ML24229A198
| ML24229A198 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 08/16/2024 |
| From: | Curran D Beyond Nuclear, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Sierra Club |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57074, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2 | |
| Download: ML24229A198 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the Matter of )
Duke Energy Carolinas, LLC ) Docket Nos. 50-269/270/287 SLR-2 Oconee Nuclear Station, ) August 16, 2024 Units 1, 2 & 3 )
OBJECTION BY BEYOND NUCLEAR AND THE SIERRA CLUB TO NRC STAFF NOTICE OF IN CAMERA FILING
I. INTRODUCTION
Petitioners Beyond Nuclear, Inc. and the Sierra Club, Inc. hereby object to the U.S.
Nuclear Regulatory Commission (NRC or Commission) Staff Notice of August 9, 2024, In Camera Filing Before the Licensing Board (Aug. 9, 2024) (NRC Staff Notice). 1 According to
the single sentence provided by the Notice to describe the contents of the Staffs ex parte
pleading, it consists of an update regarding status of its consultation with the Federal Energy
Regulatory Commission (FERC). On its face, this description does not meet the standard for ex
parte in camera review set forth in the governing regulations and NRC Policy Statement. And it
is inconsistent with the Boards 06/28/24 Memorandum and Order and 08/06/24 Memorandum.
Finally, the Staffs ex parte filing also has a significant potential to prejudice Petitioners right to
a fair hearing. Therefore, Petitioners request the ASLB to reject the ex parte filing and publicly
disclose the contents of the NRC Staffs communication to the Board.
1 Petitioners make this objection pursuant to 10 C.F.R. §§ 2.323, 2.348, and 2.390; the NRCs Statement of Policy: Investigations, Inspections, and Adjudicatory Proceedings, 49 Fed. Reg.
36,032 (Sept. 13, 1984) (Policy Statement); the ASLBs Memorandum and Order (Regarding Status of Initial Prehearing Conference Transcript) (June 28, 2024) (06/28/24 Memorandum and Order); and the ASLBs Memorandum (Status of Proceeding Relative to Potential Nonpublic Information) (Aug. 6, 2024) (08/06/24 Memorandum).
II. FACTUAL AND PROCEDURAL BACKGROUND
This proceeding concerns Petitioners request for a hearing on Duke Energy Carolinas,
L.L.C.s (Dukes) application for NRC approval of a twenty-year subsequent license renewal (SLR) term for the three nuclear reactors comprising the Oconee Nuclear Station. 2 The issues
raised by Petitioners include the NRCs failure to adequately consider accident risks posed by
flooding of the Oconee site due to breach of the upstream Jocassee Dam. On June 24, 2024, the
Licensing Board held a prehearing conference regarding Petitioners standing and the
admissibility of their contentions. During the prehearing conference, counsel for the NRC Staff raised the possibility that information being discussed might need to be treated as nonpublic. 3
The ASLB subsequently placed the transcript in a nonpublic protective order file, requested the
parties to draft a protective order for consideration, and asked the NRC Staff to update it
regarding the status of its review of the transcript and other documents submitted in this proceeding. 4
On July 24, 2024, the Staff and Duke filed a joint motion for a protective order, seeking to
regulate Petitioners conduct with respect to an unknown body of Sensitive Unclassified Non-
Safeguards Information (SUNSI), which the Staff and Duke designated as containing
potentially Critical Energy/Electric Infrastructure Information [CEII], pending final
2 Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club (Apr. 29, 2024, corrected May 1, 2024) (Hearing Request). Petitioners note that the Hearing Request is not publicly available because the NRC Staff has removed it from the NRCs public Agencywide Document Management Access System (ADAMS) and the associated Electronic Hearing Docket.
3 06/28/24 Memorandum and Order at 1.
4 Id. at 2-3.
2
determination by the Federal Energy Regulatory Commission [FERC]. 5 Petitioners responded
that the proposed protective order was not necessary, lawful, or appropriate in light of the
circumstances of this case, including the fact that all of the information potentially subject to the
protective order had been disclosed previously under the Freedom of Information Act (FOIA) and therefore was not subject to lawful withdrawal from the public record. 6 On July 30, 2024,
the ASLB held a second prehearing conference to discuss the motion for a protective order.
On August 2, 2024, the NRC Staff submitted, on the NRCs Electronic Information
Exchange (EIE) for docketing of public pleadings in adjudicatory proceedings, a status report concerning its consultation with FERC. 7 According to the Staff, consultation with FERC was
ongoing and the Staff expected to receive further information from FERC the following week.8
On August 6, 2024, the ASLB issues a Memorandum summarizing the prehearing conference and setting forth next steps. 9 The Board noted the Staffs assertion that it was awaiting a
determination by FERC regarding what information FERC would require to be withdrawn from
the public record as CEII; and that the scope of documents covered by FERCs review had
expanded beyond the June 24 prehearing conference transcript to an unknown set of documents
that the Staff considers relating to this proceeding that merit FERC review as possibly
5 Joint Motion for Proposed Protective Order Governing Disclosure of Sensitive Unclassified Non-Safeguards Information and Non-Disclosure Declaration, Att. 1, [Proposed] Protective Order at 1 (July 24, 2024).
6 Response by Beyond Nuclear and Sierra Club to Joint Motion for Protective Order at 1-2 and 10-11 (July 29, 2024) (Response to Joint Motion).
7 NRC Staffs Status Report Regarding Consultations Concerning the Withholding of Nonpublic Information From Disclosure (Aug. 2, 2024).
8 Id.
9 08/06/24 Memorandum.
3
containing nonpublic information. 10 The Board also noted the Staffs claim that for the Staff to
provide any further information about the potential nonpublic information to the other
participants, including possible document redactions, would require the entry of a protective order covering nonpublic information provided by the Staff to FERC for CEII review. 11
In addition, the Board considered Petitioners argument that:
no protective order was necessary and that the Board should simply await FERCs determinations regarding the presence of nonpublic information in any Staff-referred documents, which would provide the Board and the participants with the information they need to understand the nonpublic information scope relative to the proceeding. 12
With respect to its own role, the Board observed:
The Board has a duty to draft and issue a decision on Petitioners hearing request that, to the maximum degree feasible, is based on information that is part of the public record. At the same time, the Board is faced with the possibility, as-yet largely undefined, of having to incorporate information necessary to ensure its decision sets forth an accurate and adequate explanation of the Boards determinations and reasoning that, because of security concerns, cannot be made part of the public record. At this juncture, trying to fulfill these arguably conflicting responsibilities places the Board in a somewhat challenging situation. 13
Therefore, having secured the transcript of the June 24 prehearing conference, the Board stated
that at this point, it prefers to await the Staffs next status report before making any decision about whether to proceed with a protective order. 14
On August 8, 2024, the Staff submitted via the public EIE a status report stating that FERCs review was ongoing and that a final designation has not yet been determined. 15 The
10 Id. at 3.
11 Id.
12 Id. at 3-4.
13 Id. at 4.
14 Id.
15 NRC Staff August 8, 2024, Status Report Regarding Consultations Concerning the Withholding of Nonpublic Information From Disclosure (Aug. 8, 2024).
4
Staff also stated that it would provide an update upon FERCs determination or on or before August 15, 2024. 16
On August 9, 2024, the Staff submitted, via the public EIE, the Notice of its ex parte
submission to the ASLB, seeking in camera review. The alleged subject of the ex parte
submission was status of its consultation with the Federal Energy Regulatory Commission
(FERC).
III. ARGUMENT
Petitioners objections are as follows:
- 1. The Staffs ex parte filing of a status report is not permitted by any regulation or policy of
which Petitioners are aware. To the contrary, NRC regulations 10 C.F.R. § 2.348 (Separation
of functions) requires, as a general matter, that communications between the NRC Staff
and adjudicatory employees must be public. Further, no ex parte filing was directed or
authorized by the ASLB in either the 06/28/24 Memorandum and Order or the 08/06/24
Memorandum; and indeed, the Board recognized in the 08/06/24 Memorandum its obligation
to proceed cautiously and with as much transparency as possible. Finally, 10 C.F.R. §
2.323(a)(2) requires that motions must be served on all parties. Contrary to 10 C.F.R. §
2.323(b), the NRC Staff did not seek Petitioners consent to be relieved from that duty. Nor
did the Staff cite any legal authority for the extraordinary step of submitting a status update
via an ex parte communication to the Board.
- 2. Pursuant to 10 C.F.R. § 2.390(a), all NRC records must be open to the public unless they involve information that is subject to a specific exception. 17 These exceptions mirror the nine
16 Id.
17 See also Policy Statement, 49 Fed. Reg. at 36,033 (as a general rule [the Commission] favors full disclosure to the board and parties.). The Policy Statement makes an exception to this 5
exemptions under the FOIA. See 5 U.S.C. § 552(b). Thus, the ex parte communication is
subject to the FOIA unless one of the exemptions applies. Under the FOIA, agencies bear the burden to demonstrate the applicability of an exemption. 18 And because of the asymmetrical
distribution of knowledge between the agency and the public, the agency must provide a detailed justification for its claimed exemption. 19 As a general matter, this justification
must be provided in public in order to protect adequate adversary testing of the agencys claimed right to an exemption. 20 The Staff has not done that here. For aught the Staff has
shown, the ex parte communication is rightfully public, and there is no basis for the Staff to
file it ex parte.
The Staff may be operating under the assumption that the ex parte communication
contains exempt CEII. After all, it has now submitted two public updates on the status of its
negotiations with FERC regarding the potential identification of some NRC documents as CEII that is allegedly exempt from disclosure under the FOIA. 21 According to the Staff,
FERC could require removal of these documents from public ADAMS under a FOIA exemption. 22
requirement for only two circumstances: where in camera review of information relevant to a proceeding is needed to avoid compromising an ongoing investigation or inspection or to protect confidential sources. Id.
18 See Reps. Comm. for Freedom of the Press v. Fed. Bureau of Investigation, 3 F.4th 350, 357 (D.C. Cir. 2021) (The burden of proving the applicability of an exemption falls on the agency.).
19 King v. U.S. Dept of Just., 830 F.2d 210, 218 (D.C. Cir. 1987).
20 Id., 830 F.2d at 219 (citing NEU v. U.S. Customs Serv., 802 F.2d 525, 527 (D.C. Cir. 1986)).
21 See notes 7 and 15 above.
22 See 08/06/24 Memorandum and Order at 3.
6
But for two reasons this does not justify the Staffs ex parte communication. First, to
Petitioners knowledge, FERC has not yet designated any particular information as CEII.
Presumably, FERC will provide this information publicly as required by the FOIA. 23 And
unless and until FERC designates the material, it does not qualify as CEII under the statute, and hence is not subject to FOIA Exemption 3. 24 Second, even if FERC did designate some
material as exempt, that would only justify redacting exempt portions, not a completely ex parte submission. 25
- 3. Finally, Petitioners are concerned that the Staffs ex parte communication to the Board may
be prejudicial to the fair conduct of this proceeding. During the July 30 prehearing
conference, counsel for the Staff suggested - without a scintilla of support -- that Petitioners
are responsible for a spill, i.e., the unlawful or otherwise inappropriate disclosure of sensitive information. 26 Throughout this proceeding, Petitioners have consistently cited only
information that is available on the public record through ADAMS. As Petitioners have
stated repeatedly, the information they have cited was lawfully disclosed under FOIA years
23 King, 830 F.2d at 219.
24 See 16 U.S.C. § 824o-1(a)(3) (providing that, to count as CEII, the information must be designated as critical electric infrastructure information by the Commission or the Secretary);
16 U.S.C. § 824o-1(d)(1)(a) (providing only that CEII is exempt under FOIA); 5 U.S.C. § 552(b)(3) (exempting information excluded from disclosure by other statutes). Further, as set forth in Response to Joint Motion at 10-11, Petitioners question whether any information that the NRC previously disclosed under the FOIA may be removed from the public record. And because FERC has yet to state what information it considers to constitute exempt CEII or why, Petitioners are currently unable to evaluate whether the information could qualify as CEII were FERC to designate it as such. Petitioners await FERCs determination in order to assess the issue of whether the information is exempt from disclosure under the FOIA.
25 See Stolt-Nielsen Transp. Grp. Ltd. v. U.S., 534 F.3d 728, 733-34 (D.C. Cir. 2008) (describing agencies segregability duties under FOIA).
26 Transcript of Prehearing Conference (Tr.) at 240-41 (Woods) (So at this point it sounds like the NRC staff would have an objection to the petitioners wanting to continue to spill potential information, to the extent that is what is occurring.) (emphasis added).
7
ago, has been widely distributed to the public, and is also still available on public ADAMS to a significant extent. 27 Indeed, the fact that the NRC Staff is now removing from public
ADAMS entire documents that the Petitioners have cited in this proceeding -- yet has not
removed many other documents containing the very same information -- indicates that the
Staff is more concerned about preventing Petitioners from participating effectively in this
proceeding than about protecting allegedly sensitive information from general public
disclosure.
Petitioners have no way of knowing whether the Staff has reiterated the defamatory,
unsupported and unfair accusation of the July 30 prehearing conference as part of its so-
called status report. But given that the Staff has no lawful reason to make its status report
by an ex parte communication with the Board, Petitioners are reasonably concerned that the
Staff may have used the ex parte communication to impart some improper and prejudicial
innuendo regarding Petitioners conduct in this proceeding.
IV. CONCLUSION
Accordingly, for the foregoing reasons, the ASLB should refuse to accept the NRC
Staffs ex parte communication and provide it to the parties for their review and response.
Respectfully submitted,
__/signed electronically by/___
Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com
August 16, 2024
27 See Transcript of July 30 prehearing conference at 217, 219-20 (Curran).
8
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the Matter of )
Duke Energy Carolinas, LLC ) Docket Nos. 50-269/270/287 SLR-2 Oconee Nuclear Station, )
Units 1, 2 & 3 )
CERTIFICATE OF SERVICE
I certify that on August 16, 2024, I posted on the NRCs Electronic Information Exchange OBJECTION BY BEYOND NUCLEAR AND THE SIERRA CLUB TO NRC STAFF NOTICE OF IN CAMERA FILING.
___/signed electronically by/__
Diane Curran
9
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the Matter of )
Duke Energy Carolinas, LLC ) Docket Nos. 50-269/270/287 SLR-2 Oconee Nuclear Station, )
Units 1, 2 & 3 )
CERTIFICATE OF SERVICE
I certify that on June 7, 2024, I posted on the NRCs Electronic Information Exchange REPLY BY BEYOND NUCLEAR AND THE SIERRA CLUB TO OPPOSITIONS TO THEIR HEARING REQUEST AND PETITION TO INTERVENE.
___/signed electronically by/__
Diane Curran
10