ML23151A502

PR-MISC(92-2) - 57FR30762 - Two-Year Trial Program for Conducting Open Enforcement Conferences; Policy Statement

ML23151A502
Person / Time
Issue date:	07/10/1992
From:	Chilk S NRC/SECY
To:
References
PR-MISC(92-2), 57FR30762
Download: ML23151A502 (1)

Text

ADAMS Template: SECY-067 DOCUMENT DATE: 07/10/1992 TITLE: PR-MISC (92-2) - 57FR30762 - TWO-YEAR TRIAL PROGRAM FOR CONDUCTING OPEN ENFORCEMENT CONFERENCES; POLICY STATEMENT CASE

REFERENCE:

PR-MISC (92-2) 57FR30762 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAKING PROPOSED RULE: PR-MISC (92-2) OPEN ITEM (Y/N) N RULE NAME: TWO-YEAR TRIAL PROGRAM FOR CONDUCTING OPEN ENFORCEMENT CONFERENCES; POLICY STATEMENT PROPOSED RULE FED REG CITE: 57FR30762 PROPOSED RULE PUBLICATION DATE: 07/10/92 NUMBER OF COMMENTS: 8 ORIGINAL DATE FOR COMMENTS: 07/11/94 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: FINAL RULE PUBLICATION DATE: I I NOTES ON: SUPPLEMENTAL NOTICE CONTINUING TRIAL PROGRAM PUBLISHED IN THE FEDE STATUS  : RAL REGISTER ON 7/19/94 AT 59 FR 36796. FILE LOCATED ON 16-G .

• OF RULE :

HISTORY OF THE RULE PART AFFECTED: PR-MISC (92-2)

RULE TITLE: TWO-YEAR TRIAL PROGRAM FOR CONDUCTING OPEN ENFORCEMENT CONFERENCES; POLICY STATEMENT PROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: 92-194 SRM DATE: I I SIGNED BY SECRETARY: 07/07/92 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: SRM DATE: *; I SIGNED BY SECRETARY: I I

- STAFF CONTACTS ON THE RULE CONTACTl: LINH TRAN MAIL STOP: 2-H-5 PHONE: 504-5553 CONTACT2: MAIL STOP: PHONE:

DOCKET NO. PR-MISC (92-2)

(57FR30762)

In the Matter of TWO-YEAR TRIAL PROGRAM FOR CONDUCTING OPEN ENFORCEMENT CONFERENCES; POLICY STATEMENT DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

- 07/07/92 07/07/92 FEDERAL REGISTER NOTICE - PROPOSED RULE 09/08/92 09/02/92 TWO-YEAR TRIAL PROGRAM FOR CONDUCTING OPEN ENFORCEAMENT CONFERENCES; AVAILABILITY OF TOLL-FREE PHONE NUMBER (PUB 9/9/92 AT 57FR41154) 09/09/92 09/02/92 COMMENT OF WASHINGTON STATE DEPT. OF HEALTH (TERRY C. FRAZEE, SUPERVISOR) ( 1) 09/14/92 09/11/92 COMMENT OF ENTERGY OP, INC. NORTHEAST UTILITIES (NICHOLAS S. REYNOLDS, ET AL) ( 2) 04/21/94 04/14/94 COMMENT OF ILLINOIS DEPT. OF NUCLEAR SAFETY (THOMAS W. ORTCIGER, DIRECTOR) ( 3) 07/05/94 06/29/94 COMMENT OF TENNESSEE VALLEY AUTHORITY (ROGER W. HUSTON) ( 4)

- 07 /11/94 07 /11/94 COMMENT OF NUCLEAR ENERGY INSTITUTE (ROBERT W. BISHOP, VICE PRESIDENT) ( 5) 07/13/94 07/11/94 COMMENT OF SEVEN POWER REACTOR LICENSEES (DAVID A. REPKA) ( 6) 07/18/94 07/11/94 COMMENT OF FLORIDA POWER &LIGHT COMPANY (W. H. BOHLKE, VICE PRESIDENT) ( 7) 07/19/94 07/13/94 NOTICE OF SUPPLEMENT TO POLICY STATEMENT:

CONTINUATION OF TRIAL PROGRAM, PUBLISHED IN THE FEDERAL REGISTER ON 7/19/94 AT 59 FR 36796 08/03/94 11/29/93 COMMENT OF PENN. DEPT. OF ENVIRONMENTAL RESOURCES (ROBERT J. BARKANIC) ( 8)

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PENNSYLVANIA DEw DEPARTMENT OF ENVIRONMENTAL RESOURCES Bureau of Radiation Pr84e <IU;!fio,j P2 :4 8 Post Office Box 8469

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BRAHCH Mr. James Lieberman DOCKET NUMBER PR .

Director, Office of Enforcement U.S. Nuclear Regulatory Commission PROPOSED RULE M,se, Washington, DC 20555 (5"1 FR 30161)

Dear Mr. Lieberman,

Thank you for the opportunity to comment on the Commission's trial program to allow public observation of the USNRC's enforcement conferences. I was fortunate enough to attend the November 19, 1993 conference held in the Region 1, King of Prussia, PA, office. The conference was with the Duquesne Light Company concerning the apparent violation of Beaver Valley Power Station Unit 2 Technical Specifications.

I am a nuclear engineer with the Commonwealth of Pennsylvania's, Department of Environmental Resources, Bureau of Radiation Protection. The Bureau of Radiation Protection assigns a nuclear engineer to each of the five nuclear power plant sites in the Commonwealth. I have been assigned the Beaver Valley Power Station.

My primary responsibilities involve overall plant safety and emergency preparedness. As such, it is imperative that I remain current with the issues that the USNRC deems important. Attending open enforcement conferences allows the opportunity to hear first hand the background, dialogue behind, root causes and corrective actions, for important issues. It allows me to understand both the utilities and the NRC's position and to ask questions where appropriate. I for one, believe that the program is a good one, and anything that you can do to reinforce it would be appreciated.

Thank you again.

Sincerely,

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Nuclear Engineer II RJB/rjb cc: R.R. Janati, Acting Section Chief, Nuclear Safety Section

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[7590-0I J RC NUCLEAR REGULATORY COMMISSION *94 JUL l 9 A9 :4 3 Two-Year Trial Program for Conducting Open Enforcement OFF ICE Or SiCR~T iRY Conferences; Continuation of Trial Program OOCKETatG & ,.~ERV 11..,f BRAHCH AGENCY: Nuclear Regulatory Commission.

ACTION: Supplement to Policy Statement; Continuation of Trial Program.

SUMMARY

The Nuclear Regulatory Conwnission (NRC) is issuing a supplement to its two-year trial program for conducting open enforcement conferences. The purpose of this supplement is to inform the public of the NRC's continuation of the trial program until the Conwnission acts upon the NRC staff's recommendations regarding open enforcement conferences.

FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Conwnission, Washington, DC 20555 (301-504-2741) *.

SUPPLEMENTARY INFORMATION:

The Commission published a policy statement on the implementation of a two-year trial program to allow selected enforcement conferences to be open to public observation on July 10, 1992 (57 FR 30762). The purpose of the trial program was to determine whether to maintain the current policy stated in Section V of the *General Statement of Policy and Procedure for Enforcement Actions,* (Enforcement Policy) 10 CFR Part 2, Appendix C that, *enforcement

2 conferences will not normally be open to the public," or to adopt a new policy that would allow most enforcement conferences to be open to attendance by all members of the public. Comments were requested to be provided to the Commission on or before the completion date of the trial program. A correction to the original notice was issued on July 17, 1992 (57 FR 31754) to correctly identify the scheduled completion of the trial program as July 11, 1994.

On May 13, 1994, the Executive Director for Operations directed a reexamination of the NRC enforcement program by a Review Team of senior NRC staff. As part of this comprehensive review of the Enforcement Policy, the NRC intends to consider the issue of whether the Conmission should establish open enforcement conferences as the normal practice. In the interim, the NRC is continuing the open enforcement conference trial program pending the outcome of the Enforcement Policy Review. The Review Team intends to complete its review of the Enforcement Policy in early 1995.

As part of its review of the Enforcement Policy, the NRC intends to issue a Federal Register notice soliciting public comments to assist the Review Team.

This notice will include soliciting conments on the issue of open enforcement conferences.

Dated at Rockville, MD, this I_Q_

- ijay of July 1994.

. 1. ~/..._,

For the Nuclear Regulatory Commission.

ames Lieberman, Director ffice of Enforcement

Florida Power & Light Company, P.O. Box 14000, Juno Beach, FL 33408-0420

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• 94 JUL 18 P5 :41 JU L 1 1 1994 L-94-175 OFFI CE OF ::El'R[TAq y OOCKEf I G & SERViCf:

BRANCH Mr. Samuel J. Chilk DOCKET NUMBER PR -

Secretary of the Commission PROPOSED RULE M 15e, U.S. Nuclear Regulatory Commission Washington, DC 20555 (S7 FP- Jt> 762]

ATTENTION: Docketing and Services Branch

SUBJECT:

Two-Year Trial Program for Conducting Open Enforcement Conferences; Policy 57 Fed. Reg. 30762 - July 10, 1992 Request for Comments On July 10, 1992, (57 FR 30762), the Nuclear Regulatory Commission (NRC) published for public comment a policy statement titled "Two-Year Trial Program for Conducting Open Enforcement Conferences; Policy." Florida Power and Light Company (FPL), as the licensed operator of two nuclear power plant units in Dade County, Florida and two nuclear power plant units in St. Lucie County, Florida, submits the following comments.

The Nuclear Energy Institute (NEI) is offering comments on the policy statement. FPL endorses the NEI comments and recommendations. In addition, FPL would like to emphasize that open enforcement conferences can generate an inappropriate public perception of the Industry and NRC activities due to the complex and technical issues of plant operations that are discussed. NEI cites examples of this type of occurrence in their letter. FPL agrees with NEI that the public's best interest is maintained through the normal NRC communication channels.

FPL appreciates the opportunity to comment on this policy statement.

Very truly yours, w~

Vice President Nuclear Engineer i ng and Licensing WHB/spt an FPL Group company SEP 2 8 19~

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FR EDERICK H. WINSTON (1853-1886) 1400 L STREET, N.W. CHICAGO OFFICE SILAS H. STRAWN (1891 -1946)

WASHINGTO N, D.C. 20005-35~ JUL 13 A11 :25 35 WEST WACKE R DRIVE CHICAGO, ILLINOIS 60601 (3 12) 558-5600 (202) 371 -5700 NEW YORK OFFICE 175 WATER STREET NEW YORK , NY 10038-4981 (212) 269-2500 July 11, 1994 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN: Docketing and Service Branch Re: Comments on Two-Year Trial Program for Conducting Open Enforcement Conferences (57 Fed. Reg. 30762)

Dear Mr. Chilk:

On July 10, 1992, the Nuclear Regulatory Commission

( "NRC" or "Commission") published in the Federal Register, and immediately implemented, a Policy Statement that on a trial basis allowed members of the public to observe every fourth eligible enforcement conference. The trial policy has been in effect for two years and the NRC has solicited comments on the experience. On behalf of several power reactor licensees,Y we respectfully submit the following comments.

1. Introduction According to the Policy Statement, the Commission implemented the trial program to determine whether the long-standing policy of not allowing public attendance at enforcement conferences should be continued, or whether the NRC should adopt on a permanent basis a new policy that would open most enforcement conferences to attendance by all members of the public.Y As is discussed further below, the experience with the trial program does Y These comments are submitted on behalf of the following power reactor licensees: Commonwealth Edison Company; Duke Power Company; Florida Power Corporation; Niagara Mohawk Power Corporation; Northeast Utilities; Rochester Gas and Electric Corporation; and Washington Public Power Supply System.

Y 57 Fed. Reg. 30762.

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WINSTON & STRAWN Mr. Samuel J. Chilk July 11, 1994 Page 2 not justify an extension of the trial policy. Neither the commission's enforcement process nor the public's understanding of it have been improved by opening enforcement conferences to public observation. On the other hand, detrimental impacts have been observed in a few cases and will very likely recur in future cases.

We believe that enforcement conferences should generally be closed as they had been before this experiment was initiated.

We previously submitted comments to the Commission on the open enforcement conference trial program, by letter dated September 11, 1992. Those comments, made prior to significant experience with open conferences, were addressed generally to the potential negative impacts of opening conferences to the public and media. Most significantly, we stressed the potential for unnecessary or premature adverse publicity for licensees that could stem from the media interest in some open conferences. We suggested that the NRC's explanation of the preliminary nature of the enforcement conference be amplified. The need for such action has been substantiated by experience. We know of at least two cases involving open enforcement conferences during the trial period where unfortunate statements by NRC officials led to unwarranted press characterizations of the events under discussion.

We believe that the experience to date validates our earlier comments. Moreover, it is essential that judicious restraint be exercised by NRC officials in the conduct of these conferences.

2. Discussion: Real costs Versus Intangible Benefits But more to the immediate point is the question of whether the open conference policy should be extended at all. It is no secret that open enforcement conferences during the trial period have been very sparsely attended by the public (and media).

The temptation will be to use this fact as support for continuing the policy. However, this is no justification at all. And, even faced with relatively little public interest in these conferences, the potential pitfalls remain. Public conferences are not in the least conducive to frank expressions of views by either party, and certainly are not conducive to critical self-assessments by licensees. In the few high profile cases in which there has been public or media interest (and there have been a few and will be others), an open conference significantly inhibits the regulatory process. - The fact is, an open conference -- whether attended by the public, or merely transcribed, recorded, or videotaped for the Public Document Room -- will, in many cases, not be a full exchange of views.

The original justification for open enforcement conferences is that by increasing the openness of the NRC' s

WINSTON & STRAWN Mr. Samuel J. Chilk July 11, 1994 Page 3 regulatory process, the NRC's credibility is somehow enhanced.

While this may be an admirable goal, experience with the trial program shows that the strategy does not work, or at least does not work well. For the most part, no members of the public have attended open conferences. And in the few cases in which the public has attended, the majority of non-NRC/licensee attendees are associated with the print or television media. With this minimal level of public participation, it seems impossible to conclude that NRC's credibility has been somehow enhanced. Moreover, we see no evidence that open conferences have resulted in greater follow-on interest in, or understanding of, the nuclear regulatory process.

Thus, it is hard to see that openness has resulted in any greater public involvement in or understanding of the enforcement process than could be obtained through the standard NRC practice of distributing press releases.

The costs of the policy, some real and some still potential, remain: a reduction in openness between the licensee and the regulator, unwarranted costs to the reputation of licensees and particular employees, further economic burden on licensees as they increase the resources devoted to enforcement conference preparation, and diminution of the benefits that licensees have derived from communication with the NRC in the focused forum of an enforcement conference.

The open enforcement conference setting -- particularLy if attended by the media, transcribed, or taped -- creates an incentive for licensees to limit discussions to essential facts.

Whether a conference is open or closed, licensees must of course provide complete and accurate information. The impact of openness is on the extent to which licensees go beyond the regulatory minimum to freely and frankly explore the possible, but not definitive, reasons for deficient performance. By cutting off the opportunity for give and take with regional NRC management, and for critical self-assessment, the open conference becomes a formal exercise and loses its value as another communication channel between the agency and the licensee. This is a factor which NRC needs to weigh in determining if the benefits of openness outweigh the costs of this loss.

Of course, negative impacts do not and will not apply to every open conference. But they will apply to some. The reason for the reticence of licensees will not be a desire to conceal information from the public. It will be a concern that, for example, candid self-assessments will be taken out of context and misused against the licensee in various forums. Similarly, there will be a concern that individuals unfamiliar with the terms, analyses, and thresholds used in the nuclear industry may be unnecessarily alarmed. Discussions of issues such as dose

WINSTON & STRAWN Mr. Samuel J. Chilk July 11, 1994 Page 4 consequences from postulated events, safety system operation status, or plant maintenance issues have often been the source of confusion, misinformation, and mischaracterization. Resolving a misunderstanding created or compounded by press coverage can be more difficult (and time consuming) than resolving the actual issue that led to the conference.

A derivative impact of the heightened sensitivity to an open enforcement conference -- that applies regardless of whether the public actually shows up -- is the effect in some cases on a licensee's allocation of resources. Additional management review and "word-smithing" of an enforcement conference presentation, merely because it is open to the public, would not be unusual. We believe that the time spent on additional management review of the enforcement presentation is an expenditure of licensee resources with no corresponding benefit to safety or the public.

3.

Conclusion:

No Basis to Extend Policy The public interest in enforcement conferences has not been great -- largely limited to a few high visibility cases. The benefits of the policy accordingly have been very small. On the other hand, the real and potential negative impacts remain. We conclude that there is no justification for extending the trial program and certainly no justification for devoting increased NRC efforts to stimulate public interest in these conferences.

We are aware that occasionally, members of the public have complained that by holding an open enforcement conference in the Regional office, the local public has been de facto excluded from attendance due to the time and money it costs to travel to the NRC location. We see no basis for the NRC to address this matter.

Indeed, experience with open conferences for plants which are within an easy drive of Regional offices has not shown any greater attendance than for open conferences for plants far from Regional offices. We recommend that the NRC maintain its practice of holding enforcement conferences in the formalized setting of the Regional offices. The minimal interest evidenced by the general public in the trial program does not justify the substantial additional costs to the NRC of conducting enforcement conferences in the local plant area. We believe this would be a poor use of license fee dollars.

Finally, if the NRC would like to maintain some openness in the process, it should at most return to the policy of opening

WINSTON & STRAWN Mr. Samuel J. Chilk July 11, 1994 Page 5 only a small fraction of the conferences.¥ Moreover, prudence dictates that the NRC maintain its criteria for always closing certain enforcement conferences (which might otherwise be open based on a lottery system). Exemption from the open enforcement process for certain subject-matter categories remains appropriate and reasonable.~

We appreciate the opportunity to provide input on the NRC's enforcement process. We reiterate that the nuclear industry involves a complex technology not easily understood, and in fact, often misunderstood by the public. As such, the goal of conducting as much regulatory activity as possible under the public spotlight, while important, can reach a point of diminishing return. We urge the Commission to continue to carefully balance the political and public relations benefits of opening enforcement conferences against other adverse impacts.

Sincerely,

~~p~~

Sheldon L. Trubatch Winston & Strawn In determining which conferences to open, the Commission should consider the potential for public confusion or premature conclusions. The Commission's goal of enhancing confidence in the process by providing a window into its workings is achieved independent of the subject matter of the conference. Therefore, we recommend that only routine enforcement matters be considered as appropriate subjects for open conferences.

~ Enforcement conferences involving (a) potential individual wrongdoing, (b) significant personnel failures, (c) Office of Investigations reports, (d) safeguards information, or (e) special circumstances as determined by the Executive Director for Operation) were closed to the public during the trial period.

I DOCKETED u~.mc NUCLEAR ENERGY INSTITUTE

• 94 JUL 11 P 6 :11 DOCKET NUMBER I - *... Robert Willi s Bishop PPOPOSED RULE~

{£7 FR 30161J Mr. Samuel J. Chill<

Secretary U. S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 ATTENTION: Docketing and Service Branch

SUBJECT:

Two-Year Trial Program for Conducting Open Enforcement Conferences; Policy Statement 57 Fed. Reg. 30762 (July 10, 1992)

Dear Mr. Chilk:

On behalf of the nuclear industry, the Nuclear Energy Institute (NEI)1 submits the following comments on Open Enforcement Conferences.

On July 10, 1992, the NRC published in the Federal Register (57 Fed. Reg. 30762) a notice that it was issuing a policy statement on the implementation of a two-year trial program to allow members of the public to observe certain enforcement conferences. Pursuant to this policy statement, for a two-year period the NRC would hold open to the public approximately one of every four enforcement conferences. The purpose of the trial program was to provide the NRC with an opportunity to evaluate whether holding open enforcement conferences produces a significant benefit to the public and, overall, has any effect on public health and safety. To facilitate its assessment, the NRC has set out four criteria upon which the trial program and its results will be judged.

1 NEI is responsible for coordinating the efforts of all utilities licensed by the NRC to construct or operate nuclear power plants in all matters involving generic regulatory policy issues and the regulatory aspects of generic operational and technical issues affecting the nuclear energy industry. NEI's members include every utility licensed to operate a commercial nuclear power plant in the United States, the major nuclear steam supply system vendors, major architect/engineering firms, fuel fabrication facilities, materials licensees and other holders of NRC licenses, and other individuals and organizations involved in the nuclear energy industry. NEI is the successor organization to the Nuclear Management and Resources and Resources Council (NUMARC).

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Mr. Sam.uelJ. Chilk July 11, 1994 Page2 In order to meaningfully assess the trial program at the end of the two year period, NEI obtained information about each open enforcement conference from each of the reactor licensee participants. Based upon this information, we are providing the following responses to the criteria set out by the NRC in the Federal Register notice announcing the trial program.

1. Whether the fact that the conference was open impacted the NRC's ability to conduct a meaningful conference and/or implement the NRC's enforcement program.

Although the NRC is in the best position to address whether NRC staff's actions were affected by the attendance of members of the public and media, at a minimum, it appears that, in recognition of the presence of additional observers, the NRC took certain actions which were not ordinarily taken when enforcement conferences were not open. For example, senior-level NRC staff participated in (at least the initial) open enforcement conferences, regardless of the severity-level of the alleged violation at issue. Without establishing a protocol related to the priority of the potential violation, this is not an efficient or effective use ofNRC resources. Further, some licensees believe that increased Office of Enforcement (OE) management participation at these conferences may have had a direct impact on the discussion. In some cases OE's active participation simply affected the tenor of the discussion, but in other cases OE relatively aggressively questioned the licensee about issues that did not appear, at least to the licensee, to be an issue of high priority to Region Staff.

Further; to discern whether the NRC meaningfully was able to conduct an enforcement conference with members of the public present, it is important to bear in mind the general purposes ofNRC enforcement conferences. 10 CFR Part 2, Appendix C, clearly specifies that the purposes of an enforcement conference are to (1) discuss the violations or nonconformances, their significance, the reason foe their occurrence, including the apparent root causes, and the licensee's or vendor's corrective actions; (2) determine whether there were any aggravating or mitigating circumstances; and.(3) obtain other information that will help the NRC determine the appropriate enforcement action.

As noted, a very important purpose of the enforcement conference is to

• discuss the pr~posed violation and examine its significance, root cause, and any corrective actions. With the public in attendance, licensees are concerned that even if the NRC determined that the overall significance of the alleged violation is low, the NRC may have been reluctant to state that view in an open enforcement

Mr. SamuelJ. Chilk July 11, 1994 Page 3 conference setting. Tiris concern is heightened because it seems likely that one of the NRC's objectives in opening these conferences is to demonstrate to the public that the NRC properly is canying out its mandate. But to appease some members of the public, there may be a predisposition for the NRC to demonstrate that it is a

tough regulator" rather than judging the matter on its merits.

The NRC has been endowed with the authority to exercise discretion in the context of enforcement actions. In fact, a key purpose of an enforcement conference is to allow the licensee to explain the context and circumstances attendant to the alleged violation. For this effort to be meaningful, the NRC must also be willing to probe such circumstances to determine how much weight should be given to them in determining whether a violation took place and, if so, its severity. Again, in order to avoid the oft-heard accusation that the NRC is "soft

on the licensee, the NRC may have felt compelled to ignore or dismiss such explanatory information because of the presence of the public and media at an open conference.

Finally, the NRC clearly stated in the open conferences that any comment, or the lack of a comment, on a particular issue was not to be interpreted as an NRC position. While the purpose of an enforcement conference is to provide a forum to exchange information and probe that information provided, licensees may be disadvantaged by any unwillingness on the part of staff to be forthcoming or direct in its views because of the presence of observers. The NRC simply is better served by engaging in a meaningful discussion with licensees to obtain in these sessions as muc);t information as possible so that the agency may make its decisions on a truly informed basis.

2. Whether the open conference impacted the licensee's participation in the conference.

I The presence of the public and media affected in varying degrees the amount and type of preparation licensees felt were necessary for the open conferences. Some licensees spent significantly more time preparing for open enforcement conferences and involved senior management to a greater extent In each case, this was done regardless of the severity of the potential violation.

The indusuy strongly believes that it has successfully maintained an excellent safety record because utility management has focused appropriately on potential safety issues. Unfortunately, the specter of an open enforcement conference may force licensee senior management to focus its attention on

Mr. Samuel J. Chilk July 11, 1994 Page4 enforcement conferences which would otherwise be capably left to other employees. The effect of this diversion of senior management's attention results in a decrease in the amount of management's time which is available to be devoted to its primary responsibility - management of the licensee's employees and the plant. This is another example of an NRC policy which results in the NRC's de facto management of licensee resources.

Licensees also report that they have expended far more time and effort on the "presentation" of the information at open conferences. It is largely the presence of the media, and the concomitant concern (based upon previous experience) that the media will not accurately report that which is stated by either the NRC or the licensee, that motivated these additional licensee actions. As may be easily understood, when a presenter is aware that his or her words are being transcribed or recorded, the dynamics of the discussion often are dramatically different - more formal, perhaps even blander - than they would be if that were not the case. In fact, there have been several instances where even a careful presentation by the licensee and measured responses to further NRC inquiry have resulted in an inaccurate account of what was said, or an article or broadcast that did not present a balanced view of the statements made. We cite a two examples to demonstrate the point Example 1: During an open enforcement conference utility management accepted blame for not paying sufficient attention to plant deficiencies. In contrast, press reports left the impression that management blamed the company's e-':llployees.

Example 2: A member of the NRC staff commented on the potential severity of the incident that was the subject of the enforcement conference.

The commenter stated that the accident would have been very severe if simultaneous failures had occurred' Th.is comment was picked up by wire services and published in the major local newspapers without the proper qualifications that the utility operator's action would have prevented a severe accident even if other equipment failures had also occurred. A subsequent retraction was issued by the wire service but was only printed in one local paper.

Overall, lice1:}Sees believe that the information that they have conveyed in open enforcement conferences has been of the same quality and quantity as if the conferences were closed. But, the significantly greater expenditure of licensee time and effort, and particularly that spent on the "presentation" at these

Mr. SamuelJ. Chilk July 11, 1994 Page5 conferences, consumes resources that simply are better applied to potential safety or other issues. Moreover, inaccurate or unbalanced reporting on open enforcement conferences may have exactly the opposite result from that which the Commission may have had in mind when it initiated the trial program of open conferences - it undermines the credibility of the NRC and the licensee rather than demonstrating the competence of both.

3. Whether the NRC expended a significant amount of resources in making the conference public.

The industry is not aware of whether, in fact, the NRC expended greater resources on the open enforcement hearings. Several licensees have observed, however, that the NRC seems to have spent additional time preparing for these conferences for what appear to be the same reasons that licensees spent additional time preparing as discussed above. Also, in some instances, licensees reported that more NRC personnel attended than had been the case for closed conferences.

While the additional NRC personnel may have been present to escort the attendees, one must question whether, given the overall lack of public interest in these conferences (see below), this is a productive use ofNRC resources.

4. The extent of public interest in opening the enforcement conference.

Public attendance at the open enforcement conferences generally has been negligible. According to our information from all of the reactor licensees who have participated in these conferences, only approximarely 52 persons, other than utility participants and NRC smfl: attended the 34 open conferences for reactor licensees. Note, however, that that figure includes one conference which 16 persons attended, most of whom represented the media Of the 52 persons attending, it should also be noted that 15 persons represented other licensees or state agencies. Thus, removing from the calcu1ation the one conference mentioned above and the attendees who were employed by other licensees or state agencies, an average of less than one member of the public attended each open conference.

Perhaps most telling is that for 12 of the open conferences (i.e., more than one-third), no one other than NRC or utility personnel attended.

The pattern of low or no attendance by members of the public or the media has been consistent since the beginnine of the trial program. This lack of public interest is also evident from open enforcement conferences for other types of licensees. We understand that members of the public attended only one of the open enforcement conferences held with a non-utility member ofNEI.

Mr. Samuel J. Chilk July 11, 1994 Page6 Moreover, open enforcement conferences do not serve a need to provide the public with an opportunity to become aware of and to comment on potential enforcement issues. Both already exist There are at least four instances by which the public is (albeit not in a formal context) informed of and has the ability to comment on an event that becomes the subject of an enforcement conference even without such enforcement conferences being made open. The first is the identification of the incident through media accounts and often through an NRC press release. The second is the issuance of a proposed Notice of Violation, which is publicly available through the NRC's Public Document Room system. Third, a utility normally must respond to the Notice of Violation with the following information: (1) the reasons for the violation or, if contested, the basis for disputing the violation; (2) corrective steps that have been taken and the results achieved; (3) corrective steps that will be taken to prevent recurrence; and (4) the date when full compliance will be achieved. Finally, a final Notice of Violation is issued, which also is made public by the NRC.

Thus, the public is provided with ample opportunity to know of and comment on NRC's enforcement actions. A case cannot be made that, but for open enforcement conferences, the public is prevented from understanding the process to address and the substance of the issues that are the subject of enforcement action. Even if the NRC were to discontinue holding open enforcement conferences, the current process still has addressed amply the public's interest in monitoring and commenting on these issues.

Nuclear power plant licensees are not afraid of open enforcement /

conferences. But in many circumstances the cost the public must ultimately bear through the consumption of resources diverted from other activities is not justified by the results of the trial program. If open enforcement conferences truly served a pressing need, the attendance would have been more than one member of the public per conference.

In sum, the results of the trial program do not justify even the incremental expense and consumption of NRC and licensee resources associated with open enforcement conferences. The meager interest shown by the public in attending these conferences reinforces the conclusion that the public interest is adequately

Mr. Sam.uelJ. Chilk July 11, 1994 Page7 served by communicating the underlying basis for and determinations about enforcement actions through NRC channels currently in place. Therefore, for all of the reasons stated herein, the industry recommends that the NRC discontinue holding open enforcement conferences as a matter of course.

If you have questions, please do not hesitate to contact me at 202/739-8139.

Sincerely, ECG/ec

DOCKET NUMBER R .A

• PROPOSED RULE p r Lt 1 e, DOCKETED (57 FR 3 011,1.)

[Ill Tennessee Valley Authority, 1101 Market Street, Chattanooga, Tennessee 37402-2801 USNRC

• 94 JUL -5 A10 :46 OFFIC E OF SECR ETARY DOCKETWG & ~ER'J;c~

BRA~IC;-l June 29, 1994 Mr. Samuel J. Chilk Secretary of the Commission ATTN: Docketing and Service Branch U.S. Nuclear Regulatory Commission Washington, DC 20555

Dear Mr. Chilk:

NUCLEAR REGULATORY COMMISSION (NRC) - REQUEST FOR COMMENT ON TWO-YEAR TRIAL PROGRAM FOR CONDUCTING OPEN ENFORCEMENT CONFERENCES The Tennessee Valley Authority (TVA) is pleased to respond to the notice and opportunity to comment on the subject policy, originally published in the July 10, 1992, Federal Register (57FR 30762).

This trial program allowed each fourth enforcement conference, with recognized exceptions, to be open to the public. As a Federal agency, TVA recognizes the importance of maintaining an open exchange of communication with the public. To be sure, many forums and topics lend themselves to open communication and public access. However, we do not believe there is sufficient public benefit to outweigh the negatives associated with open enforcement conferences.

Although TVA has not participated in an open enforcement conference during the trial period, we agree with the Nuclear Energy lnstitute's position that such a practice inhibits the free and full technical discussion of the issues involved , thereby substantially reducing enforcement conference effectiveness . It has been TVA's experience that enforcement conferences provide both parties with SEP 2 8 1994

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__ Paga. 2 June 29, 1994 the opportunity to address concerns in a frank manner in an atmosphere conducive to critical self-assessment. Public access, or predominantly media access insofar as actual experience is concerned, makes communication in the enforcement setting more formal than it need be and less useful than it can be. We therefore recommend that NRC return to its previous enforcement conference policy.

TVA appreciates the opportunity to comment on the trial open conference enforcement policy. If you have any questions, please telephone Ed Vigluicci at (615) 632-7317.

Sincerely, 0

anager Nuclear Licensing and Regulatory Affairs cc: U.S. Nuclear Regulatory Commission Region II 101 Marietta Street, NW, Suite 2900 Atlanta, Georgia 30323 Mr. James Lieberman Director, Office of Enforcement U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Ron Simard Nuclear Energy Institute 1776 Eye Street, NW Suite 300 Washington, DC 20006-3706

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Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Branch The Illinois Department of Nuclear Safety (IONS) appreciates the opportunity to comment on the trial policy of the NRC of opening licensee enforcement conferences for observation by the public. IONS is in favor of a regulatory process that is as open as possible and believes the NRC generally pursues an open regulatory process.

IONS monitored the policy during the trial period, and Department representatives attended two open enforcement conferences in NRC Region III involving Illinois power plant licensees. No members of the public or press were present at either; in fact, a lack of interest by the public at large seemed evident. The fact that the conferences were open to the public didn't appear to hamper free dialogue between the NRC and the licensees.

IONS encourages the NRC to continue to open as many enforcement conferences to the public as possible, and believes that the criteria for closing enforcem~nt conferences outlined in the trial policy is reasonable.

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• 92 SEP 14 P4 :Q2 CHICAGO, ILLINOIS 60601 (312) 558-5600 (202) 371-5700 NEW YORK OFFICE FACSIMILE (202) 371-5950 ,_*c ';: *:- **,*. 175 WATER STREET

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.. N EW YORK, NY 10038-4981 (212) 269-2500 September 11, 1992 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN: Docketing and Service Branch RE: Preimplementation Comments on the Two-Year Trial Program for Conducting Open Enforcement Conferences (57 Fed. Reg. 30,762 (July 10, 1992))

Dear Mr. Chilk:

On July 10, 1992, the Nuclear Regulatory Commission ("NRC" or "Commission") published in the Federal Register, and made immediately effective, a policy statement implementing a two-year trial program for conducting open enforcement conferences. See 57 Fed. Reg. 30,762. Although the trial program is currently in effect, the Commission invited public comments. On behalf of several power reactor licensees,!' we respectfully submit the following comments.

- In general, we favor a continuation of the NRC policy, in effect since at least March 1984 (see 49 Fed. Reg. 8583, 8584),

that "(e]nforcement conferences will not normally be open to the public." 10 C.F.R. Part 2, Appendix c,Section V (1992). In our opinion, open enforcement conferences may inhibit a frank and candid exchange of information, and may reduce a licensee's willingness to verbally admit violations or commit to corrective actions. Compare NRC Enforcement Manual, Section 3. 9. 3. c. In addition, an open enforcement conference may prematurely generate publicity adverse to a licensee -- publicity unwarranted by the facts and inconsistent with the NRC's subsequent enforcement decisions.

!' These comments are submitted on behalf of the following power reactor licensees: Entergy Operations, Inc., Northeast Utilities, Public Service Electric & Gas Company, Rochester Gas & Electric Corporation, Tennessee Valley Authority, and Washington Public Power Supply System.

JAN 2 1 1993 Acknowledged by card ..................................

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WINSTON & STRAWN Mr. Samuel J. Chilk September 11, 1992 Page 2 Nevertheless, since the Commission has decided to re-evaluate its enforcement conference policy by proposing a two-year trial program, wherein "approximately 25 percent of all eligible enforcement conferences * .

• will be open for public observation" (57 Fed. Reg. at 30,763), we offer comments geared toward measures that would mitigate some of the negative repercussions of open enforcement conferences. In addition, we offer suggestions for improving the implementation of the trial program and suggestions for evaluating the effectiveness of an open conference.

It is also our intent to file further comments prior to the completion of the trial program in 1994, to address actual experiences with open conferences.

1. Implementation of the Trial Program The criteria for determining when an enforcement conference will be ineligible for public observation should, in our view, be expanded to include cases where the licensee believes that the participation of a particularly knowledgeable individual involved in the events under discussion is necessary to provide a complete and accurate account of the events related to the enforcement action. currently, the trial program provides that a conference will not be open to the public if the enforcement action could be taken against an individual, if the action turns upon whether an individual committed a wrongdoing, or if NRC has requested a particular individual be present at the conference. ~ 57 Fed.

Reg. at 30,763. However, the criteria should also include situations in which the licensee determines that a particularly knowledgeable individual should attend the conference.

In such situations the individual may not be accustomed to the stressful conditions associated with public speaking, especially an NRC enforcement conference with media present. It may also be unfair to hold an individual out to such public scrutiny. We think there are benefits to allowing individuals with first hand knowledge to speak at an enforcement conference, and this practice should not be effectively discouraged.

To allow for such cases, the licensee should have an opportunity to participate in the NRC decision to open a conference for public observation prior to any public announcement of an open enforcement conference. We suggest that licensees be consulted prior to announcing any open enforcement conference in order to ensure that those cases involving special circumstances (i.e. ,

where "good cause" can be shown to keep the conference closed) are dispositioned prior to a public announcement.

WINSTON & STRAWN Mr. Samuel J. Chilk September 11, 1992 Page 3

2. conduct of Open Enforcement Conferences One of the greatest potential negative impacts of open enforcement conferences is the inherent potential that licensees, and the individuals at the conference representing the licensee, will be "convicted" by the media simply by the fact that a conference is being held. While the NRC may understand that the issues identified for discussion at the conference are not always clear, and subsequently the NRC may conclude that no violation exists (or that its significance is less than initially perceived),

this fundamental concept may be lost on public attendees.

Therefore, we believe that in conducting open enforcement conferences, it is incumbent upon the NRC Staff to set clear guidelines for public attendees, to educate attendees as to the meaning and purpose of the conference, and to avoid staining a licensee's reputation simply by calling an enforcement conference in which to gather information. currently the trial program only directs the NRC Staff to remind public observers that "apparent violations discussed at open enforcement conferences are subject to further review and may change prior to any resulting enforcement action" (57 Fed. Reg. at 30763). We suggest that this reminder be considerably amplified. Also, we suggest that the NRC consider two further measures to protect licensees.

First, since apparent violations discussed at conference are not final agency determinations, in those circumstances where subsequent NRC conclusions differ significantly from the proposed enforcement actions discussed at the conference, NRC should mail each public observer a summary of those conclusions and their bases. In addition, NRC should distribute the same information in a press release, distributed particularly to members of the media who attended the conference. This approach ensures fairness by completing the public record. This would also enhance public understanding of the enforcement process.

Second, given the public's general lack of familiarity with the enforcement process, informational handouts provided to public observers at the conference should clearly note the following:

• An enforcement conference is being held based only on preliminary information available to the NRC.

• An enforcement conference is held to afford the licensee an opportunity to provide information that may not be known to the Staff but which could significantly affect the Staff's evaluation of the particular circumstances.

• The enforcement conference is held before the NRC has completed its own review of a potential enforcement

WINSTON & STRAWN Mr. Samuel J. Chilk September 11, 1992 Page 4 action -- including a review of both the legal and technical basis for any enforcement action.

• It is not preordained, by holding an enforcement conference, that a violation occurred or that a civil penalty is appropriate.

3. Evaluation of the Trial Program With regard to measuring the effectiveness of the trial program, we understand that apparently one reason for implementing this interim policy is to erase a "cloud of suspicion" associated with closed conferences, i.e., concerns that "deals are cut," that the NRC and licensee "negotiate" an appropriate enforcement action.

We do not necessarily agree that such a "cloud" or such perceptions exist. Nonetheless, in order to confirm whether an open enforcement conference indeed reduces such suspicions, we suggest that the NRC Staff establish commonly agreed upon baselines, either objective or subjective, for measuring the effectiveness of an open, as opposed to closed, enforcement conference.

In addition, since open enforcement conferences impact the licensee attending the conference in similar respects to the NRC staff, licensees should be afforded an opportunity to formally report on the same kind of specific impacts that the Staff will collect on itself. The following impacts are relevant to both NRC and the licensee:

• Delay in the enforcement process, including reasons for requesting more preparation time and the resulting effects of a delay.

• Length and formality of the conference, as well as increases in time and costs for conference preparation.

• Public disruptiveness as it relates to follow-up media coverage, e.g., continuing adverse television coverage or news stories, or follow-up demonstrations that key upon a particular disruption at the conference.

• Less openness in communication at the conference, including explanations for why additional information was not provided at the enforcement conference and the amount of and reason for additional post-conference submittals.

• Situations in which the licensee carefully phrases an admission and the reasons for doing so (e.g., different staff demeanor created by presence of the public).

WINSTON & STRAWN Mr. Samuel J. Chilk September 11, 1992 Page 5

• The degree to which management, legal, or public relations involvement in the conference or its preparation was increased.

• The amount of negative publicity directed toward a licensee, unwarranted by later results from the enforcement conference.

To address these potential areas of licensee impact, we suggest the NRC Staff develop questions for the licensee to answer and submit in confidence after the open enforcement conference, and after disposition of the enforcement matter.~ ~, ~,

Enclosure 2 to SECY 92-194, "Policy Statement for Two Year Trial Program for Conducting Open Enforcement Conferences" (May 26, 1992).

4. conclusion In conclusion, we reiterate the need for the Staff to more clearly educate the public observers at the conference as to the purpose of the conference. In addition, throughout the implementation and evaluation of this trial program, we urge the Staff to keep the public informed of results. We also urge the Commission to solicit further comments and input from industry participants on the trial program. As always, we appreciate this opportunity to provide input to the NRC's enforcement process.

Nich Davi Sheld WINSTON &

y An opportunity for oral feedback and the general availability of a non-specific comment sheet -- as practiced at the first two open enforcement conferences -- seems insufficient to gather consistent, meaningful input on impacts of the policy on licensees.

u ROPO~E~ *~Bt; PR /Vhs-c Cs-1 Ffl 30762..)

KRISTINE M. GEBBIE Secretary L'JCK[ 1LD U NRC (j)

STATE OF WASHINGTON

'92 SEP -9 A9 :24 DEPARTMENT OF HEALTH Airdustrial Center, Bldg. 5, LE-13

• P.O. Box 47827

• Olympia, Washington 98504-7827 _ _ _ , ~ T. c -1

, r1*1('~ I' ')t.1, K . . I- f' September 2, 1992 f10c*1zf- NG *, **.~iiVICf i~t,Nl ,~1 The Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.G. 20555 Attention: Docketing and Service Branch

Dear Sir:

The following are comments regarding the two year trial program for conducting open enforcement conferences, which started July 10, 1992 concurrent with publication of the policy statement in the Federal Register. We will be very interested in learning at the conclusion of the trial program in 1994 how successful the program will have been in providing open access to the enforcement actions of government. In the meantime, the following comments may be useful in fine tuning the program.

First of all, what is the point of public observation? For this to be more than just a token effort you should consider further your mechanisms for public input, notification, and conference location. Whether a public interest group or a single concerned citizen, there should be a clear mechanism for the general public to comment on the enforcement actions taken or to provide additional information which may or may not be known to the NRG. An opportunity immediately following the enforcement conference would seem reasonable for allowing such feedback without interfering with the enforcement action.

You have identified several good methods for allowing the public to access information on open enforcement conferences. However, each of these methods can be faulted because they force the general public to "bird dog" NRG actions. As a "normal" member of the public (not on a public interest group's hot line and not a Federal Register subscriber), I would have to call NRG at least every ten days to be sure I had not missed an announcement . Eventually I would get tired of doing this and consequently I would probably miss the one enforcement conference that might be of interest. I would suggest that provisions be made for members of the public to register with NRG their interest in a specific licensee. Announcements of open enforcement conferences would then be mailed to those members of the public interested in a particular licensee. This would be in addition to, not a substitute for, the other methods of announcing open enforcement conferences as stated in the Federal Register notice.

It would appear that most enforcement conferences would be held in the NRG regional offices. Potentially this would require the interested public to travel great distances, even though the licensee, in whom they are interested, may be in their neighborhood. Public involvement would likely be greater if the enforcement conference was held in the vicinity of the licensee; perhaps at some

state or local government facility . Of course I recognize that there is a trade off between cost to the licensee to come to the regional office vs. NRG travel to the licensee's vicinity . You may wish to consider whether the potential embarrassment of local public attendance at an enforcement conference is an acceptable or perhaps a more desirable alternative to the hidden financial penalty of forced travel to a regional NRG office.

Good luck in implementing this trial program and policy.

Sincerely, c::::;;,~1~or Radioactive Materials Section TCF:amw CC: Carlton Kammerer, Director, Office of State Programs All Agreement States

OCKET NUMBUELER Pf*' FOSED R PR ~

M:t~ G :

[7590-01]

NUCLEAR REGULATORY COMMISSION Two-Year Trial Program for conducting Open Enforcement Conferences; Availability of Toll-Free DOCKETED AGENCY: Nuclear Regulatory Commission.

r:::_; SEP - 8 1992

\ D'JCKETING &

SiAVICE BRANCH SECY-NRC ACTION: Policy Statement; Supplement.

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SUMMARY

The Nuclear Regulatory Commission (NRC) is issuing a supplement to its policy statement that establishes a two-year trial program for conducting open enforcement conferences. The purpose of this supplement is to inform the public of the toll-free phone number that may be used to get information on upcoming open enforcement conferences.

EFFECTIVE DATE: Date of publication in the Federal Register.

FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555 (301-504-2741).

SUPPLEMENTARY INFORMATION:

On July 10, 1992 (57 FR 30762), the Commission published a policy statement on the implementation of a two-year trial

allow selected enforcement conferences to be open to public observation. The policy statement explained that the NRC would announce open enforcement conferences to.the public normally at least 10 working days in advance of the enforcement conference through the following mechanisms:

(1) Notices posted in the Public Document Room; (2) Toll-free telephone messages; and (3) Toll-free electronic bulletin board messages.

At the time the policy statement was published, the toll-free message systems were not available and a commercial phone number was provided pending establishment of the toll-free message systems. Although the toll-free electronic bulletin board message system is still unavailable, the public may call (800) 952-9674 to obtain a recording of upcoming open enforcement conferences. The NRC will issue another Federal Register notice after the toll-free electronic bulletin board message system is established.

Dated at Rockville, MD, this ~ day of ~k:-- 1992.

For the Nuclear Regulatory Commission.

Lieberman, Director Office of Enforcement.

[7590~ll0 USNHt NUCLEAR REGULATORY COMMISSION

'92 JlL -7 A9 :05 Two-Year Trial Program for conducting Open Enforcepn oF SELtiET/\R',.,

iJOCK[11NG & SFfiVICL conferences; Policy statement 8R6.NCH AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement.

SUMMARY

The Nuclear Regulatory Commission (NRC) is issuing this policy statement on the implementation of a two-year trial program to allow selected enforcement conferences to be open to attendance by all members of the general public. This policy statement describes the two-year trial program and informs the public of how to get information on upcoming open enforcement conferences.

7 In /CJLf DATES: This trial program is effective on (publication in the Federal Register) while comments on the program are being received. Submit comments on or before the completion of the trial program scheduled for (two years after the date of publication). Comments received after this date will be considered if it is practical to do so, but the Commission is able to assure consideration only for comments received on or before this date.

(JJ' ~;~

1 / 1DI qJ.-

./

ADDRESSES: Send comments to: The Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555. ATTN:

Docketing and Service Branch.

Hand deliver comments to: One White Flint North, 11555 Rockville Pike, Rockville, MD between 7:45 a.m. to 4:15 p.m., Federal workdays.

Copies of comments may be examined at the NRC Public Document Room, 2120 L Street, NW. (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555 (301-504-2741).

SUPPLEMENTARY INFORMATION:

Background

The NRC's current policy on enforcement conferences is addressed in Section V of the latest revision to the "General Statement of Policy and Procedure for Enforcement Actions,"

(Enforcement Policy) 10 CFR Part 2, Appendix c that was published on February 18, 1992 (57 FR 5791). The Enforcement Policy states that, "enforcement conferences will not normally be open to the public." However, the Commission has decided to implement a trial program to determine whether to maintain the current 2

policy with regard to enforcement conferences or to adopt a new policy that would allow most enforcement conferences to be open to attendance by all members of the public.

Policy statement Position, The NRC is implementing a two-year trial program to allow

• public observation of selected enforcement conferences. The NRC will monitor the program and determine whether to establish a permanent policy for conducting open enforcement conferences based on an assessment of the following criteria:

(1) Whether the fact that the conference was open impacted the NRC's ability to conduct a meaningful conference and/or implement the NRC's enforcement program; (2) Whether the open conference impacted the licensee's participation in the conference; (3) Whether the NRC expended a significant amount of resources in making the conference public; and (4) The extent of public interest in opening the enforcement conference.

3

I. Criteria For Selecting Open Enforcement Conferences Enforcement conferences will not be open to the public if the enforcement action being contemplated --

(1) Would be taken against an individual, or if the action, though not taken against an individual, turns on whether an individual has committed wrongdoing; (2) Involves significant personnel failures where the NRC has requested that the individual(s) involved be present at the conference; (3) Is based on the findings of an NRC Office of Investigations {OI) report; or (4) Involves safeguards information, Privacy Act information, or other information which could be considered proprietary.

Enforcement conferences involving medical misadministrations or overexposures will be open assuming the conference can be

• conducted without disclosing the exposed individual's name. In addition, enforcement conferences will not be open to the public if the conference will be conducted by telephone or the conference will be conducted at a relatively small licensee's facility. Finally, with the approval of the Executive Director for Operations, enforcement conferences will not be open to the public in special cases where good cause has been shown after balancing the benefit of public observation against the potential impact on the agency's enforcement action in a particular case.

4

The NRC will strive to conduct open enforcement conferences during the two-year trial program in accordance with the following three goals:

(1) Approximately 25 percent of all eligible enforcement conferences conducted by the NRC will be open for public observation; (2) At least one open enforcement conference will be conducted in each of the regional offices; and (3) Open enforcement conferences will be conducted with a variety of the types of licensees.

To avoid potential bias in the selection process and to attempt to meet the three goals stated above, every fourth eligible enforcement conference involving one of three categories of licensees will normally be open to the public during the trial program. However, in cases where there is an ongoing

• adjudicatory proceeding with one or more intervenors, enforcement conferences involving issues related to the subject matter of tne ongoing adjudication may also be opened. For the purposes of this trial program, the three categories of licensees will be commercial operating reactors, hospitals, and other licensees, which will consist of the remaining types of licensees.

5

II. Announcing Open Enforcement Conferences As soon as it is determined that an enforcement conference will be open to public observation, the NRC will orally notify the licensee that the enforcement conference will be open to public observation as part of the agency's trial program and send the licensee a copy of this Federal Register notice that outlines the program. Licensees will be asked to estimate the number of participants it will bring to the enforcement conference so that the NRc* can schedule an appropriately sized conference room. The NRC will also notify appropriate State liaison officers that an enforcement conference has been scheduled and that it is open to public observation.

The NRC intends to announce open enforcement conferences to the public normally at least 10 working days in advance of the enforcement conference through the following mechanisms:

(1) Notices posted in the Public Document Room; (2) Toll-free telephone messages; and (3) Toll-free electronic bulletin board messages.

Pending establishment of the toll-free message systems, the public may call (301) 492-4732 to obtain a recording of upcoming open enforcement conferences. The NRC will issue another Federal Register notic~ after the toll-free message systems are established.

To assist the NRC in making appropriate arrangements to support public observation of enforcement conferences, 6

individuals interested in attending a particular enforcement conference should notify the individual identified in the meeting notice announcing the open enforcement conference no later than five business days prior to the enforcement conference.

III. Conduct of Open Enforcement conferences In accordance with current practice, enforcement conferences will continue to normally be held at the NRC regional offices.

Members of the public will be allowed access to the NRC regional offices to attend open enforcement conferences in accordance with the "Standard Operating Procedures For Providing Security Support For NRC Hearings And Meetings" published November 1, 1991 (56 FR 56251). These procedures provide that visitors may be subject to personnel screening, that signs, banners, posters, etc., not larger than 18 11 be permitted, and that disruptive persons may be removed *

• Each regional office will continue to conduct the enforcement conference proceedings in accordance with regional practice. The enforcement conference will continue to be a meeting between the NRC and the licensee. While the enforcement conference is open for public observation, it is not open for public participation.

Persons attending open enforcement conferences are reminded that (1) the apparent violations discussed at open enforcement 7

conferences are subject to further review and may be subject to change prior to any resulting enforcement action and (2) the statements of views or expressions of opinion made by NRC employees at open enforcement conferences or the lack thereof, are not intended to represent final determinations or beliefs.

In addition to providing comments on the agency's trial program in accordance with the guidance in this notice, persons attending open enforcement conferences will be provided an

- opportunity to submit written comments anonymously to the regional office. These comments will subsequently be forwarded to the Director of the Office of Enforcement for review and consideration.

1992.

Commission .

• Secretary of the Commission.

8