ML24351A248

Motion by Beyond Nuclear and Sierra Club for Document Disclosures Required by the Official Acknowledgement Doctrine

ML24351A248
Person / Time
Site:	Oconee
Issue date:	12/16/2024
From:	Curran D Beyond Nuclear, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Sierra Club
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 57227, 50-287-SLR-2, 50-269-SLR-2, 50-270-SLR-2
Download: ML24351A248 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

)

Duke Energy Carolinas, LLC

) Docket Nos. 50-269/270/287 SLR-2 Oconee Nuclear Station,

) December 16, 2024 Units 1, 2 & 3

)

MOTION BY BEYOND NUCLEAR AND SIERRA CLUB FOR DOCUMENT DISCLOSURES REQUIRED BY THE OFFICIAL ACKNOWLEDGEMENT DOCTRINE I.

INTRODUCTION Pursuant to the Atomic Safety and Licensing Boards (ASLBs) Memorandum and Order (Rulings Regarding Protective Order Reconsideration/Clarification Motions, Etc.) (Dec. 2, 2024), (December 2 Order), Petitioners Beyond Nuclear, Inc. (Beyond Nuclear) and the Sierra Club, Inc. (Sierra Club) hereby move the ASLB to publicly disclose all of the information that the U.S. Nuclear Regulatory Commission (NRC or Commission) Staff has redacted from five documents recently posted by the Staff on the NRCs Electronic Hearing Docket.1 Through this motion, Petitioners seek to ensure a measure of accountability for Duke 1 The five redacted documents are: Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club (Apr. 29, 2024) (2024 Hearing Request); Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club (Apr. 29, 2024, corrected May 1, 2024)

(Corrected 2024 Hearing Request); Report by Jeffrey T. Mitman, NRC Relicensing Crisis at Oconee Nuclear Station: Stop Duke From Sending Safety Over the Jocassee Dam, Updated Analysis of Neglected Safety, Environmental and Climate Change Risks (Apr. 2024, Corrected May 15, 2024) (2024 Mitman Report); Reply by Beyond Nuclear and the Sierra Club to Oppositions to Their Hearing Request and Petition to Intervene (June 7, 2024) (2024 Hearing Request Reply); and Transcript of Initial Prehearing Conference (June 24, 2024) (June 2024 Transcript). See December 2 Order at 13 n.9. Petitioners will refer to them collectively as the Five Documents.

Notice of the Staffs posting of these documents on the Electronic Hearing Docket was provided to the parties via Memorandum from Russell E. Chazell, Assistant for Rulemakings and Adjudications, to Service List re: Designation of Certain Documents as Publicly Available in the Oconee SLR-2 Proceeding (Dec. 3, 2024).

2 Energy Carolinas LLCs (Dukes) and the NRCs failure to follow up on flood protection measures that were deemed essential to public health and safety in 2011 but which the NRC has since abandoned without acknowledging the safety implications -- and now seeks to erase from the public record under a meritless claim that it is protected from disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

As set forth below in Attachment A (Declaration of Jeffrey T. Mitman Regarding Disclosure History of Redacted Documents (Dec. 16, 2024) (Mitman Declaration), and in to Mr. Mitmans Declaration (Table of Public Disclosure of Source Documents and Other Redacted Information in Expert Report of Jeffrey T. Mitman) (Mitman Table), all of the information redacted from the Five Documents satisfies the criteria for public disclosure under the judicially-established official acknowledgement doctrine of the FOIA. See Mobley v.

CIA, 806 F.3d 568, 583 (D.C. Cir. 2015) (citing Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir.

1990)). Therefore, the documents should be publicly released in their entirety.2 In addition, Petitioners request the Board to broaden the scope of its review of the applicability of the official acknowledgment to all of the source documents referenced by Petitioners in footnotes to their 2024 Hearing Request. Petitioners respectfully submit that this measure is necessary to ensure that the record before the ASLB is meaningful and complete.3 2 Petitioners note that Mr. Mitmans Declaration and Attachment 1 focus on the redaction of information from his 2024 Report rather than from the entire set of the Five Documents. As discussed in paragraph 5 of his Declaration, a determination regarding the applicability of the official acknowledgment doctrine to the information redacted from his 2024 Report will also dispose of all of the redactions from the other four documents.

3 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 N.R.C.

33, 67, 94 (1977) (Permissible inquiry at a hearing extend[s] to every matter within the reach of the testimony submitted by the applicants and accepted by the Board.) This principle necessarily extends to the consideration of a hearing request and the documents on which the requester relies.

3 II.

FACTUAL AND PROCEDURAL BACKGROUND Until ten to fifteen years ago, some key information about flooding risk to the Oconee reactors and the degree to which the NRC required the reactors to be protected from flooding was kept off the public record by the NRC. In the past ten to fifteen years, the NRC has placed into the public domain key information about flooding risk to the Oconee reactors, and the degree to which the NRC required the reactors to be protected. In response to a series of FOIA requests and a lawsuit, the NRC posted much of this important information on its Agencywide Document Access and Management System (ADAMS).4 In two separate hearing requests, first submitted in 2021 and then in 2024 in this remanded proceeding, Petitioners relied on that publicly available information to challenge the adequacy of Duke Carolinas L.LC.s (Dukes) subsequent license renewal (SLR) application and the NRC Staffs Draft Environmental Impact Statement (EIS) to satisfy the requirements of the National Environmental Policy Act (NEPA) with respect to the discussion and analysis of flooding risks.5 Each of Petitioners 2021 and 2024 hearing requests was supported by the expert declaration and report of Jeffrey T. Mitman, a risk analyst formerly employed by the NRC, who is familiar with the history of flood protection at Oconee.6 As Mr. Mitman noted in both of his 4 See Mitman Declaration and Attachment 1. The public-facing version of ADAMS is hereinafter referred to as Public ADAMS.

5 See Corrected 2024 Hearing Request and supporting 2024 Mitman Report; Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club and Petition for Waiver of 10 C.F.R. §§ 51.53(C)(3)(i), Etc. (Sept. 27, 2021) and supporting Mitman report, NRC Relicensing Crisis at Oconee Nuclear Station: Stop Duke From Sending Safety Over the Jocassee Dam (Sept.

2021) (hereinafter 2021 Mitman Report).

6 See Mitman 2024 Report at 1.

4 reports, the flood-related information that was made publicly available ten to fifteen years ago was crucial to his ability to evaluate Dukes SLR application and the Draft EIS.7 Unfortunately, however, prior to and during the course of this remanded adjudicatory proceeding, the NRC Staff began to systematically remove from Public ADAMS and the electronic hearing docket Petitioners 2021 and 2024 Hearing Requests, the transcript of the June 2024 Initial Prehearing Conference, and many of the source documents relied on in Petitioners 2021 and 2024 Hearing Requests. Nevertheless, the information remaining in the public record at that time was more than sufficient to support Petitioners 2024 Hearing Request and Mr.

Mitmans 2024 Expert Report.8 7 Mr. Mitman highlighted the importance of these public disclosures as follows:

A note about secrecy: A significant portion of the information relied on in this report was not available publicly until members of the public forced NRC to release it by requesting it under the Freedom of Information Act (FOIA). I am grateful to Jim Riccio for FOIA Request FOIA/PA-2012-0325 (submitted on behalf of Greenpeace) and Dave Lochbaum for FOIA Request FOIA/PA-2018-0010 (submitted on behalf of the Union of Concerned Scientists), which generated some of the key information relied on this report. The NRC never attempted to justify withholding this critical, damming, and now-public safety information from the public eye, nor is any justification evident.

2024 Mitman Report at 3. See also 2021 Mitman Report at 3. Mr. Mitman also explained that his expert report relied exclusively on this publicly available information. While he had cited some nonpublic documents in the footnotes to his report, the citations were for completeness and not content. Id.

8 Mitman 2024 Report at 3. As Mr. Mitman stated:

The information now in the public record is more than sufficient to show that Duke has failed to provide the public with an accurate, up-to-date, and thorough risk analysis of the potential for a serious core melt accident at Oconee Units 1, 2, and 3 during the second license renewal term. In addition, publicly available information is more than sufficient to show that for the past ten years, the NRC has considered the risk of a core melt accident caused by Jocassee Dam failure to implicate the adequacy of protection to public health and safety and require significant measures to prevent catastrophe. By assembling this information into a single document, the author seeks to ensure a measure of accountability by Duke and the NRC that they previously eluded through secrecy.

5 Pursuant to the procedures established in the Boards Protective Order of August 19, 20249, the Staff has now posted redacted versions of Petitioners pleadings, Mr. Mitmans 2024 expert report, and the June 2024 transcript on the electronic hearing docket. In addition, many of the source documents referenced in Petitioners 2024 Hearing Request have been re-posted on Public ADAMS in redacted form.

The asserted basis for the redactions from the Five Documents is that the Staff, in consultation with the Federal Energy Regulatory Commission (FERC) has designated the redacted information as Critical Energy/Electrical Infrastructure Information (CEII) pursuant to NRC-FERC CEII Memorandum of Understanding Extension Third Addendum (Apr. 23, 2024)(ML24116A184 (package)) and Yellow Announcement YA-18-0051, Critical Energy/Electric Infrastructure Information Policy (May 25, 2018) (ML18145A145).10 III. ARGUMENT A. The Redacted Information Must be Released Under the Official Acknowledgment Doctrine.

Whether or not the redacted information satisfies the definition of CEII, there is no basis to redact it here if it would be subject to mandatory disclosure under FOIA: by definition, the NRC would have to disclose it to any interested member of the public. Here, even properly designated CEII is subject to mandatory disclosure, since the NRC officially acknowledged it.

As set forth by the U.S. Court of Appeals for the D.C. Circuit in Mobley:

When information has been 'officially acknowledged,' its disclosure may be compelled even over an agency's otherwise valid exemption claim." Fitzgibbon v. CIA, 911 F.2d 755, 765, 286 U.S. App. D.C. 13 (D.C. Cir. 1990). A three-part test determines whether an item is "officially acknowledged": (1) "the information requested must be as specific 9 Memorandum and Order (Protective Order Governing Specific Sensitive Unclassified Non-.

10 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 at 1 (Nov. 21, 2024).

6 as the information previously released"; (2) "the information requested must match the information previously disclosed"; and (3) "the information requested must already have been made public through an official and documented disclosure. Id.11 Petitioners respectfully submit that all of the redacted information in the Five Documents satisfies this three-part test for official acknowledgment. As set forth in Mr. Mitmans attached Declaration and his Table of Redactions and Disclosures, almost every specific piece of information that has been redacted from the Five Documents matches information in a source document that the NRC officially released by posting it on ADAMS in unredacted form.12 In addition, posting of the source documents on ADAMS constitutes a formal procedural step by which the NRC acknowledges the public status of the document. As described by the NRC on its website, ADAMS is the official recordkeeping system, through which the [NRC]

provides access to its "libraries" or collections of publicly available documents.13 These collections include the Publicly Available Records System Library of more than 2 million full-text documents that the NRC has released since November 1, 1999, to which several hundred new documents are added each day.14 The collections also include the Public Legacy Library, which contains more than 2 million bibliographic citations (some with abstracts and full text) for earlier documents with the majority dating back to 1980, which are available in microfiche formats.15 According to the NRCs website, [n]ew documents become accessible 11 806 F.3d at 583. See also ACLU v. C.I.A., 710 F.3d 422 (D.C. Cir. 2013).

12 In light of the Boards instruction limiting Petitioners to arguments that can be litigated on the public record, Dec. 2 Order at 19, Petitioners have not provided a high level of detail about the respects in which the information they cite matches the information that has been redacted from source documents. If the Board would find it helpful, the Petitioners could provide more detailed information in camera.

13 See https://www.nrc.gov/reading-rm/adams.html. (Last accessed on Dec. 16, 2024).

14 Id.

15 Id.

7 on the day they are published, and are released periodically throughout the day.16 The posting of documents on ADAMS therefore qualifies as official and documented disclosure under Mobley.17 Further evidence of official and documented disclosure is provided by the fact that some of the documents were publicly disclosed by the NRC in response to a FOIA request and may be found in those disclosures.18 Finally, some of the documents were released publicly by NRC as part of a court settlement.19 For each redacted piece of information and related source document, this information is provided in Mr. Mitmans Table.

Mr. Mitmans Table documents the prior release of the specific information matching the information cited in his 2024 Report, either in the cited source document or another source document. Even in the limited cases where Mr. Mitman did not cite a source document for his assertion but instead relied on his own expert knowledge and experience, his Table identifies source documents matching his assertion with the same specific information.

Accordingly, all of the redacted information cited in Mr. Mitmans 2024 Report is subject to the official acknowledgement doctrine and should be released.

16 Id.

17 Petitioners note that FERCs determination that the documents contain CEII does not negate or otherwise invalidate the application of the official acknowledgment doctrine. Indeed, the doctrine applies only to records that are exempt under FOIA, and acts as a waiver of the agencys right to assert that exemption. See New York Times Co. v. FBI., No. 22-CV-3590 (JPO), 2024 WL 3638090, at *3 (S.D.N.Y. Aug. 1, 2024) (construing appellate cases as holding that official acknowledgment doctrine concerns involved the application of the official whether an agency had waived a FOIA exemptionnot to whether an agency had properly invoked an exemption).

And while the NRCs prior releases might not require FERC to release the information, they do bind the NRC itself. See Knight First Amend. Inst. at Columbia Univ. v. CIA, 11 F.4th 810, 816 (D.C. Cir. 2021) (holding that official acknowledgment doctrine applies to the agency from which the information is sought).

18 These FOIA-related disclosures are discussed throughout the Mitman Table.

19 Public Employees for Environmental Responsibility v. NRC, No. 13-1248 (ML13330B641).

8 IV.

THE BOARD SHOULD BROADEN THE SCOPE OF ITS REVIEW OF THE APPLICABILITY OF THE OFFICIAL ACKNOWLEDGMENT TO ALL OF THE SOURCE DOCUMENTS REFERENCED BY PETITIONERS IN FOOTNOTES TO THEIR 2024 HEARING REQUEST.

The Boards December 2 Memorandum and Order is limited to the Five Documents, consisting of pleadings and counsels statements in an oral argument. Given the dependence of the parties arguments on the factual record of safety and environmental regulation at Oconee, however, it is reasonable to expect that the Board will rely to some extent on its own reading of source documents cited by Petitioners and other parties. If those source documents are not publicly available for Petitioners review and discussion in preparing for the next stage of the proceeding (including preparation of briefs and testimony or a motion for reconsideration or appeal), it will adversely affect Petitioners ability to participate in this proceeding in a fair and meaningful way. It may also hamper the Boards ability to consider the full range of evidence that has been submitted by the parties.20 Therefore, Petitioners respectfully submit that the Board should expand its inquiry into the applicability of the official acknowledgement doctrine to all of the source documents cited by Petitioners.

V.

THE BOARD SHOULD RULE PROSPECTIVELY THAT IT WILL NOT HONOR FUTURE REDACTIONS OF INFORMATION THAT MATCHES SPECIFIC INFORMATION THAT WAS PREVIOUSLY POSTED ON PUBLIC ADAMS.

Petitioners respectfully submit that the ASLB should take into consideration the fact that most of the exact information that has been redacted by the NRC Staff from the source documents referenced in Mr. Mitmans 2024 Report remains widely accessible on Public ADAMS. The wide availability of the exact same information in an array of publicly available documents raises serious questions about whether the NRC, after releasing the information 20 See Public Service Co. of New Hampshire, cited above in note _.

9 publicly for decades in a wide variety of documents, has the ability to erase it from the public record as it seems determined to do. And it also raises a particular concern for the fairness of this proceeding: that the NRC Staffs ongoing process of withdrawing and redacting documents that it previously disclosed sets up a hamster wheel that will exhaust the Petitioners with endless rounds of procedural obligations to demonstrate satisfaction of the official acknowledgment doctrine. Therefore, Petitioners request the ASLB to rule prospectively that it will not honor future redactions of information that matches specific information that was previously posted on Public ADAMS.

VI.

CONCLUSION For the foregoing reasons, the redactions from the Five Documents posted on the NRCs Electronic Hearing Docket meet the judicial standard for official acknowledgment. Therefore, the ASLB should order the publication of the Five Documents in their entirety on the Electronic Hearing Docket. In addition, the Board should broaden the scope of its review of the applicability of the official acknowledgment doctrine to all of the source documents referenced by Petitioners in footnotes to their 2024 Hearing Request. Finally, Petitioners request the Board to make a prospective ruling that it will not honor future redactions of information that matches specific information that was previously posted on Public ADAMS.

Respectfully submitted,

__/signed electronically by/___

Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com December 16, 2024

ATTACHMENT A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

)

Duke Energy Carolinas, LLC

)

Docket Nos. 50-269/270/287 SLR-2 Oconee Nuclear Station,

)

December 16, 2024 Units 1, 2 & 3

)

DECLARATION OF JEFFREY T. MITMAN IN SUPPORT OF MOTION BY BEYOND NUCLEAR AND SIERRA CLUB FOR DOCUMENT DISCLOSURES REQUIRED BY THE PUBLIC ACKNOWLEDGEMENT DOCTRINE Under penalty of perjury, I, Jeffrey T. Mitman declare:

INTRODUCTION AND PURPOSE OF MY DECLARATION

1. My name is Jeffrey T. Mitman. By education and experience, I am a nuclear engineer. I have a significant level of expertise in risk analysis, including more than 40 years of experience in the nuclear industry and 16 years as a regulator with the U.S. Nuclear Regulatory Commission (NRC). A full statement of my qualifications and attached Curriculum Vitae were provided in a declaration submitted in this proceeding by Beyond Nuclear, Inc. and the Sierra Club Inc. (hereinafter Petitioners) in support of their Hearing Request and Petition to Intervene (Apr. 29, 2024). See Declaration of Jeffrey T. Mitman in Support of Beyond Nuclear and Sierra Club Hearing Request (Apr. 29, 2024).

2. In support of Petitioners Hearing Request, I prepared a technical report entitled NRC Relicensing Crisis at Oconee Nuclear Station: Stop Duke From Sending Safety Over the Jocassee Dam, Updated Analysis of Neglected Safety, Environmental and Climate Change Risks (Apr. 2024, Corrected May 15, 2024) (hereinafter 2024 Mitman Report). The 2024 Mitman Report updates a technical report I prepared in 2021, when the proceeding first began: NRC Relicensing Crisis at Oconee Nuclear Station: Stop Duke From Sending Safety Over the Jocassee Dam (Sept. 2021) (hereinafter 2021 Mitman Report).

3. The purpose of my Declaration is to demonstrate that all of the NRC-sourced technical information relied on by Petitioners in support of their Hearing Request, including my 2024 Report, has been formally and officially disclosed to the public in documents posted on the NRCs computerized system for managing and publicly disclosing agency documents, known as the Agencywide Document Access and Management System (ADAMS), also referred to herein as Public ADAMS. In addition to posting on Public ADAMS, some of the information has also been disclosed in response to requests made under the Freedom of Information Act (FOIA). As further demonstrated in Attachment 1 to my Declaration, Table of Public Disclosure of Source Documents and Other Redacted Information in Expert Report of Jeffrey T. Mitman (hereinafter Source Document Table), the technical information cited in my 2024 Report matches the technical information in the NRC-sourced documents

2 footnoted or otherwise referred to in my 2024 Report. These disclosures are further discussed below in paragraphs 6 - 12 below.

4. In addition, as discussed in paragraphs 13 - 26 below, the very same information that has been redacted by the NRC Staff from the source documents referenced in my 2024 Report remains widely accessible on Public ADAMS in other documents. In fact, there are so many such documents that it is difficult to conceive how the information could be scrubbed from Public ADAMS. In my opinion, this raises serious questions about whether the NRC, after releasing the information publicly for decades in a wide variety of documents, has the ability to erase it from the public record as it seems determined to do.

5. Finally, I will make a note about the scope of this Declaration and Attachment 1, the Source Document Table. Rather than addressing all five of the documents identified in the Atomic Safety and Licensing Boards December 2, 2024 Memorandum and Order (including Petitioners Hearing Request, Reply to Oppositions to their Hearing Request (July 17, 2024),

and statements by Petitioners counsel in the June 24, 2024 Initial Prehearing Conference), I have focused on the source documents and specific pieces of information I relied on in my 2024 Report. Because I assisted Petitioners in preparation of the Hearing Request and related pleadings and attended the Initial Prehearing Conference, I can also attest that the source documents identified in my 2024 Report are the only sources of information that were relied on by the Petitioners. Thus, by focusing on the source documents identified in my 2024 Report, I have addressed the public disclosure status of all of the information relied on by the Petitioners.

DISCUSSION OF PUBLIC ACKNOWLEDGEMENT OF SPECIFIC MATCHING INFORMATION IN SOURCE DOCUMENTS

6. In the 2021 Mitman Report and the updated 2024 Mitman Report, I have asserted that the current and proposed extended operation of the Oconee nuclear reactors pose an unacceptable risk to public health and safety and the environment, due to Duke Energy Carolinas, LLCs (Dukes) failure to protect Oconee from the flood risk discussed in a 2011 NRC Safety Evaluation.1 My conclusion is based in part on my professional expertise as a nuclear reactor regulator and risk analyst. My conclusion is also based on an extensive set of documents, including NRC safety and environmental reviews, presentations by NRC and Duke, correspondence between NRC and Duke, Dukes subsequent license renewal (SLR) application, and other license application-related documents. I will refer to these documents as source documents.

7. In both my 2021 Report and my 2024 Report, I cited one or more source documents for virtually every technical assertion that I made. The only exceptions were for assertions that were based primarily on my professional expertise or that related to information that I had previously discussed and documented with a source document. And with respect to assertions 1 2024 Mitman Report at 1.

3 based on my professional expertise, a variety of source document are available on Public ADAMS to specifically confirm my assertions.

8. I am extremely familiar with ADAMS and its system for identifying, maintaining and providing access to records related to the NRCs regulation of nuclear facilities. This database contains both publicly available and non-publicly available documents. Those documents which are publicly available are said to be in Public ADAMS.

9. At the time I prepared my 2021 Report, every NRC-sourced document cited in my Report was available on Public ADAMS, either in the Oconee docket or in a set of documents released via a FOIA response. I know this because I personally downloaded them from ADAMS. I relied on the same source documents for my 2024 Report, with a few additions, which I also downloaded from ADAMS. With one exception, all of the source documents relied on in my 2024 Report were still publicly available at the time I prepared my 2024 Report (i.e., April 29, 2024). The only document that was no longer available on ADAMS was the 2011 Safety Evaluation discussed at pages 15 - 18 of my 2024 Report. As discussed at page 3 footnote 3, all of the quotations of the 2011 Safety Evaluation in my 2024 Report were taken from Petitioners 2021 Hearing Request, which at that time remained posted on Public ADAMS.2

10. Despite the withdrawal or redaction of some of the source documents I had relied on in my 2021 Report, I found that most of the information in those documents continued to be widely available in other documents posted on Public ADAMS. Thus, where necessary, I substituted citations to new source documents for citations to source documents that had been withdrawn from ADAMS or re-posted on Public ADAMS with redactions. To the extent my 2024 Report added new source documents issued or discovered since 2021, I cited only publicly available source documents.

11. Thus, my 2024 Report relies exclusively on source documents that at some time were posted on Public ADAMS. And except for the 2011 Safety Evaluation, all of these source documents were accessible on Public ADAMS at the time the 2024 Report was submitted.

Further, significant amount of the specific information I relied on had been released and posted on Public ADAMS in response to FOIA requests.3

12. I am aware that the NRC Staff is now in the process of removing from ADAMS and undertaking a redaction review of more and more documents believed by the Staff, in consultation with the Federal Energy Regulatory Commission (FERC) to constitute Critical Energy/Electric Infrastructure Information (CEII). But aside from the 2011 Safety Evaluation, all of the information in the source documents on which I relied was posted on Public ADAMS as of April 29, 2024, when my 2024 Report was submitted.

2 The NRC Staff later removed the 2021 Hearing Request from Public ADAMS, as well as the ASLBs ruling on the Petitioners Hearing Request.

3 See Attachment 1, Source Document Table.

4 DISCUSSION OF ONGOING PUBLIC AVAILABILITY OF SPECIFIC MATCHING INFORMATION IN SOURCE DOCUMENTS

13. In addition, as discussed below and in the attached Source Document Table, almost all of the specific matching information cited in my 2024 Report is currently available on Public ADAMS, i.e., there is publicly available information in ADAMS today that matches the redacted information.

14. The redacted information falls into four categories: Standby Shutdown Facility (SSF) wall height, flood heights, impacts of flooding on Oconee equipment, and consequences to Oconee of a Jocassee Dam failure.

15. The first category of redacted information is wall height. Wall heights are usually expressed in units of feet. However, they are sometimes expressed as elevations. And sometimes these elevations are referenced to mean sea level (MSL).

16. Information about wall height is redacted from all places in my 2024 Report. See, for example, page 6, line 17. But descriptions of the SSF wall, its history, its original height, and its current height are numerous in Public ADAMS, in other government documents and in other sources. See Source Document Table.

17. The second category of redacted information relates to flood heights from a Jocassee Dam failure. The redacted flood heights are mostly at the SSF but sometimes at other locations, e.g., at the headwaters of the Keowee Dam or at the intake canal. They are usually expressed in units of feet. However, they are sometimes expressed as elevations. In both my 2021 Report and my 2024 Report, a range of flood heights is presented from the multitude of studies that were conducted. The flood heights vary extensively based on the assumptions made in each individual analysis.

18. Information related to flood heights has been redacted extensively from my 2024 Report.

See, for example, page 6, lines 14 and 15. Nevertheless, Public ADAMS contains source documents reporting all of the flood heights cited in my 2024 Report. See Source Document Table.

19. The third category of redacted information relates to impacts of flooding. Examples of impacted equipment include the SSF and the systems that comprise the emergency core cooling systems (ECCS). This equipment is necessary to protect the reactor cores and the public from flooding events.

20. Information about flooding impacts has been redacted from my 2024 Report. See, for example, page 5, lines 25 to 27. Yet, this exact information remains available in other source documents posted on Public ADAMS. See Source Document Table.

5

21. The fourth category of redacted information relates to the consequences of a Jocassee Dam failure. This category is limited to discussions of the timing of core damage and containment failure from a Jocassee Dam failure. There are only a few places this information is discussed in the hearing record and the redacted documents.

22. In my corrected report this information is redacted in three places. The first occurrence of this redaction occurs at Page 29, Line 19. But this exact information can be found in other source documents currently available on Public ADAMS. See Source Document Table.

23. Thus, as demonstrated above, a vast amount of the exact information that has been redacted by the NRC Staff from the source documents referenced in my 2024 Report remains accessible on Public ADAMS.

The factual statements in this declaration are true and correct to the best of my knowledge, and the opinions stated therein are based on my best professional judgment.

Executed in Accordance with 10 C.F.R. § 2.304(d) by Jeffrey T. Mitman Date: December 16, 2024

1 l P a g e ATTACHMENT TO DECLARATION OF JEFFREY T. MITMAN TABLE OF PUBLIC DISCLOSURE OF SOURCE DOCUMENTS AND OTHER REDACTED INFORMATION IN EXPERT REPORT OF JEFFREY T. MITMAN Introduction. This Table provides information about past and current official public disclosures of all of the information that the U.S. Nuclear Regulatory Commission (NRC) Staff has redacted from the corrected expert report by Jeffrey T.

Mitman, NRC Relicensing Crisis at Oconee Nuclear Station: Stop Duke From Sending Safety Over the Jocassee Dam, Updated Analysis of Neglected Safety, Environmental and Climate Change Risks (Apr. 2024, Corrected May 15, 2024)

(Mitman expert report) (All references to Mr. Mitmans expert report in this document refer to his corrected expert report, filed May 15, 2024).

NRC FOIA Responses cited in this Table can be found on the NRCs website at https://www.nrc.gov/reading-rm/foia/closed-request.html. References to the settlement in PEER v. NRC are to the Stipulation of Dismissal and Notice of Settlement issued on Nov. 25, 2013 by the U.S. District Court for the District of Columbia in Public Employees for Environmental Responsibility v. NRC, No. 13-1248 (ML13330B641) (PEER v. NRC Settlement).

The majority of ADAMS Accession numbers in this document are hyperlinked back to the ADAMS database.

2 l P a g e Footnote No.

Page Line(s)

ADAMS Accession No.

Document Date Document Title FOIA

Response

Redacted Information Comment n/a 5

25 - 27 n/a n/a n/a n/a Impacts of flooding See below.

Mr. Mitman did not provide a citation to a source document for the redacted information because flood impacts on reactor equipment are common knowledge. In any event, the redacted information can be found in these other sources which are available on public ADAMS:

NRC presentation - Concerns with Oconee Flooding Issue, 2010.12.22, (ML14058A070). Page 6 indicates which Oconee equipment fails with flooding.

NRC letter to Duke re: Oconee Nuclear Station Units 1, 2 & 3 - Staff Assessment of Flooding Focused Evaluation, 2018.06.18, (ML18141A755). While to this document contains other redactions that are based on CEII criteria, see, e.g., Enclosure 2 pp. 3, 5, 8-12, information about the effects of flooding on reactor equipment is not redacted. See Enclosure 2 at page 4 (PDF page 6 of 15), paragraph 1. Note: These CEII-based redactions were present in the document in 2021 when Mr. Mitman cited it in his expert report in support of Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club, etc. (Sept. 27, 2021). See NRC Relicensing Crisis at Oconee Nuclear Station: Stop Duke from Sending Safety Over the Jocassee Dam at page 5 and footnote 6 (Sept. 2021).

NRC letter to Duke re: Staff Assessment of Dukes Response to Confirmatory Action Letter Regarding Dukes Commitments to Address External Flooding Concerns at the Oconee Nuclear Station, Units 1, 2, and 3 (ONS) (TAC NOS. ME3065, ME3066, AND ME3067), 2011.01.28 (ML110280153) and attached Safety Evaluation by the Office of Nuclear Reactor Regulation Related to Duke Energy Carolinas, LLC Confirmatory Action Letter -

Commitments to Address External Flooding Concerns Closure of Inundation Site Results Oconee Nuclear Station, Units 1, 2, and 3 (ONS) Docket Nos.

50-269, 50-270, and 50-287. Page 1, paragraph 1 of the Safety Evaluation clearly indicates which systems will be impacted by flooding and how they would be affected. Note: Base on a new cover sheet, this document was recently reviewed redacted by NRC for CEII. The redactions were approved by FERC. The information on page 1, paragraph 1 of the Safety Evaluation describing which equipment would be rendered inoperable is not redacted in this FERC approved version.

Duke letter to NRC re: Duke Energy Carolinas, LLC Oconee Nuclear Site, Units 1, 2, and 3 Renewed Facility Operating License, DPR-38, DPR-47, arid DPR-55; Docket Numbers 50-269, 50-270, and 50-287 Response to 10 CFR 50.54(f) Request, September 26, 2008, (ML12363A129), Attachment 2 at PDF page 21 of 34. This document was publicly released pursuant to the PEER v. NRC Settlement via FOIA 2012-0127.

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Redacted Information Comment 10 6

14, 15

& 17 ML16273A128 2016.04.14 NRC Staff Assessment by the Office of NRR Related to flooding Hazard Reevaluation Report NTTF Recommendation 2.1 Oconee 2016-0451 Flood heights SSF flood protection details See below.

As stated in the Mitman Report at page 6, the flood height and depth information cited in this source document, recently redacted by the NRC, originally came from a 1983 hydrological analysis by FERC. The information was reported in the source document at page 8, lines 38 and 39 and on page 9, line 3.

As discussed above, this information was publicly disclosed in FOIA Response 2016-0451. In addition, identical information from the same FERC study is given in another currently available public document. See Duke letter to NRC re: Duke Energy Carolinas, LLC Oconee Nuclear Site, Units 1, 2, and 3 Renewed Facility Operating License, DPR-38, DPR-47, arid DPR-55; Docket Numbers 50-269, 50-270, and 50-287 Response to 10 CFR 50.54(f) Request, September 26, 2008, (ML12363A129), Attachment 2 at PDF pages 14-15 of 34. This document was publicly released pursuant to the PEER v. NRC Settlement via FOIA 2012-0127.

The parameter of the SSF protection characteristics is also described in the same Attachment 2 to Dukes September 26, 2008 letter (ML12363A129) at PDF page 21 of 34.

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Redacted Information Comment 22 8

19 ML110280153 2011 Safety Evaluation on Confirmatory Action Letter to Address External Flooding Concerns (citing nonpublic 1992 Inundation Study) 2012-0325 2016-0664#3 2016-0665 Flood height See below.

The flood height from the 1992 Flood Study for FERC, as cited in the 2011 Safety Evaluation, was recently redacted from the Mitman Report. It was also recently redacted from the source document cited in footnote 22, the 2011 Safety Evaluation.

However, this same information is available in other public documents, including an attachment to an email from Meena Khanna (April 14, 2010)

(ML14058A062). The attachment is titled DRAFT (April 13, 2010) Oconee Nuclear Site Adequate Protection Backfit Documented Evaluation At PDF page 5 of 9, line 3, the attachment discusses the 1992 Duke inundation study performed for FERC. At Line 5, the attachment gives the exact flood height redated from Mr. Mitmans expert report. This record was publicly released via FOIA Response 2012-0325 (Web Package ML15205A393).

In addition, the same information was publicly released via FOIA 2016-0665 (ML20346A170) (Interim Response 3, May 1, 2017) and FOIA Response 2016-0664 (Interim Response 3 (ML20346A165) (May 1, 2017)). Both of these FOIA responses publicly released multiple documents, including an Agents Investigation Report (Case File Number 13-001-13/005). The Agents Investigation Report starts on PDF page 5 of 45 of both of these documents. There are many redactions on this page but the flood height is not redacted. In this document the flood height is reported as an element of an Emergency Action Plan developed by Duke after conducting a flooding inundation study for FEMA. The unredacted flood height in the Agents Investigation Report matches the redacted information in Mr. Mitmans expert report.

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Redacted Information Comment 36 10 26 n/a 1998 1998 SAMA Analysis (page 16)

SSF flood protection details Flood heights See below.

11 1

The 1998 SAMA Analysis (April 1998) does not have an ADAMS Accession number. It is attached to the Application for Renewed Operating Licenses Oconee Nuclear Station, Units 1, 2, and 3 Volume IV. It is currently available at:

https://www.nrc.gov/reactors/operating/licensing/renewal/applications/oconee/exhibitd.pdf. The document on the NRC web at this URL is unredacted. That is, the information that is redacted in the Petitioners corrected hearing request is not redacted in the information source, i.e., the 1998 SAMA Analysis. The SAMA Analysis starts at PDF page 245 of 312. The unredacted direct quote can be found at PDF page 262 of 312 in the Section titled Increasing the Height of The SSF Flood Barrier.

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Redacted Information Comment 45 12 10 &

14 ML081640244 2008.08.15 NRC letter to Duke: Information Request Pursuant to 10CFR50.54(f) Related to External Flooding Including Failure of the Jocassee Dam at ONS Units 1, 2

& 3 2013-0239 SSF flood protection details Flood heights See below.

The source document (ML081640244) was unredacted prior to September of 2024. The paragraph quoted in Mr. Mitmans expert report can be found on page 1 of the letter (paragraph 3). The information is now redacted.

This information is officially documented and currently available in the 1998 SAMA Analysis:

https://www.nrc.gov/reactors/operating/licensing/renewal/applications/oconee/exhibitd.pdf. The document on the NRC web at this URL is unredacted. That is, the information that is redacted in the Petitioners corrected hearing request is not redacted in the information source, i.e., the 1998 SAMA Analysis. The SAMA Analysis starts at PDF page 245 of 312. The specific information can be found at PDF page 262 of 312 in the Section titled Increasing the Height of the SSF Flood Barrier.

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Redacted Information Comment 46 12 16 ML081640244 2008.08.15 NRC letter to Duke: Information Request Pursuant to 10CFR50.54(f) Related to External Flooding Including Failure of the Jocassee Dam at ONS Units 1, 2

& 3 2013-0239 Flood heights See below.

This document was unredacted prior to September of 2024. The redacted information (located on page 2, paragraph 1) describes flood heights from Dukes 1992 Inundation Study for FERC.

The exact redacted values can be found in the publicly available NRC Oconee Nuclear Site Adequate Protection Backfit Documented Evaluation (undated),

(ML14058A049), at page 1 line 36. This document was released via FOIA 2012-0325. See Web Package ML15205A393.

This exact information can be found at:

NRC presentation ONS External Flood Protection Issue, 2009.05.05, (ML14058A020) page 3 of 8.

Untitled and undated NRC document, (ML15113B301) PDF pages 1 of 12, 5 of 12 and 8 of 12.

FOIA 2012-0325 Group J, Records Being Released in Their Entirety, (ML15113B301) PDF pages 5 of 110, paragraphs 4 & 5.

FOIA 2016-0731, Letter from Lawrence Criscione to NRC Chairman Macfarlane, (2012.09.18), (ML15155A992) page 2, last paragraph (PDF page 25 of 46).

FOIA 2014-0027 Group M, Records Being Released in Part, Email thread from Correia dated (2011.08.12) (ML15103A016) PDF page 233 of 378, last paragraph.

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Redacted Information Comment 47 12 17 ML110280153 2011.01.28 Safety Evaluation on Confirmatory Action Letter to Address External Flooding Concerns 2012-0325 Flood heights See below.

The flood height from the 1992 FERC analysis is redacted in the Mitman expert report. It is also redacted cited source document. The flood height was given in the source document on page 1, paragraph 1. But this entire document was previously released under FOIA 2012-0325, Response Number 4, Group I (ML15113B303). At PDF page 5 of 8, the response includes this document among Records Already Publicly Available.

The specific information cited in Mr. Mitmans expert report is available in other public documents. In FOIA 2016-0664 (ML20346A170) Response 3 and FOIA 2016-0664 Response 3 (ML20346A165), the NRC released multiple documents including an Agents Investigation Report, (Case File Number 13-001-13/005).

The Agents Investigation Report starts on PDF page 5 of 45 of both of these documents. There are many redactions on this page but the flood height is not redacted. In this document the flood study is referred to as a flooding inundation study for FEMA and the unredacted flood heights which match the redacted information in the Petitioners corrected hearing request can be found on PDF page 5 of 45.

This exact information is also available in a publicly available attachment to an NRC email. The email from Meena Khanna, dated 2010.04.14. The email attachment is titled DRAFT (April 13, 2010) Oconee Nuclear Site Adequate Protection Backfit Documented Evaluation. Both the email and its attachment have ADAMS Accession Number ML14058A062. The Adequate Protection Backfit Documented Evaluation at page 4 (page 5 of 9 of the PDF) at Line 3 discusses the 1992 Duke inundation study performed for FERC. At Line 5 it gives the exact flood height redated in Petitioners corrected hearing request.

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Redacted Information Comment n/a 13 10 &

11 n/a n/a n/a SSF flood protection details Flood heights See below.

The redacted information concerns flood protection and flood characteristics. While the information is not footnoted, public sources of this information are abundant including the following:

NRC document History of Oconee Flood Concerns - Updated 9/20/12 by Jonathan Barley and John Boska, (ML14058A045). The redacted SSF flood protection details can be found on page 2, bullet 7 (bullet dated June 1984 to June 1986). This document was released in FOIA 2012-0325.

NRC Email thread Jeffrey Mitman, Subject RE: OFI Summary, 2010.01.07, and its attachment Oconee Flooding Issue Summary Draft, (ML13066A214), PDF page 3 of 32, paragraphs 3 and 5, PDF page 4 of 32, paragraph 3.

NRC TIA - Regarding the licensing basis for external flooding (GDC-2) for the ONS SSF, (December XX, 2006) (ML14058A022) [Note: exact date not given]. This unredacted document discusses the SSF flood protection details about 20 times. The first instance is on PDF page 1 of 43, paragraph 3.

NRC document Oconee Nuclear Site Adequate Protection Backfit Documented Evaluation (undated) (ML14058A049) at page 1, paragraph 4; page 2, paragraph 4; page 3, paragraphs 1 & 4. ML14058A049 was released via FOIA 2012-0325. See Web Package ML15205A393.

NRC Email thread: Jeffrey Mitman re: Oconee Adequate Protection Backfit Documented Evaluation - Draft, 2009.12.14 (ML14058A036) and Attachment Oconee Nuclear Site Adequate Protection Backfit Documented Evaluation, at page 2 (PDF page 3 of 9), paragraph 1, page 4 (PDF page 5 of 9), last paragraph, page 5 (PDF page 6 of 9), paragraph 1.

Public sources of the redacted flood height value can be found at:

NRC Presentation: Oconee SSF Flood Barrier Breach SDP - Lessons Learned, undated (ML13052A782). See page 2, slide 11, bullet 6.

NRC Presentation: Oconee SSF Flood Barrier Breach SDP - Lessons Learned, undated (ML14058A077). See PDF page 11 of 21, bullet 6.

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Redacted Information Comment 56 14 19 ML091380424 2009.05.11 Duke Presentation on Oconee External Flood 2012-0325

Response

4, Group I SSF flood protection details The FOIA response states this record is Already Publicly Available. See ML15113B303.

2013-0004A This FOIA response states this record is Already Public -

Released in Entirety.

See ML13360A312.

Also see below.

This slide presentation is no longer publicly available in ADAMS. The SSF flood protection details cited come from Slide 10 of 39, the last bullet. However, as discussed above, the same document was identified as already publicly available in FOIA 2012-0325 and FOIA 213-004A. In addition, these SSF flood protection details and the changes to them can be found in numerous publicly available documents, including:

NRC Oconee Nuclear Site Adequate Protection Backfit Documented Evaluation (undated), at page 1 line 27 (ML14058A049)

NRC Email thread: from Meena Khanna, re: Oconee Adequate Protection Backfit Documented Evaluation (2010.04.14) (attachment at page 7 (PDF page 8 of 9) at line 19. The Khanna email is described above in relation to footnote 22.

,. The email attachment is titled DRAFT (April 13, 2010) Oconee Nuclear Site Adequate Protection Backfit Documented Evaluation. Both the email and its attachment have ADAMS Accession Number ML14058A062. The information can be found in the attachment at NRC document History of Oconee Flood Concerns - Updated 9/20/12 by Jonathan Barley and John Boska, (ML14058A045). The change in the SSF flood protection details can be deduced by comparing page 1, bullet 2 (bullet dated February 1994 - note other bullets in this document corroborate this detail) to page 4, bullet 13 (bullet dated February 2009). This document was publicly released in FOIA 2012-0325.

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Redacted Information Comment 58 15 3

ML093080034 2009.10.28 Duke presentation: Oconee Nuclear Station External Flood NRC Technical Meeting Rockville, MD 10/28/09 2013-0213 Flood heights See FOIA Response at ML14154A405. Also see below.

This slide presentation was recently redacted. The flood height referenced, now redacted, was found on Slide 26 of 36.

Previously, this document was publicly released in its entirety via FOIA 2013-0213.

In addition, the same redacted flood height can be found in other publicly available documents:

NRC Email thread: from Meena Khanna, re: Oconee Adequate Protection Backfit Documented Evaluation, 2010.04.14. The email attachment is titled DRAFT (April 13, 2010) Oconee Nuclear Site Adequate Protection Backfit Documented Evaluation. Both the email and its attachment have ADAMS Accession Number ML14058A062. The same information can be found in the attachment at page 4 (PDF page 5 of 9) at line 17 and at page 7 (PDF page 8 of 9), lines 5 & 20.

FOIA Response 2017-0005 Response 2, Generic Issue Program Proposal - Random Failure of an Upstream Dam (2017.02.02) (ML20289A554). See PDF page 4 of 6, line 12.

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Redacted Information Comment 65 16 4

ML102801532011.01.28 Safety Evaluation on Confirmatory Action Letter to Address External Flooding Concerns 2012-0325 Flood heights See FOIA Interim

Response

ML15112B303.

110 30 28 n/a 33 12 This flood height has been redacted from the Mitman expert report and from the 2011 Safety Evaluation that is the source of the information. The redacted information appears in the 2011 Safety Evaluation at page 12 (PDF page 15 of 17), paragraph 2.

This exact information can be found in a publicly available NRC Email thread from Jeffrey Mitman, re Dam failure frequency - Sensitive Information - Not for Public Disclosure, 2010.02.16, (ML13066A319). page 1, Last paragraph. This record was publicly released via FOIA Response 2012-0325 (see ML15205A393 (2015.07.24)) and FOIA 2012-0325 - Response 1 Partial (see ML13052858, 2013.02.14).

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Redacted Information Comment n/a 18 17 n/a n/a No citation provided in the Petitioners corrected hearing request n/a Flood heights See below 21 The flood heights recently redacted from Mr. Mitmans expert report were derived by the author based on previously referenced material.

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Redacted Information Comment 80 19 9, 10 &

16 ML16272A219 2015.03.06 Duke letter: Supplemental Information Regarding NRC 2008 and 2012 Requests for Information Pursuant to 10 CFR 50.54(f) Pertaining to External Flooding at ONS 2018-0010 Response 3 Flood heights Information cited by Mr. Mitman was publicly released in FOIA 2018-0010.

2022-000210 In FOIA 2022-000210, the NRC subsequently redacted the information cited by Mr. Mitman and gave it a new ADAMS Accession number of ML23068A086. Also see below.

Flood heights recently reported in Mr. Mitmans expert report were found in Table 4 (page 7 of 13) of this letters enclosure, titled Duke letter Supplemental Information re External Flooding. This partially-redacted document was publicly released under FOIA 2018-0010, Response Number 3, on October 26, 2017.

(While the document contained some redactions, those redactions did not include the flood heights in Table 4 that were cited by Mr. Mitman.) CEII criteria.

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Response

Redacted Information Comment 91 22 15 ML24033A298 2024.02 NUREG-1437 Supplement 2 Second Renewal, Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants Supplement 2, Second Renewal Regarding Subsequent License Renewal for Oconee Nuclear Station Units 1, 2, and 3, Draft Report for Comment.

n/a SSF flood protection details See below.

This Draft Environmental Impact Statement was recently redacted to remove SSF flood protection details. The cited information was located on page F-29 at Line 42.

Other publicly available sources of this information include:

NRC document Staff Assessment by the Office of Nuclear Reactor Regulation Related to Flooding Hazard Reevaluation Report Near-Term Task Force Recommendation 2.1 Oconee Nuclear Station. Units Nos. 1. 2. and 3 Docket NO. 50-269. 50-270. and 50-287 (undated) (ML17335A438), page 9, line 1.

Another version of the undated Staff Assessment described directly above can be found at (ML23068A088). This version is dated 2016.04.14. See page 9 (PDF 13 of 84), Line 1. This version was released via FOIA 2022-000210 Response 1 - Final.

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Redacted Information Comment 92 22 19 &

24 ML16272A217 2015.03.06 Revision 1 to Flood Hazard Reevaluation Report Oconee Nuclear Station SSF flood protection details See below.

The SSF flood protection details are redacted from Mr. Mitmans expert report. The details were erroneously attributed to the Dukes Flood Hazard Reevaluation Report, Rev. 1 at Enclosure 1 at page 7. While this reference is incorrect, other sources are publicly available, as described below. Petitioners intend to submit an erratum to correct this error.

The new SSF flood protection details are provided in a publicly available attachment to an NRC email from Meena Khanna (2010.04.14) (attachment at page 7 (PDF page 8 of 9), paragraph 1, Line 20). The Khanna email is described above in relation to footnote 22.

Details are also given in NRC document: History of Oconee Flood Concerns - Updated 9/20/12 by Jonathan Barley and John Boska, (ML14058A045).

The old protection details are described on page 2, bullet 7 (bullet dated June 1984 to June 1986) while the new ones are given at page 4, bullet 13 (bullet dated February 2009). See FOIA 2012-0325.

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Response

Redacted Information Comment n/a 27 Table 3 n/a n/a n/a n/a Flood heights The redacted information from Table 3 - Oconee Flood Heights versus Impacts was not attributed in the Petitioners hear request.

Similar information is also available in a publicly available attachment to an NRC email. The email from Meena Khanna (2010.04.14) (attachment at page 7 (PDF page 8 of 9), paragraph 1,). The Khanna email is described above in relation to footnote 22. Paragraph 1 describes in detail the impact of flooding on Oconee mitigation equipment.

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Redacted Information Comment 105 29 16 &

19 ML082750106 2008.09.26 Duke Energy Carolinas, LLC Oconee Nuclear Site, Units 1, 2, and 3, Renewed Facility Operating License, DPR-38, DPR-47, and DPR-55; Docket Numbers 50-269, 50-270, and 50-287 Response to 10 CFR 50.54()

Request 2013-0239 Impacts of flooding FOIA Response can be found at ML14065A233. Also see below.

107 30 11 &

14 30 24 &

25 The now-redacted values from Mr. Mitmans expert report were obtained from the referenced record at Attachment 2, page 10 (PDF page 22 of 34). This information was publicly released via FOIA 2013-0239.

In addition, the exact information that was recently redacted from this source document can be found unredacted in public ADAMS as follows:

Email thread from Sunil Weerakkody, re RE: OUO SRI - RE: IN Dam Failure Frequency - SUNSI Review - OUO-SRI (2011.10.17) (ML14058A044) at page 2, paragraph 1.

FOIA 2016-0731 Response 11, (ML20294A148) This document contains an email thread from Lawrence Criscione, Inadequately Sized Flood Wall at Oconee Nuclear Station Could Lead to Fukushima Scenario in the Event of a Failure of the Lake Jocassee Dam (2012.09.18). The email has a letter attachment to Chairman Allison Macfarlane (2012.09.18). The information can be found at page 4, paragraph 4, (PDF page 76 of 91).

FOIA 2011-0118 Response 202 - Partial - Group FV. Part 1 of 2. NRC Memo to Bruce A. Boger, Technical Basis for Allowing Oconee Nuclear Station to Remain in Operation Through November 2010 (2009.08.12) (ML14132A009). Enclosure 2, Technical Basis for Allowing Oconee Nuclear Station to Remain in Operation Through November 2010, page 5, paragraph 3 (PDF page 198 of 528).

Similar language can be found in Comments on the Waste Confidence Draft Generic Environmental Impact Statement and Proposed Rule, ML14154A175 at PDF page 137 of 1708, paragraph 2.

FOIA 2014-0027 Response 6 - Interim. Group M (Records Being Released in Part), Email thread from Richard Perkins, re FW: Edit to Screening Analysis

- Office of Nuclear Security and Incident Response (NSIR) requirement (2011.08.31) (ML15103A016), page 2, paragraph 1 (PDF page 250 of 378).

Similar language can be found in email thread from Meena Khanna, re Re: OUO - Oconee Flooding Issue Presentation, 2010.12.22. See email attachment, Presentation: Concerns with Oconee Flooding Issue, 2010.12.22. (ML14058A070). See Slide 4. (PDF page 5 of 35).

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Response

Redacted Information Comment 116 33 4 & 5 ML102170006 2010.08.02 Duke letter: Duke Energy Carolinas, LLC, Oconee Nuclear Station, Units 1, 2, and 3, Renewed Facility Operating License, DPR-38, DPR-47, and DPR-55 Docket Numbers 50-269, 50-270, and 50-287 Oconee Response to Confirmatory Action Letter (CAL) 2-10-003 2012-0325 Interim

Response

4, Group I (ML15113B303)

Flood heights The redacted flood heights in the Petitioners corrected hearing request were obtained from Attachment 1, Table 2, page 5 of 13 (PDF page 9 of 17) of the referenced document. This source document has been recently redacted. The Petitioners know of no unredacted source of this information.

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Response

Redacted Information Comment 117 33 6

ML110280153 2011.01.28 Safety Evaluation on Confirmatory Action Letter to Address External Flooding Concerns (citing nonpublic 1992 Inundation Study) 2012-0325 (ML15113B303)

Flood heights The redacted flood heights from Mr. Mitmans expert report were calculated by the author, based on values provided in the source document. The overtopping value was derived by taking the crest elevation of Keowee Dam and subtracting the flood heights documented in the source document.

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Response

Redacted Information Comment n/a 44 14-16, 17 n/a n/a n/a n/a Impacts of flooding The NRC has recently redacted information regarding flooding impacts from Mr. Mitmans expert report at page 44. His statements regarding these impacts are not footnoted because they are based on his understanding of the site layout and equipment location and impacts of water on the site. The following documents partially substantiate the impacts of flood waters entering the turbine building and other equipment:

The Oconee UFSAR (ML20189A074) in Section 3.4.1.1.1 at page 3.4-2, Current Flood Protection Measures for the Turbine and Auxiliary Buildings, contains a general description of a flooding event and its consequences. Most of this discussion focuses on internal floods caused by failures such as pipe breaks.

Duke letter re: Oconee Nuclear Station Docket Nos. 50-269, -270, -287 (1977.04.21) (ML16030B637) and its attachment Evaluation of Potential for Turbine Building Flooding. This report focuses on internal flooding but describes equipment in the turbine building affected by a flood.

Duke letter re: Oconee Nuclear Station Docket Nos. 50-269, -270, -287 (1986.04.28) (ML15244A112) and attachment Turbine Building Flood Related Modifications at the Oconee Nuclear Station. This letter and its attachment describe modification made to protect the plant from internal turbine building flooding events.

NRC letter Oconee Nuclear Station, Units 1, 2 and 3 Re: Review of Individual Plant Examination of External Events (TAC NOS. MA83649, M83650, and M83651) (200.03.15) (ML003694349) and the attached report Oconee Nuclear Station, Units 1, 2, and 3 Individual Plant Examination of External Events Technical Evaluation Report by the Office of Nuclear Reactor Research, describes in general terms the consequences of a Jocassee Dam failure and its impact on plant equipment. See also Dominant Contributors Section description on page 3 (PDF page 8 of 13).

Oconee UFSAR Section 9.6.2 (1999.12.31) (ML003730145), Standby Shutdown Facility - Design Bases - Turbine Building Flooding Criteria. See PDF page 246 of 452. This UFSAR section describes equipment impacted by a turbine building flood from any source.

NRC presentation Oconee Flood Protection and the Jocassee Dam Hazard (2008.08.28) (ML082550290). Slide 6 (page 3) describes the impact of Jocassee Dam failure on the switchyard.

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Response

Redacted Information Comment 153 44 20, 22, 23, 24

& 30 ML16272A217 2015.03.06 Revision 1 to Flood Hazard Reevaluation Report

[FHRR] Oconee Nuclear Station FOIA

Response

circa 2016 Flood heights Dam breach parameters Released in multiple FOIA responses. See below.

The redacted information in Mr. Mitmans expert report comes from Dukes FHRR Rev. 1, Enclosure 1, Figure 11 (age 31 (PDF page 44 of 83). This Duke report was redacted when initially released circa 2016 via a FOIA response. (The exact date has not been determined.) Figure 11 was not redacted in when the report was released. And Figure 11 is still not redacted today. The redacted values in Mr. Mitmans expert report were read off of the graph which comprises Figure 11 or derived by simple manipulation of information read off the graph.

FHRR Dukes FHRR Rev. 1, Enclosure 1 is also available under ADAMS Accession Number ML23068A085. This version of Dukes FHRR Rev. 1, Enclosure 1 (ML23068A085) was released via FOIA 2022-000210 Response 1 - Final (ML23068A083) signed 2023.03.01. It also contains Figure 11. This FOIA response says the following in part (see page 2, paragraph 20): We have now completed our consultation with the Federal Energy Regulatory Commission (FERC). FERC has designated the dam geometry, breach parameters, and inundation levels contained within these five records as Critical Electric Infrastructure Information (CEII). Accordingly, we have redacted this information on the basis of FOIA exemption 3 (in conjunction with 16 U.S.C. 824o-1(d)) and exemption 7F (see Part II). This CEII review and subsequent redactions did not redact Figure 11. Thus, we conclude that the information contained within Figure 11 is not CEII. Yet, information derived from CEII has been redacted from Mr. Mitmans expert report.

Petitioners note that both versions of Dukes FHRR Rev. 1, Enclosure 1 are highly redacted but the redactions are different.

The Jocassee Dam height can be found in a multitude of NRC and non-NRC documents. Several NRC documents include:

Mr. Mitmans expert report at page 4, paragraph 5 (PDF page 9 of 51). Mr. Mitmans report was reviewed for CEII and redacted, but the NRC did not redact the height of the Jocassee Dam.

NRCs Generic Failure Rate Evaluation of Jocassee Dam (2010.05.15) (ML13039A084) at page 2, paragraph 1 (PDF page 3 of 15). Released with unrelated redactions via FOIA 2013-0239 (ML14065A233).

Petitioners Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club and Petition for Waiver of 10 C.F.R. §§ 51.53(C)(3)(I), ETC.

( 2021.09.27) (ML24338A248), The document was redacted after a CEII review that included consultation with FERC. The unredacted dam parameter can be found at PDF page 36 of 74, paragraph 5.

10 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

)

Duke Energy Carolinas, LLC

) Docket Nos. 50-269/270/287 SLR-2 Oconee Nuclear Station,

)

Units 1, 2 & 3

)

CERTIFICATE OF SERVICE I certify that on December 16, 2024, I posted Motion by Beyond Nuclear and Sierra Club for Document Disclosures Required by the Official Acknowledgement Doctrine and Attachment A, Declaration of Jeffrey T. Mitman (including Attachment 1 to Mr. Mitmans Declaration) on the NRCs Electronic Information Exchange.

___/signed electronically by/__

Diane Curran