ML16340A905
| ML16340A905 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 04/10/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-583, NUDOCS 8004210168 | |
| Download: ML16340A905 (12) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Natter 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-583 is extended until April 15, 1980.
It is so ORDERED.
For the Commissi /
SAMUEL J.
C Secretary of the ommission
.Dated at Washington, D.C.
yR this jO day of 1980.
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Office of the Secretary Dociretfrrg 8 Service Brarlc 6'004 210lbs
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COMMISSIONERS:
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION rq C/
John. F. Ahearne, Chairman Victor Gilinsky Richard T.
Kennedy Joseph M. Hendrie Peter A. Bradford
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In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1
and 2)
Docket Nos.
50-275 O.L.
50-323 O.L.
OROER CLI-80-11 On March 13, 1980, Joint Intervenors filed a motion requesting the Commis-sion to disqualify Dr. John H.'Buck from sitting on the Atomic Safety and Licensing Appeal Board assigned to hear the appeal on the seismic issues, in the Diablo Canyon proceeding.
In the alternative, Joint Intervenors requested that the Commission I
refer the matter to Dr.
Buck for an initial ruling.
On March 21,
- 1980, the Commis-sion issued an order directing Dr.
Buck to rule on the motion.
The order stated that should Dr.
Buck decide to remain in the proceeding, his decision will be subject to Commission review pursuant to 10 CFR 2.786.
CLI-80-8, 11 NRC On March 24,
- 1980, Dr.
Buck issued a memorandum in which he concluded that there was no legal requirement that he disqualify himself, and that he did not intend to do so.
On March 28, 1980, Joint Intervenors filed a petition requesting the Commission to review that decision.
The Commission has decided to deny the petition.
Joint Intervenors have suggested two grounds for disqualification:.
(1) Dr.
t Buck's participation would creat'e an appearance of bias because in two previous
licensing proceedings he did not accept the views of one of the Joint Intervenors'xpert witnesses, Dr. Mihailo Trifunac; and (2) that an appearance of bias is created by his participation in a 1971 Appeal Board decision which Joint Inter-venors assert erroneously affirmed an Atomic Safety and Licensing Board decision granting a construction permit for Diablo Canyon Unit 2.
Joint Intervenors assert that Dr.
Buck at that time failed to adequately consider their seismic concerns.
In response, Dr.
Buck, stated that a judge is not required to disqualify himself from a proceeding just because he has had prior involvement with similar issues or parties, citing FTC v.
Cement Institute 333 U.S.
- 683, 703 (1947).
Ke further noted that in each of two earlier proceedings in which he did not accept Dr. Trifunac s judgment he was joined in his opinion by another Appeal Board member.
Ke explained that he is not biased against Dr. Trifunac, but that "rea-sonable minds can and do differ on any given issue".
With respect to Joint Inter-venors'harges that he made erroneous rulings in the Diablo Canyon construction I
permit proceeding, Dr.
Buck noted that those rulings are "ancient history" and that five other members of the Licensing Board and Appeal Hoard also decided to approve construction of the Diablo Canyon facility.
The Commission has reviewed the matter and determined that a case has not been established for disqualification.
Dr.
Buck has not previously ruled on the specific factual questions before the Appeal
- Board, and we have no evidence that he is partial or has a closed mind.
The mere fact that he has not accepted Dr. Trifunac's views in the past does not force the Commission to conclude that Dr.
Buck will be unable to objectively consider Dr. Trifunac's views in this proceeding.
The Commission has never taken the position that because a member of the Appeal Board participated as an adjudicator in a construction permit proceeding for
a particular facility that the member is precluded from sitting on the Board that will review the operating license application for that same facility.
We find no special circumstances here which would cause the Commission to change that policy.
We conclude that based on the information before us that Dr.
Buck is not
- biased, his participation does not present an appearance of bias, and that his prior involvement with Diablo Canyon at the construction permit stage does not require disqualification.
The petition for review is, therefore, denied.
Commissioner Bradford would have granted the petition for review.
It is so ORDERED.
For the Commission SAMUEL J.
LK Secretary of t e Commission Dated at Washington, D.C.
this day of 4 P+f 1-1980.
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."
Commissioner Gilinsky was not present at the meeting at which this Order was approved.
Had he been present he would have voted with the majority.
Accordingly, the formal vote of the Com-mission is 3-1'.
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY CO>&fZSSION (Diablo Canyon Nuclear Power Plant, Units 1 and 2)
In the Hatter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY )
)
)
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Docket No. (s) 50-275 50-323
~ CERTIFICATE OF SERVICE I hereby certify 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.
Dated at Hashington, D.C. th's legd Office of t e Secretary of the Comm'ion
UNITM STATES OF ~CHICA NUCLZ="Z REGULATORY CC!"'.ISSION ln the Matter of PACIFIC GAS 4'D ELECTRIC COMPANY
( Diablo Canyon, Units 1 and 2)
Docket No.(s) 50-323 SERVICE LIST Elizabeth S.
Bowers', Esq.,
Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 PhXlip 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
..ichard S.
- Salzman, Esq.,
Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory'ommission 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.
20555<
Janice E. Kerr, Esq.
California Public Utilities Comnission 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 Hrs. Elizabeth Apfelberg c/o Hs.
Nancy Culver 182 Luneta Drive San Luis Obispo, California Yale I. Jones, Esq.
100 Van Ness Avenue, 19th Floor San Francisco, California 94102 93401
Board and arties continued 50-275,
-323 Brent Rushforth, Esq.
Stephen M. Kristoyich, Esq.
Center for Law in the Public Xnterest 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 O. Schuyler Nuclear Prospects 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 1
Mr. J. Anthony Klein Governor's Office State Capitol Sacramento, CM.ifornia'5814 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