ML15348A446

Attachment 12 - IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation

ML15348A446
Person / Time
Site:	Indian Point
Issue date:	12/14/2015
From:	State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML15348A433	List: ML15348A434 ML15348A435 ML15348A436 ML15348A437 ML15348A438 ML15348A439 ML15348A440 ML15348A441 ML15348A442 ML15348A443 ML15348A444 ML15348A445 ML15348A446
References
RAS 28663, ASLBP 07-858-03-LR-BD01, 50-247-LR, 50-286-LR
Download: ML15348A446 (8)

Text

DECEMBER 14, 2015 EMAIL THREAD BETWEEN L KWONG AND S TURK RE: IP -- 2015 11 12 NYS NOTICE OF OBJECTION TO PROPRIETARY DESIGNATION ATTACHMENT 12 to NYS DECLARATION

From: Turk, Sherwin To: Lisa S. Kwong Cc: "Bessette, Paul M."; "Sutton, Kathryn M."; Harris, Brian; Roth(OGC), David; "Deborah Brancato (DBrancato@riverkeeper.org)"; John J. Sipos; Mihir Desai; "Kuyler, Raphael Philip"; Siobhan C. Blank; Teresa Manzi; Roth(OGC), David

Subject:

RE: RE: RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation Date: Monday, December 14, 2015 3:40:43 PM Hi Lisa, Thanks for the clarification.

Please represent our position as follows:

The NRC Staff opposes the motion on the grounds that it lacks substantial basis and is untimely. Also, to the extent that the motion is based upon the States recent submission of proposed redactions to Counsel for Westinghouse/Entergy, the Staff believes insufficient time was provided for them to review the proposed redactions and to engage in meaningful consultations prior to filing the proposed motion.

Thank you.

Sherwin Sherwin E. Turk Special Counsel for Litigation Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Mail Stop O15-D21 Rockville, MD 20852 (301) 415-1533 From: Lisa S. Kwong [1]

Sent: Monday, December 14, 2015 3:12 PM To: Turk, Sherwin; 'Kuyler, Raphael Philip' Cc: 'Bessette, Paul M.'; 'Sutton, Kathryn M.'; Harris, Brian; Roth(OGC), David; 'Deborah Brancato (DBrancato@riverkeeper.org)'; John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

[External_Sender] RE: RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation Sherwin:

The States two previous motions addressed earlier versions of the six documents which are listed on the November 12, 2015 Objection. The current motion is necessitated by Entergys late submission -- and the Boards admission during the hearing -- of these documents as revised

hearing exhibits.

Lisa S. Kwong Assistant Attorney General Environmental Protection Bureau New York State Office of the Attorney General The Capitol Albany, NY 12224 Tel: 518-776-2422 Fax: 518-650-9363 Lisa.Kwong@ny.ag.gov From: Turk, Sherwin [2]

Sent: Monday, December 14, 2015 2:54 PM To: Lisa S. Kwong; 'Kuyler, Raphael Philip' Cc: 'Bessette, Paul M.'; 'Sutton, Kathryn M.'; Harris, Brian; Roth(OGC), David; 'Deborah Brancato (DBrancato@riverkeeper.org)'; John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

RE: RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation

Lisa, Im not sure I understand what you intend to file. Your E-mail message referred to six revised Westinghouse documents listed in the States November 12, 2015 Notice of Objection. Did your previous motions to compel public disclosure address those six documents? Does the State intend to file a motion to compel public disclosure of additional Westinghouse documents, beyond those that were addressed in your two previous motions?

Sherwin E. Turk Special Counsel for Litigation Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Mail Stop O15-D21 Rockville, MD 20852 (301) 415-1533 From: Lisa S. Kwong [3]

Sent: Monday, December 14, 2015 2:37 PM To: 'Kuyler, Raphael Philip'; Turk, Sherwin Cc: 'Bessette, Paul M.'; 'Sutton, Kathryn M.'; Harris, Brian; Roth(OGC), David; 'Deborah Brancato (DBrancato@riverkeeper.org)'; John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

[External_Sender] RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation

Ray,

This follows-up on our call earlier today. During this mornings call, you confirmed that you were able to access (with some trouble-shooting assistance from your colleague, Grant Eskelson) the information contained in the CD we sent to you by overnight mail on December 10, 2015. Im relieved that we were able to overcome that technical difficulty without IT assistance.

I indicated during our conversation that, in light of the States deadline for filing a motion under the Protective Order, the State was planning to a motion to compel public disclosure of the six revised Westinghouse documents listed in the States November 12, 2015 Notice of Objection.

Based on your comment that Entergy and Westinghouse would not have sufficient time to fully consider the States proposal in advance of the States motion, I understood that Entergy would object to the States proposed motion. Please let me know if my understanding is incorrect.

The State appreciates your concern about the need for additional time to evaluate the States proposal. We will be filing our motion later today in order to preserve the States right to challenge Westinghouses proprietary designations pending Entergy/Westinghouses review of the proposed redactions, with the understanding and hope that the parties may reach a mutual resolution of this issue without further Board intervention. We would, of course, seek to apprise the Board of the outcome of our efforts to find common ground.

Thank you, Lisa S. Kwong Assistant Attorney General Environmental Protection Bureau New York State Office of the Attorney General The Capitol Albany, NY 12224 Tel: 518-776-2422 Fax: 518-650-9363 Lisa.Kwong@ny.ag.gov From: Lisa S. Kwong Sent: Monday, December 14, 2015 8:25 AM To: 'Kuyler, Raphael Philip'; 'sherwin.turk@nrc.gov' Cc: Bessette, Paul M.; Sutton, Kathryn M.; 'Harris, Brian (Brian.Harris@nrc.gov)'; 'Roth(OGC), David (David.Roth@nrc.gov)'; 'Deborah Brancato (DBrancato@riverkeeper.org)'; John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation

Ray, Im told that we have had similar difficulties with CDs containing Entergys monthly disclosures.

Heres a fix that has worked for us: copy the zipped folder to the desktop to unzip/extract the files and then cut and paste the extracted files to the appropriate folder(s) onto the server. Please let me know if that resolves the problem. If not, we can call in IT or set up a cloud-based file exchange program. Sorry for the trouble, but Im fairly confident we can get this worked out this

morning.

As to your question regarding our reservation of rights, that statement was meant to cover the situation where the parties are unable to agree on appropriate redactions for the 20 documents.

In that instance, the State reserves its right to submit the proposed redactions to the Board, file a third motion to address the States November 12, 2015 objection, and/or seek appellate review of any adverse determinations regarding these issues.

Lisa S. Kwong Assistant Attorney General Environmental Protection Bureau New York State Office of the Attorney General The Capitol Albany, NY 12224 Tel: 518-776-2422 Fax: 518-650-9363 Lisa.Kwong@ny.ag.gov From: Kuyler, Raphael Philip [4]

Sent: Friday, December 11, 2015 5:39 PM To: Lisa S. Kwong; 'sherwin.turk@nrc.gov' Cc: Bessette, Paul M.; Sutton, Kathryn M.; 'Harris, Brian (Brian.Harris@nrc.gov)'; 'Roth(OGC), David (David.Roth@nrc.gov)'; 'Deborah Brancato (DBrancato@riverkeeper.org)'; John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation

Lisa, I am sorry we missed your call this afternoon. As I mentioned earlier, we received your CD. We will review the CD and also pass it on to Westinghouse for its review. As I noted, we were unable to open or extract any files, so we will need your assistance on Monday in doing so. As you suggested, I will call you Monday morning.

By our calculations, any motion regarding the November 12 objection would be due this Monday, December 14. We will, of course, not have sufficient time to review the States new proposed redactions in advance of that deadline. In addition, we do not entirely understand the following statement in your letter: The State reserves its right to pursue public disclosure of all or parts of each of these 20 documents depending on Entergy, Westinghouse, Staff, and Riverkeepers position. Given the Board and Commission rulings against the State on 14 of the 20 documents, please clarify the States intent and the meaning of this statement.

Regards, Ray P. Kuyler Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW l Washington, DC 20004 Direct: +1.202.739.5146 l Main: 202.739.3000 l Fax: 202.739.3001 rkuyler@morganlewis.com l www.morganlewis.com Assistant: Rhonda D. Rollerson l 202.739.5157 l rrollerson@morganlewis.com

From: Lisa S. Kwong [5]

Sent: Friday, December 11, 2015 8:51 AM To: Kuyler, Raphael Philip; 'sherwin.turk@nrc.gov' Cc: Bessette, Paul M.; Sutton, Kathryn M.; 'Harris, Brian (Brian.Harris@nrc.gov)'; 'Roth(OGC), David (David.Roth@nrc.gov)'; 'Deborah Brancato (DBrancato@riverkeeper.org)'; John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation Counsel:

Please see the attached correspondence which was sent by overnight mail yesterday.

Lisa S. Kwong Assistant Attorney General Environmental Protection Bureau New York State Office of the Attorney General The Capitol Albany, NY 12224 Tel: 518-776-2422 Fax: 518-650-9363 Lisa.Kwong@ny.ag.gov From: Lisa S. Kwong Sent: Wednesday, December 02, 2015 11:47 AM To: 'Kuyler, Raphael Philip'; sherwin.turk@nrc.gov Cc: Bessette, Paul M.; Sutton, Kathryn M.; Harris, Brian (Brian.Harris@nrc.gov); Roth(OGC), David (David.Roth@nrc.gov); Deborah Brancato (DBrancato@riverkeeper.org); John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation Ray:

Thank you for your response to the States November 12, 2015, Notice of Objection. The State acknowledges the ASLBs November 16 denial of the States October 19 motion challenging Entergy/Westinghouses proprietary designations for certain documents, but that does not end the dispute. We disagree that the issue raised in the November 12 objection -- that is, the over-broad use of proprietary designations -- is moot. Although the hearing has concluded, the hearing record can still be updated with redacted versions of proprietary documents.

First, with respect to the documents identified in the States October 19 motion, the Board, during the hearing, specifically invited the State to propose redactions for Westinghouses consideration.

We are in the midst of developing a proposed set of redacted documents and expect to be able to forward it to you shortly. Second, with respect to the States current objection that is directed to six hearing exhibits - five revised and one new - which were filed by Entergy on November 11, the Boards November 16 order does not render the States objection moot. These six documents supplement, or are in addition to, documents which were the subject of the States prior challenges. As such, these documents are outside the scope of the Boards July 20 and November

16 rulings on the States motions to remove proprietary designations.

We are hopeful that the parties can arrive at a pathway forward to enable public disclosure of vital information while affording proper protection for truly proprietary information. If, however, the parties are unable to agree, the State intends to file a motion pursuant to Paragraph D of the 2009 Protective Order so as to preserve its continuing objection to Entergy/Westinghouses improper withholding of these documents from public access.

Sherwin:

Although we have not heard from you on this, the State assumes that Staff does not agree with the States position. If that is not the case, please advise as soon as possible as to Staffs position on this issue.

Thank you.

Lisa S. Kwong Assistant Attorney General Environmental Protection Bureau New York State Office of the Attorney General The Capitol Albany, NY 12224 Tel: 518-776-2422 Fax: 518-650-9363 Lisa.Kwong@ny.ag.gov From: Kuyler, Raphael Philip [6]

Sent: Tuesday, November 24, 2015 10:10 AM To: Lisa S. Kwong; sherwin.turk@nrc.gov Cc: Bessette, Paul M.; Sutton, Kathryn M.; Harris, Brian (Brian.Harris@nrc.gov); Roth(OGC), David (David.Roth@nrc.gov); Deborah Brancato (DBrancato@riverkeeper.org); John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation Good morning, Lisa and Deborah.

Entergy believes that New Yorks November 12 Objection has effectively been rendered moot by the subsequent ASLB decision at last weeks hearing denying the second motion on the subject of Westinghouse proprietary documents. Nevertheless, Entergy reiterates that all of the new documents listed in the November 12 objection are Westinghouse fatigue calculations or reports.

These documents are maintained in confidence by Westinghouse and contain information which, if released, likely would lead to substantial competitive harm to the company, for all of the reasons explained in Entergys and Westinghouses filings before the Board and Commission in response to New Yorks two prior motions. Therefore, it is Westinghouses and Entergys position that these new documents are proprietary and should remain subject to the terms of the Protective Order.

Regards,

Ray P. Kuyler Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW l Washington, DC 20004 Direct: +1.202.739.5146 l Main: 202.739.3000 l Fax: 202.739.3001 rkuyler@morganlewis.com l www.morganlewis.com Assistant: Rhonda D. Rollerson l 202.739.5157 l rrollerson@morganlewis.com From: Lisa S. Kwong [7]

Sent: Thursday, November 12, 2015 1:02 PM To: Kuyler, Raphael Philip; sherwin.turk@nrc.gov Cc: Bessette, Paul M.; Sutton, Kathryn M.; Harris, Brian (Brian.Harris@nrc.gov); Roth(OGC), David (David.Roth@nrc.gov); Deborah Brancato (DBrancato@riverkeeper.org); John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation Good afternoon, Ray and Sherwin. Attached please find a copy of the States November 12, 2015 Notice of Objection to Proprietary and/or Confidential Designations for six Westinghouse documents disclosed by Entergy on November 4, 2015 and produced on November 6, 2015. Please let me or Mihir Desai know when you are available to discuss.

Thank you.

Lisa S. Kwong Assistant Attorney General Environmental Protection Bureau New York State Office of the Attorney General The Capitol Albany, NY 12224 Tel: 518-776-2422 Fax: 518-650-9363 Lisa.Kwong@ny.ag.gov IMPORTANT NOTICE: This e-mail, including any attachments, may be confidential, privileged or otherwise legally protected. It is intended only for the addressee. If you received this e-mail in error or from someone who was not authorized to send it to you, do not disseminate, copy or otherwise use this e-mail or its attachments. Please notify the sender immediately by reply e-mail and delete the e-mail from your system.

DISCLAIMER This e-mail message is intended only for the personal use of the recipient(s) named above. This message may be an attorney-client communication and as such privileged and confidential and/or it may include attorney work product.

If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.

DECEMBER 14, 2015 EMAIL THREAD BETWEEN L KWONG AND S TURK RE: IP -- 2015 11 12 NYS NOTICE OF OBJECTION TO PROPRIETARY DESIGNATION ATTACHMENT 12 to NYS DECLARATION

From: Turk, Sherwin To: Lisa S. Kwong Cc: "Bessette, Paul M."; "Sutton, Kathryn M."; Harris, Brian; Roth(OGC), David; "Deborah Brancato (DBrancato@riverkeeper.org)"; John J. Sipos; Mihir Desai; "Kuyler, Raphael Philip"; Siobhan C. Blank; Teresa Manzi; Roth(OGC), David

Subject:

RE: RE: RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation Date: Monday, December 14, 2015 3:40:43 PM Hi Lisa, Thanks for the clarification.

Please represent our position as follows:

The NRC Staff opposes the motion on the grounds that it lacks substantial basis and is untimely. Also, to the extent that the motion is based upon the States recent submission of proposed redactions to Counsel for Westinghouse/Entergy, the Staff believes insufficient time was provided for them to review the proposed redactions and to engage in meaningful consultations prior to filing the proposed motion.

Thank you.

Sherwin Sherwin E. Turk Special Counsel for Litigation Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Mail Stop O15-D21 Rockville, MD 20852 (301) 415-1533 From: Lisa S. Kwong [8]

Sent: Monday, December 14, 2015 3:12 PM To: Turk, Sherwin; 'Kuyler, Raphael Philip' Cc: 'Bessette, Paul M.'; 'Sutton, Kathryn M.'; Harris, Brian; Roth(OGC), David; 'Deborah Brancato (DBrancato@riverkeeper.org)'; John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

[External_Sender] RE: RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation Sherwin:

The States two previous motions addressed earlier versions of the six documents which are listed on the November 12, 2015 Objection. The current motion is necessitated by Entergys late submission -- and the Boards admission during the hearing -- of these documents as revised

hearing exhibits.

Lisa S. Kwong Assistant Attorney General Environmental Protection Bureau New York State Office of the Attorney General The Capitol Albany, NY 12224 Tel: 518-776-2422 Fax: 518-650-9363 Lisa.Kwong@ny.ag.gov From: Turk, Sherwin [9]

Sent: Monday, December 14, 2015 2:54 PM To: Lisa S. Kwong; 'Kuyler, Raphael Philip' Cc: 'Bessette, Paul M.'; 'Sutton, Kathryn M.'; Harris, Brian; Roth(OGC), David; 'Deborah Brancato (DBrancato@riverkeeper.org)'; John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

RE: RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation

Lisa, Im not sure I understand what you intend to file. Your E-mail message referred to six revised Westinghouse documents listed in the States November 12, 2015 Notice of Objection. Did your previous motions to compel public disclosure address those six documents? Does the State intend to file a motion to compel public disclosure of additional Westinghouse documents, beyond those that were addressed in your two previous motions?

Sherwin E. Turk Special Counsel for Litigation Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Mail Stop O15-D21 Rockville, MD 20852 (301) 415-1533 From: Lisa S. Kwong [10]

Sent: Monday, December 14, 2015 2:37 PM To: 'Kuyler, Raphael Philip'; Turk, Sherwin Cc: 'Bessette, Paul M.'; 'Sutton, Kathryn M.'; Harris, Brian; Roth(OGC), David; 'Deborah Brancato (DBrancato@riverkeeper.org)'; John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

[External_Sender] RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation

Ray,

This follows-up on our call earlier today. During this mornings call, you confirmed that you were able to access (with some trouble-shooting assistance from your colleague, Grant Eskelson) the information contained in the CD we sent to you by overnight mail on December 10, 2015. Im relieved that we were able to overcome that technical difficulty without IT assistance.

I indicated during our conversation that, in light of the States deadline for filing a motion under the Protective Order, the State was planning to a motion to compel public disclosure of the six revised Westinghouse documents listed in the States November 12, 2015 Notice of Objection.

Based on your comment that Entergy and Westinghouse would not have sufficient time to fully consider the States proposal in advance of the States motion, I understood that Entergy would object to the States proposed motion. Please let me know if my understanding is incorrect.

The State appreciates your concern about the need for additional time to evaluate the States proposal. We will be filing our motion later today in order to preserve the States right to challenge Westinghouses proprietary designations pending Entergy/Westinghouses review of the proposed redactions, with the understanding and hope that the parties may reach a mutual resolution of this issue without further Board intervention. We would, of course, seek to apprise the Board of the outcome of our efforts to find common ground.

Thank you, Lisa S. Kwong Assistant Attorney General Environmental Protection Bureau New York State Office of the Attorney General The Capitol Albany, NY 12224 Tel: 518-776-2422 Fax: 518-650-9363 Lisa.Kwong@ny.ag.gov From: Lisa S. Kwong Sent: Monday, December 14, 2015 8:25 AM To: 'Kuyler, Raphael Philip'; 'sherwin.turk@nrc.gov' Cc: Bessette, Paul M.; Sutton, Kathryn M.; 'Harris, Brian (Brian.Harris@nrc.gov)'; 'Roth(OGC), David (David.Roth@nrc.gov)'; 'Deborah Brancato (DBrancato@riverkeeper.org)'; John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation

Ray, Im told that we have had similar difficulties with CDs containing Entergys monthly disclosures.

Heres a fix that has worked for us: copy the zipped folder to the desktop to unzip/extract the files and then cut and paste the extracted files to the appropriate folder(s) onto the server. Please let me know if that resolves the problem. If not, we can call in IT or set up a cloud-based file exchange program. Sorry for the trouble, but Im fairly confident we can get this worked out this

morning.

As to your question regarding our reservation of rights, that statement was meant to cover the situation where the parties are unable to agree on appropriate redactions for the 20 documents.

In that instance, the State reserves its right to submit the proposed redactions to the Board, file a third motion to address the States November 12, 2015 objection, and/or seek appellate review of any adverse determinations regarding these issues.

Lisa S. Kwong Assistant Attorney General Environmental Protection Bureau New York State Office of the Attorney General The Capitol Albany, NY 12224 Tel: 518-776-2422 Fax: 518-650-9363 Lisa.Kwong@ny.ag.gov From: Kuyler, Raphael Philip [11]

Sent: Friday, December 11, 2015 5:39 PM To: Lisa S. Kwong; 'sherwin.turk@nrc.gov' Cc: Bessette, Paul M.; Sutton, Kathryn M.; 'Harris, Brian (Brian.Harris@nrc.gov)'; 'Roth(OGC), David (David.Roth@nrc.gov)'; 'Deborah Brancato (DBrancato@riverkeeper.org)'; John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation

Lisa, I am sorry we missed your call this afternoon. As I mentioned earlier, we received your CD. We will review the CD and also pass it on to Westinghouse for its review. As I noted, we were unable to open or extract any files, so we will need your assistance on Monday in doing so. As you suggested, I will call you Monday morning.

By our calculations, any motion regarding the November 12 objection would be due this Monday, December 14. We will, of course, not have sufficient time to review the States new proposed redactions in advance of that deadline. In addition, we do not entirely understand the following statement in your letter: The State reserves its right to pursue public disclosure of all or parts of each of these 20 documents depending on Entergy, Westinghouse, Staff, and Riverkeepers position. Given the Board and Commission rulings against the State on 14 of the 20 documents, please clarify the States intent and the meaning of this statement.

Regards, Ray P. Kuyler Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW l Washington, DC 20004 Direct: +1.202.739.5146 l Main: 202.739.3000 l Fax: 202.739.3001 rkuyler@morganlewis.com l www.morganlewis.com Assistant: Rhonda D. Rollerson l 202.739.5157 l rrollerson@morganlewis.com

From: Lisa S. Kwong [12]

Sent: Friday, December 11, 2015 8:51 AM To: Kuyler, Raphael Philip; 'sherwin.turk@nrc.gov' Cc: Bessette, Paul M.; Sutton, Kathryn M.; 'Harris, Brian (Brian.Harris@nrc.gov)'; 'Roth(OGC), David (David.Roth@nrc.gov)'; 'Deborah Brancato (DBrancato@riverkeeper.org)'; John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation Counsel:

Please see the attached correspondence which was sent by overnight mail yesterday.

Lisa S. Kwong Assistant Attorney General Environmental Protection Bureau New York State Office of the Attorney General The Capitol Albany, NY 12224 Tel: 518-776-2422 Fax: 518-650-9363 Lisa.Kwong@ny.ag.gov From: Lisa S. Kwong Sent: Wednesday, December 02, 2015 11:47 AM To: 'Kuyler, Raphael Philip'; sherwin.turk@nrc.gov Cc: Bessette, Paul M.; Sutton, Kathryn M.; Harris, Brian (Brian.Harris@nrc.gov); Roth(OGC), David (David.Roth@nrc.gov); Deborah Brancato (DBrancato@riverkeeper.org); John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation Ray:

Thank you for your response to the States November 12, 2015, Notice of Objection. The State acknowledges the ASLBs November 16 denial of the States October 19 motion challenging Entergy/Westinghouses proprietary designations for certain documents, but that does not end the dispute. We disagree that the issue raised in the November 12 objection -- that is, the over-broad use of proprietary designations -- is moot. Although the hearing has concluded, the hearing record can still be updated with redacted versions of proprietary documents.

First, with respect to the documents identified in the States October 19 motion, the Board, during the hearing, specifically invited the State to propose redactions for Westinghouses consideration.

We are in the midst of developing a proposed set of redacted documents and expect to be able to forward it to you shortly. Second, with respect to the States current objection that is directed to six hearing exhibits - five revised and one new - which were filed by Entergy on November 11, the Boards November 16 order does not render the States objection moot. These six documents supplement, or are in addition to, documents which were the subject of the States prior challenges. As such, these documents are outside the scope of the Boards July 20 and November

16 rulings on the States motions to remove proprietary designations.

We are hopeful that the parties can arrive at a pathway forward to enable public disclosure of vital information while affording proper protection for truly proprietary information. If, however, the parties are unable to agree, the State intends to file a motion pursuant to Paragraph D of the 2009 Protective Order so as to preserve its continuing objection to Entergy/Westinghouses improper withholding of these documents from public access.

Sherwin:

Although we have not heard from you on this, the State assumes that Staff does not agree with the States position. If that is not the case, please advise as soon as possible as to Staffs position on this issue.

Thank you.

Lisa S. Kwong Assistant Attorney General Environmental Protection Bureau New York State Office of the Attorney General The Capitol Albany, NY 12224 Tel: 518-776-2422 Fax: 518-650-9363 Lisa.Kwong@ny.ag.gov From: Kuyler, Raphael Philip [13]

Sent: Tuesday, November 24, 2015 10:10 AM To: Lisa S. Kwong; sherwin.turk@nrc.gov Cc: Bessette, Paul M.; Sutton, Kathryn M.; Harris, Brian (Brian.Harris@nrc.gov); Roth(OGC), David (David.Roth@nrc.gov); Deborah Brancato (DBrancato@riverkeeper.org); John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

RE: IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation Good morning, Lisa and Deborah.

Entergy believes that New Yorks November 12 Objection has effectively been rendered moot by the subsequent ASLB decision at last weeks hearing denying the second motion on the subject of Westinghouse proprietary documents. Nevertheless, Entergy reiterates that all of the new documents listed in the November 12 objection are Westinghouse fatigue calculations or reports.

These documents are maintained in confidence by Westinghouse and contain information which, if released, likely would lead to substantial competitive harm to the company, for all of the reasons explained in Entergys and Westinghouses filings before the Board and Commission in response to New Yorks two prior motions. Therefore, it is Westinghouses and Entergys position that these new documents are proprietary and should remain subject to the terms of the Protective Order.

Regards,

Ray P. Kuyler Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW l Washington, DC 20004 Direct: +1.202.739.5146 l Main: 202.739.3000 l Fax: 202.739.3001 rkuyler@morganlewis.com l www.morganlewis.com Assistant: Rhonda D. Rollerson l 202.739.5157 l rrollerson@morganlewis.com From: Lisa S. Kwong [14]

Sent: Thursday, November 12, 2015 1:02 PM To: Kuyler, Raphael Philip; sherwin.turk@nrc.gov Cc: Bessette, Paul M.; Sutton, Kathryn M.; Harris, Brian (Brian.Harris@nrc.gov); Roth(OGC), David (David.Roth@nrc.gov); Deborah Brancato (DBrancato@riverkeeper.org); John J. Sipos; Mihir Desai; Siobhan C. Blank; Teresa Manzi

Subject:

IP -- 2015 11 12 NYS Notice of Objection to Proprietary Designation Good afternoon, Ray and Sherwin. Attached please find a copy of the States November 12, 2015 Notice of Objection to Proprietary and/or Confidential Designations for six Westinghouse documents disclosed by Entergy on November 4, 2015 and produced on November 6, 2015. Please let me or Mihir Desai know when you are available to discuss.

Thank you.

Lisa S. Kwong Assistant Attorney General Environmental Protection Bureau New York State Office of the Attorney General The Capitol Albany, NY 12224 Tel: 518-776-2422 Fax: 518-650-9363 Lisa.Kwong@ny.ag.gov IMPORTANT NOTICE: This e-mail, including any attachments, may be confidential, privileged or otherwise legally protected. It is intended only for the addressee. If you received this e-mail in error or from someone who was not authorized to send it to you, do not disseminate, copy or otherwise use this e-mail or its attachments. Please notify the sender immediately by reply e-mail and delete the e-mail from your system.

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