ML15112A961
| ML15112A961 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 04/22/2015 |
| From: | Lusignan B State of NY, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| Shared Package | |
| ML15112A960 | List: |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 27542 | |
| Download: ML15112A961 (13) | |
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, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. April 22, 2015
x STATE OF NEW YORK MOTION FOR LEAVE TO FILE REPLY IN SUPPORT OF MOTION TO WITHDRAW PROPRIETARY DESIGNATIONS Office of the Attorney General for the State of New York The Capitol Albany, New York 12224
The State of New York respectfully requests leave from the Atomic Safety and Licensing Board (the Board) to file a reply to Entergys Answer Opposing New York States Motion to Strike Proprietary Designations (Entergys Answer), filed April 20, 2015. Entergys Answer opposed the States Motion to Withdraw the Proprietary Designation of Various Pressurized Water Reactor Owners Group and Westinghouse Documents (NYS Motion), filed on April 9, 2015. The States Motion seeks to strike the proprietary designation of five specific documents (collectively, the documents): (1) a memorandum entitled BTP 5-3 Industry Issue: Executive Review (the BTP 5-3 Memo) created by the Pressurized Water Reactor Owners Group (PWROG); and (2) four calculation notes (the calculation notes) prepared by Westinghouse Electric Company LLC (Westinghouse). Good cause exists to permit the States reply because, as described more fully below, Entergys Answer contains new arguments and supporting affidavits that PWROG and Westinghouse did not disclose during consultation and which the State could not have reasonably anticipated when it made its initial motion. Accordingly, a reply is appropriate under 10 C.F.R. § 2.323(c) and the Boards July 1, 2010 Scheduling Order.
The State has consulted with counsel for Entergy, NRC Staff, Riverkeeper and Clearwater regarding this motion for leave. Riverkeeper and Clearwater support the motion for leave. Entergy and NRC Staff oppose the motion for leave, on the grounds that the State has not met the legal standard to justify a reply and could reasonably have anticipated the arguments raised in Entergys Answer.
LEGAL STANDARDS FOR REPLY Under 10 C.F.R. § 2.323(c), a moving party has no right to reply, except as permitted by the Secretary, the Assistant Secretary, or the presiding officer. Permission may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not 2
reasonably have anticipated the arguments to which it seeks leave to reply. Under the Boards July 1, 2010 Scheduling Order, [a] motion to file a reply must demonstrate good cause for permitting the reply and must indicate whether the request is opposed or supported by the other participants in the proceeding and, if opposed, to succinctly describe the grounds stated for such opposition. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), Scheduling Order at 7 (July 1, 2010) (unpublished).
GOOD CAUSE AND COMPELLING CIRCUMSTANCES JUSTIFY THE STATES MOTION FOR LEAVE TO REPLY As described in the NYS Motion and evidenced by the e-mail chain submitted as attachment 7 to the NYS Motion, neither Entergy, Westinghouse, or PWROG (collectively, the companies) offered a specific justification for the continued designation of the subject documents as proprietary during the consultation period preceding the filing of the States Motion. NYS Motion, at 5-6 (April 9, 2015); March 9 to 30, 2015 E-Mail Thread Between L. Kwong and R.
Kuyler, Attachment 7 to NYS Motion (E-Mail Thread). The State offered the companies an opportunity to redact or partially withhold the subject documents, and - in an effort to avoid litigation and without prejudice to future requests for the full documents - tailored its request for disclosure to particular portions of the subject documents which the State considered particularly relevant to this proceeding. Nonetheless, the companies stood by their blanket assertion of proprietary status for every word of all five documents. Id. Notably, during consultation the companies never even claimed that disclosure of the documents would cause competitive harm.
Id. at 7; see also E-Mail Thread, Attachment 7 to NYS Motion. Only after the State prepared and submitted its motion to strike the proprietary designations did Entergy obtain affidavits from Westinghouse and PWROG employees describing the basis for their designation of the documents as proprietary. See Entergys Answer, at 8 (In response to the Motion . . . authorized 3
PWROG and Westinghouse officials prepared affidavits that address, with specificity, the considerations listed in 10 C.F.R. § 2.390(b)(4)). Accordingly, the State could not have reasonably anticipated the arguments raised in Entergys Answer that rely on these newly created Westinghouse and PWROG affidavits.
Specifically, the State seeks leave to reply to the following new arguments presented in support of Entergys Answer:
- 1. Nowinowski Affidavit: The Affidavit of W. Anthony Nowinowski, a manager for PWROG, sets forth various arguments in support of the proprietary designation of PWROGs BTP 5-3 Memo that the State could not have reasonably anticipated. See Nowinnowski Affidavit (April 20, 2015), Attachment 1 to Entergys Answer. Mr. Nowinowski describes a system allegedly used by PWROG to determine whether information should be held in confidence, as well as the policy reasons supposedly underlying that system. Nowinowski Affid. ¶3(ii), (iii). Additionally, Mr. Nowinowski alleges the information contained in the BTP 5-3 Memo has substantial commercial value because (1) PWROG and one or more of its individual members plan to employ the information used in this document to prepare a response to the U.S. NRC Branch Technical Position 5-3 for the purpose of supporting reactor internal aging management, and (2) the information requested to be withheld reveals the preliminary, strategic deliberations of the PWROG and one or more of its individual members. Id. ¶3(vi).
Moreover, Mr. Nowinowski claims that [p]ublic disclosure of this proprietary information is likely to cause substantial harm to the competitive position of PWROG and one or more of its individual members because it provides insight into the PWROGs and its individual members preliminary, strategic deliberations related to responding to the issues surrounding U.S. NRC Branch Technical Position 5-3. Id. ¶3.
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Prior to the filing of Entergys Answer, the State had not been provided with any specific arguments underlying PWROGs proprietary designation of the BTP 5-3 Memo. See NYS Motion, at 7; E-Mail Thread, Attachment 7 to NYS Motion (claiming broadly that the BTP 5-3 Memo is proprietary because it contains sensitive and confidential commercial information belonging to the members of the PWROG, of the type that the PWROG does not customarily release to the public). The Nowinowski affidavit sets forth, for the first time, PWROGs alleged system for determining whether information is proprietary as well as the basis for PWROGs claim that disclosure of the information in the BTP 5-3 memo would result in competitive harm. The State could not have reasonably anticipated the details of PWROGs system for classifying information as proprietary or the specific justifications set forth in the Nowinowski affidavit, and good cause therefore exists to permit the State to reply to this information.
- 2. Gresham Affidavit: The Affidavit of James A. Gresham, Manager of Regulatory Compliance at Westinghouse, sets forth various arguments in support of the proprietary designation of Westinghouses four Calculation Notes that the State could not have reasonably anticipated. Gresham Affidavit (April 16, 2015), Attachment 2 to Entergys Answer. Among other things, Mr. Gresham describes Westinghouses alleged system for determining whether information is proprietary. Id. ¶4(ii). He also alleges that one piece of information contained in a calculation note was made public without Westinghouses prior knowledge or consent. Id.
¶4(v). Mr. Gresham alleges that the calculation notes, in their entirety, have substantial commercial value because (1) Westinghouse plans to employ the method(s) used in each of these documents to sell services to its customers for the purpose of supporting reactor internals aging management and (2) [t]he information requested to be withheld reveals the 5
distinguishing aspects of a methodology(ies) which was developed by Westinghouse. Id.
¶4(vi)(a),(b). Additionally, Mr. Gresham claims that (1) [p]ublic disclosure of this proprietary information is likely to cause substantial harm to the competitive position of Westinghouse because it would enhance the ability of competitors to provide similar technical justifications and licensing defense services for commercial power reactors without commensurate expenses and (2) public disclosure of the information would enable other to use the information to meet NRC requirements for licensing documentation without purchasing the right to use the information.
Id. ¶4(vi).
Once again, the State had no inkling of the information and arguments set forth in the Gresham Affidavit prior to the filing of Entergys Answer. Indeed, Entergy had never before submitted specific claims relating to Westinghouses internal procedures for determining whether information is proprietary, the alleged commercial value of the calculation notes, or the supposed competitive harm that would result from the disclosure of the information in the calculation notes. NYS Motion, at 6-7; E-Mail Thread, Attachment 7 to NYS Motion (noting Westinghouses position that the calculation notes are proprietary simply because Westinghouse has never publically released a Calc Note). Additionally, the revelation that the public disclosure of one figure from a calculation note in an NRC report was made without Westinghouses notice or consent is entirely new. The State could not have reasonably anticipated the information and arguments set out in the Gresham Affidavit, and good cause exists to permit the State to submit a reply on these issues.
- 3. Gray Declaration: The declaration of Mark A. Gray, a Principal Engineer for Westinghouse, also contains arguments in support of the proprietary designation of the calculation notes that the State could not have reasonably anticipated. Declaration of Mark A.
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Gray (April 20, 2015), Attachment 3 to Entergys Answer. Mr. Gray describes various analyses contained in the calculation notes, which he alleges constitute proprietary information, and seeks to establish how disclosure of that information would cause competitive harm. Id. ¶7. Generally, he contends that public disclosure of any part of the calculation notes would provide a competitor with insights into how the methodology allegedly contained in each calculation note were derived and are utilized by Westinghouse. Id. He also claims that disclosure of one calculation note (CN-PAFM-13-40) would provide a competitor with insights into the specific functioning of the WESTEMS software code and the specific considerations used by Westinghouse to determine how the WESTEMS software code is applied on a plant-specific basis[.] Id. ¶7(d).
As previously noted, Entergys Answer, filed April 20, marked the first occasion that any specific claims of competitive harm or commercial value were made with respect to the calculation notes. See NYS Motion, at 6-7; E-Mail Thread, Attachment 7 to NYS Motion.
Accordingly, the State could not have reasonably anticipated the specific claims of competitive harm set forth in the Gray Declaration. Therefore, good cause exists to permit the State to reply to this issue.
- 4. Entergys Answer: Entergys Answer also contains arguments in opposition to the States Motion that the State could not have reasonably anticipated. First, to the extent that Entergys Answer relies on the two Affidavits and one Declaration described above, the State could not have reasonably anticipated these arguments for the reasons previously set forth above.
Second, Entergys argument that the State contests proper application of the Protective Order appears to misconstrue the States position and could not have been reasonably anticipated by the State. Entergys Answer, at 4. Third, Entergys suggestion that it is somehow the States burden 7
to prove that the subject documents are non-proprietary - contrary to the NRCs governing regulations and the Boards Protective Order - is a fundamental misreading of the governing law, and could not have been reasonably anticipated by the State. See, e.g., Entergys Answer, at
- 2. Accordingly, good cause exists to permit the State to reply to Entergys Answer.
PERMITTING THE STATE TO SUBMIT A REPLY WOULD NOT DELAY THIS PROCEEDING Although not specifically a requirement for granting a motion for leave to file a reply, the Board has previously considered relevant whether granting permission to file a reply would delay the progress or resolution of the proceeding. See Entergy Nuclear Operations, Inc.
(Indian Point, Units 2 and 3), Order (Granting New Yorks Motion) (Jan. 14, 2014)
(unpublished). Here, granting the State permission to submit a reply would not impact the various deadlines set forth in the Boards most recent scheduling order, which would culminate in a November 2015 hearing on the Track 2 contentions. See Entergy Nuclear Operations, Inc.
(Indian Point, Units 2 and 3), Revised Scheduling Order (Dec. 9, 2014) (unpublished). In fact, by fully considering the States arguments with respect to the proprietary designation of the subject documents, the Board ultimately could streamline the Track 2 hearing procedures and reduce the administrative burden on the parties and the Board by revoking an unwarranted and unsupported proprietary designation.
CONCLUSION For the reasons set forth above, the State respectfully submits that good cause and compelling circumstances exist for the Board to permit the State to file a Reply in Support of Its Motion to Withdraw Proprietary Designations. If the Board grants this motion, the State requests seven (7) days from the date of the Boards order to submit a reply.
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Respectfully submitted, Signed (electronically) by Brian Lusignan Assistant Attorney General Office of the Attorney General of the State of New York The Capitol Albany, New York 12224 (518) 776-2399 Brian.Lusignan@ag.ny.gov Dated: April 22, 2015 9
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 the other parties 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 Brian Lusignan Assistant Attorney General State of New York April 22, 2015
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 22, 2015
x CERTIFICATE OF SERVICE I hereby certify that on April 22, 2015, copies of the State of New Yorks Motion for Leave to File Reply in Support of Motion to Withdraw Proprietary Designation were served electronically via the NRCs Electronic Information Exchange on the following recipients:
Lawrence G. McDade, Chair Richard E. Wardwell, Administrative Judge Kathleen Schroeder, Law Clerk Michael F. Kennedy, Administrative Judge Alana Wase, Law Clerk 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 Lawrence.McDade@nrc.gov Kathleen.Schroeder@nrc.gov Richard.Wardwell@nrc.gov Alana.Wase@nrc.gov Michael.Kennedy@nrc.gov Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 Mailstop 16 G4 Two White Flint North One White Flint North 11545 Rockville Pike 11555 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 Mark Churchill, Esq.
hearingdocket@nrc.gov Matthew M. Leland, Esq.
brian.newell@nrc.gov McDermott Will & Emery LLC 600 13th Street, NW Sherwin E. Turk, Esq. Washington, DC 20005-3096 David E. Roth, Esq. mchurchill@mwe.com Beth N. Mizuno, Esq. mleland@mwe.com Brian G. Harris, Esq.
Anita Ghosh, Esq. Emre N. Ilter, Esq.
Office of the General Counsel McDermott Will & Emery LLC U.S. Nuclear Regulatory Commission 500 North Capitol Street, NW Mailstop 15 D21 Washington, DC 20001 One White Flint North eilter@nwe.com 11555 Rockville Pike Rockville, MD 20852-2738 Richard A. Meserve, Esq.
sherwin.turk@nrc.gov Covington & Burling LLP david.roth@nrc.gov 1201 Pennsylvania Avenue, NW beth.mizuno@nrc.gov Washington, DC 20004-2401 brian.harris@nrc.gov rmeserve@cov.com anita.ghosh@nrc.gov Elise N. Zoli, Esq.
Kathryn M. Sutton, Esq. Goodwin Procter, LLP Paul M. Bessette, Esq. Exchange Place Raphael Kuyler, Esq. 53 State Street Morgan, Lewis & Bockius LLP Boston, MA 02109 1111 Pennsylvania Avenue, NW ezoli@goodwinprocter.com Washington, DC 20004 ksutton@morganlewis.com Robert D. Snook, Esq.
pbessette@morganlewis.com Assistant Attorney General rkuyler@morganlewis.com Office of the Attorney General State of Connecticut Martin J. ONeill, Esq. 55 Elm Street Morgan, Lewis & Bockius LLP P.O. Box 120 Suite 4000 Hartford, CT 06141-0120 1000 Louisiana Street robert.snook@ct.gov Houston, TX 77002 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 Brian Lusignan Assistant Attorney General State of New York (518) 776-2399 Brian.Lusignan@ag.ny.gov Dated at Albany, New York this 22nd day of April 2015 3