ML20247B590
| ML20247B590 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/19/1989 |
| From: | Burnam L AFFILIATION NOT ASSIGNED |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#389-8914 CPA, OL, NUDOCS 8907240156 | |
| Download: ML20247B590 (152) | |
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USNRC UNITED' STATES OF AMERICA NUCLEAR: REGULATORY' COMMISSION:
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BEFORE THE ATOMIC SAFETY AND LICENSING: BOAR @p : U 17 P4 :37:
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In.the Matter of: : !
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' TEXAS UTLITIES ELECTIRC : Docket Nos.'50-445-OL l COMPANY, ,ET AL., 50-446-OL o.
. 50-445-CPA
, .: Comanche P'eak Steam Electric :
i Station, Units 1 and.2 n7 p..
h MOTION TO REOPEN THE RECORD
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Pursuant to 10 C.F.R. Section~2.734, petitioner Lon
.g Burnam requests this tribunal to both re-open the record of the.above-captioned proceedings and thereafter grant
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petitioner leave to amend or file a renewed motion for
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".f intervention. On July 11, 1983, prior.to the closure of the record at issue,'Mr. Burnam sought leave to intervene with this Board. That motion however, wa's summarily denied based
} on what petitioner believes is a litany of false and misleading statements made to this tribunal during the h course of a hearing held that same day. Moreover, this same request need not be based on those statements alone but on i
f newly discovered evidence not known to either petitioner or this tribunal at that same hearing.
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4* A. Introduction f: ,It is axiomatic that notions to reopen an 1
administrative record should be grar ted if a petitioner is l able to satisfy the requisites of that particular agency governing regulations. See, 10 C.F.R. sec. 2.734 et seq.
To be sure, one faces hurdles in seeking such action. Yet, as we demonstrate below, Mr. Burman fully satisfies those requirements in light of the particular facts of this case.
Petitioner satisfies 10 C.F.R. 2.734 (a) (1) for the following reasons:
b This motion is filed within one year of the 1) k closure of the record on July 13, 1988, and as such is timely filed;
- 2) New evidence regarding the payment of " hush" money l to whistleblowers not to testify before this Board surfaced for the first time after the record was closed;
- 3) The parties appearing before the July 13, 1988 ASLB proceeding made false and/or misleading statements on the record to this Board. The making of such statements to this Board constitutes an exceptionally grave situation l requiring reopening of the record.
- 4) Facts uncovered in the Comanche Peak minority
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shareholder suits have been kept from this Board, i
Petitioner satisfies section 2.734 (a) (2) for the )
4 following reasons:
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- 1) As evidenced in Attachment 1 (excepts from two secret settlement agreements), money had been paid to potential witnesses not to testify before this Board. As i
evidenced in Attachment 2 (an affidavit of Joseph J.
Macktal), a potential ~ witness was coerced into accepting money'not to testify before this Board by the attorneys representing CASE.
- 2) Petitioner alleges that false and misleading l' statements were repeatedly made to this tribunal between 1982 and 1985 by Texas Utilities witnesses and that these false and misleading statements resulted in this Board's reliance on -- and adoption of -- either false or misleading facts when issuing its December 28, 1983, Memorandum and Order in the matter of Texas Utilities, et.al, Docket Nos.
50-445 and 50-446. As memorialized in that Order, the ASLB relied on testimony provided by Mr. Finneran and others, as well as false or materially misleading facts contained in a NRC staff Special Inspection Team (SIT) report to answer the following fundamental question:
[A]lthough differences in engineering, approaches occurred between the three parallel pipe support groups
[ITT-G, NPSI and PSE]...the fundamental issue for this Board to resolve is whether these differences in engineering approaches represents a safety or j engineering concern ...[by assuring] that each design organization has a clear, documented scope of responsibility...
A copy of the relevent portion of the December 28, 1983 ASLB Memorandum and Order is attached hereto as " Attachment 3".
As a result of false information presented to the ASLB and/or NRC staff, the ASLB was led to believe that:
The evidence establishes that each of the three 3
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. pipe sim port design organizations has its own specific scope of responsibility for a specific group of supporte. There is no need for cross communication
< between the three groups since they share no common, i in-line design responsibility... The Board concludes that the Applicants have adequately defined and documented the responsibility and paths of communication between ...the pipe support design !
groups. No NRC regulation has been violated. i J
j' See Attachment 3, at p. 68. i j
After the issuance of the ASLB's December 28, 1983 J Memorandum and Order, counsel for Texas Utilities attorneys filed a series of motions for summary disposition, together-with affidavits (primarily from Mr. Finneran). During the
- course of submitting these various affidavits, Mr. Finneran and other affiants again materially mislead the ASLB by stating that each of the three design organizations, ITT-G, PSE, and NPSI, had "seperate and distinct responsibilities for the design of pipe supports" and all design changes during construction are " returned to the original designer for correction and rechecking..." See Affidavit of D.N.
Champman, J.C. Finneran, Jr., D.E. Powers, R.P. Deubler, R.E. Ballard, Jr., and A.T. Parker Regarding Quality assurance Program for Design of Piping and Pipe Supports for Comanche Peak Steam Electric Station, dated July 3, 1984, at pp. 13 and 36. At the time the affidavit was sworn, Mr.
Finneran and others knew that the statements contained in the affidavit were false.
i 3. As detailed in the briefs appended hereto as Attachments 4 and 5 (briefs filed by S.M.A. Hasan before the Secretary of Labor), false and perjurous statements made by j
Texas Utilities witnesses during the course of a Section 210 proceeding threaten the safety of the Comanche Peak facility L 4
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'by'kallingintoquestionthelintegrityand'competenceof
' Texas Utilities + management.
' In.theJattached briefs (Attachments 4 and 5)~-Mr.,Hasan,
' charged, Texas Utilities and BrownJ& Root management with employing'alfraudulant scheme to certify the pipe support system at Comanche Peak with' multiple sets.of design-j' . criteria. As~ detailed therein,1the three pipe support i-L i designiorganizations then employed on site-(ITT.Grinnell or.
[ "ITT-G",'NPS Industires or "NPSI", and Pipe Support Engineering or "PSE") engaged'in.open and notorious
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violations of 10 C.F.R. Part 50, Appendix B.
Petitioner hereby incorporates.the facts alleged in Att$chments 4 and 5 as if fully set our herein.
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Petitioner satisfies 10 C.F.R. 2.734 (a) (3) for the l.-
'following reasons:
- 1) Had this tribunal not been materially mislead on-I July 13,:1988 by counsel for Texas Utilities and CASE, this l Board would have likely granted petitioner's request to i
f intervene;
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l: 2) Had.this tribunal known of the payment of money to '
witnesses not to testify before this Board and the payment
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of money to CASE's counsel not to raise certain issues before this Board been known at the July 13th hearing, this Boa $d would have likely granted petitioner's request for intervention in light of the fact that all of the admitted l party had kept this information from the Board. I
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- 3) This Board would have likely' granted petitioner's motion to intervene on July 13, 1988 had facts.concerning
.the_ alleged perjury set out in detail in Attachments 4 and 5 been revealed to the Board on July 13, 1988. These facts, not known by petitioner in detail on July 13, 1988, were i
known to some, if not all of the parties appearing before the Board on July 13th. Counsel for NRC Staff, for example, l knowingly remained silent rather than reveal to this ASLB that NRC staff had counsel appearing before the ASLB on July L 13, 1988 had knowledge of the perjury allegations contained in Attachments 4 and 5. To wit, NRC staff was in possession as of April 26, 1988, the documents appended hereto as Attachments 4 and 5. Similarly, counsel for CASE was also l in possession of Attachments 4 and 5 by April, 1988.
Counsel for CASE likewise failed to inform the Board of this information. Both the NRC staff's and CASE's failure to inform the Board was in violation of long standing Board orders to keep the Board informed of any relevent information. Counsel for Texas Utilities took an even more l aggressive role in mislead this Beard about the existence of 1
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l perjury allegations (Attachment 4 served on Texas Utilities
! counsel in February and Attachment 5 in April of 1988).
According to Texas Utilities' counsel:
(We] have, as stated on the record today, a suspicion of perjury. We know of nn such evidence. We strongly l
deny any circumstances, and we will ask for 1 4 accountability outside the confines of these j proceedings.
l Hearing Tr. at p. 25247 (emphasis added).
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' Beyond the perjury allegations contained in attachments 4 and 5, CASE had itself alleged that Texas Utilities and its attorneys regularly submitted " material false statements" to this ASLB. See e.g., CASE's Supplementary Response to Applicants Interrogatories to ' Consolidated-
'f Interveners', dated July 6, 1987, at pp. 3-4. Petitioner hereby incorporates this pleading by reference. CASE's l allegations regarding the regular submission of " material false statements" constitute allegations of perjury in that c many of the statements were made under oath. A review of this CASE pleading indicates that CASE had identified to l' additional false statements made by Texas Utilities in l
connection with the Hasan v. NPSI, et.al, 86-ERA-24 case.
Id., at p. 12.
Furthermore, CASE alleged in a July 8, 1987 pleading filed with this Board that facts surfacing during the hearing of the Hasan case were:
) "of such potential significance to both the operating
- license proceedigns and the construction permit
_j proceedings that Applicants should voluntarily provide
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copies of all pleadings, documentes, etc., in that case to the Licensing and CPA Boards. Applicants' failure l- to do so ...is considered by CASE to be further proof of CASE's contention in the O.L. and the CPA proceedings.
... CASE also believes that Applicants should now voluntarily provide copies of all pleadings, documents, etc., ...regarding matters such as this which are so obviously covered by the Board's oft-repeated and numerous Orders that Applicants are to keep the Board
- informed of potential significant information. July 8, j 1987 letter from CASE to the ASLB, at pp. 2-3.
1 I l l A copy of this letter is attached hereto as " Attachment 6".
i In light of the NRC staff's, Texas Utilities' and CASE's l failure to notify the Board of the Hasan allegations raised in attachment 4 and 5, and given this " Board's oft-repeated l
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7 and numerous Orders that Applicants are to keep the Board informed of potentially significant information," petitioner would likely have been granted leave to intervene so as to keep the Board informed of the perjury and other allegations raised in the Hasan proceeding in light of the fact that all of the previously admitted parties could not be relied upon I to do so and actually went so far as to cover-up during the July 13th hearing the Hasan perjury allegations contained in attachments 4 and 5. !
WHEREFORE, pe,itioner hereby requests that this Board t
re-open the record and grant him leave to renew his earlier motion for intervention status. Petitioner will further file, within 45 days, all necessary affidavits and other documentation concerning the above innumerated as well as additional safety allegations he intends to rely on before this tribunal.
Res ct submitt ,
i 4th ou Burn m 103 6th A enu Fort Worth, TX 7 101 1
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1 :rL gTED STAT gggitT LABOR-BEFORE Y . !
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JOSEPH MACKTAL, -
~) Case No. 86-ERA-23 Complainant, )'
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EROWN & ROOTi.INC., .-).
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, Respondent. 1)
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- SETTLEMENT AGR$EMENT Inc.. ,
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& Root,-
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WEEREAS Mr. Macktal's'.c= s..~...
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- kt'al has ihstitdtsd'.the'a o 's Department'- !
. WEEREAS Mr. 'Mac f action'against Ero . .
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Root his termination before the United St 1
42 U.S.C. S 5851 of Labor, alleging that ion Act of 19*14, ,
t the Energy Reorganizat . .
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(*Section 210*); ~
Mr. Macktal and Bro n.& withal Ro WHEREAS thc dispute between Macktal now desires to of ..i amicably . resolved and Mr.Root, without admission has been Brown & d/or the'; i draw his complaint Root, against Texas Utilitics Company an 4
liability by Brown & k Steam Electric Station 'I related.
other ovners of Comanche Pearogram, or thc' attorneys Peak"), or the SAFETEAM p !
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f TLY COITIDmrIAI.-
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_STRIC fficers, directors, managers, companics, successors, assigns, o mentioned co= panics, organi-f agents, and employees of the a orei h entitics and individuals
=ations and programs (all of uh cd to as "the Comanche Peak t f
hereinafter collectively referre and individuals")i co= panics, organizations, programs f the mutual promises
. liOW, THEREFORE, in consideration o h ' parties agree as follows:
. contained herein, t e t amount to, and shall no,t 1)
'ihis Scttlement.Agrec=ent does noliability or urongdoing on
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be construed as, an' admission h of?cak companics, org the part of any of the;Comanc e Horcover, l s defined above.
tions, programs or .individua s a ot amo6nt to,. and shall n this settlement Kgreement does n Mr. M.acktal concern
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~P G sI be construed as, an admi's.sion
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L cerr ts sof th:. s -lacti'on. . . -a general r$1 case (a't'tached
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ew ' he Peak companics,
-2)' .Mr,. Macktal thall execute hereto as Exhibit A) of all the Cocancdiv organizations, programs and in of or relating to from any and all liability arising Brownout & Root, the termination Mr. Macktal's ccployment with 2, 1986, or his resignation of his c=ployment on January Root.
uith Brown &
from his position in the above-captioned Mr. Macktal's representatives illic P. Garde 3)
Anthony h. Roisman and Ms. B and the Gove rr' action, Mr.
Public Justice (including Trial Lawyers for l
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gani=ations- of which Mr.
ment. Accountability Project,.the or e a part and'through-Roisman and Ms. Garde, respectively, ar t Mr. Macktal), heiteby, agree
.uhich they came to represen ktal as a witness or join.
that,they vill not call Mr. Mac tive or judicial Mr. Macktal as a party in any administraMs. Garde, Trial proceeding in which either Mr. Roisman, nment Accounta Lawyers for Public Justice or the Goverf them are ,
Project, or any combination o pposing any.of the i
future'may be, counsel or part es o s programs or indi-i Comanche Peak co= panics, organirat on ,ill Mr. Rois viduals as defined above; nor w do anything'to suggest or ,
or their respective' organizations y party, administra-otherwise to induce any other attorne ,judihial .tribu' ,
ty-g tive agency, or' administrative or-vitness or to Mr. Macktal as a Further, Mr. Macktal hereby agrecu-in such a proceeding. witness or a party.
will not volu,ntarily appear as lafurther agrees that.
that he .
in[any such proceeding; and Mr. Macktaking to compel if served'vith compulsory process scc he will in such a proceeding, }-
appearance or joinder d representative of Brown immediately notify the undersignewriting and thereaft/ !
or his successor, in
& Root, ny such reasonabic steps all reasonabic steps? including a Root,.
tives of Brown &
as may be suggested by the representa s.
to resist such compulsory proces e
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i AGREEMENT'betvcen the The: foregoing.provides the ent rebe. modified except b parties and this. AGREEMENT cannot ti,es hereto.
stipulation signed'by each of the par
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Billie Joseph Pirner Garde Macktal, for the.
- Government Accountability.
Project, and.herself s
41A /Roi, LXnth6ny eck .
/X_for manTrial Lawyers al, Josep for.e ic Justice,-and-himsell
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Richard X Walker for Brown and Root, Inc.
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This 2nd day of January,1987 .
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+ . SETTLEMENT AGREEMENT-This SETTLEMENT AGREEMENT dated as:, of
&z Hey 1988 is._y
" :by and between LORENZO MARIO POLIZZI..(hereinafter."Polizzia),
MAURINE ELLEN'POLIZZI, his wife and'NATALIE POLIZZI, his minor E daughter, by Maurine Ellen Polizzi, her mother and legal '
and GIBBS & HILL,.INC.
l guardian-(hereinafter *Co-Plaintiffs")
L ~ (hereinafter "Gibbs & Hill").
WHEREAS:
A. On or about May 12, 1987, Polizzi filed a complaint.with the U.S. Department of Labor, Employment l
. Standards Administration Wage & Hour Division, alleging that~
Gibbs & Hill engaged in discriminatory employment practices:in violation of the Energy Reorganization Act, 42 U.S.C. S.5851
- (Case No. 87-ERA-38) (hereinafter the " DOL Proceeding").
B. The U.S. Department of Labor, Employment Standards Administration Wage & Hour Division conducted an investigation and concluded, based upon said investigation, that there was probable cause to believe that Polizzi was discriminated against in violation of the Energy Reorganization y
Act.
C. Gibbs & Hill filed a timely request for a hearing with the Chief Administrative Law Judge, United States 4
03A13338 S7V3ddV 'N!WGV 30 33(340
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settlement.of'the claims'of Natalie.Polizzi,.a minor, as-set
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l- forth-herein. .
'Polizzi agrees'that he will'not voluntarily'
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L l- . cooperate with or testify on behalf of any entity or individual who has or may file charges of discrimination or wrongfu1~
employment practices against Gibbs & Hill or TUGCO, orftheir-respective parents, affiliates, subsidiaries, successors or
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assigns,'under the Energy Reorganization Act, the Atomic Energy ~
Act of 1954, as amended, or any other federal or~ state law, rule, regulation or theory, nor will he voluntarily testify'in or otherwise participate in any proceeding or investigation involving the Comanche Peak Steam Electric Station, before any state or federal court or administrative agency, including, but not limited to, licensing or safety proceedings or 5' investigations before the Nuclear Regulatory Commission and/or regulatory or rate proceedings or investigations before the Public Utility Commission of the State of Texas, except as required by lawful subpoena; p7ovided, however, that nothing in the foregoing paragraph shall in any manner be interpreted to prevent'Polizzi from informing the Nuclear Regulatory Commission of any and all safety concerns he may have relating to the Comanche peak Steam E19ctric Station.
- 8. Gibbs & Hill's personnel policy applicabic to all employees, present and former, provides that it shall release no information requested by a prospective employer without a
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' 15 , .Gibbs'& Hill shallLundertake in substantially the execution by(TUGCO of a General Release.'
Said General. Release shall
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form attached' hereto as Exhibit C.
d until'(a)-the conditions. set I
. not be deemed of fective. unless. an (b) the -f
. forth.inLparagraphs 5 and 6 herein are fulfilled and. !
iffs referred to in General Release of Polizzi and Co-Plaint l
paragraph 13. herein is delivered to TUGCO.
the parties have hereunto set
'IN WITNESS WHEREOF, 7
28d day of Ma 988'.
their' hands'and seals on.this
.// ix LORENZO MARIO POLIZZI A 0 MAURINE ELLEN POLIZZI # '
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' NATALIE POLIZZI ,
Maurine' Ellen Polizzi,'her-mother and legal guardian GIBBS & HILL, INC.
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-AEfI2A2II 2I 2 9 8 s E h 2- H a c h i a l, E I-Under the pains and penalties of perjury, I Joseph J. Macktal, hereby af firm that the following is truc and correct:
1)' My name is Joseph J. Machtal, Jr.
- 2) Between January 31, 1985 and January 2, 1986 I was employed as an Electrician and Electrical Foreman at the Comanche Peak Huc1 car Construction site in Glenrose, Texas by, Brown & Root, Inc. On January 2, 1906 I delivered to a Drown & Root general foreman, J. Rinddell. A true.and correct copy.is' attached hereto as Exhibit 1. In retaliation for delivering this letter, my employment with
-Brown & Root was terminated.
- 3) While working at the Comanche Peak site I developed concerns about the following problems which I believo threatened the quality of the plant's construction, violated l
Nuclear Regulatory Commission (NRC) regulations, and/or threatened the public health and safety:
i a) contamination of stainless steel conduit.
L b) Falsification of training. sheets and travelers; c) Improper accounting of documents and material;
' d) Impropor design, manufacture, and installation of electrical coduits, and safety related circuits (including Hilti bolts, and pipe supports);
c) Improper site modification of vendor supplied equipment.
- 4) I personally brought all of the above listed 1 .
po). 1tu.u; awa +-v-w x, e., . . . .
s 4'
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ll allegations to the NRC Staff during a transcribed confidential conference and during'a confidential'on-site Nonetheless, the NRC inspection of the Comanche Peak site.
failed to adequately address these concerns. I therefore believe thatLthese concerns continue to pose an unnecessary >
health and safety risk.
- 5) In addition, I have concerns that were not raieed with the NRC staff or_ Licensing Board due to the restrictive terms of a secret settlement agreenent entered into betwcon Texas Utilities and my attorneys, Billie Garde and Tony Roisman. These concerns include:
a)' The use of Kapton wiring and termination kits (including the design and installation of electrical pen 9trations) ;
b) SATETEAM's identification of confidential whistleblowers and the harassment and intimidation of employces who brought safety concerns to management and/or SAFETEAM; c) The ultra-vulnerability of key safety systems; l
d) Design problems related to back-up yafety l
systema; c) Improper attempts to silence witnesses and surpress information before the'NRC; r) . SAFETEAM's participation in and cover-up of safety concerns.
I was
- 6) After bringing safety cencerns to SAFETEAMr l' demoted and continually harassed and intimidated by 3
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i i ll management, culminating in a constructive discharge on-l January 2, 1986.
- 7) On rebunry 3, 1986-I filed a complaint under Section 210 of the Energy Reorganization Act against Brown & Root and Texas Utilities with the Department of Labor, known as 86-ERA-23. I was represented in 86-ERA-23 by Billie P.
Garde, Anthony Z. Roissan, Government Accountability Project (GAP) and Trial -Lawyers for Public Justice (TLPJ) . They elst stated to me that they would be representing me before the NRC Licaneing Board in matters related to Comanche Peak and before the Texas Employment' Commission (TEC) hearing regarding unemployment' compensation (upon information and belief this agreement is contained in a signed representation agreement). In violation of their express
- agrenme-t to represent me before the TEc, both Mr. Roisman and Ms. Gardn failed to prepare fc ' and attend the hearing.
- 8) In early February, 1986, I Was told by Ms. Garde and Mrs. Ellis on a number of occasions that I would be called L as a CASE witness before the ASLB.
- 9) In 1986 I nade a series of confidential transcribed safety disclosures to nembers of the NRC staff. I did not feel that the NRC staff properly addressed the safety concerns I raised at that time and felt that they would not do so anytime thereaftar. I wanted to testify before the ASLB about my safety concerns because I came to believe tha't I had to bypass the NPC Staff bureaucracy and go directly to the - ASLB if ny concerns Nere to be ' adequately resolved.
- 10) In 1986 I made a series of transcribed confidential safety disclosures to FRC Staff. I believe that NRC Staff 3
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failed to properly address the concerns I raised at that i time ~nor any time thereafter.
- 11) I- was told by CASE .and its attorneys that if my concerns were to be adequately resolved they would have to be raised before the ASLB.-
- 12) On November 18,.1986 I was in Dallas Texas to participate in the Department of Labor hearing on my case.
Two attorneys were present to represent me, Anthony Roisman, and Billie Garde.
- 13) on this day my attorneys, along with legal representatives of Brown & Root and tho DOL Administrative Lav Judge Vivian Murray met for a pre-hearing conference.
- 14) During the pre-trial conference which was held in chambers outside of my presence, I felt as though my case d
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was being tried in a back room without the testimony of witnesses or mycc1I. On several occasions both sides cano out of conference to obtain documents and evidence and then return to the back room. This back room " conference" continued throughout the >antire day. When I stated that I
' wanted to attend the " conference," Ms. Garde vehemently objected and flatly refused to allow to to attend.
- 15) During the course of the conference both Billie Garde and' Tony Roisman indicated to me that; a) Brown & Root's final settlement offer Vas
$35,000.00s b) If I did not accept the acttlement offer of
$35,000.00, I would have to pay GAP $12,000.00 before they could proceed with the hearing; and 4
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h c)' If I did not accept the settlement and I did not como up sith the $12,000, they would withdraw as counsel (as they had already done in my unemployment hearing), At that time both Ms. Gr.rde and Mr. Roisman To the best of my knew I was unemployed and indigent.
recollection, the terms of representation expressly stated that expenses were not due and payable until-after the case was settled. Yet, Billie Garde and Tony Roisman were demanding money to continue with my. case.
CAP, TLPJ, Dillie Garde, and Tony Roisman agreed to-represent ~me knowing that I.was. unemployed and unabic to afford an attorney.
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- 16) After considerabic pressure I agreed to settle my caso for-535,000. I understcod tha*. the $'5,000 settlement offer to be two separate agreements between Brown & Root and 64-myself. The first settlement vould be for $15,000 to b6 paid to me, and that a secend settlement would be paid to GAP in the amount of $20,000.00 to cover " expenses" after
- the case was resolved. .
- 17) I was informed by my attorneys that the Judge had ordered the parties to execute the settlement within 30 days.
- 18) Brown & Root's attorneys did not attempt to execute the settlement within 30 days. On or about December 26, 1986, I informed Billie Garde that I no longer wished to settle ny case and that I wanted to proceed with the trial.
- 19) on or about December 26th and 29th, 1986, I was; a) informed by my attorneys for a second time I had to pay $12,000.00 if I did not accept a settlement i
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Ms.. Garde and'Mr. Roisman were negotiating
.b)1 told that if I did not accept the terms of tho settlement- (which I had not even seen) . I would be sued for' breach of contract, would face serious financial burdens for the rest of my life,'and that I would be
~
billed by. GAP for: 512,000.00. Ms. Garde and Mr.
Poisman also warned that Brown & Root veuld sue me for refusing to sign the settlement and that they would not represent ne if such a suit occurred.
- 20) Nonetheless, I directed my attorneys to stop further settlement negotiations and prepare for trial. My attorneys refused to follow this instruction.
- 21) On December 26, 1986, I spoke over the telephone with Billie Garde, The following are verifiable exerpts of Mr -
a telephone conversation between Ms. garde and myself:
Joseph J. Macktal' I am not ccmcitted to any kind of a-settlement whatsoever...I'm going to the papers Tuesday (and) blowing this whole thing wide open...There is no settlement...
Billie P. Garde: You don't have that option anymore. There is a settlement.
I ain't signing...I Macktal: No there isn't.
don't want a settlement...I don't want you to sign any kind
. of'a settlement agreement.
Garde: Then you better be prepared to pay GAP the expense of...,
Macktal: Whatever it takes...I'm not settling a with them...I'm gonna expoco the whole thing in the paper.
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[I' And that's worta $15,000.00?
Garde:
Macktal: Yep, daat's worth it.
a Garde: I think you're making an absolutely insane decision. . . [T] hey're gonna sue you for breach of settlement . . .and that'll =ean you're gonna have to get lawyers.
Macktal: Let them sue me...
,Hacktal: I'm not breaching the settlement agreement. There was no settlement agreement...They did not its moot', it no complete the 30 day period...it's moot,
' longer exists.
Garde: You-don't have that option.
e * *
<> Garde I'm your lawyer, I know what I'm talking w -
about. You can not do this. You don't have the financial ability to do this because you don't have the ability to pay us....-I'm going to have to have Tony call you...
Macktal: I don't care.
Gardo: We've invested the expense of $12,000.00 We couldn't meet pay roic (and) that's a lot to us.
last vcak. Everything is waiting to get this settlement
-aney in order to make bill payments...You can't afford to absorb that kind of a bill. . .This is $12,000. 00.
- e
- Macktal: I have made arrangements to pick up the transcript [of my confidential deposition J gave to 'he NRC) .
from the NRC. The papers can't publish anything until the I
trail but the transcript (I can make) public information I to ^
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(Interrupting) You're not going to have any Garde: .
lawyers.
2
-Macktal: 'They breached the contract: I don't want, the deals off. I'm going through with ; because they 1
breached the contract and as far as I'm concerned I want to' go to trial. If they don't want to go to trial --
(Interrupting) Thors isn't going to be Garde:
a trial.
e e e Macktal: The settlement agreement ac far as I'm concerned is dead. Nothing happened and its over...
W 22) On December 29, 1986, I received a call from. Tony L Roisman. At that time I told Mr. Roisman that I vanted to go forward with the trial and terminate settlement negotiations. I stated to Mr. Rois=an that: "At this point I'm not agreeing to'any kind of settlement. Bring it back to where it was. I want to go to trial."
-23) During this December 29th conversation with Mr.
Roissan I told him that I had contacted some reporters and
.that I chose to expose the entire situation to the press.
Mr. Roisman then told na that I did not need to tell the press anything now because "the reportera who are covering the licensing hearings" would also " cover the came issuos" when my information was reported to the Licensing board, and that ny case was not "a speech issue."
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- 24) During this December 29th conversation I was also told if.I did not sign the settlement and chose to expose j the situation then the'following wou3d occur:
]; "You realize that will put you in a deep financial
' bind. . .they'll hold a judgment over you, they will I'
pursuc you .to the ends of the earth and if you are successful in smearing then in the press as you would
' like to do., they will pursue you to the ends of the earth. So wherever you go to work they'll have a judgment against you of $15,000, $20,000, $30,000 or
$100,000 and they'll garnish your wages on earth any place you get a job. They'll destroy your credit...and at some point you'll have to pay a lot of money at the end they will have won even bigger than today...becauco they're bigger they can beat up on you and because your smaller your not able to fight back. . . "
- 25) I then stated to Mr. Roisman that I still wanted to "go to trial." I emphatically ended the conversation With Mr. Roistan stating that the settlement was off and that I decided'and demanded to go to trial.
l
- 26) I was misled and signed the sett'icnent under duress. I did not want to settic the case, but I thought I had no option. A copy of the " Settle =ent Agreement" and a signed general release is attached hereto as Exhibit 2.
Paragraph 3 of the settlement Agreement prohibited me from voluntarily appearing as a witness before the Atomic Safety It also prohibited and Licensing Board or the NRC.
attorncys for CASE (GAP, TLPJ, Ms. Garde and Mr. Roisman) from calling me as a witness for CAS'E or otherwise inducing 9
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,NM any other attorney, party, agency or tribunal to call me as a witness. It also required me to take all " reasonable" steps which Brown & Root instructed me to take so that I cannot appear as a compulsory witness. Essentially.the settlement agreement silenced me from appearing before the NRC.With additional safety concerns.
- 27) On May 11, 1987, the Secretary of Labor issued an
' Order in case 86-ERA-23 requiring the parties to submit a copy of'the confidential settlement agreement. (A true and exact copy of this Order is attached as Exhibit 3).
- 28) Evidently my copy of the Crder was mailed to me See a copy of a signed return-c/o Ms. Garde and GAP.
receipt included in Exhibit 3. A copy of the Order was never forwarded to ne and I did not learn that such an order was issued until August of 1988. I was unaware that the Secretary had requested me to provide a copy of the settlement agreccent to the Secretary or that I was in i
breach of the Secretary's Order.
l
- 29) In or about June, 1987, I called Billie Garde to l
o" At that time she told me that my obtain documents.
settlement van pending before the Secretary of Labor and that the Secretary had requested some more information about the settlement. 3 was not informed that the Secretary had issued an Order and requested to see a copy of the settlement agreement itself.
- 30) After speaking Vith Ms. Garde, but not knoVing that the Secretary had requested to :see a copy of the octtlement, I sent by first class mail a pro se motion to l l
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'Nd il l the Secretary requesting that~the settlement be set aside.
(A true and correct copy of this notion is attached as Exhibit 4).
- 31) I wrote the attached notion out of desperation because I had been forced into signing the settlement against.my will. I mailed the motion in an attempt to gain justice and expose additional safety concerns that I was prohibited from exposing under the terms of the secret settlement agreement.
- 32) I mailed the attached notion without the advice'of F r. Roisman and Ms, . Garde .or any other counsel. I did so because I believed that Ms. Gards and Mr. Rosinan would not act to overturn the oppressive terms of the setticzent agreement and I sent the motion so I could be allowed to contact interveners and the NRC with additional safety CCncerns.-
This affidavit, consists of eleven pages and is hereby executed by,my 1.and this 9 day of $df f _, 1988.
J MM h* Y eph J# Macktal, Jr. /
04/MAK 11 .
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, ine UNITED-STATES OF AMERICA 5 NUCLEAR REGULATORY' COMMISSION Before Administrative Judges:
Peter E. Bloch , Chairmar.
Dr. Kennetn A. McColiom Dr. Walter H. Joroan OccKs '.cs 50 445 In the Matter of 50-446 TEXAS UTILITIES GENERATING COMPANY, et al. (Application for Operating License)
(Comanche Peak. Steam Electric Station, December 28, 19P.3 Units 1 and 2)-
MEMORANDUM AND ORDER (Ouality Assurance for Design)
[The parties are prohibited from informing enyone aoout the existence ,or, content of this Memorandum and Order prior to 12 noon Ea: stern Daylight Savings Time, December 28.]
The record before us casts doubt on the design auslity of the Coranche Peak Steam Electric Station (Comanche Peak), both because the Texas Utilities Generating Company, t e_t, al. (applicant) has not delions tra ted the existence of a system that promptly corrects design satisfactory deficiencies and because our record is oevoid of e explanation for several design cuestions raised by the Citizens Association for Safe Energy (CASE). We suggest that there is a need for 1
J an independent design review and we requ;re applicant to file a plan j
that may help to resolve our doubts.
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frictional loads between pipes and supports (CASE Exhibit 659H, p. 5). Messrs. Doyle and Walsh . seem to feel that had the design basis inputs and interfaces been adequate, these differences would not have occurred. They further state that since ' such differences have occurred, the Applicants have violated NRC regulations, as well as standards endorl;ed by the-NRC, including ANSI N45.2, " Quality Assurance Program Requirements for Nuclear Power Plants." (See, e.g., Tr. 2973, 3706, 3852, 3864, 3925, 6984-85). Messrs. Walsh and Doyle also stated that they believed that internal interfaces within the SSAG [ Site Stress Analysis . Group] were inadequate, since th re was no clearly delineated line of, communication' and responsibility in .the Applicants' engineering guidelines', in violation of ANSI N45.2.11 (Tr. 6984-87, 6989).
The Board ' disagrees with Messrs. Doyle's and Walsh's conclusions about the Applicants' organizational and design interfaces in the pipe support design area. It is true that there are differences in design approaches between the Applicants' three pipe support design organizations. These differences appear to be the outgrowth of the Applicants' ea utilization three separate pipe support design organizations.gg An early decision was made by the App ~licants that pipe support designs .would be_ contracted out to companies who_a re_._iin_ dl~_ business-of- designing __.aI)d' fabricating pipe support components. In order to satisfy ASME C6ds Requirements and-to-setTba!Ii~s for competitive bidding between the companies, it was necessary_toJrovide them tti_tu the overall design criterYYo~be met.
~ ~
The Gibbs and Hill ;
document ~~WhiEh acc5mpTishes this objective was Specification -
MS-46A. Contracts _f.or._ the ' de:ign of piyufpsrts at CPiqs., "
[ Comanche peakJ were_ awaM20 iTT-GrJJme.l_ Land NPSL i n, acfd'i'tlon, fpWic3ts _ created what_ became the PJE, which ' also utilTied , Specification MS-46A. Since neither Specification
~
MS-46A nor Ehe KSHE CidT dictste in detail the means by which an engineer is to satisfy the design criteria, differences in engineering approaches occurred between the three nipe_SJupport groups. (Staff Exhibit 207 [ SIT Report]garallel
, p. 12; Applicants' Eihibit 142, p. 9).'
1 The fundamental issue for this Board to resolve is i whether these differences in design approaches represent a j l
169
[ Footnote 18 in original:] The Applicants also employ 'a fourth organization for the design of structural supports fprl cable trays ' )
and conduits (NRC Staff Exhibit 207, p. 12). l i
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~ safety or engineering concern, or if they ! violate any NRC ,
regulations, Staff . guidance . or Lother -NRC-endorsed L standard. 1 The Board believes that ANSI N45.2, and N45.2.11 in particular ,' .
are. relevant in resolving this issue. .The overall purpose'of !
ANSI N45.2.11 is to assure that each. design organization has a. j !
.cle m._.do cume_n.te.d_s cope _ of res pon s i b i l i ty antthat there are documented paths for cornmunication - when < the responsibility s}[ ins. ffoK~.o neargarligtIbTi to the hther__oiE_is shar#Dy, l -]
both. N45.2 is a general requirement document essentially. .
equivalent to Apgdix B of' .10 CFR 50 while N45.2.11.is -
specific to those design controls requirements contained in Criterion III' of. Appendix B and N45.2. .The NRC has endorsed N45.2 via Regulatory Guide 1.28, and endorsed N45.2.11 via- i a Regulatory Guide 1.64. (Staff Exhibit 207, p.'12).
i The evidence establishes that each of ' the 'three pipe. :y support design organizations . bas __.its_._own specjfic _ scope of responsibility since feach has been ass _igne.d_the responsibility' for._a_specifi c._ group _oQorts . (Staff Exhibit-207, p.~1'3;.
Applicants' Exhibit 142, p. 9)-' Thete_isso._need _for sro_s_s.
' communication between the three groups since they share- no c65Loh iiili3EZdii.igrLtesponsib1.1ity.
i Furthermore-~the lipe's of communication between-the_ Applicants,_ Gibbs_.andJillL and. 1 each pi pe____s uopo rt dgsign organ.ization a_re clear 76d '
' documented. ~(Id.) There is .also no need for inti!RFiial' interfaces witIiin a design or support organization, under ANSI ,
N45.'2.11. (See,e.g.,Tr.. 6987-89). Even if we believed that interfaces between the SSAG, and the STRUDL subgroup were necessary under ANSI requirements, we seriously doubt whether there wouiJ be any safety significance with ' regard to CPSES, in light of the clear evidence that the pipe support design groups are well aware that- they are ultimately responsible for '
assuring that pipe supports meet all applicable NRC and ASME Code requirements (Tr. 6989-92).
Jhe_ Board coneludes__that 'the Applicants have acequately d~efined a n d d ocumente d __th e_Je s pbiis ibi TiTi e s _ a n d__.pa tli's~~Tf
_c ommu n i ca tT6ni b etween.__Gj bb s__ &._Jiill_.an d_._the _ pip e_ svMt ge_ sign groupL c No NR._C_ re.gula.tiol h as _ been violated, and _ the .
programmatic objectives of Subsecticn NA of the ASvE i Code, N45.2 and N45.2.11 have been satisfied. (Staff Exhibit 207,
- p. 13.)
170 'The Board changed this word in the staff document because of our -
belief that- Criterion III is not the only design control requirement found in Appendix B.
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5 ATTACHMENT 4 3
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g s THE UNITED STATES OF AMERICA BEFORE THE SECRETARY OF LABOR 1'
l In the Matter of )
)
S.M.A. RASAN, )
)
Complainant )
)
- v. ) Case No. 86* ERA-24
)
SUCLEAR POWER SERVICES, INC. )
STONE & WEBSTER ENGINEERING CORP., )
TEXAS UTILITIES ELECTRIC CO., INC.,)
)
Respondents. )
)
BRIEF TO THE SECRETARY OF LABOR I. The Record and Pleadings Before the Administrative Law Judoe Demonstrate that Mr. Hasan Must Prevail Complainant filed findings of facts and conclusions of law l
in'this case before the Administrative Law Judge (ALJ). These pleadings carefully cited to the record and conclusively demonstrated the following:
(1)- Mr. Hasan put forth a prima facie case; (2) Mr. Hasan engaged in protected activity; (3) Respondents failed to demonstrate that the actions taken by Mr. Hasan, independent of protected activity, would have resulted in discipline.
This case can be resolved on very narrow hnd straightforward grounds.
The sequence of events leading up to Stone & Webster's
- - - _ _ - - - - '_ :n
i b A.
refusal to hire Mr. Hasan at Comanche Peak.is uncontested. To i summarize the post-trial pleadings:
(1) On the basis of an initial interview and his work record, Mr. Hasan was approved for hire by Stone & Webster. Tr.
576-577.
(2) That Stone & Webster asked a manager of Texas Utilities (John Finneran) for his comments about those employees approved for rehire. Tr. 576-77.
(3) That a John Finneran, a manager with Texas Utilities advised Stone & Webster not to rehire Mr. Hasan. Tr. 27.
(4) Acting on the advice of Mr. Finneran, Stone & Webster did not hire Mr. Hasan. Tr. 576-77.
(5) But for Mr. Finneran's negative assessment, Mr. Hasan would have been hired by Stone & Webster. Tr. 576-77.
(6) That Mr. Finneran based his decision not to recommend Mr. Hasan for rehire upon the advice of a Mr. Jay Ryan, another manager with Texas Utilities. Tr. 28, 35, 533.
(7) That Mr. Ryan stated, in sworn testimony, that he based this negative assessment on Mr. Hasan's internal complaints regarding poor engineering practices and on an argument that Mr.
Hasan had with a Mr. Barry Hill. Tr. 538-39.
(8) The Hill-Hasan disagreement referred to above was based on a quality control problem and that during this disagreement i
Mr. Hasan threatened io report the disputed engineering problems '
to the NRC if Mr. Hill did not fix them. Tr. 273, 538, 532.
This is the case in a nutshell. The undisputed record demonstrates that the sole motivating factor in Texas Utilities' a
i
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recommending Stone & Webster not hire Mr. Hasan was based on Mr.
Hasan's internal whistleblowing activities and a threat to take the internal matter to the NRC if Texas Utilities did not properly resolve the controversy.
The case is simple. Once Mr. Hasan's internal complaints are viewed as protected activity Mr. Hasan must win his case.
The Secretary of Labor should carefully review these pleadings and issue a decision in support of Mr. Hasan and remand the case for a decision on damages.
II. Mr. Hasan was Retaliated Against Because of His Whistleblowing Activities
- 1. Introduction.
Knowledge on the part of TUGCO's management that Mr. Hasan n
was rejecting pipe support engineering packages due to safety-related design deficiencies is the cornerstone of Mr. Hasan's case.
Knowledge on the part of Mr. Jay Ryan (Lead Engineer for the Large Bore Pipe Support Engineering Group, Tr. 532) and Mr. John Finneran (TUGCO's chief pipe support engineer for the entire plant, to whom Mr. Ryan reported, Tr. 18) is critical because it is uncontested that Mr. Ryan and Mr. Finneran jointly raade the decision to ban Mr. Hasan from the cite. Respondents' Finding of Facts (hereinafter " Respondents' FOF") Nos. 33-36.
Mr. Ryan and Mr. Finneran chose to ban Mr. Hasan from the site because they did not intend to adequately evaluate the l
L
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ l _ . _ _ _
. ' safety concerns Mr. Hasan had raised over the years. This resulted in a: great deal of animus toward Mr. Hasan on the part 1
1
- of Messrs. Finneran and Ryan. For example, Mr. Hasan rejected 1
more PSE design packages due to safety-related design deficiencies than anyone else and his rejection of pipe supports b cause considerable delay of the certification of the pipe support design. Also, Mr. Hasan detected design deficiencies in both NPS and PSE design criteria, problems which no other line engineer on site detected or called to management's attention. Mr. Hasan's expertise and dedication as an engineer led to the uncovering of numerous safety defects in the design of-the plant.
Respondents, on the other hand, deny that Mr. Hasan detected any design deficiencies or that he ever rejected a pipe support because of a design deficiency in the criteria. See Respondents' FOF 54, 70, 72, 74, 87, and 88. As such, Respondents argue that 4
Mr. Ryan and other acmbers of management could not have had, and in fact did not have, any knowledge of Mr. Hasan's rejection of packages due to improper design.
Below Complainant will demonstrate the Respondents' case is based on false statements and apparently perjured testimony; and that Respondents' counsel apparently relied on perjured testimony to prove its case. The record will bare that Complainant constantly raised design deficiencies to management and likewise rejected to management pipe support packages due to safety-related design deficiencies and that as a result of this Mr.
Hasan was banished from the Comanche Peak site and blacklisted in the nuclear industry.
.---.---------_-----.------------J
.. 2. Respondents Covered-Up Safety Concerns.
From January 1982 to August 1985, Hasan brought many safety concerns to his superiors at the Comanche Peak site including, Ram Hemrajani, Dave Rencher, Michael Chamberlain, Harvey Harrison, John Finneran, and Mike McBay. Tr. 230. These safety concerns are now characterized by the NRC as 65 quality assurance allegations about Comanche Peak. CX 14.
It is beyond question that Mr. Hasan constantly raised safety concerns of immense magnitude. In addition to stiffness values of class 1 pipe supports (Tr. 117-118, 148-149, 234-237, 285-286, 393), they included: punching shear (Tr. 230-234);
negligent design review (Tr. 75, 365); Richmond Inserts (Tr. 238-240); Cross-over of PSE design packages to NPS (Tr. 72-75, 240-241, 120-121); Minimum Weld Requirements (Tr. 168, 190), and M numerous others safety concerns identified in CX 14. For a more detailed account of Mr. Hasan's whistle-blowing activity, see Complainant's Proposed Findings of Fact at pp. 13-19, 28-35.
Nonetheless, Respondents falsely assert that Mr. Hasan "did not have any ' safety concerns' about the site" Respondents' FOF 54, that "he never claimed that the presence of different or
inconsistent' design criteria in any way affected safety at Comanche Peak," Respondents' F0F 70, that the " technical pc'nts be raised did not rise to the level of safety concerns" s
,' ' Respondents' F0F 74, that " Texas Utilities [did not] have any
!. information that Mr. Hasan had safety concerns about Comanche
- 1. ' . i! ' Peak," Respondents' FOF 87, that Mr. Hasan had not " expressed any safety concerns to Texas Utilities management," Respondents' FOF 88,.and that " Texas Utilities management was always responsive to i
any concerns raised'by engineers" and " encouraged engineers to bring such concerns to management's attention." Respondents' FOF 72.
These findings of fact by Respondent are erroneous, and in violation of FRCP 11. For example, Respondents assert that they
" encouraged" enoineers to bring safety concerns to management's attention, Respondents' F0F 72. The supporting citation [Tr. 122 (Rencher)] does not support the proposition it is sited for. ;
Rather Mr. Rencher's testimony concerns management's attempt to i.ntimidate line engineers from going to the CASE or the NRC with safety concerns. In particular the testimony concerns Mr.
Rencher's intimidation tactics used to halt the flow in information to CASE (the citizen intervenor organization) and the NRC.- It is uncontested that Mr. Rencher began accusing line engineers in his group as being " spies" for CASE, with the intent of stopping them form contacting CASE with safety concerns. But beyond taking Mr. Rencher's testimony out of context, Respondents' assertion flies in the face of the unrefuted testimony that Mr. Hill personally singled out Mr. Hasan as a" spy" for CASE and intimidated by management after he was
4 identified as a " spy". Tr. 270./l Respondents paranoia of engineers going to the NRC or CASE l so frightened Texas Utilities that managers were allowed to l-openly intimidate employees attempting to make such contact.
Indeed, Respondents' paranoia is so complete that Respondents concluded in their Reply Brief that "in fact it is clear that, at least in [the case of Messrs. Walsh and Doyle), CASE had covertly I
employed" spies to " collect.information" while working at the site (Walsh and Doyle are the two leading ex-employee engineer-whistleblowers at Commanche Peak). Reply Brief at p.10, FN 11.
Beyond the fact that this allegation was not raised anywhere in the record, it is patently untrue and false, and was made with the malicious intent to mislead the tribunal. This knowingly false statement will be the subject of a motion for FRCP Rule 11 sanctions.
w 1/ Because Mr. Hasan's testimony was unrefuted, an adverse Inference that Mr. Hill made the assertion is appropriate.
Furthermore, Respondents, in their reply brief, knowingly mislead the court by asserting that Complainant's failure to call Mr.
Hill to the stand to corroborate Mr. Hasan's testimony is indicative of the fact that Mr. Hasan's assertion was false.
Respondents then assert that Mr. Hasan's " uncorroborated oral testimony about his purported utterance to Mr. Hill could [not) be believed." Reply Brief at 4. This is an out-and-out misrepresentation of the facts. The truth is that Respondents' 4 own witness, Mr. Chamberlain, corroborate Mr. Hasan's testimony that he told Mr. Hill that he would go to the NRC [Tr. 192].
Furthermore, Mr. Rencher testified that he spoke to Mr. Hill about " spies" and that Mr. Hill agreed with Mr. Rencher that
" spies" tor CASE were on site [Tr. 116]. Respondents
- false assertion is sanctionable conduct pursuant to FRCP Rule 11.
1
. Respondents define Mr. Hasan's " disruption" as a personal
' problem. In so doing they confused Mr. Hasan's telling management that he was about to "go to the NRC" as " people problems." Blowing the whistle on errors in the design cf a nuclear power plant is not a " people problem," it is protected activity. Mr. Hasan was cognizant of the fact that management had ordered the engineers to use false values in computing stiffness as well as numerous other safety concerns. Mr. Hasan fought long and hard to correct those and other problems. The more Mr. Hasan protested the more management openly intimidated Mr. Hasan from contacting the intervenor and the NRC. When it -,
j came time to correct the problems (i.e. when Stone and Webster arrived on site), Mr. Hasan was banished from the' plant so management could continue to deceive the NRC as to the actual extent of re-work need to correct the errors in the plant's pipe
- ' support design (which Stone & Webster had been brought on site to correct).
III. Jay Ryan Submitted Perjured Testimony Concerning Mr. Hasan's Rejection of PSE Pipe Support Packages Between 1982 and 1985.
In an attempt to prove their theory of the case, Respondents' counsel apparently allowed their star witness, Jay Ryan, to commit perjury. Mr. Ryan apparently perjured himself when he testified under oath that Mr. Hasan, from January 25, 1982 until May 1984 (the time frame Mr. Hasan worked under Mr.
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., Rencher in the NPS group), never rejected.a single PSE-designed pipe support package. The truth is that Mr. Hasan rejected scores of PSE design packages during this time and Mr. Ryan knew of this and discriminated against Mr. Hasan because of it.
The rejection of pipe supports is a major key to the proper understanding of this case. Unfortunately, the ALJ's Recommended' l' Decision and Order is wholly defective on this account, and as 1
such it'is evident that the ALJ failed to understand the very l premise of Complainant's case.2/
While in the NPS group, Mr. Hasan rejected numerous PSE packages to Mr. Ryan by attaching a memo directed to Mr. Ryan personally. Nonetheless, Mr. Ryan denied that Mr. Hasan rejected
. a single such package. To demonstrate that Mr. Hasan was telling the truth and that Mr. Ryan is lying will require some additional background.
a 2/ The ALJ found that Mr. Hasan "would repeatedly ' reject' calculations of other engineers because he checked them against another contractor's set of criteria," and that: "It was the accepted practice at the time for each contractor's calculations to be checked according to that same contractor's set of criteria," but that Mr. Hasan chose to " repeatedly ' reject' calculations of other~ engineers because he checked them against another contractor's set of criteria." The ALJ concludes that because he chose to apply the wrong set of criteria (which is not true) Mr. Hasan's rejection of his fellow engineers' work became a source " continuing disagreement" with the predictable end result of " personality" clashes with his co-workers.
The ALJ's finding are factually at error with the record because Mr. Hasan never applied the wrong criteria to a pipe support package; rather he only applied the criteria he was instructed to apply. The,re is no testimony any where on the record that Mr. Hasan ever applied the wrong criteria to a fellow engineer's work. Rather, Mr. Hasan was discriminated against because he constantly identified design deficiencies in the.
design criteria itself and rather than because he applied the wrong set of criteria to his collegues' work.
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- 1. Background The entire time Mr. Hasan worked at the Comanche Peak site, i
the pipe supports were being designed and constructed by three separate groups. Each group had established its own design guidelines, known as design criteria, and every pipe support design originating out of a given group could only be checked against that group's design criteria. The three design groups on site' responsible for the design and review of pipe supports were (1) NPS (or NPSI) Unit 1 group, (2) ITT-Grinnell group, and (3) the PSE (or Pipe Support Engineering) group.
Thus, the NPS group was only to review NPS-designed pipe supports using the NPS design criteria. Likewise, PSE group could only review PSE-designed supports against PSE criteria, and ITT-Grinnell was to evaluate ITT-Grinnell designed supports using only ITT-Grinnell criteria. Respondents' FOF No. 69. It is thus e4 axiomatic that NPSI, PSE, and ITT-Grinnell were not to transfer pipe support packages between themselves for certification uad under no circumstance were pipe supports to be qualified under two sets of design criteria.
As even Mr. Ryan admits, if NPS reviewed PSE pipe supports, then "something would be wrong." Tr. 550.
The PSE group was under the watchful eye of Jay Ryan, whereas the NPS group was supervised by David Rencher. When Mr.
Hasan arrived at Comanche Peak, he was assigned to the NPS group and was placed under Mr. Rencher's supervision. Mr. Hasan was
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assigned to the'NPS Unit lLgroup from January 25, 1982 until mid-g- May;' 19 8 4.
L During~this time Jay Ryan and. John Finneran, in order to L ,
meet production schedules, engaged in,a' scheme. They regularly sent certain PSE design packages to NPS'for certification.
l i Soon.after his arrival, Mr. Hasan-began to raise'as a
-e concern to Mr. Rencher the fact that different criteria were 1 '
L L-being applled to the same pipe supports As early as 1982, Mr.
Hasan complained to management that NPSI was. reviewing PSE-designed pipe supports and applying NPS criteria to'those supports.- Tr. 238-240 (Hasan).
Mr. Hasan's-chief concern was that PSE and NPS used different' design criteria to analyze Richmond Inserts (steel rods embedded'into concrete to which pipe supports are anchored). The result of?this was that the Richmond Inserts designed under PSE
~
. guidelines would come-into the NPS group for certification and
'during the certification process would fail under the NPS criteria. ;hese pipe supports were then rejected back to PSE with al memo attached to the packages explaining why the support failed. These memos were addressed directly to Jay Ryan.3/
3/ -One of these memos is attached here to as Exhibit 1. It is the only such memorandum in Complainant's possession and was found by chance after Mr. Hasan located it stuck between the pages of.a book he removed from the site. Prior to that Mr. Ryan searched all of.Mr. Hasan's material leaving the site and removed all other copies of similar speed memos. The facts surrounding this memo will be the subject of a forthcoming Rule 11 motion.
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. Once the rejected pipe support package was back in Ryan's hands,
- ,' the package would often be certified in the PSE group without solving the problem raised by NPSI line. engineers. Tr. 241 (also see Rencher Depo Tr. at pp. 251-252 wherein Mr. Rencher testified that minimum weld requirement violations also resulted in the rejection of PSE packages by NPS back to the PSE group).
As Mr. Rencher openly admitted during his deposition:
Q: [By Mr. Kohn) ... Do you kr.ow if Mr. Hasan could not certify NPS Richmond insert [ design] criteria on some of the (PSE) packages he as checking [wtile in NPS]?
A: [By Mr. Rencher] He could not certify scme of the packages because of the NPS criteria on Richmond Inserts, yes.
Q: Did you take those packages to the PSE group for certification? * *
- A: Well [Mr. Hasan would) attach [to rejected PSE packages) a memo [e.g., see Exhibit 1 attached hereto) to (Mr. Ryan stating that] the supports were rejected for the following reasons, or something of that nature, and explained what the problems were . . .
Q: And would the PSE group then certify the packages?
i A: . . . Yes.
Q: Would they often certify the package without making any changes?
MR. WOLKOFF: If he knows.
A: . . . yes.
[Rencher Deposition Tr. at pp. 96-97, emphasis added) t
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Q: Are you aware Mr. Hasan could not certify NPS
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Richmond insert criteria on some packages?
- t A
- - I'm aware that he could not certify some of the supports because of the Richmond insert criteria, yes.
Q: Did you take these packages to the PSE group for certification?
A: Those packages were rejected from the NPS group to the PSE group. (Rencher Deposition Tr., at p. 167, emphsis added)
Mr. Hasan continually rejected PSE pipe supports because of the inconsistent criteria concerning Richmond inserts. He would reject these packages directly to Mr. Ryan or Mr. Rencher (not line engineers).
Mr. Hasan's chief concern was that since Richmond Inserts were being analyzed under different design criteria, a
" progressive tailure of the piping system" (i.e., domino effect) coulo occur. Mr. Hasan fear was well grounded because if a progressive failure of the Richmond inserts ever occurred, a melt down could easily. follow.
- 2. Perjury.
Rather than confront the reality that Mr. Hasan was rejecting more PSE pipe supports than any other engineer in NPS, Mr. Ryan was allowed to testify that Mr. Hasan had never rejected a single PSE pipe support while in NPS.
Mr. Ryan testified that NPS never certified or rejected a k
4 13 -
PSE' pipe' support. More specifically, Mr. Ryan te.stified that Mr.
,- Hasan never reviewed a PSE pipe support while assigned to the NPS group. As the transcript reflects:
Q: [By Mr. Mack) And were they ever reviewed by anyone at N"S?
A: [By Mr. Ryan) No...NPS would have reviewed their original designs. Personnel in PSE would have reviewad PSE designs.
Q: Well, what if, in fact, what occurred was something came'out of PSE and it was being reviewed by NPS?
Would that create a problem?
A: It wouldn't happen.
Q: It would never happen? l A: No.
Q: Okay. So that while (Mr. Hasan) worked [in the NPS group) rx) package designed in your group [PSE) would ever be reviewed by Mr. Hasan.
A: That is correct.
Tr. 540-541.
Q: Are you certain that none of your [PSE] packages were ever reviewed by Mr. Rencher's [NPS) group during the time...Mr. Hasan was working there?
A: There were separate contracts. The original PSE designs were reviewed by PSE. Tre original NPSI designs were reviewed by NPSI.
Tt. 549-550.
f _ _ _ _ _ _ _ _ _
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- Mr. Ryan's testimony was clear and unequivocal -- that Mr.
Hasan never reviewed a PSE pipe support while working in the NPS group. This testimony is consistent with his sworn and signed deposition testimony which reads:
0: [By Mr. Kohn) Did you know that Mr. Hasan was rejecting packages from your group?
A: [Mr. Ryan) No. Why would he be?
0: Did Mr. Hasan reject PSE packages due to inconsistent'
, criteria (between] NPS guidelines [and PSE guidelines)?
A: He didn't review any PSE packages.
d Q: ...your testimony is that Mr. Hasan reviewed no PSE packages?
(footnote can't) .
A: [Hasan] only reviewed NPSI packages when he was in the NPSI group.
Q: [D]id Mr. Hasan ever reject a PSE package that had already been certified because it did not meet NPS guidelines?
A: You can't cross guidelines... yon don't cross design guidelines to review packages.
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L;, Af,.. Mr. Ryan's- testimony was knowingly. f alse~ when- madea This g 4 tribunal;need'not look any farther than.the hearing testimony-of
'Mr.'Rencher to; support this proposition:.
[By Mr. Mack)
~
Q: ..[W]ere you aware whether or not Mr.
.Hasan was rejecting Mr. Ryan's pipe s.jport engineering
' group [PSE) pipe supports while working in your-group
.[NPS]?
.c A: [Mr. Rencher] There were pipe supports that were.
rejected.out of my group, and I am certain'Mr. Hasan 3:
/
had reviewed some of those.
Q: And were they coming from Mr.'Ryan's group [PSE]?
A: Yes, they were.
Q: <And when Mr.:Hasan rejected-Ryan's pipe support packages... would Hasan attach a memo to those
' packages?.
A: ,Yes.'..
Q: 'And (Hasan] would sign those memos rejecting [Mr.
Ryan's PSE. packages]A: Yes.
Tr. 120-121--(emphasis added).
I Beyond the testimony of Mr. Rencher, Messrs. Ravada and Hasan confirm the fact that it was common practice foi Mr. Ryan
'to send PSE packages to NPS for certification. Mr. Ryan's 1
unyielding denial, compared to the complete contradiction by .I Messrs. Rencher,'Ravada, and Hasan [Tr. 88, 120-121, 125, 130, 239, 275). makes-it. impossible to conclude anything but that Mr.
.Ryan repeatedly.and knowingly lied under oath.
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=. The perjured testimony,of Mr. Ryan was expressly called to
.f . the attention.of the ALJ. See, Complainant's Proposed Finding of
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Fact.at 33-35, 52. The ALJ, evidently misled by false statements' made in Respondents
- counsel's Reply Brief, failed to address this glaring contradiction when rendering his Recommended Decision'and Order.1/
4/ Respondent's Reply Brief contains dozens of false statements, some of which cre as follows:
- 1. P. 2, FN 2. States that Mr. Hasan's counsel submitted the Mr. Hasan's 65. concerns to the NRC in May 1987. . There is not one shred of evidence on the record to support that statement. Rather, the statement is contrary to the established record that Mr. Hasan's concerns were given to the NRC in January, 1986.
- 2. P. 4, para. 2. Claims that Mr. Hasan's testimony was
" uncorroborated" concerning his " purported utteranc e to Mr.
Hill" that he would go to the NRC. This is an outrageous statement given that Respondents' own witness, Mr.
Chamberlain, testified that Mr. Hasan would have constant
" outbursts" in Mr. Hill's group stating that he was about to "go to the NRC." Tr. 192.
- 3. P. 7. Mr. Wolkoff apparently relies on his own false or uncooperated statements to impeach Mr. Hasan. In in effect Mr. Wolkoff testified tnat Mr. Ravada had contradicted l himself on the stand because he had told "the opposite of what he had informed Respondents' counsel prior to the trial." This statement constitutes an unethically ;
questionable practice of law. See Jackson v. United States, 297 F.2d 195, 198 (D.C. Cir. 1961 (concurring opinion).
i 4. P. 7, FN 7. Mr. Hasan had "a bad employment record."
E Respondents were forced to stipulate that Mr. Hasan had a better than average employment record. Tr. .
(Footnote Con't on next page)
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- 5. P. 8, FN 9. Respondents counsel assertn that Mr. Hasan did not raise improper stiffness values during the August 19th meeting.
- 7. P. 10, cont. of FN 11. " CASE had covertly employed two persons at the site to collect information." An absolute falsehood with no basis in fact.
- 8. P. 11, FN 14. Mr. Hasan's " inconsistent criteria peeve was by that time entirely moot." An absolute misstatement. See letter from Mr. Counsil admitting that Mr. Hasan's concern over stiffness values was a reportable violation of 10 CFR 50.5S(e).
- 9. P. 12. Mr. Hasan only rejected packages to line engineers.
False. Mr. Hasan rejected PSE pipe supports directly to Mr.
Ryan himself. See, Supplemental Response to Discovery, August 13, 1985, a copy of which is attached hereto as Exhibit 1. This document is a copy of one of dozens of memos Mr. Hasan sent directly to Mr. Ryan.. There is no truth to the allegation that Mr. Hasan only rejected packages back to line engineers.
- 10. P. 13, FN 16. Same as p. 12.
- 11. P. 14, cont. FN 16. Technical issues had "long ago been resolved" when in fact management was actively covering up
.the concerns Mr. Hasan raised years after he first identified the problem to management, and years after Mr.
Hasan left the site.
- 13. Respondents conclude that the NRC had determined that Hasan's concerns about "STRUDL" were not safety-related.
This is contrary to the NRC letter to Respondents, dated January 6, 1988, stating that Mr. Hasan's allegations were substantially correct. This letter is attached hereto as Exhibit 2. i 1- !
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. 3. Respondent's Counsel Made False and L Misleading Statements to Defend Against Complainant's Attack on the Credibility of Mr. Ryan and These False Statements Misled the ALJ In response to Complainant's Finding of Facts (wherein the problems with Mr. Ryan's testimony were pointed out, see Complainant's F0F at pp. 33-35, 52), Respondents' counsel explained to the Court that Complainant's attorneys had mislead the tribunal with " ambiguous" phraseology and that any contradiction elicited between Mr. Ryan's and Mr. Rencher's testimony was due to " Complainant's counsel's inartful .
phraseology" at trial -- not because Mr. Ryan lied.
Respondent's counsel went on to assure the Court that there was " absolutely no discrepancy" between~Mr. Rencher's and Mr.
Ryan's testimony. Respondents' Reply Brief at 16.
Respondents' counsel argues that Mr. Rencher " interpreted PSE group to mean PSE field group" and therefore Mr. Ryan correctly testified that " design packages" did not necessarily J pass from group tre group -- rather, that field packages were the only type of packages passed between groups. A plausible argument -- that Comp 1sinant's counsel "inartfully" assumed Mr.
Rencher was testifying about design packages when he really meant field packages; that Complainant's counsel was simply caught up in " confusion", "inartful phraseology", " misunderstanding", and
" ambiguity". Respondents' Reply Brief at 14-16.
There was no " misunderstanding", no "inartful phraseology,"no "confusic n," and absolutely no ambiguity associated with Mr. Rencher's testimony.
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.,a 1 First, and foremost, Respondents absolutely failed to make a l L ,
record.to substantiate this alleged distinction.
Second, regardless of Respondents failure to make a record,_
l the distinction.between " field" and-" Design" groups itself is.
utterly false. Respondents' counsel knew or should have know I that this distinction was false before. submitting this alleged distinctic into the record.
There is no escaping the fact that Respondents' counsel misrepresented the fact that Mr. Rencher meant field and not design packages when he gave testimony that NPS was rejecting.PSE packages. The absolute proof of Respondents' folly is contained in testimony Mr. Rencher gave during his pre-hearing deposition.
His testimony demonstrates that Mr. Rencher meant design an not field packages when he testified at the hearing. According to
.his' deposition transcript:
0: [By Mr. Kohn] ...[W]ere you aware that the NPS group was rejecting PSE supports during the certification _
process?
A: [Mr. Rencher] Yes, I was aware cf that.
0: Were you aware of that in 1983?
A: Yes.
0: Were you aware of that in 1984?
A: Yes, sir.
0: Were you aware of that in 1985?
A: Yes.
Rencher Deposition at 78-79, emphasis added.
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12: .The NPS group was rejecting PSE packages duringythe b certification process,'right?
y _e.
[ .A: Yes..
1 0: ofEthose that were being rejected,,were'they ever then m
'ik recalculated under different criteria?.
A: Yes.
0: And then they were' certified after they were recalculated under different criteria?
A:- Yes._
Rencher. Deposition at Cl, emphasis added.
.Mr. Rencher goes on.to testify that he personally had conversations:about NPS's-rejection of PSE-designed packages'with Mr. Ryan..
0: [By.Mr. Kohn) Did you ever have any conversations with
'Mr.- Ryan concerning Mr. Hasan's rejection of pip'e -
-supports'?.
A: I had conversations with Mr. Ryan about rejections of pipe supports out of my group [NPS)...
0: What was the sum and substance of those conversations?
A: Mr.'Ryan asked if we might try to qualify the support as it was to avoid rework...
Rencher Deposition Tr. at p. 67, emphasis added.
Indeed, Mr. Hasan testified that Mr. Rencher had complained' to h3s group that he'was "being pressured" by Mr. Ryan to stop
~
rejecting PSE pipe supports and that Mr. Ryan was "not happy" because NPS was rejecting, according to Mr. rencher's d' eposition 9
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(1) 'That.the packages lMr. Hasan rejected as a'" checker"-
were rejected back to line-engineers and not management, and therefore management id not even have the requisite knowledge that dispuses associated with Mr..Hasan's rejection of pipe support packages was.even remotely associated.with-whist 3eblowing
'but rather was only; associated with egregious personality clashes Mr. Hasan continu. illy had with. fellow line engineers.5/FN (2). That Mr Hasan was a " checker" and a " checker's" job is
, to find errors-in packages, and therefore the mere fact that.Mr Hasan found errors (i.e. was essentially doing'his job),.does not constitute prof.ected activity. FOF No. 69. As such, disruption-caused by a " checker's" personality problems is not protected activity - .it is merely the type of improper employee conduct management does;not have to tolerate.
S/L Respondents' theory that somehow Mr. Hasan bickering with Eis collegues was caused by prejudice on the part of Mr. Hasan is ludicrous. Respondents can not corroborate-its theory of the case with the testimony of a single line engineer even though every-crucial line engineer who could have testified about Mr. Hasan's
" people problems".were re-hired by Stone & Webster or Texas Utilities and, acco'rding to answers to interrogatories, were still employed on site. Indeed, outside of Mr Hasan, only one line engineer testify, Mr. Ravada, and he testified that it was his fellow'Hirdu (Mr. Ravada is Hindu whereas Mr. Hasan is Muslim)' engineers who were treating Mr. Hasan unfairly.
Respondents did not, because they could not, find a single line engineer willing to testify againrt Mr. Hasan.
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.. In Respondents' own wordc:
, "The ' fundamental' error' in Complainant's position is h that he incorrectly equates the rejection of design l review packagea back to his fellow line engineers with l the concept of raising safety concerns to management. . ,
[And that the' critical point concerning Mr. Hasan's' I rejection of p. kages is that he did not reject them
, for safety-related reasons, nor did he reject them to management,." [ emphasis added} Respondents' Reply Brief at 11-12.
Obviously, the first is soundly defeated by fir. Ryan's co'rer-up of the illegal passing of packages between the different groups. The second is fundamentally flawed because the heart of Mr. Hasan's whistleblowing is that the criteria differentiation e
caused drastic and complex engineering design deficiencies in the very design of the plant. Only one line engineer, Mr. Hasan, was able to find (due to his extreme engineering skill), or at a i a
minimum was the only line engineer brave enough to bring the design errors to management's attention, risking, and in fact j loosing, his job.
The facts are clear: during the certification process Mr.
Hasan continually brought to management's attentien the fact that the criterion itself contained errors of immense proportion that jeopardized the safety of the entire facility. That is, Mr.
Hasan called into question the validity of the very certification process itself and that .he pipe supports line engineers had certified contained engineering errors of immense proportions.
Mr. Hasan began informing management of hin concerns in 1982. Management responded by telling Mr. Hasar. that it was none I of his business as management alone had the responsibility to 1
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. decide what criteria to apply and Mr. Hasan was to apply that
, criteria without question. Mr. Hasan complied with management in that he applied the criteria he was told to apply, but all along he continually informed management that the criteria he had'been ordered to apply would result in an unsafe design. Mr. Hasan had an institutional 1 zed knowledge of problems in the design of the plant and he would continually raise these problems to management.
At the core of Mr. Hasan's internal whistlebfowing disclosures was that management was jeopardize the safety of the plant (e.g. such as SWEC's not using the correct stiffness values in its .aitial requalification effort). Both Messrs. Finneran and Ryan knew that many of Mr. Hasan's internal whistleblowing disclosures had not been reported to the NRC or CASE. If Mr.
Hasan. remained there was no stooping Mr. Hasan from continuing his internal whistleblowing to SWEC. Once SWEC officially was informed of the error by Mr. Hasan, their requilificait, ion effort would have'been-exposed, making it just about impossible for Texas Utilities and SWEC to cover-up the truth any further.
- 1. Mr. Finneran Apparently Testified Falsely. ,!
At the hearing Mr. Pianeran apparently chose to perjure himself rather than admit that Mr. Hasan had begged him to recall certain packages so he could demonstrate that Westinghouse was about to (had) calculate the stiffness of the class 1 piping system using the wrong values. These stiffness values were made L
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part of the heart of SWEC's initial requalification effort (SWEC g was supposed to requalify the pipe supports in 6 months. Years later, thanks to Mt. Hasan'c and Messrs. Walsh and Ocyle's disclosures, SWEC has still not qualified the Class 1 piping system directly attributable to the unsafe design criteria Mr.
Hasan continually blew the whistle about to management between 1982-1985).
Mr. Tinneran's denial that Mr. Hasan did not raise the issue of the Westinghouse analysis of the class 1 pipe supports repeatedly during the course of the August 39th meeting is not only thoroughly discredited by Mr. Hasan's testimony, it is thoroughly contradicted and disc edited by the testimony of Respondents' own witness, Mr. Rencher.
Mr. Rencher's testimony is unequivocal, not only did Mr.
1 Hasan raise the issue, but also that Mr. Finneran enderstooo the significance of what Mr. Hasan had brought to his attention.
According to the testimony of Mr. Rencher:
O (By Mr. Mackj In that [ August 19th) meeting in your presence, did Mr. Hasan raise a concern over the stiffness of Class 1 pipe supports? !
A [By Mr. Rencher) Yes, he did.
O In the presence of Mr. Finneran?
A Yes.
O Did the two of them [ Messrs. Hasan and Finneran) hold a discussion about that?
A it was discussed in that meeting,.yes.
(
l Q And Mr Finneran was a participant in that discussion.
A Yes, sir.
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L O Do you recall whether Mr. Hasan in that meeting was concerned that the stiffness' values of the hardware had not been calculated for NPS Class 1 pipe supports? l 1
A Yes.
O And did ne express that concern to Mr. Finneran?
A Yes, he did.
a Q And Mr. Finneran understood the concern?
A Yes, he did.
[Tr. 117-118]
I There is no room for doubt that Mr. Finneran's failure to recall certain packages Mr. Hasan brought to his attention in order to verify what he already knew (Mr. Hasan had first identified the problem to managemerit back in 1982) that the
. -calculation of the stiffness values for the entire Class 1 piping system contained gross engineering errors. Not only did Mr.
Finneran refuse to recall the packages, he knowingly prepared memoranda falsely stating that Mr. Has&n had absolutely no safety conderns. These memoranda (RX 45, 31; CX 7) would become the center piece of Respondents' case.
In effect, Mr. Finneran (and others) engaged in an active cover-up of engineering flaws Mr. Hasan had first brought to management's attention back in 1982. Pour years later, after SWEC began its initial requalification effort of the class 1 piping system, Texas Utilities admitted for the first time that SWEC had used incorrect pipe support stiffness values and that this error was so egregious that a violation of 10 CFR 50.55(e) k l
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gc had occurred and had Mr. Hasan's-allegation of incorrect stiffness values gone undetected, "the integrity of the Class 1
. piping-and supports could not be assured during normal operating for accident conditions" and at least 30% of the pipe supports SWEC had considered " qualified" as of April, 1986, were in fact inadequately designed.due to the incorporation of incorrect stiffness values that a melt down could likely occurred if Mr.
Hasan's concern had gone undetected. See Letter for Texas
. Utilites Executive Vice President, William Counsil to the NRC (Exhibt 4 to Complainant's Second Motion for Default Judgment or in the Alternative for Disqualification, hereinafter cited as
" Default / Disqualification").5/
Finneran testified that the ten technical items he listed in the two page cover letter to his ten page August 19th memorandum l
(
incorporated every technical point Mr. Hasan mentioned during N their August 19th meeting. According to Mr. Finneran's two page memorandum, Mr. Hasan "did not have any concerns which he felt were important to safety at the plant." CX 7; RX 31.
To be sure the words " stiffness' and the term " Class 1" are not found anywhere in these two documents. CX7; RX 31, RX 45.
6/ Mr. Chamberlain admitted that the difficiency identified By Mr. Counsil in his letter to the NRC corresponds to the improper stiffness values sent to Westinghouse that Mr. Hasan I pleaded with Mr. Finneran to correct during their August 19th meeting together. Ar Mr. Chamberlain's deposition testimony reveals, Mr. Hasan's concern over the: " Class 1 supports which Westinghouse analyzed" is the same concern addressed in the "SDAR" Mr. Counsil's letter to the NRC referenced. Chamberlain Depo. atsp. 238.
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. Finneran's outright' denial that Hasan raised stiffness of
.g Class 1 piping during their August 19th meeting [Tr. 21] is contradicted by Messrs. Hasan's and Rencher's detailed testimony that such a discussion did occur on August 19th.
y Mr.'Finneran's failure to inform the NRC of Mr. Hasan's concern that the incorrect stifness valuse has been used to claculate the stiffness of the Class 1 piping system is, evidently, a civil and criminal. violation pursuant to 50 C.F.R.
55(e). 'See Footnote 6, infra. According to Mr. Rencher's testimony: j Q [By Mr. Mack] In that meeting [ August 19th] in your 1
presence, did Mr. Hasan raise' concern over the i
stiffness of Class 1 pipe supports?
A [By Mr. Rencher] Yes, he did.
O In the presence of Mr. Finneran?
A Yes.
O Did the two of them [Hasan and Finneran]' hold a discussion about that?
A It was discussed in tht meeting, yes.
O And Mr. Finneran was a participant in that discussion.
I' A Yes, sir.
O Do you recall whether Mr. Hasan in that meeting was concerned that the stiffness values of the hardware had not been calculated for NPS Class 1 pipe supports?
A Yes.
J Q And did he express that concern to Mr. Finneran lI di _m________ _
(- "
- A i , A Yes, he 62u. ,_
0 And Mr. Finneran understood the concern?
A Yes, he did.
[Tr. 117-118]
Mr. Rencher's testimony confirms Mr. Hasan's-detailed account of the August 19th meeting. Both testified that Hasan raised stiffness of Class 1 pipe supports as a. paramount safety concern of Mr. Hasan's during the August 19th meeting.
Mr. Hasan likewise testified that he pleaded and begged Mr.
Finneran to recall certain pipe support ~ packages so he could
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personal prove to Mr. Finneran that the improper stiffness values had been transmitted to Westinghouse. As Mr. Hasan tes ified:
O [By Mr. Mack] And what is it that you said [to Mr. Finneran conceerning stiffness values of Class 1 pipe g
supports]?
A I explained to him at length -- at tremendous length tht what happened in that period when Rencher told me or told us not to include that stiffness of the hardware *J for computing the stiffness of the Class 1 piping system.
And after listening to all this -- and than I told him that, why don't you recall those particular packages to look for yourself . . . .
[Tr. 286]
~$ :
f-A . . . I'was bringing very, very serious concerns to [Hr. Finneran] right from the morning to the end (of our August 19th meeting) and I was literally, virtually, you '
know, pleading or begging him that, You have got those packages; please bring it to here; I will show it to you, what was the problems . . . .
[Tr. 484, emphsis added]
A -- I pleaded with him that, Please recall those packages so that I can show where the mistakes are being made, and he refused to recall those packages . . . .
[Tr. 389 emphsis added]
Mr. Finneran's failure to investigate and thereafter include Mr. Hasan's pleas to recall packages in his August 19th memoranda was intentional. He knew that if Mr. Hasan's disclosure o
concerning incorrect stiffner.s values was contained in his August 19th exit interview memoranda, management would have to reported r Mr. Hasan's disclosure to the NRC.
Obviously, Mr. Hasan had been continually alerted management about this concern since early 1982, why should Mr. Finneran correct it in 1985?
Indeed, management was engaged in a cover-up of design flaws. No doubt, it was Mr. Hasan's institutionalized knowledge of design flaws that necessitated Messrs. Ryan and Finneran's decision to remove Mr. Hasan from the site. If Mr. Hasan remained on site, he would have obviously brought this and other j design deficiencies to SWEC's attention the moment SWEC provided D
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. him with the revised criteria. Obviously, that possibility made
< the decision to banish Mr. Hasan from the site inevitability.
V. Mr. Hasan's Wrongful Termination Complaints
_Against Texas Utilities and NPSI Are Not Time Barred.
Mr. Hasan,. acting pro-se, filed timely wrongful discharge actions'against NPSI and Texas' Utilities. Although not represented by an attorney and although he was unfamiliar with the operations of whistleblower discrimination law, Mr. Hasan contacted the U.S. Department of Labor (DOL) and alleged that he had been wrongfully discharged well within the statutes of limitations for both his August removal from the Comanche Peak site by Texas Utilities and his October 1985 layoff by NPSI.
According to a letter from H. Jack Bluestein, Director, Division of Program Operations, Office of Fcderal Contract Compliance Programs, U.S. Department of Labor, the DOL acknowledges that Mr. Hasan filed a complaint with the U.S. DOL prior to October 16, 1985. CX. 16.
On the face et the Bluestein letter it is indisputable that, at least as of October 15, 1985, Mr. Hasan had filed a complaint with the DOL and that the DOL had not yet categorized Mr. Hasan's acticn as one covered under Section 210. But the critical I
evidentiary impact of the Bluestein letter is that it constitutes direct evidence that Mr. Hasan timely filed actions against for his October termination from NPSI. Furthermore, this circumstantial evidence is corroborated by Mr. Hasan's hearing testimony that in August, 1985 he filed charge,s with the DOL l
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- concerning;his. removal (from -the Comanche Peak cite within the 30 j; -dayjstatute of limitations periodi Tr --462. Although the~ exact'
. dates,of these contacts areLunknown at this time', contact'with 0 itheL DOL in: August would be timely'forithe purpose of filing a complaint for events which occurred.in August. Mr. Hasan's-l testimony that he attemptedito file' charges with the DOL i'n n
AugustL1985 is further verified by two NRC internal memoranda.
.In a September 6, 1985 memorandum, NRC' Program Coordinator Chet
- Poslusny memorialized the fact that Mr.-Hasan called him on
' August 28, 1985 to raise safety allegations about Comanche Peak.
and' allegations tha't he was discriminated.against. Mr. Posluny made note that he told Mr. Hasan to contact the DOL within 30 days regarding his discrimination complaint. CX 26.
~
In a. follow-up memo dated October 8, 1985, Mr. Poslusny again' memorializes a September 20,: 1985 conversation h'e had with
~
Mr.-Hasan, stating that Mr. Hasan had'in fact informed.him that he had made contact with the. DOL concerning his removal from Comanche Peak but that he was nonetheless informed that "the D0L would not handle his case'until~the EEOC was finished with theirs." CX. 17.
During shis time period Mr. Hasan, who is a foreign-born American citizen, who had much difficulty with the English language, and is wholly unfamiliar with the operation of the legal system, petitioned the DOL and EEOC as a pro-se litigant.
Unfortunately, Mr. Hasan failed to Tetain copies of his correspondence with the DOL. Nonetheless, the record f i
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+ b is clear -- soon after his removal from Comanche Peak, and within the 30-day statutory time period Mr. Hasan contacted the DOL and l attempted to file a Section 210 complaint. There was unfortunately confusion within the DOL offices Mr. Hasan communicated with, and his complaint was not initially classified as a Section 210 complaint. But Mr. Hasan did file his charges 'j concerning the improper removal from the Comanche Peak site by Texas Utilities and the improper layoff by NPSI within the statutory time restrictions.
On' June 17, 1987, the ALJ issued an order on the timeliness issue. The ALJ ignored the importance of the Bluestein letter which confirmed that Mr. Hasan had in fact filed timely charges I
with. DOL. Instead the ALJ focused upon the fact that Mr. Hasan i
was unable to produce a copy of the original complaints filed.
But the Bluestein letter confirms the fact that Mr. Hasan did
' file a complaint with'the Secretary of Labor (SOL).
Unfortunately, Mr. Hasan did not keep a copy of the original l
letter he sent to the SOL on or about September 20, 1985. But a complaint cannot be dismissed as untimely just because a pro-se litigant does not keep a copy of the complaint he originally files.
The case, as tried before the ALJ, was limited to Mr.
Hasan's blacklisting complaint against Stone & Webster and Texas Utilities. No proper record was created concerning the decision to remove Mr. Hasan frcm the Comanche Peak site and the decision
, by NPSI to lay-off Mr. Hasan. Regardless of the Secretarys a opinion concerning blacklisting, the August 1985 removal and the
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- October?l985 layoff must-be' properly adjudicated._ This case.
-should be remanded for a full evidentiary hearing on'those two 7
additional causes of action..
VI. The Administrative Law Judge Erred in Not Pinding Protected Activity As the ALJ did._not issue'a direct order in support of Mr.
Hasan, this case must be immediately remanded,'with instructions that the ALJ issue a new recommended order rigorously following the line of cases in which internal complaints to management are considered. protected activity. He'should be' instructed to meticulously apply the following line of cases to an analysis of i
the record: Philips v. Interim Board of Min. Op. App., 500 F.2d l 772 (D.C.,Cir. 1974); Baker v. U.S. Dept. In Bd. of Min. Op.
' App., 595 F.2d 746 (D.C. Cir. 1978); Mackowiak v. University
~ Nuclear Systems, 735 F.2d 1159, 1163 (9th Cir. 1984); Kansas Gas n!
& Electric v. Brock, 780 bF.2d 1505 (10th Cir.:1985); Poulos v.
Ambassador Fuel Oil Co. , 'Inc , 86-CAA-1, Dec. of SOL :(Kpril 27, '
1987); Willy v.' Coastal Corp., 85-CAA-1, Dec. of SOL (June 4, 1987). 1 The ALJ erred as a matter of law when he ignored this line l
of cases and applied the Brown & Root v. Donnovan case. ;
VII. The Administrative Law Judge Failed To Apply the Dual Motive Test ,
The ALJ uas required to apply the dual motive teset. See, i
e.g., Mackowiak v. University Nuclear. Systems, 735 F.2d 1159, 4
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- 1164 (.9th Cir. 1984); Consolidated Edison v. Dononvan, 673 F.2d l
,. 61, 62 (2nd Cir. 1982). Unfortunately, the ALJ apparently did not understand this test. In his recommended decision the ALJ concluded that protecting internal whistleblowing activity such as Mr. Hasan engaged in would somehow make it impossible to.
terminate an employee: "...an employee, such as complainant in this case, could guarantee his future continued employment by periodically repeating the phrase, 'I have a safety concern and I may go to the NRC.'" RD&O at page 5..
This reasoning highlights the defective legal reasoning employed by the ALJ. Regardless of whether a whistleblower engages in protected activity, a whistleblower can always be fired. The ALJ erred as a matter of law when he concluded that a finding that Mr. Hasan engaged in protected activity can somehow insulate him from termination.
The dual motive test holds that even if an employee engages in protected activity, he or she can still be fired -- as long as management can demonstrate that the employee who engaged in protected activity was not disciplined more harshly than employees who committed the same offense. Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287 (1977); Ashcraft v.
University of Cincinnati, 83-ERA-7, slip op. of SOL at 13 (Nov.
1, 1984). For example, under the NLRA a union organizer could not be fired for drinking on the job when the company also caught an employee uninvolved in union activity drinking on the job but did not fire that employee. NLRB v. Faulkner Hospital, 691 F.2d 51, 56 (1st Cir. 1982). .
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'If Mr..Hasan violated a.worPolace rule (including "not i
getting along:with co-workers"), Respondents could have fired him
-- or not recommended him for rehire. The fact that Mr. Hasan
'y> 'l - engaged in protected activity has nothing to do witn somehow "guarar. tee [ing]" his," future. continued employment." The ALJ simply failed to apply the dual motive test. When it came time f Respondents to demonstrate that other employees who had similar alleged personality problems were terminated, they failed to produced a single shred of evidence. More significantly, a
- number of employees with lower overall job ratings were recommended for rehire and in fact were rehired by Stone &
l Webster.
Significantly, thirteen engineers were recommended for hire l
- by Texas Utilities and offered jobs with Stone & Webster who had lower job ratings than Mr. Hasan. CX 5 and 6. Of 28 NPSI engineers' offered jobs by Stone & Webster, only 15 were rated equal to or better than the " good" rating received by Mr. Hasan.
Thirteen had lower ratings, including ratings such as " fair,"
" satisfactory", or " average." CX 5 and 6: Complainant's findings of fact, page 47. This is the critical fact that the ALJ failed to analyze -- why were employees with lower job ratings rehired?
If Mr. Hasan's personality problems resulted in low job ratings -- or job ratings equal to or lower than the ratings other employees had who were also not retained on site, the Mr.
Hasan should lose his case.
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!But the facts-are just the opposite. Employees with " fair" i
g - and' " average" classifications were. rehired, but Mr. Hasar., with a
[- -job rasing of " good," was not. Regardless.of who has tF.e burden of proving ~ disparate treatment, the undisputed factual record
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'shows'that (1) no other employee was not rehired due to so-called ]
personality: problems, and (2)"the obiective job rating system 4
' unquestionably demonstrated disparate treatment.
Just like the' union organizer who was caught drinking on the job, Mr. Hasan could.not be fired due t'o disparate treatment. No one, in the abstract, could. question management's right to fire On employee for drinking on the job. But such an abstract right
- is subject to a critical review under the Mt. Healthy test -- a review to ensure that whistleblowers -- even if they are not
. - complete angels -- that'they are not subjected to more harsh punishment than non-whistleblowers.
Unfortunately, the ALJ neither understood nor applied the proper test when analyzing the appropriate disciplinary action management could have taken against Mr. Hasan, even if Mr. Hasan was guilty as charged. If the SOL does not issue an order for
'Mr. Hasan, the case should be remanded'with instructions to the ALJ to_ properly apply-the dual motive test.
VIII. The ALJ's Adoption of Respondents' Findings of Fact 1-128 (with one modification) Was Improper The ALJ failed to properly analyze the record in this case.
The ALJ simply ignored Complainant's findings of fact in those instances where it contradicted Respondent's findings, or where 38 -
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4 it contained findings ignored'by respondents.
b.: .
On its-face the.ALJ's decision fails "to' reflect a.
consideredtresponse to;the evidence'and contentions'of the' losing u
party." -Harborlite Corp. v. I.C.C., 613 F.2d 1088, 1092 (D.C.Cir.'1979).' An ALJ'must' analyze the; evidence theLlosing, party. puts forward. See,'e.g., Stewart v. See,retary of' HEW, 714-F.2d.287, 290 (3rd Cir. 1983). The ALJ simply ignored the evidence lwhich contradicted Respondents' case. He issued a. terse six page decision, of which'only three pages'are dedicated to explaining the facts.. In juxtaposition to this, Con.plainant's1 findings of fact consisted of 52 pages and Respondent's findings of fact went on for 57 pages. Rather then explain whereLsud why
- Complainant's detailed accounting of the record was in error
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(whi'ch it is not), the ALJ adoped-Respondents' findings of fact' without consideration to the numerous contradictions in Respondents' witnesses' testimony. See Footnote 2, infra.
The ALJ erred as a matter of law by failing to review and analyze the record when he wrote his decision. LThe' case should be remanded on this ground, with instructions for the ALJ to fully analyze the record and issue a recommended decision'which is cr.pable of proper review by Complainant and the SOL.
L }I. Conclusion The SOL should issue an order in support of Mr. Hasan. This can be accomplished in the following manner:
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l. Complainant's post-trial Findings of Fact and Conclusions of Law adequately addresses every issue and supports a ruling for Mr. Hasan.
- 2. The ALJ's fatal error concerning: First, the definition of protected activity, and second, the credibility of Mr. Ryan-and Mr. Finneran can be corrected by the SOL. See, e.g. Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-97 (1951); NLRB v.
Interboro Contractors, Inc., 388 F.2d 495, 499 (2nd Cir. 1967);
NLRB v. Miller Redword Corp., 407 P.2d 1366, 1369 (9th Cir.
1969).
In the alternative, Complainant requests a remand to an ALJ with explicit. instructions on how to proceed at remand.
Respectfully submitted,
^ ' ~ ~
Michael D. Kohn Stephen M. Kohn Attorneys for Mr. Hasan Dated: February 16, 1988 032AA05 l
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a' o Exhibits 1); Speed Memo by Mr. Hasan to Jay Ryan, dated 1/17/83.
2)- Letter from NRC to Texas Utilities, dated January 6, 1988.
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.k UNITED STATES OF AMERICA BEFORE THE SECRETARY OF LABOR
)
S.M.A. HASAN, )
)
Complainant, )
)
- v. ) No. 86-ERA-24
)
NUCLEAR POWER SERVICES, INC., )
STONE AND WEBSTER ENGINEERING CORP., )
TEXAS. UTILITIES ELECTRIC CO., INC., )
)
Respondents. )
)
COMPLAINANT'S RESPONSE TO RESPONDENTS' BRIEF TO THE SECRETARY OF LABOR I. OVERVIEW AND PERSPECTIVE Remove the obvious falsehoods from this proceeding and a b
very straightforward case of retaliation by Respondents against Mr. Hasan emerges.1/
Mr. Hasan is and was an exceptional structural engineer, who constaatly detected complex.and simple design errors during the certification process of the Comanche Peak facility that either
- 1. The false statements made in the briefs filed by Respondents' counse1~were so gross and outrageous that Mr.
William Counsil, Texas Utilities Executive Vice President, was forced to send a sincere appology to the Intervenor, Citizens Associated for Safe Energy (CASE -- who is a party in the ongoi'.g i licensing hearings before the Atomic Safety Licensing Board) fc r the false and malicious made-up story that CASE had employed spies on site.
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b no other engineers on site detected or bothered to report to management.
Sixty-five of the concerns Mr. dasan raised to management during his tenure at Comanche Peak are set forth in a May 28, 1987 letter from the NRC to Texas Utilities. This list was introduced at trial as Complainant's Exhibit 14.2/ In a January 6, 1988 correspondence, the NRC recently informed Mr.
Hasan that his 65 allegations set forth in the May 28th letter to Texas Utilities had been " substantiated."3/
Beyond merely raising safety concerns to management, Mr.
Hasan's concerns were sound, valid and true. The NRC so found.
One of the numerous and more notorious falsehoots I
Respondents' counsel raises in evey post-hearing filing is the assertion that Mr. Hasan never raised a single safety concern to a single manager throughout his tenure at the Comanche Peak site.
The most recent episode in which Respondents' counsel claims that " Texas Utilitites was not aware of'Mr. Hasan's having Brief raised any safety concerns," is contained in Respondents' in Support of the RD&O, at p. 4. Similarly, on page 5 of this pleading Respondents likewise state that "Mr. Hasan in fact did not raise any safety concerns while at Comanche Peak."
- 2. Hereinafter Complainant's exhibits introduced at "RX." the hearing Cites are refered to as "CX" and Respondents' Exhibits at "Tr." followed by to the Hearing' transcript are indicated by a the page number.
- 3. Complainant has filed together with this pleading1988 a Motion NRC to Augument the Record e:th a copy of the January 6, l correspondence to Mr. Hat.'.
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Later still in this pleading.they again claim that:
none of [Mr. Hasan's] superiors at Comanche Peak had any information or belief that Mr. Hasan had any safety concerns about Comanche Peak. . .
Id. at p.-13, Fn. 6.
A more false assertion is hard to phathon. Respondents are-well aware that Mr. Hasan continually blew the whistle about dozens of safety concerns. How can Respondents' counsel make such a statement in good faith when its own witnesses admitted at their depositions that Mr. Hasan had raised dozens of safety concerns to them while employed on site. S/
- 4. Complainant cites to the Depositions of Messrs. Chamberlain Rencher, Finneran and Ryan in this and in its earlier filed pleading eventhough these dispositions were not Complainant formally has introduced into the record during the hearing.
been forced to rely on these depositions soley to refute obvious false statements made by Respondents' counsel, or to demonstrate beyond a reasonable doubt that Respondents' counsel relied on perjurous testimony. Complainant had no idea that Respondents would regularly resort to making false statements or that they would resort to using perjured testimony even after the perjurous nature of the testimony was identified to Respondents and to the ALJ. Thus, had it not been for the gross and outrageous conduct of Respondents' counsel, Complainant would not now need to rely on the disposition testimony of Messrs. Rencher and Chamberlain.
Unfortunately, it was not possible to predict that Respondents' counsel would go to the extremes they have in order to prevail before the ALJ. Given the unforseen circumstance that Respondents' counsel would regularly present falsehoods to this tribunal, Complainant formally submits a Motion to Augment the record with the Transcripts of Messrs. Rencher, Chamberlain Finneran and Ryan, filed under separate cover.
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Mr. Rencher testified that of.the 65 concerns enumerated in.
the May 28th letter from the NRC to Texas Utilities (CX.14), he remembered Mr. Hasan bringingito his atention concerns Nos. 8, El l , 13, 14, 23, 24, 36, 57, 61, and 65. Rencher Depsotion Tr.,
at pp. 241 to 252. Similarly, Mr. Chamberlain testified at his deposition that Mr. Hasan had raised with him concerns nos. 1, 3, 5, 7, 8, 9, 11, 12, 13, 15, 16, 19, 21, 23, 24, 26, 28, 30, 32, 34, 35, 36, 37, 39, 41, 47, 48, 58 and 65. Chamberlain Deposition Tr. at pp.60-164. Indeed, Respondents go as far as to assert that the " evidence was totally without contradiction" that Mr. Hasan never raised a single safety concern to any of his supervisors. Respondents' Brief in Support of the RD&O, at p.
13, En. 6. The obvious truth is that Mr. Hasan continually raised to his supervisors dozens of safety concerns.
Far from being "without contradiction," the record establishes exactly the opposite. The hearing transcript demonstrates that Mr. Hasan raised: incorrect calculations of the Stiffness values of the Class 1 pipe support system (Tr. pp.
117-118,'148-149, 235, 237, 285-289); Richmond Inserts (Tr. 239-241, 245, 247-248); incorrect calculations of punching shear (TI.
75, 231-233, 264-266); Inconsistent criteria used to calculate the same pipe supports (Tr. 272); Minimium weld violations (Tr.
168, 190, 542); improper STRUDL input (Tr. 260, 273, 378, 443-444); use of improper earthquake loads when calculating pipe supports (Tr, 261); incorrect minimium frequency criteria / base plate thickness (Tr. 281); incorrect allowable loads of Hilti bolts (Tr. 243), just to name a few.
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- b It is nothing'less than sanctionable conduct for Respondents' counsel to state that the evidence was "without contradiction" that Mr. Hasan'never raised-a single safety concern to his supervisors when in fact the record was just the opposite.
The record is without contradiction that Mr. Hasan's supervision, Mr. Rencher~, testified quite clearly and convincingly that Mr. Hasan repeatedly blew the whistle to him about the stiffness values of the Class 1. piping system, and when asked if
- that concern was " safety-related," Mr. Rencher replied "I would say so. Yes." Tr. 118.
Complainant's counsel is left with the impression (indeed the reality) that Respondents' counsel is incapable of submitting a post-hearing brief that does not contain numerous gross and outrageous falsehoods.
The undeniable truth is that Mr. Hasan found himself surrounded by incompetence, managers and line engineers alike.
One particular disclosure Mr. Hasan made was that his line supervisor, Mr. Hemrajani, would place a stack of pipe support _
packages before him and sign off on the designr without checking them. Mr. Hasan sat next to Mr. Hemrajani and observed this happening on a daily basis. He could not believe that managers themselves would sign off on documents without Going the required checking of the documents. Production over safety was business as usual in the Comanche Peak pipe support groups.
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. i Day infand day out, Mr. Hasan sat and watched an engineering
' nightmare.- He would. find egregious errors. When he brought his concernsLto management, he was told-to ignore them.
. 1 Beyond the gross incompetence of management, Mr. Hasan j became alarmed over the' fact that the pipe; support design was j 1
teing performed by different organizations using different design l criteria'to construct the pipe support system of the Comanche.
Peak facility.
Mr. Hasan soon reali. zed that. pipe supports designed by one organization.were-being transferred into his organization for certification with criteria other than what it had been designed with. This meant that the same pipe support was being designed and certified using at least two different sets of criteria.
Mr. Hasan next realized that after he rejected.a pipe 9
support, in particular when the pipe support's Richmond Insert design failed, the rejected pipe support was taken out of.his L
group and transferred into another group where it was certified often without modification. Mr. Hasan could not phathom how the same pipe support could be considered defectively designed by one group, only later to be certified by another group without l
l undergoing any type of modification.
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After observing the method used by management to certify l
l pipe supports, Mr. Hasan came to the correct conclusion that the safety of the Comanche Peak' facility'was in jeopardy unless management implemented a uniform set of criteria, at least with respect'to the Richmond Insert design.
As time passed, Mr. Hasan, conscience-struck over design and engineering problems in the pipe support design of the Comanche Peak facility, became more and more determined to resolve the engineering nightmare he had uncovered. He engaged in a steady stream of internal whistleblowing to Messrs. Finneran, Chamberlain, Rencher, Hemrajani, Sherrer, Hill and others.
Indeed, Mr. Ravada, when asked if he ever " told Mr. Sherrer that Mr. Hasan might go to the N?C," stated "...Yes." Tr. 71.
To stop Mr. Hasan from escalating his whistleblowing from internal disclosures to contact with the NRC, management fostered ([
an atmosphere of intimidation and retaliation. Line supervisors ,
would walk up to Mr. Hasan and to his face ocure ing a whistleblower and spy fo CASE.' These same managers (Hemrajani, Rencher, Hill) encouraged line engineers to harass Mr. Hasan.
This harassment often surfaced as religious discrimination (an easily provoked response as Mr Hasan was a religious minority of one Muslim in a group supervised and dominated by members of the Hindu faith) -- to the point where open religious discrimin;0 tion (name-calling, etc.) was practiced in the NPS group, by his supervisor, Mr. Hemrajani, and line engineers alike, i
t
so When Mr. Hasan went to management for help, he was told that no. intimidation or discrimination existed on site. The problem of retaliation and harassment-- like the engineering-design flaws he also brought to management's attention -- were all just figments of Mr. Hasan's imagination.
The more management refused to correct the problems Mr.
Hasan encountered, the more open and flagrant the harassment and discrimination became. For example, one line engineer, without provocation, behind Mr. hasan's back pulled out a knife-and dropped it behind his back. onto tite chair Mr. Hasan sat in, hard
-at work -- the often-mentioned but unexplained " knife incident."
See, Respondents' Brief to SOL, at p. 8.
The fact.that a line engineer was allowed to pull out a knife and drop it behind the back of Mr. Hasan in plain view of other engineers and make sick and demented religious slurs with the knowledge and complicity of management does not speak to Mr.
Hasan's inability to get along with other line engineers. It merely defines the level of harassment and intimidation encouraged by management against Mr. Hasan in a vain attempt to control his whistleblowing. Labor case law is replete with examples of employers utilizing employees to harrass and discriminate against another employee for having engaged unprotected activity. There is no difference in the case of Mr.
Hasan.
In spite of the increased it imidation and harassment, Mr.
Hasan rejected more pipe supports than other engineers in every group to which he was ever assigned.
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II. HANAGEMENT'S KNOWLEDGE OF MR. HASAN'S WHISTLEBLOWING ACTIVITIES Messrs. Ryan and Finneran were shown to have actual knowledge of Mr. Hasan's whistleblowing activity. But for Mr.
Ryan's recommendation and Mr. Finneran's decision to remove Mr.
Hasan from the Comanche Peak site,.Mr. Hasan would have been offered a job by SWEC. This fact in not contested. What is contested is'whether Messrs. Finneran or Ryan had any knowledge of'any of Mr. Hasan's safety concerns. Respondents contend that they did not have knowledge of either Mr. Hasan's repeated threats to go to the NRC or even the fact that he had in fact ever raised a single safety concern while employed on site.
Respondents' Brief in Support of the RD&O, at p. 4, 13.
Respondents' assertion is both ludictious and absolutely false.
As will be detailed later in this brief (See Sections VII ard X, infra.), both Mr. Ryan and Mr. Finneran committed perjury.
in order to conceal knowledge of Mr. Hasan's whistleblowing activity.
]
Essentially, Mr. Ryan absolutely purjured himself when he-denied that PSE pipe supports were being sent for certification'to t 1
the NPS group. This transfer is believed to be highly illegal --
it no doubt resulted in the improper certification of an unsafe pipe support design. The significance of Mr. R,an's knowledge of the fact that Mr. Hasan was rejecting PSE pipe supports while in NPS is that it proves first hand knowlege on the part of Mr. Ryan i
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i' regarding the reasons Mr. Hasan rejected the supports. Attached to the-pipe suppo'rts Mr. Hasan rejected were cover memos stating I 'the'~ reasons the supports had been rejected. These memos were issued directly to Mr. Ryan and prepared directly at hic-request.
~Thus, by reviewing these memos, Mr. Ryan had complete knowledege of all of the reasons Mr. Hasan' rejected PSE pipe supports while he was stationed in the NPS group (1982 through_1984). As is explained in detail infra, not only did Mr. Ryan know all of the concerns Mr. Hasan raised between 1982 and 1984, he was the manager in charge of certifying all of the PSE pipe supports illegally sent to NPS for certification that Mr. Hasan rejected.
Obviously, Mr. Ryan had complete knowlege cf every concern Mr.
1 Hasan raised over the use of inconsistent criteria when certifying pipe supports designed by other groups using different
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criteria.5/
After rejecting a PSE pipe support due to differences in criteria, particularly in Richmond Insert design, Mr. Hasan would take the rejected pipe support package to Messrs. Rencher and Hemrajani. Mr. Hasan would show them the reason he was rejecting the package and plead with them to speak to Mr. Ryan about his concerns over certifying pipe supports with different sets of criteria. He particularly pleaded with them to explain to Mr.
- 5. Respondents' claim that Mr. Hasan only rejected pipe support packages directly to line engineers, not to management, and that ,
"none of his supervisors at Comanche Peak had any information or i belief that Mr. Hasan had any safety concerns" Respondents' Brief in Support of the RD&O, at p. 13, is ridiculous En its face given Mr. Ryan's role in illegally certifying the very pipe supports For a more detailed account, see that Mr,. Hasan had rejected.
Section VI, igfra.
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I Ryan the n'eed for a single set of criteria when certifying'a Richmond Insert. Mr. Hasan's pleas.were in vain. Every manager L
l he tpoke with uniformily came back to inform Mr. Hasan that Mr.
Ryan had emphatically' rejected his request. (Between January, 1
E 1982 and May, 1984, Mr. lasan requested the following' managers to-discuss with Mr. Ryan his concern over the certification of Richmond Insert design using inconsistent criteria: Mr. Rencher, Mr. Hemrajani and Mr. Sherrer; in 1985 he. requested the same of Mr. Chamberlain and Mr. Hill (Tr. 258, 264-266). Mr. Chamberlain testified that he. brought Mr. Hasan's concerns directly to Mr.
Ryan between February and August of 1985, Tr. 168, 190.
Well before Mr. Hasan was transferred out of NPS, Mr. Ryan's.
contempt over Mr. Hasan's rejection of pipe supports was so complete that he once made an obscene gesture at Mr. Hasan when he saw him in the hallway. Tr. 274-275.
After receiving a retaliatory transfer out of the NPS group (against his wishes), Mr. Hasan was assigned to work under Mr.
Barry Hill. It is while stationed in Mr. Hill's group that Mr.
Hasan would repeatedly threaten Mr. Hill that he was about to "go to the NRC," unless his safety concerns were adequately addressed. Tr. 273, 378, 443-444. On one of the more acrimonious occasions, Mr. Hasan shouted out loudly enough for the entire section to hear his threat to go to the NRC. As Mr.
Hasan explained, "
. . . they were forcing me to sign . . . wrong documents. . . therefore, trouble was the natural outcome of it."
Tr. 378-379. Mr, Chamberlain corroborated the fact that he had
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Ebeen told by.Mr. Hill that Mr. Hasan had threated to "go to the NRC." Tr. 192. Mr Ryan was duly informed of the incident once he returned from vacation. Tr. 532, 538.
Indeed, from the' moment Mr. Hasan stepped foot in Mr. Hill's group, he was subjected to extreme harassment. At least once a week Mr. Hill'would approach Mr. Hasan and call him a " spy" or an l-
" agent" for CASE or the NRC. Tr. 270. Notably, Respondents did not call Mr. Hill as a witness to refute Mr. Hasan's testimony,-
nor did Respondents notice Mr. Hill for deposition.
Knowledge of Mr. Hasan's safety concerns had to be known to both Mr. Ryan anc Mr. Finneran due to their membership in the
" Design Guidelines Committee." Tr. 21-22. The Committee had about 6 members in all, including Mr. Chamberlain. The Design Guidelines Committee was responsible for all changes made to the g design criteria used by the Pipe Support Design Group (PSE) when qualifying pipe supports.
Often when Mr.'Hasan wo~'d raise a safety concern he would refuse to sign-off on the paperwork unless he received in writing a memo from the Design Guidelines Committee stating that Mr. _
Hasan was to ignore a particular concern when certifying the design of a support. These memos came directly from the Design Guidelines Committee.
The memo writing function of the Design Guidelines Committee t
kept its members constantly appraised of every safety concern Mr.
Hasan raised. Indeed, Mr. Chamberlaintestified that whenever Mr. ;
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k l m Hasan raised a technical concern during' the certification of.a pipe support, he was forced to present Mr. Hasan with a-memorandum before Mr. Hasan would release the package. Tr. 166.
Thus, as members of the Design Guidelines Committee, Messrs.
Ryan and Finneran knew every pack &ge Mr. Hasan refused to sign off on and why.
Two memos from the Design Guidelines Committee addressing Mr. Hasan's concerns were turned over in discovery after they were altered by Mr. Chamberlain at the direction of Respondents' counsel. Chamberlain Deposition Tr. at p. 217. One altered memorandum concerned minimium weld violations (Concern No. 65 as identified in CX 14); the other, U-bolt stiffness (one of the concerns Mr. Hasan raised to Mr. Finneran on August 19, 1985)
Both were submitted as exhibits to Complainant's Second Motion 4 For Default Judgment or in the Alternative for Disqualification (Exhibits 7 and 8 thereto).6/
- 6. In an apparent abuse of discretion, the ALJ denied Complainant's Second motion for Default /Disqualificaiton (dated June 16, 1987). The motion was based en the facts surrounding j the alteration of two key and vital documents"concerning Mr.
Hasan's whistleblowing disclosures concerning miniminu weld violations (Exhibit 7) and U-Bolt stiffness (Exhibit 8). This .I motion upon receipt, was denied by the ALJ as beir.g
" inappropriate." See Order of Judge Lindeman, DE,ted June 17, 1987. Respondents were never required to respon1 and indeed they did not do so. Exhibit 7 constitutes one memo given to Mr. Hasan by Mr. Chamberlain on one pipe support package Mr. Hasan refused to certify until his concern over minimium weld requirements was addressed by the Design guidelines Committee. A second memo concernin7 weld requirements, CX 9, was also created by Mr.
Chamberlain after Mr. Hasan again would not proceed to certify i another pipe support. y
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Obviously, .as members of the Design Guidelines' Committee, i=
Messrs. Rayan and.Finneran had intimate knowledge of Mr. Hasan's safety concerns about every issue on'which Mr. Hasan caused a memo to be drafted.
In. addition to the above, Mr. Ravada testified at length that he had a three hour conversation with Mr. Finneran on August 16, 1985,.of which one hour nothing but the subject of Mr.
Hasan's safety concerns was discussed, Tr. 78; including Mr.
Hasan's concern over punching shear and Richmond Inserts. Tr.
- 75. Mr. Ravada's testimony concerning his hour-long conversation with Mr. Finneran abodt Mr. Hasan's safety concerns was emphatic.
Yet Mr. Finneran altogether denied the conversation ever took place. Indeed, not only did they discuss Mr. Hasan's concerns, Mr.'Finneran asked Mr. Ravada if he knew whether or not Mr. Hasan x had gone to.the NRC wita his concerns, and Mr. Ravada testified that he informed Mr. Fir.neran that Mr. Hasan may have already gone to the NRC. Tr. 75. Once again, Mr. Finneran's memmary failed; he denied the cor.versation ever took place. Tr. 26. Mr.
Finneran's memmory also failed him when he could not recall' conversations he had with Mr. Rencher about " spies" for CASE existing on site. Tr. 24. Mr. Rencher had no dificulty recalling these conversations. Tr. 116 Without question, the concerns Mr. Hasan raised when checking pipe support packages caused Mr. Ryan to '.all behind
' schedule in his effort to certify the plant. Indeed, Mr. Ryan admitted that Mr. Hasan raised more technical concerns and v
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rejected more PSE packages than anyone else.
Ryan, Mr. Hasan's repeated ~ rejection of' pipe support packages caused " disruption" to his production schedule. Tr. 543-544.
L III. MR.'HASAN'S REJECTION OF MR. RYAN'S-PIPE SUPPORTS The simple reality is that but for Mr. Ryan's adverse
- recommendation, Mr. Hasan would have been hired by Stone &
Webster. Mr. Ryan gave.as his only alleged reason for not recommending'Mr. Hasan the fact that' Mr. Hasan's presence un site caused disruption during the certification process.
The disruption was caused due to horrendous design flaws Mr.
Hasan uncovered while reviewing pipe support designs. The primary cause of the design flaws, as far as Mr. Hasan could
.tell, was due to the use of inconsistent design criteria when designing and constructing the plant.
The crux of the problem was that Texas Utilities had established three separate organizations to design and certify discrete portions of the Comanche Peak pipe support system. They a
were (1) the Nuclear Power Services, Inc. group (NPS or NPSI),
subcontractor of Texas Utilities; (2) the Pipe Support Engineering group (PSE), managed and staffed by Texas Utilities itself, and (3) the ITT-Grinnell group (ITT), also a subcontractor of Texas Utilities.
Each design group was responsible for developing its own design criteria and for certifying every pipe support within its scope.
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l Thus'NPS-designed pipe supports were to be reviewed and
. certified exclusively according to the NPS criteria. If a pipe support: designed by NPS could not be qualified pursuant to NPS criteria, it was to be rejected and redesigned by NPS. The.same was true for pipe supports designed by PSE and ITT It is, and L was, axiomatic that each pipe support was to be certified using only one set of criteria -- the criteria with which it had been designed. Indeed, pursuant to contract and NRC regulations, no pipe support was to be designed according to one group's criteria and certified under another group's criteria.
.So much for theory. In practice, Texas Utilities was apparently engaged in a fraudulent scheme to certify the pipe support designs of the Comanche Peak plant arbitrarily changing the scope of pipe support and certifying it with criteria other than what it had been designed with.
Line engineers, including Mr. Hasan, were not aware that j shifting pipe support packages from group to group during the certification process was illegal. Rather, Mr. Hasan only knew that management's practices were contrary to standard engineering l principles. What he had unwittingly uncovered was an apparently illegal shifting of pipe support packages between groups for certification. Mr. Hasan recognized that the only way to assure the integrity of the pipe support system was to institute a
, uniform set of design criteria for the supports being transferred between groups.
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7 Mr.'Hasan's' remedy to the design flaws he uncovered were simple: introduce a uniform design criteria. What Mr. Hasan
. didn't realize was that such a remedy would moot the reason that the pipe supports were being transferred between groups-illegally in the first place.
The key concern Mr. Hasan had over the use.of multiple sets of design. criteria to certify the same single pipe support concerned the support's anchoring mechanism, known as a Richmond Insert. As Mr. Hasan reasoned, since there was no way of knowing
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in advance'how the adjacent Richmond Insert had been designed (due to the transfer back and forth of pipe supports), then there was no way to predict how the different pipe support designs would interact should a pipe support fail. A brief layperson's definition of a Richmond Insert is necessary before the gravity of Mr.'Hasan's concern can be appreciated.
A Richmond Insert is a steel structure, shap[ed like a pig's tail (helical spring) that is placed into the fouridation at the time of concreting.. Once the concrete foundation is cured, a steel rod is screwed into the portion of the Richmond Insert that is exposed at the surface of the foundation. Virtually, the entire support system for the Class 1 (safety-related) piping system is anchored to a Richmond Insert.
Jne concern Mr. Hasan had over using different sets of design criteria when certifying the Richmond Insert design of the plant was that a progressive failure of the. Richmond Inserts could easily result because the engineering consequences of interchanging the different designs had not been workad out.
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b In order-to better understand Mr. Hasan's concern, Imagine a line"of dominoes. The force necessary.to knock down the entire line is only that:needed to knock down a single domino. The same principle applies to Ri;hmond Inserts -- if one fails, the load is transferred to the adjacent Richmond Insert, and if that insert was'not 6esigned to withstand the transferred load it too will fail; and so on and so on.
The problem uncovered and reported t- management by Mr.
Hasan was that the use of different criteria to qualify adjacent Richmond Inserts created the ctential for a progressive failure of the entire pipe. support system at Comanche Peak. In a nut shell, one of Mr. Hasan's concerns over the Richmond Insert design was that although each company created its particular design to assure that the transferred load of one Richmond Insert onto the adjacent pipe support would not result in a progressive failure, there was absolutely no way to determine what would happen if a Richmond Insert designed under one criteria failed and its load was transferred to an adjacent pipe support designed using a different criteria. If the load was transferred in such a way that it caused the adjacent pipe support's anchor to give way, a chain reaction resulting in the failure of all the pipe support could follow.
Thus if one Richmond Insert fails and takes its randomly certified neighboring pipe support with it, the combined force will cumulatively take out all the remaing pipe supports until the entire pipe support system collapses. The end result is a l
l meltdown.
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L.y Day in and day out, Mr. Hasan pleaded with management .to this potentially catastrophic design deficiency. He O correct demanded that a uniform' design criteria be used-in certifying Rienmond Inserts, or at the very least that calculations and/or-experiment, ce performed to determine the engineering consequences of using different criteria on the same pipe supports.
Indeed, Mr. Hasan was blowing the whistle on the consequence of a fradulent scheme Texas Utilities implemented to certif', as-safe an unsafe pipe support system. By using three separate sets of criteria, Texas Utilities had created a complex scheme where a rejected pipe support could be sent from group to group to find criteria that would allow that particular pipe support to be certified. As it would turn out, Mr. Ryan oversaw the transfer of pipe supports from group to group. In effect, he was one of the chief ringleaders behind the fraudulent certification process.
Obviously, Mr. Hasan's constant whistleblowing over the use of. multiple sets.of criteria to certify the same pipe support and his constant rejection of pipe supports due to the use of inconsistent criteria particularly vexed Mr. Ryan for at least two reasons: first, it exposed the illegal scheme to possible detection, and second, it slowed production, interfered with schedules and caused cost over runs.
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IV. THE FRAUDULENT CERTIFICATION PROCESS 2..
L Mr. Ryan, Mr. Finneran, and others were nothing less than criminal racketeers engaged in a scheme to certify as' safe a defectively designed and constructed pipe support system.
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The scheme was simple: if a modified pipe support could not be certified by one group, the " scope of responsibility" for the failing pipe support was transferred to another grcup in the hope of certifying it without any rework. Rencher Deposition Transcript at p. 264: Chamberlain Deposition Transcript at pp.
95, 186, 190.
In essence, the fraudulent scheme for certifying defective pipe supports with multiple sets of criteria was illegal and resulted in a knowingly unsafe design. But Texas Utilities management did not care because it saved them money and kept them on schedule.
Mr. Chamberlain refers to this illegal scheme as the "9u-around." Chamberlain Deposition Trabscript at p. 190. As the name implies, a pipe suppor' design that could not be certified under its original criteria would go around from group to group in search of criteria that would allow certification.
This fraudulent scheme (hereinafter referred to as the "go-around scheme") was identified in the May 28, 1987 list of the 65 concerns Mr. Hasan originally identified in Cx 14.
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- s-11 According to Concern No. 23
There is_a concern that if supports did not meet the appropriate design criteria usir.g the NPS design specification,-the supports were sent to another pipe support design. group, such as PSE, and would be considered acceptable using different design criteria. This condition indicates that different design criteria was used in the various pipe support design groups (NPS, ITT-G and PSE).
See Cx 14 at p. 3.
When Mr. Rencher, one of Respondents' own witnesses, was asked under oath during his deposition if Concern No. 23 were true, he answered with an absolutely unqualified "Yes." 'Rencher Deposition Transcript at p. 247. Mr. Rencher oversaw both the NPS and ITT groups. He had first hand knowledge of the practice.
Whether or not he-knew it was illegal is anknown.
Similarly, when Mr. Chamberlain was asked under oath during his deposition whether Concern No. 23 were true, he .likewise testified unequivocally that it was common practice on site to
" transfer responsibility" from group to group during the certification process. Chamberlain Deposition Transcript at p.
- 95. Mr. Chamberlain pointed out during his deposition that one of the reasons pipe support packages were shifted from group to group was that modified Richmond Insert designs on site could not be certified pursuant to their original design criteria.
According to Mr. Chamberlain, if one group "did not have criteria addressing the Richmond Insert tube steel design...then we would transfer responsibility (from the group that originally designed the support) to the site engineering group [PSE}." Chamberlain Deposition Transcript at p. 95.
I L i I
The go-around scheme was brought expressly to the attention of the ALJ during the hearing and explicitly briefed in Complainant's post-hearing brief and reply brief. Prominently stated therein was the testimony of Mr. Rencher:
Q. ...were you aware whether or not Mr. Hasan rejected Mr. Ryan's pipe support engineering group [PSE] pipe supports while working in your group [NPS]?
- 4. There were pipe supports that were rejected out of my group, and I am certain Mr. Hasan had reviewed some of those.
O. And were they coming from Mr. Ryan's group?'
A. Yes, they were.
O. ...would Hasan attach a memo to [the PSE packages he was rejecting]?
A. Yes....
O. And [Hasan] would sign those memos rejecting
[Mr. Ryan's packages coming from PSE]?
A. Yes.
Hearing Transcript, at pp. .30-121. Also see pp. 125, 130, 239, 275.
Undeniably, the pipe supports making the go-around between PSE and NPS were being sent in an effort to get them certified.
Accc. ding to Mr. Rencher's deposition testimony:
Q. ...the NPS group was rejecting PSE supports I during the certification process?
A. Yes, I was aware of that.
Q. Were you aware of that in 1983?
A. Yes.
O. ...in 19847 A. Yes, sir.
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O. ...in 1985?
A. Yes.
Q. The NPS group was rejecting PSE packages during the certification process, right?
A. Yes.
Q. Of those that were being rejected, were they ever then recalculated under different criteria?
A. Yes.
Q. And then they were certified after they were recalculated uder different criteria?
A. Yes.
Rencher Deposition Tr., pp. 78-81, (emphasis added).
Mr. Rencher went on to testify that he had had numerous conversations with Mr. Ryan about how to lower the rejection rate of the PSE packages going into NPS. Rencher Deposition Transcript at p. 67.
Indeed, during the hearing, Respondents' own counsel
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elicited testimony from Mr. Ravada to the effect that NPS rejected pipe supports from PSE. In the words of Mr Ravada:
"Mr. Hasan's group [NPS) rejected some of the supports of our group [PSE) on the basis of the Richmond inserts failing...and
[those) support [s] came to our group [after that for certification]." Hearing Transcript at p. 88.
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'V. THE GO-AROUND SCHEME VIOLATED NRC REGULATIONS AND BREACHED CONTRACTUAL AGREEMENTS The licensing of commercial nuclear power facilities is regulated by the Nuclear Regulatory Commission pursuant to the Energy Reorganization Act (ERA). The ERA gives the NRC the power ~
to enact necessary regulations. Pursuant to 10 C.F.R. Part 50, Appendix B,(Quality Assurance Criteria for .vuclear Power Plants),
" Design changes, including field changes," shall conform to the
" original design and be approved by the organization that performed the original design," and that " changes to documents shall be reviewed and approved by the same organizations that performed the original review and approval.'" 10 C.F.R. 50, App.
B (I) and (VI)'(Emphasis added). Appendix B establishes that
.> under no circumstances are pipe supt. orts to be transferred between groups during.the design or field modification phases.
Appendix B forbids the transfer of PSE-designed supports into NPS for certification. It likewise forbids the transfer out of NPS l to the PSE group pipe supports that could not be certified under NPS criteria. Appendix B likewise establishes that field and l
l design modifications have to be made by the organization which designed the pipe support.
The record establishes that Texas Utilities management (Messrs. Ryan, Chamberlain, and Finneran) instituted a scheme to transfer pipe supports from group to group during the certification process. Both Mr. Ryan and Mr. Finneran knew that this practice to be in violation of both NRC regulations and the contractual arrangements between NPS, ITT, and Texas Utilities.
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The testimony establishing that pipe supports were certified by organizations other than the organization certifying the original: design is irrefutable. Mr. Rencher, without qualification, testified that the "NPS group was rejecting PSE packages durino the certification process." Rencher Deposition 1
Transcript at p. 81 (emphasis added). Mr. Rencher further testified that the PSE pipe supports transferred into NPS could.
not be qualified, and when that happened they were again transferred and qualified using still other criteria. Indeed, Mr. Rencher testified that a full "25 percent" of the PSE pipe supports transferred into NPS were rejected and returned to PSE and " recalculated under different criteria." Rencher Deposition Tr., at p. 81.
Obviously, Mr. Ryan knowingly violated 10 C.P.R. 50 App. B when he transferred the PSE pipe supports into NPS. He compounded the violation when he transferred the same pipe supports back out of NPS and into PSE whenever the support could not be certified by NPS, Not only did the illega2 transfer of pipe supports violate NRC regulations, it violated the contractual arrangements between Texas Utilities and its subcontractors, NPS and ITT. In perhaps the only truthful comment Mr. Ryan made during the hearing, he explained that There were separate contracts. The original PSE designs were (to be] reviewed by PSE. The original NPSI designs were (to be) reviewed by NPSI.
Hearing Transcript at p. 550. j i
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l l .i i VI. MR. RYAN WAS MANAGEMENT'S POINT MAN DURING THE ILLEGAL l GO-AROUND SCHEME AND AS SUCH DIRECTED IT Every scheme needs a key player. In the case of the go-around scheme, it was none other than Mr. Jay Ryan. Mr. Ryan l
l oversaw the transfer'of pipe support packages from group to group and used the PSE group as the staging ground. All rejected pipe.
supports, it seems, either originated out of PSE or were transferred into PSE (and then apparently transferred elsewhere).
Just as the testimony of Messrs. Rencher, Ravada, and Hasan established-the NPS-PSE transfer, Mr. Chamberlain's deposition established the ITT-PSE transfers. As Mr. Chamberlain testified:
...some companies did not have criteria addressing certain types of design. For example, ITT Grinnell did not have criteria addressing the Richmond insert tube steel design. If [a pipe support] got redesigned that way, then we would transfer responsibility for that hanger from
[ITT-)Grinnell to the site engineering group
[PSE).
Chamberlain Deposition Transcript, at p. 95 (emphasis added).
The process of transferring p pe supports back and forth between groups generated paperwork. The paperwork problem occurred after a pipe support was transferred and the second group still could not certify it. Only then would a line engineer fill out a three part " speed memo" addressed directly to Mr. Ryan. These speed memos unrecorded anywhere on site, were used to explain to Mr. Ryan the reason a particular transferred pipe supports had been rejected.
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i Mr. Rencher testified both during'the deposition and at the H hearing about the creation of these speed memos during the go-around scheme:
Q. [W) hen Mr- Hasan rejected Ryan's pipe support packager, [he would) attach a memo to those packages.
A. Yes....the memo would be initiated in my
. group, yes.
Q. .And [Mr. Hasan) would sign those memos rejecting [the l'SE-designed pipe supports that he could not certify using the NPS criterial?
A. Yes.
Tr. 120-121..
The speed memos attached to the rejected pipe supports were not logged or recorded on site. They were simply cover memos directed to Mr. Ryan and, as such, Mr. Ryan was free to do with them as he chose. He threw them away, destroying the paper trail that would.tell why the pipe support had been rejected. He was then free to get the pipe support certified elsewhere, albeit illegally. The fact that Mr. Hasan would reject pipe supports and attach a memo to the package addressed directly to Mr. Ryan, and that thereafter the very same pipe support would be certified in another group without modification is andeniable, as the following testimony of Mr. Rencher demonstrates:
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[By Mr. Kohn) Are you aware'whether or not Q. Mr. Hasan could not certify...some of.the l packages he was checking?
[By Mr. Rencher] He could not certify some A.
of the packages because of the.NPS criteria on Richmond inserts, yes.
Q. Did you take those packages to-the PSE group for certification?
A. Those' supports were rejected to the PSE group.
.Q. By " rejected to the PSE group," what do you mean?
A. Well, he attached a memo to it from my q'oup to the PSE group saying the supports were rejected for the following reasons...
Q.
_And would the PSE group then certify the packages...-
A. ...yes.
(By Mr. Kohn) And they could do that because Q.
PSE was using different criteria than NPS?
A. Yes.
Rencher Deposition Tr., at pp. 96-97 (emphasis added).
Once the memos were destroyed, no paper trail of the go-Not only was the transfer of pipe around scheme remained.
supports illegal, but so was the destruction of the paperwork
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accompanying the' rejected supports.2/
l To date, it would seem that only two copies of such cover memos escaped Mr. Ryan's watchful eye. One of them is from a Mr.
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M.J. Kaplan to Mr. Ryan (attached hereto as Exhibit 1). This speed memo clearly states that it is being issued due to problems Mr. Kaplan (who was removed from the site due to his repeated rejection of pipe supports and replaced by Mr. Hemrajani)8/
found when attempting to certify a PSE-designed pipe support with NPS criteria while. working in the N:?S group. The speed memo clearly states that the pipe support package was being rejected during the certification process. Indeed, the rep 1'; portion of this memo is signed by Mr. Rencher, and states that the pipe support, as rejected by Mr. Kaplan, could nonetheless be
" certified" under NPS criteria pursuant to authority from NPS's home office.
- 7. Indeed, a 10/18/84 ASLB Order demanded Texas Utilities to provide the Licensing Board with "...all relevant memoranda and I deficiency paper that indicate directly or indirectly the awareness and resolution..." for every " unstable support" ;
existing on site.
- 8. Mr. Kaplan was not identified in Respondents' answers to interrogatories requesting the identity of all of Mr. Hasan's supervisors. Indeed, when Complainant's counsel attempted to ask questions about Mr. Kaplan during depositions of Respondents' witnesses, Respondents' counsel refused to allow the witness to answer the questions. Some of these questions were certified for the purpose of appeal.
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6 The fact that the-NPS home office was. involved in certifying i
PSE-designed pipe :Jpports demonstrates that the NPS home office would have known'of the illegal scheme. Respondents' claim that NPS had no knowledge of Mr. Hasan's whistleblowing activities is L simply not credible, given the apparent complicity of NPS in the go-around scheme.
The arrogance and utter contempt for law on the part of y
Respondents.is demonstrated in that after Messrs. Hasan, Rencher, and Ravada had testified at length about the go-around scheme, Respondents allowed (indeed encouraged) Mr. Ryan to lie straight-O faced that the scheme never existed -- or that at least Mr. Ryan had no knowledge of'it. Mr. Ryan's repeated denial of the fact that pipe supports were being transferred back and forta between 4 groups is disgusting, immoral, unethical, and contemptuous.
Simply stated, it is perjury.
Mr. Ryan chase to perjure himself rather than admit to the j go-around scheme, when in fact he was the key player. His testimony was clear and unequivocal -- that Mr. Hasan never reviewed a PSE pipe support while working in the NPS group. This 3 testimony is consistent with his sworn and signed deposition testimony, which reads:
O. [By Mr. Kohn] Did you know that Mr. Hasan was rejecting packages from your group?
l A. [By Mr. Ryan] No. Why would he be?
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O. Did Mr. Hasan reject PSE packages due to inconsistent criteria [between] NPS guidelines [and PSE guidelines]?
A. He didn't review any PSE packages.
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Q. ...your testimony is that Mr. Hasan reviewed no PSE packages?
A. [Hasan) only reviewed NPSI packages when he was in the NPSI group.
Q. [D]id Mr. Hasan ever reject a PSE package that had already been certified because it did not meet NPS guidelines?
A. You can't' cross guidelines...you don't cross design guidelines to review packages.
. Ryan Deposition Tr., at pp. 8-10.
Similarly, Mr. Ryan's hearing testimony states that while in the NPS group, Mr. Hasan never reviewed a PSE-designed pipe support package:
Q. (By Mr. Mack) And were'[PSE-designed pipe supports] ever reviewed by anyone at NPS?
A. (By Mr. Ryan] No....NPS would have reviewed their original designs. Personnel in PSE would have reviewed PSE designs.
Q. Well, what if, in fact, what occurred was something came out of PSE and it was being reviewed by NPS? Would that create a problem?
A. It wouldn't happen.
Q. It would never happen?
. No.
O. Okay. So that while [Mr. I?asan) worked (in the NPS group] no package designed in your group [PSE] would ever be reviewed by Mr.
Hasan.
A. That is correct, i (
l Tr. 540-541.
1 l
l
.1 a
- ')
1 0 Are you certain that none.of your (PSE) 'I packages were ever reviewed by Mr. Rencher's l- group [NPS) during the time...Mr. Hasan was-working there?
A. There were-separate contracts. The original PSE designs were reviewed by PSE. The 1 original NPSI designs were reviewed by NPSI.
Tr. 549-550.
VI. IN VIOLATION OF LAW AND LEGAL ETHICS, RESPONDENTS' COUNSEL ALLOWED MR. RYAN TO PERJURE HIMSELF l'
Respondents' counsel cannot in good faith deny knowledge that.PSE-designed packages were being transferred into the NPS c group and then certified with NPS criteria. The facts leading to this conclusion are inescapable.
First, Respondents' counsel was present during the deposition testimony of Mr. Rencher and Mr. Chamberlain. Indeed, when Mr. Rencher was questioned about the illegal transfer of pipe supports'from PSE to NPS, Respondents' counsel interrupted the questioning to apparently correct Complainant's counsel's questions regarding the direction of the flow of packages between NPS and PSE:
O. (BY MR. KOHN) The NPS group was rejecting PSE packages during the certification process, right?
A. Yes.
Q. Out of all the NPS packages going to PSE,
' what percentage were being rejected?
A. Of all the NPS packages going to PSE?
MR. WOLKOFF: You've got it_rgversed, l Rencher Deposition Tr., at p. 81.
1
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- - - - - - _ _ _ _ _ _ _ . _ _ .m.-m _ _ _ , . _ _ _ _ _ _
Clearly, Respondents
- counsel, Mr. Wolkoff, had a grarp of-
< the apparently illegal transfer of pipe supports between PSE and
.NPfL sufficient to allow him to interrupt Complainant's counsel's questioning to assert his knowledge of the direction of how the pipe supports flowed between PSE and NPS.
Similarly, at the hearing, Respondents' counsel, Mr.
Wolkoff, subjected Mr. Rencher, under oath, to a series of leading questions that detailed the flow of pipe supports between PSE and NPS:
BY MR. WOLKOFF [ Cross-examination of Mr.
Rencher]
O. During the time period that Mr. Hasan worked under your supervision at Comanche Peak, how many different sets of design criteria were in place?
A. There were three...ITT Grenelle [ sic), NPSI and the PSE design guidelines.
Q. And did
- hey differ one to another in certain respects?
A. Yes, they did.
O, 'But I take it each pipe [ support) that was qualified had to be qualified under one of the three different sets of criteria. Right?
A. That is correct. j Q. What set of criteria was employed in (the f NPS] group?
A. The time he [Mr. Hasan) was in my group, the NPSI criteria.
Q. And what about this group with Mr. Ryan where the packages were coming from Mr. Ryan? What type of criteria were employed there? ,
l A. That was the PSE design guidelines. l
(- i
(-
l L___________________._
r O. And Mr. Hasan's complained to you when he reviewed those packages-[refering to Mr.
Ryan's PSE packages] that the criteria that Mr. Ryan's group used were not the same as the criteria that he was using.
A. Yes.
' Hearing . Transcript, at pp. 124-125 (emphasis added).
The fact that Respondents' counsel could lead Mr. Rencher by the nose. detailing the transfer of pipe supports between PSE and NPS, establishes knowledge on the part of Respondents' counsel.
As Mr. Wolkoff's questioning of Mr. Rencher establishes, Respondents' counsel obviously had to know of the illegal transfer of pipe supports between groups. How else could he lead his own witness through the illegal transfer process in the first place.
It is Mr. Wolkoff himself who states on the record that pipe 1
g supports were " coming from Mr. Ryan['s group]" only to be
" reviewed" by NPS and certified with different criteria than the criteria "Mr. Ryan's group used" to design the pipe support in the first place. The fact that the testimony Mr. Wolkoff provided when examining Mr. Rencher resulted in some of the strongest evidence demonstrating the fact that pipe supports were illegally being transferred between the different groups on site is the greatest indictment imaginable.
Given Mr. Wolkoff's questioning of Mr. Rencher during the hearing, coupled with his correction of Complainant's counsel during Mr. Rencher's deposition, demonstrates beyond any conceivable doubt that Respondents' counsel had actual knowledge s
( I
H O
s v. . .
v Lof the fact that_Mr. Ryan was sending PSE-designed pipe supports to NPS for qualification using NPS criteria.1/'
The facts speak for itself: after correcting the record as to the direction:of the flow'of packages between.NPS and PSE if ,.during Mr. Rencher's deposition, and after leading'Mr. Rencher
.through the illegal transfer of pipe supports'between NPS and PSE
.when h'e testified at the hearing, Respondents counsel allowed' Mr. Ryan.to falsely testify that pipe. support packages.were not being: transferred between PSE and NPS.lS/
- 9. Indeed, the Ropes & Gray law firm, who represents the ,
Respondents, was lead counsel in the licensing hearings before l the ASLB. Furthermore, Mr. Wolkoff submitted afidavits on the' !
part of the entire Ropes & Gray law firm and therefore, the knowledge of the attorneys engaged in the licensing proceedings-
' before the ASLB must be. imputed to Mr. Wolkoff as well. Also, as detailed.in Complainant's Second Motion for
' . Default /Disqualificaiton, at p. 13, a co-counsel relationship between predecessor counsel, who withdrew pursuant to settlement for this proceeeding, and the Ropes & Gray firm exists.(or existed when relevant to this case:. Therefore, knowlege'on the part of predecessor counsel is likewise imputed to the Ropes &-
Gray law firm concerning knowledge of the transfer between PSE and NPS pipe supports during the certification process.
Beyond knowlege on the part of Ropes & Gray over the issue ,
of the apparently illegal transfer of pipe supports between the. (
1 various groups on site, the fact remains that exhibits apparently
. originally altered by predecessor counsel during trial preparation, were submitted onto the record of this proceeding by Mr. Wolkoff with the knowledge that said exhibits were altered.
As will also be demonstrated in Section VIII, infra., j 10.
Respondents' counsel evdidently suborned perjury after Complainant initialy attempted to expose to the ALJ that Mr. Ryan had perjured himself at the hearing. In their Reply brief, Respondents' counsel defended Mr. Ryan's perjurous statements with false and misleading facts intending to, and in fact suceeding in, misleading the ALJ about the perjurous nature of j Mr. Ryan's testimony.
i N
)i
- - . , - - -..a_s_-_a.________,.,_____,___ _ _ _ _ _ _ _
n, l
Regardless of when Respondents' counsel came to know of the illegal go-around scheme, he was under a legal and ethical duty to stop Mr. Ryan from perjuring himself at the hearing. If Respondents' counsel did indeed know that Mr. Ryan was about to t perjure himself and failed to halt this travesty of justice, Respondents' counsel is utterly inconsistent with his duty as a court officer and warrants the imposition of harsh sanctions, as i the case law below demonstrates. Following the case law on perjury and subornation of perjury, Complainant wi11' demonstrate that not only did Respondents' counsel allow its witnesses to perjure themselves, but that counsel suborned the perjured statements as well.
Without question, "an adverse party's fraud or subornation of perjury permits relative free reopening of the judgment {in this case recommended decision) when the perjury goes to the heart of the issue." Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826, 832 (7th Cir. 1985). Also see, McKissick v. U.S., 379 F.2d 754 (5th Cir. 1967); Rosier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978); Harre v. A.H. Robins, 750 F.2d 1501, 1503 (llth Cir. 1985).
As an administrative agency, the Department of Labor has the
" inherent" power to do what is reasonably necessary to prevent fraud, irrespective of statutory authority. Alberta Gas Chems.,
4 Ltd. v. Celanese Corp., 650 F.2d at 12-13 (2nd Cir. 19__).
There is "no right whatever -- constitutional or otherwise -- for a defendant to use false evidence." Nix v. Whiteside, 106 S.Ct.
(
l.
t
-4 1
988, 998 (1986). Any attorney suo even cooperates with a" l client's planned perjury risks " prosecution for suborning 1
perjury, and disciplinary proceedings, including suspension or i disbarment." Id. at 998. Also, any attorney "who aids false
- testimony by questioning a witness when perjured. responses can be anticipated risks prosecution for subornation of perjury...."
Iji. at.996. Simply put, "under no circumstances may a lawyer either advocate or passively tolerate a client's giving false testimony." Id. at 996 (emphasis added). Even an attorney who attempts to remain willfully ignorant where known facts call for further investigation violates his professional and legal duty should he refuse to investigate tr3 situation further. Floride Bar v. McLachren, 131 So.2d 371, 372 (Fla. 1965) (suspension of attorney for failing to make reasonable inquiry); State v.
Zwillman, 270 A.2d 284, 289 (N.J. 1970) (attorney has responsibility to' inquiry into falsity of client's representations if he "should know or reasonably suspect that the client's representations are false.") Also see, United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 n.13 (3d Cir. 1977)
(DR4-101(C)(3) read to require disclosure): McKissick, 379 F.2d 754, 761-62 (5th Cir. 1967); United States v. Grasso, 413 F.Supp.
166, 171 (D. Conn. 1976) (" probable perjurious testimony must, of course, be immediately reported to the presiding judge in the interests of justice and to preserve the integrity of the judicial process"); In re Hoover, 46 Ariz. 24, 30, 46 P.2d 647, 649-50 (1935); Hinds v. State Bar, 19 Cal. 2d 87, 93, 119.P.2d ,
s J
(
- r .
134, 137 (1941); Thornton v. United States, 357 A.2d 429, 437-38 (D.C. 1976).
As the depositions and hearing testimony of the pertinent witnesses occurred exclusively in.the state of Texas, it is axiomatic that the standards set forth under Texas state law are the minimum attorney standard of conduct counsel must adhere to.
Under Texas law, "a lawyer shall not{:]
(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.
(8) Knowingly engage in other il]egal conduct or conduct contrary to a Disciplinary Rule."
Texas Code of Prof. Resp. DR 7-102 (A)(4)-(8). Tex. Civ. Stat.
Ann Tit. 14 app. Cit. 12 58 (Vernon 1973). In addition, A lawyer who receives information clearly establishing that:
(1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so he shall reveal the fraud to the affected person or tribunal.
(2) A person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.
Id. at (B)(1) and (2).
s t.
GT:' i
.d' s s
- p. .,
In Nix v. Whiteside,'the Supreme Co'urt points out that:
7 .-
The more recent Model Rules of Professional Conduct-(1983)'similarly admonish attorneys to obey.all. laws in'the course of representing a client:
1
' " RULE 1.2: Scope of Representation.
"(d) A lawyer shall not counsel a client ~
to. engage, or assist a client,-in conductL that the lawyer knows is criminal.or fraudulent...."
Both the Model Co'e d of-Professional' Conduct and.
the'Model Rules of. Professional Conduct also' adopt the specific. exception from the attorney-client
~
privilege for' disclosure of perjury that his client intends to commit or has committed. DRf4-101(c)(3)L(intention of clientoto commit a crime);
g.
Rule 3.3 (lawyer'has duty to disclose falsity'of evidence even if. disclosure compromises client confidences). Indeed, both the Model Code and the Model Rules do not merely. authorize disclosure by counsel'of client perjury; they require such discloure. See Rule 3.3(a)(4); DR.7-102(B)(1);
Committee on Professional Ethics.and Conduct ~of-Iowa State Bar Association v. Crary, 245 N.W.2d
( 298 (Iowa 1976).
.These standards confirm that the legal profession has accepted that an attorney's ethical duty to advance the interests of his client'is i limited by an equally solemn duty to comply with the law and standards of professional conduct; it L specifically ensures that the'clier. may not use ,
false evidence." .I Id., 106 S.Ct. 988, 995-(1986)(footnote omitted, emphasis in 4
l original).
i Unquestionably, the Fifth Circuit has always required mandatory disclosure by an attorney to the Court whenever fraud, l including perjury, appears to be present. If any attorney fails 1
i- to do so, the court states that the offending attorney should be i
w l
l A-l
%c rag #m=,?, .
lx. , ,
p '
? ;f i 't w
subjectito' discipline had he continued inlthe
.defensefwithout makingia report to the court'. -The-attorney .not;only could, but; was. obligated to,.
Emake suchidisclosure to;the court as necessary to withdraw'the perjured _ testimony.from the Lconsiderati'on of1the' jury...This was essential for
~g ood;judi'cial. administration and'to protect the-public.
McKissick, 379;P.2d 754,.761 (5th Cir. 1967).
~
VII. ' RESPONDENTS'. COUNSEL IS GUILTY OF SUBORNATION OE O PERJURY U0 Federal statuteLdefines sbborna' tion of'perjuryfas~the
. procurement'of perjury: "Whoever procures another.to commit any 7
perjury .is guilty of subornation'of perjury." 18.USC S1622.
Perjury lis[ defined as:
'The willful assertion as to a matter of f act,-
opinion, belief, or knowledge., made by a witness in a: judicial proceeding as part of his evidence, either?upon oath or in any form allowed by law to y be substituted for an oath, whether such evidence is'given in open court, or in,an affidavit, or otherwise, such assertion being material to the.
issue or point of inquiry and known to such witness to'be false..
Black's Law Dictionary,. Revised 4th. Edition.
. Clearly, Mr. Ryan willfully asserted at a judicial ~
proceeding under oath material false statements concerning the
^
transfer of pipe supports between groups and the improper use of inappropriate' design criteria.
Additionally, it would seem that Respondents' counsel-allowed ~Mr.-Ryan to make the perjured statements, knowing that Mr. Hasan's case rested on the premise that he blew the whistle on the use of multiple sets of criteria during the certification of-the Comanche Peak pipe support system.
+
________m _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ _ . _ . . . _ _ . _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _
, 1 The fact is that Respondents' counsel knew in advance that Mr. Ryan would perjure himself rather than admit that multiple sets of criteria were used to certify the same pipe support.
It would seem that Mr. Ryan's false testimony regarding the certification of PSE-designed pipe supports with NPS design criteria constitutes perjury, and that Respondents' counsel's allowing Mr. Ryan to testify falsely at his deposition and during the hearing (the same counsel is believed to have represented Mr.
Ryan personally during this proceeeding) approached subornation of perjury. "Under no circumstances" is an attorney even allowed to " passively tolerate a client's giving false testimony," Nix
- v. Whiteside, 106 S.C. 988, 996 (1986) (emphasis added). If that attorney should in any way cooperate with a client's planned perjury or even " aids false testimony by questioning a witness when perjured responses can be anticipated risks prosecution for subornation of perjury " including suspension or disbarment." Id.
at 996-998.
The Fifth Circuit held in McKissick, that any attorney who even attempts to remain willfully ignorant where known facts call for further investigation violates his professional and legal I
duty should he refuse to investigate the situation further.
McKissick, 379 F.2d 754, 761-62 (5th Cir. 1967). Also see:
Florida Bar v. McLaghren, supra; State v. Zwillman, supra; United States ex rel. Wilcox v. Johnson, supra,; United States v.
Grasso, supra., In re Hoover, supra., Hinds v. State Bar, supra.,
Thornton v. United States, supra.
1 i
,i
a Respondents
- counsel went well beyond turning their heads to perjury; .they went so far as to cover-up Mr. Ryan's perjured testimony with a web of false statements -- unsupported by the established record and the truth. Such conduct, it.would-seem, constitutes subornation of perjury. Under Supreme Court'and Fifth Circuit jurisprudence, counsel's tacit. submission of Mr.
Ryan's perjured testimony into the record, combined with Respondents' counsel's; reliance on that testimony to establish its' case, evidently constitutes the subornation'of perjury.
The truth of the matter is that after the close of the hearing and after. Complainant's counsel explicitly exposed Mr.
Ryan as a perjuror, Respondents' counsel engaged in a pattern of conduct with the knowledge and intent of deceiving the court to the effect that Mr. Ryan's testimony was not perjured, knowinc full well that it was.
VIII. RESPONDENTS' COUNSEL OVERTLY ENGAGED IN SUBORNATION OF PERJURY WHEN FILING RESPONDENTS' POST-TRIAL REPLY BRIEF TO THE ALJ When Mr. Ryan's perjured testimony was explained to the ALJ in a brief filed by Complainant, Respondents' counsel invented a story that describes the transfer of pipe support packages from the PSE " field group" into the NPS group as " normal." In i Respondents' counsel's own words: "In the normal course, NPSI packages flowed from the PSE field group to the NPSI unit."
Respondents' counsel then asserts that only NPSI-designed packages were returned to the NPSI group whenever the PSE " field 42 -
(.
1 IX. . RESPONDENTS' COUNSEL UNLAWFULLY ALLOWED OR ENCOURAGED JOHN FINNERAN TO SUBMIT PERJURED TESTIMONY AND Respondents' 7
l- COUNSEL KNOWINGLY CONTINUES TO PARADE MR. FINNERAN'S PERJURED STATEMENTS BEFORE THE DOL AS-IF THEY WERE TRUE.
Little background is needed to present the perjured testimony of Mr. Finneran. On August 19, 1985 Mr. Hasan met with t
Mr. Finneran for over eight hours. From the beginning of the meeting until its end, Mr. Hasan raised grave and serious safety concerns directly to Mr. Finneran. One such safety concern was that the stiffness of pipe' support hardware was not included in the pipe support stiffness when calculating the overall pipe support stiffness sent to Westinghouse for the Class 1 piping analysis (hereinafter " improper stiffness"). The concern over improper stiffness was one of many safety concerns Mr. Hasan constantly brought to the attention of Management. Although Mr.
Hasan first brought his concern of improper s'tiffness to the attention of management prior to the August 19, 1985 meeting with Mr. Finneran, the first time Mr. Hasan told Mr. Finneran of this concern occurred during their August 19, 1985 meeting.
Indeed, Mr. Hasan testified that he not only raised the issue of stiffness during the August 19th meeting, but that he begged and pleaded with Mr. Finneran to retrieve certain certified pipe support p'ckages so Mr. Hasan could pinpoint exactly where and how incorrect stiffness values had been calculated and incorporated into the certified design of the l Comanche Peak pipe support system. According to Mr. Hasan's
(
testimony at the hearing:
C. [By MR. MACK) And what'is it that you said
[to Mr. Finneran concerning improper stiffness of Class 1 pipe supports during the August 19th meeting]?
A. I explained to him at~ length -- at. tremendous length that what happened.in that period when
'Rencher told me or told us not to include that stiffness of the hardwares for computing.
the stiffness of the Class 1 piping system.
And after listening "o all this -- and then I told.him that, why don't you recall those particular packages to look for yourself....
Tr. 286, emphasis added.
A. ...I was bringing very, very serious concerns to [Mr. Finneran] right from the. morning to the end [of our August 19th meeting) and I was literally, virtually, you know, pleading or begging him that, you have got those
, packages; please bring it to here; I will show it to you, what was the problems....
3 Tr. 484, emphasis added.
- A 't A. -- I pleaded with him that, please recall those packages so that I can show where the mistakes are being made, and he refused to recall those packages....
Tr. 329, emphasis added.
Q. You discussed specific packages with Mr.
Finneran?
A. I was telling him to bring what I did discuss, the technical item, like, a stiffness value of Class 1 piping support..
I wrote on some of the packages (that) those packages were being done incorrectly, and I was raising objections, at least on two of them, and at -- in one package, Mike Chamberlain just came and took away the package from me....
'i l-L n
4 .s I
h ,
O. Excuse me'. Did you tell Mr. Finneran to bring in packages or ask hin?
L' i
A. I requested him to bring _certain' packages so that I can show it to him what was going on.
O. To the meeting?
l A. To the meeting. 'Right.
0 ...Did he accede to your request?
l A. He did not... -
Tr. '484-485, emphasis added.
Besides Mr. Hasan and Mr. Finneran, Mr. Hasan's August 19th discussion of improper stiffness occurred in the presence of Mr.
Rencher and Mr. Westbrook (Mr. Westbrook was not called as a witness for either side).
Mr. Rencher consistently testified, at his deposition and at the hearing, that not only did Mr. Hasan raise improper stiffness a to Mr. Finneran during the August 19th meeting, but that Mr.
Finneran actually told Mr. Hasan that Stone and Webster already knew of the improper stiffness concern and was about to be corrected and that as such Mr. Hasan need not worry about it any further. According to Mr. Rencher's testimony: "Mr. Finneran and I... assured him that Stone and Webster was aware" of the concern and was currently developing new " design criteria" to " address" it. Rencher Deposition Transcript, at p. 161.
Mr. Hasan's concern over incorrect stiffness values sent to Westinghouse was that Westinghouse used the incorrect stiffness values to calculate the actual load each pipe support had been designed to withstand. The Westinghouse-calculated loads were s
fo : ,
then used on site to certify the' design of the Class 1 piping j- system. Hearing Transcript at pp. 235, 238, 263-264.
-The August 19th meeting lasted for over eight hours. At the start of the meeting Mr. Finneran stated to Mr. Hasan that he was going to take notes of.the meeting and'he would ask Mr. Hasan to sign the' notes at the conclusion. But each time Mr.. Hasan would raise a technical issue, Mr. Finneran would not record it in his-notes. Mr. Hasan was disturbed by this and'at the end of the meeting he' refused to sign. One of the technical concerns Mr.
Hasan raised was improper stiffness.
After Mr. Hasan refused to sign, Mr. Finneran asked Mr.
Hasan to' leave the meeting. Mr. Hasan complied and thereafter was called back into the meeting room. The only one present at this point was Mr. Finneran. At that point in the meeting Mr.
- i. Finneran asked Mr. Hasan to list any technical inconsistencies he knew of so that Stone and Webster could see to it that those matters could also be resolved. Mr. Hasan then pulled a list of some technical concerns from his wallet and listed them for Mr.
Finneran. The list was not retained by Mr. Hasan. Mr. Finneran then prepared a second memorandum allegedly listing all of the concerns Mr. Hasan raised to him on August 19th. Mr. Finneran listed exactly ten items; improper stiffness is not included.
The ten inconsistencies are listed below as recorded by Mr.
Finneran:
(
_ - - _ _ . - _ - _ ._ __ n
[y. -
r.
l
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j
- 1. Consistency should be achieved regarding the L
assessment of the weld between a baseplate
> ' and an embedded. plate (plate and shell versus l i r. sea r ) .
- 2. Plate and shell weld allowable should be-listed in the guidelines.
- 3. Supports in containment should always use allowables at 300*.
- 4. 2" architectural concrete topping should always be considered for Hilti embedments.
- 5. In evaluation of Richmond Inserts, consideration of both rod and insert interactions should be documented.
- 6. Richmond Insert Bolt should be assessed for bending as well as shear and tension.
- 7. The weight of a Jonstant support should always be considered in spring support design.
- 8. Each calculation sheet should be initialed.
- 9. Cinched U-bolt supports (class 5 and 6) inside stress problem boundaries should be assessed.
- 10. There should be a calculation qualifying the washer plates on tube steel supports.
A review of these alleged ten inconsistencies demonstrates that the words " stiffness," " Class 1," and " Westinghouse" are not mentioned anywhere in Mr. Finneran's August 19th memo [Cx. 7 and Rx 3].
Nonetheless, as the record establishes, Mr. Hasan repeatedly raised the issue of incorrect stiffness values of Classs 1 pipe supports to Mr. Finneran during the August 19th meeting. Mr.
Finneran's assertion in his August 19th p,emo that Mr. Hasan "did not have any concerns which he felt were important to safety at the plant".
0
7----.--
Mr.. Finneran expressly denied that Mr. Hasan raised
- - stiffness values of the class 1 piping system to him on August 19th, as the following testimony-depicts:
O. Do you-know whether.the subject matter of the stiffncss values of the class 1 piping systems was among.the either [ sic]
consistencies or concerns or any topic during that meeting [of August 19th].
'A. g. I don't believe so.
Tr. 21, emphasis added.
Q. ...did the discussion of those [10]
inconsistencies take up the bulk of the seven hours of the (August 19th] meeting?
5 A. No. The ten items were - as I said, it was the last --very last part of the meeting, and he related them to me, and I wrote them down, and that was about it. There wasn't.any discussion that I recall between he and I on the items.
3 Tr. .
Q. Fine. And on the second page [of CX 7] you list a series of items --I am sorry. I don't remember how you characterized them.
A. Inconsistencies, I believe.
Q. Inconsistencies.
A. Uh-huh.
Q. Were those the only inconsistencies that Mr.
Hasan brought to your attention in the course of that meeting?
A. Of this (August 19th] meeting?
Q. Yes, sir.
A. Yes.
Tr. 31-32, emphasis added.
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7 - 7-n L I i' 1 1
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l A. Mr. Finneran Perjured Himself By Not Admitting that Mr. Hasan Raised Stiffness Values of Class 1 Pipe Supports t.
During the August 19th Meeting The testimony of three witnesses establishes the proposition that Mr. Finneran perjured himself. In addition to the testimony L
of Cofnplainant, two adverse and hostile witnesses, Mr. Rencher nnd Mr. Chamberlain, testified under oath th.ht stiffness was ;
raised by Mr. Hasan to Mr. Finneran on August 19th. This i
testimony is set forth below.
- 1. Deposition testimony of Mr. Rencher In no uncertain terms, the deposition testimony of Mr.
Rencher completely contradicts Mr. Finneran's denial that Mr.
Hasan raised stiffness of the class 1 pipe supports as a safety concern during the; August 19th meeting. On no less than a dozen separate occasions Mr. Rencher testified that Mr. Hasan raised a concern over the method of calculating the stiffness values of the class 1 piping system.
Mr. Rencher had absolutely no self interest in giving testimony contrary to his boss, Mr. Finneran. Indeed, it is the rare individual who has the strength to testify against his superior.
The deposition testimony of Mr. Rencher is devastating:
4 Q. [By Mr. Kohn} Did Mr. Hasan...on August 19, 1985 [ bring to your attention) the fact that stiffness of Class 1 pipe support systems did not consider the stiffness of the hardware.
C A. [By Mr. Rencher] I believe he mentioned it in that meeting, yes.
(
g-- __
h
- a. ,
8 A 0 V
/ Q. Do you know if anyone followed up on that concern?
A. Yes.
Q. Who followed up on it?
A. I believe it would be John Finneran.
Q. Did you have any discussior,s with Mr.
Finneran about how to proceed with Mr.
Hasan's concern [over the fact.that incorrect i
stiffness. values had been sent to Westinghouse]?
A. Yes.
Q. And what is the sum and substance of those 4
discussions?
A. When Mr. Finneran and I talked after that time about Stone & Webster developing criteria, we made sure that Mr. Finneran mada aware to them that this is an item that needed to be considered in the development of their design criteria.
Rencher Deposition Tr. at 95-96, (emphasis added).
Mr. Rencher's testimony was clear: not only did Mr. Finneran and Mr. Hasan discuss the fact that incorrect stiffness values of Class 1 pipe support system had been sent to Westinghouse in the presence of Mr. Rencher, but that Mr. Finneran and Mr. Rencher continued discussing Mr. Hasan's concern after the meeting ended!
On June 2, 1987, the depostion of Mr. Rencher recommenced.ll/
t
- 11. In violation of subpoena, Respondents
- cousnel ordered Mr.
Rencher to walk out of his May 29, 1987 deposition at 3:15 pm, evidently shortly after Respondents first received the letter from the NRC to Texas Utilities, dated May 28, 1987 (CX 14).
Rencher Deposition at 144-145. Respondents' cousnel returned on Respondents' conduct June 2, 1987 only upon order of the ALJ.
went unsanctioned.
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e At: that' time'Mr. Rencherufurther testified:
O.- .[BY'MR.-KOHN) Mr. Rencher, do you know about
- that Westinghouse'letterLconcerning.the-stiffness of. Class l' pipe supports?
- MR. WOLKOF': . Objection.
A. Calculated . stif f nesses of Class' l' pipe f' supports were sent to Westinghouse.
Q ~. . -[:BY MR. KOHN) All right. 'And what year were they sent?
A. 1982, 1983, 1984.
O. And were you aware that that list did not'
, con' sider the stiffness of the hardware for many of the Class 1 pipe supports contained in that list?
LMR. WOLKOFF: Objection. You're i , testifying, Mr. Kohn.
A. No [Mr.'Rencher's testimony diverges here.
from Mr. Hasan# who testified that he first raised this with Mr.'Rencher and others'in 1982; Mr. Chamberlain nonetheless testified a- at his deposition that~ management knew of this concern in 1985. .See, Chamberlain Depo.
y 'at 96-97).
Q. [BY MR. KOHN) Did Mr. Hasan bring this to
.your attention on August 19th, 19857 A. I believe.he mentioned it [ incorrect stiffness values) in the meeting that I participated in with John Finneran and him.
Q. Was anything done -- do you know if anything was done'to check Mr. Hasan's concerns regarding not calculating stiffness of hardware sent to Westinghouse?
A. In sum and substance, Mr. Finneran and I discussed the concerns Mr. Hasan raised 'n~
that meeting [of August 19th) and assureo him-that Stone & Webster was aware of these concerns so that the Stone & Webster design criteria which was being developed would j address his concerns. :
-Rencher Depo. Tr. at 164-165, emphasis added.
. I..
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B Later during his deposition, Mr. Rencher;once again confirmed that Mr. Hasan raised a concern over incorrect stiffness values to Mr. Finneran during their August 19th meeting:
Q. Do you recall Mr. Hasan raising technical disagreements while you were present at the August 19, 1985 meeting?
A. I remember one.
Q. Which one was that?
A. It concerned stiffnesses of Class 1 pipe supports.
Q. Did Mr. Hasan complain that you refused to or did not write any memoranda concerning Mr.
Hasan's problems that he had in the way the stiffness was being calculated?.
A. Beyonc the fact that he mentioned it, I don't remember much else of what was said about it, specifically.
Q. ?he stiffness of Class 1 pipe supports that you remember Mr. Hasan raising during the Aagust 19 meeting, when did Mr. Hasan first bring that to your attention?
A. I don't recall. I think it was at that
[ August 19th] meeting.
Rencher Depo. Tr. at 237-238, emphasis added.
- 2. Hearing testimony of Mr. Rencher On direct exam, Mr. Rencher's testimony was equally unequivocal: On August 19, 1985, in the presence of Mr. Rencher, Mr. Hasan raised told Mr. Finneran about his concern over the stiffness values sent to Westinghouse. Equally critical, was l<
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4 Mr. Rencher's testimony that not only was the concern raised, but that.Mr. Finneran understood the significance of the concern as well.
Q. {BY MR. MACK) In that [ August 19th) meeting in your presence, did Mr. Hasan raise a concern over the stiffness of Class 1 pipe supports?
A. [BY MR. RENCHER] Yes, he did.
Q. In the presence of Mr. Finneran?
A. Yes.
Q. Did the two of them { Messrs. Hasan and Finneran} hold a discussion about that?
A. It was discussed in that meeting, yes.
O. And Mr. Finneran was a participant in that discussion.
A. Yes, sir.
o O. Do you recall whether14r. Hasan in that meeting was concerned that the stiffness values of the' hardware had not been calculated for NPS Class .1 pipe supports?
A. Yes.
O. And did he express that concern to Mr.
Finneran?
l A. Yes, he did.
Q. And Mr. Finneran understood the concern?
A. Yes, he did.
Tr. 117-118.
There is no room for doubt that Mr. Finneran's failure to recall certain packages Mr. Hasan brought to his attention in
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. .e order to verify what he already knew-(Mr. Hasan had first
' identified the problem to management back in 1982) that the calculation of the stiffness values for the entire Class 1. piping system contained gross engineering errors. Not only did.Mr.
Finneran refuse to recall the packages, he knowingly prepared memoranda falsely stating that Mr. Hasan had absolutely no safety concerns. These memoranda (RX 45, 31; CX 7) would become the
- centerpiece of Respondents' defense to Mr. Hasan's case. Mr.
Rencher confirms the obvious: Mr. Hasan's concern over Class 1 stiffness values sent to Westinghouse is not mentioned in Mr.
Finneran's memorandum:
O. [BY MR. KACK) This is Complainant's Exhibit 7, which has been characterized as Mr.
Finneran's list of inconsistencies arising out of the August 19 meeting. Is the problem you mentioned that came up at that meeting about the calculations for stiffness of certain Class 1 U-bolts on the list?
A. Let me check. (Perusing document.)
O. Let me get my phrase right -- stiffness values of the hardware for NPS Class 1 pipe support or stiffness of Class 1 pipe support.
Is that on the list?
A. I don't see it here. No.
Tr. 144.
Respondents' examination of Mr. Rencher plainly demonstrates the total lack of concern for the truth. 'espondents' counsel asked the witness excessively leading questions with false premises in an attempt to get Mr. Rencher to contradict both his hearing and deposition testimony. According to the transcript,
(
l .n' Mr. Wolkoff: asked Mr. Rencher:
O. Do you remember just reading about it Istiffness of Class 1 pipe supports] in Mr.
Finneran's notes?
A. I have read about it in his notes. Yes.
Tr. 145.
The answer and question are perplexing. What notes did Mr.
Wolkoff refer to? Unequivocally, no document of any kind was ever identified in discovery or during the hearing. Rather, at ording to to the answer to Complainant's Interrogatory 11, no such documents exist. In effect, either the August-19th notes
, tendered by Mr. Finneran and counsel are forgeries or Respondents' counsel asked leading questions based on made up testimony.
Mr. Wolkoff's bizarre examination of Mr. Rencher continues with the following:
O. Stiffness of Class 1 pipe supports, was that an issue that had been (known to (sic)] the NRC, do you know?
A. No, it had not.
Q. Was it an issue, however, that had been discussed amongst management?
A. Yes.
Q. So management was already aware of it before Mr. Hasan raised it.
A. ...Yes.
Tr. 145.
The questions by Mr. Uolkoff and answers by Mr. Rencher are nothing less than shocking. Respondents' own counsel has
(
elicited from its own witness that Mr. Hasan's concern of
~
' stiffness values of Class 1-pipe surforts sent to Westinghouse had not been known to the NRC when Mr. Hrsan raised it to Mr.
Finneran on August 19, 1985. Mr. Rencher's further admission that management knew of the condition prior to the August 19th meeting corroborates Mr. Hasan's te timony that he had continually. blown the whistle to management about this concern
< prior to the August 19th meeting. There is no room for doubt that Mr. Finneran in fact failed to recall certain packages that Mr. Hasan pleaded he recall to allow him to identify'to Mr.
Finneran how the errors in calculating the stiffness of the Class 1 pipe supports occured.
Not only did Mr. Finneran refuse to recall the packages, he knowingly prepared and submitted into evidence memoranda he knew to contain absolute false statements to the effect that Mr. Hasan had no safety concerns. These memoranda (RX 45, RX 31) would also become the centerpiece of Respondents' attempt to deceive the NRC (via answers to interrogatory questions posed by the intervenor CASE) as well as the DOL through the submission of false testimony by Mr. Finneran.
- 3. Deposition testimony of Mr. Chamberlain Mr. Chamberlain's deposition testimony further establishes that Mr. Hasan raised stiffness of class 1 pipe supports to Mr.
Finneran on August 19th.
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O. '[BY MR. KOHNI'Well, 4 August 1 19,. . , . .
stiffness wasiraisediinLMr.1Hasan's last~ '
fa conversation with him; isuthaticorrect?. +
~
-f LA. jI b'elieve=it.'was one'of the items that he discussed with Mr. Finneran in the exit.
. interview.
T t C -[BY MR 'KOHN) Okay, on'. August' ' 1 9 , ' 1 9 8 5', ' y o u .
j discussed'and Mr. Finneran discussed
' ' ' incorrect-stiffness-values on-Class 1 piping (
" stress analysis with Mr. Hasan.
- . , A. ...I' discussed it with'Mr. Finn'eran after he' talked with Mr. Hasan in the exit interview-
['When) he. asked me aboutJsome of the items
.that Hasan had brought up...
Chamberlain' Deposition. Tr. at1236, 244-245,.(emphasis added).
4 B. Respondents." overed-up Mr.-Hasan's' Concern About Incorrect-Stiffness Values Having-Been:Sent to Westinghouse SinceL ,
1982, and Respondents' Counsel Suborned Mr. Finneran's.
Perjurous. Testimony By-Allowing Him to Deny Under Oath that Mr. Hasan Had Ever Raised Incorrect Stiffness
' Values'to Mr. Finneran On August - 19, 1985 p
Mr.;Finneran_(and.others) engaged in an active cover-up of-Mr. Hasan's concern over'the' fact that' incorrect' stiffness values. -
had been'sent to Westinghouse. Tr.17-118, 148-149, 235, 238, 263-264. Respondents have been covering.up this concern of Mr.
Hasan's since 1982, when Mr. Hasan raised the concern with Mr.
Rencher,'and thereafter when he raised the concern to Messrs.
Hemrajani and Chamberlain. Tr. 264-266. To be sure, when SWEC 1-1 began its requalification effort of the Class 1 piping system, they also used the Westinghouse analysis.
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If the' truth was known'about the incorrect stiffness values at the time SWEC began-its requalification, it would have been apparent to all concerned, including the NRC and the ASLB, that the schedule SWEC and Texas Utilities submitted t) its shareholders, the ASLB and the NRC were in fact fraudulent and impossible. Although Respondents' concede in their reply brief that Stone & Webster's " goals were high: to develop within seven i
months a single, uniform set of pipe support criteria...to requalify the pipe support work...and to conclude all remaining pipe support work," Respondents' Brief in Support of the RD&O, at p.12, what they ommit is that their' goals were impossible and that Mr. Hasan knew it. Is it possible to conceive of any greater motive to discriminate against Mr. Hasan than his knowlege over the fact that SWEC's initial requalification
" schedule was fraudulent?
Indeed, respondents di>d everything conceivable to disuade Mr. Hasan from raising his concerns to the NRC while he was employed on site. To stop him from going after he left, Mr.
Finneran falsely asurred Mr. Hasan that all of his concerns, and in particular his concern over incorrect stiffness values, were already factored into SWEC requalification plan. Mr. Finneran repeatedly assured Mr. Hasan that there was no reason to show him where the errors had been made.
Respondents felt secure that their secret would remain undetected once Mr. Hasan was removed from the site, particularly
', after Mr. Hasan was asked to write a memo to NPS about the status RX 46. Indeed, as RX 46 of his concerns at Comanche Peak. ;
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states, Mr. Hasan explained to Respondents that "it must be.
, pointed out that any technical items, discussed below, are NOW MEANINGLESS as [ Texas Utilities) senior representative John Finneran told me on August 19, 1985 " Stone & Webster Engineering g r, Corporation shall do everything from the begining!" RX 46 at p.
1 (emphasis and capitalization in original).
Unfortunately for Respondents, Mr. Hasan chose not to believe Mr. Finneran, and on January 10th and 30th, 1986, after contacting them back in August, 1985 (CX 15), Mr. Hasan was .
finally able'to present tc the NRC his concern over incorrect stiffness values (concern No. 26), as well as the 64 other concerns listed in the NRC 's May 28, 1987 letter to Texas Utilities. CX 14..
The significance of Mr. Hasan's disclosure over incorrect stiffness values sent to Westinghouse cannot be overlooked.
Under 10 CPR 50.55(e) Texas Utilities had a legal duty to notify the NRC of the violation the moment they learned of it. The date the violation was first detected and reported to the NRC is documented pursuant to established NRC regulation. The date that Respondents first notified the NRC of the incorrect stiffnedJ values undeniably occured on May 28, 1986 via letter from Texas Utilities executive vice president, Mr Counsil.
This letter states:12/
4
- 12. This letter was first brought to the ALJ's attention as an t
ex' bit to Complainant's Second Motion for Default J tr 4 ment / Disqualification, filed on June 16, 1987.
t w____-____- - _ _ _ _ _ _ _ _ _ _
On April 29, 1986, we verbally notified your Mr.
T.F. Westerman of a deficiency involving the use l of incorrect pipe support stiffness values in the Unit 1 Class 1 pipe stress analysis. This is an interim report of a potentially reportable item under the provisions of 10CFR50.55(e). . .
Westinghouse is reanalyzing these stress problems and issuing revised pipe support loads to SWEC for review. .
. SWEC has not yet started to assess the existing supports for adequacy due to load increases. . .
On October 17, 1986, Texas Utilities issued its final assessment of Mr. Hasan's concern over the use of incorrect stiffness values sent to Westinghouse. It states:13,/ .
On April 29, 1986, we verbally notified your Mr.
T.F. Westerman of a deficiency involving the use of incorrect pipe support stiffness values in the Unit 1 Class 1 pipe stress analyses. . .We are reporting this issue under the provisions of 10 CFR 50.55(e) and the required information follows.
DESCRIPTION As identified during the CPSES pipe support requalification effort, incorrect stiffness values were used in the Unit 1 Class 1 piping stress analyses.
Review of the ongoing requalification program has indicated that approximately 30% of the existing pipe supports are overstressed or require modification primarily due to load increases... As a result of these conditions, all stress problems are currently scheduled for reanalysi ...
SAFETY IMPLICATIONS In the event the deficiency had remained undetected, the integrity of the Class 1 pi ping and supports could not be assured during normal operating or accident conditions.
- 13. See Footnote 12, supra.
This letter confirms that Mr. Counsil of Texas Utilites allegedly did not know of the incorrect stiffness values until after SWEC's requalification effort commenced. The utilties' highest ranking officer for nuclear matters unequivocally states that the " normal" operation of the nuclear plant was in jeopardy had Mr. Hasan's concern remained " undetected."
Mr. Finneran's failure to disclose Mr. Hasan's concern in his August 19th memoranda and in testimony was not because he did not understand Mr. Hasan's concern or that he did not perceive its significance -- indeed Mr. Finneran has a masters degree in engineering and is the Utility's chief pipe support engineer on site. Mr. Finneran's false testimony resulted simply because the Utility wanted to cover-up Mr. Hasan's safety concerns. Mr.
Finneran sent Mr. Hasan packing, telling him he knew about the concern, that SWEC knew about it and that he should not worry becase" his concern was already moot. He then prepared memoranda stating that Mr. Hasan had not raised a single safety concern and that he gave Mr. Hasan a copy of the memoranda (which he did not). This was a premeditated act on the part of Texas Utilities to cover-up safety concerns at the site. Indeed, Mr. Hasan's ,
concern over the use of incorrect stiffness values was not reported to the NBC until April 29, 1986, three mon *.hs after Mr.
Hasan provided the NRC with explicit testimony on this issue.
See CX 14, Concern No. 26.
Beyond a shrdow of a doubt, on August 19, 1985, Mr. Hasan 1
" begged" and " pleaded" with Mr. Finneran to correct the stiffness
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r l values sent to Westinghouse. In this regard, Mr. Hasan pleaded with Mr. Finneran to retrieve certain pipe support packages so that Mr. Hasan could personally point out to Mr. Finneran during the August 19th meeting how the incorrect stiffness values had At that point in the meeting, Mr. j
.been'sent to Westinghouse.
Finneran knowingly and purposefully misled Mr. Hasan with false statements when he told Mr. Hasan that the incorrect stiffness values had already been identified to SWEC and as such his disclosure was entity << moot. The obvious intent of Mr.
Finneran's statements was to derail Mr. Hasan from further pursuing this concern with the NRC or CASE.
Clearly, the creation of the August 19th memoranda constitute premeditated acts on the part of Texas Utilities management in an ongoing cover-up of Mr. Hasan's concern over the use of false stiffness values during the requalification effort.
Indeed, once Mr , san was banished from the site, Texas Utilities was once again free to use the false stiffness values during SWEC's effort to requalify the Class 1 pipe support design of the Comanche Peak plant.
Respondents' counsel knowingly attempted to suborn perju when Mr. Wolkoff posed the following leading questions to Mr.
Rencher:
O. ...I take it since you dor.'t l'ecollect being there when he raised it [ stiffness of Class 1 pipe supports), you don't know what Mr. Hasan was talking about when he raised the point.
l A. That is correct.
1 Tr.
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o This question _came after Mr. Rencher had' testified that not only did Mr. Hasan~ raise the issue to Mr. Finneran, but that Mr.
Finneran understood it and that they had discussed it even after Mr. Hasan left the meeting. Tr. 117-118.
I' On re-direct, when Complainant's counsel attempted to i
establish that Mr. Rencher's deposition testimony was consistent with his earlier testimony, namely that Mr. Hasan raised the issue of stiffness during the August 19th meet'ing, Mr. Wolkoff knowingly attempted to mislead the court when he stated:
MR, WOLKOFF; Objection, Your Honor. [Mr.
Rencher's testimony on cross} is not inconsistent with his testimony [at his deposition).
JUDGE LINDEMAN: The record will speak for itself regarding consistency.
Tr. 149.
Indeed, the record establishes that the only time Mr.
PencLt. strayed from the truth was when his own counsel, Mr.
Wolkoff, asked bizarre questions of the witness that have no basis in fact.- The record establishes that Mr. Wolkoff attempted to suborn perjur-ed statements from Mr. Rencher when he took the witness stand. Given the pressure Mr. Rencher had to overcome to testify against his superior and to testify truthfully when his employer's attorneys attempted to get Mr. Rencher to change his story before he entered the witness box, it is nothing less than astounding.
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. Mr.
Respondents assert that the ALJ " commented on . .
Hasan's total lack of credibility during his day-long testimony.
6." See, Brief of Respondents Recommended Decision and Order at at 29. While the ALJ did make limited credibility findings in the RD&O none appeared on page 6, and the ALJ never used the term
" total lack of credibility" to describe Mr. Hasan's' testimony.
Respondents' mischaracterization of the RD&O is more than zealous d
advocacy -- it is downright malicious. Complainant regards Respondents' misrepresentation as sanctionable conduct under FRCP Rule 11.
4 The substance of Respondents' request for attorneys fees and costs is itself frivolous as Respondents' counsel could include not even a single legal authority to support his request.
t Complainant will not waste the Secretary of Labor's time N addressing what amounts to Respondents' desire'to be compensated for responding to Complainant's discovery requests.
1' CONCLUSION It is disturbing that Respondents' counsel would engage in in order subornation of perjury and other sanctionable behavior to prevail before Administrative Law Judge Lindeman. The fact l
l that some of the highest ranking officials at the Comanche Peak facility felt it necessary to perjure themselves rather than admit to the concerns Mr. Hasan had brought to their attention t
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demonstatates fear on the part of Respondents, let alone mere knowlege, that Mr. HasanLhad raised safety concerns of immense proportion. Indeed, Mr. Hasan's disclosures stood in the way of certifying the pipe support system of the Comanche Peak facility.
Mr. Hasan was blacklisted from the site in order to assure the implementation of a patently false and impossible requalification schedule of the Comanche Peak pipe support system. Mr. Hasan was more than an internal ehistleblower, he was a engineer whose career was seriously damaged simply Iecause he refused to sign-off on improper design documents.
forth above, the Secretary of i forall(3E((oj/reasonsset Labor must rule in favor of Mr. Hasan.
t Respectfully Submitted, 9
^
( VL/ __
MICHAEL D. KOHN, ESO.
STEPHEN M. KOHN, ESO.
Government Accountability Project 25 E Street, N.W. -- Suite 700 Washington, D.C. 20001 (202) 347-0460 Attorneys for Complainant On Brief:
' David K. Colapinto April 18, 1988
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't CERTIFICATE OF SERVICE I-hereby certify that a copy of the aforegoing reply brief was hand-delivered on April 18, 1988 to:
Secretary of Labor Office of Administrative Appeals U.S. Department of Labor 200 Constitution Ave., N.W.
Washington, D.C. 20210 and I certify that a copy was sent on April 18, 1988 by first class mail, postage prepaid, to:
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Mr. Harvey J. Wolkoff, Esq.
Ms. Katrina Weinig, Esq.
p Popes and Gray 225 Franklin Street i
i Boston, MA 02110 t
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21.4 / 91,6 - 9 .
tI j (CITIZENS ASSN.FOR SOUND ENERGY) '87 11 10 P 2 -Q e
July 6,' 1987 .
l 64 5
Administrative Judge Peter B. Bloch Dr. Kenneth A. McCollom J. 1107 West Knapp Street
? U. S. Nuclear Regulatory Commission Stillwater, Oklahoma 74075 Atomic Safety & Licensing Board Washington, D. C._ 20555 Dr. Valter H. Jordan
$ 881 W. Outer Drive Oak Ridge, Tennessee 37830 .
Dear Administrative Judges:
Subject:
In the Matter of Texas Utilities Electric Company, et._ gl.
Application for an Operating License Docket Nos. 50-445 and 50-446 -04 and Construction Permit Amendment Docket No. 50-445-CPA Comanche Peak Steam Elcetric Statien Units 1 and 2 Notification of Potentially Significant Info rmation information in both This is to inform the Board of potentially significant dings.
the opcrating license proceedings and the construction permit procee several points in CASE's 7/6/87 As we have stated to Applicants atto Applicants' Interrogatories to " Consolidated Supplementary Response 1987-1) and Motion f or a Protective Order, we expect Interveners" (Set No. l d to rely upon information f rom the f ollowing (and any other re ate ' 5/28/87 information, prchably including Applicants' reviewed"esponse it) to supportto Mr. Grimesour cases in both letter, although we have not yat i proceedings:
the operating license ;roceedings and the construction perm t ;
I
"!/2B/87 letter f ruo Christopher I. Grimes, Director, NRC Comanche Peuk Project Division, Office of Special Projects, to Applicants' William G. Counsil, under Subject of:
Executive Vice President, The concerns Allegations of Design and Construction Deficiencies.
listed in the Enclo'sure to that 5/28/87 letter were identified as being those of S. M. A. Hasan, a former engineer at Comanche Peak (see listing following regarding 6/22/87 and 6/23/87 Hasan DOL hearings and related proceedings)."
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le sh'ould be noted that the concerns vere identified as
~ being thoseLof Mr. Hasan in the' DOL' proceedings (not in the 5/.28/87 letter from Mr. Grimes).
"6/22/87 and 6/23/87 Haean DOL hearings and related proceedings.
CASE also expects. that ve will rely upon some information f rom the
~
DOL proceedings of S. M. A. in Hasan (hearings. regarding thewhich were held June.22 and 23, 1987, Eallas, Texas, before Honorable.
' Alfred Lindeman, Administrative Law Judge, U. S.-Department of-Labor, in the matter of Ccca No. 86-ERA-24, S. M. A. Hasan,
- Complainant, v. Nuclear' Power Services, Inc., Stone and Webster
' ' Engineering Co., Inc., and Texas Utilities Electric,Co., Inc.,
Respondents)."We do not yet know exactly what information will be relied upon. CASE does, however, consider some of the' testimony in those.
proceedings.cf such potential significance to both the operating license proceedings and the construction permit. proceedings that Applicants should voluntarily provide copies of all pleadings,.
documents, etc., in that case to the Licensing and CPA Boards.
- Applicants' f ailure to do so (and, indeed, the_ve ry_f act_of _
'Applicapts', failure _to have a_l ready advised the Board regarding some of-the matters, involved) is considered by;CASEf to' b'e" further
~
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' proof of_ CASE's_contentionslinithe 0.L. and.the CPA proceedings."
As we have stated co Applicants, CASE believes that Applicants should have aircady informed the Board regarding some of the information from the DOL proceedings. Perhaps that, most immediately notabic is Applicants' slowness although Applicants obviously knew that Stone &
regarding the fact
" Webster had indeed turned right around and rehired many of the same engineering personnel who had formerly worked for ITT Crinnell, NPS1, Gibbs
& Hill, and TU, it was not until 6/8/87 (coincidentally (?) shortly before their-Mr. Hasan's DOL hearing) that Applicants finally chose to supplement
- responses to CASE's 6/30/86 interrogatories (see_ Applicants' 6/8/87 Supplemental Responses to CASE's 6/30/86 Interrogatories and Request for Documents, supplementary response to interrogatory number 32, attaching information requested regarding names, etc., of former employees of Gibbs &
Hill, ITT Crinnell, NPS1, and TexasThis Utilitiesis even whomore were egregious rehired byin Stone light &of Vebster Engineering Corporation). f the discussion during the,8/18/86 Prehearing Conference.(see transcript o 8/18/86 Prehearing Conference, Tr. pages 24493 through 24502 ge
~ ~
especially Ms. Billie Carde's' comments atan opportunity which the regarding this important catter.
CASE President Juanita Ellis attended the twoas days partofof Mr. Hasan's her researchDOLin hearings in Dallas on June 27. and 23, 1987, filing her 7/6/87 Supplementary Response Based on what in transpired the CFA and in the during operating those license proceedings as well. some proceedings and related fili.ngs and documents, etc., CASE believes that of the matters raised are of extreme.importance_to both the operatingCAS'E_also_ b
~ ^
license proceedings and construction'n psrmit p'roceedings.
that Applicants should now voluntarily provide copies of_.all pleadings, 2
1
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e documents, etc., in that case to the Licensing and CPA Boards (which are, of-course, composed of the saoe three members). If Applicants do not voluntarily do so, CASE will seek such action through more formal means; it chould not be CASE's burden to have to continue to go to the expense in time, money, and person resources to keep the Board informed and supply documents regarding matters such as this which are so obvicusly covered by the BoardLs_of t-repeated and numerous Orders that Applicants are
-~~~~ - - to keep the Board informed of potentially significant information.
There is also, of course, another even more disturbing aspect o'f this entire The Board was advised by Ms. Carde at the 8/18/86 Prehearing matter.
Conference -- over ten months ago -- that she had reason to believe chat Stone & Vebster had rehired many of the same engineering personnel who had formerly worked at Comanche Peak. Applicants' attorneys and personnel who
' were in the audience (who included some of Applicants' new management personnel) sat right there and that said nothing -- even though many of themtim obviously had to have known atHow can CASE (or the Board or anybody else, for that m was true.
be expected to trust and rely upon those individuals -- for anything?
Respectfully submitted, CASE (Citizens Association for Sound Energy)
'rs.) Juanita Ellis resident cc: Service List 3
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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: :
TEXAS UTLITIES ELECTIRC : Docket Nos. 50-445-OL COMPANY, ET AL., 50-446-OL
! : 50-445-CPA Comanche Peak Steam Electric :
Station, Units 1 and 2 CERTIFICATE OF SERVICE I hereby certify that copies of the foregong Motion to Reopen the Record have been served this 13th day of July, 1989, upon the following persons, by first class mail, except as otherwise noted:
Docketing and Service Section (original and two copies)
Office of the Secretary U.S. Nuclear regulatory Commission Washington, D.C. 20555 Alan Rothenthal, Chairman Atomic Satety and Licensing Appeal Board Nuclear Regulatory Commission Washington, D.C. 20555 l Judge Thomas Moore l Atomic Satety and Licensing 1 Appeal Board l Nuclear Regulatory Commission Washington, D.C. 20555 Judge Howard Wilber Atomic Satety and Licensing Appeal Board Nuclear Regulatory Commission Washington, D.C. 20555 Judge Peter Bloch, Chariman Atomic Satety and Licensing Appeal Board Nuclear Regulatory Commission Washington, D.C. 20555 i
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Janice Moore, Esq.
, Colleen'Woodhead, Esq.
Atomic.Satety and Licensing Elizabeth Johnson
- Oak Ridge National Laboratory 4
P.O. Box X, Building 3500 Oak Ridge, TN 37830 Jack Newman, Esq.
Newman & Holtzinger, P.C.
1615 L Street, NW, Suite 1000 Washington, D.C. 20036
- William Counsel TUEC 400 North Olive St., L.B. 81 l . Dallas, 7X 75201 Y Juanita Ellis CASE 1426 South Polk St.
L Dallas, TX .75224
- Billie Garde, Esg.
104 East Wisconsin Ave.
Apleton, WI 54915 I
- Susan Theisen, Esq.
! Office of the Attorney General P.O. Box 12548 Austin, TX- 78711 By:
Mary L. Lyons, Esq.
- indicates service by first class mail on 7/14/89 without attachments l
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UNITED STATES OF AMERICA I d #f" H -
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
'89 at 17 P4 :37 Ofi l-In the Matter of: : ggg # , , ,,
TEXAS UTLITIES ELECTIRC : Docket Hos. 50-445-0 COMPANY, ET AL., 50-446-OL
- 50-445-CPA Comanche Peak Steam Electric :
Station, Units 1.and 2 .
CERTIFICATE OF SERVICE I hereby certify that copies of the foregong Motion to Reopen the Record have been served this 13th day of July, 1989, upon the following persons, by first class mail, except as otherwise noted:
Docketing and Service Section (original and two copies)
Office of the Secretary U.S. Nuclear regulatory Commission Washington, D.C. 20555 I further certify that copics of the foregong Motion to "d Reopen the Record will be served on the 14th day of July, 1989, upon the following persons, by first class mail
(* indicates service made without attachments):
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- Alan Rothenthal, Chairman
! Atomic Satety and Licensing Appeal Board l Nuclear Regulatory Commission Washington, D.C. 20555
- Judge Thomas Moore Atomic Satety and Licensing Appeal Board Nuclear Regulatory Commission Washington, D.C. 20555
- Judge Howard Wilber Atomic Satety and Licensing Appeal Board Nuclear Regulatory Commission 20555 Washington, D.C.
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- l EJ udge Peter Bloch, Chariman Atomic Satety and Licensing Appeal Board Nuclear Regulatory Commission Washington, D.C. 20555 Judge Walter Jordan ASLB
.881 West Outer Drive Oak ridge, TN 37830
- Janice Moore, Esq.
Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Judge Kenneth McCollon
- 1107 West Knapp i Stillwater, OK 74075 l ; Elizabeth Johnson Oak Ridge National Laboratory P.O. Box X, Building 3500 Oak Ridge, TN 37830 Jack Newman, Esq.
Newman & Holtzinger, P.C.
1615 L Street, NW, Suite 1000 Washington, D.C. 20036 Juanita Ellis CASE 1426 South Polk St.
Dallas, TX 75224
- Suran Theisen, ~s q .
O- i.ce of the A tor ey General
'O . Dox 12 48 a Aus in, TX 7 l By: I i i ~' A l Maryq ,
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