ML20237K051

Forwards Objections & Responses of Brazos Electric Power Cooperative,Inc to Consolidated Intervenors Interrogatories & Request for Production of Documents.Related Correspondence

ML20237K051
Person / Time
Site:	Comanche Peak
Issue date:	08/14/1987
From:	Jablon R BRAZOS ELECTRIC POWER COOPERATIVE, INC., SPIEGEL & MCDIARMID
To:	Bloch P, Johnson E, Jordan W Atomic Safety and Licensing Board Panel
Shared Package
ML20237K054	List: ML20237K051 ML20237K073
References
CON-#387-4231 CPA, NUDOCS 8708190072
Download: ML20237K051 (16)

Text

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,, ,,, August 14, 1987 M ANNE SWANSON RENA STEINZOR Peter B. Bloch, Esq., Chairman Elizabeth B. Johnson Administrative Judge Administrative Judge Atomic Safety and Licensing Oak Ridge National Laboratory Board P.O. Box X U.S. Nuclear Regulatory Comm. Building 3500 Washington, D.C. 20555 Oak Ridge, TN 37930 Dr. Kenneth A. McCollom Dr. Walter H. Jordan Administrative Judge Administrative Judge 1107 West Knapp 881 W. Outer Drive Stillwater, OK 74075 Oak Ridge, TN 37830 Re: Texas Utilities Electric Company, et al.

(Comanche Peak Steam Electric Station, Unit 1),

Docket No. 50-445-CPA

Dear Licensing Board Members:

On August 12, 1987, Brazos Electric Powrar Cooperative

("Brazos") received Texas Utilities Electric Company's ("TU Electric's") and Ropes & Gray's refusal to file Brazos' proposed answers and objections to Consolidated Interrenors' Interrogatories and Request for Prodaction of Documents to Applicant Brazos Electric Power Cooperative (6/19/87). .1/

Previously, Ropes & Gray had refused to even discuss and consult with Brazos with respect to preparation of its responses.

Earlier this year, both the Board and the Director of the Office of Special Projects invited Brazos to bring problems with its representation by licensing counsel to the Board's attention.

Brazos is dissatisfied with the representation provided by Ropes

& Gray at the direction of TU Electric and has instructed 2/ Letter dated August 12, 1987 from Ropes & Gray (Eggeling) to Brazos (Jablon).

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i Licensing Board Page 2 August 14, 1987 undersigned counsel to enter this special appearance on its behalf to bring this situation to the Board's attention.

Brazos believes that TU Electric has the obligation to provide licensing counsel for all co-owners of Comanche Peak under the parties' Joint Ownership Agreement. Furthermore, Ropes

& Gray has not withdrawn its representation of Brazos and, in Brazos' view, continues to appear in these proceedings as counsel for Brazos. However, Ropes & Gray has informed Brazos that it will not represent Brazos' independent interests, that it will not respond to Brazos' inquiries as its licensing counsel, and will not file discovery responses on Brazos' behalf. There is no question as to the inadequacy of this representation. 2/

It is noteworthy that although one of the reasons Ropes

& Gray gave for refusing to file Brazos' responses is Brazos' (asserted) misinterpretation of'the Interrogatories, Brazos had specifically asked Ropes & Gray, its licensing counsel, to advise on Brazos' legal obligations with regard to the Consolidate Interveners' Interrogatories, and was refused. 2/ In addition, Brazos' request to review TU Electric's draft responses in conjunction with submitting its proposed responses to TU Electric was never acknowledged and refused through inaction by TU Electric. A/

Under these circumstances, and despite the lack of advice and consultation by licensing counsel on the Interrogatories, Brazos, in order to fulfill its licensing obligations, files its responses separately. Notwithstanding the foregoing, Brazos considers TU Electric's responses as being made on Brazos' behalf, and Brazos presently intends to comply with the instructions to the Consolidated Interveners' Interrogatories regarding supplementation after reviewing the responses submitted by TU Electric.

2/ A full account of the problem regarding the adequacy of Brazos' representation is contained in Brazos' Motion for Declaratory Order, filed with the Board on August 14, 1987.

2/ Egg Letter dated August 6, 1987 from Ropes & Gray (Eggeling) to Brazos (Blair); Letter dated July 7, 1987 from TU Electric (Beck) to Brazos (McCaskill); see also Letter dated June 6, 1987 from Brazos (Jablon, Weightman) to Ropes & Gray (Dignan, Eggeling) (regarding advice on past discovery requests) .

A/ E22 Letter dated July 22, 1987 from Brazos (Weightman) to Ropes & Gray (Eggeling) (requesting advance review of TU Electric's responses); Letter dated July 24, 1987 from Ropes &

Gray (Eggeling) to Brazos (Weightman) (indicating that Ropes &

' Gray had not been " authorized to, and would be surprised to, share with Brazos drafts of TU Electric's discovery responses") ;

i

l Licensing Board Page 3 August 14, 1987

.The responses enclosed with this letter were prepared by Brazos'for review and submission by '.ts licensing counsel, Ropes Fortions of the attached re sponses have been blocked. out

~

& Gray.

as they refer to documents to which TU Electric claims privilege 3

in the Texas state court litigatior concerning the Comanche Peak l Project.- TU Electric's' claims-of privilege and attorney work i product are currently pending before the court of Appeals, Fifth Supreme Judicial District of Texas at' Dallas in Texas Utilitigs  !

Electric Comoany v. The Honorable John McClellan Marshall, Cause No. 05-87-00887-CV, filed August 12, 1987, and the disputed documents are subject to an order staying production entered August 12, 1987 5/ Accordingly, references to the '

disputed document in Brazos' Interrogatory responses have been excised. A telecopied version of the signature page is enclosed in the response; the original will be supplied shortly.

Respectfully submitted, AIW Robert A. Jablon ue Bonnie S. Blair Ben Finkelstein Donald Weightman Barbara S. Esbin SPIEGEL & MCDIARMID Joseph R. Riley LAW OFFICES OF JOSEPH R. RILEY l

5/ The document at issue in both Brazos' responses to CASE's '

discovery requests and the Texas state court appeal was produced to.Brazos by TU Electric in the course of document discovery in that matter. Brazos determined that the document should be filed with the Board and requested that Ropes & Gray file the document on its behalf. Subsequently, TU Electric's litigation counsel informed Brazos that the document had been inadvertently produced and requested its return and destruction of any copies made. 1 Letter dated July 14, 1987 from Jackson, Walker, Winstead, Cantwell & Miller (Chambers) to Counsel for Minority owners (Tartt) , (Burchette) , (Jablon). TU Electric responded to Brazos' request that licensing counsel file the document, informed Brazos that its request would be denied, and threatened Brazos with retaliatory legal action should Brazos seek to act independently with respect to the document. Letter dated July 7, 1987 from TU Electric (Beck) to Brazos (Jablon).

Licensing. Board Page 4 i

August 14, 1987

),

4 Appearing Specially for Brazos Electric Power Cooperative, Inc.

Enclosure (s)

L cc: All parties to'this proceeding Marshall Searcy, Esq.-

William Burchette,-Esq.

Blake Tartt, Esq.

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Robert A. Jablon, Esq.

spiegel & NoDiarmid 1350 New York Avenue, N.W.

Washington, D.C. 20005-4798 Re In the Matter of Texas Utilities Electric company, et al., (Comanche Peak Steam Electric Station, Unit 11 NRC Docket No. 50-445-cPA

Dear Mr. Jablon:

We have been instructed by our client TU Electric to advise you that it has completed its review of the letter from Messrs. Spiegel & McDiarmid dated August 3, 1987, and

! its enclosure -- which is understood to comprise Brasos' proposed answers a.ut objections to the Consolidated Interveners' (6/19/87) Interrogatories and Requests for Production of Docutiants. Upon consideration, the Project Manaaer has concluded that it'will not be possible for it to submit these responses in the form proposed by Brasos.

In the first place, Brason' proposed answers contain numerous assertiors of fact which TU Electric believes to be falso or misleading. A substantial portion of those false assertions, moreovar, do not appear to have been advanced in response to the Interveners' questions, which are addressed to the delay i;d construction of CPSES which is at the heart of the admitted contention in this proceeding. Instead, Brazos has erected its own redefinition of the issue in its proposed e:%sr to the first interrogatory, ris , that TU Electric't 'ctions "may have delayed completion of CPSES by precluding, slowing, or undermining the NRC's confidence that an operating license should be granted." since the "NRC's confidence" rei non is hardly an element in the issue of why construction has not been completed within the time allotted by the origir.al construction permit, Brazos use of such a standard to inject self-serving falsehoods into the record can hardly be sponsored by the Project Manager or its attorneys.

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Ropes & GRAY - i Robert A. Jablon, Esq. August 12, 1987 -

l In the second place, a number of Brazos' proposed responses comprise assertions that some form of privilege against disclosure has attached to documents, information and ansparently opinions allegedly developed during the course of Brazos' trial preparation in the Texas state courts. Neither TU Electric or this office has, of course, seen these documents, information or opinions. Thus, neither TU Electric or its attorneys have an adequate basis for 1 concluding that the privilege which Brazos would assert has in fact attached to them. We are of course as well unable to support any request for an " appropriate protective order" such as we believe Brasos to be contemplating.

For these reasons, TU Electric shall not be submitting-the proposed responses contained in the enclosure to the spiegel & McDiarmid letter as Ang portion of the Applicants'

,' responses to the Interveners' Interrogatories -- except of

' course to the extent that Brazos' confirmations that it lacks knowledge of information responsive to the questions reinforces the belief that TU Electric's draft answers

,' captures all that is available to be disclosed under the Rules of practice.

In the event that Brasos remains desirous of advancing its purported claims of~a privilege not to respond to some of the questions, we suggest it should instruct its attorneys to prepare and submit appropriate papers advancing such claims on Brasos behalf on or before the current filing due date:

Friday, August 14, 1987.

Very truly your Willian 8. Egge 4 WsE/lme Advance copy via Telecopier

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Bonnie S. Blair, Esquire  ;)o;$ l10T tifR TO N W Spiegel & McDiarmid 1350 New York Avenue, N.W. '

Washington,'D.C. 20005-4798 RE: In the Matter of Texas Utilities Electric Company, et al, (Comanche Peak Steam Electric Station, Unit 1) NRC Docket Nc. 50-445-CPA i

Dear Ms. Blair:

I acknowledge receipt of your letter of August 3, submitting the responses of your client, Brazos Electric Power Cooperative, Inc. ("Brazos") to the inquiries directed

'to it by John Beck, on behalf of the project manager, TU Electric. You will appreciate that I do not take this to be an occasion to respond to the assertions of law and fact advanced in your letter,'which appear to me to be correct only insofar as they recognize that this firm does not and will.not serve as Brazos' attorneys.

I have forwarded Brazos' proposed responses to my client, TU Electric. I would expect that you will hear from them regarding their plans for utilization of those responses.

You may be interested that the Interveners have agreed to extend the time for responding to the Interrogatories until Friday, August 14.

Very truly yours, t . .

William S. Eggel' i h

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Ropes & Gray Ropes & Gray 225 Franklin Street 225 Franklin Street Boston , . MA 0211.0 Boston, MA 02110

Dear Tom and Bill:

We have been working.on responses to the questions asked in John Beck's April 27, 1987, letter to E.L. Wagoner, R.E.

McCaskill and J.H. Butts. We need responses from you as Brazos' licensing counsel to assure that we have a satisfactory understanding of the request.

First, how will the responses be used? We assume that they are for.the retrospective screening of past discovery, referred to in Mr.. Beck's April 27, 1987 letter. Is this correct? Would our responses be used for any other purpose? Do the questions relate to specific CASE and Staff (or other) discovery requests? If so, please identify the questions by

.specifying the' discovery requests to which the questions in the April 27 letter relate.

Please provide us with the scope and methodology of the retrospective screening, including any limitations. We make this request in light of the Board ruling that Brazos has independent  ;

obligations to comply with discovery requests and our reliance on your responses. It is therefore necessary for us to know the underlying methodology to the " retrospective screening." Have

• you had any discussions with counsel for Staff or CASE concerning the retrospective nereening or the interpretation of our obligation?

We do not understand the scope of your requests. For example, which employees, officers, managers, directors, and

_ Wil'iam S. Eggeling, Esq.

Page 2 June 6, 1987 contractors must be queried? For each question please provide a relevant time-frame for responses where such time-frame has not been indicated. Please advise us on whether and to what extent we have an obligation to update prior discovery responses in i light of other information. It would be helpful if you would l provide us with instructions which were given to TU Electric personnel in this and other regards. If you believe there are differences in the obligations of the Owners concerning discovery, please let us know.

Are Questions 2, 3 and 4 in the April 27 letter limited to Brazos' management? If they are not, please clarify the scope of the word "you."

l Do the " Deficiency Report Logs" referred to in Question 7 have a definition specified in discovery requests or elsewhere?

Please define this term for us.

We recognize that you have been-unwilling to advise us previously as our licensing counsel on these matters. However, given the scope and very considerable complexity of licensing discovery, Brazos must rely upon its licensing counsel to interpret its obligations. We therefore request your response to these questions to assure an accurate response to the questions in the April 27 letter and the underiying discovery requests.

Sincerely, Ob (h)D~

Roberr A. Jablon Donald Weightman Attorneys for Brazos Electric Power Cooperative, Inc.

RAJ/lgk cc: Richard E. McCaskill

! J.D. Copeland Joseph R. Riley, Esq.

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Dear Mr. Eggeling:

John Beck has asked that Brazos submit to TU Electric by July 31, 1987, our responsea and individually-based objections to the June 19, 1987 CPA interrogatories, together with copies of all documents reviewed or relied upon in preparing our answers.

It appears from this request, as well as from Mr. Beck's reference to " procedural errors" in his letter of July 2, that you contemplate preparing a response to the interrogatories on behalf of all owners. Accordingly, we will construe the request for responses and objections in light of your letter of December 9, 1986 to Joe Riley, and are not endeavoring to respond to the interrogatories insofar as they address such matters as TU Electric's conduct, policies, and decisions, when TU Electric first received notice of various criticisms, the identification of misapplied engineering principles and non-standard design ,

practices, and so on. j Brazos notes that the interrogatory instruction contemplates supplemental answers following the submission of a response by TU Electric on behalf of all permittees. While Brazos will certainly read TU Electric's responses in light of Brazos's own knowledge of the plant, Brazos suggests that our (

mutual interests may not be best served by Brazos's undertaking i this review following the filing of TU Electric's responses. If you can provide us with draft responses in advance cf the due date, which Mr. Beck has informed us to be August 7, then we will try to promptly raise with you any questions which we may have, q such as those we may have concerning the accuracy of the I responses. We suggest that the July 31 date specified by Mr. .

1 4

William Eggeling , Esq.

July 22, 1987 Page 2 Beck would be suitable for the exchange of draft responses,by all parties.

We are presently working on responses to those interrogatories which specifically concern the actions and '

knowledge of the minority owners. In particular, we anticipate  !

addressing certain parts of questions 1-5, 7, 15, and 16.

TU Electric's request for documents reviewed or relied upon in'our interrogatory responses may raise difficult questions related to those which were raised in Mr. Finkelstein's letter of July 16, and which are now before the Appeal Board in the OL l proceeding. We reiterate our request for an agreement tnat

. submission of documents by Brazos to you as licensing counsel in '

connection with the licensing proceeding not be deemed to waive any privileges available to Brazos_in other litigation under an appropriate protective order. Such an agreement should alleviate some of Brazos's conce' ens in this regard.

Yours truly, h0N Donald Weightman i'

Attorney for Brazos Electric Power' Cooperative, Inc.

cc: William H. Burchette, Esq.

Blake Tartt, Esq.

Joseph Robert Riley, Esq.  !

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Donald Weightman, Esq.

Spiegel & McDiarmid 1350 New York Avenue, N.W.

. Washington,.D.C.. 20005-4798

Dear Mr. Weightman:

Thank you for your letter of July 22. It seems to me there are several fundamental errors contained therein. ,

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First, I. trust you appreciate that the request submitted to Brazos by Mr. Beck came from the Project Manager, not from Ropes'&' Gray, and that we are not the organization with which you should take:up understandings, assumptions, or alternative constructions of your duty to the Project Manager _;

in response to that letter and under the terms of the Joint Ownership Agreement. My previous communications with Mr. j Riley (or anyone else associated with Brazos) were not l intended, and therefore would not seem to.be' appropriately L relied upon, as'a basis for constructions or understandings regarding new obligations.

!. You should also be aware that I have not been authorized I to, and would be surprised to be authorized to, share with Brazos drafta'of TO Electric's discovery responses. Any such arrangements, along.with the arrangements suggested in the concluding paragraph of your letter regarding a Protective Order, are appropriately discussed with the Project Manager, or'its designated representatives in this area. As we have repeatedly advised your law firm, we are not that representative.

}

l Finally, I note that your letter seems to suggest that l Brazca-is.only endeavoring to provide information it may have with respect to certain of the interrogatories. As a l courtesy to you, I advise you that I am currently unaware of 1

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_ - _ - _ ___ - - _ - - - - - - _ _ __ __ ___ J

Ropc0 & GRAY

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Donald Weightman, Esq. July 23, 1987

. 4 any. basis upon which such a reduction of Brazos' obligations can be framed.

Very truly yours,

[

William S gg ling WSE/lme cc: William H. Burchette, Esq. i Blake Tartt, Esq.

Joseph Ro: cert ' Riley, Esq.

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'& ROTHWELL

.025. Thomas Jefferson, N.W., Suite 700 Washincton, D.C. 20007 Fr. Robert A. Jablon fPEIGEL & MCDIAFMID '

1350'New York Avenue, N.W.

Kashincton, D. C. 20005-4798 Re: Cause No 86-6809 Texas Utilities Electric Company vs.

Tex-La Electric Cooperative of Texas, Inc., et al 14th Judicial District Court of Dallas County, Texas Gentlemen:

A document entitled, " Confidential Attorney-Client Pt'ivilege Report to Directors", dated May, 1986 has aoparentiv been inadvertently produced. Therefore, in accordance with our i aureement, we request that this document, together with any ctoies thereof, be returned to us forthwith. Said document

- btars Ascen i RL8069, beginning with frame 40234. The document dc es not bear an Atlis number.

Thank you for your attention in this matter.

Very truly yours,  !

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. July 7, 1987

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Robert A. Jablon, Esquire Spiegal & McDiarmid 1350 New York Ave, N.W.

Washington, D.C. 20005-4798

SUBJECT:

COMANCHE PEAK STEAM ELECTRIC STATION

Dear Mr. Jablon:

We have been provided a copy of your letter of June 25, 1987, to our counsel Thomas G. Dignan, Jr., of Ropes & Gray.

As'we understand your letter it suggests, on behalf of.your client Brazos Electric Power Cooperative, Inc., that two documents referenced,therein should-be' presented to.the Atomic Safety and Licensing Board currently hearing certain matters regarding the above-captioned project. We have studied your request:and are unable to perceive any reason why it should be accepted.

With regard to Mr. Dignan's letter to you of June 15, we have noted first that it is, as you know, merely confirmatory of information which has been consistently communicated to all the Owners of Comanche Peak and their counsel. Included among the many examples of these communications'would be Mr. Dignan's letter of September 16, 1986, which rather clearly established the position of Ropes & Gray on these matters (and foretold the actions which your continued disregard of these communications has now necessitated). We are further satisfied that the facts regarding these matters have been expressed -- at least as clearly as the English language permits -- in the recent submissions of Ropes & Gray in connection with CASE's motion to

" appoint" counsel for the minority owners. Further filings addressed to these matters are counterproductive to the licensing effort. (We note additionally that we are unaware of any currently extant discovery request or Board directive which would capture Mr. Dignan's letter. Thus, there does not appear to be any other basis for publishing it beyond the scope of its original addressees.)

With regard to your other submission, the memorandum drafted by TU Electric's counsel, our tentative conclusion is the same but for different reasons.

First we note that verbatim disclosure of the communications set forth in the memorandum are -- as its caption reflects -- clearly protected by the attorney / client privilege,. and perhaps others as well. We are at this point  ;

400 North Olne Street L B si Dallas, Texas 75201

4

' July 7, 1987 Page 2 of 2 L

still exploring how you came to obtain this document and whether your employment of it to date is not already seriously violative of your obligations to TU Electric, as well as perhaps to the Texas state courts and/cir others. You should be assured that any further publication of this document until these questions have been completely and satisfactorily resolved will be treated by TU Electric as a most serious breach of your duties. Second, inasmuch as the document itself is for the foregoing reasons not required to be produced at this juncture, we have gone on to analyze the substance of the information which our counsel encapsulated in this memorandum. We discern nothing factual in the memorandum which could be considered substantively inconsistent with any statements TU Electric has made to the Licensing Board or the parties in the proceedings going on there. .We l are, therefore, unaware of any obligation which TU Electric might have to have i disclosed the opinions'of one of its attorneys as reflected therein. If you  !

believe there are any such specific inconsistencies, or any other sources of a hypothesized obligation to disclose, we would appreciate it if you would promptly advise us of same -- being particular and specific as to their putative source and scope. When we have received any information you have on these points, we can further evaluate the rectitude of your alleged beliefs.

Until such time, however, we can do no more.

Your letter includes the somewhat shopworn threat that if TU Electric or its counsel do not accede to your views of the proper course for proceeding in the licensing hearings, Brazos will be " obliged" to act independently. It seems redundant to observe to you again that if your construction of the relationship between the Joint Owners were correct, there would be little point in most of the Joint Ownership Agreement's provisions embodying TU Electric with sole authority and responsibility in the licensing arena. We shall therefore restrict ourselves to reminding you that your continued attempt to usurp prerogatives your client assigned to the Project Manager must be added to the calculations which will take the measure of Brazos compliance with its contractual undertakings.

Very truly yours, y- 4. b John W. Beck c - J. R. Riley W. R. Burchette B. Tartt l

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