ML20215N716
| ML20215N716 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/04/1986 |
| From: | Finkelstein B BRAZOS ELECTRIC POWER COOPERATIVE, INC., SPIEGEL & MCDIARMID |
| To: | Bloch P, Johnson E, Mccollom K Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1399 OL, NUDOCS 8611070192 | |
| Download: ML20215N716 (7) | |
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7399 S PIE G E L &' McD I A R MI D 050 NCW YORK AVENUE. N.W.
GCORGE SPICGCL PC WASHINGTON. O C. 20005-4796 JOHN MICHAF' AORAGNA ROeCRT C. McDaAmeetO JOSCPM VAN iATON 8[7," "f, rELEPHONC 1202 879-4000 86 NOV 6 P12:02 JA CSN HO,,. COO reocco,,c,,,02,. -
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ALAN J ROTM SCOTT H. STRAUSS FRANCCS C. FRANCIS NANCY C. WtCGCRS DANICL I DAveOSON (ff[{ f r r [
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JOHN J. CONSCTT CYNTHIA S. SCOORAD GARY J. NCWCLL MARC R. POIRtCR Peter B. Bloch, Esq., Chairman Dr. Kenneth A. McCollom Administrative Judge Administrative Judge Atomic Safety and Licensing Dean, Division of Engineering Board Architecture and Technology U.S. Nuclear Regulatory Oklahoma State University Commission
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~Stillwater, OK 74078 Washington, D.C.
20555 Elizabeth B. Johnson Dr. Walter H. Jordan Administrative Judge Administrative Judge Oak Ridge National Laboratory 881 W. Outer Drive P.O. Box X, Building 3500 Oak Ridge, TN 37830 Oak Ridge, TN 37830 i
Re:
Taxas Utilities Electric Co., et al. (Comanche Peak Steam Electric Station, Units 1 & 2), Dockets No.
50-445-OL and 50-446-OL
Dear Administrative Judges:
The undersigned, counsel for Brazos Electric Power l
Cooperative, Inc., requested on Brazos's behalf that Ropes &
Gray, as counsel for Applicants, include the attached statement by Brazos in Applicants' response to CASE's Supplemental Response to Applicants' Motion for Protective Order Re 6/27/86 Discovery and Motion to Compel.
Ropes & Gray refused to do so.
Because Brazos deems it necessary that the Board be informed of the views of all applicants for operating licenses for CPSES Units 1 and 2, we respectfully request leave to specially appear and submit both Brazos's statement and the request to Ropes & Gray that the statement be included in Applicants' response.
Respectfully submitted, f&
2.x Bonnie S.
Blair Ben Finkelstein 8611070192 861104 Counsel for Brazos Electric PDR ADOCK 05000445 Power Cooperative, Inc.
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S PIEG E L & McD I A R MI D OSO NEW YORK AVENUE. N W.
GCONGC SPIEGCL. PC WASHINGTON. O C.20005-4798 JOMN MiCHACL ACRAGNA ROSCRT c McoiARMio JosCPM VAN CATON 7,g"^ #g ","j' 8
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. JAMCs N MORWOOo TELECOPiER r202 879-4001 R oANiCLeRyNCR ALAN J RoTw SCOTT w STRAUSS rRANCES C. FRANCIS NANCY C. WICGCRg oANiCL t oAviosON SCN FINECLSTEIN
?HOMAS N McHUGH. JR DONALO WClGMTMAN
- DANICL GUTTMAN SCOTT MCMPLING PCTCR it MATT MARGARCT A McGOLORICM OAvlO R STRAUS DANIEL J SCHNCC SONNIC S. SLAIR SARSARA S. CSSIN VHOMAS C TRAUGCR JOHN J COReCTT November 4, 1986 CYNTwiA a SOGORAD GARY J. NEWCLL MARC R PotRICR William S. Eggeling, Esq.
BY TELECOPY Ropes & Gray 225 Franklin Street Boston, MA 02110
Dear Mr. Eggeling:
I understand that you will be filing today a response to a Suppplemental Response to Motion for Protective Order and Motion To Compel filed by CASE which concerns the withholding of documents prepared in anticipation of litigation among the Applicants, and discusses the difficulties which have been created by TUEC's employment of Applicants' counsel in'the Texas District Court litigation.
This is a subject of interest to Brazos, and Brazos would like the record to reflect its position.
Accordingly, we request that you include the enclosed statement in Applicants' response.
Please contact Bonnie Blair or myself if there are any problems.
Respectfully submitted, f4 Ben Finkelstein l
Counsel for Brazos Electric Power Cooperative, Inc.
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s CASE's Supplemental Response to Motion for Protective Order and Motion To Compel discusses the difficulties which have been created by TUEC's employment of Applicants' counsel in the Texas District Court litigation.
Brazos hereby states its position on that subject for the record.
On or about May 29, 1986, TUEC filed a complaint against Brazos in Dallas County, Texas, District Court (Docket No. 86-6809, 14th Judicial District).
Among other things, TUEC seeks a judgment that it "has not failed to act with due diligence in performing its obligations under the Joint ownership Agreement" and that it "has not failed to construct Comanche Peak or to obtain a license for its operation in a timely manner."
The complaint was. subscribed by Worsham, Forsythe, Sampels &
Wooldridge as counsel for TUEC.
Worsham, Forsythe, Sampels & Wooldridge represents Brazos and the other Comanche Peak owners in these licensing proceedings.
Subsequent to TUEC's filing of its complaint, Brazos protested the use by TUEC in the Texas litigation of Brazos's own counsel in the licensing proceedings.
In a letter dated July 3, 1986 from Richard E. McCaskill, Executive Vice President and General Manager of Brazos, to Michael D. Spence, Division President, Texas Utilities Generating Company, Brazos states:
We recognize that there are differences between Texas Utilities Electric Company and its affiliates ("TUEC")
and Brazos Electric Power Cooperative, Inc. ("Brazos")
concerning TUEC's performance of its obligations relating to Comanche Peak.
I was very much surprised, however, that not only did TUEC file suit against Brazos during a. period of negotiations without any notice except your telephone call to me, after the suit had been filed, but also that TUEC used our counsel in the Nuclear Regulatory Commission ("NRC") licensing proceedings.
Under our Joint Ownership Agreement, Texas Utilities Generating Company ("TUGCO") is made agent for Brazos and is given the authority to act for.the parties with respect to NRC licensing.
As a result, we have been represented through TUEC in NRC licensing proceedings as a joint owner.
TUEC has broken the agency established by the Joint ownership Agreement.
Brazos is not in a position to affirm independently that the construction of Comanche Peak is consistent with NRC requirements.
As a result of your actions, it plainly cannot rely upon TUEC, TUGCO or your attorneys to advise it or act in a fiduciary capacity on its behalf as it has a right to do under the Joint Ownership Agreement.
Therefore, it is in no position as a co-applicant for the license to assure itself of the NRC that the plant will meet NRC standards.
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Brazos believes'that in representing Brazos in the licensing proceedings and in representing TUEC in the District Court action, Worsham, Forsythe, Sampels & Wooldridge has created a direct conflict of interest.
Brazos has'not given its consent to such conflicting representation.
Through discussions and in correspondence, Brazos has attempted to find a means whereby the other counsel representing-the Joint Owners could represent both TUEC's interests and its own.
For example, Brazos's counsel has stated to counsel representing all owners:
If your law firms viewed themselves as counsel to the project, with. attorney-client obligations to all 4
Applicants, this might resolve representation questions, apart from those raised by Worsham, Forsythe, Sampels &
Wooldridge's acting as counsel adverse to Brazos and the other minority' owners in the Texas District Court
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litigation while seeking to represent them before the NRC.
Under such circumstances, at least where issues are raised such as whether Comanche Peak construction and operation meets NRC licensing standards, representation of all Comanche Peak owners could be i
accommodated.
Attorneys for the Applicants could i
discuss candidly with each owner problems associated with Comanche Peak and give legal advice relevant to the status of.and issues connected with licensing.
In areas where the co-owners' interests conflict, full disclosure would be required so that arrangements could be made to protect each party's interests.
We believe that this j
type of relationship was contemplated by TUGCO's direction of the Project on behalf of all Applicants.
Letter from Robert A.
Jablon, Esq., to Thomas G.
Dignan, Jr.,
Esq., Roy P.
Lessy, Jr., Esq., Nicholas Reynolds, Esq.,. and Robert A. Wooldridge, Esq., dated September 30, 1986.
This is consistent with Brazos's position in other correspondence, e.g.,
l letter of Robert A.
Jablon, Esq., to William Eggeling, Esq.,
i dated August 13, 1986.
However, Brazos's suggestions that j
counsel for the' Joint Owners recognize their fiduciary obligation
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to each owner have been rejected.
Indeed, Ropes & Gray has
-instructed that communications on this subject must go through
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Worsham, Forsythe, Sampels & Wooldridge, the counsel through which TUEC is suing Brazos.
Our understanding of TUEC's position is that because it is Brazos's " agent".under the Joint Ownership Agreement among the owners, Brazos would be in breach of that agreement if it were to employ separate licensing ~ counsel or to take any substantive position before the Nuclear Regulatory Commission in the licensing proceeding.
Although Brazos does not concur on this point, even if this were the case, Brazos believes, and is advised by counsel, that there are at least minimum obligations
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o 6 of representation wh~ich cannot be performed by' counsel acting
. adverse to its interests where no steps are taken to protect the interests of all clients.
See Texas Code.of Professional Responsibility, Canon 5, especially Disciplinary Rule 5-105; District of Columbia Code of Professional Responsiblity, Canon 5, especially Disciplinary. Rule 5-105.
Under the circumstances, Brazos informs the Board that.
statements made by counsel on behalf of " Applicants" do not necessarily represent.Brazos's interests.
Brazos is studying appropriate resolutions of this problem.
s h
CERTIFICATE OF SERVICE I, Ben Finkelstein, hereby certify tha't on November 4,
- 1986, I made service of the foregoing letter and attachments, by mailing copies thereof, postage prepaid, to:
Peter B.
Bloch, Esq.
Ellen Ginsberg, Esq.
Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission
. Commission Washington, D.C.
20555 Washington,. D.C.
20555 Stuart A. Treby, Esq.
Dr. Walter H. Jordan Office of the Executive Legal Administrative Judge Director i
881 W. Outer Drive U.S. Nuclear Regulatory Oak Ridge, TN 37830 Commission Washington, D.C.
20555 Dr. Kenneth A. McCollom Administrative Judge
-Geary S. Mizuno, Esq.
1107 West Knapp Office of the Executive Stillwater, Oklahoma 74075 Legal Director U.S. Nuclear Regulatory Elizabeth B. Johnson Commission-Administrative Judge Washington, D.C.
20555 Oak Ridge National Laboratory P.O.
Box X, Building.3500 Mr. Robert D. Martin Washington, D.C.
20009 Regional Administrator, Region IV-Chairman U.S. Nuclear Regulatory Comm'n Atomic Safety and Licensing 611 Ryan Plaza Dr., Suite 1000 Board Panel Arlington TX 76011 r
U.S. Nuclear Regulatory l
Commission Mr. James E. Cummins Washington, D.C.
20555 Resident Inspector l
Comanche Peak S.E.S.
l Chairman c/o U.S. NRC l
Atomic Safety and Licensing P.O.
Box 38 Appeal Board Panel Glen Rose, Texas 76043 U.S. Nuclear Regulatory Commission Mr. William L. Clements l
Washington, D.C.
20555 Docketing & Service Branch U.S. Nuclear Regulatory Commission Washington, D.C.
20555 I
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9.
Nicholas S. Reynolds, Esq.
Ms. Billie Pirner Garde William A. Horin, Esq.
Citizens Clinic Director Bishop,:Liberman, Cook, Government Accountability.
Purcell & Reynolds Project 1200 17th Street, N.W.
1901 Que Street, N.W.
Washington, D.C.
20036 Washington, D.C.
20009 Robert A. Wooldridge, Esq.
Renea Hicks, Esq.
Worsham, Forsythe, sampels Assistant Attorney General
& Wooldridge Environmental Protecti'on Div, 2001 Bryan Tower P.O. Box 12548 Suite 2500 Capitol Station Drilas, TX 75201
_. Austin, TX 78711 Thomas G. Dignan, Esq.
Nancy Williams William E.
Eggeling, Esq.
Cygna Energy Services, Inc.
Ropes & Gray 101 California Street 225 Franklin Street Suite 10000 Boston, MA 02110 San Francisco, CA 94111 9
Roy P.
Lessy, Jr., Esq.
Joseph Gallo, Esq..,
Wright & Talisman, P.C.
Isham, Lincoln &qBeale.
Suite 600 1120 Connecticut' Ave., N.W.
1050 17th Street, N.W.
Suite 840 Washington, D.C.
20036-5566 Washington; D.C.
20036 Mrs. Juanita Ellis Mr. Lanny A. Sinkin President, CASE Christic Institute 1426 S.
Polk Street 1324 North Capitol Street Dallas, Texas 75224 Washirigton, D.C.
20002' Anthony Z.
Roisman, Esq.
Executive Director Trial Lawyers for Public Justice 2000 P Street', N.W. Suite 611
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Washington, D.C.
20036
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Ben Finkelstein l
Law Offices Of:
Spiegel & McDiarmid Suite 1100 s
1350 New York Avenue, N.W.
Washington, D.C.
20005-4798 (202) 879-4000 l
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