ML25247A219

Memorandum and Order (Regarding Protective Order Noncompliance)

ML25247A219
Person / Time
Site:	05000614
Issue date:	09/04/2025
From:	Wolfe S Atomic Safety and Licensing Board Panel
To:	Long Mott Energy, NRC/SECY, San Antonio Bay Estuarine Waterkeeper
SECY RAS
References
RAS 57472, 50-614-CP, ASLBP 25-991-01-CP-BD01
Download: ML25247A219 (0)

Text

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

Stefan R. Wolfe, Chair Nicholas G. Trikouros Dr. David A. Smith In the Matter of LONG MOTT ENERGY, LLC (Long Mott Generating Station)

Docket No. 50-614-CP ASLBP No. 25-991-01-CP-BD01 September 4, 2025 MEMORANDUM AND ORDER (Regarding Protective Order Noncompliance)

On August 25, 2025, Petitioner San Antonio Bay Estuarine Waterkeeper (Petitioner) filed on the nonpublic docket of this 10 C.F.R Part 50 construction permit (CP) proceeding a supplement to its August 11, 2025 intervention petition that referenced and quoted Sensitive Unclassified Non-Safeguards Information (SUNSI) to which certain individuals associated with Petitioner had been granted access.1 Under the terms of the July 22, 2025 Protective Order governing SUNSI access in this proceeding,2 the SUNSI Supplement was not properly marked and purported to be submitted by one of Petitioners counsel who had not executed an affidavit of nondisclosure so as to be permitted to access SUNSI. On August 27, 2025, responding to a 1 See [Petitioners] Supplement to its Petition to Intervene and Request for Hearing Based on

[SUNSI] (Aug. 25, 2025) (nonpublic) [hereinafter SUNSI Supplement)].

2 Chief Administrative Judge (CAJ) Memorandum and Order (Protective Order Governing

[SUNSI]) (July 22, 2025) (unpublished) [hereinafter Protective Order].

notice filed by CP permit applicant Long Mott Energy, LLC (LME),3 Petitioner submitted an explanation as to what happened.4 In this memorandum and order, to prevent reoccurrence, we address the issue of SUNSI marking along with the matter of potential unauthorized SUNSI access.

I. BACKGROUND Pursuant to the provisions of the hearing opportunity notice for this proceeding,5 on June 20, 2025, Petitioner sent a letter to the NRC requesting specific individuals be provided access to certain SUNSI in the LME CP application.6 The list of specific individuals requesting such access included Petitioners counsel Marisa Perales, as well as her law clerk and legal assistant.7 Ms. Claire Krebs, while also an attorney at the firm representing Petitioner and whose name appears on the August 11, 2025 hearing request submitted by Petitioner, was not included in the access request.

On June 30, 2025, the NRC Staff concluded there was an adequate basis for Petitioners access request,8 a determination that was not opposed by LME,9 and on July 22, 2025, the Chief Administrative Judge (CAJ) of the Atomic Safety and Licensing Board Panel issued a 3 See [LME] Notification of Potential Availability of SUNSI to Unauthorized Persons, Protective Order Noncompliance, and Request for Waterkeeper to Provide SUNSI Logs (Aug. 26, 2025)

(nonpublic) [hereinafter LME Noncompliance Notification].

4 See [Petitioner]s Response to [LME]s Notification of Potential Availability of SUNSI to Unauthorized Persons, Protective Order Noncompliance, and Request for [Petitioner] to Provide SUNSI Logs (Aug. 27, 2025) [hereinafter Petitioner Response to Noncompliance Notification].

5 See [LME]; Long Mott Generating Station; [CP] Application, 90 Fed. Reg. 24,428, 24,430 (June 10, 2025).

6 See Letter from Marisa Perales, Counsel for Petitioner, to Office of the Secretary, NRC, and Deputy General Counsel for Licensing, Hearings, and Enforcement, Office of the General Counsel, NRC, at 1 (June 20, 2025).

7 See id. at 2 8 See Letter from Richard Rivera, Project Manager, Office of Nuclear Reactor Regulation, NRC, to Marisa Perales, Counsel for Petitioner, at 4 (June 30, 2025).

9 See Joint Motion for Proposed Protective Order Governing Disclosure of [SUNSI] and Non-Disclosure Agreement (July 21, 2025) at 1 [hereinafter Proposed Protective Order Joint Motion].

protective order granting the requested individuals access to SUNSI.10 On June 29, 2025, LME provided Petitioner with access to the requested SUNSI material.11 As is relevant here, paragraph 2 of the Protective Order listed the specific individuals associated with Petitioner who are authorized to receive SUNSI and required that such individuals sign a non-disclosure agreement prior to receiving SUNSI.12 Further, paragraphs 5 and 6 of the Protective Order directed that such authorized individuals prevent unauthorized disclosure of SUNSI to persons not allowed to receive it.13 Additionally, under paragraph 7 of the Protective Order Petitioner was required to (1) mark each document page that contains SUNSI with a header alerting the reader that the page contains SUNSI; and (2) delineate with double brackets (e.g., (( xxx ))) the specific information within the document that is SUNSI.14 On August 25, 2025, Petitioner filed a nonpublic supplemental pleading raising an additional contention based on the SUNSI it had reviewed.15 The filing referenced and quoted SUNSI, albeit without the SUNSI markings provided for in Protective Order paragraph 7. The document was electronically signed by Ms. Perales but was submitted on behalf of Petitioner by both Ms. Perales and Ms. Krebs, as reflected on the signature blocks of the pleading.16 On August 26, 2025, in a nonpublic filing consistent with Protective Order paragraph 13, LME notified the Board of what it alleged was Petitioners non-compliance with the Protective Order.17 Also, LME indicated that in accordance with Protective Order paragraph 12 it had 10 See Protective Order.

11 See [LME]s Notice of Provision of Access to Specific [SUNSI] (July 29, 2025) at 1.

12 See Protective Order at 1-2.

13 See id. at 3-4.

14 See id. at 4.

15 See SUNSI Supplement at 2.

16 See id. at 7.

17 See LME Noncompliance Notification at 1.

requested that Petitioner provide it with copies of the SUNSI tracking logs Petitioner is required to maintain under that paragraph.18 In an August 27, 2025 public response to LMEs allegations, Petitioner appears to concede that it did not mark its supplemental filing containing SUNSI in accordance with the Protective Order and stated that it would file an amended version by the end of that day. 19 Petitioner further claims that Ms. Krebss name was included on the pleading by error and that there has been no improper SUNSI disclosure.20 Petitioner thus argues that no further action is necessary at this time.21 As promised, later on August 27, 2025, Petitioner refiled its SUNSI Supplement as a nonpublic document.22 The refiled document delineated the parts of the document that Petitioner contends contain SUNSI and removed Ms. Krebss name, but did not include the required header markings alerting the reader that the document contained SUNSI.23 On August 29, 2025, Petitioner filed as a nonpublic document a second corrected SUNSI Supplement that included the proper header markings under the existing language of Protective Order paragraph 7.24 II. DISCUSSION The Board is concerned that Petitioners counsel have approached their obligations under the Protective Order, which they presumably were aware of and understood when they 18 See id.

19 See Petitioner Response to Noncompliance Notification at 4.

20 See id.

21 See id. at 5.

22 See [Petitioners] Corrected Supplement to its Petition to Intervene and Request for Hearing Based on [SUNSI] (Aug. 27, 2025) (nonpublic).

23 See, e.g., id. at 2, 7.

24 See [Petitioner]s Second Corrected Supplement to Its Petition to Intervene and Request for Hearing Based on [SUNSI] (Aug. 29, 2025) at 1 (nonpublic).

proposed its terms,25 without sufficient seriousness. Most glaringly, it took three attempts for Petitioner to properly file its SUNSI supplement with suitable markings that included the appropriate header.

The header requirement is not a mere formality. The header puts all readers on notice that the document contains sensitive material with specific handling, distribution, storage, and disposal requirements. The header reminds each authorized user of the nature of the document so that it can be properly safeguarded. Without the appropriate header a person reviewing the document26 would lack this important notice about the access sensitivity of its contents.27 To minimize the likelihood that this or related problems reoccur,28 while preserving Petitioners access to information it asserts is necessary to make its case, per ordering 25 See Proposed Protective Order Joint Motion at 1 & n.2.

26 While Petitioners SUNSI Supplement was properly filed on the nonpublic docket, in addition to the various individuals associated with Petitioner who have signed a non-disclosure agreement, under Protective Order paragraph 3 that filing remains accessible to NRC employees and contractors. An individual searching the agencys ADAMS database could find this document (perhaps years in the future) and be misled by the lack of markings into mishandling the document.

27 For this reason, in our first ordering paragraph below we direct the Secretary of the Commission to remove and destroy the two improperly marked documents or take such other action as may be necessary to make them inaccessible.

Further in that regard, as reflected in ordering paragraph 5 below, pursuant to Protective Order paragraph 14, the Board is amending Protective Order paragraph 7.b. to revise the language in the third line that now reads the top of every page and each successive page containing such information to read the top of the first page as well as each successive page containing such information. In our view the existing language of paragraph 7.b does not provide adequate notice about a SUNSI documents contents, particularly in an instance when any SUNSI material is not referenced until well into the document.

And because this was not a requirement at the time Petitioners most recent supplement was submitted, to avoid any additional filings by Petitioner in accordance with ordering paragraph 2 below, the Board will make a revision to the first page of that pleading to add the appropriate header language, which it will submit to the Office of the Secretary for substitution in the nonpublic docket of this proceeding for the version of that document filed by Petitioner.

28 We note, for instance, the requirement in Protective Order paragraph 10.e that 14 days after a party pleading or other document is filed in the nonpublic docket of this proceeding, a party must submit to the proceedings public docket a redacted version of the filing, with any redactions requiring LMEs written approval prior to public filing.

paragraph 4 below, we direct that all future nonpublic filings by Petitioner must include a certification by counsel that they have reviewed the Protective Order and that the filing is in compliance with the Protective Orders terms.

Turning to LMEs assertion that unauthorized persons potentially may have accessed SUNSI,29 we note that the only person about which LME makes a specific claim is Ms. Krebs.

And in that regard, we must weigh LMEs reasonable inference that a filing containing SUNSI that states it was submitted by Ms. Krebs was at least reviewed by Ms. Krebs, against Petitioners factual assertion that Ms. Krebss signature block was included in the document by mistake.

In general, it is universally known that statements of attorneys [in briefs] are not evidence.30 Thus, assertions regarding disputed facts should generally be accompanied by an affidavit or similar declaration. Petitioner as part of its supplemental filing did not submit such an affidavit from Ms. Krebs regarding her access to SUNSI information. Nonetheless, in the absence of contravening evidence, the Board accepts Ms. Peraless representation that Ms.

Krebss name was mistakenly included in the signature block and that Ms. Krebs did not play any part in the drafting and filing of the SUNSI Supplement.31 Likewise, in the absence of contravening evidence, at this juncture we accept the representation that no SUNSI information had been shared with any unauthorized person.32 Our rules require that the signature of a person signing a brief reflects that the individual has reviewed the document and that to the best of... her knowledge, information and belief the statements made in [the filing] are true....33 As Ms. Perales almost certainly had personal knowledge of the key factual 29 See LME Noncompliance Notification at 2.

30 Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 853 (7th Cir. 2002).

31 See Petitioner Response to Noncompliance Notification at 3.

32 See id.

33 10 C.F.R. § 2.304(d).

assertions she made in the supplemental filing, and as a licensed attorney with a duty of candor, we accept her representations.

Regarding LMEs request for Petitioners SUNSI access logs, as Petitioner represented in its response,34 Petitioner will provide the requested SUNSI access logs directly to LME (i.e.,

not as a filing in this proceeding) in accordance with Protective Order paragraph 12. Further, in accordance with Protective Order paragraph 13, the participants should promptly raise any further dispute regarding the logs to the Board only to the extent there is an issue that requires the Boards attention or resolution.

Lastly, and relatedly, the Board encourages counsel to work cooperatively and collegially with each other on matters of logistics and administration. There will be time enough for adversarial litigation on substantive issues.

Accordingly, for the foregoing reasons, it is ORDERED that:

1. The Secretary of the Commission shall remove, delete, or otherwise prohibit future access to the improperly marked documents referenced in footnotes 1 and 22 above. These documents also are not subject to the Protective Order paragraph 10.e requirement that a redacted version of a nonpublic submission be placed in the public docket of this proceeding within fourteen days of the date of filing.

2. Contemporaneous with the entry of this issuance, in accordance with footnote 27 above, the Licensing Board has provided to the Office of the Secretary a file that consists of Petitioners August 29, 2025 Second Corrected Supplement, cited in footnote 24 above, to which has been added to the first page the heading Contains Security Related Information -

Subject to NRC Protective Order. This document shall replace the document currently residing 34 See Petitioner Response to Noncompliance Notification at 2.

in the nonpublic portion of the document of this proceeding. Additionally, the following comment will be added to the ADAMS metadata for this document: This document, with the addition of the header Contains Security Related Information - Subject to NRC Protective Order on the first page, is being placed in the docket of this proceeding pursuant to a September 4, 2025 Atomic Safety and Licensing Board Memorandum and Order (MLXXXXXXXXX).35

3. Consistent with paragraphs 1 and 2 above, within two business days from the date of issuance of this order,36 all participants shall take appropriate steps to ensure that any copy of the improperly marked documents referenced in footnotes 1 and 22 above or the document referenced in footnote 24 above that they may have downloaded or otherwise have in their possession has been deleted/destroyed or properly marked consistent with the provisions of Protective Order paragraph 7.b as amended in paragraph 5 below.

4. In all future filings containing SUNSI, Petitioners counsel will include a certification that they have reviewed the Protective Order and that to the best of their knowledge and belief the filing is in compliance with the Protective Orders terms.

5. Protective Order paragraph 7.b. is amended as set forth in footnote 27 above.

35 The ADAMS accession number for this issuance will be incorporated into this metadata comment field once that number is assigned as part of the agencys document processing regimen.

36 For the purpose of this memorandum and order, a business day is any weekday that is not a Federal holiday. See 10 C.F.R. § 2.306(a).

6. Nothing in this issuance alters the schedule for further filings in this proceeding as set forth in the Licensing Boards August 28, 2025, initial prehearing order.37 FOR THE ATOMIC SAFETY AND LICENSING BOARD Stefan R. Wolfe, Chair ADMINISTRATIVE JUDGE Rockville, Maryland September 4, 2025 37 See Licensing Board Memorandum and Order (Initial Prehearing Order) (Aug. 28, 2025) at 2-3 (unpublished).

/RA/

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

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LONG MOTT ENERGY, LLC.

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Docket No. 50-614-CP

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(Construction Permit Application)

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Regarding Protective Order Noncompliance) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E. Roy Hawkens, Chief Administrative Judge Whitlee Dean, Law Clerk Georgia Rock, Law Clerk Email: roy.hawkens@nrc.gov whitlee.dean@nrc.gov georgia.rock@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 Susan Vrahoretis, Esq.

David Roth, Esq.

Julie Ezell, Esq.

Sam Stephens, Esq.

Nick Mertz, Esq.

Stacy Schumann, Team Leader Anne Fream, Paralegal Georgia Hampton, Paralegal Email: susan.vrahoretis@nrc.gov david.roth@nrc.gov julie.ezell@nrc.gov samuel.stephens@nrc.gov nicolas.mertz@nrc.gov stacy.schumann@nrc.gov anne.fream@nrc.gov georgiann.hampton@nrc.gov Counsel for San Antonio Bay Estuarine Waterkeeper Perales, Allmon, & Ice, P.C.

1206 San Antonio St.

Austin, Texas 78701 Marisa Perales, Esq.

Gweneth Lonergan, Lead Legal Asst.

Email: marisa@txenvirolaw.com gwyneth@txenvirolaw.com

Long Mott Energy, LLC., Docket No. 50-614-CP MEMORANDUM AND ORDER (Regarding Protective Order Noncompliance) 2 Counsel for Long Mott Energy, LLC.

Morgan, Lewis, & Bockius, LLP.

1111 Pennsylvania Ave., NW Washington, DC 20004 Ryan K. Lighty, Esq.

Alex Polonsky, Esq.

Email: ryan.lighty@morganlewis.com alex.polonsky@morganlewis.com Office of the Secretary of the Commission Dated at Rockville, Maryland, this 4th day of September 2025.

CLARA SOLA Digitally signed by CLARA SOLA Date: 2025.09.04 14:05:58 -04'00'