ML19347B409
| ML19347B409 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 10/09/1980 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8010150004 | |
| Download: ML19347B409 (5) | |
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4 UNITED STATES OF A!! ERICA g
NUCLEAR REGULATORY COMMISSION g,
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COMMISSIONERS:
L Ottee of the Secrwhn Occhetia: 5 SemC8 7
John F. Ahearne, Chaiman Q
Victor Gilinsky g /f.
O' Joseph fi. Hendrie Peter A. Bradford
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0 In the Matter of
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PUBLIC SERVICE COMPANY OF OKLAHCMA,
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Docket Nos. STil 50-556 9 -
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STN 50-557 k
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(Black Fox Station, Units 1 and 2)
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f1EMORANDUf1 AND ORDER ON CERTIFIED QUESTION:
RETURN OF GE NUCLEAR REACTOR STUDY On l'ay 30,1979, the Licensing Board in this proceeding certified to the Ccamission the question whether the General Electric Nuclear Reactor Study and its related Sub-Task Force Reports, which is generally known, and hence will be referred to, as the Reed Report (for its principal author-director),
should now be returned to General Electric.
The Reed Report was obtained in confidence and is subject to a protective order.
For reasons described more fully i.n this tinion, the Commission believes that it should not be returned.
Generai Electric has characterized the Reed Report as a product improve-ment study intended to enhance the availability and perfomance of GE's Boiling Water Reactors. When the Reed Report was completed in 1975, GE determined that 27 safety-related issues we-e raised in the context of the Report, that NRC was aware of each of them, and, thus, that GE need not report k
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I them to the NRC under section 206 of the Energy Reorganization Act.
How-ever, GE did inform the NRC of the scope and purpose of the Report, its competitive sensitivity, and GE's own review of the Report for new or significant safety information.
In October 1978 in the Black Fox pro-ceeding, concerning whether to pennit construction of two GE boiling water reactors at an Oklahoma site, intervenors, Citizens Action for Safe Energy, sought to cross-examine applicants' witnesses from General Electric with regard to the Reed Report.
The Board suspended the examination and attempted to obtain a copy of the Report for in, camera inspection by the parties, under a protective order, as to the 27 safety issues.
Rather than produce the Report, General Electric, not a party to the Black Fox pro-ceeding, offered to extract portions of the Report arguably pertaining to safety and to make those extracts available under protective order. The Board rejected the offer and issued a subpoena for the Report; GE responded with a motion to quash the subpoena.
On January 2,1979, GE proposed a settlement which the Board approved, thereby rendering moot the motion to quash.
The pertinent terms of the protective order are (1) the Reed Report is available to the Board in confidence, (2) verbatim extractions are avail-able to counsel insofar as they relate to Intervenor's contentions and i
Board a"astions, and (3) the Reed Report is available to Intervenor's cavi
. valuate the faithfulness of the extractions.
The parties also signed protective agreements which limited access to and use of the Report.
Af ter in, camera evidentiary hearings on February 20, 27 and 28,1979, the 1
3 extractions were admitted into evidence i_n, camera.
The Reed Report itself n
was never admitted into evidence.
Certification to Commission at 5.
On February 13, and March 7,1979, the Board received requests under the Freedom of Infomation Act (FOIA), 5 U.S.C. 552, for the Reed Report.
Both requests were denied and no appeals were filed.O After these FOIA denials, GE moved to have the Board retuin the Reed Report.El This motion was also denied,in part because the Board was not bound by any protective agreement to return the Report and because of the possibility of adminis-trative appellate review of the Board's decision.
The Board certified to the Commission on May 30, 1979 the question whether the Reed Report should be returned to GE.
In the certification request, the Board Chaiman recommended that the Commission return the report.
Before the Commission could act on that question, the Sunbelt Educa-tional Foundation's FOIA request was filed on June 5,1979. The request was denied by the Board on June 18 on the same grounds as the prior re-quests. An appeal was filed with the Commission on June 28.
Another F0IA l
request, from the Prairie Alliance filed on September 26, 1979, was denied on the same grounds.
Its eppeal was filed November 12 and became con-solidated with the existing appeal.
E The March 23 and 29 denials noted (1) that the Reed Report came into possession of the Board pursuant to a protective order, (2) that GE has submitted an affidavit asserting proprietary status, and (3) that the NRC was in the process of reviewing the claim.
El By letter dated April 13, 1979, GE assured the Board that if either the Licensing or Appeal Board desired to review the Reed Report in the future, it would be made available.
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These appeals raised several important and controversial issues about the FOIA, including whether the Reed Report may be considered an
" agency record"~-- a question of first impression for the Commission --
or whether the Reed Report may be considered confidential for purposes of Exemption 4.
5U.S.C.552(b)(4).
After extensive consideration, including several consultations with the Department of Justice, the Commission con-cluded that the Report should be deemed an " agency record" owing t NRC's apparent substantial control of the document as against any GE right of retu rn. At the same time, the NRC staff reviewed a copy of the Report at GE's offices to determine whether to grant a GE request that the Report te treated as proprietary information. See 10 CFR 2.790.
During the pendency of the appeal, the staff advised the Commission that it did not have an adequate basis to conclude that release of the Report would cause sub-stantial hann to GE's competitive position.
Finally, the Commission con-sidered whether disclosure of the Report would impair the NRC's ability to receive similar information in the future.
The Commission was evenly divided on this question. Chairman Ahearne and Ceneissioner Hendrie would withhold the Report; Commissioners Gilinsky and Bradford voted to release it.
Camnissioner Bradford has noted his own view that the NRC's examina-tion of this document flowed not from the casual voluntary disclosure of its existence to two Commissioners at a luncheon but from the fact that its existenc' was revealed to the public in Congressional testimony some months later.
Under the FOIA, because a majority of the Commission did not vote to withhold the document, it must be released and, therefore, both appeals
5 have been granted by the Commission.
The Commission intends to make a copy i
of the Reed Report available for inspection and copying in 20 days at its Public Document Room in Washington.
Accordingly, based on the above considerations, the Commission has decided that the Board should not return its copy of the Reed Report to the j
General Electric Company.
The Commission vacates the Board's protective order and directs that the Board's copy of the Report be transmitted to the 1l Office of the Secretary. This matter is remanded to the Board for other and further action not inconsistent with this Order when the Report is made i
publicly deatlable.
It is so ORDERED.
For the Commission
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9' lobi ~C. Hoyle
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At[gingSecretaryoftheCommission a
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Dated at Washington, DC, fhday of October,1980.
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