ML15315A024

Westinghouse'S Supplemental Response Re Westinghouse'S Appearance and Proprietary Documents

ML15315A024
Person / Time
Site:	Indian Point
Issue date:	11/11/2015
From:	Coldren R, Cowan B, Repka D, Spadacene J Westinghouse, Winston & Strawn, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 28511, ASLBP 07-858-03-LR-BD01, 50-247-LR, 50-286-LR
Download: ML15315A024 (10)

Text

November 11, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

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

50-286-LR INC. )

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

WESTINGHOUSE ELECTRIC COMPANYS SUPPLEMENTAL RESPONSE REGARDING WESTINGHOUSES APPEARANCE AND PROPRIETARY DOCUMENTS In accordance with the Licensing Boards direction during the pre-hearing conference call on November 5, 2015,1 Westinghouse Electric Company LLC (Westinghouse) herein addresses two related issues: (1) New York States opposition2 to Westinghouses limited participation in this proceeding related to proprietary information; and (2) the implications of the Commissions decision of November 9, 2015,3 in this matter for the States pending motion4 to withdraw Westinghouses proprietary designation on ten additional documents. In addition, attached to this filing is a Non-Disclosure Agreement in accordance with the Protective Order in 1

Tr. 4723-24, 4752 (with the due date/time subsequently modified from 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> to 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> after the Commission decision anticipated for November 9, 2015).

2 State of New York Answer Opposing Westinghouse Electric Companys Motion for Leave to Appear Specially Regarding Additional Proprietary Documents, dated November 6, 2015 (Opposition).

3 CLI-15-24, dated November 9, 2015.

4 State of New York Motion for Public Disclosure of Various Westinghouse Documents, dated October 19, 2015 (Motion).

1

this matter, executed by Mr. Richard J. Coldren, Westinghouse Senior Counsel Intellectual property, who will attend the hearings later this month.

1. Westinghouses Participation Westinghouse first sought leave from the Licensing Board to appear specially to protect its proprietary information in this proceeding in May in response to the States motion to withdraw the proprietary designations by Westinghouse for five documents.5 The Licensing Board allowed Westinghouse to participate in an oral argument on May 14, 2015, and allowed Entergy Nuclear Operations, Inc. (Entergy) and Westinghouse to file a joint brief on the issue of Westinghouses proprietary designations for the documents and the legal standards for public release of such documents.

When the State filed its Motion to withdraw the proprietary designations for ten additional documents (or portions thereof), Westinghouse again sought leave to appear specially, on the assumption that the Licensing Boards prior allowance may not extend to the new State Motion.6 As before, the documents now at issue were disclosed to the State by Entergy and were provided to the State under a protective order. Westinghouse has asserted that the documents are entitled to be protected as confidential commercial information under 10 C.F.R. § 2.390(a)(4).

Westinghouses Motion to Appear explains the basis for and limited scope of Westinghouses appearance and participation in this matter. The Licensing Board has granted the motion by 5

Motion of Westinghouse Electric Company LLC to Appear Specially in Connection with State of New York Motion to Strike Proprietary Designations of Westinghouse and PWROG Proprietary Documents, dated May 5, 2015.

6 Westinghouse Electric Companys Motion for Leave to Appear Specially Regarding Additional Proprietary Documents, dated October 29, 2015 (Motion to Appear).

Without any presumption, Westinghouse stated (at page 2) that it is seeking to participate in the present case in an appropriate manner to protect its interests and preserve its rights.

2

Order dated November 3, 2015.7 Nonetheless, the State sought permission to file its Opposition, which amounts to a request for reconsideration of the Licensing Boards decision.

The Opposition does not provide any reason for the Board to reconsider Westinghouses limited participation to protect Westinghouse commercial information.

First, the basis for Westinghouses participation is 10 C.F.R. § 2.315(a), as well as the Licensing Boards discretionary authority to manage a proceeding8 and Commission precedent previously cited. The State alleges that Westinghouse is seeking to shoulder its way into the proceeding to participate in some open-ended fashion, subject only to self-imposed limitations.9 But that characterization does not comport with reality. Westinghouse has never sought to intervene as a party, nor does it intend to appear or otherwise participate on any issue other than the States own motions to release Westinghouse proprietary information to the detriment of Westinghouse. When it filed its Motion to Appear, Westinghouse had no way of knowing what further proceedings would be allowed by the Licensing Board in connection with the States Motion. But Westinghouse only sought to participate to protect its commercial interests and understands that it can and will appear only as allowed by the Licensing Board in whatever process is established by the Licensing Board for addressing the States Motion. The scope of and limitations on Westinghouses role are hardly self-imposed.

7 Order (Granting Westinghouse Electric Companys Motion for Leave to Appear Specially Regarding Additional Proprietary Documents (October 29, 2015), dated November 3, 2015; Tr. 4721.

8 See, e.g., 10 C.F.R. §§ 2.319(g) and (s).

9 Opposition at 6.

3

Second, the State suggests other approaches by which Westinghouse could have participated (e.g., by submitting a statement or joining in Entergys response to the motion).10 The State does not explain how Westinghouse could have done this without first filing a motion to appear. But, regardless, Westinghouse is free to choose how it wants to protect its interests in its proprietary documents, and it has chosen to do so in the same limited way as previously allowed in this very proceeding. Accordingly, Westinghouse filed a timely motion to do so.11 Westinghouse was not attempting to assure that it gets another bite at the apple, nor was it seeking or advocating multiple rounds of briefing as the State asserts.12 Westinghouse simply sought to appear in any relevant process, yet to be determined by the Licensing Board, to preserve its rights going forward.

Third, the State seeks discovery and depositions of Westinghouse employees to address perceived asymmetry in the process and to assure procedural fairness.13 However, there is no legal basis for this novel request. Westinghouse is not a party and does not itself offer evidence on the substantive contentions in the proceeding. NRC regulations do not provide for depositions in Subpart L hearings, and they do not provide for disclosures directly from non-parties in any proceeding. See generally 10 C.F.R. §2.336.14 Disclosures from the applicant 10 Opposition at 6.

11 Had Westinghouse moved to submit a statement as the State suggests, it is unclear why the State would not have objected to that as well, for the same reasons as offered in the Opposition.

12 Opposition at 6-7.

13 Id. at 7.

14 Section 2.336(g) further provides that the disclosure procedures in Section 2.336 are the sole discovery permitted unless allowed by another subsection for a particular type of hearing or as specifically allowed by the Commission. Neither of those exceptions applies here.

4

already encompass Westinghouse documents in the possession of Entergy that the applicant determines to be potentially relevant to the contentions, as evidenced by the fact that we are now addressing Westinghouse documents. But there is no basis in the regulations for discovery into the factual representations in the declarations of Westinghouse employees related to the proprietary nature of Westinghouse documents, as proposed by the State.

Finally, the State quibbles with Westinghouse counsels compliance with the consultation requirement in 10 C.F.R. § 2.323(b) with respect to Westinghouses Motion to Appear. Westinghouse counsel contacted the State three days in advance of its Motion to Appear and informed the State of its intended motion. The States counsel replied that at this point . . . the State cannot respond to Westinghouses proposal. The email went on to give a number of reasons, all making clear that the State continued to object to Westinghouses special appearance (as the State has consistently objected, before both the Licensing Board and the Commission). Westinghouse counsel stated accurately the States position that it could not at the time respond to the motion. Westinghouse had no obligation to further engage or recite the various bases for the States position. The Commissions regulations provide a process for the State to respond to a motion.

2. Commission Decision, CLI-15-24 As anticipated, on November 9, 2015 the Commission issued CLI-15-24, ruling on the States petition for interlocutory review of the Licensing Boards Order of July 20, 2015, denying the States first motion to withdraw Westinghouses proprietary designation for five documents. The States petition for interlocutory review also addressed the Licensing Boards implicit decision to allow Westinghouse to appear in connection with the first motion. The Commission in CLI-15-24 denied the petition for review, because the State did not demonstrate 5

that its petition meets the standards for interlocutory review in 10 C.F.R. § 2.341(f)(2). This applied to the States arguments on the merits of its motion as well as its arguments related to Westinghouses participation.15 The Commissions decision is, of course, without prejudice to the States ability to renew the appeal following a partial or final initial decision by the Licensing Board.

Presently, Westinghouses view is that the decision does not change the situation as it existed previously with respect to the States pending Motion or the dispute over Westinghouses ongoing role. The Licensing Boards prior decisions, including its most recent decision of November 3 allowing Westinghouse to participate, remain controlling in this case. The Commissions decision provides no basis for reconsideration.

3. Non-Disclosure Agreement As discussed during the pre-hearing conference call,16 Mr. Coldren, Westinghouses in-house intellectual property senior counsel, will be present at the upcoming hearings, including in any closed proceedings. He is authorized to have access to Westinghouses confidential commercial information by virtue of his role with the company.

Nonetheless, given that proprietary information of other entities may be involved, attached to this filing is a Non-Disclosure Agreement in accordance with the Protective Order in this matter, executed by Mr. Coldren.17 15 CLI-15-24, slip op. at 7-9.

16 Tr. 4750-52.

17 Mr. Repka, Westinghouses outside counsel on this matter, previously executed and submitted a Non-Disclosure Agreement.

6

Respectfully submitted,

/s/ signed electronically by David A. Repka Joseph Spadacene, Esq. David A. Repka, Esq.

Richard J. Coldren, Esq. Winston & Strawn LLP Westinghouse Electric Company LLC 1700 K Street, NW 1000 Westinghouse Drive Washington, DC 20006 Cranberry Township, PA 16066 E-mail: drepka@winston.com E-mail: spadacjc@westinghouse.com E-mail: coldrerj@westinghouse.com Barton Z. Cowan, Esq.

307 S. Dithridge Street, #814 Pittsburgh, PA 15213 E-mail: teribart61@aol.com Counsel for Westinghouse Electric Company LLC Dated at Washington, DC this 11th day of November 2015 7

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

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

50-286-LR INC. )

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the WESTINGHOUSE ELECTRIC COMPANYS SUPPLEMENTAL RESPONSE REGARDING WESTINGHOUSES PROPRIETARY DOCUMENTS AND APPEARANCE and the Non-Disclosure Agreement of Richard J.

Coldren in the captioned proceeding have been served via the Electronic Information Exchange (EIE) this 11th day of November 2015, which to the best of my knowledge resulted in transmittal of the foregoing to those on the EIE Service List for the captioned proceeding.

/s/ signed electronically by Victoria L. Hsia Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006-3817 Counsel for Westinghouse Electric Company LLC 1

DC:781684.1

November 11, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

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

50-286-LR INC. )

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

WESTINGHOUSE ELECTRIC COMPANYS SUPPLEMENTAL RESPONSE REGARDING WESTINGHOUSES APPEARANCE AND PROPRIETARY DOCUMENTS In accordance with the Licensing Boards direction during the pre-hearing conference call on November 5, 2015,1 Westinghouse Electric Company LLC (Westinghouse) herein addresses two related issues: (1) New York States opposition2 to Westinghouses limited participation in this proceeding related to proprietary information; and (2) the implications of the Commissions decision of November 9, 2015,3 in this matter for the States pending motion4 to withdraw Westinghouses proprietary designation on ten additional documents. In addition, attached to this filing is a Non-Disclosure Agreement in accordance with the Protective Order in 1

Tr. 4723-24, 4752 (with the due date/time subsequently modified from 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> to 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> after the Commission decision anticipated for November 9, 2015).

2 State of New York Answer Opposing Westinghouse Electric Companys Motion for Leave to Appear Specially Regarding Additional Proprietary Documents, dated November 6, 2015 (Opposition).

3 CLI-15-24, dated November 9, 2015.

4 State of New York Motion for Public Disclosure of Various Westinghouse Documents, dated October 19, 2015 (Motion).

1

this matter, executed by Mr. Richard J. Coldren, Westinghouse Senior Counsel Intellectual property, who will attend the hearings later this month.

1. Westinghouses Participation Westinghouse first sought leave from the Licensing Board to appear specially to protect its proprietary information in this proceeding in May in response to the States motion to withdraw the proprietary designations by Westinghouse for five documents.5 The Licensing Board allowed Westinghouse to participate in an oral argument on May 14, 2015, and allowed Entergy Nuclear Operations, Inc. (Entergy) and Westinghouse to file a joint brief on the issue of Westinghouses proprietary designations for the documents and the legal standards for public release of such documents.

When the State filed its Motion to withdraw the proprietary designations for ten additional documents (or portions thereof), Westinghouse again sought leave to appear specially, on the assumption that the Licensing Boards prior allowance may not extend to the new State Motion.6 As before, the documents now at issue were disclosed to the State by Entergy and were provided to the State under a protective order. Westinghouse has asserted that the documents are entitled to be protected as confidential commercial information under 10 C.F.R. § 2.390(a)(4).

Westinghouses Motion to Appear explains the basis for and limited scope of Westinghouses appearance and participation in this matter. The Licensing Board has granted the motion by 5

Motion of Westinghouse Electric Company LLC to Appear Specially in Connection with State of New York Motion to Strike Proprietary Designations of Westinghouse and PWROG Proprietary Documents, dated May 5, 2015.

6 Westinghouse Electric Companys Motion for Leave to Appear Specially Regarding Additional Proprietary Documents, dated October 29, 2015 (Motion to Appear).

Without any presumption, Westinghouse stated (at page 2) that it is seeking to participate in the present case in an appropriate manner to protect its interests and preserve its rights.

2

Order dated November 3, 2015.7 Nonetheless, the State sought permission to file its Opposition, which amounts to a request for reconsideration of the Licensing Boards decision.

The Opposition does not provide any reason for the Board to reconsider Westinghouses limited participation to protect Westinghouse commercial information.

First, the basis for Westinghouses participation is 10 C.F.R. § 2.315(a), as well as the Licensing Boards discretionary authority to manage a proceeding8 and Commission precedent previously cited. The State alleges that Westinghouse is seeking to shoulder its way into the proceeding to participate in some open-ended fashion, subject only to self-imposed limitations.9 But that characterization does not comport with reality. Westinghouse has never sought to intervene as a party, nor does it intend to appear or otherwise participate on any issue other than the States own motions to release Westinghouse proprietary information to the detriment of Westinghouse. When it filed its Motion to Appear, Westinghouse had no way of knowing what further proceedings would be allowed by the Licensing Board in connection with the States Motion. But Westinghouse only sought to participate to protect its commercial interests and understands that it can and will appear only as allowed by the Licensing Board in whatever process is established by the Licensing Board for addressing the States Motion. The scope of and limitations on Westinghouses role are hardly self-imposed.

7 Order (Granting Westinghouse Electric Companys Motion for Leave to Appear Specially Regarding Additional Proprietary Documents (October 29, 2015), dated November 3, 2015; Tr. 4721.

8 See, e.g., 10 C.F.R. §§ 2.319(g) and (s).

9 Opposition at 6.

3

Second, the State suggests other approaches by which Westinghouse could have participated (e.g., by submitting a statement or joining in Entergys response to the motion).10 The State does not explain how Westinghouse could have done this without first filing a motion to appear. But, regardless, Westinghouse is free to choose how it wants to protect its interests in its proprietary documents, and it has chosen to do so in the same limited way as previously allowed in this very proceeding. Accordingly, Westinghouse filed a timely motion to do so.11 Westinghouse was not attempting to assure that it gets another bite at the apple, nor was it seeking or advocating multiple rounds of briefing as the State asserts.12 Westinghouse simply sought to appear in any relevant process, yet to be determined by the Licensing Board, to preserve its rights going forward.

Third, the State seeks discovery and depositions of Westinghouse employees to address perceived asymmetry in the process and to assure procedural fairness.13 However, there is no legal basis for this novel request. Westinghouse is not a party and does not itself offer evidence on the substantive contentions in the proceeding. NRC regulations do not provide for depositions in Subpart L hearings, and they do not provide for disclosures directly from non-parties in any proceeding. See generally 10 C.F.R. §2.336.14 Disclosures from the applicant 10 Opposition at 6.

11 Had Westinghouse moved to submit a statement as the State suggests, it is unclear why the State would not have objected to that as well, for the same reasons as offered in the Opposition.

12 Opposition at 6-7.

13 Id. at 7.

14 Section 2.336(g) further provides that the disclosure procedures in Section 2.336 are the sole discovery permitted unless allowed by another subsection for a particular type of hearing or as specifically allowed by the Commission. Neither of those exceptions applies here.

4

already encompass Westinghouse documents in the possession of Entergy that the applicant determines to be potentially relevant to the contentions, as evidenced by the fact that we are now addressing Westinghouse documents. But there is no basis in the regulations for discovery into the factual representations in the declarations of Westinghouse employees related to the proprietary nature of Westinghouse documents, as proposed by the State.

Finally, the State quibbles with Westinghouse counsels compliance with the consultation requirement in 10 C.F.R. § 2.323(b) with respect to Westinghouses Motion to Appear. Westinghouse counsel contacted the State three days in advance of its Motion to Appear and informed the State of its intended motion. The States counsel replied that at this point . . . the State cannot respond to Westinghouses proposal. The email went on to give a number of reasons, all making clear that the State continued to object to Westinghouses special appearance (as the State has consistently objected, before both the Licensing Board and the Commission). Westinghouse counsel stated accurately the States position that it could not at the time respond to the motion. Westinghouse had no obligation to further engage or recite the various bases for the States position. The Commissions regulations provide a process for the State to respond to a motion.

2. Commission Decision, CLI-15-24 As anticipated, on November 9, 2015 the Commission issued CLI-15-24, ruling on the States petition for interlocutory review of the Licensing Boards Order of July 20, 2015, denying the States first motion to withdraw Westinghouses proprietary designation for five documents. The States petition for interlocutory review also addressed the Licensing Boards implicit decision to allow Westinghouse to appear in connection with the first motion. The Commission in CLI-15-24 denied the petition for review, because the State did not demonstrate 5

that its petition meets the standards for interlocutory review in 10 C.F.R. § 2.341(f)(2). This applied to the States arguments on the merits of its motion as well as its arguments related to Westinghouses participation.15 The Commissions decision is, of course, without prejudice to the States ability to renew the appeal following a partial or final initial decision by the Licensing Board.

Presently, Westinghouses view is that the decision does not change the situation as it existed previously with respect to the States pending Motion or the dispute over Westinghouses ongoing role. The Licensing Boards prior decisions, including its most recent decision of November 3 allowing Westinghouse to participate, remain controlling in this case. The Commissions decision provides no basis for reconsideration.

3. Non-Disclosure Agreement As discussed during the pre-hearing conference call,16 Mr. Coldren, Westinghouses in-house intellectual property senior counsel, will be present at the upcoming hearings, including in any closed proceedings. He is authorized to have access to Westinghouses confidential commercial information by virtue of his role with the company.

Nonetheless, given that proprietary information of other entities may be involved, attached to this filing is a Non-Disclosure Agreement in accordance with the Protective Order in this matter, executed by Mr. Coldren.17 15 CLI-15-24, slip op. at 7-9.

16 Tr. 4750-52.

17 Mr. Repka, Westinghouses outside counsel on this matter, previously executed and submitted a Non-Disclosure Agreement.

6

Respectfully submitted,

/s/ signed electronically by David A. Repka Joseph Spadacene, Esq. David A. Repka, Esq.

Richard J. Coldren, Esq. Winston & Strawn LLP Westinghouse Electric Company LLC 1700 K Street, NW 1000 Westinghouse Drive Washington, DC 20006 Cranberry Township, PA 16066 E-mail: drepka@winston.com E-mail: spadacjc@westinghouse.com E-mail: coldrerj@westinghouse.com Barton Z. Cowan, Esq.

307 S. Dithridge Street, #814 Pittsburgh, PA 15213 E-mail: teribart61@aol.com Counsel for Westinghouse Electric Company LLC Dated at Washington, DC this 11th day of November 2015 7

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

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

50-286-LR INC. )

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the WESTINGHOUSE ELECTRIC COMPANYS SUPPLEMENTAL RESPONSE REGARDING WESTINGHOUSES PROPRIETARY DOCUMENTS AND APPEARANCE and the Non-Disclosure Agreement of Richard J.

Coldren in the captioned proceeding have been served via the Electronic Information Exchange (EIE) this 11th day of November 2015, which to the best of my knowledge resulted in transmittal of the foregoing to those on the EIE Service List for the captioned proceeding.

/s/ signed electronically by Victoria L. Hsia Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006-3817 Counsel for Westinghouse Electric Company LLC 1

DC:781684.1