ML20079R305
| ML20079R305 | |
| Person / Time | |
|---|---|
| Site: | Midland, 05000000 |
| Issue date: | 07/15/1983 |
| From: | Falahee J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| To: | James Keppler NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| Shared Package | |
| ML20079E080 | List: |
| References | |
| FOIA-83-579 NUDOCS 8402020159 | |
| Download: ML20079R305 (31) | |
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July 15, 1983 MA' } fad 51.0 t t
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Mr. Ja=es G. Keppler N
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I triLt 4 m, Reg,on II.
A 799 Roosevel: Road Glen Ellyn, IL 60137
Dear Mr. Keppler:
As I advised you late yesterday afternocn by telephone, the Dow Che=ical Co=pany notified Consu=ers Power Cc=pany that it was exercising "1:s right of ter=ination, ef fec:ive i=cediately, by reascn of Consu=ers Power's inability to =ee: :he ec==ercial stea= operation date as defined in Section 9(3)1 of G C General Agree =en:."
I first learned of this action by Dow Che=ical as a rw 1: of a :elephone call a: approxi=ately 4:30 PM yesterday frc= Mr. Wayne M. Hancock, General Counsel of Deu Che=ical Cc=pany.
Mr. Hancock advised =e that Dov's written notice of ter=ination and a ecpy of the co= plaint filed
- against Consu=ers. ?cuer Co pany 1: the Midland Circuit Court had been hand-delivered to Mr. James W. Cook's office'in Jackson a: 4:00 PM yesterday.
Mr. Cook was at the Midland Plant si:e.
I a= enclosing copies of the notice of ter=inatien and the Complain: for Declaratory Judg=ent.
In su==ary, the Co= plain; for Declaratory Judg=ent asked that the General Agree =ent be cancelled and all re=aining obligations of Dev under the General Agree =en be discharged.
In addition, Dow is seeking da= ages frc= Const=ers Power Cc=pany in the a=ount of S60,000,000.
Obviously in the sher: time which has been available, Consu=ers Power Cc=pany i
has not fully evaluated the i= pact of the Dow Che=ical Cc=pany's notice of ter=inatie= and declaratory judg=ent action. We do not agree with the allega-tions contained in the declaratory judg=en: co= plaint and vill deny the sa=e.
As to ccnstruction of thc. Plant, we are continuing on the schedule we have previously announced.
I would be pleased to respond to any further questions you =ay have regarding this situation.
Yours very truly, Q4 1
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ZACK83-579 PDR CC:
Harold R. Denton JDSelby JWCook
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DOW CHEMICAL U.S.A.
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July 14, 1983 Mr. James W.
Cook Vice President Projects, Engineering and Construcuien Consumers Power Company 1945 West Parnell Road Jackson, Michigan 49201
Dear Mr. Cook:
Pursuant to Section 9 (E) cf the June 21, 1975, General Agreement between Consumers Power and The Dow Chemical Company, notice is hereby given that Dow exercises its right of termination, effective immediately, by reason of Consumers Power's inability to meet the cc=nercial-steam operation date as defined in Section 9(3)1 ci the General Agreement.
Thir notice of termination is given with full reservation of Dow's legal rights, including the attached Complaint for Declaratory Judgment And Other Relief which Dow will be filing today in the Circuit Court for the County of Midland, Michigan.
Should Consumers Power wish to discuss this notice or the matters raised in Dow's Complaint, Dow stands willing to do so.
Sincerely, 7.,
M_. k 4
R. A.
Gaska Manager Specialty Pr "ucts Manufacturing, Energy & Ut lities 47 Building Attachment caj m aciq w
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Plaintiff,
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CCM?LAINT TCR OICLARATCRY v.
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Ot*3CMINT AND C ?J.R EI*.IIT
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Tile No. 63 -CK-
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CCNSUMIRS POVIA CCMPANY, Defendant.
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Herbert H. Edwards (P13112) and Kirkland & Illis Attorneys for Plaintiff A.
Int:cducticn 1.
By this cc= plaint and based up:n the facts alleged herein and based upon its inf :=atica and belief, plaintiff, The Ocv Chenical C =ptny, seeks a declarat: y jud;-
=ent declaring its legal rights and chligations with respect to the June 21, 1978 General Agreement fs: the sale of stean to Dow by defendant, censumers Power C pany, fr:m its Midland Nuclear Facility currently under constructi n.
Specifically, Dew seeks a declaration that -all ebligatiens of Dev under the General Agree =ent are et= celled and discharged because of Censuners Power's fraudulent nisrepresentations and non-disclosures Censu=ers Power's =aterial breaches of its cen-tractual and fiduciary obligations to Ocw, and Censuners Power's inability to complete the Midland Nuclear Tacility within any rea'sonable time e,: cost. Alternatively, if Dov's cbligaticas are not deeme'd to be c==pletely cancelled and discharged, Dow seeks a declaration that any termination pay =ent required under the 1978 General A; eement must be substantially reduced by virtue of Consumers Power's wrongful conduct. Dow e-
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fu' ther seeks a declaration that it is owed da= ages arising f := Dow's expenditures of =cre than 560 =illien in relian:e en consu=ers Power's fraudulent =isrepresentations and non-disclosures as well as such further and additicnal relief as the Court dee=s just and p cper.
B.
The Parties
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2.
The Dow the:kcal Cc=pany ("Dow") is a Delava:e cc peration' headquartered at 2030 Dow Center in Midland, Michigan.
Dow is a diversified international manufacturer ef a wide range of chemicals and other products, including industrial chemicals and raw materials, specialty and agrievitural chemicals, and censumer products. Since Dow's f=unding in 1897, one of i,ts principal manufacturing ec=plexes, currently referred te as the Michigan Division, has also been 1ccated in Midland. Dow currently =anufactures app cxi=ately 100 =ajor products at its Midland facilities and e. ploys app;cxi=ately 7,800 pecple in the Midiand, Michigar, a:ea.
3.
Censumers Fever C pany ("Censumers Power") is a Michigan corporatic whose principal business is the sale of electricity and natural gas to a service area comprising mos't of the State of Michigan, including Midland. C=nsumers Power is the largest utility in Michigan and its revenues in 1952 exceeded $2.7 billion.
C.
Jurisdictien and Venue 4.
Personal and subject matter jurisdiction of this Court is founded== Sections 600.601, 600.605, and 600.711 of the Michigan Cc= piled Laws and the Michigan General Court Rules of 1963. An actual cen*::versy exists between Dow and Censu=ers Power and Censu=ers Power is a Michigan corporation carrying on a continuous and systematic part of its general business in Michigan..
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Venue ;; perly lies tn the Circuit Court for the Ccunty of Midland 0..de: Section 6CO.15:1(a) of the Michigan Cc= piled Laws because Censumers ?:ver c:nducts business and
=aintains a place of business in Midland County.
D.
The ? for Centracts Between Dev And Censu.mers Power 6.
In the operatica cf its Midland, F.ichigan manu-f acturing f acilities, Dew requ. ires a c:ntinuous, reliable an'd ecenc=ical su ply of p ccess stea=.
At all relevant times, Dov's Michigan Division has owned Lnd operated its own power-houses to supply its steam needs.
7.
Beginning in 1966, Dow and Consemers ?cwer engaged in discussiens about the pe:sibility of cens==ers ?cwer
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supplying steam to Low f := a nuclear p1 tat it was p;;.;_ing 'to construct. As p cposed, the Midland Nuclear Pacility would cnsiskoftwonuclearstet= supply syste=s, one of which (Unit
- 1) was designated to supply steam te Dow.
As an inducement to Dow to discontinue its own p. eduction of stea= t=d t: rely,in the future en steam f := censumers ?:ver, Censumers ?:wer indicated to Dew that the Midland Nuclear Pacility would be capable of producing 4,050,000 pounds of stet: per hour en a centinuous, ecenc=ical, and reliable basis as required b; D w.
B.
At all relevant times, Censu=ers ?cuer held itself cut to Dow as capable of c:nstructing the Miditnd Nuclear Pacility in a verkmanlike, saft End licensable =anner, that such construction would proceed without undue delay, 'a'nd that Consumers ?cwer would undertake the p cjern without incur-ring unreascnable c ir. prudent expenditures. Consu=ers ?cwer also advised Dow,.that 3echtel ?cwer Cc peration ("Sechtel")
would be the architect-engineer and c nstruction =anager for the project. On c: about Dece:her 13, 1967, Consumers ?cwer 3-w.
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and-Dov executed an initial Genera' Agree =a.: under "hi:h Cens=e:s Power agreed to' supply steam to Dow on ::=pletion of the Midland Nuclear Facility (the "1967 Centract").
9.
Under the 1967 CenJact and at all times since, Consumers Tower has retained s=le responsibility for the design, construction, cperation and =aintenance of the Midland Nuclear Tacility. Dow h.as no righf.}c,i ownership, centrol or direction over the plant and Cens=ers Power has rese: sed to itself the exclusive right to =ake changes in the concept, de;igs, c:n-struction and cperatien of the pla. at any time and to whatever extent it dee=s desirable'.
10.
Because of censu=ers Power's co=plete control over and superior knowled: e of the design and construction 'of the plant, Dow has placed its co=plete faith, ::ust a=d c:nfi-dence~in Const=ers ?:ver. Because of the c =plete trust and c:nfidence which Dew has placed in Censumers Power asd because of the exclusive cent:cl exe::ised by censu=ers ?cwer ever all phases of the project, C=nsu=ers ?:ver has occupied a fiducia:7 relationship to Dow, in additics to its other cbligations under the parties' agreements.
In recognition of Cc=sumers' fiduciary ebligations, at all relevant times, censu=*ers has had an express centractual cbligation to keep Dow fully informed of all =aterial fac_s that veuld significantly affect the cost of stea= to Dow, including projected cost and scheduling inf :=atics.
11.
Pursuant to the 1967 Centract, Dow and C hsumers Power entered into a separate centract en January 30, 1974, governing the calculation of Dov's steam cost (.he "1974 steam Centract"). Under the 1967 and 1974 agreement, relying on Censumers Power's cost estimates, the parties agreed that upon ce=pletien of the Midland Nuclear Tacility, the cost c f steam to Dow would be based en that portion of the total plant design 4
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and constructi== c=sts dev ted to the facil: ties'for ge erati ;
and delivering stet = to Dow.
Dhis pertien of costs is reft::ed to in the c: tracts as the Allocated Stet = Invest =ent.
Under the centract for=ula. In:: cases in the cost of the plant and delays in the plant's c==pletien increase the cost of steam to Dow.
12.
In'.1967 C=bsn=ersPower,esti=atedthatthe Midland Nu= lear Ta:ility would be ce=pleted prior to 1975 at a cost of $256 =111icn. After 1967, the Midland Nuclear Facility was subject to centinuing scheduling delays and cost increases such that by Septa =ber 1976, Censu=ers Power was predicting that it would c==plete both units by March 1982 at a total p;cject cost of $1.67 billion.
I.
Dhe 1978 General Aeree.ent 13.
As a result of these schedule slippages and :st increases and of disputes ever the continued validity of the then existing centracts, Dow 'and Censu=ers ?cwer underteck late in 1977 the negotiation cf an entirely new agree =ent.
A funda-mental c=ncern to Dow during these negotiaticas was to chtain fren C=nsu=ers ? aver a fir = date by which Cens==ers P=wer wauld complete the plant.
Dow's need for such a date ste==ed in large part from the continuing adverse effect en Dew's Michigan Divisien of the uncertainty as to when and at what cost the Midland Nuclear Facility would be c:=pleted. Dhis uncer{ainty had had substantial adverse effects en the Michigan Division by preventing Dow fre= =aking leng-range plans regarding th,e products to be manuf actured at Dov's Midland facilities, Michigan Division employmen,t icvels, and capital projects, causing a reduction in Michigan Division operations.
14.
Because of these concerns, Dow =ade it kneun to Consu=ers Power fron the start of the negotiatiens that it was of critical importance to Dow that Censumers Power =ake full e
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y disclosure of accurate, reliable and up-to-date ' cost and schedule infer =ation.
Turther=cre, if Censuners Power were unable to ce=plete the Midland Nuclear Tac'ility by a firm da e, Dow vanted the express right to terminate any obligatiens to purchase steam.
In the course of the negotiations which began in 1977 and concluded in June of 1978, the parties therefore agreed that all pric: agreekents be cancelled and that a new General Agreement be executed.
15.
On er about June 21, 1978, Dow and Censumers Power entered into ty.e General Agreement, at ached hereto as Exhibit A (the " General Agree =ent").
Under the General Agree-ment, Censur'rs Power undertook to supply up to 4,050,000 nillien pounds cf process steam per hour :: Dow upon ce=pletic:
of}1eMidlandNuclearTacility. The General Agree =ent further provided that the cost to Dow of the stet = would be based on the Allocated stet = Investeent, reflectin; a portion of the costs of constructigg the facility, but that Dow would have no obligatic to pay Censumers Power for stem: until the Midland Nuclear Facility attained ce=mercial operation for steac.
generatics as defined in the General Agree =ent.
16.
Recognicing the past history of the facility, the par-ies agreed to specific p cvisiens intended to p ctect Dow f cm further cost increases and ce=pletion delays. For exa=ple, under section 1(3) of the General Agree =ent, consumers Power prc=ised to "use its best efforts to place Unit 2 cf the Generating Plant in ec=mercial operatics fer electric service on or about March 1,1981 and to place the entire Generating Plant in co=ne'Ecial operatien for process steam service and electric service on or abo 5t March 1, 1982."
Under Sectica 4(C)(4), Consumers Power further agreed to " avoid imprudent expenditures" and to "use its best efforts to optimize the capital investments includable in the Allocated steam Invest-4 1
ment."
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Under sect:en 9(3)(1) of the General Agreement, the parties agreed that if Censu=ers Power beetse unable ::
1 declare' the' Midland Nucleah Tacility in c==ercial operatien
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for process steam by Dece=ber 31, 1964, then Dew would be entitled to ter=inate the contract and pay Censumers a termina-
~ tion fee no larger than ene-half of the prudently incurred Allocated Stea= In. vestment exp,enditures as cf the date of terninatien.
19.
Under Section 1(C) of the General A; eement, Censumers Power undertook to keep "Dow currently infer =ed whenever practical cencerning Censumers Power's conistruction schedules, the p cgress of engineering design and c nstructien, and p:cposed changes in engineering design, constructi:n and' cperating and =aintenance practices and procedures that vill significantly affe:: the aggregate cost of p: cess stet service to DoW."
T.
Censumers Power's Traudulent Misrepresentatiens And Ncn-Disc 1csures in the Negotiation of the 1975 General Aereement 19.
During the centract negotiations in 1977 and 1978 leading up to executics of the 1978 General Agreement.
Censumers represented to Dov that it knew of no construction p chle= c: other circu= stances that would prevent it f:c=
1 placing the Midland Nuclear Tacility in c==mercial cperati:n by March 1922.
Immediately before the executien of the c=ntract, Dow specifically requested discIcsure of any information-adversely reflecting on the status, cost c: ce=pletics of the
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project. Consu=ers Power assured Dow that.it knew of no "sur-s-
prises" c: any other adverse and undisclosed infer =atien about the project. These represent tions were intended to and did in fact induce reliance on the part of Dow in executing the ceneral Agreement in June 1978.
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20.
Censu=ers Power's representatiens c:n=erning the absen:e of adverse and undisclosed inf:::ation were false.
Specifically, C=nsumers Power knew pric: to..the ext::tien of the Central Agreement that the. Midland Nuclear Tacility was being constructed en imp;cperly placed and e==pacted fill and that these soils pr:ble=s and other c=nstruction problems described hereafter likely~'vo,uld prevent C:nsumers Power f c=
=eeting its target schedule. Censumers Power thus =isre' pre
- sented to Dow the status of the project and, in additien,
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c=ncealed =aterial inf===ation f::= Dov vith the intent to i= duce Dow to enter into the General A; eement.
21.
The s=ils pr:ble=s c ncealed f c= D:v arose f==
Censu=ers Power's decisien, because the.w.idland Nuclear Tacility is located en the f1=od plain of the Tittabavassee River, to raise the level of the site by depositing and c =pa: ting==:e than 30 feet of fill. Rather than e:nst:.:cting foundaticas using underpinnings, pilings c: ether established techniques to rest the weight of the plant structures en bed:cek or the undisturbed and e==pa:ted glacial deposits underlying the site, Cens==ers Power decided to place plant structures directly on t=p of the fill.
. 22.
A=eng the structures were vital safety installa-tiens such as the e=ergency diesel generate building, the auxiliary building, storage tanks for emergency cooling water,
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service water pu=p structure, and nu=ercus underg:=und pipes and cables carrying cooling water and vital control systems.
Because these structures vould rest in whole c in part en fill, p cper placement and co=pacti:n was essential to prevent the fill f c= settling under the weight of. the structures.
Excessive settlement and/or differential degrees of settle =ent of the fill can create serious unsafe conditions in any cen-struction project and are of particular concern in a nuclear power plant because they can cause blo:kage er rupture of pipes
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23.
On the basis of an engineering study ec=pleted in 1969 by the firn of Oames & Mocre, Cens=sers Power adopted detailed spe:ificati:=s and precedures governing the fill ts be used en the site and hev it would be deposited, c:=pacted and tested. Among other things, the specificati ns and procedures called for:
(a) Use of specified kinds of "--dxed, c hesive
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fill such as clay in areas c staining safety-related structures; (b) 7.egular testing of fill for meisture centent before and after place =ent en the plant site; (c) Cent :1 cver the thickness of ea:h layer of m-fill as it veuld be deposited en the site:
(d) Use of qualified ecliers and other ce= pac-tien equipnent to apply the necessary a=ctnt of cenpacti:n pressure en each layc of fill to achieve p =per ec paction; (e) Testing of the c==pacted fill at specified intervals to ensure that the required degree of density necessary to prevent settlement had been achieved; (f) rull-time supervisien cf all fill cpera-tiens by a qualified geotechnical engineer.
24.
Placement of the fill en the plant site took place f cm 1975 th:cugh 1977. Censumers power failed to observe any of the previously identified centrols c: other standards of reasenable care and prudence. Instead, Censumers Power proceeded with the place =ent of the fill knowing that there was net proper supervision, that impreper fill was being,
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used, that the fill had b'en insufficiently c:=pa:ted, and that e
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false or misleading test results were being relied up:n to certify the fill as meeting standards of the,,U.S. Nuclear Regulatory Co:nission ("NRC").
Dew was not inf med of any of these problems by Consu=ers ?:ver at any time prior to the execution of the General Agreement.
In 1977, "the ad=inistratien building was cen -
25.
structed en the defective fill and excessive settlement occurred i==ediately. By August 1977, pertiens of the foundatics of the administration building had settled up to 3 1/2 inches in ene m: nth.
An infor=al investigation conducted by Censumers Power later in 1977 and concealed fren Dew confi:=ed that there were serious deficiencies in the fill underlying the entire site,'
including the fill en which vital safety-related structures vere about to be cens.:::ted. The results of this investiga-tien, as well as all other facts known to Censu=ers ?cver.
cencerning the negligent and i=p cper fill place =ent, were con =ealed f== Dev.
26.
The 1977 Censu=ers ?cver investigaticn was li=ited to an exa=ination of the fill in the vicinity of the ad inistration building a:d a perfunctory test of two other pertiens of the site. Iven this inadequate reviev revealed that there had been systematic err =:s in the placement and c =paction of the fill.
A==ng other things, the investigatien
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at the administration' building site fcund "vcids" c: pockets of air in the fill and unbroken lu=ps of clay up to 3 feet in diameter, demonstrating that the fill had not been ce=pacted, contrary to safe.y Analysis Reports certified by Censumers
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Power to the NRC.
27.
To examine the entire safety-related perties of the site, Censumers Power conducted only one test boring. As a matter of prudent engineering practice, a single boring was 4
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insufficien te determine the safety of fill over(the cceplete site. Centrary to representaticas in the Safety Analysis Reports sub=itted to the NRC that un=ixed cohesive fill had been used in safety-related areas, this single test demonstrated that censu=ers Power had i=preperly used randem fill censisting of mixed clay, sand and.cther materials with varying properties.
Consu=t s Power's representations that un=ixed cohesive.fil$
had been used in the safety area were later deter =ined by NRC officials to be material f alse statements.
28.
Both before and after exerutien of the General Agreement, Consu=ers. Jwer's feports docu=ented that rand:
fill was i=p cperly used throughout the safety trea and tha-the fill had not been adequately c =pa:ted to NRC safety
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stand ards. ~More than 600 separate tests taken during the fill verk had shown that the fill was insufficiently c =pa:ted but were overruled or disregarded, while numerous instances of
" passing" tests centained results which upon further exanina-tien revealed deg:ees of ec=pactica physically i=possible to achieve. At least three " audits" c nducted by Consu=ers Power during the period 1974 to 1977 also verified numerous in;tances of failure to meet p per procedures c: specifications, but no disc 1csure was made to Dow c: to the NRC.
29.
By at least the end of December 1977, the senic:
=anagement of C:nsumers Power knew c: should have kneen that the fill en which the Midland Nuclear Tacility was being constructed was patently inadequate for construe icn of' a nuclear power plant and potentially unsaf,e. Netvithstanding this information, Consumers Power made the conscious decision not to disclose this materia'l information to the N%C.
Censumers 4
4 Power also made no disclosure to Dow during the negotiatien of the General Agreement. Instead, Censumers Power decided to i
proceed with construction of the diesel generator building and
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---o-ether safety-related stru tures en the iill, thereby :: eating
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the false and misleading appestance during the negotiatiens that c:nstruction was proceeding ner= ally.
30.
At the ti:e the General Agreement was executed, C:nsumers Power was also aware, but did : dis = lese to Dow, that ncn-soils constructica p:chie:s would affect it; ahility to fulfill its obligations uqder the General Agreement.
Con-struction delays caused by engineering changes, work steppages, and c:ntinuing failures to fc11ow p cper procedures and specifi-cati:ns we:e of such =agnitude that censumers Power decided in June 1978 to f=rego its usual' practice cf adopting' a new snhedule.
Such a fore =ast, if p cperly prepared and disclosed, veuld have revealed Censumers Power's inability to meet the March 1991' and March 1982 00 pleti== dates represented to Dev in the Ge:.eral Agreement.
31.
In :elian:e en Censt=ers Power's =isrepresenta-tiens and acn-dis:1csures during the 1977-78 negotiatiens regarding the status of the p cject, Dow executed the Ceneral Agreement. Had Dow kncvn the true situation, it would not have m
signed the General Agreement.
G.
Censu=ers Power's Misrepresentaticas And Failures To Disclose Since Execution of "he Ceneral Aereement 32.
Since June 1978, Censu=ers Power has engaged in an engeing pattern of misrepresentation and c=n=ealment'frc=
Dow cf the true i= pact en cc t and schedule caused by Censumers Power's negligence and willful =ise:nduct in designing and censtructing the plant. Specifically, this ongeing fraud j
constitutes a ma'terial breach of Censumers Power's centract=al and fiduciary obligations and justifies cancellation of Dow's I
abligations to perform under the General Agreement. In addi-4
- icn, Co.sumers Power's concealment f cm Dow of the true cost
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and schedu;e was intended to prevent Dow from exercising its w**
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right to ter=inate the Ger-M1 A; ee=e--
P.s described he:e-after. Mere:ver, as the direc. and p cximate result of Censu=ers Power's c::cealment of the true status c.d schedule of the p cject, Dow has incurred =illions of dellars in expenses,
. including =cre than $60 =illica expended to construc*. its facilitics to receive stea= f c= censumers Power. Osw has done so in reliance on'tke =isrepre'sentations of Consumers Power regarding the ' status cf the project. Had Dow been infermed of the centinuing delays and ccnstructic pr ble=s at the projec.
or Consumers Power's inahility to =ce the Dece=ber 31, 1954 deadline, Dow would not have incurred thes= costs.
, 33.
Prior to execution of the General A ree=ent.
Censu=ers Power began construction of the c"iesel generate:
building and other safety-related structur=s. By July 22, 1978, scarcely a =:n h after the executies of the Oeneral
- Agre s=e nt, settle =ent of the diesel generat.=: huilding already pxceeded 1-1/2 inches as c:= pared to a to z.2 safety all:vance of three inches eve: the 40-year p cjected lifetime of'the Midla.nd Nuclear Pacility. Nevertheless, N su=ers Power decided to centinue constructicn and to cenceal th.is infc.matica frc=
.Dow, despite the General A;;eenent provisic:ns requiring 0 w to be advised of such significant events.
34.
By August 18, 1976, settle - :t of pertiens of the diesel generator building had reached four inches, exceed--
i ing the safety limit, even though t.he building was r.till caly approxi=ately half ec=plete. On August 23, 1978, cer.sumers Power suspended construction of the diesel generater building and other safety ' Structures and notified the NRC.
At the sane
- i=e, recognizing that its pr'evious schedule estimates were no 2 to' delay prepara-lenger valid, consuciers Power decided agai:
tien of a cost and schedule forecast for the project because soils proble=s and other uncertainties prevented any realis-ic forecast from being made. Despite its duty to disclose this i
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slynificant develep=ent to Dev. Censumer: Pcuer f:iled te de so.
35.
Tc11 ewing the August 23, 1978 suspensien of construction, Censumers P ver conducted tacther investigation which confirmed that th3:e had been systematic and gross neg-ligence in the place =ent and c =paction of fill underlying the entire site. The investigatica concluded that essentially all meisture and density tests conducted during the place =ent and ec=paction of the fill had been i= properly perfor=ed. As later su==ariced in a July 1979 report prepared by Bechtel, "there is no rational = cans cf deter =ining which test results are valid and which are net."
36.
Despite the everwhelming evidence that the fill underlying the site was inadequate and potentially unsafe, Censu=ers Power elected en er about Dece=ber 1978 to resume constructica of the.w.idland Nuclear Facility'.
Cens==ers Power did so in the face of express warr.ings from NRC cfficials' that P
Censumers Powar was proceeding at its own risk. Censu=ers Power also decided not to re=cve and rep' ace the unsafe fill but instead ta=perarily piled sand en p=rtic=s of the site in En atte=pt to ec= pact the defective fill. Censumers Power was specifically warned by NRC cfficials that they had not approved 4
this precedure er the res==ptica of ecastruction.
37.
In Dece=ber 1978, Censumers Power requested Sechtel to assess the i= pact en plant c:=pletion of soils remedial werk.
In April 1979, Sechtel infor=ed Cens==ers Power that there would be at least an eight-centh delay in the fuel e
load date for Unit 2 and a five-menth delay for Unit 1.
Sub-e sequent schedule changes showed that the target dates Const=ers Power had held cut to Dew were ne lenger valid. These included a July 1979.rhtel report and a November 1979 Consumers Pcwer 4
schedule, both of which identified further slippage in the i
schedule. Still further slippage became inevitable when consu=ers ae.,
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s, Power's investigatien of the fill confir ed that the re=~etal s=ils =casures it had taken were inadequate and that years cf edditional delay veuld be ne=essary to devise and i=plement further re=edial =casures.
38.
On December 6, 1979, the Nuclear Regulatory
~ Co==ission issued an order finding that there had been a
" breakdown in quality assurange related to soil construction -
artivities under and around safety-related structures and syste=s."
The NRC also found that C:=sumers ?:ver had made
=aterial false state =ents in certifying its :=pliance with fill procedures outlined in the Final safety Analys'is Report.
The NRC deter =ined that there re=ained an " unresolved safety issue c=ncerning the adequacy of the re=edial a:tice to c:::ect the deficien:ies in the soil c:nstru= tion under and around safety 2: elated structures and syste=s".
Censu=ers ?cwer was therefore ordered to terminate all further seils related wo X.
39.
It was abundantly clear by at least the end cf Oece=ber 1979, in lig.it of the NRC : der, that Const=ers Fever could not =cet the General Agree =ent's tar'get c =pletion dates.
Further= re, C=ns==ers Power also knew or shculd have known that it was unable t meet the Dece:he: 31, 1984 deadline for cen=ercialsteamcperakieninviewofthefactthatthe=aje:
structures of the facility were resting en thirty feet of i:fadequate and unsafe fill and the NRC had rejected the remedial measures which Const=ers Power had taken.
40.
Censumers Power's inability to meet the 1984 r
i deadline was confirmed in January 1980 when Sechtel previded '
Consumers Power with an updated cost and schedule ferecast, l
known as Ferecast 6, which declared that Const=ers Power would l
be unable to ce=plete the Midland Nuclear Facility until 1985.
The Bechtel forecast also projected that total plant costs would be $3.1 billion rather than the $1.67 billion previously estimated.
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41.
Despite i s kn:vledge. hat it cevid n-t e eplete N.
the p:: ject by 1954, Censumers Pever de:ided to cenceal f :=
sb'N Dev its i= ability in c de: to prevent Dow fre= te=inating the s
General Agree =ent under Section 9(3)(1). Thus, Consumers Power
,.s's publi:1y stated that it refused to accept Be:htel's esti=ates s s fc: plant co=pletien. At the same ti=e, however, Censumers
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N.N Power perfor=ed interna 5 studies disclosing that its principal N
alternatives were (i) either to ce=plete the nuclear facility' s
'1q May 1985 and assume the risk that Dow would teminate the Genel 1 Agree =ent; c: (ii) to ter=inate construction and either 3
write-ektheproject'erconvertitt coal-fired power.
x Censumers Po'q: recogni:ed that if Dow were to exercise its right to te=i.'hw under section 9(3)(1), Dov's temination' Nx payment based en cos'y incurred as of April 1,1980 v=uld be a s
of 51ES =illien>\\s
=axi=u Ead Cons =ers Power disclosed to Dow that it could net neet the M54 deadline, Dew veuld have ters-N inated the contract..
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C c:
about March 5,,3,950, cens=ers Power decided to centinue const..:: tion of the't.idland Nuclet: Pacility
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and fabricate an artificial schedule purper4 g to show that it s
c=uld ce=plete the project before Dece=ber 19SUNthereby depriving Dow of its right to te=inate. Pursuant to its Markb,1980
<.s plan, censumers Power thereafter took the public positilen that s 's it intended to find ways of shortening the schedule. At th?.g N
time it took this public positien, Censu=ers Power concluded N s' internally en May 5, 1980, that "we generally agree with Bechtel
'N, both en schedule and cost."
43.
cn June 25, 1980, to further the c=nceal=ent of its inability to meet the 1954 deadline, Cens==ers Pcuer directed 9
Bechtel to prepare a new construction schedule under which the Midland Nuclear f acility would be in operation by July 1954.
This date, which shortened the Pechtel estimate by one year, was announced for the specific purpose of, among other things,.
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preventing Dev f:c: ext :ising its right :: terminat: ths Generti Agree:ent.
44.
In crder to effect the centinuing cencealment.
Censu=ers Power and its agent, Bechtel, agreed on July 10, 1920 that in all statements and docum,ents prepared "fer publi:
c:nsu=ptien," they would refer to censu=ers ?over's " current proje:; schedule"datespupp)ptingtoshowthatthe1934ccm' mercial stea=, cperation deadline could be met.
At the same fa ti=e, it was agreed f:: inte ~ al purposes to use the true s'.
- schedule which re:cyni:ed that the 1954 deadline would not be met.
45.
Dow was not infer:ed of the true schedule.
Instead, at all ti=es between July 10, 1930 and April 11, 19'E3, Const=ers ?cuer assured Dow that the plant v:uld be in ::::er-cial operatica by Dect:her 31, 1954. Th: ughout this peried cf deception, Censumers ?:ver knew er sh uld have kn:vn with each passing day that the 1954 deadline was ever :::e unatteinable, but refused publicly := ackn:vledge these facts.
46.
For ext =ple, en Nove:ber 9, 1982 Censu=ers
?cuer called a press c nference :: discuss the plant's schedule at which a censumers ?cuer official specifically denied that the schedule centrived fer public censu:ptien vould not be met.
Telleving the press conference, en Nove:her 15, 1952, Censu=ers
?over informed Dev that no new c epletien dates v:uld be :ade available to Dov until early February 1983.
47.
In early February, Censumers ?:ver again c:n-cealed f:cm Dev the existence of its right to ter=inate.
i t
Instead of admitting its inability to =eet the deadline, Cen-sumers ?:ver notified Dow that a new s:hedule would not be released until April. Cn February 18, 1953, Dow requested i
Censumers ?cver to provide "=eaningful vritten assurance" that the 1984 deadline would be =et.
On March 7, 1933, censumers 70ver ence again refused to admit its inability to meet the 4
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1954 deadline and instead resp: ded tha " April vill be the earliest ti=e ve etn give you the benefit of our censidered judg=ent on cest and schedule."
48.
Not until April 11, 1953 did Const=ers Powe finally admit to Dev that Unit 2 veuld not go into :::=ercial cperation before Fibruary 1985 and that ec=pletion of Unit I would be delayed until August 1985. Censumers Power further.
esti=ated that the t:tal cost of the proje:: vould be $4.43 billien, an in:: ease of ::re than $1 billien over its previous esti=ates. By virtue cf the April 11 anscuncement, fer the first time Dev possessed the vnqualified right to ter=inate under Article 9(3)(1) of the General Agree =ent.
E.
Censumers Power's other Material Breaches And Negligence In The Perf ::ance Of the 197! Oeneral A ree=ent 49.
The =isrepresentations t=d n:n-diselesures
- alleged above c nstitute =aterial breaches of Censumers Pever's centractual and fiduciary duties. In additien, C:nsumers Pouer has since June 1978 c===itted other =aterial breaches by failing to use its best efferts to ce=plete the plant cad by failing to avoid i= prudent expenditures in the design and c:nst:.:c. ion of the Midland Nuclear Facility. Const=ers Power has also negli-gently and villfully failed to exercise due care in the cen-structien of the Miditnd Nuclear Facility.
50.
Since 1978, Censnmers ? ver's =ismanagement of the Nuclear Facility project has resulted in repeated schedule delays and inordinate ecs increases. Among other things, as a result of the negligence of C su=ers Power in the placement l
l And co- ;etien of the fill en the Midland Nuclear Facility site j
and its i= prudent choice of remedial measures unacceptable to the NRC, Censumers Power placed itself in a positien whereby 4
removal and replacement of the deficient fill could not be
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accomplished without de=olishing the nuclear facility. Censu=ers
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Power' then ad:pted a costly and untested underpinning p get-inv:1ving tunneling under existing stru:tures and installing new foundatiens, further adding to tne delay and exp-nse of. the p cject.
51.
NRC officials have described the nagnitude and ce=plexity of the underpinning p:cgra= as equivalen* to building
~
a thir.d nuclear reacter on the site. Under present construc-ien schedules released by censu=ers ?:ver, the earliest the under-pinning p cgram can be ::=pleted is in 19E5. As a c:nsequence,
= re than eight years of delay in the f.idland Nu: lear Facility vill have elapsed f::= 'the August 1977 detecti n cf settlement at the administrati:n building. Ouring this same period, Consu=ers Power's esti=ates of the cost of the nuclear facikity have increased by nearly 33 billien.
52.
Centinuing quality assurtn=e pr:ble=s at the P.iditnd Nu= lear Ta:ility have resulted in the NRC's c:n:luding that there is no reat:nable assurance that C:nsu=ers Power vill
==nstruct a nuclear facility that =eets Nib requirements fer licensing fer ce==er=ial eperatien. Fcr example, since the underpinning prog tn began, the NRC has ordered the verk to be halted at least twice because of negligence and lack cf super-visien by Const=ers ?cuer. On January 7,1921, the NRC fined Censu=ers ? cue: 332,000 for quality assura=ce infractions related to the negligent installation of heating, ventilating and air-cenditiening equipment. Tvc years later, en February 8, 1983, the liRC impesed a civil penalty of 5120,000 en Censumers Power for yet (nother breakdown cf its quality assurance p:cgram.
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53.
On December 2,1982, in the face of==unting pressure fro = the NRC, Consuders ?cwer halted all non-seils.
safety-related construction because of its c=ntinuing inability
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to =anage construction in a c==petent and licensable =anner.
Jurisdiction over the project has been assigned to the NRC of fice of special cases, an office specially created to review.,:..
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the =o'st troubled nuclear pr:je: s.
Ee:ause of its een negli-gence and =is:anage:ent, Consuners Fewer has been subje:: to increased scrutiny and investigatien by the NRC. leading to further increases in the plant's cost and unreasonably delaying its co:pletien.
54.
In light of the centinuing history of Censumers Power's negligence, quality 'as,surance breakdowns and other failures, there is no reasonable prospect that censumers Pcwer Will c =plete the Midland Nuclear Facility at a reas nable cost and within s reasonable time, if inceed the plant vill ever be finished.
It now appears likely that the NR: vill order a reinspection cf virtually all plant systems and vill require an independent third-party verificatien of design and c=nstruction.
such acti:ns vill require at least a year of further delay and a dditienal substantial ces in:: cases by the=selves. Because of the history of sericus safety and other p chle=s discovered to date, it is reas:nable to e:pe:: further delays and cost in:: eases, if not per:anent terminatien of constru:tica, to resul-frc= cny additienal inspection of the Midland Nuclear Facility and the dise:very of additional =aterial defects cen=ealed thus far f cm Dov.
55.
Based on the present status of the Midland nuclear facility and its past histery, consumers ?cwer's April 11, l
1983 cos and schedule forecast was itself a centinuatien of Censumers Power's pattern of cen:ealment and =isrepresentatien.
l Because of the continuing negligence and recklessness of censumers t
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Power and the numerous unresolved licensing and safety questiens L
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that have resulted, the Midit=d Nuclear Facility =ay never be c =pleted and in any event it certainly vill not come into t
l ce=mercial operatien before 1986 at the earliest and at a cost i
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of less than 56.0 billion. The Midland Nuclear Tacility, if l
l ce=pleted, vould p:oduce energy at a commercially unreasenable i
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cost centra.ry to the assu=;ti:ns en whi:5 the Gene':al' Agreement was pre =ised.
I.
Dew's Ternination Of The General Aeree=ent 56.
Folleving Consumers ?cwer's April 11, 19E3 announcement, Dow undertook to determine the reasons for Cen-sumers, Power's failure to co plete the Midland Nuclear Ta:ility.
Dov de=anded a review of a large
=ber cf Censumers Power doru=ents never bef:re provided to Dow, a p::tien of which have new been produced. The do::=ents c:nfir= that a c=ntinuous and systematic practice of =isrepresentatien and nondisclosure has been perpetuated by censu=ers ?cuer in derogation of its cbliga-tien to keep Dev fully and a::urately infer:ed of all =ateriki facts concerning the proje: 's cost and schedules.
57.
A::::dingly, fer all of the reasens described in this Cc: plaint, Dev served n:tice en censu=ers ?:ver that it vas ter=inating the General Agree =ent pursuant to Sectien 9(B)(1) and : serving its rights to pursue its legal re=edies under this C:= plaint.
c COUNT I Fraudu]ent Misretresentas::ns and Nen-Diselesures 58.
The all'egations of paragraphs 1-57 are hereby realleged and in::rperated by referen:e.
59.
At all relevant ti=es Censumers ?cwer ewed Dow a duty to refrain f:cm making =aterial =isrepresentaticas. Unde:
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the General Agreement, Censu=ers Power also owed the duty -
affirmatively to dis:1cse en a current basis all =aterial l
informatien whic6 could significantly affect Dew's rights and obligationsundertheGenera[ Agreement. Because of the fiduciary relatienship owed by Censu=ers Power to Dow, censumers Power was required to adhere to an evan higher standard of full and fair disclosure than would c:cinarily be applicable.
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60.
As previously alleged, Censurers ? wer has engaged in an eng:ing series of =aterial nisrepresentatiens and non-dis:lesures, in disregard of its c==:n law, fiduciary and centractual duties, beginning as early as 1977 and continuing until at least the date of this action. Said =isrepresen'tasiens and n:n-disclosures were intended by Consumers to be relied up n, and were relled upon,, in inducing Dow to enter into the 197A General Agieement. Theheafter,ccn'sumersPower's=isrepre-sentations a5d non-disclosures were calculated to prevent er delay Dow f c= exer:ising its legal right to terminate the centract and were also designed to conceal censumers Power's negligence and in===petence in meeting its cbligati=ns to c=nstruct a nuclear generating plant in a safe, efficient, workmanlike manner while av=iding all i= prudent expenditures.
Dow did in fact justifiably rely to its 4:triment c= these misrepresentations and nen-disclosures which were false and misleading by, among other things, expending over $60,000,000 as a direct and p cximate result.
VdT.TGTCRI, Dow p:ays that the Court adjudge the legal rights cf the parties as follows:
A.
That during the negotiati:ns leading up to the execution of the 1978 General Agreement, C ssumers ?cwer engaged in =aterial =isrepresentatiens and non-disclosures which induced Dow to enter into the 1978 General Agree =ent.
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a 3.
That after the executics of the 1978 General t
.Censumers Power engaged in ongoing =isrepresentations j
Agreement, and non-disclosures for the purpose of eencealing from Dew material information cencerning the cost and scheduling of the pro]ect.
C.
That the foregoing material misrepresentations 1
and non-disclosures were relied upon by Dow to its detriment.
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Tha' t*; reasen of Censumers ? ver's vrengful c ndu::, the Genert. Ag:eement should be and is legally cancelled and any and all ebligaticas of Dow under said General Agreement are discharged.
E.
That Dow is entitled to such further and addi-tienal relief as this Court shall deem just and p cper including actual _ damages in, excess ef'S6,0,000,000 as well as punitive ind exe:plary damages and reasonable attorneys' fees.
CCUh7 II Material Ereach ef Centra:: and ef Pidued arv Duties 61.
The allegations of paragraphs 1-57 are hereby realleged and ine:rporated by reference.
62.
Censu=ers ?cwer owed Dow the following duties'
~.
under the General Agreement and by reasen of the fiduciary relatienship between the parties:
a.
Censu=ers ?:ver was required under Article 1(3) f the General Agreement to =se its best efforts to attain ce=mercial eperatien of Onit 2 fer electric service by March 1, 1991 and to place the entire generating plant in ec=mercial operatics by March 1, 1982. This centract obligation, as well as its fiduciary obligation, required Censumers Power at minimum to pro:eed with all phases of c =struction and licensing with due diligence and in a non-negligent,
~
werkmanlike nanner so as to a:hieve th se dates; l
h.
Censumers Power was required under 4
Article 4(C) of the General Agree =ent, as well as i
under its fi.duciary cbligatiens, to avoid i= prudent expenditures so as to mini =l:e the aggregate cost of the price of steam to Dew; c.
Censumers Power uas further required under Article 1(c) of the General Agreement, as well as under its fiduciary chligations, to keep Dow 1
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currently inf: r.' cf all =aterial facts whi:h would significantly affect the cost c: ti=ing of Dev chli-gations under the General Ag:eement.
d.
C=nst=ers Power was further subject to an i= plied ebligation under the General Agree =ent to
~
exercise good faith, due care and reasonable diligen:e in the peric'r=an=e of its' centra:tual obligations.
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63.
As previcusly alleged. Censu=ers ? ver has repeatedly violated each of the foregoing legal cbligations.
Individually and collectively these a:ticas ccastitute c.terial
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breaches of the General Agree =ent, entitling Dow to cancel all remaining contract cbligations. As the direct and proximate.
result of Censu=ers Power's naterial breaches, Dov has suffe, red substantial financial injury including the loss of eves 560,000,000 expended in reliance en the General A;:eement.
VEIRIFCRI, Dev prays that the C:urt adjudge the legal rights of the parties as fellevs:
A.
That const=ers Power has =a'terially breached the General Agree =ent.
3.
That censu=ers Power has =ateria11y breached its ~
fiduciary duties eved Dov.
C.
That by reason of the foregoing breaches of Censumers Power's c ntra= ual and fiduciary duties to Dew, the General Agree =ent should be and is cancelled and all re=aining j
ebligatiens of Dow under the General Agree =ent are discharged.
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D.
That Dev is entitled to such further and addi-tional relief as this court should dee= just and preper, including but not limited'to recevery of da= ages resulting fren censumers Power's wrongful conduct i'n:1'uding = ore than $60,000,000 expended by Dow in direct reliance en Censumers Power's faithful adherence to its legal obligations.
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44.
Ex:use by.:.eas:n of Failure of runda. ental Assu=-tiens 64.
The allegaticas of paragraphs 1-57 are hereby' realleged and incorporated by reference.
65.
All renaining contract cbligaticas of Dow should
~
be sxcused by reasen of the failure of fundamental asst =ptions upon which centract perfor=ance was based, includi=g consume'rs Power's inability to ec=plete the Midland Nuclear Facility.
A's a result, Dov's performance to purchase steam has bec =e ecm-nercially i= practicable because of the occurrence of super-vening contingencies which were not within the cente=platica of the parties at the time the General Agre_=ent was executed in June 1978, including:
a.
The assu=ption that the fill upon which the plant structures were to be e:ected was adequately ec=pacted and suittble for c nstr==tien of the Midland Nuclear Facility; b.
The assu=ptien that the plant was capable of being constructed as as te =eet the target dates of 1981 and 1982 fer Unit 2 and tne entire generating plant respectively.
c.
The assu=p-den that the plant vould be ccnstructed within a reasonable time at a ce==erc. ally reasonable cest.
4 i
VEIRIroRI, Dew prays that the court adjudge the legal rights of the parties as follows:
A.
Dov's centract cbligations to purchase steam i '
have been frustrated c: rendered ce==ercially impractical by l
the failure of fundamental assumptiens upon which the ceneral i
i Agree =ent was based.
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B.
The failure of these fundamental assu=ptier?
were not caused by any actions of Dev.
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- w is entitled to. d::larati:n Q at all of its remaining chligations under the General Agreement are excused.
COUNT IV Calculation ci Ter=: nation Payment IJnder Article Nine ef the 1972 General Acreement 66.
Dhe allegations of paragraphs 1-57 are hereby
~
realleged and ince.7 orated by' reference.
67.
To the extent that its cbligations under the General Agree =ent are not legally discharged en ene or more of the g cunds set forth in Coun*s I-III, Dow notified Consumers t.
Power that it has exercised its unqualified right to ter=inate in accordance with the previsiens of Article 9(3)(1) of the General Agree =ent..
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66.
Although C:nsu=ers Power acknowledged fer the first ti=e en April 11, 19E3 that eersercial cperatien fc process stea= would not occur pric: to Dece=ber 31, 1984, it knew or had reasen to know of its inability to mee*. this dead-line at least as early as Decerber 1979.
69.
Censumers Power's false represt.ntatiens and nondisclosures cor erning its ability to meet the Dece=ber 31.
1984 ce=mercial operation date were designed to prevent, and in fact did prevent, Dow frc= exercising its te==ination rights under the General Agreement. Censumers Pever thereby sought to increase by =any hundreds, of =illiens of dollars the eventual ter=inaticn charge which Censumers Power would clai= that Dew was required to pay.
70.
The foregoing actions of Consumers Pcver are in breach of the fiduciary obligatiens owed Dow as well as the General Agreement and further constitute fraudulent =isrepre-1
~
sentation and non-disclosures in violation of Dov's com=en law ri ghts. As the direct and proximate result of Consu=ers Power's failure timely to disclose its inability to eo:eplete the plant for ce==ercial steam operatics prior to December 31, 1984, Dow j
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has incurred s=sstantial expenses which would not have been incurred had Censuners Power ti=ely discles.ed this inability.
E7croTd, Dew prays that the Court adjudge the legal rights of the parties as follows:
A.
That to the extent the General Agreemen* is ne*
otherwise legally.disch'arge'd, Dow has pr:perly exercised its right to *er-inate under Article 9(3)(1).
3.
That Censu= rs Power's c =munications to Dow cencerning the c==ercial operation date for peccess steam were fraudulent, =isleading; and in viciation of Censubers Power's cent.ractual and fiduciary obligations to Dov.
C.
That in c:=puting the ter=inatica charge, t0 the extent that pay =ent is n:t otherwise ex used, said ter=inatic charge shall be c==puted en the basis of a ter=inatic date at least as early as Dece:he: 1979 when Censu=ers ?cwer became
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unable to ce=plete the plant fer ce==ercial stea= cperatica pric: to Dect=ber 31, 1934.
D.
That in compu*ing the termination charge, to the extent that pay =ent is net othe: ise excused,. said ter=inatien charge shall be reduced by that omou=t of expenses incurred by Dow since at least as early as Dect=ber 1979 which veuld not I
have been incurred had Censu=ers Peve: ti=ely diselesed its I
inability to ec=plete the plant for ce=mercial steam operatica i
~
prier to December 31, 1984.
4 C OUh"I V Neelscence 71.
- he allegations of paragraphs 1-57 are hereby l
realleged and incorporated by reference.
i 72.
Consumers Power further owed yo Dow at all t
- elevant ti=es a duty to exercise due care and to p cceed in a ce=petent, verkmanlike manner en its part c: en the part of its agents in the planning, supervision and construction of the Midland Nuclear Tacility.
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73.
Consu=ers Power has breached its ddty by f ailing to ext :ise due care in a ce=petent, work =anlike =anner in the planning, superiision and const: action of th"e Midland Nuclear Facility. Censuners Power's actiens have instead reflected a villful disregard for the rights of Dow and constituted reck-lessness c at mini =u= n'egligence. Dow has suffered sericus financial injury as the direct and p:cri= ate result of Censu.ters Power's failure to exercise due care including the loss of eve:
560,000,000.
%=:.47C72, Dew prays hat the Court adjudge the legal rights of *he parties as follows:
A.
"" hat censumers ?cwer owed a duty to Dev to proceed in a c:=petent verk=anlike nanner and with due care in the planning, supe: vision and cons.: action of the Midland Nuclear Facility.
That censu=ers Power has willfully disregarded B.
a.nd violated the af :e=e:.tiened duties and through negligent conduct has caused Dow to suffer serious financial damages in,
ex.ess of $60,000,000.
That Dow is entitled to rec =ver it.s damages as C.
b the result of Cens==ers Fever's re:kless and negligent c nduct together with such further and additienal relief as this Court shall des = just and p;cper including punitive and exe:plary damages together with reasenable att= neys' fees.
1, Re=:gius A. Gasxa Manager, Ipecialty Products Manufacturing, Inergy and Utilities Michigan Division The Dow Chemical Cc=pany 4
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on 2.is 14th day of July, 1983, before me perscnally came the above-named Re=igius A. Caska and made oath 2.at he "
has read the foregoing Co:r. plaint by his subscribed. and knows the contents thereof, and that the same is true of his own knowledge or, on info:mation and belief, he believes it to be tne.
Notary Punlac My Co= ission expires LAW CTTICIS OF */IR2ERT E. IDWARDS, P.C.
By:
Serner: E. Iowa.rt.s (F13112) 2612 Ashman P.O. Box 1883 Midland, Michigzs 4E640 (517) 631-5511 KIRD.h*D & II.J.IS By:
Samuel A. Haubold Of Counsel:
Willia = R. Jentes James A. Goold I,avrence I.
Strickling Thomas D. Cra.ber KIKKI.AND & I'I.!S 200 East Randolph Drive Chicago, Illinois 60601 (312) 861-2000 4
Wayne M. Hancock Thomas J. Cresswell
?
THE DCW mMICAI. CCMPANY 2030 Dow Center i
Midland, Michigan 48640 Dated: July 14, 1983 d
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