Archive for February, 2022

Every once in a while you come across a claymation picture that just encapsulates everything. Someone in the UK created this one, which shows the Queen and Prince Andrew visiting the nearest ATM to get cash to settle the suit brought against Andy by Virginia Giuffre.

“Andrew, this is the LAST time I’m going to do this…”

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On July 19, 1989, United Airlines Flight 232, a DC-10, crash-landed on a runway at the Sioux City, Iowa airport.

According to the subsequent report by the National Transportation Safety Board, the accident was triggered by a titanium fan disc that was part of the plane’s No. 2 engine. That titanium disc, which of course spins at a very high speed, had a microscopic manufacturing defect that had, over time, created a hairline crack. That crack eventually caused the disc to break apart in mid-flight, and pieces of the disc spun out like shrapnel and cut through all three of the plane’s hydraulic systems, destroying them. On small planes, parts such as rudders, stabilizers and ailerons on the wings may be controlled by cables and mechanical connections directly to the pilot’s steering yoke, foot pedals, or other cockpit controls. But on a commercial jet like a DC-10, those surfaces are so large, and the forces exerted on them so great, that hydraulics are necessary to move them. When pieces of the fan disc cut through all the hydraulic lines, the pilots could no longer control the airplane by means of ailerons, rudder and stabilizers. Still, in a truly remarkable feat, the pilots, using only the engine throttles, managed to steer the crippled plane onto a runway at Sioux City airport. Of the 296 persons aboard, including the crew, 185 survived.

The Flight 232 disaster is an example of how the failure of one complex system (turbines) can interfere with or even completely disable one or more other complex systems (hydraulics) with catastrophic effect.

On February 9, 2022, the Inspector General of the Nuclear Regulatory Commission released a report (NRC Inspector General’s Special Inquiry Into Counterfeit Fraudulent and Suspect Items in Operating Nuclear Power Plants, or the “Report”) stating that:

• The NRC lowered its oversight standards for ensuring that counterfeit, fraudulent and suspect parts were not used in U.S. nuclear power plants;
• Fake parts are present in most, if not all, U.S. nuclear power plants;
• Persons within the industry informed the NRC about the use of these fake parts; and
• The NRC failed to appropriately address this problem.

The Report states that the IG is “aware that the NRC staff does not have a direct role in identifying counterfeit parts and preventing their use in a nuclear power plant.” (Report, pg. I). Well, if not the NRC, then who does that job?

But wait, it gets better (i.e., worse). Counterfeit parts are tracked only on a voluntary basis, if at all, and the NRC doesn’t require nuke plants to report use of counterfeit parts “…unless a situation rises to the level of being a significant condition adverse to quality, or a reportable issue” under applicable regulations. (Report, id.) Stated differently, don’t bother the NRC until something bad happens.

The Report also states that “[counterfeit parts are safety and security concerns that could have serious consequences in critical power plant equipment required to perform a safety function.” (Report, at ii).

Gee, do you really think so? That sentence could have been lifted out of the Chernobyl or Three Mile Island autopsies.

The NRC has an “Allegation Manual” and a process for reports about counterfeit parts through its Allegation Review Board.

According to the NRC’s own Management Directive (MD) 8.8, Management of Allegations, “anyone should feel free to communicate any safety concern to the U.S. Nuclear Regulatory Commission.” (Report, pg. 9). This manual contains procedures for handling such allegations.

Oh, well, that ought to do it, right?

Wrong. The Report goes on to state that although allegations about counterfeit parts in nuke stations had been made for the past ten (yes, 10) years, “…the NRC did not investigate or pursue any substantive actions regarding [the allegations about counterfeit parts],” and classified [these] concerns about counterfeit parts as “non-allegations.” (Report, id., pg. I , emphasis added).

Holy Terminology, Batman! What is a non-allegation? That’s a tough question, so let’s begin with an easier one. What is an “allegation”?

MD 8.8 defines an “allegation” as:

a declaration, statement, or assertion of impropriety or inadequacy associated with NRC-regulated activities, the validity of which has not been established. (Emphasis added.)

Report, pg. 9

That sounds more or less reasonable. But that’s not really how it works at the good ol’ NRC. What the alleger may have thought was an allegation doesn’t actually become an allegation until whatever was alleged goes through a multi-level initial consultation process by NRC staff to determine that whatever was alleged is the real McCoy, an allegation allegation.

If you think that’s confusing, try this tour de force of sanctimonious bureaucratic phraseology, drawn from the NRC’s Allegation Manual:

If, after this initial consultation, it is unclear whether information provided by the concerned individual constitutes an allegation, it is appropriate to discuss the information at an ARB [Allegation Review Board] to obtain a decision. If the ARB cannot reach a conclusion as to whether the concern in question should be processed as an allegation, the [agency allegation advisor] should be consulted. Some regions/offices assign an allegation number to such issues and then recode the item in the AMS [Allegation Management System] database as a non-allegation if the ARB determines that the issue is not an allegation. Some regions/offices document the issue on allegation process forms but withhold assigning an allegation number until the ARB has reached a conclusion. Either approach is acceptable.”

(Report, pgs. 9-10; emphasis added).

So even though an “allegation” is still an “allegation” if its validity has not been established, the NRC’s own procedures describe how it sweeps uninvestigated allegations under the rug.

The Report goes on to describe one case in which an alleger notified NRC staff about counterfeit part concerns at a specific nuke plant (Seabrook Station in New Hampshire) by letters, emails, phone calls, and even discussions at public meetings, all over the course of ten (10) years.

The NRC determined that the alleger’s allegations were not really “allegations.” It classified the allegations as “non-allegations” and did nothing.

So, if you think that the NRC is supposed to be protecting the public by ensuring the safe operation of nuclear plants, you might be surprised to find that it has borrowed its policy toward fake and counterfeit equipment in U.S. nuclear plants from Alfred E. Neuman of Mad Magazine fame: “What, me worry?”

NRC Chairman Alfred E. Neuman

A nuclear generating station has millions of parts that make up different complex systems that enable it to function as designed. An accident caused by a counterfeit part in one system at that station might be confined to that system, and it could be something from which a fast recovery is possible. For example, if the pieces of the disintegrating fan disc on United Airlines Flight 232 had been contained within the cowl of Engine No. 2, its own system, the hydraulics would not have been cut and the airplane might well have landed safely and without any loss of life.

But an accident due to a counterfeit part in one system at a nuke station could affect one or more other systems, a cascading effect that results in a grave disaster. Given that an accident at a nuke station could render a populated area in the U.S. uninhabitable by humans for more than 10,000 years, one might be forgiven for thinking that the NRC should take counterfeit part allegations more seriously.

For starters, the NRC might want to re-read the story about United Airlines Flight 232.


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Constellation NewEnergy’s Third Party Investigator

The At Issue program on WBBM Newsradio (on Audacy) interviews Richard Dent, NFL Hall of Famer and MVP of Superbowl XX, concerning his legal battle with Constellation NewEnergy.

Also on the interview is Dr. Charles Steele, President and CEO of the Southern Christian Leadership Conference, the organization once led by Dr. Martin Luther King.

Constellation NewEnergy Terminates Dent’s Contracts and the Legal Battle

In 2018, Constellation NewEnergy terminated its energy contracts with Dent when two unnamed persons accused him of sex harassment and improper conduct. Constellation refused to disclose the names of the persons who had made these defamatory statements.

In 2019, we filed a Rule 224 presuit discovery petition in the Cook County Circuit Court to compel Constellation to disclose the names of Dent’s accusers. (Dent et al. v. Constellation NewEnergy et al., 2019 L 002910). Constellation filed a motion to dismiss the petition for failure to state a claim under Illinois Civil Procedure Code Section 2-615. When a defendant in a civil suit files a 2-615 motion, black letter Illinois law requires the court to accept as true, for purposes of that motion, all of the well-pled facts alleged in the complaint or petition.

In Dent’s case, though, the Circuit Court judge ignored the facts pled in Dent’s 224 petition and accepted as true facts that Constellation improperly added in its 2-615 motion. For example, Constellation NewEnergy refused to disclose to Dent the name of its third-party investigator, and that is exactly what Dent’s Rule 224 petition alleges. However, in a flagrant departure from the duties of a court in a 2-615 motion, the Circuit Court held that Constellation NewEnergy had disclosed the identity of the investigator.

During oral argument before the Circuit Court in July 2019, the trial judge agreed with me that Dent’s 224 petition was not a “fishing expedition.” (Dent et al v Constellation NewEnergy et al, 2019 L 002910, Transcript of Proceedings, July 19, 2019, at pg. 4, line 4 to pg. 4, line 20). Despite this, the Circuit Court denied Dent’s 224 petition on the basis of a case that prohibited the use of that rule for “fishing expeditions.” (Low Cost Movers v. Craigslist, Inc., 2015 IL App (1st) 143955). Low Cost Movers was neither relevant nor applicable to Dent’s petition, and neither Dent nor Constellation had cited it in briefing on the 2-615 motion.

Constellation NewEnergy told Dent, and the 224 Petition alleged, that it was going to terminate all of Dent’s contracts because of the allegations that had been made against him. Yet the Circuit Court held that the cause in fact and proximate cause of Constellation’s termination of Dent’s contracts was…(wait for it…wait for it…)…Constellation’s termination of Dent’s contracts. Yes, you read that right. (Dent et al v Constellation NewEnergy et al, 2019 L 002910, Memorandum Opinion and Order, July 31, 2019, pgs. 2-3). In the Cook County Circuit Court’s hands, cause and effect became fungible commodities. If I knew a first semester law student who committed so puerile a logical fallacy I would recommend (gently, of course) serious consideration of an alternative career.

We appealed this ruling to the First District Court of Appeals. In November 2020 the Illinois Appellate Court, without requiring oral argument, reversed the Circuit Court on grounds of abuse of discretion and held that Rule 224 was indeed the appropriate procedure for Dent’s case. (Dent et al. v. Constellation NewEnergy, Inc. et al., 2020 IL App (1st) 191652, 175 NE3d 742).

Constellation then filed a petition for leave to appeal with the Illinois Supreme Court, which that court granted in March 2021. The case was argued before the Illinois Supreme Court on September 22, 2021. You may replay the oral argument here:

Constellation NewEnergy’s Private Eye

In public statements Constellation NewEnergy claims that the allegations against Dent were “confirmed by an independent third party investigator.” That is their chief defense. But Constellation’s own allegations tell a different story.

At about 5:45 p.m. on July 10, 2018, Dent arrived at the JW Marriott Hotel at 151 W. Adams Street in Chicago, where Constellation NewEnergy had arranged for its golfing guests to collect passes and other items for their golf outing the following day. Constellation claims that an unnamed man, Person B, observed Dent at the JW Marriott, and Person B alleged that Dent was “drunk and disorderly” at that place and time.

After collecting his items for the golf outing, Dent drove from the JW Marriott to the Shedd Aquarium, at 1200 South Lake Shore Drive. As the crow flies, the JW Marriott is about 1.6 miles from the Shedd Aquarium. Dent arrived at the Shedd Aquarium at or about 6:30 p.m. on July 10, 2018.

Constellation NewEnergy’s pre-golf cocktail reception, where they alleged that Dent physically groped an unnamed woman (Person A), was held on the Shedd Aquarium’s patio. That patio is an open space overlooking Lake Michigan.

More than 100 people were at Constellation NewEnergy’s party at the Shedd Aquarium patio.

Dent had invited Sam Cunningham, the Mayor of Waukegan, to the Constellation NewEnergy cocktail party. Constellation knew that Dent had invited the Mayor of Waukegan to their cocktail party as his guest. Dent and Mayor Cunningham were generally in each other’s company throughout this event.

In Chicago on July 10, 2018 the sun set at 8:28:31 p.m. Dent left the Constellation party at about 8:00 p.m., about a half hour before sunset.

Constellation NewEnergy claims that the allegations against Dent were confirmed by a third-party investigator. This is more than curious because the alleged groping incident occurred on the patio of the Shedd Aquarium, an open space, in front of a crowd of more than 100 people, and in daylight. Yet the only person who Constellation NewEnergy claims witnessed this alleged groping is Person B – the unnamed man who was inside the JW Marriott Hotel — 1.6 miles away.

According to Constellation NewEnergy’s allegations, not one person – not one – who was at the Shedd Aquarium patio on the evening of July 10, 2018 witnessed any alleged groping by Dent.

According to Constellation NewEnergy’s allegations, Dent would have had to drive through downtown Chicago traffic, during the weekday evening rush hour, in a drunken condition, to get from the JW Marriott to the Shedd Aquarium. At these times the CPD usually keeps an eye out for drunk drivers, especially after “happy hours.” Dent was not stopped for any reason as he drove from the JW Marriott to the Shedd Aquarium.

According to Constellation NewEnergy’s allegations, Dent would still have been drunk at the Shedd Aquarium cocktail party, which immediately followed his visit to the JW Marriott. Dent was at Constellation NewEnergy’s cocktail party at the Shedd Aquarium for about an hour an a half. Yet Constellation NewEnergy does not allege, and has not presented any witness who has alleged, that Dent was drunk at the Shedd Aquarium event.

Though Constellation NewEnergy knew that the Mayor of Waukegan was Dent’s guest at the Shedd Aquarium party that evening, its supposed third-party investigator never called the Mayor of Waukegan to ask if he saw anything.

Based on Constellation NewEnergy’s own allegations, Person B, their supposed eyewitness, was not even at the Shedd Aquarium when the groping incident is alleged to have occurred. Rather, he was inside the JW Marriott Hotel at 151 West Adams Street.

The Witness to the Alleged Groping Had X-Ray Vision

As a kid I used to watch reruns of The Adventures of Superman (1952-1958) starring George Reeves as Clark Kent, the mild-mannered reporter for The Daily Planet newspaper. In that TV series, X-ray vision was one of Superman’s superpowers. Constellation NewEnergy’s independent third party investigator believes that Person B, their supposed eyewitness to the alleged groping, had X-ray vision better than Superman’s since Person B could see through 1.6 miles’ worth of concrete and steel buildings, all the way from 151 West Adams Street to 1200 South Lake Shore Drive.

Constellation’s Person B can see through tall buildings.

That’s quite a trick.

Constellation NewEnergy’s claim that it had an independent third-party investigator confirm the accusers’ allegations is inexpressibly ridiculous. Constellation refused to name its supposed investigator, perhaps to spare him or her being imprinted with a mark of indelible ridicule by having to explain how their only witness to the alleged groping saw everything through 1.6 miles’ worth of steel, concrete and downtown Chicago buildings.

Whoever Constellation’s investigator was, they make Inspector Clouseau look like Sherlock Holmes.

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