ML12345A372

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Order (Granting Joint Motion for Entry of a Protective Order and Non-Disclosure Agreement)
ML12345A372
Person / Time
Site: San Onofre  Southern California Edison icon.png
Issue date: 12/10/2012
From: Hawkens E
Atomic Safety and Licensing Board Panel
To:
Friends of the Earth, Southern California Edison Co
SECY RAS
References
RAS 23866, 50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01
Download: ML12345A372 (9)
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Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

E. Roy Hawkens, Chairman Dr. Anthony J. Baratta Dr. Gary S. Arnold In the Matter of Docket Nos. 50-361-CAL, 50-362-CAL SOUTHERN CALIFORNIA EDISON CO.

ASLBP No. 13-924-01-CAL-BD01 (San Onofre Nuclear Generating Station, Units 2 and 3)

December 10, 2012 ORDER (Granting Joint Motion for Entry of a Protective Order and Non-Disclosure Agreement)

Upon consideration of the December 7, 2012 Joint Motion for Entry of a Protective Order of Friends of the Earth (FOE) and Southern California Edison Company (SCE), and the proposed Protective Order submitted as an attachment to the Joint Motion, we GRANT the Joint Motion and issue this Protective Order to govern the disclosure of any Protected Information as part of the adjudication of the issues referred by the Commission (CLI-12-20) to the Atomic Safety and Licensing Board (ASLB) on November 8, 2012 regarding a March 27, 2012 Confirmatory Action Letter (CAL) issued by the Nuclear Regulatory Commission (NRC) to SCE.

The terms of the Protective Order are as follows:

1. This Protective Order shall govern the recipients use of all Protected Information produced by, or on behalf of, SCE (and its third-party vendors, contractors, and consultants),

FOE, and/or the NRC Staff in this proceeding. Protected Information consists of information designated by SCE (and its third-party vendors, contractors, and consultants), FOE, or the NRC Staff as proprietary information under 10 C.F.R. § 2.390(a)(4). This Protective Order shall remain in effect until specifically amended or terminated by a subsequent order issued by the

2 ASLB or the Commission, or an order terminating this proceeding that is no longer subject to judicial review.

2. The following individuals shall be entitled to have access to the Protected Information in documents provided by another participant (or on behalf of anothers participants third-party vendors, contractors, and consultants), if they execute and file the attached Non-Disclosure Affidavit: SCEs and FOEs designated legal counsel that have entered a notice of appearance in this proceeding and legal staff under their supervision; any employees, experts, or consultants engaged or retained by or on behalf of SCE or FOE, whether or not for a fee. Any individual that does not execute and file the Non-Disclosure Affidavit is not authorized to receive access to the Protected Information.
3. The terms of this Protective Order do not apply to the NRC Staff, NRC contractors, or NRC legal counsel. The NRC Staffs use of Protected Information is governed by NRC regulations and policies as well as other applicable law.
4. Protected Information shall be treated as confidential by SCE and FOE. Protected Information shall not be used except as necessary for the conduct of this proceeding regarding the CAL. SCE and FOE may make copies of and take notes of Protected Information, but such copies and notes become Protected Information subject to the terms of this Order. SCE and FOE shall take all reasonable precautions to ensure that Protected Information is not distributed to unauthorized persons.
5. SCE and FOE 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.

Each document that contains or reveals Protected Information shall be marked Contains Protected Information - Confidential and Proprietary - Distribution Restricted per Protective Order in a conspicuous manner on the cover and every page.

6. Legal counsel for SCE and FOE that have entered a notice of appearance and have signed and filed the Non-Disclosure Affidavit may allow their legal staff under their supervision

3 access to the Protected Information as necessary in the course of their representation. Counsel shall be responsible for ensuring that their staff complies with the terms of this Order and the Non-Disclosure Affidavit and will be subject to sanctions for any violations by their staff.

7. SCE and FOE shall maintain a log of all copies of materials that contain Protected Information within their possession or control. Upon an order terminating this proceeding that is no longer subject to judicial review or upon order by the ASLB or Commission, SCE and FOE shall return all materials containing Protected Information to the participant from which it received the Protected Information or destroy the materials, except that copies of filings, official transcripts, exhibits, and notes may be redacted so that only those portions containing Protected Information are destroyed. Each recipient of Protected Information shall execute an affidavit stating that the Protected Information within its possession or control has been returned or destroyed, and shall serve a copy of the executed affidavit upon the other participants to this proceeding within 15 days.
8. Any recipient of Protected Information who has reason to suspect that Protected Information may have been lost or misplaced, or that Protected Information has otherwise become available to unauthorized persons, shall promptly notify the ASLB of those suspicions and the reason for them.
9. The ASLB may alter or amend this Protective Order and resolve disputes arising from it.

SCE, FOE, or the NRC Staff may seek amendments to this Order or this Non-Disclosure Affidavits by filing a motion for amendment.

10. Pleadings or other documents for filing that contain information protected pursuant to this Order shall be filed electronically using the E-Filing system. The person filing the document must properly choose the option Non-Public Submission to prevent the document from being filed in the public docket. Only members of the ASLB, NRC Staff counsel, counsel for the participant disclosing the Protected Information, and other authorized persons should be checked as recipients on the electronic service list. If any participant to this proceeding

4 intends to submit an exhibit, testimony, or pleading containing Protected Information without using the E-Filing system, the participant shall notify the ASLB prior to such filing. Nothing in this Order shall preclude a participant to this proceeding from objecting to the use of an exhibit, testimony, or a pleading because it contains Protected Information. The ASLB may issue additional orders concerning the use of Protected Information at any hearing.

11. Nothing in this Order shall preclude any person from seeking public disclosure of Protected Information in accordance with NRC regulations. Nothing in this Order shall preclude any person from seeking through discovery in any other administrative or judicial proceeding, information protected by this Order.
12. Protected Information shall not be disclosed to any third party without the express written consent of the participant that produced the Protected Information (the Producing Party). In the event that a recipient of Protected Information (the Subpoenaed Party) receives a subpoena or other compulsory document production device in a judicial, administrative, regulatory or other governmental proceeding seeking the Protected Information, the Subpoenaed Party or its representatives may make such disclosure provided that to the extent the disclosure includes Protected Information received from a Producing Party, the Subpoenaed Party shall provide immediate written notice to the Producing Party of the circumstances surrounding the request and shall take appropriate steps to maintain confidential treatment of the Protected Information, requesting that such Protected Information be filed under seal. The Subpoenaed Party shall also consult with the Producing Party on the advisability of taking steps to challenge or narrow the request, and shall cooperate with any efforts by the Producing Party to challenge or narrow the scope of the disclosure.
13. Any violation of this Protective Order or any Non-Disclosure Affidavit executed hereunder may result in the imposition of sanctions as the ASLB or the Commission may deem to be appropriate. Nothing in this Order restricts or waives the participants rights to pursue any other legal or equitable remedies that may be available in the event of actual or anticipated

5 disclosure of Protected Information. The participants agree that any actual or anticipated unauthorized disclosure of Protected Information constitutes immediate and irreparable harm entitling the participant producing the Protected Information to an injunction and other equitable remedies. The participants further agree that the participant effectuating the actual or anticipated unauthorized disclosure shall be liable to the participant producing the Protected Information for legal damages, including but not limited to attorneys fees and costs.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE Issued at Rockville, Maryland this 10th day of December 2012.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket Nos. 50-361-CAL, 50-362-CAL SOUTHERN CALIFORNIA EDISON CO.

ASLBP No. 13-924-01-CAL-BD01 (San Onofre Nuclear Generating Station, Units 2 and 3)

December __, 2012 NON-DISCLOSURE AFFIDAVIT I, _________________________________, being duly sworn, state:

(Print Name)

1. I have read the December 10, 2012 Atomic Safety and Licensing Board (ASLB)

Protective Order for this proceeding on the issues referred by the Commission (CLI 20) to the ASLB on November 8, 2012 regarding a March 27, 2012 Confirmatory Action Letter issued by the Nuclear Regulatory Commission to the Southern California Edison Company, Docket Nos. 50-361-CAL and 50-362-CAL, and will comply in all respects with its terms and conditions regarding the Protected Information produced in connection therewith. I will protect and keep confidential all Protected Information in accordance with the terms of this Non-Disclosure Affidavit.

2. I will not disclose Protected Information to anyone except an authorized person. I will protect documents containing or revealing Protected Information in written or recorded form (including any portions of transcripts of in camera hearings, filed testimony, or any other documents that contain or reveal such Protected Information), 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. When not under my direct control or the direct control of another authorized person, I will keep and protect all documents containing or revealing Protected Information

2 (including, without limitation, transcripts, pleadings that I may generate, and any notes and copies that I may make) in a secure locked place such as a filing cabinet, closet, or other storage container. I will not transmit by facsimile transmission any material containing Protected Information.

4. Each document that contains or reveals Protected Information shall be marked Contains Protected Information - Confidential and Proprietary - Distribution Restricted per Protective Order in a conspicuous manner on the cover and every page.
5. 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 Protected Information and is not otherwise a matter of public record.
6. I acknowledge that any violation of the terms of this affidavit or the ASLBs Protective Order, which incorporates the terms of this affidavit, may result in the imposition of such sanctions on me that the ASLB or the Commission may deem to be appropriate, or any other legal or equitable remedies that may be available in the event of actual or anticipated disclosure of Protected Information.

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 affidavit.

(Name)

Subscribed to and sworn before me this _____ day of _______________, ____.

Notary Public My commission expires: ___________________________

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

)

SOUTHERN CALIFORNIA EDISON CO. )

)

) Docket Nos. 50-361-CAL (San Onofre Nuclear Generating Station - ) 50-362-CAL Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Granting Joint Motion for Entry of a Protective Order and Non-Disclosure Agreement) have been served upon the following persons by Electronic Information Exchange and by electronic mail as indicated by an asterisk*.

Office of Commission Appellate Southern California Edison Company Adjudication Douglas Porter, Esq.*

U.S. Nuclear Regulatory Commission Director and Managing Attorney Washington, DC 20555-0001 Generation Policy and Resources E-mail: ocaamail@nrc.gov Law Department 2244 Walnut Grove Ave., GO1, Q3B, 335C Atomic Safety and Licensing Board Panel Rosemead, CA 91770 U.S. Nuclear Regulatory Commission Email: douglas.porter@sce.com Mail Stop - T-3 F23 Washington, DC 20555-0001 Counsel for Licensee Morgan, Lewis & Bockius, LLP E. Roy Hawkens 1111 Pennsylvania, Ave. N.W.

Chief Administrative Judge Washington, D.C. 20004 E-mail: roy.hawkens@nrc.gov Paul M. Bessette, Esq.

Kathryn M. Sutton, Esq.

Anthony J. Baratta Stephen J. Burdick, Esq.

Administrative Judge Steven P. Frantz, Esq.

Email: anthony.baratta@nrc.gov William E. Baer, Jr.*

Mary Freeze, Legal Secretary Gary S. Arnold Lena M. Long, Legal Secretary Administrative Judge E-mail: pbessette@morganlewis.com Email: gary.arnold@nrc.gov sburdick@morganlewis.com ksutton@morganlewis.com U.S. Nuclear Regulatory Commission wbaer@morganlewis.com Office of the Secretary of the Commission sfrantz@morganlewis.com Mail Stop O-16C1 mfreeze@morganlewis.com Washington, DC 20555-0001 llong@morganlewis.com Hearing Docket E-mail: hearingdocket@nrc.gov

San Onofre Nuclear Generating Station, Units 2 and 3, Docket Nos. 50-361 and 50-362-CAL ORDER (Granting Joint Motion for Entry of a Protective Order and Non-Disclosure Agreement)

U.S. Nuclear Regulatory Commission Friends of the Earth Office of the General Counsel Ayres Law Group Mail Stop - O-15 D21 1707 L St., NW Washington, DC 20555-0001 Suite 850 Edward Williamson, Esq. Washington, D.C. 20036 David Roth, Esq. Richard E. Ayres, Esq.

Catherine Kanatas, Esq. Jessica L. Olson, Esq.

Email: edward.williamson@nrc.gov Kristin L. Hines, Esq.

david.roth@nrc.gov Email: ayresr@ayreslawgroup.com catherine.kanatas@nrc.gov olsonj@ayreslawgroup.com hinesk@ayreslawgroup.com OGG Mail Center: ogcmailcenter@nrc.gov Natural Resources Defense Council Geoffrey H. Fettus, Esq.

1152 15th Street, NW Suite 300 Washington, DC 20005 Email: gfettus@nrdc.org

[Original signed by Brian Newell ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 10th day of December, 2012 2

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