ML15251A351

Westinghouse Electric Company Motion for Leave to File Amicus Curiae Brief

ML15251A351
Person / Time
Site:	Indian Point
Issue date:	09/08/2015
From:	Coldren R, Cowan B, Repka D, Spadacene J Westinghouse, Winston & Strawn, LLP
To:	NRC/OCM
SECY RAS
Shared Package
ML15251A350	List: ML15251A351 ML15251A352
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 28260
Download: ML15251A351 (5)

Text

September 8, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: )

)

Docket Nos. 50-247-LR and ENTERGY NUCLEAR OPERATIONS, )

50-286-LR INC. )

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

WESTINGHOUSE ELECTRIC COMPANY MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF Pursuant to 10 C.F.R. §§ 2.323(a) and 2.315(d), Westinghouse Electric Company LLC (Westinghouse) hereby moves the Commission for leave to file the attached brief as amicus curiae in this proceeding. The attached brief addresses the petition for interlocutory review filed by the State of New York (State) on August 14, 2015. The States petition seeks review and reversal of the Atomic Safety and Licensing Board Order of July 20, 2015, denying the States motion to withdraw Westinghouses proprietary designation on five documents.

The documents were disclosed to the State by Entergy Nuclear Operations, Inc.

(Entergy), and were provided to the State under a protective order. The Licensing Board denied the States motion. The Licensing Board determined that there would be no public interest in the release of one document (a PWR Owners Group internal memorandum) and that the documents are entitled to be protected as confidential commercial information under 10 C.F.R. § 2.390(a)(4). Westinghouse supports the Licensing Boards decision on this issue and opposes the States petition for interlocutory review.

1

In the proceeding below Westinghouse sought leave from the Licensing Board to appear specially to protect its proprietary information.1 The Licensing Board allowed Westinghouse to participate in an oral argument on May 14, 2015, to address the proprietary designations made by Westinghouse for the five documents at issue. Further, the Board allowed Entergy and Westinghouse to file a joint brief on the issue of Westinghouses proprietary designations for the documents and the legal standards for public release of such documents.2 Westinghouse did not seek, and was not granted, party status in this proceeding.

Under NRC regulations and practice, non-parties have been allowed to file amicus briefs on issues affecting their interests and the Commission has considered those briefs.3 Westinghouse recognizes that it is not a party to this proceeding and therefore does not have, as a matter of right under 10 C.F.R. § 2.341(b)(3) (allowing parties to a proceeding to answer a petition for review), an opportunity to respond to the States petition for interlocutory review.

Accordingly, the present circumstances are appropriate for Westinghouse to be granted leave to file a brief as amicus curiae.

1 Motion of Westinghouse Electric Company LLC to Appear Specially in Connection with State of New York Motion to Strike Proprietary Designations of Westinghouse and PWROG Proprietary Documents, dated May 5, 2015.

2 Joint Brief of Entergy and Westinghouse Regarding Proprietary Documents, June 4, 2015 (Joint Brief).

3 Calvert Cliffs 3 Nuclear Project, LLC & UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-13-04, 77 NRC 101, 103 n. 9 (2013)

(denying a petition for review, noting that as a matter of discretion the Commission reviewed the amicus filings); Entergy Nuclear Vt. Yankee LLC and Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 6 n.16 (2010); Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), ALAB-862, 25 NRC 144, 150-51 (1987); Gen. Pub. Utils. Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23, 44 NRC 143, 161 (1966).

2

As explained in the Joint Brief filed with the Licensing Board, and in the declarations attached to that brief (executed by Westinghouse personnel), all five of the documents at issue were prepared by Westinghouse and designated as confidential commercial information by Westinghouse. Public release of the documents would result in competitive injury to Westinghouse. The documents are available to the State for use in the proceeding under a protective order, and there is no opposition by Entergy (or Westinghouse) to the disclosure under the protective order or to the protective order itself. Westinghouse is the entity with the direct interest in protecting the confidential commercial information at issue.

Westinghouses amicus brief addresses why interlocutory review is not warranted and why the petition for review should not be granted. The amicus brief does not inject any new issues into the proceeding beyond those raised by the State (i.e., whether Westinghouses proprietary designation on the documents should be withdrawn). And the brief provides Westinghouses unique perspective (that cannot be represented by any party in the proceeding) on the issues raised by the State.

In accordance with 10 C.F.R. § 2.323(b), counsel for Westinghouse certifies that he has contacted counsel for the parties in this proceeding to seek consent to the motion.

Counsel for Entergy and for the NRC Staff have authorized Westinghouse to state that they do not object to Westinghouses motion. Counsel for the State responded that the State would not object to Westinghouses motion to submit an amicus brief so long as Westinghouse does not object to the State submitting a response to Westinghouses brief. Westinghouse does not object to a State reply in accordance with 10 C.F.R. § 2.341(b)(3).

3

For the reasons discussed above, Westinghouse respectfully requests that the Commission grant its request to file a brief as amicus curiae in opposition to the States petition for interlocutory review.

Respectfully submitted,

/s/ signed electronically by David A. Repka Joseph Spadacene, Esq. David A. Repka, Esq.

Richard J. Coldren, Esq. Winston & Strawn LLP Westinghouse Electric Company LLC 1700 K Street, NW 1000 Westinghouse Drive Washington, DC 20006 Cranberry Township, PA 16066 E-mail: drepka@winston.com E-mail: spadacjc@westinghouse.com E-mail: coldrerj@westinghouse.com Barton Z. Cowan, Esq.

307 S. Dithridge Street, #814 Pittsburgh, PA 15213 E-mail: teribart61@aol.com Counsel for Westinghouse Electric Company LLC Dated at Washington, DC this 8th day of September 2015 4

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: )

)

Docket Nos. 50-247-LR and ENTERGY NUCLEAR OPERATIONS, )

50-286-LR INC. )

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the WESTINGHOUSE ELECTRIC COMPANY MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF and AMICUS CURIAE BRIEF OF WESTINGHOUSE ELECTRIC COMPANY OPPOSING NEW YORK PETITION FOR INTERLOCUTORY REVIEW in the captioned proceeding have been served via the Electronic Information Exchange (EIE) this 8th day of September 2015, which to the best of my knowledge resulted in transmittal of the foregoing to those on the EIE Service List for the captioned proceeding.

/s/ signed electronically by Victoria L. Hsia Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006-3817 Counsel for Westinghouse Electric Company LLC DC:779271.3