ML22230A061

Tran-M771207: Commission Meeting Open Session, Policy Session 77-56

ML22230A061
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Issue date:	12/07/1977
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1N TO SECRETARIAT RECORDS

• NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:

COMMISSION MEETING OPEN SESSION POLICY SESSION 77-56 Place - Washington, D. C.

Date - Wednesday, 7 December 1977 Pages l - 135 Telephone :

(202 ) 347-3700 ACE - FEDERAL REPORTERS, INC.

Official Reporters 444 North Capitol Street Washington , D.C. 20001 NATIONWIDE COVERAGE* DAILY

DISCLAIMER This is an unofficial transcript of a meeting of the U~ited States Nuclear Regulatory Commission held on'_

• JJ£D f wn in the Commission's offices at 1717 H Street, N. W., Washington, D. C. The meeting was open to public attendance and observation. This transcript has not been -reviewed, corrected, or edited, and it may contain inaccuracies.

The transcript is intended solely for general informational purposes.*

As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed. Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs. No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any statement or argument contained herein, except as the Commission may authorize .

1 cr5792 UNITED STATES OF N'1ERICA M.ER/ffi.t"'tl 2

NUCLEAR REGULATORY COM.TVIISSION

. .1 3

4 5

6 COMMISSION MEETING 7

8 OPEN SESSION 9

POLICY SESSION 77-56 10 11 12 Room 1130 1717 H Street NW' 13 Washington, D.C.

14 Wednesday, 7 Decemper 1977 15 16 Meeting in the above-entitled matter was convened 17 at 9:45 a.m., pursuant to notice, JOSEPH HENDRIE, Chairman, 18 presiding.

19 PRESENT:

20 JOSEPH HENDRIE, CHAIRMAN RICHARD KENNEDY, COM.:"iISS IONER 21 VICTOR GILINSKY, COMMISSIONER PETER BRADFORD, cownss IONER Ace-22 23 24 al Reporters, Inc.

H.

L.

J.

A.

J.

Shapar V. Gossick Nelson Kenneke Yore R.

J.

L.

J.

K.

Mallory Kelley Slaggie Murray Pedersen 25 J. Fouchard B. Snyder A. Rosenthal s. Eilperin

s. Myers D. Rathbun

2 mm C O N T E N T S 2 PAGE

1. SECY-77-574, Review of Policy Concerning Use 3 of Cameras During NRC Licensing Hearings. 3 4 2. Briefing on SECY-77-391, Reducing Porcedural Cost Burdens for Participants in Commission 5 Proceedings; and Discussion of Procedural Assistance in S-3 Fuel Cycle Rulemaking. 58 6

3. Discussion of Mr. Pollard's Request to Participate in NRC Meetings on UCS Petition. 107 7

8 9

10 11 12

• 13 14 15 16 17 18 19 20 21 22 23 Ace*F* Reporters, ~n~.

25

3 mm3 P R O C E E D I N G S 2 CHAIRMAN HENDRIE: Okay, since we are all gathered, 3 why don't we come to order.

4 The Commission is meeting this morning to review 5 its policy with regard to the use of cameras. and such matters 6 at Licensing Board hearings.

7 There is a basic discussion paper from Mr. Fouchard's 8 office, and Mr. Yore and Mr. Rosenthal, whose interests are 9 acutely affected by these considerations.

10 MR. SHAPER: I think Mr. Yore is the real party of ll interest.

12 CHAIRMAN HENDRIE: Well, since Mr. Rosenthal has

• 13 14 15 to review everything Mr. Yore does, why MR.ROSENTHAL: Also, I don't think it is beyond the realm of possibility that a camera might show up at one of 16 our Appellate proceedings, dull as they might be.

17 CHAIRl'vlAN HENDRIE: True, true.

18 Okay, Joe, why don't you go ahead.

19 MR. FOUCHARD: Thank you, sir.

20 (Slide.)

21 I thought I would go through the basic paper very 22 briefly. As all of you know, this is not an issue that is 23 unique to the Nuclear Regulatory Commission. It is an issue 24 which has, I guess, been around since two honorable professions Ace-F* I Reporters, Inc.

25 of journalism and law have: locked horns. I can't speak for the

4

• 2 3

older of those two professions, but certainly from the standpoin of -the1:j.ournalistic profession, the.re with respect to camera coverage of trials.

isn 1.t even unanimity 4

I noticed a recent piece by Richard Salant, 5

President of CBS News in the New York Times in which he 6 indicated that he thinks his profession may be going at it the 7 wrong way. They have. argued successfully, he says, in some 8 instances, that microphones and cameras be permitted at 9 court trials, but he notes that the complexities there are 10 rather enormous.

11 He does argue, however, that cameras should '.be 12 permitted at appellate proceedings, and of course, the thrust

• 13 14 15 of his comment was that cameras and broadcast:: coverage should be permitted of important matters before the Supreme Court, namely the Bakke case.

16 So, as I say, there isn't even unanimity within 17 \

the broadcast profession itself.

18 Basically, I think the issues itself are rather 19 straightforward; can camera coverage be permitted of all 20 licensing and appellate hearings without creating distractions 21 which are unacceptable and without otherwise impinging on the 22 licensing process.

23 The other side of the coin, it seems to me is; are the information needs of the public being served when television, Ace-*I Reporters, 7~.25 which is certainly one of the principal news mediums in the

5 world today.-- certainly the recent events in the Middle East 2 would demonstrate that -- are not permitted to cover NRC 3 hearings with their cameras.

4 (Slide.)

5 Our present policy is that cameras are prohibited 6 during the period of time when* the hearing is actually in 7 session. The Licensing Boards, and I believe the Appeal Boards 8 also have0generally granted a few minutes of shooting time at 9 the outset of the hearing right before it commences, and we 10 also *permit cameras in the hearing room before and after the 11 hearings and during recesses.

12 Tape recorders are permitted to be used while the

• l3 14 15 hearing is in session~ and I think it ts fait to say th~t the~have been a minimal distractions at best, from that policy.

16 As the Commission knows this policy has been 17 challenged on a number of occasions recently by news media in 18 Seattle and Oklahoma City and Louisville, and also by the Radio-19 TV News Directions Association. In each of those instances we promised to take a fresh look at our policy.

20 (Slide.)

21 The AEC reviewed its policy on several occasions.

22 On each occasion it remained with the policy which I have 23 outlined for you.

• *I Reporters, 24 Ace-F Inc.

In 1971 the Atomic Energy Commission asked the 25

6 Administrative Conference to examine governmentwide, the 2 possibility of using cameras in the Administrative Proceedings.

3 The Administrative Conference, by split vote, 4 recommended that with certain restrictions, cameras be 5

• permitted in proceedings in which there was broad public 6 interest.

7 Subsequent to that time the AEC again reviewed its 8 policy and said, no, thank you.

9 Early in '75 10 COMMISSIONER KENNEDY: What was their reason?

11 MR. FOUCHARD: Their reasoning was pretty much along the lines that it would be too distractive, sir. And pretty 12

• 13 14 15 much as I will get to in Alternative I, actually .

COMMISSIONER BRADFORD:

MR. FOUCHARD:

Distractive to who, Joe?

Distractive to the proceeding.

COMMISSIONER BRADFORD: You can't distract a 16 proceeding. Which individual would be distracted?

17 MR.FOUCHARD: Witnesses, board members.

18 CHAIRMAN HENDRIE: Reasonably distractive individuals 19 MR. FOUCHARD: Participants. That was the 20 reasoning.

21 COMMISSIONER BR.7\DFORD: Was there*actually -- I mean 22 did people assert the witnesses would be -- would somehow 23 lose concentration and be unable to testify?

24 Ace-F* I Reporters, Inc. MR.FOUCHARD: I think it was partially that, 25

7 mm partially posturing, partially, you know -- I don't know 2 that much 3 COM.MISSIONER BRADFORD: What kind of posturing?

4 It seems to me there are a lot of sort of generalized 5 fears behind the policy that we need to take a hard look at 6 them.

• 7 How much can a witness actually do by way of 8 posturing in front of a Licensing Board?

9 MR. FOUCHARD: You are kind of putting me in a 10 position of arguing against myself.

11 But in any event there was concern --

.12 CHAIRMAN HENDRIE: Then you know the argument .

• 13 14 15 COMMISSIONER BRADFORD:

argue at all.

I am not asking you to I am just curious about the history of the logic ..

MR.FOUCHARD: I think the logic was that the.

cameras would interfere with the testimony of the witnesses; 16 that it woull *.possibly lead to grandstanding or to playing to 17 the cameras.

18 It also was a concern*~that if we permitted lights, 19 it would, after .a certain period of time, get:~:awfully 20 uncomfortable.

21 COMMISSIONER BRADFORD: Well lights are another 22 matter.

23 MR. FOUCHARD: Yes, they are a separate matter 24 Ace-F* I Reporters, Inc.

entirely, it seems to me. That was the geneial,- I think, 25

8 mm gut feeling of the Commission at that time.

2 As Mr. *Yore has indicated,*only the FCC has 3 adopted the Administrative Conference recommendation at the 4 federal level. There is a considerable amount of activity 5 at the itate level. I think the CoITU}lerce Commission now 6 permits cameras. This was after a hassle which was somewhat 7 similar to our own, only on the state and local level.

8 There is a move afoot, of course, in the House 9 of Representatives of the Congress to permit camera coverage.

10 I think they actually 11 COMMISSIONER KENNEDY: Of the actual sessions.

MR. FOUCHARD: Yes, sir*.

12

• 13 14 15 COMMISSIONER KENNEDY:

Committee meetings, which are often MR. FOUCHARD: Yes, sir.

As contrasted* with the I think it is up to the Committee chairman, as I understand it.

16 So the House is moving in this .:direction. I 17 think the basic issue in the House, as I understand it, is 18 who will operate the camera, possibly.

19 (Slide.)

20 The alternatives are pretty straightforward. One 21 is to retain the present policy. It does maintain the decorum 22 of the proceeding, eliminates the distractions, doesn't 23 influence the behavior of the witness or the participants, Ace-*I Reporters, ~~- and I think an important point also is that we frequently use 25

9 mm federal courtrooms for our hearings, and this is the only 2 alternative which is acceptable to :.bhe federal courts. Most 3 judges just do not permit cameras, certainly in their courtrooms

- 4 5

and some federal judges even go so far as to bar them from the court buildings without permission of the U.S. Marshall.

6 COMi-.1ISS IONER KENNEDY: Is that a general proposition?

7 That is, if a courtroom is empty, it can't be photographed?

8 MR.FOUCHARD: In many cases this is true, yes, sir.

9 MR. ROSENTHAL: The camera will not be permitted in 10 the courtroom at all whether it is being used by the court ll itself, whether it is being used by another instrumentality such as an administrative agency, *or whether it stands vacant.

12 Virtually universal policy is no television cameras 13 in the actual courtrooms. And as Mr. Fouchard indicates, in 14 some instances the courts have even applied that to other 15 areas in the building.

16 COMMISSIONER BRADFORD: Who is going to be distracted 17 in an empty courtroom by television cameras? What possibly 18 justification is there for that course other than perhaps 19 the judge's fear if they ever let the cameras in they will never 20 get them out?

21 MR. ROSENTHAL: I think that is probably, in some 22 instances, is the nose of the camel under the tent.

23 I suppose in other_instances i t is just a feeling Ace-*I Reporters, 7n~. that -- perhaps an unjustified feeling -- that i t somehow 25

10 mm denigrates the dignity of the premises to have cameras.

2 Now of course I can't imagine why a television statio 3 would want to send cameras up to an empty courtroom anyway.

4 But as a practical matter you are talking about a courtroom 5 which is in use either by the court itself or by a federal 6 agency which has borroiWem.*: it.But, as to that, as far as I know 7 there are no exceptions in the federal judicial system to the 8 pr~hibition against cameras in the courtroom when it is in use.

9 MR.SHAPAR: Just another example of judicial tyranny.

10 (Laughter.)

11 MR. FOUCHARD: Well I believe it varies from judge 12 to judge. I*have had cameras in federal courtrooms a~G Licensin

• 13 14 15 Board hearings, but those were under our procedures before and after. So i t varies from judge to judge is my experience.

But generally speaking, I think that is true.

16 MR. YORE: But not during the sessions.

COMMISSIONER KENNEDY:* That is not a mat,ter of the 17 judge's concern, that is a matter of our own concern?

18 COJ'11.MISSIONER BRADFORD: That is the judge's concern.

19 COMMISSIONER KENNEDY: The judge would say you can 20 have the thing before or after the hearing, but not during 21 the hearing.

22 COMMISSIONER BRADFORD: And again obviously the 23 judge's concern, because it isn't any proceeding of his, it Ace-*I Reporters, ~n~. is just 25

11 MR. YORE: That is going to be a precedent for him 2 the next time he has a trial.

3 COMMISSIONER BRADFORD: So it is really just saying 4 that it will look bad if we say yes and he says no:

5 COMMISSIONER KENNEDY: The next question is, is 6 the use of federal courtrooms all that essential to us?

7 MR. YORE: 'i-vell, I think it is. I think if we 8 didn't ha\0_\the use of courtrooms, why the proceedings would 9 be far less orderly and effective than they are today.

10 COMMISSIONER KENNEDY: Why?

11 MR. YORE: Because the atmosphere at a Holiday Inn 12 or a motel, trying to run an adjudicatory proceeding, is j.ust

• 13 14 15 not conducive to a good COMMISSIONER-KENNEDY:

good federal buildings.

There are other kinds of MR. ROSENTHAL: Not adequate facilities.

16 I might say, Commissioner Kennedy, the Appeal Boards 17 as a matter of inflexibl~ up to this point, policy, have 18 utilized when they have heard argument outside of Bethesday 19 where.we, of course, use our own hearing rooms, utilize.

20 either federal or state courtrooms, and it is our strong feeling 21 that this adds an essential element to the dignity of the 22 proceedings and we would be very, very unhappy about being 23 required because of a relaxation of the camera policy or some 24 Ace-F* I Reporters, Inc.

other reason, to resort to motels and --

25

12 mm MR. YORE: Gymnasiums.

2 MR. ROSENTHAL: -- and gymnasiums and other types 3 of facilities.

4 Also, I might say the federal courtroom gives us a 5 measure of protection. I think we cannot get away from the 6 fact that a number of our proceedings have been confronted 7 with threats of disturbances.

8 If you ar.e in a federal courthouse you have got 9 resort, if necessary, to the Marshall service. And just the 10 fact that the Marshall service is available frequently serves 11 as a deterrent to attempts at disruption.

12 Now that is not the camera policy as such, but it certainly, it seems to me, is an element of this consideration 13 14 in that if the Commission were to relax the camera policy, I would be hopeful that the Commission would make it clear that 15 the first priority is the acceptability of the space even if 16 it meant, in the particular instance, that because it was a ~-

• 17 federal courtroom, under local ground rules television coverage 18 would not be permitted.

19 MR. SHAPAR: But hearings in the past have in fact 20 been held in non-federal courtrooms.

21 MR. YORE: .Where there is no courtroom available.

22 COMMISSIONER BRADFORD: How many times has anybody 23 attempted to disrupt an NRC hearing?

24 Ace-

• I Reporters, Inc.

MR. YORE: Quite often.

25

13 mm COMMISSIONER BRADFORD: What form does a disruption 2 take?

MR. YORE: Demonstrations. -

We have got one case 3

4 which I would like to save until my presentation, if you don't 5 mind. But, Columbia University, where a group of students 6 came in and conducted -- said they were going to absolutely 7 break up the hearing. This was in Manhattan in the Federal 8

Courthouse, Customs Courthouse in New York City.

9 COMMISSIONER BRADFORD: And you are going to talk 10 about that more during your presentation?

11 MR. YORE: Yes, I would like to.

MR. FOUCHARD: I think "it is fair to say though, 12

• 13 14 15 that that is more the exception tha:rir,;,_the *rule .

MR. YORE: Well, Hartsville, .*Skagit, I can name quite a few.

COMMISSIONER BRADFORD: Except, a demonstration is 16 one thing. How many of those have actually been. undertaken 17 with an intent to prevent the proceedings from going forward?

18 MR. YORE: That was the only one, I think. The 19 others were just -- were so disorderly that they had to either 20 recess the thing until things calmed down,or to ask the people 21 to leave the room.

22 MR. FOUCHARD: Well, we have already discussed 23 some of the cons with respect to TV News Industry. Their 24 Ace-

• I Reporters, Inc. position is obviously Alternative I, and they have stated 25

14 it to us on numerous occasions.

2 (Slide.)

3 Alternative II is to permit cameras on an unrestricte 4 basis. It certainly would open up news coverage; certainly 5 would satisfy the TV and newspaper cameramen, and it is conceiv~

6 abEthat it could provide some better understanding of the 7 licensing procedures.

8 The cons are that it would be difficult, it seems to 9 me, under conditions of lights, to carry out an orderly 10 procedure. It would be uncomfortable and movement of cameras 11 certainly would be a distraction to the proceedings~- to the 12 witnesses, to the boards;

• 13 14 15 It is conceivable the quality of decisionmaking could be impaired. And, of course, it is contrary to the rules of federal courts.

(Slide.)

16 Alternative III is --

17 COMMISSIONER KENNEDY: Can I ask about providing a 18 better understanding of NRC licensing proceedings. How would 19 that work?

20 My own impression of TV news is that it doesn't 21 contribute too greatly to the understanding of much. If one 22 looks at a typical TV news segment, it is less than a minute 23 in duration.

24 Ace-

• I Reporters, Inc.

Now, I'm not sure what that contributes to the 25

15 mm general learning process. Could somebody explain that to me?

2 COMMISSIONER GILINSKY: Walter Cronkite won't like 3 this.

4 (Laughter.)

5 COM.MISSIONER KENNEDY: He has he.ard it before from 6 people far more erudite than It.

7 MR. FOUCHARD: That's true.

8 (Laughter.)

9 COMMISSIONER GILINSKY: How do you know that's true?

10 (Laughter.)

11 COMMISSIONER KENNEDY: I accept the compliment.

12 MR. FOUCHARD: If you are going to walk the plank,

• 13 14 15 do it with your eyes open .

(Laughter.)

I think that the contribution to.understanding the procedure basically involves knowledge on the part of more 16 people; one that there is such a proceeding; two that the 1 :*

17 people can be heard; and three, their concerns are taken into 18 account.

19 Now I cannot g~ve you an informed judgment as to 20 how much of that will occur. I think some. But basically, I 21 think that is the answer to your question, sir.

22 COMMISSIONER KENNEDY: Is it argued ever that it 23 would be better to have the TV news segment of a minute,. *at 24 Ace-

• I Reporters, Inc. least carry 30 seconds of that minute, inside where in fact the 25

16 proceeding itself is occurring as contrasted wiihoutside 2 where only a demonstration is occurring?

3 Is that an argument?

4 MR. FOUCHARD: See, that is what is occurring today, 5 Mr. Kennedy, because they can't get into the hearing room.

6 COMMISSIONER KENNEDY: That will be helpful.

7 MR. FOUCHARD: Because they can't get into the hearin 8 room, they are doing one-on-one interviews outside the hearing 9 room with the various participants. This is not under the 10 restrictions of the hearing rooms, so the individuals who are 11 interviewed may have free range to say whatever they please.

12 That is what is happening today.

• 13 14 15 COMMISSIONER KENNEDY: Which is probably not helpful in the context of better understanding of the hearing process.

MR.FOUCHARD: In my judgment, no.

16 COMMISSIONER KENNEDY: Okay. Thank you.

MR.FOUCHARD: The third alternative is to permit 17 cameras, do not permit lighting, and to make them operate from 18 fixed positions.

19 This obviously would open up to a great extent.;~..::., -

20 There is less possibility of distractions, would meet the 21 needs of most TV stations. I emphasize most because the modern 22 minicams which are being used here in Washington and most of 23 the large cities may not be available in Dubuque; they may 24 Ace-

• I Reporters, Inc.

not be available in Long Island. The larger cities do have 25

17 them and they can shoot without light.

2 They would prefer light. They would much prefer 3 light in here. This is a poorly lit-room from the standpoint 4 of television, for example. So a lot depends on your local 5 lighting efficiency.

6 Again we get to the, might provide better under-7 standing pro, which is, I guess, somewhat debatable.

8 COM.MISSIONER KENNEDY: This would allow distractions.

9 MR. FOUCHARD: Yes,sir.'J'he con~,some distractions are 10 still possible. Witnesses would know that they are on camera.

ll There would be some small amount of noise from 12 the cameras. The modern minicams are pretty quiet, but the old

• 13 14 15 movie cameras, or television cameras stil:L~make.~.so:me, noise .

There is always the possibility that this would encourage demonstrations or tailored presentations. A'.nd it is contrary, of course, to the rules of federal courts.

16 COM.MISSIONER KENNEDY: How would that work) encourage 17 demonstrations and tailor presentations? How would you 18 visualize that happening? What does it imply, what does it 19 mean?

20 MR. FOUCHARD: I think it implies s+/-r;~that as we 21 have seen, people who .: know they are on camera, frequently 22 will take that opportunity to conduct themselves in less than 23 an orderly way.

24 Ace-

• al Reporters, Inc. COM.MISSIONER KENNEDY: Actors all.

25

18 MR. FOUCHARD: Yes.

2 COMMISSIONER GILINSKY: Couldn't it work the other 3 way?

4 MR. FOUCHARD: It could work to the -- but probably 5 not.

6 COMMISSIONER GILINSKY: That's an interesting 7 view.

8 MR. FOUCHARD: Well, I have watched eno~gh demonstra-9 tions on television, Mr. Gilinsky, to believe that human nature 10 works in that direction.

11 (Slide.)

12 Alternative IV is to permit cameras for only the

• 13 14 15 limited appearances with restrictions of Alternative III .

The li~ited appearances; of course, are not part of the evidentiary record. They would go partway in opening up the hearings.,,_, 'Again, some of the same pros and cons exist there.

16 For my part, the Office of Public Affairs, I would 17 like to see us attempt a tri~l-period, the~levising of our 18 hearings with the restrictions of Alternative III. This is 19 with the proviso that obviously we not try to intrude on the 20 policies of the federal courts.;. and we not permit a change 21 in the camera policy to influence our selection of space for 22 hearings.

23 (Slide.)

Ace.al Reporters, ~~- If we normally try for federal courtrooms, I think we 25

19

• mm 2

3 should continue to try for federal courtrooms.

My problem is, in Oklahoma City where we hold a hearing in a gymnasium, or in a Corps of Engineers auditorium.

4 Hearings to many people outside of Washington means more public 5

meeting than it does adjudicatory type hearing. We have 6

certainly tried 7

COMMISSIONER KENNEDY: That's its purpose isn't it?

8 MR. FOUCHARD: Public meeting?

9 COMMISSIONER KENNEDY: Yes.

10 MR.FOUCHARD: The hearing? No, sir, that is 11 adjudicatory.

12 CO~ISSIONER KENNEDY: Of course it is adjudicatory,

• 13 14 15 but it is also public. The purpose of holding it in the country-side rather than in Bethesda is to get participation.

MR. FOUCHARD: Indeed. Right.

16 COMMISSIONER KENNEDY: And attendance.

17 MR. FOUCHARD: What I mean by that is, that the 18 proceedings are conducted not as normal public meetings or 19 town meetings are, but under restirctions of the rules of 20 evidence.

21 COMMISSIONER KENNEDY: Simple, orderly procedure.

Ace-22 23 24 al Reporters, Inc.

MR. FOUCHARD: Simple, orderJJ.y_ procedure.

Well, I would prefer to see us try for six months, where we use facilities that are not in the federal courts, 25 and see if the distractions whiiliMe are concerned about are

20 real.

2 COM..t'l1ISS I ONER KENNEDY:

1 Would you rule it out in the 3 federal courts, if indeed the federal courts would make it 4 possible to use it?

5 MR. FOUCHARD: No,sir, I would not.

6 COMMISSIONER KENNEDY: Would you rule out attempts 7 to get the federal courts to let us use them?

8 MR. FOUCHARD: I believe it would be unwise for us 9 to try to change the procedures of a local judge. I think rathe 10 than*--

11 COMMISSIONER KENNEDY: Well one can always ask, can't 12 they?

• 13 14 15 MR. FOUCHARD: Well yes, certainly .

COMMISSIONER BRADFORD: Well at the moment aren't we asking whether the cameras can come in before' and after the hearings, or do we just,J.allow that on our own?

16 MR. FOUCHARD: We allow that on our own. Of course 17 if the rules of the hous.e are they are not permitted, why then 18 we have to follow the rules of the court.

19 MR. ROSENTHAL: I think if we let the judge feel that 20 we were pressuring him into relaxing or changing his policy to 21 our benefit, the end result would be we would be denied the 22 courtroom. I think it would be very unwise to endeavor to 23 persuade the particular district court to alter an established 24 Ace-

• al Reporters, Inc. policy of that court for our benefit.

25

21 COMMISSIONER BRADFORD: Let me understand what 2 the basis of this absolute~- well, I mean the taxpayers build 3 these buildings, and taxpayers pay judges~ salaries.

4 The judge didn't build this courtroom, he doesn't 5 own this.

6 MR. ROSENTHAL: The judge does, as a pnactical 7 matter, Mr. Bradford, own his courtroom. You may think, and 8 correctly so, that the taxpayers' money is behind it, but my 9 experience has been that within the confines of a particular 10 federal courthouse, the chief judge, or a collegial group of 11 judges are absolute di.ctators as to what goes on . .'._-.

12 The General Services Administration of New York

• 13 14 15 tried to alter some of the ground rules in Foley Square and were told by the District Court for the Southern District of New York, that the General Services Administration would be in jail if they pursued it.

16 So I think we can start with the proposition 17 whether or not this is good, bad or indifferent, this is, in 18 fact, life.

19 COMMISSIONER.BRADFORD: Well what is the source of 20 his authority?

21 MR. ROSENTHAL: Mr. Shapar would say judicial 22 tyranny. I don't know what the source is.

23 MR. SHAPAR: I would.

24 Ace-

• I Reporters, Inc. MR. ROSENTHAL: It is the power of the judiciary, is 25

22 mm what it comes down to.

2 COMMISSIONER GILINSKY: We seem to have uncovered 3 something.

• 4 MR. FOUCHARD: 1i'1ell as I said at the outset --

5 COMMISSIONER KENNEDY: I don't think uncovered it,--

6 MR. NELSON: May I add, I fully agree with what Allan 7 is saying about the power of the United States District judges 8 over their courts and the Court of Appeals as well. We all 9 know what happened when people wanted the Fifth Circuit to 10 move out of the Louisiana Fisheries and Wildlife building in 11 the French Quarter and start holding hearings elsewhere. It 12 took years before that ever happened, 10, 20 years.

• 13 14 15 And from the viewpoint of litigation, I would like to advise the Comrnissio.n against any attempt to pressu:ie-*any federal judge to allow (Laughter.)

16 MR. YORE: Hear, hear.

17 MR. NELSON: Part of what we get paid for is to do 18 business with those judges, and I don't want to do business 19 with them or have our people do business with them after 20 they have gotten through with Joe or somebody leaning on them 21 about their camera rules.

22 I would think that would be a most *unwise course of 23 action.

24 Ace-* al Reporters, Inc.

MR. FOUCHARD: My problem is at the Holiday Inn --

25

23 mm COMMISSIONER GILINSKY: I don ~:.t want to be the one 2 to persuade the judge either.

3 COMMISSIONER KENNBD¥: This is* less judicial

- 4 5

atmosphere than I had hoped_ for. ;

MR. SHAPAR: I would still submit that there is a 6 difference between pressuring a court and asking in a well-7 modulated voice.

8 MR. ROSENTHAL: Well, the judge may conclude the 9 request as being pressure. It all depends on the judge.

10 MR.FOUCHARD: Well, I think that this can also ll be turned around and used as a trial for the television industry. The television industry *wants to come into hearings.

12

• 13 14 15 Whether they can come in and do their business in an orderly fashion, I believe they need to demonstrate. And this would offer that opportunity.

COMMISSIONER BRADFORD: Of course there isn't any 16 real doubt about that, is there? I mean in terms of the 17 technology. They can set up the cameras pretty1unobtrusively.

18 The real question is what will then happen when 19 the cameras are there. You can't really hold them responsible 20 for the behavior of the spectators or witnesses.

21 MR. FOUCHARD: I agree with that. I think,

- 22 Mr. Bradford --

23 COMMISSIONER KENNEDY: Well just to:a point that's

!

• 24 Ace* I Reporters, Inc. true. One should never forget that the television news media 25

24 mm stages a good deal of what one sees, arranges for indeed the 2 right people to be appeaning at the right time.

3 It is their business. I applaud them for doing it 4 so;w.ell, but one should never assume what is going to happen 5 is a wholly and totally unrehearsed operation. Never assume 6 that.

7 COMMISSIONER GILINSKY: Are you saying that 8 intervenors are going to be --

9 COMMISSIONER KENNEDY: I didn't use the word 10 "intervenors~.* at*:any point in my comment, did I?

11 COMMISSIONER GILINSKY: Well anyone appearing at these hearings would be 12

• 13 14 15 COMMISSIONER KENNEDY: I am saying the television news media can pick out who they please to film.

CHAIRMAN HENDRIE: It has already happened, Vic.

COMMISSIONER KENNEDY: And arrange some of the things 16 they will say at the point they are being filmed. It has 17 happened.

18 CHAIRMAN HENDRIE: It has happened without TV 19 b;r:;oadcasts.  ;~There have been hearings in which the whole tone 20 of the proceeding suddenly goes through an abrupt change 21 because the guy from the local newspaper has dropped in and 22 it is his 15 minutes that afternoon at the proceedings to 23 see what is going on,his deadline is half an hour later, and Ace-*/ Reporters, ~n~. bang, all of a sudden people are on their feet shouting and 25

25 carrying on in order to make the next morning's paper.

2 He leaves, plunk, everything changes again.

3 So indeed, it does happen.

4 COMMISSIONER KENNEDY: But this is a fact that one 5 has to deal with.

6 CHAIRMAN HENDRIE: It is a fact that has to be 7 . dealt with. I don't regard it a compelling circumstance here.

8 MR.NELSON: It is a fact that Joe apparently 9

recognizes.

10 CHAIRMAN HENDRIE: There is a fair question of how 11 much educational value and communication value there is in 12 very short, what may be from at least -- bound to be from at

• 13 14 15 least one or another of the parties to use,.a prejudicially edited, 15-second segment.

On the other hand, you could get precisely the same effects now from coverage outside the hearing room.

16 MR.FOUCHARD: Indeed, in the printed press also, sir.

17 CHAIRMAN HENDRIE: That I s right, the print journalist:.

18 is free to come in,,*make his notes and go and say what he will.

19 So again, you know, one can't regard those consider-20 ations as compelling. They are simply circumstances to.:.:recognize.

21 Had you pretty well finished running through? You 22 have run out of alternatives?

23 MR. FOUCHARD: Yes, I have run out of alternatives.

24 Acf,-* al Reporters, Inc.

CHAIRMAN HENDRIE: Let's eee. Jim, do you and Allan 25

26 want to proceed? Both?

2 I assume you have your choice as the first.

3 MR. YORE: Since.,,we are the ones that have to go 4 out into the wastelands and grassroots and face the public, 5 I guess I ought to go first.

6 COMMTSSIONER KENNEDY: I hope there is a difference 7 between he grassroots and the wastelands~

8 (Laughter.)

9 MR. YORE: Well anyhow, I think our paper indicates 10 that we are opposed to any change in the present policy.

11 It has been the goal of the boards to try to have 12 as effective and orderly proceedings as possible. And we

• 13 14 15 don't feel that putting us on television is going to help attain that goal.

Now, the policy that we have today has been the policy of the Commission under nine -- under the leadership of 16 nine chairmen. It has been a policy for 30 years.

17 Having been here for those years, I think I could 18 spend all this morning recounting experiences which we think 19 would have an impact -- this change would have an impact on 20 oi.r. program. But I would like to have just a few minutes to 21 describe to you this Columbia University proceeding which we 22 mentioned previously.

23 This was a hearing at the Federal Courthouse, the 24 Ace-F* I Reporters, Inc. Customs Courthouse in the Lower Manhattan, and it was on the 25

27 mm application of the Columbia University for research reactors.

2 Now the first day of the hearing there were no 3 cameras whatsoever. A large group of alleged college students 4 came in at the beginning of the hearing and indicated that 5 they were going to break up this hearing, conduct a demonstratio 6 I say alleged students because **.they looked kind of old. I don't 7 know what the age level at Columbia is, but it is too bad Peter 8

isn't here he might -- well, furthermore, if they were college 9

students, their vocabularies were very limited because all that 10 they used were four-letter:::;<. words.

11 So the four-letter words were all over the place, 12 and finally the demonstration was getting/In the point where

• 13 14 15 we had to call the Marshalls .

The Marshalls came in and this is a big, distraction toa proceeding to have screaming males dragged out of the courtroom by the U.S. Marshall.

16 Well, the point of the story is this, and the 17 reason I am bringing it out, because I think it brings out the 18 attitude, reflects the attitude of the TV media.

19 The next day the cameras were all there.

20 COMMISSIONER GILINSKY: In your hearing room?

21 MR. YORE: Right outside, at the entrance.

22 The TV representatives indicated that they had 23 heard there was a lot of action the day before and where is the Ace.al Reporters, ~~- action today?

25

28 And we said, well, there isn't any action today, 2 i t was*yesterday. And we asked them, do you want to interview 3 the parties, representatives of the parties and. fi*nd out what 4 this is all about?

5 And they said, no, that won't be necessary. And they 6 packed up their equipment, and disappointed, went off to get 7 some other action in the Big Apple.

8 In other words, they were there for the demonstra-9 tion, that type of activity. They weren't there to find out 10 what the proceeding was all about and they left.

ll COMMISSIONER GILINSKY: What does that prove?

12 MR.YORE: I think that is typical of the attitude of

• 13 14 15 the TV media .

COMMISSIONER GILINSKY: Wait a minute. I guess I don't follow that.

You had a demonstration when you didn't have any 16 TV. So what does that prove about having TV?

17 MR.YORE: Well, I think if we did have -- we had the 18 cameras in there, why there would be more demonstrations than 19 there aJE today.

20 COMMISSIONER GILINSKY: Maybe.

21 MR. YORE: Could be, but this is our thought.

22 Now we feel that this proposal creates a forum for 23 actors, because people when they are on camera, really 24 Ace-* ol Reporters, Inc.

human nature being what it is, it seems that they have a 25

29 different attitude than they do when they are sitting in an 2 orderly proceeding under normal circumstances. We see it on 3 Candid Camera, we see it in sports spectacles where-they pan 4 the crowd and the people it is just a natural attitude, 5 acting up before cameras.

6 COMMISSIONER GILINSKY: Some Congressional* hearings<.

7 are on camera. What do you think of that experience?

8 MR. YORE: Well, I think there is some of it there.

9 But that is under very tight control, Congressional hearings.

10 COM...11.iISSIONER.BRADFORD: Was the demonst:r::ation in New 11 York about the most serious one you have had?

12 MR. YORE: We had one at Hartsville where you had

• • 13 14 15 the union representatives who were:Lin favor of the application .

Then you had the environmentalists who were opposed to it.

And that one was outside the courtroom, and we had to call the local police to break that one up.

16 But the courtroom was so small that they couldn't 17 get into it, so maybe that is one advantage of having a small 18 facility.

19 COMMISSIONER BRADFORD: Small and secure.

20 COMMISSIONER KENNEDY: That would argue for holding 21 all of your hearings in Bethesda. There wouldn't be any 22 local demonstrators.

23 MR. YORE: Well, we feel the people have a right to 24 Ace-* al Reporters, Inc.

know what is going on. They have -- if you are building a gas 25

30 mm station you have a zoning hearing in Bethesda. It gives the 2 people an opportunity to participate.

3 COMMISSIONER KENNEDY: But that also argues for as

- 4 5

open a facility as possible.

MR. YORE: True.

6 But on the other hand, i t is not an adjudicatory 7 proceeding which ours is.

8 Now the survey which we conducted which we got the 9 information we did get from the Administrative Conference, as 10 Joe has pointed out, there is only one agency, and that is the 11 Federal Communications Commission which is permitting cameras 12 at their adjudicatory proceedings.* And we feel that the FCC

• 13 14 15 is not typical of the other agencies in this respect .

We feehMhen* one considerstthe nuclear debate today and one only gets to look at what is going on in Seabrook, that the other agencies have less reason for following the rules 16 of the federal court than does the NRC.

17 As far as the six-month business, we feel once you 18 go downi-*.this road, why it is going to.be extremely difficult 19 to ever come back. You might as well feel that the decision has 20 been made.

21 In brief, _1our goal has been to try to have *:.*,

22 orderly and effective hearings.* ** We don't think TV will help 23 us in doing that, and therefore we recommend that we continue

• 24 Ace- al Reporters, Inc. to follow the rules of the federal courts.

25

31 MR. ROSENTHAL: Well I might say at the outset that 2 I do not think that the fate of the Republic hinges upon the 3 outcome of this particular issue.

4 Having said that, it does seem to me --

5 COMMISSIONER *.KENNEDY: That relieves me.

6 (Laughter~)

7 MR. ROSENTHAL: ~- on balance, that there is good 8 reason to retain the present policy.

9 I would say in the first instance that I entertain 10 the greatest skepticism that the informational needs of the 11 public will be served to any extent by permitting televised 12 coverage, and I say that for essentially the same reasons that

• 13 14 15 were alluded to earlier by Commissioner:,*.Kennedy .

What we are talking of here is not gavel-to-gavel coverage or coverage of a significant segment of the proceedings What we are talking about in virtually all instances is a 30-16 second, or perhaps 60-second segment on the evening news, and 17 I would submit to you gentlemen that even making all allowances 18 for the good faith and good judgment, if you will, of the TV 19 producer who makes the determination as to what will be shown 20 in that 30-second to 60-second segment, that it will scarcely 21 provide the public with any real perspective regarding what 22 is transpiring at that hearing.

23 Now, in terms of the public being informed that a Ace--al Reporters, ~n~.

hearing is going on, I can assure you that the newspapers in 25

32 mm these areas, give quite extensive coverage tol:the proceeding.

2 And so I would think that any literate member of the 3 public would be fully aware of the fact that there ls a hearing 4 without having to resort to the 30- or 60-second segment on the 5 news.

6 So I say on that side of it, that there is no dis-7 cernible public benefit.

8 And indeed, as I understand it, the requests for a 9 relaxation of the camera policy are not coming from members 10 of the public, persons who are unable to attend these hearings 11 but have an interest in them and therefore would like to see 12 television coverage of them. The requests, as I understand it, are coming exclusively from the news media, television and 13 radio stations themselves.

14 Now I don't think it is an accident that on the 15 federal side of the ledger, no court or federal agency, apart 16 from the Federal Communications Commission --

17 COMMISSIONER KENNEDY: And the Congress.

18 MR. ROSENTHAL: Well, I was going to finish 19 permits the televising of adjudicatory proceedings.

20 And I do submit that there is a distinction between 21 the televising of an adjudicatory proceeding .and the~televising 22 of a legislative-type hearing. The courts have recognized in 23 many different contexts, that the rules that govern a legisla-24 Ace-

• I Reporters, Inc:. tive-type hearing and the rules that govern a judicial or a 25

33 mm quasi-judicial type proceeding can well and should well be 2 in sm.1e respects, different.

3 COMMISSIONER KENNEDY: Could you explain why, Allan?

4 MR. ROSENTHAL: Yes. Because in the context of an 5 adjudicatory proceedings,the determinations are being made on 6 that basis of a fixed record. These are determinations really 7 of quite a different stripe thar those --

8 MR. YORE: Almost like the difference between 9 rulemaking.

10 MR. ROSENTHAL: Yes, they are not policy-type l1 decisions. The strictures on the conduct of judicial proceeding 12 for that reason have always been considerably tighter. But even

• 13 14 15 if you allowed for the fact that there is an analogy,. possible analogy between the legislative and the judicial proceeding, I, myself, have seen a few legislative proceedings on television 16 and I think an enormous amount of posutring goes on.

Indeed, I would say without meaning to be disrespect-17 ful, that some of these proceedings that have been televised 18 have had at least some of the aspects of a circus.

19 I think this is the kind of thing that we are trying 20 tmavoid.

21 Now, again the point I would want to stress is, if 22 I thought that there was really a significant public advantage 23 to be derived from televising these proceedings, I would say yes Ace-*! Reporters, ~~- we should assume the risks that go along with it and go ahead 25

34 and do it. At least on a trial basis.

2 No.t seeing any discernible public benefit, I do 3 not perceive any good reason why we should assume these risks, 4 and I think the risks are real ones.

5 Now I am not concerned about myself about people 6 being disruptive in the normal sense. What I am concerned about 7 is posturing, playing for the cameras. It certainly does go 8 on. I have even seen in appellate proceedings, which provide 9 many fewer opportunities for stage acting, if you will, 10 lawyers turning it on and turning it off based upon the presence 11 or absence of a representative of the news media. And that 12 does not add t~ the proceeding. It does not add io'.the dignity

• 13 14 15 of the proceeding, end I would submit that i t is extremely important that the dignity of these proceedings be maintained.

That is one of the reasons that we stress the use of a federal courthouse.

16 Some people might say i t really doesn't make any 17 difference whether you are in a federal courthouse or the 18 Holiday Inn. There is an atmosphere, and i t is an important 19 atmosphere insofar as I am concerned.

20 I think it adds a great deal to the adjudicatory 21 type proceeding. And I think what you open the door to here 22 is posturing. And i t is not simply on the part of witnesses.

23 If anything, i t is more likely to be on the part of lawyers.

-24 Ace-* al Reporters, Inc, And I will say in that connection I am not referring 25

35 exclusively to intervenor lawyers. I am referring to lawyers mm 2 on both sides of these controversies.

3 And i t just seems to me that there is no reason why 4 we should be, if you will, the pathfinder here; why we should be 5 the agency that says the judgment that has been made by the 6 federal courts, the judgment that has been made by other 7 federal agencies, is a judgment that really does not recognize 8 the public interest, and that we are going to arrive at a 9 different concept of the public interest and go forward in this 10 area.

11 For those reasons I would recommend that:the present 12 policy be retained. I would add simply only again, that if

• 13 14 15 the policy is relaxed, I do hope that the Commission will make it clear that space is the first consideration, because I would really be extremely distressed if I were confronted with a situation where, when we went out into the field, or the 16 Licensing Board went out into the field and there was a 17 federal courtroom available, required to eschew the use of 18 that federal courtroom simply because under the ground rules 19 which we would have to observe, we couldn't use the space, 20 and resort instead to what, from our standpoint would be clearly 21 less desirable quarters.

22 MR.YORE: This happened in Portland where we were 23 having the hearing in the Federal Courthouse, and of course, 24 Ace-

• al Reporters, Inc.

the television .. people couldn I t come in and they said, well 25

36 why don't you move, move fromthe courthouse and go someplace I 2 where we can televise~

3 Well, we didn't buy that one.

4 CHAIR.MAN HENDRIE: Howard, do you want to add 5 something from the side of one of the parties in these 6 enterprises?

7 MR. SHAPAR: I will be very brief on this.

8 The recommendation that was submitted in the paper 9 by Joe Fouchard was to be tried on a six-month basis. I am not 10 ~rnpressed with the slippery-slope argument, that we are 11 inevitably committed to this new policy, if we change it for 12 six months and can't back off. I think we can.

• 13 14 15 out.

The one argument that convinces me more than any other is the possibility of distraction. I think we can find I think we can learn something in six months.

I would add one other thing. I think quite clearly 16 this is the wave of the future. State courts are beginning to 17 experiment with television, the British Parliament is doing it, 18 the House of Representatives is thinking of it, the FCC has 19 started it. There is no reason why the NRC has to be the last 20 one on line. We don't necessarily have to be the first one 21 either.

22 So, I would try it on a six-month basis. If there 23 are distractions we can back off, and I think we can back off 24 Ace-

• al Reporters, Inc.

on the basis of demonstrated distractions.

25

37 To the extent there is posturing, the judges know 2 how to deal with posturing; they make their decisions on the 3 record. This is nothing new. And there is posturing now in 4 terms of the written press conference. So, there may be 5 additional posturing.

6 If there are distractions at the end of six months, 7 then we simply back off and we give as the reason the fact 8 that the proceedings were being disrupted and the participants 9 were distracted.

10 I would not be the last agency. FCC has gone first.

11 I would try it on a six-month basis.

12 COM.llilISSIONER KENNEDY: Can I ask, if we would do this

• 13 14 15 follow the caveat which you believe, Al, to be important, that is if we are to do it, space availability comes first.

Is that not inevitably placing pressure on the 16 federal judiciary? Because what i t is saying to the public is, 17 the NRC is fully prepared to allow television coverage with 18 the media; it is the federal judiciary with whom you have your 19 argument, not the NRC; if only they would let us do it we would.

20 Isn't that what they would say?

MR. ROSENTHAL: I had not thought about that.

21 Upon quick reflection I think that that is a valid 22 point, and that is what I would add as another reason to the 23 reasons I had previously assigned for not going this route.

Ace-*! Reporter~, ~~- I think that that possibility certainly does exist.

25

38 mm CHAIRMAN HENDRIE: Jerry, would you COITLment?

2 MR. NELSON: You might be able to mitigate that by th 3 wording of the policy.

4 If i t is the kind of policy that says NRC is in favor 5 of television cameras and p6ints the finger at the judge, I 6 would think that would be unfortunate.

7 If it is phrased in t~rms of the rules about 8 camera coverage shall _*be the, rules in effect by those who have 9 superintendence of the building, something of that nature, i t 10 might be a little less direct.

11 We supported Joe's proposal on an experimental basis 12 with the notion that if bad things happen, we can say bad

• 13 things happened and we are therefore not going to continue i t .

14 I would agree with Howard, that to do i t for six months does not commit us to do it for eternity.

15 I would strongly urge that there be no attempt by 16 gentle persuasion, pressure, or any form of communication, to 17 change the opinion of a single member of the federal judiciary 18 about what he or she wants to do in their resoective courtrooms.

19 With that qualification we would support an experimental program, 20 worded, I hope, with a view to somewhat diminishing the problem 21 that Commissioner Kennedy properly points out.

22 There is that risk which I don't think we thought 23 about. But the more I think about it, the less I really worry 24 Ace-* I Reporters, Inc.

about it. Judges know that TV men are banging on the doors 25

39 trying to get in all the time and they would probably just 2 take this as another opportunity by the industry to try to 3 get things dhanged. I don't think i t is fair to blame the 4 NRC for following the rules of the land they are in. In this 5 case they are in, say the United States District Court in the 6 District of Massachusetts. It is not unreasonable to say that 7 we live by the rules of the chief judge here, to Station WBZ, 8 let's say.

9 COMM:ISSIONER KENNEDY: Could I ask if that is the case, 10 A, and B, i t is also the case that both Mr.Yore and .Mr. Rosentha 11 indicate that by all odds wherever possible, that they would use 12 such courtrooms, what is this pol1cy?

• 13 14 15 It is a nonpolicy .

MR .. NELSON:

can't find one

• No, it is a policy that where they MR. SHAPAR: Well hearings have been conducted in 16

• places other than federal courts.

17 COMMISSIONER KENNEDY: How often?

18 MR. YORE: Quite,.*,a few places where you can I t find 19 courtrooms. I'd say 50/50.

20 MR.*ROSENTHAL: It probably will not affect the 21 Appeal Panel to any great extent, because we have always been 22 able to find a courtroom, and it has usually be a federal one.

23 COMMISSIONER BRADFORD:\ Courtrooms tend to be located i

24  !,_ _ _ - - - - - - - - - - -~- ------ ~ - - - - - - - - - - -

Ace-* al Reporters, Inc. in population centers. I guess nuclear plants sometimes aren't.

25

40 mm MR. YORE: This applies also to state courts, too, 2 because we follow the rules of state courts as well.

3 MR.NELSON: If this produced pressure on~the 4 judiciary in any way, Joe, why couldn't we say that the 5 experiment is a failure and* terminate it?

6 Wouldn 1.t . that be one of the grounds?

7 COMM:ISSIONER KENNEDY: Failure would be on the part 8 of the judiciary, this is my point.

9 MR. SHAPAR: Only if you start on loose cases.

10 (Laughter.)

11 MR. NELffiON: Well, it would be a failure as tar as 12 the judgement goes. That's a practical view.

• 13 14 15 COMMISSIONER BRADFORD:

difficulty selling that-one, Jerry.

MR. NELSON:

I think you might have some I'm speaking seriously to the problem Mr. Kennedy raised,which I think is a very fair observa-16 tion; that is that there might be an indirect kind of pressure 17 brought by the network or the media upon the judges that would 18 say look, this is your policy.

19 If we see that sort of thing developing, can't we 20 get out from under?

21 MR. ROSENTHAL: You won't lose the case. What we will 22 lose is the courtroom, and that is what is the concern of mine 7 23 that the judge is not going to decide cases, he is~g6ing to say, 24 Ace-* al Reporters, Inc. look, when I offer my courtroom to the NRC, what I get is a lot 25

41 flak from the news media. And the simplest way out is just to 2 tell the NRC we cannot make the courtroom available.

3 MR.YORE: Which they have done.

4 MR. ROSENTHAL: I mean these judges have total 5 control over it. They don't have to offer us the courtroom.

6 MR. NELSON: You are dealing with individuals in every 7 district, too, Mr. Kennedy. And they are not at all fungible 8 to these purposes.

9 COMMISSIONER KENNEDY: I understand.

10 Of course if that were the case, and the policy were 11 to have -- the policy *could be applied in cases other than 12 courtrooms, the fewer the courtrooms, the broader the applicatio

• 13 14 15 of the policy .

CHAIRMAN HENDRIE: Well that sort of tilt to the thing is just an inevitable situation.

16 It appears to me that a few things come through clearly, at least to me. One of them is that whatever decision 17 the Commission might make in this matter, it seems to me that 18 we ought to make very clear we support the boards and the 19 Appeal Panel in their desire to have maximum use of federal, 20 state courtroom facilities . for __ - proceedings that are carried 21 on outside of their own headquarters in Bethesda.

22 I agree that there is a considerably improved 23 atmosphere to conduct the sort of proceedings that they have 24 Ace-

• I Reporters, Inc.

to conduct when the surroundings are in a court building. I 25

42 think it is a valid consideration and I think we ought to 2 support them strongly.

3 It does seem to me that we move towards a time 4 in which the technology of television broadcast coverage begins 5 to allow a comparable level of noninterference with the pro~

6 ceedings that presumably applies to print journalism. We 7 never contemplated that a meeting nominally open to the public, 8 a print journalist couldn't sit in any part of the auditorium 9 and make his notes and then go off. ..And as l.J.the technology, 10 use Of h~tura~~~+/-ght cameras and so on improves so that the 11 physical distractions to the process become reduced, then I 12 think the distinction between television coverage and print

• 13 14 15 j.ournalism coverage diminishes and it becomes harder and* harder to see it as a fundamentally different proposition.

Having floodlights, you know, .and all of the people 16 carrying the floods back and forth and traipsing all over seems to me an unendurable circumstance for the general practice of 17 licensing hearings, and I would not support that.

18 It does seem to me that fixed locations, natural-19 light cameras are not an unreasonable proposition.

20 Let me see if I can locate a Commission consensus.

21 Maybe I am incorrect in sensing one, but let me see if I can 22 find one along a viewpoint,and then sort of creep up and see 23 where we are on an overall decision.

24 Ace** al Reporters, Inc.

First, would you agree with me that we ought to 25

43 protect in whatever policy we go forward with, the boards' 2 and the Appeal Boards' access to and use of federal and state 3 courtrooms?

4 COMMISSIONER GILINSKY: What does that mean?

5 CHAIRMAN HENDRIE: It just means that in whatever 6 policy we adopted we would make clear that the adoption of that 7 policy was by no manner or means intended to deny use of these 8 facilities to'-the board.

9 In particular, I have in mind that if you say I 10 would like to try some camera access for a while, I don't want 11 the boards to be pressured to move out of the courtrooms 12 because those at least in the federal system by and large they

• 13 14 15 can't use the cameras

• I think that pressure is bound to be exerted from the people on the TV industry side who are interested in the coverage, and I think the Commission would need by ex~licit 16 statement to provide protection to the boards against .. that 17 pressure. I think they would be unable to stand very success-18 fully against it on their own without explicit Commission 19 support.

20 So what I have in mind would be an explicit state-21 ment by the Commission on the question of whether or not 22 camera coverage is permitted in a given courtroom or facility, 23 is not a consideration for the boards to take into account in 24 Ace-F* I Reporter~, Inc.

deciding 25 L_________fl__ ---- -- -

44 mm COMMISSIONER GILINSKY: Well certainly not during 2 this six-month period. It was only a trial anyway.

3 CHAIRMAN HENDRIE: Yes.

4 COMMISSIONER BRADFORD: I think I'm inclined in a 5 different direction.

6 Yes, federal, state courtrooms are good places to 7 hold hearings. I spent five years presiding over hearings in 8 gymnasiums, Holiday Inns, law school auditoriums, civic centers 9 within the very limited state of Maine, in which civic 10 demonstration is not as normal a means of demonstration as it 11 is in some parts of the country. And we didn't have much 12 trouble with it.

• 13 Now those places are not as good places to hold 14 hearings. But there are grades of difference. That is, an auditorium is not a bad place to hold a hearing. A basketball 15 gymnasium leaves a little bit to be desi~ed, but even that 16 isn't impossible.

17 MR.YORE: Especially when there is a game going on.

18 (Laughter.)

19 COMMISSIONER BRADFORD: My feeling is, first of all, 20 that the experiment is a good one.

21 But secondly, that to the extent that one does feel 22 that whatever increased public access television coverage 23 affords is desirable, that rather than to encourage the boards 24 Ace* al Reporters, Inc.

to avoid it, what we ought to say is that some kind of good 25

45 mm faith effort ought to be made to find a good facility to which 2 access was possibie. Or, at the very least, that if we are 3 going to stay in the federal and state courtrooms, that I 4 guess as Howard put it,lin the lightest possible and most 5 deferential possible way, the judges at least be asked whether 6 they opposed camera coverage in proceedings that are not 7 court proceedings.

8 I ju~t think that to say thit we are going to open 9 it, but that we are going to abide without even raising 10 the questions, by the rules of the local courts, in many ll cases will result in noncoverage.

12 CHAIRMAN HENDRIE: Okay, so you -- that thrust is somewhat different from the one that I would have proposed 13 both extended, and as a*somewhat different direction.

14 So I will count\iyou as not part of my consensus.

15 COMMISSIONER GILINSKY: Let me understand --

16 COM.%ISSIONER KENNEDY: You may count me with Peter.

17 This is precisely the view that I was expressing earlier. I 18 think it would be a nonpolicy in effect to say on the one hand 19 we want the widest possible use, but we certainly want no 20 effort made which would in any way inhibit the use of federal 21 and state courtrooms. On the other hand say, and we will abide 22 by whatever existing rules there are without even questioning, 23 when as Howard rightly suggests, certainly we could go in a 24 Ace-* I Reporters, Inc. deferential way and inquire.

25

46 mm If we haven't done that, i t seems to me we haven't*.*

2 tried to:: implement a policy at all.

3 MR. YORE: I think we have inquired, Commissioner 4 Kennedy, whether cameras can be used before and after, and 5 during recess time in federal courts. We have done that.

6 COMMISSIONER GILINSKY: Let me ask you this. What 7 fraction of the hearings right now is taking place in federal 8 courtrooms'?

9 MR.YORE: Federal and state courtrooms. I would say 10 at least 50 percent.

11 But to break it down between federal and state, I 12 would have to check.

• 13 COMM:ISSIONR GILINSKY: But some of the states allow it 14 MR.YORE: Some do, some.don't.

COMMISSIONER GILINSKY: So you are really talking 15 about the federal courts.

16 MR.YORE: Quite a few state courts do not, though; 17 do not permit cameras.

18 COMMISSIONER GILINSKY: So perhaps a third of the 19 hearings would be in places where cameras are off limits?

20 MR.YORE: I would say --

21 COM.J."-'lISSIONER GILINSKY: *,.*So*;. by: going forward with 22 an experiment, basically, we would be capturing two-thirds of 23 the hearings, which seems like a reasonable experiment for 24 Ace-* I Reporters, Inc.

six months. We would just see.

25

47 mm CHAIRMAN HENDRIE: Okay. I think I see where we

• 2 3

stand on the courtroom question.

Now let me see if I can get a stronger agreement 4 with regard to the fixed-position, natural-light requirement.

5 COMMISSIONER BRADFORD: I have no difficulty with 6 that.

7 CHAIRMAN HENDRIE: Victor?

8 COMMISSIONER KENNEDY: I agree.

9 CHAIRMAN HENDRIE: I think that one, at least, is 10 clearcut.

11 Particularly in view of Vic's note that you capture 12 a fair part of the hearing market for potential coverage, do you feel it necessary if we talk about a trial program --

13

,the , words, "the seeking out of facilities where coverage 14 would be possible"?

15 COMMISSIONER'.BRADFORD: Let me put that this way:

16 I would certainly prefer to do the trial program that-simply 17 if we could not agree on this question, not to do it at all.

18 I would think we would want, though, at least to 19 say that in cases where the hea:iting would be held in the courts, 20 the question should be raised with the presiding judges, 21 obviously, tactfully.

22 COMMISSIONER KENNEDY: And with the full understanding 23 that whatever his judgment was, we would accept.

24 Ace-* I Reporters, Inc.

COMMISSIONER BRADFORD: My own preference would be 25

48 mm also for a requirement that a good~faith effort be made to 2 secur~~ facility in which coverage were possible, and yet at 3 the same time that offered the advantages of a courtroom in 4 terms of something approximating similar decorum.

5 At least in some areas, for example, law, schools 6 have facilities of that sort they might make available. Or 7 maybe you want to stay off university campuses after your 8

experience, Joe.

9 But there are other public facilities.

10 I suppose that is not absolutely essential, at 11 least during an experimental period. I think I would turn to it if it turns out that in most areas the coverage had not 12

• 13 14 15 generated serious problems .

. CHAIRMAN HENDRIE: I prefer to leave -- if you .. aan stand it -- I would prefer to leave it out in considering a trial period.

16 COJ~~ISSIONER BRADFORD: Leaving out even requests to 17 the judges?

18 CHAIRMAN HENDRIE: No. I think if Jerry thinks we 19 can keep from beginning to lose cases if the query is put in 20 a tactful 21 MR. NELSON: If you mean that in every case someone 22 from the United States Nuclear Regulatory Commission is 23 supposed to go to the chief judge or the re?pective district 24 Ace-

• ol Reporters, Inc. court, or the chief judge of the court of appeals and say, 25

- I

49 mm judge, won't you ~iet the TV cameras in, in as diplomatic and 2 as gentle arid as appealing a way as po~sible, I would advise 3 against that policy.

- 4 5

You are free to ignore that advice, if you wish.

It seems to me that the stakes of this agency with 6 the federal judiciary are very high, and arguably more important 7 than television cameras.

8 There are judges in this land who hold grudges, who 9 will remember that, who don't like the media, who get misquoted 10 all the time. There are other judges who wtll sit there ration-l l ally and calmly and discuss the matter with you.

12 At the very least, give the people enough discretion

• 13 14 15 to stay away from "old Judge So and So" if they know that this is going to send him up the wall.

Can't we do that?

16 Can't it be a case-by-case judgment?

MR. FOUCHARD: If you will give him the list, Jerry.

17 (Laughter.)

18

.MR. ROSENTHAL: I . think the other thing you ought 19 to bear in mind, is that these policies with respect to the 20 use of television cameras in particular courtrooms, these in 21 many instances -- I would say in most instances -- are not ones 22 that any:*.single judge is empowered to put forth 23 MR.NELSON: They would be in judicial conference.

• 24 Ace- I Reporters, Inc.

MR. ROSENTHAL: -- or to hold back in the particular 25

50 mm case .

2 I think it is really fair to say that to go through 3 the motions, I, as Jerry, would strongly counsel against it.

4 But we could go through the motions of politely asking the 5 judge to change his policy for our benefit, or for the benefit 6 of our relaxed camera policy. I think you ought to recognize, 7 however, that the likelihood that a policy would be relaxed 8 for our benefit in any particular court is extraordinarily 9 remote. So what we are really talking about is, we are either 10 allowed to use these federal courthouses, and if we do use them 11 there is no television~ or -~--~nd I would be horrified if it 12 came to this -- we will be put under some obligation to forego

• 13 14 15 the courthouse .

I just don't think that these requests in the real world are going to get you anywhere. These are ingrained policies 7 they are uniform, basically uniform federal policies 16 and the judges are not going to open the door to us simply 17 because we have chosen to be a pathfinder again in this area.

18 That is the real world, and I think you ought to face this 19 question in that light.

20 Would you disagree with me?

21 MR. NELSON: I agree with everythi:n<:J ;you say.

22 MR. YORE: I agree 100 percent, too, because I 23 think the judges out there are doing us a favor in letting us Ace-*I Reporters, ~~- use their courtrooms. If we change their whole system, they are 25

51 mm going to be mighty mad~.

2 COMMISSIONER BRADFORD: But they are only doing us a 3 favor within what may be the real world. But it is-within the 4 p~~posterous proposition that they, paid by the taxpayers, 5 control facilities built by the taxpayers. This isn't General 6 Motors' boardroom that they built and they own, these are public 7 facilities. And if they aren't using them they ought to be 8 available to other public agencies.

9 MR. NELSON: That is good theory.

10 (Laughter.)

11 MR. FOUCHARD: May I suggest a possible compromise 12 here.

• 13 14 15 If it is determined first that a hearing ~hould be located in a federal court for various and sundry reasons, then it seems to me that after that determination is made, we should go to the judge or to his clerk and say, do you have any 16 objection to -- and if the judge says ye~, that finalizes the 17 matter as far as I am concerned.

18 I think it is fair to say that the judges, federal 19 judges included, have permitted cameras into our hearings. I 20 have had them there.

21 MR. YORE: No, not in the hearing itself.

22 MR. FOUCHARD: In the hearing room. Right.

23 So cameras have been in~federal courtrooms in the

• 24 Ace- al Reporters, Inc.

United States, where they would not permit similar camera 25

mm 52 coverage in their own proceedings. I mean I have had them 2 there, I know they are there.

3 COMMISSIONER GILINSKY: Suppose we go forward on 4 an experimental basis. We may decide at the end of six months 5 that it is really a good idea to have cameras there, it is 6 pretty valuable and more important than being in a federal 7 courthouse.

8 Or, we may decide that they are disruptive or 9 whatever, and we don't want them at all and it would be just 10 a problem.

11 And I don't know that we need to face all these 12 issues.

• 13 14 15 CHAIRMAN HENDRIE: I must say my own position on the thing swings on whether or not we end up forcing the boards out of these facilities. And if that is the price to pay for it, 16 then I am going to vote against allowing camera coverage.

17 COMMISSIONER GILINSKY: But you may change your mind in six months.

18 19 CHAIRMAN HENDRIE: I agree with that. True.

20 COMMISSIONER KENNEDY: I don't see how asking the clerk or the judge whether he would permit them, and then 21 abiding by whatever his answer is, forces us out of the 22 courtroom. I just can't conceive of this.

23 CHAIRMAN HENDRIE: Well it seems to me that if you hav Ace-*! Reporters, ~n~.

some occasion to go to town, and there is a federal courthouse, 25

mm 53

• 2 3

and you go there and it is the first time you are there,and you ask the clerk, presumably -- you don't deal with the judge but with his staff -- whether the policy would allow 4

MR. NELSON: It all depends, Mr. Chairman. You can't 5

make these general, sweeping statements about these individuals.

6 You will get some that say;"They want to talk about cameras, 7

send them up. Let me see them. Come on in, Mr. Nelson, let's 8

discuss came.ras. Who do you represent?"

9 CHAIRMAN HENDRIE: The Nuclear who?

10 (Laughter.)

11 MR. NELSON: "I'll tell you about cameras. Let me 12 tell.you the last time . II And the guy has got you pinned to

• 13 14 15 the wall.

And if you want that stuff going on and you want to run ihat risk, all right.

16 What I am trying to suggest is what the agency 17 does --

18 COMMISSIONER KENNEDY: What is wrong with that?

19 MR.NELSON: What is wrong with that? Nothing is 20 wrong with it --

21 COMMISSIONER KENNEDY: Is it that you don't wish to 22 be lectured a bit by the judge?

23 After all, we sit here getting lectures from you 24 regularly.

Ace-

• Reporters, Inc.

25 CHAIRMAN HENDRIE: He is worried about constructing

54 mm an image in the federal judiciary that this agency is apt to 2 openiheir courtrooms one way or another, and whatever trace 3 prejudicial effect that has in some cases --

4 COMMISSIONER KENNEDY: I have greater faith in 5 the people who we will be proposing to be asking this question 6 of, than to suspect that the results of asking the question 7 would be,the judge would conclude that we were out to bust 8 his cour*troom. I don't think that that is what our people would 9 propose at all.

10 MR. NELSON: There are two comments floating about, 11 and:*~I would like to* respond to both of them.

12 The first seems to deal with the matter of being

• 13 lectured to by federal judges. There is nothing wrong with 14 that, Commissioner. It has happened to me for over 17 1/2 years of federal service.--

15 16 COMMISSIONER KENNEDY: That is why I was surprised.

MR. NELSON: -- ranging from criminal cases 17 arguing for the death penalty, to motor carrier railroad orders, 18 licensing orders of the Atomic Energy Commission, labor 19 dipputes, environmental cases and litigation up and down the 20 line in the Circuits and in the District ~ourts.

21 I have taken plenty from the judges through the 22 years, and God willing, I hope to be around for many more 23 years to take it.

Ace-*I Reporters, ~~- What is wrong about it is this: We have had a case 25

55 mm pending in the Southern District of New York, sir, 1hat raises 2 very important questions of preemption of the state's role in 3 regulating radiological health and safety which we contend is 4 our role, not the state's role.

5 -,LB. I have got to go in there and wrestle with that 6 judge about some camera policy and see him two or three months 7 later and try to argue a case in front of him, we have set 8 in motion a , .era in of events which may not be too helpful to 9 the advocacy on behalf of the United States Nuclear Regulatory 10 Commission.

11 COMMISSIONER KENNEDY: And you are carrying advocacy 12 to its extreme, extremely well, I would add.

• 13 14 15 The point is, and I keep coming back to this, I am not suggesting anybody go in and hand wrestle a judge for the use of his courtroom. I am asking only that we, in the 16 proper and deferential way, go to the judge or whever it is; 17 in his court is the person to go to and say, Ai -we would like 18 to use this court for this proceeding that we have coming up, 19 it is an adjudicatory proceeding of the agency; '.and, B, if it were possible to do so, we would like to have camera coverage 20 of the proceedings.

21 The: . guy says, you can use the courts, but over my 22 dead body will anybody bring a camera in here; I would conclude 23 the conversation has ended, except to say, thank you very much, 24 Ace-

• I Reporters, Inc.

we really appreciate the use of your courtroom and we obviously 25

56 mm wiil abide by the rules that you set for it.

• 3 2

idea, anway.

COMMISSIONER GILINSKY: This was Commissioner Kennedy' 4 (Laughter.)

5 COMMISSI:ONER BRADFORD: I think that is a very fair 6 statement of my own views of the matter.

7 COMMISSIONER KENNEDY: I-.can I t conceive of what is 8 wrong with approaching him that way.

9 If that is going to decide cases for us, I submit 10 that we are in a lot deeper trouble than I think.

11 COMMISS IONER:-BMDFORD: The only context we can put 12 it in perhaps is our own. If people came to us and said, can

• 13 we put television cameras, can we borrow your conference room 14 and put television:,*.cameras in, we might well say no, but I don't think that the next time they came before us as advocates 15 that we might --

16 MR. ROSENTHAL: You might not give them your hearing 17 room again, however if the news media then got on the phone 18 with you and said, here is this agency, is using your hearing 19 room, and they are perfectly prepared to have the proceedings 20 televised, but you are blocking it.

21 I think that rather than go through that hassle 22 again, the next time around you would deny them the facility.

23 COMMISSIONER KENNEDY: Al, if that is the problem, 24 Ace I Reporters, Inc.

• then I think that is what we need to discuss here. That is 25

mm 57 precisely the question I raised before, is the results of what 2 we might do.

3 MR. ROSENTHAL: I think that is a possible result.

4 And I again get back to the fact -- I think what really is at 5 the bottom of all of this are two considerations: How important 6 you regard television in terms of informing the public; and how, 7 on-:t:he *other side of this, how important you regard our having 8 access to courtrooms.

9 Now you may have just a different perception than we 10 do, but I think that our use of federal courtrooms will be 11 jeopardized by this policy.

l2 You may not think it is important that we use

• 13 courtrooms. I think it is extremely important, Mr. Yore thinks 14 it is extremely important.

15 On the other hand, as I said at the outset, I don't see that the public's needs, informational needs, are going to 16 be fulfilled by television.

17 So I would come down on a different balance than you 18 are coming down with. But I just hope that you appreciate the 19 fact that you go this route even on a trial basis, you are 20 putting into jeopardy our use of courtrooms. Now if that isn't 21 a matter of importance to you, well, we will live with what 22 you decide. But it is a matter of importance to us.

23 CHAIRMAN HENDRIE: Okay.

24 Ace al Reporters, Inc.

• Now this session has run 32 minutes, overtime. I do 25

58 not perceive in the Commission a sufficient proximity to any 2 sort of consensus position that I could hope to move us toward 3 in the next minute or two.

4 I therefore declare this session 5 MR.YORE: Mr. Chairman, could I have just one 6 statement please?

7 CHAIRMAN HENDRIE: I would prefer it to move. I 8 have two urgent matters to get to, Jim.

9 MR.YORE: Well, if you go ahead with this, we hope 10 that Joe will help us with manning the cameras at the hearings 11 and havea representati:ve-r:::, there.

l2 We are also short on blue shirts. We don't have any

• 13 14 15 of the attire to be appearing before cameras .

tance next.

CHAIRMAN HENDRIE: We will discuss procedural assis-I suppose you can file a claim under that.

16 (Laughter.)

MR.YORE: We hope that Joe helps us out.

17 MR. FOUCHARD: Happy to. Always have been.

18 CHAIRMAN HENDRIE: I would like to move the 19 Commission immediately to discussion of the next subject.

20 This concerns the procedural costs that participants have in 21 Commission proceedings, and is brought to us with some urgency 22 in the sense that we need to decide whether or not the 23 Commission is going to offer some procedural assistance, Ace-*! Reporters, ~~- transcript making and service,and the like to participants in 25

59 the S-3 hearing.

2 This.is moving forward, if we are going to do 3 anything for people in the S-3 hearing, we need to make that 4 decision and get it done and underway. And if we are not, it 5 probably would be helpful to the parties to have that clear so 6 that they don't move ahead and engage in the enterprise if they 7 feel they really can't afford i t without assistance.

8 There is, at the-same time beforetthe Commission, 9

a paper dealing with the general question of procedural assis-10 tance to parties at proceedings in all Commission proceedings.

11 It has been requested that we, have at lest a summary briefing, and in view of the time it will have to be a summary 12

• 13 14 15 briefing on that general proposition to provide a context for the Commission's decision on assistance to the S-3 participants.

I must warn you that there is yet one more matter on the Commission's agenda this morning, ai.d that I 16 intend to turn to that matter at whatever stage this discussion 17 is in at a quarter of twelve. I would hope we could decide 18 one way or another with regard to the S-3 help before we get 19 to the time deadline. Otherwise we will adjourn for that.

20 Now, do we have someone who would like to talk to 21 us about the general proposition?

22 Jim, I guess in a pretty summary fashion, let's then 23 try to put S-3 into place, a specific proposal against that Ace.al Reporters, ~~- background, and see where we come out.

25

60 mm MR. KELLEY: I will try to summarize briefly the 2 thrust of what we had to say in our paper last summer. It is 3 a matter of talking about different kinds of assistance and 4 then deciding, given those different kinds of assistance, who 5 ro _ ,you render it to; everybody, or some smaller group.

6 And we addressed four kinds in thab;paper. One is 7 the matter of in-house copies of filings. Our current rule 8 requires everybody to file and original and 20, 20 total.

9 When you come in with a motion, there are 20 copies, under the 10 rule. And there are costs of reproduction associated with ll that.

12 And so the possibility of assistance he~e is just to

• 13 14 15 say file an original and two,and we will run our machine and mak copies. This is for internal distribution, e~sentially.

The second category is transcripts in hearings.

Now again it can be a rulemaking, it can be adjudication. The 16 thrust of our earlier paper was towards adjudication. And the 17 transcripts a:iemost useful, I think, in adjudicatory context 18 because you have an ongoing hearing day after day and 19 participants, it is helpful to them to have a transcript before 20 the next day starts so that they can review the testimony 21 and prepare questions and staff out the case.

22 So the idea there was the possibility of free 23 transcripts to participants.

• 24 Ace- al Reporters, Inc.

And then the third category was the matter of service.

25

61 Here you are talking essentially mailing costs and the actual 2 process of stuffing envelopes and whatever else associated 3 with that.

4 And here the idea would be that the parties would 5 send their filing to us and the secretary here would Xerox 6 and mail to everyone on the service list.

7 There there is a separate problem that is a serious 8 problem. You build in some delay. And the reason is because 9 you use the mails twice.

10 Now there is a fourth category we didn't make a 11 recommendation on. It is not an urgent, immediate problem, 12 and that is the idea of consideration of free security

• 13 14 15 clearances, which run about $1000 apiece,tto people who want to litigate an issue involving classified information.

We did not make a recommendation on thaL:for various reasons set forth in the paper.

16 In terms of costs, the Secretariat did do a survey 17 of cases in 1976 and came up with what is conceivably some 18 rough estima:t:es, but I think they are adequate ballpark 19 estimates. The numbers in our paper assume that the assistance 20 we ar.e talking about would go to everybody, not just needy 21 people, however you are going to define needy.

22 Talking about the category assistance to everybody, 23 the reduction from 22 is a part of a larger figure which is 24 Ace-

• I Reporters, Inc.

the service number. Roughly, maybe this would run $75,000 a 25

62 mm year to Xerox these filings and make the other 18 or 20, 2 whatever we need, *internally.

3 The free transcript proposal -- and this is a free 4 copy to every party to the various proceedings, is in the 5 neighborhood of $250,000 a year.

6 And the service proposal -- this is serving every-7 body's papers, is in tbe neighborhood of $150,000 a year.

8 So you are talking, if yarwent with all three, you 9 are around possibly, a little under half a million dollars a 10 year~

11 Now there are various fine cuts one can make, but 12 the biggest cut would be if you decided on some definition of

• 13 14 15 need, to only give it to people who are determined to be in need of this. The idea*being that their participation would somewhat be impaired if you didn't give it to them.

16 And again, very roughly, I think you can cut those nubmers about in half if you talk about giving it only to the 17 needy as opposed to everybody. In a licensing case, I don't 18 see how a utility that has to show financial qualifications 19 can, at the same time, plead lack of funds to buy a transcript.

20 There are certain other participants in an antitrust 21 case, and I think participants that can probably afford it.

22 Interested states could afford it.

23 What you are talking about are intervenor groups.

Ace-*! Reporters, ~n~.

COMMISSIONER KENNEDY: Interesting, we had some 25

63 mm states that claimed they couldn't.

2 COMMISSIONER BRADFORD: That is really a decision of 3 priorities, though. The Attorney General's Office wants to spen 4 the money somewheres else.

5 COMMISSIONER KENNEDY: So it is in most cases.

6 MR. KELLEY: In the need area, very brief, I'm 7 trying to hold the time down -- I think what you have to realize 8 if you establish a need test, there has to be some consideration 9 of, are you going to litigate and argue about this, or just take 10 the person's word for it?

11 Our original suggestion was, it really didn't get 12 to that because we recommended giving it to everybody.

• 14 15 leans towards a rather simplified showing of need, and that would contemplate really that you are not going to argue about this. Somebody comes in and says* that they need it, it is a 16 practical matter they are going to get it, subject to some sort 17 of control of abuse power of the board.

18 But that is the way we were leaning in that regard.

19 Those are, I think, the highlights of what we had to 20 say. We did recommend, our office did recommend in favor of 21 cutting the copies from 20 to 2, providing free transcripts 22 with the subsequent suggestion possibly a :-.cutback to the 23 certification of need people rather than everybody.

.

• 24 Ace- I Reporters, Inc.

And the sticky problem of delay in adjudication, we 25

64 said in the first paper, we said we would into this some 2 more because it seemed*to us there may be big bulky papers 3 that could cut down on costs, we could::serve hem, but not 4 everything. And that way your delay factor w uld not be very 5 significant.

6 We have done some looking into thal .

7 8

without cau::::::::::ki::eo:n::p:: ::g::ut:h[:~:ew::::tb:erve 9

bulky papers where our service would help peo I le, but papers 10 ll 1

that aren't filed very often so that there wopldn't be -- we 12 wouldn't be delaying the procedure very often.

• 13 14 15 It seems that testimony, which is riled several times during a proceeding; proposed findings of fact, proposals 16 17 18 --co~ld-be- served without delay, and a large m:nmbr:of papers.::of:*:record.

- - - - - - - - -~~R. KEL~E;*;-~~-=--~:--~a-ven~~~-~~is:J-- looking at 19 this, we are in the process.

20 If we find on the basis of a study of some dockets, 21 that you could serve half the papers without ny delay, it 22 seems to us that would be worth doing.

23 If that review suggests that you a e going to build 24 Ace-

• I Reporters, Inc.

in delay, except for a few papers, then maybe it isn't worth 25

65 mm doing and we still have to individual -- I 2 MR. SHAPAR: We dug up a few facts on this that 3 we can give you briefly in a few seconds.

4 Jim Murray did the work.

5 MR. MURRAY: Well I think it is o ! interest in the 6 S-3 proceeding that we hava~been through thus far, if you 7 assume three extra days which is kind of optimistic for mailing, 8 you would have three extra days for the secretary to have to 9 mail them as well as receive the papers.

I 10 You would have one day for the sec~etary to reproduce I

11 and mail the papers, and I regard this very optimistic since I

some of the filings run into hundreds of papg s. And I think 12 1

• 13 14 15 if you do file papers for people they will be! less inhibited in the length of their papers.

I So you would have four days added lo every service deadline. Thus, in the S-3 proceeding thus far, over two 16 I

weeks of additional time would be taken becau e there is a 17 deadline for submitting testimony, a deadline for proposed 18 questions, a deadline for -~-objections and a deadline for 19 answers to questions, a total of 16 days.which, depending on 20 - I how seriously you view the time constraints, ~s involved.

21 This wasn't mentioned in the paperl befo:ie:you on 22 the S-3.

23 MR. KELLEY: This may shift us up tr S-3. I sort 24 Ace-* al Reporters, Inc.

of tried to summarize briefly what we had to say. Now Jim has 25

66 mm got some numbers on S-3, if you want to shif , toi*that.

I 2 CHAIRMAN HENDRIE, Why don't you g1 ahead,with that.

3 MR.SHAPAR: These numbers, I think, would be typical I

1 4 of any proceeding,the time delay, which is t1 e only point we 5 had to bring up.

6 CHAIRMAN HENDRIE: Now, with regarl to the S-3, 7 let's talk about that one.

8 MR. KELLEY: Leo had the lead on hat paper.

9 Do you want to summarize the situJtion with S-3 and I

10 what you are recommending?

11 MR. SLAGGIE: Well, the rulemakinJI is a bit different 12 from the adjudicatory procedures in some impoirtant ways.

• 13 14 15 There are many more participants. Generally re have:.something like 34 participants in the S-3 rulemaking, s[o the service burde of course can be substantial for those who ha* e to send out 16 these papers.

Also, the participants tend to be ~cattered around 17 I

the country rather than*_1ocalized as they might be with a 18 I

specific installation that you are considerin~.

19 I

So this has an effect on the need for transcripts, 20 I I

for example. I 21 With regard to a service delay that you have just 22 I mentioned,because there are so many participahts in a rulemaking 23 we haye'. '.:t1bt 1advocated for S-3, that everyb0dy be given Ace.al Reporters, 7n~. this free service; only those that would come in and certify 25

67 need.

2 We believe there would be no more than ten of the 3 participants that would come _in-~n~ _si_gn an -~ff-idavit to the 4

effect that they need servic_:_~n~-~~r~~ ~~-r~~ri_sct~t~.

5 Under these circumstances, not alll of the filings 1

6 will be delayed by the need for mailings, onl [ those from say 7 the ten people in the free service.

8 Becauserof this, I don't think i t I ould be necessa~y 9 to allow quite so much time between filings tr allow for this 10 extra delay. For example, at the beg*inning of[ a filing period, I

l1 presumably the majority of the participants who I would not be I

12 receiving free service would send all their m6.terial out to

• 13 14 15 everybody and you would be getting that to relpond to right at the start of the filing period, so you have g~t something to work on, in -,short, for the three days while ,,:frou are waiting 16 to hear, getfue filings from people who are g~tting free 17 service requirement. I 18 Also at this stage in S-3, I belielle Jim, we are 19 down to how many more filings?

20 MR. MURRAY: I think we have got twl more.

I MR. SLAGGIE: Two more filings. Olay.

21 COMMISSIONER KENNEDY: Would the lp days be on 22 each of those filings?

23 MR. MURRAY: Four days.

24 Ace-* a I Reporters, Inc. 1 MR. SLAGGIE: So I don't think at this stage any 25

68 mm delays would be .associated with the service wl uld be

• 2 3

significant.

1 Also, as far as making a distinctibn between who is needy and who isn't, it is probably more ilportant in a 4

ru 1 emak ing h were you h ave so many participants,

. . I rat h er .h tan 5

I .

6 give *':free service out to 34 people, you couHI. give them out I

to 9 or 10. I 7

1 8 As far as the need for free transcripts, I would 9 agree with Jim that the need for transcript is probably most I

10 acute in an adjudicatory procedure where you have an ongoing I

11 cross-examination and you want to see exactlylwhat somebody said yesterday so you can ask them a question today.

12 Now we are not doing that in S-3, so there will be 13 .I I

questions by the Hearing Board, but if there~is going to be 14 I

cross-examination, which the Commission hasn't yet decided, it 15

• as ub sequen t h earing wou ld b e in

• 1 a t er. However, I I beli'eve i't 16 is still open for participants to make sugges ions to the 17 Hearing Board for questions to be asked while the proceeding 18 1

is going on. The Hearing Board hasn't yet sel µpa specific 19 mechanism, but the kind of thing that I would anticipate would 20 be that the Board, at the conclusion of a ~ayr would say, if 21 you have any questibons to suggest that you waft the Board to 22 I

ask on what you heard today, suggest them now and maybe we 23 will ask them tomorrow.

Ace-*I Reporters, ~~- Now, in order to keep up with some hing like that 25

69 mm i t is certainly helpful to have*a transcript in hand.

2 It is also true that the informal Lethods used in II ,

3 an adjudicatory hearing where, I believe the Staff has an 4 extra transcript that can be shared out, is nbt going to ,-,.

5 work nearly so well when you have 9 or 10 peo~le who, presumably I

will need transcripts, that don't have them and are somehow 6

I 7 trying to share one or two transcripts that may be around. So 8 here I think you'*kind of have a cancellation,~he need for the I

9 transcript is not quite so acute because you are not cross-*

I 10 examining right then. On the other hand, it is much harder to I

I 11 get your hands on,.:one because there are more people who are 12 trying to share the limited number of extra tlanscripts availabl.

I 13 And finally, as far as the specifi~ 8-3 proceeding 14 goes, the Courts have stressed the need for v1ntilatio~ of all I

I the issues. The persons who are most likely to ventilate the 15 I

issues in a way that would oppose what the Corµmission has done 16 in the past on this, would be the persons who are requesting 17 assistance. And I think it puts the Commission in a better 18 light to be giving these people the maximum olportunity to 19 participate.

20 I

It seems that the availability of free transcripts 21 and assistance with service would further tha~ aim in the S-3 22 proceeding.

23

. til MR. MURRAY: Just a coup 1 e o f poin is._

Ace.al Reporters, ~~- In ~=:the first place, there is no mechanism for 25 I

__J

70 questioning after a day's proceedings that I am aware of.

2 And in view of the guidelines laid down by Commission for 3 this proceeding, personally I would obj ect it, if that would 4 be all right.

5 Number two, when we provide free srrvice for a single 6 participant in a proceeding, however many the~e are, that is 7 going to delay it a minimum of four days for lvery filing 8 period, unless, of course, you throw away the simultaneous I

9 filing requirement, which gives somebody an arvantage.

10 CHAIRMAN HENDRIE: What is the simultaneous filing ll agreement?

I 12 MR. MURRAY: When a deadline for filing something

• 13 14 15 occurs, everybody has to meet that deadline, lnless good cause is shown for not doing s_o.

I.

This way one party would file it wtth the secretary 16 and nobody would get his papers -- anybody else would get his 17 papers for four more days. So he wouldn't hate the benefit 18 of whatever it::was he was filing for an extra four days. And 19 an opportunity to respond would be reduced by that period.

20 CHAIRMAN HENDRIE: Well I think you end up having to build in allowance for that,--

21 MR. MURRAY: Yes.

22 CHAIRMAN HENDRIE: serving timel 23 MR. MURRAY: If you can tolerate, s an example, in 24 Ace-* al Reporters, Inc.

the S-3 proceeding, 16 additional days to whe~e we are now, we 25

71 mm just all filed our responses to questions, tnere is no problem.

2 It is a question of timing, I jusJ wanted to point 3 out, because it didn't seem adequately :ventilated that there 4 was a significant -- depending on how you loo[k at it time 5 penalty with this approach. It may be worth,hile.

---

----- ----- ---- - I 6 _ M~:- _sLAGGIE: ---~~-- s-_3 _:J1ere we havei only a limited 7 number of filings remaining for this specific procedure, these 8 would be 9 MR. MURRAY: Limited number of filings. It has 10 been my experience that 6:5. all of the rulemak:ings

- I 11 on record that we have had thus far, that fillings occur weekly; I

12 people file motions and motions need to be responded to.

I 13 So I don't have any sanguine hope fhat we would be 14 able to avoid, say 20 ':or 30 more filings befbre the proceeding is over. I 15 16 MR. NELSON: Is the 20 copies rule irl effect in that proceeding, Jim?

17 18 MR.MURRAY: I don't believe so. I It is certainly not the adjudicatory rule on 20 19 I copies~does not apply here. But everybody hak to serve everybod 20 I I

else, and when there are some 35 or so partictpants, you have 21 22 got to make 35 copies. l MR.SHAPAR: Of course this whole discussion has been 23 I I

about the legislative phase of S-3.

Ace-*I Reporters, ~~- I The Commission has held up the possibility of moving, 25

72 mm possibly, into an adjudicatory phase. I woulu assume that 2 whatever rule is urged with respect to the ad1'udicatory phase 3 for the legislative phase,-** would apply just as well for the 4 adjudicatory phase. But this factor needs t, be considered in 5 that context as well.

6 COMMISSIONER KENNEDY: Could I ask, Jim, if you are 7 talking -- you say you are not sanguine that we won't be 8 facing perhaps 20 more filings.

9 How many more days delay does that imply? 4 days 10 each? That is 80 days of filings?

l1 MR. MURRAY: At a minimum;*,Cornmissi ner Kennedy.

12 Some of these filings, as I say, w~ file:l.somelhing over 600 j

13 pages in response to questions, and we had ftled upon us 6n 14 that same day, something more than that in re!ponse to questions.

15 These things have to be digested atd responded to 16 within a time period. If the secretary can r~produce 1000 pages 17 or whatever and turn it around in only one dat,then it will only be 4 days of delay, assuming a 3-day mailing ,eriod. If not,--

18 COMi.~ISSIONER KENNEDY: That is 4 d ys for each of 19 those filings?

20 MR.MURRAY: Yes, sir.

21 COMMISSIONER KENNEDY: That is 80 ays.

22 MR. MURRAY: 4 times 30.

23 COMMISSIONER KENNEDY: Or, 120.

Ace-*! Reporters, ~n~.

MR. MURRAY: I don't mean that eve.Y filing, every 25

73 motion would have to be responded to by ever~I party, but 2 COMMISSIONER KENNEDY: But if i t h!as to be responded I

3 MR. MURRAY: But the notion that wJ have ~11 finished 4 with our filings in the S-3 proceeding, and at least that one 5 we can try i t in, I'm not as cert~in thati:thatj_is __ thecase. _ ~~--

6 COMMISSIONER KENNEDY:' If I understand procedurally what 7 occurs, if any party desires to respond,the time must be 8 provided.

9 MR. MURRAY: That's correct.

10 COMMISSIONER KENNEDY: Soi::that one arty I s response 11 will consume the time.

12 MR. MURRAY: That is correct, but ' t may not, for

• 13 14 15 example, inhibit the ongoing hearing, let's say, if i t is just I

a motion to do something with respect to the pearing.

I not inhibit continuation of the hearing. So ttat in that sense It may 16 i t might not delay things.

And I would agree that maybe those sorts of filinas 17 have come to near an end.

18 CHAIRMAN HENDRIE: Let's see, the provision of 19 I

transcripts is not a delay question?

l 20 I I

MR. MURRAY: No, sir.

21 MR. SLAGGIE: I would like to poin out with 22 regard to the delay question,,--

23 I CHAIRMAN HENDRIE: The serving b usifess,

. I ta k'ing 2 24 Ace-* al Reporters, Inc.

copies instead of 20 and cycling i t ourselvesl does involve 25

74 mm this delay, and the other thing --

2 MR. MURRAY: N:>, that's a bit different.

I 3 Those 20 copies are for internal 1se and-they are 4 generally not the kind of thing that have to get to people 5 immediately. They are informational copies rather than action copies.

s~3l 6

7 MR. KELLEY: It is also not in right?

8 MR. MALLORY: Yes.

9 MR. KELLEY: 20 and 2 is not in th,' s proceeding, not in S-3. I 10 I ll MR. MALLORY: That reduction would occur in 12 adjudication. In adjudication the party also berves every party;

• 13 14 15 he wouJdlserve the Staff, the Applicant --

CHAIRMAN HENDRIE:

1

• I I am just tryin~ to sort out the several proposals, the sev.eral legs to the support I

I table; the I

ones which have delays, eventual delays associated with them 16 and those that don't.

17 I

It seems to me that transcripts dor*t, these filings 18 do.

19 What was '.:the other thing?

20 I MR. MALLORY, The reduction of 20 topies to 2, 21

~hat would be filed on the Secretary in adjudication.

22 I

CHAIRMAN HENDRIE: That has some delay built into 23 I it also?

24 Ace** al Reporters, Inc. I MR. MALLORY: No, I don't think it does. The party 25

75 mm also serves all the other parties in addition to those 20 2 copies. Every party gets his copy immediatel1 Reducing 3 20 to 2 means that informational copies that ormally circulate 4 around in the Commission and wind up at vario, s offices would 5 be delayed, but that would not cause the hear*ngs to be delayed.

6 CHAIRMAN HENDRIE: Well, if it cuts down on time for 7 people's -- if it cuts down on the c~pacity to respond until 8 you have gotten copies reproduced and in hand, why then --

9 MR.MALLORY: But the people who are responding, 10 it will be served directly outside of the Secretary's reproduc-11 tion papers.

I 12 In other words, there are two separate proposals.

• 13 14 15 One is reduce the copies from 20 to 2; anothel one is that we I

reduce the copies even further by not requiritg people to serve them on the parties. I The first of those does not delay the proceedings, 16 the second does.

17 MR. SLAGGIE: I think it is helpful to keep in mind 18 I

that the significance of delay in rulemaking ts perhaps 19 different from the significance of delay in al licensing

.20

. I proceeding. In a licensing proceeding, one of your goals, of 21 course, is to get the license out. In a rule+aking proceeding, 22 your overall goal 23 (Laughter.)

24 Ace-

• al Reporters, Inc.

MR. SHAPAR: I don't think that S- is the best 25

76 mm example of that proposition with an 18-month !deadline.

2 MR. NELSON: The question is, had lit been done right 3 years ago in the Atomic Energy Commission, i1 would have been 1

4 over already, but let's not go through that.

5 Mr. Chainnan, on the point of delJy, there is always I

6 the possibility which we tried to envision inl the draft, of 7 . .

giving some d'iscretion

. t o the Boar d to cont~o 11 th'i s , sot h at 8 if th~re really are these 20 filings and the botential for 80 I

9 days of delay, and the Hearing Board sees i t coming, they 10 could stop it, say the proceeding is dragging, this is taking 11 too much, this is not the kind of a pleading that requires 12 service in our judgment, or any other ,.,thing in the discretion

• 13 14 15 of the Board .

I merely suggest that might be one way to have an escape valve if delays became inordinate.

16 MR. MALLORY: I think another way d.s when the I

17 rulemaking begins to look more like an adjudipation, to use

. d'icatory t h e proce d ures we h ave propose d f or a d JU I h earings.

18 19 When t h ere arerrotions tha t are more typica' l 1 o~ a d'JU d*.ica t'ion and are typically short, I believe they would not necessarily 20 be served. It is the 200-page testimony.

21 MR. MURRAY: There is no provision for oral motions, Ace-22 23 24 I Reporters, Inc.

for example, in the S-3 proceeding.

I I

And if it is patterned after the GESMO, which it is seeming to be, they won't let the I lawyers talk very much in that hearing room, bo it is all going 25

77 mm to be done by paper.

2 And it* has not been:.my experience, necessarily, 3 that motions are all that short; 30, 40 pages.

4 MR. MALLORY: Would you compare them to the 5 testimony?

6 MR. MYRRAY: Short, compared to the testimony, yes.

7 MR. MALLORY: So that we could help people substan-1 8 tially by serving testimony even if we decide d that motions 1

9 required too quick a turnaround.

10 MR. MURRAY: I wouldn't characterize how helpful 11 that would be. But i t would be helpful.

12 CHAIRMAN HENDRIE: Let's see, the delay is an

• 13 14 15 unfortunate aspect .

How much of the money turns out assistance turns out to be in that?

the financial.

MR. SLAGGIE: In S-3?

16 CHAIRMAN HENDRIE: No, in the portion of the 17 assistance which is involved with delays in t,he proceeding.

18 I

Is it 5 percent, or 95 percent th~t makes the 19 I difference?

20 MR. SLAGGIE: Well, the cost is pJobably, oh 21 roughly, half. I would say the cost splits, ]ree transcripts 22 and free service. At this stage it is a littjle hard to estimat 23 I I

because many of the big filings are already 8ast.

Ace-*I Reporters, ~~- In our memorandum we gave you som I figures which I 25

78 mm got from the docketing service branch to the ffect that it I

2 would cost about $4000 to provide free servi,e for all 3 participanbs, not just the 9 or 10 that we wduld expect would 4 have request~d it.

5 But since that time, filings have \gone by. We estimat 6 now no more than 2000, and a similar figure £or the rion-delay 7 part in the free transcript.

8 CHAIRMAN HENDRIE: There is one otHer way you could 9 do it. Rather than our taking filings from the parties, making 10 copies and mailing them out, would be to simplly provide some I

11 reimbursematt. or partial reimbursement for thel parties for 12 such a .mailing.

0 I

• 13 14 15 MR. KELLEY: You may run into a llegal problem there .

You are on the head of a pin, perhaps.

functionally they appear to be the same.

I ca~ see that CHAIRMAN HENDRIE: I think we woulld run into the 16 court case 17 MR. KELLEY: There would be an objrctionthat this 18 is funding intervenors. In a sense i t is, you are handing 19 out money.

20 I

MR. NELSON: I am not sure of the postal aspects of 21 I

this. We could send them out in franked enveCLopes and try 22 Ace-

• 23 24 I Reporters, Inc.

violation of the franking privilege.

CHAIRMAN HENDRIE: I wasn't thinkin.

l to bill people for those expenses. That may e~en be a about franks.

25

I 79 I

mm I was thinking about letting them mail the thiing and let I

2 them come in and say, my postage bill was $100; say all right, 3 we will pay half, all or whatever.

4 But I see you may indeed run back en the court 5 case as a matter. We may not have much luck there.

6 MR. KELLEY: I hate to admit that 1 he legal answer I

7 could be different between the two, because fhnctionally they 8 are the same thing. But I still think somebod would raise 9 the question.

10 MR.NELSON: Well the NRC itself thought that ll there was a distinction.

12 CHAIRMAN HENDRIE: Peter; comment?

• 13 14 15 COMMISSIONER BRADFORD: In terms of the practicality of the transcript, mayb~ I am thinking less nlw of the S-3 than I . ,

in general, but rather than making free transcripts all the I

16 time, is there something to be said for a rul~ that says that 17 in cases where we are convi=ed lliey are nece~sary, free 18 transcripts, but no more than three or four to any one proceeding?

19 20 MR. KELLEY: I suppose i t becomes aI question of I

whether it is worth the argument in a given case.

21 Somebody .could say, you should hlve given me a 22 I

transcript, my participation was impaired, th~refore throw out 23 the licenses. Is it worth hassling over thal, or give them I

Ace-*/ Reporters, ~n~.

to everyone?

25

80 mm COMMISSIONER BRADFORD: If they do:*t get one now, 2 they can make that argument, truly,_ if there were 3 or 4 -- you 3 wouldn't make them -- if you did that, you har 10 p~ople who 4 thought they de3ived them, presumably they would be 5 generally available on a schedule the parties worked out among 6 themselves -- you wouldn't say that 4 could grt them 7 MR. KELLEY: I thought you were di tinguishing, Joe 8 gets them, but Harry doesntt. You are saying 3 or 4 that would 9 be available?

10 COMMISSIONER BRADFORD: To the parties.

11 MR. NELSON: .

There is .

still . I a poinf to be ma d e, Jim,

- I 12 that there may be an argument well, why did w not get it in

• 13 14 15 this case when other people got it in case A?

It is no answer to say you weren't entitled to it in the first place, so it is just an act of aflministrative I

16 grace. You are not entitled to an appeal fro~ a criminal 17 conviction except insofar as Congress gives ybu one, but when 18 they give it it has to be done fairly, there rlan't be abuses 19 of discretion and so on and so forth.

20 There is plenty of doctrine in the law for things for people that weren't originally entitled t , but once they 21 get in there, had to be done right.

22 COMMISSIONER BRADFORD: But the wh@le point you are 23 I I

making implies that whether you give them to everybody in a given proceeding or

81 mm MR. NELSON: Goes to the picking df the case.

2 MR. BRADFORD: or 4 out of 10.

3 The only way to get around that is to give them 4 ir:reverybody at every proceeding? I 5 MR. NELSON: Or 3 out of 4 in everly proceeding.

I 6 I thought you had two ideas, Commissioner; one 7 that the cases would be picked in which you do it; and two, 8 when you said you would do it you would make, I say 3, instead 9 of for everybody.

10 COMMISSIONER BRADFORD: No, just the second point.

11 MR. NELSON: Just the second point.

12 I don't see too much trouble with rhat. There

• 13 14 15 would be a lot of argument between the people! as to who gets costsaving.

. I what copy and when it is available and so forth. That would be I

I 16 I

COMMISSIONE.R BRADFORD: As to the other

• point t h at I

• I 17 you make, are you saying that if we do it in S-3, the way I

I 18 we get out of doing i t in all those rulemakings, is to say that I

S-3 was a pilot? I 19 20 MR. NELSON: It is not only a pilot i t is ~unique because of the subject~matter; because of theilanguage of the 21 Court of Appeals calling for this ventilation; the criticism 22 I that the eourt made of the Agency's prior probeedings. In our 23 I

view the case is distinguishable, yes.

A c e -

• Reporters, ~n~. I Now that will not preclude people from arguing, if we 25

82 did it in S-3, please you did it for me in S-3, do it for me 2 in this case. The potentiality is always thee.

3 We believe it is distinct ..

4 COMMISSIONER KENNEDY: Has that ar'sen as the 5 result'.: of the GESMO experience?

6 Has that argument been made?

7 MR. NELSON: ,.Only in this case, I ruess.

8 Do we know of any other case, Leo, where people 9 have pressed for procedural assistance other han S-3?

10 MR. SLAGGIE: In GESMO.

ll MR. NELSON: I mean as a result of GESMO.

12 MR. SLAGGIE: This is the only one know.

• 13 14 15 COMMISSIONER KENNEDY: Have they cited GESMO as a basis for their argument, you did it in GEsko, why not do it here?

16 MR. SLAGGIE: No, nobody recited th t.

COMMISSIONER KENNEDY: Okay. That 's significant.

17 MR. MALLORY: I think one problem ith making a 18 small number of transcripts available in rule, aking, is that 19 when the hearings are over and people scatter back across the 20 count:i::-y, no one who hasn't bought a transcrip, any longer has 21 access. You don't have~the opportunity to hare one available 22 when you prepare your arguments, unless you pan to stay in 23 Washington where the transcript is, and incur the costs of 24 Ace

• al Reporters, Inc.

staying or flying back more times. So that t ere is that 25

83 mm difference when you make them available on less than one per 2 person.

I 3 COMMISSIONER BRADFORD: Now these prrties~ what are 4 they doing now? They are not getting next-da~ transcripts.

I 5 You are also saying that they just simply aren't getting I

6 transcripts at all except insofar as they may go to a: Public 7 Document Room?

8 MR. MALLORY: Yes, that's right.

9 MR. SL.AGGIE: A Public Document Rom has one, and 10 you have certainly nine or ten people that wolld not have 11 their own.

COMMISSIONER BRADFORD: And ..~each :: ublic Document 12 Rooms hasi:i one, or is it just the one here?

1I

• 13 MR. SL.AGGIE:* Just one here. I 14 I I

MR. MALLORY: In rulemaking. Adjumications there is 15 one here and where the hearing is held. I 16 I MR. SH.AP.AR: The local Public Docuient Room and the 17 I

one here in Washington. I 18 I

MR. MALLORY: Now I think there islprobably more 19 disagreement over whether we might serve peop{e documents and 20 I

the problems that delay causes there, than over transcripts 21 and perhaps over reducing copies from 20 to 2j 22 MR. MURRA: Y We d on ' t d'isagree wi'tJI that.

23 MR. SH.AP.AR: I don't think there iJ any disagreement 24 Ace-

• I Reporters, Inc. on the transcripts. The only disagreement, I think, is on the 25

84 service.

I 2 MR. NELSON: You are talking aboutl in S-3 or l

3 generically?

4 MR. SHAPAR: Generically.

5 MR. NELSON: How about reducing fr,m 20 to 2?

I 6 That always seemed*... to me to be a good candidate.

7 MR. SHAPAR: Who are the others wilhin the Agency I

8 that are getting the 18 copies? That hasn't ~een brought out 9 up until now.

10 MR. NELSON: Various offices.

11 Kathy?

12 MS. MASON: It is Chase's slots, and I couldn't

. I 13 tell you off the top of my head. It is an extra copy to ELD, maybe a copy to you all; an extra copy to the Licensing Board, 14 I

an extra copy to::Appeal Board that gets servea..

15 I

MR. SHAPAR: The reason for that question was, 16 whet h er or not t h e peop 1 e receiving I. . t e i. n t h e t h em part[.cipa 17 responses. If they do, then maybe in ef feet 1i t is delay time.

18 If they don't, there is none.

19 MR. MURRAY: Sometimes it is the engineer down the 20 line who is really working on the problem an I needs to have a 21 copy and the only copy he can get is the one counsel has, and 22 counsel is using it. If that is the case --

23 MR. NELSON: I just want to point out :.there'-is a Ace.al Reporters, ~n~.

distinction, because that is a requirement impose for our 25

I 85 mm convenience. That is different from helping ~he intervenors 2 push their case.

3 MR. MURRAY: True.

4 MR.SHAPAR: That is a point well taken I .

5 MR. NELSON: This is a problem we are fashionmng to I

6 help our selves. I 7 MR. SHAPAR: I certainly don't viel it in the 8 same dimension as the service problem.

9 MR. NELSON: To me it is a little ~asier.

10 MR. SHAPAR: Yes. Me, too.

11 MR. MALLORY: You also don't have mailing time.

1 I

12 There is the reproduction time, but the mailing ryI

• 13 MR. SHAPAR: That's right. That is it is not as 14 serious a problem.

15 MR. SLAGGIE: One more question wi I h regard to 16 delay. I You do expect a posthearing statemint to be filed 17 i

by most of the participants? I 18 I 19

-- -M~ -M~RI~Y :~- It is in the rules f~r the proceeding.

I MR. SLAGGIE: Okay, now there woul& be is there 20 I

any potential for delay in providing free service on that 21 statement, which is likely to be fairly bulkyl 22 23

---

:;:~. ~~: Four days at that stage is I not going to be.

that significant.

Ace-*I Reporters, ~~- MR. SLAGGIE:

I At that point there doesn't seem like 25 I

86 mm there is any significance. So it would:b~ at least possible

• 3 2 to offer free service for that major filing ~ithout any delay whatsoever.

4 MR. MURRAY: That would only impinrge on the person .

5 with whom i t is filed, which would be the Co ission.

I 6 MR

• SHAPA R:

1 I d on ' t th. i n k t h e Comm1ss1on I *

• necessar1* 1 y 7 wants to be in a position, though, of picking! and choosing 8 between which filings are going to be handled in a certain 9 way and other filings in another. That is nol[ the best: posi tio 10 to be in.

11 MR. NELSON: Well the Hearing Boar has.I the 12 acquaintanceship with the case to make an intrllige~~ j~d~~t

• 13 about that, I would think.

i 14 MR. SHAPAR: Well, I would suspectl that if you I

hand out discretion on an item like that, thrt it is only 15 going to be exercised in one manner.

16 COMMISSIONER KENNEDY: ' ;uniformly'~-

17 MR. NELSON: Fairly.

18 MR. SHAPAR: Fairly.

19 I

COMMISSIONER KENNEDY:--and uniformly.

20

,(Laughter.)

21 I

MR. SHAPAR: In the interests of justice.

22 I COMMISSIONER BRADFORD: Supposing ~he standards 23 - - --- ---- - ---- - -- - - - - - - --- --- -- I against which: discretion were made, were thal i t not be 24 ;_ --- - - - - -- - - ------ - - --- - - --- - - ** 1 Ac cl Reporters, Inc.

• applied in cases that would delay the proceed~ng, but would 25

87 mm be in all others, the only discretion then is the determination 2 whether or not delay is 3 MR. SHAPAR: Yes.

4 MR. MALLORY: If it is a decision that takes time, 5 then that will add delay in itself, if it has to be considered 6 whether we service this paper or not, and if it there is any 7 substantial time involved.

8 MR. SHAPAR: You would be getting a guments too, 9 Commissioner, about whether or not it was likely to delay or 10 not, you can count on that.

11 CHAIRMAN HENDRIE: Did you comment specifically on 12 the S-3 proposal, other than sort of noting t e delay problems?

13 Are you for it or agin it on balanbe?

14 MR. SHAPAR: Well, I would take info account there 15 may..,be a subsequent adjudicatory phase, so I would like. to 16 know whether or not the recommendation is intlnded to include the adjudicatory phase as well for S-3.

17 MR. NELSON: Why should we cross th t bridge now?

18 MR. SHAPAR: If your answer is that you are not 19 recommending it.

20 MR. NELSON: The answer is no, I ne er even thought 21 about that. I thought this was an experiment or the case as 22 we now know it.

23 COMMISSIONER KENNEDY: That doesn' make common 24 Ace** I Reporters, Inc.

sense to say that we would do this experiment for this phase 25

I I 88 mm I of the hearing. We anticipate that there ma] be another phase 2 to the same proceeding.

3 MR. NELSON: If nothing intervene in the meantime, I

I 4 Commissioner, I would think we probaply would want to follow 5

the same *approach. I 6

COMMISSIONER KENNEDY: That answeis Howard's 7

questiono I think the assumption has to be tJere is a 8

reasonably high probability that w_e woul_d_ be lfol_lowing the .

same approach, and that is what he ought to plan on answerir~g 9

his question on.

10 MR. NELSON: Subject to a showing that it really 11 did produce an 80-day delay, in which case ,he Commission 12

• 13 14 15 might want to cut i t out or sharpen it up.

MR. SHAPAR: In response to your question, the thing that' I

bothers me most is the delay factor, and I Mr. Chairm n, think from the Commission's vantage point, yqu know the 16 problems with S-3, you know the 18 months cuJoff period which 17 I

18  ::n~:ub:ne::::e:~ S::.is a question of how luch delay means 19 I -

I personally feel we could accept lthe _delay that 20 is involved here, but I would make a strong dichotomy between 21 I I

that and the general proposition of service Jnd of delay 22 I I

affecting other proceedings. I think we can accept, based 23 on my knowledge of the status of S-3, I think we can accept

• 24 Ace-Federal Reporters, Inc. as a direct response to your question, the de\la,y involved in 25 I

l,89 the S-3 proceedings .

But I wanted the Commission to ha e forcefully 2

brought to their attention that there is ad lay factor in S-3.

mm 3

4 5

CHAIRMAN HENDRIE:

Let me see if I can --

Okay.

COMMISSIONER KENNEDY: I have,. a q I estion.

I 6

Are we going to discuss the broadlr question 7

we are going to do that later, are we not? Je are not concerne 8

'with all of its ramifications today?

9 CHAIRMAN HENDRIE: Right.

10 I was going to suggest and hope tlat we might 11 arrive at a decision that I asked *_you, to see if I can find 12

• 13 14 15 piecemeal some agreement.

It seems to me .. that the providing of transcripts to participants who are willing to file an ffidavit that they are having financial problems and woul appreciate, 16 need that sort of assistance is a reasonable enough proposi-17 tion.

18 COMMISSIONER KENNEDY: That goes to the question 19 I was setting up. That is going to be the riteria. I guess 20 I need to know something about, what is the certificate or 21 affidavit, what is its force in fact? I

- 22 23 CHAIRMAN HENDRIE:

I Simply a state[ent of need.

COMMISSIONER KENNEDY: Then that lgoes to something 24 Ace-Federal Reporters, Inc. that was in the more general paper, which I kant to be sure 25

90

.mm that I understand what it means.

2 It _says in that general paper in ~his respect, on

- 4 5

3 page 3:

"We expect that well-established 1oups, such I

as the Sierra Club and the NRDC would alply for 6 assistance under this standard. And it is intended 7 to include them. However, we expect that license 8 applicants and industry members with reslources 9 orders of magnitude in excess of even tJe well-financed 10 intervenor groups will not apply and th~ certification 11 procedure was intended to exclude them. "i 12 Could you tell me how it includes one and excludes

• 13 14 15 the other?

How does it do this? What is it ifat I

they are supposed to say and how is it that they are s upposed to 1

16 certify to this?

And what is the e!5fect of the cert,ification, and 17 what responsibility develops upon us in accep!ting the 18 certification?

19 I MR. MALLORY: I think the form of rhe- certification 20 would be one of the group's, or the person's rbility to 21 participate in a proceeding would be substant~ally impaired 22 without the procedural assistance. I 23

• 24 Ace-Federal Reporters, Inc.

25 COMMISSIONER KENNEDY: He says this~

MR. MALLORY: He says that.

I I

91 mm And he provides a -- I think a very brief statement I

of his finances indicating something like hi~ overall financial 2

I p0sition and the amount of money heh. as allolated for the 3

proceeding.

4 COMMISSIONER KENNEDY: Does he indicate to us the 5 I I am forced to recall Mr. Bradford's comment earlier, where 6

the availability of funds in many cases is a matter of priority, 7

it is an allocation question.

8 I

Now, does he indicate to us the order of priorities 9

I of his allocation of available funds?

10 I

Suppose, you know, i t would be pe~fectly reasonable 11 I

to-;say that he has no funds at all, he only has $10 million, 12 I

• 13 14 15 but he has no funds whatever for this purpo~e because he has allocated all $10 million to other purpos\es'?

MR. MALLORY: If that.was really Jhe case he couldn't participate because there wouldn't bile anything for 16 him to file.

17 He has to have money to generate jhe things and file, 18 and people who are going to --

19 1 COMMISSIONER KENNEDY: He borrows from the $10 20 million which he intends to pay back, so that he won't, in any 21 way, impair the other prospect that he has.

22 MR. KELLEY: I don't think we contlmplated an 23 elaborate demonstration of internal budgets apd in-depth consideration in this kind of a certification. It is something

91

• mm fairly short.

2 It.does contemplate, as Rich said, intervenor I

3 groups who were established and have some molley, but will simply say that we* would be impaired without this, and indeed 5 we would contemplate less participation unle s you give it to 6 us. I I

7 In that instance, our proposal contemplates 8 accep t ance o f t h e certi'f'ication

. an d provision

. . I o f assistance.

. I 9 MR.NELSON: We thought, right or w~ong, that it would 10 chew up more time and be more costly, to geJ us into some I

11 involved showings and determinations aboUt n~ ed than it would 1

12 be to file the affidavit and get on with it.

• 13 14 15 the US NRC.

Certainly to put this agency in th!e role of second-guessing priorities would be a very difficult position for 16 COMMISSIONER KENNEDY: Well we just did it.

17 MR.NELSON: You would have to say --

1 18 COMM:ISSIONER KENNEDY: Tha t is exa ctly my point.

1 I

19 think that is exactly what this paper says we have done and we propose to do. It says: I 20 I

21

" . . . we expect that license applirants and industry members with resources orders ot magnitude 22 I in excess of even the well-financed inte~venor groups 23 will not apply and the certification proledure was

• 24 Ace-Federal Reporters, Inc. I intended to exclude them."

25

92 *

mm The point is, they may well have an allocation of 2 resources which doesn't contemplate a further effort .in this 3 regard, and they will have_to readjust all of their priorities.

4 They may have in such a case, by this definition that you 5 are giving me, the same kind of need. But i t says here the 6 procedure was intended to exclude them.

7 And I guess I don't understand the reasoning.

8 CHAIRMAN HENDRIE: I think all you would ask is for 9 a party to file an affidavit with the Board saying that he 10 did not have.fue financial resources to make an effective 11 contribution without whatever procedural assistance would be 12 offered here.

• 13 14 15 The Board would take that under advisement,. and construct a reasonable proposition; they would say okay, if not they would say no.

16 If they get such a proposition from -- I don't know 17 Commonwealth Edison, why I would be surprised if the Board 18 wouldn't find that curious, to say the least.

19 MR.NELSON: That is exactly what was intended.

20 COMMISSIONER KENNEDY: I think I might find it in som 21 of the well-established intervenor groups, whose resources are extensive indeed, as we have already seen in at least one 22 proceeding here, on their own demonstration.

23 CHAIRMAN HENDRIE: Similarly, if you got a filing

• 24 Ace-Feoeral Reporters, Inc.

like that from -- I don't know -- the State of Illinois, why 25

93 you would be pretty surprised about that, too .

COMMISSIONER KENNEDY: We have had a case in which 2

~ state indicated it was hardpressed, and indeed --

- 4 5

3 State.

COMMISSIONER BRADFORD: You got it from New York CHAIRMAN HENDRIE: That is a different case.

6 MR. KELLEY: They would qualify.

7 (Laughter.)

8 MR.SHAPAR: They would file a pauper's oath, and 9

you wouldn't look behind it.

10 MR. MALLORY: I think the one distinction we are 11 drawing here between say the Sierra Club, who certified to 12

• 13 14 15 us in the GESMO proceeding that1hey had about a $6 million a year budget, or something on that order, and people with budgets on the order of hundreds of millions of dollars.

COMMISSIONER KENNEDY: No, no, no. Wait, wait.

16 Hundreds of millions of dollars to a utility are 17 not hundreds of millions of dollars for intervention or 18 participation in a proceeding. They are hundreds of millions 19 of dollars to operate a plant and a facility, for Christ 20 sake.

21 That is our problem here. We just don't differentiat

- 22 23 between the resources the individuals, corporations or whatever have available to participate in this kind of proceeding.

Ace~I Reporte,s, ~~.25 We have the unique notion that all of the resources of the

94

• mm 2

corporation are available for participation before this Commission. Tµat simply is not true, and no Public Utilities 3 Commission would permit it.

4 Now that is our problem. You know, we are talking 5 about hundreds of millions of dollars. They don't have 6 hundreds of millions of dollars to come before this Commission.

7 They probably have fewer than the 6.

8 MR.MALLORY: I don't think the Commission was saying 9 in GESMO that they have $6 million to come before it in GESMO, 10 the Sierra Club had-all $6 million to come before us in GESMO, 11 or that that ought to be made available, or that the Sierra 12 Club ought to be expected to detour all those funds to

• 13 14 15 participate in GESMO. And that a small, probably only a small fraction could be expected to be made available there.

CHAIRMAN HENDRIE: Well, an alternative requiring 16 9 ome sort of certification, is to offer the procedural assistanc 17 to all parties, and that certainly is a possibility.

18 MR. MALLORY: We think this is an improvement on 19 it because it cuts down the amount of assistance that we give 20 without incurring what we think will be substantial costs into 21 a GESMO-like investigation on a filing.

CHAIRMAN HENDRIE: Iri effect this would *say that a 22 participant can receive these procedural assistance measures 23 if we agree to them, simply on his own statement that he

• 24 Ace-Feoeral Reporters, Inc.

needs them in order to contribute effectively?

25

95 mm MR. MALLORY: That is essentially true.

2 There would be some information behind it, but it 3 would not be looked at very carefully in the average case.

4 CHAIRMAN HENDRIE: Then one would leave it to the 5 parties to decide whether they want to make that statement 6 on their behalf or not.

7 COMMISSIONER KENNEDY: There is egalitarianism 8 carried to its ultimate. It is a relief program under the 9 guise of procedural assistance.

10 If procedural assistance has any merit, it seems 11 to me it is because it enables the proceeding which the 12 Commission is conducting to go forward more effectively and

• 13 14 15 completely. And in such a case I think*. to the extent procedural assistance is afforded, it should be afforded across the board with that precise purpose in mind, whatever the cost 16 might be.

17 CHAIRMAN HENDRIE: I have no fundamental difficulty 18 with across the board. I think it will turn out to be 19 anomalous in a number of cases, and will raise

• some questions_*

20 that we will have difficulty with.

MR. MALLORY: Well we don't have.* substantial troubles 21 with that because we proposed it in the first place.

22 This one we think saves money without being unfair.

23 And the primary advantage certainly, when you are concerned with things like transcripts and copies, is a savings of money.*

96 mm CHAIRi'\1.AN HENDRIE: Do you suppose you could manage 2 a series of votes or quick expressions with regard to some 3 standard for assistance, if such were to be offered.

4 How many would be in.:favor of all participants 5 without qtialification?

6 I take it you would?

7 COMMISSIONER KENNEDY: I would.

8 COMMISSIONER GILINSKY: Could we just check on what 9 the differences in expenditures would be?

10 MR.NELSON: Our paper shows doubled.

11 COMMISSIONER GILIN$KY: A factor of two.

12 MR. KELLEY: Is this just S-3, or generically?

• 13 14 15 COMMISSIONER KENNEDY: That is all we are talking about today, S-3.

MR. NELSON: I assume the same double assumption 16 would apply.

17 COMMISSIONER GILINSKY: We are just talking about 18 S-3?

19 CHAIRMAN HENDRIE: We are talking about S-3 and 20 the total sum of money is not really -- it is small enough so that it is not a significant issue against the budget.

21 MR. KELLEY: Leo, didn't you say about ten people 22 rnight qualify?

23 MR. SLAGGIE: We got a feeling about ten people.

• 24 Ace-Feoeral Reporters, Inc.

I should say I would be rather surprised if 25

97 Commonwealth Edison came in and asked for assistance.

2 MR.* NELSON: Well the question is, suppose it were 3 made available to everybody, including the Commonwealth Edisons 4 and everybody else?

5 COMMISSIONER KENNEDY: All participants. 34 or 35, 6 correct?

7 MR. MURRAY: That is correct, Mr. Commissioner. I 8 think some of the participants, however, have consolidated 9 so the exact number of parties filing* ~~rving may be less:

10 CHAIRMAN-HENDRIE: One of the things we haven't 11 noted is that these procedural assistance measures do tend 12 to remove incentives to consolidate, which in many ways are

• 13 14 15 useful in the sense of, well --

COMMISSIONER KENNEDY: Which is a good point.

CHAIRMAN HENDRIE: let me go down the line.

16 For all parties? A vote for all parties is 17 obvious.

18 Against all parties then might or might not be 19 in favor of asking them to express, you know, say that they 20 need the help and so on.

21 COMMISSIONER GILINSKY: I missed part of the session.

22 I would like to rehear it, first.

23 COMMISSIONER BRADFORD: Perhaps in S-3 it doesn't

• 24 Ace-Federal Reporters, Inc.

25 make a big difference one way or the other. Conceptually I have some difficulty I think with extending assistance to all

98 parties. Utilities, after all, are in a situation where, 2 granted they can't devote all their revenues and moneys to 3

proceedings, before the Nuclear Regulatory Commission. Neverthe~

---

- - - ---~- ----- - ---

4

.less they can recover, or they can use as a basis for setting 5 rates, all of their expense in participating in regulatory 6 matters.

7 COMMISSIONER KENNEDY: But in that case, Peter, all 8 we are doing is taking it out of one pocket from the taxpayer 9 instead of another. And I.would suggest that it would be a 10 hell of a lot better in the long run to put it up for what 11 it is. Let the taxpayer see the cost of the regulation he is 12 getting in a direct sense, and not put it in his rates .

• 13 14 15 COMMISSIONER BRADFORD: Except that it is a different set of taxpayers. That is, let's just assume -- I don't know whether it is true or not -- the State of North Dakota has no 16 nuclear plants. Nevertheless the citizens of North Dakota 17 pay federal taxes. So they will start paying for the S-3 18 proceedings; for this part of the S-3 ~roceeding, whereas they 19 don't now.

20 You can have a fine abstrac.t argument about whether 21 that was good or bad. But there is some difference.

22 COMMISSIONER KENNEDY: Agreed.

23 COMMISSIONER BRADFORD: I guess on balance I

~ 24 would, for the 5_:.3 proceeding, just as soon go ahead with Ace~al Reporters, Inc.

25 on the transcript question, go ahead with the ODC recommendation

99 mm of transcripts to people willing to certify need.

2 In .my own mind, looking further ahead, I think maybe 3 a more sensibiLe formulatiom,would have to do with some percenta e 4 of those certifying need, or with a £ixed upper ceiling on the 5 number of transcripts, depending on the proceeding. Then 6 people would want -- and they might be available to all parties.

7 But then people who wanted to be sure that they had their 8 own transcripts the next day could pay for it, and those who 9 were indigent or for other reasons didn't feel it worthwhile, 10 could avail themselves of the communal transcript.

11 COMMISSIONER GILINSKY: I would say that our 12 decision be affected by what the difference would be one way

• 13 14 15 o*r the other in terms of money.

CHAIRMAN HENDRIE:

$4000 the other?

In other words if It is like $2000 one way and 16 COMMISSIONER GILINSKY: In this case it really doesn' 17 make a difference.

18 COMMISSIONER KENNEDY: We are not settling any cases 19 except this one, as I understand it.

20 COMMISSIONER GILINSKY: I was just looking ahead a 21 little bit.

MR. SLAGGIE: I would like to make a point about the 22 cost of the transcripts.

23 The $2000 cost of the transcripts assumes that we

- 24 Ace~al Reporters, Inc.

use the Commission's duplicating facilities. Now if we do 25

100

.mm that the transcripts will probably arrive not precisely at 2 the time the hearing opens, but a couple of hours later.

3 Now our feeling was that because there is no cross-4 examination going on in this, and these things -- under these 5 circumstances we can give it out free anyway, that that is an 6 inconvenience which is relatively minor, that it is well worth 7 imposing on people who take free transcripts.

8 On the other hand, if you were extending this 9 service to absolutely everybody, the people who were to take 10 transcripts duplicated by the Commission would be getting them 11 later than what they get now when they order them directly 12 from the contractor.

• 13 14 15 sure.

Now how that will fuzz things up I am not entirely COMMISSIONER GILINSKY; What I mean is this. If 16 we would normally be supplying free services for a small 17 fraction of the participants, then it doesn't make sense to 18 extend it to everybody.

19 CHAIRMAN HENDRIE: I think the estimate is like 10 20 out of 30.

21 COMMISSIONER GILINSKY: I guess, you know, if we are really talking about half, it may well make sense just to 22 23 do -- (Inaudible.)

CHAIRM.l\N HENDRIE: So you tend to vote for asking 24 Ace-

• al Reporters, Inc.

25 for an application saying I need the help?

101 mm COMMISSIONER GILINSKY: I think in this case -- if 2 this is a typ~cal case, I guess I would give it to everybody.

3 CHAIRMAN HENDRIE: You would go for everybody.

4 COMMISSIONER GILINSKY: Yes.

5 MR. NELSON: Aren't you forcing utilities to take*

6 the federal money if it is there?

7 COMMISSIONER KENNEDY: You are not forcing anybody 8

to do anything.

9 MR. NELSON: If I am running a utility and I see 10 NRC is going :..to. pay_ for this stuff, I am going to come in and 11 get my money.

12 Do you want to produce that result?

• 13 14 15 COMMISSIONER BRADFORD: In fact the State Commission r would want to know why you didn't do that.

CHAIRMAN HENDRIE: Well look, I feel a need to move the Commission forward.

16 I have got two votes to give it to everybody, right?

17 I believe I read that right.

18 This is just with regard to the standards you would 19 impose if we decided on assistance.

20 I am going to ask you in a minute now about 21 transcripts and so on. This is just strictly S-3. Okay?

- 22 23 I'll vote all participants, and declare that we

• 24 Ace-Federal Reporters, Inc.

25 have marked out that little piece.

COMMISSIONER BRADFORD: Okay.

Okay?

You three have voted

102 mm all participants.

2 CH~IRMAN HENDRIE: Okay.

- 3 4

5 Now question, it seems to me that the provision of transcripts is a pretty straightforward position. It doesn't involve delays.

6 Can we agree iD.,that?

7 COMMISSIONER KENNEDY: Agreed.

8 CHAIRMAN HENDRIE: I'll vote for it.

9 Peter? Just S-3s..

• 10 So ordered.

11 Now, with regard to the reduction'- to 2 from 20 12 copies in the required filings with the Commission.

• 13 14 15 that.

MR. KELLEY: That is not in S-3 . .

CHAIRMAN HENDRIE: That is not in S-3.

Sorry about that.

Okay, strike With regard to the provision of service, we get it, 16 make copies, send it out to everybody. That does involve a 17 delay.

18 It has been judged probably endurable in S-3, 19 although it could run -- it could add substantial number of day, 20 in fact, to the overall proceedings, if as we get down the line 21 there gets to be a lot of filings. I don't know.

22 What is your feeling?

23

• 24 Ace-Federal Reporters, Inc.

25 Let me start at this end this time.

COMMISSIONER BRADFORD: I guess I am not -- I mean

I-----

103 mm I am concerned about the delay . I think the 20 to 2 is a good 2 idea. I'm sor!y we can't do it in this case. It would be a 3 nice half measure.

4 CHAIRMAN HENDRIE: Yes. Could we i~pose the 20, and 5 then immediately remove.

6 (Laughter.)

7 COMMISSIONER BRADFORD: And I guess I take it to 8 be your consensus that it is more trouble than it is worth to 9 try and lay a standard that says we will do it for those 10 filings that don't involve delay and not for those that will.

11 MR.SHAPAR: I see potential for argument, may in 12 turn cause delay.

• 13 14 15 MR. NELSON: Well, you have got a good, firm, aggressive Hearing Board there.

many years.

I've known that chairman for He is not a man who is going to let people roll him over.

16 MR. SHAPAR: But the standard itself may be hard to 17 apply.

18 MR. NELSON: Well, that is their business.

19 MR.SHAPAR: Good theory.

20 (Laughter.)

21 CHAIRMAN HENDRIE: It seems to me I've heard that 22 argument before.

23 Applicable what?

MR.SHAPAR: By,athe way I take it the decisions you

104 mm are making now apply only to the legislative phase .

2 That's a question.

3 COMMISSIONER BRADFORD: I don't think we --

4 CHAIRMAN HENDRIE: Well, we haven't agreed that there 5

is going to be anything more than a legislative phase, and I 6

assume if we decide eventually on that question, we will have 7

to take with it whatever assistance is being provided to this phase.

8 So this is specifically with regard to what is now 9

the S-3. Okay?

10 While Peter is mulling, let me go down and see what 11 you think.

12

• 13 14 15 COMMISSIONER KENNEDY:

CHAIRMAN HENDRIE:

I'm for going ahead.

Ym are for going ahead.

COMMISSIONER GILINSKY: I will follow the General Counsel's recommendation.

16 COMMISSIONER KENNEDY: Which was?

17 MR. NELSON: Which contains a sentence about 18 revocable at the Board's discretion, Commissioner 19 COMMISSIONER KENNEDY: That is one I do not agree 20 with.

21 MR. MALLORY: I think we.do have to decide just 22 what is going to be served and what isn't, if not everything.

23 Or at least we have to --

• 24 Ace-Federal Reporters, Inc. COMMISSIONER KENNEDY: Everything. My vote was 25

1----

105 1-mm was for going ahead with everything.

2 MR. NELSON: In S-3 the proposal was for going with 3 everything.

4 CHAIRMAN HENDRIE: Everything.

5 So you wouldn't use Jerry's sentence then?

6 COMMISSIONER GILINSKY: I guess I was not here for 7 that.

8 COMMISSIONER BRADFORD: That hasn't been discussed 9 yet, that particular sentence.

10 I don't think we know what you have in mind it 11 being revoked for.

12 MR. NELSON: I don't either. It was just a general

• 13 14 15 residual discretion of the Hearing Board to enable them to control this mechanism. It is obviously subject*:to abuse.

There can be delays, there can be *papers filed that .. turn out 16 to be blathering nonsense,and they might want to say, I'm going to stop paying for it.

17 I thought they have control of the hearing, we 18 ought to recognize that general control over this. It has 19 been pointed out that there is a potential for that being 20 counterproductive and so be it.

21 COMMISSIONER KENNEDY: How are they going to do this.

22 CHAIRMAN HENDRIE: The assumption is that the 23

• 24 Ace-Federal Reporters, Inc.

25 assistance in service would be provided, unless the Board took explicit action on the basis that it felt on a particular ~- -

106 mm. COMMISSIONER KENNEDY: As a general proposition 2 all filings wi_ll be served by the Commission unless the 3 Board takes affirmative action to stop one.

4 Is that. the proposition?.

5 MR. NELSON: About what we had. in mind.

6 COMMISSIONER KENNEDY: I'll agree* to that.

7 That's not what you had in mind?

8 MR. NELSON: I was very conservative in this area.

9 I wanted to have somebody policing what was going on.

10 MR. KELLEY: He said about.

11 MR. NELSON: Yes, I wanted to have the power there, 12 somebody somewhere to cut it out if things go astray.

• 13 14 15 CHAIRMAN HENDRIE: With that understanding it is okay with you?

COMMISSIONER KENNEDY: Agreed.

CHAIRMAN HENDRIE: Do I get a nod?

16 COMMISSIONER GILINSKY: (Nodding affirmatively.)

17 COMMISSIONER BRADFORD: (Nodding affirmatively.)

18 CHAIRMAN HENDRIE: Okay. So ordered.

19 I'm only 22 minutes late.

20 Let us move to the next question.

21 I'm sorry, I'll be able to introduce this. I have 22 an appointment on the Hill at 12:30 which I am going to leave 23

• 24 Ace-Federal Reporters, Inc.

25 in three minutes for. So I am going to have_to leave the Commission to deal with it. I think it has to be dealt with

107 mm and has .to be dealt with now .

2 I aJll sorry to say I have to leave you in the lurch 3 on such short notice.

4 It involves a request by the Union of Concerned 5 Scientists that Mr. Pollard be allowed to participate in either 6 the next, or presumably an appropriate meeting of the Commission 7 on the petition by the Union of Concerned Scientists in 8 connection with the tests on electrical connectors and 9 cables and so on.

10 The General Counsel, Mr. Pedersen, will speak to 11 this in a moment.

12

• 13 14 15 16 17 18 19 20 21 22 23 24 Ac rel Reporters, Inc.

25

108

.CHAIRMAN HENDRIE: Okay, have we got the appropriate 2 people on hand with the appropriate papers?

3 Now, I'm going to leave you the gavel, Dick, and 4 my apologies for the circumstances and my best wishes in the 5 effort. And I will leave, as*I go I leave the Commission for 6 whatever use it may be in effect my proxy to vote one vote for.

7 It is my view that on balance this is -- and under 8 the sorts of procedures th~t* the general counsel discussed --

9 COMMISSIONER BRADFORD: Joe, just as a techili<i:ality, 10 let's count that as one vote for. I don't know if proxies are 11 legal or not.

12 CHAIRMAN HENDRIE: I'll tell you, I didn't want to

• 13

.14 15 walk out, you know, and sort of leave the thing blank and then in effect have ducked at least COMMISSIONER KENNEDY:

havin*g- my views known --

Since there will be at some 16 point* in :*.the discussion a proposition which will follow another i7 request that opportunity be provided for others to appear, are 18 you voting on that as well? Are you voting on that question, 19 Mr. Chairman?

---

~-- ------------------------~-

i 20 CHAIRMAN: HENDRIE: I' 11 leave you my opinion on it. It appears:.

21 .'. me that in this* :Particular case, the union and Mr. Pollard have 22 a particularly central role in the matter, that the letter from 23 Troy Conner representing such utilities -- indeed, they repre-24 sent a group of people who indeed have an interest in it; A . a l Reporters, Inc.

25 but who, if they are all to be heard, extend the range of

109 having to listen to people far beyond anything I think reason-2 able.

3 And I would therefore vote yes on UCS and no on --

4 COMMISSIONER KENNEDY: Could I note before you leave 5 that in stating that even though everything you say is true, 6 it would be a very extensive thing, perhaps, but I would doubt 7 that they would all wish to appear individually.

8 But let me just point out that in one case, at least, 9* one of these utilities -- and after all, they do have some int~rest in the proposition; it is their plant we're talking 11 about, not Mr. Pollard'.s -- I would just call attention to 12 their feelings about these things which it seems to me we

• 13 14 15 need to know the facts about~

I quote: "Mr. Pollard relies on factual distortion.'

That's a fairly serious pod..nt being made by one of these 16 parties,, who would presumably like to be h~ard.

i7 Well, I've said it.

18 CHAIRMAN HENDRIE: Well, the Commission may decide 19 that i t ought to hear at least a limited number of other par-20 ties. And I don't think you can regard my views as a vote, 21 Pete, because, you know, presumably, the Commission has to 22 discuss --

23 COMMISSION BR~DFORD: I was just concerned with the 24 technicality over whether a proxy was usable.

A c e . I Reporters, Inc.

25 COMMISSION GILINSKY: No, i t can't be used.

110 COMMISSIONER KENNEDY: Can't.

2 COMMISSIONER BRADFORD: That's what I thought. I 3 only meant i;fi:~Joe intended to vote he should vote now.

4 COMMISSIONER GILINSKY: We have a pecµliar statute 5 that doesn't permit that.

6 (Chairmatl~Hendtie leaves.)

7 COMMISSIONER GILINSKY: Very well, Jerry, are you 8 going to go with this matter?

9 MR. NELSON: Yes, sir. This matter arose, a letter 10 dated November 17, 1977, filed by council for the Union of 11 Concerned Scientists in which she states the following:

12 "In addition, UCS requests that prior to ruling,

• 13 14 15 the Commissioners call Mr. Pollard to appear before you to answer any questions which you may have. If any further,\

Sta.ffibfi~fings are~2 scheduled we request Mr. Pollard be 16 permitted to participate, along with bli.e staf,f along with an i7 equal footing."

18 Leaving the equal footing language to one side for 19 a moment, because I think that raises special questions, there 20 is before the house the question whether Mr. Pollard ought to.

C-21 be allowed to participate in that meeting at all, any way, 22 under any structure.

23 Our recommedation :was that the Commission should 24 exercise its discretions* to:*a.llow1*.him to participate in the A al Reporters, Inc.

25 meeting. And I should talk about law and I should talk about

111 policy to try to not mix the two up.

2 The l~w of this case is that there almost isn't any 3 law. This is an ad hoc proceeding. It is not a proceeding 4 that is an adjudication. It is not the kind of proceeding that 5 our regulations deal with. There aPen't any 6 COMMISSIONER KENNEDY: Could I interrupt there, 7 Counsel. It is a proceeding which is not even before a Com-8* mis~ion. Isn't that correct?

9 There is a petition. The petition is before the 10 staff at the moment, isn't that correct?

11 MR. NELSON: I don't believe that's right, sir.

12 COMMISSIONER KENNEDY: What is the status of this

• 13 14 15 matter?

MR. SHAPAR: I think under the rules it should have been addressed to the staff. Ib*rwould have been, had the rules 16 been followed~ However, the Commission has the matter of i7 discretion which, of course, it can elect to exercise besides 18 this matter itself.

19 So the Commission, in my opinion, does have the 20 matter now.

21 COMMISSIONER KENNEDY: Okay.

22 MR. NELSON: The question, then, is really one of 23 discretion, and tnis is one of the most highly discretionary 24 areas of procedure of all of them, even if this were an ad-Ace.Aia1 Reporters, Inc.

~ 25 judication, and even if we were talking about oral argument.

J.12 The Supreme Court has made clear that no one has the 2 right to that kind of oral argument. That when you make judg-3 men ts ab0.ut oral arguments, you do i t on a case-by-case basis.

4 according to the circumstances.

5 Even if this were oral argument, the rule is this 6

in not a matter under our decisions for broadside generalizatio 7 and indiscriminate application. It is rather one for case-to-8 case determination, through*--which alone account may be taken 9

of differences in the particular interests affected, circum-10 stances involved, and procedures prescribed by Congress for 11 dealing with them.

12 They were there avoiding and reversing a lower

• 13 14 .

15 court which had held that kind of right to have oral argument before an agency.

discretionary.

So a doctrine has grown up that is highly 16 I think I can say with some confidence that if you i7 were to deny the request, and if Mr. Pollardsued*,,,hecw<1:mld*no.t 18 get the case reversed,_.* .,..* the Union of Concerned Scien+

19 tists would not get the case reversed on that ground alone.

20 That would not be reversible error to refuse to have Mr.

21 Pollard participate in the meeting. You may lawfully deny 22 this request.

23 COMMISSIONER BRADFORD: What about one and not the 24 other?

A c e . I Reporters, Inc.

25

,MR. NELSON: One and not the other, we think, is a

113 more difficult problem. But we think at this time, the only 2 issue before the house is whether there is an emergency, and 3 if so, whether the emergency relief is called for.

4 We think that with respect to that question only, 5 the interests of Mr. Conner are not so substantially different 6 from the interests of the staff as to render it that helpful 7 to the Commission to hear from Mr. Conner on that question.

8 COMMISSIONER KENNEDY: When, then, did we get 43 9 is that the correct number -- of responses to request for 10 comment on the petition?

11 MR. NELSON: Well, I cannot speculate about why 12 people file papers. But if we turn to Mr. Conner's paper

• 13 14 15 COMMISSIONER KENNEDY:

direct specific interest.

I have all the othersr*here.

I We all thought they had a just read a sentence from one.

16 MR. NELSON: Of course they do, Commissioner. I'm i7 not suggesting they don't have an interest. They have a very 18 deep, important interest in the economics of the situation and 19 their obligations to serve their areas. Of course they do.

20 COMMISSIONER KENNEDY: Which is different, it seems 21 to:*;'me, in a very significant way,

• than that of the' -staff.

22 MR. NELSON: For long-run purposes, it very well may 23 be. For the question of whether there's an emergency which 24 warrants shutting down reactors, it seems to me they would have Ace I Reporters, Inc.

25 a dif-ferent view if the staff were coming down and saying,

114 "There is an emergency, shut down reactors."

2 Then the Commission ought well to consider including 3 utility participation in iti~ deliberation, if i t includes any-4 body. But the way the case is shaping up, based on pleadings 5 filed yesterday, the staff is saying there is no emergency, 6 don't shut down any reactors.

7 Mr. Conner -- his sole comment, as I understand it, 8 consists of these two pages filed here in November and he says, 9 among other things, "We believe that the staff analysis of and 10 :t:~sponse,-,t.o:. the use of the UCS petition entitled" -- and then 11 he entitles the petition -- lldated November 9, 1977, and 12 transmitted to the Commissioners on that date by Edson G. Case

• 13 14 15 clearly and succinctly demonstrate that the relief sought by UCS is completely unwarranted.

herein.

• we incorporate that evaluation 16 * Actions taken an9- presently underway by the staff, i7 licensees and applicants regarding fire protection criteria for 18 nuclear power plants provide adequate protection for the public 19 health and safety. Moreover, the relief requested because of 20 failures of certain electrical connectors under test provisions 21 is broad and overreaching and should be dealt on >.a plant-by-22 plant basis. There are few facilities having specific con-23 nectars in locations where they would be exposed to post-tOCA 24 conditions.

Ace I Reporters, Inc.

25 "'For the above reasons, the UCS petition should be

115 denied.,:

2 I don't see in that any suggestion that that gentle-3 man has no studies, no developments, anything to bring to bear 4 on the decision that isn't already here in the staff presen-5 tation, nor do I see that suggestion in the letter of yesterday which simply says, -fair-:I.y enough, "If you are going to hear 7 that side, hear us, too."

8 That, I think, is a contention which might have some 9 merit if the Commission were -- heard the staff and heard Mr.

10 Pollard and was about to say, "We don't believe the staff, we 11 do believe Mr. Pollard. There is an emergency."

12 I think at that point the Commission might very l_.;rell

• 13 14 15 wish to invite Mr. Conner and other representatives in on a:,

manageable basis to participate in the discussion.

COMISSIONER GILINSKY: You would then reconsider 16 afte:+/-~.t} hearing the staff --'-

i7 MR. NELSON: I would say, Commissioner, it's not a 18 question that the Commission need resolve now. You need not 19 vote Mr. Conner's request up or down now in order to say we wil 20 allow Mr. Pollard to participate in the discussion of whether 21 there is an emergen¢y.

22 If the Commission then takes that under advisement 23 and it begins to look like the Commission believes that some 24 Ace I Reporters, Inc.

emergency action is warranted, at that point the Commiss,ion 25 would ~ppropriately turn to the question of participation of

I' 1!

116

'I Mr. Conner or others, assuming it were the k~nd of emergency

i 2 that could abide a few days or a week, and t~e circumstances 3 seem to show that this one has.

4 COMMISSIONER BRADFORD: Jerry, if :Mr. Pollard simply

• i I 5 had written theicormhission, and -,T~*wa-:s:.:e the ~nly ones that 6 wanted to hear him, and I sa:i:d -- and if I w~re the only one I

'I 7 that wanted to hear* him, and I said, ,::Come in, what do you have

'.i 8 in mind, would I then -- wouid the same ques~ions in any way 1

9 arise with regard . t o in,' . d i. vi. d ua 1 commissioner

. . :l?, arise in 1

j * *

,1 I

10 regard to Commissioners as a whole*.-should I it.hen have

i I

11 Mr. Conner come *'*

l.Il also to tell me what's on :ljis mind?

I 12 MR. ~ELSON: Well, I think that wo,uld be a question,

• _ 13 14 '

15 really, for your 0wn professional discretion '.iand judgment, Commissioner. I quire you to do : so.

don't think there would a la:w that would re-

1 16 COMMISSIONER BRADFORD: How is an -:individual

'1' I

i7 Commissioner's posture any diffe:r1ent from tha:t of the Com-I J

18 mission as a whqle in this situation? Aren't!I! we talking about I

19 our collective dalendars rather than our per~onal calendars?

20 MR:;.: ~ELSON: I think collectively : or individually.

1

,I 21 _If you start taJ:king to one side -- now, putt;ing aside adjudi-JI 22 cations and ex parte problems that we don't h a:v.e -- if you 1 I

23 *'

start talking t~ one ~+/-de, i.e., Mr. Conner q~ Mr. Pollard,

• I 24 and then end up *voting for that side, and th~i other fellow is II Ace-*( Reporters, Inc. ,,I 25 knocking on the door and you won't let him in', I have some

117

.10 trouble with that, too. That bothers my fundamental sense of 2 fairness. And more importantly than mine, it might bother the 3 United States Court of Appeals' fundamental sense of fairness.

4 But matters, I don't think, are at that pass yet.

5 What the record now shows is that Mr. Pollard says 6 there's an emergency, and action is called for. The staff has 7 filed extensive documents that there isn't one. They explain 8 what they have done, what they have found.

9, We are just not sure that utilities, particularly 10 Mr. Conner's papers, which seem to endorse the staff, would be 11 all that different in terms of content or input, whereas Mr.

12 Pollard would undoubtedly bring to bear a perspective that is

• 13.

14 15 not otherwise at the table.

COMMISSIONER KENNEDY: Would Mr. Pollard's perspec-tive, as brought before the Commission at the table, an oral pre-.

16

\ --sentation them be available to all the parties who have commented i7 on .this matter?

1 18 MR. NELSON: Well, pursuant to the Commission's new 19, procedures, we have unofficial transcripts of open meetings, 20- and I assume there would be a transcript of his remarks which 21 people could read.

22 COMMISSIONER KENNEDY: Wouldn't we be advised to, 23 in that case, to have an official transcript iB order that all

~ 24 parties cou[d? A£.ter all, we have already, on the basis of A ~ a l Reporters, Inc.

25 his written filing, the Union of Concerned Scientists written

118 filing, we have -already asked the vi:ews of ai11 the participants

1 2 We are not admi~ting what, for a ,nonattorneyi~ viewpoint, seems 3 to};,be*/ another filing on the part -- we are t;~lking about

---~-============c---:---------+t: 1_ _ _ _ _ _ _ _ _ _ .r' 4 fsuggesting the submission of 9:nother filing. ; j

i 5 He is presenting to the Cornmissioni -- at least, or

. . I I

would be in the'.circumstances -- additional e:Vidence. But 1:

7 that evidence would not be available to any ci~her parttes unles i

8 all of those patties, all 43 or whoever i t wab  ! , was able to

1 9  !

be present here '..in the room. i

• I 11 10 MR. NELSON.~ Well, without quarre.lling with what the I

,I

,I 11 word evidence means, if we inean that he mighti be actuallyhhav.in

,1 11 12, new stud,ies, information, documents, something of that nature -

13- 1 COMMI,,SSIONER KENNEDY: Well, if -~~ isn't --

1 14 MR. NELSON:  ;,.;:_ why hasn't that be~n filed already?

I He's got that ki_nd of thing. I thought he sitnply wanted to 16

i clarify question~s that might be asked about the record as it i?

• now stands. I didn't understand that he was :~oing to request 18 to introduce new evidence.

19 MR. E'ILPERIN: I think I disagree 1ith the general 20 counsel on this.

21 MR. NELSON: Good.

22. MR. SHAPAR: I do, too. You go first.I 23 MR. EILPERIN: I really thint that --

I 24 COMMISSIONER KENNEDY: There must be some implicatio Ac al Reporters, Inc. I

• I 25 'I that I do as well. I

'I I

119 MR. EILPERIN: I think Mr. Conner has a distinct 2 interest and that if we allow one party to speak 3 COMMISSIONER KENNEDY: Are you speaking 6f:-*just Mr.

4 Conner because he wrote a letter, or are you speaking about the 5 other parties, all of whom have filed statements?

6 MR. EILPERIN: I think there certainly is a distinct 7 interest of the guy whose plants are at risk. I think that one 8 way to handle the problem 9 COMJIUSS I ONER KENNEDY: Who Mr. Conner purports to 10 represent, at least in some part.

11 MR. EILPERIN: I think -- okay, I think one way to 12 handle the problem like this, ':of sort of duplicative responses, 13 is to have the staff go before any private party. And then the 14 Commission can say, "We don't want you to duplicate any infor-15 mation: which the staff has already given us. II 16 And that way you can cut down on what the private i7, parties happen to bring up, and limit the information they 18 bring up so it doesn't duplicate what the staff has given.

19 But I think that the rationale that it looks as if 20, we're leaning towards voting to deny the fact that there's an 21 emergency, so therefore, since we're leaning that way, there's 22 no need to hear from the party who also takes that position, 23 I don't find a very persuasive rationale.

24 MR. NELSON: I'm not suggesting prejudgment, Steve ..

A al Reporters, Inc.

25 I'm suggesting Mr. Conner's position takes on meaning only if

120 the Commission takes action adverse to its clients in the 2 emergency phase of this case. Otherwise it's an academic com-3 plaint.

4 COMMISSIONER GILINSKY: Let's see, do we have to 5 deal with this letter which just came in -- in effect, today, 6 at this meeting? In otheh words, can't we --

7 MR. NELSON: We have to do something about his lette.

8 MR. SNYDER: It came in yesterday.

9 MR. NELSON: It's a fair request, fairly presented.

10, COMMISSIONER GILINSKY: But your earlier suggestion 11 was we really didn!t have to vote i t up or down at this meeting 12 MR. NELSON: We could vote to defer i t pending

• 13 14 15.

determination of the emergency decision, or indeed, pending what you hear at the emergency meeting.

COMMISSIONER KENNEDY: You know, with all due re-16 spect, Counsel, I am not sure that I can accept that legal i7 reasoning. And indeed, we will debate i t at some length as 18 long as the meeting continues, or as long as I am permitted to 19 do so.

20 I think we need to deal with this letter because it 21 is the fundamental question of who should be admitted before 22 the Commission. That's the question.

23 Now, we started out discussing should Mr. Pollard 24 be. We are now having a long debate, not about whether Mr.

Ace- I Reporters, Inc.

25 Pollard should be, but rather should Mr. Conner be.

121 It seems to me the question is first should Mr .

• 14 2 Pollard be admitted. Then if it is decided that Mr. Pollard 3 should be, then the question is on what grounds is he, and shou d 4 not others with an equal interest also be admitted. That, it 5 seems to me, that's the line of reasoning that needs to be 6 followed.

7 COMMISSIONER GILINSKY: All right, let:';s take this 8 a step at a time. Jerry, are you finished with your presen-9 tation?

10 MR. NELSON: I wanted to say if you break it up 11 that way, you may trap us into an unmanageable meeting which 12 you don't really intend to do, I don't think, Commissioner .

• 13 14 15 If you vote yes, let's hear Pollard, ~hdr.then there are 23 other people, we may be in the picture for hours.

MR. EILPERIN: You can force consolidation on 16 utilities, I would thin~.

17 MR. NELSON: Well, you can force consolidation of 18 common interest. And what we think here is that for purposes 19 of whether there's an emergency, that there's a common interes .

20 COMMISSIONER KENNEDY: Well, that's my view.

21 MR. NELSON: Well, let the regulatory staff --

22 COMMISSIONER KENNEDY: A view which I simply do not 23 share. You have not persuaded me yet.

24 COMMISSIONER GILINSKY: Do you want to address this, Ace-*! Reporters, Inc.

25 Jim?

122 MR. PEDERSEN: Yes. _I agree, I guess, with the 2 general sentiment of the Commission. I certainly agree with 3 what Jerry said so far, that Mr. Pollard, I believe, has made 4 a case to participate.

5 I, myself, am a little less certain on Mr. Conner.

6 Let me say a couple of words in that regand.if I may.

7 I think if the Commission is going to begin to go 8 down this path of letting people who file petitions come and 9 speak to it, it has to do so with an understanding that it can 10 somehow manage that process. This is a discretionary choice 11 you have.

12 I think you have to do so with some kind of idea in

• 13 14 15 your mind that you can apply judgments, that there are criteria that you can apply in terms of deciding who you will hear from and who you won't.

16 Jerry has suggested one criterion :which Commissioner i7 Kennedy has rejected, that notion of the extent to which the 18 contribution would give you a different perspective from that 19 in which the majority -- in the case, the unanimous view of the 20 staff -- presents to you.

21 To my own mind, that's a workable distinction. I 22 believe it is the kind of distinction, kind of one of several 23 that you're going to have to start being prepared to draw if 24 you start down this path. And I think you should have no Ace I Reporters, Inc.

25 illusions about this. You will be aalled upon to start making

123

.16 2 distinctions about who you will and won't hear from.

Okay, one more p6int.

3 I think there is a choice here. You have to decide, 4 also, not only if Mr. Pollard should be allowed to participate, 5 but shouldn't he be allowed to participate in tomorrow's meetin, 6 and secondly, if Mr. Conner is to participate, should he also 7 be allowed to participate in tomorrow'*s meeting?

8 It seems to me you could agree to let Mr. Pollard 9 participate tomorrow, because his concern is directly*,, with the 10 emergency situation. And yet, for Mr. Conner, if you choose, 11 the opportunity to also participate and be heard from before 12 you render your final decision in this matter which, I under-

• 13 14 15 stand, is set for another week or so away.

tomorrow.

You need not choose to let both of them participate 16 COMMISSIONER GILINSKY: Can I stop you for a minute?

i7 Jerry, you're suggesting Mr. Pollard's participation 18 tomorrow, aren't you?

19 MR. NELSON: Y:es.

20 COMMISSIONER GILINSKY: Very good.

21 MR. NELSON: With or without Mr. Conner is a second 22 question.

23 MR. PEDERSEN: You were asking whether we had to 24 vote up or down on Conner today. I'm saying you have a choice Ac al Reporters, Inc.

25 of not voting up or down* on his participation tomorrow,

124 necessarily.

2 COMMISSIONER GILINSKY: Peter --

3 COMMISSIONER KENNEDY: Could I ask something about 4 that tomorrow business? It has been the longstanding view of 5 the Commission repeated -- and I must say, unanimously by us 6 and urged* upon us, although urging was not necessary by the 7 eminent counsel -- that the public should be given the fullest 8 opportunity to participate in these matters. And here's a 9* matter where the public -- 43 of them -- have written us.

10 And we are going throughr.the unseemly exercise o'f 11 putting up what will be a unique proposition by the Commission 12 to.:*;.all:ow someone, a petitioner to come before us and make an

• l3, 14 15 oral statement on less that 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> notice.

gentlemen, unseemly/ and will so vote,.

COMMISSIONER GILINSKY:

I consider that, To do it at all, or to do 16 it with --

i7 COMMISSIONER KENNEDY: No, to do it without proper 18 notice.

19 COMMISSIONER GILINSKY: So you're :t.eally against,*.t.he 20 entire proposittonp because there's not 24-hours' notice.

21 COMMISSIONER KENNEDY: I am against having it tomor-22 row. I am against havtng it on one side. If we~re going to 23 have it 24 MR. NELSON: In fairness to Mr. Kennedy's view Ac al Reporters, Inc.

25. COMMISSIONER KENNEDY: It should be done with proper

125 notice and it should be done with proper participation.

2 MR. NELSON: Mr. Conner suggests that problem of 3 notice in his letter. He evidently happened ,*to know about the 4 meeting, because he saw the meeting announcement, and he 5 practices here. It was a short notice announcement. And 6 people who aren't here or don't practice here or don't have 7 those advantages that watch the hearing room like some of the 8 big firms ---:I'm sorry, the public document room -- may not 9 even know the schedules.

10 So that in fairness to that argument, I want to 11 bring that fact before the Commission. And one could also ,-,_.,

12 argue, if you want to hear from Mr. Conner m::: have him partici-

• 13 14 15 pate, why not any number of other parties or interests on that side who don't necessarily know about it.

ment that can be fairly made.

That's a fair argu-All I'm suggesting is you 16, don't necessarily have to cross that bridge.

i7 MR. SHAPAR:

• I want to 18 give you a somewhat different perspective, although I don't l9 disagree with any of the basic conclusions that have been 20 expressed at this table, but I don't think that-t:the proper,,*

21* s~tting has been given for what kind of proceeding this is, 22: or for what the correct criterion~~ to apply.

23 This is supposed to be a 2.206 proceeding, wh~8h 24 means that the letter should have been filed with the staff, Ace al Reporters, Inc.

25 and the staff acted upon it. The Commission recently changed

126 its rules to say that no longer would it entertain any appeals 2

from the staff decision on a 2.206. The Commission, of course, 3

has the discretion to waive its own rules, which it did in this 4

case. I am merely pointing this out by,_' way of background.

5 So as far as the law is concerned, I think it's 6

quite clear the Commission has decided to act initially in lieu 7

of the staff to decide a matter~ But the basic format is still 8

2.2.06, although part of the formality has been waived.

9 2.206 was intended to be, and always was, a very 10 simple way of allowing a member of the public to come in and 11 ask the Commission fo do something, and the Commission would 12 simply give its reas-ons whether the staff acted on it. The

• 13 14 15 Commission acted on it, and that was the end of it.

The only requirement under your rules is that you explain the basis for what you are doing.

16 Now, the idea of having a hearing in the sense that i7 the Commission has gone about doing this, is a fine act of 18 discretion, but it goes beyond any requirement of the regula-19 tions, and beyond any requirement of law whatever.

20 So as far as 21 MR. NELSON: Excuse me.

22 MR. SHAPAR: Excuse me. As far as I'm concerned, 23 as far as exposing Mr. Pollard's request and ~xposing Mr.

. 24 Ace I Reporters, Inc. Conner's request, the criterion is quite simple.

25 If you think it would be helpful to hear from Mr.

127

• 20 Pollard, then you should, by all means hear from Mr. Pollard .

2 If you think it would be helpful to hear from Mr. Conner, then 3 by all means you should hear from Mr. Conner. You don't need 4 any notice, you don't need anything except a------**determination 5 that i t would help you to listen to these two gentlemen, one 6 or the other.

7 Now, at that point, what enters:into it is merely 8 fairness and common sense. If you think you would feel uncom-9 fortable about hearing from Mr. Pollard without hearing from 10, Mr. Conner, then you can schedule 1/2 hour or 15 minutes or 11 1/2 day as you see fit.

12 But the only criterion that I see involved here is

• 13

• 14 15 whether you think any presentation woul.d be helpful to you in deciding the matter, whether it's,: the, emergency matter or th long-term matter. And there are no legal inhibitions here 16 whatever.

i7 COMMISSIONER BRADFORD: Let me just ask you if that 18 is the general view that there is no attorney at the table who 19 feels that hearing from one, would then compel us to hear from 20 the other in terms of any substantive --

21 MR. NELSON: I don't want to go that far. I think 22 it depends upon how the case ends up at the end.

23 Let's take the oppos*ite side of the coin. Suppose

~ 24 you heard from Mr. Conner, and refused Mr. Pollard. And then A ~ a l Reporters, Inc.

25 found that there was no emergency, and everything was fine _

128 based on Mr. Connerc's arguments.

2 It seems to me that the Union then would have a 3 decent argument in the Court of Appeals of a denial of funda-4 mental fairness. I think fundamental fairness is at stake 5 here, but I just don't know that you have to make a judgment 6 that it requires opening the doors to everybody at this stage 7 of the game, at the emergency phase. It may later on.

8 I'm with Howard up to a point.

9 MR. SHAPAR: This is not in the petition. If you've 10 got any case law that mandates on the part of any court any 11 particular procedures for acting on a procedure, I'm unaware of 12 that law, Jerry .

• 13 14 15 MR. NELSON: The administrative due process.

COMMISSIONER KENNEDY: Let me just say that without any intention to suggest that this is a correct statement, let 16 me just read the statement. All I'm saying is that some people i7 believe that what Mr. Pollard is saying is not correct. And 18 they have told us so.

19 MR. NELSON: And the' regulatory staff has said 20 that's so.

21 COMMISSIONER KENNEDY: They have said he relies on 22 factual distortions. No, you know, for us then to listen --

23 and I'm fully prepared to do so, without having heard, having 24 given the others, those who believe, or say they believe that Ac al Reporters, Inc.

25 he is relying on factual distortion:i-- I have* no indication

129 that that is true. All I know is what they say. But for them 2 to have said that and us, in the meantime, listening to Mr.*

3 Pollard without ever having heard the other side of this argu-4 ment, i t seems to me does bear on this question of fundamental 5 fairness.

6' MR. NELSON: If that were the case, I would agree 7 with you, Commissioner. Where we differ is the judgment that 8 we make, or some of us make, that that side of the case has bee 9 presented for purposes of the emergency question by the regu-10 latory staff.

11 MR. SHAPAR: Has the 12 MR. NELSON: The staff has pointed out errors in

• 13 14 15 Mr. Pollard's position.

COMMISSIONER GILINSKY: We have some problems here time problems which I think we're going to have to accommodate.

16 My own inclination is to take these a step at a time to deter-i7 mine whether Mr. Pollard should be heard tomorrow, and to put 18 off to another day the question of whether Mr. Conner should 19 be heard, and any other petitioners.

20 COMMISSIONER KENNEDY: We're raising the question of 21 whether Mr. Pollard should be heard tomorrow. Let's talk arout 22 that, forget Mr. Conner.

23 COMMISSIONER GILINSKY: Right.

24 COMMISSIONER KENNEDY: Let's talk about Mr. Pollard A al Reporters, Inc.

25 tomorrow.

130 R.3 2 COMMISSIONER GILINSKY:

COMMISSIONER KENNEDY:

Yes.

I think it is unseemly on our 3 part to hear Mr. Pollard tomorrow. It's .an open session. We 4 should give the public the fullest opportunity to; be present a d l

--1-*--~---~--~---- - - ---

5 . hear what Mr. Pollard has to say. I am sure that Mr. Pollard would 6

'. wish this and I, certainly do.

7 And I think, by and large, this Commission has con-8 sistently said -- and I fully have supported it, consistently 9 said -- indeed, i t is i t has stopped certain proceedings 10 in order that time could be given to assure appropriate notice.

11 If we are going to have open meetings, if we are 12 going to have full participation, and if we are going to have

• 13 14 15 .

the public listening to what we hear and what we know, then I think we ought to set this off for such a time i t . would give that kind of notice: and let as many people come and hear as 16 we can get in the room. Not rush, with less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> i7 notice, notice that will not even get out, indeed, unless peopl 18 rush to their telephones as, indeed, they usually do.

19 .

COMMISSIONER GILINSKY: Well, but we're dealing with 20 a '..ma.tter which is said by some degree an emergency matter. And 21 so by putting i t off you are in effect disposing of it in a way 22 that you may not want to.

23 COMMISSIONER BRADFORD: And also, in this particular 24 instance, after all, there has been notice out for 2 or 3 days Ace I Reporters, Inc.

25, now that we were today considering whether to allow him or to

131 invite him or whatever the correct verb is, to appear tomo*rrow.

2 COMMISSIONER KENNEDY: Given the basic fundamental 3 doctrine that they would have the assumption that there was a 4 50 percent chanGe. Certainly. A 50 percent chance, the answer 5 would be no.

6. COMMISSIONER BRADFORD: Well, at least they would be 7 on notice.

8 COMMISSIONER KENNEDY: And indeed i t should be re-9 called, as Mr. Conner's letter did, that that didn't even get 10 noticed until yesterday.

11 COMMISSIONER BRADFORD: Yes, but they would at least 12 be on notice that if they cared, it would be worth calling up

• 13 14 15 sometimec this afternoon and find out what the CommissionJs decision is. It isn't as if the first inclination they have ha this might happen would be sqnething published as a result of this meeting.

16 COMMISSIONER KENNEDY: I would be interested in i7 reviewing the transcript on this point the next time the ques-18 tion of notice arises, because I want us all to keep recalling 19 what I believe to be double standards.

20 COMMISSIONER GILINSKY: Well, I will propose that 21 we vote on the question of whether Mr. Pollard should be heard 22 without any prejudice as to whether Mr. Conner ought to be 23 heard at some later pointr take that up at another meeting.

24 COMMISSIONER KENNEDY: I vote no.

A c . I Reporters, Inc.

25 COMMISSIONER GILINSKY: I vote yes.

132

• 25 COMMISSIONER BRADFORD: I would vote yes.

2 COMMISSIONER KENNEDY: It is only on the question 3 that we are taking it in that way. I want Mr. Pollard to be 4 heard. I want the record to be very clear on this. I want 5 Mr. Pollard to be heard, but I want it to be in the full sun-6 shine. I want him to be heard in circumstances in .. which other 7 parties whose basic judgments are challenged by Mr. Pollard 8 are given the opportunity to be present and state their view 9 on the issues heard by Mr. Pollard.

10 Now, I'm only citing what I believe to be a fair 11 proposition of the basic fundamental fairness doctrine I know 12 gove:rms the Commission's actions. That's the reason for my

• 13 14 15 vote.

MR. SNYDER: May I make a suggestion that we make 43 phone calls after this meeting? That's not impossible.

16 COMMISSIONER GILINSKY: I think that would be adeF i7 quate notice.

18 COMMISSIONER KENNEDY: I think that less than that 19 would be doing the Commission a disservice.

20 COMMISSIONER GILINSKY: I think we ought to notify 21 Mr. Conner.

22 MR. NELSON: You may wish to have Mr. Conner avail:-::**

23 able at the meeting in case something is said that leads the 24 Commission to want to question him. There's no rule that would Ace I Reporters, Inc.

25 preclude you doing that tomorrow.

133

.26 2 COMMISSIONER GILINSKY: Jerry, you indicated in your note that i t said that if we do grant this request, Mr. Pollard 3 should be advised of the nature of these meetings and the exten 4 to which -- where you said open meetings are not part of the 5 formal or informal record of decisions or matters discussed 6 therein.

7 MR. NELSON: That's correct.

8 COMMISSIONER GILINSKY: Okay, Mr. Pollard should be 9 so .notified.

10 COMMISSIONER KENNEDY: I will be filing a written 11 opinion on my decis~on, a written statement on my decision.

12 COMMISSIONER GILINSKY: Okay.

• • • 13 14 15 MR. NELSON: Does the Commission wish to rule out Mr. Conner, or to instruct that he may be here in case somebody wants to question him?

16 COMMISSIONER KENNEDY: He has every right to be here i7 This is a public meeting.

18 COMMISSIONER GILINSKY: I don't want to rule him out.

19 COMMISSIONER BRADFORD: By rule out you didn't mean 21 MR. NELSON: There's a difference between someone 22 coming to an open meeting on the Sunshine Act, and someone 23 coming knowing that the Commission may want to propound ques-24 tions to him, sir .. That's the difference I'm trying to suggest.

A al Reporters, Inc.

25 And do we want to convey that suggestion to Mr. Conner?

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COMMISSIONER GILINSKY: For myself, I would not expect to hear from Mr. Conner at tomorrow's meeting.

COMMISSIONER KENNEDY: If you convey that instruc-tion to Mr. Conner, then I would be perfectly prepared to vote 5 yes on the proposition. It is only that that I'm saying, becaus 6 : I will be sure that Mr. Conner is offered a question.

7 (Laughter.)

8 Under the basic fairness doctrine.

9 COMMISSIONER BRADFORD: Well, I suppose that if 10 Commissioner Kennedy wants to question Mr. Conner at tomorrow's 11 meeting, I would certainly vote that he be given that oppor-12 tunity. It doesn't seem to me to be the best of all possible 13 ways to hear from Mr. Conner.

14 COMMISSIONER GILINSKY: Well, I would propose that 15 we go forward on the course that we voted on to hear from Mr.

16 Pollard and to deal with Mr. Conner's appearance at a later i7 point.

18 COMMISSIONER KENNEDY: At what point are we going 19 to have a meeting? May I call for that date?

20 COMMISSIONER GILINSKY: Well, I don't have the 21 schedule in front of me here.

22 COMMISSIONER KENNEDY: Well, we have a secretary 23 here.

24 COMMISSIONER GILINSKY: We can deal with that.

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25 COMMISSIONER KENNEDY: At a subsequent meeting with

135 what was proposed here -- and I think it would be useful, since 2 the subsequent meetings seem to be on very short notice these 3 days -:-.:... which is not consistent with the basic policy of the 4 Commission -- I think it would be useful if we could determine 5 what the date of that meeting is.now, since it will be certainl 6 less tha~ 1 week.

7 MR. PEDERSEN: There is a meeting on the schedule 8 on the Commission for briefing on this subject on December 22nd 9 COMMISSIONER KENNEDY: 22nd of December?

10 MR. PEDERSEN: Is the next scheduled meeting.

11 COMMISSIONER KENNEDY: That doesn't seem, to me, to 12 give Mr. Conner very much of an opportunity .

• 13 14 15 So it seems to me what we're saying is, if we're only going to discuss his appearance at that time, we are suggesting that we will allow the whole matter to be resolved 16 by total default. If Mr. Conner had anything to say, or those i7 he represents had anything to say, it will certainly at that 18 point be too late for them to say it.

19 COMMISSIONER GILINSKY: Well, I don't think it will 20 be, and I think this is something that the Chairman might use-21 .

fully participate in. And so I think that we ought to take 22 it up at a meeting in the near future .

23 (Whereupon, at 12:45 p.m., the hearing was adjourned) 24 Ace* I Reporters, Inc.

25