ML24337A154

02-2024 Memorandum and Order

ML24337A154
Person / Time
Site:	Oconee
Issue date:	12/02/2024
From:	Atomic Safety and Licensing Board Panel
To:	Beyond Nuclear, Duke Energy Carolinas, NRC/OGC, Sierra Club
SECY RAS
References
RAS 57207, 50-287-SLR-2, 50-269-SLR-2, 50-270-SLR-2, ASLBP 24-985-03-SLR-BD01
Download: ML24337A154 (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 DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)

Docket Nos. 50-269-SLR-2, 50-270-SLR-2, and 50-287-SLR-2 ASLBP No. 24-985-03-SLR-BD01 December 2, 2024 MEMORANDUM AND ORDER (Rulings Regarding Protective Order Reconsideration/Clarification Motions and Submissions Concerning Public Release of Redacted Versions of June 24, 2024 Initial Prehearing Conference Transcript, Four Filings by Petitioners, and Ex Parte/Separation of Functions Communications; Establishing Briefing Schedule for Challenging Withholding of Redacted Information)

Pending before the Licensing Board are six submissions regarding the administration of material in the docket of this proceeding that has been identified by the Nuclear Regulatory Commission (NRC) Staff as purportedly containing nonpublic Sensitive Unclassified Non-Safeguards Information (SUNSI). These include (1) the August 27, 2024 motion of applicant Duke Energy Carolinas, LLC (Duke) requesting clarification of certain aspects of the protective orders entered by the Board on August 19, 2024; (2) the August 29, 2024 motion of petitioners Beyond Nuclear, Inc., and the Sierra Club, Inc., (collectively Petitioners) also requesting clarification or reconsideration of certain protective order provisions, to which the NRC Staff responded on September 9, 2024; (3) a September 10, 2024 NRC Staff motion regarding placing a redacted version of the transcript for the June 24, 2024 initial prehearing conference into the public docket for this proceeding; (4) a September 25, 2024 NRC Staff motion regarding placing redacted versions of four filings by Petitioners into the public docket for this proceeding, along with Petitioners September 30, 2024 response that was, in turn, the subject of October 7, 2024 NRC Staff and Duke replies; (5) a November 21, 2024 NRC Staff motion regarding placing revised redacted versions of the four filings by Petitioners into the public docket for this proceeding; and (6) a November 21, 2024 NRC Staff filing regarding placing redacted versions of Board-identified ex parte/separation of functions communications into the public docket of this proceeding.1 Below we deal with each of these submissions as well as establish a briefing schedule for a circumscribed challenge by Petitioners to the withholding of the redacted information in the June 24, 2024 transcript and Petitioners four filings that are now being placed on the public record of this proceeding.

1 See [Dukes] Motion for Clarification of Protective Orders (Aug. 27, 2024) at 2

[hereinafter Duke Clarification Motion]; Motion by [Petitioners] for Clarification and/or Reconsideration of Protective Orders (Aug. 29, 2024) at 1 [hereinafter Petitioners Clarification/Reconsideration Motion]; NRC Staff Answer to [Petitioners] Motion for Clarification and/or Reconsideration of Protective Orders (Sept. 9, 2024) at 1 [hereinafter Staff Answer];

NRC Staff Motion Regarding the Redacted June 24, 2024, Initial Prehearing Conference Transcript (Sept. 10, 2024) at 2 [hereinafter Staff Redacted Transcript Motion]; 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) at 1 [hereinafter Staff Redacted Documents Motion]; Response by

[Petitioners] to NRC Staff Motion Requesting that the Licensing Board Accept Redacted Documents Identified in Appendix 1, Etc. (Sept. 30, 2024) [hereinafter Petitioners Response to Staff Redacted Documents Motion]; NRC Staff Reply to Petitioners September 30, 2024, Response (Oct. 7, 2024) [hereinafter Staff Reply]; [Dukes] Reply to Petitioners Response to the NRC Staffs Motion Concerning Redacted Documents (Oct. 7, 2024) [hereinafter Duke Reply]; NRC Staff Motion Requesting That the Licensing Board Accept the Redacted Documents Identified as Non-Public Attachments A-D to this Motion for Inclusion on the Public Docket (Nov. 21, 2024) [hereinafter Staff Revised Redacted Documents Motion]; NRC Staff November 21, 2024, Notification that Review of Ex Parte/Separation of Functions Communications to Identify [Critical Energy/Electric Infrastructure Information (CEII)] Is Complete (Nov. 21, 2024) [hereinafter Staff Redacted Ex Parte/Separation of Functions Communications Notice].

A.

Clarification/Reconsideration Motions

1.

Duke Clarification Motion

a.

Scope of the Protective Orders In its August 27, 2024 filing, Duke raises two concerns regarding the Boards two August 19, 2024 protective orders. The first involves the scope of covered information, the intent of the prohibition against use or reproduction of covered information for non-adjudicatory purposes, and the intent of the independent source exclusions in the Protective Orders. Duke Clarification Motion at 2. Referencing paragraphs 2.a. and 3 of the Boards protective orders on specific SUNSI (Protective Order A) and ex parte/separation of functions communications (Protective Order B), Duke notes that the Board did not adopt the language of the draft protective orders proposed by the NRC Staff and Duke that distinguished between Authorized Recipients and Authorized Holders.2 As Duke points out, in the draft proposed protective order, the former category was reserved for Petitioners, who could only use covered information for adjudicatory purposes and were required to destroy or return the information at the conclusion of the proceeding. See id. at 3. In contrast, the latter would have covered both Duke and the NRC Staff, allowing the covered information to be used for non-adjudicatory purposes and retained once the proceeding was completed. See id. Duke asserts that the practical effect of not adopting this approach and instead making Duke, the NRC Staff, and Petitioners all Authorized Holders is that while the NRC Staff is allowed to use and reproduce 2 See Duke Clarification Motion at 3 (citing Licensing Board Memorandum and Order (Protective Order A Governing Specific [SUNSI]) (Aug. 19, 2024) (unpublished) [hereinafter Protective Order A]; Licensing Board Memorandum and Order (Protective Order B Regarding Ex Parte/Separation of Functions Communications) (Aug. 19, 2024) (unpublished) [hereinafter Protective Order B]). In an August 26, 2024 issuance regarding the Boards protective orders, to simplify and clarify the marking process associated with these two protective orders, the Board amended the original protective orders to designate the specific SUNSI order as Protective Order A and the ex parte/separation of functions communications order as Protective Order B. See Licensing Board Memorandum and Order (Regarding Nondisclosure Declaration Filings, Reconsideration/Clarification Motions, Nonpublic Document Redaction, and Marking Nonpublic Documents) (Aug. 26, 2024) at 5-6 (unpublished).

covered information for legitimate non-adjudicatory purposes, Duke is not. Id. According to Duke, this formulation was rooted in the Boards expressed concern that nothing before the Board indicated that the covered information involved would necessarily belong to [Duke].3 Nonetheless, Duke maintains that because some of the covered information was generated by Duke as part of its ongoing legal and regulatory responsibilities, including historical regulatory correspondence and Oconee Nuclear Station (ONS) facility design and licensing basis information, the protective order provisions in question impede Dukes ability to access and retain the information to meet its ongoing business and regulatory obligations. See id. at 3-4.

Consequently, Duke asserts, the current scope of these protective order provisions would create significant difficulties for Duke. Id. at 4.

Duke observes as well that while both Protective Orders A and B do have an independent source exclusion that allows covered information otherwise legally obtained to be used in this proceeding, that provision affords Duke no relief. Id. at 4-5 (citing Protective Order A ¶ 19; Protective Order B ¶ 16). Duke asserts this is because it does not appear to affect the general prohibition in both protective orders against all non-adjudicatory uses of the covered information or to alter the general requirement in both orders to destroy all covered material at the conclusion of the proceeding. Id. at 5 (emphasis omitted) (citing Protective Order A ¶¶ 4, 15; Protective Order B ¶¶ 4, 13). And with respect to the latter requirement to destroy all covered information, Duke argues that such a requirement may be a violation of NRC recordkeeping requirements. See id.

To address these concerns, Duke asks that the Board clarify whether (1) the general prohibition in Paragraph 4 of each of the Protective Orders (prohibiting use and reproduction of Covered Information for non-adjudicatory purposes) should be read to permit otherwise lawful 3 Duke Clarification Motion at 3 (quoting Licensing Board Memorandum and Order (Granting Motion to Enter Protective Order) (Aug. 19, 2024) at 6 (unpublished) [hereinafter Board Order Entering Protective Order A]).

non-adjudicatory use and reproduction; and (2) the exceptions in Paragraph 19 of [Protective Order A] and Paragraph 16 of [Protective Order B] 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. Id. at 6.

Licensing Board Ruling: Duke notes correctly that the Boards crafting of both Protective Orders A and B reflected the circumstance that the Board had not yet been informed about the nature and extent of the nonpublic information in the documents protected by each order.

Based on the Boards review of the redacted documents the Staff has submitted for inclusion as part of this proceedings public docket, it is now apparent that the redacted items generally encompass information that originated in an NRC-or Duke-generated document associated with the regulatory process. With this clarification about the information involved, Protective Orders A and B are revised as follows:

(1) Paragraph 4 of Protective Order A is amended to read: Identified CEII and Board-Designated Information 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 or for legitimate business or regulatory activities.

(2) The first sentence of paragraph 19 of Protective Order A is amended to read:4 If CEII or Board-Designated Information 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, use of that information in this proceeding or for legitimate business or regulatory activities without compliance with the terms of this Protective Order shall not be a violation of the terms of this Protective Order if a participants possession of or knowledge about 4 In revising the first sentence of this paragraph and paragraph 16 of Protective Order B in response to the Duke clarification request, the Board also has edited these provisions to simplify their structure.

the information was attained without violation of law or other nondisclosure requirements applicable to that participant.

(3) Paragraph 4 of Protective Order B is amended to read: 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 or for legitimate business or regulatory activities.

(4) The first sentence of paragraph 16 of Protective Order B is amended to read: 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, use of that information in this proceeding or for legitimate business or regulatory activities without compliance with the terms of this Protective Order shall not be a violation of the terms of this Protective Order if a participants possession of or knowledge about the information was attained without violation of law or other nondisclosure requirements applicable to that participant.

Additionally, the Board notes that Dukes concern about the impact of paragraph 15 of Protective Order A requiring the destruction of protected materials seems unwarranted in this instance. Because all the unredacted versions of the Protective Order A documents identified as containing protected information are either participant filings or transcripts in this proceeding, as paragraph 15 indicates they can be retained by the Authorized Holders if they are securely maintained to avoid distribution to unauthorized persons. Protective Order A ¶ 15.

And while paragraph 13 of Protective Order B does not have a similar retention clause, as these ex parte/separation of functions communications apparently are neither business documents nor regulatory documents subject to NRC recordkeeping requirements, Duke destroying the unredacted versions of these materials or returning them to the NRC Staff in accordance with that paragraph should not create an undue burden.

b.

Redaction Challenges Dukes other concern involves Protective Order As paragraphs 11 and 12 as they create the potential for challenges by Petitioners to determinations made by the NRC Staff, in consultation with the Federal Energy Regulatory Commission (FERC), about whether a particular type of SUNSI, i.e., CEII, can be withheld from public disclosure by redacting docketed materials in this proceeding. See Duke Clarification Motion at 6-7. Declaring that the participants appeared to unanimously agree that this adjudicatory proceeding is not the appropriate forum for challenges to CEII designation, Duke notes that the Board nonetheless determined that it had the authority to adjudicate such challenges. Id. at 6. Besides suggesting that the agencys regulations do not authorize such a challenge before a licensing board other than for proprietary information, Duke maintains that permitting such a challenge raises uncertainty about whether the pendency of such a challenge also would result in the Board continuing to withhold the issuance (either public or non-public) of its ruling on standing and contention admissibility. Id. at 6-7 & n.12 (citing 10 C.F.R. § 2.390). Duke thus asks for clarification as to whether that circumstance would cause further delays to this proceeding. Id.

at 7.

Licensing Board Ruling: Along with Dukes assertion that all the participants are in agreement that this adjudication is not an appropriate forum for raising objections to the CEII-based redaction of the June 24, 2024 initial prehearing conference transcript and Petitioners four filings, see infra section D, we find unavailing its suggestion that the Board lacks the authority to consider whether the redacted information has been properly withheld from public disclosure. As we observed in our August 19, 2024 order entering Protective Order A,

[a]s a general rule, the protection from public disclosure afforded by a protective order also brings with it the opportunity for other participants in the proceeding subject to the order to challenge, along with the authority for a presiding officer to rule on, whether the asserted basis for a protected documents nonpublic status is or is not legally permissible such that some or all of the information in the document can be released on the public docket.

Board Order Entering Protective Order A at 9. Duke nonetheless maintains that this authority is limited to proprietary information and does not encompass other types of SUNSI such as CEII without express regulatory authorization.5 Yet, we find nothing in the regulations that specifically precludes a presiding officer, in the exercise of its general authority to conduct a fair and impartial hearing, from considering whether purported CEII or other nonpublic SUNSI is being appropriately withheld from public disclosure.6 Accordingly, with the release of redacted versions of the June 24, 2024 transcript and Petitioners four filings encompassed by Protective Order A, in section D below we provide a focused mechanism for such a challenge process that should not cause any untoward delay in resolving the separate issue of whether Petitioners pending hearing request should be granted.7 5 See Duke Clarification Motion at 6 n.12 (referencing 10 C.F.R. § 2.390 as only providing criteria for determining whether information is proprietary under Freedom of Information Act (FOIA) exemption 4; 3 Off. of Info. Servs., NRC, Management Directives, Pt. 1, Publications, Mail, and Information Services, Directive 3.4, Release of Information to the Public (rev. Feb. 6, 2009) (Agencywide Documents Access and Management System (ADAMS)

Accession No. ML080310417) [hereinafter Management Directive 3.4], as prescribing the normal agency process for deciding whether to invoke FOIA exemptions).

6 Cf. Wis. Elec. Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-2, 15 NRC 48, 53 (1982) (indicating that although regulations did not prohibit or allow discovery by a nonparty to a proceeding, licensing boards general power and duty to conduct a fair and impartial hearing under 10 C.F.R. § 2.718 (now section 2.319) would authorize the board to permit a nonparty to take discovery to determine the trustworthiness of individuals who are seeking its proprietary information under a protective order). Moreover, given the relatively recent NRC attention to CEII, see Tr. at 179-80 (indicating ONS-related information was released in 2015 response to an FOIA request prior to 2018 execution of NRC/FERC memorandum of understanding governing CEII designation) (Woods), the lack of a particular regulation addressing this specific type of SUNSI material does not provide a sufficiently compelling reason to disregard the general practice in adjudications of affording a challenge to the nonpublic status of SUNSI information associated with the proceeding.

7 Although Petitioners have not executed the appropriate nondisclosure declarations so as to come within the specific terms of Protective Order A allowing such a challenge, see Protective Order A ¶ 11, as we note in section D below, rather than impeding their ability to institute a challenge, we conclude their nonaction narrows the scope of the issues they may raise.

2. Petitioners Clarification/Reconsideration Motion In their August 29, 2024 motion, Petitioners seek clarification or reconsideration of the Boards August 19, 2024 issuances concerning Protective Orders A and B and its August 26, 2024 memorandum and order regarding those August 19, 2024 issuances because they concern Petitioners status as non-signers of a nondisclosure declaration for either protective order. See Petitioners Clarification/Reconsideration Motion at 1. Petitioners initially point to paragraph 9 of Protective Order A, which as is relevant here requires that Persons... may not reveal Identified CEII... during any public hearing or conference session. Id. at 1 (quoting Protective Order A ¶ 9). This provision, Petitioners assert, places them in a quandary in that, as non-signers of a nondisclosure declaration, they do not have access to nonpublic Appendix 1 of Protective Order A, which specifies documents identified as containing CEII, so have no way of knowing what information is considered nonpublic. See id. at 1-2. This circumstance, they contend, requires either (1) clarification as to how they are to comply with the prohibition in paragraph 9; or (2) removal of that requirement so that Petitioners cannot be penalized for violating Protective Order A when they do not know what information is subject to its terms. See id. at 2.

Petitioners see paragraph 10 of Protective Order A as raising a similar dilemma. See id.

That paragraph, Petitioners maintain, requires that if a participant, which paragraph 1 of the protective order indicates encompasses the Petitioners as well as the NRC Staff and Duke, has reason to believe that Identified CEII... may have been lost or misplaced... [or] otherwise become available to unauthorized persons, notification shall promptly be made to the presiding officer and legal counsel for the other participants. Id. (quoting Protective Order A ¶ 10). Again, according to Petitioners, they do not have the means to know the identity of any protected information, and request either removal of this requirement or Board guidance as to how they might ensure they comply with this condition. See id.

Petitioners assert as well that Protective Order As paragraph 11, which establishes a process for challenging the NRC Staffs designation of CEII, is unclear with respect to when they will learn what information has been designated as CEII. Petitioners also maintain that while it may be possible to deduce the status of documents under Protective Order A after the documents have been redacted and released, that process nonetheless seems likely to be very imperfect and of limited utility as it places the Petitioners at peril of inadvertently disclosing protected information. Id. at 2-3. Petitioners further assert that they are aware the NRC Staff is in the process of removing some formerly publicly available documents relevant to this proceeding from public ADAMS but they nonetheless will not be able to determine which documents withdrawn by the Staff are listed in Protective Order As Appendix 1, which is a nonpublic document. Id. at 3.

Petitioners also state that they intend to pursue their legal right under the [FOIA] to seek public disclosure of this information pursuant to the NRCs 10 C.F.R. Part 9 procedures and potential federal court litigation. Id. Consequently, they seek modification of paragraph 18 of Protective Order A, see id. at 3, which provides that nothing in the protective order precludes any person from seeking through discovery in any other administrative or judicial proceeding any information protected by this Protective Order, Protective Order A ¶ 18. Petitioners ask the Board to broaden this provisions terms to indicate that the protective order would not 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. Petitioners Clarification/Reconsideration Motion at 3.

In addition, Petitioners point to Dukes August 27, 2024 clarification motion and assert that, like Duke, Petitioners already possess most, if not all, of the information subject to the Protective Order and have other legitimate business and regulatory uses for the information.

See id. at 4. Petitioners legitimate use for the information, they assert, is dissemination and discussion of significant safety and environmental issues with state and local government officials and interested members of the public. Id. Petitioners thus maintain that Dukes request for Protective Orders A and Bs clarification as quoted above, see supra pp. 4-5, should also be addressed by the Board relative to Petitioners similar circumstances. See Petitioners Clarification/Reconsideration Motion at 4.

And while it did not file a rejoinder to Dukes August 27, 2024 clarification motion, the NRC Staff did respond to Petitioners clarification/reconsideration request, asserting in a September 9, 2024 answer that it opposes Petitioners request for reconsideration of portions of Protective Order A. See Staff Answer at 1. The Staff argues that the Board should reject Petitioners request for the elimination of Protective Order As paragraph 9 because removing this provision would create an inconsistency with the NRCs policy on discussions involving nonpublic information and would create uncertainty for the participants about the procedures for discussing nonpublic information as part of this proceeding. Id. at 2 (footnote omitted).

Also unacceptable to the Staff is Petitioners proposal that, if the Board elects not to clarify Protective Order As paragraph 10 regarding lost or misplaced protected information, it should eliminate this provision. See id. at 2. According to the Staff, removing this provision would create an inconsistency 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. Id.

at 2-3 (footnote omitted).

Finally, concerning Petitioners request that the Board revise paragraph 18 of Protective Order A to indicate that the protective order would not preclude any person from seeking public disclosure of any protected information by any lawful means, the Staff claims this change is unnecessary because paragraph 18 does not restrict the ability of any person, including Petitioners, to exercise any legal rights or use other legal venues afforded to them by law or statute regarding public disclosure. Id. at 3-4.

Licensing Board Ruling: Given that Petitioners concerns about Protective Order As paragraphs 9, 10, and 11 are based on a lack of knowledge about what documents are subject to the protective order and what information in those documents might be redacted, the provisions of this Board issuance in section B below granting the NRC Staffs motion to place redacted versions of those documents in the public docket of this proceeding effectively moots those concerns.8 And with regard to their requested change to paragraph 18, we find ourselves in agreement with the NRC Staff that nothing in that paragraph or the protective order generally precludes Petitioners from mounting whatever challenges they wish to raise with regard to the redactions in the five documents that are the subject of Protective Order A.

Finally, while we have revised Protective Order A paragraphs 4 and 19 to incorporate changes that respond to Dukes request for clarification about the application of the protective orders restrictions to its ongoing legitimate business or regulatory use of the redacted information, we are unable to accede to Petitioners request that they be given a similar carveout. It undoubtedly is true that they, like Duke, already possess most or all the information that is the subject of Protective Order A. The legitimacy of Petitioners identified use goes to whether, notwithstanding their apparently lawful initial acquisition of the information, they can continue to disseminate and discuss that information now that it has been identified by the NRC Staff as nonpublic SUNSI. That is a separate issue, the resolution of which we address in section D below.

8 Four of the five documents subject to Protective Order A are Petitioners filings in this case. And while the fifth document, the transcript of the June 24, 2024 initial prehearing conference was not generated by Petitioners, it was made available to them via the agencys E-Filing system before it was withdrawn from the public record at the NRC Staffs request. See Licensing Board Memorandum and Order (Regarding Status of Initial Prehearing Conference Transcript) (June 28, 2024) at 1, 3 (unpublished).

B.

Staff Motion Regarding Redacted Transcript and Petitioners Filings In publicly submitted September 10 and November 21, 2024 motions, the Staff has indicated that it has completed its review of the June 24, 2024 initial prehearing conference transcript and the four documents that previously were identified under Protective Order As Appendix 1 as potentially containing nonpublic information,9 a process that included consultation with FERC regarding whether the transcript and documents contain CEII that must be withheld from public disclosure. See Staff Redacted Transcript Motion at 1; Staff Revised Redacted Documents Motion at 1-2. Further, in its motions the Staff indicated that, after consultation with and no objection from the other participants,10 it was serving redacted versions 9 As reflected in Appendix 1 to Protective Order A, those filings include Petitioners April 29, 2024 intervention petition, Petitioners May 1, 2024 corrected intervention petition, the May 15, 2024 corrected Mitman report in support of Petitioners hearing request; and Petitioners June 7, 2024 reply to the Staff and Duke answers to their hearing petition. See Licensing Board Memorandum (Submitting Documents for Inclusion in the Docket as Nonpublic Information) (Aug. 28, 2024) attach. B, at 1 (APPENDIX 1 to August 29, 2024 Protective Order A - Designated as of 08/28/2024) (unpublished) [hereinafter Board Document Submission Memorandum]. Moreover, in citing Petitioners May 1, 2024 corrected hearing petition in this issuance, see infra notes 12, 20, we reference the redacted version of that filing that will reside in this proceedings public docket pursuant to this issuance.

Relative to this public release, we also note that in deference to the Staffs stated concern that identifying these four documents that previously were in the public docket would draw attention to them and be inconsistent with NRCs policy not to publicly comment on the status of a publicly available document containing SUNSI, we placed Protective Order As Appendix 1 and the NRC Staffs August 9, 2024 in camera filing identifying these four filings by Petitioners into the docket of this proceeding as nonpublic documents. See Board Document Submission Memorandum at 1; see also id. attach. A, at 1-2 & n.2 (NRC Staff August 9, 2024, In Camera Update Regarding Non-Public Information (Aug. 9, 2024)). With the Staffs request for public release of the redacted versions of those documents pursuant to this issuance, various other previously nonpublic documents, including the NRC Staffs August 9, 2024 in camera filing and Protective Order As Appendix 1, will now be placed onto the public docket as well as described in Attachment A to this issuance. See Attach. A at 5-6.

10 As we observed above, see supra note 1 and accompanying text, on September 25, 2024, the NRC Staff filed a request very similar to its November 21, 2024 motion asking the Board to place into the public docket of this proceeding redacted versions of the four Appendix 1 documents. See Staff Redacted Documents Motion at 2. Petitioners did respond to the Staffs September 25, 2024 motion asserting that the wording of the Staffs motion and a recent FERC response to an FOIA request concerning the redacted prehearing conference transcript raised questions about FERCs role in the withdrawal of the transcript and Petitioners filings from the public record and the redaction of nonpublic information from those documents. See Petitioners of the transcript and the four Petitioner filings on the nonpublic docket, reflecting information being withheld under 10 C.F.R. § 2.390(a)(3). See Staff Redacted Transcript Motion at 1-2; Staff Revised Redacted Documents Motion at 2-3. The Staff also requested that the Board accept the redacted transcript and documents for use in the public docket of this proceeding.

See Staff Redacted Transcript Motion at 2; Staff Revised Redacted Documents Motion at 2.

Accordingly, we grant the Staffs requests and incorporate into the public docket of this proceeding the redacted versions of the June 24, 2024 transcript and Petitioners four filings Response to Staff Redacted Documents Motion at 1-3. Acting in accordance with an October 1, 2024 Board order permitting the NRC Staff and Duke to file a reply to Petitioners response, see Licensing Board Memorandum and Order (Regarding Replies to Petitioners Response to NRC Staff Motion Concerning Redacted Documents) (Oct. 1, 2024) at 2 (unpublished), on October 7, 2024, both the Staff and Duke submitted reply filings. In its reply, the Staff asserted that (1) the Staff made the initial identification of potential CEII information that was then sent to FERC for its consideration; (2) the redactions in the documents in question are fully consistent with the FERC CEII designations; (3) the redactions in the documents in question are neither greater than nor less than the FERC CEII designations; and (4) FERC neither demanded nor recommended that NRC redact its documents. Staff Reply at 2-3.

According to the Staff, FERC and NRC, as independent agencies, coordinate and manage the tasks associated with protecting CEII to ensure the safety and security of the electric grid, and nothing in how the redaction process has been handled precludes the Board from accepting the redacted versions of the June 24, 2024 transcript and the Petitioners four filings. Id. at 3, 5-6.

In its reply, Duke asserted that the Petitioners response was not authorized procedurally, raised a new request about which the Petitioners did not consult with the other participants, sought to rely on improper ex parte communications, and provided no basis for further delaying issuance of the Boards standing and contention admissibility decision. See Duke Reply at 2-6.

Putting aside any procedural infirmities that may be associated with Petitioners September 30, 2024 response, as outlined in the NRC Staffs October 7, 2024 reply pleading, we find nothing untoward about the administrative aspects of the NRC Staffs process for making its redaction determinations that would provide a basis for delaying or deferring placing the redacted versions of the June 24, 2024 transcript and the Petitioners four filings into the public docket of this proceeding. Indeed, we find the Staffs description of this process consistent with our earlier observation that, notwithstanding FERCs involvement, this process leaves in the hands of the NRC... the authority... to make a determination about whether and how to implement any FERC CEII designation in terms of treating the information as nonpublic for the purposes of this proceeding. Board Order Entering Protective Order A at 12-13. At the same time, however, we note that the Staffs explanation of its process does not seem to account for the applicability of a provision in the Handbook to Duke-referenced Management Directive 3.4, see supra note 5, governing formerly publicly available documents withdrawn from the public domain by agency policy. See Management Directive 3.4, Handbook 3.4, pt. V, § C, at 28 (rev. Feb. 6, 2009) (Documents Withdrawn From the Public Domain by Agency Policy).

provided in conjunction with the Staffs September 10 and November 21, 2024 motions,11 consistent with the other administrative recordkeeping actions described in Attachment A to this issuance.12 See Attach. A at 2, 4.

11 We do not accord public record treatment, however, to the redacted versions of the four pleadings associated with the NRC Staffs September 24, 2024 motion, given the redactions they contain are not consistent with the versions accompanying the Staffs November 21, 2024 motion. See Staff Revised Redaction Motion at 2 nn.4-5 (recounting that on October 15, 2024, the Staff advised the Board that because of potential redaction inconsistencies with the ex parte/separation of functions communications under review, the four documents should remain nonpublic and indicating that those documents should continue to remain nonpublic). Instead, as outlined in Attachment A to this issuance, they will be marked as subject to Protective Order A and will remain in the nonpublic portion of this proceedings docket. See Attach. A at 5.

12 Incorporating the redacted versions of the transcript and Petitioners four filings into the public record reduces a significant impediment to the Boards identified goal of fulfill[ing] its responsibilities to issue a decision on Petitioners pending hearing request that is based on the public record to the maximum extent feasible, while ensuring that its ruling provides an accurate and adequate explanation of the Boards determinations and supporting reasoning. Board Order Entering Protective Order A at 3.

Nevertheless, still of concern is the uncertain status of the information contained in a 2022 licensing board decision, Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), LBP-22-1, 95 NRC 49, taking sua sponte review, dismissing contentions without prejudice, and terminating proceeding, CLI-22-3, 95 NRC 40, 43 (2022). That decision, which ruled on the previous hearing request by Petitioners challenging Dukes subsequent license renewal application for its ONS facility, has been cited and discussed extensively by the participants in connection with the admissibility of Petitioners first contention in this proceeding.

See Hearing Request and Petition to Intervene by [Petitioners] (Apr. 29, 2024; corrected May 1, 2024) at 7 n.8 (redacted version) [hereinafter Redacted Corrected Hearing Petition]; [Duke]

Answer Opposing the Hearing Request and Petition to Intervene Filed by [Petitioners] (May 31, 2024) at 26-29; NRC Staff Answer to Hearing Request and Petition to Intervene by [Petitioners]

(May 31, 2024) at 4-5, 18-19, 25-29. For the past several months that decision has been unavailable on the agencys public website (along with the balance of volume 95 of Nuclear Regulatory Commission Issuances), although, to the best of our knowledge, there has never been any public notification of (1) its apparent nonpublic status (an approach presumably associated with the presence of SUNSI/CEII in the decision, see supra note 9); or (2) when a redacted version of that decision will be available. This, of course, creates considerable uncertainty about the public/nonpublic status of information in that ruling as it might be referenced by the Board in its contention admissibility decision in this proceeding or by others who might possess a copy of that decision in its published or slip opinion form. Consequently, with the public release of the redacted versions of the June 24, 2024 initial prehearing conference and Petitioners four submissions, this now may be a circumstance the agency wishes to address.

C.

Staff Notice Concerning Completed CEII Review of Ex Parte/Separation of Functions Communications In conjunction with its November 21 motion to place the redacted versions of Petitioners four pleadings into the public record of this proceeding, the NRC Staff also notified the Board that it (1) had completed its review of the two Board-provided sets of ex parte/separation of functions communications for CEII information; and (2) was providing under separate cover for inclusion in the nonpublic docket of this proceeding redacted versions of those communications that could be made publicly available. Staff Redacted Ex Parte/Separation of Functions Communications Notice at 4. In doing so, the Staff noted that because one of the attachments included with one of the communications previously had been reviewed and redacted pursuant to an FOIA request, although it had re-reviewed the document to ensure that the redactions continued to be appropriate, it was providing an ADAMS accession number for the previously redacted document rather than attaching another redacted version to the communication in question.13 Based on the Staffs representation that it has completed its redaction review of the two sets of ex parte/separation of functions communications, including the previously redacted document that was the subject of an FOIA request, we direct that those two sets of documents 13 See Staff Redacted Ex Parte/Separation of Functions Communications Notice at 2-3

& n.5 (citing Response to [FOIA] Request, NRC Form 464, pt. 1, NRC #2018-000318 (Rev),

unnumbered attach. (June 27, 2018) (Office of Enforcement, NRC, Study of Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC (Dec. 18, 2017) (ADAMS Accession No. ML18179A032)).

Additionally, in its notice the Staff indicated in connection with the two sets of ex parte/separation of functions communications documents provided by the Board for SUNSI review that the documents were not text searchable and, therefore, remained not text searchable, as submitted by the NRC Staff to be incorporated into the public docket of this proceeding. Id. at 2 n.4, 4 n.13. The nonsearchable status of these documents reflects the Boards action to image the versions of these documents submitted to the Staff for review to disable the numerous links found in the documents. It appears, however, that some links throughout the documents were re-enabled as a result of the redaction efforts by the Staff.

as provided by the Staff be incorporated into the public docket of this proceeding consistent with the administrative recordkeeping actions described in Attachment A to this issuance. See Attach. A at 6-7.

D.

Challenge by Petitioners to the Nonpublic Status of the Document Redactions As we noted previously, in their August 29, 2024 clarification/reconsideration motion Petitioners stated that they intend to seek public disclosure of this information by using the NRCs 10 C.F.R. Part 9 FOIA procedures and, potentially, in federal court litigation. See supra

p. 10. Thereafter, in one of the e-mail attachments to the NRC Staffs September 10, 2024 motion regarding the June 24, 2024 redacted initial prehearing conference transcript, Petitioners stated that [a]t an appropriate time, we anticipate requesting the Board to establish a process for challenging the redactions in the June 24 transcript and other documents related to this proceeding.14 Consistent with the terms of Protective Order A, because Petitioners declined to execute nondisclosure declarations,15 they were not given access to the redacted transcript or the redacted versions of their four filings when they were submitted on the nonpublic docket by the NRC Staff on September 10 and November 21, 2024. That public availability issue now has been resolved by this issuance, see supra section B, with the redacted transcript and the redacted filings being placed on the public docket of this proceeding. And given these documents now are available to Petitioners, subject to several caveats detailed below, we consider this the appropriate juncture for the submission of a motion challenging the nonpublic 14 Staff Redacted Transcript Motion, attach. 2, at Portable Document Format (PDF) p. 13 (E-mail from Diane Curran, Petitioners Counsel, to Mary Frances Woods, NRC Staff Counsel, and Ryan K. Lighty, Duke Counsel (Sept. 6, 2024 16:02 EDT)).

15 See Petitioners Clarification/Reconsideration Motion at 1 (As non-signers of the

[Protective Order A] nondisclosure declaration, Petitioners do not know what documents have been identified as CEII or Board-Designated information.).

status of any redacted information in the transcript or the four filings,16 which must be submitted in accordance with 10 C.F.R. § 2.323(a)(2) and the applicable terms of the Boards May 8, 2024 initial prehearing order.17 One caveat concerns Petitioners filing deadline. Placing the redacted transcript and the Petitioners four filings into the public portion of the Electronic Hearing Docket (EHD) per the Boards guidance and instructions in Attachment A to this memorandum and order will require a brief period following issuance for administrative processing. Accordingly, the ten (10)-day deadline for filing such a motion will not begin to run until the Office of the Secretary, acting at the request of the Board, provides the participants via the E-Filing system with a notice that those documents are publicly available in the EHD. Thereafter, NRC Staff and Duke responses to any motion by Petitioners shall be filed within ten (10) days from the filing of Petitioners motion.

Additionally, relative to the submission of such a motion, the Board observes that any challenge to the substance of the specific redactions in the June 24, 2024 transcript or Petitioners four docket submissions that involves questioning the status of the particular items 16 Duke makes the point that licensing boards generally have chosen to defer dealing with redaction challenges until after the resolution of the substantive disputes in a proceeding.

See Duke Reply at 6 & n.17 (citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-6, 51 NRC 101, 135, affd in part and revd in part on other grounds, CLI-00-13, 52 NRC 23 (2000); Wis. Elec. Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-81-55, 14 NRC 1017, 1020-21, 1024-26 (1981), affd, ALAB-696, 16 NRC 1245, 1260-62 (1982)). The basis for this deferral has generally been a concern about diverting the parties attention and resources from the ongoing resolution of the merits of a proceedings contested issues. See Private Fuel Storage, LBP-00-6, 51 NRC at 135 (explaining that the board was postponing resolving what information had protected status because the parties and the Board are very busy litigating the merits of the case). But given the procedural posture of this proceeding in which the participants have fully briefed the substantive issues of Petitioners standing and the admissibility of their contentions, we find no compelling basis to postpone allowing Petitioners to air their concern regarding this redaction matter within the strictures outlined by the Board below.

17 This would include the initial prehearing orders provisions concerning a ten-page limit on motions and responsive pleadings and the filing of reply pleadings. See Licensing Board Memorandum and Order (Initial Prehearing Order) (May 8, 2024) at 3-4 (unpublished).

of redacted information as CEII would need to be submitted as a nonpublic filing. Yet, because Petitioners have not executed a nondisclosure declaration, they have not accepted the parameters for such a nonpublic exchange of pleadings as envisioned in Protective Order As paragraph 11.

Accordingly, any motion by Petitioners disputing the redactions to the June 24, 2024 initial prehearing conference transcript or their four filings must be limited to arguments that can be litigated on the public record.18 Further, given the circumstances here, in the Boards estimation that public challenge is restricted to the following issue: Whether, under the doctrine of official acknowledgment, forbidding retraction of information that has been put on the public record,19 any of the material in the June 24, 2024 initial prehearing conference transcript or the Petitioners four filings derived from a previously publicly available agency record that now has been redacted as SUNSI nonetheless is ineligible for subsequent withholding from the public record of this proceeding.20 Accordingly, for the foregoing reasons, it is ORDERED that:

1. Dukes August 27, 2024 clarification motion is granted to the extent that paragraphs 4 and 19 of Protective Order A and paragraphs 4 and 16 of Protective Order B are amended as specified in section A.1.a above; 18 See Point Beach, ALAB-696, 16 NRC at 1261-62 (indicating petitioner must be willing accept the consequences associated with its refusal to sign a protective agreement regarding proprietary information).

19 Staff Redacted Documents Motion, attach. 1, at PDF p. 7 (E-mail from Diane Curran, Petitioners Counsel, to Mary Frances Woods, NRC Staff Counsel (Sept. 24, 2024 11:48 EDT)).

20 It is apparent that in one or more instances, information now redacted from the transcript or from one or more of Petitioners four filings was derived from an agency record that previously was publicly available. See, e.g., Redacted Corrected Hearing Petition at 7 n.8; id.

at 13 & n.30 (referencing Mitman Report at 16 & n.64). Therefore, in considering the overarching issue of the appropriateness in this proceeding of redacting SUNSI-designated

2. Petitioners August 29, 2024 reconsideration/clarification motion is denied relative to the requested changes to paragraphs 4, 9, 10, 11, 18, and 19 of Protective Order A and paragraph 16 of Protective Order B as discussed in section A.2 above;

3. The NRC Staffs September 10 and November 21, 2024 motions to accept the redacted versions of the June 24, 2024 transcript and Petitioners four filings for inclusion in the public docket of this proceeding are granted as described in section B above and those documents are incorporated into the public docket of this proceeding consistent with the administrative recordkeeping actions outlined in Attachment A to this issuance;

4. In accordance with the NRC Staffs November 21, 2024 notification that its review of Board-identified ex parte/separation of functions communications has been completed, as described in section C above the two sets of redacted ex parte/separation of functions communications resulting from that review are incorporated into the public docket of this proceeding consistent with the administrative recordkeeping actions outlined in Attachment A to this issuance; and

5. Any challenge by Petitioners to the redactions in the June 24, 2024 transcript and Petitioners four filings shall be governed by the schedule and directives set forth in section D above.

FOR THE ATOMIC SAFETY AND LICENSING BOARD G. Paul Bollwerk, III, Chair ADMINISTRATIVE JUDGE Rockville, Maryland December 2, 2024 information derived from formerly public agency records, at this juncture the Board will not examine each specific redaction in the transcript or in Petitioners four filings to assess whether the redacted item was part of an agency record that previously was publicly available.

/RA/

Attachment A

ADMINISTRATIVE PROCESSES ASSOCIATED WITH PLACING REDACTED AND UNREDACTED DOCUMENTS INTO THE DOCKET OF THE OCONEE SLR-2 PROCEEDING

1. Unredacted Version of June 24, 2024 Initial Prehearing Conference Transcript. While access to the transcript of the June 24, 2024 initial prehearing conference was provided to the Licensing Board and the participants to this proceeding by an E-Filing e-mail dated June 26, 2024, shortly thereafter the transcript was placed into the docket of this proceeding as a nonpublic document pursuant to a June 28, 2024 Board memorandum and order, which the Board issued in response to a June 27, 2024 NRC Staff e-mail indicating that the Staff was concerned the transcript contained protected information.1 Because this unredacted transcript as it currently is housed in the nonpublic portion of the docket of this proceeding does not bear any markings reflecting its nonpublic status, contemporaneous with the entry of this issuance, the Board is providing to the Office of the Secretary (SECY) a file containing that unredacted transcript, each page of which bears the header denominated in paragraph 6.a. of Protective Order A, as amended,2 identifying that transcript as a nonpublic document subject to the terms of that protective order. This document will replace the unmarked document currently residing in the nonpublic portion of the docket of this proceeding to ensure that its status as a nonpublic document will be apparent as it exists in the NRCs Agencywide Documents Access and Management System (ADAMS) and its Electronic Hearing Docket (EHD). Additionally, the following comment will be added to the ADAMS metadata for the document:3 This document 1 See Licensing Board Memorandum and Order (Regarding Status of Initial Prehearing Conference Transcript) (June 28, 2024) at 1-2 (unpublished).

2 See Licensing Board Memorandum and Order (Regarding Nondisclosure Declaration Filings, Reconsideration/Clarification Motions, Nonpublic Document Redaction, and Marking Nonpublic Documents) (Aug. 26, 2024) at 5 (unpublished).

3 The ADAMS accession number for this issuance will be incorporated into this metadata comment field once that number is assigned as part of the agencys document processing regimen.

was placed in the docket of this proceeding pursuant to a December 2, 2024 Atomic Safety and Licensing Board Memorandum and Order (MLXXXXXXXXX).

2. Redacted Version of June 24, 2024 Initial Prehearing Conference Transcript.

Contemporaneous with the entry of this issuance, the Licensing Board also has provided to SECY a file that consists of only the redacted version of the June 24, 2024 initial prehearing conference transcript that was submitted by the Staff on September 10, 2024, as a nonpublic attachment to its publicly filed motion of that same date. See NRC Staff Non-Public (Transcript) (Sept. 10, 2024). SECY will place that file into the Transcript folder of the public docket as the redacted version of the June 24, 2024 initial prehearing conference transcript with a new ADAMS accession number, but using as much of the metadata from the original filing as is appropriate (e.g., Date Docketed). Additionally, the following comment will be added to the ADAMS metadata for the document: This document was placed in the docket of this proceeding pursuant to a December 2, 2024 Atomic Safety and Licensing Board Memorandum and Order (MLXXXXXXXXX).

3. NRC Staff September 10, 2024 Filing Submitting Redacted Version of June 24, 2024 Initial Prehearing Conference Transcript. In addition, with regard to the Staffs September 10, 2024 nonpublic filing to which the redacted transcript was attached, see id., contemporaneous with this issuance the Licensing Board has provided SECY with a replacement file containing this submission from which has been stricken the uses of the word non-public in the filing itself and the accompanying attachment cover sheet. This is intended to indicate that these references no longer reflect the availability status of the filing or its attachment and so avoid viewer uncertainty about this documents availability status as well as questions regarding the documents availability status during any future information security-related document repository reviews or scans. The availability status of that document (including the attachment) also will be changed by SECY from Non-Publicly Available to Publicly Available so that this pleading will appear in the public portion of the docket for this proceeding. Further, that submission will be moved from the proceedings Transcript folder to its 2024 Pleadings folder consistent with its status as a participant filing. The following comment also will be added to the ADAMS metadata for the document: The availability status of this document was changed from Non-Publicly Available to Publicly Available, pertinent references in the document to its former nonpublic status were lined-out, and this document was moved from the Transcripts folder to the 2024 Pleadings folder of this proceeding pursuant to a December 2, 2024 Atomic Safety and Licensing Board Memorandum and Order (MLXXXXXXXXX).

4. Unredacted Versions of Petitioners Four Filings Listed in Protective Order A, Appendix 1. Regarding the unredacted versions of Petitioners four filings listed in Appendix 1 to Protective Order A, while they were initially docketed as publicly available, their availability status was changed to nonpublic when they were later identified as potentially containing nonpublic information.4 Because they currently do not bear any markings reflecting their nonpublic status, contemporaneous with the entry of this issuance the Board is providing to SECY four files that each contain one of the unredacted filings, with each page of each filing bearing the header denominated in paragraph 6.a. of Protective Order A, as amended, see supra note 2, identifying that filing as a nonpublic document subject to the terms of that protective order. Those documents will replace the unmarked documents currently residing in the nonpublic portion of the docket of this proceeding to ensure that their status as nonpublic documents will be apparent as they reside in the EHD portion of ADAMS. Additionally, the following comment will be added to the ADAMS metadata for each document: This document was placed in the docket of this proceeding pursuant to a December 2, 2024 Atomic Safety and Licensing Board Memorandum and Order (MLXXXXXXXXX).

4 See Licensing Board Memorandum (Submitting Documents for Inclusion in the Docket as Nonpublic Information) (Aug. 28, 2024), attach. A, at 1-2 (NRC Staff August 9, 2024, In Camera Update Regarding Non-Public Information) (unpublished) [hereinafter Board Document Submission Memorandum].

5. Redacted Versions of Petitioners Four Filings Listed in Protective Order A, Appendix 1. Also contemporaneous with the entry of this issuance, the Board has provided to SECY four files that consist of the redacted versions of Petitioners four filings that were submitted by the Staff on November 21, 2024, as nonpublic attachments to its motion of that same date. See Non-Public Attachments A-D (Nov. 21, 2024). SECY will place those files into the public docket as the redacted versions of those four filings with new ADAMS accession numbers, but using as much of the metadata from the original filing as is appropriate (e.g., Date Docketed). Additionally, the following comment will be added to the ADAMS metadata for each of the documents: This document was placed in the docket of this proceeding pursuant to a December 2, 2024 Atomic Safety and Licensing Board Memorandum and Order (MLXXXXXXXXX).

6. NRC Staff November 21, 2024 Filing Submitting Redacted Versions of Petitioners Four Filings Listed in Protective Order A, Appendix 1. And with regard to the Staffs November 21, 2024 filing to which redacted versions of these four documents were attached, see id., contemporaneous with this issuance the Licensing Board has provided SECY with a replacement file containing this filing and the four attachments from which has been stricken the use of the word non-public in the filing itself and the accompanying cover sheets. This is intended to indicate that these references no longer reflect the availability status of the filing or its attachments and to avoid viewer uncertainty about this documents availability status as well as questions regarding its availability status during any future document repository reviews or scans. The availability status of this document (including the attachments) also will be changed by SECY from Non-Publicly Available to Publicly Available so that this filing will appear in the public portion of the docket for this proceeding. Moreover, the following comment will be added to the ADAMS metadata for this document: The availability status of this document was changed from Non-Publicly Available to Publicly Available and pertinent references in the document to its former nonpublic status were lined-out pursuant to a December 2, 2024 Atomic Safety and Licensing Board Memorandum and Order (MLXXXXXXXXX).

7. NRC Staff September 25, 2024 Filing Submitting Redacted Versions of Petitioners Four Filings Listed in Protective Order A, Appendix 1. Concerning the initial September 25, 2024 NRC Staff filing to which redacted versions of Petitioners four documents were attached, see NRC Staff Non-Public Attachments A, B, C, and D (Sept. 25, 2024), because the redacted versions of the Petitioners filings attached to this Staff filing have been superseded by, and so are unalike, those attached to the NRC Staffs November 21, 2024 motion, this filing will remain in the nonpublic portion of the docket of this proceeding. And because this filing and the attachments currently do not bear any markings reflecting their nonpublic status, contemporaneous with the entry of this issuance the Board is providing to SECY a file containing this filing, with each page of the filing bearing the header denominated in paragraph 6.a. of Protective Order A, as amended, see supra note 2, identifying that filing as a nonpublic document subject to the terms of that protective order. This document will replace the unmarked document currently residing in the nonpublic portion of the docket of this proceeding to ensure that its status as a nonpublic document will be apparent as it resides in ADAMS and its EHD. Additionally, the following comment will be added to the ADAMS metadata for this document: This document was placed in the docket of this proceeding pursuant to a December 2, 2024 Atomic Safety and Licensing Board Memorandum and Order (MLXXXXXXXXX).

8. Licensing Boards August 28, 2024 Nonpublic Memorandum. Concerning the Licensing Boards nonpublic August 28, 2024 memorandum submitting the attached NRC Staff August 9, 2024 in camera submission and Appendix 1 to Protective Order A into this proceedings docket as nonpublic documents, see Board Document Submission Memorandum at 1, contemporaneous with this issuance the Licensing Board has provided SECY with a replacement file containing the Boards August 28, 2024 order from which has been stricken the header CONTAINS PROTECTED INFORMATION - SUBJECT TO PROTECTIVE ORDER A on the issuance itself and the accompanying attachments. This is intended to indicate that these references no longer reflect the availability status of the issuance or its attachments and to avoid viewer uncertainty about this documents availability status as well as issues regarding the documents availability status during any future document repository reviews or scans.

Further, the availability status of the document (including the attachments) will be changed by SECY from Non-Publicly Available to Publicly Available so that this issuance will appear in the public portion of the docket for this proceeding. The following comment also will be added to the ADAMS metadata for the document: The availability status of this document was changed from Non-Publicly Available to Publicly Available and pertinent references in the document to its former nonpublic status were lined-out pursuant to a December 2, 2024 Atomic Safety and Licensing Board Memorandum and Order (MLXXXXXXXXX).

9. NRC Staff November 21, 2024 Filing Submitting Redacted Versions of Ex Parte/Separation of Functions Communications. Finally, regarding the Staffs November 21, 2024 filing to which were attached redacted versions of ex parte/separation of functions communications previously referred by the Licensing Board for Staff review for Sensitive Unclassified Non-Safeguards Information (SUNSI), see NRC Staff Non-Public Attachments 1 and 2 (Nov. 21, 2024), contemporaneous with this issuance the Licensing Board has provided SECY with a replacement file containing this filing and the two attachments from which has been stricken (1) the header CONTAINS PROTECTED INFORMATION - SUBJECT TO PROTECTIVE ORDER B on the accompanying attachments; and (2) the uses of the word non-public in the filing itself and the accompanying cover sheets. This is intended to indicate that these references no longer reflect the availability status of the filing and the two attachments and to avoid viewer uncertainty about these documents availability status as well as questions regarding their availability status during any future document repository reviews or scans. The availability status of this document (including the attachments) also will be changed by SECY from Non-Publicly Available to Publicly Available so that this filing will appear in the public portion of the docket for this proceeding. Moreover, the following comment will be added to the ADAMS metadata for this document: The availability status of this document was changed from Non-Publicly Available to Publicly Available and pertinent references in the document to its former nonpublic status were lined-out pursuant to a December 2, 2024 Atomic Safety and Licensing Board Memorandum and Order (MLXXXXXXXXX).

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 (Rulings Regarding Protective Order Reconsideration/Clarification Motions and Submissions Concerning Public Release of Redacted Versions of June 24, 2024 Initial Prehearing Conference Transcript, Four Filings by Petitioners, and Ex Parte/Separation of Functions Communications; Establishing Briefing Schedule for Challenging Withholding of Redacted Information) have been served upon the following persons by Electronic Information Exchange.

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

Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3)

MEMORANDUM AND ORDER (Rulings Regarding Protective Order Reconsideration/Clarification Motions and Submissions Concerning Public Release of Redacted Versions of June 24, 2024 Initial Prehearing Conference Transcript, Four Filings by Petitioners, and Ex Parte/Separation of Functions Communications; Establishing Briefing Schedule for Challenging Withholding of Redacted Information) 2 Duke Energy Corporation 525 South Tryon Street Charlotte, North Carolina 28202 Tracey M. Leroy E-mail: tracey.leroy@duke-energy.com 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 Beyond Nuclear Reactor Oversight Project 7304 Carroll Avenue #182 Takoma Park, MD 20912 Paul Gunter E-mail: paul@beyondnuclear.org Office of the Secretary of the Commission Dated at Rockville, Maryland this 2nd day of December 2024.

KRISTEN HALOJ Digitally signed by KRISTEN HALOJ Date: 2024.12.02 12:44:34 -05'00'