ML15099A785

From kanterella
Jump to navigation Jump to search
NYS Motion Public Redacted
ML15099A785
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 04/09/2015
From: Kwong L
State of NY, Office of the Attorney General
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 27488
Download: ML15099A785 (25)
v • d • e


Text

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

x In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. April 9, 2015

x STATE OF NEW YORK MOTION PUBLIC & REDACTED VERSION Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

x In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. April 9, 2015

x STATE OF NEW YORK MOTION TO WITHDRAW THE PROPRIETARY DESIGNATION OF VARIOUS PRESSURIZED WATER REACTOR OWNERS GROUP AND WESTINGHOUSE DOCUMENTS Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224

The State of New York brings this motion pursuant to Paragraph D of the Atomic Safety and Licensing Boards September 4, 2009 Protective Order (Protective Order) to challenge the proprietary designation of five documents relating to contentions NYS-25 and NYS-38/RK-TC-5 which were produced by Entergy as part of its mandatory disclosures. The documents consist of a memorandum prepared by a trade association of which Entergy is a member, the Pressurized Water Reactor Owners Group (PWROG), and four calculation notes prepared by Entergys vendor, Westinghouse. When Entergy produced the documents they were marked as containing PWROG- or Westinghouse- designated proprietary information and therefore are subject to the parties non-disclosure agreement. The State hereby seeks an order striking those proprietary designations.

BACKGROUND The Protective Order and 10 C.F.R. § 2.390 Under the Protective Order a party seeking to restrict the disclosure of relevant information always retains the burden of proving that the information is confidential business information. Entergy Nuclear Operations, Inc., (Indian Point Nuclear Generating Units 2 and 3),

Protective Order (unpublished) at ¶ D (Sept. 4, 2009) (ML092470105). Paragraph A of the Protective Order provides that, [I]f the Initial Holder of proprietary information or its counsel has a good faith belief that a document or portion thereof contains information that qualifies as a trade secret and/or commercial or financial information that is privileged or confidential under 10 C.F.R. §§ 2.390(a)(4) and (b)(4)(i)-(v), the Initial Holder or its counsel may designate such document on its proprietary log as a proprietary document, and it shall be protected in accordance with the terms and conditions of this Protective Order. The Protective Order further authorizes a party that received information designated as proprietary to challenge that designation and seek the removal of that designation. Id. at ¶ D. As noted, the Protective Order

confirms that the Initial Holder shall have the burden of establishing that the information sought to be protected from public disclosure is privileged or confidential so that the Board can then determine whether, on balance, non-disclosure is warranted under 10 C.F.R. § 2.390. Id. at ¶ D.

Pursuant to 10 C.F.R. §2.390(b)(i)-(v), considerations relevant to the Commissions determination as to whether information constitutes a trade secret or confidential or privileged commercial or financial information that may be withheld from public disclosure include:

(i) Whether the information has been held in confidence by its owner; (ii) Whether the information is of a type customarily held in confidence by its owner and, except for voluntarily submitted information, whether there is a rational basis therefor; (iii) Whether the information was transmitted to and received by the Commission in confidence; (iv) Whether the information is available in public sources; (v) Whether public disclosure of the information sought to be withheld is likely to cause substantial harm to the competitive position of the owner of the information, taking into account the value of the information to the owner; the amount of effort or money, if any, expended by the owner in developing the information; and the ease or difficulty with which the information could be properly acquired or duplicated by others.

In the event of a dispute over a proprietary designation, Paragraph C of the Protective Order provides that [P]rior to presenting any dispute arising under this Protective Order to the Board, the parties to the dispute shall consult and endeavor to resolve such dispute, including, but not limited to, the use of redaction. The Board shall resolve any disputes arising under this Protective Order not previously resolved, including those relating to the public release of information in a proprietary document otherwise designated as subject to nondisclosure. Id. at

¶ C.

Indian Point Unit 2 and Unit 3 Indian Point Unit 2 (IP2) and Indian Point Unit 3 (IP3) each contain a four-loop Westinghouse pressurized water reactor. According to Atomic Energy Commission and NRC documents, the Consolidated Edison Company (ConEd) received the following construction 2

permits and operating licenses for IP2 and IP3 on the following dates:

CONSTRUCTION PERMIT ISSUED OPERATING LICENSE ISSUED IP Unit 2 October 14, 1966 September 28, 1973 IP Unit 3 August 13, 1969 December 12, 1975 Source: Federal Register and NRC Information Digest. 1 Given the regulatory history, it appears that various reactor components were fabricated and installed between 1966 and 1973 for IP2 and 1969 and 1975 for IP3.

NRC Branch Technical Position 5-3 In early 2014, NRC was alerted to a potential non-conservatism in certain methodologies prescribed in NUREG-0800 Branch Technical Position (BTP) 5-3 for estimating the initial fracture toughness of reactor vessel materials. See Letter from P. Salas (Areva) to NRC dated January 30, 2014 (ML14038A265). BTP 5-3 was relied upon by various nuclear plants that received their construction permits before August 1973 to estimate reference temperature (RTNDT) and upper shelf energy (USE) values and thereby demonstrate compliance with ASME Code and USNRC margins for reactor pressure vessel integrity. Because these baseline values are used for determining pressure-temperature (PT) heatup /cooldown curves, and other operational aspects of nuclear facilities, NRC and industry have recently examined the issue of BTP 5-3s non-conservatism and explored the potential consequences of this information. See Kirk, M. and Sheng, S., NRC Presentation Assessment of BTP 5-3 Protocols to Estimate RTNDT(u) and USE (2014)(ML14163A524); Lubinski, J., NRC Memorandum Summary of February 19, 2015, Public Meeting to Discuss Reactor Pressure Vessel Issues (2015)

(ML15096A128).

1 See 31 Fed. Reg. 13,616-17 (Oct. 21, 1966); 34 Fed. Reg. 13,437 (Aug. 20, 1969); NUREG-1350, Volume 20, 2008 - 2009 Information Digest, at 103, 113 (Aug. 2008).

3

BTP 5-3 may have been used for determining baseline fracture toughness values for IP2 and IP3, as the permits for their construction were issued prior to 1973. On January 5, 2015, Entergy identified on its Privilege Log a PWROG memorandum dated October 28, 2014 entitled BTP 5-3 Industry Issue, Executive Review. The document was produced to the State on January 14, 2015.

Westinghouses Environmental Assisted Fatigue Analyses for IP2 and IP3 As part of Entergys License Renewal Applications (LRAs) for IP2 and IP3, Entergy committed to update the fatigue usage calculations using refined fatigue analyses to determine valid [cumulative usage factors] CUFs less than 1.0 when accounting for the effects of reactor water environment. See LRA, Commitment 33. Entergy further committed, in LRA Commitment 49, to [r]ecalculate each of the limiting CUFs in Section 4.3 of the LRA for the reactor vessel internals to include the reactor coolant environment effects (Fen). Under Entergys Fatigue Monitoring Program, corrective actions could include further re-analysis prior to the environmental assisted cumulative usage factors (CUFen) reaching 1.0. Id. To satisfy these commitments, Entergy retained Westinghouse to perform on its behalf updated and refined environmental assisted fatigue analyses for various IP2 and IP3 components. As indicated by the documents own titles, Westinghouse published the results of its EAF analyses for the accumulator nozzles for IP2 and IP3 (CN-PAFM-09-77), EAF analyses for the pressurizer spray nozzle for IP2 (CN-PAFM-13-40), EAF screening evaluations for IP2 and IP3 (CN-PAFM 35) and refined EAF screening evaluations for IP2 and IP3 (CN-PAFM-13-32) in four separate reports, also referred to as calculation notes. These calculation notes were also identified on Entergys Proprietary Logs and produced to the State.

4

The States Notice of Objection In early 2015, in preparation for the submission of supplemental contentions, the State initiated informal discussions with Entergy about the public reference to results contained in various Westinghouse authored documents. Entergy responded that Westinghouse did not agree to the disclosure of any results that had not previously been provided to NRC Staff. Kwong Declaration, ¶ 2.

Pursuant to the Protective Order, on March 9, 2015, the State provided Entergy with a Notice of Objection to the continued proprietary designation and confidential treatment of five documents. See Attachment 1 to Declaration of Lisa S. Kwong dated April 9, 2015. The documents include the PWROG memorandum relating to BTP 5-3 and the four calculation notes containing the results of Westinghouses EAF analyses performed in support of Entergys license renewal applications for IP2 and IP3. See Attachments 2-6 to Kwong Declaration.

DECLARATION DOCUMENT TITLE AND DESCRIPTION/DATE/PAGES PRIVILEGE LOG DATE DOCUMENT ID NO.

ATTACHMENT DATE/ NUMBER PRODUCED NO.

2 Pressurized Water Reactor Owners Group, BTP 5-3 1/5/15 #758 1/14/15 IPECPROP00081155

-81160 Industry Issue, Executive Review (October 28, 2014). 6 pages.

3 Westinghouse Proprietary Report, Class 2, Indian Point 12/1/10 #559 1/7/11 IPECPROP00057823

-57916 Units 2 & 3 Accumulator Nozzle Environmental Fatigue Evaluation, CN-PAFM-09-77 (2010). 93 pages.

4 Westinghouse Proprietary Report, Class-2, Indian Point 12/5/12 #667 12/17/12 IPECPROP00072778 1/7/13 -72861 Unit 2 and Unit 3 EAF Screening Evaluations, CN- [color PAFM-12-35, Rev. 1 (2012). version]

83 pages.

5 Westinghouse Proprietary Report, Class-2, Indian Point 11/4/13 #710 11/11/13 IPECPROP00078338

-78425 Unit 2 (IP2) and Unit 3 (IP3), Refined EAF Analyses and EAF Screening Evaluations, CN-PAFM-13-32 (2013).

88 pages.

6 Westinghouse Proprietary Report, Class-2, Indian Point 12/4/13 #738 12/12/13 IPECPROP00079751

-79873 Unit 2 Pressurizer Spray Nozzle Transfer Function Database Development and Environmental Fatigue Evaluations, CN-PAFM-13-40 (2013). 122 pages.

5

The States Notice included a proposed resolution, including a request for Entergy to identify with specificity the portions of the documents it or its vendor/trade association claimed to be proprietary and confidential, the basis for such claims, and the harm that would result from disclosure. At Entergys request and in an effort to resolve the issue without litigation, on March 19, 2015 the State proposed to modify the scope of its challenge in order to facilitate Entergys discussions with Westinghouse. See Attachment 7 (March 9-30, 2015 email thread between L.

Kwong and R. Kuyler) to Kwong Declaration.

Westinghouse rejected the States request and continued to assert that each and every page of the five documents constituted proprietary information. On March 27, 2015 Entergy advised the State that Westinghouses proprietary claim extended to the documents in their entirety and that Westinghouse was unwilling to allow any portion of the calculation notes to be made public. Thereafter, on March 30, 2015, Entergy advised that Westinghouse coordinated the activities of the PWROG and that it was Westinghouses position that the PWROG memo contained confidential commercial information belonging to its members and that the entire memo should remain subject to the Protective Order. No particularized statements or affidavits were offered in support of Westinghouses position. Id.

The parties have been unable to resolve their dispute despite their efforts to do so during the Consultation Period. The State therefore seeks an Order striking Westinghouses proprietary designations because neither Entergy nor Westinghouse have shown that the documents at issue contain a trade secret or confidential commercial/financial commercial within the scope of the Protective Order or 10 C.F.R § 2.390.

6

ARGUMENT I. ENTERGY AND WESTINGHOUSE HAVE FAILED TO SHOW THAT THE DOCUMENTS AT ISSUE CONTAIN TRADE SECRETS OR CONFIDENTIAL COMMERCIAL/FINANCIAL INFORMATION WITHIN THE SCOPE OF THE PROTECTIVE ORDER AND THE COMMISSIONS PUBLIC ACCESS TO INFORMATION REGULATIONS SET FORTH AT 10 C.F.R. § 2.390.

The Board should issue an order striking Westinghouses proprietary designation for the PWROG memo and four Westinghouse calculation notes because Westinghouse and Entergy have failed to show that the documents contain trade secrets or confidential commercial/financial information within the scope of the Protective Order and the Commissions public access to information regulations set forth at 10 C.F.R. § 2.390. Despite being asked to do so in the States Notice of Objection, and paragraph C of the Protective Order, neither Westinghouse nor Entergy have articulated with specificity the basis for the proprietary claims. Rather than offering an affidavit addressing the considerations set forth in 10 C.F.R. § 2.390(b)(4), the companies rely on mere conclusory allegations regarding the confidential or proprietary nature of the information contained in the documents. Significantly, Westinghouse has not asserted - nor could it assert - that release of the documents will cause Westinghouse substantial competitive harm. Thus, Entergy and Westinghouses assertions that the documents constitute, in their entirety, proprietary information exempt from public disclosure is completely unsupported. A review of the standards for public disclosure of NRC documents reveals that the documents at issue are simply not entitled to confidential treatment.

A. The Commissions policies and regulations regarding public access to information related to agency decision-making require disclosure of the Westinghouse documents.

Westinghouses (and Entergys) proprietary claim to the documents should be rejected based on the Commissions policies and regulations supporting public access to information related to agency decision-making. 10 C.F.R. §2.390; 5 U.S.C. § 552(a)(2). As a general rule, 7

NRC regulations require disclosure of records and documents relating to issues of licensing, compliance, standard design approval or rulemaking. 10 C.F.R. § 2.390(a). Exceptions to this rule include potential non-disclosure for trade secrets and commercial or financial information obtained from a person and privileged or confidential. 10 C.F.R. § 2.390(a)(4). Thus, it has been observed that, disclosure of information in NRC files [is] the rule, and nondisclosure the exception. Westinghouse Electric Co. v. U.S. Nuclear Regulatory Commission, 555 F.2d 82, 87 (3rd Cir. 1977). The Commission may, even with respect to information determined to be proprietary, authorize public disclosure if it determines that such disclosure is warranted. 10 C.F.R. § 2.390(b)(5). See Westinghouse, 555 F.2d at 92 (Disclosure of proprietary information forming the bases of a decision on a licensing matter may facilitate both informed administrative action and intelligent judicial review.).

Since 10 C.F.R. § 2.390 is part of the NRCs regulatory framework for implementing the Freedom of Information Acts (FOIA) (5 U.S.C. § 552) requirements for ensuring public access to agency documents, judicial interpretations of FOIAs disclosure requirements are instructive. See Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-05-08, 61 N.R.C. 129 at 163 (Commission determined that 10 C.F.R. § 2.790 (now, § 2.390) embodied the standards of FOIAs Exemption 4 for trade secrets and confidential commercial/financial information). Courts have defined trade secret, for FOIA purposes, as a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort. Public Citizen Health Research Group v.

Food & Drug Admin., 704 F.2d 1280, 1288 (D.C. Cir. 1983). In Public Citizen, a nonprofit organization engaged in research and consumer advocacy on health and safety matters sought access to the Food and Drug Administrations raw data, data summaries, memoranda and 8

correspondence regarding adverse reactions associated with the use of intraocular lenses. Id. In reversing the lower courts overbroad construction of the term trade secrets, the Circuit Court for the District of Columbia noted the distinction between data relating to processes and methods, which are the product of private innovation and deserve protection, and safety and efficacy data, which are in the public interest to disclose. Id. at 1289, n. 23. The court concluded that the information sought was, at best, tangentially related to the productive process and therefore did not fall within the ambit of trade secrets exempt from disclosure. Id. at 1290.

With respect to the second category of information potentially exempt from disclosure, courts have consistently held that commercial or financial information is confidential for purposes of FOIAs exemption if its disclosure would either (1) impair the government's ability to obtain necessary information in the future or (2) cause substantial harm to the competitive position of the person from whom the information was obtained. Critical Mass Energy Project

v. Nuclear Regulatory Commission, 975 F.2d 871 (D.C. Cir. 1992) (affirming National Parks two-part test for determining whether financial or commercial information that is required to be submitted to an agency should be treated as confidential under FOIA); Public Citizen, 704 F.2d at 1290-1291; National Parks and Conservation Assn v. Morton, 498 F.2d 765 (D.C. Cir. 1974).

The important point for competitive harm . . . is that it be limited to harm flowing from the affirmative use of proprietary information by competitors. Public Citizen, 704 F.2d at 1291, n 30.

In this regard, courts have also recognized that a document should not be withheld from disclosure just because it may be embarrassing to its owner. General Electric Co. v. U.S.

Nuclear Regulatory Commission, 750 F.2d 1394, 1403-1404 (7th Circ. 1984); see also Republic of the Philippines v. Westinghouse Electric Corp., 949 F.2d 653 (3rd Cir. 1991) (unsealing of court papers filed in action involving alleged bribery of public officials in connection with 9

nuclear reactor construction project was proper since companys concern over negative impact on companys public image was insufficient to rebut presumption of access to judicial records).

For example, in General Electric Co. v. U.S. Nuclear Regulatory Commission, General Electric contested public access to a several hundred page report prepared by the company which contained self-critical remarks about the design and safety of its boiling water nuclear reactors.

The report was submitted in confidence to the Atomic Safety and Licensing Board, and the company opposed its release on the basis that the report contained proprietary information. In response, the court noted that the competitive harm that attends any embarrassing disclosure is not the sort of thing that triggers exemption 4 [proprietary status]. There must be substantial competitive harm to the firm that owns the information sought to be made public. The court further noted that though any disparagement of nuclear power could harm General Electric vis-

-vis producers of competing systems for generating electricity, the harm likely to be done by a single document in this respect is too speculative to provide the basis for a proprietary claim.

Id.

B. The PWROG memo and Westinghouse calculation notes do not contain trade secrets or confidential commercial information.

1. The PWROG Memo 10

See Kirk and Sheng, NRC Presentation (2014); Lubinski, NRC Memo (2015) (ML15096A128). In fact, it appears that PWROG made a presentation of its understanding of the BTP 5-3 issue and its proposed mitigation strategy at NRCs February 2015 public meeting on this topic. See PWROG Presentation (2015)

(ML15061A095); Lubinski, NRC Memo (ML15096A128).

Both Westinghouse and PWROG have, in the past, released public documents discussing emerging technical issues affecting its vendees or members. 2 Westinghouse and PWROG should treat the PWROG BTP 5-3 issues memo no differently.

2. Westinghouses Calculation Notes and EAF Results The four calculation notes containing the results of Westinghouses environmental assisted fatigue evaluations for various components at IP2 and IP3 do not appear to contain trade secrets or confidential commercial information. Like the adverse incidence data submitted to the FDA by intraocular lenses manufacturers determined not to be trade secrets in Public Citizen (704 F.2d at 1290), the IP2- and IP3-specific operational data and analyses contained in Westinghouses calculation notes bear no connection to a secret production process. Nor do the results of Westinghouses analyses reveal secret formulae or methodology. As the court in 2

See PWROG-14001-NP, Rev. 1 PRA Model for the Generation III Westinghouse Shutdown Seal, Risk Management Committee, PA-RMSC-0499R2 (ML14190A332); PRWOG-14049-NP, Rev. 1, D.C. Cook Units 1 and 2 Summary Report for the Fuel Design/Fuel Management Assessments for Reactor Internals Aging Management MRP-227-A Applicability, ML14316A450; Westinghouse Nuclear Safety Advisory Letter Regarding Westinghouse LOCA Mass and Energy Release Calculation Issues, NSAL-11-5 (ML13239A479).

11

Public Citizen acknowledged, mere data, without more, does not rise to the level of a protected trade secret or confidential commercial information. The calculation notes report both the data Westinghouse used to calculate cumulative fatigue usage factors (CUFen) for various IP2 and IP3 components and the results of its analyses. Some of the notes contain summaries of this information presented in table form.

While these tables reveal highly relevant information regarding the condition of components in Entergys aging nuclear facilities, they reveal next to nothing about Westinghouses analytical or manufacturing processes. Yet, Westinghouse has refused to release even these summary tables through the use of redaction. Equally surprising is Westinghouses reluctance to disclose the documents cover pages and sections that discuss background and purpose.

Significantly, the notes contain the results of tests Entergy was required to conduct in order to fulfill commitments under its license renewal applications. Under these circumstances, Westinghouse should not be permitted to keep confidential the information it agreed to produce for Entergys relicensing proceeding. The CUFen values have no intrinsic value for Westinghouse. It is difficult to imagine how disclosure of such information would have any impact at all on Westinghouses competitiveness.

Indeed, even NRC staff have deemed information such as CUFen values suitable for public consumption. For example, a publicly-available 2013 NRC inspection report for IP2 states that: The inspectors noted the CUFen result for the pressurized nozzle was 0.999 at 60 years.

NRC License Renewal Team Inspection Report 05000247/2013010 at 7. ML13263A020. This is the same data taken from the same calculation note that Westinghouse contends has never been disclosed and is proprietary. Similarly, in Entergy Nuclear Vermont Yankee, LLC, 12

(Vermont Yankee Nuclear Power Station), LBP-08-25, 68 N.R.C. 763 (2008), the Board freely discussed Entergys CUFen analyses, comparing various CUFen values presented during the relicensing proceeding. Id. at 818-819. It would defy reason for NRC to shelter from public scrutiny Westinghouses CUFen analyses while at the same time citing to the data contained in those analyses in its publicly-available documents. Finally, while Entergy states that Westinghouse has never publically released a Calc Note, even in redacted form, a quick search of NRCs ADAMS database suggests otherwise. 3 As demonstrated above, the five documents at issue in this motion simply do not rise to the level of being protectable trade secrets or confidential commercial information subject to non-disclosure. To the contrary, those documents address important industry and plant-specific technical issues directly pertinent to NRCs evaluation of Entergys License Renewal Applications for IP2 and IP2. They also identify issues relevant to NRCs assessment of Entergys compliance with its current operating licenses. Shielding such information from public view under the Protective Orders general cloak of secrecy is contrary to the NRCs regulations in favor of public disclosure of such information. 10 C.F.R. § 2.390. Westinghouse should be no more entitled to shield the results of its EAF analyses for IP2 and IP3 components than an industrial facility is entitled to withhold from public disclosure emissions or effluent data submitted to the U.S.E.P.A. (see 40 C.F.R. §§ 2.301 and 2.302). In fact, disclosure of a facilitys otherwise confidential monthly production data has been required where such information was necessary to determine compliance with an applicable Clean Water Act standard. See RSR Corp.

v. Browner, 924 F. Supp. 504 (S.D.N.Y. 1996) (EPA properly determined that monthly 3

The State has identified on ADAMS a number of Westinghouse calculation notes in both un-redacted and redacted form. See Westinghouse CN-MRCDA-08-51, Rev. 1, License Amendment Request 265, Revision to the Reactor Vessel Head Drop Methodology Supplement 1, Point Beach Nuclear Plant, Units 1 and 2 (ML102030116);

Westinghouse CN-RCDA-05-68, Rev. 1, Plastic Analysis of Point Beach Reactor Coolant Piping for Reactor Vessel Head Drop (ML060240364); Westinghouse Assessment of Basis for Aerosol Plugging in AP1000 Containment Leak Paths for Radiological Design Bases Accidents, APP-SSAR-GSC-642-NP (ML073030138).

13

production rate information designated as confidential by facility operator and submitted to the agency as part of semi-annual compliance report was effluent data ineligible for confidential treatment under FOIAs exemption for trade secrets and confidential commercial/financial information). In this case, both the PWROG memo and Entergys EAF data bear on the issue of whether IP2 and IP3 can be safely operated during the period of extended operation, and should therefore be disclosed.

Finally, Westinghouses unwarranted use of the proprietary designation for its documents not only deprives the public of access to information relevant to NRC decision-making, it has also created an unnecessarily burdensome filing process for the parties to this litigation. For example, because of Westinghouses across-the-board designations, the State was required to file its February 13, 2015 Motions for Leave to Amend and March 17, 2015 Replies, which referenced the documents at issue here, in both public/redacted and non-public/un-redacted form.

14

CONCLUSION Westinghouse and Entergy have failed to establish that the documents at issue contain trade secrets or confidential commercial/financial commercial within the scope of the Protective Order or 10 C.F.R § 2.390. The Board should therefore issue an order striking Westinghouses proprietary designations for such documents. In the event that the Board affords Entergy or Westinghouse an opportunity to submit affidavits in support of Westinghouses proprietary claim, the State respectfully reserves it right to file an appropriate motion or a reply.

Executed on April 9, 2015 Signed (electronically) by Lisa S. Kwong Assistant Attorney General Office of the Attorney General of the State of New York The Capitol Albany, New York 12224 (518) 776-2422 Lisa.Kwong@ag.ny.gov 15

10 C.F.R. § 2.323 Certification Pursuant to 10 C.F.R. § 2.323(b) and the Boards July 1, 2010 Scheduling Order (at 8-9),

I certify that I have made a sincere effort to contact counsel for Entergy in this proceeding, to explain to them the factual and legal issues raised in this motion, and to resolve those issues, and I certify that my efforts have been unsuccessful.

Signed (electronically) by Lisa S. Kwong Assistant Attorney General State of New York April 9, 2015 16

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

x In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. April 9, 2015

x DECLARATION OF LISA S. KWONG Pursuant to 28 U.S.C. § 1746, Lisa S. Kwong hereby declares as follows:

1. I serve as an Assistant Attorney General for the State of New York, counsel for petitioner-intervenor State of New York in this proceeding.
2. In early 2015, in preparation for the submission of supplemental contentions, the State initiated informal discussions with Entergy about the public reference to results contained in various Westinghouse authored documents. Entergy responded that Westinghouse did not agree to the disclosure of any results that had not previously been provided to NRC Staff.
3. I submit this declaration and accompanying attachments in support of the State of New Yorks Motion Challenging the Proprietary Designation of Certain Pressurized Water Reactor Owners Group and Westinghouse Documents dated April 9, 2015. The accompanying attachments are discussed in more detail in the States Motion.
4. Attached to this declaration as Attachment 1 is a true and correct copy of the States Notice of Objection to Continued Confidential Treatment of Certain Documents Relating to Contentions NYS-25 and NYS-38/RK-TC-5 dated March 9, 2015. Pursuant to Paragraph D of the Atomic Safety and Licensing Boards 2009 Protective Order, a copy of the Notice of Objection was sent by electronic mail to Entergys counsel on March 9, 2015.
5. Attached to this declaration as Attachment 2 is a true and correct copy of the confidential proprietary document subject to the parties nondisclosure agreement entitled Pressurized Water Reactor Owners Group, BTP 5-3 Industry Issue, Executive Review (October 28, 2014).
6. Attached to this declaration as Attachment 3 is a true and correct copy of the confidential proprietary document subject to the parties nondisclosure agreement entitled Westinghouse Proprietary Report, Class 2, Indian Point Units 2 & 3 Accumulator Nozzle Environmental Fatigue Evaluation, CN-PAFM-09-77 (2010).
7. Attached to this declaration as Attachment 4 is a true and correct copy of the confidential proprietary document subject to the parties nondisclosure agreement entitled Westinghouse Proprietary Report, Class-2, Indian Point Unit 2 and Unit 3 EAF Screening Evaluations, CN-PAFM-12-35, Rev. 1 (2012).
8. Attached to this declaration as Attachment 5 is a true and correct copy of the confidential proprietary document subject to the parties nondisclosure agreement entitled Westinghouse Proprietary Report, Class-2, Indian Point Unit 2 (IP2) and Unit 3 (IP3), Refined EAF Analyses and EAF Screening Evaluations, CN-PAFM-13-32 (2013).
9. Attached to this declaration as Attachment 6 is a true and correct copy of the confidential proprietary document subject to the parties nondisclosure agreement entitled Westinghouse Proprietary Report, Class-2, Indian Point Unit 2 Pressurizer Spray Nozzle Transfer Function Database Development and Environmental Fatigue Evaluations, CN-PAFM-13-40 (2013).
10. Attached to this declaration as Attachment 7 is a true and correct copy of the email correspondence between me and Entergy counsel, P. Bessette and R. Kuyler, reflecting the parties consultations regarding this dispute pursuant to the Protective Order, Paragraph C.

2

11. I declare under penalty of perjury that the foregoing is true and correct.

Executed on April 9, 2015 Signed (electronically) by Lisa S. Kwong Assistant Attorney General Office of the Attorney General of the State of New York The Capitol Albany, New York 12224 (518) 776-2422 Lisa.Kwong@ag.ny.gov 3

Attachments 1 to 7 to the Declaration of Assistant Attorney General Lisa Kwong, Dated April 9, 2015 As Designated by PWOG and Westinghouse Attachments 2 to 6 Contain Confidential Proprietary Information Subject to Nondisclosure Agreement and Attachments 1 and 7 Concern the Parties Discussions about the Documents Designations and Therefore these 7 Documents are Not Attached to the Public and Redacted Version of the April 9, 2015 Kwong Declaration Attachments 1 to 7

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

x In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. April 9, 2015

x CERTIFICATE OF SERVICE I hereby certify that on April 9, 2015, copies public, redacted version of the State of New Yorks motion to withdraw Westinghouse and PWORGs proprietary designation of certain documents were served electronically via the public submission portal of the NRCs Electronic Information Exchange on the following recipients:

Lawrence G. McDade, Chair Kathleen Schroeder, Law Clerk Richard E. Wardwell, Administrative Judge Alana Wase, Law Clerk Michael F. Kennedy, Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 Mailstop 3 F23 Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Kathleen.Schroeder@nrc.gov Lawrence.McDade@nrc.gov Alana.Wase@nrc.gov Richard.Wardwell@nrc.gov Michael.Kennedy@nrc.gov Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 16 G4 Mailstop 3 F23 One White Flint North Two White Flint North 11555 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 ocaamail@nrc.gov 1

Office of the Secretary William B. Glew, Jr., Esq.

Attn: Rulemaking and Adjudications Staff Entergy Nuclear Operations, Inc.

U.S. Nuclear Regulatory Commission 440 Hamilton Avenue Mailstop 3 F23 White Plains, NY 10601 Two White Flint North wglew@emtergy.com 11545 Rockville Pike Rockville, MD 20852-2738 Bobby R. Burchfield, Esq.

hearingdocket@nrc.gov Matthew M. Leland, Esq.

McDermott Will & Emery LLC Sherwin E. Turk, Esq. 600 13th Street, NW David E. Roth, Esq. Washington, DC 20005-3096 Beth N. Mizuno, Esq. bburchfield@mwe.com Brian G. Harris, Esq. mleland@mwe.com Anita Ghosh, Esq.

Office of the General Counsel Emre N. Ilter, Esq.

U.S. Nuclear Regulatory Commission McDermott Will & Emery LLC Mailstop 15 D21 500 North Capitol Street, NW One White Flint North Washington, DC 20001 11555 Rockville Pike eilter@nwe.com Rockville, MD 20852-2738 sherwin.turk@nrc.gov Richard A. Meserve, Esq.

david.roth@nrc.gov Covington & Burling LLP beth.mizuno@nrc.gov 1201 Pennsylvania Avenue, NW brian.harris@nrc.gov Washington, DC 20004-2401 anita.ghosh@nrc.gov rmeserve@cov.com Kathryn M. Sutton, Esq. Elise N. Zoli, Esq.

Paul M. Bessette, Esq. Goodwin Procter, LLP Raphael Kuyler, Esq. Exchange Place Morgan, Lewis & Bockius LLP 53 State Street 1111 Pennsylvania Avenue, NW Boston, MA 02109 Washington, DC 20004 ezoli@goodwinprocter.com ksutton@morganlewis.com pbessette@morganlewis.com Robert D. Snook, Esq.

rkuyler@morganlewis.com Assistant Attorney General Office of the Attorney General Martin J. ONeill, Esq. State of Connecticut Morgan, Lewis & Bockius LLP 55 Elm Street Suite 4000 P.O. Box 120 1000 Louisiana Street Hartford, CT 06141-0120 Houston, TX 77002 robert.snook@ct.gov martin.oneill@morganlewis.com 2

Melissa-Jean Rotini, Esq. Richard Webster, Esq.

Assistant County Attorney Public Justice, P.C.

Office of the Westchester County Attorney Suite 200 Michaelian Office Building 1825 K Street, NW 148 Martine Avenue, 6th Floor Washington, DC 20006 White Plains, NY 10601 rwebster@publicjustice.net MJR1@westchestergov.com Andrew B. Reid, Esq.

Theresa Knickerbocker, Mayor Springer & Steinberg, P.C.

Kevin Hay, Village Administrator 1600 Broadway, Suite 1200 Village of Buchanan Denver, CO 80202 Municipal Building areid@springersteinberg.com 236 Tate Avenue Buchanan, NY 10511-1298 Peter A. Gross Administrator@villageofbuchanan.com Executive Director theresak@villageofbuchanan.com Hudson River Sloop Clearwater, Inc.

724 Wolcott Avenue Daniel Riesel, Esq. Beacon, NY 12508 Thomas F. Wood, Esq. peter@clearwater.org Victoria S. Treanor, Esq.

Sive, Paget & Riesel, P.C. Deborah Brancato, Esq.

460 Park Avenue Riverkeeper, Inc.

New York, NY 10022 20 Secor Road driesel@sprlaw.com Ossining, NY 10562 vtreanor@sprlaw.com dbrancato@riverkeeper.org Michael J. Delaney, Esq.

Director Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 mdelaney@dep.nyc.gov Signed (electronically) by Lisa S. Kwong Assistant Attorney General State of New York (518) 776-2422 Lisa.Kwong@ag.ny.gov Dated at Albany, New York this 9th day of April 2015 3

Retrieved from "https://kanterella.com/w/index.php?title=ML15099A785&oldid=2449153"