ML20293A222

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NRC-2016-000665 - Resp 2 - Interim, Agency Records Subject to the Request Are Enclosed
ML20293A222
Person / Time
Issue date: 04/27/2017
From: Stephanie Blaney
Information Services Branch
To: Vader D
- No Known Affiliation
Shared Package
ML20293A219 List:
References
FOIA, NRC-2016-000665
Download: ML20293A222 (22)
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Text

NRC FORM 464 Part I U.S. NUCLEAR REGULA TORY COMMISSION FOIA RESPONSE NUMBER I

(03-2017)

RESPONSE TO FREEDOM OF 2016-0665 11 2

I

..... INFORMATION ACT (FOIA} REQUEST RESPONSE TYPE FINAL REQUESTER: DATE:

!Darth Vader DESCRIPTION OF REQUESTED RECORDS:

11 04/27/2017 l

Request for 22 documents by ADAMS Accession Number.

PART I. - INFORMATION RELEASED You have the right to seek assistance from the NRC's FOIA Public Liaison. Contact information for the NRC's FOIA Public Liaison is available at https://www.nrc.gov/reading-rm/fQia/cont!;lct-foia.htl1Jl D Agency records subject to the request are already available on the Public NRC Website, in Public ADAMS or on microfiche in the NRC Public Document Room.

[Z] 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.

[Z] We are continuing to process your request.

[Z] See Comments.

PART I.A - FEES NO FEES AMOUNT*

You will be billed by NRC for the amount listed.

Minimum fee threshold not met.

11 i You will receive a refund for the amount listed. Due to our delayed response, you will

  • see Comments for details [Z] Fees waived. not be charged fees.

PART I.B -- INFORMATION NOT LOCATED OR WITHHELD FROM DISCLOSURE D 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

[Z] 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 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 90 calendar days of the date of this response by sending a letter or e-mail to the FOIA Officer, at U.S. Nuclear Regulatory Commission, Washington, D.C. 20555-0001, or FOIA.Resource@nrc.gov. Please be D sure to include on your letter or email that it is a "FOIA Appeal." You have the right to seek dispute resolution services from the NRC's Public Liaison, or the Office of Government Information Services (OGIS). Contact information for OGIS is available at https://ogis.arcl:!ives.gov/about-ogis/contact-information.htm PART I.C COMMENTS ( Use attached Comments continuation page if required)

This interim response addresses two more of the records enumerated in your request: ML16216A707 and ML16216A712.

Please note that, since the date of your request, these records have been removed from ADAMS. However, because the NRC was able to locate the records by their accession numbers when your request was received, we have processed the records.

[continued on next page]

Signature - Freedom of Information Act Officer or Deslgnee Stephanie A. Blaney ':~1-=,<

Dlffl!.2011.04.2111:3!J)l,l,{.!4'otr t<<Jdear fw11u!att;>ry CoMfflis-,.ion ou=NRC-PIV, en,,St.phanKIA Slaney O !I 234219200300.100 1 1=200C01991 NRG Form 464 Part I (03-2017) IAdd Continuation Page I Page 2 of 3

NRC FORM 464 Part I U.S. NUCLEAR REGULA TORY COMMISSION FOIA RESPONSE NUMBER (03-2017)

RESPONSE TO FREEDOM OF INFORMATION 1 2016-0665 II 2 ACT (FOIA) REQUEST Continued RESPONSE INTERIM FINAL TYPE REQUESTER: DATE:

joarth Vader 11 0412112011 PART I.C COMMENTS (Continued)

The record you identified as ML16216A707 consists of a June 10, 2013 email from an NRC staff member (who has furnished a privacy waiver) to various NRC staff and NTEU Chapter 208, which the staff member then forwarded to Chairman Macfarlane and her Legal Assistant on June 13, 2013. We have enclosed a redacted version of this record.

Certain portions of the email have been redacted, and the attachment withheld in its entirety, on the basis of exemption 5, as it incorporates the deliberative process privilege. The portions of the email have been redacted to be consistent with the manner in which records responsive to FOIA-2015-00l8/FOIA-2015-0019 were redacted; the attachment was previously denied in response to FOIA-2015-0020, Please note that since this content was previously withheld on the basis of exemption 5 and the deliberative process privilege, the NRC revisited the content that had been withheld before determining to continue asserting exemption 5.

The record you identified as MLI6216A712 consists ofan email, dated March 29, 2013, transmitting to the Chairman and various NRC staff, including in the FOIA Office, a letter in which this same NRC staff member (who has provided a privacy waiver) seeks to appeal the failure to respond timely to three FOIA requests (FOIA-2013-0126, 2013-0127, and 2013-0128) that he and other third party individuals, had filed. This appeal letter included 16 enclosures, many of which are already available to the public as noted below, or are enclosed herein:

Enclosure I: Incoming request, FOIA-2013-0126 (ML13044A48 I) : Acknowledgment letter for FOIA-2013-0126 (enclosed)

Enclosure 3: Incoming request, FOIA-2012-0128 (MLI2030Al05)

Enclosure 4: Acknowledgment letter for FOIA-2012-0128 (ML I 2363A094)

Enclosure 5: Form 464 response to FOIA-2012-0128# I (ML16216A712)

Enclosure 6: Incoming request, FOIA-2012-0325 (ML12263A087)

Enclosure 7: President Obama's Memorandum on the FOIA (https://www.dol.gov/dol/foia/2009 FOIA_memo.pdf)

Enclosure 8: Attorney General Holder's Memorandum on the FOIA (https://www.justice.gov/sites/default/files/ag/

legacy/2009/06/24/foia-memo-march2009.pdf)

Enclosure 9: List of NRC Correspondence, Memos and Studies Regarding Failure of Jocassee Dam (this list has been attached to multiple documents that are publicly available, such as ML15128A609, which was responsive to a prior request, FOIA-2014-0348)

Enclosure 10: Incoming request, FOIA-2013-0127 (ML I 3044A486)

Enclosure 11: Acknowledgment letter for FOIA-2013-0127 (enclosed)

Enclosure 12: Acknowledgment letter for FOIA-2013-0034 (enclosed)

Enclosure 13: Incoming request, FOIA-2013-0008 (ML12283A329)

Enclosure 14: Incoming request, FOIA-2013-0013 (ML12290A070)

Enclosure 15: Incoming request, FOIA-2013-0128 (ML091170104)

Enclosure 16: Acknowledgment letter for FOIA-2013-0128 (enclosed)

NRC Form 464 Part I (03-2017) Page 3 of 3

NRC FORM 464 Part II U.S. NUCLEAR REGULATORY COMMISSION FOIA (03-2017)

RESPONSE TO FREEDOM OF 1 2016-0665#2 INFORMATION ACT (FOIA) REQUEST DATE:

1 0412112017 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 NRC.

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).

D 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.

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.

Other I'------------------------------------------------'I PART 11.B - 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 APPELLATE OFFICIAL DENYING OFFICIAL TITLE/OFFICE RECORDS DENIED EDO SECY I Bernice C Ammon II Assistant General Counsel (LC, L & SP) 11 predecisional deliberations I 0 II I 11 I Appeals must be made in writing within 90 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 If (03-2017) Page 1 of 1

Criscione, Lawrence From: Criscione, Lawrence Sent: Thursday, June 13. 2013 10:30 AM To: Macfarlane, Allison Cc: Vrahoretis. Susan

Subject:

Your Reputation Attachments: POP for Dam Related FOIA Releases.doc Chairman Macfarlane, (b)(5) \

L----------------------------------- / As far as the public i s concerned, these individuals are nameless bureaucrats. Yours is the name on the letter. Any redactions applied to it will be assumed to have been made with your blessing. Any delay in the release of that letter !which is already 7 months overdue) will be assumed to have come from your indecision. These things might not be fair, but they are some of the costs which come with the burdens and privileges of leadership.

You have a duty to keep the American public openly informed about potential liabilities to their health and safety from commercial nuclear reactor plants. You also have a duty to safeguard sensitive information that might be damaging to the security of our nation's reactor plants. Sometimes these duties might conflict .

(b/l:J/

Hopefully you recognize that the above information is vitally important for the American public to make an informed decision as to whether or not the risks posed to nuclear reactor plants by upstream dam failures is being adequately evaluated and addressed. And hopefully you recognize that th is information should be shared with the American public.

There are some within NRR and RES who agree with me that the above information should be shared with the public. However, there are some w ho disagree. These people claim that the above three items could be helpful to terrorists.

If we must withhold any and aU information t hat might be helpful to a t errorist, then we w ill fatally impact our ability to be an open and transparent regulator. A terrorist wishing to fly a plane into the Empire State Building would find t he flight schedules posted on Southwest Airline's websit e t o be beneficial in determ ining the optimum plane to hi-jack for their mission, but hopefully you recognize it as ludicrous for the FAA to demand that Southwest Airlines pull down their flight schedules. A line must be drawn somewhere.

With regard to nuclear reactor plants, a line has been drawn. It was dr awn with Sections 141-145 of the Atomic Energy Act, which prohibits the disclosure of Restricted Data or Formerly Restricted Data 142 U.S.C. 2161-2165). And it was drawn with Section 147 of t he Atomic Energy Act, w hich prohibits the disclosure of Unclassified Safeguards Information (42 U.S.C. 2167) . The above three items (i.e. dam failure probabilities, specifics of nuclear power events caused by dam fa!lure, and flood elevations resulting from dam failure) fall outside of t hat line. That is, there is no legal requirement for withholding the above three items from the American public.

It is my position that some personnel in NRR, RES and NSIR are caving in to what President Obama termed "speculative or abstract fears" in his January 21, 2009 memo on the freedom of Information Act. That is, they are allowing speculative or abstract fears regarding terrorist targeting concerns of dams to prevent the NRC from openly sharing with the American public grave safety concerns regarding the vulnerability of NRC regulated nuclear reactor plants to dam failures from natural disasters.

It is your decision as to how my 2012-09-18 letter to you Is redacted. I believe you have no legal requirement to redact anything from it and, under the Freedom of Information Act and under President Obama's inauguration day memo on the FOIA, you have an ob!lgation to release the letter unredacted. Whatever dec ision you make will reflect on your personal reputation and will have no bearing on the reputations of the nameless (i.e. nameless to the public) bureaucrats in NRR, RES, NSIR and OGC who advised you.

If you would like to meet with me to discuss these matters, I am open to meet with you any time this week or next.

Very respectfully, Larry Criscione Reliability & Risk Engineer RES/ORA/OEGIB From: Criscione, Lawrence Sent: Monday, June 10, 2013 9:35 AM To: Monninger, John; Correia, Richard; Beasley, Benjamin Cc: Kim, Grace; Pearson, Laura; Rothschild, Trip; Donnell, Tremaine; Albert, Michelle; Hirsch, Pat; Wilson, George; Boska, John; Ammon, Bernice; Kilgore, Linda; Cook, Christopher; Coe, Doug; Kauffman, John; NTEU, Chapter 208; Sullivan, Randy; Ferrante, Fernando; Mitman, Jeffrey; O0onnell, Edward; Perkins, Richard

Subject:

l(b)(S)  !

Rich/John, (b)(5) J do not expect my input to have much weight on your decisions. But for what it 's worth, my opinion on how to address my outstanding appeals is to follow the President's (i.e. January 21, 2009) and Attorney General's (i.e. March 19, 2009) guidance that "The Freedom of Information Act should be administered with o clear presumption: In the face of doubt, openness prevails" and, recognizing the doubt inherent by the necessity of requiring!(b)(S) l let openness prevail and release the documents J seek without redaction.

The purpose of this email, however, is not to suggest to ou how to handle current! (b)(S)

~

  • but rather to provide you my input regarding ...(b_l<_si_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___.

In its wisdom, Congress provided within the freedom of Information Act a solution tor the withholdlng of information which the NRC believes to be useful to enemies of the United States. That solution is Exemption 3:

(3) specifically exempted from disclosure by statute (other than section 552b of this title), if that stotute -

(A) (i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (BJ if enacted after the date of enactment of the OPEN FOIA Act of 2009, specificolly cites to this paragraph.

2

What Congress intended for the NRC to do with regard to udam failure probabilities, specifics of nuclear power events caused by dam failure, and flood elevations resulting from dam failure" was NOT for mid level public servants (e.g. Boska and Wilson) to subjectively decide that this important information (i.e. important for the public to assess the risks associated with their local nuclear power plant) cannot be released to the public, but rather for the NRC to come to the Congress with the request for a specific statute authorizing the withholding of the supposed security sensitive information . Then, through open legislative processes, for the Congress to decide the merits of withholding the security sensitive information against the benefits from having open access to this important SAFElY related information. Congress would undoubtedly put some restriction on the withholding of the information (e.g. very specifically defining what falls under the statute, clear criminal penalties for the unauthorized release of the information) which would ensure that it is well understood as to precisely what must be withheld under the statute and by whose authority.

My suggesting for going forward is for the NRC to petition Congress to provide an "Exemption 3 statute" regarding (1)

Dam failure probabilities, (2) Specifics of nuclear power events caused by dam failure, and (3) Flood elevations resulting from dam failure. If the NRC is unwilling to do t his, then I believe we must ask ourselves "why?". If this information truly affects public safety and security, then it deserves a specific statute. If we are unwilling to request a statute, it might be because the real reason we are withholding this information is "because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears" .

My other suggestion going forward is to require portion marking on all documents designated "Official Use Only" or some other designation limiting public disclosure. It is unfair to the NRC staff to have to sort through OUO documents and, individually with fractured guidance (see ML12313A0S9 for examples) decide what is and what is not DUO. Rather what should be occurring is the person designating the document DUO should portion mark each paragraph which contains OUO and each paragraph which does not contain any OUO. Documents should be designated so that it is precisely clear to the reader what paragraphs cannot be released and what paragraphs are fuUy releasable.

I am available to.. 5 I

_ _) _ _ _ _ _ _ _ _ _ if you believe my input would be beneficial.

l<b_l <

V/r, Larry Lawrence S Cnsc1one RcllDb1lity & Ris~ Lnginccr RES/ORAIOEGIB Cnur.:h Street Bu,ldmg Mail Stop :?A07

<JO I) 2, 1-7<,0) 3

(b)(5)

March 29, 2013 1412 Dia! Court Springfield, ll 62704 Allison Macfarlane, Chairman Annette Vietti-Cook, Secretary of the Commission BiU Borchardt, Executive Director for Operations (EDO)

Darren Ash, Chief Freedom of Information Act Officer United States Nuclear Regulatory Commission Washington, DC 20555*0001

SUBJECT:

Appeal for refusal to release documents requested under FOIA/PA Requests 2013-0126, 2013-0127, and 2013-0128

Dear Dr. Macfarlane,

Ms. Vietti-Cook, Mr. Borchardt and Mr. Ash:

This letter is an appeal for FOIA/PA 2013-0126 and FO!A/PA 2013-0127 which is being submitted in accordance with 10 CFR §9.2S(j):

If the NRC does not respond to a request within the 20 working-day period, or within the extended periods described in paragraph (b) of this section, the requester may treat that delay as a denial of the request and immediately appeal as provided in§ 9.29(a) or sue in a Federal District Court as noted in§ 9.29(c}.

On Tuesday, February 12, 2013 I requested five records from the NRC:

  • ML103490330, Oconee Nuclear Site, Units l , 2, and 3. Oconee Response to Confirmatory Action letter (CAL) 2-10-003, dated Nov. 29, 2010
  • ML111460063, Oconee Nuclear Site, Units 1, 2, and 3. Response to Confirmatory Action Letter

{CAL) 2-10-003, dated April 29, 2011

  • ML100780084, Generic Failure Rate Evaluation for Jocassee Dam Risk Analysis
  • ML101610083, Oconee Nuclear Station, Units 1, 2, and 3, - External Flood Commitments
  • Ml101900305, Identification of a Generic External Flooding Issue Due to Potential Dam Failures My incoming FOIA request is included as Enclosure 1.

On February 13, 2013 I was sent an Acknowledgement letter informing me it would take longer than 20 days for me to receive my response and informing me that the NRC was assigning tracking number 2013-0126 to my request. As of the date ofthis letter, it has been 44 days since FOIA/PA 2013-0126 was received by the NRC. I have included the NRC's 2013-02-13 acknowledgement letter to me as .

Please note that the records I have requested all fall within the scope of FOIA 2012-0128 (ML12030A105) which was submitted by Paul Koberstein on January 27, 2012 and received by the NRC on January 30, 2012. I have included Mr. Koberstein's incoming request as Enclosure 3 and the NRC's acknowledgement letter to him as Enclosure 4. So, although my FOIA request (2013-0126) is "only" 44 days old, the NRC has had Mr. Koberstein's request for 425 days and to my knowledge has still not released all the requested records. The only record of response that I can find to Mr. Koberstein's

January 27, 2012 request is a December 4, 2012 partial response (Ml12363A094) which I have included as Enclosure 5.

In his Ja~ry_2 ~.,_2009 Memorandum on the freedom of Information Act, President Obama stated:

In responding to requests under the FOIA, eKecutive branch agencies should act promptly and in a spirit af cooperation, recognizing that s11ch agencies ore servants of the public.

I realize that the NRC's FOIA office is understaffed, but taking 44 days to provide five documents - for which they were given the ADAMS Accession numbers - is not acceptable. It is not living up to the President's expectation. Additionally, the documents! requested (two letters of response by a licensee to a Confirmatory Action Letter, a letter from a licensee specifying commitments to address a significant safety concern, a technical evaluaUon on the prob.ability of dam failures, and a memorandum proposing a Generic Issue on flooding due to dam failures) are documents which should have always been public.

In his January 21, 2009 Memorandum, President Obama stated:

... agencies should toke affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.

When the President states "what is known and done by their Government I am sure you recognize, as I do, that he would consider the five documents requested in FOIA 2013-0126 to fall under that category, The documents I requested are clearly documents which should have been made public without waiting "for specific requests from the public."

Of the records I have requested, one(~! 10]490330) has been released in ADAMS in response to FOIA/PA 2013-0116 by Carl Stelzer. Although I have not been formally informed of the release of Mll03490330 by the NRC's FO!A office, since I am now aware that it is publicly available in ADAMS, I can consider it as provided under FOIA 2013-0126 and do not need a hardcopy sent to me.

I am stil! awaiting the release of the following documents:

  • Mlll1460063
  • Ml101900305 A redacted version of ML100780084 (Ml13039A084) was released in ADAMS in response to FOIA/PA 2013-0110 by Paul Blanch, a redacted version of ML101610083 (ML130S1A896) was released in ADAMS in response to FOIA/PA 2013-0113 by Joe Carson, .and a redacted version of MU01900305 (ML13039AQ86) was released in ADAMS in response to FOIA/PA 2013-0133 by Kay Drey.

I do not agree with the redactions the NRC's Office of Nudear Reactor Regulation (NRR) applied to the documents released to Mr. Blanch, Mr. Carson and Ms. Orey. I believe NRR is abusing the scope of FOIA Exemption 7(F). FOIA Exemption 7(F) is meant to protect law enforcement informants. By broadly categorizing protection against sabotage as falling -under Exemption 7(F}, NRR is bypassing the legislative checks and balances which were meant to occur as part of the Freedom of Information Act. There is a process for redacting information which the NRC believes is useful to saboteurs. That process is to mark 2

the documents as classified materials or as Safeguards. If neither of these designations legitimately applies, then the process is to go to the US Congress and ask for a new statutory designation for which NRR can use FOIA Exemption 3. Abusing Exemption 7(f) is not what the President expects NRR to do:

The Freedom of Information Act shaufd be administered with a cfea, 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 of speculative or abstract fears.

I recognize that the way we have handled the Jocassee/Oconee issue is embarrassing. I recognize that it is embarrassing for us to admit that the original licensing for Oconee Station failed to take into account the probability of flooding due to a failure of Jocassee Dam. I recognize it is embarrassing for us to admit that the flood wall around Oconee is undersized and we have known about it since early 1994 yet have not been able to get Duke Energy to correct it. I recognize that it is embarrassing that it took over two years to route an Information Notice and a Generic Issue on flooding due to upstream dam failures. But, as the President stated, "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."

With regard to "speculative or abstract fears", withholding from the public- for over six years- the significant safety liability which Jocassee Dam poses to the three reactors at Oconee Nuclear Station because of vague concerns about terrorism and sabotage is giving into "speculative or abstract fears".

None of the information redacted from the documents provided to Mr. Blanch, Mr. Carson and Ms. Drey contain any reference to security matters. The weak points in the dam's construction - if there are any

- are not revealed. The physical security of the dam - if there is any - is not discussed. AU that is revealed by the redacted material is the severe SAFETY liability posed to the public by a failure of Jocassee Dam. It is the President's expectation that "In the face of doubt, openness prevails". I have much doubt about NRR's speculative and abstract fears regarding sabotage of Jocassee Dam and I expect openness to prevail. Maybe there is a legitimate security threat to Jocassee Dam, but the information redacted from the documents does nothing to make that security threat worse yet it does plenty to keep the public from being informed "about what is known and done by their Government."

I expect to receive unredacted versions of Ml100780084, Ml101610083, and ML101900305 as part of FOIA/PA request 2013-0126. If the NRC does not intend to send me unredacted versions of these three documents and if the NRC instead intends to provide me the redacted versions which were provided to Mr. Blanch, Mr. Carson and Ms. Drey, then I expect you to formally tell me in a FOIA response so that I can pursue the release of the requested documents in accordance wlth 10 CFR §2.29(c). 10 (FR §9.:tCJ(L,I Also, I expect to receive an unredacted version of Mllll460063 which to my knowledge has never been publicly released by the NRC in either an unredacted or a redacted form since being requested by Paul Koberstein 425 days ago, since being requested by Jim Riccio 191 days ago (ML12263A087}, and since being requested by me 45 days ago. I have included Mr. Riccio's request as Enclosure 6.

I recognize that, to the NRC, Paul Koberstein's and Jim Riccio's requests might seem daunting-especially given that emails fall under the documents they seek- but to delay formal correspondence between the NRC and a licensee for 425 days and 191 days respectively is unsatisfactory. The NRC should release ALL correspondence with licensees prior to getting a FOIA request for it. lf parts of the correspondence must be withheld, then it should be redacted - but a few sensitive sentences should 3

not cause an entire piece of correspondence to be withheld. That is what the Attorney General alludes to in his March 19, 2009 Memorandum:

"... agencies should readily and systematically post information online in advance of any public request. Providing mare information online reduces the need for individualized requests and may help reduce existing backlags. When information not previously disclosed is requested, agencies should make it a priority to respond in a timely manner. Timely disclosure of information is an essential component of transparency. Long delays should not be viewed as an inevitable and insurmountable consequence of high demand."

I have included the President's memo as Enclosure 7 and the Attorney General's memo as Enclosure 8 since, apparently, there are some offices within the NRC that didn't get the memo.

Also enclosed with this letter (Enclosure 9) is a five page list of documents relating to the flooding hazard which Jocassee Dam poses to the three reactors at the Oconee Nuclear Station. This list was originally included in a 2012-10-15 letter to the Senate Committee on Homeland Security &

Governmental Affairs and in a 2012-11-14 letter to the Senate Committee on the Environment & Public Works. There are 101 documents listed on Enclosure 9. On the list I highlighted thirteen documents which were originally stamped "Official Use Only- Security-Related Information" or some similar designation which prevented them from being shared with the public. All thirteen of these documents were released under the Freedom of Information Act with no redactions, which brings into question why they were originally stamped as needing to be withheld from the public. Was it "because pubfic officials might be embarrassed by disclosure"? Was it "because errors and failures might be revealed"? Or was it "because of speculative or abstract fears'?

Also contained on Enclosure 9 are fifteen documents which were marked "Official Use Only- Security-Related Information" but have since been released with redactions claiming Exemption 7(F). Even if the redactions implemented in response to FOIA Exemption 7(F) were in fact necessary, under the President's and Attorney General's guidance these documents should have still been voluntarily shared in a redacted form prior to the submittal of a FOIA request. Additionally, there are six documents listed which I could not find electronically, and sixty documents which are internally in ADAMS but, despite Mr. Koberstein's and Mr. Riccio's requests, are still non-public. Note that these non-public documents consist of formal correspondence between the NRC and a licensee on a significant safety concern, internal NRC format memos, internal NRC analysis reports, Power Point presentations, etc. It is my position that we should not wait for Freedom of Information Act requests to release these documents; we should follow the President's and Attorney General's guidance and take "affirmative steps to make information public by posting these documents "online in advance of any public request in order to "use modern technology to inform citizens about what is known and done by their Government.

It is impossible for the public to ask for documents on an issue when they do not even know that the issue exists. By designating the flooding hazard posed by Jocassee Dam as "Security-Related Information", the Office of Nuclear Reactor Regulation (NRR) was able to successfully keep this issue from public scrutiny for over five years - until the March 2012 public release of the highly redacted screening report for Gl-204 by the Office of Nuclear Regulatory Research (RES) brought this issue to the attention of intervener groups. Once these groups realized this issue existed, they desired information on it. Was lt right for the NRC to keep this important safety concern from the public for so long? Is that what President Obama expects of us? I do not profess to be able to read the President's mind. But I do profess to be able to read and understand English. And the memo the President released on his 4

inauguration day regarding the Freedom of lnformatlon Act is verv concisely and clearly written in plain English. The President expects Open Government. If there is truly a security concern with some of the information regarding the Jocassee/Oconee issue, then the President expects us to specifically withhold those pieces of sensitive information that might enable terrorists to defeat our security defenses. But I do not believe the President expected us to withhold. in its entirety, a significant safety issue from the American people for over half a decade.

In addition to the five documents requested under FOIA 2013-0126, on Tuesday, February 12, 2013 I also requested the following documents:

  • A 2012-09-18 email which! had sent to NRC Chairman Allison Macfarlane, US Special Counsel Carolyn Lerner, NRC Inspector General Hubert Bell, Deputy Inspector General David Lee, NRC General Counsel Marian Zobler, and NRC Nuclear Security and Incident Response Office Director Jim Wiggins (the subject of the email was "Inadequately Sized Flood Woll at Oconee Nuclear Station Could Lead to Fukushima 5cenorio in the Event of a Failure of the lake lacassee Dam")
  • A letter dated 2012-09-18 to NRC Chairman Macfarlane which was attached to the email mentioned above (the email attachment containing the letter was entitled "Jocossee Dam Failure Concerns.pd!')

My incoming FOIA request is included as Enclosure 10.

On February 13, 2013 I was 5ent an Acknowledgement Letter informing me it would take longer than 20 days for me to receive my response and informing me that the NRC was assigning tracking number 2013-0127 to my request. As of the date of this letter, it has been 44 days since FOIA/PA 2013-012 7 was received by the NRC. I have included the NRC's 2013-02-13 acknowledgement letter to me as 1.

l was hoping my 2012-09-18 letter to the NRC Chairman would lead to a discussion on the way the agency has handled concerns regarding flood protection at the Oconee Nuclear Station, not just from a safety and security perspective but also from the perspective of transparency and Open Government.

Instead, the only response that I received from the Chairman's office was an email from her legal counsel informing me that the Chairman had referred my letter to the Inspector General. On January 17, 2013 I met with two Special Agents from the NRC's Office of the Inspector General who interrogated me under oath for several hours to assess whether there exists adequate evidence to indict me with a federal felonv1 for induding in my letter to the Chairman information which I had obtained from accessing the NRC's internal Agencywide Document Access and Management System (ADAMS) and for failing to designate my letter as "Official Use Only - Security-Related Information". This criminal investigation is occurring even though:

  • My 2012-09-18 letter was not sent outside the federal government. All the people to whom I sent it were either NRC employees, Congressional staffers, or the US Special Counsel. As a licensed Professional Engineer and as a federal servant it is my belief that I have a duty (as well as a right2) to report to Congressional oversight committees when I do not believe the 1 18 USC §1030, The Computer fraud ?and Abuse Act of 1984 as modified by the USA PATRIOT Act 1 The  !-!oyd-L.iFollett~ Act of 1912 was codified as 5 USC §7211- Employees' right to petition Congress: The right of employees ... to furnish information to either House of Congress, or to a committee or t.llember thereof, moy not be interfered with or denied.

5

management at my agency is adequately addressing significant safety concerns despite being internally forewarned of shortcomings for several years. 3

  • None of the information contained in the letter was classified as Restricted Data or Formerly Restricted Data i42 use §2161-2165} nor was any of it designated as Unclassified Safeguards Information (43 use §2167).
  • Although some of the documents were marked as "Official Use Only- Security-Related Information", according to the NRC's FOIA office this marking is "an unofficial administrative marking that has no legal import" and is "not indicio of any national security cfassificotion" (see Enclosure 12). Furthermore, the "Official Use Only - Security-Related Information" documents from which I quoted were not portion marked and therefore it is impossible to tell what parts of the documents were considered non-public by the NRR personnel who marked the documents.

From my reading of the relevant guidance (10 eFR §2.3904 , NRC MD 12.6,5 SECY-04-0191,6 a policy statement,' and several conflicting 8 announcements posted on internal NRC intranet pages} it is my assessment that the material contained in my letter to the Chairman is nothing the NRC is required to withhold from the public.

On October 9, 2012 Dave Lochbaum of the Union of Concerned Scientists requested my 2012-09-18 letter to the NRC Chairman. Mr. Lochbaum's request was registered by the NRC as FOIA 2013-0008

{Ml12283A329). It is included as Enclosure 13. On October 15, 2012 Tom Zeller of the Huffington Post requested my 2012-09-18 letter to the NRC Chairman. Mr. Zeller's request was registered by the NRC as FOIA 2013-0013 (ML12290A070). It is included as Enclosure 14. Mr. Zeller also requested "expedited processing" for his request.

3 There are some who have told me my first duty is to attempt to internally address my concerns through my chain of command. However, there are plenty of technical experts within NRR who had been cittempting to internally Jddr~_;, this concern lor ~E'vN<1I ye,1Vi (e.g. Melanie GcJlloway, Jeff Mitman, Fernando Ferrante). I failed to see how I could have internally prevailed where they had not and chose instead to appeal to the Chairman and our Congressional oversight. It has been my experience from other issues je.g. the 2003-10-21 unrecognize_d~.!E Leactor shutdown ;;t ,Callaway Plant} that the NRC's internal concerns resolution processes do not function adequately, and those processes had already been unsuccessfully used by NRR personnel attempting to address this issue (e.g. ML091170104 - Galloway's non-public NCP form, Mll 10260443 - Mitman's non-public NCP form).

4 .!....OJ;f R §2 .390, Public inspection, exemptions, requ~ts for withholding.

5 Management Directive 12.6, NRC Sensitive Unclassified Information Security Program (Ml04170Q!i03}

6 SECY-04-0191, Withholding Sensitive Unclassified Information Concerning Nuclear Power Reactors from Public Disclosure (ML04231(2!!.f,])

1 NRC Policy for Handling, Marking, and Protecting Sensitive Unclassified Non-Safeguards Information

{Ml052.99014b) 8 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. Management Directive 12.6 is from 1999 (i.e. two years prior to the drastic information handling changes resulting from the 2001-09-11 attacks) and is woefully out of date as evidenced by the need to sort through conflicting guidance in SECY papers, policy statements and intranet announcements to resolve significant questions. 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 ML12313A059. These emails had been meant to point out a problem in the hopes of reaching 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-call~d "allegations" which others have submitted to the Inspector General in my name, no one investigating it has yet engaged me to discuss it. Since my Office Director and mv Union President have been unreceptive to mv 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 SUNSI are provided in ML12313A059.

6

Admittedly, my 2012-09-18 letter to Or. Macfarlane was long (19 pages plus a two page enclosure). But the NRC has had my request for 45 days, Mr. Zeller's "expedited processing" request for 134 days, and Mr. Lochbaum's request for 140 days. It is ludicrous that it would take 140 days for the NRC to determine what parts of my 2012-09-18 letter can be released to the American public. Hopefully you recognize, as I do, that taking 140 days to respond to FOIA 2013-0008 is not living up to the President's and Attorney General's ideals of Open Government: "When information not previously disclosed is requested, agencies should make it a priority to respond in a timely manner. Timely disclosure of information is an essential component of transparency. Long delays should not be viewed as an inevitable and insurmo11ntable consequence of high demand."

I ask that you consider the Attorney General's memo and, with regard to my, Mr. Lochbaum's and Mr.

Zeller's requests, "make it a priority to respond in a timely manner. And please remember:

The Freedom of Information 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 m ight be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.

I also made a third request under the Freedom of Informat ion Act on February 12, 2013:

Ml091170104, Oconee Nuclear Station, Units 1, 2 And 3- Non-concurrence on Evaluation of Duke Energy Carolinas, LLC September 26, 2008, Response to Nuclear Regulatory Commiss.ion Letter Dated August 15, 2008 Related to External Flooding I have included this request as Enclosure 15. On February 13, 2013 the NRC recorded this request as FOIA 2013-0128; I have included the NRC's acknowledgement letter as Enclosure 16.

Ms. Galloway's Non-Concurrence Form falls within the scope of both Paul Koberstein's January 27, 2012 request and Jim Riccio's September 18, 2012 request. So, although I have "only" been waiting 45 days, Mr. Koberstein has been waiting 425 days and Mr. Riccio 191 days - for a 19 page document.

Most of Ms. Galloway's Non-Concurrence Form is stamped "Official Use Only- Security-Related Information" despite not addressing any security related topics. Everything in her Non-Concurrence is a safety concern, not a security concern.

On page 17 of her Non-Concurrence Form, it is denoted that Ms. Galloway "Wants NCP Form Non-Pub!ic". It is unclear why this block was checked. Was it checked becaus.e in April 2009 Ms. Galloway was embarrassed by having the fortitude and independence to, without the benefit of the example of the Fukushima Dai-ichi accident (this was two years prior to that flooding-induced accident), stand apart from the rest of her management in NRR and insist that the flood risks posed by Jocassee Dam to the reactors at Oconee was a credible threat that needed to be rigorously vetted and addressed? Or was it checked because Ms. Galloway was aware of NRR's designation of this topic as a "Security-Related" issue and so, as part of the N RR management team (she was a Deputy Division Director), felt she could not check the block for "Wants NCP Form Public" because that could imply she was disagreeing with the "Security-Related" designation of the Jocassee/Oconee issue? These are not rhetorical questions.

These are questions you need to answer as part of processing this appeal. Why is the Non-Concurrence Form of a Deputy Division Director on a letter to a licensee concerning a serious safety issue - yet 7

containing no discussion of security vulnerabilities - being withheld from the public? Is it "because public officials might be embarrassed by disclosure"? Is it "because errors and failures might be revealed"? Or is it "because of speculative or abstract fears"?

Again, this is an appeal of a de-facto decision by the NRC to withhold from release the following documents:

1. ML111460063, which was requested under FOIA 2013-0126
2. ML100780084, which was requested under FOIA 2013-0126
3. ML101610083, which was requested under FOIA 2013-0126
4. ML101900305, which was requested under FOIA 2013-0126
5. my 2012-09-18 email to the NRC Chairman, which was requested under FOIA 2013-0127
6. my 2012-09-18 letter to the NRC Chairman, which was requested under FOIA 2013-0127
7. ML091170104, which was requested under FOIA 2013-0128 If I do not receive unredacted versions of these seven requested documents by May 13, 2013, then I intend to continue the appeal process in accordance with 10 CFR §9.29(c). So please conform to the President's and Attorney General's desires-for the clear presumption of openness prevailing in the face of doubt and for the timely processing of FOIA requests/appeals-by immediately releasing the documents I have requested.

Although I live in Springfield, IL, I work in Rockville, MO. Please do not send documents to my home in Springfield, IL as I will not get them in a timely manner. Please send all written correspondence to me via email at LSCrisdone@hotmail.com. If your processes will not allow you to do this, then please contact me via phone or ema\l and I wlll come by the FOIA desk to pick up the correspondence.

Very respectfully, Lawrence S. Criscione, PE (573) 230-3959 Enclosures (16)

Cc: Billie Garde, Esq., Clifford & Garde Louis Clark, The Government Accountability Project Paul Koberstein, Cascadia Times Kay Drey, Beyond Nuclear Cart Stelzer, reporter Paul Blanch, consultant Joe Carson, Affiliation of Christian Engineers Jim Riccio, Greenpeace David Lochbaum, Union of Concerned Scientists Tom Zeller, Huffington Post A major flaw in our system of government, and even ;n industry, is the latitude to do less than is necessary. Too often officials are willing ta accept and adapt ta situations they know to be wrong. The tendency is to downplay problems instead of actively trying to correct them, -Admiral Rickover, 1982 8

Enclosure 2 of FOIA Appeal for Requests 2013-0126, 0127 & 0128 Ur!TLD STATES

\!l 1CLE/\R REGULATORY COMMISSION WASHINGTON O.C. ]0555-0001 February 13, 2013 FOIA/PA-2013-00126 Lawrence Criscione 1412 Dial Court Springfield, IL 62704

Dear Requester:

We received your Freedom or Information AcUPrivacy Act (FOIA/PA) request on February 13, 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-2013-00126 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 be over 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 or the queue. We are doing our best to process alt 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.

A sheet has been enclosed that explains in detail the fee charges that may be applicable.

Please do not submit any payment unless we notify you to do so.

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

If you have questions on any matters concerning your FOIA/PA 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 Explanation of Fees

Enclosure 4 of FOIA Appeal for Requests 2013-0126, 0127 & 0128 UNITED STATE~

NUCLEAR REGULATORY COMMtS~ION WASHIN{;1"('N, 0.C. 20555-000 i January 30, 2012 FOIA/PA-2012-00128 Paul Koberstein Cascadia Times 4037 N. Overlook Terrace Portland, OR 97227

Dear Requester:

We received your Freedom of Information AcUPrivacy Act (FOIA/PA) request on January 30, 2012.

Your request has been assigned the following reference number that you should use in any future communications with us about your request: FOIA/PA-2012-00128 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 be over 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, the NRC is experiencing 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: News Media Representative. If applicable, you will be charged appropriate fees for: Duplication Only.

A sheet has been enclosed that explains in detail the fee charges that may be applicable.

Please do not submit any payment unless we notify you to do so.

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

If you have questions on any matters concerning your FOIAIPA 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 Explanation of Fees

Enclosure 11 of FOIA Appeal for Requests 2013-0126, 0127 & 0128 UNITED STATES NUCLEAR REGULATORY COMMISSION Wf,SHINGl ON, D.C. 205 5 5-0001 February 13. 2013 FOIA/PA-2013-00127 Lawrence Criscione 1412 Dial Court Springfield, IL 62704

Dear Requester:

We received your Freedom of Information Act/Privacy Act (FOIA/PA) request on February 13, 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-2013-00127 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 tor: Search and Duplication of Records.

A sheet has been enclosed that explains in detail the fee charges that may be applicable.

Please do not submit any payment unless we notify you to do so.

The following person is the FOJA/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 FOIA/PA 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 Explanation of Fees

Enclosure 12 of FOIA Appeal for Requests 2013-0126, 0127 & 0128 UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, c.c. 2osss.0001 November 15, 2012 FOIA/PA-2013-00034 David Lochbaum Union of Concerned Scientists PO Box 15316 Chattanooga, TN 37415

Dear Mr. Lochbaum:

This is in reference to your Freedom of Information Act (FOIA) request submitted on November 9, 2012 (copy enclosed), in which you requested every record on any subject marked by any NRC employee as ~official Use Only" (QUO) from February 1, 2012 through April 30, 2012. Your stated intent is to conduct an "audit" of the Agency's classification practices.

After careful consideration, we have determined that your request does not "reasonably describe" the records sought, but rather is a broad, sweeping, indiscriminate request for production, lacking reasonable specificity. As such, the request fails to meet the threshold requirements of 5 U.S.C. 552(a)(3) and 10 C.F.R. 9.23(a)(1 )(i). "OUOn is an unofficial administrative marking that has no legal import, and only serves as an alert that the document should be reviewed before release in response to a FOIA request or other public disclosure.

Other examples of such markings are Privileged, Deliberative, FOIA Sensitive, etc. They are not indicia of any national security classiftcation, nor are they dispositive determinations as to any FOIA exemptions. Each document responsive to a FOIA request is individually reviewed and a determination as to the application of FOIA exemptions is made without regard to administrative markings such as "QUO."

Records responsive to your request could be located throughout the various Offices, Divisions, Branches, etc. of the NRC. Short of examining every paper and electronic document possessed by NRC, we could not state with any degree of confidence that all records marked "QUO" have been located. In view of the scope and nature of your request. the documents being sought, and the considerations expressed above, we conclude that your request does not meet the requirements of 5 U.S.C. 552(a)(3) and 10 C.F.R. 9.23(a)(1)(i). Accordingly, no further action will be taken with respect to this request.

If you consider this response to be a denial of your request, you may appeal this determination within 30 days to the Executive Director for Operations. As provided in 10 CFR 9.29, any such appeal must be in writing, addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and should clearly state on the envelope and in the letter that it is an "Appeal from an Initial FOIA Decision."

Sincerely, ISi Donna L. Seal\ng Freedom of Information AcUPrivacy Act Officer Office of the Chief Information Officer

Enclosure:

Incoming Request

Enclosure 16 of FOIA Appeal for Requests 2013-0126, 0127 & 0128 UNITED Sl A TES NUCLl:AR REGULATORY COMMISSION February 13, 2013 FOIA/PA-2013-00128 Lawrence Criscione 1412 Dial Court Springfield, IL 62704

Dear Requester:

We received your Freedom of Information AcVPrivacy Act (FOIA/PA) request on February 13, 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-2013-00128 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 be over 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.

A sheet has been enclosed that explains in detail the fee charges that may be applicable.

Please do not submit any payment unless we notify you to do so.

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 FOJA/PA 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 Explanation of Fees

Criscione. Lawrence From: Criscione, Lawrence Sent: Friday, March 29, 2013 7:44 AM To; FOIA Resource; Ash, Darren; Sealing, Donna; Kilgore, Linda

Subject:

FW: This is a FOIA Appeal for FOJA requests 2013-0126, 2013-0127, and 2013-0128 Attachments: Errata - FOJA Appeal for 2013-0126 0127 and 0128.pdf Linda/Donna/Darren:

Early this morning I sent you a FOIA Appeal for requests 2013-0126, 0127 & 0128. That document had an error on page

3. Please replace that document with the attached document. I apologize for any inconvenience or confusion this has caused.

Thank you, Larry Criscione 573-230-3959 From: Criscione, Lawrence Sent: Friday, March 29, 2013 7:40 AM To: Correia, Richard; Beasley, Benjamin Cc: Kauffman, John

Subject:

FW: This is a FOIA Appeal for FOIA reQuests 2013-0126, 2013-0127, and 2013-0128 Ben/Rich:

Attached is an Appeal for FOIA Requests 2013-0126, 0127 & 0128. These requests were submitted by me 45 days ago but the requested documents were never provided.

I don't need any action from either of you on this. FOIA appeals go to the EDO and the SECY so I'm just passing this your way in case it somehow comes down to you from above. I wouldn't normally expect a FOIA appeal to get much attention outside ofOGC and DEDO, but these concern the Jocassee/Oconee issue so I wanted you to be aware of them in case these are mentioned to Brian.

Please call me if you have any questions. I will be working in the fourth floor simulator most of the day, so the bc~t way to reach me is my cell phone (S 73-230-3959).

Thanks, Larry From: Lawrence Criscione fmai ltQ;_lscriscione(cr hotmail.co m]

Sent: Friday, March 29, 2013 4:05 AM To: CHAIRMAN Resource; Vietti-Cook, Annette; Borchardt, Bill; Ash, Darren; Sealing, Donna; Kilgore, Linda; FOIA Resource Cc: Billie Garde; s::hepherd,rocliffordgarde.com; Louis Clark; paul@timesma.; Kay Drey; earl Stelzer; Paul Blanch; Joe Carson; Jim Riccio; Dave Lochbaum; Tom Zeller; Sullivan, Randy; NTEU, Chapter 208; irl!.[.robbins-umel@nteu.org

Subject:

This is a FOIA Appeal for FOIA requests 2013-0126, 2013-0127, and 2013-0128 The letter attached to this email is an appeal for the refusal of the SRC to release records which were requested under FOIA/PA 2013-0126, 0127, and 0128. Please note:

  • The NRC has had these three FOIA requests for over thirty working days.
  • Two of the records were formal correspondence between the NRC and a licensee (MLI I 1460063, MLI 01610083).
  • One of the records was an internal NRC memo requesting a Generic Issue (MLI01900305).
  • One of the records was an internal NRC study on dam failures (ML I 00780084).
  • One of the records was a Non-Concurrence Form submitted on correspondence with a licensee (ML09 I I 70104).
  • One of the records was a 20 I2*09-18 email sent to the N RC Chairman and another was a letter attached to that email.

All these records should have been easily located and--within thirty working days--readily reviewed and released. I can see no reason for not being able to release these records within the thirty working days allotted by the FOIA process.

The attached letter involves seven documents, three FOIA requests (20I3-0126, 0127 & 0 l 28), and two appeal authorities (SECY and OEDO). You may treat this as one appeal or divide as best suits your needs. All I ask is that J get an answer by May 13, 2013 so that, if all the documents requested are not provided in their entirety, I can continue on with the next step of the appeal process in accordance with IO CFR §9.29(c).

Since l am submitting a FOIA Appeal, by definition I believe the NRC is not obeying the Freedom of Information Act. Please note that I believe this disobedience is due to either a lack of understanding of the FOIA process/exemptions on the part of various NRC staff members, a lack of leadership on the part of various NRC managers, a lack ofallocated resources. or a combination of these factors. I do not believe that anyone involved in the FOIA process at the NRC is guilty of criminal behavior. Nothing in this letter is meant to be an allegation of criminal wrong doing. Please do not turn this letter over to the Office of the Inspector General as "Allegation Material". If anyone is concerned with opinions I express in the attached FOIA Appeal, I ask that in the spirit of an Open and Collaborative Work Environment they engage me and attempt to understand my opinions and my reasons for those opinions. Misconstruing constructive criticisms of our various policies and programs as allegations of criminal wrongdoing is counterproductive. Passing another so-called "Allegation" on to the Inspector General in my name does nothing but waste his resources and the taxpayers' money. If I have an Allegation of criminal wrongdoing to make. I will come forth to the Inspector General and make it myself.

Although I live in Springfield, IL, I work in Rockville, MD. Please do not send documents to my home in Springfield, IL as I will not get them in a timely manner. Please send all written correspondence to me via email at I.SCriscionc(dhotmail.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.

If you cannot accept this attached FOIA Appeal via email, please call me today at 573-230-3959 and I will bring a hard copy by the FOIA office or wherever it must be delivered.

Thank you, Larry Lawrence S. Criscione, PE "Human experience shows thal people, not organizations or management systems, get things done."

2

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