Text

Motion to Reopen Record.* Requests That Licensing Board Reopen Record & Grant Leave to File Motion to Intervene. W/Certificate of Svc
	ML20086G738
Person / Time
Site:	Comanche Peak
Issue date:	11/22/1991
From:	Dow R, Dow S; AFFILIATION NOT ASSIGNED, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	; Atomic Safety and Licensing Board Panel
References
	CON-#491-12370 CPA, OL, NUDOCS 9112060055
	Download: ML20086G738 (255)
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' UNITED STATES OF AMERICA NUCLE AR REGULPPORY CUKMISSION hEFORE TiiE ATOMIC SAFETY AND LTCENSING UOARD'91 tm 22 AU :47

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In the Matter of: 0 "" " )) ; d .

E TEXAS UTILITIFS SLECTRIC G Docket Nos. 50-445-OL I COMPAhY, ET AL., 0 50-446-OL Q 50-445-CPA 0 /C?

Comanche Peak Steam Electric Q /~ '

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MOTION TO REOPEN THE RECORD Pursuant to 10 C.F.R. Section 2.734, petitioners Sandra Long Dow

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dra Disposable Workers of Comanche Peak Steam Electric Station, and F.

Licky Dow, request this tribunal to both re-open the record of the a-bove-styled and numbered proceedings, and thereafter grant petitioners leave to file their meticn for intervene.cn.

The Rules of Practice, 29 C.F.R. 4' art 16, grant to an Admin stra-tive Law Judge the authority to "vhe.e applicable, take any appropri-ate actior authorized by the Rules of livil Procedure for the Ui.ited

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States District coutts." 29 C.F.R. D.'6.29(8). Accordingly, th-- Rules of Fractice adopt, where appliaable, the Federal Rules of Civ 1 Pro-cedure and grant to 'he Administrative Law Judge. Where appropriate, the power to take action authorized by the Fcieral Rules of Civil Pro-cedure.

RULE 60, FE_D_ERAL RULES OF CIVIL PROCEDURE

" Rule 60. Relief From Judgment or Order", has direct application in the motion petitioners' now bring before this board.

It states, in p;rt "On n.otion and upon suel, terms as are just, the [ board] may relieve a party fron [an] . . . order, or proceeding for the following reasons: . . . (2) newly discovered evidence which MOTION TO REOPEN THE RECORD 9112060055 911122 ) S03 PDR ADOCK 05000445 C PDR

g by due diligence could not have been discovered in time . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), mis-representation, or other misconduct or an adverse party. . . . .

Al-though the rule states that the motion ahall be made within a reason-able time, usually meaning within one year of the order, it goes on to state, in part "This rule does not ifmit the power of a court to

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entertain an independent action to relieve a party from {an) . . . or-der, or proceeding, . . . or to set aside [an order) for fraud upon the court."

CASE BACKROUND There is no need to remind the members of this tribunal of the difficulties o' the past. This entire issue, in its length, mountains of documentary evidence, switching of witnesses, and finally the sud-den withdrawl of the only viable intervenor, we are sure, still bring shudders to the minds of the members. What petitioners believe is im-portant to remind this board of, are the continual exposures of mater-ial false statements and misrepresentations, by all parties, and the need to continually re-examine facts, data, and testimony. When the Citizens Association For Sound Energy withdrew as Intervonors, this board was left, with but a single choice, to grant the license It is also important for the board to remember that there was a previous motion, much like this, filed by one Lon Burnam, and then suddenly withdrawn, and petitioners would aver to the board that this motion, as well, was withdrawn, under the saue suspect conditions as those of tne Intervenor C.A.S.E., and petitioners can support theic averment with documentary evidence. This in itself, is suf f' :ient enough reason to consider petitioners' motion as being timely. But.

in the alternative, because some of the evidence, of the greatest ma-MOTION TO REOPEN THE RECORD - - - - - - - - _. _ _ - _ _ - _ _ _ _ . _ _ _ - _ _ _ _ - _ _ - _ _ . _ __-_-

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I i terial value to this board, has only come to light within the last !

thirty (30) days.

1. 10 C.P.R. 62.734(a)(1). l Petitioners satisfy 10 C.F.R._02.734(a)(1) for the following rea-sons, and in the following respects:

1) Although this motion is brought more than one year after the close of the record in this matter, Rule 60 F.R.Civ.P. provides the board with the power to entertain an independent action.

2) New evidence regarding the payment of " hush" money to whistle-blowers, not to testify before this Board sufaced for the first time after the record was closed; and, new evidence concerning the payment of " hush" money to the intervenor C.A.S.E., has only, now, surfaced.

3) Evidence now exists to show that the intevenor C.A.S.E. and members of the Government Accountability Project conspired to keep the evidence of the whistleblowers from ever reaching the Board.

4) Evidenco now exists to show that there was a duplicity between members of the Nuclear Regulatory Commission and members of tne upper management of the applicant, to secure the license.

-2. 10 C.F.R. 62.734(a)(3).

Potitioners satisfy section 2.734(a)(3) for the following reasons:

1) As evidenced in Petitioners' Exhibit A (excerpts from two sec-ret settlement agreements), money had been paid to potential vitnesses, not to testify before this board. As evidenced in Exhibit B (affidavit of Joseph Macktal), a potential witness was coerced into accepting mon-ey, not to testify before this board by the attorneys from the Govern-ment Accountability Project, representing C.A.S.E., namely one Billie j

Priner Garde. Petitioners' Exhibit C shows that the organization GAP routinely led whistleblowers to believe they would be given a chance gOTION TO REOPEN THE RECORD . -- . _ - _

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3~ to testify in proceedings,'and receivu protection, when in fact their

. cases would be so utterly mismanaged that they never went to trial.

Petitioners' Exhibii is the handwritten note from one ALJ to anoth-er, for the Department'of Labor, showing clearly that they were not fooled by these_ tactics, and what their opinion of them was.

2)-Petitioners allege that false and misleading statements vore repeatedly made to this tribunal between 1982 and 1985 by Texas Util-ities vitnesses and that these false and misleading statements re-suited in this Board's reliance on, and adoption of, either false or misleading facts when issuing its December 28, 1983 Memorandum and Order in the matter of Texas Utilities, et al., Docket Nos. 50-445, and 50-446. As memorialized in that order, the ASLB-relied on tes-timony provided by Mr. Finneran and others, as well as false or ma-terially misleading facts contained in a NRC staff Special Inspection Team (SIT) report to answer the following fundamental question:

"[A]1though differences in engineering approaches occurred between the three parallel pipe support groups (ITT-G, NPSI and PSE) _ . . . the fundamen-tal issue for~this Board to resolve is whether these differences in engineering approaches rep-resents a safety or engineering concern . . . (by assuring) that each design organization has a

- clear, documented scope of responsibility. .. .

A copy _of the relevant portion of the December 28, 1983 ASLB Memor-andum and Order is attached hereto as Petitioners' Exhibit E.

As a result of false information presented 1to the ASLE and/or NRC staff, the ASLB was led to believe that:

The evidence establishes that each of the three pipe support design organizations has its own specific scope of responsibility for a specific group of supports. There is no need for cross l communication between the three groupsisince they share no common, in-line design responsib-ility . . . The Board concludes that the Appli-cants have adequately defined and documented the MOTION TO REOPEN THE RECORD

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, responsibility and paths of communication be-tween . . . the pipe support design groups. No NRC regulation has been violated.

After the issuance of the ASLB's December 28, 1983 Memorandum and Order, counsel for Texas Utilities attorneys filed a series of motions for summary disposition, together with affidavits (primarily from Mr. Finneran). During the course of submitting these various affidavits, Mr. Finneran and other affiants, again, materially mis-led the ASLB by stating that each of the three design organizations, ITT-G, PSE, and NPSI, had " separate and distinct responsibilities for the design of pipe supports" and all design changes during con-struction are " returned to the original designer for correction and rechecking. . . . See Affidavit of D.N. Champman, J.C. Finneran, Jr., D.E. Powers, R.P. Duebler, R.E. Ballard, Jr., and A.T. Parker Regarding Quality Assurance Program for Design of Piping and Pipe Supports for Comanche Peak Steam Electric Station, dated July 3, 19-84, at pp. 13-and 36. At the time the affidavit was sworn, Mr. Fin-neran and others knew that the statements contained in the affidavit

- were false.

3) As detailed in the briefs appended hereto as Petitioners' Ex-hibits F and G (briefs filed by S.M.A. Hasan before the Secretary of

-Labor), false and perjurous statements made by Texas Utilicies_vit-nesses_during the course of a section 210 proceeding threaten the safety of the Comanche Peak facility by calling into question the in-tegrity and competence of Texas Utilities management.

In Exhibits F and G, Mr. Hasan charged Texas Utilities and Brown

& Root management with employing a fraudulent scheme to certify the pipe support system at Comanche Peak with multiple sets of design cri-teria. As detailed therein, the three pipe support design organiza-MOTION TO REOPEN THE RECORD i

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3 tions then employed on site (ITT Grinnell or "ITT-G", NPS Industries or "NPSI", and Pipe Support Engineering or "PSE") engaged in open and notorious violations of 10 C.F.R. Part 50, Appendix B.

3. 10 C.F.R. 62.734(a)(3).

Petitioners satisfy 10 C.F.R. 52.734(a)(3) for the following reasons:

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1) Had these petitioners presented the material herein contained, ,

when the record was still open, they would, in all reasonable probabil-ity, been granted leave to intervene.

2) Had this tribunal known of the payment of money to witnesses not to testify before this board and the payment of money to C.A.S.E.

ant to their counsel not to raise certain issues before this board; this board, these petitioners would have been allowed to intervene.

3) This board would have, in all probability, granted these pe-tioners' motion to intervene, and would have, in all certainly granted same to the aforement-icned Lon Durnam, had the facts concerning the alleged perjury set out in detail in Exhibits F and G been revealed to the Board at the time of Mr. Burnam's hearing on July 13, 1988.

These facts, not known to these petitioners, at that time, were known to some, if not all, of the parties appearing before the Board on July 13, 1988. Counsel for NRC staff, for example, knowingly re-mained silent rather than reveal to this ASLB that NRC staff had coun-sel appearing before the ASLB on July 13, 1988, and had knowle'.ge of the perjury-allegations contained in Exhibits F and G. To-vit, NRC staff was in possession of Exhibits F and G by April, 1988.

Counsel for C.A.S.E., likewise, failed to inform the Board of this information. Both the NRC staff's and C.A.S.E.'s failure to l

inform the Board was inviolation of long-standing Board orders to keep the-Board informed of any relevant information. Counsel for Tex-MOTION TO REOPEN THE RECORD . . .- . -

M- as Utilities took an even more aggressive role in misleading this Board about the existence of perjury allegations (Exhibit F served on Texas Utilities counsel in February and Exhibit G in April,-1988).

In'the words of counsel for Texas Utilities:

"{We] have, as stated on the record today, a suspi-cion of perjury. We know of no such evidence. We strongly deny any circumstances, and we vill ask for accountability outside the confines of these proceedings."

Hearing Transcript at p. 25247 (emphasis added).

Beyond the perjury allegations contained in Exhibits F and G, C.-

A.S.E. had, itself, alleged that Texas Utilities and its attorneys regularly submitted " material false statements" to this ASLB. See e.g.

CASE's Supplementary Response to Applicant's Interrogatories to " Con-solidated Intervenors', dated July 6, 1987, at pp. 3-4. Petitioners hereby attach, marked Exhibit H, the same. C.A.S.E.'s allegations regarding the regular submission of l' material false statements" con--

sittutes allegations of perjury, in that many of the statements were made un' der oath. A reviev 0; this C.A.S.E. pleading indicates that C.A.S.E. had identif.;d to additional false statements made by Texas Utilities in connection with the Hasan v. NPSI, et al., 86-ERA-24 case. 'Id., at p. 12.

Furthermore, C.A.S.E. alleged in a July 8, 1987 pleading. filed with'this Board that facts surfacing during the hearing of the Hasan case were:

. . . of such potential significance to both the operating license proceedings and the construction permit proceedings that Applicants should voluntar-ily provide copies of all pleadings, documents, etc.,

in that case to the Licensing and CPA Boards. Ap-

_plicants' failure to do so . . . is considered in the 0.L. and the CPA hearings. . . .

MOTION TO REOPEN THE RECORD l 1 - - - - . . . . - _

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. . . CASE also believes that Applicants should nov voluntarily provide copies of all pleadings, documents, etc., . . . regarding matters such as this which are so obviously covered by the. Board's oft-repeated and numerous Orders that Applicants are to keep the Board informed of potential sig-nificant information." July 8, 1987 letter from CASE to the ASLB, at pp. 2-3.

A copy of this letter is attached hereto marked Exhibit I.

In light of the NRC staff's, Texas Utilities' and CASE's failure to notify the Bonrd of the Hasan allegations raised in Exhibit F and G, and given the " Board's oft-repeated Orders that Applicants are to keep the Board informed of potentially significant information," pe-titioners would, and should be granted leave to reopen the record and to intervene, so as to keep the Board informed of the perjury and other allegations raised in the Hasan-proceeding in light of the fact that all of the previously admitted parties could not be relied upon

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to do so and actually vent so far as to cover-up during those hearings and the July 13, 1988 hearing of Mr. Burnam. Petitioners submit, as further evidence of the unreliability of the intervenor CASE, marked Exhibit J, the Secret Settlement Agreement between CASE and the Ap-plicant, as well as an affidavit from a former board member of CASE.

All of petitioners' exhibits are attached hereto, incorporated by reference, the same as if fully copied and set forth at length.

W11EREFORE, PREMISES CONSIDERED, petitioners hereby request that this Board re-open the record and grant them leave to file their Mo-tion To Intervene, granting them status as the same.

Further, petitioners will file, within 45 days, all necessary af-fidavits and other documentation, including lists of potential witness-es, concerning the above innumerated as well as additional safety al-legations they intend to rely on before this tribunal.

tOTION TO REOPEN THE RECORD i

Respectfully submitted, SANDRA LONG Dnh dba' DIS O ABLE WORKERS OF COMANCHE PEAK OTEAM ELECTRIC STATION, pro se 1078 Wellington, #135 Ottawa, Ontario K1Y-2Y3 Petitioner R.

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MICKY DOW, posy 1078 Wellington, #135 Ottawa, Ontario K1Y-2Y3 Petitioner CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing Motion To Reopen The Record was sent to all parties to the original proceeding, by Federal Express courier, at the last known addresses for each on this the 20th day of November, 1991.

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Plii n t9 f s' STRICTLY CONFIDENTIAL Ebchibit A UNITED STATES OF AMERICA BEFORE THE U.S. DEPARTMENT OF LABOR

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JOSEPH MACKTAL, )

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Complainant, )

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ERCWN & RCOT, INC., )

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Respondent. )

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SETTLEMENT AGREEMENT

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WEEREAS Mr. Macktal's employment with Brc in & Rect, Inc.

(" Brown & Root") terminated on fanuary 2, 19 6; WHEREAS Mr. Macktal has instituted the abcVe-captioned action against Brcun & Root before the United States Department of Labor alleging that his termination violated Section 210 cf the Energy Reorganization Act of 1974, 42 U.S.C. S 5851

("Section 210");

'WHEREAS the dispute between Mr. Macktal and Brown & R :t has been amicably resolved and Mr. Macktal new desires tc with--

draw his ccmplaint against Brown & Rcot, without admission of liability by Brown & Root, Texas Utilities Company and/or the other owners of Ccmanche Peak Steam Electric Station ("Ccmanche Peak"), or the SAFETEAM program, or the attorneys, related 3

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ccmpanies, successors, assigns, officers, directors, managers, agents, and employees of the aforementicned companies, organi-

=ations and programs (all of which entities and individuals are hereinafter collectively referred to as "the Comanche Peak companies, organizations, programs and individuals");

NOW, THEREFORE, in consideration of the mutual premises contained herein, the parties acrec as follows:

1) This Settlement Agreement does not amount to, and shall not be construed as, an admission of liability or wrcngdoing en the part of any of the Ccmanche Peak ccmpanies, crganiza-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 (attached hereto as Exhibit A) of all the Ccmanche Peak ccmpanies, organizations, programs and individuals as defined above frcm any and all liability arising out of er relating to Mr. Macktal's employment with Brcwn & Root, the termination l of his employment on January 2, 1986, or his resignaticn t

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frcm his position with Brown & Rcot.

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3) Mr. Macktal's representatives in the above-captiened l

action, Mr. Anthony ". Ec! se n and Ms. Billie P. Garde (including Trial Lawyers for Public Justice and the Govern-P!i! stlf f s' Exh; bit A l 2 '7 (

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Plai n tif f s' STRICTLY C ..PIDENTI AL {Xh!bll A L ment Accountability Project, the organizations of which Mr.

Roisman and Ms. Garde, respectively, a: e a part and through which they came to represent Mr. Macktal), hereby agree that they will not call Mr. Macktal as a witness or join Mr. Macktal as a party in any administrative or judicial proceeding in which either Mr. Roisman, Ms. Garde, Trial Lawyers for Public Jus' ice or the Government Accountability Project, or any combination of them are now, or in the future may be, counsel or parties oppcsing any of the Comanche Peak companies, organi:ations, programs or indi-viduals as defined above; nor will Mr. Roisman, Ms. Garde or their respective organi:ations do anything to suggest or otherwise to induce any other attorney, party, admini;tra-h p tive agency, or,Adminipersti~ie or judicial tribunal to call s 'N

,, . t 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 t ,

if served with compulsory process seeking to compel his N!'

S, appearance or joinder in such a proceeding, he will ,,

immediately notify the undersigned representative of Brcwn

& Rcot, 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, i Pim, n uf f s.

i to resist such compulsory process. ,, . . % : .

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STRICTLY CONFIDENTIAL The foregoing provides the entire AGREEME:1T between the parties and this AGREEME :T cannot be modified except by written stipulation signed by each of the parties hereto.

._O_1_,, iLw e-Billie Pirner Garde for Joseph Macktal, the Government Accountability Project, and herself s

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/Kndn6ny . P.oieman for Josep !ackthl,TrialLawyers for u ic Justice, and himsel.

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l a $f%f Richard K. Walker for Brown and Root, Inc.

This 2nd day of January, 1987.

Plai ntif f s'

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1, Plal n tif f s' SETTLEMENT AGREEMENT- Exhibit A i

This SETTLEMENT AGREEMENT dated as of , 1988 Hoyis _h5 (hereinafter ' Poli::ia),

by and between LORENZO MARIO POLIZZI KAURINE ELLEN POLIZZI, his wife and NATALIE POLI 22I, his minor her mother and legal daughter, by Maurine Ellen Polit:1, guardian (hereinafter "Co-Plaintiffs") and GIBSS L HILL, INC.

(hereinafter *Gibbs & Hill").

WHEREAS:

A.

On or about May 12, 1987, Polit:i filed a complaint with the U.S. Department of Labor, Emplcyment alleging that Standards Administration Wage L Hour Division, practices in Gibbs L Hill eng aged in discriminatcry emplcyment 42 U.S.C. S 5851 violation of the Energy Reorganizatien Act, (Case Nc. 8 7 - ERA-3 8 ) (hereinafter the " DOL Proceeding").

B. The U.S. Department of Labor, Emplcyment Standards Administration Wage & Hour Division conducted an based upon said investigaticn, investigation and concluded, Poli:r.i was that there was probable cause to believe that discriminated against in viclation of the Energy Eecrganization Act.

- C. Gibbs & Hill filed a timely request for a hearing with the Chief Administrative Law Judge, United States 04 :a Hd 9- A0N S8 03At3338 S7V3ddV 'H!WGV 30 30lli0 809v7 301H3W1 Erd 30 S'D Plai ntif f s-c.

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a minor, as set I settle.telt of the claims of Natalie Polizzi, forth herein, 7, Poli:ri agrees that he will not voluntarily cooperate with or testify on behalf of any entity or individual who has or may file charges of discrimination or wrongful employment practices against Gibbs L Hill or TUGCO, or their respective parents, affiliates, subsidiaries, successors or the Atomic Energy assigns, under the Energy Ecorganization Act, Act of 1954, as amended, or any cther federal or state law, rule, regulation or theory, nor will he voluntarily testif y in or otherwise participate in any proceeding or investigation before any involving the Ccmanche Feak Steam Electric Station, including, but state or federal court er administrative agency, not limited to, licensing or safety proceedings or investigations bef ore the Nuclear Regulatory Commission and/or regulatory or rate proceedings or investigations before the except ar public Utility Cor. mission of the State of Texas, required by lawful subpcena; provided, hcwever, that nothing in the foregoing paragraph shall in any manner be interpreted to prevent Poli::i from informing the Nuclear Regulatory Co. T .miss on of any and all saf ety concerns he may have re: ating i

to the Comanche peak Steam Electric Station.

8. Gibbs & Hill's personnel policy applicable tc all employees, present and former, provides that it shall release a

no information requested by a prospective employer without

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15. 'Gibbs & Hill shall undertako- in substantially the

.e execution by TUGCO of a General Release' Said General Release shall f orm attached hereto - as Exhibit C. ) the conditions set not be deemed effective unless and until d (b)(a the forth in paragraphs 5 and 6 herein are fulfilled ferred to anin pjz; 0(te r.

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General Release of Poli: i and Co-Plaintiffs c.*.' re

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paragraph 13 herein- ic delivered to TUGCO.

the parties have hereunto set I!i WIT!iESS WHEREOF, on this 25Y day of M988.

their hands and seals A _.

LORES;0 MARIO POLIZZI

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Exhioit 3 1M

'O I allegations to the 148C Staf f during a transcribed confidential ecnference and during a confidential en-site Ncnetheless, the NEC inspection of the Cenancho Peak site.

failed to adsquately addrcos these cencerna. I therefere believe that these concerns centinue to pose an_ unnecessary health and safety risk.

5) n additien, I have cencerno that were net raised with the NRO staff or Licensing Scard due to the restrictive terms of a socrat settlement agreenent entered into betwoon Texas Utilities anf my at crneys, Sillie Garde and 7:ny Ecisnan, These concerno include:

a) The use of Kapten wiring and terminaticn kits (including the design and installation of electrical penetrations)I b) SATETEAM's identification of ccnfidentia'.

whistleblowers and the harassment and intimidatien of erpleyccc who brcught cafety concerns te nanagement e A c_. .e.s.u. ,,

a...

4/c .

c) The ultra-vulnerability of key safety systems; d) Casign prcblems related tc back-up cafety syste:s; e) != proper atto: pts to allenco witnceses and purpress infernaticn beferc the NEC;

) SArztEAM's participatien in and cover-up of GafCty colicorns.

I was

6) Af ter bringing saf oty concerno to S AFETEAM, de=oted and centinually haranced and inticidated by e-PliiHtif f s' *

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=anagement, culmina-ing in a ccnstructive dischargo en Janua:~i 2, 1986.

7) Cn Tebuary 3, 1966 I filed a cc: plaint under Section

10 Of the Energy Roergini:stien Act against Drewn & p.ect and Texas 'Jtilities with the Depar*.nent Of Labor, known aa 6 6-EP,A- 2 2 . I was represented in 86-EF.A-23 by Billie P.

Gardo, An*heny 2. R:ic an, Government Acccuntability Pr

ect ..

(GAP) and Trial La.fera for Public Just;0a (TLPJ) . Thef also stated to me that they veuid be representing ne bef ore i I

the SEO Licensing Scard in Ostters related :: C::anche Fea)

" and befcco tne Texas Erpi:y ent C : issi:n (TEL hearin; regarding unempicytont cenpensati n (upen inter atien and belief this agreement is centained in a signcd representation agreement). In viciatien cf their express agreement to represent =c before the TEC. both Mr. Reistan and Mc. Garde failed to prepare for and at:cnf. tne hearing.

8) n early Terruary, 1926, vas Old by Ms. Garde and Mrs. Ellis en a nurler of occaciens that ! wculd be called _

as a CASE Witness hef ero the ASLd.

9) In 19S6 : nade a sorien of c:nfidential transcribed safety, disclosures te members of the trRC staf f. I did nct f ool that the IrRC staf f preporly addressed the safety concerns raised at that tino and felt that they would nct I wanted to testify bef era thc n

do so anv.tico thereafter.

' ASLS about =v. safetv. concerns becauno I came to believe that I had to bypass the liRC Staff bureaucracy and go directly t the ASLB if my concerns were to be adequately resolved.

10) In 1986 : nado a series of transcribed confidential safety discicaures t0 NRO Stat . I believe that NRO Staf f 3

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c) If ! did n:t a :ept the cettlement and I did not ccre up with the $1:,000, they veuld withdraw ao ecunsel (as they h:d already dene in my unempicyment hearing), At that ti e both Ms. Gardo and Mr. Reisman knev i was unempicyed and indigent. To the best of y

reccliection, the terms of representation expressly stated that expenses vere net due and payable until after the case was settled. Yet, Billie Gardo and Tcny Rciscan were domanding : ney to continue with my capo.

GAP, TLF0, Billie Garde, and Tcny R0iGran agrood te reprccent no kncving tnst i was unonplcyed and unab;c to afferd an at crney.

16) Af ter cens;derabic pressure : agreed te settle ny case for $35,000. undsrat:cd that the $35,000 settle =ent offer Oc te twc separate agreenents between Brcwn & Rect and syself.

Tne first settlement veuid be fer $15,000 te be j

j paid te me, and th a sec;nd settlerent would be paid tc CAP in the encune cf 9:c ,000.00 te cover "expennoc" af ter j

the caso was resolved.

17) : was interred by ny attorneys that the Judge had ordered the parties :: execute tuo settlement within 30 i days.

i j-

18) Brcwn & Ecet's att:rneys did nct attempt to execute the cettle=ent within 30 dayc. Cn 0: about December 26, 1986, I inferred Billie Gsrdo that no icnger wichod te settle my case and that I vented to procood with the trial.

19) On or abcut Occcaber 26th and 29th, 1986, I was; a) info:r.ed by my attcrneys for a second tino I did not accept a cottlement had to pay $12,000.co if 5

Plalntif f s' I Y 0 0 D C l{ U b

,- . . ~ . - .. . . ..

Phai n tif f s' Exhibit 8 I I eA 3]

I Ma, Garde and Mr. Reisman were negetiating; b) tcid that if I did not accept the terms of the settleuent (Vhich : had net even scon) 1 vould bo sund ter breacn cf centract, veuld face saricus financial hurdens for tne rest of y life, and that vould ae billed by GAP fer $10,000.00. Mo. Garde and Mr.

Reisman alsc warned that Brevn & Rect Vould Sue 20 fcr refusing te sign the settle:ent and that they would net represent =e if such a suit ceturred.

20) Ncnetheless, I directed ny atterneys te step further settic:ent negotiations and prepare fcr trial. 9 atterneys refused tc felicV thia instructicn.

21) Cn Dece:her 26, 1986, ! spcke ever the telephone with Dillie Gardo. The fclieving are verifiable exerite cf a telephene conversati0n between Ms. garde and rysel* :

am net cer.;itted tc any kind Josepn J. Macktal:

of a settlement whatscover. . I'm gcing to the papers Tuesday is nc (and) bicwing th.s wnele thing vida cpen, . .There S00t1C:000...

Elliie p. Garde: Ycu dcn't have that cption any Orc. There is a Settle:Ont.

! ain't signing...!

Macktal: Nc there isn't.

don't vant a settienent... d:n't want you te sign any kind cf a acttleccnt agreeront.

Gardo: Then ycu better be prepared te pay GAP the OXpenDO Of...,

Macktal: Whatever it takoa...I'm nct settling a with them. . .I'm genna expcce the whole thing in the Papor.

6 Plal n tif f s-Exhibit 8

w-Plalntif f s'

, Exhibit B 41 W Vi Garde: And that's verth $15,000.007 Macktal: Ysp, that's worth it.

Gardo: I think you're makin; an abr,olutely insano cf decisicn...[T, hey're genna sue ycu fer broach s ot tl ene nt . . . and th at. ' ' *. =can ycu're genna havo tc get lavvers.

Macktal: 1.et the: sue to...

Macktal: I'n not breaching the nettle cnt agreement. There was ne settle:-ent agreetont...They did nct

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tc us. We cculdn't neet pay r lc

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After speaking with P. s . Garde, but not kncVing 30) the Secretarf had requested to soo a copy o# the I
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~ll tne Secretary requesting that the settlerent be set acido.
l (A truc and ccrrect c0py of this c.c*,icn is attached as l 1. x.w. 4 .. w a . 4).
~~21) vrete the attached .ction cut cf desporation l~~
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t u va,n so i see no l -V san reanuc o ".4 v.a D ':5 i (415) 974-0514 FTS 8-454-0514 ( %./
In the Matter of JOHN C. REX Complainant CASE NOS: 87-ERA-6 87-ERA-40 g gp
~~v. e er EBASCO SERVICES, INCORPORATED 3~~
4 Nh x%);
Respondent N rn y N
b53 u #EE ac eqq C Er-g- gg Billie Pirner Garde, Esquire 4" GL Government Accountability Project, WI 104 E. Visconsin Avenue Appleton, WI 54911-4897 For The Complainant Robert Guild, Ecquire Govern =ent Accountability Pro ject , SC 314 Pall Mall Columbia, S.C. 29201 For The Complainant Lawrence B. Funderburk, Esquire Scot Chase, Esquire Firm of Funderburk and Funderburk 108'O Riviana Building 2777 Allen Parkway Houston, TX 77019 For 'he Respondint Samuel E. Rooper, Esquire Taymond L. Kalmans, Esquire 1 Joseph G. Galaga:a, Esquire Firm'of Neel Hooper and Kalmans 777 Fost Oak Boulevard - Suite 332 Houston, TX 77056 For The Respondent BEFORE: ROBERT L. RAMSEY Administrative Law Judge RECOMMENDED DECISION AND ORDER _ p{gjggffg, BACLCROUND <hibit C This proceeding commenced when counsel for co m plaDepartment i na n t , John of U.S.
Fex, mailed a complaint to tne Area Director, Labor, Wage and Hour Division, 237G in3 ranch, Room 2101, Heuston,
- - - - - - _ _ - - _ _ - _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ '-- '- - - ' - - - --,_._._m_
Plaintif f s' Exh! bit C
'[ e x a s , in that complaint, Rex alleged that Ebasco Constructors, had discriminated agsinut him in violation of I nc . ("Ebasco") Energy Reorganization Act, 42 U.S.C. 55851 Section 210 of the
("section 210" or ERA) by terminating his employment as a IIcating, Ventilation and Air Conditioning ("HVAC") craft supervisor at the Though South Texas Nucle.r Power Plant ("STP") in 12, Bay 1986, Cit /, Texas.
the e n pl a i n t
' effective September the termination was a lle ge d that Rex did not receive notice of his termination until As the envelope which forwarded his c o m pl a i n t September 21, 1986.
was postmarked Oct:berbeen 22, 1986, the Area Director determined that filed witbin thirty (30) days of the the complaint had not alleged discriminatory event, as ressired by Se:tica 110(b)(1),
ard, accordingly, concluded that he did not have jurisdiction to The Area Director conduct an investigation of the conplaint.
by letter dated not i f ied Rex's counsel of his determination N o v e tt b e r 7, 19 8 ') .
Complainant timely requested a hearing on the complaint to Director regarding the review the determination of the Area timeliness of the complaint and that request for heariny, Law Judge Case Joel No. R.
87-ERA-6, was assigned to Administrative Williams. Judge Williams issued a Preliminary Decision and Order that Fex's on Timeliness of Complaint in which he recommended be deemed timely file? and that the merits of the complaint On April 13, 1987, complaint be investigated (" bySecretary")
the Arc. Director. adopted the findings and the Secretary of Labor conclusions of Judge Williams and isaued his Decision and Order of Remand to the Ware and haur Administrator, directing the th6 Vage and tL e r i t s of
)
llour Administrator to conduct an investigation of Rex 's c om pl aint .
Rex filed an amended complaint ith the Area Counsel for Director and Chief Administrative Law Judge in which Rex alleged that after being reinstated by Respondent at another facility, he had again been laid off from ESasco on March 3, 1987 in retaliation for having filed his original Section 210 complaint.In accord with regulation, 29 C.F.R.
the Secretary's vrder and te appropriate
' %24.4, the Area Director conducted an investigatten into the merits of Rex's original and amended complaints. 11pon c om pl e t ion of the investigation, the Area Director issued his determination letter dated July 7, 1987 1- which he concluded that Rex's termination by Ebasco from lin:;, the STP nor was had not Rexdue been to Rex's involvement
" blacklisted" be in Safeteam Ebasco for Concera S0 having ffled a Sectfor 210 c o mpl a i n t .
hearing on the merits of Complainant timely requented a forn, his complaint and the ttatter was assigned to Administrative for hearing Law on the matter Judge James J. Butler who scheduled Washington. On Motion by IS, 1987, in S e :. t t l e ,
September trial setting was continued and the site for Coeplaim.nt, the Thereafter, the hearing moved to Houston, Texas.
conducting for C om pl a i na nt undertook estensive discovery, commencing with C o m p l a i n a n t ' r, First Set of Interrogatories and Request for Documenc Production which contrinej some 45 Interrogatories, most with mul t i pl e sub-part* and a requast for voluminous documents.
Plal n tif f s' L*counsel-------- -:- Shl bit C
' Plal n tif f s' Exhibit C No. M inquired into matters involving William Interrogatory
Billy" Rester unrelated to C cat p l a i n a n t ' s termination of employment from Respondent and to which Respondent objected to providing an ansver. Rester had been Ebasco's HVAC manager at the STP and was the individual uho had made the However, selection I t. of errogatory Rex to beNolaid . 31 offwas in a reduction ef force at the STP.
personal business activities in catering directed at Rester's canagement lunches for Ebasco and in catering an Ebasco company party.
'ing de posit ions C om pl a i n a n t continued his discovery t' ,
a- :he STP; Donald of Joseph Taylor, Ebasco's former site c a t. c' William Ure11, Lismukes, Ebasco's HVAC Superintendent at t ,
James Blackwood, Ebasco's site personnel manager at the STP; .
Elasco'o former mechanical manager and Unit 2 superintendentRester, at the Complainant also noticed for deposition William STP.
hovever Rester .eportly did not appear to be deposedRespondent's at the time set out in the notice. According to and place only cou n s el , in those depositions, counsel for C o m pl a i n a n t not inquired into Rester's catering activities but also inquired into Rester's activities while he was assigned to a constructionarranged project in Washington State, including rumors of Rester having
" se x parties" and rumors of Rester having been involved in illegal drugs, none of which appear to have any relationship to the charges complaint or r.m e n d e d against the Respondent contained in the complaint.
Complainant also sought to compel Respondent to provide documents ' elating to investigat ions conducted regarding Rester's catering activities and allegations that Rester hadtomisappropriated providing such Respondent objected materials from the STP.
6 documents as tney were not relevant to Complainant's Section 210 allegations and vere, in the opinion of Respondent, being sought for the purpose of harassing Respondent. Complainant continued to to his case and Judge assert that such documents were relevant In complying Butler ordered Respondent to provide those documents. Respondent provided Judge Butler's discovery order, with Com pla i nant with a copy of a Eafeteam Report on Concern No. 11069 which involved an investigation into allocations of improprieties of Rester at the STP.
noticed for deposition James Coiger, an Complainant also 14, 1099, e:ployee of H:uston Light and Power Cc.pany, for Januar; and included a subpoena duces tecum for Geiger to bring to the involving including Safeteam reports, deposition all documents, either Complainant or Rester. Complainant concelled the scheduled Geiger and never sough: to reschedule that deposition for deposition or significantly, to r.u b p 3 e n a or otherwise obtain the records sought from Houston Lighting and pcuer C om p a ny upon which Complainant later allegedly determined he had no provable case.
Complainant also sought to depose the president of Ebasco, Robert Marshall, and the financial officer of Ebasco, Lynn pett.
Respondent moved to quash those notices on the grounds that,nneither involved in the layoffs of Rex o ,r d Marshall nor pett vere tein i s'
Ptal ntit f s' ,
- Exhibit C ,
cither have any knowledge regarding the layoff of Rex, Counsel for Rex reportedly asserted that both Marshall and Pett had knowledge of Rester's cate ring activities and that Marshall had knowledge of Rester's activities at the project in the State of Vashington, neither of which subjects vere pertinent under the ERA. While Respondent contended that such information would not be relevant to Rex's Section 210 action, counsel for Rex still sought to compel those depositions be taken and Judge Butler, in his discretion, refused to quash the deposition notices.
Respondent sougb* to depone Complainant ,n three separate occasions, however, each time that Respondent noticed Rex for deposition he reportedly was not available to be deposed, allegedly due to business travel commitments. Thereafter, Judge Butler indefinitely postroned the hearing untti such time as Rex submitted to being deposed. Following the cancellation of the March 22, l';88 hearing date, neither Complainant nor Respondent undertook further discovery. 1towever, in September, 1988 3 Rex instituted a Texas state civil action against Respondent for wrongful termination.
Once the instant Section 210 case was a s s. i g n e d to Law Judge Robert L. Ramsey and a hearing was AJministrative scheduled to be held on April 5, 1989, Respondent again noticed Rex for deposition and scheduled that deposition for Houston. Counsel for Rex announced that Rex would not go to llouston to be deposed unless Ebasco paid his expenses to travel to Houston. Respondent and obtained an order from the presiding judge then sought On the day of c om pe lli ng Rex to attend the noticed deposition.
Rex's deposition,- counsel for Rex, though netified that the deposition was to proceed day to day until completed, announced that she was unable to stay for the completion of Rex's deposition, whereupon the taking of Rex's deposition vae suspended.
Thereafter, Com pl a i n a n t resisted Respondent's Notice of Continuation of Deposition and moved to quash the Notice.
It this regard, in her oral motion to quash notice of continuation of Complainant's deposition, counsel for Complainant alleged it was nec essary for her to leave the original deposition prior to its c om pl e t i on because she had an appointment about sixty miles from Dallas, Texas early the following morning, and the only flight she could catch from Houston to Dallas was at approximately 5:30' p.m. A revits of the O_fficial A_irline Guide indicates, however, that ther. Vere 24 flights from Hounton to Dallas (225 air miles apatt) that evening between 5:30 and 1 0 : 30 p.m.
At the hearing held on April 5, 1989, when the availability of numerous flights between Houston and Dallas was pointed out, Mr.
Guild, co-counsel for c om pl a i n a n t advised that he had been advised co-counsel (Ms. Garde) that during the evening and morning by following Rex's deposition, the weather "was extremely hazardous, there was ice and snow on the roads between Dallas and that Glenrose. Texas . . . and that it took her several hours to travel late at night and shedi dn' t arrive untti 1:30 [a.tc.]". (TR 42,43).
Counsel also advised that "there had been a closure of the airport previously that day which backed flights up . . .
Accordine
' Ni nlif f. s'to
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~~i. Plai n tif f s' O hib h C i t~~
e the best information available, none of those 29 scheduled flights According to official i was cancelled due to weather conditions. for the area, attached U.S. Government aviation weather records bereto, the wcather at and between Houston and Dallas between 12: 46 t a.m. and 11:57 p.e. March 6, 1989 was well above the minimus for airline operations, that the area waa covered by high pressure, there was no precipitation, eloud cover varied from broken to ;
clear, visibility averaged 15 miles and the wind averaged approximately 10 kts (approximately 11 5 mph) with the highest recorded wind at ilo u s t o n llobby Airport of 20 kts gusting to 26 kts at 2150 p.m. T em pe r a t u r e varied from 20' to 47' r over the area during that 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> pettod. _
These official weather observations are at variance with counsels statements.
In the interim, counsel for Rex sought to depose three other individuals reportedly for the purpose of te nk i n g an inquiry as to
, job availabilities for which Rex might have been qualified ,
following his layoff from Ebasco. In that connection, Respondent eade th e following individuals ava'.lable to Complainant 's counsel; -
Doug Barrett. Ebasca' s corporate personnel managert Mike Strehlow, ;
the manage r ' of IIV AC engineering for Ebasco Services, Inc. at the ,
Comanche Peak Nuclear Power Projecti and flo w a r d Hildebrandt, the sit e -personnel manager for Ebasco Services, Inc. at the Comanche Peak project.
-As Complainant had not continued to seek to depose James Ge i g er , not obtain all Safeteam- reports involving Rex, Respondent noticed Ge3ger to be deposed on April -3, 1989, and subpoenaed Geiger to bring Safeteam reports relating to Rex.
agreed to Il o w e v e r , _ a r.
provide both Hou s t on Lighting and~ Power Company Re s pondent- and Complainant with copies of the Safeteam files and did'so.on April 3, 1989, the-deposition of Geiger was cancelled.
On April 5, 1989, this matter was called for hearing by Judge Ra sey at Houston, Texas. At that time, counsel f or ' Complainant sought leave to file his Second Amended Complaint, Complainant's .
a n n ou nc e d purpose in- seeking leave to file the Second Amended Co: plaint was_that the Second Amended Complaint vould deprive the Department of jurisdiction over this action because that 210.
complaintAfter did not allege any activity protected by Section hearing argument of counsel, Judge Ramsey, over Respondent's objection, granted Complainant's motion for leave to file his Second Amended- Com pl a in t , but ruled that the Second Amended Complaint did not deprive the Department of -jurisdiction .to hear the natter. Judge _ Ramsey then- orde red Complainant to go forward proof, _whereupon Complainant requested a- continuance.
with his This reque s t - wa s denied and Complainant was ordered to put on his proof. Without offering any evidence or calling a single witness to :estify, Com pl a i n a n t ' s counsel announced that they could not prove the charges of discrimination against Respondent, n o r 'c o u l'd the Complainant offer any evidence in support' 'of ' tho se charges.
The Complainant then rested his case. Respondent moved for j ud gme n t and for leave to file a motion to recover its attorney's Plai ntif f s' Shibit C
Plai ntif f s' Exhibit C . r fees and costs incurred in being required to defend this matter.
The motion for judgment was taken under advivement and leave to file a motion to recover costs and attorneya fees was CRANTED.
Because Complainant, though or given the opportunity to do so, evidence in support of his failed to offer either testimony claim of discrimination against Respondent, he has failed to make out a prima facie case and, in fact, failed to produce any evidence s whatsoever tending to show a violation of the ERA. and Respondent is entitled to judgment in its favor, which is hereby GRANTED.
SANCTIONS Under date of April 14, 1989, counsel for Respondent filed a es t i on and memorandum in support of his motion for award of costs
'J n d e r date of April 27, 1989, Com pl a i na n t 's I
and attorneys fees.
counsel pursuant-to leave grantedresponse, filed a response in opposition Complainant's counsel to motion. In this te s ponde nt s requested a hearing on the issue of imposition of coots and fees.
I am of the opinion that counsel's response hearing adequately on- the issue addressed is not Respondent'sbut would merely cause additional delay and expense. motion and that a necessary, The Complainant's request for a hearing is hereby DENIED.
In addition to setting forth protected activities. Section 210 U.S.C. $$851, charges the Act,_ 42 of the Energy Reorganization investigate charges of of Labor with the duty to Sec r e t a ry and to issue an order either discrimination under Section 210 The Secretary's order
. pro viding .relie f or denying the complaint.
can only be issuedIn "on the recordwith accordance after thenotice and of mandate opportunity Section 210, for public hearing."
the Secretary has promulgated regulations establishing procedures c om pl aint s under federal the handling of discrimination
~~24. Those for~~
's t a t u t e s . See 29 C.F.R. P a r t' employee protection regulations provide for an investigation t o -be conducted by the '
Ad inistrator of Wage and Hour Division, and the right of a narty dissatisfied with the determination of the Administrator to request s hearing oa the record before an Administrative Law Judge ("ALJ").
thile Part 24 sets forth time constraints and the situs for such hearing, part 24 does not provide for any discovery or delineate a ny to f the powers of the ALJ, other than the power It thus to appears dismissthat the c o: pla i n t or render a recommended de cision. cases to_ be speedily-Ce n g r e s s intended these "whistleblower" investigated and disposed of with a minimum of legal maneuveringa actual- practice. however, its consequent d_e l a y s . In-with ecuplainant who desires discovery _ may waive the speedy disposition requirement and under take The discovery power to of the the extent ALJ to authorized compel discovery by the ad inistrative law judge.
and oversee the proceedings is established by the Rules theofOffice Tractice of and Procedure for Administrative Hearings Before at by the Secretary, Administrative Law Judges promulgated 29 C.F.R. Part 18 (hereinafter " Rules of Practice").
The Rules of Practice set-forth rules generally Law Judges. applicable to Among proceedings conducted before Administrative Plai ntif f s'
+ Oheit C
. Phi n tif f s' dis!t C 4
other te a t t e r s , the Rules of Practice set forth the qualifications for attorneys to practice before an Administrative Law Judge, 29 C.F.R. $18.34(g)(1), and sets forth standards of conduct for parties and their representatives, 29 C.F.R. $18 36. The Rules of Practice plainly grant the Administrative Law Judge the power to suspend or bar a party or attorney frotn the proceedings. See
%18.36. It is beyond question that administrative agencies, including the Department of Labor, have the authority to promulgate rulea for admission and practice before the agency and the power to sanction attorney's for violation of those rules. Touche Ross A Co. v. SBC, 609 F.2d $70 (2nd Cir. 1979); see, rcnerally, J. stein, G. Mitchell and B. Me:ines, Administrative Law, vol. 5, $42.02, et seq.
The Rules of Practice do not specifies 11y provide for the award of attorney's fees and costs incurred by a party in defending a frivilous suit or vexatious conduct of the opposing party or counsel. The Rules of Practice do provide, however, that the Rules of Civil Procedure for the District Courts of the United States "shall be opplied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation."
29 C.F.R. $15.1. The Rules of Practice further grant to an Ad i nis t r a t ive Law judge the authority to where applicable, take any appropriate action authorized by the Rules of Civil Procedure for the United States District Courts." 29 C.F.R. $18.29(S).
Accordingly, the Rules of Practice adopt, where applicable, the Federal Rules of Civil Procedure and grant to the Administrative Lav Judge, where appropriate, the power to take action authori:ed by the Federal Rules of Civil Procedure.
The Federal Rules of Civil Procedure are applicable tc the instant situation because t$ e Rules of Practice do not speak to the issue of sanctioning parties and their , counsel for ve x a t i o u sl y _
pursuing a groundless Section 210 action. It is certainly appropriate for the Administrative Law Judge to take action authorized by Rult 11 of the Federal Rules of Civil Procedure in thi instant case due to the Complainant's and his counsel's abuse of the judicial process in an action which they now agree has no basis in fact. Aecordingly, it is appropriate that Respondent recover its costs and attorney's fees incurred in defending this action, responding to irrelevant discovery and preparing for the trial of the matter for the reasons diccussed below.
RULE 11 FEDERAL RULES OF CIVIL PROCEDURE Federal Rules of Civil Procedure, Rule 11, was originally enacted in 1937 and amended in 1933. The current version of the Rule provides as follows:
Every pleading, motion, and other paper of a urty represented by an attorney shall be ;1gned by at least one attorney of record in the attorney's individual name, whose address shall be stated . . . The signature of an attorney or party PW ndf f s'
_7 3 W t. C
Plat ntif f s'
( D.hibit C constitutes a certificate by the signer that the signer has read the pleading, l motion, or other papers that to the best j of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is varranted by existing law or a good faith argument for the extension, modification, or teversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation . . . If a 1 pleading, motion or other paper is signed in violation of this Rule, the Court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney'a fee. Federal Rules of Civil procedure, Rule 11, 28 U.S.C.A.
The amended Rule imposes stringent obligations upon litigants and their counsel. In Hale v. Harney, 786 T.2d 688, 692 (5th Cir.
1986), Judge Gee succinctly statedt. "The day is passed when our notice pleading practice - ciccumscribed only by a requirement of a subjective good faith on the pleader's part -
plus l i b e r a ?. dis-covery rules invited the federal practitioner to file suit first and find out later whether he had a case or not."
Prior to the. 1983 amendment, Rule 11 required only a subjective, good faith belief that there was good ground to support a pleading. Davis v. Vaslan Enterprises, 765 T.2d 494, 497 n.4 (5th Cir. 1985). Rule 11 compliance is now measured by an objective, not subjective, standard of reasonableness under the circumstances. Thomas v. Caettal Security _ Services, I n c ._ , 836 T.2d 666, 873 (5th Cir. 1988). Rule 11 imposes _ the fo;1owing affir=-
ative duties with which an attorney or litigant certifies he has co: plied by signing a pleading, motion or other documents (1) That the attorney has conducted a reasonabic inquiry into the facts which support the_ document; (2) That the attorney- has conducted a reasonable inquiry into the law such that the document cabodies existing legal ,
l principles or a good faith argument "for the extension, modification, or reversal of existing laws; and Pial ntif f s' Exhibit C
_a_
l
0 Plal n tif f s' .
~
4 xhiSit C It is patently obviour from the documents prior which to wereimmediately and available complainant and his counsel both to following the filing of the Complaint, that there was Despite this, no reasonable Complainant's factual basis to support thediscovery, claims. taking no less than nine counsel undertook massive depositions over a fifteen month period and required On April 5, Respondent to 1989, a he a r i ng produce a massive amount of documents. At this hearing, counsel vas held before Judge Robert L. Ramsey.
for Complainant sought and received Icave to file a Second Amended Cotplaint and represented in open court that Complainant had not engaged in any " protected activity", and that the filing of this Second Amended Complaint was for of thejurisdiction.
sole purpose of deprivingCounsel thefor Agency (Department of Labor) position by stating that Complainant attempted to explain their they had just received a series of Safeteam documents from Houston No.
Lighting and power Company including Safeteam their clientReport had not, Concern in fact, 11028 which convinced them that As noted above, Safeteam Report engaged in 11028 protectedwasactivity".
relied upon by the Department of Labor's Concern No. was no coming to the conclusion that there any protected activity, and the existence of7, which investigator in violation of 1987.
report was made known to Complainant not later than July t? a d counsel looked at Safeteam 'ieport Concern 11028 at that ti ne ,
it vould have been apparent that the complaint was ill-fconded.
Counsel for Complainant engaged inisconduct clear which that Rule 11for counsel is It specifically designed to p r e v( n t .
Coeplainant did not conduct a reasonable inquiry A into theinquiry reasonabic facts which allegedly supported the Complaint.
could not have led counsel to believe that the Complaint was well grounded in fact. Even a cursory investigation into the facts at hand as early as July 7, 1987 would have educated counsel for the Complainant as to the obvious lack of merit for the Complaint.
It ,is further clear by the nature and extent of discovery engaged in by counsel for Complainant that the Complaint was filed Specifically, Complainant's discovery for an improper purpose.
appears to have been brought solely for the purposes of harassment of Respondent, .Ebasco Constructors, Inc. or for the purposes of a civil suit wherein damages not allowable in this action could be recovered.
Rather than seeking to use discovery claim to develophad that Complainant the factual circumstances underlying the been terminated for engaging in protected depose activity, many counsel for the representatives of Complainant instead chose to
espondent who had 11ttle or no of knowledge several of as tothethe facts of the depositions, Co

plaint. During the course counsel for Complainant sought confidentialtoinformation Respondent which and was its damaging, embarrassing and confidential witnesses and bore no rational relationship whatsoever to the facts These sought to be proved in the Complainant's Section 210 action.
specific tactics were set forth in detail in Respondent's Motion on for Entry of protective Order which was (tied in this proceeding or about February 23, 1983. The scope of Complainant's discovery is reflected in Respondent's incurring travel expenses of $4,869,05 esition
(=ainly for representing the person being deposed) and defal P ntif f s'
-10 Exhibit C
Ptal ntif f s' l Exhibit C ,
I In addition, in responding to e transcript costs of $4,084.00.
Respondent spent and subpoena Duces Tecum, interrogatories literally hundreds of man-hours and thousands of dollars compiling the documents sourht by these discovery devices.
That the Complaint was prosecuted in bad faith and for the purposes of harassment or a civil suit is even more evident when counsel when the case was one looks at the conduct of Complainant 's called for hearing. Despite the fact that the case had been on file for over two and one-half years and extensive discovery to proceed, had been c om pl e t ed , counsel for Complainant when forced moved for a continuance because her witnesses were not present.
Counsel knew that the judge assigned to the case was based in San Francisco and would have to travel to Houston the to lackhear ofthismerit case.of Though counsel claimed 1989, to have learned they did of not advise the judge that their case on April 3, 3, 4, they would not proceed to a hearing in the two This in spite of the fact that all days April 1989, prior to the hearing.
parties were advised that the judge had set aside three days. April shows nothing but utter 5, 6, and 7, for the hearing. This disrespect for the judges' and opposing counsel's time, convenience and expenses. When the motion for continuance was denied, counsel for Complainant failed to call any witness and did not present one to pursue their client's claim.
piece of evidence in an attempt Instead, counsel for Complainant announced in open court that they termination, alleging that the could not prove a discriminatory information had only become available on April 3, 1989.
Rule 11 of the Federal Rules of Civil Procedure places an a f firma ti ve duty on counsel to conduct a reasonable inquiry into the facts which support the documents that they flie. Had counsel for Complainant conducted such a reasonable inquiry into the facts of this case, prior to or shortly after filing of the Com pla in t ,
and expense Respondent would have been spared the enormous time the past two and one-half to - which it has been subjected over years. This is precisely what Rule 11 was designed to protect against and, in accordance with the amended Rule, the Court is required to ? pose Rule 11 sanctions upon the finding that Rule 11 i
has been vio-.ted.
Hooper and Larry B. Funderburk
.The Affidavits of Samuel E.
fi'ed pursuant to l e a ve granted set forth that Respondent, Ebasco Canstructors, Inc., has been required to incur a t t o r ri e y ' s fees and expenses in the aiount of $77,468.53 in defending the By claim signing which the was brought and pur s ued by Com pla ina n t , John Rpirner e t; . Carde and by original First Amended Complaint, Billie Complaint, Billie Pirner Garde and signing the Second Amended John Rex, had the Guild, as counsel for Complainant, Robert affirmative dut/ to conduct a reasonable inquiry into the facts supporting-the claim, not go on an unlimited fishing expeditionand in hopes that something might turn up. The conduct that of Complainant the Complaint his counsel can only lead to one conclusion; justift-herein was without foundation and was pursued without Constructors, Inc., but for the cation. Respondent, Ebasco conduct of C om pl a i n a n t and his attorneys, would not have Plai iqcurred ntif f s'
_11-Exhibit C
_ . - - - -- = . - _ - - - - - - - . . - . ._ _. ._
Q Pial ntif f s' Exhibit C in the amount of $77,468.53, and attorney's fees and expenses 11 Federal Rulcs of Civil pr oc edure ,
Respondent is, under Rule jointly and severally from John entitled to recover said amount Rex, Government AccountabilityasProject, and its attorneys hillie sanctions for their baseless Pirner Carde and Robert Culld and willful conduct in this case which amounted to an abuse of the administrative process.
Recognizing that the imposition of sanctions is unusual, the tendency is to attribute counsels' actions Such is tonot, inexperience, however, possible real or simply enthusiastic representation.
here.
The Government Accountability Project has much experience in cases of this type and, in fact, its very name suggests it exists for the purpose of prosecuting "whistleblower" cases such as this.
Ms. Carde, has been involved in cases Complainants lead counsel, such as this in the past and has been criticised by Seetrial judges Recommended for the mannct in which she has pursued cases. v. E b a s77 C on s t r u c t_o r s Supplemental Decision and Order in Coldstcin v. Nuclear _
86-ERA-36, and Recommended Decision and _ Order in liasan ~~
Power Services. I n c ._ , 86-ERA-24.
Though Mr. Guild became associated with this case only shortly before trial, he had an obligation to fully examine 11a thed hefile doneand so, all evidence before agreeing to become involved.
the weakness of Complainant's case should have been evident.
inexperience, real or I thus cannot attribute to counsels point when of this case beyond a s im pl e ent hus i a sm , pursuit reasonable investigation would have indicated no violation of any protected activity. Information f r on: which such a conclusion was evident was availabic in the Safeteam reports about which counsel was well aware, and by the investigative report of the Department of 1. a b o r . To continue to " beat a dead horse" in the manner here F.R.C.P. Rule 11.
subjects counsel to the sanctions of ORDER
~~1) The :omplaint herein fs DISMISSED with prejudice.~~
~~Government Accountahflity John C. Rex,~~
2) Complainant P r o j'e c t , and attorneys Billie pirner Carde and Robert Guild, are jointly and severally ordered to reimburse the Respondent herein the sum of $77,468.53 representing costs and attorney fees fncurred _
by Responder.t in d e f e n d i n i; this groundless )action.
)
mm L.
Le RAM 5EY
_7 ROBERT Administrative Law J udi e
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! tsp.a3 UtilTED STATES AMERICA
/ tiUCLEAR REGULATtAY COPMIS510!;
Before Acministrative Juc;es:
Peter E. Bicer , Cr: t man Dr. Kenne*," *. "cCrilC~
Dr. Walte '. Jcrcen
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,w t c. . a. . .
50 446 ln the Matter of (4plicat:rr for TEXA5 UTILITIES GENERAT!!iG COMPA!iY, et al. -
Orcra:ing License)
(Comanche Peak Steam Electric Station, De " meer 23, 19F3 Units 1 and 2) tie!'ORAtCM t.ND C;CER
/Cuali;;. As surance f er Cer ' gn' a: cut t r.e
[The parties are pre ibite frem infccminc en.cne u esistence or cnntent of th t Pemora n dur! anc Orcer ;rior :n 10 necn Ec; tern Daylign Sasings Time. Decemoer 23.]
The record bef ore us casts doubt on the desig" cut'1'y of the Ccr.ancne Peak S:em Electric Statier. (Cemancne Pep.;, actn tecause tne Company, al. ta: licant) nas net Te<as Utilities Generating - -
e *.
cemonstrated the existence of a systen tha p rerp tly corre::: design
? sdtisfec cry deficiencies anc bcCau5e Our. reCnr0 is GeVoid of expl?nction for several design cuestions raisec Dy the Citi: ens Association for Safe Energy (CASE), We suggest tnat tnere is a need for to file a plan an independent cerign review and we require applicart that may help to resolve our doubts, i
1 Plai n tif f r Exhibit E f,
._._.,.___.._# _ ~ . . . . _
't .
Plaldtiffs' Exhibit E l 1
[ .
Design Quality Assurance: 67 frictional leads between pipes and supports (CASE Exhibit l 659H, p. 5). Messrs. Doyle and Walsh seem to feel that had the design basis inputs anJ interf aces been adequate, these differences would not have occurred. They further state that since such differences have occurred, the Applicants have violated NRC regulations, as well as standards endorsed by the NRC, including ANSI N45.2, Assurance Program Recuirements for Nuclear Power Plants." " Quality (See, e.g., Tr. 2973, 3706, 3552, 3564, 3925, 6984-85). Messrs. Walsh and Coyle also stated that they believed that internal interfaces within tne SSAG [ Site Stress Analysis Group] were inadecuate, since there was no cleirly delineated line of connunication and responsibility in the Applicants' engineering guidelines, in violation of ANSI N45.2.11 (Tr. 6984-87, 6989).
The Boarc disagreet with Messrs. Coyle's and Walsh's cenclusions about the Applicants' organizational and design interfaces in the pipe support design area. It is true that there are differences in design approaches between the t;plicants' three pipe support design orgcnizations. These differences appear to be the outgrowth of the Applicants' o utilization three separate pipe support design organi:ations.y# An early decision was made by the App'licants that pice support designs would..be.. contracted out to ~foMiin c i e's~7h~o la ?.~eli n f. .~the ..bu s i ne s s - o f-de si g n in g _.x)d tabricating pipe support ccmponents, in order to satisfy ASME
'Cid6 Yequirement: and-to-setTbEi~s for competitive bidding between the companies, it was necessary~to_ provide-. them.dth
~
the ovtrail desien crite ATT6 bMe~t. The Gibbs and Hif1 cic~55diit7hi~dh aUS;nTshTs th~TT~oTRtive was Specification "
MS-46A. Contracts __Ict_the design of pipe supgrts s t _CESES
[Ccmanche F eR]% e rJ_ a w a'rM~tL.La .G r iiiiiiii _J! ' JI21 L i n'-,
addi~tWnu EFEicTrds_ created _what_be:arlh thdh , which also utilTied Specification MS-46A. Since neither Specification AST 4'6FnTF the~ASMElcEdfctite in detail the means by which an engineer is to satisfy the design criteria, differences in engineering approaches occurred between the three n be__Lup.po r t groucs. (Staff Exhibit 207 [5IT Report] , p.pan12; 11e1 i Acpl i ca nts ' Eiiffibi t 142, p , 9) .
l- The fundamental issue for this Board to resolve is
! whether these dif f erences in design approaches represent a 16c
'~
[fcctnote 13 in origi9al:] The Applicants also employ a fourth ,
organization for the design of structural supports for ' catile trays and conduits (NRC Staff Exhibit 207, p. 12).
p
~~g. .~~
~~Plai n tif f s' ExhiMt E~~
!0 f Design Quality Assurance: 68 safety or engineering concern, or if they violate any NRC regulations, Staff guidance or other f4RC-endorsed standard.
The Board believes that ANSI f145.2, and N45.2.11 in particular are relevant in resolving this issue. The overall purpose of ANSI N45.2.11 is to assure that each design organi:ation has a alesL._itc.Ein.ted_scopLof _ responsibiliLy J.nc._that there ge cocumenteo paths for communication wnen thg responsibility s)BHG;Eorror;aedicKn tp the 'other.EE shTec.ddy.
~
both. N45.2 is a general requirement decunant essentially edul?alent to Ap B of 10 CFR 50 while N45.2.11 is specific to those[;egdixdesign controls requirements contained in Criterion !!! of Appendix B and N45.2. Thr! NRC has endorsed N45.2 via Regulatory Guide 1.28, and endorsed N45.2.ll via Regulatory Guide 1.64 (Staff Exhibit 207, p. 12).
The evidence establishes that each of the three pipe support design organi:ations .has .its. win _;pecif.it scope.._of rescensibility since each has been assjgned fb.eg gsponsibility for a _s peci f.i.c g r. cup _o_f_'s uppo rts . (Staff Exhibit 207, p. D; Applicants' Exhibit 142, pT 9)-' The ce__i s Jio _.ne ed_f.9tc ro s s ccmu,nication between _the th ree,. g rnups. _s.in_ce ther, share no c omo n ,_io- U n,.e_desigrt rmspons.ibi.lity. furttemora. the3ne's V of ccmunication between-the.. Applicants,._Gibbsand_HLll, and e3th f p.t._
i support._ dg$.ign,__proanj a tion S.[3 _ clear a6d doSumented. (1d.) There is alto no need for TnTeYhal' interfases witiiin a design or support organization, under ANSI N45.2.11. (See,e.g.,Tr. 6987-89). Even if we believed that interfaces between the SSAG, and the STRUDL subgroup were '
necessary under ANSI requirements, we seriously doubt whether there would be any safety significance with regard to CPSES, in ligrt of the clear evidence that the pipe support design ;
groups are well aware that they are ultimately rasponsible for assuring that pipe supports meet all applicable NRC and ASME Code requirements (Tr. 6989-92).
Ihe Boar 1__ conc.ludes. that the Applicants have acecuately d.gfined_afg ..socumented_thc. 7eipcEfiblLifies faTd_ pathl of rt
_comunica desicn arcupS. tions JEtyeerL_Gibbs.._ LB1.1.LJnd the_pipeJpghe Np_. NPJ_ rJgyl afinn ha s,, been,_v i ol a ted , ab progra=atic cbjectives of SuDsection NA of the Ah_E. Code ,
Na5.2 end N45.2.11 have been satisfied. (Staff Exhibit 207,
~~p. 13.)~~
170 The Bnard changed this word in the staff document because of cur l
belief that Criterien 111 is not the only esign control recuirement found in Appendix B.
.. a} :; g
Plai n tif f s' t f THE UNITED STATES OF AMERICA Exhibit F '
BEFORE THE SECRETARY OF LABOR s
In the Matter of )
)
S.M.A. HASAN, )
)
Complainant )
)
~~v. ) Case No. 86-ERA-24~~
)
NUCLEAR FOWER SERVICES, INC. )
STONE & WEDSTER ENGINEERING CORP., )
TEXAS UTILITIES ELECTRIC CO., INC.,)
)
Respondento. )
)
BRIEP TO THE SECRETARY OF LABOR I. The Record and Pleadings Before the Administrative Law Judce Demonstrate that Mr. Hasan Must Prevail Complainant filed findings of facts and conclusions ot' law in this case before the Administrative Law Judge (ALJ). These pleadings carefully cited to the record and conclusively demonstrated the fcllowing:
(1) Mr. Hasan put forth a prima facie case:
(2) Mr. Hasan engaged in protected activity; (3) Respondents failed to demcnstrate that the actiens taken by Mr. Hasan, independent of protected activity, would have resulted in discipline.
This case can be resolved on very narrow and straightforward grounds.
The sequence of events leading up to Stone & Webster's 1- Plai n tif f s' Exhibit F i
)
l Ploi n tif f s*
~
Exhibit F refusal to hire Mr. Hasan at Cemancho Peak is unco,ntested. To , l summarize the post-trial pleadings:
(1) On the basis of an initial interview and his work l record, Mr. Hasan was approved for hire by Stone & Webster. Tr.
576-577.
(2) That Stene & Webster asked a manager ot' Texas Utilities (John T!nneran) for his ccm.ments about those employees approved for rehire. Tr4 576-77.
(3) That a Jnhn Finneran, a manager with Texas Utilities advised Stone & Webster not to rehire Mr. Hasan. Tr. 27.
(4) Acting on the advice of Mr. Finneran, Stone & Webster did not hire Mr. Hasan. Tr. 576-77.
(5) But for Mr. Finneran's negative assecsment, Mr. Hasan vould have been hired by Stone & Webster. Tr. 576-77.
(6) That Mr. Finneran based his decision not to reccmmend Mr. Hasan for rehire upon the advice of a Mr. Jay Ryan, another manager Dith Texas Utilities. Tr. 28, 35, 533.
(7) That Mr. Ryan stated, in sworn testimony, that he based this negative assessment en Mr. Hasan's internal complaints regarding poor encineering practices and on an argument that Mr.
Hasan had with a Mr. Barry Hill. Tr. 538-39.
(8) The Hill-Hasan disagreement referred to above was based on a quality control problera and that during this disagreement Mr. Hasan threatened to report the disputed engineering p oblems to the NRC if Mr. Hill did not fix them.
Tr. 273, 538, 532.
This is the case in a nutshell. The undisputed record demonstrates that the sole motivating factor in Texas Utilities'
' Plal n tif f s' Exhi'c lt F-
. _ - - . . _ _ _ - - . . - - . _ - - - - - - _ _ _ - _ - - ~ -_
Plai ntif f s' Exhibit F reccmmending Stone f. Webster not hire Mr. Hasan was based on Mr.
Hasan's internal whistleblowing activities and i threat to take the internal matter te the NRC if Texas Utilities did not preperly resc1ve the centrc m i
The case is simple. o n . .s P :asan'c internal complaints are viewed as prctected activity Mr. Hasan must win his cace.
ne Secretary cf Labor should carefully review these pleadings and issue a decisien in support of Mr. Hasan and remand the case for a decision on damages.
~~11. Mr. Hasan was Retaliated Against Eecauce of Hic Whistleb1cvine Activities~~
~~1. Introductien.~~
Knowledge on the part of TUGCO's management that Mr. Hasan was rejecting pipe support engineering packages due to safety-related design deficiencies is the cornerstone of Mr. Hasan's case.
Hnowledge en the part of Mr. Jay Ryan (Lead Engineer fer the Large Bore Pipe Support Engineering Group. Tr. 532) and Mr. John Finneran (TUCCO's chief pipe support engineer for the entire plant, to whom Mr. Ryan reported, Tr. 18) is critical because it is uncontested that Mr. Ryan and Mr. Finneran jointly made the
~~decision to ban Mr. Hasan f rom the site. Rescondents' rincing of Facts (hereinafter " Respondents' For") Nos. 33-36.~~
Mr. Ryan and Mr. Finneran chose to ban Mr. Hasan from the site because they did not intend to adequately evaluate the Plal n tif f s' Exhibit F i
l
, Ploi n tif f s' Exhibit F i
safety concerns Mr. Hasan had raised over the years. This resulted in a great deal of animus toward Mr. Hasan on the part of Messrs. Finneran and Ryan. For example, Mr. Hasan rejected more PSE design packages due to safety-related design deficiencies than anyone else and his rejection of pipe supporto cause considerable delay of the certification of the pipe support design. Also, Mr. Hasan detected design deficiencies in bcth 11PS and P$t design criteria, problems which no other line engineer en site detected or called to management's attention. Mr. Hasan's expertise and dedication as an engineer led to the uncovering of numerous safety defects in the desigt of the plant.
Respondents, on the other hand, deny that Mr. Hatan detected any design deficiencies or that he ever re]ected a pipe suppcrt because of a design deficiency in the criteria. See iiespondent s '
For 54, 70, 72, 74, 87, and 88. As such, Respondents argue that Mr. Ryan and other members of management could not have had, and in fact did not have, any knowledge of Mr. Hasan's rejection of packages duc to imprwper design.
Below Complainant will demonstrate the Respondents' case is based on false statements and apparently per]ured testimony; and that Respendents' counsel apparently relied on perjured testimony to prove its case. The record will bare that Complainant coristantly raised design deficiencies to management and likewise rejected to management pipe support packages due to safety-related design deficiencies and that as a result of this Mr.
Hasan was-banished from the Comanene Peak site and blacklisted in the nuclear industry.
4 -
Plal n tif f s' Exhibit F<
l Plai ntif f s' l Exhibit F l
~~2. Respondents CoveLed-Up Safety Concerns.~~
l Prom January 1982 to August 1985, Hasan brought many safety concerns to his superiors at the ccmanche Peak site including, l Ram Hemrajani, Dave Rencher, Michael Chamberlain, Harvey Harrisor., John Finneran, and Mike McBay. Tr. 230. These safety !
concerns are now characterized by the t;RC as 65 quality assurance I allegations about Ccmanche Peak, CX 14.
It is beyond question that Mr. Hasan constantly raisad ,
safety concerns of inmense magnitude. In addition to stiffness values of class 1 pipe supports (Tr. 117-118, 148-149, 234-237, 285-286, 393), they included: punching shear (Tr. 230-234);
negligent design review (Tr. 75, 365); Richmond Inserts (Tr. 238-240); Cross-over of PSC design packages to 1lPS (Tr. 72-75, 240-241, 120-121); Minimum Weld Requirements (Tr. 168, 190), and numerous others safety concerns identified in CX 14. For a more detailed account of Mr. Hasan's whistle-blowing activity, see Complainant's Proposed Findings of Fact at pp. 13-19, 28-35.
!onetheless, Respondents falsely assert-that Mr. Hasan "did not have any ' safety concerns' about the site" Respondents' For 54, that "he never claimed that the presence of different or
'inconsintent' design criteria in any way affected safety at Codanche Peak," Respondents' for 70, that the " technical points be raised did not rise to the level of safety concerns"
\
l Plai n tif f s' l
Exhibit F
, Plaintif f s' Exhibit F Respondents' For 7;, that " Texas Utilities (did not] have any informaticn that Mr. Hasan had safety concerns about Comanche Peak," Respcndents' For 87, that Mr. Hasan had not " expressed any safety concerns to Texas Utilities management," Respondents' TOP BO, and that " Texas Utilities management was always responsive to any concerns raised by engineers" and " encouraged engineers to bring such concerns te management's a '. t e n t i o n . " Respondents' ror 72.
These findings cf fact by Respondent are erroneous, and in violation of FRCP 11. For example, Respondents assert that they
" encouraged" engineers to bring safety concerns to management's attention, Respondents' FCr 70. The suppcrting citatien (Tr. 122 (Rencher)) does not suppert the proposition it is sited for.
Rather Mr. Rencher's testimony concerns management's attempt to intimidate line engineers fren going to the CASE cr the NRC w:th safety concerns. :n particular the testimony concerns Mr.
Rencher's intimidaticn tactics used to halt the flew in g information to CASE (the citizen intervenor organization) and the NRC. It is uncontested that Mr. Rencher began accusing line -
engineers in his group as being " spies" for CASE, with the intent of stopping them form contacting CASE with safety concerns. But beyond taking Mr. Rencher's testimony cut of context, Recpondents' assertion flies in the face of the unrefuted testimony that Mr. Hill personally singled out Mr. Hasan as a" spy" for CASE and intimidated by management after he was Plai ntif f s' Exhibit F
Plal n tif f s' identified as a " spy". Tr. 270./l Eb(hlbit F Respondents paranoia of engineers going to the NRC or CASC so frightened Texas Utilities that managers were allowed to openly intimidate employees attempting to make such contact.
Indeed, Respondents' parar-ia is so ccmplete that Respondents concluded in their Reply Drief that "in fact at is clear that, at least in (the case of Messrs. Walsh and Doyle } , CASE nad covertly emplcyed" spies to " collect information" while working at the site (Walsh and Doyle are the two leading o.-employee engineer-whistlebicwers at Ccmmanche Peak). Reply Btief at p.10, FN 11.
Beyond the fact that this allegation was not raised anywhere in the record, it is patently untrue and false, and was made with the malicious intent to mislead the tribunal. This knowingly false statement will be the subject of a motion for FRCP Rule 11 sanctions.
1/ Because Mr. Hasan's testimony was unrefuted, an adverse Inference that Mr. Hill made the asaertion is appropriate.
Furthermore, Respondents, in their reply brief, knowingly mislead the court by asserting that Complainant 's failure to call Mr.
Hill to the stand to corroborate Mr. Hasan's testimony is indicative of the fact that Mr. Hasan's assertion was false, nespondents then assert that Mr. Hasan's " uncorroborated oral testimony about his purported utterance to Mr. Hill could (not) be believed." Reply Brief at 4. This is an out-and-out misrepresentation of the facts. The truth is that Respondents' own witness, Mr. Chamberlain, corroborate Mr. Hasan's testimony tha't he told Mr. Hill that he would go to the NRC [Tr. 192).
Furthermore, Mr. Rencher testified that he spoke to Mr. Hill about " spies" and that Mr. Hill agreed with Mr. Rencher that
" spies" for CASE were on site ITr. 116). Respondents' false assertion is sanctionable conduct pursuant to FRCP Rule 11.
Plai n tif f s' Exhibit F
riai n us . o
_ Exhibit F Respondents define Mr. Hasan's " disruption" as a personal problem. In so doing they confuse' Mr. Hasan's telling management that he was about to "go to the NRC" as " people problems." Blewing the whistle on errors in the design of a nuclear power plant is not a " people problem," it is protected activity. Mr. Hasan was cognizant of the fact that management had ordered the engineers to use false values in computing stiffness as well as numerous other safety concerns. Mr. Hasan fought long and hard to correct those and other problems. The more Mr. Hasan protested the more management openly intimidated Mr. Hasan from contacting the intervenor and the NRC. When it came time to correct the prcblems (i.e. when Stone and Webster arrived on site), Mr. Hasan was baniched frem the plant cc the actua; management cculd continue to deceive the NRC extent of re-work need to correct the errors in the plant's pipe support design (which Stone & Webster had been brought on site to correct).
III. Jay Ryan Submitted Perjured Testimony Concerning Mr. Hasan's Rejection of PSE Pipe Support Packages Between 1982 and 1985.
In an attempt to prove their theory of the case, Respondents' counsel apparently alloued their star witness, Jay Ryan, to commit perjury. Mr. Ryan apparently perjured himself when he testified under oath that Mr. Hasan, from January 25, 1982 until May 1984 (the time frame Mr. Hasan worked under Mr.
Plal n tif f s' Exhibit F
Plai n tif f s' Exhibit F Rencher in the NPS group), never rejected a single PSE-designed pipe support package. The truth is that Mr. Hasan rejected scores of PSE design packages during this time and Mr. Ryan knew of this and discriminated againct Mr. Hasan because of it.
The rejection of pipe supports is a major key to the proper understanding of this case. Unfortunately, the ALJ's Recommended Decision and Order is wholly defective on tnis account, and as such it is evident that the ALJ failed to understand the very premise of Complainant's case.1/
While in the NPS group, Mr. Hasan rejected numerous PSE packages to Mr. Ryan by attaching a memo directed to Mr. Ryan personally. Nonetheless, Mr. Pyan denied that Mr. Hasan rejected a single such package. To demonstrate that Mr. Hasan was telling the truth and that Mr. Ryan is lying will require scme additional .
background.
2/ The ALJ found that Mr. Hasan "would repeatedly ' reject' calculations of other engineers because he checked them against another contractor's set of criteria," and that: "It was the accepted practice at the time for each contractor's calculations to be checked according to that same contractor's set of criteria," but that Mr. Masan chose to " repeatedly ' reject' calculations.of other' engineers because he checked them against another contractor's set of criteria." The ALJ concludes that because he chose to apply tae wrong set of criteria (which is not true) Mr. Hasan's rejection of his fellow engineers' work became l a source " continuing disagreement" with the predictable end result of " personality" clashes with his co-workers.
The ALJ's finding are factually at error with the record because Mr. Hasan never applied the wrong criteria to a pipe support packager ratner he only applied the criteria he was instructed to apply. There is no testimony any where on the record that Mr. Hasan ever applied the wrong cri .eria to a fellvw engineer's work. Rather, Mr. Hasan was discriminated against because he constantly identified design deficiencies in the design criteria itself and rather chan because he applied the wrong set of criteria to his collegues' work.
_g-Plai n tif f s' Exhibit F
I
- - ..., n :lf f s' l T.;,a, alt F !
, 1. Background 1 The entire time Mr. Hasan worked at the Comanche Peak site, - '
the pipe supports were being designed and constructed by three separate groups. Each group had established its own design guidelines, known as design criteria, and every pipe support design originating out of a given group could only be checked against that group's design criteria. The three design groups on site responsible for the design and review of pipe supports were (1) NPS (or NPSI) Unit 1 group, (2) ITT-Grinnell group, and (3) the PSE (or Pipe Support Engineering) group.
Thus, the NPS group was only to review NPS-designed pipe supports using the NPS design criteria. Likewise, PSE group could only review PSE-designed supports anainst PSE criteria, and ITT-Grinnell was to evaluate ITT-Grinnell designed supports using only ITT-Grinnell criteria. Respondents' F0F No. 69. It is thus axiomatic that NPSI,-PSE, and ITT-Grinnell were not to transfer pipe support packages between themselves for certification and under no circumstance were pipe supports to be qualified under two sets of design criteria.
As even Mr. Ryan admits, if NPS reviewed PSE pipe supports, then "something would be wrong." Tr. 550.
The PSE_ group was under the watchful eye.cf Jay Ryan, wh'ereas the NPS group was supervised by David Rencher. When Mr.
l Hasan arrived at Comanche Peak, he was assigned to the NPS group and was placed under Mr. Rencher's supervision. Mr. Hasan was Plal n tif f s' Exhibit F
Plaintif f s' Exhibit F
. assigned to the NPS Unit 1 group from January 25, 1982 until mid-Mcy 1984.
During this time Jay Ryan and John rinneran, in order to meet production schedules, engaged in a scheme. They regularly sent certain PSE design packages to NPS for certification.
Soon after his arrival, Mr. Hasan began to raise as a cencern to Mr. Rencher the fact that different criteria were being applied to the same pipe supports. As early as 1962, Mr.
Hasan complained to management that NPSI was reviewing PSE-cesigned pipe supports and applying NPS criteria to those supports. Tr. 238-240 (Hasan).
Mr. Hasan's chief concern was that PSE and NPS used different design criteria to analyze Richmend Inserts (steel rods embedded into concrete to which pipe supports are anchored). The result of this was that the Richmend Inserts designed under PSE guidelines would ccme into the NPS group for certification and during the certification process would fail under the NPS criteria. These pipe supports were then rejected b0ck to PSE with a memo attached to the packages explaining why the support failed. These memos were addressed directly to Jay Ryan.2/
t 3/ $ One of these memos is attached nere to as Exhibit 1. It is the only such memorandum in Complainant's possession and was found by chance after Mr. Hasan located it stuck between the l pages of a book he removed from the site. Prior to that Mr. Ryan i
searched all of Mr. Hasan's material leaving the site and removed all other copies of similar speed memos. The facts surrounding this memo will be the subject of a forthcoming Rule 11 motion.
l Plal n tif f s' Exhibit F
. _ . . _. _ _ _ _ _ . _ _.___=m-_ ._ - ._m. - . ._m._m.. _.._m _ m m _._
, Ptcl n tit r o-Exhibit F
, Once the rejected pipe ;upport package was back in Ryan's hands, the package would often be certified in the PSE group without solving the problem raised by NPSI line engineers. Tr. 241 (also see Rencher Depo Tr. at pp. 251-252 wherein Mr. Rencher testified that minimum weld requirement violations also resulted in the rejection of PSE packages oy NPS back to the PSE group).
As Mr. Rencher cpenly admitted during his deposition:
Q: [By Mr. Kohn) ... Do you know if Mr. Hasan could net certify NPS Richmond insert [ design} criteria on seme of the (PSE) packages he as checking (while in MPS]?
A [By Mr. Rencher) He could not certify some of the packages because of the NPS criteria on Richmond Inserts, yes.
Or Did you take these packages to the PSE group for certification? * *
~~At Well [Mr. Hasan would) attach (to rejected PSE packages) a memo [e.g., see Exhibit 1 attached hereto) to~~
[Mr. Ryan stating that] the supports were rejected for the following reasons, or scmething of that nature, and explained what the problems were . . .
Q: And would the PSE group then certif y the packages?
A: . . . Yes.
0: Would they often certify the packlige without making any changes?
MR. WOLKOFF: If he knows.
A: . . . yes.
[Rencher Deposition Tr. at pp. 96-97, emphasic added)
Plain tif f s*
Exhibit F
F Plaintif f s' Exhibit F Q: Are you awire Mr. Ilasan could not certify NPS Richmond insert criteria on some packages?
A: I'm aware that he could not certify some of the supports because of the Richmond insert criteria, yes.
Q Did you take these packages to the PSC group for certificatien?
A: These packages were rejected frcm the NPS group to !
the PSr group. (Rencher Deposition Tr., at p. 167, emphnic added)
Mr. Hasan continually rejected PSE pipe supports because of the inconsistent criteria concerning Richmond inserts. He would .
reject these packages directly to .ur. Ryan or Mr. Rencher (not line engineers).
Mr. Hasan's chief concern was that since Richmend Inserts were.being analyzed under different design criteria, a
" progressive f611ure cf the piping system" (i.e., domino effect) could occur. Mr. Hasan fear was well grounded because if a progressive failure of the Richmond inserts ever occurred, a melt down could easily follow.
~~2. Perjury.~~
Rather than confront the reality that Mr. Hasan was rej'ecting more PSE pipe supports than any other engineer in NPS, Mr. Ryan was allowed to testify that Mr. Hasan had never rejected a single PSE pipe support while in NPS.
Mr. Ryan testified that NPS never certified or rejected a i
( -
la - Plai n tif f s' l
l Exhibit F l
l
Plaintif f c' Exhibit F PSE pipe support. More specifically, Mr. Ryan testified that Mr.
Hasan never reviewed a PSE pipe support while assigned to the NPS group. As the transcript reflecta:
Q: (By Mr. Mack) And were they ever reviewed by anyone at NPS?
A: (By Mr. Ryan] No...NPS would have reviewed their original designs. Personnel in PSE would have reviewed PSE designs.
O: Well, what if, in fact, what occurred was comething came out of PSE and it was being reviewed by NPS?
Would that create a problem?
A: It wouldn't happen.
O: It would never happen?
A: No.
0: Okay. So that while (Mr. Hasan) worked [in the NPS
-group) no package designed in your group [PSE1 would ever be reviewed by Mr. Hasan.
A: That is correct.
Tr. 540-541.
O: Are you certain that none of your [PSE) packages were ever reviewed by Mr. Rencher's [NPS) group during the time...Mr. Hasan was working there?
A: There were separate contracts. The original PSE designs were reviewed by PSE. The original NPSI designs were reviewed by NPSI.
Tt. 549-550.
Plai n tif f s-Exhiblt F
Plaintif f s' Exhibit F
. Mr. Ryan's testimeny was clear and unequivocal --
that Mr.
Hasan never reviewed a ?SE pipe support while working in the NPS group. This testimony is consistent with his sworn and signed deposition testimony whien reads:
Q: [By Mr. Kohn) Did you know that Mr. Hasan was rejecting packages from your group?
A: [Mr dyan) No. Why would he be?
Q: Did Mr. Hasan reject I!sE packages due to inconsistent criteria (bt seen) NPS guidelines (and PSE guidelines)?
A: He didn't review any PSE packages.
Q: ...your testimany is that Mr. Hasan revietied no PSE packages?
(footnote con't)
A: (Hasan] Only reviewed NPS: packages when ne was in the NPC' group.
b Q: (C}id Mr. Hasan ever reject a PSE package that had already been certified because it did not meet NPS guidelines?
A: You can't cross guidelines...you don't cross design guidelines to review packagcs.
Pla.i n tif f s' cxhib.ti F
Plcintif f s-j[ -
Exhibit r
, Mr. Ryan's testimony was knowingly false when made. This tribunal need not look any farct' "
the hearing testimony of Mr. Rencher to support this proposition:
Q: (By Mr. Mack) ...[W)ere you aware whether or not Mr.
Hasan was rejecting Mr. Ryan's pipe support engineering group (PSE) pipe supports while working in your group (NPS]?
A: [Mr. Rencher) There were pipe supports that we:c rejected out of my group, and I am certain Mr. Hasan I had reviewed some of those.
Q: And were they coming from Mr. Ryan's group (PSE)?
A: Yes, they were.
Q: And when Mr. Hasan rejected Ryan's pipe support packages... would Hasan attach a memo to those packages?
A: Yes....
Q: And (Hasan) would sign those memes rejecting (M.,
Ryan's PSE packages)A: Yes.
Tr. 120-121 (emp hasis added) .
Beyond the testimony of Mr. Rencher, Messrs. Ravada and Hasan-confirm the fact that it was common practice for Mr, Ryan to send PSE packages to NPS for certification. Mr.-Ryan's uny.ielding denial, compared to the complete contradiction by Messrs. Rencher, Ravada, and Hasan (Tr. 88, 120-121, 125, 130, 239, 275] makes it impossible to conclude anything but that Mr.
Ryan repeatedly and knowingly lied under oath.
% ' , dl f ;;;*
Exhibit F
Plai n tit t s' ,
. Exhibit F ,
The perjured testimony of Mr. Ryan was expressly called to ,
the attention of the ALJ.
- See, Complainant's Proposed Finding of Fact at 33-35, 52. The ALJ, evidently misled 'by false statements made in Respondents' counsel's Reply Brief, failed to address this glaring contradiction when rendering his Recommended Decision and Order.1/
4/ Respondent's Reply Brief contains dozens of talse statements, some of which are as follows:
1. P. 2, FN 2. States that Mr. Hasan's counsel submitted the Mr. Hasan's 65 concerns to the NRC in May 1987. There is not one sh:ed of evidence on the recced to support that statement. Rather, the statement is contrary to the established record that Mr. Hasan's concerns were given to the NRC in D nuary, 1986,
~~2. P. 4, para 2. Claims that Mr. Hasa7's testimony was "uncorrobo:ated" concerning his " purported utterance to Mr.~~
Hill" that he would go to tae NRC. This is an outrageous statement given that Respondents' own witness, Mr.
ChamberlaiT, testified that Mr. Hasan would have constant
" outbursts' in Mr. Hill's group stat ing that he was about to "go to the NRC." Tr. 192.
3. P. 7. Mr. Wolkoff apparently relies on his own false or uncooperated statements to impeach Mr. Hasan. In in effect Mr. Wolkof; testified that Mr. Ravada had contradicted himself on the stand because he had told "the opposi;e of what he hat informed Respondents' counsel prior to the trial." This statement constitutes an unethically questionable practice of law. See Jackson v. United States, 297 F,2d 19i, 198 (D.C. Cir. 1961 (concurring opinion).
~~4. P. 7, FN 7 Mr. Hasan had "a bad employment record."~~
Respondents were forced to stipulate that Mr. Hasan had a better than average employment record. Tr. .
(Footnote Con't on next page)
Plai n tif f s' ELxhibit F
~
Plai n tif f s' (Footnote 4 Con't) ,
~~5. P. 8, FN 9 Respondents coansel asserts that Mr. Hasan did '~~
~~not raise improper stiffness values during the August 19th meeting,~~
~~7. P. 10, cont, of FN 11. " CASE had covertly employed two perscnn at the site to collect information." An absolute falserood with no basis in fact.~~
8. P. 11, FN 14. Mr. Hasan's " inconsistent criteria peeve was by that-time entirely moot." An absclute misstatemeat. See letter from Mr. Counsil admitting that Mr. Hasan's concern over stiffness values was a reportable violation of 10 CFR 50.35(e).
~~9. P. 12. Mr. Hasan only rejected packages to line engineers.~~
False. Mr. Hasan rejected PSE pipe supports directly to Mr.
Ryan himself. See, Supplemental Response to Discovery, August 13, 1985, a copy of which is attached bareto as Exhibit 1. This document is a copy of one of dozens of memos Mr. Hasan sent directly to Mr. Ryan. There is no truth to the allegation that Mr. Hasan only rejected packages back to line engineers.
~~10. P. 13, FN 16. Same as p. 12,~~
11. P. 14, cont. FN 16. Technical issues had "long ago been resolved" when in fact management was actively covering up the concerns Mr. Hasan raised years af t.er he first identified the problem to management, and years after Mr.
~~Hasan left the site.~~
~~13. Respondents conclude that the NRC had determined that Hasan's concerns about "STRUDL" were not safety-related.~~
This is contrary to the NRC letter to Respondents, dated January 6, 1988, stating that Mr. Hasan's allegations were substantially correct. This letter is attached hereto as Exhibit 2.
pisi n tif f s' Exhibit F I
Plai n tif f s' 3.
Respondent's Counsel Made False and Exhibit F Misleading Statements to Defend Against Complainant's Attack on the Credibility of Mr. Ryan and These Falco- Statements Misled the ALJ In response to Complainant's Finding of Facts (wherein the
. problems with Mr. Ryan's testimony were pointed out, see Complainant 's F0F at pp. 33-35, 52), Respondents' counsel explained to the Court.that Complainant's attorneys had mislead tne tribunal with " ambiguous" phraseology and that any contradiction elicited between Mr. Ryan's and Mr. Rencher's testimony was due to " Complainant's counsel's inartful phraseology" at trial -- not because Mr. Ryan lied.
Respondent's counsel went on to assure the Court that there was " absolutely no discrepancy" between Mr. Rencher's and Mr.
Ryan's_ testimony. Respondents' Reply Brief at 16.
Respondents' counsel argues that Mr. Re r.ch e r " interpreted PSE group to mean PSE field group" and therefore Mr. Ryan correctly-testified that " design packages" did not necessarily pass from group to group -- rather, that ticld packages were the only type of packages passed between groups. A plausible argument -- that Ccmplainant's counsel "inartfully" assumed Mr.
Rencher was testifying about design packages when he really meant field _ packages; that Complainant's counsel was simply caught up in " confusion", "inartful phraseology", " misunderstanding", and
" ambiguity". Respondents' Reply Brief at 14-16.
There was no " misunderstanding", no "inartful phraseology,"no " confusion," and absolutely no ambigu.ty associated with Mr. Rencher's testimony.
l i
bBi n tif f ge Exhibit F i
9
. Plai n tif f s'
., Exhibit F
. First, and foremost, Respondents absolutely failed to make a record to substantiate this alleged distinction.
Second, regardless of Respondents failure to make a record, the distinction between " field" and " Design" groups itself is utterly false. Respendents' counsel knew or should have know that this distinctici, was false before submitting this alleged distinction into the record.
There is no escaping the fact tb t Respondents' counsel misrepresented the fact that Mr. Rencher meant field and not design packages when he gave tes,timony that 11PS was rejecting PSE packages. The absolute proof of Respondents' folly is contained in testimony Mr. Renener gave during his pre-hearing deposition.
Q His testimony de=cnstrates that Mr. Rencher meant design an not field packages when he testified at the hearing. According to his deposition transcript:
Q: (By Mr. Kohn! ...{W}ere you aware that the !;PS group was rejecting PSE supports during the certification process?
A: (Mr. Rencher] Yes, I was aware of that.
Q: Were you aware cf that in 1983?
A: Yes.
Q: Were ycu aware of that in 1984?
A: Yes, sir.
Q: Were you aware of that in 1985?
A: Yes.
Rencher Deposition at 78-79, emphasis added.
_u_ Plai n tit i s*
Exhibit F
Plai n tif f s' Exhibit F Q: The NPS group was rejecting PSE packages.during the certification process, right?
A: Yes.
Q: Of those that were being rejected, were they ever then recalculated under different criteria?
A: Yes.
Q: And then they were certified after they were recalculated under different criteria?
A: Yes.
Rencher-Deposition at 81, emphasis added.
Mr. Rencher goes en to testify that he personally had conversations about NPS's rejection of PSE-designed packages with Mr. Ryan.-
Q: (By Mr. Kohn) Did you ever have any conversations with Mr. Ryan concerning Mr. Hasan's reject.on of pipe suppo:ts?
A: I had conversations with Mr. Ryan about rejections of pipe supports out of my group (NPS)...
Q: b'h a t was the sum and' substance of those ccnversations?
A: Mr. Ryan asked if we micht try to cualifv the supocrt as it was to avoid rework...
Rendher Depositicn Tr. at p. 67, emphasis added.
Indeed, Mr. Hasan testified that Mr. Rencher had complained to-his group that he was "being pressured" by Mr. Ryan to stop rejecting PSE pipe supports and that Mr. Ryan was "not happy" because NPS was rejecting, according to Mr. rencher's deposition 1
i Plai ntif f s' ED<hib it F .
Plai ntif f s' R Exhibit F l
, (1) That the packa;es Mr. Hasan rejected as a " checker" were rejected back to line engineers and not management, and therefore management did not even have the requisite knowledge that disputes associated with Mr. Hasan's rejection of pipe support packages was even remotely associated with whistleblowing but rather was caly associated with egregious personality clashes Mr. Hasan continually had with fellow line engineers.1/FN (2) That Mr Hasan was a " checker" and a " checker's" job is to find errors in packages, and therefore the mere fact that Mr Hasan found errors (i.e. was essentially doing his job), does not constitute protected activity. For No. 69. As such, disruption
-l caused by a " checker's" personality problems is not protected activity -- it is merely the type of improper employee conduct management does not have to tclerate.
5/ Respondents' theory that somehow Mr. Hasan_ bickering with his collegues was caused by. prejudice on the part of Mr. Hasan is ludicrous. Respondents can not corroborate itr theory of the case with the testimony of a single line engineer even though every-crucial line engineer who could have testified about Mr. Hasan's
" people problems" were re-hired by Stone & Webster or Texas Uti'ities and, according to answers to interrogatories, were still employed on site. Indeed, outside of Mr Hasan, only one line engineer testify, Mr. Ravada, and he testified that it was his fellow Hindu (Mr. Ravada is Hindu whereas Mr. Hasan is Muslim) engineers who were treating Mr. Hasan unfairly.
Respondents did not, because they could not, find a single line engineer willing to testify against Mr. Hasan.
Plai n tif f s-Exhibit F
Plai n tllt s' In Respondents' own words:
"The ' fundamental error' in Complainant's position is that he incorrectly equates the rejection of design review packages back to his fellow line engineers with the concept of raising safety concerns to management. .
(And that the) critical point concerning Mr. Hasan's rejection of packages is that he did not reject them for safety-related reasons, nor did he reject them to
~~management," (emphasis added] Respondents' Reply Brief at 11-12.~~
Obviously, the first is soundly defeated by Mr. Ryan's cover-up of the illegal passing of packages between the different groups. The second is fundamentally flawed because the heart of Mr. Hasan's whistleblowing is that the criteria differentiation caused drastic and complex engineering design deficiencies in the very design of the plant. Only one line engineer, Mr. Hasan, was able'to find (due to his extreme engineering skill), or at a minimum was the only line engineer brave enough to bring the design ectors to management's attention, risking, and in fact loosing, his job.
The facts are clear: during the certification process Mr.
Hasan continually brought to management's attention the fact that the criterion itself contained errors of immense proportion that jecpardized the safety of the entire facility. Tnat is, Mr.
Hasan called into question the validity of the very certification process itself and that the pipe supports line engineers had certified contained engineering errors of immense preportions.
Mr. Hasan began informing management of his concerns in 1982. Management respond 9d by telling Mr. Hasan that it was none of his business as managemen al.one had the responsibility to Plai.ntif f s' Exhibit F
Plat ntif f s' Exhibit F-
. decide what criteria to apply and Mr. Hasan was to apply that criteria without question. Mr. Hasan complied with management in that he applied the criteria he was told to apply, but all along he cc-r:nually informed management that the criteria he had been ordered to apply would result in an unsafe design. Mr. Hasan had an institutionalized knowledge of problems in the design of the plant and he wculd continually raise these problems to management.
At the core of Mr. Hasan's internal whistleblowing disclosures was that management was jeopardize the safety of the plant (e.g. such as SWEC's not using the correct stiffness values in its initial requalification effort). Both Messrs. Finneran and Ryan knew that many of Mr. Hasan's internal whistleblowing disclosures had not been reported to the NRC or CASE. If Mr.
Hasan remained there was no stopping Mr. Hasan f rom continuing his internal whistleblowing to SWEC. Once SWEC officially was informed of the error by Mr. Hasan, their requalificait, ion effort would have been exposed, making it just about impossible for Texas Utilities and SWEC to cover-up the truth any further,
~~1. Mr. Finneran Apparently Testified Falsely.~~
At the hearing Mr. Finneran apparently chose to perjure himself rather than admit that Mr. Hasan had begged him to recall certain packages so he could demonstrate that Westinghouse was about to (had) calculate the stif fness of the class 1 piping system using the wrong values. These stiffness values were made Plai ntif f s' Exhibit F
. Plai n tif f s-1 l
Exhibit F part of the heart of SWEC's initial requalification effort (SWEC was supposed to requalify the pipe supports in 6 months. Years later, thanks to Mr. Hasan's and Messrs. Walsh and Doyle's disclosures, SWEC has still not qualified the Class 1 piping system directly attributable to the unsafe design criteria Mr.
Hasan continually clew the whistle about to management between 1982-1985).
Mr. Finneran's denial that Mr. Hasan did not raise the issue of the Westinghouse analysis cf the Class 1 pipe supports repeatedly during the course of the August 19th meeting is not only thoroughly discrecited by Mr. Hasan's testimony, it is thoroughly contradicted anc discredited by the testimony of Respondents' own witness, Mr. Rencher.
Mr. Rencher's testimony is unequivocal, not only did Mr.
Hasan raise the issue, but also that Mr. Finneran understood the significance of what Mr. Hasan had brought to his attention.
According to the testimony of Mr. Rencher:
O (By Mr. Mack] In that (August 19th} meeting in your prcsence, did Mr. Hasan raise a concern over the stiffness cf Class 1 pipe supports?
A (By Mr. Rencher} Yes. he did.
O In the presence of Mr. Finneran? ,
A Yes.
O Did the two of them [ Messrs. Hasan and Finneran] hold a discussion about that?
A it was discussed in that meeting,.yes.
O And Mr Finneran was a participant in that discussion.
A Yes, sir.
Plai n tif f s' Exhibit F
Plai n tif f s'
. . .. Exhibit F O Do you recall whether Mr. Hasan in that meeting was concerned that the stiffness values of the hardware had not been calculated for NPS Class 1 pipe supports?
A Yes.
O And did ne express that concern to Mr. Finneran?
A Yes, he did.
O And Mr. Finneran understood the concern?
A Yes, he did.
[Tr. 117-118]
There is no room for doubt that Mr. Finneran's failure to recall certain packages Mr. Hasan brought to his attention in order to verify what he already knew (Mr. Hasan had first identified the problem to management back in 1982) that the calculation of the stiffness values for the entire Class 1 piping system contained gross engineering errors. Not only did Mr.
Finneran refuse to recall the packages, he knowingly prepared memoranda falsely stating that Mr. Hasan had absolutely no safety concerns. These memoranda (RX 45, 31; CX 7) would become the center piece of Respondents' case.
In effect, Mr. Finneran (and others) engaged in an active cover-up of engineering flaws Mr. Hasan had first brought to management's attention back in 1982. Four years later, after SWEC began its-initial requalification effort of the class 1 piping system, Texas Utilities admitted for the first time that SWEC had used incorrect pipe support stiffness values and that this error was so egregious that a violation of 10 CFR 50.55(e)
T f p ;y ; g; >
25.hibit ~
Plai n tif f s-
+
had occurred and had Mr. Hasan's allegation of incorrect stiffness values gone undetected, "the integrity of the Class 1 piping and supports could not be assured during normal operating or accident conditions" and at least 30% of the pipe supports SWEC had considered " qualified" as of April, 1986, were in fact inadequately designed due to the incorporation of incorrect stiffness values that e melt dcwn could likely occurred if Mr.
Hasan's concern had gone undetected. See Letter for Texas Utilites Executive Vice President, William Counsil to the NRC (Exhibt 4 to Complainant's Second Motion for Default Judgment or in the Alternative for Disqualification, hereinafter cited as
" Default / Disqualification").5/
Finneran testified that the ten technical items he listed in the two page cover letter to his ten page August 19th memorandum incorporated every technical point Mr. Hasan mentioned during their August 19th meeting. Acco'c ding to Mr. Finneran's two page memorandum, Mr. Hasan "did not have any concerns which he felt were important to safety at the plant." CX 7; RX 31.
To be sure the words " stiffness' and the term "Clasr 1" are not found anywhere in these two documents. CX7: RX 31, RX 45.
6/ , Mr. Chamberlain admitted that the difficiency identified by Mr. Counsil in his letter to the NRC corresponds to the improper stiffness values sent to Westinghouse that Mr. Hasan pleaded with Mr. Finneran to correct during their August 19th meeting together. As Mr. Chamberlain's deposition testimony reveals, Mr. Hasan's concern over the: " Class 1 supports which Westinghouse analyzed" is the same concern addressed in the "SDAR" Mr. Counsil's letter to the NRC referenced. Chamberlain Depo. at p. 238.
i'
! ! R: 2. I h f f f J; Cv
.,4
- C 1
Plal n tif f s' Exhibit F Finneran's outright denial that Hasan raised stiffness of Class 1 piping during their August 19th meeting (Tr. 21] is contradicted by Messrs. Hasan's and Rencher's detailed testimony that such a discussion did occur on August 19th.
Mr. Finneran's failure to inform the NRC of Mr. Hasan's concern that the incorrect stifness valuse has been used to claculate the' stiffness of the Class 1 piping system is, evidently, a civil and criminal violation pursuant to 50 C.F.R.
55(e). See Footnote 6, infra. According to Mr. Rencher's testimony:
0 (By Mr. Mack] In that meeting (August 19th] in your presence, did Mr. Hasan raise concern over the stiffness of Class 1 pipe supports?
A (By Mr. Rencher] YEs, he did.
O In the presence of Mr. Finneran?
A Yes.
O Did the two of them (Hasan and Finneran] hold a .
discussion about that?
A It was discussed in tht meeting, yes.
O And Mr. Finneran was a participant in that discussion.
A Yes, sir.
O Do you recall whether Mr. Hasan in that meeting was concerned that the stiffness values of the hardware hat not been calculated for NPS Class 1 pipe supports?
A Yes.
O And did he express that concern to Mr. Finneran Plai n tif f s' Exhibit F
Plal n tif f s' Exhibit F A Yes, he did.
O And Mr. Finneran understood the concern?
A Yes, he did.
(Tr. 117 118)
Mr. Rencher's testimony confirms Mr. Hasan's detailed account of the August 19th meeting. Both testified that Hasan raised stif fness of Class 1 pipe supports as a caramount safety concern of Mr. Hasan's during the August 19th meeting.
Mr. Hasan likewise testified that he cleaded and becaed Mr.
Iinnefan to recall certain pipe support packages so he could pe;sonal prove to Mr. Finreran that the improper stiffness values had been transmitted to Westinghouse. As Mr. Hasan testified:
O (By Mr. Mack) And what i s it that you said (to Mr. Finneran conceerning stif fness values of Class 1 pipe supports)?
A I explained to him at length -- at tremendous length the what happened in that period when Rencher told me or told us not to include that stiffness of the hardwares for computing the stiffness of the Class 1 piping system.
And after listening to all this -- and than I told him that, why don't you recall those particular packages to look for yourself . . . .
(Tr. 286) 1 Plai ntif f s-Exhibit F m u
Plai n tif f s' Eh<hib i t F
. A . . . I was bringing very, very serious concerns to (Mr. Finneran] right from the morning to the end (of our August 19th meeting) and I was literally, virtually, you know, pleading or begging him that, You have got those packages; please bring it to here; I will show it to you, what was the problems . . . .
(Tr. 484, emphsis added)
A --
I pleaded with him that, Please recall those packages so that I can show where the mistakes are being made, and he refused to recall those packages . . . .
(Tr. 389 emphsis added)
Mr. Finneran's failure to investigate and the:eafter include Mr. Hasan's pleas to recall packages in his August 19th memoranda was intentional. He knew that if Mr. Hasan's disclosure concerning incorrect stiffness values was contained in his August 19th exit interview memoranda, management would have to reported Mr. Hasan's disclosure to the !GC, Obviously, Mr. Hasan had been continually alerted management about this concern since early 1982, wny should Mr. Finneran correct it in 1985?
Indeed, management was engaged in a cover-up of design flaws. No doubt, it was Mr. Hasan's institutionalized knowledge of design flaws that necessitated Messrs. Ryan and Finneran's decision to remove Mr. Hasan from the site. If Mr. Hasan remained on site, he would have obviously brought this and other design deficiencies to SWEC's attention the moment SWEC provided
-3 -
Ptal ntif f S' Exhib.t i rr i
. Plalntif f s' ED<hibit F him with the revised criteria. Obviously, that possibility made the decision to banish Mr. Hasan from the site inevitability.
V. Mr. Hasan's Wrongful Termination Complaints Against Texas Utilities and NPSI Are Not Time Barred.
Mr. Hasan, acting pro-se, filed timely wrongful discharge actions against NPSI and Texas Utilities. Although not represented by an attorney and although he was unfamiliar with the operations of whistleblower discrimination law, Mr. Hasan contacted the U.S. Department of Labor (DOL) and alleged that he had been wrongfully discharged well within the statutes of limitations for both his August removal from the Comanche Peak site by Texas Utilities and his October 1965 layoff by NPSI.
According to a letter from H. .!ack Bluestein, Director, Division of Program Operations, Office of Federal Contract Compliance Programs, U.S. Department of Labor, the DOL acknowledges that Mr. Hasan filed a complaint with the U.S. DOL prior to October 16, 1985. CX. 16.
On the face of the Bluestein letter it is indisputable that, at least as of October 16, 1985, Mr. Hasan had filed a complaint with the DOL and that the DOL had not yet categori;ed Mr. Hasan's action as one covered under Section 210. But the critical evidentiary impact of the Bluestein letter is that it constitutes direct evidence that Mr. Hasan timely filed actions against for his October termination from NPSI. Furthermore, this circumstantial evidence is corroborated by Mr. Hasan's hearing testimony that in August, 1985 he filed charges with the DOL EAI D tifi S '
~ 32 ~ -
v y , '.s '4 r., s, ;
I 4
, Plai ntif f s' Exhibit F concerning his removal from the Comanche Peak site within the 30 day statute of limitations period. Tr. 462. Although the exact dates of these contacts a:a unknown at this time, contact with the DOL in August would be timely for the purpose cf filing a complaint for events which occurred i? August. Mr. Hasan's testimony that he attempted to file charges with the DOL ir August 1985 is f urther verified by two NRC internal memoranda.
In a September 6, 1985 memorandum, NRC Program Coordinator Chet Poslusny memorialized the fact that Mr. Hasan called him on August :8, 1985 to raise safety allegations about Comanche Peak and allegations that he was discriminated against. Mr. Posluny I made note that he told Mr. Hasan to contact the DOL within 30 days regarding his discrimination complaint. CX 26.
In a follow-up memo dated October 8, 1985, Mr. Poslusny again memorializes a September 20, 1985 conversation he had with Mr. Hasan, stating that Mr. Hasan had in fact informed him that he had made contact with the DOL concerning his removal from Comanche Peak but that he was nonetheless informed that "the DOL would not handle his case until the EECC was finished with theirs." CX, 17.
During this time period Mr. Hasan, who is a foreign-bcrn American citizen, who had much difficulty with the English language, and is wholly unfamiliar with the operation of the legal system, petitioned the DOL and EEOC as a pro-se litigant.
Unfortunately, Mr. Hasan failed to retain copies of his
. correspondence with the DOL. Nonetheless, the record i
_ y_ Plai n tif f s' 1
Exhibit F
. Plai ntif f s' j Exhibit F [1
-. is clear -- soon after his removal from Comanche Peak, and within !
the 30-day _ statutory time period Mr. Hasan contacted the DOL and attempted to file a Section 210 complaint. There was unfortunately confusion within the DOL offices Mr. Hasan communicated with, and his complaint was not initially classified as-a Section 210 complaint. But Mr. Hasan did file his charges concerning the improper removal from the Comanche Peak site by Texas Utilities and the improper layoff by NPSI within the statutory time restrictions.
On June 17, 1987, the ALJ issued an order en the timeliness issue. The ALJ ignored the importance of the Bluestein letter l which confirmed that Mr. Hasan had in fact filed timely charges with DOL. Instead the ALJ focused upon the fact that Mr. Hasan was unable to produce a copy of the original ecmplaints filed.
But the Bluestein letter confirms the fact that Mr. Hasan did file a complaint with the Secretary of Labor (SOL).
Unfortunately, Mr. Hasan did not keep a copy of the original, letter he sent to the SOL on or about September 20, 1985. But a complaint cannot be dismissed as untimely just because a pro-se litigant does not keep a copy of the complaint he originally files.
The case, as tried before the ALJ, was limited to Mr.
Has'an's blacklisting complaint against Stone & Webster and Texas Utilities. No proper-record was created concerning the decision to remove Mr. Hasan from tha Comanche Peak site and the decision by NPSI to lay-off Mr. Hasan. Regardless of the Secretary's opinion concerning blacklisting, the August 1985 removal and the
-x- Plai n tif f s' ,
Exhibit F
Plaintif f s' Exhibit F October 1985 layoff must be properly adjudicated. This case should be remanded for a full evidentiary hearing on those two additional causes of action.
VI. The Administrative Law Judge Erred in Not Finding Protected Activity As the ALJ did not issue a direct order in support of Mr.
Hasan, this case must te immediately remanded, with instructions that the ALJ issue a new recommended order rigorously following the line of cases in which internal complaints to management are considered protected activity. He should be instructed to meticulcusly apply the following line of cases to an analysis of the record: Philips v. Interim Board of Min. Op. Apo., 500 F.2d 772 (D.C. Cir. 1974); Baker v. U.S. Dept. In Bd. of Min. Op.
App., 595 F.2d 746 ( D.C . Cir. 1978): Mackowiak v. University Nuclear Systems, 735 F.2d 1159, 1163 (9th Cir. 1984); Kansas Gas
& Electric v. Brock, 780 bF.2d 1505 (10th Cir. 1985); Paulos v.
Ambassador Fuel Oil Co., Inc., 86-CAA-1, Dec, of SOL (A'pril 27, 1987); Willy v. Coastal Coro., 85-CAA-1, Dec cf SOL (June 4, 1987).
The ALJ erred as a matter of law when he ignored this line of cases and applied the Brown & Root v. Donnovan case.
L VII. The Administrative Law Judge Failed To Apply the Dual Motive Test The ALJ was required to apply the dual motive teset. See, e.g., Mackowiak v. University Nuclear Systems, 735 F.2d 1159,
- 35 _ Plai n tif f s' EU(hibit F
- Ptal n tif f s' Exhibit F 1164 (9th Cir. 1984); Consolidated Edison v. Dononvan, 673 F.2d 61, 62 (2nd Cir. 1982). Unfortunately, the ALJ apparently did not understand this test, in his recommended decision the ALJ concluded that protecting internal whistleblowing activity such as Mr. Hasan engaged in would somehow make it impossible to terminate an employee: ...an employee, such as complainant in this case, could guarantee his future continued employment by periodically repeating the phrace, 'I have a safety concern and I may go to the NRC.'" RD&O at page 5.
This reasoning highlights the defective legal reasoning employed by the ALJ. Ragardless of whether a whistleblower engages in protected activity, a whistleblower can always be fired.- The ALJ erred as a matter nf law when he concluded that a finding that Mr. Hasan engaged in protected activity can somehow insulate im from termination.
The dual motive test holds that even if an employee engages in protected activity, he or she can still be fired -- as 1cng as management can demonstrate that the employee who engaged in protected activity was not disciplined more harshly than employees who committed the same offense. Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287 (1977) Ashcraft v.
University of Cincinnati, 83-ERA-7, slip op, of SQL at 13 (Nov.
1,'1984). For example, under the NLRA a union organizer could not be fired for drinking on the job when the company also caught an employee uninvolved in union activity drinking on the job but did not fire that employee. NLRB v. Faulkner :losoi tal , 691 F.2d 51, 56 (1st Cir. 1982).
Pkak O tif f s Exhibit F 1
. . Plai n tif f s' Exhibit F If Mr. Hasan violated a workplace rule (including "not getting along with co-workers"), Respondents could have fired him
-- or not recommended him for rehire. The fact that Mr. Hasan engaged in protected activity has nothing to co with somehow
" guarantee [ing)" his " future continued emptoyment." The ALJ simply failed to apply the dual motive test. When it came time for Respondents to d monstrate that other employees who had similar alleged personality problems were terminated, they failed to produced a single shred of evidence. More significantly, a number of employees with lower overall job ratings were recommended for rehire and in fact were rehired by Stone & !
Webster.
Significantly, thirteen engineers were recommended for hire by Texas Utilities and offered jobs with Stone & Webster who had lower job ratings than Mr. Hasan. CX 5 and 6. Of 28 NPSI engineers offered jobs by Stone & Webster, only 15 were rated equal-to or better than the " good" rating received by Mr. Hasan.
Thirteen had lower ratings, including ratings such as " fair,"
" satisfactory", or " average." CX 5 and 6: Complainant's findings of fact, page 47. This is the critical fact that the ALJ failed to analy:e -- why were employees with lower. job ratings rehired?
If Mr. Hasan's personality problems resulted in low job ratings -- or job ratings equal to or lower than the ratings other employees had who were also not retained on site, the Mr.
Hasan should lose his case, l
{ '
Pla'i ntif f s' .
Exhibit F-l
Ptal ntif f s' Exhibit F EXHIBI'T ONE I
i
. h 1. c" , p, h . f f ~C #
T.m.,
,, - ,e t
Plai n tif f s' it. contained findings ignored by Respondents.
On its face the ALJ's decision fails "to reflect a consideredIresponse to the evidence and contentions of the losing party." Harborlite Corp. v. I.C.C., 613 F.2d 1088, 1092 (D.C.Cir. 1979). An ALJ must analy e the evidence the losing party puts forward. See, e.g., S_t owa r t v. Secretary of HEW, 714 F.2d 287, 290 (3rd Cir. 1983). The ALJ simply ignored the evidence which contradicted Respondents' case. He issued a terse six page decision, of which only three pages are dedicated to explaining the' facts. In juxtaposition to this, Complainant's findings of fact consisted of 52 pages and Respondent's findings of fact went on_for 57 pages. Rather then explain where and why Ccmplainant's detailed accounting of the record was in error
_(which it is not), the ALJ adoped Respondents ' findings of fact without consideration to the numerous contradictions in Respondents' witnesses' testimony. See Footnote 2, infra.
The ALJ erred as a matter of law by failing to review and analy e the record when he wrote his decision. The case should be. remanded on this ground, with instructions for the ALJ to fully analyze the record and issue a recommended decision which is capable of_-proper review by Complainant and the SOL.
l XI. Conclusion l
I-The SOL should issue an order in support of Mr. Hasan. This can be accomplished in the following manner:
i Plai n tif f s' '
l l
Exhibit F
e O Plai ntif f s' ED(hlbit F But the facts are just the opposite. Employees with " fair" and " average" classifications were rehired, but Mr. Hasan, with a job rating of " good," was not. Regardless of who has the burden of proving disparate treatment, the undisputed factual record shows that (1) no other employee was not rehired due to so-called personality problems, and (2) the objective job rating system unquestionably demonstrated disparate treatment.
Just like the union organizer who was caught drinking on the job, Mr. Hasan could not be fired cue to disparate treatment. No one, in the abstract, could question management's right to fire an employee for drinking on the job. But such an abstract right !
is subject to-a critical review under the Mt. Healthy test -- a review to ensure that whistleblowers -- even if they are not ccmplete angels -- that they are not subjected to more harsh punishment than non-whistleblowers.
Unfortunately, the ALJ neither understood nor applied the proper test when analyzing the appropriate disciplinary action management could have taken against Mr. Hasan, even if Mr. Hasan was guilty as charged. If the SOL does not issue an order for Mr. Hasan, the case should be remanded with instructions to the ALJ to properly apply the dual motive test.
VIII. The ALJ's Adoption of Respondents' Findings of Fact 1-128 (with one modification)-Was Improper The ALJ failed to properly analyze the record in this case.
The ALJ simply ignored Complainant's findings of fact in those instances where it contradicted Respondent's findings, or where Plai ntif f s' Exhibit F i
Plal n tif f s-
, Exhibit F
~~1. Complainant's post-trial Findings of Fact and Conclusions of Law adequately addresses every issue and supporti a ruling for Mr. Hasan.~~
2. The ALJ's fatal error concerning: First, the definition of-protected activity, and second, the credibility of Mr. Ryan and-Mr. Finneran can be corrected by the SOL. See, e.g. Universal Camera Corp. v. NLRB,-340 U.S. 474, 402-97 (1951); NLRB v. l l
Interboro Contractors, Inc., 388 F.2d 495, 499 (~nd Cir. 1967);
NLRB v. Miller Redword Corp., 407 F.2d-1366, 1369 (9th Cir.
l 1969).
In the alternative, complainant requests a remand to an ALJ with explicit instructions on how to proceed at remand.
Respectfully submitted,
~~~
Micnael D. Kohn Stephen M. Kohn Attorneys for Mr. Hasan Dated:' February 16, 1988 032AA05
~"~
Plai ntif f s-Exhibit F s
Plai n tif f s' Exhibit F Exhibits
~~1) Speed Memo by Mr. Hasan to Jay Ryan, dated 1/17/83.~~
2 )- Letter from NRC to Texas Utilities, dated January 6, 1988, l
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'fN:TED STATES OF AP. ERICA BETCRE THE SECRETARY OF EABOR
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3.M.A. HASAN, )
)
C:mpirinant, )
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!:UCLEAR PCWER SERVICES, INC.,
.!;E AND WESC;ER ENGINEER!!Vi CCR P. , '
TEX;ss UT:E T;ES ELECTR:C CO., INC., '
}
ReapOndents. )
)
COMPEA DANT'S RESPONSE TO 'u EE3PCNDENTS_ 7IEF TO THE ETCRETARY OF EABOR
~~. C'/ ER'!! EW AND PERSPECT!VE Remcve the obvicus falsehoods ft;m this preceedtr.g and a very stra:ghtforward case of re*aliat2on by Responcents aga:nst Mr. Hasan emerges.1/~~
vr Hasan is and was an exceptional structural enginem . wno c:nsta.tly detected complex and simple design etrors dur;ng tne c e r t i f i ;:a t ie n process of the Cc:tanene Peak facility tnat ettner
~~1. The false statements made in the briefs filed by Respondents' counsel were so grass and outra.)eous that Mr.~~
William Ccunsil, Texas Utilities Executive Vice President, was forced to send a sincere appology to the Intervenor, citizens Associated f ot: Safe Energy (CASE -- who is a party in the ongoing licensing hearings before the Atomic Safety Licensing Board) for the false and mali;ious made-up story that CASE had employed spies on site.
1 -
Plai ntif f s' Exhibit G
Plai n tif f s*
Exhibit G no etner eng.neers on site detected or bothered to report to management.
Sixty-fave of the concerns Mr. Hasar raised to management during nis : enure at Comanene Teak ,' r e set forth in a May 28, 1987 letter f r om t r e NR *, to Tey;
~~ities. This list was intrc uced at trial as C cpla! . .xnibit 14.2/ :n a January 6, 19 8 8 c..s t r espondence , :ne NRC recently informed Mr.~~
Hasan that n:s 65 alleptions set fortn in the May 26th ;etter to Texas Util:*ies nad been "suustantiated."l/
Beyond merely raising safety concerns to management, Mr.
Hasan's concerns were sound, valid and t;'Je. The NRC so fcund.
One of the numerous and mere notorious falsehoods i'
Respondent' caunsel raises in eve l/ post-hearing fil.cc is the assertien that Mr. Hasan never raised a single safety concern to a single manager throughout his tenure at tne Comanche Peak cite.
The most recent episode in which Respondents' counsel claims that " Texas Utilitites was not aware of-Mr. Hasan's having raised any saf ety concerns," is contained in Respondents' Brief in Support of the RD&O, at p. 4. Similarly, on page 5 cf tnis pleading Respcndents likewise state that "Mr. Hasan in fact did not raise any safety concerns while at Comanche Peak."
2.. Hereinafter Complainant's exhibits introduced at the hearing are referes to-as "CX" and Respondents' Exhibits at "RX." Cites to the Hear:ra transcript are indicated by a "Tr." followed by l
the page number.
3._ Complainant has filed together with this pleading a Motion to Augument the Record with a copy of the January 6, 1988 NRC cor respondence to Mr. Hasan.
L Plai n tif f s' s
Exhibit G
PloJ n tif f d'. ;
~~wg .~~
Later stil' in tnis pleading they again claim t none of [Mr. Hasan'sj superlors at Comanche Peak '
had any informatten er belief _that Mr. Hasan nad any safety concerns about Comanche Peak. . . 1 j, d . at p. 13, Fn. 6.
A mere False asser tion is hard to phethem. Respondents are {
well aware that Mr. Hasan continually ble the whistle aoout ,
d:: ens of safety concerns. How can Respondents' counsel make suen a statement in good faith when its own witnesses admitted at tneir depositions that Mr. Hasan had raised de: ens of safety concerns to them while employed on site. F ;
i i
.: . Complainant cites to-the Depositions of Messrs. Chamterlain ,
Renener, rinreran and Rya 1 in this anel in its earlier filed pleading eventhough these despositions were not formally :
introduced into the recore during the hearing. Complainant has been forced to rely on these depositions soley to refute obvious fa250 statements made by Respondents' counsel, or to demonstrate ,
ceyond a_ reasonable doubt that Respondents' counsel relied on perjuroes_ testimony. _ Complainant had no idea that Respondents would reg,11ay resort to e ;*9- false statements or that tney would rescri t.o using perji, testimony even after the perjurous nat ure of the testimony wan .dentified to Respondents and to the AL; . Thus, had it~ not been f or the gross and -outrageous conduct 0,f Respondents' cocasel, Ccmplainant would not now need to rely on the desposition testimony of Messrs. Rencher and Chamberlain.
Uriortunately, it was net possible to predict that Respondents'
~~i. counsel would go to the ext remes -they have in order to prevail ;~~
before the ALJ. Given the unforseen circumstance that Respondents' counsel would regularly present falsehoods to this ttibunal, Complainant formally submits a Motion to Augment tne record with- the Transcripts of Messrs. Rencher, Chamberlain Finneran and'Ryan, filed under separate cover. ,
i.
g I
L _3_ '
L H_ ai n tif f s ' :
i
~~Exhibit G 1~~
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Plai n tif f s' l
. Shibit G j Mr. Renener testified thst of the 65 concerns enumerated in I the May 28th letter frcm the NRC to Texas Utilities (CX 14), he '
t remembered Mr. Hasan bringing to his atention concerns Nos. 8, l
11, 13, 14, 23, 24, 36, 57, 61, and 65. Rencher Depsotion Tr.,
~~at pp. 24; to 252. Similarly, Mr. Chamberlain testified at his~~
i d e po s i t :, o n tnat Mr. Hasan had raised with him concerns nos. 1, 3, 5, 7, 6, 9, 11, 12, 13, 15, 16, 19, 21, 23, 24, 26, 28, 30, 32, i t
34, 35, 36, 37, 39, 41, 47, 48, 58 and 65. Chamberlain Depcsition Tr. at pp.60-164. Indeed, Respondents go as far as to asse.t that the " evidence-was totally without contradiction" that Mr. Hasan-never raised a single safety concern to any of his 6 superv. sors. Respondents' Brief in Suponrt of the RDI,0, at p.
13, rn. 6. The cbvious truth is that Mr. Hasan continually raised to his supervisors dozens of safety concerno, rar frcm being "without contradiction," the record establishes exactly the opposite. The hearing tranDeript demonstrates that Mr. Hasan raised: incorrect calculations of tne Stiffness values of the Class 1 pipe support system (Tr. pp.
, 117-118,-148-149, 235, 237, 285-289;; Richmond Inserts (Tr. 239-
- 241, 245, 247-248); incorrect calculations of punching shiar (Tr.
75, 231-233, 264-266); Inconsistent criteria uses. to calculate the same pipe supports (Tr. 272); Minimium weld violations (Tr.
168, 190, 542):. improper STRUDL laput (Tr. 260, 27), 378, 443-444); ne of improper earthquake loads when calculating pipe !
supports (Tr. 261); incorrect minimium frequency criteria / base plate thickness (Tr. 281); incorrect allowable loads of Hilti bolts (Tr. 243), just to name a few.
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Plai n tif f s '
, Exhibit G lt is netn;ng less than sanctionable conduct for Respcndents' counsel to state that the evidence was "withcut ccntradict:cn" tnat Mr. Hasan never raised a single safety 1
~~ncern to nis supervisors when in fact tne reccrd was just tne cppcsite.~~
the rec:rd is /ttnsut contradiction that Mr. Hasan's superv sic:, Mr. Renener, testified quite clearly and convicingly that Mr. Hasan repeatedly blew the whiatle to him about the stiffness values of the Class 1 piping system, and when asked if that Concern was " safety-related," Mr. Rencher replied "I wculd say sc. Yes." *r. 118.
Ccmpla:nant s counsel is left with the impressicn (indeed tne real:ty) that Respcndents' counsel is incapable of su'mitting t
a pcst-hearing brief that does not contain numerous gross and outrageous falsencods.
The undeniacle truth is tha'; Mr. Hasan found himself surrounded by inccmpetence, managers and line enc ineers alike.
One particular disclosure Mr. Hasan made was that his line superviscr, Mr. Hemrajani, wou]d place a stack of pipe suppcrt packages before him and sign off on the designs without checking enem. Mr. Hasan sat next to Mr. Hemrajani and observed this happ'ening on a daily basis. He could not believo that managers themselves would sign off on documents without doing the required checking of the documents. Production over safety was business L
t as usual in the Comanche Peak pipt support groups, l
I-t
-s- Plai n tif f s '
Exhibit G
Plai n tif f s '
Exhibit G Day in and day cut, Mr. Hasan sat and watched an engineering nightmare. He would find egregicus errors. Whcn ne brought nis concerns to management, he was told to ignore them.
Beyond tne g::.ss inccmpetence of management, Mr. Hasan tecame alarmed over the fact that the pipe support design was ce:ng perfccmed by d;tferent crganizat;cns using different desagn criteria tc ecnstract the pipe support system of the Comanche Pe16 facility.
Mr. Hasar scen reali:ed that pipe supports designed by one organization were being transferred into his organization for certif: cation .! th criteria other than what it had been designed
.:tn. Th:s meart tnat the same pipe support was being designed ar.d certif:ed us;c.g at least two different sets cf criteria.
Mr. Hasan next realized that after he rejected a pipe support, in part:cular when the pipe support's Richmond Insert ces;gn failed, tne r:]ected pipe support was taken out of his grcup and transferred into ancther group where it was certified often without modification. Mr. Hasan could not phathom hcw the same pipe support could be considered defectively designed by one group, cnly later to ce certified by another group without undergoing any type of modification.
Plaintif ts' Exhibit G
Plai n tif f s' Exhibit G .
After cbserving the metnod used by management to certify
pipe supports, Mr. Hasan came to the r.or rect conclusion that tne safety of the Cemanene Peak facility was in jeopardy unless management implemented a uniform set Of criteria, at least witn respect to tne Richmond Insert design.
As time passed, Mr. Hasan, conscience-struck over design anc engineering problems an the pipe support design of the Comanche Peak facility, became more and more determined to resolve the engineering nightmare he had uncovered. He engaged in a steady stream of internal whistleblowing to Messrs. Finneran, Chamberlain, Pencher, Hemrajani, Sherrer, Hill and others.
~~ndeed, Mr. Ravada, when asked if ne ever " told Mr. Sherrer that Mr. Hasan mignt gc tc the NRL," stated "...Yes." Tr. 71.~~
To s cp Mr. Hasan f rom escalating his whistleblowing f rcm internal disclosures to contact with the NRC, management fostered <[
an atmcsphere of :ntimidation and retaliation. Line superv e .'
aculd walk up tc Mr. Hasan and to his f ace aceWe him of being a wnis tleblowe r and spy f o('CASEv These same manage rs (Hemrajani, Rencher, Hill) encouraged line engineers to harass Mr. Hasan.
Tnis harassment often surfaced as religious discrimination (an easily provoked response as Mr Hasan was a religious minority of cne' Muslim in a group supervised and dominated by members of the
-Hindu faith) -- to the point where open religious discrimination (name-calling, etc.) was practiced in the NPS group, by his supervisor, Mr. Hemrajani, and line engineers alike.
I Plai n tif f s '
l _7 Exhibit G i
l l
Plal ntif f s' Exhibit G When Mr. Hasan went so management for nelp, he was told tnat ;
no initimidation or discrimination existed on site. The problem ,
cf retaliation and narassment-- like the engineering design flaws ne also brcught to management's attention -- were all just 1
figments of Mr. Hasan's imagination.
The more management refused to correct the problems Mr.
Hasan encountered, tne mere open and flagrant the harassment and discrimination-became. Tcr example, One line engineer, without provocatien, behind Mr. Hasan's back pulled out a knife and -
droppec it behind his back onto the chair Mr. Hasan sat in. hard ,
at work -- the often-mentioned but unexplained " knife incident."
See, Respondents' Brief to SCL, at p. 8.
The fact that a line engineer was allowed to pull cut a knife and drop it benind the back of Mr. Hasan in plain view of other engineers and make sick and demented religious slurs with the knowledge and complicity of management does not speak to Mr.
Hasan's inability to get along with other line engineers. It merely defines the It>el of harassment and intimidation '
encouraged by management against Mr. Hasan in a vain attempt to ,
control his whistleblowing. Labor case law is replete with examples of employers utilizing employees to harrass and discriminate against another employee for having engaged inprotected activity. There is no difference in the case of Mr.
Haaan.
In spite of the increased ii.timidation and harassment, Mr.
Hasan re'jected more pipe supports than other engineers in every
~
group to which he was ever assigned.
7 *
~~dis'~~
.?...';it G
Plai n tif f s '
Exhibit G II. MANAGEME!JT ' S KNOWLEDGE OF MR . HASAN'S WHISTLEBLOWING ,
ACTIVITIES '
Messrs. Ryan and finneran were shown to have actual l xnowledge of Mr. Hasan's whistleblowing activity. But f or Mr.
Ryan's reccmmendation and Mr. Finneran's decisio.1 to rer'ove Mr.
Hasan from the Cemanche Peak site, Mr. Hasan woulo have been ;
offered a job by SWEC. This fact is nct contested. Wnat i s contested is whether Messrs. Finneran or Ryan had any knowledge of any of Mr. Hasan's safety ecncerns. Respondents contend that they did rot have knowledge of either Mr. Hasan's repeated threats to go to the NRC or even the fact that he had in fact ever raised a single safety concern while emplcyed on site.
Respondents' Brief in Supcort of the RDLO, at p. 4, 13.
Respondents' assertion is both ludicricus and absolutely fajse.
As will be detailed later in this brief (See Sections VII and X, infra.), both Mr . Ryan and Mr . Finne ran corr.i t ted pe r ]u r y in order to conceal knowledge of Mr. Hasan's whistleblowing activity.
Essentially, Mr. Ryan absolutely purjured himself when he denied that PSE pipe supports were being sent for certifiction to the NPS group. This transfer is believed to be highly illegal --
it.no doubt resulted in the improper certification of an unsafe pipe support design. The significance of Mr. Ryan's knowledge of the fact that Mr. Hasan was rejecting PSE pipe supports while in NPS is that.it proves first hand knowlege on the-part of Mr. Ryan
_g_ Plai n tif f s '
Exhibit G e - o.
~ -, e . , - - - n,---v- 4- v.
Plai n tif f s ' l Exhibit G regardirig the reasons Mr. Hasan rejected the supp' orts. Attached < !
to the pipe Supports Mr. Hasan rejected were cover memos stating the reascns the supports had been rejected. ':'hese memos were issued directly to Mr. Ryan and prepared directly at nis request.
Tnus, cy reviewing these memos, Mr. Ryan had complete knowledege !
of all of the reasons Mr. Hasan rejected PSC pipe supports while he was stationed in tne NPS group (1982 through 1984). As is explained in detail infra, not only did Mr. Ryan know all of the concerns Mr. Hasan raised between 1982 and 1984, he was the manager in charge of certifying all of the PSE pipe supports illegally sent to NPS for certificaticn that Mr. Hasan rejected.
Obviously, Mr. Ryan had complete knowlege of every concern Mr.
Hasan raised ever the use of inconsistent cr.ter.a when certifying pipe supports designed by cther groups using different criteria.1/
After re'ecting a PSE pipe support due to differences in criteric, particularly in Richmond Insert design, Mr. Hasan would take the rejected pipe support package to Messrs. Rencner and Hemrajani. Mr. Hasan would show them the reason he was rejecting the package and plead with them to speak to Mr. Ryan about his concerns over certifying pipe supports with different sets of criteria. He particularly pleaded w.th i them to explain to Mr.
~~5. Respondents' claim that Mr. Hasan only rejected pipe support packages directly to line engineers, not to management, and that "none of his supervisors at Comanche Peak had any information or~~
~~j. belief that Mr. Hasan had any safety concerns" Respondents' Brief in Support of the RD&O, at p.13, is ridiculous .on its f ace given l~~
Mr. Ryan's role in illegally certifying the very pipe supports that Mr. Hasan had rejected. For a more detailed account, see Section VI, infra.
10 -
Plai n tif f s '
L Exhibit G
_ - = - - - - - . - - - - .-_ -. - - - - - - -
Plal n tif f s
~~Exhibit G Ryan the need for a single set of criteria when' certifying a e~~
)
1 Rienmond insert. Mr. Hasan's pleas were in vain. Every manager ne spcke with uniformily came back to in. Corm Mr. Hasan that Mr.
Ryan had emphatically rejected his request. (Between January, 1982 and May, 1984, Mr. Hasan requested tne following managers to discvss with Mr. Ryan his concern over the cert fication of Ricnmond insert design acing inconsistent criteria: Mr. Rencher, Mr. Hemra]ani and Mr. Sherrer; in 1985 he requested the same of Mr. Chamberlain and Mr. Hill (Tr. 258, 264-266). Mr. Chamberlain testified that he brought Mr. Hasan's concerns directly to Mr.
Ryan between February and August of 1955, Tr. 168, 190.
Well before Mr. Hasan was transf er red out of NFS, Mr. Ryan's contempt over Mr. Hasan's rejection of pipe supports was so complete that he once made an obscene gec ture at Mr. Hasan wren he saw him in the hallway. Tr. 274-275.
After receiving a retaliatory transfer out of the NPS group (against his wishes), Mr. Hasan was assigned to work under Mr.
Barry Hill. It is while stationed in Mr. Hill's group tnat Mr.
Hasan would repeatedly threaten Mr. Hill that he was about to "go to the NRC," unless his safety concerns .wre adequately addressed. Tr. 273, 378, 443-444. On one of the more l
acr'i.nonious occasions, Mr. Hasan shouted out loudly enough for
~~the entire section to hear his threat to go to the NRC. As Mr.~~
Hasan explained, ". . . they were forcing me to sign ... wrong I documents. . . therefore, trouble was the natural outcome of it."
l Tr. 3753-379. Mr. Chamberlain corroborated the fact that he had
(
=.: dif f $ '
1-Mib!t G l
4
_ Plai n tif f s ' '
. Exhibit G Deen told by Mr. Hall that Mr. Hasan had threateds to "go tc the NBC." Tr. 192. Mr. Ryan was duly infermed of the incident once ne returned frem vacation. Tr. 532, 536.
ndeed, frcm the moment Mr. Hasan stepped foot in Mr. Hill's group, t.; was subjected to extreme harassment. At least once a week Mr. Hill would approach Mr. Hasan and call nim a " spy" or an
agent" for CASE or the NRC. Tr. 270. Notacly, Respondents did not call Mr. Hill as a witness to refute Mr. Hasan's testimony, nor did Respondents notice Mr. Hill for deposition.
Knowledge of Mr. Hasan's safety concerns had to be known to octh Mr. Ryan and Mr. Finneran due to their membership in the
" Design Guidelines Ccmmittee." Tr. 21-22. The C:mmittee had accut 6 members in all, including Mr. Chancerlain. The Design Guidelines Commi.ttee was responsible for all changes made to tne design criteria used by the Pipe Support Design Group (PSE) when qualifying pipe supports.
Often when Mr. Hasan would raise a saf ety concern he wculd refuse to sign-off on the paperwork unless he received in wrt:ing a memo from the Duign Guidelines Committee stating that Mr.
Hasan was to ignore a particular concern when certifying the design of a support. These memos came directly from the Design i s l Guidelines Committue.
1 The memo writing function of the Design Guidelines Committee kept_its members constantly appraised of every safety concern Mr.
Ha;;an raised. Indeed, Mr. Chamberlaintestified that whenever Mr.
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Plal n tif f s '
Exhibit G l
Hasan raised a techn. cal concern during the certif'icatien cf a ,
pipe support, he was forced to present Mr. Hasan with a memcrandum before Mr. Hasan would release the package. Tr. 156.
Thus, as mesters of tne Design Guidelines Committee, Messrs, Ryan and (inneran knew every package Mr. Hasan refused to s;;n
~~ff :n and wny.~~
Two memcs frcm the Design Guidelines C:mmittee addressing Mr. Hasan's concerns were turned over in discovery after they were altered by Mr. Chamberlain at the direction of Respondente' counsel. Chamberlain Deposition Jr. at p. 217. One altered memorandum concerned minimium weld viciations (Concern Nc. 65 as i
ident:fied in CX 14); the other, U-bolt stiffness (cne of tne ccncerns Mr. Hasan raised to Mr. Finneran en August 19, 1985).
Bctn were submitted as exhibits to Complainant's Second Moticn For Default Judgment or in the Alternative for Disqualificaticn (Exnibits 7 and 8 thereto).6/
6. In an apparent abuse of discretion, the ALJ denied Complainant's Second motion for Default /Disqualificaiton (dated June 16, 1987). The motion was based en the facts surrounding the alteration of two key and vital documents concerning Mr.
Hasan's whistleblowing disclosures concerning miniminu weld violations (Exhibit 7) and U-Boll stiffness (Exhibit S). This motion upon receipt, was denied by the ALJ as being
" inappropriate." See Order of Judge Lindeman, Dated June 17, 1987, Respondents were never required to respond and indeed they did not do so. Exhibit 7 constitutes one memo given to Mr. Hasan by Mr. Chamberlain on one pipe support package Mr. Hasan refused to certify until his concern over minimium weld requirements was addressed by the Design guidelines Committee. A second memo concerning weld requirements, CX 9, was also created by Mr.
Chamberlain after Mr. Hasan again would not proceed to certify another pipe support.
13 - ~ .
. ' 'd 0 .11 G
Plal n tif f s '
Exhibit G ..
Obviously, as members of the Design Guidelines Committee, ,
Messrs. Rayan and finneran had intimate knowledge of Mr. Hasan's safety concerns about every issue en which Mr. Hasan caused a memo te be drafted.
In addition to the aceve, Mr. Ravada testafied at lengtn that he had a three n0ur c nversation with Mr. Finneran on August
.6, 1985, cf wnich one hcur nothing but the subject of Mr. ,
Hasan's safety Concerns was discussed, Tr. 78; including Mr.
Hasan's concern ever puncning shear and Richmond Inserts. Tr.
~~75. Mr. Ravada's testimony concerning his hour-long conver',ation !~~
with Mr. Finneran about Mr. Hasan's safety concerns was empnatic.
Yet Mt. Finneran altogether denied the conversation ever tcok place. Indeed, not only did they discuss Mr. Hasan's concerns, Mr. Finneran asked Mr. Ravada if he knew whether or not Mr. Hasan nad gone to the hRC with his concerr.s, and Mr . Ravada testified tnat ne informed Mr. Finneran that Mr. Hasan may have already gone to the NRC. Tr. 75. Once again, Mr. Finneran's memmory failed; he denied the conversation ever took place.. Tr. 26. Mr.
Finneran's mer.mery also f ailed him when he could not recall conversations he had with Mr. Rencher about " spies" for CASE existing on site. Tr. 24. Mr. Rencher had no dificulty recalling theke conversations. Tr. 116 Without question, the concerns Mr. Hasan raised when checking pipe support packages caused Mr. Ryan to fall behind schedule in his effort to certify the plant. Indeed, Mr. Ryan admitted that Mr. Hasan raised -more technical concerns and 3
Plai n lif f s' EtNbit G ,
! Plai n tif f s '
Cxhibit G rejected more PSC packages than anyone else. According to Mr.
J Ryan, Mr. Hasan's repeated rejecticn of pipe support packages caused " disruption" to nas production schedule. Tr. 5i3-544.
111. MR. HASAN'S REJECTION OF MR. RYAN'S P:PC SUPPORTS The simple reality is that but for Mr. Ryan's adverse r r e conne nd a t i o n , Mr. -iasan would have been hired by Stone (,
Webster. Mr, Ryan gave as his only alleged reason for not recorrsending Mr . Hasan the f act that Mr. Hasan's presence on site caused disruption during the certification process.
Tne disruption was caused due to nor renc'ous design flaws Mr .
Hasan uncovered while reviewing pipe support designs. The primary cause of tne design flaws, as far as Mr. Hasan could tell, was due to the use of inconsistent design criteria when designing and constructing the plant.
The cru'x of the problem was that Texas Utilities had established three separate organizations to design and certify discrete portions cf the Comanene Peak pipe support system. They were (1) the Nuclear Power Services, Inc. group _(NPS or NPS!), a subcontractor of Texas Utilities: (2) tne Pipe Support Eng;neering group (PSE), managed and staffed by Texas Utilities its' elf, and (3) the ITT-Grinnell group (ITT), also a subcontractor of Texas Utilities.
Each design group was responsible for developing its own design criteria and for certifying every pipe support within its scope.
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Exhibit G Thun NPS-desicned pape suppor s were to be reviewed and ,
certified exclus:.'ely according to the NPS criteria. If a pipe support designed oy NPS cculd not be qualified pursuant to NPS criteria, ;. was tc ce rejected and redes:gned by NPS. Tne same sas true fcr pipe suppcrts designed by FSC and ITT. It :c, and as, axicmatic that eacn p;pe support was to be certified using enly one set of criteria -- tt.e criteria with which it had been designed. Indeed, pursuant to contract and NRC regulations, ne p;pe support was to te designed according to one group's criteria and cert!fied under another group's criteria.
So much for t*' cry. :n practice, Texas Utilities was apparently engaged :n a fraudulent scheme to certify tne pipe support designs of the Ccmanche Peak plant arbitrarily changing
~~ne scope cf pipe support and certifying it with criteria cther than wnat it had teen designed with.~~
Line engineers, including Mr. Hasan, were not aware that snifting pipe suppcrt packages from gree. oup during the certificatien prccess was illegal. Rat < >
. Hasan only knew tnat management's p:actices were contrar, standard engineering principles. Wnat ne had unwittingly uncovered was an apparently
llegal shifting cf pipe support packages between groups for cettification. Mr. Hasan recognized that the only way to assure the integrity the pipe support system was to institute a uniform set of design criteria for the supports being transferred between groups.
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Plai ntif f s' '
EU<hib i t G '
Mr. Hasan's remedy to tne design flaws he uncovered were
simple: introduce a uniform design criteria. What Mr. Hasan didn't realize was that such a remedy would moot the reason that the pipe supports were being transferred between groups illegally in the first place.
The key concern Mr. Hasan nad over the use of multiple sets of design criteria : certify the same single pipe sup> ort concern 2d the support's anchoring mechanism, known as a Richmend
nsert. As Mr. Hasan reasoned, since there was no way of knowing in advance how the adjacent Richmond Insert had been designed (due to the transfer back and forth cf pipe supports), then there was no way to predict hcw tne cifferent pipe support designs would tnteract sn;uld a pipe suppcrt fail. A brief layperson's definition of a Ricnmend Insert is necessary before the gravity ;
of'Mr. Hasan's concern can be appreciated.
l-L A Ricnmond Insert is a steel structure, shap[ed like a pig's tail (helical spring) that is placed into the foundation at the time of concreting. Once the concrete foundation is cured, a
' steel rod is screwet into the portion of the Richmond Insert that is exposed at the surface _f the foundation. Virtually, the
! entire support system for the Class 1 (safety-related) piping system is anchered to a Richmond Insert.
One concern Mr. Hasan had over using different sets of design criteria when certifying the Richmond Insert design of the plant was that a progressive failure of the Richmond Inserts could easily result because the engineering consequences of
_ interchanging the different designs had not been worked out.
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Exhibit G
> 1 In order to better understand Mr. Hasan's concern, imagine a )
{
- line of dcminoes. Tne force necessary to kncck down the entire ,
i line is only that needed to knock down a single dcmino. The same '
principle applies to Richmond Inserts -- if one fails, the load is transferred to the ad;acent Richmond Insert, and if that insert was not designed to withstand the transferred load it tee will fail; and se en and so en. !
Tne problem uncovered and reported to management by Mr.
Hasan was tnat the use of different criteria to qualify adjacent Richmond Inserts created the potential for a progressive failure 3
of tne entire pipe support system at Cemanche Peak. In a nut shell, one of Mr. Hasan's concerns ovel the Richmond Intser t design was t hM. althcugn each ccmpany created its particular ;
design to assure that the transferred 1 cad of one Richmond Insert onto the adjacent pire support would not result in a progressive failure, there was absolutely no way to determine what would nappen if a Richmond Insert designed under one criteria failed ,
and its load was t ransf erred to an ad;acent pipe support cesigned l using a different criteria. If the Icad was transferred in such L
l a way tnat it caused the adjacent pipe support's anchor to give I
way, a chain reaction resulting in the failure of all the pipe support could follow.
Thus if one Richmond Insert fails and takes its randomly certified neighboring pipe support with it, the combined force will cumulatively take out~all the remaing pipe supports until the entire pipe support system-collapses. The end result is a 1
meltdown.
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Exhibit G .
Day in and day out, Mr. Hasan pleaded wi,th management to ,
correct this potentia;iy catastropnic design deficiency. He demanded that a uniform design criteria be usud in certifying Richmond Inserts, cr at the very least that calculations and/or experiments be performed : determine tne engineering consequences.cf using d:fferent criteria on the same pipe supports.
Indeed, Mr. Hasan was bicuing the wnistle on the consequence of a fradulent scheme Texas Utilities implemented to certify as safe an unsafe pipe support system. By using three separate sets of criteria, Texas Utilities had created a complex scheme where a rejected pipe support could ce sent frem group to group to find criteria.that would alicw that parttcular pipe support to be
'ertified.
. As it wculd turn out, Mr. Ryan oversaw the transfer of pipe supports frcm grcup to group. In effect, he was one of the chief ringleaders behind the fraudulent certification process.
Obviously, Mr. Hasan's constant whistleblowing over the use of nultiple sets of criteria to certify the same pipe support and his constant rejection of pipe-tupports due to the use of inconsistent criteria particularly vexed Mr. Ryan for at least tw6 reasons: first, it exposed the illegal scheme to possible detection, and second, it slowed production, interfered with schedules and caused cost over runs.
~~
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Plal n tif f s
~~Exhibit G IV. THE FRAUDULENT CERTIFICATION PROCCSS l~~
Mr. Ryan, Mr. Finneran, and others were nothing less than ]
crim2nal racketeers engaged in a scheme to certif y as caf e a defective;y designed and constreeted pipe support system.
The senere was s;mple: :f a modified pipe support could net be certified by one group, the " scene of respcnsibility" for the failing pipe support was transferred to another group in the nope of certifying it without any rework. Rencher Depositica Transcript at p. 264: Chamberlain Deposition Transcript at pp.
.95,-186, 190.
In essence, ne fraudulent seneme for certifying defective pipe supports with multiple sets of criteria was illegal and resulted in a knowingly unsafe design. But Texas Utilities management did not care because it saved them money and kept tnem on schedule.
Mr. Chamberlain refers to this illegal scheme as the "go-around." Chamberlain Depcsition Transcript at p. 190. As the l name implies, a pipe support design that could not be certified t
l' under its criginal criteria would go around from group to group in search of criteria that would allow certificatio*',
This fraudulent scheme (hereinafter referred to as the "go-around scheme") was identified in the May 28, 1987 list of the 65 ,
f concerns Mr. Hasan originally identified in Cx 14.
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Plai n tif f s '
Exhibit G According to Ccncern No. 23:
There is a concern that if supports did not meet the appropriate design criteria using the NPS design specification, the supports were cent to another pipe support design group, such as PSE, and would be considered acceptable using different design criteria. This ccndition indicates that different design criteria was used in the various pipe support dasign groups (NPS, ITT-G and PSE).
See Cx 14 at p. 3.
When Mr. Rencher, One of Respondents' own witnesses, was asked under cath during nic depcsitien if Concern No. 23 were true, he answered with an absolutely unqualified "Yes." Rencher Deposition Transcript at p. 247. Mr. Ret.cher oversaw both tne NPS and ITT groups. He had first hand knowledge of the practice.
Whether or not he knew it was illegal is unknown.
Similarly, when Mr. Chamberlain was asked under cath during his deposition whether Concern No. 23 were true, he likewise testified unequivecally that it was ccmmon practice on site to
" transfer responsibility" from group to group during the certification ptccess. Chanberlain Deposition Transcript at p.
95. Mr. Chamberlain pointed out during his depos: tion that one cf the reasons pipe support packages were shifted frcm grcup to group was that modified Richmond :asert designs on site eculd not De certified pursuant to their or:.ginal design eriteria.
According to Mr. Chamberlain, if one group "did not have criteria addressing the Richmond Insert tube steel design...then we would transfer responsibility [from the group that originally designed the support) to the site engineering group [PSE)." Chamberlain Deposition Transcript at p. 95.
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Exhibit G .
The go-arcund 'neme was brought expressly to tne attention cf ine ALJ during the nearing and explicitly briefed in Ccmplainant's pcst-hearing brief and reply brief. Prom nent;y i
stated therein was the testimeny Of Mr . Rencher :
O. ...were you aware whether or not Mr. Hasan r e 3ect ed Mr . Ryan's pipe suppor t engineering gt:up tPSE) pipe suppcrts while working in
'four group [NFS]?
1 A. There were pipe supports tnat were rejected out of my group, and I am certain Mr. Hasan had reviewed come cf those.
Q. And were they coming from Mr. Ryan's group?
A. Yes, they were. '
Q. .....ould Hasan attach a meno to (tne PSE packages ne was rejecting)?
A. Yes....
O. And !Hasanj would sign those memos rejecting
[Mr. Ryan's packages ccmin, from PSE]?
A. Yes.
Hearing Transcript, at pp. 120-121. Also see pp. 125, 130, 239, 2?5.
Undeniably, the pipe supports making the go-around between FSE and NPS were being sent in an effort to get them certified.
Accc Jing to Mr. Rencher's deposition testimony:
O. ...the NPS gecup was rejecting PSE supports during the certification crocess?
A. Yes, I was aware of that.
O. Were you aware of that in 1983?
A. Yes.
Q. ...in 1984?
A. Yes, sir. _. . .
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Pial ntif f s' Exhibit G e Q. ...in 1985?
A. Yes.
Q. The NPS group was re;ecting PSC packagec d u r i r.g tne certification process, rignt?
A. ies.
Q. Of th:se tnat were ceing rejected, were they ever then recalculated under different cr terta?
A. Yes.
C. And tnen they were certified after they were recalculated uder dFfferent criteria?
A. ies.
Bencher Depc3;ticn Tr., pp. 78-81, (emphasis added).
Mr. Renener went en tc testify that he had had numerous conversaticns altn Mr. Ryan about new to lower the rejection rate cf the PSE packages going into NPS. Rencher Deposition Transcript at p. 67 Indeed, cur:ng the hearing, Respondents' cwn counsel elicited testimony frcm Mr. Ravada to the effect that NPS re;ected pipe supports frem PSE. In the words of Mr Ravada:
"Mr. Hasan's group (NPS) rejected some of the supports of our group (PSEj on the basis of the Richmond inserts failing...and (thise} support (s} came to our grouc (after that for certification)." Hearing Transcript at p. 88.
T li T!lili s ' .
3.hibit G
1 .
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Plai n tif f s *
!. Exhibit G I +
V. THE CO-AROUND SCHEME V:OLATED NRC REGULATIONS AND BREACHED CONTRACTUAL AGREEMENTS
The licensinc cf ec~nercial nuclear power facilities is regulated c3 tne Nuclear Regulatory Ccc.missicn pursuant to the Energy Reorganization Act ( ERA) . The ERA gives the NRC the pcwer to enact necessa:) regulaticns. Pursuant to 10 C.F.R. Part 50, Appendir d (Quality Assurance Cr:teria for Nuclear Power Plants),
" Des;gn enanges, including field changes," shall conform to the "cr:ginal des;gn and ce atpreved by the organization that p_erformed the original design " and that " changes to documents shall be reviewed and approved by the same organications that performed the criginal :ev:ew and approva1. " _
10 C.F.R. 50, App.
B (!) and (VI) (Empnasis added). Appendix B establishes that under no circumstances are pipe supports to be transferred cetween groups during the design or field modification phases.
Appendix B forbids the transfer of PSE-designed supports into NPS for certification. :t .:kew:se forbids the transfer out of NPS _
to tne PSE grcup pipe supports that could not be certified under NPS cr;teria. Appendix B likewise establishes that field and design mcdifications have to be made by the organizati0n wh;ch designed the p;pe support.
The record establishes that Texas Utilities management (Messrs. Ryan, Chamberlain, and Finneran) instituted a scheme to transf er pipe supports f rom group to group during the -
cert:fication process. Both Mr. Ryan and Mr. Finneran knew that this practice to be in violation of both NRC regulations and the contractual arrangements between NPS, ITT, and Texas Utilities.
- 24 -
P'DIUfS*
Uhib:t G
- Plal n tif f s *
. Exhibit G The test;meny establishing that pipe supports were cert 2fted ,
by organizations etner than the organi:ation certifying the original design 25 :rrefu:able. Mr. Ren:her, without qual;fication, tes*..f.ed that tne "tJPS gr oup was rejecting PSC packages during tne certification process." Rencher Deposition Transcript at p. 31 (empnasis added). Mr. Rencher further testified inat the PSE pipe suppor ts t ransf er red into !JPS could not ce qualafied, and wnen tnat nappened they were again transferred and qualified using still other criteria. Indeed, Mr. Rencher testified that a full "25 percent" of the PSE pipe supports transferred intt tips were rejected and returned to PSE and " recalculated under different c:iteria." hencher Depoc! tion Tr., at p. 81.
Otm o u s l y , M r . Ryan i:nowingly violated 10 C.F.R. 50 App. B when he transferred ;he PSE pipe supports into ?JPS. He compounded the violation wnen he transferred the same pipe supports back out of i;PS and into PSE whenever the support could not be certifiec by NPS.
tJo t cnly did the illegal transfer of pipe supports violate tiRC regu'.ations, It viol.ted the contractual arrangements between Texas Utilities and i t s subcont ractors, !JPS and ITT. In perhaps t he 'only t ru thf ul concent Mr . Ryan made during the hearing,- he l
I explained that There were separate contracts. The original PSE designs were (to be) reviewed by PSE. The original NPSI designs were (to be] reviewed by tJPSI.
l l
Hearing Transcript at p. 550.
l
.i bbit G l
I .
Plai n tif f s '
l Exhibit G VI. MR. R'iAN WAS MANAGEMEN!'S POINT MAN DURING THE ILLEGAL CO-ARCUND SCHEME AND AS SUCH DIRECTED IT Every scheme needs a key player. In the case of the go-around scheme, ;* a. ..e ne other than Mr. Jay Ry:n. Mr. Ryan
aersaw the trancter af pipe support packages frcm group to group and used tne PSE grcup as the staging ground. All rejected pipe supports, it seems, either originated cut of PSE or were transferred into PSE (and then apparently transferred elsewnere).
Just as the testimony of Messrs. Renener, Ravada, and Hasan established tne NPS-PSE transfer, Mr. Chamberlain's depositicn established the TT-PSE transfers. As Mr. Chamberiain testified:
...some companies did not have criteria addressing certain types of design. For example, ITT Grinnel' did not have criteria addressing the Richmond insert tube steel design. If [a pipe support] got redesigned that way, then we would transfer responsibility for that hanger from
!!TT-)Crannell to the site engineering group (PSE).
Cnamberlain Depcsition Transcript, at p. 95 (emphasis added).
The process of transferring pipe supports back and forth setween groups generated paperwork. The paperwork problem occurred after a pipe support was transferred and the second group still could not certify it. Only then would a line engineer fill out a three part " speed memo" addressed directly to Mr. Ryan. Thest speed memos unrecorded anywhere on site, were used to explain to Mr. Ryan the reason a particular transferred pipe supports had been rejected.
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Plai n tif f s '
Exhibit G .
Mr. Rencher testified both during the deposition and at the ,
hearing about the creation of thes? speed memos during the go- l around scheme:
0 [ W) hen Mr . Hasan r e;ected Ryan's pipe suppor t packager lne wou'd) attach a memo to those l packages.
A. Yes....the memc would te initiated in my gr:up, yes.
O. And (Mr. Hasan} wculd sign those memes re]ecting (the PSE-designed pipe supports that he could not certify using the !JPS criteria)?
A. Yes.
Tr. 120-121.
The speed memes attacned tc tne rejected pipe supports were net icgged cr recorded en si'.. They were simply cover memos directed tc Mr. Ryan and, as such, Mr, Ryan was free to do with them as he chos2. He threw them away, destrcying the paper trail that would tell why the pipe support had been rejected. He was then free to get the pipe suppcrt certified elsewhere, albeit illegally. The fact tnat Mr. Hasan would reject pipe supports and attaen a memo to the package addressed directly to Mr. Ryan, and that thereafter the very sane pipe support would be certified in another group without modification is undeniable, as the f ollowing testimony of Mr. Rencher demonstrates:
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Hal n tif f s '
Exhibit G Are ycu aware whetner or not O. (By Mr. Konn) ,
Mr . Hasan could not certify...seme of the packages he was cnecging?
He could not certify seme A. [Dy Mr. Rencher) of the packages because o' the NPS criteria on Richmend inserts, yes.
PSC group O. Did you take inose pacu.ges to the for certification?
A. These supports were re:ected to toe FSC group.
Q. By " rejected tc tne FSE group," what do you mean?
A. Well, he attached a memo to it from my group to the PSE group saying the supports were re ected for the following reasons...
And would the PSE group then certify the Q.
pac < ages...
A. ...yes.
Q. (By ". r . Kenn) And tnev ceuld do that because PSE was using ditterent :riteria tnan NPS?
- -n A. Y.es.-
Rencher Depcsiticn Tr., at pp. 96-97 temphasis added).
On e the memos were destroyed, no paper trail of the go-around seneme remained.
Not cnly was the transfer of pipe tne destruction of the paperwork suppcrts illegal, but so was m,
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Plai ntif f s '
Exhibi-accompanying tne rejected sv; urts.1/
to date, it would p:n snat "' . ' t w o <.. .' f c.uch cover men.os esWped Mr . Rya: aatchful ., .c sm is frcn a Mr.
M.J. Kaplan to M- ,an P tac *
'.,xnicit 1). This speed memo clea-.y ' r ' .e: t h-
~~i !ue to problems~~
~~.- . Kap:.an (wrn 't m co fr' tv nia a '"ad~~
~~ejectisn of p..e -~~
. Hen.r a j a n i i founc when atte7 r;g *
. ,4ned diee support with t
NPS ct;teria v .. a ' og a the '
. The sreed memo clearly states that se pi.pe .upoor- H Bage aas being reje ed l during the certificat ; pt;
~~us. Ir 'ed, tne reply portion of s~~
this memo signed by Mt nenener and states that the pipe sup; O r t , as rejec ud by Mr. h .h p l , coulc 'onetheless be
" certified' under NPS criterza pursuant to autho:ity from NPS's home office.
L 9
~~7. Indeed, a 10/18/84 ASLB Order demanded T;xas Utilities to~~
~~( provide the Licensing Boatd with '.. 311 relevant memoranda and deficie..cy paper~~
~~hat indivate dicectl-j or indirectly the~~
~
awareness and resolution..." for every " unstable support" exis, ting on s3*.e.
6. Mr. Kaplan was not identified in Respondents' answers to interrop tories requesting the identity of all of Mr. Hasan's supervisors. Indced, when Complainant's counstl attempted to ask '
questions about Mr. Kaplan during depositions of Respondent s' witnesses: Resp':ndents ' counsel refused to allow the witness to answer the questions. Some of these questions were certified for the purpose of appeal,
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Exhibit G ,,
The fact that the NPS home office was involved in certifying PSE-designed pipe supports demonstrates that the t!PS home of fice would have known of the illecc1 scheme. Respondents' claim that NPS had nc knowledge of Mr. Hasan's whistleblowing activities is simply not credible, given the apparent complicity of NPS in the ge-around seneme.
The arrogance and utter centempt for law on the part of Respondents is demonstrated in that after Messrs. Hasan, Rencher, and Ravada had testified at length about the go-around scheme, Respondents allowed (indeed encouraged) Mr. Ryan to lie stra 9t-faced that the scheme never existec -- cr that at least Mr. Ryan nad no xnowledge of it. Mr. Ryan's repeated denial of the fact tnat pipe supports were being transferred back and forth between groups is disgusting, immoral, unethical, and contemptuour.
Simply stated, it is perjury.
Mr. Ryan chose to perjure himself ratner than admit to the go-around scheme, when in fact he was the key player. His testimony was clear and unequivocal -- that Mr. Hasan never reviewed a PSE pipe support while working in the NPS group. This testimony is consistent w ith his sworn and signed deposition testimony, wnich reads:
v iBy Mr. Kohn) Did you know that Mr. Hasan as re]ecting packages from your group?
A. ,ey Mr. Ryan] No. Why would he be?
.)
Q. Did Mr. Hasan reject PSE packages due to inconsistenc criteria (between] NPS ';
guidelines (and PSE guidelines)?
A. He didn't review any PSE packages.
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i Exhibit G .
i Q. ...your testimeny is that Mr. Hasar. reviewed no PSE packages?
A. [Hasan) only reviewed NPSI packages when he was in tne NPSI group.
. , a Q. (D]jd Mr. Hasan evt. reject
~~PSE package that had already oeen certified because at did not meet NPS guidelines?~~
A. Ycu can't cross guidelines.. you don't cross design guidelines to review packages.
Ryan Deposition Tr., at pp. 8-10.
l-Similarly, Mr, Ryan's hearing testimony states that while in the NPS gro p, Mr. Hasan never reviewed a PSE-designed pipe support package:
l?, (By Mr. Mack) And were (PSE-designed pipe supports) ever reviewed by anyone at NPS?
A. (By Mr. Ryan) No....NPS would have reviewed their original designs. Personnel in PSE would have reviewed PSE designs.
Q. Well, what if, in fact, what occurred was something came out of PSE and at was being reviewed by NPS? Would that create a problem?
A. It wouldn't happen.
It would never happen?
A. No.
Q. Okay. So that while [Mr. Hasan) worked (in l the NPS group) no package designed in your
[ group (PSE) would ever be reviewed by Mr.
Hasan, i
A. That is correct.
1 Tr.'540-541.
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, s 1;Dib!I 3 Q. Are you certain that none of yout (PSE) ,
packages were ever reviewed by Mr. Rencher's group (NPS) during the time...Mr. Hasan was working there?
A. There were separate contracts. The original PSE designs were reviewed oy PSE. The original NPS designs were reviewed by NPSI.
Tr. 549-550.
VI. IN V!OLATION OF LAW AND LEGAL ETHICS, RESPONDENTS' COUNSEL ALLOWED MR. [YAN TO PERJURE HIMSELF Respondents' counsel cannot in good faith deny knowledge that PSE-designed packages were being transferred into the NPS group and thin certified with NPS criteria. The facts leading to this conclusion are inescapable.
First, Respondents' ccunsel was present during the
-deposition testimony of Mr. Rencher and Mr. Chamberlain. Indeed, when Mr. Rencher was questioned about the illegal transfer of pipe supports frcm PSE to NPS, Respondents' counsel interrupted the questioning to apparently correct Complainant's counsel's questions regarding the direction of the flow of packages between NPS-and PSE:
Q. (BY MR. KOHN) The NPS group was re]ecting PSE packages during tne certification process, right?
A. Yes.
Q. Out of all the NPS packages going to PSE, what percentage were being rejected?
A. Of all the NFS packages going to PSE?
MR. WOLKOFF: You've got it reversed.
Rencher Deposition Tr., at p. 81.
s Plai n tif f s'
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Exhibit G
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Clearly, Respondents' counsel, Mr. Wolkoff, had a. grasp of t he apparently illegal transf er of pipe ' supports be tween PSE and NPS sufficient to allow him to interrupt Complainant's counsel's questioning to assert his knowledge of the direction of how the
_ pipe supports flowed between PSE and NPS.
Similarly, at the hearing, Respondents' counsel, Mr.
Wolkoff, suojected Mr. Rencher, under oath, to a series of leading questions that detailed the flow of pipe supports between PSE and NPS:
BY MR. WOLKOFF (Cross-examination of Mr .
Rehcher}
Q. During the time period that Mr. Hasan worked unde. your supervision at Comanche Peak, how many different sets of design criteria were in place?
A. There were three...ITT Grenelle (sic!, NPSI and the PSE design guidelines.
Q. And did they differ one to another in certain respects?
A. Yes, they did.
Q, 'But I take it each pipe (support) that was cualified had to be qualified under one of the tnree different sets of criteria. Right?
A. That is correct.
Q. What cet of criteria was employed in (the NPS] group?
A. The time he (Mr. Hasan] was in my group, the NPSI criteria.
Q. And what about this gcoup with Mr. Ryan where the packsces were comino from Mr. Ryan? What Eype of criteria were employed there?
A. That was the PSE desian cuidelines.
_ 32 _ Plai n tif f s -
Exhibit G
q ,
ro lalntif f s' Exhibit G .
O. And Mr. Hasan's complained to you when he reviewed those packages [refering to Mr.
R an's PSE packages ) that the criteria that Mr. Ryan's grouc used were not the same as tne criteria that he was using.
A. Yes.
Hearing Tranocript, at pp. 124-125 (emphasis added).
The fact that Respondents' counsel could lead Mr. Rencher by the nose detailing the transfer of pipe supports between PSE and NPS, establishes knowledge on the part of Respondents' counsel.
As Mr Wolkoff's questioning of Mr. Rencher establishes, Respondents' counsel obviously had to know of the illegal transfer of pipe. supports between grcups. How else could he lead his own witness through the illegal t ransf er process in the first place.
It is Mr. Wolkoff himself who states cn the record that pipe support, were " coming from Mr. Ryan('s group]" only to be
'" reviewed" by NPS and certified with different criteria than the criteria "Mr. Ryan's group used" to design the pipe support in the first place. The fact that the testimony Mr. Wolkoff provided -when examining Mr. Rencher resulted in some of the strongest evidence demonstrating the fact that pipe supports were illegally being transferred between the dif f erent groups on site
~~isI the greatest indictment imaginable.~~
Given Mr. Wolkoff's questioning of Mr, Rencher during the hearing, coupled with his correction of Complainant's counsel L during Mr. Rencher's deposition, demonstrater beyond any Leonceivable doubt that Respondents' counsel had actual knowledge Plai n tif f s '
Exhibit G
Plai n tif f s -
EU<hib i t G of r.h e fact that Mr. Ryan was sending PSE-designed pipe supports .
to NPS for qualification using NPS criteria.9/
The facts speak-for itself: after correcting the record as to the direction of the flow of packages between NPS and PSE during Mr. Rencher's deposition, and after leaditg Mr. Rencher through the illegal transfer of pipe supports oetweer. NPS and PSE when he testified et tr.e hesting, Respondents' counsel allowed Mr. Ryan to falsely tes:ify that pipe support rackages were not being transf er red between PSE and NPS.10/
l.
9. Indeed, the Ropes & Gray law firm, who represents the Respondents, was lead counsel in the licensing hearings before the ASLB. Furthermore, Mr. Wolkoff submit;ed afidavits on the part of the entire Ropes & Gray law firm and therefore, the knowledge of the attorneys engaged in the licensing proceedings before the ASLB must be imputed to Mr. Wolkoff as well. Also, as detailed in Complainant's Second Motion for Default /Discjualificaiton, at p. 13, a co-counse.' relationsnip oetween predecessor counsel, who witndrew pursuant to settlement for this proceeeding, and tha Ropes & Gray firm exists (or existed when relevant to this :ase). Therefore, knowlege on the part of predecessor counsel is likewise imputed to the Ropes &
Gray law firm concerning knowledge of the transfer between PSE and NPS pipe supports during the certification process.
Beyond knowlege on the part of Ropes & Gray over the issue of the apparently illegal transfer of pipe supports between the various groups on site, the. fact remains that exhibits apparently originally altered by predecessor counsel during trial preparatior. were submitted onto the record of this proceeding by Mr. Wolkoff with the knowledge that said exhibits were altered.
~~10. As will also be demonstrated in Section VIII, infra.,~~
Respondents' counsel evdidently suborned perjury after' Complainant initialy attempted to expose to tne ALJ th. - Mr. Ryan had perjured himself at the hearing. In their Reply brief, Respondents' counsel defended Mr. Ryan's perjurous statements ,
with false and misleading facts intending to, and in fact suceeding in, misleading thc ALJ about the perjurous nature of Mr. Ryan's testimony.
l Plai n tif f s '
Exhibit G s
e.+.
Plai n tif f s '
Exhibit G '
Regardless of when Respondents' counsel came to know of the .,
illegal go-around scheme, he was under a legal and ethical duty to stop Mr. Ryan from perjuring himself at the hearing. If Respondents' counsel did indeed know that Mr. Ryan was about to perj;re himself and failed to halt this travesty of justice, Respondents' counsel is utterly inconsistent with his duty as a court officer and warrants the imposition of harsh sanctions, as the case law below demonstrates. Following the case law on perjury and subornation of perjury, Complainant will demonstrate that not only did Respondents' counsel allow its witnesses to perjure themselves, but that counsel suborned the perjured statements as well.
Without question, "an adverse party's fraud or subornation of perjury permits relative free reopening of the judgment (in this case recommended decision) when the perjury goes to the heart of the issue." Metlyn Raalty Corp. v. Esmark, Inc., 763 F.2d 826, 832 (7th Cir. 1985). Also see, McKinsick v. U.S., 379 F.2d 754 (5th Cir. 1967); Rosier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978); Harre v. A.H. Robins, 750 F.2d 1501, 1503 (llth Cir.-1985).
As an administrative agency, the Decartmeat of Labor has'the
" inherent" power to do what is reasonably necessary to prevent fraud, irrespective of statutory authority. Alberta Gas Chems.,
Ltd. v. Celanese Corp., 650 F.2d at 12-13 (2nd Cir. 19__).
There is "no right whatever -- constitutional or otherwise -- for a defendant to use false evidence." Nix v. Whiteside, 106 S.Ct.
I Plai n tif f s '
, Exhibit G
Plal n tif f s
~~Exhibit G -~~
989, 998 (1985). Any attorney who even cooperates with a ,
client's planned perjury risks " prosecution for suborning perjury, and disciplinary proceedings, including suspension or disbarment." Id. at 998. Also, any attorney "who aids false
.estimony by questioning a witness when perjured respcnses can be anticipated risks prosecution for subornation of perjury...."
Id. at 996. Simply put, "under no circumstances may a lawyer either advocate or cassively tolerate a client's giving false testimony." Id. at 996 (emphasis added). Even an attorney who attempts '.o remain willfully ignorant where known facts call far furthe: investigation violates his professional and legal duty should he refuse to investigate tr.2 situation further. Florida Bar v. McLaahren, 131 So.2d 371, 372 (Fla. 1965) (suspension of attorney for failing to make reasonable inquiry); State v.
Zwillman, 270 A.2d 284, 289 (N.J. 1970) (attorney has responsibility to inquiry into falsity of client's representations if he "should know or reasonably suspect that the client's representations are false.") Also see, United Gtates ex rel. Wilcox v. Johnson,~555 F.2d 115, 122 n.13 (3d Cir. 1977)
(DR4-101(C)(3) read to require disclosure); McKissick, 379 F.2d 754, 761-62 (5th Cir. 1967); United States v. Crasso, 413 F.Supp.
166, 171 (D. Conn. 1976) (" probable perjurious testimony must, of course, be immediately reported to the presiding judge in the interests of justice and to preserve the integrity of the judicial process"); In re Hoover, 46 Ariz. 24, 30, 45 P.2d 647, 649-50 (1935); Hinds v. State Bar, 19 Cal. 2d 87, 93, 119.P.2d Plai n tif f s '
Exhibit G ;
r tal n titis ' l Exhibit G-l 134, 137 (1941): Thornton v. Jnited States, 357 A.2d 429, 437-38 !
(D.C. 1976).
As the depositions and hearing testimony of the pertinent l witnesses occurred exclusively in the state of Texas, it is axiomatic that the standards set forth under Texas state law are the minimum attorney standard of conduct counsel must adhere to.
Under Texas law, "a lawyer shall not( )
(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or ,
fact.
(6) Participate in the creation or preservation of evidence wnan he knows or it is obvious that the evidence is false.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.
(S) Knowingly engage in other illegal conduct or conduct contrary to a Disciplina ry Rule. "
Texas Code of Prof. Resp. DR 7-102 (A)(4)-(S). Tex. Civ. Stat.
Ann Tit. 14 app. Cit. 12 58 (Vernon 1973). In additien, A lawyer who receives information clearly establishing that:
(1) His client has, in the course of tne representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and ;f his l client refuses or is unable to do so he shall l reveal the f raud to the af fected person or
~~tribunal.~~
(2) A person other than his client has perpetrated a fraud upon a tribunal she
promptly reveal the fraud to the tribu Id. at (B)(1) and (2).
Plai ntif f s '
l- Exhibit G
, - Plal n'tif f s
~~Exhibit G In Nix v. Whiteside, the Supreme Court p'ints o out that: -~~
The more recent Model Rules of Professional Conduct (1983) similarly admonish attorneys to obey all laws in the course of representing a client:
" RULE 1.2 Scope of Representation a a a
"(d) A lawyer shall not counsel a client to engage, er essist a client, in conduct that the lawyer knows is criminal or fraudulent...."
Both the Model Code of Professional Conduct and the Model Rules of Professional Conduct also adopt the specific exception from the attorney-client privilege for disclosure of perjury that his client intends to commit or has committed. DR 4-101(C)(3) (intention of client to commit a crime):
Rule 3.3 (lawyer has duty to disclose falsity of evidence even if disclosure compromises client confidences). Indeed, both the Mcdel Ccde and the Model Rules do not merely authorize disclosure by counsel of client perjury; tney recuire such-discloure. See Rule 3.3(a)(4); DR 7-102(B)(1);
Committee on Professional Ethics and Conduct of
! cwa State Bar Association v. Crary, 245 N.W.2d 298 (Iowa 1976).
These standards confirm that the legal profession has accepted that an attorney's ethical duty to. advance the interests of his client is limited by an equally solemn duty to comply witn the law and standards of professional conduct; it eiecifically ensures that the client may not use false evidence."
'd., 106 S.Ct. 988, 995 (1986)(footnote omitted, emphasis in original).
, Unquestionably, the Fifth Circuit has always required mandatory disclosure by an attorney to the Court whenever fraud, l_
including perjury, appears to be present. If any attorney fails to do so, the court states that the offending attorney should be l'
l Plal n tlf f s '
Exhibit G 1
j.
Plai n tif f s '
Exhibit G
. ~
subject to discipline had he continued in the defense without making a report to the court. The attoiney not only could, but was obligated to, make such disclosure to the court as necessary to Withdraw the perjured testimony from the consideration of_the jury. This was essential for good judicial administration and to protect the public.
.Y c K i s s i c k , 379 T.2d 754, 761 (5th Cir. 1967). l V::. RESPCNDENTS' COUNSEL IS GUILTY OF SUBORNAT ON OF PERJURY j Federal statute defines subornation of perjury as the procurement of perjury: "Whoever procures another to commit any per;ury is guilty of subornation of perjury," 18 USC 51622.
Perjury is defined as:
The willful assertion as to a matter of fact, coinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being material to the issue or point of inquiry and known to such witness to be false.
S'ack's Law Dictionary, Revised 4th Edition.
Clearly, Mr. Ryan willfully asserted at a judicial proceeding under oath material false statements concerning the transfer of pipe supports between groups and the improper use of in'ppropriate a design criteria.
! Additionally, it would seem that Respondents' counsel l
allowed Mr. Ryan to make the perjured statements, knowing that Mr. Hasan's case rested on the premise that he blew the whirtle on the use of multiple sets of criteria during-the certification of the Comar.che Peak pipe support system.
40 - Plai n tif f s '
Exhibit G
Plai n tif f s ' '
Exhibit G The fact is that Respondents' counsel knew in advance that ,
Mr. Ryan wculd perjure himse.f rather than admit ;nat multiple sets of criteria were used to certify the same pipe support.
. It would seem that Mr. Ryan's false testimony regarding the certification of PSE-designed pipe supports with NPS design criteria constitutes perjury, and trat Respondents' counsel's ,
allcwing Mr. Ryan to testify falsely it his deposition and during the nearing (the same counsel is believed to have represented Mr. -
Ryan personally during this proceceding) approached subornation of perjury. "Under no circumstances" is an attorney even allowed to " passively tolerate a client's giving fa.se testimony," Nx
v. Wniteside, 106 S.C. 988, 996 (1986) (emphasis added). If that at ctney snould in any way cooperate with a client's planned per;ur, or even " aids false testimony by questiceirig a witness when perjured responses can be anticipated risks prosecutior, for subornation of perjury " including suspension or disbarment." id.
at 596-998.
The Fifth Circuit held in McKissick, that any atterney who even attempts to remain willfully ignorant where known facts call for further investigation violates his professional and ie7al duty should he refuse to investigate the situation further.
McKissick, 379 F.2d 754, 761-62 (5th Cir. 1967). Also see:
Florida Bar v. McLaghren, supra; State v. Zwillman, supra: United _
States ex rel. Wilcox v. Johnson, supra,; United States v.
Grasso, supra., In re Hoover, supra., Hinds v. State Bar, su m .,
Thornton v. United States, supra.
Plai n tif f s '
Exhibit G l
Plai n tif f s
~~Exhibit G l~~
Respcndents' counsel went well beyond turning their heads to ,
perjury; they went so far as to cover-up Mr. Ryan's per]ured testimony with a web of false 9tatements -- unsupported by the established record and tne trutn, Such conduct, it would seem, constitutes subornation of perjury. Under Supreme Court and Fifth Circuit jurisprudence, counsel's tacit submission of Mr.
Pyan's perjured testimony into the racord, combined with Respondents' counsel's reliance on that testimony to establish its case, evidently constitutes the subornation of perjury.
The truth of the matter is that after the close of t.e nearing and after Complainant's counsel explicitlv exposed Mr.
Ryan as a perjurcr, Resp: idents' counsel engaged in a pattern of conduct with tne knowledge and intent of deceivin' the court to the effect that Mr. Ryan's test: mony was not per]ured, knowing full well that it was.
VIII, RESPONDENTS' COUNSEL OVERTLY ENCAGED IN SUBORNATION OF PERJURY WHEN FILING RESPONDENTS' POST-TRIAL REPLY 3RIEF TO THE ALJ When Mr. Ryan's perjured testimony was explained to the ALJ in a brief filed by Complainant, Respondents' counsel invented a story tnat describes the transfer of pipe support packages from the PSE " field cup" into the NPS group as " normal " In Respondents' counsel's own words: "In the normal course, NPSI packages flowed from the PSE field group to the NPSI unit,'t Respondents' counsel then asserts that caly NPSI-designed packages were retu'.'ned to the NPSI group whenever the PSE " field u- Plai n tif f s '
Exhibit G
Plal n tif f s ' '
Exhibit G <
IX. RESPONDENTS' COUNSEL UNLAWFULLY ALLOWED OR.ENCOURACED JOHN FINNERAN TO SUBMIT PERJURED TESTIMONY AND Respondents' '
COUNSEL KNOWINGLY CONTINUES TO PARADE MR. FINNERAN'S PERJURED STATEMENTS BEFORE THE DOL AS IF THEY WERC TRUE.
Little background is needed to present the perjured testimony of Mr. Finneran. On August 19, 1985 Mr. Hasan mn with Mr. F i r. n e r a n for over eight nours. Frcm the beginning of the meetirg until its end, Mr. Hasan raised grave and serious safety concernt directly to Mr. Finneran. One such safety concern was that the Et:ffness of pipe suppcrt hardware was nct included in the pipe support-stiffness when calculati19 the overall pipe i support stiffness sent to Westinghouse for tne Class 1 picing analysis-(hereinafter improper st:ffness"). The cencern ever imptcper stife. ness was one of many safety concerns Mr. hasan constantly brought to the attention of Management. Althougn Mr.
Hasan first brought his concern of imprope4 "iffness to the attention of management prior to the August _9, 1985 meeting with Mr. Finneran, the first time Mr. Hasan told Mr. Finneran of thia concern cccurred during their AuguJt 19 1985 meeting.
Indeed, Mr. Hasan testified that he not only raised the issue of stiffness during the August 19th meeting, but that he begged and pleaded with Mr. Finneran to retrieve cert in certified pipe support packages so Mr. Hasan could pinpoint exactly where and how incertect stiffness values had been calculated and incorporated into the certified design of the Comanche Peak pipe support system. Accord:ng to Mr. Hasan's
- 4s - Plai n tif f s -
Exhibit G
~
~w
ED(hlb i t G t
testimer.y at the hearing:
s Q. [By MR. KACK) And what is it that you said (to Mr. Finneran concerning improper stif f ness of Class 1 pipe suppor ts during the August 19th meeting}?
A. I explained to him at leng.n -- at tremendous l e.ig t h that what happened in that period when Rencher told me or told us not to include that staffness of the hardwares for ccmouting the sttffness of the Class 1 piping s,y s t e m .
Anc after listening to all tnis -- and then I t0ld him that, why don't you recall those particular packages to lock for ~
yourself....
Tr. 286, emphasis added, t e e A. ...I was bringing very, very sericus concerns to (Mr. Finneran] right ficm the morning to the end !Of our August 19th meeting} and I was literal.f, virtually, you know, pleading or 'ecging t him that, you have got those s packages: please bring it to here: I will show it to you, what was the problems....
Tr. 484, enphasis added.
A. --I pleaded with him that, please recall those packages so that I can show where the mistakes are being made, and he refused to recall those packages. .
Tr. 389, emphasis ed.
k n h r
Q. You discussed specific packages with Mr. '
Finneran?
c A. I was telling him to bring what I did discuss, the technical item, like, a stif f ness value of Class 1 pipino suppor t. . .
I wrote on some of the packages (that] tnose packages were being done incorrectly, and I was raising objections, at least on two of them, and at -- in one package, Mike Chamberlair just came and took away the package from me...
46 -
Pla'i n t'ar's -
Exhibit G
Plai n t.. is -
EU(hibi t U S Q. Excuse me. Did you tell Mr. Finneran to ,
bring in packages or ask him? ;
A. I requested him to bring 7ertain packages To that I can show it to him what was going on.
O. To the meeting *.
A. Tc the meeting. Rignt.
Q. ...Did he accede to your request?
A. He did not...
Tr. 484-485, emphasis added.
Besides Mr. Hasan and Mr. Finneran, Mr. Hasan's August 19tn discuss 3:n of improper stiffness occurred in the presence of Mr.
Rencher and Mr. Westbrook IMr. Westbrook was not called as a witness fcr eitner side).
Mr. Rencher censistently testified, at his depositicn anc at toe nearing, that not only did Mr. Hasan raise improper stiffness to Mr. Finnerar during the August 19th meeting, but that Mr.
Finneran actually told Mr. Hasan that Stone and Webster already knew of the improper stiffness concern and was about to be corrected and that as such Mr. Hasan need not worry about it any further. According to Mr. Rencher's t e s t i mo n y :- "Mr. Finneran and I... assured him that Stone and Webster was aware" of the concern and was currently developing nes " design criteria" to " address" i t .', Rencner Deposition Transcript, at p. 161.
Mr. Hasan's concern over 1 r. r n r r e c t stiffness values sent to Westinghcuse was tnat Westinghouse used the incorrect stiffness values to calculate *"e actuci load each pipe support had been designed ta withstand. The Westinghouse-calculated loads we;e 47 - Plai n tir rs '
Ebchibit G
. . - . . .~ . - _ . .
P!ai n tlif s ' '
Exhibit G .
then used on site to certify the design of the Class 1 piping -
system. Hearing Transcript at pp. 235, 2J8, 263-264.
The August 19th meeting-lasted for ever eight hours. At the start of the meeting Mr. Finneran stated to Mr. Hasan that he was going to take notes of the meeting and he would ask Mr. Hasan to sign the notes at the conclusion. But each time Mr. Hasan would raise a tecnnical issue, Mr. Finneran would not record it in his notes. Mr. Hasan was disturbed by this and at the end of the meeting ne refused to sign. One of the technical concerns Mr.
Hasan raised was improper stiffness. ;
After Mr. Hasan refused to sign, Mr. Finneran asked Mr.
Hasan to leave the meeting. Mr. Hasan complied and thereafter was called back into the meeting room. The only one present at thic point was Mr, Finneran. At that point in the meeting Mr.
Finneran asked Mr. Hasan to list any technical inconsistencies ..c knew of so that Stone and Webs:er could see to it tnat those matters cculd also be resolved. Mr. Hasan then pulled a list of some tecnnical concerns f.am his wallet and listed them for Mr.
Finneran. The list was not retained by Mr. Hasan, Mr. Finneran then' prepared a second memorandum allegedly listing all of the concerns Mr. Hasan raised to him on August 19th. Mr. Finneran listed exactly ten items; improper stiffness is not incladed.
The ten inconsistencies are listed below as recorded by Mr.
Finneran:
l I
l Plai n tif f s * '
Exhibit G l
, S
~.
Plai n tif f s '
l1 Exhibit G '
~~1. Conststency should be achieved regarding the assessment of th weld between a baseplate.~~
and an embedded plate (plate and shell versus 1 linear),
i
~~2. Plate and shell weld allowable should be listed in the guidelines.~~
~~3. Supports in containment should always use allowables at 300'.~~
~~4. !" architectural concrete topping should always be considered for Hilti embedments.~~
~~5. In evaluation of Richmond Inserts, consideration of both rod and insert interactions should be documented.~~
~~6. Richmond Insert Bolt should be assessed for bending as well as shear and tension.~~
~~7. The weight of a constant support should always be censidered in spring support design.~~
~~8. Each calculation sheet should be initialed.~~
~~9. Cinched U-bolt supports (class 5 and 6) inside stress problem boundaries should be assessed.~~
~~10. There should be a calculation qualifying the washer plates on tube steel supports.~~
A review of these alleged ten inconsistencies demonstrates that the words " stiffness," " Class 1," and " Westinghouse" are not mentioned anywhere in Mr. P!nneran's August 19th memo (Cx. 7 and-Rx 3].
,Nonetheless, as the record establishes, Mr. Hasan repeatedly raised the issue of incorrect stiffness values of Classs 1 pipe supports to Mr. Finneran during the August 19th meeting. Mr.
Finneran's assertion'in his Aucust 19th memo tr't Mr. Hasan "did not have any concerns which he felt vere important to safety at the plant".
O fS' Exhibit G
t'l a l n iit t s '
Exhibit G ,
Mr. Finneran expressly denied that Mr. 1!asan raised e stiffness values of tne class 1 piping system to him on August 19th, as the following testimony depicts:
-0 Do you know whether the subject matter of the stiffness values of the class 1 piping systems was among tne ettner (sic]
consistencies or concerns or any topic during that meeting (cf August 19tn).
A. Ms. I don't believe so.
Tr. 21, empnasis added.
Q. ...did the. discussion of those (10) inconsistencies take up the bulk of the seven hours of the (August 19th] meeting?
A. No. Tne ten items were -- ts I said, it was the last --Very last part of the meeting, and he related enem to me, and I wrote them down, and that was about it. There wasn't any discussion that I recall between ne and on the items.
Tr. .
L Q. Ptne. And on the second page (of CX 7) you list a series of items -- am sorry. I don t remember how ycu characterized them.
A. Incons!stencies, I believe.
l Q. Incensistencies.
l A. Uh-huh.
Q. Were tnose the only inconsistencies that Mr.
Hasan brouant_to your attention in the course of that meeting?
A. Of rkis (August 19th) meett*1g?
1 Q. Yes, sir.
A. Yes.
Tr. 31-32, emphasis added.
- so - P'lai n tif f s '
EB<hib it G L
1
Plai n tif is -
ED(hlbit G A. Mr. Finneran Perjured Himself By Not Admitting that Mr. Hasan Raised Sti',f ness Values of Class 1 Pipe Supports During the August 19th Meeting _
The testimony of three witnesses establishes the proposition that Mr. Pinneran perjured himself. In additiwn to the testimony of Complainant, two adverse and hostile witnesses, Mr. Rencher and Mr. Cnamberlain, testified under oath that stiffness was raised by Mr. Hasan to Mr. Finneran on August 19th. This testimony is set forth below.
~~1. Deposition testimony of Mr. Rencher In no uncertain terms, the deposition testimeny of Mr.~~
Rencher co,apletely cont radicts Mr . Finneran's denial that Mr.
Hasan raised stiffness of the class 1 pipe supports as a safety concern during the August 19th meeting. On no less than a dozen separate occasions Mr. Rencher testified that Mr. Hasan raised a concern over the method of calculating the stiffness values of the class 1 piping system.
Mr. Rencher had absolutely no self interest in giving testimony centrary to his boss, Mr. Finneran. Indeed, :t is the rare individual who has the strength to testify against his superior.
l The deposition testimony of Mr. Rencher is devastating:
i Q. [By Mr. Kohn) Old Mr. Hasan...on Aucust 19, 1985 (bting to your attention} the fact tnat stitfness of Class 1 cipe support systems did not consider the stiffness of the hardware.
! A. (By Mr. Rencher] I believe he mentioned it in that meeting, yes.
1 l - s^i -
l Plai n tif f s -
Exhibit G
Plai n tif f s '
Exhibit G Q. Do you know if anyone followed up on that '
concern?
A. Yes.
Q. Wno followed up on it?
A. ! believe it would be John Finneran.
Q. Did vou have any discussions with Mr.
Finneran about now to prcceed with Mr.
Hasan's concern lover tnc fact that incorrect stiffness values had been-sent to Westinghousel?
A. Yes.
Q. And what is the sum and substance of those
' discussions?
A. When Mr. Finneran and I talked after that time about Stone & Weoster developing criteria, we made sure tnat Mr. Finneran made aware to them that this is an item that needed to be considered in the development of their design criteria.
Rencher Deposition Tr. at 95-96, (emphasis added).
Mr. Rencher's testimony was clear: nnt only did Mr. Finneran and Mr. Hasan discuss the fact tnat incorrect stiffness values of Class 1 pipe support system had been sent to Westinghouse in tne presence of Mr. Rencher, but that Mr. Finneran and Mr. Rencher continued discussing Mr. Hasan's concern aftei the meeting ended!
On June 2, 1987, the depostion of Mr. Rcncher recbmmenced.l.1/
~~11. In violation of subpoena, Respondents' cousnel ordered Mr.~~
Rencher to walk out of his May 29, 1987 deposition at 3:15 pm, evidently shortly after Respondents first received the letter from the NRC to Texas Utilities, dated May 28, 1987 (CX 14).
Rencher Deposition at 144-145. Respondents' cousnel retutaed on June 2, 1987 only upon order of the ALJ. Respondents' conduct went unsantioned.
Plai n tliis '
ED(hlbit G
Exhibit G At that time Mr. Rencher further testified: .
Q. {BY MR. KOHN) Mr. Rencher, do you know about that Westinghouse letter concerning the stiffness of Class 1 pipe supports?
MR. WOLKOFF: Objection.
A. Calculated stiffnesses of Class 1 pipe supports were sent to Westinghouse.
Q. [BY MR. KOHN] All right. And what year were they sent?
A. 1982, 1983, 1994.
Q. And were you aware that that list did not consider the stiffness of the hardware for many of the Class 1 pipe supports contained in that list /
MR. WCLFCFF: Objection. You're testifying. Mr. Kohn.
A. No (Mr. Rencher's testi4nony diverges here from Mr. Hasan, who testified that he first raised this with Mr. Rencher and others in 1982: Mr. Chamberlain nonetheless testified at his deposition that management knew of this concern in 1985. See, Char..berlain Depo, at 96-97].
Q. (BY MP., KOHN) Did Mr. Hasan bring this to your attention on August 19th, 1985?
A. I believe he mentioned it (incorrect stiffness values) in the meeting that !
participated in with John Finntran and~him.
Q. Was anything done -- do you know if anything was done to check Mr. Husan's concerns regarding not cal,ulating stiffness of hardware sent to bestinchcuse?
s e a b A. In sum and substi.nce, Mr. Finneran and I discussed the concerns Mr. Hasan raised in that meeting [cf August 19th) and assured him that Stone & Webster was aware of these concerns.so that the Stone & Nebster design criteria which was being developed would address his concerns.
Rencher Depo. Tr. at 164-161, emphasis added.
E li. i,j f f g
~~EDehlbi_t.tG~~
Plal n tif f s ' ,
Exhibit G .
Later during his deposition, Mr. Rencher once again +
confirmed that Mr. Hasan raised a concern over incorrect stiffness values to Mr. Finneran during their August 19tn meeting:
Q. Do you recall Mr. Hasan raising technical disagreements while you were present at the August 19, 1985 meeting?
A. I remember one.
Q. Which one was that?
.im :..: J. A*..,It concerned stiffnesses of Class 1 pipe -' ,
supports. - - --
Q. Did Mr. Hasan complain that you refused to or did not write any memoranda concerning Mr.
Hasan's problems that he had in the way the stiffness was being calculated?
A. Befond the fact that he mentioned it, I don't remember much else of what was said about it, specifically.
Q. The stiffness of Class 1 pipe supports that you remember Mr. Hasan raising during the August 19 meeting, when did Mr. Hasan first .
bring that to your attention?
A. I don't recall. I think it was at that (August 19th] meeting.
Rencher Depo. Tr. at 237-238, emphasis added.
2. Hearing testimony of Mr. Rencher On direct exam, Mr. Rencher's testimony was equally unequivocal: On August 19, 1985, in the presence of Mr. Rencher, Mr. Hasan raised told Mr. Finneran about his concern over the stiffness values sent to Westinghouse. Equally critical, was Plai n tif f s
~~1 Exhibit G~~
Plai n tif f s '
Exhibit G-1 Mr. Rencher's testimony that not only was the concern raised, but a that Mr. Finneran understood the significance of the concern as well.
Q. (BY MR. KACK] In that [ August 19th] meeting in your presence, did Mr. Hasan raise a concern over the stiffness of Class 1 pipe supports?
A. (BY MR. RENCHER) Yes, he did.
Q. In the presence of Mr. Finneran?
A. Yes.
Q. Did the two of them (Messrs. Hasan and
_ :h, j:. Finne ran ) .h. o.ld . a., di scu ss
~ .,..,-.:
that?
i.on 7 aboutw - n a :,;u, ,m .w...
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 O. And did he express that concern to Mr.
Finneran?
a & .
A. Yes, he did.
', Q. And Mr. Finneran understood the concern?
i A. Yes, he did.
Tr. 117-118.
i.
There is no room for doubt that Mr. Finneran's failure to recall certain packages Mr. Hasan brought to his attention in l
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Plai n tif f s o ExhiSit G order to verify what he already knew (Mr. Hasan had first identified the problem to managemer.t back in 1982) that the calculation of the stiffness values for the entite Class 1 piping system contained gross engineering errwrs. Not only did Mr.
Finneran refuse to recall the packages, he knowingly prepared memoranda falsely stating that Mr. Hasan had absolutely no safet;.
l ecncerns. These memoranda (RX ib, 31; CX 7) would become the centerpiece of 9esponderts' defense to Mr. Hasan's case. Mr. I Rencher confirms the obvious: Mr. Hasan's concern over Class 1 i stiffness values sent to Westinghouse is not mentioned in Mr.
F;nneran's memorandum:
Q. (BY MR. MACK) This is Ccmplainant's Exhibit 7, wnich has been characteri:ed as Mr.
Finneran's list of inconsistencies arising out of the August 19 meeting. Is the problem you mentioned that came up at that meeting about the ca.'culations for stiffness of certain Class 1 U-belts on the list?
A. Let me check. (Perusing document.)
O. Le. me get my phrase right -- stiffnesa values et the hardware for NPS Class 1 pipe support or stiffness of Class 1 pipe support.
Is tPat on the list?
A. I don't see it nere. No.
Tr. 144.
Respondents' examination of Mr. Rencher plainly demonstrates the total lack of concern for the truth. Respondents' counsel asked the witness excessively leading questions with false premises in an attempt to'get Mr. Rencher to cor.cradict both his nearing and deposition testimony. According to the transcript,
- ss - Plaintif f s' Exhibit G
Plai n tif f s '
Exhibit G Mr. Wolkoff asked Mr. Rencher:
O. Do you: remember just reading about it ,
-(stiffness of Class 1 pipe supports) in Mr.
rinneran's notes?
A !.have read about it in his notes. Yes.
Tr. 145.
1 The ant -and question are perpleying. What notes did Mr.
Wolkoff refer to? Unequivocally, no dscument of any kind was ever identified in discovery-or during tne hearing. Rather, according to to the answer to Complainant's Interrogatory 11, no such documents exist. In effect, either the August 19th notes tendered by Mr. Finneran and counsel are forgeries or Respondents' counsel asked leading questions based on made up testimony..
Mr, Wolkof f's bi:ar re examination of Mr . Rencher continues ,
with the following:
Q. Stiffness of Class 1 pipe supports, was that an issue tnat had been (known to (sic)] the NRC, do you know?
A. No, it had not.
O ', Was it an-issue, however, that had ceen discussed amongst management?
A. Yes.
, Q. So management was-already aware of it before Mr. Hasan raised it.
A. ,,.Yes.
Tr, 145.
The questions by Mr. Wolkof f and answers by Mr. Rencher are i
nothing less than shocking. Respondents' own counsel has l
- 57 Pisu. ntifts' h Exhibit G j '.
s Plai n tifIs *
-Exhioit G i
elicited from its own witness that~ Mr. Hasan's concern of stiffness values of class 1 pipe supports sent to Westinghouse had not been known t' the NRC when Mr. Hasan rai. sed it to Mr. 4 Finneran on August 19, 1985. Mr. Rencher's further admission tnat management knew of tne ccndition prior to the August 19th meeting corroborates-Mr.'Hasan's testimony that ne had continually blow:. the wnistle.to_ management about this concern prior to the August 19th meeting. There is no roem for doubt that Mr. Finneran in--fact failed to recall certain packagas that Mr. Hasan pleaded he recall to allow him to identify to Mr ,
Finneran-how the errors in calculating the stiffness of the class 1-pipe supports occured. .
Not'only did Mr. Finneran refuse to' recall the packages, he knowingly prepared and submitted into evidence memoranda he knew ..
to contain absolute false statements to the effect that Mr. Hasan had no safety concerns. These memoranda (BX 45, RX 31) would also become the centerpiece of Respondents' attempt to deceive the NRC (via answers to interrogatory questions posed by the intervenor CASE) as well as the DOL through tne submission cf false testimony by Mr. Finneran.
~~3. Decosition testimony of Mr. Chamberlain Mr. Chamberlain's deposition-testimony further; establishes that Mr. Hasan raised stiffness of class 1 pipe supports to Mr.~~
~
Finneran on August 19th.
1
- 5e - Plai n tif f s '
EU<hib i t G
l Plai n tif f s '
Exhibit G O. [BY MR. KOHN) Well, on August 19,. . .
stiffness was raised in Mr. Hasan's last cor.versation with him; is that correct?
A. I believe it was one of the items that he discussed witn Mr. Finneran :n tne exit interview.
C. !EY MR. KOHN) Okay, en August 19, 1995, you discussed and Mr. Finneran discussed incorrect stiffness values on Class 1 piping stress analys s with Mr. Hasan.
A. ...I discussed it with Mr. Finneran after he talked with Mr. Hasan in the exit interview
[when] he asked me accut scme of the items that Hasan hud brought up...
Chamberlain Deposition. Tr. at 226, 244-245, temphasis added).
5. Respcndents ' overed-up Mr. Hasan's Ccncern Abcut Inccrrect Stiffness Vaaues Having Eeen Sent to Westinghouse Since 1982, and Respondents' Counsel Suborned Mr. Pinneran's Perjurous Testimony By A11cwing Him tc Deny Under Cath that Mr. Hasan Had Ever Raised Incorrect St ffness Values to Mr. Finneran On Aucust 19, 1985 Mr. Finneran (and others) engaged in ar active cover-up cf Mr. Hasan's concern over the fact that incorrect stiffness values had been ant to Westinghouse. Tr.17-118, 148-149, 225, 236, 263-264. Respondents have been covering up this concern cf Mr.
Hasan's since 1982, when Mr. Hasan raised the concern witn Mr-Rencher, and thereafter when he raised the concern to Messrs.
Hem'rajani and Chamberlain. Tr. 264-266. To be sure, wnen SWEC began its requalification effort of the Class 1 piping system, they also used the Westinghouse analysis.
Plai ntif f s-Ex.ni.b.i t G
Plai n tif f s
Exhibit G If the truth was known about the incorrect stiffness values at the time SWEC began its requalification, it would have been apparent to all concerned, including the NRC and the ASLB, that the schedule SWEC and Texas Utilities submitted to its snareholders, the ASLB and the NRC were in fact fraudulent and
~~mpossible. Although Respondents' concede in their reply brief~~
nat Stone & Webster's " goals were nign: to develop within seven m:ntns a single, unifcrm set of pipe suppcrt criteria...to requalify the pipe support work...and te conclude all remaining pipe support work," Respondents' B:ief in Support of the RD&O, at p.12, what tney cmmit is that tneir gcals were impcssible and that Mr. Hasan knew it. !s t possible tc ccnceive Of any greater mctive to discriminate against Mr. Pasan than his (nowlege over tne fact that SWEC's initial requalification schedule was fraudulent?
Indeed, Respondents o.d everything conceivable to disuade Mr. Hasan from raising his concerns to tne NRC wnile he was employed en site. To stop him from going after ne left, Mr. .
rinneran falsely asurred Mr. Hasan tnat all cf his concerns, and in pa r t ic 21ar his concern over incorrect st:ffness values, were alte Ady f actored into SWEC requalification plan. Mr- Finneran a rephatedly assured Mr. Hasan that there was no reason to show h:m where the errors had been made.
Respondents felt secure that their secret wou;d remain undetected once Mr. Hasan was removed f rom the site, particularly after Mr. Hasan was asked to write a memo to NPS about the status of his concerns at Comanche Peak. RX 46. Indeed, as RX 46
- so - Plai n tif f s '
EU(hib i t G
Plai n tif f s '
cxnib.t i G states, Mr. Hasan explained to Respondents that "it must be pointed cut that any technical items, discussed below, are Now MEANINGLESS as (Texas Utilities] senior representative John rinneran told me on August 19, 1985 " Stone & Webster Engineering
~~crporation shall do everything frcm the begining!" RX 46 at p.~~
. temRnasis and capitali:ation in original).
Unfertunately for Respondents, Mr. Hasan chose net to ce'ieve Mr. Finneran, and on January 10th and 30th, 1996, after contacting them back in August, 1985 (CX 15), Mr. Hasan was finally able to present to the NRC his concern ever incorrect st;ffness values (concern No. 26), as well as the 64 other concerns listed in the NRC 's May 28, 1987 letter to Texas Utilities. CX 14..
The significance of Mr. Hasan's disclosure over inccrrect stiffness values sent to Westinghouse cannot be overlocked.
Under 10 CFR 50.55(e) Texas Utilities had a legal duty to not:fy tne NRC of the violation the moment they learned cf it. The date tne v;olation was first detected and reported to the NRC is cocumented pursuant to established NRC regulation. The date that Respondents first notified the NRC cf the inccrrect stiffness values undeniably occured on May 28, 1986 via letter from Texas Utilities executive vice president, Mr. Counsil.
This letter states:ll/
~~12. This letter was first brought to the ALJ's attention as an exhibit to Complainant's Second Motion for Default Judgment / Disqualification, filed on June 16, 1987.~~
~~s Pla't n t'i. f s~~
~~Exhibit G P%Mx e Q.. y~~
Plai n tif f s '
. txhibit G On Apr 1 29, 1986, we verbally notified your Mr.
T.F. Westerman of a deticiency involving the use of incorrect pipe support stiffness values in the '
Unit 1 Class 1 pipe stress analysis. This is an interim report of a potentially reportable item under the previsions of 10CFR50.55(e). . .
Westinghouse is reanalyt:ng these stress problems and issuing revised pipe support loads to SWEC for r e *; . re . . SWEC nas not vet started to assess the existina_ s u r_ o_ c r_t s f o r adecuam. due to load
~~ncreases. . .~~
On Octcber 17, 1986, Texas fit:1; ties isst its final assessment of Mr. Hasan's concern ever tne use of incorrect stiffness values _ent to Westinghouse. It states:13/ ,
On April 29, 1986, we verba'.ly notified your Mr.
T.F. Westerman of a deficienc;. inecleing the use of ncorrect pipe support st:ffness values it the Unit 1 Class 1 pipe strecs analyses. . .We are reporting this issue und2r the provisions of 10 CFR 50.55(e) and the equired information follows.
DESCRIPTION As identified during the CPSES pipe support recualification effort, incorrect stiffness values were used in the Unit 1 Class ' piping stress analyses.
Review of the ongoing requalif cation program nas ~
indicated that approximately 30i of the existing cice succorts are overstressed or recu re
~
4.cdification primarily due to leac increases... As a result of these conditions, all stress pr00lems are currently scheduled for reanalysis...
SAFET'r IMPLICATIONS In the event the deficiency had remained undetectec, tne integrity of the Class 1 piping anc supports could not be assurec during normal operating or accicent conditions.
6
~~13. See Footnote 12, supra.~~
- 67' -
-Plai n tif f s -
Exhibit G
- Phai n tif f s '
Exhibit G This letter confirms that Mr. Counsil of Texas Utilites allegedly did not knew of the incorrect stiffness values until after SWEC's requalification effort commenced. The utilties' nighest ranking efficer for nuclear matters unequivccally states that the "nermal" operation of the nuclear plant was in jecpardy nad Mr. Hasan's c:ncern remained " undetected."
Mr. Finneran's failure to. disclose Mr. Hasan's concern tn nis August 19tn memoranda and in testimony was not because ne did not understand Mr. Hasan's concern or that he did not perceive its significance -- indeed Mr. Finneran has a masters degree in engineering and is tne Utility's chief pipe support engineer on site. Mr. Finneran's fa'.se testimony resulted simply because the Utility wanted to cover-up Mr. Hasan's safety concerns. Mr.
Finneran sent Mr. Hasan packing, telling him ne knew about the concern, that SWEC knew about it and that ne should not worry becasue his concern was already moct. He then prepared memoranda stating that Mr. Hasan had not raised a single safety concern and that he gave Mr, Hasan a copy of tne memoranda {wnich he did not). This was a premeditated act en the part cf Texas Utilities tc cover-up safety concerns at the site. !ndeed, Mr. Hasan's concern over the use of incorrect stiffness values was not reported to the NEC until April 29, 1986, three months after Mr.
Hasan-provided the NRC with explicit testimony on this issue.
See CX 14, Concern No. 26.
Beyond a shadow of a doubt, on August 19, 1985, Mr. Hasan
" begged" and " pleaded" with Mr. Finneran to correct the stiffness P hai n t if f s -
~~Exhibit G~~
+ _, .
Plai n tif f s '
Exhibit G values sent to Westinghouse. In-this regard, Mr. Hasan pleaded with Mr. Finneran to retrieve certain pipe support packages so that Mr. Hasan could personally' point out to Mr. Finneran during the August 19th meeting how the incorrect stiffness values had been sent to Westinghouse. At that point in the meeting, Mr.
Finneran knowingly.and purposefully misled Mr, Hasan with false statements when he told Mr. Hasan that the incorrect stiffness values had-already been identified to SWEC and as such his disclosure was entirely moot. The obvious intent of Mr.
Finneran's-statements was to derail Mr. Hasan frcm further pursuing thit-concern with the NRC or CASE, Clearly, tne_ creatien of the August 19th memoranda constitute premeditated acts en the part of Texas Ut : ties management in an ongoing cover-up of Mr. Hasan's concern over t ne.
use of false stiffness values during the requalification effort.
Indeed, once Mr. Hasan was banished frcm the site, Texas Utilities was once again free to use the false stiffness values during SWEC's effort to requalify the Class 1 pipe-support design of the Comanche Peak plant.
Respondents' counsel knowingly attempted to suborn perjury _
when Mr-_Wolkoff posed the following leading que icns to Mr.
Hencher:
0 ...I take it since you don t recollect being there when he raised-it [ stiffness of Class 1 pipe supports), you don't know wnat Mr. Hasan was talking about when rue . raised the point.
A. That is correct.
Tr.
Plai n tif f s '
Exhibit G
i Plai n tif f s
~~EU<hib it G This question came after Mr. Rencher had testified that not only did Mr. Hasan raise the issue to Mr. Finneran, but that Mr.~~
Finneran understood it and that tney had discussed it even after Mr. Hasan left tne meeting. Tr. 117-118.
On re-direct, wnen Complainant's ccunsel attempted to establish that Mr. Rencher's deposition testimony was consistent witn his earlier testimony, namely that Mr. 'i a s a n raised tne issue of stiffness during the August 19:n meet:ng, Mr. Welreff kncwingly attempted to mislead the court when he stated:
MR. WOLKOFF: Objection, Your Honor. (Mr.
Rencher's testimony on cross) is nct inconsistent with his testimony (at his deposition).
JUDPC LINDEMAN: The record will speak for ::self re- rding consistency.
+, .t ,a. .
~~ndeed, the record establishes that the only time Mr.~~
Rencher strayed frcm the truth was when his cwn counsel, Mr, Wolkoff, asked bizarre questions of the w:tness that nave no basis in fact. The record establishes that Mr. Wolkoff attempted to suborn perjured statements from Mr. Rencher when he tock the witness stand. Given the pressure Mr. Rencher had to overcome to testify against his superior and to testify truthfully wnen his i
employer's attorneys attempted to get Mr. Renener to change his story before he entered the witness box, it is nothing less than astounding.
1 I
l i
1 P(ai O tl f S' Exhibit G
Plai n tif f s '
exhibit G Respondents assert that the ALJ " commented on . . . Mr.
Hasan's total lack of credibility during his day-long testimony.
6." See, Brief of Respondents Recommended Decision and Order at at 29. While tne ALJ did make limited credibility findings in the RD&O none appeared on page 6, and the ALJ never used the term
" total '. a c k of credibility" to describe Mr. Hasan's testimony.
Respondents' misenaracterization of the RD&O s more than ealcus advocacy -- :: :s downright malicious. Complainant regards Respondents' misrepresentatien as sanctionable conduct-under FRCP Rule 11.
Tne suostance of Respondents' request for attorneys fees anc costs is ;tself frivolous as Respendents' ccunsel cculd include nct_esen a single legal authority to support his request.
Complainant will net waste tne Secretary of Labor's time addressing wnat amounts to Respondents' desire to be ccmpensated for responding to Complainant's discovery requests.
. CONCLUSION It is disturbing that Respondents' counsel would engage in sub'ornation of perjury and othet sanctionable behavior in order to prevail before Administrative Law Judge Lindeman. The fact that some of the highest ranking officials at the Comanche Peak facility felt it necessary to perjure themselves rather than admit to the concerns Mr. Hasan had brought to their attention Plai n tif f s' EU<hibi t G
Plai n tif f s '
EU(hibit G demonstatates fear on the part of Respondents, let alone mere-knowlege,.that Mr. Hasan had raised safety concerns'of immense proportion. Indeed, Mr. Hasan's disclosures stood in the way of certifying the pipe support system of the Comanche Peak facility.
Mr. Hasan was blacklisted frcm the site in. order to assure the implementation of , patently false and impcssible requalification scnedule of the Comanche Peak pipe support system. Mr. Hasan was more than an internal thistleblower, he was a engineer whose career was sericusly damaged simply because he refused to sign-eff on improper design documents.
For all(tTe j reasons set forth above, the Secretary of Labor must rule in favor of Mr. Hasan.
Respectfully Submitted,
.ft/L/-N /M
-~
MICHAEL D. KOHN. ESO.
STEPHEN M. KOHN, ESO.
Government Accountability Project
.25 E Street, N.W. -- Suite 700 Washington, D.C. 20001 (202) 347-0460 Attorneys for Complainant On Brief:
David K. Colapinto April 13, 1988
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! hereby certify tnat a ecpy cf the af eregclag reply trief was hand-delive red en . t.pr il_18, 1983 tc: 1 Secretary Of Labor ,
Office of Administrative Appeals U.S. Department of' Labor 200 Censtitut:cn-Ave., N W.
Washington, D.C. 20210 and I certify that a copv. was sent en April 18, 1988 by first.
class mail, postage prepaid, to:
Mr, lia r vey J . Wcl< o f f , Esq.- ,
Ms. Kat: Ina.Weinig, Esq.
Repes and Gray 225 Franklin Etreet Besten, MA 02110 n 1 C
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.o Exhibit G UNITED STATES OF AMERICA SETORE THE SECRETARY OF LABOR
)
S.M.A. HASAN, )
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Ccmola:nant, )
)
) Nr 56-CFA-2' s
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STCNE AND WEDSTER ENGINEER!NO CORP . , )
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Respendents. ,
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CCM.PLAINAST'S RESPONSE TO Q r. C
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er + + \' e, Remove the cDViCLS f alSehoods f icr.t this prCCeed'T.g and a
>ery straigntfc: ward case cf retaliaticn by Respendents aga:nst Mr. Hasan emerges.d Mr, Hasan :s and was an exceptional structural eng:neer, who cons:aatly detected ccmplex and simple design errors during tne certif; cat'cr peccess of the Comanche Peak fac:11:y tnat e:tner
~~1. The f alse statements made in the briefs filed by Respondents~~
~~_ctunsel were so gross and outrageous that Mr.~~
William Couns:1, Texas Utilities Executive Vice President, was forced to send a sincere appology to the 'ntervenor, Citizens Associated for Safe Energy (CASE -- who is a par ty in the ongoing licensing hearings before the Atomic Safety Licensing Board) for the false and malicious made-up story that CASE had em.olov.ed l
spies on site, i
i i
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^ 1- Plai n tif f s' i
Exhibit G
1 i
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Plai n tif f s' ED(hlbit G no other engineers on site detected or bother- to report to
-management.
Sixty-five of the concerns Mr. Hasan raised to manacement during his tenure at Comanche Peak are set forth .n a May 28, 1987 letter from the NRC to Texas Utilities. This list was
~~ntrcduced at trial as C:mplainant's Exnibit 14.1/ :n a J.anuary 6, 19e8 correspondence, the NRC recently informed Mr.~~
Hasan that 9:s 65 allegations set forth in the May 2Stn '.etter to Texas Ltilities had been " substantiated."2/
Seyond merely raisine safety concerns to management, Mr.
Hasan's concerns were sound, valid and true. The NRC so fcund.
One of the numercus and more notorious falsehoods l'
Respondents' counsel raises in evey post-hearing filing is the asserticn that-Mr. Hasan never raised a single safety cencern to a single manager thrcughout t.is tenure at tne Comanche Peak site.
The most recent episode in which Respondents' counsel claims that " Texas Utilitites was not aware of Mr. Hasan's having
' raised any safety concerns, " is contained in Rescondents' Brief in Support of the RD&O, at p. 4. Similarly, on page 5 of tnis pleading Respondents likewise state that "Mr, Hasan in fact did no t. raise any safety concerns wnile at Comanche Peak."
2. Hereinafter Complainant's exhibits introduced at the hearing are refered to as "CX" and Respondents' Exhibits at "RX." Cites to the Hearing transcript are indicated by a "Tr." followed by th e page number .
~~3. Complainant has filed together with this pleading a Motion to Augument the Aecord with a copy of the January 6, 1988 NRC correspondence to Mr. Hasan.~~
Plal n tif f s-EB(hibit G
a Pb.l atif fiid
. v q r.,
Late: still in this pleading they again claim tnat:
none of [Mr. Hasan's) superiors at Ccmanche Peak nad any infctmation or belief that Mr. Hasan had any safety ccncerns about Ccmanche Peak. . .
~~g. at p. 13, En. 6.~~
A more f alse asser tion is hard to phathem. Respondents are
., e l . aware that Mr. Hasan continually blew the wnistle accut dc: ens cf safety concerns. How can Respondents' counsel make sucr a statement in gced fa n wnen its own wi nesses admitted at tneir cepos ::cns that Mr. Hasar had raised dozens cf safety ccncerns to them while employed en site. $/
4 Compla:nant cites to the Cepositions of Messrs. Chamberlain Renener, Finneran and Ryan in this and in its earlier filed pleading eventhough these despositions were not formally
ntroduced into the record during the hearing. Complainant has oeen forced to rely en these depositions soley to refute obvious false statements made by Respondents' counsel, or to demonstrate ceyond a reasonable doubt that Respondents' counsel relied on -
perjurous testimony. Complainant had no idea :nat Respondents would regularly resort to making false statements or that tney would resort to using perjured testimony even after the perjurous nature of the testimony was identified to Respondents and to the ALJ. Tnus, had it not been for the gross and o:trageous conduct cf Respondents' counsel, Complainant would not new need to rely on the desposition testimony of Messrs. Rencher and Chamberlain.
(
Unfortunately, it was not possible to predict that Respondents' counsel would go to the extremes they have in order to prevail
~
hefore the ALJ. Given the unforseen circumstance that Respondents' counsel would regularly present falsehoods to this tribunal, Complainant formally submits a Motion to Augment tne record with the Transcripts of Messrs. Rencher, Chamberlain Finneran and Ryan, filed under separate cover.
Ma.i n tif f s '
Exhibit G
4 Plai n tif f s '
. Shibit G Mr. Rencher testified that of the 65 concerns enumerated in tne May 28th letter from the NRC to Texas Utilities (CX 14), he remembered Mr. Hasan bringing to his atention concerns Nos. 8, 11, 13, la, 23, 24, 36, 57, 61, and 65. Rencher Deosotion Tr.,
at pp. 2;; to 252. Similarly, Mr. Chambetlain testittad at his depos;t;cr tnat Mr. Hasan had raised with him concer ns nc,s. 1, 3.
5, 7, 5, 9, 11, '2, 13, 15, 16, 19, 21, 23, 24, 26, 28, 30, 32, 34, 35, 36, 37, 39, 41, 47, 43, 68 and 65. Chamberlain Deo: sit:cn Tr. at pp.60-164. Indeed. Respondents go as far as to assert that the " evidence vas totally without contradiction" that Mr. Hasar lever raised a single safety concern to any of h;s zaters:scrs. Resocrdents' Brief in Sunocrt of the RD&O, at p.
3, in. 6. Tne cov

cuc truth is that Mr. Hasan continually raised to nis supervisors do:: ens of saf ety concern:,
Far f rom being "with0ut contradiction," the record estaolishes exactly the cpposite. The hearing transcript demonstrates tnat Mr. Hasan raised: incorrect calculations of tae Stiffness values cf the Clau 1 pipe support system (Tr, pp.
117-1.S. 148-149, 235, 237, 285-289), Richmond Inserts (Tr.-239-241, 245, 247-248), incorrect calculations of puncning shear (Tr.
75, 231-233, 264-266); I r.c o n s i s t e n t criteria used to calculate tne same pipe suppor ts (Tr. 272): Minimium weld violations (Tr.
168, 190, 542): improper STRUDL input (Tr. 260, 273, 378, 443-444): use of improper earthquake loads when calculating p;pe supports (Tr. 261): incorrect minimium frequency criteria / base plate thickness (Tr. 281): incorrect allowable loads of Hilti bolts (Tr. 243), just to name a few.
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i Plai n tif f s ' !
.- Exhibit G It is noth:ng less than sanctionable conduct for Respondents' counsel to state that the evidence was "without contradiction" that Mr. Hasan no er raised a single safety concern to -is supervisors when in fact the record was Just tne sppos:te.
The record is witnout contradiction that Mr. Hasan's superv sicr, Mr. Renener, testified quite clea rly and convicingl- ,
that Mr. Hasan repeatedly blew the wnistle to him abcut tne ,
stiffness values of the Class 1 piping system, ar.d when asked if
~~nat concern was " safety-related," Mr. Rencher replied "I wculd say so. 't e s . " Tr. 113, ccmpla: nan:'s ccunsel is lett with the impressicn (inceed~~
~~ne reality) that Fespondents' counsel is incapable of sucmitting a post-hearing brief that dces not contain numerous gross and outrageous f alsencods-.~~
The undeniacle truth is that Mr. Hasan found himself sat:- nded b,. .nccmpetence, nanagers and line engineers alike.
One part:cular disc 1csure Mr. Hasan made was that his line supervisor, Mr. Hemragani, would place a stack of p;pe support packages before him and sign off on the designs without checking them. Mr. Hasan sat next t o t . Hemrajani and observed this i
happ'ening'on a cally basis. He could not believe that managers-i l
themselves would sign of f on documents without doing the required c checking of the documents. Production over safety was business as-usual in the Comanche Peak pipe support groups.
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Plai n tif f s '
Exhibit G-Day l'n and day cut, Mr. Hasan sat and watched an engineering nightmare.- He-would find egregjcus errors. When he brought his concerns to management, he was told to ignore them.
Beycnd tne grass incompetence of management, Mr. Hasan became alarmed over the fact that the pipe support design was be:ng pert:rmed by d:,fferent crgani:ations using differr-* N3ign criteria tc ccnstruct ne pipe support system of the Cemancie Peak facil:ry Mr. Hasan soon realized that pipe supports designed by one organization were ceing transferred into his organication for cert:ficatten with criteria etner inan what it had been des:gned
.:th, Th:s meant tnat the same p:pe suppcrt was being designed and cert f.ed using at least two different sets of criteria.
Mr. Hasan next real :ed that after he rejected a pipe support, in part:cu'ar . . shen the pipe support's Richmond Insert design failed, tne rejected pipe support was taken cut of his group and transferred into another grcup where it was certified often witncut modification. Mr. Hasan could not phathom how the same pipe support could be considered defectively designed by cne
~~group, only later to be certified by another group witncut undergoing any type of modification.~~
l l
l P' tai n tif f s '
Exhibit G
. - _ _ _ _ __ - _ _ __ _ . ~ __ _ .
Plai n tif f s '
Exhibit G ,
-After observing the method used by management to certify '
pipe supports, Mr. Hasan came to the correct conclusion that the-safety of-tne ccmanene Peak facility was in jeopardy unless management implemented a unifore set of cr:teria, at least with respect to tne Rienmond Insert design.
As t:me passed, Mr. Hasan, conscience-struck cver design and engineering problems in the pipe suppcrt design of the Comanche Peak facility, cecame mere and more determined to resolve the engineering nigntmare ne nad uncovered. He engaged in a steady
-stream of internal whistleolowing to Messrs. Finneran, Chamberlain, Rencher, Hemra;ani, Sherrer, Hil'_ and others,
ndeed, Mr. Ravada, wnen asked if ne ever " told Mr, Sherrer that Mr. Hasan mignt go to tb EC," stated "...Yes," Tr. 71, To stop Mr. Hasan from escalating his whistleblowing from internal disclosures to contact with the NRC, management fostered (
an atmosphere of intimidaticn and retaliation. Line supervi p a -
uculd walk up to Mr. Hasan and to his f ace 'ne:r.,e him of' being a
,n, f wnistleolower and spy fc:[ CASE. f hese same managers (Hemra]ani, Rencher, Hill) encouraged line engineers to harass Mr, Hasan.
This harassment often surfaced as religious discrimination (an
-easily provoked response as Mr Hasan was a religious minority of cne Muslim in a. group supervised and dominated by members of the Hindu faitn) -- to the point where open religious discrimination (name-calling, etc.) was' practiced in the NPS group, by his supervisor, Mr. Hemrajani,'and line engineers alike.
Plai ntif f s' 7_ Exhibit G
PUal n tif f s '
Exhibit G-When Mr. Hasan went to management for nelp, he was told that no initimidation or_ discrimination existed on site. The problem of' retaliation and harassment-- like the engineering design flaws he also brcught to management's attention -- were all just figments of Mr. Hasan's imaginat:cn.
The more management refused to correct the prcblems Mr.
Hasan encountered, tne mere open and flagrant the harassment and discrimination cecame. Por e x a:r p l e , one line eng:neer, without provccation, behind Mr. Hasan's back pulled cut a knife and dropped it behind his back onto the chair Mr. Hasan sat in, hard at work -- the often-mentioned but unexplained " knife incident,"
See, . Respondents' Br:ef to SCL, at p. 8.
The fact that a line engineer was allowed te pul; cut a knife and drop it behind the bacs of Mr. Hasan in plain view of other engineers and make sick and demented religious slurs witn the knowledge and complicity cf management does not speak to Mr.
Hasan's inability to get along with other line engineers. :t merely defines the level of harassment and intimidation encouraged by management against-Mr. Hasan in a vain attempt to control-his whistlebicwing. Labor case law is replete with examples of employers utili:ing employees tc harrass and
-distriminate against another employce for having engaged inprotected activity. There is no difference in the case.of Mr.
Hasan.
In spite of the increased intimidaticn and harassment, Mr.
Hasan rejected msre pipe supports than other engineers in every l
l _ group'to which he was ever assigned.
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, Exhibit C .
II. MANAGEMENT' S KNOWLEDGE OF MR. HASAN'S WH!STLEBLOWING ACTIVITIES s Messrs. Ryan and Finneran were shown to have actual .
1 I
knowledge of Mr. Hasan's wnistleblowing activity. But for Mr.
Ryan's reccmmendation and Mr. Finneran's decision to remove Mr.
Hasan frcm the Ccmanche Peak s:te, Mr. Hasan would have been offered a job by SWEC. This fact i s not contested. Wnat i s 1
centested i s whether Messrs. Finneran or Ryan had any knowledge cf any of Mr. Hasan's safety cencerns. Respondents contend that they did not have knowledge of either Mr. Hasan's repeated threats to go to the NRC or even the fact that he had in fact ever raised a single safety concern while amplcyed on site.
Resoondents' Brief in Succort 30 :ne AD&O, at p. 4, 13.
Responcents' assertien is both ludiericus and absciutely false.
As will be detailed late: in this brief (See Sections VI:
and X, infra.), both Mr. Ryan and Mr. Finneran committed perjury in order to conceal knowledge cf Mr. Hasan's whistleblowing activity.
Essentially, Mr. Ryan absciutely purjured himself wnen he-denied tnat PSE pipe supports were being sent fcr certifiction to the NPS group. This transfer is-believed to be nignly illegal --
it.no doubt resulted in the improper certification of an unsafe pipe support design. The significance of Mr. Ryan's knowledge of the fact . hat Mr. Hasan was rejecting PSE pipe supports while in NPS is ~ that it proves first hand knowlege on the part of Mr.'Ryan-
_9_ Plai n tif f s '
EExhibit G m.
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' Plai n tif f s
~~EU<hib i t G t~~
regarding the reasons Mr. Hasan rejected the supports. Attached ,
to the pipe supports Mr. Hasan rejected pre cove. memos stating the reascns the supports nad been re;ected. These memos were
~~ssued directly to Mr. Ryan and prepared directly at nis request.~~
Tnus, by reviewing tnese memes, Mr. Ryan had ccmplete snowledege Of all cf tne reasons Mr. Hasan repected PSE p:pe cupperts while he was stationed in tne NFS group (1982 thrcugn 1984). As is explained in detail infra, not only did Mr. Ryan knew all of tne _
concerns Mr. Hasan raised between 1952 and 1984, he was the manager in charge of certifying all of the PSE pipe supports llegally sent to NPS for certificat:cn tnat Mr. Hasan re:ected.
Cov;ously. Mr. Ryan had ccmp';ete snowlege of every concern Mr.
Hacar raised over the use of incensistent criteria snen certif y:ng pipe supports designed by : ner groups using different
. e, criter:a.v After rejecting a PSE pipe support due to differences in criteria, particularly in Ric!.mond Insert design, M: . Hasan would take the re]ected pipe support package to Messrs. Rencner and -
Hemrajant. Mr. Hasan would show them the reascn ha sas re;ecting
ne package and plead with them to speax to Mr. Ryan about his concerns over certifying pipe supports with d.fterent sets of cr!teria. He particularly pleaded witn nem to exp'ain to Mr.
5. Respondents' clain that Mr. Hasan only rejected pipe support packages directly to line engineers, not to management, and that "none of his supervisors at Comanche Peak had any information or i belief that Mr. Hasan had any sa:ety concerns" Resocndents' Brief in Support of the RD&O, at p. 13, is ridiculous on its face given Mr. Ryan's role in illegally certifying the very pipe supports that Mr. Hasan had rejected. For a more detailed account, see Section VI, infra.
'O- a'i n t'if f s '
Exhibit G
Plai n tif f s '
Exhibit G Ryan the:need for a single set of criteria when ' certifying a >
Richmond Insert. Mr. Hasan's pleas were in vain. Every manager ;
he spoke with uniformily came back to inform Mr. Hasan that Mr.
Ryan had empna*.:cally rejected h;s request, (Between January, 1982 and May, 1984, Mr. Hasan requested tne following canagers te discuss with Mr. Ryan nas concern Over the certification of Ricnmend Insert design using inconsistunt criteria: Mr. Rencher, j Mr. Hemra:ani and Mr. $herrer; in 1985 ne requested the same of l
Mr. Chamcerlain and Mr. Hill (Tr. 258, 264-266). Mr. Chamberlain test:fied that he brought Mr. Hasan's concerns directly to Mr.
Ryan between February and August of 1985, Tr. 166, 190.
Well before Mr, Hasan was transferred cut of NPS, Mr. Ryan's contempt ever Mr. Hasan's rejection of pipe suppcrts was so ecmplete that ne once.made an ctsceae gesture at Mr. Hasan when he saw him in the hallway. Tr. 274-275.
After receiving a retaliatory transfer out of the NPS group (against his wishes), Mr. Hasan was assigned to work under Mr.
Barry Hill. It is while stationed in Mr. H;11's group that Mr.
Hasan would repeatedly threaten Mr. Hill that he was about to "go to 'the NRC," unless his safety concerns were adequately addressed. Tr. 273, 378, 443-444. On one of the more acrimonious occasions, Mr. Hasan shouted out loudly encugh fer the entire section to hear his threat to go to the NRC. As Mr.
Hasan explained, "
. . . they were forcing me to sign . . . wrong documents. . . therefore, trouble was the natural cutcome of it."
Tr. 378-379. Mr. Chan.berlain corroborated the f act that he had 7 .: . .i.Mo i:$ # '
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,__ Exhibit G ceen told by Mr.' Hill that Mr. Hasan had threated.to "go to the i NRC." Tr, 192. Mr. Ryan was dul informed of the incident once l
he returned from vacation. Tr. 532, 536.
Indeed, f rom the moment Mr. Hasan stepped foot in Mr. Hill's group, ne was subjected to ext.s:.ne harassment . At least once a weet Mr. Hill would approach Mr . Hasan and call nim a ' spy" or an
' agent" for CASE or tne NRC. Notably, Respondents did Tr. 270.
not ca'l Mr. Hill as a witness to refute Mr. Hasan's testimeny, nor did Respondents notice Mr. Hill for deposition.
Knewledge of Mr. Has.an's saf ety concerns had to be known to I betn Mr. Ryan'and Mr. Finneran due to their membership in the Des:gn Guidelines Commit tee." Tr. 21-22. The Ccmmittee had abcut 6 members in all, including Mr. Chamberlain. Tne Design Gu:delines Committee was responsible for all enanges made to the design cr:,teria used Q the Pipa support Design Group (PSE) when qualifying pipe supports.
Often when Mr. Hasan would raise a saf ety concer n he would refuse to sign-off on the paperwork unless he received in writing a memo f rom the Design Guidelines Committee stating that Mr.
Hasan was to ignore a particular concern when certify;ng the design of a support. These memos came directly from the Design Guidelines-Committee.
The memo writing function of the Design Guidelines Committee kept -its members constantly appraised of every saf ety concern Mr.
Hasan raised. Indeed, Mr. Chamberlaintestified that whenever Mr.
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Plai n tif f s '
Exhibit G '
Hasan raised a technical concern during the certification of a ,
pipe support, he was forced to present Mr. Hasan with a memorandum before Mr. Hasan would release the package. Tr. 156.
Thus, as members of the Des;gn Guidelines Committee, Messrs.
Ryan and Finneran knew every package Mr. Hasan refused to sign off on and wny.
Two memos from the Design Guidelines Commir 'ee addressing Mr , .Hasan's concerns were *urned over in discovery after tney were altered by Mr. Chamberlain at the direction of Respondents' counsel. Chamberlain Deposition Tr. at p. 217. One altered 'i memorandum concerned minimium weld violaticas (Concern No. 65 as identified in CX 14); the other, U-bolt stiffness (one of the concerns Mr. Hasan raised to Mr. Finneran on August 19, 1985).
Both were suomitted as exhibits to Complainant's Second Motion c
o: Default Judgment or in the Alternative for Disqualification (Ir.hibits ' and R thereto).5/
6. In an apparent abuse of discretion, the ALJ denied Complainant 's Second motion f or Def ault/Disqualific3iton (dated June 16, 1987). The motion was_ based on the facts surrounding the alteration of two key and vital documents concerning Mr.
Hasan's whistleblowing disclosures concerning miniminu weld viola tions (Exhibit 7) and U-Bolt stiffness (Exhibit S). This motion upon receipt, was denied by the ALJ as being
" inappropriate." See Order of Judge Lindeman, Dated June 17, 1 1987. Respondents were never required to respond and indeed they ,
l did not do so. Exhibit 7 constitutes one memo given to Mr. Hasan l l by Mr. Chamberlain on one pipe support package Mr. Hasan refused l to certif y until his concern over minimium weld requirements was addressed by the Design guidelines Committee. A second memo concerning weld requirements, CX 9, was also created by Mr.
Chamberlain af ter Mr. Hasan again would not proceed to certify another pipe support.
~~a.,~~
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Plal n tif f s '
~~Exhibit G . ,~~
Obviously, as members of the Design Guidelines Ccmmittee, e Messrs. Rayan and rinneran nad intimate knowledge of Mr. Hasan's safety concerns atout tvery isst.a on which Mr. Hasan caused a meme to te drafted.
In additicn to the abcve, Mr. Ravada test:fied at lengtn
~~nat he nad a :nree nnu. c nversation witn Mr Sneran en Aucyst~~
.6, 1955, of which one hcur nothing but the sub;3ct of Mr.
Hasan's sa:ety ccncerns was discussed, Tr. 78; including Mi.
Hasan's concern ever punching shear and Richmond Inserts. Tr.
75. Mr. Ravada's testimony concerning his nour-long conversat en t with Mr. Finneran acout Mr. Hasan's sa f ety concerns was egna t :c.
let Mr. Finneran altogetner denied the conversatien ever tcok place. Indeed, nct only did they discuss Mr. Hasan's concerns, Mr. rirneran acxed Mr. Ravada if he knew wnether or not Mr. Hasan nad gene to the NRC with nis concerns, and Mr. Ravada testifled tnat he informed Mr. Finneran tnat Mr. Hasan may have already gone to the NRC. Tr. 75. Once again, Mr. Finneran's memmory failed; he denied the conversation ever took place. Tr. 26. Mr. ;
rinneran's memmory also failed him when he cculd not recall conversations he had with Mr. Rencher about " spies" for CASE existing on site. Tr. 24. Mr. Rencher had no dificulty recalling these onversations. Tr. 116 Witnout question, t.1e concerns Mr. Hasan raised when checking pipe support packages caused Mr. Ryan to fall behind schedule in hin ef fort to certify the plant. Indeed, Mr. Ryen admitted that Mr. Hasan' raised more technical concerns and r.e:no . ,fis ' .-
E t hbit G .
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Plai n tif f s '
Exhibit G re;ected more PSC packages than anyone else. According to Mr.
)
Ryan, Mr. Hasan's r epeated reject icn of p;pe support packages caused " disruption" te nts prcducticn echedule. Tr. 543-544.
, MR. HAEAN's REJECTION Or MP. EYAN'S P

PC SUFPCRTS T.".e u; p'.e rea;1t- is that Lut fcr Mr. Ryan's adve

se reccmendat

:n, Mr. Hasan wcu;d have been hired by Stone &
Wetster. Mr. Ryan g a '< e as his only alleged ret fcr net rec;=ending Mr. 'iasan the fact that Mr. Hasan's pres.nce en si.e caused disruption during the certification process.
!ne d;stupt.cn was caased due tc r trendcus des;;n flaut u r ria c a n u n c v e r e d ',, r. . . e :eview;na pipe support designs. The e r i m a r '., cause of tne desta.n f;aws, as far as Mr. Hasan ceuld tell, ,sas due tc tne use cf inconcastent design criteria when d e s .gn : ng a nd cc n s t r ac*. ; ng t. e pla nt .
The crux cf tPO problem w s that Texas Utilities had e s t a .211 s n e d tnr ee separ ate organizations to design and ce r t i f y discrete pertions cf the Comanche Peak pipe support system. They
.ere (1) tne Nuclear Pcwer services, Inc. group (NPS or NPSI), a subcontracter cf Texas Ut:11 ties: (2) the Pipe Support Engineer:ng group (PSC), managed and staffr. by Texas Utilattes a relf, and (3) the !TT-Grinnell group (ITT), also a succentractor of Texas Utilities.
Eacn design g: cup was resoonsible for develeping its own design criteria and for certifying every pipe support within its scope.
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Exhibit G i Thus NPS-designed pipe supports were to ce reviewed and ,
certified exclusively according to tne NPS criteria. If a p:pe support denigned cy NPS could not te qualified pursuant to NPS criteria, at was tc te re;.ected and redesigned by NPS. The same I
was true for pipe supports des;gned by PSE and ITT. It is, and I was, axiumatic that eacn p:pe support was to be certified us:ng cnly one set of criteria -- the criteria with which it had been designed. Indeed, pursuant to contract and NRC regulations, ne pipe support was to be designed according to one group's criteria and certified under ancther grcup's criteria.
So much for tnecry. In practice, Texas Utilities was apparently engagee in a fraudulent seneme t0 certify the pipe support designs of the Ccmanche Peak plant arbitrarily changing the secpe cf pipe support and certifying i t with criteria etner than what it had teen designed with.
Line engir.eers, including Mr. Hasa .ere not aware tnat snitting pipe support packages frcm grot: group during the certificaticn process was illegal. F.ather, Mr. Hasan only knew that management's p:actices were centrary to standard engineering principles. Wnat no nad unwittingly uncovered was an cpparently tliegal shifting cf pipe support packages between groups for cettification. r . Hase, recogni:ed that the only way to assure the integrity of the pipe support system was to institute a uniform set of design criteria for the supports be_ng transferred
! cetween groups.
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Exhibit G .
Mr. Hasan's remedy te the design flaws he uncovered were simple: introduce a un form design ct:teria. What Mr. H a .2 3 n didn't realice was that such a remedy wculd acct the reasgn that tne pipe suppcrts were ceing transrerred cetween grcups 11 agally in the first place.
Tne sey ccncern Mr. Hasan nad cver tne use of multiple sets c! design criteria tc certify tne same s;ngle pipe support concerned he suppcrt's anchcring *teenanism, known as a Richnend Insert. As Y. r . Hasan reastned, s;nce there was no vay of kncwing in advance how the adgacent Richmond Insert had been designed (due tc the trancter cack and fer*n of pipe supports), then the e
.:as nc way te pred;:t hcw ine different pipe support designs sculd interact snculd a p;pe suppert fa:1. A orief layperson's definit:cn cf a Racnmend insert is necessary before the gravity of Mr. Hasan's ccncern can te apprec:ated.
A Rienmond Insert :s a steel structure, shapfed like a pig's tail (helical spring) that :s placed into the foundation at the time of concreting. Once the concrete foundation is cured, a steel rod is screwed into the portion of the Richmond Insert that ts expcsed at tne surface of the foundat en. Virtual)y, the entire support system for the Class 1 (safety-related) piping rystem is anchored to a Richmond Insert.
One concern Mr. Hasan had over using different sets of design criteria when certifying the Richmond Insert design of the plant was that a progressive failure of the Richmond Inserts could easily result because the engineering consequences of interchanging the different designs had not been worked out.
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Exhibit G l
i i n crder to better understand Mr. Hasan's' concern, Imagine a
line of dcminces. The force necessary to kneck down the e, tire line is only that needed to knock down a single dcmino. The s o.* e principle applies to Richmond Inserts -- if one fails, the lead
~~s transferred to the ad.,acent R'chnend Insert, and i f that~~
~~nnert was not designed to withstand the transferred load it toc will fail: and so en and so on.~~
The problem uncovered and reported t o managen.ent by Mr.
Hasan was that the uce of different criteria to qualify adjacent Richmond Inserts created the pctential for a progressive failure of the entire pipe support system at Ccmanche Peak. In a nut shell, one of Mr. Hasan's conce:nc over the Ricnmend Insert design was that although each ecmpany created its par ticular design tc assure that the transferred icad of one Richmond Insert ente the adjacent pipe suppcrt wculd not result i n a progressive failure, there was absolutely no way to determine what would happen if a Richmond ince": des gned under one criteria failed and its load was transferred to an ad:.acent pipe support designed using a different criteria. If the icad was transferred in such a war tnat it caused the adjacent pipe support's anchor to give way, a enain reaction result:ng :n the f ailure of all the pipe support could follow.
Thus if one Richmond Insert fails and takes its randomly certified neighboring pipe support with it, the combined force will cumulatively take out all the remaing pipe supports until the entire pipe support system collapses. The end result i sa meltdown.
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Plai n tif f s '
f, Exhibit G ,
Day in and day cut, Mr. Hasan pleaded wi,th management to ,
i correct this potentially catastrepnic des;gn defic:ency. He l
\
demanded that a uniform design criteria be used in certifying Rienmond Inserts, or at the very least that calculations and/or '
experiments be performed to determine the engineering consequences cf using d;ffe:ent c:lteria on the same pipe supports.
Indeed, Mr. Hasan was blcwing the whistle on the consequence cf a fradulent scheme Texas Utilitaes implemented to certify as safe an unsafe pipe support system. By using three separate sets of criteria, Texas Utilities had created a ecmplex scheme where a rejected pipe support could te sent from grcup to grcup tw find ,
criteria that wculd allcw that particular pipe support to be certified. As it would turn out, Mr. Ryan eversaw the transfer of pipe suppcrts frcm group to group, In effect, ne was one of the chief ringleaders behind tne fraudulent certification process.
Ocviously, Mr. Hasan's conatant whistleblowing over the use of multiple sets of criteria to certify the same pipe support and his constant rejectier of p pe supports due to the use of inconsistent criteria particularly vexed Mr. Ryan for at least twb reasons: first, it expcsed the illegal scheme to possible detecticn, and second, it slowed production, interfered with senedules and caused cost over runs.
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Exhibit G
IV. THE TR AUDUL:NT CCHTir! CATION PROCCSS Mr. Ryan, Mr. Finneran, and others wers nothing less than criminal :acketee:s engaged in a scheme to certify as safe a defectively designed and cenctructed pipe support system.
The seneme was simple; if a med fled pipe support could not be certified by one group, the "secpe of responsibility" for the f:,111ng pipe suppert was transferred to another grcup in the hope <
l cf certifying at without any rework. Bencher Deposition l Transcript at p. 264 Chamt>e r lain Deposi t ion Transcr ipt at pp.
95, 186, 190.
In essence, the fraudulent r,cheme fcr certifying defect;ve l pipe supports with multiple sets of criteria was illegal and !
resulted in a knowing'.y unsafe design. But Texas Utilities management did nct care becaust it saved them money and kept them en schedule.
Mr._ Chamberlain refers to tnis illegal scheme as the "go- '
around." Chamberlain Depcsition Transcript at p. 190. As the l
name implies,.a pipe. support design that could not be certified u'nder its criginal criteria would go around from group to group in search of criteria that would allow certification.
This fraudulent scheme (hereinafter referred to as the "go- i around scheme") wts-identified in the May 28, 1987 list of the 65 concerns Mr. Hasan originally identified in Cx 14.
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Plai n tif f s '
Exhibit G Acccrding to Ccncern !;c. 21 :
Thtre is a concern :nat if supports did not meet t.ie appreptiate design criteria using the !JP S design specificaticn, the supports were sent tc ancther pipe suppert des;gn group, such as PSE, and w:uld be considered acceptable using different design criter a. This ccnditicn indicates that different design criteria was used in the various pipe suppert des:gn gicaps ( !; P S , ITT-G and PSE).
See Ox 14 at p. 3.
When Mr. Renenet, One cf Respondents' Own witnes,ses, was asked under catn during his der: sit:cr f Ccncern !Jc . 72 were true, ne answered with an absolutely anqua' . fled "Yes." Rencher Depositien Transcript at p. 20. Mr. Fencher oversaw botn the
!;PS and ITT g rcups . He had f:rst nand knowledge of the pract:ce.
Wnether er net ne snew :t .e a n :11egal :s unkncwn.
Similarly, when Mr. Chamteria:n was asked under cath during his depos i t ion whe the r Ccnce r n !;c . 23 were true, ne lin.ewise testified unequivccally thn :: was ccmmen practice on c te to
" transfer responsibility" f ran group to grcup during the certificaticn prccess. Chamberlain Deposit:cn Transcript at p.
~~95. Mr. Chamberlain pcanted out during his depcsit:cn that one cf the reascns pipe suppcr packages were sr;: ted frcm grcup tc g cup was *nat modified Riennend insert designs en s;te eculd not~~
< be gettified pursuant to their Original des.gn ct teria.
According to Mr. Chamberia:n, :f one group "d:.d not have criteria addressing the Richmond Insert tube st^el design...then we would transfer responsibility (from tne group that originally designed the support) to the site engineering group (PSEl." Chamberlain ;
Deposition Transcript at p. 95.
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Plai n tif f s ' '
l Exhibit G .
The gc-arcund seneme was brought expressly to the attention cf the AL' during tne nearing and expl:citly brief ed in Ccmplainant's pcot-hearing brief and reply brief. Prominent.y stated therein was the testimony of Mr. Rencher: '
O. ...were you aware whether or not Mr. Hasan rejected Mr. Ryan's pipe support engineering grcup [PSE1 pipe supports wn le working in ycur group !NPSl?
A. There were pipe supports that were rejected cut of my group, and I am certain Mr. Hasan had reviewed some of those.
Q. And were they ccming frem Mr. Ryan's group?
A. Yes, they were.
O. ...sould Hasan attach a memo t [the PSC packages he was rejecting]?
A. Yes....
O. And !Hasan) would sign these memos re:ecting
'Mr. Ryan's packages ccming from PSE)?
A. Yes.
Hearing Transcript, at pp. 120-121. Also see pp. 125, 130, 239, 275.
Undeniably, the pipe supports making the go-around between PSE anc NPS were being sent in an effort to get them certified. .
Ace; n ng t o Mr . Rencher 's depcsition testimony t O. . . . the !JPS group was rejecting PSE suppor ts 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. ,
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Exhibit G 1
Q. ...in 1985?
A. Yes.
Tne NPS grcup was rejecting PSE packages during the certification process, right?
A. Yer.
O. Of these that were being rejected, were they ever then tscalculated under different cr.teria?
A. Yec.
O. And then they were certified after they were recalculated uder dITferent criteria?
A. ies.
Rencher Depcsition Tr., pp. 78-6'.. (emphasis added).
Mr. Rencner went en to test!!y that he had had nunerous conversations witn Mr. Ryan about hcw tc lower the rejection rate of the PSE packages going into NPS. Rencher Deposition Transcript at p. 67.
Indeed, Juring the nearing, Respondents' own counsel elicited testi. mony f rcm Mr. Ravada to the ef f ect that NPS rejected p:pe_ supports from PSE. In the words of Mr Ravada:
"Mr. Hasan's group (NPS) r<tjected some of the supports-of cur group-[PSEl en the basis of the Richmond inserts failing...and (thote) Support (s) cane to our group (after that for i
certification)." Heating Transcript at p. 88.
a4
- 23 ~
hhibit G
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Plai n tif f s '
Exhibit G l
V.
THE CC-AROUND SCHEME V:OLATED NRC REGULATIONS AND BREACHED CONTRACTUAL AGREEMENTS
l Tne licensing of ccrcereial nuclear power facilities is regulated by the Nuclear Regulatory Commission pursuant to the Energy Reorganization Act (ERA). The ERA gives the NRC the power to enact necessary regulaticns. Pursuant to 10 C.P.R. Part 50, l Appendix B (Quality Assurance Criteria for Nuclear Power Plants),
" Des;gn enanges, including field changes," shall conform to the l "criginal design and be approved by the_organi:ation that performed the original design," and that " changes to documents '
shall_be reviewed and approved by the same oroanizations tha._t.
Eerfermed tne original review and approval." 10 C.F.R. 50, App.
B (!) and (V1) (Empnasis added). Appendix B establishes that under n0 c;rcumstances are pipe supports to be transferred cet een groups during the design or field mcdification phases.
Appendix B f orbids tne transfer of PSE-designed supports into NPS for cert;fication.
It likewise fortids the transfer out of NPS to the PSE group pipe supports that could net be certified under NPS criteria. Apperdix B likewise establishes that field and deaton mcdifications have to be made by the organization which designed the p;pe support.
The record establishes that Texas Utilities management (Messrs. Ryan. Chamberlain, and Finneran) inntituted a scheme to transfer pipe supports from group to group during the -
certification process. Both Mr. Ryan and Mr. Finneran knew that this practice to be in violation of both NRC regulations and the contractual arrangements between NPS, ITT, and Texas Utilities.
24 - '
D15ffS*
1(hibit G
, Plai n tif f s '
, Exhibit G 3
The test meny establishing that pipe supports were certified by organi:ations otner than the organizatien certifying the original design s irrefutable. Mr. Rencher, without qualificaticn, testified that the "!;PS group was rejecting PSC packages durinc tne cert:ficatien crocess." Rencher Deposition Transer!pt at p. e1 iemphasis added). Mr. Rencher further testified that the PSE pipe supports transferred into !JPS could not be qualif;ec, and wnen :nat happened they were again transferred and qual!fied using still other criteria. Indeed, Mr. Rencher testified that a full "25 percent" of the PSE pipe supports transferred into tips were rejected and returned to PSE and " recalculated under different criteria." Rencher Depositicn Tr., at p. 81.
Cbviously, Mr. Ryan snowingly viciated 10 C.F.R. 50 App. B when he transferred the PSE pipe supports into !JPS. He ecmpounded the violation wnen he transferred the same pipe supports back cut of tips and into PSE whenever the support could not be certit:ed oy t;PS.
tJo t only did tne illegal transfer of pipe supports violate tiRC regulations, :t violated the contractual arrangement.s between Texas Util: ties and :ts subcontractors, tJPS and ITT. In perhaps tne 'only t ru thf ul com:nent Mr. Ryan made during the hearing, he explained-that There were separate contracts. The original PSE designs were (to be) reviewed by PSE. The original 14 PSI designs were (to be) reviewed by tiPSI.
Hearing Transcript at p. 550.
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Plai ntif f s '
Exhibit G y!. MR. RYAN WAS "ANAGEMENT'S POINT MAN DURING THE ILLEGAL GO-AROUND SCHE.ME AND AS SUCH D RECTED IT Every scheme needs a key player. :n the case of tne 90-arcund seneme, ;; -as none ether than Mr. Jay Ryan. Mr. Ryan
versaw the transfer ;; pipe supp:rt packages from gicup to grcup and used tne PSE group as the staging ground. All re]ected pipe supports, it seems, e.ther orig:nated cut Of PSE cr were transferred into PSE (and then apparently transferred elsewnere).
Just as the testimony of Messrs. Rencher, Ravada, and Hasan ectablishec ne NFS-PSE transfer, Mr. Chamterlain's depcsat:cn established tne ITT-PSE transfers. As Mr. Cr.iberlain testified:
...some :rcanies did nct have cr;teria addressing certain types ci design. For example, ITT Orinnel; d:d not have criteria addressing the Richmond insert tube steel design. If !a pipe support i got redesigned that way, then we would transfer resconsibilitv for that hanger frcm
~~ITT-)Granne.1 to the site engineering group~~
!PSE}.
Cnamterla:n Deposit:cn Transcript, at p. 95 (emphasis added).
The process of transferring pipe supports back and forth tetween grcups generated paperwcrk. The paperwork problem Occurred after a pipe support was transferred and the second group still eculd not certify it. Only then would a line engineer fall out a :nree part " speed memo" addressed directly to Mr. Ryan. These speed memos unrecorded anywhere on site, were used to explain to Mr. Ryan the reason a particular transferred pipe supports had been rejected.
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Plai n tif f s '
. Exhibit G !
1 Mr. Renener testified both during the deposition and at the ,
I hearing about the creation of these speed memos during the go-around scheme:
C. (W: hen Mr, Hasan re;ected Ryan's pipe support packages (he would; attaen a memo to those packages.
A. Yes....tne meme would be initiated in my ,
grcup, yes.
l C, And (Mr. Hasan' wculd sign those memos re;ecting (the PSE-designed pipe supports that he could not ce r t : f y using the !;PS crite: la)?
A. Yes.
Tr. 120-121.
The speed me:rcs at tached tc the rejected pipe suppcrts were not logged er rec rded cn site. They were simply cover memos ca rected tc Mr. Ryan and, as suen, Mr. Ryan was free to do with them as he encse. He threw them away, destroying the paper trail that would tell why the pipe support nad been rejected. He was then frae t$ get the p;pe support certified elsewhere, albeit illegally. The fact that Mr. Hasan would reject pipe supports and attaen a memo to the packaga addressed directly to Mr. Ryan, and that thereafter tne very same pipe support would be certified in another grcup withcut mcdification is undeniable, as the follgwing testimony of Mr. Rencher demonstrates:
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, _ . , , _ . . . . , - - - - - - - - - - - - - -- - -c-- ~ ~ ' " "
Plai n tif f s ' ;
Exhibit G Are you aware whether or not Q. {Dy Mr. Kohn) ,
Mr. Hasan could not certify...some of the packagta he was checking?
!!e could not certify scme A. (By Mr. Rencher) of the packages because of the NPS criteria on Richmond inserts, yes.
Q. Did you take tnose pacsages to the PSE group for certification?
A. These supports were re;ected to the PSE gtcup.
Q. By "re3ected to the PSE group," what de you mean?
A. Well, he att3ched a memo to it from my croup to the PSE croup saying the supports were ie ected for the following reasons...
And would the PSE croup then certify the Q.
packages...
A. ...yes.
(By Mr. Kohn) And they could do that because C.
PSE_was using dirterent criteria t nan !JPS ?
A. Yes.
Bencher Depcsition Tr., at pp. 96-97 (emphasis added).
On - the memos were destroyed, no paper trail of the go-around scheme remained.
Not only was the transfer of pipe supperts 111egal, but so was the destruction of the paperwork i
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l 28 - -
l l
l
Phai n tif f s '
Exhibit G l
accompany:nq the rejected supports.1/
To date, it weald seem that cnly two reples of such cover I
memos escaped Mr. Ryan's watchful eye. One of them is from a Mr.
M.J. Kaplan to Mr. Ryan (att ched hereto as Exhibit 1). This speed memo clearly states tha: : is ce:ng issued due to problems ,
1 Mr. Kaplan (who was removed frcm the site due to his repeated rejection of pipe supports and replaced by Mr. Hemrajani)8/
fcund when attempting to cert:fy a PSE-designed pipe support with NPS criteria while working in the NPS ;rcup. The speed memo clearly states that the pipe support package was being rejected l during the cert:fication process, indeed, the reply portion of tnis memo is signed by Mr. Renener, and states that the pipe support, as re:ected by Mr. Kaplan, could nonetneless be "cettified" under NPS criteria pursuant to authority from NPS's hcme office.
7. Indeed, a 10/18/84 ASLB Order demanded Texas Utilities to provide the Licensing Board with "...all relevant memoranda and deficiency paper that indicate directly or indirectly the awareness and resolution..." for every " unstable support" existing on site.
8. Mr. Kaplan was not identified in Respondents' answers to interrogatories requesting the identity of all of Mr. Hasan's supervisors. indeed, when Complainant's counsel attempted to ask questions about Mr. Kaplan during depositions of Respondents' witnesses, Respondents' counsel refused to allow the witness to answer the questions. Some of these questions were certified for the purpose of appeal.
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Exhibit G .
The fact that the NPS home oftice was invoived in certifying -
PSE-designed pipe supports demonstrates tnat the NPS Mcme office wcu.'d have known of the 111egal scheme. Respondents' claim that NPS had ne sncwledge of Mr. Hasan's whistleb1: wing activit;es is s urply not credible, given the apparent cceplicity cf NPS in the
~~c-arcund ccheme.~~
The arregance and utter centempt fcr 'aw cn the part of Perpendents is dem nstrated in that after Messrs. Hasan, Rencher, -
and Ravada had testified at length abcut the gc-artund scheme, Respondents allowed (indeed encouraged) Mr. Ryan to lie straight-faced that the scheme never ex;sted -- cr that at least Mr. Ryan had no kncwledge cf it. Mr. Fyan's repeated denial of the fact tnat pipe supports we re Deing tr ansf er red hack and forth between grcups is disgusti".g, i rr.o r a l , unethical, and contemptuous.
Simply stated, it is per nry.
Mr. Ryan chose to perjure himself rather than admit to the gc-around scheme, unen in fact te was tne key player. His testir.cny was clear and unequivcca2 -- that Mr. Hasan never rev;ewed a PSE pipe support :le wer ;nc in the NPS group. Th;s testimony is censistent with has sworn anc signed deposition test; mony, which reads:
O. (By Mr. Kchn) Did you know that Mr. Hasan was rejecting packages trom your group?
A. (By Mr. Ryan} No. Why would he be?
1, O. Did Mr. Hasan reject PSE packages due to inconsistent criteria (between) NPS guidelines land PSE guidelines}?
A. He didn't review any PSE packages.
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Plai n tif f s ' '
Exhibit G . .
Q. ...your testimcny is (nat Mr. Hasan reviewed nu PSE packages?
A. (Hasan) only rev;ewed NPS: packages when he was in the NPS: group.
O. IDlid Mr. Hasan ever re;ect a PSE packaae that had a'e ready teen cer tified because it did not meet NFS guidelines?
A. 'icu can't crcss guidelines...you don't cross design guidelines te review packages.
Ryan Deposition Tr., at pp. 8-10.
Similarly, Mr. Ryan's hear:ng testim ny states that while in the NPS grcup., Mr; hasan never reviewed a PSE-designed pipe support package:
Q. [By Mr. Mack) And were (PSE-denigned pipe supportsj ever reviewed by anyone at NPS?
A. [By Mr. Ryan) No....NPS would have reviewed their original designs. "ersonnel in PSE would have reviewed PSE designs..
O. Well, what it, in fact, unat occurred was something came out of PSE and it wai. being reviewed by NP9? Would that create a problem?
A. It sculdn't happen.
Q. It would never happen?
A. No.
Q. Okay. So that while [Mr. Hasan) wo:<ed-(-in the NPS group) no package designed .n year group (PSE) would ever be reviewed by Mr.
Hasan.
A. That is correct.
Tr. 540-041.
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,,etge, i e Iil I 3 Q.. Are you certain that none of yout, (PSE] , )
packigas were ever reviewed by Mr. Rencher's l group (NPS) during the time...Mr. Hosan was l working there? l A. There were separate contracts. The et!ginal PSE designs were reviewed by PSE, The original NPSI desi.;ns were reviewed by NPSI.
. Tr. S49-550.
VI. IN VIOLATION Ol' LAW AND LCCAL ETHICS, RESPONDENTS' COUNSE.
ALLOWED MR . _ RYMJ TO PLRJt'RE H I MSE',r ;
'1 l Respondents' counael cannot in good Ialth deny knowledge ,
i
- thtt PSE-designed packagen were being transferred into the NPS ,
group and then certif;ed with NPS criteria The facts leading to l thitt cor,elusio., a re inescapable. l t
Fi r 9 t , Respcndent s ' counsel was present iuring the ,
i depositivn tert. mony of Mr. Rencher and Mr. Chamberlain. : ndeec, '
when Mr. henche.: w s questioned about the illegal i.ransfer of -t pi pt suppor ts f rcm PSE to NPS, Peopondents ' ccunsel interrupted t.he questioni'ig to apparently cotrect C mplainant's counsel's questions regarding the direction of the' flow of packages between ,
NPS and PSE:
l Q. (BY MR, KOHN) The NPS group was rejecting -
PSE packages during the certi!itatlon . ,
process,.right?
i: '
A.- Yes.
Q. ' Out of' all the NPS packages going to PSE,
'what percentage were being rejected?
! A. Of all the NPS packages going to PSE?
i'
i. MR. WOLKOFF You've got it reversed, i
{ .. .
}
Rencher Deposition Tr., at p. 81. !
l L
Plal n tif f s * :
32 - - 1 i.
i Exhibit G .
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Plal ntif f s * '
Exhibit G
~
Clearly, Respondents' counsel, Mr. Wolkoff, had a grasp of the apparently illegal transfer of pice suppcrts between PSE and l l
NPS sufficient to alicw him to interrupt Complainant's counsel's l questioning to assert his knowledge of the direction of how the l pipe suppcrts flowed between PSE and NPS, Similarly, at the nearing, Respondents' ccunsel, Mr.
Wolkoff, suojected Mr. Rencher, under cath, tc a series cf leading questicns tnat detailed the flew of pipe supperts between PSE and NPS:
BY MR. WOLKOFT [ Cross-examination of Mr.
Rencher}
Q. During the time period that Mr. Hasan wcrked under your supervisicn at Comanche Peak, new many different sets of design criteria were in place?
A. There were tnree...!TT Grenelle [ sic), NPSI !
and the PSE design guidelines.
O. And did they differ one to anctner in ertain respects?
A. Yes, they-did.
O, 'But I take it each pipe [ support) th was gualified had to be qualified under one of the tnree different sets of criteria. Right?
A. That is correct.
2 O. What set of criteria was empicyed in (tne NPS) group?
A. The time he [Mr. Hasan) was in my group, the NPSI criteria.
O. And what about this group with Mr. Ryan where the packages were coming from Mr. Ryan? Wnat type of criteria were employed there?
A. That was the PSE design culdelines.
l _ 33 Plai ntif f s' i Exhibit G c
i>lai n tif f s '
Exhibit G Q. And Mr. Hasan's complained to you when he '
reviewed those oackaoes (refering to Mr.
WaFs PR paciage s l t ha t the criteria that
~
Mr. Ryan's group used were not the came aA' the criteria that he was us2ng.
A. Yes.
Hearing Transcript, at pp. 12 4 -12 5 (e.tphasis added).
The fact tnat Respondents' counse. could lead Mr. Pencher ey the nese detailing the transfer of pipe suppor ts between FSC and NPS, establishes knowledge on the part of Respondents' c ou r, s e l .
As Mr. Wolkoff's questioning of Mr. Rencher establiches, Respondents' counsel obviously had to know of the illegal ,
transfer of pipe supports between groups. How else could he lead his own witness through the illegal transfer process in the first place.
It is Mr. Wolkoff himself who states en the record that pipe supports were " coming f rom Mr . Ryan('s group)" only to be
" reviewed" by NPS and certified with different criteria than the criteria "Mr. Ryan's groJp used" to design the pipe support in the first place. The fact that the :estimony Mr. Wolkoff provided when examining Mr. Rencher reculted in some of the strongest evidence demonstrating the fact tnat pipe supports were illegally being transferred between the different groups en site is'the greatest indictment imaginable.
Given Mr. Wolkof f's questioning of Mr. Rencher during the l
hearing, coupled with his cor rection of Complainant 's counsel during Mr. Rencher's deposition, demonstrates beyond any conceivable doubt that Respondents' counsel had actual knowledge 34 -
Plai n tif f s '
Exhibit G ll ut 1ll
Plai n tif f s '
Exhibit G cf tne fact that Mr. Ryan was sending PSE-designed pipe supports ,
to NPS for qualificat;en using NPS criteria.1/
The facts speak fcr :tself. after cortecting the record as tc the direction ci the ficw of packages between NPS and PSE during Mr. Rencher's deposit cn, and after leading Mr. Rencher inrcugh the illegal transfer sf pipe suppcrts between NPS and FSr when he test fied at the nearing, Resp:ndents' ccunsel allowed Mr. Ryan to falsely testify tnat pipe support packages were ne*
teing transferred between PSE and NFS.12'
9. Indeed, the Ropes & Gray law firm, wnc represents the Respondents, was lead counsel in the licensing hearings befcre the ASLB. Furthermcre, Mr. Wolkoft submitted afidavitc on the part of the entire Ropes & Gray law firm and therefore, the Kncwledge of the attorneys engaged in the licensing proceedings before the ASLB must be imputed to Mr. Wolkcff as well. Also, as detailed in Complainant's Second Motien for Default /Disqualificaiton, at p. 13, a co-counsel relationsnip between predecessor counsel, who witndrew pursuant to settlement for thir, proceeeding, and the Ropes & Gray firm exists (or existed wnen relevant to this case). Therefore, knowlege on the part of predecessor counsel is likewise imputed to the Ropes &
Gray law firm concerning knowledge of the transfer between PSE and NPS pipe supporta during the certification process.
Beyond knowlege on the part of Ropes & Gray over the issue of the apparently illegal transfer of pipe supports between the various groups on site, the fact remains that exhibits apparent:y originally altered by predecessor counsel during trial preparation, were submitted onto the record of this proceeding by Mr. Wolkoff with the knowledge that said exhibits were altered. .
~~10. As will also be demonstrated in Section VIII, infra.,~~
Respondents' counsel evdidently suborned perjury after Complainant initialy attempted to expose to the ALJ that Mr. Ryan had perjured himself at the hearing. In their Reply brief, Respondents' counsel defended Mr. Ryan's perjurous statements with false and misleading facts intending to, and in fact suceeding in, misleading the ALJ about the perjurous nature of Mr. Ryan's testimony.
Plai n tif f s '
Eh(hibit G
Plal n tif f s '
Exhibit G ,
Regardless Of when Respondents' counsel came to know of the .,
illegal go-around scheme le was undet a legal and ethical dut y to stop Mr. Ryan from perjuring himself at the hearing. If Respondents' counsel did indeed knew that Mr. Ryan was abcut to perjure himself and failed to halt this travesty of Justice, Respendents' counsel is utterly incons: stent with his duty as a court efficer and warrants the impositicn of narch sanctions, as the case law below demonstrates. Following the case law on perjury and subornation of perjury, ccmplainant will demonstrate that not only did Respondents' counsel allow its witnesses to per;ure themselves, but that counsel suborned the perjured statements as well.
W!thout question, "an adverse party's fraud or subornation of perjury permits relative free reopening of the judgment (in this case recommended decision) when the per jury goes to the heart of the issue." Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826, 822 (7th Cir. 1985). Also see, McKiscick v. U.S., 379 F.2d 754 (5th Cir. 1967); R,csler v. Ford Meter Cc., __
S73 F.2d 1332, 1339 (5th Cir. 1978)r Harre v. A.H. Rcbins, 750 F.2d 1501, 1503 (11th Cir _1985).
As an administrative agency, the Department of Labor has the
" inherent" power to do what is reasonably necessary to prevent fraud, irrespective of statutory authority. Alberta Gas Chems.,
Ltd. v. Celanese Corp., 650 F.2d at 12-13 (2nd Cir. 19__).
There is "no right whatever -- constitutional or otherwise -- fct a defendant to use false evidence." N! x v. Whiteside, 106 S.Ct.
i Plai n tif f s '
Exhibit G
Plal n tif f s ' '
Exhibit G .
9BB, 998 (1986). Any attorney who even cooperates with a a client's planned perjury risks " prosecution for suborning perjury, and disciplinary proceedings, including suspennien or disbarment." M. at 998. Also, any attorney "who aids false testimony by questioning a witness when perjured responses can be anticipated risks prosecution for subornation of per;ury...."
Id. at 996. Simply put, "under no circumstances may a lawyer either advocate or passively tolerate a client's giving false l testimony." M. at 996 (emphasis added). Even an attorney who attempts to remain willfully ignorant where known facts call for further investigation violates his professional and legal duty should he refuse to investigate t: J situation further. Florida Bar v. McLaonten, 131 So.2d 371, 372 (Fla. 1965) (suspension cf attorney for failing to make reasonable inquiry); State v.
Zwillman, 2'70 A.2d 204, 289 (N.J. 1970) (attorney has responsibility to inquiry into falsity of client's representations if he 'should know or reasonably suspect that the client's representations are false.") Also see, United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 n.13 (3d Cir. 1977)
(DR4-101(C)(3) read to require disclcsure): McKissick, 379 F.2d 754, 761-62 (5th Cir. 1967); United States v. Crasso, 413 F.Supp.
166, 171 (D. Conn. 1976) (" probable perjurious testimony must, of course, be irrmediately reported to the presiding judge in the interests-of Justice and to preserve the integrity of the judicial process"); In re Hoover, 46 Ari::. 24, 30, 46 P.2d 647, 649-50 (1935); Hinds v. State Bar, 19 Cal. 2d 87, 93, 119 P.2d Plai n tif f s '
Exhibit G 4
< gip e i n m e- .
g - - - - .
+.qn-a--, , - - - - - - , . - - - - - - - .,,e- - , - < , - _c----+,-w
r ien n tit t s '
Exhibit G .
134, 137 (1941); Thornten v. United States, 357 A.2d 425, 437-38 (D.C. 1976).
As the depositions and hearing testimony of the pertinent witnesses occurred exclusively in the state of Texas, it is axicmatic tnat the standards set forth under Texas state law are tne minin.um attorney standard of conduct counsel must adhere tc.
Under Texas law, "a lawyer shall net {:}
(4) Knowingly use ,;erjured testimony or false o
evidenc2.
(5) Knowin.;1y make a false statement of law or 4'
fact.
(6) Participate in the creatien er preservatien of evidence when he knc's or it is obvious that the evidence is false.
(7) Counsel er assist his client in conduct that the lawyer knows to be illegal er fraudulent.
(8) Knowingly engage in other :11egal conduct or conduct contrary to a Disciplinary Rule."
Texas Code of Prof. Resp. DR 7-102 (A)(4)-(8). Tex. Civ. Stat.
Ann Tit. 14 app. Cit. 12 58 (Vernon 1973). In adultien, A lawyer who receives information clearly establishing thatt (1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his
. client refuses or is unable to do so he shall reveal the fraud to the affected person or tribunal.
(2) A person other than his client has
^erpetrated a fraud upon a tribunal shall p ; omptly reveal the fraud to the tribunal.
Id at (B)(1) and (2).
Plai n tif f s '
Exhibit G e -
. Plal n tifIs '
Exhibit G l
In Nix v. Whiteside, the Supreme Court points out that: -
The more recent Model Rules of Professional Conduct (1983) similarly admonish atterneys to obey all laws in the course of representing a client: l l
" RULE 1.2 Scope of Represen'stion
"(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer known is criminal or fraudulent...."
Both the Medel Code of Professional Conduct and the Model Rules of professional Conduct also adept the specific exception from the attorney-client privilege for disclosure of perjury that his client intends to commit or has committed. DR 4-101(c)(3) (intention of client to commit a crime):
Rule 3.3 (lawyer has duty to disclose falsity of evidence even if disclosure compromises client confidences). Indeed, both the Medel Ccde and the Model Rules do not merely authorize disclosure by counsel of client perjury; they recuire such disc'oure.
. See Rule 3.3(a)(4); DR 7-102(B)(1):
Committee on Professional Ethics and Conduct of Iowa State Bar Association-v. Crary, 245 N.W.2d 298 (Iowa 1976).
These standards confirm that the legal profession has accepted that an attorney's ethical duty to advance the interests of his client is limited by an equally solemn duty to comply with the law and standards of professional conduct: it specifically ensures that the client may not use false evidence."
id., 106 S.Ct. 988, 995 (1986)(footnote emitted, emphasis in
-criginal).
', Unquestionably, the Fifth Circuit has always required
' mandatory disclosure by an attorney to the Court whenever fraud, including perjury, appears to be present. If any attorney fails to do so, the court states that the offending attorney should be Plai n tif f s '
Exhibit G
, +v , , - ~, - - , , , - - , , . , . . , -
~'
Plai n tif f s '
Exhibit G
- ~
subject to discipline had he continued in the defense without making a report to the court. The attorney not only could, but was obligated to, make such disclosure to the court as necersary to withdraw the perjured testimony from the considcration of tre jury. This was essential for good judicial administration and to protect the public.
McKistic<, 379 T.2d 754, 761 (5th Cir. 1967).
VI*. RESPONDENTS
~~COUNSEL IS GUILTY OF SUDORNAT*0N OF PERJURY _~~
Federal statute defines subornation of perjury as the procurement of perjury: "Whoever procures another to commit any per;ury is guilty of subornation of perjury." 18 USC 51622.
Per;ury is defined as:
The willful as'ertion as to a matter of fact, cpinion, belle., or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an artidavit, or otherwise, such assertion being material to the issue or point of inquiry and known to sucn witness to be false.
Black's Law Dictionary, Revised 4th Edition.
Clearly, Mr. Ryan willfully asserted at a judicial proceeding under oath material false statements concerning the transfer of pipe supports between groups and the improper use cf in' appropriate design criteria.
Additionally, it would seem that Respondents' counsel allowed Mr. Ryan to make the perjured statements, knowing that Mr. Hasan's case rested on the premise that he blew the whistle on the use of multiple sets of criteria during the certification of the Comanche Peak pipe support system.
Plai n tif f s '
Exhibit G ,
~~e- 4~~
- .__- -. _ . . - - . . - - . - _ _ _ _ - - ~ - = _ - - _ _ _ - . .
Flai n tif f s '
Exhibit G The fact is that Respendents' counsel knew in advance that ,
Mr. Ryan would perjure himself rather tnan admit tnat multiple sets of criteria were used to certify the some pipe support.
It would seem that Mr. Ryan's false testimony regarding the certification of PSE-designed pipe supports witn NPS design criterla constitutes perjury, and that Respondents' counsel's allcwing Mr. Ryan to testify falsely at his deposition and during the nearing (the same counsel is believed to have represented Mr.
Ryan personally during this preceeeding) approached subornation of perjury. "Under no circumstances" is an attorney even cllowed to passively tolerate a client's giving false testimony," Nix
v. wniteside, 106 S.C. 988, 996 (1986) (emphasis added). If tnat atterney should in any way cocperate with a client's planned pergury er even " aids false testimony by questioning a witness when perjured responses can be anticipated risks prcsecution for subornatien of perjury " including suspension or disbarment." 11 at 996-998.
The Fifth Circuit held in McKissick, that any attorney who even attempts to remain willfully ignorant where known facts call for further investigation violates his professional and legal duty should he refuse to investigate the situation further.
M c'K i s s i c k , 379 T.2d 754, 761-62 (5th Cir. 1967). Also see:
Florida Bar v. McLaghten, supra; State v. Zwillman, supra; United States ex rel. Wilcox v. Johnson, s u o,r a , ; United States v.
Grasso, supra., In re Hoover, supra., Hinds v. State Bar, supra.,
Thornton v. United States, supra.
Plai n tif f s '
Exhibit G
h4-..,-- __ - -6n i -
Plai n tif f s '
Exhibit G Respendents' ccunsel went well beyond turning their heads to ,
perjury; they went so far as to cover-up Mr. Ryan's per;ured testimony with a web of false statements -- unsupported by the established record and the truth. Such conduct, it would seem, constitutes subernation of perjury. Under Supreme Court and Fiftn Circuit jurisprudence, counsel's tacit submission of Mr.
Ryan's perjured testimony into the record, ccmbined with Respondents' coursel's reliance en that testimony to estchlish its case, evid>ntly constitutes the subernaticn of perjury.
The truth of the matter is that after the close of the nearing and after Ccmplainant's counsel explicitly exposed Mr.
Ryan as a perjurcr, Respcndents' ccensel engaged in a pattern of con. duct with tne knowledge anc i ntent of deceiving the ccurt to the effect that Mr. Ryan's testimony was ,ct perjured, kncwing full well hat it was.
VII!. JNDENTS' COUNSEL OVERTLY ENGAGE 0 IN SUBORNAT!ON OF Ph.sJrRY WHEN FILING RESPONDENTS' POST-TRIAL REPLY BRIEF TO THE ALJ When Mr. Ryan's perjured testimony was explained to the ALJ in a brief filed by Co.iplainant, Respondents' counsel invented a story that describes the transfer of pipe support packages from the PSE " field group" into the NPS group as " normal." In Respondents' counsel's own words: "In the normal course, NPSI packages flowed ficm the PSE field group to the NPSI unit."
Respondents' counsel then asserts that only NPSI-designed packages were returnad to the NPSI group whenever the PSE " field
- u- Plai n tif f s '
Exhibit G
1 1
Plai n tif f s . >
, Exhibit o .
IX. RESPONDENTS' COUNSEL UNLAWFULLY ALLOWED OR,ENCOURACED '
JOHN FINNERAN TO SUBMIT PERJURED TESTIMONY AND Respondents' '
COUNSEL KNOWINGLY CONTINUES TO ?ARADC MR. FINNERAN'S PERJURED STATEMENTS BEFORE THE DOL AS IF THEY WERE TRUE.
Little background is needed to present the perjured testameny of Mr. Finneran. On August .>, 1985 Mr. Hasan met w tn
y. r . Finneran for over eignt hours. Frem the begi!.n;rg of tne meeting until :*s end, Mr. Hasan raised grave and sericus safety concerns d;rectly to Mr. Finneran. One such safety concern was that the stiffness of oipe sucport hardware was net included in the pipe support stiffness when calculating the overall pipe ,
support stiffness sent to Westinghouse for tne Class 1 piping analysis (nereinafter "impt-per stiffness"). Tne concern ever improper st;ffness was one of many safety concerns Mr Hasan constant', brougnt to the attention of Management.
. Althougn Mr.
Hasan first brought his concern of imprcper stiffness to the attention of management prior to the August 19, 1965 meeting with Mr. Finneran, the first time Mr. Hasan told Mr. Finneran of this ccncern cccurred during their August 19, 1985 meeting.
Indeed, Mr. Hasan testified that he not only ta sed tne issue of stiffness during the August 19th meet;:.g, but that he begged and cleaded with Mr. Finneran t- etrieve certain cer.tified pipe support packaga, so Mr- Hasan could pinpoint exactly where and how incorrect stiffness values had been calculated and incorporated into the certified design of the Comanche Peak pipe support system. According to Mr. Hasan's Plai n tif f s '
Exh_ibit G
_ Plai n tif f s '
EU(hlbit G testimony at the nearing: -
.a 0, (By MR. MACK) And what is it that you said (to Mr. Finneran concerning improper stiffness of Class 1 pipe supporte during the August 19th meeting]?
A. I explained to him at length -- at tremendous length that what happened in that pe iod when Rencher told me or told us not to include
. hat stiffness of the hardwares for computing the stiffness of tne Class 1 piping system.
And after li stening to all tnis -- and then I told him that, why don't you recall those particular packages to look for yourself....
Tr. 286, emphasis added.
A. ...I was bringing very, very serious ccncerns to {Mr. Finneran]-right from the morning to the end (cf cur August 19th meeting] and I was literally, virtually, you know, pleading or beccing him that, you have got those packages: please bring it to here: I will show it to you, what was the problems....
Tr. 484, emphasis added.
A. --I pleaded with him that, please recall those packages so that I can show where the mistakes are being made, and he refused to recall those packages.. .
Tr. 389, emphasis added.
t Q. You discussed specific packages with Mr.
! Finneran?
i
~~A. I was telling him to bring what I did discuss, the technical item, like, a stiffness value of Class 1 piping support...~~
I wrote on some of tne packages [tnat) tnose
,~ packages were being done incorrectly, and I
( j was raising ob'ections, at least on two of L
them, and at -- in one package, Mike Chamberlain just came and took away the package from me...
! Plai n tif f s '
L Exhibit G
Plal n t ii s '
EU(hlb i t U f
Q. Excuse me. Did you tell Mr. Finneran to ,
bring in packages or ask him?
A. I requested him to bring certain packages so that I can show it to him what was going on.
O. To tne meeting?
A. Tc tne meeting. Right.
2 , ,0.d ne accede to your request?
A. He d:d not...
Tr. 484-485, empnasis added.
Besides Mr. Hasan and Mr. Finneran, Mr. Hasan*s August 19tn discussion of improper stiffness occurred in the presence c'; Mr.
Rencher and Mr. Westbrook (Mr. Westbrcok was not ca? led as a witness fcr eitner side).
Mr. Renener censistently testified, at his depositicn and at
~
the nearing, that not only did Mr. Hasan raise imprcper stiffness to Mr. Fint.eran during the August 19tn meeting, but that Mr.
Finneran actually teld Mr. Hasan that Stone and Wecster already knew of One imptcper stiffness concern and was about to be corrected and tnat as such Mr. Hasan need not worry accut it any further. According to Mr. Rencher's testimony: "Mr. Finneran and
... assured him that Stone and Webster was asare" ct tne concern and was currently develop ng new " design criteria" to " address" it. Rencher Deposition Transcript, at p. 161.
Mr. Hasan's ccacern over incorrect stiffness values sent to Westin;hcuse was that Westinghouse used the incorrect stiffness values to calculate the actual load each pipe support had been designed to withstand. The Westinghouse-calculated loads were
- 47 _ Plai n tir r s '
Exhibit G
Plai n tif f s '
Exhibit G -
then used on site to certify the design of the Class 1 piping +
system. Hearinc Transcript at pp. 235, 238, 263-264.
The August 19th meeting lasted for ever eight hcurs. At the start of the meeting Mr. Finneran stated to Mr. Hasan that he was going to taxe notes of the meeting and he would ask Mr. Hasan to sign the notes at the conclus:cn. But each time Mr. Hasan would raise a tecnnical issue, Mr. Finneran would not record it in his notes. Mr. Hasan was disturbed by this and at the end of the meeting he refused to sign. One of tne technical concerns Mr.
Hasan raised was improper stiffness. ,
After Mr. Hasan refused to sign, Mr. Firneran askt Mr.
Hasan to leave tne meeting. Mr. Hasan ccmplied and theteafter was called back :nto the meeting room. The only one present at this pcint was Mr. Finneran. At that point in the meeting Mr.
Finneran asked Mr. Hasan to'last any technical inconsistencies ".e Knew of so that Stone and Webster could see to it tnat those matters cculd also be reselved. Mr. Hasan then pulled a list of scme tecnnical ccncerns from his wallet and listed them for Mr.
Finneran. The list was not retained by Mr. Hasan. Mr. Finneran then prepared a second memorandum allegedly listing all of the concerns Mr. Hasan raised to him en August 19th. Mr. Finneran listed exactly ten items; improper stiffness is not included.
The ten inconsistencies are listed below as recorded by Mr.
Finneran:
Phai n tif f s '
- as - '
Exhibit G O
.A Plai n tif f s '
Exhibit G
~~1. Consistency should be achieved regarding the assessment of ;he weld between a baseplate and an embedded plate (plate and shell versus linear).~~
~~2. Plate and shell weld allowable should be listed in the guidelines.~~
~~3. Supports in containment should always use allcwables at 300'.~~
~~4. 2" architectural concrete topping should always be considerec for Hilti embedments.~~
~~5. In evaluation of Richmond Inserts, consideration of both rod and insert interactions should be documented.~~
~~6. Ricnmond Insert Bolt should be assessed for bending as well as shear and tension.~~
~~7. The weight of a constant support should always be censidered in spring support design.~~
~~8. Each calculation sheet shculd be initialed.~~
~~9. Cincned U-bolt supports (class 5 and 6) inside stress problem boundaries should be assessed.~~
~~10. There should be a calculation quali f ying the washer plates on tuce steel supports.~~
A review of these alleged ten inconsistencies demonstrates that the words " stiffness," " Class 1," and " Westinghouse" are not mentioned anywhere in Mr. Finneran's August 19th memo (Cx. 7 and Rx 3].
', Nonetheless, as the record establishes, Mr. Hasan repeatedly raised the issue of incorrect stiffness values of Classs 1 pipe supports to Mr. Finneran during the August 19th meeting. Mr.
Finneran's assertion in his August 19th memo that Mr. Hasan "did not have any concerns which he felt were important to safety at the plant".
49 Plai n tif f s '
ED(hibit G
r'uai n t u r s '
^
Exhibit G .
Mr. Finneran expressly denied that Mr. Hasan raised e stiffness values of the class 1 piping system to him on August 19th,-as the following testimony depicts:
0, Do you know wnetner the subject matter of the stiffness values of the class 1 pipina systems was among tne either (sic) consistencies or concerns or any topic during that meeting (cf August 19th).
A. _N c . don't believe so.
Tr. 21, empnasis added.
Q. ,, did the discussion of those (10) inconsistencies take up the bulk of the seven hours of the { August 19th} meeting?
A. No. The ten' items were -- as said, it was tne-last --vety last part of the meeting, and he related tnem to me, and I wrote them down, and tnat was about it. There wasn't any discussion tnat ! recall between he and I on the items.
Tr.
Q. Fine. And en the second page (of CX 71 you list a series of items --I am sorry. I don't rememter how-ycu characterized them.
A. Incensistencies, I believe.
Q. Inconsistencies.
A. Un-huh.
Q. Were those the only inconsistencies that Mr.
Hasan brouant to your attention-in the course of tnat meeting?
A. Of this [ August 19th) meeting?
Q. Yes, sir.
A. Yes.
Tr. 31-32, emphasis added.
- so _ Plaintif f s' ED(hibit G og
_. Plai n tif i s <
ED(hlbit G A. Mr. Finneran Fer;ured Himself By Not Admitting that Mr Hasan Raised Stiffness Values of Class 1 Pipe Supports Duttnc. the Aucust 19th Meetina The testimony of three witnesses establishes the proposition that Mr. Finneran per;ured himself. In addition to the test meny of Ccmplainant, two adverse and hostile witnesses, Mr. Rencher and Mr. Chamberlain, test;fied under oath that stiffness was raised by Mr. Hasan to Mr. F;nneran on August 19th. This test;meny is set forth celow.
~~1. Depositica testimony of Mr. Rencher In no uncerta'.n ter~s, t;.e depcsition testimeny of Mr.~~
Rencher completely centradicts Mr. Finneran's denial that Mr.
Hasan raised stiffness of the class '
pipe supports as a safety concern during the August 19th meeting. On no less than a dozen separate occasiens Mr. Rencher testified that Mr. Hasan raised a concern over the method of calculating the stiffness values of the class 1 piping system.
Mr. Rencner had absolutely no self interest i n g ving testimony contrary to his boss, Mr. Finneran. Indeed, it is the rare individual who has the strength tc test:fy against his superior.
The deposition testimony of Mr- Rencher is devastating:
Q. [By Mr. Kohnl Did Mr. Hasan...on Aucust 19, 1985 (bring to your attention) the fact tnat stiffness of Class 1 pice support systems did not consider tne st?' ness of tne nardware.
A. (By Mr. Rencher] I believe he mentioned it in that meeting, yes.
Phai n tif f s '
ED(hlbit e 1 9D-w
-- _ ____ __- -_- - - - - - -- ---I
Plai n tif f s '
, , , Exhibit G O. Do you know if anyone followed up on that '
concern?
A. Yes.
Q. Who followed up on it?
A. I believe it would be John Finneran.
O. Did you nave any discussions with Mr.
Finneran acout now to creceed with Mr.
~
Hasan's concern (cVer the fact that incorrect stiffness values had been sent to Westinghouse}?
A. Yes.
Q. And what is the sum and substance of those discussicns?
A. When Mr. Finneran and I talked after that_
time about Stone & Webster developing criteria, we made sure that Mr. Finneran made aware to them that thi9 is an item that needed to be considered in the development of their design criteria.
Rencher Deposition Tr. at 95-96, (emphasis added).
Mr. Rencher's testimony was clear: not only did Mr. Finneran and Mr. Hasan discuss the fact that incorrect stiffness values of Class 1 pipe support system had been sent to Westinghouse in the presence of Mr. Rencher, but that Mr. Finneran and Mr. Rencher continued ciscussing Mr. Hasan's concern after the meeting ended!
On June 2, 1987, the depostion of Mr. Rencher l
recommenced.11/
~~11. In violation of subpoena, Respondents' cousnel ordered Mr.~~
Hencher to walk out of his May 29, 1987 deposition at 3:15 pm, evidently shortly after Respondents first received the letter l
from the NRC to Texas Utilities, dated May 28, 1987 (CX 14).
L Rencher Deposition at 144-145. Respondents' cousnel returned on June 2, 1987 only upon order of tre ALJ. Respondents' conduct l
l went unsantioned.
l L l Plai n tlits >
ED(hibit G
Plal n tif f s
Exhibit G At that time Mr. Rencher further testified: .
Q. (BY MR. KOHN] Mr. Rencher, do you know about tnat Westinghouse letter concerning the stiffness of Class 1 pipe supports?
MR. WOLKOFF: Ob]ection.
A. Calculated stiffnesses of Class 1 pipe suppcrts were sent to Westinghouse.
O. {BY MR. KOHN) All right. And what year were they sent?
A. 1982, 1983, 1984.
Q. And were you aware that tnct list did not consider the stiffness of tne hardware for many of the Class 1 pipe supports contained in that list?
I-RR. WOLKOFF: Objection. You're testifying, Mr. Kchn.
A. No (Mr. Rencher's testimony diverges here frem Mr. Hasan, who testified that he first raised this with Mr. Rencher and others in 1982: Mr. Chamberlain nonetheless tertified at his depositien that management knew of this concern in 1985. See, Chamberlain Depo.
at 96-97).
Q. [BY MR, KOHN] Did Mr. Hasan bring this to your attantion en August 19tn, 1985?
A. I believe he mentioned it (incorrect stiffness values) in the meetinc tnat I participated in with Jonn Finneran and him.
C. Was anything done -- do you know if anything was done to check Mr. Hasan's concerns regarding not calculating stiffness of hardware sent to Westinghcuse?
A. In sum and substance, Mr. Finneran and I discussed the concerns Mr. Hasan raised in tnat meeting [of August 19tnj and assured him tnat Stone & Webster was aware of these concerns so that the Stone & Webster design criteria which was being developed would address his concerns.
Rencher Depo. Tr. at 164-165, emphasis added.
F it n;jf f e *
-.t
~
n
_ - _ _ _ _ _ - _ - _ _ _ _ - _ - _ _ _ _ _ _ _ _ - - . _ _ - _ _ _ _ _ _ _ - _ _ _ _ _ _ _______ _ __ _ _____________________-m_ _ _ _ _ _ _ _ _ - _ - . _ _ _
Plai n tif f s '
Exhibit G .
Later during his deposition, Mr. Rcncher once again i confirmed that Mr. Hasan raised a concern over incorrect stiffness values to Mr. Finneran during their August 19th meeting:
Q. Do you recall Mr. Hasan raising technical disagreements while you were present at the August 19, 1985 meeting?
A. I remember one.
Q. Which one was that?
d.AR, ;u.2 A. . It concerned stiffnesses of Class 1 pipe . ,
~ - - - - "
supports.
Q. Did Mr. Hasan complain that you refused to or did not write any memoranda concerning Mr.
Hasan's problems that he had in the way the stiffness was beino calculated?
A. Beyond the fact that he mentioned it, I don't remember much else of wnat was said about it, spdcifically.
Q. The stiffness of Class 1 pipe supports that you remember Mr. Hasan raising during the August 19 meeting, when did Mr. Hasan first bring that to your attention?
A. I don't recall. I think it was at that
~
{ August 19th) meeting.
Rencher Depo. Tr. at 237-238, emphasis added.
2. Hearina testimony of Mr. Rencher On direct exam, Mr. Rencher's testimony was equally unequivocal: On August 19. 198s, in the presence of Mr. Rencher, Mr. Hasan raised told Mr. Finneran about his concern over the stiffness values sent to Westinghouse. Equally critical, was
- s4 - Plai ntif f s' Exhibit G l
Plai n tif f s '
Exhibit G Mr. Rencher's testimony that not only was the concern raised, but that Mr. Linneran understood the significance of the concern as well.
Q. (BY MR. MACK) In that (August 19th} meeting in your presence, did Mr. Hasan raise a cencern over tne stiffness of Class 1 pipe supports?
A. [BY MR. RENCHER] Yes, he did.
Q. In the presence of Mr. Finneran?
A. Yes.
O. Did the two of them (Messrs. Hasan and
. ; zme.; , .. e. Finneran].- -hold a discussion about that?
, s, .
~~.;,,a.,w ,. . . ,.~~
A. It was discussed in tnat meeting, yes.
Q. And Mr. Fir.neran 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. 'i e s .
Q. And did he express that concern to Mr.
Finneran?
A. Yes, he did.
O. And Mr. Finneran understood the concern?
A. Yes, he did.
Tr. 117-118.
There is no room for doubt that Mr. Finneran's failure to recall certain packages Mr. Hasan brought to his attention in
- ss _ Plai n tif f s '
ED(hibit G
4 Plai n tif f s '
c_ x h.6 i t G crder to verify what he already knew (Mr. Hasan had first identified the problem to management back in 1982) t the calculation of the stiffness values for the entire Class 1 pip;ng system contained gross engineering errcrs. Not only did Mr.
Finneran refuse to recall the packages, he knowingly prepared memcranda falsely stating that Mr. Hasan had absolutely no safety concerns. These memoranda ( R :s 45, 31; CX 7) would become the centerpiece of Respondents' defense to Mr. Hasan's case. Mr.
Rencher ccnfirms the Obvious: Mr. Hasan's concern over Class i stiffness values sent to Westinghouse is not mentioned in Mr.
Finneran's memorandum:
O. (BY MR. MACK] This is Complainant's Exhibit 7, which has been characteri:ed as Mr.
Finneran's list of inconsistencies arising out of the August 19 meeting. Is the prcblem you mentioned that came up at that meeting about the calculations for stiffness of certain Class 1 U-belts on tne list?
A. Let me check. (Perusing document.)
O. Let me get my phrase right -- stiffness values of the hardware for NPS Class 1 pipe support or stiffness of Class i pipe support.
Is that on the list?
A. I don't see it here. Nc.
Tr. 144.
Respondents' examination of Mr. Rencher plainly demonstrates the total lack of cencern for the truth. Respondents' counsel asked the witness excessively leading questions with false premises in an a'ttempt to get Mr. Bencher to contradict both his hearing and deposition testimony. According to the transcript, Plai n t.. ,ifI S '
Exhibit G
4 Plai n tif f s '
Exhibit G Mr. Wolkoff asked Mr. Rencher:
O. Do you remember just reading about it
{ stiffness of Class 1 pipe supports) in Mr.
Finneran's notes?
A. I have read about it in his notes. Yes.
Tr. 145.
The answer and question are perplexing. What notes did Mr.
Wolkoff refer to? Unequivocally, no document of any kind was ever identified in discovery er during the hearing. Rather, according to to the answer to Complainant's Interrogatory 11, no such documents exist In effect, either the August 19th notes tendered by Mr. Finneran and counsel are forgeries or Respondents' ccunsel asked 1.eading questions based on made up testimony.
Mr. Wolkoff's bizarre examination cf Mr. Rencher continues with the following:
O. Stiffness of Class 1 pipe supports, was that an issue that had been (known to (sic)) :ne NRC, do you know?
A. No, it had not.
Q. Was it an issue, however, that nad been discussed'amongst management?
A. Yes.
Q. So management was already aware of it before Mr. Hasan raised it.
A. ...Yes.
Tr. 145.
The questions by Mr. Wolkof f and answers by Mr. Rencher are nothing less than shocking. Respondents' own counsel has Plai n tif f s '
' Exhibit G
Plai n tif f s -
Ehth!bi G elicited from its own witness that Mr. Hasan's concern of ,
stiffness values of Class 1 pipe supports sent to Westinghouse had not-been known to the NRC when Mr. Hasan raised it to Mr.
~
Finneran on August 19, 1985. Mr. Rencher's further admission ,
that management knew of the condition prior to the August 19th meeting corroborates Mr. Hasan's testimony that he had continually blown the whistle to management about this concern 3 prior to the August 19th meeting. Tnere is no room for doubt that Mr. Finneran in fact failed to recall certain packages that
~~Mr. Hasan-pleaded he recall to allow him to identify to Mr.~~
Finneran how the errors in calculating the stiffness of the Class
~
1 pipe supports occured.
-Ne t only did Mr. Finneran refuse to recall the packages, he knowingly prepared and submitted into evidence memoranda hr krew to contain' absolute false statements to the effect that Mr. Hasar had no_ safety concerns.- These memcranda (RX 45, RX 31) would also become_the centerpiece of Respondents' attempt to deceive the_NRC (via answers to interrogatory questions posed by the intervenor CASE) as Lell as the 00L through the submission cf false testimony by Mr. Finneran.
~~3. Decosition testimony of Mr. Chamberlain 4~~
Mr.' Chamberlain's deposition testimony further establishes
-that Mr. Hasan raised stiffness of class 1 pipe supports to Mr.
Finneran on August 19th. .
Plai ntif f s -
Exhibit G
Plai n tif f s '
.- EDchibit G Q. [BY MR. KOHN) Well, on August 19,. . .
stiffness was raised in Mr. Hasan's last -
conversation with him; is that correct?
A. I believe it was one of the items that he discussed with Mr. Finneran in the exit ;
interview.
Q. [BY RR. KOHN) Okay, on August 19, 1985, you discussed and Mr. Finneran discussed incorrect stiffness values on Class 1 piping stress analysis with Mr. Hasan.
A. ...I discussed it with Mr. Finneran after he talked with Mr. Hasan in the exit interview (when] he asked me about some of the items that Hasan had brought up...
Chamberlain Deposition. Tr. at 236, 244-245, (emphasis added).
B. Respcndents ' overed-up Mr. Hasan's Concern About Incorrect Stiffness Vaaues Having Been Sent to Westinghouse Since
-1982, and Respondents' Counsel Suborned Mr. Finneran's Perjurcus Testimony By Allowing Him to Deny Under Oath that Mr. Hasan Had Ever Raised Incorrect Stiffness Va}ues to Mr. Finneran On Aucust 19, 1985 Mr. Finneran (and others) engaged in an active cover-up of Mr. Hasan's concern over the fact that incorrect stiffness values had been sent to Westinghouse. Tr.17-118, 148-149, 235, J33, 2f3-264. Respondents have been covering up this concern of Mr.
Lasan's since 1982, when Mr. Hasa.n raised tne coricern with Mr.
Rencher, and thereafter when ne raised the concern to Messrs.
Hem'rajani and Chamberlain. Tr. 264-266. To be sure, wnen SWEC began its requalification effort of the Class 1 piping system, they also used the Westinghouse analysis.
Plai n tif f s '
EU(hibit G
"' Plai ntif f s' Exhibit G If tne truth was known about the incorrect stiffness values
~~t the time SWEC beg.tn its requalification, it would have been apparent to all concerneu, including the NRC and the ASLB, that ,~~
the schedule SWEC and Texas Utilities submitted to its shareholders, the SI B and the NRC were in fact fraudulent and impossible. Although Respondents' concede in their reply brief }
that Stone & Webster's " goals weie nigh: to develop within Seven months a single, uniform set of pipe support criteria...to r
requalify the pipe support work...and to conclude all remaining pipe support work," Respondents' Brief in Support of the RD&O, at p.12, what they cmmit is that their goals were impossible and that Mr. Hasan knew it. Is it possible to conceive of any greater motive to discriminate against Mr. Hasan than nis knowlege Over the fact that SWEC's initial requalification schedule was fraudulent?
Indeed, Respondents did-everything conceivable to disuade Mr. Hasan-from raising his concerne to the NRC while he was employed en site. To-stop him_trom going after ne 2 eft, Mr.
Finneran falsely asurred Mr. Hasan that all of-his= concerns, and in particular his concern over 17 correct stiffness values, were already factored into SWEC requalification plan. Mr. Finneran repsatedly assured Mr. .Hasan that there was no reason to show him
-where the errors had been made.
Respondents felt secute that their secret would remain undetected once Mr. Hasan was removed f rom the site, particularly after Mr. Hasan was asked to write a memolto NPS about the status of' his concerns at Comanche Peak. RX 46. Indeed, as RX 46
- so - Plai n tif f s '
Exhibit G
Plai n tif f s '
-- Exhibit G .
states, Mr. Hasan explained to Respondents that "it must be pointed out that.any technical items, discucsed below, are NO3 MEANINGLESS as (Texas Utilities) senior representative John P:nneran told me on August 19, 1985 " Stone & Weaster Engineering Ccrporation shall do everything from tne begining!" RX 46 at p. ,
. (empnasis and capitalization in original).
Unfortunately for Respondents, Mr. Hasan chose not to relieve Mr. Finneran, and on January 10th and 30th, 1986, after contacting them back in August, 1985 (CX 15), Mr. Hasan was finally able to-present to the NRC his concern over incorrect t
stiffness values (concern No. 26), as well as the 64 other concerns listed in the NRC 's May 28. 1987 letter to Texas Utilities. CX 14..
'The significance of Mr. Hasan's disclosure over incorrect stiffness values sent to Westinghouse cannot be overlooked.
Under 10 CFR 50.55(e) Texas Utilities had a legal duty to notify the NRC of the violation the moment they learned of it. The date tne violation was first detected and reported to the NRC is documented pursuant to-established NRC regulation. The date that >
Respondents'first notified the NRC of the incorrect stiffness-values undeniably occured on May 28, 1986 via letter from Texas.
Utilities executive-vice president, Mr. Counsil.
This letter states:12/
12. This letter was first brought to the ALJ's attention as an exhibit to Complainant's Second Motion for Default Judgment / Disqualification, filed on June 16, 1987. .
Plai n tif f s '
Exhibit G 4 -
p . . . . - . -
l Plai n tif f s -
.. Exhibit O On'Actil-29, 1986, we verbally notifi,ed your Mr, T.F. Westerman.of a def .clency involving the use lof incorrect p1_pe support stiffness values in th,e
= Unit i Clas s 1 pipe s tiegs, a na lys i s , This=is an
~~interi a report i of^ a potentially repor table itaa under the provisions of 10CFR50.5S(e). . .~~
p Westinghouse is reanaly:Ing these-stress problems ,
and "tssuing revised pipe. support-loads to SWEC for reulew. .
. SWEC nas not yet started ~
to assess the^
existinc succorts for adecuaev'due -. to [ E.--d~~~~
~~ncreases.-4 .~~
On October 17, 1986, Texas Utilities issued its finna g.
"'N assessment of M:, Hassn's concern over the use of incorrect stiffness values sent to Westinghouse.- It states:13/
On April.29, 1986, we verbally notified your Mr.
T.F.' Westerman of a deficiency involving the use L of incorrect pipe support stiffness values iv. the Unit 1 Class 1 pipe stress analyses. . .We are reporting this iesue under the provisions of 10 CFR 50.55(e) and the required infcrmation fcllows.
DESCR!PTION -
As .i.dentified durinaort, tne CPSES
. cine se cort incorrect sti news values Lecualification were used in the Unit efr.- 1 Class 1 piping stress analyses.
Review of.the' ongoing requalification program has indicated that_approximately 30% of the existinc nice sucocres are overstressec or recuire modification crimarily due to lead increases... As e result of tnese condfilon's7~a 1 s. tress prcolems '
are currently schedu2ed for reanalysis...
SAFETY IMPLICATIONS In the event'the deficiencv had r(mained undetected, the intecrity of the Class 1 oicino-and succorta could-not be assured durinc no'rmal
' ~~
ocerating or accident conditions 13..See Footnote 12, suora.
l l 13 tai n tif f s
~~Exhibit G~~
_p= ,
p ,
Exhibit G This- letter confirms that Mr. Counsil of Texas Utilites allegedly did not know of the incorrect stiffness values untii after SWEC's requalification effort commenced. The utilties' highest ranking officer for nuclear matters unequivocally states that the " normal" operation of the nuclear plant was in ]ecpardy had Mr. Hasan's concern remained " undetected."
Mr. Finneran's failure to disclose Mr. Hasan's concern in nis August 19th memoranda and in testimony was not because he dic not understand Mr. Hasan's concern or that he did not perceive its significance -- indeed Mr. Finneran has a masters degree in engineering and is the Utility's chief pipe support engineer on site. Mr. Finneran's false testimony resulted simply because the Utility wanted to cover-up Mr. Hasan's safety concerns. Mr.
Finneran sent Mr. Hasan packing, telling him he knew about the concern, that SWEC knew about it and that he should not worry becasue his concern was already mcot. He then prepared memoranda stating that Mr. Hasan had not raised a single safety concern and that he gave Mr. Hasan a copy of :ne memcranda (which he did not). This was a premeditated act en the part of Texas Utilities to ecier-up safety concerns at the site. :ndeed, Mr. Hasan's
n

cern over the use of incorrect stiffness values was not repcrted to the NRC until April 29, 1986, three months after Mr.
Hasan-provided the.NRC with explicit testimony on this issue.
'See CX 14,-Concern No. 2 6 .-
Beyond a shadow of a doubt, on August 19, 1985, Mr. Hasan
" begged" and " pleaded" with Mr. Finneran to correct the stiffness Plai n tlf f S
~~Exhibit G~~
Plai n tif f s '
. Exhibit G values sent to Westinghouse. In this regard, Mr. Hasan pleaded with Mr. Finneran to retrieve certain pipe support packages so that Mr. Hasan eculd personally point ou* to Mr. Finneran during the August 19th meeting how the incorrect stiffness values had been sent to Westingnouse. At that point in the meeting, Mr.
Finneran knowingly and purposefully misled Mr. ilasan with false statements when he told Mr. Hasan that the incorrect stiffness values had alrecdy been identified to SWEC and as such his disclosure was entirely moot. The obvious antent of Mr.
Finneran's statements was to detail Mr. Hasan from further pursuing this concern with the NRC or CASE.
Clearly, the creation of the August 19th memoranda constitute premeditated acts en the part of Texas Ctllities management in an engcing cover-up of Mr. Hasan's concern over tne use of false stiffness values during the requalification effort, o
Indeed, once Mr. Hasan was banished from the site, Texas Utilities was once again free to use the false stiffness values during SWEC's effort to requalify the Class 1 pipe support des:gn of the Comanche Peak plant.
Respondents' counsel knowingly attempted to suborn perjury wnen Mr. Wolkoff posed the fo.11cwtng leading quest:cns to Mr.
Rencher.
Q. ...I take it since you don't recollect being there when he raised it (stlffness of Class 1 pipe supports), you don't knew what Mr. Hasan was talking about when he raiaed the point.
A. That is correct.
Tr.
P'lai n tif f s '
cxh.io.i t G r*
Plai ntif f s' Exhibit G This question came after Mr. Rencher had testified that not only did Mr. Hasan raise the issue to Mr. Finneran, but that Mr.
r;nneran understocd it and that they had discussed it ever after Mr. Hasan left the meeting. Tr. 117-118.
On re-direct, wnen Complainant's ccunsel attempted to estaclish :nat Mr. Rencher's depcsition testimony was consistent with his earlier testimony, namely tna Mr. Hasan raised tne issue of stiffness during tne August 19th meeting, Mr. Wolkcff kncwingly attempted to mislead the ccurt wnen he stated:
MR. WOLKOFF: Objection, Your Honor. (Mr.
Rencher's testimony on crcss) is not nconsistent with his testimony (at his deposition'.
JUDGE LINDERAN: The record will speak for 1:self regarding consistency.
e..,. 3 ,. ,9.
!ndeed, the ecord establishes tnat the only time Mr.
Rencher stre .d frcm the truth was when his own counsel, Mr.
Wolkoff, asked bizarre questions of the witness that have no 4
casis in fact. The record estaclishes that Mr. Wolkoff attempts to subern perjured statements from Mr. Rencher when he tcck the witness stand. Given the pressure Mr. Rencher had to overcome to testify against his superior and to testify trutnfull> when his employer's attorneys attempted to get Mr. Rencher to change nis story before he entered the citness bcx, it is notning less enan astounding.
- es - Plai n tif f s' U Ns.s .itlU k L g i l
Plal n tif f s -
C ..
"XhlOlt G Mr.
Respondents assert that the ALJ "com.mented on . . .
Hasan's total lack of credibility during his day-long testimony.
6." See, Brief of Respondents Recommended Decision and Order at at 29. 'ihile the ALJ did make limited credibility findings in tne RD&O none appeared'on page 6, and the ALJ never used the term "tetal lack of credibility" to describe Mr. Hasan's testimony.
Respcndents' misenaracterization of the RD&O is more than zealcus advocacy -- it is dcwnright malicious. Complainant regards Respondents' misrepresentation as sanctionable conduct under TRCP Rule 11.
Tne substance of Respondents' request for attorneys fees and costs is :tself frivolous as Respondents' ccunsel could include net even a si.ngle legal authority to support his request.
Complainant will not waste the Secretary of Labor's time addressing wnat. amounts to Respondents' ' desire to be compensated for responding to Ccmplainant's discovery requests.
CONCLUSION r
It is disturbing that Respondents
counsel would engage in subcrnation of perjury and other sanctionable behavior in order to prevail before Administrative Law Judge Lindeman. The fact that some of the highest ranking officials at the Comanche Peak facility felt it necessary to perjure themselves rather than admit-to the concerns Mr. Hasan had brought to their attention Plain tif f s' Exhibit G
Plaintif f s' Exhibit G demonstatates fear en the part of Respondents, let alone mere knowlege, that Mr. Hasan had raised safety concerns of immense proportion.
Indeed, Mr. Hasan's disclosures stood in the way of certifying the pipe support system of the Comanche Peak facil;ty.
Mr. Hasan was blacklisted from tne site in order to assure the implementation of a patently false and impossible requalification schedule cf the Comanche Peak pipe support system. Mr. Pasan was more than an interna'. .nistleblower, he was a engineer whose career was seriously damaged simply because he refused to sign-off en imprcper design documents.
Per all (Ea I
cp reasons set forth above, the Secretary of s-Lacc must rule in favor cf Mr. Hasan.
Respectfully Submitted,
,b s ~-
-ffJW_ KOriN , ESQ.
MICMAEL D.
STEPHEN M. KOHN, ESO.
Government Accountability Project 25 E Street, N.W. --
Suite 700 Washington, D.C. 20001 (202) 347-0460 Attorneys for Complainant On Brief:
David K. Colapinto April 18, 1988
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CERTIFICATE OF SERVICE '
I herecy certify that a- ccpy of tne af eregoing reply brief was hand-delivered en April 18, 1983 to:
Secretary cf Labor Of fice of Administrative Appeals U.S. Department of Labor 200' Constitution Ave., N.W.
Washington, D.C. 20210 r
and ! certify that a copy was sent en April 18, 1988 by first
~
-class mail, pestage prepaid, tc:
Mr. Ha:vey J. Wolkof f , Esq.
Ms. Katrina Weinig, Esq.
Repes and Gray 225 Franklin Street Boston, MA :02110 Y
e
% 'V ..
f j__ N" T__, 's
[ C _., . /
1 WS - em
~g - y9 ---
"w---e~aw,- r r-t r e + y -;- m-
Na U2gggg;f7g, 214/9L6-9W M' ib i t I i
(CITIZENS ASSN.FOR SOUND ENERGY) T' * ^
w":. IU H~ g~ :Q July 6, 1987 -
Dr. Eenneth A. McCollom Administrative Judge Peter S. Bloch 1107 West Knapp S :cet U. S. Nuclear Regulatory Cc :ission Stillwate r , Oklaheca 74075 Atomic Safety & Licensing 3 card Washinston, D. C. 20555 Dr. Walter H. Jordan i 351 V. Cuter Drive I Oak FJidge, Tennessee 37530
{
~~Dear Administrative Judges:~~
l
~~Subject:~~
In the Matter of al. l Texas Utilities Electric Cc=pany, et.
Application for an Operating License Docke t Nos. 50-445 and 50-446 - Q_
an:i Constrcction Percit Arend=ent Docket Mo. SC-445-C?A Cccanche Peak Steam Electric Stati:n Units 1 and 2 Notificatien of Potentially Significant Infe: ation This is to infor: the scarc of potentially significant infor aticn in beth the censtruction pettit proceedings.
the operating license proceecings and several points en CA3E's 7/6/S7 As we have stated to Applicants at laterrogatories to "Consolidatec Supple:entary Response to Applicants'
! ttervenors" (Set No. 1G87-1) and Motion f or(and following a Prctective ans cther Orde r , we expect related
.to rely upon information free the response to Mr. Crimes' 5/2E/57
-inf or:ation, probably including Applicants' our cases in both le tter, although we have not yet reviewed it) to =upport preceecings:
the operating license proceedings and the construction permit "5/28/87 letter f rc= Christopher 1. Grimes , Directer, to NRC Cc:anche Applicants'
?eak Project Division, Office of Special Projects, Executive Vice President, Willia: C. Counsil, under Subj ect of:
The cencerns Allegations of Design and Construction Deficiencies. letter were identified as listed in the Enclosure to that 5/08/87 Cccanche Feak being.those of S. M. A. Hasan, a for er engineer at (see listing following regarding 6/22/87 and 6/23/87 Hasan DOL hearings and related proceedings)."
heef90Ei4.C h beyoyoa s, I i rDR AUCCK 05000445 ~
C PDR b'l3I O IIf f $ *
-6
[ $ ]!:lk(j l
~~i Plai ntif f s-a y~~
l- _
Exhibit I l
1:
hould be noted that, the concerns were idetitified as !
being > ~ . e of Mr. Hasan in the DOL proceedings (not in the 5/28/87 ...wer f rom Mr. Crimes).
"6/20/67 and 6/03/87 Hasan DOL hearings and reisted proceedings.
CASE also expents that ve vill rely upon some inforto tion f rom the ICL proceedings of S. H. A. Hasan (hearings regarding which v.erein held June 2; r,nd 23, 1987, of
- Alf red Lindeman, Adehiatrative Law Jtuge, U. S.
86-EEA-14, S. H. Department A. Hasan, Labor, in the catter of Case No Ccaplainant , v. Nuclear Power Services , Inc. , Stone and Vebster Engineering Co., Inc. , and Texas Utilit;es Electric Co. , Inc. , i f.espondents)."Wa do not yet know exactly what infor.ation vill t e relied upon. CASE does, however, consider some of the testimony in. those proceedings of such potential significance to both the operating i license proceedings and the construction pemit proceedings that I Applicants shuld voluntarily provide copies of all pleadings, '
documents, et:., in that case to the Licensing and CpA Boards.
Applicants' f ailure to do so (and, indeed, the.vsry f act of Applicants f ailure_to have, already advised the Board regarding ,
sece of .the r.atte_r sjnvolved) is considered byl CASE to be further proof of CASE's cententions'in th,e 0.L. and the CPA proceedings." '
Ac ve hue stated to Applicants, CASE believes that Applicants should the DOL have ;
~
already inforced the Board regarding some of the infomation f ro tievness proceedings. Perhaps most it::nediately notable is Applicants' regarding the fact that, although Applicants obvicusly k.ncv that Stone &
Vebster had inaded turned righc arcund and rehired many of' the st ee et.gineering personnel who had f ureeriv verked f or ITT Crinne.11, NFS1, G l~
4. Hill, and TV, it was not until b/8/67 (coincidentally O ) shortly before their hr. Hasan's DOL hearing) that Applicants finally chose to supplement 6/8/87 responses to CASE's 6/30/86 interrogat.ories (see Applicants' for Supplemental Eesponses to CASE's 6/30/pb Interrogatories and- Request Docueents, supplementary response to' interrogatory nu Hill, IU Crinnell, NPSI, and Texas Utilities who vere tehiree by Stone L Webster gngineering Corporation). of ,
~
the discussion.durinE the,B/18/86 Frehearing Conf erence (m transcript 02 genera '
8/18/*6 Prehearing Conference, Tr. pages 24493 page through 24498), 24: where Applicants had -- j especially Hs. Billie C r3e's 'cocnents atto ignore to be candid with the Board an opportunity which they chose regarding r.his important catter.
CASE President Juanita Ellis attended the two days of Mr. HaSan's r h in CCL hearings in Dallas on June 22 and D,1987, as part of her resea c - ing
- tiling her 7/6/87 Supplementary
~~Response~~
Based on what in transpired the CPA and in the_
during thoseOperat license proceedings as well. some proceedings 'and erlated filings and doctments, etc., CASE believes that of the matters raised are 4,._cgrg.cee_1cpor_tance, toCASE bott, also.
the ope -
rating believes license proceedings and construction periWCVoceedi gs. dings, that Applicants shoul_d cov voluntarily provide copies ..of,,all plea 2
l Plai n tif f s '
Exh! bit 1 .
..-m,.__.,.,_...i.._., ~,~,.. _.,._-,m,m.,m, , , , , , , _ _ . , _ , , . . , _ , . ._ _ . . _ . , , . , , . ~ , . . . . -
Plaintif ts' ]
l . /
i Exhibit l l
documents, etc. , in that case to the 1.icensing and CpA Boards (which are, of course, cceposed of the same three cembers).
If Applicants do not core formal means; it voluntarily do so CASE vill seek such action throu should not be CAST's burden to hase to cantinue to go to the expense in tisc, noney, and person resources to keep the Board informed and supply 4 documents regarding catters such as this which are so obviously arecovered to keepby the the Beard.'s cf t-repeated and nuterous Orders that ApplicantJ ~'
Bearf _igf orced_of potentially significant information.
\
of this encite l There is also, of course, another even more disturbing aspect '
rat t e r . The Board was advised by Ms. Garde at the B/18/86 preheari2g Conference - over ten conths ago - that she had reason to believe that Stone 6 '*ebster hsd rehired many of the sazc enginecting personnel who had formerly worked at Cooanche peak. /gplicants' attorneys and personnel who of Applicants' new managemer.t were in the audience (who included scee personnel) sat right t' cre and said that not.hing tiec that-the even issue though raised cany byofHs. them Carde obviously was tnie.
had to have known at!!ce can CASE
~
(or the Board or anybody else, f or that be expected to trust and rely upon those individuals - for anythingt Respectfully cubtitted.
CASE (Citirens Association for Sound Energy) dsAlm M'
/ pro.)JuanicaEllis
'tresident cc: Service List 2
Plai n tif f s -
Exhibit i
,-,,.-n,-,-- , - , - , , , , , , , _-~,,.,--.n-, -.. , e,<.
Dlai ntif f s
~~XWt !~~
. a l./ct.6 c!.1.6
' ' C r
(CITIZENS ASSN.FOR SOUND ENERGY) U al 10 f t q ,
July 6,1967 1 i
~~c. I l~~
Dr. Yenneth A. Mecollom Adcinistrative Judge reter E. Bloch 1107 We st Knapp street V. S. t'uclear T.egulatory Coc. ission Stillwater , Cklahema 74075 Atomic Safety & Licensing Board Vashd.ngten, D. C. 10555 Dt Valter H. Jordan 881 V. Cuter Drive Oak T.idge , Tennessee 27630 tear Ad:inistrative Judges:
~~Subject:~~
In the Matter of al.
Texas 'Jtilities Electric Ceepany, et.
Applicatien fcr an Operating Licente Occ he t Ncs.10-445 and 50-446 CG cnd C:nstruction Fer:n A end:ent Occket No. !C-445-CyA Cccanche Tesk Stea. Electric stati n Units 1 and Notification of Fotentially Significant Infer atten _
This is to infers the Ecard of retentially and thesignificznt const ruction inf peo rmation in te t t, r it procecctngs.
the operacing license pr:ceedings several points in CASE's 7/6/$7 As we have stated to Applicants atto Applicants' Interrogatories to "Consolidatec Supple:entary F,esponse Inte rverars" (Se t No. 1987-1)the andf ollcwing Motien for (anda Protective any other Order, related wo ex n to rely upon inf or=ation f rc: response to Mr. Crir.es* $/;S/E7 infor:ation, probablyhave including Applicants' not yet reviewed tt) to support our cases in both letter, although va p cceedings:
the operating license preceedings and the construction permit "5/08/87 letter f ree Christopher 1. Crices, Director, NF.C Cc:anche to Applicants' Teak Project Division, Office of Special Projects, of:
Executive Vice President, Willia = 0. Counsil, under Subject The concerns Allegations of Design and Construct;cn Deficiencies.
itsted in the Enclosure Hasan, to that 3/28/57 a f orcer engineer letter at were Comancheidentified Peak as being those of S. M. A.(see listing follouing regarding 6/22/87 and 6/23/8 hearings and related proceedings)."
wa.0707240SP'dYDYOB%ADOCK 05000445 1 't PDR -
C PDR m nt..fs'
_ . u.
a
= x c .a l Mv1/t/dZ~UT
- - _ - - - _ - - _- _ _ _ _ _ _ _ _ -~ _ . - _ _ - - - __ _ _ _ _ _
F)lal n tif f s '
bX h!. .Cli 8
' It shculd be noted that the concerns were identified in the as being those cf Mr. lusan in the D3L proceedings (not 5/:S/87 letter f rem Mr. Grices).
"6/2;/87 and 6/23/S7 hasan DOL hearings and related proceedings.
CASE also expects that ve vill rely upon sete inf ormation f rom the COL proceedings of S. M. A. Uavan (hearings regarding which verein D held June 22 and 23, 1967, of Alf red Lindecan, Administrative Law Judge , U. S.S. M.Departteet A. Hasan, Labor, in the catter of Case No. 86-CP.A-24, Ceeplainant,
~~v. Nuclear powe r Servtces , Inc. , Stone and Vebs Inc.,~~
te r Engineering Co. , Inc. , and Texas Utilities Electric Co.,
F.espondents).
"We do not yet )=ow exactly what inf or ation vill be relied upon. CASE dees, however, consider some of the testiceny in these crerating proceedings of such potential significance to both the license preccedings and the constructicn permit proceedings that Applicants should voluntarily provide copies of all picadings, documents, etc., in that case to the Licensing and CPA teardt.
Applicants' f ailure to do so (and, indeed , the _vg ry f act of Applicants' f ailu te .to have already advised the Board regarding sete of the tatt e rs_ in_volved) is cencidered bythe . CASE te be further CPA prcceedings."
proof cf CASE's cententicus' in the C.L. and CASE believes that Applicants shculd have As we have stated to Applicants, L aircady informed the Ecard regarding sete of the information f ree the SC pecceedings. Perhaps most immediately nc' cble is Applicants'that that, although Applicants obviously kncv slevnest Stone L re gardit.g the fact Vebster had inaced turned right areund and rehired f or 1TTcany of the sate Crinnell, NPS!, Gibbs engineering personnel who had f ormerly verked Hill, and 70, it was not until 6/8/67 (coincidenra117 (?) chartly bef ore Mr. Hasan's DCL hearing) that Applicants finally chose to supplement the r t, / 5 / 9 7 responses to CASg's 6/30/86 interrogataries (see Apolicants' and Fequest f:r Suppletental F.esponses so CASE's 6/3C/06 Interrogatories to inter regatory nu Ler 22, attachinc tocu:ents, supple:entary response etc., of f o rme r ceple yee s of Gibro L in!c reation requested regarding na es , ty Stenc &
Hill,1TT Crinnell, NPS1, and Texas This Utilities who were reha rec is even core egret:out in light ;f Vetster Engineering Corporation). ( c e e, t r a n s c r i p t 0!
discussion during the,8 /18 /86 p rehearing Conf e rence the Tr. pages 24493 threugh 241G generally, cnd S/lS/Sb Prehearing Conf erence , at page 24498), where Arr.; cants hac es p e c ially Ms . Sillie Cat'de 's ' comment to ignore s to be candid with tne Ecard an opportunity which they chose regarding this ictortant catter.
Hasan's tcL Juanita Ellis attended the two days of Mr.
CASE President 1987, as part of her researth in hearings in Dallas on June 22 and 23, crerat;ng filing her 7 /6/87 SupplementaryBased Response in the CPA and in on what transpired during these that sacethe license proceedings as vell.
proceedings and related filings and docueents, etc. , CASEoperarint believes of the catters raised are of_cxtrece_icpgr.tance to both the piiceedings. CASE also $elieves license proceedings and constructic'n'FErtEt that Applicants should-- nov voluntarily provide -- _ -copi.es
. ,of all pleadings ,
I Plaintif f s' .
c X DIO..,ltl i
7----
'" Plai n til t s ' l I '
Exhibit I l I
l
dccuments, etc. , in that case to the 1.icensing and CpA Boards If Applicants do (which not are , of l ccurse, cecposed of the sate three cembers). f ormal ocans; it i voluntarily do so, CASE vill seek such action through core chould net be CASE't. burden to have to continue to go to the expense in time, cency, and persen resources to keep the Board inf orced and supply docu:ents regarding catters ruch as this which are so ebviously covered by the Board's ef t-re;eated end nucercun orders that Applicants are to keep the ~~
Ecard inforced c_f potentially significant inf ormation.
of thAs entire
~here is aise, of ceu'se, another even more distutbing aspect The Icard vas advised by Ms. uarde at the 8/18/&6 prehearing Conference - over ten conths age - that she had t. axon to believe that catter.
Stene & '.iebster had rehired many of the sc e engineering personnel who had f ormerly worked at Ccennche l'est. Applicantc' attorneys and personnel who vere in the gudience (who included scte of Applicants' new tr - agement personnel) sat right there and that said nothing - evan though many of them time that the issue raised by Ms. Carde obvicusly had to have k:icen at was true.
Ilow can CASE (cr the Ioard or anybcdy else, f or that c:atter) ncv be expected to trust and rely upon those individuals - f or anything?
Respectfully cuttitted, CASE (Citi: ens Arscciation f or Sout.d Energy)
[4 ,- Sw h as.) deanus tuu
'tresident cc: 1e rvin Eist i
2 Plal n tif f s
~~t.x hib i t I~~
O PTUVIL 3D AND CONE}pE{TIAL f rto dtlffs' i SETTLEMENT AGREEMENT Dfir' DEEN CASE, Exhibit J '
MRS. JUAMTA ELLIS AND TEXAS UTILTITES ELECTRIC COMPANY, RECTTAL9 This Settleraent Agreement is made sind entered into this Sth day of June,1998, cetween Texas Utilities Electric Company, separately and ret:ng as the Project hnager under the Joint Ownersnip Agreement on behalf of all the owners of CPSES (hereiaalter
~
collectively referred to as *TU Electrie"), Cit:: ens Association for Sound Energy aw 'tts.
Juanita El!!s (her2inaf ter the use of the term " CASE" shall refer to Citizens Assocation for Sound Energy and Mrs. Juanita Ellis in her crpacity as President of CASE. Provisions of this Agreement specifying Y 's. Juanita Ellis ih any capaelty other than as Pre,tdert of CASE shall refer specifienlly to Mrs. Juanita Ellis):
4' HEP.EAS, TU Electric and Citizens Ar.sociation fer Sound Ener;;y (" CASE") are parties to a number of proceedings before the Nuclear Regulatory Ccmraission in connection with the licensing of Comanche Peak Steam Electric Station Ur.;*J l and %
("C PS ES") as mere fully described in paragraph 1.1 of Article I cf this Settlement Agreement (" Agreement"); and WHEREAS, TU Electric and CASE have decided that these proceedingt sneuld oc resalved in acecrdance with the terms of this Agreement; THEREFORE, in consideration of these premises, the parties, intending to be legauy bound, agree as follow:n OPERATIVE PROVISIONS I, Resolution of All NRC Proceedings
- L t. TU Eltetric and CASE agree to execute and file with the Nuclear Regulatory Commission ("NRC") a Joint Stipulation and Joint Motion for Dismisal of NRC Procett!r.gs, speelfically Docket Nes. 50-445 OL, 50-446 OL and 50-445 CPA, in a form l
! ' Plai n tif f s '
ExhibitM
ss set forth in Extubits and B attached to this Agreen ' t, the terms ofgeq g incorporated herein by reference for au pur xscs of this Agreement, Exhibit J 1.2. TU Electric and CASE agree to prosecute diligently, in accordance with their respective enarters, such Joint Stipulation and Joint \1otion for Dismissal end to provide any additional infermation, file any additional pleadings, make suen appearances, and provide such support before the NRC and any other body as may be neecssary to effectuate the dismissal of the above-referenced NRC proceedings. In fulfilling their respective ocllgations under this paragraph, Mrs. Juanita Euts or other representatives of CASE wiu not be required to undertake travel away from Dallas, Texas.
1.3. Upon the effective date of the Joint Stipulation, CASE and Mrs. Juanita Enis agree that they will not contest before the NRC, any other regulatory body or any ecurt the insuance of any operating..ijge_nse_er_anyarnendmenta to.the construction perinit for CPSES Units I snd 2.,includLng_theluuance_ol.sny eciated licenses or permits, except as expressly provided in the Joint Stipulation. This provisten does not apply to any_
proceedings before the Texas Public utilities Commission nor, notwithstanding Paragraons
~ ' ' '
5.1 and 5.2, does it apply,,to_any_ amendments to full power CPSES opcra' ting lleerecs. Tnts agreement is based.upon.the_understincing.and. trust by CASE inat TU Electric has agreed to complete and carry through on its commitments as provided in the Joint Stipulation to ensure that -the design and construction of CPSES Units 1 and : are sceomplished correctly in a manner specified by TU Electric and approved by the NRC Staff.
~~11. Commitments of TU Clectric 0.1. -TU Electric agrees to comply with tne Joint Stipulation when effective.~~
2.0. TU Electric agrees that William G. Counsil, Executive Vice President, Nuclear i Engineering and Operations, will continue to serve as the primary point of contact for CASE within TU Electric for the ' period that a representative of CASE serves on the Operations Review Committee pursuant to the Joint Stipulation. TU Elcetric will take no action to prevent or lessen Mr. Counsil's accessibility to CASE while he is employed by P t .a n tif f S '
inhibit J
?
. TU uectric. Nor shat U Electric terminate Mr. Coun s employment foe reasons >.
incorutstent with this paragraph 2.2. In the event Mr. Ccunstl cec:;es to be employed by TV Electric, CASE may designate any then-current TU E!cetric nuclear officer 1! as the v
% 'l primary point of contact and may change such contact at CA.iE's discretion. D .D ,
i.J. In reccgnition of CASE's concerns about workets formerly employed in ,
CO i eennection with the construction of the CPSES, who may nave employment disertm:nat:en t
claims agsinst TU Electrie er a contractor thereof. whether pending er anticipatc% at the time Of the signing of this Agreement, er who have assisted CASE in the CPSES licensing i
proceeding, TU Electric has also entered into good fatih settlement negotiations anich will resolve the disputes with the representatives of the former workers currently engaged in Utigation if and when the Joint Stipulation becomes effective. Now and in the future.
TU Electr:c agrees to make a good fahh effort to investigate and resolve issues brought ,
to CASE by CPSES workers or others.
2.4. Contingent.upon the Joint Stipulation becoming effective, then upon either the issuance of a' dismissal of Docket Nos. 50-445 OL, 50-446 OL and $0-445 CP A or the issuance of an operating Ucense to operate CPSES Unit 1, whichever comes first, TU Electric will issue to the public and the news media the following statement and wt!!
file with the NRC the requests
~~that it be rnade part of the reecrd of - the ASL3 i~~
proceeding in the paeviously referenced OL and CPA dockets.:
1/ s As used herein, nucicar afficer means the Executive Vice President of Nuclear l Engineering and Operations, er any officer who reports directly to him.
3/ It is agreed that the parties will file within five (5) days af ter entry of an Order of Dismissal of said Dockets such statement as reflected in Exhibit C hereto together with any additional documents to be included in the ASLB record, providing the parties have mutually agreed in advance to the appropriateness of such additiona!
inclusions in the record, provided, however, that all documents specifienlly identified in the Index of Exhibits to the Joint Stipulation shall be excepted from this provision. This Agreement will be contingent upon admission of the statement in the record of the .
proceedings.
j'i 2. n M f S '
'3' EUtbibi t,J,
.. _ _. _ . _ _ _ _ _ _ _ _ ,_ _ _ _ _ _ _ _ _ ._ r _ .m u
TV Electrie recer is that the Citizens Association . Sound Energy (CASE) 1 and its President, . trs. Juanita Euls, have made a sut,stantial, perscnal, and unselfish contribution to the regulatery prceess which usures that Comunene Peak Steam Electric Station (" Comanche Peak") wiu be a safer plant. Thr0 ugh the untiring efforts of CASE representatives, deficiencies which existed in the early 1980's have been revealed in the design of substantial portions of the In -3 plant which ro one else, including TV Electrie, the Nuclear Regulatery ju Commission (NRC), or other third-party experts had fuuy recogmzed or discevered. As a result, Comanche Peak is a better, safer plant than bef re -- %3 and, through the reinspection and Corrective Action Program, has a greater I azurance of safety and tellable generation. We commend C ASE, togetner W with its technical advisors, Jack Doyle and .',1 ark Walth, and other werkers, putale interest organt:ations, and suppcrters for their ecurage and devotion to CASE's goals of finding the facts and irtforming the pubMe. Because of these activatles, CASE's President, Mrs. EUis, has been appointed to the Operations Review Committee (" ORC") at Comanche Peak, an unpaid but important position which wiu provide CASE with the opportunity to continue to play an activo as possible.
,' art in assuring itself that Comanche Peak is as safe a nuclear f acility The ORC is required by the Comanche Peak technical speelfications and '
functions as an independent body assigned the rerpensibility for revice of '
verisus safety related matters including nuclear power plant opera ttere, nuelcar engineering, radiological safety and quality assursnee practices ameng 4 Others. Ameng its duties, the ORC wiu ce responsible for independent revttw of proposed modifications to the Comanche Peak facilities er procedares, changes to the Technical Specifications and Ucense amendments, any violations er deviations which are required to be reported to NRC and other safety related matters deemed appropriate by the ORC members. The ORC meets periodleally to review and discu'.s various issues bearing on the safe operation of Comanche Peak and reports its findings and recommendatiens directly to the Executive Ylee President, Nuclear Engineering and Operations.
TU. Electric _also recognizedts. own shortcomings in amuring the NRC that
- they fulfilled NRC Regulations. Wo acknow!cdge t! at nuclear expertise did not exist to meet those demands and that its nuclear management did not have full sensitivity to the regula'teFy~e~nvirbnment. CASE, Mrs. Ellis, and her coucagues playedTsubst&ntial~iiart"In achieving our current level cl
. , a wareness7 - - ~-
III. CPSES Operations Review Committee 3.1. As provided in the Joint S tipulation, C AS E's desiguted representa uve.
\1ts. Ellis, or its designated alternate, wiu serve, without udary reimbursement from TU Electric, as a member of the Operations Review Committee (" ORC"). In the event
\trs. Ellis resigns or is otherwise unable to serve CASE may designate a representative.
3.2. TU Electric agrees that CASE's designated representative. Mrs. EUis or its alternate, in furtherance of his/her duties as a member of the ORC, may enge.ge the Plai n tif i s '
! Exhibit J I
- . . _ , - . _ _ _ _ _ _ , .,,_.m _. _ , _ , _ _ _ . _ _ _ _ _ . , , _ _ _ _ _ _ . . , _ _ _
services of cne or twre technical censultantsF at TV Electric's expense.
Suen .
, )
ect;sultant(s) shall be :ubject only to the quallfleation requirements cf CASE 9 and of i U Electric. ..
The total fees and expenses of EU such techrucal cor.sultants shad not exceed $150,000.00 on an annual basis, such fees to be in additlen to any amounts payaole 3 pursuant to paragraphs 4.1 and 6.1.
Such payment shad continue during such ;criod of W
service on ORC in accordance with paragraph /. 6 of the Jcint $ttpulatien.
3.3.
In addition to the fees and expenses of teennical ecr.sultants set forth in persgrapn 3.2. TU Electrie agrees to reimburse CASE's representative, T.trs. EUls, or its ellernate for any other reasonable costs c7d expenses he/she may incur in furtherance of his/her duties as a member of the ORC, in acccrdance with normal TU Electrie company policy.
IV. Reimbursement of Lleensirst Ccat.s and Expemes
, 3.1. In recognition of the significant contributien made by CASE and the tremendous cost and expenses incurred by CASE from 1979 through 1933 in the NRC licensing proceedings involving CPSES, including the separate, simultanceus dockets in 1934 anc 1985, and the dockets relating to the construction permit extension requests and appea!s therefrom to the NRC and the Federal Courts, TU Electric agrees to reimburse C ASE the amount of $4,500,000 for au costs, expenses, attorneys f ees, consultants lees, court costs, salaries and debts incurred by CASE in the past and pay for such costs and 3
expenses'which C~ASE wiu incur in closing out its participatien in the NRC !)censi -
proceedings and. establishinti ts oversignt role.
4.2. The payment specified in paragraph 4.1 wtU be made to CASE within 'hirty days of the date the Joint Stipulation becomes effective in the manner specified by CASE
~ ~ ~ - - - . . . :
at that time. -- - - - -
s._ -_
3./ As used herein, " consultant" shau mean any individual hired by either CASE or TU Electric for the purpose of providing advice, recommendations, cpiniorts, technical assistance, or special services, whether
~~or not paid by salary, commission or any other form of reimbursement.~~
g g j ,3 Exhibit J
, - - . . . . - - . ...-e ,-
.s.-
- _- _ - ~ _ - . . - . - - . . . .- - - - . . - - - - . - - . ~ - - - . - . . - - .
, 4.3 Payment cDL tions hereunder shnu not be subje to Arbitrationg g g j. ,
4 V. MutmI Releases Exhibit J 5.1. Upon the effective data of the Joint Stipulation, TV Electric sgrees to release and discharge CASE and Mrs. Juamta EUls, their successors, assigns, officers Board of 0; rectors, members, consultants and att0rneys from any and au claims, demands. $nd causes of action that TV Electric may now have or that might subsequently accrue arisirg '
out of or connected in any way with the design, constructicn, operation or licer. sing of Comanche Peak Steam Electric Station.
5.0. Upon the effective date of the Joint Stipulation, CASE and Mrs. Juanita Edis each apee to release and discharge TU Electric, its predecessors, successcrs, assigns and any of its parent or sister companies, officers, directors, managers, agents, employees contracters,$' consultants and attorneys frem any and all c! alms, demands, and causes of ac*.!cn that CASE or Juanita Elus may now have er which might suosequen'.ly accrue arising out of or connected in any way with the design, construction, cperation er licensing of Comanche Peak Steam Electric Station. ,
5.3, At the time of payment by TU Electric pursuant to paragraph 4.1 above, CASE shau deuver to TU Electric a General Release in sucstantiauy the form set forth in Exhibit D, attached, from Jack Doyle, Mark Walsh and any person, other than CASE or Mrs. Juanita Ellis, who is to receive reimbursement as a consttitant to cr an expert witness for CASE out of the amount specified in parapaph 4.1.
5.4. It is understood and agreed that the release granted in patopsph 5 ; and 5.3 shau haye no effect on any claim which is otherwise within the terms or coverage of the Price-Anderson Act, 42 U.S.C. 2010. It is further agreed that the releases granted in 3
1/ As used herein, " contractors" shall mean any company or crganization hired by eitner CASE or TU Electric for the purpose of providing advice, recommendatlans, opinions, technical assistance, or special services, whether or not paid by salary, commission or any other form of reimbursement.
Piai n tii f s '
EXNbit 3
4 paragraphs 5.1. 5 : an. .3 shall not prever.t the releas.
party from asserting any defense or counterclaim with respect to claims which are the subject of such *elease asserted a.;iinst the releastnr party by any one not a party to this Agreement or by any awner c Cc nanche Fea.: other than TU Electrkt - p-. i0 i 'i *
/
,/ VI. Indemnificaticn Exn it J
/
8 L 3 thheffective date of the Joint Stipulation and sublcet to purgra and 6.3 gf-ti$is Agreement, TU Electric as defined in the first paragsph of 'ne nerptb. agrees to indemnif
/ f and defend CASE, and Mrs. Juanita Euis, their successcrs.
assigns, Board of Directors, members, consultants, and attorneys from any and au claims,
,[ demands and esuses of netion asserted er brought against them in violation of the re! case
/
set forth in Article V, parapaphs 5.1 and 5.3.
Such indemnifiestion shill include au attorney't fees that CASE, or Mrs. Juanita EUis may incur by reasen of cr in consequence
)
i of any suen claim, demand er cause of action, provided however, that TU Electric's total i iiability under this parapaph 6.1 shall not exceed $4.5 million, which amcunt .vould be in addition to the sums paid in paragraphs 3.2 and 4.1.
6.2 i CASE and Mrs. Juanita Elus shall notify TU Electrie of any suen etai.n, demand or cause of action asserted or brought against them or any one of them and TU Electric will assume and defend, at its sole cost and expense, any and all such claims, demands or causes of action. TU Electric will, however, provide to CASE copies of a0 I
pleadings and briefs filed in the case. /
I S.3 The notice required by parsgiaph 6.2 shau De provided not later than fourteen days af ter CASE or Mrs. Juanita Ellis receive or obtain know! edge of any such claim, demand or cause of action. Notice shall be provided as specified in paragraph 10.5.
6.4 Notwithstanding the provisions of parapaph 10.1, TU Electric may, af ter pr!or notice to CASE, disclese this Apeemant er the terms of this Apcement if, in TU Electric's sole discretion, such disclosure is necessary to the defense of any suc.
e im, demand or cause of action.
3 PleinSh y Exhib 't g
, . . , ,_ ._ _ _ _ . . - _ _ _ . . , _ _ _ _ _._,_.m._ , _
m __-._..._._.m _ . _ _ _ _ _ . _ _ - . . . , _ _
__._....._m_.,.._...,_..,__
, i ' Plai n tif f s '
VU. Ccodittom of Settistgg "xhibit J E
7.1. This Agreemer.t. the Joint stipulation and the Joitit Motten to Dismiss tre mf, and vold and of no legal effect if TV Electric, CASE and the NRC Staff fdB te execute and jointJy file the Joint Stipulation and Joint Motten fer Dismissal.
7.3. in the event the Atomic Safety and Licensing Board ("ASI.B") fails to either grant or deny the Joint Motion for Dismissal within 30 days of its tjung, TU E!ectric rnay, in its sole discretion, terminate this Agreement, the Joint Stipu!atien and the Joint Motion for Dbmissal by written notice to CASE made within 30 days af tar the expitsttoa of the 30-day period following filln; of the Joint Motion. If TU Electric faib to make written notice to terminate within the 33-day period, this Agreement shall remain in fuU force and e'fect and neither party shall be entitled to resciad this As eement except as provided in palagraph 7.3 below. In the event that TU Electrie elects to so terminate, the period for deferral-of actions required under the hearing schedule, as specified in the Joint Motion, shnu be extended for an additional period of time equal to the numoer of days between the end of the 30-day period following filing of the Joint Motion and the day on which the notice of termination is made.
7.3. At any time up to 30 days af ter the ASLB issues an order denying the Joint Motion for Distnissal, TU Electric may, in its sole dlseretion, by written notice to CASE, either:
(a) make the Joint Stipulation effective as to the rights and obligstions of TU Electric and CASE thereunder, subject only to the cencurrence of the NRC Staff as to the applicability of Section B thereof. Upon such concurrence by the NRC Staff, the Joint Stipulation shall be deemed effective as -if - the ASLB had accepted the Joint Stipdation and dismissed the proceedings's or (b) after such denial, terminate this Agreement.
Plai ntif f s
~~Exhibit J 3~~
. Thi$ Agfeement shall .ninate upcn the expiration of Jeh 30 day period unles,s TU E'e:trie exercises its rights under this Article.
. ONIS' Exhibit J
,, g 3.1. Except as provided in paragraphs 4.3 and 3.3 of this Agreement, all disputes regarding the meaning or interpretation of this Agreement or of parapaphs \.5, A.6, and A.3 of the Joint Stipulation, which the parties cannot resolve amicably shall be resolved in sceordance witn the rules of the American Arbitration Association ("AA A") except as modified by this Agreement. Arbittstion will be commenced by the service of a .vrtiten notice by the party seekirg arbitration setting forth the matter in dispute and request;ng
- a ruung pursuant to this Article, '
3.3. The arbitration panel will be composed of three arbitrators, one appointed by TU Electric,_one appointed by CASE, and the third arbitrator appointed by the two orbitraters named by the parties. If one party falls or refuses to appoint an arbittstor
. . _ _ . ~ _
s'!!hin thirty days of the commence ~
aent of arbitration, the arbitration will be cenductec by the arbitrator sppointed by the other party. If the two arbitrators are unable to reach
~
agreement on a third arbitrator within thirty days of their appointment, the third arbitrator will be appoir,ted by the A A A.
3.3. The arbitration panel shall issue a written decision declaring the rights and obligations of the parties under tais Agreement, and shall have author!ty to issue an order requiring the parties or either of them to take er refrain from taking action; provided that the arbittstion panel shall have no authority whatsoever to hear or decide any dispute falling within the terms of Section B of the Joint Stipulation attached. The decision of the arbitration panel wiu be final and binding on the parties.
8.4. The situs cf the arbitration will be DaUas, Texas.
8.5. All costs of arbitration: incurred by both parties, including but not limited to attorneys' fees, wi;aess fees, and administrative costs, sitall be borne as determined to be appropriate by the arbitration penel, pursuant to the rules of the A AA.
Pial n w s '
,. Exhibit J
8.6. In resolving ty dispute between the parties '.suaat to this A. ticle, the arbitration panel snr.U apply the substantive law of the State of Texas excluding, however, the conCict of laws crovisiens of the State of Texas, in add:tten, Rule 11 of the Federai 9 9 Rules of Civil Procedure shsu apply to any and au r! aims made pursuant to Article V:0 "C .O -
of this Agreement. .
yj 1l it IX. Re:solutiern and 1,en1 Opinions 3.1 The parties agree to exchange copies of duly executed and approved resoluticas of their respective n oard of Directors in form and content set fortn in Exhibits E and F attached. In addition, T1' Electric shau deuver to CASE a leni epinion of the firm of Worsham, Forsythe, Sampels & Wooldridge in form and content set forth :n Exhibit G attached.
X. Mi cellaneous 10.1. Except for the information set forth on Exhibit H attached. which may be released to the public when the Joint Stipulation is filed, this Agreement snail he maintained in confidence by TU Electric, CASE and Mrs. Juanita Ellis and neither the 5ettlement Ageement nor the terms of this Agreement may be disclosed to any other person unless such further disclosure is equired by law (af ter diligent attempt is made to pr event such diselesure) or is agreed to in writing by au parties. If any party to th:s Agreement is threatened or compelled by operation of law to dise!cse this Agreement er the terms of this Agreement, such party shall, prior to disclosure, immediately not:fy the other parties to this Agreement of such threatened or compelled disclosure in order that au parties may contest the disclosure. The obligation to maintain this Agreement in confidence shall survive the termination or canceuation of this Apecment. It !? agreed that any public. stater...:nts or presa release.s concerning the Ag;eement made tsy any party to the Agreement shan first be apprbved by the otrer parties hereto.
Plai n td i s '
-IU-Exhibit J
-. . _ __ _ - _ . - . _ - _ . - - . . - . - ~ . - . - - . - - - . _ _ . - - - -
10.2. This Agreerr will be binding upon and inute t w benefit of CASE, Juantta Ellis ar.d TU Electrie, their successor and assigns. This Apeement will not W assignae!-
~
oy any of the parties hereto without the written consent of the remaining parties. 2 10.3. This Apeement will become effectioe upon its executien oy TU Electric 5 u
%] -
C ASE and Juanita Ellis. 2 .9 10.4. This Agreement constitutes the entire Apeement between the parties anc
j) supersedes au prior apee m ents, representations, statem ents, promises, and understandings, whether oral or written, express or impUed. This Agreement may only be amended or modified by a writing signed by au parties. This Settlement Ancement and the Joint Stipulation will be construed in a consistent manner, taking into consideration the purpose of Inis settlement Agreement. If any of the provision
~~are not consistent or i~~
are contradictory, CA3E and TU Electric apee that the Settlement Apeement mu govern.
10.5. Ary communications or nottees made er given by any party in connecticn with this Agecment shad be in writing, to the loucwingt if to TU Electric:
Wlulam G. Counsil Executive Vice President, TU Electric Skyway Tower 400 North OUve Street, L.B.11 Dallas, Texas 75201 If to CASE:
Mrs. Juanita Ellis President, CASE 1406 South Polk Street Dsuss, Texas 75204 With a copy to:
Billie Pirner Garde Government Accountability Project ~
Midwest Offlee
- 104 Et.st Wisconsin Avenue - B ~
A ppleton, Wisconsin 54911-4897 P oi n 'it i s '
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Written notices wi' .e by certilled tnail, return receip .equested or hand dehverec
~~and wt!) be deemed given on the date of m ailhig if mailed er delivery if hanc delive ed. .~~
01 The undersigned warrant and represent that they have full and complete rightD D .t power, authority and capacity to execute this Agreement en tchalf of the parties to tht@ g Agreement, due ta Corperate Resolutiera culy autnortzed. m .c
{ ,M Fer and On Schalf of Texas Utilities Electric Company Separately and Acting as Project Manager under the Joint Ownership Agreement on behalf of all The Owners of CPSE5
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B71 _
M / M M A 6/7d.tfll M111]am G. Cour.sil Executive Vice President, Generating Divisten CASE (Citi:cris Association For Scund Energy)
Byn Osun
//
% ECL i.Mrs.) Juanita Eus
/ Preudent BY: 4N ; a. [4 - bfC.
/j,Olts.1 Juanita EllisDncivicually v
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Exhibit J e - , - - - .-,m,,,-c . - - - .w . . , , -.,..-..--,,r,s..w-r-
1 '
- Plal ntif f s' Exhibit J Ar flDAVil of Berters N. Bolt:
STATE OF TEXAS }
COUNif CF DARA$ )
B6 fore me, the unterstgr4C euthertty, on this ly terscnolly apptarW Bertere 4 Bon:,
who first teing sworn on her 03th, states es fcitewr
~~My name is Barbers N. Bolt;'. ecsim at 20.2 Scuth Polk Strmt,0elles, Texe:. I am~~
~~ver the ap of twenty-one (2)) vars and fully competent to meLe this off temit.~~
- t "I first tocame euore of Citt: ens actetten for Sound Enerw (CASO from e newspaper rtide :cmetime in 1979. (It is my unirsW. alng from conversetichs with Mrs. Ellis, as well as
~~f. cm CASE hancruts, that the cr; ant::tton w: furmN on January 8,1974, six cers tercre the Calles City Council held hearin7 on CP!NS ra;uest to perticipete in the Comenche Peu prokct.)~~
Af ter talking wtth CASE's Prestoant, Mrs, Elits, eDout the grouD's anarns 00 cut the Cemenche P cet nuc! car pcwer p!snt, my husband and I aclid to tKome involvCd. We J0!ntd the crg:nt:stion at that time.
1.wcrktd clczly with CASE from 1979 until my resignetton from the Secrd on July 19,,
.1988. For much of this time, them of us who perticipated in the hcaring; aera frtene: r well 3; .
co-wcrkers.
This $.es not imply that we hal co disa;rNmEnts but that, despite our ciffcrence:, I continM to wort with CASE ena remainte an the Boerd. Everything charqd in the sering of 1988, hewever , when a settlement in th6 cporating licenta hcertrg was prepcctd betwmn CASE ,
,* .rs. Ellis, and Texas Uttittle: Electric Compeny (TUEC). My husband and I sougnt the suce cf counml and restgnN from the Cocrd .n July 19,1988, Dut remeined CASE membert, 1
Plal n tif f s *
.- Exhibit J l
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Exhibit J 1
As I r(call,I was eitctW e CA$E beercmember end officer in 196 t. Trom the time I joinM CASE in 19791 was en xttve m6mber. I particip9cd estensively in the cporcling itconse l
trering en Comenche Ptet, utsting in heleping and impMmen'.ing 1itivtton stretah *r1(f ng C.!m.ory r(cMts, perticiteting in Ituel cismery, onely:ing icuments, m.ststing in the ,
preperetien of filings, and working clowly with twhnicel witnwas and r,ststing them in the prepercllen of th]Ir lest1 mony--es well as assisting in the nearIngs themselves CASE's purptce !
md vtrtuelly all of its rtivity concernW the Comenene Peek Dient, its constructton, licensing, and I creretton.
DurIng this time por toj, I also ettended prehooring conferences and t(chnicel mcetIngs as f cne of CASE's reprteentettves. After TUEC rtcusttd the suspenslon of the operatinglicenw heering:in Jenuary,1985,I cent'.nued to pertictpete in the interventico elfert by ctsting in the preperatich of CASE filings end by continutng to r(quest ena enely:e infermetton on TUEC's l yer tous corroctIve xtion pro; rems. As one of CASE's ropr cccnettves, I elso centinud to ettend numerous mwtings and discussions of ttchnical tesues that were held petwNn CA$E witnesocs end TUEC and Nucifer Ro;uletory Commteston f NRC) steff and consultents.
Prtor to 1982,I assisted in CASE's intervention tafore the Tex:s Public UL,ty Cunmisston (PUC) in a rete crE(11td by Dellas Power end Light (DP&L) f tom 1983 througn 1985, my huscend and I were the CASE repruwntatives who were rteponsible for CASE's Interventions in thrte rete cees r(gerding Comenene Pret; PUC 0xtets 5256 (in 1983),5640 (in 1984), and 6190 (in 1985). I a::ststoj in the preperetton of littgation strettv/, preper cd i
disc:rvery r(quests, participettd in actuel discmery, wrote the motions, brlefs end other filings, perticipetcd in prehoering conferences, end ansist(d in erces-ex em tret1on.
I was also CASE's repr(contative in coveral conferences and forums on issues =aclette
! with Comenche F est. These mmttngs were vartously sponsorcd by the Nettcr,el Acmetellon of l
l 2
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Exhibit J
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Exhibit J i Attornev$ 0enorel, the ?U0, th0 0f f;co cf Public uttltty Counsol (CPDC), erd verws cc.eltttons cf "cittans grouds. I was also e member of the CPVC's Cittans A:v!scry Ccomtttte from 1983 ;
101966 in thet capacity I worktd cloxly with reprexntetives from vertous pernmentel egencias as well e with the rest (contetivos of a numter of cittrens groups from acttes tre state.
I heve alto representcd CASE on several telev1ston er.d r3:10 pr:grems 3rd he<e bxn Intervtowed cn ver tous issues, es CASE's reprtcentettve, by the mtete.
When 1 tegen to work with CA!E in 1979, the group es cref ttr.g contentions fer the upcoming opereting IIconte hserings on Comenche Peet, the or7:ntretton's fccus was on the problems a:sccioted with nuc!cer pcrwer es ther related spccifically to the Comenche Peat projtct:
its castgn oeftets, constructton flews, end finencial cocts. CASE exprte:ce tree ccncerns in hearings before the Atomic !afety ene Licensing Boerc( ASLB) and the PUC.
",y terly I985,in its newsletters,intcrmettonel hena?vts, end in m(cle intervteas of its Prest @nt, CASE eccer104 that, teceuse all cf the prcblems could ne.er be loantiftd, much less corrccttd, Comenche Prat should nWer be grenttd en operating Itconse, in the seme publications, CASE also &clared thet it was opposed to heving the retepeyers pe/ for the cost-overruns of the projcct. CASE had intervente in every DP&L end TUEC rate era filte since 1974 and would perticipate in erry rete bem cc:e on Ccmenche Peek.
CASE operette informelly out of Mrs. Ellis' home. The highly ttchnical nature of the procatings, coup!(d wtth (Ignt cbs31tnes and CASE's tact cf r(courctc, max for a fast-paxe err /Ironment. Numerous hterings were held from 1981 through 1986, most before the ASLB ,
some before the PUC.
Although the by-lews cellcd for CASE to be run by e Boerd of DIrcctors, in oractice the -
Presto nt, not the Boerd,controlltd CASE end accumtd the rmpensibilitics normelly 031tgettd to ,
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oeme off teersles well es her own. TwoTnatve bcardmembers routinely oeve bor thetr orextas.
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Exhibit J
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~~Exhlblt*J '~~
Ltter ,Mr5. Ellis xntrolhd tre 'nformeticn (bw to end from the thrto out-of-state trerdmemttrs ,By,J,982 or 1983, tefere our opintens were inlicittd on a matter put to %
ggrememtier5 wearately for thpir_cgnsitretionaugujtroutjylyEgrubellteger t(erdmembers haJ oither a;rttd with hor cr haj given her thair prcxfm.)
in to$ltion, to my knewhop, all of CME's rocercs wore in her ponc3fon and unir her contr01--not only all of the herings-rele!Micuments, but all of the orpntrettonal informetion
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on membership, financys, and fundreising es well. She kept erry kinutos/?he (ditte the rewsletter. She was the only one who knew who all of the members or conors were. ,
'T
$he also exerCited e grcet Mel of control wer the group's finarces) To my knewkd)) She tmer askte for Board sprwel cf fery exandituros, nor did she roquest Scard epptwel fct purportedly loaning CASE epprcximately $30,000 over the yter! Whenever we wero reimbernd for seme CASE-reletM er.pentes we were elwe/s given e personel chtet by Mrs. Elits.
To my knowkop the paid eli CASE expens try'p'er'6nel chr25,'riwer by chttks orewn on e CA?.E' excunt: I never saw a treasurer's repor t endj frifio~nly what Mrs:Ellis told me from time to
' time about her cessment of the general state of CASE'silnefic!al condillon As inciestcd in CASE newsletters,interestcd tretytcuels could Jcin CASE sitner oy pyrg 6;es or by volunttering their time. (in theor/, thme who did not renew could te croccid ofI the membersh1D roll, but I wes nwer told thet this was per mne Nor, to my krcNkdp were voluntters' hours ever trackte to ensure thet the/ wortcd the "requirod" num0er.) InstcN, in practice, s crding Mrs. Elits CASEs membersnts consisted of all who s7nd wIth CASE etout the plant, no metter how much (or little) mone/ or time the/ inetod, or few cf ten the/ Cid (cr l
I did not) @ so. i kxcrcing to the by-lew?, e pertcn's opplicetton for membership was thcoretically S *
^
Plai n tilf s -
Exhibit ;
i er -y v--,- y --r-,.--,..,-m , - - - - .,y .v e y -,--,2 - ---- ee-, , - - --- . . . , , . , , , -
. - . - . . . . - . . -- ._- - - - ._ - - . = - . - - - . . - - . _ .
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Exhibit J
- Bcerd,I was nwer told of anW,0 over being turncd d7wn for memberchtp,much Itcs of anyone's opplicellon ever being brought before the Beerd for such const@raticn,;
Memtership in CASE did not preclude anyone from also botng a mumcor of 3rctter gr0up thet wec concerned about Comaner,e Post; nor did membership in anothy 70up pr(cluco enyone from being 3 CASI. meniber. While I workte wtth CASE I knew CASE memters in gxc stencing (including several Individuals who ero pletntiffs in this sult) who were tremters of other groups.
I also rccall that Mrs. Ellis said et the time that thw were CASE members Members were entitkd to work on CalSE xtivittes, rcco!ve the newsletter, attona an annual meeting, and vote for he# boerdmembers and off tecrs in on ennual ela:t!on. In x!uellty,)
mostly only Dalles members were able to work extenstvely on tha her trrp, since the CASE of f fce was in Mrs. Elits' home in Oek C11ff. The newsletter came cut sporM!cally, usually wnen Mrs Ellis cttermlnce that fune were !cw. If the ennuel meeting,wes held, mem:ers were unally given ~
very short not100. I rtcell only thr90 or four annual member mmtings frm 1979 thrcugh July,1988 and I do not belteve het e Quorum was proznt at any of them.2 Elections were mere votes of confloonce than rynuine ekcttons pres, xcorcing to the >
lews, once a member was skettd to the Board, the position was ewenlisih ;ermanent. A boerdmember could resign or be remmd only by a vote of the Scerd, not Of the membersnip-There was no term of offica In prxttce, all nominees to existing or rwwh-crast(c Boerd nets ,
ere chccen by the Boerd, es were officers (who wero elweys curreni trxrtmembersh Scqtnning
) 'th the 1902 okction, the process was divorctd from the annual mwttrn and electtens were held a
Oy meil. To my knowhop, there are no rccore of the results of any eketen. ;
i rmsll that I come on the CASE board in 1981, end was ekcted Lestery the wne yeer (I also recell that my husbend boceme a bccrdmember in 1980 and was (m.ed acting Oco Pre Sini Smetime prfor to 1985, when he bcceme Ytee Prestent.) Whm I was ekettd 5
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Exhibit J Scr6tery, I was told that the office was hcnorery; that I was being nam (d to the posttton "for all tay herd work", snd thtt I would not hhe any of fic!al rerpensibiltlics in this cepecity since the r Prostdant wishod to teks the minutos cf any,mteting At the time I came en ;ne Smrd, beerd mcet;ngs were held in Mrc. Oils' living rmm.
Meetings were informel, and ccourrcd periodically, es I r(call, unt11 erout the ttme of the June, 1982 hcering before the ASLS After the hearing, e newsletter was malicd out, announctng that, for the first time, CASE's ennual clection was to be held by mall. A ballot was also enclos(d.
At the nexl beerd mwltng, held in August,1982, It is my rctollection that two new; boardmembers ( Mr. Olls, Mrs/ Ellis' husbend, and tio. Weich) wetuitd 10 tho aca. c, and itst, Mrs. Ellis was vctte e setery by a mejority of thcce present. ,( As I rccell, wo were told that it was l msroly e gesture c' alpprtc etion for all of her herd work; that sne would pitably nwer receive any mone/,) I also tycctfically recall that we did n0/ vote with the mejorfy_tq.g!ygAtut.slery.
Tim' yTnkledy, tho' Bo:ddtd not mist apliiuhtll June 'l T,'I968, almost six years later , when ,
it met to discuss and accept the f.ettlement 3;rcement with TUEC, wntch incluo:d en intitah compensation pock 3@ of at 10:st !440,000.00 for Mrs'. Elitsi Setwten 1982 end 1988, two tocrdmembers movcc out of state but remainte on the Scar:
(Mr and Mrs. Clmore). (To my knowltop, one boercmember's permanent resto3nce was alwws out-of-state Ms. Welch's. I recall thet she was in Dall:s only occccicralk to ecstst in come of the i
operating license hostings.) in s%!tton, two boerdmembers who livcd in Delles (firs. Orw'end Mrs. Altup) were Inxtive. As I r(cell, Mrs. Altus did net parttcipate in tN h(erings er ettend e i-board)nceting, including theJune,1988 discussion of the proccccc settle ent, untilJuly H, 1988, when CASE ttceived its portion of the settlement funos. As I recall,Mrs. Grw atteno<4 at losst one board mteting pr!cr to August,1982, but did not participale In tie heerings or ettend the l cattlement discussten in June,1988. (5he did ettend the July N,1988 mtoting )
6 Plai n tu is '
Exhibit J
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Exhibit J By,1982 or 198370ut of ntno CASE bosromomters, only four bordmombers who woro .
httvoly working on the oporetIng licenso heerIngs ilvrd in Delles: my hust>3nd, mpalf and Mrs 6nd Mri. Ellis. 01 thoce four boardmemt ers, only thrce ( myself, my hustend, end Mrs. Elits) were ming !gl work end tcennical enelysis. ( Andenh twet'ceromt=nbe,rs.,myWf eno m'r hus banorwer, werking on the PUC eete cams end ca rete !stues estccietud wilf t Comenens Pteb) .
t from 1982 cr 1983 until Juno 14,19BS Boerd businres (Tmy bewkopi,en!y, -
metters which Mrs. Ellis d)ciad.to bring to the Cther boerdmembers' ettantf00hves (cnductCd primerily by phone through Mrs Ellis. f trst, she conta:tro the other beordmembers end ebtsince both Mr. Ollmcre's and Ms. Welch's apprevel and Mrs. A.tes' end Mrs. Ore /s proxtes. Then she summerINd the is ve, reporicd the " vote" tally, and sk Ed if we cencurrcc To3yingdEN,~60
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min'u'tEcTt'hcE03nWri;stIchs er decisicni wer'ef:pt. i Cc=lenally during hearings, ed-hce m xtings were nele in whten icf sicns were me sy the boardmembers (ustelly mbif Mrs. EllM and Mr. Ellis, and sometiinm Ms. Welch (if she was in teun) and/or my husbend es well) end enctettd counsel f e g., Ms. Perm) who were octually present. M,31n, to my knewic93, no minutes of these mcetings wero kept.
The events that 100 up to cur resignation from the CASE Beerd are es follows. In Maren, 1988, my husband went with a CASE engincering witness to tour the plant to checx on e numcer of his concerns. When he return (d from the ! cur he told me that the witne~;itkN whet he hM tren. Sinco one of our metr, witnoccas felt that come of his concerns were teIng settsfoctorily arres:% my husband actad to rcccmmeno to Mrs. Elits that CASE conster settling en them issues. Althou;h he told me that he hW spcken with her wverel times on this metter, he said thet she did not ep;cer to concur w1th his rccommenc311on SometIme In eerly My/, I believe, Mrs, Ellis ennounced that she, ter husband, ena Ms.
Billie Cer03 (en ettciner with the Cwernment Accountebility Pro)<rt (CA?) who wes Esisting t L
7 Plai ntif f s' Exhibit J i
L l
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[ASE in the ocereting limnse hurjngs) were holding settlement ncq;tjett_w wtth itlEC. r1y huSDand told me that, es CASE's Vice Pres 100nt, he thought he should be on 11.6 no)]ttotIng committts. Later, he told me thol he hM astid to be incluid, Dut that his rtcuest was turned dun; thet he wes not allowtd to perticipate in the nc@tf attons.
The draf t a;rtement was complettd swif tly, but before we muld p:rticipate in the s discussions en the procesal (cr even rem lt) we tech hW to first sign a conf hnttaltty agrcement.
When we first rom a copy of the draf t of the propoctd agrtement, toveral ttoms concernte us greatly. first, the tettlement was to be mal) betwton CASE, firs. Ellis # e s9&s/sceNv, and TUEC So:cnd, axoptence of the a;rtement would result in the complete dismismi of the operating e license hostings (instcod of iettling seccific Issues, while preserving CASE's right to littg:te any remaining concerns before the ASLB). Third,it contained (quivccallangu:ry that m!ghtpoperdire
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CASE's right to pertict; ate m a rate base ccT on Comentne Peak. f ourth, the cettlement incluaM cash peyments to CASE and to firs. Ellis personally. L!ne ttoms totelling $440,000.00 were spo:ifically carmerked for firs. Ellis personally ( not fncludina env money thet sne mient also rtceive for reimbursement of the loan she claimcd she hM mee to CASE). CASE w:s to be given en unspcciffr4 amount for relmbursement of expenses incurred during the ycors of hearings, es well es a fixed _emount fce e number of voers to enable CASE to hiro e somcone to n:enitor the comperys complet!cn of the impjementetten of its corrective act10n pla3 (We weret it.ynncd; The thought of mone/ being pert of erty settlement had never crcc?xd our minds; much less the Idce thet anycne,
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especially a CASE boerdmember end offleer, should profit pertonelly from tt.) And fifth, amording to previsions in the deeft proposal, the cattlement itself,(including the deteils of the financial errangements) would remain forever socret, even from CASE's members.
for the first time, we reall td that we were isoletto from firs. Ellis. Nor could we discuss cur con rns with anyone who hM not signed the conf %ntlelity a;rmment; we ha] no ww 8
Piai n tir f s '
Exhibit J'
.,,it,.,,S' dxhibit J to conta:t toerdmemtcrs cther then the [lltses ( who hat of course, noptiettd the draf t pyNmegQgnd the ettorneys whom we haj workcd with in the hcerings *re either perttc!reting
.10.the3;tueLneaptletions (Ms Gervej or were o*<fstng Mrs. Ellis on it.
After conversations with Mrs. Ellis and w(th two of the etterners,it boceme cloor to us that the settlement would be apprcvec centtally unchangtd, and thet it wNid te epproved very QJickly, without due cons 1Nretton er sufficient revtew, and without S3tisfrtcr!!y atrtesing our o>ncorns. When we first obtaintd a copy of the dref t s;rcoment shortly after it was complettd on June 6, we had bNn euere of the existence of rmyttettons on a po:stble tott'ement for ;c;s than e month, i.ess than ten cLys later , on June 14,1988, the_8cerd met, for the first time in almcct stx; yeav_s, to initially considGr end ultimately approve the cettlement.
The mceting itself was a charn Instco$ of btsinningn et 9:00 s m x we hM teen !M to believe, It did not bu;In until almost 6 00 p m., and was still in pra;rer.; *ren 49 lof t arpynq
-- S -
3:00 a m. the fojlewing morning. (Neither Mrs. Altus nor Mrs Gre/ '4ere stownt. Mrs (1115 clotmed to have their signed orexics and conflict of intertEt welvers )
At3ho outset;we were told thet~coch of us, es well es omh of the otter toardmombers who were present; hM to f trst sign a "welver of conflict of interest" stetement,md that 'we had to ,
approve the minutos~of the August, f 982 board mcettnq es presenkd by Mrs. Ellis //npawkw/
prove thel 1,tentre nrom, esen thetga cur rarikel:61 of what knfiremtrafst!!ga!!rfm wtut was wr/ttonin themmuM, ntic1st A11prowa: We knew fr m 1M tens!ca fn the rccm.
Wever, that if we did not agree to sign the walvors of confilet of Interest Ed vote to opprove the minu'tes as written, we wovld te stkod to 10cve. We &cickd to stay.
e As the evening went on, there was no satisfactory clicutston of any of the concerns that we ratted. ( I) hcw CASE [ntenid to fund its Interventfon in the rete DRcxa MeNote te/cv);
(2) that the detells of erry monetery e*> erd that CASE or any indivtduel rcceind es pert of the i 9 Plai ntif f a
~~Exhibit J L-~~
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~~Exhibit J t~~
ment from the tattfement for set [egent should be m01publ,1c; end (3) that tf arhonc r(ceived 03r past CA[! wcrt , that everyor;e shculd;(Our Initto) positton; tha'. no are should profit from the
'se;tlement, wes cirmistojaut of his?.d?We st=acc iij meting pptertal chenys that me it explicit that CASE would not be pricluid frcm par (tetpating in a rate base ese on Comenche Pt but we w tre unsuccessful in Setting the Board to acida hew CASE would fund the inter vention once ,
the tettloment wes announcoi !weral hours into the mceting, af ter Wery concern that we ralscd w:S oppx4d, ridiculed, or ignored, we became silent and abstalntd fro,n voting on any further motions.
Note: A
~~rate base case" is the era that an ekctric utility must file before the PUC to roavest that the cost of a construction progct be ellewcd "Into the rate base"--f.e. ,~~
te incluxd (for the 30 to 40 yes estimatcc life cf the plant)in the total value of the C0mpany's essets upon which the company is allcwed to ern the rate of return gr:ntcd to it by the PUC. According to PURA ( Public Utility Regulatory Act) regulettons, only the money that the utility pre es that it $;ent pruoantly on the ecnstruction project is to te incluid in the rate bre.
Af ter midnight, the discussion turned to the topic of mency and bicame surrN1. By the time it was over,long after we had lef1, CASE had &ciad to ask TVEC for $ 10.0 million: $5.0 m111100 that we were told would go to certain CASE witnett.m ("the whistleblewers') and $5.0 million th:t would go to CASE. (CASE's portton, we were tolo, includtd all of the money that, Mrs -
Ellis wes to get pertenellyt tnc!uding p tuostentia} emount for.tolsebility".or tretirement-pansjort* oryheteVer term enc whatever amount the rest of the Boerd setttcc on af ter we t well es reimburtement of thtrican and pe/ ment for her pet worr wtth CASE )
Before we left, estimates of boardmombers' salaries for pest work (es well es estimetes of other twments to be majo to scme of them); estimates of icgs), consultant, and (tchnIcel 10 Plai n tif f s '
Exhibit J
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--r. %- 7-,p-7---w- r-- * - --- p+ -r- y
L 1, n Elf IS '
dxhibit J witnesses' fws, etc., and estimates of other reimbursoments were mxo. The numbers were siid tcgether , end tn (quel amount w s acid in "for the whisGblewers' hse estimetes were then doubicd Next, the estimates cf scme of tha beardmembers'salerles rd other perments wero increaud syn endaye- e few sweral times over, We lef t sometime ercund 100 e m. cn Jur.e 1 S while the mceting was sttil in progress.
_We had twn end brord enough.
Later that c:y, Mrs. Ellis called to tell us that, erter the mwitng wes slourng someone noticed that thei had forgotten to a% 1n the estimated ccst of the 'othtr* expenses that CASE hac incurrtd in the hearings. She sold that the other beercmembers had all a; recd to at in the amount, along with en sittionsl : mount that would tring CASE's total up to en even $5 0 mtllion.
She said thet a similar upward revisten in the emount requested for the whistleblowers hac :cen approved L'y the other boardmem0ers as well. To the best of my knewkdge, that is hcw CASE errived at the $ 10.0 million that it recuestod and received from TUEC :s part of the settlement.
(H2!t The spl;t was later reyttad (we were told, in reso0nse to e rawest by Ms. Garoe) so thet the whistleblowers were to recalve $5.5 millten and CASE was to rE<stve $45 million] .
a f or me, the last strew came on June 30,1988, the c:/ that Mrs. Ellts signed the ,
settlement on CASE's behalf, Ylhen the que ma a c:py of the press rs! case that was to te releemc the followIng du that anncunccd the new-ccmpleted settiement, alorg with a copy of the Joint Stipulation (the only pertien of !he agreement that was to be modo pubile), she told me that CASE Would nct have to perticipate in the rete tre c: a on Comanche Peak, beceum of a verbal Orom.tse thet a TVEC executive hed ma.10 to her, ,
I was stunned. Such an uno?rstanding (which I wes beIng told about only of ter the Ink was beroly dry on the written settlement) was not only totally orpcErd to all of CASE's pest :ssurances .v that it would intervene in the rate bcm casa, but made a mcckery of the changes that my husband
!! Plai n tif f s '
Exhibit J p
~~-- Plai n tif f s '~~
Exhibit J end I hM so carofully craf ted in the wr1tten agreement et the June 14 board mooting to ensure that .
CASE av/v partletpete.
I knew thel I could not continue to be involved any longer, but I did not knew what to do,
'~ ~
nor ".4 my husband We belle 7dftEiive~dtd noihM the 'ohtton 16 r~esign fr'om the Boced befort
~
thy t6mic Safety end 1.icensing Board ( ASLB) epprovec the st!'lement strce, eccording previsions of the confidentiality meeement which we hM signed, eny one of the signers whose actioliico'uld be construed as leading to the scutt!!ng of tha agreement would be suody/, CASE, and by TUEC.TWe felt certeln that If we resigned at 'het time, we would be held Itable if the settlement was not acmpted by the ASLB.
With the hearing fast approaching 61 which the ASLB would doctda whether or not to approve the settlement, my hustend and I contacted an ettorney. I ma@ an espointment to discuss the situ 3 tion with him in his office on July 11. After this mwting, we reiterated our ancerns to the Board in writtng and requestW an immectate mceting to ctscuss them. I wrote up the craft of our proposa1 resolut!cns, wntch my Msband than reviewed and epproved. On July 12, I deliverec copies of our proposed resolutions to Mrs. Ellis' home and requestcc that a moetIng De called to discuss them beiere the hearing the fellcwfng morntng. I was promtsas a breakfast meeting at which our preposM resolutions wouc be discussej, but that discuss!on never tock place.
The following cky, s'; tN SLB ned approved the settlement (ruling es well that the entire settlement egrsement M w ce released to the public) and hM dis:nissed_ tfie coersting Itcarjse heerings, we end the other CASE boerdme_mbers whn were pre:ent, along with M.s. Garps,_
met brlefly but, egitn, they would not discuss our cenar1s. On July 14,1988, the (by on which CASE actually received its portion of tb9 settlement monias, the full Bo8rd (Incluitng Mrs. Grey and Mrs. Altusi met. Once gin, cur concerns were not sifreccod. Finally, after experfencing a A
f 12 Plai ntif f s' Exhibit J
c
?!3,i n tli f S '
Exhibit J H i
l
_ giest 63a1 of ridicule and hostility, we walktd out. At thet point
- . . . . we both ictdod that we could no ;
)
lon@r remain on the Board. )
We then drafted our joint letter of resignation es off txrs and es bc3rdmembers, d3ted July _19. I mellod ccptes to all of the beardmembers. CASE accepted our resignettons in a letter dated July 29. We repiled to thet letter inour letter of August i, in whitti we raminood Mrs. Ellis, that altlinugit we had resigr,ed es boardmembert end es of f tcers,' w way st/// C4Emem06es .
Follcw iny our resignations, we trted to rpt CASE to disclose its firreicos and xtivities to us before filing this lewsuit.
Aftc r Wewing our options *lth counsel,I drafted our letter of Ncvember 28, in which
[
we esked CASE to provtrb us, in writing, the & tells of the proce::s for filing requests for .
)
compensation or reimbursement which epplied ccually to er:yone who hd worked wIth CASE in the )
1 aest.
N Mrs. Elits replied in her letter of Decem er 16, that CASE wes awsiting an (RS rultng en i no CASK Could 169311y reimburse Without allegedly leoperdtzing its tax-mempt status. We were, promimd a reply 1 scon es they received the Information. We are still waiting. .,
in our letter of January 5,1989, I then rcquested wr1tten answers to a serlos cf Questions ocncerning the distribution of the settlement mcnles (e g., hcw mucn hM cone to wnnra, when, for wnet, and on what besis). I also noted that the IRS mtgnt never rule on CASE's request.
~~. Ellis ackncwledgcd receipt of our letter in a note dated January 13, :r.d later, in a letter s~~
4 January 21, stated that CASE's CPA was oreparIng a summcry of the information that we hg l.
_, <u'ested which should be completed and forwerctd to us by the end of the month.
We heard nothing until we rewived Mrs. Elits' letter dated Merca 1, In which she stated that CASE was " nearing completton" cf the propexd letter to the IRS end thst CASE's CPA was also l
~~nearing completion" of the summery of the information that we had been prcmtsod.~~
l 13 Plai n tir t s '
! Exhibit J
(*S 41 O (t/ ( $ '
Ex)ilbit. J The next letter that we received, ette March 31,1989, como rot from Mrs. Elits but from CASE's attorners. A amputer printout was also encloccd. In the cover letter, the ettorney sa j that the printout was "self explenator7" It showcc that the original T4.5 million (CASE %
N portion of the settlement monics) copositcdJuly I4,1988 hM almost cb;bicd to $ 9.696l23.14.
by Cocomber.30, t 988.1.ary emocnts of monty was ccming in, nuch more than could be explained by interest alone--but there was no explanation of where it was coming from or why, There was also a orintout listtre disbursements from the fund for the same pertod which shewod pe/ments to CASE beercmombers for current, es well as for pest, wert wtth CASIL Af ter consulting with counsel, we requesttd that he reply on our behalf. He did so in his letter of Apr1: 25, in whien he adviste CASE's etterneys that he representcd us in ecnncctfen with our request for informetton from CASE, which incluott all financtel tnformetton, es well as CASE's organizationel records and information en its xttvittes. He m&2 it clear that we wentcd to obtain cootes of the information rcquested, not simply the opportunity to inspct it.
Our atOrner did not receive a reply to his letter until almost thrm wwks later. In his
~
letter of May 15, CASE's attorne/ said that tho7eccids woulfonly beinado irdtlable for inspection, not for ccpying. This wes not acceptable to ys.
In his reply etcd May 19, our ettcener repeated cur cnstre to obtain, and cur rIgnt to heve, copies of all of the documents that we requestic. He also countercd CASE's attornWs claim that we would use this information improcerly, and cenicd that we hM cino anythtng "!nscurate, incomplete, out of context or misleating" inyrd to infcrmation that we alrar/ pcccccccd He -
~
retteratEd our estre to Insure that CASE ls true to its charf or and its expresscd public purposa.
Before we ( my huscend and I, ano our attcene/) went to CASE's office on June 9,1989 to revtew the tcuments, our attorne/ told us that CASE had finally egrecd to let us have copies. We f I4
! Plai n tif f s '
Exhibit J l
. . , Plai n tif f s '
Exhibit J 4
requestM a copy of every document that we revtewed. Some of thoz dxuments inclucbd the following:
End of the month financial reports to the Board of Dfrectors; A cash journal ( showing T-btlls and T-bill interest);
An expensa lot)er for 1968 and 1989 shewing peyments to consultants and attorne/s (including Mr. Gilmere, and perments for en untdentt(kd 'pflot proJoct"(also to Mr. Gilmore);
Peyroil recorcs for 1988 and 1989 (showing peyments to Mr. and Mrs. Ellis, and to Mrs.
Gre/);
A generel kdger; A bcck listing the dues-paying members from 1974 through June,1989,
~
A single typai shmt which contained only six names: Mr. and Mrs'Ellis, Mr. and tis."
,Gilmore, Mrs. Grey and her sca, which purportod to be tre list of all CASE members asof 6/7/89; Recap sheets of verlous ac: cunts; Minutes of the 4/15-4/16/89 CASE Board of Dlrwtcrs mmting; Minutes of the 3/29/89 CASE Board of Directors mating; Minutes of the February CMSE Boerd of Dtre: tors' conference call (including recently amenced and restated CASE Sy-Leus);
Minutes of the 1/31/89 CASE Boerd of Direc!ces' conference cell; Minutes of an 8/15/88 CASE Board of Dtrcctors' conference call (Including a acument entitled "Unentmous Consent of the Bmrd of Ofroctors in Ueu of Mmttng").
Minutes of the 6/14/88 CASE Board of Directcrs mwting; and Minutes of the 8/4/82 CKE Board of Otcectors meeting (wIth attachments),
15 Plai n tNIS '
E x.ilib ita,J
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Ehh! bit J 42 x
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We left the off t with CASE's promise that we would receive the =ptes thet we hM raquested shortly, but we never re Ivod them.
InsteM, we receivW e note from Mrs. Ellis c3ted June ! ?. Infcer:Ing us that our check (which I had melled earlier, following the surprtsing discovery on June 9 that we were no longon TonsideFW to be CASE members, apperently besN on a reviston of the by-laws by the Boer $1n, Febr Jery,19899 wiIch welisiidt'boditifdrmed about) would be retened to us unc: shad,
~~
s1nm our " request forNembership" had been rejectcd. We were tncsnse _ wpm remained members of CASE when we resigned from the Beard in July, es we had ex;lictly told Mrs. Ellis In our letter of August 1,196Sr And we wscaupset that,the/.woulaattempt to."munt us out" Dy'-
changing.tha r.:dca!!hout telling U97 in a letter cated two dWs leter, June 14, CASE's etterney informa: us thet CASE nx decickd not to provide us with the copies that we hM bcen promisa2. We wtre only of ferd copies of monthly summerlos of financial information, not those of the dtcuments tr.at we hM inspcctcc. Nor were we offer d copies of the minutes or other CASE records. In edition,our rmuest (cr detalled k 1 information on CASE's monitoring activities et the plant was den,ied.1 Our atterner continued to attempt to persuad3 CASE to release the ceples of the informatlon that we hW requested, but he was unsuccessful. Then, on July 7, CASE's ettceney sent our -
ettorney two financial reperts. In his cover letter , he occused us of relssing the computer printout to a U. S. Sanate subccmmittee (an allegation wnich was t untrue).
Since CASE had persistently refused to releem the Information (rd the ceples) -
volu'nterfly, we (tetacd to (fle suit to outeln them. Several other Icng-t!=e CASE members joined
- cur sult, wnich was filed by our attorne/ on July 18,1989.
Two C:r/s later we received from en outstoe sourco e copy of a CASE newsletter c$ttd July l
! 19, in it we, and thcca who had jotned our sult, were accused of conspirIq to take over the l
s 16 e
l ,.
f,. ,
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L Exhibit J i
organization. And, although our membership renewal check hM been refwd, others were urgd to send in their ducs Immodlately, it is new June,1990, eighteen months after we first asked CASE for information, and over a year since our attorney raquesttd that CASE provide us wIth copies of its fInanc!al recorcs, L orgenitational records, anc information on its activitics. Despite repeated attempts, we still have not received copies of ell of the informetton to which we are icgsily entlllai We still want all of the information; not just what the/ want to reiseso--and we still want copfes of It sll.
I firmhi believe that we have not bNn given the Information that we have repeated ly requested because of what we aircad/ know. The Boerd knows that we knew what went on in the settlement discusstons. Ther know that we esked questions that the other bocedmembers did not wish to answer about CASE's respenstbilities to its members and to the public. They knew that we know who was supposa1 to get money, and hcw much they were supscad to get. And the/ kncw thet we are the only 0063, bes1@s themselves, who know that--and mcre.
The operating ifcensa hearings were dtsmtsted almost two years ap PUC Docket 9300, the rate base casa on Comanche Peek, is currently unerwer--and CASE is not an intervenor._ We
. still do not know what CASE has mtually done with the settlement money x what the actual extent of its involvement is on the Operaticns Revtew Committw (CRC), or wna! its oversight role ovrr TUEC's implementation of the corrective acticn program at Comanche Peak has involvcc, or anything else CASE me/ be coing or plans to do.
The CASE Board clelms that we are no lonmr members; we emphatically disarf ee. We est this' Court to deny the CASE Board's epparent attempt to ceny us xcess to information to which we are legally entitied by claiming that we ere no Icnger part of the organizaticn.
17 Plai n tif f s
~~Exhibit J~~
- - e-Plaintif f s' Exhibit J As CME members, and as members of the publ10, wa :Sk this Court to crti?r CASE to immediately allcw us to inspect 3nd to cc;y all of the information end &cumente! ion to which we are It9511y entiticd "
f urther Aff f ant S&eth Not.
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Barbera N. Bolt n
$USE^R! SED AND SWCRN IO SEFORE ME, the undersigntd euth0. ity cn this the eg 4 ,,
1*/ cf June,1990.
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I J Gj,/)
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ii L-Notary \f ublic fcr the
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St:te of Texes l
Printed Name Of Notary Public:
. ~ - ~ ~ ~ ~ ~om p'/
Kk .e b My Commist,0n Expires: ) ('jT),, N:tyy Puthe State ;! Texas q w,sma-:m:s s~w - ~ - - ~ , -- >
18 l Plai n tif f s '
Exhibit J t

ML20086G738

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ML20086G738

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