Text

Westinghouse'S Supplemental Response Re Westinghouse'S Appearance and Proprietary Documents
	ML15315A024
Person / Time
Site:	Indian Point
Issue date:	11/11/2015
From:	Coldren R J, Cowan B Z, Repka D A, Spadacene J C; Westinghouse, Winston & Strawn, LLP
To:	; Atomic Safety and Licensing Board Panel
	SECY RAS
References
	RAS 28511, ASLBP 07-858-03-LR-BD01, 50-247-LR, 50-286-LR
	Download: ML15315A024 (10)
	v • d • e

1 November 11, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:

ENTERGY NUCLEAR OPERATIONS, INC.

(Indian Point Nuclear Generating

Units 2 and 3) )

)

) Docket Nos. 50-247-LR

50-286-LR

WESTINGHOUSE ELECTRIC COMPANY'S SUPPLEMENTAL RESPONSE REGARDING WESTINGHOUSE'S APPEARANCE AND PROPRIETARY DOCUMENTS In accordance with the Licensing Board's direction during the pre-hearing conference call on November 5, 2015, 1 Westinghouse Electric Company LLC ("Westinghouse") herein addresses two related issues: (1) New York State's opposition 2 to Westinghouse's limited participation in this proceeding related to proprietary information; and (2) the implications of the Commission's decision of November 9, 2015, 3 in this matter for the State's pending motion 4 to withdraw Westinghouse's proprietary designation on ten additional documents. In addition, attached to this filing is a Non-Disclosure Agreement in accordance with the Protective Order in

1 Tr. 4723-24, 4752 (with the due date/time subsequently modified from 48 hours5.555556e-4 days 0.0133 hours 7.936508e-5 weeks 1.8264e-5 months to 72 hours8.333333e-4 days 0.02 hours 1.190476e-4 weeks 2.7396e-5 months after the Commission decision anticipated for November 9, 2015).

2 "State of New York Answer Opposing Westinghouse Electric Company's Motion for Leave to Appear Specially Regarding Additional Proprietary Documents," dated November 6, 2015 ("Opposition").

3 CLI-15-24, dated November 9, 2015.

4 "State of New York Motion for Public Disclosure of Various Westinghouse Documents,"

dated October 19, 2015 ("Motion").

2 this matter, executed by Mr. Richard J. Coldren, Westinghouse Senior Counsel Intellectual property, who will attend the hearings later this month.

1. Westinghouse's Participation Westinghouse first sought leave from the Licensing Board to appear specially to protect its proprietary information in this proceeding in May in response to the State's motion to withdraw the proprietary designations by Westinghouse for five documents.

5 The Licensing Board allowed Westinghouse to participate in an oral argument on May 14, 2015, and allowed Entergy Nuclear Operations, Inc. ("Entergy") and Westinghouse to file a joint brief on the issue of Westinghouse's proprietary designations for the documents and the legal standards for public release of such documents. When the State filed its Motion to withdraw the proprietary designations for ten additional documents (or portions thereof), Wes tinghouse again sought leave to appear specially, on the assumption that the Licensing Board's prior allowance may not extend to the new State Motion.6 As before, the documents now at issue were disclosed to the State by Entergy and were provided to the State under a prot ective order. Westinghouse has asserted that the documents are entitled to be protected as confidential commercial information under 10 C.F.R. § 2.390(a)(4).

Westinghouse's Motion to Appear explains the basis for and limited scope of Westinghouse's appearance and participation in this matter. The Licensing Board has granted the motion by

5 "Motion of Westinghouse Electric Company LLC to App ear Specially in Connection with State of New York Motion to Strike Pr oprietary Designations of Westinghouse and PWROG Proprietary Documents," dated May 5, 2015.

6 Westinghouse Electric Company's Motion for Leave to Appear Specially Regarding Additional Proprietary Documents," dated October 29, 2015 ("Motion to Appear"). Without any presumption, Westinghouse stated (at page 2) that it "is seeking to participate in the present case in an appropriate manner to protect its interests and preserve its rights."

3 Order dated November 3, 2015.

7 Nonetheless, the State sought permission to file its Opposition, which amounts to a request for reconsideration of the Licensi ng Board's decision. The Opposition does not provide any reason for the Board to reconsider Westinghouse's limited participation to protect Westinghouse commercial information. First, the basis for Westinghouse's particip ation is 10 C.F.R. § 2.315(a), as well as the Licensing Board's discretionary authority to manage a proceeding 8 and Commission precedent previously cited. The State alleges that Westinghouse is seeking to "shoulder its way into the proceeding" to participate in some open-ended fashion, subject only to "self-imposed limitations."

9 But that characterization does not comport with reality. Westinghouse has never sought to intervene as a party, nor does it intend to appear or otherwise participate on any issue other than the State's own motions to release Westinghouse proprietary information to the detriment of Westinghouse. When it filed its Motion to Appear, Westinghouse had no way of knowing what further proceedings would be allowed by the Licensing Board in connection with the State's Motion. But Westi nghouse only sought to participate to protect its commercial interests and understands that it can and will appear on ly as allowed by th e Licensing Board in whatever process is established by the Licensing Board for addressing the State's Motion. The scope of and limitations on Westinghouse's role are hardly "self-imposed."

7 Order (Granting Westinghouse Electric Company's Motion for Leave to Appear Specially Regarding Additional Proprietary Documents (October 29, 2015)," dated November 3, 2015; Tr. 4721.

8 See, e.g., 10 C.F.R. §§ 2.319(g) and (s).

9 Opposition at 6.

4 Second, the State suggests other approaches by which Westinghouse could have participated (e.g., by submitting a "statement" or joining in Entergy's response to the motion).

10 The State does not explain how Westinghouse could have done this without first filing a motion to appear. But, regardless, Wes tinghouse is free to choose how it wa nts to protect its interests in its proprietary documents, and it has chosen to do so in the same limited way as previously allowed in this very proceeding. Accordingly, Westinghouse filed a timely motion to do so.

11 Westinghouse was not "attempting to assure that it gets another bite at the apple," nor was it seeking or advocating "multiple rounds of briefing" as the State asserts.

12 Westinghouse simply sought to appear in any relevant process, yet to be determined by the Licensing Board, to preserve its rights going forward.

Third, the State seeks "discovery and depositions" of Westinghouse employees to address perceived "asymmetry" in the process and to assure "procedural fairness."

13 However, there is no legal basis for this novel request. Westinghouse is not a party and does not itself offer evidence on the substantive contentions in the proceeding. NRC regulations do not provide for depositions in Subpart L hearin gs, and they do not provide for disclosures directly from non-parties in any proceeding.

See generally 10 C.F.R. §2.336.

14 Disclosures from the applicant

10 Opposition at 6.

11 Had Westinghouse moved to submit a statement as the State suggests, it is unclear why the State would not have objected to that as well, for the same reasons as offered in the Opposition.

12 Opposition at 6-7.

13 Id. at 7. 14 Section 2.336(g) further provides that the disclosure procedures in Section 2.336 are the "sole discovery permitted" unless allowed by another subsection for a particular type of hearing or as specifically allowed by th e Commission. Neither of those exceptions applies here.

5 already encompass Westinghouse documents in th e possession of Entergy that the applicant determines to be potentially relevant to the cont entions, as evidenced by th e fact that we are now addressing Westinghouse documents.

But there is no basis in the regulations for discovery into the "factual representations" in the declarations of Westinghouse employees related to the proprietary nature of Westinghouse documents, as proposed by the State.

Finally, the State quibbles with Westinghouse counsel's compliance with the consultation requirement in 10 C.F.R. § 2.323(b) with respect to Westinghouse's Motion to Appear. Westinghouse counsel contacted the Stat e three days in adva nce of its Motion to Appear and informed the State of its intended mo tion. The State's counsel replied that "at this point . . . the State cannot respond to Westinghouse's proposal." The email went on to give a number of reasons, all making clear that the State continued to object to Westinghouse's special appearance (as the State has consistently objected, before both the Licensing Board and the Commission). Westinghouse counsel stated accurately the State's position th at it could not at the time respond to the motion. Westinghouse had no ob ligation to further engage or recite the various bases for the State's position. The Commission's regulations provide a process for the State to respond to a motion.

2. Commission Decision, CLI-15-24 As anticipated, on November 9, 2015 the Commission issued CLI-15-24, ruling on the State's petition for interlocutory review of the Licensing Board's Order of July 20, 2015, denying the State's first motion to withdraw Westinghouse's pr oprietary designation for five documents. The State's petition for interlocutory review also addressed the Licensing Board's implicit decision to allow Westinghouse to appear in connection with the first motion. The Commission in CLI-15-24 denied the petition for review, because the State did not demonstrate 6 that its petition meets the standards for interloc utory review in 10 C.F.R. § 2.341(f)(2). This applied to the State's arguments on the merits of its motion as well as its arguments related to Westinghouse's participation.

15 The Commission's decision is, of course, without prejudice to the State's ability to renew the appeal following a partial or final initial decision by the Licensing Board.

Presently, Westinghouse's view is that the decision does not change the situation as it existed previously with resp ect to the State's pending Motion or the dispute over Westinghouse's ongoing role. The Licensing Board's prior decisions, including its most recent decision of November 3 allowing Westinghouse to participate, remain controlling in this case. The Commission's decision provides no basis for reconsideration.

3. Non-Disclosure Agreement As discussed during the pre-hearing conference call, 16 Mr. Coldren, Westinghouse's in-house intellectual property senior counsel, will be present at the upcoming hearings, including in any closed proceedings. He is authorized to have access to Westinghouse's confidential commercial informati on by virtue of his role with the company. Nonetheless, given that proprietary information of other entities may be involved, attached to this filing is a Non-Disclosure Agreement in accordance with the Protective Order in this matter, executed by Mr. Coldren.

17 15 CLI-15-24, slip op. at 7-9.

16 Tr. 4750-52.

17 Mr. Repka, Westinghouse's outside counsel on this matter, previously executed and submitted a Non-Disclosure Agreement.

7 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 11th day of November 2015

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:

ENTERGY NUCLEAR OPERATIONS, INC.

(Indian Point Nuclear Generating

Units 2 and 3) )

)

) Docket Nos. 50-247-LR

50-286-LR

CERTIFICATE OF SERVICE I hereby certify that copies of the "WESTINGHOUSE ELECTRIC COMPANY'S SUPPLEMENTAL RESPONSE REGARDING WESTINGHOUSE'S PROPRIETARY DOCUMENTS AND APPEARANCE" and the Non-Disclosure Agreement of Richard J. Coldren in the captioned proceeding have been served via the Electronic Information Exchange ("EIE") this 11th day of November 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

Winston & Strawn LLP

1700 K Street, NW

Washington, DC 20006-3817 Counsel for Westinghouse Electric Company LLC

DC:781684.1