ML050600309

LB Order (Protective Order Governing Non-Disclosure of Proprietary Information)

ML050600309
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	03/01/2005
From:	Karlin A Atomic Safety and Licensing Board Panel
To:
Byrdsong A T
References
50-271-OLA, ASLBP 04-832-02-OLA, RAS 9426
Download: ML050600309 (13)

Text

RAS 9426 DOCKETED 03/01/05 UNITED STATES OF AMERICA SERVED 03/01/05 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Alex S. Karlin, Chairman Dr. Anthony J. Baratta Lester S. Rubenstein In the Matter of Docket No. 50-271-OLA ENTERGY NUCLEAR VERMONT YANKEE L.L.C. ASLBP No. 04-832-02-OLA and ENTERGY NUCLEAR OPERATIONS, INC. March 1, 2005 (Vermont Yankee Nuclear Power Station)

ORDER (Protective Order Governing Non-Disclosure of Proprietary Information)

This protective order governs the disclosure and use in this proceeding of certain documents that applicants Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively, Entergy) claim contain proprietary trade secrets and commercial and financial information of Entergy or its vendors and contractors. Pursuant to this protective order, counsel, witnesses, employees, consultants, and others representing the Department of Public Service of the State of Vermont (State), the New England Coalition (NEC), and the NRC Staff (Staff) shall be permitted access to such documents upon the conditions set forth herein.

I. Procedural Posture Each party to this proceeding is required to disclose and provide all documents relevant to the contentions, except those documents for which a claim of privilege or protected status is being made. 10 C.F.R. § 2.336(a)(2). In the latter case, the party must list such documents on a privilege log. 10 C.F.R. § 2.336(a)(3).

On January 12, 2005, Entergy moved the Board to issue a protective order to govern access to and disclosure of certain information that it claimed to be trade secrets and confidential commercial or financial information of Entergy or its vendors and contractors.1 Entergys motion included a proposed protective order skipping any determination by the Board as to whether the documents actually qualify for the asserted privilege and enabling Entergy to disclose its allegedly privileged documents to the intervenors and Staff, subject to the terms and conditions of the proposed order. On January 18, 2005, Entergy withdrew its original motion and filed an amended motion for a protective order, stating that all parties had agreed to the modified protective order in the form attached to its amended motion.2 On January 19, 2005, the Staff filed its answer to the Entergy Motion and Entergy Amended Motion, indicating that it did not oppose the issuance of an appropriate protective order with respect to the intervenors, but arguing that the order be denied as to the Staff.3 Entergys Amended Motion was discussed at the telephone prehearing conference held by the Board and the parties on January 21, 2005, Tr. 631-658, at which time the Board raised several concerns and directed Entergy to revise and resubmit the proposed protective order. Tr. 658. On February 7, 2005, Entergy duly filed its further amended motion for protective order indicating that all parties 1

Entergys Motion for Protective Order Governing Access to and Disclosure of Trade Secrets and Confidential Commercial or Financial Information (Jan. 12, 2005) [Entergy Motion].

2 Entergys Amended Motion for Protective Order Governing Access to and Disclosure of Trade Secrets and Confidential Commercial or Financial Information (Jan. 18, 2005) [Entergy Amended Motion].

3 NRC Staff Answer to Entergys Motion for Protective Order Governing Access to and Disclosure of Trade Secrets and Confidential Commercial or Financial Information (Jan. 19, 2005) [Staff Answer].

agreed to the form of the modified protective order attached to the motion, although the Staff remains of the view, that it should not be subject to the protective order.4 II. Terms and Conditions of Protective Order After due consideration of Entergys Further Amended Motion and proposed protective order, the position of the Staff and the parties, the public interest in an open and public hearing, and the practical and efficient conduct of this proceeding, the Board grants and issues this protective order subject to the following terms and conditions.5

1. If counsel for Entergy in good faith believes that a document contains information that qualifies under 10 C.F.R. § 2.390(a)(4) and (b)(4)(i)-(v) as a trade secret and commercial or financial information of Entergy or its vendors and contractors that is privileged and confidential, then he or she may designate it as such and it shall be protected in accordance with the terms and conditions of this order.6 Such documents shall hereinafter be referred to as Proprietary Documents. Entergy shall (a) prominently mark each Proprietary Document on the first page with a conspicuous Proprietary label, (b) list each Proprietary Document on a 4

Entergys Further Amended Motion for Protective Order Governing Access to and Disclosure of Trade Secrets and Confidential Commercial or Financial Information (Feb. 7, 2005) [Entergy Further Amended Motion].

5 This protective order adopts most, but not all, of the provisions of the order proposed in Entergys Further Amended Motion.

6 Umbrella protective orders, that allow a party to obtain confidentiality protection over documents before there has been a judicial or administrative determination that the documents actually qualify for the claimed privilege and that thereby prevent unrestricted party and public access to the documents, are disfavored by a majority of jurisdictions unless the judge (1) satisfies himself that the parties know what a trade secret is and are acting in good faith in deciding which parts of the record are trade secrets and (2) makes explicit that either party and any interested member of the public can challenge the secreting of particular documents.

Citizens First Natl Bank v. Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir. 1999). See also Manual for Complex Litigation, Fourth § 11.432 n. 134, (stating, in the context of umbrella orders, [C]ounsel should not mark documents as protected under the [protective] order without a good faith belief that they are entitled to protection. . . The designation of a document as confidential should be viewed as equivalent to a motion for a protective order and subject to the sanctions of Federal Rules of Civil Procedure 37(a)(4), as provided by Rule 26(c).)

proprietary privilege log placed in the public files of this proceeding, and (c) within 30 days of the date of this order, disclose and produce the Proprietary Document to the appropriate party.

The Staff shall also have the right to obtain a copy of, or otherwise access, any such Proprietary Document.

2. Proprietary Documents shall be deemed to contain proprietary trade secrets and commercial and financial information required to be held in confidence pursuant to the policy reflected in 10 C.F.R. § 2.390(a)(4). The intervenors, and, if it chooses to access or accept Proprietary Documents, the Staff, shall hold such documents in confidence and in compliance with the terms and conditions of this order.7

3. The Board will resolve any disputes arising under this protective order. Prior to presenting any such dispute to the Board, the parties to the dispute shall consult and use their best efforts, including the use of redaction, to resolve it. Any party that objects to the designation of a document as proprietary shall notify Entergy in writing. Except for good cause shown, such written objection must be delivered to Entergy within sixty (60) days of the date that Entergy provided the Proprietary Document to the party, or no later than sixty (60) days after issuance of the final Safety Evaluation Report by the Staff, whichever is earlier.

4. The protections of this protective order shall automatically cease to apply to a Proprietary Document ten (10) days after a written objection is served on Entergy, unless, within that time period, Entergy files a motion with the Board, with a supporting affidavit, demonstrating and specifying those portions of the document that should be protected. Entergy 7

This order, and the good faith representation and designation of documents as Proprietary Documents by counsel for Entergy, serves in lieu of the requirement for marking and for an affidavit under 10 C.F.R. § 2.390(b) and allows the Staff to receive Proprietary Documents and to protect their confidentiality under FOIA. However, the Staff is not obligated to participate in this order or to obtain Proprietary Documents hereunder. The Staff may instead access the documents under the compromise position approach specified in the Staff Answer at 5, on in any other way that Entergy and the Staff agree is appropriate.

has the burden of showing that information in the Proprietary Document is a trade secret and commercial or financial information that is privileged and confidential and that, on balance, it warrants protection under 10 C.F.R. § 2.390(a)(4) and (b)(4)(i)-(v).

5. Pending a ruling by the Board, the Proprietary Documents in question shall continue to be held in confidence. If the Board rules that a document does not qualify for the asserted privilege, or that, on balance, the document should be disclosed without the restrictions of this protective order, then the unrestricted use of such documents may begin fifteen (15) days after the Boards decision. If, during such time, Entergy files an interlocutory appeal or request that the issue be certified to the Commission, such period of time shall be extended for an additional ten (10) days, during which time the Board or Commission may consider a request for any further stay.

6. Only individual counsel, consultants, witnesses, employees, and others representing the intervenors or the Staff who have executed the attached Confidentiality and Non-Disclosure Agreement may have access to Proprietary Documents. Such documents shall only be used as necessary for the conduct of this proceeding. Proprietary Documents shall not be disclosed in any manner to any person except those engaged in the conduct of this proceeding who have executed the Confidentiality and Non-Disclosure Agreement and who, in the reasonable opinion of the party who has received the Proprietary Documents, need to know the information contained in the Proprietary Documents in order to carry out their responsibilities in this proceeding. Individuals with access to Proprietary Documents may make copies of and take notes on the confidential information contained in the documents, but such copies and notes become Proprietary Documents subject to the terms of this protective order.

7. Counsel, consultants, witnesses, employees, and others representing a party who receive documents subject to the terms of this protective order shall maintain the confidentiality

of the information contained therein as required in the attached Confidentiality and Non-Disclosure Agreement, the terms of which are incorporated herein.

8. Counsel shall take all reasonable precautions necessary to assure that Proprietary Documents and the information contained therein are not distributed to unauthorized persons.

Counsel are responsible for ensuring that persons under their supervision or control comply with this protective order.

9. A party intending to file or submit any pleading, testimony, exhibit, or correspondence in this proceeding that contains a Proprietary Document or information derived from a Proprietary Document, shall notify counsel for Entergy in writing, as soon as the party is aware of the likely use of the Proprietary Document and, to the fullest extent possible, no less than ten (10) days prior to the date of the intended filing. Such notice shall identify the Proprietary Document(s) that the party intends to use or include. Unless Entergy submits an affidavit conforming to the requirements of 10 C.F.R. §§ 2.390(b)(1)(ii) and (iii) within ten (10) days after the filing of such pleading, testimony, exhibit, or correspondence, the protections of this protective order shall automatically cease to apply to the Proprietary Document.8

10. All pleadings, testimony, exhibits and correspondence in this proceeding that contain information derived from a Proprietary Document shall:

a. Be served by electronic mail (except for attachments to such pleadings which are not already in electronic format), with an additional paper copy served in a sealed envelope by United States first class, registered, express, or certified mail, internal NRC mail, messenger-courier, or overnight delivery service; 8

The submission of this affidavit does not reopen the opportunity, specified in paragraph 3 above, for a party to challenge the designation of a document as a Proprietary Document.

b. Include an attached cover sheet identifying the pleading, testimony, exhibit, or correspondence as containing a Proprietary Document or information derived therefrom, and a cover letter that describes the contents of the pleading or correspondence without reference to such information;

c. Specifically designate, by highlighting, marginalia, or other appropriate markings, the portion of the pleading, testimony, exhibit or correspondence, that contains a Proprietary Document or information derived therefrom; and

d. Be served only on the Board, the NRCs Office of the Secretary, and representatives of the Staff or appropriate party authorized to receive such information pursuant to this protective order.

11. At any hearing or conference in this proceeding in which a statement is made by the representative of a party, or a witness is questioned, concerning a Proprietary Document or information contained therein, the statement or testimony shall be given in camera or under other suitable conditions as this Board may establish, and the record of that portion of the hearing and any transcript thereof, shall be withheld from distribution to the public.

12. Proprietary Documents shall remain available to all parties until the later of the date that an order terminating this proceeding is no longer subject to judicial review, or the date that any other Commission proceeding relating to such information is concluded and no longer subject to judicial review. The parties shall, within fifteen (15) days of the later date described above, return the Proprietary Documents to counsel for Entergy or shall destroy that material, except that copies of filings, transcripts, and exhibits in this proceeding that contain such information may be retained if they are maintained in a secure place such that no distribution of the information to unauthorized individuals will occur. Within such time period, each party receiving Proprietary Documents shall submit to counsel for Entergy an affidavit stating that, to the best of its knowledge, all Proprietary Documents have been returned or destroyed, or, if

filings, transcripts, or exhibits in this proceeding, will be maintained in a secure place such that no distribution of the information to unauthorized individuals will occur. To the extent that such filings, transcripts, and exhibits are not returned or destroyed, they shall remain subject to the provisions of this protective order.

13. Counsel, consultants, employees, or any other individuals representing a party who have reason to believe that Proprietary Documents may have been lost or misplaced or may have otherwise become available to unauthorized persons during the pendency of this proceeding shall notify the Board and counsel for Entergy promptly of their concerns and the reasons for them.

14. Any violation of the terms of this protective order or a Confidentiality and Non-Disclosure Agreement executed in furtherance of this order may result in the imposition of such sanctions as the Board may deem appropriate, including but not limited to referral of the violation to appropriate bar associations and/or other disciplinary authorities.

15. Each party governed by this protective order has the right to seek changes in it as appropriate from the Board or the Commission.

16. Nothing in this protective order shall be deemed to preclude any party from independently seeking, through discovery in any other administrative or judicial proceeding, any Proprietary Document or information produced in this proceeding under this protective order.

17. The Board may alter or amend this protective order as circumstances warrant at any time during the course of this proceeding.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD9

/RA/

Alex S. Karlin, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland March 1, 2005 9

Copies of this order were sent this date by Internet e-mail transmission to counsel for (1) licensees Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc.; (2) intervenors Vermont Department of Public Service and New England Coalition of Brattleboro, Vermont; and (3) the Staff.

ATTACHMENT A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of Docket No. 50-271-OLA ENTERGY NUCLEAR VERMONT YANKEE L.L.C. ASLBP No. 04-832-02-OLA and ENTERGY NUCLEAR OPERATIONS, INC.

(Vermont Yankee Nuclear Power Station)

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT Under penalty of perjury, I hereby certify that: access to Proprietary Documents is provided to me pursuant to the terms and restrictions of the Atomic Safety and Licensing Boards (Boards) Protective Order, dated March 1, 2005, in this proceeding; that I have been given a copy and have read said protective order; and that I agree to be bound by it. I understand and agree that Proprietary Documents, their contents, or any notes or other memoranda, or any form of information that copies or discloses the contents of the Proprietary Documents, shall be held in confidence and shall not be disclosed to anyone except in accordance with that protective order. I acknowledge that a violation of this agreement or the protective order, which incorporates the terms of this agreement, constitutes a violation of an order of the Nuclear Regulatory Commission and may result in the imposition of such sanctions as the Board or the Commission may deem to be appropriate.

WHEREFORE, I do solemnly agree to protect such Proprietary Documents, and their contents, as may be disclosed to me in this NRC proceeding, in accordance with the terms of this agreement.

Name (printed): _________________________________________________________

Title:

Employed by or Representing: _____________________________________________

Signature: _____________________________________________________________

Date: _________________________________________________________________

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE L.L.C. ) Docket No. 50-271-OLA and ENTERGY NUCLEAR OPERATIONS, INC. )

)

Vermont Yankee Nuclear Power Station) )

)

(Operating License Amendment) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (PROTECTIVE ORDER GOVERNING NON-DISCLOSURE OF PROPRIETARY INFORMATION) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate Administrative Judge Adjudication Alex S. Karlin, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Administrative Judge Anthony J. Baratta Lester S. Rubenstein Atomic Safety and Licensing Board Panel 4270 E Country Villa Drive Mail Stop - T-3 F23 Tucson, AZ 85718 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Brooke D. Poole, Esq. Raymond Shadis Robert M. Weisman, Esq. New England Coalition Marisa C. Higgins, Esq. P.O. Box 98 Office of the General Counsel Edgecomb, ME 04556 Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

2 Docket No. 50-271-OLA LB ORDER (PROTECTIVE ORDER GOVERNING NON-DISCLOSURE OF PROPRIETARY INFORMATION)

John M. Fulton, Esq. Sarah Hofmann, Esq.

Assistant General Counsel Special Counsel Entergy Nuclear Operations, Inc. Department of Public Service 440 Hamilton Avenue 112 State Street - Drawer 20 White Plains, NY 10601 Montpelier, VT 05620-2601 Anthony Z. Roisman, Esq. Jay E. Silberg, Esq.

National Legal Scholars Law Firm Matias F. Travieso-Diaz, Esq.

84 East Thetford Rd. Douglas J. Rosinski, Esq.

Lyme, NH 03768 Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128 Jonathan M. Block, Esq. Jonathan M. Rund, Esq.

94 Main Street Chris Wachter P.O. Box 566 Law Clerks Putney, VT 05346-0566 Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission Dated at Rockville, Maryland, this 1st day of March 2005