ML19331B077
| ML19331B077 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 03/16/1972 |
| From: | Murphy A Atomic Safety and Licensing Board Panel |
| To: | Saginaw Intervenor |
| References | |
| NUDOCS 8007250773 | |
| Download: ML19331B077 (8) | |
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of
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f CONSUMERS POWER COMPANY Docket Nos. 50-329 0-330 Midland Plant, Units 1 and 2
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ORDER WITH RESPECT TO SUBPOENA TO WESTINGHOUSE ELECTRIC CORPORATION In view of the complex history of this question, a few words of explanation would seem to be in order.
Saginaw inter-venors are seeking to use in this proceeding documents of the Westinghouse Electric Corporation claimed by Westinghouse to be proprietary.
Saginaw's original request for documents was based on the premise that the Applicant in the instant pro-
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ceeding was required to establish that its reactor systems incorporated the "best available technology."
The Board has ruled against that contention, holding that Applicant need only establish that its system (designed by Babcock and Wilcox (h&W),
a competitor of Westinghouse) was satisfactory.
However, Saginaw also claims that access to the Westinghouse documents is necessary in order that it may intelligently cross-examine Applicant's witnesses with respect to the B&W system.
Westinghouse has objected to the use of the documents on the ground that there would be no way to protect the documents from disclosure to its competitor.
The question is complicated by the fact that the Westinghouse documents are already on file with the Atomic Energy Commission in connection with other proceedings and, indeed, are in_the possession of counsel to Saginaw under a protective order in another proceeding involving a Westinghouse reactor.
so on5077'3
2.
At the hearing in July, the Board ruled on the basis of its own examination of the documents and the available literature that the information in the Westinghouse documents was un-necessary for purposes of cross-examination.
Howeve'r, at Saginaw's request the Board certified the question as to whether the documents should be made available to the Atomic Safety and Licensing Appeal Board.
The Appeal Board upheld the denial of the use of the documents, but did so on the mitaken impression that this Board had made a finding that the documents were proprietary in nature.
In fact, this Board had decided that there was no need -
for the documents, and accordingly that it was unnecessary to inquire into the nature of the documents.
As we construe that order, it is necessary for us to inquire into the proprietary nature of the documents even though we are of the opinion that Saginaw does not need them to conduct effective cross examination.
In order to expedite that determination it was stipulated among the parties that we should treat the question as though it arose upon the issuance of a subpeona by the Board to Westinghouse.
Westinghouse thereupon served a motion to quash the subpoena which was denied by the Board; however, by permission of the Board, Westinghouse has now filed a motion for reconsideration of the denial of the motion to quash the subpoena as well as supporting arguments and an affidavit with respect to the question of the proprietary nature of the documents.
The Board hereby denies the motion for reconsideration and proceeds to the question oi' the nature of the documents.
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3.
West 1'nghouse and Saginaw have radically different views as to what is required under law to constitute information as proprietary.
As we understand the Westinghouse argument it is essentially that a report is proprietary if it is " customarily held in confidence by the originator."
Saginaw on the other hand is of the view that "unless Westinghouse can demonstrate that its information is in the nature of a trade secret, that dis-closure of the trade secret would create a serious and direct competitive injury to Westinghouse', and that on balance the-public interest would be served by withholding the information, the documents must be produced forthwith."
Saginaw goes on to deny that the information is a trade secret, claiming that on
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the contrary "the information contained within the subject reports ~
are matters of general knowledge known and used by others in the industry and were not developed by Westinghouse.
We note in passing that Saginaw is in the anomalous position of claiming that it cannot conduct its cross-examination without using the documents and on the other hand claiming that there is nothing in the documents which is not e.nailable from the general literature.
Be that as it may, we are of the opinion that the proper test of the claim is whether the information was in fact developed by Westinghouse and has been, in fact, kept as proprietary information.
This would appear to be much the same test as that applied by the Board in the ECCS hearing except that the Board there required a showing that the classification was " rational."
4.
If there were such a requirement we would find it satisfied here.
We need not reach on this occasion the question of whether the public interest in access to the information outweights the private interest of Westinghouse since we have already ruled (and that ruling has been sustained by the Appeal Board) that the information is not needed for the purposes for which it is sought.
With respect to the first branch of the test the Board is satisfied on the basis of its own examination of the docdments
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and a comparison with the published literature..available that the information was in f act developed by Westinghouse-as a result of its own experiments and at its own expense.
With respect to -
the treatment of the information by Westinghouse now Westinghouse has filed with the Board an affidavit by Robert A. Wiesemann to the effect among other things that the documents are customarily held in confidence by Westinghouse and not customarily made available to the public.
Saginaw has introduced an affidavit of its attorney Myron Cherry which purports to challenge Westinghouse's practice with respect to proprietary documents.
However, the instances related in the af fidavit pertain not to the documents in question here, but to other documents.
In the circumstances it seems to the Board that the affidavit of Mr. Wiesemann remains unchallenged
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5.
with respect to these particular documents.
At this point there does not seem to be any need to hold an oral hearing on the question of the nature of the documents; however, Saginaw is hereby given twenty days from the date of this order to make an offer of proof with respect to Westinghouse's handling of the particular documents in question.
If, in the Board's view, the offer of proof raises a substantial question, the Board will held an evidentiary hearing or require further,
affidavits of Westinghouse, whichever seems appropriate.
Failing the submission of such information the motion to quash the subpoena will be granted.
For the Atomic Safety and Licensing Board lY ?d'.:uy>-L Arthur W. Murphy,Chairmape" March 16, 1972 l
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WITED STATES OF AMERICA
-ATCMIC ENERGY CCEtISSION In the Matter of
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C0!;SCERS POKER CCMPA:TI
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Decke,:ic. D -jEr, ;'C (Midland Plant, Unita 1 and 2)
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CERTIFICATE OF SERVICE
,m I hereby certify that copies o CR;ZT I I2ESPZLT T3 E C D TO WESTINGHOUSE EIECTRIC CORPORATIw. ; ad March 16, 1972 in the capticned matter have been served on the folleving by deposit in the United States mail, first class or air mail, this 16th day of March 197C:
Arthur W. Murphy, Esq., Chairman Richard G. Smith, Esq.
Atomic Safety and Licensing 2 card Smith & 2rcoher, P. C.
Columbia University School cf Lav 703 Washingten Avenue 435 West ll6th Street, Box 38 2ay City, Michigan ho7C6 New York, New York 10027 Harold P. Graves, E3q.
Dr. Clark Goodman Vice Presiden*, and General Professor of Physics Counsel University of Housten John
. Beatrick, Esq.
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3801 Cullen Boulevard Ccnsumers Pcver Cc:gany Houston, Texas 77004 212 Vest Michigan Avenue
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Jackson, Michigan h9201 Dr. David B. Hall Ios Alamos Scientific Laboratory Mr. R. C. Yot.ngdahl P. O. Box 1663 Senior Vice President Ics Alamos, New Mexico 875kh Consumers Power Ccmpany 212 West Michigan Avenue Dr. Stuart G. Forbes Jackson, Michigan h9201 100 Tennessee Avenue, Apt. 37 Redlands, California 92373 Honorable Frank Olds, Chairman Midland County Board of Supervisors Thcanas F. Engelhardt, Esq.
623 St. Charles Street David E. Kartalia, Esq.
Midland, Michigan 486h0 Robert Newton, Esq.
Regulatory Staff Counsel Henorable Jerome Maslowski U. S. Atomic Energy Commission Assistant Attorney General Washington, D. C. 205h5 State of Michigan Seven Story Office Building Robert Lowenstein, Esq.
525 West ottava Jerome E. Shartman, Esq.
Lansing, Michigan h8913 Lovenstein, Newman & Reis 1100 Coonecticut Avenue, N. W.
Honorable Curtis G. Beck Washington, D. C. 20036 Assistant Attorney General State of Michigan Seven Story vffice Building 525 West Ottava Lansing, Michigan h8913
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50-329, 330 rage 2 Myron M. Cherry, Esq.
William A. Greening, Jr., Esc.
Suite 1005 Jaues II. c 'cennor, Eco.
109 Itorth rearborn Street "he Dev Chemical cc ;any Chicago, Illinois 60602 2030 Dev Center
'41dland, :41chigan k36hG Anthony Z. Roisnan, E::q.
Ecrlin, Rois=an & Xassler William J. Ginster, Esq.
1712 I Stree.. :T. W.
'""' Euilding, Suite 4
'lashington, D. C. 20036 Eaginav, Michigan kd602 James A. Kendall, Esc.
Mr. Wendell H. Marshall Currie and Kendall RFD No.10, Mapletcm 135 Ucrth Saginav Road Midland, Michigan 48640 Midland, Michigan 486L0 Irving Like, Esq.
Dr. Wayne E. North, Chairman Reilly, Like and Schneider -
Mialand Nuclear Power Committee 200 West Main Street P. O. Box 335 Babylon, Nev York 11702 Midland, Michigan 48640 Honorable William E. Ward Milton R. Wessel, Esq.
Assistant Attorney General J. Richard Sinclair, Esq.
State of Kansas' Allen Kezsbom, Esq.
Topeka, Kansac 66612 Kaye, Scholer, Fierman, Hays and Handler Mr. Robert A. Wiesemann, Manager 425 Park Avenue Special Licensing Projects New York, New York 10022 Westinghouse Electric Corporation Box 355 A. W. Vadnais, Esq.
Pittsburgh, Pennsylvania 15230 Westinghouse Electric Corporation B. Z. Cowan, Esq.
1782 Westinghouse Building Eckert, Sea:aans, Cherin & Mellott Gateway Center 10th Floor, Porter Building Pittsburgh, Pennsylvania 15222 Sixth Avenue & Grant Street Pittsburgh, Pennsylvania 15219
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? $2nf Office of the Secretary of the/ Cct: mission ec: Mr. Murphy Mr. Engelhardt ASLEP N. Brown Reg. Files