ML20043H206
| ML20043H206 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 06/15/1990 |
| From: | Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP. |
| To: | VERMONT, STATE OF |
| Shared Package | |
| ML20043H207 | List: |
| References | |
| CON-#290-10488 OLA-4, NUDOCS 9006220210 | |
| Download: ML20043H206 (3) | |
Text
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UNITED STATES OF AMERICA 90 ml 18 P4 :29 NUCLEAR REGULATORY COMMISSION h'FrtCE OF SECRETAR 0CKLllHG A SIHVIII before the BRANCH ATOMIC SAFETY AND LICENSING BOARD
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.I In the Matter of
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Docket No. 50-271-OLA-4 VERMONT YANKEE NUCLEAR )
(Construction Period
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POWER CORPORATION
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Recapture)
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(Vermont Yankee Nuclear
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Power Station)
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YERMONT YANKEE OBJECTION TO DOCUMENT PRODUCTION AND REQUEST FOR PROTECTIVE ORDER (INPO DOCUMENTS)
Pursuant to 10 C.F.R. 6 2.740(c)(6) and i 2.790, and upon the Affidavit of Mr. James B. Sinclair submitted herewith and the authority of the
" Memorandum of Agreement Between the Institute of Nuclear Power Operations and the U.S. Nuclear Ran"'Ttory Commission" dated October 20, 1988.1 and Crhical Mass Energy Pro.
RC, 731 F. Supp. 554 (D.D.C.,
1990), Vermont Yankee Nuclear Powe, c- > oration (" Vermont Yankee")
hereby objects to the requests of the Sta.e of Vermont ("SOV") for the production of the documents identified by SOY in its second document production request (other than the document identified in Request No,11).
In support of this objection and request, Vermont Yankee says as follows:
- 1. As established in the affidavit of Mr. Sinclair, each of the documents in question is the property of the Institute of Nuclear Power Operations
("INPO"), and the documents (excepting only that requested in Request No.
- 11) are copyrighted by INPO and have been made available to Vermont Yankee only on the express condition that they not be disclosed to anyone else without INPO's consent. Vermont Yankee has informed INPO of the pending request for the inspection of these documents and been informed that INPO does not (with the exception of No.11) so consent.
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- 2. As established by the affidavit of Mr. Sinclair and the " Memorandum of Agreement" between INPO and NRC, each of these documents has been A copy of which is attached to Mr. Sinclair's affidavit.
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,. ',N mkde available to NRC on the understanding that NRC will control their distribution and not make them public, subject only to exceptions ' addressed by the parties to this agreement [INPO and the Commission) on a case-by-case basis?
- 3. As established by the affidavit of Mr.Sinclair and the decision of the Court in the Critical Mass case, INPO, the Commission and the Court have each determined that preserving the confidentiality of these documents is important if not critical to the accomplishment of the INPO mission and, l
thereby, to the assistance lent by INPO to the Commission's accomplishment of its statutory responsibilities.
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4.
As established by the Memorandum of Agreement between INPO and NRC and by the legal position taken by the Commission in the Critical Mass Energy Project decision, the Commission has determined that these types of documents are exempt from obligatory disclosure under the Freedom of Information Act and that it is Commission policy that they should not be disclosed as a matter of discretion, except only in soch specific cases as INPO and the Commission itself may determine.2 8"Such lNPO proprietary documents and information) will be ap-propriately [dentified as Limited or Restricted Distribution. Consistent with i
previous legal decisions sanctioning the exchange of proprietary information between INPO and NRC and in the interest of improving nuclear plant safety, NRC will control distribution of INPO proprietary documents and information with the agency and will exert best efforts to protect it from unauthorized disclosure. Exceptions to this policy for control of INPO proprietary documents and information will be addressed by the parties to this agreement on a case-by-case basis? Memorandum of Agreement at 2-3.
Because any order requiring the production of these documents would be at odds both with the position taken by the Commission in court in the Critical Mass Energy Project v. NRC,731 F. Supp. 554 (D.D.C.,1990), matter and in contravention of the Commission's stated policy and undertakings as reflected in the Memorandum of Agreement between INPO and NRC, Ver-mont Yankee respectfully suggests that only the Commission itself can order these documents produced.
- See, e.g.. Cleveland Electric illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-69,16 NRC 751, 753 (1982). Cf. also Carolina Power d Light Company (Shearon Harris Nuclear Power Station), LBP-86-11,23 NRC 294,371, af/'d, ALAB-852,24 NRC 532 (1986)(construing position taken by the Commission in court briefs to amount to such a Commission policy binding on the subordinate boards).
Therefore, Vermont Yankee respectfully suggests that the appropriate action
- that this Board should take is to grant this motion for a protective order and then, if requested by SOY, certify its decision to the Commission under the provisions of 10 C.F.R. i 2.718(i). -
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WasazFORs Vermont Yankee respectfully moves that its objection be
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sustained and that the Board enter a protective order that no production of the documents in question be had.
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R. K. Gad 111 N
Jeffrey P. Trout j
Ropes & Gray i
One international Place Boston, Massachusetts 02110 Telephone: 617-951-7520 June [1990.
Dated:
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