ML103130616

Joint Motion for Protective Order

ML103130616
Person / Time
Site:	Diablo Canyon
Issue date:	11/09/2010
From:	Post J, Repka D, Tanya Smith Pacific Gas & Electric Co, Winston & Strawn, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 19099, 50-275-LR, 50-323-LR, ASLBP 10-900-01-LR-BD01
Download: ML103130616 (15)

Text

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

)

PACIFIC GAS AND ELECTRIC ) Docket No. 50-275-LR COMPANY ) Docket No. 50-323-LR

)

(Diablo Canyon Power Plant, Units 1 and 2) )

JOINT MOTION FOR PROTECTIVE ORDER In accordance with the Atomic Safety and Licensing Boards Initial Scheduling Order, dated September 15, 2010, the Pacific Gas and Electric Company (PG&E), San Luis Obispo Mothers for Peace (SLOMFP), and the Nuclear Regulatory Commission (NRC)

Staff hereby jointly move that the Licensing Board grant, for good cause shown, a protective order concerning the disclosure of confidential proprietary information in connection with this proceeding.

In accordance with Section B.2 of the Initial Scheduling Order, the parties have conferred for the purpose of developing a joint proposed protective order and nondisclosure declaration dealing with the handling and redaction of documents listed on privilege logs in this proceeding. Attached hereto is a copy of the joint proposed Protective Order, which includes a Non-Disclosure Declaration to be executed by the parties and their reviewing representative if they seek access to confidential or proprietary information.

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The parties respectfully request that the Board issue the attached Protective Order as the mechanism in this proceeding to govern access to and disclosure of information constituting confidential information of the parties.

Respectfully submitted,

/s/ signed electronically by David A. Repka Tyson R. Smith Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 Jennifer Post Pacific Gas and Electric Company 77 Beale St., B30A San Francisco, CA 94105 COUNSEL FOR THE PACIFIC GAS AND ELECTRIC COMPANY Dated at Washington, District of Columbia this 9th day of November 2010 2

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

)

PACIFIC GAS AND ELECTRIC ) Docket No. 50-275-LR COMPANY ) Docket No. 50-323-LR

)

(Diablo Canyon Power Plant, Units 1 and 2) )

[PROPOSED] MEMORANDUM AND ORDER (Protective Order)

Upon consideration of the joint motion of the parties for approval of a proposed protective order to govern the use and dissemination of proprietary or other Protected Materials in this proceeding, in which the Pacific Gas and Electric Company (PG&E), San Luis Obispo Mothers for Peace (SLOMFP), and the NRC Staff concur, 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 Protected Materials produced by, or on behalf of, any party to this proceeding, as defined in Paragraph C below. Notwithstanding any order terminating this proceeding, this protective order shall remain in effect until specifically modified or terminated by the Atomic Safety and Licensing Board (ASLB or Licensing Board) or the Commission.

B. A participant may designate as Protected Materials only information (1) that is of a type customarily held in confidence by its owner; (2) for which there is a rational basis for having customarily held it in confidence; (3) that has, in fact, been kept in confidence; and (4) that is not found in public sources. See Kansas Gas and Electric Co. (Wolf Creek Nuclear Generating Station, Unit No. 1), ALAB-327, 3 NRC 408, 416-17 (1976). Protected Materials include 1

information that is proprietary to a party or the NRC Staff, such as commercial information or sensitive unclassified non-safeguards security information.

C. Definitions - For purposes of this protective order:

1. The term party shall mean PG&E and SLOMFP or any member thereof. For the purposes of this protective order, the term party does not include the NRC Staff. The provisions of this protective order, unless expressly stated, do not apply to NRC employees, contractors, or consultants. Disclosure of Protected Material by the NRC Staff, including Staff counsel, is governed by 10 C.F.R. §§ 2.390, 2.709, 9.17, and 9.25.

2. The term materials 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 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 Protected Materials means:

a. materials provided by a party pursuant to mandatory disclosure obligations or in response to discovery requests and designated by such party in writing as Protected Materials;

b. any information contained in or obtained from such designated Protected Materials 2

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

d. notes of Protected Materials; and

e. copies of Protected Materials The term Protected Materials does not include:

a. any information or document 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 to be protected 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 or in violation of other applicable obligations of non-disclosure.

4. The term Notes of Protected Materials means memoranda, handwritten notes, or any other form of information (including electronic form) that copies or discloses Protected Materials described in paragraph C.3 above. Notes of Protected Materials are subject to the same restrictions provided in this protective order for Protected Materials except as specifically provided in this protective order.

5. The term Nondisclosure Declaration shall mean the declaration included as Attachment A to this protective order, which persons who have been granted access to Protected Materials will use to certify their understanding that such access is pursuant to the terms and restrictions of this protective order, and that such persons have read the protective order and agree to be bound by it. All Nondisclosure Declarations shall be served on counsel for the 3

parties listed in paragraph C.1 above and the NRC Staff, as provided on the official service list in this proceeding.

6. The term Reviewing Representative shall mean a person who has signed a Nondisclosure Declaration and who is:

a. an attorney who has made an appearance in this proceeding for a party, except for staff counsel;

b. attorneys, paralegals, and other employees associated for purposes of this case with an attorney described above;

c. an official or employee of a party, or a consultant or expert retained by a party (whether paid or unpaid) assisting or testifying on behalf of a party in this proceeding;

d. a person designated as a reviewing representative by order of the ASLB or the Commission; or

e. court reporters engaged for depositions or record proceedings.

D. Protected Materials shall be made available under the terms of this protective order only to parties and only through their reviewing representatives as provided in paragraphs H-L below.

The party producing the Protected Materials shall physically mark each page as PROTECTED MATERIALS, PROPRIETARY, or CONFIDENTIAL, or with words of similar import, as long as the term Protected Materials, Proprietary, Confidential, or Security Sensitive is included in that designation to indicate that they are Protected Materials. Protected Materials made available to parties shall also be made available to the NRC Staff.

E. Protected Materials shall remain available to parties until an order terminating this proceeding is no longer subject to judicial review. The parties shall, within fifteen (15) days of 4

the date described above, return the Protected Materials (excluding Notes of Protected Materials) to the party that produced them, or shall destroy the materials, except that copies of filings, official transcripts and exhibits in this proceeding that contain Protected Materials, and Notes of Protected Materials may be retained, if they are maintained in accordance with paragraph F below. Within such time period, each participant shall also submit to the producing party an affidavit stating that, to the best of its knowledge, all Protected Materials have been returned or have been destroyed or will be maintained in accordance with paragraph F below. To the extent Protected Materials (including Notes of Protected Materials) are not returned or destroyed, they shall remain subject to this Protective Order.

F. Parties shall maintain all Protected Materials in a secure place. Access to these materials shall be limited to those reviewing representatives specifically authorized pursuant to paragraphs I-L below. The parties and their counsel shall be entitled to retain filings, official transcripts and exhibits in this proceeding that contain Protected Materials and attorney-work product, provided that the parties, their employees, and counsel, and employees of such counsel shall not disclose the portions of filings, official transcripts, exhibits, or attorney-work product containing protected information to any person except pursuant to court order, or agreement with the party or protected third party that produced the protected information.

G. For documents submitted to the NRC Staff, the NRC Staff shall follow the notification procedures of 10 C.F.R. § 2.390 before making public any Protected Materials.

H. Protected Materials shall be treated as confidential by each party and by each Reviewing Representative in accordance with the declaration executed pursuant to paragraph K below.

Protected Materials shall not be used except as necessary for the conduct of this proceeding, nor shall they be disclosed in any matter to any person except a Reviewing Representative who is 5

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, in the discretion of the parties after consultation with their counsel. Reviewing Representatives may make copies of Protected Materials, but such copies become Protected Materials. Reviewing Representatives may make notes of Protected Materials, which shall be treated as Notes of Protected Materials if they disclose the contents of Protected Materials.

I. Reviewing Representatives may not use information contained in any Protected Materials obtained through this proceeding to give any party or any competitor of any party a commercial advantage.

J. In the event that a party wishes to designate as a Reviewing Representative a person not described in paragraph C.6 above, the party shall seek agreement from the party providing the Protected Materials. If an agreement is reached, that person shall be a Reviewing Representative pursuant to paragraph C.6 above with respect to those materials. If no agreement is reached, the party shall submit the disputed designation to the Licensing Board for resolution.

K. A Reviewing Representative shall not be permitted to inspect, participate in discussions regarding, or otherwise be permitted access to Protected Materials pursuant to this protective order unless the reviewing representative has first executed a Nondisclosure Declaration. A Reviewing Representative must provide counsel for the party asserting confidentiality with a copy of each executed Nondisclosure Declaration before the party will disclose any Protected Material to that Reviewing Representative.

L. Attorneys qualified as Reviewing Representatives are responsible for using their reasonable best efforts to ensure that persons under their supervision or control comply with this 6

protective order, provided that an attorney for a party shall not be held liable for violations of this Order by a party or other Reviewing Representatives.

M. Any Reviewing Representative may disclose Protected Materials to any other Reviewing Representative as long as the disclosing Reviewing Representative and the receiving Reviewing Representative have both executed a Nondisclosure Declaration. In the event that any Reviewing Representative to whom the Protected Materials are disclosed ceases to be engaged in these proceedings, or is employed or retained for a position whose occupant is not qualified to be a Reviewing Representative under paragraph C.6 above, access to Protected Materials by that person shall be terminated. Even if no longer engaged in this proceeding, every person who has executed a Nondisclosure Declaration shall continue to be bound by the provisions of this protective order and the declaration.

N. Subject to paragraph U below, the ASLB shall resolve any disputes arising under this protective order. Prior to presenting any dispute under this protective order to the ASLB, the parties to the dispute shall use their best efforts to resolve it. Any party that contests the designation of materials as protected shall notify the party that provided the materials by specifying in writing the materials whose designation is contested. This protective order shall automatically cease to apply to such materials fifteen (15) days after the notification is made unless the designator, within said fifteen-day period, files a motion with the Licensing Board, with supporting affidavits, demonstrating that the materials should continue to be protected. In any challenge to the designation of materials as protected, the burden of proof shall be on the party seeking protection. If the ASLB finds that the materials at issue are not entitled to protection, the procedures of paragraph U below shall apply.

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O. All copies of all documents reflecting Protected Materials that are filed by any party or the NRC Staff, including any pleadings, testimony, transcripts or exhibits, which refer to Protected Materials, shall

1. Be served electronically using the NRC Electronic Submittal instructions applicable to submissions governed by protective order and designating for electronic service only those representatives of the parties who are authorized to receive the Protected Materials and who have signed the Nondisclosure Declaration, the NRC Staff, the Board, and the Secretary;

2. Include an attached cover sheet identifying the pleading, testimony, exhibit, or correspondence as containing Protected Materials or information derived therefrom;

3. Specifically designate, by highlighting, marginalia, or other appropriate markings, the portion of the pleading, testimony, exhibit or correspondence, that contains Protected Materials or information derived therefrom; and

4. Be accompanied by a version of the pleading, testimony, exhibit and/or correspondence with the protected information redacted unless the party filing the pleading, testimony, exhibit and/or correspondence in good faith determines that such a redacted version cannot be prepared without undue burden or expense and so advises the Board and the other parties.

P. If any party desires to include, utilize, or refer to any Protected Materials or information derived therefrom in a pleading, brief, testimony, exhibit, or other filing in these proceedings in such a manner than might require disclosure of such material to persons other than reviewing representatives, such party shall first notify in writing both counsel for the disclosing party and the Licensing Board of such desire, identifying with particularity each of the Protected Materials 8

at issue. Thereafter, use of such Protected Materials will be governed by procedures determined by the Licensing Board.

Q Nothing in this protective order shall be construed as precluding any party from objecting to the use of Protected Materials on any legal grounds.

R. Nothing in this protective order shall preclude any party from requesting the ASLB, the Commission, or any other body having appropriate authority, to find that this protective order should not apply to all or any materials previously designated as Protected Materials pursuant to this protective order. The ASLB may alter or amend this protective order as circumstances warrant at any time during the course of this proceeding.

S. Each party governed by this protective order has the right to seek changes in it as appropriate from the ASLB or the Commission, including by stipulation or motion under 10 C.F.R. § 2.323.

T. Nothing in this protective order shall prevent any party from seeking public disclosure of information designated as Protected Materials, in accordance with NRC regulatory procedures or other applicable law.

U. If the ASLB finds at any time in the course of this proceeding that all or part of the Protected Materials need not be protected, 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 ASLBs decision, and if the party seeking protection files an interlocutory appeal or requests that the issue be certified to the Commission, for an additional ten (10) days. The parties do not waive their rights to seek additional administrative or judicial remedies after the ASLBs decision respecting Protected Materials or reviewing representative, or the Commissions denial of any appeal thereof.

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V. Nothing in this protective order precludes any party from independently seeking through discovery in any other administrative or judicial proceeding information or materials produced in this proceeding under this protective order.

W. None of the parties waives the right to pursue any other legal or equitable remedies that may be available in the event of actual or anticipated disclosure of Protected Materials.

X. Protected Materials or any other form of information that copies or discloses Protected 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 of any Nondisclosure 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 of the Commission may deem to be appropriate, including, but not limited to, referral of the violation to appropriate bar associations, and other disciplinary authorities.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD 10

ATTACHMENT A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKET NO. 50-275-LR DOCKET NO. 50-323-LR NONDISCLOSURE DECLARATION Under penalty of perjury, I hereby certify my understanding that access to confidential information designated as Protected Materials is provided to me pursuant to the terms and restrictions of the Atomic Safety and Licensing Boards protective order in this proceeding, that I have been given a copy of and have read the protective order, and that I agree to be bound by it. I understand that the contents of the Protected Materials, any notes or other memoranda, or any other form of information that copies or discloses Protected 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 appropriate bar associations or other disciplinary authorities.

WHEREFORE, I do solemnly agree to protect such confidential 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: _________________________________________________________________________

1 DC:658528.1

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

)

PACIFIC GAS AND ELECTRIC ) Docket No. 50-275-LR COMPANY ) Docket No. 50-323-LR

)

(Diablo Canyon Power Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of JOINT MOTION FOR PROTECTIVE ORDER in the captioned proceeding have been served via the Electronic Information Exchange (EIE) this 9th day of November 2010, which to the best of my knowledge resulted in transmittal of the foregoing to those on the EIE Service List for the captioned proceeding.

Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Hearing Docket E-mail: hearingdocket@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Alex S. Karlin, Chair Susan Uttal, Esq.

Nicholas G. Trikouros Lloyd Subin, Esq.

Paul B. Abramson Maxwell Smith, Esq.

Catherine Kanatas, Esq.

E-mail: Alex.Karlin@nrc.gov E-mail: Nicholas.Trikouros@nrc.gov E-mail: Susan.Utall@nrc.gov E-mail: Paul.Abramson@nrc.gov E-mail: Lloyd.Subin@nrc.gov E-mail: Maxwell.Smith@nrc.gov E-mail: catherine.kanatas@nrc.gov OGC Mail Center : OGCMailCenter@nrc.gov 1

Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1726 M St., NW, Suite 600 Washington, DC 20036 E-mail: dcurran@harmoncurran.com Respectfully submitted,

/s/ signed electronically by David A. Repka Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 COUNSEL FOR PACIFIC GAS AND ELECTRIC COMPANY 2

DC:658338.1