ML25017A345

Memorandum and Order (Denying Petitioners Document Disclosure Motion and Referring Ruling to the Commission)

ML25017A345
Person / Time
Site:	Oconee
Issue date:	01/17/2025
From:	Sue Abreu, Bollwerk G, Miller A Atomic Safety and Licensing Board Panel
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 57259, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2, ASLBP 24-985-03-SLR-BD01
Download: ML25017A345 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

G. Paul Bollwerk, III, Chair Dr. Sue H. Abreu Dr. Arielle J. Miller In the Matter of DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)

Docket Nos. 50-269-SLR-2, 50-270-SLR-2, and 50-287-SLR-2 ASLBP No. 24-985-03-SLR-BD01 January 17, 2025 MEMORANDUM AND ORDER (Denying Petitioners Document Disclosure Motion and Referring Ruling to the Commission)

Before the Licensing Board in this 10 C.F.R. Part 52 proceeding for the subsequent renewal of 10 C.F.R. Part 50 operating licenses for Oconee Nuclear Station, Units 1, 2, and 3 (ONS) is a December 16, 2024 motion by petitioners Beyond Nuclear, Inc., and the Sierra Club, Inc., (collectively Petitioners) requesting that the Board order the disclosure of redacted and other nonpublic information.1 Both the Nuclear Regulatory Commission (NRC) Staff and applicant Duke Energy Carolinas, LLC (Duke) assert that Petitioners motion should be denied.2 For the reasons set forth below, we deny Petitioners motion. Additionally, as we explain below, because our decision raises significant and novel legal or policy issues, in accordance 1 See Motion by [Petitioners] for Document Disclosures Required by the Official Acknowledgment Doctrine (Dec. 16, 2024) at 2 [hereinafter Petitioners Document Disclosure Motion].

2 See NRC Staff Response to Petitioners Motion for Document Disclosure (Dec. 23, 2024) at 9 [hereinafter Staff Answer]; [Dukes] Answer Opposing Petitioners Motion for Document Disclosures (Dec. 23, 2024) at 1 [hereinafter Duke Answer].

with our authority under 10 C.F.R. §§ 2.319(l), 2.323(f)(1), we refer our ruling to the Commission for its consideration.

I. BACKGROUND Petitioners pending document disclosure motion was submitted against the backdrop of their April 29, 2024 hearing request (as corrected on May 1, 2024) challenging aspects of the NRC Staffs February 2024 draft supplemental environmental impact statement (DSSEIS) associated with Dukes June 2021 subsequent license renewal (SLR) application for the ONS facility. In a separate ruling today concerning the viability of Petitioners hearing petition we set forth the general background associated with this proceeding,3 which we will not repeat here.

Instead, we provide a summary of the events regarding the withdrawal from the public docket and subsequent redaction of the transcript of a June 24, 2024 initial prehearing conference and four of Petitioners filings that culminated in Petitioners pending disclosure motion.4 In their hearing request, Petitioners noted the recent removal from the agencys Agencywide Documents Access and Management System (ADAMS) of a previously publicly 3 See LBP-25-01, 101 NRC __, __-__ (slip op. at 3-9) (Jan. 17, 2025). Because of the need to provide that decision to the NRC Staff for a nonpublic review to determine whether it contains Sensitive Unclassified Non-Safeguards Information (SUNSI), that decisions public availability will be delayed. See id. at __-__ (slip op. at 56-59). Nonetheless, the Board today is also making publicly available a synopsis of the significant legal and procedural holdings in that decision. See Licensing Board Memorandum (Notice Regarding Issuance of Decision on Intervention Petition) (Jan. 17, 2025) (unpublished) [hereinafter Board Notice of Decision Issuance].

4 As we did in our decision on Petitioners hearing request, we reference publicly available redacted versions of the June 24, 2024 initial prehearing conference transcript and Petitioners four filings that were subject to the Staffs SUNSI review. See LBP-25-01, 101 NRC at __ n.2 (slip op. at 2 n.2) (providing citations to the redacted versions of Petitioners April 29, 2024 original and May 1, 2024 corrected hearing petitions and the May 15, 2024 corrected report of Jeffery T. Mitman); id. at __ n.17 (slip op. at 8 n.17) (providing citation for Petitioners June 7, 2024 reply pleading); id. at __ n.20 (slip op. at 9 n.20) (providing citation for June 24, 2024 initial prehearing conference transcript).

available NRC Staff 2011 safety evaluation report.5 They indicated as well that they would rely on quotations from and paraphrasing of that 2011 report as presented in documents that remained publicly available, such as the 2022 licensing board decision regarding the ONS SLR application.6 Mention of the apparent withdrawal from ADAMS of previously public information regarding the ONS facility was also made at the Boards June 24, 2024 initial prehearing conference with the participants, with the Board suggesting to the NRC Staff that it advise the Board promptly whether any portion of the transcript of that meeting would require redaction.7 The Staff did so in a June 27, 2024 e-mail, which resulted in a June 28, 2024 Board order indicating that the transcript was being removed from the public record of this proceeding during the Staff review process and requesting that the participants treat the transcript as a nonpublic document pending the entry of a protective order and the associated submission of affidavits of nondisclosure.8 In a July 8, 2024 issuance, the Board asked that by July 24, 2024, the participants provide a joint proposed protective order and proposed affidavit of nondisclosure for Board consideration and approval.9 On that date, joined by Duke, the NRC Staff (1) submitted a proposed protective order and nondisclosure affidavit and asked the Board to enter those documents to govern the management and dissemination of possible nonpublic SUNSI, specifically Critical Energy/Electric Infrastructure Information (CEII), potentially associated with 5 See Hearing Request and Petition to Intervene by [Petitioners] (Apr. 29, 2024; corrected May 1, 2024) at 7 n.8 (redacted version) [hereinafter Redacted Corrected Hearing Request].

6 See id. (citing Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), LBP-22-1, 95 NRC 49, 72-73, taking sua sponte review, dismissing contentions without prejudice, and terminating proceeding, CLI-22-3, 95 NRC 40, 43 (2022)).

7 See Tr. at 63, 86 (redacted version) [hereinafter Redacted Tr.].

8 See Licensing Board Memorandum and Order (Regarding Status of Initial Prehearing Conference Transcript) (June 28, 2024) at 13 (unpublished).

9 See Licensing Board Memorandum and Order (Regarding NRC Staff Review of Initial Prehearing Conference Transcript) (July 8, 2024) at 2 (unpublished).

this proceeding; and (2) indicated that Petitioners opposed the motion.10 The Board then conducted a July 30, 2024 prehearing conference with the participants to discuss the Staffs motion and the status of its SUNSI/CEII review efforts. See Tr. at 150-246. And ten days later, the Staff advised the Licensing Board in a then-in camera filing that, besides the June 24, 2024 initial prehearing conference transcript, a Federal Energy Regulatory Commission (FERC)-assisted review of four of Petitioners filings had determined they contained SUNSI/CEII that required restricted access subject to the terms of a protective order.11 On August 19, 2024, the Board granted the request of the Staff and Duke and entered Protective Order A covering possible SUNSI/CEII associated with this proceeding.12 In that issuance, noting that the protective order proposed by the NRC Staff and Duke did not include a provision allowing Petitioners to contest the status of any information identified by the Staff as nonpublic SUNSI/CEII, the Board included a paragraph that would allow such a challenge at an appropriate time. See Board Order Granting Protective Order at 9-13; see also Protective Order A ¶ 11.

Thereafter, the NRC Staff informed the Board in two then-nonpublic filings that, based on a FERC-assisted SUNSI/CEII review of the June 24, 2024 initial prehearing conference 10 See Joint Motion for Proposed Protective Order Governing Disclosure of [SUNSI] and Non-Disclosure Declaration (July 24, 2024) at 1, 3 [hereinafter Protective Order Motion].

11 See Licensing Board Memorandum (Submitting Documents for Inclusion in the Docket as Nonpublic Information) (Aug. 28, 2024) attach. A, at 1-2 (NRC Staff August 9, 2024 In Camera Update Regarding Non-Public Information) (unpublished); see also supra note 4 and accompanying text.

12 See Licensing Board Memorandum and Order (Granting Motion to Enter Protective Order) (Aug. 19, 2024) at 2 (unpublished) [hereinafter Board Order Granting Protective Order Motion]; see also Licensing Board Memorandum and Order (Protective Order A Governing Specific [SUNSI]) (Aug. 19, 2024) (unpublished) [hereinafter Protective Order A]. In an August 26, 2024 issuance regarding the Boards protective order, to simplify and clarify the marking process associated with this protective order, the Board amended the original protective order to designate the order as Protective Order A. See Licensing Board Memorandum and Order (Regarding Nondisclosure Declaration Filings, Reconsideration/Clarification Motions, Nonpublic Document Redaction, and Marking Nonpublic Documents) (Aug. 26, 2024) at 5-6 (unpublished).

transcript and Petitioners four filings, redactions had been made to protect information in those documents, which the Staff provided to the Board to make available on the public docket.13 In a December 2, 2024 issuance, besides ruling on requests by Duke and Petitioners to reconsider/clarify aspects of its August 19, 2024 directive entering Protective Order A, including denying Dukes request to rescind the Protective Order A provision allowing challenges to SUNSI/CEII designations, the Board placed those redacted documents into the public record of this proceeding.14 Additionally, the Board indicated that, even though Petitioners declined to execute any nondisclosure declarations and so were not parties to Protective Order A and its provision allowing challenges to the nonpublic status of information covered by the protective order, the Board nevertheless would permit Petitioners to file a motion seeking public disclosure of the redacted information. See Board Decision Regarding Public Release of Redacted Documents at 17-18. The Board also determined, however, that Petitioners refusal to execute nondisclosure declarations precluded the exchange of nonpublic pleadings arguably necessary to litigate the question of the CEII status of any of the particular items of redacted information in the June 24, 2024 transcript and Petitioners four filings. See id. at 18-19. Consequently, the Board directed that any request by Petitioners for disclosure of the redacted information must be limited to the publicly litigable issue, previously framed by Petitioners, of

[w]hether, under the doctrine of official acknowledgment, forbidding retraction of information that has been put on the public record, any of the material in the June 24, 2024 initial prehearing conference transcript or the Petitioners four filings derived from a previously publicly available agency record that now has been 13 See NRC Staff Motion Requesting That the Licensing Board Accept the Redacted Documents Identified as Non-Public Attachments A-D to This Motion for Inclusion on the Public Docket (Nov. 21, 2024) at 1-2; NRC Staff Motion Regarding the Redacted June 24, 2024, Initial Prehearing Conference Transcript (Sept. 10, 2024) at 1-2.

14 See Licensing Board Memorandum and Order (Rulings Regarding Protective Order Reconsideration/Clarification Motions and Submissions Concerning Public Release of Redacted Versions of June 24, 2024 Initial Prehearing Conference Transcript, Four Filings by Petitioners, and Ex Parte/Separation of Functions Communications; Establishing Briefing Schedule for Challenging Withholding of Redacted Information) (Dec. 2, 2024) at 3-15 (unpublished)

[hereinafter Board Decision Regarding Public Release of Redacted Documents].

redacted as SUNSI nonetheless is ineligible for subsequent withholding from the public record of this proceeding.15 In their December 16, 2024 motion,16 Petitioners assert that (1) all the redacted information in the five documents satisfies the criteria for public disclosure under the Freedom of Information Acts (FOIA) official acknowledgment doctrine; and (2) the Board should expand its review to include the applicability of the official acknowledgment doctrine to all the source documents referenced by Petitioners in their 2024 hearing request. See Petitioners Document Disclosure Motion at 2. In answers filed December 23, 2024, both the NRC Staff and Duke opposed Petitioners disclosure request, with the Staff asserting that the Board lacks jurisdiction/authority to consider such a request and Duke claiming that Petitioners have failed to carry their burden to establish the applicability of the official acknowledgment doctrine to the redacted information in the five documents. See Staff Answer at 2-3; Duke Answer at 2-3.

15 Id. at 19 (footnote omitted) (quoting NRC Staff Motion Requesting That the Licensing Board Accept Redacted Documents Identified in Appendix 1 to Licensing Board August 19, 2024, Protective Order for Inclusion on the Public Docket (Sept. 25. 2024), attach. 1, at Portable Document Format (PDF) p. 7 (E-mail from Diane Curran, Petitioners Counsel, to Mary Frances Woods, NRC Staff Counsel (Sept. 24, 2024 11:48 EDT)).

16 In a December 9, 2024 motion, Petitioners made an unopposed request for a three calendar-day filing extension for their disclosure motion. See Unopposed Motion by

[Petitioners] for Extension of Time to Submit Motion Challenging Withholding of Redacted Information (Dec. 9, 2024) at 1. In that motion, Petitioners also supported a Staff proposed alternative schedule that would have allowed them until December 23, 2024, to file their motion, with Staff and Duke answers due on or before January 6, 2024. See id. In a December 11, 2024 response to a Board request for Dukes position on the alternative schedule, Duke opposed that proposal. See Letter from Ryan K. Lighty, Duke Counsel, to Licensing Board at 2 (Dec. 11, 2024); see also Licensing Board Memorandum and Order (Providing Opportunity for Applicant to Submit Its Views Regarding Alternative Schedule Proposed by Petitioners Time Extension Motion) (Dec. 10, 2024) at 2 (unpublished). In an issuance that same day, the Board granted Petitioners unopposed extension request and afforded the Staff and Duke a similar extended period within which to submit their answers to Petitioners disclosure motion. See Licensing Board Memorandum and Order (Granting Petitioners Unopposed Time Extension Motion) (Dec. 11, 2024) at 2-3 (unpublished).

II. RULING ON PETITIONERS DOCUMENT DISCLOSURE MOTION A.

Official Acknowledgment Doctrine In referencing the official acknowledgment doctrine as a basis for disclosure of what the NRC Staff has categorized as nonpublic SUNSI/CEII, Petitioners rely on an established line of FOIA cases dealing with instances, principally in the national security realm, in which a requester seeks access to withheld agency records by asserting that any application of an otherwise valid FOIA exemption claim has been waived by an official acknowledgment of that information.17 This judicial doctrine stipulates that when an agency has officially acknowledged otherwise exempt information through prior disclosure, the agency has waived its right to claim an exemption with respect to that information. ACLU, 710 F.3d at 426. And for information to be officially acknowledged, (1) the information requested must be as specific 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. Fitzgibbon, 911 F.2d at 765.

It also has been recognized that the party invoking the official acknowledgment doctrine bears the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld. Wolf, 473 F.3d at 378 (quoting Afshar, 702 F.2d at 1130). And this test is quite strict,18 in that the specific information sought... must already be in the public domain by official disclosure. Id. Moreover, pointing to the disclosure of similar information is not sufficient because the fact that information exists in some form in the public domain does not necessarily mean that official disclosure will not cause harm cognizable under 17 See, e.g., Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015); ACLU v. CIA, 710 F.3d 422, 426-27 (D.C. Cir. 2013); Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007);

Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990); Afshar v. Dept of State, 702 F.2d 1125, 1129-30 (D.C. Cir. 1983).

18 ACLU v. U.S. Dept of Justice, 640 Fed. Appx 9, 11 (D.C. Cir. 2016).

a FOIA exemption. Id. (citing Fitzgibbon, 911 F.2d at 766). Consequently, in many cases where an agency waiver of an otherwise valid FOIA exemption was found, the inquiry turns on the match between the information requested and the content of the prior disclosure. Id.

B.

Participants Positions

1.

Petitioners Arguments Seeking public disclosure of the information redacted by NRC Staff from the June 24, 2024 initial prehearing conference transcript and Petitioners four filings, in their motion Petitioners argue that under the official acknowledgement doctrine even properly designated CEII is subject to mandatory disclosure, since the NRC officially acknowledged it. Petitioners Document Disclosure Motion at 5. Citing the three-part Fitzgibbon assessment quoted above, see supra section II.A, Petitioners assert that a declaration and associated table of redactions prepared by their expert Jeffrey T. Mitman and included as attachment A to their motion establishes that almost every specific piece of information that has been redacted from the

[f]ive [d]ocuments matches information in a source document that the NRC officially released by posting it on ADAMS in unredacted form.19 Petitioners argue that posting documents on ADAMS is a formal procedural step by which the NRC acknowledges the public status of the document and therefore qualifies as official and documented disclosure. Id. at 6, 7.

According to Petitioners, additionally evidencing the official and documented disclosure status of several of the redacted items is their inclusion in documents released in response to a FOIA request and as part of a court settlement, as outlined in the attached Mitman declaration. See id. at 7.

Petitioners also assert that the Board should expand the scope of its official acknowledgment review beyond the June 24, 2024 transcript and Petitioners four filings to 19 Id. at 6 (referencing Declaration of Jeffrey T. Mitman in Support of Motion by

[Petitioners] for Document Disclosures Required by the Public Acknowledgement Doctrine (Dec. 16, 2024) [hereinafter Mitman Declaration]).

include all the source documents referenced in their 2024 hearing request. See id. at 8.

Petitioners maintain this is necessary because the participants arguments depend on the ONS safety and environmental record, which makes it reasonable to expect the Board will rely on its own reading of the participants cited source documents. See id. If, in turn, these are not publicly available to Petitioners in preparing for this proceedings next stage (including preparing briefs and testimony or an appeal or motion for reconsideration), Petitioners assert this will both adversely affect [their] ability to participate in this proceeding in a fair and meaningful way and hamper the Boards ability to consider fully the participants submissions regarding the official acknowledgment doctrines applicability. Id.

Lastly, claiming that most of the exact information redacted by the Staff from Mr.

Mitmans 2024 report in support of their hearing petition remains accessible in ADAMS, Petitioners maintain that this informations wide public availability raises serious doubts about the Staffs ability to remove such information from the public record. See id. at 8-9. This, according to Petitioners, poses a serious fairness concern regarding the Staffs ongoing process of withdrawing and redacting previously disclosed documents. See id. at 9. Specifically, the Petitioners argue this sets up a hamster wheel that will exhaust Petitioners with endless rounds of procedural obligations as they try to satisfy the official acknowledgment doctrine. Id.

Petitioners thus argue that 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. Id.

2.

NRC Staff Arguments The NRC Staff argues in its answer that the Board has neither the authority nor the discretion to adjudicate any FOIA or CEII claims or disputes, both of which are beyond the scope of this proceeding. NRC Staff Answer at 2. Rather, according to the Staff, Petitioners challenge to redactions of information obtained through FOIA must be lodged via NRCs FOIA process and in U.S. District Court. Id. The Staff further asserts that while Petitioners may

challenge CEII withholding determinations in that context, the Board lacks the jurisdiction or authority to adjudicate such challenges because the 2015 Fixing Americas Surface Transportation (FAST) Act places authority for CEII determinations with FERC rather than the NRC Staff. Id. (citing 16 U.S.C. § 824o-1(d)(2)(A), (3)). The Staff maintains that the Board has access to the redacted information in the transcript and Petitioners four filings and is therefore not impeded in its ability to issue its contention admissibility decision regarding such a narrowly scoped hearing opportunity. See id. at 2-3. According to the Staff, the Boards lack of authority and discretion to determine FOIA and CEII disputes means it must deny Petitioners motion.

See id. at 3.

Additionally, citing the provisions of the Boards December 2, 2024 issuance allowing for a limited challenge to the SUNSI/CEII-based redactions to the transcript and Petitioners four filings based on the official acknowledgment doctrine, the Staff argues that this proceeding is not the appropriate venue to determine the applicability of that doctrine. See id. at 3. And the Staffs rationale for this argument is that the official acknowledgment doctrine is applicable only to a FOIA proceeding, meaning that under 10 C.F.R. Part 9 a challenge to an initial NRC withholding determination can only be brought within the agency before the Executive Director for Operations, the Commissions Secretary, or the NRCs Inspector General and, thereafter, before a federal district court. See id. As this is not a FOIA proceeding, the Staff contends it is not an appropriate venue to litigate the official acknowledgment doctrine and so it will not engage with Petitioners arguments about the applicability of the doctrine to the transcript and the four filings. See id. at 3-4.

The Staff also declares inappropriate Petitioners attempt to have the Board broaden the applicability of the official acknowledgment doctrine by ruling prospectively that future information redactions in this case will not be honored. See id. at 4. The Staff maintains that if Petitioners request is granted, the Board would risk undermining FERCs statutory authority to designate CEII, and could imped[e] the NRCs ability to carry out its statutory duties and

responsibilities under the FAST Act and... the Memorandum of Understanding (MOU) between the NRC and FERC, thereby hindering the NRCs statutory obligation to take all reasonable measures to protect such information from public disclosure. Id. The Staff notes that consistent with the NRC/FERC MOU and agency policies on safeguarding sensitive information it will continue to review agency documents for potential CEII and so may have cause to withhold additional documents that are currently publicly available. See id. As such, the Staff argues that a preemptive Board determination withholding agency documents or sensitive information would improperly exceed the Boards authority. See id. at 4-5.

Returning to the matter of FERCs authority in making CEII determinations, the Staff asserts that because protection of CEII is critical to ensuring public safety and security, the 2015 FAST Act provisions require that information that is the subject of a FERC CEII designation is exempt from mandatory FOIA disclosure, with neither the NRC nor the Board having authority or discretion to release the information. See id. at 5-6 (citing 16 U.S.C. § 824o-1(a)(2),

(d)(1)(A)-(B), 18 C.F.R. § 388.13(c)(1)). Further, the Staff asserts that the Boards references in its December 2, 2024 ruling rejecting Dukes reconsideration objection to Protective Order As SUNSI/CEII challenge provision to other instances in which licensing boards in contested proceedings adjudicated whether information designated as nonpublic can be appropriately withheld from public disclosure are not relevant here because this case does not involve proprietary information or a discovery dispute in which presiding officers often have some leeway. See id. at 6-7 & n.25.

Also contested by the Staff is the Boards discussion in its August 19, 2024 order entering Protective Order A that because the Staff under the terms of the NRC/FERC MOU retains discretion over whether or not to invoke FOIA exemption 3 to protect CEII, the Board has the authority to make a determination about the validity of a CEII designation. See id. at 7 (citing Board Order Granting Protective Order Motion at 13). According to the Staff, the language of FERC regulations and the agencys MOU with FERC does not give the Staff that

discretion regarding CEII designations and subsequent withholding determinations.20 Rather, CEII designations based on NRC/FERC consultations regarding Staff-identified potential CEII are made exclusively by FERC with the Staff then responsible for taking all steps to protect such information. See id. at 7-8.

The Staff adds that it disagrees with the Boards interpretation in its August 19 order of the NRC/FERC MOUs language that the decision to invoke FOIA exemption 3 remains with NRC at all times. 21 The Staff now argues that the Boards statement there that this language allows the Staff to retain some discretion over whether to invoke FOIA exemption 3 to protect CEII is incorrect. Id. at 8. According to the Staff, because FERC cannot withhold NRC documents on behalf of the agency, that provision only indicates that the NRC accepts and agrees that it is the NRCs responsibility, not FERCs, to withhold CEII once designated consistent with the FAST Act. Id.

Finally, the NRC Staff indicates that Petitioners assertion that absent a Board directive making CEII publicly available they are unable to fully and meaningfully participate in this proceeding is baseless and without merit given that all Petitioners need do to access all nonpublic information in this proceeding is sign [onto] Protective Order A and accept the procedures the Board put in place to protect CEII. Id. at 8-9.

3.

Duke Arguments Duke in its answer claims that Petitioners motion must fail because Petitioners have not carried their pleading burden consistent with 10 C.F.R. § 2.325. See Duke Answer at 3.

Referencing the three-part Fitzgibbon test outlined in section II.A above, Duke asserts judicial insistence on exactitude in evaluating an official acknowledgment claim becomes of particular 20 Staff Answer at 7 (citing [MOU] between [NRC] and [FERC] Regarding the Treatment of [CEII] (June 2018) (ADAMS Accession No. ML18164A182) [hereinafter NRC/FERC MOU]).

21 Id. at 8 (citing Board Order Granting Protective Order Motion at 12 (quoting NRC/FERC MOU ¶ 2.C)).

moment when the withheld information pertains to a vital interest such as public safety or national security. Id. at 4 (quoting Wolf, 473 F.3d at 378). And according to Duke, the redacted information in this instance undoubtedly pertains to a vital interest given that concerns for public safety and natural security, including denying an informational roadmap to any individual planning an attack on the United States, are central to CEII classification development. See id.

at 4-5 (citing 16 U.S.C. § 824o-1(a)(2); 18 C.F.R. § 388.113(c)(2)). As such, Petitioners must turn square corners to satisfy their affirmative burden to obtain any of the redacted information at issue. Id. at 5.

Asserting that, as the Board framed the official acknowledgement doctrine inquiry, the first two Fitzgibbon elements can be presumed to be satisfied, Duke focuses on the tests third prong, i.e., that the redacted information was released pursuant to official and documented disclosure. See id. Duke maintains that Petitioners do not expand upon or offer any explanation how posting the information on public ADAMS pursuant to a FOIA request or releasing it because of a court settlement satisfy the legal criteria for an official and documented disclosure. See id. As such, Duke asserts that Petitioners conclusory claims fall short of carrying their burden to demonstrate satisfaction of the third prong of the Fitzgibbon test. Id.

Also relative to the Fitzgibbon tests third prong, Duke maintains that the official and documented disclosure requirement cannot be satisfied by an inadvertent or mistaken information release. See id. at 6 (citing Mobley, 806 F.3d at 584). According to Duke, for disclosure resulting from agency carelessness or mistake, prompt post-discovery agency action to remedy the situation has generally led courts to conclude that such a disclosure does not constitute a waiver of an agencys otherwise valid FOIA exemption claim. See id. Duke asserts that in this instance the now-redacted information first entered the public domain before the current CEII regime was established and a legal basis for withholding existed, thereby precluding the agency from making an informed or reasoned decision about disclosure. See id.

Additionally, Duke claims that after CEII withholding requirements were enacted and the agency discovered the now-redacted information in the public domain, it acted promptly to protect the information such that the agency has not waived its withholding rights. See id.

As the factual basis for this nonwaiver argument, Duke notes that while passage of the FAST Act in December 2015 first established the current CEII construct, FERC first promulgated implementing regulations for the CEII review process in 2016.22 Further, according to Duke, the NRC/FERC MOU regarding NRC treatment of CEII was not signed until 2018. See id. at 6-7; see also supra note 20. Yet, Duke observes, the now-redacted information was not identified by FERC as CEII via the MOU process until late 2024. See Duke Answer at 7. Duke contends that this timing is important because the waiver rule is not to be applied mechanically without a careful analysis of the circumstances surrounding the disclosure.23 Further, Duke characterizes waiver as the intentional relinquishment or abandonment of a known right that cannot be the product of inadvertent error.24 Because Petitioners motion fails to claim that the NRC reviewed the redacted information, determined it not to be CEII, and then released it, which, Duke maintains, would be the normal course for an official and documented disclosure, the agency cannot be deemed to have intentionally (but also unknowingly) abandoned its future right to withhold CEII before that right, or CEII, even existed.

Id.

Duke also maintains that the NRCs post-CEII creation and MOU-implementation approach to CEII was not careless so as to preclude future CEII redaction. See id. at 8.

22 See Duke Answer at 6 (citing 18 C.F.R. § 388.113, promulgated in Regulations Implementing FAST Act Section 61003Critical 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, 93,749 (Dec. 21, 2016)).

23 See id. at 7 (citing Mobil Oil Corp. v. EPA, 879 F.2d 698, 700 (9th Cir. 1989)).

24 Id. (quoting Wood v. Milyard, 566 U.S. 463, 474 (2012)) (concerning waiver of the timeliness of a habeas corpus petition).

According to Duke, given the circumstances it is not surprising that the NRC did not immediately initiate the Herculean undertaking of a proactive review of all of the two million full-text documents Petitioners assert are maintained in the agencys ADAMS document repository, including every document previously released under the FOIA process, to identify potential CEII and seek a formal FERC CEII determination. Id. at 7-8 & n.30 (citing Petitioners Document Disclosure Motion at 6).

Also to be considered, Duke argues, are the consistent judicial holdings that, in the case of inadvertent disclosure, waiver occurs only when the holder has failed to take reasonable steps to reclaim the protected material.25 Duke asserts that in this instance, NRC took such steps so that no waiver occurred. See id. at 8. In Dukes estimation, the first identification of potential CEII in this proceeding was the NRC Staffs self-identification of potential CEII material at the June 24, 2024 initial prehearing conference, after which the Staff promptly reviewed the transcript and within seventy-two hours requested its withholding. See id. Thereafter, as described by Duke, the Staff performed a review to identify other potential CEII documents, removed them from the public domain, and sought a FERC determination about their CEII status consistent with the NRC/FERC MOU. See id. This approach, Duke claims, demonstrates that as soon as the Staff became aware of publicly available CEII, it took prompt and reasonable remediation steps such that no official and documented disclosure, and no official acknowledgment waiver occurred. Id.

Finally, Duke seeks denial of Petitioners other requests for relief as not authorized by the Boards December 2, 2024 order inviting briefing on the application of the official acknowledgment doctrine to this proceeding. See id. at 9. Duke first argues that to the degree Petitioners motion seeks to broaden the defined scope of the relevant redacted documents 25 Id. at 8 (quoting SEC v. Lavin, 111 F.3d 921, 930 (D.C. Cir. 1997) (concerning waiver of confidential marital communications privilege)).

under that order to include documents never placed into this proceedings adjudicatory docket, the motion (1) constitutes an untimely petition for reconsideration of that order that fails to address or satisfy the compelling circumstance standard of 10 C.F.R. § 2.345; (2) is a general motion under section 2.323 that is both untimely and fails to comply with that provisions requirement for pre-filing consultation with the proceedings other participants; and (3) as a substantive matter, provides no basis supporting the proposition that a licensing board is authorized to commandeer the NRC FOIA process for non-adjudicatory documents. See id.

Duke likewise asserts that Petitioners vague demand for a prospective ruling that the Board will not honor future redactions of information that matches specific information that was previously posted on Public ADAMS must be denied because (1) it was untimely; (2)

Petitioners failed to consult with the other participants prior to filing; and (3) such a prospective policy would be contrary to settled law. Id.

C.

Licensing Board Determination In ruling on Petitioners disclosure motion, we begin by observing that we will not give further consideration to their requests in sections IV and V of their document disclosure motion to expand the scope of the Boards disclosure inquiry to include more than the redactions in the June 24, 2024 initial prehearing conference transcript and Petitioners four filings in the docket of this proceeding. Petitioners have chosen not to submit executed nondisclosure declarations and so do not come within the terms of Protective Order A, including its provision allowing redaction challenges. See Board Decision Regarding Public Release of Redacted Documents at 17 & n.15. Nonetheless, in the Boards December 2, 2024 issuance we attempted to provide them with an appropriate opportunity to challenge the redactions subject to Protective Order A, which encompassed only the transcript and Petitioners four filings. See id. at 18-19. We find no basis for further extending the scope of our December 2 order.

Additionally, at the outset we wish to make it clear that in providing for Board consideration of Petitioners official acknowledgment doctrine claim, the Board does not

question the public health and safety significance of identifying, classifying, and protecting CEII or the important role played by the NRC Staff and FERC in that endeavor. As the Board has made clear, the nonpublic status of appropriately designated CEII must be observed by those who might be in possession of such material.26 At the same time, we do not accept the premise, which is the central focus of the NRC Staffs filing opposing Petitioners disclosure motion, that the Board (and presumably the Commission as well) have no role in reviewing the validity of CEII-based redactions in the context of an agency adjudicatory proceeding. In establishing the terms of the Protective Order A provision permitting such a challenge and in responding to a reconsideration motion filed by Duke regarding that provision, the Board set forth its rationale as to why it finds such a provision appropriate. See Board Order Granting Protective Order Motion at 9-13; Board Decision Regarding Public Release of Redacted Documents at 7-8. Based on its review of the FAST Act, FERC and NRC regulations, and the FERC/NRC MOU, in its August 19 order establishing Protective Order A, the Board concluded that a presiding officer in an agency adjudication could entertain a CEII withholding challenge. See Board Order Granting Protective Order Motion at 12-13. The Staff now asserts that the Boards premise and therefore its conclusion are both incorrect as a matter of law. Staff Answer at 7.

Nothing presented by the Staff in its answer gives us cause to revise our initial conclusion about the ability of a presiding officer to consider a redaction challenge regarding CEII (or seemingly any other type of non-proprietary SUNSI) pursuant to a protective order or 26 See Board Order Granting Protective Order Motion at 6 n.5. Indeed, in that regard the Board has endeavored to follow recognized agency protocols regarding such information, including nondisclosure of identifying information regarding previously publicly available documents that were undergoing redaction review. See Board Decision Regarding Public Release of Redacted Documents at 13 n.9.

other appropriate mechanism. Nevertheless, below we address several of the points raised by the Staff in what now amounts to its own reconsideration request.27 In its pleading, the Staff makes the statement that because the Board lacks the authority and the discretion to determine FOIA or CEII disputes, it must deny Petitioners motion. Putting aside for the moment the question of the Boards authority to consider challenges to CEII-based redactions, in seeking to label Petitioners disclosure request a FOIA dispute, the Staff fails to acknowledge the underpinnings for a licensing boards (or the Commissions) consideration in an adjudicatory proceeding of the propriety of any SUNSI-based redaction. As has been observed previously, in the context of its discovery rules, the agency has elected to incorporate the exemptions of the FOIA into its own rules.28 Thus, in the adjudicatory context, in considering whether information properly may be withheld or redacted to preclude public disclosure, consistent with section 2.390, a presiding officer is essentially deciding whether it should be protected in accordance with any applicable FOIA exemptions.

27 Although during the July 30, 2024 prehearing conference the Staff, like Duke, did raise concerns about whether the Board could adjudicate CEII determinations, see Tr. at 165-66, 181 (Woods), 171-72 (Lighty), we find it troubling that, unlike Duke, the Staff chose not to seek reconsideration of the Boards August 19, 2024 issuance establishing a withholding challenge provision in Protective Order A. In making several references to the Boards lack of jurisdiction and authority, Staff Answer at 2, the Staff appears to be offering a sub silentio justification for not contesting the efficacy of Protective Order As redaction challenge provision contemporaneously with its promulgation, i.e., that a presiding officers jurisdiction can be challenged at any time. See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

ALAB-825, 22 NRC 785, 789 (1985) (noting that the issue of subject matter jurisdiction can be raised at any time). We are not necessarily in agreement with such a characterization here as the grounds for first formally interposing such an argument in a written pleading some four months after the Board adopted this provision. Nonetheless, in the context of this ruling that we refer to the Commission, see infra pp. 25-26, as a matter of administrative efficiency we will address their concerns to the degree they differ from, or expand upon, those previously raised by Duke. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-05-1, 61 NRC 160, 181 (2005).

28 Consumers Power Co. (Palisades Nuclear Power Facility), ALJ-80-1, 12 NRC 117, 121 (1980); see David Geisen, LBP-06-25, 64 NRC 367, 380 (2006) (observing that both licensing and appeal boards have noted the similarity between the public disclosure exemption provisions of section 2.390 and the FOIA and look to FOIA cases for guidance on public disclosure issues).

But a presiding officers consideration of the applicability of the established FOIA exemptions to the availability of information in an adjudicatory proceeding should not be conflated with the litigation of a FOIA dispute, which is a matter for resolution by the federal courts. By the same token, and contrary to the Staffs argument, see Staff Answer at 4-5, because the agency deems it appropriate to apply FOIA principles in resolving questions of public availability in adjudicatory proceedings, we see nothing inappropriate about considering the official acknowledgment doctrine in such a non-FOIA venue.29 The Staff suggests as well that by permitting a challenge to the redaction or withholding of SUNSI information in a context other than the discovery process that follows admission of a hearing petition, the Board acted outside the boundaries of its discretion. Thus, in seeking to distinguish the Point Beach case cited by the Board for the proposition that a presiding officers general authority to conduct a fair and impartial hearing provides discretion to consider whether nonpublic SUNSI is being appropriately withheld, the Staff points out that discovery was ongoing in that case, a process over which NRC presiding officers often have some leeway.30 This supposed distinction, however, fails to account for instances in which presiding officers have entered protective orders allowing for challenges to withheld SUNSI provided to the participants prior to a ruling on a petitioners hearing petition.31 29 Certainly, when compared to the national security interests generally at issue in cases in which the official acknowledgment doctrine has been invoked, see supra note 17 and accompanying text, nothing about the nature of CEII and the protection it is intended to afford would provide a basis for declining to consider that doctrine here.

30 See Staff Answer at 6-7 (citing Board Decision Regarding Public Release of Redacted Documents at 8 n.6) (discussing Wis. Elec. Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-2, 15 NRC 48, 53 (1982))).

31 See Commission Order, Exelon Generation Co., LLC, et al. (Braidwood Station, Units 1 and 2, et al.), Dkt Nos. 50-456, et al., (May 19, 2021) unnumbered attach. ¶ 14, at 5 (in license transfer proceeding, prior to filing of hearing requests Commission grants corrected protective order governing access to SUNSI information that includes a provision allowing challenges that asserted SUNSI does not qualify for protection) (unpublished); see also Licensing Board Memorandum and Order (Protective Order Governing Disclosure of Protected Information), S. Tex. Project Nuclear Operating Co. (South Texas Project, Units 3 and 4), Dkt.

The Staff further asserts that the cases on which the Board relies for its authority to rule on information disputes concerned trade secret information falling under FOIA exemption 4 and section 2.390(a)(4) rather than CEII falling under FOIA exemption 3 and section 2.390(a)(3) as information specifically exempted by statute.32 According to the Staff, because federal law precludes making designated CEII publicly available a presiding officer has no latitude regarding the disposition of such redactions. See Staff Answer at 6 (referencing Board Decision Regarding Public Release of Redacted Documents at 6).

Among the nine categories of information recognized in the NRCs SUNSI policy,33 the only one that appears to be encompassed by a specific set of procedures in section 2.390 is proprietary information.34 This is not surprising because this is the principal type of nonpublic information at issue in agency licensing adjudications. At the same time, licensing boards have looked to section 2.390 as a framework for assessing other types of SUNSI, including the protective orders and redaction challenges provided in section 2.390(b)(6) for proprietary information.35 Therefore, agency practice under section 2.390 has thus far not precluded a Nos. 52-012-COL and 52-013-COL (July 1, 2009) ¶ 11, at 4 (in combined license proceeding, granting protective order governing petitioners access to SUNSI associated with filing contentions relating to that information, including provision stating [n]othing in this Order shall preclude any person from seeking public disclosure of Protected Information in accordance with NRC regulations) (unpublished).

32 See Staff Answer at 6 n.25 and accompanying text (discussing Board Order Granting Protective Order Motion at 10; Wis. Elec. Power Co. (Point Beach Nuclear Plant, Units 1 & 2),

LBP-81-62, 14 NRC 1747, 1755-56 (1981); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 162-84 (2005)).

33 See NRC Policy for Handling, Marking, and Protecting [SUNSI] at 1 (ADAMS Accession No. ML052990146).

34 See 10 C.F.R. § 2.390(b) (outlining withholding procedures for trade secrets, privileged, or confidential commercial or financial information, including a provision for protective order access and subsequent public release after a determination that the information should be disclosed).

35 See Geisen, LBP-06-25, 64 NRC at 388 (in considering application of FOIA exemption 7 and section 2.390(a)(7) regarding information gathered for law enforcement purposes to personal privacy privilege claims, assessing impact of entry of a protective order in mitigating any harm arising from information disclosure to the requesting party).

presiding officer from employing these tools for challenges to other non-proprietary SUNSI and would not seem to preclude the same regarding CEII.36 Moreover, in addition to the legal issues associated with whether a presiding officer in an agency adjudication can consider a redaction challenge to information designated as CEII or some other type of non-propriety SUNSI, it is troubling as a matter of fairness, equity, and open government to allow one participant in an adjudicatory proceeding to identify information as nonpublic, require its removal from both the adjudicatory docket and the public record,37 and then refer that information to a non-participant in the proceeding for a withholding determination that, if the information is found to be subject to redaction, will essentially be unreviewable either before the agency or, presumably, upon judicial review of the underlying licensing or enforcement action.

Accordingly, given these considerations and the fact that in various contexts the Commission has recognized the need for an impartial and independent authority to rule on access disputes in adjudications, the Board declines to restrict its consideration of the propriety of withholding this particular SUNSI absent direction from the Commission. As such, we do not deny Petitioners disclosure motion on this ground. At the same time, in the Boards estimation 36 Because they declined to execute any nondisclosure declarations, Petitioners challenge to the SUNSI/CEII redactions in the initial prehearing conference transcript and their four filings has been brought outside the confines of Protective Order A. See supra p. 5.

Nonetheless, the considerations that govern allowing such a challenge are the same, whether brought via nonpublic filings under the aegis of a protective order or submitted on a more limited basis in the public record. See Board Decision Regarding Public Release of Redacted Documents at 18-19.

37 The documents removed from the public docket of this adjudicatory proceeding were publicly identified only after they were released in a redacted form. See Board Decision Regarding Public Release of Redacted Documents at 13 n.9. Documents associated with the 2021-2022 Oconee SLR proceeding, including the licensing boards decision on Petitioners hearing request in that case, also appear to have been removed from the public docket without any indication of whether or when they will be replaced with redacted versions. See infra note 40.

the issue of the ability of participants in an adjudicatory proceeding to contest a CEII redaction determination before a presiding officer is one that fulfills the section 2.323(f)(1) requirement that a licensing board ruling may be referred to the Commission if it presents significant and novel legal or policy issues. Accordingly, we make such a referral of this issuance.

Finally, we turn to the issue we afforded the participants the opportunity to address, i.e.,

whether the official acknowledgment doctrine compels the return to the public record of any of the redacted information in the June 24, 2024 initial prehearing conference transcript or Petitioners four filings. And as the NRC Staff declined to address the matter, in examining this question we have only the arguments of Petitioners and Duke to enlighten our consideration.

Initially, we find ourselves in agreement with Dukes observation that in framing the terms under which the official acknowledgment doctrine would be considered in this proceeding, the Board essentially directed that the first two prongs of the Fitzgibbon test be presumed satisfied here.38 As to the third prong of the Fitzgibbon test, we also are in agreement with Dukes explanation that the timing of NRCs original release of the information appears to have been somewhat before or at approximately the same time as the 2015 adoption of the FAST Act that defined CEII and outlined the regulatory regime under which it would be identified, designated, and protected from public release. See Duke Answer at 6. Additionally, as Duke points out, FERCs regulatory provisions implementing the FAST Act were not adopted until 2016, and the MOU between the NRC and FERC regarding the treatment of CEII was not 38 Duke Answer at 5 (citing Board Decision Regarding Public Release of Redacted Documents at 19-20 n.20). In this regard, in our December 2, 2024 issuance we observed that it was apparent that in one or more instances information from the transcript or four filings was derived from an agency record that previously was publicly available, making it unnecessary at this juncture to examine the public/nonpublic status of each redaction to make a determination about the overarching issue of the official acknowledgment doctrines application. See Board Decision Regarding Public Release of Redacted Documents at 19 n.20. The Mitman declaration included as an attachment to Petitioners disclosure motion tends to confirm the Boards assessment of the public/nonpublic nature of the redactions at issue. See Mitman Declaration at 1-4.

signed until 2018. See id. at 6-7. All this suggests that, at least prior to 2018, the NRC Staff has a plausible argument as to why its public release in 2015 and prior years of now-redacted CEII material and its subsequent actions concerning that material should not be considered as constituting a waiver of the agencys right to claim that the information is exempt from public release pursuant to section 2.390(a)(3).39 More problematic, however, is Dukes explanation as to why, post-2018, a finding that the agency waived its exemption claim would not be appropriate based on the agencys reasonable steps to retrieve the previously publicly released material. See id. at 8. According to Duke, the NRC Staffs reasonable steps in the reclamation process began when potential CEII was identified in the transcript of the June 24, 2024 initial prehearing conference, after which the Staff took steps to promptly review for potential CEII and remove from the public domain that transcript and other documents and provide them to FERC for a CEII determination.

See id. But what this argument fails to address is whether between 2018 and 2024 the agency took reasonable steps to identify and reclaim potential CEII materials that were in the public record, including materials associated with the first round of litigation in 2021-2022 concerning Dukes ONS SLR application that could also be utilized in this proceeding.40 39 While Petitioners assert that in this time frame the agencys action in posting documents that are the source of the redacted information into the public portion of the agencys ADAMS records system qualifies as official and documented disclosure, see Petitioners Document Disclosure Motion at 6-7, given the timing of CEIIs statutory and regulatory adoption relative to the NRCs public release of the information, this hardly seems dispositive of this issue.

40 As Petitioners noted in their April 2024 hearing petition, prior to filing their petition they became aware that the Staff had already identified and withdrawn from public availability a Staff document that played a prominent role in the first round of litigation. See supra note 5. So too, the Board has observed that a 2022 published licensing board decision regarding that first round of litigation apparently has been removed from the public record because of CEII concerns. See Board Decision Regarding Public Release of Redacted Documents at 15 n.12.

Also unclear is the extent to which the recent identification of CEII in its February 2024 DSEIS for this proceeding would be relevant to any determination about whether the Staff has taken reasonable steps to identify and reclaim previously public material. See Office of Nuclear Material Safety and Safeguards (NMSS), NRC, NUREG-1437, Site-Specific [EIS] for License

As it turns out, however, we need not consider the extent to which this waiver issue might be relevant to the application of the official acknowledgment doctrine given that Petitioners made no proffer in this regard in support of their disclosure motion. Thus, also in agreement with Duke, see Duke Answer at 8, we conclude that because Petitioners failed to carry their burden to satisfy the Fitzgibbon tests third prong, their disclosure motion must be denied.

Our denial of Petitioners document disclosure motion undoubtedly diminishes the significance of its procedural impact on this case.41 Nonetheless, in tandem with the matter of the Staffs advocating for what would constitute a departure from established practice in adjudicatory proceedings regarding the authority of a presiding officer to allow challenges to SUNSI determinations, see supra pp. 21-22, we consider the issue of whether the official acknowledgment doctrine provides a basis in this proceeding for having an agency document, previously public but subsequently withdrawn from the public record, returned to its former Renewal of Nuclear Plants, Supp. 2, Second Renewal, Regarding [SLR] for [ONS] at PDF p. 1 (drft. Feb. 2024) (redacted version) (ADAMS Accession No. ML24033A298).

Also in this regard, given the 2021-2022 SLR proceeding and Dukes submittal of its supplemental environmental report in November 2022, which made it clear that the ONS SLR application proceeding would move forward, with the Staffs apparent recognition in January 2023 that it had become necessary to remove from the public record information potentially associated with the ONS SLR application process, see Tr. at 179-80 (Woods), it is puzzling why at that time an effort was not made to identify and address CEII potentially associated with this proceeding. Such an effort, possibly combined with a nonpublic information access process delineated as part of the hearing opportunity notice associated with this adjudication, might have avoided much of the delay that accrued from the need to engraft a SUNSI/CEII review and redaction process onto this proceeding.

Finally, still unaddressed in this context is the question of the applicability of the Management Directive 3.4 Handbook provision regarding formerly publicly available documents withdrawn from the public domain by agency policy. See Board Decision Regarding Public Release of Redacted Documents at 14 n.10.

41 The significance of the alternative, i.e., the Board acting favorably on Petitioners disclosure motion, seems clear given that in opposing the motion both the NRC Staff and Duke suggested that the Board confer with the Commission prior to deciding Petitioners request, with the former referencing section 2.323(f)(1) and indicating it intended to seek a stay if the Board were to grant the disclosure request. See Staff Answer at 9-10; Duke Answer at 10.

publicly available status to be both significant and novel within the meaning of section 2.323(f)(1) such that we refer to the Commission our ruling on this matter as well.42 Accordingly, for the foregoing reasons, it is ORDERED that:

1. Petitioners Beyond Nuclear, Inc., and the Sierra Club, Inc., December 16, 2024 motion for document disclosure is denied.

2. As this decision raises significant and novel legal or policy issues regarding (1) the ability of participants in an agency adjudicatory proceeding to raise before the presiding officer a challenge to a SUNSI/CEII redaction determination; and (2) whether the official acknowledgment doctrine provides a basis in this proceeding for a nonpublic document to be 42 The Board notes that with the unusual circumstances associated with the NRC Staffs nonpublic SUNSI/CEII review of todays Board decision denying Petitioners hearing request, see Board Notice of Decision Issuance at 1-2, 3 & n.2, referring this decision seemingly avoids any possible discontinuity that Staff review process might create regarding the time within which the participants may seek Commission review of this ruling.

returned to its previous status as a public document, in accordance with 10 C.F.R.

§§ 2.319(l), 2.323(f)(1), the Boards ruling is referred to the Commission for its consideration.

THE ATOMIC SAFETY AND LICENSING BOARD G. Paul Bollwerk, III, Chair ADMINISTRATIVE JUDGE Dr. Sue H. Abreu ADMINISTRATIVE JUDGE Dr. Arielle J. Miller ADMINISTRATIVE JUDGE Rockville, Maryland January 17, 2025

/RA/

/RA/

/RA/

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

)

)

DUKE ENERGY CAROLINAS, LLC,

)

Docket Nos. 50-269 SLR-2

)

50-270 SLR-2

)

50-287 SLR-2

)

(Oconee Nuclear Station Units 1, 2, and 3)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Denying Petitioners Document Disclosure Motion and Referring Ruling to the Commission) have been served upon the following persons by Electronic Information Exchange.

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

Duke Energy Carolinas, LLC (Oconee Nuclear Station Units 1, 2, and 3, Docket Nos. 50-269, 50-270, and 50-287 SLR-2)

MEMORANDUM AND ORDER (Denying Petitioners Document Disclosure Motion and Referring Ruling to the Commission) 2 Duke Energy Corporation 525 South Tryon Street Charlotte, North Carolina 28202 Tracey M. Leroy E-mail: tracey.leroy@duke-energy.com Counsel for Beyond Nuclear and Sierra Club Harmon, Curran, Spielberg, &

Eisenberg, LLP 1725 DeSales Street, N.W.

Suite 500 Washington, DC 20036 Diane Curran E-mail: dcurran@harmoncurran.com Beyond Nuclear Reactor Oversight Project 7304 Carroll Avenue #182 Takoma Park, MD 20912 Paul Gunter E-mail: paul@beyondnuclear.org Office of the Secretary of the Commission Dated at King of Prussia, PA this 17th day of January, 2025.

RUSSELL CHAZELL Digitally signed by RUSSELL CHAZELL Date: 2025.01.17 15:10:40

-05'00'