ML20062M011

Reply Brief to NRC 811207 Brief on ASLB Jurisdiction to Make Determinations Re Withholding Info from Public Disclosure. ASLB Has Jurisdiction But Can Only Exercise Authority Where Issue Is in Controversy.W/Certificate of Svc

ML20062M011
Person / Time
Site:	Point Beach
Issue date:	12/11/1981
From:	Churchill B WISCONSIN ELECTRIC POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8112170041
Download: ML20062M011 (7)

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DOCKETED December 11, 1981

'81 DEC 14 P4:27 UNITED STATES OF AMERICA

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NUCLEAR REGULATORY COMISSION ,

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WISCONS7N ELECTRIC POWER COMPANY ) Docket Nos. 50-266

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

Units 1 and 2) )

LICENSEE'S REPLY BRIEF TO NRC STAFF BRIEF ON JURISDICTION OF LICENSING BOARD TO MAKE DETERMINATIONS ON WITHHOLDING OF INFORMATION FROM PUBLIC DISCLOSURE In a brief filed on December 7, 1981, the NRC Staff stated that it " believes that the Board has the authority to make withholding determinations pursuant to 10 C.F.R. S 2.790(b) of the Commission's regulations." For the reasons set forth below, Licensee agrees with the Staff that the Board has authority to make withholding determinations pursuant to 10 C.F.R. S 2.790(b). However, the Board's authority can only be exercised where there is an issue in controversy raised by a party to a proceeding regarding the public disclosure of cp information claimed to be exempt from disclosure. $

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There are ~ no: cases directlyEon : point.1 <NRC[ Staff relies

?' on' Kansas Gas and" Electric =Co. (Wolf Creek Nuclear Generating-E. Station, Unit.1), ALAB-327, 3 NRC 408.(1976). Wolf > Creek stands 'for the' proposition thatia: licensing board has .jurisdic-'

F tioniover disputes between parties in a proceeding over

, proprietory cl' aims regarding information obtained by a party

through discovery. ~The Appeal Board specifically held there

that Section 2.790 of the commission's rules did not apply.

ALAB-327, supra', 3 NRC at 415. Thus Wolf Creek does not  !

. directly speak to the authority of a licensing board to make .

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! any determination under Section 2.790(b).

i 1 ' Judge Bloch referred . the parties .to two cases decided. by ,

, the DOE Office of Hearings and Appeals -- Rjt Collier, Shannon, Rill & Scott, 8 DOE paragraph 80,129, CCH Federal t EnergE_ Guidelines (May 20, 1981), and Re Exxon Company, U.S.A. and Miller & Chevalier, 8 DOE paragraph 80,162, CCH  ;

Federal Energy Guidelines-(April 1, 1981) -- which Judge i Bloch suggested " stand broadly for the proposition that when questions are raised about the public release of information, the appeal authority -- or possibly it is suggested in this case, the Board -- should make its own decision about whether the exception to the release of public information would be i- granted because of a claim of confidentiality...." Tr. 777-78.

j Both appeals were from decisions.of the Assistant '

i Administrator of the Economic Regulatory Administration of DOE denying in part requests for information. pursuant 8

to the Freedom of Information Act. The controversy raised 1 in both appeals was whether the information withheld was properly exempted by the Assistant Administrator from disclosure by finding that certain documents fell within the exempted categories. Thus,.there, the judge certainly

had authority to decide the matter in controversy. In the instant ' case, the. Board has authority to decide .the -issue raised by Decade regarding di sclosure of- certain proprietary test results. Neither of the above cases support the jurisdiction of -the 3oard to review, on its own, decisions of the

_ Staff regarding the disclosure of trade. secret material where the issue is not being litigated by a party to the proceeding.

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l As pointed out by Westinghouse Electric Corporation's brief of December 7, 1981, on the instant issue of the Board's jurisdiction, the Commission's rules carefully distinguish -

between the determinations to be made by "the Commission" in S.2.790(b)(3), (4), (5) and (6) and the protective order to be issued by the " presiding o,f ficer in a proceeding" in ,

S 2.790(b)(6)(ii). It is also clear that the Commission has delegated the authority for making the determinations in S 2.790(b), in the first instance, to the NRR Staf f. See

'Tr. 97; 791; Letter from Robert A. Clark, NRR Staff, to Robert A. Wiesemann, Westinghouse, dated November 20, 1981, (holding the information for which a proprietary claim was made by Westinghouse is properly classified as trade secret and should be withheld from public disclosure.)

Licensing boards are " delegates of the Commission and exercise only those powers which the Commission has given

[ them) . " Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2) ALAB-316, 3 NRC 167, 170 (1976); see also, Union Electric Company (Callaway Plant,

, Units 1 and 2) ALAB-527, 9 NRC 126, 144 (1979). The licensing boards are empowered to consider matters in controversy among the parties within the scope of the notice of hearing. See 10 C.F.R. S 2.104(c). While a licensing board may, on its own motion, explore issues which the parties themselves have not placed in controversy, cuch issues raised sua sponte are specifically limited only to matters involving a serious o ,

" safety, environmental, or common defense and security" question. 10 C.F.R. S 2.760(a). The decision on all other matters, even prior to issuance.of an operating license, is the responsibility of the NRC Staff alone. Consolidated Edison Co.

of N.Y. (Indian Point Nuclear Generating Station, Units 1, 2 and 3), ALAB-319, 3 NRC 188, 190 (1976). Where the NRC Staff and applicant have presented uncontested evidence on an issue, the licensing board is not required to conduct a de novo review, but rather should rely on the NRC Staff's and applicant's uncontroverted evidence. Consumers Power Co.

(Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 334-35 (1973); Boston Edison Co., (Pilgrim Nuclear Power Station)

ALAB-83, 5 AEC 354 (1972), affirmed UCS v. AEC, 499 F.2d 1069 ,

(D.C. Cir. 1974).

What we can infer from the Commission's rules and cases is that, indeed, the Board has authority and jurisdiction to determine whether information, claimed by a party to be exempt from disclosure, should be disclosed to the public, but only if ,

it is an issue in controversy raised by a party to a pro-ceeding. Clearly it is not a matter for sua sponte review. A license amendment proceeding, like an operating license proceeding, need only be held if there is an issue in contro-versy, and thus the discretion of the licensing board to explore issues which the parties themselves have not placed in controversy "should be exercised sparingly and only in extra-ordinary circumstances where the Board concludes that a serious

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safety or environmental issue remains." Consolidated Edison l Co. of N.Y.-(Indian Point Nuclear Generating Station, Unit 3),

CLI-74-28, 8 AEC 7 (1974)(incorporated into tne Commission's rules at 10 C.F.R. S 2.760(a).)

The only issue in controversy before this Board is whether certain test data regarding sleeving should be disclosed to the

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public. Tr. 721-22; 804-05; See " Decade's Reply in Opposition '

to Westinghouse's Brief to Bar it Access to Allegedly Proprietary Data" (December 7, 1981) at 3.

Wisconsin Electric submits that the Board has jurisdiction to decide the issue in controversy as stated by Decade's oral motion. . Wisconsin Electric's position on the merits of that motion are stated in " Licensee's Response to Oral Motion of Wisconsin's Environmental Decade for Disclosure of Proprietary

. Information" (November 12, 1981).

Respectfully subnitted, SHAW, PITTMAN, POTTS 4 TROWBRIDGE

\

By br~uce W. Churchill Delissa A. Ridgway Counsel for Licensee 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 e

December 11, 1981 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) )

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing "Licen' hee's Reply Brief to NRC Staff on Jurisdiction of Licensing Board to Make Determination on Withholding of Information from Public Disclosure" were served, by deposit in the U.S. Mail, first class, postage prepaid, to all those on the attached service list, this lith day of December, 1981.

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Dated: December 11, 1981 e e e *

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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 Peter B. Bloch, Chairman Charles A. Barth, Esquire $

Atomic Safety and Licensing Office of the Executive Board Panel Legal Director U.S. Nuclear Regulatory U.S.. Nuclear Regulatory Commission Commission.

Washington, D.C. 20555 Washington, D.C. 20555 Dr. Hugh C. Paxton Kathleen M. Falk, Esquire 1229 - 41st Street Wisconsin's Environmental Los Alamos, New Mexico 87544 Decade 114 North Carroll Street' Dr. Jerry R. Kline- Suite 208 ,

Atomic Safety and Licensing Madison, Wisconsin 53703

- Board Panel Stuart A. Treby, Esquire U.S. Nuclear Regulatory Office of the Executive Commission Legal Director Washington,.D.C. 20555 U.S. Nuclear Regulatory.

Atomic Safety and Licensing Wa D.C. 20555 Board Panel U.S. Nuclear Regulatory Francis X. Davis, Esq.

Commission Westinghouse Electric Corporation Washington, D.C. 20555 Nuclear Energy Systems Division P. O. Box 355

' Atomic Safety and Licensing Pittsburgh, Pennsylvania 15230-Appeal Board Panel U .' S . Nuclear Regulatory Com:nission Washington, D.C. 20555 - - -

Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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