ML19347B570

Demands,On Behalf of Ge,That NRC Return GE Reed Rept Immediately Due to NRC Denial of Request That Rept Be Withheld from Disclosure Under 10CFR2.790.Rept Must Not Be Placed in PDR

ML19347B570
Person / Time
Site:	Black Fox
Issue date:	10/10/1980
From:	Edgar G MORGAN, LEWIS & BOCKIUS
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
NUDOCS 8010150365
Download: ML19347B570 (4)

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October 10, 1980 1

HAND DELIVER 1

Samuel J. Chilk Secretary U.S. Nuclear Regulatory Co= mission 1717 H Street, N.W.

Washington, D.C.

20555 Re:

General Electric Reed Report

Dear Mr. Chilk:

As you know, General Electric (GE) provided a copy of the Reed Report in confidence to the Atomic Safety and Licensing Board in Eie Public Service Coccanv of Oklahoca, et al. (Black Fox 1 and 2) construction permit proceeding i

for certain specific purposes identified in the Licensing Board's Protective Order, dated January 5,1980 in that pro-ceeding.

GE had previously provided the Cocsission with a list of safety related items and a su==ary status. report on these items extracted from the Reed Report and had requested that this infor=ation be withheld from public disclosure pur-suant to 10 C.F.R. 5 2.790.

By letter dated July 10, 1978, the Director of the Division of Systems Safety of the Office of Nuclear Reactor Regulation approved GE's request for with-holding this infor=ation from public disclosure under 10 C.F.R.

S 2.790.

In so doing, the Director specifically stated:

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MORCAN, LEWIS & BOCKlUS Samuel J. Chilk October 10, 1980 Page Two l

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In accord with Section 2.790(b)(1)(ii)

I of 10 C.F.R. Part 2 of the NRC regula-tions, your affidavit contains a state-ment of the reasons on the basis of

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which it is claimed that the information 1

should be withheld from public disclosure.

h In essence, your claim is that public i

disclosure of the list of safety-related i

items and the summary status report is i

likely to cause substantial harm to the competitive position of G.E.

We agree that if the ' Reed Report' in its entiretv were submitted, it should

)i be afforded the protection of pro-orietarv informarion under tne Con-

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mission's regulations because it is i

a oroduct improvement studv of im-l portant competitive value and because i

i disclosure of this sort of study could act to inhibit thoughtful self-criticism by nuclear ecuipment vendors since it would enable comoetitors to obtain a better uncerstanding of a manufacturer's i

procuct concerns and Drograms.

The aggregate list and summary status of the 27 safety-related items is derived from the report and therefore can be i

l afforded the same protection of pro-prietary information.

Because of the historical context of a product improve-ment study, we agree that the public disclosure of the aggregate list of the i

27 issues could cause substantial harm to the competitive position of G.E.

We have reviewed your application and based on the requirements and criteria l

of 10 C.F.R. 2.790 have deter =ined that

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the list of safety-related iteri and the summary status report sought to be with-held contain confidential or privileged i

commercial infor=ation.

(Emphasis added).

. MORGAN, LEWIS & SOCKlUS i

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Samuel J. Chilk October 10, 1980 Page Three By letter dated March 15, 1979, GE requested confirma-

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tion from the Commission that the copy of the Report provided i

to the Black Fox Licensing Board would be withheld from public i

disclosure in accordance with the requirements of 10 C.F.R.

i 5 2.790.

This letter was accompanied by another affidavit which again set forth the information required under 10 C.F.R.

S 2.790(b)(1).

At NRC's request, GE provided NRC with additional j

information, including still another affidavit, concerning the proprietary nature of the Report in a submission dated May 4, 1979.

i Section 2.790(c) of the Commission's Rules of Practice specifically requires 4

]

If a request for withholding pur-suant to paragraph (b) of this section i

is denied, the Co==ission will notifv j

an applicant for withholding of the denial with a statement of reasons.

The notice of denial will soecifv a time, not less than thirty (30') davs after the date of the notice, when the 4

document will be placed in the Public Document Room.

If, within the time specified in the notice the aoplicant i

reouests withdrawal of the document, the document will ce returned to the applicant 10 C.F.R.

5 2.790(c) (emphasis added).

To date, GE has not received a denial from the Cocmis-t sion of its application requesting that the Reed Report be with-held from public disclosure.

However, GI has become aware of the fact that on October 9,1980 the Coc=ission, in acting upon i

4 a certified question submitted by the Black Fox Licensing (Board

)

concerning the proposed return of the Reed Report to GE, 1) l determined that the Board should not return its copy of the Reed Report to GE, (2) vacated the Board's January 5, 1980 Protective Order, and (3) directed the Board to transmit its copy of the Report to the Office of the Secretary.

In a related action on the same date, the Commission granted the Freedom of Information Act (FOLA) appeals submitted by the Sunbelt Educaricnal Foundation and the Prairie Alliance seeking release of a copy of the Reed Report which GE had provided to the Black Fox ASL3 in confidence oursuant to the ter=s of the Protective Order.

In so doing, the Co= mission indicated that it would "make a copy of the document available for inspection and copying in 20 days at the NRC Public Document Room (PDR) in Washington."

- MORGAN, LEWla & BOCKlUS Samuel J. Chilk September 10, 1980 Page Four The Co= mission has therefore denied GE's request that the Com-4 ssion withhold the Reed Report from disclosure under 10 C.F.R.

5 2.790.

By its actions, the Cocmission has already violated 10 C.F.R.

5 2.790(c) by not providing GE with the notice required by that section and by proposing to place the 4

document in the PDR in less than 30 days.

However, the Cocnis-sion has an unequivocal obligation under 10 C.F.R. 5 2.790(c) to return the Reed Report to GE and not place this document in the PDR if GE requests withdrawal of the Report.

Accordingly, pursuant to 10 C.F.R S 2.790(c), GE hereby demands that the Commission return the Reed Report to GE ic=ediately and not place this document in the PDR.

Respectfully submitted, ugar Attorney for General Electric Company cc:

General Counsel, NRC

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