ML20133A239
| ML20133A239 | |
| Person / Time | |
|---|---|
| Site: | 05000447 |
| Issue date: | 05/03/1985 |
| From: | Felton J NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Curran D, Jordan W HARMON & WEISS |
| Shared Package | |
| ML20133A243 | List: |
| References | |
| FOIA-84-175, FOIA-84-A-66 NUDOCS 8507200043 | |
| Download: ML20133A239 (3) | |
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/ \ o UNITED STATES NUCLEAR REGULATORY COMMISSION b
$ .t WASHINGTON. D. C 20555
.....! EAY 0 81985 Diane Curran, Esquire William S. Jordan, III, Esquire Harmon, Weiss & Jordan IN RESPONSE REFER 2001 S Street, NW TO F01A-84-A-66 Suite 430 (F01A-84-175)
Washington, DC 20009
Dear Ms. Curran and Mr. Jordan:
This responds to the comments in the Union of Concerned Scientists' (UCS)
Motion for Sumary Judgment in UCS v. NRC, No. 84-2833 (D.D.C.) in which it was asserted that ten categories of information in the GESSAR-II Probabilistic Risk Assessment (PRA) documents could be released without causing General Electric Company (GE) competitive harm. (Declaration of Steven C. Sholly 1 22). UCS bases this assertion on its belief that GE's competitors could not submit the material in the ten categories to the NRC without documentation and could not use this material by itself to reproduce the other proprietary parts of the PRA.
On January 31, 1985, Mr. W. J. Dircks partially denied your request for information in the GESSAR-II PRA documents. This denial encompas'ied portions of the ten categories of information UCS is presently disputing. Some ,
information in Categories "e" and "g" had already been released to you in my
,a letter dated December 3, 1984. Mr. Dircks reaffimed his denial of the swithneld portions on April 19, 1985.
Specifically, he fcund that thc withneld material was exempt fron public disclosure pursuant to Exemptier (4) of the Freedom cf Infernatier Act (5 U.S.C. 552 b)W.) anc K CFR 9.5(a)(4) :1 the Co d ssion's regui r. ions tecause release of the material would be likely tc cause GE substantial competitive harm.
The NRC staff hasireviewed UCS's new assertions and has found no basis on which to recom6nd that Mr. Dircks reverse his determination. The staff has determined that GE's competitors could use the information in the withheld portions of the ten categories to determine the methods of approach in perfoming a BWR/6 PRA. The information would also enable GE's competitors to concentrate their efforts on areas where their results differ significantly from GE's results and thereby reduce the effort necessary to produce a PRA.
In addition, GE has stated in a sworn affidavit that it has used the withheld information in the ten categories to obtain PRA service contracts.
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Based on the staff analysis and Gels affidavit, we find no basis to recomend that Mr. Dircks reverse his decision to withhold the material in the ten categories identified by UCS.
8507200043 850503 :
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. i Ms. Curran and Mr. Jordan In addition, GE recently informed us that it was again 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.
S' cerely, 3)f J. .klton, Director Division of Rules and Records Office of Administration
Enclosures:
- 1. M. Rubin Declaration w/o attachments
- 2. D. Hankins Affidavit
- 3. Appendix
- 4. Released information i
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_ _ _ _ . = .- __ _. __ _. . . . - _ __ _. . - . .
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l FOIA-84-A-66 1.
APPENDIX
-1. 12/3/82 PRA Update - revision pages
- 2. 7/16/82 Letter to R. Frahm from K. W. Holtzclaw Re: 238 Nuclear Island Probabilistic Risk Assessment Report J
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- 3. o HARMON, weiss & JORDAN 2001 S STREET, N.W.
SulTE 430 WASHINGTON, D.C. soooo G All McGREEVY H ARMON TELEPHONE ELLYN R. WEISS (2023328-3500 WILLI AM S. JORD AN,111
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ocANnfTousLEy HAND DELIVERED August 6, 1984 ecut ve rector for Operations MEEAl. OF INITIA!. FOIA DECISION U.S. Nuclear Regulatory Commision 20555 ['/--4-66 E6FtH75\/
Washington, D.C.
SUBJ ECT: Appeal of Denial of FOIA-84-175
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Dear Mr. Dircks:
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 che 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. Sholly's request in a timely manner, UCS appealed the failure to respond in a letter to you dated. April 5, 1984. J. M. Felton of the Division of Rules and Records finally responded to Mr. Sholly's original request 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 no further correspondence from Mr. Felton.
Having appealed the NRC's original failure to make a timely response to Mr. Sholly's FOIA request, UCS is entitled to bring this matter directly before a federal District Court. 5 U.S.C.
S 552(a)(6)(C). However, we have chosen to take an additional administrative appeal of Mr. Felton's response letter, because we believe you will agree that he has not provided adequate or consistent justification for denial of these documents. We also appeal once more the Commission's failure to complete its response to this request within the statutory time frame required by the Freedom of Information Act, 5 U.S.C. S 552(a)(6)(A)(i).
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HARMON, WEISS & JORDAN William Dircks August 6, 1984 Page Two I
Mr. Felton's June 25 letter identifies and denies in their entirety four documents: the PRA and three reviews of the PRA by the Brookhaven National Laboratory. Although Mr. Felton's l 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. S 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:
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, 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., tnat 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. 292, 297 (C.D. Cal. 1974).
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
HARMON, WEISS & JORDAN William Dircks August 6, 1984 Page Three the Brookhaven review documents, 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' Administration, 301 F. Supp. 796, 803 (3.D.N.Y. 1969). If anything, tne NRC's refusal to disclose GE's use of PRA-related codes developed at government expense constitutes an illegal and unwarranted subsidy of GE.
The Brookhaven report also discusses some of the PRA's input ascunpticn in great detail. Many of these assumptions are not design-specific, but relate to standardized concepts regarding nuclear power plant accidents. Other assumptions, although somewhat design-dependent, do not involve the use of detailed design information which might be proprietary or confidential. Their disclosure would reveal little information that is.not.already widely known in the industry. Moreover,
- " Review and Evaluation of the GESSAR-II Probabilistic Risk 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.
a HARMON, WEISS & JORDAN s
i 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 Brookhaven 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 tr anscript 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
HARMON, weiss & 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 perhaps require changes in the GESSAR standardized plant design. If this is true, then the PFA 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. S 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 use 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
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HARMON, WEISS & JORDAN j William Dircks August 6, 1984 Page Six justification for deletion of minor portions of the documents, we intend to pursue this matter in federal court. l Sincerely, f
I Diane Curran William Jordan, III :
Attorneys for Union of Concerned Scientists f
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'*w UNITED STATES
. . 'E ' % NUCLEAR REGULATORY COMMISSION tl I CASHINGTON, D. C. 20555
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JUN 2 5 n84 Mr. Steven Sholly Technical Research Associate Union of Concerned Scientists 1346 Connecticut Avenue, NW IN RESPONSE REFER Washington, DC 20036 TO F0IA-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 this 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 performed 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 value 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 performing the PRA, preparing the required submittals, and supporting the PRA review ,
amount to millions of dollars;
- 2. The perfomance 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 competi_ tors. Accordingly, public disclosure of this information would permit 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 design at little or no cost; and (ya%a+$ 9f- -
Mr. Steven ShDily ggg
- 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 claim and agrees that the infomation involved is proprietary.
These documents are being withheld from public disclosure pursuant to Exemption (4) of the Freedom of Infomation Act (5 U.S.C. 552(b)(4)) and 10 CFR 9.5(a)(4) of the Commission's regulations. These documents do not contain any reasonably segregable factual portions.
Pursuant to 10 CFR 9.9 of the Comission's regulations, it has been detemined that the infomation 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 O'pbrations, 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 F01A Decision."
The review of additional documents related to your request is continuing.
You will be notified at the completion of this review.
Singglely,/
///// W
/ /
/ . .. elton, Director
' Division of Rules and Records Office of Administration
Enclosure:
Appendix A
- FOIA 84-175 APPENDIX A
- 1. GESSAR II Probabilistic Risk Assessment (PRA)
,- Containment Failure Modes and Fission Product Release," 7/27/83.
- 4. BNL Letter Report " Review of GESSAR II Probabilistic Risk Assessment," undated.
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13 March 1984 FREEDOM OF INFORMATION Mr. 5. M. Felton, Director ACT REQUEST Division of Rules and Records y/a ,U,!
3 office of Administration U.S. Nuclear Regulatory Commi'ssion [At. Q [ / [-/ M Washington, D.C. 20555 RE: Freedom of Information Act Request for the GESSAR-II Pr6babilistic Risk Assessment and Associated NRC and NRC-contractor Reviews of that Report (Sholly FOI A Request . Number 84-07)
Dear Mr. Felton:
Pursuant to the Freedom of Inf0rmation Act, please make available at the Ccsmmission's Public Document Room at 1717 H Street, N.W. , Washington, D.C. , copies of documents in the following categories:
f A. A copy of the General Electric Probabilistic Risk Assessment for the GESSAR-II standard plant design ,
(Bh'R/6 Mark III) , and all updates, amendments, j appendices, addenda, supplements, and all other i changes thereto.
(
B. Copics of all NEC staff reviews of the documents ;
described above in "A". l l
C. Copies of all NRC contractor reviews of the documents l l
described above in "A". -
l D. For any review identified under "C" above, provide the name of the reviewing organization, the lead .)
investigators, all other investigators, the NRC -
j Contract and FIN numbers assigned to the review project, the funding provided for the review project, and the NRC Form 189 for each such project.
If there e.re any questions regarding this request, please 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 request specifically includes a request to review the bases for the priprietary claim and release all of the documents discussed in "A" above. '
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'1he definition of " trade secret" is also relatively narrow. It has been defined as an " unpatented, secret, ccumercially valuable plan, appliance, forn.ula or process sich is used for the naking, preparing, compounding, treatirg or processire of articles or materials which are trade cwicadities.
Consumers Union, supra, 331 F.Supp. at ED 1.
It is impossible to belaeve that all of the Gessar PFA is legally exempt from disclosure 'under this standard. For one thing, the Gessar design is not
" secret" since it is subject to NBC review and public scrutiny. In addition, it is my understanding that the codes being used are prirarily pablicly-available codes.
I would ' appreciate your response as soon as possible.
Sincerely, L
- d El R. Weiss General Counsel Union of Concerned Scientists Enclosure 1 s