ML090680871

Prairie Island Indian Community'S Motion for Protective Order and Non-Disclosure Agreement Regarding Proprietary Documents

ML090680871
Person / Time
Site:	Prairie Island
Issue date:	03/09/2009
From:	Mahowald P Prairie Island Indian Community
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-282-LR, 50-306-LR, ASLBP 08-871-01-LR-BD01, RAS 2831
Download: ML090680871 (16)

Text

March 9, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

) Docket Nos. 50-282-LR Northern States Power Co. ) 50-306-LR

)

(Prairie Island Nuclear Generating Plant, ) ASLBP No. 08-871-01-LR Units 1 and 2) )

PRAIRIE ISLAND INDIAN COMMUNITYS MOTION FOR PROTECTIVE ORDER AND NON-DISCLOSURE AGREEMENT REGARDING PROPRIETARY DOCUMENTS The Prairie Island Indian Community (PIIC) moves the Atomic Safety and Licensing Board (the Board) to issue a protective order governing the disclosure of proprietary documents in this proceeding. A proposed form of the Protective Order and accompanying non-disclosure agreement with the parties is attached. As required by 10 C.F.R. § 2.323(b), PIIC has consulted with the parties in a sincere effort to establish a mutually acceptable Protective Order, but has not been successful.

PIIC conditionally supports NSPMs Proposed Protective Order and Non-Disclosure Agreement, provided that the protective order includes a heightened designation of Highly Confidential - Attorneys Eyes Only for highly confidential and proprietary information, including certain PIIC proprietary documents and information that may be, and only to the extent such documents and information are, relevant to Contention 2.

NSPM has indicated that it foresees the need to obtain financial information from the PIIC, including the income of Treasure Island Resort & Casino and any other PIIC businesses, as well as the property values, in order to address the PIIC Contention 2. PIIC is prepared to disclose, subject to an appropriate protective order, certain information and analysis regarding

the valuation of PIICs land, homes, commercial buildings and infrastructure. At the present time, however, PIIC is not certain whether and to what extent information on the income of PIIC is relevant to or will otherwise affect the SAMA analysis and Site Restoration Study methodology. PIIC will continue its discussions with NSPM in an effort to reach an understanding and agreement on the specific financial information that might be relevant to Contention 2 to include in the Sandia Site Restoration Study methodology for calculating decontamination costs.

NSPM is correct that PIICs property values and other financial information (including the income from its gaming enterprise and other businesses) are highly confidential and not publicly available, and that PIIC is unwilling to produce or allow inspection of this information without assurances that any individual reviewing or inspecting the documents and information is bound by the terms and provisions of the Protective Order. If this information is relevant and necessary to Contention 2, PIIC seeks a limited and more restrictive disclosure of Highly Confidential - Attorneys Eyes Only to PIICs Counsel and NSPMs Outside Legal Counsel (and independent experts) on a need-to-know basis to first ascertain whether the requested information would impact the SAMA analysis or Site Restoration Study methodology. This information could also be provided to NRC Staff Counsel who sign the Non-Disclosure Agreement.

NSPM opposes this designation because it would present NSPM employees from performing work to assist in addressing Contention 2, and similarly would prevent NSPM management from reviewing work, including substantive motions or testimony, to address the contention. It would also prevent any disclosure to the NRC Staff. PIIC respectfully disagrees.

PIIC does not believe that PINGP employees or NSPM management needs to know, for 2

example, what PIICs revenues are. To the extent that this information is relevant and subject to disclosure, if at all, it is only in connection with the SAMA analysis or Site Restoration Study methodology. Moreover, consistent with the terms of the proposed protective order, any necessary motions or testimony could be prepared and filed without too much difficulty with the highly confidential information in accordance with Paragraphs 5 and 9 of the Protective Order, as is routinely done in litigation involving highly confidential and proprietary information such as this where the individuals with a need to know are specifically identified in the protective order.

The Board has previously issued Protective Orders and Non-Disclosure Agreements similar to PIICs proposed Protective Order and Non-Disclosure Agreement. See, e.g., Shaw Areva Mox Services (Mixed Oxide Fuel Fabrication Facility), Order (Adopting Protective Order)

(December 31, 2008). Accordingly, PIIC respectfully requests that the Board issue the proposed Protective Order and Non-Disclosure Agreement in their proposed form.

Respectfully Submitted,

/Signed electronically by Philip R. Mahowald/

Philip R. Mahowald PRAIRIE ISLAND INDIAN COMMUNITY 5636 Sturgeon Lake Road Welch, MN 55089 Tel. (651) 267-4006 Counsel for Prairie Island Indian Community Dated: March 9, 2009 3

PIIC Motion for Protective Order and Confidentiality Agreement (March 9, 2009)

Exhibit A - Proposed Protective Order and Non-Disclosure Agreement UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

William J. Froelich, Chairman Dr. Gary S. Arnold Dr. Thomas J. Hirons In the Matter of Docket No. 50-282-LR and 50-206-LR Northern States Power Co. (formerly Nuclear Management Company, LLC) ASLBP No. 08-871-01-LR (Prairie Island Nuclear Generating Plan, March __, 2009 Units 1 & 2)

Protective Order (Governing Non-Disclosure of Certain Documents Claimed to be Proprietary)

This protective order governs the disclosure and use in this proceeding of documents that Northern States Power Company (NSP) or the Prairie Island Indian Community (PIIC) claim contain trade secrets and/or privileged and confidential commercial and financial information (hereinafter Proprietary Documents).1 Pursuant to this protective order, counsel, witnesses, employees, consultants, and others 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 containing protected 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 by statute, 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, NRCs 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.

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PIIC Motion for Protective Order and Confidentiality Agreement (March 9, 2009)

Exhibit A - Proposed Protective Order and Non-Disclosure Agreement representing parties requesting copies of Proprietary Documents shall be permitted access to such documents upon the conditions set forth herein.

I. Procedural Posture Each party to this proceeding is required to disclose and provide all documents relevant to 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).

In furtherance of these disclosure obligations, after conferring with the other parties in this proceeding, PIIC developed a proposed protective order and non-disclosure agreement, which on March 9, 2009, PIIC moved the Board to issue.2 The proposal by the parties relates only to those documents that NSP or the PIIC claim are Proprietary Documents.

II. Terms and Conditions of Protective Order After 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 NSP or the PIIC believes that a document that it would otherwise be required to disclose contains information that qualifies for protection under 10 C.F.R. § 2.390(a)(4) and (b)(4)(i)-(v), then such party may designate it as a Proprietary document on its privilege log and it shall be protected in accordance with the terms and conditions 2

Prairie Island Indian Communitys Protective Order and Non-Disclosure Agreement Regarding Proprietary Documents (March 9, 2009).

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PIIC Motion for Protective Order and Confidentiality Agreement (March 9, 2009)

Exhibit A - Proposed Protective Order and Non-Disclosure Agreement of this order. Such documents shall hereinafter be referred to as Proprietary Documents. The category of Proprietary Documents labeled Highly Confidential -

For Attorneys Eyes Only shall refer to all material deemed by the producing party to be highly sensitive and to require restricted access and use.

2. Upon request of another party, the party claiming protected status for a Proprietary Document shall provide an unredacted copy of such document to the duly authorized representatives of the requesting party if such representatives have signed the non-disclosure agreement attached hereto. Each such Proprietary Document produced shall be marked on the first page with a conspicuous Proprietary or Highly Confidential - For Attorneys Eyes Only label. The party representatives receiving such Proprietary Documents shall hold and use such documents in confidence and in compliance with the terms and conditions of this order.3

3. If upon receipt and review of a Proprietary Document, the requesting party determines that such document does not appear to qualify for protection under 10 C.F.R. § 2.390(a)(4) and (b)(4)(i)-(v), the receiving party may file a motion with the Board challenging such designation. Absent good cause shown, any such motion shall be filed within ten days of receipt of the Proprietary Document. Prior to presenting any such dispute to the Board, the parties shall consult and use their best efforts to resolve it.

3 This order, and the good faith representation and designation of documents as Proprietary Documents by counsel for the producing party, serves in lieu of the requirement for marking and 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.

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PIIC Motion for Protective Order and Confidentiality Agreement (March 9, 2009)

Exhibit A - Proposed Protective Order and Non-Disclosure Agreement

4. If a party has filed a motion under the preceding paragraph then, pending a ruling by the Board, the Proprietary Document in question shall continue to be held in confidence. If the Board rules that a document does not qualify as a Proprietary Document, then the unrestricted use of such documents may begin fifteen (15) days after the Boards decision. If, during such time, the party that asserted protected status of the document files an interlocutory appeal or request that the issue be certified to the Commission, such period of time shall be extended until such time as the Board or the Commission rules on the appeal or request for certification.

5. Only individual counsel, consultants, witnesses, employees, and other representatives of the requesting parties who have executed the attached non-disclosure agreement, and the Board and its staff, may have access to Proprietary Documents.4 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 4

A party may make documents it identified as Proprietary Documents in its privilege log available to NRC counsel, witnesses, employees, consultants and others representing the NRC Staff for inspection provided that the Staff personnel have signed the non-disclosure agreement.

In addition, except for the Board and its staff, each person who is authorized by this Protective Order to inspect or have access to Proprietary Documents, including materials designated as Highly Confidential - Attorneys Eyes Only and who does inspect any such material, shall, before conducting such inspection or having such access, be provided with a copy of this Protective Order, shall execute the Non-Disclosure Agreement, and shall therefore be bound by this Protective Order. Any further use or disclosure of the trade secrets and/or privileged and confidential commercial and financial information contained in the Proprietary Documents is subject to the terms of this Protective Order.

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PIIC Motion for Protective Order and Confidentiality Agreement (March 9, 2009)

Exhibit A - Proposed Protective Order and Non-Disclosure Agreement Proprietary Documents, need to know the information contained in the Proprietary Documents in order to carry out their responsibilities in this proceeding. Proprietary Documents designated Highly Confidential - Attorneys Eyes Only shall only be used for the purpose of this litigation and may be disclosed only to the Board and its staff, and NRC Staff Counsel, PIIC Counsel, NSPMs outside legal counsel (including counsels partners, associates, and employees), and independent experts retained by the other party with a need to know and having no permanent employment or permanent consulting relationship with that other party who have signed the Non-Disclosure Agreement. 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.

6. Counsel, consultants, witnesses, employees, and others representing a party who receive documents subject to the terms of this protective order shall maintain the confidentiality of the information contained therein as required in the attached non-disclosure agreement, the terms of which are incorporated herein.

7. Counsel shall take all reasonable precautions necessary to assure that Proprietary Documents and the information contained therein are not distributed to unauthorized persons and that persons under their supervision or control comply with this protective order.

8. A party intending to file or submit any pleading, testimony, exhibit, or correspondence in this proceeding that contains a Proprietary Document or information 8

PIIC Motion for Protective Order and Confidentiality Agreement (March 9, 2009)

Exhibit A - Proposed Protective Order and Non-Disclosure Agreement derived from a Proprietary Document, shall provide written notification to the party that asserted protected status 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.

9. All pleadings, testimony, exhibits and correspondence in this proceeding that include a Proprietary Document or contain information derived from such a document shall:

a. Be served electronically using the NRC Electronic Submittal instructions applicable to submissions governed by protective order and designating for electronic service only those representatives of the parties who are authorized to receive the Proprietary Document and who have signed the non-disclosure agreement, the Board, and the Secretary;

b. Include an attached cover sheet identifying the pleading, testimony, exhibit, or correspondence as containing a Proprietary Document or information derived therefrom;

c. Specifically designate, by highlighting, marginalia, or other appropriate markings, the portion of the pleading, testimony, exhibit or correspondence, that contains a Proprietary Document or information derived therefrom; and

d. Be accompanied by a version of the pleading, testimony, exhibit and/or correspondence with the proprietary information redacted unless the party filing the pleading, testimony, exhibit and/or correspondence in good faith determines that such a redacted version cannot be prepared without undue burden or expense and so advises 9

PIIC Motion for Protective Order and Confidentiality Agreement (March 9, 2009)

Exhibit A - Proposed Protective Order and Non-Disclosure Agreement the Board and the other parties.

10. At any hearing or conference in this proceeding in which a statement is made by the representative 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 under other 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 information contained in a Proprietary Document to notify the Board and the parties that such testimony or statement will contain proprietary information, prior to the testimony or statement being made.

11. Proprietary Documents shall remain available until the date that an order terminating this proceeding is no longer subject to judicial review. The parties shall, within fifteen (15) days of the date described above, return the Proprietary Documents to counsel for party that provided them or shall destroy such documents and shall submit to counsel for the disclosing party an affidavit stating that, to the best of its knowledge, all Proprietary Documents have been returned or destroyed. Pending their return or destruction, Proprietary Documents shall remain subject to the provisions of this protective order.

12. Counsel, consultants, employees, or any other individuals representing a party who have reason to believe that Proprietary Documents may have been lost or misplaced or may have otherwise become available to unauthorized persons shall notify the Board and counsel for the disclosing party promptly of their concerns and the 10

PIIC Motion for Protective Order and Confidentiality Agreement (March 9, 2009)

Exhibit A - Proposed Protective Order and Non-Disclosure Agreement reasons for them.

13. Any violation of the terms of this protective order or a non-disclosure agreement executed 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.

14. Each party governed by this protective order has the right to seek changes in it as appropriate from the Board or the Commission.

15. Nothing in this protective order shall be deemed to preclude any party from independently seeking, through discovery in any other administrative or judicial proceeding, any Proprietary Document or information produced in this proceeding under this protective order. In addition, if documents identified in this proceeding as Proprietary Documents, or some or all of the information contained therein, come into the possession of or are known by any party independently of the document being produced in this proceeding, use of that document or information thus obtained 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.

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PIIC Motion for Protective Order and Confidentiality Agreement (March 9, 2009)

Exhibit A - Proposed Protective Order and Non-Disclosure Agreement

16. The Board may alter or amend this protective order as circumstances warrant at any time during the course of this proceeding.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD5 William J. Froehlich, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland March __, 2009 5

Copies of this order were sent this date by Internet e-mail transmission to counsel for (1) licensee Northern States Power Company, LLC.; (2) intervenor Prairie Island Indian Community; and (3) the Staff.

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ATTACHMENT A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of Docket No. 50-282-LR and 50-206-LR Northern States Power Co. (formerly Nuclear Management Company, LLC) ASLBP No. 08-871-01-LR (Prairie Island Nuclear Generating Plan, March __, 2009 Units 1 & 2)

NON-DISCLOSURE AGREEMENT Under penalty of perjury, I hereby certify that: access to Proprietary Documents is provided to me pursuant to the terms and restrictions of the Atomic Safety and Licensing Boards Protective Order, dated March __, 2009 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, shall not be disclosed to anyone except in accordance with that Protective Order, and shall be used only for purposes of this proceeding. 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.

WHEREFORE, I do solemnly agree to protect such Proprietary Documents, and their contents, as may be disclosed to me in this NRC proceeding, in accordance with the terms of this agreement.

PIIC Motion for Protective Order and Confidentiality Agreement (March 9, 2009)

Exhibit A - Proposed Protective Order and Non-Disclosure Agreement Name (printed): ________________________________________________________

Title:

Signature:_____________________________________________________________

Date: ________________________________________________________________

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

) Docket Nos. 50-282-LR Northern States Power Co. ) 50-306-LR

)

(Prairie Island Nuclear Generating Plant, ) ASLBP No. 08-871-01-LR Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of Prairie Island Indian Communitys Motion for Protective Order and Non-Disclosure Agreement Regarding Proprietary Documents, dated March 9, 2009, was provided to the Electronic Information Exchange for service on the individuals listed below, this 9th day of March, 2009.

Administrative Judge Administrative Judge William J. Froehlich, Esq., Chair Dr. Gary S. Arnold Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 Email: wjf1@nrc.gov Email: gxa1@nrc.gov Administrative Judge Secretary Dr. Thomas J. Hirons Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Mail Stop O-16 C1 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 secy@nrc.gov; hearingdocket@nrc.gov Email: thomas.hirons@nrc.gov

Office of Commission Appellate Adjudication Beth N. Mizuno, Esq.

Mail Stop O-16 C1 David E. Roth, Esq.

U.S. Nuclear Regulatory Commission Maxwell C. Smith, Esq.

Washington, DC 20555-0001 Office of the General Counsel E-mail: ocaamail@nrc.gov Mail Stop O-15 D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: beth.mizuno@nrc.gov; david.roth@nrc.gov; maxwell.smith@nrc.gov David R. Lewis, Esq. Peter M. Glass, Esq.

Matias F. Travieso-Diaz, Esq. Xcel Energy Services, Inc.

Stefanie M. Nelson, Esq. 414 Nicollet Mall Pillsbury, Winthrop, Shaw, Pittman, LLP Minneapolis, Minnesota 55401 2300 N Street, N.W. E-mail: peter.m.glass@xcelenergy.com Washington, DC 20037-1122 E-mail: david.lewis@pillsburylaw.com E-mail: matias.travieso-diaz@pillsburylaw.com E-mail: stefanie.nelson@pillsburylaw.com

/Signed electronically by Philip R. Mahowald/

Philip R. Mahowald