence of contaminated underground piping. The only other chain that included Colomb was the discussion about how much contaminated soil existed due to the Chern Lab Drain Line leak.

Thus, the focus ofthe emails that he received was on the Chern Lab Drain Line leak and not the existence or non-existence ofother underground piping that carried radionuclides.

b.

ENVY Personnel Although the Investigation did not substantiate that Colomb intended to mislead the PSB, the evidence uncovered required the Investigator to determine whether other ENVY personnel intended to mislead the PSB by their actions or inactions. Several individuals understood, or had sufficient information to recognize, the apparent inconsistency between the information that was being gathered with respect to underground piping that carried radionuclides and (1) what Thayer had stated in his testimony on May 20, 2009, and (2) what ENVY had responded to VPIRG:EN 4-6 in January 2009. As to the inconsistency with Thayer's testimony, on May 20, 2009, JeffMeyer stated clearly after receiving Bailey's information about potentially contaminated underground piping - "I am not sure how this corresponds to previous testimony that Dave mentioned, that said there was none." Meyer copied his superior McElwee on this 101

ATTORNEY*CLIENTPRIVILEGE ATTORNEY WORK PRODUCT email and McElwee sent it on to Dreyfuss. Thus, both McElwee and Dreyfuss, who were present at the hearings should have had an understanding ofthe apparent inconsistency with Thayer's testimony.

As to the inconsistency with the VPIRG response, Metell prepared an Underground Piping Summary and the May 24 evening email that specificaJJy raised the issue with VPIRG:EN 4*6

("we may have overstated our response" in the email and "One problematic statement" in the document). This email went to Mannai, McElwee, Dreyfuss and two attorneys - Bykov and Miller.

Instead ofensuring that witnesses testifying on behalf ofENVY and the Public Service Board were aware ofthese apparent inconsistencies, ENVY personnel either rationalized away the inconsistency or downplayed it so that there was no true inconsistency left. This section discusses those ENVY individuals who had some responsibility to ensure that this issue was properly raised. Although others (Bailey. Skibniowsky, Hardy, Meyer and Guglielmino) were involved in gathering information related to this issue, the investigation found that the individuals below were ultimately responsible for how ENVY responded to the issue.

Mannai - Mannai was designated to coordinate getting information to Colomb. He stated that it was his responsibility to make sure Colomb received the information about the underground piping. On May 22, 2009-, he told McElwee, with copies to Colomb and Dreyfuss, that Metell was working on an executive summary for underground piping.

Again, on May 24, he told Metell that he wanted to get the information on underground piping to Colomb on that day. Mannai further understood that there was some issue about being consistent with the VPIRG:EN 4-6 response. Yet he did not follow-through when Metell sent him the final email with the Underground Piping Summary. Mannai recalled that he believed the information Metell sent was an incomplete product, but he cannot explain why he did not foHow-up to ensure that it was complete, or forward it to Colomb. Mannai clearly did give other information to Colomb, so his failure to do so here is troubling. He did not recall why he did not do so. He stated that it may have dropped off his radar screen. He noted that Dreyfuss and McElwee were copied on the emaiJ as we]) and that they would be preparing Colomb for his testimony. Nonetheless, Mannai stated that it was his responsibility to get this infonnation to Colomb.

Metell-Metell clearly understood the issue from Thayer's testimony because he was uneasy when he heard it and he was troubled when he learned ofdrain pipes offthe AOG system. Instead of immediately raising a red flag to the highest level, Metell rationalized away the inconsistency by assuming that NSA was not concerned with those drain pipes when it reviewed the underground piping at VY. Metell believed that there would have been a goal ofbeing consistent with how NSA viewed the underground piping at VY that is, that there was none ofconsequence. The intent was to focus as NSA had focused.

Although he stated that there may have been a discussion about NSA writing the statement and that ENVY should be consistent with what NSA wrote, he does not recall any specific conversations he had with anyone about that goal. He thinks he may have discussed this with McElwee, Bailey andlor Guglielmino. He did not discuss that subject 102

ATFORNEY*CLIENT PRIVILEGE ATFORNEY WORK PRODUCT with Mannai, Dreyfuss, Bykov, Miller, Johnson, Marshall, Grace, Meyer, Hardy, Rogers, Thayer or Colomb.

Metell's desire to downplay the issue is evident in his May 24, 2009 email that attached his Underground Piping Summary. Instead ofdirectly raising the issue, he stated: "It appears that we may have overstated answering VPIRG EN 4*6 Part a, unless you consider the function ofthe AOG, SBGT, and Stack sump condensed water return lines as returning primarily water." Thus, he gives an apparent "out" for the issue he raised.

Given Metell's understanding that there was a context to the ENVY response to VPIRG:EN 4*6 (see above Issue No.5), his conduct here is especially troubling, although consistent with his view that it was NSA's interpretation that ENVY should support.

Metell conducted no follow-up with DRM even though he was in charge of the discovery responses to the VPRIG's Fourth Round requests. Metel! merely assumed that others would act appropriately on the information that he was providing, without ensuring that the issue was clearly understood.

McElwee - Between May 20 and 26, 2009, McElwee was involved in directing people to

(',ollect information regarding underground piping that carries radionuclides. Although he forwarded the information to his superior, Dreyfuss, McElwee does not recall any discussion with Dreyfuss about all the information regarding underground piping that carries radionuclides. He stated that he wanted to make sure that Colomb was prepared, but he does not remember doing anything to follow-up his emails. He agreed that one of his responsibilities was to make sure both Colomb and Thayer received correct information on this issue. He did not do anything to correct Thayer's testimony and he had no discussion about the interpretation ofthe question being necessary to understand the answer.

By the time Colomb testified, McElwee also apparently understood that there was a context to the answer that ENVY with regard to the existence ofunderground piping that carried radionuclides. Yet he did not alert anyone to the issue - not Thayer, not Colomb and not the attorneys representing ENVY. McElwee appears to have simply failed to follow-through on this issue and, instead. assumed that others would inform Colomb.

McElwee's position as liaison between ENVY and the State also places additional responsibilities on him to ensure that ENVY communicates accurately with the State, including the PSB. McElwee did not seek to clarify the context ofeither the Thayer testimony or the response to VPIRG:EN 4-6.

Dreyfuss - Between May 20 and May 26, 2009, Dreyfuss was copied on emails that raised the issue concerning the presence of underground piping that carries radionuclides at VY in the context ofThayer's testimony and the response to VPIRG:EN 4-6. Dreyfuss stated that although he does not recall the specific emails, he did not see the presence of such underground piping as an issue. He stated that he is not sure whether definitions of "radioactive" or "reliability" affected the way he viewed those emails. He does not recall any discussion about having to have a certain interpretation to understand ENVY's responses.

103

ATTORNEY-CLIENTPRIVILEGE ATTORNEY WORK PRODUCT Given his receipt of emails, Dreyfuss had the opportunity to ensure that Colomb was properly prepared for this issue and to ensure that Thayer's testimony could be reviewed within the context ofthe information on underground piping that carried radionuclides.

Dreyfuss, however, did not do so. Dreyfuss appears to have relied on others, and did not ensure that this was accomplished.

Dreyfuss's position as a Director, Nuclear Safety Assurance, and Management Sponsor for the CRA also places additional responsibilities on him to ensure that ENVY communicates accurately in the proceeding. Despite having received mUltiple emails that raised potential issues with Thayer's previous testimony and Colomb's upcoming testimony, Dreyfuss did not act on such information.

Bykov - The Investigator has not yet interviewed Bykov, although has plans to do so.

Bykov was copied on Metell's May 24 email with the Underground Piping Summary that was attached. Bykov also was involved in preparing the response to the VPIRG:EN 4*6 request. Moreover, she received McElwee's May 22 response to her six issues that included a reference to "some other buried line - none ofwhich are known to be leaking and none which are under any system pressure."

Glew - Glew was involved in the preparation for both Thayer and Colomb. He attended Thayer's testimony but did not follow-up with Thayer in terms ofwhy he paused so long before responding to the question about underground piping that carries radionuclides.

According to all of these individuals, there was no discussion about keeping this information from Colomb or from the PSB proceeding. They stated emphatically that there was no intent to keep anything from the proceeding.

The fai lures this report identified are serious. Nonetheless, the investigation did not substantiate that the individuals identified above had the intent to mislead the PSB or other parties about the existence of an underground piping system that carries radionuclides.

c.

DRM attorneys In addition to ENVY personnel, Miller ofDRM received Metell's May 24,2009 email with the Underground Piping Summary attachment. Although Miller was not assigned to prepare Colomb and he received the email on Sunday evening ofthe Memorial Day weekend, he clearly opened it and flagged it and later in the week filed it. Thus, he had an opportunity to identify this as an important issue and he failed to do so. The Investigation did not substantiate that Miller intended to mislead the PSB by ignoring the email. Miller was the first to provide the Metell May 24 email to the Investigator and seemed genuinely surprised to have found it in the DRM files. It appears that he simply did not understand at the time the fuJI import ofthe issue the email raised.

In addition, as discussed in Issue No. S above. Marshall and Johnson received information in March 2009 from Metell that discussed the "context" for understanding the response to 104

ATTORNEY*CLIENT PRIVILEGE ATTORNEY WORK PRODUCT VPJRG:EN 4-6. Neither Marshall nor Johnson, however. identified that this context should be explained in testimony by Thayer and Colomb. The prep sessions did not address the context issue at all. Even though he was uncomfortable with Thayer's response to the question during testimony, Marshall again did not seek to determine what the issue was and whether there was additional context that should have been explained. The Investigator did not substantiate that either Marshall or Johnson intended to mislead the PSB in their actions or failure to act.

L Issue No.9: Did David McElwee intentionally mislead Arnie Gundersen when McElwee responded to Gundersen's August 13,2009 question about underground piping carrying radionucIides at ENVY?

In July 2009, the Vermont Legislature'S Joint Fiscal Office ("JFO") contracted with A.

Gundersen to review the progress made by ENVY toward addressing the challenges identified in the CRA. Gundersen requested information from the DPS nuclear inspector and sent him an email stating: "I am aware ofother underground pipes (other than the chemistry drain line) that are contaminated based on ENVY's own statements in published reports... would you please ask ENVY to either elaborate on their previous statements that no such lines exist or to identify additionallines." See Tab 9A, Email from A. Gunderson to U. Vanags re: RE: Final Matrix &

invitation for update, dated August 12,2009 (ENVYHC01583).

DPS eventually forwarded the question to McElwee to address. See Tab 9, Email from U.

Vanags to D. McElwee re: FW: Final Matrix & invitation for update, dated August 12,2009 (ENVYHC01583). McElwee responded to Gundersen:

As for your outstanding question on underground piping goes, Act 189 requested that an underground piping system carrying radionuclide's (sic) be part ofthe inspection. Other than piping carrying gaseous material (with very low amounts ofcontamination and no median to contaminate the ground water which was the intent ofthis item from the legislature) we have none. Since this is not an item active in the review ofCRA recommendations, we consider this issue closed.

See Tab 12B, Email from D. McElwee to A. Gunderson re; [blank], dated August 13, 2009 (ENVYHCO] 592-93). The issue is whether McElwee intended to mislead Gundersen by providing the above response to the question about an underground piping system that carries radionuclides.

2.

Chronology May 14,2009 - ENVY submitted to the NRC its 2008 Annual Radiological Environment Operating Report (Annual Radiological Report) providing a summary and analysis ofthe radiological environmental data collected for the calendar year 2008. As had been the case in previous Annual Radiological Reports, copies were provided to DPS and the Vermont 105

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT Department ofHealth, Division ofRadiological Health (VDH). Similar to previous reports, the 2008 Annual Radiological Report identified, among other things, detectable Cobalt-60 (a radionuclide byproduct ofreactor plant operation) in a subset ofsamples taken ofstorm water drainsystem sediment. The report concluded that in no case did the detected level of radionuclides exceed the most restrictive federal regulatory or plant license limit for radionuclides in the environment:

Several sediment samples from onsite locations (from the plant storm drain system) had low levels ofradioactivity resulting from emissions from the Vermont Yankee plant. In all cases, the possible radiological impact was negligible with respect to exposure from natural background radiation. In no case did the detected levels exceed the most restrictive federal regulatory or plant license limits for radionuclides in the environment. Measured values were several orders ofmagnitude below reportable levels....

See Tab lA, Attachment 1, Vermont Yankee Nuclear Power Station 2008 Annual Radiological Environmental Operating Report, dated May 14,2009, at 112 (ENVYHCOI560).

July 24, 2009 - Gundersen sent an e-mail titled "information request #2" to Vanags, Hofmann, O'Brien and Webster, with copies to (Senate President) Peter Shumlin and (Speaker ofthe House) Shapleigh Smith, no copies to ENVY personnel:

On page 24 ofthe POP report, we reported to the Vermont Legislature in March 2009 that: "The Panel was informed that there were no systems with underground piping that carry radioactivity at VY." This statement was based on NSA's assurances to the POP which in tum were based on ENVY's statements to NSA. I have since become aware that there may be underground pipes that do indeed carry radioactivity at VY and am trying to understand this apparent discrepancy between the published ENVY reports indicating radioactive underground piping and what we said in the POP report.

Could you please ask ENVY to confirm in writing the following SPECIFIC question: "Is there underground piping that carries radioactivity at VY?" If, for some reason, the POP misunderstood NSA and ENVY and there is, in fact, underground piping that carries radioactivity, I would like ENVY to list those underground pipes it is aware ofthat may contain radioactivity.

See Tab 6D, Email fromA.GundersentoU.Vanagsetal.re: information request # 2, dated July 24,2009 (ENVYHCO] 577) (emphasis in original).

July 27, 2009 - Vanags replied to Gundersen, with copies to all plus to DPS consultant Hinkley, Allshouse ofNSA, and McElwee ofENVY. Vanags congratulated Gundersen on his recent 106

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT appointment by the Joint Fiscal Committee, invited him to meet, and informed him ofa planned meeting at the site. With J'espect to the information request, Vanags said:

In addition, the Department believes it will be more efficient and less prone to miscommunication ifyour questions are given directly to Vermont Yankee rather than going through the Department. I copied Dave McElwee to this email as the person at the plant who can help you.

See Tab 2, Email from U. Vanags to A. Gundersen re: RE: information request #2, dated July 27, 2009 (ENVYHC01562).

July 29, 2009 - Gundersen replied to Vanags and McElwee, with copies to Hinkley, Woyshner, Allshouse and Hofmann, stating that he did not have confirmation that McElwee should be his contact at ENVY and noting that his original question had not been answered. See Tab 6C, Email from A. Gundersen to D. McElwee, U. Vanags re: Re: Thanks Uldis, dated July 29,2009 (ENVYHC01575). Vanags responded tbat McElwee was on vacation and that Gundersen likely would hear from McElwee on Monday. See Tab 6B. Email from U. Vanags to A. Gunderson re:

[blank], dated July 29,2009 (ENVYHC01575).

Early August 2009 - Entergy and ENVY personnel discussed how to accommodate and interface with the new legislative oversight by Gundersen in his new role. Entergy and ENVY personnel considered various options with respect to coordination among ENVY, DPS and Gundersen, and considered protocols for information sharing. Thayer advocated for providing as much accommodation as reasonably possible out ofdeference to the Legislature and to honor a request for cooperation he received from DPS Commissioner O'Brien. ENVY personnel at the site including Colomb and Dreyfuss were concerned about the burden on site personnel and the potential chilling effect that the anticipated agenda-driven oversight would have on the willingness ofpeople working at the site to raise concerns and identify issues. Several options were disl:;ussed including asking Gundersen to sign a confidentiality agreement to protect ENVY proprietary information from unauthorized release to third parties. See Tab 3, Email from W.

Glew to S. Agresta re: Another potential Vermont crisis, dated Aug. 3, 2009 (ENVYHCOI565 66); Tab 4, Email from W. Glew to S. Agresta re: Vermont problem - decision required by 3 pm Weds., August 5th, dated Aug. 3, 2009 (ENVYHC01567-69); Tab 5, Email from W. Glew to S.

Agresta re: Revised Gunderson email, dated Aug. 4, 2009 (ENVYHCO 1570-73).

August 7, 2009 - On Friday morning, Gundersen emailed Vanags, with copies to McElwee, Hinkley, Woyshner, Allshouse and Hofmann, stating: "This is my third request for the same information...." See Tab 6B, Email fromA.GundersentoU.Vanagsetal.re: third try, dated Aug. 7.2009 (ENVYHC01575).

August "', 2009 - That afternoon, McElwee responded:

Hello Arnie. I am in receipt ofyour e-mail and can tell you that we have been working internally and with the Department on how we will be interfacing with you on the follow-up to the NSA recommendations. We believe we have a positive workable approach to close out the 107

ATIORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT recommendations that we can put in place within the next few days. We wiII then be in a position to address any questions you have on the CRA recommendations. Regards, See Tab 6, Email from D. McElwee to A. Gundersen re: [blank], dated Aug. 7, 2009 (ENVYHCO 1574).

August 7, 2009 - Gundersen replied, with copies to Vanags, Dreyfuss, Hofinann and Shumlin:

Thanks for the reply, Dave... It looks like soon I will be able to begin reviewing ENVY material, and that is good news. My legislative charter is somewhat broader than "following up on the NSA recommendations" and the Department has already suggested that I contact you directly on my specific concerns. We can have that discussion when I am allowed to see ifyour "workable approach" that you might be suggesting next week will address the entire legislative mandate, not just the "CRA recommendations." Have a good weekend.

See Tab 6, Email from A. GundersentoD. McElwee eta!. re: Communication with ENVY, dated Aug. 7, 2009 (ENVYHC01574).

August 11,2009 - Entergy and ENVY management still were considering the ENVY*

Gundersen interface protocol and Entergy counsel prepared a draft confidentiality agreement.

See Tab 7, Email from J. Cho to J. Thayer, D. McElwee, W. Glew and J. Dreyfuss re: RE J Cho's comments Gundersen letter 8*6*09 draft (2). August 11, 2009 (ENVYHC01578).

August 12, 2009 - On Tuesday morning, Gundersen wrote to Vanags, Hinkley and Woyshner, with copies to S. Klein and M. Obuchowski, thanking DPS and NSA for including him in their planning and for offering to briefhim. He noted that ENVY and McElwee were considering a narrower scope than his view ofhis legislative mandate. He noted "The JFC workscope is somewhat different than what ENVY was proposing." He also added among his "quick thoughts":

2....... would you talk to WSCI7 about the contaminated underground pipe issue. There are ENVY documents that indicate such pipes do exist.

See Tab 9C, Email from A. Gundersen to U. Vanags et aL re: RE: Final Matrix & invitation for update, dated Aug. 12,2009 (ENVYHC01584-85) (footnote added).

August 12, 2009 - At 10:40 a.m., Vanags responded. On this point, he said:

Could you clarifY the question to WSC? During the reliability inspection Vermont Yankee stated on many occasion (sic) that they do not have any

]n this context, WSC apparently refers to WSC International, the employer of several members ofthe NSA Audit team. See NSA Report at Appendix H, Assessment Team Resumes.

108 17

ATTORNEY~CLIENTPRIVILEGE ATTORNEY WORK PRODUCT underground active piping carrying radionuclides. They did note the chemistry drain line was found to be leaking in the past, but this is not in use any longer (inactive). As a result, we assessed the underground service water piping for the CVA to assess their BTIP program. WSC has asked the plant ifthere were any other active underground pipes that carry radionuclides and were told there are none.

See Tab 9B, EmaiJ from U. Vanags to A. Gundersen re: [blank], dated Aug. 12,2009 (ENVYHCO1583-84).

August 12, 2009 - At 11 :29 a.m., Gundersen wrote back to Vanags, with copies toXlein, Obuchowski, Hinkley. Woyshner, Hofmann, and Cotter:

I am aware ofother underground pipes (other than the chemistry drain line) that are contaminated based on ENVY's own statements in published reports... would you please ask ENVY to either elaborate on their previous statements that no such lines exist or to identifY additional lines.

See Tab 9A, Email from A. Gundersen to U. Vanags re: RE: Final Matrix & invitation for update, dated Aug. 12,2009 (ENVYHC01583).

August 12,2009 - At 1] :44 a.m., Vanags forwarded the above email string to McElwee:

Arnie has a concern that there maybe (sic) underground active pipes carrying radionuclides that we are not aware of. Could you address this?

See Tab 9, Email from U. Vanags to D. McElwee re: FW: Final Matrix & invitation for update, dated Aug. 12,2009 (ENVYHCOI583).

August 13,2009 - The following day, at 11:28 a.m., McElwee sent an email to Colomb, Thayer, Cho, Glew and Malmquist (DRM) providing a draft ofhis planned email to Gundersen enclosing a proposed protective agreement, discussing Gundersen's assignment in terms ofreviewing the CRAIPOP recommendations (as distinguished from Gundersen's asserted broader role), and providing a response to Gundersen's question about underground piping. On this last point McElwee wrote:

As for your outstanding question on underground piping goes, Act 189 provides that an underground piping system carrying radionuclides be part ofthe inspection. Other than piping carrying gaseous material (with very low amounts ofcontamination and no median to contaminate the ground water which was the intent ofthis item from the legislature) we have none.

Since this is not an item active in the review of eRA recommendations, we consider this issue closed.

See Tab llA, Email from D. McElwee to M. Colomb, 1. Thayer, 1. Cho, W. Glew, N. MalmqUist re: Protocol for working at VY, dated Aug. 13,2009 (ENVYHCO 1590-91).

109

ATTORNEY-CLIENTPRIVILEGE ATTORNEY WORK PRODUCT McElwee - Recalled a passing hallway discussion ofthe question with Skibniowsky and a telephone conversation with LeFrancois and Bailey; recalled he was told by LeFrancois and Bailey that NSA team originally was interested in condensate, was shown the BPTlP program and pipes in it, and they were not what NSA was looking for so they switched to service water. McElwee was already aware that AOG was gaseous; did not learn of condensate drains off ofAOG until more recently; thinks he spoke to Metell on the subject ofNSA's review. McElwee does not think he showed the proposed answer to Skibniowsky, LeFrancois, Bailey or MeteII ; just recalls discussing the subject matter.

Recalled discussing with Colomb the first paragraph ofthe proposed email, preceding the one quoted above - regarding the confidentiality agreement; did not recall Colomb having any discussion or question about the response to Gundersen's question on underground pipes; no reference back to May testimony in DPS proceeding; no discussion ofany specific systems; no comments, edits or other feedback. Thinks it likely he would have shown the email to Dreyfuss before talking with Colomb; thinks he likely discussed with Thayer the protocol for working with Gundersen in a weekly meeting; does not recall any discussion about the specific email or the answer on underground pipes with Thayer. Also thinks he would have informed ENVY media representative, Rob Williams, about arrangements with Gundersen in anticipation of Gundersen-generated media attention.

Did not try to identify the previous statements to whi~h Gundersen referred; presumed they were statements or documents given to NSA during the audit; understood that there were some underground gaseous pipes that carried radionuclides and believed that the NSA and DPS were not concerned with underground pipes that carried gas; primary focus was on making sure that Gundersen did not re-open the entire CRA process through the back-door; recalls Gundersen had been trying to reopen issues not identified in the NSA Report recommendations related to flow-accelerated corrosion, microbial-induced corrosion of underground piping; recalls direction not to permit Gundersen to range outside ofhis legislative mandate.

Skibniowksy, LeFrancois, Bailey, Metell-Do not remember conversations with McElwee on the issue.

rhayer - Did not recall a response to McElwee's email and stated that he did Dot think that McElwee's response raised an issue because it was consistent with his own understanding.

Colomb - Recalled seeing the language and approving; focus was on the larger issue of the confidentiality agreement, Gundersen's scope and impact on the site organization.

Did not recall any discussion about the language regarding underground piping.

Dreyfuss - Did not recall seeing the language in McElwee's draft response, but recalls confidentiality being an issue with Gundersen.

110

ATTORNEY-CLIENTPRIVILEGE ATTORNEY WORK PRODUCT August 13,2009 - At 3:33 p.m. that afternoon, McElwee sent the email to Gundersen with the paragraph quoted above unchanged. See Tab 12B, Email from D. McElwee to A. Gunderson re:

[blank], dated Aug. 13,2009 (ENVYHCOI592-93).

October 19, 2009 - Gundersen issued his Quarterly Status Report to the Joint Fiscal Committee.

At page 10, he identifies as New Major Issues Impacting ENVY's Reliability, Issue 3.]:

"Contaminated Underground Pipe Data Contradicted by State Department ofHealth."

Gundersen discussed a legislative hearing on September 15,2009, in which W. Irwin (VDH) informed the committee ofcontamination in VY storm drains and past leakage to the Connecticut River. The next four pages described Gundersen's view that this "new" information contradicts previous statements by ENVY during the CRA and by VDH in their reports. See Tab 14, Quarterly Status Report, ENVY, Reliability Oversight for Joint Fiscal Committee, Fairewinds Associates, Inc., dated Oct. ] 9, 2009 (ENVYHCO 1640-44).

Gundersen also described his view ofthe scope of his assignment from the legislature's lFC:

I was retained by the Joint Fiscal Committee (JFC) and the Joint Fiscal Office (JFO)(sic), to review the progress made by Entergy Nuclear Vermont Yankee (ENVY) toward addressing the challenges identified by Act J89: An Act Relating To A Comprehensive Vertical Audit (CVA) And ReliabilityAssessment OfThe Vermont Yankee Nuclear Facility.

See Tab 14, Quarterly Status Report, ENVY. Reliability Oversight for Joint Fiscal Committee, Fairewinds Associates, Jnc., dated Oct. 19,2009 (ENVYHCOJ633).

October 21,2009 - Irwin wrote to McElwee regarding Gundersen's Quarterly Report, advising McElwee ofwhat he had reported to his Commissioner:

The comments of Mr. Gundersen are hyperbole, and, in my opinion, bordering on irresponsibility.

To consider the storm drains buried contaminated piping is a stretch.

What is generally considered contaminated buried piping is that associated with contaminated systems ofthe plant, interconnecting plant components.

The storm drain from which the Connecticut River cobalt-60 contamination arose carries ground run-off only, no plant systems or components are connected to the storm drains.

See Tab 15, Email from W. Irwin to D. McElwee re: RE: quarterly report, dated Oct. 21, 2009 (ENVYHC01674). Irwin explained the source ofthe cobalt-60, and indicated that this issue has been known since] 983, when plant personnel disclosed it to the NRC. See Tab 15, Email from W. Irwin to D. McElwee re: RE: quarterly report, dated Oct. 21, 2009 (ENVYHCOI674).

October 21, 2009 - Irwin sent a nearly identical email to Vanags that McElwee circulated to Colomb, Thayer, Smith, Williams, Glew, Cho and Dreyfuss, with a note "For internal use only

!!!!" See Tab 16A, Email from W. Irwin to U. Vanags re: FW: Arnie Gundersen's report to JFO 111

A1TORNEY~CLIENT PRIVILEGE ATTORNEY WORK PRODUCT re: VY, dated Oct. 21,2009 (ENVYHC01677); Tab 16, Email from McElwee to M. Colomb,et at. re: FW: Arnie Gundersen's report to JFO re: VY, dated Oct. 21, 2009 (ENVYHCOI677).

Dreyfuss - Recalled the issue of storm drains being raised in a row related to disclosure oftritium in trace amounts, and that the Company had fully disclosed the sample results; assumed these were the reports to which Gundersen referred to in his October report about the storm drain issue.

3.

Analysis & COIrclusion The investigation did not substantiate that McElwee intentionally misled Gundersen in his August 13,2009 response.

The email exchanges show that Entergy and ENVY executives viewed Gundersen as a biased critic opposed to license renewal, and were concerned about his new legislative role as a contractor to the Legislature's JFO. They were concerned that Gundersen would seek, to reopen issues from the audit. They also were concerned about establishing precedent for this new legislative oversight in addition to the DPS inspector assigned to the facility and the additional resources that might be necessary to accommodate Gundersen. They also expressed significant concern that Gundersen's involvement in site affairs would have a negative impact on the site safety culture and safety conscious work environment, potentially making site workers less willing to raise concerns or issues to management for fear they would be misrepresented in the media. Accordingly, Entergy and ENVY management devoted time and attention to the scope of Gundersen's mandate and the process they would use to assist him in accomplishing that scope ofwork:.

In this context, McElwee - who would be Gundersen's primary point ofcontact - received Gundersen's first information request in his new role from Vanags. Gundersen asked:

CouId you please ask ENVY to confirm in writing the following SPECIFIC question: "Is there underground piping that carries radioactivity at VY?" If, for some reason, the POP misunderstood NSA and ENVY and there is, in fact, underground piping that carries radioactivity, I would like ENVY to list those underground pipes it is aware ofthat may contain radioactivity.

See Tab 6D, Email from A. Gundersen toU.Vanagsetal. re: information request # 2, dated July 24, 2009 (ENVYHCO) 577) (emphasis in original).

Gundersen's question fed directly into an area that ENVY management believed was unrelated to any ofthe NSA or POP recommendations. McElwee spoke with Skibniowsky, Metell, LeFranc.ois and Bailey and understood that NSA had in fact looked at the BPTIP and understood the extent ofburied piping that carry radionuclides at VY. He stated he learned from them that NSA had considered this information and apparently concluded that it did not fall within their understanding ofthe scope ofAct 189's requirement. McElwee said he did not ask about the 112

ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT ENVY documents to which Gundersen referred, and presumed they were documents that had been given to NSA.

McElwee waited to respond to Gundersen's question while senior management made decisions about the protocols for information exchange and while a confidentiality agreement was prepared by counsel. McElwee's email was primarily a transmittal ofthe confidentiality agreement that Entergy hoped would establish a constructive process by which Gundersen could complete his assignment for the JFO and the company could mitigate to the extent possible the negative impacts on site resources and willingness of workers to raise concerns. In this email transmitting the document, McElwee also provided a response to the question about which Gundersen had expressed impatience.

Because Gundersen's new role was an issue for senior site management, McElwee shared his proposed email transmitting the confidentiality agreement with executives, senior management and counsel. To date, the investigation did not find email replies. Colomb recalled discussing the subject with McElwee and McElwee saying he would respond about the piping and the AOG system. Colomb did not recall reading the email. He did not recall relating the subject back to his testimony in May.

McElwee's response, which stated that there were none except for gaseous underground piping systems that carried radionuclides, was consistent with his earlier belief that NSA had looked at all ofthe underground piping systems and had determined that the ones that were potentially contaminated did not fit the legislative intent of Act 189's requirement to review an underground piping system that carries radionuclides. Therefore, there were no piping systems ofconcern.

See supra Issue No.2. His description ofgaseous piping is also consistent with ENVY's understanding that these systems were not of interest to NSA, DPS and POP, which was subsequently confirmed by the January 14,2010 O'Brien letter and the January 30,2010 Sherman email. See supra Issue No.1, Tabs 39 and 42.

McElwee vetted his draft response with appropriate ENVY personnel and none ofthose individuals recognized an issue with the response. The response reflects more the expressed concern that Gundersen stay within the Legislature's mandate, than any intent to mislead him on these issues.

To the extent that the alleged misinformation is that ENVY did not reveal the storm water drains as "an underground piping system that carries radionuclides," the investigation found no evidence that McElwee thought ofthe storm drains as such a system. "Yard drains" were identified in the BPTIP Scope Table that had been provided NSA. Neither ENVY, NSA, or POP personnel considered these within the scope ofSection 3(a)(7). (See discussion in Issue No.5.)

Irwin ofVDH agreed that it would be a "stretch" "bordering on irresponsibility" to consider the stonn drains as one of the ENVY piping systems that carries radionucIides. Moreover, the presence ofradionuclides in the stonn drains had been reported publicly each year for at least the Jast ten years. ENVY also had disclosed information about radionuclides in storm drains in discovery in the DPS proceeding. See Tab 17 Site Contamination Matrix, Attachment A, NEC:EN.6-IK3, Map Locations A-I, A-2, A-3, One manhole in A-4, A-4, A-5, B-4, B-1, B~3, C-IOO, C-I 0 1, and C-l 04 (describing the results ofradionuclide sampling on site including in 113

I r

AITORNEY-CLIENT PRiVILEGE AITORNEY WORK PRODUCT various stonn drains) (ENVYHCOI804-5, 1807, 1814). Accordingly, the investigation did not find a motive to keep this information from Gundersen.

For the reasons above, the investigation did not substantiate that McElwee intentionally misled Gundersen in his August 13, 2009 response.

114

ATTORNEY-CliENTPRIVILEGE ATTORNEY WORK PRODUCT V.

Exhibits A.

List of Acronyms B.

Investigator Qualifications C.

ENVY Organizational Chart dated May 19,2009 D.

List ofCustodians ofElectronic Records E.

Search Terms for Electronic Records F'.

Request for Downs Rachlin Martin PLLC G.

List of Witnesses Interviewed 115

Exhibit A: List ofAcronyms AOG BPTIP BUP BWR CDBI CR CRA CSS CST DPS DRM ENOl ENVY FAC MLB NSA NSA Report PI&Ds POP PSB RFO SWS VPIRG VPSB VRCP VY VYNPC WRC Auxiliary Offgas Buried Pipe and Tank Inspection Program Buried Underground Piping Boiling Water Reactor Component Design Basis Inspection Condition Report Comprehensive Reliability Assessment Condensate Storage System Condensate Storage Tanks Department ofPublic Service Downs Rachlin Martin PLLC Entergy Nuclear Operations Inc.

Entergy Nuclear Vermont Yankee Flow Accelerated Corrosion Morgan Lewis & Bockius LLP Nuclear Safety Associates Reliability Assessment ofthe Vermont Yankee Nuclear Facility Piping & Instrument Diagrams Public Oversight Panel Public Service Board Refueling Outage Service Water System Vermont Public Interest Research Group Vermont Public Service Board Vermont Rules ofCivil Procedure Vermont Yankee Vermont Yankee Nuclear Power Corporation Wyndham Regional Commission DB1/6443135:5.1 A-I

Exhibit B: Investigator Qualifications Mark A. Srere, a partner in the law firm ofMorgan, Lewis & Bockius LLP (Morgan Lewis),

and a member ofthe Morgan Lewis Corporate Investigations practice group, has more than 22 years of legal experience, including extensive experience involving internal investigations in a variety ofcontexts and industries. He has handled multiple intemal investigations for energy companies and nuclear utilities, including investigations ofalleged inattentive security personnel at the Peach Bottom Atomic Power Station in 2007. He is an adjunct professor at Georgetown University Law Center; chairman ofthe Pro Bono Committee for the Morgan Lewis Washington, D.C. office; and serves on the Board ofTrustees for the Legal Aid Society and on the Board of Directors ofthe Washington Lawyers Committee for Civil Rights and Urban Affairs. His education includes a Juris Doctor degree from the University ofTexas School of Law and a Bachelor ofArts from Reed College.

Timothy P. Matthews, a partner in the nuclear energy practice group ofMorgan Lewis, represents utilities, industrial, and other licensees before the Nuclear Regulatory Commission (NRC), the Department ofLabar, and other regulatory agencies, as well as the federal courts. He advises clients on matters related to electric utility restructuring. new nuclear plants, wrongdoing investigations, discrimination allegations, regulatory compliance, and complex outageHrelated disputes, including proceedings in mediation, arbitration, and litigation before state and federal courts. Mr. Matthews played significant roles in the series ofcomplex litigation and arbitration following the Millstone and Davis-Besse outages. Mr. Matthews worked as a project manager with the Nuclear Management and Resources Council (NUMARC) in Washington, D.C. from 1991 to 1992 and served as congressional liaison with the Office ofthe Secretary ofthe Navy from 1989 to 1991. He previously served as a nuclear-trained officer in the United States Navy and served on nuclear-powered warships, and qualified as Chief Engineer. His education includes a Juris Doctor degree froin the George Washington University Law School and a Bachelor ofArts from the U.S. Naval Academy.

Edward S. Keefe, an associate in the Litigation Practice group ofMorgan, Lewis, and a member of the Morgan Lewis Corporate Investigations practice group, has more than 9 years of legal experience, including extensive experience involving internal investigations in a variety of contexts and industries. He has handled multiple internal investigations for major corporations, including a number of investigations for nuclear licensees. Prior to joining Morgan Lewis, he was a trial attomey for four years in the Honors Program ofthe United States Department of Justice. He also served as a Special Assistant United States Attorney prosecuting criminal matters in the District ofColumbia. His education includes a Juris Doctor degree from the University ofPennsylvania Law School and a Bachelor ofArts from the College ofthe Holy Cross.

Anna L. Vinson is an associate with the nuclear energy practice group ofMorgan Lewis. She has been in this position since September 2007. For various nuclear licensees, Ms. Vinson has participated nearly a dozen investigations. She has provided legal advice in licensing matters, compliance and enforcement matters, and in cases ofnuclear-related employee issues. Her education includes a Juris Doctor degree from Georgetown University Law Center and a Bachelor ofArts from Duke University.

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Exhibit D: List ofCustodians Searched Custodian Bailey, Gary Breite, Harry Bykov (or Bridges),

Kim Colomb, Michael Dreyfuss, John Glew, William Grace, Sheila Renner Guglielmino, Peter Hardy, Jeffery Johnson, Barclay T.

Le Francois, Mark Limberger, Wayne Malmquist, Nancy S.

Mannai,_ David Marshall, John H.

McElwee, David Metell, Henry M.

Meyer, Jeffrey ra-Robert A.

Brian Philippon, Michel Rademacher, Norman Rogers, James Skibniowsky, Stephen Stasolla, John Thayer, Jay Wierzbowski, George Affiliation Entergy Nuclear Vermont Yankee

("ENVY'1 ENVY (Formerly Entergy)

ENVY ENVY Enexus Downs Rachlin Martin, PLLC

("DRM")

RCM Technologies ENVY DRM ENVY RCM Technologies DRM ENVY DRM ENVY ENVY ENVY DRM ENVY ENVY ENVY ENVY ENVY ENVY Entergy Services, Inc.

ENVY Position Senior Engineer; Lead, Buried Piping Program Senior Engineer; Lead, Service Water System Former Associate General Counsel Site Vice President Director, Nuclear Safety Assurance Associate General Counsel OfCounsel Project Manager for CV A Response Manager, Chemistry Associate Supervisor, Code Pro~rams Contractor Director Manager, Licensing Director Senior State Regulatory Affairs Engineer Senior Project Manager Specialist, Licensing OfCounsel Engineering, Mechanical Systems Manager, O~erations Director, Engineering Manager, Design Engineering Senior Environmental Specialist, Special Effluent and Environmental Monitoring Engineer, Mechanical Systems Vice President ofOperations Manager, Programs and Components; VY Technical Lead in CVA Response D -1 DBII64431467 I

CUSTODIAN All Downs Rachlin &

Martin, PLLC

("DRM") personnel who were involved with the Entergy Nuclear Vermont Yankee ("ENVY*)

matter, including:

Sheila Renner Grace

• Barclay T.

Johnson

• Nancy S.

Malmquist John H.

Marshall

• Robert A.

Miller Exhibit E: Search Terms for Electronic Records Downs, Rachlin & Martin, PLLC SEARCH CRITERIA The following search criteria were applied to all DRM custodians:

For these These terms:

dates:

Jan. 12-27, underground 2009 piping (inclusive)

VPIRG 4-6 4.6 Apr. 15-May Colomb 31,2009 Thayer (inclusive) underground piping soil contamination radionuclides Jan.1-Dec.

["VPIRG" and ("4.6" or "4-6")]

31,2009 (inclusive) underground piping E - 1 DBII64431477.1

Exhibit E: Search Terms for Electronic Records CUSTODIAN Gary Bailey Harry Breite Entergy Nuclear Vermont Yankee TIME FRAME SEARCH CRrrERIA Apr. is-May Colomb Thayer 31,2009 May 19 -27, all emails 2009 Act 189 AOG Woyshner SBGT Stack sump BWoyshner@WSCinc.biz condensate RWHold CSS chemistry i

CST chem underground leak(s) buried testimony I

piping transcript I

radionuclides radioactive I

service water aarv.schweize--.=@wscinc.blz public risk Garv Schweizer risk ranking tritium action log Droblematic 2.9 Gunderson Mar. 1, 2008 262 Gaseous Dec. 31,2009 263 Larrv Hopkins errata hOD7782@aol.com soil resistivitv Jerrv Rainev Public Oversiaht Panel ierrv.rainev@.wscinc.biz POP Bruce Allshouse radioactivitv bruce.allshouse@.wscinc.biz soil Ted Nichols contaminated tnichols.emnemerav@.verizon.net contamination Jay Rosen VPIRG jrosen@opxconsultinQ.com discovery Sam McDonald sam.mcdonald@nuclearassociates.co "4-6" m

4.6 Tom Shannon radwaste tom.shannon3@.verizon.net Mar. 1, 2008-Act 189 Larrv Hooklns Dec. 31, 2009 Woyshner hop7782.aol.com Jerry Rainey BWoyshner@WSCinc.biz condensate ierrv.raineviBiwsclnc.biz CSS Bruce Allshouse CST bruce.allshouse@.wscinc.biz underoround Ted Nichols buried tnichols.emnemerov@verizon.net piDino Jay Rosen radionuclides irosen@opxconsultina.com service water Sam McDonald E-2 081164431477 1

Exhibit E: Search Terms for Electronic Records Entergy Nuclear Vermont Yankee CUSTODIAN TIME FRAME Apr. 15-May 31.2009 May 19 - 27, 2009 Kim Bykov Mar. 1, 2008 Dec. 31 f 2009 Mike Apr. is-May 31,2009 Colomb May 19-27, 2009 Mar. 1, 2008 -

Dec. 31, 2009 SEARCH CRITERIA sam.mcdonald@nuclearassociates.co public risk m

risk rankina Tom Shannon action loa tom.shannon3{Qlverizon.net Garv Schweizer Qarv.schweizer@wscinc.biz Thayer Colomb all emai/s 2.9 chemistrv Wovshner chem leak(s)

BWovshner{QlWSCinc.biz underClround testimony buried transcriot pipina radioactive radionuclides Gary Schweizer 262 Qarv.schwelzer@Wscinc.biz 263 tritium errata problematic soil resistivity Larry Hopkins Public OversiQht Panel hoo7782t6>-aol.com POP Jerrv Rainev rad ioactivitv ierry.rainev@wscinc.biz soil Bruce Allshouse contaminated bruce.allshous~wscinc.biz contamination Ted Nichols VPIRG tnichols.emnemeravt6>-verizon.net discoverv Jav Rosen "4-6" irosent6>-ooxconsulting.com 4.6 Sam McDonald sam.mcdonald@nuclearassociates.co radwaste m

AOG Tom Shannon SBGT tom.shannon3lalverizon.net Stack sump RWHold Thayer all emails 2.9 chemistrv Wovshner chern leak(s BWovshnert6>-WSCinc.bii) underaround testimony buried transcriDt oioina radioactive radionuclides gary.schweizer{iilwscinc.biz 262 tritium E-3 DB](64431477 I

Exhibit E: Search Terms for Electronic Records lintergy Nuclear Vermont Yankee CUSTODIAN

'"IMIi FRAME SEARCH CRITERIA 263 errata soil resistivity Public Oversight Panel POP radioactivity soil contaminated contamination VPIRG discovery "4-6" 4.6 radwaste AOG SBGT Stack sumo RWHold Apr. 15 - May John Thayer 31 2009 Dreyfuss Jan. 12-27, 2009 May 19-27, 2009 Mar. 1, 2008 -

Act 189 Dec.31,2009 Wovshner BWoyshner@WSCinc.

biz condensate CSS CST underaround buried piping radionuclides service water Dublic risk risk ranking action IOQ 2.9 262 263 errata soil resistivity Public Oversight Panel POP problematic Gunderson Gaseous Larrv Hopkins hop7782@aol.com Jerry Rainey jerrv.raineV@wscinc.biz Bruce Allshouse bruce.alfshouse@w$cinc.biz Ted Nichols tnichols.emnemer(:JV{alverizon.net JavRosen jrosen@oDxconsultina.com Sam McDonald sam.mcdonald@nuclearassociates.co m

Tom Shannon tom.shannon3@verizon.net Gary Schweizer Colomb all emails Stack sump RWHold chemistry chem leakJs) testimony transcript radioactive Qarv.schweizer@wscinc.biz SGTB tritium problematic Gunderson Gaseous Larry Hopkins hop7782@aol.com Jerrv Rainev jerrY. rainev@wscinc.biz Bruce Allshouse bruce.allshouse@wscinc.biz Ted Nichols E-4 OBI/64431471 1

Exhibit E: Search Terms for Electronic Records

!nttirgy Nuclear Vermont Yankee CUSTODIAN TIME FRAME Apr. 15 - May 31,2009 Bill Glew Mar. 1, 2008 -

Dec. 31,2009 Peter Jan. 12-27, Guglielmino 2009 May 19 -27, 2009 Apr. is. May 31,2009 Mar. 1, 2008 -

Dec. 31, 2009 SEARCH CRITERIA radioactivity tnichols.emnemerQV@verizon.net soil Jay Rosen contaminated irosen@oDxconsultina.com contamination Sam McDonald VPIRG radwaste discovery Tom Shannon "4_6" tom.shannon3@verizon.net 4.6 Gary Schweizer sam.mcdonald@nuciearassociates.com Thayer VPIRG discovery "4-6" 4.6 262 radionuclides radwaste underaround buried piping AOG SBGT Thayer Act 189 Woyshner radwaste condensate CSS CST

• underground buried piping radionuclides service water public risk risk rankina action log 2.9 262 263 Colomb chemistry chem leak(S) testimony transcript radioactive soil contaminated contamination RWHold StacksumD tritium problematic aI/ amaits Colomb "4-6" 4.6 BWovshner@WSCinc.biz AOG SBGT Stack sump RWHold chemistry chem leak(s) testimony transcriDt radioactive tritium problematic Larrv Hookins hOD7782@aol.com E-S DBII6443147U

I Exhibit E: Search Terms for Electronic Records Entetgy Nuclear Vermont Yankee CUSTODIAN TIME FRAME May 19-27, 2009 Jeff Hardy Mar. 1, 2008 Dec. 31,2009 May 19 - 27, Mark 2009 LeFrancois Apr. 15-May 31,2009 Mar. 1 J 2008 -

Dec. 31,2009 DB1I64431477, I errata soil resistivity Public Oversight Panel POP radioactivitY soil contaminated contamination VPIRG discovery Garv Schweizer Tom Shannon Act 189 Wovshner BWoyshner@WSCinc.

biz condensate CSS CST underground buried piping radionuclides service water public risk risk ranking action log 2.9 262 263 errata soil resistivity Public OverSight Panel Thayer Act 189 Woyshner leak(s) condensate CSS CST underground E-6 SEARCH CRITERIA gary.schweizer@wscinc.biz all emails Colomb chemistrV chem BWovshnelt6iWSCinc.biz testimony transcrict radioactive tritium Jerry RaineY I

ierrv.rainev@wscinc.biz i

Bruce Allshouse bruce.allshouse@wscinc.biz Ted Nichols tnichols.emnemerav@verizon.net Jav Rosen irosen@oDxconsultina.com Sam McDonald sam.mcdonald@nuclearassociates.com aary.schweizer@wscinc.biz tom.shannon3@verizon.net all emaHs POP radioactivity soil contaminated contamination Larrv Hookins hoc7782@aol.com Jerrv Rainey ierry.rainev@wscinc.biz Bruce Allshouse bruce.aUshouse@lwscinc.biz Ted Nichols tnichols.emnemeroy@verizon.net I

Jay Rosen i

irosen@opxconsultina.com 1

Sam McDonald i

sam.mcdonald~nuclearassociates.com Tom Shannon tom.shannon3verizon.net Garv Schweizer

Exhibit E: Search Terms for Electronic Records Entergy Nqclear Vermont Yankee

-c' c

CUSTODIAN TIME FRAME SEARCH CRITE,RIA:

buried problematic pipin!:!

Gunderson radionuclides Gaseous service water larry Hopkins public risk hOD7782tmaol. com risk rankinQ Jerrv Rainev action lo!:!

ierry.rainey@wscinc.biz 2.9 Bruce Allshouse 262 bruce.allshousetm..wscinc.biz 263 Ted Nichols errata tnichols.emnemeravtmverizon.net soil resistivity Jay Rosen Public Oversi(lht Panel irosen@lopxconsultinQ.com POP Sam McDonald radioactivity sam.mcdonaldtmnuclearassociates.com soil Tom Shannon contaminated tom.shannon3tm..verizon.net contamination Gary Schweizer VPIRG aarv.schweizertmwscinc. biz discovery AOG "4-6" SBGT 4.6 Stack sump radwaste RWHold Wayne May 19-27, 2009 Limberger all amaits Jan. 12-27, 2009 Apr. 15-May Thayer Colomb 31,2009 Mar. 1, 2008-Act 189 contamination Dec. 31, 2009 Woyshner testimonY BWovshner@WSCinc.biz transcript condensate chemistry CSS chem CST VPIRG underground Garv Schweizer buried aarv.schweizertmwsclnc.biz pipinQ leak(s) radionuclides tritium service water problematic public risk AOG risk ranking SBGT action 10(1 Stack sumo i

2.9 RW Hold 262 Larry Hopkins 263 hop 7782cl7laol.com errata Jerrv Rainev E-7 081164431477.1

Exhibit E: Search Terms for Electronic Records Entergy Nuclear. Vermont Yankee CUSTODIAN TIME FRAME May 19.27, 2009 Apr. 15-May 31,2009 Dave Mannai Mar. 1, 2008 Dec.31,2009 Jan. 12 - 27, Dave 2009 McElwee May 19 - 27, 2009 Apr. 15-May 31,2009 Mar. 1, 2008 -

Dec. 31, 2009 SEARCH CRrrERIA soil resistivity jerry.rainey@wscinc.biz Public Oversight Panel Bruce Allshouse POP bruce.allshouse@wsclnc.biz radioactivity Ted Nichols soil tnichols.emnemerQyl6lverizon.net contaminated Jay Rosen Tom Shannon jrosen@opxconsulting.com tom.shannon3161verizon.net Sam McDonald sam.mcdonald@nuclearassociates.com aI/ emaHs Thayer Colomb testimony VPIRG transcript leak(s) radionuclides tritium radioactive problematic radwaste AOG underground SBGT buried Stack sump pipinQ RWHold chemistry soil chem contaminated contamination all amails Thayer Colomb Act 189 tritium Woyshner problematic BWoyshner@WSCinc.biz Gunderson condensate Gaseous CSS Buchanan CST tombuch@aol.com underground Larry Hopkins buried hop7782161aol.com piping Jerry Rainey radion uclides ierry.rainevl6lwscinc.biz service water Bruce Allshouse public risk bruce.allshouse@wscinc.biz risk ranking Ted Nichols action log tnichols.emnemerQv@verizon.net 2.9 Jay Rosen 262 jrosen@opxconsulting.com 263 Sam McDonald E*g DB1I64431477 I

Exhibit E: Search Terms for Electronic Records Entergy Nuclear Vermont Yankee CUSTODIAN TIME FRAME SEARCH CRITERIA errata sam.mcdonald@nuclearassociates

.com soil resistivity Tom Shannon Public OversiQht Panel tom.shannon3verizon.net i

I I I

POP radioactivity soil contaminated contamination VPIRG Gary Schweizer Qary.schweizer@wscinc.biz radwaste AOG SBGT Stack sump discovery RWHold "4-6" chemistry 4.6 chem transcript leak(s) radioactive testimony Mike Metelf Jan. 12 2009 May 19 27,

27.

all emaits 2009 Apr. is -May 31.2009 Thayer Colomb Mar. 1, 2008 Act 189 tritium Dec. 31, 2009 Woyshner Droblematic BWoyshner@WSCinc.biz Larrv Hopkins condensate hoD7782@aol.com CSS Jerry Rainey CST jerry.raim!y@wscinc.biz underground Bruce Allshouse buried bruce.allshouse<a!wscinc.biz DiDinQ Ted Nichols radionuclides tnichols.emnemeravverizon.net service water Jav Rosen public risk jrosert@opxconsultinq.com risk rankinq Sam McDonald action log sam.mcdonald@nuclearassociates

.com 2.9 Tom Shannon 262 tom.shannon3@verizon.net 263 Gary Schweizer errata Qary.schweizer<a!wscinc.biz soil resistivity radwaste Public Oversiqht Panel AOG POP SBGT radioactivity Stack sump soil RWHold contaminated chemistry contamination chem E-9 OBII64431477 I

Exhibit E: Search Terms for Electronic Records Entergy Nuclear Vermont Yankee CUSTODIAN TIMEFRAME~

SEARCHCRrrERIA VPIRG leak(s) discovery testimony "4-6" transcript 4.6 radioactive May 19-27, all emails 2009 Apr. 15-May Thayer Colomb 31,2009 testimony leakes) transcript tritium radionuclides problematic Jeff Meyer radioactive AOG radwaste SBGT Mar. 1, 2008 underground Stack sump Dec.31,2009 buried RWHold piping soil chemistry contaminated chern contamination VPIRG Act 189 contaminated We>yshner contamination BWoyshner@WSCinc.biz Larry Hopkins condensate hop7782@aol.com CSS Jerry Rainey CST jerry.rainey@wscinc.biz underground Bruce Allshouse buried bruce.allshouse@wscinc.biz piping Ted Nichols radionuclides tnichols.emnemergy@verizon.net Brian Mar. 1, 2008 -

service water Jay Rosen Naeck Dec. 31,2009 public risk jrosen@opxconsulting.com risk ranking Sam McDonald sam.mcdonald@nuclearassociates action log

.com 2.9 Tom Shannon 262 tom.shannon3@verizon.net 263 Gary Schweizer errata gary.schweizer@wscinC.biz soil resistivity POP Public Oversight Panel radioactivity soil Mar. 1, 2008 -

Act 189 Ted Nichols Mike Dec.31,2009 Woyshner tnicho/s.emnemerQv@verizon.net Phillipon BWoyshner@WSCinc.biz Jay Rosen condensate jrosen@opxconsulting.com CSS Sam McDonald sam.mcdonald@nuclearassociates CST

.com E - 10 DBI/64431477.1

Exhibit E: Search Terms for Electronic Records Entergy Nuclear Vermont Yankee CUSTODIAN TIME FRAME Norm Mar. 1, 2008 -

Rademacher Dec. 31,2009 Jan. 12 - 27, 2009 Jim Rogers Mar. 1, 2008 -

Dec. 31, 2009 Steve May 19 -27, Skibniowsky 2009 Mar. 1, 2008 -

Dec. 31,2009 SEARCH CRITERIA underground buried piping radionuclides service water public risk risk ranking action IOQ Bruce Allshouse Act 189 Woyshner BWoyshner@WSCinc.biz condensate CSS CST underaround buried piping radio nuclides service water public risk risk ranking action log 2.9 262 263 errata soil resistivity POP Tom Shannon tom.shannon3@verizon.net Gary Schweizer gary.schweizer@wscinc.biz Larry Hopkins hop7782(Olaol.com Jerry Rainev ierry.rainey@wscinc.biz bruce.allshouse@wscinc.biz contaminated contamination Larrv Hockins hop7782lBlaol.com Jerry Rainey ierry.rainey@wscinc.biz Bruce Allshouse bruce.allshouse@wscinc.biz Ted Nichols tnichols. emnemeravlBlverizon.net Jav Rosen jrosen@opxconsulting.com Sam McDonald sam.mcdonald@nuclearassociates

.com Tom Shannon tom. shannon3(Olverizon. net Garv Schweizer Qary.schweizer@wscinc.biz radioactivitY soil Public OversiQht Panel VPIRG discovery "4-6" 4.6 262 radionuclldes radwaste underground Act 189 Woyshner BWoyshner@WSCinc.biz condensate a/l emails buried all emails piping AOG SBGT Stack sumo RW Hold chemistrv chem leak(s) contaminated contamination Gunderson Gaseous E-ll OB1I6443 1477.1

Exhibit E: Search Terms for Electronic Records Enter"y Nuclear Vermont Yankee CUSTODIAN TIME FRAME SEARCH CRITERIA CSS CST undenlround buried piping radionuclides service water public risk risk ranking action log 2.9 262 263 errata soil resistivity Public OversiQht Panel POP Act 189 Woyshner BWoyshner@WSCinc.biz condensate CSS CST John Mar. 1, 2008 -

underground Dec. 31,2009 buried Stasolla piping radionuclides service water public risk risk ranking action log Larry Hopkins May 19 -27, Jay Thayer 2009 Mar. 1, 2008-2.9 Dec. 31, 2009 Woyshner BWoyshner@WSCinc.biz underground buried piping radionuclides 262 263 errata soil reSistivity Larry Hopkins hop7782@aol.com Jerry Rainey jerry.rainey@wscinc.biz Bruce Allshouse bruce.allshouse@wscinc.biz Ted Nichols tnichols.emnemerQy@verizon.net Jay Rosen jrosen@opxconsulting.com Sam McDonald sam.mcdonald@nucJearassociates

.com Tom Shannon tom.shannon3@verizon.net Gary Schweizer gary.schweizer@wscinc.biz radioactivity soil Ted Nichols tnichols.emnemergy@verizon.net Jay Rosen irosen@opxconsulting.com Sam McDonald sam.mcdonald@nuclearassociates

.com Tom Shannon tom.shannon3@verizon.net Gary Schweizer gary.schweizer@wscinc.biz Jerry Rainey jerry.rainey@WScinc.biz Bruce Allshouse bruce.al/shouse@wscinc.biz hop7782@aol.com all emails chern leak(s) testimony transcript radioactive Colomb (April 15 to May 31, 2009) tritium problematic Larry Hopkins hop7782@aol.com Jerry Rainey E - 12 DB116443 1 477. 1

I Exhibit E: Search Terms for Electronic Records Entergy Nuclear Vermont Yankee I

CUSTODIAN TIME FRAME SEARCH CRITERIA*

i Public Oversight Panel ierrv.ralnev@wscinc.biz POP Bruce Allshouse radioactivity bruce.allshouse@wscinc.biz 5011 Ted Nichols contaminated tnichols.emnemerav@verizon.net contamination Jav Rosen VPIRG irosen@opxconsultina.com discovery Sam McDonald sam.mcdonald@nuclearassociates "4-6"

.com 4.6 Tom Shannon radwaste tom.shannon3@verizon.net AOG Garv Schweizer SBGT aarv. schweizer@wscinc.biz Stack sump chemistrY RW Hold Act 189 soil Wovshner contaminated BWovshner@WSCinc.biz contamination condensate VPIRG CSS discoverY CST "4-6" underground 4.6 buried radwaste pipinQ AOG radionuclides SBGT service water Stack sump Dublic risk RWHold risk ranking chemistrY George Mar. 1, 2008 action log chem Weirzbowskl Dec. 31,2009 2.9 leak(s)

I.

262 Larrv Hookins 263 hOD7782lCllaoLcom errata JerrY Rainev soil resistivity ierrv.rainev@wscinc.biz Public Oversight Panel Bruce Allshouse POP bruce.altshouselCllwscinc.biz t

rad ioactivity Ted Nichols Gary Schweizer tnichols.emnemerav@verizon.net gary.schweizer@wsclnc.biz Jay Rosen Tom Shannon irosenlCllopxconsultina.com tom.shannon3@verizon.net Sam McDonald sam.mcdonald@nuclearassociates.com E-13 DB 1164431477.1

Exhibit F: Request for Downs Rachlin Martin PLLC ENVY Document Searches Downs Rachlin Martin PLLC A.

Hard-Copy Documents: Please search all offices, files, folders, file cabinets, record rooms and other locations containing hard-copy documents for all documents in your possession related to your representation ofEntergy Nuclear Vermont Yankee in connection with the assessment of"[a]n underground piping system that carries radionuclides" in the Comprehensive Vertical Audit and Reliability Assessment by Nuclear Safety Associates or as that system was raised in connection with Vermont Public Service Board proceeding Docket No. 7440 (the "relicensing" proceeding), including any communication regarding discovery responses or public testimony prepared or given in that proceeding.

B.

Electronic Documents: Please search all e-mail, including archived e-mail, electronic files/documents, fileshare systems, computer servers, and other electronic media storage in use at Downs Rachlin Martin ("DRM") for documents related to the subject matter described in Section A. or that contain the below-listed search terms, for the custodians listed in Section C (and any associated legal assistants, support staff: or paralegals). All searches should be restricted to the timeframe ofMarch 1,2008 to present.

In addition, please provide the e-mail records ofthe below-listed custodians for all e-mails (and any associated legal assistants, support staff: or paralegals) pertaining to Entergy Nuclear Vermont Yankee from January 19-27,2009 (inclusive) and May 19-27,2009 (inclusive). Please provide all electronic search results to Morgan, Lewis & Bockius LLP in the native format.

Please also provide a memorandum describing the steps taken to complete a comprehensive search for electronic and hard-copy documents.

C.

Custodians:

Robert A. Miller IohnR. Marshall Barclay T. Johnson Nancy S. Malmquist Sheila Renner Grace F-l

Exhibit F: Request for Downs Rachlin Martin PLLC D.

Search Terms:

• LeFrancois

[-

• Act 189

• condensate

• CSS or Condensate Storage System

• CST or Condensate Storage Tank

• underground

• buried

• piping

• radionuclides

• service water

• public risk

• risk ranking

• action log 2.9

• 262

• 263

• errata

• soil resistivity

• POP or Public Oversight Panel

• radioactivity

• soil

• contaminated

• contamination

• VPIRG or Vennont Public Interest Research Group

• discovery

• 4-6

• 4.6

• chemistry

• chem

• leak(s)

• testimony

• transcript

• radioactive

• RW or radwaste

• tritium

• problematic

• AOG or Advanced Offgas System

• SBGT or Standby Gas Treatment

• Stack sump

• gaseous

• NSA or Nuclear Safety Associates

• Metell

• McElwee

• Bailey

• Dreyfuss

• Guglielmino

• Stasolla

• Philippon

• Drouin

• Callaghan

• Wierzbowski

• Naeck

• Hardy

• Skibniowsky

• Limberger

• Rademacher

• Breite

• Colomb

• Thayer

• Bycov

• Glew

• Rogers

• Mannai

• Meyer

• Buchanan

• Gunderson

• Woyshner

• Hockreiter

• Bmdford

• O'Brien

• Rainey

• Hopkins

• Allshouse

• Nichols

• Rosen

• McDonald

• Shannon

• Schweizer

• Hinkley

• Pyrih

• dmcelwe@entergy.com kbridg3@entergy.com kim.bykov@ca.com

• jroger6@entergy.com pgug190@entergy.com lunetell@entergy.com F-2

Exhibit F: Request for Downs Rachlin Martin PLLC

• william.glew@enexusenergy.com

• jthayer@entergy.com mcolomb@entergy.com

• jdreyfu@entergy.com

• nradema@entergy.com gbaile3@entergy.com

• wlimber@entergy.com mlefran@entergy.com gwierzb@entergy.com dmannai@entergy.com

• bnaeck@entergy.com

• jmeyer5@entergy.com

• jhardy@entergy.com sskibni@entergy.com

• jstasol@entergy.com

• jcallag@entergy.com

• tdrouin@entergy.com

• mphi1il@entergy.com hbreite@entergy.com tombuch@aol.com uldis.vanags@State.vt.us

• sailchamplain@gmaiI.com

• hop7782@aol.com

• BWoyshner@WSCinc.biz tom.shannon3@Verizon.net bill. woyshner@wscinc.biz

• jerry.rainey@wscinc.biz

• bruce.allshouse@wscinc.biz tnichols.emnenergy@Verizon.net

• jrosen@opxconsulting.com sam.mcdonald@nuclearassociates.co m

gary.schweizer@wsc.inc.biz

• bruce.hinkley@baa-inc.com lpyrih@aol.com F-3

exhibit G: List of Witnesses Interviewed

'i Name' :'

Affiliation.' ~

PositioD:

i*

,.i Entergy Nuclear Vermont Yankee Bailey, Gary

[("ENVY")

Senior Engineer' Lead, Buried Piping Program Breite,H~

ENVY Senior Engineer; Lead, Service Water System Cloutier, Bill TI..G Services, Inc.

Manager, Decommissioning Colomb, Mike ENVY Site Vice President DeWald, Lynn ENVY Special Effiuent and Environmental Monitoring Dreyfuss, John ENVY Director, Nuclear Safety Assurance Glew, Bill Enexus Associate General Counsel Grace Sheila Downs Rachlin & Martin ("DRM")

Of Counsel Guglielmino, Peter RCM Technologies Proiect Manager for CVA ResJ)Onse Hardy, Jeffery ENVY Manager Chemistry Johnson. Barclay DRM Associate Lefrancois. Mark ENVY Supervisor Code ProgramS Limberger, Wayne RCM Techno\\ol'ties Contractor MalmQuist Nancy DRM Director Mannai Dave ENVY Manager Licensing Marshall, John DRM Director McElwee, Dave ENVY Senior State Regulatory Affairs Engineer MetelI, Mike ENVY Senior Project Manager Meyer, Jeffrey ENVY Specialist, Licensing Miller, Bob DRM OfCounsel Naeck, Brian ENVY Engineering, Mechanical Systems Phlllipon, Mike ENVY Manager. Operations Rademacher Nonn ENVY Dirctor Enginering Rice Bill ENVY Flow Accelerated Corrosion Program Engineer Rogers, Jim ENVY Manager, Design Engineering Senior Environmental Specialist, Special Effiuent and Skibniows!cy. Steve ENVY Environmental Monitoring Stasolla, John ENVY Engineering, Mechanical Systems Sullivan, Ted Fonner Site Vice President

'Thayer,Jay EntergyServices Inc.

Vice President ofOperations Manager, Programs & Components; VY Technical Wierzbowski, George ENVY Lead in CRA Response G-1