ML24213A102
| ML24213A102 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 07/30/2024 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 57065, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2, NRC-2949, ASLBP 24-985-03-SLR-BD01 | |
| Download: ML24213A102 (0) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Duke Energy Carolinas, Inc.
Docket Number:
50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2 ASLBP Number:
24-985-03-SLR-BD01 Location:
teleconference Date:
Tuesday, July 30, 2024 Work Order No.:
NRC-2949 Pages 150-246 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1716 14th Street, N.W.
Washington, D.C. 20009 (202) 234-4433
150 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION 2
+ + + + +
3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4
+ + + + +
5 PRE-HEARING CONFERENCE 6
x 7
In the Matter of: : Docket No.
8 DUKE ENERGY CAROLINAS, LLC : 50-269-SLR-2 9
(Oconee Nuclear Station, : 50-270-SLR-2 10 Units 1, 2, and 3) : 50-287-SLR-2 11
- ASLBP No.
12
- 24-985-03-SLR-BD01 13
x 14 Tuesday, July 30, 2024 15 16 Teleconference 17 18 BEFORE:
19 G. PAUL BOLLWERK, Chair 20 SUE H. ABREU, Administrative Judge 21 ARIELLE J. MILLER, Administrative Judge 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
151 APPEARANCES:
1 2
On Behalf of Duke Energy Carolinas, LLC 3
RYAN K. LIGHTY, ESQ.
4 of:
1111 Pennsylvania Avenue, N.W.
6 Washington, D.C. 20004 7
202-739-5274 8
ryan.lighty@morganlewis.com 9
10 On Behalf of Beyond Nuclear and Sierra Club 11 DIANE CURRAN, ESQ.
12 of:
Harmon, Curran, Spielberg & Eisenberg, 13 LLP 14 1725 DeSales Street, N.W., Suite 500 15 Washington, D.C. 20036 16 240-393-9285 17 dcurran@harmoncurran.com 18 and 19 PAUL GUNTER 20 of:
Beyond Nuclear Reactor Oversight Project 21 7304 Carroll Avenue #182 22 Takoma Park, Maryland 20912 23 paul@beyondnuclear.org 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
152 On Behalf of the Nuclear Regulatory Commission 1
MARY FRANCES WOODS, ESQ.
2 KEVIN BERNSTEIN, ESQ.
3 of:
Office of the General Counsel 4
Mail Stop - O-14 A44 5
U.S. Nuclear Regulatory Commission 6
Washington, D.C. 20555-0001 7
516-765-6523 (Wood) 8 301-415-1001 (Bernstein) 9 mary.woods@nrc.gov 10 kevin.bernstein@nrc.gov 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
153 P-R-O-C-E-E-D-I-N-G-S 1
2:30 p.m.
2 JUDGE BOLLWERK: Good afternoon, I'm 3
Administrative Judge Paul Bollwerk, the chair of this 4
Atomic Safety and Licensing Board. And today we're 5
here to conduct a pre-hearing conference in this 10 6
Code of Federal Regulations or CFR Part 52 subsequent 7
license renewal, or SLR proceeding, in which 8
applicant, Duke Energy Carolinas, LLC, or Duke, 9
requests that the 10 CFR Part 50 operating licenses 10 for its Oconee Nuclear Station Units 1, 2, and 3 be 11 extended for a second 20 year period.
12 On June 24th, 2024, the board heard 13 presentations from the participants of this 14 proceeding, the NRC staff, Duke, and petitioners 15 Beyond Nuclear, Incorporated, and the Sierra Club, 16 Incorporated, regarding the admissibility of 17 petitioner's three National Environmental Policy Act 18 or NEPA related contentions, an issue that remains 19 pending before the board.
20 However, shortly after the argument 21 transcript was submitted to the docket of this 22 proceeding, the board was contacted by email by NRC 23 staff counsel who indicated that there were concerns 24 that the transcript might contain non-public 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
154 information, and requested that the transcript remain 1
non-public pending NRC staff review.
2 The board responded in a June 28th, 2024 3
order, in which it indicated that the NRC Office of 4
the Secretary, which has responsibility for the 5
agency's electronic hearing docket, or EHD, had placed 6
a transcript in EHD's non-public protective order 7
file, and that the agency's court reporting service 8
had been alerted not to make the transcript available 9
to anyone requesting a copy.
10 Also in that issuance the board requested 11 a status report from the NRC staff by July 3rd, 2024, 12 providing its best estimate of when it would complete 13 its review of the transcript, and inform the board and 14 the other participants about the need for transcript 15 redaction. Further, because the transcript already 16 had been served to all the participants of this 17 proceeding.
18 The board requested that Duke and the 19 petitioners not disseminate the transcript or the 20 information it contained to anyone who would not 21 eventually be the subject of an affidavit of non-22 disclosure if it was determined that the transcript 23 contains non-public information such that a protective 24 order needs to be implemented for this proceeding.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
155 In its July 3rd, 2024 status report, the 1
staff indicated that its review process was 2
continuing, and indicated it would provide another 3
status report on July 23rd, 2024. In response, the 4
board entered an order dated July 8th, 2024, in which 5
the board directed that while awaiting the staff's 6
next status report, to ensure the participants and the 7
public have appropriate and timely access to the 8
documents in this proceeding, the participants were to 9
confer among themselves, and come to an agreement 10 about the contents of a proposed protective order, and 11 an associated affidavit of non-disclosure.
12 Further, if in its next status report the 13 staff indicated that document withholding or redaction 14 was necessary because of the presence of non-public 15 information, the next business day the staff was to 16 submit a joint proposed protective order, and an 17 associated affidavit of non-disclosure for board 18 consideration and adoption.
19 Additionally, in identifying the need to 20 withhold or redact non-public information, the staff 21 was to indicate the basis supporting such an action 22 relative to the various categories for which non-23 disclosure information is authorized as specified in 24 10 CFR Section 2.390(a). And finally, the board 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
156 provided a list of possible dates for a potentially 1
closed virtual pre-hearing conference shortly after 2
the submission of the joint proposed protective order 3
to discuss any issues regarding the potential non-4 public information.
5 In its July 23rd, 2024 status update, the 6
NRC staff stated that it was consulting with the 7
Federal Energy Regulatory Commission, or FERC on 8
information in this proceeding, and that in the 9
interim it would propose information be redacted in 10 the proceeding, so that the licensing board, if it 11 chose to do so, could make a decision on contention 12 admissibility.
13 It also indicated that it had consulted 14 with the other participants, and it would file a joint 15 motion for the entry of a protective order on the next 16 day, July 24th. Additionally, the staff reported that 17 it initiated consultation with the participants 18 regarding a draft proposed joint motion for redaction 19 of the June 24th, 2024 initial pre-hearing conference 20 transcript consistent with 10 CFR Section 21 2.390(a)(iii).
22 The next day the NRC staff filed a motion 23 for entry of a proposed protective order with an 24 accompanying proposed protective order, and an 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
157 associated non-disclosure agreement, and possession 1
termination declaration. The staff also indicated 2
that while Duke joined in the motion, petitioners 3
opposed the motion, and reserved the right to respond 4
to it.
5 In a July 25th, 2024 directive, the 6
licensing board indicated that because of the ongoing 7
FERC review of what the proposed protective order 8
identified as potential non-public sensitive 9
unclassified non-safeguards information, or SUNSI, 10 specifically critical energy/electric infrastructure 11 information, or CEII.
12 The matter of whether to adopt a 13 protective order in this proceeding to govern access 14 to and dissemination of non-public information 15 warranted a prompt resolution. Accordingly, the board 16 set a July 29th, 2024 deadline for petitioners to file 17 any written opposition to the staff's motion for entry 18 of a protective order.
19 And based on the scheduling information 20 previously provided by the participants, established 21 the time and date for this public pre-hearing 22 conference in which it would hear presentations from 23 the participants on whether to grant the pending staff 24 motion, as well as on additional related items as 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
158 specified in the order.
1 Petitioners filed their response to the 2
staff's motion for protective order on July 29th, in 3
which they opposed the entry of a protective order, 4
and suggested the board take alternative steps in 5
dealing with any CEII. Before beginning the 6
participant's presentations, I would like to introduce 7
the board members, and then have the representatives 8
of the participants identify themselves for the 9
record, along with any individuals they have 10 designated as available to provide them assistance in 11 responding to the board's questions.
12 With respect to the board, appearing 13 virtually is Administrative Judge Sue Abreu, an 14 engineer, a nuclear medicine physician, and an 15 attorney who also serves as the licensing board 16 panel's associate chief administrative judge 17 technical. And seated on my left here in the 18 licensing board panel's judges' chambers is Judge 19 Arielle Miller, who is a nuclear, and a mechanical 20 engineer.
21 As I indicated at the outset, my name is 22 Paul Bollwerk, and I'm an attorney, and the chair of 23 this licensing board. With that, let's turn to the 24 participants to identify themselves for the record, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
159 starting with the NRC staff, then moving to applicant 1
Duke, and finally to the petitioners. NRC staff 2
please.
3 MS. WOODS: Good afternoon, may it please 4
the board, my name is Mary Frances Woods, and I'll be 5
representing the NRC staff in this matter. I am 6
joined in the room by one of my co-counsels, Kevin 7
Bernstein, and other members of the NRC staff. And 8
remotely, one of my other co-counsels, Megan Wright, 9
as well as other NRC staff. Thank you.
10 JUDGE BOLLWERK: Mr. Lighty? I think 11 you're muted, sir.
12 JUDGE MILLER: I don't think he has any 13 sound at all.
14 MR. LIGHTY: Can you hear me now, Your 15 Honor?
16 JUDGE BOLLWERK: Yes, I can, thank you.
17 MR. LIGHTY: Very good, thank you. May it 18 please the board, Your Honors, Ryan Lighty, appearing 19 on behalf of Duke Energy Carolinas, LLC. I am joined 20 remotely by my co-counsel Paul Bessette, and Tracy 21 Leroy, as well as personnel from Duke, Rounette Nader, 22 Greg Robinson, and Adam Johnson.
23 JUDGE BOLLWERK: All right, thank you.
24 And Ms. Curran?
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
160 MS. CURRAN: Good afternoon, this is Diane 1
Curran, representing Beyond Nuclear and the Sierra 2
Club. And also on the video, but in a non-speaking 3
role are Paul Gunter of Beyond Nuclear, and our 4
expert, Jeffrey Mitman. And I just wanted to mention 5
to the board that we are going to be, if we need to, 6
in contact by text messages, and I am going to stay on 7
mute as much as I can.
8 But there may be beeping noises if I'm 9
speaking, because they're trying to tell me something, 10 and we're going to try to make it as unintrusive as 11 possible. We're just making the best possible use of 12 Zoom for me to be able to consult them. Thank you.
13 JUDGE BOLLWERK: All right, thank you for 14 the warning, appreciate it. All right, well, thank 15 you all counsel then. And I would note that we made 16 available to the participants and interested members 17 of the public, including via the board's scheduling 18 issuance in this case, and an NRC website notice, 19 information on how to access this conference by 20 telephone on a listen only basis.
21 We hope that those members of the public 22 or others who wish to listen to this conference have 23 been able to access the bridge line this afternoon.
24 And as a courtesy to those members of the public, and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
161 others who are joining us via a listen only telephone 1
connection, as they start to speak in delivering their 2
argument or responding to a board question, counsel 3
should please identify themselves so it will be clear 4
who is talking, something the board's judges will 5
attempt to do as well.
6 I would observe as well that this 7
proceeding is being transcribed, and a transcript 8
should be available to the participants later this 9
week via agency e-filing system notice, with 10 incorporation into the NRC's publicly available 11 electronic hearing docket shortly thereafter. And in 12 that regard, I would point out that in our July 25 13 issuance, the board indicated that it anticipated that 14 the matters involved in this pre-hearing conference 15 could be discussed without referencing any non-public 16 information.
17 Nonetheless, since the NRC staff seemingly 18 has the best understanding about exactly what 19 information potentially could be non-public, it is 20 also our expectation that they will advise the board 21 promptly if they believe any discussion is moving 22 toward information that potentially could be non-23 public, so as to avoid the board having to make this 24 transcript a non-public document as well.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
162 As to the process that will follow for 1
today's presentations, as we outline in our July 25th, 2
2024
- issuance, each participant's designated 3
representative has been allotted a period of time 4
within which to present that participant's position 5
regarding the entry of a protective order in this 6
case.
7 We will hear first from the NRC staff as 8
the proponent of the pending motion for entry of a 9
protective order, which has been given a total of 15 10 minutes, of which they may reserve up to five minutes 11 for rebuttal presentation. Then Duke, which the staff 12 has indicated supports the motion, will be heard from, 13 and also has been allotted 15 minutes to present its 14 position, of which five minutes can be reserved for 15 rebuttal.
16 Then the petitioners will have 15 minutes 17 to present their opposition to the motion, after which 18 Duke, and then the NRC staff will have an opportunity 19 for rebuttal. And while board members normally might 20 interpose questions during a participant's argument 21 presentation, as we did in the June 24th initial pre-22 hearing conference regarding contention admissibility, 23 we'll endeavor to wait until all the participant's 24 presentations are concluded.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
163 Then to the degree they haven't already 1
been explored in the context of participant's motion 2
presentation, we'll explore several questions we 3
outlined in our July 25th, 2024 order that have been 4
risen about this non-public information matter. All 5
that being said, and turning to Ms. Woods, how much 6
time do you wish to reserve for rebuttal?
7 MS. WOODS: Thank you, Your Honor, I would 8
like to reserve five minutes for the period of 9
rebuttal. Thank you.
10 JUDGE BOLLWERK: All right, and you're on.
11 MS. WOODS: Thank you, Your Honor. Good 12 afternoon, and may it please the board. My name is 13 Mary Frances Woods, and I am representing the NRC 14 staff in this matter. The discussion here today is 15 centered around a key point, ensuring the protection 16 of information in this proceeding, specifically 17 information the NRC staff has initially identified as 18 potentially containing critical electric energy 19 infrastructure information, or CEII.
20 Specifically the item for the licensing 21 board today for consideration is the joint motion for 22 a proposed protective order and non-disclosure 23 declaration submitted by the NRC staff, which was 24 supported and joined by Duke Energy. First, I would 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
164 like to take a minute to briefly provide a high level 1
discussion of CEII.
2 There is a statutory requirement to 3
protect critical electric and energy infrastructure 4
information as provided in Title 16 of the U.S. Code 5
at Section 824(o)-1(d)(1) through (2). Both describe 6
CEII as specific engineering vulnerability or detailed 7
design information about proposed or existing critical 8
infrastructure, physical or virtual, that one, relates 9
details about the production, generation, 10 transmission, or distribution of energy.
11 Two, could be useful to a person planning 12 an attack on critical infrastructure. Three, is 13 exempt from mandatory disclosure under the Freedom of 14 Information Act.
And
- four, gives strategic 15 information beyond the location of the critical 16 infrastructure. FERC goes on to say that critical 17 energy electric infrastructure means a system or asset 18 of the bulk power system, physical or virtual, the 19 incapacity or destruction of which negatively could 20 affect national security, economic security, public 21 health or safety, or any combination of such matters.
22 Under 16 USC 824(o)-1(d)(3), FERC has the 23 statutory authority to designate as CEII both its own 24 information, and information of other agencies.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
165 Importantly, FERC is the only entity that can formally 1
designate information as CEII for the NRC. However, 2
FERC has encouraged other federal agencies to take all 3
necessary steps to protect information that may be 4
CEII.
5 The NRC does not have discretion to 6
publicly release information that FERC has designated 7
as CEII. In 2018 the NRC and FERC entered into a 8
memorandum of understanding or MOU available at 9
ML18164A182, which was most recently renewed in April 10 2024. The MOU sets forth the basic parameters, under 11 which the NRC and FERC will cooperate under 18 CFR 12 388.13(a) to protect the material in the NRC's 13 possession that may be CEII.
14 Further, the MOU provides that NRC staff 15 will be responsible for initially identifying 16 information in its custody that contains CEII as 17 defined by 18 CFR 388.113©, and FERC staff will be 18 available to consult with NRC staff about any CEII.
19 The NRC handles CEII under its sensitive unclassified 20 non-safeguards information, or SUNSI processes, of 21 which CEII is a SUNSI group.
22 The NRC staff will be proposing redactions 23 to the 2024 initial pre-hearing conference transcript 24 in this matter. Other documents associated with this 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
166 current 2024 adjudicatory proceeding are also 1
impacted. The NRC staff is consulting with the 2
parties regarding the non-public treatment of 3
information associated with this proceeding, and 4
intends to update the licensing board and parties 5
promptly at the conclusion of this consultation.
6 To be clear, those impacted documents will 7
be made temporarily non-public. Should the outcome of 8
the NRC staff's consultation with FERC result in 9
necessary redactions to the documents, those will be 10 made accordingly, and the redacted documents re-11 released for public availability. In other words, the 12 NRC staff would only redact information FERC 13 designates as CEII, and otherwise make the information 14 publicly available.
15 As the NRC staff made the initial 16 identification of information as potentially being 17 CEII, at this point the focus is on ensuring the 18 information is protected as part of this proceeding.
19 The NRC staff acknowledges that this is a unique 20 situation, and recognizes the protection associated 21 with this type of information impacts how information 22 is handled on the subject docket, as well as 23 discussions associated with the information within the 24 scope of this proceeding.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
167 It is important to note that 1
implementation of this protective order, and non-2 disclosure declarations before the licensing board 3
today would not restrict by its terms the petitioner's 4
current access to the limited information identified 5
on this current docket. However, it would ensure the 6
information remains protected during this proceeding, 7
and after its conclusion.
8 Furthermore, it would ensure that the 9
information at issue is not disseminated outside the 10 bounds of this proceeding, or to parties not covered 11 under the protective order and non-disclosure 12 declarations. Thus, in the NRC staff's view, the 13 participants will still be able to fully participate 14 in this proceeding, and are not harmed by the issuance 15 of a protective order in this proceeding.
16 In the NRC staff's view, the protective 17 order is necessary to ensure that information in this 18 proceeding can be properly protected during its 19 pendency. Accordingly, it is the NRC staff's position 20 that the licensing board should issue the protective 21 order submitted by the NRC staff, and supported, and 22 joined by Duke Energy. Thank you.
23 JUDGE BOLLWERK: All right, Mr. Lighty?
24 MR. LIGHTY: Thank you, Your Honors, and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
168 may it please the board, Ryan Lighty on behalf of Duke 1
Energy. We generally agree with the staff's 2
presentation, and will not repeat those same 3
arguments. But perhaps we can add some additional 4
gloss. For the record, I would note that we just 5
received petitioner's 23 page opposition to the motion 6
less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> before this conference.
7 But nevertheless, we will endeavor to 8
address three key arguments that they raised in their 9
opposition. First, the suggestion that a protective 10 order is premature, or unnecessary at this stage.
11 Second, their claims of undue burden and unknown 12 scope.
And
- finally, their assertion that 13 inadvertently disclosed information is forever public.
14 So starting with the first topic, their 15 suggestion that a protective order is premature, or 16 unnecessary at this stage. If the petitioners had 17 their way, they would postpone efforts to protect 18 potentially non-public information until a definitive 19 conclusion has been reached on the status of that 20 information.
21 But that view flies in the face of 22 extensive NRC case law holding exactly the opposite.
23 For more than four decades presiding officers have 24 been instructed that protective orders are an 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
169 appropriate, and I quote, interim measure to avoid 1
delay in the proceedings pending definitive resolution 2
of whether or to what degree information should be 3
withheld from the general public, end quote.
4 That comes from the Metropolitan Edison 5
case, ALAB-807 issued in 1985. And that's precisely 6
the purpose the motion seeks to serve here, is it's 7
important to recognize that the purpose of the 8
protective order is not to deprive petitioners of 9
their ability to access any non-public information for 10 purposes of participating in this proceeding.
11 Duke and the staff have categorically 12 agreed that the petitioners may have access to that 13 information, that's not in dispute. But the objective 14 of the protective order is to prevent disclosure to 15 others who do not have a legitimate purpose. The 16 definition of CEII includes information that could be 17 useful to a person in planning an attack on critical 18 infrastructure that could negatively affect security, 19 economic security, public health or safety, or any 20 combination of those matters.
21 And we would also note that in addition to 22 CEII, the NRC has previously withheld similar 23 information under FOIA Exemption Bravo Seven Foxtrot, 24 and that pertains to information that could reasonably 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
170 be expected to endanger the life or physical safety of 1
any individual. And I would note that courts have 2
routinely upheld the use of that exception to withhold 3
precisely this type of information.
4 So petitioners claim that a protective 5
order is premature, or is unnecessary, those arguments 6
are simply without merit here. Turning next to 7
petitioner's claims of undue burden and unknown scope.
8 The petitioners claim both that a protective order 9
would impose an undue burden on them, and also that 10 the scope of that burden is unknown, but those two 11 assertions are in conflict.
12 If petitioners don't know the scope of the 13 information they may be required to protect, then 14 their claim of undue burden has no factual basis. But 15 as a matter of process, the precise scope of the 16 covered information can't be discussed in a public 17 forum. The scope definition per se is non-public. So 18 simply put, a protective order is needed to facilitate 19 the communication of that scope.
20 And to the extent the petitioners demand 21 otherwise, they're simply trying to put the cart 22 before the horse here. And in any event, the burden 23 of protecting non-public information must be viewed in 24 the context of the interest that is being protected 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
171 here. Life safety. One can hardly imagine a scenario 1
in which the burdens associated with reviewing a 2
relatively small stack of papers would somehow 3
outweigh the significant public interest in protecting 4
life and physical safety.
5 And finally, to petitioner's assertion 6
that inadvertently disclosed information is forever 7
public. As a general matter we do not view this as an 8
issue that must be resolved by the board. As noted in 9
petitioner's opposition at page eight, quote, if 10 petitioners decide to seek disclosure of the redacted 11 information, they will use the NRC's procedures in 10 12 CFR Part 9, and may appeal to federal district court 13 as permitted by the FOIA, end quote.
14 We agree that the agency's normal FOIA 15 process is the appropriate agency process for 16 challenging any determination that information is non-17 public. So unlike challenges to proprietary 18 information designations, where presiding officers are 19 called on to make determinations regarding the 20 designation itself, we are unaware of any regulation 21 or delegation of authority to the board to adjudicate 22 other types of SUNSI determinations or the agency's 23 FOIA obligations.
24 And so petitioner's arguments here about 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
172 what may or may not be non-public, I think simply are 1
not at issue here. But for the record, and as a 2
matter of law, it is quite clear that inadvertent 3
disclosures do not operate as an automatic waiver of 4
non-public information designations. And in fact our 5
brief research has revealed multiple cases in which 6
courts have ordered a receiving party to destroy or 7
return copies of documents that were inadvertently 8
produced in response to a FOIA request.
9 So ultimately in our view the board should 10 grant the protective order here in order to allow the 11 process to move forward, and for the discussion of the 12 scope of covered information to be discussed among the 13 parties. Thank you, Your Honors.
14 JUDGE BOLLWERK: I take it -- I neglected 15 to ask you, you're saving five minutes for rebuttal, 16 I take it?
17 MR. LIGHTY: Yes, Your Honor, thank you.
18 JUDGE BOLLWERK: Thank you. All right, 19 Ms. Curran?
20 MS. CURRAN: Thank you. May it please the 21 board, we have briefed this issue extensively, and I'm 22 not going to go over everything we say in our brief, 23 very happy to answer questions, but I would like to 24 address a couple things that have been said here 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
173 today. I really want to emphasize that ever piece of 1
information that the staff is proposing to redact 2
here, or to withhold, is in the public record.
3 We're not relying on anything that's not 4
a public document, and Mr. Lighty referred a couple 5
times to inadvertent disclosures, these disclosures 6
weren't inadvertent. This is a years' long process of 7
trying to bring to light information about the 8
situation at Oconee, what many members of the public 9
perceive as a failure to adequately protect the Oconee 10 reactors from the risk of flooding.
11 And Mr. Lighty also referred to the 12 importance to safety of withholding this information.
13 From our perspective, shedding light on this 14 information is more important to safety because we 15 need -- we want the public to be aware of this 16 situation. Now, we understand that sometimes there is 17 information that needs to be protected.
18 But a long time ago, at least 10 years 19 ago, 15 years ago, the NRC determined that the 20 information we're using could be released. And the 21 cases that we are relying on, there is a body of cases 22 that relates to inadvertent disclosures, and whether 23 the agency can take back something that was 24 inadvertently released, and whether it can tell 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
174 whoever is holding that information that they have to 1
give it back, or they can't use it.
2 There is another body of cases that says 3
that once the bell has rung, it can't be unrung. Once 4
there is a
formal disclosure under FOIA of 5
information, once the agency has determined that it's 6
non-exempt, that the agency cannot claw that back. We 7
are concerned that this protective order, with its 8
very broad terms, is being used -- that we're being 9
actually asked to participate in the clawing back of 10 this information by agreeing not to disclose or 11 discuss it.
12 And just to illustrate a little bit, this 13 information, much of it has been in the public domain 14 for years now. It's in all kinds of places, it's on 15 ADAMS for sure, we checked. The information that 16 we're relying on, the documents, certain documents may 17 not be there anymore. But you can find it elsewhere 18 on ADAMS.
19 And then there are other places where it 20 is, people have it, individuals have it, organizations 21 have it, it's on something called the Way Back 22 Machine. This is information that has gone out into 23 the public, it's there, it's been there a long time, 24 and to say, to create the fiction that we are being 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
175 given access to this information and we have to 1
protect it, it obliges us now.
2 If we sign this protective order, we've 3
all got to go through all our files, and find any 4
place where we have saved, or copied, or done 5
something with a document that has this information, 6
and find a locked cabinet, and put it in there. And 7
this is information that's been public for a long 8
time. So I hope you can understand how reluctant we 9
are to enter into something like an agreement like 10 this.
11 And I'll say again that for this 12 particular stage of the proceeding, we are not opposed 13 if the licensing board decides that it wants to redact 14 information for purposes of public disclosure, we're 15 not opposed to -- for the purposes of making that 16 decision, to observe those redactions -- if we get an 17 adverse decision from you, if we do a motion for 18 reconsideration, if we do an appeal brief, we're 19 certainly willing to agree to redactions of what we 20 think is public information.
21 But of working through the FOIA process, 22 as Mr. Lighty said, we could go through the 23 administrative process, and try to get it released 24 that way. It's very possible that this proceeding 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
176 will be over soon, because you will decide against it.
1 Certainly happens fairly often to petitioners in cases 2
like this.
3 I think if contentions are admitted, it 4
gets more complicated, and in that event we would ask 5
either the board to engage in a discovery process that 6
would help us sort out what is legitimately public 7
information from what information should be protected, 8
or use the FOIA process to do that. But we think that 9
it's very important as we go forward to sort that out 10 so that we can maximize public disclosure of relevant 11 information.
12 And certainly, we can go on the NRC 13 website, and transparency is a very important value of 14 this agency. So I don't think it's 100 percent clear, 15 supposing you admit at least one contention that could 16 involve what the staff is saying to be SUNSI, we would 17
-- what we would strive to do once the staff had 18 identified information that was claimed to be SUNSI, 19 we would see if we could find it in the public record.
20 And then if it truly was new information, 21 say Duke has made changes to the facility in recent 22 times that have never been disclosed publicly, we 23 would consider entering a protective order for 24 something like that. But we definitely want to be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
177 careful to the extent that we can rely on information 1
that is already in the public record, that can be 2
publicly discussed, that is a very important goal for 3
the petitioners. I'll stop there.
4 JUDGE BOLLWERK: All right. This is Judge 5
Bollwerk, Mr. Lighty, do you have any rebuttal to 6
anything you've heard?
7 MR. LIGHTY: Thank you, Your Honor.
8 Again, I would just note that this assertion that 9
inadvertently disclosed information is forever public 10 is simply contrary to law. I know that Ms. Curran 11 takes the position that information that was disclosed 12 as part of a FOIA response somehow demonstrates that 13 it was not an inadvertent disclosure is simply 14 unsupported by the case law.
15 There are plenty of cases in which 16 documents have been disclosed as part of a FOIA 17 request, but the inadvertency was clear because the 18 agency had attempted to withhold certain information, 19 and it was simply an administrative error that the 20 information got released to the public. And although 21 we really can't go into it here in this public 22 session, I think that there is more than adequate 23 evidence to demonstrate that that may be the case 24 here.
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178 But again, I'm not even sure that that's 1
an area that the board needs to resolve here, as it is 2
the agency's determination as to what information is 3
SUNSI, and that appears to have been delegated to the 4
staff. So other than that, I think we would stand on 5
our earlier arguments.
6 JUDGE BOLLWERK: All right. Ms. Woods?
7 MS. WOODS: Thank you, Your Honor. Just 8
a few points I would like to make, is that I think we 9
can all agree here that the purpose of today's 10 proceeding is to ensure the protection of members of 11 the public. And to do that, this type of information 12 has been considered as sensitive information in order 13 to protect critical infrastructure.
14 And so in order to protect the people that 15 live near the plant, or any plant, we need to protect 16 CEII in this proceeding. And to be clear as well, the 17 CEII -- the information disclosures which the 18 petitioners are referring to predated the creation of 19 CEII, which was done in 2015, as well as the NRC's MOU 20 with FERC, which was executed in 2018.
21 And so, again, I just want to iterate that 22 the purpose here is really to protect the information 23 in order to ensure the efficacy of the processes that 24 are in this proceeding. Thank you.
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179 JUDGE BOLLWERK: All right, this is Judge 1
Bollwerk, let me then start with some questions. Ms.
2 Woods, do you agree that this was an inadvertent 3
disclosure in terms of the FOIA material?
4 MS. WOODS: In terms of that, I think I'd 5
like to take a step back and maybe walk through the 6
chronology of that. There was a previous FOIA request 7
that was done as I understand it, that was done in pre 8
2015. The NRC's executed MOU with FERC was not done 9
until 2018. And so the NRC staff is following its 10 current procedure in order to protect CEII under its 11 statutory obligation as agreed upon within the MOU 12 with FERC.
13 JUDGE BOLLWERK: Well, I guess that raises 14 a question, one of the ones we framed in the order, 15 which is can you give us some sense of why all of a 16 sudden this is taking place now?
17 MS. WOODS: Of course, Your Honor. So as 18 a result, again, I know I just walked through it, but 19 again, the information that is at issue is a FOIA that 20 predated the execution of an MOU with FERC, which was 21 in 2018. The NRC received subsequently around the 22 2022 time frame a freedom of information request. As 23 part of the NRC staff's review of information 24 pertaining to that FOIA request, one of the documents 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
180 at issue was made non-public in January of 2023.
1 JUDGE BOLLWERK: So that was 2023, now all 2
of a sudden in 2024 we have other concerns, which are 3
-- I mean one of the problems from the board's 4
perspective is that we have no idea what the scope of 5
this is. Obviously there's a transcript involved, but 6
we don't really know what else is involved. Can you 7
give us any sense about what the scope of this is in 8
any way, or even when you think FERC is going to be 9
finished looking at whatever it's looking at?
10 MS. WOODS: Thank you for the question, 11 Your Honor. So as was noted, within the 2024 initial 12 pre-hearing conference, the board did ask the staff to 13 look over the transcript to check if there was any 14 concerns regarding information. The NRC staff did so, 15 and did identify information that could potentially be 16 considered CEII.
17 As a result, it did expand its scope to 18 look at the current adjudicatory record, as well as 19 the previous adjudicatory record, and identified the 20 same or similar information that was also discussed 21 there. And as a result, the NRC staff is going 22 through its process regarding consultation with FERC.
23 And I do have an update as well, this kind of late 24 breaking news as it were.
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181 FERC will provide an update to the NRC 1
tomorrow morning, so we may have more information 2
regarding the status of our consultation with FERC as 3
early as tomorrow morning.
4 JUDGE BOLLWERK: And did that consultation 5
include the transcript?
6 MS. WOODS: Yes, it did, Your Honor.
7 JUDGE BOLLWERK: Let me go to Ms. Curran 8
-- well, let me ask you a question. Mr. Lighty made 9
reference to the fact that, at least he seemed to 10 suggest that the board would have no authority to, if 11 Ms. Curran raised an objection to something that was 12 made non-public, which is generally the process under 13 a protective order, if that sort of concern is lodged, 14 we have no authority to do that in this instance?
15 MS. WOODS: Thank you, Your Honor. The 16 NRC or the board would not have the authority to de-17 designate information that is identified or designated 18 as CEII by FERC, as it is mandatory to withhold under 19 statutory requirements for that category of 20 information.
21 JUDGE BOLLWERK: And you're saying that 22 that then distinguishes this from other kinds of 23 SUNSI?
24 MS. WOODS: I would argue that is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
182 different than other kinds of SUNSI, as here there is 1
a mandatory withholding requirement under a statutory 2
obligation to do so, and FERC is the designating 3
authority for CEII.
4 JUDGE BOLLWERK: Well, in looking at the 5
MOU, it talks about consultation with the FERC 6
coordinator, and in reading this, I guess I'm a little 7
confused, it sounded to me like in the end, is it 8
FERC's determination, or is it the NRC staff's 9
determination based on what FERC suggests to them?
10 MS. WOODS: That's a great question, Your 11 Honor, I can elaborate or clarify that. So the NRC 12 staff is under an obligation that when it identifies 13 information that could potentially be CEII, it 14 initially identifies that information, at which point 15 it will protect it accordingly during the pendency of 16 consultation with FERC.
17 And at which point FERC will render its 18 determination, or designate that information as CEII 19 if it agrees.
20 JUDGE BOLLWERK: And so you're saying that 21 once FERC makes that determination, the staff has no 22 discretion?
23 MS. WOODS: That's correct, Your Honor.
24 JUDGE BOLLWERK: Ms. Curran, do you want 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
183 to address that point?
1 MS. CURRAN: If that's correct, then it 2
looks like that puts the petitioners in the position 3
of making a FOIA request and or FERC, and dealing with 4
both agencies through that part nine administrative 5
process, or through FERC's administrative process.
6 And separating what the board has to do here from the 7
issue of public disclosure, I think it's just a little 8
complicated.
9 And as I say, a lot depends on whether the 10 board grants us a hearing. I honestly don't think 11 it's complicated, if the board denies a hearing, I 12 don't think there's a whole lot that -- it's not that 13 complicated. What's complicated is if we get a 14 contention or more that's been admitted that involves 15 consideration of this information.
16 And I think it really is going to -- we're 17 going to need to find out what is FERC proposing to 18 withhold, why, on what basis, we're going to have to 19 get a sense of is there information that is not 20 currently in the public record that is going to be 21 relied on. For purposes of this hearing request, 22 we've put all the information in, it's been discussed, 23 the board isn't allowed to rely on extraneous 24 information in this decision, so everybody knows what 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
184 it is.
1 And it's only a matter of if the board 2
issues a redacted decision of us seeking disclosure 3
through FOIA at some point, that's straight forward.
4 If there's a hearing here, I think it's more 5
complicated, and it's probably going to take some time 6
to sort it out, these questions of intentional 7
disclosure versus inadvertent disclosure.
8 Whether this statute trumps the previous 9
disclosures, it's my understanding from Mr. Mitman 10 that CEII has existed since 2001. It relates to the 11 September 11th attacks, that these were -- we all 12 remember that there was a tremendous federal response 13 to the September 11th attacks. And these FOIA 14 disclosures happened after the September 11th attacks, 15 so there was some thought put into that before.
16 We don't know all the details yet because 17 we're still trying to sort through it, we're waiting 18 for FERC's determination, we've had a reversal of 19 course here. We didn't know that the staff was 20 starting to take information off of ADAMS until we got 21 to this point of doing a hearing request, and all of 22 a sudden the 2011 safety evaluation isn't on ADAMS 23 anymore.
24 It's been in the public for a long time, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
185 nobody said anything to us about how well now this is 1
non-public, it just suddenly disappeared from ADAMS.
2 So we're trying to understand what's going on at the 3
NRC here. There's been a real sea change in the 4
treatment of this information, and we do not want to 5
get involved in any kind of procedural situation where 6
we would tie ourselves in knots trying to keep this 7
information from being suppressed.
8 We think it is super important that --
9 this is not the first time in our experience where 10 there was a significant safety problem that the NRC's 11 solution to it was not to address the substance of the 12 problem, but to suppress the information. I have many 13 years of experience with spent fuel pool safety, that 14 was the initial response.
15 And there was a tremendous effort to -- I 16 remember when the National Academy of Sciences did 17 their study, there was an effort to suppress that 18 study, ultimately it was released in redacted form.
19 But getting that information out in the public eye was 20 so important, because that's how you get change. If 21 no one knows there's a problem, then it's very 22 unlikely to be addressed.
23 JUDGE BOLLWERK: Let me go back to Ms.
24 Woods for a couple questions. In terms of FERC's 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
186 response tomorrow, are you expecting them simply to 1
tell you some information may have CEII in it, or 2
you're expecting them to tell you this information 3
definitely has CEII in it, and here is what it is?
4 MS. WOODS: I'd have to wait to find out 5
from FERC until tomorrow morning to know exactly what 6
the nature of the update will be.
7 JUDGE BOLLWERK: Okay, let's assume, right 8
now the only thing that we know is non-public is the 9
transcript, and if FERC comes back to you and says you 10 need to take the following items out of the 11 transcript, does that then relieve the need for us to 12 put any protective order in place because you're 13 simply going to redact that and put it out?
14 MS. WOODS: It does not, Your Honor. At 15 this point, as we indicated before, there is 16 information that needs to be protected at this point.
17 We've identified information, again, that we are 18 consulting with on FERC, regarding its designation of 19 CEII. And so even collaterally to this proceeding, 20 and for transparency, the NRC staff has initiated an 21 information review regarding this type of information.
22 And so that is being done outside of the scope of this 23 proceeding as well.
24 JUDGE BOLLWERK: So if we ask you for a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
187 status report on whatever FERC tells you tomorrow, are 1
you going to be able to provide that for us, or is 2
that going to run back into non-public information?
3 MS. WOODS: We would certainly be able to 4
provide an update to the board on a public setting.
5 But should it require information that would need to 6
be retained non-publicly, the EIE does offer the 7
ability to provide a non-public submission, and the 8
NRC staff could certainly provide a non-public 9
submission should that be necessary in order to (audio 10 interference).
11 JUDGE BOLLWERK: Again, we don't have a 12 protective order in place, at least not right this 13 second. Ms. Curran, you want to say something?
14 MS. CURRAN: Yes, please. I just don't 15 see, if the issue is what information in this 16 proceeding should be non-public, all of the 17 information that we rely on is public information, 18 it's in our pleadings, it's in the oral argument 19 transcript. I don't see why a closed proceeding is 20 needed for the staff to identify information that 21 ought to be redacted.
22 And if there is other documents that we 23 didn't rely on that are out there in the public 24 record, in ADAMS, then I don't think that's something 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
188 that the staff needs to bring up to the board. That's 1
something that the staff needs to engage the public 2
within another setting. But we still don't see the 3
need for any kind of protective order right now based 4
on the information that is in this adjudicatory 5
record.
6 JUDGE BOLLWERK: Ms. Woods, besides the 7
pre-hearing conference transcript, can you tell us of 8
any of the other information that's currently in the 9
docket in terms of the filings that are being 10 considered by FERC?
11 MS. WOODS: At this point given that we 12 are in a public setting, I am hesitant to identify any 13 specific documents that are on the docket, as we are 14 in a public conference. However, I would just like to 15 take a step back, and note that this is a FERC call, 16 in terms of the information that needs to be 17 designated as CEII.
18 The NRC staff again has just initially 19 identified information as being CEII, and is 20 consulting accordingly for designation of that 21 information.
22 JUDGE BOLLWERK: How long would it take 23 you to be able to provide the board with a status 24 report on what FERC tells you tomorrow?
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
189 MS. WOODS: I'm hesitant to speculate, but 1
I would say within a day or so, depending on the 2
nature of the update tomorrow.
3 JUDGE BOLLWERK: So tomorrow is Wednesday, 4
certainly by Friday then?
5 MS. WOODS: Yes, Your Honor, I think 6
Friday would be reasonable for an update regarding 7
FERC's determination, or the information or update.
8 JUDGE BOLLWERK: All right, Ms. Curran, 9
I'm sorry?
10 MS. WOODS: And looking at sooner, 11 obviously, if possible.
12 JUDGE BOLLWERK: I'm sorry, I spoke over 13 you, can you repeat that?
14 MS. WOODS: My apologies, Your Honor, we 15 would certainly strive to update the board sooner, but 16 we think Friday would be reasonable as well.
17 JUDGE BOLLWERK: Sorry, Ms. Curran, you 18 had your hand up?
19 MS. CURRAN: Yeah, I just would like to 20 respond to the question of whether it's sensitive 21 information, what documents FERC is reviewing to see 22 whether information should be redacted. With relation 23 to this particular proceeding, there's a very limited 24 number of documents, we all know what information is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
190 in these documents.
1 I just -- we do not think that that is the 2
kind of information that is super sensitive. If we 3
make a FOIA request, the NRC, and we ask for a 4
document that has redacted information, the document's 5
redacted. It's just a pretty standard approach. I 6
don't see -- none of us sees why this is confidential 7
information, and I would ask the staff to report on 8
what documents is FERC reviewing.
9 And that way we know if they don't ask for 10 redactions from some document or other, that we have 11 no concerns.
12 JUDGE BOLLWERK: Ms. Woods, do you want to 13 respond to that?
14 MS. WOODS: Again, this determination is 15 FERC's in terms of the designation of CEII, and again, 16 in respect to the board's order that was issued on 17 July 25th as well, that this public conference remain 18 public, again, the NRC staff is not at liberty to be 19 able to provide those specific document references in 20 a public setting.
21 JUDGE BOLLWERK: So if I'm hearing you 22 correctly, notwithstanding whatever status information 23 you give us on Friday, we probably need to have 24 another conference, which would be non-public, within 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
191 the next week or so, potentially.
1 MS. WOODS: There is a potential, should 2
Your Honors agree, as the NRC staff was supported and 3
joined by Duke Energy to issue a protective order in 4
this matter, there is the ability of the board to 5
issue a protective order to ensure that the 6
information that is potentially at issue as being CEII 7
is protected accordingly.
8 JUDGE BOLLWERK: Let me go to a couple --
9 let me just stop here. Judge Abreu, did you have any 10 questions about what we've been speaking about? No?
11 Judge Miller?
12 JUDGE MILLER: I do.
13 JUDGE BOLLWERK: Go ahead.
14 JUDGE MILLER: Thank you. My questions 15 are for NRC staff counsel. I guess I'll start with 16 what you just mentioned, and work our way back. So if 17 we can't discuss the specific titles, and numbers of 18 the documents that are being reviewed by FERC, and 19 potentially contain CEII, then how can we, as a board, 20 appropriately give guidance and boundary conditions to 21 all the parties with respect to all the SUNSI 22 documents associated with this proceeding? How do we 23 know what that envelops?
24 MS. WOODS: Thank you, Your Honor, for 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
192 that question. So we do have the ability, we can 1
update the board through a non-public filing, and 2
provide a better boundary, if you will, on that 3
information. And again, I would like to also just 4
maybe take a broader step back in terms of what the 5
purposes of this proceeding are. And they are to 6
discuss contention admissibility regarding the draft 7
environmental impact statement associated with the 8
Oconee subsequent license renewal.
9 JUDGE MILLER: Yes, well I understand 10 that, but to Ms. Curran's point, if we're here to 11 discuss the contention admissibility of Oconee, and 12 we're talking now about these documents which may or 13 may not become applicable, then doesn't it then state 14 that we would need to know what that list is in order 15 for us to appropriately give guidance to everyone for 16 the remainder of this hearing for as long as it 17 exists?
18 MS. WOODS: Again, here, this isn't an 19 evidentiary hearing as it were, in terms of any sort 20 of broader scope of documentary evidentiary searches.
21 And again, it is possible for the board to make this 22 a non-public proceeding. And again, I would just say 23 we can update the board through a non-public filing.
24 JUDGE MILLER: Mr. Lighty, I think I saw 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
193 your hand up.
1 MR. LIGHTY: Yes, thank you, Your Honor.
2 I was just going to offer a thought here. I know two 3
of the board's questions were about process, and how 4
we move forward from here, and we would suggest that 5
the logical first step is to issue a protective order 6
to allow the sharing of exactly the type of 7
information you're asking about.
8 So the parties could share that 9
information among themselves, and with the board. And 10 then once that information is shared, then the board 11 could potentially append that information to the 12 protective order that specifically defines what is 13 being protected here. In other words, the specific 14 documents, and the specific information within those 15 documents that is potentially non-public.
16 And that would be non-public attachment, 17 for example, to the protective order itself. But that 18 information can't be shared among the parties until 19 there is a protective order. But I would, to go back 20 to what staff was mentioning, I think counsel was 21 suggesting an in camera submission, so only between 22 the staff and the board, and that's one option.
23 But to allow that information to be shared 24 among the parties, I don't see how you do that without 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
194 a protective order, because the existence and 1
definition of the non-public information itself is 2
non-public information.
3 JUDGE MILLER: Okay.
4 JUDGE BOLLWERK: So, Mr. Lighty, I heard 5
you use the word in camera, I heard Ms. Woods use the 6
word non-public, which isn't exactly the same thing.
7 In camera means only the board gets it, non-public 8
means that in theory other participants in the 9
proceeding would see it, it just can't be made 10 available on the public record. Let me turn back to 11 Ms. Woods, and see what you were contemplating.
12 MS. WOODS: At this point I would agree 13 with Duke Energy's counsel, in that if there's not a 14 protective order in place, the information would be, 15 by default, a non-public filing that would be in 16 camera with the board, and only those that have the 17 appropriate access would have access to that non-18 public filing without the protective order being put 19 in place.
20 JUDGE BOLLWERK: Ms. Curran, do you want 21 to comment on that?
22 MS. CURRAN: Yes, please. Well, we would 23 object strenuously to either the concept of a 24 protective order, or in camera review for a report on 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
195 what documents FERC is reviewing to see if there is 1
protected information in them. Documents in this 2
proceeding, we're not talking about documents outside 3
of this proceeding.
4 There is a very limited number, it's 5
pretty obvious what they are, and we really want to 6
avoid this penumbra of secrecy that the staff is 7
seeking to throw over this proceeding. So we ask if 8
the staff is going to propose this, we would ask for 9
a formal opportunity to object before you accept that.
10 And if you do accept it, I guess we will be forced to 11 FOIA everything in this proceeding to get it out into 12 the light of day.
13 But I hope that the board can make a 14 preliminary determination that it isn't necessary to 15
-- that it's secret, what document you're reviewing to 16 see if it contains proprietary information when 17 there's only a handful of documents that's been even 18 filed in this proceeding, it's to us, absurd.
19 JUDGE MILLER: I think that's all the 20 questions that I have.
21 JUDGE BOLLWERK: Okay. So, Ms. Woods, 22 just so I make sure that I understand clearly what 23 you're talking about, if there were a protective order 24 in place, and you were to -- relative to any list of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
196 documents, with that protective order in place, that 1
could be shared with Ms. Curran as well, that list?
2 MS. WOODS: That is correct, Your Honor, 3
as the NRC staff indicated in its opening statement.
4 The intent of the protective order is just that, to 5
protect the information in this proceeding. And in 6
order to allow an open discussion of it amongst the 7
participants, the protective order is necessary, in 8
this case, in order to ensure the protection of the 9
information.
10 And
- again, the determination of 11 information here is FERC's. The NRC staff is 12 consulting with information initially identified as 13 potentially being CEII, and I think we can all agree, 14 again, that we want to be able to protect the 15 information in order to be able to protect public 16 health and safety, and that is the purpose of this 17 proceeding here.
18 And so in order to do that, and share 19 amongst the participants, the protective order is 20 necessary, as well as the non-disclosure agreements, 21 and the other supporting declarations there. Thank 22 you.
23 JUDGE BOLLWERK: Ms. Curran?
24 MS. CURRAN: Ms. Woods just used the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
197 phrase open discussion of information, and we'd just 1
like to point out that we've had the open discussion 2
in the oral argument. As far as we know, this is it 3
for us. We have submitted -- in terms of we're waiting 4
for a ruling from the board on the admissibility of 5
our contentions.
6 We filed our petition for a hearing, we 7
had oppositions, we replied, we had an oral argument, 8
under the rules that's what we get. What possible use 9
would an open discussion of this redacted information 10 have, or this withheld information have if it's 11 completely in FERC's discretion to withhold it as the 12 staff is saying?
13 What purpose is served from us talking 14 about it? It's just some words that are going to be 15 removed from some documents, and the words are already 16 on the paper. It's not going to add anything to have 17 a discussion of those words, except to gag the 18 petitioners who aren't allowed to, once we sign a 19 protective order, then everything that comes up there 20 is because we signed a protective order, for that 21 reason alone, we can't discuss it.
22 So we've got that problem now, in addition 23 to the fact that we have to FOIA everything now. It's 24 too much of a burden on the petitioners for no 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
198 apparent purpose.
1 JUDGE BOLLWERK: Well, one thing from the 2
board's perspective I would point out, until we know 3
what information is non-public, we don't know what our 4
decision, in issuing a decision, what has to be 5
public, and what has to be non-public. Yes.
6 MS. CURRAN: Judge Bollwerk, I think 7
you're going to get that determination from FERC, in 8
the sense that they're going to hand you back the 9
pleadings, and the transcript from this proceeding 10 with redactions, and say these are the words you can't 11 discuss publicly. And it would be good -- we want to 12 know what is the basis for saying that.
13 But there's a limited universe of words 14 that are already on paper that FERC, I would assume, 15 has the capability of saying these words have to be 16 removed from the public record, and they do that by 17 crossing them out, and blotting them out so they can't 18 be seen.
19 JUDGE BOLLWERK: So am I hearing you say 20 that we simply shouldn't do anything, and let the 21 staff redact all the documents for whatever FERC puts 22 into them, and move from there, that you don't want to 23 be part of that process?
24 MS. CURRAN: From what the staff is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
199 saying, no group other than FERC has the authority to 1
do this. You don't have any authority, the staff 2
doesn't have any authority, we're all waiting on FERC 3
to tell us what are the rules with respect to these 4
pleadings, and the oral argument transcript, this 5
small universe of documents.
6 And if that's correct, then none of us has 7
the ability to do much, except that the petitioners 8
can file a FOIA request with either NRC, or FERC, 9
we'll have to figure out where it goes.
10 JUDGE BOLLWERK: Ms. Woods, do you want to 11 respond to that, in terms of that possible process?
12 MS. WOODS: The staff has made this 13 initial identification, and FERC has the 14 responsibility for protecting energy and the grid, and 15 we respect that. This is a statutory obligation that 16 the agency is under in order to protect this 17 information. And again, as I think we've discussed 18 here several times, the purposes of the protective 19 order would allow the continued access of the 20 participants to be able to litigate within the scope 21 of this proceeding.
22 JUDGE BOLLWERK: Ms. Curran, anything you 23 want to say?
24 MS. CURRAN: I would just like to point 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
200 out Ms. Woods referred to the staff's initial 1
determination, and I think that's what we have gotten 2
a proposed -- I think it was in the July 17th -- well, 3
I guess it was circulated to the other parties, there 4
was a proposed redacted transcript with the staff's 5
proposed redactions.
6 We think it's premature for the board to 7
rule on redactions proposed by the staff, just because 8
as Ms. Woods has said today, FERC is the ultimate 9
arbiter of what should be redacted, and therefore the 10 staff doesn't really know what the scope of the 11 redactions ought to be. They could shoot for what 12 they think is appropriate, and find out that it wasn't 13 broad enough, or it was too broad.
14 I don't think that you have a lot of 15 choice under the circumstances except to wait for 16 FERC.
17 JUDGE BOLLWERK: Ms. Woods, based on your 18 experience, do you expect FERC to come back eventually 19 and redact these documents actually?
20 MS. WOODS: I wouldn't speculate on FERC's 21 outcome, however the staff does have experience with 22 this information, and has made an initial 23 identification of information that it believes is 24 CEII. And so that is a potential. And while this 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
201 proposal has obviously not been consulted with among 1
the parties, we could potentially file proposed 2
redactions on a non-public docket if there are 3
concerns, if it's expanded, or reduced.
4 That is a potential option. But one thing 5
I would also like to point out is that if FERC does 6
come back, and disagrees, and says no, this is not 7
CEII, the NRC staff will certainly release the 8
information. It's going through its process, and is 9
consulting accordingly, and is trying to protect the 10 information according to our statutory obligation.
11 And again, protective orders are not an 12 unusual thing. In terms of proceedings, this type of 13 process has been used in previous proceedings, there's 14 been several, for example, like in TVA Clinch River 15 for an early site permit, protective orders have been 16 put in place. Thank you.
17 JUDGE BOLLWERK: Yes, Ms. Curran?
18 MS. CURRAN: I think Ms. Woods said the 19 staff could file proposed redactions. If we don't 20 know why FERC is proposing to redact the information, 21 we can't really comment on proposed redactions. And 22 in fact it seems reasonable to assume, given that the 23 statute in question was passed shortly after the 24 September 11th attacks, it's reasonable to presume 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
202 that when the NRC initially disclosed these documents, 1
or this information to the public, they must have 2
consulted FERC.
3 It would be strange to me if they hadn't 4
consulted FERC about it first. But even if they 5
hadn't, they had some reasoned basis for disclosing 6
it, and now FERC is going to come along and say no, 7
there's a different -- even though this statute has 8
been around for a while, we're now going to take it 9
off the record for some other reason.
10 It's reasonable for us to ask what's 11 FERC's reasoning here. Without knowing that, how can 12 we take a position on proposed redactions? So it's 13 not really a legitimate negotiation.
14 JUDGE BOLLWERK: All right, thank you.
15 Judge Abreu, anything you want to ask in this regard?
16 No? Judge Miller?
17 JUDGE MILLER: Not in regard to what we 18 were just discussing.
19 JUDGE BOLLWERK: All right. Let me move 20 for a second to the provisions of the proposed 21 protective order. I would note actually that the 22 order, that the proposed protective order provided by 23 the staff and Duke appears to be based on an October 24 10th, 2021 protective order entered by the Commission 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
203 in a licensed transfer case involving a number of 1
Exelon Generation Company, LLC, facilities.
2 The ADAMS accession number for that 3
document is ML21280A362. The protective order in that 4
case was intended to govern non-public SUNSI 5
information potentially associated with the submission 6
of hearing petitions challenging the proposed license 7
transfer. Which the Commission has subsequently 8
denied in CLI-22-01, which is 95 NRC 1.
9 And so in asking these questions I'm sort 10 of doing it in that context. This order being based 11 obviously on a template, I have a couple questions 12 about how it would apply in this particular instance.
13 So paragraph 7A of the proposed protective order 14 regarding document marking indicates that documents 15 containing SUNSI shall be marked contains protected 16 information subject to protective order.
17 Some documents in this proceeding that 18 were previously marked with designations, and again, 19 I don't know what's involved here, so I can't say 20 whether these are or aren't
- involved, have 21 designations such as official use only, security 22 related information that were later released pursuant 23 to the Freedom of Information Act, and the markings 24 were lined out.
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204 How would marking of those types of 1
documents be handled? In other words when there was 2
an initial designation, it was OUO, then that was 3
marked out, what are we going to do now, assuming 4
that's information we need to deal with?
5 MS. WOODS: As I understand it, the 6
protective order outlines the standard handling 7
procedures for SUNSI. And so if there's information, 8
I think it's just to ensure that there's an 9
identification of the information that is in 10 possession of the individuals, that it is protected 11 information. As the purposes of the protective order 12 are just that, to protect the information.
13 JUDGE BOLLWERK: So you would remark the 14 document then with a new designation?
15 MS. WOODS: My apologies, Your Honor, I 16 misunderstood your question. In terms of any 17 information, should we receive a determination from 18 FERC that it is CEII, the NRC staff would comply with 19 whatever those marking procedures are in that case, 20 and designate it accordingly.
21 JUDGE BOLLWERK: Okay, and that gets to my 22 next question, which is who does the marking? Are you 23 saying anything the staff identifies, or anything the 24 staff identified to FERC, that FERC then says needs to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
205 be CEII, the staff would then do the marking?
1 MS. WOODS: I understand that the staff 2
would. In terms of the actual technical process of 3
how that goes about, I don't have that information on 4
me. In terms of the actual implementing on who does 5
the what markings, and how that goes about from an 6
internal procedure.
7 JUDGE BOLLWERK: Right, so for instance, 8
I'm just speculating, if the document originated from 9
Duke, the staff would be the one to mark it, because 10 they're the one that identified it as CEII?
11 MS.
WOODS:
That would be my 12 understanding, is that the agency would need to go 13 through whatever its internal processes are for the 14 proper marking of documents that have been identified 15 as containing such information, consistent with 16 whatever those procedures are. Again, I apologize, I 17 just don't have that information on me.
18 JUDGE BOLLWERK: All right. Mr. Lighty, 19 would that be consistent with what you think would 20 happen?
21 MR. LIGHTY: Yes, I would suspect that 22 FERC may provide some specific redactions, or 23 acknowledge or affirm that the information has been 24 flagged by the staff. But I certainly would assume 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
206 that the information would have to contain the 1
appropriate designations. In other words, just 2
because a document was previously public, then once 3
the new designation has been confirmed, there would be 4
requirements to mark it as such.
5 The way I would see it playing out in this 6
proceeding is that once the protective order is 7
issued, then the list of documents, and potentially 8
even specific pieces of information within those 9
documents is shared among the parties, that would 10 include both a redacted version, and potentially a 11 secondary version of the document where the 12 information is simply outlined, but still visible.
13 And that's what could be shared among the 14 parties, and the board, so that you could see exactly 15 what information is non-public, to then facilitate, 16 for example, the issuance of a board order either that 17 doesn't contain any non-public information, or any 18 potentially non-public information, or allow the board 19 to redact its decision according to that format if 20 that was necessary.
21 JUDGE BOLLWERK: And on a related line, 22 Ms. Woods, do you anticipate that there are going to 23 be redacted versions of all these documents that FERC 24 designates as CEII put onto the public record at some 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
207 point?
1 MS. WOODS: That would be correct. At 2
this point any information would be made non-public 3
while the pendency of that determination is being 4
reached, at which time the redacted versions would be 5
release accordingly, and made publicly available. And 6
again, I would just like to not that the purposes of 7
the protective order is really to balance the 8
petitioner's ability to challenge the applicable 9
information at issue here with the federal 10 government's requirements, and need to protect 11 sensitive information, and protect the public.
12 JUDGE BOLLWERK: Yes, Ms. Curran?
13 MS. CURRAN: Again, we're going back to 14 the fact that there's a handful of documents that we 15 know of that potentially contain SUNSI. Our hearing 16 request, our reply, oral argument transcript. We 17 would be willing to consider a protective order that 18 said that those documents, to the extent that we use 19 them for any purpose beyond what we're doing now, and 20 I guess that would -- the only thing I can think of is 21 for right now, it would be we're waiting for the 22 board's decision.
23 So we'd say that the board's decision 24 would be subject to a protective order with the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
208 anticipation that it would be redacted, and put on the 1
public record with redactions. And we would agree to 2
a protective order to look at the board's decision so 3
that we could appeal it, or do a motion for 4
reconsideration.
5 And we would agree that we would file --
6 we'd file our appeal, or motion for reconsideration on 7
the confidential docket. But to have an open ended 8
protective order, and have wide ranging discussion of 9
whatever the staff is saying is SUNSI, that suddenly 10 puts -- that sounds to us more like a gag order. That 11 if information comes up in one of these discussions, 12 or anything where it's far ranging, we're really not 13 willing to do that.
14 We're not willing to basically tie 15 ourselves up in terms of what we are able to access 16 from the public record and discuss it.
17 JUDGE BOLLWERK: All right. I should say, 18 I think that the board is interested in a protective 19 order that covers the information it needs to, and 20 nothing more. We're not trying to regulate what's 21 CEII within this agency. We're simply interested in 22 what relates to this proceeding.
23 MS. CURRAN: Thank you, Judge Bollwerk.
24 And I just -- we really appreciate that, we don't 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
209 think the way the protective order is written, that 1
it's as narrow as it needs to be.
2 JUDGE BOLLWERK: All right. Do any of the 3
other two parties have an objection to a protective 4
order that's specific to this proceeding? That raises 5
some definitional questions I understand, but go 6
ahead, Mr. Lighty.
7 MR. LIGHTY: Thank you, Your Honor, that's 8
exactly what I was about to say. I think even trying 9
to limit the scope, it certainly wouldn't just be 10 pleadings, it would be source documents, cross 11 reference materials, and so defining the scope of 12 that, I think is something that would require some 13 further discussion. But again, that's the type of 14 discussion that we could have if we had a protective 15 order that just allowed the sharing of the list of 16 potentially non-public information.
17 And then allowed the board to then 18 supplement the protective order with a specific list 19 of documents and information that are subject to the 20 proceeding.
21 JUDGE BOLLWERK: All right, Ms. Woods, 22 anything you want to say about that?
23 MS. WOODS: Your Honor, again, the intent 24 is to be able to protect the information at issue.
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210 And I would also just like to note that the 1
petitioner's reply did also contain an entire list of 2
ML numbers that was also provided on this public 3
docket, and so that will need to be considered as 4
well.
5 JUDGE BOLLWERK: I'm sorry, let's see, is 6
that -- you're talking about -- I understand now, the 7
list that was attached to the back, group I is how 8
it's labeled?
9 MS. WOODS: Yes, Your Honor. The one that 10 was just submitted yesterday in the petitioner's 11 response to the July 25th board order.
12 JUDGE BOLLWERK: Right, and again, I'm 13 sorry, explain to me your concern about that list?
14 MS. WOODS: There's a list of ML numbers, 15 and that information will need to be looked at by the 16 NRC staff as well.
17 JUDGE BOLLWERK: All right. Let me ask 18 you, what would the staff do with the list?
19 MS. WOODS: The NRC staff would need to 20 review it, and also potentially consult with FERC on 21 it as well.
22 JUDGE BOLLWERK: So all of a sudden every 23 document on that list is subject to review?
24 MS. WOODS: That is correct, Your Honor.
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211 The NRC staff would need to, in light of the issues 1
that have arose within the scope of this proceeding, 2
the NRC staff would need to review those ML numbers to 3
reach a potential initial identification, and if 4
needed, would need to consult with FERC on it as well.
5 JUDGE BOLLWERK: Ms. Curran, anything you 6
want to say about that?
7 MS. CURRAN: I'd like to see it in 8
writing, what the staff is proposing here. We're 9
concerned that this information is still on the public 10 record, if this is of such concern to the staff, what 11 is -- it sometimes seems as though the petitioners in 12 this case are being used as kind of a fulcrum here, 13 that there is two groups that are really interested in 14 this safety issue.
15 So instead of the staff taking some kind 16 of systematic approach to what are we going to do 17 about we have some new perspective on the safety of 18 Oconee that requires us to remove information from the 19 record, what we're going to do is just muzzle the two 20 groups that have an interest in this. And we don't --
21 we're really reluctant to be a party to that.
22 We want to participate in this proceeding, 23 if the board believes that in order to make a decision 24 it has to use some of this information, we're willing 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
212 to work with the board. What we're not willing to do 1
is to agree not to discuss a whole universe of 2
information that is still out there on ADAMS publicly 3
available to anyone, and the only people who would be 4
restricted from using it is the petitioners.
5 MS. WOODS: Your Honor, if I may?
6 JUDGE BOLLWERK: Yes.
7 MS. WOODS: Thank you so much, I 8
appreciate that. I'm not sure I entirely follow the 9
petitioner's argument in this case. In that the 10 issuance of the protective order and agreement to the 11 protective order would allow the petitioners continued 12 access to the limited scope of information that is at 13 issue in order to continue to litigate contention 14 admissibility within the scope of this proceeding.
15 What it would restrict is any further 16 public dissemination of the information that has been 17 initially identified by the staff as being CEII, and 18 is being consulted with on FERC. It would still be 19 able to be discussed within the scope of this 20 proceeding. And again, I would just like to note that 21 for transparency, as the staff mentioned again, along 22 with the information review that is part of this 23 proceeding, the NRC staff has initiated a reasonable 24 search and review of the NRC's ADAMS files as well.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
213 And is taking that under consideration as 1
part of its processes, and is looking into that 2
further outside the scope of this proceeding.
3 JUDGE BOLLWERK: And if I understand Ms.
4 Curran's concern, she's identified a lot of documents 5
that are publicly available that relate to Oconee 6
potentially, and all of a sudden that gets thrown into 7
the hopper, is that correct, Ms. Curran?
8 MS. CURRAN: Yes, it's almost like this 9
proceeding is going to be a funnel for all the 10 relevant information that's out there on ADAMS now 11 will, for our purposes, the two groups, Beyond Nuclear 12 and the Sierra Club, will all get funneled through 13 this proceeding, and we'll be muzzled from discussing 14 it as Ms. Woods just said, we won't be able to talk 15 about it anymore.
16 If it goes through this proceeding, if it 17 can be identified as somehow we gave an ML number, and 18 a document, and it just seems to us that for purposes 19 of this proceeding, FERC can look at the pleadings 20 that have been filed and say the petitioners have 21 used, stated something that we think should not be 22 public.
23 It's some non-public information is in the 24 transcript, here's our reasons for saying it should 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
214 not be public. And then the board's decision may have 1
to be reviewed for should not be public. But it 2
should not be that this proceeding is used as a tool 3
to silence us on a whole array of documents that are 4
currently posted on ADAMS, and are generally available 5
to the public.
6 MS. WOODS: Your Honor, may I?
7 JUDGE BOLLWERK: Yes, please.
8 MS. WOODS: So just to clarify a little 9
bit, and again, just to reiterate, issuance and 10 agreement to the protective order and non-disclosure 11 agreements is not a muzzle. It still allows the 12 petitioner to fully litigate the information at issue 13 within the scope of this proceeding. Again, it just 14 restricts the further dissemination of potential CEII 15 to other individuals who are not associated with this 16 proceeding.
17 And for clarity, and to get to the 18 petitioner's point, the NRC staff is now aware, and on 19 notice of a potential spill. And so the actions the 20 NRC staff are taking are consistent with its process 21 to try to address such a potential spill.
22 JUDGE BOLLWERK: Yes, Ms. Curran?
23 MS. CURRAN: Could I ask what is meant by 24 potential spill?
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215 JUDGE BOLLWERK:
- Yes, I
mean my 1
understanding is someone in the staff believes that 2
what could be non-public information has become 3
publicly available, is that your understanding, Ms.
4 Woods?
5 MS. WOODS: That's correct, Your Honor.
6 MS. CURRAN: This is information that's 7
never been on the public record that has now been 8
disclosed, is that what you're saying, Ms. Woods?
9 JUDGE BOLLWERK: I believe a spill -- this 10 is Judge Bollwerk, I believe a spill would only deal 11 with something that should be non-public that has 12 become public.
13 MS. WOODS: That's correct, Your Honor.
14 JUDGE BOLLWERK: Does that answer your 15 question, Ms. Curran, or am I confusing you more?
16 MS. CURRAN: It doesn't, because we see 17 the staff taking information that was public, and 18 saying that now it's non-public. And I'm trying to 19 get a distinction between is this information that was 20 never public, or is this part of the body of 21 information that the staff is now withdrawing from the 22 public record, and saying for new reasons is non-23 public?
24 JUDGE BOLLWERK: Ms. Woods, do you want to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
216 respond?
1 MS. WOODS: Thank you, Your Honor. So to 2
be clear, the MOU with FERC was entered into in 2018.
3 So the threat landscape can change as time progresses, 4
and so at this point the NRC staff has made an initial 5
identification that information is potentially CEII, 6
and is following its process to consult with FERC.
7 And again, to ensure the protection of 8
public health and safety, and members of the public, 9
this is also to protect the information that is 10 potentially sensitive in this case. And so the staff 11 is following its process regarding coordination with 12 FERC on that information.
13 JUDGE BOLLWERK: Yes, Ms. Curran? I think 14 we need to move on then.
15 MS. CURRAN: I just didn't hear an answer 16 to the question, that's all.
17 JUDGE BOLLWERK: Okay, what didn't you 18 hear?
19 MS. CURRAN: Well, I didn't hear was this 20 information that allegedly has been spilled on the 21 public record prior to recent actions by the staff.
22 JUDGE BOLLWERK: I mean, I'll let Ms.
23 Woods comment, but it strikes me, my understanding of 24 a spill is it's only spilled when it gets onto the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
217 public record, so it had to have been made public 1
somehow, and that's considered a spill.
2 MS. CURRAN: But Judge Bollwerk, you 3
understand that what's happening here is that 4
information that's been on the public record for 10 or 5
15 years is now being taken off the public record.
6 JUDGE BOLLWERK: That's correct, it's been 7
reclassified.
8 MS. CURRAN: It's been reclassified. So 9
if something -- and all of this information, every 10 single thing that is in our pleadings is still on 11 ADAMS. So I just want to make that clear. You can 12 find every single piece of information that we cited 13 in our pleadings on ADAMS. It may not be in the 14 particular document that we cited, but it's still 15 there.
16 JUDGE BOLLWERK: Okay, thank you, I 17 appreciate the clarification. Let me go back and just 18 explore a couple other things about the provisions, or 19 the protective order potentially. Paragraphs eight 20 and nine of the proposed protective order set out a 21 number of specific requirements associated with 22 storing and using CEI by, potentially petitioners.
23 In the recent past, board approved 24 protective orders have had less prescriptive language 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
218 in this regard. For instance, in the 2022 Palisades 1
license transfer proceeding, in an unpublished 2
December 2nd, 2022 order at page three, found at ADAMS 3
accession number ML22356A153, the board declared 4
counsel shall take all reasonable precautions 5
necessary to assure the proprietary documents and the 6
information contained therein were not distributed to 7
unauthorized persons.
8 Counsel are responsible for ensuring that 9
persons under their supervision or control comply with 10 this protective order. And there is similar language 11 in a Seabrook license amendment proceeding order, 12 unpublished decision January 19th, 2018, at four found 13 at ADAMS accession number ML18019A148 that basically 14 says the parties shall securely maintain all protected 15 information.
16 And shall not provide the protected 17 information to anyone not authorized to receive it 18 pursuant to this order. Why isn't language like that 19 appropriate here, as opposed to the somewhat 20 prescriptive, anyway, language that's included in 21 paragraphs eight and nine?
22 MS. WOODS: Thank you, Your Honor. My 23 understanding is that this is the standard SUNSI 24 handling procedures that are available to ensure the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
219 protection of SUNSI.
1 JUDGE BOLLWERK: And in this case, we do 2
have counsel that is responsible for protecting the 3
information, is that correct?
4 MS. WOODS: I'm sorry, I didn't follow 5
your question, Your Honor.
6 JUDGE BOLLWERK: I'm sorry. In this case 7
we would have counsel for the petitioners who would be 8
responsible for protecting the information, and making 9
sure it's not disclosed, is that inappropriate here?
10 MS. WOODS: Your question broke up at the 11 end, I apologize, Your Honor.
12 JUDGE BOLLWERK: I'm sorry, is it 13 inappropriate for us simply to indicate that counsel 14 is responsible for making sure that the information is 15 not disclosed?
16 MS. WOODS: As I understand this is --
17 (Simultaneous speaking.)
18 MS. WOODS: As I understand this is the 19 standard SUNSI handling procedures, so.
20 JUDGE BOLLWERK: Okay, Ms. Curran?
21 MS. CURRAN: In a really broad protective 22 order, if we're talking about information that can be 23 found in public documents that are currently publicly 24 available, we all have these documents in our 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
220 possession. It's like unringing the bell. This 1
information has gone out in the public domain, I have 2
it in various places in my files, I've never tried --
3 it's public information.
4 I've never tried to gather it up and put 5
it in a box, and the representatives of Beyond 6
Nuclear, and the Sierra Club, and Mr. Mitman, same 7
thing, it's been public information. So what this 8
would require us to do is comb through everything that 9
we have for years accumulated, this Oconee process has 10 gone on since 2021 for us.
11 And some of us have been interested in it 12 before then. What are we going to do, we're supposed 13 to go through all our paper files, all our computer 14 files, try to find where this stuff is, and then 15 gather it up and put it in a box? We don't want to 16 agree to something that would be so onerous, and 17 potentially impossible.
18 JUDGE BOLLWERK: Mr. Lighty, go ahead.
19 MR. LIGHTY: Thank you, Your Honor. I did 20 want to provide a little bit more information about 21 some of the more prescriptive terms that are in 22 paragraphs eight and nine as you mentioned. Those 23 actually are born out of the template for a model 24 SUNSI protective order that was developed for ITAC 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
221 hearings.
1 So it's the more -- actually I think it's 2
the most modern template protective order that the NRC 3
has put out. And that's available at accession number 4
ML19036A727. And so I think that's what you're 5
seeing, is the evolution of more modern protective 6
orders. I did also want to comment on a couple of the 7
exchanges that happened here over the last several 8
minutes.
9 It's certainly not unusual for a court to 10 order a clawback of previously available information.
11 It sounds like petitioner's counsel is suggesting 12 that's simply not something that a tribunal should be 13 doing, but it happens all the time. There are cases 14 in which preciously public information gets clawed 15 back from the people who are party to a litigation, 16 and to have that information that's later determined 17 to have been inadvertently produced.
18 And that's potentially what we have here, 19 and the further details of that could come out if we 20 were able to have a non-public conference. And also 21 I want to return to something that the staff mentioned 22 earlier, and really emphasize that, that the objective 23 of the protective order is to prevent disclosure of 24 information to others who do not have a legitimate 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
222 purpose.
1 It's not to restrict the petitioner from 2
accessing, or using the information for a legitimate 3
purpose. The impetus of the statute for protecting 4
this type of information is to protect life safety, 5
right? This is born out of a concern of terrorism, 6
and so why the petitioners think they need to retain 7
this information, and share it freely with others 8
after this proceeding, or to use it after their 9
legitimate purpose for using it, it's just unclear.
10 There's certainly no legitimate basis for 11 them to claim a need to hang onto information that is 12 protected by statute.
13 JUDGE BOLLWERK: Ms. Curran?
14 MS. CURRAN: Just to say that we've gone 15 over this, but I just want to say it one more time.
16 We don't necessarily agree that this information that 17 is sought to be withheld here is protected by statute.
18 These were not inadvertent disclosures. These cases 19 that we cited, two sets of cases in our brief, there 20 is a set about inadvertent disclosures, maybe the 21 information in this FOIA release is mistaken for a 22 matter of weeks and the agency takes it back.
23 But there is a whole other body of cases 24 that talks about this doctrine of acknowledged 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
223 disclosure, that the disclosure was intentional, it 1
was formal. We think this information meets those 2
criteria, those judicially established criteria, and 3
we think the greatest obstacle to safety is secrecy 4
with the NRC.
5 That as long as this information stays in 6
these how many boxes are on this viewing screen here, 7
we don't have a prayer, we really don't. Because this 8
is a big problem, the NRC as an agency has been 9
grappling this for years, and not taking action. We 10 are finally trying to use the hearing process to get 11 some accountability from the agency as a whole.
12 Once this thing goes up to the Commission, 13 or even if we get a contention admitted, once it goes 14 up to the commissioners, it's a politically appointed 15 body, we don't have a lot of confidence that we're 16 going to get relief unless people in the public know 17 and understand what's at stake here. So this isn't a 18 question of, from our perspective, that safety is 19 served by continued secrecy.
20 The secrecy has been going on for years, 21 and the reforms, the safety measures that we're 22 advocating have not been met, they've not been 23 implemented. That's what we're looking for, some 24 accountability for that, and it's got to be public.
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224 MS. WOODS: Your Honor, may I?
1 JUDGE BOLLWERK: Yes, Ms. Woods.
2 MS. WOODS: Thank you, I appreciate that.
3 One item I think I'd like to iterate, and again, I 4
think Mr. Lighty touched on it as well, is that the 5
purpose as an American citizen, and officers of the 6
court, we're responsible for protecting information 7
for the public health and safety, I think we can all 8
agree on that.
9 And to the extent the petitioners are 10 asserting that the only way to challenge or raise 11 safety concerns is by the continued public 12 dissemination of information that has been now 13 identified by the staff as potentially containing 14 CEII, I would just like to note for the board's 15 consideration that there is a provision within the 16 NRC's regulation under 2.206 where an individual can 17 raise ongoing safety concerns before the NRC for 18 consideration.
19 And in this case, again, just taking a 20 step back, the purpose of the proceeding is for 21 contention admissibility on the draft environmental 22 impact statement for the Oconee subsequent license 23 renewal.
24 JUDGE BOLLWERK: All right, thank you.
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225 Mr. Lighty, I want to raise a related question with 1
you about the provisions. The way that the protective 2
order is written, those restrictions in eight and nine 3
are really applicable to petitioners, at least 4
explicitly anyway, wouldn't they also be applicable to 5
Duke to the degree that any of the documents 6
originated by the NRC staff, as opposed to being 7
originated by Duke?
8 MR. LIGHTY: Your Honor, I would disagree 9
with that assertion because what we're talking about 10 here in terms of the framework of the protective order 11 are terms for use in this adjudicatory proceeding, and 12 an assumption that at the end of that proceeding, then 13 the participants are going to destroy or return that 14 information to the NRC staff.
15 The licensee here has an ongoing business 16 need to access this information in perpetuity to 17 comply with its regulatory obligations. And so it's 18 not necessary to prescribe the same type of 19 requirements for the petitioners versus the applicant 20 slash licensee.
21 JUDGE BOLLWERK: But aren't we talking 22 about in the context of this adjudicatory proceeding?
23 I'm not talking about Duke in general, I'm talking 24 about your office, frankly.
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226 MR. LIGHTY: Yes, Your Honor, we certainly 1
think that for the provisions that pertain to 2
authorized holders would apply to all of the parties, 3
and it's only the provisions that pertain to 4
authorized recipients that would be specific to the 5
petitioners.
6 JUDGE BOLLWERK: Correct, and those are 7
all the restrictive provisions.
8 MR. LIGHTY: I guess I look at paragraph 9
nine, and it applies to authorized holders, so that's 10 everyone.
11 JUDGE BOLLWERK: So you're saying only 12 eight applies to the petitioners, but nine applies to 13 both you and to the petitioners?
14 MR. LIGHTY: Correct, and to the staff as 15 well.
16 JUDGE BOLLWERK: And to the staff as well, 17 all right. Let me just bring up again, one point 18 about the protective order. Paragraph 10C of the 19 protective order actually no longer reflects the way 20 in which the e-filing system works for filing non-21 public information. As explained on the welcome page 22 of the e-filing system, the service list for non-23 public filings will have checks for those who have 24 been given protective order file access by SECY.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
227 Consistent with the provisions of any 1
protective order with the option to uncheck the 2
service list box if the filers believe service on a 3
listed person would be improper. This also triggers 4
an email to the individual who is unchecked, that they 5
have not been served with a non-public filing, and 6
provides a reason they have been de-selected, which 7
then allows them to raise an objection to not being 8
served with a non-public submission.
9 In light of the revised processes, which 10 again, is on the welcome page for the e-filing system, 11 should this paragraph be deleted?
12 MR. LIGHTY: Your Honor, I wouldn't 13 necessarily say it needs to be deleted. I don't see 14 it as necessarily in conflict with the changed 15 process. I certainly think that the language could be 16 tweaked to reflect, I guess now it's sort of a 17 negative process where only the individuals that the 18 boxes are checked, and then individuals could be 19 unchecked, but I certainly think that this reflects 20 the notion that authorized holders should be checked, 21 if that makes sense.
22 JUDGE BOLLWERK: Well, they are checked 23 automatically, you have to uncheck them. So it's not 24
-- I mean the process is actually 180 degrees the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
228 other way now, in one sense.
1 MR. LIGHTY: Yes, I think this says, as I 2
read 10C now, it says you shouldn't uncheck anyone 3
that --
4 JUDGE BOLLWERK: All right, we'll look at 5
the provision again in light of the welcome page.
6 Just a question for the staff, what is the penalty for 7
publicly disclosing NRC held information designated as 8
CEII?
9 MS. WOODS: Actually I don't have that 10 information available in terms of penalties.
11 JUDGE BOLLWERK: Is it administrative, is 12 it criminal, is it civil, you have no idea?
13 MS. WOODS: I'm not sure of the scope of 14 the potential penalties, Your Honor.
15 JUDGE BOLLWERK: Do you know if the 16 penalty would include the disclosure of information 17 that's been identified as potential CEII that's 18 undergoing FERC review?
19 MS. WOODS: I apologize, Your Honor, I 20 didn't quite catch your question.
21 JUDGE BOLLWERK: So the question is the 22 information that has been going under -- whatever 23 information has been undergoing FERC review, but has 24 not yet been designated by FERC is CEII. If someone 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
229 discloses that, are they subject to some kind of a 1
penalty?
2 MS. WOODS: At this point it is an initial 3
identification. I think out of respect for the 4
information, the NRC staff is protecting it 5
accordingly according to its statutory obligations.
6 But again, should FERC determine that it is not CEII, 7
that information would be made publicly available.
8 JUDGE BOLLWERK: So it sounds like you're 9
not sure, as you weren't about what the penalty is if 10 it is CEII.
11 MS. WOODS: I would say again, as American 12 citizens and officers of the court, we would strive to 13 potentially, but I do have -- if I may consult just 14 very quickly, Your Honor. Apologies, Your Honor, 15 that's all I have, thank you.
16 JUDGE BOLLWERK: All right. Judge Abreu, 17 do you have any questions? Yes, go ahead.
18 JUDGE ABREU: I just have one topic I 19 wanted to clarify with Ms. Curran. I just want to see 20 if I'm understanding what you're trying to tell us, 21 which is basically you'd kind of rather ride the wave 22 of whatever is public is public, and what's non-23 public, where things are redacted, for example, you'd 24 just live with that for now, not necessarily wanting 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
230 access to the non-public items, so that you don't 1
obligate yourself to all of the requirements of the 2
protective order, if you can avoid it, is that sort of 3
what you're telling us?
4 Because since you don't really know where 5
the proceeding is going at this point, it's simpler 6
for you to just wait it out until there's a real need 7
for you to access things under the protective order.
8 MS. CURRAN: I think that's right, and I 9
just want to emphasize the word access. We already 10 have access to --
11 JUDGE ABREU: I understand, yes.
12 MS. CURRAN: This information, so we do 13 not want to enter the fiction that we need access, we 14 have it. And we don't want to agree to all the things 15 that we have to do, as if -- these other cases, I was 16 involved in Seabrook, it was a safety case, it 17 involved proprietary information. I would assume 18 license transfer cases involve proprietary information 19 that's been off the public record since it was 20 created.
21 That is not the case here in a really big 22 way. I think Ms. Woods said at the beginning, this is 23 unique, and we just -- we think that the uniqueness of 24 this case needs to be recognized, and the long history 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
231 of the public trying to shed light on what is 1
happening at Oconee, what has happened since this 2
plant was built, and the government, and to consider 3
that flooding, a dam breach of the Jocassee Dam was 4
not credible. It all starts back there, and then --
5 MS. WOODS: Your Honor, if I may interject 6
here? If information that may be potentially 7
considered non-public, and the petitioner would like 8
to continue down that line of information, consistent 9
with the board's July 2025 order that the proceeding 10 either be made non-public, or disclosure of such 11 information not be discussed within the scope of this 12 public proceeding.
13 MS. CURRAN: Well, I will stop there. And 14 say that what I just said, if that is now non-public 15 information, it's somewhat frightening. But at any 16 rate, yes, it's that word access. We don't want to 17 pretend that we don't have access to this information, 18 and then agree to pretty draconian measures to keep us 19 from doing anything with it indefinitely. And it 20 wouldn't be just for this proceeding, it would be 21 indefinite.
22 JUDGE ABREU: So my thinking was right now 23 we have a transcript that has some restrictions on it, 24 and then the next major step is an order from the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
232 board, which may or may not have things in it that 1
might require redaction, depending on what it talks 2
about. And at this point, you'd rather live with 3
getting an order that might have some redactions than 4
to have to sign a protective order that might limit 5
what you do with things you already have that you 6
legitimately have at this point.
7 MS. CURRAN: That's correct.
8 JUDGE ABREU: Okay, I just wanted to 9
clarify that that's what I'm hearing you tell us so 10 that we're on the same page. Thank you, Ms. Curran.
11 JUDGE BOLLWERK: Do you have any other 12 questions, Judge Abreu? Yes, Mr. Lighty?
13 MR. LIGHTY: I just wanted to note one 14 distinction. Although the petitioners may have 15 originally obtained some of this information through 16 legitimate means, circumstances have changed. And 17 they are now in possession of what is potentially the 18 fruit of the poisonous tree, and I don't think that we 19 can overlook that simply because it might impose some 20 paperwork burden on the petitioners.
21 If the petitioners wanted to, for example, 22 appeal the decision once it comes in, they would still 23 need to be able to potentially access that 24 information, to rely on it, in order to proceed with 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
233 their case. And no one here is trying to prevent them 1
from doing that. No one is trying to prevent 2
petitioners from using the information for a 3
legitimate purpose, which is this adjudicatory 4
proceeding, and any potential further steps in the 5
process.
6 The purpose of the protective order 7
though, is to acknowledge those changed circumstances, 8
that there has now been an identification of 9
potentially non-public information that the 10 petitioners may be in possession of. And the 11 objective of the protective order is to allow them to 12 continue to use that throughout this process for a 13 legitimate purpose.
14 But to restrict illegitimate use of that 15 information after the conclusion of this proceeding.
16 Because if they're not subject to a protective order, 17 they would be free to share that information after 18 this proceeding with anyone they wanted to, and that 19 is contrary to the objective of the statute to protect 20 that information.
21 Again, it's a matter of life safety 22 information. So I don't think that we can necessarily 23 say simply issuing a redacted version of an order, and 24 call it a day here. Circumstances have changed, and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
234 I think that we need to acknowledge that, and deal 1
with it accordingly through the issuance of a 2
protective order.
3 JUDGE BOLLWERK: But again, Mr. Lighty, 4
one that applies to the information that's relevant to 5
this proceeding, correct?
6 MR. LIGHTY: Correct, Your Honor. And 7
again, I think it would be perfectly reasonable for 8
the parties to have a non-public conference to define 9
the exact scope of that information.
10 JUDGE BOLLWERK: All right, thank you, 11 sir. Ms. Curran?
12 MS. CURRAN: Just one more comment about 13 the importance of public hearings. That is the 14 assumption, I think, of all NRC adjudicatory hearings, 15 is if it is possible to hold them in public, to allow 16 the public to observe what's going on, that is an 17 important part of the process. To educate people, to 18 keep the neighbors, and public officials informed of 19 what is being discussed, what is being decided in 20 these important adjudicatory proceedings, transparency 21 is a very important goal of the NRC.
22 So I would say the presumption is that a 23 proceeding should be in public, our goals are not 24 illegitimate in seeking transparency as a part of this 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
235 hearing process.
1 JUDGE BOLLWERK: All right, thank you.
2 Ms. Woods?
3 MS. WOODS: Your Honor, if I could just 4
take a quick step back, you had asked a question of 5
the NRC staff regarding potential sanctions.
6 JUDGE BOLLWERK: Yes.
7 MS. WOODS: While I don't have that 8
specific information available, there is the Fixing 9
America's Surface Transportation or FAST Act that may 10 be able to provide some additional information, or 11 clarification for Your Honors.
12 JUDGE BOLLWERK: All right, thank you.
13 Judge Abreu, do you have anything further? Judge 14 Miller?
15 JUDGE MILLER: Yes.
16 JUDGE BOLLWERK: Go ahead.
17 JUDGE MILLER: One question. So in the 18 proposed protective order, in the first paragraph it 19 states that the protective order shall govern the 20 access, disclosure, and use of SUNSI in this 21 proceeding, and that the definition of SUNSI as its 22 used in this protective order is the information 23 designated as containing potentially critical energy 24 and electric infrastructure information pending the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
236 final determination by the Federal Energy Regulatory 1
Commission.
2 So my question is, without discussing any 3
specific documents, or any specific ML numbers, or any 4
specific information whatsoever, do the all parties 5
know that list of information?
6 MS. WOODS: Again, we're in the public 7
setting, I'm not really at liberty to go into the 8
detailed description. But the purposes of the 9
protective order is to be able to have those types of 10 discussions, and be able to discuss that information, 11 and the scope of that information amongst all of the 12 participants.
13 Execution of the protective order and non-14 disclosure declarations would allow such a discussion 15 to be able to take place among all of the 16 participants.
17 JUDGE MILLER: Yes, I understand that, Ms.
18 Woods, I appreciate that, and I in no way want to have 19 a discussion about any specifics, or descriptions of 20 anything specific. But just at a very high level, 21 what I'm asking is do we need to have that non-public 22 meeting, hearing, so that everybody does actually know 23 what's inside the boundary lines, and what's outside 24 the boundary lines?
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237 MS. WOODS: At this point the protective 1
order is the vehicle to be able to allow those types 2
of discussions. And as was previously indicated, we 3
have circulated a proposed redacted transcript. And 4
so there is, I
would
- assume, a
reasonable 5
understanding of the information potentially at issue 6
here, as again, a redacted version has been circulated 7
for consultation amongst the participants.
8 JUDGE MILLER: Mr. Lighty, I think I had 9
seen your hand up first.
10 MR. LIGHTY: Yes, and I would agree with 11 what staff mentioned, that I don't think that the 12 precise scope is defined. I don't think we can all 13 say we're all on exactly the same page about which 14 documents, which pages of which documents, which 15 pieces of information within those documents. But 16 that's something that I would envision the board would 17 append as an attachment to the protective order after 18 the initial consultation under the umbrella protective 19 order has been issued, so that we could all be on 20 exactly the same page.
21 JUDGE MILLER: Yes, Ms. Curran?
22 MS. CURRAN: And again, we would say we do 23 not think any kind of confidential or closed 24 discussion is needed to know what documents FERC wants 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
238 to redact, and what kind of redactions. And as a 1
matter of fact, FOIA would basically govern this, or 2
as a guide here. If we wanted to know what FERC was 3
redacting, we would do a FOIA request to FERC, and 4
they'd have to tell us.
5 And if they wouldn't tell us, we'd go to 6
district court, and we'd get a Vaughn Index, and 7
they'd have to list all the documents that they had 8
reviewed, and redacted. It isn't -- that's not secret 9
information, that's information you can get in a FOIA 10 request. So why we have to have some closed 11 discussion of this, we just can't see it.
12 JUDGE BOLLWERK: Ms. Woods, let me go back 13 to you for one second. You mention that you've 14 circulated a proposed redacted transcript. My 15 understanding, unless I misunderstood, you don't yet 16 have FERC's specific designation of what's non-public 17 in the transcript, is that correct?
18 MS. WOODS: That is correct, Your Honor.
19 It was circulated for consideration and transparency 20 in terms of the proposed redactions. But if I could 21 go back and just address something that the 22 petitioners were talking about regarding FOIA. In 23 this case, this is a statutory requirement to protect 24 this information, CEII is a statutory -- it is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
239 obligated that we protect it under statute.
1 And so, again, the designation does rest 2
with FERC in terms of designating the information as 3
CEII, and it is not discretionary on the NRC staff.
4 JUDGE BOLLWERK: Yes, Ms. Curran?
5 MS. CURRAN: If the board would like a 6
briefing on whether CEII, whatever the CEII statute is 7
trumps the requirement of the FOIA to identify what 8
documents are exempt and why, we'd be willing to do 9
that research, and present you with that. It would 10 shock me if that statute would be so broad that FERC 11 never had to say what document was being protected, 12 and why, or what words were being redacted from that.
13 There has got to be some balance between 14 the FOIA and the statute. It can't be just a blanket 15 we don't have to tell you anything, we're just going 16 to take the whole thing off the record, that's what it 17 sounds like.
18 JUDGE BOLLWERK: I'm not sure that's what 19 Ms. Woods was saying. I think what she was saying is 20 simply when FERC designates it, that ends the 21 discussion with the NRC. Now, what other remedies you 22 have to contest that, I would expect the Freedom of 23 Information Act applies to that like it does to other 24 SUNSI information. Or am I wrong, Ms. Woods? Let's 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
240 hear from Ms. Woods first.
1 MS. WOODS: Your Honor, I think what Ms.
2 Curran may be referring to is what occurs after the 3
document is redacted. At this point in time the NRC 4
staff finds itself in a spill situation, at this 5
moment, and the NRC staff is following its processes, 6
and taking the action it has deemed necessary to 7
protect information potentially identified as 8
containing CEII.
9 And is following its consultation purposes 10 with FERC in order to ensure the protection of the 11 information.
12 JUDGE BOLLWERK: I take it you weren't 13 saying that once that's designated, the it can't be 14 contested with an FOIA request for instance?
15 MS. WOODS: My intent was not to indicate 16 any limitation upon once the document is redacted.
17 Again, at this point we are in a spill situation, and 18 trying to protect the information as best as possible.
19 And I would like to, if I may, just consult one 20 second, Your Honor.
21 JUDGE BOLLWERK: All right.
22 MS. WOODS: Thank you. So at this point 23 it sounds like the NRC staff would have an objection 24 to the petitioners wanting to continue to spill 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
241 potential information, to the extent that is what is 1
occurring. And again, I would also note that as the 2
staff noted in its opening, that once the information 3
is reviewed, and we receive that determination from 4
FERC, a redacted version of the documents would be 5
made publicly available with those redactions in 6
place.
7 The intent is that, as I mentioned, these 8
documents would be placed temporarily non-publicly 9
while that redaction and consultation process is 10 ongoing, and once that is complete the staff would 11 redact accordingly, and provide a publicly available 12 version that is redacted.
13 JUDGE BOLLWERK: All right, thank you.
14 Yes, Ms. Curran, and then we're going to wrap this up.
15 MS. CURRAN: It now appears that the 16 petitioners are being accused of spilling information 17 that's protected under the CEII. That's what I think 18 I heard Ms. Woods say, something about our continuing 19 to spill information, and we would like to know what 20 exactly we are being accused of. Because we are being 21
-- we think we are being extremely careful to use 22 publicly available information.
23 To our knowledge we have never disclosed 24 anything that is not on the public record, so we would 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
242 like to know what exactly we are being accused of by 1
the NRC staff, and if this is an effort to get us to 2
agree to a protective order to find out why, we object 3
to that. And when I was talking about the FOIA being 4
relevant here, I meant the board can take guidance 5
from the FOIA in terms of whether to hold a closed 6
meeting about this.
7 That is not necessary, because ultimately 8
FERC is going to have to publicly identify the 9
documents that it wants to redact, and the redactions, 10 and why they're being redacted. No confidential 11 discussion is necessary for that.
12 JUDGE BOLLWERK: All right, thank you.
13 Judge Abreu, anything further?
14 JUDGE ABREU: No, nothing here.
15 JUDGE BOLLWERK: Judge Miller?
16 JUDGE MILLER: No.
17 JUDGE BOLLWERK: Nothing? All right. I 18 want to mention one other matter, and I do this with 19 a great deal of trepidation, but I'm going to do it 20 anyway. And I should say that I'm doing this as sort 21 of a generic matter, although what's triggered my 22 discussion is something we saw in Ms. Woods' 23 pleadings.
24 And I'll preface this by saying that I had 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
243 the opportunity for a number of years to work with 1
Judge Rosenthal, who some of you may know, a really 2
distinguished juris, a distinguished layer, a really 3
fine person. And his approach was one, when it came 4
to dealing with this NRC staff, that he wanted the 5
staff to cut square corners, that was very important 6
to him.
7 And he minced no words when he thought 8
that that had not happened. I think from the panel's 9
perspective, and I'm speaking for a number of the 10 judges here, not just myself, we are seeing some 11 instances where it appears that some of the 12 representations in the staff pleadings are not what 13 they should be in terms of being precise.
14 To call the motion that was filed, I think 15 a joint motion, I understand there were two parties, 16 but obviously that was not what the board was looking 17 for. And to find out in the last sentence basically 18 of the consultation certification that in fact Ms.
19 Curran did not agree to the motion was kind of burying 20 the lead.
21 So I'm really hoping that Ms. Woods, you 22 can take that to your colleagues, the panel finds it 23 extremely important that we can count on you all to 24 give us the straight scoop on what's going on, to cut 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
244 those square corners. And again, I apologize if 1
you're offended by this, I'm very reluctant to do 2
this, and I'm not Judge Rosenthal.
3 I think from the panel's perspective, it's 4
gotten to the point where something needs to be said.
5 So, please, think about that, take that back to your 6
colleagues. Look at what you're filling with the 7
board, we want to be able to depend on you that when 8
you tell us something, that's the out and out straight 9
facts, and I think we're seeing some pleadings 10 recently that don't necessarily reflect that.
11 So, please, I'm not trying to offend you 12 personally, this is more of a thing that we're trying 13 to express to the General Counsel's Office generally.
14 Please cut those square corners, it's not easy, I 15 understand you're a litigator, but you're also a 16 litigator for the government, and it's important that 17 you take that perspective.
18 And I will say I will now climb down off 19 my soapbox, which I very reluctantly got on, I do not 20 like doing this sort of thing. But I think that it 21 was something that needed to be said at this point, 22 because there's a lot of important things comes in up 23 in the near future, and the panel needs to be able to 24 depend on the NRC staff, and on the General Counsel's 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
245 Office to make sure those square corners are being 1
cut.
2 So with that, we will conclude this pre-3 hearing conference regarding the entry of a protective 4
order in this proceeding. Given that this is a 5
somewhat short notice affair, we very much appreciate 6
the obvious efforts of all the participant's counsel 7
to provide the board with their positions on the 8
pending motion for entry of a protective order, and 9
the information they provided in response to the 10 board's questions.
11 Before adjourning, I also want to take a 12 moment to thank those on the licensing board panel, 13 who have made it possible for us to conduct this 14 argument. We are, as always, indebted to Andy Welkie, 15 and Joe Deucher, the panel's information technology 16 staff for ensuring the flawless operation of the IT 17 infrastructure associated with this conference.
18 The same is true regarding our 19 administrative assistant Sara Culler, who has rendered 20 invaluable assistance on short notice in issuing 21 various announcements and orders that provide the 22 participants and members of the public with 23 information about this conference. Our thanks as well 24 to our court reporter, whom we hope counsel will 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
246 assist us after we adjourn with any questions that she 1
might have about names, terms, or other clarifying 2
details regarding anything that was discussed during 3
today's conference.
4 And let me just say then, we will look 5
forward to something from the staff on Friday, 6
hopefully by Friday about what FERC says, and we will 7
move forward from there. We'll let you know what the 8
next step in the process is. And with that, we stand 9
adjourned. Thank you.
10 (Whereupon, the above-entitled matter went 11 off the record at 4:39 p.m.)
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