ML20049K050

Answer Supporting Westinghouse 820309 Motion for Reconsideration of ASLB 820226 Memorandum & Order. Decision on Withholding Proprietary Info Substantive & Sua Sponte Rule Applicable.W/Certificate of Svc

ML20049K050
Person / Time
Site:	Point Beach
Issue date:	03/24/1982
From:	Churchill B SHAW, PITTMAN, POTTS & TROWBRIDGE, WISCONSIN ELECTRIC POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8203290351
Download: ML20049K050 (9)

Text

OgrSim March 24, 1982 '#

. g2 rp 26 P2:ll UNITED STATES OF AKERICA ,

NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ) .

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) /cx WISCONSIN ELECTRIC POWER COMPANY ) Docket Nos. V'

) 50-266]7h 50-301 ., - ~r ,

(Point Beach Nucic r Plant, ) (OL Amendment) [l! '3, U

'g3 Units 1 and 2) )

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s LICENSEE'S ANSWER TO MOTION OF WESTINGHOUSE ss ,

FOR RECONSIDERATION OF FEBRUARY 26, 1982 MEMORANDUM AND ORDER

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Pursuant to 10 C.F.R. S 2.730(c), Wisconsin Electric Power Company (" Licensee") hereby files an answer in support of Westinghouse Electric Corporation's (" Westinghouse".) March 9, 1982 Mo. tion for Reconsideration of February 26, 1982 Memorandum and Order.

I. Background At the close of the October 30, 1981 hearing session, Intervenor Wisconsin's Environmental Decade, Inc. orally requested that the Board l

l make available for public disclosure certain proprietary test infor-mation on this docket belonging to Westinghouse relating to the structural integrity of sleeved steam generator tubes. Licensee t

asserted that such a request should be put in the form of a written motion, to put the Board and the other parties on notice of the pre-cise information sought to be released and any arguments in favor D503 5

8203290351 B20324 / /

PDR ADOCK 05000266 O PDR

4 of such release. Tr. 718-19. Intervenor refused, stating that its position was fully presented "ad nauseum" on the record, and that its complete motion and supporting brief were to be found within the pages of the transcript of the October 29-30, 1981 hearing. Tr. 720. Where upon Chairman Bloch stated for the record Decade's motion as follows (Tr. 721-22).s "I understand that Decade argues particularly that any test that was con-ducted for safety purposes must be dis-closed because it is essential to the record of the proceeding and because tests are different from proprietary processes themselves."

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In subsequent orders on confidentiality matters, the Board has stated its position that it has jurisdiction over not only those issues properly and directly raised by a party to the proceeding, but also over issues relating to the confidentiality of trade secret information that have not been raised by a party.-1/ Thus far, the Board has ruled on the confidentiality of the contents of an affidavit by Robert Wiesemann submitted to support the proprietary nature of l other' Westinghouse information, even though the confidentiality of that affidavit was not challenged by Intervenor. Memorandum and Order (Concerning Preliminary Confidentiality Issues)f dated December 21, 1981. Beyond that, however, the full extent to which the Board plans 1/ Memorandum and Order (Concerning Preliminary Confidentiality Issues),

dated December 21, 1981; Supplementary Order (Concerning Issuance of a Protective Order), dated January 7, 1982; Memorandum and Order (Con-cerning 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 Memorandum and Order (Concerning a Motion to Certify a Sua Sponte Question), dated February 26, 1982.

to rule on confidentiality issues not raised by Intervenor or any other party remains unclear. The transcript of the March 4, 1982 conference call suggests that the Board has a present interest only in the information challenged by the Intervenor --certain test data and test results in the Westinghouse Sleeving Report. See Tr. 1102; 1106; 1134. If, notwithstanding the Board's assertions of broader authority, the Board's actual inquiry is limited to the issue raised by the Intervenor, Licensee's concerns regarding the adverse impact on its interests will be substantially assuaged.

By a " Motion to Certify Sua Sponte Question to Commission" dated February 23, 1982, Westinghouse petitioned the Board to certify to the Commission pursuant to 10 C.F.R. S 2.718(i) the Board's determination with respect to sua sponte as set forth on page 9 of its February 2, 1982 Memorandum and Order (Concerning th.e Burcen of Going Forward on Confidentiality Issues), or -s in the alternative -

to forward a copy of its order to the Office of the General Counsel and to the Commission pursuant to 10 C.F.R. S 2.730(f) and the Com-mission Memorandum, Chilk to Rosenthal, Cotter and Bickwit, " Raising of Issues Sua Sponte in Adjudicatory Proceedings", dated June 30, 1981 (" June 30 Commission Memorandum") . On February 26, 1982, the Board issued a Memorandum and Order denying Westinghouse's motion.

l That denial gave rise to Westinghouse'; March 9, 1982 Motion For i

Reconsideration. .

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II. Discussion The Board's position appears to be that the Commission's sua sponte rule is inapplicable to issues which are merely procedural, rather than substantive, and that the determination of whether proprietary infermation should be withheld from.public disclosure is a procedural issue. Licensee respectfully disagrees.

• Westinghouse has explained at length in its various filings the significant value to it of the proprietary information, and the losses which Westinghouse would suffer were the inft- ..ation to be disclosed.

Licensee also has a significant, substantive interest in the outcome

, of this issue. Licensee relies on the proprietary test data in demonstrating that sleeving is a safe, viable steam generator tube repair technique. If the Commission were to deny trade secret protection of that information, Westinghouse would have the right,.

pursuant to 10 C.F.R. S 2.790 (c) , to withdraw the information. Such action could adversely affect Licensee's ability to obtain the regula-tory approval sought, and certainly would not serve the public interest.

The Supreme Court has defined a substantive rule as one "affecting individual rights and obligations". Morton v. Ruiz, 415 U.S.

199, 232 (1974). In Chrysler Corp. v. Brown, 441 U.S. 281, 310-11 (197c!, the Court distinguished between certain " procedural" rules and " substantive" rules governing the release of proprietary informa-tion. Applying the same analysis here, any decision which goes to the release of confidential trade secrets clearly affects individual rights

and is therefore " substantive" . In any event, neither S 2.718 (i) nor the sua sponte rule nor the June 30 Commission Memorandum distinguishes between " substantive" and " procedural" issues.

The Board notes that the sua sponte rule, as embodied in i

10 C.F.R. S 2,760a, applies *ohly to substantive issues which would be decided in the initial decisg6n. However, that is too narrow a construction of the sua sponte rule, which applies to al2 aspects of licensing proceedings. For example, the sua sponte rule also appears in 10 C.F.R. S 2.104 (c) , which specifies the issues to be determined by the presiding officer in licensing proceedings, and makes no mention of the initial decision.

/ The Board also states that the sua sponte rule must be interpreted in a manner consistent with S 2.718 (i) (prescribing the powers of the presiding officer) and S 2.790 (b) and (e)

(Commission's policy on withholding confidential information; pre-siding officer's responsibilities). The sua sponte limitation at SS 2.104 (c) and 2.760a is straightforward

" Matters not put in controversy by the parties will be examined and decided by the pre-siding officer only where he or she determines that a serious safety, environmental or common defense and security matter exists". The mandate to the presiding officer at S 2.718 to conduct "a fair and impartial hearing" is limited by the sua sponte rule, not the other way around; the issues concerning which the presiding officer will conduct the hearing are limited by the sua sponte rule. The powers delegated to the presiding officer at S 2.718 do not include resolution of confidentiality issues or oversight of the NRC Staff (to whom

- i the Board concedes authority for the determination of confidentiality has been delegated.-2/

The Board reads S 2.790 (e) expansively as empowering the Board to rule on " proposals" of confidentiality. Section 2.790 (e) authorizes the presiding officer, if any, or the Commission to issue orders consistent with the provisions of S 2.790 and S 2.740(c).

Section 2.790 (e) must be read in conjunction with SS 2.104 (c) and 2.760a which clearly and unequivocally limit the presiding officer's jurisdiction to matters placed in issue by the parties or by the Board pursuant to the limitations of the sua sponte rule.

Policy considerations and fundamental notions of fairness and v due process also are reflected in the limitation on sua sponte issues.

The sua sponte rule, as well as the Commission's June 30 Memorandum, reflect the Commission's concern that Staff and Licensing Board resources be focused on those issues where they will be most productively-utilized in the protection of public health and safety.

2/ To the extent the Board concedes that the Staff'has been delegated authority to make the confidentiality determinations pursuant to

, S 2.790, the Board's assertion of authority sua sponte to review such

( determinations runs afoul of Texas Utilities Generating Co. (Commanche

! Peak Steam Electric Station, Units 1 and 2) CLI-81-36, NRC i (December 29, 1981). In another context, the Appeal' Board in dicta l

stated that a licensing board lacked authority to make a "sIgnificant l changes" determination for purposes of an antitrust review at operating license stage because that authority had been delegated to the Direc-tors of Nuclear Reactor Regulation and the Office of Nuclear Material Safety and Safeguards. Florida Power & Light Co. (St. Lucie Plant, Unit No. 2), ALAB-66L NRC (December 3, 1981). Where an issue (the resolution of which is specifically delegated to the Staff) is not placed in controversy by a party, a licensing board simply has no jurisdiction to usurp the Staff's authority, i

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III. Conclusion For all of the above reasons, Licensee respectfully submits that the Board should reconsider its February 26, 1982 Memorandum and Order, and should forward copies of its orders relating to whether or not the Board is undertaking a sua sponte review of proprietary matters to the Office of General Counsel and to the Commission, for appropriate determination, pursuant to the directives of the Commission's June 30 Memorandum.

The Board concedes that it has raised matters beyond those properly put into controversy by Intervenor, but asserts that those

, matters are outside the intent of the sua sponte rule. While the Board may appropriately make such a determination in the first instance, where -- as here -- that determination is challenged, the Board's position should' be forwarded to the Office of General Counsel and to the Commission, in furtherance of the Commission's intent as mani-fested in its June 30 Memorandum.

Accordingly, the alternative motion of Westinghouse, dated February 23, 1982 -- the subject of the March 9, 1982 Motion for Reconsideration -- should be granted.

Respectfully submitted, SHAW, PITTMAN, POTTS & ROWBRIDGE By ktuck k t.uff Bruce W. Churchill, P,Cs / W Delissa A. Ridgway /

Counsel for Licensee 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Dated: March 24, 1982

UNITED STNIES OF AMERICA NUCLEAR REGULNIORY CCEMISSIN Be' fore the Atomic Safety and Licensing Board In the Matter of )

)

WISCONSIN ELECTRIC POWER COMPANY ) Docket Nos. 50-266

) 50-301 (Point Beach Nuclear Plant, ) (OL Amendment)

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Answer to Motion of Westinghouse for Reconsideration of February 26, 1982 Memorandum and Order," dated March 24, 1982, were served, by deposit in the U.S. Mail, first class, postage prepaid to those on the attached Service List, on this 24th day of March, 1982.

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. L JohYH . O'Neil ,

/Jr .

Dated: '4 arch 24, 1982 l 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

) 50-301 (Point Beach Nuclear Plant, ) (OL Amendment)

Units 1 and 2) )

SERVICE LIST l

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

Atomic Safety and Licensing Office of the Executive Board Panel Legal Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Easington, D.C. 20555 Washington, D.C. 20555 Dr. Hugh C. Paxton Richard G. Bachmann, Esq.

1229 - 41st Street Office of the Executive Los Alamqs, New Mexico 87544 Legal Director U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline -

Wasington, D.C. 20555 Atomic Safety and Licensing Board Panel Kathleen M. Falk, Esq.

U.S. Nuclear Regulatory Commission Wisconsin's Environmental Decade Washington, D.C. 20555 114 North Carroll Street Suite 208 Atomic Safety and Licensing Madison, Wisconsin 53703 Board Panel U.S. Nuclear Regulatory Commission Francis X. Davis, Esq.

Washington, D.C. 20555 Monroeville Nuclear Center Westinghouse Electric Corporation Atomic Safety and Licensing P. O. Box 355 Appeal Board Panel Pittsburgh, PA 15230 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Barton Z. Cowan, Esq.

John R. Kenrick, Esq.

Docketing and Service Section Eckert, Seamans, Cherin & Mellott Office of the Secretary Forty-Second Floor U.S. Nuclear Regulatory Commission 600 Grant Street iashington,.D.C. 20555 Pittsburgh, PA 15219

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