ML20004C498

Request That All Hearings & Proceedings Remain Open to Public & Press.Nrc Has Adopted Policy of Public Hearings.No Regulations Give ASLB Authority to Close Hearing to Protect Witness

ML20004C498
Person / Time
Site:	South Texas
Issue date:	06/02/1981
From:	Brown W HOUSTON CHRONICLE, LIDDELL, SAPP, ZIVLEY, BROWN & LABCON
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8106040174
Download: ML20004C498 (13)

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Y f,if@tA UNITED STATES OF AMERICA

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0 A NUCLEAR REGULATORY COMMISSION Nx

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BEFORE THE ATOMIC SAFETY AND LICENSING IN THE MATTER OF HOUSTON LIGHTING &

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POWER CO.

(South Texas Project, Units S

DOCKET NO. 50-4980L 1 and 2)

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50-4990L i

HOUSTON CHRONICLE PUBLISHING COMPANY'S BRIEF IN SUPPORT OF OPEN P.tOCEEDINGS EG acre 3

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3 of the Se:retary L':itbg & Service 1

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ROBERT BROWN LIDDELL, SAPP, i

& LaBOON ZIVLEY, BROWN 500 Gulf Building Houston, Texas 77002 (713) 223-4151

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State Bar No. 03178000 I

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF S

HOUSTON LIGHTING &.'0WER CO.

S DOCKET NO. 50-4980L (South-Texas Pro.fect, Units S

50-4990L 1 and 2)

S HOUSTON CHRONICLE PUBLISHING COMPANY'S BRIEF IN SUPPORT OF OPEN_ PROCEEDINGS COMES NOW the Houston Chronicle Publishing Company a

(" Chronicle") and submits this, its brief in support of open proceedings before the Atomic Safety and Licensing noard in the captioned matter and in connection therewith wo;ld respectfully show as follows:

I.

INTRODUCTION:

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The Atomic Safety and Licensing Board

(" Board ")

currently is holding hearings in Houston, Texas on the application of Houst on Lighting and Power Company for an operatin:

' cense at the South Texas Nuclear Power Plant.

Intervenors in ti.at hearing have filed.a motion to hold _i_n camera sessions during the testim n

ony of certain witnesses, thereby excluding the public and press The Houston Chronicle appeared before the Board to oppose the

motion, and'any other action the Board might take which would close the hearings to the public.

The Board has asked the Chronicle to I

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' submit a written-brief and appear for oral

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argument on two ques-tions, 1) the newspaper 's standing to' appear in this proceeding and 2) the substantive issues relating to the closure of th hearing.

e These questions are addressed in the following para-graphs.

II.

_ STANDING:

1 The Chronicle does not petition to intervene in thi s proceed-ing as a party.

The Chronicle has no property or financial in terest in the ultheate outcome of the proceedin g which would give the newspaper strnding to intervene as a party The Chronicle's interest in this proceeding is a very limited and narrow one, that of maintaining the access of the public and proceedings so that press to these t

it can perform its constitutional function of reporting the news.

The NRC rules of procedure allow for participation i n this

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proceeding through oral and written statements by persons who are not parties.

10 C.F.R. 52. 715 (a) (1980).

There are no standing requirements for non-party participation other than the permis-sion of the presiding officer.

Continued oral and written participation by the media under 52.715(a) issue is unquestionably proper.

on the open-hearing The Board will receive the bene-fit of the medi t 's expertise and position on the constit utional issue of closute, but the substantive proceeding will not be encumbered with the presence of improper parties.

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The Chronicle'does not seek nor1does it desi re to become a party to or to intervene in this proceeding.

It seeks only to.

participate in this oroceeding,to.the extent necess the-public's right te. Information relating to thi ary to pro'.ect s topic of great public concern and, accordingly, submits this'brief f

. Board 's consideration.

or the III.. THE REOUIREMENT FOR OPEN HEARINGS:

The Nuclear Regulatory Commission regulation s, the Atomic Energy Act, and the applicable case law'clea l r y indicates that the Atomic Safety and Licensing Board lacks a th p

u ority to close this proceeding.

A.

_The Commission regulations which grant powers to the Board to conduct include the authoritylicensing hearinos do not

-[ing to clo to the public and the press se a proceed-~

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The Atomic Safety and Licensing Board is s l l o e y a creation of the Nuclear Regulatory Commission Act of 1954 and subsequent amen,sentsPursuant to the' Atomic Energy

, the Commission promulgated Rules of Practice for Domestic Licensing P roceedings.

10 C.F.R.

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52.1 et. seq. (1980).

Under the rules, Boards were created to hold hearings on applications for nuclear powe t

tion permits and operating licenses r plant construc-10 C.F.R.

52.721 (1980).

board is granted the same powers as presidin A

g officers in any NRC Edjudication.

Generally, it has the power to issue subpoenas receive evidence, order depositions, regulate the cours b aring, examine witnesses, etc 9

e of the

. 10 C.F.R. S2.718 (1980).

None 3

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of the specifically enumerated powers in Section 2 718(a) ' th

-l (1) - would allow the Board to close a hearing

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Section 2.751 of the Commission reculations explicit.".y requires this hearino to be open to the publ:.c.

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Section 2.751 states:

"Except as may.be~ requested pursuant to Secti of the Act otherwise o,rdered by the Commission."all hearings will be public u on 181 This rul'e requires that all hearings be open to the public unless-they are -(1) previously ordered closed by the Commission, or closed by the, Board pursuant to a request to safeguard i f (2) tion which contains Restricted Data or defense i f n orma-n ormation as defined by the Atomic Energy Act (Section 181].

Here,.the Com-mission has not ordered the proceedings closed to the p bli i

therefore there is no authority for the Ecard t u

c, and o close them on that basis.

Further, there has been no request to close th '

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hearings pursuant to Section 181 of the Atomic En e

ergy Act.

That section directs the Commission to provide procedures th

" effectively safeguard and prevent disclosure at will of Restricted Data,

-defense information, or such safeguards information

...with minimum impairment of the procedural rights which would b

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able" if such information were not e avail-i involved.

42 U.S.C.A.

S2231

" Restricted Data" includes only data concerning th

-dssign of nuclear weapons, the production of special nuclear e

material or the use of special nuclear material in the p i

roduction L

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of energy.

42 U.C.S.A.

S2014.

Therefore, the request here to close the proceedings in order to protect certain witnesses'i.s

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not a proper purpose under either the Act'or the regulations, and~

the hearing ~must remain open.

9 C.

Through its ru:'.es and decisions the Commission has developed a clear oolicy in favor of open hearings.

The Commission's public hearing rule is very explicit and restrictive in comparison to other agencies ' regulations.

For'

example, the-Nationar' Labor Relations Board regulations require i

that hearingsshall be public unless otherwise ordered by the Board or the administrative law judge.

29 C.F.R. S102.34 (1980).

The Federal Trade Commission allows presiding officers to hold in, camera proceedings in a number of circumstances

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16 C.F.R. 53.41 (1980).

The Commission could have given such broad I

powers to its licensing boards, but it consciously chose to re-1 strict the circumstances in which in camera proceedings are ap-

'I propriate.

There is dicta in two Nuclear Regulatory Commission opinions which indicates a strong policy in favor of public access to

-licensing information.

In Wolf Creek Generating Station, Unit No. 1 [1976) 2 Atom. En. L. Rep. (CCH) 130,067 the Commission 1

held that. provisions in a commercial supply contract for uranium i

batween Westinghouse and the Wolf Creek Nuclear Plant which f or-bade the plant from disclosing the purchase price of uranium 5

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would not be. deferred to in~the Plant's construction permit pro-ceeding.

The Commission required the price to be discicsed b

citing a " strong-public interest" in' adjudicatory proceedings

-which are to be "as open as possible to full public scrutiny."

Wolf Creek Generating Station at 130.067.08.

The Commission implies in a footnote to the text that a-hearing may be closed only when a party shows that disclosure of confidential com-mercial injury would " work a clearly defined and very serious iniury." _Id. emphasis added.

In another decision the Commission said, "there are no alternatives to public disclosure since the public's right to know does not have any limitations or restraints...the trend and tenor of the decisions are confirming the principle of the public's right to know."

Wolf Creek Generating Station, Unit No. 1 (1976] 2 Atom. En.

L. Rop. (CCH) 130,124.

D.

There are no cases which support the inter-venor's motion to close this hearing.

Intervenors apparently rely on Hunt v. Nuclear Regulatory e

Commission, 611 F.2d 332 (10th Cir. 1979) cert. denied 445 U.S.

906, 100 S.Ct. 1603, in arguing that the hearing may be closed to the public.

The case is not an affirmative precedent, however, which would support a decision by the Board to close a hearing.

The court held only that Board hearings are not subject to the Open Meetings Act because the Board is not a subdivision of the i

. Commission as required by the Act.

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The-decision' is-inapplicable to the present hearing forltwo i

'First,.in Hunt the plaintiff's sole attack ofLthe in

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reasons.-

creera session was-based on the Open Meetings Act.

He did not challenge the Board's-legal authority to close hearinge.and he failed.to ' raise' any. constitutional issues.

The opinion specifi-cally notes the narrow grounds on which plaintiff's action a

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Hunt v. ERC, 611 F.2d at 336.

As such, the-holding is ll simply an interpret'ation of the Open Meetings Act.

It does not i

discussiany collateral issues, nor does it offer any justifica-e tion f5r closed Board hearings.

U Second, the Board held an in camera session in Hunt to pro-l tact proprietary information.

There - is ample authority in the l

Commission rules to close a~ licensing hearing to protect trade l

necrets.

But the decision does not offer any support for closing hearings in situations where Commission regulations require them

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to be open to the public.

E.

Closing the hearings would not serve the ulti-mate purpose of protecting the witnesses and, e

therefore, even if the purpose is legitimate, the action is inappropriate.

l Both the Comm'ission rules requiring disclosure of final

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public records, 10 C.F.R. 52.790 (1980), and the Federal Freedom l,

of-Information Act, 5 U.S.C.

552(b), will allow the public to discover the testimony of the witnesses.

Section 2.790 of the N.R.C.' rules requires that all final records and documents must I

be made available to the public for inspection and copying unless 4 -

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-those1 records fall within any of.nine'specificall tions l to the. rule.. ' Those exemptions '

y stated exemp-I as the~ exceptions to disclosure under thecFre dare almost Act and.none will exempt' documents ' fro e om of Information:

witnesses of a quasi-judicial hearing m disclosure to protect' I

of the witnesses will become part of the reco dSimilarly, the application hearing which any person may reof the license r

the Freedom of Information Act quest access to under I

will allow the Agency to refuse disclosu ~None of the Act 's e re.

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Nuclear Regulatory Commission and C Thus, where both the

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of broad disclosure with specifically stat dongress have adop Atomic Safety and Licensing Board sho ld e

exemptions, the u

seeks to delay the effectuation of that p linot take an action which o

cy.

F.

desire to protectVarious courts have explicitly held

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the identity and that the sufficient reason to close hearingsof witnesses fro testimony

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- ot a' Wigmore wrote that

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"the public has a right to every man' evidence...when the course of justice requires th s

i of the truth, no man has any knowledge that i e investigation private."

s rightly Wigmore on Evidence, McNaughton Revi i t

52192.

s on, Volume 8 t

This attitude is reflected in cases i

desire of witnesses to testify or ref which hold that the 1

place in the determination of a court torain from testifying have no v

I or as a closed hearing.

conduct a trial publicly Des Moines Register &

j Hildreth,-181 N.W.

Tribune Co. v.

2d 216 (Iowa 1970).

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.Even if the protection of' witnesses is a recognized and valid reason'for closing a hearing, the intervenors have made no show ing that a compelling interest exists here to require closure.

The fact that ten of the twenty witnesses the intervenor_will subpoena are willing to testify publicly undercuts its owns as-I sertion that public testimony-will cause witnesses substantial iharm.

Further, the witnesses are protected from employer retali-ation by the National Labor Relations Act and the Commission's own regulations which forbid discrimination _against workers who testify against a licensee.

10 C.F.R.519.16 (1980).

l IV.

THE CONSTITUTIONAL RIGHT TO PUBLIC HEARINGS:

t closure of the hearing to the public and the press abridges

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the public's right to attend adjudicatory proceedings of the l

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government and the right of the press to collect and report the A basic tenet of the Anglo-American legal tradition is

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news.

that trials should be open to the public so that citizens can

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watch the operation of their government.

Recent Supreme Court i

decisions have held that part of that tradition is embodied in the First Amendment rights of free speech and free press.

Richmond Newspapers, Inc. v. Virginia, No.79-243 before the i

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L Supreme Court decided July 2, 1980.

Without the right t; attend

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trials, "important aspects of freedom of speech and of the press i

t would be eviscerated."

Richmond at page 17.

In his concurring i

opinion Mr. Justice Brennan said that open trials are "bullworks t

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I of out free and democratic government."

Jd_ at124.

And in Gannett Co. v. De Pasquale, US

,~61 led 2d608, 99 S.Ct.

2898 (1979), Mr. tJustice-Powell, concurring, said that the. press must Jnot be excluded from trials because it obtains for the citizen "the information needed for the intelligent discharge of 1

his political responsibilities."

Gannett Co. 61 led 2d at 632.

A

' free press with access to adjudicatory proceedings is "the only guarantee a citizen has of his right to know what is going on in his government."

State ex rel Dayton Newspapers, Inc. v.

i Phillips., 351 N.E.2d 127 (Ohio Supreme Court 1976).

These interests are clearly present in an atomic power plant licensing I

hearing.

The public's interest in knowing how well a nuclear plant is constructed and how safely it will be operated is undeniably at the highest level.

The language cited above should 1

apply with even greater force in this administrative hearing.

t Although the First Amendment right to open trials may be subjected to the 6th Amendment right to a fair trial or other constitutional rights, the countervailing interest of protecting witnesses does not reach constitutional status and should not

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defeat the First Amendment interests which are preserved by an open hearing.

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V.

CONCLUSION:

i The Houston Chronicle does not assert that it has standing to intervene in the licensing proceeding.

It seeks only to partici-10 l

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1 pate in the. proceeding to the extent necessary'to protec+. the public's right to attend the hearing and hear the testimony of

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.the witnesses on this topic of great concern.

It is clear that-the Nuclear Regulatory Commission has adopted a general policy of public hearings.

Nothing in the Commission. regulations gives the Board the authority to close a 7

hearing in order to protect a witness and there is no indication

~in any Commission decisions that a Board may exercise this power.

Further, the constitutional rights of the.public-to attend trials and of the press to report the news would'be abridged if 4

the hearing is closed.

While the protection of witnesses may be a legitmate purpose of the Board, it cannot defeat the rights-and protections guaranteed by the Constitution.

WHEREFORE, PREMISES CONSIDERED, the Houston Chronicle Pub-lishing Company requests that all hearings and proceedings before'

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this Board remain open to the public and the press and for such otner relief as may be appropriate.

Respectfully submitted, I

),

s F. Robert Brown Liddell, Sapp, Zivley, Brown l

& LaBoon l

500' Gulf Building Houston, Texas 77002 (713) 223-4151 State Bar No. 03178000 11

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s OF COUNSEL:

Richard L.: Tate 1

I Liddell,-Sapp,.51vley, Brown E LaBoon 500 Gulf Building Houston, Texas 77002

-(713) 223-4151 State-Bar No. 19664460 I

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