ML20212N494

Case & M Gregory Motion for Appointment of Legal Counsel for Minority Applicants & for Clarification of Discovery & Other Responses Received from Applicants.* W/Certificate of Svc

ML20212N494
Person / Time
Site:	Comanche Peak
Issue date:	03/09/1987
From:	Roisman A Citizens Association for Sound Energy, GREGORY, M., TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
To:	Atomic Safety and Licensing Board Panel
References
CON-#187-2760 CPA, OL, NUDOCS 8703130046
Download: ML20212N494 (9)

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A 79 BEFORE Tut SOCKETED UNITED dTATrS USNRC NUCLEAR REGULATORY COMMISSION Ukf ll f 6(14 Before the Atom'ic Sarety and Licensing Board CFFICE cr 5ECFETM Y

' n tne' Matter of

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00CHEilhG A sEi;y;ct i

50-445,8344%!-06 '

ukt. Nos.

TEXAS UTILITIES GENERATING COMPadY, 1

Dkt. No. uO-443-CPa e_t, a 1,.

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.(Comanche Peak steam clectric i

btation, unit 11 1

Cabt AND MEDD1E GREGORY'S MOTION

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FOR APPUlNTMENT OF LEGAL COUNSEL FOR THE MINORITY APPLICANTd AND FOR CLAR1FICAT10N OF DISCOVERY AND UTHER RESPONSES RhCElVED FROM APPLICANTS By letter to the, Board dated February 19, 1987, counsel for TutC' Mr. Wooldridge states that "neither this firm nor any of the other counsel who have appeared in support of the 11 cense application has or ever haa any attorney-client relationship witn any.CPSsS owner other than TU Electric, nor have they uncertaken, or will they undertaxe, to provide legal advice or counsel otner joint owners as to any matter...."

Tnis statement should oe contrasted to the statement wnien appears in Mr. wooldridge's letter of' august 28, 19oo,.co tnis Board in wnich ne stated tnat "LtJnese firms Lfour are listed Defore tnis quote; have Deen retained by Texas Utilities Electric Com.nany and appear in this l proceeding on behalf of all of the applicants pursuant to a ;oint Ownership Agreement among them."

Are tnese two statements reconcilablet Mr. Wooldridge I

believes so and attempts in nis February 19th letter to show tnat appearing "on Dehalf of" tne minority Applicants as a result of l

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being retained by TUEC pursuant to an ownersnip agreement is different from naving an' attorney-client relationship with those f

persons on whose "benalf" an attorney appears. - A fuller

' articulation of tnis claim and tne rebuttal to it are included in the attachment to.this motion, which contains the portion of the orief tiled oy TMPA in state court that focusses on the issue of " representation" and the portion of TUEC's brief responding to that issue.

As Mr. wooldridge acknowledges, TUEC's view of the facts and the law did not prevail and the disqualification order was issueo.

While CAST is of the opinion that the state court decision is clearly correcti the purpose of this motion is not to press that point.

This Boara'has already indicated an independent interest in the resolution of this matter by the state court and the possibility that such resolution "may require our action in the future."

Memorandum and Order (Discovery of Tex-La Documents),

p. 4 (11/28/66).

Our concern is with two separate matters.-

First, wnat is the effect of Mr. Wooldridge's current position oisavowing any attorney-client relationship with or representation of the minority Applicants by counsel for Applicants in this case on the' completeness of answers to discovery from CASE which have been addressed to " Applicants" and inquiries from tne Board and Staff adoressed to " Applicants /"

Tne Au ust 2d, 1966, letter from Mr. Wooldridge is a direct w

result of CASE's concern on that point (Prehearing Conference,

' August 19, 1966, Tr. 24,605-606) and that letter purports to put

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that question to rest by asserting-sufficient connection between l

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counsel in the NRC. proceeding and the minority Applicants tnat

,the,uoard and' the parties -could reasonably assume that counsel for " Applicants" spoke for all applicants even in respondind to.

alscovery.

But Mr. Wooldridge and Mr. Reynolds assert in 5

raffid'avits filed with'the state court that nave never been privy to any' confidential 1

communications, written or oral, of Tex-La, BraLos or TMPA and no confidences of any of tnose' entities nave Deen impartea to me in any capacity wnatsoever.

Affidavit of Robert A.

Wooldridge Jan. 20, 1987 1 have never consulted with or taken direction from any representative of those-entities LBrazos, TMPA,. Tex-LaJ; Deen provided or sought any information confidential to those entitles; Affidavit of Nicnolas S.

Reynolds Jan. 20, 19u?

What these affidavits reveal is that, at least to the extent the minority Applicants have in -their possession information relevant to any CASE ciscovery and any Board or Staff inquiry that they consider confidential, its existence has never Deen disclosed ~ in these proceedings because~. counsel for applicants in.

these proceecings have never.sougnt such information.

This explains in part the cartons of~ data divulged by the minority Applicants after CAST pressed discovery against them I.

individually, much of which was undeniably relevant to prior and

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other outstanding discovery requests in the OL proceeding.

It is even possible.that:none of the discovery propounded by CASc and none of the Board and Staff inquiries have ever been. presented to the minority Applicants, much less answered by them.

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Although some of the discovery requests and otner inquiries addressed to " Applicants" clearly only contemplated an answer by TUcC, others would equally. clearly have required answers from each Applicant if they were to be complete.

For instance, CASE

' filed Interrogatories RE:

The MAC Report and Issues Raised by the MAC Report on June 24, 1985.

Included among the questions were the following:

2(f) (12)

Were all " inactive and closed corporate files" reviewed in connection with the prudency audit?

If so,what else was found which may be discoveraole?

If not, provide them or access to them for inspection and copying.

2(f)(13)

Do similar active or inactive /

closed corporate files exist at TUSI, TUEC, TU, DP&L, TP&L, TESCO, minor owners of Comanche Peak, and/or TUGCO's offices (either in Dallas, other offices, or at the i

plantsite)?

If so, answer all applicable questions herein regarding'those' files.

If your answer is that you don't know, provide them or access to them for inspection and copying.

Applicants purported to answer these questions in light of the Board's. Memorandum.and Order (Motions Related to the MAC Report) g7/22/8'51 as follows ( Applicants' Responses to CASS's Interrogatories Re:

The MAC Report and Issues Raised By the MAC Report (8/12/85), p. 10 ) :

In the Board';s Memorandum and Order (Motions Relating to the MAC Report) dated July 22, 1985, these interrogatories are stricken to the extent that they are "not responsive to outstanding discovery requests."

All of the closed files which were in Mr. Schmidt';s office were reviewed and will be reviewed i a

again as'part ofLthe Plan for Inspection of' Files,: attached.

Applicants are not aware of any documents, other than the.MAC report, whether in those files or elsewhere, which would be responsive to outstanding discovery ;

requests that have not previously been produced.

It is not.at all clear that the " Applicants" who are alleged to be unaware of other documents responsive to previous discovery requests that were not already provided include the minority.

_ Applicants, particularly in light of the extensive nonitoring reports prepared by consultants for the minority Applicants and

'not made available until a year later.

Similarly, various objections to discovery were advanced as

.being made on behalf of all Applicants but may in f act only have represented the view of TUEC.

For example, in the same discovery responses noted above, " Applicants" are purported to have all objected to the production of the prudency audit.

See Answer

- 1.d., supra,

p. 2.

Similar objections are now pending in the CPA docket to Meddie Gregory'is Discovery Requests 5 and 6.

See Joint Intervenors' Opposition to Motions for Protective Order and Motion to Compel RE:

Gregory Discovery (Sets 5 and 6) (3/3/87).

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Do the minority Applicants object to production of tnese prudency audit materials and, if not,- what effect does that have on CASE's right to have.the requested discovery?

Now that the previously simmering conflicts among Applicants have boiled 'over, it is apparent that, although CASE, the Staff, and this Board believed Applicants spoke with one voice because that one voice apparently represented all of them, tnat belief probably is and always has been erroneous.

Answers from " Applicants" were apparently only i

from TUEC without even consultation with the minority Applicants..

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The proper remedy in this case is to require that each minority Applicant respond under oath to the discovery already filed and answered indicating to what extent the answer given is adopted by the minority Applicant and supplementing the answer as necessary to assure that a complete answer has been provided.

However, before any of'the minority Applicants can properly respond to discovery, they should be represented by counsel in this proceeding.

On at least three occasions, this Board has stepped in to' assure that persons appearing before it and being required to provide answers under oath were represented by counsel of'their choice.

One was Mr. Lipinsky, one was a witness called by. the Board and appearing in camera-with reference to Lipinsky, and one was another witness called by the Board ano appearing in camera with reference to broader paint coating issues.

Following these precedents, we believe this Board should now assure itself that the minority Applicants are adequately represented by counsel in this proceeding and that such counsel have properly entered their appearances and subjected themselves to this Board's Jurisdiction.

As the Board is aware, the official position of TUEC is that the minority Applicants do not have the right to separate representation here except under certain very narrow circumstances.

See Applicants' Response to CASE (10/20/86)

Motion to Compel (Tex-La Documents), 11/4/86, p.

1, fn 1.

Since that view flows from the interpretation of a private contract with which tha minority Applicants are not necessarily in agreement, and since TUEC's view of the meaning of that contract l l

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deprives th'e minority Applicants of adequate representation here, this Board has the power and the duty to order the minority

' Applicants to obtain. counsel who will represent their interests in'these proceedings'to which they are parties.

For the foregoing reasons we urge the Board.to grant the relief sought.

Respectfully submitted, THONY Z.

O SMApf Trial Law fod Public Justice 2000 P S et, NW, #611 Washing on, D.C.

20036-(202) 463-8600 Counsel for Meddie Gregory in CPA Docket Counsel for CASE in OL Dockets Dated:

March 9, 1987,:

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UNITED STATES OF AMERICA ~

00LKETED NUCLEAR REGULATORY COMMISSION

.USNRC

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

$7 MNL11 P6':17 In-the Matter of

)

0FFICE Of SELRt.IARY

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00ChETitiG A SERvlCI.

TEXAS UTILITIES GENERATING J

BRANCH COMPANY, et al.-

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. Docket Nos. 50-445-OL-

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and. 50-446-OL (Comanche Peak Steam Electric

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and 50-445-CPA Station, Units 1 and 2)

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CERTIFICATE OF SERVICE By my signature below,-I hereby certify that true and correct copies of CASE AND MEDDIE GREGORY'S MUT10N FOR i

-- APPOINTMENT OF LEGAL COUNSEL FOR THE MINORITY APPLICANTS AND FOR CLARIFICATION OF DISCOVERY AND OTHER RESPONSES RECEIVED FROM APPLICANTS have-been sent to the persons listed below this 9th day of March 1987 by:

Express mail where indicated by *; Hand-

- deliverv ~ where indicated by * *; and First Class Mail unless otherwise indicated.

Administrative Judge Peter B.

Bloch U.S. Nuclear Regulatory Commission Washington, D.C.

20555-Dr.. Kenneth A. McCollom-

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1107 West Anapp Stillwater, Oklahoma 74075 Dr. Walter H. Jordan 881 W. Outer Drive Oak Ridge, Tennessee 37830

-Elizabeth B. Johnson Oak Ridge National Laboratory l

P.O. Box X, Building 3500 Oak-Ridge, TN 37830 i

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. Robert A. Wooldridge,' Esquire Worsham,-Forsythe,-Sampels L-

&.Wooldridge 2001 Bryan Tower, Suite 3200 Dallas,, Texas 75201

'Geary S. Mizuno, Esquire Office of Executive Legal Director

'U.S.. Nuclear Regulatory Commission

-Washington, D.C.

20555 Docketing & Service Section

~ Office of the Secretary U.S_ Nuclear Regulatory Commission Washington, D.C.

.20555

- Renea Hicks, Esquire Assistant Attorney General Environmental Protection Division Supreme Court Building Austini Texas 78711 Mrs. Juanita Ellis President, CASE 1426 S.

Polk Dallas, Texas 75224 Mr. W.G. Counsil Executive Vice President Texas Utilities Generating Co.

Skyway Tower, 25th-Floor 400 N. Olive Street Dallas, Texas 75201

' Thomas Dignan, Esq.

Ropes & Gray

-225 Franklin Street Boston, Massachusetts 02110

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