ML25070A315

Corrected Initial Brief by Beyond Nuclear and Sierra Club on Referred Questions Regarding Official Acknowledgement Doctrine

ML25070A315
Person / Time
Site:	Oconee
Issue date:	03/11/2025
From:	Curran D Beyond Nuclear, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Sierra Club
To:	NRC/OCM
SECY RAS
References
RAS 57316, 50-287-SLR-2, 50-270-SLR-2, 50-269-SLR-2
Download: ML25070A315 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of

)

Duke Energy Carolinas, LLC

)

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

)

Units 1, 2 & 3

)

INITIAL BRIEF BY BEYOND NUCLEAR AND SIERRA CLUB ON REFERRED QUESTIONS REGARDING OFFICIAL ACKNOWLEDGEMENT DOCTRINE Submitted by:

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

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com Counsel to Beyond Nuclear and the Sierra Club March 3, 2025 Corrected March 11, 2025

TABLE OF CONTENTS Table of Authorities...................................................................................................................... ii I.

INTRODUCTION............................................................................................................. 1 II.

FACTUAL AND PROCEDURAL BACKGROUND....................................................... 3 III.

ARGUMENT..................................................................................................................... 8 A. The Redacted Information Must be Released Under the Official Acknowledgment Doctrine.............................................................................................................................. 8

1. The official acknowledgment doctrine imposes an absolute waiver that can be excused only for inadvertent disclosures..................................................................... 8

2. Even assuming for purposes of argument that the official acknowledgment doctrine does not apply under some reasonable circumstances, the record shows that the prior releases were knowing and deliberate........................................................................ 11 B. In Addition to the Five Documents, the Commission Should Order the Disclosure of All of the Source Documents Cited by Appellants in Their Hearing Request................ 16 IV.

CONCLUSION................................................................................................................ 17

ii TABLE OF AUTHORITIES Judicial Decisions ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013)................................................................................ 8 Dean v. United States Dept of Just., 87 F. Supp. 3d 318 (D.D.C. 2015)................................... 11 Detroit v. Free Press v. Ashcroft, 503 F.3d 681 (6th Cir. 2002)................................................. 16 Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990).............................................................. 7, 9, 10 Knight First Amend. Inst. at Columbia Univ. v. CIA, 11 F.4th 810 (D.C. Cir. 2021)................. 11 Memphis Pub. Co. v. F.B.I., 879 F. Supp. 2d 1 (D.D.C. 2012)................................................... 10 Mobil Oil Corp. v. EPA, 879 F.2d 698 (9th Cir. 1989) Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015)..................................................................................................... 11 New York Civ. Liberties Union v. New York City Transit Auth.,

684 F.3d 286 (D.C. Cir. 2011)..................................................................................................... 16 New York Times Co. v. FBI, No. 22-CV-3590 (JPO), 2024 WL 3638090 (S.D.N.Y. Aug. 1, 2024).............................................................................................................. 11 Public Employees for Environmental Responsibility v. NRC, No. 13-1248 (ML13330B641).... 10 SEC v. Lavin, 111 F.3d 921, 930 (D.C. Cir. 1997)...................................................................... 11 Wood v. Milyard, 566 U.S. 463, 474 (2012)................................................................................ 11 Statutes Atomic Energy Act.................................................................................................................... 5, 6 FAST Act................................................................................................................. 6, 9, 11, 12, 15 16 U.S.C. §§ 824o-1(a)(2), (d)(1)(A)-(B).............................................. 6, 9, 11, 12, 13, 14 Freedom of Information Act................................................................ 4, 7, 8, 9, 10, 11, 12, 13, 15 5 U.S.C. 552............................................................................................................... 12, 13 5 U.S.C. § 552(b)(3).......................................................................................................... 8 FOIA Exemption 3............................................................................................................. 8

iii FOIA Exemption 7(f)........................................................................................... 13, 14, 15 National Environmental Policy Act........................................................................................... 4, 5 Regulations 18 C.F.R. § 388.113(c)(1))................................................................................................. 6, 12, 13 18 C.F.R. § 388.113(c)(2)...................................................................................................... 12, 13 18 C.F.R. § 388.113(c)(4)............................................................................................................ 12 Administrative Decisions Duke Energy Carolinas, LLC, et al. (Oconee Nuclear Station, Units 1, 2, and 3),

LBP-22-1, 95 N.R.C. 49 (2022), proceeding dismissed, CLI-22-03, 95 N.R.C. 40 (2022).......... 5 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 N.R.C. 33 (1977)................................................................................................................... 8, 16 Federal Register Notices Final Rule, Regulations Implementing FAST Act Section 61003 -

Critical Electric Infrastructure Security, Etc., 81 Fed. Reg. 93,732 (Dec. 21, 2016).................. 12 Final Rule, Critical Energy Infrastructure Information, 68 Fed. Reg. 9857 (Mar. 3, 2003).......................................................................................... 13, 14 Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 2, Second Renewal Regarding Subsequent License Renewal for Oconee Nuclear Station, Units 1, 2, and 3, Draft Report for Comment (NUREG-1437, Supp. 2, Feb. 2024)... 5, 6 Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 2, Second Renewal Regarding Subsequent License Renewal for Oconee Nuclear Station, Units 1, 2, and 3 (January 2025)...................................................................................... 5 Miscellaneous SECY-04-0191, Memorandum to the Commissioners from Luis A. Reyes, Executive Director for Operations, re: Withholding Sensitive Unclassified Information Concerning Nuclear Power Reactors from Public Disclosure (Oct. 19, 2004) (ML042310663)............................................ 13

iv SRM-SECY-04-0191 Memorandum to Luis A. Reyes, Executive Director for Operations, from Annette L. Vietti-Cook, Secretary, re: Staff Requirements - SECY-04-0191 -- Withholding Sensitive Unclassified Information Concerning Nuclear Power Reactors from Public Disclosure (Nov. 9, 2004)............................................................................................................................. 13 SECY-05-0091, Memorandum to the Commissioners from Karen D. Cyr, General Counsel, re:

Task Force Report on Public Disclosure of Security-Related Information (May 18, 2005)....... 14 SRM-SECY-05-0091, Memorandum from Annette L. Vietti-Cook, Secretary, to Karen K. Cyr, General Counsel re: Task Force Report on Public Disclosure of Security-Related Information (June 30, 2005)............................................................................................................................ 14

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of

)

Duke Energy Carolinas, LLC

)

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

)

March 3, 2025 Units 1, 2 & 3

)

Corrected March 11, 2025 INITIAL BRIEF BY BEYOND NUCLEAR AND SIERRA CLUB ON REFERRED QUESTIONS REGARDING OFFICIAL ACKNOWLEDGEMENT DOCTRINE I.

INTRODUCTION Pursuant to the February 13, Order by the Secretary of the U.S. Nuclear Regulatory Commission (NRC or Commission), Appellants Beyond Nuclear, Inc. (Beyond Nuclear) and the Sierra Club, Inc. (Sierra Club)1 hereby respond to the following questions posed in the Order in this subsequent license renewal (SLR) proceeding for Duke Energy Carolinas LLCs (Dukes) three Oconee nuclear reactors:

(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; and (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. move the ASLB to publicly disclose all of the information that Staff has redacted from five documents recently posted by the Staff on the NRCs Electronic Hearing Docket.2 1 Appellants appeal of LBP-25-1, the Atomic Safety and Licensing Boards (ASLBs or Boards) Memorandum and Order (Ruling on Intervention Petition) (Jan. 17, 2025, published Jan. 22, 2025) is pending before the Commission. See Notice of Appeal of LBP-25-01 of Petitioners Beyond Nuclear and the Sierra Club (Feb. 24, 2025) and Brief on Appeal of LBP 01 of Petitioners Beyond Nuclear and the Sierra Club (Feb. 24, 2025) (Appeal Brief).

2 Id. at 1 (citing the Atomic Safety and Licensing Boards (ASLBs or Boards) Order (Denying Petitioners Document Disclosure Motion and Referring Ruling to the Commission at 25 (Jan. 17, 2025) (unpublished) (ASLB Referral Order)).

2 These questions were raised and referred to the Commission by the ASLB in denying Appellants motion for disclosure of formerly-public information relevant to this proceeding that the NRC Staff has removed from the public record.3 The withdrawn information is contained in five now-redacted documents that were submitted or created in the adjudicatory proceeding:

Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club (Apr. 29, 2024;) (2024 Hearing Request);

Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club (Apr. 29, 2024; Corrected May 1, 2024) (2024 Corrected Hearing Request);

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

(2024 Corrected Mitman Report);

Reply by Beyond Nuclear and the Sierra Club to Oppositions to Their Hearing Request and Petition to Intervene (June 7, 2024) (2024 Reply); and Transcript of Initial Prehearing Conference (June 24, 2024) (June 2024 Transcript).4 In addition, the Staff has withdrawn information from multiple Source Documents relied on and 3 Motion by Beyond Nuclear and the Sierra Club for Document Disclosures Required by the Official Acknowledgement Doctrine (Dec. 16, 2024) (Document Disclosure Motion). The Document Disclosure was supported by the Declaration of Jeffrey T. Mitman Regarding Disclosure History of Redacted Documents (Dec. 16, 2024) (Mitman 12/16/24 Declaration) and Mr. Mitmans Table of Public Disclosure of Source Documents and Other Redacted Information in Expert Report of Jeffrey T. Mitman) (Mitman Source Document Table).

4 See Document Disclosure Motion at 1 n.1. Petitioners will refer to these documents collectively as the Five Documents. All of the documents are now posted on the NRCs Electronic Hearing Docket with redactions recently imposed by the Staff.

3 referenced in the Appellants Hearing Request, Corrected Hearing Request and Corrected Mitman Report.5 II.

FACTUAL AND PROCEDURAL BACKGROUND Since the initial plant startup in mid-1970s, Duke has been operating its three Oconee reactors directly below two earthen dams, the Jocassee Dam and the Keowee Dam.6 These dams hold back a vast amount of water in two large lakes.7 The reactors were not designed against flooding risk posed by a breach of the Jocassee Dam, because neither Duke nor the NRC considered such a breach to be credible.8 In 2011, however, after years of investigations and correspondence with Duke, the NRC Staff issued a Safety Evaluation requiring protection of Oconee from a Jocassee Dam failure to a flood level the NRC Staff deemed essential to provide adequate protection of public health and safety.9 In subsequent correspondence with Duke, however, the NRC Staff significantly reduced the required flood protection level without stating that the new flood protection level remained 5 See Document Disclosure Motion at 2; Mitman 12/16/24 Declaration at 1-3; Mitman Source Document Table. Petitioners will refer to these documents collectively as Source Documents.

6 2024 Corrected Mitman Report at 4.

7 Id. As noted by Mitman, the Jocassee Dam impounds about a million acre-feet of water in the Jocassee Lake at normal lake operating level, with an area of 7,565 acres. The Keowee Dam impounds about one million acre-feet of water and has a surface area of about 18,000 acres.

8 See 2024 Corrected Mitman Report at 5 (citing Duke Response to 50.54(f) Request (Sept. 26, 2008) (Dukes 50.54(f) Response) (ML082750106). As stated in Attachment 1 to Dukes 50.54(f) Response at page 1, potential failure of the Jocassee Dam... is not addressed and is not currently considered part of the CLB [current licensing basis.

9 Letter from Eric J. Leeds, NRC, to Preston Gillespie, Duke, re: Staff Assessment of Dukes Response to Confirmatory Action Letter Regarding Dukes Commitments to Address External Flooding Concerns at the Oconee Nuclear Station, Units 1, 2, and 3 (ONS) (TAC Nos. ME3065, ME3066, and ME3067) and Enclosed Safety Evaluation (Jan. 28, 2011) (2011 Safety Evaluation). A redacted version of the 2011 Safety Evaluation is posted on public ADAMS at ML110280153.

4 sufficient to provide adequate protection to public health and safety.10 In 2021, Duke applied for a second renewal term for the three operating licenses. Appellants opposed the application, contending, inter alia, that Dukes Environmental Report was inadequate to satisfy the National Environmental Policy Act (NEPA) because it had failed to address the environmental significance of the Staffs 2011 Safety Evaluation with respect to accident risk during an SLR term.11 In their 2021 Hearing Request, Appellants relied on publicly available documents regarding flooding risks and the NRCs regulatory actions. All of these publicly available documents had been posted on the NRCs public-facing Agency Data Management and Access System (ADAMS), most in response to Freedom of Information Act (FOIA) requests and court litigation.12 Many of these documents were and remain publicly available on non-NRC websites.

10 See 2024 Corrected Mitman Report at 19-20 and documents cited therein.

11 Hearing Request and Petition to Intervene by Beyond Nuclear and the Sierra Club and Petition for Waiver, Etc. at 3 (Sept. 27, 2021) (2021 Hearing Request).

12 See Mitman, NRC Relicensing Crisis at Oconee Nuclear Station: Stop Duke from Sending Safety Over the Jocassee Dam at 1-2 (Sept. 2021) (2021 Mitman Report) (Exhibit 1 to Declaration of Jeffrey T. Mitman in Support of Beyond Nuclear and Sierra Club Hearing Request (Sept. 21, 2021), submitted as Attachment 1 to 2021 Hearing Request). Mr. Mitman highlighted the importance of these public disclosures as follows:

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

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

5 In 2022, an ASLB panel denied Petitioners 2021 Hearing Request and waiver petition, but the Commissioners subsequently dismissed the proceeding and ordered the NRC Staff to prepare an environmental impact statement (EIS) addressing the environmental impacts of a second license renewal term.13 Thereafter, the NRC Staff issued the Draft EIS14 and Appellants submitted their 2024 Hearing Request and supporting expert declaration and report by Mr.

Mitman.

In this remanded proceeding, Appellants seek accountability for the NRC Staffs unsupported assertion, in the Draft EIS, that the risk of an accident at the Oconee reactors during an extended operating license term - including the risk of a flooding-induced accident -- is SMALL because the reactors will be operated in a manner that provides adequate protection of public health and safety.15 Appellants contend that the Draft EIS assertion is both false and misleading and therefore violates NEPA because it fails to account for the Staffs unexplained abandonment of the flood protection it had determined in 2011 to be essential for adequate protection against flood-related accident risks under its Atomic Energy Act-based safety standards.16 By using the Atomic Energy Acts term adequate protection to characterize the 13 Duke Energy Carolinas, LLC, et al. (Oconee Nuclear Station, Units 1, 2, and 3), LBP-22-1, 95 N.R.C. 49, 91 (2022), proceeding dismissed, CLI-22-03, 95 N.R.C. 40, 41 (2022).

14 Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 2, Second Renewal Regarding Subsequent License Renewal for Oconee Nuclear Station, Units 1, 2, and 3, Draft Report for Comment (NUREG-1437, Supp. 2, Feb. 2024)

(Draft EIS). The Draft EIS has since been finalized in Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 2, Second Renewal Regarding Subsequent License Renewal for Oconee Nuclear Station, Units 1, 2, and 3 (January 2025)

(Final EIS).

15 Draft EIS at F F-5. And the same assertion appeared in the Final EIS at F F-5.

16 2024 Hearing Request at 5-6. See also supporting 2024 Corrected Mitman Report at 21-23.

6 reactors environmental impacts as SMALL, when the record provides no support for the use of that term, the NRC Staff improperly traded on the language of the Atomic Energy Act to falsely assure the public that accident risks were insignificant because flooding-induced accident risks during operation of the Oconee reactors would be minimized to the level assured by compliance with the Atomic Energy Acts adequate protection standard.17 In addition to providing false and misleading assurances in the Draft EIS, the NRC Staff undermined the publics ability to see the record by which the NRC established and then abandoned the 2011 flood protection measures, by removing, from documents posted on public ADAMS and/or submitted or created in the adjudicatory proceedings, key information regarding protection of Oconee from flooding or the lack thereof.18 The key information covered factual issues that included Standby Shutdown Facility (SSF) wall height, flood heights, impacts of flooding on Oconee equipment, and consequences to Oconee of failure of the upstream Oconee Dam.19 According to the Staff, it was required to withdraw the key information from the public record because the Federal Energy Regulatory Commission (FERC) had designated it as CEII under the 2015 FAST Act and FERC implementing regulations and the NRC had no discretion to do otherwise.20 17 2024 Hearing Request at 6-9; 2024 Corrected Mitman Report at 33.

18 LBP-25-1, slip op. at 2 n.2. At first, documents were removed in their entirety. Later, redacted versions were posted on ADAMS.

19 Mitman 12/16/24 Declaration at 4-5.

20 See ASLB Referral Order at 11-12 (citing NRC Staff Response to Petitioners Motion for Document Disclosure at 5-6 (Dec. 23, 2024) (citing 16 U.S.C. §§ 824o-1(a)(2), (d)(1)(A)-(B), 18 C.F.R. § 388.113(c)(1)). See also NRC Staff Motion Requesting that the Licensing Board Accept the Redacted Documents Identified as Non-Public Attachments A-D to this Motion for Inclusion on the Public Docket at 1 (Nov. 21, 2024) (citing NRC-FERC CEII Memorandum of Understanding Extension Third Addendum (Apr. 23, 2024)(ML24116A184 (package)) and Yellow Announcement YA-18-0051, Critical Energy/Electric Infrastructure Information Policy (May 25, 2018) (ML18145A145)).

7 Removal of this key information from the public record began sometime in 2022, starting with the 2011 Safety Evaluation.21 Throughout 2024, the Staff continued to remove documents containing key information from public ADAMS, later re-posting most of them with redactions.

These documents included LBP-22-1, the Five Documents and most of the Source Documents relied on by Appellants in their 2021 Hearing Request and 2024 Corrected Hearing Request.

Nevertheless, the key information that the NRC had sought to remove from the public record remained widely available in other documents posted on ADAMS and on other non-NRC websites.22 During the summer of 2024, at the ASLBs request, the parties discussed establishing a protective order and nondisclosure declaration. While Duke and the NRC Staff agreed on the terms of an order and declaration that the ASLB subsequently approved, Appellants declined to sign the nondisclosure agreement because (a) the documents were already widely available in the public record, including ADAMS and other non-NRC sources and (b) Appellants believe an open and transparent proceeding is essential.23 Appellants also contended that the NRC had waived its right to claw back the documents it had posted on ADAMS under the judicially-established official acknowledgement doctrine of the FOIA.24 21 2024 Corrected Mitman Report at 1. As observed by Mr. Mitman, the 2011 Safety Evaluation appears to have been removed sometime between the NRCs receipt of Freedom of Information Act (FOIA) request FOIA 2022-000210 (submitted July 28, 2022) and April 26, 2024, shortly before Appellants submitted their Hearing Request. Id.

22 Motion for Document Disclosure at 5-8. See also Mitman 12/16/24 Declaration at 2-3, Mitman Source Document Table at 1-22.

23 Response by Beyond Nuclear and Sierra Club to Joint Motion for Protective Order at 9-10 (July 29, 2024).

24 Id. (citing Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)).

8 In late 2024, at the invitation of the ASLB, Appellants submitted their Document Disclosure Motion. In addition to seeking full disclosure of the Five Documents, Appellants sought disclosure of the Source Documents supporting their 2024 Corrected Hearing Request in order to ensure that the record before the ASLB is meaningful and complete.25 III.

ARGUMENT A. The Redacted Information Must be Released Under the Official Acknowledgment Doctrine.

1. The official acknowledgment doctrine imposes an absolute waiver that can be excused only for inadvertent disclosures.

As a matter of common sense, there is no reason to redact information in an adjudicatory proceeding that is available to any member of the public under FOIA. And that applies to the redacted information here. Whether or not the redacted information qualifies as CEII that might ordinarily be exempt under FOIA Exemption 3, 5 U.S.C. § 552(b)(3), the NRCs prior disclosure of that information waived the agencys right to withhold it under the well-established official acknowledgment doctrine.

As the ASLB noted in its Referral Order, the official acknowledgement 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.26 A three-part test determines whether information is 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 25 Motion for Document Disclosure at 8 (citing Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 N.R.C. 33, 67, 94 (1977)).

26 Referral Order at 7 (quoting ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013)).

9 (3) "the information requested must already have been made public through an official and documented disclosure.27 Here, the ASLB presumed at the outset that Appellants satisfied the first two prongs of the Fitzgibbon test.28 That presumption was plainly correct, since the information Appellants cited was identical to information previously released by the NRC.29 With respect to the third prong, however, the ASLB concluded that the NRC Staff had not, in fact, waived its right to claim that the information is exempt from public disclosure by virtue of the fact 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.30 The ASLB found additional support for its view in the facts that 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 signed until 2018.31 [G]iven the timing of CEIIs statutory and regulatory adoption relative to the NRCs public release of the information, the ASLB found that the NRCs original posting of the key information on ADAMS between 2012 and 2018 hardly seems dispositive of the question of whether the NRC waived its right to claim the information was exempt from disclosure under the FOIA.32 27 Id. (quoting Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)).

28 Referral Order at 27. Appellants satisfaction of the first two prongs of the test is also established in Mitman 12/16/24 Declaration at 1-3 and Mitman Source Document Table at 1-22.

29 See Mitman 12/16/24 Declaration at 1-3 and Mitman Source Document Table at 1-22.

30 Referral Order at 22.

31 Id. at 22-23.

32 Id. at 23.

10 The Boards reasoning is legally erroneous. The doctrine of official acknowledgement is both clear and absolute, establishing only one lawful circumstance when an agencys prior disclosure is not official: when it was inadvertent. Once it has been officially acknowledged, information resides in the public domain.33 Here, as demonstrated in Section 2 below, there was nothing inadvertent about the NRCs prior disclosures. And the claim is all the more implausible given the significant lapse of time between the disclosures between 2012 and 2018 and the attempts to retract it starting circa 2022.34 Further, there can be no doubt that posting information on ADAMS constitutes official acknowledgment, because the NRC itself calls ADAMS the official recordkeeping system, through which the [NRC] provides access to its "libraries" or collections of publicly available documents.35 Further evidence of official and documented disclosure is provided by the fact that some of the documents were publicly disclosed by the NRC in response to a FOIA request and may be found in those disclosures.36 Finally, some of the Source Documents were released publicly by NRC as part of a court settlement.37 All of these actions have been found by the courts to constitute official acknowledgement.38 In this regard, Appellants also note that FERCs 33 Fitzgibbon, 911 F.2d at 766 (Only other documents that have not been disclosed may be withheld based on a FOIA exemption that was not previously applied.).

34 See Board Referral Order at 23 n. 40 (noting that withdrawals apparently began in 2022). It is not even clear when the NRC Staff recognized its supposed mistake. While the record shows the Staff began to claw back information in 2022, Duke argues it did not begin to reclaim potential CEII material until 2024. See Referral Order at 23.

35 Motion for Document Disclosure at 6 (citing https://www.nrc.gov/reading-rm/adams.html.

(Last accessed on Dec. 16, 2024)).

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

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

38 See, e.g., Mobley v. C.I.A., 806 F.3d at 584 (holding that "a FOIA response could satisfy that prong" unless it was based on "a clerical mistake"); Memphis Pub. Co. v. F.B.I., 879 F. Supp. 2d 1, 10-11 (D.D.C. 2012) (agency officially acknowledged information by producing it in response

11 determination that the documents contain CEII does not negate or otherwise invalidate the application of the official acknowledgment doctrine. Indeed, the doctrine applies only to records that are exempt under FOIA, and acts as a waiver of the agencys right to assert that exemption.39 Thus, the Board erred as a matter of law.40

2. Even assuming for purposes of argument that the official acknowledgment doctrine does not apply under some reasonable circumstances, the record shows that the prior releases were knowing and deliberate.

Even assuming for purposes of argument that the official acknowledgement doctrine did not apply under some reasonable circumstances, the record shows that the NRC knowingly and deliberately applied CEII criteria in making pre-2018 disclosures. While the ASLB suggests that the NRC would not have made the pre-2018 disclosures if the Fast Act, FERC implementing to a FOIA request and filing it on the public docket); Dean v. United States Dept of Just., 87 F.

Supp. 3d 318, 321 (D.D.C. 2015) (agency officially acknowledged document by introducing it as a trial exhibit).

Motion for Document Disclosure at 6 (citing https://www.nrc.gov/reading-rm/adams.html. (Last accessed on Dec. 16, 2024)).

39 See New York Times Co. v. FBI, No. 22-CV-3590 (JPO), 2024 WL 3638090, at *3 (S.D.N.Y.

Aug. 1, 2024) (construing appellate cases as holding that official acknowledgment doctrine concerns involved the application of the official whether an agency had waived a FOIA exemptionnot to whether an agency had properly invoked an exemption). And while the NRCs prior releases might not require FERC to release the information, they do bind the NRC itself. See also Knight First Amend. Inst. at Columbia Univ. v. CIA, 11 F.4th 810, 816 (D.C. Cir.

2021) (holding that official acknowledgment doctrine applies to the agency from which the information is sought).

40 Without commenting on their validity, the Referral Order cites several court decisions relied on by Duke to assert that the official acknowledgement doctrine does not apply to these circumstances. Id. at 14. But none of those decisions concerned the official acknowledgment doctrine, and all involved waivers in the course of litigation. See Mobil Oil Corp. v. EPA, 879 F.2d 698, 700 (9th Cir. 1989) (concerning whether disclosure to a third party in a litigation environment constituted a waiver of a FOIA exemption); SEC v. Lavin, 111 F.3d 921, 930 (D.C. Cir. 1997) (concerning waiver of the marital privilege in litigation); Wood v. Milyard, 566 U.S. 463, 474 (2012) (concerning waiver by a state agency of a statute of limitations defense.).

In any event, as discussed in Section 2 below, the circumstances of this proceeding do not reflect anything close to an inadvertent waiver of the NRCs right to withhold CEII. Rather, the NRC has known of and applied that right for at least twenty years.

12 regulations and FERC-NRC MOU had existed then41, the record does not support such a conclusion. To the contrary, the record shows that the NRC has been reviewing documents to determine whether they contained exempt CEII since 2003, and that it has been applying essentially the same definition that appears in the FAST Act and FERCs implementing regulations.

FERCs 2016 regulations implementing the FAST Act contain two definitions of CEII.

The first definition consists of information related to critical energy infrastructure that is designated as critical electric infrastructure information by [FERC] or the Secretary [of Energy].42 The second definition states that CEII is:

Specific engineering, vulnerability, or detailed design information about proposed or existing critical infrastructure that:

(i)

Relates details about the production, generation, transportation, transmission or distribution of energy; (ii)

Could be useful to a person in planning an attack on critical infrastructure; (iii)

Is exempt from mandatory disclosure under the [FOIA], 5 U.S.C. 552; and (iv)

Does not simply give the general location of the critical infrastructure.43 Critical infrastructure is defined as a system or asset of the bulk-power system, whether physical or virtual, the incapacity or destruction of which would negatively affect national security, economic security, public health or safety, or any combination of such matters.44 But FERCs definitions of CEII and critical infrastructure have hardly changed since 2003, when FERC first promulgated regulations for the protection of CEII in response to the 41 Referral Order at 22-23. See also id. at 14 (appearing to credit Dukes assertion that FERC first promulgated regulations for CEII review in 2016.).

42 Final Rule, Regulations Implementing FAST Act Section 61003 - Critical Electric Infrastructure Security, Etc., 81 Fed. Reg. 93,732, 93,749 (Dec. 21, 2016) (18 C.F.R. § 388.113(c)(1)).

43 Id. 81 Fed. Reg. at 93,749 (18 C.F.R. § 388.113(c)(2)).

44 Id., 81 Fed. Reg. at 93,749 (18 C.F.R. § 388.113(c)(4)).

13 terrorist acts committed on September 11, 2001, and the ongoing terrorism threat.45 The 2003 regulations defined CEII as information about proposed or existing critical infrastructure that:

(i)

Relates to the production, generation, transportation, transmission, or distribution of energy; (ii)

Could be useful to a person in planning an attack on critical infrastructure; (iii)

Is exempt from mandatory disclosure under the [FOIA], 5 U.S.C. 552; and (iv)

Does not simply give the location of the critical infrastructure.46 Critical infrastructure was defined as existing and proposed systems and assets, whether physical or virtual, the incapacity or destruction of which would negatively affect security, economic security, public health or safety, or any combination of those matters.47 In promulgating the rule, FERC also declared that Exemption 7 of the FOIA (for certain information compiled for law enforcement purposes) could be invoked for purposes of enforcing the Federal Power Act and the Natural Gas Act.48 NRC documents also show that as far back as 2004, the NRC was reviewing documents requested under the FOIA in a manner consistent with other government agencies that are controlling information related to facilities located near nuclear power reactors.49 This inter-agency cooperation extended to review of CEII:

CEII is a designation defined in the regulations of [FERC] at Title 18 CFR Parts 375 and 388 for information related to energy-related infrastructure. FERC provided additional 45 Final Rule, Critical Energy Infrastructure Information, 68 Fed. Reg. 9857 (Mar. 3, 2003).

46 18 C.F.R. § 388.113(c)(1), 68 Fed. Reg. at 9870.

47 18 C.F.R. § 388.113(c)(2), 68 Fed. Reg. at 9870.

48 68 Fed. Reg. at 9873.

49 SECY-04-0191, Memorandum to the Commissioners from Luis A. Reyes, Executive Director for Operations, re: Withholding Sensitive Unclassified Information Concerning Nuclear Power Reactors from Public Disclosure (Oct. 19, 2004) (ML042310663). The Commission approved SECY-04-0191 in Memorandum to Luis A. Reyes, Executive Director for Operations, to Annette L. Vietti-Cook, Secretary, re: Staff Requirements - SECY-04-0191 -- Withholding Sensitive Unclassified Information Concerning Nuclear Power Reactors from Public Disclosure (Nov. 9, 2004).

14 guidance related to CEII in its rulemaking documents. There is some overlap in the information provided to the NRC by power reactor licensees regarding nearby energy-related facilities (e.g., hydroelectric dams, electric transmission systems) and the information routinely treated as CEII by FERC. Likewise, information related to the location of pipelines may warrant review and withholding per guidance from the Department of Transportation. Most of the information regarding electric transmission systems provided to FERC (through its periodic Form 715) is designated CEII. The NRC staff believes we will need to make public some information on electric transmission systems supporting nuclear power plants since the information is integral to major licensing decisions and related environmental findings.50 Similarly, in 2005, the Staff reported to the Commissioners on the recommendations of a Commission-appointed task force regarding public disclosure of security-related information, including CEII.51 The Staff explained the basis for its view that FERC was justified in applying Exemption 7(f) to information about critical infrastructure such as dams.52 The Staff also asserted that:

As a general matter, NRC will make every effort to follow the guidance of other agencies regarding the control of information related to facilities or activities for which another agency has lead authority, such as pipeline data (usually withheld per the Department of Transportation) and chemical facilities (some data withheld per the Environmental Protection Agency). Information on the transmission grid for electric power, beyond that needed to support major licensing for nuclear power plants and related environmental findings, would generally be withheld in accordance with FERC guidance on critical energy infrastructure information.53 Thus, for at least the past two decades, the NRC has been applying FERC criteria for withholding of CEII to documents in its possession. In fact, prior to 2022, the NRC reviewed a 50 Id. at 6 (emphasis added).

51 SECY-05-0091, Memorandum to the Commissioners from Karen D. Cyr, General Counsel, re:

Task Force Report on Public Disclosure of Security-Related Information (May 18, 2005). The Commissioners approved SECY-05-0091 in SRM-SECY-05-0091, Memorandum from Annette L. Vietti-Cook, Secretary, to Karen K. Cyr, General Counsel re: Task Force Report on Public Disclosure of Security-Related Information (June 30, 2005).

52 Id. at global pages 14-15 (citing, inter alia, 68 Fed. Reg. 9857 (Mar. 3, 2003). (The memorandum is not paginated.).

53 Id. at global page 18 (emphasis added).

15 great deal of information in response to Oconee-related FOIA requests and found that it could be released publicly or with redactions made under Exemption 7(f).54 The record provides no support for the ASLBs conclusion that the pre-2022 disclosures are inconsistent with FERCs current definition of CEII and would not have been made if the FAST Act were in effect at that time.

Finally, inconsistencies in the Staffs recent redactions of Source Documents raise fundamental questions about whether the Staff and/or FERC actually has a clearly-defined view of what information constitutes CEII that could be distinguished from its previous disclosure decisions. For example, in the redacted version of the 2024 Corrected Mitman Report, the Staff has removed a quantitative flood height and information identifying the equipment that would be rendered vulnerable by a flood of that height.55 In comparison, the Staff has redacted the 2011 Safety Evaluation to remove only the quantitative flood height, and not the identification of equipment that would be rendered vulnerable by a flood of that height.56 According to the newly-inserted cover page, the 2011 Safety Evaluation was last reviewed and redacted on August 13, 2024 and the redactions were approved by FERC.

This is but one example of inconsistencies in the recent redactions by the Staff. Others can be found throughout Mr. Mitmans Source Document Table. The inconsistencies undermine the ASLBs determination that the Staffs recent review of previously-disclosed documents 54 See FOIA responses referenced in Mitman Source Document Table, pages 3, 4, 6, 7, 8, 10, 11, 12, 14, 18, 19, 20, and 22. The NRC Staff issued these FOIA responses between 2012 and 2018.

55 See Corrected Mitman 2024 Report at 5, Section 2.3.1.

56 As the 2011 Safety Evaluation continues to state: "This study showed that approximately

[REDACTED] feet of water would inundate the yard area surrounding the standby shutdown facility (SSF). This inundation of the [Oconee] site would render all systems necessary to shut down and maintain all three units in a safe and stable condition inoperable."

16 applies a consistent or identifiably distinct definition of CEII. And the fact that the 2011 Safety Evaluation was recently reviewed by FERC undermines any claim that any of the disclosures to date have been inadvertent.

B. In Addition to the Five Documents, the Commission Should Order the Disclosure of All of the Source Documents Cited by Appellants in Their Hearing Request.

The Board Referral Order focuses only on the Five Documents, consisting of pleadings and counsels statements in an oral argument. Given the dependence of the Appellants arguments on the factual record of safety and environmental regulation at Oconee, this scope is unfairly narrow. If those Source Documents are not publicly available in unredacted form, the public will not have a means of understanding the grave significance of the safety and environmental issues presented by this case.57 It may also place limitations on any future public hearings on the Oconee on Dukes SLR application. Therefore, Petitioners respectfully submit that the Commission should order the disclosure of all of the Source Documents cited by Petitioners, at the same level of disclosure that was provided prior to 2022.

Petitioners respectfully submit that the Commission should take into consideration the fact that most of the exact information that has been redacted by the NRC Staff from the Source Documents referenced in Mr. Mitmans 2024 Report remains widely accessible on Public ADAMS.58 The wide availability of the exact same information in an array of publicly available documents raises serious questions about whether the NRC, after releasing the information 57 See Public Service Co. of New Hampshire, cited above in note 25. See also New York Civ.

Liberties Union v. New York City Transit Auth., 684 F.3d 286, 299 (D.C. Cir. 2011) (quoting Detroit v. Free Press v. Ashcroft, 503 F.3d 681, 710 (6th Cir. 2002) (A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the Framers of our Constitution.).

58 See Mitman Source Document Table.

17 publicly for decades in a wide variety of documents, has the ability to erase it from the public record as the Staff and ASLB seem determined to do.

IV.

CONCLUSION For the foregoing reasons, Appellants request the Commission to apply the judicial official acknowledgement doctrine and order the public release, in full, of the Five Documents.

In addition, the Commission should restore to public ADAMS all of the Source Documents relied on in Appellants Hearing Request, with the minimal level of redactions that were imposed on those documents prior to 2022.

Respectfully submitted,

__/signed electronically by/___

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

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com March 3, 2025

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

)

Duke Energy Carolinas, LLC

)

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

)

Units 1, 2 & 3

)

CERTIFICATE OF SERVICE I certify that on March 3, 2025, I posted INITIAL BRIEF BY BEYOND NUCLEAR AND SIERRA CLUB ON REFERRED QUESTIONS REGARDING OFFICIAL ACKNOWLEDGEMENT DOCTRINE on the NRCs Electronic Information Exchange.

___/signed electronically by/__

Diane Curran

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMISSION In the Matter of

)

Duke Energy Carolinas, LLC

)

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

)

Units 1, 2 & 3

)

CERTIFICATE OF SERVICE I certify that on March 11, 2025, I posted an ERRATA and a corrected version of INITIAL BRIEF BY BEYOND NUCLEAR AND SIERRA CLUB ON REFERRED QUESTIONS REGARDING OFFICIAL ACKNOWLEDGEMENT DOCTRINE on the NRCs Electronic Information Exchange.

___/signed electronically by/__

Diane Curran