ML19329F633
| ML19329F633 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/21/1971 |
| From: | Woodard W NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 8007070405 | |
| Download: ML19329F633 (12) | |
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UNITED STATES OF AMERICA ATOMIC ENERG7 COMMISSION di D
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ATOMIC SAPETY AND LICENSING APPEAL BOARD:
o D0CKHED Algie A. Wells, Chairman g.
Dr. John M. Buck SEP211971
- t-Dr. Laurence R. Quarles em.e st tai terwy 3
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/h3 IN Tile MATTER OF
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DOCKET NOS. 50-329 CONSUMERS POWER CONPANY 50-330 (Hidland Plant, Units 1 and 2)
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THIS DOCUMENT CONTAINS POOR QUALITY PAGES MEMORANDUM On August 18, 1971, the Atomic Safety and Licensing Board in this 1_/
proceeding certified five questions for Appeal Board determination" 2_/
The questions arise from the request of the "Saginau intervenors" that they be permitted to use certain " proprietary" reports of the Westinghouse Electric Corporation in connection with their examination of the iodine spray recoval system of the proposed reactors. The system which the applicants have proposed to use for the Midland reactors is a product of the Babcock & Wilcox Co.
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This proceeding involves the application of Consumers Power Co.,
Inc., for a construction permit for Units 1 and 2 of a nuclear generating plant to be located at Midland, Michigan.
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Saginaw Valley Nuclear Study Group, Citizens Connittee for the Environnental Protection of Michigan, Sierra Club, United Auto Workers of America, Trout Unlimited, Vest Michigan Environmental Action Council, Inc., and, University of Michigan Environmental Law Society.
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Intervenors seek to use the Westinghouse reports, to which their 1/
j counsel acquired access, under protective order, in a licensing pro-ceeding involving another plant, to show that the spray removal system proposed for the Midland Plant is not the "best available" system.
The Licensing Board in this proceeding rejected the intervenors' request for permission to use the Westinghouse reports.
The Licensing Board also held that it need not inquire into whether the best available system is being used, but only into whether the proposed system meets the Commission's safety criteria.
COMMENTS ON CERTIFIED OUESTIONS 1.
Was the ASLB correct in its conclusion that the applicant is not required to establish that its proposed reactors incorporate the "best available technology", but only that its system satisfy the Ccamission's safety recuirements?
i As the Licensing Board explains in its certification, this question arises from the intervenors' contention that th'e construction permit for the Midland plant cannot be granted unless the proposed reactor incorporates the "best available technology". Uhile this was a general contention, intervenors made specific reference to the iodine spray removal system as designed by Babcock and Wilcox and another system designed for other reactors by Westinghouse.
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The protective order permitted counsel to show the documents to two persons assisting in the case, provided that they agree to be bound by its provision.
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< The record of this proceeding shows no artempt by anyone to define "best availabic technology"; and, in our opinien, the efficacy of any subsystem cannot be determined by an examination of its technology alone but must be evaluated in terms of its interplay uith other components and subsystems, There may be many engineering choices in the selection of specific items for a subsystem but the final design must be an optimization of these choices to produce a subsystem which will interact with the larger system in such a manner that the s,2 system and the complete system meet the relevant AEC licensing requirements.
Individual designs using inter-play of many technologies can reach the same final results using vastly different components and subsystems. Thus, especially for such a highly complex plant as a reactor, the ' test technology" for a subsystem,can only be determined in relation to other subsystems and the plcnt in its entirety.
Principally for this reason, the Commission has used general design 5
criteria as the basis for its licensing requirements, 1 caving to the
. applicants the details of design.
With regard to the Midland reactor, the Licensing Board cust be satisfied that the proposed spray system uill operate, within the overall complex of the reactor plant, to obtain the iodine reduction necessary to meet AEC reactor licensing requirements.
If the applicant sustains its. burden of' proof in this regard, it will have satisfied those requirements and it will be unnecessary to consider the spray system of another reactor as proposed by intervenor.
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Was the ASLB acting within its discretion in concluding, i
on' the basis of its own examination of the proprietary reports, and the available literature, that the reports were unnecessarv to the desired cross-examination?
I In describing the background to the questions certified to this l
l Appeal Board, the Licensing Board interpreted the Commission's Rules of l
Practice, 10 CFR Part 2, as providing two ways by which the documents in question could be sought:
(1) by a subpoena to Westinghouse under the provisions of Section 2.720 or (2) since the Commission has the documents l
in its possession, under the provisions of Section 2.744, " Production of AEC records and documents." Stating that the two methods of acquiring the documents vere different, the Licensing Board indicated that it was -
"sntisfied that the standards controlling the claim of privilege are s
those set out in Section 2.744, i.e., that uhere a claim of privilege is made, the person seeking the documents must show need for and relevance of the documents". The Licensing Board continued:
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"It should be stressed that the question in this case is not i
disclosure to intervenors or furnishing of information to the ASLB. The information has been disclosed to intervenors' counsel and technical assistants (although they would like to expand the list to inclu,de at least cne additional person);
the ASLB has already read the reports. The question here is j
only uhether it is necessary to effective cross examination i
for intervenors to be able to use the reports."
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. In the circumstanccs which underlie the certified question, we 1
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think that the matter of disclosure, and that of production of documents cannot be divorced from cach other, as both matters intertwine. Although it is true, as stated by the Licensing Board, that the pertinent informa-tion was already disclosed to intervenors' counsel and technical assistants, that disclosure uns made under a protective order issued by a Licensing Board in another, unrelated, licensing proceeding.
Its authorized use did not entend to disclosure of the information to others, nor for purposes outside of that proceeding. Accordingly, insofar as the instant proceeding is concerned, sbsent the consent of Westinghouse, use of the information by intervenors required issuance of an order by this Licensing Ecord for production of the reports.
Thus, we view this certified question 'cs relating to a request for production of the proprietary reports for the purpose of cross-examination; and we answer it in that context.
The Commission's Rules of Practice, 10 CFR Part 2, include three separate sections pertaining to the production of documents in connection 1
with a liccusing proceeding, Section 2.720 (subpoenas), Section 2.741 (discovery and production of documents), and Section 2.744 (production of AEC records and docu=ents).
In adopting three separate sections to cover this subject, we believe that the Commission did not intend to establish duplicative procedures for dealing with the same documents.
We believe, instead, that the Commission contemplated a plan in which each section would establish a procedure to govern the production of documents depending or; the circumstances involved -- Section 2.720 to apply to records in the
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possessicn of persons who are not parties to the proceeding; Section 5/
2.741 to records of parties other than the regulatory staff; and Section 2.744 to records of the regulatory staff. This view of the effect of the three sections, in our opinion, accords to the parties in the licensing proceeding n reasonable and orderly procedure for seeking documents in connection with the proceeding.
In this case, where documents are in the possession of the Commission, as well as in the possession of a person who is not a party to the pro-ceeding, both Section 2.720 and Section 2.744 are available, as the Licensing Board states, to a party seeking the documents.
The governing section depends, of course, on whether the documents are being sought from the Commission or from another source.
In this ence,.during the hearing in this proceeding, intervenors moved the regulstory staff to produce the "Uestinghouse proprietary reports i
dealing with the iodine removal spray system" (Tr., June 21, 1971, pp. 1549-1551). The provisions of Section 2.744 would thus govern the request made.
Under Section 2.744, to qualify for access to records containing proprietary j
information, a person must show, not only relevance, but also need for the document in connection with the adjudicatory proceeding.
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Section 2.720(h) states in this regard that the subpoena procedure of Section 2.720 is not applicable to the production of records or documents in the custody of AEC personnel.
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Section 2.741(d) states: "The provisions of this section are not applicable to the production for' inspection and copying or photo-graphing of AEC records and documents. Motions for production of such records or documents are subject to the provisions of $2.744."
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. its own examination of the proprietary reports and the avail'able literature, the Licensing Board found that cross-examination was feasible without recourse to the claimed proprietary information; and, therefore, that no need had been shown. We conclude that, in the present circumstances, this action was within the discretionary authority of the Licensing Board.
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Must the ASLB, despite its conclusion that no need is shown for the documents, nevertheless inquire into the basis for the assertion that the information is proprietary,shere the information has been furnished to the Commission as proprietary, where it is based on the results of research and development, and is of a tyne ccnnrally kent confidential. in the industry?
As noted in the answer to Question 2, it is our opinion that Section 2.744 is the appropriate rule for disposition of intervenors' request.
Section 2.744, as a general rule, requires that relevant AEC records and documents be produced upon request. This general requirement for disclosure, however, does not apply to documents falling with the purview of 10 CFR Section 2.744(b) and (c).
These documents are required to be '
produced only in accordance with the procedures specified in Section 2.744 (b), (d) and (e), as applicable.
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Information :hich is proprietary falls under Section 2.744(b) or (c) and is required to be produced only upon a showing, by the proponent, of relevancy and need, and then only if its production would not be contrary to the public interest and would not adversely affect the rights of any person. Of course, Section 2.744(b) or (c) applies only if the information
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is, in fact, what it is purported to be; i.e., proprietary.
Whether the information is, in fact, proprietary is initially for the Licenoing Bocrd to decide, based on all relevant factors available.
The Licensing Board has broad discretion in how it should arrive at the appropriate decision.
In the circumstances of this case the Licensing Board deter =ined, on the basis of the factors enumerated in the question, that the reports s:cre proprietary end that no need has been shown for them.
We conclude it is within the discretion of the Licensing Board to declina further inquiry into the proprietary nature of the reports.
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- Are the standards for determining whether information is, in fact, proprietary, and whether proprietary information should be disclosed, the same whether the information is
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sought by subpoena under Section 2.720 of the Commission's i
regulations or under Section 2.7447 Generally speaking, we perceive of no reason why the standards for determining whether information is proprietary should be different depending upon whether Section 2.720 or Section 2.744 is utilized for production of b
the information. The first objective under either section is to obtain r'easonabic assurance that the information is, in fact, proprietary es
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. asserted. Similarly, as to whether proprietary information should be disclosed, we see no reason which dictates that different standards are to be applied.
In either case, in considering a request for production of proprietary information, the Licensing Board should neigh the detri-mental effects of disclosure against the demonstrated need for production.
5.
Was the ASLB acting within its discretion in not granting permission to the intervenors to show the reports to a named chemist in order to assist intervenors' counsel to demonstrate the need for the information, in view of the ASLD's conclusion on an examination of the reports and the available literature that there uns no neeJ for such disclosure?
Censonant with our views under Question 2, we consider intervonors' request for permission to go beyond the protective order under which their counsel and specified ascistants ucre permitted access to the Westinghouse reports as tantamount to a request for production under Section 2.744.
The Licensing Board indicated satisfaction, on the basis of its
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examination of the reports and available literature, that the information requested was, in fact, proprietary and that there was no need for dis-closure to intervonors.
In face of this conclusion, it does not appear that access to the information in question would have served any useful t
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. purpose and might have acted to the detriment of the owner of the propri-etary.information.
In the circumstances of this case, we are of the view that the Licensing Board's refusal to permit disclosure of the document to a named chemist for the purpose of assisting intervenors' counsel to demonstrate the need for such disclosure was within the Licensing Board's discretion.
ATOMIC SAFETY AND LICENSING APPEAL BOARD BY
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William E. Uoodard Assistant Executive Secretary Dated:
Sept. 21, 1971 i
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UNITED STATES OF AVERICA ATOMIC ENERGY C0!GtISSION In the Matter of
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CONSUMERS POWER COMPANY
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Docket No. 50-329, 330 (Midland Plant, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of the MD40RANDUM issued by the Appeal Board dated September 21, 1971 following by deposit in' the United States mail, first class or air this 21st day of September 1971:
Arthur W. Murphy, Esq., Chairman Atomic Safety and Licensing Board Richard G. Smith, Esq.
Columbia University School of Law Smith & Brooker, P. C.
Box 38 703 Washington Avenue 4 5 West 116th Street Bay City, Michigan 48706 3
New York, New York 10027 Harold P. Graves, Esq.
Dr. Clark Goodman Vice President and General Profeccor of Physics Counsel University of Houston John K. Restrick, Esq.
3801 Cullen Boulevard Consumers Power Company Houston, Texas 77004 212 West Michigan Avenue Jackson, Michigan 49201 Dr. David B. Hall Los Alamos Scientific Laboratory Mr. R. C. Youngdahl Senior Vice President P. O. Box 1663 Consumers Power Company Los Alamos, New Mexico 87544 212 West Michigan Avenue Dr. Stuart G. Forbes Jackson, Michigan 49201 100 Tennessee Avenue, Apt. 37 Redlands, California 92373 Honorable Frank Olds, Chairman Midland County Board of Supervisors Thomas F. Engelhardt, Esq.
David E. Kartalia, Esq.
623 St. Charles Street Regulatory Staff Counsel Midland, Michigan 48640 U. S. Atomic Energy Commission Washington, D. C. 20545 Honorable Jerome Maslovski Assistant Attorney General Robert Lovenstein, Esq.
State of Michigan Jerome E. Shartman, Esq.
Seven Story Office Building Lovenstein and Newman 525 West Ottava 1100 Connecticut Avenue Lansing, Michigan h8913 Washington, D. C. 20036, N. W.
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page 2 50-329, 330 Honorable Curtis G. Beck J. Richard Sinclair, Esq.
Assistant Attorney General Milton R. Wessel, Esq.
State of Michigan Allen Kezsbom, Esq.
Seven Story Office Building Kaye, Scholer, Fierman, Hays and Handler 525 West Ottava Lansing, Michigan 48913 425 Park Avenue New York, New York 10022 Myron M. Cherry, Esq.
109 North Dearborn Street William A. Groening, Jr., Esq.
Suite 1005 James N. O'Connor, Esq.
Chicago, Illinois 60602 The Dov Chemical Company 2030 Dov Center Anthony Z. Roisman, Esq.
Midland, Michigan 48640 Berlin, Roisman & Kessler 1910 N Street, N. W.
Winiam J. Ginster, Esq.
Washington, D. C. 20036 Merrill Building, Suite 4 Saginaw, Michigan 48602 James A. Kendall, Esq.
Currie and Kendall Mr. Wendell H. Marshall 135 North Saginav Road RFD No. 10, Mapleton Midland, Michigan 48640 Midland, Michigan 48640 Dr. Wayne E. North, Chairman Irving Like, Esq.
Midland Nuclear Power Comittee Reilly, Like and Schneider P. O. Box 335 200 West Main Street Midland, Michigan 48640 Babylon, New York 11702 b C r czz / h fL re
.LJ Office of the Secretary of th omission
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ec: Mr. Murphy Mr. Engelhardt Mr. Wells H. Brown H. Smith 1
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