ML24206A104

Joint Motion for Proposed Protective Order Governing Disclosure of Sensitive Unclassified Non-Safeguards Information and Non-Disclosure Declaration

ML24206A104
Person / Time
Site:	Oconee
Issue date:	07/24/2024
From:	Mary Woods NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 57060, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2
Download: ML24206A104 (0)

Text

July 24, 2024

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of

DUKE ENERGY CAROLINAS, LLC Docket Nos. 50- 269-SLR- 2, 50- 270- SLR- 2, (Oconee Nuclear Station, Units 1, 2, and 3 50-287-SLR- 2

JOINT MOTION FOR PROPOSED PROTECTIVE ORDER GOVERNING DISCLOSURE OF SENSITIVE UNCLASSIFIED NON- SAFEGUARDS INFORMATION AND NON- DISCLOSURE DECLARATION

Pursuant to the Atomic Safety and Licensing Boards (Licensing Board) July 8, 2024,

Memorandum and Order, and consistent with 10 C.F.R. § 2.323(b), the U.S. Nuclear Regulatory

Commission (NRC) Staff and Duke Energy Carolinas, LLC, hereby submit for the Licensing

Boards approval, a joint proposed protective order and non- disclosure declaration covering

disclosure of sensitive unclassified non- safeguards information (SUNSI) in this proceeding,

enclosed as Attachment 1.

Counsel for Duke Energy has agreed to allow the NRC Staff to submit this joint motion

on behalf of the NRC Staff and Duke Energy. The NRC Staff and Duke Energy respectfully

request that the Licensing Board issue the attached protective order as a suitable mechanism to

be used in this proceeding to govern access to and the disclosure of SUNSI.

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Respectfully submitted,

/Signed (electronically) by/

Mary Frances Woods Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555- 0001 Telephone: (301) 287- 3514 E-mail: Mary.Woods@nrc.gov Dated in Rockville, MD this 24th of July 2024

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CONSULTATION CE RTIFICATION

Pursuant to 10 C.F.R. § 2.323(b), I hereby certify that the NRC Staff has made a sincere effort to contact the other participants in this proceeding and resolve the issues raised in the above motion. Duke Energy indicated through its counsel that it supports and joins the motion . The Staffs sincere efforts to engage the Petitioners on the subject of this motion and resolve the issues were unsuccessful. Petitioners were offered the opportunity to comment on and join the motion, as well as propos e edits to both the draft protective order and non-disclosure declaration. Petitioners offered no comments or edits. Petitioners oppose this motion and reserve the right to respond to i t.

Respectfully submitted,

/Signed (electronically) by/

Mary Frances Woods Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555- 0001 Telephone: (301) 287-3514 E-mail: Mary.Woods@nrc.gov Dated in Rockville, MD this 24th of July 2024 4

Attachment 1

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[ D AT E ]

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

Before Administrative Judges:

G. Paul Bollwerk, III, Chair Dr. Sue H. Abreu Dr. Arielle J. Miller

In the Matter of

DUKE ENERGY CAROLINAS, LLC Docket Nos. 50- 269-SLR- 2, 50- 270- SLR- 2, (Oconee Nuclear Station, Units 1, 2, and 3 50- 287-SLR- 2

[PROPOSED]

PROTECTIVE ORDER (Protective Order Governing the Disclosure of Sensitive Unclassified Non-Safeguards Information)

1. This Protective Order shall govern the access, disclosure, and use of all Sensitive Unclassified Non-Safeguards Information (SUNSI) in this proceeding. For the avoidance of doubt, SUNSI as used in this Protective Order is information designated as containing potentially Critical Energy/Electric Infrastructure Information , pending final determination by the Federal Energy Regulatory Commission1. This Protective Order shall remain in effect until specifically amended or terminated by the Atomic Safety and Licensing Board (Licensing Board) (or the Commission).

2. Persons who may have access to SUNSI pursuant to this Protective Order are designated the Authorized Recipients. All Authorized Recipients must execute a copy of the Non-Disclosure Declaration designated as [Attachment A] to this Order and serve a copy of that executed Non- Disclosure Declaration upon the Electronic Information Exchange (EIE) in the above-captioned proceeding. An Authorized Recipient who does not execute and file the Non-Disclosure Declaration is not authorized to access SUNSI in this proceeding. The following persons are designated as Authorized Recipients in this proceeding: (1) Diane Curran, (2) Jeffrey Mitman, and (3)

Paul Gunter.

1 See 16 U.S.C. § 824o- 1; 18 C.F.R. § 388.113.

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3. Authorized Holders of SUNSI include:

a. Authorized Recipients;

b. Personnel and contractors of the NRC (including the Commission (or Licensing Board or Presiding Officer appointed by the Commission) and their staff, and Commission adjudicatory employees as defined by 10 C.F.R. § 2.4)  ; and

c. Personnel, contractors, and legal counsel of Duke Energy Carolinas LLC and their affiliates.

4. Other than the requirements set forth in this Protective Order for filing documents, the terms of this Protective Order do not apply to NRC personnel and contractors. The NRCs use of SUNSI is governed by NRC regulations and policies as well as other applicable laws.

5. SUNSI shall not be used or reproduced by Authorized Recipients except as necessary for the conduct of this proceeding.

6. Access to SUNSI by Authorized Recipients pursuant to this Protective Order shall be treated as confidential by Authorized Recipients and shall not be disclosed by Authorized Recipients in any form or in any manner to any person except Authorized Holders. Authorized Recipients may copy and take notes of SUNSI , but such copies and notes become SUNSI subject to the terms of this Protective Order. Authorized Recipients may generate documents containing SUNSI, but such documents are also subject to the terms of this Protective Order. Authorized Recipients shall not reveal, either during or after this proceeding, any SUNSI that is disclosed to Authorized Recipients pursuant to this Protective Order.

7. Marking Documents Containing SUNSI:

a. Each document containing SUNSI shall be marked CONTAINS PROTECTED INFORMATION - SUBJECT TO PROTECTIVE ORDER in a conspicuous manner at the top of every page (including the first page or cover page and transmittal documents) and centered when feasible.

b. Electronic storage media (including, but not limited to USB sticks, removable hard drives, CD ROMs, or DVDs) containing the protected information shall be marked SUNSI.

c. Authorized Recipients shall treat unmarked information that qualifies as SUNSI in accordance with the terms of this Protective Order.

8. Safeguarding SUNSI: Authorized Recipients shall take reasonable precautions to guard against unauthorized disclosure of SUNSI. Among the reasonable precautions, the following measures shall be included:

a. Each Authorized Recipient shall establish controlled environments in which to protect SUNSI from unauthorized access or disclosure and make use of those controlled environments. A controlled environment is any area or space with adequate physical or procedural controls to protect SUNSI from unauthorized access or disclosure. A controlled environment must satisfy the requirements in paragraphs 8.b to 8.d of this Protective Order.2

2 An acceptable controlled environment must prevent unauthorized individuals from accessing, observing, or overhearing the protected information. Thus, an Authorized Recipient should use a computer to view or process the protected information only if the computer screen cannot be viewed by unauthorized

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b. Each Authorized Recipient shall reasonably ensure that unauthorized individuals cannot access, observe, or overhear SUNSI .

c. Each Authorized Recipient shall keep SUNSI under their direct control or store SUNSI in a secure location such as a locked filing cabinet, closet, or other storage containers so that only Authorized Holders can observe or access the SUNSI.

d. Each Authorized Recipient shall restrict access to electronic information systems containing SUNSI so that only Authorized Holders can observe or access the SUNSI.

This obligation includes (but is not limited to) ensuring all electronic files containing SUNSI are encrypted and password protected when not in use; and, if storing such files in a cloud server, ensuring the cloud service provider uses encrypted servers and such files are stored in a password- protected account to which only the Authorized Recipient has access. Each Authorized Recipient shall furthermore take reasonable steps to ensure that electronic information systems containing SUNSI have up to date virus and security protections.

9. SUNSI may be transmitted only to Authorized Holders and only in accordance with the following requirements:

a. SUNSI shall be electronically transmitted (such as by computer, tablet, smartphone, etc.) in encrypted form.

b. SUNSI may be discussed only between or among Authorized Holders.

c. SUNSI shall not be transmitted by facsimile.

d. SUNSI may be physically transmitted only by the following means:

i. by hand delivery from an Authorized Holder to another Authorized Holder, or ii. by U.S. mail or commercial delivery service in an opaque envelope addressed to the Authorized Holder with no external markings to indicate the presence of SUNSI.

10. Documents containing SUNSI shall be filed using the EIE system as follows:

a. The person filing the document shall choose the option Non-Public Submission to prevent the document from being filed in the public docket of the proceeding.

b. In the Submission Comment portion of the Non-Public Submission form, the filer shall include a statement that the filing contains protected information.

c. Only the Licensing Board (or the Commission), NRC Staff counsel, the Office of the Secretary (HearingDocket@nrc.gov), the Office of Commission Appellate Adjudication (OCAAmail@nrc.gov), and other Authorized Holders shall be checked as recipients on the electronic service list.

d. All non-public filings shall be accompanied by a separate, publicly filed one- page letter that briefly identifies the nature of the non -public filing without including SUNSI.

11. Persons may not reveal SUNSI during any open hearing or conference session. Any person who anticipates discussing SUNSI at any hearing or conference shall notify the Licensing Board (or the Commission) and other participants at least three ( 3) business days prior to that hearing or conference that SUNSI may be discussed. During any open hearing or conference, any person who intends to discuss SUNSI shall notify the Licensing Board (or the Commission) and the participants that such discussion will contain SUNSI prior to the statement being made. Such statements containing SUNSI

individuals. Also, viewing or processing the protected information on a public computer, such as those found in public libraries, would not be acceptable, because unauthorized individuals could access the computers memory to retrieve the protected information.

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may be provided only in closed session as permitted by the Licensing Board (or the Commission).

12. All Authorized Recipients shall maintain a log of all copies of materials SUNSI within their possession or control, including documents derived from SUNSI.

13. If any Authorized Recipient has reason to believe that SUNSI may have been lost or misplaced, or that SUNSI has otherwise become available to unauthorized persons, notification shall promptly be made to the Licensing Board (or the Commission), NRC Staff counsel, and counsel for Duke Energy Carolinas LLC regarding that belief and the reason for that belief by filing a notification through the EIE system as a non- public submission in accordance with paragraphs 10. a to 10.d of this Protective Order, without publicly filing a cover letter as would otherwise be required by paragraph 10. d of this Protective Order.

14. The Licensing Board (or the Commission) may alter or amend this Protective Order and resolve disputes regarding the application of its terms. Petitioners, Applicant, or NRC Staff may seek amendments to this Protective Order or the Non-Disclosure Declaration via motion (see 10 C.F.R. Part 2).

15. SUNSI shall remain available to each Authorized Recipient until the Access Termination Date. The Access Termination Date is the earlier of (a) the date of an order by the Licensing Board (or the Commission) rescinding the right of access granted by this Protective Order; (b) the date of an order by the Licensing Board (or the Commission) terminating this proceeding for any SUNSI other than that needed to pursue or defend against an appeal of an order by the Licensing Board (or the Commission); or (c) the date that an order terminating this proceeding is no longer subject to judicial review for any SUNSI that is needed to pursue or defend against an appeal of an order by the Licensing Board (or the Commission).

16. Within 10 days of the Access Termination Date, Authorized Recipients shall either destroy all materials containing SUNSI or return such materials to the NRC Staff. Each Authorized Recipient shall take those actions necessary t o satisfy this obligation. Within 10 days of the Access Termination Date, each Authorized Recipient shall execute the attached Termination of Possession Declaration [Attachment B ], stating that the SUNSI within their possession or control has been either destroyed or returned. Within 10 days of the Access Termination Date, all executed Termination of Possession Declarations shall be filed via EIE.

17. This Protective Order does not govern SUNSI owned by third parties and in the possession or control of the parties (Third- Party Protected Information). Should any party seek access to Third- Party Protected Information, then the producing party shall make reasonable efforts to obtain from the owner of the Third-Party Protected Information any necessary approvals for its release, subject to any appropriate non-disclosure provisions. If there are costs associated with acquiring the rights or approval to produce Third-Party Protected Information (e.g., copyright or subscription costs), then the producing party will inform the requesting party of the total costs involved, and the requesting party must agree to pay those costs as a condition of being supplied the Third- Party Protected Information. If the requesting party does not agree to pay these costs, then the producing party is not obligated to go through the effort of acquiring approval to produce the Third- Party Protected Information.

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18. Nothing in this Protective Order shall preclude a participant to this proceeding from objecting to the use of an exhibit, testimony, or a pleading because it contains SUNSI.

The Licensing Board (or the Commission) may issue additional orders concerning the use of SUNSI.

19. Nothing in this Protective Order shall preclude any person from seeking through discovery in any other administrative or judicial proceeding any information protected by this Protective Order.

20. If information identified in this proceeding as SUNSI comes into the possession of or is known by any participant independently of SUNSI accessed in this proceeding, and such knowledge was acquired without violation of law or other requirements applicable to such participant directing the participant to keep such information confidential, use of that document or information in this proceeding, without compliance with the terms of this Protective Order, shall not be a violation of the terms of this Protective Order. If a party asserts that disclosure of such information or document was a violation of this Protective Order, then the participant asserting independent knowledge of the contents of SUNSI or independent access to such a document shall have the burden of proving that (1) such information was independently obtained and (2) was not improperly disclosed in contravention of any law or other non-disclosure promise.

21. Any violation of this Protective Order or of any Non -Disclosure Declaration executed hereunder may result in the imposition of sanctions as the Licensing Board (or the Commission) deems appropriate. 3 Nothing in this Protective Order restricts or waives Applicants or the NRCs rights to pursue any other legal or equitable remedies that may be available in the event of actual or anticipated disclosure of SUNSI.

22. Executed Non-Disclosure Declarations must be filed within 3 business days after the issuance of this Protective Order. No document transmittal to the participants is necessary as part of this protective order.

3 See Statement of Policy on Conduct of Licensing Proceedings, CLI 8, 13 NRC 452, 454 (1981).

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Attachment A

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of

DUKE ENERGY CAROLINAS, LLC Docket Nos. 50- 269-SLR-2, 50- 270- SLR-2, (Oconee Nuclear Station, Units 1, 2, and 3 50- 287-SLR-2

NON- DISCLOSURE DECLARATION

I,____________________________________, state:

1. I have read the Licensing Boards Protective Order issued in the above-captioned proceeding and will comply in all respects with its terms and conditions regarding the Sensitive Unclassified Non- Safeguards Information (SUNSI) produced under that Protective Order. I will protect and keep confidential all SUNSI in accordance with the terms of the Protective Order and of this Non -Disclosure Declaration.

2. I will not disclose SUNSI to anyone except an Authorized Holder as defined in the Protective Order. I will protect documents containing SUNSI in written or recorded form (including any portions of transcripts of in camera hearings, filed testimony, or any other documents containing such SUNSI), so that the SUNSI contained therein remains at all times under the control of an Authorized Holder and is not revealed to anyone else.

3. When not under my direct control or the direct control of another Authorized Holder, I will keep and protect all documents containing SUNSI (including, without limitation, transcripts, pleadings, documents that I generate, and any notes and copies that I make) in a secure locked place such as a filing cabinet, closet, or other storage container.

4. I will restrict access to electronic information systems with SUNSI in accordance with the terms of the Protective Order.

5. I will transmit SUNSI and file documents containing SUNSI only in accordance with the terms of the Protective Order.

6. I will mark each document containing SUNSI in accordance with the terms of the Protective Order.

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7. Neither during nor after this proceeding, will I publicly reveal any SUNSI that I receive by virtue of this proceeding as long as the information remains SUNSI.

8. I acknowledge that any violation of the terms of this declaration or the Licensing Boards Protective Order, which incorporates the terms of this declaration, may result in the imposition of such sanctions on me that the Licensing Board (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 SUNSI.

WHEREFORE, I certify under penalty of perjury that the foregoing is true and correct and do solemnly agree to protect and keep confidential such SUNSI as may be disclosed to me in the above- captioned proceeding in accordance with the terms of the Protective Order and of this Non-Disclosure Declaration.

Signature Date Executed

Address: _________________________________________________________

Phone Number: ____________________________________________________

Email: ____________________________________________________________

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Attachment B

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of

DUKE ENERGY CAROLINAS, LLC Docket Nos. 50- 269-SLR-2, 50- 270- SLR-2, (Oconee Nuclear Station, Units 1, 2, and 3 50- 287-SLR-2

TERMINATION OF POSSESSION DECLARATION I,_______________________________________, state:

In accordance with the Licensing Boards Protective Order in the above -captioned proceeding, I have destroyed or returned the Sensitive Unclassified Non- Safeguards Information (SUNSI) in my possession by one or more of the following methods (check all that apply):

_______I have destroyed materials containing SUNSI in accordance with the Protective Order.

_______I have returned SUNSI to the NRC Staff.

_______I have returned SUNSI to the Petitioners representative so that they can destroy or return the SUNSI in accordance with the Protective Order.

WHEREFORE, I certify under penalty of perjury that the foregoing is true and correct and do solemnly agree to CONTINUE to protect and keep confidential such SUNSI as may have been disclosed to me in connection with the above- captioned proceeding in accordance with the terms of the Protective Order and of the Non-Disclosure Declaration I previously executed.

Signature Date Executed

Address: _________________________________________________________

Phone Number: ____________________________________________________

Email: ____________________________________________________________

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of

DUKE ENERGY CAROLINAS, LLC Docket Nos. 50- 269-SLR- 2, 50- 270- SLR- 2, (Oconee Nuclear Station, Units 1, 2, and 3 50- 287-SLR- 2

Certificate of Service

Pursuant to 10 C.F.R §2.305, I hereby certify that copies of the foregoing JOINT MOTION FOR

PROPOSED PROTECTIVE ORDER GOVERNING DISCLOSURE OF SENSITIVE

UNCLASSIFIED NON- SAFEGUARDS INFORMATION AND NON- DISCLOSURE

DECLARATION, dated July 24, 2024, have been served upon the Electronic Information

Exchange (the NRCs E-Filing System), in the captioned proceeding, this 24th day of July 2024.

/Signed (electronically) by/

Mary Frances Woods Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555- 0001 Telephone: 301-287-3514 E-mail: Mary.Woods@nrc.gov Dated in Rockville, MD this 24th day of July 2024