ML20205M361

NRC Staff Response to Case & Meddie Gregory Motion for Appointment of Legal Counsel for Minority Applicants & Clarification of Discovery Responses.* W/Certificate of Svc

ML20205M361
Person / Time
Site:	Comanche Peak
Issue date:	03/31/1987
From:	Mizuno G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-2971 CPA, OL, NUDOCS 8704020363
Download: ML20205M361 (11)

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DOCHETED USNRC March 31,19 UNITED STATES OF APfERICA -

NUCLEAR REGULATORY COMMISSION OFFICE OF E: (Tare BEFORE THE ATOMIC SAFETY AND LICENSING BOARbOW m c

In the Matter of )

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l TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL COMPANY, ET AL. ) 50-446-OL

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(Comanche Peak Steam Electric ) 50-455-CPA ,

Station, Units 1 and 2) )

i NRC STAFF RESPONSE TO CASE AND MEDDIE GREGORY MOTION FOR APPOINTMENT OF LEGAL COUNSEL FOR MINORITY APPLICANTS AND FOR CLARIFICATION OF DISCOVERY RESPONSES I. INTRODUCTION On March 9, 1987, Intervenors CASE and Meddie Gregory filed a 1

Motion for Appointment of Legal Counsel for the Minority Applicants and l

for Clarification of Discovery and other Responses Received from Applicants (Motion) in both the operating license and construction permit extension proceedings for CPSES. The Motion first asks the Board to require that all minority Applicants II respond under oath to discovery l

filed by Intervenors and answered by Applicants. Motion , p . 6.

However, Intervenors also indicate that before requiring the minority Applicante to answer, the Board should order the minority Applicants to l

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'-1/ The minority owners and co-applicants with TU Electric for the l Comanche Peak Steam Electric Station (CPSES) are Brazos Electric Power Cooperative (Brazos), Texas Municipal Power Agency (TMPA),

and Tex-La Electric Cooperative (Tex-La). Hereafter, they will be referred to as the " minority Applicants."

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obtain legal counsel "who will represent their interests in these proceedings to which they are parties." 2_/ The Staff hereby responds to Intervenors' Motion.

II. BACKGROUND At the August 19, 1986 prehearing conference, Intervenor CASE raised a question regarding whether Applicants' responses to discovery were on behalf of all Applicants, including the minority Applicants.

Tr. 24,606-07. In addition, CASE inquired whether the legal counsel retained by lead Applicant TU Electric also represented the minority Applicants es well. Tr. 24,605-606. Applicants responded to the second CASE question in an August 28, 1986 letter from Robert Wooldridge to the Board. In that letter, Mr. Wooldridge of the law firm Worsham ,

Forsythe, Sampels and Wooldridge (Worsham, Forsythe) stated:

The attorneys who have appeared on behalf of the Applicants in this case ... have been retained by Texas Utilities Electric Company and appear in this proceeding on behalf of all -the Applicants pursuant to a Joint Ownership Agreement among them.

Despite the filing of that letter, there continue to be disputes between CASE and Applicants regarding the matters raised by CASE at the August 1986 Prehearing Conference.

On February 10, 1987, Robert Wooldridge filed a letter with the Board which, inter alia, states that:

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2/ Although Intervonors' pleading caption suFgests that they are asking the Board to " appoint" legal counsel for the minority Applicants, the text of the pleading states that Intervenors are requesting the Board i to direct minority Applicants to seek legal counsel apart from that ,

retained by TU Electric, the lead Applicant. '

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neither this firm nor any of the other counsel who have appeared in support of the licensing application has or ever had any attorney / client relationship with. any CPSES owner  ;

other than TU Electric, nor have they undertaken, or will l they undertake, to provide legal advice or counsel the other j joint owners as to any matter...  !

Intervenors CASE and Meddie Gregory then filed their Motion. 3_/

III. DISCUSSION The Staff, in general has not taken positions on discovery disputes

' between other parties in this proceeding and therefore takes no position ,

concerning Intervenors' request that the minority Applicants respond anew to previous Intervenor discovery. Intervenor's motion, however, raises issues relating to the responsibilities of the lead and minority Applicants in the hearings, as well as their other responsibilities ,

vis-a-vis the NRC. Issues concerning the rights and responsibilities of the lead and minority Applicents in the hearings, as well as before the i

agency in connection with their applications for a construction permit extension and operating licenses are natters concerning the Commission's procedural process which go beyond a simple discovery dispute. In

-3/ On March 11, 1967, the Brazos Electric Power Cooperative (Brazos) filed a petition pursuant to 10 C.F.R. I 2.206 requesting the Director of NRR to order TU Electric to purchase the ownership interest in the CPSES project. Brazos contends that TU Electric made material false statements regarding the nature of legal representation vis-a-vis the interests of Brazos in the operating

, license and construction permit extension proceedings. The Staff is currently assessing the 5 2.206 petition, and will respond separately

to that petition.

On March 16, 1987 Intervenors transmitted a letter to the Board and parties supplementing their Motion by referencing arguments presented in, and exhibits attached to, the Section 2.206 petition filed by Brazos.

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addition , that part of Intervenors' Motion requesting that the Board direct minority Applicants to retain legal counsel to represent them in the hearings is not a discovery matter. The Staff has significant interests in these matters which the Board should consider in ruling on the Motion.

An applicant for either a construction permit or operating license has a duty to provide complete and accurate information to the Staff in connection with its application, as well as to the Licensing Board and parties in connection with a hearing on its application. See Virginia Electric and Power Co. (North Anna Power Station , Units 1 and 2},

CLI-76-22, 4 NRC 480 (1976), aff'd sub nom. Virginia Electric and Power Co. v. NRC, 571 F.2d 1289 (4th Cir. 1978); Petition for Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 418 (1978); Consumers Power Co.

(Midland Plant, Units 1 and 2), A LAB-691, 16 NRC 897 (1982). This dual obligation to provide complete and accurate information to both the Staff and the Licensing Board flows from the division of responsibilities between the Staff and a Licensing Board with respect to an applicat!on.

The Staff is responsible for resolving all safety and environmental matters not placed into controversy by parties. Southern California Edison Co.

(San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-680, 16 NRC 127, 143 (1982), citing South Carolina Electric and Gas Co.

1 (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1156, n.31 (1981). The Licensing Board, on the other hand, holds the responsiblity for resolving only those matters in controversy between the parties, unless it determines, sua sponte, that an otherwise uncontested matter raises a serious safety, environmental or common defense and safety concern. 10 C.F.R. Section 2.760a; State of Ohio v. NRC, i

t Nos. 86-4019/4038/4037, slip o_p . at 5 (6th Cir. March 17, 1987);

Consolidated Edison Co. of New York (Indian Point Nuclear Generating Station , Unit 3), CLI-74-28, 8 AEC 7 (1974); Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24,14 NRC 614, 615 (1981). Neither the Staff nor the Licensing Board would be able to properly fulfill their duties and responsibilities unless an applicant provides accurate and complete information.

The foregoing obligation exists regardless of whether the licente or permit is for a single appifcant or multiple applicants. See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),

DD-F3-17,18 NRC 1289 (1983). The NRC's regulatory authority would be truncated and the health and public safety goals frustrated if all co-applicants were not under - an obligation to assure that all information provided to the agency is complete and accurate. See Public Service Co.

of Indiana (Marble Hill Nuclear Generating Station , Units 1 and 2),

ALAB-459, 7 NRC 179 (1978). It follows that the obligation of each co-applicant to provide accurate, relevant, and complete information exists irrespective and independent of any private contractual agreements among the co-applicants regarding the responsibilities for design, construction, operation and financing of the licensed facility, and for prosecution of the license before the NRC.

Applying these principles to the CPSES proceedings, it is clear that regardless of whether there evists an attorney-client relationship between the minority Applicants and the law firm (s) retained by the lead Applicant TU Electric, all of the co-applicants for the CPSES construction permit extension and operating license have a responsibility to assure that

discovery responses to the Intervenors are accurate and complete, just as they have the responsibility to assure that all information submitted to the Staff and evidence submitted into the hearing records is accurate and complete. TU Electric has held itself out to the Licensing Board and the parties as the lead Applicant and the entity responsible for coordinating the actions of the co-applicants with regard to the licensing process, as well as the hearings. Until recently, the status of TU Electric as lead Applicant has not been questioned. Accordingly, the Staff, the Intervenors and the Licensing Board have consistently looked to TU Electric, and counsel retained by it , as conduits for transmitting ,

discovery and information requests to all of the co-applicants, and expect that TU Electric's response constitutes the collective response of all co-applicants , unless stated otherwise. Pioreover, if TU Electric's response is not on behalf of all co-applicants, it must either transmit the differing views of the minority Applicant, or otherwise not interfere with the efforts of the minority applicant to bring this information to the parties and the Licensing Board. O A minority Applicant not in agreement with , or wishing to supplement TU Ele::tric's response is i

under the obligation to assure that its disagreement or additional information is brought, either directly or through the auspices of the lead

-4/ The existence of a private contract between co-applicants cannot supplant or interfere with the responsiblity of each co-applicant to assure that accurate and complete information is provided to the NRC. Thus, TU Electric may not prevent a co-applicant from informing the NRC of relevant information it does not wish to be made public , on grounds that the Joint Ownership Agreement designates TU Electric as the lead applicant who is solely responsible for prosecuting the operating license application and the associated hearing.

Applicant to the attention of the Staff, the Intervenor, and the Licensing Board, as appropriate. 5 The burden of ferreting out all relevant information and presenting any divergent views or information rests on 4

the co-applicants; absent such revelations the Board and parties have the right to assume that what is submitted by the lead Applicant TU Electric j is done on behalf of, and represents the position and views of all the co-epplicants.

3 The Staff assumes that the co-applicants are aware of their legal responsibilities and obligations in both the hearing and in connection with their construction permit and operating license extension applications, as outlined above. $# Because of the lead Applicant's duty to fully disclose j all relevant information on behalf of all co-applicants, Intervenors' re-quest that the Board direct the minority Applicants to obtain legal counsel to represent them in the hearings should be denied. Even if the Board m.

has such authority (a question which need not be reached), such direc-tion would clearly be a serious and drastic step, not to be undertaken without a clear showing that such action is necessary to ensure the inte-grity of the hearing record. Intervenors have not made any showing that 1

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5/ On March 24, 1987, the Staff was asked by the Licensing Board l Chairman whether counsel for the minority owners should have an

' opportunity to respond to CASE's Motion. As discussed above, it would be appropriate for counsel for any of the minority Applicants to independantly respond to CASE's Motion, to the extent that such minority Applicant's views on the Motion diverges from those of the lead Applicant, TU Electric.

'-6/ As noted above, the Staff takes no position with respect to Intervenors' request that minority Applicants be required to provide supplementary discovery responses to Intervenors' previously filed discovery.

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such action is necessary at this time. Intervenors suggest that the Board I has previously " stepped in to assure that persons appearing before it ... were represented by counsel of their choice," and citing the situa- 1 1

tion of Mr. Lipinsky. Motion, p. 6. Those situations are qualitatively different from the one at bar. Messrs. Lipinsky, Allen, and Roth were all private individuals who had not retained any attorneys to advise them prior to their appearence in the hearing. By contrast, all of the minority Applicants have been, and are currently being advised by legal counsel.

Indeed, at least one minority Applicant - Brazos - has undertaken to ad-dress the dispute regarding legal representation in the licensing hearing.

See note 3 above. Another minority Applicant - Tex La - has also ap-peared individually in this proceeding through counsel with respect to an i earlier discovery dispute. It is thus evident that minority Applicants are already being advised by legal counsel and will take whatever steps they feel are necessary to resolve any concerns they may have about their representation in the licensing hearing. Accordingly, the Licensing Board need not undertake the serious step of directing the minority Ap-plicants to obtain separate legal counsel to enter a general appearance in 1

the hearings; limited appearance by counsel for one or more minority Ap-plicants, as has already occurred without the direction of the Board,

! would suffice to assure that a full and accurate presentation of informa-tion is made by all Applicants. This is especially true where, as in this case, such direction by the Doard may well result in the breach of a pri- l vate contract, without any countervailing showing of need, viz., that the Commission's regulatory functions may be frustrated, or that the public '

health and safety is in jeopardy. Cf. Marble Hill, supra at 200-201.

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IV. CONCLUSION The Board should deny Intervenors' Motion to the extent that it re-quests the Board to direct the minority Applicants to retain legal counsel to represent them in the licensing hearings.

Respectfully submitted, Geady o. fizuno Counsel for NRC Staff Dated at Bethesda, Maryland this 31st day of March,1987 i

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NUCLEAR REGULATORY COMMISSION (

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DEFORE TIIE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL COMPANY, ET AL. ) 50-446-OL

)

(Comanche Peak Steam Electric ) 50-455-CPA Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO CASE AND MEDDIE GREGORY MOTION FOR APPOINTMENT OF LEGAL COUNSEL FOR MINORITY APPLICANTS AND FOR CLARIFICATION OF DISCOVERY RESPONSES" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class , or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 31st day of March,1987:

Peter D. Bloch, Esq. , Chairman

• Mrs. Juanita Ellis Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Polk Street U.S. Nuclear Regulatory Commission Dallas, TX 75224 Washington, DC 20555 Renea Hicks, Esq.

Dr. Kenneth A. McCollom Assistant Attorney General Administrative Judge Environmental Protection Division 1107 West Knapp P.O. Box 12548, Capital Station Stillwater, OK 74075 Austin, TX 78711 Elizabeth B. Johnson Robert A. Wooldridge, Esq.

Administrative Judge Worsham, Forsythe, Samples Oak Ridge National Laboratory & Wooldridge P.O. Box X, Building 3500 2001 Bryan Tower, Suite 2500 Oak Ridge, TN 37830 Dallas, TX 75201 Dr. Walter H. Jordan Joseph Gallo, Esq.

Administrative Judge Tsham, Lincoln & Beale 881 W. Outer Drive Suite 1100 Oak Ridge, TN 37830 1150 Connecticut Avenue, N.W. ,

Washington, DC 20036

2-i Elllie Pirner Garde Mr. W. G. Counsil Trial Lawyers for Public Executive Vice President -

Justice Texas Utilities Generating Company 3424 North Marcos Lane 400 North Olive Street, L.B. 81 '

Appleton, WI 54911 Dallas, TX 75201 William L. Brown, Esq.* Anthony Z. Rofsman, Esq.

U.S. Nuclear Regulatory Commission Trial Lawyers for Public Justice 611 Ryan Plaza Drive, Suite 1000 2000 P Street, N.W., Suite 611 Arlington, TX 76011 Washington, DC 20036 Mr. Ilarry Phillips William H. Burchette, Esq.

Resident Inspector / Comanche Peak Mark D. Nozette, Esq. ,

Steam Electric Station Heron, Burchette, Ruckert c/o U.S. Nuclear Regulatory Commission a Rothwell, Suite 700 -

P.O. Box 38 1025 Thomas Jefferson Street, N.W.

Glen Rose, TX 76043 Washington, DC 20007 Lanny Alan Sinkin James M. McGaughy Christic Institute GDS Assoc. Inc.

1324 North Capitol Street 2525 Cumberland Parkway, Suite 450 Washington, DC 20002 Atlants, GA 30339 Robert D. Martin

• Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comraission Board Panel

• 611 Ryan Plaza Drive, Suite 1000 U.S Nuclear Regulatory Commission Arlington, TX 76011 Washington, DC 20555 Robert A. Jablon, Esq. Atomic Safety and Licensing Appeal Spiegel & McDiarmid Board Panel *

1350 New York Avenue, N.W. U.S. Nuclear Regulatory Commission Washington, DC 20005-4798 Washington, DC 20555 Thomas G. Dignan, Esq. Docketing and Service Section*

Ropes & Gray Office of the Secretary 225 Franklin Street U.S. Nuclear Regulatory Commission Boston, MA 02110 Washington, DC 20555 m 6. A Gea y S. z no O Co sel or C Staff i

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