ML16340A857
| ML16340A857 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 03/24/1980 |
| From: | Buck J NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8003310238 | |
| Download: ML16340A857 (30) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g
\\ ~ A,$ hfh Plate John H. Buck Member, Appeal Board OHico oi the S"cd~
Ccch.ting a Senica Ura 0
In the Matter of PACIFIC GAS 6 ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2)
Docket Nos.
L 50-323 OL MEMORANDUM TO THE COMMISSION March 24, 1980 On March 13, 1980, joint intervenors filed with the Commission a request that it either take upon itself the hearing of the appeal on the seismic issues now before the Appeal Board or reconstitute the Appeal Board 6o hear that appeal.
Claiming they are entitled to an impartial Appeal Board, the joint intervenors advance as ground for their alternative request that "Dr. Buck's appointment to the Appeal Board violates the appearance of impartiality."
Apparently recognizing the possibility that neither request might be granted, the joint intervenors asked as a
third possibility that the Commission "refer to Dr. Buck the question as to whether, in view of the argument cited
'I
in [joint intervenors']
- motion, he should recuse himself from the Appeal Board assigned to hearing the appeal."
By order dated March 21,
- 1980, (CLI-80-8, ll NRC
) the Commission has done so.
This memorandum responds to that directive.
That a right. to 'a hearing before an impartial tribunal is a fundamental requirement is not at question.
What, must be decided is whether my continuation on. the Appeal Board jeopardizes joint intervenors'due process rights, therefore requiring my recusation from the Board.
Joint intervenors do not allege actual inability on my part to deal objectively with the issues that may be involved in their appeal.
- Indeed, they grant, that I may well have that capability.
Motion, p.
15.
- Rather, the joint intervenors charge that my appointment to this Board may "violate the appearance of impartiality" because I may have "'difficultyin putting aside previously expressed views'elevant to the seismic issues on appeal,"
and that I have a "preconceived attitude toward those issues."
Id., pp.
14'16.
The joint intervenors cite two bases for this assertion.
One is that I had rejected as "too conservative" the opinions of Dr. Mihailo Trifunac, an expert witness who appeared on behalf of opponents to the issuance of construction permits in two different proceedings and whose testimony is also
involved in the proceeding at bar.
Having twice rejected his opinions, they say, I am "predisposed to do the same here."
Motion, p.
16.
This ground is simply insufficient in law and fact.
The Supreme Court has noted with approval that "judges frequentlytry the same case more than once and decide identical issues each time."
FTC v.
Cement Institute, 333 U.S.
- 683, 703 (1947).
Certainly, a
stronger constitutional compulsion is not imposed on an agency adjudication in this respect.
Ibid.
The joint intervenors base their "appearance" of par-tiality claim on the following circumstances.
,Dr. Trifunac 1/
appeared in these earlier proceedings to give expert testimony on the relationship between earthquake intensity and the resulting ground acceleration.
He expressed his opinion as to the level of ground acceleration which the reactors in question should be built to withstand in order to provide reasonable protection for the public health and safety.
Both the applicants and NRC staff presented their own expert witnesses on the subject.
There was agreement among all the witnesses on the general relationship between earthquake intensity and resultant ground acceleration, but 1/
Public Servic'e Com an of New Hampshire (Seabrook Station, Units 1 and 2
, ALAB-422, 6
NRC 33 1977) and Consolidated Edison Com an of New York (Indian Point, Units 1, 2 and 3),
ALAB-436, 6
NRC 547 (1977).
T Dr. Trifunac differed from the other witnesses in the value of acceleration which the reactors at the two'ites should be built to withstand.
Zn each case, on the evidence pre-
- sented, the majority members of the two Boards decided that Dr. Trifunac's opinion was more conservative than necessary 2/
considering all the factors involved.
To be sure, there was disagreement among the members of each Board on the weight to be given Dr. Trifunac's opinion.
But it, is neither I
sinister nor even unique for judges or adjudicators to dis-agree.
All this shows is the truth of the old adage that 3/
reasonable minds can and often do differ on any given issue.
I find no substance to joint intervenors'laim that my votes in these two proceedings suggest the appearance of personal bias.
The joint intervenors rely on ~Holle
- v. Lavi:ne, 553 P. 2d 845 (2d Cir. 1977), cert.deni'ed, 435 U. S.
947 (1978),
as compelling my disqualification from the present Board.
Motion, pp.
14-16.
In that case, the court of appeals con-sidered for the second time a district judge '
denial of a
~2 6
NRC at 62-64; 6
NRC at. 581-585.
3/
In this connection, Mr. Rosenthal voted with me in the Seabrook appeal.
He is a lawyer with long experience.
He has served as Chairman of the Atomic Safety and Licensing Appeal Panel since 1972.
In the Indian Point appeal, I was joined by Dr. Quarles.
He is a former Dean of the School of Engineering and Applied Science, University of Virginia, who has a broad technical background.
It is significant that persons with such diverse training and experience also agreed with my evaluation of Dr. Trifunac's opinion.
claim for financial assistance under New York's Social Ser-vices Law and Regulations.
Zn its consideration of the second
- appeal, the court found that the claimant was entitled to such assistance but left for trial court determination the appro-
'riate remedy.
Xn sending the case back to the lower court for the second time, the court made the observation on which the joint intervenors heavily rely:
I
't Since it appears the original judge might have difficulty in putting aside previously expressed
- views, and reassignment is advisable to avoid the appearance of prejudgment, the case will'be remanded to the District Court for reassignment in keeping with the prin-ciples stated in Un'i;ted States v. Robin, 553 F.2d 8, 10 (2nd Cz.r. March 30, 1977).4/
Just what factors relating to the original trial judge' conduct persuaded the Court of Appeals to direct reassignment are not evident.
When that Court heard the claimant's earlier appeal, it had directed the trial judge to convene a three-judge court to consider the claimant's constitutional argu-ments in the event that the judge should find such assistance 4/
563 F.2d at 851.
ln United States
- v. Robin, the appellate court set out the principal factors for determining whether further proceedings should be conducted before a different
- judge, absent proof of personal bias requiring recusation.
Xn that connection, the court stated that reassignment to another judge may be advisable in order to avoid. "an exer-cise of futility" in the "rare case where a judge has re-peatedly adhered to an erroneous view after the error is called to his attention."
Applying the facts of that case to the principles enunciated, the court found no warrant for assignment of the remanded proceeding to a different judge.
barred by state law.
Even though, on remand, that was found to be the case, the trial judge nevertheless denied a motion to convene a three-judge court.
From its reference to the Robin decision, it is reasonable to assume that the recalcitrance of the trial judge which earlier heard the case wa's the basis for the appellate court's decision directing reassignment.
But the circumstances alleged by the joint intervenors as suggesting the "difficulty"I may have in
"'putting aside previously expressed views'elevant to the issues now under appeal" are far different from those which confronted the ~Holle court.
Certainly, there has been no showing much less an allegation -- of refusal on my part to carry out any specific direction of the Commission in this or any other proceeding.
1 find no cause in the joint inter-venors'first basis for recusing myself from the proceeding.
As their second basis for claiming "violation of the appearance of impartiality," the joint'ntervenors point to my earlier membership on the Appeal Board for the construction permit proceeding for the Diablo Canyon plant.
Zn their view, that Board "failed to consider adequately the intervenors'alid concerns regarding the p'lant s seismic design and, in-
- stead, approved issuance of a construction permit for Unit 2 at Diablo Canyon."
Motion, p. l6.
One error occurred, accord-ing to the joint intervenors, because the Board sanctioned an
0
inadequate site investigation; the second is alleged to have been caused by the Board's rejection of requests to reopen the record to examine new earthquake data.
Id., pp. 16-17.
These allegations of error are nothing but a bald attempt to resurrect ancient history.
The alleged transgressions which are claimed to have occurred took place in 1971 when the Appeal Board decided an appeal from the Licensing Board's decision authorizing construction of Unit 2 of the Diablo Canyon plant.
ALAB-27, 4 AEC 652.
Zt is far too late to bring up these claims of error.
To refute these allegations point by point at this juncture would give an unwarranted semblence of credence to the charges.
It suffices to observe that the decision to approve construction of Unit 2 of the Diablo Canyon plant was made (and necessarily, the adequacy of the plant's seismic design was agreed to) by both the Licensing and Appeal Boards based on the evidence in 5/
the record.
This means that six different persons on the two Boards -- each with a broad legal or technical background--
Their reasons are fully explained i'n the decisions.
See Licensing Board Decision dated December 8, 1970, 4 AEC 447 and the decision of the Appeal Board, ALAB-27, 4 AEC 652.
The actions taken by the applicant and agency staff in connection with the seismic matters both before and after issuance of the construction permit for Unit 2 are also discussed in the enclosure to the letter dated March 31,
- 1977, from Lee V. Gossick to Congressman Morris K.
Udall, referenced in the joint intervenors'otion.
6/
joined in that assessment.
To claim now that my involvement in that decision, unanimously agreed to by all who were called I
upon to adjudge the matter, somehow foreshadows "partiality" in my consideration of the seismic issues currently under appeal goes beyond reason.
As a final matter, I reviewed the relevant Appeal Board 7/
opinions before coming to a firm decision.
1 find nothing s
in them requiring my recusation from the Appeal Board for this proceeding.
John H. Buck 6/
The Licensing Board members were:
James P. Gleason, a
lawyer who 1'ater served as the elected chief executive officer for Montgomery County, Maryland; Thomas H. Pigford, Professor of Nuclear Engineering at the University of California at Berkeley (and recently a member of the Kemeny Commission);
and Hugh C. Paxton, a physicist at the Los Alamos Scientific Laboratory.
The Appeal Board members were:
Algie A. Wells, a long-time government lawyer and administrator; Lawrence R. Quarles, and myself.
ln our Midland decision we reviewed the grounds on which a member of an adjudicatory body such as an Atomic Safety and Licensing Board may be disqualified.
An administrative trier "is subject to disqualification if he has a direct,
- personal, substantial pecuniary interest in a result; if he has a 'personal bias'gainst a participant; if he has served in a prosecutive or investigative role with regard to the same facts as are in issue; if he has prejudged factual -- as di.stinguished from legal or policy -- issues; or if he has engaged in conduct which gives the appearance of personal bias or prejudgment of factual issues."
Consumers Power Co.
(Midland Plant, Units 1 and 2), ALAB-101, 6 AEC 60,
~63 1973).
Certainly none of these
- bases, save the last, has any possible relevance to the joint intervenors'ccusations.
As to the last factor, 1 have already covered it,
~su ra
Q PAC IP ZC C'rA.G A.ND ELECT P.IC C OMPA.N'T LAW QEPARTMENT - 77 BEALE STREET, 31ST FLOOR
~
SAN FRANCISCO. CALIFORNIA 94106
~
(415) 7B1 ~4211 March 21, 1980 Mr. Richard S.
Salzman Chairman Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commissi.on Washington, D. C. 20555
Dear Mr. Salzman:
Res Docket Np. 50-275 Docket No. 50=$23 Di.ablo Canyon Units 1 and 2
Zn accordance with the Prehearing Conference Order dated February 25, 1980, enclosed are the names and qualifications of two witnesses we may offer in connecti.on with the heari.ng to be held on the Di.ablo Canyon security plan.
The order also solicited additional suggested procedures and we have two, both concerning the schedule.
1.
Zntervenors are given until April 16, 1980 to study the sanitized versi.on of the security plan and set forth with par>>
ticularity the exact aspects of the plan they challenge.
- Hawever, until we have that information we cannot, be certain that we have named all our witnesses.
We may elect to offer witnesses with more speci.alized knowledge of those portions of the security plan being challenged than the two named herein.
- 2. All parties are given until May 7 to challenge any proffered witness yet the Zntervenors must refi.ne their contentions by April 16.
However, the witness cannot look at the plan or a sanitized version'hereof unti.l he has been qualified.
The prehearing conference order directed the staff to prepare a form of affidavit of non-di.sclosure and protecti.ve order.
As thi.s is wri.tten, due to mechanical transmi.ssion difficulties only the affidavi.t has been received.
However, our comments are applicable to both.
1)
~ 4 PACiFIC GAS AND ELE&IC COMPANY COPE Mr. Richard S.
Salzman March 21, 1980 which are set forth'below:
1.
We believe the exception in paragraph 3 makes this paragraph virtually meaningless and the exception should be deleted.
2.
Paragraph 4 might read better if everything from the word "photocopies" were deleted and the following inserted
. copies of protected information and any evaluations which contain protected in-formation."
3.
We would prefer that there be no public discussion about 'the security plan proceeding to cut off a potential source of leaks.
Accordingly, we would propose that the following sentence be added to the affidavit:
"X will not express any opinion as to the adequacy of the security plan except at an in camera hearing."
4.
We believe that the location'where the plan willbe made available should be specified.
This appears to be contemplated by the prehearing conference order (top of page 6).
We suggest that the location be a room in our 215 Market Street Building to be speci-fied.
Arrangements can be made to preserve the privacy of the witness and his counsel.
Finally, we wish to advise the Board,and all parties in advance that if and when we are ordered to turn over even the sani>>
tized version of the plan we will file a motion for a stay and an appeal to the Commission.
We believe this matter is of sufficient importance that it ought to be decided by the Commission itself.
Such an appeal should have a minimal adverse effect upon the schedule.
We did not earlier appeal ALAB-580 because there was no qualified
- witness, no final order to turn over the plan, and thus nothing to appeal.
We believe that in fairness we should make known in advance what our position on this matter willbe.
Very truly yours, Philip A. Crane~ Jr.
Enclosure CC w/enc.c W. Reed Johnson Thomas S. Moore NRC Commissioners Service List
~ ~
NAME Alfred W. Nedcalf SOCIM SECURITY NUMBER:
405-44-3198 TZTIZ:
DEPART T:
Senior Nuclear Generation Engineer Nuclear Generation, General Office Pacific Gas and Electric Company 77 Beale Street, San Francisco, CA 94106 EDUCATION:
B.E.E. University of Louisvil1e, 1956 MS in Physics, University of Louisville, 1961 Graduate Classes in Nuclear Engineering, University of Washington 1962-1964 Professional Affiliations: Northern Chapter of American Nuclear Society WORK EXPERIENCE:
1956-1959 U. S. Navy, Lt. (jg), Gunnery Officer aboard an attack transport (APA-188).
Boat group commander for small craft making amphibious landings and of.icer in charge of the landing party from APA-188.
Instructor at the Naval Amphibious School, Little Creek, Va. in landing tactics and control of a beachhead.
1961-1964 General Electric Company, Pile Physicist, Plutonium Production Reactors,
- Hanford, Washington.
Performed safety and loading calculations for several large reactors.
(Q Clearance) 1964-1966 U.S. Atomic Energy Commission, Reactor Physicist, Technical Staff of Berkeley, CA office.
Responsible for technical guidance of projects conce ning nuclear reactor physics.
(Q Clearance) 1966-1970 University of California, Lawrence Livermore Laboratory, Shift Physicist at the Livermore ?ool Type Reactor.
Responsible for the safe and efficient operation and 'oading of a 3 megawatt test reactor.
(Q Clearance) 1971-1979 Pacific Gas and Electric Company, S
earn Generation Engineer.
Performed technical and licensing suoport work for an operating BWR unit, includ'ng safety studies, fu 1 management, reactor operations and plant security.
CLEDQjCE:
Currently hold a U.S; Nuclear Regula ory Cor."m.ssion "L" Clearance.
Bryan A. Dettman 2001 San Miguel Drive Walnut Creek, CA 94596 (415) 937-4158 (Res. )
(415) 781-4211 (Bus.)
EMPLOYMENT HISTORY I.
Au ust 1975 - Present Pacific Gas and Electric Co.
77 Beale Street San Francisco, CA 94106 A.
June 1979 - Present:
Supervising Security Representative, Corporate Security Department Primary Responsibilities:
1.
Supervision of Corporate Investigations Staff.
2.
Supervi.sion of Corporate Nuclear Security program, a)
Nuclear site personnel security screening.
b)
Federally mandated security program audits.
3.
Liguified Natural Gas (LNG) Security Plans and Programs (California, Alaska and Indonesia terminals) 4.
Emergency Planning a)
Corporate b)
Nuclear Sites 5.
Subsidiary Company Security (Coal, Oil and Gas Pipelines Drilling Operations, etc.)
B.
August 1975 - June 1979:
Security Supervisor responsible for Security ofNuclear Power Plants owned and operated by P.
G. and E.
Primary Responsibilities:
1.
Development and implementation of plans and procedures which are in compliance with Federal Regulations pertaining to nuclear facilities.
(All nuclear facilities are Federally regulated and subject to Nuclear Regulatory Commission audit and inspection.)
BRYAN A. DETTMAN 2.
Design of systems and facilities required for the protection of the plants, including an access control building in excess of 8,000 sq, ft.
3.
Specification and purchase of security related equipment including radios, alarm systems, computers, vehicles, emergency equipment, etc.
Liaison with local, state and federal law enforcement agencies.
5.
Administration of guard forces comprising in excess of 200+
persons.
6.
Handling anti-nuclear demonstrations.
II.
December 1971 - Au st 1975 Ba Area Ranid Transit District (BART) 800 Madison Street
- Oakland, CA Police Services Division Police Lieutenant (Under California law, the Bay Area Rapid Transit District maintains its own police force charged with the total law enforcement responsibilities for the system.)
Positions held while with BART POLICE:
A.
Watch Commander:
Responsible for command of a shift in the Bureau of Field Operations consisting of 30+ Officers, 7 Sergeants, and 6 non-sworn clerical and communications personnel.
Included in this function was the development of beat structures and operating procedures, since this was a totally new operation.
It was not only new, but unique, in that we were charged with the total law enforcement responsibility ranging from traffic control to homicide investigation, over a widely dispersed system linked together by high speed rapid transit vehicles operating through numerous political subdivisions.
B.
Technical Services Bureau Commander:
Responsible for setting up the following sections prior to system start up, and overseeing their development and daily operation after the system opened.
In this capacity, I was responsible for 21 total personnel.
'I
BRYAN A. DETTMAN Detective Bureau Communications Section Records Section Property and Equipment Control Revenue Protection Section Training All of these sections were developed from the ground up.
All personnel had to be hired and trained.
Procedures and forms were designed.
Agreements were negotiated with 9 judicial districts and 18 law enforcement agencies with whom detailed operating intezfaces had to be established.
Equipment was ordered and installed, including teletype and computer terminals, a complex radio system, patrol
- vehicles, armored trucks for our revenue protection section,
- weapons, uniforms, etc.
C.
Personnel:
My initial task upon employment was to design and implement a hiring procedure which would enable us to staff our total compliment on a precise time table to correspond with various system segment openings.
I developed a pzocess which included community representation in the oral boa& segment of the procedure which resulted in a police force whose racial and ethnic make up compared favorably with the Bay Area as a whole.
Additionally, these officers averaged 7 years of police experience and 2 years of college.
D.
Special Projects Coordinator:
Responsible for Planning and Research section and the establishment of a uniform traffic and pazking pxogram for the 20,000+ parking stalls and miles of access and circulation roads owned and controlled by the District and defined as streets under Califoznia Vehicle Code.
I was further involved in planning future programs and in wziting and actively seeking new legislation at the state capitol.
In this capacity, I conferred with state legislators and their staffs.
I also maintained our depaz'tmental 1iaison with the Federal Law Enforcement Assistance Administration in the area of grants.
III.
3.974 - Bechtel Cor oration, 50 Beale
.:.St.,
San Francisco, CA 94119 (This job was performed while on a leave of absence from BART)
I was retained by Bechtel on a contractual basis for one month in a consulting capacity to examine a security program being implemented by Bechtel at the Honolulu International Airport under a contzact with the State of Hawaii.
My task was to evaluate the design of the
- program, assess the progress of both its construction and implementation, and determine whether it would bring the airport into compliance with Federal Aviation Regulations dealing with airport and aircraft security.
BRYAN A.
DETTMAN VI.
1964 - 1971 Walnut Creek Police De artment 1649 N. Broadway Walnut Creek, CA 94596 (Walnut Creek is a suburban community in the Bay Area with a population of approximately 50,000 people)
I started out as a patrolman at the age of 21.
Three years later, I was promoted to Detective and worked the following areas over the next 4 years:
burglary, auto theft, juvenile, robbery and crimes against persons.
I was promoted to the rank of Sergeant in 1969 and assumed the position of Director of the Investigative Bureau that same year.
In that capacity, I supervised 7 Detectives.
'EDUCATION M.A.
Public Administration - Golden Gate University, San Francisco, CA B.A.
Police Science and Administration - Sacramento State University, Sacramento, CA PROFESSIONAL CERTIFICATION State of California Commission on Peace Officer Standards and Training (POST) 1.
Advanced Officer Certificate 2.
Supervisory Certificate 3.
Middle Management Certificate B.
State of California Community Colleges Lifetime Instructor Credential (Credential No. 554-62>>1686-001)
C.
State of California, Bureau of Consumer Affairs Certified Instructor:
1.
Laws of Arrest 2.
Firearms D.
National Rifle Association (NRA) Police Firearms Instructor Certification CLEARANCE United States Government "L" Clearance (Nuclear Regulatory Commission)
f I