ML070600767

LB Order (Protective Order and Nondisclosure Affidavit)

ML070600767
Person / Time
Site:	Oyster Creek
Issue date:	03/01/2007
From:	Hawkens E Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-219-LR, ASLBP 06-844-01-LR, RAS 13124
Download: ML070600767 (12)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RAS 13124 DOCKETED 03/01/07 ATOMIC SAFETY AND LICENSING BOARD SERVED 03/01/07 Before Administrative Judges:

E. Roy Hawkens, Chairman Dr. Paul B. Abramson Dr. Anthony J. Baratta In the Matter of Docket No. 50-0219-LR AMERGEN ENERGY COMPANY, LLC ASLBP No. 06-844-01-LR (License Renewal for Oyster Creek Nuclear March 1, 2007 Generating Station)

ORDER (Protective Order and Nondisclosure Affidavit)

This Protective Order governs the disclosure and use of proprietary information1 by the Nuclear Information and Resource Service, Jersey Shore Nuclear Watch, Inc., Grandmothers, Mothers and More for Energy Safety, New Jersey Public Interest Research Group, New Jersey Sierra Club, and New Jersey Environmental Federation - hereinafter referred to collectively as Citizens - in the above-captioned proceeding on the application of AmerGen Energy Company, LLC (AmerGen) for renewal of its operating license for the Oyster Creek Nuclear Generating Station.

This Protective Order governs only the disclosure and use of non-safeguards, commercial proprietary information that is owned or possessed by AmerGen or its parents and affiliates, and does not govern proprietary information owned by third parties and possessed by 1

Proprietary information includes any non-safeguards information that is confidential, in accordance with 5 U.S.C. § 552(b)(4) (2000) and 10 C.F.R. § 2.390(a)(4), or which reveals such confidential information. Proprietary information does not include any information or document contained in the files of the Nuclear Regulatory Commission, any other federal or state agency, or any federal or state court, unless the information or document has been determined to be protected by such agency or court.

AmerGen or its parents or affiliates (third-party proprietary information). Should Citizens seek access to any such third-party proprietary information, AmerGen shall make reasonable efforts to obtain from the owner of such information any necessary approvals for its release, subject to any appropriate nondisclosure provisions.

This Protective Order shall remain in effect until specifically modified or terminated by the Atomic Safety and Licensing Board (Licensing Board) or the Nuclear Regulatory Commission (Commission). Nothing in this Protective Order precludes Citizens, AmerGen, or the NRC Staff from seeking modifications to it by the Licensing Board or the Commission as future circumstances warrant. Those persons who are deemed qualified pursuant to this Protective Order, and who have executed the attached nondisclosure affidavit - the terms of which are hereby incorporated into this Protective Order - shall be permitted access to proprietary information under the following conditions:

A. After execution of the attached nondisclosure affidavit pursuant to Paragraph L, below, the following persons will be afforded access to proprietary information under this Protective Order for purposes of this proceeding:

Richard Webster (Counsel)

Julia Huff (Counsel)

Karen Hughes (Paralegal)

Raechelle Edwards (Filing Clerk)

Rudolf Hausler (Expert Witness)

Any additions or substitutions to this list of individuals must be made in accordance with the provisions of Paragraphs B.1 and B.2, below. The grant of access to proprietary information does not waive any partys objections to the qualifications of any proposed witness to testify concerning matters in this proceeding.

B.1. Citizens shall advise AmerGen and the Licensing Board, in writing, of the names of any additional persons not named in Paragraph A, for whom access to proprietary

information is sought. To qualify additional individuals for access to proprietary information, Citizens must certify to the Licensing Board that the named individual is:

a. An employee or member of an intervening organization;

b. Legal counsel to Citizens; or

c. Another individual whose review thereof is necessary for the preparation of materials for this proceeding and who possesses the requisite competence necessary to evaluate all or portions of the proprietary information that he or she may be shown.

The certification shall set forth Citizens rationale for why disclosure of the proprietary information to such additional designated recipient(s) is necessary, with due regard for AmerGens legitimate interest in minimizing dissemination of proprietary information. Prior to submitting such certification to the Licensing Board, Citizens shall contact AmerGen to seek agreement regarding its need for an additional designee, and the additional designees requisite competence to review and evaluate all or portions of the proprietary information. If AmerGen agrees to the additional designee, before such individual may access any proprietary information Citizens must submit a copy of the agreement to the Licensing Board - or Commission as appropriate - for approval, and the individual must execute and file the attached nondisclosure affidavit pursuant to Paragraph L, below.

If AmerGen declines to agree, Citizens certification shall state that such agreement was sought and declined.2 AmerGen may challenge the need for, or the requisite competence of, Citizens additional designated recipients within three (3) business days of receipt of Citizens filing. In the absence of agreement, the Licensing Board - or Commission as appropriate - will determine the designation of additional recipients by further order. Only after such designation by the Licensing Board or Commission, and the individuals execution of the attached nondisclosure affidavit, may 2

Cf. 10 C.F.R. § 2.323(b).

such person(s) be granted access to any proprietary information.

B.2. Citizens and AmerGen hereby stipulate that any person listed in Paragraph A may discuss with or show, to no more than one representative from each of the organizations that comprise Citizens (additional representatives), proprietary information received from AmerGen, and may transmit to such additional representatives - by facsimile3 -

draft or final pleadings that contain proprietary information, only:

a. On a need to know basis;

b. After such additional representatives execute and return to AmerGen and the Licensing Board the attached nondisclosure affidavit consistent with Paragraph L, below; and

c. After AmerGen is given three (3) business days to object consistent with Paragraph M, below, or on other reasonable grounds such as a commercial interest in the information.

In viewing or possessing the proprietary information, the additional representatives shall fully comply with all of the requirements contained in this Protective Order. Citizens are not required to submit to the Licensing Board the certification described in Paragraph B.1 for the additional representatives seeking to access the proprietary information described above. For access to proprietary information beyond the limited disclosures described above, these additional representatives must make the showing required by Paragraph B.1. In the absence of compliance with Paragraph B.1, AmerGen will not be required to provide copies of proprietary information to such additional representatives pursuant to Paragraph F, below.

C. Persons who receive any proprietary information (including transcripts of in camera hearings, filed testimony, or any other document that reveals proprietary information) shall maintain the informations confidentiality as required by the attached nondisclosure 3

All portions of such facsimiles containing proprietary information shall be deemed to be themselves proprietary information and, therefore, subject to the provisions of this Protective Order.

affidavit.

D. Persons who receive any proprietary information shall use it solely for the purpose of participation in this proceeding before the Licensing Board and participation in any future Commission or outside judicial proceedings in this case.

E. Once granted access to the proprietary information, such persons shall keep a record of all documents in their possession or control that contain or reveal proprietary information pursuant to the terms of the attached nondisclosure affidavit. At the conclusion of this proceeding and any future Commission or outside judicial proceedings in this case, all persons granted access to proprietary information shall account to AmerGen for all documents or other materials in their possession or control that contain or reveal proprietary information, and shall submit such documents to AmerGen for disposal, in accordance with the attached nondisclosure affidavit.

F. AmerGen will provide one copy of the requested proprietary information to the work address of each individual authorized to review such information, as listed in Paragraph A. A limit of one transcript per office will be provided of any proceeding conducted on the record in which proprietary information is revealed. Such proprietary information and such transcripts may only be reviewed by persons qualified to have access to proprietary information in accordance with the provisions of Paragraphs A, B.1, and B.2, and who have executed the attached nondisclosure affidavit. Citizens shall not electronically reproduce or photocopy the proprietary information provided by AmerGen, or any transcripts containing proprietary information without the agreement of counsel for AmerGen, unless such reproduction or photocopying is required to make sufficient copies to serve documents on the parties and the Licensing Board.

G. In addition to the requirements specified in the attached nondisclosure affidavit, all pleadings and filings in this proceeding (including testimony) that contain or reveal any

proprietary information shall:

1. Be segregated and served only

a. On counsel for AmerGen, the Assistant for Rulemakings and Adjudications in the Office of the Secretary,4 the NRC Staff, a representative of Citizens who has signed the attached nondisclosure affidavit, and the members of the Licensing Board and its Law Clerk;

b. By U.S. Postal Service registered, express, or certified mail; by messenger-courier or overnight delivery service (e.g., Federal Express);

or by personal delivery; and

c. In two sealed envelopes including

i. An outer mailing envelope bearing the name and address of the addressee and the statement PRIVATE. TO BE OPENED BY ADDRESSEE ONLY and ii. An inner sealed envelope with the statement CONTAINS PROPRIETARY INFORMATION. Addressees shall take all necessary precautions to ensure that they alone will open envelopes so marked. The outer envelope will contain the intended recipient's name and address, and will bear no marking or indication that the document within contains or reveals proprietary information.

2. Include an attached cover letter or memorandum that briefly describes the contents of the pleading or correspondence without reference to any proprietary information such that the cover letter or memorandum can be placed in the public docket of this proceeding.

H. Persons who have reason to suspect documents that contain or reveal proprietary information might have been lost or misplaced (e.g., because an expected paper has not been received), or that proprietary information has otherwise become available to an unauthorized person(s), shall promptly notify counsel for AmerGen of those suspicions and the reasons for them. The Licensing Board shall be notified of any unauthorized disclosure that is confirmed by AmerGen.

I. An organization that is represented by one or more of its members who sign the attached nondisclosure affidavit will be bound by and jointly liable with the affiant for any unauthorized disclosure of proprietary information.

4 The original of the pleading or correspondence containing the proprietary information (without additional copies) should be addressed to Emile L. Julian, Assistant for Rulemakings and Adjudications, Rulemakings and Adjudications Staff, Office of the Secretary.

J. Nothing in this Protective Order prevents Citizens from seeking public disclosure of information designated as proprietary information in accordance with NRC regulatory procedures.

K. Nothing in this Protective Order restricts AmerGens right to pursue any other legal or equitable remedies that may be available to it in the event of actual or anticipated disclosure of protected materials.

L. All nondisclosure affidavits shall be filed with the Licensing Board and served on AmerGen and the NRC Staff.

M. Upon receipt of a properly executed nondisclosure affidavit by an individual approved by the Licensing Board - pursuant to Paragraph B.1 - AmerGen shall have three (3) business days to object to any matter involving the execution of the nondisclosure affidavit. Absent an objection by AmerGen relating to the execution of the nondisclosure affidavit, AmerGen shall promptly transmit by overnight delivery service the proprietary information to the affiant consistent with Paragraph F.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD5

/Original Signed by/

E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland March 1, 2007 5

Copies of this Order and attached Nondisclosure Affidavit were sent this date by Internet e-mail to counsel for: (1) AmerGen; (2) Citizens; (3) the NRC Staff; and (4) New Jersey.

NONDISCLOSURE AFFIDAVIT I, _____________________________________, being duly sworn, state:

1. As used in this Nondisclosure Affidavit:

a. Proprietary information is any information which is confidential in accordance with 5 U.S.C. § 552(b)(4) (2000) and 10 C.F.R. § 2.390(a)(4),

or which reveals such confidential information.

b. Proprietary information does not include any information or document contained in the files of the United States Nuclear Regulatory Commission (Commission or NRC), any other federal or state agency, or any federal or state court, unless the information or document has been determined to be protected by such agency or court.

c. An authorized person is (i) an employee, consultant, or contractor of the NRC, (ii) a person who is duly authorized to view or possess proprietary information pursuant to Paragraph B.1 or B.2 of the March 1, 2007 Atomic Safety and Licensing Board Protective Order (Protective Order),

or (iii) a person employed by or on behalf of AmerGen, its parents or affiliates.

d. A document means any audio 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 software, 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.

2. I have read the Protective Order issued in this proceeding and will comply in all respects with its terms and conditions regarding the proprietary information produced in connection therewith. I will protect and keep confidential proprietary information in accordance with the Protective Order and the terms of this affidavit.

3. I will not disclose proprietary information to anyone except an authorized person.

I will protect documents that contain or reveal proprietary information in written or recorded form (including any portions of transcripts of in camera hearings, filed testimony, or any other documents that contain or reveal such proprietary information), so that the proprietary information contained therein remains at all times under the control of an authorized person and is not revealed to anyone else. If I provide or transmit any proprietary document to an authorized person, I will ensure that the document is properly and clearly marked CONTAINS PROPRIETARY INFORMATION before such provision or transmittal.

4. I will not transmit by electronic transmission other than facsimile any material containing proprietary information. Any transmission by the U.S. Postal Service will comply with Paragraph G of the Protective Order.

5. When not under my direct control or the direct control of another individual authorized to have access thereto, I will keep and protect all documents containing or revealing proprietary information (including, without limitation, transcripts, pleadings that I may generate, and any notes and copies that I may make) in a secure locked place such as a filing cabinet, closet, or other storage container.

6. Any secretarial or administrative work performed at my request or under my supervision will be performed by personnel who also have been qualified for such access and who also have executed a nondisclosure affidavit.

7. To the extent that I use a computer to generate or revise documents that contain or reveal proprietary information, the generated or revised documents shall only be saved to external non-networked storage devices, which device shall be stored in a locked storage container or safe, or will be retained in my direct control. When the information has been saved to disk, all temporary electronic files that are automatically generated on the hard drive must be deleted. At the earlier of (a) the conclusion of this proceeding (including any related Commission or outside judicial proceedings), (b) the conclusion of my participation in this proceeding, or (c) the sale or transfer of the computer used to generate or revise documents that contain or reveal proprietary information to or by a person not qualified under the Protective Order, I will permanently destroy the proprietary information that may be stored on that computer's storage media, whether permanent hard drive or removable, by using software provided by AmerGen at AmerGens expense.

8. Each document I generate that contains or reveals proprietary information shall be marked Contains Proprietary Information in a conspicuous manner.

9. I shall use proprietary information only for the purpose of participating in this proceeding (including any related Commission or outside judicial proceedings).

10. I shall keep a record of all documents containing or revealing proprietary information in my possession, including any copies of those documents or portions thereof made by me or on my behalf. At the earlier of the conclusion of this proceeding (including any related Commission or outside judicial proceedings), or the conclusion of my participation in this proceeding, I shall both (a) account to AmerGen for all the documents or other materials in my possession or control that contain or reveal proprietary information, and (b) submit such documents (including any and all portions of any notes taken in connection with review of the documents) by U.S. Postal Service registered, certified, or express mail to AmerGen for destruction.

11. Either during or after this proceeding, I will not publicly reveal any proprietary information that I received by virtue of this proceeding as long as the information remains proprietary and is not otherwise a matter of public record.

12. I acknowledge that any violation of the terms of this affidavit or the Protective Order, which incorporates the terms of this affidavit, may result in the imposition of such sanctions on me or the organization I represent, as the Atomic Safety and Licensing Board or the Commission may deem to be appropriate or other sanctions as authorized by law.

WHEREFORE, I do solemnly agree to protect and keep confidential such proprietary information as may be disclosed to me in this proceeding, in accordance with the terms of this affidavit and the Protective Order. I clearly understand that my obligations to protect and keep confidential such proprietary information survive the termination of this proceeding and remain in effect until such time as the information is no longer proprietary or is a matter of public record.

(Name and Organization)

Subscribed and sworn before me this day of , 200 .

Notary Public My commission expires:

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

)

AMERGEN ENERGY COMPANY, LLC ) Docket No. 50-219-LR

)

)

(Oyster Creek Nuclear Generating Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (PROTECTIVE ORDER AND NONDISCLOSURE AFFIDAVIT) 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 E. Roy Hawkens, 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 Paul B. Abramson Anthony J. Baratta 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 Steven C. Hamrick, Esq. Richard Webster, Esq.

Mitzi A. Young, Esq. Rutgers Environmental Law Clinic Jody C. Martin, Esq. 123 Washington Street Office of the General Counsel Newark, NJ 07102-5695 Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

2 Docket No. 50-219-LR LB ORDER (PROTECTIVE ORDER AND NONDISCLOSURE AFFIDAVIT)

Paul Gunter, Director Donald J. Silverman, Esq.

Reactor Watchdog Project Kathryn M. Sutton, Esq.

Nuclear Information Alex S. Polonsky, Esq.

and Resource Service Morgan, Lewis, & Bockius LLP 1424 16th Street, NW, Suite 404 1111 Pennsyvlania Ave., NW Washington, DC 20036 Washington, DC 20004 Bradley M. Campbell, Commissioner Jill Lipoti, Director New Jersey Department of New Jersey Department of Environmental Protection Environmental Protection P.O. Box 402 Division of Environmental Safety and Health Trenton, NJ 08625-0402 P.O. Box 424 Trenton, NJ 08625-0424 Ron Zak J. Bradley Fewell, Esq.

New Jersey Department of Exelon Corporation Environmental Protection 4300 Warrenville Road Nuclear Engineering Warrenville, IL 60555 P.O. Box 415 Trenton, NJ 08625-0415 Suzanne Leta John A. Covino, Esq.

NJPIRG Ellen Barney Balint, Esq.

11 N. Willow St. Valerie Anne Gray, Esq.

Trenton, NJ 08608 Caroline Stahl, Esq.

Deputy Attorneys General New Jersey Office of the Attorney General Environmental Permitting &

Counseling Section Division of Law Hughes Justice Complex P.O. Box 093 Trenton, NJ 08625

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 1st day of March 2007