ML20216D371

Director'S Decision Under 10CFR2.206.* Denies Brazos Electric Power Cooperative,Inc 870311 Petition for Mod of CPs CPPR-126 & CPPR-127 Ordering Texas Utilities Electric Co to Assume co-owner Ownership Interest in Facility

ML20216D371
Person / Time
Site:	Comanche Peak
Issue date:	06/25/1987
From:	James Keppler NRC OFFICE OF SPECIAL PROJECTS
To:	BRAZOS ELECTRIC POWER COOPERATIVE, INC.
Shared Package
ML20216D254	List: ML20216D250 ML20216D371 ML20234C583 ML20245B543
References
2.206, DD-87-10, NUDOCS 8706300511
Download: ML20216D371 (6)

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DD-8,57.9 26 P2E4 UNITED ST ATES OF AMERIC A J NUCLEAR REGUL ATORY COMMISSION .M 0FFICE OF SPECIAL PROJECTS James G. Keppler, Director In the Matter of TEX AS UTILITIES ELECTRIC )' Docket Nos.50-445 COMP ANY, ET AL. ) 50-446 (C'omenche Peak Steem Electric (10 ' C . F. R . 5 2.206)

. Station , Units 1 ano 2) )

DIR E C T O R'S D E CISIO N U N D E R 10 ' C .F. R . 6 2.206 INTRODUCTION On March 11, 1987, the Brazos Electric Power Cooperative, Inc.

(Brazos), filed its " Request . for Modification of Licenses" (Petition) before the' Director of the Office of Nuclear Reactor. Regulation. lI Brazos requested the Director, pursuant to 10 C.F.R. 6 2.206, to institute a show cause proceeding pursuant to ;10 C.F.R.; 5 2.202' to ' modify the construction permits and licenses already. issued and .to impose a .

prospective condition on dny permits and licenses subsequently issued or renewed for the Comanche Peak Steam Electric Station, Units'1 and 2 (Comanche Peak Project), or for such-. other. action as may' be proper.

Specifically, Brazos requested that the Nuclear. ' Regulatory Commission

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Following submittal of the Petition, the Office of. Special Projects was.

created with overall N R C Staff. responsibility for the Comanche Peak Project. T he - Petition was subsequently referred to the Office of Special Projects for action.

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8706300511 870625 PDR ADOCK 05000445 G PDR

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(NRC) order ' licensee and license applicant Texas- Utilities Electric Company (TV Electric) to assume co-owner /co-applicant Brazos _' ownership.

Interest in the.' Comanche Peak Project by purchase at Brazos' net book' cost, and for such other relief as may be appropriate. The. basis for the relief requested was the allegation by Brazos that TU Electric has made material false statements to the Atomic Safety and Licensing Boards (Boards) 'presioing over 'the Comanche Peak operating license and construction permit extension proceedings. For the reasons which follow, Brazos' Petition pursuant to 10 C.F.R 6 2.206 is denied.

DISCUSSION l In its Petition, Brazos asserted that law firms hired by' TU Electric

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have specifically anc repeatedly informed the Commission and its Boards that they represented all Comanche Peak co-owners, including Brazos.

Brazos- further asserted that, in separate-state court litigation involving the co-owners of the Comanche Peak Project, TV Electric has argued that attorneys retained to appear before the NRC have in fact never represented Brazos in any traditionally recognizable attorney-client. relationship.

Brazos argued, therefore, that TU Electric's representations to the NRC, ,

through its legal counsel, have been material false statements. Such material false statements, and the situation created with respect to -the  ;

representation issue in the NRC proceedings, Brazos argued, cast doubt on the veracity of all of TU Electric's statements as they pertain to Brazos.

Brazos submited that TU Electric's assertions of -its representation of Brazos as a co-owner /co-applicant, through its licensing counsel in pruceedings before the NRC, constitute intentional - material false

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q 3-J statements under Section 186 of the Atomic- Energy Act and thus are a -]

sufficient ground under 10 C.F.R. 6 2.202 for the Commission to modify the -

construction permit to require that TV Electric assume Brazos' interest"in the Comanche Peak Project. Brazos' further argued that these false representations are clearly information that a reasonable NRC Staff member i should consider in performing the task of evaluating the character and 1

management integrity of an NRC permittee, fuel licensee and operating J

license applicant such as TU Electric.

For'the following reasons, I have cecided to deny Brazos'.Petitiun. l First, no health and safety' issues have been- identified in the Petition which warrant the requested relief. While specific false statements have been alleged, there has been no showing that these alleged false statements warrant any action'. Brazos suggests in its Petition that its 1 allegations bear upon the character and management integrity of TV Electric. However, the Petition presents no particulars in this regard.

The Petition fails to identify any instance where information submitted to the NRC by TV Electric contained a material' deficiency. -The Petitiun also-presents nu information to support an argument that any potential improprieties on the part of counsel for lead applicant TU Electric are linked to TU Electric management itself and thus call into question the character and management integrity of_ TU Electric. .Thus, it is inappropriate at this time to modify either the outstanding construction permits or special nuclear material licenses for the Comanche Peak Project due to health and safety concerns. U 2/ This is particularly so since the facility is'still under construction.

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Secondly, under well-established . Commission principles, relief under ]

10 C.F.R. 9 2.206f is not' available when, as here, there is an existing' forum available to the ' petitioner- in ~ which issues ' raised should more logically be presented.8 Where. a Board is ' presiding. in : a proceeding.

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iwith~ jurisdiction to consider. the matter, a1 party to that proceeding'may-

not choose to avoid that-forum-by use.of 10 C.F.R 6 2.206.' S The issues R

' underlying Brazos Petition' in essence challenge' the : sufficiency' of the .

representation by the applicants in the Comanche Peak proceedings. In particular, Brazos contended that lead applicant's counsel represented to =

the Board that it represented all applicants in the ' proceeding l which - ]i

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Brazos claims was not the case in that it, Brazos, was'not represented by.

counsel for lead applicant.: 'This is - o' matter within .. thel power and responsibility- of the Boards themselves to address -rather than- the Director of an NRC Office. See 10 C.F.R. Si 2.713, 2.718(e) . (m). This is particularly so where the Petitioner, here Brazos,. is a party to the proceedings, currently pending before the; Board in wh.tch the . alleged Brazos should understand that the L N RC Staff views it as' a- party to

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the -Comanche Peak proceedingsJwith theiduty to ' brin g L .relev an.t ;

issues' to? the attention of _ presidingt Boards.<.. To thel extent an

-agreement which : Brazos has ~ entered. into may j purport Lto limit : .its "

duties to the Board, such ~ agreement must yield to/ Brazos' duty.to fully { disclose.

4/ Pacific : Gas' end Eles.tric Company, .(Diablo. Canyon. NuclearH Power

' Plant V nits 1 & 2), ' C L1-81-6,13 N R C J 443, 446 - (1981) .t f

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' 4 false statements E/ were made. To the extent then that Brazos wishes to raise issues regarding the sufficiency. of the . representation by lead;

. applicant TU Electric before presiding Comanche Peak Boards or .the character or management integrity of TU Electric, Brazos should submit a specific request to such Boards. 5/ Since Brazos has not identified any public health and safety issues that warrant action by the staff, deferral to the Boards is appropriate.

Finally, I note that even if all of Brazos' allegations were true, the specific relief requested by Brazos, i.e., a buy-out of Brazos' ownership interest is beyond my authority to direct.1/ For the above reasons, I am denying the Petition. .

5/ The " false statements" identified by Brazos relate solely to the scope

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of representation of the several co-ow ners/co-ap plicants. Since these statements do not involve matters w hich affect the public health and safety, the environment, or the common defense and security, they would not be considered " material false statements" under Section 186 of the Atomic Energy Act.

6/ One Atomic Safety and Licensing Board has considered issues related

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to the B razos' Petition and issued a Memorandum and Order discussing them. Texas Utilities Electric Company, et al .

(Comanche Peak Steam Electric Station, Units.1 and 2), Docket E.

50-445-C P A . Slip opinion, May' 4,1987. To the extent that Brazos is not satisfied with the Board's consideration of issues to date, it may pursue the matter with the Board.

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The NRC's authority does not cover the contractual arrangements-between TUEC and the other owners except insofar 'as they. might affect matters affecting public health,- safety, and the environment, or the common defense and security.- The issue of the adequacy of TUEC's representation of the minority share owners, as presented in Brazos' Petition, has no effect on these matters. Further, even if it 3

were found that T UEC had made material false statements, the . relief sought by Brazos does not appear to be warranted or appropdate.

-Rather, some other remedy would have to be fashioned 'to ensure

.that information provided by all co-applicants or co-licensees would.

be complete and accurate. The relief sought by Brazos would have no such effect.

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CONCLUSION The relief requested in. the Petition is denied. .No specific health and_ safety issues have been identified in the Petition. To the extent that the Petition alleges misrepresenterion on the part of counsel for TV Electric as ledd applicant. before the Boards sitting to resolve issues regarding. the Comanche Peak facility, the issue is more' logically dddressed by the sitting Board. BraZos, as a . party .to the proceedings before the Board, should bring this issue - to the Board's attention'. .

Furthermore. the specific relief requested 'by Brazos is inappropriate.

A copy of this decision will be filed with the Secretary for the '

Commission's review in accordance with 10 C.F.R 6 2.206(c). As provided in 10 C.F.R. 6 2.206(c), this Decision will.become the final action of the-Commission twenty-five -(25) days after issuance unless the l Commission elects to review this Decision on its:own motion within that time.

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,/ James G. Keppler, Director Office of Special Projects Dated at.Bethesda Marylan d this g" day of  %, 1987