ML19338C150

Saginaw Valley Intervenors' Suggestions as to Questions to Be Certified Re Use of Comparative &/Or Proprietary Info

ML19338C150
Person / Time
Site:	Midland
Issue date:	07/12/1971
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, Saginaw Intervenor
To:
References
NUDOCS 8008050602
Download: ML19338C150 (5)

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INTERVENORS SUGGESTIONS AS TO QUESTIONS TO BE CERTIFIED WITH ,

4 RESPECT TO THE USE OF COMPARATIVE l AND/OR PROPRIETARY INFORMATION l Saginaw Valley et. al. , Intervenors ("Intervenors"), have asserted to the ASLB (" Board") that they canr.at adequately make out their case in connection with.the lodine removal spray system without access to, for limited purposes, certain Westinghouse proprietary reports dealing with the analysis of the effec-tiveness of reagent additives to a iodine removal spray system, under environ- ,

mental conditions equivalent to those inhering in a LOCA.

The Board has not permitted Intervenors to rely upon or use the claimed proprietary information of a vendor other than B&W, and particularly Westinghouse; I and indeed even though the Board eulier granted Intervenors the right to review the Westinghouse. proprietary report dealing with the iodine spray removal system -

in order to make a convincing showing of need, later rulings of the Board practically prevented Intervenors from accomplishing such a showing. This is because the l Board, after objection by other parties, including Westinghouse, refused to permit

- Intervenors permis sion to show the subject report to a named chemist (under ,

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! adequate protective arrangements), without whon. 5tervenors asserted and still 80080rr0 h 2 h a

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claim it is impossible for Intervenors even to make such a limited showing.

Additionally, Intervenors point out that they had earlier made the argument that in a hearing dealing with nuclear safety and undue risk, comparative analysis is important and indeed necessary in order for the Board to arrive at a sound decision as to the issues of health and safety of the public.

Indeed it is axiomatic that Applicant and staff regularly rely upon

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I- comparative analyses and there is no good reason why the Board should deny Intervenors a similar right to information to make comparative analyses. Claims  ;

of proprietary information can be resolved by adequate protective measures rather l than denial of access to information..

As a general requirement we note that Footnote 1 to section 50.34 of the Rules and Regulations provides:-

"The applicant'may provide information required by this paragraph (the contents of a PSAR) in the form of a discussion with specific references, of similarities to and differences from, facilities of similar design for which applications have previously been filed with the Commission. "

Thus the Rules and Regulations contemplate that the PSAR will discuss comparative information among the pressurized IIght-water reactors, whatever their origin; and it is also true that the regulatory staff, in its safety evaluation, relies upon comparative information.

The effect of the Board's ruling with respect to the proprietary reports not only has the limited effect of depriving Intervenors the right to make a compar-ative analysis of the iodine removal spray system, but also deprives Intervenors'of the ability to provide the Board with their position on the B&W reactor in light of Intervenors' interpretation of comparative information; and this restriction is .

singularly placed upon the Intervenors, since the Board has accepted and continues i l

to accept information from the Applicant and the regulatory staff which, by defini- 1 1

tion, is based upon comparative analysis.

Accordingly and in light of these legal issues, Intervenors suggest the

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following questions become the subject of certificz. tion to the Appeal Board, or the l

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!AEC,'in order to further guide the Board not only in an anatysis of the iodine e uoval spray system but also in the analysis of other systems as to which eomparative information will be sought by Intervenors, including, but not limited to, the emergency core cooling system.

- I. In a contested hearing is it appropriate for an ASLB, in the course of deciding safety questions concerning a proposed

reactor design by Vendor A, to hear and receive evidence .

concerning the design of a similar reactor by Vendor B, in ,

an effort to make a comparative analysis toward the resolu- <

tion of safety isams.

- H. Is it a violation of the Administrative Procedure Act, the Atomic Energy Act and/or the Rules and Regule.tions of the . I Atomic Energy Commission to permit an applic ant, by virtue .

of the PSAR, to introduce information of a comparative nature dealing with safety issues, to permit the regulatory staff, by virtue of its safety evaluation, to introduce conclusions and

- opinions based upon comparative analyses, and to allow in evidence conclusions and opinions of the ACRS, which are based .

in whole or in part upon comparative information, and at the .,

same time deny Intervenors access to information Jwhich denial pre-vents them from making submissions of a comparative nature. -

IIL If a party to a proceeding asserts and makes a general showing of relevance as to particular information, may an ASLB properly

deny the moving party access to the information based upon a - ,

i claim that the information is proprietary, .without giving the moving party an opportunity to have a hearing upon a claim of proprietary.

IV.- May an ASLB deny an Intervenor access to material claimed pro-prietary, without reaching the issue of proprietary, by deciding.

sua soonte that the moving party does not need the information and o not provide the information to the Intervenor for the limited purpose h

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r) of demonstrating to the Board that its unilateral decision as to the

' absence of relevance was 'not based upon all of the evidence.

V. If an Intervenor moves for the production of a document pursu-ant to section 2.724 or otherwise,and the responding party claims

- the material is proprietary, what standards or criteria must t).e ASLB follow in order to resolve the issue fairly.

VI. If an ASLB, upon an application for material claimed proprietary, permits the moving party to review the' material for the limited purpose of demonstrating to the Board relevance and need, must the ASLB permit the moving party to show the desired information to a sufficient number of experts in order that the moving party is I in a practical position to make an adequate showing.

VH. If the regulatory staff bases its opinion in whole or in part as to l 1

adequacy of a particular proposed system or design upon compara-tive analysis, may an ASLB give any weight to such opinion unless it makes available to all other parties all documents used or relied .

upon by the regulatory staff in the course of its reaching its conclusion.

VEL In the specific context of Intervenors' request here for access to the .

Westinghouse iodine removal spray system, was the Board correct 1 in denying Intervenors any right to use such information and, if the

. Board was incorrect, what standards or criteria must the Board .

. follow fairly to resolve the l'asues presented.

IX. In the specific context of the issue raised by Intervenors, was the Board correct in not permitting Intervenors permission to show the ]

proprietary information to a named chemist in aid of Intervenors' demonstration of relevance and need, and if the Board was incorrect, whg =tandards or procedtires should be followed by the Board in l ord.ye tp'rgsolv,e the issues fairly.-

X.' If the Intervenors have demonstrated on the record tiiat there is n' conflict as to a specific chemical analysis directly related to safety c 'e e

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q i Q' i between the analysis used by Reactor Vendor A and the analysis i

used by Reactor Vendor B, must an ASLB, using appropriate jn l-camera protective ansasures, make available the information of

j. ' Reactor Ver. dor B in order to permit Intervenors adequate opportun-

ity to prepare their case.

h .. XI. Do the provisions and procedure of section 2.744 apply when the i

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i I moving party seeks proprietary information in the possession of i  ! a person not a part of or relatm a the AEC, and if not what pro-i l

cedures do apply.

XII. In the resolution of what issues of safety are relevant, can an

1. ASLB foreclose Intervenors' inquiry upon the theory that the ASLB ,

itself discerns no problem, despite the fact that the Rules and I Regulations of the AEC give Intervenors all the rights of a party and do not apparently restrict the Intervenors solely to the role i

of assisting the ASLB.

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' CONCLUSION Intervenors make this submission not only as a statement of the questions

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' to be certified, but also as additional authority in support of Intervenors' motion

-l for reconsideration of the Board's denial of permission to use the relevant Westing- f

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I house information claimed proprietary.

i pect blly submitted, M

Myron M( ' pherry

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Attorney for Saginaw Valley et, d. Intervenors

' - l 9 Dated: . July 12,1971 CERTIFICATION

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I certify that a copy of this document was served upon the ASLB and all parties in open hearing on July 12,1971 and that a copy was mailed to the Secretary f

of the AEC and to counsel for Westinghous Electric Corporation post prepaid and properly addressed on July 11, 1971. 7 Myron M.}herry - [

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