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Suppl to Petition to Intervene & Request for Hearing of Bi Orr,Di Orr,Jj Macktal & SM Hasan.* Board Should Admit Petitioner Contention 1 for Listed Reasons.W/Certificate of Svc
	ML20106D313
Person / Time
Site:	Comanche Peak
Issue date:	10/05/1992
From:	Kohn M, Kohn S; AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	; Atomic Safety and Licensing Board Panel
References
	CON-#492-13263 92-668-01-CPA, 92-668-1-CPA, CPA, NUDOCS 9210090105
	Download: ML20106D313 (161)
	v • d • e

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. Lelil l 13Heic UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD *Q2 OCT -7 P2 :45 y p y >: ^.

..?....'

In the Matter of ) # " h ird .!

) Docket No. 50-446-CPA TEXAS UTILITIES ELECTRIC COMPANY, ) ASLDP NO. 92-668-01-CPA

) (Construction Permit (Comanche Peak Steam Electric ) Amendment)

Station, Unit 2) )

.)

GUPPLEMENT TO PETITION TO INTERVENE AND REQUEST FOR HEARING OF D. IRENE ORR, D.I. ORR, JOSEPH J. MACKTAL, JR., AND B.M.A. HADAN Pursuant to the September 11, 1992 Memorandum and Oroot of the Atomic Safety and Licensing Board, B. Irene Orr, D.I. Orr, Joseph J. Macktal and S.M.A. Hasan (hereinafter " Petitioners")

file contentions with respect to Texas Utilities Electric Company's ("TUEC") request for an extension of its construction permit for Unit 2 of the Comanche Peak Steam Electric Station

("CPSES").

I. CONTENTIqH Petitioners submit the following contention:

Contention 1 The delay of construction of Unit 2 was caused by Applicant's intentional conduct, which had no valid purpose and was the result of corporate policies which have not been discarded or repudiated by Applicant.

II. PASIS OF CONIENTION 1 The basis of the contention is two fold. First, Petitioners contend that a significant safety hazard exists where an applicant for a construction permit has employed and continues 9210090105 921005 hfC 3 PDR ADOCK 05000446 G PDR;

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to employ corporate policies aimed at constructing a nuclear power plant in violation of NRC requirements and, as a result of those corporate policies, significant and substantial construction delays occurred and continue to occur.- The Second l basis of the contention is that the applicant has not repudiated i or disregarded the corporate policies responsibic for this delay.

As a result, TUEC is unable to demonstrate " good cause" for the delay and the amendment must be denied.

i III. FJLQ_ TRAL SUPPORT or_ QRRIMETJ_OJ_1 A. Facts Contained in CPSES operating License and Construction Permit Amendment ASLB docket on October 30, 1986, the NRC's ASLB admitted a contention concerning the expiration of the Construction Permit for Unit 1 I

of the CPSES, and a separate docket number was assigned to this proceeding, Docket No. 50-445-CPA (heroinafter referred to as "CPA-1"). The admitted contention is substantially identical to

" Contention 1" raised herein by Petitioners (indeed, the only difference is that the instant contention makes reference to the

" Applicant" whereas the CPA-1 contention refers to " applicants"). ,

Reg In the Matter of Texas Utilities Electric Co.. et al., 24 NRC 575, 580 (October 30, 1986). As characterized by the Commission, this contention essentially alleged that TUCC had failed to demonstrate good cause for the extension of its construction permit because they "had a corporate; policy to construct the plant in violation of NRC requirements, and that subsequent discovery and efforts to correct these violations caused the delay." CLI-86-15,_24 NRC.397, 399 (1986).

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l An extensive record was created during the cource of the i.

CPA-1 proceeding.

Petitioners incorporate by reference this record, and allege that, taken as a whole, the CPA-1 rocord demonstrates that prior to the settlement of-the CPA-1 proceeding '

by the parties, TUEC had not repudiated or discarded its l corporate poli.'y which resulted in delays in construction of the ;

CPSES.i Speci .cally, Petitioners call the Board's attention to 1

the June G and 8, 1987 pleading of the CPA-1 intervenor, " CASE," ,

entitled: 1) " CASE's Response to Applicants' Interrogatories to

' Consolidated Intervenors' and Motion for a Protective Order;" 2)

" CASE's Supplementary Response to Applicants' Interrogatories to

' Consolidated Intervenors ' and Metion for a Protective Order."- ,

Therein, the intervenor set-out extensive facts supporting the assertion that 1) the delay in construction of the CPSES was caused by TUEC's intentional conduct, and 2) that TUEC had not ,

discarded or repudiated the corporate policieF which resulted in the delay. . Petitioners incorporate herein the factual basis and documentary evidence set forth in these CASE pleadings'(together, l

these two documents are 193 pages in longth, and state sufficient facts to determine that'TUEC had engaged in a course of conduct waich resulted in the delay of construction and that TUEC had, as

' Indeed, the ASLB stated in a November 18, 1987 Memorandum and Order (Litigation Schedule) at_p.-1, that the ASLB would " assume,.unless shown otherwise in the course of the hearing,1that there has been er historical QA design and - QA-construction breakdown." . Clearly, sufficient-evidence existed to >

> 69monstrate that TUEC had violated NRC QA and QC requirements'

sich=resulted in extensive delay in the construction of the CPSES. ,

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I of that tinio, not repudiated the corporate policy which resulted in the delay). ,

Taken as a whole, the CPA-1 record provides sufficient facts to domenstrate that a factual dispute exists as to whether TUEC had enacted a corporate policy that had no valid purpose and ,

which resulted in dvlay in construction of CPSES Unit 2, and further demonstrates that a factual dispute existed as to whether ,

TUEC's corporate policy which resulted in the delay of construction had been discarded or repudiated.2 D. Facts ((ot Contained in CPSES CPA-1 docket Substantial evidence aemonstrates thac a factual dispute 9

exists as to whether TUEC has repudiated its corporate policos which gave rise to ti,e delay in the construnt . n of Unit 2.

1. Empjerittiye 8e111.ginent Agrpm s m.

Perhape the most significant evidence that TUEC-has not repudiated its past corporate policies concerns TUEC's attempt to systematically keep relevant information f rom the ASLB and flRC through the use of restrictive settlement agreements. Sufficient .

2 From the outset, Petitioners wish to make clear that the delay of construction of CPSES Unit 1 directly resulted in the delays of construction of Unit 2. As TUEC admits in its fiscal 3988 10-K filing with the Securities and Exchange Commission, " delay of Unit 2 was implemented to allow the Company to concentrate its resources on the completion of Unit 1." TUrc Fiscal 1988 10-K SEC Report at p.11. Consequently, evidence-admitted in CPA-1 is directly relevant to this proceeding. _ ggt attached Exhibit 17 ("the Commission has unequivocally concluded that the granting of any extension of the construction completion date for the Comanche Peak Unit i raises substantial safety issues that a licensing hearing should be held," and in regards to CPSES-Unit 2, "all tha came arguments" set forth with respect to the CPA-1 hearing also relate to Unit 2).

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l JVidence exists to create a disputed fact as to whether TUEC l

and/or its counsel entered into a number of restrictive i i settlement agreements with the intent of keeping information secreted from the NRC and the ASLb.

a. Rostrictive Agreement between TUEC and its former CPSEB minority owners The CPA-1 proceeding contains a pleading filed by one of TUEC's former co-owners of the CPSES, Brazos Electric Power Cooperative, Inc. Thin pleading, in and of itself, demonstrates that a factual dispute exists as to whether TUEC was t l

intentionally withholding information con"erning misconduct (and the resulting delay in construction of the CPSES) from the ASLB and from TUEC's co-owners. Specifically, on August 14, 1987, Brazoa Electric alleged in answers to interrogatory responses filed during the course of the CPA-1 proceeding that TUEC had made misrepresentations and failed to disclose information to the ASLB and to the co-owners, and specifically identified 17 apac4fic areas of misrepresention. Egg " Objections and Responses of Brazos Electric Power Cooperative, Inc. to Consolidated Intervenors' Interrogatories and Request for Production of Documents," (dated August 14, 1987), attached hereto as Exhibit 1. Brazos further alleged therein that evidence suggests-that TUEC continued to adhere to a policy of misrepresentation and non-disclosure before the ASLB which would necessarily result in further delay. E22 Exhibit 1.at pp. 3-4,

10. Brazos Electric noted in this filing that discovery in a Texas state court proceeding was on-going and Brazos expected to 5

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obtain additional evidence respecting the issues related.to the CPA-1 proceeding (i.e., whether TUEC had a corporate policy that had no va id reason which resulted in the delay of construction and that TUEC had not repudiated that corporate r (cy- Id., at: -

p. 8. ,

TUEC ultimately entered irto no less than three separate settlement agreements with its minority owne' which operate to preclude the CPSES minority owners from coo, .ng with Petitioners or from providing the-A6LB with cvidence concerning the CPA-1 issues (which are the same issues before this Boar') .

Een e . g . , Exhibit 4.

The first agreement TUEC entered into with a CPSES co-owner occurred in February of 1988 -- before the CPSES CPA-1 and Operating License ("OL") proceedings were terminated. At that time TUEC cntered into an agreement with the Texas Municipal

( Power Agency ("TMPA"). TUEC acknowledged in its fiscal 1988 10-K filing with the SEC that the-TMPA-TUEC settlement required TMPA to drop its Texas state litigation and.to sell its share of the CPSES to TCB t o- approximately $456.9 million.- Reg TUEC's-flucal year-19o8 10-h SEC f-iling at p. 40.

The second settlement reacned between TUEC and its minority _

co-owners, Breaos-ulect.ic Power Coogwrative, Inc.. ("BEPC"),

occurred some time in July of 1988. Once again, the 1988 10-K report demonstrates that TUEC required that BEPC terminate its.

Texas utato court _ proceedi ' and transfer its ownership interest 6

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I to TUEC in exchange for receiving approximately $297.7 million.

Id., at p. 40.

The third and final settlement was reached between TUEC and the remaining CPSES minority owner, Tex-La-Electric Cooperative of Texas - (" Tex-La") occurred in March of 1989. TUEC reported that the terms of this settlement were 62.sentially similar to the settlement entered into with DEPC and TMPA, Specifi. cal

r, TUEC asserted i' a 8-K filing with the SEC that it had agreed to pay Tex-La_$163 million and that Tex-La would dismiss the pending Texas state law suit.3 See TUEC March 23, 1989 SEC 8-K Report, at p. 2.

Petitioners are unable to obtain a copy of the BEMC and TMPA agreements.' Nonetheless, sufficient evidence exists to indicate that the BEMC and TMPA agreements contain restrictive

'.angura s prohibiting BEMC and TMPA from providing the ASLB with tvidence and documentation unearthed during the course of the Texas state law suit. Specifically, Petitioners rely upon the fact that in the one agreement they were able to ol+.ain, the Tex-La agreement, TUEC incorporated specific language prohibiting Tex-La from releasing any of the evidence it gathered during-the 3 In addition to the moneys paid to Tex-La, it should be ~

noted that since May of 1986, Tex-La, unlike the other co-owners, had withheld some 45c.1 million in co-owner payments to TUEC, alleging that TUEC had improperly constructed the CPSES in violation of the Joint Ownership Agreement.

l Indeed, it appears that the NRC was never provided copies of these agreements as well and, as such, NRC Staff has just instructed TUEC to submit copies of these. agreements for its review. See September 15, 1992 letter from NRC to TUEC, attached

, as Exhibit.2.

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course of the Texas state court proceeding, and further prohibited Tex-La from cooperating with Petitioners. The Tex-La agreement specifically prohibits all Tex-La employees, attorneys and consultants from " assisting or cooperating" with any third party in all " proceedings" related to "the licensing of Comanche Peak.' Egg May 20, 1992 letter from Tex-La's counsel to Mr. R.

Micky Dow, a copy of which.is attached hereto as Exhibit 3.

Attached as Exhibit 4 are portions of the Tex-La settlement which creates a factual dispute as to whether 1) TUEO intended to secret information from the NRC and Petitioners; and 2) whether TUEC repudiated its corporate polices which resulted in the delay of construction of Unit 2.

b. Restrictive Agreement between TUEC and individual CPSES whistleblowers Before TUEC entered into any of the minorit, owner restrictive settlement agreements, TUEC's counsel had already established the practice of concealing evidence directly baring on the issues to be litigated in the CPA-1 proceedings,

i. The Macktal Acreeme.nl the first known restrictive agreement was entered-into back in January of 1987 between counsel representing TUEC before the CPA-1 proceedings and Mr. Joseph Macktal.5 Excerpts of this 5

A major allegation of corporate misconduct concerns the

-issue of whether the_ president of-Brown & Root, Inc., personally-offered Mr. Macktal an illegal payment of " hush money." This potentially criminal allegation was investigated _by NRC-OI.

Unfortunately, OI could not verify this allegation due to the fact that TUEC/ Brown & Root refused to produce significant evidence in its possession. See Exhibits 14 & 15. Specifically, (continued...)

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restrictive-settlement agreement are attached hereto as Exhibit 5.

Tho existence of this agreement constitutes sufficient evidence in and of itself to demonstrate that TUEC had not repudiated its corporate policy which resulted in the delay in construction.

ii. The Polizzi Acreelqegt Also prior to the termination of the CPA-1 proceedings, in June of 1988, TUEC entered into another " hush money" settlement agreement with another former CPSES employee, Mr. Lorenzo Polizzi. Excerpts of this restrictive settlement agreement are attached hereto as Exhibit 6.

She existence of this agreement constitutes sufficient evidence in and of itself to demonstrate that TUEC had not repudiated its corporate policy which resulted in the delay in construction.

2. TUEC8s Pattern of continuina-Licensinc Violations A review of the CPA-1 and OL proceedings demonstrates that TUEC's corporate policy which resulted in-the delay of 5(... continued)

Mr. Macktal had alleged that at a meeting between himself_and the president of Brown & Root and a " secretary" (who was also an attorney working for Brown & Root) certain misconduct had occurred. Brown & Root is in possession of contemporaneour noten taken by the attorney / secretary and of memoranda which were filed with TUEC's attccneys-directly related to the alleged Austin misconduct. Town & Root refused to turn over this .-'

docume 1 catior., alleging attorney client privilege. See Exh at:

14 and 15 attached hereto. Petitioners-assert that the prj C.4 -

did not attach to these documents and that the issue of whe h6 the president of TUEC's prime et ntractor will need to be fully adjudicated in this proceeding.

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construction of the CPSES was nanifested by a breakdown in the QA and QC programs employed at the CPSES. The fact remains that TUEC continues to receive numerous Notices of Violation and civil fine:3 demonstrating that TUEC continues to employ the same corporate policies which originally resulted in-the delay of construction. Many of these Notices of Violation (hereinafter "NOV") relate directly to issue of whether TUEC still er-ploys improper corporate policies. Attached as Exhibit 7 is a computer-run compilation of the NOVs and fines TUEC received after the disillusionment of the CPA-1 ASLB. These. Notices of Violation constitute compelling evidence that this Court should grant Petitioners Contention. Petitioners specifically call the boards attention to the violations related to QA and QC breakdowns. Egg, e.g. NOV ACN 9005220162 (May 17, 1990) (" Failure to provide QC inspectors with adequate authority and organizational freedom to identify quality probl6ms and initiate solutions. ") ; NOV ACN 9008100025 (August 3, ? 990) (" deficiency not promptly - identified. ") ; NOV ACN 9103040254.(Feb. 21, 1991) ("f ailure to promptly identify and correct deficiencies") ;-

NOV ACN 9104030058 (March 27, 1991) (" irregularities in records") ;

NOV ACN 9104050016 (April'1, 1991) (" failure to address cause and corrective actions for programmatic deficiency"); NOV ACN 9204080048 (March 31, 1992) (" failure ^o implement adequata design control measures"). Taken as a whole,-this pattern of NOVs demonstrates that TUEC has not .?pudiated its past corporate-policy which resulted in the delay of construction of the CPSES.

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3. TUEC Actively Mislead the ASLB about critical facts in an effort to conceal its corporate policy which resulted in delays of construction and which further demonstrated that TUEC had not repudiated that corporate policy.

Petitioners allege that TUEC intentionally violated an on-going duty it owed to the ASLB to keep the ASLB informed of new developments and information impacting on the CPA-1 proceeding.

Specifically Petitioners allege that, in addition to entering into restrictive settlement agreements, TUEC actively sought to secret relevant information from the ASLB, including:

1) The failure to correct misleading and perjurious testimony during the course of the CPSES ASLB proceedings;

11) Intentionally withholding information from its former co-owners concerning the corporate policy which resulted in the delay in the construction of the CPSES:

iii) continuing to employ the very individuals responsible for and who assisted in covering-up improper design practices.

Petitioners set out three specific instances where TUEC misled the ASLB about the root cause of design defects incorporated into the design of the CPSES and further establishes that this deception resulted in delay of construction as TUEC was eventually required to re-design 100% of the CPSES pipe support system.

a. TUEC Attempted to mislead the ASLB on July-13, 1988 about the existence of " hush money" settlement agreements it had previously entered into.

As a threshold matter, TUEC was under an obligation to alert the ASLB of any new information relevant to the CPA-1 or OL 11

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l proceedings. See Exhibits 8 and'9. Additionally,;TUEC was very aware that issues related to harassment and intimidation were In flagrant disregard I highly relevant to the CPA-1 proceeding.

to TUEC's obligation to ac fully candid with the ASLB, TUEC arranged to have whistleblowers paid money in exchange-for ;

agreeing not to bring safety concerns to the ASLB. This serious character flaw, evidencing that TUEC has never repudiated its corporate policy which resulted in the delay of construction, was again. covered up in the July 13, 1988-ASLB hearing.

Specifically, in response to rumors which were circulating concerning " hush money" payments, CASE's attorneys of record informed the ASLB that there had been D9. restrictive settlements entered into in the past. See Exhibit 10, ASLB Hearing Tr. p

-25283. This statement was knowingly falso inasmuch as CASE's attorneys!were signatories to no less than one " hush: money" agreement. See Exhibit 5.

TUEC's counsel also participated in the cover-up of the-restricted ~ settlemem i. Like CASE's counsel, TUEC's counsel' likewise assured the ASLB that there_were no restrictive settlements. Exhibit-10 at p. 25268. Incredibly, less than three weeks before the July 13, 1988 ASLB proceeding, TUEC's counsel executed the Polizzi " hush money" agreement,-and furthermore, had conditioned the-payment of $5.5 million in 12

i whistleblower settlements to the disillusionment of the OL and CPA-1 proceedings,' 'j

-l TUEC's execution of restrictive settlements is dispositivo j proof of five separate facts which give good cause for this Board to admit Petitioners Contention 1. First, the payment of money l in exchange for silence unto itself was wrong. Second the payment of money in light of the parties' duty of candor to the ASLB, and the fact that harassment and intimidation was a significant contested issue, boarded on overt fraud upon the ASLB. Third, the failure of TUEC on July 13, 1988 to voluntarily admit to and repudiate TUEC's past practice of paying restrictive settlements demonstrates that the practice would continue unabated. Fourth, TUEC's aggressive defense of restrictive settlements in the face of overwhelming public policies prohibiting such settlements demonstrates a management attitude repugnant to public safety and contemptuous of the adjudicatory authority of the ASLB. Finally, as explicated in this pleading, TUEC's incorporation of rectrictive terms in their settlements with the minority owners has tainted even this proceedings by-denying petitioners access to vital and highly relevant evidence.

6 The fact-that TUEC never repudiated their harassment of whistleblowers is highlighted by their conditioning all whistleblower settlements on the disillusionment of the licensing.

proceedings. Had'TUEC truly repudiated their past; harassment, their settlement.with these whistleblowers would have in.no way i been tied to the disillusionment of the CPA-1 and OL proceedings.

Instead of unconditionally repudiating past misconduct,=TUEC held the carrot of lucrative settlements in exchange for the dismissal-of the licensing proceedings in front of indigent and economically distressed wrongfully terminated whistleblowers, d

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b. TUEC Concealed the fact that Incorrect Stiffness values had been used to certify the CPBES pipe support system.

On January 14, 1987, Brazos Electric filed a pleading in the OL and CPA-1 proceeding which states in part:

...On October 16, 1986, iUEC revealed that it had identified construction deficiencies in completed pipe support installations that, had they remained undetected, could have compromised the integrity of CPSES piping systems under ngIncL1 operatina coJ1litiong, and that an ' extensive reinspection program' would bo

' required' to determine the safety implications of the findings. This announcement reversed years of affirmations by TUEC that CPSES had been properly constructed. The next day, TUEC announced that use of incorrect values in Unit 1 Class 1 piping stress analyses had resulted in a need to modify 30 t of existing pipe supports in Unit 1 in order to assure the integrity of the Class 1 piping system RDder normal 9.peratinq cor'd i t i orin .

In thp Matter of Comanche Peah, Views of Brazou Electric Power Cooperative, Inc., respecting Significant Changes Related to Antitrust Matters at pp 7-8 (January 17, 1987)(emphasis in original, attachments omitted).

What Brazcs Electric did not know was that Mr. S.M.A. Hasan, an engineer stationed at the CPSES, had already identified this problem to TUEC management beginning in 1983, and that August of 1985 literally begged high-level TUEC officials at the CPSES, specifically Mr John Finneran,7 to correct the stiffness values 7

The significance of Mr. Hasan's personal disclosure to Mr. Finneran cannot be understated. He routinely presented testimony before the ASLB and, at the time was employed by TUEC

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as its Project Pipe Support Engineer. In this-position he oversaw the design of all piping support work at the CPSES. Upon information and belief, he is currently employed at the CPSES as TUEC's Manager of Civil Engineering. The significance of Mr.

Hasan's allegation is that TUEC's management responsible for the (continued...)

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t that had been transmitted to Westinghouse for' analysis. ERS ,

Hasan v. TUEC. et al., 86-ERA-24,- Hearing Transcript at pp.: 286, 389.484.- Moreover, the record in the Hasan proceeding further demonstrates that Mr. Hasan also requestod Mr. Finnoran to ,

retrieve specific pipe support packages so Mr. Hasan could-o personally point out to Finneran how the incorrect stiffness values had boon sont to Westinghouso, but that Finneran ignored ,

his pleos and never reported these significant allegations to the NRC.

But, most troubling, is that TUEC failed to alert the ASLD to the fact that Mr. Hasan's assertion that he had, in fact, advised Mr. Finneran about the incorrect stiffness values on during a meeting hold on August 19, 1985 was fully substantlDtod by a CPSES manager, Mr. David Rencher. Specifically Mr. Rencher-testified under oath during the courso of the 11aEan proceeding as follows:

Q: In that (August 19, 1985] meeting in your presenco,--did Mr. Hasan ralac concern over the stiffness of Class-1 pipe supports?

A: Yes, he did.

Q: In the presence of Mr. Finneran?

A: Yes.

7(... continued) pipe support design would-cover-up defects in the Class 1 piping L

system that compromised the integrity of the safety-related pipe o supports during normal operating conditions, significantly establishes that TUEC has not repudiated its management policios l

and continues to retain managers in-high-level positions who were ,

b -- and-presumably are -- willing to risk the public's safety through the concealment of significant safety deticiencies.

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Q: Did the two of them hold a discussion about that?

A: It was discussed in that meeting, yes.

Q: And Mr. Finneran was a participant in that discussion.

A: Yes, sir.

Q: 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.

Q: And did he express that concern to Mr. Finneran?

A: Yes, he did.

Q: And Mr. Finneran understood the concern?

A: Yes, he did.

[Insan v. TUEC. et al., 86-ERA-24, Hearing Transcript at pp, 117-118.

TUEC's counsel was specifically made aware of Mr. Hasan's allegation that Mr. Finneran intentionally concealed errors in calculating the Class 1 stress values. Yet, TUEC chose not to comply with its " obligation to apprise the Board of developments -

of matters before it," see, e.g., January 30, 1985 letter from TUEC's Counsel to the ASLB (Exhibit 8), and in violation of "the Board's request that Board members be kept timely informed of matter relating to the licensing," see, March 21, 1985 letter from TUEC's counsel to the ASLB (Exhibit 7), withheld Mr. Hasan's allegation from the ASLB.

Neither the Board nor the minority owners were made aware of the fact that a whistleblower at CPSES disclosed th^ problems with the stiffness values internally to T:EC management and that 16

TUEC management had failed to investigate those allegations.

Instead the whistleblower who made the allegation was blacklisted from the CPSES site because of " personality problems."

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c. TUEC actively attempted to mislead the ASLB about the method used to certify the design of the CPSEB pipe support system In the late 1970's the NRC convened an Atomic Safety and Licensing Board.(ASLB") to adjudicate licensing issues related 'o c TUEC's request to construct and operate the CPSES. Parties to the ASLB licensing proceedings included NRC Staff, TUEC, and, eventually, a single citizen intervenor group by the name of Citizens Associated for Sound Energy (" CASE").

In 1982, CASE began to present the ASLB with testimony by two former CPSES engineers, Mark Walsh and Jack Doyle. Messrs.

Walsh and Doyle advised the ASLB that TUEC had designed CPSES pipe support system in violation of NRC requirements.8 A major aret of concern raised by Walsh/Doyle related to the organization and design interfaces of the CPSES pipe support design groups.' one of the concerns raised by Messrs. Walsh and Doyle centered around the organizational and design interfaces between the various pipe support design groups. Specifically, they were concerned that a lack of coordination between the three a

NRC Staff responded to the Walsh/Doyle concerns by-filing a Special Inspection Team (" SIT") Report 82-26/82-14 on February 15, 1983. The SIT Report was subsequently submitted into the record of the ASLB proceedings as Staff Exhibit 207.

Up until 1985, three design organizations were, for the

! most part, responsible for designing and certifying CPSES pipe

! supports; they_were Nuclear Power Services, Inc. ("NPSI"), ITT-Grinnell ("ITT-G") and Pipe Support Engineering ("PSE").

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pipe support design organizations jeopardized the safety of the

.CPSES pipe support design because the three pipe support design-groups we*ce using a different set of design criteria when designing the pipe support system.

During the ASLB proceedings witnesses appearing on behalf of TUE0 and NRC Staf f testified before the ASLB to defend the use of multiple sets of design criteria by the three pipe support design organizations. One of the critical witness testifying on behalf -

of TUEC was Mr. John C. Finneran, Jr." During the ASLB proceedings, Mr. Finneran testified as follows:

...The changes made (to the pipe support designs) will go to the cricinal desian orcanization and they will review it and make all their own calculations for that change...I might point out that after the final review of these drawings, they are stamped and signed by an engineer with the oriainal desian oraanization...After all the field changes are incorporated in the drawing and the drawing goes through final review from the as-built loading, the drawing will be stamped and signed certified by the oriainal desian orcanization...(E]ach organization that designs supports will be responsible for certifying that the support is good for the as -

built loads...[These organizations) would be ITT Grinnell, NPSI...and my organization, Pipe Support -

Engineering.

4 ASLB Tr. pp. 4971, 4985-4986, 5013 (emphasis added).

The Chairman of the NRC ASLB panel, Hon. Peter B.- Bloch, summarized his understanding of Mr.--Finneran's testimony and the other evidence submitted to the ASLB as follows:

... Staff was relying primarily on the notion that the major groups had to be-properly coordinated...

[C]oordination is necessary so that each major design

" Upon information and belief, Mr. Finneran is currently employed at the CPSES as TUEC's Manager of Civil Engineering.

18

organization knows what it is doing, and what it'is responsible for...Wo are tslking about design interfaces, as I understand the interpretation of the Staff. That is, places where the groups might be working on areas of the plant where they have to know how the work of one affects the work of another, but where the responsibility is clearly defined, there is no necessity to talk about every interface that occurs within the aroups...The responsibility under the testimony was clearly assianed to each of the three suoDort nine aroups...They don't lose any responsibility for the accuracy of desion.

ASLB Tr. pp. 6985-6989 (emphasis a ded).

On December 28, 1983, the ASLB, relying upon the evidence presented by TUEC and NRC Staff, issued a Memorandum and Order

("M&O"). Thir M&O specifically addressed the Walsh/Doyle concern regarding the impropriety of the organizational and design interfaces between the different CPSES pipe support design groups. SSn-M&O Section IV(I). The M&O explained its reason for dismissing the Walsh/Doyle concerns regarding the interface between the-three pipe support groups as follows:

An early_ decision was made by the Applicants that pipe support design would be contracted out to companies who are in the business of designing and fabricating pipe support components. In order _to satisfy ASME Code requirements...it was necessary to provide them with the overall design criteria to be met. The... document which accomplishes this objective was Specification MS-46A. Contracts for the design of pipe supports at CPSES [ Comanche Peak] were awarded to ITT-Grinnell and NPSI. In-addition, Applicants created what became the PSE [ Pipe Support Engineering Group), which also utilized Specification MS-46A. Since neither Specification MS-46A nor the ASME Code dictate in detail the means by which an engineer is to satisfy the design criteria, differences in engineering approaches occurred between the three parallel pipe support groups. (Staff exhibit 207 [ SIT Report] at p. 12; Applicants' Exhibit 142, p. 9).

The fundamental issue for this [ ASLB] Board to resolve is whether these differences in design 19

l approaches represent a safety or engineering concern, i or it they violate any NRC regulations, Staff guidance I or other NRC-endorsed standard...

The evidenpf establishes that eagJt_of these thrfg nine st;pport Qqsign oroanizations hqS its ownJp3qqific _

figgpe of refDgDai.bility since eacit has been asslangst iho responalbility_fgr a snecific groun qf supports.

(Staff Exhibit 207, p. 13; Applicants' Exhibit 142, p.

9). There is no nefsl foi:' crosn commtJnication between Abc three qratJps_LNPSI JTT-Grinnell . and PTSfd_ainpa they share no cqnmon. in-line desion resnonsibility...

The Board concludes that the Applicants have adequately defined and documented the responsibilities and paths of communications between...the pipe support design groups. No NRC regulation has been violated, and the programmatic objectives ...have been satisfied.

(Staff Exhibit 207, p.13)

M&O at pp. 67-68 (emphasis added).

Although Section IV(I) of the M&O dismissed the Walsh/Doyle allegations regarding the design interfaces of the pipe support groups, the M&O generally observed that serious " doubt on the design quality" of the CPSES exist ed, see M&O at p. 1. In an attempt to resolve the doubts raised by the ASLB, TUEC began to submit a series of motions for summary disposition with the ASLB.

TUEC often repeated in their affidavits and motions for summary disposition the same type of factual assertions which led.the ASLB-to conclude that the certification process being employed by the three pipe support groups was acceptable. For examplo, Mr.

Finneran states in one such affidavit that:

As I nrevlt sEly testi fi._qd. . . design _gbanges _ ars subiect to review by tne resno_nalble desion-ornanizations.

(Tr. 4970-71) .

20

.- - , . . . . ..----,---,.,,,.--,-,.,,,,.._-----,--,,._,-,-c.--n,- . - , , , , - - , , , , , , , , , , . - , , . , . ---w- v.

Egg Af fidavit of John C. _ Finneran, Jr. regarding Stability of

-Pipe-Supports and Piping Systems, dated June 17, 1984 at p. 14 !

i (emphanis added).

l In an-affidavit submitted in July of 1984, "r. Finneran (and other affiants) reiterated that the three design organizations-(NPSI, ITT-Grinnell, and PSE) had "sperate and distinct-responsibilities for the design of pipe supports" and all design changes are " returned to the' original designer for correction and rechecking..." Han Affidavit of D.N. Chapman, J . C. Finneran, Jr., D.E. Powers, R.P. Doubler, R.E. Balland, Jr., and A.T.

Parker regarding Quality Assure.'e Program for Design of Piping and Pipe Supports for Comanche Peak Steam Electric Station, stated July 3, 1984, at pp. 13, 36.

By 1985 TUEC's effort to design the CPSES pipe support system remained plagued with design deficiencies. At this point in time, the construction permit issued to TUEC by the NRC to construct the CPSES expired. When TUEC sought to renew its permit, the NRC decided to Institute Construction Permit Amendment ("CPA") proceedings. The contention admitted in the ,

CPA proceedings was as follows:

The delay of-construction of Unit 1 was caused by:

Applicants'_ intentional conduct, which had no valid purpose _and was the result of corporato policies which have not bee discarded or repudiated by Applicants.

Sep 25 NRC 912, 919 (1987).

' In-1985, a former senior pipe support design engineer stationed in the NPSI pipe support group, Mr. S.M.A. Hasan, met with CASE President Juanita-Ellis and CASE attorney Dillie P.

21 4

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mm.__...

Garde and explained, inter alia, how pipe supports were being-transferred between the various pipe support groups and were i

certified using multiple sets of design critoria. CASE.then agreed to represent Mr. Hasan before NRC Staff and arranged for a ;

grant of confidentiality. On January 10, 1986, Mr. Hasan, NRC Region IV Staff, and Ms. Ellis met. During this meeting, Mr. {

Hasan raised a series of allegations, which were transcribed. At this time Mr. Hasan stressed to NRC Staff and CASE President Juanita Ellis, that (contrary to what was stated to the ASLB regarding the process used to certify pipe supports in the various pipe support groups) pipe support design packages were routinely transferred between the three pipe support groups and certified using multiple sets of design criteria." Mr. Hasan specifically alleged to the NRC at that time Mr. Hasan adviser NRC Staff:

... Dave Rencheriz took the package from us and got it passed in another group. I just ask NRC, is this engineerin'? Just because we could not qualify a particular-pipe support package based on the criteria given us...[ Dave Rencher] said, ' Don't worry. Give'me the package back. I will get it passed in another group.' Because they were using another criteria. And they-got it passed, certified, and gone....Quite'a number of times I got a package, we could not qualify

" This allegation was germane to the CPA proceedings-inasmuch as, if true, it establishes that between 1982 and'1985 TUEC had intentionally submitted. material false statements before

-the ASLB.which contributed to a delay'in the construction ~of the CPSES.

12 Mr. Rencher was the CPSES manager of the NPSI group.

22

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J it, and we used to write a memou to Jay _Ryan, chief engineer-[within the PSE group], telling him that this support is failing under NPS criteris...[a]nd they used to pass it.

Subsequently, Mr. Hasan attempted to gain re-employment at CPSES and filed a " blacklisting" charge against TUEC, Stone &

Webster Engineering Corporation ("SWEC") and NPSI. E2e Hasan v.

NPSI. et al., 86-ERA-24. During the course of the Hasan proceeding, evidence in the form of testimony by Mr. Rencher and another pipe support manager, Mr. George Chamberlain, demonstrate-that TUEC was involved in the intentional transfer of pipe cupports between the various pipe support groups and, as such, the testimony TUEC had repeatedly presented to the ASLB that pipe supports were not being transferred between the various pipe support groups and were not being certified using multiple sets ,

of design criteria constitute material falso statements."

The most significant evidence to be aired during the Fasan-proceeding concer::ed the practice TUEC was employing on site to design tr.e CPSES pipe support system. .Specifically, the on-site manager of the NPSI~ group, Mr. David Rencher, testified both at-u Attached an exhibit 2 is.a. copy of one of the memos ~

addressed to Mr. Ryan-that were used to transfer pipe support packages out of NPS and_into PSE.

" On July-8, 1987, - the - intervenor in the CPA proceeding notified the ASLB'that " testimony in [the Hasan) proceedings

[was) of such potential significance to...the construction permit-proceedings that-Applicants should voluntarily, provide copies of all pleadings, documents, etc., in that case to the Licensing and CPA Boards." See July 8, 1987. Letter from Ellis to ASLB. TUEC failed to notify the ASLB of this significant evidence in violation of its on-going duty to do so.

l 23 L

I

. - - . , _ _ . . -.,v._., .. m._ , , . - - -

his deposition and during the hearing that pipe supports were

' routinely transferred between the various pipe support groups and were routinely certified using more than one set'of design criteria. In this respect, Mr. Rencher testified under oath in deposition prior to the commencement of the Hasan hearing as follows:

Q (Were you aware that] the NPS group was rejecting PSE supports during the certification process?

A Yes, I was aware of that.

Q Were you aware of that in 1983?

A Yes.

Q ...in 1984?

A Yes, sir.

Q ...in 1985?

A Yes.

- +

Q The NPS-group was rejecting PSE-packages during the certification process, right? _

A Yes.

Q Of these that were being reLected, were they ever-then recalculated under different criteria?

A Yes.

Q And then they were certified after they were recalculated under different criteria?

A Yes.

e Q- Are you aware whether-or not Mr. Hasan could not certify...some of the packages he was checking?

24

A He could~not certify some of.the packages because of the NPS criteria on Richmond inserts, yes.

Q Did you take-those packages to the PSE group for certificction?

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 group 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.

Q And they could do that because PSE was using different criteria than NPS?

A Yes.

Rencher Deposition Testimony Tr. pp. 78-81, 96-97.

During the Hasan' hearing itself, Mr. Rencher reiterated this testimony:

Q [W]ere you aware whether or not Mr. Hasan rejected Mr.

Ryan's pipe support engineering group [PSE) pipe supports while working in you group [NPSI]?

A There were pipe supports that were rejected out of.my group, and I am certain Mr. Hasan had reviewed some of.

those.

Q And they were coming from Mr. Ryan's-group?

A Yes, they were.

Q (W]ould Hasan attach a memo" to [the PSE packages he was rejecting while in Rencher's NPSI group]?

A Yes.

U See Footnote 6, supra.

M Eg.g Footnote 6, Supra.

25

Hasan v. NPSI. et al Hearing Transcript 2, at pp. 120-121. Algo see Tr. pp. 125, 130, 239, 275."

In essence, the evidence elicited during the Hanhn Section 210 proceedings demonstrated that the interfaces between the various pipe support groups were not separate and distinct; that TUEC knew this to be the case and would routinely transfer pipe supports between the various pipe support groups in an attempt to certify pipe supports in violation of 10 CFR Part 50. The Hasan proceeding further establishes that this practice was well established and remained in place from the time he arrived at the CPSES in January of 1982 until he was removGd from the CPSES in August of 1985.

During the course of the Hasan Section 210 proceedings, testimony from the on-site manager of the NPSI design organization, Mr. Rencher, from another manager, Mr. George

" Also see Rencher Depo. at p. 247 (wherein Mr. Rencher "

was asked to comment whether it was true that "...if supports did not meet the appropriate design criteria using 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..." to which he answered with an unqualified "yes"). Also see Deposition of george Chamberlain at

p. 95, (wherein Mr. Chamberlain, a manager within the pipe support design area, was also asked to comment on whether

" supports were sent to another pipe support design group, such as PSE, and would be considered acceptable using different criteria..." to which he responded: "[S]ome 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 f rom Grinnell to the site engineering group [pSE)." Indeed, Mr.

Chamberlain went as far as to refer to the practice of transferring responsibility of the various pipe supports as the "go around". Chamberlain Deposition at p. 190).

26

/

Chamberlain, and from two pipe support engineers, Mr. Hasan and Mr. K. Ravada confirmed that pipe supports were routinely being i

transferred between the various pipe support design groups between 1982 and 1985. Moreover, the record before the ASLB demonstrates that at no time was the ASLB ever advised of this fact. The record before the ASLB further establishes that although TUEC's counsel knew it had an affirmative duty "to apprise the Board of developments which bear on matters before it...," see January 30, 1985 from TUEC attorney Nicholas Reynolds to ASLB; also see March 21, 1985 letter form TUEC Robert Wooldridge to ASLB (noting a requirement unat TUEC " comply with the Board's request that Board members be kept timely informed of matters relating to the licensing" of the CPSES),

TUEC intentionally withheld this information from the ASLB.

In the course of ajududicating Mr. Hasan's Section 210 case, evidence of an on-going fraud upon the ASLB and the public concerning certification process of the CPSES pipe support system was extensively documented. Worse, TUEC apparently submitted knowingly falso affidavits to the ASLB on this issue. The fact that TUEC engaged in this corduct and had never renudiated this conduct requires this Board to admit Petitioner's Contention 1,

4. TUEC continued to maintain an atmosphere of harassment and intimidation and, in fact, did intimidate and harass engineers and employees and outside consultants charged with reviewing TUEC's design and construction practices.

The harassment and intimidation of whistleblowers at CPSES supports intervenors contention in this proceeding. Intervenors 27

, , _m m_,,_. . _ .._ m ..... . _ , - , . , _

have learned that many whistleblowers believe that TUEC has never properly reviewed their concerns. These whistleblowers include ,

David Meir, Dobie Hately, Ron Jones, Joseph J. Macktal, Jr.,

L S.M.A. Hasan and all other persons who have filed whistleblower complaints under Sec. 210 of the Energy Reorganization Act, 42 U.S.C. 5 5851 since July 13, 1988 at CPSES. The fact that numerouc whistleblowers continue to file complaints against TUEC and their contractors is compelling evidence in support of intervonors contention. Additionally, the harassment allegations of Gary Bodiford were never bought to the attention of the NRC/ASLB. These allegations, outlined in Exhibit 11, also support Petitioners contention. Additionally, Exhibit 12 is the affidavit of Joseph J. Macktal. Th.s-affidavit raises significant issues relevant to the contention. Significantly, TUEC illegally paid Mr. Macktal " hush meney" to keep these concerns hidden from the ASLB. Mr. Macktal worked at the CPSES Unit 2 and his affidavit is clear and convincing evidence in support of Petitic ar's contention."

" Petitioners wish to advise the Board that they need to conduct discovery in order to fully document evidence which supports this and other factual assertions. Certain persons are-in possession of' evidence directly related to this assertion, including R. Micky Dow (and Disposable Workers of Comanche Peak),

CASE, the former_minFrity owners of CPSES, and_the witnesses previously identitled as having evidence related to the CPA hearing regarding Unit 1. Without discovery,. Petitioners will be-prejudiced in their ability to fully explicate the factual basis for-their contention. For example, Petitioners;have learned that-Mr. R.-Micky Dow has had extensive contact with whistleblowers at CPSES, including but not limited to Ron Jones, ~ Dobie Hatley and with the. estate of Charles Atchinson. These w tnesses have provided Mr. Dow with a wealth of information Slated to this l_ (continued...)

l 28 i

The record before the 'CPA-1 ASLB demonstrates that a .l contested factual issue exists with respect t~ harassment and intimidation of whistleblowers. 'Indeed, shortly _before CASE '

signed the Joint Stipulation in June of 1988, CASE advised the ASLB that TUEC continued to manifest "an apparent continuing inability to-put into place a program to adequately and promptly deal with-harassment / intimidation and concerns raised-by employees" and that'"a climate of harassment and intimidation still exists and flourishes" at the CPSES. Eng CASE's Identification of Piping / Pipe Support Issues, dated April 28,

- 1988, attached hereto as Exhibit 13. As-further identified in this document, a factual dispute remained as to whether TUEC had. ,

adequately identified the root cause of: 1) harassment and intimidation of QC Inspectors, id., at p. 8; 2) management's rolo in the harar.sment and intimidation ("in CASE's view, the harassment / intimidation issues raised the management issues again, and calls into question the credibility of the implementation of the technical program") ; 3) and that CASE was disturbed and distressed that TUEC had withhold information regarding the intimidation of Cygna, a fact that TUEC continued to conceal but which CASE gleaned from access to some

, la(... continued)

-proceeding, some of which he has filed with-this Board.

Additionally, Mr. R. Micky Dow is also in the possession of a number of tape recorded conversations of.made on the CPSES site.

Mr. Dow has alleged that these tape records contain evidence of misconduct committed by applicant which-is directly related to this proceeding. Petitioners have not had an' opportunity to review these recordings, 29

[

L i

I - - -. .a , . . _,; . . _ , _ - . .

- . - _ _____. _- _ .m. . _ _ _ . _ . . . . _ - .. . _ _ ._ .-- __ __ _ . _ . _ . - ,.

' documentation provided CASE by the' minority owners. 14., at p. >

11.

The harassment and intimidation issues continue to present sufficient evidence that TUEC has not repudiated its corporate policy which resulted in the delay of construction of Unit 2, and.

further demonstrates that TUEC has not repudiated this policy."

Conclusion For the foregoing reasons this Board should admit Petitioner's Contention 1.

Respectfully submitted, Michael D. Kohn Stephen M. Kohn Kohn,-Kohn and Colapinto, P.C.

517 Florida Avenue, N.W.

Washington, D.C. 20001 (202) 234-4663 Attorneys for Petitioners Dated: October 5, 1992 053\interven.rev

" Significantly, in an interview before NRC-OI, attorney Billie P. Garde conceded that TUEC continued to get " egg on

[their] face" in the " licensing hearing" due to the harassment and intimidation concerns ~of various whistleblowers. Garde testified to.TUEC's spc ific intent to suppress the harassment and intimidation-a2'.agations from the ASLB.- See Exhibit 15.

. Garde, who at the-time of this interview had-been sued by-Mr.

Macktal for malpractice, was very derogatory towards her former client during the. interview. What is significant'about her statements concerning-TUEC's intent was that she was' forced to:

explain TUEC's motive in executing the Macktal settlement.despite her anger towards her former client.

30 1

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CPSES Unit I wan aemonst rat.ng ine sa f et' o! One but for activitier relating to om,. doout plar.t to itself and to tne NHC, Bracon cen L;: ces to e nc om . = . 6.!

cautes io: " delay i n const.ruction of UnaL '

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.1 : e r.5 : n c. - r e l a t eo reinsoection and rewo:A t r.a t r.a ; ' < .

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ni, a; August '985, wner. the construct;or oerm.:

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tr." NRC' : stance preventec wel; as all conduct wh2c h may nave by Lha; ; Ice

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'me act: . :'.c d; close .aterial :.nformation to Hracoa N:ering de avec construct;o:- c: R2t om slons may hau .

.tt auty to 1 E ' t' r e t:w corp.et ne's o!

B r . .. o s ' tulfijiment o;

"t actual record and tne acequacy of f a c t.u a l r e mo r. w to i nformat;on

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on;;. gat;or- to -he AS: B, to tw or CPSES NRC, may have ae;ayed compie. on proceealngs, and to th<
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by precluding, s l o w.i n g , or S .:c r T.i i r eD. r e s e n t a t i o n s ,
an an. erat;na licer.se should oc c. r a n t e c .
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3-tai 10Ies to disclose, and tnreats' constitute intentichal-conduct, which had no valid purpose and were the result of corporate i po;icies wnich have not been aiscarded ol repudiated oy TU Electric.
Tne misrecresenta. lor.s and failures to cisclose material informa::on retcrr.e_d to above as potentia;1y oelayir.g . ;cens:rg and compie lon of CPSES incluce, but are no: 11mitec-to:
1. Misrepresentations and failures to aisclose.
material.information as to the cost, and forecastea cost, of CPSES;
2. !:is repr es e ntat ions and failures to disclose material information as to the schecule for anc ante of comoletion of CPSES;
3. Misrepresentations and failures to disclose material 'nformation as to the oesign of CPSES anc ine adecuacy thereof;
4. Misrepresentations and failures to.cisclose material information as to the construction ~ot CPSES and the adecuacy-therect;
5. Micrepresentations and tailures to cisclose material information as to TUEC's complianc: witr applicable reguistions;
6. Mi.srepresentations and failures to c'asd.ose material infcrmation as to TUEC's.acnerence to commitments made to tne ::RC ;
7. Mis:.epresenta tions a r.d failures tt tisclose
-material information as to the reaciness, w.;. ihaness, and ao:.;itv.-of TU Electric to s e r v e a s - a c. e n t i o ! -- e .d fiduciaries to its'co-owners;
8. Misrepresentations and failures-to disclose of TU.
material inf ormation - as to' the competence Electric to perform the duties of. pro 7ect manager;
9. Misrepresentations arc :a..ures to cisc:ose material information as to the competence of contractors ano suocontractors:
10. Misrepresentations and. failures to cise;ose material information as to the competence of tne arenitect/ engineers;
_ _ . - .2 _ __ ____. . _ ._ __ _ _ _ , ._ . _ . _ . - _ . . . .. , .--.
4 A
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to obtain nermath and icen>e to conbtruct anc Operate
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=
..;u:e+ t o c: Lc 1(ien 4
nater aj laformation as to ne r e a d i n e *:.L , e . . . . ' . .; t m > j and an:lity of licensing cot . <e. to repiece J : w co- I owner:. t>eiore t, h e f4RC ano : : e.a t ed or oceN;: <: L ; l I
4 i 1
j 4 Mi s t ept e se n t a t. i on e ano f 1111 u r es to dinc1 ore !
tra t e r : a i information ar. to ine prudence of "U ;
ctric't perfarmance af t: . outie , unae: ine 2 0; n!
.w r t:h i p Act eemen t ; j 1 i l '2 . M.arepreuentationL and :6;;ures t o di sclos" i
~aterial 2nformation as *o * ~. e ,$412 and wor *;t .t n; of '
1 TU Electric's performance of 9 e ., : s e r-v i c e s for uracos l
! and athetn; !
16. '115 r e p re s e n t a t i o n s and ;a.! ares to disclose
! mate ial .information as t. o the competence of TU '
I L'lectric and other Texa: 1lta..*, Jet personnel; a r.a f
17 Mihreprecentation and fal.ures to dlLciose !i material information an to t 'i e accuracy of ". tate"ent
n30 e by TJ r l ec t. r a r: to_the 'W: l On fiovemrez 28, 1986, an .:.s Men 'anoum anc 0: der !
i t?2 .covery o: ; c x .. a Doc a;r.e n t ; ) , . *te AS* 3 icted n c. * 'l
_ ec;r2c*- e rup a e'rr r, t of tno .aw .,r of Worsnan, r o: +ne, j samnelo
~
I. Wooldriaan to ,oe It i co--ounern t hreatem to ,
i j comp A 1ca t a tnis case a n d tr,a y reco:re our action -
.a tne fatur , ,
TU Elect.ric has cenerally caused _;icensing.counv.el t.o disclaim j 1
, representation of 9 azor, and to refuse to adv:ce ard consult !
i
j. with.Steros ir connect; o- ;;- NRC n:oceedings, uh ie :ne.
-disclab ers ncc not comer. cec a -.nt tine of tne expiration.of i
the Unit . cenetructior per::t, :. t :tay te :nat prior ac;ivities i
_. _ , ~, . _ _ _ - , _. , , . -_ ,,_ - ,,, - ..,,,_-,.,.__ _ _ _ _ . _ _ _ _ _ .. -. _ _ _ . - . _
f l 1
1,y 1icensAh4 C O U M r. 01 W' . ' U I * + '~ t e d I ' ', .
et dilUCl!Oh Dy To Electric that they hot fu}f;.1 at t 0! ney OD21 Gallon' tLward: t ht> Co-owner:
1i t D 1 '; . 5- I hi* C a i. e , and if tne s ;u: 1- of : : centina councel to IU3 fill their I I O U C A 1 T y U U l l g d *_ I O T tO B ! O T O!- hat IOC LO Gela ' in C o n i. t r u C ".10 n of C P E i. i Unit ,
T10 :1 '. L C " Ce l . r .at 'OuuPd DV TV .
!: } e c t r : C ' 13 t. e n t ; O r a i > ; O n c o C *. , wr..tf i
*n U.17 D'.;rpO5e and WaE the r Ull Of Cor[Ofate 7 0 .t 1 C ;+r* t'f:li J' ' ' D e t' ' '
diLC3rCOd n: repudiated by I'i l i e c t ! l i.
Ti' Electric har recent.v cec;are:, .' o r * : ' . to .ne CPSE:
, cg p. , , q u- . ...
.. o. s .e .o. g .. . g. u ,q. , -
o .2 n..om-. c, . .c.... -
. r. n..s 3 . e. r,-
'l a t
e ! L . '. f s n y D : N C h ef of .i . *CL: Is . . G .. . ' 4 ; 'Y
..Cationt LO Brd?O5 Ti a V e !eSU!ted in d e 1 /. y o f CDT!* J C i . Q i, f CPSES Unit 1, t il O D dhy LUCh dela;, <o c C a c L Ca d by TC I ^ "'*rIC' .7 tent 10MS1 ConduCL, Which had no Va1id pu!POEe add W a !- DO re U3t O!
COrDarSte po l i C 1 t'E 'J f.1 t l h a V f' '~1 G *. I'tt e r C. 'a rCe i s* FOOLdlated by
.~ l! . ' .1 o _. .. ..
,. s t
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. . . . . m . . . n. .
CBnt.:y 4 ._ ?t: t on ( C ) "O
. er CaC +C .
_ . , .ntent'.Onal C C M Ciu C t R. P,_O.D. O.GEt LO I _n_t_e T O C 2 ' O ! V NO, 1 3
3 r 5 2 0 S D e l l t: V e t.
L u a *. a.A
.-, , ,:. - l e c t r ,' C and ~. e X a 5 Utilities Services personnel in att anaance at Owne r s Com*ni t t_ ee meetings may oe he ld reSDODSible fC. intentional m1Erep.eSentations and Omissions to Bra OS.
-.censinc. coanse. wno nave soeca: 1 c a ., . v c . s c i a l:r ea any at:crney-c. lent re]at;onsnip tlin 3rs20s in: lace Mestri.. Woo;cricce.
.r. O Vi e V e r , iD f.C 3 0 1 0 0 , D ; C. n a n , JCC :. C. C e ; 1 n c .
.m. *. .e, s. c. r. . o. - O .# ,I ^ 9 ~ ." 'a' u' ." V . O.
, . 9 0. g< ' u p- .- .n. o a g a .e r
-'e
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be
+
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,7y u .r. r o., c .~ . .
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- 0, .w. . - - O *. r .n. e l
1;Cente app 32CotIJT huh Or OVer had any attOIDOV./Cl;dut ! '1d1.10'1L339t With any CPSES CUDt'r Ottaer Ladn TV ['UC*rIC.'
3000 IIt C K L a ') .
t r.r e a t.e n e 0 Bra 20t in an attempt tO DrUVeht at i ? O:n . J l ! 1 1 ' 1 D O. itS O b l i C. a t i O T' t
o the NRC ' tat:
, a"d tne 1; censing boarus.
U t . e r Y t bl e" e : *'., .
W i' . C > ' r l. : O U C O n t> C r G e b af
.Icath GaVP O Dpe d ! C .M .egd_ piedding5, algnea D y T'.) EleC : .c counse! I'U Electric
aenlai of .it 3ge ac e :e.ationtnip witn Bra:et .
15 alin !OLLC 1r a .Haal D 1 e a d :. ng.
i T. *1 ' T ! O d a t o r V ?JO . .=h Cpf ? . . ! y ". '* C O *. e f 'J ) *00 C U D C U C '. ECOM !) .3CC n o t. . e> r,
.o +
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t
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i o;n : 9 '- to ja.
_! n.:._e r r oa a t _o _r _,__-- . No _. 2.;.
c Exulain r> r e c i t e ;/ now the conduct causea a aclav. in n..,
c s> .c .
. . .. .J c ., c a, iy
. r... .
esnonte to . n .t r r oaat o: . No. .c Brare. _ a - .c: i - : . :- t.me precisely icent;fy no'./ TU
..m, , , , , . , , , _ . .,.. c . .. . ;..._,v.._,
. .: ._ ..- - e m. ._ c. , . . , _c
. u r_ ..
3. . :
..._..t.....
.o 11cer. ;rm emve, cc. a a . . r e c. a r d fo: :2 ace:arv. ca. aat;ons :o .
t? co- ov ne n ic .t have :a u sed aclay in construcr. ion of c?sEs o,.,
.4_ 1.
-Interrocatorv No. 1.d
c. Cite all cocuments taat cupport your answers to
.a., b , en c. aoove.
Resoarse to : r.terrocatorv No. i.d . .s._. e .
)
l t
4 l .
i-i i
l
, Documents supporting these contentions include but are l 1 l not limited to: !
l 1. Plaintiff's Answern to Interrocotories from i l Texas Municipal Power A 9 encv., catec Apfil 20, 1987, in ,'
Texas Utilities Elect ric Co. v. Tex-La Electric cooperative of Texas, Inc., g al ,-in

ne Dist ci -
p Court of Da!!as County, Texas, 14th Jucicial District, ;
a' Cause t; o . 86-6809-A. t 1
g .
2. Plaintiff's Response to Defencant' Motion to
Compel Productior of Doct'.ments anc Recuest for Hearing l on Ob'ections and Motion for Protective Order, catec' 3-July I6, 1987, in Texas Utilities Electric Co. v. '
Tex-La Electric Cooperative of Texas, Inc., et al , in-4 the District Court of Dallas County, Texas, 14th .;
! Judicial District, Cause i;o. 86-6809-A. . i
+
,1 j- 3. Correspor.cence between TUGCO and TU Electric l anc Brazos i i
4. ASL5 transcr: pts;
.:h S. ASLB pleadings; 1
6. CPRT Program Plan Rev. O, 1, 2, 3;
i +
7 l SAP results repo r t. s ;
j 8 SDAR's; '
9 '" n e ?SAR;
10. The rSA?.
vgra Review Issues sistt;
2 Transcripts of n uolic Meeungs;
13. CPSES Project status Reports;
! 14. Owners
Co::unittee Meetinca minutes, and otner written ir. format. ion distributed at or through the .
-Owners Committee;
,. 15. PSA's; !
r
16. ?eports prt,arec , tne Management Analysis-i Corporation; i 17 Interna - T Electric ana Tucco eocuments; i ,
' " * ' ' ' * " * ' ~ COct*.ents Cror BTC'<'n & Root, Gibbs 16 !=
Hil., anc-Otner ~ 13170 parties.
.)
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19. Owner s Conan: ttee Meeting tiinutes ;
-Interrocatory No. ?.a ,
2. What oo you Rnos tnat will sheo light on the purpose vi ,i Applicant's :ntentional conduct?"
i facts of which you are aware inat !
r",
3'
1. a 1 r" t r e'
. r .aat t,l .u3
. g e. +r n was no valic purpose for sucn ,
l conauct.
?
Response to Interroaatory No. 2.a . .
f
/sssuming tnat *he actions ceccripec in tne answer to 1, above, constitute intentional conduc ; as Interrogatorv No. !
I is conductina discovery'in intenced by this Interrogatory, Brazos -- i f
Se stat.e court litiaation with respect to the purpose of such ~ :
act2onc, and will answer this question wnen it is uble to do so, {.
_ ~%_ l ,
Interroaatory No. 2.b i Y
2. o. Identify all persons who have knowledae of the -
facts aescribec in your answer to 2.a. !
D.
R e Fr DO n 9 e to Interrocatorv No. 2 I i
I !
i See the answer to 1.a., above. i l- I l .1 i i 1
Interrocr or. No. 3
-j
'.ist all the policies of wnich-you are aware.that caused
-3. Unit 1 -
or cont: :Duiec to celay in completion.of construction of t j
With respect to eacn policy, ->
-l
a. Identify the person (s) who formulated or ;
I promulgated each policy. a i
the i
b. ipecify, with as much precision as'possible I cate(s) uoon which policv was formulatec or i
I
(' cromulaatec. .
Specify when each policy was first implemented.
I j c.
l e
c. "ow was each-policy implemented?
i
~
)-,--
9 .
- ---- _h
/ o t>Nif f D sI ATIS 8 ., < '~ I NUCLL Mt f1EGut ATOltY COMMISSION
?;
d .Y w e,m NG 10 N D C 70'.%
v r !
Sept ember 15. W9?
'% , ,,,,/
Doc ket t,'os . 50 845 and 50- '6 Mr. Wi',liam J. Cahill, Jr.
Group Vice President, Nuc lear 10 Electric Company 400 floi th Olive Street , L.B. 81 Dallas, Texas 75201
Dear Mr. Cahill:
SUBJEcl: COMAtiCHE PEAK m'" ELECTRIC STATION - Rl0 VEST f 0R DOCUMEllis TO SUPPORT NRC S'4D w "'7 oi ?.206 PETITION (TAC NO. M84073)
The NRC staff is conduct u '*s 9 %! a materials related to the 10 CFR 2.206 Petition filt M F' oset d. V.ohn on June 11, 1992, on behalf of the National Whistleblower Cente. and Messrs. Macktal and Hasan related to the Comanche Peak Steam Electric Stition (CPSES). The staff has determined that additional documents are necesstry to complete the review. You are requested to provide Exhibits L through Q, inclusive, to the January 30, 1950, settlement agreement between 1U Electric and Tex-La Electric Cooperative of Texas, Inc. (Tex-La). You are also requested to provide copies of settlement agreements with all other former co-owners of CPSES, and exhibits similar to those requested for TV Electric's January 30, 1990, settlement agreement with Tex-La.
The reporting requirements contained in this letter affect fewer than ten respondents, therefore OMB clearance is not required under Public Law 96-511.
You are requested to provide these documents within 20 days of receipt of this letter Sincerely,
/
fkiulzw $l c ~p, ~
Martin J. Virgilio, Assistant Director for Regions IV and V Reactors Division of Reactor Projects Ill/IV/V Office of Nuclear Reactor Regulation cc: See next page K EXHtBIT -
PAGE DF -
/'
M h c.1N vl-
t Jonnes. .... ... Sc u u LT u & B u n c u e TT c
.. o .... .. .... . .,... w .. .
$v tt e00 tabt e '
+ 0 2 % T . C a* A b s E f f C 84 5 0 4 S f R( C Y. N
A L Ni t+ 0 t O N. O. C 20007
COCS i iso,a e.s e<uo m me. ace......~. .
May 20, 1992
'H A TE},ECOPY MID PAU, ,
Mr.-R. Micky Dow, Director !
Public Relations, D.W. C . P. S. E . S . '
322 Mall Blvd. #147 Monroeville, PA 15146 Cear Mr. Dow:
1992 letter to Recently you sent me a copy of your May 16, i i n-the complaints Division of the Securities & Exchange Comm ss o In addition,-_
l regarding the Comanche Peak Steam Electric Station.
yesterday, as well as last week, you tried unsuccessfully to P reach me by telephone.
on behalf of my client Tex-La Electric Cooperative under Article of Texas, IX of Inc. (" Tex-La"),
I wish to advise you that, Tex-La's January 30, 1990 settlement agreement Tex-La, with Texas as well as Utilities Electric Company ("TU Electric"), are. precluded its employees, attorneys and other consultants, from assisting or cooperating in any way with your organization, or with any other third party, in opposing TU Electric in '
including the connection with the licensing of Comancho Peak, issues addressed in your May 16 letter.
related-antitrustneither I nor eny of my colleagues at this firm can- be Therefore, of any help to you in this' matter and I would very muchit if yo appreciate i
contact any of us.
Thank you for your cooperation and understanding.
Sincerely,
/.- .W William H. Burchette WHB/dms
..UT cc: Robert Wooldridge
? AGE - DF .
John Dutts suf f C 8050 1005 CONGRESS AvtNut Foi entCattL AvCNut av5 fin.itxAs 7870t aoames, FLORID A 33t34 7 006 1512)472 80S1 (306)371*2600
. , . . . - .. , a , , - - + _ . ~ ~ . . , - . . ~ . . .- - ....- - - - - - - - . . - - . , , .. ~ . . - . - .-,n_ , . - -,, ,
._. _ __ . _ _ . _ _ . _ . _ _ _ . . . _ _ _ . . _ . = _ _ _ _ _ . _ _ . . _ . _ _ _ . _ _ _ _ _ _ _ _ _ . _ _ .
l
\
AGRERttEWT between TEX-LA ELECTRIC COOPERA'!TYE OF TEXAS,INC. .
Ter-La i
A
)
TEXA5 UTILFTIES ELECTRIC COMPANY TU Electrie Dated as of March 23,1989 s
P L
i- L i EXHIBIT .--
i i EgGE OF-
TAllLE OP CONTEKT5 PAGE i-I DErlNTTIONS ..............................
9 RECITA LS . . ..............................
10 A RTICLE l, GA LE AN D P U RCll AS E . . . . . . . . . . . . . . . . . . . . .
10
' l.1 Properties and Assets Sold and Purchased ............. 10 l .2 C losi ng . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1.3 Trans f er of P urchased A ssets . . . . . . . . . . . . . . . . . . . 11 1.4 Enforceability of Agreement . . ................. 11 1.5 Method of Payment . . ..................... . 11 1.6 Payment of Total Payment . . . ............... 12 (a) Payment U pon signing . . . . . . . . . . . . . . . . . . . . . 12 (b) Payment at the Closing. . . . . . . . . . . . . . . . . . . . . 12 (c) Deferred Payment . . . ....................
14 ARTICLE 0, REPRESENTA~!10NS, WARRANTIES AND AGREEntENTS OF TEX-LA 14 2.1 L egal S tatta . . . . . . . . . . . . . . . . . . . . . . . . . - . 14 2.2 Authority for Agreement. .................... 19 2.3 Appr ovals . . . . . . . . . . . . . . . . . . . . . . . . . . . IS
2. 4 Liabiliti es . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2. 5 T a t es . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.6 Title to R eal P ropert y . . . . . . . . . . . . . . . , . . . . . .
17 18 2.7 Title to Personal Ptyperty . . . . . . . . . . . . . . . . . . . . 19
2. 8 Li ti ga ti on . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 2.9 C on t ra cts . . . . . . . . . . . . . . . . . . , . . . . . . . . 20 2.10 Exclusion of implied Warranties . . . . . . . . . . . . . . . . . . 20-2.11 Accuracy of Representations and Warranties . . . . . . . . . . . .
ARTICLE IU, REPRESENTATIONS, WARRANTIES AND AGREEMENTS 20 OF T U E LE CT RI C .........................
20
- 3.1 C orpor at e S tat us . . . . . . . . . . . . . . . . . . . . . . . . 20 3.2 Authority for Agreement. . . .................. ?!
3. 3 A ppr ovals . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 3.4 Aut hority f or T U C G uar ant y . . . . . . . . . . . . . . . . . . . 22 3.5 Accuracy of R4resentations and Warranties . . . . . . . . . . . .
.. 22-ARTICLE IV, PRE-CLO6ING OBLIGATIONS . . . . . . . . . . . . . .
23 .
4.1 Re!resentations, Warrantles and Covenants. . . . . . . . . . . . . 23 4.2 Abatement of Partletpation in Pending Litigation . . . . . . . . . . 26 4.3 Agreement to Obtain Approvals . . . . . . . . . . . . . . . . . .
i t
3 Y,
L .
f t-
l 27 ARTICLE V, CONDITIONS TO OI1LIGAT10NS TO CLOSE. . . . . . . . . . . .
27 5.1 Conditions to Obligation of Tex-La to Clo,e . . . . . . . . . . . . 27
. . . . . . . . . 9 (a) Representations and Warranties . . . . . . . . 28 (b) Compuance With Agreement .................. 28 (c) Receipt of Payment . ..................... . . . . 28 (d) Receipt of Closing Documents. . . . . . . . . . . . . . 28 (e) Receipt of IRS Ruling ..................... 28 5.2 Conditions to Obugation of TU Electric to Close . . . . . . . . . .
28 (a) Representattom and Warranties . . . . . . . . . . . . . . . . . 28 (b) Compuance with Agreement .................. 29 (c) E !Uvery of Pending Litigation Documentation. . . . .. .. ..... .. . 29 (d) Receipt of Closing Documents. . . . . . . . . . . . . . . . . . 29 5.3 Ccoditions to Obligation of Both Parties to Close , . . . . 29 (a) No Adverse Proceeding. . .................. 29 (b) Approv al by P U C . . . ... .. .. .. ... .. .. .. ... .. .. .. . .. .. .. .. 31 (c) Approval by HRC . . . . . . . 32 (d) A pproval of REA, CFC ard F FB . . . . . . . . . . . . . . . . .
(e) Execution of Amended and Restated Power Supply Agreement, Amended ard Restated Transmission Agreement ard AmerWed ard 33 Restated Distribution Service Agreement. . . . . . . . . . . . 34
( f) C ons en tJ o f M e m be r s . . . . . . . . . . . . . . . . . . . . . .
35 ARTICLE V1, CLOSIN G DOCUMENTS FROM TEX-LA . . . . . . . . . . . . .
35 6.1 Deeds and Transfers, etc. .................... . . 35 6.2 Lim Search ....................... 35 6.3 Certificate of Secretarial Offleer . . . . . . . . . . . . . . . . . 35 6.4 Counsel Opinion ........................
36 ARTICLE VII CLOSING DOCUMENTS FROM TU ELECTRIC . . . . . . . . . .
36 7.1 Proof of Payment. ....................... . . . . . 36 7.2 O the r Instru m e nts . . . . . . . . . . . . . . . . . . . 36 7.3 Certificate of Secretaris! Officer . . . . . . . . . . . . . . . . . 36 7.4 C ounseA l's O! nion . . . . . . . . . . . . . . . . . . . . . . . .
37 ARTICLE VIII, CLOSING AND INDEMNIFICATION . . . . . . . . . . . . . .
. . . . . . 37 8.1 Indemnifleation by Tex-La . . . . . . . . . . . . . . 37 8.2 Irdemnification by TU Electrie . . . . . . . . . . . . . . . . . . 38 8.3 Survival of Representation ard Warranties . . . . . . . 38 8.4 Notice and Opportunity to Participate in Defense . . . . . . . . . .
38 ARTICLE IX, SETTLEMENT OP PENDINO 1JTIGATION . . . . . . . . . . . .
. . 38 9.1 Tex-La R el ease . . . . . . . . . . . . . . . . . . . . . . . . . 40 9.2 Tex-La Covenant N ot to Sue . . . . . . . . . . . . . . . . . 46 9.3 T U Elec tric Release . . . . . . . . . . . . .. .. ... .. .. .. ... .. .. 48 9.4 TU Electric Covenant Not to sue. . . . . . . . . 52 9.5 Assumption of Liabilities and Obligr?hns are trdemnification. . . . . 54 9.6 Covenant of Cooperation. . . . . . . . . . . . . . . . . . . .
54 9.7 Termination of Participation . . . . . . . . . . . . . . . . . . . 56 9.8 TU Electric Actions and Litigation Costs. . . . . . . . . . . . .. .. 57 9.9 Termination of Joint Ownership Agreement ard Other Agreements
.II .
_-m____-_- . . _ - -.-.-
t I
58 .
ARTICLE X, TERMIN ATION OF AGREEMENT . . . . . . . . . . . . . . - . . <
58 l 10.1 Termination of Agreement by TU Electrie . . . . . . . . . . . . . 58 L
10.2 Termination of Agreement by Tex-La . . . . . . . . . . . . . . . 59
..................... 59 10.3 Automatic Termination 10.4 Walver of Conditions ...................... . . . . . . . . . . . . . . .
59 '
10.5 Cancellation of Comanche Peak. . .
60 AllTICLE XI, MLSCELLANEOUS PROVISIONS ................ ;
60 1 1.1 B ulk Sales L aw ..W . .alve . . .r .. ... .. .. ... .. ... .. .. ... .. ... .. .. ... .. 60
!!.2 Further Assurance _ 6t#
!!.3 Prepayment of Tex-La Comanche Peak Debt . . . . . . . . . . . . 60 11.4 No Thiru Party Beneficiaries . . . . . . . . . ........ .......... 61
! ! .5 Def ault . . . . . . . . . . ................ 61
!!.6 Property andTransfer Taxes . . . 61 (a) P rope r t y T axes . . . . . . . . . . . . . . . . . . . . . . . . - -
61 (b) T r ans f er T axes . . . . . . . . . . . . . . . . . . . . . . . . 62 ,
! ! .7 E r pe ns es . . . . . . . . ................. ...................
62 ll.8 Governing Law . . . . . . . . . 62
! ! .9 Announ ce m ents . . . . . ................ .................... 62 ll.10 Entire Agreement, Amendments .
62 l l . l l A ssi gns , e t c. . . . . . . . . . . . . . . . . . . . . . . . . . . 62 l l .1 2 N otl ees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 I I .14 H eadi ngs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 11.14 Execution and Counterparts . . . ................ 64
!!.151nterest on Past Due Payments . . . . . . . . . . . . . . . . . .
64 11.16 Use of Representations er Reef tais ................ 64 11.17 Separate Litigation . . . ........... .
. . . . . . . . . . . . . .,.... ..... 64 11.18 Construction of Comanche Peak 64 l s
1 1.19 Se ve r atdlity. . . . . - . . ................ .................... 65 11.20 Time of the Essence. . . . . . .
m
-ill-1
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LUT OF EKillBffS_
PAGE I ,
Exhibit A - Assignment Agreement 3
Exhibit D - Guaranty Agreement Exhibit C - Electric Cooperatives trat are Members of 3 Tex-La Electric Cooperative of Texas,Inc.
4 Exhibit D - Deed of Trust andSecurity Agreement 4
Exhibit E - Promissory Note 8
Exhibit F - Special Warranty Deed With Vendor's Llen and Bill of Sale 33 Exhibit G - Amended and itestated Power Supply Agreement 33 Exhibit 11 - Amended and Restated Transmission Agreement 34 Exhibit ! - Amended and Restated Distribution Service Agreement 35 Exhibit J - IIeron, Eurchette, Ruckert & Rcthwell Opirdon 36 Exhibit K - Worsham, Forsythe, Sampels & Wool &idge Opinion 40 Exhibit L - Tex-La Release 45 Exhibit M - Tex-La Covenant Not to Sue 48 Exhibit N - TU Electric Release 50 Exhibit 0 - TU Electric Covenant Not to Sue 53 Exhibit P - TU Electric Azumption andIndemnity Agreement 54 Exhibit Q - Tex-La Indemnity Agreement
-I V-f
Practices and Consumer Protection Act, against TU Electric or TUC, or troth, in any capacity, whether individually, as Project .'.tarviger of Comanche Peak cc otherwise, and their respective insurers, agents, servants, employees, officers, directors, shsrehciders, consultants, attorneys and representatives, past and present, ard any ard all of their respective successors, subsidiaries and affiliates and their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present.
(b) Except as provided in Section 4. (f) hereof, Tex-La, for itself and on behalf of any person or entity, private or governmental, claiming by, through or under Tex-La, Ireluding without limitation, to the extent it has the standing aM right under law to do so, its Members and customers (including the ca.stomers of Tex-La's Memt>ers and other wrolesale customers) and its or their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and repreentatives hereby arther grees and covensnts that, upon and after the Closing, neither it nor they claiming by, ttrough or under Ter-La, Irdividually, collectively or in any combination, will directly or indirectly, oppose, etudlenge, contest or assert siny eomplaint in any court or before any administrative agency or body or..in any other forum what oever with respect to, or in any manner involving, concerning, arising out of, or relating to, Comanche Peak and the ircidents ard attributes thereof including, without limitatjon, the planning, design, construction and lleensing of Comanche Peak and the management of steh planning, design, construction or licerising or any other aspect of _ such plannirg, design, construction or lleensing, the costs and schedule of construction and completion of Comanche Peak, and the reasonableness, prudency or efficiency of the plannirg, design, construction and 1;xrsing of Comanche Peak and the management of such
,. , , .e
, jg (.
planning, design, construction or licensing, and the reasorableness, priidency or efficiency of the managem ent, pmeurement, conversion, enrichment, j fabrication, shlpping, transportation ard storage of the F"el, arr! the costs ,
incurred in connection with the management, procuremrnt con /crsion, enrichment, f abrication, sNpping, transportation ard storage of the Ft.el, and the breach of the Joint Ownership Agreement and any expess or implied j warranties arising out of the Joint Ownership - Agreement, a'd any representation, alsrepresentation, disclosure or nort-disclosure in connection
with the negotiations or preceding the execution by Tex-La of the Joint Ownership - Agreement, and in connection with the performance or nonperformance by TU Electric of its duties, responsibilltles or obligations under the Joint Ownership Agreement as Project Manager or otherwise, e id the failure of TU Electric to pursue any remedies, either at law or otherwise, ttat' may be, or may have been, available against any and all contractors.
subcontractors, stop11ers, consultants, vendors or others with respect to~
Comanche Peak (including separately the Station, Fuel or Transmission Facilities) and on account of anything that has occurred or may have occurred, in whole or in part, with respect to Comanche Peak, (including separately the Station,- Puel or Trarnmtssion Paellitjes) and the incidents and attributes ,
thereof and any of the foregolog whether iciown or unknown. Notwittutanding any other provisions of this Agreement, nothing herein 'shall limit Tex-La's ,
right to defend the prudency of its participation in Comanche Peak or the settlement of the Pending Litigation before any cotet or regulatory agency provided, however, that since TU Electric by this Agreement is reimbursing Tex-La foe its attorneys fees and other litigation costs related to the Pending .
i >
Litigation, in no event shall Tex-La tme any information obtained by it or its attorneys, throtqh discovery in the Pending Litigation in any manner adverse
~
7 I
.Y '
'A ,
~
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II ', -I M

1
, , ~ . - , *.. -,,,A
to Ttl Electric and in to event shall Tex-La contend, pleau, assert, or claim in any proceeding that TU Liectric or the Project Manager under .c Joint Ownership Agreement acted imprudentiy or (Mt any costs associated with the ,
' l plannire, design, construction ard licensing of Comanel.e Peak and the j l
mann gem ent of such planning, design, construction or licensing were imprude, tly incurred; provided further however, tMt this sentence shall not 1
I prohibit Tex-La from furnishing f actual information in response to a specific discovery request and shall not require any representative of Tex-La to violate a,ey ooligation to tell the truth under osth in response to a specific request therefor.
(c) Notwithstanding anything conta.ined in paragraphs (a) or (tNTthis Section 9.2. -
or elsewhere in this Agreement, Tex-La speelfically does not covenant not to sue, and specifically does not agree to not assert, challenge or contest, with regard to (1) Subject Claims arising out of or under this Agreement or any of the other agreements or instruments to be delivered pursuant heretol (2) Subject Clajms which could not have been brought in the Pending Litigation ard which accrue on or after the Date of Commercial Operation (as that term is defined in the Joint Ownership Agreement) and which are based upon the acts or omissions of TU Electric or the Project Manager other than in connection with the planning, design, construction and licensing of Comanche Peak ard the management of such danning, design, construction ard licensing; (3) any defenses which Tex-La has ce may have to Subject Claims asserted against Ter-La by any persons or parties whomsoever, provided that Tex-La may not seek any type of affirmative relief hereunder against TU Electric, TUC, or both, their successors, stbsidiaries aid affiliates, or its or their respective insurers, agents, servants, employees, officers, d! rectors, shareholders, consultants, attorneys and representatives (4) any counterclaims which Tex-La has or may have against any party other than TU Electric. TUC, or both, their successors, sutaldlaries and affiliates, or its or their respective irsurers, agents, servants, employees, offleers, directors, shareholders, consultants, attorneys
' and representatives, art:ng in such capacity, wlth respect to any r ,
Subject Claims being asserted against Tex-La by anyone other than
+
T U E'.ectric. T UC or tio th, their successors, sutnidsories ard alf tlistes, or its or their respective insurorg, agents, sePVants, employees, officers, directors, shareholders, consultants, attorneys and representatives; or (5) any proceeding in which TU Electric's rutes are being determined, provided tint Tex-La shall not oppose, or assist any third party orposition to, the inclusion in TU Electric's rates of any aid all costs related to Comanche l'eak.
(d) At the Closing Tex-La will execute ard deliver to TV Electric the form of Covenant Not to Sue attached hereto as Exhibit M. Further Tex-La covenants and agrees that it will cooperate and assist TU Electric in connection with all necessary approvals of this Agreement and that it will i encourage and m!! cit its attorneys, including lieron, Durchette, Ruckert &
Rothwell and !!ughes & Luce, and Tex-La's consultants, not to oppose er assist any third party in opposing TU Electric in connection with ary matters relating to Comanche Peak and,if necessary to prevent a confilet of interest, it being understood and agreed that Tex-La's consultants and ottorneys may have obtained or developed information regarding Comanche Peak in the course of the Pending Litigation that arguably could be inequitable for them to otherwise uttllze in view of the consideration being rendered by TU Electric tereunder in order to obtain a final settlement of the matters referred to in this Agreement, Ter La covenants and agrees that 11 wth take all such action as may be necessary cr appropriate in order to prevent the consultants and attorneys, including lieron Durchette, Ruckert & Rothwell and llughes &
Luc e, employed by it in connection with, the Pending Litigation, from participa ting or assisting in any manner adverse to Tex-La's duty of co. aratico herein cc to TU Electric in connection with the Pending Litigation, the Pending flouston Sult, the Pending Somervell County Suit or any current ce future proceedings ce matter before the PUC cc ' the NRC involving or relating to Comanche Peak, or any current or future proceedings
,,~'~.___a
before any court or tefore any adtnirustrative agency or taJy or in any other forum whatsoever with respect to, or in any manner invohing, concerning, arising out of, or relating to (i) the acts er omissions of TU Electrie or the Project Manager referred to or in question in the Pending Litigation or which could have teen brought into question in the Pending Litigation; or (ii) the acts or omis,sions of TU Electric or the Project Manager with respect to Comanche
. Peak that occur, in winte or in part, prior to the Date of Commercial ,
A Operation (as said term is defined in the Joint Ownership Agreement). The covenant set forth in the prior sentence shall survive the Closing hereunder
and remain in force until the expiration of any Subject Claim covered thereby.
14othing contained in this Scction 9.2(d) shall be comtrued to prohibit said attorneys and consultants from representing Tex-La in connection with the matters dueribed in subparagraphs (1) through (5) of Section 9.2(<'). For the -
purposes of this paragraph, it is recognized ttat Tex-La can only encourage }
ard 'ollelt its consultants to take or refrain from taking certain actions ard does not have the right to prevent or cau::e such actions on their part.
9.3 TU E!cetric Release. Upon the Closing, TU Electric, for itself ard on behalf of its parent TUC, and their sutaldlaries and affiliates and on behalf of any person or g
entity, 'trivate or governmental, claiming by, through or under TU Electtle or TUC, including without limitation, to the extent it tas the standing and right under law to do so.
- their customers anl shareholders and their respective irsurers, ngents, servants.
employees, officers, directors, consultants, attorneys and representatives shall waive, release, discharge, renotmee and relinquish any ard all Subject Claims involving, concerning, accruing in, arising out of, or relating to the period of time prior to the Cloning whleh it has or they have claimirg by, ttrough or under TU Electric or TUC, or may - have. whether known or unknown, conttrgent or atnolute, luctuding, without limitation, those based on common law, whether contract (express or implied,-including 1
_ _ _ _ _ _ . . . _ _ . _ ___ _ _ _ ___ q l
Appheation of Citizens for f air Utility Regulation (CTUR) for interventJon and for resumption of ASLB hearings, the ongoirg antitrust review relative to the licensing of Comanche Peak, ard any and all appeals from rulings ard orders of the NRC related to, or growing out of, said Dockets or proect.dengs which are pending before any court. Within three (3) Business Days af ter the Closing. Tex-La shall cause the dLsmissal, with prejudice I
to the refiling of sarne in any forum and in any forn. whatsoever, of all of its Subject j Claims against TV Electrie, TUC ard their subsidiaries ard affiliates in the Pending Litigation, ano shall wittdraw all Subject Claims, if any, adverse to TU Electric in )
connection with the granting of the requisite licenses and approvals for Comanche Peak pending in the NRC Dockets Nos. 50-445-OL, 50-446-OL and 50-445-CPA ard any and
~~~,m. _
all proceedings in any manner related to, or arising out of, said NRC licensing proceedings.
Tex-La agrees ard covenants, from and after the Clonirrg, to fully cooperate with <
TU Electric and provide all reasonably requested assistance, including providity the legal amistance of its attorneys (including Heron, Durchette, Ruckert & Rothwell and Hughes &
Luce), in a timely manner in connection witr> any !cgal groceedings (excluding the Pending Litigation) involving Comanche Peak, including the lleensing of Comanche Peak by the NRC, including without limitation the ongoing antitrust review in connection therewith, and all proceedings involving Comanche Peak before the PUC to the extent of not opposing, or assisting any third party in opposing, the position being advocated by TU Electrie. Except as speelfica"y provided otherwise in this Agreement TU Electrie shall promptly reimburse Tex-La for any and all reasoc4 ele out-of-packet expenses and any and all reasonable outside profession! fees, including, without limitation, attorneys fees, incurred by Tex-La in groviding such cooperation.
9.8 TU Electrie Actions and Litigation Costs. Within ttree (3) *,usiness Days af ter
,the C losi ng, TU Electric shall cause the d!smissal, with grejudice to the refiling of same f:s :in any forum and in any form whatmever, of all of its Subject Claims against Tex-La in
-); , j ;
4 ,.
'- - , , . , - - - , , - ..,.,,..,...._,,.._.~,,..n__,_ _
1 l
customers oneh ding the customers of Tex-La's Members and other wholesale customers)-
and its or their respective msurers, agents, servants, employees, officers, directors, 6
ecnsultants Mtc,rneys aM representatives, cgrees and covenants to immediately abate
- any and all currently pending netions wha 3oever, directly or mdirectly, involving or relating to the prosceution or procewing of any Subject Claims in any way relating to Comanene Peak against TU Electric or TUC, or their respective directors, officers, employees, agents, insurers, consultants or attorneys, past or present, and any and all of :
their respective successors, sutsidiaries and affiliates and their respective insurers, l
\
agents, servants, employees, officers, directors, shareholders, consultants, attorneys ard L l
representatives, psst and present, pending in any court sr before any administrative agency or body (except Subject Claims being made in the Pending Litigation, whleh shall be governed by the provisform of Article IV of this Agreement). In such capacity and to the extent Tex-La can and not be in violation of Section 210 of the Enetgy Reorganization Act, 42 USC Section 5851 (1983) (Tex-La hereby representing and warranting trat it knows of no violation, actual cr alleged, of Section 210 of the Energy Rexganization Act, 42 USC Section 5851 (1983) which has not heretofore been disclosed to TU Electrie in writing), Tex-La a;;rves and covenant.s that Tex-La for itself and on behalf of any person e
or entity, private or governmental, claiming 'by, through or under , Tex-La, including
~~.__. .,
without limitation, to the extent it has the standing and right under law to 63 so, its .
Members and etatomers (including the customers of Tex-La's Members and other ,
wholesale customers) ard its or their respective-lruurers, agents, servants, employees, of ficers, directors, consultants, attorneys and representatives, shall not prosecute, directly or indirectly, any Subject Claims, objectiors, motions or other actiors adverse to 1
TU Electric in connection with applications for granting the requisite lleenses and approvals for Comanche Peak pending before the NRC and __Its _ Atomic _ Safety ard Licensing Boards (ASLB) and Atomic Safety and Licensing _ Appeal Boards, including, -
without limitation, in NRC Dockets Nos, 50-445-OL, 50-446-OL and 50-445-CPA, in the i
4
r, f,,,,.,.,,,,,,,. ,, , _ _ .
irdemiuly, hold harmless ard defeld TU Electric Tt'C and their restwetive suosidiaries, affiliates and customers from and against any and all Subject Claims of Tex-La or anyone related to a affiliated with Tex-La, including Tex-La's Members and, to the extent they are acting in such capacity, Tex-La's customers (including the ett,tomers of Tex-La's
\lembers and other wholesale customers) ard creditors, with respect to, or in any manner involving, concerning, arising out of, or relating to: (i) the acts or omissions of f i
TU Electric w the Project Manager referred to or in question in the Pending Litigation or which cotdd have been txought into question in the Pending Litigation, including without limitation Subject Claims based upon the negligence or gross negligence, sole, joint or concurrent, of TU Electric or the Project Marmget; and (ii) the acts or omissions of TU Electrie ex the Project Manager with respect to Comanche Peak that occur, in whole or in part, prior to the Date of Commercial Operation (as said term is defined in the Joint Ownership Agreement), Ireluding without limitation Subject Claims tased upon the rwgligence or gross negligence, sole, joint or concurrent, of TU Electric or the Project Manager. Purstant hereto, at the Closing Tex-La will execute and deliver to TU Electric the form of Indemnity Agreement attached hereto as Exhibit Q.
9.6 Covenant of cooperation. The parties twreby covenant and agree to assist, cooperate with, and support each other (other than financial wort) in the event that a -
thttd party imtitutes any actich agalmt either of them with respect to Comanche Peak and any incident or attribute thereof, except tint neither of them shall be required to take any position which it believes is contrary to its materlat pecuniary interests or contrary to the truth.
9.7 TermirmWon of Partleirmtion. To the extcat that Tex-La can, and rot be in
-violation of Section 210 of the Energy Reorgeaization Act,42 USC Section 5851 (1983), -. .
tpon the execution of this Agreement, Tex-La, for itself and on behalf of any person or entity, private or grvernmental, claiming by, throtgh or under Tex-La, including without 3,
limitation, to the extent it has the standing ard right under law to do so,its Members and
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ExilIUrr M COVEN ANT NOT TO SUE h
STATE Of TEXAS S COUNTY Of N ACOGv61(ES $
f or and in consider tion of the agreements, undertakings, promises, cnd covenants of TU Electric set forth in the A greem ent, including without limitation the j
contemporaneots delivery to Tex-La by TU Electrie of (1) the Release attached to the l
Agreement as Exhibit N, (2) the Covenant Not to Sue attached to the Agreement as Exhibit O, and (3) the Assumption and Indemnity Agreement attached to the Agreement as Exhibit P, the adequacy and suffleiency of such consideration being hereby acknowledged and confessed, Tex-La tereby agrees to the following:
1. Definitions. As used herein, the following terms have the followli g meanings:
I A. " Agreement" means that certain Agreement dated March 23,1989, by g and between Tex-La and TV Electric.
D. "Drazos" means Brazos Electric Power Cooperative,Inc.
C. " Comanche Peak" means the nuclear-fueled electric generating facility under construction on certain lands situated in Hood and Somervell Counties, Texas, and censisting of two units twr.ing a nominal capacity of 1,150 megawatts each, and related properties, and is the aggregate and comtination of the Station, Fuel, and Transmission F acilities, and all other rights and interests associated with or relating thereto.
D. "Puel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical foem, and the rights and interests related thereto.
E. " Joint Ownership Agreement" means trat certain instrument entitled on the cover page thereof " JOINT OWNERSHIP AGREEMENT DETWEEN DALLAS POWER &
LIGHT COMPANY, TEXAS ELECTRIC SERY!CE COMPANY, TEXAS POWER & LIGHT COMPANY, TEXAS LTTILITIES GENERATING COMPANY, TEXAS MUNICIPAL POWER AGENCY AND DRAZOS ELECrnlC POWER COOPERA'. s E, INC. FOR COMANCelE
)
e
,A.. - y-,.... -. .. v. ,y.- , - - . . _ ..--y- , . , , , y--. s_.y.--,
PEAK STEAM ELECTRIC STATION," executed on January 2,1979, together with and as modified by that certain imtrument entitled on 'he cover page thereof "Modificataon of
)
Joint OwnersNp Agreement Detween Dallas Power & Light Compny, Texat E!cetric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Munteipal Power Agency and Brazos Electric Power Coop +rative, Inc.: For ,
Comanche t'eak Steam Electric Station," exceuted on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on December 9, 1980, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company TMPA, Drazos, and Tex-La, togetcat with and as amended by 01) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company Texas Utilities Generating Compny, TMP A, Brazos, and Tex-La.
F. " Members" means the seven (7) Texas non-profit electrie cooperative I corporatiom that are members of Tex-La, as set out in Exhibit C to the Agreement.
G. " Owners" means collectively TU Electric, Brazos, TMP A and Tex-La, as owners of Comanche Peak in accordance with the terms of the Joint Ownership Agreement, or singularly any of sm:h parties.
11. "P ending Litiga tion" means Caune No. 399,336 -T e x-L a Electric Cooperative of Texas, Inc. v. Texas Utititles and Texas Utilities diectric Company, - in the District Court of Travis County, Texas,98th Judicial District; and Cause No. 86-6809-A - Texas Utilities Electric Company v. Tex-La Electric Cooperat:ve of Texas, Ing - in the District Court of Dallas County, Texas,14th Judicial District.
, 1. " Project Manager" means TU Electrie designated and acting as such in accordance (or purportedly in accordarae) w,ith the terms of the Joint Ownership-A greem ent.
}
2
-m __ _ - . . . _ _ _ _ . _ _ _ __ . _ _ _ _ _ . . . _ _ _ - - . . _ _ _ - . . _ _ _ . _ _ ___ . _ _ . _ .
J. " Site" means approximately 7.669 serec owned (in Ice or other estate or r I interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
K. " Station" means the Site, all improvements thereon (including Squaw Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) all pc:-sonal property thereon and associated therewith or related thereto and owned by the Owners, and (ii) all rights (tangible or intangible), and all ensements and other interests of any nature assoelated therewith or related thereto and owned by the Owners, excluding, !
however, the Fuel, and the Transmission Facilities.
L. ' subject Claims" means any and all claims, actiom, esntrover11es, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
M. ' Tex-La" means Tex-La Ele:4 ie Cooperative of Texas, Inc.
N. '7MP A" means Texas Municipal Power Agency.
e O. ' Transmission f acilities" mc ar.s the Comanche Peak Cleburne Junction and Cleburne Junction-Everman 345 kV clectrical transmission lines, aggregating approximately $1.5 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
P. 'TUU" muns Texas Utilities Company, whf eh is a Texas corporation and F
the parent of TU Electric.
Q. 'TU Electric" means Texas Utilities Electric Company, which is a Texas corporation.
11 . Covenant Not to Sue and Agreement Not to Challcoge.
(a) Except as trovided for in Section 4.2(f) of the Agreement, Tex-La, for itself and on behalf of any person or entity, private or governmental, claiming by, _
through oc under Tex-La, including wittout limitation, to the extent it has the standng and right under law to do so, its Members and customers (includng 1
-3
-, . - - . -- _. . - _ - _ _ - _ . - - _ - ~ . _ . . - .- . _ .. . - _ - _ _ . - .
e the customers of Tex-La's Members and other wrolesale customers) and it.s or their respective imurers, agents, servants, employees, officers, crectors, comidtants, attorneys and representatives does hereby agree and covenant that it and they, indmdually, collectively or in any ecmbination, will forebear from asserting against, and never sue for or look for satisf action with respect to. TU Electric and TUC and their respective insurers, agents, servants, employees, of ficers, dir ectors, share tolders, consultants, attorneys and representatives, past and present, and any and all of their respeettve successors, sutnidiaries and affiliates and their respective insurers, agents, servants, employees, offleers, dreetors, shareholders, consultants, attorneys and representatives, past and present, any Subject Claim (includng without limitation any Subject Claim against any contractor, subcontractor, supptjer, comultant, ven63r or other person, firm or entity in privity in any mannee with any of them which may therefor w as a result thereof have a right over or Subject Claim in subrogation) in any manner involving, concerning, arising out of, or relating to, the planning, design, construction and licensing of Comanche Peak and the managert eat of such planning, design, corotruction or licensing, or any other matter relating to the planning, design, comtruction or licensing of Comanehe Jeak, and the m anagem ent, procurem ent, conversion, enrichment, fabeleation, shipping, transportation and storage of' the Fuel, which it ins cx they have ejajming by, tirough or mder Tex-La, or may have, w het her known ar unknown, contingent or atmolute, including, without limitation, those based on common law, whether cortract (erpress or implied, includng express or implied warranty) or tort (includng, wittout limitation, intentional tort, negligence er groas negligence, sole, joint or concurrent) or strict liabidty oc fratd, and those based upon any Federal, state or local statute, law, order or regulation, including, without limitation, the Atomie g
- . . . - - _ _ . - - - - . . = - - - - - . - - _ . - - . - - - -
i i
Energy Act of 1954, as amended, the regulations of the N RC, the Securities
securitiest ca^ase ^etati$34 meadeo-O ^eto'i'33 meadeo and any rule or regulation mder either, the Texas Securities Act (Title 19, Articles $81-1, et seq., V.A.T.S.) and the Texas Deceptive Trade Practlees and ;
Ccmumer Protection Act, against TU Electric or TUC, or toth, in any enpacity, whether indvidually, as Project Manager of Comanche Peak or otherwise, and their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, and any and all of their respective successors, sutsidiaries and affiliates and their respective insurers, agents, servar.ts, employees, officers, directors, shareholders, cornultAnts, attorneys and reprtsentatlVes, past and ,
present.
(b) Except as provided in Section 4.2tt) of the Agreement, Tex-La, for itself and on behalf of any person or entity, private or governmental, claiming by, O in,ougn . unde, Tex-ta, ineiuen, .itssut iimitation, to the emnt ii ha, the standing and right under law to do so, its Members end customers (including .
the customers of Tex-La's Members and p.ther wielesale etatomees) and its or their respective insurers, agents, servants, employees, officers, directors, ,
comultants, attorneys and representatives hereby further agrees and covenants that rielther it nor they claiming by, through or under Tex-La, indvidually, collectively or in any combination, will drectly or indirectly, oppose, challenge, contest or assert any complaint in any court or before any administrative agency or body or in any other forum whatsoever with respect to, or in any manner involving, concerning, arising out of, or relating to, Comanche Pealt and the incidents and attributes thereof including, without limitation, the planning, design, corstructiet und licensing of Comanche Peak and the management'of such plannitt datign, construction or licensing or any ls l .$.
E a -en -,,.-~ ~, -pr ,,w -m- . , , . . ~ , r-+ -- , - -~<e- - , , , . , ,,
_ _ _ _ _ _ _ .. _ _ _ _ ~ _. _ __ - - _ _ _ _ _ . . _ _ _ . _ _ _ _ _ . _ _ .
s j
other aspect of such planning, design, construction or licensird, the costs and schedule of construction and completion of Comanche Peak, and the ;
h l
rea*onableness, prudency or efficiency of the p'anning, design, comtruction and lleensing of Comanche Peak and the management of such planning, design, construction or lleensing, and the rea!7nableness, prudency or efficiency of the management, procurement, conversion, enrichment, fabrication, shipping, transportation and storage of the Fuel, and the costs incurred in connection with the management, procurement, conversion, enrichment, fabrication, shipping, transportation and storege of the Fuel, and the breach of the Joint Ownerstdp Agreement and any express or implied warrantles arising out of the ,
J oint Ownership Agreement, and any representation, misrepresentation, disclosure or non-disclosure in connection with the negotiatfore ce preceding .
t:,e execution tr/ Tex-La of the Joint Ownership Agreement, and in connection with the perf orm ance or nonperformance by TU Electric of its duties, I responsibilities or obilgations under the Joint Ownership Agreement as Project Manager or otherwise, e.nd the f ailure of TU Electric to pursue any remedier, either at law or otherwise, that may be, or may have teen, available against any and all contractors, subcontractors, suppliers, consultants, vendors or others with re:spect to Comanche Peak (including separately the Station, Fuel or TransmlWon Pac!11 ties) and on account of anything that has occurred or may have occurred, in whole oc tri part, with respect to Comanche Peak, (includng separately the Station, 'Puel or Transmisdon Paellities) and the incidents and attributes thereof and any of the foregoing whether known or unknown. Notwithstandng any o'.her provisions of the Agreement, nothing therein shall limit Tex-La's right to defend the prudency of its participation in Comanche Peek or the settlement of the Pendng L!tigatinn before any court ,
or regulatory agency, provided, however, since TU Electric by the Agreement 9
. - . . _ . . . .-%._, , , _ , . , , _ . . , _ __ , , , . . . . . . . . . , , , . , _ , . . ,,,,,;,_,- , _ , . _ _ a,.._,_,.,.._ ..,_ ,_.- __. ~, m , , . . ~ 7.
1' f
a is reimtursing Tex-La for its attorneys' fees and other litigation costs related to the Pending Litigation, in no event shall Tex-La use any information l
)
i obtained by it or its attorneys, through e.scovery in the Pending Litigation in any manner adverse to TU Electric and in no event shall Tex-La contend, plead, assert, or claim in any proceeding that TU Electric or the Project Manager under the Joint Ownership Agreement acted imprudently or that any costs associated with the planning, design, comtruction and licensing of i i
Comanche Peak and the management of such planning, design, construction or !
i licensing viere imprudently incurred, provided lowever, this sentence shn11 not prohibit Tex-La from furnishing f actual information in respome to a specific discovery request and shall not require any representative of Tex-La to violate any obligation to tell the truth under oath in respome to a specific request t heref or, !
(c) Notwithstandbg anything contained in paragraphs (a) or (b) hereof or in the q i
Agreement, Tex-La specifically does not covenant not to sue, and specifically j E
&cs rot agree to not assert, challenge or contest, wito regard to:
I-(1) Subject Claims arising out of or under the Agreement or any of the other agreements or instruments to be delivered pursuant thereto; (2) Subject Claims which could not have been trought in the Pending W
Litigation and which accrue on or af ter the Date of Commeretal '
Operation (as that term is defined in the J oint O wnership Agreen ent) and which are bued upon the acts cr omissiom of 1 TU E!ectric or the Project Manager other than in connection with j
the planning, design, construction and licensing of Comanche Peak L and the management cf such planning, design, comtruction and ,
11cerdng; l l
(3) any defenses which Tex-La hu or may have to Subject Claims h asserted agalmt Tex-La by any persons or parties whomsoever, provided that Tex-La may not seek any type of affirmative relief k hereunder against TU Electrie, TUC, or both, their successors, subsidiaries and affiliates, or its or their respective imurers, u d
agents, servants, employees, offleers, directors, shareholders, d consultants, attceneys and representstives; 1 any counterclaims which Tex-La tas cr may have agalmt any party I
(4) other than TU Electrie, TUC, cr both, or their successors, 1
L I
1 "e
t
l 1
setsidiaries and affiliates, or its or their respeciive insurers, l agents, servants, employees, officert, drectors, shareholders, ;
O masuitaats, attorners a.,o ree eseatativee. actine ia suen canacitv.
with respect to any Subject Claims being asserted against Tex-La by anyone other than TU Electrie, TUC, or both, or their successors, subsidiaries and affiliates, or its or their respective insur ers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives; or (5) any proceeding in which TU Electrivs rates are being determined, f provided that Tex-La shall not oppose, or assist any tided party opposi'Jon to, the inclusion in TU Electrids rates of any and all costs related to Comanche Peak, i
EXECUTED this the day of ,1989, as duly authorized by an apprvpriate resolution of its Board of Directors. !
TEM-LA ELECrk!C COOPERATIVE OF TE XAS, INC.
(Corporate Seal) By:
h ATTEST: Its:
or:
Its:
0
-1 l
(
o-m t d9 N f, Odd
!rm, t(-bk cf G)
STRICTLY COtiPIDDITI AL UllITED STATES OF AMERICA BEFORE TdE U.S. DEPARTMENT OP LABOR L
5 JOSEPH MACKTA1,
)
)
)
Complainant, )
) Case llo. 86-ERA-23
v. )
DROWil & ROOT, INC.,
)
Responden* )
m
' ' )
~
SETTLEMEllT AGRED4E!!T WHEREAS Mr. Macktal's employment with Brown & Root, Inc.
(" Brown & Root") terminated on Ianuary 2, 1986; b'dEREAS Mr. Macktal has instituted the above-captioned action against Brown & Root before the United States Department of Labor alleging that his termination violated Section 210 of the Energy Reorgani::ation Act of 1974, 42 U.S.C. S 5851
("Section 210");
i UHEREAS the dispute between Mr. Macktal and Brown & Root r
,'b hat been amicably resolved and Mr. Macktal now desires to with-draw his complaint against Brown & Root, without admission of liability by Brown & Root, Texas Utilities Company and/or the _
other owners of Con.anche Peak Jteam Electric Station (ggphe r ela tRAbE __ OF Peak"), or the SAFETEAM program, or the attorneys, 0 1970
.P-- - - ._. -_ _ _ -_ _ __ _ _ _ _
(
STRICTLY CONFIDENTIAL ccmpanies, successors, assigns, office-s, directos , anagers, agents, and employees of the aforementioned compat organi-3 ations'and programs (all of which entities and individuals are I hereinafter collectively referred to as "the Comanche Peak I companies, organizations, programs and individuals");
l 1:OW , THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows:
1) This Settlement Agreement does not amount to, and chall not be construed as, an admission of liability or wrongdoing on the.part of any of the Comanche Peak companies, organica-tions, programs or individuals as defined above. Moreover, this Settlement Agreement does not amount to, and shall not be construed as, an admission by Mr. Macktal concerning the merits.cf this, action. '
2) Mr. Macktal shall execute a general releasa (attacned hereto as Exhibit A) of all the Comanche Peak companies, organizations, programs and individuals as defined above frem any and all liability arising out of or relating to Mr. Macktal's employment with Brown & Root, the termination of his employment on January 2, 1986, or his resignation from his position with Brown & Root.
3) Mr. Macktal's representatives in the above-captioned action, Mr. Anthony Z. Roism n and Ms. Billie P. Garde (including Trial Lawyers for Public Justice and the Govern-I t
0 1271 1
- - - -.- . . _ - - . . . . - - . - ~ . - . . . - - . -
I
( ..
STRICTLY CO!!FIDD4TIAL ment Accountability Project, the organizations of which Mr.
Roismat and Ms. Garde, respectively, are a part and through which' they came to represent Mr. Macktal,, hereby agree that they will r- call Mr. Macktal as a 91tness or join Mr. Macktal as a party in any administrative or judicial proceeding in which either Mr, Roisman, Ms. Garde, Trial Lawyers for Public Justice or the Government Accountability Project, or any combination of them are now, or in the future may be, counsel or parties opposing any of ti Comanche Peak companies, organizations, programs or indi-viduals as defined above; nor will Mr. Roisman, Ms. Garde or their respective organizations do anything to suggest or otherwise to induce any other attorney, party, administra-tive agency, or administrative or judicial tribunal to call Mr. Macktal as a witness or to join Mr. Macktal as a party in such a proceeding. Further, Mr. Macktal hereby agrees that he will not volu.ntarily appear as a' witness or a party in any such proceeding; and Mr. Macktal further agrees that if served with compulsory process seeking-to compel his appearance or joiader in such a proceeding, _he will immediately notify the-undersigned representative of Brown
& Root, or his-successor,.in writing and thereafter take all reasonable steps, including any such-reasonable steps as may be suggested by the representatives of Brown & Root, L
to resist such compulsory process.
L
'O _1- 9.7 ~0 6 , , , , , - , - . , - , . , . -
i SFTTLEMEt1T AGREEME!1T
'4
?.pl 1988 is This SET.LEME!4T AGREEME!?T dated as of Hoy _,
"Polizzi"),
by and _ between LOREllZO MARIO POLIZZI (hereinaf his minorter his wif e and !!ATALIE POLIZZI, MAURI!IE ELLE!I POLIZZI, d legal daughter, by Maurine Ellen Polizzi, her mother an I!1C .
and GIBBS L HILL, guardian (hereinafter "Co-Plaintiffs")
(hereinaf ter "Gibbs & Hill") .
WHEREAS:
1987, Polizzi filed a A.
On or about May 12, Depa rtment of Labor, Employment complaint with the U.S. alleging that Standards Administration Wage L Hour Division, t practices in Gibbs & Hill engaged in discriminatory employmen Act, 42 U.S.C. S S85.
violation of the Energy Reorganization the ' DOL Proceeding").
(hereinafter
- (Case No. 87-ERA-38)
D.
The U.S. Department of Labor, Employment L Hour Division conducted an Standards Administration Wage based upon said investigation, investigation and concluded, to believe that Polizzi was that there was probable cause in violation of the Energy Reorganization discriminated against Act. for a hearing filed a timely request C. Gibbs & Hill d United States with the Chief Administrative Law Ju ge, Cf} Q Hd 'l- It01188 -
03M3338 S1V3ddV 'HlWOV 30 33UJO tf08v'l 301H3W1W430 Tn EXHIBIT .
PAGE -- UF
. . _ - . _ _ - _ . _ _ _ . , _ ~ . _ . _ _ _ _ _ _ _ _ . . _ . . _ _ . - _ _ .
a a minor, as set
's '
settlement of the: claims of Natalie polizzil forth herein.
7.
polizzi agrees that he will not voluntarily individual cooperate with or testify on-_ behalf of any! entity orfl who has or may file charges of discrimination or wrong u Hill or_TUGCO, or their
-employment pcactices against Gibbs &
affiliates, subsidiaries, successors or respective parents, the Atomic Energy ,
assigns, under theLEnergy Reorganization _Act, Act of 1954, as, amended, or any other. federal or state law, nor will-he voluntarily testify in rule, regulation cr theory, or investigation s
or otherwise participate in any_proceedin befare any involving the Comanche peak Steam Electric Station,- including, but or administrative agency, state or federal court licensing or safety proceedings or not limited to, d/or e investigations before the; Nuclear Regulatory Commission an i 'before the-regulatory or rate proceedings or investigat ons t-as public Utility Commission of the State of Texas, that excepnothing in d however, required by_ lawful subpoena; provide , i t rpreted to -
the foregoing paragraph shall in any manner be. n e the. Nuclear Regulatory _
prevent polizzi from informing relating ,
safety concerns he may have Commission of-any and all to the Comanche peak Steam Electric Station, ll 8.
-Gibbs & Hill's -personnel policy applicable to a and former,-provides that-it sha.11' release employees, present ithout a-no information requested by- a prospective employer w
-- - - , .3-l
l
~
15. Gibbs & Hill shall undertake to obtain the in substantially the execution by TUl20 of a General Release Said General Release shall form attached hereto as Exhibit C. (a) the conditions set not be deemed effective unless and until d (b) the forth in paragraphs 5 and 6 herein are fulfilled an in and Co-Plaintiffs referred to General Release of Polizzi paragraph 13 herein is delivered to TUGCO.
the part.ics have hereunto set 111 WIT 11ESS WHEREOF, 2$ d_ day of M Ya 988.
their hands and seals on this [
s#A %'x LORENZO MARIO POLIZZI
~'
0 $A 0 MAURINE ELLEN POLIZZI # '
4
$Al/1 Df hL 0 a iniho r , (b/
' N ATALIE POLIZZI , her I
Maurine Ellen Polizzi, mother and legal guardian GIBDS & HILL, INC.
1
! s c p:gBy 1-4
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' AGES 6
-i DISCUSSE5 IN5F REPTS 50-445-92-20 & 5 0 - 4 4 6 -- 9 f: - L' o O N 920515-19 3 9P062? ENFORCEMENT C O N F F R t- N C E RF 92051 LOSS OF CPENT
.2
.3- FUEL POOL COOLING 4 FORunRDS NOTICC OF VIOLAil0N A PROPOSEL 4' I t1P O S I T I ON OF CIVIL PENALTY IN AMOUNT OF 1125 000
-ICHE 62006 095-62500 108 ML: ADCCK-5000445-0-920723 oACKAGE; 920723-9207d90070+
~ ~ ~ ~ " " ' ~ ~ ~ ' ~ ^
-b 6 Nt/ I DS 6 ~PENALT2@@~ ~ ~ N n wtrvv v 40/4126065 CNi 9208130227 A1E: 920807 AGES: 2 1: NOTICE OF VIOLATION FROM ItJSP ON 920622-P.5. VIOL / fl0N NOTED:
2: SIX LOAD CELLS IN USE NOT INCORPORATED INTO MEASURING & TEST 3? EQUIPMENT PROGRAM & RECORDS OF OPERATIONAL VIBRATION TESTS 4: NOT SUBMITTED TO METEOROLOGY LAB.
ICHE: (2792:155-62792: 156 FL: A00CK-5000445-0-920807 - .
AC% ACE: 920307-920S130221A 40/4619tt66 CN: 9209190097 WiE. 920312 AGE 5 1 1 tJ0TICE Of VIOLATION FROM INEP OH 920607-0718. VIOLATION 1- fJOTLD ONE rORM UAS fl0T INITIATCD WHEri MDAFUP 1-01 INBOARD 1 PUMP E;EAH1NG PACKING EXTRUDED F0lLOUING AUTOMATIC AFS 4: ACTUATION 1CHE- 62803 ~<09-62803:309 FL* ADOCh-E00044E-0-920012
^ACKAGE- 920812-?208190092A 40/5153#67 iCN: 9208200241
' ATE 920013 AGES: 31
.1 - RESPONDS TO NRC 920723 LTR RE VIOLAi!Ot41 fiOTED !!J INSP REPTS
.2: 50-495-91-14 3 50-446-92-1-1 a FORWARDS PA'/ MENT OF CIVIL 3 P E N Al . T i IN AMOUNT OF S125 000.CORRFCTlVE ACTIONS CROSSTIES 4: VERIFIED IN ISOLATION POSITION a CCU FLOW REESTABLISHED.
!CHE- 62951' 31 6 2 8 C 1 344
~FL ADOCK-5000145-0-920313
>ACKAGE: 920013-9208200241 ,
r40/5229#68 LCH , 9208210068 VI E . 920317
' AGES: 2 1 tJ0 T13 0F VIOLATION FROM INSP ON 920727-31. VIOLATION f40TED.
- INSPEC10RS DISMVEPED ON 920728 T. HAT SHARED CONTROL ROOM-
.3 : VITAL AREA COULD BE ACCESSCD IN MANNER THAT DYPASSED LOCKED 4: 3 ALARMED 000RS.
ICHE: 62833: 114-62833: 115 ADOCK-5000445-0-920817
)FL "ACKAGE. 920817-9208210053A
- - - - - , , a ,- m-, .e y.-a-- n e-- n ---m.-s-m,, ,,g- . w-
~ ~ ~
46 NV1b5 & PENALT5ES LU:9f>J Y Y E rvif 7 i
41/642069 CN! 9209020157 l ATE: 920027 AGES: 2 1
tJ0TICE OF VIOLATION FROM INSP ON 920614-0801,V10LAT10N 2: NOTED:!NSTRUMENT AIR SYS VALVE & SWITCH LINEUP STILL 3r INCOMPLETE WHEN PERFORMED BUT REVIEWED 8 SIGNED AS COMPLETE 4: & PLACED IN SYS STATUS FILE l ICHE. 62922:079-62922:080 FL: ADOCK-5000445-0-920827 ACKAGE. 920827-9209020147A 41/2178470
=CN' 9209110254 ATE 920910 ACE!. 1 1 ACV RECEIP1 OF ')20813 LTR 5 CHECV FOR 2125 000 [N P AYMEtJT 29 OF civil PENALTf PROPOSED !)Y NRC IN 920723LTR.
ICHE: 63129 341-63129 341 FL: ADOCK-5000445-0-920910 ACKAGE- 920910-9209110254 41/3672#71 CN 9209220199
> ATE 920916
' AGES. 2 1 tJOT ICE OF VIOLATION FROM INSP ON 920817-20. VIOLATION tiOTED:
.2 : PROGRAtt REQUIREMENTS FOR ADMINISTRATIVE CONTROL OF TEST
.3: PROCF.DUR ' & ST ARTUP OPER A11tJG INSTRUCTIONS NOT IMPLEMENTED.
'ICHE 63186 229-63186:230
'FL: AOOCK-E000445-0-920916
' ACK AGE - 920916-9E09220t69A l
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857-9817 January 30, 1985
,,,....... . . ~... m ,
Dr. Kenneth A. !!cCollom Peter B. Bloch, Esq. Dean, Division of Engineer:nc, Chairman, Atomic Safet/ and Architecture I, Technolog*j Licensing Board Oklahoma State Universit/
U.S. !!uclear Regulatcry Stillwater, Oklahoma 74074 Commission Washington, D.C. 20555 Dr. Walter H. Jordan Eli:abeth B. Johnson 881 West Outer Drive Oak Ridge !!ational Laboratory Oak Ridge, Tennessee 37830 Post Office Box X, Bldg. 3500 Oak Ridge, Tennessee 37830 Subj: Texas Utilities Electric Company, ~ Stat et al.
(Comanche Peak Steam Electrei~c. m ! Tot,t Units 1 and 2) Cocket Moh . 50-4 4 5 and 50-446 1 _. % p/
Gentlemen:
the Board of devolcy-
.stindful of our oblication'to appriseincluding estimated 9 ments a/hich bear on matters before this will advise the Board schedules for cc mercial operation,that it review considered t
Applicants several factors, recently comp That construction program. status of licensing for Comanche Peak, including the present that Unit 1 l Based upon this review, Applicants now estimate l
of Comanche Peak will probably not be placed in commercial operation 'mfore early 1986.
A copy of the Form 8-K recently filed by Applicants for with the Securities and Exchange Commission is attached further i
your inf ormat ion. It willprovicethe[90a-dwith details. 9-Sinc I ly EXHIBIT ..
/ /
htt,.s RAGE - ,OF
( -
lichop for S. \Reynolds Couns r Applicanth .
cc- Service List ,
Herbert Grossman, Esq.
l 85020104G2 050130 .
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- {P@R A. DOCK 05000445
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............ .......... March 21,198)
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Peter B. Bloch, Chairman Dr. Walter H. Jordan Administrative Judge Administrative Judge Atomic Safety and Licensing Board '331 W. Outer Drive U.S. Nuclear Regulatory Commissien Oak Ridge, Tennessee 37330 Washington, D.C. 20555 Dr. Kenneth A. McCollom Administrative Judge Herbert Grossman, Alternate Chairman Dean, Division of Engineering, Administrative Judge Architecture and Technology Atomic Safety and L! censing Board Cklahoma State University U.S. Nuclear Regulatory Commission Stillwater, Oklahoma 74073 Washingten, D.C.
Ms. Ell:abeth B. Johnscn Administrative Judge Oak Ridge National Laboratcry-P. O. Box X, Building 3500 Cak Ridge, Tennessee 37830 Ret Docket Nos. 50 445-1 and 50 446-1; 30 445-2 and 30 446-2 In the Matter of Texas Utilities Generating Co., et al
Dear Administrative Judges:
The following information is provided in an effert to comolv with the Board's
~~
~
rqJest that Beard members be kept _ Electric timely informed5tation. of Nomatters attemptrelating is madetoby the
.lleensing of the Comanche Peak Stear.this letter to introduce evicence in any pha l.- On Thursday morning, February 7, 1985,- the NRC Staff and CASE representatives met in Arlington, Texas to discuss technical- Issues raised by CASE before these Boards which CASE felt should be
I I To the extent that such may later be appropriate, formal request .4HIBlwg be made at such time. PAGE DE B503260602 850321 PDR ADOCK 05000445
( O PDR ,
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. ,j t UNITED ST.M .25 U NUCLEAR REGULATORY COMWdS In the !!atter o f: 17 , et a1.} Case !!o . 50-445-CL TPXA0 UT!!. TIES ELECTRIC CC:'.P ))A %-445-OL
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25,137 through 2 5,2 ? 5 Pages: EXHliilT .. f Dallas, Texas P. AGE . op Place:
Date:
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"'t Ut11TED STATEC OF AMERICA
3) 11UCLEAR REGULATORY AGE!!CY a
SEIVRE T!!E ATOMIC ShPETY A!!D LICUl!SI!!G DO 5 ..- -
- .-x 0
Case tio . 50-445-OL <
i lIn the Matter of : tio . 50-446-OL 7
TEXAS UTILITIES ELECTRIC
tio . 50-445-CPA l 0
COMPNrt , et als f 9
I(Comanche Peak Steam Electric f :
to Station, Units 1 and 2) i is 1
.-...x 000 Skyway Tower 12 j Southland Bu ilding 13 y
400 !! orth Olive
' .- ,_ 14 t . f Dallas, Texas s
15 Wednesday, July 13, 1988 ]
i to / ing i
' 17 h '
The above-entitled matter cano.on for a prehear '
to tiotice, at 9:10 a.m.
18 conference, pursuant 19 i j BEEVRE :
Administrative J udge 20 PETOR B. DLOCll, Board Memoor DR. WA' ,TER H . JORDA:1, 22 McCOLLOM, _ Board Member DR. KEttliETH A.
23 l 24
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1 J APPEAPJulCES :
( .
on behalf of the Applicanto s 2
GEORGE EDGAR, Attorney at Law a
Attorney at Lav i MAURICE AXELPAD, ;
4l ,
i 11ewman I.
!!olt sing e r , P.C. .i 3 l
11. W . , suite 1000 1615 L Street, c.
WaShiD9 ton, D. C. 20036 7
and 8
ROBERT A. WOOLDRIDGE, Attorney at Law 9 t. Wooldridge _
Worcham, Forsythe, Sampics I to - l Suite 2500, 2001 Bryan Tower i3 Dallao, Texas 75201 W.,
12 13 On behalf of the 11RC staf f: % ,.-
J/d(ICE E. MOORE, Attorney at Law in 15 Office of-Internal Counsel U .S. tiuclear Regulatory Corr. mission 16 k Washington, D. C.
20555 17 ' )i i to O!1 behalf of CASEt ,
/ JUld3ITA ELLIS, President is BILLIE GARDE, Attorney at Law 20 Citizens Association for Sound Energy 21 {
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22 l 1426 South Polk Dallas, Texas .75224 23 and 24 I * .
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1 3 lj IJPEAF>riCEsi (Continued]
'. e f
On behalf of CASE I
: 'l I ROISMAll, Attorney at Law '
f ANTilottY 0 !
3
t. 11aun f e ld l Cohen, Hilstein f 4i :1.W . , suite 600 1401 !!cw York Avenue, l D. C. 20005 0
Washington, c
and 7 l' t,
J ACK DOYLE 3 ll 3i 61 Circui Avenue, Wont 01603 worcester, sa3aacnusetta m ll -
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P R O C E E D ! !! G j i
' '". t Good norning . I am Peter i.
JUDGE BLOCHs '
2(
Chairman of the Atomic Safoty and Licensing 3l Bloch, There are j-i' 4 Board for Comancho Peak !1uclear d.
Power Plant. ,
5 two dockato with which we are concernehere, I f for everyone With deep respect '
i 6 these 7
respectfully and wholeheartedly welcome you to i e proceedings. an operating
)
The dockets involved include d nt 9j l license application and a construction permit amen me to !
thone dochet.a are l proceeding.
The formal numbers of 11 50-445-OL, 50-446-OL and 50-445-CPA.
12 The Atcmic Safety and Licensing Board ,
13 On my left, Dr. Kenneth 14 consists of three members. and my right, in a member of the Board; v.< McCollom who j 15 l '
10 ' Dr. Walter Jordan.
I'd appreciate it i f t.h e parties would 17 ' si.arting at i
for the record, please, I 13 identi f y themne ' ves my left.
is p i
is Janice E.
I MS. MOORE: _ Your Hor.or , my name to To my right in Mr.
21. : Moore, counsel for NBC Staff.
l- a paralegal from the NRC Office of 22
! Michael Harrison, 23 .Goneral Councel. microphonen when Please une the .l JUDGE BLOCH:
24 'l ' t 25 you talk. '
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Mr.
l Before you proceed, JUDGE DLOC11: "
1 't"# ,
you handed a otatement to th" f"P Roirman, the 3
2 l
And I van gust going to ask Mn. noISMAll:
3 W 1 it iM1d' 4
BQard's permission to W e .f record. It is a letter which CAsc submitted to the i ,
i I
L sets out in far greater c
Board this morning, which I vill be making hero, 7
detail the points that ,
it be bound in with the I would ask that i i 0 of this record today, l it will bo a part record so that I can do that, but I have some 9 I ,
~
JUDGE BLCCll:
to that is !lt
/ language in it 11 concern because thoro's ;
the roic of the intervenors.
12 emotional language about into the l
f i
unf air to bind that i
, n.
13 It seems to me scmewhat to respond.
giving them a chance f
s.
record without l 14 .
the. substance 4
'C \ If you were able to surnmarize 15 } charges in the way they 16 fofthat, without putting the 17f) arc, I would' prefer that. We can do that, Mr.
okay.
MR. ROISMA11: longer.
is b
I It may take me a couple of minuten Chairman. to 19
/
think it's important First of all, I 20 l Ellis' name has become
' un de r s t an d - be caus e Mr s .
21 that this is a almoat synonymous with CASC -
9 22 SE, and Mrs.
proceeding whi.ch has boon pursued by CA 2'l on Ellis, like Billio Gardo and myself, have spoken da .
24 an organization with a membership an t 25 behalf of CASE,
')
. 1; f
I. ,
"W WdM-w-g 4.g . _ _ ...-. - ""+F*tMdy7
.i I
o i
1 25256 ,
1 h
txi ild s 1
'in the nation, *o see to it that Texas Utilities
~.
2 b
a plant that is safe.
There is not a
.D Let me say something on this. i 3f have ever met, :
4fJ single person at Texao Utilities who I i '
I c ros n - e x afni ned , who han over and many who I have 5 t that this company I 6 . indicated to me or demonstrated to me has an intercat in building 7n unsafe plant. 4 7
as to what There' n a genaine disagreement 8
nobody there..they have ,
9 that saf ety' requires . There's i t
to li nothing to gain, and if you thougnt they did, take a l what has hap"ened to general public utilities t Si llock at ,
i I
0 and operated an unsafe plant and have
[l who tu iltgone into bankruptcy as a recult of it, 12'casentially '
13 ;
of course.
14 That's the Three Mile . Island plant,
'4 there's no self-serving t
15 There's no interest, i plant. What 16 , interest in this company tu11 ding that
}
i for ten years is.to cay, by banging on
'7]CASChas'done ffer you that will to ] the door, "We have something to o thin plant safe."
19 help you make
/
said in this 20 And what Texas Utilitien has '
You do, md we want to open 21 agreement, "You know what?
in so that we can hear you .,
22 ., our door and bring you f 23 i
better without the noise factor of the litigation 24 process." d myself-have ,
Now, Juanits, Billie Gard.
25 4
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a----.
w ., , ,,
. ~ "'*me9em,,,,_ '"'W'T'-e- y w, ""W~r=m-nw
m - - - - - _ _ _ ' '"--+-% _ . _ - _ . _ _, _
I e
, ,J 2 s .I w
!> :e ay, and e v o t' y t
, pent 4.terally hourn each t
1, talk;nq to
_s wan *nade public en July 20this .greement were up n
il many of .hoao spokeapersona 3qciti',en groups, only the Joint u
4llher3 tcday, to explain to them not i
of the settlement 5 Stipulation, but the broa l outline doubt, au everyene d them beyond any Ci}igreement, to aanure I il if the Board 6pproves in a few m..nutes 7hhere will know 15 this disninsal, and the stttlement agreement ei
- in prchibitea frcm J
released, that no onc -- no one d
10 h, s pe ak ing ou t .
from raining his Il No worker is prohibited n l!
l} 1e seeks.
The only thing the 1: y< c o nc e r n: in any form that n r e le ase is th e i r liability h
13 g workers are being asked to for their allegation that 14 i l}citics,sgainst the ccmpany Ij
d. -
i 15 } they we::e wrong f ully dischar go !
I!s We've re ad the re levant portion of the -
1c Il1 to each of these worker; to :
p that han gone i' 17 p pro pos a l d An f. it saya ;- in anybody who would listen to it.
1 la P.
19 y cry st al clear language .
a that were rained this 20 L 4 All the concert d
r t'r. a t were not
t morning, that allegedly the great secrets 22 r e le a s cc i , Juanita, Billie and nycelf have explained at
- to all ay the fears 23 great langth -- at great length there is no cile nce 24 of the public and any person that and that there is no gag .
05 associated with this agreement
\~
Ne l
I t
- -- ~- --"- - --- _ ___ _m _ ^ - - - " - - ~ _ _ _ _ _ _---- - - - - a
I i i N
9 ~! <
3 v
252S8 it il n
order placed on anyone.
s ia
[ have beun willing to sign I 11or would anyone 2 ll H'
3j ouch an agreement, and I must say i il what Juanita C111a has done -- ,
4y f fighting this 51 p
to me it's a stunner -- ten yearn - o forums --
/
6; plant has produced what ve, have heard she's in someout selling l J
!i not here today -- the suggestion that 7] being involved li 8y by agreeing to cpend five more years i with this plant, 9 .
IL .
!i Even for a woman as young ao Juanita, i to p single pro 3ect is a- I nj years of her lif o devoted to a j l
s2 {;
aubstantial piece of time.- innuendo-j some
[ There has been in the press and r 13h !
in the pleadinga before this Boe.rd that silence and u]h 1
tiot only i'u that a grono
-( ,
5 l:! money were being exchanged.
l misrepresentation of what is clear in the document 1 10 Juanita and Billie I 17 i ;
itself, clear in the statements that mean those i-O and.I have made, clear in what anybody -- I to ho have of .you who know some of thece whistic blcworn w iu liatley or any ' of the
! 9 I' I,
20ll ever seen Chuck Atchison or Dob at thic p
f-people who are involved as shistic bloweru is the 21 thing on their mind, 22 plant, silence is the last ' .l last thing that they would ever. bargain-for. ..
l l
23 articulate people you will' I 24 These are the most ,
They are not silent.
25 I: l - ever meet.
i
, a l
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N= ?
I
- _ . _ _ _ . _ _ _ _ _ _ _ _ _ . _ . _ . _ . . - _ _ _ . . _ _ _ _ . _ _ _ ~ . . . . _ _ . _ . _ _ _ . _ _ _ _ . . . . _
\ )
o\
l 25259 r
idea come up? Because two young I
Why did that I
', i hdrawn their ;
2 inexperienced lawyers who have now w t representations stirred it up.
I'd rather not have this have to do -
3 4 JUDGE DLOCll t 5
with personalitics. why I'm not
t's not. Th a t ' s r
6 MR. ROIS!dJdi:
7 2 mentioning their names, Judge.
e
[ Laughter.] ;
I Well, maybe you could stay away frcm JUDGE BLOCH:
9l L I
anything about that.
to j nothing more about the Dough l Okay, tt' MR. ROISM7di 10 l Brothers.
13
[ Laughter.3 It's the ' adjectives I' d pref er you JUDGE DLCCils t
14 t,
15 to avoid, not the names.
All right.
MR. ROISM/di s 16 to talk about the question of Lastly, I want >
17 to trust, The team of people that have been involved with CASE I
licensing proceeding is (and I will say somewhat = .
i is in this -
j group) the absolute 20 i.v.odestly . and include myself in' the '
f best in this country on interventions and reprocentation o 21 citi:en groups.
22 them all: .
23 Juanita Ellis --- and I' ve worked with 's
' 24
. I've worked with virtually every _ citizen group that l l
I've never in my life ccen a ,
25 ) involved in nucicar planta.
i b
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_ --..._ __.___-_.._._ _-__ _ _ . _ _ . _ - _ . _ . _ _ _ _ _ . _ . . _ ~ . . . . _
d 4
1 r
k i 25268 i
workers f armerly employed in connection with the -1 1l l t
i Peak who may have empl oyment t 2l construction of Comanche l TU Clectric or a contractor, I s
3 l discrimination claims againut lement l t
TV Electric agreed to enter into good-faith sett 4
such disputes when the Joint l 5
negotiations to resolve 0l Stipulation becomes offective.
to settle ;
Although any former worker.who agrees l 7
a general releano, the his claim will be required to execute Bj preclude him from bringing any safety or I 9j release does not -L' :
atten. ion of the t1RC. -
10 technical matter tw the "
l That's the point Mr. Roisman was -
11 JUDGE BLOCll
/ all on anyone .
addressing before. There la no restriction at l t, 12 13 )l coming to the NRC with saf ety concerns ,
Right, and might I add anot.he r point-14 f MR. EDGhRt
\ j just for the record, that many of'the provisions that I'm repetitive or redundant to those in the 15 l.
16 summarizing here are regard the Joint Stipulation Joint Stipulation and in-that 0
17 in-nothing in that stipulation would 18 indicates clearly that of any individual or CASE to go to 19 ' any way limit the right 20 4 the t;RC.
I tiow, continuing and ref erring again t.o settlement 21 referrins to negotiations These negotiations ,
22 [-ofclaims.
of claims, include five' legal 23
. con,:erning settlement '
24 proceedings involving eleven plaintiffs,-including some of Lat:or, and ,
25 presently. pending cases before the Department l h i
t-l
' - - - ~ ~ ~ ~ ~ - - - ~ . - . - _ _ _ _ _ _ _ _ __
1 1
ilh 25202 0
0 a
!! I would do it.
lIlegal degree on yoo, -ork that's any 3
ever acen legal
h
! don' t think I've It's a pleasure lately.
than what you've been doing n
3[better
'i from you.
4 to receive papera Thank you.
MS. ELLIS:
5h Your Honor, I'm glad that Mrs. Ellis O . . GluiDE 4 c tj and I i she had asked me to make, 7 ol made the s ta tementa that t
to the Board that I _
a would Jimply like to make the statement receptica and l
also would like to thank the Board for its truth and its refusal to 4
3 +
the [
io ldi} igence and its insistence on l
truth from any cC the parties s 31l accept anything lens than the t o f a t.1 unch forced all of us 12 to this proceeding, which han the soues at realty and deal with 13 !i oth e r o n th e grounda of 0 l i i v u } hand. ed, as I think that everyone l!
~
l 2'm peraonally cenv nc i i
35 h at the position that we are at i that we never would be ic ! s ,
i been in the position l would never have ~
17 { today and the plant been into this new area had the Board not <
1e that we could move right t
on asking and formulating exactly the 39 iso incistent i
to cak, which forced both the utility to look at
o questions
!! and us to pornue those arcac that needed 25 ]its own weaknesaes i
22 Ito be pursued.
As you know, my principal positica in this case 23 to GAP at the blowers who came 24 started reprecenting whistle I who just couldn't handle them all.
of Juanita, 25 request 1
a k
r
p- .
d b
I, 252B3
?
student. I now have been 1
\ st:rted this procedure as a. law
-s j for two years and 1.have had a' tremendous 2j. practicing 3L opportunity to learn in this proceeding. the proposition-There has been much said about 4
some type of hush money or i
S - that this settlement represents On-behalf of all of my clients. present 6-money for silence.
I would like to say that-none of them would.
i and in the past, Their integrity is high enough that 7 -
ever accept hush money.
e they had to tell the truth and l they risked everythi ng that 9 :
h in exchange for silence, n
to j they would never accept hush money i i
{ Thank you. -j 11 i i
Thank you.
i 12 l{j . JUDGE BLOCH: !
] Ms. Moore for the Staff.
13 i that I have
.1 MS. MOORE: - In light of the-comments
.v 14 l the. Staff has only one brief statement to i.
k" is I made previously, i that the that is that the Staff' agrees I l 15 l make, and ! :
favor dismissal'of this ! i N Commi.ssion's policy and rules would ;
}
that the- parties have -l
7 li proceeding in light of :.h e agreement !
l 18[ t. t 1
19 ! reached. the. i i
I would also just reiterate once:more.that:
- 20 in its high quality.
21 ,
Staf f will continue in its ef forts, license to evaluate and review the Comanche. Peak 1
efforts, ,i 22 i :j
~
23 , efforts. :l e Thank you.
24 ) Moore. , l Thank you,:Ms.
JUDGE BLOCH:
. 25 f.
f .
.,.- ; -I l ' I v t
. -I
~ - - ~ . . . . . _ , _ _
g. ""'W,
l l-9 ;
1
-25204 is about to.-sign
~
What the Board is doing now is-it ;
If We expect to_ issue a 2
a1 summary order dismissing the case.
o f the i 3p somewhat fuller order that.will attach come there will be-a r for publication so that 4
' documentation to it f can be consulted for the purpose of 5 public record that But we' re going to sign the order now.
6 f precedent.
sign document]
CBoard rMmbers to 7
l The case is diamissed, pursuant JUDGE DLOCH: -
have just signed, s
j t. hat we 9 the memorandum and order to wrap up.and 10 There are some details that we want l l to make a few ctatements, too. t it the Board members want 12l This is a momentous occasion for this community, i ly for J
ia for the !!uclear Regulatory Commission and certa n personally.
myself and the Board members 14 -
a refutation of the
.\ , I see what's happened here as' t 15 I fuel common belief that the world i s black and white.
is
t. hat it's in necing all the~ colors 17
-that it is purple and .c 1'
that we find the truth , i is i an intervonor i In the. black and white - view;
~
i 19~
l depending on whether you are for or against 20 o rgani za tion , truth or alwayc-know:the_ji -
the ,
21 intervonors, cither never knows
- truth, 22 and- white view, a utility either i s 23 In the black 24 always evil or always good. ,
Ar.
he Staf f of- the Commission is always i- 25 e
i d
Ih
, , . , - - ,e - ...%, , - _ . - ., - - , . ,,, , . --yw. , ,4 .. m _ w - h- ..y-
(Q
r l
., S UNITED STATES BEFORE Tl!C DEPARTMENT OF LABOR
)
GARY W. BODIPORD, )
)
Complainant, )
)
-vs- ) 88-ERA __
)
Stone & Webster, ) COMPLAINT
)
Respondent. )
)
)
Comes now Gary W. Bodiford, by and through his attorney, and files this Complaint of discrimination and retaliation under the Employee Protection Provision of the Energy Raotganization Act, 42 U.S.C. 5851, ("The Act"), against Stone and Webster for failing to hire him because of his engagement in activity orotected by the Act.
BACKGROUND Complainant was hired by Respondent April 6, 1987, to work at the Comanche Peak nuclear power plant as a Stone & Webster Control Engineer. He had previously worked for Gibbs and !!ill at-the plant from February, 1982, to July 31, 1984, ret red in February, 1985 until April 3, 1987. He worked at the plant continuously until November 20, 1987, when his employment was Eterminated in a lay off.
Since-his termination, which Complainant believes was 3 v --
actually a result of his engagement -
~~. . -.. _
in internal dissent with Art V. Nevins, Complainant and others have been intimidated and harassed regarding completion of work on the 7300 system ED(F@ BIT EAGE OF-a na lo g c_ o..n..t r ol .
s
\
Additionally, Stone and Webster has .refused to rehire him. - , _ _ _ .
Ccmplainant believes that the reason he has not been rehir2d by' Stone & Webster is retalation for Complainant's having filed the t
detailed complaints about his quality related concerns with Ombudsman, the SAFETEld, (an employee allegation management prcgram run by Texas Utilities) and ultimately with the Nuclear
< Regulatory Commission. --
Complainant's experience that led to this complaint was the creation and tolerance of an atmosphere of harassment and , . -- . . , , , , , , ,
w.<....
intimidation at the site by several Stone & Webster management personnel, including Art Mevins, who placed extensive reliance on
- - . ~ . .
time schedule pressure as opposed to prudent work practices.
COMPLAINT
1. Ccmplainant is an " employee" protected under the Act by virtue of his status as a former and qualified prospective employee of Stone L Webster at the Comancne Peak nuclear power plant,
2. Respondent is an " employer" protected :nder the Act by virtue of its status as a contractor for Texas Utilities, working at the Comanche Peak nuclear power plant.
3. Complainant engaged in activity protected by the Act by virtue of:
(a) Interr21 dissent about t. r t Mevins' harassment and intimidation of engineers working on the 7300 syssem (analog i
control) and the misus.e of the "Co.nfirmation Required" stays t.q_close out various engineering problems with design c,a l c u.l.a t. i o n s a nd_v e r if i c a t i o n .
(b) Cxternal dissent by contacting the Stone & Webster e
9
1 1
l '
l j
Ombudsman, the SAFETEAM, (an external independent organization that holds itself out as wearing t.he mantle et the government in relation to the recruiting and processing of employee allegations at Ccmanche Peak);
(c) External dissent by threatening to and actually contacting the Nuclear Regulatory Commission ("tJRC") about his concerns. c
4. Respondent was fully aware of Complainant's engagement in internal and external protected activity through Complainant's d a
own declarations and the int'ormation provided to Stone and >
Webster, and Texas Utilities, tntough their investigations,
3. Complainant has cutfered discriminatory t r e a t u'e n t by .
virtue of (a) having been terminated in retaliation for eing ag e me n t in
~
internal protected activity, (b) having been denied further employment because of nas engagement in external protected activity.
6. Complainant has incurred substantial damages as a result of the illegal actions et the Respondent.
8 DUQUEST FOR R E L I C I' Complainant requests that Respondent be required to hire the Complainant, pay him cuch wagen and other financial damagen whicn are determined to be t- h e result of the Respondent's illegal actions, attorney's fees and expences 11 compennatory damages ter treatment for stress an a result of this matter, and such other damages as are determined to be appropriate in thic case. _
Complainant requesto expeditious handling of this complaint.
Sincerely, dl l'll A ,- __ ,
[L'A,,U } {,MLC1 & Q,, g, ('gg ~-
Hillie Pirner Carde Attorney for Ccmplainant 104 East Wicconsin Avenue Appleton, WI S4911 (414) 730-8533 DATED: June 20, 1988 cc: Office of the Administratot of the Wage & Hour Divicion Employment Standard Administrat.lon U.S. Department of Labor Room S1502 -
200 Constitution Avenue, !J. W .
Washington, D.C. 20210 Gary W, ecd 1 ford 8341 O'Hara Lane l'o r t Worth, TX 76123
4 (mt9
(/9 arrinarII er Zoasah 2 d a s 31 a l, E I-Under the pains and penalties of perjury, I
. true Joseph J. Macktal, hereby affirm that the following is and correct:
1) My name is Joseph J. Macktail, Jr.
1985 and January 2, 1986 I was
2) Between January 31, coployed as an Electrician and Electrical Foreman at the Comanche Peak Nuc1 car Construction site in Glenrose, Tens by Brown & Root, Inc. On January 2, 1986 I delivered to a-BrcVn & Root general fore =an, J. Rinddell. A true and correct copy is attached hereto as Exhibit 1. In retaliation for delivering this letter, my employment with Brown & Root Vas terr.inated.
3) While working at the Co=snche peak site I developed concerns about the following problems which I believe s
threatened the. quality of the plant's construction, violated Huclea. Regulatory Commission (NRC) regulations, and/or threatened the public health and safety; a) Contacination of stainless steel conduit.
b) Falaification of training snocts and travelers;-
c) I= proper accounting of dor..u=ents and r.ateriali d) Icpropor design, manufacture, and installation of clectrical codulta, and safety related circuits (including Hilti bolts, and pipe supports);
e) Improper site modification of vendor supplied equipment.
l
4) I personally brought all of the above listed EXHIBIT -
1 ,_
P. AGE -- -. 0F i
(
_ . _ _ . _ _ . . . . . . . ... . . _ _ . . . - . . _ - _ . ._ _ _ _ _ _._ c _ _ .
14rP8 ('
)
.]l allegations to the NRC Staff during_a transcribed confidential conference and during a confidential on-site Nonetheless , ' the )Gtc ,
inspection of the Co=anche Peak site.
I therefore
' failed to adequately address these concerns.
believe that these concerns continue to pose an unnecessary .
health and safety risk. .
5) In addition, I have concerns that vere not raised with the NRC staff or Licensing Board due to the restrictive tercs of a secret settle = ant agreement entered into betvean Billie Garde and Tony Texas Utilitica and my attorneys, .
Rola=an. These concerns includo:
a) The use of Kapton viring and ter=ination kits (including the d'osign and installation of electrical panotrations) ;
b) SAFETEAM's identification of confidential vhistleblevers and the barassment and inti=idation of
' '<@ employees who brought safecy concerns to manage =ent and/or SAFETIAM; c)
The ultra-vulnerability of key safety syottst; d) Design probic=n related to back-up safety systuna; c) I= proper atte= pts to silence vitnessen and surpress information before the NRC1 r) SArrrEAM's participation in and cover-up of safety concerns.
to SAFETEAX, I van 6)
After bringing safety concerns de=oted and-continually harassed and intimidated by 2
t
management, culninating in a constructive diochargo on January 2, 1986.
7) On Febuary 3, 1986 I filed a cc= plaint under Section 210 of the Energy Roorgani:ation Act against Drown & Root and Texas Utilition with the Departnent of Labor, known as 1
86-ERA-23.
I was reprenanted in 86-ERA-23 by Billie P.
Garde, Anthony Z. Roissan, Government Accountability Project They and Trial Lawyers for Public Justice (TLPJ) .
I (CAP) also stated to na that they would be representing ne before k
the KRC Licensing Board in matters related to Ccnanche Pea hearing and before the Texas E=ployment Co=sission (TEC) regarding une: ploy =ont cenpensation (upon information and belief this agreement is contained in a signed In violation of their express reprocentation agrootent).
me before the TEC, both Mr. Roistan agreement to represent and Ms.
Garde failed to prepare for and attend the hearing, I was told by Ms. Garde and
8) In early February, 1986, Mrs. Ellin en a number of occesions that I would be called as a CASE vitnesa before the ASLB.
9) In 2986 I nade a nories of confidential transcribed -
I did not safety disclosures to cembers of the FRC staff.
safety feel that the NRC staff prcporly addressed the concerns I raised at that tino and felt that they would not I wanted to testify befcre the do so anyti=o thereafter.
to believe that ASLB about =y safety concerns because I came I had to bypass the KRC Staff bureaucracy and go directly to d.
the ASLS if ny concerna were to be ' adequately resolve of transcribed confidentini
10) In 1986 I made a serica I believe that NRC Staff aatety disclosures to URC Staff.
3 f
i 1
. ._ . _ - .. -. - - _ . _ - . __.- . . . _ - - ~ . - . . - ~ - - - _ -
I t
f ailed to properly _ address the . concerns I raised at that l
time nor any ti=a thereaf ter. ~
f 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 ASLD.
12) On November 18, 1986 I Vas in Dallas Texas to '
participate in the Department of Lsbor hearing on my case.
Anthony Roisman, Two attorneys were present to represent me, and Billie Garde.
along with legal
13) on this day my attorneys, representatives of Brown . & Root and the C>0L Administrative Law Jcdge 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 was being tried in a back room without the testimony of vitnesses or myself. On several occasions both sides came
out of conference to obtain documents-and evidence and than This back room " conference" return to the back room.
continued throughout the entire day. hn I stated that I Ms. Garde vaht=ently wanted to attend the " conference,"
objected and. flatly refused to allow me to attend..
15)
During the courae of the conference both Billia Garde and Tony Roisman indicated to me- that; a) Brown & Root's final settlement offer Vas
$35,oco.00t b) If I did not accept the settlement offer of 535,000.00, I would.have to pay CAP. 512,000.oo before they could proceed with the hearing; and' 4
i
+
41 " If I did not accept the sottic=cnt and I did c) f they vould withdrav as not co=o up with the $12,000, counsel (as they had already done in ny une=ployment hearing). At that time both Ms. Gards and Mr. Roissan To the best of my kncv I was unemployed and indigent.
r2 collection, the terms of representation expressly stated that eq>enses were not due and payable until Yet, Billie Gards and Tony after the case was settled.
Roistan vere demanding money to continue with my cage.
and Tony Roissan agreed to G AP , TLPJ , Billie Garde, reprocent ce knowing that I was une: ployed und unable to afford an attorney.
16) Af ter considerabic pressure I agreed to settle my I understood that the $35,000 settlement case for $35,000.
of fer to be two separat:0 agreements botveen Brown & Root and for $15,000 to be mycoif. The first settlocent vould be paid to no, and that a second settle ent would be paid to
., to cover "expensoc" after GAP in the amount of $20,000.00 the caso was reeolved.
17) I was informed by ny attorneys that the Judge had 30 ordered the partica to execute the settlement within days.
18)
Brown & Root's attorneya did not attempt to execute On or abodt December 26, the settlement within 30 days.
1986, I informed Billie Gards that I no longar vished to settle my case and that I wanted to proceed with the trial. g 1986, I vast
19) on or about December 26th and 29th, a) informed by my attorneys for a second time I had to pay $12,000.00 if I did not accept a settle.nent 5
1
i i eri
(( .
Ms. Garde and Mr. Roincan were negotiating; b) told that if I did not accept the ter=s of the I vould be sued settler.ent (vhich I had not even seen) for breach of contract, would face serious financial burdens for the rest of my life, and that I would be billed by GAP for $12,000.00. Ms. Garde and Mr.
Roic=an also varned that Brown & Root would sue ne for refusing to sign the settle =ent and that they would not represent =o if such a suit occurred.
20) Nonetheless, I directed my attorneys to stop My ,
further settlement negotiations and prepare for trial.
attorneys refused to follow this instruction.
21) On December 26, 1986, I spoke over the telephone The following are verifiable exerpts of with Billie Garde.
a telephone conversation between Ms. garde and =yself:
Joseph J. Macktal: I am not ec~mitte-d to any kind of a settlement whatsoever. . .I'm going to the papers Tuesday is no (and) bleving this whole thing vida open...There settlement...
Billie P. Garde: You don't have that option any= ore. There is a settlement.
I ain't signing...I Macktal: No there isn't.
don't want a settle =ent. . .I don't vant you to sign any kind of a settle =ent agree =ent.
Garde: Then you better be prepared to pay GAP the expense of...,
Macktal: Whatever it takes...I'm not settling thing in the paper.
with them...I'm gonna expoce the whole 6
l
. .. . - ~ . . . - - - .. - - _. . .- .. -.
Cl ML ,
][ And that's worth $19,000c007 Garde:-
Macktals Yep, that's worth it.
Garde: I think you're making an absolutely insana decision. ..(T] hey're gonna sue you for breach of settlement. . .and that'll =ean you're gonna have to get lawyers.
Macktal Ist them sue me...
Macktal I'm not breaching the settlement agreenent. There was no settlement agreament...They did not its moot, it no co=plete the 30 day period. . . it's moot, longer ey.ists.
Garde: -You don't have that option.
Gardet I'm your lawyer,-I know what I'm talking about. You can not do thin. 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 (and) that's a lot to us. . We couldn't meet pay role settle =ent last veek. Everything is waiting to get this money -in order to make bill _ payments. . .You can't af ford to absorb that kind of a bill...This is $12,000.00.
e e
t Macktal: I-have made arra.ngments to pick up the transcript (of my confidential deposition I gave to the NRC) from the NRC.
The papers can't publish-anything until-the trail but the tanscript (I can. cake) public information 7
.. . - - ._. .. . . _. -- . - - . - - . . _ - _ ~_. - . . .- - .
. f P /FF J h{
noW (Interrupting) You're not going to have any-Garden lavyers.
s s e Macktal~: They breached the contract; I don't want, the deals off. I'm going through with it because they breached the contract and as far as I'm concurned I want to go to trial.
If they don't vant to go to trial --
Garde: (Interrupting) There isn't going to be a trial.
Macktalt The settlement agreement as far as I'm concerned is dead. .Nothing happened and its over...
22) on December 29, 1986, I rsotived h call from Tony
' Roisman. At that time I told Mr. Roisman that I wanted to go forward with the trial and terminate settlement I "At this point negotiations. I stated to Mr. Roisman that:
Bring it back-I'm not agreeing to any kind of settlement.
I want to go to trial."
to where it vas. 1 During this December 29th conversation with Mr.
23) reporters and j)
Roisman I told him that I had contacted some that I chose to expose the entire situation to the press.
Mr. Role =an then told me that I did not need to tell the "the reporters who are-covering preso anything now because )
same issues" the licensing hearings" would alao "cever the !
and-when my inf orr.ation was reported to the Licensing ' board, that my case was not "a speech inaue." l 2
8 !
l
I t
I I d%__ ,
T f-
24) During this December 29th conversation I was also told if -I did not' sign the settlement and chose to expose the situation then the following would occur:
"You realize that vill put you in a deep financial
- bind. . .they'll hold a judgment over .you,- they vill purouc you to the ends of the earth and if you ira successful in smearing them 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 i
at some point you'll have to pay a lot of money at the end they vill have von even bigger than today...because they're bigger they can beat up on you and because your smaller your not able to fight back. . ."
. 25) I then stated to Kr. Roissan that I still vanted to "go to trial," I emphatically ended the conversation with Mr. Roistan utsting. that the nettle =ent was of f and that I
ided and demanded,to go to trial.
26) I van misled and signed the settlement under durces. I did not want to settle the case, but I thought I had no option. A copy of the "Settlemant Agreasent" and a signed general release la attached hereto as Exhibit 2.
l Paragraph 3 of the settlement Agreement prohibited me f rom l
voluntarily appearing as a witnean before the Ata=ic Safety-and - Licensing Board or the NRC. It also prohibited attorneys for CASE (GAP, TLpJ, Ms. Garde-and Mr. Roisman) from cal' ,'r.g me as a witness for CASE or otherwise inducing 9
- - ,,,.r. -
, _ _ . _ . - - _ _ . p y , .y-. , ,, -.r. - , ,
v il
~h {
any other attorney, party, agency or_ tribunal to call me ma
- a vitnoes. It also required me to take a ll " reasonable" steps which Brown & Root instructed me to take so that I Essentially the cannot appear as a compulsory vitness.
settlement agreement silenced me from appearing before the ItRC vith additional safety concerns.
the Secretary of Labor issued an
27) on May 11, 1987, order in case 86-ERA-23 requiring the parties to submit a r.
copy of the confidential settiament agreement. (A true And exact copy of this order is attached as Exhibit 3).
28)
Evidently my copy of the order was mailed to me See a copy of a signed return-c/o Mc. Garde and GAP.
receipt included in Exhibit 3. A copy of the order was never forwarded tc me and I did not learn that such an order I was uc,*Vare that the was issued until August of 1988.
Secretary had roquested me to provide a copy of the settlement agreement to the Secretary or that I was in breach of the Secretary's order.
29)
In or about June, 1987, I called Billie Garde. to cbtain documents.
At that time she told me that my settlement was pending betere the Secretary of Labor and that tho Secretary had requested some more information about I was not informed that the Secretary had the nettlement.
issued an Order and requested to ses e copy of the settlement agreement itself.
Garde, but not kncVing
30) After speaking vith Ms.
a copy of the that the Secretary had requested to see se motion to
' settle =ent, I sent by first claea mail a pro 10 T Y'
1 l .vyw e ,
t l- gg the Secretary requesting that the settlement be set acido.
(A true and correct copy of this motion is attached as Er.hibit 4).
31) I wrote the attached notion out of desperation because I had been forced into signing the settlement against my vill. I r. ailed the motion in an attempt to gain justice and exposo additional safety concerns that I was prohibited'from exposing under the terms of the secret cettlement agreement.
32) I called the attached =otion without'the advice of Mr. Roisman and Ms. Garde or any other counsel. I did so hecause I believed that Ms. Gardo and Mr. Rosinan would not act to overturn the opprensive termo of the settlement agreement and I cont the motion so I could be al.'/ed to contact intervonors and the NRC with additional safety cencerns.
" This af fidavit, consists of cloven pages and is hereby executed by =y hand thia 3 day of $# /~ ___, 1988. _
hmek0 fk
/
ar.
h-f apepn a e nacxtal, 04/MAK 11
4 4/28/88 UNITED STATES OF AMERICA htCLEAK PEGULATORY COW 11SS10N BEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of }{
}{
TEXAS UTILITIES ELECTR:C }{ Docket Nos. 50-445-OL COMPANY, et al. }{ and 50 446-OL (Comanche Peak Steam Electric }{
Station, Units 1 and 2) }{ (Application for an
}{ Operating License)
}{
CASE'S IDENT1FICATION OF PIPING / PIPE SUPPORT ISSUES,.
Pursuant to the Board's 11/18/87 Memorandum and Order (Litigation Schedule), CASE hereoy files its specification of piping / pipe support issues which it is interested in litigating and the basis for its interest /1/.
/1/ CASE requested an extension of time until today to mail this . pleading, without objection from the Board, the NRC Sta f f , or the Applicants (see
. Applicants' 4/12/88 letter to CASE). CASE has advised both Applicants and NRC Staf f of most, if not all, of the. basic information contained herein. CASE is still in the process of reviewing documents which have been made available on discovery (including, for instance, those referenced in Applicants' 3/30/88 letter to NRC Staff and CASE, Applicants' 3/31/88 and 4/8/88 letters to Board advising of documents referenced in SSER 14, among others).
Although many of the issues discussed herein have applicability both to the Construction-Permit Amendment.(CPA) proceedings and the Operating License (OL) proceedings, CASEz is not specifically addreasing the CPA proceedings since at the present time the 0L 1 and CPA proceedings are'still separate. The motions for summary disposition filed by CASE in 1984 are not included in this pleading, since CASE now believes that they have applicability only to the CPA proceedings.
EXHIBir O 1 F. AGE - of
1 PRELIMINARY DISCUSSION CASE has experienced a lot of difficulty in preparing this pleading and i
One of CASE's primary difficulties in believes that it is premature. I writing this pleading is that much of the information which CASE believes is complete and is simply uo val'.1Lle essential to reach a decision is not yet In addi t ion . - in our -view it is not necessary that this be at this time.
Applicants' written at this time because of the slippage in the schedule.
11/18/87 schedule was schedule has changed considerably since the Board's-During the 11/3/87 Special Prehearing Conference, Applicants were issued:
1988 (they'were expecting to be able projecting a fuel load date of March 1, to make up some slippage which had occurred at that time which indicated a 1968) (see Tr. 25154); Applicants now expect fuel load date of ectly August commercial operation of Unit 1 "at the end of 1989" and construction on Unit (see excerpts :
' has been temporarily suspended for approximately one year 3/24/88 letter to f ror Form 10-K filed with the SEC, attached to Applicants' Board). It appears obvious f rom reviewing documents such-as the Applicants' reports of potentially reportable items under 10CFR50.55(e) (Significant Deficiency Analysis Reports, SDAR's) that this is due to the identification-is taking longer to correct some of of additional problems and because it Therefore, in many 4
the problus than Applicants had initially anticipated.
to identify is premature to attempt I
ways, this pleading is premature and it this
.the issues.
However, if CASE were forced to identify the issues at
.It was CASE's decision to pointLin time, they.would be-as discussed herein.
rather than asking for further go ahead and: file this pleading now, extensions at this time, although we think'such extensions would be d the warranted, because we believe it will be helpf ul to all parties an a
2
1 ll 1 j
Board-to_have this information before us in writing as we discuss tne future j course of.the case.
There are several-aspects of the piping / pipe support issues which CASE believes need to be addressed. CASE categorized the issues in three areas:
1. Apolicants' Plan; 2.-1mplenentation of Applicants' Plan; and 3. Analysis of the Results f rom the Reinspection Corrective Action Work (including the canclusion and the implications of what Applicants found).
1. Applicants' Plan With regard to Applicants' plan for the piping / pipe support ~ issues (i.e., Applicants' promise of what they are going to do and how they are going to do it), CASE has been favorably impressed by Applicants' commitments, especially those of Stone !, Webster and it:> id(ntification and Applicants and proposed corrective action regarding the Walsh/Doyle issues.
their consultant have paid special attention _to those issues, and it shows.
Based on what we know at this time, we do not anticipate that-it will be necessary to litigate .\ppli c a n ts ' plan regarding those issues. We plan to 4 engage.in negotiations with Applicants and NRC Staff; however, as discussed in more detail below, should additional concerns arise that vould indicate-that the plan was not actually what was followed, we would:at__that time want:
-to reconsider' litigation of the plan.
~
it is also important to note that CASE considerc the piping / pipe.
support plan to be a special case, and we believe (and would expect) that :-
very opecial attention-has been paid _by. Applicants to these long-raised, much-litigated and hard-fought issues.--In addition, the handling of the issues in a special.
-piping / pipe support issues by Stone & Webster puts _these 3
e category. Stone & Webster is not handling all of the other issues. CASE's ,
increased confidence. in this portion of Applicants' . plan is -.in part due to the Stone 6 Uebster work.
Alth(ugh it is still not clear exactly what documents olicants plan .
to rely upon regarding the piping / pipe support issues, CASE believes that it may well be possible to arrive at stipulations with Applicants and the NRC Staff regarding the plan itself. This would depend upon concensus that we are satisfled *ith the documents Applicants agree to submit into evidence-in the record. We believe that this is a possibility worth exploring, which-cruld save everyone much time, trouble, money, and effort regarding these particular' aspects of the piping / pipe support issues.
2. Implementation of Applicants' Plan ,
One aspect of the plan itself which is clearly deficient, in CASE's view, is that Applicants have not adequately dealt d th the rtat cause/ generic implication issues. (This isidiscussed in more detail under
3. Analysis of-the Results from the Reinspection Corrective Action Work; however, CASE considers it to also be a deficiency in the pl ari itself.)
The question of implementation of the plan is in dispute. There are a number: of -issues under implementation which CASE intends to litigate; however, CASE is unable to identify with specificity those documents on which it intends to rely on the implementatien dispute. - Part. of CASE s problem at the moment is the fact that it is not at all clear at.this point-
~
" in time when, if ever (and in what form) Applicants or the NRC..%af f will be addressing the implementation of Applicants' p..an, ? and whether or not the NRC Staff will issue an SSER regarding implementation similar to the one they have issued on the plan itself, or plan to review completion of 4-
< - - - n , . .. -c .- en, ~,
implementation- through- their regular inspection report program.. As stated
! *t the Staf f s 3/9/88 letter to Applicants: "The NRC Staff concludes that the corrective action ef f orts establish an acceptable program for resolving the technical concerns associated with the design of large and small bore piping and pipe supports and their imolementation should ~ ensure compliance with the applicable requirements of 10 CFR Part 50." ( Emphases added . ) '
In this regard it is important to note the limitation of the NRC.
Staff's SSER 14, which (necessarily) addresses implementation of the ,
Applicants' plan only to a limited extent. For the most part, SSER 14 addresses the adequacy of the plan itself. CASE believes it is appropriate-and necessary f or the Applicants and NRC Staff to clarify t h , for the Board and parties. CASE does not believe that piping / pipe support issues will be
~
ready for litigation until such time as implementation 1s completed /1/.
CASE is not, and never has been, concerned only with Applicants' plan.
We did not, for instance, challenge the Applicants' initial plan, which was their FSAR; our concerns were that Applicants were not in factfd oing what they had promised in their plan. Although CASE believes that Applicants' plan for addressing the piping / pipe support issues. for the most part, has the capability for adequately addressing and eventually resolving the technical engineering-type issues, CASE is not ready to simply accept the
]2/ CASE notes that the NRC Staff's inspection reports have raised troublesome questions regarding both the Applicants' plan and its
' implementation. Even so..we note that, when the proper time
- comes,- we believe that it may well be possible to also arrive at stipulations which might (in a manner'similar to what we hope. will develop regarding the piping / pipe support plan itself) dispose of many,-
if not all, aspects of implementationfregarding piping / pipe support
~
issues (especially if-Applicacts continue their cooperation regarding supplying of documents, _ informal meetings, and if Messrs. Doyle and :
Walsh are-allowed-to make a final walkdown). We believe'this would be beneficial Tto everyone regarding these aspects of the piping / pipe-l support issues.
L 5
_ . . _ _ _ _ __ . _ . . ._ ._ _ . ~_ __ _ _ __ , _ _ _. _ . - _
- _ _- _ _ . _ . - _ . - - . ~ . _ _ _ _. . . . . . . . -_ _ . - -. _.. _ _
a word of Applicants and/or Stone _6 Webster that the plan will be implemented properly. We believe that we must avait further completion and review of such implementation:before we are ready to sign off on these hard-fought and v'itally important issues. = CASE's level of confidence would also be greatly-increased if Messrs. Doyle and Walsh were allowed to make a final walkdcen when implementation is completed and closed out.
Additionally CASE may wish to litigate part or all of the Cygna repott(s) when it is issued. It is CASE's understanding that Cygna' plans td issue report (s) regarding various aspects of their review of Comanche Peak.
CASE is not certain at this time, since we obviously have not yet seen the final Cygna report (s) on piping / pipe sappsrts, whether or not we will want to litigate all or any part of such report (s). However, this is a possibility to which we would want to give consideration, regarding which we-cannot decide until after we have received and had time to review such report (s) /3/. CASE considers the Cygna report (s) an important part of both the Applicants' 'lan and its implementation, and we do not believe that
~
L o
piping / pipe support issues will be ripe for cc 2 ration until such report (s) are available, CASE has had the opportunity to engage in discove ry regarding them, analyze the results, f ormulate opinions , l e tc.
CASE may also want to litigate some or all aspects:of the technical-issues associated with the pressure cnt Cygns to do or notDdo certain_ things f 3/ - We want to emphasize that we do'not want to . rush Cygna with its report (s)' and believe it would be inappropriate for anyone. else to do-so; CASE believes that the-Board and all parties vill-be_far-better served by:Cygna's thoughtful, complete,_and detailed analyses.
However, if . Cygna does have an estimate of when it anticipates. it _will have its report (s) regarding piping / pipe supports; completed and supplied to the Board and parties, that would be very helpful; it would-also be helpful to know whether.Cygna anticipates filing one report covering all issues, disciplines, etc., or several reports covering-different issues, disciplines, etc.
-6 1
- , - - ,m ., + , , e s - .. . - ~ - - - - - - - - . = ~ . + - , + -e'---
k..
u.
in their review (see Applicants' 3/30/BB letter t o Boa r d a nd a t t a c htae nt. s ) .
Add i t ionally , C ASE i t itill reviccing the recently-released documents which Cygna and the Applicants have made available. At this peint in time, we are not ce rtain whe t her or tiot there are technical issues in addit ion to the
" h a r a r, s n e n t ur 1 intimidation" issues which we may want to .itigate.
Of par ticular concer n is the harassment and intimidation, use of a quota s y s t ers , etc. (see d'.scussion on Transcript pages a thraugh 11 of tne _
App l i c a n t s / N ea. Staff Meeti ig of 12/18/85), coupled with the recently-filed brought the Department of Laaor (DOL) case by the individual who a p pa re n t l',
t>
par t icular mat t e r whi ch was discussed at the !2/18/85 meeting nanarenent's attention, and DOL cases of other individuals (see, for example, attachments to C ASE' , 4 /15/88 letter to the Board).
These recent events raise questions and strong concerns regarding the areas of Applicants' program at her than piping / pipe supports -- not only regardita; possible technical engineering-type concerns, but also regarding what appears to be a persisting important flaw in implementation of 4 J
Applicants' plan and QA/OC program: an apparent continuing inability to put into place a program te adequately and promptly deal with harassment /
intimtdation and concerns raised by employees. Applicants still seem to suffer from what the Board termed ( regarding Messrs. Walsh and Doyle) a procedural deafness to concerns raised by employees (see Board's 12/28/83 Memorandum and Order (Quality Asaurance for Design), page 24). Furthermore, it appears that -- despite the SAFETEAM program and despite what CASE believes are sincere (but apparently unsuccessful) efforts by some individuals to change things -- a climate of harassment and- intimidation -- ~ ~ _ _ _
still exists and flourishes in at least some areas of Comanche Peak. This 7
I y
, t. , - -..~ - . - . - - . - . . . . - - - -. - - - . . . - - . . ~ . ~.- ~~
L 9
' is a concern which' cuts across the Applicants' Plan,-the 1mplementation of- i Applir. ants' Plan, and the Analysis of . the Results f rom the Reinspec tion -
Corrective Action Work. ,
n
3. Analysis'of the Results from the Reinspection Corrective Action Work-CASE is particularly concerned- regarding, and is not' in agreement with, the root cause/ generic implications reports' which Applicants have provided to date. Furthe r , CASE cannot believe that what Applicants have provided thus far adequately responds to what the Board and the NRC Staf f have recu;sted and what-CASE anticipated; if it does satisfy the Staff, CASE will then have ouestions -in this regard concerning the adequacy of the Staff's review. Certainly CASE does not believe it is complete and adequate.- In particular, Applicants' root cause analysis presented thus f ar (see attachments to Applicants' letters to Board dated March 29, 1988, . and April 21, 19!sS) does not include adequate consideration of the following:
harassment and intimidation of Quality Control Inspectors , ANI t Inspectors , craf tsmen, enginee rs , auditors , etc. ;
- specific details and results of the ombudsmen, OAl, or SAFETEAM -
investigations regarding piping / pipe support issues and/or harassment / intimidation regarding individuals involved in the .
piping / pipe. support areas;
- incompetent and/or inadequate engineering ' personnel;
- an analysis of why the Applicants' OA/QC program (including their audit program) did not catch the; problems;
- the willful refusal for years of Applicants to admit that problems J
even existed;
- management's role in allowing all of this to happen; 4
8
h E- .ru s.,,, *, , ,r- ~ - - -- ..v- c o, ,- . y -
=-. _ . _ - - ._ _ ~ ,
4
-s
- - (for additional specific details, see CASE's 6/6/87 Response to Applicants' Interrogatories to " Consolidated Intervenors" (Set No. 1987-1) and CASE's 7/6/87 Supplementary-Response to .
Applicants' Interrogatories to " Consolidated Intervenors" '
(Set No. 1987-1), which provides specific citations to the OL record)
One aspect whicl, is_ troubling regarding this metter is that Applicants ,
still have shown no indication that they are willing to accept a basic-premise which the Board stated when it set the current schedule (quoted from Judge Bloch's comments at 11/3/87 Special Prehearing Conference, Ir. 25142;.
similar wording was = contained in the - Board's 11/18/87 Memorandum' and Order (Litigation Schedule) at page 1):
For the purpose of that schedule, we expect to assume, unless shown otherwise in the course of'the hearing, that there has been a historical.0A design andJOA construction breakdown.
To the contrary,- Applicants have specifically stated that they "obviously do not accept such assumptions as proven facts"-(Applicants' 11/24/87-Preservation of Objection to 'Prehearing Conference Ord'r, at page 1)..
.This: is important in several ways. First,'it continues!the Applicants'
11 past position of_ refusal to' squarely face facts and accept what everyone.now.
knows is true -- that there has, indeed, been a historical:0A-design and.0A construction brtakdown. -This means that CASE must be prepared - to prove it all nver again if Applicants-persist in that position.
This attitude is perhaps even more rimportant regarding otherrareas .of D z _'the plant which have not been. under as intense . scrutiny as piping / pipe supports. CASE has been and continues to be concerned about how much-Applicants have learned from the failure of their QA/0C program for-
-9
'd - + e---dy e-- er <=ee.m- '*t 7 >="r ?T r' t f 7*'
tTT Y'BW*ES- T 4'WP-WFF " W' V N' W
d piping / pipe supports-and the' extent.to which such lessons learned heve or have not been applied to other arean.
CONCLUSION CASE does not believe that Applicants can accurately reach a proper ,
root cause/ generic implication conclusion on the basis of the plan when evers they don't have the results from implementation and_cannot foretell the. ,
future. Further, what they have provided so far regarding root cause/ generic implications a inadequate, even on its face, because of what is already reflected in the past tecord of these proceedings. Finally, incomplete information, from sources-such as the SAFETEAM, of which Applicants are aware but which has not yet been revealed to CASE or .the NRC, obviously impacts on the adecuacy of implementation and the overall reliability of the corrective action program.
It is unclear, other than to push the hearing forward, why this root cause report has been issued. It is clear, for example, that the root cause report did not deal with the allegations of Messrs. Radelich and Goese, and apparently_others who have gone to SAFETEAM with allegations of--
implementation improprieties.
4-In summary, CASE will definitely want to litigate ',mplementation of the s
ilan including some harassment and intimidation issues. These include ~(but are not~ limited to) the harassment and intimidation.of Cygna (see Applicants 3/30/88 letter to Board and attachments).
There are also definitely some issues which we want _ to. litigate regarding piping / pipe ' supports and the ef fects of an atmosphere _ of L harassment and--intimidation of individuals who were involved with them (such as Messrs. Polizzi and llasan). In CASE's view, the harassment / intimidation' 10 i
. . . . , . _ _ . . , - - _ - , - - ._ _ - . _ _ - , _ _ . ._ --_ _ - ~ - - -,_ .
.;2., ._ .- ,
issues hth raise the m a n a ge tae n t issues agai n , atg!_ c a ll into quehtton the in addition, credibility of the implement at ion of the technical program.
recent events have r ained quest ions reParding the .ut e q u a c y of ( he !lR L:
Stati's wot k .
At thth point in time, we ate n it cert ain whe the r or not t he r e are technical i s s ue f, in addition to t h, haraument and intimidation issues which wo may want to litigate. It is very disturbing and distrebuing to CASE that th" i nf ormat i ati r egarding t he intimidation of Cygha did not come to light _
until :t was br oug ht o u t. in t he TU Electric / minority owners lawnuit. This in it self taises numerous questions to which we want answers, such an wha vnew what wheti and why didn't t hey inf orm t he hoard and patttes, at len%t at the tin" the changeover wan made fron Mr. Wade to Mr. Redding -- not only regarding the Applicants, but alun Cygna. Why didn' t O, t i n t o rni the And where was the Board? Where was t h i c. in Cygna's communications reports?
NEC Statt while all this was going on? Did they know about it? 11 so, why didt t they in' orn t he Board and parties? If not, how could they have miwed it? How long had this hatassment and intimidition been golng on? _
lia s it now changed, and if so, when did it change? What effect did it have on Cygna and Cygna's wot k product " Wb is the current situation? etc.
Finally, CASE intends to lit igat e the inadequacy of the collective significance report, collective evaluation report, root caure evaluation
. epo r t, s , and Renults Report V11.c. in tegardn to the piping / pipe support issues.
CASE does not necessarily believe (nat i.11 of the lar.uen with which we are concerned vc ?e nost efficiently litigated in connection with the pi pi ng / pipo .upport P;K's. We e.re currently . the process of re-evaluating the schedule in light of the most recent information available, to attempt 11
i i
3
. I to ascer tain whether or not there are ways in which the case might be E
reorganized to be more officient and at the same timt address CASE's i
concerns. We expect to address this further at the upcoming procedural conference currently tentatively scheduled for May 11, 1988.
Respectfully submitted, f i M '._ -
O l' ' / ,q '- . i Billie Pirner Garde ,A GAP - Midwest 1)ffice .-
104 E. Wisconsin Avenue - B Appleton, Wisconsin 54911-4897 414/730-8533 Co-Counsel for CASE 1
f ) // . , '
a ,[,;. W Y
/(Mrs.)JuanitaEllis, President i CASE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 Co-Representative for CASE l
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1: - - - . . - . - . . . . - - . . _ _ _ _ _ _ _ _ _ _ _
bo UNIT!D STAf f 5
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November 8, 1989 T. Louis Austin, Jr., Chairperson Brown & Root, I n *: .
P. O. Box 3 Houston, Texas 77001-0003
Dear Mr. Austin:
I am requesting that you waive the attorney-client privilege invoked by you on behalf of Brown & Rout regarcing any notes und/or other written communication prepared by Glenn Magr.ason concerning your meetings or conversations with Joseph J. Macktal. I believe these notes are necessary in order for me to perform a thorough investigation of this matter due to your and Mr. Magnuson's admitted limited recollection of these events. Since you expressed a desire to settle this matter expeditiously at our meeting on October 23, 1989, I hope you will comply with my request.
Additionally, I have not yet heard f rom you or J. Patrick Hickey regarding my '
request for records, such as corporate jet logs, to clarify the number and dates of your meetings with Mr. Macktal. I also requested that you provide me with any documentation regarding job offers or back pay offers made +.o Mr. Macktal or any other records or personal notes you had regarding the meetings and/or conversation with Mr. Macktal, Please let me know if any such records are in yoir or Brown & Root's possession and, if so, forward copies of them to me.
Tn.nk you very much for your cooperation.
Sincerely,
/ mb i fe <<A.-
Virginia Von Cleave Investigator I
.XHIBIT-PAGE DF
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December 8, 1989
.; ,>ATmCn ,ccere,pC Ms. Virginia Van Cleave office of Investigations Field Office, Region IV United States Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 1000 Arlington, Texas 76011 Dear Ms. Van Cleaves In accordance with our telephone conversation yesterday, I am enclosing copies of the Brown & Root Aircraft Use Report for the two trips in the first quarter of 1986 reflecting stops made by Mr. Austin at locations near the Comanche Peak plant. You will note that they reflect a March 31, 1986 stop by Mr. Austin at Cleburne, Texas, and an April 5, 1986 flight by Mr. Austin and
,( Mr. Magnuson to Stephenville, Texas.
The cr pany has been unabic to 1ccate any record reflecting Mr. Machtal's signing in on the building logs at the Houston office, so we cannot throw further light on Mr. Macktal's claim on that subject.
Finally, your letter to Mr. Austin requested a waiver of applicable privileges and production of documents related to Mr. Macktal's claims. As I explained, to the extent your area of interest is in determining whether Mr. Macktal's alleged concerns were investigated, you now have the benefit of your interview of Mr. Macktal, and presumably of his identification of the issues he claims to have raised. You can confirm with the Safeteam records at.the site whether those items were addre-sud. However, as you are aware, there is presently litigation pt. Jing involving
_XHlBIT PAGE -OF EXHlBlTY PAGE / og b PAGE(S)
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SHAw Pnm AN, PoTTs & Tnowomoot
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Ms. Virginia Van Cleave December 8, 1989 Page Two Mr. Macktal and hic allegations, and the company cannot at this .
' time agree to waive its privileges and protections concerning Pa. Macktal's meeting with Mr. Austin and Mr. Magnuson.
Sincerely, Aqa-J. Patrick !!ickey Counsel for Brown & oct, Inc.
Enclosures EXH!BlT N PAGE 1 0F D PAGE(S)
CAstNo. 4-89-008
JR13L N A
' OFFICIAL TRANSCRIPT OF PROCEEDINGS Agency: voc2 ear negulatory coe:1.. ton I5NC: Investigative Interview of Billie Pirner Garde Docket No.
k mngy, Arlington, Texas gg Friday, October 27, 1989 p,e 1 - 91
-..vi.';dG!cd ia l & :;a % 4 2 *" * * "*"
rn _fa.- ad EXHlBIT -l G Ot PAGE t
ANN RILEY & ASSOCIATES, LTD. p 2612 x a.nx.sa w L ushitypen, D.C. 20006 [t (202) 293 .9 50 / .
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l i BEF0FE *HE f
U. S. t1UCLEAR REGULATORY COMMISSIO!1 Interview of BILLIE PIR! ire GARDE conducted on Friday, October 2*1, 1989 in the 8th Floor Conference Room, 611 Ryan Plaza, Arlington, Texas, commencing at 3:00 p.m.
AFFEARA!1CES:
On bthalf of the U.S. tiuel ear Regul at ory Commission:
VIRGIt11A VAti CLEAVE 611 Ryan Plaza Arlington, Texas On behalf of the Witness, BI_LLIE PIF!iER GARDE:
(Mr. Johnson appearing telephonically)
'- VER!iO!1 JOH! ISO!1, Attorney Jackson and Campbell Washington, D. C.
EXHlBIT PAGE f _OF D PAGEh)
Da' NO. 4-89-0 08
{20,/!n$vn
76 1 bring a civil tort lawsuit, like the Atchison plaintiffs 2 that was settled for e large amount of money, by the time 3 the Conanche peak settlenent was reached.
4 Q. Do you know, do you have any idea why Brown &
5 Root's attorneys wished to put that language in the 6 settlement agreement regarding Hacktal'n testifying before >
7 the ASLB?
8 A. All I can tell you is what Rick Walker said at 9 that meeting, which was that he had been trying -- that he 10 had lost a lot of credibility with his client of late 11 because every case he settled with Tony and I ended up ,
4 12 coming back to haunt him in some other forum, and that when I'
13 he went to the company and said, *Let's settle this case. I L 14 think this i s what we should do,' that then the company was 15 turning around and sayit9, Why did we settle this case 16 because we're now having to reiftigate the same case and get -- :
17 egg on our face either in a licensing hea,-ing or in another :
18 lawsuit or in a state lawsuit " and they settled one claim.
19 And so the language that he was going to propose 20 was going to absolutely bar Brown & Root frc.m having.to deal 21 with'Mr. Macktal-and his claims anywhere at any time ever 22 again, so they thought.
23 Q. But wouldn't the release that Mr. Macktal signed - -
24 do that? Didn't it say that he releases Brown & Root from 25 --
EXHIBIT @ ,
'e 9 h 0F Y PAGE(S) jASE,NO.., 4- 89 -Q08
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I l
77 i A. But they had signed other releases with clients 2 represented by me or Tony before, and then those clients 3 ended up becoming part of the harassment and intimidation .
4 contention before the Licensing Board.
5 So even though the whistleblowers themselves stood 6 to gain nothing by testifying in the licensing hearing on 7 harassment and intimidation issues, Brown & Root lawyers and 8 Texas Utilities lawyers had a lot to lose by the licensing 9 hearings.
10 Do you follow what I'm saying?
11 Q. No. Maybe you could elaborate a little bit. What 12 is "a lot to lose"? What do you mean by that?
13 A. Well, at the time that Hacktal's case arose, if
(
14 you know very much about the licensing hearing of Comanche 15 Peak, Comanche Peak had an ongoing operating license in 16 which there was one contention left for litigation. It was 17 Contention 5.
18 The contentio,n was that there had been a breakdown 19 in the quality assurance / quality control program at Comanche 20 Peak historically, such that there would be no reasonable 21 asturance that the nuclear plant could ever -- was 22 constructed or could ever operate without endangering public 23 health and safety.
24 That contention was broken down into two dockets.
25 One docket was the design nodification/ quality assurance EXHlBU J2'-
PAGE 7 7 OF DPAGE(S)
CNE NO. 4- 89-008
78 l
1 issues affecting the design of the plant. The other docket j l
2 was harassment and intimidation of quality control 3 inspectors and others -- but "others" wasn't litigated at 4 that point -- such that no matter what the written results 5 on paper were of the QA/QC program, that there was no 6 reasonable assurance that those results could be relied en 7 because there had been such an atmosphere of fear, 8 harassment and intimidation at comanche peak se that none of 9 .tbc documentation was reliable, that the QC inspectors had 10 been forced to sign things off or didn't sign things off, or 11 that they were so af raid of their jobs that they didn't do 12 their job.
. r-13 Tony and I were the lawyers on that docket,
(
s 14 During the summer of '84 and the fall of '84 and the very 15 early beginning of 1985, Trial Lawyers and gap put on almost 16 a hundred witnesses, both our witnesses and TU witnecses, to 17 demonstrate that such an atmosphere existed and the.t there 18 was no assurance of the quality of the plant.
19 When the Board Issued prelirinary decisions on 20 those matters, it was clear that we had convinced the 21 Licensing Board that we were probably right.
22 At the same time the NRC's technical review team 23 lasued a document called SSR-11 -- SSER-11, which included 24 an Appendix-P, that there were so-many problems with the 25 cosanche peak quality assurance / quality control program that 1 EXHIBTT / b aAGE.'l f OF WPAGE(S)-
CME NO. 4-89-008 '
L lf 79 l
the plant was safe.
1 there was no reliability that Thore two things combined f orced Texas Utilitien 2
into the Licensing Board at a time when they 3 ,to have to go said that their plant was ready to load fuel and operate --
4 $3.5 this was in the fall of 1984 -- when the plant cost 5
6 billion, that they were ready at that time.
When the Board issues its preliminary decisions 7 it forced and orders and concluded that they were not ready, 8 d rework 9
them to have to do a hundred percent reinspection an The cost of the plant today 10 and design modification plan.
11 is about $10 billion.
They've spent 6 billion trying to figure out what 12 iive years out there. That's what
((' 13 14 they did for the first they he.d to lose.
If we successfully convinced the judge, which we 15 10 did, that the plant wasn't conntructed and designed in they had to lose was 17
.accordance with the regulations, what 18 getting approval for licensing the plant.
Now, that maybe won't run directly to Brown &
19 if
. Root, but the other time that that happened in Region IV, 20 is tthen Brown &
l you know anything a, bout the history of that, 21 22 (l Root built the South Texas Nuclear Pla.nt, i ht the
& NRC c 23 and said, "You didn't build it right," and Houston L g It ended up in a,n out-of-court 24 Power sued Brown & Root. f
' 25 1 '
settlement for billions and billions of dollars, in terms o EXH1BITM DAM PAGE M OL
, ASE IEl. 4-g9, ggg
80 1 the work that was done on the project.
2 Individually, Fr. Macktal had nothing to gain one 3 way or another by being a witness in a Comanche Peak 4 licensing hearing. There was nothing to gain as a witness.
5 But 70 had a lot to lose, and so did Brown & Root.
6 Q. But if Mr. Hacktal had already told about his 7 concerns to the NRC, and according to your own testinony Mr.
8 Macktal in your belief had lost a great deal of credibility, 9 what could he tell the ASLB that could irnpact negatively on 10 Brown & Root?
11 A. Well, two things to answer your question. First 12 of all, he had told his safety concerns to the Huclear 13 Regulatory Commission which was investigating those lasues, 14 but had not yet issued its report.
15 Hy statements about his credibility in this 16 deposition did not go to whether or not I believed Mr.
17 Hacktal had raised valid concerns. I think he raised some 18 valid safety issues. The NRC reports substantiate that.
19 I'm saying his credibility, looking at him c.s a 20 witness that I had to protect on the stand, could his 21 cre'dibility - - withstand cross-22 examination. I concluded that it could not.
5 EXWBIL V
PAGE__p p op% _ME@
l cast M.. 4- 89-0.08 '
Q,]c an % .
Si i cared whether or not he had safety concerns, and that's what 2 they wanted to know, and that's what they were pursuing.
3 But it's my belief that the reason that TU and 4 Brown & Root lawyers were no insistent on putting that 5 clause in about the licensing hearing was because Tony and I 6 had managed to do an extremely effective job of taking 7 selective whistleblowers and making them as examples of what 8 was the atmosphere on the whole plant.
9 And at this point, 1986, we were well into a $4 10 billion reinspection and reconstruction program. -
Hr .
11 Macktal's case didn't go to the past, ' 84, bef ore - - they .
12 already lost on that -- it went to the present.
13 He was testifying that at present that atmosphere 14 still existed. And at that point those issues were not in 15 front of the Licensing Board, and they were very afraid that 16 they were going to be brought up in front of the Licensing 17 Der.d.
18 Q. I still don't follow the rationale here. On the 19 one hand you say that you were, as an employee of gap, did 20 not mind having that !anguage in the settlement agreement; 21 and yet it seems to be on the other side you're saying it's
! 22 to the advantage of Brown & Root and 70 Electric that Mr.
I 23 Hacktal not testify.
24 A. They certainly had something to gain- by it. But 25 they didn't know and couldn't know our strategic (if you
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6 6Y COHEN, MILSTEIN & HAUSFELD pctgtm U#
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RICMa#O 5.LEwi$ ANTHONY L NOISM AN' CLl! A CETH J. Cyn nt N e,cey .cL caNit6 s sow-cas June 29, 1988
,,. _ , . . , _ _m U.S. Nuclear Regulatory Commission ATTN: Document Control Desk
~"
Washington, DC 20555 RE: In the Matter of Texas Utilities Electric Company (Comanche Peak Steam Electric Station), Dkt. No. 5A.445 p equest for extension of construction permit no CPPR-126 Gentlepersons:
bPR On June 6, 1988. Texas Utilities Electric Company (TUEC) filed a request for an extension of its construction permit completien date for Unit 1 of the Comanche Peak nuclear plant (CPSE9). This request seeks an additional three years for completion, in addition to the three year extension requested in February 1986, which wcs approved by the conmission but made the subject of an evidentiary hearing, which is still ongoing.
Docket No. 50-445 (CPA). The Commission has unequivocally concluded that the granting of any extension of the construction C completion date for the Comanche Peak Unit i raises sufficiently substantial safety issues that a licensing hearing should be held.
The question that was admitted in,that licensing hearing --
approved by the ASLB and the ASLAP without Cormission reuiow --
is whether the licensee's failure to complete construction on a timely basis was caused by its deliberate disregard of the m Commission's regulations in an unlawful attempt to speed Ij construction and reduce costs and, if so, whether the licensee has appropriately repudiated that improper motive. No hearings 2 w have yet been held on this issue, but substantial evidence has 90 been anassed by the Intervenor CASE from the files of the lead licensee and the minority owners. This evidenec indicates that fN' there is%_substantial merit to the issue. _
In light of all of these' developments, CASE opposes the consideration of the licensee's request for an extension of its construction permit for Unit 1, other than in a contested licensing proce.cding in which CASE would file as an Intervenor. Q 8807060040 880629 PDR ADOCK 05000445
)Y 1 ,
PDR
.. . . - _ . - - . . - - . . _ _ = _ . - _ - - - _- . . - . _-
We believe that the recently filed request raises significant hazards considerations, as demonstrated by the previously referenced documents. Those documents disclose serious Jafety problems that were ignored as a direct result of TUEC's improperly motivated construction plan. If, as CASE alleges, the improper motives have not been repudiated in fact and deed (but in word only), similar safety problems will also be ignored in the rework program when it is advantageous to the construction schedule. Because of the presence of significant hazards considerations, action on the TUEC request must be preceded by a notice and opportunity for hearing pursuant to .
Commisslon regulations and decisions. Thus we request that the Staff promptly file the appropriate notice of opportunity for public hearing in the Federal Recister and defer any further action on the requested extension until such time as a licensing board is appointed and then proceed to act in accordance with the directives of that Doard, h: There is also now pending a request by TUEC to extend the .
completion date of the CPSES Unit 2. CASE advances all the same f arguments set forth here with respect to that pending request, ,
including CASE's request that all action be deferred until a '
notice of opportunity for hearing har been filed and a duly authorized licensing board has been appointed. I In the interest of efficiency, CASE urges that the three CPA dockets be consolidated for all matters, since the dentical underlying issue applies to all dockets. This letter is not a substitute for a full intervention petition nor does it purport to fully represent all of the data supporting the positions stated. This letter may be supplemented shortly. Like TUEC's June 6, 1988, it is merely a bare outline of the basic principles being advanced. At the appropriate time and in the appropriate forum, CASE will provide additional information in support of its g position.
Sincerely, fc /
. Roisman g
AnthonL,he One of t Counsel for CASE cc: Chris Grimes William Counsil Bil,1.ie Garde
Juanita Ellis I .
I
_._ _ _. _ _ _ _ _ . _ . . _ _ _ _ _ . _ . _ . _ . . _ . ~ _ . _ _ . -
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'92 BCT -7 P 2 :45 !
t CERTIFICATE OF SERVICE ra p . . . i t, n -
I IIEREBY CERTIFY that copies of the forgoing ihuve' boo 6 Ydrved l upon the following persons by U. S. Mail, first class," by being placed in the LeDrolt Park Post office Annex this _ 5th day of October, 1992, postage pre-paid: .
Secrotary, U.S. Nucelar Regulatory Commission ,
Washington, D.C. 20555 Administrative Judge James II. Carpenter Atomic Safety and Licensing Board ,
U.S. Nucelar Regulatory Commission Washington, D.C. 20555 +
Administrative Judge -!
Morton B. Margulies Chairman, Atomic Safety and Licensing Board ,
U.S. Nucolar Regulatory Commission
Washington, D.C. 20553 Administrative Judge Peter S. Lam Atomic Safety and Licensing Board ;
U.S. Nucelar Regulatory Commission Washington, D.C. .20555 George Edgar Counsel to TUEC Newman & IIoltzinger, P.C.
1615 L Street, N.W., Suite 1000 Washington, D.C. 20036 R. Micky-:Dow
322 Mall Blvd., # 147 Monroeville, PA 15146
- By:
Michael D. Kohn I
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ML20106D313: Difference between revisions

Latest revision as of 19:10, 23 September 2022

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Dear Mr. Cahill:

Dear Administrative Judges:

Dear Mr. Austin:

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