ML20238A707

Notice of Special Appearance.* Appearance Entered Solely for Filing Response to Consolidated Intervenors 870619 Interrogatories & Request for Production of Documents & Motion for Protective Order.Certificate of Svc Encl

ML20238A707
Person / Time
Site:	Comanche Peak
Issue date:	08/14/1987
From:	Bailey J TEXAS MUNICIPAL POWER AGENCY
To:
References
CON-#387-4236 CPA, NUDOCS 8708210060
Download: ML20238A707 (14)

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DOCVETED' UWc WGTI!D SDGES T MGRICA NUCLEAR REGUUSMY OCDMISSION 37 AUG 17 P3 :06 before the m AIMIC SAFEFY NO LICENSING BOhRD In the Matter of )(

)(

)( Docket No. 50-445-CPA TEXAS UTILITIES ELECTRIC COMPANY, )( ,

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et al., )(

)(

(Cananche Peak Steam Electric Station )(

Unit I)

NMICE OF SPECIAL APPEARANCE }

Pursuant to 10 C.F.R. sec. 2.713(b) the undersigned attorney enters his special appearance in the above captioned matter and in connection therewith provides ' he following inforTnation:

Name: Janes R. Bailey Address: P.O. Box 7000 Bryan, Texas 77805 Telephone: (M 9) 873-2013 Name & Address i of Party: Texas Municipal Power Agency  !

P.O. Box 7000 t Bryan, Texas 77805 I am currently admitted to practice before the United States District j Court for the Northern District of Texas, the United States District Court for i the Southern District of Texas, and the Supreme Court M 'i,3as.

This special appearance is being entered solely for the purpose of filing the " Response of Texas Municipal Power Agency to ' Consolidated Interveners' interrogatories and Request for Production of Documents to Applicant Texas Municipal Power Authority (sic) (6/19/87)' and Motion for Protective Order".

i This special appearance is necessary because Ropes & Gray, the lead counsel 0 i

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representing all Applicants in this proceeding and in the operating license-proceedings has refused to follow the directions of the Texas Municipal Power Agency ("7MPA") with regard to the representation of TMPA in the construction permit proceeding. Ropes & Gray received on behalf of TMPA " Consolidated

' Interveners' Interrogatories and Request for Production of Documents to Applicant Texas Municipal Power Authority (6/19/87)". 7MPA directed that Ropes. & Gray enter IMPA's objections to the Interrogatories and Request for j Production, and further directed that Ropes & Gray deliver certain documents to the Consolidated Interveners in response to the Request for Production.

'(See attached letter dated August 4,1987 from Ed Wagoner, General Manager of TMPA to Thmas Dignan of Ropes & Gray and John Beck of TU Electric). Ropes &

Gray, at the instance of TU Electric, refused to follow those directions.

(See attached letters dated August 6 from William J. Eggeling of Ropes & Gray to Wagener; August 11 frm Deck to Wagoner; August 11 letter frm Wagoner to Beck; and August 12 letter frm Eggeling to Wagoner). IMPA has rcpeatedly requested that, if Ropes & ' Gray refuses to acknowledge its attorney-client relationship with IMPA, that TU Electric hire counsel who will represent the interests of TMPA in these proceedings, and not solely the interests of TU Electric. This TU Electric has refused to do. 7MPA therefore, mindful of its legal obligations before the ASLB, was placed in the predicament of its ,

counsel refusing to assist IMPA in discharging those legal obligations.

IMPA's general counsel, who, while meeting the technical requirements of

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practice before the NRC, readily admits to not being an expert in nuclear licensing matters, has been forced to appear in these proceedings on behalf of TMPA.

Respectfully subnitted,

,  :) A 9 Janbs R. Bailey /

P.O. Box 7000 Bryan, Texas 77805 (409) 873-2013 General Counsel for Texas Municipal Pcuer Agency i

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Serving the cities of Brysn. Denton, Garland & Greenville.

August 4,1987  ;

Mr. John Beck, Chairman Owners' Comittee TV Electric 2600 Skyway Tower 400 N. Olive Street t..B. 81 Dallas, TX 75201 Mr. Thomas G. Dignan, Jr.

Ropes & Gray 225 Franklin Street Boston, MA 02110 RE: CASE Interrogatories to TMPA Gentlemen:

This is in response to Mr. Beck's letter of July 7,1987 requesting certain information concerning TMP A's responses to the CASE and Meddie Gregory interrogatories of July 19, 1987. I am replying )to Mr. Dignan, as well as Mr.

Beck, since Texas Municipal Power Agency (TMPA is relying on the fi rm of 1

Ropes & Gray and the other licensing fi rms as TMPA's attorneys in the licensing proceedings.

It is essential that TMPA have legal representation in the licensing proceedings , Such legal representation may be per formed by attorneys representing TMPA as well as TU Electric, but such attorneys must assume the responsibilities of such joint representation and not take actions favorable to one client and detrimental to another. If attorneys cannot be found to i jointly represent the best interests of both clients, then TMPA insists that TU Electric provide it with separate representation at the expense of the project.

TMPA's objective is that Comanche Peak be licensed and operating, as long as the safety of the plant can be assured. Each of you shares that objective.

TMPA believes the plant has and continues to cost too much, and that it has taken far too long to obtain licenses and begin operations. TMPA continues to have concerns that Comanche Peak will ever be licensed and operating.  ;

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Mr. John Beck', Chairman l Mr. Thomas G. Dignan, Jr.

August 4, 1987 - Page 2 The conduct of TU Electric and the counsel it has engaged to represent the owners in the licensing proceedings are principal causes of the failure to 1 achieve our mutually desirable objective of obtaining operating licenses. For example , Ropes & Gray, as TMPA's attorneys in the licensing proceedings ,

received the June 19 discovery request on TNPA's behal f. Instead of .

contacting TMPA to counsel with TMPA and aid it in properly responding to the request without compromising TMPA's best interests, Ropes & Gray delivered the discovery request to TV Electric. TV Electric then delivered it to TNPA, with the further request that our responses be delivered to TV Electric, not to the attorneys engaged to represent TMPA in the licensing proceeding, presumably so that TU Electric could deliver the responses to Ropes & Gray, who could then deliver the responses to CASE. This ridiculous exercise in addition to being pointless, has the sole objective of attempting to protect a position which is being taken by TV Electric in the state court litigation and gaining some advantage in that case. Judge Bloch has made it clear that regardless of the '

Joint Ownership Agreement, each license applicant has the responsibility to i disclose certain information to the ASLB, and to re spond to discovery requests. TMPA cannot fulfill those duties without the direct assistance of licensing attorneys who acknowledge that they represent TMPA and that they are protecting TMP A's best interests in all respects. We should stop this nonsense of John Beck simply telling us what Ropes & Gray has told him to tell us. If Ropes & Gray cannot, or will not, assume the responsibility of jointly representing both our best interests in all respects and in all forums, then either Ropes & Gray should be replaced or TU Electric should provide licensing attorneys for TMPA, paid for with project funds, as it is obligated to do pursuant to the Joint Ownership Agreement.

1 We have made this request of Mr. Beck on a number of occasions, without any I response whatsoever. In light of Judge Marshall's recent pronouncement that f TV Electric owes a special duty to TMPA, TU Electric should be more responsive  !

to TMPA's requests. Only by stopping this charade of who is representing who j can TMPA effectively assist in the licensing.

As to the CASE and Meddie Gregory interrogatories themselves, TMPA, wants the interrogatories objected to as a whole on the grounds that they are unduly burdensome and oppt essive, since any such information or documents TMPA would have in response are likely a matter of public record. Furthermore, any compilation of such information or documentation which may exist is attorney or consultant work product prepared in anticipation of and in connection with  !

the litigation filed by TV Electric against TMPA. As our attorneys for licensing matters, we request that Ropes & Gray lodge these objections on TMPA's behal f and TMPA fully expects that Ropes & Gray will enter these objections on its behalf. If Ropes & Gray cannot, or will not, do this, then TMPA once again demands that Rcpes & Gray be discharged or that TV Electric ful fill its obligations and engage separate licensing counsel for TMPA paid with project fu nd s . The failure to honor TMPA's desires in this connection will further inhibit the licensing and operating of Comanthe Peak.

Mr. John Beck, Chairman Mr. Thomas G. Dignan, Jr.

August 4, 1987 - Page 3 TNPA realizes, of course, that its objections are subject to its duties to the NRC and the general public to disclose safety significant matters. TMPA I intends to discharge those duties. TMPA, therefore, requests that Ropes &

Gray, as its counsel, convey to the NRC and CASE TMPA's intention and desire to bring to the NRC's attention all information and documentation (not already a matter of public record) which TMPA is or becomes aware of, and which it believes might reasonably be considered safety significant. In that regard, TMPA requests that an order be obtained from the ASLB that TV Electric may not sue TMPA when TMPA in good faith attempts to meet its legal duties or responds '

to discovery requests. Our concern is based upon the letter dated July 7, 1987 from Mr. Beck to Robert Jablon of Spiegel & McDiarmid, Brazos' litigation counsel, which contains a threat by TV Electric to sue Bra zos if Brazos attempts to discharge its legal duties to the NRC. TMPA assumes that TU Electric's threat applies equally to TMPA and Tex-La. TMPA is extremely disturbed that the threat was ever made. Since it was, TMPA must now insist that the~ ASLB give it protection against retaliation by TV Electric.

In response to the CASE and Meddie Gregory interrogatories TMPA is reviewing ,

dts documentation. TMPA has not yet found information or documentation 1 concerning Comanche Peak, which is safety significant, which is not already a matter of public record except for one document which TMPA insists be disclosed. The document was the subject of the July 7,1987 letter from Mr.

Beck to Mr. Jablon. TMPA views this document to be safety significant, and believes that it should be disclosed. Of course, if Ropes & Gray or one ~of the other licensing firms delivers to TMPA a legal opinion, as TMPA's counsel, that this document is not safety significant and that it need not be disclosed, then TMPA will reconsider its insistence on dis closure . Absent such a legal opinion, the document must be turned over.

Just so there is no misunderstanding, TMPA reiterates:

1. TV Electric should cease requiring the attorneys it has engaged to represent all owners (which attorneys are paid with project funds) to take positions in the licensing proceedings which are detrimental to the licensing effort and which only serve to protect positions TV Electric is taking in the state court litigation.

2. Ropes & Gray and the other licensing firms should acknowledge that they are attorneys for TMPA as well as TU Electric and the other Comanche Peak co-owners and that they will protect TMPA's interests and not take positions detrimental to TMPA's best interests, or such attorneys should be discharged and others hired who can represent all the owners equally, or TV Electric should hi re separate licensing attorneys for TMPA whose fees will be charged to the project.

Mr. .)ohn Beck, Chairman Mr. Thomas G. Dignan, Jr.

August 4, 1987 - Page 4

3. The CASE and Meddie Gregory interrogatories should be objected to as being unduly burdensome and oppressive, and as inquiring into matters that are privileged.

4. An order should be obtained from the ASLB that TU Electric may not sue TMPA when TMPA in good faith attempts to comply with discovery requests in the' licensing proceeding, or when TMPA in good faith ,

attempts to meet its legal duty to disclose information to the NRC.  !

5. Absent a legal opinion directed to TMPA as the client that it need not be disclosed, the document which is the subject of the July 7, 1987 letter from Mr. Beck to Mr. Jablon must be disclosed to the NRC.

Please do not file anything with the NRC on TMPA's behalf in response to the discovery request without first furnishing it to TMPA and obtaining TMPA's approval.

Finally, with regard to the statement in your letter of July 31 to me that our response to your request for information relating to the CASE interrogatories is delinquent, we note that the operation of Comanche Peak has been delinquent for six years.

Thanks for your consideration.

Sincerely, j

'*/ h .

EdWagoner[

I General Mar,ager l

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{. f} 1 f[r.-Ed Wagoner AU'3 F1 1987 General Manager Texas Municipal Power Agency GENERAL MANAGER P.O. Box 7000

-Byran, Texas 77805 RE:- In'the. Matter of Texas. Utilities. Electric Company, et al, (Comanche Peak Steam Electric Station, Unit 1) NRC Docket No. 50-445-CPA

Dear Mr.. Wagoner:

We.are'in receipt of your letter of August 4, addressed

.to John Beck, as well as to my partner, Tom Dignan. I shall not endeavor herein.to respond to the numerous

'self-serving and distorted statements in your letter; I 1 assume that:any. response to those. statements'will come from my client, TU Electric, as necessary or appropriate and in proper. season.

.In light of the several purported directions, instructions and peremptory commands sprinkled throughout .

your letter, however, it seems appropriate to remind you again that our only client in this raatter is the Project '

Manager TU Electric. Actions we may take or forbear to take will only be.;those directed for us by TU. Electric. Any

. advice or opinions which we may from time to time render are  !

solely for'our client r.d may be shared with the other i Owners (or anyone elve only as it sees fit. TMPA, and its attorneys, should not :.ct or fail to act to protect its own interests on the basis of any different assumptions.

Very truly yo s, 1

William S. Egg ing I WSE/jmm

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!!B1lE -- REC'D TMPA E- E AUG 111987 l 7tlaECTRic GENERAL MANAGER l

John w, w  ;

na e,nJem i August 11, 1987 '

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Mr. Ed Wagoner General Manager Texas Municipal Power Agency P. O. Box 7000 Dryan, Texas 77805

Dear Mr. Wagoner:

j We are in receipt of your letter of August 4, addressed to me, as well as to Thomas G. Dignan, one of our attorneys in i the lic=/nsing proceedings before the NRC for the above-captioned project. We shall not at this time respond to all of the assertions and den. ands contained in that letter

- but may do so in due course to the extent that such is appropriate. ,

i The current matter of concern, as TMPA.should know, is the duty to respond to the interrogatories submitted by the Interveners in the CPA case, pursuant to the Rules of Practice before the NRC. We do not fully understand your answer to our effort, as Project Manager, to obtain information responsive to these interrogatories. In the i first fall paragraph on page 3 of your letter, you state:

"In response to the CASE and Meddie Gregory interrogatories, TMPA is reviewing its documentation.

TMPA has not yet fcund information or documentation concerning Comanche Peak, which is safety significant, l which is not already a matter of public record ..."

No criterion such as " safety significant" was included in the inquiries directed to TMPA, however. We are, there-fore, unsure whether TMPA has properly carried out its duty of investigation arising cut of these discovtry requests, i

400 Nonh Olive Street L.B 8 4 DaHas, du 75201

A0s 11'1 5 7-: 13:59 L!CEN?E TU'GC0 PAGE.03'

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Inasmuch.as TMPA. professes to be-attempting ' faithfully to

' discharge its responsibilities .under. the Joint Ownership i Agreement,: we are prepared to presume that it has done so.

Such 'an assumption ,will result 'in the: conclusion that tne . interrogatories is. that, it TMPA's answer to all possesses no'information responsive thereto:which is not a matter of public. record.

If this i s' not 'the case, we . request that you advise us immediately - by return. telex ~ TU Electric s attorneys have obtained an extension of cne weex in order..to respond to the~ interveners Interrogatories. It is imperative that j you address.th.ts matter forthwith so tnat that' schedule can- l be met..

Very'truly yours, W.h::!_

John W. Beck j i

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Serving the cities of Bryan. Denton Garland & Greenville.

August 11, 1987 ,

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Mr. John Peck Chainnan, Owners' Comnittee Texas Utilities-Generating Division i Ekyway "'ower {

400 N. Olive Street i L.B. 81 Dallas, Texas 75201 Re: CASE Interrogatories to 'IMPA

Dear Mr. BecA:

I have received your letter dated August 11 concerning the CASE interrogatories. You conclude in the letter that '"IMPA's answer to all the interrogatories is that it possesses no infonnation responsive thereto which is not a matter of public record." I believe that my response to your earlier letter is clear. I r quested that Ropes & Gray, object to the interrogatories as being unduly burdenscre and oppressive, and ingairing into material which is attorney or consultant work product protected, or is otherwise protated by attorney-client privilege. Mcw ver, I did specifically request that the docununt which is the subject of your July 7,1987 letter to Robert Jablon be disclosed to the imC.

If it is your view that we have not fulfilled our legal obligations with respect to these interrogatories, then w will be glad to discuss that matter with Ropes & Gray, once that finn hos acknowledged its attorney-client relationship with 'IMPA, or with another licensing firm paid for by the project which agrees to act as 'IMPA's attorney.

Sincerely, TEXAS MUNICIPAL POWER AGENCY Ed Wagoner General Manager EW/JB:sc cc: Mr. John Butts Mr. Richard McCaskill f

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• f E 86 (40t; 52 r 0010 INit p N ASCN AL tel?) 423-8 9 0 g TC6(CDP:CP (207) 42 3"629 August 12, 1987 Mr. Ed Wagoner REC'D 3tnn i General Manager Texas Municipal Power Agency AUG 121987 P.O. Box 7000 syran, Texas 77 sos i

. GENERAL MANAGEN Re: In the Matter of Texas Utilities Electric Company, et al., (Comanche Peak Steam Electric Station, Unit 1. NRC Docket No. 50_i45-CPA

Dear Mr. Wagoner:

Our client TU Electric, upon review of your letters of August 4, and August 11, 1987, has instructed us to advise you that TU Electric shall not be including in the Applicants' Responses to the Interveners' Interrogatories the objections which you have requested be advanced therein; nor will those Responses include submission of the privileged document mentioned therein.

To whatever extent TMPA and its attorneys believo that it possesses grounds for its proposed objections and that the same are valid and meritorious, you should direct those attorneys to advance same on TMPA's behalf alons, on or before the filing deadline of Friday, August 14, 1987.

Very truly yours William S. Eggel f

WSE/ime Advance Copy via Telecopier

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.g gug 17 P 3 :06 CERTIFICATE OF SERVICE OF't. _

, ,a I, James R. Bailey, hereby' certify that on August 14, 1987 INriade [ service of the within documents by mailing copies thereof, postage prepaid, to:

Peter B. Bloch,-Esquire Renea' Hicks, Esquire Chairman Assistant Attorney General ,

Environment'al Protection Division Administrative Judge P.O. Box 12548, Capital Station Atctnic Safety and Licensing Board l U. S. Nuclear Regulatory Ccmnission Austin, Texas 78711 l Washington, D. C. 20555 .

Dr. Walter H. Jordan Anthony Roisman, Esquire Administrative Judge Suite 600 881 W. Outer Drive 1401 New York Avenue, N.W. '

Oak Ridge, Tennessee 37830 Washington, D. C. 20005 Chairman Dr. Kenneth A. McCo11cxn Atcznic Safety and Licensing Administrative _ Judge Appeal Panel 1107 West Knapp U. S. Nuclear Regulatory Ccunission Stillwater, Oklahczna 74075 Washington, D.'C. 20555

. Lawrence J. Chandler, Esquire Elizabeth B. Johnson 1

' Office of the Executive Administrative Judge Legal Director' Oak Ridge National Laboratory U. S. Nuclear Regulatory Comnission P.O. Box X, Building 3500 Washington, D. C. 20555 Oak Ridge, Tennessee 37830 Mr. James E. Cummins Nancy Williams Resident Inspector Cygna Energy Services, Inc.

Comanche Peak S.E.S. 101 California Street c/o U. S. Nuclear Regulatory Conmission Suite 1000 P.O. Box 38 San Francisco, California 94111 Glen Rose, Texas 76043 Ms. Billie Pirner Garde Ellen Ginsberg, Esquire Midwest Office Atcrnic Safety and Licensing Board 3424 N. Marcos Lane Panel Appleton, WI 54911 U.S. Nuclear Regulatory Ccr1nission Washington, D. C. 20555 l Chairman Mr. Lanny A. Sinkin Atamic Safety and Licensing Board Panel Christic Institute ,

U. S. Nuclear Regulatory Ccmnission 1324 North Capitol Street Washington, D. C. 20555 Washington, D. C. 20002 4 .,

Mrs. Juanita Ellis Mr. Robert D. Martin President, CASE Regional Administrator Region IV 1426 3. Polk Street U.S. Nuclear Regulatory Cm mission Dallas, Texas 75224 Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 Geary S. 4izuno, Esq.

Office or the Executive Legal Director U.S. Nuclear Regulatory Cw mission Washington, D.C. 20555 3 N2 di vf Jamh R. Bailey /

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