ML24242A273
| ML24242A273 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 08/29/2024 |
| From: | Curran D Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57092, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2 | |
| Download: ML24242A273 (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 29, 2024 Units 1, 2 & 3 )
MOTION BY BEYOND NUCLEAR AND THE SIERRA CLUB FOR CLARIFICATION AND/OR RECONSIDERATION OF PROTECTIVE ORDERS
As provided by the Atomic Safety and Licensing Boards (ASLBs) Memorandum and
Order (Regarding Nondisclosure Declaration Filings, Reconsideration/Clarification Motions,
Nonpublic Document Redaction, and Marking Nonpublic Documents) (Aug. 26, 2024)
(08/26/24 Memorandum and Order), Petitioners Beyond Nuclear, Inc. and the Sierra Club, Inc.
hereby seek clarification and/or reconsideration of certain aspects of the 08/26/24 Memorandum and Order and other orders issued by the ASLB in this proceeding on August 19, 2024. 1 Those
aspects relate to Petitioners obligations as participants, i.e., non-signers of the nondisclosure
declarations.
- 1. Paragraph 9 of the Specific SUNSI Protective Order requires that Persons, i.e., Petitioners,
may not reveal identified CEII or Board-Designated information during any public hearing or conference session. 2 As non-signers of the nondisclosure declaration, Petitioners do not
know what documents have been identified as CEII or Board-Designated information,
1 Memorandum and Order (Granting Motion to Enter Protective Order) (Aug. 19, 2024) (Board Order Regarding Specific SUNSI); Memorandum and Order (Protective Order Regarding Ex Parte/Separation of Functions Communications) (Aug. 19, 2024) (Protective Order Regarding Ex Parte Protective/Separation of Functions Communications); and Memorandum and Order (Protective Order Governing Specific Sensitive Unclassified Non-Safeguards Information) (Aug.
19, 2024) (Specific SUNSI Protective Order).
2 Specific SUNSI Protective Order at 5.
because that identifying information is in non-public Appendix 1. 3 Petitioners seek the
ASLBs guidance regarding how they can comply with this requirement given their lack of
knowledge regarding the contents of Appendix 1. In the alternative, they seek the elimination
of this requirement on the ground that it could potentially penalize the Petitioners for conduct
they have no way of knowing would violate the Protective Order.
- 2. Similarly, paragraph 10 of the Specific SUNSI Protective Order imposes obligations on
Petitioners with respect to information that has not been identified to them. Under paragraph
10, a participant, i.e., a Petitioner, must notify the ASLB if the participant:
has reason to believe the Identified CEII or Board-Designated Information may have been lost or misplaced, or that Identified CEII or Board-Designated Information may have been lost or misplaced, or that Identified CEII or Board-Designated Information has otherwise become available to unauthorized persons. 4
Petitioners do not have a means of knowing the identity of CEII or Board-Designated
Information and therefore seek the ASLBs guidance on how they can comply with this
requirement. In the alternative, they seek the elimination of this requirement on the ground
that it could potentially penalize the Petitioners for conduct they have no way of knowing
would violate the Protective Order.
- 3. Paragraph 11 of the Specific SUNSI Protective Order establishes a process for contesting the designation of information as Identified CEII or Board-Designated Information. 5 Petitioners
note that it is not clear when, if ever, they will learn what information the Board has designed
as Identified CEII or Board-Designated Information. After documents have been redacted, it
may be possible to deduce their status under the Protective Order, but that process seems
3 Board Order Regarding Specific SUNSI at 5.
4 Specific SUNSI Protective Order at 5.
5 Specific SUNSI Protective Order at 6.
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likely to be very imperfect. Therefore, the procedure appears to have limited utility and
places the Petitioners at peril of inadvertently disclosing protected information.
Petitioners are also aware that the NRC Staff is in the process of removing some formerly
publicly available documents relevant to this proceeding from the NRCs public Agencywide
Document Access and Management System (ADAMS). The scope of information that the
NRC Staff is now removing from public ADAMS includes documents that -- while relevant to this proceeding -- may never be submitted on the docket of this proceeding. 6 And of
course, Petitioners will not be able to determine which documents withdrawn by the Staff
from public ADAMS are also placed in the nonpublic Appendix 1 in this proceeding.
Petitioners wish to inform the ASLB that they intend to pursue their legal right under the
Freedom of Information Act (FOIA) to seek public disclosure of this information by using the NRCs procedures in 10 C.F.R. Part 9 and potential federal court litigation. 7 In that
respect, Petitioners request a modification to paragraph 18 of the Specific SUNSI Protective
Order to state: Nothing in this Protective order shall preclude any person from seeking
public disclosure of any information protected by this Protective Order by lawful means
other than or in addition to the procedures set forth in this Protective Order, including
discovery in other proceedings, administrative requests for public disclosure to NRC and
other federal agencies, and federal litigation.
6 For instance, the NRC Staff has removed from ADAMS Petitioners comments on the Draft License Renewal GEIS. Comments by Beyond Nuclear and the Sierra Club on Proposed Rule and Draft Generic Environmental Impact Statement for Renewing Nuclear Power Plant Licenses (May 2, 2023; corrected May 19, 2023) (formerly posted on public ADAMS at ML23139A275).
7 Petitioners note that their purposes in seeking public disclosure of this information extend beyond their participation in this proceeding to their ability to discuss significant safety and environmental issues with other members of the public in other settings.
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- 4. On August 27, 2024, Duke Energy Carolinas, LLC (Duke) submitted a Motion for
Clarification of Protective Orders (Duke Motion). Duke makes two observations that apply
to Petitioners as well: that (a) it already possesses most or all of the information that will be
subject to the Protective Order (referred by Duke as Covered Information) and (b) that it
has other legitimate uses for the information. In the case of Duke, the use is related to the
operation of its business and compliance with NRC regulatory requirements. The Petitioners
also have legitimate uses of this public information outside of the hearing. In the case of
Petitioners, the use is dissemination and discussion of significant safety and environmental
issues with state and local government officials and interested members of the public.
Duke has requested the ASLB to clarify:
whether the prohibitions of the Protective Orders (prohibiting use and reproduction of Covered Information for non-adjudicatory purposes) should be read to permit otherwise lawful non-adjudicatory use and reproduction; and whether the exceptions in Paragraph 19 of the [Special SUNSI Protective Order] and Paragraph 16 of the [Protective Order Regarding Ex Parte/Separation of Functions Communications] should be read to deem otherwise lawful uses of independently-acquired Covered information both inside and outside the adjudicatory proceeding to be non-violative of the Protective Orders. 8
Petitioners respectfully request that any clarification provided by the ASLB also address the
similarity of Petitioners circumstances.
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 29, 2024
8 Duke Motion at 6.
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CERTIFICATE OF COUNSEL PURSUANT TO 10 C.F.R. § 2.323(b)
I certify that on August 28, 2024, I consulted counsel for Duke and the NRC Staff in a sincere effort to resolve the issues raised in this motion. Counsel for Duke stated that Duke takes no position on the motion.
Counsel for the NRC Staff stated that the NRC Staff does not oppose the Petitioners request for clarification on the issues the motion identifies; however, the NRC Staff does not support Petitioners request that the Licensing Board reconsider portions of the protective order. The Staff reserves the right to respond, as provided in the Licensing Boards Memorandum and Order (Regarding Nondisclosure Declaration Filings, Reconsideration/Clarification Motions, Nonpublic Document Redaction, and Marking Nonpublic Documents), dated August 26, 2024.
__/signed electronically by/___
Diane Curran
CERTIFICATE OF SERVICE
I certify that on August 29, 2024, I posted on the NRCs Electronic Information Exchange MOTION BY BEYOND NUCLEAR AND THE SIERRA CLUB FOR CLARIFICATION AND/OR RECONSIDERATION OF PROTECTIVE ORDERS.
___/signed electronically by/__
Diane Curran
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