ML20216E235
| ML20216E235 | |
| Person / Time | |
|---|---|
| Issue date: | 07/10/1986 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| References | |
| FOIA-82-172 NUDOCS 8706300662 | |
| Download: ML20216E235 (41) | |
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[D{M /f, UNITED STATES
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g NUCLEAR REGULATORY COMMISSION ~
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- J-W ASHIN GTON, D.C. 20555
"% * * * * $g OFFICE OF THE July 10, 1986
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SECRETARY f
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Ms. Susan L. Hiatt OCRE Representative 8275LMunson Road-z a
Mentor, OH 44060 Re:
FOIA-82-172
Dear Ms. Hiatt:
Previously you had filed a request with the agency under the Freedom of Information Act_("FOIA"), 5 U.S.C.
S 552,-for.
l disclosure of the 1975 General Electric Nuclear Reactor Study, also known as the Reed Report.
A 1980 Commission decision j
authorized release of the. Reed Report.
Public Service Company of Oklahoma (Black Fox _ Station, Units 1 and 2), CLI-80-35, 1
12 NRC 409 (1980).
However, the United States Court of Appeals'for the Seventh Circuit remanded that decision for further explanation.
General Electric Co.~v. NRC, 750 F.2d 1394 (7th Cir. 1984).
As a result, the. Commission again has reviewed-whether disclosure of the Reed Report is appropriate.
l After.considering comments from General Electric Company
("GE"), and f rom several-individuals and organizations ' that had requested-or otherwise expressed an interest.in the Reed Report, as_well as an NRC staff analysis, the Commission has determined that-it is unable to accept GE's' claim that the document should be withheld under FOIA exemption 4, 5 U.S.C.
S 552 (b) (4), as confidential commercial information the disclosure of which would cause substantial competitive harm to GE.
However, by a vote of three to one with Chairman Zech and Commissioners Roberts and Bernthal agreeing, the Commission now finds, in accordance with FOIA exemption 4, that disclosure'of the Reed Report would impair the agency's ability to obtain similar information_in the future.
As a result, your request for disclosure of the Reed Report is denied.
Attached to this letter is a detailed explanation of the Commission's reasons for its determination.
Commissioner Asselstine would have granted-disclosure of the Reed Report.
8706300662 860710 PDR FOIA PDR HIATT82-172 L12
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2 This letter represents final agency action on your FOIA request regarding the Reed Report.
Judicial review of this decision is available in a federal district court in the district in which you reside, in which you have your principal place of business or in the District of Columbia.
Sincerel
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I hmue J.
W Secretary of the Commission
Attachment:
As stated
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O ATTACEMENT s
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i Nuclear' Regulatory Commission Explanation of Reasons'for Non-Disclosure of General Electric j
Reed. Report Upon Remand from the' United States Court of Appeals for the Seventh Circuit
'In its decision in General Electric-Co. v. NRC, 750'F.2d 1394 (7th Cir. 1984), 'the United' States-Court of Appeals for the Seventh Circuit remanded to the Nuclear Regulatory Commis-sion ("NRC" or the " Commission") for further explanation its 1980 determination'that the 1975 General' Electric-Nuclear Reactor Study, also referred to as the Reed Report
(" the Report"), should be publicly disclosed pursuant to several Freedom of Information Act ("FOIA") requests for the document.
Specifically, the court directed that the agency;give an additional explanation of the basis for its decision that'the Reed Report was not considered exempt from disclosure under i
FOIA exemption 4, 5 U.S.C.
S 552 (b) (4), as confidential l
commercial information whose disclosure would cause substantial harm to General Electric Company's ("GE")
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competitive position.
Upon further consideration as a result of this remand, l
the Nuclear Regulatory Commission reaffirms its position that j
the Reed Report does not fall within FOIA exemption 4's-1 provisions concerning proprietary commercial-information.
The j
l Commission also has determined, however, that the Reed Report i
I does come within FOIA exemption 4's provisions protecting from
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release would impair.the Government's ability to obtain similar necessary information in the future.
Finally, in i
response to the arguments made by GE, the Commission has considered ~and rejects GE's assertion that the Reed Report is a privileged self-critical analysis and thus under FOIA exemp.
. tion.4 is not subject to disclosure.
An explanation of the Commission's reasons for these various determinations follows.
-I.
Background
A.
Previous Proceedings In 1974, GE's Nuclear Energy Division introduced a
" Quality Strategy" program.
This program was intended to provide customers with GE boiling water reactor ("BWR")
nuclear systems that would be available to supply electric power at capacity factors greater than the average rates for availability and capacity for reactors then operating.
To determine the requirements for implementing this " Quality l
Strategy" program, GE commissioned the Reed Report, which is l
so named for its principal author-director.
The Reed Report, which was compiled in a six-month period between November 1974 l
and May 1975, consists of a 200-page executive summary and the main report plus ten subtask reports, which total 1
approximately 500 pages.
The Reed Report has been characterized by GE as a product in provement study rather than a safety study.
In the context
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of the Report, GE nonetheless identified twenty-seven safety-related issues.
When the Report was completed, GE concluded that the'NRC39as aware of each of these safety related issues so that they need not be disclosed to the agency under section 206 of the Energy Reorganization Act of 1974, l
42 U.S.C. S 5846.
Nonetheless, GE acted to inform the agency of the scope and purpose of its study, of the study's
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competitive sensitivity, and of the nature of GE's own review q
of the Report for new or significant safety information.
While the NRC thus was aware of the Reed Report, it did not become a matter in dispute before the agency until Octobur 1978.
As part of its participation in the permit proceeding for the construction of two GE BWRs at the proposed Black Fox Station in Oklahoma, an intervenor sought to cross-examine the applicants' witnesses from GE about the Reed Report.
The Atomic Safety and Licensing Board presiding over the proceeding suspended the examination and attempted to obtain a copy of the Reed Report for in camera inspection by the parties, under a protective order, with respect to the twenty-seven safety issues.
After rejecting a GE offer to make extracts of portions of the Report available under protective order, the Licensing Board issued a subpoena for the Report.
GE responded with a motion to quash the subpoena, which subsequently was rendered moot by the Board's acceptance 1
of a January 1979 GE settlement offer.
Under the terms of that settlement the Reed Report in its entirety was made I
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'available to:the Licensing Board in confidence and verbatim extracts were made available to the intervenor as they related
'to the safety.. matters at issue.
After in camera evidentiary hearings lii February 1979, the' extracts were admitted into evidence'in. camera, but the Reed Report itself was not.
i At about the same. time as the Black-Fox in camera hearings, the Licensing Board received the first of a number of FOIA requests for the. Reed Report.
All of these initially were denied and appeals were taken to the Commission.
The i
4 Licensing Board also certified to the Commission the question of whether, under 10 CFR S 2.790, GE was entitled to return bf the Reed Report upon request.
In its memorandum and order regarding the certified question and the various FOIA appeals, the Commission declared that the Reed Report'was an " agency record" within the meaning l
of the Freedom of Information Act, and thus subject to disclo-1 sure unless it fell within one of the FOIA's nine exemptions from disclosure.
Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-35, 12 NRC 409 (1980).
l The Commission focused on FOIA exemption 4, 5 U.S.C.
S 522 (b) (4), which protects from disclosure " trade secrets and commercial or financial information obtained from a person and privileged or confidential."
The Commission noted that the NRC staff had reviewed the Reed Report under FOIA exemption 4, and had determined that it could not be considered confidential commercial information the disclosure of which
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I would cause substantial competitive harm to GE.
12 NRC at 411.
The Commission also considered whether withholding the Report was appropriate under FOIA exemption 4 because release l
of the information would impair the agency's ability to receive similar information in the future.
The four Commissioners considering the matter were evenly divided on this question which, under the FOIA, effectively resulted in a decision to release the document.
Id. at 411-12.
GE thereafter filed suit in federal district court'to prevent disclosure of the Reed Report.
The district court ultimately upheld the Commission's determination to release' the Report.
General Electric Co. v. NRC, No. 80-2244 (C.D.
Ill. Nov. 30, 1983).
GE appealed that decision to the Seventh i
circuit, which upheld both the Commission's determination that
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-1 the Reed Report was an agency record subject to the FOIA and the Commission's evenly-divided decision that release of the Report would not impair the agency's ability to obtain similar information in the future.
General Electric Co. v. NRC, 750 F.2d at 1398-1402.
However, citing the lack of discussion in the Commission's decision about the competitive harm to GE-from the release of the Reed Report, the court remanded the q
matter for further Commission explanation.
Id.. at 1402-04.
B.
Remand In a letter dated May 13, 1985, which responded to a December 1984 GE request to provide additional information
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regarding disclosure of the Reed Report, the Commission gave
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'l GE permission to submit whatever additional information it j
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~ deemed appropriate.' The Commission specifically requested that GE address the issue of whether any portion of the Report could be segregated and. released.
This letter, which was served on all FOIA requesters per an attached service list, also asked that GE provide its filing to those persons and 1
groups who previously.had submitted an FOIA request and indicated <that'those' requesters could file a response with the v
Commission.
In a brief dated July 1, 1985, GE asserted that the Report is confidential commercial information falling within FOIA exemption 4 because GE likely will suffer substantial l
competitive harm if the Reed Report is released to the public and because disclosure of the Report will impair the NRC's ability to obtain similar information in the future.
GE also asserted that the commission should interpret 10 CFR
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S 2.790(c) to give GE the right to have the Report returned even in the face of pending.FOIA requests.
Finally, GE i
i asserted that no portion of the Reed Report was segregable, i
Thereafter, in a supplemental brief dated July 16, 1985, GE i
asserted that the Reed Report also was exempt from disclosure under FOIA exemption 4 as a " privileged" document falling l
within the qualified privilege for self-critical analyses.
GE's claims of exemption were challenged in filings in j
i late July by FOIA requesters Ohio Citi ens for Responsible l
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7 Energy and Carlos Byars and by Bill Hafner.
In addition, Westinghouse Electric Corporation
(" Westinghouse") filed a i
brief dated July 26, 1985.
Westinghouse stated that while it would like to obtain its competitor's product improvement study, section 2.790(c) compelled the Ccmmission to accede to j
GE's request that the Reed Report be returned despite the pending FOIA requests.
To further aid the Commission in its consideration of the appropriate disposition of the Reed Report, the NRC staff also reviewed these various filings and prepared an analysis of
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GE's claim that release of the Report would cause substantial competitive harm to GE.
In an extensive analysis, the staff concluded that GE had failed to demonstrate that such competitive harm would occur from release of the Report.
II.
Analysis i
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FOIA exemption 4, 5 U.S.C.
S 552 (b) (4), provides that the disclosure requirements of the FOIA do not apply "to matters that are trade secrets and commercial or financial information obtained from a person and privileged or confiden-tial."
Courts have held that this exemption has three ele-ments:
(1) records encompassed must relate to matters that i
are either trade secrets or commercial or financial informa-tion; (2) the information must be obtained from a person; and i
(3) the information must be privileged or confidential.
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e.g., Public Citizen Health Research Group v. FDA, 704 F.2d l
1280, 1290 (D.C. Cir. 1983); National Parks & Conservation l
Association v. Morton, 498 F.2d 765, 766 (D.C. Cir. 1974).
In this instance, there is no doubt that the Reed Report consti-tutes " commercial" information that was obtained from a
" person."1 What is at issue is whether the report constitutes
" confidential" or " privileged" information within the meaning of FOIA exemption 4.
A.
The Reed Report As Confidential Commercial Information Exempt From Public Disclosure l
Under 5 U.S.C. S 552 (b) (4)
In its seminal decision in National Parks & Conservation A tisoci a tion, 498 F.2d at 770, the United States Court of Appeals for the District of Columbia Circuit declared that information is to be considered " confidential" under FOIA exemption 4 if " disclosure of the information is likely to 1" Person" for the purpose of FOIA exemption 4 includes corporations or associations.
5 U.S.C.
S 531(2); Gulf &
Western Indus., Inc. v. United States, 615 F.2d 527, 529 (D.C.
Cir. 1980).
With regard to the " commercial" nature of the Reed Report, as a product improvement study it falls well within the bounds of section 552 (b) (4).
- See, e.g.,
Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983)
(" commercial" in exemption 4 should be given its ordinary meaning; clinical study reports prepared by manufacturer on products are commercial information); Miller, Anderson, Nash, Yerke & Wiener v. United States Dep't of Energy, 499 F. Supp. 767, 770 (D. Or. 1980) (memorandum relating to construction of building at nuclear power plant l
concerns transaction integrally related to commerce and qualifies as commercial information).
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9 have either of the following effects:
(1) to impair the Government's ability to'obtain necessary information in the j
' future; or (2) to cause substantial harm to the competitive j
position of the person from whom the information was obtained."' GE asserts that under either prong of this test, the Reed Report should be withheld from public disclosure.
The Commission is unable to find that GE has established that disclosure of the Reed Report will cause it substantial competitive harm.
The Commission thus affirms its earlier determination on this point.
Nonetheless, upon further con-sideration of the matter of harm to the agency's ability to' obtain similar information in the future, the Commission now finds.that such.mpairment would result from disclosure of the Reed Report, so that it now will invoke FOIA exemption 4 to i
protect the report from disclosure.
An explanation of the 1
Commission's reasons for these findings is detailed below.
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1.
C_mapetitive Harm The Seventh circuit's remand of this case rested upon the Commission's failure to explain adequately the reasons why it oncluded that disclosure of the Reed Report will not cause competitive harm to GE.
Upon remand, in response to the Commission's letter allowing GE to make an additional showing i
of competitive harm, GE has submitted the affidavit of its Vice President Be' am Wolfe.
That affidavit and the accompanying ? :e# :f General Electric Company, along with the C
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10 filings of-the various FOIA requesters, Mr. Hafner, and Westinghouse were submitted to the NRC staff for analysis and a recommendation on the issue of whether disclosure'of the Reed Report would result in substantial competitive harm to GE.
The staff has pro,vided the Commission with an " Additional Analysis of. Reed Report" that addresses the question of competitive harm to GE.
This analycis is attached as Exhibit 1.
In its submission, the staff indicated that it is unable to conclude that any substantial competitive harm would result from the report's disclosure.
We note that a principal factor in'the staff's analyeis is the age of the report, which the staff believes nullifies many of GE's concerns about competitive' harm.
The Commission has reviewed the staff's analysis of the issue of competitive harm and agrees with and-adopts the l
conclusions and reasoning expressed therein.
On this basis, l
the Commission's earlier determination that GE would not suffer competitive harm by disclosure of the Reed Report is affirmed.
1 2.
Impairment of Agency Information-cathering Processes The Commission's initial consideration of the issue of whether disclosure of the Reed Report would impair the ability l
of the agency to obtain similar information in the future resulted in a tie vote.
While this vote did not establish 1
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11 affirmatively the Commission's position on this question, its effect nonetheless was to require disclosure of the document.
The Seventh Circuit did not direct the Commission to review this matter, but since there is no legal bar to further Commission consideration of this issue upon remand,2 the circumstances of the p.revious vote weigh in favor of the Commission now attempting to reach a definitive determination on this question.
Further, after careful consideration of the matter, the Commission now has decided that disclosure of the Reed Report, voluntarily supplied to the agency under an express promise of confidentiality, will impair the agency's ability to obtain necessary information la the future.
In its filing supporting disclosure of the Reed Report, Ohio Citizens for Responsible Energy requests that the Commission strike those portions of GE's initial and supplemental brief that discuss issues beyond the question of competitive harm that specifically was remanded by the Seventh Circuit.
The Commission, however, does not believe it is legally constrained from considering any of those matters upon remand.
Although an agency's initial failure to raise an exemption for a document sometimes may bar it from doing so in later judicial proceedings, such a constraint is inappropriate f
in this instance.
The Commission's earlier consideration of the " impairment" argument as a basis for asserting exemption 4 i
effectively was unresolved because of a tie vote.
- Further, f
although exemption 4 contained the " privilege" language at the time the Commission first considered the FOIA requests for the Reed Report, as is explained at p.
19 infra, the legal developments that allow serious consideration of the "self-critical analysis privilege" have occurred in the intervening years.
Accordingly, the Commission finds no reason to strike any portion of the GE brief.
See Jordan v.
United States Dep't of Justice, 591 F.2d 753, 780 (D.C. Cir.
1978) (en banc); Washincton Post Co.
- v. HHS, 603 F. Supp. 235, 237 n.6 (D.D.C. 1985).
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Initially, we note that the information involved in this j
instance is indeed "necessary" as that term has been defined by courts considering agency claims of impairment under FOIA i
exemption 4.
The term has not been construed to require that
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the information must be " absolutely essential to the operation of the agency or to the governing process itself."
9 to 5 Organization for Women Office Workers v. Board of Governors of i
Federal Reserve System, 721 F.2d 1, 10 (1st Cir. 1983)
(emphasis in original).
Instead, courts have indicated that the term was meant "to reflect Congress' purpose to protect information which would be particularly helpful to agency officials in carrying out their mandate."
Id.; see National Parks & Conservation Association, 498 F.2d at 768 (purpose t
underlying impairment exemption is that of " encouraging cooperation with Government by persons having information useful to government officials").
Thus, to protect the governmental interest in efficient operation, exemption 4 must be viewed as protecting from disclosure information that
" serves a valuable purpose and is useful for the effective execution of [an agency's) statutory responsibilities."
9 to 5 Organization, 721 F.2d at 11.
The NRC has broad statutory responsibilities relating to commercial nuclear power facilities under the Atomic Energy Act of 1954 ("AEA"), 42 U.S.C. SS 2011 et. _ seq., as amended by the Energy Reorganizatica Act of 1974, 42 U.S.C. SS 5801 et.
s e q'.
Among these is the duty to ensure the protection of the l
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In carry-ing out these. responsibilities, the agency is interested in I
i all information that relates to the safe operation of the j
plants.
Although the Reed Report inay have been intended by GE primarily as a product improvement study, it nonetheless l
resulted in the identification of twenty-seven safety-related
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issues concerning GE BWR systems.
The information in the Report ultimately did not provide a basis for further NRC con-cern, but the NRC certainly was interested in being apprised of such safety-related information in order to assess whether further agency action was warranted.
NRC interest in this information could include not only an assessment of whether it 4
i is relevant to ongoing agency licensing actions, as occurred with respect to the Black Fox proceeding, but also whether further NRC inspection, enforcement or regulatory action is required.
Accordingly, the information in the Reed Report and similar " commercial" documents clearly is valuable and useful to the agency in its completion of its statutory obligation to protect the public health and safety and must be considered necessary" under the exemption 4's impairment prong.
d It also is apparent that the agency's information gather-ing processes will be impaired by the release of the Report.
In this regard, courts have recognized that the mere fact the agency has the statutory authority to require that certain information be provided or to impose sanctions or withhold m
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14 governmental benefits if that information is not submitted is not determinative in assessing the likelihood of government impairment.
- See, e.g.,
Public Citizen Health Research Group, 704 F.2d at 1291 n.29; Washington Post Co. v.
HHS, 690 F.2d 252, 268 & n.53 (D.C. Cir. 1982).
The agency's ability to enforce strictly a. disclosure obligation and the likelihood that the resultant disclosure will be accurate and complete must also be considered.
See Washington Post Co., 690 F.2d at 268.
Moreover, it has been judicially recognized that the Government is entitled to promise confidentiality in order to obtain commercially sensitive information easily and should' not be forced to enlarge its enforcement staff or to threaten sanctions to obtain inrormation previously obtained on a voluntary basis.
See Timken Co. v. United States Customs Service, 531 F. Supp. 194, 198 (D.D.C. 19 81) ; Timken Co. v.
United States Customs Service, 491 F. Supp. 557, 561 (D.D.C.
1980).
That disclosure of the Reed Report will impair the agency's ability to obtain similar information from GE is more than merely likely; that result is a certainty.
As in the Black Fox proceeding, in order to gain access to sensitive commercial information to assess its relevance to reactor licensing and regulations, the agency has relied in large part upon the voluntary disclosure of such information by GE and other vendors.
In its July 1985 filing with the Commission, GE nonetheless states that if the Reed Report is released,
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l 15 "GE's obvious choice in the future.
. would be to eschew
. voluntary. cooperation'and force the Commission to initiate action in the courts and attempt to enforce a subpoena."
Brief'of General Electric at 32.
As GE also suggests, id.,
the agency's ability to obtain similar information from other nuclear vendors by voluntary disclosures surely will be impaired as well.
If, as appears almost certain, the NRC is no longer able i
to obtain information like the Reed Report voluntarily as it' has in the past, its ability to obtain such information at all l
will be severely limited.
While reactor licensees and manu-facturers_have statutory and regulatory obligations to provide certain technical information and data to the NRC, see 42 U.S.C. SS 2133 (b) (3), 2232 (a), 5846; 10 C.F.R. SS 50.55 (e),
50.72, 50.73, in instances like this one those obligations may not affirmatively require that the particular information involved be provided to the agency.
See Public Service Company of Oklahoma, 12 NRC at 410.
The only alternative available to the agency to obtain the information then becomes the use of AEA section 161(c), 42 U.S.C. S 2201(c), which authorizes the Commission to issue subpoenas to "obtain such information... as the Commission may deem necessary or proper to assist it in exercising any authority provided in [the AEA], or in the administration or enforcement of [the AEA), or any regulations or order issued thereunder."
However, even assuming section 161(c) would cover documents such as the Reed i
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t 16 Report, use of the subpoena authority is a complex, lengthy, l
uncertain, and expensive process that would require substantial additional NRC enforcement resources.
As noted previously,-however, an agency should'not be' forced to expand
-its enforcement staff, threaten sanctions or compel compliance when voluntarily compl.iance with requests for information-could be easily obtained through assurances of
-confidentiality.
Timken Co.,
491 F. Supp. at 561.
Finally, inlthe event disclosure of the Reed Report is 1
required, it is apparent that the accuracy and completeness of i
similar studies by GE and other vendors may suffer, thereby' impairing the agency's ability to obtain information it con-I siders most useful.
The agency benefits greatly.from the voluntary efforts of entities like GE to identify and fully inform the Commission about any matters having a relationship to reactor safety, but release of the Report undoubtedly'will result in a diminished willingness by such companies to identify or address such issues in the context of any commer-cial studies.
3Prior to issuing a subpoena, an extensive administrative review, justification, and authorization process must be completed.
Once the subpoena is issued, the recipient may administrative 1y seek to quash, modify or condition the subpoena.
If the recipient still refuses to comply with a subpoena, the Commission must ask the Department of Justice in i
its discretion to attempt to enforce the subpoena in court.
S,ee 42 U.S.C. S 2281.
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17 Under these circumstances,4 the NRC's interest in obtain-ing similar necessary information in the future obviously would be seriously impaired by public disclosure of GE's confidential commercial Reed Report.
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1 In its analysis of GE's claims that disclosure of the l
4 Reed Report would cause it competitive harm, the NRC staff i
i noted that despite repeated requests, GE has indicated it cannot separate the Reed Report into proprietary and j
nonproprietary portions because the report is a compilation of fact and opinion that is not susceptible to segregation.
Although, as the NRC staff suggests, GE's argument that the l
document cannot be segregated may be questionable, we find its assertion that such segregation is inappropriate more 1
persuasive when the basis for invoking FOIA exemption 4 is a" concern about impairment.
As in the Black Fox proceeding, the i
agency generally is interested in receiving the fullest and most complete disclosure of information to assess its relevance to the agency's regulatory responsibilities.
In order to receive the fullest information, the agency must retain the ability to protect submissions in toto.
Accordingly, segregation would not be required under the impairment rationale.
5 Several courts also have recognized that the criteria identified in the two-prong impairment / competitive harm test are not exclusive and that other governmental interests, including program effectiveness, efficiency, and compliance, and the interest in obtaining the most complete information are embodied in exemption 4.
See 9 to 5 Org. for Women Office Workers v. Board of Governors of Federal Reserve Sys.,
721 F.2d 1, 8-10 (1st Cir. 1983); Washington Post Co. v. HHS, 690 F.2d 752, 768 n.51 (D.C. Cir. 1982); National Parks &
Conservation Ass'n v. Kleppe, 547 F.2d 673, 678 n.16 (D.C.
Cir. 1976); National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).
Thus, even if disclosure of the Reed Report would not impair agency access to necessary information, the Report might nonetheless be entitled to protection as " confidential" since the loss of such voluntary submissions as a result of disclosure could seriously affect NRC's ability efficient 3y and effectively to meet its obligations to license and regulate the construction and operation of nuclear power plants.
Besides the resource drain i
involved in the task of compelling submission of information (Footnote Continued)
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18 B.
The Reed Report as Privileged Commercial Information Exempt from Public Disclosure 4
Under 5 U.S.C. 5 554 (b) (4)
In its submissions to the Commission, GE also suggests for the first ',ime that the Reed Report should be considered exempt from disclosure under FOIA exemption 4 because it is a
" privileged" document.
Specifically, GE asserts that the Reed Report constitutes a "self-critical" analysis that would be privileged from civil discovery and thus should be exempt from release under the FOIA.
After reviewing GE's arguments on this point, however, the Commission is unable to find that the I
Reed Report should be considered a privileged "self-critical" analysis.
Most of the cases construing exemption 4 have focused on the " confidential" rather than the " privileged" aspect of the exemption; nonetheless, it is clear that the two are not to be considered synonymous.
See Washington Post Co. v. HHS, 690 i
F.2d at 267 n.50.
"Thus, information which is not i
confidential under the test in National Parks & Conservation Association v. Morton, [498 F.2d at 770), may nevertheless be
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privileged and exempt from disclosure under the FOIA."
(Footnote Continued) now received voluntarily, agency effectiveness in obtaining useful and comprehensive information may be compromised because vendors may be deterred from identifying or considering safety problems in the context of studies primarily designed to serve a commercial or financial purpose.
1
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1g Washington Post Co. v. HHS, 603 F. Supp. 235, 238 (D.D.C.
'1985) (footnote omitted).
In Washington Post Co. v. HHS, the United States District
' Court for the District of Columbia declared that specific l
privileges need not have been identified by Congress in order to fall within FOIA exemption 4.
603 F.
Supp. at 238.
The district court found that financial disclosure information from government advisory board members--information that pre-viously has been held to be privileged from civil discovery under Federal Rule of Civil Procedure 26 (b) (1)--was protected l
l from disclosure under exemption'4 by virtue of th'e "confiden-j I
tial' report" privilege.
603 F. Supp at 237.
In reaching this. conclusion, the district court relied upon the United States Supreme Court's decision in United States v. Weber Air-craft Corp., 465 U.S. 792 (1984), in which the Court held that FOIA exemption 5, 5 U.S.C. S 552(b) (5), covering agency memo-4 1
randa or letters exempts such documents that normally are 4
-1 privileged in the civil discovery context.
603 F. Supp. at 237-39.- As the district court recognized, other civil discovery privileges must be incorporated under exemption 4 as l
well or "the policies underlying (such) privilege (s) would be thwarted if a party could obtain through the FOIA information not discoverable under the Federal Rules."
Id. at 239.
i The self-critical analysis privilege has been described as " avoid [ing) discouraging an organization from undertaking a j
critical self-evaluation of its practices and procedures when
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i there are strong policy reasons for ensuring that such an J
i evaluation takes place."
In re Application _of the New York Times Co., Civil No. M8-85, slip op. at 3 (G.D.N.Y. Oct. 9, 1984) (unpublished opinion; available on.Lexis legal research service).
See generally Note, The Privilege of Self-Critical l
Analysis, 96 Harv. L.
Rev. 1083 (1983).
In order to invoke the privilege successfully, three criteria must be met.
(1)
J the information must result from a critical self-analysis 1
undertaken by the party seeking protection; (2) the public must have a strong interest in preserving the free flow of the type of information sought; and (3) the information must be of the type whose flow would be curtailed if disclosed.
96 Harv.
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(
L.
Fev. at 1086; see, e.g.,
Bredice v. Doctors Hospital, Inc.,
50 F.R.D.
249, 250-51 (D.D.C. 1970), aff'd, 479 F.2d 920 (D.C.
Cir. 1973); Wylie v. Mills, 195 N.J. Super. 332, 339, 478 A.2d 1273, 1277 (1984).
By its very nature as a product improvement study, the Reed Report is a self-critical analysis.
Further, its author, GE, seeks to have it protected from disclosure.
Thus, the requirements of the first factor are fulfilled.
As to the second and third factors, however, the l
Commission is unable to conclude that the Reed Report fulfills
]
the qualifications for invocation of the privilege.
The strong public interest considerations that heretofore have been judicially recognized as sufficient to support invocation of a privilege from disclosure, see, e.g., Davidson v. Light, f
)
j 1
t
O 0
21 79 F.R.D.
137, 139 (D. Colo. 1978) (self-critical analysis l
privilege recognized based on perceived strong public interest.
in promoting. health care improvements) ; Wylie, 197 N.J. Super.
]
at 339, 478 A.2d'at 1277 (privilege applies to comparing report on internal investigation of accident conducted to determine needed work place safety improvements), seemingly do not' exist with regard to the Reed Report, which-is essentially a commercial' product improvement report.6 Moreover, it is not clear that disclosure of the Reed Report and similar analyses would chill the willingness of GE and other manufacturers to undertake such commercial product improvement studies in the' future.
The Commission finds, therefore, that the Reed Report 1
I 4
OAs was noted earlier, certain portions of the Reed Report do discuss safety-related matters.
There clearly is an i
important public policy interest in encouraging self-critical analysis designed to improve reactor safety, which may well support withholding.these portions.
Nonetheless, GE has continued to assert that there should be no segregation and release of any portion of the Report, a position that further buttresses our conclusion that invocation of the privilege is inappropriate in.this instance.
.o-o
+
l
-22
'does not qualify for protection'from-disclosure under the 1
-privilege for'self-critical analysis.
i
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7Doth GE and Westinghouse also have asserted that 10 CFR S 2.790 requires that the Reed Report be returned upon request of GE despite the pendency of the FOIA petitions.
This question was' resolved with regard to the Reed Report in the Seventh Circuit's decision, which held that once an FOIA request was' filed for the Report, the Commission's authority
.to-return such an agency record was superseded by the
' requirements of.the Freedon of Information Act.
General Electric Co. v. NRC,-750 F.2d 1394, 1399-401 (7th Cir. 1984).
Accordingly, the Commission finds no basis for further consideration of the matter.
(
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EXHIBIT 1 l
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ADDITIONAL ANALYSIS OF REED REPORT
.)
- The NRC Staff (staff) has. analyzed the additional arguments submitted by GE
' (Wolfe Affidavit *) regarding its claims that the company will suffer substantial competitive harm if_the Reed Report is released under the Freedom of Information Act.. Below'is a discussion, keyed to the paragraph numbers, of the arguments presented in the Wolfe Affidavit.
1 1
. 1.
The Wolfe Affidavit characterizes the' Reed Report as "a confidential, self-i
. critical internal GE product: improvement study, fonnally entitled the.'
~ Nuclear Reactor' study, on the subject of GE's Boiling Water Reactor'(BWR)
_q Nuclear Steam Supply System (NSSS)* (para. 3)..
i We agree with this characterization except for the words " confidential" and "self-critical" which need some qualification as discussed later..
2.
The Wolfe Affidavit states that the Reed Deport is a highly technical study with the objective of detennining the basic requirements for continuing improvement in the availability and capacity factor of nuclear plants manufactured by GE (para. 3).
We also agree with this statement and wish to emphasize the words " highly technical", " objective of determining" and " nuclear plants manufactured by I
GE."-
- Affidavlt of Bertram Wolfe, March 13, 1985, In the Matter of General Electric Company v. United States Nuclear Regulatory Comission, g al.,
- No. 84-2066,.750 F.2d 1394 (1984).
i 1
- st~
0 0
7 3..
.The Wolfe Affidavit states that the Reed Report's principal purpose was to provide a basis'for assessing the corporate resources (including engi-neering-and. development facilities, technical personnel, and financial sup-port)' required for GE's product to achieve technical and competitive-leadership and thus enhance GE's market position (para. 3).
We wish to emphasize the words " basis for assessing" because the report does not assess the corporate resources, development facilities.. tech-nical personnel, or financial support. Also, although the report may have provided a basis for assessing corporate resources in 1975, the basis for deploying resources now or in the future has changed.
4.
The Wolfe Affidavit states that the Report was intended to direct product development and improvement to fonn the basis for GE's market strategy (para.3).
i Again,.we cannot comment on GE's intent, but wish to emphasize the word
" basis." The report does not deal in any significant way with GE's market strategy.
5.
The Wolfe Affidavit states that the Reed Report task force identified the l
issues and problems to be addressed, and made numerous recommendations l
intended to improve the availability and capacity. factor of nuclear plants manufactured by GE (para. 3).
We do not disagree in general with this statement but we believe it is mis-leading. The majority of the recommendations made in the Reed Report re-quire further study or investigation to see if they are technically sound and cost effective.
For example, most of the recommendations are of the following forms:
l I
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that the proposal be evaluated that effort be applied study and document
)
establish a task force establish and maintain an improved system of reporting develop methods strengthen the overall NED (Nuclear Engineering Division) network for collecting, analyzing, and disseminating set goals and establish program take steps to acquire establish a program increase the level of effort i
examine opportunities study the feasibility and cost benefit aspects The above type of generalized recomendations are not concrete enough to aid GE's competitors or potential competitors, especially when the recom-mendations pertain principally to BWRs or to the GE organization. A j
few of the recomendations in the Reed Report are more specific than those suggested above. However, most of the reconnendations are with respect to BWRs and deal with unique aspects of the BWRs. They are largely not applicable to PWRs or to other nuclear reactors. A few of the recommendations could possibly have indirectly applied to other reactors or to other organizations in 1975, but they would be of 3
1.........
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1 negligible benefit now.
If GE's competitors started now to apply the generalized studies or organization changes suggested in the Reed Report, they would be ten years behind GE.
For the above reasons, we be'lieve that the recommendations contained in the Reed Report would now be of little technical benefit to GE's competitors or potential competitors.
1 6.
The Wolfe Affidavit states that the Reed Report candidly discusses oppor-tunities for improvement of GE's product line and corporate organization, and recommends specific steps to strengthen GE's competitive position (para. 3).
We agree that there may be places in the report where the problems and.
opportunities for improvement that are presented could be of some benifit to GE's competitors. However, staff has contacted GE on at least three separate occasions to provide the opportunity for them to indicate specific items which may be detrimental to GE's propriatory interests.
GE has declined at each opportunity to propose editing the documents.
7.
The Wolfe Affidavit states that the Reed Report is a self-critical document with no attempt to balance the opinions by opposing opinions, analyzing the costs of particular recomended changes, prioritizing the improvements in terms of importance of the problems addressed, or the likelihood of successful implementation of an improvement, or to answer the concerns which such opinions would be likely to raise (para. 5).
We agree with this statement and wish to emphasize it, except with one caveat regarding the words "self-critical." Although the report is an introspective examination of the history of BWRs, BWR characteristics, and GE's organizational structure and capabilities, we do not find any in-stances in which GE blames itself for these circumstances. Whether such a candid introspective examination invokes a withholding of the document from a Freedom of Information Request based on a " privilege" argument, we leave for a legal determination. However, we doubt that any significant I
4 i
i O
O competitive harm would now come to GE by release of the Reed Report. The public has ready access to availability and capacity factor statistics on all nuclear reactors. The capacity factors of PWRs and BWRs are approxi-j mately equal. Also, other statistics on all reactors are readily available l
such as licensing event reports (LERs), equipment incident rates used in probabilistic risk assessments, and abnormal occurrence reports. Pro-spective buyers of nuclear systems or services would put little weight on a 10 year old report to reach a decision. They would look at the historical records or the current statistics in reaching a decision.
8.
The Wolfe Affidavit states that just as the developments resulting from j
the Reed Report directed toward improving availability and capacity fac-ter were about to be offered in the market place, the market changed dramatically because of the events at Three Mile Island (para. 11).
We emphasize the words " developments resulting from the Reed Report." The contents of the Reed Report itself were not going to be used in the market-place, only the developments resulting from that report.
By the time of Three Mile Island, GE already had a four year start in making the studies and suggestions in the Reed Report and was about to offer them in the j
i marketplace. Assuming that others are interested in implementing suggestions that are 10 years old and peculiarly structured toward BWRs and to the GE organization, they would need to further study and investigate the suggestions made in the Reed Report in order to determine if they were feasible for implementation.
]
k 9.
The Wolfe Affidavit goes on to state that because GE already has invested j
the resources in preparing the Reed Report and, as a result, has developed j
ways to improve availability and capacity factor, it is well positioned to i
play a significant role in this market (para. 11).
~
i f
We believe this statement underscores our conclusion that it is now too late for the Reed Report to be of any significant value to others because it would take much more analyses and many more years before others could develop the recommendations for suitable application to the marketplace.
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1
- 10. The Wolfe Affidavit notes:
--- that nuclear reactor orders have decreased (para. 12),
i
--- that GE has realigned its business objectives to emphasize marketing of services _and fuel for existing reactors in domestic markets j
(para.12),
- l
--- at the present time and for the foreseeable future, the international.
1 market appears to offer the only significant opportunity for sales of new reactors (para. 13). but that GE faces a number of obstacles in attempting to penetrate foreign markets in the future (para. 13),
j i
--- that services and equipment to improve availability and capacity factors have become of increasing importance to suppliers in light of the sub-stantial downturn in the construction of new plants (para. 14),-
--- that Westinghouse, Combustion Engineering, Babcock and Wilcox, and others have recently expressed their view that improving availability and capacity in existing reactors is the paramount issue facing the nuclear services industry (para. 14), and
--- that the Reed Report's emphasis on availability and capacity factor makes it of current value to GE and to its competitors (para 14).
1 We have no particular quarrel with the above statements, except for the last. We have no reason to doubt that the actions taken based on the Reed Report are of current value to GE. We seriously doubt, however, that the Reed Report itself is any longer of any substantial value to GE.
If the recommended actions have not been taken by now, they must not be very important or cost effective. Also, the recommendations would
)
take others considerable time to study for feasibility and then to implement as discussed previously.
]
i 11'.
The Wolfe Affidavit states that competition is intense in the nuclear I
services market, both in tne domestic and foreign markets (para. 15, 16),
6
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4 and that release of the Reed Report would allow GE's competitors to gain extensive insight into GE's present marketing strategy in the services market (para. 17).
As discussed previously, the Reed Report was directed toward product im-provement (Wolfe Affidavit para 3). There is almost a total emphasis on improving the availability and capacity factor of BWRs so that they can compete with PWRs and fossil fired plants. The report does recomend that a greater effort be taken by GE to provide services to electric utilities toward the goal of improving availability and capacity factor, and a gener-alized listing of the types of services that GE might provide is presented.
However, no specific plans are given or evaluations made as to the cost
. effectiveness of these possibilities. We believe that the types of services suggested are well known within the electric utility industry and, therefore, reciting them in the Reed Report would be of negligible benefit to any competitor or potential competitor.
We recognize that the actions taken by GE based on the Reed Report may have enhanced their competitiveness in the services market. However, such actions have been occurring over the past 10 years so that GE would be 10 years ahead of any potential competitor that would now begin similar action based on the Reed Report.
- 12. The Wolfe Affidavit states:
that release of the Reed Report would allow competitors to learn of the areas of technology which GE believes offer the best possibil-ities for improving the availability and capacity factor of boiling water reactors.
Competing companies would also learn of those areas which do not offer significant opportunities for improvement
- (para. 17),
that release of the Reed Report would provide perspective to allow competitors to pinpoint their investment in resources to precisely tiose areas which are: (a) most likely to be successful as j
indicated in the Reed Report, and (b) not discussed by the Reed Report and thus, more open to competition (para. 18), and 7
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i I
that the Reed Report makes no attempt to balance th'e opinions'by pro-
]
viding opposing opinions, analyzing the costs of particular recom-
{
mended changes, prioritizing the improvements in terms of importance l
of the problems addressed, or the likelihood of successful j
f im;ilementation of an improvement, or to answer the concerns which such opinions would be likely to raised (para. 5).
l We believe that the third statement above conflicts with the previous two.
f We agree with the later statement as discussed previously. We do not agree that the Reed Report gives much insight into what GE considers the best possibilities, especially today. Since there were literally hundreds of pessibilities listed in.the Reed Report with little evaluation of their merits, the reader could only guess which GE considers the best or which would most likely be successful.
- 13. The Wolfe Affidavit states:
that the future BWR fuels market is likely to be captured by the l
company which provides the optimal approach to the problem of PCI (para. 20),
that.the Reed Report discusses PCI in.ome detail and proposes a s
number of potential approaches,
{
that the ranges of potential PCI approaches are discussed in the Reed Report without regard to merit, and 1
that disclosure of the Reed Report would provide GE's competitors with the range of possible approaches and could be used by competi-tors to validate their approach, provide insights into GE's approach,'
or provide alternate approaches (para. 21).
I i
We note first that the Wolfe Affidavit states that the range of PCI approeches are discussed in the Reed Report without merit. The Wolfe Affi-davit does not point out that the Reed Report notes that substantial infor-mation on pellet-clad interaction (PCI) leakage will not be available until the Spring of 1977 for BWR2s and 3s, or until the Spring of 1978 for BWR4s.
8
m j
't 1
Thus, the infonnation was limited in 1975 when the Reed Report was prepared. Neither did the Wolfe Affidavit point out that fuel failure problems were a concern of the NRC, that such matters were being carefully watched by the NRC, and that information incorporated in the Technical Specifications and other documents was and is available to the public. Also, subsequent to 1975, much has been written on the problem of PCI including a two-volume study published by the American Nuclear..
Society in 1982. LWR Extended Burning-Fuel Performance and Utilization'
~
contains over 50 technica1 articles written by authors all over the world,' including.5 articles by GE personnel.-
)
When the limited and dat_ed discussion regarding PCI in the Reed Report is compared to the information now available, we believe that GE has failed to demonstrate that release of this information would competitively hann GE.
14.. The Wolfe Affidavit notes:
--. that as a result of the downturn in the domestic market for new units, foreign markets represent the only significant opportunity for new reactors (para.22),
'that because of the large number of competitors attempting to secure orders in foreign countries and the limited opportunities, the market-can be accurately characterized as a " buyer's market" (para. 27),
that economic differences between competing proposals are often slight and the choice of suppliers hinges on perceptions concerning the technology that is being offered (para. 27), and
-- _ that obviously the Reed Report could effect these perceptions (para. 27).
We would agree that the Reed Report could effect these perceptions, but we are not.so sure that it would effect these perceptions, or in which direc-
. tion the effect would be.
In our opinion the disclosure of the Reed Report 9
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j could enhance GE's image. This opinion is based on the fact that the Reed
. Report would disclose that GE had a wide understanding of the. range of problems facing BWRs and had taken steps to outline a series of actions that might be'taken to resolve those problems. Of course, the Reed Report would not disclose whether such actions had indeed been taken.
,1
- 15. The Wolfe Affidavit also states that the downturn in orders ~ worldwide I
has caused GE'to reduce the size of its operations and this has caused concern on the part of GE's international customers regarding GE's staying power in the marketplace (para. 28). For these reasons'plus the in-
)
crease in competition for' foreign markets, release of the Reed Report would damage significantly GE's ability to market BWRs abroad (para.30).
We are not sure we understand the relevance of the above discussion.
{
The Reed Report contains negligible discussion of foreign competition or
]
GE's staying power in foreign markets. Presumably, the point is that'
]
the self-critical nature of the Reed Report, and its possible adverse effect on foreigr customers, has been aggravated by the downturn in orders and increased competition in foreign markets. However, as discussed in i
paragraph 14 above, one must first conclude that the introspective l
discussion of the Reed Report would indeed have an adverse effect on f
l GE's image.
i
- 16. The Wolfe Affidavit states that disclosure of the Reed Report would enable domestic and foreign NSSS competitors to meet GE's strategic plan for pro-duct improvement and thus, improve their own product (para. 30).
Most of the findings and recommendations in the Reed Report which may be related to other reactor systems or other companies are of negligible value to others because they:
1 10
Q Q
(a) are not prioritized or evaluated in any significant way as to cost effectiveness; (b) require further study or other actions before they can be implemented; (c) are ten years old, and therefore, do not reflect the increase in knowledge obtained since then regarding nuclear matters, and available in the current litera'ture.
- 17. The Wolfe Affidavit states:
that the Reed Report not only identifies areas in which the BWR can be improved in terms of capacity factor and availability but also, identifies various possible ways to achieve this improvement, and that competitors would thus know the technical areas in which GE, as a marketing strategy, has decided to focus its attention, and its competitors could similarly focus their attention on those areas (para. 30).
j We believe that although the Reed Report lists and discusses l
possibilities for improvements in BWRs and in the GE organization, it falls short of a market strategy because these possibilities are not evaluated or prioritized to any significant degree. Even if it had disclosed a strategy 10 years ago, the significant events that have occurred within the industry since then, and as repeatedly noted in the Wolfe Affidavit, will have necessitated changes in GE's strategy as of today.
11
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- 18. The Wolfe Affidavit states that:
were a competitor to obtain the Reed Report, it would understand the particular technical areas which GE believed most important to pur-sue and would be able to structure its own proposal to counteract GE's strategy (para. 30).
the Report does not provide any balance regarding the nature or ex-tent of the problems addressed, does not provide any perspective on the problems, and rarely addresses the costs involved in solving problems (para. 31).
We believe that the above two statements are in direct conflict with each other because the Report admittedly does not provide any. balance or pro-spective on the problems and therefore, the competitors would have little insight as to which areas GE believed most important. Also, what GE believed to be most important in 1975 is probably not the same today considering the significant changes that have occurred in the industry, as repeatedly noted in'the Wolfe Affidavit.
- 19. The Wolfe Affidavit reiterates its concern that potential customers could be seriously misled by the critical nature of the Reed Report (para. 31).
We discussed earlier how the pluses and minuses resulting from release of the Reed Report would tend to balance each other (paras. 14, 15).
- 20. The Wolfe Affidavit states:
that competitors could use the Reed Report in an effort to demonstrate what they believe to be the relative advantages of PWR technology (para. 32),
that the report thus provides a standard, however incomplete and misleading, to compare PWR and BWR systems (para. 32).
12
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O We believe a potential customer would look at current information which is readily available when comparing PWRs and BWRs rather than relying on a 10 year.old report.
- 21. The Wolfe Affidavit takes issue with Mr. Messier's January 12, 1981 Affi-davit (Messier Affidavit) because his analysis allegedly failed to consider the technical aspects of the Reed Report. The Wolfe Affidavit states that the information the Reed Report contains is no less sensitive to GE because it is technical rather than financial (para. 34). Further, the Wolfe Affidavit takes issue with Mr. Messier's referral to annual reports by stating that the annual reports reveal absolutely nothing_regarding the technical areas which GE believes most important to the successful marketing of its services (para. 35).
P Our previous discussion points out that many of the technical aspects of the Reed Report are not of value to most of GE's competitors because the report is directed toward improvement of GE BWRs. With respect to technically related recomendations contained in the Reed Report that may be applicable, the report is of negligible value to others because the recommendations are not prioritized, are not evaluated as to cost effectiveness, require further study or other actions before they can be implemented, and may no longer be valid due to significant changes within the industry during the past ten years.
- 22. The Wolfe Affidavit takes issue with the Messier Affidavit with respect to the public availability of documents, stating that the Reed Report is not a safety study, and for the most part, identifies and discusses pro-blems with no safety impact (para. 36). The Wolfe Affidavit further states that these identifications and discussions were not publicly available to the NRC (para. 36).
The NRC collects much information that is not directly related to safety, including information on plant shutdowns, plant availabilty and plant capacity factor. Also, although many of the nonsafety related 13
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l 1
items contained in the Reed Report were not required by the NRC in-implementing its regulatory function, they are still publicly available from other sources. The Messier Affidavit referred to regulatory agencies as"an example of where information was available.
It was not meant to be all inclusive. Obviously, it would be impractical to identify document by document all the publicly available information dealing with the issues discussed in the Reed Report. Nor could Mr. Wolfe prove that the issues are not discussed in public documents..
that utilities would not be influenced to GE's disadvantage by the Reed Report because they and their consultants are knowledgeable.
regarding the nuclear systems offered by GE and other suppliers; that Mr. Messier's claim ignores GE's principal concerns over release of the Reed Report.
First, because the Reed Report contains infonna-tion which has allowed GE to develop its marketing strategy,it would enable competitors to help understand that strategy and obtain a com-petitive advantage over GE (para. 37). Second, competitors of GE-would gain the benefits of GE's analysis of issues most pertinent to enhancing availability and capacity factor as well as GE's proposed recommendations for dealing with those issues (para. 37).
These concerns have been addressed earlier in this analysis. Although the i
Reed Report may have allowed GE to develop its market strategy, and the Reed Report discusses possibilities for improvements in BWRs, and in the GE organization, the discussion falls short of a market strategy because of the following. The list of actions that GE could take are in the hundreds with little attempt at "prioritizing the improvements in terms of-importance of the problems addressed or the likelihood of successful implementation of the improvement" (Wolfe Affidavit, para. 5)..Also, this list of unexplored possible actions are now ten years old and most of them are only applicable to BWRs and GE.
14
- 24. Finally, the Wolfe Affidavit states that the Messier Affidavit nores the fact that the market for services to improve availability and capacity factor, as discussed in paragraphs 11 and 14 through 18 above, has only recently come to the forefront (para. 37).
This issue has also been discussed earlier in this analysis. First, the Reed Report contains very little discussion of the service market, presumably for the very reason that it has only recently come to the forefront. Second, the limited discussion that the Reed Report does contain is not prioritized or evaluated as to its probable success.
Third, the discussion is now ten years old.
Fourth, most of the items discussed are general in nature and would be obvious possibilities to those entering the service market.
- 25. The " Wolf Affidavit" ends with the statement that the Reed Report is a' compilation of fact and opinion which is not susceptible to segregation (par.38)..
Although we agree that there are portions of the Reed Report where it might be difficult to separate facts from opinions, we have stated previously that we believe that GE could separate the sensitive from the nonsensitive portions of the Reed Report if they chose to do so.
i 15
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Marcn 17, 1962-Mr.:J.M. Felten, Director l Division of kules and Records FREEDOM OF %
office of Administration U.S. Nuclear Mogulatory Commission
- ACI RENI 2M *II"/7M,,
Wasaington, D.C.
205bb Qu W 4-1-9 L FREEDON OF 'INF0HMA110N ACT REQUEST
Dear Mr. Felton:
Pursuant to tne Freersom of. Information Act, 5 U.S.C.-8 562, L as amended, and the provisions of 10 CFR Part 9, the undersigned aereby ' requests tne folaosing items:
1.
Documentsispecifying the materials used, and tne dimensions and specifications thert.of, for the piping from tne neat exonangers to tne cooling towers at the Perry Nuclear Power Plant, Docket No. 50-440/441.-
2.
Petition for Rulemaking on ATWS by Electric Utilities, Decket No.-PRM-50-29.
(45 FR 73080 (Nov. 4,1980) and
- 46 FR 10501 ( Fe b. 3, 1981) ).
'3.- Advance Notice of Proposed Rulemaking Acceptance' Criteria for. keergency(Part 50), 43 /H 57157 (Dec. 6,1978) and Core Cooling Systems for Light Water Cooled Power Plants-transcripts / minutes of meeting with General Electric and l
NMC Staff in June 1981, discussing proposed changes to the : rule (mentioned in Regulatory Agenda, 46 P!! 53600, Oct. 20, 1981).
4'.
Memorkndum of Chairman Joseph M. Hendrie to Comissioners Gilinsky, Bradford, and Ahearne, "ATWS", dated June L 3, 1981.
5.
NEDO-10812, "dydrogen Flammability and Burning Character-h 1stics in BWR Containments" (April 1973)'
,9 6.
M.P. Paulson and J. ( ~Bradfutu, "Preusure and Temperatare a],
Transients Romulting froad Postulated dydrogen Fires in Mark III Containments" EI 75-4, Energy, Inc.
l' 7..
General Electric Nuclear Reacter Study and its related sub-Task. Force Reports, generally known as the Reed Report (see CLI-80-35,12 NRC 409 ' for the decision
'i regarding public disclosure of this document).
$V in accordance with the-Commission's policy as related in your
.Q-response to my earlier POIA request' (F0IA-81-516), I request that e
76% of the fees insurred for the search and production of those i
deemsents related to a contention admitted in the Perry proceeding by waived.
The above doomsents relate to the Perry proceeding
]
as follows:-
- 1 relates to. Issue #3 (ge, LPB-81-24,14 NRC 175 (July 28,1981).
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FoIA Roguest, y'..S'
- #2 and M relate to Issue #6 (gg, LFS-41-84,14 MRC 175
.(July SS, 1981)).
- 6 and #6 relate to Issue #S, ' admitted by a Memorandum and Order ~
dated March 3,:1982.
- 7 - since the sontents of 1'is' document are unknown to this
' requester,. it is. net'.known how the Reed Report relates to any contention. admitted to ths Ferry.proceedin6 It 3.s entirely possible that portions of the hood Report are relevant to one or more of the contentions admitted-by the AELB.
If this is the case, the cost.
of product those portions of the. report saould be
. reduced 7 Tais requester a6rees to accept the residual (25f,) charges for items 1-6 and'the charges,.as' appropriate, for item 7.
Thank you' for your assistance.
Sincerely, Susan L. Hiatt OCRE Interim Representative 8276 Munson Rd.
Monter, OH 44060 (216) 255-3168 d
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