ML20205E310
| ML20205E310 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 04/01/1999 |
| From: | Bollwerk G, Lam P, Shon F Atomic Safety and Licensing Board Panel |
| To: | AFFILIATION NOT ASSIGNED |
| References | |
| CON-#299-20183 99-762-02-LA, 99-762-2-LA, LA, NUDOCS 9904050134 | |
| Download: ML20205E310 (17) | |
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- 2 ->g gp l T3 00CKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION
' ATOMIC SAFETY AND LICENSING BOARD p.-1 P 2 :22 Before Administrative Judges:
7 OFP<D 4
G.
Paul Bollwerk, III, Chairman py Frederick J.
Shon ADJUDD I-Dr. Peter S.
Lam SERVED APR-t im In the Matter of Docket No. 50-400-LA CAROLINA POWER & LIGHT COMPANY ASLBP No. 99-762-02-LA (Shearon Harris Nuclear April 1, 1999 Power Plant)
MEMORANDUM AND ORDER (Protective Order)
Upon consideration of the March 26, 1999 motion of i
petitioner Board of Commissioners of Orange County, North Carolina (BCOC), for approval of a proposed protective order to govern the use and dissemination of proprietary or other protected materials in this proceeding, including j
enclosure 6 to the December 23, 1998 license amendment
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application of Carolina Power & Light Company (CP&L) that is at issue in this proceeding, and there being no opposition thereto, we crant the motion and adopt a protective order, the terms of which are as follows:
A.
This protective order shall govern the use of all protected materials produced by, or on behalf of, any party to this proceeding as defined in paragraph
- below.
Notwithstanding any order terminating this proceeding, this 9904050134 990401 PDR ADOCK 05000400 0
PDR 3 9D
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protective order shall remain in effect until specifically modified or-terminated by the Licensing Board or the I
i Commission.
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B.
A participant may designate as protected materials j
i information (1) that is of a type customarily held in
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i confidence by its owner; (2) for which there is a rational
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i basis for having customarily held it in confidence; (3) that
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has, in fact, been kept in confidence; and (4) that is not i
found in public sources.
See Kansas Gas and Electric Co.
(Wolf Creek Nuclear Generating Station, Unit No. 1),
j l
ALAB-327, 3 NRC 408, 416-17 (1976).
i
'C.
Definitions -- For purposes of this protective order:
1.
The term " party" shall mean CP&L and BCOC.
For the i
purposes of this protective order, the term party does not include the NRC staff.
The provisions of this protective order, unless expressly stated, do not apply to NRC employees,. contractors, or consultants.
Disclosure of protected material by the staff, including staff counsel, is governed by 10 C.F.R.
SS 2.744, 2.790, 9.17, 9.25.
-2.
The term " materials" means any audio or video tape recording or written matter of any kind, whether produced, 1
reproduced, or stored on paper, cards, tapes, ribbonc, i
disks, belts, charts, film, computer files, computer disks or diskettes, computer storage devices, or any other medium, i
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3-and includes,- without-limitation, books, reports, studies, statements, speeches, notebooks, calendars, working papers, manuals', memoranda, notes, instructions, directions, records, correspondence, diaries, diagrams, drawings, lists, telephone logs, minutes, and photographs, and also includes, without. limitation, originals,' copies (with~or without notes or changes thereon), and drafts.
3.
The term " protected materials" means:
a.
the Holtec, Inc., proprietary technical report that is enclosure 6 to CP&L's license amendment
-application; b.
materials (including depositions) provided by a party in response to discovery requests and designated.by such party as protected;-
c.
any information contained in or obtained from such designated materials; d.
any other materials that are made subject to this protective order by the Licensing Board, by the Commission, int any court or other body having appropriate authority, or by agreement of the parties; e.
notes of protected materials; and f.
copies of protected materials.
The term " protected materials" does not include:
any information or document contained in the files
)
a.
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of_the Commission, or any other federal or state
= agency, or any federal or state court, unless the
. information or document.has-been determined to be protected by such agency or court, or b.
information that is public knowledge, or which becomes public knowledge, other than through disclosure in violation of this protective order.
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_4-4.
The term " notes of. protected materials" means L
_ memoranda,' handwritten. notes, or any other form of information (including electronic form) that copies or
' discloses protected materials described in paragraph C.3
- above.
Notes of protected materials are subject to the same restrictions'provided in this protective order.for protected;
~
materials.except as specifically provided in this protective order.
5.
The term " nondisclosure declaration" shall mean the declaration included as Attachment A to this_ protective I
order _byLwhich parties who have been granted access to l
protected materials _shall-certify their understanding that j
l suchLaccess to protected materials is provided pursuant to the. terms.and restrictions of this protective order, and that such parties have read the protective order and agree to be bound by it.
All nondisclosure declarations shall-be served on counsel for the parties listed in paragraph C.1 above and the staff, as provided on the official service listiin this proceeding.
6.
The term " reviewing representative" shall mean a
- person who has signed.a nondisclosure declaration and who is
a.
an' attorney who has made an appearance in this proceeding for a party, except for staff counsel; b.
attorneys, paralegals, and other employees L
associated for purposes of this case wi.1 an-j attorney described in paragraph C.6.a a~oove;
p d -
N,
I c.-
1aniexpert retained by-a party for the purpose of advising,: preparing for or testifying in',this proceeding; d.
' a person' designated.as ;a reviewing representative y
by order of the Licensing' Board lor the Commission;-
or-e.
court-reporters engaged for: depositions or record proceedings.
Protected materials shall be made available under D.
the terms of this protective order only to parties and~only l
through their reviewing-representatives as provided in paragraphs H-L below.
The party producing the protected
~
materials shall physically mark them on each page as
" PROTECTED MATERIALS"'or "CONFIDEN'TIAL," or with words of similar import as long as either the term " Protected Materials" or " Confidential" is included in that designation tx) indicate that they are protected materials.
'E.
Protected materials shall remain available to parties until the laterlof the date that an order terminating'this proceeding is no longer subject to' judicial review, or the date that any other Commission proceeding re]ating to the protected material is concluded and no
. longer' subject to judicial review.
The parties shall, Lwithin fifteen (15) days of the'later date described above, return the protected. materials (excluding notes of protected materials)?to the party that produced them, or shall dcatroy
'the material's,.except that copies of filings, official 1
a
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transcriptszand exhibits in:this proceeding that contain protected materials,'and notes of protected materials may'be retained, if they.are maintained in'accordance with
. paragraph F below. 'Within such time period each party shall also/ submit'to the producing party an affidavit stating that,.to the best'of its knowledge, all protected materials and all' notes of protected materials have been returned or have been destroyed or will be maintained in accordance with paragraph F below.
To the extent protected materials are not returned or destroyed, they shall. remain subject to this protective. Order.
F.
Parties shall maintain all protected materials in a secure place.
Access to those materials-shall be limited to those reviewing representatives specifically authorized I
pursuant to paragraphs I-L below.
j G.
For documents-submitted to the staff, the staff shall follow the notification procedures of 10 C.F.R.
S 2.790 before making public any protected materials.
H.
Protected materials shall be treated as confidential by-each party and by the reviewing representative'in accordance with the declaration Executed 1
pursuant 'to paragraph K below.
Protected materials shall l;
not be:used except as necessary for the conduct of this
. proceeding, nor.shall they be disclosed in any manner to any person except a reviewing representative who is engaged in
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, the conduct of this proceeding and who needs to know the information in order to carry out that person's responsibilities in this proceeding.
Reviewing representatives may make copies of protected materials, but such copies become protected materials.
Reviewing representatives may make notes of protected materials, which shall be treated as notes of protected materials if they disclose the' contents of protected materials.
I.
Reviewing representatives may not use information contained in any protected materials obtained through this proceeding to give any party or any competitor of any party a commercial advantage.
J.
In the event that a party wishes to designate as a reviewing representative a person not described in paragraph C.6 above, the party shall seek agreement from the party providing the protected materials.
If an agreement is
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reached, that person shall be a reviewing representative pursuant to paragraph C.6 above with respect to those materials.
If no agreement is reached, the party shall submit the disputed designation to the Licensing Board for resolution.
K.
A reviewing representative shall not be permitted to inspect, participate in discussions regarding, or otherwise be permitted access to protected materials pursuant to this protective order unless that reviewing
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. representative has first executed a nondisclosure declaration.
.A copy of each executed nondisclosure declaration shall be-provided to counsel for the party
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asserting' confidentiality prior to disclosure of any
. protected material to that reviewing representative.
L.
Attorneys qualified as reviewing representatives are responsible for ensuring that persons under their supervision or control comply with this protective order.
'M.
Any reviewing representative may disclose protected
~
materials to.any other reviewing representative as long as the disclosing reviewing representative and.the receiving
. reviewing representative have both executed a nondisclosure declaration.
In the event that any reviewing representative to whom the' protected materials are disclosed ceases to be 1 engaged in these proceedings, or is employed or retained for-a position whose occupant is not qualified to be a reviewing representative under paragraph C.6 above, access to
. protected materials by that person shall be terninated.
Even if no longer engaged in this proceeding, every person
-who has executed a nondisclosure declaration shall continue 1
to be bound by the provisions of this protective order and the declaration.
N.
Subject to paragraph U below, the Licensing Board shall resolve any disputes arising under this protective order.
Prior to presenting any dispute under.this
I
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j i
j
_ 9, _
1 protective' order to the~ Licensing Board, the parties to the i
dispute shall'use their best efforts to resolve it.
Any j
i party that contests the designation of materials as protected ~ shall' ~ notify the party that provided the protected materials by specifying in writing the. materials whose
. designation is contest'ed.
This protective order shall automatically. cease to apply to such materials ten (10) days after-the notification.is.made unless the designator, within said-ten-day period, files a, motion with the Licensing Board, with supporting affidavits, demonstrating that the materials should continue to be protected.
In any challenge to the designation of materials as protected, the burden of proof shall.be on the party seeking protection.
If the l
Licensing Board finds'that the materials at issue are not entitled to protection, the procedures of paragraph U below shall apply.
Production of NRC records and documents is governed by 10 C.F.R.
S,2.744.
.O.
All copies of all documents reflecting protected materia'.s that are filed by any party or the staff, including the portion of the hearing testimony, exhibits, transcripts, pleadings and other documents which refer to
. protected materials, shall be. filed and served (1) in sealed-envelopes or otherJappropriate containers endorsed to the effect:that'they are sealed pursuant to this protective order; (2) by either of the methods specified in s.:_
i e
.r. paragraphs B.l.a1and B.l.b of the Licensing Board's FebruaryL24, 1999. initial prehearing order, so long as the chosen method is-intended to ensure receipt of the' document
.(or any segregable portion containing protected material) by the next business day.
Such documents.shall be marked
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" PROTECTED MATERIALS."
Counsel for the producing party shall provide to'all parties-who request the same, a list of reviewing representatives who.are entitled to receive such material.
Counsel shall take all reasonable precautions necessary to assure that. protected materials are not distributed to unauthorized persons.
P.
If any. party desires to include, utilize, or refer to'any protected materials or information. derived therefrom in testimony or exhibits during the hearing in these proceedings in such a manner that might require disclosure of such material to persons o'her than reviewing c
representatives, such party shall first notify in writing both counsel for the disclosing party and the Licensing Board of such desire, identifying with particularity each of the protected materials.
Thereafter, use of such protected materials will be governed by procedures determined by the Licensing Board.
Q.
Nothing in this protective order shall be construed as precluding any party from objecting to the use of protected materials on any legal grounds.
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R.
Nothing in-this protective order shall preclude any party fromfreguesting the Licensing Board, the Commission, or?any other body having appropriate authority, to find that this protective ~ order should not apply to all or any materials ~previously designated as protected materials pursuant to this protective order.
The Licensing Board may alter or amend this protective order as circumstances warrant at any timefduring the course of this proceeding.
S.
Each party governed by this protective order has the'right to seek changes in it as appropriate from'the
' Licensing Board or the Commission.
T.
Nothing in this protective order shall prevent any party from seeking public disclosure of.information designated as protected materials, in accordance with NRC regulatory procedures.
U.
If the Licensing Board finds at any time in the I
course of this proceeding that all or part of the protected materials need not be. protected, _those materials shall, nevertheless, be subject to the protection afforded by this protective order for ten (10) days from the date of issuance of1the Licensing Board's decision, and if the party seeking protection. files an interlocutory appeal or requests that the issue be certified to the Commission, for an additional ten (10) days.
None of ' the parties waives its rights to seek additional administrative or judicial remedies after
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.the' Licensing l Board's decision respecting protected, I materials or reviewing representatives, or the Commission's j
denial of.any appeal thereof.
I V..
Nothing in'this protective order shall.1xe deemed-to
-preclude-any party from independently seeking through d
' discovery in any other administrativeLor judicial proceeding information or materials produced in this proceeding under this protective order.
l l
W.
None of the parties waives the right to pursue any other -legal cn: equitable remedies that may be available in l
the event of actual or anticipated disclosure of protected i
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materials.
X.-
Protected materials or any other form of information that copies or discloses protected materials shall not be disclosed tocanyone other than in accordance-with this protective order and shall be used only in' connection with this proceeding.
Any violation of this
. protective order and of any nondisclosure declaration executed hereunder shall constitute a violation of an order of the Commission.
Any violation of this protective order may result in the imposition of sanctions as the Licensing Board or the Commission may deem to be appropriate,
-including, but not limited to, referral of'the violation to i
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g.
~ ** :
, c,.,
j appropriate bar associations and,other disciplinary
. authorities.
It'is so ORDERED.
THE ATOM 7C SAFETY AND LICENSING BOARD
- b Jl G.
Paul Bollwerk, III ADMINISTRATIVE JUDGE I
)
G,:
Frederic Shon ADMINIST I
. JUDGE
.'Q Dr. Peter S.
Lam ADMINISTRATIVE JUDGE Rockville, Maryland l
~ April 1,'1999 i
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Copies of this memorandum and order were sent this date by.Internet'e-mail transmission to counsel for (1) applicant CP&L; (2):intervenor BCOC; and (3) the staff.
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Pe 4.
e ATTACTIMENT A i
1 I
N o
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKET NO. 50-400-LA l
NONDISCLOSURE DECLARATION Under penalty of perjury, I hereby certify my understanding that access to protected materials is provided to me pursuant to the terms and restrictions of the Atomic Safety and Licensing Board's April 1, 1999 protective order in this proceeding, that I have been given a copy of and i
have read the protective order, and that I agree to be bound i
by it.
I understand that the contents of the protected materials, any notes or other memoranda, or any other form of information that copies or discloses protected materials shall not be disclosed to anyone other than in accordance with that protective order.
I acknowledge that a violation of this declaration or the April 1, 1999 protective order, which incorporates the terms of this declaration, constitutes a violation of an order of the Nuclear Regulatory Commission and may result in the imposition of sanctions as the Licensing Board or the Commission may deem to be appropriate, including, but not limited to, referral of the violation to appropriate bar associations and other i
disciplinary authorities.
WHEREFORE, I do solemnly agree to protect such confidential information as may be disclosed to me in this NRC proceeding, in accordance with the terms of this
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declaration.
i Name (Printed):
Title:
Representing:
Signature:
I Date:
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-UNITED STATES OF AMERECA NUCLEAR REGULATORY CONMISSION In the Matter of CAROLINA POWER & LIGHT COMPANY Docket No.(s) 50-400-LA (Shearon Harris Nuclear Power Plant)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB M&O (PROTECTIVE ORDER) have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judge Office of Commission Appellate G. Paul Bo11werk, III, Chairman Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge Frederick J. Shon Peter S. Lam j
Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Marian L. Zobler, Esq.
Richard G. Bachmann, Esq.
Diane Curran, Esq.
Office of the General Counsel Harmon, curran, Spielberg Mail Stop 15 B18
& Eisenberg, L.L.P.
U.S. Nuclear Regulatory Commission 1726 M Street, NW, Suite 600 Washington, DC 20555 Washington, DC 20036 William D. Johnson John H. O'Neill, Jr., Esq.
Vice President and Senior Counsel William R. No11away, Esq.
Carolina Power & Light company Shaw, Pittman, Potts & Trowbridge P. O. Box 1551 2300 N Street, NW Raleigh, NC 27602 Washington, DC 20037
S.
Docket No,(s)50-400-LA LB M&O (PROTECTIVE ORDER)
Dated at Rockville, Md. this 1 day of April 1999 ice of the Secretary of the Celmission
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