ML17188A262
Text
LR-N17-0044 LAR H17-03 Affidavits from GEH and the Electric Power Research Institute (EPRI) Supporting the Withholding of Information in Enclosure 6 from Public Disclosure
GE-Hitachi Nuclear Energy Americas LLC NEDC-33871P Revision 0 Affidavit Page 1 of 3 AFFIDAVIT I, Lisa K. Schichlein, state as follows:
(1) I am a Senior Project Manager, NPP/Services Licensing, Regulatory Affairs, GE-Hitachi Nuclear Energy Americas LLC (GEH), and have been delegated the function of reviewing the information described in paragraph (2) which is sought to be withheld, and have been authorized to apply for its withholding.
(2) The information sought to be withheld is contained in GEH proprietary report NEDC-33871P, Safety Analysis Report for Hope Creek Generating Station Thermal Power Optimization, Revision 0, dated April 2017. GEH proprietary information in NEDC-33871P is identified by a dotted underline inside double square brackets. ((This sentence is an example.{3})). GEH proprietary information in figures and large objects is identified by double square brackets before and after the object. In each case, the superscript notation {3} refers to Paragraph (3) of this affidavit, which provides the basis for the proprietary determination.
(3) In making this application for withholding of proprietary information of which it is the owner or licensee, GEH relies upon the exemption from disclosure set forth in the Freedom of Information Act (FOIA), 5 U.S.C. §552(b)(4), and the Trade Secrets Act, 18 U.S.C.
§1905, and NRC regulations 10 CFR 9.17(a)(4), and 2.390(a)(4) for trade secrets (Exemption 4). The material for which exemption from disclosure is here sought also qualifies under the narrower definition of trade secret, within the meanings assigned to those terms for purposes of FOIA Exemption 4 in, respectively, Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871 (D.C. Cir. 1992), and Public Citizen Health Research Group v. FDA, 704 F.2d 1280 (D.C. Cir. 1983).
(4) The information sought to be withheld is considered to be proprietary for the reasons set forth in paragraphs (4)a and (4)b. Some examples of categories of information that fit into the definition of proprietary information are:
- a.
Information that discloses a process, method, or apparatus, including supporting data and analyses, where prevention of its use by GEH's competitors without a license from GEH constitutes a competitive economic advantage over other companies;
- b.
Information that, if used by a competitor, would reduce its expenditure of resources or improve its competitive position in the design, manufacture, shipment, installation, assurance of quality, or licensing of a similar product;
- c.
Information that reveals aspects of past, present, or future GEH customer-funded development plans and programs, resulting in potential products to GEH;
GE-Hitachi Nuclear Energy Americas LLC NEDC-33871P Revision 0 Affidavit Page 2 of 3
- d.
Information that discloses trade secret or potentially patentable subject matter for which it may be desirable to obtain patent protection.
(5) To address 10 CFR 2.390(b)(4), the information sought to be withheld is being submitted to NRC in confidence. The information is of a sort customarily held in confidence by GEH, and is in fact so held. The information sought to be withheld has, to the best of my knowledge and belief, consistently been held in confidence by GEH, not been disclosed publicly, and not been made available in public sources. All disclosures to third parties, including any required transmittals to the NRC, have been made, or must be made, pursuant to regulatory provisions for proprietary or confidentiality agreements or both that provide for maintaining the information in confidence. The initial designation of this information as proprietary information, and the subsequent steps taken to prevent its unauthorized disclosure, are as set forth in the following paragraphs (6) and (7).
(6) Initial approval of proprietary treatment of a document is made by the manager of the originating component, who is the person most likely to be acquainted with the value and sensitivity of the information in relation to industry knowledge, or who is the person most likely to be subject to the terms under which it was licensed to GEH.
(7) The procedure for approval of external release of such a document typically requires review by the staff manager, project manager, principal scientist, or other equivalent authority for technical content, competitive effect, and determination of the accuracy of the proprietary designation. Disclosures outside GEH are limited to regulatory bodies, customers, and potential customers, and their agents, suppliers, and licensees, and others with a legitimate need for the information, and then only in accordance with appropriate regulatory provisions or proprietary and/or confidentiality agreements.
(8) The information identified in paragraph (2) is classified as proprietary because it contains detailed GEH methodology for thermal power optimization for GEH Boiling Water Reactors (BWRs). Development of these methods, techniques, and information and their application for the design, modification, and analyses methodologies and processes was achieved at a significant cost to GEH.
The development of the evaluation processes along with the interpretation and application of the analytical results is derived from the extensive experience and information databases that constitute major GEH assets.
(9) Public disclosure of the information sought to be withheld is likely to cause substantial harm to GEH's competitive position and foreclose or reduce the availability of profit-making opportunities. The information is part of GEH's comprehensive BWR safety and technology base, and its commercial value extends beyond the original development cost.
The value of the technology base goes beyond the extensive physical database and
GE-Hitachi Nuclear Energy Americas LLC analytical methodology and includes development of the expertise to determine and apply the appropriate evaluation process. In addition, the technology base includes the value derived from providing analyses done with NRC-approved methods.
The research, development, engineering, analytical and NRC review costs comprise a substantial investment of time and money by GEH. The precise value of the expertise to devise an evaluation process and apply the correct analytical methodology is difficult to quantify, but it clearly is substantial. GEH's competitive advantage will be lost if its competitors are able to use the results of the GEH experience to normalize or verify their own process or if they are able to claim an equivalent understanding by demonstrating that they can arrive at the same or similar conclusions.
The value of this information to GEH would be lost if the information were disclosed to the public. Making such information available to competitors without their having been required to undertake a similar expenditure of resources would unfairly provide competitors with a windfall, and deprive GEH of the opportunity to exercise its competitive advantage to seek an adequate return on its large investment in developing and obtaining these very valuable analytical tools.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on this 29th day of March 2017.
NEDC-33871P Revision 0 LisaK. Schichlein Senior Project Manager, NPP/Services Licensing Regulatory Affairs GE-Hitachi Nuclear Energy Americas LLC 3901 Castle Hayne Road, M/C A-65 Wilmington, NC 28401 Lisa.Schichlein@ge.com Affidavit Page 3 of 3
r.:::J
r:tucmtcrowER a.=a-RESEARCH INSTITUTE Ref. EPRI Project Number 669 March 27, 2017 Document Control Desk Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, DO 20555*0001
,..... :::x**********--*******
NEIL WILMSHURST Vice President and Chler Nucl.edr Officer
Subject:
Request'for Withholding of the following Proprietary Information Included in:
PSEG, GE Hitachi Nuclear Energy Report titled:
1'Safety Analysis Report for Hope Creek Generating Statiqn Thermal Power Optimfzation11 NED0<33871 P, ReVision Oi dated April 2017 To Whom It May concern:
This is a requestunder 10 C.F.R. §2,390(a)(4) that the U.S. Nuclear Regulatory Commission (11NRC") withhold from public disclosure the report identified in the enplosed Affidavit consisting of the proprietaryinformatkm owned by Electric Power Research Institute, Inc. ("EPRjH) i.dentified In the attached report Proprietary and non proprietary versions of the Report and the Affidavitln support ofthis request are enclosed.
EPRI desires to disclose the Proprietary Information lh confidence to assist the NRC reView of the enclosed submittal to the NRC by PSEG. Th.e Proprietary Information is not to be divulged to anyone outside of the NRC or to any of its cohtractors nor shall any copies be made of the Proprietary Information provided herein. EPRI welcomes any discussions and/or questions relating to the information enclosed.
lfyou have. any questions aboutthe legal aspects of this requestfor withholding, please do not hesitate to contact me at (70'4) 595-2732, Questions on the content of the Report should be directed to Andy McG(3he,e of EPRI at (704) 502"6440.
SIOhJ/
Attachment(s)
Together... Shdping the Future of Electricity 1300 West W.T. HartiG Beu!evard, Charlolle, NC 28262*8550 USA
- 704.595.2732
- Mobile 704.490,2653
- nwilmshvrsl@epd.com
t=r.::Ji\\
HI.ITCTRfC POWER
.. RSEAfl_CH fNS'fiTUTrr AFFIDAVIT RE:
Request for Withholding of the Following Proprietf.\\ry Information Included In:
PSEG, GE Hitachi Nuclear Energy Report tltred:
j'Safety Analysis Report for Hope Creek Generat1ng Station Thermal Po\\fler Optimizatiori11NEDC-33871P, Revision 0, dat(:')d April2.017 I, Neil Wilmshurst, being duly :worn, depose and state as follows; I am the Vice President and Chief Nuclear Officer at Electric Power Research Institute., Inc, wnose principal office is located at 1300 W WT Harris 131Vd, Charlotte, Nc. ("EPRI") and I have blen specifically delegated responsibility for the above-IJsted repo} that contains EPR! Proprietary Information that is. sought under this Affidavit to be Withheld "Proprietary Information". I am authorized to apply to the U.s. Nuclear Regulatory Gomrnisskm ("NRC) for thQ withholding oft he Proprietary [nformatJon on beh.a.lf of EPR..L EPRI Proprietary Information is identified In the above referenced report with underlined text inside dou.ble brackets, Examples of such itientificationls. as follows:
((This sentence is an example{¸}))
T<:bles containing EPR! Propriet<::ry Information are identified With double brackets before* and after the object.
In each case the superscript notation {El refers to this affidavit and all the bases Included below, Which provide the reasons for the proprietary determination, EPRI requests that the Proprietary Information be withheld from the public on the following bases; WithhOlding Based Upon Privileged And Confidential Trade Secrets Or Commercial Or Financial Information (see e,g,j 10 C.F.R § 2.S90(a)(4}:
- a.
. The Proprietary Information. is owned by. EPRJ and has been held In confidence by EPRL All entitles accepting copies otthe. Proprietary Information do so subject to written egr(3ements imposing an obligation upon the recipient to maintain the: confidentiality of the Proprietary Information.
The Proprietary lnforrnatton is disclosed onlyto parties who agree, in writing, to preserve the.confidentiality thereof.
- b.
EPRJ considers the Proprietary Information contained therein to constitute trade secrets of EP.RL As such1 EPRI holds the lnformf:ltionin conf.ldence and disclosure thereof Is striotlyilmited to individuals and entitles who have agreed, Jnwritlng, to maint13inthe confidentiality ofthe Information.
- c.
The information sought to be withheld Is considered to be proprietary for the following reasons, EPRI made a substantia} econpmicinvestrnentto c!.evelop the Proprietary lnforrnattonand, by prohibiting public disclosure, EPRI derives an ecohomlc benefit inthe forrn of licensing royalties and other additional fees from the confidential nature ofthe Proprietary lnformatlbtl. IHhe Propri[tary lnformi=!Uon were publicly available to consultants and/or other businesses providing services fn the electric and/or nuo!earpower Industry, theywould
be able to use the Proprietary Information for their own commercial benefit and profit and without expending the substantial economic resources required of EPRI to develop the Proprietary Information.
- d.
EPRI's classification of the Proprietary Information as trade secrets is justified by the Uniform Trade Secrets Act which California adopted in 1984 and a version of which has been adopted by over forty states. The California Uniform Trade Secrets Act, California Civil Code §§3426-3426.11, defines a 11trade secret" as follows:
'"Trade secret' means Information, including a formula, pattern, compilation, program device, method, technique, or process, that:
(1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."
- e.
The Proprietary Information contained therein are not generally known or available to the public. EPRI developed the Information only after making a determination that the Proprietary Information was not available from public sources. EPRI made a substantial investment of both money and employee hours in the development of the Proprietary Information. EPRI was required to devote these resources and effort to derive the Proprietary Information. As a result of such effort and cost, both in terms of dollars spent and dedicated employee time, the Proprietary Information is highly valuable to EPRI.
- f.
A public disclosure of the Proprietary Information would be highly likely to cause substantial harm to EPRf's competitive position and the ability of EPRI to license the Proprietary Information both domestically and internationally. The Proprietary Information can only be acquired and/or duplicated by others using an equivalent investment of time and effort.
I have read the foregoing and the matters stated herein are true and correct to the best of my knowledge, information and belief. I make this affidavit under penalty of perjury under the laws of the United States of America and under the laws of the State of North Carolina.
Executed at 1300 W WT Harris Blvd being the premises and place of business of Electric Power Research Institute, Inc.
Nell Wilmshurst
(State of North Carolina)
(County of Mecklenburg)
Subscrlbed an,d swor to (or affirmed} before me on this ;li____'t{Jay of u1, 20./1, by
{l
, proved to me on the asis of satisfactory evidence to be the person(s) who appeared before me.
Signature Q.J.utJ?A J/. -c{(fX191 (Seal)
My Commission Expires ay of r2fd
, 20J.{