ML15125A239

Order (Setting Oral Argument on Proprietary Designation of Documents)

ML15125A239
Person / Time
Site:	Indian Point
Issue date:	05/05/2015
From:	Lawrence Mcdade Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 27697
Download: ML15125A239 (7)

Text

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

Lawrence G. McDade, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) May 5, 2015 ORDER (Setting Oral Argument on Proprietary Designation of Documents)

On April 9, 2015, the State of New York (New York) filed a motion to withdraw the proprietary designation and compel the public disclosure of five documents produced by Entergy Nuclear Operations, Inc. (Entergy) as part of its mandatory disclosures.1 Entergy opposed the motion.2 The NRC Staff took no position, but filed an answer on the governing legal principles.3 On April 22, 2015, New York sought leave to file a reply,4 which Entergy 1

State of New York Motion to Withdraw the Proprietary Designation of Various Pressurized Water Reactor Owners Group and Westinghouse Documents (Apr. 9, 2015). The documents include a memorandum prepared by the Pressurized Water Reactor Owners Group and four calculation notes prepared by Westinghouse Electric Company LLC (Westinghouse), Entergys vendor. Id. at 1.

2 Entergys Answer Opposing New York States Motion to Strike Proprietary Designations (Apr. 20, 2015)

(hereinafter Entergy Answer).

3 NRC Staffs Answer to State of New York Motion to Withdraw the Proprietary Designation of Various Pressurized Water Reactor Owners Group and Westinghouse Documents (Apr. 20, 2015).

4 State of New York Motion for Leave to File Reply in Support of Motion to Withdraw Proprietary Designations (Apr. 22, 2015).

opposed,5 and which the Board granted.6 New Yorks reply was received on May 1, 2015.7 Despite these filings, the Board lacks information necessary to rule on the propriety of the proprietary designations, and it therefore schedules oral argument.

Pursuant to the Protective Order, The Initial Holder shall have the burden of showing that the applicable information in the proprietary document is a trade secret and/or commercial or financial information that is privileged or confidential so that the Board can determine, as applicable, whether, on balance, protection of the document from public disclosure is warranted under 10 C.F.R. § 2.390.8 As such, the burden is on Entergy to demonstrate that the five documentsin their entiretyare entitled to protection. NRC regulations at 10 C.F.R. § 2.390(b)(4)(i)-(v) specifies that the Board, in making a determination that a document is proprietary, due to trade secrets and commercial or financial information, is to consider:

(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 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.

It is about this fifth consideration that the Board lacks information because Entergys arguments are merely conclusory. Entergy asserts that public disclosure of the documents would cause substantial harm as it would: 1) reveal strategic deliberations, 2) enhance competitors capacity to offer similar services with less expense and/or obviate a clients need 5

Entergys Answer Opposing New York States Motion for Leave to File a Reply to Entergys April 20, 2015 Answer (Apr. 23, 2015).

6 Licensing Board Order (Granting New Yorks Motion for Leave to File a Reply) (Apr. 24, 2015)

(unpublished).

7 State of New York Reply in Support of Motion to Withdraw Proprietary Designations (May 1, 2015).

8 Protective Order (Sept. 4, 2009) at ¶ D (unpublished).

for their service, and 3) afford competitors insights into the WESTEMS software code and Westinghouses methodology.9 However, Entergy offers no explanation as to how disclosure of these documentsmany pages of which contain summary results, void of methodology, complex formula, or inputswould result in such harm.

Nonetheless, the Board has a duty to protect documents whose disclosure would cause substantial harm to the competitive position of the owner of the information, PWROG or Westinghouse. As such, prior to acting upon New Yorks motion, the Board will convene a telephonic oral argument during the week of May 11, 2015.

Parties should be prepared to discuss:

1) section by section, the contents of the documents in dispute, and specifically how competitive injury could follow, and the likelihood thereof; and

2) the public interest, or lack thereof, in disclosure of the information.

Participants in this proceeding who have filed briefs on this matter shall contact the Boards law clerk, Alana Wase (Alana.wase@nrc.gov) no later than noon, Thursday, May 7, 2015, notifying her of the dates and times when they are unavailable to participate. As the substantial harm alluded to would fundamentally impact Westinghouse, which, based on earlier filings is acting on behalf of PWROG, counsel for Westinghouse may also participate. Entergy 9

Entergy Answer, attach. 1, Aff. of W. Anthony Nowinowski at 4 (Apr. 20, 2015) (stating that public disclosure of the PWROG memo 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); Entergy Answer, attach. 2, Aff. of James A. Gresham at 4 (Apr. 16, 2015) (Public 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 evaluation justifications and licensing defense services for commercial power reactors without commensurate expenses. Also, public disclosure of the information would enable others to use the information to meet NRC requirements for licensing documentation without purchasing the right to use the information.); Entergy Answer, attach. 3, Decl. of Mark A. Gray ¶¶ 7(a)-(d) (Apr. 20, 2015) (stating that public disclosure of calculation notes CN-PAFM-13-40 and CN-PAFM-09-77 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 and disclosure of calculation notes CN-PAFM-12-35 and CN-PAFM-13-32 would provide a competitor with insights into how this methodology was derived and is utilized by Westinghouse).

should notify Westinghouse of this opportunity and the need to provide information relating to its counsels availability. Once the Board selects a date and time for the argument a follow-up Notice to this Order will be issued.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland May 5, 2015

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

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR

) and 50-286-LR (Indian Point Nuclear Generating, )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Setting Oral Argument on Proprietary Designation of Documents) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Edward L. Williamson, Esq.

Mail Stop O-7H4M Beth N. Mizuno, Esq.

Washington, DC 20555-0001 David E. Roth, Esq.

ocaamail@nrc.gov Sherwin E. Turk, Esq.

Brian Harris, Esq.

U.S. Nuclear Regulatory Commission Mary B. Spencer, Esq.

Office of the Secretary of the Commission Anita Ghosh, Esq.

Mail Stop O-16C1 Christina England, Esq.

Washington, DC 20555-0001 Catherine E. Kanatas, Esq.

hearingdocket@nrc.gov Joseph Lindell, Esq.

John Tibbetts, Paralegal 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 sherwin.turk@nrc.gov; Lawrence G. McDade, Chair edward.williamson@nrc.gov Administrative Judge beth.mizuno@nrc.gov; brian.harris.@nrc.gov lawrence.mcdade@nrc.gov david.roth@nrc.gov; mary.spencer@nrc.gov anita.ghosh@nrc.gov; Richard E. Wardwell christina.england@nrc.gov; Administrative Judge catherine.kanatas@nrc.gov; richard.wardwell@nrc.gov joseph.lindell@nrc.gov; john.tibbetts@nrc.gov Michael F. Kennedy Administrative Judge OGC Mail Center michael.kennedy@nrc.gov OGCMailCenter@nrc.gov Alana Wase, Law Clerk William B. Glew, Jr.

alana.wase@nrc.gov Organization: Entergy 440 Hamilton Avenue, White Plains, NY 10601 Kathleen E. Schroeder, Law Clerk wglew@entergy.com Kathleen.Schroeder@nrc.gov

Docket Nos. 50-247-LR and 50-286-LR ORDER (Setting Oral Argument on Proprietary Designation of Documents)

Elise N. Zoli, Esq. Melissa-Jean Rotini, Esq.

Goodwin Proctor, LLP Assistant County Attorney Exchange Place, 53 State Street Office of Robert F. Meehan, Boston, MA 02109 Westchester County Attorney ezoli@goodwinprocter.com 148 Martine Avenue, 6th Floor White Plains, NY 10601 mjr1@westchestergov.com Daniel Riesel, Esq.

Victoria Shiah Treanor, Esq. Bobby Burchfield, Esq.

Adam Stolorow, Esq. Matthew Leland, Esq.

Natoya Duncan, Paralegal Emre Ilter, Esq.

Counsel for Town of Cortlandt McDermott, Will and Emery LLP Sive, Paget & Riesel, P.C. 500 North Capitol Street NW 460 Park Avenue Washington, DC 20001 New York, NY 10022 bburchfield@mwe.com driesel@sprlaw.com; vtreanor@sprlaw.com mleland@mwe.com astolorow@sprlaw.com; nduncan@sprlaw.com eilter@mwe.com Kathryn M. Sutton, Esq. Matthew W. Swinehart, Esq.

Paul M. Bessette, Esq. Covington & Burling LLP Martin J. ONeill, Esq. 1201 Pennsylvania Avenue, NW Raphael Kuyler, Esq. Washington, DC 20004 Brooke McGlinn, Esq. mswinehart@cov.com Grant Eskelsen, Esq.

Ryan Lighty, Esq. Edward F. McTiernan, Esq.

Lesa G. Williams-Richardson, Legal Secretary New York State Department Doris Calhoun, Legal Secretary of Environmental Conservation Mary Freeze, Legal Secretary Office of General Counsel Morgan, Lewis & Bockius, LLP 625 Broadway 1111 Pennsylvania Avenue, NW 14th Floor Washington, DC 20004 Albany, NY 12233-1500 ksutton@morganlewis.com efmctier@gw.dec.state.ny.us martin.oneill@morganlewis.com rkuyler@morganlewis.com; Manna Jo Greene, Environmental Director lescher@morganlewis.com Steven C. Filler bmcglinn@morganlewis.com Peter A. Gross sraimo@morganlewis.com Hudson River Sloop Clearwater, Inc.

geskelsen@morganlewis.com 724 Wolcott Ave.

rlighty@morganlewis.com Beacon, NY 12508 lrichardson@morganlewis.com mannajo@clearwater.org; dcalhoun@morganlewis.com stephenfiller@gmail.com; mfreeze@morganlewis.com peter@clearwater.org Andrew Reid, Esq.

Deborah Brancato, Esq. Organization: Hudson River Sloop Ramona Cearley, Secretary Clearwater, Inc.

Riverkeeper, Inc. Springer & Steinberg, P.C.

20 Secor Road 1600 Broadway, Suite 1200 Ossining, NY 10562 Denver, CO 80202 dbrancato@riverkeeper.org lawyerreid@gmail.com rcearley@riverkeeper.org 2

Docket Nos. 50-247-LR and 50-286-LR ORDER (Setting Oral Argument on Proprietary Designation of Documents)

Richard Webster, Esq. John J. Sipos, Esq.

Public Justice, P.C. Lisa S. Kwong, Esq.

For Hudson River Sloop Clearwater, Inc. Brian Lusignan, Esq.

1825 K Street, NW, Suite 200 Assistant Attorneys General Washington, D.C. 20006 Teresa Manzi, Legal Assistant rwebster@publicjustice.net Office of the Attorney General of the State of New York The Capitol, State Street Michael J. Delaney, Esq. Albany, New York 12224 Director, Energy Regulatory Affairs john.sipos@ag.ny.gov NYC Department of Environmental Protection lisa.kwong@ag.ny.gov 59-17 Junction Boulevard brian.lusignan@ag.ny.gov Flushing, NY 11373 teresa.manzi@ag.ny.gov mdelaney@dep.nyc.gov Kathryn M. DeLuca, Esq.

Robert D. Snook, Esq. Laura Heslin, Esq.

Assistant Attorney General Assistant Attorneys General Office of the Attorney General Office of the Attorney General State of Connecticut of the State of New York 55 Elm Street 120 Broadway, 26th Floor P.O. Box 120 New York, New York 10271 Hartford, CT 06141-0120 kathryn.deluca@ag.ny.gov robert.snook@po.state.ct.us laura.heslin@ag.ny.gov Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 smurray@villageofbuchanan.com administrator@villageofbuchanan.com

[Original signed by Brian Newell ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 5th day of April, 2015 3