ML20039E173

Motion for Reconsideration of Portions of ASLB 811221 Memorandum & Order.Listed Topics Considered in Order W/O Full Discussion of Matters Involved.Same Result Would Not Have Been Reached If Issues Fully Understood

ML20039E173
Person / Time
Site:	Point Beach
Issue date:	12/31/1981
From:	Cowan B, Davis F, Keurick J ECKERT, SEAMANS, CHERIN & MELLOTT, WESTINGHOUSE ELECTRIC COMPANY, DIV OF CBS CORP.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20039E139	List: ML20039E138 ML20039E161 ML20039E173 ML20039E182 ML20039E184
References
NUDOCS 8201060608
Download: ML20039E173 (10)

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' UNITED STATES OF AMERICA DOCKETED.

UiNRC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOAss! JM -4 A11 :23 CTOCEOF MCM~'

C Cht .T C E In the Matter of )

) Docket Nos.-50-266 WISCONSIN ELECTRIC POWER COMPANY ) 50-301

) (OL Amendment)

(Point Beach Nuclear Plant, )

Units.1 and 2) )

MOTION FOR RECONSIDERATION OF DECEMBER 21, 1981 MEMORANDUM AND ORDER Westinghouse Electric Corporation (" Westinghouse"), appear-ing' specially in the above captioned proceeding, hereby moves 1/

the Atomic Safety and Licensing Board (" Board") to reconsider' those portions of its Memorandum and Order (Concerning Preliminary Confidential Issues), dated December 21, 1981 (the " December 21 1/ By making this Motion for Reconsideration, Westinghouse does not waive its right to appeal from the December 21 Order which requires filing of a new affidavit and a proposed protective agreement. Westinghouse, simultaneously with this filing, is submitting to the Board the affidavit ordered by'the Board, as'well as a proposed protective agreement and brief. Since neither portion of the Decem-ber 21 order directs the disclosure of proprietary informa-tion, an appeal from that Order does not appear appropriate at this time. However, to make the Westinghouse position on this matter clear, Westinghouse expects that it will be advised in advance prior to the Board furnishing to anyone, including Decade, any information claimed by Westinghouse to be proprietary, so as to afford Westinghouse the opportuni-ty, if it so choses, to take an appeal. Whether such appeal will be taken before the determination of the overall merits of the confidentiality issues on the sleeving report will depend on factors not yet ascertained, including whether any protective order is sufficient to assure the rights of Westinghouse will not be violated.

8201060608 811231~.

PDR ADOCK 05000266 _1_

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Order") with respect to the following topics:

A. The matter of "Public Releases", and in par-ticular, the discussion of the " Appropriate-ness of the Certificate by the Affiant" on pages 18 through 21 of the December 21 Order.

- )B . The matter of " Trustworthiness" of Decade's representatives, discussed on pages 17-18 of the December 21 Order; and C. The language contained in the Conclusions which casts aspersions (ni Westinghouse and the NRC Regulatory Staff with regard to their concern for the "public's right to know" (December 21 Order, pages 24-25).

Westinghouse believes, for the reasons set forth below, that these topics were addressed by the Board in its December 21 Opinion without full discussion of the matters involved, and that the language of the December 21 Opinion and the conclusions drawn by the Administrative Judge for.the Board would not have been used had such a full understanding been received.

A. The matter of "Public Releases" and the Discussion of the " Appropriateness of the Certificate by the Applicant" (December 21 Order, pages 18-21)

On page 18 of its December 21 Order the Board reaches and decides an issue that was not raised by any of the parties,

including Decade, and was not briefed or. argued to it. ! Without benefit of such presentations, without obtaining from Westinghouse or the Staff the background concerning procedures for the submittal of proprietary affidavits, and without otherwise according Westing-house due process on this matter, the Board accuses Westinghouse of not being in good faith in its review and certification as confidential in its entirety the proprietary affidavit. (By logical extension, although the Board does not so state, the Beard.also must believe the Staff was.not in good faith when the Staff agreed with Westinghouse that the proprietary affidavit was confidential in its entirety.) Such an extreme assault by the Board on the good faith and integrity of Westinghouse (and, by inference, the Staff) clearly is not justified. The Decem-ber 21 Order fails to note, and apparently the Board was not aware of the fact, that the procedure followed in this case was-in accordance with long-established procedures adopted by the-Staff and required to be followed by all persons submitting proprietary information to the Commission. Neither Westinghouse nor the Staff can be faulted, much less condemned with claims of 2/

As the Board notes, the determination to reach and decide an issue not raised by any party is directly contrary to the teachings of the Appeal Board in the North Anna case, where the Appeal Board refused to rule on an issue of confidentiality which was not presented to it. Virginia Electric and Power Company (North Anna Nuclear Power Sta-tion, Units 1 and 2, ALAB-555, 10 NRC 23 (1979). Westing-house submits that the Board. erred in its determination.

Although a licensing board may, on its own motion, explore issues which the parties themselves have not put in controversy, such sua sponte power is restricted solely to matters involv-ing " serious safety, environmental or common defense and security" questions. 10 CFR 52.790a. Thus, Westinghouse urges the Board to reverse its decision and delete there-f.om all determinations on issues not raised by any party.

lack of good faith, for following long-established procedures,.

the propriety of which,Juntil the. December-21_ Order, had'never been questioned.

Under.10 CFR S2.790, it has been the longstanding rule that a person who seeks to protect proprietary.information:must sub--

mit an affidavit claiming such information-is proprietary. The unvarying practice for many years has been that such affidavit, when it contains proprietary information, is designated as proprie-

.This practice has been completely accept--

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tary in_its entirety.

able to'and' accepted by the Staff. Indeed,.S2.790 specifically contemplated this procedure. As the Board ~noted elsewhere-in its opinion, the statement of consideration in adopting 52.790

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clearly allows an owner "to include" confidential information in an affidavit without being subject to_ procedural requirements.

In.the dialog leading to the adoption of S2.790 - a dialog of.

which the Board apparently was unaware when it rendered the December 21 Order - this very question was discussed specifically with' the Staff. From that discussion arose the policy ard prac-

tice of the Staff to require and accept-affidavits withca claim of proprietary in their entirety _without requiring the applica-tion of a procedural requirement to parse the affidavit for specific proprietary portions. If this background had been 4

before the Board, Westinghouse is confident the Board opinion would not have suggested that the affidavit certifications

' of the entire document as propriety,was not affixed in good faith.

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B. The Matter of " Trustworthiness" of Decade's Representative, as discussed on pages 17-18

.of the December 21 Order Westinghouse has raised in this proceeding a question con-cerning the reliability of Decade to maintain as confidential information of a proprietary nature which might be furnished to Decade. Most recently, in a footnote in its brief of November 25, 1981,' Westinghouse noted that it was prepared to show Decade previously had made unauthorized public disclosure of proprietary' information. The Board, in its December 21 Order (at page 17) found this claim "to be utterly without basis." 'This finding by the Board apparently was based on the Board's interpretation

/ between of a telephone conversation at the end of November 1981 the Board chairman and Westinghouse cvunsel. Westinghouse submits that the Board finding is erroneous and believes the error is the result of a misunderstanding of the information which Westinghouse counsel attempted to communicate in the November 31 telephone call.

To explain the misunderstanding, which gave rise to an 4 unjustified accusation by the Board that bestinghouse conduct had been " highly improper," it is necessary to place this matter in context. One of the fundamental positions of Westinghouse in this area of proprietary procedures is that the underlying affidavit submitted to establish n proprietary claim may, of itself, be claimed proprietary, and that Decade is not entitled to the underlying affidavit here because it is not relevant

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The Board opinion states that the conversation occurred on November 31, 1981, but since November has 30 days, the reference probably should have been to Monday, November 30.

to any issue in this case. (The Board has agreed that if the information is irrelevant to an issue in the case, the Board should not use its authority to order release of the information.

(Order, page 14)) Thus, although the Board has invited Westinghouse to sharpen its attack on Decade's trustworthiness by submittal of proof,' Westinghouse until now has been extremely reluctant to do so,-since in the Westinghouse view, such an attack should not be necessary to a proper disposition of the issues.-

Thus, when Westinghouse stated, in the footnote in its November 25, 1981 brief that it was prepared to show prior un-authorized disclosure by Decade, this claim was made in the-con-text of a request for hearing on this issue should the matter of Decade's trustworthiness ever be reached. In his telephone conversation with the Administrative Judge, Westinghouse counsel indicated that Westinghouse orally had been furnished information as to an unauthorized Decade disclosure of proprietary informa-tion. In response to a request for proof of the Westinghouse assertion, counsel indicated that he did not have the written proof in his possession at that time, and that it did not know precisely how-long it would take to obtain written documentation.

In fact, counsel was at that ttme in the process of obtaining such information, a fact which counsel thought.he indicated to the Board.A!

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Che information as to Decade's conduct now is in the pos-session of Westinghouse. In connection with a hearing be-i fore the Public Service Commission of Wisconsin concerning the application of Wisconsin Electric Power Company for (footnote continued) t _

Such a conversation between Westinghouse counsel and the Board Chairman clearly does not equate with.a ch'aracterization that.the Chairman was-informed " Westinghouse does not have such proof and cannot give us a deadline by which it may be expected."

In any event, this apparent misunderstanding cannot, without opportunity for a more formalized procedure, give rise to a

" finding" that the Westinghouse charges are " utterly without basis." Westinghouse remains prepared to show, based on informa-tion available to.it, that Decade previously has disclosed proprietary information in an unauthorized manner, and again re-quests the opportunity to make such showing at an appropriate time.

(footnote continued) ,

authority to replace steam generators for its Point Beach Nuclear Plant, Unit 1 and the potential financial, account-ing and ratemaking effects of. steam generator tube degrada-tion at Point Beach Unit 1 and Unit 2, the PSC granted trade secret protection to certain proprietary information owned by Westinghouse. Subsequently, the PSC issued an order approving the underlying proposal with regard to sleeving and steam generator replacement. Decade filed a motion with the Circuit Court of Manitowoc, Wisconsin, for an Order to stay the effectiveness of the PSC order on the merits until the Court resolved a petition for review filed by De-cade. As part of its motion to the Court, Decade attached an affidavit which incorporated certain of the' proprietary information that the PSC previously had determined to be a trade secret and that the PSC had placed under a protective

! order. Although Decade included a " trade secret notice" as a part of its filing to the Court, the notice appears buried between the motion itself and the attachment. Thus, from the cover of the pleading there appears no way to know that the pleading contained trade secrets. Further, when Decade filed the pleading on the open record, Decade submitted copies of the pleading to others, some of whom had not been authorized to examine it and had not agreed to protect the information.

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C. The language contained in the Conclusions of the December 21 Order (pages 24-25) which casts aspersions on Westinghouse and the NRC Regulatory Staff with regard to their concern for the "public's right to know."

On pages 24 and 25 of the Board Order, the Board castigates Westinghouse and the Staff for not having "a more healthy concern for the public's right to know." In light of these comments by the Board, Westinghouse has reread the relevant pleading in this case against the policy laid down by the Commission in 10 CFR S2.790 "to achieve an effective balance between legitimate con-cerns for protection of competitive positions and the right of the public to be fully appraised as to the basis for and effects of licensing or rulemaking actions." Apparently, the position of Westinghouse with regard to balancing and the public's right to be fully appraised was not sufficiently clear to the Board.

The Commission has recognized the legitimate public concern to protection of proprietary information. In the present case, under the balancing laid down by the Commission, the question is whether that concern for protection of a competitive position is outweighed by the right of the public to be fully appraised-as to the basis for and effects of the proposed action. In Commission proceedings, the public interest is protected by the Board, which has full access to the proprietary information, and by the Staff which also has full access to the information. In addition, on matters relating to safety, Decade, as an intervenor, has access to such proprietary information under appropriate protective orders or agreements. However, the effect of a dis-closure of proprietary information to the " general public" in reality means that the information is disclosed to Westinghouse competitors. The general.public is well represented by the Board and the Staff, and at least a portion of it is represented by Decade. Westinghouse does not divide the world into Decade and-

-Westinghouse competitors, as suggested in the Board December 21 Order. Rather, Westinghouse looks at the realities in working with the balancing test laid down by the Commission, and in that context has noted that Decade failed to, demonstrate how any public interest - the "right to know" - would be served by a general re-lease of the information.

Westinghouse, and we believe the Staff, has a concern for a proper application of the Commission's carefully constructed regulations concerning both the right of the public to be ap-praised and legitimate concerns for protection of competitive positions. Accordingly, Westinghouse requests the Board reconsider that portion of its opinion which suggests otherwise.5/

On page 7 of the December 21 Order, the Board states that t

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after comparison of the non-proprietary and original versions of the Wiesemann affidavits, it noted only two omissions.-

However, Westinghouse wants to call to the Board's attention the existence of one additional omission. On page 5 of the Supplement to Affidavit of R.H. Wiesemann, under paragraph 2 of the heading " Investment by Westinghouse in What is Sought to.be Protected," the original version contains a dollar amount indicating the investment of Westinghouse to date.

Westinghouse notes the Board previously has determined i

this figure to be proprietary and entitled to protection from public disclosure.

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Conclusion For the reasons set forth above, Westinghouse requests the i

Board to reconsider and modify its Memorandum and Order (Concern-ing Preliminary Confidentiality Issues).

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Y Westinghouse Law Department P. O. Box 355 Eck , Seamans, Cherin Pittsburgh, Pennsylvania 15230

& Mellott 42nd Floor, 600 Grant Street Pittsburgh, Pennsylvania 15219 Counsel for Westinghouse Electric Corporation, Appearing Specially Dated: December 31, 1981 i.

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