ML19329F607
| ML19329F607 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/03/1971 |
| From: | Woodard W NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 8007030382 | |
| Download: ML19329F607 (15) | |
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UNITED STATES OF AMERICA 4
ATOMIC ENERGY CO>DtISSION DOCKt1ED l
ATOMIC SAFETY AND LICEUSING APPEAL BOARD:
3 gg Algie A. Wells, Chairman SEP3 137I ' N
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Dr. John H. Buck 0a-ot'M N' "I Dr. Lawrence R.'Quarles 6
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N IN THE MATTER OF
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3 CONSUMERS POWER COMPANY
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DOCKET NOS.
50-329 (Midland Plant, Units 1 and 2)
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50-330
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MEMORANDUM 1/
The Atomic Safety and Licensing Board in this proceeding
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under date of June 22, 1971, certified to the Appeal Board the following questions arising out of a request for production of Atomic Energy Commission records and documents filed by the Saginaw Valley Nuclear Study Group, intervenors in the proceeding before the Licensing Board:
1 I.
Do the regulations preclude the disclosure of documents l
which are found to be privileged?
II.
Would the disclosure of the documents, in accordance with the Board's order, be contrary to the public interest?
III.
Does the FreeJom of Information Act require the production of those documents as to which the Board denied disclosure?
(The Licensing Board commented that if the answ r to this question is in the affirmative, then the same question would have to be answered as to the documents covered in question II.)
1/ The proceeding before the Licensing Board is to consider whether a permit should be issued to the applicant, Consumers Power Company, to construct Units 1 and 2 of a nuclear generating plant at Midland, Michigan.
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Before responding to these questions, we summarize the background.
Following the request for documents by the intervenors, the regulatory staff made available to the intervenors a substantial number of documents which it did not regard as privileged.
These included documents upon which the staff relied in preparing its Safety Evaluation, and copies of 2/
AEC Division of Compliance inspection reports for the Midland Plant.
In addition, a large number of documents were already available to the o
public in the Public Document Room.
By letter dated April 29, 1971, the staff transmitted to the Licensing Board for h camera inspection the remaining documents which had been requested.
Some of these documents had been withheld h toto from intervenors on the basis of a claim of privilege; the others had been furnished with deletions claimed to be authorized by the Commission's
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regulaeions.
By crder dated May 19, 1971, the Licensing Board found, with respect to the documents withheld _i_n toto, that documents falling within the i
n following categories need not be disclosed:
(1) documents pertaining to the Advisory Committee on Reactor Safeguards (ACRS), including reports, draft reports, memoranda of meetings, etc.; (2) communications between the staff and the Commission; and (3) certain miscellaneous documents involving confidential communications between staff members.
The Board held that the remainder of the documents identified by the staff as being exempt from disclosure should be produced.
In doing so, it acknowledged that most of those documents were " internal working papers" and, hence, privileged.
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See Answer of AEC Regulatory Staff to Motion of Intervenors, dated January 19, 1971 See also letter from AEC staff counsel to intervenors' counsel, dated April 9, 1971.
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m-1 3-(The Licensing Board felt that certain letters and reports to and from Commission consultants should be disclosed whether privileged or net, and consequently did not reach the question of whether those documents were in fact privileged.) The Board, in general, took the position that access to documents should not be denied "except for good reason" and concluded that the staff had not made such a showing with respect to those documents.
As to the documents which were forwarded to the intervenors with deletions, the Licensing Board followed a similar policy and ruled that, with certain designated exceptions (relating to material not relevant to the proceeding, or to confidential communf cations between staff members), portions of records deleted by the staff should be restored and produced.
By memorandum dated May 28, 1971, the intervenors objected to the withholding of the documents and information within the categories which the Licensing Board permitted to be withheld.
Their ground for this con-i i
tention was that the Freedom of Information Act required such disclosure and that the Commission's regulations must be interpreted in a manner not
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inconsistent with the Freedom of Information Act.
The staff, by letter dated June 18, 1971, advised the Licensing Board that, pursuant to the provisions of 10 CFR 52.744(e), the Director of Regulation objected to the production of records and documents ordered to be produced by the Licensing Board, on the a+' tei grounds that:
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The relationship of the Freedom of Information Act to $2.744 of the Commission's regulations is discussed in Part III of this Memorandum.
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The records and documents are, in fact, internal working papers or records or documents of the type specified in 10 CFR $9.5 and thus privileged under 10 CFR $2.744(c); and 2.
As privileged records and documents, their production would be contrary to the public interest.
The staff also advised the Licensing Board that pursuant to 10 CFR
$2.744(b), the Director of Regulation objected to the release of information
.,o which had been deleted from various documents, on the ground that such deletions are authorized pursuant to 10 CFR $2.744(b)(1) through (5).
Since the Licensing Board believed that the documents should be disclosed and the deletions restored, as indicated in its May 19, 1971 order, it certified the above three questions to the Appeal Board.
Following such refertal, the staff, on July 7,1971, transmitted copies of the documents which were the subject of the certification to the Appeal P;ard.
By letter dated August 25, 1971, to the Appeal Board, the staff stated that it " elected to waive its claim of privilege" with respect A/
to six of the documents, and with regard to the other documents described the considerations underlying the Director of Regulation's determination j
l that their production would be contrary to the public interest.
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These six documents were copies of Commission letters requesting the services of consultants in connection with the staff's review of the application for licenses for the Midland Plant.
Five were addressed to other Government agencies, and the sixth was directed to a private consulting firm.
In waiving its claim of privilege, the staff commented that, in its view, none of the documents was needed.by the intervenors or relevant to an issue in the proceeding.
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5 I.
Do the regulations preclude the disclosure of documents which are found to be privileged?
For reasons set forth below, we conclude that Commission regulations do not preclude the disclosure of documents or parts of documents which are found to be privileged.
In Licensing Board proceedings,-the production of AF.C records and documents is governed by the rules appearing in 52.744 of the Commission's Rules and Regulations.
(The provisions of 10 CFR 52.744 are reproduced as e,pendix A to this Memorandum.)
These rules, as applied to a licensing proceeding, permit the Licensing Board to require that relevant documents, as a general rule, be produced upon request by the moving party.
Two categories of documents, however, are subject to production only in accordance with specified conditions. The first of the categories includes documents falling within the purview of 10 CFR $2.744(b) -- i.e., inspection reports j
or other records the basic purpose of which is to record matters of fact relating to license applications or licensed activities.
These documents must be produced upon a showing of need and relevancy, if the information is not otherwise available, but certain specific information may be deleted.
By contrast, documents of the type described in $2.744(c), which comprise,
the second special category -- i.e., internal working papers and other documento exempt from public disclosure under the provisions of 10 CFR 59.5 --
i are required to be produced onl~y in accordance with the procedures appearing in 10 CFR 52.744(d) and (e).
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1 4 When.a document falls within a category privileged under the provisions af 10 CFR 52.744(c), a party, under 52.744(d) may apply for production of such a privileged document by setting forth his need fcr such document and its relevan f to the issues in the proceeding.
The documents are then pro-duced for the in camera inspection of the Board, so that it may determine (1) need for and relevancy of the records and documents; (2) whether the records and documents are, in fact, privileged; and (3) whether the production of such records or documents would not be contrary to the public interest and I
would not adversely affect the rights of any person.
If a Licensing Board determines under this section that documents should be released, the Director of Regulation may, under 52.744(e), object to the Licensing Board's determination on the ground that (1) need for and relevancy of the records and documents has not been shown; or (2) the records and documents are, in fact, privileged; or (3) that, if so, the production of the records and documents would be contrary to the public interest or would adversely
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affect the rights of a person or persons. Upon such objection, the Licensing Board must certify the matter to the Appeal Board for determina-tion.
It is our opinion that, with respect to privileged documents, coc. sider-ations of need, relevancy and the public interest must be taken inco account in resching a decision as to whether the documents should be produced. The fact that documents or records are in fact privileged does not necessarily establish-that their production would be contrary to the public interest.
We note, however, that 52.744(e) requires that the Licensing Board, the Appeal Board and the Commission accor<1 great weight to any obje,ction to production I
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I by the Director of Regulation, in view of his knowledge of the adverse effects of production on the effective performance of AEC programs and his responsib'.1hy for the effective performance of those programs.
Documents as to which some of the contents have been deleted present an additional dimension to the above discussion.
These documents are inspection reports or similar documents which are specifically dealt with under $2.744(b) of the regulations. 'Under that section, the Commission has specifically decided that inspection reports and similar documents will be produced upon a determination of need and relevancy by the Licensing Board, if the facts recorded therein are not otherwise available to the 1/
moving party. Five categories of information are to be deleted from docu-ments of this type. With such deletions these documents are specifically treated as non-privileged and not within the scope of the protective pro-j visions applicable to privileged documents under $2.744(c).
i If a claim is made for restoration of the deleted material or if the l
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deleted material is ordered by a Licensing Board to be produced, the deleted portions which are in dispute are, in our opinion, treated the some as documents privileged under $2.744(c).
The specific exclusion in paragraph (c) of documents of the type described in paragraph (b) only applies to the bxtent that the' documents, with material deleted, are considered non-privileged. -
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See Appendix A.
Provision is made for certification to the Appeal Board of questions whether need for and relevancy of the reports, records and documents have been shown, or whether the documents are within the categories of inspection rcports and similar documents covered by $2.744(b), or that certain material shculd be deleted.
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r' (If this were not true, there would be no means for a party to obtain review of a decision by a Licensing Board that certain material properly has been deleted.) Therefore, with respect to the deleted information, the diselosure provisions of S'2.744(d) and (e) are applicable, and production of the deleted material may be re.: ired if it is necessary and relevant to the proceeding and if its production would not be contrary to the public interest and would not adversely affect the rights of any person.
The mere fact that deletions are of the type authorized by S2.744(b) is act conclusive es to whether the information should be produced under $2.744(d) and (e).
Would the disclosure of the documents, in accordance with II.
the Board's order, be contrarv to the cublic interest?
Disclosure of the presently withheld documents would, in our opinion, be contrary to_the public interest.
Before setting forth our reasons, we wish to point out that in reaching this conclusion we have been mindful of our opinion, discussed under question I, that Commission regulations do not, under all circumstances, preclude the disclosure of privileged documents.
In this case, however, we have concluded that the public interest considerations dictate that the documents in question be withheld from disclosure. There was no formal showing by the intervenor of relevancy or need. We note in this connection that the regulatory staff waived 1/
such requirement.
We also note that there was no public interest shouing before the Licensing Board, beyond the bare statement by the staff that l
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Answer of AEC Regulatory Staff to Motion of Intervenors Saginaw Valley Nuclear Study ' Group, et al., dated January 19, 1971, at p. 4.
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"as privileged records and acuments, their production would be contrary
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to the public interest.'
Subsequently, however, the regulatory staff l
supplemented the record on the "public interest" question by its letter 8/
to the Appeal Board of August 25, 1971.
As described below,' we find the considerations reficceed in that letter to be persuasive.
In its August 25, 1971 letter, the staff spelled out the reasons
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why, in the opinion of the Director of Regulation, disclosure of the documents as to which privilege had not been waived would be contrary to the public interest. The letter stated:
"The withheld documents record the development of the staff's position en the application that is the subject of this pro-ceeding.
They reflect a process in which many individuals participate, each of whom is free and indeed encouraged to contribute opinions, recommendations, advice, evaluations and analyses at any stage of the staff's review of the application.
They reflect, also, a process which ultimately resolves and coordinates these various inputs through further analysis and evaluation.
i "The effectiveness of this process depends in large measure on full, complete and candid communication among the participants in the process.
To expose such communication in this case to public inspection would inhibit similar communication in the future, since participants in the review process would communi-cate with foreknowledge that their reports, memoranda and notes are subject to public disclosure."
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AEC staff letter to Licensing Board, dated June 18, 1971.
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The note to paragraph (f) of 52.780 on ejg carte communications provides that matters certified to the Atomic Safety and Licensing Appeal Board pursuant to 52.744 (b) and (e) are not deemed to involve substantive matters at issue in a proceeding.
Pursuant to that provision, the Director of Regulation's attention was invited by the Appeal Board to the fact that the basis for his determination that production of the documents in question was contrary to the public interest was not clear.
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. The letter also notes that such facts important to the health and safety determinations to be made in this proceeding as are intertwined with the views expressed in the withheld documents are set forth in other documents which are available to the parties.
We 1.ind, af ter examination of the presently withheld documents, that they are internal working papers, within the meaning of 10 CFR $2.4(o), and consequently privileged. We believe that the factors cited by the staff as a basis for the Director of Regulation's public interest finding in this proceeding constitute cogent and persuasive considerations which compel a conclusion, under the facts of this case, that production of these internal working papers would be contrary to the public interest.
The fact that some of these documents contain information which may be of little or no signifi-cance should not be a basis for their release, under circumstances there release might reasonably be expected to produce the adverse effects on the regulatory process cited by the staff, and where no compelling reason or need for disclosure has been presented. Accordingly, taking into account the " great weight" we are required to accord to the public interest finding of the Director of Regulation, we conclude that production of the wit.hheld documents in this proceeding would be contrary to the public interest.
With respect to documents which had been made available with deletions, we find that the deleted material, to the extent relevant to this proceeding, was properly withheld on the same basis.
(Deletions based on relevancy are discussed in this Memorandum under Question III.) *
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. III. Does the Freedom of Information Act require the production of those documents as to which the Board denied disclosure?
Since we have authorized the withholding of more documents than did the Licensing Board, we will answer this question with respect to all the documents, or portions of documents, as to which either the Licensing Board or the Appeal Board has denied disclosure.
In doing so, we will describa what we consider to be the relationship between the Freedom of Information Act and the Commission's rules and regulations governing the availability of AEC records and documents in a quasi-judicial proceeding.
The Appeal Board is of the opinion that information which is not relevant to a matter at issue should not be involved in the discovery aspects of a quasi-judicial proceeding. We view the Licensing Board's denial of access to certein information on grounds of relevancy to be on appropriate exercise of discretion under 52.744, whether or not such information apart from this licensing proceeding might be subject to disclosure under the Freedom of Information Act.
Turning now to the question of documents which are relevant to the matters at issue in this proceeding, we read the exemptions from disclosure in $2.744 as consistent with the exemptions from disclosure included in the Freedom of Information Act and in 10 CFR Part 9 of the Commission's regulations.
Indeed, Section 2.744 provides for the production of certain documents (those described in Section 2.744(b)) which might be considered as falling within a Freedom of Information Act exemption.
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On the basis of the foregoing, we conclude that --
(1) since production of documents which are not relevant should not be considered in the context of a quasi-judicial proceeding; and (2) since the relevant documents or portions thereof which have not been made available are validly withheld under 10 CFR 52.744 of the Commission's regulations because of persuasive public interest considerations,
--the production of these documents in this quasi-judicial proceeding is not required by the Freedom of Information Act.
ATOMIC SAFETY AN'D LICENSING APPEAL BOARD t
BY:
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'6T William L. Woodard Assistant Executive Secretary
Attachment:
Appendix A
" Production of AEC Records and Documents" Dated:
September 3, 1971 I
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APPENT)IX "A" (c) Internal workm papers and rey-(f) A ru!!ng by the presiding om ords and documents of the type specined the Atemic Safety and Licensing Apg in i D.5 of this chapter, including ISts, l'oard, or the Commission, for the gr M"">'en t o.T oiluction of AEC re or.l. anddigesta and summaries thereof and refer duction of AEC records and dccu'nen 6 2.7 f i ences thereto, but not,includ!ng reports. Will Epccify the tune, place and man:
records and documents desciibed in para-of production. Tiu presiding oflicer, t_
(a) AEC records and docu:nents, ex-graph (b) of this section,
- Vill be treated Atomic Safety cept internal working papers and other and L! censing Ap; c asprivileged dccuments and cxempt from Eonrd, or the Commissicn may mske at records of the type ethich are exempt
('selceure execpt in accordance with order which justice requires to prote frern pub!!c(!!sc!osure under 10.5 cf this paragraphs (d) and (e) of this section. against annoyance, embarrassment, s.
chapter, will be produced upon request (d) An application by a party to a oppression, for in.*pection and copying er photo-graphing.
proceeding for the production of AEC e:) NetwithstandM the provisions <.
records and dc.eumems described in par-Il 2.3 and 9.10(a) Of this chapter,in ar (b) An app!! cation by a party to a i agraph (c) ci this section rhall be ad-ccndict between there sections and an proceeding for the production of Cem.
mission ans;:cetien re:: orts and other
' dressed to the presiding of'icer in writ-other provision of this chapter th:s set
_. records and documents, the basic pur-ing and shall set forth the need of the, tion governs.
party for such records and documents
. po?e of which is to record matters of fact and the relevancy thereof to the issues relating to IIcente appheations or I! censed actNities, sha!! be addressed to the' pre-in the proceeding.Such applications shan siding onleer in writing and shall set forth be processed as motions in accordance with i 2.'T30 (a) throu~h (d) Records the need of the party for such dccuments and the relevancy thereof to the issues and documents covered by such applica-tions will be produced for the in camera in ' the proceedmg. Such applications inspection of the presiding 010cer exclu-shall be processed as motions in assord-sively and only to the extent necessary acce with 1 ::.730 (a) throu;;h (d).
.. Inspection reports and records and docu-to determine (1) need for and rcIcyancy of. the records and documents. (2) ments which are the subject of such ap.
, p!! cations w!Il be produced for the in whether the records and docu'ncnts are camera inspection of the presiding of"Icer in fact internal worhing papers or rec-ords or documents of the type specified Exclusively and only to the extent neces-in i 9.5 of this cha.'tcr ar'd thus privi-sary for the deterrnination of need and leged under paragtap:1 (c) of this scc-relevancy cf the rs;; orts. recordJ, and tion, and (3) V;he.her the production of documents, and. whether the reperts, a record or document privileged under records, and docum?nts are within the categorie: dcJerited in this para:raph, paragraph (c) wouId not be contrary to Upon a datermfrution of need and rele-the public interest and wouid not ad-vancy ty :he presiding o% lect, such in-versely n!Icet the rights of any person.
spec' Ion reports and such records and (e) Upon a determinction by the pre-documents vill be produced if the facts siding onicer that the moving party has reterded thr:!n ne not other vise avail-demonstrated need for and re!cvancy of aMc tJ the mo in patty. Procurion of the records and documents and that the s Ich rep 3rts, recorda and dt.cu.mnta will production of records and documents be subject to the de:ction of*
privilcacd under paragraph (c) of 1.his W Opin!'.,ns. evaluat.ons sna'yres, de-1 section would not be contrary to the pub-1i b c r a t i o n s, reccm:n,cndations or '
Ifc interest and would not adversely af-adtice; feet the rients cf any persen, the Gen-(0) Information give's in cordidence cral Manaccr or the Director of Regu!a-(whether speciScally 7.cn in contdence
} tion. Rs appropriate. Vill CLer author 1:'e or under circu:minnetz vihcic !: c Td be
} production of such r(cords and docu-a reasor! ably cc:'cluded that the info:rna-
' ments or state any obketjon to produc-tion was given in confiden ') and names tien. If the General Manaccr or the of individuals. other than AIC personnel, Director of Regu:ntion, as apprcpriate.
providing such conndential information; objects to authorizmg prMiucti0n ci such, records and cWuments en the ground (3) References to records and docu. l that (1) need for and reIctancy of the ments whfch may be Withheld from public l records and documents have not been di: closure; shown; or (2) the reccrds and docu.
(4) Infonnation of a proprietary na-ments are in fact internal wo^1ng papcrs i
i ture; and or records or documents cf th ype rpeci-(5) Other information* including i fled in ! 9.5 of this chaptcr and thus classified information, privileged under,
privileged under paragraph (c) of this
' f 9.5 of this chapter and/or paracraph 8
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(c) of this secticn..
production of the records and documents If the GeneralI.fanager or the D! restor would be contrary to the public interect Cf Regulation, as apptcptiate, objects to or would adversely affect the rights of a authorizing production of the reports, person or persons, the me.tter shall, prior records and documents en the ground to any suling ordering production there-of, be cortificd to the Commission or the that nced for and relevancy cf the reports, rceords, and document: have not Atomic Safety and Licensing Appeal -
i been shown, or that the reports, records Board, as apprcpriate. for determina-end documents are not within the cate-tion. In view of their knowledge of the cories described in this paragraph, or adverse elTects of production en the ef-that certain material should be udcted, fective performance of AEC prortrams,
.th s matter shall, prior to any ruling and their responsibilities for the eficc-c.dcring producticn. be certined to the tive performance of thore programs, an Commission or the Atomic Gafety and objection to production by the General Licensing Appeal Board, as appropiate, Manager or tne Director of negulation f;r determination.
will be accorded great weight by the presiding omccr, the Atomic Safety and.
Licensing Appeal Board and the Com-mission.
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WITED STATES OF AMERICA ATCHIC ENERGY CCNMISSION f-In the Matter of
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CNSUMERS POWER COMPANY
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Docket No 50-329, 30 (Midland Plant, thits 1 and 2)
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QERTIFICATE OF SERVICE Board dated September 3,1971 in the captioned m e
served on the following by deposit in the United States mail n
class or air mail, this 3rd day of September 1971:
, first Arthur W. Murphy, Esq., Chairman Atomic Safety and Licensing Board Richard G. Smith, Esq.
Columbia University School of Inw Smith & Brooker, P. C.
4 5 West 116th Street, Box 38 703 Washington Avenue 3
New York, New York 10027 Bay City, Michigan 48706 Dr. Clark C W n Harold P. Graves, Esq.
Professor of Physics Vice President and General University of Houston Counsel 3801 Cullen Boulevard John K. Restrick, Esq.
Houstan, Texas 77004 Consumers Power Company 212 West Michigan Avenue j
Dr. David B. Hall Jackson, Michigan 49201 Ios Alamos Scientific Laboratory P. O. Box 1663 Mr. R. C. Youngdahl l
Ios Alamos, New Mexico 87544 Senior Vice President Consumers Power Cwysuy Dr. Stuart G. Forbes 212 West Michigan Avenue 100 Tennessee Avenue, Apt. 37 Jackson, Michigan 49G 1 Redlands, California 92373 Honorable Frank Olds, Chairman Thomas F. Engelhardt, Esq.
Midland County Board of David E. Kartalia, Esq.
Supervisors Regulatory Staff Counsel 623 St. Charles Street U. S. Atomic Energy Commission Midland, Michigan 48640 Washington, D. C. 20545
,lonorable Jercane Maslowski Robert Iowenstein, Esq.
Assistant Attorney General Jerome E. Shartman, Esq.
State of Michigan Iowenstein and Newman Seven Story Office Building 1100 Connecticut Avenue 525 West Ottava Washington, D. C. 20036, N.W.
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N sing, Michigan 48913 g
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SEP8 T
1971 t
E u.mmeumr camma smwr Neil Settfee
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Honorable Curtis G. Beck William A. Groening, Jr., Esq.
Assistant Attorney General James N. O 'Connor, Esq.
State of Michigan The Dow Chemical Company Seven Story Office Building 2030 Low Center 525 West Ottava Mid. land, Michigan 48640 Lansing, Michigan 48913 William J. Ginster, Esq.
Nyron M. Cherry, Esq.
Suite 4, Merrill Building 109 North Dearborn Streat Saginaw, Michigan 48602 Suite 1005 Chicago, Illinois 60602 Mr. Wendell H. Marshall RFD No. 10, Mapleton Anthony Z. Roieman, Esq.
Midland, Michiew, 486ho Berlin, Roisman & Kessler 1910 N Street, N. W.
Irving Like, Esq.
Washington, D. C. 20036 Reilly, Like and Schneider 200 West Main Street James A. Kendall, Esq.
Babylon, New York.uT02 Currie and Kendall 135 North Saginaw Road Midland, Michigan 48640 Dr. Wayne E. North, Chairman Midland Nuclear Power Committee P. O. Ex 335 Midland, Michigan 48640 Milton R. Wessel, Esq.
Allen Kezaban, Esq.
J. Richard Sinclair, Esq.
Kaye, Scholer, Fierran, Hays and Handler 425 Park Avenue New York, New York 10022 r
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r? A Office of the Secretary of the Compission ec: Mr. Murphy
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Mr. Engelhardt Mr. Wells N. Brown W
A H. Smith p
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