ML25087A199

Appellants Responsive Brief

ML25087A199
Person / Time
Site:	Oconee
Issue date:	03/28/2025
From:	Curran D Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP
To:	NRC/OCM
SECY RAS
References
RAS 57328, 50-269-SLR-2, 50-287-SLR-2, 50-270-SLR-2
Download: ML25087A199 (0)

Text

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

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Duke Energy Carolinas, LLC

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

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March 28, 2025 Units 1, 2 & 3

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RESPONSIVE BRIEF BY BEYOND NUCLEAR AND SIERRA CLUB ON REFERRED QUESTIONS 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) hereby respond to the initial briefs submitted by Duke Energy Carolinas LLC (Duke) and the NRC Staff in response to questions referred to the Commission by the Atomic Safety and Licensing Board (ASLB or Board) in Order (Denying Petitioners Document Disclosure Motion and Referring Ruling to the Commission at 25 (Jan. 17, 2025) (unpublished) (ASLB Referral Order)).1 Duke and the Staff argue that application of the Official Acknowledgement Doctrine to Critical Electric/Energy Infrastructure Information (CEII)2 in the Five Documents that are the subject of the ASLBs Referral Order 1 Duke Energy Carolinas, LLCs Initial Views on the Atomic Safety and Licensing Boards Referred Questions as Requested by the Commissions February 13, 2025 Order (March 3, 2025)

(Duke Brief); NRC Staff Initial Briefing on Board Jurisdiction Over CEII Disclosure (March 3, 2025) (Staff Brief). Appellants also submitted a brief: Initial Brief by Beyond Nuclear and Sierra Club on Referred Questions Regarding Official Acknowledgement Doctrine (March 3, 2025, corrected March 11, 2025) (Appellants Initial Brief).

2 Appellants note that the acronym CEII, as used by the Federal Energy Regulatory Commission (FERC) and the NRC, has evolved over time. In its 2003 Regulations, FERC used CEII to abbreviate Critical Energy Infrastructure Information. See Final Rule, Critical Energy Infrastructure Information, 68 Fed. Reg. 9857 (Mar. 3, 2003) (FERC 2003 Regulations). Starting with FERCs promulgation of its 2016 Regulations implementing the FAST Act, FERC and the NRC have used CEII for Critical Electric/Energy Infrastructure Information, of which Critical Energy Infrastructure Information is a subset. See Final Rule,

2 is precluded by the FAST Act, 18 U.S.C. §§ 824o-1(d)(1)(A) and (B); 3 (b) Appellants have failed to satisfy the Official Acknowledgement Doctrine with respect to the CEII contained in the Five Documents; and (c) the ASLB correctly refused to apply the Official Acknowledgement Doctrine to CEII contained in the Source Documents relied on by Appellant in their Hearing Request.4 But their arguments are legally erroneous and factually unsupported.

II.

ARGUMENT A. The FAST Act Does Not Exempt CEII from the Official Acknowledgement Doctrine.

The FAST Act provides that CEII:

(A) Shall be exempt from disclosure under section 552(b)(3) of title 5, United States Code

[the Freedom of Information Act]; and Regulations Implementing FAST Act Section 61003 - Critical Electric Infrastructure Security, Etc., 81 Fed. Reg. 93,732 (Dec. 21, 2016) (FERC 2016 Regulations); 18 C.F.R. § 388.13(c)(1); ASLB Referral Order at 3.

3 The Five Documents consist of:

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 The Source Documents are identified in the footnotes to the 2024 Hearing Request and 2024 Corrected Hearing Request. The NRC Staffs subsequent redactions of the Source Documents are described in the Table of Public Disclosure of Source Documents and Other Redacted Information in Expert Report of Jeffrey T. Mitman (Mitman Source Document Table), which is attached to Motion by Beyond Nuclear and the Sierra Club for Document Disclosures Required by the Official Acknowledgement Doctrine (Dec. 16, 2024) (Document Disclosure Motion). The Mitman Source Document Table and Document Disclosure Motion were supported by the Declaration of Jeffrey T. Mitman Regarding Disclosure History of Redacted Documents (Dec. 16, 2024) (Mitman 12/16/24 Declaration).

3 (B) Shall not be made available by any Federal, State, political subdivision or tribal authority pursuant to any Federal, State, political subdivision or tribal law requiring public disclosure of information or records.5 According to Duke, by explicitly stating that CEII is exempt from public disclosure under the Freedom of Information Act (FOIA), § 824o-1(d)(1)(A) also exempted CEII from the Official Acknowledgement Doctrine.6 That argument is specious. By definition, the Official Acknowledgment Doctrine only applies to information exempt under FOIA.7 The information covered by the Official Acknowledgement Doctrine includes information falling under Exemption 3: the exemption that incorporates other statutes, including the FAST Act.8 Therefore, while 18 U.S.C. § 824o-1(d)(1)(A) establishes a statutory exemption from FOIA disclosure requirements for CEII (Exemption 3), it does not preclude a finding that FERC or the NRC has waived that exemption by intentionally placing information in the public domain.9 Duke also erroneously contends that -- independent of § 824o-1(d)(1)(A) -- § 824o-1(d)(1)(B)s prohibition against disclosure of CEII by federal, state, political subdivision and tribal governments under public disclosure laws governing those entities almost certainly would exempt CEII from the Official Acknowledgement Doctrine because the doctrine is fairly 5 18 U.S.C. §§ 824o-1(d)(1)(A) and (B).

6 Duke Brief at 17 (citing Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015)).

7 Mobley, 806 F.3d at 583 (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)

([W]hen information has been officially acknowledged, its disclosure may be compelled even over an agencys otherwise valid exemption claim.)).

8 See, e.g., ACLU v. CIA, 710 F.3d 422, 426-32 & n.2 (D.C. Cir. 2013) (National Security Act of 1947 and Central Intelligence Agency Act of 1949); Cottone v. Reno, 193 F.3d 550, 554-56 (D.C. Cir. 1999) (Title III of the Omnibus Crime Control and Safe Streets Act); DBW Partners, LLC v. United States Postal Serv., No. 18-cv-3127, 2020 WL 2064082, at *10-11 (D.D.C. Apr.

28, 2020) (Postal Reorganization Act).

9 Mobley, 806 F.3d at 583.

4 characterized as a (judicially-created) public-disclosure law.10 But that is just misdirection.

Duke cites no case ever holding a statute to displace the Official Acknowledgment Doctrine.

And again, there is nothing unique about the FAST Act here, since plenty of other Exemption 3 statutes prohibit disclosure by state and local governments. For example, the D.C. Circuit has held that the Official Acknowledgment Doctrine applies to the Omnibus Crime Control and Safe Streets Act, which prohibits disclosures by state officials.11 Finally, Duke erroneously fails to read § 824o-1(d)(1)(B) in pari materia with § 824o-1(d)(1)(A). Quackenbos v. Allstate Ins. Co., 517 U.S. 706, 711-12 (1996). If Congress had intended to remove CEII entirely from the scope of FOIA, including the Official Acknowledgement Doctrine for waivers of FOIA exemptions, it would have done so in § 824o-1(d)(1)(A), which pertains to FOIA.

B. Appellants Have Satisfied the Official Acknowledgement Doctrine.

As discussed in Appellants Initial Brief, the Official Acknowledgement Doctrine is both clear and absolute, establishing only one lawful circumstance when an agencys prior disclosure is not official: when it was inadvertent or mistaken.12 Once it has been officially acknowledged, information resides in the public domain.13 According to Duke, however, the Official 10 Duke Brief at 15 (emphasis in original).

11 See Cottone v. Reno, 193 F.3d at 553 (citing Title II of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2521). In Lam Lek Chong v. U.S. Drug Enft Admin., 929 F.2d 729, 733 (D.C. Cir. 1991), the D.C. Circuit cited 18 U.S.C. § 2517, which limits what may be disclosed by investigative or law enforcement officer[s]. Investigate or law enforcement officers is defined to include any officer of the United States or of a State or political subdivision thereof 18 U.S.C. § 2510(7).

12 Mobley, 806 F.3d at 584. See also Amiri v. NSF, 664 F.Supp.3d 1, 17 (D.C.D.C. 2021).

13 Appellants Brief at 10 (citing 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.). See also Niagra Mohawk Power Corp. v. United States DOE, 169 F.3d 16, 19 (D.C.

5 Acknowledgement Doctrine is not satisfied here because the NRCs past disclosures were inadvertent or mistaken.14 But Dukes assertions are without merit.

1. Later events do not establish that prior disclosures were mistaken.

Duke first argues that the NRCs previous disclosures were mistaken because the now-redacted information first entered the public domain before CEII was established and before a legal basis for withholding existed.15 But this argument is legally erroneous. Disclosures that were intentional at the time they were made may not be reversed simply because of the passage of subsequent eventa. That is because the Official Acknowledgment Doctrine is based on a recognition that disclosure by the agency would remove any lingering doubts as to the veracity of the information.16 Whether or not an agency would have chosen differently had it had the option, the cat is out of the bag and cannot be put back in.17

2. The NRCs disclosures were not mistaken.

Second, Duke fails to show that the NRCs previous disclosures were mistaken or unintentional at the time the NRC made them. In posting each of the Source Documents on ADAMS, the NRC Staff officially acknowledged that all unredacted portions of each document constituted public information.18 In addition, some had been released in response to FOIA Cir. 1998) (internal citations omitted) ([T]he logic of FOIA compels [this] result: if the identical information is truly public, then enforcement of an exemption cannot fulfill its purpose.).

14 Duke Brief at 17 (citing Mobley, 806 F.3d at 583).

15 Duke Brief at 17.

16 Knight First Amend. Inst. at Columbia Univ. v. Cent. Intel. Agency, 11 F.4th 810, 816 (D.C.

Cir. 2021).

17 Hum. Rights Def. Ctr. v. United States Park Police, 126 F.4th 708, 718-719 (D.C. Cir. 2024)

(holding that FOIA contains no mechanism enabling the government to put the proverbial cat back in the bag.).

18 See Appellants Initial Brief at 10-11.

6 requests or a court settlement, which also constitute official acts of disclosure.19 Duke does not cite any evidence that at the time of these disclosures, the NRC viewed them as unintentional.

The only argument Duke can make is that the NRC Staff changed their minds after passage of the FAST Act and its implementing regulations caused an unspecified change in circumstances.20 As discussed above, however, the mere passage of subsequent events is not relevant to the application of the Official Acknowledgement Doctrine.

In any event, even assuming for purposes of argument that passage of the FAST Act and its implementing regulations could have affected the application of the third prong of the Official Acknowledgement Doctrine,21 Dukes argument is flatly contradicted by the NRC Staffs failure to prospectively redact alleged CEII from Source Documents generated after Congress passed the FAST Act in 2015 and FERCs implementing regulations became effective in early 2017.22 For instance, June of 2018, the NRC Staff issued a post-Fukushima assessment of flooding risks at Oconee.23 Subsequently, the Staff reviewed the June 2018 Staff Assessment for CEII content 19 Id.

20 See Duke Brief at 16 (erroneously arguing that the third prong of the Fitzgibbon test requires consideration of whether [the information] should be withheld.) The Fitzgibbon test contains no such criterion for evaluating whether past disclosures were mistaken.

21 Duke also attributes significance to the Memorandum of Understanding (MOU) between FERC and the NRC of June 2018, i.e., contemporaneous with the June 2018 Staff Assessment.

Duke Brief at 18. But the NRCs legal obligation to protect CEII arose years earlier from the FAST Act. See 18 U.S.C. § 824o-1(d)(1)((B) (requiring that CEII shall not be made available by any federal.. authority.). While the MOU may have added new procedures for consultation between the agencies, the NRCs legal obligation to protect CEII already existed. Further, the MOU treats the Staffs obligation as discretionary, by providing that the NRC Staff may consult with FERCs CEII Coordinator if a FOIA request is made for material the Staff considers to constitute CEII. Id. at 2. Finally, the NRC had agreed years earlier to protect Critical Energy Infrastructure Information, a subset of CEII. See Appellants Initial Brief at 13-14 and notes 49 and 51.

22 See 81 Fed. Reg. at 93,732 (This rule will become effective February 21, 2017.).

23 Letter from NRC to Duke re: Oconee Nuclear Station, Units 1, 2, and 3 - Staff Assessment of Flooding Focused Evaluation (June 18, 2018) (June 2018 Staff Assessment). See also Mitman

7 and released a redacted version of the document under NRC Accession No. ML18141A755.24 Markings in the margin of this document clearly show redactions based on CEII criteria. While the June 2018 Staff Assessment contained redactions, information that was not redacted included the height of the flood wall around the Standby Shutdown Facility (SSF)25 and the effects of flooding on Oconee safety equipment, i.e., disabling of equipment in the auxiliary and turbine buildings.26 This information is identical to information recently redacted in the Five Documents and their Source Documents.

Thus, well after passage of the FAST Act and well after FERCs implementing regulations became effective, the NRC Staff officially disclosed information it now asserts to constitute mistakenly-posted CEII.27 No circumstances have changed since then -- other than the NRCs undoubtedly growing embarrassment caused by increased public attention to the agencys failure to require Duke to take flood protection actions it required in the 2011 Safety Evaluation for adequate protection of public health and safety, but abruptly abandoned without explanation.

Despite the Staffs post hoc efforts to make the 2018 Staff Assessment disappear from the public record, the record shows that the Staffs initial posting of the information was fully-informed.

Source Document Table at 1.

24 Appellants note that the 2018 Staff Assessment was available on ADAMS in 2021 when Appellants prepared their 2021 Hearing Request, and remained on ADAMS until at least December 15, 2024, when Mr. Mitman checked the status of all Source Documents cited in his table in preparation for the December 16 filing of Appellants Motion for Document Disclosures and supporting Source Document Table. Subsequent to Appellants December 16 filing, it was removed from public ADAMS. As of this writing, it has not been restored to public ADAMS.

25 Id., Encl. 2 at 3. While the SSF wall height is not explicitly given, it can easily be calculated from the supplied grade and the protection elevations.

26 Id., Encl. 2 at 4.

27 See Mitman Source Table, passim.

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3. The NRC did not act promptly to claw back previously disclosed information.

According to Duke, the NRC Staffs discovery of its mistaken disclosures occurred in 2024 and resulted in concrete steps to claw back information within 72-hours.28 The only information this argument could conceivably apply to is the quantitative information about flood heights given by Appellants counsel at the June 24, 2024 oral argument before the ASLB, which was withdrawn from the public record within a few days. But Dukes focus on the Five Documents is extremely narrow, given that all of the contested information in the Five Documents comes from Source Documents.29 And Duke fails to address significant respects in which the Staff delayed withdrawals of information from Source Documents by months or years:

On September 27, 2021, Appellants submitted their 2021 Hearing Request and Mitman Expert Report with multiple discussions of and citations to Source Documents containing information the NRC Staff now claims to constitute exempt nonpublic CEII; yet, the Staff made no attempt to withdraw the information from the public record at that time.

In 2022, the ASLB issued LBP-22-1, denying Appellants 2021 Hearing Request. The decision discussed the contents of Source Documents containing information the NRC Staff now claims to constitute exempt nonpublic CEII. Yet, the Staff made no attempt to withdraw the information from the public record at that time. To the contrary, the NRC published LBP-22-1 in a bound volume of NRC Issuances Opinions and Decisions for widespread distribution by the U.S. General Printing Office.30 28 Duke Brief at 18.

29 See Appellants Brief at 16.

30 See 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).

Volume 95 has been removed from ADAMS, but to Appellants knowledge it remains on the shelves of law libraries across the U.S.

9 Appellants submitted their 2024 Hearing Request and Corrected Mitman Expert Report in April of 2024, with citations to the same Source Documents and other documents containing information the NRC Staff now claims to contain exempt nonpublic CEII. Yet, other than removing the 2011 Safety Evaluation from ADAMS, the Staff made no contemporaneous attempt to withdraw the information from the public record.

Thus, by the time the Staff began to withdraw allegedly nonpublic CEII information from the public record, starting with the 2011 Safety Evaluation in 2022 and other information in 2024, the horse was out of the barn and far down the road - because all of the allegedly protected CEII information had been disclosed by the NRC long before and had remained on the public record for years. Time and again, after the passage of the FAST Act, after the promulgation of FERCs implementing regulations, and after the Staff signed the MOU with FERC, the Staff passed up opportunities to withdraw the information from the public record. The Staffs behavior reflects a greater interest in thwarting Appellants efforts to have a transparent airing of safety issues than to protect CEII from inadvertent or mistaken disclosure.31 Finally, the record shows that the attempted clawing-back of information that the NRC Staff did conduct was haphazard and inconsistent, thus undermining claims by Duke and the Staff that the Staff acted reasonably to protect information that truly constituted CEII. As set forth in Appellants Brief at 15, there are gross inconsistencies among documents that have been redacted since 2022 with respect to the redacted content, thus raising questions about whether the Staff or FERC actually has a clearly-defined view of what information constitutes CEII that 31 Duke asserts that the NRC had no obligation to review millions of pages of documents on ADAMS for potential CEII. Duke Brief at 18. The argument merely shows that if information identical to exempt information is truly public, then enforcement of a FOIA exemption cannot fulfill its purpose. Niagra Mohawk Power Corp., 169 F.3d at 19.

10 could be distinguished from its previous disclosure decisions. To this day information redacted in the Five Documents and the associated Source Documents remains publicly available in ADAMS, including floods heights, SSF wall heights, equipment impacted by a Jocassee Dam failure, core damage and large early release and containment failure timing. The inconsistency is graphically illustrated by, for example, the NRC Staffs March 2000 IPEEE Summary, which Appellants cited for a core damage frequency (CDF) estimate.32 In addition to CDF information, the IPEEE Summary contained information regarding the then-current SSF wall height and the flood height relative to that wall height33 - i.e., information the NRC Staff now asserts to constitute exempt protected CEII. However, the IPEEE Summary remains publicly available and unredacted. The continued availability of the information could not reasonably be characterized as inadvertent or mistaken at this late date, and it fatally undermines Dukes claim that the Staff has taken reasonable steps to claw back mistakenly disclosed CEII.

III.

CONCLUSION For the foregoing reasons, Appellants request the Commission to order the public release, in full, the contents of the Five Documents and the Source Documents.

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 28, 2025 32 See 2024 Corrected Mitman Expert Report at 8 n.19 (citing Letter from NRC to Duke, re:

Oconee Nuclear Station, Units 1, 2 and 3 re: Review of Individual Plant Examination of External Events (March 15, 2000) (ML00369439) (IPEEE Summary).

33 Id., Enclosure 1 at 3.

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

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Duke Energy Carolinas, LLC

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

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Units 1, 2 & 3

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CERTIFICATE OF SERVICE I certify that on March 28, 2025, I posted RESPONSIVE 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