ML23216A244

Joint Motion for Entry of a Protective Order

ML23216A244
Person / Time
Site:	South Texas, 07201041
Issue date:	08/04/2023
From:	Ferraro D, Doris Lewis, Matthews J, Zorn J Constellation Energy Generation, JEMatthews Consulting, Law Office of David R. Lewis, South Texas
To:	NRC/OCM
SECY RAS
References
RAS 56741, 72-1041-LT, 50-498-LT, 50-499-LT
Download: ML23216A244 (0)

Text

UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION

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)

) Docket Nos. 50-498-LT In the Matter of:

) 50-499-LT South Texas Project Units 1 and 2 ) 72-1041-LT

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(Indirect Transfers of Licenses) ) August 4, 2023

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JOINT MOTION FOR ENTRY OF A PROTECTIVE ORDER Pursuant to 10 CFR 2.323 and the July 19, 2023 Federal Register notice in the captioned proceeding (88 Fed. Reg. 46,192), Constellation Energy Generation, LLC (Constellation), NRG South Texas LP and its parent companies (NRG Entities) (collectively Applicants), the City of San Antonio, Texas acting by and through the City Public Service Board of San Antonio (CPS Energy), and the City of Austin, Texas (Austin) (collectively Petitioners) hereby jointly move that the Commission to issue the attached Protective Order to govern any protected information filed in connection with the June 12, 2023 Application for Order Approving Indirect Transfer of Control of Licenses for South Texas Project Units 1 and 2 (Application) (ML23163A176).

Given the nature of this proceeding and Petitioners ownership interest in South Texas Project, the Protective Order governs the disclosure, access, and use of Sensitive Unclassified Non-Safeguards Information (SUNSI) in this proceeding, including the proprietary Enclosure 5 to the Application and any other proprietary, trade secret, or confidential commercial or financial information belonging to Petitioners or Applicants.

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Respectfully submitted,

/Signed Electronically by John E. Matthews/

Jason C. Zorn Associate General Counsel Constellation Energy Generation, LLC 250 Massachusetts Avenue NW Suite 760 Washington, DC 20001 240.645.3443 Email: jason.zorn@constellation.com Donald P. Ferraro Assistant General Counsel Constellation Energy Generation, LLC 200 Exelon Way, Suite 305 Kennett Square, PA 19348 Direct: 610.765.4461 Cellular: 610.295.8321 E-mail: donald.ferraro@constellation.com John E. Matthews Managing Director JEMatthews Consulting LLC 1135 Registry Boulevard St. Augustine, FL 32092 202.255.5110 Email: jematthewsconsulting@outlook.com Counsel for Constellation Energy Generation, LLC

/Executed in Accord with 10 CFR § 2.304(d)/

David R. Lewis Law Office of David R. Lewis 1524 Brookhaven Drive McLean, VA 22101 Tel. 703-501-7708 Email: davidralewis@outlook.com Counsel for NRG South Texas LP and its parent companies 2

/Executed in Accord with 10 CFR § 2.304(d)/

M. Stanford Blanton Alan D. Lovett BALCH & BINGHAM LLP 1710 Sixth Avenue North Birmingham, AL 35203-2015 (205) 226-3417 (205) 226-8769 sblanton@balch.com alovett@balch.com Counsel for City of San Antonio, Texas acting by and through the City Public Service Board of San Antonio

/Executed in Accord with 10 C.F.R. § 2.304(d)/

Anne L. Morgan, City Attorney Andrew J. Perny, Chief, Utilities and Regulatory Division Ariane Arth, Assistant City Attorney City of Austin - Law Department P.O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-3454 Facsimile: (512) 974-1311 Andy.Perny@austintexas.gov Ariane.Arth@austintexas.gov Counsel for City of Austin, Texas d/b/a Austin Energy 3

ATTACHMENT A - PROPOSED PROTECTIVE ORDER UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION

)

)

) Docket Nos. 50-498-LT In the Matter of:

) 50-499-LT South Texas Project Units 1 and 2 ) 72-104-LT

)

(Indirect Transfers of Licenses) ) ________, 2023

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)

MEMORANDUM AND ORDER (Protective Order Governing the Disclosure of Protected Information)

Upon Consideration of the Joint Motion for Entry of a Protective Order of Constellation Energy Generation, LLC (Constellation), NRG South Texas LP and its parent companies (NRG Entities), (Constellation, NRG, and NRCs parent companies are collectively referred to herein as Applicants), the City of San Antonio, Texas acting by and through the City Public Service Board of San Antonio (CPS Energy), and the City of Austin, Texas (Austin) (Austin and CPS Energy, Petitioners), we GRANT the motion and issue this Protective Order, the terms of which are as follows:

1. This Protective Order shall govern the use of all Protected Information produced or shared by, or on behalf of, the Applicants and Petitioners in this proceeding.

Protected Information consists of information designated at any time by the Applicants or Petitioners as confidential and proprietary information that is sensitive unclassified security information (SUNSI), i.e., information whose disclosure could reasonably be foreseen to harm the public interest, the commercial or financial interests of the entity or individual to whom the information pertains, the conduct of NRC and Federal programs, or the personal privacy of individual.1 This Protective Order shall remain in effect until specifically terminated by the Presiding Officer.

1 COMSEY-05-0054, Attachment 2, NRC Policy for Handling, Marking, and Protecting Sensitive Unclassified Non-Safeguards Information at 1 (Oct. 26, 2005). See also NRC Management Directive 12.6, NRC Sensitive Unclassified Information Security Program (Dec. 20, 1999); NRC Regulatory Issue Summary 2005-31, Control of Security-Related Sensitive Unclassified Non-Safeguards Information Handled by Individuals, Firms, and Entities Subject to NRC Regulation of the Use of Source, Byproduct, and Special Nuclear Material (Dec. 22, 2005).

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2. Representatives and employees of and consultants, experts and witnesses retained by Applicants and Petitioners shall be entitled to have access to the other partys Protected Information provided in connection with the License Transfer Application for the South Texas Project filed by Applicants on June 12, 2023 (ML23163A176) (Application), or in any petitions filed in connection therewith, upon execution of the attached Non-Disclosure Declaration. An individual that does not execute and file the Non-Disclosure Declaration is not authorized to receive access to the Protected Information.

3. For the avoidance of doubt, given the nature of this proceeding, Applicants and Participants may jointly hold a proprietary or confidential interest in certain Protected Information or may currently have authority to access or possess such information pursuant to separate confidentiality arrangements among the parties.

Nothing in this Order shall affect any preexisting proprietary or confidential interest or right to access and use Protected Information outside the context of this proceeding. Regardless of whether it has been produced in this proceeding,.any pleading or other document containing confidential and proprietary information protected by separate confidentiality arrangements among the parties shall be filed and protected as a Non-Public Submission in accordance with paragraph 11 of this Order. Nothing in this Order shall preclude any person from seeking through discovery in any other administrative or judicial proceeding, information protected by this Order.

4. The terms of this Protective Order do not apply to the NRC Staff or NRC legal counsel. The NRC Staffs use of Protected Information is governed by NRC regulations and policies as well as other applicable law.

5. Protected Information shall be treated as confidential by the parties. Protected Information shall not be used except as necessary for the conduct of a proceeding on the Application. The parties shall take reasonable precautions to ensure that Protected Information is not distributed to unauthorized persons. The parties shall maintain all Protected Information in a secure location, and shall not provide the Protected Information to anyone not authorized to receive it pursuant to this Order.

6. Legal counsel for the parties may allow legal staff under their supervision access to the Protected Information as necessary in the course of these proceedings. Legal counsel for the parties shall be responsible for ensuring that their staff complies with the terms of the Order.

7. Upon the termination of a proceeding on the Application or upon order by the Presiding Officer, each party shall within thirty (30) days return all materials containing Protected Information to the Applicant or destroy the materials, except that copies of filing, official transcripts, exhibits, and notes may be redacted so that only those portions containing Protected Information are destroyed.

8. Any recipient who has reason to suspect that Protected Information may have been lost or misplaced, or that Protected Information has otherwise become available to 2

unauthorized persons, shall promptly notify the disclosing party and the Presiding Officer of those suspicions and the reason for them.

9. If, upon receipt and review of a document designated as containing Protected Information, a party determines that such document does not appear to qualify for protection, that party may file a motion with the Presiding Officer challenging such designation. The motion shall not contain any Protected Information and shall be filed as a Public Submission through the E-Filing system; the challenged documents which contain Protected Information shall be filed as an In-Camera Submission through the E-Filing system. Absent good cause shown, any such motion shall be filed within ten (10) days of receipt of the Proprietary Document. Prior to presenting any such dispute to the Presiding Officer, the parties shall consult and use their best efforts to resolve it, including, but not limited to, the use of redaction. However, no party is obligated to redact documents containing Protected Information.

10. The Presiding Officer may alter or amend this Protective Order and resolve any disputes among the parties in connection therewith. Petitioner, Applicants, or NRC Staff may seek amendments to this Order by filing a motion for amendment. The Presiding Officer may issue additional orders concerning the use of Protected Information at a hearing, if one is held on the Application.

11. Pleadings or other documents for filing that contain information protected pursuant to this Order shall be filed electronically as a Non-Public Submission using the E-Filing system. The person filing the document must properly choose the option to prevent the document from being filed in the public docket. Only members of the ASLB, NRC Staff counsel, and the parties representatives who have executed the Non-Disclosure Declaration should be checked as recipients on the electronic service list. If any party discovers or realizes that a document filed in the public docket contains confidential and proprietary information, regardless of marking, it shall immediately notify the Presiding Officer and other parties and request the Presiding Officer to have such document redesignated as a Non-Public Submission in the E-filing system.

12. Any violation of this Protective Order or of any Non-Disclosure Declaration executed hereunder may result in the imposition of sanction as the Presiding Officer may deem to be appropriate. Nothing in this Order restricts or waives any partys rights to pursue any other legal or equitable remedies that may be available in the event of actual or anticipated disclosure of protected information.

13. Each party will file executed Non-Disclosure Declarations of its representatives promptly following issuance of this Order.

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It is so ORDERED.

For the Commission Brooke P. Clark Secretary of the Commission Dated at Rockville, Maryland this __ day of _____ 2023 4

NON-DISCLOSURE DECLARATION Under penalty of perjury, I hereby certify that:

1. I have read the ________, 2023 Protective Order issued in this proceeding and will comply in all respects with its terms and conditions regarding the Protected Information produced in connection therewith.

2. I agree not disclose Protected Information to anyone except an authorized person. I will protect documents containing or revealing Protected Information in written or recorded form so that the Protected Information contained therein remains at all times under the control of an authorized person and is not revealed to anyone else.

3. Neither during nor after this proceeding will I publicly reveal any Protected Information that I receive by virtue of this proceeding as long as the information remains SUNSI and is not otherwise a matter of public record.

4. I acknowledge that any violation of the terms of this declaration or the Protective Order, which incorporates the terms of this declaration, may result in the imposition of such sanctions on me that the Presiding Officer may deem to be appropriate.

WHEREFORE, I do solemnly agree to protect and keep confidential such protected information as may be disclosed to me in this proceeding, in accordance with the terms of this declaration.

Signature:

Name:

Date:

Representing:

[Non-Disclosure Declaration]