ML24253A239
| ML24253A239 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 09/09/2024 |
| From: | Mary Woods NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57099, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2 | |
| Download: ML24253A239 (0) | |
Text
September 9, 2024
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the Matter of
DUKE ENERGY CAROLINAS, LLC Docket No. 50- 269-SLR-2, 50- 270- SLR-2, (Oconee Nuclear Station, Units 1, 2, and 3 ) 50- 287-SLR-2
NRC STAFF ANSWER TO BEYOND NUCLEAR AND THE SIERRA CLUB S MOTION FOR CLARIFICATION AND/OR RECONSIDERATION OF PROTECTIVE ORDERS
The NRC Staff is providing this answer consistent with the Licensing Boards August 26,
2024, Memorandum and Order. 1 For the reasons identified in the following discussion, the NRC
Staff opposes the Petitioners request that the Licensing Board reconsider portions of the
protective order 2 as described in the Petitioners August 29, 2024, motion for clarification and/or
reconsideration. 3 While the NRC Staff appreciates that the information handling concerns that
have arisen in this proceeding have generated additional considerations, the intent of the
protective order is to ensure that sensitive information in the proceeding is properly protected.
- 1. In Paragraph 1 of the Petitioners August 29, 2024, Motion, Petitioners propose that if the
Licensing Board elects not to clarify a provision of Paragraph 9 of the Protective Order in
1 Memorandum and Order (Regarding Nondisclosure Declaration Filings, Reconsideration/Clarification Motions, Nonpublic Document Redaction, and Marking Nonpublic Documents) (Aug. 26, 2024) (ADAMS accession no. ML24239A824).
2 See, Memorandum and Order (Protective Order Governing Specific Sensitive Unclassified Non-Safeguards Information) ( Aug. 19, 2024) (ML24232A213) (Protective Order A). The NRC Staff notes that on August 19, 2024, the Licensing Board issued two (2) protective orders in this matter. It appears that the Petitioners motion relates to Protective Order A, as identified in the Licensing Boards Memorandum and Order, dated August 26, 2024. Accordingly, when referring to a protective order in this subject filing, the NRC Staff is referring to Protective Ord e r A.
3 Motion by Beyond Nuclear And The Sierra Club For Clarification And/Or Reconsideration Of Protective Orders (Aug. 29, 2024) (ML24242A273) (Petitioners August 29, 2024, Motion).
2
response to Petitioners Motion, the Licensing Board instead eliminates that provision. The
provision of Paragraph 9 to which Petitioners refer states, in part, that [p]ersons may not
reveal Identified CEII [Critical Electric/Energy Infrastructure Information ] or Board-
Designated Information during any public hearing or conference. 4 This provision prohibits
nonpublic information from being discussed in a public setting as part of this proceeding and
also establishes a procedure for how participants could discuss nonpublic information in a
hearing or conference, should that be needed.5 The NRC Staff opposes the Petitioners
request for reconsideration and revision in the motion because removal of this provision
would create an inconsistency with the NRCs policy on discussions involving nonpublic
information 6 and would create uncertainty for the participants about the procedures for
discussing nonpublic information as part of this proceeding. Accordingly, the Licensing
Board should reject the Petitioners proposed reconsideration and revision of Paragraph 9.
- 2. In Paragraph 2 of the Petitioners August 29, 2024, Motion, Petitioners propose that, if the
Licensing Board elects not to clarify a provision of Paragraph 10 of the Protective Order in
response to Petitioners Motion, the Licensing Board instead eliminates that provision. The
provision in Paragraph 10 states, in part, that [i]f a participant has reason to believe 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, to ensure the Licensing Board and legal counsel for the participants
must be notified accordingly. 7 The NRC Staff opposes the Petitioners request for
reconsideration and revision in the motion because removal of this provision would create
an inconsistency in this proceeding with the NRCs policy for handling a situation in which
4 Protective Order A at 5.
5 Protective Order A at 5.
6 See, e.g., NRC Policy for Handling, Marking, and Protecting Sensitive Unclassified Non-Safeguards Information (ML052990146) (NRC SUNSI Policy) at 7 (stating [e]nsure that no discussion takes place that is audible or visible to persons not authorized access to the information.).
7 Protective Order A at 5.
3
Sensitive Unclassified Non-Safeguards Information (SUNSI) may have been compromised
or mishandled (e.g., leaving sensitive unclassified documents or material unattended,
unsecured, or improperly stored), 8 and would eliminate assurance that the Licensing Board
and parties would be notified of any mishandling of nonpublic information. Accordingly, the
Licensing Board should reject the Petitioners proposed reconsideration and revision of
Paragraph 10.
- 3. In Paragraph 3 of the Petitioners August 29, 2024, Motion, the Petitioners request that the
Licensing Board reconsider Paragraph 18 and revise the provision to focus on obtaining
public disclosure of information in this proceeding using various procedures. Paragraph 18 of
the protective order states, [n]othing 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.9 However, this provision of Paragraph 18 provides that
persons are not restricted from seeking use of or access to the information covered under
the protective order as part of a different or any other administrative or judicial
proceeding. 10 Petitioners propose that Paragraph 18 be revised to read as follows:
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.11
Petitioners proposed reconsideration and revision would apply to any person seeking public
disclosure of the information. However, a plain language reading of Paragraph 18 neither
restricts the Petitioners nor any persons ability to exercise any legal rights or use other legal
8 See, e.g., NRC SUNSI Policy at 3-4 (stating [w]henever SUNSI is inadvertently released or disclosed by NRC personnel or contractors, a security incident has occurred. NRC employees and contractors shall report all security incidents immediately following their occurrence).
9 Protective Order A at 9.
10 Protective Order A at 9.
11 Petitioners August 29, 2024, Motion at 3.
4
venues afforded to them by law or statu te regarding public disclosure. Accordingly, the Licensing
Board should reject the Petitioners proposed reconsideration and revision of Paragraph 18.
CONCLUSION
The Petitioners request for reconsideration and revision of Paragraphs 9 and 10 of the
Licensing Boards Protective Order would create inconsistencies in this proceeding with the
NRCs policy for handling a situation in which SUNSI may have been compromised or
mishandled (e.g., leaving sensitive unclassified documents or material unattended, unsecured,
or improperly stored), and would eliminate assurance that the Licensing Board and parties
would be notified of any mishandling of nonpublic information. Further, Paragraph 18 as it
currently reads, neither restricts the Petitioners nor any persons ability to exercise any legal
rights or use other legal venues afforded to them by law or statute regarding public disclosure.
Therefore, the NRC Staff respectfully requests that the Licensing Board deny the Petitioners
request for reconsideration and revisions in the motion.
Respectfully submitted,
/Signed (electronically) by/
Mary Frances Woods Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555- 0001 Telephone: (301) 287 -3514 E-mail: Mary.Woods@nrc.gov
Dated in Rockville, MD this 9th day of September 2024 September 9, 2024
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the Matter of
DUKE ENERGY CAROLINAS, LLC Docket Nos. 50- 269-SLR-2, 50- 270- SLR-2, (Oconee Nuclear Station, Units 1, 2, and 3) 50- 287-SLR-2
Certificate of Service
Pursuant to 10 C.F.R §2.305, I hereby certify that copies of the foregoing NRC STAFF
ANSWER TO BEYOND NUCLEAR AND THE SIERRA CLUBS MOTION FOR CLARIFICATION
AND/OR RECONSIDERATION OF PROTECTIVE ORDERS, dated September 9, 2024, have
been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the
captioned proceeding, this 9th day of September 2024.
/Signed (electronically) by/
Mary Frances Woods Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555- 0001 Telephone: 301 -287-3514 E-mail: Mary.Woods@nrc.gov Dated in Rockville, MD this 9th day of September 2024