ML14339A594

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Freedom of Information Act Request on Behalf of San Luis Obispo Mothers for Peace
ML14339A594
Person / Time
Site: Diablo Canyon  Pacific Gas & Electric icon.png
Issue date: 08/05/2014
From: Curran D J
Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP
To:
Office of Information Services
References
FOIA/PA-2014-0372, FOIA/PA-2015-0001A
Download: ML14339A594 (17)
v • d • e


Text

Harmon, Curran, Spielberg + Eisenberg LLP 1726 M Street NW. Suite 600 202.328.3500 1 officeWashirgton DC 20036-4523 202.328.6918 I faxH 4 .C,! S9 .HarmonCurran con,August 5, 2014 aNo. PDate ReedNRC FOIA/PA OfficerU.S. Nuclear Regulatory Commission -P8'ait:Mailstop T-5 F09 P- f Cas 106f..Washington, DC 20555-0001By e-mail to: F01 ,\.rrLorcc a'frc.IAO

SUBJECT:

Freedom of Information Act Request

Dear NRC FOIA/PA Officer:

On behalf of San Luis Obispo Mothers for Peace ("SLOMFP"), and pursuant to the Freedom ofInformation Act ("FOIA"), 5 U.S.C. § 552 et seq., I am writing to request you to release thefollowing documents:1. PG&E's October 15, 2002, answers to NRC Staff's August 29, 2002 Request forAdditional Information ("RAI")related to the U.S. Nuclear Regulatory Commission 's("NRC's ") licensing proceeding for an Independent Spent Fuel Storage Installation("ISFSI") on the site of the Diablo Canyon nuclear power plant ("DCNPP ") (DocketNo. 72-26), to the extent they respond to questions 2-12, 2-13. 2-14, 2-15, 2-16, 2-17, 2-18, and 2-19 of the RAL These documents are:ML022950396; ML022950439; ML022960045; ML022960173; ML022960188;ML022970587; ML023010123; ML023010152; ML023250166.'2. Correspondence from management of the Center for Nuclear Waste Regulatory Analyses("CNWRA "), written between March 17, 2004 and February 27, 2006, regarding aNovember 22, 2003, report by Dr. Robert L. Sewell entitled "A Preliminary NumericalStudy of the Hazard from Local Landslide Tsunami Scenarios at the Diablo Canyon Sitein Central California" ("Sewell Report"). This correspondence is referred to as followsin a Memorandum from E. William Brach, NMSS to Michael E. Mayfield, NRR re"Disposition of Draft Report Entitled, "A Preliminary Numerical Study of the Hazardfrom Local Landslide Tsunami Scenarios at the Diablo Canyon Site in CentralCalifornia" (Feb. 27, 2006) ("2/27/06 Brach Memo") (ML060460441):Subsequent correspondence from CNWRA management has confirmed that thedraft report has not been accepted by CNWRA and has not gone through theCNWRA quality assurance process. Thus, the draft report's technical basis is notsupported by CNWRA.An index of these documents provided by the NRC's Public Document Room ("PDR") isincluded as Attachment I to this FOIA Request.

Harmon, Curran, Spielberg + Eisenberg LLP NRC FOIA OfficerH' "August 5, 2014,C! .C Page 2 of 83. Memorandum from John Moninger, NMSS to NRR (with copy to RES) transmitting draftreport entitled "A Preliminary Numerical Study of the Hazard from Local LandslideTsunami Scenarios at the Diablo Canyon Site in Central California" (Feb. 3, 2005). Therequested document is referred to in the 2/27/06 Brach Memo. It is also referred to in aMemorandum from James R. Hall, NMSS, to Brian E. Thomas, NMSS, re: Summary ofInternal Meeting with NRR and RES to Discuss Contractor Report on Tsunami HazardsAnalysis (May 5, 2005) (ML051290085). Finally, it is mentioned in an e-mail fromNilesh Chokshi to Patrick Hilland and Joseph Glitter re: Request to Re-open my EarlierTsunami Assessment Recommendations (March 23, 2011) (MLI 318A 100).4. Memorandum (or other correspondence) from the Seismic Issues Technical AdvisoryGroup (SITAG) to Michele G. Evans (Nov. 17, 2005). According to a Memorandum fromAndrew J. Murphy, SITAG, to Michele G. Evans, NRR (Jan. 17, 2006) ("1/17/06Murphy Memo") (ML060170114), the requested document contains SITAG's evaluationof the Sewell Report.Please note that the requested November 17, 2005 SITAG memorandum is distinct fromthe "updated" version of that memorandum attached to the Murphy Memo(ML060170114).5. All records of interactions between SITAG and NRC managers, including Michele G.Evans regarding the Nov. 17, 2005 evaluation described in par. 5 above. Theseinteractions are referred to in a Memorandum from Andrew J. Murphy, SITAG, toMichele G. Evans, NRR (Jan. 17, 2006) ("1/17/06 Murphy Memo") (ML060170114),which states that "SITAG has interacted with you and other NRC managers andidentified the need to update the [Nov. 17, 2005] evaluation." The interactions inquestion took place between Nov. 17, 2005 and Jan. 17, 2006.6. All documents reflecting consideration by NRC of the Sewell Report in licensingproceedings or other safety determinations or assessments for the Diablo Nuclear PowerPlant and/or ISFSI, as reflected in the following statements made in an e-mail messagefrom Jessica Kratchman, Project Manager for the Japan Lessons-Learned ProjectDirectorate, to David Weisman, re: REPLY. Tsunami threat and Diablo Canyon vs NRCreport (June 12, 2014) ("Kratchman E-mail') :Diablo Canyon has been deemed safe to operate based on our currentunderstanding of potential external hazards for the site and the design andconstruction of the facility. This determination considered input from a largecollection of research and licensing efforts in addition to the Sewell report.Please be assured that the current safety assessment has considered not only the2 A copy of the Kratchman E-mail is included as Attachment 2 to this FOIA Request.

Harmon, Curran, Spialberg + Eisenberg LLP NRC FOIA OfficeryHC August 5, 2014Page 3 of 8Sewell report but research and input from numerous sources and experts.However, [the Sewell Report], even in its draft form, was appropriatelyconsidered during NRC licensing reviews for Diablo Canyon.7. All documents which describe the establishment of the "Japan FOJA Task Force" asdescribed in the Kratchman E-mail, and its relationship to the Japan Lessons-LearnedProject Directorate. In particular, we request that you provide a copy of the charter ortasking memorandum for the Japan FOIA Task Force, a list of its members and theirtitles, and any document that describes the relationship between the Task Force and theDirectorate.8. All documents which have evaluated the usefulness of the Sewell Report for regulatorypurposes since the NRR dropped it from further consideration in February 2006. SeeMemorandum from Michael E. Mayfield, NRR, to E. William Brach, NMSS, re:Disposition of Draft Report Entitled "A Preliminary Numerical Study of the Hazard fromLocal Landslide Tsunami Scenarios at the Diablo Canyon Site in Central California,Summary Report" at 2 (Feb. 27, 2006) ("Mayfield Memorandum") (ML06046044 1).This request doesnot include documents disclosed in response to FOIA/PA-2011-0119.9. All correspondence between the NRC and any non-NRC party or parties (other thanCNWRA) regarding the Sewell Report.10. All correspondence between CNWRA and any non-CNWRA party or parties (other thanNRC) regarding the Sewell Report.If you decide to withhold any portion of the requested documents, please justify your decisionand release any segregable information, as required by 10 C.F.R. §9.19(b).i1. DEFINITION OF RECORDSFor purposes of this request, the term "record" means: (I) any written, printed, or typed materialof any kind, including without limitation all correspondence, memoranda, notes, messages,letters, cards, telegrams, teletypes, facsimiles, papers, forms, records, telephone messages,diaries, schedules, calendars, chronological data, minutes, books, reports, charts, lists, ledgers,invoices, worksheets, receipts, returns, computer printouts, printed matter, prospectuses,statements, checks, statistics, surveys, affidavits, contracts, agreements, transcripts, magazines ornewspaper articles or press releases; (2) any electronically, magnetically, or mechanically storedmaterial of any kind, including without limitation all electronic mail or e-mail, meaning anyelectronically transmitted text or graphic communication created upon and transmitted orreceived by any computer or other electronic device, and all materials stored on compact disk,computer disk, diskette, hard drive, server, or tape; (3) any audio, aural, visual, or video records, Harmon, Curran, Spielberg + Eisenberg LLP NRC FOIA Officer.-11C SO' August 5,2014A_'%-._ _' Page 4 of 8recordings, or representations of any kind, including without limitation all cassette tapes,compact disks, digital video disks, microfiche, microfilm, motion pictures, pictures, photographs,or videotapes; (4) any graphic materials and data compilations from which information can beobtained; (5) any materials using other means of preserving thought or expression; and (6) anytangible things from which data or information can be obtained, processed, recorded, ortranscribed. The term "record" also includes any drafts, alterations, amendments, changes, ormodifications of or to any of the foregoing.If it is your position that records exist that are responsive to this request, but that those records(or portions of those records) are exempt from disclosure pursuant to 10 C.F.R. § 9.17, pleaseidentify the records that are being withheld and state the basis for the denial for each recordbeing withheld. In addition, please provide the non-exempt portions of the records.III. REQUEST FOR WAIVER OF FEESSLOMFP hereby requests that all fees in connection with this FOIA Request be waived inaccordance with 10 C.F.R. §§ 9.39(a) and 9.4 1(c). As provided in § 9.4 1(c), the NRC must:waive or reduce fees, without further specific information from the requester if, frominformation provided with the request for agency records made under § 9.23(b), it candetermine that disclosure of the information in the agency records is in the public interestbecause it is likely to contribute significantly to public understanding of the operations oractivities of the Federal Government and is not primarily in the commercial interest of therequester.SLOMFP addresses the NRC's eight requirements for a fee waiver below:Factor (1): Describe the purpose for which the requester intends to use the requestedinformation.SLOMFP's purpose in making this FOIA request is to educate its members and the generalpublic regarding the adequacy of the NRC's response to the risk of a tsunami to the safety of theDiablo Canyon nuclear power plant. The tsunami risk was evaluated in 2003 by Dr. Robert L.Sewell, a consultant to the NRC, in the licensing proceeding for the Diablo Canyon ISFSI.While Dr. Sewell's report has not been released publicly, the NRC has described its conclusionsas follows: "the DCNPP design basis wave heights may not be conservative, and that moredetailed probabilistic tsunami hazard analysis should be performed to evaluate the DCNPPsafety." Staff Evaluation of"A Preliminary Numerical Study of the Hazard from LocalLandslide Tsunami Scenarios at the Diablo Canyon Site in Central California, Summary Report(Draft) ("SITAG Evaluation"), Enclosure to Murphy Memo.3 Such a conclusion raises veryserious safety and environmental concerns for members of the public who live near DCNPP.3 See also par. 5 above.

Harmon, Curran, Spielberg + Eiaenberg LLP NRC FOIA OfficerH C SE" August 5, 2014Page 5 of 8Based on the Kratchman E-mail, it appears that the NRC Staff may have considered the SewellReport in a number of licensing and other safety reviews for DCNPP. Nevertheless, some NRCdocuments indicate that the agency considered it to be inadequate for regulatory purposes anddropped it from consideration. For instance, the 2006 SITAG Evaluation disparages the SewellReport, stating that its results "have significant uncertainties, may not be realistic, and cannot berelied on for making conclusions on tsunami hazard for the DCNPP site." Id. at 3. A subsequentmemorandum states that the report was not accepted by the originating agency (the CNWRA),that it is "speculative," and that the office of Nuclear Reactor Regulation decided to terminate itsconsideration. Mayfield Memorandum at 2.SLOMFP seeks the requested documents in order to illuminate, for its members and the public,the source of this discrepancy. SLOMFP believes the public has a strong interest in knowingexactly what safety significance the NRC attributes to the Sewell Report and whether the NRChas, as it claims, considered the report in its safety determinations for DCNPP. And if the NRChas indeed considered the Sewell Report, the public has a strong interest in knowing when andwhy the NRC changed its previous opinion of the document as useless for regulatory purposes.In addition, SLOMFP seeks additional information on the basis for NRC's decision to withholdthe Sewell Report from public disclosure. For instance, SLOMFP requests any documents thatwould show the Sewell Report has been shared with outside parties, which would render it non-exempt as a pre-decisional document.Factor (2): Explain the extent to which the requester will extract and analyze thesubstantive content of the agency records.SLOMFP's members and their undersigned attorney will carefully analyze the requesteddocuments to evaluate the question of how or whether Dr. Sewell's report has been used toevaluate the safety of DCNPP and/or the ISFSI. In addition, SLOMFP will extract and analyzethe requested information to evaluate the extent to which the NRC's technical understanding oftsunami risks has changed since receiving Dr. Sewell's report in 2003.Factor (3): Describe the nature of the specific activity or research in which the agencyrecords will be used and the specific qualifications the requester possesses to utilizeinformation for the intended use in such a way that it will contribute to the publicunderstanding.SLOMFP will post its analysis of the NRC's use of the Sewell Report on its website,\ 'ý cacc.oir and on its FaceBook page, which has 1,770 "likes."In addition to posting information on its website, SLOMFP communicates with its members andthe general public in a variety of other ways:a) SLOMFP has 1,326 recipients on its mailing list, comprised of households requestingan annual mailing that updates the readers on issues and invites financial contributions.

Harmon, Curran, Spielberg + Eisenberg LLP NRC FOIA Officer$ -oE: August 5, 2014Page 6 of 8b) SLOMFP sends two or three email alerts a week to 400 individuals and organizationsregarding safety and environmental concerns raised by Diablo Canyon and other reactors.c) SLOMFP has a weekly reach of over a thousand people on social media. Facebookreadership totaled 1,400 during the week 7/29/2014-8/4/2014. SLOMFP has 399followers on Twitter.d) SLOMFP frequently has opinion pieces and letters to the editor printed in local newsmedia, specifically the San Luis Obispo Tribune daily newspaper and New Times, aweekly newspaper.e) Spokesperson Jane Swanson does interviews with King Harris on AM 920 every sixweeks.f) Spokespersons Jane Swanson and Linda Seeley participate in speaking engagementsabout the hazards of Diablo Canyon in San Luis Obispo and Santa Barbara Countiesapproximately once a month. Among the groups they speak to are: an annual summerclass of young adults at University of California at Santa Barbara, classes at Cal Poly StateUniversity in San Luis Obispo, local social action groups within churches and politicalorganizations, and supporters of SLOMFP who attend educational forums sponsored bySLOMFP. SLOMFP Spokesperson Jane Swanson participated in a debate about DiabloCanyon on May 4, 2014. Spokesperson Linda Seeley was interviewed by the Cal PolyMustang on issues surrounding Diablo Canyon on July 28, 2014. Spokesperson LindaSeeley was interviewed on "WomenSpaces" radio show in San Jose, CA on July 29, 2014.No compensation was received for any of these appearances.The qualifications of SLOMFP and its undersigned attorney to analyze the requested documentsis demonstrated by their long and successful track record of using technical information aboutthe Diablo Canyon reactors to advocate for public safety and environmental protection in theoperation of the Diablo Canyon reactors. SLOMFP has been an active intervenor in NRClicensing cases for Diablo Canyon since 1973, including appeals of adverse decisions to the U.S.Court of Appeals. SLOMFP's undersigned attorney has represented the organization in NRCand court proceedings involving Diablo Canyon for over 20 years. SLOMFP's cases, whichhave covered highly complex technical and legal issues, include San Luis Obispo Mothers forPeace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984); San Luis Obispo Mothers for Peace v. NRC, 789F.2d 26, (D.C. Cir.) (en banc); and San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016(9th Cir. 2006). These cases have set precedents and have raised general public awareness aboutnuclear regulation in the United States.SLOMFP also has a long history of educating the public through its website and the news media.The organization is well respected in the community for the accuracy and comprehensiveness ofits analyses of nuclear safety and environmental issues raised by DCNPP.

Harmon, Curran, Spielberg + Eisenberg LLP NRC FOIA OfficerH.C.S-" August 5, 2014Page 7 of 8Factor (4): Describe the likely impact on the public's understanding of the subject ascompared to the level of public understanding of the subject before disclosure.As discussed above with respect to Factor 1, the Sewell Report appears to raise very serioussafety and environmental concerns about the risks of a tsunami to the DCNPP. Yet, the NRC hasnot taken a consistent approach to the information presented by Dr. Sewell. Does the NRCconsider Dr. Sewell's report to be unreliable or not? Is the NRC attending to Dr. Sewell'sconcerns or not? SLOMFP believes that the documents it has requested will help to answer thesequestions and thereby contribute significantly to the public's understanding of the NRC'sperformance with respect to the regulation of safety at DCNPP.Factor (5): Describe the size and nature of the public audience to whose understanding acontribution will be made.SLOMFP's primary target audience is the population of San Luis Obispo and Santa BarbaraCounties, which totals over 700,000 people and which would be in the direct line of a radioactiverelease in the event of an accident at Diablo Canyon. In addition, SLOMFP reaches out toCalifornia residents as far away as the Los Angeles basin, with a population of over II million.This population also would be affected by an accidental release of radiation at Diablo Canyon.Finally, SLOMFP shares information with environmental organizations around the country. Asdiscussed below with respect to Factor 7, SLOMFP does not charge for the information itprovides, and therefore its distribution is.wide.Factor (6): Describe the intended means of dissemination to the general public:The means by which SLOMFP intends to disseminate the information yielded by its FOIArequest are described above with respect to Factor (3). In addition, if the requested documentsreveal that the NRC has not attended adequately to the risk of a tsunami to the DCNPP,SLOMFP will evaluate whether to raise the issue in the license renewal proceeding.Factor (7): Indicate if public access to information will be provided free of charge orprovided for an access fee or public education.Public access to the requested information will be provided completely free of charge.Factor (8): Describe any commercial or private interest the requester or any other partyhas in the agency records sought.SLOMFP is a non-profit organization whose sole purpose in requesting the documents is toeducate itself, its members, and the general public regarding the risks of spent fuel storage and* NRC's regulatory process. SLOMFP plans to publish the requested information incorrespondence with its members and supporters and to post the information on its website,mothersforpeace.org. The requested materials will not be used for SLOMFP's commercial useor gain.

Harmon, Curran, Spielberg + Eisenberg LLP NRC FOIA Officer.H C".. E August 5, 2014Page 8 of 8Accordingly, we request that you waive all fees for locating and duplicating the requestedrecords. If, however, a waiver is not granted, then please advise me of the amount of anyproposed search, review, and reproduction charges before those activities are carried out.Please respond to this FOIA Request within 20 business days, as provided by 5 U.S.C. §552(a)(6)(A)(i). If you have any questions regarding this request, please contact me at 202-328-3500.Thank you very much for your consideration.Sincerely,!/SDiane Currandc utnsl'to rharSLloMFc Prrar, curnCounsel to SLOMFP ADAMS Documents as of 07/14/2014 08:34:08 AMPage 1 of 2Accession NumberCase/Reference NumberDocument TitleDocument DateAvailabilityDocket NumberML022950396DIL-02-009TAC L23399Response to NRC Request for Additional Information for Diablo Canyon Independent Spent Fuel StorageInstallation Application (TAC No.L23399).10/15/02 12:00AMNon-Publicly Available050002750500032307200026Accession Number ML022950439Case/Reference NumberDocument TitleDocument DaleAvailabilityDocket Number-nrDIL-02-009TAC L23399Response to NRC Request for Additional Information for Diablo Canyon Independent Spent Fuel StorageInstallation Application (TAC No. L23399) -Figure 110/15/02 12:00AMNon-Publicly Available050002750500032307200026AccCase/RefAceCase/Refcession Number ML022960045ference Number DIL-02-009TAC L23399Document Title Response to NRC Request for Additional Information for Diablo Canyon Independent Spent Fuel StorageInstallation Application (TAC No. L23399), Appendix EPad-TH to Calculation PGE-009-CALC-006.Document Date 10/15/02 12:00AMAvailability Non-Publicly AvailableDocket Number 050002750500032307200026cession Number ML022960173erence Number DIL.02-009TAC L23399Document Title Response to NRC Request for Additional Information for Diablo Canyon Independent Spent Fuel StorageInstallation Application (TAC No. L23399), Appendix SH-Loads to Calculation PGE-009-CALC-006 -Appendix FTPad-SH.Document Date 10/15/02 12:00AMAvailability Non-Publicly AvailableDocket Number 050002750500032307200026cession Number ML022960188terence Number DIL-02-009Document Title Response to NRC Request for Additional Information for Diablo Canyon Independent Spent Fuel StorageInstallation Application (TAC No. L23399), Attachments 6-1 1.Document Date 10/15/02 12:00AMAvailability Non-Publicly AvailableDocket Number 050002750500032307200026AccCase/RetAccession NumberCase/Reference NumberDocument TitleDocument DateAvailabilityDocket NumberML022970587-nrDIL-02-009TAC L23399Response to NRC Request for Additional Information for Diablo Canyon Independent Spent Fuel StorageInstallation Application (TAC No. L23399), Attachment 18-2 -Figure RAI 5-11-5.10/15/02 12:00AMNon-Publicly Available050002750500032307200026Accession Number ML023010123 ADAMS Documents as of 07114/2014 08:34:08 AM Page 1 of 2Case/Reference Number DIL-02-009TAC L23399Document Title Response to NRC Request for Additional Information for Diablo Canyon Independent Spent Fuel StorageInstallation Application (TAC No. L23399), Attachment 5-2.Document Date 10/15/02 12:00AMAvailability Non-Publicly AvailableDocket Number 050002750500032307200026AcCase/Refcession Numbei ML023010152ference Number DIL-02-009TAC L23399Document Title Response to NRC Request for Additional Information for Diablo Canyon Independent Spent Fuel StorageInstallation Application (TAC No. L23399), Appendix TPad-TH -Calculation PGE-009-CALC-006 -Appendix STPad-TH.Document Date 10/15/02 12:00AMAvailability Non-Publicly AvailableDocket Number 050002750500032307200026Accession NumberCase/Reference NumberDocument TitleDocument DateAvailabilityDocket NumberML023250166DIL-02-009TAC L23399Response to NRC Request for Additional Information for Diablo Canyon Independent Spent Fuel StorageInstallation Application (TAC No. L23399), Attachments 2-5 1.10/15/02 12:00AMNon-Publicly Available050002750500032307200026 From: JLDPublic Resource <JLD Public.Resourceanrc.,ov>

Subject:

REPLY: Tsunami threat and Diablo Canyon vs NRC reportDate: June 12, 2014 12:17:53 PM PDTTo: "davidiayweisman(cqimail.corn" <davidiayweismana)cgmai1.com>Mr. Weisman,This email is in response to your inquiry to Mary Woollen in the NRC'sOffice of the Chairman on May 14, 2014, subject: "unresolved tsunamithreat at Diablo Canyon vs redacted NRC reports".The NRC is working diligently to ensure the safe operation of nuclearpower facilities from hazards such as the tsunami that struck theFukushima Daiichi Power Station on March 11, 2011. Diablo Canyon hasbeen deemed safe to operate based on our current understanding ofpotential external hazards for the site and the design and construction ofthe facility. This determination considered input from a large collection ofresearch and licensing efforts in addition to the Sewell report. The NearTerm Task Force Report (ADAMS accession number ML1 11861807)provided the NRC confidence to conclude that an accident withconsequences similar to the Fukushima accident is unlikely to occur in theUS. The NRC further concluded that plant operation and the continuationof licensing activities do not pose an imminent risk to public health andsafety. Until Diablo Canyon completes its flooding hazard re-analysis, itwill continue to fall under this general determination. If the re-analysisidentifies a potentially higher flooding hazard, the licensee will alsopropose any appropriate interim actions for flood hazard mechanisms(e.g., precipitation, storm seiche, tsunami) that exceed the current designbasis. The reevaluated flood hazard report is due March 12, 2015. Pleasebe assured that the current safety assessment has considered not only theSewell report but research and input from numerous sources and experts.As for the FOIA determination for the Sewell report, the NRC previouslydetermined that this document falls under relevant FOIA exemptions fordraft documents. The decision to withhold this document was made by theJapan FOIA Task Force. However, this report, even in its draft form, wasappropriately considered during NRC licensing reviews for Diablo Canyon.Thank you for your interest. If you have any further questions you canreply to this email address or contact me directlyat Jessica. Kratchmana-nrc..qov.Jessica KratchmanProject Manager U.S. Nuclear Regulatory Commission-Japan Lessons-Learned Project Directorate Harmon, Curran, Spielberg + Eisenberg LLP 1 72C M S'rco(.t NW, Suite 600 202.328.3500 1 officeWash.ngtan DC 200"36-4523 202.328.6918 taxH C.,ý SbE .larnoonCurrn.wcorCm f.: o 2M o VA-October 31, 2014 'OatoR1 -.1(3/ .....Mark Satorius, Executive Director for Operations lg: L....A,.l_._U.S. Nuclear Regulatory Commission a.C Y 37i -Washington, D.C. 20555 ........By e-mail to: \Iark.Sat(rius:,a .i:c .ugo

SUBJECT:

Appeal of FOIA/PA 2014-0372

Dear Mr. Satorius:

On behalf of San Luis Obispo Mothers for Peace ("SLOMFP"), and pursuant to the Freedom ofInformation Act ("FOIA") (5 U.S.C. § 552) and applicable Nuclear Regulatory Commission("NRC") regulations 10 C.F.R. §§ 9.29 and 9.6, I hereby appeal NRC's failure to make acomplete or meaningful response to SLOMFP's August 5, 2014, FOIA Request No. FOIA/PA2014-0372. In FOIA/PA 2014-0372, SLOMFP requested ten sets of documents related to a 2010report by Dr. Robert Sewell regarding the risk of a tsunami at the Diablo Canyon nuclear powerplant site.' SLOMFP appeals the NRC's failure to provide virtually any of the documentsrequested in paragraphs 2 through 6 and 8 through 10 of FOIA/PA 2014-0376. SLOMFP doesnot appeal the NRC's response to the first and seventh sets of requested documents, which aredescribed in paragraphs I and 7, respectively.Timeliness of AppealThis FOIA appeal is timely, because it is being filed within 30 days of the date on which theFOIA Office mailed its FOIA Response.NRC regulations allow 30 days from the date of a FOIA response for administrative FOIAappeals. 10 C.F.R. § 9.29(a). In this case, the FOIA Response is dated September 26, 2014.Inexplicably, however, the FOIA Response was not mailed to SLOMFP until October 1, 2014,five days later. (A copy of the postmarked envelope is attached as Exhibit 1.) SLOMFP did notreceive it until October 2.SLOMFP respectfully submits that the timing requirements in the NRC's FOIA regulations arebased on a presumption of fairness and regularity. Thus, for example, NRC counts the time forits own response to a FOIA appeal to start on the date that the FOIA Officer actually receives theappeal. See 10 C.F.R. § 9.29(d). By the same token, it is fair and reasonable to expect that aFOIA requester will be given a full 30 days -- or at least most of that period -- to submit anadministrative FOIA appeal. Where the agency delays sending its FOIA Response, it is only fairto measure the time period from the date the FOIA response was mailed. SLOMFP's appeal is' A copy of SLOMFP's FOIA Request is attached as Exhibit 2.

Harmon, Curran, Spielberg + Eisenberg LLP Mark SatoriusS.. October 31, 2014"t', __o§, Page 2 of 5timely because it is being filed within 30 days of October 1, when the FOIA Response wasmailed. 2Grounds for Appeal of FOIA ResponseDespite SLOMFP's provision of a substantial amount of documentation of the existence andnature of the documents requested in paragraphs 2 through 6 and 8 through 10 (includingADAMS Accession Numbers for all documents cited), the Staff has disclosed virtually none ofthe requested documents. Instead, the Staff has simply sent SLOMFP the publicly availabledocuments cited by SLOMFP in FOIA 2014-0372. It does not appear that the NRC made anyeffort to identify the requested documents, let alone make a determination of whether they weresubject to disclosure under the FOIA. As a result, the FOIA Response amounts to a denial.Paragraph 2. In paragraph 2 of FOIA/PA 2014-0376, SLOMFP requested "[c]orrespondencefrom management of the Center for Nuclear Waste Regulatory Analyses ("CNWRA"), writtenbetween March 17, 2004 and February 27, 2006, regarding a November 22, 2003, report by Dr.Robert L. Sewell entitled "A Preliminary Numerical Study of the Hazard from Local LandslideTsunami Scenarios at the Diablo Canyon Site in Central California" ("Sewell Report")."FOIA/PA 2014-0376 at 1. To assist in the identification of this correspondence, SLOMFPexplained that the requested correspondence is described as follows in an internal NRCmemorandum dated February 27, 2006:Subsequent correspondence from CNWRA management has confirmed that the draftreport has not been accepted by CNWRA and has not gone through the CNWRA qualityassurance process. Thus, the draft report's technical basis is not supported by CNWRA.FOIA/PA 2014-0376 at I (emphasis added) (quoting Memorandum from Michael E. Mayfield,NRR to E. William Brach, NMSS to re "Disposition of Draft Report Entitled, "A PreliminaryNumerical Study of the Hazard from Local Landslide Tsunami Scenarios at the Diablo CanyonSite in Central California" (Feb. 27, 2006) ("2/27/06 Mayfield Memo") (ML06046044 1)).Instead of identifying and disclosing the requested correspondence, the NRC sent SLOMFP acopy of the publicly available 2/27/06 Mayfield Memo quoted in SLOMFP's FOIA request. TheFOIA Response gives no indication that any attempt was made to identify or locate the"[s]ubsequent correspondence" identified in the 2/27/06 Mayfield Memo, let alone make adetermination of whether such documents were subject to disclosure under the FOIA. Thus, theResponse amounts to a denial.Paragraph 3. In paragraph 3 of FOIA/PA 2014-0376, SLOMFP requested the followingdocument: Memorandum from John Moninger, NMSS to NRR (with copy to RES) transmittingdraft report entitled "A Preliminary Numerical Study of the Hazard from Local Landslide2 In the alternative, should you determine this appeal is not timely, for the reasons discussedabove we request that you grant a five-day extension of the time period to correspond with thefive-day delay in the mailing of the agency's FOIA Response.,

Harmon, Curran, Spielberg + Eisenberg LLP Mark Satorius.C .. .October 31, 2014H.C-,C..SoEPage 3 of 5Tsunami Scenarios at the Diablo Canyon Site in Central California" (Feb. 3, 2005). FOIA/PA2014-0376 at 2. In order to assist the FOIA Office in locating this document, SLOMFP pointedout that the requested document is referred to in several publicly available documents: the2/27/06 Mayfield Memo; a Memorandum from James R. Hall, NMSS, to Brian E. Thomas,NMSS, re: Summary of Internal Meeting with NRR and RES to Discuss Contractor Report onTsunami Hazards Analysis (May 5, 2005) (ML051290085) ("5/5/05 Hall Memo"); and an e-mailfrom Nilesh Chokshi to Patrick Hilland and Joseph Guitter re: Request to Re-open my EarlierTsunami Assessment Recommendations (March 23, 2011) (ML1318A100) ("3/23/11 Chokshi E-mail"). FOIA/PA 2014-0376 at 2.Instead of disclosing the requested document, the NRC sent SLOMFP two of the publiclyavailable documents that SLOMFP had already described in its FOIA request: the 2/27/06Mayfield Memo and the 5/5/05 Hall Memo. The FOIA Response gives no indication that anyattempt was made to locate or release the specific document requested by SLOMFP; nor does theFOIA Response state that the document was intentionally withheld. Thus, effectively it is a non-response.Paragraph 4. In paragraph 4 of FOIA/PA 2014-0376, SLOMFP requested the followingdocument: Memorandum (or other correspondence) from the Seismic Issues Technical AdvisoryGroup (SITAG) to Michele G. Evans (Nov. 17, 2005). In order to assist the FOIA Office inlocating this document, SLOMFP pointed out that the requested document is referred to in apublicly available Memorandum from Andrew J. Murphy, SITAG, to Michele G. Evans, NRR(Jan. 17, 2006) ("1/17/06 Murphy Memo") (ML060170114). SLOMFP also pointed out that the1/17/06 Murphy Memo identifies the requested document and asserts that the requesteddocument contains SITAG's evaluation of the Sewell Report. Finally, SLOMFP noted that therequested November 17, 2005 SITAG memorandum is distinct from the "updated" version ofthat memorandum attached to the Murphy Memo.Instead of disclosing the requested document, the NRC sent SLOMFP the publicly available1/17/06 Murphy Memo. The FOIA Response gives no indication that any attempt was made tolocate or release the specific document requested by SLOMFP; nor does the FOIA Responsestate that the document was intentionally withheld. Thus, effectively it constitutes a denial.Paragraph 5. In paragraph 5 of FOIA/PA 2014-0376, SLOMFP requested: "[a]ll records ofinteractions between SITAG and NRC managers, including Michele G. Evans regarding theNov. 17, 2005 evaluation described in par. 5 above.3 FOIA/PA 2014-0376 at 2.SLOMFP pointed out that these interactions are referred to in the 1/17/06 Murphy Memo, whichstates that "SITAG has interacted with you and other NRC managers and identified the need toupdate the [Nov. 17, 2005] evaluation." Id. SLOMFP also pointed out that the interactions inquestion took place between Nov. 17, 2005 and Jan. 17, 2006. Id.Instead of disclosing the requested documents, the NRC sent SLOMFP the publicly available1/17/06 Murphy Memo. The FOIA Response gives no indication that any attempt was made to' The reference to "paragraph 5 above" was erroneous and should have been "paragraph 4."

Harmon, Curran, Spielberg + Eisenberg LLP Mark SatoriusH C.' ,SoPE October 31, 2014Page 4 of 5identify or locate the documents requested by SLOMFP, let alone determine whether they weresubject to disclosure under the FOIA. Thus, effectively it is a non-response.Paragraph 6. In paragraph 6 of FOIA/PA 2014-0376, SLOMFP requested:All documents reflecting consideration by NRC of the Sewell Report in licensingproceedings or other safety determinations or assessments for the Diablo Nuclear PowerPlant and/or ISFSI, as reflected in the following statements made in an e-mail messagefrom Jessica Kratchman, Project Manager for the Japan Lessons-Learned ProjectDirectorate, to David Weisman, re: REPLY: Tsunami threat and Diablo Canyon vs NRCreport (June 12, 2014) ("Kratchman E-mail")4:Diablo Canyon has been deemed safe to operate based on our currentunderstanding of potential external hazards for the site and the design andconstruction of the facility. This determination considered input from alarge collection of research and licensing efforts in addition to the Sewellreport.Please be assured that the current safety assessment has considered notonly the Sewell report but research and input from numerous sources andexperts.However, [the Sewell Report], even in its draft form, was appropriatelyconsidered during NRC licensing reviews for Diablo Canyon.FOIA/PA 2014-0376 at 2. Despite SLOMFP's documentation of NRC Staff assertions that theSewell Report has been considered in certain specific NRC licensing proceedings, the FOIAResponse does not identify or disclose a single document in response to this request. Nor doesthe FOIA Response state that no documents could be located. Thus, effectively it constitutes adenial.Paragraph 8. In paragraph 8 of FOIA/PA 2014-0376, SLOMFP requested "[a]ll documentswhich have evaluated the usefulness of the Sewell Report for regulatory purposes since the NRRdropped it from further consideration in February 2006." FOIA/PA 2014-0376 at 3. In order toassist the FOIA Office in locating these documents, SLOMFP cited the 2/27/06 Mayfield Memo.Id.4 A copy of the Kratchman E-mail was included as an attachment to the FOIA Request.

Harmon, Curran, Spielberg + Eisenberg LLP Mark SatoriusE October 31, 2014Page 5 of 5The FOIA Response gives no indication that any attempt was made to locate documentsresponsive to this aspect of FOIA/PA 2014-0376, let alone determine whether such documentswere subject to disclosure under the FOIA. Thus, effectively it constitutes a denial.Paragraph 9. In paragraph 9 of FOIA/PA 2014-0376, SLOMFP requested "[a]llcorrespondence between the NRC and any non-NRC party or parties (other than CNWRA)regarding the Sewell Report." While some correspondence from the year 2014 is provided in theFOIA Response, the FOIA Response gives no indication as to whether the NRC Staff searchedits files for all other years since the Sewell Report was prepared. Given the lack of evidence thatthe Staff has done any search at all for most of the documents requested in FOIA/PA 2014-0376,we request that you provide a representation as to whether the NRC has, in fact, attempted tolocate documents responsive to paragraph 9 of the FOIA request.Paragraph 10. In paragraph 10 of FOIA/PA 2014-0376, SLOMFP requested "[a]llcorrespondence between CNWRA and any non-CNWRA party or parties (other than NRC)regarding the Sewell Report." No documents at all are provided in response to this aspect ofFOIA/PA 2014-0376, and the FOIA Response does not state whether any attempt was made toidentify or locate the requested documents. Given the lack of evidence that the Staff has doneany search at all for most of the documents requested in FOIA/PA 2014-0376, we request thatyou provide a representation as to whether the NRC has, in fact, attempted to locate documentsresponsive to this part of the FOIA request.Thank you for your consideration. I look forward to your response within 20 working days, asrequired by NRC regulations.Sincerely,/s/Diane CurranCounsel to SLOMFPCc: Nina Argent, FOIA Officer, tbizVia)nrc.go\

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