ML12349A116
| ML12349A116 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 12/14/2012 |
| From: | Burdick S, Frantz S, Porter D Morgan, Morgan, Lewis & Bockius, LLP, Southern California Edison Co |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 23888, 50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01 | |
| Download: ML12349A116 (6) | |
Text
DB1/ 72485618.1 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
) Docket Nos. 50-361-CAL & 50-362-CAL SOUTHERN CALIFORNIA EDISON COMPANY )
)
(San Onofre Nuclear Generating Station,
) December 14, 2012 Units 2 and 3)
)
)
SOUTHERN CALIFORNIA EDISON COMPANYS ANSWER OPPOSING CITIZENS OVERSIGHTS OBJECTION TO THE BOARDS DECEMBER 10, 2012 PROTECTIVE ORDER I.
INTRODUCTION On December 10, 2012, the Atomic Safety and Licensing Board (Board) issued a Protective Order in this proceeding granting Southern California Edison Companys (SCE) and Friends of the Earths (FOE) Joint Motion for Entry of a Protective Order to govern the disclosure of Protected Information, such as the disclosure of proprietary information.1 The Protective Order attaches a Non-Disclosure Affidavit that must be executed by certain individuals before they can access Protected Information. On December 11, 2012, Citizens Oversight, Inc. (or Citizens Oversight Projects, COPS) filed an Objection by Citizens Oversight to the Use of Nondisclosure Agreements to Withhold Information from the Public by Southern California Edison (Objection), requesting that the Board set aside the Protective Order and authorize public disclosure of Protected Information, except where SCE can show, on a case-by-case basis, that releasing the information to the public will result in an actual injury to SCE.
1 Order (Granting Joint Motion for Entry of a Protective Order and Non-Disclosure Agreement) (Dec. 10, 2012)
(Protective Order).
DB1/ 72485618.1 2
COPS Objection should be rejected. As discussed below, COPS is not a party to this proceeding, Non-Disclosure Agreements are standard practice in Nuclear Regulatory Commission (NRC) proceedings, and SCE has submitted a proper request for withholding under 10 C.F.R. § 2.390.
II.
COPS OBJECTION TO THE DECEMBER 10 PROTECTIVE ORDER SHOULD BE REJECTED A.
COPS Is Not a Party to the Proceeding COPS is not a party to the proceeding and has no right to file an objection to the Protective Order. Participation in a proceeding by a non-party, such as COPS, is very limited and is governed by 10 C.F.R. § 2.315(a) (emphasis added):
A person who is not a party (including persons who are affiliated with or represented by a party) may, in the discretion of the presiding officer, be permitted to make a limited appearance by making an oral or written statement of his or her position on the issues at any session of the hearing or any prehearing conference within the limits and on the conditions fixed by the presiding officer. However, that person may not otherwise participate in the proceeding. Such statements of position shall not be considered evidence in the proceeding.
The Board has provided no opportunity for a limited appearance statement by COPS, and therefore the Objection is impermissible. Even if the Board had provided such an opportunity, the Objection would not satisfy the limited purpose of this participation under Section 2.315(a) by non-parties to alert the Board and the parties to areas in which evidence may need to be adduced.2 COPS is requesting public disclosure of Protected Information, which does not satisfy the narrow purpose of Section 2.315(a).
2 La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1087 n.12 (1983).
DB1/ 72485618.1 3
In summary, COPS Objection to the Protective Order is impermissible because COPS is not a party to the proceeding. Therefore, the Objection should be rejected.
B.
Use of Non-Disclosure Agreements Is Standard Practice in NRC Proceedings COPS request that the Protective Order and Non-Disclosure Agreement be set aside in favor of a case-by-case Board review of Protected Information goes against established NRC practice. For example, in a series of recent license amendment requests, in addition to providing Notices of Hearings, the NRC provided instructions governing a potential partys access to Protected Information, including the use of Non-Disclosure Agreements and Protective Orders.3 COPS Objection is inconsistent with this practice. Furthermore, the Objection is contrary to the specific agreement reached by both SCE and FOE and accepted in the Boards Protective Order.
C.
SCE Submitted a Request for Withholding Under 10 C.F.R. § 2.390 Under 10 C.F.R. § 2.390(a)(4), proprietary informationtrade secrets, privileged, or confidential commercial or financial informationmay be withheld from public disclosure.4 The information COPS seeks to make public was identified by SCE as proprietary information.
SCE submitted a request for withholding of this information under 10 C.F.R. § 2.390.5 SCEs request for withholding is consistent with the Protective Order, which governs the use of proprietary information under 10 C.F.R. § 2.390(a)(4).6 In its Objection, COPS requests that proceedings on this matter... should remain open, transparent, and completely public, 3
See, e.g., Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving Proposed No Significant Hazards Considerations and Containing Sensitive Unclassified Non-Safeguards Information and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information, 77 Fed. Reg. 48,556, 48,563 (Aug. 14, 2012).
4 10 C.F.R. § 2.390(b) describes the procedures that must be followed by the party submitting the withholding request. 10 C.F.R. § 2.390(c) states that the Commission may either grant or deny the withholding request.
5 Letter from R. St. Onge, SCE, to NRC Document Control Desk, Confirmatory Action Letter Response -
Proprietary Documents (Nov. 28, 2012).
6 Protective Order at 1.
DB1/ 72485618.1 4
unless the licensee can demonstrate that they will be actually injured by the release of specific information. 7 But COPS request for disclosure of proprietary information is inconsistent with the process in 10 C.F.R. § 2.390, which provides for withholding of proprietary information in cases such as this where the licensee has submitted appropriate affidavits demonstrating that the information in question is proprietary.
III.
CONCLUSIONS As demonstrated above, COPS request to set aside the Protective Order should be rejected. COPS is not a party to this proceeding and the Protective Order is consistent with NRC practice and regulations. For these reasons, the Protective Order and associated Non-Disclosure Agreement should remain in place.
7 Objection at 4.
DB1/ 72485618.1 5
Respectfully submitted, Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Steven P. Frantz Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5059 E-mail: sburdick@morganlewis.com Douglas Porter Director and Managing Attorney Generation Policy and Resources Law Department Southern California Edison Company 2244 Walnut Grove Avenue GO1, Q3B, 335C Rosemead, CA 91770 Phone: 626-302-3964 E-mail: Douglas.Porter@sce.com Counsel for Southern California Edison Company Dated in Washington, D.C.
this 14th day of December 2012
DB1/ 72485618.1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
) Docket Nos. 50-361-CAL & 50-362-CAL SOUTHERN CALIFORNIA EDISON COMPANY )
)
(San Onofre Nuclear Generating Station,
) December 14, 2012 Units 2 and 3)
)
)
CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Southern California Edison Companys Answer Opposing Citizens Oversights Objection to the Boards December 10, 2012 Protective Order was filed through the E-Filing system.
Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5059 Fax: 202-739-3001 E-mail: sburdick@morganlewis.com Counsel for Southern California Edison Company