ML20087K000

Requests Reconsideration of 801009 Split Vote to Release Reed Rept & Sub-Task Force Repts.Return of Repts Requested. Separate Views of Commissioner Hendrie & Certificate of Svc Encl

ML20087K000
Person / Time
Site:	Black Fox
Issue date:	03/22/1984
From:	Edgar G GENERAL ELECTRIC CO., NEWMAN & HOLTZINGER
To:	Asselstine J, Palladino N, Roberts T NRC COMMISSION (OCM)
References
CON-DSB-73 NUDOCS 8403230186
Download: ML20087K000 (11)

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NEWMAN & HOLTZINGER, P. C. Ei ions conuccricur avcuuc,u.w. 3,$ED

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• JBLL E. GRANT DAvi3 G.POWELL  ?* FREDERIC 5.CRAY DOUILAS O.OREEN MOLLY N.LINDEMAN **

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- ES ..vASiLE March 22, 1984 JANEi.RTAN MICHAEL A.SAUSER DON ALD J. SILVERM AN ALVI N M. O UTT E R M AN JACOLYN A.SIMMONS THOMAS A.SCMMUT2 JOSEPH E.STUSGS ROBERT I. WHITE ROSERT LOWFNSTEIN ,

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HAND DELIVERED Mr. Nunzio J. Palladino Mr. Frederick M. Bernthal Chairman Commissioner United States Nuclear United States Nuclear Regulatory Commission Regulatory' Commission 1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555 's Mr. James K. Asselstine Mr. Victor Gilinsky Commissioner Commissioner United States Nuclear United States Nuclear Regulatory Commission Regulatory Commission 1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555 Mr. Thomas M. Roberts -

Commissioner United States Nuclear  :

Regulatory Commission ,

1717 H Street, N.W. 1 Washington, D.C. 20555 Re: Public Service Co. of Oklahoma, Associated Electric Cooperative, Inc., and Western Farmers Elec-tric Cooperative (Black Fox Station Units 1 and 2), Docket Nos. STN 50-556, STN 50-557  ;

Gentlemen: j On behalf of the General Electric Company (GE) and pursuant to 10 C.F.R. 52. 790 (b) (5) , I respectfully request that the Commis- l sion return to GE's custody the copy of the Reed Report and related l Sub-Task Force Reports which were transmitted to the Licensing l Board under cover of my letter dated January 5, 1979, for the Board's $

use pursuant to the provisions of the Board's Protective Order of l 5

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'Nawmid & Hoz;rztw ns,P. C, i Chairman & Commissioners United States Nuclear i Regulatory Commission

! March 22, 1984 j Page Two

the same date in the above-referenced proceeding.

I respectfully October 9, 1980 request 2-2 that the Commission reconsider itsIn addition,

split vote in the above referenced proceed-l Reports, jing which effectively resulted in a decision to release these ,

j and afford GE the opportunity to appear before the

Commission to be heard or' ally on the matter of reconsideration. .

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) The Reed Report is a confidential internal GE product

improvement study which was designed to determine the technical,

! personnel, and financial resources necessary to obtain improve-ments in the availability of GE's Boiling Water Reactor product.

To the extent that issues with safety implications are discussed,

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j the NRC staff reviews of the Report have concluded that the NRC '

is aware of those-issues and has no need for the Report.

, The Reed Report came into the possession of the NRC pursuant

! issued by the Black Fox ASLB.to a settlement of GE's Motion to Quash a subpo I The Report was received in con-i fidence the under a of faithfulness Protective verbatimOrder and used extractions fromforthe verification Report that of i related to the issues in controversy in the proceeding. The

} ReedinReport upon was not introduced into evidence, nor was it relied decision-making. Public Service Company of Oklahoma has l

cancelled the Black Fox Station nuclear project, and by Order of I March ceeding 7,and 1983, the ASLB withdraw thegranted licensePSO's motion to terminate the pro-application.

Permit decision was never rendered by the ASLB. Public Service A Construction

{ Co. of Oklahoma j NRC 410 (1983). (Black Fox Station Units 1 and 2), LBP-83-10, 17 j

Report Thenooriginal longer purpose exists, andfor NRC's having possession of the Reed it is no longer relevant or neces-  !

j sary to the performance of the Commission's functions. Conse- $

quently port under GE10submits C.F.R. that it is entitled to return of the Reed Re-

52. 790 (b) (5) , which provides : =

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j (5) If the Commission determines, pursuant flJ to paragraph (b) (4) of this section,-that

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l the records ~or document contains trade se- M i crets or privileged or confidential commer- g cial or financial information, the Commis- g gg sion will then determine (i) whether the S i

l right to the public to be fully apprised as to the basis for and effects of the proposed EQ SE

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( */ E Public E9 l and 2), Service CLI-80-35, Co.12 of NRC Oklahoma (Black Fox Station Units 1 409 (1980). g5 i gg i ER

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I NEWMAN & HOLTZINGER, P. C.

I Chairman & Commissioners i United States Nuclear Regulatory Commission March 22, 1984 4

Page Three t

action outweighs the demonstrated concern for protection of competitive position and (ii) whether the information should be with-held from public disclosure pursuant to this paragraph. If the record or document for which withholding is sought is deemed by the Commission to be irrelevant or unnecessary to the performance of its functions, it shall be returned to the applicant. (Emphasis added)

In sum, withholding has been requested; the Reed Report contains no information relating to safety not otherwise available and known to the Commission; the Black Fox proceeding constituted the only basis for the Commission's limited and conditional possessinn of the Report; and that proceeding has been termi-nated. GE therefore submits that there can be no basis to find that the Reed Report is necessary to the performance of the Commission's functions. Consequently the Commission's own regu-lations require that it be returned to GE.

This Commission has never addressed the matter of whether GE's Reed Report should be released to the public, and whether the Commission's October, 1980 2-2 split vote, which effectively resulted in a decision to release the Report, is reflective of current Commission and Administrative policy. The matter has, i

for some years, been the subject of litigation before the United

! States District Court for the Central District of Illinois, and to date, attempts to arrive at a settlement have been unsuccess-ful. Absent reexamination of its position by the Commission, it appears inevitable that further protracted litigation will con-tinue -- litigation which in our view involves unjustified.and

! wasteful diversion of the time and energies of all' parties.

The attached quotation of Commissioner Hendrie'c dissent succinctly highlights the reasons why the October, 1980 decision

was ill-advised when it was issued. Since that decision was issued, the following additional developments have occured

a. 10 C.F.R. 52.790(c) provides that upon denial of a request for withholding from public disclosure, I the submitter of a document has the right to its return. In the pending litigation, the government  !

has argued, based upon an unpublished " policy"

( stated in a letter from the General Counsel to the I

United States Court of Appeals for the Tpird Circuit in the Westinghouse litigation,* that l

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• / Westinghouse Electric Co. v. NRC, 555 F.2d 82 (3dCir. 1977). '

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l l l l , _ _ . . _ . . _ _ _ _ . . . _ _ _ _ . _ _ . . . . - _ . _ . _ _ . _ . . . _ ., _ _.- .._ . _ l

NEWMAN & HOLTZINGER, P. C.

Chairman & Commissioners United States Nuclear -

. Regulatory Commission March 22, 1984 Page Four this provision becomes inoperative once a Free-dom of Information Act (FOIA) request is filed.

' If the government's argument is accepted, then NRC's regulations concerning the protection of proprietary information in its licensing pro-

, ceedings are meaningless and a trap for the unwary.

b. The Black Fox proceedings have been dismissed.

Section 103 of the Atomic Energy Act expressly limits commission disclosure of technical infor-mation and data concerning activities under licenses "only for the purposes of the common defense and security and to protect the health and safety of the public". The Commission has never made the finding that disclosure of the Reed Report is necessary for such purposes, and, in light of the dismissal of the Black Fox pro-ceedings, the only possible basis for such a finding no longer exists.

c. Prior to its October, 1980 split vote the Com-nission voted 4-1 that the Reed Report was not an " agency record" and thus not subject to public

, disclosure under the FOIA. Under the last admin- '

i istration, the Justice Department's refusal to defend that position lead to the October, 1980 2-2 split vote and the consequent decision to release. In 1981, the Justice Department t ok the opposite position in the Western Union p-case on facts and circumstances less favorable j than those associated with the Reed Report.

Further, Circuit's 1983 decision the District in Paisley of Columbia! v. CIA ** accepted a

' Justice Department view of the agency . record

" control test" which is directly contrary to that reflected in the Commission's October, 1980 decision.

GE submits that simple fairness and sound regulatory policy compel reconsideration of the October, 1980 split vote. By that i action and through the positions it has taken in the pending lit-igation, the Commission has santioned the breach of a duly author-ized protective order, relied upon an unpublished " policy" which  !

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• / RCA Global Communications v. FCC, Civil Action No. 81-74, U.S.D.C. Del. .

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• • / Paisley v. CIA,~712 F.2d 686 (1983).

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l NEWMAN & HOLTZINGER, P. C.

Chairman & Commissioners United States Nuclear Regulatory Commission March 22, 1984 Page Five would render its regulations meaningless, and sent a signal to the industry which discourages self-critical studies and vol-untary co-operation with the Commission.

Accordingly, pursuant to 10 C.F.R. S2. 790 (b) (5) GE respect-fully requests that the Commission return the Reed Report and the related Sub-Task Reports to the undersigned as soon as possible.

In addition, sider GE respectfully requests that the Commission recon-its October, 1980 split vote, and afford GE the opportu-nity to appear before the Commission and be heard orally on the matter of reconsideration.

Respectfully submitted,

~ W Geor . Edgar [ -

Attorney for General Electric Co.

Enclosure cc:

All on attached Service List d

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.a SEPARATE VIEWS OF COMMISSIONER HENDRIE, CONCURRING IN PART AND DISSENTING IN PART I am advised by the Office of the General Counsel that the Commission may not return the General Electric Nuclear Reactor Study, known as the Reed Report, to GE during the pendency of Freedom of Information Act claims for the Report. In that aspect of the October 9 order, I concur. However, I strongly disagree with the split Commission decision te disclose the Reed Report.

NRC acquired the Reed Report through GE's voluntary cooperation on the written understanding that the confidentiality and priv-ileged nature of the document would be respected by the Commis-sion. Under these circumstances it is patently unfair to treat the document as an agency record and release it. The Commission's split decision to release the Reed Report welches on its assurances to GE, signals the industry to be much more circumspect in its dealings with NRC, and will hamper the Commission in the future in obtaining important information promptly from vendors and licensees. In short, not only is the Commission's decision to release the Reed Report a breach of its word; it is also dismal regulatory policy.

For this we can thank not only the Commissioners who have voted for release but the Department of Justice as well. Urged by one of its members the Commission decided to solicit the Deoart-ment's advice on whether the Reed Report was an agency record for purposes of the Freedom of Information Act. The Department advised that it was an agency record and that the Department would refuse to defend in court the contrary position. It is well to recall at

J this point that the Reed Report is a product improvement study intended by GE to study the marketing and economic aspects of the availability and performance of GE's boiling water reactors. NRC had no involvement in the creation or core planning and execution of the document, and it was created without regard to any NRC regulatory program. When it was completed in 1975 GE reviewed the Report to determine whether it contained any safety-related information reportable to the NRC under Section 206 of the Energy Reorganization Act. GE concluded that it did not since NRC was aware of all safety issues mentioned in the Report, but neverthe-less reported the results of its review to the NRC Chairman. The NRC senior staff thereupon reviewed the Reed Report in GE offices in 1976, concluded that the focus of the Report was marketing rather than safety, and that the NRC did not need a copy of the Report for its work. The matter was thoroughly explored by Congress 4-1/2 years ago. See Hearings on " Investigation of Charges Related to Nuclear Reactor Safety," before the Joint Committee on Atomic Energy, 94th Cong., 2d Sess., Vol. 1 (Feb.-March 1976).

As I noted at the outset a Commission Licensing Board later obtained the Reed Report in confidence from GE during administra-tive hearings on the licensing of the Black Fox nuclear power plant.

An appropriate protective order, recognizing that confidence, was entered into. Given these facts the Department's position that the report is an NRC record seems to me wholly misguided. .The Department's advice revealed a fundamental misunderstanding of the facts and a patent lack of deference due the views of this agency on the importance to its regulatory charter of promptly obtaining I ,

e . . .

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.t information that might have a bearing on nuclear safety issues.

The NRC regulatory program has always relied on voluntary industry cooperation, especially in providing access to information that might otherwise not have been required to be submitted to the NRC.

Disclosure of such information, provided in confidence to assist the NRC, will undermine that important aspect of the agency program.

Groups, such as GE, will be less likely to produce such documents for NRC's use, and the Commission will become mired in subooena enforcement proceedings to procure the information it wants. Even if NRC were to prevail in such proceedings, the cost to che agency in time, resources, and lack of prompt information would be high.

For these reasons I believe that disclosure of the Reed Report is a grave mistake. This should be an object lesson for those who would deal with NRC with any sense of trust. From this turn of events, I must strongly dissent.

-y- - p y- me 9 - w ay

' 'NEWMAN & HOLTZINGER. P. C.

COCKETE:

. 'y CERTIFICATE OF SERVICE

'84 MR 22 A10:43 I hereby certify that the foregoing letter was sent by

i. F ; . '. i S r c .

first-class mail, postage prepaid, on March 22, 198490%oilthe SEP.

following: enANCH Francis Hulin, Esquire Assitant United States Attorney Federal Building Danville, Illinois 61832 Mark Chopko, Esquire Office of the General Counsel Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555 Leo Slaggie, Esquire Solicitors Office Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555 Susan McGrath, Esquire Kuknyo & McGrath 44 East Main Street 503 Lincoln Building Champaign, Illinois 61820 Attorney General Department of Justice 10th & Constitution Avenue, N.W.

Washington, D.C. 20530 , -

George Golomb, Esquire Department of Justice Civil Division Room 3343 -

10th & Pennsylvania Avenue, N.W. .

Washington, D.C. 20530 George gar F Attorney @for General Electric Co.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TkiE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF )

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PUBLIC SERVICE COMPANY OF ) Docket lios.

. OKLAHOMA and ) STN 50-556 WESTERN FARMERS ELECTRIC ) STN 50-557 COOPERATIVE, INC. )

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(Black Fox Station, )

Units 1 and 2) ) .

CERTIFICATE OF SERVICE I hereby certify that service of the attached letter of March 22, 1984, addressed to each Commissioner of the Nuclear Reg-ulatory Commission, has on this day been effected by first class mail, postage prepaid, on the following:

Sheldon J. Wolfe, Esquire L. Dow Davis, Esquire Atomic Safety and Licensing William D. Paton, Esquire Board Panel Colleen Woodhead, Esquire U. S. Nuclear Regulatory Counsel for NRC Staff Commission U. S. Nuclear Regulatory Washington, D. C. 20555 Commission Washington, D. C. 20555 Mr. Frederick J. Shon, Member Atomic Safety and Licensing .Mr. Clyde Wisner Board Panel HRC Region 4 U. S. Nuclear Regulatory Public Affairs Officer Com=ission 611 Ryan Plaza Drive, Suite 1000 Washington, D. C. 20555 Arlington, Texas 76011 Dr. Paul W. Purdom Joseph R. Farris, Esquire Director, Environmental Studies Robert Franden, Esquire Group Green, Feldman, Hall & Woodard Drexel University 816 Enterprise Building 32nd and Chestnut Streets Tulsa, Oklahoma 74103 Philadelphia, Pennsylvania 19104 Andrew T. Dalton, Esquire Joseph Gallo, Esq. 1437 South Main Street, Suite 302 Isham, Lincoln & Beale Tulsa, Oklahoma 74119 1050 - 17th Street, N.W.

Washington, D. C. 20036 i

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' , Mrs. Ilene H. Younghein Mr. Vaughn L. Conrad 3800 Cashion Place Public Service Company of Oklahoma City, Oklahoma 73112 Oklahoma Post Office Box 201 Atomic Safety and Licensing Tulsa, Oklahoma 74102 Appeal Board Panel U. S. Nuclear Regulatory Commission Mr'. T. N. Ewing Acting Director i

Washington, D. C. 20555 Black Fox Station Nuclear Project Atomic Safety and Licensing Public Service Company Board Panel of Oklahoma U. S. Nuclear Regulatory Post Office Box 201 Commission Tulsa, Oklahoma 74102 Washington, D. C. 20555 Dacketing and Service Section Mrs. Carrie Dickerson Office of the Secretary of Citizens Action for Safe Energy, Inc.

the Commission Post Office Box 924 U. S. Nuclear Regulatory Claremore, Oklahoma 74107 Commission Washington, D. C. 20555 Mr. Maynard Human (3 copies) General Manager Mr. Lawrence Burrell Western Farmers Electric Cooperative Route 1, lex 197 Fairview, Oklahoma 73737 Post Office Box 429 Andarko, Oklahoma 73005 Mr. Gerald F. Diddle Dr. M. J. Robinson General Manager Black & Vearch Associated Electric Post Office Box 8405 Cooperative, Inc. Kansas City, Missouri Post Office Box 754 64114 Springfield, Missouri 65801 Martha E. Gibbs, Esq.

Jan Eric Cartwright Michael 1. Miller, Esq.

Attorney General of Oklahoma Isham, Lincoln & Bea'le Greg Thomas One 1,st National Plaza Assistant Attorney General

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Suite 2400 Chicago, Illinois 60606 Charles S. Rogers Assistant Attorney General Mr. Gregory Minor State of Oklahoma MHB Technical Associates State Capitol 1723 Hamilton Avenue, Suite K Oklahoma City, Oklahoma 73105 San Jose, California 95125

'G' 4Y e orge L. Edgdr 41g h $

Dated: March 22, 1984 Special Counsel for F l The General Electric Company &

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