ML24358A273
| ML24358A273 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 12/23/2024 |
| From: | Bassette P, Leroy T, Lighty R Duke Energy Carolinas, Duke Energy Corp |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57245, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2 | |
| Download: ML24358A273 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)
Docket Nos. 50-269-SLR-2 50-270-SLR-2 50-287-SLR-2 December 23, 2024 DUKE ENERGY CAROLINAS, LLCS ANSWER OPPOSING PETITIONERS MOTION FOR DOCUMENT DISCLOSURES RYAN K. LIGHTY, Esq.
PAUL M. BESSETTE, Esq.
MORGAN, LEWIS & BOCKIUS LLP TRACEY M. LEROY, Esq.
DUKE ENERGY CORPORATION Counsel for Duke Energy Carolinas, LLC
ii TABLE OF CONTENTS I.
INTRODUCTION............................................................................................................. 1 II.
BACKGROUND............................................................................................................... 1 III.
PETITIONERS REQUEST TO RELEASE THE REDACTED INFORMATION SHOULD BE DENIED..................................................................................................... 3 A.
The Fitzgibbon Test Is Used to Evaluate Waiver Claims under the Official Acknowledgment Doctrine................................................................... 3 B.
The Fitzgibbon Test Is Quite Strict.................................................................... 4 C.
The Motion Fails to Carry Petitioners Burden to Demonstrate Satisfaction of the Third Prong of the Fitzgibbon Test............................................................. 5 D.
The Third Prong of the Fitzgibbon Test Is Objectively Unsatisfied Here............. 6 IV.
PETITIONERS OTHER REQUESTS FOR RELIEF SHOULD BE DENIED ON MULTIPLE GROUNDS................................................................................................... 9 V.
CONCLUSION................................................................................................................ 10
1 I.
INTRODUCTION Pursuant to the Atomic Safety and Licensing Boards (Board) orders of December 2, 2024 (Dec. 2, 2024 Order) and December 11, 2024,1 Duke Energy Carolinas, LLC (Duke) hereby files its answer in opposition to the motion filed by Beyond Nuclear, Inc. and the Sierra Club, Inc. (together, Petitioners) on December 16, 2024 (Motion).2 Among other things, the Motion asks the Board to publicly release certain Critical Energy/Electric Infrastructure Information (CEII) that the U.S. Nuclear Regulatory Commission (NRC) Staff, in direct consultation and coordination with the Federal Energy Regulatory Commission (FERC), has determined to be exempt from disclosure under the Freedom of Information Act (FOIA).
Importantly for these purposes, FERC has defined CEII as including information that... could be useful to a person planning an attack on critical infrastructure.3 As explained below, in Dukes view, the Board should DENY the Motion in its entirety.4 II.
BACKGROUND In its Dec. 2, 2024 Order, the Board ordered the public release of redacted versions of the transcript and four pleadings in this proceeding. The information redacted from those documents (Redacted Information) is CEII, as determined by FERC. By statute, CEII is required to be withheld from public release and is exempt from public disclosure under the FOIA.5 1
Licensing Board Memorandum and Order (Rulings Regarding Protective Order Reconsideration/Clarification Motions, Etc.) (Dec. 2, 2024) (unpublished) (Dec. 2, 2024 Order); Licensing Board Memorandum and Order (Granting Petitioners Unopposed Time Extension Motion) (Dec. 11, 2024) (unpublished).
2 Motion by Petitioners for Document Disclosures Required by the Official Acknowledgement Doctrine (Dec. 16, 2024).
3 18 C.F.R. § 388.113(c)(2).
4 Duke is merely a third-party in the instant FOIA dispute between Petitioners and the NRC. Duke lacks the authority to designate information as CEII or withhold information under FOIAthat is within the governments purview. And Duke is not seeking disclosure of any such information in this proceedingonly Petitioners are doing so. Nevertheless, Duke provides the assessment herein to assist the Board in reaching the correct resultas a matter of both law and policyon the instant Motion.
5 16 U.S.C. § 824o-1(d)(1) (CEII shall be exempt from disclosure under section 552(b)(3) of title 5.)
2 The Board also established a limited-scope opportunity for Petitioners to challenge the withholding of the Redacted Information.6 Specifically, the Board acknowledged that at least some of the Redacted Information was derived from an agency record that previously was publicly available. Because prior public availability of information canin some limited circumstancesoperate as a waiver of the governments ability to invoke a FOIA exemption (under the official acknowledgement doctrine), the Board invited Petitioners to address the sole question of whether the circumstances here operate as a waiver that prevents the NRC from withholding the Redacted Information in adjudicatory documents in this proceeding.
Rather than focusing on the Boards sole question, the Motion is rife with hyperbole, unauthorized relief requests, and extraneous issues that the Board expressly declined to litigate here. Indeed, only 2.5 pages in Petitioners 37-page filing address the issue at hand.7 The bulk of the filingincluding its 28-page attachmentpurports to address the public availability status of the Redacted Information. In contrast, the Board clearly stated that it would not examine that topic in the instant challenge opportunity.8 Accordingly, Duke offers no views on the attachment. Furthermore, the Motion contains two relief requestsseeking reconsideration of the scope of the instant challenge opportunity (as specifically defined by the Board) and a vague prospective declaration from the Boardthat were not sanctioned by the Dec. 2, 2024 Order.
6 Although the Board has held that it has the authority to adjudicate this issue (Dec. 2, 2024 Order at 7-8), Duke continues to respectfully disagree for the reasons Duke previously stated and those articulated in the NRC Staffs December 23, 2024 Answer. Duke acknowledges that licensing boards have general authority maintain orderly proceedingsand the Board has done so here by issuing Protective Order A. But the Petitioners refusal to participate in that orderly framework does not further expand the Boards jurisdiction.
7 Motion at 5-7.
8 Dec. 2, 2024 Order at 19-20 n.20 (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).
3 As detailed below, those requests should be summarily denied on multiple substantive and procedural grounds.
Finally, on the sole question to be addressed in this briefing, the Motion fails to carry Petitioners pleading burden. Congress directed that CEII be protected from public disclosure for good reasonbecause it is the type of information that may be of interest to terrorists who are intent on endangering American lives. Not surprisingly, then, rescinding the cloak of protection Congress bestowed on CEII requires satisfaction of an extraordinarily high legal standard. As detailed below, Petitioners short 2.5-page discussion does not meet that standard here. Accordingly, the Motion should be DENIED in its entirety.9 III.
PETITIONERS REQUEST TO RELEASE THE REDACTED INFORMATION SHOULD BE DENIED The Commissions rules of practice provide that the proponent of a motion has the burden of proof.10 Accordingly, because Petitioners are seeking an order to release CEII, the burden falls on them to demonstrate that such a result is required by law. Petitioners theory is that the NRC has waived its right to withhold the Reacted Information under the official acknowledgement doctrine. Courts use a three-pronged test to evaluate waiver claims under that doctrine. As explained below, Petitioners have not demonstrated satisfaction of that test and the test is objectively unmet here. Accordingly, the Board should DENY this request.
A.
The Fitzgibbon Test Is Used to Evaluate Waiver Claims under the Official Acknowledgment Doctrine The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has established a general rule that, when information has been officially acknowledged, its 9
Notably, Petitioners ability to fully participate in this proceeding is not, in any way, adversely affected without public disclosure of these documents via procedures and protections already established by the Board.
10 10 C.F.R. § 2.325.
4 disclosure may be compelled even over an agencys otherwise-valid exemption claim under FOIA. The D.C. Circuit uses a three-part test (referred to as the Fitzgibbon test) to determine whether information has been officially acknowledged. The information requested must:
- 1. be as specific as the information previously released;
- 2. match the information previously disclosed; and
- 3. already have been made public through an official and documented disclosure.11 Notably, this test extends beyond a simple determination of whether the information was previously in the public domain. Pursuant to the third prong, the circumstances surrounding how that information became public are material to any evaluation under the Fitzgibbon test.
B.
The Fitzgibbon Test Is Quite Strict The D.C. Circuit has unequivocally recognized that the fact that information resides in the public domain does not eliminate the possibility that further disclosures can cause harm.12 As such, the Fitzgibbon test is quite strict.13 Courts insist on exactitude when evaluating waiver claims under the official acknowledgement doctrine, particularly where the information sought to be withheld pertains to a vital interest such as public safety or national security.14 Here, the Redacted Information undoubtedly pertains to a vital interest. Concerns for life safety and national security were central to the development of the CEII classification.15 The statutory directive from Congress to withhold CEII was intended, among other things, to prevent 11 Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990).
12 Id. (emphasis added).
13 ACLU v. DOJ, 640 F. Appx 9, 11 (D.C. Cir. 2016).
14 Wolf v. CIA, 473 F.3d 370, 378, (D.C. Cir. 2007).
15 See, e.g., 16 U.S.C. § 824o-1(a)(2) (CEII includes information about assets that if incapacitated or destroyed would negatively affect national security, economic security, public health or safety, or any combination thereof).
5 individuals planning an attack against the United States from receiving a roadmap for doing so.16 Accordingly, controlling law commands a stringent application of the Fitzgibbon test against anyoneincluding Petitionersaffirmatively seeking to strip Congressionally-mandated protections from such information. In other words, the Board must insist that the Petitioners turn square corners to satisfy their affirmative burden here.
C.
The Motion Fails to Carry Petitioners Burden to Demonstrate Satisfaction of the Third Prong of the Fitzgibbon Test For purposes of the instant briefing, the Board essentially directed that the first two prongs of the Fitzgibbon test be presumed satisfied here.17 Thus, to carry their burden, Petitioners were required to demonstrate satisfaction of the third prong. They did not.
Petitioners briefly argue that the Redacted Information satisfies the third prong (i.e., that it was released pursuant to official and documented disclosure) because it was posted on public ADAMS, disclosed pursuant to a FOIA request, and/or released pursuant to a court settlement.18 However, Petitioners do not expand upon the legal criteria for an official and documented disclosure. And they offer no explanation of why the cited circumstances somehow satisfy those unacknowledged legal criteria. On its face, the Motion fails to connect the dots to provide the required demonstration. That pleading failure is amplified by the quite strict nature of the applicable legal standard. For these reasons, Petitioners conclusory claims fall far short of carrying their burden to demonstrate satisfaction of the third prong of the Fitzgibbon test.
16 See, e.g., 18 C.F.R. § 388.113(c)(2) (CEII could be useful to a person in planning an attack on critical infrastructure).
17 Dec. 2, 2024 Order at 19-20 n.20.
18 Motion at 6-7.
6 D.
The Third Prong of the Fitzgibbon Test Is Objectively Unsatisfied Here The D.C. Circuit has long held that the third prong of the Fitzgibbon testwhich requires an official and documented disclosurecannot be satisfied by an inadvertent or mistaken release of information.19 If a disclosure is the result of agency carelessness or mistake, and the agency took prompt action to remedy the situation upon its discovery, courts generally find that such a disclosure does not operate as a waiver.20 As explained further below, the Redacted Information first entered the public domain before CEII was established, and before a legal basis for withholding existed. Thus, no informed or reasoned decision was ever made by the NRC to disclose any CEII. And because the NRC acted promptly to protect the Redacted Information after CEII withholding requirements were enacted, and after it was discovered to be in the public domain, the agency has not waived its right to withhold the Redacted Information.
The factual chronology is relevant here. Petitioners claim that the Redacted Information at issue in the Motion was made publicly available ten to fifteen years ago,21 i.e., between approximately 2009 and 2014. In contrast, CEII was established via the Fixing Americas Surface Transportation (FAST) Act on December 4, 2015.22 Moreover, the FAST Act imposed no direct requirements upon, and granted no designation authority to, the NRC related to CEII. Rather, Congress charged the Federal Energy Regulatory Commission (FERC) and the Department of Energy (DOE) with the responsibility for CEII designation.23 Those agencies subsequently promulgated corresponding CEII regulations.24 Then, in 2018, FERC and 19 See, e.g., Mobley v. CIA, 806 F.3d 568, 584 (D.C. Cir. 2015) (waiver argument fails on the third prong if release is pursuant to agency mistake).
20 See, e.g., id.
21 Motion at 4.
22 Pub. L. 114-94, div. F, §61003(a), Dec. 4, 2015, 129 Stat. 1773.
23 16 U.S.C. § 824o-1(d)(3).
24 See 18 C.F.R. § 388.113; 10 C.F.R. § 1004.13.
7 the NRC signed a Memorandum of Understanding (MOU) regarding the treatment of CEII.25 That was the first formal vehicle establishing a mechanism for the designation of NRC-held information as CEII. The Redacted Information was first designated (by FERC, via the MOU process) as CEII in late 2024.26 This timing is important because the waiver rule is not applied mechanically; it requires careful analysis of the circumstances surrounding disclosure.27 As the Supreme Court has explained, [w]aiver is the intentional relinquishment or abandonment of a known right and cannot be the product of inadvertent error.28 Here, the Motion makes no claim that the NRC has ever reviewed the Redacted Information, determined that it was not CEII, and then released it to the public. That is the normal course of an official and documented disclosure. But that is not what happened here. Under these circumstances, a reasonable fact-finder could not deem the NRC to have intentionally (but also unknowingly) abandoned its future right to withhold CEII by releasing information before that right, or CEII, even existed.
Given the circumstances, it is not surprising that the NRC did not perform (after the creation of CEII and implementation of the MOU) an immediate proactive review of more than 2 million full text documents29including every document previously released under the FOIA process across the entire history of the agencyto identify potential CEII, seek a formal CEII determination from FERC, and protect the designated records accordingly.30 But even if one 25 https://www.nrc.gov/docs/ML1816/ML18164A182.pdf 26 See NRC Staff Reply to Petitioners September 30, 2024, Response at 3 (Oct. 7, 2024).
27 See Mobil Oil Corp. v. United States Environmental Protection Agency, 879 F.2d 698, 700 (9th Cir.
1989) (noting that [t]he inquiry into whether a specific disclosure constitutes waiver is fact specific and requires consideration of the circumstances of the prior disclosure).
28 Wood v. Milyard, 566 U.S. 463 (2012) (discussing waiver in a different context).
29 See Motion at 6 (citing https://www.nrc.gov/reading-rm/adams.html).
30 To be sure, such a review would be a Herculean task.
8 could characterize that as careless, the result remains the same here because information in the public domain as a result of carelessness or mistake is not an official and documented disclosure. Either way, the Redacted Information is legally incapable of satisfying the third prong of the Fitzgibbon test.
Furthermore, courts have consistently held that, in cases of inadvertent disclosure, waiver occurs only when the holder has failed to take reasonable steps to reclaim the protected material.31 Because the NRC took such steps here, no waiver has occurred. The Redacted Information was first identified as potential CEII during the course of this proceeding. More specifically, the NRC Staff self-identified this possibility at the oral argument held on June 24, 2024.32 The NRC Staff promptly reviewed the transcript and, within 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />, requested its withholding from the public domain.33 The NRC Staff also performed a review to identify other documents containing potential CEII; removed such documents from the public domain; and engaged with FERC under the MOU process to determine whether those documents contained CEII. In sum, as soon as the NRC Staff became aware that CEII may have been available in the public domain, it took prompt and reasonable remedial steps. Accordingly, no waiverand no official and documented disclosurehas occurred.
Because no waiver has occurred, and because Petitioners have failed to carry their burden to demonstrate satisfaction of the third prong of the quite strict Fitzgibbon test, the Board should DENY Petitioners request to release the Redacted Information.
31 See, e.g., SEC v. Lavin, 111 F.3d 921, 930 (D.C. Cir. 1997).
32 See, e.g., Licensing Board Memorandum and Order (Regarding Status of Initial Prehearing Conference Transcript) at 1 (citing Tr. at 86) (June 28, 2024) (unpublished).
33 See, e.g., id. at 1-2.
9 IV.
PETITIONERS OTHER REQUESTS FOR RELIEF SHOULD BE DENIED ON MULTIPLE GROUNDS The Motion also includes two additional relief requests not authorized by the Dec. 2, 2024 Order. Both should be denied. First, Petitioners ask the Board to broaden the scope of documents, as defined in the Dec. 2, 2024 Order, that are subject to the instant challenge opportunity to include countless documents that have never been tendered on the adjudicatory docket. This request effectively asks the Board to reconsider its Dec. 2, 2024 Order. As such, it should be summarily rejected because (a) it amounts to an untimely petition for reconsideration; and (b) it fails to address or satisfy the compelling circumstance standard for reconsideration.34 Even if viewed as a general motion, this request still must be denied because: (a) it is untimely; and (b) Petitioners failed to consult the other parties before seeking this relief.35 Substantively speaking, Petitioners provide no basis for the dubious proposition that a licensing board has authority to commandeer the entire NRC FOIA process as to non-adjudicatory documents.
Second, Petitioners present a vague demand for a prospective ruling promising that the Board will not honor future redactions of information that matches specific information that was previously posted on Public ADAMS. Once again, this request must be denied because:
(a) it is untimely; and (b) Petitioners failed to consult the other parties before seeking this relief.36 As a practical matter, any such prospective policy would be contrary to settled law.37 34 See 10 C.F.R. § 2.345. The deadline for seeking reconsideration of the Boards Dec. 2, 2024 Order was December 12, 2024, whereas Petitioners neither sought nor obtained any extension of that deadline.
35 See 10 C.F.R. § 2.323. The deadline for motions arising from the Boards Dec. 2, 2024 Order was December 12, 2024. Although Petitioners sought and received an extension to file the Board-sanctioned motion seeking release of the Redacted Information, Petitioners neither sought nor obtained an extension for any other relief request.
36 See supra note 34.
37 See supra Section III.D. See also Response by [Petitioners] to Joint Motion for Protective Order at 10-11 &
n.12 (July 29, 2024) (acknowledging the required legal analysis for waiver is complex and turns on the nature and circumstances of disclosure).
10 V.
CONCLUSION As explained above, the Board should DENY the Motion in its entirety. However, if the Board is inclined to order disclosure of the Redacted Information, it should consider conferring with the Commission before doing so given the public safety significance of such a decision.
Respectfully submitted, Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 Ryan.Lighty@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)
PAUL M. BESSETTE, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5796 Paul.Bessette@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)
TRACEY M. LEROY, Esq.
DUKE ENERGY CORPORATION 4720 Piedmont Row Drive Charlotte, North Carolina 28210 (704) 382-8317 Tracey.LeRoy@duke-energy.com Counsel for Duke Energy Carolinas, LLC Dated in Washington, DC this 23rd day of December, 2024
DB1/ 153924163.3 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 December 23, 2024 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Duke Energy Carolinas LLCs Answer Opposing Petitioners Motion for Document Disclosures was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Duke Energy Carolinas, LLC