ML20147H846
| ML20147H846 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/03/1988 |
| From: | Spielberg A HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5774 OL-1, NUDOCS 8803090083 | |
| Download: ML20147H846 (6) | |
Text
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00CKETED L
March 3, 1988 UNITED STATES NUCLEAR REGULATORY COMMISSION h g -7 pk ;$7 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE Of Huit WY 00CKEliNG & GERVICE
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BRA r~u In the Matter of
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Public Service Company of
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ji New Hampshire, et al.
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Docket No. 50-443 OL-1 /4Y-6d ~f i
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(Seabrook Station, Units 1 & 2)
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ONSITE EMERGENCY
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PLANNING & TECHNICAL
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ISSUES
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NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S OPPOSITION TO APPLICANTS' REQUEST FOR AN ORDER AS TO FUTURE ESTOPPEL AND TO WESTINGHOUSE ELECTRIC CORPORATION'S MOTION FOR AN EXTENSION OF TIME I.
INTRODUCTION On February 10, 1988, the New England Coalition on Nuclear Pollution ("NECNP") moved to compel Applicants' production of a i which Applicants asserted contained information "pro-document prietary" to Western Electric Corporation, and which they refused to produce until NECNP agrees to an "appropriate protective order".
Applicants did not at any time even attempt to make the requisite threshold showing of entitlement to a protective order, as they are required to do under 10 C.F.R. SS 2.740(c) (6) and 1
Applicants have identified this document in their response to interrogatory 5g) as Villasor, A.P.,
Jr.,
"Steam Generator Tube Plugging Margin Analysis for the Seabrook Nos. 1 & 2 Nuclear Power Plants", WCAP 10413, Westinghouse Nuclear Energy Systems, Pittsburgh, Pa., November 1983.
88030900g3 ggg3g3 gDR ADOCK 05000443 PDR b
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(f)(1).
Westinghouse has stated that it is now in the process of preparing a non-proprietary version of the document as well as, under 10 C.F.R. 5 2.790, an application to the Commission for protection of propriety information in the document.
Applicants now seek to estop NECNP from seeking postponement in any summary disposition of the steam generator tube inspection contention without any resolution of outstanding discovery issues.
II.
DISCUSSION NECNP strongly opposes Applicants' Request for an Order as to Future Estoppel.
Under NRC rules, NECNP is entitled to this document so that it can have full and complete discovery prior to any final resolution of the steam generator tubing inspection issue.
NECNP is also entitled to the document without prior entry of a protective ordet unless Applicants first establish their entitlement to such an order.2 While Applicants assert their willingness to provide NECNP with the document at issue under a protective order, without prejudice to any future public 2
NECNP has set forth the law on entitlement to protective crders for trade secrets or other confidential research, develop-ment, or commercial information in its Motion to Compel Applicants to Respond to NECNP's Second Set of Interrogatories and Request for Production of Documents on NECNP Contention I.V.
{ February 10, 1988) (hereafter "NECNP Motion to Compel").
I Applicants have not disagreed with NECNP's statement of the legal burdens for establishing the need for a protecti,e order and have left it to Westinghouse to establish the "proprietary" nature of the document at issue.
f f
3 use of the document by NECNP, Applicants' Request for an order as to Future Estoppel is merely an attempt to evade their burden of proof of establishing that a protective order is indeed appropriate in this instance.
Regulation 10 C.F.R.
$ 2.740(f)(1) requires Applicants to seek a protective order from the Board before they can legiti-mately refuse to produce a document on grounds that it is objec-tionable.
Applicants could have expeditiously resolved this dis-covery issue simply by making the showings required for a protec-tive order under 10 C.F.R. 55 2.740(c) (6) and (f)(1) simulta-neously with the filing of their January 26, 1988 response to NECNP's Second Set of Interrogatories and Request for Production of Documents to Applicants on NECNP Contention I.V.
NECNP would be disserving the public interest if it agreed to review the doc-ument under a protective order before such a showing was made.
That interest requires public access to discovery absent a demonstration of confidentiality and harm to Westinghouse which outweighs the public interest in access.3 NECNP has no objection to Westinghouse's taking the addi-3 Eeg NECNP Motion to Compel at 3-5.
Moreover, it may never prove necessary for NECNP or its experts to review Westinghouse's proprietary information, if that information is irrelevant to the case and can be segregated from a non-proprietary version.
It is neither in NECNP's nor Westinghouse's interest for NECNP to become privy to trade secrets in which it has no interest.
4
s
., tional time requested to gather information needed to establish entitlement to a protective order, orovided that no dispositive motions on the steam generator tube contention are entertained.
Summary disposition is premature and inappropriate unless and until all outstanding discovery issues are resolved.
- Moreover, the entry of a protective oraer at this time, without any prior determination of actual need, could result in the complete closure of the hearings, there.by violating the public's right to a hearing under UCS v. NRC, 733 F.2d 1437 (D.C. Cir. 1984).
III. RELIEF REQUESTED To facilitate resolution of these issues as well as to accommodate any legitimate entitlement to a protective order Westinghouse might have, NECNP proposes the following approach to this discovery issue.4 NECNP will review Westinghouse's non-proprietary version of the document, as well as the affidavits to be filed with the Commission setting forth the proprietary nature of the information sought to be withheld from public disclosure under 10 C.F.R.
5 2.790, and' evaluate whether NECNP will also need access to portions of the document which Westinghouse deems i
proprietary in order to proceed to summary disposition.
If NECNP 4
Counsel for NECNp proposed this method of proceeding to counsel for Applicants.
He refused, however, to agree to any procedure other than prior entry of a protective order.
.. determines that the allegedly "proprietary" information is neces-sary in order to proceed to summary disposition, a summary dis-position motion cannot be entertained until Applicants and Westinghouse carry their burden of establishing entitlement to a protective order sufficient to overcome the public interest in public access to discovery.
NECNP believes this method of pro-caeding will best serve all the interests at stake here.
NECNP respectfully submits that whatever course the Board chooses, it must resolve this motion to compel in favor of allowing full and complete discovery before any disposition can be made of the steam generator tubing issue.
Respectfully submitted, bw-Anne Spielberg HARMON & WEISS 2001 "S" Street N.W. Suite 430 Washington, D.C.
20009 (202) 328-3500 CERTIFICATE OF SERVICE I certify that on March 3, 1988, copies of the foregoing pleading were served by first-class mail on all parties listed on the attached service list.
hv..x 4/
Anne Spielb/ erg h
l SEABROOK SERVICE LIST - ONSITE LICENSING BOARD Sheldon J. Wolfe, Chairman 155 Washington Road Office of General Counsel McKay, Murphy and Graham U.S. NRC Rye, New Hampshire 03870 U.S. NRC 100 Main Strect Washington, D.C. 20555 '
Washington, D.C. 20555 Amesbury,MA 01913 Richard E. Sullivan, Mayor Dr. Jerry Harbour City Hall Mr. Angie Machiros,-
U.S. NRC Newburyport,MA 01950 Chairman 1
Washington, D.C. 20555 Town of Newbury Alfred V. Sargent, Chairman Town Hall,25 High Road Dr. Emmeth A. Luebke Board of Selectmen Newbury,MA 01951 5500 Friendship Blvd.
Town of Salisbury, MA 01950 ce, Apartment 1923N George Dana Bisbee, Esq.
83 ChesyChase,MD 20815 Senator Gordon J. Humphrey Geoffrey M. Huntington, Esq.
M U.S. Senate Office of the Attorney General
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g@F Atomic Safety and Licensing Washington, D.C. 20510 State House Annex J
d pp Board P:.nel (Attn. Tom Burack)
Concord, Nil 03301 G
U.S. NRC y
Washington, D.C. 20$$$
Selectmen of Northampton Allen lampert SE a
Northampton, New Hamp-Civil Defense Director N
y Atomic Safety and Licensing shire 03826 Town of Brentowood J
Appe-1 Board Panel Exeter,NH 03833 U.S. NRC Senator Gordon J. Humphrey Washington, D.C. 20555 1 Eagle Square, Ste 507 Richard A. Hampe, Esq.
Concord,NH 03301 Itampe and McNicholas Docketing and Service 35 Pleasant Street U.S. NRC Michael Santosuosso, Concord, NH 03301 Washington, D.C. 20555 Chairman Board of Selectmen Gary W. Holmes, Esq.
Mrs. Anne E. Goodman Jewell Street, RFD # 2 Holmes & Ellis Board of Selectmen South Hampton, NH 03S42 47 Winnacunnent Road 13-15 New Market Road Hampton, NH 03S42 Durh rn, NH 03842 Judith H. Mizner, Esq.
Sihcrglate, Gertner, et al.
William Armstrong William S. Lord, Selectman SS Broad Street Chil Defense Director Town ;iall-Friend Street Boston,MA 02110 10 Front Street Amesbury,MA 01913 Exeter,NH 03S33 Rep. Roberta C. Pevear Jane Doughty Drinkwater Road CaMn A. Canney SAPL Hampton, Falls, NH 03844 City Manager 5 Market Street City Hall Portsmouth,NH 03801 Phillip Ahrens, Esq.
126 Daniel Street Assistant Attorney General Portsmouth, NH 03801 Carol S. Sneidet, Esquire State liouse, Station # 6 Assistant Attorney General Augusta,ME 04333 Matthew T. Brock, Esq 1 Ashburton Place,19th Door Shaines & McEachern Boston, MA 02103 Thomas G. Dignan, Esq.
P.O. Box 360 R.K. Gad II, Esq.
Maplewood Aw, 1 Sta; ley W. Knowles Ropes & Gray Portsmouth,NH 03S01 Board of Selectmen 225 Franklin Street P.O. Box 710 Boston, MA 02110 Sandra Gavutis North Hampten,NH 03826 RFD 1 Box 1154 Robert A. Backus, Esq.
East Kensington, NH 03S27 J.P. Nadeau Backus, Meyer & Solomon Town of Rye 111 Lowell Street Charles P, Graham. Esq Manchester,NH 03105 j
Greg Bery i
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