ML24281A185
| ML24281A185 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 10/07/2024 |
| From: | Mary Woods NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57134, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2 | |
| Download: ML24281A185 (0) | |
Text
October 7, 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 REPLY TO PETITIONERS SEPTEMBER 30, 2024, RESPONSE
As provided by the Licensing Board in the October 1, 2024, Memorandum and Order,1
the U.S. Nuclear Regulatory Commission (NRC) Staff is replying to the Petitioners September
30, 2024, response2 to the NRC Staffs September 25, 2024, Motion. 3 The NRC Staff
appreciates the Licensing Boards willingness to provide the Staff with an opportunity to correct
certain inaccuracies in the Petitioners r esponse.
Petitioners response to the NRC Staffs motion unnecessarily further delays the
Licensing Boards ability to complete its determination of contention admissibility, which is the
purpose of this proceeding. The Petitioners do not contest the redactions in the documents in
Appendix 1 to the Licensing Boards August 19, 2024, Protective Order or the designation of
specific information as Critical Energy/Electric Infrastructure Information (CEII) or the NRC
1 Licensing Board Memorandum and Order (Regarding Replies to Petitioners Response to NRC Staff Motion Concerning Redacted Documents) (Oct. 1, 2024) (ML24275A189).
2 Response by Beyond Nuclear and the Sierra Club to NRC Staff Motion Requesting that the Licensing Board Accept Redacted Documents Identified in Appendix 1, Etc. (Sept. 30, 2024) (ML24274A332)
(Petitioners 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 o n The Public Docket (Sept. 25, 2024) (ML24269A178) (NRC Staff Motion Regarding Redacted Appendix 1 Documents).
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Staff s responsibility to protect that information, as required by law. 4 Petitioners appear,
however, to misunderstand the NRC Staffs process for redacting CEII even though the Staff
explained the legal requirements for protecting CEII and the processes the Staff adheres to in
this proceeding during the prehearing conference on July 30, 2024, and the process is
described in the 2018 Memorandum of Understanding (MOU) between the NRC and the Federal
Energy Regulatory Commission (FERC), which the Staff referenced in its September 10 and
September 25, 2024 Motions. 5 Petitioners allege that the NRC Staff has made erroneous and
misleading representations about which federal agency is specifically responsible for making
redactions to the documents in Appendix I and pose three questions to the NRC St a ff, 6 but the
Petitioners provide no basis to support their claims. Notwithstanding the Petitioners failure to
support their arguments, the NRC Staff responds herein to the three questions posed by the
Petitioners.
Contrary to the Petitioners assertions, 7 the NRC Staff made the initial identification of
information as potentially being CEII, consistent with the MOU between FERC and the NRC. 8
FERC designated the identified information as CEII, and the NRC Staff then applied the
redactions to the documents consistent with FERCs designation. Further, in response to the
Petitioners questions, the NRC Staff states as follows:
- 1. The redactions in the documents that the NRC Staff transmitted to the Licensing
Board are fully consistent with FERCs designations of CEII.
4 See Petitioners Response at 1 and 3. See also, NRC-FERC CEII Memorandum of Understanding Extension Third Addendum (Apr. 23, 2024) (ML24116A184 (package); ML18164A182 (document)
(NRC/FERC MOU) ), and; Fixing America s Surface Transportation Act of 2015, Pub. L. No. 114-94.
5 See Petitioners Response at 1. See also, July 30, 2024, Prehearing Conference Transcript (July 30, 2024) (ML24213A102) (July 30, 2024, Prehearing Conference Transcript); NRC/FERC MOU; NRC Staff Motion Regarding the Redacted June 24, 2024, Initial Prehearing Conference Transcript (Sept. 10, 2024)
(ML24254A456) (NRC Staff Motion Regarding Redacted Transcript), and; NRC Staff Motion Regarding Redacted Appendix 1 Documents.
6 Petitioners Response at 2 - 3.
7 See id.
8 See NRC/FERC MOU at Section 2, Scope.
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- 2. The redactions sent to the Licensing Board are neither greater than nor less than the
CEII designations determined by FERC.
- 3. FERC neither demanded nor recommended that the NRC Staff redact its documents.
The NRC Staff identified information as potentially being CEII, FERC designated the
identified information as CEII, and the NRC Staff then applied the redactions
consistent with the determination.
Petitioners make several assertions regarding the redactions they do not contest, none
of which support their contentions, their petition for hearing, or a challenge to the NRC St aff s
motion. Petitioners seek clarification of the NRC Staff s process for the review of the
documents in Appendix 1, even though the Staff described its process for the review and
consultation with FERC during the July 30, 2024, prehearing conference. 9 Petitioners then
question which agency made the redactions10 in the documents proffered with the Staffs
September 25, 2024, Motion, while acknowledging that the NRC lacks the statutory authority to
designate information as CEII and that the power to make such designations rests solely with FERC and the Secretary of Energy. 11 Petitioners misplaced focus on which agency is the
driver of the process for identifying, determining, and protecting CEII12 demonstrates that they
misunderstand that the NRC and FERC, as independent agencies, coordinate and manage the
tasks associated with protecting CEII to ensure the safety and security of the electric grid.13
The Petitioners reference to FERCs statement that it did not apply redactions14
reflects Petitioners misunderstanding of FERCs statement and their misunderstanding of the
9 Petitioners Response at 1; See July 30, 2024, Prehearing Conference Transcript at 165-166, and 241 (Woods).
10 See Petitioners Response at 1-2.
11 Petitioners Response at 3.
12 See id. at 2-3.
13 See NRC/FERC MOU at Section 1 - 2.
14 Petitioners Response at 2.
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consultation and redaction process the NRC Staff previously described in detail in this
proceeding. Petitioners cite to an email response from FERC in which FERC stated that FERC
did not apply redactions. 15 As the NRC Staff explained during the July 30, 2024, prehearing
conference, and as described in the 2018 MOU between FERC and the NRC, the St aff s
process for complying with the legal requirements regarding CEII includes consultation with
FERC to determine whether information is CEII, and once FERC has made its determinations,
the Staff appl ies the redactions to the information that FERC designated as CEII in NRC
documents. 16 On July 30, 2024, counsel for NRC Staff explained in detail how the NRC Staff
would consult with FERC on the information at issue. For example, NRC Staff counsel
explained that:
Should the outcome of the NRC staff's consultation with FERC result in necessary redactions to the documents, those will be made accordingly, and the redacted documents re-released for public availability. In other words, the NRC staff would only redact information FERC designates as CEII, and otherwise make the information publicly available.17
Counsel further stated that:
[O]nce the information is reviewed, and we receive that determination from FERC, a redacted version of the documents would be made publicly available with those redactions in place. The intent is that these documents would be placed temporarily non-publicly while that redaction and consultation process is ongoing, and once that is complete the staff would redact accordingly, and provide a publicly available version that is redacted. 18
Consistent with the 20 18 NRC/FERC MOU and the NRC Staffs explanation of its
process for protecting CEII during the July 30, 2024 prehearing conference, the NRC Staff
reviewed NRC documents, identified information in those documents potentially containing CEII,
15 Petitioners Response at 2 (emphasis added).
16 See, e.g., July 30, 2024, Prehearing Conference Transcript at 165-166, and 241 (Woods); NRC/FERC MOU; NRC Staff Motion Regarding Redacted Transcript at 1, and; NRC Staff Motion Regarding Redacted Appendix 1 Documents at 2.
17 July 30, 2024, Prehearing Conference Transcript at 166 (Woods) (emphasis added).
18 Id. at 241 (Woods) (emphasis added).
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requested that FERC review the NRCs documents to determine whether the information
constituted CEII, and FERC then provided its determination as to which material in those NRC
documents should be designated as CEII. 19 As provided in the MOU, the documents remain the
property of the NRC Staff during consultation.20 The documents submitted by the NRC Staff to
the nonpublic docket in this proceeding as part of the Staffs motion requesting that the
Licensing Board accept those redacted documents for use on the public docket are consistent
with the outcome of the NRC Staffs consultation process with FERC.
Petitioners also request that the NRC Staff state the legal basis for each redaction (i.e.,
CEII or other ground(s)) and which agency has determined the necessity for each redaction[,] 21
but also recognize that [t ]he NRC lacks the statutory authority to designate information as CEII;
that power rests solely with FERC and the Secretary of Energy.22 And Petitioners acknowledge
that FERC has made the determination that CEII is present in the documents in Appendix 1 to
the Licensing Boards August 19, 2024, Protective Order because FERC is the agency that has
the authority to make that determination.23 Consistent with the 2018 NRC/ FERC MOU, the NRC
Staff redacted sensitive CEII, designated as such by FERC, from these NRC documents. 24
The NRC Staff has strive d for transparency throughout this proceeding by describing its
process in detail during the July 30, 2024, prehearing conference, providing several updates to
the Licensing Board and the parties throughout the consultation process with FERC, and
consulting with the parties to attempt to resolve issues before filing the Staffs motions
requesting that the Licensing Board accept the redacted June 24, 2024, initial prehearing
19 See NRC/FERC MOU at Section 2, and; July 30, 2024, Prehearing Conference Transcript at 165-166, and 241 (Woods);
20 NRC/FERC MOU at Section 2.C, Consultation with FERCs CEII Coordinator.
21 Petitioners Response at 3.
22 Id. (citation omitted).
23 See id.
24 See NRC/FERC MOU, Section s 2-3.
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conference transcript and Appendix 1 documents for use on the public docket in this proceeding.
Petitioners demonstrate their misunderstanding of the process that was established in 2018 and
was used by the NRC Staff and FERC to identify, designate, and protect sensitive CEII in this
proceeding. Their arguments neither address nor support the admissibility of their contentions or
their petition for hearing and do not aid in resolving issues related to contention admissibility or
the NRC Staff s motions regarding the redacted June 24, 2024, initial prehearing conference
transcript or Appendix 1 documents.
In conclusion, the NRC Staff submits that Petitioners have shown no reason to disturb
the NRC Staff s redaction of information designated by FERC as CEII in this proceeding.
Accordingly, the NRC Staff respectfully requests that the Licensing Board accept the redacted
versions of the documents identified in Appendix 1 of the Licensing Boards August 19, 2024,
Protective Order that the Staff filed on the nonpublic docket as NRC Staff Non-Public
Attachments A, B, C, and D to its motion, with information withheld under 10 C.F.R.
§ 2.390(a)(3), for use on the public docket. The NRC Staff notes that this is consistent with the
approach the NRC Staff followed in its motion providing the Licensing Board with the redacted
transcript in this proceeding, which the Petitioners did not oppose. 25
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 7th day of October 2024
25 See NRC Staff Motion Regarding Redacted Transcript at 2.
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October 7, 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 REPLY
TO PETITIONERS SEPTEMBER 30, 2024, RESPONSE, dated October 7, 2024, have been
served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned
proceeding, this 7th day of October 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 7th day of October 2024