OAH
Docket No. 7-2500-19797-2
MPUC
Docket Nos. E-002/CN-08-509
E-002/CN-08-510
E-002/GS-08-690
STATE
OF MINNESOTA
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE PUBLIC
UTILITIES COMMISSION
|
In the Matter of the Application of
Northern States Power Company, a Minnesota Corporation, for a Certificate of
Need for the Prairie Island Nuclear Generating Plant for Additional Dry Cask
Storage In the Matter of the Application of
Northern States Power Company, a Minnesota Corporation, for an LEPGP Site
Permit for the Prairie Island Nuclear Generating Plant (PINGP) Extended Power
Uprate Project |
PROTECTIVE
ORDER |
INTRODUCTION:
1. The purpose of this Protective Order
(“Order”) is to facilitate the disclosure of documents and information during
the course of these proceedings and to protect trade secret information, security
information, and nonpublic data (“Trade Secret Information, Security
Information, and Nonpublic Data”).
Access
to and use of Trade Secret Information, Security Information, and Nonpublic
Data in this proceeding by parties other than government agencies shall be
strictly controlled by the terms of this Order.
The parties other than government agencies are herein referred to as
parties, persons or entities. Nothing in
this Order requires any party to disclose to any other party documents, data,
information, studies or other materials, including any documents, data,
information, studies or other materials required by federal law to be protected
from disclosure.
The
government agencies with access to Trade Secret Information, Security
Information, and Nonpublic Data, which include the Minnesota Public Utilities
Commission (“Commission”), the Office of Administrative Hearings (“OAH”), the
Office of the Attorney General (“OAG”), the Minnesota Department of Commerce,
including the Minnesota Office of Energy Security (“Department” or “OES”), the
Office of the Attorney General-Residential and Small Business Utilities
Division (“OAG-RUD”), the Minnesota Department of Administration
(“Administration”), the Minnesota Department of Administration, Office of Enterprise
Technology (“OET”) and the Minnesota State Historical Society, are subject to
various laws and rules, including the Minnesota Government Data Practices Act
(“MGDPA”), the records retention requirements of Minn. Stat.
§§ 138.163-138.226, as well as agency specific rules and procedures,
including the Commission’s September 1, 1999, Revised Procedures for Handling
Trade Secret and Privileged Data (“Commission’s Procedures”).
2. Xcel
Energy filed its Certificate of Need (“CON”) Applications for the Extended
Power Uprate and the Additional Dry Cask Storage at the Prairie Island Plant on
May 16, 2008 and filed supplements to the CON Applications on July 15, 2008 and
March 20, 2009.
3. In
an Order dated July 22, 2008, the Commission accepted the CON Applications as
substantially complete pending supplemental filing. Xcel Energy made the required supplemental
filing on July 15, 2008. In a separate
Order dated July 22, 2008, the Commission referred the CON Applications for a
contested case proceeding and public hearing.
4. Xcel
Energy filed its Site Permit Application for the Extended Power Uprate on
August 1, 2008.
5. On
August 15, 2008, the Commission issued an Order accepting the Site Permit
Application as complete, authorizing the OES Energy Facilities Permitting Staff
to initiate the full review process under Minnesota Rules Chapter 7849, and
referring the matter to the OAH for a contested case proceeding.
6. Administrative
Law Judge Richard C. Luis issued his First Prehearing Order on October 3,
2008. The Administrative Law Judge
ordered that the contested case proceedings for the CON and Site Permit
Applications be consolidated for the purpose of hearing all contested issues in
Docket Nos. E-002/CN-08-509, E-002/CN-08-510, and E-002/GS-08-690 and established
the schedule for the consolidated proceeding.
The Administrative Law Judge granted the Petition to Intervene in Docket
Nos. E-002/CN-08-509 and E-002/CN-08-510 filed by Gerdau Ameristeel US Inc. and
Marathon Ashland Petroleum LLC (the “Xcel Industrial Intervenors”). The Administrative Law Judge also granted the
Petition to Intervene in Docket No. E-002/CN-08-509 filed by the Prairie Island
Indian Community (“Community”). Nothing
in this Protective Order alters or expands the Community’s scope of intervention,
and the Community’s intervention remains limited to Docket No. E-002/CN-08-509.
7. The
Administrative Law Judge issued his Second Prehearing Order on April 7,
2009. The Administrative Law Judge
granted the City of Red Wing’s Petition to Intervene in Docket Nos.
E-002/CN-08-509, E-002/CN-08-510, and E-002/GS-08-690, and granted the City of
Red Wing an extension to file Direct Testimony in these proceedings.
8. In
paragraph 28 of the First Prehearing Order, Judge Luis stated:
Parties asked to provide information them deem
confidential or nonpublic may require the requesting party to comply with the
terms of a protective agreement or the Minnesota Government Data Practices
Act. A protective order may be obtained
on application to the Administrative Law Judge.
9. During the proceeding in this matter,
parties may file, request and use Trade Secret Information, Security
Information, or Nonpublic Data, as defined by Minnesota Statutes Chapter 13.01
et seq.
10. Minnesota Statutes § 14.60,
subdivision 2, allows the Administrative Law Judge in a contested case to
conduct a closed hearing to discuss Trade Secret, Security, or Nonpublic data,
issue necessary Protective Orders, and seal all or part of the hearing record.
ACCORDINGLY,
IT IS HEREBY ORDERED:
1. (a) Trade
Secret Information, Security Information, and Nonpublic Data. All Trade Secret Information, Security
Information, and/or Nonpublic Data that is furnished pursuant to the terms of
this Protective Order shall be treated by all persons accorded access thereto
pursuant to this Protective Order as constituting confidential, competitive,
trade secret, and business information, and shall be used solely for the
purpose of this proceeding and solely in accordance with this Protective Order,
and shall not be used or disclosed for any other purpose or in any other
manner. In accordance with the
Commission’s Procedures, all documentary material claimed to be Trade Secret
Information, Security Information, or Nonpublic Data shall be marked
substantially as follows by stamping each individual page with the designation
“TRADE SECRET [SECURITY] INFORMATION—NONPUBLIC DATA.” For purposes hereof, notes made pertaining to
or prepared as the result of a review of Trade Secret Information, Security
Information, or Nonpublic Data shall be subject to the terms of this Protective
Order. Any Trade Secret Information,
Security Information, or Nonpublic Data received in photographic, digital or
electronic formats shall be identified as protected by the producing party by
means appropriate to the medium and shall be handled by the recipient in a
manner suitable to protect its confidentiality.
(b) Use of Trade Secret Information,
Security Information, or Nonpublic Data and Persons Entitled to Review. All Trade Secret Information, Security
Information, or Nonpublic Data made available pursuant to this Protective Order
shall be given solely to counsel for the requesting party, the requesting party
or other authorized persons who are designated by counsel as being the party’s
experts or witnesses in this proceeding.
Provided, however, the requesting party, the designated expert, and/or
witness shall each be obligated to execute Exhibit A in a timely manner prior
to their receipt of the Trade Secret Information, Security Information, and/or
Nonpublic Data and abide by the terms of this Protective Order. In the event that a requesting party is an
entity, then each individual within that requesting party that is proposed to
be granted access to the Trade Secret Information, Security Information, and/or
Nonpublic Data shall execute Exhibit A and be individually subject to the
disclosing party’s right to object set forth in paragraph 1(c) below. Trade Secret Information, Security
Information, and/or Nonpublic Data shall not be used or disclosed except for
purposes of this proceeding and as needed for all subsequent appeals of the
final order in this proceeding. The
Trade Secret Information, Security Information, and/or Nonpublic Data may not
be used or referenced in other proceedings in Minnesota or in other
jurisdictions. Unless otherwise provided
in this Protective Order, all Trade Secret Information, Security Information,
and Nonpublic Data will be safeguarded and handled in accordance with the
Commission’s Procedures.
(c) Nondisclosure Agreement. Prior to giving access to Trade Secret
Information, Security Information, and/or Nonpublic Data as contemplated in
paragraphs (a)-(b) above to any expert or witness, whether or not such expert
or witness is a person designated to testify in any such proceeding, counsel
for the party seeking review of the Trade Secret Information, Security
Information, and/or Nonpublic Data shall deliver a copy of this Protective
Order to such person; and prior to disclosure such person shall agree in writing
to comply with and be bound by this Protective Order. In connection therewith, Trade Secret
Information, Security Information, and/or Nonpublic Data shall not be disclosed
to any person who has not signed a Nondisclosure Agreement in the form which is
attached hereto and incorporated herein as Exhibit A and until the 48-hour
notice required by this paragraph has been given. The Exhibit A Nondisclosure Agreement shall
require the person to whom disclosure is to be made to read a copy of this
Protective Order and to certify in writing that he or she has reviewed the same
and has consented to be bound by its terms.
The Nondisclosure Agreement shall contain the signatory’s full name,
permanent address and employer, and the name of the party with whom the signatory
is associated. Such Nondisclosure
Agreement shall be delivered to counsel for the providing party at least 48
hours, excluding weekends and holidays, prior to the expert or witness gaining
access to the Trade Secret Information, Security Information, and/or Nonpublic
Data. If counsel for the providing party
notifies the Administrative Law Judge of an objection within the 48 hours, no
Trade Secret Information, Security Information, and/or Nonpublic Data shall be
provided to the expert or witness until so ordered by the Administrative Law
Judge.
2. Government
Agencies. The government agencies
are not subject to the terms of this Protective Order except, while this matter
is pending before the OAH and as to matters within the jurisdiction of the OAH,
government agencies are subject to this paragraph 2.
(a) Definition
of Trade Secret Information, Security Information, and Nonpublic Data.
“Trade Secret Information, Security Information, and Nonpublic Data” shall be
limited to “trade secret information” as defined at Minn. Stat. § 13.37,
subd. 1(b), “security information” as defined at Minn. Stat. § 13.37,
subd. 1(a), “nonpublic data” as defined at Minn. Stat. § 13.02,
subd.
9, and “private data on individuals” as defined at Minn. Stat. § 13.02,
subd. 12. This definition applies to
both government agencies and parties.
(b) Conflicts. To the extent this Protective Order conflicts
with or omits a matter otherwise required by either the MGDPA or Commission
Procedures, the requirements of the MGDPA or Commission Procedures shall
control. Any provision of this
Protective Order not consistent with this paragraph 2 shall be of no effect
with respect to the government agencies.
(c) Experts. A government agency may not provide Trade
Secret Information, Security Information, or Nonpublic Data to outside experts
providing assistance on this matter until the outside experts have signed
Exhibit A. Said experts shall comply
with the terms of this Protective Order except where contrary to the
requirements of the MGDPA or Commission Procedures.
(d) Challenge
to Trade Secret, Security or Nonpublic Designation. The Administrative Law Judge, upon a request
by or to any party or government agency, and ten (10) days prior notice or such
period as is determined by the Administrative Law Judge, may hold a hearing in camera and remove a designation of
Trade Secret Information, Security Information, or Nonpublic Data upon a
showing that the data is appropriately classified as public data.
(e) Verbal
Disclosure. Trade Secret Information,
Security Information, and/or Nonpublic Data may be verbally disclosed by
government agencies during depositions or hearings in this matter upon prior
notice to and agreement of the disclosing party or authorization by the
Administrative Law Judge. Any such
disclosure does not change the classification of the data and it remains
subject to the limitations imposed by the MGDPA.
(f) Transcripts. Each disclosing party or government agency,
during a deposition or hearing, may request that portions of depositions or
hearing transcripts be treated as Trade Secret Information, Security
Information, and/or Nonpublic Data for up to three business days after the
transcript is made available to the disclosing party and, unless otherwise
ordered by an Administrative Law Judge, the parties shall treat the data, and
the court reporter shall mark those portions of transcript, as “TRADE SECRET
[SECURITY] INFORMATION—NONPUBLIC DATA” consistent with the Commission’s
Procedures. After the three business day
period, the marked transcripts shall become public data unless the disclosing
party identifies portions as Trade Secret Information, Security Information,
and/or Nonpublic Data.
3. Challenge
to Nonpublic, Trade Secret or Security Designation or Other Special Requests. This Protective Order shall not be construed
as a ruling on the discoverability, confidentiality or trade secret or security
designation of any information or document.
While this matter is pending before the OAH, any party at any time upon
ten (10) days prior notice may seek by appropriate pleading to have documents
or other matters that have been designated as Trade Secret Information,
Security Information, or Nonpublic Data removed from the protective
requirements of this Protective Order or to have them handled in a manner
differently than described in this Protective Order (either for greater or
lesser confidentiality protections). If
the trade secret, security, or nonpublic nature of this information is challenged,
resolution of the issue shall be made by the Administrative Law Judge after
proceedings in camera which shall be
conducted under circumstances such that only those persons duly authorized
hereunder to have access to such trade secret, security, or nonpublic matter
shall be present. The record of such in camera hearings shall be marked
“TRADE SECRET INFORMATION—NONPUBLIC DATA,” unless the ALJ determines that the
proceeding should not be classified as involving Trade Secret Information,
Security Information, or Nonpublic Data.
4. Use of
Trade Secret Information, Security Information, and/or Nonpublic Data in
Comments or Pleadings. Where
reference to Trade Secret Information, Security Information, and/or Nonpublic
Data is required in pleadings, cross-examinations, briefs, argument or motions,
it shall be by citation of title or exhibit number or by some other
nonconfidential description. Any further
use of or substantive references to Trade Secret Information, Security
Information, and/or Nonpublic Data shall be placed in a separate “Nonpublic”
copy of the pleading or brief and submitted to the Commission or OAH pursuant
to the terms of the Commission’s Procedures.
This “Nonpublic” copy shall be served only on counsel of record (one
copy each) who have signed a Nondisclosure Agreement. All the protections afforded in this
Protective Order apply to materials prepared and distributed under this
paragraph.
5. Use of
Trade Secret Information, Security Information, and/or Nonpublic Data in
Depositions. If, in the course of
depositions, counsel for any party concludes that testimony or exhibits will
involve Trade Secret Information, Security Information, and/or Nonpublic Data,
counsel shall request that the court reporter record such testimony in a
confidential transcript that is marked “TRADE SECRET INFORMATION—NONPUBLIC
DATA.” All Exhibits which have been
marked as involving Trade Secret Information, Security Information and/or
Nonpublic Data shall be attached to the confidential transcript and marked
consistent with the Commission’s Procedures.
Unless otherwise ordered by the Administrative Law Judge, the marked
portions of the depositions transcripts and exhibits shall be treated as Trade
Secret Information, Security Information, and/or Nonpublic Data for up to three
business days after the transcript is made available to the disclosing
party. After the three business day
period, the marked transcripts and exhibits shall become public data unless the
disclosing party identifies portions as Trade Secret Information, Security
Information, and/or Nonpublic Data.
6. Use of
Trade Secret Information, Security Information, or Nonpublic Data in Hearings. The Receiving Party shall not use Trade
Secret Information, Security Information, and/or Nonpublic Data in a hearing
without first (a) providing prior notice to the disclosing party regarding the
information to be used and (b) conferring with the disclosing party regarding
limitations or procedures that can be used to avoid disclosing the confidential
aspects of the information at issue to persons not otherwise entitled to
receive such information. If the parties
cannot reach agreement regarding the use of such information, then the dispute
shall be submitted to the Administrative Law Judge or the Commission before the
information is used or publicly disclosed.
Without limiting the foregoing, no party shall refer to Trade Secret
Information, Security Information, and/or Nonpublic Data in oral testimony,
cross-examination or argument except in accordance with this paragraph.
7. Public
Summaries. To the extent required by
the Commission’s Procedures, the providing party shall prepare a written
summary of the Trade Secret Information, Security Information, or Nonpublic
Data referred to in this Order to be placed on the public record.
8. Return. Unless otherwise ordered, all Trade Secret
Information, Security Information, and/or Nonpublic Data, including transcripts
of any depositions to which a claim of “trade secret,” “security,” or
“nonpublic” status is made, shall remain under seal, shall continue to be
subject to the protective requirements of this Protective Order, and, except as
provided in Paragraph 10, shall be returned to counsel for the disclosing party
within 30 days after final conclusion of the applicable matter including
administrative or judicial review thereof, unless otherwise agreed by the
disclosing party.
9. Preservation
of Nonpublic, Trade Secret and/or Security Designation. All persons who may be entitled to receive,
or who are afforded access to any Trade Secret Information, Security
Information, and/or Nonpublic Data by reason of this Protective Order shall
neither use nor disclose the Trade Secret Information, Security Information,
and/or Nonpublic Data for purposes of business or competition, or any other
purpose other than the purposes of preparation for and conduct of these
proceedings, and then solely as contemplated herein, and shall take reasonable
precautions to keep the Trade Secret Information, Security Information, and/or
Nonpublic Data secure and in accordance with the purposes and intent of this
Protective Order.
10. Reservation
of Rights. The parties hereto
affected by the terms of this Protective Order further retain the right to
question, challenge, and object to the admissibility of any and all data,
information, studies and other matters furnished under the terms of this
Protective Order in response to interrogatories, requests for information or
documents or cross-examination on the grounds of relevancy or materiality.
11. Inadvertent
Disclosure. No party shall have
waived its right to designate any documents, data, information, studies, or
other materials as Trade Secret Information, Security Information, or Nonpublic
Data by inadvertent disclosure, provided the disclosing party thereafter gives
written notice to the recipient(s) of such information that it should have been
designated as Trade Secret Information, Security Information, or Nonpublic
Data. From and after receipt of such
notice, the previously disclosed information subsequently identified as Trade Secret
Information, Security Information, or Nonpublic Data shall be treated as Trade
Secret Information, Security Information, or Nonpublic Data for purposes of
this Protective Order.
Dated: April _28, 2009
/s/ Richard C.
Luis__________
RICHARD C.
LUIS
Administrative
Law Judge
OAH
Docket No. 7-2500-19797-2
MPUC
Docket Nos. E-002/CN-08-509
E-002/CN-08-510
E-002/GS-08-690
STATE
OF MINNESOTA
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE PUBLIC
UTILITIES COMMISSION
|
In
the Matter of the Application of Northern States Power Company, a Minnesota
Corporation, for a Certificate of Need for the Prairie Island Nuclear
Generating Plant for an Extended Power Uprate In
the Matter of the Application of Northern States Power Company, a Minnesota
Corporation, for a Certificate of Need for the Prairie Island Nuclear
Generating Plant for Additional Dry Cask Storage In
the Matter of the Application of Northern States Power Company, a Minnesota
Corporation, for an LEPGP Site Permit for the Prairie Island Nuclear Generating
Plant (PINGP) Extended Power Uprate Project |
EXHIBIT A NONDISCLOSURE
AGREEMENT |
I, the undersigned, hereby acknowledge that I have read the
attached Protective Order dated _____________, 2009 in Office of Administrative
Hearings Docket No. 7-2500-19797-2 and Minnesota Public Utilities Commission
Docket Nos. E-002/CN-08-509, E-002/CN-08-510, and
E-002/GS-08-690, and understand the terms thereof and agree to be
bound by all such terms. Without
limiting the generality of the foregoing, I agree not to disclose to any person
or entity not authorized to receive materials designated “TRADE SECRET
[SECURITY] INFORMATION—NONPUBLIC DATA” under the terms of said Protective
Order, or any copies or extracts of information derived therefrom, which have
been disclosed to me. I further agree to
use any such materials disclosed to me solely for the purpose of this
proceeding and for no other purpose.
I hereby submit myself to the jurisdiction of the Office of
Administrative Hearings in Minnesota and the Minnesota Public Utilities
Commission for the purpose of enforcing said Protective Order.
Date:
________________________
____________________________________
Signature
____________________________________
Type
or Print Name
____________________________________
Address
____________________________________
Name
of Employer
____________________________________
Name
of Party