2013-06-13 – NRC – Jocassee Dam – POP for Dam Related FOIA Releases – ML16216A707

2013-06-13-nrc-jocassee-dam-pop-for-dam-related-foia-releases-ml16216a707

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Criscione, Lawrence
From: Criscione, Lawrence
Sent: Thursday, June 13, 2013 10:30 AM
To: Macfarlane, Allison
Cc: Vrahoretis, Susan
Subject: Your Reputation
Attachments: POP for Dam Related FOIA Releases.doc
Chairman?Macfarlane,?
?
Right?now,?there?is?a?group?of?agency?lawyers?meeting?with?RES,?NRR?and?NSIR?personnel?to?decide?how?to?redact?my?
September?18,?2012?letter?to?you?so?that?it?might?be?released?under?the?Freedom?of?Information?Act.??As?far?as?the?public?
is?concerned,?these?individuals?are?nameless?bureaucrats.??Yours?is?the?name?on?the?letter.??Any?redactions?applied?to?it?
will?be?assumed?to?have?been?made?with?your?blessing.??Any?delay?in?the?release?of?that?letter?(which?is?already?7?months?
overdue)?will?be?assumed?to?have?come?from?your?indecision.??These?things?might?not?be?fair,?but?they?are?some?of?the?
costs?which?come?with?the?burdens?and?privileges?of?leadership.?
?
You?have?a?duty?to?keep?the?American?public?openly?informed?about?potential?liabilities?to?their?health?and?safety?from?
commercial?nuclear?reactor?plants.??You?also?have?a?duty?to?safeguard?sensitive?information?that?might?be?damaging?to?
the?security?of?our?nation’s?reactor?plants.??Sometimes?these?duties?might?conflict.?
?
I?am?intentionally?being?excluded?from?the?discussions?that?are?occurring?today?regarding?what?can?and?cannot?be?
released?from?my?letter.??The?last?report?I?received?was?that?the?following?information?must?be?withheld:?
?
? Dam?failure?probabilities?
? Specifics?of?nuclear?power?events?caused?by?dam?failure?
? Flood?elevations?resulting?from?dam?failure?
?
Hopefully?you?recognize?that?the?above?information?is?vitally?important?for?the?American?public?to?make?an?informed?
decision?as?to?whether?or?not?the?risks?posed?to?nuclear?reactor?plants?by?upstream?dam?failures?is?being?adequately?
evaluated?and?addressed.??And?hopefully?you?recognize?that?this?information?should?be?shared?with?the?American?public.
?
There?are?some?within?NRR?and?RES?who?agree?with?me?that?the?above?information?should?be?shared?with?the?
public.??However,?there?are?some?who?disagree.??These?people?claim?that?the?above?three?items?could?be?helpful?to?
terrorists.?
?
If?we?must?withhold?any?and?all?information?that?might?be?helpful?to?a?terrorist,?then?we?will?fatally?impact?our?ability?to?
be?an?open?and?transparent?regulator.??A?terrorist?wishing?to?fly?a?plane?into?the?Empire?State?Building?would?find?the?
flight?schedules?posted?on?Southwest?Airline’s?website?to?be?beneficial?in?determining?the?optimum?plane?to?hi?jack?for?
their?mission,?but?hopefully?you?recognize?it?as?ludicrous?for?the?FAA?to?demand?that?Southwest?Airlines?pull?down?their?
flight?schedules.??A?line?must?be?drawn?somewhere.??
?
With?regard?to?nuclear?reactor?plants,?a?line?has?been?drawn.??It?was?drawn?with?Sections?141?145?of?the?Atomic?Energy?
Act,?which?prohibits?the?disclosure?of?Restricted?Data?or?Formerly?Restricted?Data?(42?U.S.C.?2161?2165).??And?it?was?
drawn?with?Section?147?of?the?Atomic?Energy?Act,?which?prohibits?the?disclosure?of?Unclassified?Safeguards?Information?
(42?U.S.C.?2167).??The?above?three?items?(i.e.?dam?failure?probabilities,?specifics?of?nuclear?power?events?caused?by?dam?
failure,?and?flood?elevations?resulting?from?dam?failure)?fall?outside?of?that?line.??That?is,?there?is?no?legal?requirement?for?
withholding?the?above?three?items?from?the?American?public.?
?
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It?is?my?position?that?some?personnel?in?NRR,?RES?and?NSIR?are?caving?in?to?what?President?Obama?termed?“speculative?
or?abstract?fears”?in?his?January?21,?2009?memo?on?the?Freedom?of?Information?Act.??That?is,?they?are?allowing?
speculative?or?abstract?fears?regarding?terrorist?targeting?concerns?of?dams?to?prevent?the?NRC?from?openly?sharing?with?
the?American?public?grave?safety?concerns?regarding?the?vulnerability?of?NRC?regulated?nuclear?reactor?plants?to?dam?
failures?from?natural?disasters.?
?
It?is?your?decision?as?to?how?my?2012?09?18?letter?to?you?is?redacted.??I?believe?you?have?no?legal?requirement?to?redact?
anything?from?it?and,?under?the?Freedom?of?Information?Act?and?under?President?Obama’s?inauguration?day?memo?on?
the?FOIA,?you?have?an?obligation?to?release?the?letter?unredacted.??Whatever?decision?you?make?will?reflect?on?your?
personal?reputation?and?will?have?no?bearing?on?the?reputations?of?the?nameless?(i.e.?nameless?to?the?public)?
bureaucrats?in?NRR,?RES,?NSIR?and?OGC?who?advised?you.?
?
If?you?would?like?to?meet?with?me?to?discuss?these?matters,?I?am?open?to?meet?with?you?any?time?this?week?or?next.?
?
Very?respectfully,?
Larry?Criscione?
Reliability?&?Risk?Engineer?
RES/DRA/OEGIB?
?
From: Criscione, Lawrence
Sent: Monday, June 10, 2013 9:35 AM
To: Monninger, John; Correia, Richard; Beasley, Benjamin
Cc: Kim, Grace; Pearson, Laura; Rothschild, Trip; Donnell, Tremaine; Albert, Michelle; Hirsch, Pat; Wilson, George; Boska,
John; Ammon, Bernice; Kilgore, Linda; Cook, Christopher; Coe, Doug; Kauffman, John; NTEU, Chapter 208; Sullivan,
Randy; Ferrante, Fernando; Mitman, Jeffrey; ODonnell, Edward; Perkins, Richard
Subject: “Options for moving forward”
?
Rich/John,?
?
Attached?is?the?“Purpose?Objective?Process”?for?your?meeting?today?concerning?my?FOIA?requests?and?appeals?regarding?
the?Jocassee/Oconee?documents.?
?
Since?this?meeting?is,?to?a?large?extent,?regarding?outstanding?FOIA?appeals?submitted?by?me,?I?do?not?expect?my?input?to?
have?much?weight?on?your?decisions.??But?for?what?it’s?worth,?my?opinion?on?how?to?address?my?outstanding?appeals?is?
to?follow?the?President’s?(i.e.?January?21,?2009)?and?Attorney?General’s?(i.e.?March?19,?2009)?guidance?that?“The?
Freedom?of?Information?Act?should?be?administered?with?a?clear?presumption:?In?the?face?of?doubt,?openness?prevails”?
and,?recognizing?the?doubt?inherent?by?the?necessity?of?requiring?today’s?meeting,?let?openness?prevail?and?release?the?
documents?I?seek?without?redaction.?
?
The?purpose?of?this?email,?however,?is?not?to?suggest?to?you?how?to?handle?currently?outstanding?FOIA?requests?and?
appeals,?but?rather?to?provide?you?my?input?regarding?agenda?item?3:??“Options?for?moving?forward?(John?Monninger)”.?
?
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:???
?
(3)?specifically?exempted?from?disclosure?by?statute?(other?than?section?552b?of?this?title),?if?that?statute—?
(A)??????????(i)?requires?that?the?matters?be?withheld?from?the?public?in?such?a?manner?as?to?leave?no?
discretion?on?the?issue;?or?
(ii)?establishes?particular?criteria?for?withholding?or?refers?to?particular?types?of?matters?to?be?
withheld;?and?
(B)?if?enacted?after?the?date?of?enactment?of?the?OPEN?FOIA?Act?of?2009,?specifically?cites?to?this?
paragraph.?
?
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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?(i.e.?important?for?the?public?to?assess?the?risks?
associated?with?their?local?nuclear?power?plant)?cannot?be?released?to?the?public,?but?rather?for?the?NRC?to?come?to?the?
Congress?with?the?request?for?a?specific?statute?authorizing?the?withholding?of?the?supposed?security?sensitive?
information.??Then,?through?open?legislative?processes,?for?the?Congress?to?decide?the?merits?of?withholding?the?security?
sensitive?information?against?the?benefits?from?having?open?access?to?this?important?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,?clear?criminal?penalties?for?the?unauthorized?release?of?the?
information)?which?would?ensure?that?it?is?well?understood?as?to?precisely?what?must?be?withheld?under?the?statute?and?
by?whose?authority.?
?
My?suggesting?for?going?forward?is?for?the?NRC?to?petition?Congress?to?provide?an?“Exemption?3?statute”?regarding?(1)?
Dam?failure?probabilities,?(2)?Specifics?of?nuclear?power?events?caused?by?dam?failure,?and?(3)?Flood?elevations?resulting?
from?dam?failure.??If?the?NRC?is?unwilling?to?do?this,?then?I?believe?we?must?ask?ourselves?“why?”.??If?this?information?
truly?affects?public?safety?and?security,?then?it?deserves?a?specific?statute.??If?we?are?unwilling?to?request?a?statute,?it?
might?be?because?the?real?reason?we?are?withholding?this?information?is?“because?public?officials?might?be?embarrassed?
by?disclosure,?because?errors?and?failures?might?be?revealed,?or?because?of?speculative?or?abstract?fears”.?
?
My?other?suggestion?going?forward?is?to?require?portion?marking?on?all?documents?designated?“Official?Use?Only”?or?
some?other?designation?limiting?public?disclosure.??It?is?unfair?to?the?NRC?staff?to?have?to?sort?through?OUO?documents?
and,?individually?with?fractured?guidance?(see?ML12313A059?for?examples)?decide?what?is?and?what?is?not?OUO.??Rather?
what?should?be?occurring?is?the?person?designating?the?document?OUO?should?portion?mark?each?paragraph?which?
contains?OUO?and?each?paragraph?which?does?not?contain?any?OUO.??Documents?should?be?designated?so?that?it?is?
precisely?clear?to?the?reader?what?paragraphs?cannot?be?released?and?what?paragraphs?are?fully?releasable.?
?
I?am?available?to?attend?today’s?11?am?meeting?if?you?believe?my?input?would?be?beneficial.?
?
V/r,?
Larry
Lawrence S. Criscione
Reliability & Risk Engineer
RES/DRA/OEGIB
Church Street Building
Mail Stop 2A07
(301) 251-7603?