ML15201A488

Order (Denying New York Motion to Withdraw Proprietary Designation)

ML15201A488
Person / Time
Site:	Indian Point
Issue date:	07/20/2015
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 28071
Download: ML15201A488 (10)

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) July 20, 2015 ORDER (Denying New York Motion to Withdraw Proprietary Designation)

I. INTRODUCTION 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 The five documents at issue are four Calculation Notes prepared by Westinghouse in connection with the Indian Point license renewal2 and one memorandum prepared by the Pressurized Water Reactors Owners Group (PWROG) addressing technical issues and discussing a preliminary 1 State of New York Motion to Withdraw the Proprietary Designation of Various Pressurized Water Reactor Owners Group and Westinghouse Documents (Apr. 9, 2015).

2 Westinghouse, CN-PAFM-09-77, Indian Point Units 2 & 3 Accumulator Nozzle Environmental Fatigue Evaluation (2010); Westinghouse, CN-PAFM-12-35, Indian Point Unit 2 and Unit 3 EAF Screening Evaluations (2012); Westinghouse, CN-PAFM-13-32, Indian Point Unit 2 (IP2) and Unit 3 (IP3) Refined EAF Analyses and EAF Screening Evaluations (2013); CN-PAFM-13-40, Indian Point Unit 2 Pressurizer Spray Nozzle Transfer Function Database Development and Environmental Fatigue Evaluations (2013) [hereinafter Calculation Notes].

strategy for resolution of a Nuclear Regulatory Commission (NRC) Staff Branch Technical memo.3 Entergy opposed the motion.4 The NRC Staff took no position, but filed a pleading addressing governing legal principles.5 On April 22, 2015, New York sought leave to file a reply,6 which Entergy opposed,7 and which the Board granted.8 This reply was received on May 1, 2015.9 On May 14, 2015, the Board held an oral argument on this question, at which New York, the NRC Staff, Entergy, and Westinghouse were represented. At the conclusion of oral argument, the Board directed Entergy and Westinghouse to submit a joint brief in support of its position that all documents should remain marked as proprietary. On June 4, 2015, Entergy and Westinghouse submitted their joint brief10 and on June 18, 2015, New York State filed their reply brief.11 On June 25, 2015, the NRC Staff filed its reply brief.12 3 PWROG, BTP 5-3 Industry Issue, Executive Review (Oct. 28, 2014) [hereinafter PWROG Memo].

4 Entergys Answer Opposing New York States Motion to Strike Proprietary Designations (Apr.

20, 2015).

5 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).

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

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

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

(unpublished).

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

10 Joint Brief of Entergy and Westinghouse Regarding Proprietary Documents (June 4, 2015)

[hereinafter Joint Brief].

11 State Of New York Reply To Joint Brief Of Entergy And Westinghouse Regarding Proprietary Documents (June 18, 2015) [hereinafter New York Reply Brief].

12 NRC Staffs Response to Joint Brief of Entergy and Westinghouse Regarding Proprietary Documents (June 25, 2015) [hereinafter NRC Staff Reply Brief].

II. LEGAL STANDARDS FOR PROPRIETARY INFORMATION Pursuant to 10 C.F.R. § 2.390(a), final NRC records and documents, including . . .

correspondence to and from the NRC regarding the issuance . . . of a license . . . shall not, in the absence of an NRC determination of a compelling reason for nondisclosure after a balancing of the interests of the person or agency urging nondisclosure and the public interest in disclosure, be exempt from disclosure, except for matters that fall within one of the nine specified categories set forth in § 2.390(a)(1)-(9). Among the matters to be withheld from disclosure are confidential proprietary documents - defined in § 2.390(a)(4) as [t]rade secrets and commercial or financial information obtained from a person and privileged or confidential.

Under 10 C.F.R. § 2.390(b)(3), the Commission will determine whether information constitutes a trade secret or confidential or privileged commercial or financial information under

§ 2.390(b)(3)(i), considering:

(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.

Finally, the Commission has stated that the regulations in 10 C.F.R. § 2.390(b)(4) embody the standards of FOIA Exemption 4.13 Because disclosure of information in NRC files

[is] the rule, and nondisclosure the exception, 14 the Protective Order sets out that the party seeking to restrict the disclosure of relevant information retains the burden of establishing that the information is confidential business information.15 III. THE PARTIES ARGUMENTS In their joint brief, Entergy, Westinghouse, and the PWROG asserted that all of the documents in question are confidential commercial information within the meaning of 10 C.F.R.

§ 2.390(b)(4). They relied on the FOIA Exemption 4 test adopted in Critical Mass Energy Project v. NRC, for the proposition that if confidential commercial information is submitted to the government voluntarily, it will be protected categorically under Exemption 4 so long as it is the kind of information that would customarily not be released to the public by the person from whom it was obtained.16 The joint brief asserted that Entergy voluntarily submitted the documents to New York State (not the NRC) under the rules of procedure applicable to this proceeding, and made the Calculation Notes available for NRC Staff inspection or review, and thus, argued that these documents fall under FOIA Exemption 4.17 In its Reply Brief, the Staff asserted that four of these documents (i.e., the Calculation Notes) should be withheld from public disclosure; but that Westinghouse did not sufficiently identify the portions of the PWROG memorandum that contain confidential, proprietary 13 See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-01, 61 NRC 160, 163 (2005) (citing 37 Fed. Reg. 15,127, 15,127 (July 28, 1972)).

14 Westinghouse Electric Corp. v. U.S. Nuclear Regulatory Commn, 555 F.2d 82, 87 (3d Cir.

1977).

15 Licensing Board Order (Protective Order) (Sept. 4, 2009) at ¶ D (unpublished).

16 Joint Brief at 6 (citing Critical Mass Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir.

1992) (en banc), cert. denied, 507 U.S. 984 (1993)).

17 Id.

information, the disclosure of which could adversely affect the PWROGs or its members competitive or financial position.18 The Staff proposed that the Board should require Westinghouse to further specify the portions of the PWROG Memorandum that should be withheld as confidential, proprietary information.19 In its reply brief, New York renewed its objection to Westinghouses participation in the proceeding as untimely20 and disputed whether the information fell under the legal standard advanced by Westinghouse and Entergy from the Critical Mass decision.21 New York argued that substantial competitive injury would not result from disclosure of the calculation notes as Westinghouse has already publicized its methodology for performing environmentally-assisted fatigue screening analyses in industry publications and presentations.22 New York also asserted that the publics right to know the basis for NRC decision making outweighs any potential competitive harm to Westinghouse and that the CUFen values are particularly relevant as they 1) reveal when crack initiation is assumed to have begun in a structural component; and 18 NRC Staff Reply Brief at 1-2.

19 Id.

20 New York asserts that Westinghouses Motion to Specially Appear was filed on May 5, 2015 despite Westinghouse having received notice of States motion on April 9, 2015, in contravention of 10 C.F.R. § 2.323(a)(2). Id. at 13 (citing to Joint Industry Brief at 2 n. 4; Tr. at 4644).

21 New York Reply Brief at 14.

22 Id. at 17-18 (In that paper, Mr. Gray and his co-author, Christopher Kupper, describe Westinghouses methodology for performing environmentally-assisted fatigue screening analyses in support of license renewal applications. A section of the paper entitled Method Overview provides a summary of the process elements of the overall screening method. Each of these process elements is explored in greater depth in subsequent sections entitled Data Collection, Transient Sections, Screening Fen Application, Stress Basis Comparison, Leading Location Identification, Application of Methodology, and Phase 2 EAF Screening.)(citations omitted); see also New York Reply Brief, attach. 1, Christopher Kupper and Mark Gray, License Renewal Environmental Fatigue Screening Application, Proceedings of the ASME 2014 Pressure Vessels and Piping Conference (July 2014), available at http://proceedings.asmedigitalcollection.asme.org/proceeding.aspx?articleID=1937745.

2) form the basis for NRC Staffs conclusion that Entergys time-limited aging analyses were sufficient and license renewal appropriate.23 Finally, New York replied that the statements in the PWROG statement are not commercial, that the memo contains publically available information, and that its disclosure would not cause harm.24 IV. BOARD RULING Based on the information provided, the financial or competitive harm that would flow from the release of the PWROG memo is marginal at best but, at this time, we will not require Westinghouse and Entergy to submit further briefing on this issue, as the presentation of more detail regarding the document would not be a useful expenditure of resources.

The PWROG Memo was not prepared by a party, it is not clear who the author was nor is it clear what was the basis for the authors opinions. In the Boards view, this document has no probative value. While the Board may accept hearsay, this memo is not reliable hearsay.

While the document was properly discoverable, as Entergy was required to produce in mandatory disclosures not only admissible evidence but also documents such as the PWROG memo that could lead to admissible evidence, this memo would not be received in evidence.

Here, New York has access to the document and the opportunity to present it to their experts, who can agree or disagree with the opinions stated therein. If presented, the probative evidence would be the experts opinions supported by their qualifications and reasoning.

The Board finds that there would be no benefit to this proceeding, or to the public, by the public disclosure of the PWROG memo. While the effort to establish this document as trade secret or confidential commercial information is weak, we see no public interest in its release.

The Board finds that the Calculation Notes contain confidential commercial information, which is entitled to protection under 10 C.F.R. § 2.390(a)(4). The Calculation Notes documents 23 New York Reply Brief at 20-22.

24 Id. at 24-30.

are of a type that is maintained in confidence by the company and contain information which, if released, likely would lead to substantial competitive harm to Westinghouse. Specifically, Westinghouse has established that they have a substantial commercial interest in the market for engineering services for nuclear plants, including ASME Code fatigue screening evaluations, and that the Calculation Notes contain data developed by Westinghouse in conducting ASME Code Section III evaluations.25 The Board finds that the information in the Calculation Notes, if taken piece-by-piece or together, would enable a competitor to undercut Westinghouses market position. Moreover, New York States claims questioning the proprietary nature of the information were general in nature and did not suggest that Westinghouses sworn statements were inaccurate.

Thus, the Board holds that the documents in question contain confidential and trade secret information within the purview of 10 C.F.R. § 2.390(a)(4), and therefore should remain non-public subject to the Protective Order. New Yorks Motion to Withdraw the Proprietary Designation for Westinghouse documents is denied.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland July 20, 2015 25 Joint Brief at 10-13.

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 (Denying New York Motion to Withdraw Proprietary Designation) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission Edward L. Williamson, Esq.

Office of Commission Appellate Adjudication Beth N. Mizuno, Esq.

Mail Stop O-7H4M David E. Roth, Esq.

Washington, DC 20555-0001 Sherwin E. Turk, Esq.

ocaamail@nrc.gov Brian Harris, Esq.

Mary B. Spencer, Esq.

U.S. Nuclear Regulatory Commission Anita Ghosh, Esq.

Office of the Secretary of the Commission Christina England, Esq.

Mail Stop O-16C1 Catherine E. Kanatas, Esq.

Washington, DC 20555-0001 Joseph Lindell, Esq.

hearingdocket@nrc.gov John Tibbetts, Paralegal U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of the General Counsel Atomic Safety and Licensing Board Panel Mail Stop O-15D21 Mail Stop T-3F23 Washington, DC 20555-0001 Washington, DC 20555-0001 sherwin.turk@nrc.gov; edward.williamson@nrc.gov Lawrence G. McDade, Chair beth.mizuno@nrc.gov; brian.harris.@nrc.gov Administrative Judge david.roth@nrc.gov; mary.spencer@nrc.gov lawrence.mcdade@nrc.gov anita.ghosh@nrc.gov; christina.england@nrc.gov; Richard E. Wardwell catherine.kanatas@nrc.gov; Administrative Judge joseph.lindell@nrc.gov; richard.wardwell@nrc.gov john.tibbetts@nrc.gov Michael F. Kennedy OGC Mail Center Administrative Judge OGCMailCenter@nrc.gov michael.kennedy@nrc.gov William B. Glew, Jr.

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

Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying New York Motion to Withdraw Proprietary Designation)

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 (Denying New York Motion to Withdraw Proprietary Designation)

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 David A. Repka, Esq. Kevin Hay, Village Administrator Carlos L. Sisco, Paralegal Village of Buchanan Winston & Strawn Municipal Building 1701 K Street NW 236 Tate Avenue Washington, DC 20006 Buchanan, NY 10511-1298 drepka@winston.com smurray@villageofbuchanan.com CSisco@winston.com administrator@villageofbuchanan.com

[Original signed by Clara Sola ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 20th day of July, 2015 3