ML061520370

LB Order (Approving Protective Order and Convening Status Conference)

ML061520370
Person / Time
Site:	Davis Besse
Issue date:	06/01/2006
From:	Mike Farrar Atomic Safety and Licensing Board Panel
To:
Giitter, R L
References
06-845-01-EA, IA-05-052, RAS 11702
Download: ML061520370 (12)

Text

UNITED STATES OF AMERICA RAS 11702 NUCLEAR REGULATORY COMMISSION DOCKETED 06/01/06 ATOMIC SAFETY AND LICENSING BOARD SERVED 06/01/06 Before Administrative Judges:

Michael C. Farrar, Chairman E. Roy Hawkens Nicholas G. Trikouros In the Matter of Docket No. IA-05-052 DAVID GEISEN ASLBP No. 06-845-01-EA June 1, 2006 ORDER (Approving Protective Order and Convening Status Conference)

On May 19, 2006, we issued LBP-06-13, a Memorandum and Order denying the Governments request to delay this proceeding pending the outcome of a related criminal case.

Our decision re-activated a document production obligation of the NRC Staff (see slip op. at 41). In response to our inquiry on that matter (id.), the NRC Staff indicated in a May 25 letter that it could supply those documentary materials in less than the usual 30 days, and in fact could do so by June 5, 2006, subject to completing certain negotiations with opposing counsel and to the entry of an appropriate protective order.1 In that regard, some of the documentation that the NRC Staff is preparing to turn over contains proprietary materials that are to be protected from public disclosure. To that end, the parties have developed, and the Staff yesterday forwarded, a proposed Protective Order for recipients of such materials to sign, promising to guard against their disclosure. Given the parties agreement on the form of such order, and finding that form suitable for the assigned purpose, we hereby APPROVE the proposed protective order (and the attached sample form of Non-Disclosure Declaration) and append a copy thereof, signed by the Boards Chairman and dated this date, to this Order.

1 In a May 31, 2006 Petition asking the Commission to delay this matter, the Staff indicated (p. 9, n. 5) the June 5 document production would nonetheless proceed as promised.

Given this development, as well as the developments at a May 24 status conference call in the related criminal case and the pending negotiations regarding a joint discovery schedule (see May 25 Staff letter), it would appear timely for us to conduct, shortly after the June 5 document production, a brief status teleconference to discuss various scheduling matters. To that end, please TAKE NOTICE that a conference call will be held on Thursday, June 8, 2006, beginning at 10:00 AM EDT and continuing for no more than 30 minutes.

Counsel should notify Karen Valloch of the Licensing Board Panels administrative staff at 301-415-7405 (e-mail: ksv@nrc.gov) of their availability to participate in the call at the scheduled time. If unavailable for the call at that time, each counsel should advise as to the times that afternoon he/she would be available.

To connect to the June 8 call, counsel should dial 1-800-638-8081 and enter the pass code you will have earlier been given by Ms. Valloch. When you contact her, please advise as to the number of separate locations from which you and any colleagues or associates will be calling, so that she may reserve an appropriate number of phone lines.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

By Michael C. Farrar, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland June 1, 2006 Copies of this Order were sent this date by e-mail transmission to counsel for Mr. Geisen and for the NRC Staff.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Michael Farrar E. Roy Hawkens Nicholas G. Trikouros In the Matter of Docket No. IA-05-052 DAVID GEISEN ASLBP No. 06-845-01-EA MEMORANDUM AND ORDER (Protective Order Governing Disclosure of Proprietary Materials)

Upon consideration of the joint motion of the Staff of the Nuclear Regulatory Commission (Staff) and counsel for Mr. David Geisen for approval of a proposed Protective Order to govern the use and dissemination of proprietary materials in this proceeding, we grant the motion and adopt a Protective Order, the terms of which are as follows:

A. This Protective Order shall govern the use of all proprietary materials produced by the Staff. Notwithstanding any order to terminate this proceeding, this Protective Order shall remain in effect until specifically modified by the Atomic Licensing and Safety Board or the Commission.

B. Definitions-For purposes of this Protective Order:

1. The term party shall mean Mr. Geisen, his counsel, and other individuals assisting Mr. Geisen in the challenge to the NRC enforcement order applicable to Mr. Geisen. The term does not include the Staff. The terms of this Protective Order, unless expressly stated, do not apply to NRC employees, contractors, or consultants. Disclosure of proprietary material by the Staff, including staff counsel, is governed by 10 C.F.R. §§ 2.390, 2.709, 9.17, 9.25.

2. The term materials means any audio tape or video tape recording or

written matter of any kind, whether produced, reproduced, or stored on paper, cards, tapes, ribbons, disks, belts, charts, film, computer files, computer disks or diskettes, computer storage devices, or any other medium, and includes without limitation, books, reports, studies, statements, speeches, notebooks, calendars, working papers, manuals, memoranda, notes, instructions, directions, records, correspondence, diaries, diagrams, drawings, lists, telephone logs, minutes, and photographs, and also includes, without limitation, originals, copies (with or without notes or changes thereon), and drafts.

3. The term proprietary materials means:

a. documents submitted to the Staff pursuant to subpoena or otherwise, and for which proprietary treatment has been sought pursuant to 10 C.F.R. § 2.390;

b. any information contained in or obtained from such designated proprietary materials;

c. any other materials that are made subject to this Protective Order by the Licensing Board, by the Commission, by any court or any other body having appropriate authority, or by agreement of the parties;

d. notes of proprietary materials;

e. copies of proprietary materials.

4. The term proprietary material does not include:

a. any information or documents contained in the files of the Commission, or any other federal or state agency, or any federal or state court, unless the information or document has been determined proprietary by such agency or court; or

b. information that is public knowledge, or which becomes public knowledge other than through disclosure in violation of this Protective Order.

5. The term notes of proprietary materials means memoranda, handwritten notes, or any other form of information (including electronic form) that copies or discloses

proprietary materials described in paragraph B.3 above. Notes of proprietary materials are subject to the same restrictions provided in this Protective Order for proprietary materials except as specifically provided in this Protective Order.

6. The term Non-Disclosure Declaration shall mean the Declaration, as attached to this Protective Order, by which any person who has been granted access to proprietary materials shall certify his or her understanding that such access to proprietary materials is provided pursuant to the terms and restrictions of this Protective Order, and that such person has read the Protective Order and agrees to be bound by it. All Non-Disclosure Declarations shall be served on counsel for the Staff, as provided on the official service list for this proceeding.

7. The term reviewing individuals shall mean a person who has signed a Non-Disclosure Declaration and who is:

a. Mr. Geisen;

b. counsel for Mr. Geisen;

c. assisting Mr. Geisen in the challenge of the NRC enforcement order applicable to Mr. Geisen;

c. a person designated as a reviewing representative by order of the Licensing Board or the Commission; or

e. a court reporter engaged for depositions or record proceedings.

C. Proprietary materials shall be made available under the terms of this Protective Order only to Mr. Geisen, counsel for Mr. Geisen, and individuals assisting Mr. Geisen in the challenge of the NRC enforcement order applicable to Mr. Geisen. The Staff shall produce proprietary information separately from non-proprietary information and shall mark proprietary materials with a cover letter.

D. Proprietary materials shall remain available to Mr. Geisen, his counsel, and

individuals assisting Mr. Geisen in the challenge of the NRC enforcement order applicable to Mr. Geisen 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 related to the proprietary material is concluded and no longer subject to judicial review. Mr. Geisen, his counsel, and individuals assisting Mr. Geisen in the challenge of the NRC enforcement order applicable to Mr. Geisen shall, within fifteen (15) days of the later date described above, return the produced proprietary materials to the NRC staff, or shall destroy the proprietary materials, except that copies of filings, official transcripts and exhibits in this proceeding that contain proprietary materials, and notes of proprietary materials may be retained, if they are maintained in accordance with paragraph F below. Within such time period, Mr. Geisen, his counsel, and individuals assisting Mr. Geisen in the challenge of the NRC enforcement order applicable to Mr. Geisen shall submit to the Staff an affidavit stating that, to the best of their knowledge, all proprietary materials and all notes of proprietary materials have been returned or have been destroyed or will be maintained in accordance with paragraph F below. To the extent proprietary materials are not destroyed, they shall remain subject to this Protective Order.

E. Mr. Geisen, his counsel, and individuals assisting Mr. Geisen in the challenge of the NRC enforcement order applicable to Mr. Geisen shall maintain all proprietary materials in a secure place. Access to those materials shall be limited to those reviewing representatives specifically authorized pursuant to paragraphs G-J below.

F. Proprietary materials shall be treated as confidential in accordance with the Non-Disclosure Declaration executed pursuant to paragraph I below. Proprietary materials shall not be used except as necessary for the conduct of this proceeding, nor shall they be disclosed in any manner to any person except a reviewing representative who is engaged in the conduct of this proceeding and who needs to know the information in order to carry out that persons responsibilities in this proceeding. Reviewing representatives may make copies of proprietary

materials, but such copies become proprietary materials. Reviewing representatives may make notes of proprietary materials, which shall be treated as notes of proprietary materials if they disclose the contents of proprietary materials.

G. Reviewing representatives may not use information contained in proprietary material to obtain a commercial advantage.

H. If Mr. Geisen or his counsel wish to designate as a reviewing representative a person not described in paragraph B.7 above, they shall seek the agreement of the Staff. If an agreement is reached, that person shall be a reviewing representative pursuant to paragraph B.7 above with respect to those materials. If no agreement is reached, the dispute shall be submitted to the Licensing Board for resolution.

I. A reviewing representative shall not be permitted to inspect, participate in discussions regarding, or otherwise be permitted access to proprietary materials pursuant to this Protective Order unless that reviewing representative has first executed a Non-Disclosure Declaration. A copy of each executed Non-Disclosure Declaration shall be provided to the Staff prior to disclosure of any proprietary material to that reviewing representative.

J. Attorneys qualified as reviewing representatives are responsible for ensuring that persons under their supervision or control comply with this Protective Order.

K. Any reviewing representative may disclose proprietary materials to any other reviewing representative as long as the disclosing reviewing representative and the receiving representative have both executed the Non-Disclosure Declaration. If any reviewing representative to whom the proprietary materials are disclosed ceases to be engaged in these proceedings, or employed or retained for a position whose occupant is not qualified to be a reviewing representative under paragraph B.7 above, access to proprietary materials by that person shall be terminated. Even if no longer engaged in this proceeding, every person who has executed a Non-Disclosure Declaration shall continue to be bound by the provisions of this

Protective Order and the Declaration.

L. Subject to paragraph S below, the Licensing Board shall resolve any disputes arising under this Protective Order. Prior to presenting any dispute under this Protective Order to the Licensing Board, counsel for the Staff and counsel for Mr. Geisen shall use their best efforts to resolve the dispute.

M. All copies of documents reflecting proprietary materials that are filed in this proceeding, including the protection of hearing testimony, the portion of exhibits, the portion of transcripts, the portion of pleadings, and the portion of documents that refer to proprietary materials shall be filed and served in sealed envelopes or other appropriate containers endorsed to the effect that they are sealed pursuant to this Protective Order. Such documents shall be marked PROPRIETARY MATERIALS and shall be served only on the Licensing Board, NRCs Office of the Secretary, and persons authorized to receive proprietary materials under this Protective Order.

N. If Mr. Geisen or his counsel desires to include, utilize, or refer to proprietary information or information derived therefrom in a pleading, brief, testimony, exhibit, or other filing in this proceeding in such a manner that might require disclosure of such materials to persons other than the reviewing representatives, counsel for Mr. Geisen shall notify the Staff and the Licensing Board of such a desire, identifying with particularity each of the proprietary materials. Thereafter, such proprietary materials will be governed by procedures determined by the Licensing Board.

O. Nothing in this Protective Order shall be construed as precluding objections to the use of proprietary materials on any legal grounds.

P. Nothing in this Protective Order shall preclude a request that the Licensing Board, the Commission, or any other body having proper authority, find that this Protective Order should not apply to any or all materials previously designated as proprietary materials

pursuant to this Protective Order. The Licensing Board may alter or amend this Protective Order as circumstances warrant at any time during the course of this proceeding.

Q. The parties to this Protective Order may seek changes in it as appropriate from the Licensing Board or the Commission.

R. Nothing in this Protective Order prevents a request for public disclosure of information designated as proprietary materials, in accordance with NRC procedures.

S. If the Licensing Board finds at any time in the course of this proceeding that all or part of the proprietary materials need not be proprietary, those materials shall, nevertheless, be subject to the protection afforded by this Protective Order for ten (10) days from the date of issuance of the Licensing Boards decision, and if there is an interlocutory appeal or request that the issue be certified to the Commission, for an additional ten (10) days. The right to seek additional administrative or judicial remedies after the Licensing Boards decision respecting proprietary materials or reviewing representatives, or the Commissions denial of any appeal is not waived.

T. Nothing in this Protective Order shall be deemed to preclude a party from independently seeking through discovery in any other administrative or judicial proceeding information or materials produced in this proceeding under this Protective Order.

U. The right to pursue any other legal or equitable remedies that may be available in the event of actual or anticipated disclosure of proprietary materials is not waived by this Protective Order.

V. Proprietary materials or any other form of information that copies or discloses proprietary materials shall not be disclosed to anyone other than in accordance with this Protective Order and shall be used only in connection with this proceeding. Any violation of this Protective Order and any Non-Disclosure Declaration executed hereunder shall constitute a violation of an order of the Commission. Any violation of this Protective Order may result in the

imposition of sanctions as the Licensing Board or the Commission may deem appropriate, including, but not limited to, referral of the violation to appropriate bar associations and other disciplinary authorities.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

By Michael C. Farrar, Chairman ADMINISTRATIVE JUDGE June 1, 2006

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

DAVID GEISEN ) Docket No. IA-05-052

)

) ASLBP No. 06-845-01-EA

)

NON-DISCLOSURE DECLARATION Under penalty of perjury, I hereby certify my understanding that (1) access to proprietary materials is provided to me pursuant to the terms and restrictions of the Atomic Licensing and Safety Boards June 1, 2006 Protective Order in this proceeding; (2) I have been given a copy of and have read the Protective Order; and (3) I agree to be bound by it. I understand that the contents of the proprietary materials, any notes or other memoranda, or any other form of information that copies or discloses proprietary materials shall not be disclosed to anyone other than in accordance with that Protective Order. I acknowledge that a violation of this Declaration or the Protective Order, which incorporates the terms of this Declaration, constitutes a violation of an order of the Nuclear Regulatory Commission and may result in the imposition of sanctions as the Licensing Board or the Commission may deem appropriate, including, but not limited to, referral of the violation to the appropriate bar associations and other disciplinary authorities.

WHEREFORE, I do solemnly agree to protect such proprietary information as may be disclosed to me in this NRC proceeding, in accordance with the terms of this Declaration.

Name (printed):

Title:

Representing:

Signature:

Date:

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

)

DAVID GEISEN ) Docket No. IA-05-052

)

)

(Enforcement Action) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (APPROVING PROTECTIVE ORDER AND CONVENING STATUS CONFERENCE) 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 Michael C. Farrar, 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 E. Roy Hawkens Nicholas G. Trikouros Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Bradley W. Jones, Esq. Richard A. Hibey, Esq.

Sara E. Brock, Esq. Miller & Chevalier Chtd.

Michael A. Spencer, Esq. 655 Fifteenth Street, NW, Suite 900 Office of the General Counsel Washington, DC 20005-5701 Mail Stop - O-15 D21 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 June 2006