ML20033B951
| ML20033B951 | |
| Person / Time | |
|---|---|
| Site: | Point Beach  |
| Issue date: | 11/24/1981 |
| From: | Davis F WESTINGHOUSE ELECTRIC COMPANY, DIV OF CBS CORP. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8112020501 | |
| Download: ML20033B951 (8) | |
Text
11/24/81 DRAFT 4 - --*
00LKETED U%RC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~81 NOV 27 P3i48 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD F SECRET /,RY
~ 7:G & SERVICE LRAJCH In the Matter of Docket Nos. 50-266 WISCONSIN ELECTRIC POWER COMPANY :
50-30 b (OL Amendment) on I f C+ /
(Point Beach Nuclear Plant, Y
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h Units 1 and 2) g t' gget &i BRIEF OF WESTINGHOUSE ELECTRIC CORPORATION,
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APPEARING SPECIALLY, ON ISSUE OF DECADE ACCE
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TO PROPRIETARY DATA PURSUANT TO PROTECTIVE ORD x'U
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Introduction The question addressed by this brief is wnether Decade should be allowed access to a proprietary affidavit filed by Westinghouse Electric Corporation
(" Westinghouse")
in support of its claim that certain information previously submitted by Wisconsin Electric Power Company ("WEPCO") in this proceeding should be withheld from public disclosure.
In connection with the underlying issue of tube sleeving for steam generators, WEPCO had submitted certain We.3tinghouse technical information to the Commission with a claim for pro-3 prietary protection.1 On November 13, 1981, Westinghouse sub-I mitted the Affidavit of R. A. Wiesemann and the Supplement llo thereto (hereinafter "the Wiese". ann affidavit") addressing The Staff has found the information to be proprietary and accorded it such protection.
8112O20501 a11124 PDR ADOCK 05000 C
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why the Westinghouse proprietary information previously submitted 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-1 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-i mation shall be subject to disclosure only in accordance with the provisions of 59.12 of this chapter."
Section 9.12, in turn, provides that 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 j
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 I
A threshold issue is ehether the Wiesemann affidavit 4
should be afforded any proprietary protection.
Wes tinghouse Westinghouse submitted the Wiesemann affiaa vit only 'to the l
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 La permitted to examine the affidavit of R. A.
t Wiesemann under a protective order (Tr. 810).
s 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).
Suusequently, 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 i'n 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 Westinghouse should therefore file another supporting affidavit (Tr. 777).
In adopting 5 2.790 (b) (1) (ii), tne 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 privileged commercial information in the affidavit without subjecting such supporting information to the procedural requirements of the rule.
To do otherwise could result in an unnecessary number of affidavits."
41 Fed.
4 Reg. 11808 at 11809.
March 22, 1976.
Thus, the Commission has fort'een the instant situation and has rejected the requirement that a supporting affidavit needs, in turn, an additional supporting affidavit.
Ac-cordingly, the Wiesemann affidavit properly should be given j
proprietary protection by the Commission pursuant to S 2.790 l
(b) (1) (ii) of its Rules of Practice.
i 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 l
to a protective order.
First, under S 2.790 (b) (1) (ii), the information is only subject to disclosure under S 9.12.
Under S 9.12, there are three possible paths to discuss con-cerning 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 I
~
FOIA request regarding the instant matter.
A second path is the reference 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 5 2.790 (b) (1) (ii),
and its reference to S 9.12, no disclosure to Decade is ap-propriate or authorized here.
' arther, even if the Board were to consider dis-closure *.nder S 2.790, such disclosure to Decade here is not appropriate.
Decade is not properly and directly con-cerned with the issues addressed in the Wiesemann affidavit.
Section 2.790 (b) (6) provides in part that:
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 secre.t or privileged or confidential commercial or financial information to be subject to in-spection:
. under protective order, by parties to a proceeding, pending a decision of the Commission on the matter of whether the information should be made publicly available or when a decision has been made that the information should be withheld from public disclosure." (Emphasis added).
The mere fact that Decade is a party to a Commission proceed-ing does not, by itself, give that party access to a proprietary m
affidavit 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 in-spect proprietary information - has been recognized by the Commission in its deliberations on S 2.790 (b).
The Commis-sion has stated that:
"[u]nder [_ subsection (b) Of S 2.790] a party to a licensing.
. proceeding who needs ac-cess to 'propriatary information' may u pon a proper showing of relevancy inspect such in-formation 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 i
how the Wiesemann affidavit is relevant to the contention upon which is was admitted.
The underlying issue admitted
~.
i as a contention concerned safety-related aspects of the sleeving process.
Decade has been furnished Westinghouse proprietary information dealing with the under1:.-ing details i
of that process pursuant to a protective order.
In this instance, however, the Wiesemann affidavit is concerned 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 i
A i
^
+
from the safety-related issues.
Hence, Decade should be denisd access to the affidavit even under the terms of a protective order.3 a
l Westinghouse urgc= the Board to deny Decade ac-cess to the proprietary version of the Wiesemann affidavit i
e i
because of its failure: (a) to comply with the requirements of 5 9.12, (b) to demonstrate that it is properly and di-t rectly concerned with the content of the Wiesemann affidavit.
1 i
In the alternative, Westinghouse urges that the submission i
of the non-proprietary version of the Wiesemann affidavit to Decade be determined to be sufficient.
.t 137h as
.L uie
.r 4
Francis X. ' Davis Counsel for Westinghou/ '
se Electric Corporation, i
Appearing Specially
- 2. O. Box 355 Pittsburgh, Pennsylvania 15230 Dated:
November 24, 1961 I
l In an effort to resolve this matter, Westinghouse has pre-pared a non-proprietary version of the Wiesemann affidavit.
Should the Board determire that the proprietary Wiesemann affidavit, or portions thereof, should be released, Westing-house requests the opportunity to submit a draft protective order for Board consideration which will accord Westinghouse proprietary information appropriate protection against dis-closure.
Westinghouse further is prepared to show, should it become necessary, that Decade previously has disclosed proprietary information in an unauthorized manner and should not be permitted in any event to see the Wiesemann affidavit. i
'N 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 (OL Amendment)
(Point Beach Nu' clear Plant, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of the BRIEF OF WEST-INGHOUSE ELECTRIC CORPORATION APPEARING SPECIALLY, ON ISSUE OF DECADE ACCESS TO PROPRIETARY DATA PURSUANT TO PROTECTIVE ORDER 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 24th day of November,1981.
WCA3
.UTS eh Francis X.
DavYs
'\\
Counsel for Westinghouse Electric Corporation, Appearing Specially Dated:
November 25, 1981
j.
v SERVICE LIST Peter B. Bloch, Chairman Atomic Safety and Licensing Appeal Administrative Judge Board Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Panel Washington, D.C.
20555 U. S. Nuclear Regulatory Comission Washington, D.C.
20555 Atomic Safety and Licensing Board Panel Dr. Hugh C. Paxton U. S. Nuclear Regulatory Comission 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 Comission Gerald Charnoff, Esq.
Washington, D.C.
20555 Shaw, Pittman, Potts & Trowbridge 1800 M Street N.W.
Kathleen M. Falk, Esq.
Washington, D.C.
20036 Wisconsin's Environmental Decade 114 North Carrell Street Madison, Wisconsin 53703 Stuart A. Treby, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Francis X. Davis, Esq.
Westinghouse Electric Corporation, Appearing Specially P. O. Box 355 Pittsburgh, PA 15230