ML16341B244
| ML16341B244 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 11/13/1979 |
| From: | Davis L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML16340A675 | List: |
| References | |
| NUDOCS 7912050161 | |
| Download: ML16341B244 (22) | |
Text
In the Matter of UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION jq. Etude ll/13/7o Doc~pp
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DI!ice Oi the Secr~ry D
DCCketigg $ $gntiL.>
Branch 6'ACIFIC GAS AND ELECTRIC COMPANY I
(Diablo Canyon Nuclear Power Plant Unit Nos.
1 and 2)
Docket Nos.
0-275 50- 23 O.L.
NRC STAFF
RESPONSE
TO JOINT INTERVENORS'OTIOshi TO DISQUALIFY COMMISSIONERS HENDRIE AND KENNEDY B~kd On Friday, October 19,
- 1979, Chairman Joseph Hendrie met with Frederick Mielke, s
Chairman of the Board of Pacific Gas and Electric Company (Applicant or PGIEE) and two other officers of that company.
Later in the day, Commissioner Richard T. Kennedy met with the same Pacific Gas and Electric Company officials.
Following these meetings, Chairman Hendrie prepared a memorandum stating that at the time of the meeting neither he nor the General Counsel believed that the conversations with Mr. Mielke and other officials of his company were of an ex parte nature in that "we did not discuss the facts of the [Diablo Canyon]
- case, and the general thrust of the discussion involved generic issues."/
k
- However, he observed, after the meeting the General Counsel researched the matter further and "came to a different conclusion which i share.".
Ibid.
Thus, the Chairman concluded, "to resolve any doubts that exist, the General Counsel and Memorandum from Joseph M. Hendrie to the Public Document Room and 1/
parties to Diablo Canyon licensing proceeding (October 24, 1979).
l
I agree that the comaunications in question should be treated as ex ~arte communi cations."
Ibid.
Thereafter, in accordance with the ex garte communications provisions of 10 C.F.R. 52.780(c),
Chairman Hendrie and Commissioner Kennedy prepared written
=summaries of their meetings and directed that such summaries be provided to all of the parties to the Diablo Canyon proceeding and placed in the Public Document Room.
Enclosures 1 and 2.
The contents of these documents indicate that I
the Applicant desired and to some extent did discuss with the Chairman and Commissioner Kennedy what it termed the "generic issues" of delay in the licensing of Diablo Canyon and the possibility of further licensing delays due to additional hearings and NRC staffing changes.
On October 24 and October 26,
- 1979, on the basis of the above-described
- meetings, the Joint Intervenors in this case filed the instant "Requests to Institute Proceedings on the gualification of Chairman Hendrie and Commissioner Kennedy to Consider the Operating License Application for the Diablo Canyon Nuclear Power Plant."
(Hereinafter cited as Motions to Disqualify).
Those Motions to Disqualify requested that the Chairman and Commissioner Kennedy recuse themselves and if they did not, asked that the Commission institute a
proceeding "complete with the rights of discovery and cross-examination" to determine whether the Chairman and Commissioner Kennedy should be dis-qualified from any further participation in this case.
2~
Chairman Hendrie's sumoary was prepared by his legal assistant, Donald F.
Hassell.
Memorandum from Donald F. Hassell to Files (October 23, 1979).
Chairman Hendrie also prepared a memorandum of a subsequent telephone conversation with Mr. Edson
- Case, Deputy Director of the Office of Nuclear Reactor Regulation regarding his meeting that day.
Memorandum from Joseph M. Hendrie to Files (October 24, 1979).
For the reasons listed below, the NRC Staff believes that the Motions to Dis-qualify Chairman Hendrie and Commissioner Kennedy should not be granted for failure of the Intervenors to sustain their burden of showing bias or prejudgment.
II.
Discussion A.
NRC Regulations Under the provisions of the applicable NRC regulation, 10 C.F.R. 52.780, no "party to a proceeding for the issuance
. of a license or permit or any officer, employee, representative or any other person directly or indirectly acting on behalf thereof shall submit off the record to the Commissioners any evidence, explanation, analysis or advice, whether written or oral, regard-ing any substantive matter at issue in a proceeding on the record then pending before the NRC
- However, notwithstanding this proscription, NRC regulations-]
and the case law-recognize that there may nonetheless be occasions--throughmistake, inadvertence, or otherwise when such ex parte communications will occur.
Thus, to insure fairness to the parties in the event of such an occurrence, the regulations and the law have set forth a pro-cedure for treating such circumstance.
Specifically, the NRC regulations express]y provide that "[t]he recipient of [an ex parte] oral communication
~ will make a fair, written suranary of such communication and deliver such 10 C.F.R. 52.780(c).
Home Box Office Inc. v.
- FCC, 567 F.2d 9, 57 (D.C. Cir. 1977).
summary to the NRC Public Document Room and serve copies thereof upon the com-municator and the parties to the proceeding involved."
And similarly, the Court wrote in Home Box Office, inc. v.
- FCC,
~su ra, 567 F.2d at 57, that "[i]fex 2arte contacts nonetheless occur w,e think that any written document or a sumary of any oral communication must be placed in the public file established for [the case]
immediately after the comnunication is received so that interested parties may comment thereon."
It is the purpose of the rule, as the Court observed, to permit all parties a full and complete opportunity to coament on the subject of the ex ~arte comsunication.
- See, Ro ers Radio Communication Services v.
- FCC, 593 F.2d 1225 (D.C. Cir. 1978)
In the present proceeding Chairman Hendrie and Commissioner Kennedy have pre-pared a
summary of their oral communications with PGKE and have provided copies of the summary to the public and to the parties to the Diablo Canyon proceeding.
And each party to the proceeding will--prior to any decisional action by the Commission--be afforded an opportunity to comment fully on the communications in their response to the Applicant's October 26, 1979 motion which is presently pending before the Comission.
Therefore, having taken this action, Chairman Hendrie and Commissioner Kennedy have complied in all respects with their legal responsibilities to insure that the rights of the parties to this proceeding are fully protected.
Under In their October 26, 1979 motion the Applicant requested that the Comnis-sion direct the Licensing Board assigned to this proceeding to (i) issue a partial initial decision covering the remaining issues ripe for decision, and (ii) authorize the Director, Office of Nuclear Reactor Regulation, to issue an operating license for Unit 1 at the Diablo Canyon site.
the law and under NRC regulations no further action is required by Comnissioners Hendrie and Kennedy and for this reason, no further action need be taken by this Commission.
Yet notwithstanding the action taken by Chairman Hendrie and Commissioner
- Kennedy, the Joint Intervenors nonetheless contend that the Commissioners con-duct in holding an "off-the-record" meeting with Mr. Mielke and other officials of his company demonstrates a bias and a prejudgment of the issues in the Diablo Canyon case sufficient to require that they recuse themselves or be disqualified from further participation in the proceeding.
We cannot agree.
B.
Standard for Recusal or Dis uglification The law has long recognized that the functions of a presiding officer in an administrative proceeding must 'be conducted in an impartial manner and that a
presiding officer may be disqualified for personal bias or other disqualifica-tion.
Consumers Power Co.
(Midland Plant, Units 1
and 2), ALAB-101, 6 AEC 60, 63 (1973).
In accordance with this requirement, NRC regulations expressly pro-vide that a presiding officer may withdraw from a proceeding if he "deems himself disqualified" (10 C.F.R. 52.704(b)),
or that "[i]fa party deems a
presiding officer.
. to be disqualified, he may move that the presiding officer
. disqualify himself."
10 C.F.R. 52.704(c). If such a motion to 6/
disqualify is filed, "[t]he motion shall be supported by affidavits setting forth the alleged grounds for disqualification."
Ibid.
6/
While the term "presiding officer" as used in the NRC regulations tradi-tionally refers to the Chairman of the Atomic Safety and Licensing Board, we believe, given the posture of the Joint Intervenor's motion, that the term and the applicable provisions of the regulations are appropriately applied to the present proceeding.
Cf. the Commission decision in ~Lon Island Li htin Co.
(Shoreham Nuclear Power Station, Unit 1),
4 AEC 441, 4
0
If the presiding officer does not disqualify himself or grant the motion for disqualification, the motion shall be referred to the Cormission which will determine the sufficiency of the grounds alleged.
Ibid.
However, before taking any action on the merits of the matters pending before it, the Commission must determine whether or not the affidavit is timely, sufficient and made in good faith, accepting the facts therein stated as true. If the Commission makes an affirmative finding, it must then take evidence that may be proffered on the merits of such charges.
- See, Lon Beach Federal Savin s and Loan Association v. Federal Home Loan Bank Board, 189 F.Supp.
589 (S.D. Cal. 1960),
rev'd on other
- rounds, 295 F.2d 403 (9th Cir. 1961).
The relevant grounds for disqualification applicable in this case are whether there is substantial personal bias or prejudgment or the appearance thereof on the part of the adjudicator.
Consumers Power Co.
(Midland Plant, Units 1
and 2), ALAB-101, 6'AEC 60, 64 (1973):
The test for disqualification has been stated as being whether "a disinterested observer may conclude that [the Commissioners have) in some measure adjudged the facts as well as the law of a particular case in advance of hearing it." Gilli an, Will 5 Co. v.
- SEC, 267 F.2d 461, 469 (2d. Cir. 1958), cert. denied, 361 U.S.
896 (1959).
Courts reviewing administrative disqualifications are required to ascertain whether there has been a substantial showing of bias.
- See,
~e
, United States v.
O'ourke, 213 F.2d 759, 763 (8th Cir. 1954).
- See, Foster v. Nedina, 170 F. 2d 632 (2d. Cir. 1948).
This standard was followed by the courts in Cinderella Career and Finishin Schools.
Inc. v.
- FTC, 425 F.2d 583, 59 O.C.
9 0 ; Texaco Inc. v.
- FTC, 6 F.
54, 760 (D.C. Cir. 1964).
C.
Affidavit Re uirement The Staff notes that the instant Notion is not, as required by 10 C.F.R. 52.704, accompanied by a formal affidavit setting forth the grounds for disqualification.
In this'egard, the Appeal Board has stated "[a] party leveling a charge as serious as that of bias against [in that case, a licensing board or its members]
has a manifest obligation to be most particular in establishing the foundation for the charge, as well as adhere scrupulously to the affidavit requirement of S
i 2.70'I( il" 1
h
~
i f p bi i
- d. ~OLi h
~Com an (Beaver Valley Power Station, Units 1 and 2), ALAB-172, 7 AEC 42, 43 n.
2 (January 24, 1974).
For this reason, a person seeking to recuse a member of an administrative tribunal has the burden of proof (see SEC v. Holman 8 Co.,
323 F.2d 284, 286 (D.C, Cir. 1963)), since an administrative judge or adjudica-tor is presumed to be honest and of integrity.
A mere exposure to evidence or the facts of a case is insufficient in and of itself to impugn the fairness of an administrative tribunal.
Uithrow v. Larkin, 421 U.S.
35 (1975).
D.
Bias or Prejud ment Even assuming
~ar uendo that the motions and accompanying brief filed by the Joint Intervenors in this case satisfy the affidavit provisions required by NRC regulations and the case law, the NRC Staff believes that they have not satisfied their burden of showing of substantial bias or prejudgment on the part of either Coranissioner.
The facts alleged in the instant Motions to Disqualify as to the circumstances of the meeting are, as they must be for the purposes of these Motions, undisputed.
The conclusions drawn therefrom,
- however, are not.
While the Intervenors were not notified of the meeting which was held by Chairman Hendrie or the meeting with Commissioner. Kennedy, the matters discussed therein were largely procedural and were promptly and correctly made a part of the public record by the filing of the memos of conversation mentioned above in accordance with the provisions of 10 C.F.R. 52.780(c).
In addition, aside from the bare allegation that Chairman Hendrie's and Commissioner Kennedy's "conduct raises substantial questions regarding [their] qualification to consider the operating license application for OCNPP" (Motion to Disqualify at 2), no facts directly indicating bias or prejudgment have been cited.
- Indeed, the totality of Intervenors'leading is bereft of a showing of how or why either the Chairman or Commissioner Kennedy would, by virtue of their meeting with PGdIE, exhibit substantial bias in favor of the Applicants were the Commission ever to review the Diablo Canyon case.
In that regard, Intervenors'rgument that Chairman Hendrie's subsequent call to Edson
- Case, Deputy Director of Nuclear Reactor Regulation, to find out whether Diablo Canyon was being accorded "special treatment"-
adds nothing to their cause.
As the memorandum of that discussion
- states, the matters discussed were concerned with the procedural review of the Diablo Canyon case by the Staff and the ACRS, and thus were not relevent to the merits of PGSE's application or of the substantive facts in issue in that case.*
10/
Th p
1 th 1
T Ty 1
p h
1 ~Yl1 where the Appeal Board strongly admonished the movants for seeking disqualification 9/
October 5,
9 Supp ement to the Joint Intervenors'equest to Institute Disqualification Proceedings.
Du uesne Li ht Co.
(Beaver Valley Power Station, Units 1
and 2), ALAB-
- 172, 7 AEC 3 (1974).
t
of the Licensing Board upon a showing of "little more than broad and vague assertions that the Licensing Board had manifested bias
~.."
- Here, as in
~BY11, h Ji I
h fi1 hi d
demonstrating proof of prejudgment or bias on the part of Chairman Hendr'ie and Commissioner
- Kennedy, and having failed to do so, their present motion is insufficient as a matter of law and should be denied.
III.
Conclusion For the foregoing reasons, the NRC Staff believes that the Joint Intervenors have failed to satisfy their burden of proof as to bias or prejudgment on the part of Chairman Hendrie and Commissioner Kennedy and that their request to institute a proceeding to disqualify should be denied in all respects.
Respectfully submitted, C
L.
Dow Davis Counsel for NRC Staff Dated at Bethesda, Maryland this 13th day of Nov'ember, 1979
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant Unit Nos.
1 and 2)
Docket Nos.
50-275 O.L.
50-323 O.L.
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF
RESPONSE
TO JOINT INTERVENORS'OTION TO DISQUALIFY COMMISSIONERS HENDRIE AND KENNEDY", dated November 13, 1979, in the above-captioned proceeding, have been served on the following, by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 13th day of November, 1979.
- Dr. Joseph M. Hendrie, Chairman U.S. Nuclear Regulatory Commission Washington, D.
C.
20555
- Dr. Victor Gi linsky U.S. Nuclear Regulatory Commission Washington, D.
C.
20555
- Mr. Richard T. Kennedy U.S. Nuclear Regulatory Commission Washington, D.
C.
20555
- Peter A. Bradford U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- John F. Ahearne U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Richard S.
- Salzman, Esq.,
Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.
C.
20555
- Alan S. Rosenthal, Esq.
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
- Elizabeth S.
- Bowers, Esq.
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.
C.
20555
- Mr. Glenn 0. 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
Mr. Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, California 93401 Philip A. Crane, Jr.,
Esq.
Pacific Gas and Electric Company Room 3127 77 Beale Street San Francisco, California 94106 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara, California 93105 Mrs.
Raye Fleming 1920 Mattie Road Shell Beach, California 93449 Mrs. Sandra Silver 1760 Alisal Street San Luis Obispo, California 93401 Mr. Gordon Silver 1760 Alisal Street San Luis Obispo, Califernia 93401 John R. Phillips, Esq.
Simon Klevansky, Esq.
Margaret Blodgett, Esq.
Center for Law in the Public Interest 10203 Santa Monica Drive Los Angeles, California 90067 Arthur C. Gehr, Esq.
Snell 5 Wilmer 3100 Valley Center Phoenix, Arizona.85073 Paul C. Valentine, Esq.
321 Lytton Avenue Palo Alto, California 94302 Ya1e I. Jones, Esq.
100 Van Ness Avenue 19th Floor San Francisco, California 94102 Janice E. Kerr, Esq.
Lawrence g. Garcia, Esq.
350 McAllister Street San Francisco, California 94102 Mr. James
- 0. Schuyler Nuclear Projects Engineer Pacific Gas and Electric Company 77 Beale Street San Francisco, California 94106 Bruce Norton, Esq.
3216 North 3rd Street Suite 202 Phoenix, Arizona 85102 David S. Fleischaker, Esq.
Suite 709 1735 Eye Street, N.W.
Washington, D.
C.
20006 Richard B. Hubbard MHB Technical Associates 1723 Hami1ton Avenue - Suite K
San Jose, California 95125 John Marrs Managing Editor San Luis Obispo County Telegram-Tribune 1321 Johnson Avenue P.O.
Box 112 San Luis Obispo, California 93406 Andrew Baldwin, Esq.
124 Spear Street San Francisco, California 94105
- Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.
C.
20555
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, 0.
C.
20555
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.
C.
20555
(,'
O'C. - '<'c"~
L.
Dow Davis Counsel for NRC Staff