ML19329F594
| ML19329F594 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 05/19/1971 |
| From: | Murphy A Atomic Safety and Licensing Board Panel |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 8007020738 | |
| Download: ML19329F594 (7) | |
Text
aQ'
~
P.f0D. & lWL, D-3A'/)J'30 O..
g-f GIITED STATES OF MERICA ep h'^,,
ATO:!IC EIERGY COI2!ICSION i L 'Y ATOMIC SAFETY AND LICEliSHIG BOARD In the matter of
)
)
Docket Nos. 50-329 COI!SGERS PO'iER COMPAtTf
)
50-330 N
-/ !
(Midland Plant, Units 1 and 2)
)
vith Respect to Documents as to Which Priviler e Is Claimed by AEC Staff.
The first question to be decided is sinether the privilege is X-properly claimed.
If not, the document:: must be furnished.
If, however, the privilecc is properly c1 cited, the Bocrd must decide tfacther the person requesting the documents has established his need for the documents and their releva.ncy to the issues, and if so, whether the production would be contrary to the public interest or advoracly affect the rights of any person.
The procedure followed by the ataff in this use ucs to send all documents as to which privilege was c1cimed to the Board and to give to intervenors v.'ly a description of the documents by cate-Cory. The Docrd notes that this procedure, although it does seem to comply with the regulations, puts the initici burden on the Eocrd of decidinc need and relevance, cnd makes it difficult for the THis DOCUMENT CONTAINS P00R QUAUTY PAGES g
S C:0
'3
- c ;;
Subject to the provi:: ion of 10 CFR 2.7%(e).
k-
%.9 1.,..-
~
tr out? a j l')71 L, "3 0 0 0 70 2 0 )} h f0 j
?
1 n t 1
...._t 4
- e person scehing the documents to make a showing of need. The Board does not feel that intervenors have been prejudiced in this case but does note that the procedure followed creates what may be un-necessary complications.
I.
As to documents withheld,i_n toto.
n The Board has exa=ined the docunents and finds that with a few possible exceptions they are " internal working papers" uithin the meaning of 10 CFR 2.4 (o), and, therefore, exempt from disclosure except in accordance trith 10 CFR 2.7h4 (d).
The onl possible ex-
- ccptic, are letters and reports to and from Comission consultants; it is not clear to the Bocrd that the reasons which support the trithholding of intra-accacy or inter-agency reports also support the withholding of com=unications with consultants. However, since the Board feels that these documents should be disclosed in arrf event, it does not reac.h that question.
=
Turning to the question of whether the documents, although l
within the class of internal wrking papers, should te disclosed, the Board has found the decision difficult.
" Hood" and "rcicvance" and "public interest" are clastic concer's.
In balancing the various considerations, the Board has been mindful that the prolifer-ation of interventions in licensing proceedings is a reflection of frustration on the part of many members of the public' that the public voice is being inadecuately con::idered. However ill-founded that
i
- > -- ~
Q
.r.
._s 3-feeling may be, it seems clear that denial of access to documents, except for good reason, will only enhance the frustration. Accord-incly, the Board should not, in our view, construe the requirement of need or relacnce too narrowly. For example, many of the docu-monts withheld relate to the effects on Dow products of the use of process steam under the earlier proposal for a " secondary" steam-supply system. The substitution of a tertiary system makes much of the earlier consideration moot and perhaps " unnecessary."
Iievertheless, the Board feels that these documents should be dis-closed.
Accordingly, the Board is of the view that all of the documents withheld are relevant and ".acded; and, further, that the production of these documents would not be contrary to the public interest, except in the following cases:
A.
These include reports by the staff to the ACES, drafts of re-ports, menoranda of ACES conferences and agenda of ACRS meetings. The Board is of the view that the ACES revdew is uniquely dependent on in-formal communication of views and that its functioning would be materially impaired -- with serious injury to the public interest --
- if documents of this kind were made available.
- The substance of the ACRS position on these reactors is contained in their reports which are public records, and questions which are not specifichily raised 4
e t 6
w 3',
T
_y4
__-r w.
- ** < ~
C>
.4-in their reports are reflected in the questions raised by the staff.
In the circumstances the public interest cicarly out-vei hs the need of the intervenors. Documents in this group 6
include the fo11owin6:
1]
Letters dated November 12, 1970; Septe=ber 11, 1970; August lo,1970; June 5,1970; May 6,1970; March 6,1970, from Peter Morris to Joseph Hendrie with the attached Reports to ACES.
2]
Letters dated January 24, 1969; January 8,1969 from Morris to Stephen Hanauer, with attached Reports to ACRS.
3] Memo dated February 12, 1970 from Moore to Muner and attached materini for inclusion in ACRS report.
4] Memo dated February 12, 1970 frem Dromerick to Muller and attached material for inclusion in ACES report.
5] Memo dated February 10, 1970 from DeYoung to Muller and attached materini for inclusion in ACPS report.
6] Memo dated February 4, 1970 from Dromerick to Muller, and attached materici for inclusion in ACRS reparo.
7] Memo dated February 2,1970, from Rosen to Muller and attached material for inclusion in ACES report.
8] Memo dated February 18, 1970, from Auenspac to Murphy, and attached materici for inclusion in ACRS report.
9] Agenda for ACES meeting dated April 15, 1970.
lo] Memo dated April 27, 1970 from DcYoung to Morris, being a report'on the ACES subcommittee meeting.
6 s_
8
.-ee
.e4
)
5-11]
Memo dated May 15, 1970, Case to Morris and attached I
list of questions.
12]
Memo dated April 25, 1% 9 from Morris to severci people re Review Plan.
13]
Memo dated October 21,1%9 from Boyd to Morris (but not the attached memo from Muller).
14]
Memo dated October 23,1%9 from Ibrris to Beck.
15]
The second and third paragraphs of the meno of December 2, 1968 from Muller to DcYoung.
B.
Cerx:tunication between the staff and the Commission.
These comunications do not contain infomation not available elsewhere, and in view of the need to preserve open communications by the staff to the Coc: mission, the claim vill be sustained.
Documents in this group include the follouing:
1]
Memo dated Hovember 21,1%8, Beck to Commissioners, and attached memo of telephone conf 6rsation.
2]
Memo to files dated November 6,1%8, September 17, 1968 and September 19, 1968, by W.B. McCool Secretary of the Commission.
3]
Memo dated October 31, 1968 from Prico to Commissioners vith attached memo to files.
b]
Memo dated October 10,1%8 from Deck to Co=missioners.
5)
Mcmo dated Septc=ber 16, 1968 from Price to Commissioners 6]
Draft memo dated September 11, 1968 by Western of Price memo to Commissioners.
c
" ~ ~ " ' '
~~
,, g _
s 7] Memo dated July 23, 1968, Price to Comissioners.
~
~
8] Memo dated July 27, 1970, Price to Commissioners.
9] Memo dated February 25, 1970, Price to Commissioners.
C.
Miscellaneous.
Consistency with the decisions on questicus involving confi-dentici communications in part II, below require sustaining the claim of privilege with respect to the following documents:
- 1) The second paracraph of item "1" in the memo dated January 30, 1970 from Cardone to Howe.
2]
Memo to files dated November 15, 1968 from Forrest Western.
D.
Documents produced but with some of the contents deleted.
Consistently with the policy set forth in Sectica A above, the Board believes that the entire document should be produced in all cases except the followif9 :
3 13 Memo dated January 19, 1959 from Dromerick to vorris.
The material deleted pertains to other facilities and is not role-vant to this proceeding.
23 Memo to Files from Cunningham dated May 12, 1970. The material in the first deleted para 6raph on p.1 of the memorandum was appropriately deleted as based upon confidential com: -it stion.
33 Memo dated December 9,1908 from Hale to Boyd.
The material in the cocond and third deleted para 6raphs on p. 2 was appropriately deleted as based on confidential cot:munications, l
l
-c. -
9..
Before this order becomes final, the Director of Regulation may object to the production of any documents on the grounds specified in 10 CFR 2.7%(c).
If he does object, his objection will be certified to the Atomic Safety and Licen::ing Appeal Board for decision. In view of the time schedule for this pro-ceeding, it is hoped that a prompt detemination tdll be made, and that any documents as to which no objection is to be made will be plomptly released.
For the Atomic Safety &. Licensing Board l
, j;-, ('
, <. s.,
o May 19, 1971 Arthur W. Murphy, Cncimanp' 1
h e