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 DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)

Docket Nos. 50-269-SLR-2, 50-270-SLR-2, and 50-287-SLR-2 ASLBP No. 24-985-03-SLR-BD01 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if they 1 See Licensing Board Memorandum and Order (Granting Motion to Enter Protective Order) (Aug. 19, 2024) (unpublished) [hereinafter Board Order Regarding Specific SUNSI];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(Protective Order Governing Specific Sensitive Unclassified Non-Safeguards Information [(SUNSI)]) (Aug. 19, 2024) (unpublished) [hereinafter Specific SUNSI Protective Order]; Licensing Board Memorandum and Order (Notice Concerning Ex Parte/Separation of Functions Communications) (Aug. 19, 2024) (unpublished) [hereinafter Board Order Regarding Ex Parte/Separation of Functions Communications]; Licensing Board Memorandum and Order (Protective Order Regarding Ex Parte/Separation of Functions Communications) (Aug. 19, 2024) (unpublished) [hereinafter Ex Parte/Separation of Functions Communications Protective Order].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 protective 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 Communications 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 reconsideration 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 Order ¶ 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 other 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 parte/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 marked CONTAINS PROTECTED INFORMATION -

SUBJECT TO PROTECTIVE ORDER A in a conspicuous 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 paragraph 6.a. are revised to read SUNSI shall be marked CONTAINS PROTECTED INFORMATION - SUBJECT TO PROTECTIVE ORDER 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 documents or only a listing of any revisions.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD G. Paul Bollwerk, III, Chair ADMINISTRATIVE JUDGE Rockville, Maryland August 26, 2024

/RA/

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

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DUKE ENERGY CAROLINAS, LLC,

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Docket Nos. 50-269 SLR-2

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50-270 SLR-2

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50-287 SLR-2

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

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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 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 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Washington, DC 20555-0001 G. Paul Bollwerk, III, Chairman, Administrative Judge Dr. Sue H. Abreu, Administrative Judge Dr. Arielle J. Miller, Administrative Judge E-mail: Paul.bollwerk@nrc.gov Sue.abreu@nrc.gov Arielle.miller@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 David Roth Susan H. Vrahoretis Mary Frances Woods Megan Wright Kevin Bernstein Caitlin R. Byrd, Paralegal E-mail: david.roth@nrc.gov susan.vrahoretis@nrc.gov mary.woods@nrc.gov megan.wright@nrc.gov kevin.bernstein@nrc.gov caitlin.byrd@nrc.gov Counsel for Duke Energy Carolinas, LLC Morgan, Lewis & Bockius, LLC 1111 Pennsylvania Ave NW Washington, DC 20004 Paul Bessette Ryan K. Lighty 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) 2 Duke Energy Corporation 525 South Tryon Street Charlotte, North Carolina 28202 Tracey M. Leroy 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 Beyond Nuclear Reactor Oversight Project 7304 Carroll Avenue #182 Takoma Park, MD 20912 Paul Gunter E-mail: paul@beyondnuclear.org Office of the Secretary of the Commission Dated at Rockville, Maryland, this 26th day of August 2024.

KRISTEN HALOJ Digitally signed by KRISTEN HALOJ Date: 2024.08.26 15:24:31

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