ML20038A984
| ML20038A984 | |
| Person / Time | |
|---|---|
| Site: | Point Beach  |
| Issue date: | 11/12/1981 |
| From: | Ridgway D SHAW, PITTMAN, POTTS & TROWBRIDGE, WISCONSIN ELECTRIC POWER CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20038A983 | List: |
| References | |
| NUDOCS 8111240559 | |
| Download: ML20038A984 (14) | |
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DOCKETED USHEC
'81 EV 19 P2::27 November 12, 1931 0F S?CRETARY ,
^" f SG & SERVICE
. DRANCH UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i Before the Atomic Safety and Licensing Board In the Matter or )
)
WISCONSIN ELECTRIC POWER CCMPANY ) Docket Nos. 50-266
) 50-301 (Point Beach Nuclear Plant, ) (OL Amendment)
Units 1 and 2) )
LICENSEE'S RESPONSE TO ORAL MOTION OF WISCONSIN'S ENVIRONMENTAL DECADE FOR DISCLOSURE OF PEOPRIETARY INFORMATION At the close of hearings held in the above captioned i proceeding on October 29 and 30, 1981, Wisconsin's Environmental Decade (" Decade") made an oral motion for public i disclosure of certain proprietary test information relating to the structural integrity of sleeved steam generator tubes in Point Beach Units 1 and 2 steam generators. Chairman Bloch l
stated for the record Decade's motion as follows (Tr. 721-22):
"I understand that Decade argues particularly that any test that was conducted for safety purposes must be disclosed because it is essential to the record of the pro-ceeding and because tests are different from j proprietary processes themselves."
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4 For the reasons set forth below, Licensee, Wisconsin Electric Power Company (" Wisconsin Electric"), oppose 3 Decade's Motion for disclosure of any proprietary information regarding safety tests as being inconsistent with the Commission's regulations, applicable law and sound public policy.
The ques *. ion of the appropriate treatment of proprietary data has been a ubiquitous and distracting issue throughout the course of this license amendment proceeding.1 Certain docu-ments submitted in support of Wisconsin Electric's application for a license amendment were claimed to contain information which is exempt from public disclosure because of the sensitive proprietary information contained therein.2 Pursuant to 10 C.F.R. S 2.790(b)(1), the documents for which protection from public disclosure is sought were supported by an affidavit 1 See Tr.87-102; 131-43; 155-57; 172-74; 177-78; 191-93; 196-200; 238; 378-80; 389-90; 394-98; 436-64; 496-97; 516; 560-63; 569; 617-19; 621-23; 627-33; 671; 682; 688-89; 693-95; 697-98; 718-23.
2 The documents filed to date in this proceeding which are claimed to contain information which is exempt from public disclosure include: the " Point Beach Steam Generator Sleeving Report for Wisconsin Electric Power Company, WCAP-9960 (Proprietary)"; " Licensee's Response To Second Round of Licensing Board Questions" (October 16, 1981); the " Steam Generator Repair Report For Southern California Edison San Onofre Unit 1"; letter from Licensee to Harold R. Denton, dated October 26, 1981 (4 pages plus attachment); " Licensee's Response To Decade's First Interrogatories and Request For Production of Documents On The Sleeving Demonstration Program" (October 27, 1981); " Licensee's Supplemental Response To Board Question On Deplugged Tubes" (October 29, 1981); and " Point Beach Nuclear Plant Sleeve Design, Results of ASML Code Fatigue and Stress Analyses" (November 6, 1981).
identifying the part considered proprietary and the reasons for such treatment.3 The Board adopted a protective order incorporating the terms of a proprietary agreement drafted by Licensee's counsel to prevent disclosure of proprietary information pending a final decision on the merits of the proprietary claim. Tr.
143. In the interim, Decade was afforded access to all proprietary data to prepare its case. Decade reserved the right to move for public disclosure of the proprietary data.
Tr. 91. 'Ihe Board tentatively planned a telephone conference during the third week in November to consider formally the proprietary data issues in this proceeding. Tr. 137.
In the motion now before the Board, Decade has not challenged the proprietary nature of the bulk of the informa-tion filed by Licensee in support of the license amendment. In fact, Decade admitted that it had "no problem" with the trade 3 See letter from Licensee to Harold R. Denton, dated September 28, 1981, transmitting, inter alia, letter from R. A.
Wiesemann (Westinghouse) to Harold R. Denton, CAW-81-70, dated September 28, 1981, and Affidavit of R. A. Wiesemann, AW-80-53.
That affidavit, which, as the Board has already observed, provides substantial support for the proprietary data claims of Westinghouse and Licensee (Tr. 94), is further supported by separate filings being made by Westinghouse. See also, letter from Counsel for Licensee to Administrative Judges, dated
- September 29, 1981; letter from Counsel for Licensee to Administrative Judges, dated October 16, 1981; letter from Counsel for Licensee to Administrative Judges, dated October 27, 1981; Affidavit of R. A. Wiesemann, dated October 26, 1981; Tr. 561-63; letter from Counsel for Licensee to Administrative Judges, dated November 6, 1981, re
- " Point Beach Nuclear Plant Sleeve Design, Results of ASME Code Fatigue and Stress Analyses."
4 secret aspects of much of the proprietary data in the Westinghouse Report. Tr. 440. Decade argues that the informa-tion regarding certain tests as to the structural integrity of the sleeved steam generator tubes involve issues of " enormous
... public import" and should be disclosed to the public. Tr.
440-41; 456; 460; 628; 632; and 722. However, nowhere does Decade argue that the description of these proprietary tests and the test results do not meet the regulatory standard for trade secret material.4 See 10 C.F.R. S 2.790(b)(4). Rather, Decade baldly asserts -- without citation to any authority to support its arguments -- that "the countervailing interest of the public relating to the safety aspect of it exceeds any proprietary interest that the vendor may have when it comes to the safety test as opposed to the design parameters".5 Tr.
722. Thus, the only issue regarding proprietary data remaining before this Board is this narrow one raised by Decade in its oral motion.6 4 Chairman Bloch did request Licensee and Staff to comment on j why the particulat design verification tests were proprietary, i Tr. 450. Westinghouse Electric Corporation has provided such additional information to the Board in a separate filing being made by Westinghouse.
5 Decade's."brief" in support of this position is to be found by reading the record of the proceeding. See Tr. 723.
l 6 Pursuant to 10 C.F.R. S 2.790(b)(3) the Commission "shall determine whether information sought to be withheld from public l disclosure ... (i) is a trade secret or confidential or privileged commercial or financial information; and (ii) if so, should be withheld from public disclosure." In the first instance, such determination is made by the NRC Staff. See Tr.
- 97. Chairman Bloch raised the issue in a prehearing conference
The controlling law is the Commission's regulation at 10 C.F.R. 5 2.790.7 This regulation is an attempt to balance two competing interests -- ensuring the availability of information (continued) in questioning whether the Board had concurrent jurlsdiction with the NRR Staff in making the determination pursuant to 10 C.F.R. S 2.790. Id. Licensee respectfully suggests that only where there is an issue raised by a party to a proceeding before the Board does the question of disclosure of proprietary information arise. Thus this Board need not consider whether any of the material for which protection from public disclosure is sought is in fact " trade secret or confidential or privileged commercial or financial information." That determination is being made by the NRR Staff based on the affidavits submitted by Licensee and Westinghouse Electric Corporation. Indeed, Decade has not argued in its motion that the proprietary tests and their results do not meet the standards of 10 C.F.R. S 2.790(b)(4). Rather Decade only asserts that the right of the public to be informed outweighs the right of the owner of the proprietary information to have such proprietary information held in confidence by the Commission. See 10 C.F.R. 5 2.790(b)(5). Therefore, this is the only issue before the Board as raised by Decade's motion.
The Board has jurisdiction to consider this one issue that is a matter of controversy. See Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-410, 5 NRC 1398 (1977)(licensing board has jurisdiction over discoverable parts of a security plan and release of sanitized version to p;Wlic); Kansas Gas and Electric Co. (Wolf i Creek Nuclear Generating Station, Unit No. 1), ALAB-327, 4 NRC 408 (1976)(licensing board has jurisdiction over proprietary claims regarding information discovered by a party to a proceeding).
7 See Westinghouse Electric Corporation v. NRC, 555 F.2d 82, 87-88 (3rd Cir. 1977) for a discussion of the structure and operation of S 2.790. Wolf Creek , ALAB-327, supra, is often cited as the controlling case for trade secret issues before l licensing boards. However, in Wolf Creek the issue involved a contract made available only through discovery and the Appeal Board specifically held that neither Section 9.3 nor Section 2.790 applied. ALAB -327 , supra, 5 NRC at 415. Here the test information was provided to the Commission in support of the application for a license amendment and is therefore in the files of the Commission; thus, Section 2.790 applies.
to the public and protecting the privacy and competitive position of the citizen who offers information to assist government policy makers 8 The same considerations which govern the Commission's implementation of the Freedom of Information Act, 5 U.S.C. S 552, apply here. See 10 C.F.R.S 9.3 g seg. Records of the Commission are available to the public (?.0 C.F.R. S 9.4) un3ess specifically exempted (10 C.F.R. S 9.5). Under Section 9.5(a)(4), " trade secret and commercial or financial information obtained from a person and privileged or confidential" are exempted from disclosure.
Similarly under Section 2.790(a)(4), " trade secrets and commercial or financial information obtained from a person and privileged or confidential" are exempted from disclosure.9 The 8 See Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491, 511-12 (1973).
That case is similar to the instant situation in that intervenors there refused to sign proprietary agreements as a matter of principle and complained that they were disadvantaged thereby in the preparation of their case. In ALAB-137, the Appeal Board found intervenors' claim of error unpersuasive.
9 Chairman Bloch questioned whether there was an exact congruity between the right to release documents under the Freedom of Information Act and the standard governing proceedings before the Board. Tr. 99. With regard to information governed by Section 2.790, the Commission made it clear in amending its regulations in 1972 (37 Fed. Reg. 15127 (July 28, 1971)) that "it was not [its] intent to permit a greater degree of withholding of documents from public disclosure under S 2.790 than would be permitted under the Freedom of Information Act." In 1976, S 2.790 was amended to conform the categories of exempted material to the nine categories in the Freedom of Information Act. See 41 Fed. Reg.
11808-809 (March 27, 1976). While in this case the standard to be applied is the same, not all proprietary information issues before the Board are governed by Section 9.3 or Section 2.790.
See ALAB-327, supra.
affidavits supplied by Westinghouse clearly establish that the information meets the test established by Section 2.790(b)(4);
this has not been contested by Decade. The question is whether the "right of the public to be fully apprised as to the bases and effects of the proposed action outweighs the demonstrated concern for protection of a competitive position" of the owner of the information. 10 C.F.R. S 2.790(5).
This regulation must be construed in light of the expressed strong policy of the Congress against disclosure of proprietary information in Commission proceedings. During hearings on the 1954 amendments to the Atomic Energy Act, Congressman W. Sterling Cole, Chairman of the Joint Committee on Atomic Energy, explained the purpose for new language in Section 103(b)(3) of the 1954 Act as follows:10 It permits the Commission to use that data, that information, for purposes of the common defense and security but imposes on the Commission an obligation that they shall not pass that information on to outsiders in order to protect the property right, the commercial right, which a licensee as a developer of a new procedure, new idea, should properly have.
10 Hearings on H.R. 8862 and S. 3323 Before the Joint Comm.
! on Atomic Energy, 83d Cong., 2d Sess, 924 (1954). As discussed l in Westinghouse Electric Corporation v. NRC, supra, 555 F.2d at l 89-91, the 1954 Act reversed the " maximum disclosure policy" of l the earlier 1946 Act. While the Court held that S103(b)(3) was not intended to preclude disclosure of proprietary information in all circumstances, the Commission's regulations must be t construed in light of the clear congressional intent behind the t
organic statute which the Commission's regulations, in part, implement.
We suggest that the relatively new sleeving process and the tests required to verify its effectiveness is exactly the type of information Congress sought to protect. Furthermore, the House Report on the Freedom of Information Act describes in part the rationale of the trade secret exemption of the Tr:t's disclosure requirement as follows:11 It would also include information which is given to an agency in confidence, since a citizen must be able to confide in his Government. Moreover, where the Government has obligated itself in good faith not to disclose documents or information which it received, it should be able to honor such obligations.
In denying a generic challenge to Section 2.790 as inconsistent with congressional policy which disfavors disclosure of proprietary information, the U.S. Court of Appeals for the Third Circuit stated: "There is no reason to believe that in applying this test [10 C.F.R. S 2.790(b)(5)] NRC will disregard the longstanding congressional policy which disfavors dis- j closure of proprietary information or that NRC will disclose proprietary information obtained in a licensing proceeding j other than such as bears on defense and health and safety."
Westinghouse Electric Corporation v. NRC, supra, 555 F.2d at 92.
Decade's arguments in favor of disclosure are generally summarized in the following excerpts from the record:
11 H.R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1964). See Porter County Chapter of the Izaak Walton League v. AEC, 380 F.
Supp. 630, 636 (N.D. Ind. 1974).
MR. ANDERSON: No. We're saying there has been a conclusion drawn by independent bodies about the mind set of the Commission and that the actions of the Commission have been less than favorable, and we think that's led to many members of the public who are serious about their well-being to view the need to have those issues adjudicated amongst the people that are affected become more important if they are to have their interest protected than to pursue them narrowly and exclusively in a Commission forum.
And I think the Commission has made its choice, but it has to recognize the implications of that choice on its own credibility and on the weight of the public who is seriously concerned and feels it has to proceed if you' re going to stop accidents like that which occurred at Three Mile Island. [Tr. 628].
MS. FALK: Mr. Treby, you' re missing the point of public dirclosure. It's not for the handful that are sitting here. It's for the multitude that live near that plant., and it's our ability to translate to them what this Board has decided on safety. And while we have stated several times over and over for the record that our concern with trade secret does not go to numbers, it does go to the conclusions that are drawn from those numbers, and the trade secret order we are under now applies to both. [Tr.
632.]
But, of course, the conclusions regarding these tests as they demonstrate the structural and leak tight (or leak 1
limiting) integrity of the sleeved steam generator tube l
assemblies are not withheld from the public. For example, the Staff's Safety Evaluation Report details the conclusions regarding these tests and provides its own analysis regarding the available safety margins as a result of steam generator
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tube sleeving. See SER S 3.1 (structural and leak tight integrity); S 3.3 (alternate upper joint integrity); S 3.4 (corrosion resistance). The public does not rely on its own evaluation of raw test data, but rather on the licensee's and the NRC's independent evaluation of tests and analyses which demonstrate that proposed licensee actions are acceptable, taking into consideration the health and safety of the public.
While Decade appears to suggest that the Commission has been discredited and therefore all test data should be available to the public so that the public can draw its own conclusions regarding the safety ramifications of the proposed license amendment, that position is on its face absurd, unsupported and certainly not what was contemplated by the Commission's regulations or the statutes on which these regulations are based.
There is a strong public policy argument which is contrary to Decade's public interest argument. Unrestricted release of i
private commercial information would adversely affect the l government's ability to gain access to similar information in the future. The U.S. District Court in Porter County Chapter of the Izaak Walton League v. AEC, supra, 380 F. Supp. at 634, I
found that such release of proprietary information could seriously affect the thoroughness of AEC review of license i
applications, and have an adverse impact on public health and safety.
If the Board were to order release of the proprietary test information, Westinghouse would have the absolute.right to L
demand return of any document which it claimed to contain proprietary information. 10 C.F.R. 5 2.790(c). If Westinghouse chose to do so to protect its commercial inter-ests, the Commission would not have the benefit of the proprie-tary test information in making a decision regarding the health and safety aspects of the proposed license amendment, as this information would no longer be formally before the Commission.12 Licensee would be in a less favorable position in demonstrating to the Commission that the proposed action requiring a license acendment was not inimical to the public health and safety. This situation would not inure to the benefit of anyone.
As the Court noted in Westinghouse Electric Corporation v.
NRC, supra, 555 F.2d at 85: "Much of the information submitted by applicants is not in the public domain and is considered proprietary by both the NRC and applicants." There are sound public policy reasons for this situation. It is consistent with the Congressional policy in enacting the Atomic Energy Act of 1954 and the Freedom of Information Act. It is consistent with the policy of the Commission in adopting its regulations I exempting proprietary information from public disclosure.
These regulations and the Commission's protection of proprie-tary information in reliance thereon have been upheld by the courts. Decade has offered no compelling arguments based on a 12 See Westinghouse Electric Corporation v. NRC, supra, 555 F.2d at 88.
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balancing of the public policy issues for release of this test data., Decade offers no citation to cases, or otherwise, in support of its motion to disclose proprietary information. For all of the above reasons, Decade's oral motion of October 30, 1981 must be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By NE e e_ W f-
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' 'l BruceW. Ch'ur@ hill)
Delissa A. Ridgway Counsel for Licensee 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 Dated: November 12, 1981 1
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
WISCONSIN ELECTRIC POWER COMPANY i Docket Nos. 50-266
) 50-301 (Point Beach Nuclear Plant, ) (OL Amendment)
Units 1 and 2) )
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing
, " Licensee's Response to Oral Motion of Wisconsin's Environmental DecadefbrDisclosureofProprietaryInformation"wereserved, by deposit in the U.S. Mail, first class, postage prepaid, to all those on the attached service list, except that those marked by an asterisk were served by deposit with Federa: Express, this 12th day of November. Those marked by a double asterisk will be re-served, by hand, on the 13th day of November.
f sh AMA
" 'T Delissa A Ridgw p (
Dated: November 12, 1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
WISCONSIN ELECTRIC POWER COMPANY ) Docket Nos. 50-266
) 50-301 (Point Beach Nuclear Plant, ) (OL Amendment)
Units 1 and 2) )
SERVICE LIST 00 Peter B. Bloch, Chairman ** Charles A. Barth, Esquire Atomic Safety and Licensing Office of the Executive Board Panel Legal Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Hugh C. Paxton
- Kathleen M. Falk, Esquire 1229 - 41st Street Wisconsin's Environmental Los Alamos, New Mexico 87544 Decade ll4 North Carroll Street' ooDr. Jerry R. Kline- Suite 208 Atomic Safety and Licensing Madison, Wisconsin 53703 Board Panel ** Stuart A. Traby, Esquire U.S. Nuclear Regulctory
- Office of t,ne Executive Commission ,
Washington,.D.C. 20555 U.S Nuc ea gulatory Atomic Safety and Licensing Wa h tn D.C. 20555 Board Panel U.S. Nuclear Regulatory Commission -
Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel 6.' S . Nuclear Regulatory '
C;mmission Washington, D.C.. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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