ML25062A299

Duke Energy Carolinas, LLCs Initial Views on the Atomic Safety and Licensing Boards Referred Questions as Requested by the Commissions February 13, 2025 Order

ML25062A299
Person / Time
Site:	Oconee
Issue date:	03/03/2025
From:	Bessette P, Leroy T, Lighty R, Mattison M Duke Energy Carolinas, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
RAS 57310, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2
Download: ML25062A299 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 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 March 3, 2025 DUKE ENERGY CAROLINAS, LLCS INITIAL VIEWS ON THE ATOMIC SAFETY AND LICENSING BOARDS REFERRED QUESTIONS AS REQUESTED BY THE COMMISSIONS FEBRUARY 13, 2025 ORDER RYAN K. LIGHTY, ESQ.

PAUL M. BESSETTE, ESQ.

MOLLY R. MATTISON, 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 A.

Procedural History................................................................................................. 1 B.

Critical Electric Infrastructure Information (CEII)............................................ 4 C.

The Official Acknowledgment Doctrine............................................................ 5 III.

DUKES VIEWS ON PRESIDING OFFICER AUTHORITY TO ADJUDICATE CHALLENGES TO CEII REDACTION DETERMINATIONS.................................. 7 A.

The NRC Lacks Authority to Adjudicate CEII Designations................................ 7 B.

The Commission Does Not Appear to Have Delegated Authority to Presiding Officers to Adjudicate Requests to Publicly Disclose CEII.................. 8

1.

The Board Did Not Identify a Delegation of Authority to Presiding Officers to Adjudicate Requests to Publicly Disclose CEII...................... 9

2.

The Only Authority Section 2.390 Confers Upon Presiding Officers Is to Issue Protective Orders...................................................... 12 IV.

DUKES VIEWS ON APPLICABILITY OF THE OFFICIAL ACKNOWLEDGEMENT DOCTRINE TO THE CEII AT ISSUE IN THIS PROCEEDING................................................................................................................ 14 A.

Notwithstanding the FOIA-Related Official Acknowledgement Doctrine, the NRC Is Prohibited by Statute from Releasing CEII...................... 15 B.

Even If the Official Acknowledgment Doctrine Applies to CEII, It Provides No Basis to Disclose CEII in This Proceeding..................................... 16 V.

CONCLUSION................................................................................................................ 19

iii TABLE OF AUTHORITIES Federal Statutes and Acts of Congress 16 U.S.C. § 824o-1................................................................................................................ passim Fixing Americas Surface Transportation Act, Pub. L. No. 114-94, 129 Stat. 1312 (Dec. 4, 2015)...................................................... 5, 17 Agency Cases Commonwealth Edison Co. (Zion Station, Units 1 and 2),

ALAB-196, 7 AEC 457 (1974)........................................................................................... 9 David Geisen, LBP-06-25, 64 NRC 367 (2006)................................................................................. 10, 11 Duke Power Co. (Catawba Nuclear Station, Units 1 & 2),

ALAB-825, 22 NRC 785 (1985)........................................................................................ 8 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3),

CLI-15-24, 82 NRC 331 (2015)........................................................................................ 13 Hous. Lighting & Power Co. (S. Tex. Project, Units 1 & 2),

CLI-92-10, 36 NRC 1 (1992)............................................................................................ 12 Sequoyah Fuels Corp. (Gore Okla. Site),

CLI-95-16, 42 NRC 221 (1995)........................................................................................ 14 Wis. Elec. Power Co. (Point Beach Nuclear Plant, Units 1 & 2),

LBP-82-2, 15 NRC 48 (1982)..................................................................................... 10, 11 Regulations 10 C.F.R. § 2.319.................................................................................................................... 10, 11 10 C.F.R. § 2.390................................................................................................................... passim 10 C.F.R. Part 9..................................................................................................................... 8, 9, 11 18 C.F.R. § 388.113.................................................................................................................. 5, 17 Unpublished NRC Orders Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3),

Licensing Board Memorandum and Order (Denying Petitioners Document Disclosure Motion and Referring Ruling to the Commission) (Jan. 17, 2025) (unpublished)

(ML25017A345)........................................................................................................ passim Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3),

Licensing Board Memorandum and Order (Granting Motion to Enter Protective Order)

(Aug. 19, 2024) (unpublished) (ML2424232A211)........................................................... 2

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

Licensing Board Memorandum and Order (Protective Order Governing Specific Sensitive Unclassified Non-Safeguards Information) (Aug. 19, 2024) (unpublished)

(ML24232A213)............................................................................................................. 2, 3 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3),

Licensing Board Memorandum and Order (Regarding NRC Staff Review of Initial Prehearing Conference Transcript) (July 8, 2024) (unpublished) (ML24190A192).......... 2 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3),

Licensing Board Memorandum and Order (Regarding Status of Initial Prehearing Conference Transcript) (June 28, 2024) (unpublished) (ML24180A244).......................... 2 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3),

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) (unpublished) (ML24337A154).................................................................. 3 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3),

Order of the Secretary (Feb. 13, 2025) (unpublished) (ML25044A034)........................... 1 Exelon Generation Co., LLC (Braidwood Station, Units 1 & 2),

Commission Order (Protective Order Governing the Disclosure of Sensitive Unclassified Non-Safeguards Information) (May 19, 2021) (unpublished) (ML21139A325)............. 10 S. Tex. Project Nuclear Operating Co. (South Texas Project, Units 3 & 4), Licensing Board Memorandum and Order (Protective Order Governing Disclosure of Protected Information) (July 1, 2009) (unpublished) (ML091820419)............................................ 10 Federal Register Notices Critical Energy Infrastructure Information, 68 Fed. Reg. 9,857 (Mar. 3, 2003)........................ 4, 5 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)........................ 1, 8 Other Authorities Memorandum of Understanding Between US NRC and Federal Energy Regulatory Commission Regarding Treatment of Critical Energy/Electric Infrastructure Information (June 6, 2018) (ML18164A182)........................................................................................... 5, 18, 19 NRC Management Directive 3.1, Freedom of Information Act (Feb. 26, 2021)

(ML16110A398)............................................................................................................... 13 NRC Management Directive 3.4, Release of Information to the Public (Feb. 6, 2009)

(ML080310417)................................................................................................................ 13 NRC Management Directive 9.22, Organization and Functions, Office of the Chief Information Officer (Oct. 14, 2016) (ML18073A250)....................................................................... 13

v Federal Court Cases ACLU v. DOD, 628 F.3d 612 (D.C. Cir. 2011)............................................................................................ 6 ACLU v. DOJ, 640 F. Appx 9 (D.C. Cir. 2016)................................................................................... 6, 16 Amiri v. Natl Sci. Found.,

664 F. Supp. 3d 1 (D.D.C. 2021)...................................................................................... 18 Citizens for Resp. & Ethics in Wash. v. U.S. Dept of Com.,

No. 18-03022, 2020 WL 4732095 (D.D.C. Aug. 14, 2020)............................................. 18 Citizens for Resp. & Ethics in Wash. v. U.S. Dept of Com.,

No. 20-5307, 2021 WL 672384 (D.C. Cir. Feb. 8, 2021)................................................. 18 Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990)...................................................................................... 6, 16 Leopold v. CIA, 380 F. Supp. 3d 14 (D.D.C. 2019)................................................................................ 6, 16 Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015).......................................................................................... 17 Montgomery v. IRS, 40 F.4th 702 (D.C. Cir. 2022)............................................................................................. 6 Natl Sec. Archive v. CIA, 104 F.4th 267 (D.C. Cir. 2024)........................................................................................... 6 Scott v. PPG Indus., Inc.,

142 F.R.D. 291 (N.D. W.Va. 1992).................................................................................. 18 Shapiro v. DOJ, 153 F. Supp. 3d 253 (D.D.C. 2016).................................................................................. 15 Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007)............................................................................................ 7

1 I.

INTRODUCTION On January 17, 2025, the Atomic Safety and Licensing Board (Board) denied a motion by Beyond Nuclear and Sierra Club (together, Petitioners) requesting that the Board order the public disclosure of redacted and other nonpublic information (Referred Order).1 In doing so, the Board also referred its ruling to the Commission for consideration of two questions related thereto. On February 13, 2025, the Secretary of the Commission issued an order inviting Duke Energy Carolinas, LLC (Duke), the U.S. Nuclear Regulatory Commission (NRC) Staff, and Petitioners (collectively, the Participants) to provide their views on those questions.2 Duke hereby provides its initial views in response to that invitation.

II.

BACKGROUND A.

Procedural History On February 13, 2024, the NRC published in the Federal Register an opportunity for members of the public to petition to intervene and request a hearing on the NRC Staffs February 2024 draft site-specific environmental impact statement associated with Dukes June 2021 subsequent license renewal application for the Oconee Nuclear Station, Units 1, 2, and 3.3 In response thereto, on April 29, 2024, Petitioners filed a Hearing Request and Petition to Intervene (Petition).4 The NRC Secretary referred that Petition to the Chief Judge of the Atomic Safety and Licensing Board Panel for consideration;5 and the Chief Judge established the 1

Licensing Board Memorandum and Order (Denying Petitioners Document Disclosure Motion and Referring Ruling to the Commission) (Jan. 17, 2025) (unpublished) (ML25017A345) (Referred Order).

2 See Order of the Secretary (Feb. 13, 2025) (unpublished) (ML25044A034).

3 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) (Hearing Opportunity Notice).

4 See Corrected Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club - REDACTED (Apr. 29, 2024; corrected version filed May 1, 2024) (ML24337A222).

5 Referral of [Petition] (May 1, 2024) (ML24122C693).

2 Board for this proceeding.6 The Board held an initial prehearing conference on June 24, 2024, concerning the admissibility of Petitioners contentions.7 During the prehearing conference, the Board asked the NRC Staff whether any information discussed at the prehearing conference may need to be treated as non-public.8 The NRC Staff informed the Board by email three days later, on June 27, 2024, that portions of the Transcript may be non-public and requested it be withheld pending further investigation.9 On July 8, 2024, the Board issued an order directing the Participants to provide a joint proposed protective order and nondisclosure affidavit for its consideration and potential approval.10 Duke and the NRC Staff complied with that order and submitted a proposed protective order and nondisclosure affidavit to the Board on July 24, 2024 (Joint Motion) seeking, in particular, withholding of information designated by the Federal Energy Regulatory Commission (FERC) as containing Critical Electric Infrastructure Information (CEII).11 Petitioners declined to participate in the efforts to craft the joint proposed protective order and instead opposed the Joint Motion altogether.12 On August 19, 2024, the Board issued the subject protective order governing CEII in this proceeding (Protective Order).13 Even though the 6

Establishment of Atomic Safety and Licensing Board (May 2, 2024) (ML24123A192).

7 See generally Transcript (June 24, 2024) (ML24337A176) (Redacted Version) (Tr.).

8 Tr. at 63, 86.

9 Licensing Board Memorandum and Order (Regarding Status of Initial Prehearing Conference Transcript) at 2-3 (June 28, 2024) (unpublished) (ML24180A244).

10 Licensing Board Memorandum and Order (Regarding NRC Staff Review of Initial Prehearing Conference Transcript) at 2 (July 8, 2024) (unpublished) (ML24190A192).

11 Joint Motion for Proposed Protective Order Governing Disclosure of [SUNSI] and Non-Disclosure Declaration (July 24, 2024) (ML24206A104).

12 See id. at 3 (consultation certification).

13 See Licensing Board Memorandum and Order (Granting Motion to Enter Protective Order) (Aug. 19, 2024)

(unpublished) (ML2424232A211); Licensing Board Memorandum and Order (Protective Order Governing Specific Sensitive Unclassified Non-Safeguards Information) (Aug. 19, 2024) (unpublished) (ML24232A213)

(Protective Order). The Board issued a second protective order related to different non-public information, but that is not the focus of the instant briefing.

3 Petitioners refused to execute a nondisclosure affidavit under the Protective Order, the Board included language that allowed Petitioners to contest the designation of any information as non-public.14 In a subsequent order issued on December 2, 2024, the Board granted the NRC Staffs request to make redacted versions of the adjudicatory documents containing CEII (the Transcript and four pleadings, collectively the Subject Documents) available on the public docket and also reiterated that it would allow Petitioners to move for public disclosure of the redacted information.15 But, because Petitioners declined to execute a nondisclosure affidavit, the Board limited the scope of Petitioners challenge to whether the official acknowledgement doctrine, a judicially-created waiver doctrine relevant to agency decisions to withhold information under the Freedom of Information Act (FOIA), prevented the NRC from withholding the redacted information.16 Accordingly, on December 16, 2024, Petitioners filed a Motion for Document Disclosures asking the Board to make publicly available the documents withheld as non-public in this adjudicatory proceeding, as well as other non-adjudicatory documents, under the official acknowledgement doctrine.17 Duke and the NRC Staff each opposed Petitioners Document Disclosure Motion on different grounds. Duke argued that the Fitzgibbon test is the appropriate legal standard for evaluating claims under the official acknowledgment doctrine and that 14 See Protective Order ¶ 11.

15 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) (unpublished) (ML24337A154).

16 Id.

17 Motion by [Petitioners] for Document Disclosures Required by the Official Acknowledgment Doctrine at 2 (Dec. 16, 2024) (ML24351A248) (Document Disclosure Motion).

4 Petitioners had failed to carry their burden to demonstrate its satisfaction here.18 The NRC Staff argued that the Board lacked the authority to adjudicate requests for public release of CEII.19 In its Referred Order, issued on January 17, 2025, the Board denied Petitioners Disclosure Motion.20 The Board rejected the NRC Staffs argument that licensing boards lack the authority to adjudicate requests for public release of CEII. However, the Board agreed with Duke that Petitioners failed to meet their burden under the Fitzgibbon test. Accordingly, the Board denied the Disclosure Motion. The Board further found that its decision raised significant and novel legal or policy issues and referred two questions to the Commission:

Referred Question # 1: Whether participants in an agency adjudicatory proceeding are able to raise before the presiding officer a challenge to a Sensitive Unclassified Non-Safeguards Information (SUNSI)/Critical Energy/Electric Infrastructure Information (CEII) redaction determination.

Referred Question # 2: Whether the official acknowledgment doctrine provides a basis in this proceeding for a nonpublic document to be returned to its previous status as a public document.21 B.

Critical Electric Infrastructure Information (CEII)

In the aftermath of the September 11, 2001, terrorist attacks, the FERC determined as a matter of policy that certain critical energy infrastructure information in its possession should be withheld from general public disclosure; and, at the same time, the FERC recognized that such information may need to be accessed by those with a need to know, such as state utility commissions.22 Accordingly, the FERC promulgated a procedure for gaining access to such 18 [Dukes] Answer Opposing Petitioners Motion for Document Disclosures (Dec. 23, 2024) (ML24358A273).

19 NRC Staff Response to Petitioners Motion for Document Disclosure at 2 (Dec. 23, 2024) (ML24358A200).

20 Referred Order at 25.

21 Id.

22 Critical Energy Infrastructure Information, 68 Fed. Reg. 9,857 (Mar. 3, 2003).

5 records that otherwise would not be available under FOIAs law enforcement exemption.23 Notably, those regulations had no applicability to the NRC. However, in 2015, Congress enacted the FAST Act, which amended to the Federal Power Act to create a new class of information, critical electric infrastructure information, and to require its protection by all Federal, State, political subdivision[s] or tribal authorit[ies].24 Notably, the definition of critical electric infrastructure information is broader than, and includes, critical energy infrastructure information.25 Thus, in 2015, the NRC first became subject to a federal statute requiring it to withhold this broader class of information designated as CEII, specifying an explicit statutory exemption of CEII from disclosure under FOIA, and prohibiting the release of CEII under any public disclosure law, without exception.26 Congress also delegated to FERCand FERC alonethe authority to issue regulations on designating information as CEII and regulations regarding the sharing and availability of CEII to those with a need to know.27 In June 2018, the NRC and FERC executed a Memorandum of Understanding (NRC-FERC MOU) regarding the treatment of CEII.28 Thereunder, FERC and the NRC agreed to mutually coordinate on the identification and treatment of CEII.

C.

The Official Acknowledgment Doctrine The FOIA provides nine exemptions to the general rule that federal agencies are required to disclose information publicly. Notwithstanding those nine exemptions, the judicially-created 23 Id.

24 Fixing Americas Surface Transportation Act, Pub. L. No. 114-94, 129 Stat. 1312 § 61003 (Dec. 4, 2015)

(codified at 16 U.S.C. § 824o-1) (FAST Act).

25 16 U.S.C. § 824o-1(a)(3).

26 Id. § 824o-1(d).

27 Id. § 824o-1(d)(2); see generally 18 C.F.R. § 388.113.

28 Memorandum of Understanding Between U.S. [NRC] and the [FERC] Regarding Treatment of Critical Energy/Electric Infastructure [sic] Information (June 6, 2018) (ML18164A182) (NRC-FERC MOU).

6 official acknowledgment doctrine provides that federal agencies, under certain circumstances, may be deemed to have waived their right to withhold otherwise-exempt information.

Specifically, the official acknowledgement doctrine provides that when an agency has officially acknowledged otherwise exempt information through prior disclosure, the agency has waived its right to claim [a FOIA exemption] with respect to that information.29 Under this doctrine, determining whether an agency has officially acknowledged publicly available information is key to determining whether information can be withheld or must be released.

To determine whether any agency has officially acknowledged publicly available information, the D.C. Circuit created a three-part test (referred to as the Fitzgibbon test).30 Under the Fitzgibbon test, to be officially acknowledged the information 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.31 The Fitzgibbon test as applied by the D.C. Circuit, is quite strict.32 The D.C. Circuit unequivocally recognized that just because information resides in the public domain does not eliminate the possibility that further disclosures can cause harm.33 Thus, courts insist on exactitude when evaluating waiver claims under the official acknowledgement doctrine, 29 Natl Sec. Archive v. CIA, 104 F.4th 267, 273 (D.C. Cir. 2024) (quoting Montgomery v. IRS, 40 F.4th 702, 710 (D.C. Cir. 2022)) (emphasis added); see also ACLU v. DOD, 628 F.3d 612, 620 (D.C. Cir. 2011) (If the government has officially acknowledged information, a FOIA plaintiff may compel disclosure of that information even over an agencys otherwise valid exemption claim.).

30 See Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990).

31 Fitzgibbon, 911 F.2d at 765.

32 ACLU v. DOJ, 640 F. Appx 9, 11 (D.C. Cir. 2016); Leopold v. CIA, 380 F. Supp. 3d 14, 24 (D.D.C. 2019)

(the D.C. Circuit has consistently applied the Fitzgibbon test strictly) (citation omitted).

33 Fitzgibbon, 911 F.2d at 766.

7 particularly where the information sought to be withheld relates to a vital interest such as public safety or national security.34 III.

DUKES VIEWS ON PRESIDING OFFICER AUTHORITY TO ADJUDICATE CHALLENGES TO CEII REDACTION DETERMINATIONS In Referred Question # 1, the Board invited the Commission to consider:

whether participants in an agency adjudicatory proceeding are able to raise before the presiding officer a challenge to a Sensitive Unclassified Non-Safeguards Information (SUNSI)/Critical Energy/Electric Infrastructure Information (CEII) redaction determination.

In Dukes view, this framing presents two separate questions. The first question is whether an NRC presiding officer may adjudicate a challenge to the designation of information as CEII. As explained below, the answer to that question is, clearly, no. The second question is whether a presiding officer may adjudicate a request to publicly disclose (as opposed to adjudicating a request for limited dissemination under a protective order) information withheld by the NRC because it was designated as CEII. As detailed below, the answer to that question also appears to be no.

A.

The NRC Lacks Authority to Adjudicate CEII Designations To the extent Referred Question # 1 queries whether an NRC presiding officer could adjudicate a challenge to the designation of information as CEII in the first instance, the unequivocal answer is no. Congress declined to bestow CEII designation authority on the NRC. The relevant federal statute, under a subheading titled Authority to designate, provides that [i]nformation may be designated by the [FERC] or [DOE] as [CEII] pursuant to the criteria and procedures established by the [FERC.] 35 No other agency has authority to designate CEII.

34 Wolf v. CIA, 473 F.3d 370, 378, (D.C. Cir. 2007).

35 16 U.S.C. § 824o-1(d)(3).

8 Simply put, the NRCincluding the Commission, itselfcan neither designate nor de-designate any information as CEII. Accordingly, NRC presiding officers lack jurisdiction or authority to adjudicate CEII designations.

B.

The Commission Does Not Appear to Have Delegated Authority to Presiding Officers to Adjudicate Requests to Publicly Disclose CEII To the extent Referred Question # 1 inquires whether an NRC presiding officer may adjudicate a request to publicly disclose FERC-designated CEII that has been withheld by the NRC pursuant to 16 U.S.C. § 824o-1(d)(1) and 10 C.F.R. § 2.390(a)(3), the answer also appears to be no. NRC presiding officers have only the jurisdiction and power delegated to them by the Commission.36 Although the Commission could delegate authority to a presiding officer to adjudicate such requests,37 it does not appear that the Commission has done so.38 As an initial matter, it is important to note that the NRCs FOIA process is defined in 10 C.F.R. Part 9; whereas, a separate regulatory provision, 10 C.F.R. § 2.390, governs the availability of information in an adjudicatory proceeding. Duke agrees with the Boards observation about the similarity among these provisions,39 as well as the Boards admonition that these are distinct processes that should not be conflated.40 It is undisputed that presiding 36 See, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-825, 22 NRC 785, 790 (1985).

37 However, the outcome of such an adjudication appears to be non-discretionary and mandated by statute. In addition to being exempt from FOIA, see 16 U.S.C. § 824o-1(d)(1)(A), the statute further provides that CEII 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. 16 U.S.C. § 824o-1(d)(1)(B). The judicially-created official acknowledgement doctrine would appear to be such a law.

38 The Commission issued no case-specific delegation of authority to adjudicate such requests in this proceeding.

See Hearing Opportunity Notice, 89 Fed. Reg. 10,107 (defining the scope of the hearing); Referral Memorandum (May 1, 2024) (ML24122C693) (not altering that scope).

39 See, e.g., Referred Order at 18 n.28.

40 Id. at 19.

9 officers have no authority or responsibility within the NRCs FOIA process. Rather, Referred Question # 1 relates solely to presiding officer authority under 10 C.F.R. § 2.390.

To be clearthe only provisions in NRC regulations pertaining to requests for full public disclosure of agency records are found in the agencys FOIA regulations in 10 C.F.R. Part 9.41 In contrast, 10 C.F.R. § 2.390 says nothing about entertaining requests for full public disclosure.

As explained further below, 10 C.F.R. § 2.390 merely provides presiding officers the authority to issue protective orders for the purpose of limiting dissemination of otherwise non-public information to adjudicatory participants to the extent needed for an adjudicatory proceeding.

And that distinction is imminently reasonable. The agencys center of expertise for public records requests under the FOIA is housed in its FOIA program, within the Office of the Chief Information Officer. In contrast, allowing public disclosure requests to be submitted under two different pathways (i.e., to the FOIA program and/or presiding officers), with different processes and procedures, appears likely to result in inefficiency, disparate results, and forum shopping.

Thus, it is logical that the Commission has never delegated authority to presiding officers to adjudicate public disclosure requests.

1.

The Board Did Not Identify a Delegation of Authority to Presiding Officers to Adjudicate Requests to Publicly Disclose CEII In its Referred Order, the Board did not identify any unambiguous delegation of authority to presiding officers to adjudicate requests to publicly disclose (as opposed to adjudication of requests for limited disclosure under a protective order) information withheld by the NRC pursuant to 16 U.S.C. § 824o-1(d)(1) and 10 C.F.R. § 2.390(a)(3). And Duke also has not 41 Accord Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-196, 7 AEC 457, 469 (1974) (the rules differentiate between the release of information to the public and to interested parties) (acknowledging that agency withholding from public inspection has no bearing on access for adjudicatory participants because separate regulations explicitly authorize the use in appropriate circumstances of a protective order and of in camera sessions of the hearing.)

10 identified any such delegation. Instead, the Board concluded that it had such authority because the Commission has recognized the need for an impartial and independent authority to rule on access disputes in adjudications.42 While that assertion may be true, it falls short of identifying a clear delegation of authority to consider public disclosure requests.

In support of its theory, the Board cited four cases. The Point Beach case was invoked for the proposition that a presiding officers general authority under 10 C.F.R. § 2.319 to conduct a fair and impartial hearing provides discretion to issue protective orders during the discovery phase of a proceeding.43 The Board also cited the Braidwood and South Texas Project (STP) cases for the proposition that the Commission and presiding officers, respectively, can issue protective orders during the contention admissibility phase of a proceeding and because they included provisions related to disclosure of withheld information.44 Lastly, the Board cited the Geisen case for the notion that presiding officer authority to adjudicate withholding disputes goes beyond proprietary information.45 But those cases are inapt for multiple reasons.

First, regardless of proceeding phase (e.g., contention admissibility vs. discovery) or withholding category (e.g., proprietary or CEII), there is no dispute that presiding officers may issue protective orders. Section 2.390(f) expressly states that [t]he presiding officer, if any, or the Commission may do so. Importantly, that is the only delegation of authority to a presiding officer in the entirety of Section 2.390 (which is discussed further below). Thus, neither Point 42 Id. at 21.

43 Id. at 19 (citing Wis. Elec. Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-82-2, 15 NRC 48, 53 (1982)).

44 Id. at 19 & n.31 (citing Exelon Generation Co., LLC (Braidwood Station, Units 1 & 2), Commission Order (Protective Order Governing the Disclosure of Sensitive Unclassified Non-Safeguards Information) at 5 ¶ 14 (May 19, 2021) (unpublished) (ML21139A325) (Braidwood Order); S. Tex. Project Nuclear Operating Co.

(South Texas Project, Units 3 & 4), Licensing Board Memorandum and Order (Protective Order Governing Disclosure of Protected Information) at 4 ¶ 11 (July 1, 2009) (unpublished) (ML091820419) (STP Order)).

45 Id. at 20 & n.35 (citing David Geisen, LBP-06-25, 64 NRC 367, 388 (2006)).

11 Beach nor Braidwood nor STP nor Geisen support the Boards claimed authority to adjudicate demands for public disclosure of information withheld by the NRC pursuant to 16 U.S.C.

§ 824o-1(d)(1) and 10 C.F.R. § 2.390(a)(3).

Second, the Board sought to rest its authority conclusion on a provision in the Braidwood order allowing challenges that asserted SUNSI does not qualify for protection.46 But that observation is irrelevant here because the Commission, not a presiding officer, issued the Braidwood order. There is no dispute that the Commission may adjudicate challenges to its statutory compliance or the withholding of information under 10 C.F.R. § 2.390(a)(3) (or any other provision of its regulations) if it so chooses.

Third, the Board cited a provision in the STP order stating that [n]othing in this Order shall preclude any person from seeking public disclosure of Protected Information in accordance with NRC regulations.47 That, too, is unremarkable. The normal mechanism for seeking public disclosure of information in accordance with NRC regulations is through the agencys FOIA process, codified in 10 C.F.R. Part 9, which has no bearing on presiding officer authority.

Finally, while a presiding officers case management authority under 10 C.F.R. § 2.319 empowers it to control the hearing process and avoid delay, it is unclear how adjudicating a request to publicly disclose CEII would facilitate those ends. Presiding officers have express authority under 10 C.F.R. § 2.390(f) to grant access to documents for adjudicatory participants by issuing protective orders. The Board identified no reason that public disclosure would be 46 Id. at 19 & n.31 (citing Braidwood Order).

47 Id. at 19-20 & n.31 (citing STP Order).

12 necessary for case management purposes where access to the subject information by adjudicatory participants was available through a protective order.48 Collectively, the Board did not identify any clear delegation of authority empowering presiding officers to adjudicate demands to publicly disclose information withheld by the NRC pursuant to 16 U.S.C. § 824o-1(d)(1) and 10 C.F.R. § 2.390(a)(3).

2.

The Only Authority Section 2.390 Confers Upon Presiding Officers Is to Issue Protective Orders A close examination of Section 2.390 confirms that the regulation, itself, confers no authority, whatsoever, to presiding officers, other than the authority to issue protective orders.

A section-by-section analysis is summarized below.

The first part of the regulation, Section 2.390(a), provides that NRC records in licensing and rulemaking proceedings will be made available on the NRCs website or in its public document room, with two exceptions: (1) documents that fall within one of the nine FOIA exemptions, and (2) any other documents for which an NRC determination of a compelling reason for non-disclosure has been made. Subject to the provisions of 2.390(b), (d), (e), and (f),

these two types of documents appear to be categorically exempt from public disclosure under this provision.

Notably, Section 2.390(a) uses passive voice and does not say, specifically, who is responsible for (1) making relevant documents available, or (2) determining whether one of the exceptions applies. And it confers no authority on anyone to adjudicate disputes on any of these 48 A participants refusal to execute non-disclosure agreements as required by a protective order, such as Petitioners refusal here, provides no basis for public disclosure. See, e.g., Hous. Lighting & Power Co.

(S. Tex. Project, Units 1 & 2), CLI-92-10, 36 NRC 1, 13 (1992) (Intervenor, in being unwilling to participate in the process that could result in the disclosure of the information it seeks, has effectively waived its right to further consideration of its discovery request on these matters. It cannot claim prejudice.).

13 topics. However, NRC Management Directives appear to fill in these gaps by delegating such responsibilities to the NRC Staff.49 Next, Section 2.390(b) specifies certain procedures50 applicable to anyone submitting a document to the NRC who requests non-disclosure of that document under the proprietary information exemption; and Section 2.390(d) provides that certain security-related and foreign-source documents are considered proprietary information. Notably, Sections 2.390(b) and (c) also say that the Commission will determine whether to grant such requests. But these regulations delegate no authority to presiding officers to make such determinations. That said, the Commission is aware that some presiding officers have adjudicated proprietary withholding requests.51 On one hand, the fact that the Commission has not rejected the practice outright suggests that presiding officer determinations of proprietary withholding requests are, at least implicitly, endorsed by the Commission. On the other hand, implied delegations are disfavored; and it does not appear that the question of presiding officer authority to make such determinations has ever been squarely presented to the Commission. In any event, neither provision is applicable here because CEII is not considered proprietary information.

Section 2.390(e) provides that documents submitted to the NRC may be reproduced and distributed as needed to carry out the Commissions official responsibilities. That general 49 See NRC Management Directive 3.1, Freedom of Information Act (Feb. 26, 2021) (ML16110A398); NRC Management Directive 3.4, Release of Information to the Public (Feb. 6, 2009) (ML080310417); NRC Management Directive 9.22, Organization and Functions, Office of the Chief Information Officer (Oct. 14, 2016) (ML18073A250).

50 The Board acknowledged that Section 2.390 contains procedures for evaluating withholding requests for proprietary information only; but, the Board rejected the notion that this was a limitation, suggesting instead that these procedures were merely a generalized framework to be applied to other categories of protected information. Referred Order at 20-21. But the text of the regulation does not support that interpretation. In fact, the absence of procedures for the other categories suggests the opposite under the longstanding canon of construction expresio unius (i.e., the expression of one thing implies the exclusion of others).

51 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-15-24, 82 NRC 331 (2015).

14 disclaimer simply reflects the ordinary proposition that docketed licensing submittals are not categorically exempt from disclosure.

Finally, as explained above, Section 2.390(f) provides that [t]he presiding officer, if any, or the Commission may issue protective orders in certain circumstances. Such orders authorize adjudicatory participants to access documents otherwise withheld from public disclosure.

Importantly, the Commission has expressly cautioned that a presiding officers authority to issue protective orders may not be read to enlarge the Licensing Boards authority to areas that the Commission has clearly assigned to other offices.52 As noted above, the Commission appears to have delegated authority to the NRCs FOIA program to evaluate requests for public disclosure. Ultimately, nothing in the text of Section 2.390 delegates authority to a presiding officer to adjudicate requests for public disclosure of CEII (or any other information).53 At bottom, and for the reasons discussed above, Referred Question # 1 should be answered in the negative: participants in an agency adjudicatory proceeding are unable to raise before the presiding officer a challenge to a SUNSI/CEII redaction determination.

IV.

DUKES VIEWS ON APPLICABILITY OF THE OFFICIAL ACKNOWLEDGEMENT DOCTRINE TO THE CEII AT ISSUE IN THIS PROCEEDING In Referred Question # 2, the Board invited the Commission to consider:

52 Sequoyah Fuels Corp. (Gore Okla. Site), CLI-95-16, 42 NRC 221, 226 (1995).

53 The most harmonious reading of the cases, regulations, and NRC Management Directives cited aboveand the only reading that appears to do no violence to those authoritiessuggests that: (1) the NRC Staff determines whether or not agency-held licensing documents will be made publicly available; (2) the Commission (or its delegate) will adjudicate requests from external submitters to withhold proprietary information; (3) presiding officers may grant or deny protective orders making non-public documents available to adjudicatory participants only; and (4) requests for public disclosure of documents (adjudicatory or otherwise) are directed to the FOIA program.

15 whether the official acknowledgment doctrine provides a basis in this proceeding for a nonpublic document to be returned to its previous status as a public document.54 The Commission should answer this question in the negative for two reasons. First, pursuant to federal statutory mandate, the NRC is prohibited from making CEII publiceven under FOIA or its judicially-created official acknowledgement doctrine. Second, even if the official acknowledgement doctrine applied to CEII, it would not compel public disclosure here under the relevant test. For either or both of these reasons, the answer to Referred Question # 2 is no.

A.

Notwithstanding the FOIA-Related Official Acknowledgement Doctrine, the NRC Is Prohibited by Statute from Releasing CEII The official acknowledgment doctrine is a court-made waiver doctrine that applies only to documents withheld under FOIA.55 In contrast, the subject information in this proceeding is CEII which, by statute, is exempt from disclosure under FOIA.56 For that reason, it follows that CEII also is exempt from the official acknowledgement doctrine. Furthermore, that same statute contains a second provision specifying that CEII also 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.57 So, even if the statute exempting CEII from FOIA did not remove CEII from the ambit of the official acknowledgement doctrine, then this secondary, belt-and-suspenders statutory provision almost certainly would do so. The official acknowledgement doctrine is fairly characterized as a (judicially-created) public-disclosure law; whereas the statute commands that CEII not be 54 Referred Order at 24, 25-26.

55 See Shapiro v. DOJ, 153 F. Supp. 3d 253, 285 (D.D.C. 2016) ([t]he official-acknowledgment doctrine is a waiver doctrine that may be invoked by a FOIA requester).

56 16 U.S.C. § 824o-1(d)(1)(A).

57 16 U.S.C. § 824o-1(d)(1)(B) (emphasis added).

16 released pursuant to any public-disclosure law. Either way, the plain text of the statute appears to forbid any application of the official acknowledgement doctrine to make CEII publicin this (or any other) proceeding.58 For that reason, the answer to Referred Question # 2 is no.

B.

Even If the Official Acknowledgment Doctrine Applies to CEII, It Provides No Basis to Disclose CEII in This Proceeding The D.C. Circuit created a three-part test (referred to as the Fitzgibbon test) to determine whether information has been officially acknowledged. Under the Fitzgibbon test, to be officially acknowledged, the information 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.59 Here, the Board provided that the first two prongs of the Fitzgibbon test are presumed to be satisfied in this proceeding.60 Thus, whether the Fitzgibbon test is satisfied turns on the third prong, i.e., whether the CEII was already made public through an official and documented disclosure.61 The Fitzgibbon test is strictly applied, and it is not enough to show that the information was, at one time, publicly available.62 According to the D.C. Circuit, just because information resides in the public domain does not eliminate the possibility that further disclosures can cause harm.63 Thus, the third prong of the Fitzgibbon test extends beyond a simple evaluation of 58 Duke did not identify any reported cases applying the official acknowledgement doctrine to CEII.

59 Fitzgibbon, 911 F.2d at 766.

60 Referred Order at 22.

61 Fitzgibbon, 911 F.2d at 766.

62 See ACLU, 640 F. Appx at 11; Leopold, 380 F. Supp. 3d at 24.

63 Fitzgibbon, 911 F.2d at 766.

17 whether the information was ever publicly available. Instead, the focus is on how the information became public and whether it should now be withheld.

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.64 If a disclosure results from agency carelessness or mistake, and the agency takes prompt action to remedy the situation upon its discovery, courts generally find such a disclosure does not operate as a waiver.65 As explained below, the now-redacted information first entered the public domain before CEII was established and before a legal basis for withholding existed. Thus, the NRC never made an informed or reasoned decision to disclose any CEII. Later, after CEII withholding requirements were enacted, the NRC acted promptly to protect the redacted information after it was discovered to be in the public domain.

The redacted information was allegedly made publicly available between 2009 and 2014.66 But, at that time, Congress had not passed the law creating CEII and mandating its withholding. That law did not take effect until December 4, 2015, when Congress passed the FAST Act.67 The FAST Act charged FERC and the DOE with the responsibility for CEII designations but imposed no requirements on the NRC regarding CEII (other than the requirement to withhold CEII).68 The FAST Act also granted FERC authority to promulgate regulations on CEII.69 FERC did not promulgate CEII regulations until 2016. Thus, when the subject records (containing information now known to be CEII) were first published on 64 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).

65 See, e.g., id.

66 Motion at 4.

67 See supra note 22.

68 16 U.S.C. §§ 824o-1(d), (d)(3).

69 Id. § 824o-1(d)(2); see generally 18 C.F.R. § 388.113.

18 ADAMS, the concept of CEII, and laws and regulations governing CEII, did not exist.

Moreover, the NRC and FERC did not execute the NRC-FERC MOU governing CEII until 2018. The Board looked at these facts and agreed that the public release in 2015 and prior years of now-redacted CEII material should not be considered as constituting a waiver of the agencys right to claim that the information is exempt from public release.70 Yet, the Board questioned whether the NRC should have (unilaterally and with no funding for that purpose) undertaken a review of millions of documents in ADAMS, identified potential CEII, consulted with FERC, and removed the information from publicly available ADAMS between 2018 and 2024.71 Nevertheless, that concern is irrelevant to the legal standard for determining a waiver under the official acknowledgement doctrine. Federal courts have consistently held that the timeliness and reasonableness of efforts to claw back inadvertently released information is gauged not on how long the records were exposed, but on how quickly the agency took action upon discovering the release.72 Here, the NRC staffs investigatory efforts regarding the Subject Documents began immediately upon discovery and resulted in concrete steps to claw back information within 72-hours of discovery.73 But even if the duration of exposure were relevant here (it is not), the simple explanation is that, under the FAST Act, FERC regulations, and the NRC-FERC MOU, the NRC had no obligation to review millions of pages of documents on ADAMS for potential CEII. Moreover, 70 Referred Order at 23.

71 Id.

72 Scott v. PPG Indus., Inc., 142 F.R.D. 291, 294 (N.D. W.Va. 1992) (finding no waiver where, upon discovery, agency promptly made an effort to remedy the inadvertent release); Amiri v. Natl Sci. Found., 664 F. Supp. 3d 1, 16 (D.D.C. 2021) (finding no waiver where agency took prompt steps to protect the unredacted documents from public view); Citizens for Resp. & Ethics in Wash. v. U.S. Dept of Com., No. 18-03022, 2020 WL 4732095, at *2 (D.D.C. Aug. 14, 2020), appeal dismissed, No. 20-5307, 2021 WL 672384 (D.C. Cir. Feb. 8, 2021) (finding several ways agencies may show attempts were made to remedy a disclosure including investigating the disclosure, contacting the individuals involved, and seeking to prevent further disclosure).

73 See Referred Order at 15.

19 whether a document contains CEII is not a decision the NRC can make; that decision rests with FERCs CEII Coordinator.74 Upon discovery of potential CEII, the NRC-FERC MOU calls for the NRC to refer material to the FERC CEII coordinator for a CEII determination and makes the NRC responsible for the care, handling, and protection of any NRC document that is determined to be CEII by the CEII Coordinator.75 That precise process was followed here. At all times after the information was formally designated as CEII by the FERC, the NRC protected that information accordingly. These circumstances are the opposite of an official and documented disclosure. Thus, a finding of waiver under the Fitzgibbon test is inappropriate.

For the reasons discussed above, Referred Question # 2 should be answered in the negative: the official acknowledgment doctrine provides no basis in this proceeding for a nonpublic document to be returned to its previous status as a public document.

V.

CONCLUSION As established above, the NRC lacks authority to adjudicate CEII designations; and the Commission does not appear to have delegated to presiding officers any authority to adjudicate requests for public disclosure of CEII, which are appropriately directed to the NRCs FOIA process. Furthermore, the official acknowledgement doctrine provides no basis in this proceeding to publicly disclose CEII because that result is prohibited by statute and, alternatively, because the Fitzgibbon test is not satisfied here.

74 NRC-FERC MOU at 2.

75 Id.

20 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.

MOLLY R. MATTISON, ESQ.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5796 (202) 739-5540 paul.bessette@morganlewis.com molly.mattison@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 3rd day of March 2025

DB1/ 155414191 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 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 March 3, 2025 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 INITIAL VIEWS ON THE ATOMIC SAFETY AND LICENSING BOARDS REFERRED QUESTIONS AS REQUESTED BY THE COMMISSIONS FEBRUARY 13, 2025 ORDER 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