, . . ~,

j.-t ,-y 1

f x er co,,be, s

UlHTCD 51 Airs *

' 3 'v< NUCLEAft itLGUt.AToflY CUT.'.MISSIOfJf ,., ' k _,,*. 'f " 4f

'. g'

, ,

WASHir!G T OfJ. D. C. ?OWS

e, (.., I,'i:lef V .i

% . .; .- /,...'

*[it.AY 1 0 1977 .

'.

'

MEMORANDUM FOR: Chairman Rowden*.

Commissioner GilinskyCommissioner Kennedy -

PROM: Peter L. Strauss, General Counse C

SUBJECT: RESPONSE TO CHAIRMAN ROBERT A. ANTHONY'SLETTER OF APRIL 22, 1977, CONCERNING NRC'SADOPTION OF ADMINISTRATIVE CONFERENCERECOMMENDATIONS

''~. .

- ~ In a letter to Chairman Rowden dated April.22, 1977, ChairmanAnthony requested that NRC provide information and documentswhich would enable the Administrative Conference to gain anupdated understanding of the Commission's implementation of

,five Administrative Conference Recommendations.

1 e

The proposed draft response sets forth the actions or policies| of the Commission on the subjects covered by the Recommenda-

tions:*

.

1. Recommendation.71-6: Public Participation inAdministrative Hearings. (NRC is in full com-pliance; recent developments in intervenor-

| funding question; discretionary intervention| decision.)*

.

2. Recommendation 71-8: Modification and Dis-solution of Orders and Injunctions. (Notapplicable to NRC as the Commission does notissue significant numbers of such orders -- >i

! only 4 since January 1975.)4

3. Recommendation 72-1: Broadcast of AgencyProceedings. (Opdate states current NRCpolicy permitting radio broadcast but re- '

stricting camera usage to periods when -

adjudicatory hearings not in session.)

CONTACT: James A. Fitzgerald .

49-28155-

.

'. -

8304040583 830304PDR FOIA %

HARTMAN82-490 PDR ~ ' - .

__

,

..

r -

.

' * .n,-

, -,

#*

.

I

! The Commission 2 I' LAY } G 197 I''

| . ,

I'

i 4. Recommendation 72-6: Civil Money Penalties,

; as a Sanction. _(NRC is presently consider-| ing a legislative proposal to eliminate de

novo district court review of its civil mone-tary penalty decisions and the power of the*

,

Attorney General to compromise these penalties.)|

i 5. Recommendation 73-1: Adverse Agency Publicity. ,

! (The Commission recently affirmed its past prac-tice of. issuing a press release concerning pro-posed civil penalties only after the licensee-

;

has been notified by. telephone and letter;announcements make clear that staff is alleging-violations and proposing penalties'and that thelicensee has not yet replied.)

'-J,'.

-- ELD, OPA, and I&E provided input to the dr, aft resp'onse.

Commissioner comments are requested not later than_c.o.b.May 19.

Attachment: Proposed ltr, Rowdento Anthony w/encls,

cc: Mr. Gossick*

- Mr. IlubermanMr. ShaparMr. IlarrisQ Mi , ,

*Mr. Volgeneau

*

SECY (2)-

.

e

0

e

!

''.

!( .

'.

.

4

L m - d

' ' ~ ~ ^ ' ~

( {_

v.

g#"% . UNITED STAT 0s*

,

ye . ., g NUCLEAR REGULATORY COMMISSION.

# Y, S WA9nNGTON, D. C. 20555'% .',

.

: c '-~r

; g ig,

I *%* -

-i .....,

| orriCE OF THE a

**CHM RMANg

-f

The Honorable Robert A. Anthony-

Chairmani

Administrative Conference of the ,

United States ,'

; 2120 L Street, NW., Suite 500' Hashington, DC 20037

. .. - -

Dear Bob:~

.,

i This responds to your letter of April 22, 1977, requesting additional'information concerning the extent of the Nuclear Regulatory Commission'sadoption of'several recommendations promulgated by the Administrative-

Conference of the United States. NRC recognizes the valuable function',

which the Administrative Conference performs and gives serious considera-,

tion to the Conference's recommendations with a view to their adapt-ability to the Commission's regulatory process. , , ,

.

Recommendation 71-6: As the Administrative Conference evaluation indi--cates, I believe that NRC is in substantial conformity with all aspects'

of this recommendation. To supplement your file on the recommendation,

of Considerations Termina,ntion that in the Commission's recent Statement,

let me bring to your atte'

ting Rulemaking (Financial Assistance to. Parti--

cipants in Commission Proceedings), NRCI-76/ll, 494, issued Hovember.12,1976, we stated our intentiori of proposing legislation providing for$200,000 for funding of qualifyir.g full participants in the,* proceedingdenominated In the Matter of the Generic Environmental Statement on ..

.

j.Mixed Oxide Fuel (GESMO). .,

The Commission is supporting legislation to this' effect and on several*

occasions has expressed to. Congressional committees its position on thegeneral funding question. Five eligibility applications were receivedfor GESMO funding and on March 4,1977, the Commission ruled fevorablyon them. A copy of this March 4 Order is enclosed. This will enabic'

.

those participants to share in any: funds allocated by Congress for. Also, since March 4, these participants havereimbursement of expenses.

been eligible for cost reductions . including service of their pap,ers onother participants by the NRC, transcripts supplied without charge, and ,

waiver of security clearance costs for.a representative of each full' -

participant. The Commission still has under study the possibility of.cxtending these or similar cost reduction measures to other Commissionproceedings. ,

-.

.

'.

t

e- y w y a -

...

u.-..

. .

.

'

.

I-The lionorable Robert A. Anthony 2 *

. .,

j Another development in the area of "Public Participation.in Administra-, tive llearings" which may be of interest to the Administrative Conference

involves the Commission's determination to permit intervention in'

! adjudicatory proceedings as a matter of discretion, exercised accordingto general guidelines, to petitioners not entitled to intervention as a-

.,

matter of right under judicial standing doctrines. In a Memorandum andOrder in a proceeding captioned In the Matter of Portland General Electric!

Company, et al. (Pebble Springs Nuclear Plant, Units 1 and 2), flRCI-! 76/12, 610, issued December 23, 1976, the Commission announced that such ,

discretionary intervention *

'

should prove more readily available where p titioners show -

significant ability to contribute on substantial issues oflaw or fact which will not otherwise be properly raised orpresented, set forth these matters with suitable -specificity

,

to allow evaluation, and demonstrate their importance; and; - _.- immediacy, justifying the time necessary to , consider them.

' The participation of intervenors admitted on a discretionary basis may belimited to the issues they have specified as of particular concern to --

th2m. A copy of this Memorandum and Order is enclosed.

' Recommendation 71-8: This recommendation is directed to agencies| which issue significant numbers of cease-and-desist orders. HRC has

not, in the past, issued such orders in significant numbers. Since theNRC was established in January 1975, only four cease-and-desist orders.

have been issued. Typically. they are' directed to persons conductingunauthorized activities. Since, cease-and-desist orders are' lifted uponthe issuance by the Commission of a license or order authorizing thepreviously prohibited action, formal procedures do not appear to benecessary to modify or vacate these orders.. .

,

Recommendation 72-1: In 1975 the Commission took a fresh look at thepolicy of its predecessor agency, the Atomic Energy Commission, on thesubject of Broadcast of Agency Proceedings and considered the provisionsof Recommendation 72-1. The Commission determined that the prior policyshould be continued because it provided the'best balance between the,

right of the public to be fully informed about NRC's adjudicatory pro-ccedings and the requirement that the proceedings be conducted withorder and decorum befitting their quasi-judicial nature.. .

,

In brief, the policy adopted by the Commission .for its adjudicatory -

proceedings, which are open to members of the' public and representativesof the media, is that:

.

. .

=.

/

' j.

i

. .

L_..,

. .

..

*.

' - The Ilonorable Robert A. Anthony 3. .

,

; -

(1) The operation of tape recorders during the proceedings,

is permitted.' -4

1

| (2) Live radio broadcast of the actual hearings is per-mitted if non-disruptive. presiding officers, undertheir powers set forth in the Commission's rules of- -

practice,10 CFR 2.718, have discretion to prohibit.

disruption if it occurs.,

(3) Use of television and still cameras in the hearing.

room while the proceeding is in progress is prohibited.,

'

(4) Cameras may be used in hearing rooms when the hearing '

is not in session. Licensing Board chairmen nonnally~

grant reasonable requests of cameramen for severalminutes of " shooting time" immediately before the. hear-in'g is formally called to order and before reconvening~

after a recess. .

. - =,

Thus, in every instance where media coverage can be accomplished withoutcreating distractions and otherwise impinging on the hearing process,the Commission has determined that the advantages offered by such media

' coverage in informing the public outweigh any disadvantages. However,' in our view, the necessity of conducting the actual proceedings in an

atmosphere as free of distractions as possible to assure a fair hearingto license applicants and pther participants and to aid the trier-of-

- fact in making a sound decision supports a limitation on camera usage.NRC has not adopted formal regulations which state this policy. Webelieve this policy substantially implements' Sections A-3 and B ofthe Recommendation. Sections A-1 and A-2 are not applicable. to HRCsince the Commission does not authorize or determine the level orquality of services and its adjudicatory proceedings do not involvethe personal 1ife of individuals. NRC does not permit witnesses toprevent the taping or radio broadcast of their-testimony.

Recommendation 72-6: The Commission is presently considering a legis-lative proposal for submission to Congress during the current sessionwhich would permit the imposition of civil monetary penalties in adminis-,

trative proceedings, with judicial review in the court of appeals basedon the administrative record, rather than the present de novo review ina district court collection action. A collection actiEii would st.ill liein the district court, but the validity of the final agency determin~ - -

'

tion would not be subject to review, nor could the penalty be compro-mised except with the consent of the Commission. At present the AttorneyGeneral has exclusive authority to negotiate a settlement in the collec-tion' action. .

. .

e

* .

.

c. 4

, , ~ t's .. !

.+-

.' .

t

- - The llonorable Robert A. Anthony 4 . .

j . ,

s'The one case which HRC has had to refc'r to the Attorney General for'

penalty collection (a safety infraction involving occupational exposuresin radiography) resulted in a final settlement for half the proposed

.

penal ty. Although URC experience.to date indicates that resort tocollection procedures does not occur frequently, we are concerned that' '

the Commission's inability to insist on full payment of a penalty in-'volving a serious infraction might compromise NRC's ability ~to enforce'

strict safety standards in tlua future.-,

Recommendation 73-1: The only-type of adverse agency publicity ini-.

tiated by the NRC is public. announcement by press release of proposedenforcement actions. Commission policy as reviewed and affirmed inNovember 1976 involves the issuance of a press release on a proposedcivil penalty after the licensce has been informed of the ~ proposed.

i action by telephone and has received the formal written notificationfrom the abency. The Commission has instructed that such announcements-

'.

must clearly state that the NRC Staff is alleging violatio'ns_ and pro--posing penalties and that the licensee has yet to reply formally.

*

II hope this information is useful to your current evaluation. -If NRCcan be of further assistance, please let us know.

Sincerely,I -

- ._

.

"

Marcus A. Rowden ,'

Chairman ,

.'

.

Enclosures: .

1. 3/4/77 Order-

2. 12/23/76 Memo. & Order

.

-

S

S

.

* 4

t-

#.

s

1a

%

-' - _' _-- hw__ A _ . ba u ,_-e ah _A _m ,___, _m __

gn in cA v%,*

UN t I r o r,1,u e:s ,

#[3 ,$ NUCl.E All itEGULATol1Y COMMISSION Y',$ kN I j WAMiWG T ON, D. C. 20555

U$$ (#b . ,",', , * .E '

March 31, 1978

i.h

hi|W*

.

MEMORANDUM FOR: Chairman Hendrie '

Commissioner GilinskyCommissioner KennedyCommissioner Bradford

FROM: James L. KelleyMActing General Counsel

'

".,

SUBJECT: TV POLICY -- MIDLAND HEARING b*,

_

i

The Licensing Board has requested guidance from the Commis-sion regarding television coverage of partions of the Midland ,

proceeding which may involve discussions of the past culpableconduct of individuals.

-5.

On January 27, 1978, the Commission issued a General State- %ment of Policy declaring that on a 6 month trial basis, the hCommission will permit the use of television and still p,==cameras during proceedings before the Atomic Safety and

|Licensing Board Panel and,the Atomic Safety and LicensingAppeal Boards. This change in Commission policy was basedin part upon an Administrative Conference Recommendationthat audiovisual coverage of administrative proceedings bepermitted under certain cincumstances. The Conference '

~

recommended, however, that camera coverage be excluded in i ,; .adjudicatory proceedings "invd.lving the rights or status of M-individuals in which individual past culpable conduct arid -other aspects of personal life is a primary subject of |. adjudication and the person in question objects to coverage."

The Commission in adopting its policy statement did notfocus on the exceptions recommended by the Administrative '

Conference and the Commission did not include any such -

exceptions. ,",

In the Midland proceeding a prehearing conference has lieen [scheduled for April 20-21. One issue on the agenda to beconsidered flows from the Appeal Board order in ALAB 458 : ,

directing the Licensing Board to " fully air" the issue whether ..

1:,

lCONTACT: E.Trip Rothschild - '''

634-1465 p--

--

, + -

i.=.-;

.' * -

. . 3, ,

/ ;..

.* ' ,~,;.. ,. ,s.. . .

e * 4

! o.The Commission 2

Cormumers Power Company attempted to prevent full disclosure '

of facts relating to Dow Chemical's intentions regardin6,

Dow's contract to buy processed steam from Consumers Power. r2-At this pre-hearing conference this $ssue will be discussed e .3,,",and may involve charges reflecting on the conduct of a number >y .

'

of individuals allegedly involved in these events. Suchcharges could reflect on the reputations of individualsbefore any evidence is introduced.

It is the present intention of the Licensing Board to con-duct the entire pre-hearing conference in open session.Consistent with the January 27 Policy Statement coverage by Wa--

*'the broadcast media will not be restricted. The Office 'of *

,

the Atomic Safety and Licensing Board Panel, however, wished I,'' 'sto inform the Commission that in this case permitting tele- ,

vision coverage could result in dissemination of informationinvolving alleged past culpable conduct of individuals. Itbelieves the Commission should set forth its position on thisaspect of camera coverage.

'

The Office of the General Counsel recognizes that this 're- 5"""pp,7hearing conference may be analogous to a grand jury proceeding .

where charges in the form of a proposed indictment are being ;-'

considered. In the prehearing conference there will be p---little, if any, opportunity to explore the merits of thematter or to put on evidence to give a balanced picture. A oneminute television broadcast could widely, and perhaps unfairly,disseminate information regarding alleged culpable conductof a given individual. However, we believe that the partiesinvolved have the opportunity to protect any privacy inter-

. ' . .~

ests. Parties are free to file a motion with the LicensingBoard requesting that portions. of the hearing pertaining to [T.' '.

the Dow-Consumers relationship b'e conducted in camera '

(closed to both the public and the press). If none of the I* ~Iparticipants choses to file such a motion we find no basis

for the Commission to exclude audiovisual coverage. If a i

participant files such a motion the Board will hear from all (parties before making a decision whether the public and media 2

should be excluded from the proceeding. |r

It can be argued that there may be circumstances where the [Commission might prefer only the print media to cover a ,

proceeding because some believe it presents a more balanced ,view of administrative proceedings, but the Commission in '

adopting its January 27 policy statement appears to have :.

taken the position that there should not be discrimination *

.h'' e--

'

-.

*

T- -_ ... - _ _

'

. c.- - - - s - -.' * E.' . 'W -

. .*4 7 -.

,

r-

.,~e,*..

The Commission 3-.

.

between the various media forms. OGC findu no basis fordiscriminating between the print end audiovisual media in

*

,,,,this proceeding. Therefore, we are recommending that ' ' ' 'consistent with the Commission's January 27 statement,no -| s

*

additional restrictions be placed on television coverage of gthe Midland proceeding. '

Nonetheless, the generic issue of whether audiovisual,

coverage of portions of proceedings that involve allegedpast culpable conduct of individuals should be treated in '

some fashion different from other adjudicatory matters is an nwnsissue that should be specifically addressed at the.end of e.the trial period before the Commission issues a final policy fusstatement'on audiovisual coverage of its proceedings. '

I.

*

Recommendation: Unless the Commission expresses a contraryintention, OPA will issue a press release as scheduled onApril 10 stating that a prehearing conference will be heldon April 20-21., No restrictions on audiovisual media coveragewill.be mentioned in that press release. 1/ """?'

.

.c -Coordination: OPA, ASLBP and OPE have no objection'to this I' "'recommendation. &

.

cc: J. Yore, ASLBPL. Gossick, EDO .

H. Shapar, ELD-,

K. Pedersen, OPE f'?4. Fouchard, OPA

.

M.

SECY (2)y..

.

Ir

,'-.

*

'| .'' n.*

' 1_/ ,".

If the Commission disagrees with 'this recommendation, ' +

it will need to issue a statement modifying its January ;.

27 policy statement. I-

d. .

' [.;I

*

.P'"".

'f.

''q e*s

.--- - _ _ _X / ~

u . '.( ..

.

.

.'

* .. .... -. . . .. . ~ ;. -., . . ;...

. . . ..,

.