ML20033B912
| ML20033B912 | |
| Person / Time | |
|---|---|
| Site: | Point Beach  |
| Issue date: | 11/25/1981 |
| From: | Davis F WESTINGHOUSE ELECTRIC COMPANY, DIV OF CBS CORP. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20033B903 | List: |
| References | |
| NUDOCS 8112020438 | |
| Download: ML20033B912 (8) | |
Text
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11/25/81 FINAL DRAFT DOLKETED USNRC UNITED STATES OF AMERICA i
l NUCLEAR REGULATORY COMMISSION
'81 NOV 30 P2:27
'BEFORE THE ATOMIC SAFETY AND LICENSING BOARD.F SECRETARY
-'! "O & SERVICE t
i J-ASCH I
In the Matter of Docket Nos. 50-266 WISCONSIN ELECTRIC POWER COMPANY :
50-301 (OL Amendment)
(Point Beach Nuclear Plant, Uni's 1 and 2) t
[
BRIEF OF WESTINGHOUSE ELECTRIC CORPORATION APPEARING SPECIALLY, ON ISSUE OF DECADE ACCESS-I TO PROPRIETARY DATA PURSUANT TO PROTECTIVE ORDER I.
Introduction i
The question addressed by this brief is whether Decade should be allowed access to a proprietary affidavit i
filed by Westinghouse Electric Corporation
(" Westinghouse")
in support of its claim that certain information previously c
submitted by Wisconsin Electric Power Company ("WEPCO") in l
this proceeding should be withheld from public disclosure.
In connection with the underlying issue of tube sleeving i*
for steam generators, WEPCO had submitted certain Westinghouse technical information to the Commission with a claim for pro-prietary protection.
On November 13, 1981, Westinghouse sub-i mitted the Affidavit of R. A. Wiesemann and the Supplement thereto (hereinafter "the Wiesemann affidavit") addressing l
1The Staff has found the.information to be proprietary and I
accorded it such protection.
hD 0
DR O
- - - - _,. -.-..- - _.,,. -. ~. -.-,..- -- -
N why the Westinghouse proprietary infcrmation previously cubmitted in this proceeding should be so withheld from public disclosure.
The Wiesemann affidavit was so sub-mitted pursuant to 10 CFR S 2.790 (b) (1) (ii) (1981) and West-inghouse has claimed proprietary protection for the affi-davit.
By its terms, the S 2.790 (b) (1) (ii) regulation au-thorizes an -affiant to designate information submitted in the affidavit as proprietary, and states that "such infor-mation shall be subject to disclosure only in accordance with the provisions of 59.12 of this chapter."
Section 9.12, in turn, provides th<t records which are exempt from public disclosure (under S 9.5) shall not be disclosed except in accordance with Part 9 or-Sections 2.744 or 2.790.
Westinghouse. submits that under these provisions, disclosure to Decade of the proprietary affidavits submitted to support a proprietary claim is not authorized.2 II.
The Wiesemann Affidavit is Proprietary A threshold issue is whether the Wiesemann affidavit should be afforded any proprietary protection.
Westinghouse 2Westinghouse submitted the Wiesemann affidavit only to the three members of the Board and to the staff counsel, but not to the other parties to the proceeding.
The presiding offi-cer has invited a brief from Westinghouse as to whether or not Decade.should be permitted to examine the affidavit of R.
A.
Wiesemann under a protective order (Tr. 810).
The presiding officer also asked the counsel for WEPCO if he were interested in examining the Wiesemann affidavit (Tr. 810).
WEPCO counsel declined (Tr. 810).
Subsequently, WEPCO counsel inquired as to whether he might be a party to a protective or-der as an individual, apart from his role as WEPCO's counsel (Tr. 814), but in a later telephone call with counsel for Westinghouse, he withdrew this request...
submits that the regulation is clear that such proprietary protection must be afforded, although it has been stated that there was no
" support [for] the rather unparticularized statement
. that the entire.Wiesemann affidavit
. was confidential," and that Westing-house should therefore file another supporting affidavit (Tr. 777).
In adopting S 2.790 (b) (1) (ii), the Commission noted as follows with respect to the need for additional affidavits to support a proprietary claim with regard to an affidavit claiming proprietary protection:
"The Rule also has been amended to permit an owner to include trade secrets or confidential or privi-leged commercial information in the affidavit with-out subjecting such supporting information to the procedural requirements of the rule.
To do other-wise could result in an unnecessary number of affi-davits."
41 Fed. Reg. 11808 at 11809.
March 22, 1976.
Thus, the Commission has foreseen the instant situation and has re-jected the requirement that a supporting affidavit needs, in turn, an additional supporting affidavit.
Accordingly, the Wiesemann affidavit properly should be given proprietary protection by the Commission pursuant to S2.790 (b) (1) (ii) of its Rules of Practice.
The Chairman cited two Department of Energy (DOE) administrative de-cisions for the propositions that the Board has jurisdiction in this matter and that documents supporting release be particularized.
(Tr.
778-79).
These decisions concern interpretations of DOE's regulations published at 10 CFR Part 1004, which implement the Freedom of Informa-tion Act (5 USC 552).
Here, we are applying the Rules of Practice of the Nuclear Regulatory Commission (NRC) in a non-FOIA context.
More-since those NRC Rules of Practice directly govern the protection
- over, of proprietary information transmitted to the Staff, Westinghouse res--
pectfully submits that the DOE decisions are inapposite.
III.
Decade Should Not Have Access to the Proprietary Wiesemann Affidavit There are several reasons why Decade should not be allowed access to the Wiesemann affidavit, even pursuant to a protective k
order.
First, under S 2.790 (b) (1) (ii), the information is only sub-ject to disclosure under S 9.12.
Under S 9.12, there are three.pos-sible paths to discuss concerning disclosure.
The first path, Part 9, is inapplicable here because Part 9 is the implementing provision for the Freedom of Information Act ("FOIA") and there has been no FOIA request regarding the instant matter.
A second path is the re-ference in S 9.12 to S 2.790, which is a completely circular reference and hence inapplicable.
The third path is the reference to S 2.744, which discusses a disclosure request to the Executive Director for Operations, a request which has not been made here.
Thus, under S 2.790 (b) (1) (ii), and its reference to S 9.12, no disclosure to Decade is appropriate or authorized here.
Further, even if the Board were to consider disclosure under 5 2.790, such disclosure to Decade here is not appropriate. De-l cade is not properly and directly concerned with the issues addressed in the Wiesemann affidavit.
Section 2.790 (b) (6) provides in part l
that:
i l
" Withholding from public inspection shall not affect the right, if any, of persons properly and directly concerned to inspect the document.
The Commission may require information claimed to be a trade secret or privileged or confiden-tial commercial or financial information to be subject to inspection:
under protective order, by parties to a proceeding, pending a decision of the Commission on the ratter of whether the information should be made publicly available or when a decision has been made that the information shoald be withheld from public disclosure."
(Emphasis added).
1 The mere fact that Decade is a party to a Commission proceeding does not, by itself, give that party access to a proprietary affi-davit which seeks to explain why underlying information should be held proprietary.
The above-quoted excerpt from the Commission's regulations shows that a party must also be properly and directly concerned in the issues addressed in the document.
This additional showing has not been made by Decade.
Moreover, this requirement - that a party of a licensing proceeding must show relevance to be able to inspect proprietary in-formation - has been recognized by the Commission in its delibera-tions on S 2.790(b).
The Commission has stated that:
"[u]nder [ subsection (b) of S 2.790] a party to a licensing.
proceeding who needs access to ' proprietary information' may upon a proper showing of relevancy inspect such information under a protective order.
(Emphasis added).
41 Fed. Reg. 11808 at 11809. March 22, 1976.
It is clear that Decade has not met its burden of showing how the Wiesemann affidavit is relevant to the contention upon which Decade was admitted.
The underlying issue admitted as a contention concerned safety-related aspects of the sleeving process.
Decade has been fur-nished Westinghouse proprietary information dealing with the under-lying details of that process pursuant to a protective order.
In this instance, however, the Wiesemann affidavit is con-cerned with matters as to why the underlying material meets the Commission tests for holding it proprietary.
Thus, the Wiesemann affidavit is concerned with competitive and cost considerations of the sleeving process totally divorced from the safety-related issues.
Hence, Decade should be denied access to the affidavit even under the - -
terms of a protective order.4 Westinghouse urges the Board to deny Decade access to the proprietary version of the Wiesemann affidavit because of its failure:
(a) to comply with the requirements of 5 9.12, (b) to demonstrate that it is properly and directly concerned with the content of the Wiesemann affidavit.
In the alternative, Westinghouse urges that the submission of the non-proprietary version of the Wiesemann affidavit to Decade be determined to be sufficient.
q M C 14 b(
Francis X.
Davis
/
Counsel for Westinghouse Electric Corporation, Appearing Specially P. O. Box 355 Pittsburgh, Pennsylvania 15230 Dated:
November 25, 1981 4 In an effort to resolve this matter, Westinghouse has prepared a non-proprietary version of the Wiesemann affidavit.
Should the Board determine that the proprietary Wiesemann affidavit, or portions thereof, be released, Westinghouse requests the opportunity to subrait a draft protective order for Board consideration which will accord Westinghouse proprietary information appropriate protection agcinst disclosure.
Westinghouse further is prepared to shcw, should it be-come necessary, that Decade previously has disclosed proprietary in-formation in an unauthorized manner and should not be permitted in any event to see the Wiesemann affidavit.
See my discussion at Tr.
783-84 regarding the unauthorized release by Decade of certain pro-prietary infsrmation submitted by WEPCO in a proceeding before the Public Service Commission of Wisconsin ("PCS") which was subject to a PSC protective order. -
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket Nos. 50-266 WISCONSIN ELECTRIC POWER COMPANY 50-301 (Point Beach Nuclear Plant, (OL Amendment)
Units 1 and 2)
CERTIFICATE OF SERVICE I hereby ceritfy that copies of the BRIEF OF WESTINGHOUSE ELECTRIC CORPORATION APPEARING SPECIALLY, ON ISSUE OF DECADE ACCESS TO PROPRIETARY DATA PURSUANT TO PROTECTIVE ORDER [11/25/71 Final Draft) in the above-captioned proceeding have been served on those shown on the Service List by deposit in the United States mail, first class, postage prepaid, this 25th day of November, 1981.
%e Francis X.
Davis d'
Counsel for Westinghouse Electric Corporation, Appearing Specially l
Dated:
November 25, 1981 i
______,_,___.-m.,d..__,_.,-.__.,__,____.._.-.
_, _. -,,, _,,. ~. - - - -... - - -.., ~ -... _ - -.. _ _ _. -. _
y SERVICE LIST Peter B. Bloch, Chairman Atomic Safety and Licensing Aopeal Administrative Judge Board Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Panel Washington, D.C.
20555 U. S. Nuclear Regulatory Commission Washington, D.C.
205E5 Atomic Safety and Licensing Board Panel Dr. Hugh C. Paxton U. S. Nuclear Regulatory Commission Administrative Judge Washington, D.C.
20555*
1229 - 41st Street Los Alamos, New Mexico 87544 Docketing and Service Section Office of the Secretary Dr. Jerry R. Kline U. S. Nuclear Regulatory Commission Administrative Judge Washington, D.C.
20555 Atomic Safety and Licensing Board Panel Bruce Churchill, Esq.
U. S. Nuclear Regulatory Commission Gerald Charnoff, Esq.
Washington, D.C.
20555 Shaw, Pittman, Potts & Trowbridge 1800 M Street N.W.
Kathlein M.- Falk, Esq.
Washington, D.C.
20036 Wisconsin's Environmental Decade 114 North Carroll Street Madison, Wisconsin 53703 Stuart A. Treby, Esq.
Office of the Executive Legal Director j
U.S. Nuclear Regulatcry Commission Washington, D.C.
20555 Francis X. Davis, Esq.
Westinghouse Electric Corporation, Appearing Specially P. O. Box 355 Pittzburgh, PA 15230
. -.