ML20041G166

Motion for Consideration of Portion of ASLB 820226 Memorandum & Order in Which ASLB Refused to Forward Determination Re Sua Sponte to Question to Ofc of General Counsel & Commission.Certificate of Svc Encl

ML20041G166
Person / Time
Site:	Point Beach
Issue date:	03/09/1982
From:	Cowman B, Davis F, Kenrick J WESTINGHOUSE ELECTRIC COMPANY, DIV OF CBS CORP.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OLA, NUDOCS 8203190345
Download: ML20041G166 (12)

Text

"

D O. W,E,T.rn UNITED STATES OF AMERICA '32 g j j pj2 :36 NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of e WISCONSIN ELECTRIC POWER COMPANY  : Docket Nos. 50-266-OLA

50-301-OLA (Point Beach Nuclear Plant,  : 9

• 4 Units 1 and 2)

NG #

%t 9 y

I MOTION OF WESTINGHOUSE ELECTRIC CORPORATION # /

APPEARING SPECIALLY, FOR RECONSIDERATION Of- I FEBRUARY 26, 1982 MEMORANDUM AND ORDER \o 46 c2

/

<%\

/b 4

, \ n' Westinghouse Electric Corporation ("Westingho ,

appearing specially in the above-captioned proceeding, hereby moves the Atomic Safety and Licensing Board (" Board") to re-consider that portion of its Memorandum and Order (Concerning a Motion to Certify a Sua Sponte Question), dated February 26, 1982 (" February 26 Order"), in which the Board refused to for-3 ward a copy of the Board's determination with respect to the sua sponte question to the Office of the General Counsel and to the Commission for appropriate determination by the Commis-sion. Westinghouse requests that the Board forward to the 1

General Counsel and the Commission copies of the Board orders 1

The specific orders include the Memorandum and Order (Con-cerning Preliminary Confidentiality Issues), dated December 21, 1981; Supplementary Order (Concerning Issuance of a Protective Order), dated January 7, 1982; Memorandum and {)$O3 3

/ /

8203190345 820309 gDRADOCK 05000266 PDR

in which the Board has asserted the sua sponte rule is not applicable to the inquiry which is being undertaken by the Board into areas relating to proprietary information beyond those raised by the intervenor.

BACKGROUND 4

On February 23, 1982, Westinghouse filed a Motion To Certify Sua Sponte Question to Commission. That motion requested the Board to certify to the Commission the Board's determination with respect to sua sponte as set forth on page 9 of the Memorandum and Order (Concerning the Burden of Going Forward on Confidentiality Issues) dated February 2, 1982. In the alternative, Westinghouse in its motion re-quested the Board to forward a copy of its order to the Office of the General Counsel and to the Commission for appropriate determination by the Commission pursuant to 10 C.F.R. S 2.730 (f) (1981) and the Commission Memorandum, Chilk to Rosenthal, Cotter and Bickwit " Raising of Issues (Footnote 1 continued.)

Order (Concerning Reconsideration of Confidentiality Issues),

dated January 28, 1982; Memorandum and Order (Concerning the Burden of Going Forward on Confidentiality Issues), dated February 2, 1982; and the February 26 Order. The Board rul-ings on the question of whether the Board action is an exer-cise of its sua sponte power are scattered throughout these orders, especially on pp. 14, 18-19, 25-27 of the December 21, 1981 Order; pp. 4-7, 10 of the January 28, 1982 Order; pp. 8-10 of the February 2, 1982 Order and the entire February 26 Order.

Sua Sponte in Adjudicatory Proceedings", dated June 30, 1981

(" Commission Memorandum").

The Board, in its February 26 Order, denied the Westinghouse motion of February 23. (The other parties to this proceeding were not afforded the time allowed by the Rules of Practice for response to the Westinghouse motion prior to the Board denial.) Although the February 26 Order made clear the Board refusal to certify this matter to the Commission as requested by Westinghouse, the Board in that Order did not explicitly state whether it would follow the procedure set forth in the Commission Memorandum and forward its sua sponte determinations to the General Counsel and the Commission. Accordingly, Westinghouse moves the Board to reconsider this point and again requests the Board to forward its orders relating to the issue of whether or not the Board is undertaking a sua sponte review of proprietary matters to the Office of the General Counsel and the Commission for appropriate determination.

DISCUSSION The February 26 Order appears to take too narrow a view of the relief requested by Westinghouse in its motion of February 23, 1982. The Board appears to believe that l

f l Westinghouse merely was requesting certification of the Board determination that one passage in one document which l

[

f

Westinghouse claims to be proprietary should be released.

Thus, the Board states:

"In this case, our use of procedural authority has been limited to an order that one passage of one document should be re-leased to the public. The passage will not be released until after Westinghouse has an opportunity to appeal our order. Furt? r-more, our determination with respect to this issue is over and done with. To certify the issue to the Commission would not conserve Westinghouse's resources. No further effort by Westinghouse with respect to our ruling is called for. The issue can be fully raised on appeal.

"To bother the Commission with this mat-ter now is far from the intent embodied in the sua sponte rule." (February 26 Order, p. 2)

Westinghouse did not intend its motion of February 23, 1982 to be read so narrowly and we do not believe that the Motion was so limited.

As noted in the Westinghouse motion, the matter with which we are concerned involves the question of appro-priate treatment of test data and information in a technical document claimed by Westinghouse to be proprietary. The sole proprietary issue raised by the intervenor is whether test information in three specific chapters of'a Westinghouse sleeving-report should be accorded proprietary treatment.

The intervenor is not at this time challenging whether the

.information is proprietary but, rather, has limited its challenge to whether, assuming the information is proprietary, it should nonetheless be disclosed following balancing of rights under 10 C.F.R. 5 2.790 (b) (5) (1981). The inter-venor also did not seek public release of the underlying affidavit submitted by Westinghouse ("Wiesemann Affidavit")

to establish its claim of proprietary.

The Board has made it clear in its several orders on this subject, as well as in a series of conference calls with the parties and Westinghouse, that it will not only take up the issue as raised by the intervenor, but that it also intends to explore matters not raised or pursued by the intervenor. Among the matters which the Board has sought to consider include the proprietary nature of information for which public disclosure is not sought by the intervenor, and proprietary issues relating to the Wiesemann Affidavit. The Board position has been that it is authorized (free from any sua sponte limitations) to take up issues not raised by the intervenor as along as the issues are " procedural" rather than " substantive". This theme was repeated by the Board in its February 26 Order, as follows:

". . . we consider ourselves authorized to explore confidentiality issues even beyond those raised by an intervenor. We also believe that even were our concern substantive rather than procedural, Board inquiries within the general scope of matters already raised by an intervenor are wholly appropriate and are not affected by the sua sponte restriction." (p. 3)

Westinghouse submits that the Board cannot obviate the need to comply with the reporting requirement of the Commission Memorandum by denominating the proprietary issues l

as " procedural" rather than " substantive" or by holding that since the intervenor has raised one proprietary issue, the Board may raise other proprietary issues. Westinghouse be-lieves that such a determination should be reported to the Commission so that it may determine whether such decision com-ports with the intent of the Commission Memorandum. Westing-house submits that it does not so comport for the reasons dis-cussed briefly below. These reasons, summarized from earlier Westinghouse filings, are presented for the purpose of demon-strating that the Commission Memorandum and the Texas Utili-ties Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-36 (December 29, 1981) decision can reasonably be interpreted in a manner different from that of the Board. In such an instance, Westinghouse submits that the Board should report its decision that no sua sponte issue is involved in the instant proceeding to the Commission and the Office of the General Counsel.

Under both 10 C.F.R. S 2.104 (c) (pertaining to Board authority throughout a hearing) and 10 C.F.R. S 2.760a (per-taining to Board authority to make findings of fact and conclu-1 sions of law in the initial decision), the Board may only con-sider matters put in controversy by the parties unless the Board has determined that a " serious safety, environmental, or common defense and security matter" has not been raised by the parties. In such an instance, the Board may consider such l

I L

matter. Westinghouse submits that " substantive" issues are those issues that can be fairly characterized as presenting serious safety, environmental, or common de-fense and security matters. Other matters not so charac-terized are either non-substantive or would properly be deemed to be " procedural". Westinghouse submits that such

" procedural" matters are not subject to Board considera-tion on a sua sponte basis. Moreover, in Comanche Peak, supra, the Commission ruled that licensing boards cannot properly use their safety related sua sponte powers to assume authority over procedural issues not raised by the parties to a proceeding. In Comanche Peak, the licensing board believed it needed to monitor resolution by the regulatory staff of certain safety issues which had orig-inall; ceen raised by an intervenor who was later dismissed from the proceeding. The licensing board claimed that it had sua sponte authority to monitor er otherwise to so manage the course of the Comanche Peak proceeding. The Commission disagreed and in its December 29, 1981 Order (CLI-81-36) held that such use of sua sponte authority would be inappropriate in that it would lead to a proscribed

" routine [ Board] supervision of the staff's safety review."

(Comanche Peak, Slip Opinion, p. 3) .

O I

In the instant case, in contravention of the Comanche Peak ruling, Westinghouse submits that the Board is seeking to conduct a routine supervision of the staff's proprietary review. Furthermore, Westinghouse submits that the Commission in its June 30, 1981 Memorandum of the subject of " Raising of Issues.Sua Sponte in Adjudicatory Proceedings" did not limit the reporting requirement set forth therein to sua sponte " substantive" issues in con-trast to sua sponte " procedural" issues.

Westinghouse recognizes that the Board disagrees with the arguments set forth above and has interpreted the t

Commission Memorandum differently. Westinghouse also rea-lized the Board in its February 26 Order claimed the l Comanche Peak decision was not apposite, in large part because the Board interpreted the Westinghouse motion nar-rowly to request certification only of a single issue on one passage of a document. However, Westinghouse submits that the Commission Memorandum requires the Board to report this matter to the Commission and the Office of the General Counsel so that the Commission has an opportunity to deter-mine whether the Board has properly addressed an issue which the Commission, in contrast to the Board, may find could reasonably be deemed to be a matter of the exercise of the Board's sua sponte authority.

In additicn to its " procedural-substantive" distinction, the Board also claims that even if its concerns are substantive, its inquiry is not affected by the sua sponte restriction because they are within the general scope of matters already raised by an in-tervenor. Westinghouse respectfully submits that the Board has improperly characterized the scope of its in-quiries, and that the Board in its orders clearly has demonstrated it intends to inquire into proprietary issues beyond those raised by the intervenor,2 and also intends to review and rule on the proprietary status of material and documents which are not being questioned by the intervenor. The Bcard also has made it clear 2

In deciding to take up the issue of public release of the Wiesemann Affidavit, the Board said "Now we come to an issue that Decade [the intervenor] has not raised."

The Board then ruled that it was required to take up the issue, concluding that "There is no requirement that Decade have any interest in this matter" (December 21, 1981 order, p. 18). In another order, the Board claimed "the issue was raised by [the applicant] " when it pro-posed withholding of the Westinghouse document (January 28, 1982 order, p. 4). Under this interpretation, noth-ing would be sua sponte, since the applicant could be said to be raising every issue by applying for a license and submitting safety analysis reports in support of its application.

3 Thus the Board, after noting that " Decade has restricted its interest to the disclosure of chapters 6, 7 and 9 of the Sleeving report" goes on to say "For the most part, our interests coincide with Decade's. However, we are also concerned about the appendices to the Sleeving Report and about marked portions (if any) of the answers to Board

by its rulings and comments that it plans to inquire into and rule (and indeed has already ruled in part) on the adequacy of procedures used by the staff in handling proprietary submittals. Westinghouse submits that the Commission Memorandum was in part designed to allow the Commission to review at an early stage whether a Board is properly staying within the bounds of its authority with respect to issues not raised by an intervenor, and that it is improper in the present case for the Board not to forward to the General Counsel and the Commission an inquiry by claiming such inquiry is within the general scope of matters already raised.

Respectfully submitted,

/s/ Barton Z. Cowan

/s/ John R. Kenrick

/s/ Francis X. Davis /JRK Counsel for Westinghouse Electric Corporation Date: March 9, 1982 (Footnote 3 continued.)

questions and Decade interrogatories - to the extent these '

materials deal with safety tests. Also, we reserve the right to become concerned about any portion of the San Ono-fre Sleeving Report, submitted as part of our record, which might be directly relevant to the mutual decision in this case." (February 2, 1982 Order, pp. 8-9)

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of  :

WISCONSIN ELECTRIC POWER COMPANY  : Docket Nos. 50-266-OLA

50-301-OLA (Point Beach Nuclear Plant,  :

Units 1 and 2)  :

CERTIFICATE OF SERVICE I hereby certify that copies of the " Motion of Westinghouse Electric Corporation, Appearing Specially, for Reconsideration of February 26, 1982 Memorandum and Order" have been served upon the persons listed on Attach-ment 1 to this Certificate of Service by deposit in the United States Mail (First Class), postage prepaid, this 9th day of March, 1982.

/s/ Barton Z. Cowan Barton Z. Cowan Counsel for Westinghouse Electric Corporation I

i

v Service List WISCONSIN ELECTRIC POWER COMPANY (Point Beach Nuclear Plant, Units 1 and 2)

Peter B. Bloch, Esq., Chairman Stuart A. Treby, Esq.

Atomic Safety and Licensing Board Office of the Executive Legal Director '

Panel U.S. Nuclear Regulatory Commission >

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Francis X. Davis, Esq.

Dr. Jerry R. Kline Westinghouse Electric Corporation Atomic Safety and Licensing Board Nuclear Energy Systems Division Panel P. O. Box 355 U.S. Nuclear Regulatory Commission Pittsburgh, Pennsylvania 15230 Washington, D.C. 20555 Bruce W. Churchill, Esq.

Dr. Hugh C. Paxton Gerald Charnoff, Esq.

1229 - 41st Street Shaw, Pittman, Potts & Trowbridge Los Alamos, New Mexico 87544 1800 M Street, Northwest Washington, D.C. 20036 Atomic Safety and Licensing Board Panel Barton Z. Cowan, Esq.

U.S. Nuclear Regulatory Commission John R. Kenrick, Esq.

Washington, D.C. 20555 Eckert, Seamans, Cherin & Mellott 42nd Floor, 600 Grant Street Atomic Safety and Licensing Pittsburgh, Pennsylvania 15219 Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section cc: Nunzio J. Palladino, Chairman Office of the Secretary Victor Gilinsky, Commissioner U.S. Nuclear Regulatory Commission Peter Bradford, Commissioner Washington, D.C. 20555 John F. Ahearne, Commissioner Thomas M. Roberts, Commissioner Charles A. Barth, Esq. U.S. Nuclear Regulatory Commission Office of the Executive Legal Washington, D.C. 20555 Director U.S. Nuclear Regulatory Commission Leonard Bickwit, Esq.

Washington, D.C. 20555 General Counsel Office of the General Counsel Kathleen M. Falk, Esq. U.S. Nuclear Regulatory Commission Wisconsin's Environmental Decade Washington, D.C. 20555 Suite 208, 114 North Carroll Street Madison, Wisconsin 53703 Attachment 1