ML20137H487

Response Opposing Entry of Applicant & Intervenor 851107 Proposed Protective Order Against Nrc.Board Should Exclude NRC Supervisory Personnel from Persons Required to Execute Affidavits.Certificate of Svc Encl.Related Correspondence

ML20137H487
Person / Time
Site:	Braidwood
Issue date:	11/22/1985
From:	Berry G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#485-344 OL, NUDOCS 8512020405
Download: ML20137H487 (12)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARj5 0 26 P2:31 In the Matter of

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t COMMONWEALTH EDISON COMPANY Docket Nos. 50-456 l 50-457 (Braidwood Station, Units 1 and 2 )

NRC STAFF RESPONSE IN OPPOSITION TO ENTRY OF PROTECTIVE ORDER AGAINST NRC STAFF I. INTRODUCTION On October 4,1985, the Licensing Board ruled that certain of Inter-venor's prospective witnesses should be afforded confidential treatment throughout the discovery phase of this proceeding. See Memorandum And Order (Granting Protective Order), LBP , 22 NRC (October 4, 1985). The Board directed the parties to negotiate the form and substance of a proposed protective order and affidavit of nondisclosure to be' submitted to the Board for its approval. On November 7, 1985, Applicant and Intervenor submitted for the Board's approval a draft protective order and affidavit of non-disclosure. If entered by the Board, the proposed protective order would, inter alia, (1) enioin Applicant and the Staff from disclosing protected information to any person without first notifying (and arguably obtaining the consent of)

Intervenor's counsel; and (ii) require Applicant and the Staff to obtain and file with the Board an executed Affidavrc of Nondisclosure for each person to whom protected information is disclosed. As further explained i

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) below, the Staff objects to the proposed protective order because, in j addition to being unnecessary as against the Staff, it is

} administratively burdensome and unduly restrictive.

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II. DISCUSSION A.- The Proposed Protective Order is Unnecessarv As Against the NRC Staff The Staff opposes the proposed protective order primarily because

such an order is unnecessary. This is to say that the proposed protec-

I tive order will not contribute measurably to the prevention of the ,

perceived danger -- the unwarranted disclosure by the Staff of confi- '

j dential information furnished by Intervenor. The reason the proposed 6

i i protective order can contribute only marginally to the achievement of

! this goal is because there already exists an obligition on the part of 1

j all members of the Staff not to disclose, dissemina'.e. or otherwise

, compromise sensitive information. See eA,10 C.F.L Part 0, Subpart C; NRC Manual Appendix 2101. For example, 10 C.F.R. 6 0.735-30(c) prohibits i

Staff employees from disclosing confidential information. Staff members I similarly are enjoined from making unauthorized disclosures of restricted

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-and classified information. See 10 C.F.R. 5 0.735-30(a-b).

1 In Commonwealth Edison Co. (Byron Station, Units 1 and 2), Docket l

f Nos. 50-454, 455 (April 17, 1984) (unpublished order), the Appeal Board i

. entered a protective order requiring the parties bound by the order to protect the confidentiality of certain quality control inspectors who had j voiced concerns about the safety of the Byron facility. Recognizing that i

the Staff already was prohibited from making unauthorized disclosures of i

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protected infomation, the Appeal Board expressly exempted the Staff from the provisions of the protective order, stating:

The provisions of this Protective Order do not apply to Nuclear Regulatory Commission employees; they are subject to internal requirements (see NRC ManuaT7ppendix 2E1) concerning the treatment of protected information.

Id. , slip op, at 1, n.1 (emphasis added).1/ In light of the existing restrictions on the Staff concerning the disclosure of protected infomation, it can be stated fairly that entering of the proposed protective order against Applicant and Intervenor serves only to extend to those parties the obligations and responsibilities already undertaken by the Staff. The request to make the Staff a party to the proposed protective order should be denied.

i B. The Proposed Protective Order is Administratively Burdensome and Unduly Restrictive In addition to the general objections to the proposed protective 1

s order discussed in part A, supra, the Staff registers specific objections to two provisions of the proposed protective order.

1. Paragraph 4 of the proposed protective order requires counsel for Applicant and the Staff to obtain and file with the Board an Affidavit of Nondisclosure executed by every person to whom (and for whatever reason) confidential information is disclosed. In the Staff's view, this provision is overly broad in that it does not purport to exempt Staff members who, as part of their official duties, may be called 1/ A copy of the Appeal Board's Order is appended to this Response.

upon to review written materials or discuss matters involving confidential information. Paragraph 4 is objectionable also because of the administrative burden it places on the Staff. The Board should note that unlike either Intervenor or Applicant, to address the matters relating to the information encompassed by the proposed protective order, Staff counsel must consult with his or her supervisors and other appropriate Staff members, many of whom in turn also may find it necessary to confer with their supervisors and subordinates. Since paragraph 4 of the proposed protective order appears to require such individuals to execute an Affidavit of Nondisclosure simply to participate in a discussion goncerning the protected information, it is conceivable that Staff counsel would be forced to obtain affidavits from scores of clients in virtually every branch and at every level of the agency. To rec;uf re Staff counsel to obtain and file affidavits from individuals whose sole interest in this matter is limited to the review of pleadings, discovery responses, and other written materials would constitute a burden on the Staff that is unjustified in view of appli-cable regulatory requirements discussed above. For these reasons, the Board should exempt the Staff from the provisions in paragraph 4 of the proposed protective order which require Staff counsel to obtain and file with the Board an Affidavit of Nondisclosure from each Staff member to whom protected information is disclosed.

2. Paragraph 5 of the proposed protective order requires the Staff and Applicant to notify Intervenor's counsel prior to disclosure of the identity of the person to whom disclosure of confidential information is intended. In the Staff's view, this provision unduly interferes with

counsel's ability to manage the conduct of litigation. This is because the provision in question operates to give Intervenor a right that it does not enjoy under the Commissior's Rules of Practice: The right to discover the identity of the clients with whom Staff counsel consults in connection with the preparation of his or her case. Under the Rules of Practice a party is permitted to discovery the identity of an opposing party's witnesses; he has no right, however, to such information regarding a person not expected to be called as a witness. See 10 C.F.R. 5 2.740 (b)(2); Fed. R. Cw. P. 26(b)(4). Paragraph 4 of the proposed protectise order circumvents this principle. In addition, the provision in paragraph 4 giving Intervenor up to two days to object to the intended disclosure has the potential to enable Intervenor to impede the Staff's preparation of its case. This is because the proposed protective order does not make clear whether an objection by Intervenor enjoins the Staff from making disclosure absent express approval by the Board. If it does, the Staff will be prejudiced because it would be barred from conferring with the individuals involved pending express approval from the Board.

Significantly, the interference and inconvenience resulting from this provision is not outweighed by any competing interest. In this regard, the Staff notes that Intervenor's purported concern is in ensuring that disclosure is made only to those persons with a "need to know." That concern, however, is addressed adequately by paragraph 3 of the proposed protective order. Consequently, paragraph 5 of the proposed protective order should be stricken.

III. CONCLUSION For the reasons stated herein, the Board should not enter the proposed protective order against the Staff. In the alternative, the Board should exclude Staff supervisory personnel from the class of persons required to execute Affidavits of Nondisclosure and should strike paragraph 5 of the proposed protective order in its entirety.

Re fctfully submitted, O f Gregory try

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Counsel rN Staff Dated at Bethesda, Maryland this 22nd day of November, 1985 i

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l( 84e605 UNITED STATES OF AMERICA '

e - NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:  ;

Alan S. Rosenthal, Chairman April 17, 1984 l Dr. Reginald L. Gotchy Howard A. Wilber  !

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In the Matter of )

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• COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-454 OL

) 50-455 OL (Byron Station, Units 1 and 2) )

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ORDER The NRC Staff Motion For Protective Order And For Release Of Portions Of In Camera Transcript is granted in full. The proposed protective order has been signed and is appended hereto. We will expect the NRC staff to obtain the requisite affidavits of non-disclosure.

It is so ORDERED.

FOR THE APPEAL BOARD As!'t ] .

Barbara A. Tompkins Secretary to the Appeal Board

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A UNITED STATES'0F AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

C0KMONWEALTH EDISON COMPANY Docket Nos. 50-454 50-455 (Byron Station, Units 1 and 2)

PROTECTIVE ORDER Counsel and representatives of the parties to this proceeding who have executed an Affidavit of Non-Disclosure in the form attached shall be permitted access to " protected information"Al upon the following conditions:

1. Only counsel and representatives of the parties who have .

executed an Affidavit of Non-Disclosure may have access to protected information. All executed Affidavits of Non-Disclosure or copies shall be provided to the Appeal Board and the parties.

2. Counsel and representatives who receive any protected

- information (including any documents that contain or otherwise reveal protected information) shall maintain its confidentiality as required by 1/ As used in this order, " protected information" has the same meaning as used in the Affidavit of Non-Disclosure, attached hereto. The  :

provisions of this Protective Order do not apply to Nuclear Regulatory Commission employees; the NRC Manual Appendixconcerning 2101)y are subject to the treatment of internal protected requirements (se information.

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the attached Affidavit of Non-Disclosure, the terms of which are hereby j

incorporated into this protective order, j

3. Counsel and representatives who receive any protected infomation shall use it solely for the purpose of participation in  ;

i matters directly pertaining to this proceeding and any further I

proceedings in this case and for no other purposes. Nothing in this protective order, however, shall preclude any party from moving the Appeal Board for the release of particular information for appropriate purposes, such as for use before!another adjudicatory body.

4. Counsel and representr.tives shall keep a record of all documents containing protected linformation in their possession and shall account for and deliver that formation to counsel for the staff in this proceeding in accordancf. with the Affidavit of Non-Disclosure that each has executed.

5. In addition to the requirements specified in the Affidavit of Non-Disclosure, all papers filed in this proceeding that contain any protected information shall be segregated and:

(a) served only on the counsel or other representatives of each of the parties who have executed an Affidavit of Non-Disclosure; (b) served in a heavy optque inner envelope bearing the name of the addressee and statement " PRIVATE. TO BE OPENED BY ADDRESSEE ONLY." Addressees shall take all necessary precautions to ensure that they alone will open envelopes so marked.

6. Counsel, representatives, or any other individual who has 1

j reason to suspect that documents containing protected information may i

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l o l have been lost er' misplaced (for example, because an expected paper has not been received), or that protected information has otherwise become available to unauthorized persons, shall notify this Board promptly of those suspicions and the reasons for them.

IT IS 50 ORDERED.

FOR THE APPEAL BOARD uAe gs A J Barbara A.

L Tompkins

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Secretary to the Appeal Board Dated: April 17, 1984 e

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

COMMONWEALTH EDISON COMPANY Docket Nos. 50-456

) 50-457 (Braidwood Station, Units 1 and 2 )

CEPTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN OPPOSITION TO ENTRY OF PROTECTIVE ORDER AGAINST NRC STAFF" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, deposit in the Nuclear Regulatory Comission's internal mail system (*), or by express mail or overnight delivery (**),

or by hand delivery (***) this 22nd day of December, 1985:

Perbert Grossman, Esq., Chairman ** Commonwealth Edison Company Administrative Judge ATTN: Cordell Reed Atomic Safety and Licensing Board Assistant Vice President U.S. Nuclear Regulatory Comission P.O. Box 767 Washington, DC 20555 Chicago, IL 60690 Dr. A. Dixon Callihan Region III Administrative Judge U.S. Nuclear Regulatory Comission 102 Oak Lane Office of Inspection & Enforcement Oak Ridge, TN 37830 799 Roosevelt Road Glen Ellyn, IL 60137 Dr. Richard F. Cole *** Joseph Gallo, Esq.

Administrative Judge Isham, Lincoln & Beale Atomic Safety and Licensing Board Suite 840 U.S. Nuclear Regulatory Commission 1120 Connecticut Avenue, N.W.

Washington, DC 20555 Washington, DC 20036 Michael I. Miller, Esq.** Robert Guild, Esq.**

Rebecca J. Lauer, Esq. 109 North Dearborn Street Isham, Lincoln & Beale Suite 1300 Three First National Plaza Chicago, Il 60602 Suite 5200 Chicago, IL 60602

. Douglass W. Cassel, Jr., Esq. Atomic Safety and Licensing Board Timothy Wright, Esq. Panel

• 109 North Dearborn Street U.S. Nuclear Regulatory Comission Suite 1300 Washington, DC 20555 Chicago, IL 60602 Atomic Safety and Licensing Appeal Erie Jones, Director Board Panel

• Illinois Emergency Services U.S. Nuclear Regulatory Comission and Disaster Agency Washington, DC 20555 110 East Adams Springfield, IL 62705 Docketing and Service Section*

Office of the Secretary Lorraine Creek U.S. Nuclear Regulatory Commission Route 1, Box 182 Washington, DC 20555 Manteno, IL 60950 1 Ms. Bridget Little Rorem

H. Joseph Flynn, Esq. 117 North Linden Street l Associate General Counsel Essex, IL 60935 FEMA 500 C Street, S.W., Suite 480 Washington, DC 20740

. 0k l l Stuart A. Treby Assistant Chief Hearing ounsel I

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