1
BEFORE THE
U.S. DEPARTMENT OF LABOR
NORTHEAST REGION
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In the Matter of: :
:
OSCAR B. SHIRANI, :
:
Complainant, : Case No.: 2002-ERA-28
v. :
:
COMED/EXELON CORPORATION, :
:
Respondent. :
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U.S. District Court
Courtroom 1944-C
Dirksen U.S. Courthouse
230 S. Dearborn Street
Chicago, Illinois 60604
Tuesday,
December 17, 2002
The above-entitled matter came on for hearing,
pursuant to notice, at 9:15 a.m.
BEFORE: ROBERT J. LESNICK,
Administrative Law Judge
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APPEARANCES:
On behalf of the Complainant:
MICHAEL C. McDERMOTT, ESQ.
134 N. LaSalle Street
Suite 1410
Chicago, Illinois 60602
312-372-4550
On behalf of the Respondent:
SCOTT E. GROSS, ESQ.
DARREN R. REISBERG, ESQ.
Sidley, Austin, Brown, and Wood
10 South Dearborn Street
Chicago, Illinois 60603
312-853-7011
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Reporter: Stuart Karoubas Date: December 17, 2002
OALJ Case Name & Number: Oscar B. Shirani, 2002-ERA-28
WITNESS (FULL NAME) DIRECT CROSS REDIRECT RECROSS
Ross B. Landsman 13 30 37
Oscar B. Shirani 44
Walter Hahn 138
Ann Harris 145
David Helwig 174 213
Oscar B. Shirani 241
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EXHIBITS
EXHIBITS IDENTIFICATION RECEIVED WITHDRAWN REJECTED
ALJ 1 33
CX 1 49 51
CX 2 51 52
CX 4 120 135
CX 5 123 135
CX 6 126 135
CX 7 129 135
CX 8 245 266
CX 9 247 266
CX 14 20 38
CX 29 58 136
CX 32 264 266
RX 10 178 179
RX 11 180 192
RX 17 31 33
RX 26 175 176
RX 27 194 199
RX 28 199 204
RX 29 204 207
RX 30 208 209
RX 39 207 207
RX 46 39 42
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1 P R O C E E D I N G S
2 (9:15 a.m.)
3 JUDGE LESNICK: This is a proceeding arising out of
4 the Energy Reorganization Act, ERA hereafter, 42 U.S.C. Section
5 5851, and the regulations promulgated at 29 C.F.R. Part 24.
6 It is Oscar Shirani versus Exelon Nuclear, Case
7 Number 2002-ERA-28, pursuant to a Notice of Hearing, issued
8 October 8th, 2002.
9 My name is Robert J. Lesnick. I am the United States
10 Administrative Law Judge assigned to hear this case and make a
11 decision in this matter.
12 This case relates to a complaint filed by Mr. Shirani
13 on January 28th, 2002 with the Occupational Safety and Health
14 Administration of the US Department of Labor.
15 I will ask counsel for the employer to state his
16 name, address, including the area code and zip code. Proceed.
17 MR. GROSS: Scott Gross. Sidley, Austin, Brown and
18 Wood, 10 South Dearborn, Chicago, 60603.
19 JUDGE LESNICK: Thank you.
20 MR. GROSS: Phone number 312-853-7011.
21 JUDGE LESNICK: Thank you, Mr. Gross. And
22 Mr. Shirani, you are present today?
23 MR. SHIRANI: Yes, sir.
24 JUDGE LESNICK: And your counsel. Enter his
25 appearance, please.
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1 MR. McDERMOTT: Yes, Judge. Michael C. McDermott,
2 134 North LaSalle, Suite 1410, Chicago, 60602. Area Code 312-
3 372-4550.
4 JUDGE LESNICK: All right. We've had a number of
5 preliminary actions in this case. And I have accumulated a
6 file that is rather thick, about three or four inches.
7 However, let me say to both of you, assume that none
8 of this is in the record. Anything you wish to be in this
9 record for this matter you'll present to me today and the
10 following three days.
11 And it is a case that, in all of these whistleblower
12 cases that sometimes can involve some strong feelings between
13 individuals. I caution both sides to direct their comments to
14 the bench, not to each other, and to be civil in this matter.
15 If you aren't then I will see that you are, but I
16 caution you at the beginning, I know that tempers run high,
17 and, but I expect everyone to conduct themselves civilly. All
18 right. Any preliminary motions?
19 MR. GROSS: Not a motion, Your Honor, just a request.
20 JUDGE LESNICK: Yes.
21 MR. GROSS: Mr. McDermott and I have already
22 discussed this. We have a witness flying in today who we hope
23 to put on the stand this afternoon. And Mr. McDermott has
24 already indicated that he wouldn't have a problem with us
25 putting him on wherever we are in the proceedings just to get
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1 him finished.
2 JUDGE LESNICK: All right.
3 MR. McDERMOTT: And I think Mr. Gross is correct, we,
4 we've each talked about people coming in from distant places,
5 and I have someone flying in from California tomorrow morning
6 early.
7 And, and I'd hope Mr. Gross would extend the same
8 courtesy. And I have someone who's in today from Tennessee who
9 I'd like to make sure I get her testimony some time today.
10 We also have someone coming in from Canada, and I'd
11 like to get his testimony, as brief as it may be, sometime this
12 afternoon.
13 MR. GROSS: That's fine.
14 JUDGE LESNICK: All right. Okay. Thank you,
15 gentlemen. All right, Mr. McDermott, do you wish to give an
16 opening?
17 MR. McDERMOTT: I do. And I'm glad you gave the
18 precautionary statement about personal investment in issues of
19 this kind.
20 It's interesting to note that if you look out the
21 window to the south, less than five miles from here, you'll see
22 Stag Field. That occurred during my lifetime, I don't know how
23 old you are, Judge.
24 But the events that occurred at Stag Field, through
25 the work of Enrico Fermi, bring us to this place today. It is
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1 truly a Janus gift. It is a two-faced event in human history.
2 It's interesting to note that Webster's New World
3 Collegiate Dictionary has only this to say about Enrico Fermi.
4 It's Fermi, Enrico, 1901 - 1954, U.S. Nuclear
5 Physicist born in Italy.
6 It's no wonder our college students have an imperfect
7 understanding of what heats a kettle and what events surround
8 the heating of that kettle.
9 Professor Fermi and his colleagues and subsequent
10 scientists and subsequent engineers and subsequent good and
11 great minds produced for us a gift with enormous potential but
12 with enormous responsibility.
13 And anybody stumbling through the 1940s and anybody
14 who wants to read the newspapers today, the '40s are not dead.
15 But anybody stumbling through the 1940s comes to grips with how
16 you balance the public good and how you balance regulation of
17 an industry that has potential to harm and to help.
18 This is the story of Oscar Shirani, who has
19 approximately 20 years of experience, 21 years of experience in
20 this industry, and a person who, working for the Respondents,
21 had accelerated his capacity, had developed a reputation, had
22 had no remarkable downside until he hits a wall in 1997, with a
23 change in a corporate attitude in Respondent's corporation.
24 It's a story of what occurs between November of 1997 and
25 October of the year 2001.
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1 And I think we will be able to produce evidence
2 sufficient to support his claim as a, not whistleblower,
3 something I'd rather call an energy safety advocate. Thank
4 you, Judge.
5 JUDGE LESNICK: Thank you, Mr. McDermott. Mr. Gross,
6 do you wish to give an opening?
7 MR. GROSS: Your Honor, we will rely for the most
8 part on what we provide in our testimony and exhibits, as well
9 as the post-hearing memorandum.
10 I would like to point out a couple of things, though.
11 And I appreciate Mr. McDermott's brief opening, I'll keep it
12 brief as well.
13 I think, Your Honor, as we proceed through this
14 trial, you're going to get a good glimpse of what has been
15 going on with Mr. Shirani's career at Commonwealth Edison
16 Company.
17 And then, after October 2000, Exelon Nuclear, and
18 then Exelon Business Services Company, or BSC. Hopefully,
19 we'll be able to keep all those straight and get those sorted
20 out in terms of the corporate identities.
21 But what you will see, Your Honor, is, essentially
22 the bottom line, Mr. Shirani impugning the integrity of a lot
23 of people who did nothing but try to help him. And we will
24 have those individuals here explain what they did, how they did
25 it, and why they did it, for the sole purpose of helping
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1 Mr. Shirani achieve promotional aspirations.
2 This has nothing to do with any safety complaints in
3 nuclear, this has nothing to do with any concerns that
4 Mr. Shirani might have had and the type of audit work he did.
5 This has solely to do with his efforts to obtain
6 promotional opportunities, and when that did not pan out as he
7 liked, how he is now using this forum to impugn the integrity
8 of a lot of very good people. That will be what we will
9 present, and I think that will become evident throughout.
10 JUDGE LESNICK: Thank you, Mr. Gross. All right.
11 Mr. McDermott, you may proceed with your case.
12 MR. McDERMOTT: Thank you, Judge, I'd like to call
13 our first witness, a Mr. Ross Landsman, please. And I take it
14 we'd be joined in a motion to exclude witnesses.
15 JUDGE LESNICK: I don't see any need to, but if
16 that's something you're going to suggest, we'll need to review
17 it first.
18 MR. McDERMOTT: I don't know if I've never had a
19 hearing which allowed for witnesses to be present for a
20 opponent party or opponent witness testimony. I'd so move,
21 Judge.
22 JUDGE LESNICK: If you so move, then I, I do grant
23 the motion.
24 MR. GROSS: The only, the only request, Your Honor,
25 is that we have the opportunity, in addition to counsel, to
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1 have one company representative here for the party.
2 JUDGE LESNICK: Sure, sure.
3 MR. McDERMOTT: Is that --
4 MR. GROSS: Russ Bastyr.
5 MR. McDERMOTT: Well, is that person also a witness?
6 MR. GROSS: Yes, as is Mr. Shirani.
7 JUDGE LESNICK: Wait, how many folks is that? One
8 person?
9 MR. GROSS: Yes. One company representative, Russ
10 Bastyr.
11 JUDGE LESNICK: Yes, is that who's sitting next you?
12 MR. GROSS: No, this is counsel.
13 JUDGE LESNICK: Oh, all right.
14 MR. GROSS: And Felicia is counsel as well.
15 JUDGE LESNICK: Oh, all right. Yes, that's
16 appropriate. That one person, um-hum.
17 MR. McDERMOTT: The person is also a witness, Judge.
18 JUDGE LESNICK: I understand.
19 MR. McDERMOTT: The person was also Mr. Shirani's
20 supervisor during the period, for years.
21 JUDGE LESNICK: The motion --
22 MR. McDERMOTT: And a company, a company with 20 some
23 thousand individuals could, could find somebody other than
24 Mr. Bastyr.
25 JUDGE LESNICK: Well, I understand, but the motion
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1 for sequestration is actually not open to opposition. But also
2 well established that it allows each party to, to keep one
3 person in the room.
4 And that can be any designated company
5 representative, witness or otherwise. And often it is perhaps
6 the primary witness in the case. But I can't designate that
7 person as their representative.
8 MR. McDERMOTT: May I ask that he sit at the table?
9 JUDGE LESNICK: Well, actually that is appropriate.
10 MR. GROSS: That's fine.
11 JUDGE LESNICK: Now, what I don't know is what
12 facilities we have for individuals. Does our court reporter
13 know? Why don't we go off the record?
14 (Off the record.)
15 (On the record.)
16 JUDGE LESNICK: All right. There are no witnesses
17 present in the courtroom, save the representative for the
18 company and Mr. Shirani himself. And the witness is now
19 seated. And sir, could you raise your right hand?
20 (Whereupon,
21 ROSS B. LANDSMAN
22 was called as a witness by and on behalf of the Complainant,
23 and after having been first duly sworn, was examined and
24 testified as follows:)
25 DIRECT EXAMINATION
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1 MR. McDERMOTT:
2 Q Would you please state your name for the record?
3 A. Dr. Ross B. Landsman.
4 Q And Dr. Landsman, what is your trade or occupation?
5 A I work for the Nuclear Regulatory Commission in the
6 Chicago office. I'm an engineer.
7 Q And I take it you're a doctor as a Ph.D., is that
8 correct?
9 A That's correct.
10 Q And what is your Ph.D. in, sir?
11 A Civil Engineer.
12 Q From what university?
13 A IIT, Illinois Institute of Technology.
14 Q And when did you earn that degree?
15 A 1973.
16 Q And I take it you have a Master's degree?
17 A Yes.
18 Q From what institution, sir?
19 A The same school.
20 Q And a Bachelor's degree?
21 A Same school.
22 Q How did you get off campus? Do you know your library
23 has moved, I hope you know that.
24 A I haven't been on campus for a while.
25 Q But that's a sad event. In any event, how long have
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1 you been with the NRC?
2 A 23 years.
3 Q Were you employed anyplace before the NRC?
4 A I worked at Sargent and Lundy Engineers prior to that
5 for six years.
6 Q And were you employed anywhere prior to Sargent and
7 Lundy Engineering?
8 A Yes, just a very, smaller firms.
9 Q So it's, it's the case that you went to Sargent and
10 Lundy upon graduation, or upon completion of at least your
11 Master's degree, is that correct?
12 A No, I went there for, the job market was sort of bad
13 then, so I went to Sargent and Lundy.
14 Q What exactly is your position with NRC?
15 A I'm a Project Engineer in the Decommissioning Branch
16 of the Division of Materials.
17 Q And what is you do as a Project Engineer?
18 A I'm the Region Three Coordinator for Dry Cask
19 Storage, Dry Field Storage.
20 Q And when you say Region Three, what does Region Three
21 encompass, sir?
22 A The Midwest, more than, that's the easy way to look.
23 Q How many Regions are there in the NRC?
24 A Four.
25 Q And can you explain what dry cask storage is as it
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1 relates to your profession, or your job?
2 A All the nuclear plants have been generating spent
3 nuclear fuel all these years, and they ran out of storage room
4 in the pool.
5 And the Department of Energy hasn't opened up the
6 mountain they have out in the west. So they ran out of room.
7 So the NRC is allowing it to store it in dry cask at that plant
8 site until the mountain opens up.
9 Q And how long has the utility, the industry, the
10 creators been using dry casks for storage?
11 A I want to say since '95, I think, somewhere around
12 there.
13 Q Relatively recent?
14 A Yes.
15 Q Can you describe a dry cask, physically?
16 A It's a big garbage can, not a cask. It's a big steel
17 garbage can, that they weld the lid on.
18 Q Do you have any idea what the tonnage is?
19 A Oh, how much it weighs?
20 Q Yes.
21 A Loaded or unloaded?
22 Q Unloaded.
23 A I want to say 50,000 pounds.
24 Q And loaded, I take it it's loaded with liquid?
25 A Spent nuclear fuel.
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1 Q Spent nuclear fuel, and water, am I correct, or no?
2 A No, you drain the water out. So with the fuel it
3 weighs about a 100 thousand pounds.
4 Q Is there a principal manufacturer of dry casks?
5 A No, I think there's three left.
6 Q And who are the three?
7 A One is Holtec out in New Jersey, Transnuclear out
8 west, I can't remember what the other one is, we don't use the
9 other one in Region Three, so I'm not sure.
10 Q Is that your only responsibility with NRC at this
11 point, dry cask?
12 A Right now, yes.
13 Q That's a 100 percent of your time?
14 A Yes.
15 Q And in devoting your time, what is it you do, vis-a-
16 vis, dry cast storage?
17 A I make sure the utilities follow our regulations.
18 Q And again, those are the NRC regulations?
19 A Correct, in regards to the dry cask.
20 Q Are you familiar with Oscar Shirani?
21 A Yes.
22 Q When, if you recall, did you meet him?
23 A I think I met him years ago, but the latest time I
24 met him was at a Holtec user's group meeting.
25 Q Do you recall when that occurred?
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1 A It was November of --
2 Q November of 2000.
3 A Correct.
4 Q Okay. And you said it was a Holtec user's group
5 meeting?
6 A Right.
7 Q How many individuals would have been participating?
8 A I'd say a hundred.
9 Q All right. And a Holtec user would be a
10 representative from the utility?
11 A No, a Holtec user's going to be anyone who's using
12 their cask was at this meeting to learn the latest and greatest
13 about the cast.
14 Q And this --
15 A It's put on by the manufacturer, it's more of a
16 marketing tool, I guess.
17 Q Okay.
18 A But I was invited to attend.
19 Q And Mr. Shirani attended, I take it.
20 A That's correct.
21 Q Did Mr. Shirani do anything in a formal way at this
22 Holtec user's group meeting?
23 A Yes, one of things was he performed an audit previous
24 to that, and one of the questions, I don't what part of the
25 seminar it was at, he asked, he did an audit at Holtec.
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1 And there was a whole bunch of open items, or a whole
2 bunch of things that he found. And I think he was asking at
3 the meeting, again, it was two years ago. Why they weren't
4 closed yet, or what Holtec was doing about the issues.
5 Q So he wasn't on a dais as a formal presenter, I take
6 it.
7 A No, I don't think he was, no.
8 Q And did he entertain questions from people as well,
9 if you were to recall?
10 A I don't recall.
11 Q All right. Did you have occasion to speak with him
12 personally, that day?
13 A Afterwards, yes.
14 Q And what, if anything, did he say to you, and what,
15 if anything, did you say to him?
16 A I just asked him if I could get a copy of the report
17 and he said you've got to go through, I don't know if he said
18 it, I thought you had to go through official, at that time it
19 was Commonwealth Edison channels.
20 I think they were Common at that time, or they might
21 have been Exelon, I'm not sure. The times are vague, but, I
22 had to go through their licensing department or whoever
23 actually had to give me the report. The audits, I'm sorry.
24 Q And as again, the Holtec audit was the subject of his
25 discussion?
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1 A Correct. And I thought they sounded like there was a
2 lot of big items in there that I should know, that the NRC
3 should know about, that would make the casks suspect.
4 Q Was the --
5 A The casks that we were getting at Dresden. Dresden's
6 a power plant, and.
7 Q Let me bring that, bring you around to that. When
8 you attended this meeting in November of 2000, you knew, am I
9 correct, that Commonwealth Edison and/or Exelon was a user of
10 Holtec product, dry cast?
11 MR. GROSS: Your Honor, I'm going to object as to the
12 leading nature of the question. I'm not sure how far you're
13 willing to go on those types of questions, but this is.
14 JUDGE LESNICK: Well, I'll allow leading on your
15 basic foundation, and not controversial cases, or issues, or
16 facts. But I'm not sure again where we are or not. So as we
17 get deeper into the substance I would sustain the objection.
18 MR. McDERMOTT: You are sustaining it?
19 JUDGE LESNICK: Yes.
20 MR. McDERMOTT: All right.
21 BY MR. McDERMOTT:
22 Q In November of 2000, did Commonwealth Edison use
23 Holtec products?
24 A Yes.
25 Q And did they use Holtec products at specific sites?
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1 A They were using them at the Dresden power station.
2 Q At any other site that you knew of as a regulator?
3 A Commonwealth Ed?
4 Q Yes.
5 A No, they were only using them at Dresden.
6 Q Do you know how many dry casks were being in, were in
7 use, in November of the year 2000 at Dresden?
8 A In November of 2000 I don't think they used any yet.
9 They were just still receiving them. I think they were in the
10 fabrication process.
11 Q And you knew that from your work?
12 A And --
13 Q And your assignments?
14 A Yes. That's why I was anticipating.
15 Q You were doing your job?
16 A I thought I was.
17 Q Thank you. I'll ask you to look at what has been
18 previously marked and provided to us by the Respondents. It is
19 Complainant's Exhibit Number 14.
20 (Whereupon, the document referred to
21 as Complainant's Exhibit No. 14 was
22 marked for identification.)
23 BY MR. McDERMOTT:
24 Q I'm going to hand it to you in loose form, making it
25 a little easier for you to go through. Mr. Landsman, take
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1 just a minute.
2 A Yes.
3 Q Can you tell the Judge what that document is?
4 A That, this appears to be the audit that Oscar was
5 talking about at the meeting.
6 Q And do you know who authored that audit?
7 A Oscar was on the team, it appears, that did the
8 audit. How's that?
9 Q All right.
10 A I don't know, there was a few people on the audit, I
11 don't know their names.
12 Q Right.
13 A But Oscar, I think, was part of the team.
14 Q There's a cover letter, just as it came to us from
15 the utility, that is directed to you, is that correct?
16 A Not this letter.
17 Q All right, what, can you, have you ever seen that top
18 letter?
19 A This letter that you gave me that's on top is from
20 Oscar to U.S. Tool and Die.
21 Q No, I mean it's dated when?
22 A August 4th.
23 Q All right. And it is a cover letter then for the
24 actual audit report?
25 A That's what it appears to be.
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1 Q And did you receive a copy of that, as well?
2 A Yeah, yes.
3 Q All right. And there was a separate cover letter I
4 take it that transmitted that particular document into your
5 hands, am I correct?
6 A From Commonwealth Edison Company, correct.
7 Q Is it, you know, did you have a chance to read the
8 audit at some time?
9 A Yes, I did, after I received it.
10 Q Based upon your skill, and training, and experience,
11 did you find any issues that were significant and troublesome
12 in the audit?
13 A Yes, I thought the, most of the issues were very
14 troublesome, and I tried to get the Regional people, which I am
15 in the NRC, we don't do, what's called vendor audits. Holtec
16 would be a vendor, they're supplying --
17 Q I understand.
18 A All right. So I had to call my associates in, out of
19 the Washington D.C. office. They're the ones who do the vendor
20 audits and I tried to get them to go out here to see what was
21 going on.
22 Because they never were out there while Holtec was
23 fabricating any casks. They were just out there to do a paper
24 audit earlier and make sure they had a Quality Assurance
25 program.
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1 So not if they were under, they were building some.
2 And it appeared from this audit that they were out of control,
3 I wanted the NRC to go there and do an inspection.
4 Q And when you say they were out of control, who do you
5 mean?
6 A Just be careful with the word.
7 Q That's fine.
8 A Holtec hired U.S., Holtec, I got to get it, Holtec is
9 an engineering company, they don't do any fabrication. They
10 subcontracted to U.S. Tool and Die to build a cask. That
11 should be on the record, so somebody.
12 It was U.S. and, U.S. Tool and Die has the jargon in
13 the industry as a Ma and Pa Kettle organization and they don't
14 have a Quality Assurance program. So Holtec had an approved QA
15 program from the NRC.
16 They were, they were supposed to watch U.S. Tool and
17 Die to make sure they made the cask according to the specs that
18 the NRC approved.
19 And according to this audit, they were not. They
20 were not following the drawings like they were supposed to.
21 Q And in your opinion, those were serious issues?
22 A I thought so, in my opinion.
23 Q Would you, when you read this audit did it appear
24 that the audit was still open?
25 A Yes it was open. Not the audit, the audit findings
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1 were still open.
2 Q Findings were still open, the audit was completed?
3 A Correct, but the issues were still out there and I
4 thought that's what Oscar was asking at this meeting about, was
5 the resolution to the issue.
6 Q Did you have occasion to, to call Mr. Shirani
7 subsequently?
8 A I don't know if he called me, or I called him, I'm
9 not sure.
10 Q Did you, did you have an opportunity to talk to him
11 on the telephone after meeting with him and after receiving
12 the, the audit report?
13 A Yes, I did.
14 Q What, if anything, did you say to him, and what, if
15 anything did he say to you?
16 A I'm not sure which phone call. I talked to him a few
17 times after I got this. That's when I found out there was
18 another audit done at, Holtec hired another fabricator called
19 Omni, and they were also building part of the cask, so, for
20 Dresden.
21 Q All right.
22 A So I found out there was another audit, so I had to
23 get back to the licensing people. And he said there was a lot
24 of problems at Omni. So I wanted to read that audit since
25 that's, the equipment they were fabricating was also getting
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1 shipped to Dresden.
2 So I had to get back to the licensing, whoever, at
3 Edison, to get a copy of that audit. Which I got a copy of
4 also, which.
5 Q Did you have a chance to read that audit?
6 A Yeah, those findings I thought were worse than the
7 U.S. Tool and Die audit. They were so bad that Holtec no
8 longer uses Omni as a fabricator. Now I don't if it was
9 because of this audit, or their own audit.
10 But they don't use them anymore to build anything.
11 They finished building what they were building for them, and
12 then they don't use them anymore.
13 Q Did, did Oscar participate in that audit as well?
14 A Yes.
15 Q Go ahead.
16 A Well, you asked me if I asked him anything, I don't
17 know if it was for that audit or the U.S. Tool and Die audit, I
18 think it was, I don't know which audit came first.
19 But it was the second audit I think, that, I don't
20 know if it was Omni, or that one. I remember asking him on the
21 phone, Oscar why don't you stop the job?
22 They were, I don't know if it was Omni or that one,
23 they were so bad, the audit findings, I thought, I asked Oscar
24 on the phone why didn't you stop the job?
25 Q And what did he say to you?
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1 A He said I was afraid of my job, that's why he didn't
2 stop the work. I remember that one, okay. And I think, I
3 don't know if it was after that phone call or one of the other
4 phone calls that I went to my, we have an Allegations
5 Coordinator at work.
6 And I said, gee, I just talked to a gentlemen who
7 said there were some bad findings, and he didn't stop the work.
8 Is that considered, I think I might have got my, my
9 attorney involved just to make sure that we weren't, you know,
10 in the middle of an allegation, and somebody was saying, no, as
11 long as he didn't actually come to you and say, you know, that
12 there was an allegation.
13 It's really not an allegation. So, but I remember
14 bringing it up at work that, you know, this guy found all, or
15 this audit, Oscar wasn't the only one on that audit, either.
16 On all this stuff, and he was afraid to stop them, because he
17 was afraid he'd lose his job.
18 Q Now, you know that Oscar did subsequently lose his
19 job?
20 A Correct.
21 Q Do you have an opinion as to why he lost his job?
22 MR. GROSS: I'll object, calls for a legal
23 conclusion, and fact conclusions, and there's no foundation
24 whatsoever that this gentleman has any knowledge as to how
25 Mr. Shirani lost his job.
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1 JUDGE LESNICK: Do you want to respond,
2 Mr. McDermott?
3 MR. McDERMOTT: I do.
4 BY MR. McDERMOTT:
5 Q You deal with people who are similarly situated to
6 Oscar in various utilities, am I correct?
7 A That's correct.
8 MR. GROSS: I'll object as -- Your Honor.
9 JUDGE LESNICK: Well, I'll sustain the earlier
10 objection but let him proceed on this track.
11 MR. McDERMOTT: Thank you, Judge.
12 BY MR. McDERMOTT:
13 Q And you're a Ph.D. engineer, correct?
14 A Correct.
15 Q And you know what engineers do when they do auditing
16 work within utilities, correct?
17 A Correct.
18 Q And you know the ponds within which they have to
19 swim, correct?
20 A Correct.
21 Q And you know fear when you hear it, correct?
22 A Correct.
23 Q Is it common for an engineer to feel pressure from
24 management when they're doing Quality Assurance audits?
25 MR. GROSS: I'll object, lack of foundation, vague,
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1 and irrelevant.
2 JUDGE LESNICK: I think it is, Mr. McDermott. You
3 can try another approach, but not that one.
4 MR. McDERMOTT: All right.
5 BY MR. McDERMOTT:
6 Q Did you ask anybody else at Commonwealth Edison or at
7 Dresden specifically to follow up on what you saw as
8 troublesome in, troublesome in this Holtec, in this Omni, I'm
9 sorry, U.S. Tool and Die and Omni, Holtec audits?
10 A Yes, I did.
11 Q And what, if anything, did you learn?
12 A It was the people at Dresden who were in charge of
13 the dry cast work on the, after I read this Omni audit, I
14 remember going to them and asking them, why don't you do
15 something about it?
16 This is, you know, it's your company. The
17 equipment's coming in here, and it's defective. And there was
18 a, I hate to throw another term on the stand, but they were
19 writing numerous condition reports on-site of the equipment
20 showing up, that it was defective.
21 It's just the way they document it when it comes
22 on-site. It's like writing tickets. On everything that was
23 coming in from Omni was not right. And they had to send stuff
24 back, and it was being rebuilt.
25 And even the stuff from Holtec, they had to ship a
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1 lot of things back. It was being rebuilt, they had to machine
2 it on site. I said, why are you putting up this? This is
3 crazy.
4 And they said because the Purchasing Department is
5 controlling this, and the stuff's coming. We can't stop it,
6 and we'll go to the bottom of the list, and we won't get our
7 equipment when we need it.
8 So they were just putting up with it. This is when I
9 also called my people in Washington and tried to get them to do
10 something, but they didn't do anything, either.
11 Q Did the site people, the Exelon and/or ComEd site
12 people tell you that they, they were the ones who went to Oscar
13 Shirani and asked him to conduct the audits?
14 A No.
15 Q In your own professional opinion should the public
16 know about this kind of conduct as it applies to nuclear
17 safety? I mean, you've just, you've just given testimony with
18 respect to the people at Dresden telling you that they can't do
19 anything about these defective products that are coming in.
20 You've told us what dry cast storage is. I take it
21 that's an issue of public safety, am I correct?
22 A That's correct.
23 Q Does the public have a right to know about these
24 things?
25 A I try to make them aware.
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1 Q Is that part of your job?
2 A Yes.
3 Q And I take it from your testimony because you do not
4 do vendor audits the people in the NRC who do vendor audits
5 were not interested in the issues you brought to them, is that
6 correct?
7 A That's correct.
8 Q I have no other questions.
9 JUDGE LESNICK: Mr. Gross, you may cross examine.
10 MR. GROSS: Thank you, Your Honor.
11 CROSS-EXAMINATION
12 BY MR. GROSS:
13 Q Mr. Landsman, my name is Scott Gross. I'm the
14 attorney for the Respondents. I'd like to ask you a few
15 questions about that November 2000 Holtec meeting where you had
16 a conversation with Mr. Shirani.
17 When you talked to him at that meeting, that was one
18 conversation at the meeting?
19 A The meeting went on for days, I can't say if it was
20 one, or.
21 Q When you had the conversation within which you
22 requested a copy of the audit, did you approach Mr. Shirani to
23 make that request, or did he approach you, do you recall?
24 A No, I do not recall.
25 Q You did, in fact, receive a copy of that audit,
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1 correct?
2 A Correct.
3 (Whereupon, the document referred
4 to as Respondent's Exhibit No. 17
5 was marked for identification.)
6 BY MR. GROSS:
7 Q And let me show you what is marked as Respondent's
8 Exhibit 17.
9 MR. GROSS: And, Your Honor, I have prepared a binder
10 of all the exhibits that I thought may be easiest to use.
11 JUDGE LESNICK: All right, thank you. I appreciate
12 it.
13 BY MR. GROSS:
14 Q Does that letter in Exhibit 17 represent the
15 transmittal letter of the audit that you requested from
16 Mr. Shirani at that meeting?
17 A Yes, it appears to be, yes.
18 Q And you received the audit within about two weeks
19 from your request, correct?
20 A Okay, yes.
21 Q You're not sure?
22 A Well, I'm looking at the date, yeah, okay, I'll
23 agree.
24 Q Have you made any other requests of audits from
25 Commonwealth Edison Company that is vendor or supplier audits?
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1 A Yes, as I just stated, the Omni audit.
2 Q And did you receive a copy of that one, as well?
3 A Yes.
4 Q Any other that you recall?
5 A No, those are the only two I knew that were conducted
6 of the fabricators that I was interested in at Dresden.
7 Q You indicated that after you had had a phone
8 conversation with Mr. Shirani you discussed with someone,
9 possibly an attorney with the NRC, as to whether this might be
10 an allegation, is that correct?
11 A The Allegation Coordinator, so, yes.
12 Q Anyone else who you talked to?
13 A And the Region, yeah, there's a, there's a person
14 that's in charge of that.
15 Q And your understanding was the decision was made not
16 to take any action?
17 A Correct, at that time.
18 Q At that time. You also indicated you had raised
19 issues in Washington about the Dresden dry casts.
20 A That's correct.
21 Q Sometime later in 2000?
22 A Or at the same time, roughly around --
23 Q Or in 2000?
24 A November 2000, November, December 2000.
25 Q And the people in Washington were your superiors or a
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1 different part of the NRC, or?
2 A No, it's a different, it's the Spent Fuel Project
3 Office at the, at headquarters, and they do the vendor audits.
4 Q And they decided to take no action on your concerns?
5 A I couldn't get them excited. They went later on
6 though, a year later, or a year and-a-half later.
7 MR. GROSS: Your Honor, we move to admit Exhibit 17.
8 JUDGE LESNICK: Any objections?
9 MR. McDERMOTT: No objection, Judge.
10 (Whereupon, the document referred
11 to as Respondent's Exhibit No. 17
12 was received into evidence.)
13 JUDGE LESNICK: Let me note for the record
14 Plaintiff's exhibits will be marked as CX, and Employer's as
15 EX.
16 I've marked the Complainant's pre-trial as ALJX 1.
17 (Whereupon, the document referred
18 to as Administrative Law Judge
19 Exhibit No. 1 was marked for
20 identification.)
21 JUDGE LESNICK: Do we have a pre-trial copy from the
22 Employer?
23 MR. GROSS: I can get one, Your Honor.
24 JUDGE LESNICK: All right, and I'll mark that as ALJ
25 2. And this binder is, did you say 17?
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1 MR. GROSS: Exhibit 17 is one you just admitted into
2 evidence.
3 JUDGE LESNICK: Okay, and that's been marked in this
4 binder. Let's go off the record.
5 (Off the record.)
6 (On the record.)
7 JUDGE LESNICK: On the record.
8 BY MR. GROSS:
9 Q Mr. Landsman, in your position as, position with the
10 NRC, do you have an understanding as to what employees in the
11 nuclear till of these obligations are to report safety
12 concerns?
13 A I think I do.
14 Q And what do you understand an obligation to be?
15 A They're supposed to report.
16 Q To who?
17 A To their supervisors, or to, or if they're not paying
18 attention, or if they're not listening or doing anything, they
19 have, they can go to the NRC then.
20 Q And do you believe the individuals who are employees
21 in the nuclear industry who have a safety concern should go to
22 the NRC?
23 A If they're not getting satisfaction from their
24 management.
25 Q Are you familiar with the requirements of the
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1 regulations that relate to employees' obligations to report
2 safety concerns?
3 A Can I quote them? No.
4 Q I'm not asking if you can quote them. I'm just
5 asking if you're familiar with them, generally?
6 A Yes.
7 Q And is it your understanding that an employee in the
8 nuclear industry's obligations arise in part from those
9 regulations?
10 A Okay.
11 Q I asked you, sir, yes or no?
12 A Yes.
13 Q Thank you. And if an employee feels that they raised
14 a safety concern to a supervisor, and they're not getting
15 satisfaction, do you believe an employee has an obligation to
16 go to a higher level to report that concern?
17 A An obligation?
18 Q Yes.
19 A Or a, I wouldn't call it an obligation.
20 Q What would you call it?
21 A Depends how much trouble he wants to raise in his
22 organization. Or if he comes to the, we have resident
23 inspectors at the site, or he can go talk to the NRC.
24 Q Or if an employer has an Employee Concerns Program,
25 an employee would have an obligation to raise a concern there,
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1 as well?
2 A In my experience, those are usually useless.
3 Q Usually useless?
4 A Yes.
5 Q Let me ask you how you are here today. Were you
6 subpoenaed to attend today?
7 A I think so.
8 Q Did you get a copy of this subpoena yourself?
9 A I don't think so, I, they were working through my
10 attorney.
11 Q And are you aware of whether anyone directed you to
12 be here today?
13 A I'm pretty sure there was a subpoena of, to my
14 headquarters office.
15 Q You never saw it yourself?
16 A No.
17 Q And did anyone in your office, supervisor or
18 otherwise, tell you that you needed to be here pursuant to
19 subpoena?
20 A Bruce, I'm asking for help.
21 Q If you recall?
22 A No, I don't recall.
23 Q I have no further questions.
24 JUDGE LESNICK: Mr. McDermott?
25 MR. McDERMOTT: Yes, Judge.
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1 REDIRECT EXAMINATION
2 BY MR. McDERMOTT:
3 Q Would the audit that you identified as our Exhibit
4 Number 14, and Judge, now that I know you're marking this as
5 C1, is that correct?
6 JUDGE LESNICK: Yes.
7 MR. McDERMOTT: C1. And you're going to mark it, so
8 I don't have to?
9 JUDGE LESNICK: I'd prefer if you do.
10 MR. McDERMOTT: Sure. The difficulty is it has
11 their, their inventory code number, then my number, now it says
12 C1.
13 JUDGE LESNICK: Okay.
14 MR. McDERMOTT: So it, it's going to be all over it.
15 I'll put it, put it --
16 JUDGE LESNICK: Let's see what is on there, let me
17 just look so I can.
18 MR. GROSS: Can we go off the record for a second?
19 JUDGE LESNICK: Sure.
20 (Off the record.)
21 (On the record.)
22 JUDGE LESNICK: Can't do two things at once. All
23 right, back on the record. Off the record we discussed how to
24 mark the exhibits. In the pre-hearing report by the
25 Complainant, exhibits were tentatively marked.
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1 We'll, we will stay with those numbers. So they may
2 come in out of order, and that's fine. This first exhibit has
3 been previously marked as 14, it will remain so. It had been
4 identified, but just offered now. Any objection?
5 MR. GROSS: No, Your Honor.
6 JUDGE LESNICK: All right. Then Complainant's
7 Exhibit 14, marked as CX 14 will be admitted. Proceed.
8 (Whereupon, the document referred
9 to as Complainant's Exhibit No.
10 14 was received into evidence.)
11 BY MR. McDERMOTT:
12 Q And now we get to how the best laid plans of mice and
13 men. I'm going to ask you, Mr. Landsman, to look at what is
14 tendered and is now finally numbered today, as I see for the
15 first time, as Respondent's Exhibit Number 46.
16 And it would be, I would, you know, I guess it's C,
17 it's C, I don't know what it is now.
18 MR. GROSS: RX.
19 JUDGE LESNICK: Was it identified in the pre-hearing?
20 As what?
21 MR. GROSS: Respondent's Exhibit 46.
22 MR. McDERMOTT: It was Respondent's.
23 MR. GROSS: And we can stick with that.
24 JUDGE LESNICK: We can stick with that.
25 MR. GROSS: Yes.
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1 MR. McDERMOTT: And if we can, I couldn't find it in
2 the pre-hearing, that's all.
3 MR. GROSS: It is.
4 JUDGE LESNICK: Fine.
5 (Whereupon, the document referred
6 to as Respondent's Exhibit No. 46
7 was marked for identification.)
8 THE WITNESS: Do you want me to read it?
9 BY MR. McDERMOTT:
10 Q Yes, please.
11 A The whole thing?
12 Q Well, let me direct you, page, have you ever seen
13 this document before, or a document like this before?
14 A No.
15 Q From Commonwealth Edison or from Exelon?
16 A Not that I can recall.
17 Q All right. I'll direct your attention to page two.
18 I'm sorry, let me bring you back to page one. This has to do
19 with the Holtec DSQG audit of U.S. Tool and Die, am I correct?
20 As best as we can see?
21 A That's what it appears to be.
22 Q Directing your attention to page two, the second full
23 paragraph, would you, it's entitled 'Corrective Actions to be
24 Taken.' Could you take a moment and read that paragraph?
25 A Okay.
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1 Q Specifically, and for the record, one sentence in
2 that paragraph is, 'the subject findings were thoroughly
3 evaluated and all issues were resolved satisfactorily during
4 the audit by the team not to have any impact on the Dresden
5 Station Unit 1 Dry Storage Cask loading.' Can that be true?
6 A That depends on the date of this.
7 Q The date of this is 8/14/00.
8 MR. GROSS: I'll object as to the date he's
9 indicating, that's not accurate at all.
10 JUDGE LESNICK: Well, why don't if we get agreement
11 on it. The status due date is 8/21. Where does 8/14 come
12 from, Mr. McDermott?
13 MR. McDERMOTT: I'm looking at 8/14 as being the date
14 that, on page three, I'm sorry, it's 8/4.
15 JUDGE LESNICK: I see a discovery date 8/4.
16 MR. McDERMOTT: Yes.
17 JUDGE LESNICK: Exempt date 8/4. Is there any
18 problem with that, Mr. Gross?
19 MR. GROSS: Well, not as to what you're describing.
20 But there are a lot of dates in 2001, as well. And there's no
21 indication as to the date that particular entry was put in
22 there. And Mr. Landsman said he's never seen it before.
23 JUDGE LESNICK: Well, why don't you question him
24 further, Mr. McDermott.
25 MR. McDERMOTT: Yes, Judge.
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1 BY MR. McDERMOTT:
2 Q I'll ask you to look at page number four, the very
3 last paragraph, the bottom paragraph, above the, the insignia
4 supervisor, Russell Bastyr, date 8/4/2000. And it's proposed,
5 it's kind of a proposed solution.
6 A Okay.
7 Q All right. The final sentence there is strikingly
8 identical to the prior sentence, and that is the subject
9 findings were thoroughly evaluated and all the issues resolved
10 satisfactorily during the audit by the team not to have any
11 impact on the Dresden Station Unit 1 Dry Storage Cask loading.
12 And it is followed by, again, the supervisor,
13 Mr. Bastyr, 8/4/2000, and it's EX 8 dash 343 dash 5648,
14 Department SES. Can that statement possibly be true on
15 8/4/2000, in light of your reading the audit report of
16 Mr. Shirani's?
17 A No, it cannot be true.
18 Q Thank you. I have no other questions.
19 JUDGE LESNICK: Is that document now offered?
20 MR. McDERMOTT: Yes, Judge. We're offering it.
21 JUDGE LESNICK: And I presume no objection from --
22 MR. GROSS: No objection.
23 JUDGE LESNICK: I will admit that document. You can
24 keep that, because I'm marking the Employer's copy, and I
25 presume by doing that Employer's Exhibit Number is appropriate,
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1 provided there is no difference whatever between those
2 documents.
3 So the official document will be Employer's Exhibit
4 46.
5 (Whereupon, the document referred
6 to as Respondent's Exhibit No. 46
7 was received into evidence.)
8 MR. GROSS: I have no follow-up questions, Your
9 Honor.
10 MR. McDERMOTT: Thank you, Mr. Landsman.
11 JUDGE LESNICK: Mr. Landsman, you're excused.
12 THE WITNESS: Thank you, sir.
13 JUDGE LESNICK: You may step down.
14 MR. McDERMOTT: May I step out to see if my --
15 JUDGE LESNICK: Yes, let's take a five minute recess.
16 (Whereupon, a short recess was taken.)
17 JUDGE LESNICK: Back on the record.
18 MR. McDERMOTT: We're back on the record, and I'd
19 like to call Mr. Shirani.
20 JUDGE LESNICK: All right.
21 MR. McDERMOTT: Mr. Shirani, please have a seat.
22 MR. GROSS: Your Honor, may I make a quick procedural
23 point?
24 JUDGE LESNICK: Sure.
25 MR. GROSS: I just wanted to request, we have
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1 received copies of the subpoenas of Ms. Harrison and Mr. Hahn.
2 To the extent there are any other subpoenas, we have never
3 received them and we would ask that we receive a copy of them.
4 JUDGE LESNICK: Okay.
5 MR. McDERMOTT: And they, those are in fact the
6 subpoenas that are live, and I have the originals and I will
7 ask you sometime during the proceedings to sign them.
8 My instructions from the NRC Chief Counsel's office
9 in Washington was that they were not going to honor a subpoena,
10 they gave me the words to put in the subpoena and I had to
11 submit a separate affidavit.
12 Now, if he wants to see all of my correspondence with
13 the Chief Counsel's office at the NRC, I'll certainly make it
14 available to him. That's what brought Mr. Landsman here.
15 There is a subpoena copy out there. But it's in the Deputy
16 Chief Counsel, Charles Mullins' file.
17 JUDGE LESNICK: All right. Well that's an issue for
18 you all, I mean, to raise and put in. My only concern with the
19 subpoena is whether or not there is some witness who doesn't
20 choose to appear.
21 MR. McDERMOTT: Right, and --
22 MR. GROSS: I understand. Okay.
23 JUDGE LESNICK: You know, and then I get involved.
24 MR. McDERMOTT: Right.
25 JUDGE LESNICK: Otherwise, the whole process, in
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1 fact, has been set up, as you know, to be accessible through
2 the internet and for you all to proceed. And again, we only
3 get involved in controversy.
4 But all right. But I'll be here to make, if you wish
5 to make a record on that point later. And at this point,
6 Mr. Shirani, would you please raise your right hand?
7 (Whereupon,
8 OSCAR B. SHIRANI
9 was called as a witness by and on behalf of the Complainant,
10 and after having been first duly sworn, was examined and
11 testified as follows:)
12 JUDGE LESNICK: You may proceed to question the
13 witness.
14 MR. McDERMOTT: Thank you, Judge.
15 DIRECT EXAMINATION
16 BY MR. McDERMOTT:
17 Q Would you state your name and spell your name, first,
18 middle, and last name completely for the court.
19 A Oscar B. Shirani, O-s-c-a-r, B, S-h-i-r-a-n-i.
20 Q And your residence address, Mr. Shirani?
21 A 21 West 704 Buckingham Road, Glen Ellyn, Illinois,
22 60137.
23 Q And how long have you resided there?
24 A 12 years.
25 Q All right. Are you currently employed?
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1 A No, no sir.
2 Q Are you currently selling your services in any manner
3 or form?
4 A I'm trying to do some consulting.
5 Q And have you been able to get some consulting work?
6 A For the last six weeks I've been helping another
7 company writing their Quality Assurance program. And helping
8 them to get out of some audit findings that they were cited by
9 another company.
10 Q All right. You, you were employed by Commonwealth
11 Edison, is that correct?
12 A Yes.
13 Q What was your start date with Commonwealth Edison?
14 A May 21st, 1990.
15 Q And how old were you on that date?
16 A I'm 46 now, so minus 12.
17 Q 34, right?
18 A 34, yes.
19 Q And what is your trade or occupation?
20 A I have a Civil Engineering Bachelor of Science and
21 Master's Degree, in Civil Engineering. And I have been
22 involved with the civil structural design analysis, and
23 mechanical structural seismic analysis, weak link analysis,
24 stress analysis, and, for 14 years.
25 And in addition, I have seven years of Quality
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1 Assurance audit experience --
2 Q Now, in May of 1990 when you joined Commonwealth
3 Edison, were you recruited to a position?
4 A No, I did apply for the position.
5 Q Who had the final say in your hire?
6 A Mr. Tom Maiman.
7 Q Can you spell that last name?
8 A M-a-i-m-a-n.
9 Q And what was Mr. Maiman's title in 1990?
10 A I believe he was Executive Vice President of the
11 Nuclear Operation Department at that time was called NOD.
12 Which later became NGG, Nuclear Generation Group.
13 Q And, when, did that title remain the same during your
14 tenure at Commonwealth Edison, then Exelon, his title, that
15 person's title?
16 A I'm not sure, he could have gone up the ladder, or,
17 I'm not sure. But I think that's the highest level before you
18 become President.
19 Q That's the person in charge of generation?
20 A The nuclear, right.
21 Q Nuclear generation?
22 A Yes.
23 Q That's the person who hired you?
24 A Yes.
25 Q All right. Did you have experience in energy
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1 production prior to 1990?
2 A Yes, I was --
3 Q What was it?
4 A I was working ten years for architect engineering
5 company, one of the largest in the world, called Stone and
6 Webster Engineering Corporation, headquartered in Boston,
7 Massachusetts. I worked for them almost ten years.
8 Q And what did you do for Stone and Webster?
9 A I was performing structural design analysis for the
10 structures, components, and supports.
11 And I was also writing generic solutions, procedures,
12 code interpretation, I was also reviewing their final license
13 submittals to the NRC as I, I was qualified as the independent
14 reviewer of the design analysis.
15 And I served in five different nuclear power plants.
16 Q Where were they, if you remember?
17 A Yes. The first one I went to, Surry, S-u-r-r-y,
18 Nuclear Power Plant in Virginia, owned by VEPCO, Virginia
19 Electric Power Company.
20 And after that, I went to another power plant in, for
21 VEPCO again, which was North Anna Power Plant. They are just
22 like about a hundred miles away from each other.
23 Shortly after I came back to Boston, ad they sent me
24 to Millstone Nuclear Power Plant, Millstone Number Three, which
25 was under the construction. And I was there for about two
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1 years.
2 Q And where was that located?
3 A That was Millstone, Waterford, Connecticut.
4 Q All right.
5 A Next to the submarine stations. And then two years
6 later, the headquarter called me to go to Beaver Valley Nuclear
7 Power Plant, working for Duquesne Light and Power. I believe
8 now, they sold it to First Energy.
9 Q And where was that located?
10 A That's in Beaver, Pennsylvania. After I left the
11 Beaver Valley Nuclear Station, I was called again by Boston
12 headquarter to go to Comanche Peak Nuclear Power Plant, in Glen
13 Rose, Texas. Working for Texas Utilities.
14 Q And what years were you at Comanche Cheek?
15 A Comanche Peak.
16 Q I'm sorry, Peak.
17 A From 1986 time frame, until end of 1989. Almost,
18 almost three years. Then shortly after, I left Stone and
19 Webster, and I joined Westinghouse in Richland, Washington. I
20 was --
21 Q The state of Washington?
22 A State of Washington. I was the Structural Analyst,
23 and I was training their engineers and their construction
24 people, and helping them with the structural analysis.
25 Q Now, these are all related to the nuclear industry,
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1 correct?
2 A Yes, sir.
3 Q For ten years?
4 A Ten years, right.
5 Q I'm going to ask you to, you're the Complainant in
6 this matter, am I correct?
7 A Yes.
8 Q And just to, to get certain perfunctory things out of
9 the way, we've marked this as our Exhibit Number 1.
10 (Whereupon, the document referred
11 to as Complainant's Exhibit No. 1
12 was marked for identification.)
13 BY MR. McDERMOTT:
14 Q That is a copy, am I correct, of your complaint? Am
15 I correct?
16 A Yes.
17 Q All right. And, that's the document that, that
18 brings us here today, am I correct?
19 A Yes.
20 MR. McDERMOTT: I'd like to offer into evidence,
21 Judge, so we can make sure --
22 JUDGE LESNICK: Any objections?
23 MR. GROSS: Your Honor, we're going to offer a
24 different version that's actually signed and executed. I don't
25 know if we want to use that instead, but I have no objection to
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1 this document.
2 MR. McDERMOTT: Just hold on to it. We're bringing
3 it into -- anyway.
4 JUDGE LESNICK: Okay.
5 MR. GROSS: And I object to the extent it's used in
6 any way to bring into evidence as facts anything that's stated
7 in the complaint.
8 MR. McDERMOTT: I have not intention, intention to
9 that. At whatever conferences I asked you, and inquired if you
10 had seen the complaint. And you said I'm sure it's going to
11 come in as an Exhibit, and I said, fine.
12 MR. GROSS: Right.
13 MR. McDERMOTT: And that's --
14 MR. GROSS: And does that have that --
15 JUDGE LESNICK: All right. And to, and to that
16 consideration it, again, the facts stated in here have to be
17 shown.
18 MR. McDERMOTT: Correct, by this case.
19 JUDGE LESNICK: But you represent that this a, this
20 is a copy no one's signed?
21 MR. McDERMOTT: Correct.
22 JUDGE LESNICK: This is the actual complaint?
23 MR. McDERMOTT: Right.
24 JUDGE LESNICK: All right.
25 MR. McDERMOTT: Thank you, Judge.
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1 (Whereupon, the document referred
2 to as Complainant's Exhibit No. 1
3 was received into evidence.)
4 (Whereupon, the document referred
5 to as Complainant's Exhibit No. 2
6 was marked for identification.)
7 BY MR. McDERMOTT:
8 Q I'm asking you to look at it, at our Exhibit Number
9 2. And would you tell the Administrative Law Judge what that
10 is entitled?
11 A It's a complaint glossary.
12 Q It's a complaint glossary. And it, it lists, at
13 least for the purposes of the complaint, but we hope for the
14 purposes of the hearing, the acronyms and/or the letter
15 shorthand for various items mentioned in the complaint.
16 But also items that are commonly used in the, with
17 your business, correct?
18 A Yes.
19 Q For example, the M & S, as it applies to?
20 A Mechanical and Structural Engineering Division within
21 Commonwealth Edison.
22 Q Right. So M & S, if you were to mention that in your
23 testimony, would be aided in, if there's a record that has to
24 be produced, this glossary will assist.
25 MR. McDERMOTT: Do you have any objection, counsel?
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1 MR. GROSS: Your Honor, a couple of these are legal
2 conclusions and argument, explaining what they mean. But I
3 have no objection for the use of it as to understand what the
4 acronym stands for, the words.
5 JUDGE LESNICK: All right.
6 MR. McDERMOTT: That's my only purpose, Judge.
7 JUDGE LESNICK: All right. Received.
8 (Whereupon, the document referred
9 to as Complainant's Exhibit No. 2
10 was received into evidence.)
11 MR. McDERMOTT: Thank you.
12 JUDGE LESNICK: Plaintiff's 2.
13 BY MR. McDERMOTT:
14 Q So when you worked for Stone and Webster, you were at
15 least in four, possibly five separate states over a period of
16 ten years?
17 A Yes.
18 Q All right. And, over a period of seven years, and
19 then you were in a new state when you went to work for
20 Westinghouse, is that correct?
21 A Yes.
22 Q When you worked -- strike that. Westinghouse is a
23 principal vendor, am I correct, for Commonwealth Edison and
24 Exelon?
25 A One of the major.
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1 Q One of the majors. What does Westinghouse vend to
2 ComEd, Exelon?
3 A Commonwealth Edison has two systems called PWR, and
4 BWR. PWR stands for Pressure Water Reactor, which is designed
5 by Westinghouse.
6 And BWR stands for Boiling Water Reactor, designed by
7 General Electric. And these two are N triple S suppliers,
8 which is, stands for Nuclear Safety Supply Systems.
9 They designed the reactors, they designed all the
10 components, which is related to the operation, design, and
11 construction, and then maintenance and operations of the
12 reactors.
13 Q While you were employed at Commonwealth Edison in the
14 capacity of Quality Assurance, were you asked to do any Quality
15 Assurance investigation or assessment of Westinghouse?
16 A I don't recall. I don't think so.
17 Q Was that something you would have volunteered to do,
18 having worked for them?
19 A I would have done it, but I think, because I wanted
20 to make sure that I keep my independence. Because I may have
21 produced some of those documents at Westinghouse. I provided
22 that reason that I'd rather not to be assigned to Westinghouse.
23 I want to make sure as a Quality Assurance, I am
24 independent, as required per 10 C.F.R. 50, Appendix B,
25 Criterion One.
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1 Q And Westinghouse designed the Pressure Water
2 Reactors, correct?
3 A Yes.
4 Q And, how many, during the time you worked for
5 Commonwealth Edison, how many reactors exist or existed in
6 Commonwealth Edison prior to the merger?
7 A Prior to Exelon, Commonwealth Edison and the parent
8 company, Unicom, they had 12 nuclear units operating. And I
9 had, they had one unit which was decommissioned. So it was
10 total of 13, but operating was 12.
11 Six PWR's designed by Westinghouse, which are Zion,
12 Byron, and Braidwood. And the BWR's designed by GE are LaSalle
13 County Nuclear Station, and Dresden Nuclear Station, and Quad
14 Cities Nuclear Stations.
15 So we have like half and half. Six units from
16 Westinghouse. Six units from the General Electric.
17 Q And in listing these 12 you give six sites, and that
18 tells us there are two reactors at each site, that's out there?
19 A Yes.
20 Q Thank you. What was your first assignment at
21 Commonwealth Edison, what was your first job?
22 A My first job, I was hired as the Structural Engineer,
23 in the Mechanical Structural which we abbreviated as M & S
24 Group.
25 And I was performing structural analysis
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1 calculations, troubleshooting of the nuclear stations, because
2 we were located at the headquarter.
3 And the stations were contacting the headquarter for
4 any problems they had, or any design assistance they needed.
5 Traditionally, Commonwealth Edison was doing like, Engineering
6 was doing management. They were not doing in-house
7 engineering.
8 And my commitment to Mr. Maiman was because I do have
9 extensive architect engineering background, I would like to
10 change the culture and bring in-house capabilities in
11 Commonwealth Edison. And start developing criteria of teaching
12 the engineers.
13 Q How many managers were in the Mechanical and
14 Structural Group?
15 A I would say, between 50 to 70.
16 Q And, it's your opinion that they were behaving more
17 as managers than engineers?
18 A Yes.
19 Q They would be assigned to projects that were designed
20 by engineers other than ComEd engineers, correct?
21 A Yes.
22 Q And they were interfacing with vendors, primarily?
23 A Interfacing with vendors primarily. yes.
24 Q And they would have to, they were centrally located,
25 but there were also engineers, am I correct, at the sites?
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1 A Yes.
2 Q So the 70 or so are the total who were in the
3 Engineering Group in the suburbs?
4 A 50 to 70 was at the headquarter, which was at 1400
5 Opus Place, Downers Grove, Illinois, 60515.
6 Q All right.
7 A And, mostly they were headquartered there. And the
8 nuclear stations they had site engineering group. But kind of,
9 you could say, the brain of the engineering was located at the
10 headquarter. So that's where you go and help the sites.
11 Q What, if anything, did you do to further this change
12 in culture?
13 A I walked to the sites and I started talking to
14 people. Finding out where they spend most money. And came up
15 with several months, I didn't even tell my supervisor what I'm
16 going to do.
17 But I got it, enough information finding that
18 Commonwealth Edison was spending between five to seven millions
19 in some years, between six to eight millions, millions of
20 dollars doing the structural reading.
21 And the sites were calling headquarter, and the
22 headquarter was giving the jobs to architectural engineer
23 firms, like Sargent and Lundy, mostly. And Bechtel
24 Engineering, and so forth.
25 So what I did, I gathered all the data. And then I
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1 gathered all the managers, and I told them that I could provide
2 engineering solutions, because I did this kind of work at the,
3 at Stone and Webster.
4 And with less than 120 thousand dollars I can provide
5 that document for you, which I was successful, they gave me.
6 And I also presented that --
7 Q Excuse me, what year did you call all of these
8 managers together, after you walked through the sites?
9 A It was around 1992, the time frame.
10 Q All right. And what if anything physically was
11 produced by you and others to accomplish this goal?
12 A I produced minimum six technical information
13 documents, called TID's. And I believe each one, like about
14 close to 400 pages. And then also they are four of them are
15 technical information document for all the different nuclear
16 stations.
17 Boiling water reactors and pressure water reactors,
18 structural, structural support criteria. Which I put all the
19 codes, all the formulas, that the engineers in-house, they can
20 just follow without any dependency to the outside firms.
21 Q But prior to your coming to Commonwealth Edison, were
22 any TID's, did you create the term TID?
23 A No.
24 Q Were there TID's in existence?
25 A There were a few TID's, but they were administrative
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1 in nature.
2 Q I'm sorry?
3 A They were administrative in nature, just how to go
4 about doing things. But by the time it gets to the technical
5 of the, of the program, they had to call Sergeant & Lundy to do
6 their work, or architect engineer firms as a contractors.
7 So, not only I put a brain behind it, there were
8 other that they may have existed, and I did not want to go and
9 reinvent the wheel. So I used those, and I put assembly of all
10 the documents together.
11 And then I also present those to, some of those, to
12 the American Society of Mechanical Engineering, Pressure Vessel
13 Piping, is known AMSME PVP conferences. And it's, they are
14 published in their volumes.
15 (Whereupon, the document referred
16 to as Complainant's Exhibit No.
17 29 was marked for
18 identification.)
19 BY MR. McDERMOTT:
20 Q All right, so, I'll ask you to look at what we've
21 marked as our Exhibit Number 29. You produced these for us,
22 they've been identified as the TID's that you, you made
23 available to us, but for one that we did not collect, am I
24 correct?
25 MR. GROSS: I'll have to quickly look through those.
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1 MR. McDERMOTT: Sure.
2 THE WITNESS: Mr. McDermott, these are --
3 BY MR. McDERMOTT:
4 Q Did you have a question? Mr. Shirani, I'm going to
5 ask you to look at what is bundled by string and rubber band
6 and hardware. Would you just a minute and just make sure those
7 are the documents that were produced by us, or excuse me,
8 produced by Exelon at our request.
9 A Yes, Mr. McDermott.
10 Q And what are those documents?
11 A They are Zion Station Pipe Support Analysis. They
12 are LaSalle County Station Pipe Support Analysis. Byron,
13 Braidwood Station Pipe Support Analysis. PWR Stations
14 Temporary Breaking Load Criteria. BWR Stations Temporary
15 Breaking Load Criteria.
16 Q Is that a representative sample of the TID's that you
17 wrote?
18 A Yes.
19 Q Is, is this all of them?
20 A No.
21 Q Would there be an equal number, a number equal to
22 these that were not for use, or?
23 A I believe one of the pipe support analysis that we
24 requested for Dresden, Quad Cities repeatedly and it was not
25 produced.
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1 Q Okay. But it's a fair example of the work that you
2 did, correct?
3 A Yes.
4 Q And let me ask you, you didn't do this all alone?
5 A No.
6 Q Who helped you in creating these TID's?
7 A I contracted portions of it to the outside.
8 Q All right. So you had to spend some money?
9 A Yeah.
10 Q Is that the 125,000 dollars you mentioned?
11 A Yeah.
12 Q Did you exceed that budget?
13 A No.
14 Q So, did you have to use Sargent and Lundy for some of
15 this work?
16 A Yes.
17 Q All right. Anybody else?
18 A That's all.
19 Q All right. Did they see the handwriting on the wall,
20 did they see they were going to lose business if you did this?
21 MR. GROSS: I'll object, Your Honor, as to the lack
22 of foundation as to what someone else thought, or saw on the
23 wall.
24 JUDGE LESNICK: Sustained. Go ahead.
25 BY MR. McDERMOTT:
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1 Q You turned over to your management?
2 A Yes.
3 Q Did copies of the TID's go to the sites?
4 A Yes, it was a standard.
5 Q They were widely distributed throughout the six
6 geographical areas, and the twelve operating plants, correct?
7 A Yes, sir.
8 Q Did those people know who you were?
9 A Yes.
10 Q Did they know you were the author of this, or I'm
11 sorry, not author, editor of this, these documents?
12 A I prepared those documents, I advertised it, and I
13 went to all the sites. And I provided 12 training for over 300
14 engineers at all nuclear sites.
15 Q So it would be hard for them not to know who Oscar
16 Shirani was, right?
17 A Yes.
18 MR. GROSS: I'll object, Your Honor.
19 JUDGE LESNICK: I'll allow it.
20 MR. McDERMOTT: Thank you, Judge.
21 BY MR. McDERMOTT:
22 Q So this is 1993 probably?
23 A 1993, '94 time frame.
24 Q And you mentioned ASME?
25 A A-S-M-E, ASME, yes.
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1 Q And that's the American?
2 A That's American Society of Mechanical Engineers,
3 around the world.
4 Q But you aren't a mechanical engineer, were you?
5 A Yeah, that was a challenge actually.
6 Q What do you mean?
7 A One of my supervisors, I guess, his name was Paul
8 Donovan, he was a mechanical engineer. And he was teasing me
9 that the structural engineers do not understand thermal
10 analysis. And you guys just building bridges, and just put a
11 gap, you don't know what, what you doing.
12 So, one day, I was sitting in another area that,
13 because mechanical structural engineering didn't have enough
14 space, so they put me behind the programs group.
15 And then a gentleman come in and knocking on my
16 shoulder, Mr. Nick Constantino, he was one of the managers of
17 the Programs Group. They are dealing with the valve issues,
18 NOV's.
19 He comes around 9 o'clock, and tap on my shoulder
20 thinking that I was one of the consultants of Sergeant & Lundy,
21 because I was not assigned at any name or cube. And he says,
22 our stations has called, LaSalle Nuclear Station has called.
23 And they are experiencing a thirty percent margin
24 increase in the thrust analysis. Can you look at it? And I
25 was a structural engineer, I said valve, I only have seen it in
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1 my, at my home. I don't know, I'm not a mechanical.
2 But I looked at it, and it was like a stress
3 analysis. So a structural engineer, I will say, envelopes
4 mechanical, we're dealing with a round shape, we're dealing
5 with all kinds of shape.
6 So I understood it, and I didn't have any tools with
7 it. Because they had to make a red phone call to the NRC
8 around 1 o'clock. I have only four hours, and I didn't want to
9 tell him that I'm not a mechanical engineer.
10 I said let me try, see if I can help him. So I went
11 to Susan Corn, who was of the consultants with Bechtel, or
12 maybe it was another name that time. And I said can you show
13 me some valves, I want to know what's the yoke is, you know,
14 the thrust is that you talk about.
15 They showed me the valve. So, I, and I was teaching
16 in the College of DuPage for five years as a structure and a
17 mathematics, too. So I knew the second degree, third degree
18 equations and I figured out, and I figured that the load they
19 talking about, we have 600 percent margin left.
20 And they running only about 30 percent. So I saved
21 them from a red phone call to the NRC.
22 Q All right.
23 A He was very happy about it.
24 Q But that wasn't an answer to my question. You're a
25 structural, not a mechanical engineer.
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1 A So, then I became --
2 Q But you're publishing in, in mechanical engineering
3 journals, right?
4 A Yes.
5 Q Did you make the front page of this mechanical
6 engineering journal?
7 A Yes.
8 Q Do you remember what year that was?
9 A 1995 I presented a paper as a author. I created a
10 code that did not exist. 70 or 80 of the valves at Dresden,
11 Quad Cities, they were exceeding the design allowable by about
12 300 to 500 percent margin.
13 ASME did not have a code. So as the NRC. So in
14 order to really to rectify the situation they have to bring the
15 units down. But I wrote the elastic plastic theory. And I
16 defended the operability of the valves which later was used by
17 the industry.
18 And it became a code. And it is, in 1995, pressure
19 vessel piping. I presented it to the MUG meeting, which Motor
20 Operated user's group. And then, in front of all of the
21 Regions of the NRC, the industry, about 500 people they were
22 listening to that speech.
23 And then NRC had only one question. Wanted to know
24 if I have analyzed the, the deflection within stem on stem
25 stresses.
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1 And then I went and revised it and I presented in the
2 American Society of Mechanical's Pressure and Supply meeting in
3 Honolulu, Hawaii, 1995.
4 And that's how I became more interested to be one of
5 the ASM more mechanical engineer, because it was just like more
6 challenging than the civil engineering. And now I proved to my
7 boss that I could do it.
8 Q Let me ask, you took some pride in this work, did you
9 not?
10 A Yes, of course.
11 Q And you didn't, you weren't bashful if people
12 applauded your, your presentations, were you?
13 A No.
14 Q You like it?
15 A Of course.
16 Q Anything wrong with looking towards a promotion?
17 A That's --
18 Q Anything wrong with looking towards publicity?
19 MR. GROSS: I'll object, Your Honor, as to the
20 morality questions.
21 JUDGE LESNICK: I'll allow it.
22 MR. McDERMOTT: Thank you.
23 BY MR. McDERMOTT:
24 Q So these TID's saved your company according to your
25 testimony four to six million dollars a year?
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1 A True of the last one, the PWR, and the BWR -- those
2 two alone saved every single year for the next 40 years.
3 Q The next what?
4 A The next 40 to 60 years.
5 Q 40 to 60 years.
6 A 40 to 60 years. And it was not even my opinion. It
7 was, I was interviewed by the, a gentleman from the Finance
8 Department. And they put the figures together, and got the
9 figures from the stations.
10 And they assembled that it is three to five million
11 some years, six to eight millions of dollars that we were
12 sending, spending to the outside contractors.
13 Q All right. Did your work and recognition result in a
14 promotion within Engineering?
15 A I did not understand your question, sir.
16 Q Did you become a Lead Engineer and a, and a manager
17 of a unit called MOV?
18 A Yes.
19 Q Was that a promotion?
20 A Yes.
21 Q All right. When did that occur?
22 A 1993. I was hired 1990 as a Principal Engineer,
23 Level Seven. 1993 I was promoted to the Lead Senior Engineer,
24 Level Eight.
25 Q And that meant more money?
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1 A Yeah, of course.
2 Q And again, let me just stop you there. Level Seven,
3 Level Eight, those are economic bands, am I correct?
4 A Yes, salary grade band.
5 Q Those were the salary grade bands in use in
6 Commonwealth Edison at the time?
7 A Yes.
8 Q Who's the number one man in Commonwealth Edison at
9 this time, '93?
10 A 19, 1993?
11 Q 1993.
12 A I believe it was Mr. Tom Maiman, and Mr. Lou
13 Delegeorge.
14 Q When you were hired in, were you at grade Level
15 Seven?
16 A Yes, I was a Principal Engineer.
17 Q Okay, and you were promoted in '93 to a grade Level
18 Eight?
19 A Eight, Senior Engineer.
20 Q All right. How long did you remain in Engineering?
21 A Up to November 28th, 1994.
22 Q Now did you do any training sessions other than those
23 training sessions related to the TID's when you were in
24 Engineering?
25 A Well that, the first four TID's, the pipe support
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1 design criterion, it's in-house capability, increasing in --,
2 yeah, and then I also helped with the MOV seismic analysis and
3 a weak link analysis training.
4 As well as seismic, which is, seismic means
5 earthquake, scaffolding. Because, you know, I'd reviewed some
6 of those, too. Also I reviewed some of the other mechanical
7 TID's.
8 Later on these TID's changed their name, I guess
9 these recent years they have changed it to Commonwealth Edison
10 or Exelon Standards. So maybe some of the TID's for these
11 particular ones, may not have the, exist, these numbers.
12 They may have just changed number name, or revisions
13 or so. But these are, at that time, it was the latest current.
14 Q And they may be called the Exelon Standards now?
15 A Right.
16 Q The Exelon something standards, or?
17 A MS, mostly they are using, Mechanical Standards.
18 Mechanical Structural Standards.
19 Q Did you change your, your position within
20 Commonwealth Edison in 1994?
21 A Yes. I went to Quality Assurance Department. That
22 the name of the group was SES, Supplier Evaluation Services
23 Group.
24 I had helped them before in, from 1990 to 1994 as a
25 subject matter expert in their audits of their outside or
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1 inside audits.
2 Q All right, let me ask you, the SES existed when you
3 came to work for Commonwealth Edison in 1990, correct?
4 A I don't know if it was 1990, but I knew it existed
5 November 28th, 1994, when I joined it.
6 Q But you said you helped them prior to joining them?
7 A I didn't know their name, but I knew that I'm helping
8 Quality Assurance Group, as a subject matter expert.
9 Q And what is a subject matter expert?
10 A Subject matter expert is since the audits, internal
11 audits or external audits, they have to comply with the 10
12 C.F.R. 50, Appendix B, and it has 18 criteria. Criteria number
13 three, which I will say, heart of the audit, is a design
14 control process.
15 So usually, Quality Assurance people don't have
16 experience in that area. So they have to go and get expertise
17 in engineering to assist them to, to assure that they do
18 understand the intent of the 10 C.F.R. and the ANSI and ASME
19 standards.
20 Because traditionally Quality Assurance people are
21 not trained to the technical standards. So I didn't have --
22 Q Let me stop you right there.
23 A Yes.
24 Q I'm going to ask you to look at what has been
25 identified as an abbreviated version and provided to counsel.
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1 Look at what we're calling our Exhibit Number 3. Do you know
2 what that is, Oscar?
3 A Yes, sir.
4 Q What is it?
5 A This is the Code of Federal Regulation, Section 10,
6 Part 50, which is known as 10 C.F.R. 50, Appendix B. And for
7 simplicity for this Court, I will call it Code, to make it
8 simple.
9 Q All right. Let me ask you, you're testifying that
10 prior to joining this organization called SES you're acting as
11 a subject matter expert with respect to Criteria three, in that
12 code, is that correct?
13 A Yes, sir.
14 Q And your subject matter expertise were in what areas?
15 A Mechanical and structural areas.
16 Q The kinds of things you did daily with respect to the
17 sites, and with respect to the organization, the, the
18 superstructure in, on Opus Place, is that what you said?
19 A Yes.
20 Q All right.
21 A And 14 years prior experience.
22 Q Did you have occasion between '90 and 1994 to work
23 with the Code?
24 A I knew a little bit about it, but I was not trained
25 to be auditor.
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1 Q You mentioned that Criteria Three, in your opinion,
2 is the heart of the Code, is that correct?
3 A Yes.
4 Q What are the other important criterias that you know
5 of in that Code?
6 A I will say, Criterion One.
7 Q What is Criterion One?
8 A Organization.
9 Q All right.
10 A Is very important. And I will call 16 as a brain,
11 which is called Corrective Action Program. It's like body, you
12 build a structure, it's like a human body.
13 If the heart gets sick, or the brain. If the heart
14 controls everything, and the brain controls everything, if you
15 get cut in your hand, the heart feels it.
16 JUDGE LESNICK: Let's stop there.
17 (Off the record.)
18 (On the record.)
19 MR. McDERMOTT: Thank you, Judge.
20 BY MR. McDERMOTT:
21 Q You were mentioning the Code, what, you were
22 mentioning the Code, what is the purpose of Criteria number
23 one?
24 MR. GROSS: Your Honor, I'm going to object to the
25 testimony regarding his interpreting any legal departments, or
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1 giving a legal opinion.
2 JUDGE LESNICK: Is that interpreting the Code?
3 MR. McDERMOTT: I'm just asking him to --
4 JUDGE LESNICK: I'm not sure I remember what the
5 question is.
6 MR. McDERMOTT: The question is, can he give us a
7 synopsis of Criteria one of the Code. What it's purpose is,
8 what it states generally.
9 JUDGE LESNICK: Well, I won't, I won't accept it as a
10 legal standard or interpretation, but if, if you can ask him
11 what his, what he understands it to mean.
12 MR. McDERMOTT: Fine. Thank you.
13 BY MR. McDERMOTT:
14 Q What do you understand Criteria one to mean, Oscar?
15 A You're referring to the Criterion one of 10 C.F.R.
16 50, Appendix B?
17 Q Yes, the Code.
18 A Which title is Quality Assurance Criteria for Nuclear
19 Power Plants and Fuel Processing Plants.
20 Q All right.
21 A I would put in a very layman's term, because we have
22 some of them are not engineers or Quality Assurance, and make
23 it very simple. Organization, any licensee, like Exelon or
24 Commonwealth Edison, from NRC gets the license to invoke all
25 the requirements of these 18 criteria.
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1 Criterion one, Organization Structure, says, the left
2 side of the equation should be different than the right side of
3 the equation.
4 What I mean by left of the equation, left side of the
5 equation is all production. Engineering, supply management,
6 maintenance, construction, operations, and all that stuff,
7 which is almost comprised more than 99 percent of the work
8 force and the budget.
9 The right side of the equation, however, is the
10 Quality Assurance end, which inside the Quality Assurance is
11 also Quality Control.
12 Overall, the right side of the equation provides the
13 nuclear oversight function. Criterion one, these two entities
14 have to be separable and they have to be independent.
15 The Quality Assurance function, the right side of the
16 equation, has to be independent from production, retaliation,
17 harassment, cost, budge, schedule, to do the quality.
18 To focus quality. You cannot mix the right side of
19 the equation, put it on the left side of the equation. You
20 could do it if in non-nuclear plants, fossil plants, which is
21 not nuclear safety, or public safety.
22 But if you are getting licensed from the NRC, to
23 invoke this requirement, your Quality Assurance program and
24 associated procedures which implements the Quality Assurance,
25 and should be in accordance with the Code, they have to be a
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1 separate entities.
2 Q And again, who's on the right side?
3 A The right side is Quality Assurance, which I was
4 representing from 1994, and beyond, up to January 14 of 2001.
5 Q All right. And on the left side are all the others
6 you mentioned?
7 A All the others.
8 Q Numerically, that's where the money's made, correct?
9 A Yeah.
10 Q Numerically, that's where all the bodies are working,
11 correct?
12 A Resources, budget, 99 percent of the budget
13 resources, everything is on the left side of the equation. One
14 side of, only less than one percent is providing oversight,
15 which is considered overhead, you may call it, because we don't
16 produce anything. And we have to make sure that they comply
17 Codes.
18 Q And you've already told us what you thought the head
19 and the heart was.
20 A Yeah, and in my opinion the right side of the
21 equation usually they are not liked. If I couldn't say they
22 hated, but they have, they always at your best you are
23 everybody's enemy on the left side.
24 Because they are not NRC. They are scared of NRC.
25 People are scared of the QA because we are raising issues, and
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1 force them to implement it, and in that work in that kind of
2 thing, you're going to effect budget. You're effect delay.
3 You're going to delay things. You're going to not
4 going to make a lot of people happy on the left side of the
5 equation.
6 Q You were, did you apply for a job at SES, in the
7 Quality Assurance, on the, in the right side?
8 A Yes.
9 Q And was the job posted, did you read it in some kind
10 of publication, or was it?
11 A No, actually they didn't even have any opening. But
12 since I was helping them as a subject matter expert for a few
13 years, one of the auditors -- recommended me to talk to Ed
14 Netzel.
15 Q And who was, spell Netzel for the record if you will.
16 A N-e-t-z-e-l.
17 Q And what was Mr. Netzel's position at the time?
18 A He was the SES Director.
19 Q All right.
20 A SES at that time was part of the Quality Assurance
21 function.
22 Q All right. And, he approached you, or you approached
23 him? You approached him?
24 A I approached him, and then he says, I, oh, I can
25 always use technical people, which I don't have. And I don't
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1 have any openings, but I'll find a position for you.
2 Q And did he?
3 A Yes.
4 Q All right. Did your grade band, or your compensation
5 band change at that time?
6 A No, but he made a commitment that if you stay for a
7 year, I'll give you a promotion because the first year you have
8 to learn about QA.
9 We're going to take advantage of your technical,
10 you're going to take advantage of our training, to make you
11 auditor, and lead auditor. And I figured, that's a good thing.
12 Q Was there a company policy with respect to employees
13 moving from one department or area, to another department or
14 area, i.e. did the employee have to seek his current
15 supervisor's permission to leave and take a position in another
16 area?
17 A Yes, traditionally is also in the forms. That you
18 are required minimum two years on the job to satisfy. And your
19 supervisor, who, is it justified that you met the minimum
20 requirement, he could release you.
21 But sometimes there are, you know, circumstances that
22 the supervisor may do --
23 Q For example, if the person may be critical?
24 A Yeah.
25 Q All right. Were you released to take the job in
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1 Quality Assurance?
2 A Yes.
3 Q And what exactly was your title when your title when
4 you went there, and what exactly was the month in 1994?
5 A Once I went to 1994, I still, since I was not
6 auditor, or the lead auditor at that time, when I taking
7 training. I believe that they just put me auditor in training,
8 or the lead.
9 I mean, until I finished my training, I think I took
10 a three days class, and I observed, I was observer in two
11 audits. So they qualified me to the American Nuclear Standard
12 Institute, which I call it ANSI.
13 ANSI standard and N45 point 2 point 23, to be
14 auditor.
15 Q And how long did that take?
16 A To be auditor, and lead auditor I will say between 12
17 to 18 months to be really to understand what it really means.
18 Q When you left your department, was there anybody else
19 qualified and certified the way you were qualified and
20 certified?
21 A I don't understand the question.
22 Q Well, you went through this, this training and the
23 rest, am I correct?
24 A Yeah.
25 Q And the component parts took 18 months approximately?
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1 A No, it takes 12 to 18 months until really you
2 understand. You digest the codes and the standard, being
3 different audits, to be exposed to different audits before the
4 company can really trust you that to make you a lead auditor,
5 and especially for major audits, to make you lead auditor.
6 Q For example, when, when was it after '94 that you
7 became a lead auditor?
8 A I think I was within nine months.
9 Q All right. Was Mr. Bastyr working in the, the SES at
10 the time?
11 A I believe that he was one of our many co-workers.
12 Q Was he a lead auditor at that time?
13 A I'm not sure, I was not supervisor to know what was
14 his, qualification was.
15 Q When did you lead your first audit?
16 A I would say around fall of 1995.
17 Q All right. Had you been there a year before you led
18 your first audit?
19 A No.
20 Q Do you recall who your first audit, or what your
21 first audit was?
22 A I think was not the first one, but it was one of two,
23 the first two, three, I was, I went to Ebasco Engineering in
24 twin towers. The same building which was subject to 9/11.
25 Q You're going to have to give me that name again, it's
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1 a name that I've never heard. Who engineering?
2 A Babcock, I'm sorry, that was not Babcock's, I believe
3 it was, did I say Babcock's?
4 Q I didn't hear it, that's why I'm asking you to repeat
5 it.
6 A Yeah, cross, cross that off. I think it was Ebasco
7 Engineering. Ebasco and it was later on merged with --
8 JUDGE LESNICK: How do you spell it?
9 THE WITNESS: Ebasco is E-b-a-s-c-o. And later was
10 merged with Raytheon Engineers.
11 BY MR. McDERMOTT:
12 Q All right.
13 A I believe maybe the title of the audit was the
14 Raytheon Engineers, it was in the twin towers.
15 Q And when you say twin towers, they were vendors for
16 Commonwealth Edison?
17 A Yeah.
18 Q They were engineering vendors, correct?
19 A Yes.
20 Q And you went to the twin towers to conduct an audit?
21 A Yes.
22 Q Did you conduct it alone, or did you have team
23 members?
24 A No, that was a NUPIC audit. NUPIC stands for Nuclear
25 Users Procurement Issues Committee. N-U-P-I-C, Nuclear Users
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1 Procurement Issues Committee, which is almost 54 utilities
2 world wide, 46 in the United States.
3 And they share audits together. That will save the
4 cost for the utility, and it will be a lot less work for their
5 suppliers. That was in --
6 Q And this was a time, let me ask you, NUPIC has 46
7 domestic participants. Exelon, or, and we're talking about
8 1994, it's Commonwealth Edison, is a member and a participant
9 in NUPIC, correct?
10 A Yes.
11 Q You say they share, they have audits, how would they
12 determine who's to be audited?
13 A They have two or three times NUPIC meetings around
14 different sites of the country.
15 Q Two or three times a year?
16 A Two, three times a year. And they have NUPIC
17 charters, that they have rules and regulations that they
18 follow. And each utility has one or two NUPIC representative
19 to go and form all the rules, regulations.
20 Decide which supplier is going to be audited next,
21 who's going to be the lead, who are the other participants.
22 And that's how it's done.
23 Q And I take it they do this because there's a finite
24 number of suppliers for the, for the energy industry, correct?
25 The nuclear energy industry right?
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1 A Yes.
2 Q And NUPIC, then, is an association of the energy
3 producers who have to use these vendors?
4 A Yes.
5 Q Okay. It being your first, or very earliest or one
6 your earliest audits, you don't remember who else was on the
7 team with you?
8 A The lead utility was Wisconsin Electric, and I don't
9 know his, I know his first name was Tony. I don't remember his
10 last name.
11 Q All right. That's, it's not important. How
12 regularly did you leave, again now, are you in the Opus campus
13 when you moved to SES?
14 A Yes.
15 Q Do you move to a different floor on the Opus campus?
16 A No, were on the Suite 300. Third Floor.
17 Q Was that also where Engineering was?
18 A Engineering was on the fourth floor.
19 Q All right, so you did move.
20 A I went from fourth, to third.
21 Q So you moved?
22 A From Engineering to QA.
23 Q All right, so you moved, physically you moved, in
24 '94?
25 A Yes.
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1 Q How frequently during a calendar year from 1994 until
2 you left SES, did you leave the campus to conduct an audit?
3 A I will say average between 12 to 15. Some years I
4 did 17, 18 audits, some years I did less than 12. But I think
5 on average between 12 to 15 is a fair guess.
6 Q During your tenure with them, how many audits did you
7 do?
8 A I would say if I add them all up together, it would
9 probably be between 80 to a 100, or more.
10 Q Now --
11 A But how many, I do not --
12 Q You didn't read each and every one of those audits?
13 A No.
14 Q All right. How many do you, if you think about it,
15 how many do you believe you led?
16 A From 1995 time frame to 2001, I will say more than
17 40.
18 Q More than 40?
19 A Yes.
20 Q What would be the average size of an audit team?
21 A Depends on the, the contractor or the supplier that
22 you audit. The size of the audit team, the scope of the audit
23 team, the complexity of, the importance of the safety related
24 function that we did.
25 I will say architect engineering firms, like Sergeant
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1 & Lundy, Bechtel, Stone and Webster, and major ones, that we do
2 majority of the work at ComEd and Exelon, they roughly have
3 like five, to eight, to nine. And majority of them is mostly
4 technical specialists. Because it has to, because the
5 activities affecting quality should be focused on the core of
6 the scope of the activity.
7 So architect engineering, but NSSS suppliers, like
8 General Electric, if you're doing a full-blown audit of 18
9 criteria, the last one I was there 1998, the NUPIC audit of the
10 GE, 27 auditors there, were there.
11 And out of those 27, surprisingly only three of them
12 were technical specialists.
13 Q Now let me, let me just use that as an example. Were
14 you the lead on that 1998 GENE?
15 A No. I was, I was told to participate.
16 Q All right. And were you given an assignment?
17 A Yes.
18 Q All right. In 1997, you were a lead, am I correct?
19 A I was the lead of the ComEd special audit.
20 Q Okay.
21 A That was another NUPIC audit, the ComEd special
22 audit.
23 Q Just so I have it here, the GE, and GENE stands for
24 what?
25 A General Electric Nuclear Energy.
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1 Q And you keep slipping into these quick, you said the
2 triple what?
3 A N triple S. NSSS, which is Nuclear Safety Supply
4 Systems.
5 Q All right. And how do they, you've mentioned
6 Westinghouse as being one, you've mentioned General Electric as
7 being one, how many others are there?
8 A Not at ComEd system, of the, there may be after the
9 Exelon they merged with other ones that they could combustion
10 engineers, too. But, there are very, very, few combustion
11 engineer, called it CE. They have, I guess they are producing
12 PWR systems.
13 Q When you act as a, acted as a lead engineer, I'm
14 sorry, lead auditor in these 40 plus audits, am I correct?
15 A Yes.
16 Q Over that period of time. You have to, you didn't
17 tell people what to do, you have to lead them, am I correct?
18 A I have to lead them, stay with them, every single
19 moment, every single hour, every single day. You have a daily
20 debrief to summarize what was the result.
21 And then also you have some technical specialists
22 that they may not be aware with the Code. It's your
23 responsibility before you audit, you prep them.
24 Q All right. So you're doing a little bit of teaching.
25 A Before the audit.
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1 Q You're doing a lot of leading.
2 A Yes.
3 Q You're acting as a colleague to similarly situated
4 professionals, correct?
5 A Yes.
6 Q Would you characterize that as demonstrating certain
7 management skills?
8 A Yes.
9 Q All right. Did Commonwealth Edison consider that
10 management skills?
11 A Yes.
12 Q All right.
13 A You are responsible for the overall integrity of the
14 audit.
15 JUDGE LESNICK: Is that, you're objecting to the
16 question?
17 MR. GROSS: I'll object to his characterizing what
18 ComEd thought.
19 JUDGE LESNICK: What was the question?
20 MR. McDERMOTT: Well, I'm an --
21 MR. GROSS: It was already answered.
22 JUDGE LESNICK: Well, we can still entertain an
23 objection, though.
24 MR. McDERMOTT: The question was, did ComEd believe
25 those skills to be management skills. That teaching, leading,
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1 colloquialism, or communication with colleagues.
2 MR. GROSS: Asking a question about an entity called
3 ComEd, and what the entity thought.
4 JUDGE LESNICK: I think it's an appropriate
5 objection, so I'll disregard the answer.
6 MR. McDERMOTT: All right.
7 BY MR. McDERMOTT:
8 Q Did your management, your management in SES where you
9 did all these 40 plus lead audits commend you and tell you that
10 they thought that was an expression of good management skills?
11 A Prior to GE audit, yes.
12 Q After the GE audit?
13 A After GE audit I was just not getting anywhere.
14 Q All right, so prior to 1997 you're management
15 complimented you on your skills?
16 A Yes. I got the highest achievement award from
17 Engineering, I got outstanding achievement from Lou Delegeorge.
18 Mr. Wagner, is our Vice President of Engineering. And the
19 records were submitted to Sidley, Austin.
20 Q To the Respondents, correct?
21 A Yes.
22 Q But conducting audits wasn't your only task, am I
23 correct, when you went to SES?
24 A No, we --
25 Q What else did you have to do?
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1 A I remember I got some calls from Engineering that
2 they don't have enough structural engineers to do walk down and
3 help the stations. And then there was an equality --
4 Q No, I'm talking about 1994.
5 A Oh, 1994?
6 Q I'm talking about what was your, you were brought on,
7 you were taught auditing over a nine month period, you get into
8 your first audit, what else are you doing on a day to day
9 basis, aside from these audits?
10 A Not only you participate and lead audits, but also
11 you do third party review for the audits that you were not
12 participant.
13 You receive the product, and then you're also
14 responsible for maintenance of the approved supplier list.
15 Like, I was assigned to more than 70 vendors. And these, most
16 70 vendors, they are -- architect engineering major, or
17 architect engineering services were the most technical. So I
18 have to make sure --
19 Q So, let me stop you. You said the maintenance of the
20 approved supplier list?
21 A AASL, I mean, they call it ASL, approved supplier
22 list.
23 Q That is a document?
24 A Yes.
25 Q And approved supplier list?
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1 A It's a control document. To make sure if any vendor
2 added, deleted, if you have a warning against a vendor it
3 should show on that, and it is as a control. If you don't
4 follow that, you're messing the procurement process --
5 Q All right. Who, who gets copies of this ASL?
6 A It's living document, within the system within the
7 computer system.
8 Q So it goes to Purchasing?
9 A It goes to Purchasing.
10 Q It goes to Engineering?
11 A Right.
12 Q Goes to what else?
13 A Engineering, Maintenance, Operations, buyers. So if
14 anybody needs to apply or send any work to any suppliers, they
15 have to check that ASL to make sure it is not conditionally
16 approved, does not have restriction, is clear, and is approved
17 with no warnings. In order to --
18 Q With, with no what?
19 A No warning.
20 Q Okay. And when you began in 1994 at SES, how many
21 co-workers or fellow workers did you have?
22 A I will say between 12 to 14 people we were at the SES
23 Group.
24 Q Were there women employed in, in that office?
25 A Yes, I believe Pat Weiger was the only one I recall.
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1 Yeah. W-e-i-g-e-r.
2 Q All right. You do the audits, and you do this
3 maintenance of the ASL list. How do you maintain it?
4 A You have to look at the NUREG-0040.
5 Q What's that?
6 A Which is the document produced by NRC NRR office,
7 Washington, D.C. as Mr. Landsman said. Because they go and
8 perform audits. And they, if they have experienced any
9 problems they document in that NUREG-0040.
10 Q All right. So these, these people exist out there,
11 and they flag something that has to picked up by you or your
12 co-worker who's monitoring that particular vendor who's been
13 assigned to you?
14 A That's on aid, because the whole NRC expects your QA
15 program to comply with the 10 C.F.R. 50.
16 Q Right.
17 A Part of your audit preparation to make sure that once
18 you prep to go and look at the right things, one of those items
19 that you look to see if there is an industry issu