ML20196B053
| ML20196B053 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 10/30/1998 |
| From: | Parkyn J AFFILIATION NOT ASSIGNED |
| To: | |
| Shared Package | |
| ML20196A963 | List: |
| References | |
| ISFSI, NUDOCS 9906230066 | |
| Download: ML20196B053 (9) | |
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UNITED STATES OF AMERICA J
NUCLEAR REGULATORY COMMISSION l
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in the Matter of
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PRIVATE FUEL STORACE L.L.C.
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Docket No. 72-22 ISFSI
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(Private Fuel Storage Facility)
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Affidavit of John D. Parkyn Pursuant to 10 CFR 6 2.790 CITY OF LA CROSSE
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STATE OF WISCONSIN
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John D. Parkyn, being duly sworn, states as follows:
1.
I am Chairman of the Board of Private Fuel Storage L.L.C. (PFS), a limited liability company organized and existing under the laws of the State of Delaware with its principal office currently located in La Crosse, Wisconsin. In that capacity, I am responsible for the operational and managerial matters of PFS.
2.
PFS is providing to Nuclear Regulatory Commission (NRC) staff attorneys copies of various PFS documents as part of ths informal discovery process in the proceeding before the Atomic Safety and Licensing Board concerning PFS' application for a license to construct and operate the Private Fuel Storage Facility (PFSF), an
. independent spent fuel storage installation, on the reservation of the Skull Valley Band 9906230066 990616 l-PDR ADOCK 07200022
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of Goshute Indians. Some of the information contained in the PFS documents provided to the NRC staff attorneys is sensitive proprietary commercial and financial information that could cause great harm to PFS if it were made publicly available. Accordingly, PFS requests the NRC to withhold this sensitive information, developed and owned by
' PFS, from public' disclosure pursuant to 10 CFR 2.790 of its regulations. This affidavit supplies the reasons why this information should be withheld from public disclosure as required by the regulation.
3.
The PFS documents containing the sensitive, proprietary commercial and financial information for which PFS requests the Commission to treat as proprietary and to withhold from public disclosure are attached to this affidavit. Each of the documents,
. is prominently stamped with the statement "PFS Confidential Information." These PFS documents are being provided to the NRC staff attorneys only pursuant to discovery in the PFSF licensing proceeding and not for any other reason.
4.
I am familiar with the sensitive commercial and financial information contained in the PFS documents attached to this affidavit. I am authorized to speak to PFS' practice of maintaining such information proprietary and the harm that would befall PFS if it were publicly disclosed.
5.
The PFS documents attached to this affidavit contain sensitive proprietary information concerning participation of member utilities in the PFS Limited Liability Company (including sensitive private communications with current and prospective PFS members on the terms of participation in PFS and contingency planning). The attached PFS documents also contain sensitive proprietary information concerning the.
development and operation of the PFSF (including sensitive proprietary information on the evaluation and. selection of alternative sites for the PFSF, a copy of the business lease between PFS and the Skull Valley Band of Goshute Indians, proposed insurance arrangements for the PFSF, sensitive, detailed financial inputs to cost estimates for the s.
PFSF, and purchase orders and change orders for PFS contractor work) as well as confidential PFS Board of Managers meeting minutes and committee reports, and
' internal drafts of reports and presentations for internal PFS review.
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The sensitive, proprietary commercial and financial information contained in the documents attached to this affidavit is information of the type customarily held in confidence by PFS, and this information and these documents are so held. PFS does not disclose this type of information to the public and it is not available from public sources. The rational basis for not disclosing this type of information is that the information is commercially sensitive to the conduct of PFS' business, i.e., the development and operation of an independent spent fuel storage facility, and its disclosure to competitors and customers could cause PFS substantial competitive harm.- if the information contained in the PFS documents attached to this affidavit became available to PFS' competitors or customers (both current and potential), those parties would learn of sensitive commercial, cost, and financial information which could be used against PFS in the competition for customers or negotiatier. Nnntracts for servicesc Such a result would place PFS at a significant competitive disadvantage in negotiations with potential customers, would provide potential competitors with competitively advantageous information, and cause PFS substantial commercial harm. -
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Accordingly, the PFS documents attached to this affidavit are being transmitted to the Commission in confidence under the provisions of 10 CFR. @ 2.790 with the understanding that they and the information they contain will be received and held in confidence by the Commission and withheld from public disclosure.
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D. Parkyn f
Sworn to before me this M day of October 1998
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Duncan F. Steadman (7439)
STEADMAN FAlasANKS & SHEPLEY. LC.
550 South 300 West
'....u. t.aa Payson Utah 846512808 i
(801) 465 0703 Fax:(801) 465-0733
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Artomeys for All Individual Relators and Plaintiffs I U I!'53 1
John Paul Kennedy (1796) sy
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Salt Lake City. Utah 84105 (801) 583-6170 Fax:(801) 581-1007 Attorney for Relator Confederated Tribes of the Goshute Reservation IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION UNiltiD STATES OF AMERICA Ex Rel: Sammy Blackbear Sr., Colleen Blackbear, Abby Bullereek. David Bullcreek. Lisa Bullcreek, COMPLAINT Margene Bullereek, Tymne Bullereek, Vern Bear, Edwin Clover, Kenneth W. Eagle, Leslie Dawn Eagle, Edith Knight, Eldon Knight, Lena Knight, Adrian Moon. Delford Moon Edgar Moon.
Marlinda Moon, Linda Clover Rivera. Diane Eagle Torn. Stephanie E. Vigil. Denise Wash. Lester Wash. Marvin R. Wash. Herman Bahe, and Confederated Tribes of the Goshute Reservation; Sammy Blackbear Sr. and Margene Bullcreek, 2:99 0156K Plaintiffs-BRUCE BABBITT. Secretary of the United States Department of the Interior: the UNITED STATES DEPARTMENT OF THE INTERIOR: the BUREAU OFINDIAN AFFAIRS; WAYNE NORDWALL, Phoenix Area Director. Bureau ofIndian Affairs:
DAVID L. ALLISON. Superintendent of Uintah and Ouray Agency. Bureau ofIndian Affairs: PRIVATE FUEL STORAGE L.L.C.. a Wisconsin based Delaware Limited Liability Company licensed to do business in the State of Utah. and DOES 1-100; Case No:
Defendants.
Judge: D4L; bM LL I
Coe4PLAmT-MAACu 10.1999-Pact I or d w a== = w
prior to the Secretary approval of any replacement lease, to ensure proper collection a of relevant data and to verify the effective opponunity to participate by potentially affected
_ peoples.
CLAIM FOR RELIEF 7: Copy of Full Lease Not Provided to Tribal Council Members (5 U.S.C. 5 $$2: Secretary luolated Freedom ofInformation Act (FOLA) Requirements)
Plaintiffs Sammy Blackbear. Sr. and Margene Bullcreek allege as to Defendants Bruce Babbitt, the United States Department of The Interior; the Bureau ofIndian Affairs; Wayn Nordwall and David L. Allison:
248. The allegations contained in paragraphs 1 thmugh 247 are hereby realleged and incorporated.
249. The State of Utah filed Freedom ofInfonnation Act tequests (" Utah FOIA" herein),
dated April 28,1997, and June 16,1997, with the BIA, requesting a copy ofPurported Lease. -
250. Plaintiffs, each members of the Tribal General Council, the primary governing body of the tribe, on May 28,1998 submitted a similar request to Defendant Superiawadam of the Uintah and Ouray Agency of the Bureau ofIndian Affairs, pursuant to the Freedom ofInformation Act (hereinafter "FOIA"),5 U.S.C. 9 552 (a) 3, and implementing regulations, seeking, among other things, a copy of the Purported Lease "for the purpose of allowing them, and each of them, to fulfill their obligations as tribal council members."(" Bear FOIA" herein and " Exhibit D" hereto).
251. The Utah FO!A and Bear FOIA sought (using identical wording):
Copies of all leases presently in effect covering all or any pan of the land. (June 16,1997 Utah FOIA request.14c; Bear FOIA request,14c.)
252. In response to said FOIA requests, the BIA sent both the State and the Plaintiff Tribal General Council Members an identical redacted copy of the Purported Lease, claiming Exemption 4 of the FOIA as thejustification for the redaction.
253. Exemption 4 exempta - from disclosure " trade secrets and commercial or financial
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a information obtained from a person and privileged or confidential."(5 U.S.C. 9 552(b)(4).)
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254. 'The copy of the Purported Lease supplied in response to the FOIA requests contained substantial redactions and is unsuitable for use by members of the Tribal General Council in j
j meeting their duties and obligations to the Tribe.
255. The redactions included termination provisions, payments to be made from the Lessee to the Lessor, rental adjustments to be made during the term of the Lease, the interest payable on late lease payments, provisions dealing with taxes and regulations, and provisions dealing with
" frustration of purpose."
256. The material redacted goes to the heart of the Purported Lease and is crucial for the siembers of the Tribal General Council in order to understand the Pwwwd Lease, and its affect on the tribe and tribal members, in order for the members of the Tribal General Council to discharge their tribal responsibilities.
l 257, The FOIA exemption relied upon by the Superintendent does notjustify withholding '
fmm Tribal General Council Members the crucial provisions of the Purponed Lease which were withheld from them.
258. It wu ermr for the Superintendent to have refused to produce the portions of the Purymtmi Lease that were redacted.
259. An appeal was filed, by the State of Utah, and the delay in responding counts as a danial thereof and an exhaustion of available administrative remedies.
260. Because ofidentical requests and identical responsea, any further appeal to administrative remedies would be futile, 261. The Furported Lease is clearly a "very important" or "significant" lease of trust lands requiring careful involvement attention to detail by the Secretary and Department.
262. The Purported Lease on its face acknowledges the responsibility and duty of Tribal consetAstr MAacu18,1999-PAos 3sor43
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General Council Members to conduct all important tribal business. including the authorizatior. of any entry into a lease of Tribal trust land.
263. The redacted copy of the Purported Lease states:
WHEREAS. the Band conducts its tribal business through a General Council comprised of eligible membership of the Band and an Executive Committee, a three-member governing body elected by the General Council: (Third full paragraph on page 1).
And:
WHEREAS, the Band has authorized entry into this Leste through General Council Resolution... (Top of page 2).
264. Despite his fiduciary duties, and notwithstanding his clear legal requirement to do so for so important a lease, the Secretary failed to provide a complete copy of Purported Lease when requested to do so by the Plaintiff Members of the Tribal General Council to assist them in meeting their duties and obligations.
265. The Court is requested to issue an Order directing the Superintendent to produce all redac'ted portions of the Purported Lease pursuant to Plaintiffs Bear FOIA squest.
266. The Court is additionally requested to Order the BIA to review its involvement with respect to the Purported Lease and verify or ensure proper tribal approval by the Tribal General Council before final Secretary Approval of Purpormd Lease.
267. The Court is further requested to retain jurisdiction to supervise the Secretary and BIA in their involvement in the renegotiation. re review, tribal approval, Secretary approval, and implementation of the purported lease or lease modifications, should the supervised Secretary and BIA review determine the need for such.
REQUESTED RRt IEF WHEREFORE, as to claims For Relief 1 through 6 PlaintifT United States of America prays for relief as follows:
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