2013-05-24 – NRC – Jocassee Dam – Inquiry Regarding Overdue FOIA Appeals 2013-004A, 006A, 009A, 010A, 011A & 013A – ML16216A709

2013-05-24-nrc-jocassee-dam-inquiry-regarding-overdue-foia-appeals-2013-004a-006a-009a-010a-011a-013a-ml16216a709

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Criscione, Lawrence
From: Lawrence Criscione
Sent: Friday, May 24, 2013 2:24 AM
To: CHAIRMAN Resource; Bell, Hubert; Doane, Margaret; Vietti-Cook, Annette; Borchardt,
Bill; Ash, Darren; Sealing, Donna; Zobler, Marian; Grodin, Maryann; Lee, David;
Vrahoretis, Susan; FOIA Resource
Cc: Billie Garde; Scott Hodes; Louis Clark; [email protected]; Dave Lochbaum; Jim Riccio;
[email protected]; Tom Zeller; Carl Stelzer; Paul Blanch; Kay Drey; Joe Carson; Sullivan,
Randy; [email protected]; [email protected]; Galloway, Melanie; Ferrante, Fernando;
Mitman, Jeffrey; Perkins, Richard; Bensi, Michelle; Philip, Jacob; Sancaktar, Selim; NTEU,
Chapter 208; [email protected]; [email protected];
[email protected]
Subject: Inquiry Regarding Overdue FOIA Appeals 2013-004A, 006A, 009A, 010A, 011A & 013A
Attachments: Inquiry for FOIA Appeal 2013-004A, 006A, 009A, 010A, 011A and 013A.pdf
Dear Dr. Macfarlane, Mr. Bell, Ms. Doane, Ms. Vietti‐Cook, Mr. Borchardt, Mr. Ash and Ms. Sealing:
The NRC has not been living up to its legal obligations under the Freedom of Information Act. All of you have a
role in ensuring the NRC staff meets it obligations under the FOIA so please do not ignore the attached letter
by merely panning it off to the Inspector General as a so‐called “allegation”. I know you are busy individuals
who have much more on your plate than my concerns, but the Freedom of Information Act is federal law and
this issue is worthy of review by someone on your staff. If you or any of your staff would like to discuss these
matters with me, I would welcome the opportunity to schedule an “open door” meeting.
V/r,
Larry Criscione
573‐230‐3959
“If responsibility is rightfully yours, no evasion, or ignorance, or passing the blame can shift the burden to
someone else.”
From: [email protected]
To: [email protected]; [email protected]; [email protected]
CC: [email protected]; [email protected]; [email protected];
[email protected]; [email protected]; [email protected]; [email protected];
[email protected]; [email protected]
Subject: RE: Inquiry Regarding FOIA Appeals 2013‐004A, 005A, 006A & 007A
Date: Fri, 5 Apr 2013 16:31:01 ‐0400
Donna,
Thank you for the reply below and for the release of ML101730329 earlier today.
I am in the process of looking for an attorney to assist me in my attempts to get the following documents
released in their entirety:
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 ML081640244
 ML090570779
 ML091170104
 ML100780084
 ML101610083
 ML101900305
 ML110740482
 ML111460063
 My 2012‐09‐18 letter to the NRC Chairman
 My 2012‐09‐18 email to the NRC Chairman
The above documents were provided by me to several congressional offices in 2012 in failed attempts to get
the NRC Chairman and our oversight committees interested in questioning the NRC’s effectiveness in
addressing the flooding issues posed by Jocassee Dam. I am currently being investigated by the Office of the
Inspector General to determine if enough evidence exists to indict me for felony charges under 18 USC §1030
for providing the above “Official Use Only” documents to Congressional staffers. It is unfathomable to me that
the NRC’s OIG would threaten me with a felony indictment while engaging in the protected activity of bringing
safety concerns to members of Congress just because the documents delivered were designated “Official Use
Only” by mid‐level staffers in NRR ‐ but that is the position where I currently find myself.
I have significant concerns with the commitment the NRC has to Open Government. I would like the NRC to
formally admit that the documents listed above should be publicly released (formally admit by either releasing
these documents via a FOIA request or voluntarily). If I cannot get the NRC to release the above listed
documents publicly, then I intend to have a federal judge rule that these documents should be publicly
released.
I believe that, to a large extent, the NRC has been “stonewalling” on this issue. I believe that the documents
listed above were inappropriately marked “Official Use Only” and withheld from the public for years. I believe
these documents were then inappropriately delayed and withheld when requested by Paul Koberstein under
FOIA 2012‐0106, FOIA 2012‐0127 and FOIA 2012‐0128. Similarly, I believe that Dave Lochbaum (FOIA 2013‐
0008) and Tom Zeller (FOIA 2013‐0013) have experienced inappropriate delays. Based on your assurance in
the email below that Appeals 2013‐004A, 005A and 006A are in process, I will forgo filing a Federal suit until
May 13, 2013.
I recognize that the FOIA staff has limited control over what is released and its timeliness and I appreciate the
efforts being made by your staff to respond to requests in a timely manner. But I can no longer accept
continued tardiness on the part of the Office of the General Counsel, the Office of Chairman, the Office of
Nuclear Reactor Regulation and the Office of the Inspector General. Open Government is part of our mission
and dedicating resources to review and release documents is something we must do.
Again, based on your assurances below, I am willing to wait until May 13, 2013 before filing a suit in Federal
District Court in accordance with the appeals process outlined in 10 CFR §9.29(c). Please, however, do not
delay in processing my appeals. I currently meet the requirements to continue to federal court (20 working
days) and am agreeing to delay that step in an attempt to be agreeable. Please also attempt to be agreeable
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with me and have my appeals processed as quickly as possible and not arbitrarily wait until May 13th. I am far
from the only person interested in these documents and NRR should have been releasing them all along.
Thank you,
Larry
From: [email protected]
To: [email protected]; [email protected]; [email protected]
CC: [email protected]; [email protected]; [email protected];
[email protected]; [email protected]; [email protected]
Date: Fri, 5 Apr 2013 15:15:36 ‐0400
Subject: RE: Inquiry Regarding FOIA Appeals 2013‐004A, 005A, 006A & 007A
Good Afternoon Mr. Criscione,
I would like to provide you an update on the status of your FOIA appeals:
2013-004A – the records are being re-reviewed by the program office. We anticipate receiving them today or
Monday. Following our review and action the records will be sent to OGC for concurrence.
2013-005A – the records have been re-reviewed by the program office and OGC. Further coordination is
ongoing.
2013-006A – the records have been re-reviewed by the program office and OGC. Further coordination is
ongoing.
2013-007A – Complete. The response was sent to you today.
Please know that the FOIA office is processing your appeals as quickly as possible.
Donna Sealing
From: Lawrence Criscione [mailto:[email protected]]
Sent: Wednesday, April 03, 2013 12:38 AM
To: Borchardt, Bill; Sealing, Donna; Ash, Darren
Cc: Billie Garde; [email protected]; Louis Clark; Kilgore, Linda; McClellan, Gerald
Subject: Inquiry Regarding FOIA Appeals 2013-004A, 005A, 006A & 007A
Please see the attached letter.
It has been 26 working days since the NRC acknowledged receipt of FOIA Appeals 2013‐004A, 2013‐005A,
2013‐006A and 2013‐007A.
To my knowledge, I have neither received a response to these appeals nor received notice that the NRC would
need longer than 20 working days to provide a response.
The next step in the process provided in 10 CFR §9.29(c) is to sue in Federal District Court in order to obtain
the requested documents in an unredacted form.
I intend to retain an attorney and file a lawsuit in Federal District Court. Please confirm for me that the NRC
has neither responded to the FOIA Appeals mentioned above nor provided me notice that you require more
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than 20 working days due to exceptional circumstances. If you have either responded to these FOIA Appeals
or sent me notice of exceptional circumstances, then please provide me those letters via email.
Thank you,
Larry Criscione
573‐230‐3959
Friday, May 24, 2013
1412 Dial Court
Springfield, IL 62704
Allison Macfarlane, Chairman
Hubert Bell, Inspector General
Margaret Doane, General Counsel
Annette Vietti‐Cook, Secretary of the Commission
Bill Borchardt, Executive Director for Operations (EDO)
Darren Ash, Chief Freedom of Information Act Officer
Donna Sealing, FOIA/Privacy Act Officer
United States Nuclear Regulatory Commission
Washington, DC 20555‐0001
SUBJECT: Overdue FOIA Appeals 2013‐004A, 2013‐006A, 2013‐009A, 2013‐010A, 2013‐011A, and
2013‐013A
Dear Dr. Macfarlane, Mr. Bell, Ms. Doane, Ms. Vietti‐Cook, Mr. Borchardt, Mr. Ash and Ms. Sealing:
As of today the NRC is overdue on providing me a response to six separate Freedom of Information Act
appeals encompassing 13 specific documents and, in the case of appeal FOIA 2013‐013A, an as yet
unspecified amount of correspondence between the NRC and other federal agencies.
On February 23, 2013 I submitted appeals for the following FOIA requests:
 FOIA 2013‐0107 regarding ML081640244, ML082750106, ML090570779, ML091380424,
ML092020480
 FOIA 2013‐0109 regarding ML110740482
On February 26, 2013 the NRC assigned the following tracking numbers to my appeals:
 FOIA 2013‐004A for the appeal for FOIA request 2013‐0107
 FOIA 2013‐006A for the appeal for FOIA request 2013‐0109
As of today, I have been waiting over twelve weeks (63 working days) for a response.
On March 29, 2013 I submitted appeals for the following FOIA requests:
 FOIA 2013‐0126 regarding ML111460063, ML100780084, ML101610083, ML101900305
 FOIA 2013‐0127 regarding my 19‐page 2012‐09‐18 letter and email to the NRC Chairman
 FOIA 2013‐0128 regarding ML091170104
That same day, the NRC assigned the following tracking numbers to my appeals:
 FOIA 2013‐009A for the appeal for FOIA request 2013‐0126
 FOIA 2013‐010A for the appeal for FOIA request 2013‐0127
 FOIA 2013‐011A for the appeal for FOIA request 2013‐0128
As of today, I have been waiting nine weeks (45 working days) for a response.
On April 25, 2013 I submitted an appeal for the following FOIA request:
FOIA 2013‐0129 regarding correspondence between the NRC and other federal agencies
concerning the redactions made to the GI‐204 Screening Analysis Report
That same day, the NRC assigned my appeal the following tracking number:
FOIA 2013‐013A for the appeal for FOIA request 2013‐0129
Per 10 CFR §9.29(c) the NRC was supposed to provide me a response within 20 working days. As of
today it has been 21 working days (over four weeks) and yet I have not received a response. Under
exceptional circumstances, the NRC is allowed to take 30 working days to answer my appeals. I have not
heard from the NRC invoking any exceptional circumstances and I do not believe any exceptional
circumstances apply.
On April 5, 2013 I received the following updates from the NRC concerning some of my appeals:
 FOIA 2013‐004A – the records are being re‐reviewed by the program office. We anticipate
receiving them today or Monday [April 8, 2013]. Following our review and action the records will
be sent to OGC for concurrence.
 FOIA 2013‐006A – the records have been re‐reviewed by the program office and the Office of
General Counsel (OGC). Further coordination is ongoing.
It has now been seven weeks (35 working days) since I received the update above, yet I have not had my
appeal answered. Why is the NRC’s Office of the General Counsel stonewalling my attempts to get
records through the FOIA appeals process? It is the job of the NRC’s General Counsel to advise the
agency on following the law, not on how to skirt our legally mandated requirements.
Today, I have reached the point where, under the NRC’s regulations and pursuant to the Freedom of
Information Act, my next step is to sue in federal court to obtain unredacted copies of the following
documents:
 ML081640244, Information Request Pursuant to 10 CFR 50.54(F) Related to External Flooding,
Including Failure of the Jocassee Dam at Oconee Nuclear Station, Units 1, 2, and 3 (TAC Nos.
MD8224, MD8225, and MD8226)
 ML082750106, Oconee, Units 1, 2 and 3 – Response to 10 CFR 50.54(f) Request
 ML090570779, Oconee Nuclear Station Units 1, 2, and 3, Evaluation of Duke Energy Carolinas
September 26, 2008, Response to External Flooding, Including Failure of the Jocassee Dam
 ML091380424, Oconee Nuclear Station, Slides for Closing Meeting May 11, 2009 with Duke on
the Oconee Flooding Issue
 ML092020480, Oconee, Units 1, 2, & 3, Final 60‐Day Response to Reference 2
 ML110740482, Analysis Report for the Proposed Generic Issue on Flooding of Nuclear Power
Plant Sites Following Upstream Dam Failures
 ML111460063, Oconee Nuclear Site, Units 1, 2, and 3. Response to Confirmatory Action Letter
(CAL) 2‐10‐003, dated April 29, 2011
 ML100780084, Generic Failure Rate Evaluation for Jocassee Dam Risk Analysis
 ML101610083, Oconee Nuclear Station, Units 1, 2, and 3, ‐ External Flood Commitments
 ML101900305, Identification of a Generic External Flooding Issue Due to Potential Dam Failures
 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
 ML12312A402, my 19‐page 2012‐09‐18 letter to the NRC Chairman
 my 2012‐09‐18 email to the NRC Chairman
 all written correspondence and the notes of any phone calls or meetings between the NRC and
other federal agencies (DHS, FERC USACE, TVA, and FEMA) concerning the redactions which
were done to ML112430114 to enable it to be released publicly as ML113500495
On April 23, 2013 I met with a FOIA attorney, Scott Hodes, regarding the feasibility of suing the NRC in
order to obtain the release of unredacted versions of the documents above. After reviewing my
appeals, he informed me that I had a strong case in terms of getting the requested documents released
without redactions. But he also informed me that it was unlikely I would be found to be “Entitled” to
recovery of attorney’s fees since I am a mere private citizen. And he estimated his fees at between
$3,000 and $9,000.
Last year, my wife endured $193,000 in medical treatments combating breast cancer. Although I am
only liable for a fraction of that, I am in no way flush with cash. $3,000 is twice the amount my wife
would like to spend on a new sofa – something we’ve put off due to medical bills. $9,000 is the estimate
we received for a new roof. How do you think my wife feels about me spending $3k to $9k on a FOIA
lawsuit in the name of Open Government and the greater public good? How do you think she feels
about me suing the NRC – my employer whom I rely on for healthcare? We have kids in private high
school, college and medical school who require our money. I am sure you have calculated that, like
most Americans, I can ill afford to squander my meager resources on a FOIA lawsuit. And, although I
might have a strong case, since I am unwilling to spend the money pursuing it, you have nothing to fear
from your abuse of federal law. But that does not make it right. You have a duty under the Freedom of
Information Act to promptly either release unredacted versions of the documents requested or to
provide the rationale for the exemptions you have cited as the bases for your redactions.
In September 2012 I provided ten of the documents listed above (ML081640244, ML090570779,
ML091170104, ML100780084, ML101610083, ML101900305, ML110740482, ML111460063, my
19‐page 2012‐09‐18 letter, and my 2012‐09‐18 email to the Chairman) to the US Special Counsel and to
the staffs of about two dozen members of Congress. Since these ten documents are considered by the
NRC to contain “Official Use Only – Security‐Related Information” I am currently being investigated by
the NRC’s Office of the Inspector General to determine if there is evidence which warrants charging me
with a federal felony1 for gathering these documents and releasing them outside of the agency.
1 18 USC § 1030, The Computer Fraud and Abuse Act of 1984 as modified by the USA PATRIOT Act
It should be noted that, according to the NRC, “Official Use Only” is an unofficial administrative marking
that has no legal import, and only serves as an alert that the document should be reviewed before
release in response to a FOIA request or other public disclosure and it is not indicia of any national
security classification.2 Yet the NRC’s Office of the Inspector General is nonetheless seeking who in the
US Congress released the ten “Official Use Only” documents mentioned above to Green Peace.
“Transparency” is not merely a word in the NRC’s mission statement; “Transparency” is a vital ingredient
for the credible regulation of our nation’s national nuclear enterprise. It is important to me that the
NRC recognizes the documents I gave to the Congressional staffers – and which subsequently ended up
on a public web‐page of the Huffington Post – were documents which should have always been available
to the public. It is important to me that the NRC recognizes that our correspondence with licensees
concerning significant safety hazards (e.g. a “Fukushima‐style” accident in South Carolina due to a
catastrophic dam failure) is something the American public should have been made aware of. For that
reason, I have requested these documents under the Freedom of Information Act and, when I received
redacted versions of the documents, I have filed appeals.
The NRC has a duty to ensure truly security sensitive information does not inadvertently get disclosed to
the public. In this letter I am not writing you to appeal your decision to make redactions to the
information you released to me under my FOIA requests. I am writing to you to criticize your
stonewalling. By law, you have a right to exempt from release material which you believe is exempted
under the Freedom of Information Act. And by NRC regulations, I have a right to administratively appeal
your decisions and, within 20 working days, either be provided the documents sought or be notified of
the denial, explaining the exemptions relied upon and how the exemptions apply to the agency records
withheld.3 I am writing you to bring it to your attention that the NRC has not, within the time frame
prescribed by the Freedom of Information Act and our own regulations, provided me an explanation for
the exemptions applied to my Freedom of Information Act requests.
There are some who will claim that the time frames prescribed by the Freedom of Information Act are
unrealistic. There is certainly some truth to this when one considers large FOIA requests. However,
exceptional circumstances do not apply to my FOIA requests or their appeals since the number of
documents requested are within a reasonable scope to be located and reviewed within the 20 working
days prescribed in the Freedom of Information Act. There is no reason that my appeals have not yet
been closed. Consider the following:
FOIA Appeal 2013‐004A: This appeal was submitted 63 working days ago and entails five
documents. Two of the documents (ML081640244 and ML090570779) are correspondence
from the NRC to Duke Energy. ML081640244 was released as ML12363A132 and had partial
redactions in four paragraphs. ML090570779 was released as ML12363A133 and had full or
partial redactions in seven paragraphs.
Two of the documents (ML082750106 and ML092020480) are correspondence from Duke
Energy to the NRC. Although Duke Energy requested that this correspondence be withheld per
10 CFR § 2.390, none of the redactions in these documents pertained to proprietary information
(Exemption 4) but rather all the redactions concerned information thought to be security
2 November 15, 2012 response from the NRC to the Union of Concerned Scientists denying FOIA request
2013‐0034.
3 10 CFR § 9.29
related. Therefore, the decision to release this information on appeal did not need to be reconfirmed
with Duke Energy since it was already determined that none of the redactions
contained proprietary information. ML082750106 was released as ML12363A129 and had five
paragraphs redacted. ML092020480 was released as ML12363A135 and had redactions in three
paragraphs.
One of the documents (ML091380424) is a slide show presented by Duke Energy to the NRC. As
they do with all their correspondence, Duke Energy requested that the slide show be withheld
per 10 CFR § 2.390. And as with the correspondence, the NRC did not find anything in the slide
show that was proprietary. All the exemptions concerned information thought to be security
related (i.e. Exemption 7(f) was the only exemption claimed). ML091380424 was released as
ML12363A134 and had redactions on seven of the slides.
For all the redactions mentioned in the paragraphs above, Exemption 7(f) was claimed. So
appeal FOIA 2013‐004A concerned just one exemption applied to five documents in 25 separate
places. Had the NRC been willing to take the time to review just one redaction every working
day, we would have only taken 25 working days to process my appeal; as of today it has been 62
working days. It is not a lack of manpower or time which has caused FOIA 2013‐004A to be 8
weeks overdue; it is a lack of respect at the NRC for the legal requirements of the Freedom of
Information Act.
FOIA Appeal 2013‐006A: This appeal was submitted 63 working days ago and entails one
document: ML110740482, the initially‐routed version of the Analysis Report for the Proposed
Generic Issue on Flooding of Nuclear Power Plant Sites Following Upstream Dam Failures which
was authored by Richard Perkins, Shelby Bensi, Jake Philip and Selim Sancaktar. The minimallyrevised
final version of this report (ML112430114) was released publicly as ML113500495 in
March 2012 and was released under FOIA request 2012‐0106 to Paul Koberstein on July 2, 2012
as ML12188A239.
Whether or not this report could be released publicly was the subject of multiple meeting in
2011 and 2012. The redacted version released in March 2012 was the result of a decision by
several NRC offices as well as other federal agencies and much thought and analysis was placed
into it. It contains redactions on 15 pages. Assuming it takes a month to arrange a two day
meeting with the concerned parties (e.g. TVA, FERC, DHS, USACE) and then an hour to discuss
each redacted page, the NRC could have easily met our 30 working day time limit for processing
appeal FOIA 2013‐006A. It is not a lack of manpower or time which has caused FOIA 2013‐006A
to be 8 weeks overdue; it is a lack of respect at the NRC for the Freedom of Information Act.
FOIA Appeal 2013‐009A: This appeal was submitted 45 working days ago and entails four
documents (ML111460063, ML100780084, ML101610083, and ML101900305). Two of the
documents (ML111460063 and ML101610083) are correspondence from Duke Energy to the
NRC. As they do with all their correspondence, Duke Energy requested that ML111460063 and
ML101610083 be withheld per 10 CFR § 2.390.
ML111460063 was requested by Paul Koberstein (FOIA 2012‐0128) on January 27, 2012 (333
working days ago), by Jim Riccio (FOIA 2012‐0325) on September 18, 2012 (171 working days
ago), by Carl Stelzer (FOIA 2013‐0116) on February 11, 2013 (73 working days ago) and by
myself on February 12, 2013 (71 working days ago). ML111460063 is only 16 pages long but still
has not yet been reviewed and released. Although Duke Energy needs to review this document
before its release, the NRC has had at least a full quarter to have Duke Energy perform this
review. Why, in over 14 weeks, has the NRC not been able to coordinate with Duke Energy to
review these 16 pages? It is due to a lack of respect at the NRC for the time limits prescribed in
the Freedom of Information Act.
ML101610083 was released as ML13051A896 in response to FOIA 2013‐0113 by Joe Carson. It
had two paragraphs redacted. Both redactions were under Exemption 7(f). As with all the
documents thus far that Duke Energy has claimed to be proprietary, Exemption 4 was not used
for any of the redactions. Appeal 2013‐009A has been open for nine weeks, yet in nine weeks
the NRC has been unable to review these two paragraphs.
One of the documents (ML100780084) is a NRC generic failure rate evaluation for Jocassee Dam
risk analysis prepared by Jim Vail, Fernando Ferrante and Jeff Mitman. This document was
released as ML13039A084 to Paul Blanch under FOIA 2013‐0110. This redacted document
contained only one redaction: a figure detailing a generic cross section of Jocassee Dam. This
same figure was presented in a March 25, 2013 Duke Energy slide show that was made publicly
available on the NRC’s website as ML13084A022. I pointed this out to the NRC in an April 11,
2013 update to FOIA 2013‐009A and, instead of releasing ML100780084 without redactions, the
NRC removed ML13084A022. I take it by NRR’s removal of ML13084A022 that the NRC has
decided the redacted figure from ML100780084 was a necessary redaction of security related
information. Yet, despite this reaffirmation of our redaction (a redaction we felt so confident in
that we removed ML13084A022 from the public domain), FOIA 2013‐009A remains open.
One of the documents (ML101900305) is an internal NRC memo identifying a generic external
flooding issue due to potential dam failures. This document was released to Kay Drey under
FOIA 2013‐0133 as ML13039A086 and contained redactions in two paragraphs. A virtually
identical document was released to Jim Riccio under FOIA 2012‐0325 with no redactions.
So, the processing of appeal FOIA 2013‐009A involves the review of five redacted paragraphs
encompassing just one FOIA exemption (Exemption 7(f)) and 16 pages of an as yet unreviewed
document. Yet in nine weeks the NRC has not yet been able to process FOIA 2013‐009A. It is
not a lack of manpower or time which has caused FOIA 2013‐009A to be 5 weeks overdue; it is a
lack of respect at the NRC for the Freedom of Information Act.
FOIA Appeal 2013‐010A: This appeal was submitted 45 working days ago and involves two
documents which are both in the possession of the NRC Chairman: my 19‐page 2012‐09‐18
letter and the email to which it was attached. My letter was originally requested by Dave
Lochbaum on October 9, 2012 (FOIA 2013‐0008) and by Tom Zeller on October 15, 2012 (FOIA
2013‐0013). Tom Zeller requested expedited processing since at the time he was preparing a
story on the NRC’s handling of the Oconee flooding concerns. After 152 working days, Mr. Zeller
has yet to receive the letter through the NRC’s FOIA process, although he was able to obtain it
through other channels.
On February 13, 2013 I requested my 19‐page letter and the accompanying email when I noticed
that it had not yet been released to Zeller and Lochbaum. At the time, Dave’s request was 18
weeks old. It has now been more than 32 weeks since Dave made his request and 14 weeks
since my request (156 and 72 working days respectively). That is, after waiting 32 weeks for a
19‐page letter, Mr. Lochbaum has still not received even a redacted copy. There is no excuse for
this. The NRC Chairman is, for some reason, stonewalling Mr. Zeller and Mr. Lochbaum. If the
Chairman’s office had reviewed a mere one page a day, we could have met our legally required
20 working day limit for releasing the letter under the FOIA.
FOIA Appeal 2013‐011A: This appeal was submitted 45 working days ago and involves one
document: ML091170104, the Non‐Concurrence submitted by Melanie Galloway on the NRC’s
response to Duke Energy’s 2008‐09‐26 letter. On April 16, 2013 I received a redacted copy of
Ms. Galloway’s request; the version I received had redactions in 3 paragraphs and Exemption
7(f) was used for all redactions. So, once again, only one exemption to review applied to just
three paragraphs – yet this appeal is 25 working days overdue. It is not a lack of manpower or
time which has caused FOIA 2013‐011A to be 5 weeks overdue; it is a lack of respect at the NRC
for the Freedom of Information Act.
FOIA Appeal 2013‐013A: This appeal was submitted 21 working days ago and involves
correspondence between the NRC and other federal agencies regarding the Generic Issue 204
screening analysis report. The NRC informed me in February 2013 that it was going to cost me
$112.72 to pay for four hours of search fees in order to locate the documents requested. I
agreed to pay these fees on March 13, 2013. It has been more than ten weeks (52 working
days) since I agreed to pay for the documents requested and I have still not received them. I
estimate that the FOIA package consists of less than ten emails. If the NRC took four hours to
find the 10 emails and then reviewed one email a week for the past ten weeks, I would have my
requested documents by now. Can the NRC not find the time to review one email a week? It is
not a lack of manpower or time which has caused FOIA 2013‐013A to go overdue; it is a lack of
respect at the NRC for the Freedom of Information Act.
Again, although I do not agree with the supposed security concerns surrounding the documents I have
requested, this letter is not about security. It is about straight‐forward FOIA requests taking
unacceptably long times to be answered. It is about the NRC having a lack of respect for our
commitments under the Freedom of Information Act. It is about the office of the NRC Chairman
stonewalling on the release of a letter which, after 8 months, she still does not know how to address.
In the President’s 2009‐01‐21 memorandum on the Freedom of Information Act he states:
The Freedom of Information Act should be administered with a clear presumption: In the face of
doubt, openness prevails.
There is obviously much doubt at the NRC regarding the redactions appealed under FOIA 2013‐004A,
2013‐006A, 2013‐009A, 2013‐010A, 2013‐011A and 2013‐013A. If there was not a great amount of
doubt, then these FOIA appeals would not be, respectively, 63, 63, 45, 45, 45 and 21 working days old.
As shown in the indented paragraphs above, these appeals are not overdue because of lack of resources
or time; these appeals are overdue solely either because of doubt regarding whether the material
should be withheld or because of nefarious stonewalling. If the NRC did not doubt the basis for the
redactions, then the appeals could have easily been closed by now. But our President has given us a
simple solution: In the face of doubt, openness prevails. I urge you to take the President’s direction to
heart, and release in their entirety all the documents discussed above. It is what the President expects
you to do. Please do not require me to sue the NRC in order for you to perform your legal obligations
under the Freedom of Information Act; it is not right that you place that financial burden upon myself
and my family in order to force the release of documents which should have all along been publically
available. If you do not wish to release unredacted versions of the documents, then at least please
follow the law and meet your time obligations under the Freedom of Information Act for providing me
explanations for the FOIA exemptions applied to justify the redactions. The time limits prescribed in the
Freedom of Information Act have also been incorporated into the NRC’s regulations. Should we not be
setting an example for our licensees by following our own regulations?
I am writing those addressed on this letter in the hopes that you will take this information to heart and
ensure the agency lives up to our legal obligations under the Freedom of Information Act. Please do not
pass this letter off to the NRC’s Office of the Inspector General as yet another allegation. If I have an
allegation to make, I will submit an OSC Form 12 to the United States Office of the Special Counsel.
Although I live in Springfield, IL, I work in Rockville, MD and thus requested of you that you please do
not send documents to my home in Springfield, IL as I will not get them in a timely manner. Other than
the Office of the Inspector General, the NRC has thus far done well at following that request. If you have
actually already responded to my FOIA Appeals through the US mail, then please send me the responses
via email so that I have an electronic record of them.
Please continue to send all written correspondence to me via email at LSC[email protected] If your
processes will not allow you to do this, then please contact me via phone or email and I will come by the
FOIA desk to pick up the correspondence.
Very respectfully,
Lawrence S. Criscione, PE
(573) 230‐3959
Cc: Billie Garde, Clifford & Garde
Iryll Robbins‐Umel, National Treasury Employees Union
Scott Hodes, attorney
Louis Clark, Government Accountability Project
Jeff Ruch, Public Employees for Environmental Responsibility
David Lochbaum, Union of Concerned Scientists
Jim Riccio, Green Peace
Paul Koberstein, Cascadia Times
Tom Zeller, Huffington Post
Carl Stelzer, reporter
Paul Blanch, consultant
Kay Drey, citizen
Joe Carson, citizen
Randy Sullivan, steward
Carolyn Lerner, US Special Counsel
Catherine McMullen, US Office of Special Counsel