ML070120327

LB Order (Protective Order Governing Non-Disclosure of Certain Documents Claimed to Be Proprietary)

ML070120327
Person / Time
Site:	Vermont Yankee
Issue date:	01/12/2007
From:	Karlin A Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
06-849-03-LR, 50-271-LR, RAS 12853
Download: ML070120327 (14)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RAS 12853 DOCKETED 01/12/07 ATOMIC SAFETY AND LICENSING BOARD SERVED 01/12/07 Before Administrative Judges:

Alex S. Karlin, Chairman Dr. Richard E. Wardwell Dr. Thomas S. Elleman In the Matter of Docket No. 50-271-LR ENTERGY NUCLEAR VERMONT YANKEE, L.L.C., ASLBP No. 06-849-03-LR and ENTERGY NUCLEAR OPERATIONS, INC. January 12, 2007 (Vermont Yankee Nuclear Power Station)

ORDER (Protective Order Governing Non-Disclosure of Certain Documents Claimed to be Proprietary)

This protective order governs the disclosure and use in this proceeding of certain documents that applicants Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (collectively, Entergy) claim contain proprietary trade secrets and commercial and financial information of Entergy or its vendors and contractors.1 Pursuant to this protective order, counsel, witnesses, employees, consultants, and others representing the Department of Public Service of the State of Vermont, the New England Coalition (NEC), the State of New 1

The provisions of this protective order do not restrict use by NRC counsel, witnesses, employees, consultants and others representing the NRC Staff of documents containing protected material that the NRC is entitled to receive apart from its role as a litigant in this proceeding (e.g., documents containing information required to be submitted to the NRC by statute, regulation, or license condition or information submitted to, or acquired by the NRC in support of a requested licensing action or in fulfillment of its regulatory responsibilities). Rather, NRCs use of such documents is governed by 10 C.F.R. §§ 2.390, 2.709, 9.17, and 9.25. The provisions of this protective order apply to NRC counsel, witnesses, employees, consultants, and others representing the NRC Staff with respect to documents containing protected material that NRC receives solely pursuant to 10 C.F.R. § 2.336 and this protective order.

2 Hampshire, and the NRC 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 admitted 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 November 17, 2006, the Board issued its Initial Scheduling Order, in which it directed the parties to confer with one another on or before December 8, 2006, for the purpose of discussing and developing a joint proposed protective order and non-disclosure agreement dealing with the handling (and redaction) of documents that are claimed to contain privileged, proprietary or otherwise protected information.2 The parties did confer and developed a unanimously agreed proposed protective order and non-disclosure agreement, which they jointly submitted to the Board on December 7, 2006.3 The proposal by the parties relates only to those documents for which Entergy claims a privilege based on the assertion that the documents contain proprietary trade secrets and commercial or financial information. Certain attorney-client and attorney work-product privilege issues were handled amicably earlier.4 However, the current proposal leaves unresolved 2

Licensing Board Order (Initial Scheduling Order) (Nov. 17, 2006) at 5 [Initial Scheduling Order].

3 Joint Submittal of Proposed Protective Order and Confidentiality Agreement Regarding Proprietary Documents (Dec. 7, 2006).

4 The Board previously granted a joint motion which exempted parties from listing certain documents for which the attorney-client or attorney work-product privilege are claimed in their privilege logs. Joint Motion on Privilege Log and Disclosure (Oct. 20, 2006), granted Oct.

20, 2006.

3 several other types of privilege claims (e.g., proprietary claims by other parties and privilege claims based on other types of privileges such as the deliberative process privilege), even though such issues have been the subject of some dispute in a related proceeding.5 Even though the parties proposal is somewhat limited, the Board finds it very useful and is adopting it, with some modifications. However, the parties should be aware that, absent some other procedures blessed by this Board, all other claims of privilege and challenges thereto will be handled in accordance with the Part 2 regulations.6 II. Terms and Conditions of Protective Order After due consideration of the proposed protective order and non-disclosure agreement, the public interest in an open and public hearing, and the practical and efficient conduct of this proceeding, the Board issues the following protective order:

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 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. 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 5

For decisions regarding motions to compel production of documents in a case involving deliberative process privilege claims, see Entergy Nuclear Vermont Yankee, L.L.C.,

and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-05-33, 62 NRC 828 (2005); Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-3, 63 NRC 85 (2006).

6 Examples of these generally applicable rules include 10 C.F.R. § 2.336 (requiring that privilege logs contain sufficient information for assessing the claim of privilege), 10 C.F.R. § 2.323(a) (requiring motions to be filed within 10 days of the occurrence from which the motion arises), and 10 C.F.R. § 2.323(b) (requiring that motions include a certification that the movant made a sincere effort to contact the other party and to resolve the issue before filing the motion).

4 label, (b) list each Proprietary Document on a proprietary privilege log placed in the public files of this proceeding, and (c) within thirty (30) days of the date of this order, disclose and produce an unredacted copy of the Proprietary Document to the appropriate party. The privilege log shall provide sufficient information for assessing the claim that the document or relevant portion of the document is entitled to be treated as proprietary.

2. Proprietary Documents duly listed on the privilege log 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).

3. Entergy shall provide an unredacted copy of each Proprietary Document to the duly authorized representatives of the intervenors, the Staff, and the State of New Hampshire, if they have signed the non-disclosure agreement attached hereto. Such parties and representative shall hold such documents in confidence and in compliance with the terms and conditions of this order.7

4. If an intervenor, the Staff, or the State of New Hampshire declines to sign the non-disclosure agreement and requests a redacted version of the Proprietary Document, then Entergy shall, within twenty (20) days of the request, provide the requestor a properly redacted version of the Proprietary Document.

5. The Board will resolve any disputes arising under this protective order. Prior to presenting any such dispute to the Board, the parties shall consult and use their best efforts to resolve it. Any party that objects to the designation of a document as proprietary or to the extent of its redaction, shall provide Entergy with a written notice of objection. Except for good 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.

5 cause shown, notice of objection to the designation of the document as proprietary must be delivered to Entergy within thirty (30) days of the date that Entergy provided the Proprietary Document to the party. If the party has declined to sign the non-disclosure agreement, objections to the proprietary designation must be delivered to Entergy within thirty (30) days of the date Entergy listed the document on the privilege log, and objections to the extent of redaction must be delivered within thirty (30) days of receipt of the redacted version. The thirty day period is deemed the Consultation Period. Prior to the end of the Consultation Period, the parties may obtain an automatic thirty (30) day extension by filing a joint certification that they have been and continue to be engaged in good faith efforts to resolve the matter. Further extensions may only be granted by affirmative action of the Board. These time limits do not apply to the January 16, 2006, deadline for filing objections to initial disclosures and updates mentioned in the Initial Scheduling Order. See Initial Scheduling Order at 5-6. For matters related to these disclosures, the deadlines contained in the Initial Scheduling Order remain in effect.

6. The protections of this protective order shall automatically cease to apply to a Proprietary Document ten (10) days after the Consultation Period (and any extension) expires, unless, within that ten (10) days, Entergy files a motion with the Board, with a supporting affidavit, demonstrating and specifying those portions of the document that should be protected.

Entergy 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).

7. If Entergy has filed a motion under the preceding paragraph then, 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

6 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.

8. Only individual counsel, consultants, witnesses, employees, and others representing the intervenors, the State of New Hampshire, or the Staff who have executed the attached non-disclosure agreement, and the Board and its staff, may have access to Proprietary Documents.8 Proprietary 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 (a) the Board and its staff, and (b) those representatives of the parties engaged in the conduct of this proceeding who have executed the 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.

9. Counsel, consultants, witnesses, employees, and others representing a party who receive documents subject to the terms of this protective order shall maintain the confidentiality 8

Alternatively, Entergy may make the documents it identified as proprietary in its privilege log available to NRC counsel, witnesses, employees, consultants and others representing the NRC Staff for inspection at the offices of Entergys counsel in lieu of such NRC representatives signing the non-disclosure agreement. In that event access would not include making copies unless the Staff personnel signed the non-disclosure agreement.

Likewise, Entergy may make proprietary documents available for review at the Vermont Yankee plant to representatives of New Hampshire, should New Hampshire decline to sign the non-disclosure agreement. In that event access would not include making copies unless the New Hampshire personnel signed the non-disclosure agreement.

7 of the information contained therein as required in the attached non-disclosure agreement, the terms of which are incorporated herein.

10. 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.

11. 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.9

12. 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; 9

The submission of this affidavit does not reopen the opportunity, specified in paragraph 5 above, for a party to challenge the designation of a document as a Proprietary Document, except to the extent that a party can demonstrate by motion that new information contained in the section 2.390(b) affidavit shows that proprietary protection should not be afforded to the document.

8

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, and, in the subject line of the electronic filing e-mail, a statement that the electronic filing contains proprietary 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.

e. Be accompanied by a version of the pleading, testimony, exhibit and/or correspondence with the proprietary information redacted if, and to the extent that, the party filing the pleading, testimony, exhibit and/or correspondence in good faith determines that such a redacted version can be prepared without undue burden or expense.

13. 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. It shall be the duty of the party whose statement or testimony contains the proprietary information to be presented, to notify the Board and the parties that such testimony or statement will contain proprietary information, prior to the testimony or statement being made.

14. Proprietary Documents shall remain available until the date that an order

9 terminating this proceeding is no longer subject to judicial review. The parties shall, within fifteen (15) days of the 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 and notes taken by persons reviewing proprietary material, 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, exhibits, or notes 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, exhibits, and notes are not returned or destroyed, they shall remain subject to the provisions of this protective order.

15. 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.

16. Any violation of the terms of this protective order or a 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.

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

18. Nothing in this protective order shall be deemed to preclude any party from

10 independently seeking, through discovery in any other administrative or judicial proceeding, any Proprietary Document or information produced in this proceeding under this protective order. In addition, if documents identified in this proceeding as proprietary or some or all of the information contained in such documents, comes into the possession of or is known by any party independently of the proprietary document produced in this proceeding, use of that document or information in this proceeding, without compliance with the terms of this protective order, shall not be a violation of the terms of this protective order. The party asserting independent knowledge of the contents of proprietary documents or independent access to such documents, shall have the burden of proving that such information was independently obtained in the event that Entergy asserts that disclosure of such information or document was a violation of this Order.

19. 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 BOARD10

/RA/

Alex S. Karlin, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland January 12, 2007 10 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; (3) the Staff and (4) the State of New Hampshire.

ATTACHMENT A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of Docket No. 50-271-LR ENTERGY NUCLEAR VERMONT YANKEE, L.L.C., ASLBP No. 06-849-03-LR and ENTERGY NUCLEAR OPERATIONS, INC.

(Vermont Yankee Nuclear Power Station)

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 protective order, dated January 12, 2007, 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 summarizing or otherwise describing their contents, or any form of information that derives from the Proprietary Documents and 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.

2 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: _________________________________________________________________

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

)

ENTERGY NUCLEAR VERMONT YANKEE, LLC, )

)

and )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-271-LR

)

(Vermont Yankee Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (PROTECTIVE ORDER GOVERNING NON-DISCLOSURE OF CERTAIN DOCUMENTS CLAIMED TO BE PROPRIETARY) 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 Richard E. Wardwell Thomas S. Elleman Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 5207 Creedmoor Rd., #101 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 Mitzi A. Young, Esq. Ronald A. Shems, Esq.

Steven C. Hamrick, Esq. Karen Tyler, Esq.

David E. Roth, Esq. Shems Dunkiel Kassel & Saunders, PLLC Office of the General Counsel 91 College Street Mail Stop - O-15 D21 Burlington, VT 05401 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

2 Docket No. 50-271-LR LB ORDER (PROTECTIVE ORDER GOVERNING NON-DISCLOSURE OF CERTAIN DOCUMENTS CLAIMED TO BE PROPRIETARY)

Sarah Hofmann, Esq. Anthony Z. Roisman, Esq.

Director for Public Advocacy National Legal Scholars Law Firm Department of Public Service 84 East Thetford Rd.

112 State Street - Drawer 20 Lyme, NH 03768 Montpelier, VT 05620-2601 Matthew Brock, Esq. Diane Curran, Esq.

Assistant Attorney General Harmon, Curran, Spielberg, Office of the Massachusetts Attorney General & Eisenberg, L.L.P.

Environmental Protection Division 1726 M Street, NW, Suite 600 One Ashburton Place, Room 1813 Washington, DC 20036 Boston, MA 02108-1598 Callie B. Newton, Chair Dan MacArthur, Director Gail MacArthur Town of Marlboro Lucy Gratwick Emergency Management Town of Marlboro P.O. Box 30 SelectBoard Marlboro, VT 05344 P.O. Box 518 Marlboro, VT 05344 David R. Lewis, Esq. Jennifer J. Patterson, Esq.

Matias F. Travieso-Diaz, Esq. Office of the New Hampshire Pillsbury Winthrop Shaw Pittman LLP Attorney General 2300 N Street, NW 33 Capitol Street Washington, DC 20037-1128 Concord, NH 03301

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission Dated at Rockville, Maryland, this 12th day of January 2007