ML19329F712
| ML19329F712 | |
| 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 8007100634 | |
| Download: ML19329F712 (9) | |
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, P.RDD, &lWL, f& BD-3N/,930 LETITED STATES OF MERICA ATO:HC ETERGY ComISSION THIS DOCUMENT CONTAINS ATomC SAFETY ATID LICEISEIG BOARD POOR QUAUTY PAGES In the matter of
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Docket Nos. 50-329 COUSUIERS POWER COMPANY
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50-330
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(Midland Plant, Units 1 and 2)
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Order with Respect to Documents as to Which Privilege Is Claimed by AEC Staff.
The first question to be decided is sincther the privilege is properly claimed.
If not, the documents must be furnished.
If, however, the privilege is properly claimed, the Board must decide uhether the person recuesting the documents has established his need for the docunents cnd their relevancy to the issues, and if so, whether the production would be contrary to the public interest or adversely affect the rights of any person.
The procedure followed by the._taff in this case was to send all documents as to which privilege was claimed to the Board and to give to intervenors only a. description of the documents by cate-cory. The Doard notes that this procedure, although it does seca 1
to comply with the regulations, puts the initial burden on the Eocrd
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of deciding need and relevance, cnd makes it difficult for the N
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" Subject to the provision of 10 CFR 2.7h4(e).
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A person seeking 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 in_ toto.
The Board has examined the docu=ents and finds that with a few possible exceptions they are'" internal working papers" within the meaning of 10 CFR 2.4 (o), and, therefore, exempt from disclosure except in accordance with 10 CFR 2.744 (d). The only possible ex-ceptions are letters and reports to and from Commission consultants; it is not cicar to the Board that the reasons which support the withholding of intra-agency or inter-ccency reports also support the withholding of communications.with consultants. However, since the Board feels that these docu=ents should be disclosed in any event, it does not reach that question.
Turning to the question of whether the documents, although within the class of internc1 working papers, should te disclosed, the Board has found the decision difficult.
"Need" and " relevance" and "public interest" are clastic concepts.
In balancing the various considerations, the Board hcs been mindful that the prolifer-ation of interventions in licensing proceedings is a reflection of frustration on the pc.rt of many members of the public' that the public voice is being inadequately considered. However ill-founded that L
7 3-feelin6 may be, it sects cicar 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 relevance too narrowly. For exemple, 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."
UcVertheless, the Board feels that these documents should be dis-
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closed.
Accordingly, the Board is of the view that all of the documents withheld are relevant and needed; and, further, that the production of these documents would not be contrary to the public interest, except in the following cases:
A.
AEC -- ACFS documents.
These include reports by the staff to the ACPS, drafts of re-ports, memoranda of ACPS conferences and agenda of ACPS meetings. The Board is of the view that the ACPS review is uniquely dependent on in-formal cccmunication 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 unich are public records, and questions which are not specifically raised e
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_y in their reports are reflected in the questions raised by the staff.
In the circumstances the public interest clearly out-weighs the need of the intervenors. Documents in this group include the follo: ring:
13 Letters dated November 12, 1970; September 11, 1970; August 10,1970; June 5,1970; May 6,1970,; March 6,1970, from Peter Morris to Joseph Hendrie with the attached Reports to ACRS.
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 Muller and attached materic1 for inclusion in ACRS report.
4]
Memo dated February 12, 1970 from Dromerick to Muller and attached material for inclusion in ACRS report.
5]
Memo dated February lo, 1970 from DeYoung to Muller and attached materici for inclusion in ACRS report.
6]
Memo dated February 4,197o from Dromerick to nuller, and attached material for inclusion in f.CRS report.
7]
Memo dated 1Joruary 2,1970, from Rosen to Muller end attached materici for inclusion in ACRS report.
8]
Memo dated Februar'y 18, 1970, from A11enspac to Murphy, and attached materici for inclusion in ACRS report.
93 Agenda for ACES meeting dated April 15, 1970.
10] Memo dated April 27, 1970 from DcYoung' to Morris, being a report on the ACES subcommittee meeting.
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7 11] Memo dated May 15, 1970, Case to4brris and attached list of questions.
12]_ Memo dated April 25,1%9 from 1brris to several people re Review Plan.
13]
Memo dated October 21,1%9 from Boyd to 1brris (but not the attached meno from Muller).
14] Memo dated October 23,1%9 from Fbrris to Beck.
15] The second and third paragraphs of the memo of Decc=ber 2,1968 from Muller to DeYoung.
B.
Communication bettt6en the staff and the Co= mission.
These communications do not contain information not available elsewhere, and in view of the need to preserve open communications by the staff to the Commission, the claim will be sustained.
Documents in this group include the follotrira:
1] Memo dated November 21, 1968, Beck to Commissioners, and attached memo of telephone confsrsation.
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 Price to Commissioners with attached memo to files.
4]
Meco dated October 10, 1968 from Deck to Commissioner::.
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Memo dated September 16, 1968 from Price to Commissioners 6)
Draft memo dated September 11,1968 by'1Testern of Price memo to Commissioners.
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7] Memo dated July 23, 1968, Price to Commissioners.
8] Memo dated July 27, 1970, Price to Concissioners.
9] Memo dated February 25, 1970, Price to Commissioners.
C.
Miscellaneous.
Consistency with the decisions on questions involving confi-dentici communications in part II, below require sustaining the claim of privilege with respect to the following documents:
ll The second paragraph of item "1" in the meno dated January 30, 1970 from Cardone to Howe.
2)
Memo to files dated November 15, 1968 from Forrest Western.
D.
Documents troduced but with some of the contents deleted.
Consistently with the policy set forth in Section A above, the Board believes that the entire document should be produced in all cases except the followif9 :
3 1] Memo dated January 19, 1969 from Dromerick to verris.
The material deleted pertains to other facilities and is not role-vant to this proceeding.
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Memo to Files from Cunnin6 am dated May 12, 1970.
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material in the first deleted para 6raph on p.1 of the memorandum was appropriately deleted as based upon confidential communication.
31 Memo dated December 9, 1908 from Hale t'o'Boyd.
The material in the second and third deleted para 6raphs on p. 2 was appropriately deleted as based on confidential communications.
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Before this order becomes final, the Director of Regulation may object to the production of any documents on the grounds specifiedin10CFR2.7W(c).
If he does object, his objection will be certified to the Atomic Safety and Licensing Appeal Board for decision.
In view of the time schedule for this pro-ceeding, it is hoped that a prompt determination trill be made, and that any documents as to which no objection is to be made trill be promptly released.
For the Atomic Safety & Licensing Board
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's May 19, 1971 Arthur W. Murphy, Chairman,,'
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UIIITED STATED OF AIMlICA ATOMIC EEERGY COMMICCIOII In the Matter of
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COIISi&ER3 POWER COMPAliY
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Docket Ho. 50-329, ?30 (Midland Plant, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of the Order with Respect to Documents as to Uhich Privilege Is Claimed by AEC Staff datc6 May 19, 1971 in the captioned matter have been served on the followin6 by deposit in the thiited States mail, first class or air mail, this E5th day of May l'j71:
Arthur W. Murphy, Esq., Chairman Michard G. Umith, Esq.
Atomic Safety and Licensing board Smith & brooker, P. C.
Columbia IJniversity School of Lav 703 Unshincton Avenue Fox 3d Eay City, Michigan hd706 h 5 West ll6th Street 3
New York, New York 10027 Harold P. Graves, Esq.
Vice President and General Dr. Clark Goodman Counsel Professor of Physics John'K. Restrick, Esq.
IJhiversity of Houston Consumers Power Company 3301 Cullen Boulevard 212 West Michigan Avenue Houston, Texas 77004 Jackson, Michigan h9201 Dr. David E. Itall Mr. R. C. Youngdahl Ios 'slamos. Scientific Iaboratory 3enior Vice President P. 0 box 1663 Consumers Power Coinpany Ion Alamos, rev Mexico 87544 P12 Went Michigan Avenue Jachen, Michigan h9201 Dr. Stuart G. Forbes 100 Tennessee Avenue, Apt. 37 Honorable Frank Olds, Chairman Redlands, California 92373 Midland County Board of Supervisors Thomas F. Engelhardt, Esq.
623 Gt. Charles street David E. Kartalia, Esq.
Midland, Michigan hd6ho Regulator'/ Staff Counsel i
U. S.-Atomic Energy Commission Honorable Jerome Naslovski Washington, D. C. 205h5 Assistant Attorney General State of Michigan Robert Lovenstein, Esq.
6 0 Seven Story Office Tuilding 3
Jerome E. Sharfman, Esq.
525 Uest Ottava Lovenstein and Hevman Lansing, Michigan h8913 1100 Connecticut Avenue Unshington, D. C. 20036, H. W.
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m 50,329,-330 page a Honorable Curtis E. Beck Assistant Attorney General Dr. Wayne E. North, Chairan State of Michigan Midland nuclear Pover Ccmmittee 6 0 Seven Story Office Building P. O. Box '35 3
525 West Ottava Midland, Michican hMh0 Lansing, Michigan 48913 Mtiton R. Uescel, Enq.
Honorable Patrick E. Kovaleski Allen Dezcbom, Esq.
Assistant Attorney General Kaye, Scholer, Flerman, Hays State of Michigan and Handler 6 0 3even Story Office Building 425 Park Avenue 3
525 West Ottava Hey York, New York 10022 Lansing, Michigan 48913 Uilliam A. Groening, Jr., Esq.
Pyron M. Cherry, Esq.
Jamen H. 0 'Connor, Enq.
McDermott, Will & Emery The Dow Chemical conneny 111 West Monroe Street 2030 Dov Center Chicago, Illinois 60603 IIidland, ruchircn 4%L0 Anthony Z. Roicman, Esq.
Gladys 1:cusler, Esq.
Berlin, Roisman & Kessler 1:crlin, Roicman & Keccler 1910 !! F2treet, H. II.
1910 N Street, U. '.
d Unchington, D. ;. 20036 Uachington, b. G. I'W:5
. Tames A. Kendall, Esq.
Edvard Perlin, Ecq.
Currie and Kendall Terlin, 'oisman & Eecalec 135 Ucrth Sa61nav Road 1910 !i Street, K.
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Midland, Michigan h86ho Vachington, D. C. 20036 Mr. ~lendell H. Marshall ililliam J. Gincter, Esc.
RFD No.10, !!apleton Cuite h, :/.crrill Foildinr IM61nnA, I:tchican 40640 Sncinav, :.Mehican hYor hb Office of the Secreter / of the Co
> t e-1 scion ec: I:r. Murphy Mr. En6c1hardt fir. Uclls i!. Brown H. Smith e
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