ML20235F270
| ML20235F270 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 09/24/1987 |
| From: | Bloch P, Jordan W, Mccollom K Atomic Safety and Licensing Board Panel |
| To: | BRAZOS ELECTRIC POWER COOPERATIVE, INC. |
| References | |
| CON-#387-4455 79-430-06OL, 79-430-6OL, 86-528-02-CPA, 86-528-2-CPA, CPA, OL-2, NUDOCS 8709290016 | |
| Download: ML20235F270 (6) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 17 SEP 25 20:29 Before Administrative Judgec:
hhikk.m[Nj(
d Peter B.
Bloch, Chair Dr Walter H.
Jordan BRANP!
1 Dr Kenneth A.
McCollom ERVED SEP 2 51987 In the Matter of
)
Dochet Nos. 50-445-OL2
)
60-446-OL2 Texas Utilitiec Electric Co..
el ab. ]
)
ASLbP No. 79-430-06uL
]
(Comanche Peak Steam Electric Station,)
September 24, 1987 Units 1 and 2)
)
]
3 In the Matter of
)
Docket No. 50-445-CPA
]
Texas Utilities Electric Co.,
el. a.L
]
] ASLBP No. 66-528-02-UPA (Comanche Peak Steam Electric Station,)
Units 1 and 2)
]
September 24, 1987 3
3 MEMORANDUM AND ORDER MEMORANDUM
( B ra coe.
Motion for a Declaratory Urder)
~
B ra c:os Electric Power Co.,
Inc. (Brazos), a minority owner in the Comanche Peak project, filed a Motion for Declaratory 1
Order on Auguet 14, 1987.
The standing of Brazos to file this 1
We have considered Texas Utilities Electric Company, et 1Us (Applicants') 'besponse to Brazos
' Motion for Declaratory Order'
[ Applicants Hesponce), September 8, 1987; the 'NBC Staff Recponce to Brazos Electric Power Cooperative's Motion for Declaratory Urder, fStaff besponce). September 14, 1907; CASE c Answer to 8/14/87 Motion for Declaratory Order by Bracoc Electric Power Cooperative, Inc.. September 8, 1987: and Motion for Protective Order by Texas Municipal Power Agency, August 14, 1967.
h9290016870924 T
o ADOCK 05000445 hb PDR
YL Declaratory Order:
2
. motion and its standing to file the related notices ?f special appearance for counsel, have not been challenged; and we treat 2
the motion as properly before us.
Brazos' motion has two alternatives.
The first deals with its relationship to Popes & Gray, which is counsel for the Project Manager for the Comanche Peak Steam Electric Station, which is owned by Texas Utilities Electric Co.,
at. a tu, pursuant 3
to a document called "The Joint Ownership Agreement.
Thie part of the motion asks that the Atomic Safety and Licensing Board enter an order declaring that the law firm of Ropes & Gray 'ehall l
continue to represent Brazos in these proceedings with fuli
. recognition, acceptance and discharge of its fiduciary obliga-tions to Bracos.'
Alternatively, Brazos asks that the liceneing 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 Co. (TUEC) under the joint ownership agreement.
We agree with Ropes & Gray that it would be improper for us to order it to become an attorney for a party under
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2 Bracoc has filed a ' Motion for Permission to File Written Response and Request for Oral Argument, September 17, 1967.
However, the Board feels that it is adequately informed on the pending questions and the motion and request are therefore denied.
3 dee Branoe' Motion for Declaratory Order at 17, footnote 24.
Note that the Pro.iect Manager acts 'as agent for the Parties.
However, the interpret,ation of this clause in the unexpected circumstance now existing, where the Parties no longer eee their interests as congruent, may be a very delicate matter about which we choose not to act.
4 iC Declaratory Order:
3 circumstances when it does not wish to become attorney for that party and when other attorneys are already available to the l
party.
The only real issue appears to be whether the Board would 1
interpret the Joint Ownership Agreement by providing Brazos with an order requiring Ropes.4 Gray to become the attorneys for Bra::oe over the objection of Bopes & Gray.
No issue of' safety or of procedural due process is presented.
We agree with TUEC that Brazos' potential liability under its own contractual agreement le not a responsibility of thie Board.
What thie Board is concerned about is that it obtaine full-and accurate information.
It is the c>bligation of TUEC and of the minority owners to see that the Board ~e information is full and accurate.
The Project Manager, who is represented by Ropes &
Gray, has the independent responsibility to present us with a full and accurate record (including providing full and accurate answers tc discovery requests), consisting of documents under its control and of documents of whose existence they are aware.
Thu minority ownere al'so must, to the extent they are able, present us with a full and accurate record.
The circumstances here are unusual because of the lack of cooperation among the members of the ownership group.
Under these circumstances, the Project Manager must assist the Board by keeping minority ownere sufficiently well informed to fulfill their obligation to the Board.
It would reflect adversely on the character of the Project Manager, acting for all the Applicants, if it were not diligent in fulfilling their obligations to the
e O
Declaratory Oraer:
4 Board, including its obligation to keep the minority owners I
informed.
Furthermore, they must not impede minority ownere in the fulfillment of their Coligatione.
We note that in the circumstances of this case, we do not know enough about the documents in the hands of the minority ownero to know whether anyone has been remiss in responding to discovery requeste.
In particular, we do not know whether the documents are relevant to outstanding discovery requests.
We have stated that Brazos has a legal obligation to this Board and to the public, regardless of the financla1 consequenc-4 es.
It is similar to other obligations of Applicants, who may often he required to take costly actions in order to fulfill their legal obligations.
On the other hand, if the information i
is disclosed pursuant to Brasos' obligations to this Board, we would not expect TUEC to file a law suit against them.
We agree with TUEC that tio known impediment prevents Brazos' lawyers from filing appearances on its behalf.
Indeed, they have done so regularly, including six separate app 6arances in connec-tion with the current ' Motion" alone.
6
~
We also continue to adhere to our own language that We recogriice the obligation of minority applicants, apart from any Board order, "to provide accurate, rele-vant, and complete information" to both the Staff of the 4
If TUEC or other applicants claim privilege for a document,
<>ther applicants may await a Board determination before filing the i
document themselvec.
5 Applicants Fesponse at 8-9.
6 i
Memorandum and Order, Appointment of Legal Counsel; Clarification of Diccovery, unpublished, May 4, 1987 at 4-6.
i Declaratory Order:
5 Commission and to this Board.
No contractual agreement can negate that obligation.
We find that minority members are responsible for assuring the completeness of our factual record and the adequacy of factual responses to discovery.
Appli-
-cants must either transmit to the Board.the differing viewc 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.
In this respect, we find that Texas Utilities Electric Company has an obligation that goes beyond its representation to us.
Minority owners have independent responsibilities to this Board.
Texas Utilities must not interfere with them in any way in fulfilling those respon-sibilities.
We also note that there has been no objection to Bracos 7
special appearance.
Under the circumstances, Brazos' motion shall.be denied.
i 1
1 7
We do not anticipate permitting a general appearance by any minority member but we will consider motions for special appearances one at a time.
i
t I
Declaratory Urder:
6 ORDER Upon consideration of the - filings of the parties anct the entire record in this matter, it is this 24th day of September 1987 ORDERED The Motion for Declaratory Order filed by Brazoo Electric Power Co.,
Inc. (Brazos), a minority owner in the Comanche Peak project, on August 14, 1987, is denied, except to the extent'that the discuscion in the. accompanying memorandum may have clarified icsues concerning which Bracos requested a declaratory order.
THE ATOMIC SAFETY AND LICENSING BOARD:
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,_'L p_+l D ] ]-. n-Peter B.
Bloch, Chair Administrative Judge
- h. I /bb
/:vr Dr. Kenneth A.
McCollom Admirtistrative Judge
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Dr Wa lte6/ H. Jordan Administr$tive Judge Bethesda, Maryland i
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