ML24239A824

Memorandum and Order (Regarding Nondisclosure Declaration Filings, Reconsideration_Clarification Motions, Nonpublic Document Redaction, and Marking Nonpublic Documents)

ML24239A824
Person / Time
Site:	Oconee
Issue date:	08/26/2024
From:	Bollwerk G Atomic Safety and Licensing Board Panel
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 57084, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2, ASLBP 24-985-03-SLR-BD01
Download: ML24239A824 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

ATOMIC SAFETY AND LICENSING BOARD

Before Administrative Judges:

G. Paul Bollwerk, III, Chair Dr. Sue H. Abreu Dr. Arielle J. Miller

In the Matter of Docket Nos. 50-269-SLR-2, 50-270-SLR-2, and 50-287-SLR-2 DUKE ENERGY CAROLINAS, LLC ASLBP No. 24-985-03-SLR-BD01 (Oconee Nuclear Station, Units 1, 2, and 3)

August 26, 2024

MEMORANDUM AND ORDER (Regarding Nondisclosure Declaration Filings, Reconsideration/Clarification Motions, Nonpublic Document Redaction, and Marking Nonpublic Documents)

In this 10 C.F.R. Part 54 subsequent license renewal proceeding regarding Oconee

Nuclear Station, Units 1, 2, and 3, by issuances dated August 19, 2024, the Licensing Board

entered two protective orders along with two accompanying explanatory orders detailing the

reasons and basis for that action. 1 As part of those issuances, the Board provided applicant

Duke Energy Carolinas, LLC (Duke) and petitioners Beyond Nuclear, Inc., and the Sierra Club,

Inc., (collectively Petitioners) until August 22, 2024, to submit nondisclosure declarations if they

1 See Licensing Board Memorandum and Order (Granting Motion to Enter Protective Order) (Aug. 19, 2024) (unpublished) [hereinafter Board Order Regarding Specific SUNSI];

Licensing Board Memorandum and Order (Protective Order Governing Specific Sensitive Unclassified Non-Safeguards Information [(SUNSI)]) (Aug. 19, 2024) (unpublished) [hereinafter Specific SUNSI Protective Order]; Licensing Board Memorandum and Order (Notice Concerning Ex Parte/Separation of Functions Communications) (Aug. 19, 2024) (unpublished) [hereinafter Board Order Regarding Ex Parte/Separation of Functions Communications]; Licensing Board Memorandum and Order (Protective Order Regarding Ex Parte/Separation of Functions Communications) (Aug. 19, 2024) (unpublished) [hereinafter Ex Parte/Separation of Functions Communications Protective Order].

wanted to be assured of initial access to several nonpublic documents the Board indicated it

planned to place into this proceedings docket under the protective orders. See Board Order

Regarding Specific SUNSI at 13-14; Ex Parte/Separation of Functions Communications

Protective Order ¶ 18. Both Petitioners and Duke made submissions on August 22, 2024. 2 This

issuance provides further information and directions to the participants relative to those filings.

A. Status of Protective Order Implementation

In their August 22, 2024 filing, Petitioners declined to submit nondisclosure declarations

for the three individuals identified in the August 19, 2024 protective orders as eligible for access

to nonpublic documents under the terms of those orders. See Petitioners Notice at 1.

According to Petitioners, they declined to take this action because they determined that their

interest and the general publics interest in maximizing the openness and transparency of the

issues raised by Petitioners in this proceeding would be best served if they do not enter

nondisclosure agreements. Id. They also indicated, however, that they may seek clarification

and/or reconsideration of one or more of the orders regarding their obligations as non-signers of

the nondisclosure declarations. See id. at 2. In contrast, Duke submitted signed nondisclosure

declarations from four individuals. See Duke Letter encls. In addition, however, in the cover

letter accompanying those declarations Duke indicated that it anticipated filing a motion for

clarification regarding certain protective order provisions that it considered ambiguous and

thus was submitting the declarations with a full reservation of rights to revoke and rescind those

Non-Disclosure Declarations, pending resolution of the anticipated motion for clarification. Id.

at 1.

The two protective orders each contain a provision allowing the Board or the

Commission to alter or amend the protec tive order or the accompanying nondisclosure

2 See Notice by [Petitioners] Regarding Nondisclosure Declarations (Aug. 22, 2024)

[hereinafter Petitioners Notice]; Letter from Ryan K. Lighty, Counsel for Duke, to Licensing Board (Aug. 22, 2024) [hereinafter Duke Letter].

declaration, either of their own volition or at the request of the participants to this proceeding.

See Specific SUNSI Protective Order ¶ 13, Ex Parte/Separations of Functions Communications

Protective Order ¶ 11. But neither the two protective orders nor the accompanying

nondisclosure declarations provide for revocation of an executed nondisclosure declaration.

Nonetheless, if a nondisclosure declaration signatory attempted to rescind its agreement to

abide by the provisions of a protective order, a presiding officer seemingly would be compelled

to issue an order terminating that signatorys right of access under the protective order. See

Specific SUNSI Protective Order ¶ 14, Ex Parte/Separations of Functions Communications

Protective Order ¶ 12. That, in turn, would trigger the provisions of the protective order

associated with an access termination date, including the requirements associated with the

destruction, return, and secure maintenance of any nonpublic information to which the signatory

previously had access under the protective order. See Specific SUNSI Protective Order

¶¶ 5, 15; Ex Parte/Separations of Functions Comm unications Protective Order ¶¶ 5, 13. In this

way, the integrity of both nonpublic information already shared under the protective order and

any future nonpublic information submitted under the protective order would be protected.

The scope of Dukes potential clarification motion is unclear at this time. If, however,

Duke (1) cannot subscribe to the description of the potential consequences of seeking to

revoke an executed nondisclosure agreement set forth in the prior paragraph; or (2) plans to

seek clarification of any of the protective order provisions cited in that paragraph, then before

the Board affords Duke access to nonpublic information under the two August 19, 2024

protective orders, it seems appropriate to provide Duke with an opportunity to withdraw its

executed nondisclosure declarations so as to avoid a situation in which Dukes access to

nonpublic information could implicate the access termination provisions of the protective orders.

Accordingly, if the signatories of the Duke nondisclosure declarations want to withdraw those

declarations, they would need to do so on or before noon Eastern Time on Wednesday,

August 28, 2024. Thereafter, the Board will submit to this proceedings docket the nonpublic

information identified in the Boards August 19, 2024 protective order issuances, which will be

served on the NRC Staff and any individuals from Duke or the Petitioners who have publicly

lodged an executed nondisclosure declaration in this proceedings docket. 3 See Board Order

Regarding Specific SUNSI at 14; Board Order Regarding Ex Parte/Separation of Functions

Communications at 2-3.

B. Motions for Reconsideration/Clarification

Relative to the submission of any participant motions for reconsideration and/or

clarification of the August 19, 2024 protective orders and the accompanying attachments, those

motions must be filed on or before Thursday, August 29, 2024. Any answers to such motions

must be submitted on or before Monday, September 9, 2024. Absent leave of the Board, such

motions and answers are subject to the ten (10) page-limit set forth in 10 C.F.R. § 2.323(e) and

the Boards May 8, 2024 initial prehearing order, see Licensing Board Memorandum and Order

(Initial Prehearing Order) (May 8, 2024) at 3 (unpublished). All reconsideration and/or

clarification motions and answers should not include any nonpublic information and should be

filed in this proceedings docket as public documents.

C. Redaction of Nonpublic Documents

Regardless of the possible pendency of any re consideration or clarification motions

associated with the Licensing Boards August 19 protective orders, the Board is not aware of

3 Because of its existing responsibilities under agency regulations and policy regarding SUNSI information that generally do not require the execution and submission of nondisclosure declarations, see Specific SUNSI Protective Or der ¶ 3; Ex Parte/Separations of Functions Communications Protective Order ¶ 3, the NRC Staff already has been given access to any nonpublic documents that may be submitted to the proceedings docket under the August 19, 2024 protective orders. The Board is uncertain if the NRC Staff likewise plans to seek reconsideration and/or clarification of the August 19, 2024 protective orders. Nonetheless, even if the Duke nondisclosure declarations are withdrawn, the Board will still proceed to place the nonpublic information identified in the Boards August 19, 2024 protective order issuances in the proceedings docket, which would be served on the Staff. Unlike Duke, the Staff either generated, identified the contents of, or is already in receipt of each of the nonpublic documents that will be submitted by the Board to the proceedings docket under the August 19, 2024 protective orders.

any reason that would preclude the NRC Staff from undertaking the process of redacting the

nonpublic documents specified in Appendix 1 to the Boards August 19 protective order

regarding specific SUNSI or the ex parte/separation of functions communications associated

with the Boards other August 19, 2024 protective order. Accordingly, within fourteen (14) days

of the date on which those nonpublic documents are placed in this proceedings docket, the

NRC Staff should provide the Board and the othe r participants with a public status report

regarding its efforts to identify what specific portions of these documents it asserts need to be

redacted as nonpublic information, including an estimate of when it will complete this task

relative to both the Appendix 1 and the ex parte/separation of functions documents.

D. Marking Nonpublic Documents Subject to a Protective Order

After additional consideration, in accordance with paragraphs 13 and 11, respectively, of

the Boards August 19 specific SUNSI and ex pa rte/separation of functions communications

protective orders, the Board has decided to amend those orders to revise the marking protocols

for nonpublic documents submitted under each protective order. To make it easier for the

Board, the Office of the Secretary, and the participants to identify to which protective order a

particular nonpublic document pertains, the title parenthetical and paragraph 6.a of each

protective order is amended as follows:

1. For the August 19, 2024 specific SUNSI protective order, (a) on page one, line

thirteen from the top of the page, the title parenthetical is revised to read (Protective Order A

Governing Specific Sensitive; and (b) on page three, the second and third lines of

paragraph 6.a. are revised to read mark ed CONTAINS PROTECTED INFORMATION -

SUBJECT TO PROTECTIVE ORDER A in a c onspicuous manner at the top of every page

(including the first page.

2. For the August 19, 2024 ex parte/separation of functions communications protective

order, (a) on page one, line thirteen from the top of the page, the title parenthetical is revised to

read (Protective Order B Regarding; and (b) on page three, the second and third lines of

- 6 -

paragraph 6.a. are revised to read SUNSI shall be marked CONT AINS PROTECTED

INFORMATION - SUBJECT TO PROTECTIVE ORDE R B in a conspicuous manner at the top

of every page.

Following the Boards resolution of any participant motions for reconsideration and/or

clarification, the Board will determine whether to issue a revised version of the August 19, 2024

protective orders and associated document s or only a listing of any revisions.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

G. Paul Bollwerk, III, Chair ADMINISTRATIVE JUDGE

Rockville, Maryland

August 26, 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

In the Matter of )

)

DUKE ENERGY CAROLINAS, LLC, ) Docket Nos. 50-269 SLR-2

) 50- 270 SLR-2

) 50- 287 SLR-2

)

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

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Regarding Nondisclosure Declaration Filings, Reconsideration/Clarification Motions, Nonpublic Document Redaction, and Marking Nonpublic Documents) have been served upon the following persons by Electronic Information Exchange.

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

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

MEMORANDUM AND ORDER (Regarding Nondisclosure Declaration Filings, Reconsideration/Clarification Motions, Nonpublic Document Redaction, and Marking Nonpublic Documents)

Beyond Nuclear Reactor Oversight Project Duke Energy Corporation 7304 Carroll Avenue #182 525 South Tryon Street Takoma Park, MD 20912 Charlotte, North Carolina 28202 Paul Gunter Tracey M. Leroy E-mail: paul@beyondnuclear.org E-mail: tracey.leroy@duke-energy.com

Counsel for Beyond Nuclear and Sierra Club Harmon, Curran, Spielberg, &

Eisenberg, LLP 1725 DeSales Street, N.W.

Suite 500 Washington, DC 20036 Diane Curran E-mail: dcurran@harmoncurran.com

Office of the Secretary of the Commission

Dated at Rockville, Maryland, this 26th day of August 2024.

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