ML070120327

2007/01/12-LB Order (Protective Order Governing Non-Disclosure of Certain Documents Claimed to Be Proprietary)

ML070120327
Person / Time
Site:	Vermont Yankee
Issue date:	01/12/2007
From:	Karlin A Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
06-849-03-LR, 50-271-LR, RAS 12853
Download: ML070120327 (14)

Text

1 The provisions of this protective order do not restrict use by NRC counsel, witnesses,employees, consultants and others representing the NRC Staff of documents containingprotected material that the NRC is entitled to receive apart from its role as a litigant in this proceeding (e.g., documents containing information required to be submitted to the NRC bystatute, regulation, or license condition or information submitted to, or acquired by the NRC in support of a requested licensing action or in fulfillment of its regulatory responsibilities). Rather,NRC's use of such documents is governed by 10 C.F.R. §§ 2.390, 2.709, 9.17, and 9.25. The provisions of this protective order apply to NRC counsel, witnesses, employees, consultants, and others representing the NRC Staff with respect to documents containing protected material that NRC receives solely pursuant to 10 C.F.R. § 2.336 and this protective order.UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONRAS 12853 DOCKETED 01/12/07ATOMIC SAFETY AND LICENSING BOARD SERVED 01/12/07Before Administrative Judges:Alex S. Karlin, ChairmanDr. Richard E. WardwellDr. Thomas S. EllemanIn the Matter ofENTERGY NUCLEAR VERMONT YANKEE,L.L.C.,

and ENTERGY NUCLEAR OPERATIONS, INC.(Vermont Yankee Nuclear Power Station)Docket No. 50-271-LRASLBP No. 06-849-03-LR January 12, 2007ORDER(Protective Order Governing Non-Disclosure of Certain Documents Claimed to be Proprietary)This protective order governs the disclosure and use in this proceeding of certaindocuments that applicants Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (collectively, Entergy) claim contain proprietary trade secrets and commercial and financial information of Entergy or its vendors and contractors.

1 Pursuant to this protectiveorder, counsel, witnesses, employees, consultants, and others representing the Department of Public Service of the State of Vermont, the New England Coalition (NEC), the State of New 2 2 Licensing Board Order (Initial Scheduling Order) (Nov. 17, 2006) at 5 [InitialScheduling Order].

3 Joint Submittal of Proposed Protective Order and Confidentiality Agreement RegardingProprietary Documents (Dec. 7, 2006).

4 The Board previously granted a joint motion which exempted parties from listingcertain documents for which the attorney-client or attorney work-product privilege are claimed intheir privilege logs. Joint Motion on Privilege Log and Disclosure (Oct. 20, 2006), granted Oct.20, 2006. Hampshire, and the NRC Staff shall be permitted access to such documents upon theconditions set forth herein.I. Procedural PostureEach party to this proceeding is required to disclose and provide all documents relevantto the admitted contentions, except those documents for which a claim of privilege or protected status is being made. 10 C.F.R. § 2.336(a)(2). In the latter case, the party must list such documents on a privilege log. 10 C.F.R. § 2.336(a)(3).

On November 17, 2006, the Board issued its Initial Scheduling Order, in which it directed the parties to confer with one another on or before December 8, 2006, for the purpose of discussing and developing a joint proposed protective order and non-disclosure agreement dealing with the handling (and redaction) of documents that are claimed to contain privileged, proprietary or otherwise protected information.

2 The parties did confer and developed aunanimously agreed proposed protective order and non-disclosure agreement, which they jointly submitted to the Board on December 7, 2006.

3 The proposal by the parties relates only to those documents for which Entergy claims aprivilege based on the assertion that the documents contain proprietary trade secrets andcommercial or financial information. Certain attorney-client and attorney work-product privilege issues were handled amicably earlier.

4 However, the current proposal leaves unresolved 3 5 For decisions regarding motions to compel production of documents in a caseinvolving deliberative process privilege claims, see Entergy Nuclear Vermont Yankee, L.L.C.,and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-05-33, 62NRC 828 (2005); Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), LBP-06-3, 63 NRC 85 (2006).

6 Examples of these generally applicable rules include 10 C.F.R. § 2.336 (requiring thatprivilege logs contain sufficient information for assessing the claim of privilege), 10 C.F.R. §2.323(a) (requiring motions to be filed within 10 days of the occurrence from which the motion arises), and 10 C.F.R. § 2.323(b) (requiring that motions include a certification that the movant made a sincere effort to contact the other party and to resolve the issue before filing themotion).

several other types of privilege claims (e.g., proprietary claims by other parties and privilegeclaims based on other types of privileges such as the deliberative process privilege), even though such issues have been the subject of some dispute in a related proceeding.

5 Eventhough the parties' proposal is somewhat limited, the Board finds it very useful and is adopting it, with some modifications. However, the parties should be aware that, absent some other procedures blessed by this Board, all other claims of privilege and challenges thereto will be handled in accordance with the Part 2 regulations.

6 II. Terms and Conditions of Protective OrderAfter due consideration of the proposed protective order and non-disclosure agreement,the public interest in an open and public hearing, and the practical and efficient conduct of this proceeding, the Board issues the following protective order:1. If counsel for Entergy in good faith believes that a document contains informationthat qualifies under 10 C.F.R. § 2.390(a)(4) and (b)(4)(i)-(v) as a trade secret and commercial or financial information that is privileged and confidential, then he or she may designate it as such and it shall be protected in accordance with the terms and conditions of this order. Such documents shall hereinafter be referred to as "Proprietary Documents." Entergy shall (a) prominently mark each Proprietary Document on the first page with a conspicuous "Proprietary" 4 7 This order, and the good faith representation and designation of documents asProprietary Documents by counsel for Entergy, serves in lieu of the requirement for markingand for an affidavit under 10 C.F.R. § 2.390(b) and allows the Staff to receive Proprietary Documents and to protect their confidentiality under FOIA. label, (b) list each Proprietary Document on a proprietary privilege log placed in the public filesof this proceeding, and (c) within thirty (30) days of the date of this order, disclose and produce an unredacted copy of the Proprietary Document to the appropriate party. The privilege log shall provide sufficient information for assessing the claim that the document or relevant portion of the document is entitled to be treated as proprietary. 2. Proprietary Documents duly listed on the privilege log shall be deemed to containproprietary trade secrets and commercial and financial information required to be held in confidence pursuant to the policy reflected in 10 C.F.R. § 2.390(a)(4). 3. Entergy shall provide an unredacted copy of each Proprietary Document to the dulyauthorized representatives of the intervenors, the Staff, and the State of New Hampshire, if they have signed the non-disclosure agreement attached hereto. Such parties and representative shall hold such documents in confidence and in compliance with the terms and conditions of this order.

7 4. If an intervenor, the Staff, or the State of New Hampshire declines to sign the non-disclosure agreement and requests a redacted version of the Proprietary Document, then Entergy shall, within twenty (20) days of the request, provide the requestor a properly redacted version of the Proprietary Document. 5. The Board will resolve any disputes arising under this protective order. Prior topresenting any such dispute to the Board, the parties shall consult and use their best efforts to resolve it. Any party that objects to the designation of a document as proprietary or to the extent of its redaction, shall provide Entergy with a written notice of objection. Except for good 5cause shown, notice of objection to the designation of the document as proprietary must bedelivered to Entergy within thirty (30) days of the date that Entergy provided the Proprietary Document to the party. If the party has declined to sign the non-disclosure agreement, objections to the proprietary designation must be delivered to Entergy within thirty (30) days of the date Entergy listed the document on the privilege log, and objections to the extent of redaction must be delivered within thirty (30) days of receipt of the redacted version. The thirty day period is deemed the Consultation Period. Prior to the end of the Consultation Period, the parties may obtain an automatic thirty (30) day extension by filing a joint certification that they have been and continue to be engaged in good faith efforts to resolve the matter. Further extensions may only be granted by affirmative action of the Board. These time limits do not apply to the January 16, 2006, deadline for filing objections to initial disclosures and updates mentioned in the Initial Scheduling Order. See Initial Scheduling Order at 5-6. For mattersrelated to these disclosures, the deadlines contained in the Initial Scheduling Order remain in effect. 6. The protections of this protective order shall automatically cease to apply to aProprietary Document ten (10) days after the Consultation Period (and any extension) expires, unless, within that ten (10) days, Entergy files a motion with the Board, with a supporting affidavit, demonstrating and specifying those portions of the document that should be protected.

Entergy has the burden of showing that information in the Proprietary Document is a trade secret and commercial or financial information that is privileged and confidential and that, on balance, it warrants protection under 10 C.F.R. § 2.390(a)(4) and (b)(4)(i)-(v). 7. If Entergy has filed a motion under the preceding paragraph then, pending a ruling bythe Board, the Proprietary Documents in question shall continue to be held in confidence. If the Board rules that a document does not qualify for the asserted privilege, or that, on balance, the 6 8 Alternatively, Entergy may make the documents it identified as proprietary in itsprivilege log available to NRC counsel, witnesses, employees, consultants and othersrepresenting the NRC Staff for inspection at the offices of Entergy's counsel in lieu of such NRC representatives signing the non-disclosure agreement. In that event access would not include making copies unless the Staff personnel signed the non-disclosure agreement. Likewise, Entergy may make proprietary documents available for review at the Vermont Yankee plant to representatives of New Hampshire, should New Hampshire decline to sign the non-disclosure agreement. In that event access would not include making copies unless the New Hampshire personnel signed the non-disclosure agreement. document should be disclosed without the restrictions of this protective order, then theunrestricted use of such documents may begin fifteen (15) days after the Board's decision. If, during such time, Entergy files an interlocutory appeal or request that the issue be certified to the Commission, such period of time shall be extended for an additional ten (10) days, during which time the Board or Commission may consider a request for any further stay. 8. Only individual counsel, consultants, witnesses, employees, and others representingthe intervenors, the State of New Hampshire, or the Staff who have executed the attached non-disclosure agreement, and the Board and its staff, may have access to Proprietary Documents.

8 Proprietary Documents shall only be used as necessary for the conduct of this proceeding.

Proprietary Documents shall not be disclosed in any manner to any person except (a) the Board and its staff, and (b) those representatives of the parties engaged in the conduct of this proceeding who have executed the non-disclosure agreement and who, in the reasonable opinion of the party who has received the Proprietary Documents, need to know the information contained in the Proprietary Documents in order to carry out their responsibilities in this proceeding. Individuals with access to Proprietary Documents may make copies of and take notes on the confidential information contained in the documents, but such copies and notes become Proprietary Documents subject to the terms of this protective order.9. Counsel, consultants, witnesses, employees, and others representing a party whoreceive documents subject to the terms of this protective order shall maintain the confidentiality 7 9 The submission of this affidavit does not reopen the opportunity, specified inparagraph 5 above, for a party to challenge the designation of a document as a ProprietaryDocument, except to the extent that a party can demonstrate by motion that new information contained in the section 2.390(b) affidavit shows that proprietary protection should not be afforded to the document. of the information contained therein as required in the attached non-disclosure agreement, theterms of which are incorporated herein.10. Counsel shall take all reasonable precautions necessary to assure that ProprietaryDocuments and the information contained therein are not distributed to unauthorized persons.

Counsel are responsible for ensuring that persons under their supervision or control comply with this protective order. 11. A party intending to file or submit any pleading, testimony, exhibit, orcorrespondence in this proceeding that contains a Proprietary Document or information derived from a Proprietary Document, shall notify counsel for Entergy in writing, as soon as the party is aware of the likely use of the Proprietary Document and, to the fullest extent possible, no less than ten (10) days prior to the date of the intended filing. Such notice shall identify the Proprietary Document(s) that the party intends to use or include. Unless Entergy submits an affidavit conforming to the requirements of 10 C.F.R. §§ 2.390(b)(1)(ii) and (iii) within ten (10) days after the filing of such pleading, testimony, exhibit, or correspondence, the protections of this protective order shall automatically cease to apply to the Proprietary Document.

9 12. All pleadings, testimony, exhibits and correspondence in this proceeding thatcontain information derived from a Proprietary Document shall:a. Be served by electronic mail (except for attachments to such pleadings whichare not already in electronic format), with an additional paper copy served in a sealed envelope by United States first class, registered, express, or certified mail, internal NRC mail, messenger-courier, or overnight delivery service; 8b. Include an attached cover sheet identifying the pleading, testimony, exhibit, orcorrespondence as containing a Proprietary Document or information derived therefrom, and a cover letter that describes the contents of the pleading or correspondence without reference to such information, and, in the subject line of the electronic filing e-mail, a statement that the electronic filing contains proprietary information; c. Specifically designate, by highlighting, marginalia, or other appropriatemarkings, the portion of the pleading, testimony, exhibit or correspondence, that contains a Proprietary Document or information derived therefrom; andd. Be served only on the Board, the NRC's Office of the Secretary, andrepresentatives of the Staff or appropriate party authorized to receive such information pursuant to this protective order. e. Be accompanied by a version of the pleading, testimony, exhibit and/orcorrespondence with the proprietary information redacted if, and to the extent that, the party filing the pleading, testimony, exhibit and/or correspondence in good faith determines that such a redacted version can be prepared without undue burden or expense. 13. At any hearing or conference in this proceeding in which a statement is made by therepresentative of a party, or a witness is questioned, concerning a Proprietary Document or information contained therein, the statement or testimony shall be given in camera or underother suitable conditions as this Board may establish, and the record of that portion of the hearing and any transcript thereof, shall be withheld from distribution to the public. It shall be the duty of the party whose statement or testimony contains the proprietary information to be presented, to notify the Board and the parties that such testimony or statement will contain proprietary information, prior to the testimony or statement being made. 14. Proprietary Documents shall remain available until the date that an order 9terminating this proceeding is no longer subject to judicial review. The parties shall, withinfifteen (15) days of the date described above, return the Proprietary Documents to counsel for Entergy or shall destroy that material, except that copies of filings, transcripts, and exhibits in this proceeding that contain such information and notes taken by persons reviewing proprietary material, may be retained if they are maintained in a secure place such that no distribution of the information to unauthorized individuals will occur. Within such time period, each party receiving Proprietary Documents shall submit to counsel for Entergy an affidavit stating that, to the best of its knowledge, all Proprietary Documents have been returned or destroyed, or, if filings, transcripts, exhibits, or notes in this proceeding, will be maintained in a secure place such that no distribution of the information to unauthorized individuals will occur. To the extent that such filings, transcripts, exhibits, and notes are not returned or destroyed, they shall remain subject to the provisions of this protective order.15. Counsel, consultants, employees, or any other individuals representing a party whohave reason to believe that Proprietary Documents may have been lost or misplaced or may have otherwise become available to unauthorized persons during the pendency of this proceeding shall notify the Board and counsel for Entergy promptly of their concerns and the reasons for them.16. Any violation of the terms of this protective order or a non-disclosure agreementexecuted in furtherance of this order may result in the imposition of such sanctions as the Board may deem appropriate, including but not limited to referral of the violation to appropriate bar associations and/or other disciplinary authorities.17. Each party governed by this protective order has the right to seek changes in it asappropriate from the Board or the Commission. 18. Nothing in this protective order shall be deemed to preclude any party from 10 10 Copies of this order were sent this date by Internet e-mail transmission to counsel for(1) licensees Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc.;(2) intervenors Vermont Department of Public Service and New England Coalition of Brattleboro, Vermont; (3) the Staff and (4) the State of New Hampshire.independently seeking, through discovery in any other administrative or judicial proceeding, anyProprietary Document or information produced in this proceeding under this protective order. In addition, if documents identified in this proceeding as proprietary or some or all of the information contained in such documents, comes into the possession of or is known by any party independently of the proprietary document produced in this proceeding, use of that document or information in this proceeding, without compliance with the terms of this protective order, shall not be a violation of the terms of this protective order. The party asserting independent knowledge of the contents of proprietary documents or independent access to such documents, shall have the burden of proving that such information was independently obtained in the event that Entergy asserts that disclosure of such information or document was a violation of this Order.19. The Board may alter or amend this protective order as circumstances warrant atany time during the course of this proceeding.It is so ORDERED.FOR THE ATOMIC SAFETY AND LICENSING BOARD 10/RA/___________________________Alex S. Karlin, ChairmanADMINISTRATIVE JUDGERockville, MarylandJanuary 12, 2007 ATTACHMENT AUNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONIn the Matter ofENTERGY NUCLEAR VERMONT YANKEE,L.L.C.,

and ENTERGY NUCLEAR OPERATIONS, INC.(Vermont Yankee Nuclear Power Station)Docket No. 50-271-LRASLBP No. 06-849-03-LR NON-DISCLOSURE AGREEMENTUnder penalty of perjury, I hereby certify that: access to Proprietary Documents isprovided to me pursuant to the terms and restrictions of the Atomic Safety and Licensing Board's protective order, dated January 12, 2007, in this proceeding; that I have been given a copy and have read said protective order; and that I agree to be bound by it. I understand and agree that Proprietary Documents, their contents, or any notes or other memoranda summarizing or otherwise describing their contents, or any form of information that derives from the Proprietary Documents and copies or discloses the contents of the Proprietary Documents, shall be held in confidence and shall not be disclosed to anyone except in accordance with that protective order. I acknowledge that a violation of this agreement or the protective order, which incorporates the terms of this agreement, constitutes a violation of an order of the Nuclear Regulatory Commission and may result in the imposition of such sanctions as the Board or the Commission may deem to be appropriate.

2WHEREFORE, I do solemnly agree to protect such Proprietary Documents, and theircontents, as may be disclosed to me in this NRC proceeding, in accordance with the terms of this agreement.Name (printed): _________________________________________________________Title: _________________________________________________________________Employed by or Representing: _____________________________________________

Signature: _____________________________________________________________

Date: _________________________________________________________________

3UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONIn the Matter of ) )ENTERGY NUCLEAR VERMONT YANKEE, LLC,)

)and))ENTERGY NUCLEAR OPERATIONS, INC.)Docket No. 50-271-LR

)(Vermont Yankee Nuclear Power Station))CERTIFICATE OF SERVICEI hereby certify that copies of the foregoing LB ORDER (PROTECTIVE ORDER GOVERNINGNON-DISCLOSURE OF CERTAIN DOCUMENTS CLAIMED TO BE PROPRIETARY) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Administrative JudgeAlex S. Karlin, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Administrative JudgeRichard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Administrative JudgeThomas S. Elleman Atomic Safety and Licensing Board Panel 5207 Creedmoor Rd., #101 Raleigh, NC 27612Mitzi A. Young, Esq.Steven C. Hamrick, Esq.

David E. Roth, Esq.

Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Ronald A. Shems, Esq.Karen Tyler, Esq.

Shems Dunkiel Kassel & Saunders, PLLC 91 College Street Burlington, VT 05401 2Docket No. 50-271-LRLB ORDER (PROTECTIVE ORDER GOVERNING NON-DISCLOSURE OF CERTAIN DOCUMENTS CLAIMED TO BE PROPRIETARY) Sarah Hofmann, Esq.Director for Public Advocacy Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620-2601Anthony Z. Roisman, Esq.National Legal Scholars Law Firm 84 East Thetford Rd.

Lyme, NH 03768Matthew Brock, Esq.Assistant Attorney General Office of the Massachusetts Attorney General Environmental Protection Division One Ashburton Place, Room 1813 Boston, MA 02108-1598Diane Curran, Esq.Harmon, Curran, Spielberg,

& Eisenberg, L.L.P.

1726 M Street, NW, Suite 600 Washington, DC 20036Callie B. Newton, ChairGail MacArthur Lucy Gratwick Town of Marlboro SelectBoard P.O. Box 518 Marlboro, VT 05344Dan MacArthur, DirectorTown of Marlboro Emergency Management P.O. Box 30 Marlboro, VT 05344David R. Lewis, Esq.Matias F. Travieso-Diaz, Esq.

Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128Jennifer J. Patterson, Esq.Office of the New Hampshire Attorney General 33 Capitol Street Concord, NH 03301[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the CommissionDated at Rockville, Maryland,this 12 th day of January 2007