ML11314A031

Board Memorandum and Order (Protective Order Governing Disclosure of Proprietary Materials)

ML11314A031
Person / Time
Site:	Seabrook
Issue date:	11/10/2011
From:	Paul Ryerson Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
RAS 21406, 50-443-LR, ASLBP 10-906-02-LR-BD01
Download: ML11314A031 (13)

Text

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

Paul S. Ryerson, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of: Docket No. 50-443-LR NEXTERA ENERGY SEABROOK, LLC ASLBP No. 10-906-02-LR-BD01 (Seabrook Station, Unit 1) November 10, 2011 MEMORANDUM AND ORDER (Protective Order Governing Disclosure of Proprietary Materials)

Before the Board is the October 28, 2011 joint request of licensee NextEra Energy Seabrook, LLC (NextEra), intervenors Beyond Nuclear, Seacoast Anti-Pollution League, Sierra Club of New Hampshire, Friends of the Coast and New England Coalition (collectively Intervenors) and the NRC Staff (Staff), for approval of a proposed protective order to govern the use and dissemination of certain confidential information of NextEra and its vendors or contractors. The Board grants the parties request and adopts the proposed protective order in substantially the form submitted by the parties.

This protective order governs the disclosure and use in this proceeding of certain documents that licensee NextEra claims contain proprietary trade secrets and/or commercial and financial information of NextEra or its vendors and contractors. 1 1

The provisions of this protective order do not restrict the use by Staff counsel, witnesses, employees, consultants, and others representing the Staff of documents containing protected material that NRC is entitled to receive apart from its role as a litigant in this proceeding (e.g., documents containing information required to be

Pursuant to this protective order, counsel, witnesses, employees, consultants, and others representing Intervenors or representing the Staff shall be permitted access to such documents upon the conditions set forth herein. Except as otherwise expressly set forth herein, this protective order shall remain in effect until specifically modified or terminated by this Board or the Commission.

Those persons who (1) are qualified pursuant to this protective order; and (2) have executed a non-disclosure declaration of the form included as Attachment A to this protective order, shall be permitted access to protected information governed by this protective order under the following conditions. 2 A. If counsel for NextEra 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/or commercial or financial information of NextEra or its vendors and contractors that is confidential, then he or she may designate it as such on its log of proprietary documents, and it shall be protected in accordance with the terms and conditions of this protective order. NextEras proprietary log shall provide sufficient information for assessing the claim of protected status, including the basis upon which NextEra seeks protected status for the document and a statement of the harm that would result if the information were submitted to NRC by statute, regulation, or license condition, or information submitted to, or acquired by, NRC in support of a requested licensing action or in fulfillment of its regulatory responsibilities). Instead, Staff use and disclosure 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 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 Although the NRC Staff has chosen to be a party to this proceeding and is subject to the terms of this protective order, individual members of the NRC Staff and Staff counsel need not sign the Non-Disclosure Agreement in order to access proprietary information.

The NRC Staff and its counsel, (like the Board and its staff) are Federal government employees and are thus subject to other and more stringent sanctions for the unauthorized disclosure of the protected information or protected documents. See, e.g.,

Trade Secrets Act, 18 U.S.C. § 1905.

disclosed. See, e.g., 10 C.F.R. § 2.390(b). Each such document shall hereinafter be referred to as a proprietary document. NextEra shall (1) prominently mark each proprietary document on the first page with a conspicuous Proprietary label and on each page of the document containing such information; and (2) on or before the date ten (10) days after the date a party requests a copy of a particular proprietary document, produce a copy of the document with the proprietary information unredacted by providing it to the duly authorized representatives of the party requesting the proprietary document (as defined in paragraph F below), provided each such representative has signed a non -disclosure declaration.

B. Documents duly listed on the proprietary document log provided by NextEra in accordance with 10 C.F.R. § 2.336 shall be deemed to contain proprietary trade secrets and/or commercial and financial information required to be held in confidence pursuant to the policy reflected in 10 C.F.R. § 2.390(a)(4), unless such documents are not deemed proprietary in accordance with Paragraphs D and E of this Order. The Staff and Intervenors shall hold such documents in confidence and in compliance with the terms and conditions of this protective order. 3 C. The Board will resolve any disputes arising under this protective order, including those relating to the public release of information in a proprietary document otherwise designated as subject to non-disclosure. Prior to presenting any such dispute to the Board, the parties to the dispute shall consult and use their best efforts, including the use of redaction, to resolve such dispute.

3 This protective order 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 the Freedom of Information Act (FOIA). However, nothing in this Order shall be interpreted to prevent the NRC from discharging its obligation to determine the release or retention of documents in its possession and control in accordance with federal regulation or statute.

D. Any party that objects to the designation of a document as proprietary shall notify NextEra in writing. Except for good cause shown, such written objection must be delivered to NextEra within ten (10) days of the date that NextEra provided the proprietary document to the party. If NextEra and the objecting party have been unable to reach a mutually agreeable resolution to the objection within ten (10) days after delivery of the objection, the objecting party may, at its discretion, file a motion with the Board stating the partys objection, and specifying the portions of the document that should be disclosed.

E. If a party files a motion for disclosure under paragraph D above, 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, then the unrestricted use of such documents may begin fifteen (15) days after the Boards decision. If, during such time, NextEra files a motion for reconsideration, an interlocutory appeal, or a request that the issue be certified to the Commission, the period during which the document remains protected from unrestricted use shall be extended until such time as the Board or the Commission rules on the motion, appeal, or certification request.

F. Only individual counsel, consultants, witnesses, employees, and others representing Intervenors or the Staff who have executed the attached non-disclosure declaration may have access to proprietary documents. 4 A proprietary document shall 4

Individuals who are authorized to have access to proprietary information in this proceeding in accordance with this protective order, including the NRC Staff, and who wish to have web-based access to docketed proprietary materials via the agencys Electronic Hearing Docket (EHD) should contact the Office of the Secretary via e-mail at hearingdocket@nrc.gov to obtain a password, which will provide them with access to the non-public portion of the EHD for this proceeding. Alternatively, after being served with such materials via the agencys E-Filing system, parties may wish to print/download those items, which will remain accessible via the link in the service e-mail for a period of

only be used as necessary for the conduct of this proceeding. A proprietary document shall not be disclosed in any manner to any person except (1) the Board and its staff; and (2) those engaged in the conduct of this proceeding who have executed a non-disclosure declaration and who, in the reasonable opinion of the party who has received the proprietary document, need to know the information contained in the proprietary document in order to carry out their responsibilities in this proceeding. An individual 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.

G. Counsel, consultants, witnesses, employees, and others representing a party who receive documents subject to the terms of this protective order shall maintain the confidentiality of the information contained therein as required in the non-disclosure declaration. 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 the protective order and the declaration.

H. Counsel and pro se representatives shall take all reasonable precautions necessary to assure that proprietary documents and the information contained therein are not distributed to unauthorized persons. Counsel and pro se representatives are responsible for ensuring that persons under their supervision or control comply with this protective order.

I. All pleadings, issuances, testimony, exhibits, and correspondence in this proceeding that contain information derived from a proprietary document shall be treated 30 days from the date of the service e-mail. Proprietary materials accessed via the EHD or an E-Filing service e-mail must be protected in accord with the terms of this protective order.

as confidential, marked in accordance with paragraph A above, and, if served, shall be served:

1. via the Commissions E-Filing electronic submittal system, but shall be excluded from the public docket for this proceeding by selecting the Non-Public Submission filing option on the agencys E-Filing website; and

2. only on counsel for NextEra, personnel from the Office of the Secretary on the E-Filing service list for this proceeding, the Staff, a representative of Intervenors who has signed a non-disclosure declaration, and the individual members of the Licensing Board and the Boards law clerks. 5 J. At any hearing or conference in this proceeding in which a statement is made by a 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 the 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 presenting party to notify the Board and NextEra that such testimony or statement will contain proprietary information, prior to the testimony or statement being made.

K. 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 NextEra in writing, as soon as the party is aware of the likely use of the proprietary document and, to the fullest 5

NextEra counsel wishing to be served with proprietary documents or filings, issuances, transcripts, and exhibits containing proprietary information via the E-Filing system in accordance with paragraph I.1 above, needs to advise the Office of the Secretary in a filing made via the Public Submission option under the agencys E-Filing system.

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.

L. Proprietary documents shall remain available to all parties until the date that an order 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 NextEra or shall destroy that material and advise counsel for NextEra of such destruction, 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 NextEra an affidavit stating that, to the best of its actual knowledge, all proprietary documents have been returned or destroyed, or, in the case of filings, transcripts, or exhibits, or notes in this proceeding, that such documents 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, and exhibits, and notes are not returned or destroyed, they shall remain subject to the provisions of this protective order.

M. 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 NextEra promptly of their concerns and the reasons for them.

N. Any violation of the terms of this protective order or a non-disclosure declaration executed in furtherance of this protective 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.

O. Nothing in this protective order precludes Intervenors, NextEra or the Staff from seeking changes in the protective order from the Board or the Commission as future circumstances warrant.

P. Nothing in this protective order shall be deemed to preclude any party from 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 information identified in this proceeding as proprietary comes into the possession of, or is known by any party independently of the proprietary document produced in this proceeding, and such knowledge was acquired without violation of law or other requirement applicable to such party directing the party to keep such information confidential, 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 a proprietary document or independent access to such a document shall have the burden of proving that such information was independently obtained in the event that NextEra asserts that disclosure of such information or document was a violation of this protective order.

Q. Each executed non-disclosure declaration shall be served on the parties before it is deemed in effect. This service on the parties shall be accomplished solely through the use of e-mail.

R. 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 BOARD

_________/RA/_______________

Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland November 10, 2011

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

Paul S. Ryerson, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of: Docket No. 50-443-LR NEXTERA ENERGY SEABROOK, LLC ASLBP No. 10-906-02-LR-BD01 (Seabrook Station, Unit 1) November 10, 2011 NON-DISCLOSURE DECLARATION Under penalty of perjury, I hereby certify that: (i) access to proprietary documents, as the term is defined in the Atomic Safety and Licensing Boards protective order, dated November 10, 2011, has been provided to me pursuant to the terms and restrictions of the protective order; (ii) I have been given a copy and have read the protective order; and (iii) that I agree to be bound by the terms of the protective order. 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 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 such sanctions as the Atomic Safety and Licensing Board or the Nuclear Regulatory Commission may deem to be appropriate.

WHEREFORE, I do solemnly swear to protect such proprietary documents, and their contents, as may be disclosed to me in this proceeding, in accordance with the terms of this declaration.

Name (printed): _________________________________________________________

Title:

Employed by or Representing: _____________________________________________

Signature: _____________________________________________________________

Date: _________________________________________________________________

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

)

NEXTERA ENERGY SEABROOK, LLC ) DOCKET NO. 50-443-LR (Seabrook Station, Unit 1) )

)

(License Renewal) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Licensing Board MEMORANDUM AND ORDER (Protective Order Governing Disclosure of Proprietary Materials), dated November 10, 2011, have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop: O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Richard S. Harper, Esq.

Administrative Judge richard.harper@nrc.gov Paul S. Ryerson, Chair Catherine Kanatas paul.ryerson@nrc.gov catherine.kanatas@nrc.gov Brian Newell, Paralegal Administrative Judge brian.newell@nrc.gov Michael F. Kennedy David Roth, Esq.

michael.kennedy@nrc.gov david.roth@nrc.gov Maxwell Smith, Esq.

Administrative Judge maxwell.smith@nrc.gov Richard E. Wardwell Mary Spencer, Esq.

richard.wardwell@nrc.gov mary.baty@nrc.gov Edward Williamson, Esq.

Anthony C. Eitreim, Esq. elw2@nrc.gov Chief Counsel OGC Mail Center ace1@nrc.gov OGCMailCenter@nrc.gov Hillary Cain, Law Clerk hillary.cain@nrc.gov Anne Siarnacki, Law Clerk anne.siarnacki@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Office of Commission Appellate Adjudication Mail Stop: O-16C1 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 Hearing Docket ocaamail@nrc.gov hearingdocket@nrc.gov

NEXTERA ENERGY SEABROOK, LLC (Seabrook Station Unit 1) - Docket No. 50-443-LR MEMORANDUM AND ORDER (Protective Order Governing Disclosure of Proprietary Materials)

NextEra Energy Seabrook, LLC Beyond Nuclear 801 Pennsylvania Avenue, N.W., #220 6930 Carroll Avenue, Suite 400 Washington, DC 20004 Takoma Park, MD 20912 Steven C. Hamrick, Esq. Paul Gunter, Director, Reactor Oversight Project steven.hamrick@fpl.com paul@beyondnuclear.org NextEra Energy Seabrook, LLC New Hampshire Sierra Club 700 Universe Boulevard 40 N. Main Street Juno Beach, FL 33408 Concord, NH 03870 William Blair, Esq. Kurt Ehrenberg, Field Organizer william.blair@fpl.com kurtehrenberg@gmail.com James Petro, Esq.

james.petro@fpl.com Seacoast Anti-Pollution League Mitchell S. Ross, Esq. P.O. Box 1136 mitch.ross@fpl.com Portsmouth, NH 03802 Kim Bartels, Sr. Paralegal Doug Bogen, Executive Director kim.bartels@fpl.com dbogen@metrocast.net Counsel for the Applicant State of New Hampshire Pillsbury Winthrop Shaw Pittman, LLP Office of the Attorney General 2300 N Street, N.W. 33 Capitol Street Washington, DC 20037-1122 Concord, NH 03301 David R. Lewis, Esq. K. Allen Brooks, Assistant Attorney General david.lewis@pillsburylaw.com k.allen.brooks@doj.nh.gov Michael A. Delaney, Attorney General michael.a.delaney@doj.nh.gov Friends of the Coast and Peter Roth, Assistant Attorney General New England Coalition (NEC) peter.roth@doj.nh.gov Post Office Box 98 Edgecomb, ME 04556 State of Massachusetts Raymond Shadis, Pro Se Representative Office of the Attorney General shadis@prexar.com Environmental Protection Division One Ashburton Place, 18th Floor Boston, MA 02108 Matthew Brock, Assistant Attorney General matthew.brock@state.ma.us Jennifer Faillace, Paralegal jennifer.faillace@state.ma.us

[Original signed by Linda D. Lewis]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 10th day of November 2011 2