ML20126E003

Further Response to Appeal Re Partial Denial of FOIA Request for Documents Re GE PRA for GESSAR-II Standardized Plant Design.App Lists Documents Responsive to Request

ML20126E003
Person / Time
Site:	05000447
Issue date:	04/04/1985
From:	Felton J NRC OFFICE OF ADMINISTRATION (ADM)
To:	Curran D, Jordan W HARMON & WEISS
Shared Package
ML20126E006	List: ML20126E003 ML20126E019
References
FOIA-84-175, FOIA-84-A-66 NUDOCS 8506150267
Download: ML20126E003 (2)

Text

1. %, UNITEJ STATES 8 NUCLEAR REGULATORY COMMISSION \

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\,..... Ac 50 Diane Curran, Esquire APR04t*m William S. Jordan, III Esquire Harmon, Weiss & Jordan 2001 S Street, NW IN RESPONSE REFER Suite 430 TO FOIA-84-A-66 Washington, DC 20009 (F0!A-84-175)

Dear Ms. Curran and Mr. Jordan:

This is in further response to your letter dated August 6,1984, in which you appealed the partial denial of Mr. Steven Sholly's Freedom of Information Act reauest for documents concerning General Electric Company's (GE) Probabilistic Risk Assessment (PRA) for the GESSAR-II standardized plant design.

GE recently informed us that it was relinquishing its proprietary claim to additional information contained in some of the documents subject to your request. The enclosed appendix to this letter identifies the specific documents. Accordingly, NRC is releasing the pages that contain the information for which GE has relinquished its claim. These pages are enclosed.

Sinc rely,

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M. Felton, Director Division of Rules and Records Office of Administration

Enclosures:

As stated

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8506150267 050404 PDR FOIA CURRAN 04-A-66 PDR

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FOIA-84-A-66 APPENDIX

1. Undated GESSAR II Appendix 15D.3-BWR/6 Probabilistic Risk Assessment

2. 7/16/82 Letter to R. Frahm from K. W. Holtzclaw re: 238 Nuclear Island Probabilistic Risk Assessment Report

3. 12/3/82 PRA Update - revision pages

4. 5/17/84 Letter to D. G. Eisenhut from J. F. Quirk re:

Source Term Sensitivity Study i

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HARMON, WEISS 8c JORDAN 2004 S STREET N.W.

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WASHINOTow, D.G. eoooo l OAIL McORCEVY HARMON TELEPHONE i ELLTH M. WE6SS (202)328 3500 WILLIAM S. JORDAN, lit

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$'EANn.TOu5 ley HAND DELIVERED August 6, 1984 William Dircks gg OF INITIAL FOIA DECISION Executive Director for Operations U.S. Nuclear Regulatory Commision 20555

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Washington, D.C.

SUBJ ECT: ' Appeal' o f ' Denial' of ' FOI A-86175

@c <dFy-py Dear Mr. Dirckst On March 13, 1984, Steven Sholly of the Union of Concerned Scientists (UCS) submitted to NRC a Freedom of Information Act request for the Probabilistic Risk Assessment (PRA) performed  !

by the General Electric Company for its GESSAR II standardized  !

plant design, f or any NRC-sponsored reviews of the PRA, and for identification of the reviewing organizations and contract details. A copy of that letter is attached.

When the NRC did not respond to Mr. ShcIly's request in a j' timely manner, UCS appealed the failure to respond in a letter to you dated April 5, 1984. J. M. Felton of the Division of Rulen and Records finally responded to Mr. Sholly's original '

I requent and to the April 5 appeal on June 25, 1984. Mr.

Felton's response identified and denied four documents, and stated that the review of additional documents responsive to Mr. Sholly's request was " continuing." Mr. Sholly has received I no further correspondence from Mr. Felton.

llaving appealed the NRC's original failure to make a timely response to Mr. Sholly's FOIA request, UCS is entitled to bring i this matter directly before a federal District Court. 5 U.S.C.

5 552(a)(6)(C). Ilowever, we have chosen to take an additional administrative appeal of Mr. Felton'a response letter, because l we believe you will agree that he has not provided adequate or connintent justification for denial of these documents. We also appeal once more the Commission's failure to complete its response to this requent within the statutory time frame required by the Freedom of Information Act, 5 U.S.C. S 552(a)(6)(A)(i).

4 S e z -2 2 0 t W Qe.

.' . i HARMON, WEISS & JORDAN William Dircks August 6, 1984 Page Two Mr. Felton's June 25 letter identifies and denies in their entirety four documents: the PRA and three reviews of the PRA l by the Brookhaven National Laboratory. Although Mr. Felton's letter does not specifically identify the FOIA exemption claimed, he apparently invokes exemption 4 of the Act, which protects trade secrets and commercial or financial information obtained from a person and privileged or confidential.

5 U.S.C. 5 552(b)(4). Mr. Felton does not claim that the documents constitute ' trade secrets," and none of the documents fits the description of a trade secret given by the U.S. Court '

of Appeals for the District of Columbia:

j an unpatented, commercially valuable plan, appliance, formula, or process, which is used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities.

Public Citizen Health Research Group v. FDA, 704 F.2d 1280,

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1287 (D.C. Cir. 1983). Rather, Mr. Felton claims that disclosure of the materials could cause " substantial harm to the competitive position of the General Electric Company."

Thus, he appears to invoke the second prong of exemption 4, for confidential commercial or financial information that is obtained from a person.

However, Mr. Felton has not satisfied the second prong of exemption 4 because he has not shown that the materials are actually confidential, i._e., that the release of the materials would cause substantial harm to GE's competitive position. Id.

at 1290. A significant amount of the information being withheld is already available to the public, and thus disclosure of these documents would have little effect on the ability of competitors to obtain the information they contain.

" Clearly, if the information is already available to .

competitors, then,it does.not qualify as confidential." United Technologies Corp. v. Marshall,.464,F. Supp. 845,,852 (D. Ct.

1979), citing Hughes Aircraft Company v. Schlesinger, 384 F.

Supp. 2 92, 297 (C.D. Cal.19 74) .

GE and the NRC have already released -- and thus made available to GE competitors -- a significant amount of information related to the GESSAR PRA. The NRC released one of

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. e HARMON, WEISS & JORDAN william Dircks .

August 6, 1984 Page Three the Brookhaven review gocuments, virtually in its entirety, to another FOIA requester , and it has held at least one open meeting discussing the contents of the GESSAR PRA in detail.

The Brookhaven document that has been released discusses the contents of the PRA in detail and demonstrates that GE's claim to a level of " detail, sophistication, and NRC acceptance which is not remotely approached with respect to BWR's by GE's present or potential competitors" is highly inflated.

According to Brookhaven, GE used the MARCH, CORRAL, and CRAC codes as the bases for its source term and consequence analyses. All three of these codes were developed for NRC and are available in NRC publications and technical literature.

The versions of these codes used by GE are not highly sophisticated, state-of-the-art codes, but have been used for many years. There is thus simply no basis to GE's claim that release of these materials will have a substantial detrimental effect on its competitive position in the marketplace.

Moreover, some of the methodologies that GE would like the NRC to protect as proprietary information were developed at government expense. Such government-generated information is not exempt from disclosure under the Freedom of Information Act. Consumers Union of United States,'Inc. 'v. Veterans' Adalnlstration, 301 F. Supp. 796, 803 (S.D.N.Y. 1969). If anything, the NRC's refusal to disclose GE's use of PRA-related

, codes developed at government expense constitutes an illegal j and unwarranted subsidy of GE.

i

! The Brookhaven report also discusses some of the PRA's I input assumptions in great detail. Many of these assumptions are not design-specific, but relate to standardized concepts j regarding nuclear power plant accidents. Other assumptions, i although somewhat design-dependent, do not involve the use of l

detailed design information which might be proprietary or i confidential. Their disclosure would reveal little information that,is,ngt,already,widely known in the industry. Moreover, l

l

! * " Review and Evaluation of'the GESSAR-II Probabilistic Risk j Assessment - Containment Failure Modes and Fission Product

! Release," Letter Report by Accident Analysis Group, Department of Nuclear Energy, Brookhaven National Laboratory (July 27, .

1983). This is identified as document i 3 in Mr. Felton's June

! 25 response to Mr. Sholly. It was released to Susan Hiatt on

! January 3, 1984 in FOIA-83-460.

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.- s' HARMON, WEISS & JORDAN William Dircks August 6, 1984 Page Four any design-specific assumptions should be available to the public, since GE has not claimed the plant design itself as proprietary information.

The Brookhaven report also contains a great deal of information on the results of the PRA. Although specific figures have been deleted from the tables, PRA results are described and discussed in the text. In any event, competitors could obtain approximately the same results by using the methodologies and assumptions as described in the 3rookhaven study.

Inconsistent positions taken in the past by GE and NRC with regard to the confidentiality of the GESSAR PRA and related documents raise serious questions about the sincerity and veracity of GE's claim that release of the information will cause " substantial" harm to its competitive position. GE and NRC officials have orally stated to UCS that they are not interested in protecting the results of the PRA, but only the methodology. Yet, the Brookhaven Laboratory study released by the NRC discusses the methodology in great detail, but it omits many of the results. Although GE and NRC now claim complete confidentiality for the PRA, they participated in an open ACRS meeting on April 22, 1983, in which the methodology and assumptions used in the PRA were discussed in great detail.

The transcript of that meeting is publicly available. Having permitted the release of so much of the PRA-related information in the past, GE and NRC are no longer in a position to claim that the requested materials are confidential.

As discussed above, Mr. Felton has failed to provide adequate justification for the denial of the requested documents under exemption 4 of the FOIA. Moreover, he has f ailed to satisfy the Act's requirement to release " reasonably segregable" portions of the documents. 5 U.S.C. S 552(b). Any changes that GE has made to publicly available assumptions and methodologies could easily be segregated from other parts of the PRA. Yet, the NRC has not made the slightest attempt to identify releasable portions of the documents.

In addition to the requirements of the Freedom of Information Act, strong policy reasons compel the release of I

HARMON, WExss & JORDAN William Dircks August 6, 1984 Page Five these documents to the public. The GESSAR PRA is being used to obtain a generic license that will be valid over the next ten years. The quality of this license application will therefore be critical to the safety and reliability of any individual plants that are licensed pursuant to this standardized design.

For this reason, it should be opened to the closest scrutiny possible. GE's sudden and inconsistent attempts to protect the confidentiality of its PRA and related review documents may demonstrate more of a wish to hide flaws in the GESSAR PRA from public scrutiny than a need to protect valuable business secrets. As a matter of policy, the NRC should make the GESSAR PRA and related review documents available to the public, with the exception of only those limited portions that GE can demonstrate are truly confidential. The NRC must not endorse and promote GE's blanket attempts to shield this vital safety information from the public eye.

Moreover, although no regulatory requirement for PRAs exists now, we understand that the NRC intends to use the GESSAR PRA to evaluate and perhapo require changes in the GESSAR standardized plant design. If this is true, then the PRA is a part of the design application that must be made available for public review and comment under the hearing requirement of the Atomic Energy Act, 42 U.S.C. 5 2239(a)(1).

The public's right to a hearing on the safety of the standardized plant design will effectively be denied if important supporting information is withheld from public scrutiny.

As far as we know, this is the first PRA that has been withheld by NRC as confidential commercial information. If, as recent NRC regulatory proposals indicate, the commission intends to use PRAs to evaluate design adequacy in the future, it should be prepared to share that information with the public as required by the hearing provision of the Atomic Energy Act.

If it intends to protect such information from public scrutiny, it should reconsider its intention to uso PRAs as licensing documents.

We look forward to receiving your response within the 20 working days permitted by the statute. If UCS does not receive a full response, with either complete disclosure or substantial

,J HARMON. WEISS & JOEDAN William Dircks August 6, 1984 Page Six 1

justification for deletion of minor portions of the documents, l we intend to pursue this matter in federal court.

i Sincerely, Diane curran

/- JY William ordan, III Attorneys for Union of Concerned Scientists 4k*

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JUN 251984 Mr. Steven Sholly Technical Research Associate Union of Concerned Scientists 1346 Connecticut Avenue, NW IN RESPONSE REFER Washington, DC 20036 TO F0!A-84-175

Dear Mr. Sholly:

This is in further response to your letter dated March 13,1984,and your April 5,1984 appeal, requesting documents relating to GESSAR-II.

The four documents listed on Appendix A are being withheld in their entirety as release of t,his information could cause substantial harm to the competitive position'of the General Electric Company in that GE maintains:

1. The GESSAR-II PRA is the only Level 3 PRA which has been perfomed by an NSSS vendor at its own cost. The GESSAR-II PRA will be the first Level 3 PRA approved for a Standard Nuclear Island Design.

As such, its market valuc far exceeds the total cost. GE intends to utilize the information and analyses in the PRA as the major portion of plant-specific analyses for BWR/6 plants which are currently operating, are under construction, and for future plant sales. Total resources expended by GE in perfoming the PRA, preparing the required submittals, and supporting the PRA review ,

amount to millions of dollars;

2. The performance of probabilistic risk assessments is a highly competitive market. The information in this PRA represents a level of expenditure, detail, sophistication, and NRC acceptance which is not remotely approached with respect to BWR's by GE's present or potential competitors. Accordingly, public disclosure of this infomation would pemit competitors or potential customers to utilize this information at no cost and would thereby deprive GE not only to seek reimbursement of its expeditures but also an economic competitive advantage by allowing competitors to copy the j design at little or no cost; and I

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3. The three.NRC contractor (Brookhaven National Laboratory) reports .

also contain GE proprietary infomation and are being withheld in their entirety for the same reasons stated above.

The NRC has reviewed General Electric's proprietary cla'im and agrees that the infomation involved is proprietary.

These documents are being withheld from public disclosure pursuant to

.10Exemption CFR 9.5(a) 4)(4)(of of thethe Freedomregulations.

Commission's of Infermation These Act (5 U.S.C.

documents do 552(b)(4)) and not contain any reasonably segregable factual portions.

Pursuant to 10 CFR 9.9 of the Comission's regulations, it has been detemined that the infonnation is exempt from production or disclosure, and that its production or disclosure is contrary to the public interest.

The persons responsible for this denial are the undersigned and Mr.

Harold R. Denton, Director, Office of Nuclear Reactor Regulation.

This denial may be appealed to the Comission's Executive Director for Operations within 30 days from the receipt of this letter. As provided in 10 CFR 9.11, any such appeal must be in writing, addressed to the Executive Director for Opbrations. U.S. Nuclear Regulatory Commission.

Washington, DC 20555, and should clearly state on the envelope and in the letter that it is an " Appeal from an Initial FOIA Decision."

) The review of additional documents related to your request is continuing.

You will be notified at the completion of this review.

Sinc ely,

/ 7 M

elton, Director Division of Rules and Records Office of Administration

Enclosure:

Appendix A i

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.'- . t. F0IA 84-175 APPEN0!X A ,

1. GE55AR 11 Probabilistic Risk Assessment (PRA) .

2. BNL Memo dated 5/5/83 " Status of GESSAR PRA . Review."

3. BNL Letter Report " Review and Evaluation of the GESSAR 11 PRA -

Containment Failure Modes and Fission Product Release." 7/27/83.

4. BNL Letter Reprt " Review of GESSAR II Probabilistic Risk Assessment, undated.

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13 March 1984 RMATION Mr. d. 11. Felton, Director CT R S Division of Rules and Records Office of Administration N

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U.S. Nuclear Regulatory Commi'ssion Tag. Q 8-/f-/g W2shington, D.C. 20555 RE: Freedom of Information Act Request for the GESSAR-II Probabilistic Risk Assoccmont and Associated NRC and NRC-contractor Reviewn of that Report (Sholly FOIA Requent. Number 84-07)

Dear Mr. Felton:

s.

Pursuant to the Freedom of Infortration Act, pleano make Cvailable at the comminnion's Public Document Room at 1717 H Street, O.W. , Washington, D.C. , copics of documento in the following categories:

A. A copy of the General E1uctric Probabilistic Rink Assensmont for the GESSAR-II standard plant donign (BWR/6 !! ark III) , and all updaten, amendments, appendices, addenda, supplemento, and all other changen thereto. .

D. Copion of all NRC ntaff reviewn of the documento doncribed above in "A".

C. Copics of all NRC contractor reviews of the documento doncribed above in "A". .

For any review identified under "C" above, provido D.

the name of the reviewing organization, the load -

investigatorn, all other investigatorn, the NRC Contract and FIN numborn annigned to the review project, the funding provided for the review project, and the NRC Form 189 for each such project.

If there are any questions regarding this request, planso contact me at 296-5600. It is my understanding that a proprietary claim has been made with respect to some or all of the documents identified in "A" above. This requent specifically includen a request to review the banes for the priprietary cinim and relcano all of the documents discussed in "A" above. g*pg ,

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'nwr definition of " trade secret" is also relatively' narrow. It has been defined as an " unpatented, secret, cermercially valuable plan, appliance, formula or process sich is used for the making, preparing, cartpounding, treatirn or processirn of articles or materials which are trade cwiicaitics.

Consuurs Union, supra, 3)1 F.Supp. at 101.

It is irpossible to believe that all of the Gessar PFA is legally exerrpt from disclosure 'inder this standard. Ibr one thing, the Gessar design is not

" secret" since it is subject to NFC rcriew ard public scrutiny. In addition, it is my understanding that the codes being ut,cd are primarily gublicly-availabic codes.

I would' appreciate your response as soon as possibic.

.. Sincerely, t .

t.

El R. Weisc General Counsel Union of Ccocorned Scientints Enclosure 1

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