ML20215K914

Memorandum & Order.Memorandum (Appointment of Legal Counsel; Clarification of Discovery).* Orders Util Not to Interfere W/Minority Owners That Wish to Fulfill Obligations to Assure Completeness of Factual Record.Served on 870505

ML20215K914
Person / Time
Site:	Comanche Peak
Issue date:	05/04/1987
From:	Bloch P Atomic Safety and Licensing Board Panel
To:	TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
References
CON-#287-3386 86-528-02-CPA, 86-528-2-CPA, CPA, NUDOCS 8705120032
Download: ML20215K914 (6)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before Administrative Judges:

Peter B. Bloch, Chaiman OFFIE - ~~ , m us Dr. Kenneth A. McCollom 00CHEip:d'"Of

1. pm Dr. Walter H. Jordan

- SERVED MAY -51987 In the Matter of Docket No. 50-445-CPA

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TEXAS UTILITIES ELECTRIC COMPANY, et al.)

ASLBP No. 86-528-02-CPA (Comanche Peak Steam Electric Station, Units 1 and 2) )

) May 4, 1987 MEMORANDUM AND ORDER I

MEMORANDUM (Appointment of Legal Counsel; Clarification of Discovery)

The Board is privileged to have before it three fine legal briefs relating to CASE _and Meddie Gregory's Motion for Appointment of Legal Counse! for the Minority Applicants and for Clarification of Discovery and Other Responses Received from Applicants, March 9, 1987.2

I The Board is not following its proposed computerized filing format in this order. The parties need no longer do so either. We are still convinced of the importance of facilitating our analysis of the record of this case through whole-text search; but we will l undertake substantial reanalysis before making another,

! less-ambiguous proposal. Meanwhile, we would welcome a proposal from any party sympathetic to our desire to obtain filings that would permit us to efficiently analyze as large a portion of the record as possible through computerization and therefore also to have more time for analysis of the non-computerized portion of the record. We sincerely believe that this legitimate need of the

/ Board is not prejudicial to any party.

2 The other two briefs are Applicants' Response to CASE and Meddie

. (Footnote Continued) g522OO32870504 g ADOCK 05000445 PDR

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Counsel: 2 4

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The present controversy arose when Citizen's Association for' Sound Energy and Meddie Gregory (joint interverors) called to the Board's attention certain filings of TUEC that- raised questions in joint . inter-venors' mind about whether counsel for joint applicants represented the entire owner's consortium and, therefore, whether joint intervenors had been receiving full answars to their. discovery requests. The hidden premise is that without an attorney-client relationship, the attorney for the joint applicants might- have difficulty. conducting the kind of open and frank discussion with minority owners that would' lead to full ,

and fair production of information in discovery.

The difficulty joint intervenors saw is that counsel for the owner's consortium has been appointed pursuant to an ownership agree-ment, did not appear to have an attorney-client relationship with the >

mincrity members, and did not appear to be answering fully those inter-venor discovery requests that sought information from the minority members.

As joint intervenors thought, Section 5.01 of the ownership agree-ment provides that i

The Project Manager, acting as agent for the parties, shall take whatever action is necessary or appropriate to seek and obtain all licenses, permits, and other rights and regulatory approvals (Footnote Continued)

Gregory Motion for Appointment of Legal Counsel for Minority i

l Applicants and for Clarification of Discovery Responses, April 16, 1987 - ( Applicants ' Response) and NRC Staff Response to CASE and Meddie Gregory Motion for Appointment of Legal Counsel for Minority Applicants and For Clarification of Discovery pesponses, March 31 l 1987 (Staff Response). l l

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Counsel: 3 necessary or appropriate to the conptruction and operation of the Project and to the use of the fuel.

Joint Applicants, in their pleading before us, interpret this agreement as governing. Hence, when the Project Manager appoints an attorney, the attorney represents the project manager only. There is no attorney-client relationship between the minority owners and the attorney.4 What appears to have happened as the result of joint intervenors' filing is that Applicants have reassessed the method by which they were responding to discovery and have instituted a new procedure that they assure us will lead to full disclosure of all facts requested by joint {

intervenors.5 Applicants also acknowledge that they have the obligation to fully disclose all relevant information on behalf of all owners.6 Applicants argue that we should not order owners individually to respond to past discovery requests and to confirm whether the Minority Owners had any infomation that was not included.7 3

Applicants' Response at 8-9.

4 Applicants' Response at 17.

5 The Project Manager "is currently investigating to ensure that it responded to intervenors' discovery request fully, thereby providing Intervenors with all relevant, non-privileged, responsive material and infomation known to TU Electric or to any of the other Joint Owners. TU Electric began reviewing the record of its historical discovery when [ joint intervenors] . . . first raised .

. . concerns by letter." Applicants' Response at 11.

6 Applicants' P.cspor.ce at 9.

7 Applicants' Response at 7.

Counsel: 4 On this state of the record, we know that we are operating in ignorance and we are therefore in somewhat of a quandary. We do not know what Applicants' prior practice was with respect to obtaining facts from minority members. We do not know the scope of the present investi-gation of the project manager nor how the present investigation differs from past practice. Applicants appear to be operating with good inten-tions. However, we feel in the dark about what has happened.

Despite this concern that there is a gap in our knowledge, we see no need for further briefing. This is because there is a complete remedy available. We recognize the obligation of minority applicants, apart from any Board order, "to provide accurate, relevant, and complete information" to both the Staff of the Commission and to this Board. No contractual agreement can negate that obligation.8 We find that minority members are responsible for assuring the completeness of our factual record and the adequacy of factual responses to discovery. We agree with Staff (with a few wording changes of our own) that Applicants must either transmit to the Board the differing views of minority Applicants concerning factual matters or must permit, without threat of legal action, minority applicants to bring factual information to the parties and the Licensing Board.9 8 Staff Response at 5; see also 2-5.

9 Staff Response at 6.

Counsel: 5

-In this respect, we find that Texas Utilities Electric Company has an obligation that goes beyond its representations to us.10 Minority owners have independent responsibilities to this Board. Texas Utilities must not interfere with.them in any way in fulfilling those responsibil-ities.11 0RDER' For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 4th day of May 1987 ORDERED That Texas Utilities Electric Company shall not interfere with minority owners that may wish to fulfill their obligations to assure the ccmpleteness of our factual record and the adequacy of factual responses to discovery.

10 Applicants' Reply at 10.

' 11 We see no reason to assure that the minority members have independent representation in this proceeding. They have counsel and they are not complaining about the quality of their counsel at this time. If they have real' complaints about continuing to want to give us factual information and being impeded from doing that, then we expect them to come to us with their concerns.

We received the April 28, 1987 filing of Brazos Electric Power Cooperative after we had drafted this memorandum and order. It

, appears that our opinion is consistent with the needs of Brazos, so i we have not specifically considered that filing.

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Counsel: 6 In all other respects the motion of March 9,1987 of CASE and Peddie Gregory is denied.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

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Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE i Bethesda, Maryland I

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