ML24232A225

Memorandum and Order (Protective Order Regarding Ex Parte_Separation of Functions Communications)

ML24232A225
Person / Time
Site:	Oconee
Issue date:	08/19/2024
From:	Bollwerk G Atomic Safety and Licensing Board Panel
To:	Beyond Nuclear, Duke Energy Carolinas, NRC/OGC, Sierra Club
SECY RAS
References
RAS 57078, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2, ASLBP 24-985-03-SLR-BD01
Download: ML24232A225 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

ATOMIC SAFETY AND LICENSING BOARD

Before Administrative Judges:

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

In the Matter of Docket Nos. 50 -269-SLR-2, 50-270-SLR-2, and 50-287-SLR-2 DUKE ENERGY CAROLINAS, LLC ASLBP No. 24-985-03-SLR-BD01 (Oconee Nuclear Station, Units 1, 2, and 3)

August 19, 2024

MEMORANDUM AND ORDER (Protective Order Regarding Ex Parte/Separation of Functions Communications)

1. This Protective Order shall govern access to and disclosure of Sensitive Unclassified

Non-Safeguards Information (SUNSI) in four e-mails, dated July 29 and 30, 2024, and

August 3 and 14, 2024, referred to herein as the Specified E-Mails, that were

provided to the Atomic Safety and Licensing Board (Licensing Board) and are being

placed into the docket of this proceeding consistent with 10 C.F.R.

§§ 2.347(c), 2.348(c). The SUNSI that is subject to this Protective Order is Specified

E-Mails SUNSI, which is any information in the Specified E-Mails that (a) is pending, or

has received, a final designation by the Federal Energy Regulatory Commission as

Critical Energy/Electric Infrastructure Information (CEII); 1 or (b) constitutes Privacy

Act/Personally Identifiable Information (PII) or any other type of SUNSI. This Protective

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

Order, which shall remain in effect until specifically amended or terminated by the

Licensing Board (or the Commission), does not apply to any information in the

Specified E-Mails subsequently determined by the Nuclear Regulatory Commission

(NRC) not to constitute SUNSI so as not to warrant being withheld from public

disclosure.

2. Authorized Holders of the Specified E-Mails and Specified E-Mails SUNSI pursuant to

this Protective Order include:

a. The following persons associated with petitioners Beyond Nuclear, Inc., and the

Sierra Club, Inc., (Petitioners) so long as they have executed a copy of the

Nondisclosure Declaration included as Attachment A to this Order and submitted a

copy of that executed Nondisclosure Declaration as a Public Submission via the

agencys E-Filing system: (1) Diane Curran, (2) Jeffrey Mitman, and (3) Paul

Gunter;

b. Personnel, contractors, and legal counsel of the NRC (including a presiding officer

(e.g., the Commission or a Licensing Board) and their staff, and Commission

adjudicatory employees as defined by 10 C.F.R. § 2.4); and

c. Personnel, contractors, and legal counsel of Duke Energy Carolinas LLC (Duke)

and their Affiliates so long as they have executed a copy of the Nondisclosure

Declaration included as Attachment A to this Order and submitted a copy of that

executed Nondisclosure Declaration as a Public Submission via the agencys

E-Filing system.

3. Other than the requirements set forth in this Protective Order for filing documents and

protecting the Specified E-Mails SUNSI, the terms of this Protective Order do not apply

to personnel, contractors, and legal counsel of the NRC. The NRCs use of the

Specified E-Mails SUNSI is governed by NRC regulations and policies as well as other

applicable laws.

4. Specified E-Mails SUNSI shall not be used or reproduced by the Authorized Holders

specified in paragraphs 2.a and 2.c of this Protective Order except as necessary for the

conduct of this proceeding.

5. Access to Specified E-Mails SUNSI by the Authorized Holders specified in

paragraphs 2.a and 2.c of this Protective Order shall be held in confidence by the

Authorized Holders specified in paragraphs 2.a and 2.c of this Protective Order and

shall not be disclosed by the Authorized Holders specified in paragraphs 2.a and 2.c of

this Protective Order in any form or in any manner to any person except Authorized

Holders. The Authorized Holders specified in paragraphs 2.a and 2.c of this Protective

Order may copy and take notes of the Specified E-Mails SUNSI, but such copies and

notes become SUNSI subject to the terms of this Protective Order. The Authorized

Holders specified in paragraphs 2.a and 2.c of this Protective Order may generate

documents derived from Specified E-Mails SUNSI, but such documents are also

subject to the terms of this Protective Order. The Authorized Holders specified in

paragraphs 2.a and 2.c of this Protective Order shall not reveal, either during or after

this proceeding, any Specified E-Mails SUNSI that is disclosed to the Authorized

Holders specified in paragraphs 2.a and 2.c of this Protective Order.

6. Marking Documents Associated with the Specified E-Mails:

a. The Specified E-Mails and any generated documents containing Specified E-Mails

SUNSI shall be marked CONTAINS PROTECTED INFORMATION - SUBJECT

TO PROTECTIVE ORDER in a conspicuous manner at the top of every page

(including the first page or cover page and transmittal documents) and centered

when feasible. Document marking shall be the responsibility of the Authorized

Holder that initially identifies the document as containing Specified E-Mails SUNSI.

b. Electronic storage media (including, but not limited to, USB sticks, removable hard

drives, CD-ROMs, or DVDs) containing the Specified E-Mails and/or Specified

E-Mails SUNSI subject to this Protective Order shall be marked Specified E-Mails

and/or Specified E-Mails SUNSI.

c. The Authorized Holders specified in paragraphs 2.a and 2.c of this Protective Order

shall treat unmarked Specified E-Mails SUNSI subject to this Protective Order in

accordance with the terms of this Protective Order.

7. Protecting the Specified E-Mails and Specified E-Mails SUNSI: Legal counsel for the

participants to this proceeding (i.e., the NRC St aff, Duke, and Petitioners) shall take all

reasonable precautions necessary to ensure that the Specified E-Mails and Specified

E-Mails SUNSI are securely maintained and securely distributed only to persons

authorized to receive that information under the terms of this Protective Order. Legal

counsel for the participants are responsible for ensuring that persons under their

supervision or control comply with this Protective Order.

8. The Specified E-Mails and any Specified E-Mails SUNSI shall be filed in this

proceeding using the E-Filing system as follows:

a. The person filing the document shall choose the Non-Public Submission option to

prevent the document from being filed in the public docket of the proceeding.

b. In the Submission Comment portion of the Non-Public Submission form, the filer

shall include a statement that the filing contains nonpublic protected information.

c. Under E-Filing system protocols governing Non-Public Submission filings, only the

Licensing Board (or the Commission), NRC Staff legal counsel, the Office of the

Secretary (HearingDocket@nrc.gov), the Office of Commission Appellate

Adjudication (OCAAmail.Resource@nrc.gov), and other Authorized Holders should

be checked as recipients on the electronic service list. Authorized Holders and

others on the electronic service list not affiliated with the NRC should be

deselected by a filer upon a good faith belief that the Authorized Holder or other

on the service list not affiliated with the NRC is not authorized to access the

Identified CEII or Board-Designated Information being submitted.

d. Except as specified in paragraph 10 of this Protective Order, all nonpublic filings

under this Protective Order shall be accompanied by a separate letter or other

submission filed as a Public Submission via the agencys E-Filing system that

briefly identifies the nature of the nonpublic filing without identifying or including

Specified E-Mails SUNSI.

9. Persons may not reveal Specified E-Mails SUNSI during any public hearing or

conference session. Any person who anticipates discussing Specified E-Mails SUNSI

at any hearing or conference shall notify the Licensing Board (or the Commission) and

the other participants at least three (3) business days prior to that hearing or

conference that Specified E-Mails SUNSI may be discussed. During any public hearing

or conference, any person who intends to discuss Specified E-Mails SUNSI shall notify

the Licensing Board (or the Commission) and the participants that such discussion will

contain Specified E-Mails SUNSI prior to the statement being made. Such statements

containing Specified E-Mails SUNSI may be provided only in a nonpublic session as

permitted by the Licensing Board (or the Commission).

10. If a participant has reason to believe that Specified E-Mails SUNSI may have been lost

or misplaced, or that Specified E-Mails SUNSI has otherwise become available to

unauthorized persons, notification shall promptly be made to the Licensing Board (or

the Commission) and legal counsel for the other participants regarding that belief and

the reason for that belief by filing a notification as a Non-Public Submission through

the agencys E-Filing system in accordance with paragraphs 8.a to 8.c of this Protective

Order, but without publicly filing a letter or other submission that would otherwise be

required by paragraph 8.d of this Protective Order.

11. The Licensing Board (or the Commission) may alter or amend this Protective Order, the

Nondisclosure Declaration, or the Terminat ion of Possession Declaration and resolve

disputes regarding the application of their terms. The participants may seek

amendments to this Protective Order, the Nondisclosure Declaration, or the

Termination of Possession Declaration via motion pursuant to 10 C.F.R. § 2.323.

12. The Specified E-Mails and any Specified E-Mails SUNSI shall remain available to the

Authorized Holders specified in paragraphs 2.a and 2.c of this Protective Order until the

Access Termination Date. The Access Termination Date is the earlier of (a) the date of

an order by the Licensing Board (or the Commission) rescinding the right of access

granted by this Protective Order; or (b) the date that an order terminating this

proceeding is no longer subject to judicial review.

13. Within ten (10) calendar days of the Access Termination Date, the Authorized Holders

specified in paragraphs 2.a and 2.c of this Protective Order shall either destroy the

Specified E-Mails and any Specified E-Mails SUNSI or return such materials to the

NRC Staff. Each Authorized Holder specified in paragraphs 2.a and 2.c of this

Protective Order shall take those actions necessary to satisfy this obligation. Within ten

(10) calendar days of the Access Termination Date, the Authorized Holders specified in

paragraphs 2.a and 2.c of this Protective Order shall execute the Termination of

Possession Declaration included as Attachment B to this Protective Order, stating that

the Specified E-Mails and any Specified E-Mails SUNSI within the Authorized Holders

possession or control have been either destroyed or returned as required by this

Protective Order. Within ten (10) calendar days of the Access Termination Date, all

executed Termination of Possession Declarations shall be filed as a Public

Submission via the E-Filing system.

14. Nothing in this Protective Order shall preclude a participant to this proceeding from

objecting to the use of an exhibit, testimony, or a pleading because it contains the

Specified E-Mails or Specified E-Mails SUNSI. The Licensing Board (or the

Commission) may issue additional orders concerning the use of the Specified E-Mails

or Specified E-Mails SUNSI.

15. Nothing in this Protective Order shall preclude any person from seeking through

discovery in any other administrative or judicial proceeding any information protected

by this Protective Order.

16. If Specified E-Mails SUNSI comes into the possession of or is known by any participant

independent of the access provisions of this Protective Order or outside of this

adjudicatory proceeding and such knowledge was acquired without violation of law or

other nondisclosure requirements applicable to that participant, use of that document or

information in this proceeding, without compliance with the terms of this Protective

Order, shall not be a violation of the terms of this Protective Order. If a participant

asserts that disclosure of such information or document violates this Protective Order,

then the participant asserting independent knowledge of the contents of the document

or independent access to such a document shall have the burden of proving that (1)

such information was independently obtained; and (2) was not improperly disclosed in

contravention of any law or other nondisclosure obligation.

17. Any violation of this Protective Order or of any Nondisclosure Declaration executed

hereunder may result in the imposition of sanctions as the Licensing Board (or the

Commission) deems appropriate. 2 Nothing in this Protective Order restricts or waives

the rights of any Authorized Holder to pursue any other legal or equitable remedies that

may be available in the event of actual or anticipated disclosure of Specified E-Mails

SUNSI.

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

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18. To ensure access through the Electronic Hearing Docket to nonpublic filings associat ed

with this Protective Order, the Authorized Holders specified in paragraphs 2.a and 2.c

of this Protective Order must submit executed Nondisclosure Declarations as a Pub lic

Submission via the E-Filing system within three (3) business days after the issuance of

this Protective Order.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

________________________________/RA/

G. Paul Bollwerk, III, Chair ADMINISTRATIVE JUDGE

Rockville, Maryland

August 19, 2024 Attachment A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of Docket Nos. 50 -269-SLR-2, 50-270-SLR-2, and 50 -287-SLR-2 DUKE ENERGY CAROLINAS, LLC ASLBP No. 24-985-03-SLR-BD01

(Oconee Nuclear Station, Units 1, 2, and 3)

NONDISCLOSURE DECLARATION

I,, state:

1. I have read the Licensing Boards Protective Order issued in the above-captioned proceeding and will comply in all respects with its terms and conditions regarding the Sensitive Unclassified Non-Safeguards Information (SUNSI) subject to that Protective Order, specifically the Specified E-Mails and Specified E-Mails SUNSI as defined in that Protective Order. I will protect and keep in confidence the Specified E-Mails and all Specified E-Mail SUNSI in accordance with the terms of the Protective Order and of this Nondisclosure Declaration.

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

3. I will keep, protect, and transmit the Specified E-Mails and Specified E-Mails SUNSI (including, without limitation, transcripts, pleadings, documents that I generate, and any notes and copies that I make containing such information) in accordance with the terms of the Protective Order.

4. I will mark each document containing Specified E-Mails SUNSI in accordance with the terms of the Protective Order.

5. Neither during nor after this proceeding, will I publicly reveal the Specified E-Mails or any Specified E-Mails SUNSI that I receive by virtue of this proceeding as long as the

information remains Specified E-Mails SUNSI.

6. I acknowledge that any violation of the terms of this declaration or the Licensing Boards Protective Order, which incorporates the terms of this declaration, may result in the imposition of such sanctions on me that the Licensing Board (or the Commission) may deem to be appropriate, or any other legal or equitable remedies that may be available in the event of actual or anticipated disclosure of the Specified E-Mails or Specified E-Mails SUNSI.

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

Signature Date Executed

Address:

Phone Number:

E-mail:

Attachment B UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of Docket Nos. 50 -269-SLR-2, 50-270-SLR-2, and 50 -287-SLR-2 DUKE ENERGY CAROLINAS, LLC ASLBP No. 24-985-03-SLR-BD01

(Oconee Nuclear Station, Units 1, 2, and 3)

TERMINATION OF POSSESSION DECLARATION I,, state:

In accordance with the Licensing Boards Protective Order in the above-captioned proceeding, I have destroyed or returned the Sensitive Unclassified Non-Safeguards Information (SUNSI),

specifically Identified as the Specified E-Mails or Specified E-Mails SUNSI as defined in that Protective Order, that is in my possession by one or more of the following methods (check all that apply):

I have destroyed the Specified E-Mails and/or Specified E-Mails SUNSI in accordance with the Protective Order.

I have returned the Specified E-Mails and/or Specified E-Mails SUNSI t o t h e NRC Staff.

WHEREFORE, I certify under penalty of perjury that the foregoing is true and correct.

Signature Date Executed

Address:

Phone Number:

E-mail:

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

In the Matter of )

)

DUKE ENERGY CAROLINAS, LLC, ) Docket Nos. 50-269 SLR-2

) 50- 270 SLR-2

) 50- 287 SLR-2

)

(Oconee Nuclear Station Units 1, 2, and 3) )

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Protective Order Regarding Ex Parte/Separation of Functions Communications) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the General Counsel Mail Stop: O-16B33 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov David Roth Susan H. Vrahoretis Mary Frances Woods U.S. Nuclear Regulatory Commission Megan Wright Office of the Secretary of the Commission Kevin Bernstein Mail Stop: O-16B33 Caitlin R. Byrd, Paralegal Washington, DC 20555-0001 E-mail: david.roth@nrc.gov E-mail: hearingdocket@nrc.gov susan.vrahoretis@nrc.gov mary.woods@nrc.gov megan.wright@nrc.gov U.S. Nuclear Regulatory Commission kevin.bernstein@nrc.gov Atomic Safety and Licensing Board Panel caitlin.byrd@nrc.gov Mail Stop: T-3F23 Washington, DC 20555-0001 G. Paul Bollwerk, III, Chairman, Counsel for Duke Energy Carolinas, LLC Administrative Judge Morgan, Lewis & Bockius, LLC Dr. Sue H. Abreu, Administrative Judge 1111 Pennsylvania Ave NW Dr. Arielle J. Miller, Administrative Judge Washington, DC 20004 E-mail: Paul.bollwerk@nrc.gov Paul Bessette Sue.abreu@nrc.gov Ryan K. Lighty Arielle.miller@nrc.gov Scott Clausen E-mail: paul.bessette@morganlewis.com ryan.lighty@morganlewis.com scott.clausen@morganlewis.com

Duke Energy Carolinas, LLC (Oconee Nuclear Station Units 1, 2, and 3, Docket Nos. 50-269, 50-270, and 50 -287 SLR-2)

MEMORANDUM AND ORDER (Protective Order Regarding Ex Parte/Separation of Functions Communications)

Duke Energy Corporation Beyond Nuclear Reactor Oversight Project 525 South Tryon Street 7304 Carroll Avenue #182 Charlotte, North Carolina 28202 Takoma Park, MD 20912 Tracey M. Leroy Paul Gunter E-mail: tracey.leroy@duke-energy.com E-mail: paul@beyondnuclear.org

Counsel for Beyond Nuclear and Sierra Club Harmon, Curran, Spielberg, &

Eisenberg, LLP 1725 DeSales Street, N.W.

Suite 500 Washington, DC 20036 Diane Curran E-mail: dcurran@harmoncurran.com

Office of the Secretary of the Commission

Dated at Rockville, Maryland, this 19th day of August 2024.

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