ML19330A138
| ML19330A138 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 10/07/1977 |
| From: | Coufal F Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8007150908 | |
| Download: ML19330A138 (8) | |
Text
.
1 j(
tl19#
g es e
Oq,11r,' '=
e s
~
UNITED STATES OF AMERICA 4
NUCLEAR REGULATORY COMMISSION g
O l
In the Matter of
)
%ye
)
CONSUMERS POWER COMPANY
)
Docket Nos. 50-329
)
50-330 (Midland Plant, Units 1 and 2)
)
ORDER
/0/7[77 By a previous order we invited the parties to point out any rulings on discovery matters which are presently pending.
l The only response to the request was from the Licensee in a filing dated February 29, 1977.
In that response two items were mentioned.
The first matter drawn to our attention by the Licensee's filing is a request made to Dow dated January 18, 1977 by the Licensee.
Dow'_a objection to the request was that it was bur-densome and covered documents that were irrelevant to the pro-ceeding.
In the Licensee's filing dated February 29, 1977, there was a narrowing of the request and Dow has agreed to furnish the documents now requested by Licensee except those which may be privileged.
The second discovery matter set out by the Licensee involves certain documents transmitted to the Board by Licensee in letters dated February 22, 1977, and March 14, 1977.
The request for the documents was made to Licensee W(
@N O
. go onso
. by Intervenors other than Dow.
The request is resisted because it is claimed that the documents are proprietary and should be released only under a protective order.
One of the documents is a computer code referred to as 9
the Licensee's NM" code.
The basis for the claim that the code should be protected is set out in the affidavit of Charles E. Bayless subscribed on February 18, 1977.
It is there alleged that the code was developed by Consumers to be used for the prediction of the cost and schedules by year and batch of each of the components of the nuclear fuel cycle.
Consumers feels the code is salable and is actively engaged, through an agent, in selling it.
4 2
We find that the claim that NM is proprietary is sup-ported by the affidavit.
We base this on the considerations set out in the Wolf Creek case.1I The Appeal Board there held that an item in question is entitled to protection as proprietarywhenithasbeendemonstrgtedthat (1) the infor-mation is of a type customarily held in confidence by its originator; (2) there is a rational basis for the custom;
.l_/
In the Matter of Kansas Gas and Electric Company, Kansas City Power and Light Company (Wolf Creek Nuclear Generating Station Unit No. 1) Docket No. STN 50-482, ALAB-327, 3 NRC at416-dl7.
f l
I
. (3) the information has been kept in confidence; and (4) it is not found in public sources.
The Licensec's code as described fulfills the four requirements.
The other items claimed to be proprietary are products of the code and consist of predictions of the need for and the cost of nuclear fuel over various years, breaking the cost figures into.their elements.
The reason given in the affidavit for claiming the matter to be proprietary is that public disclosure of the price Licensee projects it will have to pay for fuel will damage the Company's bargaining position with fuel vendors.
Counsel for the requesting party urges that the cost of uranium fuel is very material to the cost-benefit balance to be struck in this proceeding and that a proprietary order will prevent counsel from obtaining all the advice he needs with regard to whether or not the projections are reasonable.
The latter is true, the argument goes, because some experts in the field will not be interested in examining Consumers' documents which are covered by the rules regarding I
proprietary information.
i We think that the cost and schedule projections are information which falls within standards 1, 3 and 4 as set out in the Wolf Creek decision; we do not think that it fits
. standard 2 as that standard is given meaning in that decision.
I
_4-It is our view that for a utility in a licensing pro-ceeding to successfully clain that fuel cycle cost infor-mation developed by it is proprietary, it must make a better case than that disclosure of the information will damage its bargaining position when it goes on the market for fuel.
IT IS THEREFORE ORDERED that Licensee's computer code 9
called NM" is proprietary information and that discovery thereof may be had on the following conditions:
a.
Only the parties' counsel and experts who have a need to know shall be permitted access to the information; b.
Said counsel and experts shall not disclose the information to any third person, nor photocopy, duplicate or transcribe such information; c.
Said counsel and experts shall be permitted to take notes and data from the information, but the disclosure of said notes shall be subject to the restrictions of (b.) and (d.) herein;
l
. i d.
Said counsel and experts shall utilize the information only for the purpose of preparation of the issues in this pro-ceeding and for no other purpose; and e.
Said counsel and experts shall return the information to Applicants and destroy all notes and data taken therefrom at the conclusion of this proceeding.
IT IS FURTHER ORDERED that the balance of the documents described in Licensee's letters to the Board dated February 22, 1977, and March 14, 1977, are not proprietary information and that the discovery request therefore is granted without condition.
We refer to the Appeal Board the question of.the correct-ness of our cecision herein that certain described documents do not contain proprietary information and stay that part of this order so holding until the Appeal Board has acted on the referral.
THE ATOMIC SAFETY AND LICENSING B0
(
llL
~Frederic J. Couf4}, Chairman Dated at Bethesda, Maryland, l
this 7th day of October,1977.
l l
)
UNITED STATES OF AMERICA NUCLEAR REGULATORY CO:DlISSION In the Matter of
)
i
)
CONSUMERS POWER COMPANY
)
Docket No.(s) 50-329
)
50-330 (Midland Plant, Unit Nos.1 and '2)
)
)
)
)
CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing document (s) upon each person designated on the official service *11st co= piled by the office of the Secretary of tt Con:nission in this proceeding in accordance with the requirement.s of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Commission's Rules and.
-Reguistions.
1 Dated at Washington, D this f
day of
/D 197 i
4 L
RB1mr4 Of fice of the Secretary of/ the Com:nission i
s O
O 6
i 9
6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
)
In the Matter of
)
)
CONSUMERS POWER COMPANY
)
Docket No. (s) 50-329
)
50-330 (Midland Plant, Units 1 and 2)
)
)
SERVICE LIST Frederic J. Coufal, Esq., Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Emmeth A. Luebke James A. Kendall, Esq.
Atomic Safety and Licensing Board Currie and Kendall U.S. Nuclear Regulatory Commission 135 North Saginaw Road Washington, D.C.
20555 Midland, Michigan 48640 Dr. J. Venn Leeds, Jr.
Judd L. Bacon, Esq.
10807 Atwell Consumers Power Company Houston, Texas 77096 212 West Michigan Avenue Jackson, Michigan 49201 Office of the Executive Legal Director Counsel for NRC Staff William J. Ginster, Esq.
U.S. Nuclear Regulatory Commission Merrill Building, Suite 4 Washington, D.C.
20555 Saginaw, Michigan 48602 Myron M. Cherry, Esq.
One IBM Plaza Chicago, Illinois 60611 I
Harol1 F. Reis, Esq.
Lowenstein, Newman, Reis & Axelrad Honorabic Curtis G. Beck 1025 Connecticut Avenue, N.W.
Assistant Attorney General Washington, D.C.
20036 State of Michigan Seven Story Office Building Honorable Charles A. Briscoe 525 West ottawa 1
Assistant Attorney General Lansing, Michigan 48913 State of Kansas Topeka, Kansas 66612 Lee Nute, Esq.
Michigan Division Irving Like, Esq.
The Dow Chemical Company Reilly, Like and Schneider 47 Building 200 Weat Main Street Midland, Michigan 48640 Babylon, New York 11702
50-329, -330 paga 2 Anthony Z. Roisman, Esc.
Natural.Resou'rces Defense Council 917 - 15th Street, N.W.
Washington, D.C.
20005 Joseph Gallo, Esq.
Isham, Lincoln & Beale 1050 - 17th Street, N.W.
' Washington, D.C.
20036 Michael I. Miller, Esq.
Caryl A. Bartelman, Esq.
Isham, Lincoln & Beale One First National Bank Plaza Chicago, Illinois 60603 Ms. Mary Sinclair 5711 Summerset Street Midland, Michigan 48640 Mr. Steve Gadler, P.E.
2120 Carter Avenue St. Paul, Minnesota 55108 Grace Dow Memorial Library 1710 West St. Andrew Road Midland, Michigan 48640 s
I t