ML16340A833
| ML16340A833 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 03/06/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CLI-80-06, CLI-80-6, NUDOCS 8003140175 | |
| Download: ML16340A833 (56) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
John F. Ahearne, Chairman.
Victor Gilinsky Richard T.
Kennedy Joseph M. Kendrie Peter A. Bradford In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2) gO OG+
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Doc et Nos.
50-275 O.L.
50-323 0. L.
ORDER CLI-804
'n October 24 and 26, 1979, Joint Intervenors filed motions with the Commission requesting that Commissioners Kennedy and Hendrie disqualify themselves fr om the Diablo Canyon operating license proceeding because of off-the-record meetings these officials held on October 19, 1979, with officials of the applicant, Pacific Gas and Electric Company.
If they do not elect to disqualify themselves, the Joint Intervenors requested that the Commission institute a proceeding, complete with the rights of discovery and 1
cross-examination, to determine whether Commissioners Kennedy and Hendrie should be disqualified.
Consistent with the Commission's past practice, and the generally accepted practice of the federal courts and administrativ~gencies, the Commission has
~ L determined that disqualification decisions shou*1d reside exclusively.with the challenged Commissioner and are not reviewable by the Commission.
Commissioners Kennedy and Hendrie are now con idering the Joint Intervenors'equest.
If they 8003i 4O I+K >
are not inclined to disqualify themselves, before making a final decision they will provide the parties to this proceeding with an explanation of their pro-posed course of action and will afford the parties an opportunity to present any information to them which may bear on their disqualification decision.
Commissioner Bradford dissents from this order.
He would have pre-ferred at least to allow depositions after which the two Commissioners would make the first decision
- and, in the event of an appeal, the full Commission would review the fairness of the result.*
It is so ORDERED.
For the Commission SN EL J.
Secretary of t e Commission Dated at Washington, D.C.
this day off ~X 1980.
Section 201 of the Energy Reorganization
- Act, 42 U.S.C.
- 5841, provides that action of the Commission shall be determined by a "majority vote of the members present."
Commissioners Gilinsky and Kennedy were not present at the meeting at which this Order was approved.
Had they been present they would have voted with the majority.
Accordingly, the formal vote of the Commission is 2-1.
gO.> RECy (4
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0 OFFICE OF THE SECRETARY ~
UNITED STATES LEAR REGULATORY COMMISS WASH INGTON, D.C. 20555 RE@JEST FOR REPORTING SERVICE Work Orde r No.
IV-78 Proceeding:
PACIFIC GAS 8
ELECTRIC COMPANY Diablo Can on')*
.50-275, 50-323 Docket No.:
(Security Plan)*
Location of:
Prehearing Hear.ing Room 302 Old Count Courthouse De artment No.
3 Palm and Osos Streets San Luis Obis o, California
Contact:
Ms 1 re
- Burns, Meeting Date of" Time of:
Prehearing 4-2-80**
'Prehearing g'30 am***
.Duration:
Prehearing One da Hearing Hearing Hear ing Meeting Meeting Meeting Hearing Meeting Board:
Chairman
- Members
- Johnson, Moore Sa1 zman In Camera) nce Type of. Proceeding:
CLOSED prehearin confere
~ 'opies of 'the transcriptmay=(may"not) be sold.
g ~
. - Date of oral request:
3-4-80 Special Instructions:,
C
- Prhear ing is CLOSED Im IN CAMERA; Date of confirmation:
3-4-80 Service Required:
prehearing Original (to be delivered as early as possible on Monday', 4-7)
By;
'C.
R. Stephens Docketing and Service Branch bcc: 'r.
Salzman ELD ASLAP
'SLBP Ms.:Hy 1ton Ms. Slater Fw Mr. Fouchar,d copies may be sold only to the lawyer aCt+ndina at the discretion of the chairman.
~Begin a ination of transcri t with
'page l.
~*Reporter shou 1 d b e ava i 1 ab 1 e in..
ear>ng room our e-or pre aarin begins.
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>>'>><<<<4 UNITED STATES LEAR,REGULATORY COMMI SSI WASHINGTON, D.C. 20555 RE(PEST FOR REPORTING SERVICE Work Order No.
IV-79 OFFICE OF THE SECRETARY Proceeding:
PACIFIC GAS 8
ELECTRIC COMPANY Diablo Can on 50-275, 50-323 Docket No.:
Location of:
Prehearing
'I Oral Argument Room 302, Old
- Palm and Osos San Luis Obis ontact:
M>
Meeting Count Courthouse De artment No.
3 Streets o, California red Burns, 805 549-5420 Duration:
Prehearing ra Argument One day*
Meeting Hearing 4-3-80 Date of:.
Prehearing Time of:
Prehearing Ser'eeting Hearing 9:30 am**
Meeting vsce Required.
Prehearing Oral Argument Original (to be delivered as early as ossible on Honda
, 4-7)
Board:
Chairman Meeting Sal zman
- Members Buck Joh s
Type of Proceeding:
Copies of the transcript may (m8$==xIRk) be sold.
Date of oral request:
3-0-80 Date: of conf irmation 3-4-80 By:
C.
R. Stephens" Docketing and Service Branch bcc:
MIr.
Sa 1 zman ELD ASLAP ASL BP Ms. Hylton Ms. Sl ater Rec.
Fac.
Br.
r.
ouc ar Special Instructions:
- Begin pagination of transcript with page 1.
- Reporter s houl d be ava i 1 ab1 e in 1
earing room our eTore ora anguIoent.begins,
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD DQGKETr:5 USiNRC
~t pg Richard S.
- Salzman, Chairman Dr.
W. Reed Johnson Thomas S.
Moore
)
In the Matter of
)
)
PACXFIC GAS AND ELECTRIC COMPANY
)
)
(Diablo Canyon Nuclear Power Plant,
)
Units 1 and 2)
)
)
8 MAR 4 3 1980'ff;ce of the Secretary DocIrctloz 4 ServIco Bra cIr q
hr Docket Nos.. 50-275 OL 50-323 OL MODIFICATION TO FIRST. PREHEARING'ONFERENCE ORD'ER March 11',
1980 In addition to instructions set, forth in our First Prehearing Conference Order of February 25, 1980, the parties are instructed to do the following:
(1)
The staff shall deliver by hand to the Secretary of this Board'y'a'rch18,
- 1980, a sealed copy (including all amendments, appendices,
- exhibits, etc.) of the current security plan for the I
Pacific Gas and Electric Company's Diablo Canyon Nuclear Power Plant.
(2)
Lead counsel for the staff shall have in his possession at the April 2, 1980 prehearing conference one copy of the security plan for the Diablo Canyon Nuclear Power Plant con-forming to the one previously supplied to this Board.
Staff counsel shall also have in his possession at the prehearing conference three copies of the "sanitized" version of the security plan (see item IIC(3) of the February 25, 1980 First Prehearing Conference Order) for use as we may direct at that conference.
It is so ORDERED.
FOR -THE APPEAL BOARD C.
n Bishop Secre ary to the Appeal'oard
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY
/
(Diablo Canyon Nuclear Power
- Plant, Units 1
8 2)
)
)
)
Docket Nos.
50-275 OL 50-323 OL ORDER Pursuant to 10 CFR 2.772, the time within which the Commission may act to review ALAB-580 is extended until April 15, 1980.
It is so ORDERED.
For the Commi ion SAMUEL J.j K
Secretary of he Commission Dated at Washington, D.C.
this~
day of PiA4fEE.(,
1980.
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COMMISS IONER:
Joseph M. Hendrie I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKET="0 OSNRC MAR < S/980<
Office of the Secreta' Deci:ctiny 5 Service Srench In the Hatter of PACIFIC GAS 5 ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2)
G)
Docket Nos.
50-275 OL 50-323 OL MEMORANDUM TO COUNSEL FOR THE PARTIES On October 24, 1979, Joint Intervenors filed a motion with the Commission requesting that I be disqualified from the Diablo Canyon operating license proceeding.
Joint Intervenors argued that an off-the-record meeting I held with the Chairman of the Board, the President, and an employee of the Pacific Gas and Electric Company (PG&E) on October 19,
- 1979, is evidence of a possible bias in favor of PGSE.
On March 6,
- 1980, the Commission issued an order stating thai consistent with its past practice, disqualification decisions reside exclusively with the challenged Commissioner and are not reviewable by I
the Commission.
That Order stated that if I was inclined to continue to partici-pate in the Diablo, Canyon proceeding, I would afford the parties an opportunity to present me with any relevant information they possessed that bore on the matt'er, before I reached a final decision whether to participate further in the proceeding.
I have reviewed the allegations contained in the Joint
'Intervenors'otion as well as responses thereto filed by the NRC staff and
- PGSE, and have reached the tentative conclusion that Joint Intervenors have not estab-
k
lished a case for disqualification, thereby permitting me to continue to participate in this proceeding.
The basis for this preliminary judgment follows.
I had no personal contact with PG8E officials prior to the October 19 meeting.
Hy appointment book reflects that Sally Bartiss, a secretary working in PG5E's llashington, D.C. office, called my office and requested that I meet with PGINE officials.
My executive secretary, Margaret R. Shuttleworth, recalls taking the telephone call, 'transmitting the request to me, and communicating my acceptance to PGSE.
The date of these conversations are not recorded in my appointment
- book, although it is clear they took place several days prior to the October 19 meeting.
At an agenda planning meeting that I conducted on October 17, 1979, I advised the Commission's General
- Counsel, Leonard Bickwit, Jr., of my forth-coming meeting with the PGI5E officials.
I requested that he contact PG&E to obtain a detailed description of what PGIIE wished to discuss and also to remind-PGGE of the Commission's restrictions against ex ~arte communications.
I did not discuss the matter further uritil I met with Hr. Bickwit and my legal assistant, Donald Hassell, on the morning of October 19, shortly before the meeting with PGKE officials.
Me discussed the Commission's ex ecarte I
regulations and concluded that the meeting should focus on generic issues and not on specific issues being adjudicated in the Diablo Canyon operating license proceeding.
Frederick i~fielke, Chairman of the Board, Bart Shackelford, President, and Gene
- Blance, an employee, represented PGI5E at the meeting.
messrs.
Bickwit and Hassell also'ttended.
After the meeting with PG4IE officials,'
called Hr. Harold Denton, the Director of the Commission s Office of Nuclear Reactor Regulation, to inform
~ 1
him of the views PG8E presented at the meeting.
Mr. Denton was not available so I talked to Mr.
Edson Case,.the Deputy Director of that office.
, At the time of the meeting neither the General Counsel nor I believed that the discussion constituted an ex ~arte communication.
However, after the meeting the General Counsel researched the matter and on balance, has come to a different conclusion which I share.
Mr. Bickwit and I concluded that the discussion with the PGSE officials might be interpreted to be relevant to the merits of the Diablo Canyon proceeding and I decided as a precautionary measure to treat the meeting as if it were an ex ~arte conversation.
Donaid Hassell had already started to prepare a memorandum summarizing the meeting.
Mr. Bickwit-and I reviewed his memorandum and concluded that it accurately reflected the content of the meeting.
On October 24, I had the Hassell memor-andum and a note I prepared summarizing my phone conversation with Edson Case placed in the Commission's Public Document. Room and served upon the parties to the Diablo Canyon proceeding.
I appended to these memoranda a short explanation of why these documents were being made publicly available.
These documents, which are appended to this memorandum, set forth the substance of my conversation with the PGIIiE officials and my subsequent phone conversation with Edson
- Case, and I will not reiterate their contents here.
Before reaching the tentative conclusion that nothing that occurred on October 19 requires me to disqualify myself, I reviewed the pertinent statutes and judicial decisions pertaining to the disqualification of regulatory commis-sioners and federal judges.
Under Section 557(c) of the Administrative Procedure Act and 10 CFR 2. 780(c) of the Commission's implementing regulations if an NRC Commissioner receives an ex ~arte communication, the Commissioner is required to place in the public record a memorandum stating the substance of
the conversation.
As described
- above, I have done this.
There is nothing in the text of the APA or NRC regulations which would suggest that disqualification is also required.
I have also reviewed applicable judicial decisions and have not found a single decision which holds that a Commissioner must disqualify him-self from a proceeding sole1y because he received an ex ~arte communication.
Nonetheless, a Commissioner should disqualify himself from a proceeding if he is prejudiced or biased.
The law requires that formal adjudicatory hear-ings held before an administrative tribunal must entail a fair trial in a fair tribunal.
Mithrow v. Larkin 421 U.S.
35, 46-47 (1975);
Amos Treat 5 Co. v.
- SEC, 306 F.2d 260 (D.C. Cir. 1962).
The tribunal must be free from bias and prejudice and imbued with the desire to accord the parties equal consideration.
Inland Steel v.
~NLRB 109 F.2d 9,
20 (7th Cir. 1940).
In examining the impact of ex ~arte communications, the question is thus whether the contacts influenced the judgment of the adjudicatory official to such an extent that it impaired his independence of judgment and deprived someone of a fair and impartia'I hearing.
Jarrott v. Scrivener 225 F.
Supp.
827 (D.D.C. 1964).
In sum,'
Commissioner should be disqualified if a dis-interested observer may'conclude that the Commissioner "has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it." Cinderella Career and Finishin Schools Inc. v.
- FTC, 425 F.2d 583 (D.C. Cir. 1970); Gilli an, Will & Co. v.
~SEC 267 F.2d 461, 469 (2nd Cir.
1959), cert denied 361 U.S.
596 (1959).
The burden of establishing bias is placed upon the petitioner.
The courts have held that "a substantial showing of personal bias is required to disqualify a hearing officer or to obtain a ruling that the hearing is unfair. "
Roberts v.
- Norton, 549 F.2d
- 155, 164 (10th Cir. 1977);
Converse
- v. Udall 262 F.
Supp.
553
0
(D. Ore.
1966), aff'd 399 F.2d 616 (9th Cir. 1968), cert.denied, 393 U.S.
1025 (1969).
In determining whether an affidavit in support of a motion to disqualify is sufficient, the courts have articulated several guidelines.
The affidavit:
must be strictly construed; it must be definite as to time,
- place, persons and circumstances.
Assertions merely of a conclusory nature are not enough, nor are opinions or rumors.
And the affi-davit 'must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment. 'l United States v.
Ha1deman 559 F.2d 31, 134 (D.C. Cir.
en ~banc 1976).
I have applied this law to the present facts.
The submissions of Joint Intervenors simply do not support an inference that I have either become bi'ased by the events of October 19, 1979 or that the meeting evidenced pre-existing bias on my part.
I do not want to let the matter rest there, however.
The infirmity of the petitioners'howing notwithstanding, I have reviewed the memoranda concerning the meeting and addressed the question of whether anything that transpired at the meeting may have biased or prejudiced my ability to con-sider the Diablo Canyon adjudicatory proceedings fairly and impartially.
As the October 23, 1979 "Note to Files" prepared by Donald Hassell indicates, the conversation with PGI)E officials did not pertain to whether the Diablo'aciIity Canyon application for an operating license should be issued.
At no time during the course of this meeting did I express any views on this subject.
At the meeting there also was no discussion of specific technical issues then pending in that proceeding, such as the adequacy of the physical security plan or whether the plant is adequately designed to withstand a major earthquake.
The conversa-tion focused on generic issues raised by the Three Nile Island accident and the status of the Commission's staffing of its review of the Diablo Canyon application.
- Ouotin9, Berceev v. United States, 256 U.S.
22, 33-34 (1921).
Under these circumstances, I do not believe that I have lost my independence of judgment or prejudged any of the issues in the proceeding.
I am not biased in favor or against the applicant or any other party to this proceeding.
I there-fore propose to remain in this proceeding.
If any party to this proceeding or NRC official has additional relevant information which I should consider before making a final decision on whether the events of October 19 require disqualifi-
- cation, I request that these views be transmitted to me by t1arch 31, 1980.
After reviewing these submissions, I will make my final decision.
SEPH H.
HENORIE Commissioner Dated at llashington, D.C.
this 13th day of t1arch 1980.
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CHAIRMAN MEMORANDUM FOR:
.'ROM:
SUBJECT:
UNITED STATES N88Fi EAR REGULATORY COMMISSIO WASHINGTON, D. C. 20555 Octob'er 24, 1979 Public Document Room and P rties to Diablo Canyon Licensing P'o ceding Joseph M. Hendri I 'i~m MAR ) ~to~~
Oflice of the Secreta DocketiIIg st, g<
B ~
8 Branrn f~
MEETING WITH PACIFIC GAS AND ELECTRIC COMPANY OFFICIALS CONCERNING REPORTING STATUS ON GENERIC MATTERS RELATED TO LICENSING DIABLO CANYON The attached "Notes to Files" and this memorandum have been prepared pursuant to section 557(d)(l)(C) of the Administrative Procedur Act and 10 CFR 5 2.780(c).
The documents relate to a meeting held on October 19, 1979 at ~rhich, in addition to myself, the following were present:
Frederick Mielke, Chairman of the Board, Pacific Gas and Electric'Company (PG&E); Bart Shackel ford, President, PG&E; Gene Blanc, PG&E employee; Donald Hassell, Legal Assistant to the Chairman of the NRC; Leonard Bickwit, Jr., General Counsel of the NRC.
The meeting was
.requested by the company to discuss the status of the Diablo Canyon licensing proceeding and generic matters related to that proceeding.
At the time of the meeting neither the General Counsel nor I believed that the discussion was "relevant to the merits of the proceeding,"
as stated in 5 U.S.C.
5 557(d),
because we did not discuss the facts in the case, and the general thrust of the discussion involved generic issu s.
However, after the meeting the General Counsel researched the matter and, on balance, has come to a dif-ferent conclusion which I share.
The term "relevant to the merits of the pro-ceeding," in the words of both the Senate and House Committees charged with drafting this section, was "intended to be construed broadly and to include more than the.phrase 'ct.-in issue'urrently used" in 5 U.S.C.
5 554(d).
Further-more, both committees-concluded that "fijn doubtful cases the agency official should treat the communication as ex parte so as to protect the integrity of the decisionmaki ng process."-
Consequently, to resolve any doubts that exist, the General-Counsel and I agree that the communications in question should be treated as ex ~arte communications.
In accordance with our procedures, we are notifying the parties to the pro-ceeding of this conclusion and are sending them a copy of these documents, which will also be filed in our Public Document Room.
Attachments:
1.
Note, 10/23/79, Hassell
'to Files 2.
Note, 10/24/79, Hendr'ie to Files- ~
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o sp <<*~4 CHAIRMAN UNlTED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 October 24, 1979 NOTE TO:
Files FROM:
Joseph li. Hendrie
SUBJECT:
ACTIONS SUBSE ENT~ MEETING WITH OFFICIALS OF PACIFIC GAS 8(
ELECTRIC ON OCTOBER 19, '1979 This note is intended to complete the record on the meeting with PGSE
. officials on October 19,
- 1979, and my subsequent actions.
A summary of that meeting has been prepared at my request by Mr. Donald F. Hassell,
-my Legal Assistant..
Late in the afternoon of October 19th, I called the Director/NRR.
Mr.
Denton was out and I talked to Mr. Edson
- Case, Deputy Director/NRR.
I inquired as to the status of the Diablo Canyon case.
I told Mr. Case of the PGEE concern that Diablo Canyon might be singled out for some sort of unique procedural treatment with regard to Three Mile Island-related
- issues, and that the NRC staff members most familiar with Diablo Canyon might not be available for further work on the case.
Mr. Case said that Diablo Canyon was being treated from a procedural standpoint in the same way as other well-advanced operating license applications in which there were ongoing proceedings before a Licensing
- Board, and that staff members familiar with the case would continue to work on it to the extent practical in view of the many demands on staff time.
He said that Diablo,Canyon had recently been discussed by the ACRS and that further discussions were planned with ACRS on the project.
I told Mr. Case I thought the staff should continue its work on Diablo Canyon just-as it -was doing.
I suggested the staff should try to be well-prepared for the coming ACRS meeting, since my own experience on the ACRS indicated that a high quality staff presentation to the ACRS would best serve the objective of reaching an early decision on the application.
On Monday, October 22nd, the General Counsel informed me of his concerns about the nature of the meeting with PGKE.
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OFFICE OF THE CHAIRMAN UNITED STATES N
LEAR REGULATORY COMMISSIO WASHINGTON, D.C. 20555 October 23, 1979 NOTE TO FILES FROM:
Donald F.
Hassell Legal Assistant
SUBJECT:
MEETING BETWEEN CHA t'1AIN HENDRIE AND OFFICIALS OF PACIFIC GAS u ELECTRIC (PGSE)
CONCERNING REPORTING STATUS ON GENERIC HATTERS RELATED TO LICENSING -- DIABLO CANYON On Friday,.October 19, 1979 at 10:o0 AM Chairman Hendrie met with officials
. from PG8E,
- namely, Frederick Nielke, Chairman of the Board, PGGE, Bart Shackelford, President,
- PGRE, and Gene Blanc, a representative of PGaE.
Leonard Bickwit and
.myself were also present; Ilr. Frederick Ilielke opened the meeting by indicating that the meeting's purpose was to convey PGSE's concerns about the procedural and timing aspects of addressing Tf1I issues, and recent NRC staffing changes.
Specifically, he noted that it appeared that the Tt',I issues should be addressed generically for all PWR's including Westinghouse plan s.
He felt that NRC should avoid any discrim-ination procedurally against Diablo Canyon in the treatment of TltI issues.
In short he expressed the concern that Diablo Canyon not be singled out in this area.
With regard to staffing, Wr. llielke noted that certain organizational changes in NRR had resulted in staff members who were familiar with Diablo Canyon being disbanded and assigned to work with the Lessons Learned group.
After Hr. Mielke completed his opening
- remarks, Chairman Hendrie pointed out that Diablo Canyon is in adjudication and attention had to be given to ex parte considerations.
Chairman Hendrie expressed his belief however, that he could discuss procedural.
and generic matters.
The Chairman indicated that he was concerned with how NRC handles THI issues.
He set forth,certain aspects of the Commission's policy statement on interim licensing.
The Chairman noted that staff's short-term TNI recommendations have gone out and that the lona-term TNI recommendations were about to come out.
Noting that the Kemeny Commission report was about to come out, the Chairman indicated that he could not predict how HRC will go forward after completing its analysis of that report.
t1r. thielke reiterated his feeling that ThI issues be treated generically and that Diablo Canyon should not be singled out.
Speaking again to the staffing question t1r. t/ielke believed that Jim Knight along with the NRC staff members who were familiar with, Diablo Canyon should. be used to respond to ACRS.
'He felt that ACRS is treating Diablo Canyon differently than North Anna or Salem.
I Chairman Hendrie indicated that he saw no reason to treat Diablo Canyon differently as to generic THI issues.
He also indicated tha where TNI issues are clear cut and the Commission can mandate a position, that he thought such matters would be given generic treatment.
- However, he said he thought that some Tl<I is'sues would be taken up in the context of a specific plant.
2 Mr. Mielke noted that there was the question of whether there should be a hearing and that a decision on that question'houldn't be taken lightly.
The Chairman responded by guessing that petitions to reopen might be filed f'r some plants where there are proceedings pending and for other plants where proceedings are not pending.
The Chairman also pointed out that one had to recognize that the Presidential Commission will be giving a lot of advice.
Moreover, the Chairman expressed the feeling that, based on conversations with the investigators during his deposition, the Presidential Coamission sees a lot of difference between shutting down a plant in operation as distinguished from allowing a plant to start operating for the first time.
Gene Blanc noted that PGSE does all of its own engineering and their engineers had submitted a lessons learned report of their own.
Furthermore, he indicated that PGKE had been very responsive in that PG8E had submitted its response to the NRC's staff's lessons
- learned, and also filed a response to ACRS questions.
The Chairman.said he felt reasonably certain that the same staff experts would go back on the Diablo Canyon case to respond to ACRS questions, although he noted that might not be the case for Mr. Knight in view of his other duties.
- Finally, be indicated that if Diablo Canyon had been very responsive to staff, this was good for NRC since it creates the maximum opportunity for resolution of oustanding issues.
~ Mr. Mielke indicated that the power supply in California had become critical this past summer because twice they came close to turning off some power.
- Finally, he pointed out that one of the biggest slowdowns may be the ACRS.
At this point the Chairman stood up and ended the meeting at 11:25 AM.
cc:
PDR Docket No. 50-275 Docket No. 50-323
COMMISSIONER:
Richard T.
Kennedy UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CU boCKETgg us) tc'.~
f~ ) 8 f/')
OfAc55fQp $~p)~
In the Matter of PACIFIC GAS 5 ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant,
)
Units 1
and 2)
)
Docket Nos. 50-275 OL 50-323 OL il MEMORANDUM TO COUNSEL FOR THE PARTIES I am currently considering the motion filed by Joint Intervenors on October 29, 1979 requesting the institution of proceedings to determine my qualification to consider the operating license application for the Diablo Canyon Nuclear Power Plant.
That motion was filed shortly after a meeting I held with, and at the request of, three officials from Pacific Gas 5 Electric, the applicant-utility in the subject proceeding.
The details of that meeting are set forth in a Memorandum of Conversation (attached) dated October 19,
- 1979,
'hich was served on all parties to the Diablo Canyon licensing proceeding, and placed in the Commission's Public Document Room.
On March 6, 1980, the Commission issued an Order stating that consistent with its past practice, disqualification decisions reside exclusively with the challenged. Commissioner and are not review-able by the Conmission.
In accordance with that Order, I am hereby granting all parties to this proceeding an opportunity to present to me any relevant information concerning the October 19, 1979 meeting before I reach a final determination on Joint Intervenors's motion to disqualify me from this proceeding as a result of that meeting.
Briefly, the representatives of Pacific Gas 8 Electric, Frederick Mielke, Chairman of the Board, Bart Shackelford, President, and Gene Blanc, an employee, requested an opportunity to meet with me to discuss certain aspects of the Commission's approach to licensing in the aftermath of Three Nile Island.
I agreed to meet with the three PGLE representatives to discuss their concerns, and my secretary arranged a meeting for October 19, 1979.
At no time prior to the October 19, 1979 meeting did I engage in discussions with the three PG&E representatives.
At the outset of that meeting, which was also attended by my legal assistant, John N. Stephens, I advised Messrs.
Mielke, Shackelford, and Blanc that; while I was willing to discuss the licensing process in general
- terms, I considered it inappropriate to discuss issues related to any licensing proceeding then pending before the Coranission.
With that limitation in mind, we proceeded to discuss the issue of generic licensing reform, with particular emphasis on the potential delay in licensing occasioned by the Three Mile Island incident.
Mr.
Mielke expressed some concern that certain licensing reform measures being con-sidered by the Commission may have an adverse effect on licensing proceedings currently underway.
In this context, he further noted that with respect to the Diablo Canyon operating license proceeding, it did not appear to him that it was receiving treatment on par with other proceedings pending before the Commission.
I assured Mr. Nielke that the Coranission would carefully examine the reform measures being considered and that to the best of my knowledge all licensing proceedings were receiving equal treatment.
Shortly thereafter the meeting was adjourned.
Joint Intervenors, in filing their motion, have taken the position that as a result of this meeting, "substantial questions regarding (my) qualification to
I~
participate further in this proceeding are raised."
After having reexamined my October 19, 1979 Nemorandum of Conversation in light of the pertinent statutes and judicial decisions pertaining to disqualification, I have tentatively con-cluded.that there is no basis for disqualification and that Joint Intervenors have not established a case for disqualification.
In so concluding, I have carefully examined 5557(c) of the Administrative Procedure Act and 10 CFR 2.780(c) of the Commission s implementing regulations, which require all ex garte communica-tions to be detailed in a memorandum to be placed in the public record.
Ny memo-randum of October 19, 1979 satisfies that requirement.
In this regard, I wish to emphasize that by filing this memorandum,'
have not concluded that the meeting of October 19, 1979 constitutes an ex ~arte contact.
- Indeed, 92.780(a),
which defines an ex ~arte contact as "any evidence, explanation, analysis, or advice, whether written or oral, re ardin an substantive matter at issue in a proceeding on the record then pending before the NRC..." (emphasis added), clearly suggests'that the meeting does not fall within the proscription on ex ~arte contacts.
Nevertheless, in the interest of ensuring, that all 'parties to this proceeding are'accorded full due process rights, I elected to submit a memorandum detailing the substance of
. the October 19, 1979 meeting.
I have further considered the pertinent body of judicial decisions pertaining to disqualification, including Withrow v. Larkin, 421 U.S.
35 (1975),
Amos Treat 5 Co. v.
- SEC, 306 F.2d 260 (D.C. Cir. 1962),
Cinderella Career and Finishin Schools Inc. v.
FTC, 425 F.2d 583 (D. C. Cir.
1970),
and Roberts
- v. Norton, 549 F.2d 158 (10th Cir. 1977),
and have tentatively concluded that Joint Intervenors have not met their burden of establishing pre-
judice, bias, or prejudgment of issues on my part.
I have carefully examined the submissions of Joint Intervenors and find no support for an inference that my meeting of October 19, 1979 evidences pre-existing bias on my part or will adversely affect my ability to consider the Diablo Canyon proceeding in a fair and impartial manner.
There is no evidence, either in the motion filed by Joint Intervenors or in my Memorandum of Conversation, which would suggest that my participation in this proceeding will jeapordize Joint Intervenors'ight to a fair and impartial hearing.
As I indicated to Hessrs.
Hielke, Shackelford, and
- Blanc, any discussion of the Diablo Canyon licensing proceeding must wait until that case is. formally before the Commission for review.
At no time during our meeting did I express any views on individual licensing proceedings.
In short,
/
I find myself fully capable of considering this licensing proceeding in an unbiased manner, free of any constraints on my independent judgment.
In the interest of ensuring thorough ventilation of all views on this
- matter, however, I am hereby inviting any party to this proceeding to submit additional relevant information which may assist me in reaching a final decision on whether the events of October 19, 1979 require disqualification.
I request that these views be transmitted to me by Harch 31, 1980.
After reviewing these submissions, I will make my final decision.
Richard T. Kennedy
~f Commissioner Dated at Washington D
C.
this wy ~~day ofj~~Z~, 1980.
pe 860y
<<~4
+w*w+
OFFICE OF THE COMMISSIONER MEMORANDUM OF CONVERSATION
'NITED STATES NU I EAR REGULATORY COivlMISSION
'LVASHINGTON,D.C. 20555 October 19, 1979
'b
~oCKazo lS USNRC hfAR ) 3]98P~"
0/fica ofQlg~
5 oczIing Branch 8
On Friday, October 19, I met in my office with Frederick Nielke, Chairman of the Board of Pacific Gas 5 Electric (PGEE), Bart Shackelford, President
- PG5E, and Gene Blanc also of PGSE.
They had called my office earlier in
'he day and requested the opportunity to introduce to me Mir. YIielke, PGEE's new Board Chairman.
Afier a few minutes of introductions and exchange of pleasantries, Nr<< Nielke indicated that there were some aspects of the Commission's approach to licensing in the aftermath of Three Mile Island that he would like to discuss.
I told Mr. Mielke that while I would be happy to discuss generally with him the licensing process and how it might be changing following TNI, it would be inappropriate for me to discuss issues as they affect any particular proceeding.
Mr. Nielke indicated that he understood but that there were some generic matters which he would like to discuss.
He went on to indicate that he was concerned that new licensing procedures, whatever they might be, would significantly delay proceedings already underway.
Nr. Nielke noted that, since TtlI
~ the HRC staff personnel who had previously been working on specific cases had been moved to other duties thus delaying the staff's consid-eration of those cases such as Diablo Canyon.
He noted further that with respect to the Diablo Canyon proceeding that he was concerned that it was not receiving the same treatment as other proceedings.
He indicated, as an example, that the ACRS has not yet received answers from the staff to its specific questions on Diablo Canyon.
Nr.. Nielke stressed that PGSE felt that it had accomplished everything asked of it by the staff and that the Licensing Board had already reached a
favorable (to PGSE) conclusion.
I I told Nr. Nielke that I, too, am concerned that the HRC and its staff id y~d1yi 1i i
0
<<<<. <<il 1
g and d lays in licensing proceedings following TYII were clearly inevitable, it is my intent that the Commission look carefully at the possible impacts these changes will have on the licensing process as a whole.
As for concerns that the HRC staff's processing of individual cases had been hampered following TMI, I assured Nr. Nielke that I believed the staff had returned to such v>ork and that, as far as I knew, all proceedings were being treated equally.
Finally, I indicated that while I was under the impression that the Board had reached or was near a conclusion in Diablo Canyon, I could review the case only when the Board's decision and the record was brought before the Commission.
I
~,
I Hr. Hielke, Hr. Shackelford and Hr. Blanc said that they appreciated the opportunity to meet me, and I indicated that I was pleased to have the opportunity to meet Hr.. Hielke.
R. T. Kennedy P
Notes of October 19, transcribed,-, reviewed by, and approved by Commissioner Kennedy on October 26...'~~~~g'
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMlISSION In the Hatter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY )
)
(Diablo Canyon Nuclear Power
)
Plant, Units 1 and 2)
))'
)
Docket No. (s) 50-275 50-323
~
~
CERTIFICATE OF SERVICE
- I hereby certify that I have this day served the foregoing document(s)
+'pon each person designated on the official service list compiled by the Office of the Secretary of the Commission in this proceeding in accordance with the requirements of Section 2.712 of 10 CFR Part.2-Rules of Practice, of the Nuclear Regulatory Commission's Rules and Regulations.
I Dated at Uashington, D.C. this day of'142~
'19/~.
~
~
~
T::::.
E:::::::::.
r::.::::::::.i
~
~ ~ ~
Office o
'he Secietary of the C mmission
....., ~i~~ 4 ~>~
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UNIX& STATES OF ARNICA NUCLEZ REGLLA'ZORY CO'ZISSIOZ In the Matter of PACIFIC GAS A%) ELECTRIC COMPANY
( Diablo Canyon, Units 1 and 2)
Docket No.(s) 50 275 50-323 SERVICE LIST Elizabeth S. Bowers, Esq.,
Chairman Atomic Safety and Licensing Board U.S, Nuclear Regulatory Commission Washington, D.C.
20555 PhX,lip A. Crane, Jr.,
Esq.
Pacific Gas 6 Electric Company 77 Beale Street, Room 3127 San Francisco, California 94106 Mr. Glenn 0. Bright Atomic Safety and Licensing Board U.S.'uclear Regulatory Commission Washington, D.C.
20555 Dr. William E. Martin Senior Ecologist Battelle Memorial Institute
- Columbus, Ohio 43201 Pichard S.
- Salzman, Esq.,
Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr.
W. Reed Johnson Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Thomas S.
- Moore, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Counsel for NRC Staff Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
205554 Mrs. Elizabeth Apfelberg c/o Ms.
Nancy Culver 182 Luneta Drive San Luis Obispo, Cali ornia 93401 l
Janice E. Kerr, Esq.
California Public Utilities Commission 5246 State Building
~ San Francisco, California 94102 Mrs. Raye Fleming 1920 Mattie Road Shell Beach, California 93440 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara, California 93105 Mrs. Sandra A. Silver 1760 Alisal Street San Luis Obispo, California 93401 Mr. Gordon A. Silver 1760 Alisal Street San Luis Obispo, California 93401 Paul C. Valentine, Esq.
321 Lytton Avenue Palo, Alto, California 94302 Yale I. Jones, Esq.
100 Van Ness Avenue, 19th Floor San Francisco, California 94102
Board and arties continued 50-275, -323 Brent Rush forth, Esq.
Stephen M. Kristovich, Esq.
Center for Law in the Public Interest 10203 Santa Monica Drive'os Angeles, California 90067
'David F. Fleischaker, Esq.
1735 I Street.,
N.W., Apt. 709 Washington, D.C.
20006 Arthur C. Gehr, Esq.
Snell
& Wilmer 3100 Valley Center Phoenix, Arizona 85073 Mr. James
- 0. Schuyler Nuclear Prospects Engineer Pacific Gas
& Electric Company 77 Beale Street San Francisco, California 94106 Herbert H. Brown, Esq.
Hill, Christopher
& Phillips, P.C.
1900 M Street, N.W.
Washington, D.C.
20036 Mr. J. Anthony Klein Governor's Office State Capitol Sacramento, Cakifornia 95814 Mr. Carl Neiburger San Luis Obispo Telegram-Tribune P.O.
Box 112 San Luis Obispo, California 93406 Mr. James Hanchett Public Affairs Officer, Region V U.S. Nuclear Regulatory Commission 1990 N. California Boulevard, Suite 202 Walnut Creek, California 94596 Bruce Norton, Esq.
3216 North Third Street, Suite 202
- Phoenix, Arizona 85012 Yw. W. Andrew Baldwin, Esq.
Friends of the Earch 124 Spear San Francisco, California 94105
1
~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
John F. Ahearne, Chairman Victor Gilinsky Richard T.
Kennedy Joseph M. Hendrie Peter A. Bradford In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2) gO OGS qG qQV qP'~a~~
jg re~~
Doc et Nos.
50-275 0.L.
50-323 0. L.
OROER CLI-80<
'n October 24 and 26, 1979, Joint Intervenors filed motions with the Commission requesting that Commissioners Kennedy and Hendrie disqualify themselves from the Diablo Canyon'perating license proceeding because of off-the-record meetings these officials held on October 19, 1979, with officials of the applicant, Pacific Gas and Electric Company.
If they do not elect to disqualify themselves, the Joint Intervenors requested that the Commission institute a proceeding, complete with the rights of discovery and cross-examination, to determine whether Commissioners Kennedy and Hendrie shoul d be di squa 1ified.
Consistent with the Commission's past practice, and'he generally accepted practice of the federal courts and administrativ~gencies, the Commission has determined that disqualification decisions should reside exclusively. with the challenged Commissioner and are not reviewable by the Commission.
Commissioners Kennedy and Hendrie are now consider'ng the Joint Intervenors'equest.
If they
are not inclined to disqualify themselves, before making a final decision they will provide the parties to.this proceeding with an explanation of their pro-posed course of action and will afford the parties an opportunity to present any information to them which may bear on their disqualification decision.
Commissioner Bradford dissents from this order.
He would have pre-ferred at least to allow depositions after which the two Commissioners would make the first decision
- and, in the event of an appeal, the full Commission would review the fairness of the result.*
It is so ORDERED.
For the Commission SN L J.
K Secretary of t e Commission Dated at Washington, D.C.
this day off >X g
1980.
Section 201 of the Energy Reorganization
- Act, 42 U.S.C.
- 5841, provides that action of the Commission shall be determined by a "majority vote of the members present."
Commissioners Gilinsky and Kennedy were not present at the meeting at which this Order, was approved.
Had they been present they would have voted with the majority.
Accordingly, the formal vote of the Commission is 2-1.
UNITED STATES OF A~aiERICA NUCLEAR REGULATORY COMMISSION Xn the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY )
)
(Diablo Canyon Nuclear Power
)
- Plant, Uni.ts 1 and 2).
)
)
)
)
Docket No.(s) 50-275 50-323 CERTIFICATE OF SERVICE I hereby certi.fy that I have this day served the foregoing document(s) upon each person designated on the official service list compiled by the Office of the Secretary of the Commission in this proceeding in accordance with the requirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Commission's Rules and Regulations.
~
~ ~ ~ ~
~
j::.':::::.:::
~
~
~ ~
ll'::;:::::.;
Dated at Washington, D.C. this day oe 19/6 Office 'o e Secretary of the mmission
UNlTZD STATES OF ~~~ICA NUCLZPZ HZGL7='RORY CO'~'ISSION In the Matter o PACIFIC GAS A%) ELECTRIC COMPANY
( Diablo Canyon, Units 1 and 2)
Docket No. (s) 50 275 50-323 SE'ROICE LIST Elizabeth S. Bowers, Esq.,
Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 PhX,lip A. Crane, Jr.,
Esq.
Pacific Gas 6 Electric Company 77 Beale Street, Room 3127 San Francisco, California 94106 Mr. Glenn O. Bright Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. William E. Martin Senior Ecologist Battelle Memorial Institute
- Columbus, Ohio 43201 Dr.
W. Reed Johnson Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Thomas S. Moore, Esq.
Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Board Counsel for NRC Staff Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
205554 Mrs'lizabeth Apfelberg c/o Ms.
Nancy Culver 182 Luneta Drive San Luis Obispo, California 9
t I
3401 I
Pichard S.
- Salzman, Esq.,
Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulato~
Commission Washington, D.C.
20555 Janice E. Kerr, Esq.
California Public Utilities Commission 5246 State Building San Francisco, California, 94102 Mrs. Raye Fleming 1920 Mattie Road Shell Beach, California 93440 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara, California 93105 Mrs. Sandra A. Silver 1760 Alisal Street San Luis Obispo, California 93401 Mr. Gordon A. Silver 1760 Alisal Street
'an Luis Obispo, California 93401 Paul C. Valentine, Esq.
321 Lytton Avenue Palo, Alto, CalifornXa 94302 Yale I. Jones,'sq.
100 Van Ness Avenue, 19th Floor San Francisco, California 94102
Board and arties continued 50-275,
-323 Brent Rushforth, Esq.
Stephen M. Kristovich, Esq.
Center for Law in the Public Interest 10203 Santa Monica Drive Los Angeles, California 90067 David F. Fleischaker, Esq.
1735 I Street, N.W., Apt. 709 Washington, D.C.
20006 Arthur C. Gehr, Esq.
Snell 6 Wilmer 3100 Valley Center
- Phoenix, Arizona 85073 Mr. James
- 0. Schuyler Nuclear Projects Engineer Pacific Gas 6 Electric Company 77 Beale Street San Francisco, California 94106 Herbert H. Brown, Esq.
Hill, Christopher 6 Phillips, P.C.
1900 M Street, N.W.
Washington, D.C.
20036 Mr. J. Anthony Klein Governor's Office State Capitol Sacramento, Cakifornia.
95814 Mr. Carl Neiburger San Luis Obispo Telegram-Tribune P.O.
Box 112 San Luis Obispo, California 93406 Mr. James Hanchett Public Affairs Officer, Region V U.S. Nuclear Regulatory Commission 1990 N. California Boulevard, Suite 202 Walnut Creek, California 94596 Bruce Norton, Esq.
3216 North Third Street, Suite 202 Phoenix, Arizona 85012 Pw.
W. Andrew Baldwin, Esq.
Friends of the Earch 124 Spear San Francisco, California 94105