ML20293A221

NRC-2016-000665 - Resp 1 - Interim, Agency Records Subject to the Request Are Enclosed

ML20293A221
Person / Time
Issue date:	02/17/2017
From:	Stephanie Blaney Information Services Branch
To:	Vader D - No Known Affiliation
Shared Package
ML20293A219	List: ML20293A221 ML20293A222 ML20293A223
References
FOIA, NRC-2016-000665
Download: ML20293A221 (118)

Text

Dear FOIA Requester:

The FOIA Improvement Act of 2016, which was enacted on June 30, 2016, made several changes to the Freedom of Information Act (FOIA). Federal agencies must revise their FOIA regulations to reflect those changes by December 27, 2016. In addition to revising our regulations, we intend to update the Form 464, which we use to respond to FOIA requests.

In the interim, please see the comment box in Part I.C of the attached Form 464. The comment box includes information related to the recent changes to FOIA that is applicable to your FOIA request, including an updated time period for filing an administrative appeal with the NRC.

Sincerely yours, S ~ 13~ ISi Stephanie Blaney FOIA Officer

NRC FORM 464 Part I U.S. NUCLEAR REGULATORY COMMISSION ,....F_O_IA_ _ _ _ _ __, RESPONSE NUMBER (12-2015)

RESPONSE TO FREEDOM OF 1 2016-0665 11 INFORMATION ACT (FOIA) REQUEST RESPONSE TYPE INTERIM FINAL REQUESTER: DATE:

IDarth Vader 11 0211712017 DESCRIPTION OF REQUESTED RECORDS:

Request for 22 documents by ADAMS Accession Number PART I. - INFORMATION RELEASED Agency records subject to the request are already available in public ADAMS or on microfiche in the NRC Public Document 0 Room.

0 Agency records subject to the request are enclosed.

Records subject to the request that contain information originated by or of interest to another Federal agency have been referred to that agency (see comments section) for a disclosure determination and direct response to you.

We are continuing to process your request.

0 See Comments.

PART I.A -FEES AMOUNT*

D D I

You will be billed by NRC for the amount listed. None. Minimum fee threshold not met.

$ ==::::::JI L!:::::=11

'See Comments for details D You will receive a refund for the amount listed. D Fees waived.

PART I.B - INFORMATION NOT LOCATED OR WITHHELD FROM DISCLOSURE We did not locate any agency records responsive to your request. Note: Agencies may treat three discrete categories of law enforcement and national security records as not subject to the FOIA ("exclusions"). 5 U.S.C. 552(c). This is a standard notification given to all requesters; it should not be taken to mean that any excluded records do, or do not, exist.

[{] We have withheld certain information pursuant to the FOIA exemptions described, and for the reasons stated, in Part II.

Because this is an interim response to your request, you may not appeal at this time. We will notify you of your right to 0 appeal any of the responses we have issued in response to your request when we issue our final determination.

You may appeal this final determination within 30 calendar days of the date of this response b**y***s***endin_ g.. a _lett_er _or_ email to the FOIA Officer, at U.S. Nuclear Regulatory Commission, Washington, D.C. 20555-0001, orFOIA.Resource@nrc.gov.

Please be sure to include on your letter or email that it is a "FOIA Appeal."

PART I.C COMMENTS ( Use attached Comments continuation page if required)

In conformance with the FOIA Improvement Act of 2016, the NRC is informing you that you have the right to seek assistance from the NRC's FOIA Public Liaison.

This interim responses addresses 9 of the records listed in your request. Since the date of your request, these records, except for ML16200A049, have been removed from ADAMS. However, because the NRC was able to locate them by the accession numbers when your request was received, we have processed the records.

MLI6200A049 is publicly available in ADAMS. (Cont.)

SIGNATURE* FREEDOM OF INFO Steyfianie 'Bfaney NRC Form 464 Part I (12-2015) Page 2 of 3

NRC FORM 464 Part I U.S. NUCLEAR REGULATORY COMMISSION FOIA RESPONSE NUMBER (12-2015) 1 2016-0665 11 I RESPONSE TO FREEDOM OF INFORMATION ACT (FOIA) REQUEST Continued RESPONSE TYPE INTERIM FINAL REQUESTER: DATE:

jDarth Vader 11 02111,2017 PART I.C COMMENTS (Continued)

ML16204A00I was determined to be a personal, rather than agency, record. It is an email dated September 14, 2012, not written as part ofNRC assigned duties, to various congressional staff members. Since NRC has not located another copy of this document in any of its record systems, we have determined that the document is a personal record. As such, it is not subject to the FOIA and has not been processed.

ML16216A702 and ML16216A704 were also determined to be personal, rather than agency, records. As such, they are not subject to the FOIA and have not been processed. ML16216A702 is an email exchange among an NRC staff member in his personal capacity (i.e., at a personal email address), his personal attorney, and an attorney at the Department of Justice regarding the terms of a possible resolution to a FOIA lawsuit brought by that staff member.

ML16216A704 appears to be a Linked In page of an individual when he was employed by NRC. Given their personal nature, and since NRC has not located other copies of these records in any of its record systems, we have determined that they are personal records.

ML16216A706 is a copy of a FOIA appeal letter with its enclosures. The letter itself is already publicly available as MLI 3 J 89A005. Another copy of this letter, along with its enclosures, is encJosed with this response.

ML16216A708 is enclosed and released in its entirety.

ML16216A709 is a copy of an email to various NRC officials, including the FOIA Officer at that time, attaching a letter, in which the sender raises concerns about the lack of a timely response to several pending FOIA appeals. It is enclosed with this response.

ML16216A711 is a copy of a briefing package prepared by David Lochbaum of the Union of Concerned Scientists, ahead of meetings that were scheduled with Chairman Bums and Commissioner Baran, which the Commission confirmed was received. It is enclosed.

ML16216A713 is a copy of a FOIA request, FOIA-2013-0262, to which the requester attached a copy of a page from the Commission's 2d Quarter Operating Plan FY-2013. The 2d Quarter Operating Plan was the subject of prior FOIA requests, FOIA-2013-0261, and its appeal, FOfA-2013-0021A, and FOIA-2016-0117. The Plan was denied in full pursuant to FOIA exemption 5. A copy of the FOIA request letter is enclosed with this response; however, the one-page attachment from the 2d Quarter Operating Plan FY-2013, as well as the entire Operating Plan continues to be withheld under FOIA exemption 5.

NRC Form 464 Part I (12-2015} Page 3 of 3

NRC FORM 464 Part II U.S. NUCLEAR REGULATORY COMMISSION FOIA (12-2015}

~c,Vft~G(f(.,.,,O RESPONSE TO FREEDOM OF INFORMATION ACT (FOIA) REQUEST I 2016-0665 I

':/,,1 DATE:

3/4

.,..'il . . ,R' I 02/17/2017 j PART II.A - APPLICABLE EXEMPTIONS Records subject to the request are being withheld in their entirety or in part under the FOIA exemption(s) as indicated below (5 U.S.C. 552(b)).

D Exemption 1: The withheld information is properly classified pursuant to an Executive Order protecting national security information.

Exemption 2: The withheld information relates solely to the internal personnel rules and practices of NRG.

D Exemption 3: The withheld information is specifically exempted from public disclosure by the statute indicated.

D Sections 141-145 of the Atomic Energy Act, which prohibits the disclosure of Restricted Data or Formerly Restricted Data (42 U.S.C. 2161-2165).

Section 147 of the Atomic Energy Act, which prohibits the disclosure of Unclassified Safeguards Information (42 U.S.C. 2167).

41 U.S.C. 4702(b), which prohibits the disclosure of contractor proposals, except when incorporated into the contract between the agency and the submitter of the proposal.

Exemption 4: The withheld information is a trade secret or confidential commercial or financial information that is being withheld for the reason(s) indicated.

The information is considered to be proprietary because it concerns a licensee's or applicant's physical protection or material control and accounting program for special nuclear material pursuant to 10 CFR 2.390(d)(1).

The information is considered to be another type or confidential business (proprietary) information.

The information was submitted by a foreign source and received in confidence pursuant to 10 CFR 2.390(d)(2).

[ { ] Exemption 5: The withheld information consists of interagency or intraagency records that are normally privileged in civil litigation.

[ { ] Deliberative process privilege.

D Attorney work product privilege.

D Attorney-client privilege.

Exemption 6: The withheld information from a personnel, medical, or similar file, is exempted from public disclosure because its disclosure would result in a clearly unwarranted invasion of personal privacy.

[ { ] Exemption 7: The withheld information consists of records compiled for law enforcement purposes and is being withheld for the reason(s) indicated.

D (A) Disclosure could reasonably be expected to interfere with an open enforcement proceeding.

(C) Disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy.

(D) The information consists of names and other information the disclosure of which could reasonably be expected to reveal identities of confidential sources.

(E) Disclosure would reveal techniques and procedures for law enforcement investigations or prosecutions, or guidelines that could reasonably be expected to risk circumvention of the law.

[ { ] (F) Disclosure could reasonably be expected to endanger the life or physical safety of an individual.

D Other I I PART 11.8 ** DENYING OFFICIALS In accordance with 10 CFR 9.25(g) and 9.25(h) of the U.S. Nuclear Regulatory Commission regulations, the official(s) listed below have made the determination to withhold certain information responsive to your request AP PELLATE OFFICIAL DENYING OFFICIAL TITLE/OFFICE RECORDS DENIED EDO SECY IStephanie Blaney 11 FOTA Officer/OCIO 11 ML16216A711 I

IRochelle Bavol 11 Executive Assistant to the SECY to COMM II I pg ML162l6A713 (2d Q FY13 Oper. Plan)

I 0 I 11 I Appeals must be made in writing within 30 calendar days of the date of this response by sending a letter or email to the FOIA Officer, at U.S. Nuclear Regulatory Commission, Washington, D.C. 20555-0001, or FOIA.Resource@nrc.gov. Please be sure to Include on your letter or email that it is a "FOIA Appeal."

NRC Form 464 Part II (12-2015) Page 1 of 1

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From: Lawrence Criscione < lscriscione@hot mail.com > jl l iM J*..d ' * ~ -~ :' - - -'1. {c_(, v,t; 7

Sent: Tuesday, June 11, 2013 10:32 PM ~ s ... " ~J,,-- (:)()() &'

To: Sealing, Donna; FOIA Resource * * --

• Cc: tomd@whistleblower org; Billie Garde; sshepherd@cliffordgarde.com; Dave Lochbaum; Tom Zeller. jruch@peer.org; kdouglas@peer.org; Louis Clark; cmcmullen@osc.gov; clerner@osc.gov; Michal Freedhoff; Houlihan Bill FOJA Request for November 15. 2012 submissions of FOIA 201Hl008/13 and January 25, 2013 "Referral Package" mentioned in ML13149A079 Ms. Sealing:

Please process this email as a Freedom of Information Act request.

ML13149A079, "Second Quarter Operating Plan FY-2013", contains a 23*page table which stretches from page 12 to page 34. The table does not have a t it le but appears to be a listing of all open FOIA requests in the offices of the Commission (although this might not be the case since FOIA request 2013-0127 and FOIA appeal 2013-0l0A are not on the list).

On page 25 of the table there are two entries for FOIA 2013-0008. One of the entries shows that FOIA 2013-0008 was received by the NRC on October 10, 2012 and provided to the SECY/Commission that same day. The entry further shows that the SECY completed t he processing of FOIA 2013-0008 on October 26, 2012 and provided their final submittal to the FOIA office on November 15, 2012.

FOIA 2013-0008 is the tracking number which the NRC assigned to the October 9, 2012 (ML12283A329) FOIA request from Dave lochbaum in which he requested one document:

Letter doted September 18, 2012, from NRC staffer Lawrence Criscione to NRC Chairman Alison Macfarlane about nuclear plant vulnerabilities to flooding.

I have not seen the acknowledgement letter which we provided to Mr. Lochbaum, but I assume that - like all our acknowledgement letters in the past two years - we took advantage of the March 11, 2011 earthquake and tsunami in Japan to allot ourselves an extra 10 working days to process Dave's FOIA. Note that the SECY completed the FOIA request by October 26, 2012 ( 12 working days after receiving it) so the legally mandated 20 working day window could have easily been met. But assuming we gave ourselves the extra 10 working days, the 30 day window for processing Dave's FOIA would have expired on November 21, 2012. Since the SECY submitted the requested document t o the FOIA office by November 15, 2012, this should have allowed plenty of time to get Mr. Lochbaum his requested document within the legally required time frame prescribed in the Freedom of Information Act.

As with most FOIA's at the NRC, the 20 & 30 working day windows came and went without any documents being provided. Then, after waiting 17 weeks, on February 6, 2013 we provided Mr. Lochbaum a partial response to his FOIA request (Ml13039A087). This "partial response" did not contain the one and only document requested by Mr. Lochbaum, but instead contained t hree documents whfch had been released by NRR under previous FOIA requests and two other NRR documents w hlch had been sent to the Chairman in the same email that had transmitted the requested letter. Since t he SECY had completed the processing of the

2012-09-18 letter to the Chairman on October 26, 2012, it is not understood why this letter was not included in the first partial response sent to Mr. Lochbaum.

On February 20, 2013 we sent Dave a second partial response IML13051A897) and on April 9, 2013 we sent him a third (ML13099A248). As with the first partial response, the one and only document he had actually requested (i.e. the 2012-09-18 letter to the N RC Chairman) was not included despite it having been processed by the SECY by October 26, 2012. In fact, after nearly nine months (167 working days) we have still not provided Mr. Lochbaum the sole document he requested under FOIA 2013-0008.

On page 26 of the table in Ml13149A079, there is an entry for FOIA 2013-0013 showing that it was received by the NRC on October 16, 2012 and provided to the Commission SECY that same day. The entry further shows that the SECY completed the processing of FOIA 2013-0013 on October 26, 2012 and provided their final submittal to the FOIA office on November 15, 2012.

FOIA 2013-0013 is the tracking number which the NRC assigned to the October 16, 2012 {Mll2290A070) FOIA request by Tom Zeller in which he requested two documents:

The September lB~ ZOJZ email and letter from Lawrence Criscione to Chairman Macfarlane regarding the Lake Jacassee Dam and the threat to Oconee Nuclear Station.

At the time, Mr. Zeller was working on an article regarding the NRC's handling of the flooding concerns which a catastrophic failure of the Lake Jocassee Dam poses to the three reactors of the Oconee Nuclear Station and he thusly requested e,cpedited processing of his request. I am unaware of whether or not we formally denied Tom's request for e,cpedited processing, but we certainly did not honor it. After 162 working days, we have still not provided Mr. Zeller the two documents for which he requested e,cpedited processing.

On February 27, 2013 (ML13064A211) we provided Mr. Zeller a "partial response" which contained a listing of seven records which had already been released to others under separate FOIA requests. None of the documents provided had been specifically requested under FOIA 2012-0013 and the two documents which Mr. Zeller had requested were absent* despite having been provided to the NRC's FOIA office by the SECY on October 26, 2012.

On April 18, 2013 (ML131060026) we provided Mr. Zeller with a second partial response which again did not contain either of the two documents specifically requested under FOIA 2013-0013.

On page 25 of the table in ML13149A079, there is an entry showing that FOIA 2013-0008 was referred from the NRC FOIA Office back to the SECY on January 25, 2013. This was just over one week after my very confrontational January 17. 2013 interrogation by two special agents of the NRC's Office of the Inspector General regarding to whom in Congress I copied my 2012-09-18 letter and whether or not my actions constituted a federal felony under 18 USC§ 1030. The entry further shows that the "Referral Package" was sent to the SECY/Commission on February 1, 2013, was due back to the FOIA office on February 8, 2013, but after having the referral over 18 weeks has yet to be processed by the Office of the Chairman.

Pursuant to the Freedom of Information Act (5 USC§ 552) and NRC regulations (10 CFR § 9.25) I request that within 20 working days the NRC either provide me the following documents or provide me an e,cplanation as to what exemptions authorize their withholding:

1. Any and all correspondence, emails, memos and notes regarding the Office of the Chairman's November 15, 2012 submittal of FOIA package 2013-0008 and 2013-0013 to the NRC FOIA Office, including the versions of the 2012-09-18 email and letter which were submitted (please refer to the entries regarding incoming FOIA requests for 2013-0008 and 2013-0013 on pages 25 and 26 of M Ll3149A079).

2. Any and all correspondence, emails, memos and notes regarding the "Referral Package" of FOIA 2013-0008 which was received from the FOIA Office on January 25, 2013 and sent to the SECY/Commission on February l, 2013 (please refer to the last entry on the table of p. 25 of ML13149A079).

Although expedited processing might be justified, I am not requesting any special treatment of this FOIA request. All I ask is that you follow federal law and our own NRC regulations and either provide me unredacted versions of the requested documents within 20 working days (i.e. by July 10, 2013) or provide me with an explanation as to why the requested documents cannot be provided. I realize that the NRC is blanketly extending all FOIA requests due to the March 11, 2011 earthquake and tsunami that occurred in Japan, butt hardly think that issue will legitimately prevent you from meeting the 20 working day allotment for this request.

I do not intend to pay any fees to obtain the documents above. I believe I have aptly described what I am seeking and your search time should be minimal. Additionally, the information requested pertains to three apparently high profile and contentious FOIA requests and at least one FOIA appeal and thus these documents should be readily obtained by the involved parties.

Describe the purpose for which you Intend to use the requested Information.

Like Mr. Lochbaum and Mr. Zeller, I two have an outstanding FOIA request for my 2012-09-18 email and letter to the NRC Chairman {FOIA 2013-0127). My request (February 13, 2013) is nearly four months old and the appeal of that request (FOIA 2013-0l0A submitted on March 29, 2013) is 51 working days old, yet I still have not received the two documents I requested. I need the documents requested in items 1 and 2 above so that r might use them in a law suit I am preparing concerning some of my overdue FOIA appeals and so that I might use them in filling out an OSC Form 12 regarding the NRC's blatant violation of the time commitments prescribed in the Freedom of Information Act.

Explain the extent to which you will extrad and analyze the substantive content of the requested records.

I will thoroughly read every word of every document you provide me so that I might understand the NRC's rationale for not following its legally required time commitments under the FOIA and its own regulations with regard to its processing of FOIA 2013-0008, 2013-0013, 2013-0127 and 2013-0l0A.

Describe the nature of the specific adivlty or research In which you will use the requested records and the specific qualifications you possess to utilize information for the Intended purpose In such a way that It will contribute to public understanding.

I hold a Professional Engineer's (PE) license in the State of Iowa in the Nuclear Engineering Branch. I am a former NRC licensed Senior Reactor Operator (SRO) and was formerly a Prospective Nuclear Engineer Officer (PNEO) in the US Navy's submarine force. I am a Risk Professional and current work as a Risk & Reliability Engineer in the NRC's Office of Nuclear Regulatory Research (RES). I intend to use these documents to gain an understanding of what, if anything, is preventing the NRC from meeting its legally required time commitments for processing FOIA 2013-0008, 2013-0013, 2013-0127 and 2013-0l0A. I will share my findings with Mr.

lochbaum of the Union of Concerned Scientists, Mr. Zeller of the Huffington Post, Mr. Ruch of Public Employees for Environmental Responsibility, Mr. Devine of the Government Accountabrlity Project and with 3

any other member of the public, member of the press, or member of a public watchdog group who expresses interest in the matter.

Describe the Hkely impact on the public's understanding of the subjed, compared to the level of public understanding of the subject before disclosure of the requested information.

I think that when the public realizes why the NRC is violating their Freedom of Information Act required time commitments, they will have a better understanding that the NRC's Office of the Chairman has been keeping important information from them in order to protect her image.

Describe the size and nature of the public segment whose understanding will be increased by disclosing the requested information.

Possibly a dozen individuals due to my efforts.

Describe the means by which you Intend to disseminate the requested information to the general public.

I do not intend to directly disseminate the requested information to the general public. I intend file an OSC Form 12 and to file a lawsuit in FOIA court. I intend to share the documents pertaining to my OSC disclosure and lawsuit with Mr. Zeller, Mr. Lochbaum, and anyone else interested.

Indicate whether you will provide public access to the requested information free of charge or in return for an access or publication fee.

I do not intend to provide the public any access to the requested information either free or for a fee. I intend for the NRC to disseminate this information free of charge by making it publicly available in ADAMS.

Describe any commercial or private Interest that you or any other party may have in the requested records.

I have no commercial interest in these records. My private interest is I am a believer in Open Government and am being harassed by the NRC's Office of the Inspector General for providing "Official Use Only - Security*

Related Information" to Congressional staffers and the US Special Counsel.

There are some within the NRC who might claim this FOIA request contains "allegations". This email is merely a request for documents under the Freedom of Information Act. Although I believe the NRC Office of the Chairman has been stonewalling the release of my 2012-09-18 letter to the Chairman, the intent of this email is not to make that allegation. The purpose of this FOIA request is to obtain documents to refine my understanding of why my 2012-09-18 letter has not yet been released. Once I believe I have a sufficient understanding of why the NRC is disregarding the Freedom of Information Act time limits with regard to FOIA 2013-0008, 2013-0013, 2013-0127 and 2013-0l0A, I intend to make an allegation to the US Office of the Special Counsel via an OSC Form 12 disclosure. Please process this email as a request under the Freedom of Information Act and do not waste the taxpayers' money by submitting yet another allegation to the Office of the Inspector General.

I work in Rockville, MO and make it home to Illinois infrequently. Please correspond with me via email regarding this matter or call/text me at 573-230-3959. If there are documents you must provide to me as hardcopies, please contact me by phone or email and I will come by the FOIA desk to pick them up. I will pay whatever fees are required to obtain the requested document.

V/r, Larry Criscione 573-230-3959 5

Page 6 or 6 Withheld pl1rsuant to exemption (b)(5) or the Freedom or Information and Privacy Act

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--L.: l Public Employees for E vlruaent I Respnslblllty 2000 P Street, NW* Suite 240

• Washin11ton, D.C. 20036

• 202-265*PEER(7337t

• lax: 202*265-4192 1-11111: lntoOpeer.01g

• website: www.peer.org July 5, 2013 Ms. Donna L. Sealing FOIA/Privacy Act Officer Office of Infonnation Services U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 CC: Mr. Bill Borchardt, Executive Director for Operations Ms. Linda Kilgore, FOIA/Privacy Act Specialist RE: Appeal From Initial Decision; FOIA/PA-2013-00239

Dear Ms. Sealing:

Public Employees for Environmental Responsibility (PEER) hereby appeals the U.S.

Nuclear Regulatory Commission's (NRC) JW1e I 0, 2013 response to PEER's Freedom of Information Act (FOIA) request submitted on May 7, 2013 and assigned reference number FOIAIPA-2013-00239 (see attachment A).

PEER's FOIA request seeks records relating to the risk of inundation from dam failure to operating commercial nuclear reactors. Specifically, we requested the following eleven records:

• MLI 01900305, Identification of a Generic External Flooding Issue Due to Potential Dam Failures (Agency Response "Accession No. ML13039A086");

• MLJ 00780084, Generic Failure Rate Evaluation for Jocassee Dam Risk Analysis (Agency Response "Accession No. ML13039A084");

• ML09ll70104, Oconee Nuclear Station, Units 1, 2 And 3 - Non--concurrence on Evaluation of Duke Energy Carolinas, LLC September 26, 2008, Response to Nuclear Regulatory Commission Letter Dated August 15, 2008 Related to External Flooding (Agency Response "Accession No. MLJ 3106A 168");

• MLI O1610083, Oconee Nuclear Station, Units I, 2, and 3, - External Flood Commitments (Agency Response "Accession No. ML101610083");

Field Offices: California

• Florida

• New England

• New Jersey* Refuge Keeper

• Rocky Mountain

• Southwest

• Tennessee

• ML081640244, Information Request Pursuant to 10 CFR 50.54(F) Related to External Flooding, Including Failure of the Jocassee Dam at Oconee Nuclear Station, Units 1, 2, and 3 (TAC Nos. MD8224, MD8225, and MD8226) (Agency Response "Accession no.

MLI2363Al32");

• ML081750106, Oconee, Units I, 2 and 3 -Response to 10 CFR 50.54(t) Request 1 (Agency Response "Accession No. MLI2363A129);

• ML090570779, Oconee Nuclear Station Units 1, 2, and 3, Evaluation of Duke Energy Carolinas September 26, 2008, Response to External Flooding, Including Failure of the Jocassee Dam (Agency Response "Accession No. ML12363A133");

• MLI I 1460063, Oconee Nuclear Site, Units I, 2, and 3. Response to Confirmatory Action Letter (CAL) 2-10-003, dated April 29,2011 (Agency Response "Accession No. MLl 3099A247");

• MLI 10740482, Analysis Report for the Proposed Generic Issue on Flooding of Nuclear Power Plant Sites Following Upstream Dam Failures;

• The 19- page letter from NRC employee Lawrence Criscione to the NRC Chairman dated September 18, 2012; and

• The email dated September 18, 2012 from Lawrence Criscione to the NRC Chairman.

NRC acknowledged receipt of PEER's FOIA request ("request") in a letter dated May 7, 2013 (see attachment 8). NRC's partial response ("response"), dated June 10, 2013, includes one complete record, seven partial records, and a statement that three records ..will be addressed in a later response" (see attachment C}.

PEER hereby appeals the withholding of responsive material for the following reasons:

l. NRC fails to provide adequate justification for withholding the material or a Vaughn index of the withheld records (or withheld portions)2;

2. NRC fails to satisfy the basic Exemption 7 thresholds;

3. NRC fails to satisfy the specific Exemption 7(F) threshold;

4. NRC fails to explain how a portion of a record could be "outside of scope" of PEER's request;

5. NRC fails to abide by statutory time limits;

6. NRC's previously disclosed records cannot be withheld; and

7. NRC fails to address segregability.

1 Original request listed "ML0S 1750 I 06." Upon review. PEER noticed a possible typo. The original request likely should have read "ML082l750106." However, PEER believes that the correct document was provided in the response.

2 References to "withheld records" are to mean any record withheld in full or in part.

2

1. NRC fails to inform the requester of the reason(s) for denial, justify its withholding, and provide itemized descriptions or a Vaugl,n index of the withheld records.3 As a fundamental matter, NRC withholds many pages of records without providing any context, explanation or description of the withheld infonnation. NRC has simply failed to meet its heavy burden to justify redacting the infonnation. A decision to deny a request must infonn the requester of the reasons for denial. See S U.S.C. § 552(a)(6)(A)(i) (requiring agencies to "immediately notify the [requester] of such detennination and the reasons therefor"). NRC's response is a boilerplate fonn that merely quotes the statutory language. Parroting the statutory language is not a justifiable "reason" for withholding records as it does not demonstrate how the records are properly exempt under FOIA.

Additionally, PEER's request clearly states:

For any documents or portions of documents that you block release due to specific exemption(s) from the requirements of the [FOIA], please provide an index itemizing and describing the documents or portions of documents withheld.

The index should, pursuant to the holding of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) cert. denied, 415 U.S. 977 [1974]), provide a detailed justification for claiming a particular exemption that explains why each such exemption applies to the document or portion of a document withheld.

Despite PEER's written request for descriptions of the withheld information and the statutory requirement to provide "reasons" for withholding infonnation, NRC makes no attempt to provide PEER with such information.

2. NRC fails to satisfy basic EJ:emption 7 threshold requirements because NRC's response fails to indicate its "law enforcement purpose" and fails to identify a law enforcement purpose for which the records were "compiled."4 3 Section 1 applies to all withheld records (or portions) 4 Section 2 applies to all records withheld pursuant to Exemption 7(F)

- MLIOJ900305, Identification ofa Generic Extemal Flooding Issue Due to Potential Dam Failures (Agency Response "Accession No. ML13039A086");

- ML\00780084, Generic Failure Rate Evaluation for Jocassee Dam Risk Analysis (Agency Response "Accession No. MLl3039A084");

- ML091170I04, Oconee Nuclear Station, Units\, 2 and 3 - Non-concurrence on Evaluation of Duke Energy Carolinas, LLC September 26, 2008, Response to Nuclear Regulatory Commission Letter Dated August 15, 2008 Related lo Extemal Flooding (Agency Response "Accession No. ML13l06A168");

- ML08 l 640244, Infonnation Request Pursuant to 10 CFR S0.S4(F) Related to External Flooding, Including Failure of the Jocassee Dam at Oconee NllClear Station, Units !, 2, and 3 (TAC Nos. MD8224, MD822S, and MD8226) (Agency Response "Accession no. MLJ2363Al32");

~ ML081750106, Oconee, Units I, 2 and 3 - Response to 10 CFR50.54(f) Request (Agency Response "Accession No. MLl2363Al29");

- ML090S70779, Oconee Nuclear Station Units I, 2, and 3, Evaluation of Duke Energy Carolinas September 26, 2008, Response lo External Flooding, Including Failure of the Jocassee Dam (Agency Response "Accession No. MLJ2363A 133"); and 3

Pursuant to 5 U.S.C. § 552(b)(7) ("Exemption 7"), NRC withholds portions of seven requested records. Exemption 7 allows an agency to withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records" fit within one of Exemption Ts six subparts. 5 U.S.C. § 552(bX7)(A)-(F).

Accordingly, as a preliminary matter, NRC "must meet the threshold requirements of Exemption 7 before withholding requested documents on the basis of any of its subparts." Pratt v_ Webster, 673 F.2d 408,416 (D.C. Cir. 1982). The Exemption 7 threshold requirements involve two steps.

First, an agency claiming Exemption 7 must demonstrate that the agency serves a "law enforcement purpose." See Schoenman v. FBI. 575 F. Supp. 2d 136, 163 (D.D.C. 2008) (finding that agency "failed to establish" its law enforcement purpose and consequently failed to meet the Exemption 7 threshold requirement). Cf Pratt, 673 F.2d at 414 (stating that "law enforcement purpose" not only describes the type ofagency, but also functions as a condition on the use of the exemption) (internal quotes omitted).

NRC's response fails to meet this threshold because the response makes no mention of the agency's "law enforcement purpose" let alone demonstrates that it has one. Even ifNRC could demonstrate a legitimate law enforcement purpose under Exemption 7(F), it would still be subject to a more rigorous standard when evaluating this threshold requirement. Tax Analysts v.

IRS, 294 F.3d 71, 77 (D.C. Cir. 2002). While an agency whose primary function is law enforcement must establish only a ..rational nexus" between the records it seeks to withhold and "its authority to enforce a statute or regulation," Abdelfauah v. US. Dep't of Homeland Sec., 488 F.3d 178, 186 (3d Cir. 2007), an agency with mixed functions is subject to a more "exacting standard" in showing the coMection between the withheld documents and its law enforcement functions. Tax Analysis, 294 F.3d at 77. Such an agency "must demonstrate that it had a purpose falling within its sphere of enforcement authority in compiling the particular document."

Church of Scientology v. Department of the Army, 611 F.2d 738,748 (9th Cir. 1980). NRC has not demonstrated the fundamental requirement of Exemption 7 that it have a "law enforcement purpose," and therefore fails to meet its burden to justify redacting the information. It thus also cannot meet the heightened level of scrutiny applicable to mixed function agencies.

Second, an agency claiming Exemption 7 must show that the records at issue were compiled to enforce a statute or regulation within its law enforcement purpose. See Birch v.

USPS, 803 F.2d 1206, 1210-11 (D.C. Cir. 1986) (explaining that threshold is met where the agency demonstrates that records were compiled pursuant to the enforcement of laws within the statutory authority of the agency) (emphasis added). NRC fails to satisfy this threshold requirement because it withholds information without any accompanying explanation as to how or why the infonnation was compiled to enforce a statute or regulation within its law enforcement purpose. See Anlonelli v. ATF, 555 F. Supp. 2d 16, 24 (D.D.C. 2008) (ruling in favor of plaintiff-requester where agency attempted to withhold information under Exemption 7 but failed to demonstrate that records were "complied for law enforcement purpose"); United Am. Fin. v. Polter, 531 F. Supp. 2d 29, 46 (D.D.C. 2008) (finding that, as threshold matter, agency must explain that records were compiled for law enforcement purposes). Indeed, since

- ML\ I 1460063, Oconee Nuclear Site, Units I, 2, and 3. Response to Continnatory Action Letter (CAL) 2 003, dated April 29, 2011 (Agency Response "Accession No. MLl3099A247).

4

NRC did not show that it had a law enforcement function, it would be hard to demonstrate that the sought records were specifically compiled for a law enforcement purpose.

Some of the sought records are from NRC's research department, which, by its nature is not an enforcement body and thus any records from it cannot be compiled for law enforcement purposes. Other records appear to be Office of Nuclear Reactor Regulation ("NRR") records, not the Office of Investigations or Office of Inspector General (the NRC arms with plausible law enforcement functions). It is doubtful that the records at issue here were compiled for a specific law enforcement purpose since NRR has not been shown to have a law enforcement purpose to which the records specifically relate. Moreover, the theoretical threat posed to reactors by natural disasters or structural failures outside of NRC jurisdiction are beyond the scope of any law enforcement proceeding.

In sum, to properly assert Exemption 7, NRC must provide a specific explanation as to the agency's law enforcement purpose and the specific law enforcement action for which the records were compiled. See Miller v. DOJ, 562 F. Supp. 2d 82, 118 (D.D.C. 2008) (finding Exemption 7 threshold cannot be satisfied when agency neither explains the ..manner and circumstances" under which the records were compiled nor links the records to a law enforcement purpose). For its failure to meet, or even address, any of the Exemption 7 threshold requirements, NRC fails to justify withholding under Exemption 7 and all of its subparts.

3. NRC fails to satisfy the specific thresholds of Exemption 7(F) because it never shows that disclosure "could reasonably be expected to endanger the life or physical safety of any individual."5 If it satisfies the Exemption 7 threshold requirements, an agency asserting subpart (F) then must demonstrate that disclosure of the records "could reasonably be expected to endanger life or physical safety of any individual." 5 U.S.C. § 552(bX7)(F). Neither NRC's response nor the records it produced even suggest that disclosure of the withheld records "could reasonably be expected to endanger the life or physical safety of any individual." Id.

For decades, agencies have been relying on the phrase "could reasonably be expected to endanger life or physical safety of any individual" to prevent disclosure of records containing information such as the names and identifying infonnation of witnesses, infonnants, government agents, non-law enforcement federal employees, local law enforcement personnel, and other third persons in connection with particular law enforcement matters. It is difficult to imagine how the records NRC withholds are similar to these examples. Even the NRC website acknowledges that 7(F) does not protect the types of records PEER requests. The website reads as follows:

Exemption 7(F): Disclosure could reasonably be expected to endanger life or physical security of any individual

• Exemption has rarely been used by NRC

• Records or infonnation compiled for law enforcement purposes the disclosure of which could endanger the life or physical safety of an individual or individuals,/or instance, where necessary to protect an individual (or group 5 Id. Section 3 applies to the same withheld re(;ords (or portions) listed in footnote 4.

5

of individuals) from possible /,arm by a requester w/10 l,as t/,reatened l1arm in tire past 6 (emphasis added)

NRC's response fails to connect the withheld records with any "reasonably Dexpected" danger to the "life or physical safety of any individual." 5 U.S.C. 552(b)(7)(F). NRC "does not need to identify [an endangered] individual by name," but the agency cannot simply "identify an individual only as being a member of a vast population." American Civil Liberties Union v.

Dep'I of Defense, 453 F.2d 59, 80 (2d Cir. 2008). NRC even fails to make a conclusory statement asserting that disclosure is reasonably expected endangered individuals. Indeed, PEER guesses that NRC's withholding appears to be based on speculative, abstract and unsubstantiated fears that disclosing the infonnation will somehow aid in terrorist wrongdoing. This does not suffice to justify withholding the infonnation. Furthennore, failing to publicly acknowledge the risks of dam failure and reactor flood inundation risks due to natural hazards puts individuals more at risk ofhann. Because the issue has not been publically acknowledged, it is not getting the adequate level of attention to remedy the problems that may arise, putting the public more at risk.

4. NRC wrongfully withholds records as "outside of (the} scope" of PEER's request.7 NRC withholds portions of two records claiming that the redacted infonnation is ..outside of [the] scope" of PEER's request. Given the language in PEER's request, it is impossible for a record (or portion of a record) to be "outside of [thel scope." PEER's request seeks production of specific records in their entirety (see attachment A). PEER's request provides the "accession number" and title or brief description of each record. It is impossible for a portion of a document or record to "outside of [the I scope" of an entire record.

S. NRC fails to meet its statutory time limit.8 NRC's response fails to address three of the eleven records requested more than two months ago on May 7, 2013. NRC fails to meet the twenty*business day response time that FOIA imposes on agencies. FOIA states that agencies "shall make records promptly available" upon request. 5 U.S.C. § 552(a)(3 )(A). Under FOIA 's administrative appeal provision, a requester may administratively appeal an agency's adverse determination (including agency's 6 http://www.nrc.gov/reading-rm/foia/foia-request.html#appeals 7 Section 4 applies to the following records with redactions claimed to be "outside of scope"

- ML0Sl640244, lnfonnation Request Pursuant to 10 CFR S0.54(F) Related to External Flooding, Including Failure of the Jocassee Dam at Oconee Nuclear Station, Units 1, 2, and 3 (TAC Nos. MD8224, MD822S, and MD8226) (Agency Response "Accession no. ML12363A132") (Outside of Scope redaction of page 3); and

- ML090S70779, Oconee Nuclear Station Units I, 2, and 3, Evaluation of Duke Energy Carolinas September 26, 2008, Response to External Flooding, Including Failure of the Jocassee Dam (Agency Response "Accession No. MLl2363A133") (Outside of Scope, redaction of page 5).

1 Section 5 applies to the three records to which NRC has yet to address:

- ML110740482, Analysis Report for the Proposed Generic Issue on Flooding of Nuclear Power Plant Sites Following Upstream Dam Failures;

- The 19- page Jetter from NRC employee Lawrence Criscione to the NRC Chainnandated September 18, 2012; and

- The email dated September 18, 2012 from Lawrence Criscione to the NRC Chainnan.

6

failure to address requested records). 5 U.S.C. § 552(a)(2). PEER appeals NRC's constructive denial of these records.

6. NRC wrongfully withholds records previously made public:.9 Under FOIA, release to one is release to all. NARA. v. Favish, 541 U.S. 157,174 (2004)

(explaining that "once there is disclosure, the infonnation belongs to the general public"). Since filing its request, PEER learned that the NRC fully released record "ML101900305" (Agency Response "Accession No. ML13039A086") in response to a previous FOIA request to another organization.

Compare record "ML IO 1900305, Identification of a Generic External Flooding Issue Due to Potential Dam Failures" (Agency Response "Accession No. ML13039A086") with

• • ML I 3066A429, Email from F. Ferrante, NRR to J. Mitman, NRR on NRR Submittal to GW -

External Flooding Issue (Dam Failures)." Record ML13066A429, the latter, was released to Greenpeace's Jim Riccio on February 6, 2013 in response to FOIA 2012-0325 and remains available on NRC's public website. PEER requests record ML101900305 (Agency Response "Accession No. ML13039A086"), but NRC provides PEER with a redacted version. Although the documents appear slightly different, ML13066A429 is an unredacted version of MLI 01900305 (Agency Response ..Accession No. ML13039A086"), the memorandum PEER requests but that NRC fails to produce in fulI. 10 This record should be fully produced.

7. NRC fails to address segregability. 11 NRC's response fails to make any mention of segregability. FOIA requires that "(aJny reasonably segregable portion of a record shall be provided to any person requesting such a record after deletion of the portions which are exempt." 5 U.S.C. § 552(b) (sentence immediately following exemptions). "The segregability requirement applies to all ... documents and all.,

FOIA Exemptions. Judicial Watch, Inc. V DOJ, 432 F.3d 366,371 (D.C. Cir. 2005). When responding to FOIA requests, agencies are to detennine and explain to the requester whether "any intelligible portion of the contested" redactions can be "segregated for release." Mays 11.

DEA, 234 F.3d 1324, 1328 (D.C. Cir. 2000). Agencies are required to address segregability "with reasonable specificity" and cannot make assumptions as to the value of withheld information to the requester, no matter how seemingly insignificant the redacted portions may be in the eyes of the agency. Stolt-Nielsen Transp. Group Ltd. V United States, 534 F.3d 728, 734 (D.C. Cir. 2008). Furthennore, an agency cannot rely on conclusory assertions to satisfy the segregability requirement. The agency must demonstrate that all reasonably segregable, nonexempt infonnation is properly disclosed. United Am. Fin., Inc. v. Potter, 531 F. Supp. 2d 9 Section 6 applies to record ML IO I 900305, Identification of II Generic External Flooding Issue Due to Potential Dam Failures (Agency Response "Accession No. ML13039A086").

10 The only differences are:

l. the first page (i.e. the email from Ferrante to Mitman);

2. the missing July 19, 2010 date at the top of the second page; and

3. the fact that every page is offset by about five lines due to the added da1e to the final version.

From an infonnation standpoint, all the information redacted from MLl3039A036 lo PEER was provided to Greenpeace in MLl3066A429.

11 Section 7 applies to all withheld records.

7

29, 41 (D.D.C. 2008). Without any explanation or discussion of segregability, the responsive records appear to contain arbitrarily deleted swaths of infonnation.

Missing Attachment NRC produced 33 pages of record ML081750106, Oconee, Units I, 2 and 3 -Response to IO CFR 50.54(f) Request (Agency Response "Accession No. ML12363A129"). Record ML081750106 should contain four attachments (see attachment D at page 1: "Attachment 4 is a listing of regulatory commitments."), but NRC's production includes only three of the attachments. The final page of the record is a cover sheet for "attachment 4." It is not clear from the production whether attachment 4 was provided, and just did not contain any more information than is there, or whether it was omitted from the production. lf it was omitted, NRC fails to cite a FOIA exemption for the missing attachment. NRC appears to be withholding a requested record without justification. NRC is required to clearly mark all redacted portions (all partially disclosed records) so that the claimed exemption, amount of information, and location of information is readily apparent to the requester. 5 U.S.C. § 552(b) (paragraph immediately following exemptions).

If NRC mistakenly omitted "attachment 4" from production, PEER requests that NRC produce the missing pages at this time. IfNRC is withholding "attachment 4.. pursuant to FOIA Exemption 7(F), PEER appeals the withholding.

Fee Waiver Finally, PEER appeals NRC's assessment of our fee waiver request as "non-excepted" and appeals the assertions that "although your justification for fee waiver is not adequate, it is unlikely that you will incur any fees" and ..your request for a fee waiver is moot." (see attachment C). NRC failed to explain how PEER's fee waiver was not adequate. PEER believes that its justification is adequate and fee waiver should be granted.

The request explains that PEER, a 50l(c)(3) non-profit and tax exempt organization, meets the statutory requirements for a fee waiver. The request dedicates three pages of text to address all eight fee waiver factors listed in 10 CFR 9.41. The request clearly demonstrates that disclosure of the infonnation is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not in the commercial interest of the requester. (see attachment A).

Conclusion In his January 21, 2009 memo, President Barack Obama declared the following policy for the Executive Branch:

"The Freedom of lnfonnation Act should be administered with a clear presumption: In the face of doubt, opeMess prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.

8

Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve ... All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The preswnption of disclosure should be applied to all decisions involving FO IA."

NRC's claim that the records PEER requests are exempt from full disclosure falls short of meeting the requirements for any FOIA exemption, including 5 U.S.C. § 552 (b)(7)_

Consequently, PEER maintains that NRC fails to adequately or properly respond to its FOIA request and is in violation of the Freedom of lnfonnation Act for wrongfully withholding properly requested records.

Thank you for the consideration of this appeal.

. '/ ,

Sincexly~---

1

.-~

JjA". ~

Kathryn Douglass Staff Counsel Enclosed Attachments:

A. PEER's Original Request B. NRC's Acknowledgement Letter C. NRC's Response D. NRC' s Production of Requested Record ML08I750106 9

Attachment A 4 pages (not including this cover page)

FOIA Resource From: Kit Douglass <kdouglas@peer.org>

Sent: Tuesday, May 07, 2013 1:00 PM To: FOIA Resource

Subject:

FOIA request U.S. Nuclear Regulatory Commission FOIA/Privacy Officer Mailstop: T-5 F09 Washington, DC 20555-0001 May7,20l3 RE: Freedom of Information Act Request VIA EMAIL

Dear FOIA Officer:

Pursuant to the Freedom of Information Act, 5 U.S.C. 552, as amended, Public Employees for Environmental Responsibility (PEER) requests infonnation in the possession of the Nuclear Regulatory Commission (NRC) regarding the risk of inundation from dam failure to operating commercial nuclear reactors. Specifically, we request the following:

l. MLI 10740482, Analysis Report for the Proposed Generic Issue on Flooding of Nuclear Power Plant Sites Following Upstream Dam Failures;

2. ML l O1900305, Identification of a Generic External Flooding Issue Due to Potential Dam Failures;

3. MLl 00780084, Generic Failure Rate Evaluation for Jocassee Dam Risk Analysisi

4. ML091 l 70 I 04, Oconee Nuclear Station, Units 1, 2 And 3 - Non-concurrence on Evaluation of Duke Energy Carolinas, LLC September 26, 2008, Response to Nuclear Regulatory Commission Letter Dated August 1S, 2008 Related to External Flooding; S. ML101610083, Oconee Nuclear Station, Units 1, 2, and 3, - External Flood Commitments;

6. ML081640244, Infonnation Request Pursuant to IO CFR 50.54(F) Related to External Flooding, Including Failure of the Jocassee Dam at Oconee Nuclear Station, Units l, 2, and 3 (TAC Nos.

MD8224, MD8225, and MD8226);

7. ML08I750106, Oconee, Units I, 2 and 3 - Response to 10 CFR S0.54(f) Request;

8. ML090570779, Oconee Nuclear Station Units l, 2, and 3, Evaluation of Duke Energy Carolinas September 26, 2008, Response to External Flooding, Including Failure of the Jocassee Dam;

9. ML09 l l 70104, Oconee Nuclear Station, Units 1, 2 And 3 - Non-concurrence on Evaluation of Duke Energy Carolinas, LLC September 26, 2008, Response to Nuclear Regulatory Commission Letter Dated August 15, 2008 Related to External Flooding; I0. ML I 11460063, Oconee Nuclear Site, Units 1, 2, and 3. Response to Confinnatory Action Letter (CAL) 2-10-003, dated April 29,201 l;

11. The l 9. page letter from NRC employee Lawrence Criscione to the NRC Chairman dated September 18, 2012;and

12. The email dated September 18. 2012 from Lawrence Criscione to the NRC Cbainnan.

PEER requests that all records be provided electronically, preferably via ADAMS, so there should be no duplication necessary.

In a January 21, 2009 memo, President Barack Obama declared the following policy for the Executive Branch:

..The Freedom of lnfonnation Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because ofspecula1ive or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests ofGovemment officials at the expense of those they are supposed to serve... All agencies should adopt a presumplion in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era or open Government. The presumption of disclosure should be applied to all decisions involving FOIA."

For any documents or portions of documents that you block release due to specific exemption(s) from the requirements of the Freedom of lnfonnation Act, please provide an index itemizing and describing the documents or portions of documents withheld. The index should, pursuant to the holding of Vaughn v. Rosen (484 F.2d 820 [D.C. Cir. J973] gm_,.

denied, 415 U.S. 977 [ 19741), provide a detailed justification for claiming a particular exemption that explains why each such exemption applies to the document or portion of a document withheld.

PEER requests that all fees be waived because "disclosure of the infonnation is in the public interest ... and is not primarily in the commercial interest of the requester" (5 U.S.C. 552 (a) (4XA)). We address the eight factors laid out in IO CFR 9. 4 J to c!early demonstrate that disclosure of the infonnation is in the pub Iic interest because it is Iikel y to contribute significantly to public understanding of the operations or activities of the govemmenl and is nol primarily in lhe commercial inte~sl of the requester, as follows:

(!) Purpose for which the requester intends to use the requested information; PEER seeks the requested infonnation solely to contribute to and help shape lhe public debate concerning the NRC's role in the regulation of the nuclear industry. The informalion provided by the NRC will be analyzed to evaluale the NRC's effectiveness for responding to Hooding concerns at the Oconee Nuclear Station and similarly vulnerable reactors.

(2) Extent to which the requester wiff extract and analyze the substanri11e content of1he agency record; The requested information and the requesters' analysis of the NRC's response to flooding concerns at Oconee and other sites will greatly contribute to the public's understanding of the Commission's role in regulating the nuclear industry. The requested documents detail the NRC's knowledge of these inundation risks as well as its response to those risks. As such, these documents are the most meaningfal indices of how this vital public agency is addressing this e,;tremely serious issue.

(3) Nature oflhe specific activity or research in which /he agency records will be used and the specific qualifications the requester possesses to ulilize information/or the intended use in such a way that ii will contribute to public understanding; PEER is national alliance of local state and federal resource professionals. PEER's environmental work is solely directed by the needs of its members. As a consequence, we have the distinct honor of serving resource professionals who daily cast profiles in courage in cubicles across the country. Public employees are a unique force working for environmental enforcement. In the ever-changing tide of pol itica I leadership, these front-I ine employees stand as defenders of the public interest within their agencies and as the first line of defense against the e,;ploitation and pollution of our 2

environment. Their unmatched technical knowledge, long-tenn service and proven experiences make these professionals a credible voice for meaningful refonn.

PEER is working with government scientists, engineers and other agency specialists to obtain and analyze what we believe are important agency documents which should- but have not yet- ,cached the public domain.

4) The likely impact on the public's understanding of the subject as compared to the level ofpublic understanding of the subject before disclosure; The vast majority of the documents PEER is requesting have not yet been released outside the NRC and thus the public has little idea of their content. With the context provided-by PEER, these documents would help the public understand in a new. far more detailed way -

The extent of flood inundation risks to American reactors -what reactors are at what level of risk; What has the NRC done about known risks - especially severe risks whose existence has been known for years; and The options available for minimizing or eliminating these risks.

These issues are important planks in a larger public debate about the safety and reliability of nuclear-generated power and the professionalism and judgment e"ercised by the key regulatory agency.

(5) The size and nature of the public to whose understanding a contribution will be made; The bulk of the requested document consists of a fonnal screening evaluation conducted by a federal regulator (i.e. the NRC) on a potentially serious public safety concern (i.e. the vulnerability of nuclear power plants to flooding due to the failure of upstream darns). Thus, the most directly affected segment of the public will be those living within the evacuation zones of at-risk reactors. Since it is our understanding that the portion of at-risk reactors may be as large as one-third of the nation's nuclear capacity, several to tens of millions of the American public will be vitally concerned with the information contained in the requested documents.

Given the potential magnitude of worst-case-scenario consequences outJined in the requested documents, it would not be an exaggeration to say that an U.S. residents will have their understanding of the vulnerabilities outlined within these documents heightened.

(6) Intended means of dissemination lo the general public; PEER intends to provide the requested infonnation to the general public through -

Release to the news media; Posting on the PEER web page which draws between 1,000 and 10,000 viewers per day; and Publication in PEER's newsletter that has a circulation of approximately 20,000, including 1,500 environmental journalists.

Through these methods, PEER generates an average of 1.5 mainstream news articles per day. Moreover, PEER bas repeatedly demonstrated the ability to generate nationwide news coverage concerning activities occurring within federal agencies, such as the NRC.

In addition, this topic -without the benefit of all the documents PEER is requesting - has already been the subject of national media coverage. We would anticipate even greater coverage once the requested documents are disclosed.

3

(7) Public access to information will be providedfree ofcharge; and As indicated above. the requested documents will be available to the general public without charge and in the most accessible manner possible.

(8) PEER has no commercial or private interest in the agency records sought.

Disclosure is in no way connected with any commercial interest of the requestors in that PEER is a nonprofit, nonpartisan public interest organization concerned with upholding the public trust through responsible management of our nation's resources and with supporting professional integrity within public land management and pollution control agencies. To that end, PEER is designated as a tax-exempt organi:zation under section 501 (c) (3) of the Internal Revenue code.

As detailed above, these documents concern the activities of a federal agency, the NRC; will contribute significantly to public understanding of this agency's operations and activities; and the requester has no commercial interest in their release. Unquestionably, the public interest strongly militates for their full disclosure.

If you have any questions about this FOIA request, please contact me at (202) 265-PEER. I look forward to receiving the agency's final response within 20 working days.

Sincerely, Kathryn Douglass Staff Counsel Public Employees for Environmental Responsibi)ity (PEER) 2000 P Street, NW Suite 240 Washington, DC 20036 Tel: (202) 265-7337; Fax: (202) 265-4192 Website: www.peer.org 4

Attachment B 1 page (not including this cover page)

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, O.C. 20S5S-0001 May 7, 2013 FOIA/PA-2013-00239 Kathryn Douglass Public Employees for Environmental Responsibility 2000 P Street. NW, Suite 240 Washington, DC 20036

Dear Requester:

We received your Freedom of Information Act/Privacy Act (FOIA/PA) request on May 7, 2013.

Your request has been assigned the following reference number that you should use in any future communications with us about your request: FOIA/PA-2013-00239 To ensure the most equitable treatment possible of all requesters, the NRC processes requests on a first-in, first-out basis, using a multiple track system based upon the estimated time it will take to process the request. Based on your description of the records you are seeking, we estimate completion of your request will take more than 20 working days. We will advise you of any change in the estimated time to complete your request.

Due to the unexpected events in Japan in March 2011, the NRC is processing a larger than normal volume of FOIA requests including some that have qualified for expedited processing and have therefore been placed at the front of the queue. We are doing our best to process all requests in a timely manner but our response times are being affected. We appreciate your understanding.

For purposes of assessing fees in accordance with our regulations (10 CFR 9.33), we have placed your request in the following category: Non-Excepted. If applicable, you will be charged appropriate fees for: Search and Duplication of Records. Although your justification for a fee waiver is not adequate, it is unlikely that you will incur any fees. Therefore, your request for a fee waiver is moot.

The following person is the FOIA/PA Specialist who has been assigned responsibility for your request: Linda Kilgore at 301--415-5775.

If you have questions on any matters concerning your FOIAJPA request please feel free to contact the assigned FOIA/PA Specialist or me at (301) 415*7169.

Sincerely, ISi Donna L. Sealing FOIA/Privacy Act Officer Office of Information Services

Enclosures:

Incoming Request

Attachment C 3 pages (not including this cover page)

U.S. NUCLEAR REGULATORY COW.USION FOIM'A RESPONSE NUMBER RESPONSE TO FREEDOM OF INFORMATION ACT (FOIA) I PRIVACY ACT(PA)REQUEST RESPONSE TYPE D FtNAL (Z}PARTIAL REQUESTER DATE Kit Douglass JUN 1 9 HI PART I. - INFORMATION RELEASED Requested No additional agency records subjed to the request have been located.

r::AAPPEN01Cii""7 records are available through another public distribution program. See Comments section.

Agency records subject to the request that are identified in the listed appendices are already available for 0 ~__J public inspection and copying at the NRC Public Document Room.

APPENDICES

• 1 Agency records subject to the request that are identified in the listed appendices are being made available for

_ public inspection and copying at the NRC Public Document Room.

Document Room. 11555 Rockville Pike, Rodtville. MD 20852-2738.

Enclosed ls information on how you may obtain access lo and the charges for cxipying records located at the NRC Public APPENDICES l_

l Agency records subject to the request are enclosed.

referred lo that agency (see comments section) for a disclosure determination and direct response to you.

Records subject lo the request that contain information originated by or of interest to another Federal agency have been 0 'Ne are continuing to proce51; your request.

See Comments.

PART I.A - FEES A~"'1' sl D You will be billed by NRC for the amount listed. D None. Minimum fee threshold not met.

• Se~e_co_mme--n,-,~

lotdol1il1 D You will receive a refund for the amount listed. D Fees waived.

PART 1.8 - INFORMATION NOT LOCATED OR WITHHELD FROM DISCLOSURE No agency records subjed to the request have been locatecl. For y0\lr information, Congress excluded three discrete calegories of law enforcemenl and national securi\y records from the requirements of the FOIA. See 5 U.S.C. § 552(c)

(2006 & Supp. IV (2010). This response is limited to those records that are subject to the requlrements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist.

0 Certain information in the requested records is being withheld from disclosure pursuant to the exemptions described in end for the reasons stated in Part II.

0 This determination may be appealed within 30 days by writing to lhe FOIA/PA Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Clearly state on the envelope and in the letter that it is a "FOIA/PA Appeal."

PART I.C COMMENTS ( Use attached Comments eonttnuatlon page If required)

The incoming FOIA request will he available in ADAMS at ML 13127A29S. Records with an ML accession number arc available in the NRC Library at www.nrc.gov/reading-nn/adams.html. For assistance in obtaining any public records, please contact the NRC's Public Document Room (PDR) at 1-800-397-4209 or by e-mail al PDR.Resource@nrc.gov.

Items I. 11 and 12 of your request wil I be addressed in a later response. Please note that items 4 and 9 of your request are duplicates.

,. 1 I JURE

• FIOIEEOOU OF IHF"OO f-' Donna L. Sealing

NRC FORM 464 P*rt II U.S. NUCLEAR REGULATORY COI.WISSION FOIA/PA DATE (H0111 RESPONSE TO FREEDOM OF INFORMATION 2013-0239 JUNtOHI ACT (FOIA) / PRIVACY ACT (PA) REQUEST PART II.A - APPLICABLE EXEMPTIONS l~Pl'ENOICES I Records subject to the reque1t lhel are de&Qlb9d In the endoIed Ap11endices are being withheld in !heir entirety or in part under the Exemplion No.(s} of the PA and/or the FOIA as Indicated below (5 U.S.C. 552a and/or 5 U.S.C. 552(b)).

D Exemplion 1: The withheld informallon i& property clasallied pu111uant lo Bi:ecutiv8 Onfer 12958.

Exemption 2: The withheld information relales solely to the lnlemal personnel rules and pracllces of NRC.

Exempllon 3: "The withheld lnformalior, is specifically e~emptec:l lrom public discJosu,e by statute incliceted.

Sections 141-145 of lhe A!omlc Energy Acl, which prohibits lhe disclosure ,:,f Restllcled Data or Formelly Restlic:led Data (42 U.S.C.

2161-2165).

Section-147 of the Atomic; Energy ACI, which prohibits the dbdos11re of Unclalsified Safeguards lnformatron (42 U.S.C. 2167}.

41 U.S.C .* Section 253b, subsection (m)(1 ), prohibits the disdosure of contraCIOI' proposal$ in the posse&Sion and control of an execulille agency to ;iny per.on under secdon 552 ofTitle 5, U.S.C. (the FOIA), except when incorporated lnto the contrad between the llgency and the submitter of the proposal.

0 Exemption 4: The wlthheld information is a trade secret or commerclsl or financial lnfofTYlalion that is being withheld for the reason(s} Indicated.

0 The information Is considered to be confidential business (proprietary} lnlonna!lon.

The information is considered to be propnelary because It concel11$ a Hcensae's or applicant's physk:al prolection or material oonlrol and accounting program for apeclal n11cleer malerial pUl'luanl lo 10 CFR 2.390(d){1 ).

0 The lnlormallon was submitted by a foreign source and 111<:E:ived in confidenoe purauant lo 10 CFR 2.390(d)(2).

0 Disclosure wll harm an ldenOliable private or gowmmantal lntarHI.

Exemption 5: The wllhheld infonnetion conSisls of lnteragency OJ intraaaenc:y records that are not available through discovery during litigation.

App!ltable prlvileges:

OeHberatlve process: Dt1cl0511f8 of predeclsional information would tend lo inhibit 1119 open and frank exdlange of ideas essential to Ille deliberallw process. \Nhare records are withheld In their entirety. the lads are inextricably inlertwined with lhe predeclsional Information.

There also are no reesonably &egregable faclual portions because the release of Ille facts would permit an indirecl inquiry into lhe predecisional process ofthe agency.

0 Attorney worll-producl privilege. {Documents prepared by an attorney in contemplation of ~Hgation)

O Attomey-d!ent pltvilege. (Conlldential communications between an attorney and his/her dienl)

Exempllon 6; The withheld information is exampled from public dlsclo&ure because its disclosure would te&ull in a clearly unwarranted D invasion of personal privaey.

0 E,cemption 7: The withheld Information consists of records COITlpiled for law enforcement purposes and is being wilhheld for the reasor,{s) indicaled.

(A) Disclosure could reasonably be expeded to interfere with an enforcement proceeding (e.g., it would reveal lhe sc;ope, direction, and locus of enforcement affom, end thU6 could pouibly aftow recipients to take action to shield pote11tial wrong doing or a violalior, or NRC requirements from Investigators).

(C} Disclosure could constitule an unwarranted Invasion of personal pnvacy.

(0) The inlonnation consists of names of individ~ls and Other lnfonnalion the disdcsure of which could reasonably be expected to reveal idenUlies of cunfidenllal soLKoes.

0 (E) Disclosure would ,e,..al techniques and proc:edu,es for law anforcernenl investigations or prosecutions, or guidelines that could reasonably be expected to nsk circumvenllon of the law.

It] (f') Oisdosare could reasonably be expected lo endanger Che Hie or physical safety of an individual.

OTHER (Spedfy)

I PART 11.B - DENYING OFFICIALS Pursuant to 10 CFR 9.25(g~ 9.25(h), and/or 9.65(b) Of the U.S. Nuclear Regulatory Commission regulations, it has been determine-Cl that the information withhelo is exempt from production or disclOsure, and !fiat its production or disclosure is contrary to the public interest. The person responsible for lhe denial are those officials identified below as denying officials and the FOINPA Officer for any denials that may be appealed to the Executive Director for Operatlon5 (EDO).

APPELLATE OFFICIAL DENYING OFFICIAL TITLE/OFFICE RECORDS DENIED E0O SECY IG Victor McCree Regional Administrator See Appendix A-8 0 D Eric J. Leeds Director, NRR See Appendix A-1,3,5,6,7 0 D Appeal must be made in writing within 30 days of receipt of this response. Appeals should be mailed to the FOIA/Privacy Act Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, for action by lhe appropriate appellate official(s). You should clearly state on tile envelope and letter that it is a "FOIA/PA Appeal:'

NRC FORM 464 PIii'! II {lt-2011)

Re: FOIA-2013-0239 APPENDIX A RECORDS ALREADY AVAILABLE IN THE PDR NO. ACCESSION NO. DATE DESCRIPTIONl(PAGE COUNT) 1 ML13039A086 07/19/10 Memorandum to Benjamin Beasley, RES from Lois James, NRR,

Subject:

Identification of a Generic External Flooding Issue Due to Potential Dam Failures (9 pages) Exemption 7F 2 ML13039A084 03/15/10 Generic Failure Rate Evaluation for Jocassee Dam (15 pages) Exemption 7F 3 ML13106A168 04/27/09 Non-Concurrence Process on Evaluation of Duke September 26, 2008 Response Related to External Flooding at Oconee (19 pages) Exemption 7F 4 ML101610083 06/03/10 Oconee Nuclear Station - External Flood Commitments {5 pages) 5 ML12363A132 08/15/08 Information Request Pursuant to 10 CFR 50.54(1)

Related to External Flooding, Including Failure of the Jocassee Dam at Oconee Nuclear Station, Units 1, 2, and 3 (5 pages) Exemption 7F 6 ML12363A129 09/26/08 Oconee, Units 1, 2, and 3- Response to 10 CFR 50.54(f) Request (33 pages) Exemption 7F 7 ML12363A133 04/30/09 Oconee Nuclear Station Units 1, 2, and 3, Evaluation of Duke Energy Carolina September 26, 2008, Response to 10 CFR 50.554{f}, Letter (5 pages) Exemption 7F 8 ML13099A247 04/29/11 Oconee Nuclear Site, Units 1, 2, 3, Response to Confirmatory Action Letter (CAL) 2-10-003 (16 pages) Exemption 7F

Attachment D (pages 2 - 32 omitted) 2 pages (not including this cover page)

~Dulre DIIVE &U'JrR Jib P1"ide,,t tc7Energy._ 0.:-Nur.le*rll*I.;.,.

Oll!f liteti, ColJM,ffwl tHiOIVPJ7flrJO Rarllener H/rllnf Sfntt11, $C 29611 16**115*4410 86f--H5420I tu d*llllllf@v'IIQf~,nim September 26,2008

• U. S. Nuclear Regulatory Commission Attn: Dc?eument Control Desk Wa~hington. D. C. 20555-0001

Subject:

• Duke Energy Carolinas, LLC Ocom,c Nuclear Sile, Units 1. 2, and 3 Renewed Facility Operating License, DPR-38, DPR-47, arid DPR-55; Doc::kel Numbers 50-269, S0-270, and S0*287 Response to t OCFR SO.S4(f) Request

Reference:

NRC Letter from Joseph 0. Glitter to Dave Baxter, "INFORMATION REQUEST PURSUANT TO 10 CFR S0.54(f) RELATED TO EXTERNAL FLOODING, INCLUDING FAIT.URE OF THE JOCASSBB DAM, AT OCONEE NUCLEAR STATION, UNJTS I, 2, AND 3, {TA' NOS. MD8224, MD822S, MD8226)".

dated August 15, 2008

• 'Duke Energy Carolinas, LLC*(Duke) hereby provides our n:sponse to the reft~nced letter re(ll!ived on August 15, 2008. This letter requested infonnation be provided 10 the NRC pU!$uant lo the provision.s of 10 CFR 50.54(f) regarding c:xlemal flood i::onRquences al the Oconee site re11uJtiog from a failure oC-the .Jocusee dam. The letter focused on three specific questions to be addressed in writing within 45 calendar d1ys.following its receipt.

.Attac:hmcnl l provides general information related to the design, consliuction, and operation of the Jocusee Project along with a discussion oflhe Oconee external tloodine licensing buis histoI)'. Attaehment 2 provides the Duke response to lhe three specific questions pqscd in the Augusc IS letter. Attai::hment 3 discusses c::um:nt and plilDlled actions, while Anachmcnt 4 is a listing of regulatory comrnitment:i being made: as a resull ofthis response,

AITACH~ENT 4 REGULATORY COMMITMENTS

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, 0 .C. 20555-4001 OFFICE OF THE GENERAL COUNSEL June 13, 2013 Lawrence S. Criscione Sent electronically to LSCrisclone@hotmail.com

Dear Mr. Criscione:

Thank you for your recent correspondence. The General Counsel referred your letter, dated May 24, 2013, to me for a response. I am the Assistant General Counsel for the division within the Office of the General Counsel that is responsible for providing legal advice on the Freedom of Information Act (FOIA).

We appreciate hearing your concerns regarding the agency's obligations under FOIA and with regard to your FOIA requests and appeals. The U.S. Nuclear Regulatory Commission (NRC) and the NRC's Office of the General Counsel take very seriously the agency's responsibilities under FOIA. We strive to respond to FOIA requests and appeals within the prescribed time limits, and to promote the principles of transparency and openness in response to FOIA requests and appeals.

The NRC as a whole is putting forth significant efforts to respond to the many related FOIA requests and appeals tlhat you have submitted, and this requires coordinating among multiple offices within the NRC to ensure that we are taking a consistent approach.

If you need any additional information, please contact me or the member of my staff most familiar with this matter, Michelle Albert, at 301-415-1607.

Sincerely,

--(Jaffe--~ ~

Patricia K. Hirsch cc: Allison M. Macfarlane, Chairman Hubert T. Bell, Inspector General Margaret M. Doane, General Counsel Annette Vietti-Cook, Secretary of the Commission R. William Borchardt, Executive Director for Operations Darren Ash, Chief Freedom of Information Act Officer James Flanagan, Director of the Office of Information Services Donna Sealing, FOINPrivacy Act Officer

Criscione, Lawrence From: Lawrernce Criscione <lscriscione@hotmail.com>

Sent: Thursday, June 13, 2013 11:23 PM To: Hirsch, Pat; Albert, Michelle Cc: Sealing, Donna; Vietti-Cook, Annette; CHAIRMAN Resource; Borchardt, Bill; Ash. Darren; Bell. Hubert; Doane, Margaret; Boska, John; Wilson, George; Tom Zeller; paul@times.org; Jim Riccio; Dave Lochbaum; jruch@peer.org; Louis Clark; tomd@whistleblower.org; Billie Garde; sshepherd@cliffordgarde.com

Subject:

FW: Response to your letter Attachments: Errata - Inquiry for FOIA Appeal 2013-004A, 006A, 009A, 010A, 0llA and 013A.pdf

Pat, Thank you for your June 13, 2013 reply to my May 24, 2013 letter.

First. I recognize that the NRC is. of late. putting forth significant efforts to respond to the many related FOIA requests and appeals that I and others have submitted regarding the Jocassee/Oconee issues. I recognize these efforts require coordinating among multiple offices within the NRC to ensure that we are taking a consistent approach. I appreciate these efforts and I would like to see us as an agency put the time forth to get these issues resolved correctly, even if that means not meeting some of the deadlines prescribed by the Freedom of In formation Act.

Not all FOIA requests are equal. Some (e.g. FOIA 20 12-0325) are impossible to answer in the 30 working day window prescribed by the FOIA. However, others (e.g. 2013-0126, 2013-0 I 27, 2013-0 I 28) can readi ly be answered, especially when they consist of documents already redacted and release.

I don't know ifyou have noticed a pattern (I have certainly not tried to hide it), but most of the documents I have been requesting have already been requested - and released - by others (e.g. Koberstein, Zeller. Riccio, Lochbaum). I have been doing this because I do not agree with the redactions we have made to the documents released BUT under the law have no authority to challenge redactions made to the FOIA responses to others. Therefore, in order to appeal these redactions, I must first request the documents myself (since I can only appeal my own FOIA responses). It has been frustrating to me that my FOIA requests cannot be res ponded to within 20 working days when they consist entirely of documents that have already been reviewed and released under earlier FOIA's. It would help the overburdened NRC technical staff immensely if the FOIA office had a process for easily flagging documents that have already been released in redacted form and immediately responding to those FOIA requests without burdening the technical offices.

Although I am somewhat sympathetic to the challenges fac ing the technical and FOIA staffs in meeting the time commitments prescribed in the Freedom of Information Act, please note that much of the reason these time limits cannot be met are because of our own flawed processes:

I. The woefully disjointed guidance that exists for the detennination of SUNS!.

2. The decision to not require portion marking on "Official Use Only" records

3. The decision to fail towards secretive withholding instead of fail towards transparent release

4. The decision to limit the types of documents routinely released

With regard to item 1: Management Directive 12.6 is from 1999 (i.e. two years prior to the drastic information handling changes resu ltant from the 2001 11 attacks) and is woefully out of date as evidenced by the need to sort through confl icting guidance in SECY papers, policy statements and intranet announcements to resolve significant questions. On October 26, 2012 I wrote an 8 page email to my union representation advising them of the poor condition of the guidance for Official Use Only information. I also wrote a two page email on October 25, 2012 to NRC Facilities Security (the program owner for MD 12.6) detailing some of this conflicting guidance. Both these emails were captured in internal NRC ADAMS as MLI 23 l 3A059. These emai ls had been meant to point out a problem in the hopes of reach ing a dialogue to produce solutions; they were not merely meant to be finger pointing. However, thus far no dialogue has ensued and instead the NRC has labeled ML12313A059 as "Allegation Material". As typical of the so-called "allegations" which others have submitted to the fnspector General in my name, no one investigating it has yet engaged me to discuss it. Since my Office Director and my Union President have been unreceptive to my concerns, I do not expect you to engage me to address them either. But if anyone is interested, my concerns regarding the marking and handling of SUNS! are provided in ML I 23 13A059.

With regard to item 2: Secret and Top Secret documents must be portion marked. When looking at a Top Secret document. it is readily apparent which paragraphs cannot be released (they are marked with either a "(TS)", "(S)". or "(C)") and it is readily apparent which paragraphs can be released (they are marked with "(U)" for "Unclassified"). This methodology was not prescribed to make FOIA releases easier; it was prescribed in order to protect classified information. Consider an environment in which Top Secret documents were not portion marked. In such an environment, individuals working with the documents would not be definitively certain what exactly was classified and what was not. If an ind ividual was attempting to prepare a power point presentation with an overall classification of "Secret" and wanted to ensure there was no "Top Secret" information included, without portion markings he would need to use his own individual judgment and individual interpretation of the classification guidelines when reviewing his Secret and Top Secret references. Not only is this tedious, but it is ripe for error. Having a trained classifier portion mark the paragraphs when the document is written will ensure the individuals utilizing the information definitively understand the classification level of the various pieces and do not need to rely on individual judgment and interpretation.

If the Jocassee/Oconee documents which r requested under the Freedom of Information Act had been portion marked, then they could not only have been readily redacted for release (and thus ensure the agency meets its time commitments under the Freedom of In formation Act) but there would have been none of the inconsistencies that have been rampant between the information provided to Green Peace (Riccio) yet withheld from the Union of Concerned Scientists (Lochbaum) and the Cascadia Times (Koberstein). The reason for the inconsistencies which have been bogging down your OGC staff of late is because the varied technical staffers in NRR have had to individually use their judgment and interpretation of the highly disjointed SUNS! guidance to decide what can and cannot be released instead of relying on portion markings supplied by a trained SUNSI designator.

Requiring portion marking places the burden upon those who wish to withhold infonnation in that in order to withhold information the individual desiring secrecy must specifically state what portions of a document are "Official Use Only" and why. Not requiring portion marking places the burden upon those who wish to transparently share information in that once an entire document or even an entire issue (e.g.

the flooding concerns at Oconee) has been designated "Official Use Only" the individual desiring "Open Government" must specifically justify- often to several concerned parties any one of which can un-informedly veto the decision - why a particular piece of information can be shared with the public.

With regard to item 3: We are no longer the AEC. We do not bui ld nuclear weapons and run enrichment faci lities - those functions of the AEC were relegated to the Department of Energy which, by 2

the nature of its mission, must be secretive. We are the NRC. We regulate the commercial nuclear industry. The public must be able to trust our ability to be an impartial and competent regulator. Secrecy is as fatal to that public trust as transparency is vital to it. If a mid-level bureaucrat (e.g. George Wilson or John Boska) believes an important safety vulnerability (e.g. a potential Fukushima-style scenario in South Carol ina due to a dam break) must be kept from the public due to concerns regarding dam security.

then he needs to be challenged. We need to make sure that, not only is the security threat real (i.e. it is not mere "speculative or abstract/ears"), but a lso that its secrecy takes precedence over our vital mission of transparently informing the American public (which includes elected decision makers, emergency responders, concerned homeowners, etc.) of potential safety concerns arising at nuclear fac il ities we regulate. Control ling security-sensitive information is important, but it is not of such importance that it must be our conservative defau lt position. Much harm can be done by secrecy to not only our public confidence but also to our ability to proactively stir internal and external debate regarding important safety topics such as flooding due to dam failures. A mid-level bureaucratic should not be able to squelch our mission of transparency by taking an overly conservative stance on what can and cannot be publicly released. At the NRC we need to defau lt to transparency and require those desiring secrecy to rigorously make their case.

With regard to item 4: In IO CFR § 9.2 I we list 6 records ofNRC activities that are available for public inspection and copying. We need to expand that list to include:

(7) all correspondence between the NRC and its licensees concerning inspections, including correspondence fo llowing through on issues which arise during inspections (8) all correspondence between the NRC and its licensees concerning license amendments, including correspondence fo llowing through on issues which arise during the evaluation of license amendments (9) all correspondence between the NRC and its licensees concerning allegations, including correspondence following through on issues which arise as the result of the investigation of an allegation It is unconscionable that our correspondence with a licensee (Duke Energy) regarding a significant safety concern (the Jocassee/0conee flooding issues) has been kept from the public for six years. Even if Wilson and Boska are right and a ll information regarding "dam failure probabilities, spec(fics ofnuclear power events caused by dam.failure, and flood elevation.~ resulting from dam failure'* must be withheld from the public due to security concerns, that does not justify withholding six years worth of correspondence on the issue. All the documents I have requested under the FOJA shou ld have been portion marked and the non-0fft.cial Use Only portions should have been voluntarily released by the NRC so that the American public wou Id have at least known about the non-security sensitive aspects of the issue. The American public deserves to be aware of our correspondence with a licensee regard ing a significant safety concern. It is my opinion that NRR withheld this correspondence for malicious reasons. It is my position that NRR found it embarrassing that the NRC did not have a ready solution to the flooding concerns at Duke Energy and welcomed the "Official Use Only" designations - required by the supposed security concerns - which prevented the voluntary release of this information to the public. I am not stating this to you as an allegation; I am merely informing you ofmy position. Were I 0 CF R § 9.21 to include official correspondence with licensees as documents routinely made public, it would have gone a long way to ensure transparency on the Oconee/Jocassee flooding issue.

I do not need a response from you on the above four items. They are merely my observations to you and you can take them for what they are worth. However, I would like you or Ms. Albert to provide me the following:

3

• A date when J can expect to receive a response to FOIA request 20 13-0129 and FOIA appeal 2013-013A concerning emails between the NRC and other federal agencies (USACE. FF.MA, FERC. DI-IS, TV A) regarding redactions to the Gl-204 Screening Analysis Report.

• A date when I can expect to receive a response to FOIA request 20 13-0127 and FOIA appeal 20 13-0 I 0A concerning a copy of my 20 12-09-18 email and attached letter to Chainnan Macfarlane

• A date when I can expect to receive a response to FOIA appeal 2013-004A concerning redactions to ML0& 1640244 contained in ML! 2363A 132, redactions to ML082750106 contained in ML12363A129.

redactions to Ml ,090570779 contained in ML12363A133, redactions to ML09 I380424 contained in ML12363A l34, and redactions to ML092020480 contained in ML1 2363A l35

• A date when I can expect to receive a response to FOIA appeal 2013-006A concerning redactions to ML! 10740482 contained in ML12188A239

• A date when I can expect to receive a response to FOIA appeal 20 l 3-009A concerning redactions to ML111460063 contained in ML I3099A247. redactions to ML I00780084 contained in ML I3039A084.

and redactions to ML101900305 contained in ML l3039A086

• A date when I can expect to receive a response to FOIA appeal 20 13-0 I 1A concerning redactions to ML09 I 170 I 04 I am at the stage in the process where my next step is to sue in federal court to obtain your responses to my FOIA appeals and to contend any disagreements I have with those responses. I was planning on preparing such a suit this weekend and filing it next week. However, in light of the agency's recent engagement with me (i.e.

your June 13, 2013 letter) and in light of your stated efforts regarding "coordinating among multiple offices within the NRC to ensure that we are laking a consistent approach", I am willing to forgo the fi ling of a FOIA suit provided you can provide me with reasonable dates for the completion of responses to my FOIA appeals and requests mentioned in the bullet-ed items above. Please note that I consider reasonable dates as dates which fall within June or July of 2013. The appeals mentioned above are already fourteen to six weeks old and I believe expecting an answer within the next 30 working days (i.e. six weeks) is wholly reasonable on my part.

In writing this response to you. I noted some errors in my May 24, 2013 letter. Attached is a revised copy with changes to pages 3, 5 and 6. I apologize for any confusion my errors may have caused.

Very respectfully.

Larry Criscione 573-230-3959 From: Pat.Hirsch@nrc.gov To: LSCriscione@hotmail.com CC: Donna.Sealing@nrc.gov; Michelle.Albert@nrc.gov Date: Thu, 13 Jun 20 13 12:47:58 -0400

Subject:

Response to your letter Pat llirsch Assistant General Counsel for Legal Counsel, Legislation and Special Projects

Alternate Agency Ethics Official Office of General Counsel Nuclear Regulatory Commission Mail Stop O- l 5 D2 1 30 1-4 15-1607 5

With regard to item 1: ".1anagcment Directi\e 12.6 i, from 1999 (i.e. two years prior to the drastic in formation handling changes resultant from the 2001-0Q- I 1 attad s) and i, woefully out of datc as evidenced by thc need to sort through conflitting guidance in SHY papers. policy :-.tatements and int rand announi.:emcnts tt1 resol\'C significant questions. On Octohcr 26. 2012 I wroh: an 8 page email to rny union representation ad\'ising them ('fthc poor conJitic,n of the gui<lan1:c for Ot'!icial Use Only information. I also wrote a two page email lln Octobcr 2~.2012 t(' NRC Fa1:ilities Security {thc program o,.,,ner for 'v1D 12.6) detailing some nfthis conflicting guidance . ffoth the,c email~ wen: captun:d in internal NRC ADA".1S as l\1Ll2 3 13A059. The':-e emails haJ hecn meant to point out a problem in the hopes of reaching a dial(,gue to pniduce s(ilulilins: the: \\ere mit merely meant to he linger pointing. I hlwcver. thus far no dial()gue has ensued and instead the N R(

• has labe led \11 . 123 I 3A059 as "Allegation l\1aterial". As typi-:al of the so-tailed "alkgation~" ,vhich olht.:rs have suhmittcJ lo lhe Inspector General in my name. no nne in,cstigating it has yet cngagcd mc 10 discuss it. Since my Onice Director and my t;nion President ha\e hccn unreccpti\e to JTI), toncern,. I Ul) m,1 expect ynu IP engag(.'

me lo address them cithn. But if anyone is interested. rny rnnccrns regarding the marking anJ handling

{)f Sl :NSI arc prn,idcJ in \ IL I~- ' I ,A0~9 With regard to item 2: Secret and Top Sci.:rct 1focumcnls mu,t he portion marked. \I, hen IPPking. at a Top Sccn~t Jornmcnt. it is readily apparent \\hich p.iragraph:s c,1111101 he rekaseJ (lhey are marked ,,._ith either a "(TS)". "(S). or "( C)"J and it i~ readily appan.:nt \\ hid1 paragraphs can he rclcased (thcy arc marked \vith "( U )" for "l.l ndassi ticd). This methll,h,IL'g: \\ ;is n11t pre,nihl'd IP mah: ro1 A relcasl's easier: it \\as prL*snihcJ in onkr to prPte-:t das~itit.:d inform.Jliiiri. Clln,idcr an en, ironment in whi-:h lop Setret d(icumcnh wer-: n111 pi111iPn m.irkcd . In ,11d1 an rnvironrm:nt. individuals \vork ing with thc documents would not hl' dctin iti, cly t:l'rtain \\ hat c:-.;.u:tl: ,,a._-: l.i,sitil:d .ind what was nlit. If an individual was attempting to prl'parc a pimer point pri:st.:nt.ililln ,,i1h an ll\t.:rall d.1,sili-:ation llf"Sl'net" anJ ,,anted Ill ensure thcrc ,,.is /hi 'Top Secret" inl'ur111atilln indudt:d. wit holll purtion markings he W(1u lJ 11..:ed to u:-,e his 0\\ n indi, idual judgment anJ inJi, iJual intl'rpn:tation llfthe i.:l.is:-,ific.ition guidt:lim:s whcn rcvil'wing his Sccrl'l .ind fop St.:nl'I rL"fercn-:l's. Nllt 1,111: is thi s ll'Jious. hut it is ri1K* for 1.:rrnr. 11:nin!! a trainl'J dassi1i-:r portion mark the p.iragraphs ,,h1:11 lht* do..:umt:nt is ,.,.ritten will ensu re the indiviJ11als utili1ing. thL" inliirmation dl'liniti,el~ understand the dassitirnlilln lcvcl o!'thc various pil'ccs and dn not need to rd1 lln inJi,idual _judgment and inkrprctalilln.

Ir the Jo1:a-.-.cc/(koncc Jl\urrn cnts ,, h id1 I re4 uest<.'<l unJ1.:r tht.: FrccJnm of In formation A-: t had heen portion m.irkt:d. thl'n the1 unrlJ not onl: ha,c: bL*t.:n rcaJil: r-.:JactcJ l(ir relcasc (and thus ensurc the agency mei:ts its timl' commitments undc r the l-rt:cd(1111 of In limnation ,\ct) hut thac ,,ou l<l have hel'n 1wnc of the inwns isten<:ie, that have hcen rampant het\1.een the infl.lrmation provided to (in:cn Pea-:c (Riccil.l) yd withht.:IJ from the l'nion ol'Concernl'J Scil.'ntists 1lochhaurn) and the Cu-"l"11clia Times

( Kohcrsll'in). Tht.: reason f()r thl' i11ci1n,;istencie-. ,,hich h:.1\l' hecn hPgging dim n your oc;c staff of late is becaw,e the varied technical ~taffcrs in NRR ha1.1: haJ tu indi, iJu.ill: use th1:ir juJgml'nt anJ intcrprctalitin oftht.: highl: Ji:,,_j(,inted Sl "NSl g.uiJancc to Jcc:idc what can anJ rnnnot ht.: n:leaseJ in'.'.tcad of relying on ponion marking, suppl i,:J h: a traint.:d SL;'\'Sl <lcsignalPr.

Requiring portion marking pla..:es th.: hurden upon those \\ho wi-'>h 1(1 withhold information in 1hat in order Ill withhold informatiPn the indi\ idual desiring scc rl'C: must spc:cifically state what portions of a document are "(HTicial l.lsc Only" anJ \\ hy. NPt re4uiring plirtion marking places the hurdcn upon those who wish to transparently share infrmnation in that once an entire drn:urnent or e,cn an entire issue (e.g.

the llooding conc,:rns at Oconee) has been de~ignated "Ot'ticial lJst.: Only" thc individual desiring "Open Government must specilirn!lyjustil~ - often t,i se,eral rl1ncemed parties any l'ne of wh ich can un-infonnedly veto the decision - why a particular piece of infonnati,in can be shared\\ ith the public.

With regard to item 3: We arc n,, h>nger thl' :\EC. \\c dli not bui ld nuclear weapons and run enrichment faci lilies - those functions llf the ,\1 .C were rL'legated to the Der,artment of Lnergy which. by 2

• A date when I can expect to receive a response to FOIA request 2013-0 129 and FOIA appeal 20 13-013A concerning emails between the NRC and other federal agencies (USA CE, FEMA, FERC. DI fS, TVA) regard ing redactions to the Gr-204 Screening Analysis Report.

• A date when I can expect to r,eceive a response to FOIA request 20 13-0127 and FOI A appeal 20 13-0 IOA concerning a copy of my 20 12 18 email and attached letter to Chairman Macfarlane

• A date when I can expect to receive a response to FOIA appeal 20 13-004A concerning redactions to ML08 I640244 contained in ML! 2363A 132, redactions to ML082750 I 06 contained in ML12363A129, redactions to ML090570779 contained in ML12363Al33, redactions to ML091380424 contained in ML12363A134, and redactions to ML092020480 contained in ML12363A135

• A date when I can expect to receive a response to FOIA appeal 20 13-006A concerning redactions to MLI I0740482 contained in ML I2 I88A239

• A date when I can expect to receive a response to FOIA appeal 20 I3-009A concerning redactions to MLI 11460063 contained in ML13099A247, redactions to ML100780084 contained in MLI 3039A084, and redactions to ML101900305 contained in ML l3039A086

• A date when I can expect to receive a response to FOIA appeal 2013-0 I IA concerning redactions to ML09l 170104 I am at the stage in the process where my next step is to sue in federal court to obtain your responses to my FOIA appeals and to contend any disagreements I have with those responses. I was planning on preparing such a suit this weekend and filing it next week. However. in light of the agency's recent engagement with me (i.e.

your June 13, 20 13 letter) and in light of your stated eITorts regarding "coordinating among multiple o.fjices wilhin the NRC' lo ensure that we are taking a consislenl approach", I am wi lling to forgo the fi ling of a FOIA suit provided you can provide me with reasonable dates for the completion of responses to my FOIA appeals and requests mentioned in the bullet-ed items above. Please note that I consider reasonable dates as dates which fall within June or July of 2013. The appeals mentioned above are already fou rteen to six weeks old and I believe expecting an answer within the next 30 working days (i.e. six weeks) is wholly reasonable on my part.

In writing this response to you, I noted some errors in my May 24, 2013 letter. Attached is a revised copy with changes to pages 3, 5 and 6. I apologize for any confusion my errors may have caused.

Very respectfully, Larry Crisc ione 573-230-3959 From: Pat.Hirsch@nrc.gov To: LSCriscione@hotmail.com CC: Donna.Sealing@nrc.gov; Michel le.A lbert@nrc.gov Date: Thu, 13 Jun 20 13 12:47:58-0400

Subject:

Response to your letter Pat If irseh Assistant General Counsel for Legal Counsel, Legislation and Special Projects 4

Alternate Agency Ethics Official Office of General Counsel Nuclear Regulatory Commission Mail Stop 0-15 D21 30 1-4 15- I607 5

Criscione, Lawrence From: Lawrence Criscione <lscriscione@hotmail.com>

Sent: Friday, May 24, 2013 2:24 AM To: CHAIRMAN Resource; Bell, Hubert; Doane, Margaret; Vietti-Cook, Annette; Borchardt.

Bill; Ash, Darren; Sealing, Donna; Zobler. Marian; Grodin, Maryann; Lee, David; Vrahoretis, Susan; FOIA Resource Cc: Billie Garde; Scott Hodes; Louis Clark; jruch@peer.org; Dave Lochbaum; Jim Riccio; paul@t imes.org; Tom Zeller; Carl Stelzer; Paul Blanch; Kay Drey; Joe Carson; Sullivan, Randy; clerner@osc.gov; cmcmullen@osc.gov; Galloway, Melanie; Ferrante, Fernando; Mitman, Jeffrey; Perkins, Richard; Bensi, Michelle; Philip, Jacob; Sancaktar, Selim; NTEU, Chapter 208; tomd@whistl eblower.org; sshepherd@cliffordgarde.com; kdouglas@peer.org

Subject:

Inquiry Regarding Overdue FOJA Appeals 2013-004A, 006A, 009A, OlOA. 011A & 013A Attachments: Inquiry for FOIA Appeal 2013-004A, 006A, 009A, 010A, 011A and 013A.pdf

Dear Dr. Macfarlane,

Mr. Bell, Ms. Doane, Ms. Vietti-Cook, Mr. Borchardt, Mr. Ash and Ms. Sealing:

The NRC has not been living up to its legal obligations under the Freedom of Information Act. All of you have a role in ensuring the NRC staff meets it obligations under the FOIA so please do not ignore the attached letter by merely panning it off to the Inspector General as a so-called "allegation". I know you are busy individuals who have much more on your plate than my concerns, but the Freedom of Information Act is federal law and this issue is worthy of review by someone on your staff. If you or any of your staff would like to discuss these matters with me, I would welcome the opportunity to schedule an "open door" meeting.

V/r, Larry Criscione 573-230-3959 "If responsibility is rightfully yours, no evasion, or ignorance, or passing the blame can shift the burden to someone else."

From: Jsuiscione@hotmail.com To: donna.sealing@nrc.gov; bill.borchardt@nrc.gov; darren.ash@nrc.gov CC: bpgarde@cliffordgarde.com; sshepherd@cliffordgarde.com; louisc@whistleblower.org; linda.kilgore@nrc.gov; gerald.mcclellan@nrc.gov; laura.pearson@nrc.gov; paul@times.org; dlochbaum@ucsusa.org; tom@huffingtonpost.com

Subject:

RE: ln.quiry Regarding FOIA Appeals 2013-004A, OOSA, 006A & 007A Date: Fri, 5 Apr 2013 16:31:01 -0400

Donna, Thank you for the reply below and for the release of MLlOI730329 earlier today.

! am in the process of looking for an attorney to assist me in my attempts to get the following documents released in their entirety:

• ML081640244

• ML090570779

• ML091170104

• ML100780084

• ML101610083

• ML101900305

• ML110740482

• ML111460063

• My 2012-09-18 letter to the NRC Chairman

• My 2012-09-18 email to the NRC Chairman The above documents were provided by me to several congressional offices in 2012 in failed attempts to get the NRC Chairman and our oversight committees interested in questioning the NRC's effectiveness in addressing the flooding issues posed by Jocassee Dam. I am currently being investigated by the Office of the Inspector General to determine if enough evidence exists to indict me for felony charges under 18 USC §1030 for providing the above "Official Use Only" documents ta Congressional staffers. It is unfathomable to me that the NRC's OlG would threaten me with a felony indictment while engaging in the protected activity of bringing safety concerns to members of Congress just because the documents delivered were designated "Official Use Only" by mid-level staffers in NRR - but that is the position where I currently find myself.

I have significant concerns with the commitment the NRC has to Open Government. I would like the NRC to formally admit that the documents listed above should be publicly released (formally admit by either releasing these documents via a FOIA request or voluntarily}. If I cannot get the NRC to release the above listed documents publicly, then I intend to have a federaT°judge rule that these documents should be publicly released.

I believe that, to a large extent, the NRC has beer "stonewalling" on this issue. t believe that the documents listed above were inappropriately marked "Officral Use Only" and withheld from the public for years. I believe these documents were then inappropriately deliye~ and withheld when requested by Paul Koberstein under FOIA 2012-0106, FOIA 2012-0127 and FOIA 2012-.0128. Similarly, I believe that Dave Lochbaum (FOIA 2013-0008) and Tom Zeller (FOIA 2013-0013) have experienced inappropriate delays. Based on your assurance in the email below that Appeals 2013-004A, OOSA and 006A are in process, I will forgo filing a Federal suit until May 13, 2013. **

I recognize that the FOlA staff has limited control over what is released and its timeliness and I appreciate the efforts being made by your staff to respond to requests in a timely manner. But I can no longer accept continued tardiness on the part of the Office of the General Counsel, the Office of Chairman, the Office of Nuclear Reactor Regulation and the Office of the Inspector General. Open Government is part of our mission and dedicating resources to review and release documents is something we must do.

Again, based on your assurances below, I am willing to wait until May 13, 2013 before filing a suit in Federal District Court in accordance with the appeals process outlined in 10 CFR §9.29(c). Please, however, do not delay in processing my appeals. I currently meet the requirements to continue to federal court (20 working days) and am agreeing to delay that step in an attempt to be agreeable. Please also attempt to be agreeable 2

with me and have my appeals processed as quickly as possible and not arbitrarily wait until May 13th. I am far from the only person interested in these documents and NRR should have been releasing them all along.

Thank you, Larry From: Donna.Sealing@nrc.gov To: lscriscione@hotmail.com; Bill.Borchardt@nrc.gov; Darren.Ash@nrc.gov CC: bpgarde@cliffordgarde.com; sshepherd@cliffordgarde.com; louisc@whistleblower.org; Linda. Kilgore@nrc.gov; Gerald.McClellan@nrc.gov; Laura.Pearson@nrc.gov Date: Fri, 5 Apr 2013 15:15:36 -0400

Subject:

RE: Inquiry Regarding FOIA Appeals 2013-004A, OOSA, 006A & 007A Good Afternoon Mr. Criscione, I would like to provide you an update on the status of your FOIA appeals:

2013-004A- the records are being re-reviewed by the program office. We anticipate receiving them today or Monday. Following our review and action the records will be sent to OGG for concurrence.

2013-00SA - the records have been re-reviewed by the program office and OGG. Further coordination is ongoing.

2013-006A - the records have been re-reviewed by the program office and OGC. Further coordination is ongoing.

2013-007A- Complete. The response was sent to you today_

Please know that the FOIA office is processing your appeals as quickly as possible.

Donna Sealing From: Lawrence Criscione [mailto: lscriscione@hotmail.com]

Sent: Wednesday, April 03, 2013 12:38 AM To: Borchardt, Bill; Sealing, Donna; Ash, Darren Cc: Billie Garde; sshepherd@cliffordgarde.com; Louis Clark; Kilgore, Linda; McOellan, Gerald

Subject:

Inquiry Regarding FOIA Appeals 2013-004A, 00SA, 006A & 007A Please see the attached letter.

It has been 26 working days since the NRC acknowledged receipt of FOIA Appeals 2013-004A, 2013-00SA, 2013-006A and 2013-007A.

To my knowledge, I have neither received a response to these appeals nor received notice that the NRC would need longer than 20 working days to provide a response.

The next step in the process provided in 10 CFR §9.29(c) is to sue in Federal District Court in order to obtain the requested documents in an unredacted form.

I intend to retain an attorney and file a lawsuit in Federal District Court. Please confirm for me that the NRC has neither responded to the FOIA Appeals mentioned above nor provided me notice that you require more 3

than 20 working days due to exceptional circumstances. If you have either responded to these FOIA Appeals or sent me notice of exceptional circumstances, then please provide me those letters via email.

Thank you, Larry Criscione 573-230-3959 4

Friday, May 24, 2013 1412 Dial Court Springfield, ll 62704 Allison Macfarlane, Chairman Hubert Bell, Inspector General Margaret Doane, General Counsel Annette Vietti-Cook, Secretary of the Commission Bill Borchardt, Executive Director for Operations (EDO)

Darren Ash, Chief Freedom of Information Act Officer Donna Sealing, FOIA/Privacy Act Officer United States Nuclear Regulatory Commission Washington, DC 20555-0001

SUBJECT:

Overdue FOIA Appeals 2013-004A, 2013-00GA, 2013-009A, 2013~010A, 2013-0llA, and 2013-0BA

Dear Dr. Macfarlane,

Mr. Bell, Ms. Doane, Ms. Vietti-Cook, Mr. Borchardt, Mr. Ash and Ms. Sealing:

As of today the NRC is overdue on providing me a response to six separate freedom of Information Act appeals encompassing 13 specific documents and, in the case of appeal FOIA 20l3-013A, an as yet unspecified amount of correspondence between the NRC and other federal agen~es.

On February 23, 2013 I submitted appeals for the following FOIA requests:

• FOIA 2013-0107 regarding ML081640244, ML082750106, ML090570779,"ML091380424, ML092020480

• FOIA 2013-0109 regarding ML110740482 On February 26, 2013 the NRC assigned the following tracking numbers to my appeals:

• FOIA 2013-004A for the appeal for FOIA request 2013-0107

• FOIA 2013-00GA for the appeal for FOIA request 2013-0109 As of today, I have been waiting over twelve weeks (63 working days) for a response.

On March 29, 2013 I submitted appeals for the following FOIA requests:

• FOIA 2013-0126 regarding ML111460063, ML100780084, ML101610083, ML101900305

• FOIA 2013-0127 regarding my 19-page 2012-09-18 letter and email to the NRC Chairman

• FOIA 2013-0128 regarding Ml091170104 That same day, the NRC assigned the following tracking numbers to my appeals:

• FOIA 2013-009A for the appeal for FOIA request 2013-0126

• FOIA 2013-0lOA for the appeal for FOIA request 2013-0127

• FOIA 2013--0llA for the appeal for FOlA request 2013-0128 As of today, I have been waiting nine weeks (45 working days) for a response.

On April 25, 2.013 I submitted an appeal for the following FOIA request:

FOIA 2013-0129 regarding correspondence between the NRC and other federal agencies concerning the redactions made to the Gl-204 Screening Analysis Report That same day, the NRC assigned my appeal the following tracking number:

FOIA 2013-0BA for the appeal for FOIA request 2013-0129 Per 10 CFR §9.29(c) the NRC was supposed to provide me a response within 20 working days. As of today it has been 21 working days (over four weeks) and yet I have not received a response. Under e,cceptional circumstances, the NRC is allowed to take 30 working days to answer my appeals. I have not heard from the NRC invoking any exceptional circumstances and I do not believe any exceptional circumstances apply.

On April 5, 2013 I received the following updates from the NRC concerning some of my appeals:

• FD/A 2013-004A - the records ore being re-reviewed by the program office. We anticipate receiving them today or lv1onday [April 8, 2013). Following our review and action the records will be sent to OGC for concurrence.

• FD/A 2013-006A - the records have been re-reviewed by the program office and the Office of General Counsel (OGC). Further coordination is ongoing.

It has now been seven weeks (35 working days) since I received the update above, yet I have not had my appeal answered. Why is the NRC's Office of the General Counsel stonewalling my attempts to get records through the FOIA appeals process? It is the job of the NRC's General Counsel to advise the agency on following the law, not on how to skirt our legally mandated requirements.

Today, I have reached the point where, under the NRC's regulations and pursuant to the Freedom of Information Act, my next step is to sue in federal court to obtain unredacted copies of the following documents:

• ML081640244, Information Request Pursuant to 10 CFR 50.54(F) Related to External Flooding, Including Failure of the Jocassee Dam at Oconee Nuclear Station, Units 1, 2, and 3 (TAC Nos.

MD8224, MD8225, and rv108226)

• M LOB2750106, Oconee, Units 1, 2 and 3 - Response to 10 CFR 50.54(/) Request

• ML090570779, Oconee Nuclear Station Units 1, 2, and 3, Evaluation of Duke Energy Carolinas September 26, 2008, Response to External Flooding, Including Failure of the Jocassee Dam

• ML091380424, Oconee Nuclear Station, Slides for Closing rvleeting May ll, 2009 with Duke on the Oconee Flooding Issue

• ML092020480, Oconee, Units 1, 2, & 3, Final 60-Day Response to Reference 2

• ML110740482, Analysis Report far the Proposed Generic Issue on Flooding of Nuclear Power Plant Sites Fallowing Upstream Dom Failures

• ML111460063, Oconee Nuclear Site, Units 1, 2, and 3. Response to Confirmatory Action letter (CAL) 2-10-003, doted April 29, 2011

• Ml100780084, Generic Failure Rate Evaluation for Jocassee Dom Risk Analysis

• ML101610083, Oconee Nuclear Station, Units 1, 2, and 3, - External Flood Commitments

• ML101900305, Identification of a Generic External Flooding Issue Due ta Potential Dam Failures

• ML091170104, Oconee Nuclear Station, Units 1, 2 And 3- Non-concurrence on Evaluation of Duke Energy Carolinas, UC September 26, 2008, Response to Nuclear Regulatory Commission Letter Dated August 15, 2008 Related to External Flooding

• ML12312A402, my 19-page 2012-09-18 letter to the NRC Chairman

• my 2012-09-18 email to the NRC Chairman

• all written correspondence and the notes of any phone calls or meetings between the NRC and other federal agencies (OHS, FERC USACE, lVA, and FEMA) concerning the redactions which were done to ML112430114 to enable it to be released publicly as ML113500495 On April 23, 2013 I met with a FOIA attorney, Scott Hodes, regarding the feasibility of suing the NRC in order to obtain the release of unredacted versions of the documents above. After reviewing my appeals, he informed me that I had a strong case in terms of getting the requested documents released without redactions. But he also informed me that it was unlikely I would be found to be "Entitled" to recovery of attorney's fees since I am a mere private citizen. And he estimated his fees at between

$3,000 and $9,000.

Last year, my wife endured $193,000 in medical treatments combating breast cancer. Although I am only liable for a fraction of that, I am in no way flush with cash. $3,000 is twice the amount my wife would like to spend on a new sofa- something we've put off due to medical bills. $9,000 is the estimate we received for a new roof. How do you think my wife feels about me spending $3k to $9k on a FOIA lawsuit in the name of Open Government and the greater public good? How do you think she feels about me suing the NRC- my employer whom I rely on for healthcare? We have kids in private high school, college and medical school who require our money. I am sure you have calculated that, like most Americans, I can ill afford to squander my meager resources on a FOIA lawsuit. And, although I might have a strong case, since I am unwilling to spend the money pursuing it, you have nothing to fear from your abuse of federal law. But that does not make it right. You have a duty under the Freedom of Information Act to promptly either release unredacted versions of the documents requested or to provide the rationale for the exemptions you have cited as the bases for your redactions.

In September 2012 I provided ten of the documents listed above (ML081640244, ML090570779, ML091170104, ML100780084, ML101610083, Mll01900305, ML110740482, ML111460063, my 19-page 2012-09-18 letter, and my 2012-09-18 email to the Chairman) to the US Special Counsel and to the staffs of about two d1;,zen members of Congress. Since these ten documents are considered by the NRC to contain "Official Use Only- Security-Related Information" I am currently being investigated by the NRC's Office of the Inspector General to determine if there is evidence which warrants charging me with a federal felony 1 for gathering these documents and releasing them outside of the agency.

' 18 USC§ 1030, The Computer fraud and Abuse Act of 1984 as modified by the USA PATRIOT Act

It should be noted that, according to the NRC, "Official Use Only" is on unofficial administrative marking that has no legal import, and only serves os an alert that the document should be reviewed before release in response to o FOIA request or other public disclosure and it is not indicio of any national security c/assification. 2 Yet the NRC's Office of the Jnspector General is nonetheless seeking who in the US Congress released the ten "Official Use Only" documents mentioned above to Green Peace.

"Transparency" is not merely a word in the NRC's mission statement; "Transparency" is a vital ingredient for the credible regulation of our nation's national nuclear enterprise. Jt is important to me that the NRC recognizes the documents I gave to the Congressional staffers - and which subsequently ended up on a public web-page of the Huffington Post-were documents which should have always been available to the public. It is important to me that the NRC recognizes that our correspondence with licensees concerning significant safety hazards (e.g. a "Fukushima-style" accident in South Carolina due to a catastrophic dam failure) is something the American public should have been made aware of. For that reason, I have requested these documents under the Freedom of Information Act and, when I received redacted versions of the documents, I have filed appeals.

The NRC has a duty to ensure truly security sensitive information does not inadvertently get disclosed to the public. In this letter I am not writing you to appeal your decision to make redactions to the information you released to me under my FOIA requests. I am writing to you to criticize your stonewalling. By law, you have a right to exempt from release material which you believe is exempted under the freedom of Information Act. And by NRC regulations, I have a right to administratively appeat your decisions and. within 20 working days, either be provided the documents sought or be notified of the denial, explaining the exemptions relied upon and how the exemption5 apply to the agency records withheld. 3 I am writing you to bring it to your attention that the NRC has not, within the time frame prescribed by the Freedom of Information Act and our own regulations, provided me an explanation for the exemptions applied to my Freedom of Information Act requests.

There are some who will claim that the time frames prescribed by the Freedom of Information Act are unrealistic. There is certainly some truth to this when one considers large FOIA requests. However, exceptional circumstances do not apply to my FOIA requests or their appeals since the number of documents requested are within a reasonable scope to be located and reviewed within the 20 working days prescribed in the Freedom of Information Act. There is no reason that my appeals have not yet been closed. Consider the following:

FOIA Appeal 2013-004A: This appeal was submitted 63 working days ago and entails five documents. Two of the documents (ML081640244 and ML090570779) are correspondence from the NRC to Duke Energy. ML081640244 was released as ML12363A132 and had partial redactions in four paragraphs. ML090570779 was released as ML12363Al33 and had full or partial redactions in seven paragraphs.

Two of the documents (ML082750106 and ML092020480} are correspondence from Duke Energy to the NRC. Although Duke Energy requested that this correspondence be withheld per 10 CFR § 2.390, none of the redactions in these documents pertained to proprietary information (Exemption 4) but rather all the redactions concerned information thought to be security 2 November 15, 2012 response from the NRC to the Union of Concerned Scientists denying FOIA request 2013-0034.

3 10 CFR § 9.29

related. Therefore, the decision to release this information on appeal did not need to be re-confirmed with Duke Energy since it was already determined that none of the redactions contained proprietary information. ML082750106 was released as ML12363A129 and had five paragraphs redacted. ML092020480 was released as ML12363Al3~ and had redactions in three paragraphs.

One of the documents (M L091380424) is a slide show presented by Duke Energy to the NRC. As they do with all their correspondence, Duke Energy requested that the slide show be withheld per 10 CFR § 2.390. And as with the correspondence, the NRC did not find anything in the slide show that was proprietary. All the exemptions concerned information thought to be security related (i.e. Exemption 7(fl was the only exemption claimed). ML091380424 was released as lv'iL12363Al34 and had redactions on seven of the slides.

For all the redactions mentioned in the paragraphs above, Exemption 7(f) was claimed. So appeal FOIA 2013-004A concerned just one exemption applied to five documents in 2.5 separate places. Had the NRC been willing to take the time to review just one redaction every working day, we would have only taken 25 worklng days to process my appeal; as of today it has been 62 working days. It is not a lack of manpower or time which has caused FOIA 2013-004A to be 8 weeks overdue; it is a lack of respect at the N RC for the legal requirements of the Freedom of Information Act.

FOIA Appeal 2013-006A: This appeal was submitted 63 working days ago and entails one document: ML110740482, the initially-routed version of the Analysis Report for the Proposed Generic Issue on Flooding of Nuclear Power Plant Sites Folfowing Upstream Dam Failures which was authored by Richard Perkins, Shelby Bensi, Jake Philip and Selim Sancaktar. The minimally-revised final version ofthis report (ML112430114) was released publicly as ML113500495 in March 2012. and was released under FOIA request 2012-0106 to Paul Koberstein on July 2, 2012 as ML12188A239.

Whether or not this report could be released publicly was the subject of multiple meeting in 2011 and 2012. The redacted version released in March 2012 was the result of a decision by several NRC offices as well as other federal agencies and much thought and analysis was placed into it. It contains redactions on 15 pages. Assuming it takes a month to arrange a two day meeting with the concerned parties {e.g. TVA, FERC, OHS, USACE) and then an hour to discuss each redacted page, the NRC could have easily met our 30 working day time limit for processing appeal FOIA 2013-006A. It is not a lack of manpower or time which has caused FOIA 2013-006A to be 8 weeks overdue; it is a lack of respect at the NRC for the Freedom of Information Act.

FOIA Appeal 2013-009A: This appeal was submitted 45 working days ago and entails four documents (Mllll460063, ML100780084, ML101610083, and ML101900305). Two of the documents (ML111460063 and ML101610083} are correspondence from Duke Energy to the NRC. As they do with all their correspondence, Duke Energy requested that ML111460063 and ML101610083 be withheld per 10 CFR § 2.390.

ML111460063 was requested by Paul Koberstein (FOIA 2012-0128) on January 27, 2012. (333 working days ago), by Jim Riccio (FOIA 2012-0325) on September 18, 2012 (171 working days ago), by Carl Stelzer (FOIA 2.013-01161 on February 11, 2013 (73 working days ago) and by myself on February 12, 2013 (71 working days ago). ML111460063 is only 16 pages long but still

has not yet been reviewed and released_ Although Duke Energy needs to review this document before its release, the NRC has had at least a full quarter to have Duke Energy perform this review. Why, in over 14 weeks, has the NRC not been able to coordinate with Duke Energy to review these 16 pages? It is due to a lack of respect at the NRC for the time limits prescribed in the Freedom of Information Act.

ML101610083 was released as ML13051A896 in response to FOIA 2013-0113 by Joe Carson. It had two paragraphs redacted. Both redactions were under Exemption 7(f). As with all the documents thus far that Duke Energy has claimed to be proprietary, Exemption 4 was not used for any of the redactions. Appeal 2013-009A has been open for nine weeks, yet in nine weeks the NRC has been unable to review these two paragraphs.

One of the documents (ML1007800841 is a NRC generic failure rate evaluation for Jocassee Dam risk analysis prepared by Jim Vail, Fernando Ferrante and Jeff Mitman. This document was released as Mll303~A084 to Paul Blanch under FOIA 2013-0110. This redacted document contained only one redaction: a figure detailing a generic cross section of Jocassee Dam. This same figure was presented in a March 25, 2013 Duke Energy slide show that was made publicly available on the NRC's website as ML13084A022. I pointed this out to the NRC in an April 11, 2013 update to FOIA 2013-009A and. instead of releasing ML100780084 without redactions, the NRC removed ML13084A02f- I take it by NRR's removal of ML13084A022 that the NRC has decided the redacted figure from ML100780084 was a necessary redaction of security related information. Yet, despite this reaffirmation of our redaction (a redaction we felt so confident in that we removed ML13084A022 from the public domain). FOIA 2013-009A remains open.

One of the documents (ML101900305) is an internal NRC memo identifying a generic external flooding issue due to potential dam failures. This document was released to Kay Drey under FOIA 2013~0133 as ML13039A086 and contained redactions in two paragraphs. A virtually identical document was released to Jim Riccio under rDIA 2012*0325 with no redactions.

So, the processing of appeal FOIA 2013-009A involves the review of five redacted paragraphs encompassing just one FOIA exemption (Exemption 7(f)) and 16 pages of an as yet unreviewed document. Yet in nine weeks the NRC has not yet been able to process FOIA 2013-009A. 1t is not a lack of manpower or time which has caused FOIA 2013-009A to be 5 weeks overdue; it is a lack of respect at the NRC for the Freedom of Information Act.

FOIA Appeal 2013-0lOA: This appeal was submitted 45 working days ago and involves two documents which are both in the possession of the NRC Chairman: my 19-page 2012-09-18 letter and the email to which it was attached. My letter was originally requested by Dave Lochbaum on October 9, 2012 (F01A 2013-0008) and by Tom Zeller on October 15, 2012 (FOIA 2013-0013). Tom Zeller requested expedited processing since at the time he was preparing a story on the NRC's handling of the Oconee flooding concerns. After 152 working days, Mr. Zeller has yet to receive the letter through the NRC's FOIA process, although he was able to obtain it through other channels.

On February 13, 2013 I requested my 19-page letter and the accompanying email when I noticed that it had not yet been released to Zeller and Lochbaum. At the time, Dave's request was 18 weeks old. It has now been more than 32 weeks since Dave made his request and 14 weeks since my request (156 and 72 working days respectively). That is, after waiting 32 weeks for a

19-page letter, Mr. Lochbaum has still not received even a redacted copy. There is no e><cuse for this. The NRC Chairman is, for some reason, stonewalling Mr. Zeller and Mr. Lochbaum. If the Chairman's office had reviewed a mere one page a day, we could have met our legally required 20 working day limit for releasing the letter under the FOIA.

FOIA Appeal 2013-0llA: This appeal was submitted 45 working days ago and involves one document: ML091170104, the Non-Concurrence submitted by Melanie Galloway on the NRC's response to Duke Energy's 2008-09-26 letter. On April 16, 2013 I received a redacted copy of Ms. Galloway's request; the version I received had redactions in 3 paragraphs and Exemption 7(f) was used for all redactions. So, once again, only one e><emption to review applied to just three paragraphs - yet this appeal is 25 working days overdue. It is not a lack of manpower or time which has caused FOIA 2013-0llA to be 5 weeks overdue; it is a lack of respect at the NRC for the Freedom of Information Act.

FOIA Appeal 2013-013A: This appeal was submitted 21 working days ago and involves correspondence between the NRC and other federal agencies regarding the Generic Issue 204 screening analysis report. The N RC informed me in February 2013 that it was going to cost me

$112.72 to pay for four hours of search fees in order to locate the documents requested. I agreed to pay these fees on March 13, 2013. It has been more than ten weeks (52 working days) since I agreed to pay for the documents requested and I have still not received them. I estimate that the FOIA package consists of less than ten emails. If the N~C took four hours to find the 10 emails and then reviewed one email a week for the past ten weeks, I would have my requested documents by now. Can the NRC not find the time to review1qne email a week? It is not a lack of manpower or time which has caused FOIA 2013-013A to go overdue; it is a lack of respect at the NRC for the Freedom of Information Act.

Again, although I do not agree with the supposed security concerns surrounding the documents I have requested, this letter is not about security. It is about straight-forward FOIA requests taking unacceptably long times to be answered. It is about the NRC having a lack of respect for our commitments under the Freedom of Information Act. It is about the office of the NRC Chairman stonewalling on the release of a letter which, after 8 months, she still does not know how to address.

In the President's 2009-01-21 memorandum on the Freedom of Information Act he states:

The Freedom of Information Act should be administered with o clear presumption: In the face of doubt, openness prevails.

There is obviously much doubt at the NRC regarding the redactions appealed under FOIA 2013-004A, 2013-00GA, 2013-009A, 2013-0l0A, 2013-0llA and 2013--013A. If there was not a great amount of doubt, then these FOIA appeals would not be, respectively, 63, 63, 45, 45, 45 and 21 working days old.

As shown in the indented paragraphs above, these appeals are not overdue because of lack of resources or time; these appeals are overdue solely either because of doubt regarding whether the material should be withheld or because of nefarious stonewalling. If the NRC did not doubt the basis for the redactions, then the appeals could have easily been dosed by now. But our President has given us a simple solution: In the face of doubt, openness prevails. I urge you to take the President's direction to heart, and release in their entirety all the documents discussed above. It is what the President expects you to do. Please do not require me to sue the NRC in order for you to perform your legal obligations under the Freedom of Information Act; it is not right that you place that financial burden upon myself

and my family in order to force the release of documents which should have all along been publically available. If you do not wish to release unredacted versions of the documents, then at least please follow the law and meet your time obligations under the Freedom of Information Act for providing me explanations for the FOIA exemptions applied to justify the redactions. The time limits prescribed in the Freedom of Information Act have also been incorporated into the NRC's regulations. Should we not be setting an example for our licensees by following our own regulations?

I am writing those addressed on this letter in the hopes that you will take this information to heart and ensure the agency lives up to our legal obligations under the Freedom of Information Act. Please do not pass this letter off to the NRC's Office of the Inspector General as yet another allegation. If I have an allegation to make, I will submit an OSC Form 12 to the United States Office of the Special Counsel.

Although I Hve in Springfield, IL, I work in Rockville, MD and thus requested of you that you please do not send documents to my home in Springfield, IL as I will not get them in a timely manner. Other than the Office of the Inspector General, the NRC has thus far done well at following that request. If you have actually already responded to my FOIA Appeals through the US mail, then please send me the responses via email so that I have an electronic record of them.

Please continue to send all written correspondence to me via email at LSCri~c1onc@hotmail.com. If your processes will not allow you to do this, then please contact me via phone or email and I will come by the FOIA desk to pick up the correspondence.

Very respectfully, Lawrence S. Criscione, PE (573) 230*3959 Cc: Billie Garde, Clifford & Garde lryll Robbins-Umel, National Treasury Employees Union Scott Hodes, attorney Louis Clark, Government Accountability Project Jeff Ruch, Public Employees for Environmental Responsibility David lochbaum, Union of Concerned Scientists Jim Riccio, Green Peace Paul Koberstein, Cascadia Times Tom Zeller, Huffington Post Carl Stelzer, reporter Paul Blanch, consultant Kay Drey, citizen Joe Carson, citizen Randy Sullivan, steward Carolyn Lerner, US Special Counsel Catherine McMullen, US Office of Special Counsel

Unionof d *

• ucsusa.org Two Brattle Square, Cambridge, MA 02138-3780 t 617.547.5552 f 617.864.9405

[ Concerne Scientists 18251< Srreer NW, Suite 800, Washington, DC 20006-1232 t 202.223.6133 f 202.223.6162 2397 Shattuck Avenue, Suite 203, Berkeley, CA 94704-1567 t 510.843.1872 f 510.843.3785 One North LaSnllc Street, Suire 1904, Chicago, 11. 60602-4064 t 312.578.1750 f 312.578.l 751 MARCH 13, 2015 MATERIALS FOR MEETINGS WITH CHAIRMAN STEPHEN G. BURNS AND COMMISSIONER JEFF BARAN DAVID LOCHB,AUM DIRECTOR, NUCLEAR SAFETY PROJECT

AGENDA

<D Lying to the American Public about Nuclear Safety

@ Improperly Withholding Information from the Public Lessons from Fort Calhoun

© UCS Annual Report on the NRC and Nuclear Plant Safety February 26, 20 IS Page 2

Lying to the American Public about Nuclear Safety

Background

On April 19, 2011, the NRC staff conducted the an nual assessment meeting for the Oconee nuclear station in Seneca, South Carolina (ML l 111707829). The first of two bullets on slide 2 of the NRC staff's slideshow indicated that a purpose of the meeting was to provide:

• "A public.forum for discussion of the licensee's performance in 2010" With Slide 15, the NRC staff summarized a yellow and a white finding by NRC inspectors during 2010.

But at a public meeting conducted 5 weeks after :flooding caused three reactor meltdowns at Fukushima, the NRC staff fai led to me ntion to the p ublic that it had issued a Confirmatory Action Letter (MLJ 2363A086) to Duke on June 22, 2010, req uiring the company to take 15 measures to better protect the three reactors at Oconee from meltdown from flooding damage should the upriver Jocassee Dam fail.

The NRC staff had a tremendous opportunity to inform the public that, nine months prior to Fukushima, the NRC had identified similar flood protection vulnerabilities at Oconee and had taken steps to ensure those vulnerabilities were addressed . In fact, several of the 15 measures had already been implemented while several others were far down the road to implementation.

But instead the NRC staff opted to play "duck and cover" and lie to the public.

The stated purpose of the meeting was to discuss licensee performance in 2010.

The licensee's performance in 2010 prompted the NRC to issue a Confirmatory Action Letter (CAL) in June 2010. CALs are rarely issued - the NRC staff issued more white findings in 2010 than CALs. The NRC staff chose to discuss its white finding at Oconee but remain silent about its CAL.

That incredibly poor judgment by the NRC staff undermined my trust and confidence in the agency. I now find it harder to believe it whe n the NRC staff says some condition is okay or that a problem has been resolved.

Given the staff's demonstrated propensity for hiding relevant information from the public and instead providing the public with a distorted, misleading version of nuclear plant safety, how can UCS and the public trust this agency to tell the whole truth and not just selective sub-truths?

February 26, 20 IS Page 3

Improperly Withholding Information from the Public

Background

In October 2004, the NRC staff sought and obtained Commission permission to withhold all incoming documents from licensees about fire protection and emergency planning (ML042310663). Since then, the NRC deve loped guidance documents and revised regulations (10 CFR 2.390 in 2008) for licensees to ask NRC to withhold all or portions of docwne nts they submit that contain sensitive security information. Despite this process being available for years, the NRC staff continues to withhold incoming fire protection and emergency planning documents, even when licensees do not request such withholding.

Many of the withheld documents involved license amendment requests. By improperly withholding these documents, the NRC staff deprived the public of rights under federal regulations to contest requested actions.

The NRC staff has been handling submissions of Updated Safety Analysis Reports (USAR) oddly. Some USARs are placed into public ADAMS in their entirety (e.g., Beaver Valley Unjt 2 at ML14339A408, Byron and Braidwood at ML1436A393, and Watts Bar Unit 2 at ML14155A256). Some USARs are withheld from public ADAMS in their entirety (e.g., Diablo Canyon per NRC memo at ML14022A l 20). The NRC staff has told the Senate EPW staff, the NRC OIG staff, and me three different stories last fall on why USARs may or may not be publicly available.

The USARs are key licensing documents, perhaps the single most important licensing document in exi stence. The USARs are heavily relied upon by licensees and NRC staff in prepari ng, reviewing, and approving operating license amendments. By i mproperly deprivi ng the public of access to these vital documents, the NRC staff is unfairly impeding the public's ability to participate in licensing proceedings in a meaningful way.

T hat so many USARs are publicly available in ADAMS strongly suggests there is no legitimate reason for withholding the other USARs.

UCS and others frequently request NRC Communication Plans via the Freedom of Information Act. The NRC staff typically provides the requested plans with onl y personal privacy information (i.e., home telephone numbers) redacted (e.g., Salem/Hope Creek Safety Concious Work Environment issues at ML060620540, Oconee flood protection 50.54 letter at ML12326A389, I.ndian Point CST pipe leak at ML l 10030931, Seabrook concrete degradation at ML14 16 LA638, Davis-Besse concrete degradation at ML14171A271, etc.). But the NRC staff has also provided plans with all information, except page numbers, redacted contending the withheld information was "deliberative process" (Diablo Canyon seismic re-analysis at MLl 5033A280).

The NRC staff is playing games. The issues at Indian Point and Seabrook involved aging issues at a time when the reactors were seeking operating license renewals. The NRC staff provided essentially unredacted Commu nicati.on Pl ans.

February 26, 20 IS Page 4

But the NRC staff redacted virtually the entire Communications Plan for Diablo Canyon's seismic issues. True, the seismic issues are cunently being monitored by the State and the NRC within an operating license re newal application proceeding, but again that was also the case at Indian Point and Seabrook.

UCS Recommendation UCS wrote to the NRC Chairman last November aski ng that the Commission reverse the policy of blanket withholding all incoming fire protection and emergency planning records.

UCS wrote to the NRC Inspector General asking that OIG investigate whether the agency violated federal regulations by approving licensi ng requests about fire protection and emergency planning while denying the public access to the underlying documents.

The NRC should suspend issuing all operating licenses and approving alJ amendments to operating licenses until the agency has made publicly available all the documents it has been improperly withholding the past decade.

Withholding license amendment requests and USARs deprived the public its rights under federal regulations to participate in these licensing actions in a meaningful way. By improperly withholding these documents, the NRC staff is essentially giving its licensees uncontested proceedings and transforming purportedly open processes into closed, secret negotiations between the NRC staff and licensees.

The NRC cannot contest the "cozy" label by being "cozy" with licensees and denying the public its legal rights.

NOTE: UCS does not challenge the fact that certain information needs to be withheld. When information satisfies one or more of the criteria for withholding, then by all means withhold it.

But when information does not meet any of the criteria for withholding, then don't withhold it.

NOTE: UCS also recognizes that given the sheer volume of docume nts handled by the NRC staff, there will be occasional mistakes made withholding some that should not be and disclosing others that should be. UCS 's concerns are not with the exceptions to the rule. UCS's concern is when the rule is mis-applied allowing many documents to be handled improperly .

February 26, 20 IS Page S

Lessons from Fort Calhoun

Background

Fort Calhoun restarted in December 2013 following a 30-month outage to fix many longstanding safety problems.

It marked the 52 nd time that a U.S. reactor remafoed shut down longer than a year to correct safety problems.

Fort Calhoun 's outage bega11 in Apri l 20 1 I , about a month after Fukushima.

The NRC formed a task force to extract lessons leamable from Fukushima and cutTently has a range of activities underway to implement those lessons.

The NRC did nothing to forma lly extract lessons learnable from Fort Calhoun.

Many of the safety problems that had to be fixed before NRC allowed Fort Calhoun to restart existed since 1996 or before.

Why had all the licensee's testing and NRC's inspections missed these safety problems?

Four times since the Reactor Oversight Process (ROP) was initiated, the NRC staff retuned Fort Calhoun to Action Matrix Column 1. Each time, the many safety problems that were finally fixed in 201 1-2013 had existed but were overlooked.

Twice since the ROP was initiated, the NRC staff returned Fort Calhoun to Action Matrix Column 2 from Column 3. Each time, the many safety problems that were finally fixed in 201 1-2013 had existed but were overlooked.

UCS Recommendation The NRC should formally evaluate Fort Calhoun's year-plus outage to identify lessons that enhance the effectiveness of its oversight efforts.

For example, the evaluation could take the safety issues o n the NRC staff's Confirmatory Action Letter and reported to the NRC via Licensee Event Reports (LERs) from 20 10 to 2014 and identify the NRC inspection procedures that examined these areas. These applicable inspection procedures could then be assessed to see whether changes in what gets examined or how it gets examined could have detected these problems. Similarly, the evaluation might identify changes to the process used by the NRC staff to return Fort CaJhoun to Action Matrix Columns 1 and 2 despite numerous safety problems that kept the reactor shut down for safety problems for 30 month. These might have been missed opportunities to have detected and corrected at least some of the many safety problems sooner.

Reference Document UCS Issue Brief " No More Fukushimas; No More Fort Calhouns," February 20 15.

February 26, 20 IS Page 6

UCS Annual Report on the NRC and Nuclear Plant Safety

Background

UCS initiated a series of ann.ual reports on the NRC and nuclear power plant safety in March 201 1. Each report summarizes the events the prior year that prompted the NRC to dispatch special inspection teams (SlTs) or augmented inspection teams (AlTs). Each report s ummarizes positive outcomes achieved by the NRC the prior year as well as negative outcomes.

This year's report noted that both the number and the severity of events triggering SITs/AITs continues a declining trend a nd acknowledges that NRC's efforts very likely factored in these positive trends.

This year's report commends the NRC for undertaking two pro-active measures: the Reactor Oversig ht Process self-assessments and the Knowledge Management Program.

This year's report criticizes the NRC for improperly withholding documents from the public that denied meaningful participation in NRC's regulatory decision-making processes, for tolerating safety culture metrics that it found unacceptable when observed at nuclear plant sites and for subjecting two NRC engineers to recurring investigations because they voiced safety concerns.

UCS Recommendation The NRC instituted its Lessons Learned Program a decade ago. SECY-14-0 IO I (ML14175A780) is the most recent annual report on that program. It is a well-intended program gone terribly awry.

A total of merely seven items were presented to the Lessons-Learned Oversight Board between August 2013 and May 2014. That list included only two reports from the NRC's Office of the Inspector General (OIG), no reports from the Government Accountability Office (GAO), none from the US Congress, and none from any external entity other than one classified, non-public DOE report.

It's virtually impossible to drnw meaningful insights about trends and emerging problem areas from such paltry inputs. To be effective, the NRC's Lessons Learned Program must consider more inputs. For example, all OIG reports and GAO should be entered into the program.

Materials from external organizations should be reviewed for possible inclusion in the program.

The proliferation of inputs to the Lessons Learned Program would not require a linear increase in the full-time equivalents needed to implement the program. The NRC staff responds to OIG and GAO reports. Thus, the additional work load for the Lessons Learned Program would be to monitor the findings and recommendations from the inputs seeking to identify common themes and whether a problem found here might also exist the re.

Reference Documents UCS report dated M arch 2015, "The NRC and Nuclear Power Plant Safety in 2014: Tarnished Gold Standard."

February 26, 20 IS Page 7

UNITED STATES NUCLEAR REGULATORY COMMISSION REGION II 245 PEACHTREE CENTER AVENUE NE, SUITE 1200 ATLANTA, GEORGIA 30303-1257 April 25, 2011 Mr. T. Preston Gillespie, Jr.

Site Vice President Duke Energy Carolinas, LLC Oconee Nuclear Station 7800 Rochester Highway Seneca, SC 29672

SUBJECT:

PUBLIC MEETING

SUMMARY

• • • OCONEE NUCLEAR STATION ... DOCKET NOS. 50-269, 50-270 AND 50-287

Dear Mr. Gillespie:

This refers to the meeting conducted on April 19, 2011. in Seneca, SC. The purpose of this meeting was to discuss the NRC's Reactor Oversight Process (ROP) and the NRC's annual assessment of plant safety performance for the period of January 1, 2010, to December 31, 2010. The major topics addressed were the NRC's assessment program and the results of the assessment. A listing of meeting attendees and information presented during the meeting are enclosed.

In accordance with 10 CFR 2.390 of the NRC's "Rules of Practice," a copy of this letter will be available electronically for public inspection in the NRG Public Document Room (PDR) or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS).

ADAMS is accessible from the NRG Web site at http://www.nrc.gov/reading-rm/adams.html (the Public Electronic Reading Room).

Should you have any questions concerning this meeting, please contact me at (404) 997-4607.

Sincerely, IRA/

Jonathan H. Bartley, Chief Reactor Projects Branch 1 Division of Reactor Projects Docket Nos.: 50-269, 50-270, 50-287 License Nos.: DPR-38, DPR-47, DPR-55

Enclosures:

1. List of Attendees

2. Powerpoint Presentation cc w/encls: (See page 2)

Oconee Annual Public eeting April 1 2011 M AFFILIATIO

]) ,:1,6

' - <Z..

Enclosure 1

2 Ocone Annual Public eeting ril 19 2011 AFFfllATI Enclosure 1

3 Oconee nnual Public Meetin pril 19, 2011 NAME AF lLlATI I

I Enclosure 1

N

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J

(/)

0 uC UJ

2 tl Purpose of Today's Meeting

• A public forum for discussion of the licensee's performance in 2010

• Address the performance issues identified in the annual assessment letter 2 Protecting People and the Environment Enclosure 2

14 tl Oconee Assessment Results January 1 - December 31, 2010 Oconee Units 1, 2, and 3 were in the Degraded Cornerstone Column for all four quarters due to a Yellow Finding (Units 1, 2, and 3) and a White Finding (Units 2 and 3).

14 Protecting People and the Environment Enclosure 2

15

• tl Safety Significant Findings or Pis

• Yellow Violation of TS 3.10.1 for SSF reactor coolant makeup subsystem inoperable for greater than allowed by technical specifications (Units 1, 2, and 3)

• White Violation of Criterion XVI, Corrective Action, for a failure to promptly identify and correct an adverse condition affecting operability of the Unit 2 and Unit 3 standby shutdown facility (Units 2 and 3) 15 Protecting People and the Environment Enclosure 2

UNITED STATES NUCLEAR REGULATORY COMMISSION REGION II 245 PEACHTREE CENTER AVENUE NE, SUITE 1200 ATLANTA, GEORGIA 30303-1257 June 22, 2010 CAL 2-10-003 Mr. David A. Baxter Site Vice President Duke Energy Carolinas, LLC Oconee Nuclear Station 7800 Rochester Highway Seneca, SC 29672

SUBJECT:

CONFIRMATORY ACTION LETTER - OCONEE NUCLEAR STATION, UNITS 1, 2, AND 3 COMMITMENTS TO ADDRESS EXTERNAL FLOODING CONCERNS (TAC NOS. ME3065, ME3066, AND ME3067) .

Dear Mr. Baxter:

This letter confirms commitments made by Duke Energy Carolinas, LLC (the licensee) in your June 3, 2010, letter. Specifically, the June 3, 2010, letter listed compensatory measures the licensee will implement at the Oconee Site and Jocassee Dam to mitigate potential external flooding hazards resulting from a potential failure of the JocasseeDam. The compensatory measures listed in the enclosure shall remain in place until final resolution of the inundation of the Oconee site from the failure of the Jocassee Dam has been determined by the licensee and agreed upon by the U.S. Nuclear Regulatory Commission (NRC), and all modifications are made to mitigate the inundation. The compensatory measures and implementation dates are set forth in the enclosure to this letter.

In addition to implementing the compensatory measures, pursuant to my telephone conversation with Mr. 8ill Pitesa of your company on June 22, 2010, you shall submit to the NRC by August 2, 2010, all documentation necessary to demonstrate to the NRC that the inundation of the Oconee site resulting from the failure of the Jocassee Dam has been bounded. Also, you shall submit by November 30, 2010, a list of all modifications necessary to adequately mitigate the inundation, and shall make all necessary modifications by November 30, 201 1, Pursuant to Section 182 of the Atomic Energy Act, 42 U.S.C. 2232, you are required to:

1) Notify me immediately if your understanding differs from tha_t set forth above;

2) Notify me if for any reason you cannot complete the actions within the specified schedule and advise me in writing of your modified schedule in advance of the change; and

3) Notify me in writing when you have completed the actions addressed in this Confirmatory Action Letter.

6-3

DEC 2 Issuance of this Confirmatory Action Letter does not preclude issuance of an Order formalizing the above commitments or requiring other actions on the part of the licensee; nor does it preclude the NRC from taking enforcement action for violations of NRC requirements that may have prompted the issuance of this letter. In addition, failure to take the actions addressed In this Confirmatory Action Letter may result in enforcement action.

This Confirmatory Action Letter will remain in effect until the NRC has concluded that all modifications necessary to adequately mitigate the inundation of the Oconee site from the failure of the Jocassee Dam has been completed.

Sincerely, IRA/

Luis A. Reyes Regional Administrator Docket Nos. 50-269, 50-270, 50-287 License Nos.: DPR-38, DPR-47, DPR-55

Enclosure:

Compensatory Measures cc w/encl: (See next page)

COMPENSATORY MEASURES NUMBER COMPENSATORY MEASURES IMPLEMENTATION STATUS 1 Perform flooding studies using the Hydrologic Engineering Complete Center - River Complete Analysis System (HEC-RAS) model for comparison with previous DAMBRK models to more accurately represent anticipated flood heights in the west yard followina a postulated failure of the Jocassee Dam.

2 Maintain plans, procedures (Jocassee and Oconee) and Implemented guidance documents implemented (Oconee\ to address m!atioo :' oostula~d ~

l(bJ(?)(F) *vo;; j:'c ~'~"

nd are cons1s1em I

w1 curren perspectwes gamed o owing the HEC-RAS sensitivity studies and the subsequent 2D inundation studies.

To the extent practical, the mitigation strategy is similar to

• existing extensive plant damage scenario (8.5.b) equipment, methods and criteria.

3 Duke Energy Hydro Generation will create a guidance Implemented document to consolidate river management and storm management processes. (Includes the Jocassee Development and the Keowee Development.)

4 Maintain a dam safety inspection program that includes: Implemented (1) weekly dam safety inspections of the Jocassee Dam by Duke Energy personnel, (2) dam safety inspections following any 2-inch or greater rainfall or felt seismic event, (3) annual dam safety inspections by Duke Energy, (4) annual dam safety inspections by FERC representatives, (5) five year safety inspections by FERC approved consultants. and (6) five year underwater inspections.

5 Maintain a monitoring program that includes: {1) continuous Implemented remote monitoring from the Hydro Central Operating Center in Charlotte, NC, (2) monthly monitoring of observation wells, (3) weekly monitoring of seepage monitoring points, and (4) annual surveys of displacement monuments.

6 Assign an Oconee engineer as Jocassee Dam co~tact to Implemented heighten awareness of Jocassee status.

7 Install ammeters and voltmeters on Keowee spillway gates Complete for eoulpment condition monitoring.

8 Ensure forebay and tailrace level alarms are provided for Complete Jocassee to support timely detection of a developing dam failure .

9 Add a storage building adjacent to the Jocassee spillway to Complete house the backup spillway gate operating equipment (e.g.,

compressor and air wrench).

Enclosure

JIO 2

NUMBER COMPENSATORY MEASURES IMPLEMENTATION STATUS 10 Obtain and stage a portable generator and electric drive Complete motor near the Jocassee spillway gates to serve as a second set of backuo soillwav aate ooeratina eouioment.

11 Conduct Jocassee Dam failure Table Top Exercise with 06/30/2010 Oconee participation to exercise and improve response procedures.

12 Instrument and alarm selected seepage monitoring locations 08/31/2010 for timely detection of dearadina conditions.

13 Provide additional video monitoring of Jocassee Dam (e.g., 08/31/2010

. dam toe, abutments, and groin areas) for timely assessment of degrading conditions.

14 Obtain and stage a second set of equipment (including a 11/30/2010 B.5.b-type pump) for implementation of the external flood mitigation guidance.

15 Conduct Jocassee Dam/Oconee Emergency Response 12/31/2010 Organization Drill to exercise and improve response procedures.

NOTES:

1. The word "complete" is used in the status column if the commitment regards a specific one-time equipment-related or analysis-related action that has been completed .

2. The word "implemented" is used in the status column if the commitment describes an on-going action that has been implemented.

Enclosure

POLICY ISSUE (Notation Vote)

October 19, 2004 SECY-04-0191 FOR: The Commissioners FROM: Luis A. Reyes Executive Director for Operations /RA/

SUBJECT:

WITHHOLDING SENSITIVE UNCLASSIFIED INFORMATION CONCERNING NUCLEAR POWER REACTORS FROM PUBLIC DISCLOSURE PURPOSE:

To obtain Commission approval of guidance to be issued to the Nuclear Regulatory Commission (NRC) staff, power reactor licensees, and other agency stakeholders for withholding sensitive unclassified (nonsafeguards) information from public disclosure.

SUMMARY

In a staff requirements memorandum dated May 7 , 2004, the Commission directed the NRC staff to develop guidance to ensure information that could reasonably be expected to be useful to potential adversaries is withheld from public disclosure. In determining whether information should be withheld or released , the NRC staff must attempt to appropriately balance our desire to maintain the openness of NRC's regulatory processes with the need to protect the public from possible terrorist threats. This paper provides for Commission review and approval the NRC staff's proposed approach for determining the appropriate handling of information and more specific guidance for withholding or releasing information about nuclear power reactors (Attachment 1).

CONTACTS: William D. Reckley, NRR/IRT 301 -415-1323 Margie Kotzalas, NRR/IRT 301-415-2737

Subject Discussion and/or typical controls Test Program (Initial and lnservice Uncontrolled Inspections and Testing)

Accident Analysis Uncontrolled - Accident analyses typically included in licensing-related correspondence involve conservative models to demonstrate a plant's ability to respond to design basis transients (i.e., nonsecurity related events),

and is not treated as sensitive .

Technical Specifications (including Uncontrolled Bases)

Quality Assurance Uncontrolled Fire Protection Incoming documents are initially profiled as nonpublic -

staff will review for release upon request. Most information related to fire protection will not need to be designated as sensitive. Drawings showing details such as the specific location of equipment, doorways, stairways, etc. are to be withheld under 10 CFR 2.390 .

Emergency Planning Incoming documents are initially profiled as nonpublic -

staff will review for release upon request. Most information related to emergency planning will not need to be designated as sensitive . Special attention is needed to determine if information relates to the response by a licensee or government agency to a terrorist attack. Note that some State and local governments consider parts of their emergency plans to be sensitive.

Security Information related to security programs at nuclear reactors is generally designated as SGI and is protected in a manner similar to classified confidential information .

Security-related information within the inspection program and reactor oversight process is withheld from public disclosure under 10 CFR 2.390.

Risk-Informed Decisionmaking Uncontrolled - exceptions include information related to (e.g., documents related to risk- security activities (e .g. , vulnerability assessments) and informed licensing actions, information related to uncorrected configurations or accident sequence precursor conditions that could be useful to an adversary. Special (ASP) analyses, significance attention should be applied to this area and information determination process (SOP) should be withheld if it describes a vulnerability or plant-notebooks, design certifications) specific weakness that is more helpful to an adversary than are the insights provided in open source literature.

Detailed computer models have been and will continue to be withheld from public disclosure.

Beaver Valley Power Station FENOC' P.O. Box 4 Shippingport, PA 15077 ArstEnergy Nuclear Operating Company Eric A. Larson. 724-682-5234 Site Vice President Fax: 724-643-8069 November 24, 2014 L-14-360 10 CFR 50.71(e) 10 CFR 50.54(a) 10 CFR 54.37(b)

A TIN: Document Control Desk U.S. Nuclear Regulatory Commission Washington , DC 20555-001

SUBJECT:

Beaver Valley Power Station, Unit No. 2 Docket No. 50-412, License No. NPF-73 Submittal of the Updated Final Safety Analysis Report, Revision 21 In accordance with the requirements of 10 CFR 50.71 (e) , the FirstEnergy Nuclear Operating Company (FENOC) is hereby submitting to the Nuclear Regulatory Commission (NRC) the Beaver Valley Power Station (BVPS), Unit No. 2, Updated Final Safety Analysis Report (UFSAR) Revision 21 in CD-ROM format. This submittal reflects facility and procedure changes implemented between November 2, 2012 (the end of Refueling Outage 16), and May 23, 2014 (the end of Refueling Outage 17), along with several changes implemented after Refueling Outage 17.

In accordance with NRC guidance for electror'!ic submissions, Attachment 1 provides a listing of the document components that comprise the enclosed CD-ROM. In addition to the UFSAR, the CD-ROM includes the BVPS, Unit No. 2 Licensing Requirements Manual, Revision 81, and the Technical Specification Bases, Revision 27. The Technical Specification Bases are submitted in accordance with Technical Specification 5.5.10.d, "Technical Specifications (TS) Bases Control Program. "

In accordance with 10 CFR 50.54(a), FENOC is hereby submitting a copy of the current revision of the FENOC Quality Assurance Program Manual (QAPM). The QAPM, Revision 19, is included in the enclosed CD-ROM.

Attachment 2 includes a summary of information removed from the BVPS, Unit No. 2 UFSAR in accordance with Appendix A to Nuclear Energy Institute (NEI) 98-03, "Guidelines for Updating Final Safety Analysis Reports ," Revision 1.

Beaver Valley Power Station, Unit No. 2 L-14-360 Page2 FENOC conducted a review of BVPS, Unit No. 2 plant changes for 10 CFR 54.37(b) applicability. No components were determined to meet the criteria for newly identified components as clarified by Regulatory Issue Summary (RIS} 2007-16, Revision 1, "Implementation of the Requirements of 10 CFR 54.34(b} for Holders of Renewed Licenses."

There are no regulatory commitment changes to be submitted in accordance with NEI 99-04, "Guidelines for Managing NRC Commitment Changes."

This certifies, to the best of my judgment and belief, that Revision 21 of the BVPS, Unit No. 2 UFSAR accurately presents changes made since the previous submittal that are necessary to reflect information and analysis submitted to the Commission or pursuant to Commission requirements.

This letter contains no new regulatory commitments. If you have any questions regarding this report, please contact Mr. Thomas A. Lentz, Manager - Fleet Licensing, at 330-315-6810.

Sincerely, Eric A. Larson Attachments:

1. Document Components on CD-ROM

2. Information Removed from the BVPS, Unit No. 2 UFSAR

Enclosures:

Beaver Valley Power Station, Unit No. 2 UFSAR, Licensing Requirements Manual, Technical Specification Bases, and QAPM (on CD-ROM) cc: NRC Region I Administrator NRC Resident Inspector NRC Project Manager Director BRP/DEP (without Enclosures)

Site BRP/DEP Representative (without Enclosures)

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.:pw bpo}AOAM&)AMS Exelon Generation Byron/Braidwood Nuclear Stations Updated Final Safety Analysis Report (UFSAR)

Revision 15 December 2014 Byron Station, Units 1 and 2 Braidwood Station, Units 1 and 2 Facility Operating License Nos. NPF-37 and NPF-66 FacilityOperating License Nos. NPF-72 and NPF-n NRC Docket Nos. STN 50-454, STN 50-455, and 72-68 NRC Docket Nos. STN 50456, STN 50-457, and 72-73

I 1ArsHwo-\:;f>7m87unreBaema~sEj~ oof)ii@~~b l i c ADAMS Attachment 1 to be withheld from Public Disclosure Under 10 CFR 2.390. When separated from this Enclosure, this letter is decontrolled.

Tennessee Valley Authority, Post Office Box 2000, Spring City, Tennessee 37381-2000 May 30, 2014 10 CFR 50.4 10 CFR 50.34(b) 10 CFR 2.390(d)(1)

U.S. Nuclear Regulatory Commission ATTN: Document Control Desk Washington, D.C. 20555-0001 Watts Bar Nuclear Plant, Unit 2 Docket No. 50-391

Subject:

WATTS BAR NUCLEAR PLANT (WBN)- UNIT 2 - FINAL SAFETY ANALYSIS REPORT (FSAR), AMENDMENT 112

References:

1. TVA letter to NRC dated February 13, 2014, "Watts Bar Nuclear Plant (WBN) - Unit 2 - Final Safety Analysis Report {FSAR), Amendment 111"

2. TVA letter to NRC dated May 8, 2014, "Watts Bar Nuclear Plant (WBN)

Unit 2 - lnservice Test (1ST) Program/Preservice Test {PST) Program" This letter transmits WBN Unit 2 FSAR Amendment 112 (A 112), which reflects changes made since the issuance of Amendment 111 on February 13, 2014 (Reference 1). contains a summary listing of FSAR sections and corresponding Unit 2 change package numbers associated with the A 112 FSAR changes.

FSAR A 112 is contained on the enclosed Optical Storage Media (OSM #1 ) (Attachment 1).

The FSAR contains security-related information identified by the designation "Security-Related Information -Withhold Under 10 CFR 2.390." TVA hereby requests this information be withheld from public disclosure in accordance with the provisions of 10 CFR 2.390. A redacted version of the FSAIR is contained on OSM #2 (Attachment 2),

which is suitable for public disclosure. contains a listing of the FSAR pages that have been redacted. Enclosure 3 lists the files and file sizes on the security-related OSM (OSM #1 ), and Enclosure 4 lists the files and file sizes on the publicly available OSM (OSM #2).

In regard to Supplemental Safety Evaluation Report (SSER), Appendix HH Open Items, the following can be stated to address three open items:

U.S. Nuclear Regulatory Commission Page 2 May 30, 2014 For Open Item No. 1, involving power assisted cable pulls. WBN Unit 2 construction has not made nor will not be making any such power assisted cable pulls in the completion of WBN Unit 2. A112 addresses Open Item No. 35, involving Component Cooling System (CCS), and Open Item No. 91. involving Feedwater Purity In addition, FSAR Change Package 2-112-10 addresses a clarification to the 1ST Program code of record as committed to in Reference 2.

Attachment 3 provides replacement disks for Amendment 111 provided in Reference 1.

During the course of Amendment 112 preparation, it was discovered that the discs containing the Amendment 111 files previously provided by Reference 1 did not contain Section 6.2.6.

Enclosures 5 and 6 have been updated to reflect this addition for file sizes related to the security-related and the publicly available OSMs for Amendment 111 .

There are no new commitments made in this letter. This letter does not close any "Generic Communications." If you have any questions. please contact Gordon Arent at (423) 365-2004.

I declare under the penalty of perjury that the foregoing is true and correct. Executed on the 30th day of May, 2014.

Respectful!~ /

?f0.1--.f~ -

Raymond A. Hruby. Jr.

General Manager, Technical Services Watts Bar Unit 2

Enclosures:

1. WBN Unit 2 FSAR A 112, "Summary Listing1of A 112 FSAR Changes"

2. WBN Unit 2 FSAR A 112,

• summary of Redacted Pages"

3. WBN Unit 2 FSAR A 112, "List of files and file sizes on the security-related OSM (OSM #1)"

4 . WBN Unit 2 FSAR A 112. "List of files and file sizes on the publicly available OSM (OSM #2)"

Attachments:

1. OSM #1 : WBN Unit 2 FSAR Amendment 112 - Security-Related Information - Withhold Under 10 CFR 2.390

2. OSM #2: WBN Unit 2 FSAR Amendment 112 - Publicly Available Version

3. OSM #1 : WBN Unit 2 FSAR Amendment 111 - Security-Related Information - Withhold Under 10 CFR 2.390 OSM #2: WBN Unit 2 FSAR Amendment 111 - Publicly Available Version cc: See Page 3

June 23, 2014 MEMORANDUM TO: Michael T. Markley, Chief Plant Licensing IV-1 Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation FROM: Peter J. Bamford, Project Manager IRA/

Plant Licensing IV-1 Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation

SUBJECT:

DIABLO CANYON POWER PLANT, UNITS 1 AND 2 - REVIEW OF FINAL SAFETY ANALYSIS REPORT UPDATE, REVISION 21 (TAC NOS. MF2945 AND MF2946)

This memorandum documents the in-office review of Revision 21 to the Final Safety Analysis Report (FSAR) Update for Diablo Canyon Power Plant (DCPP), Units 1 and 2, dated September 16, 2013 (not publicly available). The FSAR Update was submitted by Pacific Gas and Electric Company (PG&.E, the licensee), in accordance with Title 10 of the Code of Federal Regulations (10 CFR) 50.71 (e). PG&E follows the guidance of Nuclear Energy Institute (NEI) 98-03, Revision 1, "Guidelines for Updating Final Safety Analysis Reports," and NEI 99-04, Revision 0, "Guidelines for Managing NRC Commitment Changes."

The time requirements for FSAR submittals are stated in 10 CFR 50.71(e)(4). Revisions must be filed annually or 6 months after each refueling outage provided the interval between successive updates does not exceed 24 months. In its letter dated December 8, 1997, the licensee requested an exemption from the time requirements stated in 10 CFR 50.71(e)(4) for DCPP, Units 1 and 2. As discussed in the licensee's exemption request, DCPP, Units 1 and 2, have a common FSAR. The rule would require FSAR updates within 6 months of each refueling outage, resulting in required FSAR updates every 12 months. As such, the licensee requested an exemption to allow the updates of the FSAR to be submitted within 6 months after each DCPP, Unit 2, refueling outage, but not to exceed 24 months from the last update. The Nuclear Regulatory Commission (NRC) staff approved the exemption in a letter dated March 12, 1998 (ADAMS Accession No. ML022400141 ). DCPP, Unit 2, completed its last refueling outage on March 23, 2013. The previous update of the DCPP FSAR, Revision 20, was submitted on November 16, 201 1 (ADAMS Accession No. ML11332A181 ). Therefore, the September 16, 2013, submittal date for Revision 21 of the DCPP FSAR meets the requirements approved in the exemption since the submittal was within 6 months of the last DCPP, Unit 2, refueling outage and does not exceed 24 months from the last FSAR update.

As stated in the licensee's letter dated September 16, 20 13, Revision 21 of the DCPP FSAR contains changes to reflect the plant configuration as of March 23, 2013. This meets the requirement in 10 CFR 50.71 (e)(4) which states that the revisions must reflect all changes up to a maximum of 6 months prior to the date of filing.

M. Markley Amendments Revision 21 covered changes to the FSAR Update during the period June 6, 2011, through September 16, 2013. Each of the license amendments issued during the period were reviewed for impacts on the FSAR Update and included Amendment Nos. 211/213 through 216/218 (for Units 1 and 2, respectively). The following three amendments were identified which resulted in impacts on the FSAR Update:

• Amendment Nos. 211/213, dated March 29, 2012 (ADAMS Accession No. ML120790338), modified FSAR Update Sections 8.1.4.3, "Regulatory Guides," and 8.3.1.1.13.1, "Diesel Generator Unit Description," to identify an exception to Revision O of Regulatory Guide 1.9, "Application and Testing of Safety-Related Diesel Generators in Nuclear Power Plants";

• Amendment Nos. 212/214, dated October 31 , 2012 (ADAMS Accession No. ML120300114), modified FSAR Update Sections 15.2.7.3, "Results," and 15.2.16, "References," to adopt a new analysis methodology for establishing the reduced power range neutron flux high setpoint for one inoperable main steam safety valve; and

• Amendment Nos. 214/216, dated January 9, 2013 (ADAMS Accession No. ML12345A379), modified FSAR Update Section 4.3.2.2, "Power Distribution," to allow the use of the Best Estimate Analyzer for the Core Operations-Nuclear (BEACON) Power Distribution Monitoring System methodology,. as described in Westinghouse Electric Company LLC's WCAP-12472-P-A, Addendum 1-A, "BEACON Core Monitoring and Operation Support System," January 2000.

The FSAR Update changes for Amendment Nos. 211/213 were not apparent in Revision 21 . The licensee had reorganized the FSAR Update, removing the numbered Sections 8.1.4.3 and 8.3.1.1.13.1. However, the licensee included the amendment's language in Section 8.3.1.1.6.3.13, "Safety Guide 9, March 1971 - Selection of Diesel Generator Set Capacity for Standby Power Supplies," and Section 8.3.1.1.6.1.13, "Safety Guide 9, March 1971 - Selection of Diesel Generator Set Capacity for Standby Power Supplies." With the inclusion of this exception in these two sections, the NRC staff concludes that the FSAR Update is consistent with the updates stated in Amendment Nos. 211/213.

Inspection Reports The inspection reports (IR) for the appropriate period were reviewed. The first, IR 2012004, involved a non-cited violation of Appendix B, Criteria V, "Instructions, Procedures, and Drawings," after PG&E failed to promptly evaluate the operability of plant structures, systems, and components (SSCs) after a newly discovered local fault line. The IR, dated February 14, 2012 (ADAMS Accession No. ML120450843), indicated a need to update the FSAR Update with the new seismic information. The second, IR 2011005, dated November 13, 2012 (ADAMS Accession No. ML12318A385), involved a Severity Level IV violation where the licensee failed to update the FSAR Update with information describing how plant SSCs meet 10 CFR Part 50,

ML13155A238), documented an event in which the licensee identified an unanalyzed condition due to a nonconservative change in the FSAR Update Chapter 15, "Accident Analyses ," which would have resulted in a higher received rad iological dose received by control room operators during an accident, but wou ld not exceed General Design Criteria 19. The LER described the corrective actions taken to add ress the event and NRG staff confirmed that Revision 21 of the FSAR Update incorporated the corrective actions described in the LER.

The NRG staffs sampling review of the FSAR Update, Revision 21 included the applicable amendments, IRs, and LERs. The staff did not find any commitments to modify the FSAR Update in its review . Based on the review, the staff concludes that the FSAR Update, Revision 21 was submitted consistent with the requirements in 10 CFR 50 .71(e).

Docket Nos. 50-275 and 50-323 DISTRIBUTION:

PUBLIC LPL4-1 R/F RidsNrrDorllpl4-1 Resource RidsNrrLAJBurkhardt Resource RidsNrrPMDiabloCanyon Resource RidsRgn4MailCenter Resou rce ADAMS Accession No. ML14022A120 OFFICE NRR/DORL/LPL4-2/PM N RR/DORL/LPL4-1 /PM NRR/DORL/LPL4-1/LA NRRIDORL/LPL4-1/BC NRR/DORL/LPL4-1/PM NAME MOrenak P,Bamford JBurkhardl MMarkley PBamford DATE 6/17/14 6/17/14 6/17/14 6/23/14 6/23/14

'61 I ICIAE use 0142 I 81 1l4RIT I l<ELA i 26 :UfiiPMQJ,Otf COMMUNICATIONS PLAN Davis-Besse Nuclear Power Plant Steam Generators Replacement Inspection January 2014 Point Of

Contact:

Atif Shaikh, RIii 630-829-9824 G OALS

• Be prepared to answer public questions on the steam generators replacement inspection

• Be prepared to answer internal questions on the steam generators replacement inspection KEY MESSAGES The NRC's oversight of the steam generator replacement process at Davis-Besse is comprehensive to ensure the safety of the plant and the public.

Inspections started on December 2, 2013, and these inspections will continue through the actual replacement installation work beginning in February 2014 the post installation tests performed by the licensee, and the plant's subsequent return to power. The results of this NRC inspection will be documented in a publically available report that will be issued by the NRC within 45 days of the conclusion of this inspection .

NRC inspectors will conduct direct observations along with reviews of records, calculations, and procedures to provide adequate assurance that the plant modifications associated with the replacement steam generators meet applicable regulatory requirements.

Inspections will be conducted by a team of inspectors with expertise in metallurgy, structural design, heavy loads, radiatiol) protection, security, and other relevant areas.

NRC inspectors will review the licensee's evaluation of relevant steam generator replacements operating experience (OpEx) to determine whether the licensee has adequately evaluated the OpEx potentially relevant to the Davis-Besse steam generators repla~ement.

NRC inspectors will ensure that any safety concerns identified during the inspection are adequately addressed by the licensee.

The NRC staff invited the public to listen in via conference call to its initial inspection planning meeting with the licensee during which the licensee provided a presentation and NRC staff answered questions from the public. That presentation remains available to the public in the NRC's ADAMS document system (ML No. 13078A249) via the NRC public web site.

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NRC staff also discussed inspection plans with the public during the last end-of-cycle meeting near the plant and provided information in a meeting with local government officials. In addition, the NRC staff also plans to conduct a webinar to answer questions from the public related to the replacement steam generators at Davis-Besse.

BACKGROUND Davis-Besse is a Babcock and Wilcox (B&W) designed plant. It is a two loop plant and has two steam generators. The original steam generators are B&W designed once-through steam generators (OTSGs). The new replacement steam generators are also B&W designed OTSGs.

There are two basic types of steam generators used in the United States: recirculating steam generators (RSGs) and OTSGs. RSGs have tubes that are shaped like an inverted "U" while OTSGs have straight tubes. There are currently 59 units in the U.S. with RSGs and 6 units with OTSGs.

All steam generators are designed to limit the possibility of tube-to-tube contact since such a condition can result in the tubes rubbing against each other and leading to tube thinning. The thinning of the tube wall due to the interaction of two structures (e.g., tube-to-tube or tube-to-support) is commonly referred to as tube wear.

In Early 2012, the licensee for San Onofre Nuclear Generating Station Unit 3, which has recirculating steam generators, detected hundreds of tubes with wear attributed to tube-to-tube contact caused by a fluid-elastic instability. Some of these indications were significant including one that leaked during normal operation and led to the plant shutting down. These indications occurred after approximately 20 months of operation. In total, eight tubes were found that did not meet the structural integrity performance criteria specified in the plant's technical specifications. The steam generators at San Onofre were designed and fabricated by Mitsubishi Heavy Industries (MHI).

In early 2010, Three Mile Island, Unit 1 (TMl-1), completed the replacement of both its original OTSGs with new OTSGs that were fabricated by AREVA (France). The first inservice inspection of the TMl- 1 replacement steam generators took place in fall 2011 . During these inspections at TMl- 1, the licensee detected several tubes with indications. A more detailed in_

vestigation led the licensee to conclude that these indications were a result of tube wear due to tube-to-tube contact.

In fall of 2013 the licensee for TMl-1 conducted their second inservice inspection of the replacement steam generators. The licensee reviewed their testing data and concluded that tube-to-tube wear was progressing slowly "as predicted" based on first cycle wear data from fall of 2011.

In spring 2006, Oconee, Unit 3 conducted the first inservice inspection of the replacement OTSGs that were installed in 2004. The inservice inspection results revealed widespread wear degradation of the tubing at tube support plant (TSP) locations. Oconee, Units 1 and 2, have also experienced this widespread tube wear degradation at TSP locations following the first cycle of operation since installation in 2004. In spring of 2012 the licensee for Oconee, Unit 3 also detected wear attributed to tube-to-tube contact in the replacement OTSGs. The Oconee replacement OTSGs were designed and fabricated by B&W Canada and are similar to the design of the Davis-Besse replacement OTSGs.

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.J- iliFIGIP 1 I 155 AMI X a SFGI 1B'IY RS: tlil 1141 Ulti!!ttlllU The licensees for Oconee and TM I evaluated the severity of the tube-to-tube wear indications in their replacement steam generators. These evaluations concluded that the wear indications did not compromise tube integrity (i.e ., the tubes could still perform their intended function consistent with their original design and licensing basis). In addition, this tube-to-tube contact did not involve high energy fluid-elastic instability such as that experienced at SONGS. NRC staff reviewed the licensees' evaluations and did not identify any safety issues that would affect plant restart.

Q&As FOR DAVIS-BESSE STEAM GENERATORS REPLACEMENT

1. Will this be a like for like replacement?

No, this will not be a like for like replacement. Although the replacement steam generators (SGs) are manufactured by the same vendor as the original SGs, there are some differences in the design of these replacement SGs. Hence, the licensee is required to perform an evaluation consistent with Section 50.59 of Title 10 to the Code of Federal Regulations (1 O CFR) for the proposed modifications associated with the replacement SGs .1

2. What are the differences between the old and new steam generators?

The differences between the original SGs and the replacement SGs all relate to physical design aspects such as the material, component dimensions , number of tubes per generator, etc. The required design and safety functions of the SG remain the same.

The NRC staff will be reviewing the 50 .59 analyses supporting the design changes to ensure that plant safety is not impacted by the changes and to evaluate licensee's conclusions regarding whether NRC approval is needed for the changes.

3. Can you explain the 50.59 process?

The 50.59 process involves implementation of the requirements set forth in 10 CFR 50 .59, a federal regulation . Essentially, whenever a licensee decides to implement a physical change to its facility or change how the facility is operated, used or controlled ,

including changes to safety analyses or documentation (e .g., a calculation , evaluation ,

methodology), then the 50.59 regulation allows a licensee to implement that change without prior NRC approval only if the change meets criteria pertaining to the safety implications of the proposed change. Generally, if a change would place the plant outside of the safety boundaries established by the NRC and reflected in the plant's licensing basis (e .g., NRC regulations , licensing documents, and plant safety ana lyses report), then prior NRC approval would be needed .

4. Can you explain the license amendment process?.

In general , the license amendment application revi~w process has 5 steps : 1)

Conducting an acceptance review to determine if there is sufficient technical information for the NRC staff to begin a detailed technical review of the application ; 2) Publishing a Federal Register notice that describes the application and gives members of the public an opportunity to comment on the proposed determination of No Significant Hazards Consideration (NSHC) and request permission to be a party in a hearing ; 3) Conducting a technical review to determine the safety of, and the environmental impacts of, the proposed amendment, including, if needed, sending requests for additional information (RAls) to obtain additiona l information needed to make an informed regulatory decision ;

4) Completing the NRC staffs safety evaluation (SE), which provides the technical, OFFICIO I. WIE 8Ub¥ oecam, ""l!tJll,l!!8 IUPOFUUIJ!t 11014 3

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Qf PCI ft Is I !&Ii Otllslf &liiUAllil/ Ails ft iEEi' ltlFOPM CIIOt I safety, and legal basis for the NRC's decision on the amendment application: and 5) If the amendment is approved, issuing the amendment and publishing a Federal Register notice that indicates when the amendment issued and whether the NRC staff made a final NSHC determination.

5. How do 50.59 analyses and license amendments assure safety?

Both processes provide assurance that changes at operating reactors are not made until the safety significance of the change is considered. As noted above, the 50.59 process can lead to a determination that a 50.90 license amendment application. and thus prior NRC approv*aI. is required .

6. What changes would require a license amendment?

If a proposed change is not consistent with a technical specification or places the plant outside of the safety boundaries established in the plant's licensing basis, then the change would require a license amendment.

7. Why not require a license amendment for the whole replacement?

NRC inspectors review samples of licensee 50.59 evaluations and decisions during the SG replacement inspections. If the Agency determines that a license amendment is required, the Agency can take appropriate enforcement action.

8. Are any license amendments needed for the SG replacements at Davis-Besse?

Davis-Besse submitted a license amendment request for Technical Specifications (TS) changes related to the replacement steam generators. *The NRC staff is currently reviewing this amendment request.

9. Have any concerns been raised regarding the steam generator replacement?

A request for hearing and petition to intervene on the Technical Specification (TS) license amendment request was filed in May 2013. The petitioners challenged the 10 CFR 50.59 analyses on the steam generators replacement. contending that the steam generator replacement activities required an additional license amendment request. On August 12, 2013, the Atomic Safety Licensing Board (ASLB) denied the petition, The ASLB ruled that petitioners cannot challenge 10 CFR 50.59 analyses done to support steam generator replacement activities in a proceeding on a license amendment request to change TS related to operation with the new steam generators replacement. The ASLB also ruled that a ~hallenge to adequacy of 10 CFR 50.59 analyses for replacement of the steam generators can only be made by filing a petition under 10 CFR 2.206.

10. Will the NRC staff conduct an inspection concerning the steam generator replacement activities?

Yes. The NRC staff will inspect the licensee's SG replacement activities during inspections which began on December 2, 2013. During the inspection, the NRC staff will review10 CFR 50.59 analyses done to support the steam generator replacement, as well as monitor steam generator replacement activities. An inspection report will be issued to document the results of the NRC staff's review.

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11. Will the NRC's review of the new steam generators/50.59 evaluations be complete before the plant can start up with the new steam generators?

It is the licensee's responsibility to ensure changes associated with the new steam generators are thoroughly evaluated and are safe and implemented appropriately . While the NRC staff will complete its inspection review as expeditiously as possible, we can't guarantee we will reach final conclusions prior to plant restart. The NRC staff will take the time it needs to do a thorough and rigorous inspection and to arrive at supportable conclusions. However, if at any time the NRC staff concludes that the changes are not safe, the NRC would take appropriate enforcement action, including ensuring the plant stays in or is placed in a safe condition.

12. Will there be an NRC inspection report for the DB steam generators? Will the inspection results be publicly available before restart?

The inspection results for the SG replacement inspection will be documented in a publicly available NRC inspection report which will be issued within 45 days after the completion of the inspection. The NRC inspection is extensive and includes evaluation of licensee activities that occur throughout the replacement outage and subsequent startup. Hence, the inspection report will not be available prior to startup.

13. Has the NRC incorporated lessons learned from previous SG replacements in inspections for the Davis-Besse replacements?

Recent operating experience at facilities where SGs have been replaced is being incorporated (or was incorporated) into the inspection effort for the Davis-Besse SG replacements. Region Ill staff closely coordinates with NRC headquarters to identify areas for a rigorous review of 50.59 evaluations. For the Davis-Besse steam generator replacement inspection, the NRC will be reviewing the licensees' evaluation of previous operating experience, key design differences between original and replacement steam generators, and if they exist, design change challenges discussed between the licensee and its vendor.

14. Has Davis-Besse licensee reviewed the SONGS or other SG replacement operating experience such as at TMl-1 and Oconee Unit 3 in preparation for their steam generator replacements?

Yes, Davis-Besse described in a public meeting how they have considered the SONGS, TMI , and Oconee SG tube degradation operating experience in their steam generator design and replacement activities. The NRC inspectors will review this information and the 50.59 evaluations supporting these design modifications as part of the SG replacement inspection activities.

15. Are these new steam generators considered an experimental design?

No, these new replacement SGs are not considered an experimental design. They are similar in basic design to the original SGs. There is also operating experience available regarding replacemeAt steam generators of a similar design as those being installed at Davis-Besse. The NRC inspectors will be reviewing the licensee's evaluation of the operating experience available as it pertains to the specific design.

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16. What are the main differences between the steam generators at Davis-Besse and SONGS?

• The Davis-Besse and SONGS SGs are different designs.

The steam generators at SONGS are recirculating steam generator design. They are designed for a Combustion Engineering plant which requires larger steam

• generators, averaging close to 9,000 tubes per steam generator. The SONGS SGs were manufactured by MHI and are one of the largest steam generators used in the industry. The SONGS replacement SGs were modeled for vibration using MHl's proprietary modeling code.

• The Davis-Besse Steam generators are a completely different design from SONGS in that they are once through steam generators (they do not have a U-bend tube region, instead they consist of straight tubes) and were manufactured by B&W Canada. The Davis-Besse replacement SGs were modeled for vibration using an industry accepted EPRI modeling code.

17. Will DB cut a hole in the shield building for these replacement ste am generators?

What impact will that cutting and opening process have on the existing shield building cracking?

In order to remove the old steam generators and install the new steam generators, the licensee will cut another hole in the reinforced concrete shield building. The hole will be located entirely within the boundaries of a previous hole that was cut for replacement of the reactor pressure vessel closure head, and hence will be in new concrete that was poured in 2012. Thus, the licensee does not expect there to be any impact on previously identified cracking in the older portions of the shield building wall.

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UNITED STATES NUCLEAR REGULATORY COMMISSION REGION IV 1600 E. LAMA~ BLVD AALINGTON. TX 76011 5 I I September 11, 2014 MEMORANDUM TO: Wayne Walker, Chief Division of Reactor Projects, Branch A FROM: Multiple Addressees. as listed below

SUBJECT:

COMMUNICATIONS PLAN - DIABLO CANYON POWER PLANT TOPICS OF INTEREST The purpose of this memo Is to transmit and request comments/concurrence on the enclosed Communications Plan for Diablo Canyon Power Plant (DCPP). The enclosed document is based on several iterations of informal communication plans, Q&A documents. and responses to congressional questions developed primarily by Region IV, NRR, OPA. and OCA over the last several years.

This communication plan describes the methods and resources that NRC staff will use to communicate with internal and external stakeholders regarding the DCPP seismic history and ongoing seismic evaluations being conducted in response to the Japan Lessons Learned Near-Term Task Force recommendations. Additionally, as applicable to current issues of interest to DCPP stakeholders, this communications plan integrates key messages related to spent fuel/dry cask storage and waste confidence issues (primarily by referencing other active .

communication plans).

This revision also incorporates Q&As for the most recent issues of concern including the licensee's AB-1632 Report to the State of California and the *sewell Report."

Once finalized, the Communications Plan will be posted on the OEDO Communications website for use by the communications team and more broadly across the agency as necessary.

Most of those on concurrence have each provided significant input to iterations of this document (or documents from which this Plan was developed). As such, we are requesting your review/comments/concurrence In the next few daya (due by COB, Monday, September 16). Please forward your comments/concurrence on the document to Theresa Buchanan (Theresa.Buchanan@orc.gov and/or ph: (817) 200-1503) of my staff.

The concurrence block noted on the next page will be used to document your concurrence on the enclosed Communications Plan.

Enclosure:

As stated

OFFICIAL USE ONLY - SENSITIVE INTERNAL INFORMATION (b)(5)

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OFFICIAL USE ONLY - SENSITIYE INTERNAL INFORMATION (b)(S)

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Paul Gurner Jim Riccio Tim Ju<lson Dave Lochbaum Lucil~ Hi xson Beyond Nuclear Greenpeace Nuclear Informat ion and Union of Concerned www.Enfonnal)le.com Resource Service Scientists November 19, 201 4 Dr. Allison M . Macfarlane, Chairman U.S. Nuclear Regulatory Commission Washington, DC 20555-000 I

Dear Chairman Macfarlane:

On behalf of the Freedom of Information Team, I respectfully ask the Commission to revisit and revise the information withholding policies approved i n Staff Requireme nts Memorandum (SRM) dated November 9, 2004, for SECY-04-0191 dated October 19, 2004.

In response to the tragic events of 9/1 l , the NRC staff proposed a framework for withholding information from the public that might be useful to adversaries attempti ng radiological sabotage at NRC-licensed facilities. The Commission approved the staff's proposal. In the second paragraph of the SRM, the Commission directed that "the staff should move expeditiously to complete the necessary determi nations and restore public access to the approp1iate documents."

Since that time, the NRC and the nuclear industry have developed a system for withholding the proper information. For example, the NRC released Regulatory Issue Summary RIS-05-026, "Control of Sensitive Unclassified Nonsafeguards lnfonnation Related to Nuclear Power Reactors;" RIS-05-03 1, "Control of Secmi ty-Related Sensitive Unclassified Non-Safeguards Information Handled by Individuals, Firms, and Entities Subject to NRC Regulation of the Use of Source, Byproduct, and Special Nuclear Material;" RIS-07-04, "Personal.ly Identifia ble Information Submitted to the U.S. Nuclear Regulatory Commission;" and RIS- 12-03, "Reintegratjon of Security into the Reactor Oversight Program Assessment Program." The NRC also revised IO CFR 2.390 to clarify what information must be withheld.

The nuclear industry and the NRC have operating experience using this system. Today, there is a common understanding of what information needs to be withheld along with the appropriate means for withholding it.

It is now time to restore public access to the appropriate documents while retaining necessary protection against inappropriate di sclosures.

Specifically, we ask that the framework in Attachme nt J to SECY-04-019 1 profiling all incoming documents fro m plant owners about fire protection and emergency planning as nonpublic be reversed. All incoming docume nts about fire protection and emergency planning should be profiled as public.

Plant owners now have clarity from the NRC regarding the nature and context of information that must be withheld from tthe public. Plant owners now also have an established and well-used process for submitting documents containing such information to the NRC so that the information is appropriately withheld. Thus, documents about fire protection or e mergency planning containing sensitive information will be submitted by plant owners per 10 CFR 2.390 and collateral processes, obviating the need for blanket withholding of all fire protection and emergency planning documents.

We look forward to the NRC restoring public access to appropriate fire protection and emergency planning information.

Sincerely, David Lochbaum Director, Nuclear Safety Project Union of Concerned Scientists PO Box 15316 Chattanooga, TN 37415 423-468-9272, office dlochbaum@ucsusa.org November 19, 2014 Page 2

[ Unionof d *

• uc usa.org Two Brattle qua re Cambridge, MA 02138-37 0 t 617. 547.5552 f 617.864.9405 Concerne Scientists 1825 K Street W, uite 800, Wa hington, DC 20006-1232 t 202.223.6133 f 202.223.6162 2397 hat tuck A enue, uite 203, Berkeley, CA 94704-1567 t 5I0.843.1872 f 5I0.843.3785 One Orth La alle treet, uite 1904, Chicago, IL 60602-4064 t 312.578.1750 f 312.578. 175 I December l 7, 20 14 Hubert Bell , [nspector General U.S. Nuclear Regulatory Commission Wa hington, DC 20555-0001

Dear Mr. Bell:

On behalf of the Union of Concerned Scientists, I respectfully ask the Office of the Insp ctor G neral to investigate whether the Nuclear R gulatory Commission violated federa l statutes and/or federal regulations with the information withholding policy approved in Staff Requirements Memorandum (SRM) dated November 9, 2004, for SECY-04-0191 dated October 19, 2004.

Among other things, the policy authorized the NRC staff to withhold all documents it received from plant owners involving fire protection and emergency planning. In the text on page 7 of the attachment to SECY-04-019 1, the NRC staff recognized that most of these incoming fire protection and emergency planning records wou ld not likely contain sensitive information that needed withholding from the public. Yet the NRC staff recommend d, and a majority of the Commis ion approved, withholding the e incoming records.

Earlier this year, I ubmitted reque t under the Freedom of Information Act for fire protection and emergency planning records dated October 1, 2004, or later that were not already publicly avai lable. The fire protection records provided to me in response to my FOIA requests are mostly contained in the October 3, 2014, folder in the NRC's Agencyw.icle Document Acee and Management Sy tern (ADAMS).

No documents were withheld in thei r entirety by the NRC when responding to my FOIA requests . And I have not yet located a single redaction in any of the fire protection records released by the NRC raff in response to my FOIA requests. 1 Thus , there wa no justifiable basis for withholding these records from the public.

1 ome of the emergency planning records released in respon se Lo my FOJA requests had telephone numbers and simi lar information redacted , but those redactions represented considerably less than one percent of the material in the documents.

Pri nted on 100% po r--con ume.r recycled paper

But even if the tragic events of 9/ 11 wmnnted error on the side of caution, a policy decision cannot trump or negate federal statutes and regulations. Thi policy with regm*d to fir protection and emergency planning record eems to have authorized practices that violate fed eral statutes a nd regulations. everal examples that strongly suggest that NRC violated federal statutes and regulations are summaiized in the following table.

Table l: Some of the Fire Protection Records Withheld by the NRC Date ADAMS Document Document Made Comment ML Date Public The NRC approved the exemption Re pon e to RC request for on 09/27/2006. The approval additional informat ion (ML062 I 60387) was made public ML060300439 regarding fire suppression 01/13/2006 10/03/20 14 on 10/02/2006. Lack of access to exemption request at Turkey the exemption request prevented or Poi nt U nits 3 and 4 ignificantly impaired the public's ability to oooose it.

The NRC approved the exemption Response to NRC request for on 09/27/2006. The approval add itional information (ML062160387) was made public ML0620 I OJ 40 regarding fire suppression 07/12/2006 10/03/20 14 on I0/02/2006 . Lack of access to exemption request at Turkey the exemption request prevented or Point Units 3 and 4 significant ly impaired the public's ability to oooose it.

The NRC is *ued the w11c ndment on 04/25/2007. The amendment (ML07 l l 6043 l) was made publi c License amendment request on 05/17/2007 . Notice of the for fire protection pending amendment was published ML063200100 11/15/2006 10/03/2014 req uirements at Brown Ferry in the Federal Register on Units I, 2, and 3 04/05/2007. Lack of access to the amendme nt requ st prevented or significantly impa.ired the public's ability to oooose it.

The NRC i ued license amendments on 09/16/2009. The amendment (ML082280465) wa Supplement to license made public on 09/24/2008. Notice amendment request for of the pending amendments was ML082590007 deviation from fire protection 09/05/2008 10/03/2014 publi shed in the Federa l Regi ter on requirem nts at South Texas 08/25/2009. Lack of access to the Project Un its I and 2 dev iation request prevented or significantl y impaired the public's abi lity to oppose it.

The NRC issued license amendments on 09/16/2009. The Response to NR rcquc. t fo r amendment (ML082280465) wa.

additional information made public on 09/24/2008. Notice regarding requested dev iation of the pending amendments was ML093350537 11/20/2009 10/03/20 14 from fire protection publi hed in the Federal Register on regulation, at South Texas 08/25/2009 . Lack of access to the Project Units I and 2 deviation request prevent cl or significantly impa.ired the public's ability to oooose it.

December 17, 20 14 Pag 2

Table 1: Some of the Fire Protection Records Withheld by the NRC Date ADAMS Document Document Made Comment ML Date Public The NRC approved the exemption on 03/1 1/2010. The approval Request for exemption from (MLI00340670) was made public ML090570050 fire protection regulations at 02/18/2009 10/03/2014 on 03/12/2010. Lack of access to FitzPatrick the exemption reque I prevented or significantly impaired the public' s abilitv to oooose it.

The NRC approved the exemption Response to NRC request for on 03/11/2010. The approval additional information (MLI00340670) was made public ML090960214 regarding fire protection 03/30/2009 10/03/2014 on 03/12/2010. Lack of access to regul atio n xemption reque t the exemption reque t prevented or at FitzPatrick significantly impaired the public's ability to oooose it.

Licensee event report (LER) While LERs do not constitute for deficiencies in Appendix R 051 1112009 1010312014 licensing action requests (e.g.,

ML091320440 fire response plan al Point license amendments, xemptions, 1-- - - - - + _B_e_ac_h_U_ 1_1i_t _L_ _ _ _ _ _t - - - - - - + - - - - - - - , deviations, etc.), they describe violations of r gulatory requirements, either hardware or process related. When available, L Rs could be cited by the public Licensee event report (LER) in opposing licensing requ sis for non-c mplian e manual involving hardware and proce *s MLJ 03570032 12/22/2010 10/03/2014 actions in fire response plan s changes. By withholding all fire at MonticeJlo protection L Rs, the NRC significantly hampered the I ublic's ability to evaluate fire protection program adequacy and ontest perceived shortcomings.

The NRC prepared its finding of no significant hazards for the Federal Register on 02/25/2010. The notice (ML10056039 I ) was made publi License amendment request to on 03/15/2010. The NRC issued the ML093641067 use fire-re i tive electrical 12/ 16/2009 10/03/2014 amendment on 09/30/2010. The cable at Wolf Creek amendment (MLJ 02560498) wa made public 011 10/01/2010. Lack of access to th amendment reque t prevented or significantly impaired the public's ability to oppose it.

By withholding license amendment requests, the NRC seems to have violated IO CFR 50.91 , Notice for public comment; State con ultation. Even when the agency publishes notice about the request in the Federal Register, withholding the underlying reque t rendered that opportunity for public comment meaningless. The public lacked viable means to contest "secret" requests .

December 17, 2014 Pag 3

10 CPR 50.91 also provjdes opportunities for States to review proposed licensing actions and comment on or oppose them. The NRC's information withholding policy may also have infringed on States' abilities to conduct their consultation function. We request that OIG's investigation also determine whether the NRC' s policy adversely affected the States' role in licensing actions.

The NRC's information withholding policy would also seem to violate the spirit if not the letter of the Admi nistrative Procedure Act. This federal statute requires agencies like the NRC to provide for public participation in rulemaking processes. While the fire protection and emergency planning records withheld by the NRC may not directly involve rulemaking, there most certainly is an indirect nexus. When plant owners requested exemptions from NRC's regulations promulgated via a public rulemaking process, the NRC deprived the public of its right to contest how the APA-compliant requirements were applied to the licensed nuclear facilities in their communities. And when the NRC pursued rulemaking, as it is and wil] be doing regarding emergency planning in response to both Fukushima's lessons and numerous reactor decommissionings, the NRC's withholding of the past decade' s worth of emergency planning records essentially turned the APA-compliance rulemakings into a mockery of meaningful public participation. An oft-cited adage states that "information is power." The NRC' s information withholding practice rendered the public powerless to participate in the agency's rulemaking proceed ings.

Along with several other NGO representatives, I met with the NRC staff about document classification and information redaction policies on October 7, 2014, in a public meeting attended by some members of the OTO staff. We foll owed up with a letter to Chairman Macfarlane dated November 19, 2014, requesting the Commission to reverse the policy for withholding all incoming records involving fire protection and emergency planning. We have reason to belief the information withholding policy will be changed in the near future.

While we are hopeful that the NRC staff will soon cease blanket withholding of incoming fire protection and emergency planning records, that will solve only part of the problem.

We respectfully request that OIG investigate the policy to address the remainder of the problem. Even if the information withholding policy was justifiable, policy cannot violate federal statutes and regulations. Thus, the pol icy adopted by the NRC in late 2004 should not have resulted in requests for license amendments, deviations, and exemptions of fire protection regulatory requirements being withheld from the public.

December 17, 20 14 Pagc4

The information withholding policy adopted by the NRC in late 2004 attempted to better protect the public's safety. In applying the policy, the NRC undermined the public 's rights.

Thus, the NRC's good intentions were offset by the unintended consequences. The OJG 's investigation would identify those consequences as well as factors that could have or should have enabled maximum benefits to be derived with minimal consequences. The report on the OIG 's investigation can help the NRC staff implement process fixes that better maintain the delicate balance between the legitimate need to withhold some information and the public's right to know the rest of the information.

Sincerely, David Lochbaum Director, Nuclear Safety Project Union of Concerned Scientists PO Box 15316 Chattanooga, TN 37415 423-468-9272, office dlochbaum @ucsusa.org December 17, 2014 Page 5

[ C~i!tce~ned Scientists ISSUE BRIEF No More Fukushimas; No More Fort Calhouns HIGHLIGHTS '1\vo significant nuclear power safety events occurred in the spring of 2011.

011 April 9, 2011, opt!rc1t,>rs shut On March 11, an earthquake and the tsunami it spawned caused the meltdown of down tlw rcactor at the FMt C:alfwun three reactors at the Fukushima Daiichi nuclear plant in Japan. Less than a month later, on April 9, operators shut down the reactor at the Fort Calhoun nuclear

,mc:lear plant in Nebraska for a routine plant in Nebraska for a routine refueling outage. But myriad safety problems dis-re.fur?ling outage. But myriad safety covered during the outage- man y dating back to when the plant was constructed proh!l.'111.1 diSt'Ol'l.!rcd during the outage- in the late 1960s and early 1970s-prevented the reactor from restarting for two many dating back to when the plum was and a half years.

constructed in the late 1960s and early Following the first event, the U.S. Nuclear Regulatory Commission (NRC),

1970s-prevented the reactor/7'0111 which oversees the safety of the nation's nuclear power plants, formed a task force that examined the Fukushima accident and identified more than 30 lessons that restarting for two ami a lwl.f.years. Tlw could reduce vulnerabilities in the United States. The NRC ordered plant owners U.S. N11c/l.!ar Reg11/c1tory Commission to implement specific safety upgrades and is pursuing additional measures to (Nl<C'), which 01-rrsecs the nation's midcar forther reduce vu lnerabilitics.

power plants, needs to determine how its Following the second event, the NRC made no such effort to examine the Fort inspectors and the plant owner mi.~sed-or Calhoun situation. It failed to identify lessons that would e nable it to detect safety di.~miss(!(/- numcrous longstanding safet.v violations sooner and correct them before they could accumulate to epidemic probl£'ms for _YC'ars despite thousands of proportions requiring years to fix-or worse, contribute to an American Fukushima.

Fort Calhoun received its first operating license in 1973, and the NRC reli-hours ofinspections. It should appoint a censed the plant in 2003 to continue operating for as long as 20 more years.

task force ta recommend changes to Neither of these licensing efforts, nor the tens of thousands of hours the NRC the NNC's inspc('l'ion and oversight spent inspecting Fort Calhoun, led the agency to discover any of these many

,1forts, and then imph*ment tllC'.~e safety problems.

changes as quickly as possible.

For two weeks in June 2011.Jfvod/11go11 the Missouri Ri,*er tumed N<*bmska's Fort Calhoun nuclear power p/a11t into an is/mid. T/1e plnm ha,/ alread,v /,eQ11 s/1111 do11111for* myriad .<afrcy pmblm1s- 111a11y during bark to its co11struct iOll in tlze late 1!/60.~1111d carly 1970s.

Fort Calhoun's s hutdown was not an isolated incident: The fact that there have bee n 52 year-plus outages demon-its two-and -a-half-year outage marked the fi fty-se cond time a strates that U.S. reactors ofte n operate while viol ating U. S. reactor remained hut down for longer than a year *o the numerous safety requirement . These safety violations not owner could correct accumulated safety problems (see the only make reactors more vulnerable to accidents, but also table). In ach of tho e cases, the reac tor had been operating make the m more likely to ex perience a Fukushima-scale with serious safety problems prior to the shutdown- problems disaste r in the eve nt of an accident.

that made an accident more likely. Moreover, these 52 outage By closing the gap between what its safety regulations have cost rate paye rs and shareholders billio ns of dollars. require and what .S. pl ant ow ners acn1 ally do, the NRC Th e NR 's rroal of preventing a Fukushima-scale accident would not only prevent anothe r Fort Calhoun , it would also in this country must be accompanied by the goal of preventing strengthen its post-Fukushima reforms. And because year-anoth er prolonged afe ry outage like tha t at For t Calhoun . plu outage for afety fi x are cos Ll y, preventing anoth er Y, ar-Plus Nuclear R actor Outag s Date Date Outage Date Date Outage Outage Outage Length Outage Outage Length Reactor Began Ended (years) Reactor Began Ended (years)

Fermi Unit 1 10/5/66 7/18/70 3.8 Su rry Unit 2 9/10/88 9/19/89 1.0 Palisades 8/11/73 10/1/74 1.1 Palo Verde Unit 1 3/5/89 7/5/90 1.3 Browns Ferry Unit 2 3/22/75 9/10/76 1.5 Calvert Cli ffs Unit 2 3/17/89 5/4/91 2.1 Browns Ferry Unit 1 3/22/75 9/24/76 1.5 Calvert Cliffs Unit 1 5/5/89 10/4/90 1.4 Surry Unit 2 2/4/79 8/19/80 1.5 FitzPat rick 11/27/91 1/23/93 1.2 Three Mile Island Unit 1 2/17/79 10/9/85 6.6 Brunswick unit 2 4/21/92 5/15/93 1.1 Turkey Point Unit 3 2/11/81 4/11/82 1.2 Brunswick Unit 1 4/21/92 2/11/94 1.8 San Onofre Unit 1 2/26/82 11/28/84 2.8 South Texas Proiect 2/3/93 5/22/94 1.3 Nine Mile Point Unit 1 3/20/82 7/5/83 1.3 Unit 2 Indian Point Unit 3 3/25/82 6/8/83 1.2 South Texas Project Unit I 2/4/93 2/25/94 1.1 Oyster Creek 2/12/83 11/1/84 1.7 Indian Point Unit 3 2/27/93 7/2/95 2.3 St. Lucie Unit 1 2/26/83 5/16/84 1.2 Sequoyah Un it 1 3/2/93 4/20/9 4 1.1 Browns Ferry Unit 3 9/7/83 11/28/84 1.2 Fermi Unit 2 12/25/93 1/ 18/95 1.1 Pilgrim 12/10/83 12/30/84 1.1 Maine Yankee 1/14/95 1/18/96 1.0 Peach Bottom Unit 2 4/28/84 7/13/85 1.2 Salem Unit 1 5/16/95 4/20/98 2.9 Fort St. Vrain 6/13/84 4/ 11/86 1.8 Salem Unit 2 6/7/95 8/30/97 2.2 Browns Ferry Unit 2 9/15/84 5/24/91 6.7 Mil lstone Unit 2 2/20/96 5/11/99 3.2 Browns Ferry Unit 3 3/9/85 11/19/95 10.7 Mi llstone Unit 3 3/30/96 7/1/98 2.3 Browns Ferry Unit 1 3/19/85 6/12/07 22.2 Crysta l River Unit 3 9/2/96 2/6/98 1.4 Davis-Besse 6/9/85 12/24/86 1.5 Clmton 9/5/96 5/27/99 2.7 Sequoyah Unit 2 8/22/85 5/13/88 2.7 LaSalle County Unit 2 9/20/96 4/11/99 2.6 Sequoyah Unit 1 8/22/85 11/ 10/88 3.2 LaSalle County Unit 1 9/22/96 8/13/98 1.9 Rancho Seco 12/26/85 4/11/88 2.3 D.C. Cook Unit 2 9/9/97 6/25/00 2.8 Pilgrim 4/11/86 6/ 15/89 3.2 D.C. Cook Unit 1 9/9/97 1 2/2 1/00 3.3 Peach Bottom Ullll 2 3/31/87 5/22/89 2.1 Davis-Besse 2/16/02 3/16/04 2.1 Peach Bottom Unit 3 3/31/87 12/11/89 2.7 Fort Calhoun 4/9/11 12/21/13 2.7 Nine Mile Point Unit 1 12/19/87 8/12/90 2.6 SOURCE* UPDATED FROM LOCHBAUM 2006.

2 U N I.O O F CONCE R NE D SCIENTISTS

safety problems reported by Fort Calhoun's owner during These year-plus outages

[ demonstrate that U.S.

reactors often operate the prolonged outage included:

Inadequate flood protection. NRC inspectors had already determined in 2010 that measures designed to while violating safety requirements.

] protect safety equipment in the auxiliary building and at the intake structure from external flooding had not been adequately implemented as specified by the ori!_,rinal safety studies. Workers identified additional deficiencies during the outage (Bannister 2011a). Furthermore, when the plant's owner replaced the original security system in Fort Calhoun would save ratepayers :md shareholders money.

1985, it left portions of the old system in place. Although Preventing financial meltdowns and avoiding reactor melt-the owner sealed the intake structure's walls up to the downs is a goal too good to pass up.

calculated flood ing level to protect vital cooling water Just as it did for Fukushima, the NRC must formally pumps inside, it failed to seal areas where the old security examine the Fort Calhoun case, identify the lessons that system's cables penetrated the intake structure. As a should be learned, and make appropriate changes to its over-result, the safety-related water pumps could have been sight process to reduce the likelihood that safety problems damaged by flooding (Bannister 2011b).

remain undetected- and uncorrected- for months or years.

Missing safety syst em parts. Fort Calhoun's owner in-stalled 32 seismically qualified General Electric electrical Safety Problems at Fort Calhoun relays in safety systems at the plant. Workers tested sev-en of these relays and three failed the tests. Workers then In a presentation to the NRC on March 27, 2013, Fort Calhoun's discovered the cause was a missing part. Further inquiries owner reported that 20,000 tasks had been completed between concluded that the relays were most likely missing this November 2012 and February 2013 and had approximate ly part when they were installed during the plant's original 5,000 other tasks to do before it could restart the reactor construction (Cortopassi 2013a).

(OPPD 2013). While many of these tasks involved preventive maintenance and routine inspections, some entailed Inadequate earthquake protection. Workers found correcti11g serious safety problems. that transmitters used to monitor reactor cooling water When a safety problem's severity rises above a fairly high pressure had been installed on an instrument rack that threshold, the plant owner must report it to the NRC. The was not designed to adequately protect them from

/11 March 2013, Fort Calh<>urr*., owner rcp()rted rhat it hmJ ,*ompleteJ 20.000 Cllsks req11in*d by t/1(* NRC befon* th,* ,*eaaorcould be re.,turted brit Mill had uppwximately 5.000 1110,*e to do. Som,* ofaw tasks enl<lileci correcting scrwus s11/'ety problems.

No More fukushimas; No More Fort Calhouns 3

movement during an earthquake. The owner informed this piping failed to comply with the piping code and the NRC that, "During a seismic event, the excessive therefore was not properly qualified (Cortopassi 2012).

weight of these instrument racks could cause the racks Improperly grounded reactor protection system.

to fail," resulting in a reactor cooling water leak that Workers discovered that the voltage in the reactor could not be isolated, increasing the risk of nuclear protection system- which detects unsafe conditions core damage (Bannister 2012a). and initiates automatic safety system actions-was nearly Vulnerability to high-speed debris. In the event of 10 times higher than the design allowed. As a result, the a tornado, debris propelled by high wi.nds can disable system might not initiate the automatic responses the essential safety equipment. Workers identified numerous plant's safety studies assumed would happe n. E.ven potential sources of such debris, including removable worse, this unacceptable condition had been previously hatches on the intake structure, the exhaust stack for the identified and reported multiple times since 1993 but steam-driven auxiliary feedwater pump, the vent stack ne ver corrected (Reinhart 2011).

and fill line for the emergency diesel generator's fuel oil tanks, the cable pull boxes for the raw water pumps, and

[

the exhaust stacks for the emergency diesel generators Workers discovered that (Cortopassi 2013b). some ofthe support beams Overloaded backup power source. Workers discovered that, in a situation where one of the two emergency diesel for the containment generators was unavailable, more equipment would be structure were not connected to the remaining emergency diesel generator than that generator could supply dming certain types properly designed to ]

of accidents. The system designed to disconnect non-essential equipment from the emergency diesel generator handle the weight they during an accident would not perform properly during supported.

these types of accidents, and the overloaded generator could fail to function (Bannister 2012b).

Safety pumps operated outside vendor limits. Work-Inadequately tested backup power source. ln 1990, ers determfoed that, since 1996, the motors for the com-workers revised a test procedure for the emergency diesel ponent cooling water (CCW) pumps had been operating generators and no longer checked whether the plant's under conditions beyond those recommended by the fuel oil trnnsfer pumps would automatically start and manufacturer. The CCW system supplies cooling water send fuel from the onsite storage tank to the generators. to reactor components that cou ld contain radioactive This check, required by the reactor's operating license, water (for example, reactor coolant pump lube oil and had not been performed for neady a quarter of a century seal coolers, containment air cooling units, spent fuel (Bannister 2012c). pool heat exchanger). Motors operated outside the Overloaded support beam. Workers discovered that manufacturer's limits could fail during an accident some of the support beams for the containment structure (Bannister 2012e).

were not properly designed to handle the weight they This list summarizes only a handful of the safety prob-supported (Bannister 2012d). lems that eluded detection and correction at Fort Calhoun Inadequate piping qualifications. Workers discovered for years, subjecting the surrounding population to undue that chemical and volume control system (CVCS) piping elevated risk. The plant's problems covered a range of engi-had not been properly qualified for the stresses it could neering disciplines: electrical, mechanical, civil, and instru-experience during its lifetime. Among other factors, the ment and controls. They fell into several major safety areas, qualification was required to consider fatigue cycles- including fire protection, flood protection, ru1d seismic that is, the number of times the water carried by the pip- design. In other words, the problems were programmatic ing goes from ambient temperature to reactor operating and pervasive, not isolated to a single plant department.

temperature and back again. These temperature changes The most recent of these proble ms dated to 1996, and cause the metal pipe walls to expand and shrink, which many dated back to when the plant was originally built. Thus, wears the piping out faster. Examination of two-inch- there were dozens, and sometimes hundreds, of opportunities diameter socket-welded fittings in the CVCS found that for workers and NRC inspectors to detect them before 2010.

4 UNION OF CONCERN.ED SCIENTISTS

Senior executives from the Fort Calho1111 plant briefed NRC swffand commissioners several times (including here in J111w 2013) before they were allowed to restar*t rhe reactor.

The NRC's Reactor Oversight Process inspectors' findings, then places the reactor into one of five Action Matrix columns. When the safety performance of a In May 1997 the Government Accountability Office (GAO, reactor falls within the expected regime, the reactor is placed then called the General Accounting Office) issued n report in Column 1 and the NRC conducts only a baseline number titled Nuclear Regulation: Preventing Problem Plants Requires of inspections. As safety performance declines, the ROP man-More .Effective NRC Action (GAO 1997) . At the time, both dates supplemental NRC inspections. lf safety performance reactors at New J ersey's Sale m nuclear plant were mired in declines too much and a reactor falls into Column 5, the ROP year-plus outages and the NRC had identified 43 problems will trigger n shutdown until the owner fixes the problems.

the own er had to correct before it could safely restart either The ROP Action Matrix for Fort Calhoun from the fourth unit. The GAO report stated that the NRC knew about 38 of quarter of 2000 (whe n the ROP program began) to the third the 43 problems before the Salem reactors were shut down, quar ter of 2014 is shown in the figure on p. 6. The NRC moved and it knew about one of these problems for more than six years Fort Calhoun from Column 1 into Column 2 in the third prior to the shutdown. The GAO also documented that the NRC quarter of 2002, but later concluded that safety performance was aware of unresolved safety problems at the Millstone plant in Connecticut and the Cooper plant in Nebraska.

These find ings prompted the GAO to conclude:

"NRC has not taken aggressive enforcement action to force the licensees to fix their long-standing safety problems on a timely basis."

"NRC allowed safety problems to persist because it was

[ There were dozens, and sometimes hundreds, of opportunities for workers and NRC inspectors to confident that redundant design features kept plants inherently safe."

detect safety problems In response to criticism from the GAO and others, the at Fort Calhoun-NRC replaced its safety monitoring programs in April 2000 with its Reactor Oversight Process (ROP). The ROP evaluates a reactor's safety performance by combining 17 performance indicators (submitted quarterly by plant owners) with NRC opportunities that were missed. ]

No More fukushimas; No More Fort Calhouns 5

The NRC's ROP Action Matrix for Fort Calhoun, 2000- 2014 2000 04 2001 01 2001 02 2001 03 ~

2001 04 2002 01 2002 02 II 2002 03 2002 04 2003 01 2003 Q2 2003 03 2003 04 2004 01 2004 02 2004 Q3 ~

2004 04 2005 01 2005 02 2005 Q3 2005 04 2006 Ql 2006 02 2006 03 2006 04 1, 2007 01 2007 02 2007 03 2007 Q4 ~

2008 01 2008 Q2 2008 03 2008 04 ~

2009 01 ,,

2009 Q2 2009 03 2009 04 ~

2010 01 2010 Q2 2010 03 2010 04 ~

2011 01 2011 2011 02 Q3 2011 04 ~

2012 01 ~

2012 02 2012 Q3 2012 04 2013 01 2013 02 2013 03 2013 04 2014 01 2014 02 2014 03 0 2 3 4 5 ROP Column As a nuclear power plant's safety performance declines, the NRC moves it from Column 1 to Column 5 in the Reactor Oversight Process Action Matrix. The NRC repeatedly moved Fort Calhoun back and forth in the matrix for over a decade until the agency decided the plant's problems were serious enough (Co/u11111 S) to warrant a shutdown.

SOURCE NRC N.D 6 UNIO OF CO CERNED SCIENTISTS

-~i..

NRC Commissimwr William C. Ostendorjf(le[t) speak.~ with NIIC Senior Resident Tnspemir .T0hn Kirkland about repail's needed at Fort Calhoun while touring the plant d111*in,<.r its ,W -month outa$fe.

had improved and returned the reactor to Column 1. This or radiation release. At Fukushima, multiple problems caused happened again in the fourth quarter of 2003 and the third three reactors to melt down: the reactors lost o ff-site power, quarter of 2004. the !backup generators located in the basements were damaged The NRC moved Fort Calhoun into Column 3 in the when the basements flooded, floodwater disabled banks of

~econd quarter of 2007 and the fourth quar ter of 2007, but batteries that backed up the backup generators, and workers each time returned the plant to Column 2. Wben the NRC could not deploy portable pumps and generators in time.

ngain moved Fort Calhoun into Column 3 in the second The 1986 Chernobyl and 1979 Three Mile Island accidents quarter of 2010, however, the plant subsequently slipped also occurred when numerous things went wrong.

into Column 4 and then into Column 5.

[

Thus, the ROP utterly failed to recognize the depth and breadth of the safety problems at Fort Calhoun until the third Quite simply, the people quarter of 2011. As noted above, all the safety problems sum- ofNebraska faced unduly marized here existed at Fort Calhoun since at least 1996. They existed when the NRC returned Fort Calhoun from Column 2 high risk for over a decade

]

to Column 1 on four occasions and when it returned Fort because the NRC did not Calhoun from Column 3 to Column 2 on two occasions.

These problems were so serious that Fort Calhoun could accurately evaluate safety not safely resume operation under NRC rules until each one was corrected, yet it had operated for over a decade with all levels at Fort Calhoun.

of them. Quite simply, the people of Nebraska faced unduly high risk for over a decade because the NRC did not accu- Conversely, there have been cases where many things rately evaluare safe ty levels at Fort Calhoun. The ROP has went wrong and disaster was averted. For example, in 2002, clearly n ot fixed the problems identified by the GAO in 1997. workers at the Davis-Besse reactor in Ohio discovered that corrosion had caused a pineapple-sized hole in the reactor head, leaving only a thin steel claddi ng to contain the high-Preventing Another Fort Calhoun- pressure coolant. Once the reactor was shut down, workers and an American Fukushima discovered additional serious safety problems. Despite oper-ating with numerous safety problems, Davis-Besse avoided A key nuclear safety principle is "defense in depth." Reactors disaster beca use not all of its defense-in-depth barriers are designed so that no single problem will lead to a meltdown were compromised.

No More fukushimas; No More Fort Calhouns 7

Nevertheless, a reactor operating with pre-existing safety Bannister, D.J. 2012e. Licensee event report 2012-006, revision O,for problems is more vulnerable to disaster when another safety the Fort Calhoun Station. Omaha, NE: Omaha Public Pnwer District.

June 25. Online at http://pbadupws.nrc.gov/ docs/ ML12l7/

problem arise*. Fort Cal houn before its reactor was shu t down, ML12178A293.pdf was more likely to experience a Fukushima-scale acciden t Bannister, D.J. 2011::t. Licensee event report 2011-003, revision 2,for because it was already operating with mu ltiple pre-existing the Fort Calhoun Station. Omaha, NE: Omaha Public I owcr District.

safety problems. Pre-existing problems underm ine defense in March I. On line at http://pbadupws.nrc.gov/ docs/ MLJ206/

depth by reducing the number of th ing that must go wrong ML12061A224 .pdf Bannist r, D.J. 201 lb. Licensee event report 2011-003. revision 3 for to transform a near-mi into a nightmare.

the Fort Calhoun Station. Omaha, NE: Omaha Public Power District.

Tfthe NR ' effort to prevent an American Fukushima is Dec mbcr 17. Onlin at http://pbadupws.nrc.gov/ docs/ J\l1LI 135/

to be successful, it must augment that with an effort to prevent ML1135305SS.pdf another Fort al houn. The NRC r ponded to Ji'uku hi nrn by Cortopassi, L.P. 2013a. Licensee evelll report 2013-008, revision O,for form ing* a ta k force that e amined th e acc id ent and made more the Fort Calhoun Station. Omaha NE: Omaha Public Power District.

June 7. 011 \in c at http://pbadupws.nrc.gov/ docs/ ML1315/

than 30 recommendations to better 111ru1age nuclear power ML13JSBA138.pdf plant risks. It is now in the process of implementing those Cortopass i, L.P. 2013b. Licensee event report 2013-009, revision O,for recommend ati ons. the Fort Calhoun Station. Omaha. NE: Omah3 Public Power Distr ict.

The NRC simil arl y needs to respond to Fort Calhoun by June 14. On li ne at www.nrc.gov/ site-help/search.cfm?q=MLJ3168A376.

forming a task fore to det rmine how the agency and th plant Cortopa s i, L.P. 2012. Licensee event report 2012-016, rel'isio11 O,for owner missed - or dismissed- numerous longstanding sa fety the Fort Calhoun Station. Omaha, NE: Oma ha Public Power Distr ict.

September 17. Online at http://pbadupws.nrc.gov/ docs/ ML1226/

problems for years despite thousands of hours of inspections. ML12262A317.pdf The task force . hou ld reco mmend change. that wi ll improve Gove rnm ent Accounting Office (GAO). 1997. Nuclear regulation:

th e effectiveness and reliability of the NRC's inspection and Preventing problem plants require* more effective NRC action.

ove rsight efforts. The RC then needs to implement these Washington , DC. May. Online at www.gao.gov/ products/

RCED-97-145.

chang .i quickly as po sible.

Lochbaum , D. 2006. Walking a nuclear tightrope: Unlearned lessons of year-plus reactor outage . Cambr idge, MA: Union of Concerned REFERE INCES Sc ientists. September. Online at www.ucsusa.org/nuc/ear_power/

Ba nnis ter, D.J. 2012a. Licensee event report 2012- 010, revision O,for 111aking-n11c/ear-power-safe1/ who-is-r sponsi/,J,j walki11g- a-nuclear-the Fort Calhoun Sta tion Omaha, NE: Oma ha Public Power District. tightrope./1tml#.VOYnSc80670.

Augu st 3. Online at http://pbadupws.nrc.gov/docs/ ML1221/

uclear Regulatory Commission (N RC) . o date. ROP historical perfor-ML12219A010.pdf mance from previous quarters. Rnckvi ll e, l\llD, On line at www.nrc.

Bannister, D.J. 2012b. Licensee event report 2012 -011, revision O,for gov/ NRR/OVERSIGHT/ ASSESS/ prevqtr.litml.

the Fort Calhoun Station. Omaha, NE: Oma ha Public Power Distr ict. Om:l ha P ublic Power Di trict (OPPD). 20!3. Fort Calhoun Station driving August 6. Online at htip://pbadupws.nrc.gov/ docs/ ML1222/

through restart. Omalia, E: Omaha Public Power District. March 27.

ML12220A167.pdf. Online at http ://adamsweb ea rch2.nrc.gov/ w bSearch2/ main.j *p?

Bannister, D.J. 2012c. Licensee event report 2012-005, revision 0, for AccessionNumber=ML13093A473.

the Port alhoun tation. Omaha, NE: Omaha Public Power Di trict. Reinhart, J.A. 20 1I. Licensee event repor*t 2011-002, revision 1,for the Apri l 23. Online at http://pbadupws.nrc.gov/ doc.,/ ML1225/

Fort Calhoun Station. Omaha, NE: Omaha Pub lic Power District.

MLl2250A189.pdf July 27. Online at http://pbadupws.nrc.gov/ docs/ ML1120/

Bannister, D.J. 2012d. Ucen.,ee event report 2012-014, revision O,for MLJ 12081990.pdf the Fort Calho1111Station. Omaha, NE: Omaha Public Power Distr ict.

September 10. Online at http://pbadupws.nrc.gov/ docs/ M L1225/

ML12255A038.pdf Uniomof d * *

[ Concerne Scientists 1'1Nl1 THIS DOCUMENT O LINE: www.ucsusa.org/NoMoreFtCalhouns The Union ofConcerned Scientists puts rigorous, indep,mdent science to work to solve our planet' most pressing problems. Joining with citizens across t/ie country, w11 combine technical analysis and effective advocacy to create innovative, practical solutions for a healthy, safe, and sustainable future, NATIONAL HEADQUARTERS WASHINGTON, DC, OFFICE WEST COAST OFFICE MIDWEST OFFICE

'l'wo Rl':lltic .'iquur~ 182~ K St. NW, Suitt! 800 500 121h St., Suit~ 340 ()11~ N. LuSnllc SL .. Su il ~ 11104 Cambridge, l\*fA 02138-3780 Washington, DC 20006-1232 Oakln,nd, CA 94607-4087 Chicago, IL 60602-4064 Phone: (617) 547-5552 l'hon~: (202) 223-6133 Phune: (510) 84.l 1872 Phone: (312) 578-17S0 Fax: (617) 864-9405 Fnx: (202) 223-6162 Fax: (510) 843-.3785 Fax: (.312) 578-1751 WEit www.ucsusa.org ~* FEBRUARY 2015 UNIUN OF COl<Ct!INBU sut. I ISTS

[

Unionof Conceme d Scientists EXECUTIVE

SUMMARY

The NRC and Nuclear Power Plant Safety in2014 Tarnished Gold Standard OUR FIFTH ANNUAL REPORT CARD The Nuclear Regulatory Commission (NRC) often claims to represent the gold Tile NRC' ojii*n dai111, to b1* the go/ti standard for nuclear power plant safety regulation and oversight (Macfarlane

.~tandardfor nuch*ar power plant safety 2013; Magwood 2013). Ample evidence, including the summaries of positive outcomes achieved by the NRC in this series of annual reports, suggests much regulation and 01>crsiglit. Ample evidence validity to these claims. One cannot count the number of nuc lear disasters averted suggests much 1*alidity lO these claims.

by the NRC's effective regulatory performance, but one can generally count on o,w rnmwt count tlw numbl'r ofnuch-ar the NRC to be an effective regulator. The NRC has done much to earn the gold disastt*rs O\'l'l"ted /,y the NI/C's <'ff,xtil'(' standard label.

regulatory Pl'lformancc, b11t one Chapter 4 of th is report describes how the NRC conducted two extensive c,mg,m1:rally count on tile NRC reassessments of its reactor oversight process- not in response to an accident lO be tm e}fet'I ive regulator. demonstrating its inadequacy or to criticism suggesting an inadequacy, but as a proactive measure aimed at enhancing the effectiveness and efficiency of the existing process. Chapter 4 also describes how a decade ago the NRC recognized Hur the /\i'HC's gold standard is it had an aging wo rk force and developed formal programs to retain as much larnis/1ed. For rhe past decade, they have tribal knowledge as possible before its retirees hit the golf courses and beaches been improperly withlwlding docwmmts in their golden years. Such proactive actions enable the NRC to retain the gold r1/,()11t safi't.Y pr,,blem,\, hirv,* .rnlyt*ctt'd standard label.

e11gine<'l's who 1*oiccd safety concerns to Chapters 2 and 3 of this report describe how the number and severity of near misses at nuclear power plants have been steadily declining since 2010 repeated investigations ofalleged (Table 1, p. 2), again consistent with the NRC being an effective regulator.

but w1.mlwa11tiated wrung,ioing. am/

how ll<'cn using 110m111ifonn ,mswer k,,ys ro gradl' st,rnd,miized 1,*sts admi11isten*d via its reactor oversight process.

Iftlw NRC rruly is tli~ gold st,mdard, it must rc.,torl' tlw lu,kr and [lf'C!Vl.'11 I the tarnish .from recurring.

T/Je Millstone Pow,, r Station in Waterfi,,*d, CT, which experirnced cwo .selfinflicced near mi.<sc*s in 20/.1 wllen recent mai11te11ance and modifications introduced probl~ms tlw1 reduced safety margi11s,

TAB LE 1. Near M isses 2010 to 2014 Total Number Near Near Near Near Near of Near Misses in Misses in Misses in Misses in Misses in Reactor Misses 2010 2011 2012 2013 2014 1 Arkansas Nuclear One Unit l 2 l l 2 Arkansas Nuclear One Unit 2 2 l l 3 Braidwood Unit 1 2 l l t-Braidwood Unit 2

- - l 4 2 1 5 Browns Ferry Unit 1 1 l 6 Browns Ferry Unit 2 1 l 7 Browns Ferry Unit 3

- 1 l

8 Brunswick Unit 1 1 l 9 Brunswick Unit 2 2 l l 10 Byron Unit 1 1 1 11 Byron Unit 2 2 I 1 12 Callaway 1 1 13 Calvert Cliffs Unit 1 2 l 1 14 Calvert Cliffs Unit 2 2 I 1 15 Catawba Unit 1 3 l 1 1 16 Catawba Unit 2 1 1 17 Clinton l 1 18 Columbia 3 3 19 Cooper 1 1 20 Crystal River Unit 3 1 l 21 Davis-Besse 1 1 22 Diablo Canyon Unit 2 1 1 23 Farley Unit 1 1 l 24 Farley Unit 2 2 1 1 25 Fermi Unit 2 l 1 26 Fort Calhoun 4 1 2 1 27 Grand Gulf 1 1 28 H.B. Robinson 2 2 29 Joseph M. Farley Unit 2

- - l 1

.30 LaSalle Unit 1 1 l

,~

31 LaSalle Unit 2 1 l 32 Millstone Unit 2 2 l 1 33 Millstone Unit 3 2 2 2 UN IO OF CO CERNED SCIENTISTS

TABLE 1. Near Misses 2010 to 2014 (continued)

Total Number Near Near Near Near Near of Near Misses in Misses in Misses in Misses in Misses in Reactor Misses 2010 2011 2012 2013 2014 34 North Anna Unit l l 1 35 North Anna Unit 2 1 l 36 Oconee Unit l l 1 37 Oconee Unit 2 1 1 38 Oconee Unit 3 l 1 39 Oyster Creek 1 I 40 Palisades 3 2 l 41 Palo Verde Unit 1 l 1 42 Palo Verde Unit 2 l 1 43 Palo Verde Unit 3 1 1 44 Perry 2 1 1 45 Pilgrim 2 2 46 River Bend 2 l l 47 San Onofre Unit 2 l l 48 San Onofre Unit 3 1 1 49 Shearon Harris 2 1 I

- 50 Surry Unit 1 1 1 51 Susquehanna Unit 2 1 1 52 Turkey Point Unit 3 1 1 53 Wolf Creek 4 1 l 2 The overall number of near misses continues to decline each yea,; as does the number of affected sites and the severity of events.

SOURCE: UCS.

But Chapter 5 reveal

• the gold tandard to be tarni hed. how th NR has been u ing nonuniform an wer key to For the past decade, the NRC has been improperly withholding grade standard ized tests administered via its reactor over-documents, including many about safety problems. By doing sight process (Table 2, p. 4), yielding numerical outcome less so, th e NRC dep ri ved the public ofl egal rig hts for rei,rulatory predi ctable thm, fluctuating gold prices. By improperly with-decision-making and painted a misleading picture of nuclear holding man y safety problem reports and jiggling the grading safety. hapte r 5 also describe how two NRC engineers who of other safety problems, the improving trends may be more did their duties an d voiced safety concern we re ubj ected fabrication than fact. Ifthc RC truly is th e go ld standard to repeated investigations of alleged hut unsubstantiated of nuclear regulator , it must restore the luster by removing wrongdoing, sendiJ1g a ve ry clear message throughout the thi tarnish and pr venting it from recurring.

ag ncy that " ilence is gold n." Finally, chapter 5 xplains The NRC and Nucle ar Power Plant Safety in 2014 3

TABLE 2. 'even Cornerstones of the Reactor Over ight Proce s Initiating Conditions that. if not properly con rolled. require the plant's emergency equipment to maintain safety.

Events Problems in this cornerstone Inc lude Improper control over co mbustib le materials or welding activities, causing an elevated risk of fi re: degradation of pipmg, rais ing the risk that 1 wil l rupture: and improper sizmg of fuses, raising the risk t hat the plant will lose electrical power.

Mitigating Emergency equipment designed to limit the impact of initiating events. Problems in this cornerstone include Systems ineffective maintenance of an emergency diesel generator. degrading the abil ity to provide emergency power to respond to a loss of offsite power: inadequate repa ir of a problem with a pump in t he emergency reactor-core cooling system, reducing he reliability of cooling during an accident: and non-conservative ca libration of an automatic temperature set point fo r an emergency ventilation system, delay ing its startup longer than safety studies assume.

f-Barrier Integrity Multiple fo rms of containment preventing the release of radioact ive material into the env ironment. Problems in this cornerstone include foreign materia l in the reactor vessel, which can damage fuel assemblies: corrosion of t he reactor vessel head: and malfunction of valves in piping that passes through containment walls.

Emergency Measu res intended to protect the public 1f a reac tor releases significant amounts of radioactive material.

Preparedness Problems in this cornerstone inc lude emergency sirens w ith in 10 miles of the plant that fail to work:

and underestimation of the severity of plan t conditions during a simulated or actual acc ident, delaying protective measures, Public Radiation Design features nd administrative controls that lim it public exposure to radiation. Problems m this Safety cornerstone include improper calibrat ion of a radiation detector that monitors a pathway for the release of potentia lly contaminated air or water to the environment.

Occupational Design features nd adm1n1strat1ve controls that limit the exposure of plant workers to radiat ion Problems Radiation Safety in this cornerstone include failure to survey an area p roperly for sources of rad iation. causing workers to receive unplanned exposures: and Incomplete accounling of 1nd1viduals' radiation exposure.

Security Protection against sabotage that aims to release radioactive material into the environment. which can include gates. guards, and guns. After 9/11. the NRC reduced the discussion of this cornerstone 1n the public arena Th e NRC's Reaction Oversight Process features seven cornerstones of reactor safety to help inspectors detect problems before they become more serious.

SOURCE WWW.NRC.GOV/RcACTORS/OPERATING/OVERSIGHT/ROP*DESCRIPTION.HTML

[ Unionof Coneeme Scientists d *

• FIND TH[S [)UCUME:NT ONl,INE: www.u cs usa .org / NR C2 014 The Union ofConcerned Scientists puts rigorous, indep,mdent science to work to solve our planet' most pressing problems. Joining with citizens across the country, w11 combine technical analysis and effective advocacy to create innovative, practical solutions for a healthy, safe, and sustainable future, NATIONAL HEADQUART ERS WASHI NGTON, DC , OFF ICE WEST COAST OF FICE MIDWEST OFFICE

'l'wo Ri':lltlc .'i4uur~ 182~ K St. NW, Suitt! 800 500 121h St., Suit~ 340 On~ N. LuSnllc SL .. SuI1~ 11104 Cambridge, l\*fA 02138-3780 Washington, DC 20006-1232 Oakln,nd, CA 94607-4087 Ch icago, IL 60602-4064 Phone: (617) 547-5552 l'hon~: (202) 223-6133 Phune: (510) 84.l 1872 Phone: (312) 578-17S0 Fax: (617) 864-9405 f'nx: (202) 223-6162 Fa x: (510) 843-3785 Fax: (312) 578-1751 WEit www.ucsusa.org " MARCH 2015 UNIUN OF COl<CtllNBU sut. I ISTS