ML16341C650
| ML16341C650 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/25/1980 |
| From: | GILBERT/COMMONWEALTH, INC. (FORMERLY GILBERT ASSOCIAT |
| To: | |
| Shared Package | |
| ML16341C651 | List: |
| References | |
| NUDOCS 8004090484 | |
| Download: ML16341C650 (4) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION lpga(
COMMISSIONERS:
John. F. Ahearne, Chairman Victor Gilinsky Richard T.
Kennedy Joseph M. Mendrie Peter A. Bradford C/
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In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2)
Docket Nos.
- 0. L.
50-323
. L.
ORDER 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.
'I II Joint Intervenors have suggested two grounds for disqualification:
(1) Dr.
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 h
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).
He 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.
He 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 permit proceeding, Dr.
Buck noted that those rulings are "ancient history" and'that five other members of the Licensing Board and Appeal Board 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 /PA<<
-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.