ML20235B336
| ML20235B336 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 09/14/1987 |
| From: | Mizuno G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| CON-#387-4429 CPA, OL, NUDOCS 8709240069 | |
| Download: ML20235B336 (25) | |
Text
{{#Wiki_filter:- - _ - _ _ _ _ _ _ _ _ _ _ _ _ - _ _ - _ _ _ _ . _- _ _. eM .-{* m .. September 14, 1987
'87 SEP 21 A10 :31 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3:
BEFORE THE 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-O L
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(Comanche Peak Steam Electric ) 50-445-CPA j Station, Units 1 and 2) ) NRC STAFF RESPONSE TO BRAZOS ELECTRIC POWER COOPERATIVE'S MOTION FOR DECLARATORY ORDER I. INTRODUCTION On August 14, 1987, Brazos Electric Power Cooperative, Inc. ("Brazos") filed a " Motion for Declaratory Order" (" Motion") . II The Motion asks that the Atomic Safety and Licensing Board (" Licensing Board") enter an order declaring that the law firm of Ropes and Gray "shall continue to represent Brazos in these proceedings with full recog- i nition, acceptance and discharge of its fiduciary obligations to Brazos." Motion at 1. Alternatively, Brazos asks that the Licensing Board issue an order permitting Brazos to obtain independent counsel to represent it in these proceedings without becoming subject to suit by Texas Utilities Electric Company ("TU Electric") under the Joint Ownership Agreement ("JO A") . While the Staff opposes Brazos' Motion per se, it supports an
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1/ By letter dated August 28, 1987, Brazos filed a request to supple-ment its Motion with material it believes further illustrates and sup-ports the arguments presented in its Motion.
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inquiry by the Board for the purpose of determining the precise nature of the legal representation by the law firms of Ropes and Grey and Worsham, Forsythe, Sampels and Wooldridge ("Worsham, Forsythe") vis-a-vis TU Electric, and each of the minority Applicants. 2_/ i
- 11. BACKGROUND ,
This Motion is not the first time that the issue of representation of minority Applicants' interests (including Brazos' interests) by the desig-nated lead counsel for the Applicants has been raised. On March 9, 1987, CASE and Meddie Gregory, after many months of correspondence with and among the co-Applicants in this proceeding, filed a " Motion for Appointment of Legal Counsel for the Minority Applicants and for Clarifi-cation of Discovery and Other Responses Received from Applicants" in both the operating license - and construction permit proceedings for CPSES. Responses to CASE's and Mcddle Gregory's Motion were filed by TU Electric on behalf of all the Applicants, 3_/ as well as by Brazos EI and the Staff. 5_/ TU Electric's Response opposed the appointment of 2/ The minority owners and co-applicants with TU Electric for the Comanche Peak Steam Electric Station (CPSES) are Brazos, Texas Municipal Power Agency ("TMPA"), and Tex-La Electric Cooperative (" Tex-La"). Hereinafter, they will be collectively referred to as
" minority Applicants."
-3/ " Response to CASE and Meddie Gregory Motion for Appointment of Legal Counsel for Minority Applicants and for Clarification of Discov-l ery Responses" ( April 16, 1987).
I 3/ Letter from Bonnie Blair to Licensing Board (April 28, 1987). I
-5/ "NRC Staff Response to CASE and Meddie Gregory Motion for Ap- l pointment of Legal Counsel and for Clarification of Discovery Re- ,
sponses" (March 31,1987). I \
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counsel for minority Applicants primarily on the basis that the issues of who should represent the Applicants and how that representation should be effected, were not ripe for Licensing Board consideration since none of the co-applicants asked that these issues be resolved by the Licensing Board. TU Electric Response at 2, 12-22, 25-26. Implicit in this argu-ment, however, is that TU Electric would oppose any request by the mi- . nority Applicants for leave to enter general appearances in the CPSES proceedings. See, e.g., TU Electric Response at 15-20, and n.19. Brazos' response took issue with TU Electric's discussion of the responsibilities and obligations owed to it and the other minority Appli-cants by TU Electric and the legal counsel retained to represent the Ap-p!! cants. See Brazos' April 28, 1987 Letter at 2-3, and n.1. For its pa rt , the Staff opposed the CASE and Meddle Gregory Motiori, poh' ting out the minority App!! cants' option of retalning separate lejal counsel to enter limited appearances in the CPSES proceedings, in or der to prott et their individual interests. Staff Response at 7-8. While the Licensing Board denied CASE's and Mcddle Gregory's Motion with regard to appoint-ment of counsel for the minority Applicants, the Licensing Board indicated that TU Electric "must not interfere with the minority owners that may wish to fulfill their obligations to assure the completeness of our factual record and the adequacy of factual responses to discovery." Memorandum and Order (Appointment of Legal Counsel: Clarification of Discovery) (May 4,1987) ("May 4,1987 Order"). l
. Apart from the adjudicatory process, Brazos filed a " Request for !
Modification of Licenses" (March 11, 1987) ("Brazos 2.206 Request") 6_/ asking that the Director of the NRC's Office of Nuclear Reactor Regula-tion order TU Electric to purchase Brazos' ownership interest in CPSES. The basis for such action were alleged " material false statements" made by TU Electric to the Licensing Board regarding the nature of the represen- . tation by Worsham Forsythe. On June 25, 1987, the Brazos 2.206 Re-quest was denied. Texas Utilities Electric Co. et al. (Comanche Peak Steam Electric Station, Units 1 and 2), DD-87-10, 25 NRC (" Director's Decision") . The Director of the Office of Special Projects U based his decision to deny Brazos' Petition on several grounds. First, the Director found that Brazos had not shown that the alleged false statements con-tained material deficiencies, nor had Brazos shown that the allegations bear on the character and management of TU Electric itself - as opposed to the legal counsel retained by TU Electric. Director's Decision, slip op. at 3. Second, the Director found that Brazos should raise its con-cerns before the Licensing Board, since these issues essentially challenge the sufficiency of the legal representation before the Licensing Board, which has the authority and responsibility, pursuant to 10 C.F.R. Sec-tions 2.713, 2.718(e), (m), to address those kinds of issues. Since there was an alternative forum in which the issues raised by Brazos should 6_/ Attached to Brazos' Motion as Exhibit A. I i -7/ The Commission has delegated to the Office of Special Projects ("OSP") the responsibility for, inter alla, coordination of all Staff activities related to the licensing of CPTES. The Director of OSP has been aelegated the authority to act on requests for Staff action pursuant to 10 C.F.R. Section 2.206, o_
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. more logically be presented, the Director declined to act on Brazos' Peti- l l
tion. Director's Decision, slip op. at 4-5. Finally, the Director found l that he did not have authority to grant the relief requested by Brazos, l 1.e., a buy-out of Brazos' ownership interest in CPSES. Id. at 5 and { n.7. 1 ill. DISCUSSION ] The crux of Brazos' Motion is that unless it has an attorney-cilent and/or a fiduciary relationship with Ropes and Gray, it cannot fulfill its j obligations as a co-applicant to the Licensing Board. These obligations, 1 as implicated by Brazos in its Motion, are to: (1) Inform the Licensing { l Board of new and significant information that may affect the adjudication of the matters in controversy, and (2) ens 0re the completeness and accu- j l racy of the its discovery responses, as iterated by the Licensing Board ) i in its May 4, 1987 Order. By way of example, Brazos argues that, with respect to two sets of documents, it is unable to comply with its obliga- ! tions to the Licensing Board because of the actions of TU Electric and Ropes and Gray. Brazos' Motion at 21-23. Brazos' misunderstanding of its obilgations to the Licensing Board has led Brazos to erroneously con-l clude that it is unable to fulfill its Licensing Board obligations because of j the TU Electric / Ropes and Gray position that no attorney-client or agency relationship exists between Brazos and Ropes and Gray. Brazos also ar-1 gues, in an oblique fashion , that its right to representation by legal I counsel as reflected in the Commission's regulations, is being interfered l l with by TU Electric. Each of these arguments will be addressed separately. I L____ __ __ _
l I A. Disclosure Obligations As the Staff has discussed in several other pleadings, 8_/ all of the l co-Applicants have the obligation to provide accurate and complete infor-mation to the Licensing Board, and to notify it of any significant new factual information material to the adjudication which comes to its atten-tion. Duke Power Co. (Wililam B. McGuire Nuclear Station, Units 1 and . 2), ALAB-143, 6 AEC 623 (1973); ,c.f. Virginia Electric Power Co. (North Anna Power Station, Units 1 and 2), C LI-76-22 , 4 NRC 480, 489-91 (1976). This obilgation is separate from, although in some cases is co-Incident with, Brazos' obligations under discovery. S/ Brazos claims that it requires the advise of Ropes and Gray in order to determine "how to proceed in ... matters where disclosure to the 4 Board or correction of the record appears appropriate." Brazos' Motion at 26. For example, it points to "a group of documents" produced in discovery to the minority owners in the Texas State court proceeding, which Brazos contends show that TU Electric had specific knowledge prior to 1985 of audits prepared in 1976,1977 and 1978 by Management Analysis 8_/ See, e.g. , NRC Staff Response to CASE and Meddle Gregory Motion for Appointment of Legal Counsel .. . (March 31, 1987) at 4-5; NRC Staff Views on Discovery dispute involving intervenore Meddle Gregory's Discovery Request for the Cresap Audit (May 18,1987) at 4-6 and n.6..; NRC Staff Response to Texas Utilities Electric Compa-ny's Petition for Directed Certification of Licensing Board's Order of March 12,1987 (July 27,1987) at 8. 9/ The distinction between the disclosure obligation under the McGuire j and North Anna line of cases, versus disclosure obligations under
. discovery, has been discussed by the Staff in a prior filing. See NRC Staff Views on Discovery Dispute involving intervenor Med'dTe Gregory's Discovery Request for the Cresap Audit at 12. The Staff's discussion of Brazos' disclosure obligation under discovery is set forth in Section lil.B below, i
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l. p: .- ; l Company ("MAC") for Brown and Root concerning-the Brown and Root QA program, contrary - to representations by TU Electric to the Licensing
- Board. D Id. at 23. The Staff disagrees that the circumstances surrounding these documents shows a unique need by Brazos for the legal advice and counsel of Ropes and Gray, as opposed to that which could be obtained from 'other attorneys which may be retained by Brazos as legal ,
counsel. Brazos has not presented any basis for concluding that Ropes and Gray is the only law firm that can provide Brazos with appropriate lega! . 1 advice on whether the documents should be disclosed, and how the Li-censing Board should be apprised of the documents. Brazos' disclosure abilgations under NRC law and the Licensing Board's Order are matters which may be explicated by any competent attorney famlilar with NRC law and practice. In consultation with such attorneys, Brazos should review I any information known to it to determine if it must be disclosed to the Licensing Board. If there are any matters which are disclosable, Brazos should notify TU Electric of its assessment, if TU Electric informs Brazos that, in its judgement, the information in the documents need not be disclosed to the Licensing Board under McGuire and North Anna k,
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10/ See September 16, 1985 letter from Robert Wooldridge to Licensing Hoard: "From our review, it appears that Applicants had no prior knowledge of the [MAC] reports and did not have copies of the re-ports within their possession, custody or control." 11/ The Staff points out that due to the lack of clarity in Brazos' filing, I it is unclear whether TU Electric has been made aware of Brazos' l belief that the the group of documents contain information which is i inconsistent with TU Electric's September 16, 1985 representations to l (FOOTNOTE CONTINUED ON NEXT PAGE)
. then Brazos could independently act to inform the Licensing ~ Board of these documents by identifying' them and summarizing their contents. In the alternative Brazos could offer to disclose the documents to the Board ex parte, in camera, in a procedure analogous to that contemplated by 10 C.F.R. 2.744(c). A legal assessment of the need for disclosure, or the procedure to be followed in notifying the Licensing Board, are mat- ,
ters on which a number of attorneys could provide competent advice to B ra zos. Indeed, the fact that Brazos' own legal counsel has filed this - pleading raising the possible need for disclosure 'of the information con-tained in the documents in question, is an indication that the advice of Ropes and Gray is not necessary for Brazos to fulfill its McGuire and North Anna obligations. E,razos has ' not shown that consultation with Ropes and Gray is' a necessary prerequisite to its fulfilling of its disclo-sure obligations to the Licensing Board. Brazos' Motion also relles on a disagreement between it and TU Elec-tric regarding a document for which TU claims an attorney-client privi-lege, as evidence that it is unable to comply with its McGuire/ North Anna obligations unless it receives the advice and assistance of (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) the Licensing Board. While Brazos' Motion refers to a " group of documents", the July 7,1987 letter from TU Electric to counsel for Brazos only mentions two documents-of which orie is characterized in Brazos' Motion as being in a different catagory. Accordingly, it is unclear whether the July 7, 1987 letter's characterization of this document as containing "nothing factual . . . which is substantively inconsistent" with past statements by TU Electric, in fact represents TU Electric's position on the need for disclosing the " group of docu-ments" referred to by Brazos in its Motion. l l \ __ =_-----__-_____
. Ropes and Gray. El Brazos does not identify this document, it does not summarize the substantive content of this document, nor does it explain the reason for its belief that the document should be disclosed. There- I fore the Licensing Board is unable to determine the validity of Brazos' assertions. More importantly, Brazos falls to show how direct communi-cation with Ropes and Gray would enable it to better fulfill its , McGuire/ North Anna obligations. Presumably, the July 7, 1987 letter from TU Electric to Brazos reflects the counsel of Ropes and Gray. Thus, Brazos is at least indirectly aware of Ropes and Gray's legal as- f sessment regarding the need to disclose the document. That Brazos has filed this pleading, constituting a de facto (if inadequate) notification of potentially significant information , demonstrates that Brazos' own legal counsel is cognizant of the issues. This further belies Brazos' claim that it requires the advice of Ropes and Gray. In sum, Brazos has not shown that Ropes and Gray is the only legal counsel who can adequately advise and assist it in complying with its " full disclosure" obligations to the Li-censing Board. B. Discovery Obligations Brazos' contention that TU Electric and Ropes and Gray are interfer-Ing with its discovery responsibilities must also be rejected. Brazos ar-gues that it must have the " advice and assistance" of Ropes and Gray in order to " attest that Comanche Peak meets NRC standards, apart from j 1 l 12/ The Staff notes that Brazos does not clearly indicate whether this I l
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document should be disclosed under its obilgations to the Licensing Board under McGuire, or whether the document needs to be dis-closed under its discovery obilgations. i i I
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l l 1 l 1 any obligations that the Joint Operating Agreement may impose . . . ," and to inform it of "the status of the plant, plant construction and li-censing matters which it now cannot discuss with licensing counsel. " . i Brazos' Motion at 28, 30. The problem with Brazos argument is that these " obligations" are entirely unrelated to any discovery resphnsiblities I which it may have under Commission law and practice. Whether CPSES . i meets NRC requirements and FSAR commitments is a substantive matter, l and is irrelevant to discovery. Brazos does not have to " attest" that j CPSES meets NRC requirements in discovery. Nor is it required EI to know about plant status, plant construction and licensing, for purposes ; of discovery. It is the Staff's understanding of the JOA El that TU Electric is the sole Applicant responsible for acting to obtain the CPSES ! operating license. EI Accordingly, the Staff looks to TU Electric, not l Brazos, to design, construct and test the CPSES plant, to comply with Commission requirements, and to present the information necessary to I l support a Staff finding on the adequacy of the design and construction of l l CPSES. Since Brazos is not responsible for actually directing the design, I l 1 1 1 I g/ See note 16 below. , j 4
-14/ The Staff does not intend to speak as to the validity or precise l meaning of the JOA, insofar is it may ultimateiy govern the rights f and responsibiltles of the co-Applicants among themselves. However, j since the JOA was submitted as part of the FSTR, and represents j the Applicants' representations to the Staff and the Licensing Board j with regard to how they intend to conduct their activities in the ;
licensing of CPSES, the Staff will use the plain meaning of the terms ! of the JOA in order to present the Staff's understanding of the re- L sponsibilities of each of the co-Applicants with regard to the conduct l I of litigation in the proceedings. l l H/ See Section 3.01 of the JOA. ) l I
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construction, and testing of CPSES or the submission of information to the Staff on licensing matters, it has no responsibility, as far as discov-s ery in the NRC proceedings is concerned, to actively develop and/or seek out information on CPSES design, construction and testing, in order to "be p'repared" for discovery. 5 in sum, none of the alleged "obilgations" cited by Brazos are, in reality, valid discovery , responsibilities. In , fact, Brazos' only discovery obligations are to assure that the discovery responses for which it is responsible are accurate and filed in a timely fashion, and to supplement and amend an earlier response if neces-sary under 10 C.F.R. Section 2.740(e)(2). Under Commission practice, as well as the terms of the JOA, El TU Electric, rather than Brazos is responsible for the initial accuracy or timeliness of TU Electric's discov-ery responses. Brazos fulfills its discovery obligations when it timely
-~16/
Of course, Brazos (as well as any of the other minority Applicants) may independently complie information on the status and adequacy of CPSES design, construction, testing, operation, or the adequacy of litigation, for purposes independent of, and unrelated to the NRC licensing process. For example, BraTos may~ have declBed that it needed to monlior TU Electric's efforts for purposes of showing Brezos' prudency in anticipation of rate hearings, or to assure that TU Electric is complying with its contractual responsibilities under the JOA. While these purposes may well be permitted under the JOA (a question which need not be addressed here), Brazos' decision to gather information and/or conduct independent analyses is not at- j tributable to any NRC requirements. However, the independent na- ; ture of these informat!on-gathering and/or analytical activities does ! NOT shield these documents from disclosure pursuant to a valid dis-covery request filed in the NRC rpoceedings, if Brazos obtains information from these independent activities which is responsive to ] discovery, it must either disclose the informatic,n or interpose a valid objection .to disclosure, i
\ + 1 17/ See note 14 above.
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. 1 provides its individual EI responses and objections to TU Electric, and assures .itself that : they are accurately and completely transmitted to the requesting party' by TU Electric. If TU Electric, for whatever reason, !
transmits Brazos' response incorrectly, then Brazos should notify TU Electric and assure that a corrected response is filed. If TU Electric declines to . transmit Brazos' response, then Brazos' counsel may make a . I special appearance to provide its individual response to the requesting i party. El if Brazos subsequently discovers additional information which 18/ As stated by Applicants in their February 19, 1987 letter from Rob-ert Wooldridge to the Licensing Board, the Board and parties would
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normally expect Brazos to make a special appearance only if it was necessary to protect "a purely individual interest such as the asser-tion of a privilege rurining only to one of them individually." By contrast, the Board and parties would not expect Brazos to make a special appearance to present its differing views on issues relating to the general litigation of Contention 5, ea, the relevance of a CPSES Project documents such as NCRs, procedures, or audits con-ducted for the Applicants by outside contractors. This is because the -TU Electric has held itself out to the Licensing Board and the parties as the lead Appilcant and the entity responsible for coordi-nating the actions of all co-Applicants, and representing the collec-tive response of the co-Applicants in litigation , unless stated otherwise. Without addressing whether the JOA is a binding con-tract among the co-Applicants, it is nonetheless true that the Li-censing Board's and parties' expectations were based upon the terms of the JOA as represented to them by TU Electric, and that TU Electric was to be the sole entity responsible for obtaining the oper-ating license for CPSES.. While it is conceivable that each of the co-Applicants could be given leave to enter general appearances, such a situation would raise numerous problems with regard to coor-dination among the Applicants and between them and the Board and other parties, and would require careful administration and control by the Licensing Board.
'l 19/ TU Electric has stated that it recognizes that minority Applicants'
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may have specific interests and objections to production not shared by TU Electric, and that it would "do nothing to prevent them from bringing any matter to this Board's attention which they would be required to do by law or to prevent them from appearing specially at (FOOTNOTE CONTINUED ON NEXT PAGE) l L W- ___ -_--
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s would require that its individual response be amended pursuant to Section 2.740(e)(2). I't should transmit the amended response to TU Electric, and if they are not transmitted, then to advise the the requesting party'of the need for supplementation. The situation is essentially the same if Brazos discovers that the response of a co-Applicant needs to be amended under Section 2.740(e)(2); it should notify the co-Applicant of the prob- . Iem . Only- if the co-Applicant refuses to transmit the information would Brazos obliged to enter a special appearance, in order to notify the re-questing party of the problem. b Fulfilling these responsibilities is a straightforward task for Brazos; any attorney familiar with NRC hearing practice should be able to assist ' Brazos and provide any necessary advice in carrying out these discovery obligations. Nothing in these obligations is so unique to TU Electric's general conduct of the licensing process that Brazos must be advised by < Ropes and Gray. Brazos simply has not shown that its aoliity to fully comply with its individual discovery responsibilities is contingent upon an (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) any time required to protect a purely individual interest . . ." See, 1987 letter from Robert Wooldridge to the LTcens_e.g_. , February ing Board at 3;19, Responses to Consolidated Interveners' (6/19/87) Interrogatories and Request for Production of Documents (August 14, 1987) at n.2, pp.1-2; c.f. August 12, 1987 letter from i William Eggeling, Ropes and G ray , to Foster De Reitzes , Heron, Burchette, Ruckert and Rothwell, counsel to Tex-La. We assume that TU Electric continues to adhere to this position.
-20/ Again, as discussed in the previous note, TU Electric has stated that it would not oppose special appearances by minority Applicants, either to advance interests peculiar to them, or to present minority Applicants' discovery responses where TU Electric differs as to their propr!ety.
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attorney-client or fiduciary relationship between it and Ropes and Gray21/, j Brazos' apparent suggestion E that the circumstances surrounding I a document (for which TU Electric claims an attorney-client privilege) is illustrative of TU Electric's interference with Brazos' individual discovery i obligations (Motion at 22), is without merit. Brazos' argument respecting . 4 this document constitutes an Internal disagreement with TU Electric over the need for disclosure of a TU Electric document. As this document is a TU Electric document, the initial decision on the need to identify and i disclose the document rests on TU Electric, a decision reflected in the July 7,1987 letter from John Beck of TU Electric to Robert Jablon, coun- ) sei for Brazos (Exhibit F to Brazos' Motion). If Brazos disagrees with TU Electric's determination and wishes to have the Licensing Board refer-l ee the dispute, it is incumbent upon Brazos to describe this document in sufficient detall so that the Licensing Board may make a reasoned assess-ment of its materiality. Yet as explained above in Section Ill. A., Brazos' Motion does not summarize the substantive content of this document. Nor does the Motion explain what prior discovery request the document is alleged to be responsive to, and why the document should now be dis-21/ lt is, therefore, unnecessary to address the Brazos' argument at pp.
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10-11 of their Motion that an attorney-client relationship exists be-tween Brazos and Ropes and Gray. j 22/ Again, the Staff notes that Brazos' cryptic discussion of this docu- l ment (Brazos' Motion at 22-27) makes it unclear whether it believes I that TU Electric had a duty to disclose this document under the McGuire and North Anna line of cases, or whether the obligation j stemmed in part or in the alternative from Commission law and prac- j tice on discovery, i l l___________ '
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- closed under the requirements of 2.740(e)(3). Without such information, the Licensing Board, as well as the other parties, are unable to determine whether there is any obligation to provide the document. In the absence of such information, Brazos' difference of opinion with TU Electric over an unidentified and undescribed TU Electric document alleged to be re-sponsive to as-yet-unidentified discovery, cannot be considered to be ,
litustrative of an impediment to Brazos' compliance with its independent discovery obligations. To conclude, unless Brazos shows that TU Electric is falling to carry out its implicit responsibility to inform Brazos of relevant discovery re-quests in a timely fashion, 23/ is falling to completely and accurately transmit Brazos' response to discovery, yet is preventing Brazos from i specially appearing before the Licensing Board to raise objections or i views which are peculiar to Brazos' interests, b Brazos has no basis for
~~~23/ Brazos' assertion that "neither Brazos nor its counsel were contacted about . . . Interrogatories [against Brazos] until the day before the answers were originally due, when Brazos' counsel called licensing counsci about the matter," (Brazos' Motion at 28) is NOT litustrative of any lapse in TU Electric's responsibilities under the JOA, as the Staff understands the terms of that contract. TU Electric apparent-I ly transmitted the interrogatories to Brazos in a timely fashion, since Brazos does not complain about untimely service. It was then Brazes' responsibility to review the interrogatories for applicability to Brazos, prepare proposed responses, and transmit them to TU {
Electric in a timely fashion, or notify TU Electric that an extension ! of time would be necessary. TU Electric appeared to have also fulfilled its responsibilities when it timely sought the extension of i time to respond, apparently based in part upon Brazos' indication j that it would be unable to complete its responses within the pre-l scribed time period.
~~-24/ Tex-La's argument that TU Electric and Ropes and Gray are improp-erly falling to file Tex-La's discovery responses (see Response of l (FOOTNOTE CONTINUED ON NEXT PAGE) 1 l
claiming that TU Electric is interfering with Brazos' obligations to the Licensing Board. And unless Brazos is able to show that, but for the advise and assistance of Ropes and Gray, it is unable to comply with its discovery obligations, therc is no need to address either whether it has an attorney-client or other " fiduciary" relationship with Ropes and Gray, or whether Brazos is entitled to relief. - C. Right to Representation Grazos argues that it and the other minority Appilcants have "the right to have licensing counsel (Ropes and Gray) act on its behalf in 3 fiduciary capacity or obtain independent counsel to represent its interests before the Board." Brazos Motion at 18, see also 12-16. Tex-La makes the same argument in support of Brazos' Motion, when it asserts that minority Applicants "have the right to be represented by counsel - be it Ropes and Gray ... or independent counsel of their choice .... See Response of Tex-La Electric Cooperative of Texas Inc. to the Motion (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) Tex-La Electric cooperative of Texas, Inc. to the Motion of Brazos Electric Power Cooperative, Inc. for Declaratory Order, dated Au-gust 31,1987, at 5) is meritiess. The TU Electric response to the intervenor's interrogatories (Responses to Consolidated Interver. ors' (6/19/87) Interrogatories and Request for Production of Documents I (August 14, 1987) specifically discussed the fact that TU Electric l had received draft responses from the minority oweners, that TU l Electric could not agree to sponsor those responses, and that TU l Electric advised the minority Applicants that "If they have a legiti-mate basis for submitting information...in response to interveners' interrogatories, they are obliged to do so themselves - through their ) own counsel and in papers signed by their own representatives in j ! accordance with the Rules of Practice." Id. at n.2. That TU Elec- ! l tric so advised minority Applicants is con ~Tirmed in part by the Au- ' i gust 12, 1987 Letter from William Eggeling , Ropes and Gray to Foster De Reitzes, Heron, Burchette, Ruckert and Rothwell, counsel
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to Tex-La (Exhibit D to Tex-La's August 31, 1987 Response). ' I l l l
.- of Brazos Electric Power Cooperative, Inc. for Declaratory Order (August 31, 1987) (" Tex-La Response") at 4. Both Brazos and Tex-La cite 10 C.F.R. Section 2.713(b) as the legal basis for their argument. Brazos Motion at 18; Tex-La Response at 4. Their reliance on Section 2.713(b) is misplaced.
Section 2.713(b), entitled " Representation ," provides as follows: , A person may appear in an adjudication on his or her own behalf or by an attorney-at-law. A partnership, corporation or unincorporated association may be represented by a duly authorized member or officer, or by an attorney-at-law. . . . Any person appearing in a representative capacity shall file a written notice of appearance which shall state . . . the name and address of the person on whose behalf he or she ap-pears; and in the case of an attorney-at-law, the basis of his or her eligibility as a representative or, in the case of anoth-er representative, the basis of his or her authority to act on behalf of the party. 10 C.F.R. Section 2.713(b) (emphasis added). It is apparent from the title of Section 2.713(b) and the text that the Commission's purpose in promulgating this rule was, in part, to assure that all parties speak with one voice, so that NRC would be able to rely upon the statements arid commitments made by a party through its representative. This is sup-ported by the Commission's Statement of Consideration accompanying the pubilcation of this rule in final form, EI which states that the rule was promulgated to " clarify who may appear before NRC in a representative capacity. " 45 Fed Reg. 69877. Section 2.713(b) does not address the enforceability of private contractual arrangements governing the appear-ance and representation of co-parties in an NRC proceeding. 25_/ 45 Fed. Reg. 69877 (Oct. 22,1980).
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i; .- 18'- I What Section 2.713(b) does " require is that all parties (and co-parties) be represented by .a duly-authorized representative- with au-thority to act on behalf of the party being represented. . As discussed in Section 111. E below, Brazos' Motion' raises questions regarding the repre-sentation of the co-Applicants in the CPSES proceedings. However, nel ' ther Brazos nor Tex-La have shown ' the basis or need for Licensing , Board action directing TU Electric to rearrange the current representation arrangements in the licensing proceedings. D. Availability of Requested Relief Even if one were to assume that Brazos had made a sufficient show-Ing in its Motion that TU Electric, by virtue of its interpretation of the JOA and its direction to Ropes and Gray, was interfering with Brazos' fulfillment of its obilgations to - the Licensing Board, there nontheless
.would- be no legal basis for directing Ropes and Gray to undertake invol-untary service as Brazos' fiduciary or legal counsel in the licensing pro-
. ceeding. Nothing in the Commission's regulations or the Atomic Energy Act, nor do the principles of administrative law suggest that the Licens-ing Board has tha legal authority to require Ropes and Gray to accept Brazos as a client in an attorney-client relationship, or as a principal in I
an agency relationship. With respect to Brazos' alternate prayer for relief requesting the i Licensing Board to require Ropes and Gray to withdraw from representing the interests of Brazos, and to allow counsel for Brazos to make a general appearance under 10 C.F.R. Section 2.713(a), a decision on such action should await a clear showing that such action is absolutely necessary and no other less-disruptive remedies exist. Brazos' Motion has not presented [ L
I f i
. any instance where Brazos' individual interests have been prejudiced by the actions of TU Electric (or Ropes and Gray), or explained why enter-ing a special appearance in that proceeding would be insufficient to pro-tect Brazos' interests, E. Need for Clarification Regarding Representation of
" Applicants" Before the Licensing Board That Brazos has not shown that the relief it has requested is war-ranted under the circumstances does not mean that the issues underlying Brazos' Motion are of no concern and should be dismissed. On the con-trary, TU Electric's letters to the minority Applicants, El its legal arguments and associated statements addressing the issue of representa-tion of the Applicants before the Licensing Board, E as well as statements made by the counsel for Applicants characterizing their status
_26/ See, ea, July 7, 1987 Letter from John W. Beck to Robert A. Jablon, counsel for Brazos (Exhibit F to Brazos' Motion).
-27/ See , e.g. , Response to CASE and Meddie Gregory Motion for Ap-pointment of Legal counsel for Minority Appilcants and for Clarifica-tion of Discovery Responses ( April 16, 1987); Responses to Consolidated Interveners' (6/19/87) Interrogatories and Request for Production of Documents (August 14, 1987); Brief in Support of Plaintiff's Reply to Defendants' Motion to Disqualify, Texas Utilities Electric Co. v. Tex-La Electric Cooperative of Texas, Texas l 14th Dist. Court, Docket No. 86-6809.
__ _ _ _ _ _ _ _ _ . I
4 in their notices of appearances, -8/ legal pleadings, b letters to the 30/ and letters to the Licensing Board and minority Applicants, parties, b when considered together reasonably draw into question the nature of the legal representation of Applicants through their licensing counsel. The lingering nature of this matter has, to date, needlessly 28/ Compare February 13, 1985 notices of appearence for Messrs. Robert K. Cad III and Thomas G. Dignan, Jr., Ropes and Gray, in
~
which the parties being represented are denoted, " Texas Utilities Generating Co., et al.", with the April 16, 1987 notices of appearence reflied Tiy Messrs. Gad and Dignan as well as notices of appearence filed for the first time by other members of Ropes and Gray, in which the party being represented is identified as " Texas Utilities Electric Company."
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29/ Compare, le.. Applicants' Objection to CASE's Requests for Admis-sions and Motion for Protective Order (March 1, 1985), in which Ropes and Gray (as well as other law firms and attorneys) are des-Ignated " Counsel for Applicants," and Opposition of Texas Utitllties Electric Co. et al. to Request for Stay (February 13, 1986), in which they ate Tdintified as " Counsel for Texas Utilities Electric Company, "et al , with Applicants Opposition to CASE's Motion to Compel (ApTil~ff,1W/), in which counsel do not indicate their sta-tus; Response to Consolidated interveners' Reply RE: Gregory Dis- . covery Sets 5 and 6) (May 18, 1987), in which Ropes and Gray I identify themselves as " Attorneys for Texas Utilities Electric Compa-ny; and Applicants' Response to CASE's Motion for a Protective Or- l der (Interrogatories 1987-9) and Motion to Compel (August 4,1987), ! which states: "Respectively submitted, Texas Utilities Electric comapny, For the Owners for CPSES, By its attorneys, . . . Ropes ! and Gray." 30/ See, e.g. , June 15, 1987 Letter from Thomas G. Dignan, Ropes and CTay, to Robert A. Jablon, counsel for Brazos (attached to Brazos' l l Motion as Exhibit C); August 12, 1987 Letter from William S. l Eggeling, Ropes and Gray, to Mr. Jablon (attached to August 14, 1987 Letter from Mr. Jablon to the Licensing Board); August 12, l 1987 Letter from Mr. Eggeling to Foster De Reitzes, counsel for Tex-La (attached to, inter alla, Response of Tex-La Electric Cooper-ative of Texas, Inc. to Motion of Brazos Electric Power Cooperative, Inc. (August 31,1987) as Exhibit D). 31/ See August 28, 1986 Letter from Robert Wooldridge to the Licensing
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Board , and February 19, 1987 Letter from Mr. Wooldridge to the ; Licensing Beard. j t - -- ___________o
.21 -
drawn out the conduct of discovery. Moreover, there is a substantial likelihood for further disruption in the conduct of the operating license and construction premit proceedings stemming from the parties' uncer-t nty on this matter. Accordingly, TU Electric should be required to i file a statement with the Licensing Board and parties in both the operat- j ing license and construction permit proceedings, discussing the nature of , the representation by TU Electric before the Licensing Board regarding the Applicants' interests, and the nature of the factual and legal repre-sentation for all Applicants before the Board. 3_2/ TU Electric's statement 32/ The Staff suggests that the responses by TU Electri:: following ques-
-~~
tions would be useful in delineating the role of TU Electric and its legal counsel:
- a. As lead applicant in these proceedings, what is TU Elec-tric's position regarding TU Electric's rights and respon-sibilities to minority Applicants under Commission law, the JOA, and appilcable Texas State law, with regard to the licensing and hearings for CPSES?
- b. What is TU Electric's understanding of the rights and responsibilities of the minority Applicants under Commis-slon law, the JOA, and applicable Texas State law, with regard to the conduct of licensing and hearings for CPSES?
- c. Does TU Electric acknowledge any obilgation, either un-der Commission law, the JOA, or controlling Texas State law , to promptly and accurately advise minority Appil-cants of licensing and hearing obligations as they devel-op, in order to permit minority Applicants to comply with their obligations under Commission law, the JOA, or con-trolling Texas State law?
- e. What alternatives does TU Electric believe exist which would permit minority Applicants to fulfill their obliga-tions under Commission law to the Licensing Board and the Staff, without violating the JOA and controlling Tex-(FOOTNOTE CONTINUED ON NEXT PAGE) l
should present the reasons for its position together with legal citations as appropriate. Once - TU Electric files its statement, the Licensing Board should provide an opportunity for minority Applicants to consider TU Electric's position and if necessary, to file a response to TU Electric's ) statement, Indicating where they agree or disagree with TU Electric and , I the reasons for their position, together with legal citations as appropri- ' 1 i ate. The Staff and CASE should have a reasonable opportunity to re-flect upon the positions of all co-Applicants and file any necessary comments on the individual positions of the co-Applicants. After such time, the Licensing Board may issue an order addressing the (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) as State law? In particular, address the following circumstances:
- 1. Lead Applicant differs with minority Applicant regarding the accuracy of factual information previously provided, or to be provided, to the Licensing Board by the minority Applicant as part of discovery directed at the minority Applicant. I l
- 2. Lead Applicant differs with minority Applicant regarding the accuracy of factunt information ]
previously provided, or to be provided, to the Licensing Board by the minority Applicant as part of discovery directed at the lead Applicant.
- 3. Lead Applicant differs with minority Applicant regarding the need to disclose information to the Licensing Board pursuant to McGuire and North Anna line of cases. !
- 4. Lead Applicant differs with minority Applicant regarding interposition of legal objections , ]
presentation of legal arguments, etc. before i the Licensing Board. ! I l l l l
. co-Applicants' legal obligations to the Licensing Board with respect to assuring that the record in the proceedings is complete and accurate, to assure the prompt and expeditious conduct of the litigation. EI IV. CONCLUSION The Licensing Board should deny Brazos' request for a declaratory .
order. However, the Licensing Board should direct TU Electric to file a statement discussing in detail and with particularity the role of TU Elec-tric and its minority Applicants before the Board, and the role of the counsel representing the Applicants in the construction permit and oper-ating license proceedings. Respectful ly sutmit ted, Geary S. Izuno Counsel for WC Staff Dated at Bethesda, Maryland this 14th day of Septmber,1987 i
-33/ This suggestion is consistent with Brazos' suggestion in note 31 of their Motion that the Licensing Board " clarify the Applicants' joint and several disclosure and record supplementation obligations at this time . " Brazos Motion at 24, n.31. In the Staff's view, the proce- J
( ! dure proposed by the Staff in the text above is preferable to ! Brazos' suggestion, since it more tightly focuses the issues and pro- ] vides a logical and fair procedure for obtaining the views of the q parties on the subject. j L____-______.
S f v ,. i n
'sq UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 SEP 21 Ai0 32 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD rr:
COLH , ,, in the Matter of )
)
TEXAS UTILITIES ELECTRIC ) Docket Nos.50-445-OL COMPANY, ET AL. ) 50-446-OL
) .
(Comanche Peak Steam Electric ) 50-445-CPA Station, Units 1 and 2) ) CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO BRAZOS ELECTRIC POWER COOPFPATIVE'S MOTION FOR DECLARATORY ORDER"in the above-captioned proceeding have been served on the fol-lowing by deposit in the United States mall, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 14th day of September,1987: Peter B. 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. Woofdr!dge, Esq. Administrative Judge Worsham, Forsythe, Samples Oak Ridge National Laboratory 6 Wooldridge P.O. Box X, Building 3500 2001 Bryan Tower, Suite 3200 Oak Ridge, TN 37830 Dallas, TX 75201 Dr. Walter H. Jordan Joseph Gallo, Esq. Administrative Judge Isham, Lincoln & Beale 881 W. Outer Drive Suite 1100 Oak Ridge, TN 37830 1150 Connecticut Avenue, N.W. Washington, DC 20036
Billie Pirner Garde Mr. W. G. Counsil GAP - Midwest Office Executive Vice President ! 104 E. Wisconsin Avenue - B Texas Utilities Generating Company 1 Appleton, WI 54911-4897 400 North Olive Str(et, L.B. 81 Dallas, TX 75201 William L. Brown, Esq. Anthony Z. Roisman, Esq. U.S. Nuclear Regulatory Commission Suite 600 611 Ryan Plaza Drive, Suite 1000 1401 New York Avenue, NW ] Arlington, TX 76011 Washington, DC 20005 i
, 1 Asst. Director for Inspec. Programs William H. Burchette, Esq. l Comanche Peak Project Division Mark D. Nozette, Esq. 1 U.S. Nuclear Regulatory Commission Heron, Burchette, Ruckert P. O. Box 1029 6 Rothwell, Suite 700 ,
Granbury, TX 76048 1025 Thomas Jefferson Street, N.W. Washington, DC 20007 I Lanny Alan Sinkin James M. McGaughy l Christic institute GDS Assoc. Inc. 1324 North Capitol Street 1850 Parkway Pl., Suite 720 Washington, DC 20002 Marietta, CA 30067 Robert D. Martin Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 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 t McDiarmid Board Panel
- 1350 Now 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 S Gray Office of the Secretary 225 Franklin Street U.S. Nuclear Regulatory Commission Boston, MA 02110 Washington, DC 20555 Geavy S. Iz no Couhsel for RC Staff I
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