ML19247B177
| ML19247B177 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 07/13/1979 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 7908080131 | |
| Download: ML19247B177 (12) | |
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION.pf 0
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ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S.
Rosenthal, Chairman 0
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L Michael C.
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In the Matter of
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VIRGINIA ELECTRIC AND POWER
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Docket Nos. 50-338 OL COMPANY
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50-339 OL
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(North Anna Nuclear Power
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Station, Units 1 and 2)
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NI 13 n79 MEMORANDUM AND ORDER July 13, 1979 (ALAB-555)
In accordance with ALAB-529, 9 NRC 153 (1979), we held an evidentiary hearing last month on two safety issues which we had taken up on our own initiative in this operating li-cense proceeding involving the first two units of the North Anna facility.
One of those issues concerned the possibility that damage to safety-related structures would be occasioned by pieces of the turbine breaking loose and, in the form of missiles, striking those structures.
On this issue, the sole participants were the applicent and the NRC staff.
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Intervenors Geraldine Arnold and the Commonwealth of Virginia confined their participation in the hearing to the other issue there considered (which involved the settlement of the land under the facility's pumphouse).
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. One of the witnesses for the applicant was Dr. Douglas H.
Shaffer, a mathematician in the employ of the Westinghouse Electric Corporation (the F.anufacturer of the North Anna tur-bines).
His prepared westimony '/ addressed the probabilities of the generation and ejection of a turbine missile during plant operation.
Certain values were assigned to those prob-abilities.
According to the testimony, the probabilities had been arrived at "by fault tree methodology".
During examination of Dr. Shaffer by the members of this Board, he was asked to provide greater detail respecting the methodology which had been employed in producing the fault trees he had utilized.
Dr. Shaffer responded that " [ t ] he fault trees that I referred to here were included in full in the report issued by Westinghouse in March of 1974, covering this probability investigation" (App. Tr. 472).
Although Shaffer did not have that report-3/ in his immediate Dr.
_2/
Authored jointly with another applicant's witness, Millard F.
Smith (who is also employed by Westinghouse).
--3/
" Analysis of the Probability of the Generation and Strike of Missiles from a Nuclear Turbine".
Although the author of the report was not identified, the cover page indicated that the information contained therein was derived from the results of a probability analysis conducted by, among others, Dr. Shaffer.
The report had not been alluded to in the Shaffer testimony itself.
It had, however, been cited in the portion of the North Anna Final Safety Analysis Report which had been appended to that testimony.
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. possession, he obtained it during a brief recess called for that purpose (App. Tr. 473).
The Board's cursory review of the report over the luncheon hour disclosed that the flow diagram for the 2e -
structive overspeed b! fault tree did not provide individual values for each of the various components
(" root events") of the tree.
Obviously, without these values, it was not possi-ble fer us -- or another party to the proceeding -- to pass an informed judgment on the correctness of the ultimate value whi ;h (based upon his use of the tree) Dr. Shaffer assigned in his testimony to the probability of a destructive over-speed.-5/
Because of the crucial importance of the testimony to the resolution of the turbine missile issue, when tha afternoon session commenced Dr. Shaffer was asked whether he could supply and justify the values that had been assigned to the tree components.
It turned out thar he did not have the values at hand.
Beyond that, we were told that they had been derived by Dr. Shaffer and his colleagues from data furnished by Westinghouse's Steam Turbine Division.
And, according to the applicant's counsel, those data were deemed by Westinghouse to be proprietary information.
See App. Tr. 339-47.
_4/
" Destructive overspeed" refers to the situation in which a nonflawed turbine blade breaks into pieces because of its rotation at an excessive rate of speed.
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_5/
That value was 1.7 x 10 per unit per year.
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Given our resultant inability to probe the foundation of Dr. Shaffer's conclusion respecting the probability of a destructive overspeed, we entertained considerable doubt that much weight could be attached to that conclusion.
Following some discussion of the matter, applicant's counsel sought and obtained the opportunity to consult with Westinghouse repre-sentatives.
Thereafter, he reported to us that Westinghouse would be willir-to provide under protective order "the basic data which Dr. Shaffer used * *
- in arriving at his ultimate probability calculations" (App. Tr. 570).
He further indicated that a draft of such an order would be submitted to us for our approval.
We now have before us the submission of Westinghouse itself.
Appearing specially for the purpose through its own counsel, that company has supplied a proposed protective order which it asks that we enter.
In substance, that order pro-vides that Westinghouse will transmit to the NRC staff and this soard copies of certain specified documents which are said to contain " proprietary information".
The documents are to be used for "the sole purpose of the review of the turbine missile issue in this proceeding".
No additional copies are to be made and their content is not to be disclosed "outside the United States Nuclear Regulatory Commission or to anyone cno 00+
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. within the Commission who is not taking an active part in the review of such' information".
Finally, "at the close of these proceedings, all copies of the subject Westinghouse proprietary information shall be returned" to Westinghouse.
See pp. 11-12, infra.
In support of its claim that the information in ques-tion is entitled to such treatment, Westinghouse tendered the affidavit of Dr. Shaffer to the effec'
- that informa-tion (1) was extracted from or based upon service records, experience or data customarily held in confidence under established procedures to protect confidentiality; ( 1) has not been previously disclosed by Westinghouse to any third party other than subject to "aporopriate proprietary protec-tion"; (3) is not available from any source apart from Westinghouse; and (4) could not be publicly disclosed without placing Westinghouse at a competitive di sadvantage.
Addi-tionally, Westinghouse tells us that none of the other parties to the proceeding has any objection to the entry of a protec-tive order, although counsel for intervenor Arnold does not concede the validity of the proprietary claim.
A.
Prior to turning to the question of the justification for entry of the protective order proposed by Westinghouse, we believe that a few observations are warranted with respect to the situation which confronted this Board at the hearing.
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r 3a u As has been seen, the applicant placed before us the testi-many of Dr. Shaffer on a pivotal element of the turbine missile issue.
That testimony contained, without detailing the basis for them, ultimate conclusions respecting the probabilities of turbine failure.
When we inquired into that basis, we were furnished a Westinghouse analytic report prepared by Dr. Shaffer (among others) several years ago.
That report, however, was wholly devoid of the underlying information necessary to enable us to evaluate Dr. Shaffer's conclusions and to make a reasoned judgment on the weight, if any, which we should attach to those conclusions in deciding this important safety matter.
Our endeavor to obtain that information from Dr. Shaffer was mec wit'-
wne response not merely that it was then unavailable to him but, additional.y, that his employer (Westinghouse) deemed it to be confidential and thus immune from disclosure (at least in'the absence of a protec.ive order).
It is difficult to comprehend what might have led the applicant to believe that this state of affairs would be thought acceptable by us.
Manifestly, it will not do for an expert witness to state his ultimata conclusions on a crucial aspecr of the issue being tried and then to profess an inability -- for whatever reason -- to provide the foundation 502 00L for them to the decision-maker as we.'.1 as the other litigants.
Indeed, a trier
>f fact would be derelict in the disc..arge of its responsibilities were it to rest significant findings on expressions of expert opinion not susceptible of being tested on examination of the witness.
A licensing board decision suffering from such a infirmity would be a fit candidate for reversal.
Where, as here, an appeal board has assumed ab initio the role of fact finder, there is no less an obliga-tion to insure that reason exists for confidence in the validity cf any testimony relied upon in detarmining those issues crucial to the outcome.
It follows that, absent access to the probability values utilized in Dr. Shaffer's fault tree (and the data from which they were derived), we would be compelled to attach virtually no weight to Dr. Shaffer's testimony insofar as it was nourished by the fruits of that tree.
Although it may be that now --
several weeks after the hearing concluded -- such access will be provided, the applicant would have found itself in a most awkward position had another of the parties to this proceeding evinced an interest in probing the basis for Dr. Shaffer's conclusions.
The inability of the witness to have provided that basis might well have necessitated the striking of por-tions of his testimony; at the very least, the h2aring would g
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have had to be adjourned to await the availability of the supporting information and to provide time thereafter for its digestion.
To avoid possible misunderstanding of the reach of the message sought to be conveyed, we do not suggest that a witness testifying to the results of an analysis must have at hand every piece of datum which was utilized in performing that analysis.
Obviously, any such requirement would impose an insuperable -- and unn'ecessary -- burden.
In this area, as in others, a rule of reason must be applied.
It is not un-reasonable, however, to insist that where, as here, the outcome on a clearly defined and substantial safety or environmental iscue may hinge upon the acceptance or rejection of an expert conclusion resting in turn upon a performed analysis, the witness make available (either in his prepared testimony or on the stand) sufficient information pertaining to.ne details of the analysis to permit the correctness of the conclusion to be evaluated.
We shall expect litigants and licensing boards alike to bear rhis in mind in the future.
B.
Moving on now to Westinghouse's claim ci entitlement to a protective order, it appears that Dr. Shaffer's affidavit was prepared with reference to our decision in [ansas Gas and Electric Company (Wolf Creek Nucle ar Generating Station, Unit No. 1), ALAB-327, 3 NRC 408, 416-18 (1976).-6/
We there held
_6/
See alro the later decision in the same case, ALAB-391, 5 NRC
',34, 755 (1977).
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_ 9-that one asserting such entitlement must demonstrate, inter alia, that the information in question is of a type customarily held in confidence by its originator; that there is a rational basis for having customarily so treated the information; and that the information i, in fact, been keep in confidence and is not to be found in public sources.
As previously nc.ed, the averments in the Shaffer affidavit touch upon each c. these points.
The difficulty with the affidavit is that it does not even attempt to explain the basis for Dr. Shaffer's knowledge on the essential matters as to which he has.: tested.
The affiant states merely that he is a " Consulting Mathematician" employed by Westinghouse, that he had been " authorized to execute this Affidavit" and that he had been supplied the " proprietary" data in confidence.
While all this may be true, it scarcel; stablishes the basis for his personal knowledge (if any) respecting the policies and practices of Westinghouse with regard to preserving the confidentiality of information said to be proprietary in nature.
Presumably those policies and practices are not formu-lated or (except perhaps secondazily) implemented by persons employed to perform mathematical analyses.
Nor have we been given any reason to suppose that one in Dr. Shaffer's position likely is equipped to offer an informed judgment regarding whether the public disclosure of ce: ".ain information would n
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3 or might " operate to Westinghouse's competitive disadvantage".
In a nutshell, for all that appears from his affidavit Dr. Shaffer was s aply recounting what he had been told by other officials or employees of the company who possessed personal -- as opposed to merely derivative -- knowledge on each of the matters encompassed by the affidavit.
Accordingly, we might well disregard the affidavit entirely on the ground that it was not shown to have been executed by a qualified individual.
Although, in situations such as this, it may not be necessary to have the chief executive of ficer of the company serve as the af fiant, there surely is ample warrant to require that facts pertainin'g to management policies and practices be presented by an official who is in a position to attest to thora policies and prac -ices (and the reasons for them) from personal knowledge.
Because no party has interposed an objection, we are nonetheless now granting the Westinghouse request for a pro-tective order in the interest of obtait ing the requested information without untoward further delay.
In doing so, however, we explicitly decline to find that Westinghouse has met its burden of showing that the information in question is proprietary in character and entitled to protection from public disclosure under the standards set forth in Wolf Creek, ALAB-327, n1n k
4 supra.
Nor should our action be taken as a precedent for future cases in which relief may be sought from an adjudica-tory board based upon an affidavit containing the deficienciet evident in the one now before us.
In accordance with the foregoing, Westinghouse is promptly to submit to thl; Board and the NRC staff copies of two one-page tables entitled, respectively, " Basic Event Service Ex-perience" and " Basic Event Probabilities".
The submission shall be subject to the following terms and conditions set forth in the second and third paragraphs of Westinghouse's proposed order:
The Board hereby grants the request for entry of a protective order ar.d orders and authorizes the use of the Westinghouse [assertedly] pro-prietary information described above for the sole purpose of the review of the turbine mis-sile issue in this proceeding.
Westinghouse shall submit three numbered copies of the aforementioned tables to the Appeal Board and two numbered copies to the NRC Scaff for re-view. -7/
No one shall be permitted to make copies of the aforementioned tables.
No dis-cicmure of the [assertedly] proprietary ini rmation described above shall be made outside the United States Nuclear Regulatory Commission or to anyone within the Commission who is not taking an active part in the review of such information.
_7/
Although the Westinghouse proposed order did not specify to whom the NRC staff copies should be submitted, we assume that the company had in mind staff counsel of record in the proceeding.
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At the close of these proceedings, all copies of the subject Westinghouse [cssertedly] proprietary information shall be returned by each narmd copy recipient to:
Westinghouse Electric Corporation Nuclear Energy Systems P.
O.
Box 355 Pittsburgh, Pennsylvania 15230 Attention:
T.
M.
Daugherty, Counsel It is so ORDERED.
FOR THE APPEAL BOARD b.
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C. Je g Bishop Secretary to the Appeal Board
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