ML20346A170

NRC-2016-000665 - Resp 3 - Interim

ML20346A170
Person / Time
Issue date:	05/01/2017
From:	Mcmillan J NRC/OCIO
To:	Vader D - No Known Affiliation
References
FOIA, NRC-2016-000665
Download: ML20346A170 (45)

Text

NRC FORM 464 Part I (OIG) U.S. NUCLEAR REGULATORY COMMISSION FOIA RESPONSE NUMBER I

(03-2017) ~r...,1.,.f'.*tnc,<t,.,

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RESPONSE TO FREEDOM OF 2016-0665 11 3

I

....... . ~ INFORMATION ACT (FOIA) REQUEST RESPONSE

[Z]

INTERIM FINAL

"'* TYPE REQUESTER: DATE:

jDarth Vader 11 0 1 2612 I DESCRIPTION OF REQUESTED RECORDS:

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 bttps:JJy,,yfw.n.rc.gov/~~ding-m:i/foia/contact-foia.html D Agency records subject to the request are already available on the Public NRG Website, in Public ADAMS or on microfiche in the NRG Public Document 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.

0 We are continuing to process your request.

0 See Comments.

PART I.A - FEES NO FEES AMOUNT" You will be billed by NRG for the amount listed.

Due to our delayed response, you will Minimum fee threshold not met.

II 11 You will receive a refund for the amount listed.

• See Comments for details Fees waived. not be charged fees.

PART 1.8-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.

0 We have withheld certain information pursuant to the FOIA exemptions described, and for the reasons stated, in Part IL 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 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 FJ))A.Resource@nrc.gov. Please be 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 httgs://ogis.archives.gQy/about-ogi§/contact-inforrnation.htm PART I.C COMMENTS ( Use attached Comments continuation paae if reauired)

This interim response addresses four more of the records enumerated in your request: ML I 6204A002, ML16216A703, ML16216A705, and ML16216A710. 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, except as noted herein.

[continued on next page]

s.. - As****~n* ln*nector General for Investigations, OIG

~~Ii 51\.. :Mc3v1.uui~ I NRG Form 464 Part I (OIG) (03-2017)  !~:'~*~ i, ,i~*~~~'cJ Page 2 of 3

NRC FORM 464 Part I (OIG) U.S. NUCLEAR REGULATORY COMMISSION FOIA RESPONSE NUMBER I

(03-2017)

RESPONSE TO FREEDOM OF INFORMATION 2016-0665 11 3

I ACT (FOIA) REQUEST Continued

RESPONSE

TYPE [Z] INTERIM FINAL REQUESTER: DATE:

jDarth Vader PART I.C COMMENTS (Continued) 11 MY O1 2017 I The record you identified as ML16204A002 is a copy of a letter addressed to Inspector General Hubert Bell. It was released in part in response to a prior FOIA request, FOIA-2016-0064. Personally identifiable infonnation (PH) of the third party who submitted the letter was redacted pursuant to FOIA exemption 7(C). We continue to withhold this PH on that basis.

The record you identified as ML16216A703 has been determined not to be an agency record. This record consists of three separate records: (1) this Office's Form 464-OIG response to a previous FOIA request submitted by Lawrence Criscione (who has provided a privacy waiver to you); (2) a Memorandum to File that was released in part in that response; and (3) an annotated version of a Declination Sheet, which was also partially released in that response. However, this copy of the Declination Sheet contains an annotation that was added to the record, presumably by Mr. Criscione, after he received it in response to his FOIA request. The NRC has not located another copy of the annotated Declination Sheet in its records systems. Because these three records were assembled into a single record when Mr. Criscione added them to ADAMS, which you requested in that form, we have considered them as a single record. Accordingly, the record has been determined to be a personal, rather than agency, record and is not subject to the FOIA and has not been processed.

The record you identified as ML16216A705 is a redacted copy of a memorandum of interview, which was generated during an investigation conducted by the Office of Inspector General (OIG). Please note that because ML16216A705 includes the redactions applied to this record as it was released to Lawrence Criscione (who has provided a privacy waiver to you) in response to his FOIA request, FOIA-2014-0327, we are providing it to you in this same format as he received it. No redactions have been made to this record in processing it for you.

The record you identified as ML16216A710 is an email that transmits an attached letter from Lawrence Criscione to 01 G staff, dated January 5, 2014, regarding an audit ofNRC's FOIA process. The identities of third parties (other than Mr.

Criscione, in light of the aforementioned privacy waiver), or other FOIA requesters whose requests have been made publicly available in ADAMS) have been redacted on the basis of exemption 6. Portions of the letter that reflect internal deliberations among NRC staff, of which the letter's originator became aware as part of his official duties, have been redacted on the basis of exemption 5. We note that this same redacted deliberative content appears in records responsive to prior requests, FOIA-2015-0018, 2015-0019, and 2015-0020, which are all publicly available in ADAMS.

NRC Form 464 Part I (OIG) (03-2017) Page 3of3

NRC FORM 464 Part II (OIG) U.S. NUCLEAR REGULATORY COMMISSION ,_F.....

O.....IA (03-2017) 1 RESPONSE TO FREEDOM OF 1 2016-0665#3 1 INFORMATION ACT (FOIA) REQUEST 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.

D 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.G. 2161-2165).

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

41 U.S.G. 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 1O GFR 2.390(d)( 1).

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

[ZJ 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.

[ZJ 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

'11 L!_J in a dearly unwarranted invasion of personal privacy.

[ZJ 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.

[ZJ (G) 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 Jaw.

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

[Z] Other I One of the requested records is a personal, rather than agency, record 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.

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,_,_ - TITLE/OFFICE RECORDS DENIED APPELLATE OFFICIAL EOO SECY IG c.. 1 Josepn A. ,....,, ,;.,,..,. -1 I Assistant Inspector General for Investigations, OIG I I3rd party Pl!; deliberations I I 11 11 I I 11 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."

NRG Form 464 Part II (OIG) (03-2017) Page 1 of 1

r )(7)(C) i Office of Nuclear Regulatory Research U.S. Nuclear Regulatory Commission September 14, 2012 Hubert T. Bell Office of the Inspector Generat U.S. Nuclear Regulatory Commission, MS OS-El3 11555 Rockville Pike Rockville MD 20852

Subject:

Concealment of Significant Nuclear Safety Information by the US Nuclear Regulatory Commission I allege that the Nuclear Regulatory Commission (NRC) has intentionally mischaracteri2ed relevant and noteworthy safety information as sensitive, security information in an effort to conceal the information from the public. This action occurred in anticipation of, in preparation for, and as part of the NRC's response to a Freedom of Information Act request for information concerning the generic issue investigation on Flooding of U.S. Nuclear Power Plants Following Upstream Dom Failure . Specifically requested was the completed screening analysis repon for this issue, !(b){7)(C) I Portions of the publicatly released version of this report are redacted citing security sensitivities, however, the redacted information is of a general descriptive nature or is strictly relevant to the safety of U.S. nuclear power plants, plant personnel, and members of the public. The Nuclear Regulatory Commission staff has engaged in an effon to mischaracterile the information as security sensitive in order to justify witnholding it from public release using certain exemptions specified in the Freedom of Information Act. Evidence supporting tnis allegation includes the redacted tellt from the analysis report, e-mails and written correspondence within the NRC, and e-mail correspondence w ith other Government agencies. The Nuclear Regulatory Commission staff may be motivated to prevent the disctosure of this safety information to the public because it will embarrass the agency. The redacted information includes discussion of, and excerpts from, NRC official agency records that show the NRC has been in possession of relevant, notable, and derogatory safety information for an extended period but failed to property act on it. Concurrently, the NRC concealed the information from the public.

Because this concern involves a violation of law and is not related to a technical opinion or distinction, I am not submitting this concern to (or though) the NRC's Differing Professional Opinion Program. It is my intention to cooperate fully with NRC Office of the Inspector General. It is also my intention to make a copv of ttiis letter available to the public shortly after I have submitted it to your office; therefore, please consider this allegation to be public information.

Enclosure:

Response to Freedom of Information Act / Privacy Act Request, 2012*0106. Final cc: Rep. Donna Edwards, 8730 Georgia Avenue, Suite 610 Silver Spring, Maryland 20910

AGENT'S INVESTIGATIVE REPORT CASE FILE NUM8ER 13-001/13-005 NRC Office of the Inspector General PAGE 1 OF 2 PAGES OETAllS Memorandum of Interview

SUBJECT:

Release of NRC Security Related Documents by RES Employee Interview of! t~J(Jwci IOffice of Nuclear Reactor

! Regulation (NRR), Nuclear Regulatory Commission (NRC).

! On January 15, 2013. ! <b~'MCJ !was interviewed by SSA! !b.mci I, Office of the Inspector General, NRC, regarding~nowledge of Lawrence CRISCIONE's actions relating to the release of security related documents to unauthorized agencies and individuals and NRC's oversight of Oconee Nuclear Station relating to Jocassee Dam I (bw,xci )was interviewed under oath and[Jessentia!ly provided the following information:

Matters relating to Oconee oversight In either 2006 or 2007CE'.}Nas appointed by the.r======::::(t,"==='c;==========..;a;_:;s '= the (b~rxci for the NRC. In this position held that position~un==t" il -=ap=p:-::r':".ox:".!1m

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• actually su m,tte t e eneric Issue- 204 (Gl-204) to be evaluated, because when Oconee was ticensed the evaluation looked at just precipitation and the adjacent Keowee Dam (Page 7)

- When Region 2 identified the finding that Oconee had left open a barrier in the safe sh t own facilit head uarters was asked to assist _; oversaw this process and worked with 1bx7.1-::1 lbw1,c; to evaluate the potential flooding or inundation of the site. (Pages 7-8)

- As NRR looked into this, they learned Duke Energy did a flooding inundation study for FEMA purposes and developed an emergency adiOn plan (EAP). The EAP had Jocassee Dam breaking and then the Keowee Dam breaking, it gave approximately 16.5 feet of water in the site. This was the starting point for NRR. Oconee was licensed to only address precipitation and the Keowee Dam break, which would be 3.5 to 5 feet. Qhought originally it was 3 then adjusted to 5. When NRR initiated the inundation study, the NRC directed them to do a cascading dam failure in the inundation study, both the Jocassee and Keowee Dams. (Pages 7-8)

- l 11>~1~c, !advised after NRR identified what the potential was of the flooding at Oconee, that formed the generic implication, at which timeQpoke to Research to place this in the queue to evaluate cascading dam failures. To look at this based on the potential inundation of the site, (Page 10)

I - It took a couple of submissions to Research for them to accept this matter. but NRR wanted a look I

at the overall impact of what cascading fa~ures would do. because the NRC may have potentially I underestimated that as an agency. This is how Gl-204 came about {Pages 10-11)

• worked with I 1*x1~c, Ito coordinate With the other Federal agencies to finalize the screening report and to determine what could be released in the report. The Army Corps of i""* Engineers wanted information withheld. Other agencies that had information in the report were the Federal Energy Regulatory Commission, TVA, Omaha Power District and the Department of I Homeland Security (OHS). Initially DHS did not want this information complied together in one I package . (Pages 11-12)

- They realized a lot of information they had in the screening report was not publicly available. (Page 13 One exam le hi hi" hted was the time tables of how Ion it would take the water to et to

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AGENT'S INVESTIGATIVE REPORT CASE FILE NUMBER 13-001/13-005 NRC Office of the Inspector General PAGE 2 OF 2 PAGES Oconee, what it would do both to the fuel and containment~ecalled they received a lot of pushback from the folks at Research when they told them they could not release that information to the public. It was during this tim~engaged NSIR to intervene and to direct Research that i I

information cannot be released. stated this finalization process took months. (Pages 13-15) i G new Duke Energy did provide input on the final report. but was not clear on the specifics.

ges 15-16) lso knew there were conversations between Duke Energy and DHS, at the time, discussing whether information in the report constituted critical infrastructure information and that certain information should be withheld~recalled this entire redaction process took from February to July (2012). (Pages 17-18)

- With regards to Oconee oversight.~tated the NRC followed a procedure to look at breaching parameters after learning wtiat the water height would be if Jocassee Dam failed. This included an analysis of the Jocassee dam failing. An independent team was developed and they coordinated with the Bureau of Reclamation. The results of their findings lead Duke (Energy) to make interim compensatory measures and Duke changed their flooding procedures. Duke also constructed a temporary barrier on the intake structure, as well as other barrier walls. (Pages 28-30)

- Duke Energy mitigated the threat~stated *...they were able to provide a mitigation strategy for the plant to be able to survive a breaching of the Jocassee Dam right now. Region II went out and inspected it". (Page 31)

- ~tated the NRC worked expeditiously on this matter and some of the things accomplished took a IOlig time to do, like the breaching parameters and oversight of Duke's application of interim compensatory measures. (Pages 33-34)

- ~ a s not aware of any area where the NRC has not addresses the dam failure issue adequately, or contrary to law or policy. (Page 37)

Matte~ relating to the unauthorized release of protected Information:

- ~was not aware if CRISCIONE sought pennission to release (protected) information. ~was

'ed on the mass e-mail that CRISCIONE sent out to Congress. Afterwards, CRISCIONE called asking for the contactsrz)poke to at the other agencies. 10x1Kc

• informed CRISCIONE that ould need to follow procedures and work with ,wxc: anted to talk to the other

..!9.!ncies t>ecause we have specific points of contact for those agencies. (Pages 21 -22)

~thought CRISCIONE should have foUowed NRC procedures, bec;ause th!!: NRC has proc;esses when you don't a9ree with something. like the non-concurrence and DPO (Differing Professional Opinion} processes to get to the why and understand why the NRC can't release certain information (Page 23)

• I ib.01cr.i !stated CRISCIONE's actions in releasing the unredacted version (of Gl-204) was intentional, and that issuing an unredacted ve~ion of a screening report that has potential nuclear si nrficance due to safe and securit 1s no accident. P es 25-26 AGENT NAME I SIGNATURE. DATE SAi {D~7~Cj I Mardl26, 2013 TEAM LEADER NAME I SIGNATURE DATE I \~~)WC) I _ _ _ __.. .,,_ ..,._J OFFICIAL USE ONLY - o<<ttNVESTIGATION INFORMATION OIGIAIGI Form 701 Aev,~(I: Augu~t 2011

January 5, 2014 1412 Dial Court Springfield, IL 62704 (b)(6)

Office of the Inspector General US Nuclear Regulatory Commission Subj: Input regarding Audit of NRC's FOlA Process-FOIA 2012*0106, 2012*0127, 2012*0126, 2012-0321, 2012-0325, 2013-0008, 2013-0013, 2013-0109, 2013-0127, 2013*0128, 2013-00GA, 2013-009A, 2013*010A, 2013-0lSA, 2013-0213, 2013-0239 In my current position with the NRC, I have nothing to do with the FOIA process other than occasionally processing a FOIA request for records in my possession. However, as a requester, I have probably had more exposure to the NRC's FOIA process from the "customer" side than anyone currently working at the NRC.

Below are some examples I think you should consider during your audit of the NRC's FOIA process.

I have made efforts in the letter below to stick to the topic of the manner in which the NRC handles the Freedom of Information Act (FOIA). However, intimately intertwined with the FOIA process issues is the process for determining and marking Controlled Unclassified Information (CUI). The NRC's position is that CUI and FOIA are entirely separate in that the marking of a document as CUI does not exempt its release under FOIA. Although this is true (i.e. CUI markings do not exempt release under FOIA), what is not true is that the determination of CUI is wholly separate from the FOIA. CUI markings should not impact the FOIA, but the FOIA should-at some level-be used to guide CUI. Indiscriminate marking of documents as CUI greatly impacts the ability of the NRC to meet our time requirements that are both prescribed in US law1 and prescribed in our own regulations.2 In this letter, I make statements which some within the Office of the Inspector General might consider allegations of willful violations of US law and NRC regulations. Although I do believe that willful violations of US law and NRC regulations have occurred, it is not my intent to make such allegations to the OIG. When I have allegations of intentional wrongdoing to make, I will do it via a disclosure to the Office of Special Counsel (OSC). My intent with this letter is merely to provide the audit team with my experiences with regard to the FOIA process. What is needed here is an OIG audit that seeks to understand what has occurred in order to improve our future performance.

1 5 U.S.C. § 552(a)(6)(A}(i): http://www.justice.gov/oip/foia updatesNol XVII 4/page2.htm 2

10 CFR § 9.25(a): http://www.nrc.gov/reading-rm/doc-collections/cfr/part009/part009--002S.html

§1. 2012-02-18 Letter to NBC Chairman On September 18, 2012 I wrote a 19-page letter.i to NRC Chairman M_acfarlane concerning (1) the NRC's lack of timely action regarding the addressing of flooding concerns at the Oconee Nuclear Station {ONS) and (21 our withholding-for over six years~ -of this significant nuclear safety concern from the American public.

There was nothing in my 2012-09-18 letter discussing specific security vulnerabilities regarding either the Lake Jocassee Dam or the reactors at the Oconee Nuclear Station. Although my letter quoted from documents which had been designated "Official Use Only - Security-Related Information", none of these documents contained portion markings and it was thus not possible to tell which paragraphs were considered "Security-Related Information" and which were not. To me, the guidance available (e.g.

10 CFR § 2.390/ NRC MO 12.6,6 SECY-04-0191, 1 a policy statement, 8 and several conflicting 9 announcements posted on internal NRC intranet pages) did not indicate anything in my letter as being Sensitive Unclassified Non-Safeguards Information (SUNSI).

On September 20, 2012 my supervisor was directed to file an NRC Form 183 10 accusing me of a security infraction. In the form it stated:

Sensitive information (SUNS/) was nor opprapriate_ly labeled or marked and was transmitted outside rhe agency to other federal government entities. The email message does not appear to have been sent to anyone outside the federal government. Neither the email nor the attached letter was marked os containing sensitive information.

i ML13256A372: http ://pba du pws.n rc.gov/docs/M L132 5/M L13256A372.pd I

• The NRC's concern~ regarding flooding at the Oconee Nuclec1.r Station following a failure of the Lake Jocassee Dam were fir~t raised in an April 2006 publicly available quartetly inspection report. However, once NRC headquarters became involved in getting the issue addressed (late 2006) all correspondence concerning the issue was designated "Official Use Only - Security-Related lnform.ition; and the issue was not publicly acknowledged until ii appeared in the Huffington Post in September 2012.

• 1 10 CFR § 2.390 Public inspections, e*emptiom,, reque~t~ for withholding b Management Directive 12.b, NRC Sensitive Unclassified Information Security Program (ML041700603) 1 SECV*04-0l91, Withholding Sensitive Unclassified Information Concerning Nuclear Power Reactors from Public Disclosure (ML042310663)

"NRC Policy for Handling, Marking, and Protecting Sensiti.,,e Unclassified Non-Safeguards Information (ML052990146) .

g 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 Dt,ective 12.6 1s from 1999 (i.e. two 't'ears prior to the drastic information handling changes resulting from the 200!.-09-11 attacks) and is woefully out of date as evidenced by the need to ~Ort 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. If anyone from the NRC OIG is interested in auditing our process for handling Controlled Unclassified Information (CUI-the President's term for what we call SUNSI}, I would appreciate an opportunity to speak with them.

10 Report of Security Incident/Infraction/Violation 2

On October 9, 2012 David Lochbaum of the Union of Concerned Scienti sts (UCS) requested my 2012-09-18 letter to the NRC Chairman. We regist ered Mr. Lochbaum's request as FOIA 2013-0008 (ML12283A329). Tom Zeller of the Huffington Post also request ed that letter on October 15, 2012. Mr.

Zeller's request was assigned tracking number FOIA 2013-0013. Mr. Zeller was working on a story at the time and requested "e>Cpedited processing". Per the Freedom of Information Act, Mr. Lochbaum was due a response by November 7, 2012, unless unusual circumstances applied whereby the NRC could take until November 22, 2012.

An internal NRC document (ML13149A079, "Second Quarter Operating Plan FY-2013") indicates that Mr.

Lochbaum's FOIA request was prepared by the Chairman's office and submitted to the FOIA office by th October 26, 2012. This was only 14 working days after M r. Lochbaum's October 9 request and thus we were well on track to provide Mr. Lochbaum a FOIA response within the 20 working days required by 5 U.S.C § 552(a} and by 10 CFR § 9.25(a}.

Despite the Chairman's office having submitted the requested document to the FOIA office w ithin 14 working days, a response was not provided to Mr. Lochbaum w ithin the 20 working days required by the Freedom of Information Act. In t he paragraphs below, I contend that our lack of response to Mr.

Lochbaum was not inadvertent but rather was due to intentional violation of federal law.

First, we were under no obligation to provide an unredacted version of the requested letter to Mr.

Lochbaum within 20 working days, but rather were merely obliged to provide Mr. Lochbaum a response.

If the letter could not be released due to an ongoing Inspector General investigation (as some have speculated to me) then all we had to do to meet t he legal requirements of the Freedom of Information Act would be to inform Mr. Lochbaum we were w ithholding the letter per EKemption 7(A). We had the letter within 14 working days. The Chairman's o ffice reviewed t he letter within 14 working days.

Although there might be plenty of excuses for not releasing an unredacted version of the letter within 20 work!ng days, there are no valid e><cuses for not providing a response within 20 working days.

For reasons unknown to me, we refused to w ithhold my 2012-09-18 letter to the Chairman based on any FOIA exemptions. I can only assume that the reason we would not use FOIA exemptions to withhold my letter is because we knew no FOIA exemptions applied and felt it was safer for us to merely intentionally delay responding to the FOIA requests t han to withhold its release based on illegal application of FOIA eKemptions.

Second, on February 12, 2013 I realized that Mr. Lochbaum's and Mr . Zeller's requests had not yet been 11 re sponded to, so I made my own FOIA request for the 2012 18 letter. My request was assigned tracking number 2013-0127 on February 13, 2013 {ML13044A486 ). In my request, I specifically mention Mr. Lochbaum's and Mr. Zeller's request s by tracking number. By March 29, 2013 it had been 31 working days since the NRC acknowledged receipt of FOIA 2013-0127. In accordance with 10 CFR § 9.25{j) I submitted an appeal to the NRC regarding our de-facto denial of the records sought due to not meeting our statutory required 3 work in da time limit. 12 M a eal letter was addressed to the NRC Chairman (Allison Macfarlane 6

The NRC assigned tracking number 2013-0lOA t o my appeal letter. In the letter I point out t at, 11 Although there is a response to Mr. l ochbaum dated February 6, 2013, this document was not publicly posted until February 14, 2013, and I thus, at the time, had no knowledge of it.

11 10 CFR § 9.2S(b) 3

by then, Mr. lochbaum's request was 140 days old and Mr. Zeller's was 134 days old. I also reminded them of the FOIA timeliness policy put force by President Obama and echoed by the Attorney General.

So, nearly six months prior to the eventual release of the letter, the leadership of the NRC had been aware that we were grossly overdue on providing my 2012-09-18 letter to Mr. Lochbaum and to Mr.

Zeller.

Up until this point (i.e. March 29, 2013) one can argue that the gross delay in responding to FOIA 2013-0008 and 2013-0013 had been due to bureaucratic ineptitude (e.g. low level staff in the FOIA office not having the authority to force staff in other offices to meet the FOIA time requirements, or technical staff in NRR disagreeing upon what could and could not be released regarding Jocassee/Oconee FOIA requests). However, after March 29, 2013 we can no longer claim Mr. Lochbaum's and Mr. Zeller's FOIA requests were "lost in the bureaucracy" since, on 2013-03-29, the highest levels of NRC management were informed of the issue. Yet it would still take nearly another six months before Mr. lochbaum's, Mr. Zeller's and my own fOIA requests were answered.

On April 9, 2013 we provided Mr. Lochbaum a third partial response to FOIA 2013-0008 and on April 18, 2013 we provided Mr. Zeller a second partial response to fOIA 2013-0013. Neither of these responses included my 2012-09-18 letter to the Chairman despite the fact that: (1) it had been processed by October 26, 2012 and (2) the uppermost leadership of the NRC had been informed 7 (in the case of Mr.

Lochbaum's response) and 14 (in the case of Mr. Zeller's) working days earlier that we were grossly overdue in providing my 2012-09-18 letter to Dave and Tom.

On May 7, 2013 Public Employees for Environmental Responsibility (PEER) submitted a freedom of Information Act request (2013-0239) for my September 18, 2012 letter to the NRC Chairman along with the email it had been attached to and the reference documents which had been included with it. So now the NRC had a fourth request for my 19-page letter to the NRC Chairman which, according to ML13149A079, had been submitted by the Chairman to the FOIA office on October 26, 2012.

On May 23, 2013 per 10 CfR §9.250) Dave Lochbaum filed an administrative appeal concerning the NRC's failure to provide him my 2012-09-18 letter within the 30 working day limit prescribed by 10 CFR

§ 9.25(b). Dave's appeal was captured as FOIA 2013-0lSA.

On May 24, 2013 I wrote the NRC inquiring as to when I could expect to receive a response regarding my overdue FOIA requests and appeals. That letter was addressed to the NRC Chairman, the NRC Inspector General (Hubert Bell), the NRC General Counsel (Margaret Doane), the Secretary of the Commission, the Executive Director for Operations, the NRC's Chief Freedom of Information Act Officer, and to the NRC's FOIA/Privacy Act Officer (Donna Sealing). In that letter I (erroneously) reminded the NRC that I had been waiting nine weeks (it had actually only been 8 weeks) for a response to my March 29, 2013 FOIA appeals. I also brought it to the recipients' attention that Mr. Lochbaum had been waiting 32 weeks and Mr. Zeller 152 working days for my 2012-09-18 letter. And I provided my analysis that "The NRC Chairman is, for some reason, stonewalling Mr. Zeller and Mr. Lochbaum." I closed the letter with an appeal to the NRC to live up to our legal obligations under the freedom of Information Act and our own regulations. So, nearly four months prior to the eventual release of the letter the N RC leadership was again reminded that they were grossly overdue on providing an adequate fOIA response to myself, Mr.

Lochbaum and Mr. Zeller.

On June 10, 2013 several attorneys from the NRC's Office of General Counsel met with technical staff, branch chiefs and division directors from NRR and RES regarding how to respond to FOIA requests concerning the Jocassee/Oconee issue. So for at least three months the Office of General Counsel-that 4

is, the NRC office tasked with ensuring we follow federal law and with ensuring we adequately implement our own regulations-had been involved with resolving these FOIA issues and yet had not seen to it that these grossly overdue FOIA requests and appeals were promptly answered. Also on June 10, 2013, the NRC issued a partial response to PEER's FOIA request (FOIA 2013-0239) yet did not include the 19-page letter to the Chairman in the response, despite the Chairman having submitted it to the FOIA office over 7 months earlier.

On June 13, 2013 I received a shallow one-page response from the N RC's Office of General Counsel regarding my May 24, 2013 letter. Although the June 13, 2013 letter technically might qualify in some courts as the NRC engaging a FOIA requester to work through concerns, the letter made no statement of when I could expect an answer to my requests and provided no justification for the delay in releasing the information other than that responding to my request s "requires coordinating among multiple offices within the NRC to ensure that we are taking a consistent approach". That statement hardly explained to me why Mr. Lochbaum had been waiting 91/2 months for one 19-page letter, Mr. Zeller had been waiting 40 weeks for a request on which he requested "expedited processing", and why I had been waiting 114 working days for my request and 84 working days for its appeal.

According to the RES Plan of the Day, on June 25, 2013 there was an additional meeting between managers from NRR and RES and attorneys from OGC concerning FOIA Jocassee Dam Issues" yet it still took another 11 weeks for my letter to the Chairman to be released.

On July 5, 2013 PEER appealed the NRC's partial response to FOIA 2013-0239. As part of their appeal, PEER complained that my 19-page letter to the NRC Chairman had not yet been provided by the NRC-despite us having 41 working days to provide it.

b 5 a taxpayer would hope that a decision could be made, but two months later (Sept. 16) my grossly overdue FOIA requests and appeals were still not answered.

On August 15, 2013 PEER sued the NRC for release of my 2012-09-18 letter as well of the documents attached to the email which transmitted it.

The NRC did not release my September 18, 2012 letter to the NRC Chairman until they were forced to do so by a lawsuit filed by Public Employees for Environmental Responsibility. The letter was finally released on September 17, 2013 to PEER as enticement for PEER to agree to a motion t o enlarge the time for the NRC to respond to the 2013-08-15 lawsuit.

On September 25, 2013-after waiting 351 days-we provided my 2012-09-18 letter to Mr. Lochbaum in our fourth and final response to his FOIA request. Two days later, on September 27th, Mr. Ash closed Mr. Lochbaum's FOIA appeal (FOIA 2013-015A) to the following statement (I received a similar response to FOIA 2013-0lOA):

On behalf of the U.S. Nuclear Regulatory Commission (NRC}, I am responding to your e-mail message of IVlay 23, 2013, to the Freedom of Information Act (FOIA}/Privacy Act (PA) Officer. You 5

appealed the agency's lock of response to your October 09, 2012, FOIA request (FOIA/PA-2013-0008} for specified records.

Since the NRC provided you o final response to FOIAIPA-2013-0008 on September 25, 2013, this appeal is now closed.

For whatever reason, we deemed that mine and Mr. Lochbaum's denial of timely response appeals needed no explanation for the time delay. Ironically, when a member of the public appeals our failure to respond to a FOIA request within 20 working days, our process for addressing that appeal appears to be to-like the request being appealed-ignore the appeal until it can be trivially closed after we have eventually responded to the request.

As part of your FOIA audit, I would like you to seek to understand why it took so long to release a 19-page letter; a letter which-in the end-contained no redactions other than my home address and cell phone number. Some questions to ask are:

1.1. What investigation was done regarding the security infraction documented on 2012-09-20 via a Form 183? What were the results of this investigation? Was it determined that sensitive information had been compromised? Do the investigation results conflict with the eventual decision to release the 2012-09-18 letter without any redactions other than two PII redactions?

Did this investigation contribute to us not meeting our 20 working day requirement for providing a response to FOIA 2013-0008? Did this investigation justify immediately responding to FOIA 2013-0008 by claiming Exemption 7(A)?

1.2. What exactly did the Office of the Chairman provide to the FOIA office on October 26, 2012 in response to FOIA 2013-0008? Was it the same version of the letter that was eventually released as Mll3256A372? Why wasn't this letter provided to Mr. lochbaum by the November 7, 2012 legal deadline?

1.3. How was Mr. Zeller's October 2013 FOIA request (FOIA 2013-0013) for "eKpedited processing" processed? Was it formally decided to either grant or deny Mr. Zeller's request for "expedited processing"? If so, was Mr. Zeller informed of the decision? How are decisions regarding "expedited processing" made? Given that the requested letter was eventually released with no redactions other than PII, is it reasonable that we could not provide the letter to Mr. Zeller in October 2012 while he needed it for an article?

1.4. Are the bonuses for any Senior Executive Service (SES) employees tied to meeting our legally required FOIA time commitments 13 ? If so, how is the performance measure structured? Is it a "gate" (e.g. going 1 day beyond the time limit is no different than going 364 days beyond the time limit) or does it have a "progressively weighted penalty" (e.g. FOIA's that are two months overdue cause a higher penalty than FOIA's that are just one month overdue)? Once a FOIA is overdue, is there any financial incentive to the SES staff to minimize the "lateness" of the NRC's response?

1.5. How was my March 29, 2013 FOIA appeal (FOIA 2013-0lOA) processed by the NRC? Did the SECY read my letter or was it directed to her staff? Did any meetinss occur to discuss why, after 140 days, we had still not provided a response to Mr. Lochbaum?

1.6. How are appeals submitted under 10 CFR 9.2S(j) (i.e. "lack of response") handled? Is there any requirement in a Management Directive to investigate why the FOIA request has not yet been responded to? Is there any requirement in a Management Directive to engage the FOIA 13 E.g. 5 U.S.C. § 552(a)(6)(A){i) and (iii, 10 CFR § 9.2S(a) and (b), 10 CFR § 9.29(b)-(f) 6

requester and explain the reason for our failure to meet our statutory time requirements? Is it acceptable to merely avoid addressing a "lack of response" appeal until the original request has finally been closed and then to just close the " lack of response" appeal to the fact that it is no longer applicable now that a response has been provided? Although no laws or internal procedures might have been violated, were-in the opinion of the OIG auditors-FOIA appeals 2013-0lOA and 2013-0lSA adequately addressed? Should it be NRC policy to-upon receiving a "lack of response" appeal-investigate why we failed to meet our legally required t ime commitments and to, in our response to the appellant, explain the circumstances that justify an extended response time?

1.7. Why was FOIA appeal 2013-0lOA not addressed by May 13, 2013 (i.e. 20 working days from its acknowledgement by the NRC)? Why, after knowing for 20 working days that we were grossly overdue in our legal deadlines for responding to FOIA 2013-0008 and 2013-0013, was the senior leadership of the NRC not able to ensure these FOIA requests were adequately processed?

Although some FOIA requests cannot be physically processed within the 20 working day legal requirement {e.g. FOIA 2012-0325 which encompassed stacks of documents literally several feet high), when a request is merely waiting on a management decision (e.g. the release of a 19-page letter that the agency had been addressing for over 6 months) is it acceptable for senior leadership to allow that request to continue to be delayed? What is the expectation of action for agency senior leadership when they become aware that we are not meeting a legal requirement that-with merely the will-power to make a decision-we could easily meet?

1.8. What was the cost to the American taxpayer that was accrued by us not releasing my 2012-09-18 letter by the original November 7, 2012 due date for FOIA 2013-0008? How much staff time was directly coded to FOIAs 2013-0008, 2013-0013, 2013-0127, 2013-0239, 2013-0lOA and 2013-0lSA? What was the total dollar value of the staff hours committed to!(b)(S)

(b)(5)

~""'"- - - . . . - - - - - - - - - - - ' How many staff hours were spent ~ (b)(5) l

.__ ____ _. How much money was spent by the NRC responding to the 2013-08*15 lawsuit filed by PEER? How much money was spent by the US Attorney's Office in representing the NRC in the PEER lawsuit? How much money was spent by the US Circuit Court in processing the PEER

v. NRC lawsuit? How much money would have been saved had we released an unredacted version of my letter on November 7, 2012 instead of delaying until September 17, 2013?

1.9. Who finally made the decision to release my 2012-09-18 letter as ML13256A3727 Why was it possible to, within 20 working days of receiving a lawsuit, process my 2012-09-18 letter for release yet not be able to process it within 11 months outside of the lawsuit? Obviously a lawsuit places a higher level of management attention on a subject, but is it acceptable for that lack of attention to be present outside of a lawsuit? Could not procedures be put in place to ensure appropriate attention is applied at the "administrative appeal" phase and thereby possibly avoid a lawsuit?

1.10. How are responses to FOIA appeals handled in the SES bonus structure? Given that appeals are much rarer than FOIA requests, are overdue FOIA appeals weighted differently than overdue requests? Or are FOIA appeals merely lumped in with requests when determining SES performance? Since FOIA appeals are addressed to specific SES managers (e.g. either the EOO, the SECY, the Inspector General, or the General Counsel), is timely response to appeals directly tied to the performance measures for those managers? Are any SES bonuses affected when an inadequate response to a FOIA administrative appeal leads to a FOIA lawsuit that is subsequently lost in court?

7

§2. Richard Perkins' Emails {FQIA 2012-0321)

On September 17, 2012 Tom Zeller of the Huffington Post sent the following request to the NRC's FOIA office:

All email messages concerning Generic Issue 204 and/or upstream dam failures that were delivered to, or sent by NRC employee Richard H. Perkins, PE, Division of Risk Analysis, Office of Nuclear Regulatory Research, US Nuclear Regulatory Commission between January 1, 2010 and September 14, 2012.

Mr. Zelter's incoming request was assigned FOIA 2012-0321. It can be found at:

http://pbadupws.nrc.gov/docs/ML1226/ML12261A237.pdf During the autumn of 2012 Mr. Perkins spent weeks assembling and redacting his emails and notes for release under the Freedom of Information Act yet after a year none of his emails or notes have been provided to Mr. Zeller.

During the summer of 2013 Mr. Zeller left t he Huffington Post tor a fellowship at the Massachusetts Institute of Technology (MIT). As a result, he does not frequently check his old Huffington Post email account. On September 20, 2013-after we had had Mr. Zeller's FOIA request for over a year-the NRC sent Mr. Zeller an email at his Huffington Post email account. Upon failing to hear from Mr. Zeller, the NRC promptly closed FOIA 2013-0321 to the following:

The subject FOIA request is administratively closed due to lock of interest in pursuing the request.

Our closure response to Mr. Zeller can be found at :

http:ljpbad u pws.nrc.gov /docs/Ml 1326/Mll 3266A 17 6. pdf I found out about the closure of FOIA 2012-0321 on November 1, 2013 and immediately informed Mr.

Zeller who promptly informed the NRC he was still interested in the documents.

Please note that it is possible that, due to the Office of Inspector General's investigation into the 14 handling of the Jocassee/ Oconee flooding issues, some-maybe even all-of Mr. Perkins' emails cannot be immediately released to Mr. Zeller. However. under the Freedom of Information Act, we need not release these emails provided we provide Mr. Zeller a response detailing under what e><emption we are withholding the emails. Although I personally doubt that any of the emails-and certainly not most of them-could not have been released months ago, we have no excuse for not having responded to Mr. Zeller long before now.

Mr. Perkins origin<llly submitted his emails to the FO/A contact for the NRC's Office of Nuclear Regulatory Research (RES) on November 8, 2012 and then, on December 14, 2012, re-submitted the material with annotations as to who in other NRC offices need to review it. Email correspondence from the NRC FOIA office shows that in May 2013 the FOIA office was processing the material. Seeing as how 1

• I believe the relevant case number is OlG Case 13-005, but there may be other cases that also apply.

8

Mr. Zeller's FOIA request is over a year old, in your audit of the FOIA process I suggest you seek answers to the following questions:

2.1. Why, after having Mr. Perkins' emails for over nine months, the NRC was not able to provide at least a partial release to Mr. Zeller prior to closing the request on September 20, 2013?

2.2. What interaction, if any, did the NRC have with Mr. Zeller between the September 17, 2012 submission of his request and their September 20, 2013 closu re of his request?

2.3. Who at the NRC prevented a partial response from being released to Mr. Zeller during the one year and three days that his FOIA request was active? Was it bureaucratic incompetence, or did someone place a hold on either the releasing or the processing of FOIA 2012-0321?

§3. Abuse of to CFR § 2,390 (Example: ML1QQ7BQQ84l On February 6, 2013 we released a redacted version of ML100780084 to Dave Lochbaum of the UCS (ML13039A084). Although Mr. Lochbaum never actually requested ML100780084. it was one of the documents that had been attached to my 2012-09-18 email to the NRC Chairman, and we-generously-included within the scope of FOIA 2013-0008 all t he documents attached to the my 2012-09-18 email that had been used to transmit my 2012-09-18 letter to Chairman Macfarlane.

Ml100780084 is a 2010-03-15 NRC generic failure rate evaluation for Jocassee Dam risk analysis prepared by Jim Vail, Fernando Ferrante and Jeff Mitman of the Office of Nuclear Reactor Regulation (NRR). The redacted version of ML100780084 (i.e. ML13039A084) was released to Paul Blanch under FOIA 2013-0110 and was later released to me under FOIA 2013-0126. This redacted document contained only one redaction: a figure detailing a generic cross section of Jocassee Dam.

On March 8, 2013 Jim Riccio of Green Peace, forwarded me a meeting notice for a March 19, 2013 NRC public meeting with Duke Energy concerning the flooding evaluation for Oconee Nuclear Station. At some point, the March 19th meeting was moved to March 25, 2013. On the morning of March 25th, Jim forwarded me the Duke Energy slide presentation which apparently John Boska {NRR) had sent to him.

These slides were, later that day, presented at the March 25th public meeting by Duke Energy. In addition to Mr. Riccio, there was at least one other member of the public present at that meeting:

Colleen Payne, who has worked, lived and run for public office in South Carolina. There was also at least one member of the public on the phone line: a South Carolina resident who is a m ember of Friends of the Earth.

At the meeting, NRR informed t he participants t hat Duke Energy's slide presentation was posted on the NRC's public website and could be found by referencing ADAMS Accession Number ML13084A022.

By March 29, 2013, FOIA 2013-0126 was 30 working days old and I had not yet received a response even though four of the five documents requested had already been released to others in either redacted or unredacted form (including ML100780084 which had been released to Mr. Lochbaum and Mr. Blanch).

So on March 29, 2013 I appealed my request in accordance w ith 10 CFR § 9.250). That appeal was assigned tracking number FOIA 2013-009A.

On April 11, 2013 I finally received a response to FOIA 2013-0126. The response contained the same redacted version of Ml100780084 which we had provided to Mr. Lochbaum on February 14, 2013. I immediately submitted an update to my appeal (FOIA 2013-009A) challenging the redactions made to ML100780084. In my update letter, I noted that the same figure which had been redacted from 9

ML100780084 had been included in the slide presentation which Duke Energy had presented at the March 25, 2013 public meeting (ML13084A022). The public link to ML13084A022 no longer works; sometime after my April 11, 2013 update letter, NRR removed ML13084A022 from public access.

ML13084A022 still exists in ADAMS. The current document assigned that ADAMS Accession Number is the same as the one which Jim Riccio sent me except it contains the following statement on each and every slide:

Withhold from Public Disclosure under 10 CFR 2.390 The statement above comes from 10 CFR § 2.390(b)(l)(i)(A). 10 CFR § 2.390(b) states:

The procedures in this section must be followed by anyone submitting a document to the NRC who seeks to have the document, or a portion of it, withheld from public disclosure because it contains trade secrets, privileged, or confidential commercial or financial information.

I am not an attorney, but my interpretation of 10 CFR § 2.3901b) is that it's subsections apply to "anyone submitting a document to the NRC" and not to NRC staff. That is, the request to withhold Duke Energy's 2013-03-25 public slide presentation "from public disclosure under 10 CFR 2.390" should have been made by Duke Energy, not the NRC. Obviously though, it was not made by Duke Energy. That is, Duke Energy would have no reason to prepare a slide presentation for a public meeting and then request to withhold that already presented presentation from the public.

It appears that the NRC staff has added the statement "Withhold from Public Disclosure under 10 CFR 2.390" to the 2013-03-25 slide presentation in order to justify withdrawing it from the public domain.

In 10 CFR § 2.390(b)(l)(i)(A) it states:

Each document or page, as appropriate, containing information sought to be withheld from public disclosure must indicate, adjacent to the information, or as specified in paragraph (b}(l)(i)(A) of this section if the entire page is affected, the basis (i.e., trade secret, personal privacy, etc.) for proposing that the information be withheld from public disclosure under paragraph (a) of this section.

Despite the "Withhold from Public Disclosure under 10 CFR 2.390" markings, the basis for proposing that the information be withheld from public disclosure is nowhere indicated. It is therefore not clear why the NRC has withdrawn, ML13084A022 from the public domain. However, ML13084A022 was replaced with ML13123A204, which contains the same slides as those presented at the public meeting with the exception of slide 18. Slide 18 is entitled "Jocassee Dam Low Erodibility Classification" and used to contain a generic cross section of the lake Jocassee Dam; the same cross section diagram that was redacted from ML100780084. The diagram has been replaced with a statement of "Diagram removed due to security sensitive information". With regard to this statement, please note the following:

(a) I do not believe the original slide containing the diagram contained "security sensitive information" (b) I do not believe it was removed due to containing security sensitive information but rather believe it was removed in order to justify the redactions made to Ml100780084 and thereby justify our withholding of ML100780084 from the public for nearly three years 10

(c) I do not believe that the NRC has the authority to withhold Duke Energy's slide show under 10 CFR § 2.390. We certainly can remove a diagram from a presentation on our public website if we believe it contains information which should be non-public, but claiming 10 CFR § 2.390 as the source for doing that when the utility wants the information to be public is an abuse of 10 CFR § 2.390.

With regard to item (a): The generic cross section diagram of the Lake Jocassee Dam is very similar to what one can find in any Civil Engineering text book. In my April 11, 2013 letter updating FOIA appeal 2013-009A, I enclosed several diagrams taken off the world wide web that were very similar to the generic cross section of the Lake Jocassee Dam. There is not any information contained in that cross section that jeopardizes the dam's security. Furthermore, Mr. Lochbaum of the Union of Concerned Scientists has pointed out to me a video on Youtube that contains footage ofthe Lake Jocassee Dam being constructed. As mentioned already, NRR themselves sent this diagram to Greenpeace and posted it on the world wide web until I mentioned it in a FOIA appeal as supporting evidence for overturning a redaction. This diagram was not accidentally released by NRR. It was purposefully released because there is nothing in it that is security related. It was then purposefully withdrawn because it was being used by me in support of an appeal to a FOIA redaction.

With regard to item (b): In an April 19, 2008 internal NRR meeting regarding how to pursue the Jocassee/Oconee flooding concerns, one of the division directors voiced concerns that requiring improvements to the Standby Shutdown Facility's flood wall under the backfit rule "would be an admission that the NRC did not regulate the licensee properly in that a flood protection requirement is a mistake" .15 In other words, at least some Senior Executive Service (SES) personnel within NRR were concerned that the Jocassee/Oconee flooding issues had the potential to make the NRC look bad.

On January 6, 2010 the leadership of NRR met to discuss the Jocassee/Oconee issue (ML100280954).

The purpose of the meeting was whether NRR should issue an order to Oconee requiring them to, in a timely manner, mitigate the risks posed by a failure of Jocassee Dam, or whether NRR should merely issue another 10CFRS0.54(f) request for information and potentially follow up with an order later. The "Cons" listed for the "10CFR50.S4(f) option" were that it was not as enforceable as an order and that it had a slower response time for resolution ofthe external flooding issue. The "Cons" listed for the "order option" were that there was the potential for a public hearing and that an order required signature authority. In other words, to go the route of an order, the Commission and the public would need to be made aware of the risks which Jocassee Dam posed to Oconee. Despite the slower response time, NRR opted to go the route of the 10CFRS0.54(f) letter and avoid the Commission and public scrutiny an order would entail. In other words, at least some Senior Executive Service personnel within NRR wanted to avoid the public and the Commissioners knowing the seriousness of the Jocassee/Oconee flooding concerns until NRR had a plan to address them, even if that meant taking longer to get them addressed.

Anyone who understands the basic tenets of human nature will concede that there is a certain level of embarrassment and awkwardness in the NRC having to admit that one of our licensees might not be adequately protected from a credible event such as a dam failure. I concede that, just because it is embarrassing or awkward for the NRC to admit the liabilities which the Lake Jocassee Dam poses to the reactors at Oconee, does not mean that is why we withheld the information from the public. But will you concede that, based on human nature, NRR may have had a desire to withhold this information 15 ML13052A784 11

because it is embarrassing? I think the two paragraphs above demonstrate that at least some personnel in NRR verbalized the concern that the Jocassee/Oconee flooding issues would make the agency look bad if they were made public. The question is, was the issue withheld from the public because of valid security concerns-or even "speculative or abstract fears" which, although invalid, were honestly held by those concealing the issue-or was the issue withheld "because errors and failures might be revealed"?

Here are thirteen examples of documents concerning the Jocassee/Oconee flooding issues which were stamped "Official Use Only" but were eventually released under Freedom of Information Act requests WITH NO REDACTIONS:

ML081640244, Ml090570779, ML12129A186, ML12188A071, ML12206A325, ML12363A083, ML12219A163, ML12363A090, ML13057A612, Ml082390690, ML091060761, ML100150066, Ml101730329 The thirteen documents above are just the ones I know of. There are many more that have not yet been released under the FOIA {either because they have not yet been requested or because the request has not yet been granted). In addition to the above documents, there are another seven which have been stamped by Duke Energy as "This letter contains security sensitive information. Withhold from Public Disclosure under 10 CFR 2.390" yet, after being requested under the FOIA, had no redacted information:

ML082750106, ML092020480, ML091380424. Ml12363Al31, Mll01610083, ML103490330, ML13099A247 There are plenty of other documents which were released under the FOIA with minimal redactions yet had been stamped "Official Use Only" and kept from the public eye in their entirety until requested under the FOIA. By stamping everything "Official Use Only" we kept the whole Jocassee/Oconee issue from the public for six years (from late 2006 until mid 2012).

There are some who would argue that these documents were released once they were requested under the FOIA, so therefore this shows the NRC is not trying to hide anything. But how does the public know to request documents on an issue if they don't even know the issue exists? That is, since all documents mentioning the Jocassee/Oconee issue were withheld from the public as "Official Use Only", how is the public to even know that a serious safety concern exists?

Also, few of the documents listed above were initially released without redactions. Most of them required several administrative appeals and/or a lawsuit prior to being released without redactions.

With regard to item (c): 10 CFR § 2.390 allows licensees to request public withholding of information which we require them to submit to us. It does not allow the NRC to withhold information which the licensee did not request be exempted. The NRC can certainly choose to withhold information from the public through various justifications, but that is only justified through 10 CFR § 2.390 when the licensee is requesting it.

If Duke Energy wants to brag about the design of the Lake Jocassee Dam, then who are we to stop them? Who are we to tell them that they cannot share a diagram showing a generic cross section of their dam? It is not classified information. It is not Safeguards. There is no federal statute preventing 12

them from disclosing it. Who are we to tell them they cannot disclose it? Who are we to claim they want it withheld under 10 CFR § 2.390 when they obviously do not?

Duke Energy wishes to use their generic cross section diagram of the Lake Jocassee Dam to show to the public that it has a "Low Erodibility Classification". And they have every right to use this diagram in that manner. We, on the other hand, need to defend our application of Exemption 7(F} for redacting that diagram from ML100780084 for if we cannot defend that redaction then we must admit that there was no reason to designate ML100780084 (i.e. the Generic Failure Rate Evaluation for Jocassee Dam Risk Analysis) as "Official Use Only* Security-Related Information" and to withhold it from the public for nearly three years.

The Department of Homeland Security has a designation called "Critical Infrastructure Information" (CII).

I am neither an expert in security nor law, but it is my understanding that CII applies to information voluntarily submitted to the Department of Homeland Security that the owner desires to keep non+

public for various reasons (typically for commercial competitiveness). Note that CII is not a designation that the Department of Homeland Security applies to information and forces the owner to abide by. It's the owner's private non-classified information and the owner can share it as they like; it is the OHS, not the owner, who is restricted from sharing the information with the public. If Duke Energy wants to share a generic cross section of the Lake Jocassee Dam with the public to demonstrate its "Low Erodibility Classification", then under the statute for CII they have every right to do so. There are some at the N RC who claim that the generic cross section of the Lake Jocassee Dam is CII and therefore must be withheld. They are mistaken. It is only CII if Duke Energy voluntarily submits it to DHS and requests of DHS that it be withheld as CII. However, since the generic cross section diagram has absolutely nothing to do with the security of the dam and with protecting it from sabotage, Duke Energy has publicly shared it to relieve any fears that the Lake Jocassee Dam is not well-built (note that I have always believed the Lake Jocassee Dam to be a well-built dam-but I also believe the analysis of our internal experts that well-built dams still fail at a frequency of about 2E-4/year).

With regard to 10 CFR § 2.390, Duke Energy's public presentation of the generic cross section diagram provides irrefutable justification for the NRC to reject any claim Duke Energy might make under 10 CFR

§2.390. Instead, we are using 10 CFR § 2.390 to withhold the information from the public without Duke even requesting that we do so. How does this make any sense? How is this not us intentionally boggling our own regulations to suit our desire for justifying the withholding of information from the public?

In your audit of the NRC FOIA process, I suggest you seek answers to the following questions:

3.1. Why would Duke Energy include a diagram of a generic cross section of the Lake Jocassee Dam as part of the Power Point presentation at the March 25, 2013 public meeting but then request that that same cross section be withheld from the public?

3.2. Does 10 CFR § 2.390 allow for the NRC to dictate to a licensee that that licensee must re-submit documents to the NRC requesting withholding under 10 CFR § 2.390 when their original submittal did not contain such a request? That is, can the NRC insist on the licensee requesting withholding under 10 CFR § 2.390 or must all withholding under 10 CFR § 2.390 originate from the licensee's desire (rather than the NRC's desire) that specific information be withheld from the public?

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§4, Arhitraey Withholdina: without Regard (or "Bi& Picture" - Example: Melanie Galloway's Non Concurrence Form 757 (ML09117O1O4 and ML13340A179)

During 2013, Melanie Galloway's January 2009 Non Concurrence Form 757 (ML091170104) has been released in several redacted forms, the latest version being pages 2 through 20 of Ml13340A179.

The portion of ML13340A179 pertaining to ML091170104 (i.e. pp 2-20 of ML13340A179) contains only one redaction: the final line of the table entitled "Risk Reduction From Ongoing Modifications" on page 2 of Melanie's three page argument.

The sole remaining redaction to Melanie's Non-Concurrence Form is, to me, nonsensical. Attorneys from the Office of General Counsel may be able to justify it, but, 1n light of what already has been released in the document, I challenge you to find an enl!ineer who would agree with its continued withholding (for starters, I suggest you ask Ms. Galloway herself to justify this sole remaining redaction).

In the paragraphs immediately preceding the redacted table, Ms. Galloway states the following;

• No other potential initiating event at Oconee is as risk significant. The probability of core damage from o Jocassee Dam failure is three times higher than the sum total probability of core damage from all other initiating events. Duke hos acknowledged that, given a Jocassee Dom failure with subsequent site inundation, oil three Oconee units will go to core damage; that is, given o dam failure, the conditional core damage probability (CCDP) is 1.0. Thus, for o Jocassee Dom failure frequency of 2£-4, there is a conditional core damage frequency (CCDF) of 2.0E-4 (CCDF = IEF X CCDP}.

• For a Jocassee Dom failure, using potentially optimistic assumptions, Duke estimates that containment will fail approximately 59 to 68 hours7.87037e-4 days <br />0.0189 hours <br />1.124339e-4 weeks <br />2.5874e-5 months <br /> ofter dam failure without mitigating actions.

• Under the dom break conditions, resultant flood waters and infrastructure damage would affect public evacuation and potentially affect Emergency Operations Facility response capability.

Duke hos not demonstrated that its radiological emergency pion actions con be adequately implemented under these conditions.

• To reduce risk from other, unrelated initiators, Duke is currently performing several modifications to the Oconee site. As the table below indicates, these modifications will improve risk less than improvements that would mitigate o Jocassee Dom failure.

The table included by Ms. Galloway is merely the justification for her statement in the last bullet immediately preceding it (i.e. "these modifications will improve risk less than improvements that would mitigate o Jocossee Dom failure"). The table provides no insight into how to capitalize on any security vulnerabilities at Oconee Nuclear Station and to claim it somehow identifies a potential target-yet to, at the same time, claim the above four bulleted items are publicly releasable-is unsound.

In a December 18, 2013 letterto Public Employees for Environmental Responsibility jPEERI we provided the following justification for redaction to the table in ML13340Al 79:

Disclosure of the withheld information could reasonably be expected to endanger the life or physical safety of ony individual because information that is expected to be helpful to potential adversaries interested in executing on attack or other malevolent act con be inferred from the withheld information, ond disclosure of the withheld information could thus reasonably be 14

expected to endanger the life or physical safety of the residents living nearby Oconee Nuclear Station.

The above statement is nonsensical when one considers what has already been released in ML13340A179:

a) "Duke has acknowledged that, given a Jocossee Dam failure with subsequent site inundation, all three Oconee units will go to core damage" b) "For a Jocassee Dam failure, using potentially optimistic assumptions, Duke estimates that containment will foil approximately 59 to 68 hours7.87037e-4 days <br />0.0189 hours <br />1.124339e-4 weeks <br />2.5874e-5 months <br /> after dam failure without mitigating actions."

c) "Under the dam break conditions, resultant flood waters and infrastructure damage would affect public evacuation and potentially affect Emergency Operations Facility response capability."

Now compare the above to what is continued to be withheld; a table which mathematically demonstrates that "To reduce risk from other, unrelated initiators, Duke is currently performing several modifications to the Oconee site. .... these modifications will improve risk less than improvements that would mitigate a Jocassee Dam failure."

It might make sense to the NRC attorneys in the Office of General Counsel that the information in items a) through c) can be publicly released yet the mathematical estimation of the actual risk reduction from the proposed modifications must be withheld, but does this make sense to you (the DIG audit team)?

Does it make sense to Ms. Galloway? Does it make sense to the technical staff within NRR?

It doesn't make sense to me. I would like the OIG audit team to explain to me just how someone's life is in danger (which is what FOIA Exemption 7(F) supposes) by the public knowing the reduction to core damage frequency that would occur at Oconee were Ms. Galloway's proposed improvements to be made. To me, this information seems to be wholly about public safety and not at all about security.

That is, this information is useful in the public debate as to whether or not the suggested expenditures jwhich ultimate would come from the Duke Energy rate payers) for improvements at Oconee justify the reduction in risk to the public. I fail to see how withholding this information has anything to do with protecting someone's life. Does knowing this information somehow make the Lake Jocassee Dam a terrorist target whereas knowing the information contained in items a) through c) does not?

In our justification to PEER, we state:

... because information that is expected to be helpful to potential adversaries interested in executing an attack or other malevolent act can be inferred from the withheld information ...

With regard to the above quote, it would be useful for you (the audit team) to know whether (1) there is a security study demonstrating how a potential could infer helpful information from the redacted table or (2) this is not based on any study but is merely an abstract assumption.

I am not an attorney, but I assume there must be a higher bar for withholding information from the public than that it is merely " ... expected to be helpful to potential adversaries interested in executing an attack or other malevolent act. ..". Consider the following hypothetical example:

15

Hypothetical Example: NRC attorneys are worried that there might be terrorist groups wanting to assassinate the President of the United States. These attorneys recognize that in order to successfully e)(ecute such an attack, a primary piece of information that is "expected to be helpful to potential adversaries interested in executing an attack or other malevolent act" against the President is who, of the 300 million Americans, is the President. Therefore, the name of Barrack Obama must be redacted from al! NRC records.

Obviously from the above example the standard of withholding must be higher than merely "expected robe helpful to potential adversaries interested in executing on attack or other malevolent act.

Common sense must come into play. And, with regard to Ml13340Al 79, commons sense dictates that-considering what is already released in the very same document-the information withheld is of essentially no use to terrorists yet is helpful to the public debate on whether or not the NRC's suggested improvements to protect from a non-terrorist induced failure of the lake Jocassee Dam are justified.

Finally, I have been told that the Federal Energy Regulatory Commission (FER() does not release the failure rates for FERC regulated dams and, since the Lake Jocassee Dam is regulated by FERC, the NRC must withhold its failure rate. Although I do not agree with this (i.e. I believe the NRC has a duty to the public to release the failure rates of dams whose failure could inundate a nuclear facility), it is immaterial since (1) we have released this failure rate in other documents and (2) the redacted piece of information is not the failure rate withheld by FERC. That is, the withholding of the information redacted from the table in MLl3340A179 is being done solely at the discretion of the NRC and has nothing to do with commitments to FERC.

In your audit of the NRC FOIA process. I suggest you seek answers to the following questions:

4.1. Why would knowing the information withheld from the redacted table on page 5 of M ll3340Al 79 be of use to potential adversaries yet the information in the bullets preceding it on page 4 not be useful to potential adversaries? Is the utility to potential adversaries an abstract as!">umption or is there an actual security analysis showing how this information could be useful?

4.2. Does Melanie Galloway concur with OGC's redactions to page 5 of ML13340A179? Was she consulted as to the need to continue to redact the table on page 5 in the latest release of her non-concurrence form? Who in NRR believes that-given the release of the bulleted items on page 4-the table on page 5 must continue to be withheld?

§5. lpahiljty to Oyjckly Process Qfficjal correspondence witb Licensees or Documents from Formal MeetinKs (Examples; FQIA 2012-0121, 2012-0128, 2012-012s, 2013-0213)

On April 11, 2013 I submitted FOIA request 2013-0213. Here is the text of that request:

I request that the NRC make the following 69 documents publicly available in its Agencywide Documents Access and Management System (ADAMS):

1. Letter from Albert F. Gibson, NRC, to J. W. Hampton, Duke, "Notice of Violation and Notice of Deviation (NRC Inspection Report Nos. 50-269/93-25, 50-270/93-25, and 50-287/93-25)," dated February 11, 1994

2. Letter from J. W. Hampton, Duke. dated March 14, 1994 16

3. Internal NRC memo documenti11g a meeting between Region II and NRR concerning a hypothetical Jocassee Dam failure.

4. Letter from Albert F. Gibson, NRC, to J. W. Hampton, Duke, "Notice of Violation and Notice of Deviation (NRC Inspection Report Nos. 50-269/94-31, 50-270/94-31, and 50-287/94-31)," dated December 19, 1994

5. Letter from David E. LaBarge, NRC, to W. R. McCollum, Jr., "Oconee Nuclear Station, Units 1, 2, and 3 Re: Review of Individual Plant Examination of External Events (TAC Nos.

M83649, M83650, and M83651)," dated March 15, 2000

6. ML061180451, OCONEE NUCLEAR STATION - INTEGRATED INSPECTION REPORT 05000269/2006002,05000270/200602,05000287/2006002

7. The enclosure to document ML080780143, "IR 05000269-06-016, IR 05000270-06-016, IR 05000287-06-016, on 03/31/2006, Oconee Nuclear Station - Preliminary White Finding"

8. ML062890206, Oconee, Units 1, 2 & 3 - Response to Preliminary White Finding

9. ML070440345, Summary of Revised Fragility Evaluation Results for Jocassee Dam

10. Letter from Bruce H. Hamilton, Duke, to NRC, "Seismic Fragility Study"

11. ML070590329, Manual Chapter 0609_02 Appeal Panel Recommendations (Oconee Reply to a Notice of Violation and White Finding (EA-06-199))

12. ML070610460, Oconee Appeal Panel Review of Manual Chapter 0609.02 Appeal Panel Review of Oconee Standby Shutdown Facility White Finding (EA-06-199)

13. ML072970510, Oconee, Units 1, 2 and 3 - Request for NRC to Review Appeal of Final Significance Determination for SSF Flood Barrier White Finding

14. ML071580259, Consideration of New Information Associated with a Final Significance Determination for a White Finding - Oconee NS

15. ML072770765, 10/01/2007, Slides with Notes for Final Regulatory Assessment of Oconee Flood Barrier Issue

16. ML072770775, Dam Failure Information

17. ML072770777, Questions and Answers Related to Oconee Flood Barrier

18. ML073241045, Reconsideration of Final Significance Determination Associated with Standby Shutdown Oconee Facility Flood Barrier White Finding

19. ML081350689, Briefing Package For Drop-In Visit By Duke Energy Chief Nuclear Officer With Chairman Klein And Commissioner Jaako On May 21, 2008

20. ML082390669, Proposal for a Risk Analysis of the Failure of the Jocassee and Keowee Dams to Assess the Potential Effects on the Safe Shut Down Facility of the Oconee Nuclear Station, South Carolina

21. ML082120390, Oconee Nuclear Station - Revisions to the Selected Licensee Commitments Manual (SLC)

22. 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)

23. ML082550290, Meeting with Duke Energy Carolinas, Oconee Flood Protection and the Jocassee Dam Hazard 17

24_ ML091420319, 12/04/2008 Meeting Summary, Meeting to Discuss External Flooding at Oconee Nuclear Station (Reissuance, with Error on Page 3 Corrected) 25_ ML090480044, Oconee Nuclear Station, External Flood NRR Meeting, Rockvi!le, MD, December 4, 2008

26. ML090280474, Briefing Package for Commissioner Lyons Visit to Oconee on February 4, 2009

27. 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 Commission Letter Dated August 15, 2008 Related to External Flooding

28. ML091030172, Oconee External Flooding Briefing for Commissioner Jaczko

29. ML092940769, 05/11/2009 Summary of Closed Meeting with Duke Energy Carolinas, LLC, to Discuss Preliminary Results of the Recent Inundation and Sensitivity Studies Concerning Failure of the Jocassee Dam and Resultant Flooding at Oconee Nuclear Station. 1, 2. and 3

30. ML090820470, 5/11/2009 Notice of Forthcoming Closed Meeting with Duke Energy Carolinas, LLC, to Discuss Sensitivity Studies Concerning Failure of the Jocassee Dam &

Resultant Flooding at the Oconee Nuclear Station, Unit 1, 2, & 3

31. ML091480116, E-mail re Briefing Package for Visit to Jocassee Dam on June 23, 2009

32. ML091620669, 6/11/09 Summary of Closed Meeting with Duke Carolina to Discuss External Flooding at Oconee

33. ML091760072. NRC Site Visit to the Oconee Nuclear Station on June 15, 2009

34. ML092230608, Oconee, Submittal of Selected Licensee Commitments Manual SLC Revision

35. ML090570117. Oconee Flood Protection and the Jocassee Dam Hazard Basis for NRC Allowing Continued Operation

36. ML092380305, Oconee, Slides for Closed Meeting Regarding External Flood Technical Meeting On August 27, 2009

37. ML092710344, Site Visit Observation on 09/25/2009 by Joel Munday for Oconee

38. ML093080034, 10/28/09 Slides for Oconee Nuclear Station, Units 1, 2, and 3 - Meeting Slides - External Flood NRC Technical Meeting

39. ML093380701, Oconee Nuclear Station, Units 1, 2, and 3, Oconee External Flood Analyses and Associated Corrective Action Plan

40. ML090680737, 12/04/09 Summary of Closed Meeting to Discuss the Duke Energy Carolinas, LLC., 09/26/08 Response to NRC's August 15, 2008 50.54{f) Letter on External Flooding at Oconee

41. ML100280954, 01/06/2010 Briefing to the Executive Team on the Oconee Nuclear Station External Flooding Issue

42. ML100210199, Oconee, Units 1, 2 and 3 - Additional Information Regarding Postulated External Flood Threat Issues

43. ML100470053, Oconee, Units 1, 2, & 3, External Flood, Response to Request for Additional lnformation 18

44. ML100610674, Oconee, Units 1, 2, & 3, External Flood Revised Commitment letter

45. ML103430047, Oconee Nuclear Station, Units 1, 2, & 3, Letter From Duke Energy Carolinas, LLC Regarding External Flood, Response to Request For Additional Information

46. ML100810388, Prepare Briefing Book and Material for Eric Leeds for the Duke Fleet Meeting on March 18, 2010

47. ML100760109, Generic Failure Rate Evaluation for Jocassee Dam

48. ML101600468, Oconee, Units 1, 2 & 3, Response to Requested Information on the Protection Against External Flooding Including a Postulated Failure of the Jocassee Dam

49. Mll0l 750619, QUO - Communication Plan For Issuance of Confirmatory Action letter To Duke For Oconee - External Flooding June 2010

50. ML101890803, 06/29/2010 Summary of Closed Meeting With Duke Energy Carolinas.

LLC, to Discuss External Flooding at Oconee

51. Ml102170006, Oconee Units 1, 2, & 3, Response to Confirmatory Action letter (CAL) 2-10-003

52. ML102990064, NRC Staff Assessment of Duke Energy Carolinas, LLC, Oconee External Flooding Issue (TAC NOS. ME4441, ME4442, and ME4443)

53. ML110180609, Enclosure 1, Oconee Nuclear Station, Major Project Plans

54. ML110260443, Non-concurrence on Oconee Assessment Letter

55. ML103410042, Supplement to Technical Basis for Allowing Oconee Nuclear Station to Remain in Operation Through November 2011, Associated with the External Flooding Issues

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

57. ML111460063, Oconee Nuclear Site. Units 1, 2, and 3, Response to Confirmatory Action Letter (CAL) 2-10-003

58. ML11229A710, E-mail re Briefing Package for Visit to Oconee Nuclear Power Plant on September 12-13, 2011

59. ML11244A024, Briefing Package for Visit to Oconee Nuclear Power Plant on September 12-13, 2011

60. ML11278A173, Oconee Nuclear Station (ONS), Units 1, 2, and 3, Response to Requests for Additional Information Regarding Necessary Modifications to Enhance the Capability of the ONS Site to Withstand the Postulated Failure of the Jocassee Dam

61. ML11294A341. Oconee Nuclear Station (ONS), Units 1, 2, and 3, Response to Requests for Additional Information Regarding Necessary Modifications to Enhance the Capability of the ONS Site to Withstand the Postulated Failure of the Jocassee Dam

62. ML12026A549, Briefing Package for Commissioner Svinicki Visit to Oconee on February 1, 2012

63. Ml12026A254, Communication Plan for Oconee Nuclear Station (ONS) Following Issuance of GI-204 19

64. ML12039A239, Oconee, Units I. 2 and 3 - Request for Withholding from Public Disdosure Duke Energy Letter Dated May 20, 2009 Involving Postulated Failure of the Jocassee Dam

65. ML12039A217, Briefing Package Request for Meeting with Duke Energy on February 16, 2012

66. ML12053A016, Duke Energy Carolinas, LLC - Recommended Revisions to the Oconee Nuclear Station Section of NRC's Screening Analysis Report for the Proposed Generic Issue on Flooding of Nuclear Plant Sites Following Upstream Dam Failure

67. ML12058A236, 02/23/12 Summary of a Teleconference between the US NRC and Duke Energy Regarding Comments made by Duke Energy Concerning the Issuance of the Screening Analysis Report for Generic Issue 204

68. ML12167A372, Oconee. Units 1, 2, and 3, Response to Requests for Additional Information Regarding Modifications to Address External Flooding Concerns

69. ML12215A327, 07/11/2012 Licensee Non-Public Meeting Slides on Oconee External Flood Mitigation To my knowledge, all of the above documents are official agency records. At least sixty-two of the above documents are already in the NRC's internal ADAMS but to my knowledge are not available publicly. Documents l, 2, 3, 4, 5 & 10 might not yet be in ADAMS, but are referenced in ML081640244 and should be readily retrievable since these are either formal correspondence between the NRC and a licensee or they are internal NRC memoranda. Document 7 is likely in ADAMS already, but I do not know the ADAMS accession number. However, it should be readily found since it is associated with ML080780143. For the 62 documents already in ADAMS, the accession numbers have been provided.

On January 4, 2012 Paul Koberstein of the Cascadia Times made the following request under FOIA 2012-0106 (ML12005A074):

"all documents that pertain to the issue of potential flooding of nuclear plants following

~pstreom dam failures."

AlthougA the 69 official agency records listed above clearly fell under Mr. Koberstein's 2012-01-04 FDrA request, we did not provide him any of these documents. Instead, 180 days after his request we closed FOIA 2012-0106 by providing Mr. Koberstein a mere one document. After waiting six months, all Mr. Koberstein received was a highly redacted copy of the "Screening Analysis Report for the Proposed Generic Issue on Flooding of Nuclear Power Plant Sites Following Upstream Dam Failures". We did not even provide Mr. Koberstein the NRC documents that were referenced in that report. Our response to Mr. Koberstein is in ADAMS as Ml12188A241.

There are some at the NRC who would point out that Mr. Koberstein could have appealed our meager record release to him. However, there is a Catch 22. When we provided Mr. Koberstein the one meager document he knew about and closed his response, how was he to know that 20

there were literally hundreds of documents we were still withholding from him? How can the public appeal the denial of release of records when they do not even know those records exist? We had a legal obligation under the Freedom of Information Act to release to Mr.

Koberstein all documents that pertain to the issue of potential {loading of nuclear plants following upstream dam failures and we failed to meet that obligation when we closed FOIA 2012-0106 by merely providing him one document.

On January 27, 2012 Mr. Koberstein made the following request under FOIA 2012-0128 (ML12030A105):

"All correspondence between Duke Energy and the US NRC regarding Jocasse Dam from August 15, 2008 to the present..."

After waiting 312 days. we provided Mr. Koberstein 8 documents on December 4, 2012. Our 2012-12-04 partial response to Mr. Koberstein's 2012-01-27 request is in ADAMS as ML12363A094. The 69 official agency records listed above clearly fall under Mr. Koberstein's 2012-01-27 request but after waiting 440 days we have still not provided them to him.

On September 18, 2012 Jim Riccio of Greenpeace made the following request under FOIA 2012-0325 (ML12263A087):

"any and all documentation regarding Duke Energy's Oconee reactors and their vulnerability due to potential'failure of the Jocassee dam."

The 69 official agency records listed above clearly fall under Mr. Riccio's 2012-09-18 FOIA request yet after waiting 205 days we still have not provided any of them to him.

In a March 19, 2009 memorandum, the Attorney General stated the following regarding Open Government:

Open government requires agencies to work proactively and respond to requests promptly. The President's memorandum instructs agencies to "use modem technology to inform citizens what is known and done by their Government." Accordingly, agencies should readily and systematically post information online in advance of any public request. Providing more information online reduces the need for individualized requests and may help reduce existing backlogs. When information not previously disclosed is requested, agencies should make it a priority to respond in a timely manner. Timely disclosure of information is on essential component of transparency. long delays should not be viewed as an inevitable and insurmountable consequence of high demand.

The 69 official agency records listed above regard a serious safety concern at an NRC licensed commercial nuclear reactor site and thereby clearly fall under the President's definition of information the public needs in order to be informed of "what is known and done by their 21

Government". And the Attorney General clearly had documents such as these 69 official agency records in mind when he stated "agencies should readily and systematically post information online in advance of any public request."

I received a partial response to FOIA 2013-0213 consisting of 8 of the 69 documents requested on June 10, 2013. As mentioned above, Paul Koberstein received a partial response to FOIA 2012-0128 of 8 documents on December 4, 2012 and Jim Riccio received a partial response to FOIA 2012-0325 of 185 documents (mostly emails that do not fall under FOIA 2013-0213) on February 6, 2013. To my knowledge, no other responses have yet been sent for FOIA 2013-0213, 2012-0128 and 2012-0325.

The 69 documents requested under FOIA 2013-0213 are either official correspondence with licensees, formal briefings to NRC upper management, or formal meeting presentations. They are all "Official Agency Records" and at least 62 of them are in ADAMS. There is no reason it should take years to process such a request (Paul Koberstein has been waiting nearly two years for the records requested under 2012-0128).

Under FOIA 2012-0127 Paul Koberstein requested six Official Agency Records on January 27, 2012.

Despite providing the ADAMS accession numbers and despite the fact that the documents consisted of either formal correspondence with Duke Energy or slide presentations from a formal clmed meeting with a licensee, it took us 11 months to finally provide him a response on December 26, 2012.

The reason it took so long to provide a response to FOIA 2012-0127 and the reason it is taking so long to provide complete responses to FOlA 2012-0128, 2012-0325 and 2013-0213 is that the NRC does an inadequate job of marking sensitive information.

Most of the 69 documents requested under FOIA 2013-0213 have been designated "Official Use Only -

Security-Related Information" or something similar_ Since we do not (1) require any justification to be provided as to why a document is "Security-Related Information" and (2) require portion markings to designate the sensitive paragraphs, it is very tedious for NRC staff to process what should be simple FOIA requests.

Providing 69 Official Agency Records for which ADAMS accession numbers have been provided should be a simple and straight forward process. However, since there are no portion markings in these documents, every paragraph must be tediously reviewed prior to release. And since there is no justification as to why the documents are "Security-Related Information" it is impossible to efficiently review the document. And since there is no point of contact listed as to who made the determination that the information in the document is "Security-Related", it is impossible to review and analyze the thought process that went into originally withholding the document from the public.

The NRR statt required to respond to FOIA 2013-0213 has been "set up to fail". Although the documents requested can be easily found, there is no way to efficiently review them within the legally required time commitments in 5 U.S.C. § 552 and 10 CFR § 9.25. The NRR staffer responsible for answering FOIA 2013-0213 has no guidance as to what portions of the documents are considered "Security Sensitive", as to why these portions are considered sensitive, and as to whom to contact to determine the original reason for the security markings.

22

The NRC FOIA staff hides behind the policy that unofficial document designations (e.g. "Official Use Only", "Withhold per 10 CFR 2.390", "Not for Public Disclosure") have no basis on FOIA releases since these designations do not correspond to the legal FOIA exemptions. Although it is true that unofficial document designation should not be relied upon for determining FOIA exemptions, adequate portion marking and adequate justification for those markings is critical to understanding exactly what information is sensitive and why it is sensitive. The FOIA process cannot be "fixed" 16 without fixing our process for designating Controlled Unclassified Information (CUl). 17 In your audit of the NRC FOIA process, I suggest you seek answers to the following questions:

5.1. What is a reasonable time frame for processing the 69 "Official Agency Records" requested under FOIA 2013-0213? What is preventing us from providing all the documents (it's currently 8 months old)?

5.2. ls it reasonable to be designating documents "Official Use Only- Security-Related Information" yet to not provide for the NRC staff (1) the paragraphs of the document which contain sensitive information, (2) the reason why the information is sensitive, and (3) the branch/employee which/who initially determined the information to be sensitive and who should be contacted with any questions regarding the release of the information?

§6. GJ-204 screeotoa Analysis Report (MLH0740482)- Redactions to NLJ32S6A369 as Related to FOIA Exemptions aand 7(F)

The Gl-204 screening analysis report 18 {ML110740482) has been released in several redacted versions, the most recent of which is ML13256A369 that contains redactions to pages 3, 4, 12, 14, 15 and 18.

FOIA exemption 7(F) is claimed for all of the remaining redacted material in the latest FOIA release.

Although OGC might be able to point to some FOIA case law to make a weak argument for justifying the use of FOIA exemption 7(F), a "common sense" review of the material redacted compared to the material released in the very same document show that no one's life is in jeopardy from the inclusion of the redacted material. It appears to me that these redactions are being clung to in order to justify our poor decision to not publicly release the Gl-204 screening analysis report in its entirety when Gl-204 was accepted back in March 2012.

Please review the redactions in Ml13256A369 and decide for yourselves if-based on what is already being released elsewhere in the document-the redacted sections would be of such a benefit to terrorists that their redaction must override the NRC's responsibility to openly and transparently present the Gl-204 screening analysis to the public. Please recognize that the redactions made to this report when it was publicly released in March 2012 dramatically affected its utility with regard to informing the public of a significant safety concern (i.e. the potential for nuclear accidents to occur from the failure of upstream dams). There are some at the NRC (e.g. me, Perkins, as well as others whom I prefer not to name in this document but can direct you to when we meet) who believe that the failure 16 "fixed" in the sense of ensuring the staff reasonably respond to FOIA requests in a timely manner. Taking 11 months to provide Paul Koberstein (FOIA 2012-0127) five formal letters with a licensee and one meeting presentation is not reasonable.

17 "fixing" our cur process consists of rewriting MD 12.6 to require (1) portion marking at the paragraph level, (2) justification for CUI designations, and (3) the contact information for the person or branch that made the CUI determination.

18 "Screening Analysis Report for the Proposed Generic Issue on Flooding of Nuclear Power Plant Sites Following Upstream Dam Failures" (2011- Perkins, Bensi, Sancaktar, Philip of NRC/RES) 23

to release the unredacted report in March 2012 when Generic Issue 204 was announced resulted in no public/media interest in the generic issue. Although it is not-and should not-be the job of the NRC to actively generate public concern in nuclear topics, it should also not be the role of the NRC to actively curtail public/media interest by unnecessarily redacting important reports.

During the routing of the G1*204 Screening Analysis in 2011, Richard Perkins (RES/DRA/OEGIB) felt he was being pressured to unnecessarily redact important information from the report. The purpose ofthe G1-204 screening analysis was to definitively make the case for screening Gl-204 19 into the Generic Issues Program. The purpose of the report was not to provide ammunition to anti-nuclear groups for claiming that certain US nuclear power plants were susceptible to "Fukushima-style" accidents in the event of the catastrophic failure of upstream dams; however, if the report did provide such ammunition, then so be it. It is not the place of the staff of the NRC's Office of Nuclear Regulatory Research to water down its reports in order to protect the sensitivities of nuclear utilities and captured regulators.

In a May 10, 2011 email, Michelle Bensi 10 contacted the US Army Corps of Engineers (USACE) regarding guidance as to whether or not USACE found anything in the Gl-204 screening analysis report to be security sensitive or otherwise restricted. On May 24, 2011, the USACE responded stating (M L13226A348):

"It sounds like your report is fine and not violating the NID [National Inventory of DamsJ security restrictions.

Note that the USACE did not review the Gl-204 screening analysis report in May 2011. However, in an email Dr. Bensi did provide a detailed description of Figure 6 from the report:

" ... the report contains a figure plotting the distance between individual doms and downstream nuclear power plant versus the storage capacity of the dams (using the metric NID storage). In the report, we also describe several individual dams and provide other information from the NID such as the dam type and other storage metrics (normal and maximum storage). We also provide several mops/images showing locotions or pictures of individual dams. These images were generated using Google l'v'lops and Bing fv'lops based on latitude and longitude."

Figure 6-which the USACE had no concerns with in May 2011-is one ofthe few redactions remaining in the latest release of the Gl-204 screening report iML13256A369).

In June 2011, Richard Perkins contacted the NRC's Information Security Branch regarding whether or not the Gl-204 Screening Analysis Report needed to be designated "Official Use Only" and withheld from the public. Richard's position was that the document did not need to be withheld from the public because (1) the study concerned threats to nuclear power plants resulting from dam failures caused by either natural events (e.g. earthquakes or probabilistic maximum precipitations) or latent design/engineering flaws and did not at all discuss security events, {2) the implied security vulnerabilities regarding the issue 19 Prior to being formally screened as a Generic Issue, Gl-204 was known by some pre-GI numeric designator.

Although I could look that des"tgnator up, I believe it is less confusing to just refer to the Generic Issue on upstream dam failures as Gl-204. Please note, however, o,at documents (e.g. emails, memos) vou might encounter regarding Gl-204 prior to its acceptance might refer to it by some other designation than Gl-204).

20 Dr. Bensi is currently with NRO, but in 2011 was in RES/DRA/OEGIB and was one of the authors of the Gl-204 Screening Analysis Report.

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(e.g. that the destruction of an upstream dam could be used to flood a nuclear plant) were of an obvious nature and should not override regulatory discourse regarding the safety (i.e. non-security related) aspects of dam failures, and 13) there was nothing in the document discussing specific vulnerabilities that could be exploited by saboteurs (i.e. how to cause the dam to fail-either by engineering flaws, natural disaster, or sabotage-was not discussed, but rather the subject of the report was the predicted impact on the sampled nuclear plants given an upstream dam failure and the general probabilistic frequency of dam failures due to non-security events). In a June 30, 2011 email to Richard Perkins, Bern Stapleton (chief of the NRC's Information Security Branch) stated {ML13226A273):

"The position taken by RES in your document is sound and supports an uncontrolled, publicly available document The SGI Designation Guide also supports this rationale since there is no mention of any security scenarios {document is a pure engineering and safety analysis. that was not conducted as a res.ult or o terrorist scenario - i.e., world trade center aircraft attack)."

So note that, as of the end of June 2011, both the USACE National Inventory of Dams (NID) and the NRC's Information Security Branch had determined that from their perspective there was nothing in the Gl-204 Screening Analysis Report that needed to be controlled from public release. However, at this point (i.e. June 2011), NRR had for 41/2 years (since late 2006) been keeping this issue (i.e. flooding at nuclear reactor plants due to dam failure) from public disclosure due to supposed security concerns.

Old habits die hard, and thus NRR refused to accept these determinations regarding the publicly releasability of the Gl-204 Screening Analysis Report and for the next 8 months impeded its release due to concerns regarding its alleged "Security-Related" content.

The NRC eventually sent the Gl-204 Screening Analysis Report to the Department of Homeland Security to review (DHS). The DHS clearly states in several emails ~see ML13247A744) that there is nothing in the Gl-204 Screening Analysis Report preventing its public release, However, on a few occasions the OHS did state that, were the document a DHS document, there are parts of it that they would not have included. The OHS specifically mentioned Figure 6 under this category (the same figure which the USACE said was okay in their May 2011 email to Dr. Bensi) in a January 26, 2012 email to the NRC (ML13226A34S) :

"ff this document was a OHS document and it contained Figure 6 on page 14 we would mark it as on FOUO document thus putting handling restrictions on it- not classify it. If Figure 6 was removed we would not place any handling restrictions on it- essentially it would not contain the FOUO markings or any other markings.

We fully understand that since this is the NRC's document you decide whether or not handling restrictions. are placed on the document. We will support whichever decision you make."

Organizations do not have positions; the individual people who make an organization have positions.

And just like at the NRC, there are professional disagreements amongst the individuals within the USACE as to what type of dam failure information should be publicly available. And just as Richard Perkins was able to find people at the USACE to support his position that the Gl-204 Screening Analysis Report was fully releasable to the public, George Wilson (NRR's Dam Safety Officer) was able to find people at the USACE to support his position that certain dam failure information needed to be withheld.

As a citizen, the idea that professional engineers in the civil service would disagree on technical matters is not troubling. What is troubling, however, is the idea that embarrassing yet important information 2S

might be withheld from the public because regulators do not wish to acknowledge potential problems in their domains. In a January 4, 2012 email from Doug Coe, it is suggested that both at the NRC and at the USACE the hold up on the Gl-204 Screening Analysis Report is not so much security-sensitivity as it is mere personal sensitivity to acknowledgement of potential problems regarding dam failures (ML13226A274):

"Apparently, the USACE leadership gets very rankled if someone starts postulating that their dams foil. Their parry line is 'our dams don' t foil' The message rvtike Wieber] is giving us is that we should look/or ways to communicate G/-204 that say what we need to say but that avoid triggering strong adverse reactions from them."

Please note that-to my knowledge-at no point has anyone at any agency reviewing the Gl-204 Screening Analysis Report (e.g. FERC, FEMA, OHS, USACE, lVA) been willing to state in writing that any portion of it could not be publicly released. Although they have stated that, were it their report, there are things they would not release, to my knowledge no one at these agencies has been willing to definitively tell the NRC that portions of the Gl-204 Screening Analysis Report cannot be released. Yet, if you speak to the personnel who have done the redactions to the report (e.g. Ben Beasley) and who have provided input on those redactions (e.g. George Wilson), they will claim that the redactions were necessary due to the requirements of other government agencies (particularly DHS and USACE).

I suggest that your audit team speak with Mr. Wilson and Mr. Beasley and ask them to specifically show you correspondence from outside agencies requiring the redactions that are present in the latest publicly released version of the Gl-204 Screening Analysis Report (ML13256A369). The closest prohibition that I have seen is the following statement in a USACE email {ML13226A281l:

"All of the above information is co be considered FOUO."

The "above information" being referred to pertains to flood heights. Please note, however, that the proclamation from a midlevel staff engineer at the USACE that information "is to be considered FOUO" does not in and of itself invoke a FOIA Exemption (i.e. the " party line" at the NRC is that NRC OUO markings is not a just ification for FOIA Exemption yet these same markings-when coming from an outside agency-somehow justify FOIA w it hholding).

(b)(S) 26

Note that several redacted versions of the Gl-204 Screening Analysis Report (Mll 10740482) pre-date this June 10, 2013 meeting (e.g. Ml113500495, Mll2188A239) and al least one post-dates it (ML13256A369). As best as I can tell, the redacted versions of ML110740482 which pre-date the 2013-06-10 meeting contain redactions based on items 1.a, 1.b and 1.c from the POP sheet whereas the redacted version which post-dates the meeting contains redactions based solely on item 1.c of the POP sheet (i.e. flood elevations resulting from dam failure).

1 Ben 8easley2 was the individual primarily responsible for the original redacted release of ML110740482 (ML113500495) and would be a good person for the audit team to speak with regarding the thought process that went into redacting the Gl-204 screening analysis report. It is my understanding that the June 10, 2013 meeting was called by Ben in order to ensure that RES, NRR and OGC were all in agreement regarding what should and what should not be redacted.

I am not aware of any legal basis requiring the following information to be withheld from the public;

I"'"'

21 Ben Beasley is currently a branch chief in NRR/ DORL but his involvement in this issue stems from his tenure as the branch chief for RES/DRA/OEGIB (Operating Experience and Generic Issues Branch).

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The proclamation that the public cannot know the above information is not coming from any classification guide or authority; it is merely the position of several midlevel staffers within the NRC-staffers who have a vested interest in keeping at least a portion of the Gl-204 Screening Analysis Report from the public in order to justify their withholding of the Jocassee/Oconee flooding issues from the public for nearly siK years under the guise of "Security-Related Information". If the Gl-204 Screening Analysis Report were to be publicly released in its entirety, it would call into question the judgment of the individuals who, for over six years, had been insisting that the dam failure related flooding vulnerabilities at Oconee Nuclear Station cannot be publicly discussed.

OGC may be able to point to court cases that support withholding information contained in item 1 of the POP sheet mentioned above, but can they point to court cases that require its withholding? That is, are there any laws or court precedence that prohibit releasing information pertaining to either (1) dam failure probabilities, (2) specifics of nuclear power events caused by dam failure, or (3) flood elevations resulting from dam failure?

I doubt that there are any laws prohibiting the release of the information from item 1 of the above POP sheet. However, if it is truly important that this information be withheld, then there should be laws preventing its release. If this information is truly security sensitive, then it should be restricted from release by statute in a matter similar to "Restricted Data" 22 or to "Safeguards lnformation" 23

• To my knowledge, the NRC has not made any effort to lobby for a change to the Atomic Energy Act (similar to the changes made in 1980 that established the category of "Safeguards Information") to ensure the adequate control of dam failure probabilities, specifics of nuclear power events caused by dam failure, and flood elevations resulting from dam failure. If such a statute were implemented, then the NRC could clearly prevent the public disclosure of this supposedly security sensitive information by referring to Exemption 3 of the Freedom of Information Act.

In your audit of the NRC FOIA process, I suggest you seek answers to the following questions:

6.1. Why would knowing the information withheld from pages 3, 4, 12, 14, 15 and 18 of Ml13256A369 be of use to potential adversaries yet the remaining information in the report (i.e. the released information) is not useful to potential adversaries'? Is the utility to potential adversaries an abstract assumption or is there an actual security analysis showing how this information could be useful?

6.2.Are there any laws or court precedence that prohibit releasing information pertaining to either (1) dam failure probabilities, (2) specifics of nuclear power events caused by dam failure, or (3) flood elevations resulting from dam failure (note that allowing withholding is different than prohibiting release)?

6.3. ls there any correspondence from the USACE, the DHS or any other federal agency specifically requesting or requiring the withholding of any of the information contained in the Gl-204 Screening Analysis Report (ML110740482)?

6.4. ls the NRC pursuing the incorporation of a change to the Atomic Energy Act to restrict the release of information pertaining to either dam failure probabilities, specifics of nuclear power events caused by dam failure, or flood elevations resulting from dam failure? If this information is too security sensitive to publicly discuss, then should there be a statute ensuring and enforcing its withholding?

22 Prohibited from disclosure by 42 U.S.C. 2161*2165 ii Prohibited from disclosure by 42 U.S.C. 2167 28

§7. Sui:;i:;eslions for Improvement Below are my suggestions for improving our ability to respond to FOIA requests and appeals in a consistent and timely manner. Please note that some of my suggestions involve our process for handling Controlled Unclassified Information (CUI). Although CUI markings are separate from FOIA Exemptions, our discipline with regard to how we designate and control CUI is intimately intertwined with our ability to not only meet our legally mandated FOIA time requirements but also to be consistent as to what type of information we release and what we withhold.

7.1. Revise MO 12,6 to meet Executive Order 13556 and to include Requirements for Portion Marking Management Directive 12.6 (NRC Sensitive Unclassified Information Security Program, 1999) is woefully out of date as evidenced by the need to reference multiple outside documents (e.g. SECY papers, policy statements and conflicting internal announcements). There is currently a government-wide initiative (Executive Order 13556) to develop common policies for handling Controlled Unclassified Information (CUI). Although the final determinations have not yet been made, we essentially know 90% of what will be needed. Given the current state of MD 12.6 and the related conflicting SUNSI guidance, there is no excuse for delaying an immediate revision to MD 12.6 that incorporates the known requirements from the Executive Order 13556 initiatives. Once the finalized requirements are determined, MD 12.6 can undergo an additional minor revision. But delaying a major revision to MD 12.6 due to the open ended CUI initiatives is irresponsible; MD 12.6 is woefully out of date now and needs to be addressed to ensure consistency in our ability to control sensitive information (and to transparently release non-sensitive informationj.

Any revision to MD 12.6 should require "portion markings" at the paragraph level. We are no longer the Atomic Energy Commission. We do not operate enrichment reactors to make nuclear warheads.

Secrecy needed to prevail at the AEC and needs to continue at those portions of the DOE involved in the maintenance and production of nuclear arms. If someone at the DOE thinks the American public needs to know the wall thickness of the tritium flasks in our H-bombs, then the burden should be on them to present the case for transparency. However, at the NRC, transparency and not secrecy needs to prevail.

If someone at the NRC wants to keep the failure rate of the Lake Jocassee Dam from the public, then the burden should be on them to present the case for withholding.

Requiring portion markings makes it onerous to withhold information from the public in that those wishing to withhold information must now, on a paragraph by paragraph basis, make the case as to what information must be withheld. However, in the long run, portion marking accomplishes the following:

• Although it increases required staff resources during the authoring of a document (due to the extra effort required to portion mark) it immensely saves staff resources both when that document is referenced in a downstream document and when that document is requested under FOIA jdue to the staff who are referencing or releasing the document being able to immediately and efficiently determine what is and what is not sensitive information and whom to contact if there are questions).

• Ensures information is not inadvertently released by ensuring that it is apparent to any user of the document exactly what is and what is not sensitive and why.

• Provide a counterbalance to the bureaucratic tendency to "over withhold".

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With regard to the last bullet, consider my current predicament. On September 18, 2012 I wrote a letter to the NRC Chairman which-although it was eventually released by the NRC with no redactions other than my home address and cell phone number-was considered to contain sensitive information by some at the NRC. Because I did not fault in the direction of withholding (i.e. because I took to heart the President's guidance that "In the face of doubt, openness prevails" 2*) I have thus far (1) had a security infraction filed against me, (2) become the subject of an OJG criminal investigation, (3) endured the stress associated with the threat of felony charges being leveled against me, and (4) spent $3,000 in legal fees defending myself. I could have avoided all of the above by merely ascribing to a philosophy of "In the face of doubt, default to withholding". When has the OIG ever criminally or administratively disciplined an NRC employee for incorrectly withholding information? I doubt ever. But I have experienced potential discipline due to an accusation of incorrectly releasing information. At the NRC, and throughout the federal bureaucracy, there is little personal risk to-when it comes to withholding or releasing-defaulting in the direction of withholding. Because of this, there is a strong tendency in our bureaucracy to "over withhold". Requiring portion markings at the paragraph level provides a much needed counterbalance to this tendency to "over withhold".

7.2. Revise 10 CFR § 9.21 in the Spirit of 2009-03-19 FOIA Memo On page 3 of his March 19, 2009 FOIA memo,1~ the Attorney General states:

... The President's memorandum instructs agencies to "use modern technology to inform citizens what is known and done by their Government." Accordingly, agencies should readily and systematically post information online in advance of any public request. Providing more information online reduces the need for individualized requests and may help reduce existing backlogs ...

At the NRC. 10 CFR § 9.2.l(c) lists the types of documents which the NRC readily and systematically posts online in advance of any public request. 15 In addition to the six types of records currently listed in

§ 9.2l(c), I suggest that two additional types of records be added:

(7) all correspondence between the NRC and its licensees concerning inspections, including correspondence following through on issues which arise during inspections (8) all correspondence between the NRC and its licensees concerning license amendments, including correspondence following through on issues which arise during the evaluation of license amendments To me, it is unconscionable that-at a supposedly "transparent" regulatory agency-formal correspondence between the regulator and the licensees is not automatically made available to the public for inspection. I believe that all the correspondence over the years between the NRC and Duke Energy regarding the Jocassee/Oconee flooding issue should have been publicly available. If in any of that correspondence there was sensitive information, then the correspondence should have at least 14 January 21, 2009 memo on the FOIA: http://www.whitehouse.gov/the press office/FreedomoflnformationAct 2~ http://www. iustice .gov/ag/foia -memo.ma rch2009. pdf

-~ 10 CFR § 9.21 lists the records of NRC activities that are "available for public inspection and copying". Although 10 CFR § 9.21 nowhere mentions "online", with the implementation of ADAMS (and as noted in §9.21(b)) the documents listed in §9.2 l(cl are. for the most part, available to the public on line and are precisely the types of documents the Attorney General 1s referring to in his memo.

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been made public with the sensitive information redacted {something that is easily accomplished if sensitive documents are appropriately portion marked).

It is understandable that, for some sensitive issues regarding nuclear security, the public might not be provided all the specifics. But to keep the very existence of a significant nuclear safety issue from the public is unconscionable.

We should not have had to wait for our correspondence with Duke Energy to be requested under the FOIA-we should have, in the spirit of Attorney General Holder's 2009-03-19 memo, readily and systematically posted our correspondence with our licensees online in advance of any specific requests.

Had we done this, then, as predicted by the Attorney General, we would have reduced the need for individualized requests and would have reduced our FOIA backlog.

If we readily and systematically include our correspondence with licensees on line, we will negate the need for many FOIA requests.

Is it our goal to be open and transparent? How can we claim to value openness and transparency yet not commit in 10 CFR § 9.2l(c) to make our correspondence with licensees available for public inspection.

There are some who might argue that including our correspondence with licensees in 10 CFR § 9.21(cl would be a significant burden. It would not. Please note the following:

• Although we do not currently include all our correspondence with licensee is publicly accessible ADAMS, nearly all of it is processed internally in non-public ADAMS. Once a document is already internally in ADAMS, the burden of making it publicly available via ADAMS is mainly associated with a SUNSI review.

• If we require portion marking of all future CUI documents, then the "SUNSI review" becomes trivial. Documents which we are voluntarily relea:sing to the public (i.e. information we are readily and systematically posting online in advance of any public request) can be redacted as we see fit. That is, since they have not yet been requested under FOIA, we need not justify withholdings based on FOIA exemptions. We can merely exclude the portions which were marked CUI and-if in the future a FOIA request is made for the document-at a later date determine if the withholding of the redacted information is justified under the FOIA.

So for properly portion marked official CUI correspondence, publicly sharing it via ADAMS would be as simple as creating a public copy with the CUI portions redacted. This can be done by clerical staff and need not be performed by technical staff. Although this \NOuld be added work on the part of some clerical staff, it would greatly alleviate the burden which some of the technical staff have had to endure in processing large FOIA requests (requests which come in from the public haphazardly and are thus unavoidably distributed to the technical staff haphazardly resulting in much redundant work and often times conflicting releases).

7.3. Pursue an Exemption 3 Statute for Inundation Information At a June 10, 2013 meeting between senior staff from RES, NRR and OGC, George Wilson and John Boska proposed that the following dam related information should be withheld from FOIA requests:

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a. Dam failure probabilities

b. Specifics of nuclear power events caused by dam failure

c. Flood elevations resulting from dam failure In its wisdom, Congress provided within the Freedom of Information Act a solution for the withholding of information which the NRC believes to be useful to enemies of the United States, That solution is Exemption 3:n *

(3) speclfk:ally exemp1ed from disclosure by Sta.lute !Other than section il1J2 of this title). If that statute-W (1) requires that the maners be withheld rrom the public in such ,a manner as to leave no discretion on the Issue: or (II) est.abllshes panlcular trttena for withholding or refers to particul.i.r types of maneri 10 be wlthheld: anci (I) If en.i.cted after the dalf of enactment of lhe OPEN FOIA Act of 2009, spec1flcafly cites to 1h1s paragraph.

What Congress intended for the NRC to do with regard to "dam 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 cannot be released to the public, but rather for the NRC to come to the Congress with a 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 safety-related information. Congress would undoubtedly put some restriction on* the withholding of the information (e.g. very specifically defining what falls under the statute and 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.

If the NRC is determined to follow the June 10, 2013 advice of Boska and Wilson regarding the withholding from the public of "dam failure probabilities, specifics of nuclear power events caused by dom failure, and flood elevations resulting from dam failure", then we should petition the Congress to provide an "Exemption 3 statute" (similar as to what was done for Safeguards information in 1980) to legally restrict this information from disclosure. Until such a statute is in place, we should obey the law (i.e. 5 U.S.C. §552) and appropriately release non-exempted information whether or not it contains information which Boska and Wilson wish to restrict.

7.4. Ensure FOIA Case Law is Incorporated into SES Bonuses, Management Directive 3.1, and Staff Training The Freedom of Information Act is very clear that 20 working days is the time limit for making a "determination" to a FOIA request. The FOIA is not so clear as to what exactly qualifies as a "determination". Similarly, the FOIA is not so dear as to what exactly constitutes extension of this time limit due to "unusual circumstances" and "exceptional circumstances".

17 5 U.S.C. § 552(bl(3) (i.e. "Exemption 3")

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FOIA case law (e.g. CREW v. FEC) clarifies some of these terms. It should be evident to you that-regardless of the most well intentioned efforts by NRC leadership-there will be times when a FOIA request cannot physically be addressed within the prescribed 20 working day time limit (e.g. FOIA 2012*

0325 or some of the FOIA requests related to the Fukushima accidentl. These FOIA requests should somehow be formally designated-based on criteria found in FOIA case law-as "exceptional" and should have a defined process dictating the timeliness of their handling !i.e. a process for declaring a FOIA request as "exceptional" and a process for handling such requests should be defined in MD 3.1).

For instance, FOIA case law recognizes that as long as the agency is consistently providing partial responses to a large FOIA request then it is meeting the intent of the Freedom of Information Act. In my opinion, our Management Directives should dictated that, if a FOIA request cannot be closed within 20 working days, then it should be rigorously tracked to ensure that every month a partial response is being provided of all relevant documents processed during that month. If a month goes by with no progress, then we should not consider ourselves as meeting the intent of the FOIA as defined in FOIA case law.

What I believe currently occurs is that SES bonuses "take a hit" as soon as a FOIA request becomes 30 working days old but, as it ages, no further penalty occurs. In my opinion, no one should "take a hit" for a FOIA request that cannot physically be answered within 20 or 30 working days (i.e. an "exceptional" FOIA request). However, bonuses should not only "take a hit" when reasonable FOIA requests go overdue, but they should also be somehow penalized for excessive aging of FOIA requests.

I believe a SES bonus structure should be established that:

• Penalizes SES leadership when the "average age" of normal FOIA requests during the fiscal year is greater than 20 working days,

• Progressively penalizes SES leadership as the average age climbs beyond 20 working days

• Exclude "exceptional" FOIA requests from the "average age"

• Factor "exceptional" FOIA requests into the SES bonus structure via some metric based on whether or not the agency is meeting its Management Directive requirements regarding periodic partial responses Somethins needs to be done to prevent asing FOIA requests from languishing in limbo. I believe that if no SES member's bonus is tied to FOJA requests getting out of "limbo", then these requests will continue to languish.

Currently MD 3.1 does not address "exceptional" FOIA's except as follows: 18 The third track is for requests that because of the.-r unusual volume or other complexity ore expected to take more than 30 working days to complete (for example, requests involving several offices, regional offices, another agency's records, classified records requiring declassification review, records from businesses that ore required to be referred to the submitter for their proprietary review prior to disclosure, records in large volumes which require detailed review because of the sensitive nature of the records such as investigative records or legal opinions and recordings of internal deliberations of agency staff).

11 Management Directive 3.1. Directive Handbook 3.1, ILA.16.(bHiiil, pp. 9-10 (ML110050002) 33

Nowhere in MD 3.1 is it specified how this "third track" of FOIA request is to be handled to ensure we meet the requirements of FOIA case law. MD 3.1 needs guidance added th~t is based on FOIA case law and that provides direction to the staff as to how to address "exceptional" FOIA requests which physically cannot be answered within the times limits prescribed in the Freedom of Information Act and in our own regulations (10 CFR § 9.25(a)(b}).

Once MD 3.1 has been revised, a computer based training module should be developed which trains the staff on the Freedom of Information Act, 10 CFR § 9.25, the President's 2009-01-21 FOIA memo, the Attorney General's 2009-03-19 FOIA memo, and relevant FOIA case law (e.g. the 2013-04-02 CREW v.

FEC case'9 J. This training need not be required of all NRC staff, but should be required for any staff member who has been assigned the responsibility of responding to a FOIA request and who has not taken the training within the previous 12 months (or whatever periodicity is deemed appropriate).

7.5. Ensure FOIA Appeals are Adequately Addressed in MD 3.1 and in SES Bonus Structure Essentially a FOIA appeal is a member of the public complaining to the agency senior leadership that the staff is not following federal law. Such a complaint should be taken seriously and should be addressed at the highest levels of the agency. This is why 10 CFR § 9.29 lists the various appeal authorities as the SECY, the EDO, the Inspector General, and the General Counsel.

By both the Freedom of Information Act and our own regulations, administrative appeals are to be answered within 20 working days. Since these appeals are rare (typically there are just a few a month),

it is not a burden for the senior leaden.hip to be directly involved in ensuring that appeals addressed to them are being appropriately answered within our legally required time limits.

The SES bonus structure for the appeal authorities should include a penalty for FOIA appeals which are not answered within the legally prescribed time limits_

Remember that an appeal is from a member of the public who does not believe the agency staff has followed federal law with regards to the Freedom of Information Act. This is more serious than a mere request for information under the FOIA, and the agency should take whatever action is necessary to address this complaint within the 20 working day requlrement.

MD 3.1 currently does not state anything regarding "lack of response" appeals (i.e. appeals filed under 10 CFR § 9.250)). MO 3.1 needs to specifically address these types of appeals. When a "lack of response" appeal is received, the NRC senior leadership should, within 20 working days, determine why the agency has not responded to the requester and provide the requester the reason for the agency's lack of timely response. It is unconscionable to have a regulation addressing the lack of an agency response (i.e. 10 CFR § 9.25(j)} and then to allow complaints under that regulation to be similarly ignored as was done with FOIA 2013-00lOA and 2013-0015A.

7.6. Electronically Process Revisions Using ADOBE MD 3.1 should be revised to allow the electronic processing of redactions using ADOBE. The ADOBE Professional software allows for a two-step redaction process:

1" US Circuit Court of Appeals, Case #12-S004: http://www.fec.gov/law/litigation/crew ac order.pdf 34

• The marking of the document for redaction along with the justification text

• The implementation of the redactions MD 3.1 should allow staff submitting documents to the FOIA office to mark the redactions using the redaction feature in ADOBE Professional. The reviewing staff (e.g. the FOIA staff or OGC staff) should then (1) remove any unwarranted redactions, (2) add any additional redactions, and (3) apply the remaining redactions to the document.

Allowing staff familiar with the ADOBE Professional redaction tool to use that tool will greatly improve their efficiency in responding to large FOIA requests. Given technological advances to document software, the method currently required by MD 3.1 is wasteful of government resources.

I look forward to discussing these matters with you on Tuesday.

V/r, Larry Lawrence S. Criscione, PE Reliability & Risk Engineer RES/ORA/HFRB 35

Criscione, Lawrence From: Lawrence Criscione < lscriscione@hotmai\.com >

Sent: Mo nday. January 06. 2014 12:22 AM To:

Cc:

Subject:

Input regarding Audit of NRC's FOIA Process-FOIA 2012-0106, 2012-0127, 2012-0126, 2012-0321, 2012-0325, 2013-0008, 2013-0013,2013-0127,2013-0128.2013-009A, 2013-0l0A.2013-0lSA, 2013-0213, 2013-0239 Attachments: Criscione Input to OIG FOIA Audit.pdf l(b)(6) !and all, Attached is my input to the OIG's audit of the NRC's FOIA process.

The attached letter is long (JS pages) hecause I wanted to provide enough information to support my concerns.

My concerns are:

I. MD 12.6 is woefully out of date ( 1999) and in need of a major revision. Revision to MD 12.6 should require (I} portion marking at 1he paragraph level. (2} justification for any portions not publicly releascahle, and (3) contact information for branch/individual making determination. There are some who will say SU'\'SI/CUI arc separate from FOIA. Although true (i.e. they are separate issues) fix ing" the ~RC's process for marking Cl'.I is intimately intertwined with "setting up for success" the ~RC staff who arc tasked with efficiently responding lo a FOIA request within the legally required time limits.

2. MD 13.1 docs not adequately provide guidance for ( I} determining "exceptional circumstances" with regard lo rOIA requests which cannot be answered within the legally required time limits, (2) guiding the FOIA staff and technical staff on how to respond to large FOi As meeting "exceptional circumstances", and 0) responding to "Lack of Response" appeals.

3. 10 lTR § 9.2l(c} should include formal correspondence with licensees. Expanding IO CFR § 9.2l(c) is in line with the Attorney General's 2009-03-19 FOIA memo and will decrease the hurden on '\'RC staff responding to FOIA requests.

4. FOIA 201 3-0008 was processed within 12 working days but the documents were not released for another 11 months (until required as pan of an agreement pertaining to a lawsuit)- For at least 6 months, the highest levels of the \:RC were aware that FOIA 20 1'.l-0008 was grossly overdue yet did not take action to get the requested document released (although three responses were issued which included related documents yet excluded the specifically requested document). To me, this issue shows that FOIA time commitments were ignored by :--;Re management, indicating--to mc--that '\'RC management does not view it important to meet its legal requirements under the Freedom of Information Act.

5. The SES bonus structure does not provide adequate incent ives to ensure aging FOIA requests arc addressed in a timely manner (i.e. once a request is past 30 working days old, there is no longer any "penalty" for allowing it to indefinitely age).

6. The SES bonus structure docs not provide adequate incentives to ensure FOIA Appeals are addressed in a timely manner. 1-"0IA Appeals are significantly different than FOIA requests. FOIA requests arc merely citizens requesting infonnation from their government. FOIA Appeals are citizens complaining to the agency management that the agency has not followed federal law (i.e. the Freedom of Information Act). FOJA appeals should be tracked and weighted separately from FOIA requests.

7. FOIA 2012-0321 was not adequately processed. The emails and correspondence requested were processed within a few months yet after a year no documents had been released.

8. FOIA 2012-0325 was not adequately processed. A large amount of material was released after four months, but after 11 months no further releases have been made.

9. FOIA 2012-0127 took unacceptably long to process ( 11 months for 6 documents). FOIA 2012-0128 and 2013-0213 are taking unacceptably long to process. The reason these FOi A's are taking so long is because the NRC does an inadequate job of marking SUNS! documents (e.g. SUNS! documents are not portion marked, do not require justification for the markings, and do not provide any contact infonnation regarding the branch/individual who made the SUNSI determination and can thus answer questions about it).

I0. The NRC is abusing IO CFR § 2.390. This regulation is for allowing licensees to petition the NRC for withholding of proprietary information; nowhere in this regulation does it authorize NRR to direct the licensee to request IO CFR § 2.390 withholding in order to justity the NRC's withholding of information. The NRC should not be directing licensees to resubmit documents with IO CFR § 2.390 withholding requested when the licensee clearly intended those documents to be public documents (see FOIA 2013-009A).

I I . FOi A 2013-0128 and 20 I 3-0239 demonstrate the NRC making obtuse legal arguments to justify nonsensical withholdings.

12. FOIA 2012-0 I 06, 2013-0 I 09, 20 I 3-006A, 201 3-0239 concern the Gl-204 Screening Analysis Report. This report was written by RES to be a public document but has been withheld under claims that other agencies require information in it to be redacted. These claims do not have merit and do not justify its continued withholding.

I look forward to speaking with you on Tuesday.

V/r, Larry 573-230-3959 6

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From f.,..tb=)<...,.

To: LSCriscione@gmail.com Date: Fri, 3 Jan 2014 14:51:39 -0500

Subject:

RE: Request for Interview Sounds good. A meeting request for January 7, 2014, from 2-3pm EST time will follow shortly.

We will call you at your 573-230-3959 number unless there is another number you prefer.

Rob From: Lawrence Criscione [1]

Sent: Friday, January 03, 2014 2:47 PM 2

To~(b)(6)

Subject:

RE: Request for Interview I am available anytime next week, including the suggested time (Jan 7, 2-3prn EST).

I have been preparing a summary of my concerns regarding the FOIA process and suggestions for its improvements. I will send it along to you, hopefully by the end of today.

I look forward to speaking with you, Larry 573-230-3959 Fro~ _<b_)<6_l _ _ _ _ _ _ _ __

To: LSCriscione@hotrnail.com ccp >(6J Date: Thu, 2 Jan 2014 15:12 :45 -0500

Subject:

Request for Interview Mr. Criscione.

I was wondering if you are available Tuesday, January 7tt1 from 2:00pm - 3:00pm EST for a telephone interview to discuss NRC's FOIA process?

If so, I will send out a meeting request. If you are unavailable, please suggest an alternate time.

Thanks.

Office of the Inspector General 3

U.S. Nuclear Regulatory Commission 11555 Rockville Pike, Rockville, MD 20852