ML102980538

ME1671, ME1672, & L24299 - Proprietary Information Determination Letter for Withholding Information from Public Disclosure RAI Responses Dated October 5, 2010

ML102980538
Person / Time
Site:	Indian Point
Issue date:	11/16/2010
From:	Boska J Plant Licensing Branch 1
To:	Entergy Nuclear Operations
Boska J, NRR/DORL/LPLI-1, 415-2901
References
TAC L24299, TAC ME1671, TAC ME1672
Download: ML102980538 (5)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 Novem~er l~, /010 Vice President, Operations Entergy Nuclear Operations, Inc.

Indian Point Energy Center 450 Broadway, GSB P.O. Box 249 Buchanan, NY 10511-0249

SUBJECT:

INDIAN POINT NUCLEAR GENERATING UNIT NOS. 2 AND 3 - REQUEST FOR WITHHOLDING INFORMATION FROM PUBLIC DISCLOSURE (TAC NOS. ME1671, ME1672, AND L24299)

Dear Sir or Madam:

By letter dated October 5,2010 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML102910511), Entergy Nuclear Operations, Inc. submitted an affidavit dated October 1, 2010, executed by Tammy Morin of Holtec International, requesting that the information contained in the following document be withheld from public disclosure pursuant to Title 10 of the Code of Federal Regulations (10 CFR), Part 2, Section 2.390:

Enclosures 1 and 2, Letter from Mr. J. E. Pollock, Site Vice President, dated October 5, 2010, "Indian Point Nuclear Power Plant Units 2 and 3, Response to Request for Additional Information regarding the Inter-Unit Spent Fuel Transfer License Amendment Request (TAC Nos. ME1671, ME1672, and L24299)."

A nonproprietary copy of Enclosure 1 has been added to the Nuclear Regulatory Commission's (NRC's) Public Electronic Reading Room, ADAMS Accession No. ML103080113.

The affidavit stated that the submitted information should be considered exempt from mandatory public disclosure for the following reasons:

(3) In making this application for withholding of proprietary information of which it is the owner, Holtec International relies upon the exemption from disclosure set forth in the Freedom of Information Act ("FOIA"), 5 USC Sec. 552(b)(4) and the Trade Secrets Act, 18 USC Sec. 1905, and NRC regulations 10 CFR Part 9.17(a)(4), 2.390(a)(4), and 2.390(b)(1) for "trade secrets and commercial or financial information obtained from a person and privileged or confidential" (Exemption 4). The material for which exemption from disclosure is here sought is all "confidential commercial information", and some portions also qualify under the narrower definition of "trade secret", within the meanings assigned to those terms for purposes of FOIA Exemption 4 in, respectively, Critical Mass Energy Project v. Nuclear Regulatory Commission, 975F2d871 (DC Cir. 1992),

and Public Citizen Health Research Group v. FDA, 704F2d1280 (DC Cir.

1983).

-2 (4) Some examples of categories of information which fit into the definition of proprietary information are:

a. Information that discloses a process, method, or apparatus, including supporting data and analyses, where prevention of its use by Holtec's competitors without license from Holtec International constitutes a competitive economic advantage over other companies;

b. Information which, if used by a competitor, would reduce his expenditure of resources or improve his competitive position in the design, manufacture, shipment, installation, assurance of quality, or licensing of a similar product.

c. Information which reveals cost or price information, production, capacities, budget levels, or commercial strategies of Holtec International, its customers, or its suppliers;

d. Information which reveals aspects of past, present, or future Holtec International customer-funded development plans and programs of potential commercial value to Holtec International;

e. Information which discloses patentable subject matter for which it may be desirable to obtain patent protection.

The information sought to be withheld is considered to be proprietary for the reasons set forth in paragraphs 4.a, and 4.b, above.

(5) The information sought to be withheld is being submitted to the NRC in confidence. The information (including that compiled from many sources) is of a sort customarily held in confidence by Holtec International, and is in fact so held. The information sought to be withheld has, to the best of my knowledge and belief, consistently been held in confidence by Holtec International. No public disclosure has been made, and it is not available in public sources. All disclosures to third parties, including any required transmittals to the NRC, have been made, or must be made, pursuant to regulatory provisions or proprietary agreements which provide for maintenance of the information in confidence. Its initial designation as proprietary information, and the subsequent steps taken to prevent its unauthorized disclosure, are as set forth in paragraphs (6) and (7) following.

(6) Initial approval of proprietary treatment of a document is made by the manager of the originating component, the person most likely to be acquainted with the value and sensitivity of the information in relation to industry knowledge. Access to such documents within Holtec International is limited on a "need to know" basis.

(7) The procedure for approval of external release of such a document typically requires review by the staff manager, project manager, principal scientist or other equivalent authority, by the manager of the cognizant marketing function (or his designee), and by the Legal Operation, for technical content, competitive effect, and determination of the accuracy of the proprietary designation. Disclosures outside Holtec International are limited to regulatory bodies, customers, and potential customers, and their

-3 agents, suppliers, and licensees, and others with a legitimate need for the information, and then only in accordance with appropriate regulatory provisions or proprietary agreements.

(8) The information classified as proprietary was developed and compiled by Holtec International at a significant cost to Holtec International. This information is classified as proprietary because it contains detailed descriptions of analytical approaches and methodologies not available elsewhere. This information would provide other parties, including competitors, with information from Holtec International's technical database and the results of evaluations performed by Holtec International.

A substantial effort has been expended by Holtec International to develop this information. Release of this information would improve a competitor's position because it would enable Holtec's competitor to copy our technology and offer it for sale in competition with our company, causing us financial injury.

(9) Public disclosure of the information sought to be withheld is likely to cause substantial harm to Holtec International's competitive position and foreclose or reduce the availability of profit-making opportunities. The information is part of Holtec International's comprehensive spent fuel storage technology base, and its commercial value extends beyond the original development cost. The value of the technology base goes beyond the extensive physical database and analytical methodology, and includes development of the expertise to determine and apply the appropriate evaluation process.

The research, development, engineering, and analytical costs comprise a substantial investment of time and money by Holtec International.

The precise value of the expertise to devise an evaluation process and apply the correct analytical methodology is difficult to quantify, but it clearly is substantial.

Holtec International's competitive advantage will be lost if its competitors are able to use the results of the Holtec International experience to normalize or verify their own process or if they are able to claim an equivalent understanding by demonstrating that they can arrive at the same or similar conclusions.

The value of this information to Holtec International would be lost if the information were disclosed to the public. Making such information available to competitors without their having been required to undertake a similar expenditure of resources would unfairly provide competitors with a windfall, and deprive Holtec International of the opportunity to exercise its competitive advantage to seek an adequate return on its large investment in developing these very valuable analytical tools.

-4 We have reviewed your application and the material in accordance with the requirements of 10 CFR 2.390 and, on the basis of the statements in the affidavit, have determined that the submitted information sought to be withheld contains proprietary commercial information and should be withheld from public disclosure.

Therefore, Enclosures 1 and 2, Letter from Mr. J. E. Pollock, Site Vice President, dated October 5, 2010, "Indian Point Nuclear Power Plant Units 2 and 3 Response to Request for Additional Information regarding the Inter-Unit Spent Fuel Transfer License Amendment Request (TAC Nos. ME1671, ME1672, and L24299)," ADAMS Accession Nos. ML102910513 through ML102910515, ML102910517, and ML102980008, which is marked as proprietary, will be withheld from public disclosure pursuant to 10 CFR 2.390(b)(5) and Section 103(b) of the Atomic Energy Act of 1954, as amended.

Withholding from public inspection shall not affect the right, if any, of persons properly and directly concerned to inspect the documents. If the need arises, we may send copies of this information to our consultants working in this area. We will, of course, ensure that the consultants have signed the appropriate agreements for handling proprietary information.

If the basis for withholding this information from public inspection should change in the future such that the information could then be made available for public inspection, you should promptly notify the Nuclear Regulatory Commission (NRC). You also should understand that the NRC may have cause to review this determination in the future, for example, if the scope of a Freedom of Information Act request includes your information. In all review situations, if the NRC makes a determination adverse to the above, you will be notified in advance of any public disclosure.

Please contact me at (301) 415-2901 if you have any questions on this issue.

Sincerely, q;~,

c:t1':~t ~iCenSing ~ctManager Branch 1-1 Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation Docket Nos. 50-247 and 50-286 cc: Ms. Tammy Morin Holtec Center 555 Lincoln Drive West Marlton, NJ 08053 Additional Distribution via Listserv

-4 We have reviewed your application and the material in accordance with the requirements of 10 CFR 2.390 and, on the basis of the statements in the affidavit, have determined that the submitted information sought to be withheld contains proprietary commercial information and should be withheld from public disclosure.

Therefore, Enclosures 1 and 2, Letter from Mr. J. E. Pollock, Site Vice President, dated October 5, 2010, "Indian Point Nuclear Power Plant Units 2 and 3 Response to Request for Additional Information regarding the Inter-Unit Spent Fuel Transfer License Amendment Request (TAC Nos. ME1671, ME1672, and L24299)," ADAMS Accession Nos. ML102910513 through I\/IL102910515, I\/IL102910517, and ML102980008, which is marked as proprietary, will be withheld from public disclosure pursuant to 10 CFR 2.390(b)(5) and Section 103(b) of the Atomic Energy Act of 1954, as amended.

Withholding from public inspection shall not affect the right, if any, of persons properly and directly concerned to inspect the documents. If the need arises, we may send copies of this information to our consultants working in this area. We will, of course, ensure that the consultants have signed the appropriate agreements for handling proprietary information.

If the basis for withholding this information from public inspection should change in the future such that the information could then be made available for public inspection, you should promptly notify the Nuclear Regulatory Commission (NRC). You also should understand that the NRC may have cause to review this determination in the future, for example, if the scope of a Freedom of Information Act request includes your information. In all review situations, if the NRC makes a determination adverse to the above, you will be notified in advance of any public disclosure.

Please contact me at (301) 415-2901 if you have any questions on this issue.

Sincerely, IRAI John P. Boska, Senior Project Manager Plant Licensing Branch 1-1 Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation Docket Nos. 50-247 and 50-286 cc: Ms. Tammy Morin Holtec Center 555 Lincoln Drive West Marlton, NJ 08053 Additional Distribution via Listserv DISTRIBUTION:

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