ML19312E828

Motion for Encl Protective Order & Agreement Re Jf Doherty 800112 Motion for Subpoena to Produce GE Reed Rept. Photocopy Privilege Will Be Granted If Shown That Document Is Essential for Evidentiary Purposes.W/Certificate of Svc

ML19312E828
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	06/11/1980
From:	Biddle C, Newman J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8006170609
Download: ML19312E828 (15)

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UNITED STATES OF AMERICA @ 4 NUCLEAR REGULATORY COMMISSION * , . .

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gog 8 BEFORE THE ATOMIC SAFETY AND LICENSING BOAR 6 gp o h

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-4 In the Matter of - 4  % '

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$g 5 ni HOUSTON LIGHTING & POWER COMPANY 5 Docket No. ,4665 f f

(Allens Creek Nuclear Generating 5

• y Station, Unit 1) $

MOTION FOR THE ISSUANCE OF A PROTECTIVE ORDER On January 12, 1980, Intervenor, John F. Doherty, filed a Motion to Subpoena That Document Known As The " Reed Report" from General Electric, Applicant's Vendor.

In a letter dated January 17, 1980, Applicant's counsel advised that General Electric and Mr. Doherty had authorized Applicant to represent to the Bt4 :d that the 1

issuance of a subpoena was unnecessary in light of their agreement to engage in informal negotiations ~for the purpose of reaching a settlement agreement on the inspection of the

" Reed Report". Thus, on January 21, 1980, the Motion was denied without prejudice to renew in the event the settle- .

ment negotiat. ions were unsuccessful.

Counsel for Applicant has been authorized by Mr.

Doherty and General Electric to represent to this Board that negotiations have been successful and that enough of an agreement has been reached to allow the inspection of the requested materials to proceed. General Electric and Mr.

Doherty are agreed, with one exception, that the attached 8006170 M m

proposed Order and Agreement Regarding Disclosure of Confi-dential Information is mutually satisfactory.

The exception concerns part E.(3) of the Agreement.

Mr. Doherty believes that he should be allowed to photocopy the materials while General Electric believes that this priviledge will threaten its confidentiality protection and has not been shown to be essential. Both are agreed, however, that this difference should not preclude the issuance of a protective order and the subsequent inspection of the materials.

1 According, Applicant moves the Board to issue the attached I proposed Order and Agreement with the understanding that Mr.

Doherty shall have the reserved right to seek an amendment

, to the Agreement allowing him a photocopying priviledge if, after his inspection, it is shown to be essential for the preparation of testimony, testimony, documentary evidence, I

cross-examination, or other legitimate evidentiary purposes I'

pertaining to his existing contentions.

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. . . 1 WHEREFORE, Applicant respectfully reuqests that this Board enter a Protective Order as attached hereto.

Respectfully submitted, l

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OF COUNSEL:

J. Gregory Cope.landC. Thomas Biddle, Jr.{/

BAKER & BOTTS Darrell Hancock 3000 One Shell Plaza Charles G. Thrash, Jr.

Houston, Texas 77002 3000 One Shell Plaza Houston, Texas 77002 ,

1 LOWENSTEIN, NEWMAN, REIS, Jack R. Newman )

AXELRAD & TOLL Robert H. Culp 4 1025 Connecticut Avenue, N.W. David Raskin Washington, D.C. 20036 1025 Connecticut Avenue, N.W.

WdshinJton, D.C. I ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER COMPANY s

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of 5 5

HOUSTON LIGHTING & POWER COMPANY 5 Docket No. 50-466 5 l (Allens Creek Nuclear Generating 5 l Station, Unit 1) 5 j l

ORDER j On January 12, 1980, Intervenor, John F. Doherty, filed a Motion to Subpoena That Document Known As The " Reed Report" from General Electric, Applicant's Vendor.

In a letter dated January 17, 1980, Applicant's .

counsel advised that General Electric and Mr. Doherty had authorized Applicant to represent to the Board that the issuance of a subpoena was unnecessary in light of their agreement a engage in informal negotiations for the purpose of reaching a settlement agreement on the inspection of the

" Reed Report". Thus, on January 21, 1980, the Motion was l denied without prejudice to renew in the event the settle-ment negotiations were unsuccessful.

The Board has been advised by counsel for Houston Lighting & Power Co. that negotiations have been substantially successful and that an agreement on how to proceed has been reached.

. General Electric has agreed to allow Mr. Doherty to inspect the following information subject to Mr. Doherty executing an appropriate protective agreement:

a. The " list of 27 so-called safety-related items" from the Reed Report provided for the sole purpose of determining that GE and HL&P have correctly decided which of the items are relevant to Mr. Doherty's ,

admitted contentions; I

b. Those items from the above list which are ,

i relevant to Mr. Doherty's admitted contentions; and

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c. A current status report on each of the relevant items. ,

l Both Houston Lighting & Power Co. and General Electric Company are willing to produce this information to Mr. Doherty for his inspection. However, General Electric believes that the Information is of a confidential or proprie- l tary natura, the release or disclosure of which to third parties could seriously impair General Electric Company's relationships with its competitors. Mr. Doherty has not challenged this assertion and he has advised that he has no objection to the entry of a Protective Order protecting the confidentiality of the Information.

The Board finds the proposed settlement to be entirely reasonable and acceptable.

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NOW THEREFORE, pursuant to 10 CFR SS 2.740(c) and 2.790,.

1. IT IS HEREBY ORDERED that since a rational basis exists to treat as confidential the Nuclear Reactor Study (and portions thereof or relating thereto) prepared under the direction and supervision of Dr. Charles Reed of General Electric Company in 1975 ("The Reed Report") and there are no countervailing considerations militating in favor of public disclosure of this report or portions thereof or l l

relating thereto which clearly outweight the potential harm to General Electric Company which might arise from such j disclosure, the scope of discovery of said report shall be i limited to protect against disclosure of the information  !

contained in the report to the general public.

2. IT IS HEREBY FURTHER ORDERED THAT, subject to paragraphs 3 and 4 of this Order, those items on the " list of 27 so-called safety-related items", which are relevant to Intervenor Doherty's contentions shall be identified and a current status report on those items shall, in accordance with the procedure specified in paragraph 3 of this Order, be produced for Mr. Doherty's inspection at General Electric's offices in Houston, Texas at a mutually convenient time.

3. IT IS HEREBY FURTHER ORDERED that the discovery granted herein be conditioned as follows:

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a. The foregoing information shall not be disclosed 1 1

t'o any person other-than Mr. Doherty in acc adance with' the protective agreement contained in Attachment A hereto. Mr. Doherty shall have the reserved right to i

seek an amendment to the agreement allowing him a photocopying privilege if, after his inspection, it is  ;

shown to be essential for the preparation of. testimony, l

documentary evidence, cross-examination, or other l legitimate evidentiary purpose pertaining to his existing contentions.

b. .If the Commission or the Board orders that l access to or dissemination of the Information shall be l

made to persons not included in paragraph 3(a) above, such matter shall only be accessible to, or dissemina-ted to, such persons based upon the conditions pertaining to, and obligations arising from this order and such persons shall be considered subject to it. )

c. Any porti,on of a transcript in connection with this proceeding containing the Information shall be examined ~in camera and shall be bound separately and filed under seal. If said information is included in an authorized transcript of a deposition or exhibits thereto, arrangements shall be made with the court reporter taking the deposition to bind such portions

O and separately label them " GENERAL ELECTRIC'S BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER". Before a court reporter receives any such Information, he or she shall first read this. order and shall have agreed in writing to be bound by the terms thereof.

d. All'Information shall be accorded confidential treatment within the meaning of 5 U.S.C. 552(b)(4) and 18 U.S.C. 1905, subject to a final Commission ruling, after notice, under 10 C.F.R. Section 2.790.

e. If this Information is disclosed to any person other than in the manner authorized by this Protective Order, the person responsible for the dis-closure must immediately bring all pertinent facts relating to such disclosure to the attention of counsel for General Electric Company and Houston Lighting & ]

Power Co. and the presiding officer and, without pre- ,

judice tt. other rights and remedies of General Electric Company and Houston, Lighting & Power Co., make every j

effort to prevent further disclosure by it or by the person who was the recepient of such Information.

f. Upon final termination of this proceeding, each person that is subject to this Order shall assemble and return to counsel for Houston Lighting & Power Co.

all such Information, including notes.

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4. IT IS HEREBY FURTHER ORDERED that in the event Intervenor Doherty needs to uti-lize any of the Information discovered pursuant to this. Protective Order during the evidentiary hearing in this proceeding, the Information shall only be disclosed M camera under the conditions set forth in paragraph 3 hereof and the Protective Agreement attached hereto and the transcript of such portion of the evidentiary hearing shall be sealed.

IT IS SO ORDERED.

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ATTACHMENT A AGREEMENT REGARDING DISCLOSURE OF CONFIDENTIAL INFORMATION A. John F. Dhoerty (hereinafter "Signator") is a party to the above captioned construction Permit proceeding.

'B. Houston Lighting & Power Co. (HL&P) has engaged General Electric Company (GE), a non-party in this proceeding, to supply the nuclear steam supply system for the Allens Creek Nuclear Generating Station. 1 1

C. Signator has requested that he be permitted to  !

inspect the following GE information:

a. The " list of 27 so-called safety-related items from the Reed Report (provided for the sole purpose of determining that GE and HL&P l

have correctly decided which of the items are relevant to Mr. Doherty's admitted contentions);

b. A current status report on each of the relevant items. ,

The information is claimed by GE to be confidential information and to be customarily held in confidence.

D. GE will make the information available to Signator to inspect and take notes, provided that the information in this document and notes (hereinafter "Information") will be -

used for the limited purposes and will be treated in a confidential manner as provided below.

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1 E. In consideration of tne disclosure of the Informa- l tion by GE, the Signator agrees us follows:

(1) Signator will inspect the document and cake any notes in strict confidence and secrecy at GE's offices in Houston, Texas at a mutually convenient time.

(2) S?gnator will use the Information only for  ;

preparation of testimony in connection with his existing I l

contentions in the above-captioned proceeding, in testimony I as documentary evidence, in cross-examination, and for other l l

legitimate evidentiary purposes in connection with his l l

existing contentions. The Information, if used in whole or in part for any of the above purposes -- preparation of l 1

testimony, testimony, documentary evidence, cross-examination,  ;

l and other legitimate evidentiary purposes -- shall be subject to paragraphs (3) and (4) below and shall be presented only I

during in camera hearing sessions that provide. protection against non-disclosure equivalent to that provided under ,

l this Agreement.

(3) Signator will not photocopy, transcribe, reproduce, or disclose the Information to any other person or entity who has not executed this Agreement.

(4) Signator will safeguard and hold in strict confidence the Information, as well as all evaluations, l

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data, or notes made in connection with the Information in accordance with paragraph (3) above.

(5)

Restrictions on disclosure contained herein shall not apply to any information or material:

a. whi ch can be shown to have been known or used by Signator prior to the date of disclosure to Signator

$ by GE, or

b. which either before or after the date of disclosure to Signator by GE is lawfully disclosed to Signator by an independent third party without restriction on disclosure on behalf of GE, or

c. which either before or after the date of disclosure to Signator by GE becomes available to the public through no fault of Signator.

Nothing in this Agreement shall be construed as permitting Signator to unfairly obtain the right to use Information that becomes publicly known through an improper act or omission on his part.

(6) GE retains all right, title, and interest in and to the Information.

(7) Signator may not assign this Agreement.

(8) Signator has not challenged the assertion that the Information is proprietary in nature and Signator will treat the Information on a .onfidential basis. In the l

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event any NRC regulation, rule, or ASLB order, other adminis-trator order, or judicial ruling requires the disclosure of the Information without providing the equivalent protection accorded under this Agreement, GE will have the right to immediately withdraw the Information from Signator upon request, and Signator will promptly abide by that request.

(9) Signator will return to GE all the Information at the conclusion of his use, but in no event later than the conclusion of the above-captioned Construction Permit proceeding, including appeals.

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Date Signator CONSENT TO GENERAL ELECTRIC COMPANY By _ _ _ _ _ __ _

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Date e

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

HOUSTON LIGHTING & POWER S COMPANY S Docket No. 50-466 S

(Allens Creek Nuclear S Generating Station, Unit S No. 1) S CERTIFICATE OF SERVICE ___ _

I hereby certify that copies of the foregoing Motion for the Issuance of a Protective Order in the above-captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand-delivery this lith day of June, 1980.

Sheldon J. Wolfe, Esq., Chairman Richard Lowerre, Esq.

Atomic Safety and Licensing Assistant Attorney General Board Panel for the State of Texas i U.S. Nuclear Regulatory Commission P. O. Box 12548 Washington, D. C. 20555 Capitol Station Austin, Texas 78711 Dr. E. Leonard Cheatum Route 3, Box 350A Hon. Charles J. Dusek Watkinsville, Georgia 30677 Mayor, City of Wallis P. O. Box 312 Mr. Gustave A. Linenberger Wallis, Texas 77485 Atomic Safety and Licensing ,.

Board Panel ' Hon. Leroy H. Grebe

, U.S. Nuclear Regulatory Commission County Judge, Austin County Washington, D. C. 20555 P. O. Box.99 Bellville, Texas 77418 Mr. Chase R. Stephens Docketing and Service Section Atomic Safety and Licensing Office of the Secretary of the Appeal Board Commission U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 Steve Schinki, Esq. Carro Hinderstein Staff Counsel 609 Fannin, Suite 521 U.S. Nuclear Regulati;ry Commission Ecuston, Texas 77002 Washington, D. C. 20555 8

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D. Mitrrack Mr. Bryan L. Baker 420 Mulberry Lane 1118 Montrose Bellaire, Texas 77401 Houston, Texas 77019 Mr. J. Morgan Bishop Stephen A. Doggett, Esq. 11418 Oak Spring P. O. Box 592 Houston, Texas 77043 Rosenberg, Texas 77471 ~

. Mr. John F. Doherty Robert S. Framson 4327 Alconbury Madeline Bass Framson ' Houston, Texas 77021 4822 Waynesboro Houston, Texas 77035 Ms. Brenda McCorkle 6140 Darnell Mr. W. Matthew Perrenod Houston, Texas 77074 4070 Merrick Houston, Texas 77025 Mr. Wayne E. Rentfro P .. O . Bor 1335 Mr. James M. Scott Rosenberg, Texas 77471 13935 Ivy Mount Sugar Land, Texas 77478 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

$* U l C. Tho, mas Biddle, Jr. l ll l

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