ML19329F438
| ML19329F438 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 12/16/1971 |
| From: | Kartalia D US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006270478 | |
| Download: ML19329F438 (4) | |
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TslS DOCUMENT CONTAlh3 P00R 00AUTY PAGES UNITED STATES OF AMERICA
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ATOMIC ENERGY COM4ISSION p,, _3 3,f BEFORE THE ATOMIC SAFETY AND LICENSING BOARD n,, y 3
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In the tter of
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CONSUMERS POWER COMPANY.
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/Vjpl.
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Docket Nos. 50-329
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50-330
.( *idland Plant, Units 1 and 2)
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ANSWER OF AEC REGULATORY STAFF TO WESTINGHOUSE MOTION TO QUASH SUBPOENA 4'
On December 6,1971, Westinghouse Electric Corporation (Westinghouse) served a motion to quash the oral subpoena issued by the presiding Atomic Safety and Licensing Board (Board) on November 23,1971, which subpoena directed Westinghouse to produce three allegedly proprietary reports. Westinghouse claims these reports to be proprietary.
Inte r-venors Saginaw Valley Nuclear Study Group et al. (Saginaw Valley inter-venors), have been seeking access to the reports since June 1971.
Westinghouse's response to the subpoena does not provide the detailed justification for its claim that the reports are proprietary which would at this stage best contribute to the expeditious resolution of this matter. The Westinghouse motion to quash sets forth in general terms the assertions of fact and law on which Westinghouse relies. With respect to the proprietary issue, Westinghouse merely reiterates the vicas it communicated to the Board in two previous letters. j s
As regards the factual issues in this dispute, we believe that the Board-should hold an in, camera evidentiary hearing in the'near future,
- / Letters of Robert A. Wiesemann dated June 18 and November 18, 1971, respectively.
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.'2-to be ' attended by the Board and representatives of Westinghouse, the staff and th'e Saginaw.V' alley intervenors. The participation of the Saginaw Valley intervenors should be in accordance with the terms of an appropriate protective ordar entered, if possible, by stipulation of Westinghouse and the Saginaw Valley intervenors.
In the absence of such a 3tipulation,' the Board should enter an order which will pro-tect the legitimate interests of Westinghouse while permitting the Saginaw Valley intervenors to aid the Board in its deliberations.
With respect to the legal issues raised by Westinghouse, we offer the following comments, each keyed to the paragraph, or paragraphs,
~ f the Westinghouse motion, to which it relates:
o (1)(b) We agree that the Board's subpoena should not be enforced if the Westinghouse reports are sought solely for use in a comparison of the Babcock and Wilcox and Westinghouse iodine spray removal technologies. The Atomic Safety and Licensing Appeal Board (Appeal. Board), in its Memorandun of September 21, 1971, ruled that if the applicant satisfies the Board that'its system will meet AEC reactor licensing requirements, the Board need not consider the merits of some other system.
I However, as we understand the position of the Saginaw Valley intervenors, the reports are not sought solely for the purpose of comparative analysis.
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a 3-i (1)(d) We are at a loss to respond to the unexplained Westinghouse
. assertion,that the reports are not " evidence" within the meaning of 10 CFR i 2 720 and therefore not subject to subpcena.
- (l)(f) We do not agree that the Westinghouse reports are exempt from disclosure in the sense that the Board would be without power to order production of the reports in the event they are shown to be proprietary. As the Appeal Board stated in its memorandum of September 21, 1971, this Licensing Board "should weigh the detrimental effects of disclosure against the demonstrated need for production."
(2)(a) We do not agree that the absence of a showing of "need" for the reports by the Saginaw Valley. intervenors makes unnecessary any inquiry into the issue of whether the re-ports are proprietary, in light of.the Appeal Board's memor-andum of September 21, 1971. That memorandum makes clear that.the question of need is not the threshold inquiry.
' The Board may, however, quash the subpoena, without inquiry
.l into the proprietary issue, if it finds, in accordance with 10 CFR 2.h20(f), that the reports are not relevant
.to any issue in the proceeding.
-(2)(b) See our corm:ents on paragraph (1)(b).
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. '(2)(d), (3) See our comments on paragraph (1)(f). With respect.'to paragraph -(2)(d), we note additionally that the fact that the reports may contain " opinions, evaluations, analyses, recomendations and advice" is immaterial; no claim of govern-j trental privilege is before the Board.
(4)
We do not agree that this dispute m'ust be resolved by the Board with no participation by the Saginaw Valley intervenors.
See our contrents at page 1 above regarding i_n, camera proceedings.
n (5)
As we understand the discussions on the record at the tiovember 23, 1971. conference, Westinghouse has already consented to accept an oral subpoena-in lieu of a written subpoena and has thus waived'whatever technical objections it might have had with respect to the issuance, form or service of the subpoena.
See parti _cularly, Tr. 5031 and 5036.
Respectfully submitted, l'(
(d, { lb David D. Kartalia Counsel for AEC Regulatory Staff
. Dated at Bethesda, Maryland, this 16th day of December,1971.
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