ML24358A200
| ML24358A200 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 12/23/2024 |
| From: | Bernstein K, Susan Vrahoretis, Megan Wright NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57244, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2 | |
| Download: ML24358A200 (0) | |
Text
December 23, 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)
Docket No. 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2 NRC STAFF RESPONSE TO PETITIONERS MOTION FOR DOCUMENT DISCLOSURE Pursuant to the Boards December 2, 2024, Memorandum and Order (Order), the Boards May 8, 2024, Initial Prehearing Order,1 and 10 C.F.R. § 2.323(c), the NRC Staff hereby files its response opposing Petitioners Motion for Document Disclosure.2 The scope of this proceeding is limited to contentions based on new information in the site-specific environmental impact statement for Duke Energys subsequent license renewal application for Oconee Nuclear Station Units 1, 2, and 3.3 In its Order, however, the Board invited Petitioners to challenge whether sensitive information the NRC Staff redacted from the June 24, 2024, transcript of the oral argument on contention admissibility in this proceeding, which was 1 Memorandum and Order (Initial Prehearing Order) (May 8, 2024) (unpublished).
2 Motion by Beyond Nuclear and Sierra Club for Document Disclosures Required by the Official Acknowledgment Doctrine (Dec. 16, 2024) (Petitioners Motion).
3 See Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-24-1, 99, NRC 33, 35 (2024) (citing Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), CLI-22-3, 95 NRC 40, 42 (2022)); see also Duke Energy Carolinas, LLC; Oconee Nuclear Station, Units 1, 2, and 3; Draft Supplemental Environmental Impact Statement, 89 Fed. Reg. 10,107 (Feb. 13, 2024).
2 conducted nearly six months ago, and from four filings4 submitted by Petitioners was properly withheld.5 As a threshold matter, the Board has neither the authority nor the discretion to adjudicate Freedom of Information Act (FOIA) or Critical Electric/Energy Infrastructure (CEII) claims or disputes, both of which are beyond the scope of this hearing opportunity. The NRC Staff agrees that the Petitioners may challenge redactions of information they obtained through FOIA process, but they must do so through the NRCs FOIA process and in U.S. District Court, not before this Board.6 Similarly, the Petitioners may challenge determinations that information is sensitive and must be withheld as CEII, but the Board lacks the jurisdiction or authority to adjudicate such challenges. The Congress of the United States designated the Federal Energy Regulatory Commission (FERC) as the authority in the Federal government to designate CEII for other Federal agencies.7 The Board refers to the redacted information as an NRC Staff CEII determination.8 This is not correct, however, as the FAST Act clearly designates FERC as the Federal agency with the authority to make that determination.9 Moreover, the Board has access to unredacted information in this matter and the redactions do not impede the Boards ability to issue its decision on contention admissibility in 4 Transcript of Initial Prehearing Conference (June 24, 2024); 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); 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); Reply by Beyond Nuclear and the Sierra Club to Oppositions to Their Hearing Request and Petition to Intervene (June 7, 2024).
5 Order at 17-19.
6 See 10 C.F.R. § 9.29(c).
7 See Fixing Americas Surface Transportation (FAST) Act, Pub. L. No. 114-94, § 61,003, 129 Stat. 1312, 1773-79 (2015) (codified at 16 U.S.C. § 824o-1) (among other things, providing FERC with the authority to establish criteria and procedures to designate information as CEII and designate information pursuant to those procedures). The FAST Act also gave the Department of Energy the authority to designate its own CEII. See 16 U.S.C. § 824o-1(d)(3) (stating [i]nformation may be designated by the [FERC] or [DOE] as
[CEII] pursuant to the criteria and procedures established by the [FERC.]).
8 Aug. 19 Order at 13.
9 See 16 U.S.C. § 824o-1(d)(2)(A), (3).
3 this narrowly scoped hearing opportunity. Because the Board lacks the authority and the discretion to determine FOIA or CEII disputes, the Board must deny the Petitioners Motion.
The Board stated that it will not entertain challenges to specific redactions that may or may not have been previously publicly available.10 And, because Petitioners declined to sign Protective Order A and have therefore not accepted the procedures the Board put in place to protect nonpublic information,11 the Board limited the scope of Petitioners ability to dispute redactions of sensitive information. As such, the Board limited the scope of Petitioners challenge to whether the redacted transcript and four filings derived from a previously publicly available agency record are ineligible for withholding under the doctrine of official acknowledgement.12 Accordingly, the NRC Staff will address why this proceeding is not the appropriate venue to determine the applicability of the official acknowledgment doctrine and will not address specific redactions to the transcript or the four filings.
This is not the appropriate venue to determine the applicability of the official acknowledgment doctrine.
The official acknowledgment doctrine is a common law doctrine applicable to FOIA proceedings,13 but this is not a FOIA proceeding. Initial FOIA challenges of NRC withholdings are properly brought before one of three NRC FOIA appellate authorities: (1) the Executive Director for Operations; (2) the Secretary of the Commission; or (3) the Inspector General.14 A FOIA requester may challenge the NRCs determination in a Federal district court pursuant to 10 C.F.R. Part 9.15 Moreover, Petitioners counsel has acknowledged that a separate FOIA proceeding, and not this proceeding before the Board, would be the appropriate process to 10 Order at 19 & n.20.
11 See id. at 17.
12 Id. at 19.
13 See e.g., A.C.L.U. v. U.S. Dept of Def., 628 F.3 d 612, 620 (D.C. Cir. 2011); United States v. Zubaydah, 595 U.S. 195, 210, 142 S. Ct. 959, 970 (2022) (referring to the doctrine as the FOIA doctrine).
14 See 10 C.F.R. § 9.29; see also NRC FOIA Guide, https://www.nrc.gov/reading-rm/foia/foia-request.html#appeals (last visited Dec. 23, 2024).
15 See 10 C.F.R. § 9.29; see also NRC FOIA Guide, https://www.nrc.gov/reading-rm/foia/foia-request.html#judicial (last visited Dec. 23, 2024).
4 challenge withholding this information pursuant to FOIA.16 Because this is not the appropriate venue to litigate whether the official acknowledgment doctrine applies, the NRC Staff will not engage with Petitioners arguments about the applicability of the doctrine to the transcript and four filings.
Petitioners expand on their arguments by requesting that the Board broaden the applicability of the official acknowledgment doctrine in this matter and rule prospectively that
[the Board] will not honor future redactions of information in this case.17 As discussed further below, if the Board granted Petitioners requests, the Board would risk undermining FERCs statutory authority to designate CEII, impeding the NRCs ability to carry out its statutory duties and responsibilities under the FAST Act and in accordance with the Memorandum of Understanding (MOU) between the NRC and FERC, thus hindering the NRCs statutory obligation to take all reasonable measures to protect such information from public disclosure.
Moreover, to carry out its statutory duties and responsibilities, the NRC Staff will continue to review agency documents in addition to those previously identified in this case for potential CEII, consistent with the MOU and the NRCs policies on safeguarding and handling sensitive information. As a result, the NRC Staff may have cause in the future to withhold agency documents or sensitive information within agency documents that are currently publicly available from public disclosure.18 To preemptively determine that these withholdings are 16 See Petitioners Motion at 2 (referring to the judicially-established official acknowledgement doctrine of the FOIA.); see also Transcript of Prehearing Conference (July 30, 2024) at 238 (Curran) (Tr.) (stating
[a]nd as a matter of fact, FOIA would basically govern this, or as a guide here. If we wanted to know what FERC was redacting, we would do a FOIA request to FERC, and theyd have to tell us. And if they wouldnt tell us, wed go to district court). Petitioners also indicated during consultation that at an appropriate time they anticipate[d] requesting the Board to establish a process for challenging the redactions See Order at 17 (citing to Petitioners counsels Sept. 6, 2024 consultation email).
17 Petitioners Motion at 9.
18 Agencies often withhold information that was previously available to the public. Threat environments change and, as such, agencies need to be able to respond. See e.g., Withholding Sensitive Homeland Security Information from the Public, Commission Paper COMSECY-02-0015 (Apr. 4, 2002) (Once the agency decided to shut down its website in October of 2001, the staff began formulating a process for the review of information previously made publicly available that may be considered sensitive from the standpoint of potential terrorist activity.); Critical Energy Infrastructure Information, 68 Fed. Reg. 9857,
5 improper exceeds the Boards authority, as discussed further below. Accordingly, the Board must deny Petitioners request.
The requirement to protect CEII is not discretionary.
In 2015, Congress amended the Federal Power Act to add section 215A, to, among other things, give FERC the authority to designate information provided by another Federal agency as CEII.19 CEII includes information about electric/energy infrastructure, the incapacity or destruction of which would negatively affect national security, economic security, public health or safety, or any combination of such matters.20 Protection of CEII is therefore critical to ensuring the safety and security of the public.21 Once information is designated as CEII, it must be withheld from public disclosure pursuant to Federal statute; neither the NRC nor the Board have the authority or discretion to release this information and potentially do harm to the public. The FAST Act is explicit in its direction on how CEII is to be protected. The text of the statute states that CEII:
(A) shall be exempt from disclosure under section 552(b)(3) of title 5, United States Code;[22] and (B) shall not be made available by any Federal, State, political subdivision or tribal authority pursuant to any Federal, State, political subdivision or tribal law requiring public disclosure of information or records.23 9871 (Mar. 3, 2003) (stating that the fact that this information has been previously public does not defeat Exemption 4. Americans live in a different world today than they did prior to September 11, 2001.
Americans have had to face the harsh realities of terrorism on their soil. This has forced the nation to reassess its vulnerability to terrorist threats. Government agencies as well as private companies have had to reconsider the extent to which they make information freely available to others.); Statement of Policy on Treatment of Previously Public Documents, 66 Fed. Reg. 52,917 (Oct. 11, 2001) (noting FERC was reconsidering treatment of certain documents previously made public and no longer making certain documents available until further notice).
19 See 16 U.S.C. § 824o-1.
20 See 16 U.S.C. § 824o-1(a)(2).
21 For background, the Department of Homeland Securitys 2025 Homeland Threat Assessment indicated that, among other things, [d]omestic and foreign adversaries are expected to continue to target our critical infrastructure via prepositioning, cyber, and physical attacks. DHS 2025 Homeland Threat Assessment Indicates the Threat of Domestic and Foreign Terrorism in the Homeland Remains High (Oct.
22 5 U.S.C. § 552(b)(3) is the codification of the Freedom of Information Act, Exemption 3.
23 16 U.S.C. § 824o-1(d)(1)(A)-(B).
6 Further, FERCs regulations implementing the FAST Act state that all CEII is exempt from mandatory disclosure under [FOIA].24 Other Boards have adjudicated whether proprietary information has been appropriately withheld from public disclosure in the context of a contested proceeding before it.25 However, this case does not involve proprietary information or a discovery dispute. The Board states that it has identified no regulation that would prohibit it from considering whether purported CEII or other nonpublic SUNSI [sensitive unclassified safeguards information] is being appropriately withheld from public disclosure[,] but the Board must also abide by Federal law, which prohibits the Board from making CEII publicly available.26 Further, the Board states that its general authority to conduct a fair and impartial hearing should allow it to go beyond regulatory requirements and extend to consideration of nonpublic SUNSI associated with this proceeding, given the relatively recent NRC attention to CEII.27 To support this position, the Board cites to Point Beach, where a Licensing Board went beyond the regulatory requirements to order discovery related to the trustworthiness of individuals who are seeking to obtain allegedly proprietary information.28 But this is not a discovery dispute: the Board has not reached a decision on whether to grant the hearing petition in this matter, there are no current discovery obligations for any party, and the decision in Point Beach deals with discovery, a process over 24 18 C.F.R. § 388.13(c)(1).
25 10 C.F.R. § 2.390(b)(3)-(b)(4). The Board states in its Aug. 19 Order that, consistent with FOIA and 10 C.F.R. § 2.390, licensing boards have the authority to consider and rule on disputes about the nonpublic status of documentary material subject to a protective order. Aug. 19 Order at 10. The Board cites two cases in footnote 14 on the same page to support this proposition: Wis. Elec. Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-81-62, 14 NRC 1747, 1755-56 (1981) and Private Fuel Storage, L.L.C.
(Independent Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 162-84 (2005). Aug. 19 Order at n.14. However, the cases cited discuss Board consideration of whether trade secret information has been properly withheld, which would fall under FOIA Exemption 4 and 10 C.F.R. § 2.390(a)(4). The information at issue here is of a different nature; it is specifically exempted from public disclosure by Federal statute.
This type of information would fall under FOIA Exemption 3 and 10 C.F.R. § 2.390(a)(3) and is therefore treated differently than the information at issue in the cases the Board cited.
26 16 U.S.C. § 824o-1(d)(1); see also 16 U.S.C. § 824o-1(d)(10)-(11).
27 Order at 8 n.6.
28 Point Beach, LBP-82-2, 15 NRC at 53.
7 which presiding officers at the NRC often have some leeway.29 Moreover, here, Federal statutory requirements governing the disclosure of CEII apply, and therefore neither the parties nor the Board have any such leeway.30 To the extent the Board suggests in its August 19, 2024, Order that the NRC Staff retains some discretion over whether or not to invoke FOIA exemption 3 to protect CEII, pursuant to 10 C.F.R. § 2.390(a)(3), and, therefore, that the Board has the authority to establish a process whereby a CEII designation may be contested, and 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 that proceeding[,] the Boards premise and therefore its conclusion are both incorrect as a matter of law.31 CEII is exempt from disclosure under section 552(b)(3) of title 5, of the United States Code.32 To the extent the Board posits that the NRC could decide a CEII designation question of its own volition,33 the Boards premise is similarly incorrect. The language in the FERC regulations and the MOU does not give the NRC Staff any discretion with regard to CEII designations and their subsequent withholding.34 CEII designations for the NRC are made exclusively by FERC.35 As stated in the MOU, the NRC Staff is responsible for identifying potential CEII in its possession and taking all necessary steps to protect it.36 In the 29 See 10 C.F.R. § 2.705(c).
30 See 16 U.S.C. § 824o-1(d)(1); see also 16 U.S.C. § 824o-1(d)(10)-(11).
31 Aug. 19 Order at 13.
32 16 U.S.C.§ 824o-1(d)(1)(A).
33 Aug. 19 Order at 12 n.18.
34 Memorandum of Understanding Between [FERC] and the [NRC] Regarding the Treatment of [CEII]
(June 2018) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML18164A182) (NRC/FERC MOU).
35 See id.; see also Regulations Implementing FAST Act Section 61003-Critical Electric Infrastructure Security and Amending Critical Energy Infrastructure Information; Availability of Certain North American Electric Reliability Corporation Databases to the Commission, 81 Fed. Reg. 93,732, 93,736-37 (Dec. 21, 2016) (Although [FERC] recognizes that other agencies have an obligation to protect certain information in their custody, the FAST Act does not grant other federal agencies the authority to designate information as CEII.) (CEII Regulations).
36 NRC/FERC MOU ¶ 1.
8 case where NRC Staff identifies information that could potentially be CEII, the NRC Staff may consult with FERC to receive a supporting determination of the designation.37 The Board notes that the NRCs MOU states, the decision to invoke FOIA exemption 3 remains with the NRC at all times and interprets this language to mean that the NRC retains discretion to decide whether to invoke FOIA exemption 3 after a CEII designation.38 This interpretation of the MOU is incorrect. The language instead indicates that the NRC accepts and agrees that it is the NRCs responsibility, not FERCs, to withhold CEII once designated.39 Indeed, FERC explained in its regulations implementing the FAST Act that it does not limit the discretion of other Federal agencies to protect sensitive information in their custody but provides a mechanism for agencies to consult with the Commissions CEII Coordinator regarding the treatment or designation of CEII.40 FERC cannot withhold NRC documents on behalf of the NRC; the NRC is responsible for protecting CEII in its possession. Therefore, invoking FOIA exemption 3 to protect CEII remains the NRCs responsibility.41 For the NRC to knowingly fail to invoke FOIA exemption 3 or otherwise protect CEII would be contrary to and a violation of the FAST Act.
Petitioners can fully participate in the proceeding.
Petitioners assertion that the Board must violate a Federal statute by making CEII publicly available in order for Petitioners to fully and meaningfully participate in this proceeding is baseless and without merit.42 In order to access all nonpublic information that is a part of this 37 Id. ¶ 2C; see also CEII Regulations, 81 Fed. Reg. 93,732, 93,737.
38 Aug. 19 Order at 12.
39 See CEII Regulations, 81 Fed. Reg. at 93,736 ([FERC] recognizes that other agencies have an obligation to protect certain information in their custody).
40 See id. at 93,736-37.
41 See NRC/FERC MOU ¶ 2C Any NRC document provided to FERC for a CEII consultation will at all times remain the property of the NRC; id. ¶ 2D: NRC accepts all responsibility for the care, handling, and protection of any NRC document that is determined to be CEII by the CEII Coordinator; NRC will accept responsibility for any disclosure of CEII by NRC employees.
42 Petitioners Motion at 8 (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.).
9 proceeding, Petitioners simply must sign Protective Order A and accept the procedures the Board put in place to protect CEII.43 The Board need not violate the FAST Act to provide Petitioners with the information they require. The Petitioners can accept and adhere to the terms of the Protective Order and gain access to the unredacted CEII contained in the documents in this proceeding.
Conclusion For the foregoing reasons, the Board does not have the authority to adjudicate CEII and make the information at issue publicly available. Further, this is not the appropriate venue to determine the applicability of the official acknowledgment doctrine. If Petitioners want to challenge the CEII designation or its withholding under FOIA, Petitioners have already acknowledged44 that there are more appropriate forums in which they may do so.45 Finally, the Board should also deny Petitioners request to prospectively rule that any future redactions of information in this proceeding should not be honored because such a ruling would impede NRCs responsibility under the FAST Act and in accordance with the MOU to take all reasonable measures to protect CEII from public disclosure.
Prior to ruling on the Petitioners Motion, the Board may wish to refer questions concerning the appropriate scope of this hearing opportunity and its jurisdiction over the NRC Staffs redactions of CEII from publicly available documents to the Commission. The 43 Even though Petitioners have not signed Protective Order A, they are still prohibited from knowingly disseminating CEII publicly. See 18 C.F.R. § 388.113(h) (Unauthorized disclosure of CEII is prohibited.);
see also Aug. 19 Order at 6 n.5 (stating that declining to sign Protective Order A would not impact
[Petitioners] responsibility regarding the maintenance and dissemination of any document lawfully designated as containing CEII under existing statutory and regulatory provisions, regardless of whether the document is covered by the protective order.).
44 Petitioners counsel acknowledges that a challenge to FERCs designation of CEII puts the petitioners in the position of making a FOIA request and or FERC, and dealing with both agencies through that part nine administrative process, or through FERC's administrative process. Tr. at 283 (July 30, 2024)
(Curran). Petitioners do not argue that the Board would have the authority to challenge this designation.
45 For example, 18 C.F.R. § 388.113(j) provides a process for administrative appeals of CEII determinations with FERC. In addition, the FAST Act provides for judicial review of CEII determinations.
See 16 U.S.C. § 824o-1(d)(11). To dispute NRC Staffs mandatory withholding of CEII under FOIA exemption 3, the Petitioners may use the process outlined in 10 C.F.R. Part 9.
10 Commissions resolution of these issues could contribute significantly to the orderly resolution of this proceeding while still ensuring CEII is protected.46 If the Board decides instead to grant Petitioners Motion, the NRC Staff intends to request that the Commission grant a stay of the immediate effectiveness of the Boards order, pursuant to 10 C.F.R. § 2.342, to ensure the continued protection of CEII.
Respectfully submitted,
/Signed (electronically) by/
Megan Wright Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (516) 765-6523 E-mail: megan.wright@nrc.gov
/Executed in Accord with 10 CFR 2.304(d)/
Kevin Bernstein Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-1001 E-mail: Kevin.Bernstein@nrc.gov
/Executed in Accord with 10 CFR 2.304(d)/
Susan Vrahoretis Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9202 E-mail: Susan.Vrahoretis@nrc.gov Dated in Lewes, DE this 23rd day of December, 2024 46 See 10 C.F.R. § 2.341(f)(1) (A ruling referred or question certified to the Commission under §§ 2.319(l) or 2.323(f) may be reviewed if the certification or referral raises significant and novel legal or policy issues, or resolution of the issues would materially advance the orderly disposition of the proceeding.).
December 23, 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)
Docket Nos. 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2 Certificate of Service Pursuant to 10 C.F.R §2.305, I hereby certify that copies of the foregoing, NRC STAFF RESPONSE TO PETITIONERS MOTION FOR DOCUMENT DISCLOSURE, dated December 23, 2024December 23, 2024, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 23rd23rd day of December 2024.
/Signed (Electronically) By/
Megan Wright Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (516) 765-6523 E-mail: megan.wright@nrc.gov Dated in Lewes, DE this 23rd23rd day of December 2024