ML20127P365
| ML20127P365 | |
| Person / Time | |
|---|---|
| Site: | Monticello  |
| Issue date: | 01/22/1973 |
| From: | Skovholt D US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Siess C Advisory Committee on Reactor Safeguards |
| References | |
| NUDOCS 9212020201 | |
| Download: ML20127P365 (20) | |
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UNITED STATES d D) 4 ATOMIC ENERGY COMMISSION
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n Docket No. 50-263 Dr. Chester P. Siess Chairman, Advisory Comittee on Beactor Safeguards U. S. Atomic Ehergy Conrnissicn Washingten, D. C.
20545
Dear Dr. Siess:
Sixteen (16) copies of the following am transmitted for the Comittee's g,g,,,,gt,,,
latter from Northern States Power Company dated January 11, 1973, reporting an RER service water pump seal problem that occurred at the Monticello Nuclear Generating Plant.
Letter from Northern States Power Ceegany dated January 12, 1973, regarding information relating to the Monticello torus ring header supports.
1Atter from Northeu States Power Company dated January 18, 1973, reporting exesssive leakage past a primary containment purge valve at the Mc.nticello Nuclear Generm*:ing Plant.
- Sinoenly, Diftribution gj[
[, [g 1Afocket File Branch Reading Donald J..
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Assistant Dimotor for Operating Beactom Din otorate of Licensing i
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=-.. _. I l TITLE 10 - ATOMIC ENERGY CllAPIER 1 - ATOMIC ENERGY CO}M SSION PAltI 2 - RULES OF PRACIICE Subpoenns: Production of Inspection Reports and internal 1:orking Papers In its memorandum opinion of August 26, 1970, In the Matter of Northern States Power Company (Monticello Nucicar Cencrating plant, Unit 1), Docket No. 50-263, the Atomic Energy Commission directed the staff-to give consideration to the institution of rule making proceed-ings for the purpose of making clarifying amendments to AEC regulations l! portaining to the recolution of questions of privilege arising in J AEC adjudicatory proceedings. The Commission has now adopted the amendments to its Rules of Practice in 10 CFR Part 2 which folicw, clarifying its policy and revising its procedures with respect to the subpoena of AEC personnci and the production of Commission inspection repcrts and internal working papers in Commission adjudicatory proceedings. An amendment to 52.720, Subpoenas, dealing with the appearance of j AEC personnel to give oral testimony, provides that AEC staff witnesses designated by the General Manager or the Director of Regulation, as appropriate, or their designees, will be made available for oral examina-tion at the hearing or on deposition regtrding any matter, not privileged, -,-e
2 which is relevant to the issues in the proceeding. The attendance and testimony of the Commissioncre and named AEC personnel at a hearing or on deposition may not be required by the. presiding officer, by sub-poena or otherwisci provided, that the presiding officer may, upon a showing of exceptional circumstances, such as, case in which a particular named AEC cmployee has direct personal knowledge of a material fact not known to the witnesses made availabic by the General Manager or the Director of Regulation, certify directly to the Commission for determination, prior to any ruling thereon,-the matter of whether the attendance and testimony of named AEC personnel should be required. The provision for certification has been inserted to ta'ke care of exceptional cases which l may not be forescen. Since competent witnesses will be made available by the General Manager or the Director of Regulation, it is expected that such exceptional circumstances will rarely, if ever, occur. In addition, written interrogatories may be submitted to and served on the Secretary of the Commission. They will be answered and signed by AEC personnel with knowledge of the facts designated by the General Nanager or the Director of Regulation, as appropriate. The answers will be served by the Secreta'y of the Commission upon parties r to the proceeding. In view of the increasing number of adjudicatory proceedings, and the demands on the time and energies of 'AEC policy making, supervisory and staff pcrsonnel, the Commission considers it desirable to provide a procedure and criteria for determining the appropriateness of attendance and testimony of such persons in AEC adjudicatory proceedings. The pro-v-, y .n.
s s , cedure and criteria estab11thed scch to accommodate the public interest j in having participation by appropriate AEC pe,rsonnel in resolving matters j in issue in an adjudicatory proceeding with a paralici public interest in maintaining the efficient and expeditious conduct of this and other agency functions. Section 2.720 has also been amended to provide that an application for the production of recordo or documents in the custody of the Commissioners and AEC employces will be processed.under a new section dealing with production of AEC records and documents, 52.744. An application for the production of records or documents in the custody of AEC personnel other than full-time AEC employees, such as advisors and consultants, will be immediately certified by the presiding of ficer to the Commission for determination. The production of AEC records and documents is covered in new $2.744. This section specifics that AEC vill as a matter of policy produce, on the application of a party to an adjudicatory proceeding, and a showing of need and relevance, Commission inspection reports and other records and documents, the basic. purpose of which is to record matters'of fact.rclating to license applications or licensed activities, if the facts contained in those reports and documents are not otherwise availabic. Certain privileged mattet -oul'd be' deleted from those reports, records and documents, i.e., (1) opinions, evalustions, analyses, deliberations, recommendations or advice; (2) information given in 4 4 -en
r confidence and names of individuals, other than AEC pe esonne), providing such confidential inf ormation; (3) refereneca to records and documents which may be withheld from public disclostre; (4) pro-prietary information; and (5) other privileged informatien, including classified information. Internal working papers are defined to include (1) the following documents containing opinions, analyses, evaluations, deliberations, advice, or recommendations: (1) interagency or intrangency reports; (ii) memoranda; (iii) letters; (iv) correspondence; (v) draft papers; (vi) minutes of meetings; and (vii) staff papers; and (2) internal instruc-tions prepared for the guidance of AEC personnel containing instruc-tions and guidelines for the conduct of inspections of licensed activities and instructions and guidelines for the evaluation of information related to licenpc applications and licensed' activities. Internal working papers and records and documents of the type specified in 59.5 of Part 9 are trea,ted as privileged and exempt from disclosure. If a party wishes to obtain such internal working papers, records and documents, he must address an application to the presiding of ficer in writing setting fortly his need for the records and documents and their relevancy to the issues in the proceeding. h
I i.. The requested internal working papers, records and documents, will be produced for the in camera inspection of the presiding officer exclusively and only to the extent necessary to determine (1) need and relevancy, (2) whether they are in fact internal working papers or other exempt records or documents, and (3) whether their production, if exempt, would never-theless not be contrary to the public interest and would not adversely affect the rights of any person. Upon a determination by the presiding officer'that the party making the request has demonstrated need and relevancy and that the production of any privileged papers, records and documents would not be contrary to the public interest and would not adversely affect the rights of any person, the General Manager or the Director,of Regulation, as appropriate, will either authorize production of such records and documents or state any objections to production. If the General Manager or the Director of Regulation, as appropriate, objectato praduction of such papers, records and documents, the matter will be certified to the Commission or the Atomic Safety and Licensing Appeal Board, as appropriate, for determination. Conforming ~and clarifying amendments have also been made to $$ 2.740, 2.741 and 2.780. e f
) i It is expected that the new regulation will permit the ma'ximum amount of production of AEC records and docum.cnts for use by parties to an adjudicatory proceeding consistent with the necessary protection of certain rights of privacy and agency operations with respect to infortna. tion in AEC records and documents. 'The' approach adopted is consistent with sound Governmental practice and the principics reficcted in the i Freedom of Information Act. In the interest of orderly and expeditious conduct of its ifcens-ing proceedings, the Commission would emphasize the desirability in this area of discovery, as in others permitted by the Rules of Practice, of completing necest.ary discovery at the prehearing stage i of the proceeding. Pursuant to the Atomic Energy Act of 1954, as amended, and. sections 301, 552 and 553 of Titic 5 of the United States Code, the following amendments to Titic 10, Chapter 1, Code of Federal Regulations, Part 2, are published as a document subject to codification, to be effective upon publication in the FEDERAL REGISTER.
7 1. New paragraphs (o), (p), and (q) are added to 82.4 to read as follows: 82.4 Definitions. (o) " Internal working papers" mean (1) (i) interagency or intrangency reports; (ii) memoranda; (iii) letters; (iv) corresoondence; (v) draft papers; (vi) minutes of meetings; and (vii) staff papers containing opinions, analyses, evaluations, deliberations, advice, or recommendations; and (2) internal instructions prepared for the guidance of AEC personnel containing instructions and guidelines for the conduct of inspections of licensed activities and in-structions and guidelines for the evaluation of information related to license applications and licensed activities. i
l ) 1, 8-(p) "AEC.nersonnel" means employees, consultants, and ] members of advisory boards, committees, and panels of the AEC; members of boards designated by the Commission to preside at adjudicatory proceedings; and officers or employees of Covernment agencies, including military personnel, assigned to duty at the AEC. (q) '%EC records and documents" means any book, paper, g ] map, photograph, brochure, punch card, magnetic tape, paper tape, sound recording, pamphlet, slide, motion picture, or other documentary material regardless of form or character-1stics, made by, in the possession of, or under the control of the AEC pursuant to Federal law or in connection with the transaction of public business as evidence of AEC organization, 4 functions, policies, decisions, procedures, operations, pro-grams or other activities. '%EC records and documents" do not l include objects or articles such as structures, furniture, tangible exhibits or models, or vehicles and equipment. 2. A new paragraph (h) is added to $2.720 to read as follows: 52.720 Subpoenas. (h) (1) The provisions of paragraphs (a)-(g) of this section are not. applicable to the attendance and testimony l l l l 1 l _..-...-_-..-..-...,_.,w....,.,,,.,._..,._m. ..m....--,w,
. _. =_ - of the Commissioners or AEC personnel, or to the' production of records or documents in the custody thereof. 4 (2) (i) In a proceeding in which the AEC is a party, the AEC staff will make available one or more witnesses designated by the General Manager or the Director of Regulation, as appropriate, or by their designees, for oral examination at the 1 hearing or on deposition regarding any matter, not privileged, P which is relevant to the issues in the proceeding. The attendance and testimony of the Commissioners and named AEC personnel at a hearing or on deposition may not be required by the presiding officer, by subpoena or otherwise; provided.that, the pre-4 siding of ficer may, upon a showing of exceptional circumstances, such as a l case in which a particular named ACC employce has direct personal knowledge of a material fact not known to the witnesses m'de a available by the General 11anager or the Director of Regulation; certify ~/ 1 directly to the Commission for determination, prior to any ruling thereon, the matter of whether the,at'tendance and testimony of named AEC personnel should be required. (ii) In, addition, writt'en interrogatories may be submitted t'o and served on the Secretary of the Commission. i 1/ The matter will be certified to the Commissibn notwithstanding J the provisions of $2.785 9 i l
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- They will be answered and signed by AEC personnel with knowledge of the facts designated by the, General Manager or the Director of Regulation, as appropriate. The party proposing the interrogatories shall file a copy of the proposed interrogatories showing each interrogatory separately and consecutively numbered. Within seven (7) days after filing, any other party may serve crocs-interrogatorico. Objections to interrogatories or cross-interrogatories shall be mede promptly and will be ruled upon by the presiding officer. Objections to form shall be deemed waived. The interrogatories, cross-interrogatorica, end answere shall be recorded and signed. The answers will be served by the Secretary of the Commission upon parties to the proceeding.
I (3) An application for the production of records or documents in the custody of the Commisnioners and AEC employees will be' processed under $2.744 An application for the production of records or doc'uments in the custody of AEC personnel other than AEC emp1oyees will be imme-diately certified by the presiding officer, prior to any ruling thereon, directly to the Commission for determination ~/ 1 of the matter. 9 w
4 ) 3. A new paragraph -(j) is added to* 52.740 to read as follows: $2.740 Depositions and written interrocatories. (j) Motions for the taking by deposition of the testimony of AEC personnel are subject to the -provisions of $2.720(h). 4 A new paragraph (d) is added to $2.741 to read as follows: $2.741 Discovery and prodnetfon of documents and thines for inspection, copving, or photocraphing. (d) The provisions of this section are not applicable to the production for inspection and copying or photographing of AEC records or documents. Motions for production of such records or documents are subject to the provisions of $2.744 l S. A new $2.744 is added to 10 CFR part 2 to read as followst, $2.744 production of AEC records and documents. (a) AEC reco'rds and documents, except internal working papers and other_ records of the type which arc exempt from public ~ disclosure under $9.5 of this chapter, will be produced upon request for inspection and copying or photographing. (b) An application by a party to a proceeding for the production of Commission inspection reports and other records I l l l
1 ' and' documents, the basic purpose of which is to record matters of fact relating to license applications or licensed activities, shall be addressed to the presiding officer in writing and shall set forth the need of the party for such documento and the relevancy thereof to the issues in the proceeding. Such applications shall be processed as motions in accordance with $ 2. 730 (a)-(d). Inspection reports and records and documents which are the subject of such applications will be produced for the in comera inspection of the presiding officer exclusively and only. to the extent necessary for the-determination of need and relevancy of the reports, records'and documents,and whether the reports, records and documents are within the categories described in this paragraph. Upon a determination of need and relevancy by the presiding officer, such inspection reports and such records and documents will be produced if the facts recorded therein are not otherwise available to the moving party. Pro-duction of such reports, records and documents will be subject to the deletion of (1) opinions, evaluations,' analyses, deliberations, recommendations or advice; (2) ~information given in confidence (whether specifically given in confidence or under circumstances where it could be reasonably concluded that the information
= i i-4 13 - i 4 1 was given in confidence) and names of individuals, other than AEC personnel, providing such confidential information; (3) references to records and documents which may be withhold from public disclosure (4) information of a proprietary. nature; and ($) other information, including classified informa-tion, privileged under $9.5 of this chapter and/or para-graph (c) of this section. If the Cencral Manager or the Director of Regulation, as i appropriate, objects to authorizing production of the re-ports, records and documents on the ground that need for and relevancy of the reports, records and documents have not been 4 shown, or that the reports, records and documents are not within the categories described in this paragraph, or that certain material should be deleted, the matter shall, prior to any ruling ordering production, be certified to the Commis-sion or the Atomic Safety and Licensing Appeal' Board, as appro-priate, for determination. 4 e 4 4 e m - - -._,., +
1 . t (c) Internal working papers and records and documents of the type specified in 59.5 of this chap,ter, including lists, digests and summaries thereof and references thereto, but not including reports, records and documents describ'd in paragraph e (b) of this section, will be treated as privileged documents and exempt from disclosure except in accordance with paragraphs (d) and (c) of this section. (d) An application by a party to a proceeding for the produc-tion of AEC records and documents described in paragraph (c) shall be addressed to the presiding officer in writing and shall set forth the need of the party for such records and documents and the relevancy thereof to the issues in the pro,cceding. Such applications shall be processed as motions in accordance with 5 2.730(a)-(d). Records and documents covered by such applications will be produced for the in camera inspection of the presiding officer exclusively and only to the extent necessary to determine (1) need for and relevancy of the records and documents, (2) whether the records and documents are in fact internal working papers or records or documents of the type specified in 59.5 of this chapter and thus privileged under paragraph (c) of this section, and (3) whether the production of a record or document privileged under para-graph (c) would not be contrary to the public interest and would not adversely affect the rights of any person.
l 15 - (c) Upon a determination by the presiding officer that the moving party has demonstrated need for pnd relevancy of the records and documents and that the production of records and documents privileged under paragraph (c) of this section would not be contrary to the public interest and would not adversely affect the rights of any person, the General Manager or the Director of Ecgulation, as appropriate, will either authorize production of such records and documents or state any objection to production. If the General Manager or the Director of Regula-tion, as appropriate, objects to authorizing production of such records and documents on the ground that (1) need for and relevancy of the records and documents have not been shown; or (2) the records and documents are in fact internal working papers or records l or documents of the type specified in $9.5 of this chapter and thus privileged under paragraph (c) of this section; or (3) that, l if privileged,_ the production of the records and documents would be contrary to the public interest or would adversely affect the rights of a person ot' persons, the matter shall, prior to any ruling order-ing production thereof, be certified to the Commission or the Atomic Safety and Licensing Appeal soard, as appropriate, for' determination. .In view of their knowledge of the adverse effects of production on the ef fective performance of AEC _ programs,- and their responsibilities for the effective performance of those programs, an objection to 4 y ~ n p n
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production by the General Manager or the Director of Regulation i will be accorded great weight by the presiding officer, the Atomic Safety and Licensing Appeal Board and the Commission. (f) A ruling by the presiding officer, the Atomic Safety and Licensit., Appeal Board, or the Commission, for the pro-duction of AEC records and documents, will specify the time, place and manner of production. The presiding officer, the Atomic Safety and Licensing Appeal Board, or the Commission may make any order which justice requires to protect against i annoyance, embarrassment, or oppression. (g) Notwithstanding the provisions of $$2.3 and 9.10(a), in any conflict between these sections and any other provision of this chapter, this section governs. ) i 6. A note is added following $2.780 to read as follows: } l $2.780 Ex parte communications. NOTE: Matters certified to the Commission or to the Atomic i Safety and Licensing Appeal Board pursuant to $$2.720(h) and 2.744(b) and (c) are not deemed to involve substantive l P . ~. _ y r .y x-,~,-_,_--
i. } i i 1 4 matters at issue in a proceeding on the record as described a in paragraph (a) of this section. J (Sec. 161, 68 Stat. 948; 42 USC 2201) j j e For the Atomic Energy Commission 4 i F. T. Ilobbs Acting Secretary of the Coenission Dated at i this day of , 19 4 6 e 1 e 4 - e e 9 e e e 9
3 ,,) l s s* HEC AMENDS REGULATIONS ON PRODUCTION OF DOCUMENTS IN LICENSING PROCEEDINGS The maximum amount of records and documents of. the-Atomic Energy Commission will be made available to parties in AEC licensing proceedings under, revised regulations announced today by the Commission. The new l approach is consistent with sound governmental practice and with the principles of the Freedom-of Information Act. On August 26, 1970, in a memorandum opinion concerning the Northern States Power Company's Monticello nuclear power plant, the Commission i directed the staff to consider initiating rule making proceedings for the purpcsc of c1crf fying AEC regulations regarding privilege in adjudicatory pr6cecuings. Under the new amendments to Part 2 of AEC regulations, ef fective at once, the Commission has clarified its policy and revised its procedures Qith respect to the attendance of'AEC personnel and the production of ( inspection reports and internal working papers in hearings on licensing
- matters, i
Principal features of the new regalations include: l 1. Members of tne AEC staff designated by the Commission's General i Manager or the Director of Regulation will be made available for oral testimony at the public hearing or by deposition on any matter which. is i not privileged and which is Televant to the proceedings. Designation of 4 which AEC staff members will testify will be left to the-General Manager or the Dim : tor of Regulation,- except that the presiding officer may, upon L 'a showing of excentional circumstances, ask the Commission for a determina-l tion of the mam - e whether the attendance and testimony of named AEC personnel should be required. In addit; ion, written questions may be submitted in 'a licensirq proceeding. -They will be answered by AEC personnel with knowledge of the facts. Tne written answers will bc provided to all j ~ parties in the proceeding. I i l 2. The AEC will, as a matter of policy, produce -- where they have p been requested and r ere relevance has been demonstrated -- Commission inspection reports ' other records and' documents the basic purpose of which is.to provide. ctual information about licensing applications or
], i 1 4 i ) V Q j ,. s ' licensed activities, if the facts contained in thos,e reports and documents are not otherwise available. Certain privileged matter will be deleted. l from those reports and records, but the deleted information will not affect the substance of the information in the reports. 3. Requests for internal working papers of the AEC and for internal instructions prepared to guide AEC personnel in the conduct of inspections ~ { and the evaluation of licensing applications must be presented to the j ' presiding of ficer in 'the licensing proce'eding. The need for such documents j and their relevancy to the proceeding must be stated. When such-a request is received by a presiding officer, the AEC staff will provide the documents; t l privately to the presiding of ficer so that a determination can be -made as to need and relevancy to the proceeding,-whether.the documents are in fact exempt from disclosure, and whether their production, if exempt, would nevertheless not be contrary to the public interest and would not adversely l affect the rights of_any person. If the presiding officer and the /.LC General Manager or the Director of Regulation are in agreemeni that the privileged records should be given to parties to the proceeding, this will be done. If there is disagreement, the matter will be decided by the j l Commission or its Licensing Appeals Board. i The Commission believes that its new regulations will make the maximum af information available in its licensing hearings while at the amouns j sarm time protect rights of privacy and prevent unwarranted. interference-with the work of the Commission and-its staff. M
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