ML20245B543

Responds to 870311 Petition Requesting Mod of CPs CPPR-126 & CPPR-127.Petition Denied.Fr Notice Encl

ML20245B543
Person / Time
Site:	Comanche Peak
Issue date:	06/25/1987
From:	James Keppler NRC OFFICE OF SPECIAL PROJECTS
To:	Jablon R SPIEGEL & MCDIARMID
Shared Package
ML20216D254	List: ML20216D250 ML20216D371 ML20234C583 ML20245B543
References
2.206, DD-87-10, NUDOCS 8706300490
Download: ML20245B543 (5)

Text

-

p Cso

1. 'o,, UNITED STATES 8 n NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 h' $

g...../ DD-87-10 JUN 2 51987 Docket Nos.: 50-445 and 50-446 Robert A. Jablon, Esq.

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

Washington, DC 20005-4798

Dear Mr. Jablon:

This is in response to your " Request for Modification of Licenses" (petition) dated March 11, 1987 filed by you before the Director of the Office of Nuclear Reactor Regulation, pursuant to 10 CFR 92.206 of the Comission's regulations, on behalf of the Brazos Electric Cooperative, Inc. (Brazos).

Your. petition was referred to the Office of Special Projects for consideration because that office is now responsible for all licensing activities related to the Comanche Peak Steam Electric Station. The petition has been duly considered under?10 CFR 92.206 and, for the reasons stated in the enclosed " Director's Decision under 10 CFR 2.206," the petition has been denied.

. A copy of this decision lwill be filed with the Secretary of the Commission for its review in accordance with 10 CFR 62.206(c). As provided by this regulation, the decision will constitute the final action of the Commission 25 days after the date of issuance of the decision unless the Commission, on its own motion, institutes a' review of the decision within that time.

We have also enclosed a copy of the notice which is being filed with the Office of the Federal Register for publication.

Sincerely, Q: .~ .h /cdpf lk

,fdamesG.Keppler, Director Office of Special Projects

Enclosure:

As stated j cc w/ enclosure See next page

4 i

. Robert'A. Jablon, Esq. JUN % 51987 DD-87-10 Spiegel & McDearmid'

-DISTRIBUTION:

dDocket<Filesj(503445/446)?

~ ' ' ' " ~~

NRC PDR Local PDR-CPPD Reading (87-27)

OSP Reading VStello-JTaylor TRehm TMurley JGKeppler JAAxelrad CGrimes PMcKee JGoldberg, 0GC

-JMurray, OGC RMartin, RIV LChandler, OGC l SECY RMartin, RIV TMurley, NRR MBridgers (ED0-002624)

ED0 Reading BTompkins(87-27)

BClements, SECY MMalsch, 0GC JGoldberg, 0GC OPA ASLAB  ;

i ASLBP-ACRS(10)

JResner,PPMB/TIDC(2) i l

0GC; nNA. ~ n R OFC :D/ D :DIR:CPPD jy n

Q/ ,- :DI  :

p _____: ___ ......__

____ .:. ]: sam 7 ___:...___. . _:___,.. ......:__ _

NAME :P :CIGrimes :JGdidbh_g..... x tr d  : epner  :

__.___:. ....._________:..............:..............:_______.__....:.....t..______:....._______.  ;

DATE' :6/14/87 :6/19/87 :6/6/87 :6/M87 :6/$/87  :

-Y l u

l JUN 2 51987 Texas Utilities Electric Company l

CC*

Thomas G. Dignan, Jr. Asst. Director for Inspec. Programs' Ropes & Gray Comanche Peak Project Division 225 Franklin Street U.S. Nuclear Regulatory Comission Boston, Massachusetts 02110 P. O. Box 1029 Granbury, Texas 76048

' Robert A. Wooldridge, Esq. Regional Administrator, Region IV-Worsham, Forsythe, Sampels & U.S.' Nuclear Regulatory Commission Wooldridge 611 Ryan Plaza Drive Suite 1000 2001 Bryan Tower, Suite 2500 Arlington, Texas 76011 Dallas, Texas 75201 Lanny A. Sinkin Mr. Homer C. Schmidt Christic Institute Director of Nuclear Services 1324 North Capitol Street Texas Utilities Electric Company Washington, D.C. 20002 Skyway Tower 400 North Olive Street, L.B. 81 Ms. Billie Pirner Garde Dallas, Texas 75201 Government Accountability Project Midwest Office  ;

Mr. Robert E. Ballard, Jr. 104 E. Wisconsin Avenue  :

Director of Projects Appleton, Wisconsin 54915-8605 l Gibbs and Hill, Inc.

11 Pen Plaza New York, New York 10001 David R. Pigott, Esq.

Orrick, Herrington & Sutcliffe 600 Montgomery Street Mr. R. S. Howard San Francisco, California 94111  !

Westinghouse Electric Corporation P. O. Box 355 Anthony Z. Roisman, Esq.

Pittsburgh, Pennsylvania 15230 Suite 600 1401 New York Avenue, NW Renea Hicks., Esq. Washington, D.C. 20005 Assistant Attorney General Environmental Protection Division Robert Jablon P. O. Box 12548, Capitol Station Bonnie S. Blair Austin, Texas 78711 Spiegel & McDiarmid 1350 New York Avenue, NW Mrs. Juanita Ellis, President Washington, D.C. 20005-4798 Citizens Association for Sound Energy 1426 South Polk Texas Utilities Electric Company Dallas, Texas 75224 ATTN: fir. W. G. Counsil Executive Vice President Ms. Nancy H. Williams 400 !!. Olive Street, L.B. 81 CYGNA Energy Services Dallas, Texas 75201 2121 N. California Blvd., Suite 390 Walnut Creek, CA 94596

JUN 2 51987 Texas Utilities Electric Company 1 cc:

Joseph F. Fulbright Fulbright & Jaworski 1301 McKinney Street Houston, Texas 77010 Mr. John W. Beck ,

)

Vice President Texas Utilities Electric Company ]

Skyway Tower 400 North Olive Street, L.B. 81 Dallas, Texas 75201 Mr. Jack Redding c/o Qatel Service Corp.

Texas Utilities Electric Company 7910 Woodmont Avenue, Ste. 208 Bethesda, Maryland 20814 William A. Burchette, Esq.

Counsel for Tex-La Electric Cooperative of Texas Heron, Burchette, Ruckert & Rothwell Suite.700 1025 Thomas Jefferson Street, NW Washington, D.C. 20007 James M. McGaughy GDS Associates Inc.

Suite 450 2525 Cumberland Parkway Atlanta, Georgia 30339 Administrative Judge Peter Bloch U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Elizabeth B. Johnson f Administrative Judge Oak Ridge National Laboratory P. O. Box X, Building 3500 Oak Ridge, Tennessee 37830 Dr. Kenneth A. McCollom j 1107 West Knapp l Stillwater, Oklahoma 74075 l 1

Dr. Walter H. Jordan Administrative Judge 881 West Outer Drive j Oak Ridge, Tennessee 37830 l I

l

.. s

JUN 2 5- $67 I Texas' Utilities Electric Company -3 e

cc:

Mr.= Paul Gosselink Attorney General's Office P. O. Box 12548, Capitol Station

- Austin, Texas 78711 {

v

. Bureau of Radiation. Control State of Texas 1100 West-49th Street

-Austin, Texas 78756 Office of the Governor ATTN: Darla Parker Office of Intergovernmental Relations P. O. Box 13561 Austin, Texas 78711 Honorable George Crump

. County Judge Glen Rose,. Texas 76043

Honorable Milton Meyer County Judge

' Hood County Courthouse Granbury, Texas 76048

DD-87 10 UNITED ST ATES OF AMERIC A l NUCLEAR REGUL ATORY COMMISSION OFFICE OF SPECI AL PROJECTS  ;

1 Jemes G. Keppler, Director.

LIn the Matter of ) .

)

TEX AS UTILITIES ELECTRIC ) Docket Nos.50-445' COMP AN Y, ET AL. ) 50-446 (Comanche Peak Steam Electric (10 C .F. R . 5 2.206)

Station, Units 1 ana 2) )

DIR E C T O R'S D E CISIO N U N DE R 10 C.F.R. 5 2.206 INTRODUCTION On March 11, 1987, the Brazos Electric Power Cooperative, Inc.

(Brazos) filed its " Request for Modification of Licenses" (Petition) before- the Director of the Office of Nuclear Reactor Regulation. M Brazos requested the Director, pursuant to 10 C.F.R. 5 2.206, to institute a show cause proceeding pursuant to 10 C.F.R. 5 2.202 to modify the f'

construction permits and licenses already issued and to impose a prospective condition on any permits and licenses subsequently issued or renewed for the Comanche Peak Steam Electric Station, Units 1 and 2 (Comanche Peak Project), or for such other action as may be proper.

Specifically, Brazos requested that the Nuclear Regulatory Commission  ;

i 1/ Following submittal of the Petition, the Office of Special Projects was created .with overall N RC Staff responsibility for the Comanche Peak Project. T he Petition was subsequently referred to the Office of Special Projects for action.

9 A A1 sJ g'II 6.

E (9'W v f s Ny h

l (NRC) order licensee and license applicant Texas Utilities Electric Company (TV Electric) to assume co-owner /co-applicant Brazos' ownership I interest in the Comanche Peak Project by purchase at ' Brazos' net book cost, and for such other relief as may be appropriate. The basis for the i relief requested was the allegation by Brazos that TV Electric has made material false statements to the Atomic Safety and Licensing Boards (Boards) presioing over the Comanche Peak operating license and construction permit extension proceedings.- For the reasons which follow, Brazos' Petition pursuant to 10 C.F.R 6 2.206 is denied.

DISCUSSION in its Petition, Brazos asserted that law firms hired by TU Electric have specifically ana repeatedly informed the Commission and its Boards that they represented all Comanche Peak co-owners, including Brazos.

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

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

through its legal counsel, have been material false statements. Such material false statements, and the situation created with respect to the representation issue in the NRC proceedings, Brazos argued, cast doubt on the veracity of all of TU Electric's statements as they pertain to Brazos.

l Brazos submited that TV Electric's asserticns of its representation of Brazos as a co-owner /co-applicant, through its licensing counsel in proceedings before the NRC, constitute intentional material false i

statements under Section 186 of the Atomic Energy Act and thus are a sufficient ground under 10 C.F.R. 6 2.202 for the Commission to modify the construction permit to require that TV Electric assume Brazos' interest in the Comanche Peak Project. Brazos further argued that these false representations are clearly information that a reasonable NRC Staff member should consider in performing the task of evaluating the character and mdnagement integrity of an NRC permittee, fuel licensee and operating license applicant such as TV Electric.

For the following reasons, I have decided to deny Brazos' Petitiun.

Fi rst, no health and safety issues have been identified in the Petition <

which warrant the requested relief. While specific false statements have been alleged, there has been no showing that these alleged false statements warrant any action. Brazos suggests in its Petition that its

, allegations bear upon the character and management integrity of TU 1

Electric. However, the Petition presents no particulars in this regard. 1 i

The Petition fails to identify any instance where information submitted to the NRC by TV Electric contained a material deficiency. The Petition also presents no information to support an argument that any potential improprieties on the part of counsel for lead applicant TU Electric are i linked to TV Electric management itself and thus call into question the l character and management integrity of TU Electric. Thus, it is inappropriate at this time to modify either the outstending construction permits or special nuclear material licenses for the Comanche Peak Project 1 due to health and safety concerns. U 2/ This is particularly so since the facility is still under construction. l l

l

Secondly, under well-established Commission principles, relief under 10 C.F.R. 9 2.206 is not available when, as here, there is an existing l l

forum available to the petitioner in which issues raised should more logically be presented. 3/ Where a Board is presiding in a proceeding with jurisdiction to consider the matter, a party to that proceeding may not choose to avoid that forum by use of 10 C.F.R 5 2.206. S/ The issues underlying Brazos' Petition in essence challenge the sufficiency of the representation by the applicants in the Comanche Peak proceedings. In particular, Brazos contended that lead applicant's counsel represented to the Board that it represented all applicants in the proceeding which 1 Brazos-claims was not the case in that it, Brazos, was not represented by counsel for lead applicant. This is a matter within the power and responsibility of the Boards themselves to address rather than the Director of an NRC Office. See 10 C.F.R. 59 2.713, 2.718(e), (m). This is particularly so where the Petitioner, here Brazos, is a party to the proceedings, currently pending before the Board, in which the alleged

-3/

Brazos should understand that the NRC Staff views it as a party to the Comanche Peak proceedings with the d uty to brin g relevant issues to the attention of presiding Boards. To the extent an agreement w hich Brazos has entered into may purport to limit its duties to the Board, such agreement must yield to Brazos' duty to fully disclose.

4/- Pacific Gas and Electric Company ( Diablo Canyon N uclear Power Plant, Units 1 & 2), CLI-81-6,13 N R C 443, 446 (1981).

4 false statements 5/ were made. To the extent then that Brazos wishes to raise issues regarding the sufficiency of the representation by lead applicant TU Electric before presiding Comanche Peak Boards or the character or management integrity of TU Electric, Brazos should submit a specific request to such Boards. 5/ Since Brazos has not identified any public health and safety issues that warrant action by the staff, deferral to the Boards is appropriate.

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

-5/

The " false statements" identified by Brazos relate solely to the scope of representation of the several co-owners /co-applicants. Since these statements do not involve matters which affect the public health and safety, the environment, or the common defense and security, they would not be considered " material false statements" under Section 186 of the Atomic Energy Act.

-6/

One Atomic Safety and Licensing Board has considered issues related to the Brazos' Petition and issued a Memorandum and Order discussing them. Texas Utilities Electric Company, et al.

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

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

Z/ The N RC's authority does not cover the contractual arrangements between TUEC and the other owners except insofar as they might affect matters affecting public health, safety, and the environment, or the common defense and security. The issue of the adequacy of TUEC's representation of the minority share owners, as presented in Brazos' Petition, has no effect on these matters. Further, even if it were found that TUEC had made material false statements, the relief sought by Brazos does not appear to be warranted or appropriate.

Rather, some other remedy would have to be fashioned to ensure that information provided by all co-applicants or co-licensees would l be complete and accurate. The relief sought by Brazos would have no such effect.

i t

+ CONCLUSION The relief requested in the Petition is denied. No specific health and safety issues have been identified in the Petition. To the extent that the Petition alleges misrepresentation on the part of counsel for TU Electric as lead applicant before the Boards sitting to resolve issues regarding the Comanche Peak facility, the issue is more logically addressed by the sitting Board. Brazos, as a party to the proceedings before the Board, should bring this issue to the Board's attention.

Furthermore, the specific relief requested by Brazos is inappropriate.

A copy of this decision will be filed with the Secretary for the Commission's review in accordance' with 10 C.F.R 5 2.206(c). As provided in 10 C.F.R. 5 2.206(c), this Decision will become the final action of the Coninission twenty-five (25) days after issuance unless the Commission elects to review thit. Decision on its own motion within that time, s%w.S /767yzdes

,7 James G. Keppler, Director Office of Special Projects Dated at Bethesda Mary this yd day of Dw, land 1987 t/