2013-07-05 – NRC – Jocassee Dam – PEER FOIA PA-2013-00239 Appeal From Initial Decision – ML16216A706

2013-07-05-nrc-jocassee-dam-peer-foia-pa-2013-00239-appeal-from-initial-decision-ml16216a706

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Public Employees for Environmental Responsibility
2000 P Street, NW• Suite 240 •Washington, D.C. 20036 • 202-265-PEER(7337) •fax: 202-265-4192
e-mail: [email protected] •website: www.peer.org
July 5, 2013
Ms. Donna L. Sealing
FOIA/Privacy Act Officer
Office of Information Services
U.S. Nuclear Regulatory Commission
Washington, DC 20555-0001
CC: Mr. Bill Borchardt, Executive Director for Operations
Ms. Linda Kilgore, FOIA!Privacy Act Specialist
RE: Appeal From Initial Decision; FOIA/P A-2013-00239
Dear Ms. Sealing:
Public Employees for Environmental Responsibility (PEER) hereby appeals the U.S.
Nuclear Regulatory Commission’s (NRC) June 10, 2013 response to PEER’s Freedom of
Information Act (FOIA) request submitted on May 7, 2013 and assigned reference number
FOIA!PA-2013-00239 (see attachment A).
PEER’s FOIA request seeks records relating to the risk of inundation from dam failure to
operating commercial nuclear reactors. Specifically, we requested the following eleven records:
• ML101900305, Identification of a Generic External Flooding Issue Due to Potential Dam
Failures (Agency Response “Accession No. ML 13039A086”);
• ML100780084, Generic Failure Rate Evaluation for Jocassee Dam Risk Analysis (Agency
Response “Accession No. ML13039A084”);
• ML091l70104, 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 (Agency Response
“Accession No. ML13106Al68”);
• ML101610083, Oconee Nuclear Station, Units 1, 2, and 3, – External Flood Commitments
(Agency Response “Accession No. ML101610083”);
1
Field Offices: California• Florida • New England • New Jersey • Refuge Keeper• Rocky Mountain • Southwest• Tennessee * [email protected]
• MLOS 1640244, 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) (Agency Response “Accession no.
ML12363A132”);
• ML081750106, Oconee, Units 1, 2 and 3 – Response to 10 CFR 50.54(±) Request1 (Agency
Response “Accession No. ML12363A129”);
• 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 (Agency Response “Accession No. ML12363Al33”);
• MLl 11460063, Oconee Nuclear Site, Units 1, 2, and 3. Response to Confirmatory Action
Letter (CAL) 2-10-003, dated April 29, 2011 (Agency Response “Accession No.
ML13099A247”);
• MLl 10740482, Analysis Report for the Proposed Generic Issue on Flooding of Nuclear
Power Plant Sites Following Upstream Dam Failures;
• The 19- page letter from NRC employee Lawrence Criscione to the NRC Chairman dated
September 18, 2012; and
• The email dated September 18, 2012 from Lawrence Criscione to the NRC Chairman.
NRC acknowledged receipt of PEER’s FOIA request (“request”) in a letter dated May 7,
2013 (see attachment B). NRC’s partial response (“response”), dated June 10, 2013, includes
one complete record, seven partial records, and a statement that three records “will be addressed
in a later response” (see attachment C).
PEER hereby appeals the withholding of responsive material for the following reasons:
1. NRC fails to provide adequate justification for withholding the material or a Vaughn
index of the withheld records (or withheld portions )2;
2. NRC fails to satisfy the basic Exemption 7 thresholds;
3. NRC fails to satisfy the specific Exemption 7(F) threshold;
4. NRC fails to explain how a portion of a record could be “outside of scope” of PEER’s
request;
5. NRC fails to abide by statutory time limits;
6. NRC’s previously disclosed records cannot be withheld; and
7. NRC fails to address segregability.
1 Original request listed “ML08l750106.” Upon review, PEER noticed a possible typo. The original request likely
should have read “ML082 l 750 I 06.” However, PEER believes that the correct document was provided in the
response.
2 References to “withheld records” are to mean any record withheld in full or in part.
2
1. NRC fails to inform the requester of the reason(s) for denial, justify its
withholding, and provide itemized descriptions or a Vaughn index of the withheld
records.3
As a fundamental matter, NRC withholds many pages of records without providing any
context, explanation or description of the withheld information. NRC has simply failed to meet
its heavy burden to justify redacting the information. A decision to deny a request must inform
the requester of the reasons for denial. See 5 U.S.C. § 552(a)(6)(A)(i) (requiring agencies to
“immediately notify the [requester] of such determination and the reasons therefor”). NRC’s
response is a boilerplate form that merely quotes the statutory language. Parroting the statutory
language is not a justifiable “reason” for withholding records as it does not demonstrate how the
records are properly exempt under FOIA.
Additionally, PEER’s request clearly states:
For any documents or portions of documents that you block release due to
specific exemption(s) from the requirements of the [FOIA], please provide an
index itemizing and describing the documents or portions of documents withheld.
The index should, pursuant to the holding of Vaughn v. Rosen, 484 F.2d 820
(D.C. Cir. 1973) cert. denied, 415 U.S. 977 [1974]), provide a detailed
justification for claiming a particular exemption that explains why each such
exemption applies to the document or portion of a document withheld.
Despite PEER’s written request for descriptions of the withheld information and the statutory
requirement to provide “reasons” for withholding information, NRC makes no attempt to provide
PEER with such information.
2. NRC fails to satisfy basic Exemption 7 threshold requirements because NRC’s
response fails to indicate its “law enforcement purpose” and fails to identify a “law
enforcement purpose” for which the records were “compiled.”4
3 Section I applies to all withheld records (or portions)
4 Section 2 applies to all records withheld pursuant to Exemption 7(F)
– ML I 01900305, Identification of a Generic External Flooding Issue Due to Potential Dam Failures (Agency
Response “Accession No. ML 13039A086”);
– ML! 00780084, Generic Failure Rate Evaluation for Jocassee Dam Risk Analysis (Agency Response “Accession
No. MLI3039A084”);
– ML09 l l 70104, 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 (Agency Response “Accession No. MLI3106Al68”);
– ML08 I 640244, 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) (Agency Response “Accession no. MLI2363AI32”);
– ML08I750106, Oconee, Units I, 2 and 3 – Response to IO CFR 50.54(f) Request (Agency Response “Accession
No. MLI2363AI29”);
– ML090570779, Oconee Nuclear Station Units I, 2, and 3, Evaluation of Duke Energy Carolinas September 26,
2008, Response to External Flooding, Including Failure of the Jocassee Dam (Agency Response “Accession No.
MLI2363AI33”); and
3
Pursuant to 5 U.S.C. § 552(b)(7) (“Exemption 7”), NRC withholds portions of seven
requested records. Exemption 7 allows an agency to withhold “records or information compiled
for law enforcement purposes, but only to the extent that the production of such law enforcement
records” fit within one of Exemption 7’s six subparts. 5 U.S.C. § 552(b)(7)(A)-(F).
Accordingly, as a preliminary matter, NRC “must meet the threshold requirements of Exemption
7 before withholding requested documents on the basis of any of its subparts.” Pratt v. Webster,
673 F.2d 408, 416 (D.C. Cir. 1982). The Exemption 7 threshold requirements involve two steps.
First, an agency claiming Exemption 7 must demonstrate that the agency serves a “law
enforcement purpose.” See Schoenman v. FBI, 575 F. Supp. 2d 136, 163 (D.D.C. 2008) (finding
that agency “failed to establish” its law enforcement purpose and consequently failed to meet the
Exemption 7 threshold requirement). Cf Pratt, 673 F.2d at 414 (stating that “law enforcement
purpose” not only describes the type of agency, but also functions as a condition on the use of
the exemption) (internal quotes omitted).
NRC’s response fails to meet this threshold because the response makes no mention of the
agency’s “law enforcement purpose” let alone demonstrates that it has one. Even ifNRC could
demonstrate a legitimate law enforcement purpose under Exemption 7(F), it would still be
subject to a more rigorous standard when evaluating this threshold requirement. Tax Analysts v.
IRS, 294 F.3d 71 , 77 (D.C. Cir. 2002). While an agency whose primary function is law
enforcement must establish only a “rational nexus” between the records it seeks to withhold and
“its authority to enforce a statute or regulation,” Abdelfattah v. US. Dep’t of Homeland Sec., 488
F.3d 178, 186 (3d Cir. 2007), an agency with mixed functions is subject to a more “exacting
standard” in showing the connection between the withheld documents and its law enforcement
functions. Tax Analysts, 294 F.3d at 77. Such an agency “must demonstrate that it had a
purpose falling within its sphere of enforcement authority in compiling the particular document.”
Church of Scientology v. Department of the Army, 611 F.2d 738, 748 (9th Cir. 1980). NRC has
not demonstrated the fundamental requirement of Exemption 7 that it have a “law enforcement
purpose,” and therefore fails to meet its burden to justify redacting the information. It thus also
cannot meet the heightened level of scrutiny applicable to mixed function agencies.
Second, an agency claiming Exemption 7 must show that the records at issue were
compiled to enforce a statute or regulation within its law enforcement purpose. See Birch v.
USPS, 803 F.2d 1206, 1210-11 (D.C. Cir. 1986) (explaining that threshold is met where the
agency demonstrates that records were compiled pursuant to the enforcement of laws within the
statutory authority of the agency) (emphasis added). NRC fails to satisfy this threshold
requirement because it withholds information without any accompanying explanation as to how
or why the information was compiled to enforce a statute or regulation within its law
enforcement purpose. See Antonelli v. ATF, 555 F. Supp. 2d 16, 24 (D.D.C. 2008) (ruling in
favor of plaintiff-requester where agency attempted to withhold information under Exemption 7
but failed to demonstrate that records were “complied for law enforcement purpose”); United
Am. Fin. v. Potter, 53 l F. Supp. 2d 29, 46 (D.D.C. 2008) (finding that, as threshold matter,
agency must explain that records were compiled for law enforcement purposes). Indeed, since
– MLI 11460063, Oconee Nuclear Site, Units I, 2, and 3. Response to Confirmatory Action Letter (CAL) 2-10-
003, dated April 29, 2011 (Agency Response “Accession No. ML13099A247”).
4
NRC did not show that it had a law enforcement function, it would be hard to demonstrate that
the sought records were specifically compiled for a law enforcement purpose.
Some of the sought records are from NRC’s research department, which, by its nature is
not an enforcement body and thus any records from it cannot be compiled for law enforcement
purposes. Other records appear to be Office of Nuclear Reactor Regulation (“NRR”) records, not
the Office of Investigations or Office of Inspector General (the NRC arms with plausible law
enforcement functions). It is doubtful that the records at issue here were compiled for a specific
law enforcement purpose since NRR has not been shown to have a law enforcement purpose to
which the records specifically relate. Moreover, the theoretical threat posed to reactors by natural
disasters or structural failures outside of NRC jurisdiction are beyond the scope of any law
enforcement proceeding.
In sum, to properly assert Exemption 7, NRC must provide a specific explanation as to
the agency’s law enforcement purpose and the specific law enforcement action for which the
records were compiled. See Miller v. DOJ, 562 F. Supp. 2d 82, 118 (D.D.C. 2008) (finding
Exemption 7 threshold cannot be satisfied when agency neither explains the “manner and
circumstances” under which the records were compiled nor links the records to a law
enforcement purpose). For its failure to meet, or even address, any of the Exemption 7 threshold
requirements, NRC fails to justify withholding under Exemption 7 and all of its subparts.
3. NRC fails to satisfy the specific thresholds of Exemption 7(F) because it never
shows that disclosure “could reasonably be expected to endanger the life or
physical safety of any individual.”5
If it satisfies the Exemption 7 threshold requirements, an agency asserting subpart (F) then
must demonstrate that disclosure of the records “could reasonably be expected to endanger life or
physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). Neither NRC’s response nor the
records it produced even suggest that disclosure of the withheld records “could reasonably be
expected to endanger the life or physical safety of any individual.” Id.
For decades, agencies have been relying on the phrase “could reasonably be expected to
endanger life or physical safety of any individual” to prevent disclosure of records containing
information such as the names and identifying information of witnesses, informants, government
agents, non-law enforcement federal employees, local law enforcement personnel, and other
third persons in connection with particular law enforcement matters. It is difficult to imagine
how the records NRC withholds are similar to these examples. Even the NRC website
acknowledges that 7(F) does not protect the types of records PEER requests. The website reads
as follows:
Exemption 7(F): Disclosure could reasonably be expected to endanger life or
physical security of any individual
• Exemption has rarely been used by NRC
• Records or information compiled for law enforcement purposes the disclosure
of which could endanger the life or physical safety of an individual or
individuals,/or instance, where necessary to protect an individual (or group
5 Id. Section 3 applies to the same withheld records (or portions) listed in footnote 4.
5
of individuals) from possible harm by a requester who has threatened harm
in the past 6 (emphasis added)
NRC’s response fails to connect the withheld records with any “reasonably[] expected”
danger to the “life or physical safety of any individual.” 5 U.S.C. 552(b )(7)(F). NRC “does not
need to identify [an endangered] individual by name,” but the agency cannot simply “identify an
individual only as being a member of a vast population.” American Civil Liberties Union v.
Dep’t of Defense, 453 F.2d 59, 80 (2d Cir. 2008). NRC even fails to make a conclusory
statement asserting that disclosure is reasonably expected endangered individuals. Indeed, PEER
guesses that NRC’s withholding appears to be based on speculative, abstract and unsubstantiated
fears that disclosing the information will somehow aid in terrorist wrongdoing. This does not
suffice to justify withholding the information. Furthermore, failing to publicly acknowledge the
risks of dam failure and reactor flood inundation risks due to natural hazards puts individuals
more at risk of harm. Because the issue has not been publically acknowledged, it is not getting
the adequate level of attention to remedy the problems that may arise, putting the public more at
risk.
4. NRC wrongfully withholds records as “outside of [the] scope” of PEER’s request.7
NRC withholds portions of two records claiming that the redacted information is “outside
of [the] scope” of PEER’s request. Given the language in PEER’s request, it is impossible for a
record (or portion of a record) to be “outside of [the] scope.” PEER’s request seeks production
of specific records in their entirety (see attachment A). PEER’s request provides the “accession
number” and title or brief description of each record. It is impossible for a portion of a document
or record to “outside of [the] scope” of an entire record.
5. NRC fails to meet its statutory time limit. 8
NRC’s response fails to address three of the eleven records requested more than two
months ago on May 7, 2013. NRC fails to meet the twenty-business day response time that
FOIA imposes on agencies. FOIA states that agencies “shall make records promptly available”
upon request. 5 U.S.C. § 552(a)(3)(A). Under FOIA’s administrative appeal provision, a
requester may administratively appeal an agency’s adverse determination (including agency’s
6 http://www.nrc.gov/reading-rrn/foia/foia-request.html#appeals
7 Section 4 applies to the following records with redactions claimed to be “outside of scope”
– ML08 l 640244, Information Request Pursuant to I 0 CFR 50.54(F) Related to External Flooding, Including
Failure ofthe Jocassee Dam at Oconee Nuclear Station, Units 1, 2, and 3 (TAC Nos. MD8224, MD8225, and
MD8226) (Agency Response “Accession no. ML12363Al32”) (Outside of Scope redaction of page 3); and
– 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 (Agency Response “Accession No.
ML12363Al33”) (Outside of Scope, redaction of page 5).
8 Section 5 applies to the three records to which NRC has yet to address:
– MLI 10740482, Analysis Report for the Proposed Generic Issue on Flooding of Nuclear Power Plant Sites
Following Upstream Dam Failures;
– The 19- page letter from NRC employee Lawrence Criscione to the NRC Chairman dated September 18, 2012;
and
– The email dated September 18, 2012 from Lawrence Criscione to the NRC Chairman.
6
failure to address requested records). 5 U.S.C. § 552(a)(2). PEER appeals NRC’s constructive
denial of these records.
6. NRC wrongfully withholds records previously made public.9
Under FOIA, release to one is release to all. NARA v. Favish, 541 U.S. 157,174 (2004)
(explaining that “once there is disclosure, the information belongs to the general public”). Since
filing its request, PEER learned that the NRC fully released record “ML101900305” (Agency
Response “Accession No. ML 13039A086”) in response to a previous FOIA request to another
organization.
Compare record “ML101900305, Identification of a Generic External Flooding Issue Due
to Potential Dam Failures” (Agency Response “Accession No. ML 13039A086”) with
“ML13066A429, Email from F. Ferrante, NRR to J. Mitman, NRR on NRR Submittal to GIP –
External Flooding Issue (Dam Failures).” Record ML13066A429, the latter, was released to
Greenpeace’s Jim Riccio on February 6, 2013 in response to FOIA 2012-0325 and remains
available on NRC’s public website. PEER requests record ML101900305 (Agency Response
“Accession No. ML 13039A086”), but NRC provides PEER with a redacted version. Although
the documents appear slightly different, ML13066A429 is an unredacted version of
ML101900305 (Agency Response “Accession No. ML 13039A086”), the memorandum PEER
requests but that NRC fails to produce in full. 10 This record should be fully produced.
7. NRC fails to address segregability.11
NRC’s response fails to make any mention of segregability. FOIA requires that “[a]ny
reasonably segregable portion of a record shall be provided to any person requesting such a
record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b) (sentence immediately
following exemptions). “The segregability requirement applies to all … documents and all”
FOIA Exemptions. Judicial Watch, Inc. V DOJ, 432 F.3d 366, 371 (D.C. Cir. 2005). When
responding to FOIA requests, agencies are to determine and explain to the requester whether
“any intelligible portion of the contested” redactions can be “segregated for release.” Mays v.
DEA, 234 F.3d 1324, 1328 (D.C. Cir. 2000). Agencies are required to address segregability
“with reasonable specificity” and cannot make assumptions as to the value of withheld
information to the requester, no matter how seemingly insignificant the redacted portions may be
in the eyes of the agency. Stolt-Nielsen Transp. Group Ltd. V United States, 534 F.3d 728, 734
(D.C. Cir. 2008). Furthermore, an agency cannot rely on conclusory assertions to satisfy the
segregability requirement. The agency must demonstrate that all reasonably segregable,
nonexempt information is properly disclosed. United Am. Fin., Inc. v. Potter, 531 F. Supp. 2d
9 Section 6 applies to record MLI 01900305, Identification of a Generic External Flooding Issue Due to Potential
Dam Failures (Agency Response “Accession No. ML 13039A086”).
10 The only differences are:
1. the first page (i.e. the email from Ferrante to Mitman);
2. the missing July 19, 2010 date at the top of the second page; and
3. the fact that every page is offset by about five lines due to the added date to the final version.
From an information standpoint, all the information redacted from ML13039A036 to PEER was provided to
Greenpeace in ML13066A429.
11 Section 7 applies to all withheld records.
7
29, 41 (D.D.C. 2008). Without any explanation or discussion of segregability, the responsive
records appear to contain arbitrarily deleted swaths of information.
Missing Attachment
NRC produced 33 pages ofrecord ML081750106, Oconee, Units 1, 2 and 3 – Response to
10 CFR 50.54(±) Request (Agency Response “Accession No. ML12363A129”). Record
ML081750106 should contain four attachments (see attachment D at page 1: “Attachment 4 is a
listing of regulatory commitments.”), but NRC’s production includes only three of the
attachments. The final page of the record is a cover sheet for “attachment 4.” It is not clear from
the production whether attachment 4 was provided, and just did not contain any more
information than is there, or whether it was omitted from the production. If it was omitted, NRC
fails to cite a FOIA exemption for the missing attachment. NRC appears to be withholding a
requested record without justification. NRC is required to clearly mark all redacted portions (all
partially disclosed records) so that the claimed exemption, amount of information, and location
of information is readily apparent to the requester. 5 U.S.C. § 552(b) (paragraph immediately
following exemptions).
IfNRC mistakenly omitted “attachment 4” from production, PEER requests that NRC
produce the missing pages at this time. If NRC is withholding “attachment 4” pursuant to FOIA
Exemption 7(F), PEER appeals the withholding.
Fee Waiver
Finally, PEER appeals NRC’s assessment of our fee waiver request as “non-excepted”
and appeals the assertions that “although your justification for fee waiver is not adequate, it is
unlikely that you will incur any fees” and “your request for a fee waiver is moot.” (see
attachment C). NRC failed to explain how PEER’s fee waiver was not adequate. PEER believes
that its justification is adequate and fee waiver should be granted.
The request explains that PEER, a 501(c)(3) non-profit and tax exempt organization,
meets the statutory requirements for a fee waiver. The request dedicates three pages of text to
address all eight fee waiver factors listed in 10 CFR 9 .41. The request clearly demonstrates that
disclosure of the information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of the government and is not
in the commercial interest of the requester. (see attachment A).
Conclusion
In his January 21, 2009 memo, President Barack Obama declared the following policy for
the Executive Branch:
“The Freedom of Information Act should be administered with a clear presumption: In
the face of doubt, openness prevails. The Government should not keep information
confidential merely because public officials might be embarrassed by disclosure, because
errors and failures might be revealed, or because of speculative or abstract fears.
8
Nondisclosure should never be based on an effort to protect the personal interests of
Government officials at the expense of those they are supposed to serve… All agencies
should adopt a presumption in favor of disclosure, in order to renew their commitment to
the principles embodied in FOIA, and to usher in a new era of open Government. The
presumption of disclosure should be applied to all decisions involving FOIA.”
NRC’s claim that the records PEER requests are exempt from full disclosure falls short of
meeting the requirements for any FOIA exemption, including 5 U.S.C. § 552 (b)(7).
Consequently, PEER maintains that NRC fails to adequately or properly respond to its FOIA
request and is in violation of the Freedom of Information Act for wrongfully withholding
properly requested records.
Thank you for the consideration of this appeal.
Kathryn Douglass
Staff Counsel
Enclosed Attachments:
A. PEER’s Original Request
B. NRC’s Acknowledgement Letter
C. NRC’s Response
D. NRC’s Production of Requested Record ML081750106
9
Attachment A
4 pages
(not including this cover page)
FOIA Resource
From: Kit Douglass
Tuesday, May 07, 2013 1:00 PM
FOIA Resource
Sent:
To:
Subject: FOIA request
U.S. Nuclear Regulatory Commission
FO IA/Privacy Officer
Mailstop: T-5 F09
Washington, DC 20555-0001
RE: Freedom of Information Act Request
VIA EMAIL
Dear FOIA Officer:
May 7, 2013
Pursuant to the Freedom of Information Act, 5 U.S.C. 552, as amended, Public Employees for Environmental
Responsibility (PEER) requests information in the possession of the Nuclear Regulatory Commission (NRC) regarding
the risk of inundation from dam failure to operating commercial nuclear reactors. Specifically, we request the following:
1. ML 1107 40482, Analysis Report for the Proposed Generic Issue on Flooding of Nuclear Power Plant
Sites Following Upstream Dam Failures;
2. MLl 01900305, Identification of a Generic External Flooding Issue Due to Potential Dam Failures;
3. ML100780084, Generic Failure Rate Evaluation for Jocassee Dam Risk Analysis;
4. 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;
5. ML101610083, Oconee Nuclear Station, Units 1, 2, and 3, – External Flood Commitments;
6. 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);
7. ML081750106, Oconee, Units 1, 2 and 3 – Response to 10 CFR 50.54(f) Request;
8. 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;
9. 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;
10. MLl 11460063, Oconee Nuclear Site, Units 1, 2, and 3. Response to Confirmatory Action Letter (CAL)
2-10-003, dated April 29, 2011;
1
11. The 19- page letter from NRC employee Lawrence Criscione to the NRC Chairman dated September 18,
2012;and
12. The email dated September 18, 2012 from Lawrence Criscione to the NRC Chairman.
PEER requests that all records be provided electronically, preferably via ADAMS, so there should be no duplication
necessary.
In a January 21, 2009 memo, President Barack Obama declared the following policy for the Executive Branch:
“The Freedom of Information Act should be administered with a clear presumption: In the face of doubt,
openness prevails. The Government should not keep information confidential merely because public officials
might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or
abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government
officials at the expense of those they are supposed to serve … All agencies should adopt a presumption in favor of
disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of
open Government. The presumption of disclosure should be applied to all decisions involving FOIA.”
For any documents or portions of documents that you block release due to specific exemption(s) from the requirements of
the Freedom of Information Act, please provide an index itemizing and describing the documents or portions of
documents withheld. The index should, pursuant to the holding of Vaughn v. Rosen (484 F.2d 820 [D.C. Cir. 1973] cert.
denied, 415 U.S. 977 [1974]), provide a detailed justification for claiming a particular exemption that explains why each
such exemption applies to the document or portion of a document withheld.
PEER requests that all fees be waived because “disclosure of the information is in the public interest … and is not
primarily in the commercial interest of the requestor” (5 U.S.C. 552 (a) (4)(A)). We address the eight factors laid out in
IO CFR 9.41 to clearly demonstrate that disclosure of the information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or activities of the government and is not primarily in
the commercial interest of the requester, as follows:
(I) Purpose for which the requester intends to use the requested information;
PEER seeks the requested information solely to contribute to and help shape the public debate concerning the NRC’s role
in the regulation of the nuclear industry. The information provided by the NRC will be analyzed to evaluate the NRC’s
effectiveness for responding to flooding concerns at the Oconee Nuclear Station and similarly vulnerable reactors.
(2) Extent to which the requester will extract and analyze the substantive content of the agency record;
The requested information and the requesters’ analysis of the NRC’s response to flooding concerns at Oconee and other
sites will greatly contribute to the public’s understanding of the Commission’s role in regulating the nuclear industry. The
requested documents detail the NRC’s knowledge of these inundation risks as well as its response to those risks. As such,
these documents are the most meaningful indices of how this vital public agency is addressing this extremely serious
issue.
(3) Nature of the specific activity or research in which the agency records will be used and the specific
qualifications the requester possesses to utilize information for the intended use in such a way that it will
contribute to public understanding;
PEER is national alliance of local state and federal resource professionals. PEER’s environmental work is solely directed
by the needs of its members. As a consequence, we have the distinct honor of serving resource professionals who daily
cast profiles in courage in cubicles across the country. Public employees are a unique force working for environmental
‘enforcement. In the ever-changing tide of political leadership, these front-line employees stand as defenders of the public
interest within their agencies and as the first line of defense against the exploitation and pollution of our
2
environment. Their unmatched technical knowledge, long-term service and proven experiences make these professionals
a credible voice for meaningful reform.
PEER is working with government scientists, engineers and other agency specialists to obtain and analyze what we
believe are important agency documents which should – but have not yet – reached the public domain.
4) The likely impact on the public’s understanding of the subject as compared to the level of public
understanding of the subject before disclosure;
The vast majority of the documents PEER is requesting have not yet been released outside the NRC and thus
the public has little idea of their content. With the context provided by PEER, these documents would help the
public understand in a new, far more detailed way –
);;>. The extent of flood inundation risks to American reactors-what reactors are at what level of risk;
);;>. What has the NRC done about known risks – especially severe risks whose existence has been known
for years; and
);;>. The options available for minimizing or eliminating these risks.
These issues are important planks in a larger public debate about the safety and reliability of nuclear-generated
power and the professionalism and judgment exercised by the key regulatory agency.
(5) The size and nature of the public to whose understanding a contribution will be made;
The bulk of the requested document consists of a formal screening evaluation conducted by a federal regulator
(i.e. the NRC) on a potentially serious public safety concern (i.e. the vulnerability of nuclear power plants to
flooding due to the failure of upstream darns). Thus, the most directly affected segment of the public will be
those living within the evacuation zones of at-risk reactors. Since it is our understanding that the portion of atrisk
reactors may be as large as one-third of the nation’s nuclear capacity, several to tens of millions of the
American public will be vitally concerned with the information contained in the requested documents.
Given the potential magnitude of worst-case-scenario consequences outlined in the requested documents, it
would not be an exaggeration to say that all U.S. residents will have their understanding of the vulnerabilities
outlined within these documents heightened.
(6) Intended means of dissemination to the general public;
PEER intends to provide the requested information to the general public through –
);;>. Release to the news media;
);;>. Posting on the PEER web page which draws between 1,000 and 10,000 viewers per day; and
);;>. Publication in PEER’s newsletter that has a circulation of approximately 20,000, including 1,500
environmental journalists.
Through these methods, PEER generates an average of 1.5 mainstream news articles per day. Moreover, PEER
has repeatedly demonstrated the ability to generate nationwide news coverage concerning activities occurring
within federal agencies, such as the NRC.
In addition, this topic -without the benefit of all the documents PEER is requesting – has already been the
subject of national media coverage. We would anticipate even greater coverage once the requested documents
are disclosed.
3
(7) Public access to information will be provided free of charge; and
As indicated above, the requested documents will be available to the general public without charge and in the
most accessible manner possible.
(8) PEER has no commercial or private interest in the agency records sought.
Disclosure is in no way connected with any commercial interest of the requestors in that PEER is a nonprofit,
nonpartisan public interest organization concerned with upholding the public trust through responsible
management of our nation’s resources and with supporting professional integrity within public land
management and pollution control agencies. To that end, PEER is designated as a tax-exempt organization
under section 501 ( c) (3) of the Internal Revenue code.
As detailed above, these documents concern the activities of a federal agency, the NRC; will contribute
significantly to public understanding of this agency’s operations and activities; and the requestor has no
commercial interest in their release. Unquestionably, the public interest strongly militates for their full
disclosure.
If you have any questions about this FOIA request, please contact me at (202) 265-PEER. I look forward to
receiving the agency’s final response within 20 working days.
Sincerely,
Kathryn Douglass
Staff Counsel
Public Employees for Environmental Responsibility (PEER)
2000 P Street, NW Suite 240
Washington, DC 20036
Tel: (202) 265-7337; Fax: (202) 265-4192
Website: www.peer.org
4
Attachment B
1 page
(not including this cover page)
Kathryn Douglass
UNITED STATES
NUCLEAR REGULATORY COMMISSION
WASHINGTON , D.C. 20555-0001
May 7, 2013
Public Employees for Environmental Responsibility
2000 P Street, NW, Suite 240
Washington, DC 20036
Dear Requester:
FOIA/PA-2013-00239
We received your Freedom of Information Act/Privacy Act (FOIA/PA) request on May 7, 2013.
Your request has been assigned the following reference number that you should use in any
future communications with us about your request: FOIA/PA-2013-00239
To ensure the most equitable treatment possible of all requesters, the NRC processes requests
on a first-in, first-out basis, using a multiple track system based upon the estimated time it will
take to process the request. Based on your description of the records you are seeking, we
estimate completion of your request will take more than 20 working days. We will advise you of
any change in the estimated time to complete your request.
Due to the unexpected events in Japan in March 2011, the NRC is processing a larger than
normal volume of FOIA requests including some that have qualified for expedited processing
and have therefore been placed at the front of the queue. We are doing our best to process all
requests in a timely manner but our response times are being affected. We appreciate your
understanding.
For purposes of assessing fees in accordance with our regulations (10 CFR 9.33), we have
placed your request in the following category: Non-Excepted. If applicable, you will be charged
appropriate fees for: Search and Duplication of Records. Although your justification for a fee
waiver is not adequate, it is unlikely that you will incur any fees. Therefore, your request for a
fee waiver is moot.
The following person is the FOIA/PA Specialist who has been assigned responsibility for your
request: Linda Kilgore at 301-415-5775.
If you have questions on any matters concerning your FOIA/PA request please feel free to
contact the assigned FOIA/PA Specialist or me at (301) 415-7169.
Enclosures:
Incoming Request
Sincerely,
/SI
Donna L. Sealing
FOIA/Privacy Act Officer
Office of Information Services
Attachment C
3 pages
(not including this cover page)
NRC FORM 464 Part I U.S. NUCLEAR REGULATORY COMMISSION FOIA/PA RESPONSE NUMBER
(10-201 2)
RESPONSE TO FREEDOM OF
INFORMATION ACT (FOIA) I PRIVACY
ACT(PA)REQUEST
2013-239
RESPONSE
TYPE D FlNAL 0 PARTIAL
REQUESTER
Kit Douglass
DATE JUN 1 0 2t1a
PART I. — INFORMATION RELEASED
D No additional agency records subject to the request have been located.
D Requested records are available through another public distribution program. See Comments section.
17J APPENDICES L_{j A
Agency records subject to the request that are identified in the listed appendices are already available for
public inspection and copying at the NRC Public Document Room.
D
D
D
D
0
D
APPENDICES Agency records subject to the request that are identified in the listed appendices are being made available for
public inspection and copying at the NRC Public Document Room.
Enclosed is information on how you may obtain access to and the charges for copying records located at the NRC Public
Document Room, 11555 Rockville Pike, Rockville, MD 20852-2738.
APPENDICES
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.
We are continuing to process your request.
See Comments.
AMOUNT’
PART I.A — FEES
D You will be billed by NRC for the amount listed.
D You will receive a refund for the amount listed.
D None. Minimum fee threshold not met.
D Fees waived. $~’-~ • See comments
for details
D
0
0
PART l.B — INFORMATION NOT LOCATED OR WITHHELD FROM DISCLOSURE
No agency records subject to the request have been located. For your information, Congress excluded three discrete
categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c)
(2006 & Supp. IV (2010). This response is limited to those records that are subject to the requirements of the FOIA. This
is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records
do, or do not, exist.
Certain information in the requested records is being withheld from disclosure pursuant to the exemptions described in
and for the reasons stated in Part II.
This determination may be appealed within 30 days by writing to the FOINPA Officer, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001 . Clearly state on the envelope and in the letter that it is a “FOINPA Appeal.”
PART l.C COMMENTS ( Use attached Comments continuation page if required)
The incoming FOIA request will be available in ADAMS at ML13127 A295. Records with an ML accession number are available in
the NRC Library at w’Ww.nrc.gov/reading-rm/adams.html. For assistance in obtaining any public records, please contact the NRC’s
Public Document Room (PDR) at 1-800-397-4209 or by e-mail at [email protected]
Items I, 11 and 12 of your request will be addressed in a later response. Please note that items 4 and 9 of your request are duplicates.
NRC FORM 464 Part II
(4-2011)
U.S. NUCLEAR REGULATORY COMMISSION FOIA/PA DATE
RESPONSE TO FREEDOM OF INFORMATION
ACT (FOIA) I PRIVACY ACT (PA) REQUEST
2013-0239 JUN 1 0 20’3
PART II.A — APPLICABLE EXEMPTIONS

APPENDICES I Records subject to the request that are described in the enclosed Appendices are being withheld in their entirety or in part under the
._A_ __· _ _. Exemption No.(s) of the PA and/or the FOIA as indicated below (5 U.S.C. 552a and/or 5 U.S.C. 552(b)).
D
D
D
Exemption 1: The withheld information is properly classified pursuant to Executive Order 12958.
Exemption 2: The withheld information relates solely to the internal personnel rules and practices of NRC.
Exemption 3: The withheld information is specifically exempted from public disclosure by statute indicated.
D
D
D
Sections 141-145 of the Atomic Energy Act, which prohibits the disclosure 9f Restricted Data or Formerly Restricted Data (42 l,J .S.C.
2161-2165).
Section 147 of the Atomic Energy Act, which prohibits the disclosure of Unclassified Safeguards Information (42 U.S.C. 2167).
41 U.S.C., Section 253b, subsection (m)(1), prohibits the disclosure of contractor proposals in the possession and control of an executive
agency to any person under section 552 of Title 5, U.S.C. (the FOIA), except when incorporated into the contract between the agency and
the submitter of the proposal. D Exemption 4: The withheld information is a trade secret or commercial or financial information that is being withheld for the reason(s) indicated. D The information is considered to be confidential business (proprietary) information. D The information is considered to be proprietary because it concerns a licensee’s or applicant’s physical protection or material control and
accounting program for special nuclear material pursuant to 10 CFR 2.390(d)(1). D The information was submitted by a foreign source and received in confidence pursuant to 10 CFR 2.390(d)(2). O Disclosure will harm an identifiable private or governmental interest.
D Exemption 5: The withheld information consists of interagency or intraagency records that are not available through discovery during litigation.
Applicable privileges:
D
0
D
D
D
Deliberative process: Disclosure of predecisional information would tend to inhibit the open and frank exchange of ideas essential to the
deliberative process. Where records are withheld in their entirety, the facts are inextricably intertwined with the predecisional information.
There also are no reasonably segregable factual portions because the release of the facts would permit an indirect inquiry into the
predecisional process of the agency.
Attorney work-product privilege. (Documents prepared by an attorney in contemplation of litigation)
Attorney-client privilege. (Confidential communications between an attorney and his/her client)
Exemption 6: The withheld information is exempted from public disclosure because its disclosure would result in a clearly unwarranted
invasion of personal privacy.
Exemption 7: The withheld information consists of records compiled for law enforcement purposes and is being withheld for the reason(s)
indicated.
D
D
(A) Disclosure could reasonably be expected to interfere with an enforcement proceeding (e.g., it would reveal the scope, direction, and
focus of enforcement efforts, and thus could possibly allow recipients to take action to shield potential wrong doing or a violation of NRC
requirements from investigators).
(C) Disclosure could constitute an unwarranted invasion of personal privacy.
D (D) The information consists of names of individuals and other information the disclosure of which could reasonably be expected to reveal
identities of confidential sources. D (E) Disclosure would reveal techniques and procedures for law enforcement investigations or prosecutions, or guidelines that could
reasonably be expected to risk circumvention of the law.
[{] (F) Disclosure could reasonably be expected to endanger the life or physical safety of an individual. O OTHER (Specify)
I
PART 11.B — DENYING OFFICIALS
Pursuant to 10 CFR 9.25(g), 9.25(h), and/or 9.65(b) of the U.S. Nuclear Regulatory Commission regulations, it has been determined
that the information withheld is exempt from production or disclosure, and tnat its production or disclosure is contrary to the public
interest. The person responsible for the denial are those officials identified below as denying officials and the FOIA/PA Officer for any
denials that may be appealed to the Executive Director for Operations (EDO).
DENYING OFFICIAL TITLE/OFFICE RECORDS DENIED APPELLATE OFFICIAL
EDO SECY IG
Victor McCree Regional Administrator See Appendix A-8 0 D D
Eric 1. Leeds Director, NRR See Appendix A-1,3,5,6,7 0 D D
D D D
Appeal must be made in writing within 30 days of receipt of this response. Appeals should be mailed to the FOIA/Privacy Act Officer,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, for action by the appropriate appellate official(s). You should
clearly state on the envelope and letter that it is a “FOIA/PA Appeal.”
NRC FORM 464 Part II (4-2011)
/
Re: FOIA-2013-0239
APPENDIX A
RECORDS ALREADY AVAILABLE IN THE PDR
NO. ACCESSION NO. DATE DESCRIPTION/(PAGE COUNT)
1 ML 13039A086 07/19/10 Memorandum to Benjamin Beasley, RES from Lois
James, NRR, Subject: Identification of a Generic
External Flooding Issue Due to Potential Dam
Failures (9 pages) Exemption 7F
2 ML 13039A084 03/15/10 Generic Failure Rate Evaluation for Jocassee Dam
(15 pages) Exemption 7F
3 ML 13106A168 04/27/09 Non-Concurrence Process on Evaluation of Duke
September 26, 2008 Response Related to External
Flooding at Oconee (19 pages) Exemption 7F
4 ML 101610083 06/03/10 Oconee Nuclear Station – External Flood
Commitments (5 pages)
5 ML 12363A132 08/15/08 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 (5 pages) Exemption 7F
6 ML 12363A 129 09/26/08 Oconee, Units 1, 2, and 3 – Response to 10 CFR
50.54(f) Request (33 pages) Exemption 7F
7 ML 12363A133 04/30/09 Oconee Nuclear Station Units 1, 2, and 3,
Evaluation of Duke Energy Carolina September
26, 2008, Response to 10 CFR 50.554(f), Letter (5
pages) Exemption 7F
8 · ML 13099A247 04/29/11 Oconee Nuclear Site, Units 1, 2, 3, Response to
Confirmatory Action Letter (CAL) 2-10-003
(16 pages) Exemption 7F
Attachment D
(pages 2 – 32 omitted)
2 pages
(not including this cover page)
DDuke
rOEnergy •.
DAVE BAXTER
Vice President
Oconee Nuclear Station
Duke Energy