ML23153A059

PRM-009-002 - 59FR30308 - Petition for Rulemaking Submitted by the Ohio Citizens for Responsible Energy, Inc

ML23153A059
Person / Time
Issue date:	06/13/1994
From:	Annette Vietti-Cook NRC/SECY
To:
References
PRM-009-002, 59FR30308
Download: ML23153A059 (1)

Text

ADAMS Template: SECY-067 DOCUMENT DATE: 06/13/1994 TITLE: PRM-009-002 - 59FR30308 - PETITION FOR RULEMAKING SUBMITTED BY THE OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC.

CASE

REFERENCE:

PRM-009-002 59FR30308 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

DOCKET NO. PRM-009-002 (59FR30308}

In the Matter of PETITION FOR RULEMAKING SUBMITTED BY THE OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC.

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

- 02/15/94 02/10/94 PETITION FOR RULEMAKING SUBMITTED BY THE OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC.

05/11/94 05/09/94 AMENDMENT TO THE PETITION FOR RULEMAKING SUBMITTED BY THE OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC.

07/05/94 06/07/94 FEDERAL REGISTER NOTICE - RECEIPT OF PETITION FOR RULEMAKING 07/05/94 06/30/94 COMMENT OF MARVIN I. LEWIS ( 1}

07/08/94 07/05/94 COMMENT OF DAVID A. LOCHBAUM ( 2}

08/05/94 07/29/94 COMMENT OF SOUTH CAROLINA ELECTRIC l GAS CO.

(JOHN L. SKOLDS} ( 3}

08/12/94 08/08/94 COMMENT OF KENNECOTT ENERGY

- (MICHAEL H. GIBSON, VICE PRESIDENT} ( 4}

08/22/94 08/17/94 COMMENT OF SOUTHERN NUCLEAR OPERATING CO (DAVE MOREY, VP} ( 5}

08/22/94 08/17/94 COMMENT OF GEORGIA POWER COMPANY {C.K. MCCOY, VP} { 6}

08/29/94 08/29/94 COMMENT OF USEC {ROBERT WOOLLEY, MANAGER} { 7}

08/29/94 08/29/94 COMMENT OF AMC (JAMES E. GILCHRIST, VICE PRESIDENT} { 8}

08/29/94 08/29/94 COMMENT OF NUBARG (NICHOLAS REYNOLDS, ET AL} { 9}

08/29/94 08/29/94 COMMENT OF NEI (ROBERT W. BISHOP} { 10}

08/29/94 08/25/94 COMMENT OF ILLINOIS POWER CO.

(RICHARD F. PHARES, DIRECTOR LICENS} ( 11}

08/29/94 08/25/94 COMMENT OF WYOMING MINING ASSOCIATION (MARION LOOMIS, EXECUTIVE DIRECTOR} { 12}

08/29/94 08/24/94 COMMENT OF THE BOEING CO

{T.D.GALLACHER, SENIOR MANAGER} { 13}

DOCKET NO. PRM-009-002 (59FR30308)

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 08/30/94 08/22/94 COMMENT OF MAYO CLINIC (RICHARD J. VETTER, PHO) ( 14) 08/30/94 08/29/94 COMMENT OF THE CLEAN WATER FUND OF NORTH CAROLINA (DR CARL RUPERT) ( 15) 08/31/94 08/24/94 COMMENT OF PECO ENERGY CO.

(G.A. HUNGER, JR., DIR. LICENSING) ( 16) 09/01/94 08/25/94 COMMENT OF FPL (W.H. BOHLKE, VP) ( 17) /

09/01/94 08/30/94 COMMENT OF ENTERGY OPS INC. (JERROLD G. DEWEASE, VP) ( 18) /

09/01/94 08/30/94 COMMENT OF VIRIGINIA POWER (M.L. BOWLING, MANAGER) ( 19) ~

09/02/94 08/26/94 COMMENT OF BGE (ROBERT E. DENTON, VP) ( 20) 09/02/94 08/29/94 COMMENT OF NORTHWEST UTILITIES (J.F. OPEKA, EXEC. VP) ( 21) 09/06/94 08/29/94 COMMENT OF COMMONWEALTH EDISON (MARTIN J. VONK) ( 22) /

09/06/94 08/29/94 COMMENT OF WESTINGHOUSE ELECTRIC CORP. /

(N.J. LIPARULO, MANAGER) ( 23) 09/07/94 08/31/94 COMMENT OF PENNSYLVANIA POWER AND LIGHT COMPANY (R. G. BYRAM, SR. V. P.) ( 24) 09/08/94 08/30/94 COMMENT OF BOSTON EDISON (E.T. BOULETTE, PHO) ( 25) V 09/12/94 09/02/94 COMMENT OF WISCONSIN ELECTRIC (BOB LINK, VP) ( 26) /

09/19/94 08/29/94 COMMENT OF NIAGRA MOHAWK POWER CORPORATION (MARTIN J. MCCORMICK, JR., V.P.) ( 27) 12/14/94 12/13/94 OCRE RESPONSE TO COMMENTS ON PRM-9-2.

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December 13, 1994 L ... .. r, OHIO CITIZENS FOR RESPONSIBLE E~RGY., INC-., (".OCRW?' ) !RE$~0~16TO COMMENTS SUBMITTED TO NRC ON :UCRE- *PETITION FOR RULEMAKING, PRM-9-2, 59 FED. REG. 30308 (JUNE' -rs, 1994) o.. ,. ~T on.

OCRE respectfully requests that the U.S. Nuclear Regulatory Com-mission consider this response to the comments filed on our petition for rulemaking, PRM-9-2, in its deliberations on the petition.

RESPONSE TO COMMENTS

1. Burden on licensees Many commenters complain that the adoption of PRM-9-2 would cre ate an excessive burden on licensees who would have to respond to public requests for documents. Centerior Energy states that "avid opponents of nuclear power, for example, might submit thousands of such requests simply to increase the costs of nucle-ar operations and harm its competitiveness." Commonwealth Edison anticipates "hundreds of such requests for each of our six oper-ating stations." The industry apparently believes that there are legions of people interested in nuclear issues who actually want to read technical documents. Anyone who has done any fundraising in the public interest sector on nuclear issues lately knows better. I can unequivocally state that the level of public interest and concern over nuclear energy is steadily declining.

Furthermore, very few of those who claim any interest or concern are interested in obtaining plant documents. The Nuclear Energy Institute has a better perception of the numbers involved when it stated "a benefit only would accrue to those ffili. individuals whose vocation or avocation it is to oversee NRC and licensee performance . . . " (emphasis added). (However, NEI is wrong that only those few individuals would benefit from PRM-9-2; OCRE believes that our society in general will benefit.)

As for the potential for abuse cited by Centerior Energy, the fact the under PRM-9-2, requesters of documents would have to pay reproduction fees will discourage such abuse. Very few individu-als or organizations have the resources to file thousands of document requests, and pay for the documents received, for no purpose other than harassment.

The industry commenters complain of the excessive costs of searching for requested documents, determining whether they 1

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contain proprietary or other exempt information, reproducing the documents, etc. E.g., Winston & Strawn states that "each licen-see would have to establish a document management system to determine which of their records are privileged under the excep-tions listed . . . " OCRE would hope that any holder of an NRC license would already have an efficient information and document management system necessary for its own operational needs. It therefore should impose little burden to use this system for external requests when it is already in use for similar internal requests. OCRE's experience with discovery in 6 189a proceedings indicates that licensees are readily able to locate and produce requested documents and determine whether they contain proprie-tary (or other sensitive) information.

2. The public already has sufficient access to information Many of the industry commenters state that members of the public already have access to vast quantities of information due to reporting requirements in the NRC's regulations. It is important to recognize that OCRE's petition was prompted by certain trends and policies in the NRC that threaten to erode reporting require-ments and public access to information. Some of these were documented in the petition. Other such trends and policies include the report of the Regulatory Review Group, SECY-94-093, "NRC Staff Assessment of Reporting Requirements for Power Reactor Licensees," dated April 1, 1994, and the proposed rule, "Reduc-tion of Reporting Requirements Imposed on NRC Licensees," 59 Fed.

Reg. 54842 (November 2, 1994).

Winston & Strawn claims that the "liberal discovery provisions in 10 CFR Part 2 offer ample opportunities for intervenors to devel-op support for contentions during licensing -proceedings." This neglects the fact that, without sufficient factual information to support admission of contentions, petitioners will never become intervenors and will never have the right to discovery.

Some cornmenters pointed to the existence of NRC inspection reports, which are made public, as providing sufficient informa-tion, particularly regarding licensee activities ~hich are not documented in the public domain. NRC inspection reports are not, an adequate substitute for the provisions of PRM-9-2. NRC in-spections sample a fraction of the total activities conducted by licensees. NRC inspection reports do not contain copies of every plant document which may be necessary for members of the public to meaningfully participate in the NRC's proceedings.

Westinghouse Electric Corporation states that "at no point in its statement of position does OCRE acknowledge the fact that the public has access under the Freedom of Information Act to all non-exempt agency records . . . " This is not true. In PRM-9-2 2

OCRE explained that information not required to be submitted to the NRC is most probably not available under the FOIA, unless the FOIA request was fortuitously received when an NRC inspector just happened to have in his or her possession the plant documents requested.

Westinghouse also gives an example of documents publicly avail-able relating to Bulletin 88-07, claiming that "the OCRE Petition would suggest that . . . the only information available to OCRE with respect to the issue addressed in IE Bulletin 88-07 is the Bulletin itself." OCRE made no such suggestion. The purpose of citing such generic communications was to illustrate a trend in reducing reporting requirements. Generic communications issued prior to 1988 had more complete reporting requirements.

3. Lack of statutory authority Several commenters stated that the NRC lacks the statutory au-thority to adopt the regulations suggested by OCRE. The NRC does have the authority to adopt such measures.

Section 161p 0£ the Atomic Energy Act authorizes the Commission to "make, promulgate, issue, rescind, and amend such rules and regulations as may be necessary to carry out the purposes of this Act." Among the purposes of the AEA are the public participa-tion responsibilities of the NRC contained in Section 189.

Public participation considerations, including public access to information, are surely within the reach of 6 16lp. As the federal courts have held, the AEA is "virtually unique in the degree to which broad responsibility is reposed in the adminis-trative agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives."

Siegel y_.._ Atomic Energy Commission, 400 F.2d 778, 783 (D.C. Cir.

1968); Carstens y_.._ Nuclear Regulatory Commission, 742 F.2d 1958 (9th Cir.) cert, denied, 417 U.S. 1136 (1984).

4. The Freedom of Information Act, Privacy Act, and Sunshine Act Several commenters stated that PRM-9-2 is contrary to the Free-dom of Information Act, is an attempt to impose FOIA on private entities, or is an attempt to modify the FOIA. Pennsylvania Power & Light Company stated that the FOIA, Privacy Act, and the Government in the Sunshine Act prevent the NRC from granting OCRE's petition.

Since, if adopted, OCRE's proposed regulations would be promul-gated under 8 161 of the AEA, and not under the FOIA or similar statutes, they could not be contrary to the FOIA. The FOIA 3

applies only to agency records. If the NRC, using its broad discretion under the AEA, decides to adopt regulations estab-lishing public right of access to licensee-held information to enhance meaningful public participation in its proceedings, it can certainly do so. Contrary to PP&L's assertion, OCRE sees nothing in the three acts cited which would prevent the NRC from granting PRM-9-2.

Since the FOIA is a statute, it can only be modified by Congress, not by the NRC or by OCRE. In any event, OCRE is not seeking to modify the* FOIA.

5. Appellate issues Several commenters apparently misconstrued the appeal provisions of PRM-9-2.

Centerior Energy refers to "potential litigation over disputes before an Administrative Law Judge and ensuing appeal to the federal courts of appeal." OCRE made it clear in PRM-9-2 that the decision of the ALJ would be final and not subject to further administrative or judicial review. The reason for this is to reach a quick resolution to the dispute and to avoid lengthy judicial review. This will conserve the resources of both the requester and the possessor. It will avoid situations such as the reverse FOIA litigation regarding the General Electric Reed Report, where the 7th Circuit Court of Appeals noted that the protracted litigation served to frustrate the requester, and that the delay had rendered the Reed Report more an historical curios-ity than* a relevant text.

NEI anticipates that, in the appeal, "there would be substantial demand on NRC staff resources to assist the Licensing Board's

[sic] in its consideration of the dispute. (It is improbable that a Licensing Board would render its decision without the views of the NRC staff.)" OCRE sees no need for the NRC staff to become involved in the appeal process envisioned in PRM-9-2.

The dispute is between the requester of the documents and the possessor of the documents. There is no reason why a Licensing Board (or more properly in this instance, an ALJ) would need the advice of the NRC staff in a matter that, compared to most of the cases heard by the ASLB. is relatively lacking in complexity.

Baltimore Gas and Electric Company questions why the burden of proof should be on the document possessor to sustain its actions.

Placing the burden of proof on the party that does not possess the documents is clearly improper. This is recognized in the FOIA, where, for judicial review, "the burden is on the agency to sustain its action." 5*USC 552(a) (4) (B). Even with the burden 4

placed on the agency, the D.C. Circuit found it necessary to establish special procedures to rectify an anomaly inherent in every FOIA case in which the FOIA plaintiff, although the party with the greatest interest in insuring that the FOIA's "over-whelming emphasis upon disclosure" is realized. is, because of his lack of knowledge of and access to the agency records he seeks, "at a loss to argue with desirable legal precision for the revelation of the concealed information." Vaughn Y....... Rosen, 484 F.2d 820, 823 CD.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). The Vaughn court's reasoning is a cogent explanation of why the burden of proof must be on the possessor of the requested documents.

6. PRM-9-2 is not needed to ensure protection of the public health and safety Several commenters claim that OCRE has not demonstrated why the proposed regulations are necessary to ensure protection of the public health and safety. Two commenters, Kennecott Energy and the Wyoming Mining Association, claim that PRM-9-2 would "erode regulatory control" held by the NRC.

While OCRE believes that increased public access to licensee-held information will enhance safety, that is not the primary reason for filing the petition. The purpose for PRM-9-2 is to protect the public's access to information, which is essential. and indeed, vital, £or meaningful public participation in the NRC's regulatory process. Public participation is one of the NRC's statutory responsibilities under the AEA.

It is OCRE's position that members of the public also have a Constitutional due process right to participate in the NRC's proceedings. The Fifth Amendment of the Constitution prohibits the government from depriving any person of life or property without due process of law. NRC-licensed activities are hazard-ous activities, conducted under government sanction and license, that have the potential to endanger life and property. The issuance of an NRC license is thus a government action which creates the potential for injury to members of the public. This potential for injury would not exist but for the NRC's licensing action. Due to the federal preemption provisions of the AEA, members of the public cannot seek relief from state courts or legislatures (with the limited exceptions of the Agreement State program for materials licensees and the provisions of the Clean Air Act). Members of the public cannot go directly to federal court to seek relief, but first must exhaust administrative remedies within the NRG, and the standard of review in the federal courts is highly deferential to the NRC. See, e.g, Balti-lllQ.rn G.a.a.. .and Electric QQ.... Y..... lffi..DC., 463 U.S. 87 (1983). Partici-pation in NRC proceedings is therefore the only due process mechanism available for members of the public.

5

As such, the NRC's proceedings must offer meaningful public participation opportunities. Union Qf. Concerned Scientists y_,._

N.RSl, 735* F.2d 1437, 1446 (D.C. Cir. 1984). Public participation cannot be meaningful if public participants do not have access to information on an equal footing with the NRC and the industry.

"Knowledge is power" may be a cliche, but it is true. Members of the public must have access to the detailed information that would be made available by PRM-9-2 so they can reach their own independent conclusions and present them, with the supporting bases, in licensing and license amendment proceedings, petitions filed under 10 CFR 2.206, comments on proposed rules and proposed regulatory guidance, and in petitions for rulemaking. It is not sufficient to rely on NRC inspection reports, safety evaluation reports,) or licensees' conclusory statements, as these do not permit independent analysis.

Far from "eroding regulatory control," PRM-9-2 will enhance and augment the NRC's ability to protect the public health and safe-ty. The NRC does not have unlimited resources and cannot inspect every facet of licensed activities at all times. Persons utilizing the procedures in PRM-9-2 will be able to detect safety problems and violations that the NRC may miss. Since the NRC, of course, remains the regulator, persons finding such problems must bring them to the NRC's attention through one of the mechanisms mentioned above.

7. Backfit Rule considerations Some commenters claim that the adoption of PRM-9-2 would consti-tute a backfit and thus would require a backfit analysis under the Backfit Rule, 10 CFR 50. 109.

Since the purpose of PRM-9-2 is to further the NRC's public participation responsibilities under the AEA, it should not be subject to the Backfit Rule. As explained above, access to information is essential for meaningful public participation.

And since, in OCRE's view, the NRC's public participation mecha-nisms implement the Constitutional requirement for due process of law, 10 CFR 50. 109 should not apply because it cannot supersede the Constitution.

8. Requesters should pay search as well as reproduction fees Some commenters suggested that requesters should be required to pay the possessors' costs of searching for requested documents, as well as the cost of reproducing them. They point out that the FOIA allows agencies to recover search as well as reproduction B

costs.

OCRE feels that charging for reproduction fees only is an equita-ble distribution of costs considering the vast disparity in resources between licensees and members of the public, the fact that licensees should already have in place an efficient document management system for their own internal uses, and the fact that possession of an NRC license allows the licensee to engage in profitable business activities. In short, the costs of searching for requested documents should be regarded as part of the cost of doing business as an NRC licensee engaged in hazardous activi-ties.

l OCRE would also note that PRM-9-2 has no provisions for waiver of fees, which are included in the FOIA.

9. Licensee self-assessments Northeast Utilities is concerned that PRM-9-2 would permit the disclosure of internal self-assessment documents, which could be used in adversarial rate regulatory and prudence proceedings "by people whose only agenda is to assign fault and impose an econom-ic disallowance on utilities." This could have an adverse impact on nuclear safety.

OCRE shares NU's concern about the potential detrimental impact of rate regulatory and prudence proceedings on the safety of operating nuclear power plants. One option might be to create an additional exemption from disclosure for licensee self-assess-ments. On the other hand, as the NRC relies more on licensee self-assessments, the public has a right to know whether these are effective. And, the term "licensee self-assessment" could be interpreted in an overly-broad manner so as to shelter from disclosure most licensee documents.

While OCRE remains receptive to solutions that could prevent the harmful effects anticipated by NU, OCRE feels the best public policy is to strike the balance in favor of the public's right to know.

10. Limitation to information related to docketed submittals One commenter, David A. Lochbaum, suggested that the information subject to public disclosure by the suggested regulations in PRM-9-2 be limited to records used by a licensee to support a docketed submittal.

7

OCRE finds this proposal too limiting. Such a limitation would not enable public participants to research and reach independent conclusions about any matter relevant to nuclear safety.

Respectfully submitted, Susan L. Hiatt Director, OCRE 8275 Munson Road Mentor, OH 44060-2406 (216} 255-3158 8

T NIAGARA N UMOHAWK DOCKETED NIAGARA MOHAWK POWER CORPORATION/Nino Milo Point Nuclear Station, P.OlJ&x , Lyc oming, NY 13093 Martin J. McCormick Jr. P. E.

Vice President Nuclear Safety A1ae11ment and Support *94 SEP 19 P4 :06 (3151 349-2660 DOCKET NUMBER (3151 349-2605 (FAX)

PETlT\ON RULE PRM q- OFFIC~ OFr sr.7E_T\~l DO CK ETIH ll E.. * * , ..

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NMPIL0856 August 29, 1994 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20055 Att: Docketing and Service Branch

Dear Mr. Secretary:

Re: Ohio Citizens for Responsible Energy Petition for Rulemaking (PRM-9-2)

On June 13, 1994 the Nuclear Regulatory Commission published for public comment a petition for rulemaking filed by Ohio Citizens for Responsible Energy (59 Fed. Reg. 30308). The petition requests that the NRC amend its regulations to allow public access to information held by licensees. The Nuclear Energy Institute (NEI) is providing comments in response to the petition on behalf of the nuclear power industry.

As a member of NEI, Niagara Mohawk Power Corporation supports and endorses NEI's comments. However, because of the significant adverse impact that would result if this petition were granted, Niagara Mohawk wishes to add its own brief comments to the record.

For reasons clearly noted in NEI' s comments, the NRC lacks statutory authority to implement regulations allowing public access to licensee held documents. However, even if the NRC had such authority, to allow such access would be a grave error. The Petitioner states, without support, that such access would "impose a minimal burden on licensees and that this minor burden would be justified by the substantial increase in meaningful public participation". Niagara Mohawk knows from its own experience that, in fact, the burden on licensees would be enormous.

fFEB 2 4 1995 Acknowledged by card ..........HHOHH-*11r-.._

't-S. NUCLr-;,-. r  : ,.).;L.ATORY COMMISSION OOCKt f :r~(i & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistics

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During the course of recent litigation regarding nuclear plant construction, Niagara Mohawk was required to review and provide internal documents related to the litigated issues. This effort, which was conducted under the supervision of the court and which was limited in scope by the Federal Rules of Civil Procedure, required literally scores of people devoted on a full-time basis for several years to screen and review millions of documents. Over 20,000 file boxes of documents were provided to the opposing litigants.

The Petitioner now proposes that we be required to produce at the whim of any requestor, "any record relevant to NRC-licensed or regulated activities held by a

[licensee]". Such a request, which would not be subject to court supervision and which would not be limited by the relevancy requirements of the Federal Rules, could require an effort far beyond that required during our recent litigation. All of the many millions of documents that constitute nuclear facility records could be encompassed by a single broad document request. Massive resources would be required to respond to such a request. Such an effort does nothing to enhance nuclear safety. It simply diverts resources that could be more effectively engaged in the operation of the facility.

For the foregoing reasons, Niagara Mohawk urges that the petition be denied.

Very truly(~urs,

~~ . u~

iartir;J. McCormick Jr.

Vice President Nuclear Safety Assessment and Support

/sls Mr. T. T. Martin, Regional Administrator, Region I Mr. B. S. Norris, Senior Resident Inspector Mr. M. L. Boyle, Acting Director, Project Directorate 1-1, NRR Mr. D. S. Brinkman, Senior Project Manager, NRR Records Management

W1scons1n Electnc POWER COMPANY 231 W. Michigan, PO. Box 2046. Milwaukee, WI 53201-2046 *94 SEP 12 P4 :09 (414) 221-2345 VPNPD 084 NRC-94-060 September 2, 1994 Mr. John c. Hoyle, Acting Secretary U.S. NUCLEAR REGULATORY COMMISSION Mail Station Pl-137 Washington, DC 20555 Attention: Docketing and Service Branch

Dear Mr. Ho yl e :

OHIO CITIZENS FOR RESPONSIBLE ENERGY PETITION FOR RULEMAKING 59 FEDERAL REGISTER 30308 Wisconsin Electric Power Company is submitting the following comments on the petition for rulemaking submitted by Ohio Citizens for Responsible Energy (OCRE) and described at 59 Federal Register 30308, June 14, 1994. The petition requests that the NRC amend its regulations (10 CFR Part 9) to provide public access to a broad range of documents maintained by licensees, but not in the possession of the NRC. Wisconsin Electric appreciates the opportunity to comment on this petition foF rulemaking.

Wisconsin Electric supports public participation in the regulatory process and understands the public's right to obtain inforrnaticn regarding the regulated activities of NRC licensees. As an NRC licensee, we fully accept that regulated aspects of our business will be open for review by the regulator and for disclosure to the public. We believe that current statutes and regulations support the public's "right to know." Existing statutory and regulatory mechanisms reflect sound public policy representing an appropriate balance between the public's "right to know" and the rights of private entities to conduct their business. In addition to access to licensee documents afforded the public via the NRC Public Document Room, members of the public may obtain access to licensee documents through the Freedom of Information Act, through the discovery process established for NRC licensing proceedings, or through civil litigation. We believe that the provisions of these existing rules establish appropriate parameters for the public's SEP 2 8 1994, A subsirlial)'o/Wisconsin £ne,gyCOl]XJnJlio (, nowledged by card... ~

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Mr. John c. Hoyle, Acting Secretary September 2, 1994 Page 2 right to obtain internal documents generated by an NRC licensee.

Therefore, we believe that the petition by Ohio Citizens for Responsible Energy to amend 10 CFR Part 9 is not necessary.

In addition to our belief that the petition for rulemaking is unnecessary, Wisconsin Electric believes that the amendments requested by OCRE are not within the NRC's statutory authority, would require disclosure or an unreasonably broad range of documentation, and would impose an excessive burden on licensees.

Public access to information necessary to support meaningful participation in the regulatory process is currently adequate and is not being unduly hindered by existing practices and procedures.

For these reasons, Wisconsin Electric urges the NRC to deny OCRE's petition for rulemaking in its entirety.

Wisconsin Electric endorses the position of the Nuclear Energy Institute, whose comments have been submitted on behalf of the nuclear energy industry. Wisconsin Electric wishes to emphasize the following specific issues inherent in OCRE's petition for rulemaking.

The OCRE Request would Require Disclosure of an unreasonably Broad Range of Documentation Inasmuch as it is the business of licensees to operate nuclear power plants, one would expect to find that most, if not all, documents in possession of the licensee are related in some way to activities regulated by the NRC. Given the breadth of the OCRE petition, few if any document requests could be refused on the basis that they "have absolutely no relevance to any activity, facility, or material licensed or regulated by the NRC." Wisconsin Electric believes that the disclosure guidelines proposed in OCRE's petition are unreasonably broad.

Wisconsin Electric does not agree that there is a trend toward decreasing the amount of information provided by licensees to the NRC. OCRE's petition asserts specifically that Generic Letters and Bulletins instruct licensees to send conclusory statements that they have completed the requested actions to the NRC instead of providing detailed documentation and analysis of actions. OCRE concludes that if the detailed documents are not provided to the NRC, the information is not available to the public.

Wisconsin Electric contends that Generic Letters and Bulletins normally require licensees to provide specific commitments to perform requested actions or reasons why the requested action is unnecessary. Following implementation, licensees are normally

Mr. John c. Hoyle, Acting Secretary September 2, 1994 Page 3 required to inform the NRC that the actions committed to are complete. The NRC then verifies through their inspection process that the actions taken meet commitments and are adequate.

While it is true that detailed analyses are seldom provided, licensees.' responses, as well as the NRC's evaluation as to the adequacy of the action through the inspection process, are public documents and are available through the NRC's Public Document Room.

OCRE's petition further asserts that the NRC has encouraged licensees to relocate many Technical Specification requirements to other internal plant documents which may not bs available to the public. Wisconsin Electric contends that Technical Specification requirements that are being endorsed by the NRC for relocation to other documents are normally required by the NRC's regulations.

Relocation of the specific requirements does not reduce the requirements on the licensee. Many of the documents to which the requirements are being relocated, including the Emergency Plan, Final Safety Analysis Report, and Off-Site Dose Calculation Manual are public documents and are available through the Public Document Room. Again, compliance with the requirements is evaluated by the NRC and documented in inspections reports which are also available to the public.

The existence of licensee documentation retained on-site and the requirement to make it available for NRC audit a~d review must be viewed in light of the NRC's responsibility of ensuring the safe operation of nuclear power plants and protecting the public health and safety. To this end, the public must recognize and accept that the NRC represents the public interest pursuant to the mandate from Congress in the Atomic Energy Act. OCRE has provided no evidence that its suggested changes are necessary to ensure that the NRC responsibly represents the public through its regulation and review processes.

The NRC Lacks statutory Authority to Implement OCRE's Requested Action OCRE's petition essentially asks the NRC to unilaterally modify the Freedom of Information Act by making it applicable to entities other than government agencies and to records other than those within a government agency's control. Such a modification would compromise sensitive and proprietary business information as well as the regulated entity's ability to e:1gage in business activities.

Wisconsin Electric believes that the Freedom of Information Act is intended to balance competing public, private, and government interests and was not intended to provide the public with

Mr. John C. Hoyle, Acting Secretary September 2, 1994 Page 4 unrestricted access to any document held by any entity subject to government regulation, thus compromising its business prerogatives and creating an undue burden of cost and administration.

Wisconsin Electric believes that the Nuclear Energy Institute has cited sufficient legal precedent in its arguments to demonstrate that no existing point of law provides the NRC with the authority to mandate public disclosure of licensee-held documents. As such, the NRC lacks the statutory authority to grant OCRE's petition.

summary Wisconsin Electric Power Company supports public participation in the regulatory process and understands the public's right to obtain information regarding the regulated activities of NRC licensees as provided for under existing statutes and regulations. Wisconsin Electric believes that the amendments requested in OCRE's petition for rulemaking are not within the NRC's statutory authority, would require the disclosure of an unreasonable broad range of documenta-tion, and impose an excessive administrative burden on licensees.

Wisconsin Electric also bel~.eves that the existing disclosure process and regulatory requirements are adequate to ensure that the necessary information is available to the public to allow for their meaningful participation in the regulatory process. For these reasons, Wisconsin Electric concludes that the proposed rule is not necessary to facilitate either public participation in the regulatory process or the public's ability to obtain information necessary for their meaningful participation. Therefore, Wisconsin Electric respectfully requests that the NRC deny Ohio citizens for Responsible Energy's petition for rulemaking in its entirety.

Should you have any questions or require additional information regarding our comments, please contact Douglas Johnson at

{414)221-2084.

Sincerely,

<rZ/U Bob Link Vice President Nuclear Power DLB/jg cc: NEI

D CKET NUMBER r

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e Boston Edison (S't:t Ff?, 3<73~) DOCKETED USHRC Pilgrim Nuclear Power Station Rocky Hill Road Plymouth, Massachusetts 02360 *94 SEP -8 P2 :37 OFFICt OF SECRETARY E. T . Boulette, PhD August 30 q(s§ij ETlt 'G ,~ S::.r.**J!CE Senior Vice President - Nuclear BECo Ltr.94-092 BRANCH John C. Hoyle, Acting Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTENTION: Docketing and Service Branch Boston Edison Company Comments on the Petition for Rulemaking by Ohio Citizens for Responsible Energy, PRM-9-2, 59 FR 30308, dated June 14, 1994

REFERENCE:

Nuclear Energy lnstitute's Comment Letter Dated August 29, 1994

Dear Mr. Hoyle:

The petition for rulemaking submitted by Ohio Citizens for Responsible Energy requests that the NRC amend its regulations, 10 CFR 9, to provide public access to a broad range of documents maintained by licensees, but not submitted to the NRC.

Boston Edison Company has reviewed this petition for rulemaking and wishes to record its strong opposition. The public laws cited in the petition, namely, the Freedom of Information Act, Privacy Act and the Sunshine Act do not provide a statutory basis for granting requested access to a broad range of documents that are not in the possession of the affected federal agency. We find that the petition lacks statutory basis within the requirements of the Atomic Energy Act as well. The NRC, in the interest of the public health and safety, can, if necessary, already obtain any and all information within the scope of the license conditions. To grant the request of OCRE would impose excessive burden on licensees, constitute an interference and intrusion in the licensee conduct of commerce, and is unwarranted as a matter of public policy.

The Nuclear Energy Institute on behalf of the commercial nuclear industry has provided comments in the referenced letter. Boston Edison Company endorses NEI comments, and requests the NRC to deny the petition in its entirety.

Thank you for providing an opportunity for our comments.

t-,~ 0 ~'Ht.

E.T. Boulette, PhD WUlam/RAP94/ocre SEP 2 8 1994.

Acknowledged by card ...................." .....".-

IQ :f! I Pennsylvania Power & Light Com }{ ETED Two North Ninth Street

• Allentown, PA 18101-1179

• 610/ 774-~ .1 i qr.

• 94 SEP - 7 P3 :25 Robert G. Byram Senior Vice President-Nuclear

, q ~ 2.___

610/774-7502 Fax: 610/774-5019 {_ 5 1 F R 3 o J oct)

AUG 31 1994 Mr. John C. Hoyle, Acting Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20555 ATIN: Docketing and Service Branch SUSQUEHANNA STEAM ELECTRIC STATION COMMENTS TO "Omo CITIZENS FOR RESPONSIBLE ENERGY: PETITION FOR RULEMAKING (PMR-9-2) Docket Nos. 50-387 PLA-4193 FILE R41-2/A17-11 and 50-388

Dear Mr. Hoyle:

Pennsylvania Power and Light Company (PP&L) endorses the comments submitted by the Nuclear Energy Institute (NEI) for the Federal Register notice concerning the Petition for Rulemaking (PMR-9-2) submitted by the Ohio Citizens for Responsible Energy (OCRE) requesting that NRC revise its regulations (1 0CFR9) to provide public access to information that is held by licensees but not submitted to the NRC (59FR30308). PP&L along with NEI urges NRC to deny OCRE's petition in its entirety.

PP&L's comments, which are similar to those being submitted by NEI, are as follows:

• PP&L believes that NRC's responsibility is to perform an oversight function to ensure the safe operation of nuclear power plants to protect the public health and safety. NRC therefore to a large degree represents the public interest. OCRE provides no evidence that the suggested changes to 10CFR9 are necessary to ensure that the NRC responsibly represents the public or that additional public oversight of the NRC and their licensees, through massive document requests, is necessary to further public health and safety.

I 1 /'1L-

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FILES R41-2/Al 7-11 PLA-4193 Mr. John C. Hoyle

• PP&L believes that NRC does not have the statutory authority to mandate public disclosure of licensee-held documents. The three Acts (The Freedom of Information Act, The Privacy Act and The Government in the Sunshine Act) which allow for public disclosure of information prevent NRC from granting OCRE's petition.

• Existing statutory and regulatory mechanisms reflect a sound public policy for determination of the most appropriate balance between the public's "right to know" and the rights of private entities (NRC licensees) to conduct their business.

• NRC has recognized that in some areas it is not necessary for licensees to provide the NRC with specific data, but rather that this data be maintained at the licensee's facility. This position remains appropriate and should be maintained.

• The proposed petition would create a significant administrative and cost burden to licensees to implement without a substantive corresponding benefit to the public.

PP&L appreciates the opportunity to comment on the OCRE petition (PMR-9-2).

Very truly yours,

• %.L-- am --------

cc: NRC Document Control Desk (original)

NRCRegionl Mr. D. J. Mannai, NRC Resident Inspector - SSES Mr. C. Poslusny, Jr., NRC Sr. Project Manager

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• NTD-NRC-94-4279 Westinghouse Energy Systems Nuclear Technology Division Electric Corporation '94 SEP -6 P3 :27 Box 355 Pittsburgh Pennsylvania 15230-0355 OFFICE uf '.::EU,:E TARY DOC KETING & ~:ERVICEAugust 29, 1994 BRANC H Mr. Samuel J. Ch ilk, Secretary U. S. Nuclear Regulatory Commission Attn: Document Control Desk Washington, DC 20555

- Attention: Docketing and Service Branch

SUBJECT:

Docket #PRM-9-2; Ohio Citizens for Responsible Energy, Inc. ; Receipt of Petition for Rulemaking (59 Fed. Reg. 30308, June 13, 1994)

Dear Mr. Ch ilk:

Westinghouse Electric Corporation ("Westinghouse") files these comments in response to the Notice of Receipt by the U.S. Nuclear Regulatory Commission ("NRC") of a Petition for Rulemaking filed by the Ohio Citizens for Responsible Energy ("OCRE"). In its Petition, OCRE requests amendments to NRC regulations in 10 CFR Part 9 to provide for a public right of access to licensee-held information. Westinghouse urges the NRC to deny the OCRE Petition in its entirety.

Comments opposing the grant of the OCRE Petition have been filed on behalf of the commercial nuclear power industry by the Nuclear Energy Institute ("NEI"), of which Westinghouse is a member.

Westinghouse fully supports the comments submitted by NEI. Westinghouse agrees with NEI that 1) the NRC lacks statutory authority to implement OCRE's requested action; 2) public policy considerations do not provide support for OCRE's requested action; and 3) OCRE's suggested amendments to 10 CFR Part 9 would impose an excessive administrative and cost burden on licensees and the NRC. The purpose of these comments by Westinghouse is to support the NEI position and to provide additional insights from the perspective of Westinghouse as a major nuclear reactor designer, manufacturer and vendor, the possessor of various NRC licenses and an applicant for design certification for the AP-600 Advanced Passive Nuclear Power Plant.

The rule proposed by OCRE would provide for the disclosure of internal records possessed by any NRC licensee or applicant for a license unless such records had "absolutely no relevance" to any activity, facility or material licensed or regulated by the NRC or unless such records fell within certain exempt categories such as personnel, proprietary or safeguards information. Records are broadly defined in the proposed regulation to include every type of documentary and non-documentary material. Literally, millions of records would fall within the scope of the proposed rule and would be subject to disclosure. Demands on the resources of the possessors of such records, and on the NRC in implementing the proposed rule, could involve substantial time and effort and would have the detrimental effect of diverting attention away from issues deemed by the NRC to be important to public health and safety. As such, the proposal should be viewed not only on the basis 1366C-BZC-1 :082994 SEP 2 8 1994 AcL:r1owledged by card ..................................

. NUC~~' - ':.-3 , ..,\"7"0RY COMMISSION DO': : 1'-...;, & ,~ERVICE SECTION 0, FiCt- Of- THE SECRETARY OF THE COMMISSION Dr<;ur,,ent Statistics

of the legal issues involved, but also in the context of the NRC policy on cost beneficial licensing actions. To impose a new regulatory requirement on licensees which would consume industry and NRC resources, at great cost, and provide no safety benefits would be directly contrary to the NRC's current policy to reduce unnecessary regulatory requirements.

In attempting to set forth a need for the rule it is proposing, OCRE claims that it has observed a trend in NRC regulatory practice in the past several years which allegedly is decreasing the amount of information to which the public has access. OCRE claims that this trend "makes the operating nuclear power plant even more of a 'black box'". To support its underlying premise, OCRE cites various examples of NRC bulletins, generic letters and plant specific communications, and complains that such bulletins, letters and communications only require licensees to provide conclusory statements to the NRC while keeping detailed records demonstrating compliance at the site where only the NRC has access to them.

At no point in its statement of position does OCRE acknowledge the fact that the public has access under the Freedom of Information A1.::t to all non-exempt agency records, including all of the voluminous information currently submitted by licensees to the NRC and placed in the public record.

As the NRC is aware, such communications are extensive, and include: communications by licensees and the NRC such as, requests for license amendments and exemptions, NRC inspection reports and responses to such inspection reports, and notices of violations and responses; periodic updates of information contained in FSARs; all safety evaluations performed by the licensee either in support of requested license amendments or in support of conclusions that changes did not involve unreviewed safety questions; and all analyses of safety issues performed by or on behalf of the licensee including at the NRC's request. Documents available to the public also would include communications of all emergency and one and four-hour non-emergency event reports, 30-day follow-up reports, reports of defects and failures to comply required by 10 CFR Part 21 and all other reports provided to the NRC by licensees, as well as all NRC-generated documentation relating to such material. In addition, information submitted to the NRC by vendors such as Westinghouse (including the above noted information as applicable), as well as reports from national laboratories and numerous other sources, are part of the publicly available information in the possession of the NRC.

An examination of the examples given by OCRE to support its "black box" theory discloses that in each case although not pointed out by OCRE, there is voluminous information in the possession of the NRC and hence publicly available in accordance with the current provisions of 10 CFR Part 9. The first example given by OCRE of a communication to support its "black box" theory, is IE Bulletin 88-07, "Power Oscillations at Boiling Water Reactors (BWRs)," June 15, 1988. The OCRE Petition would suggest that because this IE Bulletin contains a reporting requirement that licensees confirm by letter that requested actions have been completed and implemented and that licensees maintain certain documents supporting such confirmation, the only information available to OCRE with respect to the issue addressed in IE Bulletin 88-07 is the Bulletin itself. However, a review of this matter discloses the following information on the topic available to the public:

o The NRC staff evaluated thermal-hydraulic stability as Generic Issue B-19, and recommended closure actions for resolution of that issue in Generic Letter 86-02, "Long-Term Solutions to Thermal-Hydraulic Instabilities in Boiling Water Reactors" .

o Information Notice 88-39, issued the same day as Bulletin 88-07, described a March 9, 1988 LaSalle Unit 2 instability event reported by the licensee. Additional details of this event were documented by the NRC augmented inspection team in Inspection Report No. 50-373/88008 and 50-374/88008.

1366C-BZC-2:082994

o On October 28, 1988, the General Electric Company ("GE") notified the NRC under 10 CFR Part 21 that thermal margins might not be sufficient. In November 1988, GE issued a letter to BWR licensees entitled "Interim Recommendations for Stability Actions" .

o Based on the GE report, the NRC on December 30, 1988, issued Supplement 1 to Bulletin 88-07, approving proposed interim operating recommendations and stating additional conditions.

o In June 1991, the BWROG issued a report documenting proposed long-term solutions to the stability issue and supporting methodologies. (A supplement was issued in March 1992.)

o In October 1992, Washington Nuclear Power Unit 2 ("WNP-2 ") reported power oscillations during startup.

0 On November 10, 1992, the NRC issued Information Notice 92-74, "Power Oscillations at Washington Nuclear Power Unit 2", describing the WNP-2 event.

0 In July 1993, the NRC issued its safety evaluation of the BWROG report and the March 1992 supplement referred to above.

o On July 11, 1994, based on insights gained from the WNP event, the NRC issued Generic Letter 94-02 requesting certain licensees to develop and submit to the NRC a plan for long term stability corrective actions, including design specifications for any hardware modifications or additions, a description of the action proposed and the schedule for such action, as well as the need for technical specification modifications.

Interestingly, the OCRE Petition fails to mention any of the above material relating to the issue involved in IE Bulletin 88-07, although the above material clearly is publicly available under 10 CFR Part 9. With the above kinds of information available to the public, the characterization with respect to this issue of an operating nuclear power plant as a "black box" is totally inaccurate.

A similar review of the other bulletins, generic letters and plant specific analyses referenced by OCRE as the bases of its petition also would disclose that the public records at the NRC contain substantial documentation and information on each of the items cited. Thus, OCRE's suggestion that it needs to have access to records in the possession of licensees, which the NRC itself has not deemed necessary to be submitted by licensees and applicants for licenses, in order to determine what is in the "black box" has no foundation in fact.

OCRE, citing Union of Concerned Scientists v. NRC, 735 F.2d 1437, (DC Cir. 1984), claims that members of the public need access to records which the NRC has not deemed necessary to be submitted to it, in order to fulfill their role in connection with the "statutory right to participate in the NRC regulatory process" . The role referred to by OCRE and being addressed by the court in the Union of Concerned Scientists case was the provision in Section 189(a) of the Atomic Energy Act which provides for public participation in public hearings. OCRE claims that the 1989 revisions to the NRC rules of practice (54 Fed. Reg. 33168, August 11 , 1989) place an even greater burden on public petitioners to provide as much documentation and factual basis for contentions as early as possible while access to detailed information is diminishing. First, as explained above, we disagree that access to detailed information is diminishing. Second, OCRE mischaracterizes the requirements of the 1989 revisions and overstates the effect of not having access to the records they seek. The NRC considered this in the course of their deliberations on the revised rule and, in its statement of considerations which accompanied the publication of the revised regulation, stated:

1366C-BZC-3:082994

The Commission disagrees with the assertions that the proposed amendments are unduly burdensome and so restrictive that it will be virtually impossible for persons to have safety contentions admitted to an NRC proceeding. Under these new rules an intervenor will have to provide a concise statement of the alleged facts or expert opinion which support the contention and on which, at the time of filing, the intervenor intends to rely in proving the contention at hearing, together with references to the specific sources and documents of which the intervenor is aware and on which the intervenor intends to rely in establishing the validity of its contention. This requirement does not call upon the intervenor to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time which provide the basis for its contention.

. . . The new rule will require that a petitioner include in its submission some alleged fact or facts in support of its position sufficient to indicate that a genuine issue of material fact or law exists. 54 Fed. Reg. 33168, 33170, August 11, 1989.

It is clear that public information currently exists for intervenors to specify facts sufficient to state an admissible safety contention in an on-going NRC proceeding without resort to the means proposed by OCRE. Moreover, although discovery is not available to members of the public until they have been admitted as parties to one of the NRC proceedings set forth in Section 189(a) of the Act, discovery is available to an admitted party to proceedings, i.e., one with demonstrated legal standing to develop the facts relevant and necessary to support his case. In this regard, the Commission in its statement of considerations went on to say:

However, the rule will require that before a contention is admitted the intervenor have some factual basis for its position and that there exists a genuine dispute between it and the applicant.

It is true that this will preclude a contention from being admitted where an intervenor has no facts to support its position and where the intervenor contemplates using discovery or cross-examination as a fishing expedition which might produce relevant supporting facts. The Commission does not believe this is an appropriate use of discovery or cross-examination. BPI

v. Atomic Energy Commission, 502 F.2d 424, 429 (DC Cir. 1974). The Commission believes it is a reasonable requirement that an intervenor be able to identify some facts at the time it proposes a contention to indicate that a dispute exists between it and the applicant on a material issue.

OCRE also has no legal right to obtain the records which it seeks to make available to the public as such records cannot be obtained under the Freedom of Information Act ("FOIA") because they are not agency records. This is the case even though the NRC has the right to obtain them. The Supreme Court considered this matter in Forsham v. Harris, 455 U.S. 169, 180 and held as follows:

As we hold in the companion case of Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267, it must be established that an "agency" has "improperly withheld agency records" for an individual to obtain access to documents through an FOIA action. We hold here that HEW need not produce the requested data because they are not "agency records" within the meaning of the FOIA. In so holding, we reject three separate but related claims of petitioners: (1) the data they seek are "agency records" because they were at least "records" of UGDP, and UGDP in turn received its funds from a fed eral agency and was subject to some supervision by the agency in its use of those funds; (2) the data they seek are "agency records" because HEW, concededly a federal agency, had sufficient authority under its grant agreement to have obtained the data had it chosen to do so; and (3) the data are "agency records" because they formed the basis for the published reports of UGDP, 1366C*BZC*4:082994

which in turn were relied upon by the FDA in the actions described above. Forsham v. Harris, 455 U.S. 169, 177, 1980 .

. . .With due regard for the policies and language of the FOIA, we conclude that data generated by a privately controlled organization which has received grant funds from an agency (hereafter a grantee), but which data has not at any time been obtained by the agency, are not "agency records" accessible under the FOIA. Forsham v. Harris, 455 U.S. 169, 178, 1980.

Finally, OCRE would have the NRC completely reverse its long-standing policy and process to promulgate a right to engage in unlimited discovery against non-governmental entities without the benefit of any NRC proceeding. We are unable to find any authority for the NRC to require records generated by a private organization which have not first been obtained by the agency (pursuant to its legally authorized mandate) to be handed over to members of the public for what is obviously intended as a fishing expedition.

For all of the above reasons and for the reasons set forth in the NEI comments, Westinghouse, while fully supporting the public's right to information as it currently exists under NRC law and regulation, respectfully requests that the NRC deny the OCRE Petition. Westinghouse appreciates the opportunity to comment on this matter and would be pleased to discuss these comments further with the Commission or members of its staff.

Sincerely, ctfl114:ger Nuclear Safety Regulatory and Licensing Activities 1366C-BZC-5:082994

e Commonwealth Edison 1400 Opus Place Downers Grove, Illinois 60515 DOCKET NUMBE PETITION RULE PAM (s-CfF~30308)

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~

DOCKETED USf1f>C August 29, 19'94 SEP -6 P3 :27 OFF CE~I'OFI~ :)..:_* PF*- *,,T!'-,.r,...,-Y DOCKE_ I 1bt.L: ,~1 iL,t Secretary of the Commission BRAH~H U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Services Branch

Subject:

Braidwood Station Units 1 and 2 Byron Station Units 1 and 2 Dresden Station Units 1,2, and 3 LaSalle County Station Units 1 and 2 Quad Cities Station Units 1 and 2 Zion Station Units 1 and 2 Commonwealth Edison Company Response to the Ohio Citizens for Responsible Energy, Inc. Receipt of Petition for Rulemaking, Federal Register Vol. 59, No. 112, Pages 308-310 NRC Dockets 50-454 and 50-455 NRC Dockets 50-456 and 50-457 NRC Dockets 50-10, 50-237 and 5Q-249 NRC Dockets 50-37 3 and 50-374

References:

NRC NRC (1)

Dockets Dockets 50 - 25 4 50-295 and 50-265 and 50-304 Federal Register Vol. 59, No. 112, Pages 308-310, Citizens for Responsible Energy, Inc.

Receipt of Petition for Rulemaking Commonwealth Edison appreciates the opportunity to comment on the subject proposed rulemaking. Commonwealth Edison fully supports the industry position as delineated in the comments provided by the Nuclear Energy Institute and the Nuclear Utility Backfitting and Reform Group. In support of the general assessment which these organizations have made of the proposal's impact, Commonwealth Edison provides the following specific impact based on experience with comparable broad opportunities to request internal documents.

k :/dave/ocre.wpf /1 SEP 2 8 1994 Ack:1ov1!edged by card ................._. ....._

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Docketing and Services Branch (2) August 29, 1994 For the reasons detailed below, Commonwealth Edison has determined that the cost of compliance with the proposal would be particularly onerous if it were required to dedicate resources to the proposed effort. Such costs cannot be justified, especially where, as here, they do not result in any substantial benefit to public health and safety. Based on the costs currently incurred to respond to data requests from the Illinois Commerce Commis s ion, ComEd estimates that it would cost between $1500 and

$3000 to respond to each data request. These cost estimates assume that a dedicated staff i s in place to respond to the significant numbers of requests that ComEd expects. In an environment that would be open to literally hundreds of such requests for each of our six operating stations, the commitment in resources could be both substantial and difficult to manage.

ComEd could easily spend in excess of a million dollars per year to comply with the document requests that would be authorized under this proposal. Accordingly, ComEd strongly opposes the proposal.

I f there are any questions or comments, please contact me at (708) 663-7292.

Sincere ly ,

. Vonk Generic Issues Administrator Nuclear Regulatory Services cc: J. Martin, Regional Administrator-RIII R. Capra, Director of Directorate III, NRR G. Dick, ComEd Generic Issues Project Manager, NRR k: /dave/ ocre.wpf /2

107 Selden Street, Berlin, CT 06037 Northeast Utilities System Northeast Utilities Service Company DOCKE TED P.O. Box 270 US~' r.

I Hartford, CT 06141-0270 (203) 665-5000 D 1C / T NUMBER

'94 SEP -2 P 2 :46 p I l';N RULE PAM q--2_

OFF ICL Gr :::.::rJ'.~EA 1*' st 29, 1994 (5"1 f R 303oi) 00C KE fl~:: ~ "*:*R\ k[

ek: C'ti Docke t Nos. 50-213 50-245 50-336 50-423 50 -443 B14959 Mr. Samuel J . Chilk Secretary of the Commission U. S. Nuclear Re gulatory Commission Washington, D.C . 20555 Attention: Docketing and Service Branch

Dear Mr. Chilk:

Haddam Neck Plant Millstone Nuclear Power Station, Unit Nos. 1, 2, and 3 Seabrook Unit No . 1 Ohio Citizens for Responsible Energy , Inc.

Petition for Ru l e ma ki ng (Doc ke t No . PRM 2 )

On June 13, 1994, the Nuclear Regulatory Commission (NRC) published for public comment in the Federal Register n > a notice of receipt of a petition for rulemaking , dated February 10, 1994, that was filed by the Ohio Citizens for Responsible Energy, Inc.

(OCRE) . On or about April 9, 1994, OCRE submitted to the NRC an amendment to its earlier petition.

Northeast Utilities (NU) fully supports and endorses the comments that the Nuclear Energy Institute (NEI) is providing on OCRE's petition, including NEI's request that the NRC deny the pet i t i on for rulemaking in its ent i rety. We are

• submitting these additional comments , on behalf of the Haddam Neck Plant ,

Millstone Units 1, 2 and 3, and Seabrook Unit No. 1, to provide (1) 59 Fed. Reg. 30306 .

OS3i22 REV. t-9-t SEP 2 8 19~

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s. NUC' - . . -'-' .TOi-lY co~~MISSION DOC"- * '. u ;.; ,' RVICE SECTION OFF- CE : . ,E: ~f::CRfTI\RY OF THE COM,,llS ... ION

U.S. Nuclear Regulatory Commission Bl4959/Page 2 August 29, 1994 the NRC with NU' s experience and concerns regarding internal self-assessment documents which would be -publicly disclosed if OCRE's petition is granted.

Very truly yours, CONNECTICUT YANKEE ATOMIC POWER COMPANY NORTHEAST NUCLEAR ENERGY COMPANY NORTH ATLANTI ENERGY SERVICE COMPANY

.r

- cc:

J. F. Opeka Executive Vice President T. T. Martin, Region I Administrator A. B. Wang, NRC Project Manager, Haddam Neck Plant J. w. Andersen, NRC Acting Project Manager, Millstone Unit No. 1 G. s. Vissing, NRC Project Manager, Millstone Unit No. 2 V. L. Rooney, NRC Project Manager, Millstone Unit No. 3

w. J. Raymond, Senior Resident Inspector, Haddam Neck Plant P. D. Swetland, Senior Resident Inspector, Millstone Unit Nos. 1, 2, and 3 A. w. DeAgazio, NRC Project Manager, Seabrook Unit No. 1 A. C. Cerne, Senior Resident Inspector, Seabrook Station

Northeast Uti1ities Comments On Ohio Citizens for Responsib1e Energy, Inc.

Petition for Rul.emaking (Docket No. PRM-9-2)

INTRODUCTION Licensees are currently obligated to file extensive reports and analyses with the NRC, and those documents are publicly available pursuant to 10 CFR Part 9. The existing regulations prescribe detailed procedures for accessing NRC agency records for inspection and copying under the Freedom of Information Act 2

(FOIA) < >. NU believes that the existing regulations strike, an appropriate balance between the public's right to know and the licensee's need to protect certain documents from public disclosure.

OCRE's petition seeks a significant change to the existing rules regarding public access to information related to activities, facilities, or materials licensed or regulated by the NRC. OCRE requests that the NRC amend 10 CFR Part 9 to permit public access to a broad range of licensee-held information that has not been submitted to the NRC, including internal self-evaluative investigations and studies that **are used to identify and prevent the recurrence of operational issues. NU believes that granting what would essentially be unlimited access to licensee self-assessments could have an adverse effect on the public health and safety.

(2) 5 u.s.c. §552.

DISCUSSION A. OCRE's Petition Would Subject Virtually All Documents Held By Licensees To Public Disclosure OCRE requests that the NRC amend 10 CFR Part 9 by adding Subpart E, entitled "Public Right of Access to Licensee-Held Information." Section 9.300 of the proposed subpart would establish the public's right to know and grant the public access to copies of internal plant documents, subject to a narrow exception that the petitioner deems necessary to protect 3

"sensitive information". < > The exception would allow a licensee to refuse to disclose the requested records only if one or more 4

of certain enumerated criteria are met. < >

NU is extremely concerned that under OCRE's proposed regulations, virtually all of a utility's nuclear records would be subject to public disclosure. Particularly troubling is the fact that no clear exception has been provided for the class of internal self-assessments whose preparation is of vital importance to ensuring the public health and safety. <!I> As discussed below, disclosure of such documents is likely to have exactly the opposite effect from that asserted by OCRE.

(3) OCRE Petition at 4.

(4) OCRE Proposed Section 9 .. 304 (b) (5).

(5) If the NRC does not deny OCRE's petition in its entirety, it should at least make clear that a licensee's self-critical assessments constitute "sensitive information" and, therefore, are exempt from public disclosure under the exception contained in the rules proposed by OCRE.

B. The NRC Should Deny OCRE' s Petition Because Granting Unlimited Access to Licensee Information Could Adversely Affect the Public Health and Safety As the NRC is aware, nuclear safety is substantially enhanced by the existence at each licensed facility of an aggressive internal assessment process that produces thorough and candid analyses of plant information and events. Industry experience has repeatedly proven that such an effective self-assessment process is an essential component of any successful nuclear organization. For the nuclear industry to continue to reap the benefits of the self-evaluative process, it must be encouraged to proceed without fear that the documents produced will be used for purposes other than that for which they were intended.

NU is concerned that unfettered public disclosure of internal self-critical analyses could lead to their misuse in various forums by groups and individuals who seek to impose an economic disallowance on nuclear licensees. Such misuse wbuld directly affect the process of evaluating operational and safety issues at our nuclear power plants. If employees responsible for performing self-assessments believe that their reports may be used against their company in another forum, that belief is likely to have an adverse effect on the frank and thorough nature of these evaluations. Any diminution in the candor of these internal self-assessments would ultimately have a detrimental impact on the public health and safety.

- 3 -

C. Licensee Self-Assessment Documents Have The Potential To Be Misused In State Ratemaking Proceedings Licensee self-assessments could potentially be misused in a number of different forums and contexts, including civil litigation. These comments, however, are drawn from NU's experiences with attempts by intervenors, consumer advocates and others to obtain licensee self-assessment documents for use as evidence of imprudence in state economic regulatory proceedings.

The NU system companies have been involved, in the past several years, in a number of* investigations of the reasonableness or "prudence" of their nuclear operations before economic regulatory agencies in Connecticut, New Hampshire and Massachusetts, the three jurisdictions in which our operating companies conduct business. Various participants in these proceedings have sought access to internal self-assessments, with the intention of taking any conclusory statements that they may contain out of context and citing them as "admissions" of fault by the licensee. Such "admissions" can then be asserted as the basis for a disallowance of cost recovery through rates.

This technique is inappropriate, from a legal _ standpoint, because the documents at issue are intentionally prepared based on hindsight analysis. Thus, the documents do not meet the appropriate legal standard for a prudence investigation, which requires a review of utility decision-making based on what management knew or should have known at the time the decision or action was taken. By misusing self-assessments in this manner, such participants are able to short-circuit the prudence review process and unfairly penalize a utility and its shareholders.

D. Recently, There Has Been An Increased Recognition of The Potential Misuse Of Self-Assessments In recent years, the NRC has recognized the potential impact of economic disallowances on the public health and safety, and expressed its own concern over the misuse, for economic re~latory purposes, of licensee self-assessments and the corrective actions that they describe. For instance, the NRC stated in its own policy statement concerning economic performance incentives that:

The Commission is concerned about State public utility commission ratemaking actions that might be interpreted as penalizing a utility for improving its own procedures or methods of operation. For example, where a State public utility commission observes (after reviewing the documents discussed above) that a utility has modified its procedure fallowing an incident, infers from the utility's actions that the original procedures must have been inadequate, and then disallows certain costs on the basis of such assumed inadequacies, the utility will have a strong disincentive in the future. Such State public utility commission action can discourage utilities from making needed improvements in procedures and operations and, thus, can be detrimental to the long-term safety of operation. <6 >

The NRC should recognize that OCRE's request, if granted, would facilitate the kind of actions that it has publicly disapproved.

( 6) Nuclear Regulatory Commission, Possible Safety Impacts of Economic Performance Incentives; Final Policy Statement, 56 Fed. Reg. 33,947.

- 5 -

In a number of instances, NU has faced this issue with our economic regulators. As NU has previously reported to the NRc< 7 >, we have been generally successful in protecting such documents from public disclosure in nuclear prudence proceedings.

For example, the Connecticut Department of Public Utility Control has recognized the risks associated with disclosure of self-assessment documents prepared by NU's Nuclear Safety Engineering Group and, therefore, has denied repeated requests for their production by the consumer advocate in that jurisdiction. The New Hampshire Public Utilities Commission has protected comparable materials from discovery, instead allowing NU to prepare and provide detailed summary reports on significant plant outages or power reductions as an alternative to disclosing the underlying documents.

OCRE's proposal contradicts a recent trend in similar settings to shield the results of internal audits and investigations from public disclosure in recognition of the importance the self-assessment process. Increasingly, both state legislatures and courts have recognized that it is appropriate to establish a legal privilege that would protect environmental 9

audits from public disclosure. < > In the employment context, the (7) J. F. Opeka letter to J. R. Curtis, Economic Regulation, dated April 28, 1993 and J. F. Opeka letter to I. Selin, Final Policy Statement on Possible Safety Impacts of Economic Perfomance Incentives Nuclear Safety Engineering Group Evaluations, dated April 5, 1993.

(8) See Exhibit 1 attached, National Law Journal, Environmental Reviews Can Be Kept Confidential, June 20, 1994.

- 6 -

U.S. District Court for the Southern District of New York recently held that a confidential report prepared for a company by an outside consultant concerning gender bias within the company was protected from discovery by a woman suing the company 9

for sex discrimination. < > After reviewing the confidential report, the court held that dissemination of the report, even in a redacted form, would have an effect on the future willingness of employees at the company and other firms to speak candidly about sensitive topics, and that such studies are to be encouraged as a matter of public policy. The court recognized the existence of a legal privilege against such disclosure, which applies where an "intrusion into the self-evaluative analyses of an institution would have an adverse effect on the process, with a net detriment to a cognizable public interest." NU believes that the principles and concerns articulated by the court in this case are equally applicable to the nuclear licensee self-evaluation process .

. OCRE asserts that its proposed amendment would impose a minimal burden on licensees, and that this minor burden is justified by the substantial increase in meaningful public participation that it would permit. OCRE then states that the amendment strikes a proper balance between the public's right to know and the rights of licensees. _Superficially, such disclosure may seem laudable, but in reality it can produce unexpected and (9) Flynn v. Goldman, Sachs & Co., 1993 WL 362380 (S.D.N.Y. September 16, 1993).

J undesirable results. Importantly, OCRE ignores completely the potential adverse effect that public disclosure of self-assessment documents would have on the self-improvement process.

NU recognizes that there is a legitimate public interest in accessing information related to the regulated activities and operations of NRC licensees. However, Congress has, in enacting FOIA, struck the appropriate balance between public disclosure of such information and the legitimate interest of the regulated community. As the foregoing discussion has shown, the presumed benefits to be gained by increasing such access to the degree proposed by OCRE are greatly outweighed by the harm that would result to important public health and safety interests.

CONCLUSION OCRE' s petition would provide for public disclosure of a licensee's internal self-assessment documents. If publicly available, these documents could then be freely used in adversarial proceedings, in~luding prudence inquiries, by parties whose only agenda is to assign fault and impose an economic disallowance on utilities. NU believes that such use would have a negative effect on the preparation of these self-assessments.

The net effect would be to undermine a licensee's efforts aimed at preventing recurrence of problems, enhancing nuclear safety, and achieving operational excellence.

- 8 -

The NRC should act to prevent any threatened intrusion on the self-evaluation process that would limit the industry's ability to realize the significant benefits of candid self-analysis. NU respectfully requests that, as a matter of public policy, the NRC deny the OCRE petition in its entirety.

- 9 -

I

ROBE R T E. D ENTON Baltimore Gas and Electric Company Vice President Calvert Cliffs Nuclear Power Plant Nuclear Energy 1650 Calvert Cliffs Parkway Lusby, Maryland 2o657 410 586-2200 Ext. 4455 Local 410 260-4455 Baltimore OF . If' -* r,1 ~ '

0( . l : ~ I DO r<E f NUMBER q 1noN RULE PRM -2 (sq FR3t'J30~

August 26, 1994 Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, DC 20555 ATTENTION: Docketing and Service Branch

SUBJECT:

Calvert Cliffs Nuclear Power Plant Unit Nos. 1 & 2; Docket Nos. 50-317 & 50-318 Comments on the Ohio Citizens for Responsible Energy, Inc. Petition for Rulemaking (59 FR 3 0310)

The Baltimore Gas and Electric Company has the following comments on the Ohio Citizens for Responsible Energy, Inc. (OCRE) request that the NRC change the regulations to establish public right-to-know provisions that would ensure public access to licensee-held information. Their petition proposes a change to 10 CFR Part 9 regarding public access to information. They are particularly concerned about information that is held by licensees but not submitted to the NRC. As described in the Attachment (1),

their petition is weak in three areas:

Little credit is given to publicly-available NRC Inspection Reports which discuss licensee information not submitted to the NRC .

Little credit is given to the fact that most of the information removed from the technical specifications will be transferred to publicly-available documents, such as the Updated Final Safety Analysis Report and the Quality Assurance Plan.

The rule proposed by OCRE does not allow a licensee to charge requestors for the administrative costs associated with providing the infom1ation.

We recommend that the NRC review the petition in light of these three concerns. Baltimore Gas and Electric Company believes these concerns provide sufficient grounds to deny the petition . Additionally, we endorse the comments provided by the Nuclear Energy Institute and the Nuclear Utility Backfitting and Reform Group.

SEP 2 8 1994 Acknowledged by card ............... _.. ,....,

.NUC -

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Docketing and Service Branch August 26, 1994 Page2 Should you have any further questions regarding this matter, we will be pleased to discuss them with you.

Very truly yours, RED/JMO/dlm

Attachment:

As Stated cc: D. A. Brune, Esquire J. E. Silberg, Esquire M. J. Case, NRC D. G. McDonald, Jr., NRC T. T. Martin, NRC P. R. Wilson, NRC R. I. McLean, DNR J. H. Walter, PSC

ATTACHMENT (1)

DETAILED COMMENTS ON OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC. PETITION FOR RULEMAKING The Ohio Citizens for Responsible Energy, Inc. (OCRE) contends that it has observed a trend in the NRC's regulatory practice in the past several years that decreases the amount of information to which the public has access. They believe that this trend is apparent in NRC bulletins and generic letters issued over the past six years. They state that these documents instruct licensees to send statements that the requested actions have been completed instead of instructing licensees to send the NRC detailed documentation and analyses of their actions. They also state that detailed records kept at the plant site are only accessible by NRC inspectors and other appropriate regulatory bodies.

However, OCRE fails to note that NRC Inspection Reports often extensively describe the details of a licensee's response to these bulletins and generic letters. They also fail to note that these inspection reports are publicly available. They have made no clear case for why the public would need a copy of a program or procedure that the NRC, itself, did not need to have docketed in order to conclude whether or not a response was acceptable. Finally, OCRE appears to give no credit to the NRC's full-time onsite inspectors' observation of activities that implement the details of programs and procedures that have only been summariz.ed in responses to bulletins and generic letters. In essence, OCRE is disregarding a large portion of the NRC's oversight of plant activities.

They state their belief that other regulatory trends are also decreasing public access to information. One of their examples is the Technical Specification Improvement Program, which they state encourages the removal of material from the plant technical specifications and the relocation of it to internal plant documents. They fail to state that the only material that can be removed is that which does not focus licensee and operator attention on those plant conditions most important to safety. The Baltimore Gas and Electric Company (BGE) staff currently estimates that 90% of the requirements removed from the plant technical specifications will be relocated to the Updated Final Safety Analysis Report (UFSAR). The UFSAR is a public document which is revised at least once every two years. The remaining 10% will, as a minimum, be described in the publicly-available license amendment request to implement the improved technical specifications. In fact, much of this 10% will be transferred to more appropriate, publicly-available documents, such as the Security Plan, Quality Assurance Plan or Emergency Response Plan.

Changes to requirements relocated from the technical specifications to the UFSAR, Security Plan, Quality Assurance Plan, or the Emergency Response Plan will be controlled by existing regulations. Their concern regarding the Technical Specification Improvement Program appears to be tempered when these clarifications are considered.

The OCRE petition includes a list of recent generic letters that enable licensees to relocate material from the plant technical specifications, a public document, into other plant documents that may not be available to the public. According to OCRE, about 36% of current technical specification material will be relocated to internal plant documents under this program. Again, as described above, BGE expects that more that 90% of the material removed from the technical specifications will be relocated to the UFSAR or other publicly-available documents.

In an amendment to the petition, OCRE cited two additional examples of the lack of public access to licensee-held information. Both examples seem to address the same concern. They appear to want an opportunity to review any document that the NRC inspectors may review. However, in neither example did they describe why they may need to review the information. We can only assume that they need the information to perform a regulatory function independent of the NRC. It was clearly the intent of Congress that the public is to be informed of and allowed to comment on regulatory activities. However, Congress 1

ATTACHMENT (1)

DETAILED COMMENTS ON OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC. PETITION FOR RULEMAKING did not intend the public to be coequal to the NRC in assessing the adequacy of a licensee's response to regulatory issues. Even so, BGE continues to support the notion that the public should have access to those documents that have been determined to be appropriate for public disclosure by the NRC.

According to OCRE, the proposed change to 10 CFR Part 9 would establish the public's right-to-know and provide public access to copies of internal plant documents, except when necessary to protect sensitive information. The proposed change would not require that licensees generate information that does not already exist in response to a request. They believe that their proposed change would strike a proper balance between the public's right-to-know and the rights of the licensees. In actuality, granting their request would radically shift this balance and accomplish nothing meaningful.

Ohio Citizens for Responsible Energy, Inc. also believe that their proposed change to 10 CFR Part 9 would impose a minimal burden on licensees, and that this minor burden would be justified by the substantial increase in meaningful public participation. Their petition disregards a potentially major burden that will be placed on rate payers or stockholders. Specifically, it disregards the administrative burden of fulfilling the request.

Based on our experience with developing the information packages required for NRC inspections, we are confident that the costs for administering these requests could be well in excess of a mere "reproduction" fee. For example, a specific document request could require hours of searching and produce only a single page document. In this case, charging the requestor a few hundred dollars to cover the cost of searching would not be excessive and would provide reasonable compensation for the effort expended by the licensee.

Since the NRC is allowed by 10 CFR 9.23 and 9.39 to charge the public for searching for agency records, it is reasonable that licensees be allowed to charge for conducting document searches, too.

There are many administrative costs associated with information requests by non-regulatory bodies which should not be passed on to rate-payers or stockholders. These costs should be paid by the requestor. These costs include:

• acknowledging, tracking and processing the request in a manner to adequately defend challenges by the requestor that the request was not handled in a timely, adequate or erroneous manner;

• evaluating whether the request may be refused (including consultation with legal staff, as necessary);

• prioritizing the request commensurate with other existing information requests from regulatory or non-regulatory bodies;

• searching for the requested material;

• verifying that identified material meet the requestor's expectations;

• deleting exempt portions of the requested material;

• reproducing the material;

• forwarding the material to the requestor; and

• documenting all of these administrative actions.

2

ATTACHMENT (1)

DETAILED COMMENTS ON OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC. PETITION FOR RULEMAKING It is also reasonable to assess fees to the requestor when searching determines that the requested document is publicly available or when the requested document does not exist or cannot be located. Costs associated with placing the requested information in a public document room and notifying the requestor that it has been placed there should also be paid by the requestor. In observing government responses to Freedom of Information Act requests, our experience has shown these to be very burdensome and expensive.

Finally, in the case where the requestor appeals the licensee's response to a request for information, the OCRE proposes that the burden of proof be placed on the licensee to sustain its actions. We strenuously disagree for the multiple reasons stated above. There is no basis, legal or otherwise, for "shifting the burden of proof." Further, in any instance where a request for information is forced on a licensee, compensation for all reasonable costs associated with having to provide such information should be paid by a requestor prior to compliance with the request. Baltimore Gas and Electric Company, however, further responds by reiterating that OCRE has failed to establish a sound basis for their proposed regulatory change - "shifting the burden of proof' from the requestor (i.e., the plaintiff) to the licensee (i.e., the defendant).

3

DOCKET NUMBER r ITION RULE PRM q- 2_

Glen Allen, (ffjo 5000 Dominion Boulevard (s q FR 3030tl/1 DOC KE TED U NRC

• 94 SEP -1 P3 :46 August 30, 1994 OFFI CE OF SECRETt..RY VIRGINIA POWER DOCKETING & "u: v1r.r BRANCH Secretary to the Commission Serial No. GL 94-020 U.S. Nuclear Regulatory Commission NL&P/GSS RO Attention: Docketing and Service Branch Washington, D.C. 20555

Dear Sir:

COMMENTS ON PETITION FOR RULEMAKING OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC.

10 CFR PART 9 In the June 13, 1994 Federal Register, the NRC requested comments on the petition for rulemaking filed with the Commission by the Ohio Citizens for Responsible Energy, Inc. (OCRE). The petition requests the Commission to amend its regulations to establish public right-to-know provisions that would ensure public access to licensee-held information.

We do not support the petition for rulemaking but rather endorse NEl's comments, which have been separately submitted, regarding the merits of the petition. In addition to the NEI comments in response to OCRE's contention of a trend towards "decreasing the amount of information to which the public has access," we note that reconsideration of reporting requirements is also part of a NRC effort to direct licensee resources and priorities away from activities marginal to safety and apply them to safety significant activities. The OCRE petition is contrary to this policy as it would re-emphasize activities which were de-emphasized as marginal to safety. Furthermore, we believe that administration of the proposed program would be of significant cost and a resource burden.

We appreciate the opportunity to make comments on the petition for rulemaking.

If you have any questions, please contact us.

Very truly yours,

~/J~

M. L. Bowling, Manager Nuclear Licensing and Programs SEP 2 8 1994 Acknowledged by card ..................................

cc: Mr. Robert W. Bishop Nuclear Energy Institute 1776 Eye Street Suite 300 Washington, D. C. 20006-3706 Ms. Ellen Ginsberg Nuclear Energy Institute 1776 Eye Street Suite 300 Washington, D. C. 20006-3706

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Entergy Operations, Inc.

- ENTERGY DOCKE TED PO 8(1X 31995 Jackson, MS 39286-1995 usi*mc Tel 6(.' 1 984 9760 Jerrold G. Dewease

• 94 \IC f' Ooeratir ns ;:, ,pp r August 30, 1994 DOCKET NUMBER Mr. Samuel J. Chilk, Secretary of the Commission "' ~ULE PRM q- 2 U.S. Nuclear Regulatory Commission (S

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Ohio Citizens for Responsible Energy Petition for Rulemaking August 30, 1994 CNRO-94/00018 Page 2 of2 cc: Mr. R. P. Barkhurst Mr. R. W. Bishop Mr. J. L. Blount Mr. L. J. Callan Mr. S. D. Ebneter Mr. C.R. Hutchinson Mr. G. Kalman Mr. H. W. Keiser Mr. R. B. McGehee Mr. P. W. O'Connor Mr. N. S. Reynolds Mr. F. W. Titus Mr. D. L. Wigginton Mr. J. W. Yelverton Central File (GGNS)

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Florida Power & Light Company, P.O. Box 14000, Juno Beach, FL 33408-0420 ooc~ZETED L, <Ei NUMBER US .RC

, ' RULE PRM q-2._

EP -1 P2 :25 (54FR303otf') L-94-2 1*~4 Mr. Samuel J. Chilk Secretary of the Commission

u. S. Nuclear Regulatory Commission Washington, DC 20555 ATTENTION: Docketing and Services Branch

SUBJECT:

Ohio Citizens for Responsible Energy, Inc.

Receipt of Petition for Rulemaking 59 Fed. Reg. 30308, June 13, 1994 Request for Comments On June 13, 1994 (59 FR 30308), the Nuclear Regulatory Commission

{NRC) published for public comment a receipt of petition from the Ohio Citizens for Responsible Energy , Inc. {OCRE). This petition requests the NRC to revise its regulations of 10 CFR Part 9 to provide public access to information that is held by licensees, but not submitted to the NRC. Florida Power & Light Company {FPL), a licensed operator of two nuclear power plant units in Dade County, Florida and two units in St. Lucie County, Florida offers the following comments.

The Nuclear Energy Institute {NEI) and the Nuclear Utility Backfit and Reform Group {NUBARG) are offering comments on the petition.

FPL endorses the NEI and NUBARG comments and recommendations.

Additionally, FPL submits the following comments which highlight the NEI and NUBARG letters.

It is the NRC's responsibility to perform oversight functions to ensure the safe operation of nuclear power plants to protect the public heal th and safety. FPL believes that OCRE has not demonstrated that the public's additional oversight of the NRC and licensees, through massive document requests, would enhance the p rotection of the public's health and safety. The Freedom of Information Act {FOIA), to which the OCRE petition refers, was not intended to provide the public with unrestricted and limitless access to any document in any way related to government action or held by any entity affected by government regulation.

Additionally, the FOIA does not grant the NRC authority to require l icensees to respond to public request for internal licensee documents. FPL believes that the c u rrent regulations of 10 CFR Part 9 provide for a proper balance between the public's access to information and the rights of licensees.

SEP 2 8 1994 ~

an FPL Group company Acknowledged by card .................- ....* -

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L-94-215 Page Two Another component to consid er is that the OCRE's proposal would constitute a backfit and would require a backfitting analysis since it would require licensees to change both the procedures and organization necessary to operate their facility. Changes that would result are: 1) additional personnel would be required to respond to requests for documents, 2) a review of al l licensee's records would b e required to determine which records are considered privileged under the exceptions listed in the OCRE proposal, and 3) development o f new procedures for dealing with the requests and appeals that arise because of denial of requests. Accordingly, before any of the changes proposed by OCRE could be adopted, the NRC would need to perform a backfitting analysis demonstrating that a substantial increase in safety would result and that the costs are justified by that increase in safety.

FPL makes the recommendation that the NRC deny this petition, and appreciates the opportunity to comment on this issue.

Very truly yours, W. H. Bohlke Vice President Nuclear Engineering and Licensing WHB/spt

--:;-- OOCK ~TEO PECO ENERGY us me PECO Energy Company Nuclear Group Headquarters 965 Chesterbrook Boulevard Wayne, PA 19087-5691

• 94 AUG 31 P4 :3'1 August 24, 1994 OF FIC c ~ Sf CHETA RY OOCKE I H ,j & SEJ(,i ! ~E BR!dCi' DOCKET NUMBER 6 Mr. Samuel J. Chilk ,,.. RULE PRM -r... 2.

Secretary of the Commission U.S. Nuclear Regulatory Commission Attn: Docketing and Service Branch (J'qFR 303 oft)

Washington, DC 20555

Subject:

PECO Energy Company Comments Concerning Ohio Citizens for Responsible Energy's 1o CFR Part 9 Petition for Rulemaking Regarding Public Access to Licensee-Held Information (59FR30308, dated June 13, 1994)

Dear Mr. Chilk:

This letter is being submitted in response to the NRC's request for comments concerning a Petition for Rulemaking filed by the Ohio Citizens for Responsible Energy, Inc. (OCRE) published in the Federal Register (59FR30308, dated June 13, 1994). The OCRE requested that the NRC amend its regulations (I.e., 10 CFR Part 9) to establish public right-to-know provisions that would ensure public access to licensee-held information. PECO Energy Company appreciates the opportunity to comment on this Petition for Rulemaking flied by OCRE, and requests that the NRC deny this Petition since 1o CFR Part 9, Subpart A, already affords provisions permitting public access, under the Freedom of Information Act, to information retained by the NRC and provides notice of procedures for obtaining NRC records otherwise publicly available.

The OCRE's premise for the need of a new rule is that there is a trend in the past several years in the NRC's regulatory practices that decreases the amount of Information to which the public has access, e.g., 1) the NRC has been asking licensees to a) make conclusory statements about taking requested actions and b) keep detailed information about these actions and associated analyses at the plant site for NRC inspector review; and 2) transferring of information from the technical specifications to other documents that may not be available to the public.

As a regulator, the NRC determines what information is required of a licensee in order to assess whether compliance with regulations is being achieved. Conclusory statements provided by licensees to the NRC that requested actions have been completed is an adequate response that requested actions have been taken. The NRC, through its inspection program, can verify the accuracy of the conclusory statements by examining supporting data and analyses. The NRC can document its findings in inspection reports, which are part of the public record.

The NRC records which are already available to the public on each plant's design and each licensee's performance and compliance with regulations are voluminous. Amending 10 CFR Part 9, as requested by OCRE, to permit the public to gain access to any record relevant to NRC-llcensed or regulated activities held by the licensee could impose a significant resource burden on a licensee and would not strike a proper balance between the public's right-to-know and the rights of the licensee. In addition, this Petition for Rulemaking, if pursued, would constitute a backftt under 10CFR50.109.

SEP 2 8 1994 -

Acl-.nowiedged by card ............""'".... " ..

. August 24, 1994 Page 2 If you have any questions or require additional Information, please do not hesitate to contact us.

Very truly yours,

~~ ~~/Fu/l G. A. Hunger, Jr.

Director - Licensing

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PETITION RULE PRM (/ r*

Mayo Clinic I 5'0j rf< ,303Qi] DO cTE0 l: Rochester, Minnesot ~ i 6S-- , l, Radiation Safety Telephone 507 284-3332

• 94 AUG 30 A: :28 August 22 19

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Secretary of the Commission BRA~CH U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTN: Docketing and Service Branch

REFERENCE:

Docket No. PRM-9-2 The following are comments on a proposal to modify 10CFR9.

The language proposed by the petitioners modifying Part 9 is much too broad. If implemented with no changes, this rule would allow any individual to request and expect to receive any information exc.ept that which is sensitive to the licensee, although sensitive is not defined and may have extensive implications.

Such requested information may be personal in nature, e.g. personnel monitoring results or disciplinary action against an employee who failed to follow radiation safety procedures. Requested information may also be somewhat trivial in nature having no impact on activities or risks outside the facility, e.g. use of sealed sources in temporary tumor implants. Requests such as this will only result in an increase in costs for the licensee with no concomitant benefit to the patient.

While the proposed revision states that requests can apply only to information that already exists, it is also distressing that a petitioner may decide to appeal their case to an Administrative Law Judge if they think the information exists (though the company has indicated that it does not) or if they believe more information than what they were provided exists (and it does not). These actions would prove very time-consuming and costly for the licensee.

In short, we see no benefit from the requested petition. On the contrary, th~ petition would result in increased licensee efforts and costs with no benefit nor increase in safety for society. These additional costs would need to be passed on to customers who would gain nothing. In particular, medical licensees would be forced to pass these costs on to patients while at the same time reacting to federal health care initiatives to reduce costs.

Thank you for providing this opportunity to comment.

Sincerely, Richard J. Vetter, Ph.D.

Radiation Safety Officer Acknowledged by c.ard ...~~... 2, ~.J99f

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The Boeing Company P.O. Box 3707 Seattle, WA 98124-2207 DOCKET NUMBER .~ DOCJ<ETEO August 24, 1994 PETITION RULE PRM q--;6 US Nqc 4-1210-94R-0495

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• 94 AUG 29 p 4 :J3 Attention: Docketing and Service Branch Secretary of the Commission OFFI CE er *::::rRE 1/\RY U.S. Nuclear Regulatory Commission DOCK E I ING & SfR y iCE Washington, D.C. 20555 BRANCH

Subject:

Comments Regarding Ohio Citizens for Responsible Energy, Inc.

Petition, Docket No. PRM-9-2 The Boeing Company hereby submits comments opposing the petition for rulemaking BOEING filed with the Nuclear Regulatory Commission ("NRG" or "Commission") by the Ohio Citizens for Responsible Energy, Inc. ("OGRE" or "petitioner") and published in 59 FR 30308 (June 13, 1994). Clearly, the NRG needs to strike an appropriate balance between public knowledge and unnecessary regulatory burdens. However, we believe NRC's current procedures, not the petitioner's proposal, strike the appropriate balance.

Boeing is concerned about the precedent which the petitioner wishes to establish and the unjustified burden it would impose on licensees.

The NRG is the public agency designated by Congress with responsibility for overseeing nuclear safety issues. In this capacity, the NRG and its predecessor, the Atomic Energy Commission {AEC), and their Agreement States have been licensing and regulating the use of radioactive materials for forty years.

In these past four decades, the regulatory agencies have required that licensees maintain information pertinent to the control of their radioactive materials and the safety of their workers, members of the public, and the environment. Some of this information is required to be submitted to the regulatory agencies, but most is maintained on-site where it is subject to inspection at any time. The OGRE appears to believe that keeping records only on-site is unusual. In fact, the practice of maintaining additional records for on-site inspection, without requiring governmental filings of these same materials, is quite common in environmental, safety, and health regulations, at no risk to the public safety.

Furthermore, the petitioner has not identified any reason why the NRG should require more information in its files in order to perform the Commission's function of ensuring nuclear safety.

The petitioner's proposal seeks litigation-type discovery against a licensee without filing a lawsuit and thus, without any of the legal safeguards designed to prevent "fishing expeditions." Under the Freedom of Information Act (FOIA), the costs associated with responding to a FOIA request are born by the government (i.e., all taxpayers) and the person making the FOIA request. The party who may have filed with the government the information that is the subject of a FOIA request is not open to repeated requests for information by other parties, requests for more extensive filings or administrative appeals.

The appellate procedure associated with any FOIA dispute protects the rights of all parties involved.

The proposal that OGRE suggests is overly complicated to achieve its goals. Boeing believes the Commission should reject this petition.

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T. D. Gallacher, Senior Manager Radiation Health Protection 4-1210 6Y-38 (206) 393-3054 FAX (206) 393-3060 SEP 2 8 1994 ACKllOWledged by card ................." .............

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• 94 AUG 29 p 4 :13 PHONE 635-0331 AREA CODE 307 HITCHING POST INN 25 August 1994 P. 0. Box 866 Cheyenne, Wyoming 82003 Secretary of the Commission U.S. Nuclear Regulatory Commission Attn: Docketing and Services Branch Washington, D.C. 20555

- Gentlemen:

The Wyoming Mining Association (WMA) is an industry association of mining companies and associates (suppliers, contractors, service companies, etc.) in the State of Wyoming. The WMA's membership includes a number of uranium recovery licensees licensed by the Nuclear Regulatory Commission (NRC). The Wyoming Mining Association opposes the amendments to 10 CFR Part 9 suggested by Ohio Citizens for Responsible Energy (OCRE) for the following reasons:

1. Cost of the Proposed Amendments The proposed amendments could add significantly to regulatory costs incurred by licensees. Currently Nuclear Regulatory Commission (NRC) licensees have to pay large license fees and hourly charges assessed by the NRC. In addition, licensees have to spend varying sums of money maintaining radiation safety programs to comply with NRC regulatory requirements. The amendments to 10 CFR Part 9 proposed by OCRE would add to the cost of the radiation safety program in spite of the fact that the amendment allows the possessor to require the requestor to pay reasonable reproduction fees. Costs in addition to reproduction fees would be incurred in responding to requests for records from the public. These costs could be substantial especially if billed at the NRC's hourly rate of $133.00 per hour. These costs include but are not limited to:

1.1 Staff hourly charges for:

1.1.1 Document location.

1.1.2 Determination if the documents are publicly available.

1.1.3 Determination if the documents are relevant and if they are relevant, that they contain no classified, confidential, personal, medical, or safeguards information exempted from disclosure under 9.304 (b)(5) of the proposed rule.

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2. Redundancy In the case of uranium recovery licensees, very little data that is gathered in the course of health physics and environmental monitoring is not submitted to the NRC in the form of various required reports. In addition, the licensee is required to submit other data at various times as requested by the NRC. A large portion of the information covered by the amendments proposed by OCRE is already being submitted to the NRC by uranium recovery licensees. In many circumstances, these proposed amendments are redundant.

3. Erosion of NRC Regulatory Control The NRC is charged with protection of public health and safety and the environment.

The NRC inspects its licensees and the inspectors review records related to the license during the inspection. NRC personnel are trained in the interpretation of these records, some of which may contain radiological monitoring data and/or analyses of various types. Some of this data can only be interpreted by individuals with specific training and/or site specific knowledge. Dissemination of this information in a raw form without knowledge.able interpretation and processing could lead to wholly erroneous conclusions being drawn about a licensee by the group requesting the data or by individual members of the general public. Such action would not serve the best interests of the NRC, the licensee, the nuclear industry or the general public. Should an NRC inspector discover a violation of the regulations or of a license condition in the course of reviewing license related documents during an inspection, this fact is noted in the inspection report which is available to the public.

These proposed amendments to 10 CFR Part 9 erode NRC regulatory control by allowing groups or individual members of the general public to bypass the agency and essentially audit licensee records.

The current system assures that most of the license related data is reported in various reports which are available to the general public and the remainder is reviewed by trained inspectors working for an agency charged with protecting public health and safety and the environment.

In conclusion, the Wyoming Mining Association believes that the current system of reporting by license.es coupled with onsite review of license related records by trained NRC inspectors best serves the public interest by protecting public health and safety, and the environment. A large amount of the data related to the license is already available to the general public in the form of submittals to the agency. In addition, extensive data files are subject to NRC scrutiny. The Wyoming Mining Association appreciates the opportunity to comment on this petition. If you have any questions please do not hesitate to contact me.

Sincerely, WYOMING MINING ASSOCIATION Marion Loomis Executive Director b:uranium Ii>>

DOCKET NUMBER

• PETITION RULE PRM 9/ ;;_,

(~q FR__ 3tJ3()JJ) Illinois Powe, Compa( !!)

DOCKETED Clinton Power Station P.O. Box 678 USNRC Clinton, IL 61727 Tel 217 935-8881 ILLIN915 *94 AUG 29 p 4 :lQ-602321 PfiWER Ll0-94(08 -25 )LP 8G.120 OF FICE Or SECRETARY August 25 , 1994 DOCK ET! , 'Ci !._ ~;FRVICE 9R>-\NCH Secretary Nuclear Regulatory Commission Attention: Docketing and Service Branch Washington, D.C. 20555

Subject:

Illinois Power's Disagreement with the Ohio Citizens for Responsible Energy, Inc. Petition for Rulemaking Regarding 10 CFR Part 9

Dear Sir:

The Federal Register, Volume 59, No. 112, Pages 30308-30310 lists the NRC notice of receipt regarding the Ohio Citizens for Responsible Energy, Inc. (OCRE) petition for rulemaking. This petition recommends that all license specific information (with a few exceptions) contained within a "Possessor's" facility be made available, upon request, to any person or organization within 30 days following the request. If the licensee does not transmit the requestor's information, the requestor could appeal a denial of a request for documents directly to the Nuclear Regulatory Commission (NRC) Atomic Safety and Licensing Board (ASLB). Illinois Power (IP) disagrees with the petition for rulemaking because it creates an unnecessary burden on nuclear utilities to hold, retrieve, reproduce and disclose a wide range of documents over and above the large number of records already made available to the public through existing regulations. Since this request serves no useful purpose or cost-effective alternative in improving the safe operation of a licensees' facility, IP urges the NRC to deny the petition in its entirety.

IP does not agree with this petition for rulemaking as the process described above would impose many additional document request requirements with no increase in the safety benefit. A Possessor may incur untold expenses including but not limited to, hiring additional personnel to index, catalog and arrange all information so it could be retrieved in a timeframe to meet the requestor's demand for information. OCRE believes that the only cost that they should be responsible for is the cost of copying the information once the licensee has obtained it although the licensee went through extensive research to extract the requested information from its files and archives. This is not in accordance with 5 U .S.C. 552(a)(4)(A)(ii) which generally provides reimbursement for finding the necessary documents and document reproduction. In addition, establishing a 30-day requirement on retrieval of this information would make it inconsistent with priority given responding to genuine safety concerns contained within NRC Generic Letters and

, SEP 2 8 1994 Ac now1e ged by card ..................................

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. U-602321 Page2 Bulletins. Lastly, OCRE requests that the Freedom oflnformation Act (FOIA) be modified by the NRC to apply to non-governmental businesses. This is a broad sweeping action which could adversely affect regulated industries and the FOIA statutes do not provide the NRC authority to mandate public disclosure of documents held by a licensee.

IP concludes that the public is afforded an "Opportunity to participate through the submission of statements, information, opinions, and arguments," as stated in 10 CFR 2.805. OCRE's petition, however proposes an unprecedented and burdensome intrusion into the conduct ofbusiness which is not justified as a matter of public policy. IP does not have the staffing necessary to retrieve and process the amount of information that would enable a requestor to completely and correctly analyze all correspondence sent to the NRC within the specified time frames. As such, this work represents a hidden cost to operation that is not appropriate given the negligible gain in safety of operation of a facility.

Therefore, IP requests that the petition be denied in its entirety.

Richard F. Phares Director, Licensing JSP/csm cc: NRC Clinton Licensing Project Manager Ellen Ginsberg, NEI Assistant General Counsel

DOCKET NUMBER I PETITION RULE PR~ q ¢-

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OOC .__ EO NU CLEA R ENERGY I NSTITUTE USHRC

• 94 I\UG 29Robert P 4Willis

08 Bishop VICE PRESIDENT &

John C. Hoyle, Acting Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch Re: Ohio Citizens for Responsible Energy Petition for Rulemaking (PRM-9-2)

Dear Mr. Hoyle:

On behalf of the commercial nuclear energy industry, the Nuclear Energy Institute (NEI)1 is providing the following comments on the petition for rulemaking submitted by Ohio Citizens for Responsible Energy (OCRE).

As described in the Federal Register notice (59 Fed. Reg. 30308, June 13, 1994),

the petition requests that the NRC amend its regulations (10 C.F.R. Part 9) to provide public access to a broad range of documents maintained by licensees, but not submitted to the NRC. Such disclosure is, to the best of our knowledge, unprecedented in any regulated industry. The amendments requested by OCRE are beyond the NRC's statutory authority, unwarranted by any legitimate NRC regulatory interest, inappropriate as a matter of public policy, and would impose an excessive burden on licensees and the NRC.

For these reasons, and as we further explain below, NEI urges the NRC to deny OCRE's petition in its entirety.

1 NEI is responsible for developing and implementing a unified nuclear industry approach to policy and regulatory issues, including the generic regulatory aspects of operational and technical issues affecting the nuclear energy industry. NEI's members include all utilities licensed to operate commercial nuclear power plants in the United States, the nuclear steam supply system vendors, major architect/engineering finns, fuel fabrication facilities, materials licensees, and other individuals and organizations involved in the nuclear energy industry.

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John C. Hoyle August 29, 1994 Page2 ARGUMENTS A. The NRC Lacks Statutory Authority to Implement OCRE's Requested Action, OCRE cites no statutory authority for the NRC to adopt the proposed rule, despite the fact that it would dramatically expand the NRC 's current requirements for granting public access to documents. The statutory authority for the NRC's promulgation of 10 C.F.R Part 9, the regulations OCRE seeks to amend, includes, inter alia, the Freedom of Information Act (FOIA) (5 U.S.C. § 552), the Privacy Act (5 U.S.C. § 552a) and the Government in the Sunshine Act (5 U.S.C. § 552b). A review of these statutes reveals that none provides the Commission with authority to mandate public disclosure of ~

licensee-held documents which the NRC has determined are not necessary for submittal to the agency to enable it to carry out its regulatory responsibilities.

FOIA was enacted to accommodate the competing interests of the public's "right to know" about government action, the right of the government to govern efficiently, and the right of regulated entities to engage in business activities with appropriate protection of their legitimate competitive interests. FOIA was not intended to provide the public with unrestricted and limitless access to any document in any way related to government action or held by any entity affected by government regulation. To the contrary, FOIA was intended to balance public, private, and government interests--and does so, inter alia, 2

by permitting public access only to agency records. See, e.g., Sterling Drug Inc. v. FTC, 450 F.2d 698 (D.C. Cir. 1971).

OCRE's petition requests a dramatic expansion of the NRC's implementation of FOIA. In essence, OCRE is asking the NRC to unilaterally--without Congressional action--modify FOIA by making the statute applicable to entities other than government agencies and to records other than those within a government agency's control. 3 ..

2 FOIA also provides certain exemptions even for documents which qualify as "agency records." 5 U'.S.C. § 552(b).

3 It is clear from a review of the Atomic Energy Act, Sec. 103 (bX3 ), that when Congress developed the regulatory scheme for commercial nuclear power, Congress considered the documentation to which the NRC would be entitled. In its pertinent part, section 103(bX3) specifies The Commission shall issue such license on a nonexclusive basis to persons applying therefor... (3) who aW)e to make available to the Commission such technical infonnation and data concernin~ activities under such licenses as the Commission ma_v detennme necessary to promote the common defense and

John C. Hoyle August 29, 1994 Page3 Congress and the Supreme Court have already determined that both applications are impermissible. As such, the Commission lacks statutory authority under FOIA to grant OCRE's petition.

Tue Supreme Court has held that requested materials must-satisfy two requirements to qualify as "agency records" under FOIA. First, a government agency must "either create or obtain" the requested materials. Second, the government agency must be "in control" of the requested materials at the time the FOIA request is made.

United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989). Tue Supreme Court has defined "control" to mean that the materials are in the agency's possession through the legitimate conduct of its official duties. Id. An agency's right of access to materials created and possessed by a private party, including the right to obtain permanent custody of the information, does not transform the materials into agency records. Forsham v, Harris, 445 U.S. 169, 185-186 (1980) ("FOIA applies to records which have been, in fact, obtained, and not to records which merely could have been obtained.") (Emphasis in original). Documents created by NRC licensees which remain in their possession are not "agency records" under the above <!,escribed criteria. Thus, they do not fall within the purview ofFOIA unless and until the NRC obtains control over them.

OCRE's proposal also would, in effect, improperly permit FOIA to be used by a private party to obtain unfettered discovery of licensees' internal company documents.

Tue Supreme Court has concluded that Congress did not intend FOIA for this purpose.

~ ' e.g. NLRB v, Robbins Tire & Rubber Co,, 437 U.S. 214,242 (1978) ("FOIA was nQt intended to function as a private discovery tool.") (Emphasis in original); Renegotiation security and to protect the health and safety of the publjc. All such information may be used by the Commission only for the purposes of the safety of the public. (Emphasis added).

This language evidences Congressional intent to limit the scope of documents that the NRC is entitled to obtain from NRC licensees to only those necessary for the NRC to carry out its regulatory function. Although Section 103(bX3) was primarily developed to ensure that proprietary documents obtained by the NRC ordinarily would not be divulged to competitors, Congress also implicitly prohibited the NRC from seeking to be a repository for a duplicate of every *document maintained by licensees. Congress understood that such action was not an efficient means of regulating. And, importantly, Congress apparently strove to adhere to the regulatory scheme it set up whereby the NRC is charged with the responsibility to oversee the safe operation of commercial nuclear power plants. FOIA is consistent with the Atomic Energy Act in that it only permits disclosure of that which the NRC has obtained to perform its regulatory oversight function. FOIA was not intended to change Congress' legislative directive previously set out in the Atomic Energy Act

John C. Hoyle August 29, 1994 Page4 Board v, Bannercraft Clothing Co,, 415 U.S. 1, 22 (1974); Lewis v, IRS, 823 F.2d 375, 380 (9th Cir. 1987); Electri-Flex Co, v, NLRB, 412 F. Supp. 698, 702 (N.D. Ill. 1976);

Roger J. Au & Son, Inc, v, NLRB, 405 F. Supp. 1200 (W.D. Pa. 1976), affd, 538 F.2d 80 (3d Cir. 1976). If the NRC accepts OCRE's proposal, members of the public would have access to licensee documents without the obvious prerequisite institution of a legal proceeding: against the licensee.

While the Privacy Act (5 U.S.C. § 552a) and the Government in the Sunshine Act (5 U.S.C. § 552b) also provide statutory authority for the Part 9 regulations, neither statute is relevant to, nor provides support for, OCRE's proposal. The purpose of the Privacy Act is to give "individuals greater control over the gathering, dissemination, and accuracy of agency information about themselves." Miller v, United States, 630 F. Supp.

347, 348 (E.D.N.Y. 1986) (emphasis added). The Government in the Sunshine Act requires that all agency meetings be open to the public unless the meeting falls within one of the exemptions to the Act. The only records potentially subject to disclosure under the Government in the Sunshine Act are transcripts, electronic recordings, or minutes of 4

meetings of the Commission.

As the above analysis demonstrates, neither FOIA, the Privacy Act, nor the Government in the Sunshine Act provide the NRC with statutory authority to take the action OCRE has requested. Without this or other statutory authority, the NRC may not grant OCRE's petition.

B. Public Policy Considerations Do Not Provide Support for OCRE's Requested Action, Given the lack of legal authority upon which to base its petition, OCRE relies on its view of public policy considerations to support its requested action. OCRE argues that its requested action would strike a "proper balance between the public's right to know and the rights oflicensees." (OCRE petition at 4). The industry strongly disagrees and, even more importantly, Congress has already spoken to the issue in its construction ofFOIA.

Under OCRE's proposal, any member of the general public could require any NRC

" Other statutory bases for Part 9 regulations include section 201 of the Energy Reorganiz.ation Act (Establishment and Transfers"), and 31 U.S.C. § 970 I ("Fees and charges for Government services and things of value"). However, neither provision provides the Commission with the authority to mandate public disclosure of licensee-held documents.

John C. Hoyle AuguSt 29, 1994 Page 5 licensee to produce virtually any document that mentions or relates to "any activity, facility, or material licensed or regulated by the NRC." Only documents that have "absolutely no relevance" to such activities, facilities, or materials would be exempt from disclosure. Our disagreement is not with the legitimacy of the public's interest in lawful access to information relating to pertinent regulated activities ofNRC licensees. We recognize and support that interest. Rather, we disagree with OCRE's apparent view about how far the rights of public access extend. The "balance" OCRE promotes as "proper would require licensees to provide significantly more documents than those to which the public is lawfully entitled. OCRE's view is a distortion of the public's "right to know," a concept which was never intended to be used as a means of interfering with the ongoing business of the government or government-regulated entities.

Reduced to its essence, OCRE's proposal challenges the Congressional delegation 9f authority to the NRC. The NRC represents the public interest pursuant to the mandate from Congress in the Atomic Energy Act. It is the NRC 's responsibility to oversee licensees to ensure the safe operation of nuclear power plants. As the federal courts have held, Congress intended the NRC's role in the regulation of licensees to be virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives." Siegel v. Atomic Energy Commission, 400 F.2d 778, 783 (D.C.

Cir. 1968); Carstens v, Nuclear Regulatory Commission, 742 F.2d 1958 (9th Cir.) cert denied, 417 U.S. 1136 (1984). OCRE's proposal, taken in total, ~plies that the NRC has failed to adequately perform its oversight function. In short, OCRE asserts that the public

---

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interest will only be protected by giving the public virtually unfettered access to practically all of a licensee's internal documents, including those which the NRC believes are unnecessary for it to possess or obtain access to. However, OCRE provides no evidence that its suggested changes to Part 9 will ensure that the NRC is better able to review licensee performance and regulate licensee conduct. Nor has OCRE provided evidence which demonstrates that the public's oversight of the NRC and licensees, through the availability of massive numbers of licensee internal documents, would further the real interest always at issue in NRC regulation--protection of public health and safety.

Certainly once an entity requests and/or obtains an NRC license, it relinquishes some measure of privacy and can reasonably anticipate that those aspects of its business of regulatory significance will be open to review by the regulator and, as provided by law, to public disclosure. However, given the breadth of the criteria OCRE proposes virtually all documents are likely to be related in some way to regulated activities. It appears that

John C. Hoyle August 29, 1994 Page6 OCRE would like to reduce the public's ability to obtain documents to the following simplistic equation: since it is the business of licensees to operate nuclear power plants, clearly a regulated activity, virtually all documents produced in this endeavor should be available for public disclosure. Going to the extreme OCRE proposes simply is not necessary. While licensees may produce documents related to a particular regulatory issue, the substance of those documents, to the extent required for regulatory purposes, will be captured in one or more submittals to the NRC and, thereby, be available to the public.

- In addition: to the access provided under FOIA, as discussed at length above, members of the public may also obtain access to licensee documents through the discovery process established for NRC licensing proceedings and civil litigation_. In either of those circumstances, access to licensee documents is permitted for members of the public who have demonstrated legal standing. Discovery rights enable a party participating in the legal proceeding to obtain only those documents relevant to the specific matters at issue. The provisions ofFOIA, the NRC's discovery rules, and state and federal court discovery rules set appropriate parameters for a party's right to obtain documents generated by NRC licensees. In contrast, OCRE's request would set a vague and virtually limitless standard, the result of which would be the improper intrusion by any member of the public into the legitimate business affairs ofNRC licensees. It could require production of documents with no nexus to any specific regulatory matter, simply

- because the documents relate to, address, or mention a licensed facility or activity.

OCRE also asserts that the amendments to Part 9 are necessary because of an alleged "trend" toward "decreasing the amount of information to which the public has access". OCRE Petition at p. 1. In support, OCRE cites several examples of instances in which the NRC has required or requested licensees to perform and document analyses, or to prepare other records, but to retain such documents rather than submit them to the NRC. In addition, OCRE apparently is concerned that some licensee documents are retained on licensee computer systems and NRC inspectors are provided access through the licensee's computer system.

The industry does not agree that there is a "trend" toward decreasing the amount of information that is available to the public. To the contrary, we believe that the, agency has sought increasingly more documentation from licensees. NRC licensees currently provide vast amounts of information to the Commission in accordance with extensive reporting requirements contained in NRC regulations. Licensees are frequently required

John C. Hoyle August 29, 1994 Page7 to submit information to the NRC pursuant to individual license conditions, facility technical specifications, orders, enforcement actions, generic letters, bulletins, and industry codes and standards references in licensee documentation. These documents are placed in NRC public document rooms at or near plant locations and at NRC headquarters. The public has access to virtually all of this documentation, which constitutes the vast majority of the information made available to the NRC in order for it to carry out its regulatory functions.

With respect to OCRE's concern about documents that are maintained in a licensee's computer system but are made available for review by agency personnel, logic demands that these documents be treated in the same way as "hard copy" documents are treated in the context ofFOIA. When the NRC performs an audit, documents which agency personnel review do not qualify as "agency records" under FOIA unless and until the agency becomes the "possessor" of the documents. The fact that a document is stored on computer media should be irrelevant to this concept Licensee documents stored on computer media accessed by the NRC will, like a hard copy, become NRC records when, and if, the NRC inspector is given permanent possession of a copy of those documents, such as providing NRC personnel with a floppy disk. An NRC review of documents that are retained by a licensee in a "hard copy" form or on its computer system simply does not bring those documents within the ambit of FOIA.

In short, the industry believes that existing statutory and regulatory mechanisms reflect a sound public policy determination striking the most appropriate balance between the public's "right to know" and the rights of private entities (in this case, NRC licensees) to conguct their businesses. The broad disclosure of internal company documents requested by OCRE would represent an unprecedented and unwarranted intrusion into the business operations of NRC licensees. Further, and as a practical matter, OCRE's petition would allow members of the public to engage in broad "fishing expeditions" into aspects of licensees' businesses which have no relationship to any valid regulatory purpose.

C. . OCRE's Suggested Amendments to 10 C.F.R. Part 9 Would Impose an Excessive Administrative and Cost Burden on Licensees and the NRC.

OCRE claims that its proposal would "not require that licensees generate information that does not already exist in response to a request," and would not be

John C. Hoyle August 29, 1994 Page 8 excessively burdensome. (59 Fed. Reg. 30309). To the contrary, the proposal would create a significant administrative and cost burden for both licensees and the NRC.

Licensee personnel at each licensed facility potentially would be required to process requests for huge numbers of documents. There also may be a large number of individual requests- filed which have the same or similar deadlines for production.

Processing these requests is likely to require:

receipt, acknowledgment and tracking of the request; evaluation of the request to determine if it will require a document search, and if so, the nature and scope of the search; conduct of the search including interactions with various potential document custodians; reviewing collected materials and screening them for "relevance" or other bases for non-disclosure, such as trade secrets or privileged information; and reproduction and transmittal of responsive documents.

Clearly, the need to dedicate licensee personnel to perform these tasks, as well as the interference with other duties of personnel who may be custodians of such documents, will be very costly.

OCRE's proposed rule would require document requesters to reimburse licensees only for "reasonable reproduction fees." This proposal ignores the substantial administrative costs of document search and review, and is inconsistent with relevant FOIA provisions which generally provide for reimbursement for both document search and duplication. (5 U.S.C. § 552(a)(4)(A)(ii)). Significantly, a failure by a licensee to produce each and every document pertinent to a request, within the allotted time, regardless of the nature or potential significance of the material, would subject the licensee to potential enforcement action.

In OCRE's narrow assessment of the burdens likely to be imposed by its proposed approach, OCRE has not considered, or has rejected, the possibility that any burden would fall on the NRC. Indeed, the NRC would bear a significant burden in resolving

John C. Hoyle August 29, 1994 Page9 disputes between requesters and licensees. The NRC's costs primarily would be associated with the appeal process suggested in OCRE' s petition. In this context, however, it would not only be the time and costs associated with the Atomic Safety and Licensing Board's (Licensing Board) participation, although Administrative Judges would have to be impaneled to review the bases of the dispute and render a decision.

There would also be a substantial demand on NRC staff resources to assist the Licensing Board's in its consideration of the dispute. (It is improbable that a Licensing Board would render its decision without the views of the NRC staff.) Since such views are not likely to be provided ex parte, the Board might hold SOIIl:e sort of informal meeting or 5

hearing. The type of hearing would not affect the burden borne by the NRC staff. Staff resources would be consumed in the processes of evaluating the issues, preparing a staff position, and providing staff's position to the Licensing Board through either a written submission or an oral presentation. In light of the NRC's current budget, recently reduced by Congress, OCRE has failed to consider an important aspect of the burden its approach would impose.

Given the foregoing, we believe that OCRE's proposal would impose a significant burden on licensees and the NRC without a commensurate or any improvement in public health and safety. In other words, OCRE has not demonstrated a significant public interest that would outweigh, among other negative impacts, the proposal's potential burdens. A benefit only would accrue to those few individuals whose vocation or avocation it is to oversee NRC and licensee performance because those individuals do not believe that the NRC is responsibly protecting the public health and safety.

CONCLUSION The industry fully supports the public's right to obtain information regarding the regulated activities of NRC licensees as provided for under current statutes and regulations. OCRE's petition, however, proposes an unprecedented, sweeping, and burdensome intrusion into the conduct of NRC licensees' businesses. It is not justified either as a matter oflaw or public policy. The industry, therefore, respectfully requests that the NRC deny the petition in its entirety.

5 We are not suggesting that if an informal hearing is held, it would be "face-to-face." The NRC could hold an informal hearing on papers submitted, for example, similar to that provided for in Subpart L of the NRC's regulations.

John C. Hoyle August 29, 1994 Page 10 If you have questions about these comments, or members of the staff wish to discuss the industry's views further, please do not hesitate to contact me at (202) 739-8139.

Sincerely,

~ Robert W. Bishop RWB/ECG:bjb

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{202) 371-5742 (212) 269-2500 August 29, 1994 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN: Docketing and Service Branch Re: OCRE Petition For Rulemaking, 59 Fed. Reg. 30308 (June 13, 1994)

Dear Mr. Chilk:

I. INTRODUCTION These comments are submitted on behalf of the Nuclear Utility Backfitting and Reform Group ("NUBARG") l' in response to the above-referenced notice and invitation to comment appearing in the Federal Register. We welcome this opportunity to express our views concerning the rulemaking petition filed by Ohio Citizens for Responsible Energy {"OCRE") to amend 10 C.F.R. Part 9 to require licensees to respond to public requests for internal licensee documents.

NUBARG agrees that public participation and openness is critical to a successful regulatory process. However, the current regulations at 10 C.F.R. Part 9 strike the proper balance between the public's access to information and the rights of licensees. In light of the considerable quantity of information already available to the public through the NRC and the Freedom of Information Act

("FOIA") process, the regulations proposed by the petition would impose significant additional burdens on licensees without offering any meaningful benefit to the public health and safety. NRC decisions regarding public health and safety are fully documented 1' For purposes of these comments, NUBARG consists of the nuclear utilities listed in the attachment. NUBARG actively participated in the NRC's development of the backfitting rule, 10 C.F.R. § 50.109, and has closely monitored the NRC's application of the rule in practice.

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Mr. Samuel J. Chilk August 29, 1994 Page 2 in evaluations and correspondence readily available in NRC public document rooms. Thus, sweeping changes such as those suggested by OCRE are unnecessary.

We offer below the following specific comments regarding the rule proposed in the petition: (1) the rule would be inconsistent with Supreme Court precedent declining to apply FOIA to private parties; and (2) the rule would impose a significant backfit on licensees without adequate justification.

II. DISCUSSION Under OCRE's proposed rule, a member of the public could request any internal records relevant to NRC-licensed or regulated a ctivitie s from a licensee or an applicant for a license . The rul e would require each licensee to designate an official to whom these requests for documents would be sent. In addition, the proposal would permit a requester to appeal any denial of access to the Chairman of the Atomic Safety and Licensing Board Panel, who would appoint an administrative law judge to consider the appeal.

A. FOIA-Related Implications If promulgated, the petition's proposed rule would constitute an unprecedented imposition of FOIA on a private enterprise. The proposed provisions essentially would require licensees to respond to public requests for information in much the same manner as government agencies respond to FOIA requests. The Commi s sion never contemplated such a result when it originally implemented FOIA for NRC purposes in 10 C.F.R. §§ 9.11-9.45. Under 10 C.F.R. § 9.13, the Commission strictly defined agency records for the purposes of FOIA as only those records in possession and control of the NRC. In fact, in 1985, the Commission amended its FOIA regulations to clarify that records in the hands of NRC contractors would not be subject to FOIA requests. Y In doing so, the Commission recognized that "existing case law and long-standing agency practice held that records not actually in the possession and control of the NRC are not agency records. 11 ¥ These same considerations weigh heavily against promulgation of OCRE' s proposal. FOIA does not grant the NRC authority to require licensees to respond to public requests for Y 50 Fed. Reg. 37642 (September 17, 1985).

'J/ 52 Fed. Reg. 49351 (December 31, 1987).

Mr. Sa muel J. Chilk August 29, 1994 Page 3 licensee documents. In Forsham v. Harris, 445 U.S. 169 (1980), the Supreme Court explicitly refused to apply FOIA to private parties, and held that an agency must either create or obtain a record for that record to be subject to a FOIA request.ii Specifically, the court found that written data in the hands of a privately controlled organization receiving federal grant money, could not be obtained by a private party through the federal government using FOIA. The court relied heavily on congressional intent. Under FOIA, an "agency" was defined by Congress as "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government . . . , or any independent regulatory agency. 11 1' Critical to the court's r easoning was the fact that Congre ss could have provided that records created by federal grantees become federal property, but did not. The Supreme Court reasoned that Congress was concerned with the disruptive effects of extending FOIA's reach to documents held by private organizations.~'

In the same vein, the system envisioned in the petition would have serious negative impacts. Currently, licensees submit a vast amount of information to the NRC. This includes the Final Safety Analysis Report and updates, information on facility and procedure changes under 10 C.F.R. § 50.59, submittals and supporting information for license amendment requests and exemptions, various required reports (e.g., 10 C.F.R. § 50.73), and information on many required programs (e.g., equipment qualification, fire protection, and inservice testing). All of these items, and other docketed correspondence forming the basis for NRC decisions regarding public health and safety, are readily available in NRC public document rooms.

Given the availability of this information, requiring licensees to disclose additional internal documentation upon request is unnecessary and potentially counterproductive. To cite just one example, the NRC in recent years has encouraged licensees to undertake self-assessments and other self-critical evaluations ii See also, United states Dept. of Justice v. Tax Analyst, 492 U.S. 136 (1989); Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1979).

~ 5 U.S.C. § 552(e).

~ Forsham, 445 U.S. at 179.

Mr. Samuel J. Chilk August 29, 1994 Page 4 to help identify and correct nonconforming or degraded conditions, as well as other problems. Subjecting such internal documents to routine public access and disclosure would discourage frank and aggressive self-evaluations. This chilling effect is a very real negative impact of OCRE's proposal. Current NRC filing and reporting requirements provide the proper amount of public access to licensee documents.

Furthermore, contrary to the position taken in the petition, the increased threshold for admission of contentions pursuant to 10 C.F.R. § 2.714 does not justify placing additional disclosure burdens on licensee s. The liberal discovery provisions in 10 C.F.R. Part 2 offer ample opportunity for intervenors to develop support for contentions during licensing proceedings.

These r egulations provide the appropriate mechanism for interve nor access to licensee documents in the context of licensing proceedings and provide licensees the ability to contest overly burdensome requests. The Commission should not promulgate regulations, such as those proposed by OCRE, that would allow abusive pre-litigation fishing expeditions.

B. Backfittinq Ramifications The OCRE proposal, if adopted, would constitute a backfit and would require a backfitting analysis, pursuant to the procedures contained in 10 C.F.R. § 50.109. As defined in Section 50.109{a) {l), a backfit includes "the modification of or addition to . . . the procedures or organization required to design, construct or operate a facility" that results from a new or amended provision in Commission rules. The OCRE proposal would constitute a backfit because it would require licensees to change both the procedures and organization necessary to operate facilities. Under the OCRE proposal, each licensee would be rewiired to assign an official to respond to requests for documents.- In addition, each licensee would have to establish a document management system to determine which of their records are privileged under the exceptions listed in the OCRE proposal, § 9.304(b) (5). The new regulations would also require each licensee to design procedures to deal with the actual requests and any appeals which arise because of denials of requests.!'

11 Proposed§ 9.302.

Proposed§ 9.305.

Mr. Samuel J. Chilk August 29, 1994 Page 5 These would constitute significant changes in licensee procedures and organizations. The petition, however, fails to show how the proposed changes in public access to information will produce the substantial increase in public health and safety required by the backfitting rule (10 C.F.R. § 50.109(a) (3)). Nor does it attempt to show how the obvious high costs of new personnel and document systems are justified by such an increase in safety.

The proposal also does not fit under any of the three exceptions that would alleviate the need for a backfitting analysis.2' First, the rule change is not necessary in order to bring licensees into compliance with existing requirements.~'

Licensees already comply with existing rules that pertain to filing, reporting, and recordkeeping requirements and the public's access to informa ti on. OCRE' s proposa l, as di scussed a bove, i s an attempt to broaden the FOIA provisions previously codified by the Commission at 10 C.F.R. §§ 9.11-9.45.

Second, OCRE's proposed rules are not necessary to ensure that licenseesRrovide adequate protection to the health and safety of the public.-' While it is debatable whether increased access to licensee documents (and the resultant administrative burden on licensees) will improve overall protection at all, such access is not required to bring current levels of safety up to "adequate" levels. None of OCRE's arguments in support of the petition allude to any impending or immediate health or safety problems.

The proposal also does not trigger the third exception to the backfitting rule -- that the regulatory action involves a redefinition of adequate protection. The petition makes no attempt to explain why the existing level of protection under current filing and FOIA requirements is inadequate and needs to be increased.

Accordingly, before any of the changes proposed in the petition could be adopted, the NRC would need to perform a backfitting analysis demonstrating that a substantial increase in safety would result and that the costs are justified by that increase in safety.

2/ 10 C.F.R. § 50.109(a) (4) (i-iii).

~' 10 C.F.R. § 50.109(a) (4) (i).

!!' 10 C.F.R. § 50.109(a) (4) (ii).

Mr. Samuel J. Chilk August 29, 1994 Page 6 III. CONCLUSION For the foregoing reasons, NUBARG recommends that the NRC deny OCRE's petition for rulemaking. The rule would contradict long-established FOIA principles recognized by the Supreme Court and would impose significant burdens on licensees without offering a substantial benefit to the public health and safety. In the past, the Commission has rejected petitions for rulemaking when present measures are adequatell' or the issue has been considered and resolved in previous rulemakings. 131 NRC FOIA regulations already provide public access to vast quantities of documents relating to licensed activities, and as noted above, in a previous rulemaking, the Commission specifically rejected the extension of FOIA to records not in the control and possession of the NRC.

Accordingly, OCRE's petition for rulemaking should be denied .

. (t~

Nicholas S. Reynolds ~~

Daniel F. Stenger {)

Mark J. Hedien WINSTON & STRAWN Counsel to the Nuclear Utility Backfitting and Reform Group Attachment

!Y S e e , ~ , Quality Technology Company, DPRM-88-3, 28 NRC 61 (1988).

ll' S e e , ~ , Marvin Lewis, DPRM-90-3, 32 NRC 326 (1990).

NUBARG Members Baltimore Gas & Electric Company Centerior Energy Corporation (representing Cleve land Electric Illuminating Company and Toledo Edison Company)

Commonwealth Edison Company Entergy Operations, Inc (representing Arkansas Power & Light, System Energy Resources, Inc., and Louisiana Power & Light)

Florida Power & Light Company Florida Power Corporation New York Power Authority Niagara Mohawk Power Corporation Pennsylvania Power & Light Company PECO Energy Company Rochester Gas & Electric Corporation Texas Utilities Washington Public Power Supply System

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DOCKETED AMERICAN August 29, 1994 USHRC MINING CONGRESS BY HAND DELIVERY FOUNDED 1897 *94 AUG 29 P4 :09 1920 N Street NW, Suite 300 Washington, DC 20036-1662 Secretary of the Commission 202/ 861-2800 Fax: 202/ 861-7535 U.S. Nuclear Regulatory Commission OF FICE Or Stl RETA RY 11555 Rockville Pike DOCK ETING & SERVICE Rockville, MD 20850 BHANCI-!

Officers Chairman: Richard de J. Osborne Vice Chairman and Chairman, Attention: Docketing and Service Branch Finance Committee:

Douglas C. Yeartey Vice Chairmen:

Allen Born*

Re: Ohio Citizens for Responsible Energy, Inc. 's Petition for Milton H. Ward Harry M. Conger Rulemaking - Docket No. PRM-9-2 Gordon R. Parker M. Thomas Moore illie 8. Turner arry G. McGrath

Dear Secretary:

• . Burgess Winter John M. Piecuch Bob E. Cooper The American Mining Congress (AMC) submits these comments President: John A. Knebel Secretary: Michael J. Chakarun in response to the Nuclear Regulatory Commission's (NRC) notice of Treasurer: Clarence L. Smith receipt of a petition for rulemaking by the Ohio Citizens for Dlractons Responsible Energy, Inc. (OCRE). 59 Fed. Reg. 30,308 (June 13, Calvin A. Campbell Jr., Chicago Harry M. Conger, San Francisco 1994). OCRE's petition requests the Commission to amend 10 C.F.R.

Milton H. Ward, Englewood CO Allen Born, Norcross GA Part 9 to establish "public right-to-know" provisions to give the public R. Gene Dewey, Los Angeles access to licensee-held documents. While AMC fully agrees that public Richard de J. Osborne, New York Gordon R. Parker, Denver participation in the regulatory process is important, AMC objects to the W. R. Stamler, Paris KY M. Thomas Moore, Cleveland requested amendments to 10 C. F. R. Part 9 as unnecessary, inefficient Arthur Brown, Coeur d'Alene ID and contrary to NRC's policies.

Wm. G. Mulligan, Woodcliff Lake NJ Billie 8. Turner, Northbrook IL Dana S. Getman, Bangor Ml J. Burgess Winter, Tucson AMC is a national trade association representing: (1) producers n L. White-Thomson, Los Angeles of most of the United States' metals, uranium, coal, and industrial and en A. Barton, Peoria

• arl E. Elers, Houston agricultural minerals; (2) manufacturers of mining and mineral Robert M. Smith, Toronto Marc F. Wray, Pittsburgh processing machinery equipment and supplies; and (3) engineering and Robert P. Larkins, Houston consulting firms and financial institutions that serve the mining Thomas W. Garges Jr., Indiana PA Anthony G. Fernandes, Denver industry.

Barry G. McGrath, Englewood CO Gerard E. Munera, Englewood CO Merle D. Wolfe, Knoxville OCRE's proposed amendments to the Commission's rules on Jerry K. Ellis, San Francisco Douglas C. Yearley, Phoenix public access to information is contrary to efficient regulatory oversight Bruce E. Grewcock, Omaha of NRC facilities. Under Chairman Selin's leadership, the Commission John M. Piecuch, Reston VA Robert C. Scharp, Oklahoma City is focusing on reducing regulatory burdens through various means, such James A. Todd Jr., Birmingham John M. Willson, Vancouver BC as performance-based license conditions (PBLCs), which are being Jeffrey L. Zelms, St. Louis actively considered for uranium recovery licensees. This effort would R. Thomas Green Jr., Cleveland George A. Mealey, New Orleans be undermined if OCRE's proposed amendments were adopted. Under Bob E. Cooper, Salt Lake City David D. Eckert, Shelton CT draft PBLCs, operators may undertake certain tasks without filing J. Brett Harvey, Salt Lake City detailed paperwork with NRC provided the tasks are within Werner G. Nennecker, Spokane Richard T. Zltting, Albuquerque circumscribed parameters of the operator's license underlying license John U. Martin, Dallas application and Environmental Impact Statement (EIS) and do not Sir Ian MacGregor, New York+

N. T. Camicia, Greenwich + adversely affect the environment or the public health and safety. See 10 Charles F. Barber, New York+

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C.F.R.§50.59. This policy provides uranium fuel cycle facilities with some necessary management flexibility while decreasing somewhat the degree of day-to-day NRC oversight and avoiding inappropriate micromanagement of a facility's operations by NRC.

Most of the matters for which detailed reports are not (or would not be) submitted to the Commission involve administrative, routine compliance or routine operational matters.

All such documents pertain to permissible activity within the scope of the license so that during annual inspections (or inspections triggered by a problem), NRC will be able to review all underlying documents to assess the propriety of actions taken by licensees. If there is a substantive problem or violation, it will be duly noted in the Commission's inspection report and there is always the possibility of enforcement action. Just as the Commission has determined that it is not necessary to the protection of the public health and safety and the environment to interject the NRC into a facility's day-to-day management decisions, it is also true that it is not necessary or appropriate for the public to be involved in such day-to-day matters. This is particularly true where the documents contain technical information that without the relevant expertise and context may be subject to misinterpretation by the general public.

Indeed, NRC's proposed PBLC policy is in keeping with the federal government's efforts to be more efficient. NRC's approach is consistent with President Clinton's Executive Order 12866 which directs agencies to "specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt. "1 Executive Order 12866 further mandates that "[e]ach agency shall avoid regulations that are inconsistent, incompatible, or duplicative with its other regulations or those of other federal agencies." Id. Much of the data that would be most relevant to an organization like OCRE is submitted to the Commission by NRC licensees. Uranium recovery facilities must send NRC extensive data on health physics, environmental monitoring and financial ssurance, as well as numerous other reports and data requested by the Commission. The proposed amendments to 10 C.F.R. Part 9, in many instances, would lead to an inefficient use of NRC and licensee time and resources. Time and time again history has demonstrated that when a regulatory agency is inundated with paper and excess information, most of it is cursorily reviewed or even unreviewed, and thus does not provide any discernible regulatory benefits.

AMC is not suggesting that the public be denied access to important nonproprietary information that NRC deems should be publicly available. AMC is merely objecting to making virtually every document related to a license available to the public even though NRC has determined that the Commission does not need to act on them to protect public health and safety. The data an agency has access to and the data the public has access to need not always be the same, and often for very good reasons, as OCRE notes, should not be the same.

For the foregoing reasons, AMC respectfully requests that NRC deny OCRE's 1

58 Fed. Reg. 51,735, 51,736 (October 4, 1993).

petition for rulemaking to amend 10 C .F.R. Part 9.

If you have any questions or we can be of further assistance, please call me at (202) 861-2876 or Anthony J. Thompson of Shaw, Pittman, Potts & Trowbridge, AMC counsel for this matter, at (202) 663-9198.

Yours very truly,

~-e0~ James E. Gilchrist Vice President

DOCKET NUMBER United States Enrichment Corporation PETITION RUi..E PRM 9 - - o<__.)

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Mr. John C. Hoyle Acting Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch Re: Ohio Citizens for Responsible Energy Petition for Rulemaking (PRM-9-2)

Dear Mr. Hoyle:

On June 13, 1994, the Nuclear Regulatory Commission ("NRC," or "Commission")

published in the Federal Register (59 Fed. Reg. 30308) notice of receipt of a petition for rulemaking filed by Ohio Citizens for Responsible Energy ("OCRE"). OCRE requests that the NRC amend its regulations in 10 C.F .R. Part 9 to require licensees and other "possessors" 1! to provide broad public access to documents maintained by such parties, but not submitted to the NRC. OCRE's petition would require public disclosure of a wide range of documents over and above the large number of agency records already available to the public through existing statutes and NRC regulations.

The United States Enrichment Corporation ("USEC," or "Corporation") submits the following comments on OCRE's rulemaking petition. As discussed below, while USEC fully supports the public's right to be informed regarding activities regulated by the NRC, the wide-ranging public access to internal Corporation documents proposed in OCRE' s petition goes well beyond any public disclosure requirements that otherwise would be imposed upon USEC as a federal government agency, or ultimately as a private corporation. The broad disclosure requested by OCRE is beyond the NRC's statutory authority and inappropriate as a matter of public policy.

It also would contravene the balance struck by Congress with respect to the disclosure of USEC documents. USEC urges the NRC to deny OCRE' s petition.

1/ "Possessor" would expressly include "any holder of or applicant for a certificate of compliance or approved compliance plan under part 76." 59 Fed. Reg. 30309.

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I. Summary of Petition OCRE's proposal would amend 10 C.F.R. Part 9 to permit any member of the public to request "any record relevant to NRC-licensed or regulated activities held by a possessor." 59 Fed.

Reg. 30309. The licensee or possessor would be required to respond to a request within thirty

"(30)" days, and could refuse such a request "only if' the requested records "have absolutely no relevance to any activity, facility, or material licensed or regulated by the NRC," or if certain other criteria related to trade secrets, personnel information, safeguards information or other matters are satisfied. Id. at 30309, 30310. Requestors would only be required to pay "reasonable reproduction fees," and would not bear the personnel and other administrative costs of search, retrieval or review of records. Id. at 30310. Requestors could appeal a denial of a request for documents to an Atomic Safety and Licensing Board ("ASLB"), which would use "informal procedures" to process the appeal. Id. ASLB decisions would be binding and subject to no further administrative appeals or judicial review. Id.

II. NRC Lacks the Statutory Authority to Adopt the Proposed Rule OCRE cites no statutory authority for its proposed rule, despite the fact that it would dramatically expand current NRC requirements for granting public access to documents. As discussed below, the Commission does not have the statutory authority to mandate public disclosure of documents within USEC's possession and control.

A. The FOIA Fails to Provide the Authority to Promulgate the Proposed Rule 10 C.F .R. Part 9 implements, among other statutes, the Freedom of Information Act

("FOIA"). 5 U.S.C. § 552 (1988). It is well settled that FOIA only permits access to agency records. See, e.g .. Sterling Drug Inc. v. FTC, 450 F.2d 698 (D.C. Cir. 1971). The Supreme Court has held that two requirements must be satisfied for requested materials to qualify as "agency records" under FOIA.

First, the agency must "either create or obtain" the requested materials. Second, the agency must be "in control" of the requested materials at the time the FOIA request is made.

"Control" means that the materials have come into the agency's possession in the legitimate conduct of its official duties. United States Department of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989). Clearly, documents held by USEC or licensees are not NRC "agency records" and therefore are not subject to public disclosure by the NRC under FOIA.2/ The Commission, however, lacks the statutory authority under FOIA to grant OCRE's petition. Nothing in FOIA

.Y USEC as a federal agency and instrumentality is itself subject to FOIA. USEC has promulgated its own regulations to fulfill its statutory obligations under the Act. See 10 C.F .R. Part 1102. The public, therefore, can request disclosure of USEC documents directly from the Corporation pursuant to USEC's regulations. As explained below, however, the rule proposed by OCRE would conflict with USEC's obligations under FOIA and USEC's regulations.

grants to agencies the authority to require private entities or other federal agencies to disclose documents to private parties. Indeed, the OCRE proposal seeks to impermissably turn FOIA on its head.JI Thus, the NRC may not, under FOIA, compel a regulated entity to provide documents to a third party that the NRC itself has not requested and received.

B. The AEA Fails to Provide the Authority to Promulgate the Proposed Rule 10 C.F.R. Part 9 is also based upon section 161 of the Atomic Energy Act ("AEA"), 42 U.S.C. § 2201 (1988 and Supp. IV 1992). While section 161 provides the NRC with broad general authority to carry out its regulatory responsibilities, that general authority should not be read to justify broad public access to corporate documents without any clear regulatory justification. Provision of such documents to third parties does not contribute to, or assist the NRC in carrying out, the NRC's regulatory responsibilities under the AEA. Current regulations provide the NRC with more than adequate authority for the Commission to gain access to corporate documents held by NRC licensees (or certificate holders under the currently proposed regulations) necessary for the NRC to fulfill its regulatory function. Similarly, the NRC also has more than adequate authority to require NRC licensees (or a certificate holder) to provide copies of such documents to the NRC. Once in the possession of the NRC those documents are subject to disclosure to the public pursuant to the provisions, privileges and exemptions of FOIA.

Nothing in the AEA suggests that the NRC has the authority to grant to third parties the right to require licensees (or certificate holders) to disclose documents that the NRC itself has failed to require of the licensee (or certificate holder) or that would not be disclosed under FOIA.1/

JI OCRE's proposal also would turn FOIA's disclosure provisions into an inappropriate discovery tool. Members of the general public would have access to documents that would otherwise be available, if at all, only if they were engaged in litigation. Federal courts have concluded that Congress did not intend that FOIA be used as a broad discovery tool. See Electri-Flex Co. v. NLRB, 412 F. Supp. 698, 702 (N.D. Ill.

1976); Roger J. Au & Son, Inc. v. NLRB, 405 F. Supp 1200 (W.D. Pa. 1976), aff d, 538 F.2d 80 (3d Cir. 1976).

1/ The Privacy Act (5 U.S.C. § 552a) and the Government in the Sunshine Act (5 U.S.C.

§ 552b) also provide statutory authority for Part 9 regulations. However, these statutes have no relevance to and provide no support for OCRE' s proposal. The purpose of the Privacy Act is to give "individuals greater control over the gathering, dissemination, and accuracy of agency information about themselves." Miller v.

United States, 630 F. Supp. 347, 348 (E.D.N.Y. 1986)(emphasis added). The Government in the Sunshine Act requires that all agency meetings be open to the public unless the meeting falls within one of the exemptions to the Act. The only records potentially subject to disclosure under the Government in the Sunshine Act are transcripts, electronic recordings, or minutes of meetings of the Commission. Other statutory bases for Part 9 regulations include section 201 of the Energy Reorganization Act ("Establishment and Transfers"), and 31 U.S.C. § 9701 ("Fees and charges for (continued ... )

III. OCRE's Proposed Rule Conflicts with FOIA As applied to USEC, OCRE's proposed rule directly conflicts with FOIA. First, the proposed rule would require USEC to adhere to different procedures and standards than that mandated by FOIA. For example, it provides for different time periods, review procedures and rights of appeal than mandated by FOIA. Second, the proposed rule would eliminate several exemptions from public disclosure contained in the FOIA and currently available to USEC as a government agency. For example, OCRE's proposed rule does not include the FOIA exemptions for documents relating to internal personnel rules and practices, records exempted from disclosure by statute, inter-agency and intra-agency memoranda or letters not available by law except in litigation with the agency, and certain records compiled for law enforcement purposes. The NRC cannot and should not adopt a rule that would eliminate exemptions contained in FOIA and to which USEC is currently subject.

IV. OCRE's Petition is Contrary to Public Policy OCRE argues that its request strikes an appropriate balance between the public's right to know and the rights of licensees and possessors. Under OCRE's proposal, any member of the general public could require USEC to produce virtually any document that mentions or in any way relates to "any activity, facility, or material . . . regulated by the NRC." With few exceptions, those documents that have "absolutely no relevance" to such activities, facilities or materials would be the only documents exempt from disclosure.

The public clearly has a legitimate interest in access to information relating to USEC's regulated activities and operations, and under proposed 10 C.F.R. Part 76, USEC will be required to routinely provide to the NRC numerous reports and documents that the NRC has determined are appropriate and necessary in the ordinary course of the regulatory process. OCRE' s request, however, would require the disclosure of documents without any prior determination by the NRC that the documents are appropriate or necessary to fulfill the NRC's regulatory responsibilities or to fully inform the public. The "balance" proposed by OCRE would be one established by the vagaries of the unfettered actions of private individuals and not the considered actions of a regulatory body bounded by constitutional, statutory and public policy considerations.

Furthermore, Congress already has struck the "appropriate balance." Private corporations, unregulated by the NRC, generally are not required to provide public access to internal corporate 1/(... continued)

Government services and things of value"). However, neither provision provides the Commission with the authority to mandate public disclosure of documents controlled and possessed by USEC.

documents. 'Ji Of course, once a company seeks an NRC license or certificate, it relinquishes some measure of privacy and can reasonably anticipate that those aspects of its business and operations of regulatory significance will be open to review by the regulator and, at least to some degree, to public disclosure.

The FOIA establishes the Congressionally mandated balance between the public's "right to know" and the rights of the regulated entity. Under FOIA, the public may request those documents which constitute "agency records", but may not obtain access to other documents which remain within the possession and control of the licensee. Such a limitation establishes an appropriate threshold by providing public access to those documents that have a legitimate regulatory purpose -- documents requested or required to be provided to the agency in order for it to conduct its regulatory functions.

OCRE' s request, on the other hand, would set a vague and overly broad standard. It would require production of documents with no nexus to any specific regulatory matter, simply because the documents relate to, address or mention an NRC-regulated facility or activity.

Furthermore, imposing such a broad public disclosure obligation would not be consistent with federal government initiatives undertaken to reduce the burdens imposed by regulation, reduce costs and increase efficiency. Once USEC becomes a private corporation, the NRC should take no action that would unnecessarily impair its ability to achieve the congressionally-mandated objectives of profitably and efficiently operating the GDPs, and maximizing the value of the Corporation to the U.S. Treasury.

USEC believes that FOIA strikes the appropriate balance between the public's right to know and the rights of regulated parties to conduct their business affairs.

V. The Proposed Rule Would Unduly Impact USEC OCRE claims that its proposal would "not require that licensees generate information that does not already exist in response to a request," and would not be excessively burdensome. 59 Fed. Reg. 30309 (1994). On the contrary, the proposal would create a significant administrative burden. Assuming that the conflicts with FOIA could be resolved,& as a federal agency, USEC would, at a minimum, be required to revise its existing FOIA regulations and may need to adopt additional regulations in order to implement the OCRE proposed rule. Further, personnel at the facilities operated by USEC and at Corporate headquarters would be required to handle the

'J.I Although USEC is not a private corporation, it is authorized under the Energy Policy Act of 1992 to "protect trade secrets and commercial or financial information to the same extent as a privately owned corporation." 42 U.S.C. § 2297b-13.

QI As previously stated, USEC believes that the rule as proposed directly conflicts with the statutory provisions of FOIA.

processing of document requests separate from other FOIA requests. Such processing would include:

• receipt, acknowledgement and tracking of the request;

• evaluation of the request to determine if it will require a document search effort, and if so, the nature and scope of the search;

• conduct of the search including interactions with document custodians;

• reviewing collected materials and screening for "relevance" or other bases for non-disclosure such as trade secrets or privileged information; and

• reproduction and transmittal of responsive documents.

Clearly, the need to dedicate personnel to perform these tasks, as well as the imposition on the duties of personnel who may be custodians of such documents, will be very costly. Furthermore, the broad scope of OCRE's request could necessitate review and possible production of massive and virtually limitless amounts of corporate documents well beyond that currently required by FOIA.

OCRE's proposed rule would require document requestors to reimburse possessors only for "reasonable reproduction fees." This proposal ignores the substantial administrative costs of document search and review, and is inconsistent with relevant FOIA provisions which generally provide for reimbursement for both document search and duplication. 5 U.S.C.

§ 552(a)(4)(A)(ii).

VI. Conclusion USEC fully supports the public's right to obtain information regarding its regulated activities. USEC already has in place procedures to reply to public requests for documents pursuant to the FOIA. OCRE's petition, however, proposes an unprecedented and burdensome intrusion into the conduct of USEC' s operations that is not justified as a matter of public policy and is contrary to statute. USEC respectfully suggests that the NRC is without statutory authority to issue the proposed rule and requests that the NRC deny OCRE' s petition.

Sincerely, JL~;oolley~A~'/

Manager Regulatory Assurance & Policy Georgia Power Company 40 Inverness Center Parkway Post Office Box 1295 Birmingham , Alabama 35201 oocKET NUMBER Telephone 205 877 -7122 pET\1\0N RULE ~M q,. , ,i__ DOCK ETED l5qf R 303 og) us:~Rc C. K. McCoy Vice President, Nuclear

• 94 AUG 22 A11 ~eorgia Power Vogtle ProJect the southern electnc system August 17, 1994 OFF ICE o,=- S:T '.: :_ *it_-~ *"*__

Docket Nos. 50-321 50-424 ooc:, EfL*T , . . . .c;.u.., 4669 50-366 50-425 JFUd.~: :; LCV-0441 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555

- ATTENTION: Docketing and Service Branch Comments on "Ohio Citizens for Responsible Energy, Inc. ; Receipt of Petition for Rulemaking" (59 Federal Register 30308 of June 13, 1994)

Dear Mr. Chilk:

Georgia Power Company has reviewed the petition for rulemaking filed by the Ohio Citizens for Responsible Energy, Inc., which was published in the Federal Register on June 13, 1994.

In accordance with the request for comments, Georgia Power Company is in total agreement with the NEI comments which are to be provided to the NRC.

9 Should you have any questions, please advise.

Respectfully submitted, Q/(IJJf I C. K. McCoy CKM/JDK SEP 2 8 1994 Acl{ncw'edged by card ......................" ..........

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U.S. Nuclear Regulatory Commission Page2 cc: Georgia Power Company J. T. Beckham, Jr., Vice President, Plant Hatch 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 Commission, Region II S. D. Ebneter, Regional Administrator B. L. Holbrook, Senior Resident Inspector - Hatch B. R. Bonser, Senior Resident Inspector - Vogtle HL-4669 LCV-0441 File: G.01.03

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Southern Nuclear Operating Company Post Office Box 1295 Birmingham, Alabama 35201 Telephone (205) 868-5131 66CKET NUMBER PETITION RULE PRM ~ - ooc~~-ETEO ~

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Dave Morey Southern*~ u@Jkfa~b,rat1hg Company Vice President Farley Project th-e59.ytp rn electnc system OFF;Gt e,;* ,=-* .: i:. {'

August 17, 1994 DO C:<.:...T;* l ~ .. ::(, ,1}*_

Docket Nos. 50-348 E !'"'; ._, fl 1

50-364 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D C 20555 ATTENTION: Docketing and Service Branch Comments on "Ohio Citizens for Responsible Energy, Inc.; Receipt of Petition for Rulemaking" (59 Federal Register 30308 of June 13, 1994)

Dear Mr. Chilk:

Southern Nuclear Operating Company has reviewed the petition for rulemaking filed by the Ohio Citizens for Responsible Energy, Inc., which was published in the Federal Register on June 13, 1994. In accordance with the request for comments, Southern Nuclear Operating Company is in total agreement with the NEI comments which are to be provided to the NRC.

Should you have any questions, please advise.

Respectfully submitted, ff1i ~

Dave Morey DNM/JDK SEP 2 8 1994 A)*row:adged by card .. - -........_.,lllllll.~

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OF THE COMMISSION Document Statistics Postmart< Date £:/ 17 / -('--I Copies Rece:*1ed I Adtfl Ccj)!{!S ReprrxJUCt:d 3 Spec:~- r-,str,butlOf' fl.:L-~- ,_f_O _{<--, .-

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U.S. Nuclear Regulatory Commission Page Two cc: Southern Nuclear Operating Company R. D. Hill, Plant Manager U. S. Nuclear Regulatory Commission, Washington, D. C.

B. L. Siegel, Licensing Project Manager, NRR U. S. Nuclear Regulatory Commission, Region II S. D. Ebneter, Regional Administrator T. M. Ross, Senior Resident Inspector

DOCKET NUMBER Kennecott Uranium Company PETI 10 ULE PRM Cf - 1 505 South Gillette Avenue Caller Box 3009 DOCKETED (5 CJ FR 303a a-')

Gillette, Wyoming 82717 US~RC (307) 687-6003 Fax: (307) 687-6011

• 94 AUG 12 A11 :26 Michael H. Gibson Vice President Kennecott 8 August 1994 Energy Secretary of the Commission U.S. Nuclear Regulatory Commission Attn: Docketing and Services Branch Washington, D.C. 20555 Gentlemen:

Kennecott Uranium Company is a uranium recovery licensee and the operator and manager of the Sweetwater Uranium Project, a uranium mill currently in stand-by status, located forty-two (42) miles northwest of Rawlins, Wyoming. Kennecott Uranium Company opposes the amendments to 10 CFR Part 9 suggested by Ohio Citizens for Responsible Energy (OCRE) for the following reasons:

1. Cost of the Proposed Amendments The propo ed amendments could add significantly to regulatory costs incurred by licensees. Currently Nuclear Regulatory Commission (NRC) licensees have to pay large license fees and hourly charges assessed by the NRC. In addition, licensees have to spend varying sums of money maintaining radiation safety programs to comply with RC regulatory requirements. The amendments to 10 CFR Part 9 proposed by OCRE would add to the cost of the radiation safety program in spite of the fact that the amendment allows the possessor to require the requestor to pay reasonable reproduction fees. Costs in addition to reproduction fees would be incurred in responding to requests for records from the public. These costs include but are not limited to:

1.1 Staff hourly charges for:

1.1.1 Document location.

1.1.2 Determination if the documents are publicly available.

1.1.3 Determination if the documents are relevant and if they are relevant, that they contain no classified, confidential, personal, medical, or safeguards information exempted from disclosure under 9.304 (b)(S) of the proposed rule.

1.1.4 Document copying (in addition to the actual copying cost).

Kennecott Energy Company provides marke~ng and other services on behalf of Cordero Mining Company, Antelope Coal Company, Spnng Creek Coal Compeny and Kennecott Uranium Company SEP 2 8 1994

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1.1.5 Document filing.

1.1.6 Document mailing.

1.2 Mailing costs

2. Redundancy In the case of uranium recovery licensees, very little data that is gathered in the course of health physics and environmental monitoring is not submitted to the NRC in the form of various required reports. The Sweetwater Uranium Project is required to submit by regulation or license condition the following reports listed in the table below:

Report Name Frequency Requirement Contents 40.65 Report Semiannual 10 CPR 40.65 Environmental monitoring data Groundwater Report Semiannual License condition Groundwater sample data "As Low As Reasonably Annual License condition Health physics data Achievable" Report Corrective Action Annual License condition Corrective action program Program Review review Land Use Report Annual License condition Land use information In addition, the licensee is required to submit other data at various times as requested by the NRC. A large portion of the information covered by the amendments proposed by OCRE is already being submitted to the NRC by uranium recovery licensees. In many circumstances, these proposed amendments are redundant.

3. Erosion of NRC Regulatory Control The NRC is charged with protection of public health and safety and the environment. The NRC inspects its licensees and the inspectors review records related to the license during the inspection. NRC personnel are trained in the interpretation of these records, some of which may contain radiological monitoring data and/ or analyses of various types. Some of this data can only be interpreted by individuals with specific training and/ or site specific knowledge. Dissemination of this information in a raw form without knowledgeable interpretation and processing could lead to wholly erroneous conclusions being drawn about a licensee by the group requesting the data or by individual members of the general public.

Such action would not serve the best interests of the NRC, the licensee, the nuclear industry or the general public. Should an NRC inspector discover a violation of the regulations or of a license condition in the course of reviewing license related

documents during an inspection, this fact is noted in the inspection report which is available to the public.

These proposed amendments to 10 CFR Part 9 erode NRC regulatory control by allowing groups or individual members of the general public to bypass the agency and essentially audit licensee records.

The current system assures that most of the license related data is reported in various reports which are available to the general public and the remainder is reviewed by trained inspectors working for an agency charged with protecting public health and safety and the environment.

In conclusion, Kennecott Uranium Company believes that the current system of reporting by licensees coupled with onsite review of license related records by trained NRC inspectors best serves the public interest by protecting public health and safety, and the environment. A large amount of the data related to the license is already available to the general public in the form of submittals to the agency. In addition, extensive data files are subject to NRC scrutiny.

Kennecott Uranium Company appreciates the opportunity to comment on this petition. If you have any questions please do not hesitate to contact me.

~:r::t~=*~ \

Kennecott Uranium Company Michael H. Gibson Vice President OP:ss\03bAUG cc: Oscar A Paulson David Skolasinski Jim Sutherland D. P. (Mike) Svilar Kenneth J. Webber George Worman

6 South Carolina Electric & Gas Company John L. Skolds P.O. Box 88 Senior Vice President Jenkinsville, SC 29065 Nuclear Operations (803) 345-4001 DOCKETED SCE&G USHR~

ASCIUIIICompany July 29, 1994 *94 Al1G -5 P4 :20 Re f er t o: RC-94-0202 Secretary 0iFi . ,

U. S. Nuclear Regulatory Commission oc:: ~

Washington, DC 20555 Attention : Docketing and Service Branch DOCKET NUMBER PETITION RULE PRM tj-2._

Gentlemen :

(5"qFY< 3o ']of!-)

Subject:

VIRGIL C. SUMMER NUCLEAR STATION DOCKET NO. 50/395 OPERATING LICENSE NO. NPF-12 COMMENTS ON OHIO CITIZENS FOR RESPONSIBLE ENERGY INC. PETITION FOR RULEMAKING This letter provides comments on Ohio Citizens for Responsible Energy Inc. (OCRE) petition for rulemaking to change the rules regarding public access to information as stated in 10 CFR Part 9, particularly information that is held by licensees but is not submitted to the NRC.

Regarding PRM-9-2, petition to the NRC for rulemaking, South Carolina Electric &

Gas Company (SCE&G) disagrees with the petitioners position . Resulting rules would increase the administrative burden and costs to licensees while providing no benefit to public health and safety. Furthermore, lack of public access to information on nuclear regulation to the Jevel desired by the petition would not undermine public confidence in the regulatory program of the NRC.

The proposed rule would be a significant burden on licensees. One example given in the petition of information not available to the public is compliance to the Station Blackout Rule. The Station Blackout Manual documents compliance to the Station Blackout Rule at V. C. Summer Station and contains dozens of references. Some of those reference documents have references themselves. The Appendix R Design Basis Document, referenced in the Station Blackout Manual, has 219 references.

Screening the references along with the manual for relevance or proprietary information would significantly increase the burden on licensees. This burden would be multiplied for every separate request for information on Blackout Rule compliance received .

This increased burden could impede the normal work processes of a licensees staff.

The licensee could receive numerous individual requests for information from groups such as OCRE, as well as private citizens. Even if a request were deemed frivolous, the licensee could be forced to prove this under the appeal process mentioned in the proposed rule. This added work load would increase administrative costs to the licensee while providing no real benefit to the health and safety of the public. Additionally, this proposed rule is not in the best interests of the customer since added costs to licensees would in turn result in added costs to their customers.

A , SEP 2 8 19~

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Secretary, U. S. Nuclear Regulatory Commission PR 940015 Page 2 of 2 Aside from the added burden to licensees, failure to implement the proposed rule would not undermine the public confidence in the NRC regulatory process. Public confidence in the NRC regulatory process, we believe, comes from the continued safe operation of NRC regulated facilities, not the level of access the public has to licensee information.

Considering that the proposed rule would increase the administrative burden and costs to licensees while providing no benefit to public health and safety, and that, contrary to the petition, lack of public access would not undermine public confidence in the regulatory program of the NRC, SCE&G does not agree with this petition. Under the current program, information relevant to a licensee's compliance to regulations such as the blackout rule is located in NRC inspection reports which are available to the public. It is the opinion of SCE&G that this program, which allows meaningful public participation in the regulatory process with no undue burden on licensees, should be maintained.

SCE&G appreciates the opportunity to review and provide comments on this petition f or rulemaking .

~~

John L. Skolds JDH/JLS/nkk c: 0. W. Dixon R.R. Mahan R. J. White D. A. Lavigne K. W. Nettles M. D. Quinton G. J. Taylor Central File System NSRC RTS (PR 940015)

File (811.02, 9.003)

NUCLEAR EXCELLENCE -A SUMMER TRADITION!

DOCKET NUMBER David A. Lochbaum PETITION RULE PR~ _q --1=: 80 Tuttle Road Nuclear Engineer (SC/ fR. JOJO~ Watchung, NJ 07060 (908) 754-3577 DOCKETED USNRC July 5, 1994 Secretary of the Commission *94 JUL -8 P1 2 :40 U.S. Nuclear Regulatory Commission Washington, DC 20555 OFFI CE OF SECRETARY Attention: Docketing and Service Branch OOCKETl t 1 & SERVICE BRANCH

SUBJECT:

COMMENTS ON DOCKET NO. PRM-9-2, OCRE PETITION FOR PUBLIC ACCESS TO LICENSEE DOCUMENTS

Dear Mr. Secretary:

In response to the notice published in the Federal Register on June 13, 1994 (FR 30308) concerning the petition by the Ohio Citizens for Responsible Energy, Inc (OCRE) for a change in 10 CFR Part 9, I respectfully submit the following comments:

1) My personal experience supports OCRE's contention that some licensee's submit only conclusory statements to the NRC indicating that all requested actions have been completed and detailed records are available at the facilities for NRC review if desired. Since this method of compliance effectively denies the public access to documents which would be publicly available if these documents were submitted with the licensee's statement, the proposed change to 10 CFR Part 9 is justified.

2) The proposed Subpart E to 10 CFR Part 9 as worded in the Federal Register notice is too general with respect to the domain of records covered by the rule. In particular, proposed Section 9.303 addresses

"... any record relevant to NRC-licensed or regulated activities ... ". In reality, this domain should only cover those records used by the licensee to support a docketed submittal (i.e., those records which could have been included with the submittal). This problem could be eliminated by requiring the licensee to clearly designate those "detailed records" upon which it relies when submitting a conclusory statement on the docket. This requirement would define the scope of licensee documents available to the public under the proposed change to 10 CFR Part 9.

3) The proprietary information exemption permitted under Section 9.304(b)(5)(iii) could be used by licensees to essentially block all public access to these records. The licensees would need to simply designate records they prepared to support their response as "proprietary information" and invoke this clause in response to a public request. Any proposed change to 10 CFR Part 9 must not prevent the wholesale handling of licensee-prepared records as "proprietary information."

The proposed change to 10 CFR Part 9, with the above considerations resolved, would further promote public acceptance of commercial nuclear power by eliminating the perception that public access to records with a longstanding tradition of being available is being consciously and deliberately restricted. Therefore, I fully support the proposed rulemaking.

Sincerely,

~IUIU/arf)L-David A. Lochbaum Acknow.edged by card ..,_SEP

..._,2__

8 1994_

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• 94 JUL -5 p 3 :1B Marvin I. Lewis 3133 Fairfield Street Philadelphia, PA 19136 (215)676 1291 8bfkirrP:G {~1~~~J 5

BRANCH Secretary c,f-Nuc lear Regulatory Commission Washington, D. C. 20555 Attention: Docketing and Service Branch Dear Secretary; Please accept this letter as my comments on the 10CFRPart9 A}o c ket Ne,. PRM-9-2 > Petit i c,n fc,r Ru l emak i ng by OCRE. This

~ , i tion concerns the illegal and unfair ruse by which the NRC is allowing licensees to withold public access to licensee held information. I explained how this is accomplished with the complicity of the NRC and the licensee in my comments on the rule 10 CFR Chapter 1: NRC Program for elimination of requirements marginal to safety. I explained how this maneuver kept information away from the public and how keeping this information inaccessible increased the dangers.

I respectfully wish to join and extend the petition of OCRE to rules which have already been passed where the effect is to keep information out of the public view.

Respectfully submitted,

~ /4

- 6---30**-9Li.

P. S. Please send OCRE's address as I lost it many years ago.

• JUL 2 1 1994 Acknowledged by card ..- - * ..,_.,_

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DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Stadstics 1Dslrnm Date 7 / L l f('--1 f,oplesReceived _ _ __ _ _ __

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DOCKET NUMBER "* _ ."'-'t.ffl"* 4 PETITION RULE PRM ~ DOCKETED (5qFR303ot) s~r ~ 90 PJ

• 94 JUL -5 P12 :Q9 NUCLEAR REGULATORY COMMISSION 10 CFR PART 9 (Docket No. PRM-9-2)

Ohio Citizens for Responsible Energy, Inc.;

Receipt of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; Notice of receipt.

SUMMARY

The Nuclear Regulatory Commission (NRC) is publishing for public comment a notice of receipt of a petition for rulemaking dated February 10, 1994, which was filed with the Commission by Ohio Citizens for Responsible Energy, Inc. (OCRE).

The petition was docketed by the NRC on February 15, 1994, and has been assigned Docket No. PRM-9-2. OCRE filed an amendment to the petition which was docketed by the NRC on April 11, 1994.

The petitioner requests that the NRC amend its regulations to establish public right-to-know p rovisions that would ensure public access to licensee-held information.

-} 2-'t /1'-/

DATE: Submit comments by (75 days after publication in the Federal Register). Comments received after this date will be considered if it is practical to do so but the Commission is able to ensure consideration only for comments received on or before this date.

ADDRESSES: Submit written comments to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch.

Deliver comments to 11555 Rockville Pike, Rockville, Maryland, between 7:45 am and 4:15 pm on Federal workdays.

For a copy of the petition, write the Rules Review and Directives Branch, Division of Freedom of Information and Publications Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

- The petition and copies of comments received may be inspected and copied for a fee at the NRC Public Document Room, 2120 L Street, NW. (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Chief, Rules Review Section, Rules Review and Directives Branch, Division of Freedom of Information and Publications Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington,

- DC 20555, Telephone: 301-415-7163 or Toll Free: 800-368-5642.

SUPPLEMENTARY INFORMATION:

Background

The regulations specified in 10. CFR Part 9 address the public's right of access to information held by NRC. Subpart A prescribes procedures for making NRC agency records available to the public for inspection and copying under the Freedom of Information Act (FOIA) and provides notice of procedures for 2

obtaining NRC records otherwise publicly available. Subpart B implements the provisions of the Privacy Act of 1974 with respect to the procedures by which individuals may determine the existence of, seek access to, and request correction of NRC records concerning themselves. Subpart B also covers the requirements applicable to NRC personnel with respect to the use and dissemination of such records.

The Petitioner On February 10, 1994, OCRE filed a petition for rulemaking under 10 CFR 2.802 with the NRC. OCRE filed an amendment to the petition on April 11, 1994. The petitioner is a private, not-for-profit organization incorporated under the laws of the State of Ohio. OCRE specializes in research and advocacy on nuclear safety issues and supports the highest standards of safety and environmental protection. OCRE also supports the right of

- meaningful public participation in the regulation of nuclear facilities. The petitioner was an intervenor in the operating license proceeding for the Perry Nuclear Power Plant and has intervened in three operating license amendment cases regarding Perry.

Reasons for the Petition According to the petitioner, the purpose of the petition is to request a change to the rules regarding public access to 3

information as stated in 10 CFR Part 9, particularly information that is held by licensees but is not submitted to the NRC. OCRE contends that it has observed a trend in the NRC's regulatory practice in the past several years that decreases the amount of information to which the public has access. The petitioner believes that this trend is apparent in NRC bulletins and generic letters issued over the past six years. OCRE states that these documents instruct licensees to send conclusory statements that they have completed the requested actions to the NRC instead of instructing licensees to send the NRC detailed documentation and analyses of their actions. The detailed records are kept at the plant site where they are accessible only to NRC inspectors. The petitioner is particularly concerned because if these materials are never sent to the NRC, they will not get into the Public Document Room and the public will never have access to them.

OCRE further states that the materials will not even be obtainable under the FOIA unless an NRC inspector_happens to make 4lt a copy of the requested documents and the documents are still in the agency's possession at the time the FOIA request is filed.

OCRE refers to the Station Blackout rule in §50.63(a) (2),

which states that "the capability for coping with a station blackout of specified duration shall be determined by an appropriate coping analysis. Utilities are expected to have the baseline assumptions, analyses, and related information used in their coping evaluations available for NRC review." It is not

,apparent to the petitioner that this material is actually sent to 4

the NRC and made publicly available.

The petitioner believes that other regulatory trends are also decreasing public access to information. OCRE states that the Technical Specification Improvement Program encourages the removal of material from the plant technical specifications and the relocation of it to internal plant documents. The petitioner included a list of recent generic letters that enable licensees to relocate material from the plant technical specifications, a public document, into other plant documents that may not be available to the public. According to the petitioner, about 36 percent of current technical specification material will be relocated to internal plant documents under this program.

The petitioner states that NRC's revised rules of practice place an even greater burden on public petitioners to provide as much documentation and factual basis for contentions as early as possible while the access of petitioners to detailed information is diminishing. The petitioner further states that if detailed information is, never submitted to the NRC, and thus never becomes accessible to the public, participants in proceedings will never be able to supply a basis sufficient to support admission of contentions under the new rules of practice.

OCRE believes that lack of public access to information on nuclear regulation undermines public confidence in the NRC's regulatory program and is contrary to the public's statutory right to participate in the NRC regulatory process. The petitioner also states that members of the public cannot fulfill 5

the role of participating in the NRC regulatory process, which Congress has bestowed upon them, without access to the detailed information that current NRC policies are placing beyond the public's reach.

In the amendment to the petition, OCRE cited two additional examples of the lack of public access to licensee-held information. The first example is NRC's proposed rule entitled "Codes and Standards for Nuclear Power Plants; Subsection IWE and Subsection IWL" (59 FR 979, January 7, 1994), which states that "In order to further reduce the burden on licensees and NRC staff, the Subsection IWE and IWL portions of the ISI plan will not have to be submitted to the NRC for approval. Licensees may simply retain their initial Subsection IWE and Subsection IWL plans at the site for audit." The second example. is NRC's final rule entitled "Storage of Spent Fuel in NRC-Approved Storage Casks at Power Reactor Sites" (55 FR 29161, July 18, 1990) which does not appear to require nuclear power plant users of the approved storage casks to submit their site-specific evaluations, as required by S72.212(b){2), to the NRC. This section states that "A copy of this record must be retained until spent fuel is no longer stored under the general license issued under S72.210."

The petitioner further states that S72.212(b) (10) only requires that general licensees make records available to the NRC for inspection.

In the amendment to the petition, the petitioner amended the language in its suggested §9.301(b) to include persons required 6

by the proposed rule entitled "Certification of Gaseous Diffusion Plants," published on February 11, 1994 (59 FR 6792), to obtain NRC certification of gaseous diffusion plants under proposed Part 76 in the definition of "possessor." OCRE requests that the NRC clarify that this proposed definition would include entities authorized to dispose of radioactive materials.

The petitioner recommends a change to Part 9 to establish the public's right-to-know and to provide the public access to copies of internal plant documents, subject to the exceptions necessary to protect sensitive information. The suggested amendment would not require that licensees generate information that does not already exist in response to a request. The petitioner believes that its suggested amendment would strike a proper balance between the public's right to know and the rights of the licensees.

The petitioner's suggested amendment would include appeal procedures. If a requester is not satisfied with a licensee's response to a request for information, the requester could appeal the matter to an Administrative Law Judge on the Atomic Safety and Licensing Board Panel. According to the petitioner, this option is the most appropriate and efficient one for appeals.

OCRE believes that its suggested amendment to Part 9 would impose a minimal burden on licensees and that this minor burden would be justified by the substantial increase in meaningful public participation. According to the petitioner, the proposed amendment to Part 9 would also enhance the public's confidence in 7

the NRC's regulatory program.

The Suggested Amendments The petitioner requests that the NRC amend 10 CFR Part 9 by adding Subpart E to read as follows:

Subpart E - Public Right of Access to Licensee-Held Information

§9.300 Scope of Subpart.

This subpart establishes the public's right of access to licensee-held information, subject to certain exceptions. This subpart sets forth the procedures to be followed by persons requesting documents held by NRC licensees or applicants and by the licensees or applicants in responding to requests for documents. This subpart also establishes procedures for appealing adverse licensee responses to public requests for records.

§9.301 Definitions.

As used in this subpart, (a) "Person" has the meaning given in 10 CFR 2.4.

(b) "Possessor" means any holder of or applicant for any license to possess, use, dispose of, and/or transfer source material, byproduct material, special nuclear material, and/or spent fuel, or to construct, manufacture, possess, own, operate, and/or transfer any production or utilization facility or 8

/

independent spent fuel storage installatioh, or any holder of or applicant for any construction permit, or any holder of or applicant for an early site permit under Subpart A of 10 CFR Part 52, or any holder of or applicant for a standard design certification under Subpart B of Part 52, or any holder of or applicant for a certificate of compliance or approved compliance plan under Part 76.

(c) "Record" means any document, writing, book, data, paper, brochure, photograph, punch card, magnetic tape or disk, paper

- tape, sound recording, pamphlet, slide, motion picture, map, drawing, graph, correspondence, contract, report, microfilm, microfiche, optical storage medium, or other documentary material, regardless of form or characteristics, made by, in the possession of, or under the control of a possessor.

§9.302 Designation of Responsible Official.

Each possessor shall designate, by naine or title, a responsible official to whom requests for records are to be sent.

Each possessor shall report to the NRC the name and/or title of the responsible official so designated. Possessors shall promptly notify the NRC, in writing, of any changes to the name or title of the designated responsible official. The NRC will periodically publish a list of possessors and their designated responsible officials.

9

S9.303 Procedure for Requesting Records.

Any person may request any record relevant to NRC-licensed or regulated activities held by a possessor. The request shall be made in writing and sent to the responsible official designated by the possessor. The requester should describe the records sought with reasonable specificity.

§9.304 Response by Possessor.

- (a) A possessor receiving a request for records shall respond to the request within thirty (30) days from the receipt of the request by the designated responsible official.

(b) The possessor's response shall consist of one or more of the following options:

(1) If the records requested do not exist or are not within the possession or control of the possessor, inform the requester of this fact.

(2) If the records requested are publicly available, inform the requester of this fact and where the records may be obtained.

(3) Place the records requested in the NRC's Public Document Room in Washington, DC, or in a Local Public Document Room near the possessor's facility or convenient to the requester, and inform the requester where the records may be obtained.

(4) Provide the records directly to the requester. The possessor may require the requester to pay reasonable reproduction fees.

10

(5) The possessor may refuse to disclose the requested records only if one or more of the following criteria are met:

(i) The requested records have absolutely no relevance to any activity, facility, or material licensed or regulated by the NRC.

(ii) The requested records contain personnel or medical files or similar personal information, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. However, records pertaining to the requester shall be 4t disclosed directly to the requester or his or her designated legal representative.

(iii) The requested records contain trade secrets or proprietary information or privileged or confidential commercial or financial information.

(iv) The requested records contain safeguards information, as defined in 10 CFR Part 73.

(v) The requested records contain material that has been properly classified in the interests of national defense or foreign policy.

(vi) The requested records contain information that would disclose the identity of a confidential source or reveal information furnished only by a confidential source, the disclosure of which would tend to reveal the source's identity.

(c) Any reasonably segregable portion of a record shall be provided to the requester or placed in the Public Document Room after deletion of the portions that are exempt under paragraph 11

(b)(5).

(d) Unless disclosure of the record is prohibited by law, a possessor may disclose a record containing material exempt under paragraph (b} (5) directly to the requester upon the execution of an appropriate protective agreement.

S9.305 Appeals.

(a) A requester may appeal a possessor's response for denial of access to the requested records, for charging excessive reproduction fees, or for lack of response by the possessor within the designated time limits.

(b) Appeals shall be made by f.iling a notice of appeal with the Chairman of the Atomic Safety and Licensing Board Panel. The notice of appeal shall be filed within sixty (60) days of the possessor's final response and shall include:

(i) a copy of the requester's original letter of request; (ii) a copy of the possessor's response(s), or a statement that the possessor has not responded to the request; (iii) an explanation of why the possessor's response is inadequate, erroneous, or otherwise unacceptable, or why the reproduction fees charged by the possessor are excessive.

(c) Upon the receipt of a notice of appeal under this section, the Chairman of the Atomic Safety and Licensing Board Panel shall appoint an Administrative Law Judge to consider the appeal. The Administrative Law Judge shall utilize whatever informal procedures are deemed necessary to resolve the matter 12

and may examine in camera the requested records to determine whether such records or any part thereof may be withheld under the exemptions specified in S9.304(b)(5). The burden of proof is upon the possessor to sustain its actions.

(d) The decision of the Administrative Law Judge shall be binding on the possessor. Decisions of the Administrative Law Judge shall be final and are not subject to further administrative appeals or judicial review.

- S9.306 Penalties.

Refusal of a possessor to comply with an order of the Administrative Law Judge may be subject to enforcement action by the NRC.

Dated at Rockville, Maryland, this 7~ day of June, 1994.

For the Nuclear Regulatory Commission.

L le, of the commission.

13

DOCKET NUMBER ff J_

PETITIO, RULE PAM ..,

April 9, 1994 (5 q f- r2.. 30 3 of')

DOCKETED Secretary of the Commission ATTN: Chief, Docketing and Service Branch APR 11 1994 U.S. Nuclear Regulatory Commission DOCKETING &

Washington, DC 20555 ERVICE BAANC SECY-NR BY FAX (COPY MAILED AS WELL)  :-: 1*-r~

AMENDMENT TO PRM _ _ , filed by the Ohio Citizens for Responsi-ble Energy, Inc.

Dear Sir:

By this letter, petitioner Ohio Citizens for Responsible Energy, Inc. ("OCRE") is amending its Petition for Rulemaking, PRM-9-_,

dated February 10, 1994, in the following respects:

1. OCRE wishes to add these examples of lack of public access to licensee-held information to Section III., Need for Rulemaking, of the Petition:

a) the NRC's proposed rule, "Codes and Standards for Nuclear Power Plants; Subsection IWE and Subsection IWL," 59 Fed. Reg.

979 (January 7, 1994), states that "in order to further reduce the burden on licensees and NRC staff, the Subsection IWE and IWL portions of the ISI plan will not have to be submitted to the NRC for approval. Licensees may simply retain their initial Subsec-tion !WE and Subsection IWL plans at the site for audit." 59 FR 981, second column.

b) the NRC's final rule, "Storage of Spent Fuel in NRC-Approved Storage Casks as Power Reactor Sites," 55 Fed. Reg. 29181 (July 18, 1990) does not appear to require nuclear power plant users of the approved storage casks to submit their site-specific evalua-tions, required by 10 CFR 72.212(b)(2), to the NRC. Rather, this section states that "a copy of this record must be retained until spent fuel is no longer stored under the general license issued under Section 72.210." And, 10 CFR 72.212(b)(10) only requires that general licensees make records available to the NRC for inspection.

2. OCRE wishes to amend the language in its proposed 10 CFR 9.30l(b) to include persons required by the NRC's proposed rule, "Certification of Gaseous Diffusion Plants," 59 Fed. Reg. 6792 (February 11, 1994), to obtain NRC certification of gaseous diffusion plants under proposed 10 CFR 76 in the definition of "possessor". OCRE would also clarify that this proposed defini -

tion would include entities authorized to dispose of radioactive 1

materials. As amended, OCRE's proposed 10 CFR 9.30l(b) would read:

(b) "possessor" means any holder of or applicant for any license to possess, use, dispose of, and/or transfer source material, byproduct material, special nuclear material, and/or spent fuel, or to construct, manufacture, possess, own, operate, and/or transfer any production or utilization facility or independent spent £uel storage installation, or any holder of or applicant for any construction permit, or any holder of or applicant for an early site permit under Subpart A of 10 CFR 52, or any holder of or applicant for a standard design certification under Subpart B of 10 CFR 52, or any holder of or applicant for a certificate of compliance or approved compliance p l an under 10 CFR 76.

Respectfully submitted, Susan L. Hiatt Director, OCRE 8275 Munson Road Mentor, OH 44060-2406 (216) 255-3158 2

OHIO CITIZENS FOR RESPONSIBLE ENERGY. INC.

8275 MUNSON ROAD MENTOR, OHIO 4406~ - -

(216) 255-3158 fj'y' c- )'

\ 11 h,

y r$,*-::1EO Februarv- 10, 1994 l)OCKE1 NUMBER ** q-"J__ o .- ,.. 1*

~ " ~ o RULE PRM ** - oo £, \ \j 'f~~I-\

Secretary of the Commission CS6/ F fl 3 OJ O fs' \'~~t~i:at st; ATTN: Chief, Docketing and Service Branch . ~scc){.. <u U. S. Nuclear Regulatory Commission J; l...,..._ " 'i Washington, DC 20555 I I1/2\,_

Dear Sir:

The Ohio Citizens for Responsible Energy, Inc. ("OCRE") is sub-mitting the enclosed Petition for Rulemaking, PRM _ _ , to the NRC for consideration pursuant to Subpart H to 10 CFR Part 2, 10 CFR 2.800 et seq. This Petition for Rulemaking would establish public right-to-know provisions which would ensure public access to licensee-held information.

OCRE requests that the NRC publish this Petition for Rulemaking in the Federal Register for public comment and give serious consideration to the issue raised and the remedy proposed there-in.

Sincerely, Susan L. Hiatt Director, OCRE

PRM _ _

PETITION FOR RULEMAKING FILED BY OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC.

I. Introduction Pursuant to Subpart Hof 10 CFR Part 2 1 the Ohio Citizens for Responsible Energy, Inc. ("OCRE") is filing this petition for rulemaking with the Nuclear Regulatory Commission to amend 10 CFR Part 9 to include public right-to-know provisions for access to licensee-held information.

II. Description of the Petitioner Petitioner OCRE is a private, not-for-profit organization incor-porated under the laws of the State of Ohio. OCRE specializes in research and advocacy on nuclear safety issues and supports the highest standards of safety and environmental protection. OCRE also supports the right of meaningful public participation in the regulation of nuclear facilities. OGRE was an intervenor in the operating license proceeding for the Perry Nuclear Power Plant, and has intervened in three operating license amendment cases regarding Perry. OCRE is also a frequent participant in rulemak-ing and policy matters before the NRG.

Access to information, including that held by licensees but not submitted to the NRC, is vital to*OCRE's mission.

III. Need for Rulemaking OCRE has observed a trend in the NRC's regulatory practice in the past several years which is decreasing the amount of information to which the public has access. This trend is apparent in NRC bulletins and generic letters issued over the past six years.

These documents, rather than instructing licensees to send to the NRC detailed documentation and analyses, now instruct them to send conclusory statements that they have completed the requested actions, while keeping the detailed records on the plant site, where they are accessible only to NRC inspectors. If these materials are never sent to the NRC, they will not get into the Public Document Room, and the public will never have access to them. They will not even be obtainable under the Freedom of Information Act, unless an NRC inspector just happened to make a 1

copy of the requested documents and still had the documents in the agency's possession at the time the FOIA request is filed.

The following are a few examples of such generic communications:

• IE Bulletin 88-07, "Power Oscillations in Boiling Water Reac-tors (BWRs)," June 15, 1988: "Reporting Requirements:

[licensees] shall confirm by letter that the requested actions have been completed and implemented. Licensees and permit hold-ers shall document and maintain at the plant site . . . an evalu-ation of the adequacy of their procedures, training programs and the instrumentation relied upon within their procedures."

• IE Bulletin 89-02, "Stress Corrosion Cracking of High-Hardness Type 410 Stainless Steel Internal Preloaded Bolting in Anchor Darling Model S350W Swing Check Valves or Valves of Similar Design," July 19, 1989: "Reporting Requirements: . . . Address-ees who do have swing check valves subject to this bulletin shall provide a letter to the NRC . . . stating the number of valves inspected and the number of valves found to have service induced cracking of bolting. The documentation of the valve inspection to be maintained by the licensee shall summarize the inspection findings and include the items listed below." Thus, the de-tailed, substantive findings and inspection methodologies em-ployed are to be kept at the plant site.

• Generic Letter 88-20, "Individual Plant Examinations for Severe Accident Vulnerabilities," November 23, 1988. Appendix 4 details what is actually submitted to the NRC as opposed what is retained by the licensee at the plant site. The reported material is a fraction of the documentation generated by the IPE process. The validity of the submitted conclusions cannot be assessed without this supporting material.

• Generic Letter 89-13, "Service Water System Problems Affecting Safety-Related Equipment," July 18, 1989. "Rt9porting Require-ments: . . . each licensee and applicant shall advise the NRC whether it has established prograil'.l.'3 to implement Recommendations I-V of this Generic Letter . . . . The detailed documentation associated with this Generic Letter should be retained in appro-priate plant records."

• Generic Letter 89-19, "Request for Action Related to Resolution of Unresolved Safety Issue A-47 'Safety Implications of Control Systems in LWR Nuclear Power Plants*, " September 20, 1989. The reporting requirement consists of a statement that the recommen-dations in Enclosure 2 of the Generic Letter will be implemented, with a schedule for implementation and a basis for that schedule, or a statement that the recommendations will not be implemented, with justification. "The licensee should retain supporting documentation consistent with the records retention program for their facility."

2

Reporting requirements like those excerpted above have become the norm rather than the exception. This trend has also entered the regulations themselves. The Station Blackout rule, 10 CFR 50.63(a) (2) states that "the capability for coping with a station blackout of specified duration shall be determined by an appro-priate coping analysis. Utilities are expected to have the baseline assumptions, analyses, and related information used in their coping evaluations available for NRC review." It is not apparent that this material is actually sent to the NRG and made publicly available.

Plant-specific actions have also incorporated this trend. At-tachment 1 is a letter from the NRC to the Perry licensee regard-ing the final hydrogen control analysis required by 10 CFR

50. 44 (c} (3) (iv)- (vii}. This letter requests the licensee "to perform the final plant-specific analysis and to retain it as part of the permanent plant records. The Staff only wishes to be advised by letter of the completion date, as well as any signifi-oant findings and conclusions of the analysis."

Hydrogen control was the primary issue litigated by OGRE in the Perry operating license case. It is an issue in which OCRE has a continuing interest. Incredibly, it appears that OGRE will never even be able to see this final analysis.

Other regulatory trends are likewise decreasing public access to information. The Technical Specification Improvement Program is encouraging the removal of materials from the plant tech specs and their relocation to internal plant documents. Attachment 2 is a list of recent Generic Letters enabling licensees to relo-cate materials from the plant tech specs, a public document, into other plant documents which may not be public. In addition, the new standard tech specs will relocate about 36% of current tech spec material to internal plant documents.

The impossibility of obtaining such internal plant documents which are not publicly available is illustrated by the experience of the State of Ohio Citizens Advisory Council on Nuclear Power Safety, of which the undersigned OCRE Director is a member. As part of our deliberations on technical issues regarding the Perry Nuclear Power Plant, the Council requested several internal plant documents related to station blackout and feedwater nozzle cracks. Our request was made through and by the Utility Radio-logical Safety Board of Ohio, the state agency which the Council serves. The Perry licensee refused to supply the requested documents, even though they were requested by a state govern-ment agency.

The trend documented above makes the operating nuclear power plant even more of a "black box." Ironically, the 1989 revisions to the NRC's rules of practice (64 Fed. Reg. 33168, August 11, 3

1989) place an even greater burden on public petitioners to provide as much documentation and factual basis for contentions as early as possible, while access to detailed information is diminishing. If detailed information is never submitted to the NRC, and thus never becomes accessible to the public, partici-pants in proceedings will never be able to supply a basis suffi-cient to support admission of contentions under the new rules of practice.

This situation is contrary to the NRC's "Principles of Good Regulation," particularly the principle of Openness: "Nuclear regulation is the public's business, and it must be transacted publicly and candidly . . . . " Lack of public access to such information undermines public confidence in the NRC's regulatory program, as it fosters the perception of coziness with the regu-lated industry. The impression (and actual effect) of these policies is that the nuclear industry and the NRC have access to information which is kept hidden from the public.

This situation is also contrary to the public's statutory right to participate in the NRC regulatory process. "Congress* vested in the public, as well as the NRC staff, a role in assuring safe operation of nuclear power plants." Union Q.f. Concerned Scien-tists L NE.Q., 735 F.2d 1437, 1447 (D.C. Cir. 1984). However, members of the public cannot fulfill this role which Congress has bestowed upon them without access to the detailed information of the type which current NRC policies are placing beyond their reach.

IV. Remedy: Proposed Text of Rule OCRE proposes as the remedy to this problem the proposed rule set forth below. This proposed rule would clearly establish the public's right to know and to receive copies of internal plant documents, subject to the necessary exceptions to protect sensi-tive information. It does not require that licensees generate information that does not already exist in response to a request.

It does not require that licensees routinely submit material to the NRC, but does require disclosure only upon the request of any person. This proposed rule strikes a proper balance between the public's right to know and the rights of licensees.

This proposed rule includes appeal procedures. A requester dissatisfied Hith a licensee's response to a request for informa-tion would be able to appeal the matter to an Administrative Law Judge on the Atomic Safety and Licensing Board Panel. OCRE believes that using judges from the ASLB Panel is the most appro-priate and efficient option for appeals. This appeal process would be comparable to that.conducted by the federal district courts in hearing appeals of agency denials of Freedom of Infor-mation Act requests, albeit at the agency level and using infor-4

mal procedures. Since hearing appeals is a Judicial function, it is moat appropriately performed by judges. Furthermore, the ASLB Panel has independence and experience in considering similar matters.

OCRE believes this proposed rule would impose a minimal burden on licensees, and this minor burden would be justified by the sub-stantial increase in meaningful public participation. Thia pro-posed rule would also enhance public confidence in the NRC's regulatory program.

While OCRE believes that this approach is the most cost-benefi-cial way to solve the problem documented above, OCRE would be receptive to the consideration of other remedies that would provide similar public access to licensee-held information.

This proposed rule would add a new Subpart E to 10 CFR 9, to read as follows:

Subpart E - Public Right of Access to Licensee-Held Information 9.300 Scope of Subpart This subpart establishes the public's right of access to licen-see-held information, subject to certain exceptions. This sub-part sets forth the procedures to be followed by persons request-ing documents held by NRC licensees or applicants and by the licensees or applicants in responding to requests for documents.

This subpart also establishes procedures for appealing adverse licensee responses to public requests for records.

9.301 Definitions As used in this subpart,

{a) "person" has the meaning given in 10 CFR 2. 4 (o) .

(b) "possessor" means any holder of or applicant for any license to possess, use, and/or transfer source material, byproduct material, special nuclear material, and/or spent fuel, or to construct, manufacture, possess, own, operate, and/or transfer any production or utilization facility or independent spent fuel storage installation, or any holder of or applicant for any con-struction permit, or any holder of or applicant for an early site permit under Subpart A of 10 CFR 52, or any holder of or appli-cant for a standard design certification under Subpart B of 10 CFR 52.

(c) "record" means any document, writing, book, data, paper, brochure, photograph, punch card, magnetic tape or disk, paper tape, sound recording, pamphlet, slide, motion picture, map, drawing, graph, correspondence, contract, report, microfilm, 5

microfiche, optical storage medium, or other documentary materi-al, regardless of form or characteristics, made by, in the pos-session of, or under the control of a possessor.

9.302 Designation of Responsible Official Each possessor shall designate, by name or title, a responsible official to whom requests for records are to be sent. Each possessor shall report to the NRC the name and/or title of the responsible official so designated. Possessors shall promptly notify the NRC, in writing, of any changes to the name or title of the designated responsible official. The NRC will periodical-ly publish a list of possessors and their designated responsible officials.

9.303 Procedure for Requesting Records Any person may request any record relevant to NRC-licensed or regulated activities held by a possessor. The request shall be made in writing and sent to the responsible official designated by the possessor. The requester should describe the records sought with reasonable specificity.

9.304 Response by Possessor (a) A possessor receiving a request for records shall respond to the request within thirty (30) days from the receipt of the request by the designated responsible official.

(b) The possessor's response shall consist of one or more of the following options:

(1) if the records requested do not exist or are not within the possession or control of the possessor, inform the requester of this fact.

(2) if the records requested are publicly available, inform the requester of this fact and where the records may be obtained.

(3) place the records requested in the NRC's Public Document Room in Washington, DC or in a Local Public Document Room near the possessor's facility or convenient to the requester, and inform the requester where the records may be obtained.

(4) provide the records directly to the requester. The posses-sor may require the requester to pay reasonable reproduction fees.

(5) the possessor-may refuse to disclose the requested records only if one or more of the following criteria are met:

(i) the requested records have absolutely no relevance to any 6

activity, facility, or material licensed or regulated by the NRC.

(ii) the requested records contain personnel or medical files or similar personal information, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

However, records pertaining to the requester shall be disclosed directly to the requester or his or her designated legal repre-sentative.

(iii) the requested records contain trade secrets or proprietary information or privileged or confidential commercial or financial information.

(iv) the requested records contain safeguards information, as defined in 10 CFR Part 73.

(v) the requested records contain material which has been prop-erly classified in the interests of national defense or foreign policy.

- (vi) the requested records contain information which would disclose the identity of a confidential source or reveal informa-tion furnished only by a confidential source and the disclosure of which would tend to reveal the source*s identity.

(c) Any reasonably segregable portion of a record shall be provided to the requester or placed in the Public Document Room after deletion of 'the portions which are exempt under paragraph (b)(5).

(d) Unless disclosure of the record is prohibited by law, a possessor may disclose a record containing material exempt under paragraph (b)(5) directly to the requester upon the execution of an appropriate protective agreement.

4lt 9. 305 Appeals (a) A requester may appeal a possessor's response for denial of access to the requested records, for charging excessive reproduc-tion fees, or for lack of response by the possessor within the designated time limits.

(b) Appeals shall be made by filing a notice of appeal with the Chairman of the Atomic Safety and Licensing Board Panel. The notice of appeal shall be filed within sixty (60) days of the possessor's final response and shall include:

(i) a copy of the requester*s original letter of request; (ii) a copy of the possessor's response(s), or a statement that the possessor has not responded to the request; (iii) an explanation of why the pcsseseor's response is inade-quate, erroneous, or otherwise unacceptable, or why the reproduc-7

tion fees charged by the possessor are excessive.

(c) Upon the receipt of a notice of appeal under this section, the Chairman of the Atomic Safety and Licensing Board Panel shall appoint an Administrative Law Judge to consider the appeal. The Administrative Law Judge shall utilize whatever informal proce-dures are deemed necessary to resolve the matter, and may examine in camera the requested records to determine whether such records or any part thereof may be withheld under the exemptions in paragraph 9.304(b)(5). The burden of proof is upon the possessor to sustain its actions.

(d) The decision of the Administrative Law Judge shall be bind-ing on the possessor. Decisions of the Administrative Law Judge shall be final and are not subject to further administrative appeals or judicial review.

• 9.306 Penalties Refusal of a possessor to comply with an order of the Administra-tive Law Judge may be subject to enforcement action by the NRC.

V. Conclusion OCRE requests that the NRC publish this Petition for Rulemaking in the Federal Register for public comment. OCRE would like to receive copies of the public comments received. OCRE would be pleased to discuss this matter with the agency and other inter-ested parties to £ind a mutually agreeable solution to the prob-lem described herein.

Respectfully submitted, Susan L. Hiatt Director, OCRE 8275 Munson Road Mentor, OH 44060-2406 (218) 255-3158 DATED: February 10, 1994 8

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, O.C. 20566-0001 August 4, 1993 Attachment 1 Mr. Robert A. Stratman Vice President Nuclear - Perry Centerior Service Company P. 0. Box 97, S270 Perry, Ohio 44081

Dear Mr. Stratman:

SUBjECT: PLANT-SPECIF!~ HYDROGEN CONTROL ANALYSIS (TAC NO. M60340)

On August 6, 1990, the Hydrogen Control Owners Group (HCOG) submitted topical report HGN-112-NP, "Generic Hydrogen Control Information for BWR/6 Mark III Containments." The NRC staff published an evaluation of this topical report in NUREG-1417, *safety Evaluation Report Related to Hydrogen Control Owners Group Assessment of Mark III Containments.* By letters dated August 29 and August 30, 1991, the Owners Group requested and provided justification for several changes in the conclusions of the staff's safety evaluation. On June 26, 1993, the staff issued a supplemental safety evaluation report (SSER) which addressed the issues raised by the HCOG. A copy of the SSER is enclosed for your convenience.

Receipt of the SSER initiates commitments by each Mark III owner to submit a plant-specific hydrogen control analysis for their facility. The staff does not intend to perform a detailed review of this analysis if it is conducted in accordance with the approved topical report. Each licensee is requested to perform the final plant-specific analysis and to retain it as part of the permanent plant records. The staff wishes only to be *advised by Jetter of the CQmpletion date, as well as any significant findings ana conclusions of your analysis.

• If you have any questions regarding this ~atter, please ~ontact me at {301) 504-1346.

- - obert J. Stransky, Project Manager Project Directorate 111-3 Divis ion of Reactor Projects II I /I'V /V Office of Nuclear Reactor Regulation

Enclosure:

As stated cc w/enclosure:

See next page

Attachment 2 GENERIC LETl'ERS ON REMOVAL OF ITEMS FROM TECH SPECS

• 88-06 Removal of Organization Charts from Technical Specifications Administra-tive Control Requirements (3-22-88)

• 88-12 Removal of Fire Protection Requirements from Technical Specifica-tions (8-2-88)

• 88-16 Removal of Cycle-Specific Parameter Limits from Technical Specifications (10-4-88)

• 89-01 Implementation of Programmatic Controls for Radiological Effluent ~

Technical Specifications in the Administra-tive Controls Sectionof Technical Specifica-tions and Relocation of Procedural Details of RETS to the Offsite Dose Calculational

• Manual or the Process Control Program (1-31-89) .

• 91-01 Removal of the Schedule for Withdrawal of Reactor Material Specimens from Technical Specifications (1-4-91)

• 91-08 Removal of Component Lists from Technical Specifications (5-6-91)

NEW STANDARD TECH SPECS: APPROX.

36% OF CURRENT TECH SPECS WILL BE RELOCATED TO INTERNAL PLANT DOCUMENTS, CHANGED THROUGH 50.59

DOCKETNUMBER RDUi 9-:l-( 5q F'~ 303 o.8 ) 7590-01-P NUCLEAR REGULATORY COMMISSION DOCKETED USNRC 10 CFR Part 9 October 23, 2003 (9: 12AM)

[Docket No. PRM-9-2)

OFFICE OF SECRETARY RULEMAKINGS AND Ohio Citizens for Responsible Energy, Inc. ADJUDICATIONS STAFF Denial of a Petition for Rulemaking AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of a petition for rulemaking.

SUMMARY

The Nuclear Regulatory Commission (NRC) is denying a petition for rulem~king submitted by the Ohio Citizens for Responsible Energy, Inc. (OCRE). The petition has been docketed by the Commission and assigned Docket No. PRM-9-2. The Petitioner requested that NRC amend 10 CFR Part 9, "Public Records," by adding a subpart E entitled "Public Right of Access to Licensee-Held Information. n This subpart would provide for public access to licensee-held documents, subject to limited exceptions, and include appeal procedures. The NRC is denying the petition because the additional recordkeeping and reporting proposed by the Petitioner is not necessary to protect the public health and safety or to ensure effective public participation in NRC adjudicatory hearings on licensing actions, and is contrary to internally and externally-driven initiatives to reduce unnecessary recordkeeping and reporting requirements.

ADDRESSES: Copies of the petition for rulemaking, the public comments received, the Petitioner's response to these comments, the NRC's letter of denial to the Petitioner, and the congressional letters may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), 01 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee.

Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this site, the public can galn entry Into the NRC's Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737 or by email to pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Maria E. Schwartz, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555-0001. Telephone:

(301) 415-1888; or MES@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Background On February 1O, 1994, OCRE, the petitioner, flled a petition for rulemaking under 10 CFR 2.802 with the NRC. The Petitioner subsequently filed an amendment to the petition on

_April 11, 19~4. The Pet!!ioner is a private, not-for-profit orga~ization inco_rporated under the laws of the State of Ohio that specializes in research and advocacy on nuclear safety issues.

The Petitioner also supports the right of meaningful public participation In the regulation of nuclear facilities.

The Petitioner requests that the NRC amend 10 CFR Part 9, "Publlc Records," which addresses the public's right of access to infonnation held by NRC. The Petitioner proposes an additional subpart E to Part 9 entitled "Public Right of Access to Licensee-Held lnfonnation,

• which would provide for public access to licensee-held documents Including draft documents, subject to exceptions necessary to protect certain sensitive information such as personal lnfonnation, proprietary Information, safeguard infonnation, Identity of confidential sources, and classlfied information. The proposed rule would Include appeal procedures If a requester was not satisfied with a licensee's response to a request for information. Under the Petitioner's proposed appeal process, the requester could appeal the_matter to an Administrative Judge (AJ) on the Atomic Safety and Licensing Board Panel. The A.J's decision would be final and not further appealable.

The petition was docketed as PRM-9-2. NRC published a notice that announced the receipt of the petition and requested public comments on the suggested amendments in the Federal Register on June 13, 1994 (59 FR 30308). NRC received 27 comment letters and an additional letter responding to those comments from OCRE. Of the 27 responses, three endorsed the petition. These commenters included a public Interest group and members of the public. Twenty-four commenters opposed the petition. These commenters were primarily utilities or representatives of utilities.

A response to the petition was delayed a number of times to consider the petition in light of the Commission's ongoing publlc lnfonnation initiatives and legislative and executive branch directives on reducing unnecessary reporting and recordkeeping. For example, there was a significant delay associated with developing and implementing ADAMS, the Commission's electronlc document library system. During the review period the staff contacted the petitioner to provide updates on the status of the agency's review. Nevertheless, the Commission finds this delay to be unacceptable. The Commission Is committed to a more rigorous review of

action on pending rulemaking petitions in order to prevent a recurrence of an unnecessary delay of this length and to assure timely response.

II. Discussion The Petitioner's primary concern is that licensee-held documents are not accesslble by

, members of the public aRd may contain information that the public would find useful in participating in NRG proceedings. The Petitioner asserts that rulemaklngs in the 1993-94 time frame as well as NRG bulletins and generic letters issued over the period 1988-94, instruct llcensees to send conclusory statements to NRG while retaining documentation and analyses at licensees' facilities. Such information retained onsite by licensees for NRG inspection purposes is not retained by NRG in docket files, nor is it placed in NRG's Public Document Room (PDR) unless it is included in an NRG inspection report. In these circumstances, the information cannot be obtained under the Freedom of Information Act (FOIA) (Pub.L. 108-23) because it does not constitute *agency recoras* as defined in the Paperwork Reduction Act of 1995 (PAA) (Pub.L. 104-13). The Petitioner asserts that this trend in the NRG's regulatory practice reduces the amount of information to which ttie public has access. The Petitioner believes that when NRG proposes to reduce the number of licensee reports required to be submitted to NRG or retained by licensees, NRG should take into consideration that while NRG may have access to these reports or information based on its status as the regulator of the licensee, the public does not because these reports and information will not be placed in the PDR. As a result, the Petitioner contends the public will not be able to participate fully in the regulatory process since the public will not be able to evaluate potential health and safety problems contained in these documents. The Petitioner is concerned that this result will undermine the public's effective participation in NRG's regulatory process. The Petitioner is also concerned that this will restrict the publlc's effective participation in the NRG's hearing

process as provided for under the Atomic Energy Act of 1954, as amended (AEA). In addition, the Petitioner argues that this result will promote an atmosphere where public distrust of nuclear energy will grow, eroding the public's confidence in NRC's regulatory program and fostering a perception of coziness with the regulated industry.

The Petitioner acknowledged that the primary reason for this petition for rulemaking is not directly to protect or enhance the public health and safety; rather, it has been designed to ensure effective public participation by extending public access to information in the possession of licensees. To accomplish this, the Petitioner proposes to amend 10 CFR Part 9 to require licensees to provide "any record relevant to NRG-licensed or regulated activities" subject to exemptions necessary to protect certain sensitive information such as personal Information, propdetary Information, safeguards information, identity of confidential sources, and classified information.

Legislative and Executive Branch directives, e.g., the PAA (revising and strengthening earlier requirements) and the Clinton Administration's 1993 National Partnership for Reinventing Government (NPR), were initiated at approximately the same time that OGRE submitted its petition to NRC for consideration. These Initiatives required federal agencies, including NRC, to move toward a less expensive and more efficient Federal Government.

Phase 2 of NPR Included a directive requiting agencies to focus on core mission competencies and service requirements and to review their current programs to identify areas that could be eliminated, including, among other things, areas that are particularly relevant to OCRE's petition, i.e., deleting obsolete regulations and improving government management of communications technology which included a review of the need for, and use of, various Information collections. The objectives of the PAA include reducing Government-required

recordkeeping and reporting requirements, a greater use of electronic technology for operational efficiency and infonnation dissemination, and a concerted effort, using information technology, to improve government management of information collectlons. 1 In addition to these external initiatives, there were ongoing Internal agency initiatives such as the establishment of NRC's Regulatory Review Group which, in 1993, provided a report to the Commission focusing on key areas in which changes in the way the NRC conducted business* could significantly reduce stakeholder and NRC costs without adversely affecting the level of safety at operating nuclear power plants. The report recommended moving toward more performance-based requirements and proposed efficiencies In the area of reporting requirements. Based on those recommendations, NRC assessed reporting and recording requirements in order to identify those requirements which could be reduced in scope or eliminated without impacting NRC's ability to fulfill its mission regarding the protection of the public health and safety.

In cases where ~RC has made a determination to reduce or eliminate a requirement, NRC first considered the impact on public health and safety. If there would be no direct impact on publlc health and safety, NRC next considered the reduced administrative burden on licensees and the extent to which the proposed elimination will deprive the public of health and safety information. In all cases, an existing requirement cannot be reduced or eliminated arbitrarily. Before regulations containing reporting requirements which NRC determines to be obsolete, unnecessarily burdensome, too prescriptive or to overlap or duplicate other regulations, can be removed, NRC must follow the administrative process for rulemaklng which 1

This initiative has more recently evolved into the development of E-GOV which uses Improved internet-based technology to make it easy for citizens and business to interact with the government, saving the taxpayer dollars while streamlining citizen-to-government communications. In 1998, the Government Paperwork Elimination Act (GPEA) (Pub.L. 105-2TT) was enacted to, among other things, help citizens gain one-stop access to existing Government Information and services and Increase Government accountability to citizens.

provides an opportunity for comment by members of the public. In this way, NRG seeks to maintain a balance between elimination of recordkeeping and reporting requirements which are burdensome and do not substantially contribute to providing a basis for its licensing and regulatory actions, and making the basis for its decisions transparent to stakeholders.

The PRA requires federal agencies to, among other things, ensure that infonnation technology is acquired, used, and managed to improve performance of agency missions, including the reduction of information collection burdens on the public. This includes evaluating whether proposed collections of infonnation are necessary for the proper perfonnance of the functions of the agency, Including whether the Information has practical utility. Recently, in confonnance with the objectives of this Act, NRG amended its "Reporting Requirements for Nuclear Power Reactors and Independent Spent Fuel Storage Installations at Power Reactor Sites," (65 FR 63769 (October 25, 2000)), to better align the reporting requirements with NRG's needs for information to carry out Its safety mission (e.g., extending the required initial reporting times for some events, consistent with the time at which the reports are needed for NRG action) and to reduce unnecessary reporting burden, consistent with NRG's needs (e.g., eliminating the repoft!ng design and analysis defects and deviations with little or no risk or safety significance (65 FR 63778-9)).

Subject to the need to protect safeguards and national security-related Information, commercial nuclear facility licensing and regulation should be transacted publicly. In that regard, the NRG had made available substantial amounts of information for public review on its website, which since 2000 and the development of its Agency-wide Document Access and Management System (ADAMS) has provided this information in a more searchable fonn at NRG's Public Electronic Reading Room, i.e., http://www.nrc.gov/reading-rm.html. These documents, which include substantial amounts of information relevant to licensing decisions, e.g., the license application, as well as changes thereto, correspondence between the licensee

and NRC, 2 and inspection reports, are available In ADAMS and continue also to b~ available in the PDR. NRC also has a comprehensive set of reporting requirements which have had the benefit of publlc comment arid have been promulgated in accordance with the Administrative Procedure Act after careful consideration as to whether NRC needs to obtain licensees' records and information to carry out NRC's public health, and safety responsibilities. The Petitioner ,has apparently discounted the process by which NRC determined that many of the documents which are the subject of the petition for rulemaklng are unnecessary for NRC to possess in order to make regulatory decisions that protect the public health and safety, or has determined may be kept onsite at licensees' facilities for NRC Inspection purposes but are not required to be submitted to NRC. In addition, much of the Information which is of interest to the Petitioner and being retained onsite by licensees may also be avallable to members (?f the public because it is contained in, or has been relocated to, other documents that have been submitted (as part of applications or in response to requests for additional information) and are placed In NRC's Public Electronic Reading Room and/or the PDR.

Ill. Summary of the Public Comments The notice of receipt of the petition for rulemaking invited interested parties to submit written comments concerning the petition. The NRC received 27 comment letters and an additional letter responding to those comments from OGRE. Of these, three letters from private citizens and the Clean Water Fund of North Carolina, an environmental group, favored granting the petition. Twenty-four letters opposing the petition were sent primarily by utilities or representatives of utilities such as Nuclear Energy Institute (NEI) and Nuclear Utility Backfitting and Reform Group (NUBARG). Many of the letters contained comments that were similar In 2

Although the terrorist attacks of September 11, 2001, led to the NRC's decision to remove material from Its website, the agency, after conducting a deliberate and systematic review of that materlal, has now restored most of the material to the website.

nature. The following section summarizes, by issue, the public comments received and provides responses to those comments.

Comment 1. Licensee-held Information should not be withheld from the public.

Of those responding in favor of granting the petition, one private citizen contended that the petition is justified because it is illegal and unfair that the public does not have access to licensee-held information. Another private citizen agreed with that position but pointed out that the petition, as written, is too general with respect to the scope of records covered by the proposal and suggested that the scope be limited to the records used by the licensee to support a docketed submittal (i.e., those records which could have been included with the submittal).

That commenter also noted that any proposed change to 10 CFR Part 9 must not Interfere with the handling of licensee-prepared records as proprietary information. The Clean Water Fund of North Carolina supported the Petitioner's view that limiting public access to Information increases public cynicism regarding the regulation of nuclear energy.

NRC Response:

Applicants for an NRC license and licensees provide information to NRC under the agency's requirements, See, e.g., 10 CFR 30.6, 30.32 and 10 CFR 50.4, 50.33, 50.34, 50.90, which set out certain NRC license application requirements; 10 CFR 50.72 and 50.73, which require nuclear power reactor licensees immediately to notify NRC when certain conditions arise, followed by written event reports;. and, licensee reports sent in response to NRC requests for addltlonal information as part of a specific licensing or regulatory action. This Information is submitted on the docket for the particular licensee and, except when it contains safeguards, personal Information or other infom,ation that may be protected from public disclosure under

10 CFR 2.790, is placed in the PDR where it is available for public inspection and copylng 3 and, in most instances, is available In electronic form through NRC's Public Electronic Reading Room, discussed above. In this way, the public has access to very large amounts of relevant licensee information. In addition, NRC allows licensees to retain specified records onsite for inspection purposes. Although NRC has the right to access these records or obtain them permanently, NRC has determined that it Is not necessary, under most circumstances, for licensees to submit this information to NRC. To require the submission of information and documents beyond those that NRC determines it needs to have submitted for its regulatory function would be contrary to the objectives of the PRA. Finally, general information held by a licensee but not required to be retained or submitted for NRC's regulatory purposes is the property of the licensee. Absent an NRC determination that such information must be submitted to NRG in order for NRC to carry out its statutory and regulatory obligations, the AEA does not provide NRC with the authority to require that licensees provide such information to a third party.

• Comment 2. The petition would, In effect, modify the FOIA without Congressional action.

Several of the commenters endorsed NEl's comment that the proposed petition for rulemaking would expand the NRC's current requirements for granting public access to licensee documents. They believe that the proposed rulemaking, without Congressional action, would modify the FOIA by making the statute applicable to entities other than government agencies and to records other than those within a government agency's control. In addition, most 3

NRC has restored access to a large volume of licensing and regulatory materials that were removed from its website and PDR for review and screening followlng the September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon.

commenters believe that the petition challenges the Congressional delegation of authority to the NRG by giving access to almost all of a licensee's internal documents, including those which the NRG has determined can be retained onsite, as well as those which NRG believes are unnecessary for it to possess or obtain access to In order to protect the public health and safety.

NRC Response:

NRG believes the requested amendment is overly broad and, if granted, would allow access to almost all of a licensee's internal documents including drafts and other documents without a showing of need. The petition requests access to "any record relevant to NRG licensed or regulated activities held by a possessor." In the context of NRG regulation, a very broad range of licensees' records may arguably be "relevant" to NRG activltles. OGRE's petition relies heavily on NRG's authority under the AEA to access and, If it chooses, obtain pennanent custody of such records. Section 161 o. of the AEA, for example, provides NRG with the authority to require reports and recordkeeping, and to require licensees to maintain these documents for inspection purposes, for specified activities and studies, and activities under licenses issued pursuant to the AEA, "as may be necessary to effectuate the purposes of' the AEA.

When in the possession and control of NRG, documents become "agency records," and, in accordance with FOIA and the agency's regulations, such documents are available for public inspection and copying upon request by any person. The petition, if granted, would arguably amount to an unprecedented and legally questionable extension of the FOIA by granting access to private documents of regulated entities that are not "agency records" (as defined in the PRA) and are not required for NRG regulation and licensing. The FOIA applies to every record which an agency has, in fact, obtained; and not to documents which merely could have been

obtained. The United States Supreme Court considered this issue in Forsham v. Harris, 445 U.S. 169 (1980), and concluded that Congress could not have Intended FOIA to embrace documents that the Federal Government has the right of access to, as this would Include an extraordinarily large amount of private documents.

Comment 3. There are many administrative costs associated with Information requests.

Commenters stated that there are many administrative costs associated with information requests. Most commenters believe that since the subject of a request does not have to be well defined, nor is a stated purpose for the search required, it is likely that many licensees would have to create or recreate their filing systems at a substantial cost to accommodate broad requests. This cost would, in turn, be passed on to consumers. One commenter, the Mayo Clinic, stated that *the petition would result in increased licensee efforts and costs with no benefit nor increase in safety for society. These additional costs would need to be passed on to customers who would gain nothing. In particular, medical licensees would be forced to pass these costs onto patients while at the same time reacting to federal health care initiatives to reduce costs.* One licensee (Commonwealth Edison) estimated that any one request costs anywhere frorn $1,500 to $3,000, and would clearly require dedicated resources to this proposed effort.

NRC Response:

NRC agrees with the general commerits and assertions that the requirements proposed by the Petitioner would result in some, possibly .substantial, administrative costs for licensees to respond to requests for documents. A licensee's process would likely include provisions for:

1) receipt, acknowledgment, and tracking of the request; 2) evaluation of the request to determine if it will require a document search effort, and, if so, the nature and scope of the

search; 3) conducting a search including interactions with document custodians; 4) reviewing collected materials and screening for "relevance" or other bases for non-dlsclosure such as trade secrets or privileged Information; and 5) reproduction and transmittal of responsive documents. Since the documents which can be requested are "any record," there are likely to be slgnifi~nt administrative burdens and costs for locating and compiling the requested infonnatlon for reproduction. The cost could include dedicating personnel to this task. In addition, unlike the FOIA, the petitioner's proposal does not provide for the recovery of the costs associated with searching and reviewing documents.

Granting the petition could adversely Impact the effectiveness of NRC by Increasing the burden on the Commission's adjudicatory activities without a corresponding enhancement of safety. The appeal process provided by this petition would require AJs to be called upon to determine if a record can be the subject of a request, if reproduction fees are reasonable, and if the licensees' responses are timely. The proposal would strain the existing resources of the Atomic Safety and Licensing Board Panel. It might also necessitate seeking additional resources for NRC which might be difficult to obtain in the absence of a safety justification. The petition does not provide for effective Commission oversight of the AJs that is afforded for other adjudicatory matters; Indeed, the Petitioner's proposal that the AJs' decisions would be final and would not be appealable or subject to review by the Commission, undermines the Commission's ability to effectively monitor and administer its adjudicatory processes. The Commission's regulations require licensees to provide full disclosure of information that NRC has determined is necessary for It to fulfill its mission to protect the public health and safety.

OCRE's petition does not explain how its proposed document access and appeal process would enhance NRC's ability to accomplish that mission.

Comment 4. OCRE has not provided a specific purpose for the Information other than wanting access to It.

Several commenters stated that OGRE has not provided any specific reason for needing to review the onsite Information it Is requesting other than its belief that the public should have access to this information. The Petitioner has pointed out that the requested access is not directly for protection of the public health and safety. The commenters' criticisms further questioned whether OGRE is not casting public citizen groups into the role of providing oversight of NRG's regulatory program.

NRC Response:

NRG recognizes the Important contribution the public makes to NRG's regulatory process. To facilitate public involvement, NRG has developed more effective and efficient methods of providing information to the public in order that the public can be more fully informed on the licensing and regulatory process and Issues associated with these activities.

With the improvement of communication technology since the submittal of OGRE's petition, NRG has developed ADAMS, as discussed above, that provides access to documents relevant to its licensing decisions, as well as the website with additional links containing information regarding the regulation and management of nuclear facilities and materials to facilitate public participation in the regulatory process. A newly created "Homepage" and improved "search engines" were added in 2000 and have been updated recently, making "n~vigation" of this information easier. NRC is satisfied that the access to licensee-held documents envisioned by OGRE's petition is not necessary to participate in the hearing process, given the voluminous amounts of Information available to the public regarding NRG's licensing review and regulatory decisions. For example, Subpart L of 10 GFR Part 2, "Informal Procedures for Adjudications in Materials and Operator Licensing Proceedings," contains provisions that allow any person

whose interest may be affected by a proceeding for the grant, renewal, or licensee-initiated amendment of a license subject to Subpart L, to flle a request for a hearing. Subpart L also requires the Secretary of the NRG to maintain a docket for each adjudication under this subpart, commencing with the filing of a request for a hearing, which includes the request for a hearing and other related documents, as well as a hearing file consisting of the application for a llcense or amendment, any NRG environmental impact statement or assessment relating to the application, and any NRG report and any correspondence between the applicant and the NRG that is relevant to the application. The NRG staff has a continuing duty to keep the hearing file up to date with respect to these materials and to make them publicly available for inspection and copying, as well as providing them to the appropriate parties to the adjudication. To that end, the database for the web-based version of ADAMS is updated once dally, usually after midnight East coast time. In the more formal NRG adjudications, additional discovery tools are available and these can provide access to much of the information and many of the documents in the licensee's sole possession that the Petitioner seeks through its petition for rulemaking. In view of the extensive provisions for access to relevant information and documents in NRG's hearing procedures In 10 GFR Part 2,4 NRG strongly disagrees with the Petitioner's assertion that without the proposed rule, the public's effective participation in NRG's hearing process will be restricted.

Comment 5. The petition could have a negative impact on the public health and safety.

Several commenters pointed out that the petition for rulemaklng could actually have a negative effect on public health and safety by producing a chilling effect on the development of 4

The NRG has proposed changes to the adjudicatory process 66 FR j 961 0 (April 16, 2001 ). The proposed changes would not affect the access to documents and information currently provided to the public.

utilities' self-assessments (which have been promoted by NRG) because the utllltles fear that such documents could be used for purposes other than that for which they were Intended.

NRC Response:

NRG agrees it is possible that granting the petition could discourage licensee self-assessment. NRG agrees that providing access to draft and other prellmlnary documents may have a chilling effect and discourage employees of licensees from documenting Information that may be perceived as adverse to their employers, resulting in less candid and frank self-assessments and "lessons learned" analysis. It should be noted that NRG encourages self-assessments and licensee-initiated corrective actions and NRG would not want to impose unnecessary requirement that discourage these actMtles.

Comment 6. Some Information now being retained by licensees Is still available to members of the public through reports to the NRC which are placed In the NRC's Public Document Room.

One commenter, Westinghouse Electric Corporation, pointed out that in each case provided by OGRE, *there Is voluminous information In the possession of the NRG and hence publicly available ...

• Westinghouse took the examples provided by OGRE where documents are now being retained onsite, and pointed out where the information that is being retained onsite Is still being provided in other records that are sent to NRG and, thereafter, placed In the PDR.

Another commenter, BG&E, responded to OCRE's appraisal of the current situation, by pointing out that approximately 90% of the information that it will take out of its technical specifications will be transferred to publicly available documents, such as the Updated Final Safety Analysis Report and the Quality Assurance Plan, and the remaining 10% will be transferred to more appropriate, publicly available documents which are controlled by existing

regulations.

NRC Response:

NRG agrees with the commenters that information retained on site often Is provided in other records that are sent to NRG. Although some of this material may have been removed from its website and PDR after the terrorist attack of September 11, 2001, NRG has restored access to a large volume of licensing and regulatory materials that were removed.

Comment 7. OCRE Is mlscharacterlzlng the 1989 Rules of Practice and overstating the effects of not having access to the records sought.

OGRE stated that "without sufficient factual information to support admission of contentions, petitioners wlll never become interveners and will never have the right to discovery.* However, while the Rules of Practice will preclude a contention from being admitted where an intervener has no facts to support its position and NRG hearing practice does not permit discovery to frame contentions, allowing access to "any record relevant to NRG-licensed or regulated activities held by a possessor,* would allow, as several commenters pointed out, "litigation-type discovery against a licensee without filing a lawsuit and thus, without the legal safeguards designed to prevent 'fishing expeditions.*a NRC Response:

The NRG disagrees with the Petitioner's position that if this petition Is not granted, the public will not be able to fully participate in the NRG hearing process which Is provided for under the AEA. The AEA, as implemented by the Commission's regulations, provides the opportunity for a hearing to any person whose interests may be affected by the granting, renewal, or licensee-initiated amendment of an NRG license. The NRG staff makes available for public Inspection and copying, documents relevant to its licensing decisions electronically at the NRG's Public Electronic Reading Room, discussed above, and/or In the PDR. These

documents Include the application, and any amendment thereto, any NRC environmental impact statement or assessment relating to the application, and any NRC report and any correspondence between the applicant and the NRC that is relevant to the appllcatlon. These documents provide the basis for the NRC's decision to grant, renew, or amend, a license, and are sufficient to permit a member of the public to make an informed decision as to whether the person desires to participate in the hearing process and to formulate appropriate contentions.

See Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing

,Process (54 FR 33168 (August 11, 1989)).

IV. Reasons for Denlal NRC recognizes the contribution the public makes to the regulatory process and the importance of public confidence in that process. However, based on the review of the amendment requested by OCRE and the comments received on this petition, NRC concludes that there are several legal and policy considerations associated with the petition for rulemaklng which warrant denial of the petition. The specific reasons for denial are:

1. OCRE's request for access to licensee-held records is overly broad and would allow access to documents that the NRC requires licensees to maintain onsite for inspection purposes but generally does not require licensees to submit, as well as almost all of a licensee's internal documents including drafts and other documents which the NRC does not require licensees to maintain and on which NRC does not rely for NRC regulatory or licensing actions, even If they are, in some respect, relevant to NRC actMties. Neither the AEA or the FOIA, which applies to records which an agency has, in fact, obtained, and not to records which merely could have been obtained, provide the NRC with the authority to require licensees to supply such documents to the public.

2. OCRE has not made a showing that supplementing the safety Information which underlies and supports Commission action and is available to the public, would result In enhanced safety. In fact, granting the petition may have an adverse impact on safety.

Resources that licensees would use to defend and explain matters would not be available to address substantive safety Issues. Granting the petition may also have a chilling effect and discourage employees of licensees from documenting information that may be perceived as adverse to their employers resulting in less candid and frank self-assessments and '1essons learned" analysis. The access required by the petition could discourage licensee s_elf-assessments and self-identification of the need for corrective action.

3. Without a corresponding enhancement of safety, the petition would create a significant but unnecessary administrative and economic burden on licensees without justification.

Because the records which could be requested are "any record," such requests could significantly impact licensees which would be required to bear the cost of creating a system to assemble these documents as well as dedicating the administrative personnel necessary to locate and compile the requested Information for reproduction. Unlike FOIA, which allows for the recovery of the costs associated with searching and reviewing documents, the only cost which the petition allows is the cost of document production.

4. The petition is contrary to efficient regulatory oversig.ht of NRC facilities, as well as the legislative move to reduce unnecessary recordkeeping and reporting requirements.

NRC has been engaged in activities to eliminate unnecessary requirements and to move toward risk-informed requirements which focus on safety matters. These internal agency initiatives have gone hand-in-hand with the objectives and requirements of the PRA. The documents which are the subject of the petition for rutemaking Include I

documents that NRG has detennined are unnecessary for NRG to fulfill Its mission regarding the protection of the public health and safety and the common defense and security.

5. Granting the petition would adversely impact the effectiveness of the NRG by Increasing the burden on the Commission's adjudicatory activities without a corresponding enhancement of safety. The appeal process provided by this petition would require AJs to be called upon to determine whether a record can be the subject of a request; whether reproduction fees are reasonable; and, whether a licensee's response is timely. This would increase the work load of NRG AJs which would affect I

the amount of time available for other cases. The petition does not provide for the Commission to review the decisions of its subordinate judges which undermines the Commission's ability to effectively monitor and administer its adjudicatory processes.

6. OGRE has not made a showing that without this amendment to 10 CFR Part 9 the public will not be able to fully participate In the NRG hearing process provided for under the AEA. The AEA, as implemented by the Commission's regulations, provides the opportunity for a hearing to any person whose interests may be affected by the granting, suspending, revoking or amending of an NRG license or application to transfer control.

The documents which provide the basis for an application to grant, renew, or amend, a license, are available in electronic form for viewing or downloading at the NRC's Public Electronic Reading Room, http://www.nrc.gov/reading-rm.html, or at the NRC's PDR for public inspection and copying. These documents are sufficient for a member of the public to make an infonned decision as to whether the person desires to participate In the hearing process and to formulate _appropriate contentions. The Commission is satisfied that, given the information that the NRG ensures is available to the public, the access to licensee-held documents that the petition requests Is not necessary for

21 meaningful participation in the hearing process.

V. Conclusion In sum, granting the petition could create a significant administrative and economic burden on licensees and increased administrative burden on the NRC without a corresponding enhancement of safety. The potential but speculative benefits that might occur from public access to licensee-held documents are outweighed by the burden granting the petition would impose. Moreover, the Commission does not have the authority to require a licensee to provide documents to members of the public that NRC has determined are not necessary to be kept as agency records to provide the basis for NRC's regulatory and licensing actions. The petition for rulemaking filed by OGRE, PRM-9-2, is denied.

Dated at Rockville, Maryland, this 2 "I.bi! of Oc+/-obe.n,.., 2003.

For the Nuclear Regulatory Commission,

~ L . V,~ -1~

Annette L. Vietti-Cook, Secretary of the Commission.

UNITED STATES NUCLEAR REGULATORY COMMISSION WASH INGTON, D.C. 20555-0001 October 22 , 2003 DOCKETED ooraraea USNRC Ms. Susan Hiatt Director, OGRE PETl110N RULE ~ 9-;L October 23, 2003 (9:12AM) 8275 Munson Road (59 FR.. 3030g) OFFICE OF SECRETARY Mentor, OH 44060-2406 RULEMAKINGS AND

Dear Ms. Hiatt:

ADJUDICATIONS STAFF This letter responds to the petition for rulemaking {PRM-9-2) that you submitted to the Nuclear Regulatory Commission {NRC) on behalf of the Ohio Citizens for Responsible Energy, Inc.

{OGRE). The petition requested that the Commission amend 10 CFR Part 9, "Public Records,"

by adding a subpart addressing the public's right of access to information held by facility-licensees.

On June 13, 1994, NRC published a notice of receipt of the subject petition for rulemaking in the Federal Register {59 FR 30308) and requested comments from the public. We received 27 comment letters which we sent to you as well as an additional letter sent by OGRE in response to those comments. Although most respondents commented on the importance of public participation in the regulatory process and agree that public participation should be encouraged, these respondents disagree with OCRE's proposal as an effective means of accomplishing that objective.

NRC has considered OCRE's petition and the public comments received as well as OCRE's response to the public comments, and is denying the petition because the additional recordkeeping and reporting OGRE has proposed is not necessary to protect the public health and safety or to ensure effective public participation in NRC adjudicatory hearings on licensing actions, and is contrary to internally and externally-driven initiatives to reduce unnecessary recordkeeping and reporting requirements .

In particular, the Paperwork Reduction Act of 1995 requires federal agencies to assess their information collection requirements in order to identify those requirements where the burden can be reduced in scope or eliminated without affecting an agency's ability to fulfill its statutory mission. In making its determination on whether to eliminate any reporting requirements, NRC attempts to ensure that any deletions or modifications of regulatory requirements do not compromise its mission to protect the public health and safety. NRC also facto rs into its decision making process the views of the public, not only on the implications for public health and safety, but also on the specific value of the reporting requirements for the purpose of public information and participation in the regulatory process.

2 NRC agrees with you that public participation in the regulatory process enhances effective regulation and the NRC intends to continue to make available to the public, those licensing and regulatory documents that have a direct bearing on NRC's regulatory and licensing activities.

However, for the reasons noted in the attached Federal Register notice, the Commission denies your petition.

Sincerely,

~L.(/~-~

Annette L. Vietti-Cook Secretary of the Commission

Enclosure:

Federal Register Notice Denying the Petition