ML24219A269
| ML24219A269 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 08/06/2024 |
| From: | Bollwerk G Atomic Safety and Licensing Board Panel |
| To: | Beyond Nuclear, Duke Energy Carolinas, NRC/OGC, Sierra Club |
| SECY RAS | |
| References | |
| RAS 57068, 50-270-SLR-2, 50-287-SLR-2, 50-269-SLR-2, ASLBP 24-985-03-SLR-BD01 | |
| Download: ML24219A269 (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 6, 2024
MEMORANDUM (Status of Proceeding Relative to Potential Nonpublic Information)
As reflected in a series of participant filings and Licensing Board issuances over the
past six weeks,1 an issue has arisen in this 10 C.F.R. Part 54 proceeding regarding the
subsequent renewal of the Part 50 operating licenses for the Oconee Nuclear Station,
Units 1, 2, and 3 (ONS) concerning the existence of possibly nonpublic information associated
1 See Licensing Board Memorandum and Order (Regarding Status of Initial Prehearing Conference Transcript) (June 28, 2024) (unpublished); NRC Staff Response to June 28, 2024, Memorandum and Order (July 3, 2024); Licensing Board Memorandum and Order (Regarding NRC Staff Review of Initial Prehearing Conference Transcript) (July 8, 2024) (unpublished)
[hereinafter Board Order Regarding Initial Prehearing Conference Transcript]; Joint Motion for Proposed Protective Order Governing Disclosure of Sensitive Unclassified Non-Safeguards Information and Non-Disclosure Declaration (July 24, 2024) [hereinafter Protective Order Motion]; Licensing Board Memorandum and Order (Regarding Objection to Motion for Entry of a Protective Order) (July 25, 2024) (unpublished) [hereinafter Board Protective Order Objection Issuance]; Response by Beyond Nuclear and Sierra Club to Joint Motion for Protective Order (July 29, 2024) [hereinafter Petitioners Protective Order Response].
with the proceeding.2 This culminated in a July 30, 2024 public prehearing conference with
counsel for the Nuclear Regulatory Commission (NRC) Staff, applicant Duke Energy Carolinas,
LLC (Duke), and petitioners Beyond Nuclear, Inc., and the Sierra Club, Inc., (collectively
Petitioners) that provided the participants with an opportunity to make presentations to the
Board regarding a pending July 24, 2024 NRC Staff motion, in which Duke joined, seeking entry
of a proposed protective order and Petitioners July 29, 2024 response opposing that motion.
See Tr. at 156-58 (Bollwerk).
During that conference, the NRC Staff indicated that the next day the Federal Energy
Regulatory Commission (FERC), with which the Staff has been consulting regarding the
potential nonpublic status of the June 24, 2024 initial prehearing conference transcript, 3 would
be providing more information regarding that consultation process. See Tr. at 180-81 (Woods).
Further, the NRC Staff indicated that by August 2, 2024, it would submit for the public record
another status report concerning FERCs document review. See Tr. at 189, 246 (Woods,
Bollwerk). And in that August 2 status report, the Staff stated that it had conferred with FERC
on August 1-2, 2024, and that it now expected to receive additional information such that it
could provide another status report on the cons ultation process on August 8, 2024. See NRC
2 The information involved appears to be Critical Energy/Electric Infrastructure Information (CEII), which is a category of S ensitive Unclassified Non-Safeguards Information (SUNSI) that pursuant to 10 C.F.R. 2.390 is treated as nonpublic information. See Protective Order Motion, attach. 1, at 1 ([Proposed] Protective Order).
3 Under an existing NRC/FERC memorandum of understanding (MOU), if the NRC identifies potential CEII, it may consult with FERC to obtain a supporting determination that the information in question is CEII. See [MOU] between [NRC] and [FERC] Regarding the Treatment of [CEII] ¶ C (June 2018) (Agencywi de Documents Access and Management System (ADAMS) Accession No. ML18164A182); see also Third Addendum to [MOU] Between [NRC]
and [FERC] Regarding the Treatment of [CEII] (April 2024) (extending term of 2018 MOU for an additional two years) (ADAMS Accession No. ML24099A224). Under existing regulatory provisions, a federal agency may seek a CEII designation consultation with FERC. See 18 C.F.R. § 388.113(a) (stating that any federal agency may take all necessary steps to protect information in its custody or control to ensure electric grid safety and security and that an agency may consult with FERC regarding the treatment or designation of such information);
see also 16 U.S.C. § 824o-1(d)(3) (indicating [i]nformation may be designated by [FERC] or the Secretary [of Energy] as CEII).
Staffs Status Report Regarding Consultations Concerning the Withholding of Nonpublic
Information from Disclosure (Aug. 2, 2024) at 1-2.
Also at the July 30 prehearing conference, the Staff explained that the genesis of this
ongoing FERC consultation process was ONS-relat ed information publicly released by the NRC
as a result of a 2015 Freedom of Information Act (FOIA) request that had again come under
scrutiny because of a 2022 FOIA request that resulted in a previously-released document being
made nonpublic.4 Thereafter, the scope of the NRC Staffs concern about the existence of
potential nonpublic information in ONS-associated public documents expanded because of the
Board-requested review of the June 24, 2024 initial prehearing conference transcript. 5 See Tr.
at 180 (Woods). Moreover, as a consequence of that review, in addition to the June 24 initial
prehearing conference transcript, the Staff apparently has found other, although as yet
unidentified, documents that it considers relating to this proceeding that merit FERC review as
possibly containing nonpublic information. See Tr. at 180, 188 (Woods).
The NRC Staff declared as well that for the Staff to provide any further information about
this potential nonpublic information to the other participants, including possible document
redactions, would require the entry of a protective order covering nonpublic information provided
by the Staff to FERC for CEII review. See Tr. at 187, 190-92, 196, 199, 200-01 (Woods).
Duke agreed. See Tr. at 193-94 (Lighty). Petitioners, on the other hand, maintained that no
protective order was necessary and that the Board should simply await FERCs determinations
regarding the presence of nonpublic information in any Staff-referred documents, which would
4 See Tr. at 179-80 (Woods); see also Board Protective Order Objection Issuance at 5 (outlining Board request for information at July 30, 2024 prehearing conference concerning removal of 2011 NRC safety evaluation from pub lic availability in the agencys ADAMS document repository as described in Petitioners May 1, 2024 corrected hearing request).
5 In this regard, the Board was acting out of an abundance of caution given the Staffs previous indication that information associated with the issues being discussed during the initial prehearing conference might involve nonpublic information. See Tr. at 65-66 (Woods).
provide the Board and the participants with the information they need to understand the
nonpublic information's scope relative to this proceeding. 6
In its August 2, 2024 status report, the Staff acknowledged the additional burden that the
need to treat information as nonpublic was creating for the Board and the other participants.
See August 2, 2023 Staff Status Report at 1. The Board appreciates the Staffs
acknowledgment in this regard. The Board has a duty to draft and issue a decision on
Petitioners hearing request that, to the maximum degree feasible, is based on information that
is part of the public record. At the same time, the Board is faced with the possibility, as-yet
largely undefined, of having to incorporate information necessary to ensure its decision sets
forth an accurate and adequate explanation of the Boards determinations and reasoning that,
because of security concerns, cannot be made part of the public record. At this juncture, trying
to fulfill these arguably conflicting responsibilities places the Board in a somewhat challenging
situation.
Because the only identified item potentia lly containing nonpublic information -- the
June 24, 2024 initial prehearing conference transcript -- has been secured, 7 at this point the
Board prefers to await the Staffs next status report before making any decision about whether
to proceed with a protective order. And while it does so with the hope that the information
provided by the Staff in its next status report will clarify the extent to which such an order is or is
not appropriate in this proceeding, the Board also recognizes that the matter of the proper
6 See Tr. at 198-99 (Curran); see also Petitioners Protective Order Response at 13 (opposing entry of a protective order and urging the Board to postpone public issuance of the decision on Petitioners hearing request until FERC informs the NRC Staff what information associated with this proceeding must be redacted).
7 As the Board indicated in its issuance regarding the June 24 transcript, the transcript promptly was removed from the public portion of the agencys Electronic Hearing Docket; the agencys court reporting service was advised not to make the transcript available to anyone; and the participants were advised to treat the transcript as nonpublic, a request the Board has no reason to believe has not been honored by the participants. See Board Order Regarding Initial Prehearing Conference Transcript at 2-3.
- 5 -
treatment of nonpublic information may take some time to resolve, with whatever impacts that
may have on the conduct of this proceeding.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
________________________________/RA/
G. Paul Bollwerk, III, Chair ADMINISTRATIVE JUDGE
Rockville, Maryland
August 6, 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 (Status of Proceeding Relative to Potential Nonpublic Information) 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 (Status of Proceeding Relative to Potential Nonpublic Information)
Duke Energy Corporation Beyond Nuclear Reactor Oversight Project 525 South Tryon Street 7304 Carroll Avenue #182 Charlotte, North Carolina 28202 Takoma Park, MD 20912 Tracey M. Leroy Paul Gunter E-mail: tracey.leroy@duke- energy.com E-mail: paul@beyondnuclear.org
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 6th day of August 2024.
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