ML19330A135
| ML19330A135 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 12/07/1971 |
| From: | Cowan B, Seamans E, David Williams ECKERT, SEAMANS, CHERIN & MELLOTT, WESTINGHOUSE ELECTRIC COMPANY, DIV OF CBS CORP. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19330A131 | List: |
| References | |
| NUDOCS 8007150905 | |
| Download: ML19330A135 (11) | |
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.p BEFORE THE UNITED STATES ATOMIC ENERGY COMMISSION.
In the Matter of
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Docket Nos. 50-329 CONSUMERS POWER COMPANY
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50-330 Midland Plant, Units 1 and 2
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MOTION TO QUASH SUBPOENA Now comes Westinghouse Electric Corporation, a Pennsylvania corporation,
(" Westinghouse") and hereby moves to quash an oral subpoena issued by the presiding officer o'f the Atomic Safety and Licensing Board (the " Board") in the above, captioned proceedings (the " Midland proceedings")
requesting the production of the following. Westinghouse reports (the " reports") :
(1)
WCAP 7153-L " Investigation of Chemical Additives For Reactor Containment Sprays" (2)
WCAP 7198-L " Evaluation of Pro-tective Coatings For Use in Reactor Containment" (3)
WCAP 7499-L " Topical Rep': " --
Elemental Iodine Remov. F1 Reactive Sprays" I.-
The basis for this Motion to Q ash S'.ir.ocna are, inter alia, as follows:
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(1) said subpoena is both unreasonable and requires evidence not relevant to any matter properly in issue in the Midland proceedings, contrary to the provisions of the Rules of Practice of the Atomic Energy Commission governing such proceedings, (including, but not limited to, 52.720 of said Rules of Practice [10 CFR S2.720]) in each of the following respects, among others:
(a) the purposes for which the reports are intended to be used and the need and rele-vance of the reports for such purposes, have not been properly or adequately identified to the Boar 6 by the parties making application for uaid subpoena; (b) to the limited extent the intervenors, as the parties making application for said subpoena, have indicate. an intent to use the reports for the purpose of comparing the technology of the Babcock and Wilcox Company, vendor to Consumers Power Company whose design is under considera-tion in the Midland proceedings, with the tech-nology of Westinghouse, which has no respon- ~
sibility or relationship with or to the plant under consideration, in order to determine the "best available technology," such intended use is both unreasonable.and not relevant to the Midland pro-ceedings (See Memorandum, September 21, 1971, Atomic Safety and Licensing Appeal Board, In the Matter of Consumers Power Company (Midland Plant, Units 1 and 2), Docket Nos. 50-329, 50-330);
(c) to the limited extent the intervenors have indicated an intent to use the reports to assist in their examination of the adequacy of the Babcock and Wilcox Company design, including assistance in the l
preparation of and conduct of cross-examination of witnesses of the Applicant in the Midland proceedings, j
such intended use is unreasonable and unnecessary, and further no need for the production of the reports, all of which are proprietary to Westinghouse, has been demonstrated, since publicl~y available informa-tion, and consultants available to intervenors, can provide sufficient information to assist in the conduct of any such examination; m
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(di the reports and their contents do not constitute evidence within the meaning of 52.720 of the Rules of Practice of the Atomic Energy Commission, and hence the re-ports are not properly subject to subpoena; (e) requiring the production of the reports by Westinghouse constitutes an un-reasonable burden on Westinghouse when taken in the context of creating a precedent for the production of similar Westinghouse re.-
ports in this and other similar hearings and requiring a person not otherwise involved in any manner to appear and defend in each of many proceedings its tight to maintain as privileged, confidential or proprietary in-fcrmation and trade secrets contained in such reports; (f) said reports contain information which is privileged, confidential and of a nature proprietary to Westinghouse involving trade secrets or other commercially valuable
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informaticn, and therefore are exempt from pro-duction under applicable law and the Rules of Practice of the Atomic Energy Commission.
(2) the reports requested to be produced are exempt from production and public disclosure pursuant to applicable law and the Rules of Practice of the Atomic Energy Commission, (including, but not limited to, the requirements and standards set forth' in Section 2.744 of said rules [10 CFR S2.744] as said standards are applicable to S2.720) in the following respects, among others:
(a) the reports are not required to be produced absent a requisite showing of both relevance and need by the party requesting the production thereof, irrespective of whether said reports are assumed to be pro-prietary, and such requisite showing of both relevance and need has not been made with respect to the production of the reports; (b) any intended use of the reports for the purpose of comparing the technology of two vendors utilizing different systems -
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in order to determine the "best available technology" is irrelevant to any issue properly before the Board in the Midland proceedings; (c) any intended use of the reports of one vendor to assist in examination of the adequacy of the design of another vendor, including assistance in prepara-tion and conduct of cross-examination of such other vendor, is unreasonable and unnecessary since publicly available in-formation, and consultants available to intervenors, can provide sufficient in-formation to assist in the conduct of any such examination; (d) the reports are exempt from production and disclosure because they 1
contain:
(1) information of a nature proprietary to Westinghouse, (2) opinions, evaluations, analyses, recommendations and advice, (3) information given in con-4.
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fidence to the Atomic Energy Commission and (4) data and information privileged under 59.5 of the public records regulations of the Atomic Energy Commission (10 CFR 59.5) as set forth in para-graph 3 below.
(3) the reports requested to be produced are exempt from production and public disclosure pursuant to applicable law and the public records regulations of the Atomic Energy Commission (including, but not limited to, the provisions of 59.5 of said rules [10 CFR 59.5] as said provisions are applicable to S2.720), in that the reports contain trade secrets and commercial information-which is privileged or confidential, said information being that which is customarily held in confidence by Westinghouse, i
including, but not limited to, bnformation which constitutes data proprietary to Westinghouse.
(4) the subpoena and the procedures utilized in connection therewith are defective in that they do not strictly Ibnit to an jgt camera proceeding a consideration of the reports only by the Board, with such consideration
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i to be limited solely to a determination of reasonableness, i
relevancy, need and, it appropriate, the privileged, con-fidential and proprietary nature of the reports.
4 (5)- such other good and sufficient reasons
-at law or in equity as may appear proper to this Board.
Westinghouse expressly reserves the right to raise any and all matters relating to the sufficiency of the pro-cedure used in the issuance and service of subpoena involved herein, including, but not limited to, questions of adherence to the. requirements of $2.720 of the Rules i
of Practice of the Atomic Energy Commission, [10 CFR S2.720], that-such subpoena (a) be issued only upon the I.
application 62 a party (b) be in writing (c) advise the person to whom it is directed of the procedures to quash said subpoena (d) bear the name of the commission, the name and office of the issuing officer, the title of the hearing and command the production of specific documents at a designated time and place and (e) be properly served and proof of proper service filed accordingly.
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Respectfully submitted
/s/ Barton Z. Cowan Barton Z. Cowan
/s/ Dale E. Williams Dale E. Williams
/s/ Eckert, Seamans, Cherin & Mellott Eckert, Seamans, Cherin & Mellott 10th Floor, Porter Building Pittsburgh, Pennsylvania 15219 Attorneys for Westinghouse Electric Corporation Of Counsel:
l Alfred W. Vadnais, Esq.
Westinghouse Electric Corporation Law Department - 17th Floor Westinghouse Building Gateway 6 Pittsburgh, Pennsylvania 15230 Date Filed:
December 7, 1971 l
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COMMONWEALTH OF PENNSYLVANIA
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COUNTY OF ALLEGHENY
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Before me, the undersigned authority, personally appeared Robert A. Wiesemann, who being by me first duly sworn according co law, deposes and says that he is Manager, Special Licensing Projects for the Pressurized L'ater Reactor Systems Division, Westinghouse Nuclear Energy Systems, Westinghouse Power Systems Company, Westinghouse Electric Corporation; that he is authorized to and does make this affidavit in its behalf and that the facts contained in the foregoing Motion to Quash Subpoena are true and correct
-to the best of his knowledge, information and belief.
/s/ Robert A. Wiesemann Sworn to and subscribed before me this 6th day of December, 1971.
/s/ Evelyn Buechel Notary Public
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In the Matter of
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Docket Nos. 50-329 CONSUMERS PONER COMPAhT
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50-330 Midland Plant, Units 1 and 2
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p 3 g E_ 3 AND NON, to-wit, this day of the undersigned Chairman of the Atomic Safety and Licensing Board in the above captioned proceeding here-by grants the foregoing motion of Westinghouse Electric Corporation with respect to quashing the subpoena refer-ence therein and it is hereby ordered, adjudged and decreed that said subpoena directed to Westinghouse Electric Corpora-tion be quashed with respect to each and all the following documents:
(1)
WCAP 7153-L " Investigation of Chemical Additives for Reactor Containment Sprays" (2)
WCAP 7198-L " Evaluation of Pro-tective Coatings For Use in Reactor Containment" (3)
WCAP 7499-L " Topical Report -
Elemental Iodine Removal By Reactor Sprays" Chairman
. Atomic Safety and Licensing Board
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