ML23156A476

PR-MISC - 58FR48080 - Staff Meetings Open to the Public; Proposed

ML23156A476
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Issue date:	09/14/1993
From:	Chilk S NRC/SECY
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PR-MISC, 58FR48080
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ADAMS Template: SECY-067 DOCUMENT DATE: 09/14/1993 TITLE: PR-MISC - 58FR48080 - STAFF MEETINGS OPEN TO THE PUBLIC; PROPOSED CASE

REFERENCE:

PR-MISC 58FR48080 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAKING PROPOSED RULE: PR-MISC OPEN ITEM (Y/N) N RULE NAME: STAFF MEETINGS OPEN TO THE PUBLIC; PROPOSED POLICY STATEMENT PROPOSED RULE FED REG CITE: 58FR48080 PROPOSED RULE PUBLICATION DATE: 09/14/93 NUMBER OF COMMENTS: 14 ORIGINAL DATE FOR COMMENTS: 11/15/93 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: 59FR48340 FINAL RULE PUBLICATION DATE: 09/20/94 NOTES ON FILE LOCATED ON Pl.

STATUS F RULE TO FIND THE STAFF CONTACT OR VIEW THE RULEMAKING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PR-MISC RULE TITLE: STAFF MEETINGS OPEN TO THE PUBLIC; PROPOSED POLICY STATEMENT

~ KOPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: 93-034 SRM DATE: 05/12/93 SIGNED BY SECRETARY: 09/08/93 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: 94-169 SRM DATE: 08/03/94 SIGNED BY SECRETARY: 09/14/94 STAFF CONTACTS ON THE RULE CONTACT1: DONNIE H. GRIMSLEY MAIL STOP: P-370 PHONE: 492-7211 CONTACT2: MAIL STOP: PHONE:

DOCKET NO . PR-MISC {58FR48080)

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 09/14/94 09/14/94 FINAL POLICY STATEMENT FEDERAL REGISTER NOTICE PUBLISHED ON 9/20/94 AT 59 FR 48340 .

D CKET NUMBER PROPOSED RULE Pl ,~L,-,L.....,'SC 1

ins

(~Y FR 480 e-o) oocKETE US~tR C

[7590-01-P]

• 94 SL 14 P 2 :~ 6 NUCLEAR REGULATORY COMMISSION Staff Meetings Open to the ~ tiblic; Final Policy Statement AGENCY: Nuclear Regulatory Commission.

ACTION: Final policy statement.

SUMMARY

This statement presents the policy that the Nuclear

- Regulatory Commission (NRC) staff will follow in opening meetings between the NRC staff and one or more outside persons to public observation. This policy statement also announces central agency services available to the public for obtaiuing schedules for the staff meetings that are open to public attendance. Implementing guidance will be issued to the NRC staff as a management directive. The policy statement re l ates only to meetings involving the NRC staff and does not affect existing regulations that apply to public attendance at meetings such as Commission meetings, advisory committee meetings, and enforcement conferences.

EFFECTIVE DATE: November 1, 1994.

ADDRESSES: Management Directive 3.5 and copies of comments received on the proposed policy statement are available for inspection at the NRC Public Document Room, 2120 L st., NW.

(Lower Level), Washington, DC.

fJ--. ,_, q/u,/q'I d~iFY< '-/B-3'iO

FOR FURTHER INFORMATION CONTACT: Donnie H. Grimsley, Office of Administration, U.S. Nuclear Regulatory Commission, Washington ,

D.C. 20555-0001, telephone: (301) 504-1881.

SUPPLEMENTARY INFORMATION:

I.

Background:

The NRC first published its policy for open staff meetings in the Federal Register on June 28, 1978 (43 FR 28058). On September 14, 1993 (FR 48080), the NRC published for public comment a proposed policy statement entitled "Staff Meetings Open to the Public" in the Federal Register that would supersede the policy statement of 1978 (58 FR 48080). The NRC requested comments on the proposed policy statement and on comments submitted previously by the American Mining Congress that were made in response to an interim NRC policy statement similar to the po l icy statement that was proposed.

II. Summary of Public Comments on the Proposed Policy Statement and NRC Responses General Comments In late 1993, the NRC received 13 letters with comments on the proposed policy statement on "Staff Meetings Open to the Public." These comments were from the following organizations:

the American Mining Congress; two law firms, Winston & Strawn and Newman & Holtzinger, P.C.; and seven utilities, including Texas Electric, Yankee Atomic Electric Company, Commonwealth Edison 2

Company, Florida Power Corporation, Georgia Power Company, Virginia Electric and Power Company, and Southern Nuclear Operating Company; the Nuclear Management and Resources council, the State of New Jersey Department of Environmental Protection and Energy, and Ohio Citizens for Responsible Energy, Inc.

(OCRE). Two of these commenters, Georgia Power Company and Virginia Electric and Power Company, endorsed the comments of the Nuclear Management and Resources Council.

Two commenters endorsed the proposed policy sta~ement. The other commenters either objected to the proposed policy statement or expressed their preference for retainin~ the 1978 policy statement. Several endorsed the general concept of opening staff meetings. Most offered suggestions for improving the proposed policy statement should it be adopted by the Commission.

Impact on the Quality of Public Meetings The principal concern expressed was that having the public

- present during meetings with the NRC staff would have an adverse impact on the quality of those meetings. Several commenters indicated that the presence of the public at meetings with the NRC staff would unnecessarily complicate NRC and licensee discussions, would adversely affect the candor of those discussions (because the public would likely misunderstand and misconstrue the content of conversations), and would generally have an adverse effect on open communications between the NRC and licensees.

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The NRC has been conducting public meetings for nearly 15 years under the 1978 policy statement. Since September 1992, the Office of Nuclear Reactor Regulation, the Office for Analysis and Evaluation of Operational Data, and the regional offices have operated under an interim policy similar to the proposed policy statement. The NRC has not found that meetings open to the public under the 1978 policy statement or under the 1992 Interim Policy Statement have substantially interfered with the NRC staff's ability to accomplish its meeting goals or that the presence of public observers adversely affected its ability to -

communicate openly with licensees and other participants. Even though the NRC recognizes that having meetings open to public observation exposes the participants to the risk that information may be misunderstood or misconstrued, the NRC has not, in its.

many years of public meetings, found that risk to be of' sufficient concern to outweigh the public confidence- gained. in the NRC's regulatory programs that comes from public observation of NRC staff meetings with outside persons.

Policy Expansion Several commenters viewed the presumption that all staff meetings are open for public observation unless they fall into one of the exemptions detailed in the proposed policy statement as representing a significant extension of the agency policy on open staff meetings over that published in the 1978 policy statement. They also argue that the extension adds little to existing opportunities for public participation.

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The NRC agrees that the proposed policy statement would result in more meetings being open to the public than would have been under the 1978 policy statement. The 1978 policy covered only meetings between the NRC and parties to proceedings. The proposed policy statement reflects NRC's longstanding practice of providing the public with the fullest information practicable on its activities and of conducting business in an open manner.

Evolving agency practice since 1978 has resulted in additional

- types of meetings being open to the public that are not covered by the 1978 policy statement. These include meetings with licensees on technical issues, with licensee senior manag~ment on Systematic Assessment of Licensee Performance reports, and with licensees on exit meetings for special team inspections or by accident investigation and diagnostic evaluation teams. In addition, NRC has open meetings with trade organizations and with public interest groups regarding policy and technical issues and the agency's regulatory responsibilities. The policy statement" codifies current practice by establishing uniform guidelines for the staff.

Definition of a Public Meeting Several commenters offered suggestions for refining the definition of "public meetlng. 11 - Several commente~~ suggested that the type of individuals attending a meeting should be a determinant of whether the meeting is open to the public. One commenter suggested limiting public meetings to those where a decision-maker was attending. Other commenters suggested 5

limiting public meetings only to those where technical staff were in attendance or where only a project manager and one or more license representatives were present. The NRC strongly believe~

that the subject matter of the meeting, or the administrative burden of opening the meeting, rather than the type of participant in attendance, should be the determining criterion for deciding if a meeting should be considered open for public observation.

One commenter expressed concern that the policy does not apply to state and local governments, including agreement states. -

The policy statement does apply to those entities as provided for in Section C.1. of the policy statement.

A commenter suggested language be included to establish a presumption that meetings between the NRC staff and outside parties be open. The NRC believes its policy statement clearly announces a policy of openness and establishes only a limited number of necessary exemptions. The NRC believes the policy statement provides meaningful opportunities for the public tc be -

informed of NRC activities without unduly affecting open and candid discussions between licensees and the NRC staff or interfering with the NRC staff's ability to exercise its regulatory and safety responsibilities without undue administrative burden.

Other commenters suggested that the definition of a public meeting specifically exclude all meetings other than "face to face meetings," that is, exclude meetings using electronic 6

communications, such as telephone conference calls or teleconferencing. The NRC agrees that the definition of a public meeting is not intended to include conversations using electronic communications and has modified the definition to clarify that meetings covered by this policy statement are those where participants are physically present at a single meeting site.

One commenter suggested that the definition of a public meeting be limited to one in which public interest has been expressed or where the NRC has reason to believe there is substantial public interest.* The use of this type of criterion would require that the NRC judge what is of significant in~erest to a wide range of groups that have varied interests., The NRC does not presume to judge for these varied groups what meetings they may consider to be of signific3nt interest. The NRC believes that it is the responsibility of members of the public, not the NRC, to decide if they are interested in attending a staff meeting.

Several com.mentezd suggested that the public's role at open staff meetings be clearly limited to that of observers. The preamble of the proposed policy statement clearly states that staff meetings open to the public would be open only to observation. However, in response to this concern, the NRC has amended the definition of a public meeting to include the phrase, "open to public observation."

Several comm.enters suggested that the policy statement include specific ways to limit public participation, such as 7

permitting members of the public to ask questions only at the conclusion of a meet~ng or .requiring them to submit written comments or questions. The policy statement is not intended to address the role of the public beyond that of observation.

However, the NRC recognizes that some meetings open under the policy statement may warrant a greater degree of public participation. If participation beyond that of observation is allowed for a particular meeting, a description of the degree of participation will be specified when the meeting is announced and at the outset of the meeting by the senior NRC official 9 participating in the meeting.

One commenter asked that NRC prohibit members of the public from interrupting meetings to pursue a personal agenda or raise public policy issues. The NRC recognizes the concern outside persons may have regarding this possibility. As above, the NRC staff will indicate ~he ground rules for a public. meeting at the beginning of a meeting and adhere to those rules throughout the meeting.

The suggestion that the term "encounter" in the definition of a public meeting be changed to "meeting" was rejected. Had this suggestion been accepted, the definition would have read, "A public meeting is a formal meeting, .*. " phrasing that does not comply with the logical terms of a definition.

Exemptions In reviewing the comments regarding the exemptions and scope of the policy statement, the NRC staff recognizes that exemption 8

"g" should be clarified. The phrase, "Is a general information exchange" has been adaed to the exemption. Furthermore, guidance has been provided to the staff at the end of Section C.2 as follows: "Also note that meetings between staff and licensees or trade groups to discuss technical issues or licensee performance would normally be open because they may lead to a specific regulatory decision or action. However, should a meeting involving a general information exchange be closed and should discussions during such a meeting approach issues that might lead to a specific regulatory decision or action, the NRC staff may advise the meeting attendees ~hat such matters cannot be

,4 discussed in a closed meeting and propose discussing the issues t in a future open meeting."

Several commenters suggested that the policy statement contain additional specific exemptions for closing a meeting.

For e~ample, one commenter suggested closing meetings that are ad.ministra~ive in nature, that are held to discuss scheduling or constraints associated with licensee actions, or that are held to review material submitted to the NRC by licensees. The NRC believes that these types of meetings will be exempt to the extent the definition of a public meeting encompasses only meetings where substarttive issues are discussed. Also*, exemption "g" as rewritten covers those types of meetings because they are held only for the exchange of information.

Several commenters suggested closing meetings for the exchange of preliminary, unverified information; meetings held 9

within a licensee's protected areas; and meetings between NRC Resident Inspectors and licensees. The NRC believes that these types of meetings are already exempted by the policy statement in that the first type would be closed under exemption "f," and second and third types would be closed under exemption "h."

One commenter suggested that exemp.tions "f," "g," and "h" need to be refined to preserve NRC's flexibility to carry out its health and safety responsibilities without being unduly inhibited by the expanded openness policy. Another commenter believed these exempt~ons were too broad. NRC believes exemption "f" is sufficiently focused to be clearly interpreted. Exemptions "g" and 11 h 11 have been refined and the NRC.believes that the policy statement has sufficient flexibility to ensure that*NRC meets its safety and regulatory responsibilities. The policy statement clearly enunciates this flexibility in stating, "[t]his policy is a matter of NRC discretion and may be departed from*as NRC convenience and necessity may dictate." The commenter specifically requested that the term "substantially" be deleted -

from exemption "h. 11 The NRC agrees because the NRC will not open a meeting if the NRC staff believes the administrative burden will interfere with the efficient performance of its safety and regulatory responsibilities and exemption "h",has been broadened to specifically exclude meetings held as an integr~l part of an NRC inspection.

One commenter interpreted the provision in exemption "f" in the policy statement as a means to exempt meetings convened to 10

solve potential problems, such as reclamation proposals or enforcement matters. The NRC does not agree with this interpretation. The exemption addresses meetings that could result in the inappropriate disclosure and dissemination of "preliminary, unverified information." The purpose of this exemption is not to close all meetings for which preliminary information, proposals, or concerns are discussed, but to specifically ensure that agency licensees and applicants will not be inhibited in bringing preliminary, unverified information to the attention of the NRC.

The NRC staff believes that this reasoning applies to*~.-

another commenter who believes that meetings betueen the staff and licensees, where technical issues or approaches to emerging issues are discussed, should also be classified as "preliminary" in nature and not open to the public.

Meeting Arrangements Several commenters raised issues regarding arrangements for public meetings. One recommended that public recording and transcription of meetings be prohibited. The NRC does not believe it should limit public attendees when they want to record or transcribe proceedings which they have a right to attend.

This type of a prohibition* would be-difficult to_ enforce and would infringe upon an established practice of media representatives and others who routinely record public proceedings for their convenience and subsequent use.

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One commenter suggested that "outside parties" be consulted before announcing a meeting open to public observation because they may wish to submit proprietary, personal, or other confidential information prior to the meeting. Another suggested that the NRC staff inform the "outside parties" if a meeting will be a public meeting. This is the current NRC practice; however, the NRC will include a provision 'in its implementing management directive emphasizing that the NRC staff should make outside persons aware when a meeting will be a public meeting. This practice will allow the outside persons to raise concerns regarding confidential information before a meeting.

I Several commenters expressed the concern that essential or urgent meetings would not be scheduled promptly enough because of the need to provide "ten.days advanced notice." This provision is intended to ensure that when the NRC staff deems that a meeting should be a public meeting there is sufficient time to provide adequate public notice of the meeting. When a meeting, is deemed essential and a<lequate public notice cannot be provided, -

exemption "h" of the policy statement would apply because trying to provide notice would constitute an administrative burden that could interfere with the NRC staff's efficient execution of its safety and regulatory responsibilities; however, limited notice would still be provided using available telephone and electronic bulletin board systems.

Another commenter noted that its experience has been that some past public meetings noticed in .. the Federal Register were 12

published on the day of the meeting or published so close to the date of the meeting that public attendance was impossible. The NRC recognizes that delays may occur because of the requirement to publish a notice of the meeting in*the Federal Register.

Consequently, the NRC did not adopt publication in the Federal Register as the principal mechanism for announcing public staff meetings. The NRC will announce public meetings through a toll-free telephone recording, a toll-free electronic bulletin board, weekly distribution of public meeting announcements to the Press, and by posting meeting announcements in the NRC Public Document Room.

One commenter suggested that minutes of closed meetings be prepared when substantive regulatory issues are raised in a closed meeting or when minutes of the closed meeting can be prepared and released to the public. The NRC recognizes that closed meetings may involve discussions regarding substantive regulatory matters, such as those involving preliminary, unverified information; meetings may also be closed because of the administrative burden of opening the meeting for public observation. The NRC does not believe it is necessary to require in the policy statement the preparation of meeting minutes or summaries of closed meetings. However, current NRC practice, when appropriate, is to make publicly available summaries of non-public meetings. This practice will continue.

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Duration of Policy One commenter suggested that any revised policy adopted by the NRC be limited to a two-year trial basis similar to that approved for open enforcement conferences. Another commenter suggested that the ,policy statement should be limited to a period necessary to determine if there is sufficient interest to justify the expense of opening routine meetings to the public. The NRC believes that its long-term experience with open meetings justifies opening staff meetings and that this practice has resulted in significant benefits to the public. Thus the NRC does not believe its policy should be limited for any particular period of time.

Costs Several commenters expressed concern regarding expenditures that would be required by the NRC and licensees to accommodate-public observation of meetings. Two commenters expressed concern that additional expenditures would *be incurred without commensurate benefits; for example, that public meetings may be -

held with no public attendance. Should this happen, these commenters suggested that these types of meetings be added as exemptions because no public interest in them would have been demonstrated. Others believed that the proposal should be abandoned because it would affect fee assessments under the agency's 100-percent user fee policy, resulting in a net loss in regulatory effectiveness and with no public benefit. The NRC does not envision more than a nominal increase in expenditures 14

because the meetings in question will be held with or without public attendance, and are usually held at NRC facilities and meetings at licensee facilities are normally held in a facility readily accessible to the public. NRC's costs associated with operating the toll-free telephone line*and the public-access electronic bulletin board are minimal and, to a great extent, offset by consolidating seve~al current meeting notice telephone systems into one. Press notices of public meetings will be included in the agency's Weekly Press Release compilation.

Concerns related to fee assessments are routinely addressed as part of rulemakings for 10 CFR 170 and 171. In February 19~4, the NRC issued the "Report to the congress on the U.S. Nuclear Regulatory Commission Commission's Licensee Policy Review Required by the Energy Policy Act oE 1992" that addresses concerns raised regarding the NRC licensee fee policy.

American Mining Congress Comments The NRC invited public comment on concerns that had been submitted by the American Mining Congress (AMC) on the September 1992, Interim Policy Guidance that had been used by the NRC Office of Nuclear Reactor Regulation, the Office for Analysis and Evaluation of Operational Data, and the NRC regional offices.

The AMC stated that the proposed policy was generally responsive to its concerns. AMC's additional comments and the concerns of other commenters who referenced AMC's concerns are addressed in the preceding analysis of comments in Section II of this document.

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III. Discussion of the Policy The purpose of revising the open meeting policy is to further the goal of providing meaningfu~ opportunities for the public to be informed of NRC activities without unduly affecting open and candid discussions between licensees and the NRC staff or interfering with the NRC staff's ability to exercise its regulatory and safety responsibilities without undue administrative burden. The policy also provides guidance to the NRC staff concerning the types of-meetings that should be open to public observation. The open meeting policy is a matter of NRC -

discretion and may be departed from as NRC convenience and necessity may dictate.

The open meeting policy excludes meetings where.the expressed intent is not to discuss substantive issues that are directly associated with NRC's regulatory and safety responsibilities. Meetings that would not need to be open cou!d include training, conferences, and association meetings where both NRC staff and applicant/licensee officials participate. The open meeting policy also excludes meetings or interviews between NRC staff and licensee staff or management personnel that occur during the performance of an NRC inspection. The policy also excludes mEetings the NRC staff has with its own employees, contractors, and consultants, other Federal agencies where the matter does not relate to a specific activity for which NRC has

_ oversight,_ and with representatives of foreign governments and state and local representatives on matters other than those 16

relating to specific NRC licensing or regulatory actions involving individual NRC licensees.

Exemptions to the policy will permit meetings to be closed to ensure that classified, commercial or financial proprietary, safeguards, personal privacy, and investigative information protected by statute or otherwise requiring protection is not disclosed to the public. Other exemptions are provided to ensure that the NRC staff has sufficient flexibility to efficiently carry out its responsibilities.

A meeting to discuss preliminary, unverified information is not an open meeting under the policy. The purpose of this:}

exemption is to ensure that licensees and ~pplicants are not inhibited in bringing to the Commission information that is not verified or sufficiently analyzed to draw firm conclusions. It also ensures that discussions about potential implications of this type of information occur candidly and openly without fear that it may be misunderstood by the public as fact or as final conclusions.

A meeting that is an information exchange having no direct, substantive connection to a specific NRC decision or action is not an open meeting under this policy. The purpose of this exemption is to ensure that routine administrative matters relating to regulatory activities can be carried out efficiently.

For example, drop-in visits or similar management meetings between senior executives of a utility licensed to operate a j

nuclear power plant and the Executive Director for Operations, 17

Regional Administrators, or other senior NRC managers are generally closed meetings because they typically consist of a general exchange of information ~ot directly related to any regulatory action or decision. Furthermore, meetings to discuss schedules for NRC actions, or the status of an applicant's or licensee's activities would not be open under this exemption.

Meetings between staff and licensees or trade groups to discuss technical issues or licensee performance would normally be open under this provision because they may lead to specific regulatory action.

The final exemption,is for meetings where.the administrative burden associated with public attendance could interfere with the NRC staff's efficient execution of its safety and regulatory responsibilities. This exemption ensures that the NRC staff has the discretion to have a needed meeting on short notice where adequate public notice cannot be provided without placing an undue bqrden on the agency. The meeting could be necessary because of an urgent issue that needs addressing or where the opportunity becomes available on short notice to meet with an official of the applicant or licensee that would benefit the NRC staff person in carrying out his or her duties. The meeting also might be in a location that does not have the facilities to easily accommodate the public, such as within a plant's protected area, because these meetings would require an undue administrative burden to establish access authorization for members of the public. For example, an NRC manager may visit a 18

facility on short notice or without any notice for purposes other than meeting with llcensee officials. These purposes may include but are not limited to monitoring and assessing the performance of NRC subordinates, touring the facility, or independently assessing licensee performance. During such a trip, he or she may visit licensee officials and may discuss substantive regulatory issues with them. Opening such a meeting to the public would constitute an undue administrative burden and could

• impede the efficient executions of the NRC's safety and regulatory responsibilities.

The public meeting notice system planned for providing,t'.

public notice of all NRC staff meetings open to the publi'c will have a toll-free telephone recording and a public-access electronic bulletin board for announcing meeting notice information. Open staff meetings will also be announced by a weekly press release as well as being posted in the agency's Public Document Room, as is the current practice.

IV. Commission Policy Statement on Staff Meetings Open to the Public A. Purpose This statement presents the policy that *the Nuclear Regulatory Commission (NRC) staff will follow in opening meetings between the NRC staff and one or more outside persons to public observation. The policy continues NRC's longstanding practice of providing the public with the fulle~t information practicable on 19

its activities and of conducting business in an open manner, while balancing the need for the NRC staff to exercise its regulatory and safety,responsibilities without undue administrative burden. This policy also announces central agency services available to the public for obtaining schedules for the staff meetings that are open to public attendance. Implementing guidance will be issued to the NRC staff as a management directive. This meeting policy is a matter of NRC discretion and may be departed from as.NRC convenience and necessity may dictate.

B. Definition A public meeting is a planned; formal encounter open to public observation between one or more NRC staff members and one or more outside persons physically present at a single meeting site, with the expressed intent of discussing substantive issues that are*directly associated with the NRC's regulatory and safety responsibilities.

An outside person is any individual who is not

a. An NRC employee;

b. Under contract to the NRC;

c. Acting in an official capacity as a consultant to the NRC;

d. Acting in an official capacity as a representative of an agency of the executive, legislative, or judicial branch of the U.S. Government (except when the agency is subject to NRC regulatory oversight);

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e. Acting in an official capacity as a representative of a foreign governmant;

f. Acting in an official capacity as a representative of a State or local government (except when specific NRC licensing or regulatory matters are discussed).

C. Applicability and Exemptions

1. This policy applies solely to NRC staff-sponsored and

• conducted meetings and not to meetings conducted by outside entities that NRC staff members might attend and participate in.

It does not apply to the Commission or offices that report.

directly to the Commission. 'similarly, it does not apply to meetings between the NRC staff and representatives of State governments, including Agreement State representatives, relating to NRC Agreement State activities or to State regulatory actions or to other matters of general interest to the State or to .the Commission, that is, matters other than specific NRC licensing or regulatory actions involving specific licensees. Also, the policy is not intended to apply to or supersede any existing law, rule, or regulation that addresses public attendance at a specific type of meeting. For example, 10 CFR Part 7 specifically addresses public attendance at advisory committee meetings; and 10 CFR Part 9, Subpart c, addresses public attendance at commission meetings. The policy also does not negate existing Memoranda of Understanding, procedural agreements, or other formal agreements or requirements regarding 21

the accessibility of the public to observe or participate in meetings between NRC and its licensees or any other entities. In addition, the policy does not apply to meetings involving enforcement matters under 10 CFR Part 2, Appendix C nor to settlement conferences.

2. In general, meetings between the NRC staff and outside persons will be classified as public meetings unless the NRC staff determines that the subject matter to be discussed--

a. Is specifically authorized by an Executive Order to be kept secret in the interests of national defense or foreign pol1cy (classified information) or specifically exempted from public disclosure by statute;

b. Contains trade secrets and commercial or financial information (proprietary information);

c. Contains safeguards information;

d. Is of a personal natur~ where such disclosure would constitute a clearly unwarranted invasion of personal privacy;

e. Is related to a planned, ongoing, or completed investigation and/or contains information compiled for law enforcement purposes;

f. Could result in the inappropriate disclosure and dissemination of preliminary, unverified information;

g. Is a general information exchange having no direct, substantive connection to a specific NRC regulatory decision or action; 22

h. Indicates that the administrative burden associated with public attendance at the meeting could result in interfering with the NRC staff's execution of its safety and regulatory responsibilities, such as when the meeting is an integral part of the execution of the NRC inspection program.

It is important to note that whether or not a meeting should be open for public attendance is dependent primarily on the subject matter to be discussed, not who outside nor who within the NRC staff is participating (e.g., staff level versus senior management).

Also note that meetings between staff and licensees or trade groups to discuss technical issues or licensee performance would normally be open because they may ~aad to a specific regulatory decision or action. However, should a meeting involving a general information exchange be closed and should discussions during such a meeting approach issues that might lead to a specific regulatory decision or action, the NRC staff may advise the meeting attendees that such matters cannot be discussed in a closed meeting and propose discussing the issues in a future open meeting.

D. Notice to the Public

1. Normally, meeting announcement information is to be provided by the staff to the agency's meeting announcement coordinator at least ten days in advance of the date of the meeting so that adequate notice can be made to the public.

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Public notice will be provided through the Weekly Compilation of Press Releases and posting in the NRC headquarter's Public Document Room, 2120 L street (Lower Level) NW., Washington, DC.

The public may obtain a schedule of agency staff meetings on a toll-free telephone recording at 800-952-9674 and on a toll-free electronic bulletin board at 800-952-9676.

2. Meetings which are scheduled for the next 60 calendar days will be announced to the public. Meeting announcements will include the date, time, and location of the meeting, as well as its purpose, the agency and outside organizations in attendance, and the name and telephone number of the agency contact for the meeting. Information about canceled, rescheduled, and open meetings schequled on short notice will be updated daily or as needed by its posti~g at the agency Public Document Room, on the telephone recording, and on the electronic bulletin board.

Dated at Rockville, MD, this /~ _:::. day of ~J/4~,?( I( 1994.

For the Nuclear Regulatory Commission.

Joh Act etary of the Commission.

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DOCKET NO. PR-MISC (58FR48080)

In the Matter of STAFF MEETINGS OPEN TO THE PUBLIC; PROPOSED POLICY STATEMENT DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT e 09/08/93 09/08/93 PROPOSED POLICY STATEMENT 10/20/93 10/15/93 /cOMMENT OF STATE OF NEW JERSEY (JILL LIPOTI, ASSISTANT DIRECTOR) ( 1) 11/12/93 11/09/93 Cort4ENT OF SOUTHERN NUCLEAR OPERATING CO.

(DAVE MOREY) ( 2) 11/15/93 11/10/93 COMMENT OF TUELECTRIC (WILLIAM J. CAHILL, JR.) ( 3) 11/15/93 11/10/93 COMMENT OF YANKEE ATOMIC ELECTRIC CO.

(DONALD W. EDWARDS, DIRECTOR) ( 4}

11/15/93 11/11/93 COMMENT OF Cort40NWEALTH EDISON (W.F. NAUGHTON) ( 5) 11/15193 11/15/93 /COMMENT OF FLORIDA POWER CORP.

(P.M. BEARD, JR. SEN. Y.P.) ( 6}

11/15/93 11/09/93 COMMENT OF GEORGIA POWER COMPANY (J. T. BECKHAM, JR.) ( 7) 11/15/93 11/15/93 /COMMENT OF NUMARC (RON SIMARD) ( 8) 11/16/93 11/15/93 cOMMENT OF AMERICAN MINING CONGRESS (ANTHONY J. THOMPSON) ( 9}

11/16/93 11/15/93 coMMENT OF DUKE POWER, FPC, NIAGARA MOHAWK NEU ETC (JOSEPH KNOTTS, JR.) ( 10) 11/17/93 11/14/93 COMMENT OF OCRE (SUSAN L. HIATT) ( 11) 11/19/93 11/15/93 v/COMMENT OF JACK R. NEWMAN ( 12) 11/22/93 11/19/93 COMMENT OF VIRGINIA POWER (M. L. BOWLING) ( 13) 11/26/93 11/24/93 COMMENT OF AMERICAN MINING CONGRESS (JAMES E. GILCREST) ( 14)

~~

AMERICAN MINING CONGRESS FOUNDED 1897 1920 N Street NW, Suite 300 Washington, DC 20036-1662 November 24, 1993 202/ 861-2800 Fax: 202/ 861-7535 Olftcers Chainnan: Allen Born Mr. Samuel J. Chilk Vice Chainnan and Chainnan, Finance Committee:

Secretary Richard de J. Osborne U.S. Nuclear Regulatory Commission Vice Chainnen: 11555 Rockville Pike Milton H. Ward

• Harry M. Conger M/S 16G15 Gordon R. Parker Thomas Moore Rockville, Maryland 20852 le B. Turner Barry G. McGrath Douglas C. Yeartey Re: NRC staff Meetings Open to the Public President: John A. Knebel Proposed Policy statement Secretary: Edward M. Green Treasurer: Clarence L. Smith

Dear Secretary Chilk:

Directors CaMn A. Campbell Jr., Chicago Harry M. Conger, San Francisco On September 14, 1993, the Nuclear Regulatory Milton H. Ward, Englewood CO Commission published a proposed policy statement on Allen Born, New York R. Gene Dewey, Los Angeles NRC staff-sponsored and conducted meetings. 58 Fed.

Richard de J. Osborne, New York Reg. 48,080-82. The proposed policy is to be issued Gordon R. Parker, Denver W. R. Stamler, Paris KY to the NRC staff as a management directive. In the M. Thomas Mo9re, Cleveland notice, the Commission invited comments on the Robert T. Spitz, Charlotte NC Arthur Brown, Coeur d'Alene ID policy and on specific concerns raised by the John D. Janak, Dallas American Mining Congress in a February 4, 1993 Wm. G. Mulligan, Woodcliff Lake NJ Billie B. Turner, Northbrook IL letter to Chairman Selin.

Dana S. Getman, Bangor Ml Burgess Winter, Tucson L. White-Thomson, Los Angeles AMC is a national trade association of mining

• en A. Barton, Peoria and mineral processing company whose membership Kar1 E. Elers, Houston Michel Schneider-Maunoury, New York encompasses: (1) Producers of most of the United Robert M. Smith, Toronto States' metals, uranium, coal and industrial and Marc F. Wray, Pittsburgh Robert P. Larkins, Houston agriculture minerals; (2) Manufacturers of mining Thomas W. Garges Jr., Indiana PA and mineral processing machinery, equipment and Anthony G. Fernandes, Denver Barry G. McGrath, Englewood CO supplies; and (3) Engineering and consulting firms Gerard E. Munera, Englewood CO and financial institutions that serve the mining Mer1e D. Wolfe, Knoxville Jerry K. Ellis, San Francisco industry.

Douglas C. Yeartey, Phoenix Bruce E. Grewcock, Omaha John M. Piecuch, Reston VA AMC supports public participation in the Robert C. Scharp, Oklahoma City regulatory process where reasonable, necessary and James A. Todd Jr., Birmingham John M. Willson, Vancouver BC appropriate. AMC believes that this proposed policy Jeffrey L. Zelms, St. Louis is generally responsive to the concerns expressed in R. Thomas Green Jr., Cleveland George A. Mealey, New Or1eans its February 4 letter regarding the preceding Nicholas P. Moros, Portland interim guidance on public meetings. As the Bobby E. Cooper, Salt Lake City Sir Ian MacGregor, New York t proposal notes, the goal of the policy is to provide N. T. Camicia, Greenwich t meaningful opportunities for the public to be Charles F. Barber, New York t Ralph E. Bailey, Stamford t informed of NRC activities "without unduly affecting

• Immediate Past Chairman open and candid discussions between licensees and t Honorary

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MAY 1 O 1994~

Acknowledged by card ..................- ......:::..

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the NRC staff or interfering with the staff's ability to exercise its regulatory and safety responsibilities without undue administrative burden." AMC believes that the proposed policy generally fulfills this intent, subject to certain modifications requested in the enclosed comments.

AMC commends the Commission for taking steps to clarify its public meetings policy and appreciates the careful attention that has been provided to AMC's concerns set forth in the February 4, 1993 letter. If you have any questions about AMC's comments, please contact me or Anthony J. Thompson of Perkins Coie (202) 628-6600. Thank you.

Respectfully submitted,

~ E.~~v/~

James E. Gilchrist' Vice President Enclosure

[09763-0004/DA933280 .019] 11/26/93

CO:MMENTS OF THE AMERICAN MINING CONGRESS ON THE NUCLEAR REGULATORY COMMISSION'S PROPOSED POUCY STATEMENT REGARDING STAFF MEETINGS OPEN TO THE PUBLIC I. INTRODUCTION On September 14, 1993, the Nuclear Regulatory Commission

("NRC") published a proposed policy statement and a request for comments regarding staff meetings open to the public. 1 58 Fed. Reg. 48,080. The proposed policy statement would establish general guidelines regarding the practice of making meetings involving NRC staff and licensees open to the public.

The American Mining Congress ("AMC") and its uranium fuel cycle members have a strong interest in NRC's meeting practices and believe that the proposed policy statement sets forth several useful principles. This policy must maintain the NRC's flexibility to conduct certain kinds of business outside the context of public meetings, if not, it will, in many cases, interfere with Commission functions and frustrate 1The comment period expired on November 15, 1993. The American Mining Congress (AMC) regrets that, through an oversight, it only became aware of the proposed policy and request for comment on November 15, 1993, the date the comment period expired. On November 15, 1993, AMC was granted an extension of time to file comments on this issue, as its uranium fuel cycle facility members deem the proposed policy statement to be extremely important. AMC appreciates the informal extension of time to file connnents granted by the NRC staff and apologizes for any inconvenience that the delayed filing of AMC's comments may cause the Commission.

[09763-0004/DA933280.016] 11/26/93

communications between NRC staff and licensees. In these comments, AMC sets forth its recommendations on how to improve the proposed policy statement.

AMC is a national trade association of mining and mineral processing companies whose membership encompasses: (1)

Producers of most of the United States' metals, uranium, coal and industrial and agriculture minerals; (2) Manufacturers of mining and mineral processing machinery, equipment and supplies; and; (3) Engineering and consulting firms and financial institutions that serve the mining industry.

AMC's membership includes companies involved in the uranium fuel cycle who are directly affected by this proposed policy statement.

II.

GENERAL COMMENT

S On February 4, 1993, on behalf of its fuel cycle facility members, AMC wrote to the Honorable Ivan Selin, Chairman of NRC, to object to interim guidance on public meetings issued by Region IV on September 16, 1992. See Attachment. In that letter, AMC raised a number of concerns regarding the then interim guidance document. These concerns are expressly noted in the current proposed policy statement. Id. at 48,082. AMC appreciates the consideration the NRC has already given to the issues raised in its February 4 letter, and these comments set forth additional concerns.

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AMC reiterates its support for public participation in the regulatory process where such involvement is reasonable, necessary and appropriate. As the NRC proposal notes, the goal of the policy statement is to provide meaningful opportunities for the public to be informed of NRC activities "without unduly affecting open and candid discussions between licensees and the NRC staff or interfering with the staff's ability to exercise its regulatory and safety responsibilities without undue administrative burden." Id. at 48,081. AMC strongly supports this goal, but believes it can be accomplished more effectively through a more carefully circumscribed open meetings policy, as discussed below.

III. SPECIFIC COMMENTS The proposed policy expressly distinguishes between a "planned, fo~al encounter" and "informal contacts." Id. A formal encounter is a "planned" public meeting between one or more NRC staff and one or more outside persons "with the express intent of discussing substantive issues that are directly associated with NRC's regulatory and safety responsibilities." Id. As AMC noted in its February 4 letter to Chairman Selin, because NRC's primary mission is its regulatory and safety responsibilities,~ discussions between NRC licensees and NRC staff can, in some sense, be said to be connected with "regulatory and safety responsibilities." However, as AMC understands the proposal,

[()C)763-0004/DA933280.016] 11/26/93

the phrase "directly associated with NRC's regulatory and safety responsibilities" is intended to address "specific NRC licensing or regulatory actions involving specific licensees."

Therefore, informal "opportunities" that become available, such as at a licensees' site or where a licensee official is attending an open meeting and discussions between licensees and NRC officials take place, would IlQt. be prohibited because they are not "planned" to discuss "specific NRC licensing or regulatory actions involving specific licensees." AMC believes that this kind of flexibility is necessary to maximize cost-effective communication between licensees and NRC staff on issues of mutual concern. AMC supports this aspect of the proposal if its interpretation is consistent with NRC's intent, if not, AMC requests clarification on this issue in the final policy statement.

The proposed policy discusses and clarifies what the Commission intends the term "substantive issues" to mean in conjunction with NRC and licensee meetings (i.e., substantive meetings)_. Non-substantive meetings would include training sessions, conferences, and association meetings where NRC staff and licensee officials participate. Obviously, at meetings of this type, there may be discussions of issues which could be termed substantive in relation to NRC's regulatory and safety responsibilities; however, they would not be directed at specific licensing or regulatory actions

[()9763-0004/DA933280.016] 11/26/93

involving specific licensees. AMC supports the exclusion for I

non-substantive meetings if its interpretation is consistent with NRC's intent, if not, AMC requests clarification of this issue in the final policy statement.

The proposal also provides a number of specific exemptions from the.requirement for notice to potential outside parties that would appear to provide NRC staff with

• appropriate discretion to make reasonable judgments about the necessity for such notice. AMC interprets the use of the word "preliminary" in paragraph C.1.f. as a modifier of the term "information" used later in that paragraph. This would apparently address AMC's concern regarding the importance of not establishing an open meetings policy that would have a "chilling" effect on licensee willingness to work with NRC staff to solve potential (or "preliminary") problems and to resolve technical and enforcement matters prior to their becoming major issues subject to full-blown decisional processes. As AMC indicated in its February 4 letter, in matters,as complex as a proposed reclamation plan approval, there are many issues which need to be discussed and thrashed out by NRC staff and licensees through direct, one-on-one conversations. Many such discussions will involve "preliminary" proposals or suggestions that are not appropriately subject to disclosure to outside parties. As the Commission notes, "this exception is to ensure that

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licensees and applicants will not be inhibited in bringing to the Commission information that is preliminary in nature or is not verified or sufficiently analyzed to draw firm conclusions." It also ensures that discussions about "the potential implications of this information occur candidly and openly without fear that they may be misunderstood by the public as fact or as final conclusions." ~ at 48,082. AMC supports this approach if its interpretation is consistent with NRC's intent, if not, AMC requests clarification of this issue in the final policy statement.

The proposed policy states that it is not intended to "apply to or supersede any existing law, rule, or regulation that addresses public attendance at a specific type of meeting . .lg. It also specifically references 10 C.F.R. Part 2 as such a rule. In its February 4, 1993 letter, AMC expressed strong concern that this policy would conflict with the requirement of 10 C.F.R. S 2.102 concerning informal staff/licensee conferences. AMC interprets the NRC's statement in this proposal to mean that 10 C.F.R. S 2.102 and all similar requirements override this policy statement. AMC supports this approach if its interpretation is consistent with NRC's intent, if not, AMC requests clarification of this issue in the final policy statement.

The proposal has clarified the intent of the exemption contained in paragraph C.1.g. that a meeting where the subject

[09763-0004/DA933280.016] 11/26/93

matter has no "direct, substantive connection to a specific NRC regulatory decision or action" is not an opeh meeting.

The purpose of this approach is to ensure that "routine administrative matters relating to regulatory activities can be carried out efficiently." Id. As the proposal notes, meetings that discuss the status of actions, schedules for action, applicant's activities, or general issues not related to a decision or action before the staff would not be open meetings. AMC supports this interpretation.

Finally, the final exemption contained in paragraph C.1.h. addresses situations where the "administrative burden associated with public attendance" could substantially interfere with NRC's execution of its responsibilities. In particular, this exemption is designed to ensure that the staff has discretion "to have a needed meeting on short notice where adequate public notice cannot be provided without placing an undue burden on the agency." Id.

Such a meeting may be necessary to address an urgent issue, to respond to an opportunity that presents itself on short notice and that could be of benefit to NRC, or where the location involved is such that it is simply not possible to provide notice for public meeting. The exemption would also address situations where a specific time or date for a public notice cannot be established with sufficient precision to permit adequate notice, such as an exit meeting at the conclusion of

[09763-0004/DA933280.016] 11/26/93

a routine inspection Or where the agency is responding to a significant safety or safeguards event. This flexibility is needed because an open meeting would put an undue burden on inspectors at a time when they are focused on understanding and resolving potentially significant problems. AMC strongly supports this approach, and, in particular, the statement that "NRC inspections are not public meetings under this policy."

Although the proposal sets out specific exemptions, the Commission reserves unto itself blanket exemption authority for what, at this point, could be termed "unforeseen circumstances." The proposal indicates that the meeting policy is wholly a matter of NRC discretion that can and will be departed from as NRC convenience and the necessity of circumstances may dictate. AMC supports the Commission's specific reservation of authority to abrogate this policy for reasons it deems necessary and appropriate.

Finally, AMC supports the ten {10) day notice requirement in paragraph D. AMC believes that the ten (10) day requirement is an adequate time frame to provide public notice.

AMC, while generally supporting the above-noted revisions and amplifications in the proposed policy, continues to have some concerns regarding the proposed policy. These concerns are as follows:

[09763-0004/DA933280.016] 11/26/93

1. The NRC has not expressly defined its view of the public's role at open meetings. Based on past discussions with NRC staff on this subject, it is AMC's understanding that the public would be permitted to observe at such meetings, but would not be allowed to actively participate in the meetings.

The public would be permitted to ask questions of NRC staff at the conclusion of the meeting and of the licensee Jm.t Q!1ly if the licensee is willing to engage in a dialogue with the outside party. AMC believes that NRC should address some such constraints on public participation in the final policy statement.

2. NRC does not address the issue of increased fees payable by licensees as a result of a meeting that in some way is driven by a public request to observe and which otherwise would not have been incurred. AMC believes that any such increased fees should be chargeable to NRC. This is because it is essentially the Commission's decision to implement the policy that would cause any such increased fees.

The Commission is well aware that AMC's fuel cycle facility members have grave concerns regarding the NRC fee system. These concerns have been expressed on numerous occasions in written comments in NRC fee rulemaking proceedings. AMC understands that the Commission is preparing a report to Congress regarding potential legislative changes associated with the NRC fee structure. AMC requests that this

[09763-0004/DA933280.016] 11/26/93

issue be addressed in that report -- that is, where the NRC, for policy reasons or its own convenience, makes a decision that would increase licensee fees, NRC could not charge licensees for such increases in fees.

3. AMC's licensee members have a significant interest in and some grave concerns about NRC's ability to fulfill its regulatory responsibilities efficiently and cost-effectively.

• These concerns have been substantially heightened since the Commission's decision to close the Uranium Recovery Field Office (URFO) and the subsequent reorganization of NRC staff responsibilities, with enforcement to be handled by Region IV in Dallas and licensing to be handled at NRC headquarters.

AMC would like to stress the importance of flexibility under this policy with respect to maximizing resources (such as when a licensee is in Washington, D.C. or Dallas or in circumstances where an NRC official is visiting a licensee site) in order to further the necessary ongoing regulatory dialogue. NRC must not be held hostage to this policy, particularly, in light of the increased distance and cost associated with the reorganization of licensing and enforcement of uranium recovery facilities. This reorganization will, at least for the immediate future, make it especially important for licensees and NRC staff to confer informally.

[0')763-0004/DA933280.016] 11/26/93

CONCLUSION In general terms, AMC supports the proposed policy statement. The final statement should clarify the issues addressed in these comments, and the NRC must be vigilant in implementing this policy to ensure that the necessary flexibility is provided to allow NRC staff and licensee officials to maintain open, direct and candid communications .

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5000 Dominion Boulevard Glen Allen, Virginia 23060 November 19, 1993

• 93 NOV 22 P2 :19 f-

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• VIRGINIA POWER Secretary Serial No.93-696 U. S. Nuclear Regulatory Commission NL&P/RBP Washington, D. C. 20555 Attn: Docketing and Service Branch Gentlemen:

COMMENTS ON PROPOSED POLICY STATEMENT STAFF MEETINGS OPEN TO THE PUBLIC Virginia Power has reviewed the Nuclear Regulatory Commission (NRC) proposed policy statement published in the Federal Register dated September 14, 1993. The policy statement presents the guidance which the NRC staff proposes to follow in opening meetings between NRC staff and one or more outside persons to public observation.

We endorse the Nuclear Management and Resources Council (NUMARC) comments sent separately to the NRC on this issue. We believe that the policy states a reasonable and fair approach to opening NRC staff meetings to the public.

Very truly yours,

/µ/;1~

M. L. Bowling, Manager Nuclear Licensing and Programs MAY 1 O 1994

• Acknowledged by cardN....................,.Mt!III.

cc: Mr. Ron Simard Director, Industry Relations and Administration Division Nuclear Management and Resources Council 1776 Eye Street, N. W.

Suite 300 Washington, D.C. 20006-3706

NEW MAN & H O L TZINGER, P. C .

ATTORNEYS AT LAW 1615 L STREET, N . W .

WASHINGTON, D . C . 20036 - 5610 TELEPHONE : (202) 955*6600 FAX: (202) 872-0581 November 15, 1993 Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, o.c. 20555 Re: Comments Regarding Open Meetings Policy

Dear Mr. Chilk:

In the Federal Register notice of September 14, 1993 (58 Fed. Reg. 48080), the Nuclear Regulatory Commission (NRC) requested comments regarding the revision of its 1978 open meeting policy. In response to the NRC's request, we are pleased to submit the enclosed "Comments Regarding Open Meetings Policy."

As discussed in the enclosed comments, meetings should be open to the public only if substantial public interest is expressed, thus avoiding possible impediments to the efficient conduct of the NRC's regulatory process. Moreover, whatever policy is adopted should be on a two-year trial basis, similar to the current two-year experiment on open enforcement conferences.

Lessons learned during this two-year trial period should prove helpful to the NRC in determining the features of a final policy statement on open meetings. Finally, clarifications should be provided on some important details, such as the scope of the public's ability to "observe."

Sincerely,

/jeh Enclosure MAY 1 0 1994~

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NEWMAN & HOLTZ INGER, p C.

Comments Regarding Open Meetings Policy In its Federal Register notice of September 14, 1993 (58 Fed. Reg. 48080), the Nuclear Regulatory Commission (NRC) announced that it was initiating a review of its open meeting policy. The proposed policy statement would supersede the policy statement issued by the NRC in 1978 which was limited to open meetings with the NRC technical staff during reviews of domestic license or permit applications. 1/

Our views on and suggested changes to the proposed policy statement are expressed below.

1. Limit Application of Proposed Policy NRC's stated purpose for revising its open meeting policy is to provide further meaningful opportunities for the public to be informed of NRC activities. The proposal indicates that this goal may be achieved without unduly affecting open and candid discussions between licensees and the NRC Staff or interfering with the Staff's ability to exercise its regulatory and safety responsibilities without undue administrative burden.

Under the proposed policy, meetings between the NRC Staff and licensees would be open as a general rule. The determination as to whether a meeting should be open for public attendance would depend primarily on the subject matter to be discussed. Non-public meetings might be held when "the administrative burden associated with public attendance at the meeting could result in substantially interfering with the NRC staff's execution of its safety and regulatory responsibilities."

The proposed policy statement also states that the policy is wholly a matter of NRC discretion and can be and will be departed from as NRC convenience and necessity may dictate.

Although the policy statement attempts to retain significant discretion in the agency, it is apparent that the NRC will be committing itself to providing advance notice and to opening meetings with licensees on a much broader scale than under the 1978 policy.

1/ The NRC stated that the proposed policy statement is similar to an interim policy that has been used by NRR, AEOD and NRC regional offices since September of 1992, except that several exemptions have been clarified. It is not clear whether this informal "interim policy" has been routinely implemented. We suggest below that whatever policy is decided upon by the NRC be implemented on a trial basis for two years before final adoption.

NEWMAN & HOLTZINGER, P. C.

The requirement that an open meeting be scheduled at least ten days in advance can have a significant impact on the conduct of the day-to-day regulatory relationship. Just scheduling a meeting may become difficult in some instances if the NRC Staff is reluctant to deviate from the "normal" ten-day advance notice. The possibility of having to hold an open meeting on certain subjects can also adversely affect the frequency and structure of meetings. For example, de fining the subject of a meeting may become complicated if the matters to be discussed fall into the gray area between open and closed meetings.

The presence of third parties, who may misunderstand or take the participants' remarks out of context, may have unintended, adverse consequences. First, if it is determined that a meeting will be open, NRC and licensee resources will unnecessarily be devoted to preparing for such meetings since participants will inevitabl y feel that they need to deport themselves differently because of the presence of third parties.

Second, discussion at an open meeting will not be as free and candid because participants will necessarily be more cautious in their remarks. This is likely to occur because the participants will be concerned that third parties might misunderstand or mischaracterize partic ipants' r emarks since they wi l l not possess the s ame knowledge of the subject and will not have the same working relationship as that developed between licensees and their NRC counterparts through previous interactions on the subject. Thus, overall, open meetings may impair interactions between licensees and the NRC that have developed over the years to the public's benefit. Finally, for all of the foregoing reasons, expanding open meetings results in unnecessary diversion of resources.

We suggest that the undesirable results could be minimized by applying the proposed policy (including its proposed limitations and exemptions) only if:

(1) local public interest has been previously expressed in having the NRC provide notice and open meetings with respect to a particular licensee, and then only with respect to those aspects of the license in which interest has been expressed; or (2) the NRC has reason to believe that a meeting is so significant that t here wil l be substantial public interest.

Since in the past no substantial public interest has been expressed in the vast majority of meetings with licensees, this NEWMAN & HOLTZINGER, P. C.

approach will avoid compromising the efficient conduct of the NRC's regulatory process under routine circumstances.

To the extent that the NRC decides to revise its existing open meeting policy, the revised policy should be implemented on a two-year trial basis to determine: (a) whether open meetings affect the Staff's ability to conduct meaningful meetings in an effective manner; (b) whether open meetings affect NRC-licensee interactions, including 9andid and frank discussions; and (c) the extent of public interest in open meetings.

The concept of using the policy on a trial basis would not be inconsistent with the ultimate goal of the proposed policy. Moreover, it would give the NRC an opportunity to gather information and gain experience needed to decide upon the desirable features of a final policy statement on open meetings.

Therefore, we urge the NRC to implement the policy on a two-year trial basis and issue a final policy only after an assessment in accordance with the above criteria, similar to the NRC's two-year trial run on its 1992 open enforcement conference pol icy.

2. Clarification of Details The proposed policy should be clarified as to the following important details. When a possible meeting is being considered by the Staff and a licensee, if the Staff believes that the subject matter requires an open meeting, the licensee should be notified in advance.

The policy should clearly state that the public is limited to "observing" open meetings, as opposed to participating in them. Less intrusive methods of participation should also be considered, such as written submittals to communicate the concerns of interested parties.

Although there is no language in the policy directly on point, we do not believe that the NRC intended to a l low active public participation in open meetings. As previously noted, the purpose of revising the open meeting policy is to provide the public with more meaningful opportunities to be informed of NRC activities. This can be accomplished through observation of the proceedings which does not necessarily involve active participation. This view is consistent with both the 1978 open meeting and the 1992 open enforcement conference policies. Under both these policies, public involvement is limited to observation. The open enforcement conference policy explicitly provides that "(w]hile the enforcement conference is open for NEWMAN & flOLTZINGER, P. C.

public observat i on, it is not open for public participation. "

Therefore, we urge the NRC to explicitly adopt language on this point consistent with the enforcement conference policy.

We also urge that the NRC not permit videotaping or recording of open meetings. These ac t ivities tend to be distracting and inhi bit open and candid discussions between the NRC Staff and licensees.

We appreciate the opportunity to present these views.

DOCKET NUMBER PR PROPOSED RULE...:...:.:::...i....:.-~ -

November 14, 1993

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COMMENTS OF OHIO CITIZENS FOR RESPONSIB4'c*ilN~A~/ rt~~ (OCRE") ON "STAFF MEETINGS OPEN TO THE PUBLIC; PROPOSE1i"PbLICY STATEMENT,"

58 FED. REG. 48080 (SEPTEMBER 14, 1993)

OCRE generally supports this proposed policy statement, particu-larly that part which will establish a toll-free telephone re-cording and toll-free electronic bulletin board; however, OCRE believes that further clarification is necessary to ensure that open meetings will be the rule rather than the exception.

OCRE is concerned that the policy does not apply to meetings between the NRC staff and state governments, including Agreement States. OCRE believes that the policy should apply to such meetings.

Items 2. (f), (g), and (h) under C. Exemptions, are too broad, vague, and subjective. They could easily be interpreted in a manner that could result in closing virtually all NRC staff meetings. For example, item (g), in accordance with the discus-sion given in the Federal Register notice, could result in the closing of conferences such as the Regulatory Information Confer-ence and the annual Water Reactor Safety Information Meeting.

After all, such meetings have "no direct, substantive connection to a specific NRC regulatory decision or action. 11 Item (h) is likewise particularly susceptible to abuse. After all, any public participation entails an administrative burden which consumes NRC resources which might instead be devoted to the NRC staff's safety and regulatory responsibilities.

- In order for this policy statement to be consistent with the NRC's "Principles of Good Regulation," in particular, that principle which states that "nuclear regulation is the public's business," OCRE would propose an additional paragraph 4. to be added to C. Exemptions:

4. As a general principle, meetings between the NRC staff and outside parties are expected to be open. Exceptions are expect-ed to be rare and to represent compelling circumstances. These exemptions shall be interpreted in a manner that is most favora-ble to public participation.

With regard to the concerns of the American Mining Congress, quite simply, they can be disposed of by one sentence: This is America.

Respectfully submitted,

~/~

Susan L. Hiatt Director, OCRE 8275 Munson Road Mentor, OH 44060-2406 (216) 255-3158 Acknowledged by card .....~~:... ~..~.,,;;.;,~~.....

• c. NUCLEAR REGULATORY COMMISSION DOCKET!, G & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistics Postmark Date It/I 5/'tJ 7 l=e;,. J-o ""' /I/,"-( I qJ Copies Receil/ed L '

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FREDERICK H. WINSlON (1853-1886) 1400 L STREET, N.W. CHICAGO OFFICE 35 WEST WACKER DRIVE SILAS H. STRAWN (1891-1946) WASHINGTON, D.C. 20005-3502 CHICAGO, ILLINOIS 60601 (312) 558-5600 (202) 371-5700 NEW YORK OFFICE FACSIMILE (202) 371-5950 DOCKETED November 15, Mr. Samuel J. Chilk DOCKETING &

Secretary of the Commission SERVICE BRANCH SECY-NRC U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Branch Re: Comments on Proposed Policy Statement to Open Staff Meetings to the Public - 58 Fed. Reg. 48.080 (1 993)

Dear Sir:

On September 14, 1993, the Nuclear Regulatory Commission published notice of and invited public comments regarding a proposed policy statement to open more NRC Staff meetings to the public. See 58 Fed. Reg. 48,080 (1993). On behalf of the power reactor licensees listed in the margin,Y we respectfully submit the following comments.

Overview We recognize the importance of a regulatory policy that generally ensures openness with t he public and strongly support such a policy .Y We are concerned, however, that the policy as delineated in the proposal may result in only a marginal increase in openness with the public at the expense of significantly reduced quality of communication with the regulated licensees. The reduction in open communicat ions with licensees would stem from the chilling effect that this policy statement might have on Staff-Y Duke Power Company (joins in the Recommendations Section only, see footnote on page 7), Florida Power Corporation, Niagara Mohawk Power Corporation, Northeast Utilities, Public Service Electric and Gas Company, Rochester Gas and Electric Corporation, Texas Utilities Electric, and Washington Public Power Supply System (joins Recommendations Section only, see footnote on page 7).

'l:./ It is our understanding that the proposed Policy Statement does not apply to enforcement conferences which are being addressed under a separate NRC policy. In general, it is our position that meetings relating to investigative and enforcement matters should be closed.

MAY 1 O 1994, Acknowledged by card .........,u 0

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Open Meeting Comments November 15, 1993 Page 2 licensee conununications. Such a chilling effect could establish a regulatory climate that inhibits the free exchange of information with the concomitant potential to encumber significantly the regulatory process and ultimately to affect operational safety.

One of the more frequent criticisms of the day-to-day regulatory process for power reactors in the U.S. is that it is excessively formal, adversarial and legalistic in comparison to the more informal and collegial process in other nations. Canada, for example, makes use of informal, "off the record" communications to promote the sharing of technical information and ideas. It is understandable that the present NRC policy, dating from 1978, opens meetings to parties to pending licensing or license amendment proceedings.¥ But when almost all informal meetings are opened to the media and the public, there is a tendency for licensees to be more guarded and less open, and for regulators to posture as severe and closed-minded, rather than being open to the exploration of alternative technical approaches.

Our review of existing Staff documents indicates that the Staff is aware of the competing and sometimes conflicting considerations that arise when one attempts to assure effective regulation whil-e maximizing openness. NRC apparently has attempted to achieve a balance of the competing considerations through the final three exceptions provided in the proposed policy statement.

58 Fed. Reg. 48081. These three exceptions would exempt meetings that disclose preliminary unverified information, lack direct connection to a specific regulatory decision or action, or create a substantial administrative burden by providing notice or opening them to the public.

We support what we understand to be the concept behind these three exceptions. We believe, however, that achieving day-to-day workability will require maintaining the basic policy position that meetings between the NRC Staff and licensees that do not relate to initial licensing, license (including technical specification) amendments or other pending proceedings (such as

§2. 206 petitions) , should remain closed to the public unless opened for good cause.

'J.J Several Commissioners including the Chairman endorsed on their response and vote sheets (dated June 1, 1993) submitted on the subject of "SECY-93-034, Agency Policy Concerning Public Meetings Held by the Staff," the assessment that the proposed policy statement is a substantial extension of the NRC' s currently published open staff meeting policy.

Open Meeting Cormnents November 15, 1993 Page 3 Our comments recommend that one of two alternative policies be adopted. Our preferred alternative is to reaffirm the 1978 policy of opening staff/licensee meetings to parties in pending proceedings, but leave informal meetings presumptively closed. The other alternative is to follow the proposed policy of presumptively open meetings, but elaborate on the exceptions. In that regard, we recommend that two specific types of meetings in addition to those listed in the Statement of Considerations and Handbook 3.5, remain closed to the public, and that all forms of telephone or video-conference calls also remain closed in order to facilitate spontaneous and short-notice conferences and open lines of communication. We also provide some recommended changes to the definition of public meeting to clarify the policy's intent and to forestall the likelihood of future misinterpretation or reinterpretation of the definition. Finally, we support resolution of the concerns raised by the American Mining Congress as expressed on page 48,082 of the Federal Register Notice.

Discussion Page 48,081 of the above-cited Federal Register Notice states that the NRC has a "longstanding practice of providing the public with the fullest information practicable" while "balancing the need for the NRC staff to exercise its regulatory and safety responsibilities without undue administrative burden." This NRC practice is expressed in the current and mc;,re limited Policy Statement on open meetings found in 43 Fed. Reg. 28,058 (1978).

The policy statement appears to apply only to applications for licenses or permits or amendments to either. Specifically, it provides that "[a]ll meetings conducted by the NRC technical staff as part of its review of a particular domestic license or permit application (includin°g an application for an amendment to a license or permit) will be open to attendance by all parties or petitioners for leave to intervene in the case." 43 Fed. Reg. 28,058. That policy by its terms does not extend to the general public or the cormnunications media.

The Staff has sought to maintain a balance between openness and administrative burden for the increased number of meetings covered by the proposed policy statement oy (1) providing in the policy statement or statement of considerations and associated management directive a list of meetings not normally open to the general public in order to facilitate prompt, spontaneous, open connnunications; and (2) emphasizing that" [t]his policy is wholly a matter of NRC discretion and can be and will be departed from as NRC convenience and necessity may dictate." 58 Fed. Reg. 48,081. This puts the NRC Staff .in the unfortunate

Open Meeting Comments November 15, 1993 Page 4 position of having to omit notice and close meetings, when the presumption (consistent with the public participation provisions of the Atomic Energy Act) should be that meetings that are not part of a pending proceeding are closed, but may be opened to the public when there is good reason to do so.

The Cormnission already recognizes that good communications with the industry are as important as openness with the public. This is indicated in the Commission's Announcement No.

6, "Principles of Good Regulation" (January 17, 1991) . In discussing the regulatory principle of openness, the Announcement states that " [o] pen channels must be maintained with Congress, other government agencies, licensees, and the public, as well as the international nuclear community." (Emphasis added.) What is not spelled out in this statement is that the mutual interest in open communications between the NRC Staff, licensees and the public, while overlapping in such shared areas of concern as ensuring public access to the process leading to substantive decisions regarding the public health and safety, are divergent i~

other ways that are particular to a given group. To the extent that such interests diverge, the Staff policy of openness must balance these different interests to optimally serve all groups.ii Current practice indicates the NRC Staff recognizes that achieving such a balance of interests will occasionally place some limits on what information is released to the public and when. For example, it has been NRC policy that INPO reports voluntarily submitted to NRC are not generally released to the public.~ Our understanding is that the withholding of such information is based on recognition of the importance of critical self-evaluation by the nuclear industry, the contribution this voluntarily provided Y The concept of balancing interests is discussed in 10 C.F.R.

§ 2.790, "Public Inspections, Exemptions, Requests for Withholding," in the_ context of availability of official records. Section 2.790(a) states that decisions for nondisclosure must reflect "a balancing of the interests of the person or agency urging nondisclosure and the public interest in disclosure." However, NRC records are presumptively open; as we have urged above, meetings should be presumptively closed, unless involving a licensing or amendment proceeding or opened for good cause.

~ ~ Critical Mass Energy Project v, NRC, 975 F.2d 871 (D.C.

Cir. 1992), cert, denied, u. s. , 61 u.s.L.W. 3647 (U.S. March 22, 1993).

Open Meeting Cormnents November 15, 1993 Page 5 information makes to Staff efficiency and effectiveness, and on preserving the candor of such reports by removing the risk that they might become public. In addition, the Staff itself regularly withholds information from the public and the industry that it deems to be predecisional. (Such information later may be released following final action.) Finally, information provided to the NRC from international sources is sometimes withheld from the public in order to ensure the free and uninhibited nature of such exchange~

of information. In the latter connection, we believe that ensuring the free and uninhibited flow of information between licensee and regulator is at least as important as preserving sources of information regarding nuclear safety and regulation in other countries. Many of the same considerations that support these limitations on release of information to the public may apply to public access to certain types of meetings between the Staff and licensees that apparently will be opened to the public under the proposed policy.

A consideration that may be equally as important as the balancing of competing interests is the broader issue of promoting a positive regulatory climate. This was attested to by the Inspector General for Nuclear Safety at Electricite de France, Pierre Tanguy, in his annual report for 1989. He commented there that to ascribe the success of the French nuclear program to people and companies "is to forget too soon the importance of the favorable . . . regulatory environment within which our program could develop." He commented further on what he described as the general recognition that an excessively prescriptive and formalistic, albett well-intentioned, approach to regulation in the U.S. bears a large part of the responsibility for the decline of the American nuclear program. It is our contention that the chilling effect on communications between the NRC and licensees that this proposed policy statement could well have may degrade the desired open lines of conmrunication between regulators and regulated.

The importance of open communications between the Staff and licensees is also suggested by some of the conclusions, in a somewhat different context, of the Kemeny Conunission's Report on the accident at Three Mile Island.21 In the overview of the accident, that Presidential Commission stated that "management problems have been made much harder by adoption of Strict rules that prohibit the commissioners from talking with some of their key

§J "Report of the President's Cormnission on the Accident at Three Mile Island," (October, 1979), John G. Kemeny, Chairman.

Open Meeting Conunents November 15, 1993 Page 6 staff," and that "major offices within the NRC operate independently with little evidence of exchange of information or experience. 11 While these corrrrnents are made in the specific context of intraagency communications, the underlying principle would seem also to apply to communications with the regulated industry. It appears that the proposed policy statement, while not in so many words establishing limitations on connnunications between the Staff and nuclear licensees, has the potential to lead to the same result, particularly given the requirement to provide some advance notice of meetings, thus ruling out spontaneous meetings.

It is our view_ that one of the most efficient and expeditious ways to address regulatory issues is at one-on-one or one-on-few meetings involving middle level personnel from the Staff and the .licensee. If such meetings must be noticed in advance and are generally opened to the public, we are concerned that attendees will be less likely to negotiate corrrrnitments and reasonable schedules for the resolution of issues, and less likely to state candidly the facts of a situation or opinions regarding problems and solutions, where those facts or opinions could be taken out of context and twisted by public attendees who may be pursuing their own agendas.

In view of these perceived problems with opening up more Staff/licensee meetings to the general public, the adoption of this policy statement may invoke the law of unintended results ( ~ ,

the cure is worse than the disease), especially when there appears to be no problem with the present policy warranting solution.

Instead of increasing public appreciation that there are high-minded licensees and tough, dedicated regulators, it effectively could result in formalizing and ritualizing such meetings, depriving them of debate and disagreement. Moreover, licensees would have an incentive to modify the form of their meetings with the Staff to adapt to the various exceptions to the policy or to "meet" in potentially less efficient ways not covered by the policy.

It appears that the Staff has been sensitive to some of the issues that may result from its change in position on this policy issue and has sought to address them by the last three exceptions noted in the Federal Register Notice. 58 Fed. Reg.

48,081. These three exceptions would exempt meetings that disclose preliminary unverified information, lack direct connection to specific regulatory decisions, or where providing advance notice or opening a meeting would create an administrative burden substantially interfering with the Staff's execution of its regulatory responsibilities.

Open Meeting Comments November 15, 1993 Page 7 Several concerns arise in connection with these exceptions. One concern is that some of the exceptions lack specificity and thus their interpretation may vary significantly with time and changing personnel. Another is that, since opening meetings is presumptive, and some judgment would be involved in interpretation of the policy, a Staff member might tend to err on the side of seldom, if ever, closing meetings in order to avoid making mistakes in judgment or appearing ever to exclude the public contrary to the image the agency wants to project.

Recommendations The above discussion indicates some of the implications that the proposed changes to the Staff's policy on openness might have. Accordingly, we provide the following alternative suggestions of possible ways in which the proposed policy statement might be modified to minimize chilling effects on communications between the Staff and licensees. Of course, Handbook 3. 5 should be modified as necessary to reflect the final form of the policy statement.

Modifications to the Final Three Exce,ptions Our preferred alternative recommendation is that the present policy on opening meetings be retained, so that meetings involving initial licensing or license amendments would be open to parties and petitioners to intervene. If the Commission is determined to have a presumption of open meetings, the final three exceptions as summarized above need to be refined to give effect to the intent to preserve flexibility for NRC to best carry out its responsibilities without being unduly inhibited by the expanded openness policy. In view of the particular importance of these three exceptions, we recommend the following modifications.Y Y Duke Power Company and Washington Public Power Supply System support the openness concept as expressed in the proposed Policy Statement but are concerned that it interjects another procedural layer of notification for certain types of meetings. Accordingly, Duke and WPPSS join in the modifications to the proposed policy suggested in the Recommendations Section of the comments but not in the balance.

Open Meeting Comments November 15, 1993 Page 8 Exception f. Exception f. exempts a meeting that:

Could result in the inappropriate disclosure and dissemination of preliminary, unverified information.

This exception appears to parallel for licensee information what is provided by exemption 5 of Part II ("Records Exempt From Disclosure") of NRC Management Directive 3.1, "Freedom of Information Act." Exemption 5 covers interagency and intraagency memoranda and letters and specifically applies to drafts of documents and to advice opinions and recommendations given during a deliberative process.Y However, the application to licensee (or vendor) information in addition to government information is not explicit. Accordingly, we recommend that Exception f. be rephrased to be more direct and inclusive, incorporating examples such as discussion of forthcoming or recently submitted reports under 10 C.F.R. §50.73.

Exception g. Exception g exempts a meeting that:

Has no direct, subs tan ti ve connection to a specific NRC regulatory decision or action.

After the final word "action," we recormnend adding the phrase "such as license or Technical Specification amendments." This change would clarify and limit what is intended while maintaining the ability to have informal non-public meetings to discuss matters not involving regulatory requirements (such as meetings relating to voluntary commitments by licensees).

Exception h. Exception h. exempts giving notice of and opening a meeting when:

The administrative burden associated with public attendance at the meeting could result W A similar concept is also generally alluded to in NUREG/BR-0073, Rev. 1, "Project Manager's Handbook" (March 1989).

Section 3.6.1 of the Handbook states that "release of preliminary information prematurely can become a serious problem at the time of hearings or other formal proceedings."

A decision not to open to the public certain Staff-licensee meetings based on the concept of withholding such preliminary information would appear to be reasonable and would improve "early warning" exchanges and the free flow of information.

Open Meeting Comments November 15, 1993 Page 9 in substantially interfering with the NRC staff's execution of its safety and regulatory responsibilities.

We recommend deleting t'he phrase "result in substantially interfering" and replacing it with the word "interfere." This would increase Staff flexibility by allowing the threshold level of interference to be "wholly a matter of NRC discretion," as the NRC indicated in the "Introduction" to the Proposed Policy Statement.

58 Fed. Reg. 48,081.

Additional Types of Meetings Closed to the Public There are two specific types of informal meetings that licensees consider to be especially valuable in maintaining frank, open and efficient communications with the Staff. It is recommended that, in view of the particular value of these meetings, the following types of meetings be added to the Statement of Considerations and Ilandbook 3.5 as meetings that are specifically closed to the public.

The first is the informal meeting between the NRC' s project manager and a single or several licensee representatives, often occurring at short notice on a "drop-in" basis at NRC headquarters. Such meetings generally (but not exclusively) involve such things as updates on existing issues (such as responses to Generic Letters and Bulletins) and associated scheduling matters.

In addition, this type of meeting appears to be similar in some key respects to the "Daily Resident Inspector Status-of-Facility" meeting that is currently treated as closed by Handbook 3.5. Handbook 3.5 at 6. Justification for leaving this type of meeting closed similarly would be based on avoiding interference with Staff performance of its regulatory duties, i.e., the loss of open lines of informal communications.

A second type of meeting that we specifically recommend remain closed to the public is the courtesy meeting by senior utility executives (and accompanying utility staff members as applicable) with senior managers of the NRC headquarters Staff.

This type of meeting is almost identical to the "Drop-in Meetings or Similar Management Meetings" that are currently listed as closed in Handbook 3.5, but which appear to be limited to meetings at the Regional off ices. Handbook 3. 5 at 7. This type of meeting easily could be included in Handbook 3.5 by modifying the first sentence of the description of the "drop-in" meeting referred to above. The

Open Meeting Comments November 15, 1993 Page 10 modifications would consist of (1) inserting after "executives" the phrase "and accompanying utility staff members as applicable;" (2) inserting "NRC" before the word "managers;" and (3) deleting the remainder of the first sentence after the word "managers." The same justification for excluding such meetings would be applicable in that they usually are of a general nature and unlikely to result in substantive regulatory decisions or action, and further, that leaving them private promotes the free flow of information.

A point of contention that might arise in assuring that the additional meetings noted remain closed to the public is that there may be occasional instances when more substantive issues are raised at such meetings. For such instances, public access to any decisions that might occur and the information on which they are based could be assured by establishing the requirement that minutes be prepared for release to the public for any such meetings that give rise to substantive regulatory decisions. In many if not most cases, public access to this type of information is already provided by the provisions of NUREG/BR-0073, Rev. 1, "Project Manager's Handbook" (March, 1989). Section 3.2.1 of the Handbook states on page 3-4 that:

[i]f the information obtained from the licensee during a telephone conversation or a meeting is to be used as part of the basis for the action under consideration, the licensee must confirm the information in writing before completing the action.

Thus, such information would be on the docket and in the public domain.

Excluding All Forms of Electronic Communications conferences An additional concern that we believe should be specifically addressed is the potential applicability of the proposed policy to meetings using electronic communications systems. This would of course encompass telephone calls, especially conference calls and video-conferencing. While it does not appear that the Staff currently intends to include such electronic conferences in the proposed definition of public meeting, their inclusion might be argued by some future interpretation, whether by the Staff or the public. Since this questi'on is almost certain to arise eventually, it is recommended that such calls, particularly telephone conference and video conference calls, be specifically identified as closed. This could be accomplished, for example, by slightly modifying the definition of "public meeting" as proposed below. Justification for

Open Meeting Cormnents November 15, 1993 Page 11 maintaining them closed to the public, if considered necessary, might be based on the need to promote candid and spontaneous exchanges of information and exchanges of views with licensees to facilitate the Staff's performance of its regulatory responsibilities. In addition,. the electronic or telephonic modes of communication generally do not involve substantive material

• related to regulatory decision-ma.king that is not otherwise docketed.

Definition of Public Meeting An additional element of the proposed policy statement that deserves special attention is the definition of public meeting. The proposed definition is as follows:

A public meeting is a planned, formal encounter between one or more NRC Staff members and one or more outside persons with the expressed intent of discussing substantive issues that are directly associated with NRC's regulatory and safety responsibilities.

To avoid ambiguity and overbroad interpretation of what constitutes a "public meeting," we recorrnnend that the term "encounter" be deleted from the definition, and the word "meeting" be used throughout. In addition, a definition or explanation of the words "planned" and "formal" would be helpful in clarifying the Staff's intent. For example, a "planned" meeting*could be defined as one scheduled to last for one hour or more. Further, the policy should not be extended to meetings regarding non-technical issues. Examples would include meetings of counsel for the NRC with counsel for licensees or others, meetings between licensee or insurance representatives and NRC staff whose responsibilities involve nuclear liability or property insurance or generic decommissioning issues, and meetings for the discussion of t];le proper assessment of license fees. "NRC Staff" should therefore be limited to "NRC technical staff". Finally, we recommend the addition of the adjectival phrase "face-to-face" to modify "encounter" or the word that replaces it. This would clearly indicate that a public meeting as defined for these purposes does not include telephone calls *or video-conferencing of any sort.

Such changes would be justified, as applicable, on the bases of providing early and open communications with licensees, avoiding undue administrative burden, or facilitating Staff performance of regulatory duties.

Open Meeting Comments November 15, 1993 Page 12 Conclusion We recognize the importance of a regulatory policy that ensures openness in appropriate circumstances and strongly support such a policy. We trust that following the recommendations we have provided will help ensure a free exchange of information between

• the Staff and licensees while maintaining the required balance in openness among the competing interests represented by the Staff, licensees and the public.

Fr.. .- .: :_::_;_: i~CL:: '\ l f c,..

PERKINSCOIE A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS #

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A 1r~ 8:,/\NC' SECY-NAC Mr. Samuel J. Chilk Secretary of the Commission I fn U.S. Nuclear Regulatory Commission Washington, o.c. 20555 Re: Staff Meetings Open to Public

Dear Mr. Chilk:

We regret we are unable to make the time deadline to file comments on the proposed policy statement regarding staff meetings open to the public. This matter is of great interest to the American Mining Congress and we hereby request an extention of time of ten (1 0) days to file comments. We apologize we inadvertent l y missed the filing deadline.

AJT:lc

[09901-9700/DA933190.060) MAY 1 0 1994 Acknowledged by card ............................._

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NUCLEAR MANAGEMENT AND RESOURCES COUNCIL 1776 Eye Street. NW

• Suite 300

• Washington. DC 20006-3706 (202) 872-1280 .,. *93 NOV 15 P4 :22 DOCK~T NU~8ER ~ :1=::

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- Mr. Samuel J. Chili<

Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATIE TIO : Docketing and Services Branch

SUBJECT:

Staff Meetings Open to the Public, Request for Comments 58 Fed. Reg. 48080 (September 14, 1993)

Dear Mr. Chili<:

The Nuclear Management and Resources Council (NUMARC)1 submits these comments on behalf of the nuclear power industry in response to the NRC request for public comments on the proposed policy statement on staff meetings open to the public, and the NRC request to comment on the concerns raised by the American Mining Congress (AMC).

In general, the policy states a reasonably well balanced approach reflecting the intent of the Commission to conduct all regulatory activities in an open and candid manner. It is our understanding that the proposed policy is not significantly different from cmTent NRC practices in reactor licensing activities.

We agree with the AMC comment that the policy definition is too broad and that the exemptions could be improved to provide licensees and the RC staff with a clearer 1

NUMARC is the organization of the nuclear power industry that is responsible for coordinating the combined efforts of all utilities licensed by the NRC to construct or operate nuclear power plants. and of other nuclear industry organizations, in all matters involving generic regulatory policy issues and on the regulatory aspects of generic operational and technical issues affecting the nuclear power industry. Every utility responsible for constructing or operating a commercial nuclear power plant in the United States is a member of NUMARC. In addition. NUMARC's members include major architect/engineering firms and all of the major nuclear steam supply system vendors.

Acknowledged by card ... ~~!..2..2~~:-;;.

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November 15, 1993 Page 2 understanding on how the policy will be implemented. In particular, Section C, Exemptions, needs to be clear since that is the part of the policy statement that will be used in interpreting and implementing the policy.

We believe that adding a specific exemption for meetings inside the protected area will make the intent of the policy more clear. Establishing access authorization or providing escort services for the public for admission to a protected area could be an undue burden on the licensee and may interfere with the plant staffs execution of its safety responsibilities. Therefore, we suggest adding the following exemption: "Meetings that involve a tour or other admission inside the protected area of a nuclear facility are normally exempt from this policy. Routine meetings with resident inspectors within the protected area are also exempt."

The following two exemptions are addressed elsewhere in the policy statement.

We suggest that these exemptions, reworded for clarity and for definition of scope, be transferred to Section C, Exemptions:

Meetings for the purpose of exchanging information, such as the status of actions, schedules for NRC action, an applicant's or licensee's activities, or general issues not directly related to a staff decision or action on license or technical specification amendments are exempt from this policy.

A meeting to discuss preliminary, unverified information is exempt from this policy.

We believe that the limitations that are implied by the examples of "drop-in" meetings are too restrictive. Short, informal meetings between NRC staff and licensee staff, without prior public notice, will provide for good communications between the licensee and the NRC staff. Although substantive issues are not generally discussed, NRC practice already requires that any information obtained from a licensee during a telephone conversation or a meeting that is to be used as part of the basis for an action under consideration be confirmed in writing before completing the action. We suggest the following exemption be added to Section C, Exemptions:

Informal meetings, such as those that might occur when an NRC staff member finds an opportunity while at a licensee's site to meet with a member of the licensee's staff or when a licensee staff member attending an open meeting at an NRC office has an opportunity for a short meeting with an NRC staff member, are exempt from this policy. Such informal meetings do not have the express intent of

Mr. Samuel J. Chilk November 15, 1993 Page 3 discussing substantive issues that are directly associated with the NRC's regulatory and safety responsibilities.

We believe that this policy should also clearly exempt telephone conversations, whether person-to-person calls or conference calls, and other forms of electronic communication, such as video-conferencing. These modes of communication, which are not readily amenable to public participation, are very important to assuring frank and open exchange of information between the NRC and the licensee. As noted above, the NRC requires that any information obtained from a licensee during a telephone conversation that is to be used as part of the basis for an action under consideration be confirmed in writing before completing the action.

We share the AMC's concerns that additional expenditures may be incurred to implement this policy without a commensurate benefit. Therefore, the NRC should conduct periodic assessments of this policy, for example, by surveying the staff to determine if there is a class of meetings, such as routine meetings between licensee managers and NRC project managers, in which the public is not participating. We recommend that, if such meetings are identified, they be added to examples of exempted meetings to reduce the burden on the NRC staff and the licensee to prepare for possible public participation. We further recommend that the NRC monitor open meetings under this policy to assure that these meetings are well organized and controlled to address specific licensing issues, and that the meetings are not being misused by outside parties to advance other agendas.

We appreciate the opportunity to comment and would be pleased to discuss these comments further with NRC staff.

Sincerely,

(,Lt-j ~L-? ~

Ron Simard Director, Industry Relations and Administration Division RLS/ALM:sd

PR '. *~

• l;l, Georgia Power Company DO~KET NUMBER ~

40 Inverness Center Parkway Post Office Box 1295 Birmingham, Alabama 35201 Telephone 205 877-7279 PROPOSED RULE (5"3' F--'fl ~ ~o e,,o 1 -i r~

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J. T. Beckham, Jr. "",,.... .~....., Georgia Power

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Vice President - Nuclear *93 NOV 15 /.iv -L:J Hatch Project the southern electnc system t:f !-

November 9, 19~,h: , I' fr.,.. I Docket Nos. 50-321 50-424 HL-4424 50-366 50-425 LCV-0209 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTENTION: Docketing and Service Branch Comments on Policy Statement "Staff Meetings Open to the Public"

{58 Federal Register 48080 of September 14, 1993}

Dear Mr. Chilk:

Georgia Power Company has reviewed the proposed policy statement "Staff Meetings Open to the Public," published in the Federal Register on September 14, 1993. In accordance with the request for comments, Georgia Power Company is in total agreement with the NUMARC comments which are to be provided to the NRC.

Should you have any questions, please advise.

Respectfully submitted,

~;B~

JDK/jdk MAY 1 0 1994 ----

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U.S. Nuclear Regulatory Commission Page Two November 9 , 1993 cc: Georgia Power Company C. K. McCoy, Vice President, Vogtl e Electric Generating Plant J. B. Beasley, General Manager - Vogtle Electric Generating Plant H. L. Sumner, Jr., General Manager - Plant Hatch U. s. Nuclear Regulatory Commission. Washington, DC K. N. Jabbour, Licensing Project Manager - Hatch D. S. Hood, Licensing Project Manager - Vogtle U. S. Nuclear Regulatory Commissi on , Region II S. D. Ebneter, Regional Administrator L. D. Wert, Senior Resident Inspector - Hatch B. R. Bon ser, Senior Resident In spector - Vogtle HL-4424 LCV-0209

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SECY-NRC /c Florida Power (I)

CORPORATION Crystal River Unit 3

. k e t No. 5C>-302 November 15, 1993 NL93-0072 Mr. Samuel J. Chilk Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Attn: Docketing and Service Branch

Subject:

Comments on Proposed Policy Statement to Open Staff Meetings to the Publ ic

Dear Sir:

Florida Power Corporation (FPC) is su bmitt ing these comments in response to the Federal Register notice on September 14, 1993 (58 FR 48080).

FPC does not really believe that the focus on public participation is in the best interest of any NRC licensee. The policy presumes that there are a class of potential participants who would have their concerns met if they were j ust more thoroughly informed. We know of no data to support such a conclusion. The only likely participants are well-informed opponents to nuclear power that have often expressed and demonstrated their wil l ingness to do whatever it takes to shut down nuclear power plants or "journalists" who have taken to a form of technical yellow journ alism that is equal ly counter-productive interpreting meetings and correspondence in such a manner as to catch the attention of potential readers rather than focussing on the facts.

GENERAL OFFICE: 3201 Thirty-fourth Street South

• P.O. Box 14042

• St. Petersburg, Florida 33733 * (813) 866-5151 A Florida Progress Company MA Acknowledged by card... y 1 O 1994! .::.::

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Mr. Samuel J. Chilk U.S. Nuclear Regulatory Commission November 15, 1993 NL93-0072 Page 2 FPC does not agree that the proposed policy is "consistent with current practices , " although what is meant by the phrase may not have changed dramaticall y. We frequently "stop by" and meet with our Project Manager or others as an add on to other meetings with the NRC. Such conversations are the backbone of our efforts to mai ntain open communication with the NRC. Public participation would be meaningless and counter-productive. Even now, the current policy makes routine interfaces to exchange information difficult. The focus in the policy should be limited to very formal exchanges where rather firm regulatory decisions are expected.

Open and frank communications between the NRC and licensees is necessary for a positive regulatory balance. Including the public in every meeting does not do that. FPC does not support the proposed policy.

Sincerely, P. M. Beard, Jr.

Senior Vice President Nuclear Operations

e Commonwealth Edison 1400 Opus Place Downers Grove, Illinois 60515 (f)

• 93 NOV 15 A1L :23 r

November 11, 1993 U.S. Nuclear Regulatory Comrnission Attn: Docketing and Service Branch Washington, D.C. 20555 Re: Proposed Policy Statement on NRC Staff Meetings Which Are Open to the Public. 58 Fed, Reg. 48,oso (Sept. 14, 1993).

Dear Sir:

For the following reasons, the Commonwealth Edison Company (Commonwealth) would recommend that the U.S. Nuclear Regulatory Commission (NRC) decline to adopt the proposed policy statement on open meetings . ~ 58 Fed. Reg . 48,080 (Sept. 14, 1993) .

The proposed policy provides that most meetings between the NRC Staff and "outside parties 1 " will, as a matter of discretion, be conducted as public meetings. However, the NRC will not admit the public to meetings involving c l assified information, proprietary information, safeguards information, personal information, information relating to NRC investigations or law enforcement, preliminary information, or to meetings that have no direct, substantive connection to a specific NRC decision. The NRC also indicated that it would preclude the public from meetings where "the administrative burden associated with public attendance could result in substantially interfering with the NRC Staff's execution of its safety and regulatory responsibilities."

l,d. at 48, 081.

1 An "outside individual" is any individual who is IlQt. a NRC employee, under contract to the NRC, acting as a consultant to the NRC, or a representative of the United States, State, or Foreign governments. Thus, vendors, licensees and their contractors will be considered "outside individuals."

MAY 1 O 19Ec__: -

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The routine presence of the public at meetings between the NRC Staff and licensees may adversely affect the candor of those discussions and will certainly influence the flow of information to the Staff. Participants in those meetings may well become more circumspect in their statements since the public will likely misunderstand or misconstrue the content of the conversations between the licensees and the Staff. Moreover, the resolution of technical and enforcement matters may become more complex as licensees feel compelled to contest any non-regulatory based suggestions provided by the NRC Staff. The "frictions" created by the open meeting policy are not conducive to the cooperative resolution of safety issues.

A majority of the meetings between the NRC Staff and its licensees discuss technical positions or approaches to emerging issues and a licensee is often seeking the NRC's concurrence on the resolution of these matters. Such meetings should be classified as "preliminary" because the approaches or positions have yet to be docketed and thus, are not subject to the proposed policy. Finally, the scheduling of NRC meetings may become difficult if the Staff seeks to provide the "ten days advance notice" suggested by the policy statement. rd. The NRC should not adopt a policy which routinely allows access to meetings between the NRC Staff and the Commission's licensees.

As written, the policy statement fails to address several important concerns:

0 The policy statement fails to define the scope of public involvement. Individual members of the public should not be allowed to interrupt technical meetings to advance their own personal agenda. Such meetings are not the proper forum for raising public policy issues. Recording or transcription of such meetings could also inhibit the candor and flow of information during such a meeting.

0 The "outside parties" should be consulted prior to declaring a meeting open to public participation. These individuals may intend to submit proprietary, personal, or other confidential information during these meetings. In such circumstances, an accommodation regarding the content of the meeting should be reached.

0 The policy statement shou l d specifically address the NRC resident inspector program. These individuals have been granted unescorted access to a reactor licensee"s facilities. As a result, the resident inspectors will engage in numerous "meetings" with "outside individuals."

These meetings often constitute an exchange of preliminary information. Moreover, they often occur on the licensee's property or within the protected area where the public"s Page 2

access is extremely limited. The economic burden associated with escorting members of the public to such "meetings" would greatly outweigh any benefit from the public's participation. Finally, meetings between the resident inspectors and licensees are frequently arranged on very short notice . Thus, meetings i nvolving the NRC resident inspector should be excluded from public participation .

Similar considerations would counsel that the NRC's special team inspections such as incident investigations or diagnostic team evaluations be exempt from this pol icy as well .

Conclusion The NRC should not adopt a policy that could adversely affect the candor of discussions between the NRC Staff and licensees and inhibit the flow of information to the Staff. Such a policy adds little to the existing opportunities for public participation in the licensing of facilities (such as the 2 . 206 process and the participation in license amendment hearings) and could create a substantial hinderance to communications between the NRC and its licensees .

Should the NRC decide to adopt such a policy Commonwealth would suggest that it be modified as described above. Moreover, the NRC should limit the duration of its proposed policy to the period of time necessary to determine if there is sufficient interest in the routine meetings between the NRC and its licensees to justify the increased expenditures necessary to organize the meetings and implement the policy (as was done in the two year trial program on open enforcement conferences).

Sincerely, W. F. Nau Director Strategic Licensing, Policies and Issues Page 3

Telephone (508) 779-6711 YANKEE ATOMIC ELECTRIC COMPANY TWX 710-380-7619

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I, November 10 . 1993 ,r* i FYC 93-025 SPS93-109 Secretary U.S. Nuclear Regulatory Commission Washington. DC 20555 Attention: Docketing Service Branch

Subject:

Proposed Policy Statement on Staff Meetings Open to the Public (58FR48080)

Dear Sir:

Yankee Atomic Electric Company appreciates the opportunity to comment on the proposed policy statement on public meetings. Yankee is the owner of the Yankee Nuclear Power Station in Rowe. Massachusetts and provides engineering and licensing services to other nuclear power plants in the northeast.

including Vermont Yankee. Maine Yankee. and Seabrook.

We believe that the NRC has done well in their commitment to provide the public with the fullest practical access to its activities. The current Commission has emphasized. repe at edly, the importance of ensuring public involvement as the staff exercises its regulatory and safety responsibilities.

We agree with and support public openness in regulation and believe that current guidance provides the necessary balance for the NRC staff to function and still continue to meet its openness go als.

The proposed revised policy represents. in our view. an unnecessary and inappropriate addition of another administrative burden to the workload of every technical member of the staff. While allegedly being focused at "planned formal encounters." the policy, we believe. will create yet another barrier in the minds of the staff when an attempt is made by licensees to meet with an individual staff member relative to technical or procedural information. The added policy appears as. potentially, a major impediment to the exchange of information that is so vital to the proper conduct of the regulatory process. This proposed policy could well constitute a barrier that will prevent meetings from being held on a short notice to resolve issues of immediate concern and will further serve to delay interaction that is appropriate.

C76\371 M~Y 1 O 199:r Acknowledged by card .. _ .......INMUIIUIYllim

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Secretary November 10. 1993 U.S. Nuclear Regulatory Commission Page 2 It has been our experience that the rather rigorous process for production of public announcements has resulted in notification of some meetings being published either exactly on the day of the meet i ng or so close to the date that participation in the meeting would have been impossible.

Two recent examples are 58FR57636. "Meeting with BWR Owners Group on IGSCC Inspector Training and Qualification Requirements." which occurred on October 26 and was announced that date also and 58FR54531. "Discussion of Upcoming Regulations and Revisions" which took place on October 25 and was announced in the October 22 issue which we received on October 26. The point is that this occurs fairly frequently and such information merely clogs an already full Federal Register system. More notices (the result of this policy) will not necessarily provide better public involvement.

Finally. this proposal represents another non-safety overhead activity which will siphon resources away from focus on safety and regulatory responsibilities. It will merely serve to increase agency costs at the expense of licensees under the 100% user fee policy at a net loss in regulatory effectiveness and with no public benefit. We urge that the proposal be abandoned.

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Dona l d W. Edwards Director. Industry Affairs DWE/dhm C76\371

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• 93 NOV 15 A1 0 :56 1UELECTR/C d rr.~ ~ .* t f:.

November 10, 19~JU-i: r,r , ._

WIiiiam J. Cahill, Jr.

GrOIIJI Viu Presitknt Mr. Samuel J. Chilk Secretary U. S. Nuclear Regulatory Commission Washington, DC 20555 Attn: Doc keting and Service Branch

SUBJECT:

COMMENTS ON PROPOSED OPEN MEETING POLICY Gentlemen:

TU Electric is pleased to provide comments to the proposed statement of policy regarding staff meetings open to the public.

The proposed NRC policy defines a public meeting as a ff[P]lanned, formal encounter ... for the expressed intent of discussing substantive issues that are directly associated with NRC's regulatory and safety responsibilitiesff, The policy attempts to distinguish between meetings with outside persons and meetings with NRC contractors and others, as listed in the policy, for the purpose of delineating which meetings are to be open to the public. The policy presumes that in the interest of keeping the public informed all meetings between the NRC and licensees should be open to the public.

TU Electric requests that meetings between NRC staff and licensee personnel be excluded from the open meeting requirement if any of the following are met. First, the participants are below a pre-defined level of management.

Second, the meetings are administrative in nature and they are held to discuss scheduling and constraints associated with completion of licensee items or the review of submitted materia l. Third, the meetings are technical discussions between a branch reviewer and a licensee employee and are held to answer specific questions or to provide clar ification on a submitted document.

TU Electric suggests that such a broad policy as proposed by the NRC would unnecessarily complicate NRC and licensee discussions in encounters where no NRC decisions pursuant to the NRC's regulatory or safety responsibility are to be made. TU Electric further suggests that the open meeting po l icy be applied only to those meetings where the participants are in a decision making capacity and the meeting is held incident to NRC's performance of its regulatory and safety duty.

400 N. Olive Strcct L.B. 81 Dallas, Texas 75201 'M,~Y, 1&° -109r Acknowledged by card ......................:...........

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TXX-93380 Page 2 of 2 Under the proposed policy, a visit or discussion between a licensee employee and a technical branch reviewer, held so lel y to clarify or answer questions related to submitted documents, could be cl assified as an open meeting.

TU Electric believes that a discussion held solely to answer or clarify specific questions, between licensee personnel and a technical branch reviewer, and in which no decisions affec t ing the NRC's regulatory and safety duty will be made should be poss ibl e without invoking a public meeting.

TU El ectric would be glad to f urther disc uss these comments. If you have any questions please contact Mr. Jose' D. Rodriguez at (2 14) 812-8674.

Sincerely, William J. Cahill, Jr.

By:9-&~

J. S. Marshall Generic Licensing Manager JDR/grp

- c - NUMARC

Southern Nuclear Operating Company Post Office Box 1295 Birmingham, Alabama 3520 1 Telephone (205) 868-513 1 @

Dave Morey Southern Nuclear Operating Company

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Vice President Farley Project the southern electric system November 09, 1993 Docket Nos. 50-348 50-364 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTENTION: Docketing and Service Branch Comments on Policy Statement "Staff Meetings Open to the Public" (58 Federal Register 48080 of September 14. 1993)

Dear Mr. Chilk:

Southern Nuclear Operating Company has reviewed the proposed policy statement "Staff Meetings Open to the Public," published in the Federal Register on September 14, 1993. In accordance with the request for comments, Southern Nuclear Operating Company is in total agreement with the NUMARC comments which are to be provided to the NRC.

Should you have any questions, please advise.

Respectful l y submitted ,

D~M  ?:;;Y ONM/JOK cc: Southern Nuclear Operating Company R. 0. Hill , Plant Manager U. S. Nuclear Regulatory Commission. Washington. D. C.

T. A. Reed, Licensing Project Manager, NRR U. S. Nuclear Regulat ory Commission. Region II S. D. Ebneter , Regional Admi nistrator T. M. Ross , Senior Resident Inspector MAY 1 o 1994 Acknowledged by card ......,...ueeeeeeeem*tttttMHI

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State of New Jersey Department of Environmental Protecdon and Energy .

DMsion of Environmental Safety. Health and Analytical Programs 93 CN 415 Trenton, NJ 08625--0415 .r Jeanne M. Fox October 15, 1993 Getalci P. Nicholls, Ph.D.

Acting Commissioner Director Mr. Samuel J. Chillik, Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Mr. Chillik:

I am writing on behalf of the Radiation Protection Program of the New Jersey Department of Environmental Protection and Energy to express support for the Nuclear Regulatory Commission (NRC) proposal to open meetings to the public. By attending such meetings we may attain a greater understanding of enforcement, licensing and site cleanup issues that involve New Jersey licensees and sites.

Since most of ;New Jersey's state licensees also hold an NRC license, open meetings can aid in providing consistent enforcement from our two agencies and may even alert the state to potential problems with licensees. I believe there are also valuable insights into NRC's handling of cleanups within New Jersey to be gained from attending these meetings.

I hope this policy will be implemented in the near future. I believe it will be of benefit to th i s Program and the state of New Jersey.

Sincerely,

}:t!/r Jill Lipoti Assistant Director c: Gerald P. Nicholls, Director Bob Stern, Chief Fred Sickels New Jersey Is an Equal Opportunity fmp/oyer Recyded Paper Acknowledged by card ....~:... !...~.:!.~

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• 93 S[P - 8 P3 :35 NUCLEAR REGULATORY COMMISSION Jl, l

• Staff Meetings Open to the Public; Proposed Policy Statement AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed policy statement; Request for comment.

SUMMARY

This proposed policy statement presents the guidance which the Nuclear Regulatory Commission (NRC) staff proposes to follow in opening meetings between the NRC staff and one or more outside persons to public observation. The proposed policy statement applies solely to NRC staff-sponsored and conducted meetings and not to meetings conducted by outside entities that NRC staff members might attend and participate in. This policy also announces proposed central agency services available to the public for obtaining schedules for the staff meetings that are open to public attendance. The policy will be issued to the NRC staff as a management directive. Comments are invited on this policy and on the specific concerns raised by the American Mining Congress set forth in this document.

11/1,;Je,3 DATE: Comment period expires 60 days from date of publication in the Federal Reg i ster. Comments received after this date will be considered if i t is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.

ADDRESSES: Send comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington DC 20555. Attn: Docketing and Service Branch.

Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland between 7:45 a.m. and 4:15 p.m. on Federal workdays.

FOR FURTHER INFORMATION CONTACT: Donnie H. Grimsley, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, telephone: ( 301) 492-7211.

SUPPLEMENTARY INFORMATION:

Proposed Statement of Policy A. Introduction The NRC has a longstanding practice of providing the public with the fullest information practicable on its activities and of

conducting business in an open manner, while balancing the need for the NRC staff to exercise its regulatory and safety responsibilities without undue administrative burden. This policy is wholly a matter of NRC discretion and can be and will be departed from as NRC convenience and necessity may dictate.

This policy supersedes the policy approved by the Executive Director for operations that was published in the Federal Register on June 28, 1978 (43 FR 28058).

B. Definition of Public Meeting:

1. A public meeting i~ a planned, formal encounter between one or more NRC staff members and one or more outside persons with the expressed intent of discussing substantive issues that are directly associated with NRC's regulatory and safety

- responsibilities. This policy applies solely to NRC staff-sponsored and conducted meetings and not to meetings conducted by outside entities that NRC staff members might attend and participate in.

2. An outside person is any individual who is not

a. An NRC employee;

b. Under contract to the NRC;

c. Acting in an official capacity as a consultant to the NRC;

d. Acting in an official capacity as a. representative of an agency of the executive, legislative, or judicial branch of the U.S. Government (except when the agency is subject to NRC regulatory oversight);

e. Acting in an official capacity_as a representative of a foreign government.

c. Exemptions:

1. This definition applies to meetings between the NRC staff and outside persons. It does not apply to the Commission or offices that report directly to the commission. Similarly, it does not apply to meetings between the NRC staff and representatives of State governments, including Agreement State representatives, relating to NRC Agreement State activities or to State regulatory actions or to other matters of general interest to the State or to the Commission, that is, matters other than specific NRC licensing or regulatory actions involving specific licensees. Also, the definition of a public meeting is not intended to apply to or supersede any existing law, rule, or regulation that addresses public attendance at a specific type of meeting. For example, 10 CFR Part 7 specifically addresses public attendance at advisory committee meetings; 10 CFR Part 2, Appendix c, addresses public attendance at enforcement

conferences; and 10 CFR Part 9, Subpart c, addresses public

---attendance- -at--comm.ission meetings.

2. In general, meetings between the NRC staff and outside parties will be classified as public meetings unless the NRC staff determines that--

The subject matter to be discussed

a. Is specifically authorized by an Executive Order to be kept secret in the interests of national defense or foreign policy (classified information);

b. Contains trade secrets and commercial or financial information (proprietary information);

c. Contains safeguards information;

d. Is of a personal nature where such disclosure would constitute a clearly unwarranted invasion of personal privacy;

e. Is related to a planned, ongoing, or completed investigation and/or contains information compiled for law enforcement purposes;

f. Could result in the inappropriate disclosure and dissemination of preliminary, unverified information;

g. Has no direct, substantive connection to a specific NRC regulatory decision or action;

h. Indicates that the administrative burden associated with public attendance at the meeting could result in substantially interfering with the NRC staff's execution of its safety and regulatory responsibilities.

3. It is important to note that whether or not a meeting should. be open for public attendance is dependent primarily on the subject matter to be d~scussed, not on whom within the NRC staff is participating (e.g., staff level versus senior management).

D. Notice to the Public Normally, meeting announcement inform~tion is to be provided by the staff to the agency's meeting announcement coordinator at least ten days in advance of the date of the meeting so that adequate notice can be made to the public. Public notice will be provided weekly via a press release and posting in the agency headquarter's Public Document Room, 2120 L street (Lower Level)

NW., Washington, DC. The public may obtain a schedule of agency staff meetings via a toll-free telephone recording and toll-free electronic bulletin board (telephone numbers to be announced when the final policy statement is announced).

Meetings which are scheduled for the next 60 days will be announced to the public. Meeting announcements will include the date, time, and location of the meeting, as well as its purpose, the agency and outside organizations in attendance, and the name and telephone number of the agency contact for the meeting.

Information about canceled, rescheduled, and open meetings scheduled on short notice will be updated daily or as needed via the posting at the agency Public Document Room, the telephone recording, and the electronic bulletin ooard.

Discussion of the Policy The purpose of revising the open meeting policy is to further the goal of giving meaningful opportunities for the public to be informed of NRC activities without unduly affecting open and candid discussions between licensees and the NRC staff or interfering with the staff's ability to exercise its regulatory and safety responsibilities without undue administrative burden. The policy also provides staff guidance regarding what types of meetings should*be open to

public observation. The meeting policy is wholly a matter of NRC discretion and can be and will be departed from as NRC convenience and necessity may dictate.

The policy distinguishes between a planned, formal encounter from one that occurs informally, such as when an NRC official finds that an opportunity comes available while at a licensee's site to meet with a new plant manager or with a corporate official who is visiting the site, or when a licensee official attending an open meeting at an NRC office finds the Regional Administrator has time to visit with him for a short period.

such informal meetings are limited to those that do not have the express intent of discussing substantive issues that are directly associated with the NRC's regulatory and safety responsibilities.

The policy excludes meetings where the express intent is not to discuss substantive issues that are directly associated with NRC's regulatory and safety responsibilities. such meetings could include training, conferences, and association meetings where both NRC staff and applicant/licensee otficials participate. The policy also excludes meetings the NRC staff has with its own employees, contractors, and consultants, other Federal government agencies where the matter does not relate to a specific activity for which NRC has oversight, and with

representatives of foreign governments and state representatives on matters other than relating to specific NRC licensing or regulatory actions involving specific licensees.

The exceptions to staff meetings that will be open to the public permit meetings to be closed to ensure that classified, commercial or financial proprietary, safeguards, personal privacy and investigative information protected by statute or otherwise requiring protection is not disclosed to the public. The final three exceptions ensure that the staff has sufficient flexibility to carry out their responsibilities without being inhipited by the need to announce the meeting as one open to the public where it would interfere with the performance of the Commission's safety and regulatory responsibilities.

A meeting to discuss preliminary, unverified information is not an open meeting under the policy. The purpose of this exception is to ensure that licensees and applicants will not be inhibited in bringing to the Commission information that is preliminary in nature or is not verified or sufficiently analyzed to draw firm conclusions. It also ensures that discussions about potential implications of this information occur candidly and openly without fear that they may be misunderstood by the public as fact or as final conclusions.

A meeting where the subject matter has no direct, substantive connection to a specific NRC regulatory decision or action is not an open meeting under this policy. The purpose of this exception is to ensure that routine administrative matters relating to regulatory activities can be carried out efficiently.

Meetings to discuss the status of actions, schedules for NRC action, an applicant's or licensee's activities, or general issues not directly related to a decision or action before the staff would not be open meetings under this exception.

The final exception is for meetings where the administrative burden associated with public attendance could result in substantially interfering with the NRC staff's execution of its safety and regulatory responsibilities.* This exception ensures that the staff has the discretion to have a needed meeting on short notice where adequate public notice cannot be provided without placing an undue burden on the agency. The meeting could be necessary because of an urgent issue that needs addressing or where the opportunity becomes available on short notice to meet with an official of the applicant or licensee that would benefit the staff person in carrying out his or her duties. The meeting also might be in a location that does not have the facilities to easily accommodate the public, such as short morning meetings of resident inspectors with the plant manager, because such would require a daily effort to establish access authorization to

protected areas. The meeting may not be able to be scheduled with sufficient definiteness to permit adequate public notice, such as when an inspector conducts an exit meeting with an applicant/licensee official at the conclusion of a routine inspection. A meeting with an applicant/licensee where agency staff is responding to a significant safety or safeguards event would not be open under this exception because to open such a meeting would be an undue burden on inspectors in that it would interfere with their safety and regulatory responsibilities at a time when they are focused on understanding and resolving significant safety or safeguards problems. Similarly, NRC inspections are not public meetings under this policy.

The system planned for providing public notice of all NRC staff open meetings will have a single toll-free telephone recording and an electronic bulletin board for providing meeting notice information. Open staff meetings will also be announced by a weekly press release as well as being posted in the agency's Public Document Room, as is the current practice.

American Mining Congress Concerns The American Mining congress (AMC) has expressed concerns on the agency's interim policy on open staff meetings. The interim policy is similar to the proposed policy statement. It has been

used by the Office of Nuclear Reactor Regulation, Office for Analysis and Evaluation of operational Data, and NRC regional offices since September 1992. The proposed policy sta~ement differs from the interim policy statement in that several exemptions have been clarified. Several of these changes may have addressed the concerns of AMC. However, since the concerns raise issues that may still be applicable to the current policy statement, they are being presented and comments are invited on them.

First, the AMC expressed the concern that the policy definition is too broad and the exemptions are not adequate to provide licensees with a clear understanding on how the policy will be implemented.

second, they expressed the concern that the policy adds little value to existing procedures and opportunities for meaningful and appropriate public participation and would create a substantial hindrance in important, ongoing communications between NRC and its licensees.

Third, the AMC believes that the policy is in conflict with 10 CPR 2.102, which permits staff to request applicants and licensees to confer informally with the staff and that the policy will likely discourage licensees from reporting and resolving

compliance issues with NRC staff because it mandates public notice and potential access to the meetings by third parties.

Also, the AMC believes that resolution of technical and enforcement matters will be protracted and more contentious than under the present policy and may often result in more litigation because it would chill the free exchange of ideas and information, and, in effect, create a significant roadblock to fulfillment of the Commission's regulatory responsibilities.

Fourth, the AMC saw the need for meetings to be scheduled in advance to ensure adequate public notice as hindering the regulatory process because it could prevent meetings from being held on short notice to resolve issues of immediate concern and could delay resolution of routine matters such as those relating to schedules.

Fifth, the AMC expressed concern that the policy would require increased expenditures by NRC and licensees to organize and monitor the meetings and respond to public comments.

Also it stated that licensee fees should not _be charged to cover meeting expenses unless the outside party also pays.

Sixth, the AMC expressed concern that the meetings will be

used by outside parties to advance their personal agendas and stated that technical meetings between the NRC and licensees are not the proper forum for raising public policy issues.

Dated at Rockville, Maryland, this i~ day of~~\'i>\..,,1993, For the Nuclear Regulatory Commission.

Secreta.ry o