ML20041C331

Motion to Certify ASLB Determination in 820202 Order.Page 9, Re Sua Sponte Question,To Commission.Alternatively Requests ASLB Forward Order to Ofc of General Counsel & Commission for Commission Determination.Certificate of Svc Encl

ML20041C331
Person / Time
Site:	Point Beach
Issue date:	02/23/1982
From:	Cowman B, Davis F, Keurick J WESTINGHOUSE ELECTRIC COMPANY, DIV OF CBS CORP.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OLA, NUDOCS 8203010174
Download: ML20041C331 (9)

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3dG3 9 y UNITED STATES OF AMERICA'82 FEB 25 A!1 :12 FEB2G N ;79 NUCLEAR REGEATORY COMMISSION

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5%" ts fore the Atomic Safety and Licensing' Board 4

1. i In the Matter of  :

WISCONSIN ELECTRIC POWER COMPANY  : Docket Nos. 50-266-OLA

50-301-OLA (Point Beach Nuclear Plant,  :

Units 1 and 2)  :

J MOTION TO CERTIFY SUA SPONTE QUESTION TO COMMISSION Westinghouse Electric Corporation (" Westinghouse")1 hereby moves the Atomic Safety and Licensing Board (" Board")

to certify to the Nuclear Regulatory Commission (" Commission")

pursuant to 10 CFR S 2.718 (1) the Board's determination with respect to sua sponte as set forth on page 9 of the Memorandum and Order (Concerning the Burden of Going Forward on Confiden-tiality Issues) dated February 2, 1982. In the alternative, Westinghouse requests the Board, pursuant to 10 CFR S 2.730(f) and the Commission Memorandum, Chilk to Rosenthal, Cotter and Bickwit, " Raising of Issues Sua Sponte in Adjudicatory Pro-ceedings" dated June 30, 1981, to forward a copy of its order 7 to the Office of the General Counsel and to the Commission .

for appropriate determination by the Commission.

1 Westinghouse is appearing specially in this proceeding to protect its proprietary information from disclosure.

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@203010174 820223 PDR ADOCK 05000266 -

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. 3 This matter involves the question of appropriate treatment of information claimed by Westinghouse to be proprietary. The issue raised by the intervenor is whether certain specific sections of the Westinghouse sleeving report should be publicly disclosed pursuant to 10 CFR S 2.790 (b) (5) . Also involved is the question of treatment ' the underlying affidavit submitted by Robert i A. Wiesemann on behalf of Westinghouse (the "Wiesemann Affidavit") and whether that affidavit must be publicly disclosed. In its Memorandum and Order (Concerning Pre-liminary Confidentiality Issues) dated December 21, 1981, ,

i the Board concluded that notwithstanding the fact that the j proprietary issue relating to the Wiesemann Affidavit had not been raised by the intervenor, the Board would reach and decide the issue. There the Board stated: ,

"Now we come to an issue that Decade has not raised; hence, we are reluutant to reach it. However, despite the contrary precedent set when the Appeal Board in North Anna sidestepped a confidentiality issue that was not squarely presented, we conclude that the rules require us to determine the validity of Westinghouse's proposal that its documents 7 be withheld. There is no requirement that Decade have any interest in this matter (though we are grateful to it for alerting us to our responsibilities)." (p. 18)

Westinghouse, in its Motion for Reconsideration of December 21, 1981 Memorandum and Order dated December.31,

4 9 1981, urged the Board to reverse this decision and delete therefrom all determinations not raised by any party.

I On February 2, 1982, the Board issued its most recent Memorandum and Order, and again rejected the argu-j ment that it not consider confidentiality issues not raised by any party. In so doing, the Board, in discussing propri-etary issues relating to the Westinghouse sleeving report, took upon itself a supervisory role over the Staff. In our view this action violates the Commission's sua sponte rule whereby " Matters not put into controversy by the parties will be examined and decided by the presiding officer only where he or she determines that a serious safety, environ-mental, or common defense and security matter exists."

(10 CFR S 2.760a). No such determination was ever made here in the instant case and, indeed, the Board's apparent justification for its review is because of its claim that the Staff review was inadequate. Clearly, the question of whether or not documents are proprietary and whether they should be released to the public does not raise, in the present context, any safety, environmental, or common de-

fense and security matter.

On June 30, 1981, the Commission, speaking through its Secretary, directed licensing boards with regard to the handling of sua sponte issues. The Commission requested

that a licensing board file a separate order making the i requisite findings, briefly state its reasons for raising  !

the sua sponte issue, and forward a copy o the Office of  ;

the General Counsel and to the Commission. None of these ,

steps has been undertaken by the Board in the present case.

Although the Board claims that the limitation on its sua sponte authority "does not limit our exercise of our pro-cedural discretion" (Memorandum and Order, p. 9), the Com-mission's interpretations of sua sponte authority dictate otherwise. On December 29, 1981, the Commission issued an Order in the Comanche Peak case, Texas Utilities Generating Company, et al. (Comanche Peak Steam Electric Station, Units 1 and 2), Docket Nos. 50-445, 50-446, December 29, 1981. In that case, the licensing board had set forth factors which it believed justified the exercise of its sua sponte authority to retain, pending completion of appropriate Staff review, eight contentions raised by an intervenor who subsequently was dismissed from the proceeding. The reasons given by the licensing board as supporting its sua sponte action included the " prevention of continued delays in the proceeding", and the absence of threshold information sufficient to justify dismissal of the contentions. The Commission found that "neither factor establishes 'that a serious safety, environ-mental, or common defense and security matter exists'" and,

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. .t absent such a finding the Board improperly retained the i

contentions. (p. 2).

The Commission in the Comanche Peak decision re-jected the licensing board's attempt to use its sua sponte  ;

t authority as a potential case management tool. It noted that "taken to its logical conclusion, the Board's proposi-tion could lead to the routine supervision of the staff's safety review until such time as the Board could evaluate the adequacy of the results of that review."- (p. 3).

This assertion of the licensing board's sua sponte authority to monitor or otherwise manage the course of a proceeding

was declared by the Commission to be "not an appropriate  !

use of this power granted licensing boards."

l In the instant case, the Board's claim that all it is doing is exercising its " procedural discretion" is very similar to the effort of the licensing board in Comanche Peak. It is clear in the present case that re-sponsibility for proprietary determinations rests with the Staff. Although Westinghouse believes that the Board has no jurisdiction to review such Staff determination, at the very least the jurisdiction extends no further than the issues specifically raised by the intervenor. The clear dictates of the Commission cannot be avoided by the Board describing its action as an " exercise of . . . procedural

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discretion" or the Board claining that even if the sua sponte rule applies, the Board is not prohibited from further inquiry into an issue already raised. As so aptly put by the Commission in Comanche Peak, such fur-ther inquiry confuses the Board's power to shape the course of a proceeding with its limited authority to shape the issues of the proceeding. (Comanche Peak, p. 2). !

Further, where, as here, the Board action could be considered an exercise of its sua sponte power, the Board should follow the Commission dictates and advise j the General Counsel and the Commission of its decision.

j In the Palo Verde case, Arizona Public Service Company, 1

et al. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3 Operating License Proceedincy , Docket Nos. STN 50-528-OL, 50-529-OL, 50-530-OL, December 11, 1981, the licensing board issued a separate order on a sua sponte issue and forwarded a copy to the Office of the General Counsel and to the Commission. It did so because the mat-ter "could be deemed to be an exercise of the Board's sua sponte authority." Where, as here, the Board has admitted that it has reached and decided an issue not raised by any party, where the Board has clearly noted that it is con-cerned about matters beyond the interest of the intervenor and does not restrict its interest to those of the intervenor,

where the Board has claimed that the limitation on its sua sponte authority is avoided because the matter is one of exercise of procedural discretion, where the Board has stated that even if the sua sponte rule applied, the Board would not be prohibited from further inquiry into an issue already raised, and where the Board clearly has indicated its belief that there are circumstances where the Board may take up proprietary matters "on its own",

we submit that this matter should be certified or forwarded to the Commission for appropriate determination.

Respectfully submitted, eM I

- d (l 'd (1Li O% . k /

Counsel for Westinghouse Electric Corporation Dated: February 23, 1982

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '82 FEB 25 All :12 R Ad Before the Atomic Safety and Licensi g: Board M

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In the Matter of  :

WISCONSIN ELECTRIC POWER COMPANY  : Docket Nos. 50-266-OLA

50-301-OLA (Point Beach Nuclear Plant,  :

Units 1 and 2)  :

i CERTIFICATE OF SERVICE I hereby certify that copies of the " Motion to Certify Sua Soonte Question to Commission" were served upon the persons listed on Attachment 1 to this Certifi-cate of Service by deposit in the United States Mail (First Class), postage prepaid, this 23rd day of February, 1982.

/ 0 Barton Z. CowM Counsel for Westinghouse Electric Corporation

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Service List-WISCONSIN ELECTRIC POWER COMPANY (Point Beach Nuclear Plant, Units 1 and 2)

Peter B. Bloch, Esq., Chairman Stuart A. Treby, Esq.

Atomic Safety and Licensing Board Office of the Executive Legal Director Panel U.S. Nuclear Regulatory Commission i U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Francis X. Davis, Esq.

Dr. Jerry R. Kline Westinghouse Electric Corporation Atomic Safety and Licensi,ng Board Nuclear Energy Systems Division Panel P. O. Box 355 U.S. Nuclear Regulatory Commission Pittsburgh, Pennsylvania 15230 Washington, D.C.,20555

, Bruce W. Churchill, Esq.

Dr. Hugh C. Paxton , Gerald Charnoff, Esq.

1229 - 41st Street Shaw, Pittman, Potts & Trowbridge Los Alamos, New Mexico 87544 1800 M Street, Northwest Washington, D.C. 20036 Atomic Safety and Licensing Board Panel Barton Z. Cowan, Esq.

U.S. Nuclear Regulatory, Commission John R. Kenrick, Esq.

Washington, D.C. 20555 Eckert, Seamans, Cherin & Mellott 42nd Floor, 600 Grant Street Atomic Safety and Licensing Pittsburgh, Pennsylvania 15219 Appeal Board Panel U.S. Nuclear Regulatory Commissio~

Washington, D.C. 20555 Docketing and Service Section cc: Nunzio J. Palladino, Chairman

, Office of the Secretary Victor Gilinsky, Commissioner U.S. Nuclear Regulatory Commission Peter Bradford, Commissioner Washington, D.C. 20555 John F. Ahearne, Commissioner Thomas M. Roberts, Commissioner Charles A. Barth, Esq. U.S. Nuclear Regulatory Commission Office of the Executive Legal Washington, D.C. 20555 Director U.S. Nuclear Regulatory Commission Leonard Bickwit, Esq.

Washington, D.C. 20555 General Counsel Office of the General Counsel Kathleen M. Falk, Esq. .U. S . 4 Nuclear Regulatory Commission Wisconsin's Environmental Decade Washington, D.C. 20555 Suite 208, 114 North Carroll Street -

Madison, Wisconsin 53703 1

i Attachment 1

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