ML19330A127
| ML19330A127 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/18/1971 |
| From: | Murphy A Atomic Safety and Licensing Board Panel |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8007150899 | |
| Download: ML19330A127 (10) | |
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o UNI'IED STATES OF AMERICA A'IOMIC ENERGY COMMISSION In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos.
50-329
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50-330 Midland Plant, Units 1 & 2 )
CERTIFICATION OF QUESTIONS 'IO THE APPEAL BOARD The questions hereafter certified arise from the request by Saginaw intervonors that they be permitted to use certain
" proprietary" reports of the Westinghouse Electric Corporation in connection with their examination of the iodine spray removal system of the proposed reactors.
The reports in question, WCAP-7153, 7198-L, and 7499-L have been furnished, subject to a protective order, to counsel for the Saginaw intervenors in the Point Beach Unit #2 proceeding (AEC Docket No. 50-301) where he is representing different persons.
The request to use the documents in this proceeding was first based on the claim'by Saginaw intervenors The protective order permitted counsel to show the documents to two persons assisting in the case, pr ovided that they agree to be bound by its provision.
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2 that the construction permit could not be granted unless the proposed reactors incorporated the " best available technology" and that, therefore, the Safety and Licensing Board (ASLB) must make a comparative evaluation of the Westinghouse iodine ' spray removal system and the Babcock &
Wilcox (B & W) system to be incorporated in the proposed reactors.
The ASLB rejected that contention holding that it need not inquire into whether the best available system is being sed but only into whether the proposed system meets the Commission's safety criteria.
(T. 2114)
Intervenors also claim they could not intelligently examine into the question of the adequacy of the B & W spray removal system unless they were free to use the reports in cross examination.
The ASLB, after reading the Westinghouse reports, the B & W reports, and various articles in the published literature, (see T. 2301) concluded that use of the Westinghouse reports was not necessary to such an examination.
- For present purposes, the significant difference between those systems can be taken as the difference in the reagent spray additives used.
The B & W system uses basic sodium l
l thiosulphate as an additive.
The Westinghouse system uses sodium hydroxide.
Intervenors do not challenge other aspects of the system.
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3 At that time, intervenors asked for an opportunity to persuade the ASLB in camera that intervenors needed the documents for their examination.
The ASLB agreed to listen to such an argument; however, counsel for Saginaw intervenors subsequently concluded that he could not adequately argue his case unless he could show th6 Westinghouse reports to a chemist. (Neither of the two technical assistants authorized to see the documants under the Point Beach protective order is a chemist.)
Westinghouse, however, refused to permit a broader disclosure than had been authorized under the original protective order.
The basis of the Westinghouse position was in part substantive -- that it did not know the person to whom counsel proposed to exhibit the material, and, therefore, could not be sure that the proprietary material might not be kept confidential.
In part, their refusal was based on procedural considerations -- that since the material had been produced in another proceeding under the protective order of a different ASLB the privilege might be lost by expanding the number of persons entitled to examine it beyond those specified in the original order, even if this ASLB were to enter a supplemental protective order.
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The procedural problem is complicated by the way in which intervenors' counsel acquired the documents.
Ordi-narily, documents of this nature could be acquired in one of two ways:
(1) by a subpoena to Westinghouse under the provisions of Section 2.720 of the Commission's regulations, 1
or (2) since the Commission has the documents in its pos-session, under the provisions of Section 2.744 of the regula-tions.
Althouga the methods of acquiring the documents are different, the ASLB is satisfied that the standards controlling the claim of privilege are those set out in Section 2.744, i.a.,
that where a claim of privilege is made, the persou seeking the documents must show need for and relevance of the documents.
There can be no serious question of relevance :in this case, but as noted above, the ASLB feels that cross examination is perfectly feasible without recourse to the claimed proprietary information, and, there-fore, that no need has been shown.
As noted in its oral order of June 25, 1971 (T. 2302),
the BSL& did not think it necessarry to examine deeply into the assertion by Westinghouse that the information contained in the report was in fact proprietary.
However, on the l
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5 basis of it's preliminary inquiry, the ASLB was satisfied that there was L sufficient basis for that assertion.
The information seems clearly to have been the product of Westinghouse's research and development, and Westinghouse's competitors would seem likely to reap at least some advantages from the disclosure of the material. In view of the state-ment by the Appeal Board in the Monticello proceeding that great weight should be accorded the view of the supplier o#
information that the data is propriotary, the ASLB felt that it was unnecessary to go farther into that question.
It should be stressed that the question in this case is not disclosure to intervenors or furnishing of information to the ASLB.
The information has been disclosed to intervenors' counsol and technical assistants (although they would like to expand the list to include at least one additional person);
the ASLB has already read the reports.
The question here is only whether it is necessary to effective cross examination for intervenors to be able to use the reports.
Nor is there, unfortunately,.any easy way in which cross examination could l
be conducted without danger to the confidentiality of the information.
Applicant is completely dependent upon the assistance of B & W for defending the iodine spray removal system, so that the use of the reports on cross examination would immediately result in the disclosure of the information to Westinghouse's competitors.
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G If this were an isolated case, the ASLB would be satisfied to let its decision on this question stand; how-ever, the underlying questions are certain to arise in other cases and with respect to other subjects in this case.
Accordingly, the ASLB has agreed to certify the questions to the Appeal Zoard.
In doing so, the ASLB recognizes that a number of these questions may be premature but hopes that even if so, the formulation of the questions may be useful to the Appeal Board in its consideration of the subjects when, as, and if they are properly raised:
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 Commission's safety requirements.
2.
lias the ASLB acting within its discretion in concluding, on the basis of its own examina-tion of the proprietary reports, and the available literature, that the reports were unnecessary to the desired cross examination.
3.
Must the ASLB,*despite its conclusion that no need is shown for the documents, nevertheless
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7 inquire into the basis for the assertion that the information is propriotary, where 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 type generally kept confidential in the industry.
4.
Are the standards for determining whether information is, in fact, proprietary, and whether proprietary information should be disclosed, the same whether the information is sought by subpoena under Section 2.720 of the Commission's regulations or under Section 2.744.
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 ASLB's conclusion on an examination of the reports and the ava-lable literature that there was no need for such disclosure.
In order for the Appeal Board to consider the question, the ASLB is prepared to seal and deliver to the Appeal Board the Westinghouse reports referred to earlier.
However, it is
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8 the understanding of the ASLB that these documents are available to the Appeal Board from the Regulatory Staff and will be furnished by the Regulatory Staff upon request by the Appeals Board.
FOR THE ATOMIC S AFETY AND LICENSING BOARD k
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r ARTHUR W. MURPHY, CH[IB/[N August 18, 1971 i
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i g{ t UNITED STATES OF AMERICA
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In the Matter of
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CONSWERS POWER COMPANY
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Docket No. 50-329, 330 (Midland Plant, Units 1 and 2)
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, 48i CERTIFICATE OF SERVICE A
I hereby certify that copies of the Board's CERTIFICATION OF QUESTIONS TO THE APPEAL BOARD dated August 18,19'T1 in the captioned matter have been served on the following by deposit with the United States Postal Service, first class or air mail, this 18th day of August 1971:
Arthur W. Murphy, Esq., Chairman Richaid G. Smith, Esq.
Atomic Safety and Licensing Board Smith & Brooker, P. C.
Columbia University School of IAv 703 Washington Avenue 435 West 116th Street, Box 38 New York, New York 10027 Bay City, Michigan 48706 Dr. CIArk Goodman Harold P. Graves, Esq., Vice Professor of Physics President and General Counsel University of Houston John K. Restrick, Esq.
3801 Cullen Boulevard Consumers Power Company 212 West Michigan Avenue Houston, Texas 77004 Jackson, Michigan 49201 Dr. David B. Hall Mr. R. C. Youngdahl Los Alamos Scientific Laboratory Senior Vice President P. O. Box 1663 Los Alamos, New Mexico 87544 Consumers Power Company 212 West Michigan Avenue Dr. Stuart G. Forbes Jackson, Michigan 49201 100 Tennessee Avenue, Apt. 37 Honorable Frank Olds, Chairman Redlands, California 92373 Midland County Board of Supervisors Thomas F. Engelhardt, Esq.
623 St. Charles Street David E. Kartalia, Esq.
Regulatory Staff Counsel Midland, Michigan 48640 U. S. Atomic Energy Commission Honorable Jerome Maslovski Washington, D. C. 20545 Assistant Attorney General State of Michigan Robert Iowenstein, Esq.
Jerome E. Shartman, Esq.
Seven Story Office Building 525 West Ottava Iowenstein and Newman 1100 Connecticut Avenue Iansing, Michigan 48913 Washington, D. C. 20036, N. W.
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50-329, 330 t'
page 2 Honorable Curtis G. Beck Milton R. Wessel_, Esq.
Assistant Attorney General Allen Kezcbom, Esq.
State of Michigan Seven Story Office Building Kaye, Scholer, Fierman, Haya and Handler 525 West Ottava 425 Park Avenue Lansing, Michigan 48913 New York, New York 10022 Myron M. Cherry, Esq.
William A. Groening, Jr., Esq.
109 North Dearborn Street Suite 1005' James N. O 'Connor, Eng.
Chicago, Illinois 60602 The Dow Chemical Company 2030 Dow Center Midland, Michigan 48640 Anthony Z. Roisman, Esq.
Berlin, Roisman & Kessler 1910 N Street, N. W.
Irving Like, Esq.
Washington, D. C. 20036 Reilly, Like and Schneider 200 West Main Street James A. Kendall, Esq.
Currie and Kendall 135 North Saginav Road Midlard Michigan 48640 Dr. Wayne E. North, Chairman Midland Nuclear Power Committee William J. Ginster, Esq.
P. O. Box 335 Midland, Michigan 48640 Merrill Building, Suite 4 Saginav, Michigan 48602 Mr. Wendell H. Marshall RFD No. 10, Mapleton Midland, Michigan 48640 gi
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Office of the Secretary of the Commission cc: Mr. Murphy Mr. Engelhardt Mr. Wells N. Brown
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