ML24281A124
| ML24281A124 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 10/07/2024 |
| From: | Bessette P, Lighty R, Mattison M Duke Energy Carolinas, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57132, 50-287-SLR-2, 50-270-SLR-2, 50-269-SLR-2 | |
| Download: ML24281A124 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)
Docket Nos. 50-269-SLR-2 50-270-SLR-2 50-287-SLR-2 October 7, 2024 DUKE ENERGY CAROLINAS, LLCS REPLY TO PETITIONERS RESPONSE TO THE NRC STAFFS MOTION CONCERNING REDACTED DOCUMENTS Pursuant to the Atomic Safety and Licensing Boards (Board) Order of October 1, 2024,1 Duke Energy Carolinas, LLC (Duke) submits this Reply to Beyond Nuclears and Sierra Clubs (collectively, Petitioners) response (Response)2 to the U.S. Nuclear Regulatory Commission (NRC) Staffs September 25, 2024 motion requesting that the Board accept and place on the public docket of this proceeding redacted versions of documents previously identified as potentially containing non-public information (Motion).3 As explained below, the Response is not a valid answer pleading because it takes no position on the Motion; instead, it effectively proffers a follow-on motion for clarification of certain informationwhereas Petitioners did not consult the other parties regarding their plan to file such a motion. More troublingly, the Response improperly seeks to exploit yet another unlawful ex parte communication between a non-party and the Board regarding a contested matter in this proceeding. Notwithstanding all of this, even if it is considered 1
Licensing Board Memorandum and Order (Regarding Replies to Petitioners Response to NRC Staff Motion Concerning Redacted Documents) (Oct. 1, 2024) (unpublished) (ML24275A189).
2 Response by [Petitioners] to NRC Staff Motion Requesting That the Licensing Board Accept Redacted Documents Identified in Appendix 1, Etc. (Sept. 30, 2024) (ML24274A332) (Response).
3 NRC Staff Motion Requesting That the Licensing Board Accept Redacted Documents Identified in Appendix 1 to Licensing Board August 19, 2024, Protective Order for Inclusion on the Public Docket (Sept. 25, 2024)
(ML24269A178).
2 in this proceeding, the Response provides no basis to further delay the issuance of the Boards ruling on standing and contention admissibilityparticularly where the Board has already established a separate process (not utilized here) for challenges to proposed redactions.4 Each of these issues is discussed in further detail below.
I.
THE RESPONSE IS PROCEDURALLY UNAUTHORIZED AND RAISES A NEW REQUEST ON WHICH PETITIONERS DID NOT CONSULT THE OTHER PARTIES The Response was filed [p]ursuant to 10 C.F.R. § 2.323.5 That regulation provides that, if a party to the proceeding files a motion, the other parties have a limited opportunity to file an answer to that motion. Importantly, Section 2.323(c) does not permit answer pleadings that merely provide generalized commentary; the regulation expressly limits the scope of authorized answer pleadings to answer[s] in support of or in opposition to the motion.6 Here, the Response does neither of those things. The Response states no position, at all, on whether the Motion should be granted or denied. Indeed, Petitioners admit they are not taking a position on the Motion: instead
[Petitioners] seek clarification of what is the Staffs process for the review of the documents in Appendix 1.7 But that is not a permissible purpose of an answer pleading under 10 C.F.R. § 2.323(c). And Petitioners neither sought nor received leave from the Board to deviate from the limited, codified scope of answer pleadings authorized by Section 2.323(c). For that reason, the Response amounts to an unauthorized and extraprocedural filing.
4 See Licensing Board Memorandum and Order (Granting Motion to Enter Protective Order) at 9-13 (Aug. 19, 2024) (hereinafter Order Granting Motion for Protective Order) (unpublished) (ML24232A211) (describing the adjudicatory pathway for raising such challenges in this proceeding); Licensing Board Memorandum and Order (Protective Order Governing Specific Sensitive Unclassified Non-Safeguards Information) at 6 ¶ 11 (Aug. 19, 2024) (hereinafter Order Governing Specific SUNSI Information) (unpublished) (ML24232A213) (same).
5 Response at 1.
6 10 C.F.R. § 2.323(c) (emphasis added).
7 Response at 1.
3 For the same reasons, Section 2.323(c) does not authorize requests to be filed in lieu of an answer (i.e., a pleading in support of or opposition to a motion). Requests and answers are separate and distinct procedural vehicles. A pleading that requests some action by the tribunal is, by definition, a motion.8 Notwithstanding Petitioners decision to style their pleading, ambiguously, as a response, the pleading effectively requests that the Board issue an order seeking clarification.
That is a textbook example of a motion.
Notably, this is not merely a form-over-substance distinction. Unlike answer pleadings, movants must first consult with the other parties before filing a motion.9 The purpose of the consultation requirement is not trivialit is designed to avoid unnecessary litigation on matters that could be resolved among the parties. Had Petitioners consulted here, the other parties might have successfully guided them to the appropriate process for questioning proposed redactions. And, by doing so, the parties and the Board might have avoided altogether the need to litigate yet another issue in this already-delayed proceeding. Regardless, because Petitioners request for clarification is, in substance, a motion, whereas Petitioners failed to include the required certification of consultation, the regulations plainly specify that the request must be rejected.10 II.
THE RESPONSE IMPROPERLY SEEKS TO RELY ON UNLAWFUL EX PARTE COMMUNICATIONS In simplified terms, an ex parte communication is an off-the-record communication with a judge regarding a matter pending before that judge. Such communications are prohibited because parties before a formal tribunal are entitled to a fair, impartial hearing and equal access to the fact-finder. Courts have long held that ex parte communications violate the parties procedural due 8
See Motion, Blacks Law Dictionary (12th ed. 2024) (A written or oral application requesting a court to make a specified ruling or order.).
9 10 C.F.R. § 2.323(b); Licensing Board Memorandum and Order (Initial Prehearing Order) at 3 n.6 (May 5, 2024)
(unpublished) (ML24129A147).
10 10 C.F.R. § 2.323(b).
4 process rights guaranteed by the United States Constitution.11 In 1976, Congress passed the Government in the Sunshine Act to formalize a statutory prohibition against ex parte communications in agency adjudicatory proceedings.12 And the NRCs corollary prohibition on ex parte communications is codified at 10 C.F.R. § 2.347.
On August 19, 2024, the Board notified the parties that it was in receipt of four e-mails dated July 29 and 30, 2024, and August 3 and 14, 2024, from... a member of the Nuclear Regulatory Commission (NRC) technical staff, and that those emails constituted prohibited ex parte communications.13 Accordingly, the Board issued an order, one purpose of which was to remind [that individual] that he may not engage in off-the-record communications with Commission adjudicatory employees, including the members of this Licensing Board.14 The Board also noted that the NRC Secretary was providing a copy of that order directly to that individual.15 Unfortunately, that August 19, 2024 order does not appear to have dissuaded the continued dispatch of unlawful ex parte communications from the same individual. Indeed, the Response relies on and includes, as an attachment, two additional off-the-record emails, dated September 18, 2024, and September 23, 2024, concerning actively-contested matters in this proceeding, and on which a member of the Board was copied. Both were sent well after the Boards reminder that such communications were unlawful. Thusas should be glaringly obvious to all partiesthose additional, unlawful ex parte communications expressly violate:
11 See, e.g., Pillsbury Co. v. FTC, 354 F.2d 952, 964 (5th Cir. 1966) (ex parte contact in adjudicatory proceeding violates procedural due process); Massachusetts Bay Telecasters, Inc. v. FCC, 261 F.2d 55, 66-67 (D.C. Cir. 1958)
(secret attempts to influence FCC vitiate licensing proceeding).
12 See 5 U.S.C. § 557(a), (d).
13 Licensing Board Memorandum and Order (Notice Concerning Ex Parte/Separation of Functions Communications) at 1 (Aug. 19, 2024) (unpublished) (ML24232A221).
14 Id. at 3.
15 Id. at 4.
5 (1) the Boards August 19, 2024 Order; (2) NRC regulations; (3) the Government in the Sunshine Act; and (4) the United States Constitution.
Notwithstanding, Petitionerswho appear to be in contact with the sender to some undisclosed extentnow affirmatively seek to rely on those unlawful communications, which are at the core of the Response.
Given the instant circumstances, Duke has serious concerns regarding the fundamental fairness of this proceeding. The scope of collaboration between Petitioners and the sender (a current agency employee) is unclear and certainly has not been disclosed to Duke. In any event, it is one thing for a party to be a passive bystander to unlawful conduct; but it is quite another for that party to take affirmative steps to exploit the fruit of the poisoned tree, as Petitioners are seeking to do here. Such actions simply cannot be tolerated in NRC adjudicatory proceedings.
III.
THE RESPONSE PROVIDES NO BASIS TO FURTHER DELAY THE ISSUANCE OF THE BOARDS RULING ON STANDING AND CONTENTION ADMISSIBILITY To the extent the Response could be interpreted as suggesting that the Board should further delay the issuance of its ruling on standing and contention admissibility until after Petitioners requested clarifications are provided, or until after any potential redaction disputes are resolved, that suggestion is without basis. Petitioners will have a full and fair opportunity to question or challenge the designation of information as non-public.16 But it simply is not necessary to resolve those matters now, at the expense of further delay in dispositioning the hearing request. Issuance of the Boards ruling on standing and contention admissibility would not, in any way, prejudice that 16 See Order Granting Motion for Protective Order at 9-11 (regarding the adjudicatory pathway for challenges to the designation of information as non-public in this proceeding); see also Order Governing Specific SUNSI Information at 6 ¶ 11 (contesting the status of protected information); see generally 10 C.F.R. Part 9 (describing NRC procedures for challenging decisions to withhold information under the Freedom of Information Act).
6 process. In fact, in NRC adjudicatory practice, the normal course is to issue rulings first and address redaction disputes later.17 If Petitioners are advocating to turn that process upside-down, they supply no basis for, and identify no benefit from, that seemingly unprecedented result. And Petitioners certainly have not identified any harm or prejudice to their interests in deferring to the Board-established process regarding such redactions. Accordingly, Petitioners invitation to further delay this already-delayed proceeding is unpersuasive.
Respectfully submitted, Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 Ryan.Lighty@morganlewis.com Executed in Accord with 10 C.F.R. § § 2.304(d)
PAUL M. BESSETTE, Esq.
MOLLY R. MATTISON, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5796 (202) 739-5540 Paul.Bessette@morganlewis.com Molly.Mattison@morganlewis.com Executed in Accord with 10 C.F.R. § § 2.304(d)
TRACEY M. LEROY, Esq.
DUKE ENERGY CORPORATION 4720 Piedmont Row Drive Charlotte, North Carolina 28210 (704) 382-8317 Tracey.LeRoy@duke-energy.com Counsel for Duke Energy Carolinas, LLC Dated in Washington, DC this 7th day of October 2024 17 See, e.g., Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), LBP-00-6, 51 NRC 101, 135 (2000) (explaining that the resolution of disputes over designation of information as non-public is best left until after the resolution of the substantive disputes in the proceeding); Wis. Elec. Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-81-55, 14 NRC 1017, 1020-21, 1024-26 (1981) (following issuance of a protective order, it is appropriate for a licensing board to defer ruling on objections concerning the publics right to know until after its ruling on the substantive matters); see also id. at 1020-21 (if a petitioner chooses not to avail itself of the mechanisms instituted by a licensing board to protect arguably non-public information, it may create problems for the petitioner, but those problems cannot affect the licensing boards substantive ruling).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)
Docket Nos. 50-269-SLR-2 50-270-SLR-2 50-287-SLR-2 October 7, 2024 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing DUKE ENERGY CAROLINAS, LLCS REPLY TO PETITIONERS RESPONSE TO THE NRC STAFFS MOTION CONCERNING REDACTED DOCUMENTS was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Duke Energy Carolinas, LLC