ML20196D768

New England Coalition on Nuclear Pollution (Necnp) Motion to Applicant to Respond to Necnp Second Set of Interrogatories & Request for Production of Documents on Necnp Contention Iv.* Certificate of Svc Encl

ML20196D768
Person / Time
Site:	Seabrook
Issue date:	02/10/1988
From:	Spielberg A HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
References
CON-#188-5600 OL-1, NUDOCS 8802180055
Download: ML20196D768 (8)

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February 10, 1988 00}gETED p

UNITED STATES NUCLEAR REGULATORY COMMISSION- , .

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 'BB FEB 16 Pl217 -

) gFFICE CF SECi:OM f E4 OCKEiftg.^4vd.

In the Matter of. )

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Public Service ~ Company of ) .

New Hampshire, et al. ) Docket No. 50-443 OL-1 VY Cl-/.

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(Seabrook Station, Units 1 & 2) ), ONSITE EMERGENCY

) PLANNING & TECHNICAL

) ISSUES-

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NEW ENGLAND COALITION ON NUCL' EAR POLLUTION'S MOTION TO COMPEL APPLICANTS TO RESPOND TO NECNP'S SECOND SET OF ,

INTERROGATORIES AND REQUEST FOR PP.ODUCTION OF DOCUMENTS ON NECNP CONTENTION I.V. ,

Pursuant to 10 C.F.R. 5 2.740(f)(1), the New England Coali-tion on Nuclear Pollution ("NECNP") hereby moves for an order compelling Applicants to produce the document they have ,

identified in their response to interrogatory 5g), Villasor, j A.P., Jr., "Steam Generator Tube Plugging Margin Analysis for the Seabrook Nos. 1 & 2 Nuclear Power Plants", WCAP 10413, Westing-house Nuclear Energy Systems, Pittsburgh, Pa., November 1983.

Applicants have objected to produe:ing this document on the grounds that it contains informathn "proprietary" to Western Electric Corporation, and have refused to produce it until NECNP agrees to an "appropriate protective order".1 i

1 Egg APPLICANTS' RESPONSES TO NEW ENGLAND COALITION ON l NUCLEAR POLLbrIONS'S SECOND SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS TO APPLICANTS ON NECNP CONTENTION I.V. at 7 (January 26, 1988).

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2 Ir Applicants refusal to produce this document is without i basis. First, Applicants have failed to apply for a protective

[ order under 10 C.F.R. 5 2.740(c). Ege 10 C.F.R. 5 2.740(f) (1) .

[ More importantly, Applicants have failed to meet their burden of proof of establishing that a protective order is indeed

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i appropriate in this instance.

i-F Before Applicants can legitimately refuse to produce a docu-ment requested by NECNP on grounds that it is objectionable, as Applicants have done here, they must first seek a protective t

order from this Board. 10 C.F.R. 5 2.740(f) (1) . Simply stating that the requested discovery is objectionable is no excuse for failure to produce the document. See In the Matter of Illinois E

} Power Q22, (Clinton Power Station, Unit 1), 14 NRC 1735, 1738 y (1981). At the very least, Applicants must set forth with specificity the basis for their objection to a particular docu-f ment, including the document claimed to be privileged, the type h of privilege asserted, and the precise reasons why they believe the privilege applies to the document. Applicants must set forth all of the matters necessary to establish "good cause" for the

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f issuance of a protective order. In the Matter of Lona Island Lichtina Co. (Shoreham Huclear Power Station, Unit 1), Docket No.

50-322-OL (Emergency Planning), 16 NRC 1144, 1153 (1982).

Applicants have not set forth the necessary information in b

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- this instance. In their response to NECNP's interrogatories and  :

document request, Applicants object to production of the steam generator tube plugging document on the grounds that the document contains information "proprietary" to Westinghouse Electric Corp.

We note that the Commission regulations do not identify "proprie-tary" information as one of the classes of "privilege" entitling a party to a protective order. 10 C.F.R.'$ 2.740(c).

Presumably, Applicants are claiming a privilege based on trade secrets or other confidential research, development, or commercial information. 10 C.F.R. $ 2.740(c) (6) . Before Applicants are entitled to some protection for the release of documents which allegedly contain such information, however, Applicants must carry their burden of proving that the documents claimed to be in need of protection are actually within the scope of the claimed privilege. See, e.a., ggnturion Industries. Inc.

v. Warren Steurer & Associates, 665 F.2d 323, 325 (10th Cir.

1981).2 To demonstrate privilege based on trade secrets or other 2 As between all parties except the staff, the legal authorities and court decisions pertaining to the Federal Rules ,

of Civil Procedure pr' ovide appropriate guidelines for interpret-ing NRC discovery rules. Allied-General Nuclear Services, (Barn-well Fuel Receiving and Storage Station), LBP-77-13, 5 NRC 489 (1977); In the Matter of Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), Docket No. 50-322-OL (Emergency '

Planning), 16 NRC 1144, 1157 (1982)..

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4-confidential research,_ development, or commercial information,

- first, Applicants must demonstrate that the particular document to be protected is actually a confidential document of some sort.

See, e.a., Centurion Industries. Inc. v. Warren Steurer & Associ-ates, 665 F.2d at 325; Zenith Radio Corn. v. Matsushita Electric Industries Co., 529 F. Supp. 866, 889-90 (E.D. Pa. 1981).

Applicants must show that the document for which they seek a pro-tective order not only contains "information of the type customarily held in confidence by its originator but also (that) there is a ' rational basis' for so treating it." In the Matter of Kansas Gas and Electric Co. (Wolf Creek Nuclear Generating Station, Unit No. 1), STN 50-482, 3 NRC 408, 417 (1976). Second, Applicants must show that they (or Westinghouse Electric Corpora-tion) will suffer a clearly defined and very serious injury to their competitive position if disclosure is not protected in some way. Idz; Citicoro v. Interbank Card Association, 478 F. Supp.

756, 765 (S.D.N.Y. 1979). Conclusory assertions and assertions of counsel alone are inadequate to satisfy Applicante' burden under the regulations. See, e.qt, Hunter v. International Sys-tems & Controls Coro., 51 F.R.D. 251 (W.D. Mo. 1970); Technical Taoe Coro. v. Minnesota Mininc & Manufacturina Co., 18 F.R.D. 318 (S.D.N.Y. 1955); see also In the Matter of Kansas Gas and Elec-tric Co. (Wolf Creek Nuclear Generating Station, Unit No. 1), STN 50-482, 3 NRC 408, 417-18 (1976) ; In the Matter of Vircinia Elec-tric and Power Co., (North Anna Nuclear Power Plant, Units 1 &

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F 2), 10 NRC 23,-26-28 (1979).

Finally, Applicants must also show that the harm they will suffer from disclosure outweighs the public interest and common law presumption that the public should have access to all dis-covery materials. ERR In re coordinated Pretrial Proceedinas in Petroleum Products Antitrust Litlaation, 101 F.R.D. 34 (C.D. Cal.

1984) (plaintiffs and intervenor publisher sought lifting of seal on pretrial materials submitted in number of consolidated antitrust proceedings against major oil companies). There is a strong public interest in conducting all phases of adjudicatory l

hearings in a manner which is as open as possible to public scru-tiny. That interest is disserved by placing "a veil of secrecy over some aspect of a licensing proceeding in the absence of a concrate indication that it was necessary to do so to avoid sig-nificant harm to a competing, equally cognizable interest." In the Matter of Kansas Gas and Electric Co. (Wolf Creek Nuclear Generating Station, Unit No. 1), STN 50-482, 3 NRC 408, 417 i l

(1976) (footnote omitted) . Only trade secrets or material so com-mercially sensitive that disclosure would cause more harm to l

Applicants than nondisclosure would cause to the public interest should not be made publically available.

l l Applicants have'not made even the threshold showings neces-I sary to establish entitlement to a protective order. The simple statements made by Applicants that this document contains information "proprietary" to Westinghouse give no indication as l  !

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,' .6-to why this prec%se document should be protected from normal pub-lic disclosure. There is no indication that this document con-tains actual trade secrets or other confidential information nor of what harm Applicants or Westinghouse Corporation might suffer from public disclosure. Applicants have not even submitted an affidavit from an individual with personal knowledge attesting to the nature of confidential information at issue. Egg In the_ Mat-ter of Kansas Gas and Electric Co. (Wolf Creek Nuclear Generating Station, Unit No. 1), STN 50-482, 3 NRC 408, 417-18 (1976); In the Matter of Vircinia Electric and Power Co., (North Anna Nuclear Power Plant, Units 1 & 2), 10 NRC 23, 26-28 (1979).

The public interest clearly favors public access to dis-covery documents in this instance because the steam generator tube inspection contention raises serious issues concerning the safety of the Seabrook plant. It is precisely because of the importance of public participation in and involvement with licensing proceedings that interested parties are allowed to lit-igate contentions about safety issues in the first instance.

Accordingly, because Applicants have failed to make the req-uisite showing that they are entitled to a protective order, NECNP respectfully requests an order from this Board compe) ling them to produce Villasor, A.P., Jr., "Steam Generator Tube Plug-ging Margin Analysis for the Seabrook Nos. 1& 2 Nuclear Power

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Plants", WCAP 10413, Westinghouse Nuclear Energy Systems, l Pittsburgh, Pa., November 1983, identified in Applicants' l

l response to interrogatory Sg).

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1 Respectfully submitted, 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 February 10, 1988, copies of the foregoing pleading were served by first-class mail on all parties listed on the attached service list.

[lsa Ahne Spielbefg L._______ _ _ _ _ _ _ _ _ __ _ __ _ . _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ . . _ _ _ _ _ _ _ _ _ .

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Uwkc SEABROOK SERVICE LIST - ONSITE LICENSING BOARD Sheldon J. Wolfe, Chairman North Hampton, NH 03S26 111 LowellStreet Atomic Safety and Licensing Manchester,NH 03105 Charles P. Graham, Esq.

Board J.P. Nadeau McKay 'and Graham < r

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Town of Rye Greg Bery 100 U.S. NRC Washington,D.C. 20555 155 Washington Road NRC Amesbury, h Rye,New Mr.mpshire 03870 1155 Rockvdle Pike Dr. Jerry Harbour 1 White Flint North Atomic Safety and Licensing Richard E. Sullivan, Mayor Rockvdle,MD 20852 Board City Hall U.S. NRC Newburyport,MA 01950 Mr. Angie Machiros, Washington, D.C. 20555 Chairman Alfred V. Sargent, Chairman Town of Newbury Dr. Emmeth A. Luebke Board of Selectmen Town Hall,25 High Road 5500 Friendship Blvd. Town of Salisbury,MA 01950 Newbury,MA 01951 Apartment 1923N ChesyChase,MD 20815 Senator Gordon J. Humphrey George Dana Bisbee, Esq.

U.S. Senate Geoffrey M. Huntington, Esq.

Atomic Safety and Licensing Washington, D.C. 20510 Office of the Attorney General Board Panel (Attn. Tom Burack) State House Annex U.S. NRC Concord,NH 03301 Washington,D.C. 20555 Selectmen of Northampton Northampton, New Hamp- Allen Lampert Atomic Safety and Licensing shire 03826 CidlDefense Director Appeal Board Panel Town of Brentowood U.S. NRC Senator Gordon J. Humphrey Exete.r, NH 03833 Washington, D.C. 20555 1 Eagle Square, Ste 507 Concord,NH 03301 Richard A. Hampe, Esq.

Dock', ting and Service Hampe and McNicholas U.S. NRC Michael Santosuosso, 35 Pleasant Street Washington, D.C. 20555 Chairman Concord,NH 03301 Board of Selectmen Mrs. Anne E. Goodman Jewell Street, RFD # 2 Gary W. Holmes, Esq.

Board of Selectmen South Hampton,NH 03842 Holmes & Ellis 1315 New Market Road 47 Winnacunnent Road Durham,NH 03S42 Judith H. Mizner, Esq. Hampton,NH 03842 Silverglate, Gertner, et al.

William S. Lord, Selectman 88 Broad Street Wilham Armstrong Town Hall- Friend Street Boston,MA 02110 CivilDefense Director Amesbury,MA 01913 10 Front Street Rep. Roberta C. Pevear Exeter,NH 03833 Jane Doughty Drinkwateriuad Hampton, Falls, NH 03844 CaMn A. Canney SAPL 5 Market Street City Manager Portsmouth,NH 03S01 Phillip Ahrens, Esq. City Hall Assistant Attorney General 126 Daniel Street Carol S.Sneidct, Esquire State House, Station # 6 Portsmouth,NH 03801 Assistant Attorney General Augusta, ME 04333 1 Ashburton Place,19th Floor Matthew T. Brock, Esq.

Boston,MA 02103 Thomas G. Dignan, Esq. Shaines & McEachern R.K. Gad II, Esq. P.O. Box 360 Stanley W.1;nowles Ropes & Gray Maplewood Ave.

Board of Selectmen 225 Franklin Street Portsmouth,NH 03801 P.O. Box 710 J - r C. ' Boston, MA 02110 - . _ . ..

Sandra Gavutis Robert A. Backus, Esq. RFD 1 Box 1154 Backus, Meyer & Solomon East Kensington, NH 03S27