ML20045E207
Text
UNITED STATES J,
NUCt. EAR REGULATORY COMMISSION
"-^~8-"
February 1, 1980 ADJUDICATORY ITEM I
COMMISSIONER ACTION To:
The Commissioners From:
Martin G. Malsch, Deputy General Counsel James A.
Fitzgerald, Assistant General Counsel
Subject:
Request that the Commission institute proceed-ings to determine whether Commissioners Kennedy and Hendrie should be disqualified from further l
participation in the Diablo Canyon operating license proceeding Discussion On October 24 and 26,1979, the Joint Intervenors in the Diablo Canyon operating license proceeding ;!
filed motions with the Commission requesting that i Commissioners Kennedy and Hendrie disqualify j
themselves from the Diablo Canyon operating j
license proceeding.
If they elected not to dis-qualify themselves the Joint Intervenors requestec:
the Commission to institute a proceeding, complete 1 with the rights of discovery and cross-examinatior1 to determine whether Coc:missionerA ennedy and.
K Hendrie should_be: disqualified.-
we describe.the background _ i_ JIn.- this memorande!
(_1~
~
'ahalyze the legal considera->,
tions.
__ and outli e i
recommended procedures for resolving the matter, i
Background
On October 19, 1979 Commissioner Hendrie met with the Chairman of the Board, the President, and an
, employee of the Pacific Gas and Electric Company (PG&E), the Diablo Canyon applicant.
Also present:
were Leonard Bickwit, Jr. and Donald Hassell.
Following that meeting the PG&E officials met with Commissioner Kennedy.
Shortly thereaf ter, Commis-1 sioner Hendrie prepared a memorandum 1_/ stating i
1/
j Memorandum from Joseph M. Hendrie to the Public Document Room and parties to Diablo Canyon licensing proceeding (October 1979).
Inform 23 ir, in rxcrd wa; deleted ACT:
in a::cr6:: z;th the Fren'om of Information othschild, OGC kt, exen;!,:r.s _
a\\ Q F01A _ 9 2 N A.
(f'J q
9307010253 930317 PDR FOIA GILINSK92-436 PDR
The Commissioners 2
Y that at the time of the meeting neither he nor the General Counsel believed that the conversations we-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."
However, Commissioner Hendrie noted that after the meeting the General Counsel researched the matter and "came to a different conclusion which I share."
Commissioner Hendrie concluded, "to resolve any doubts that exist, the General Counsel and I agree that the communications in question should be treated as ex parte communica-tions."
Thereafter, in accordance with the ex parte provi-sions of 10 CFR 2.780(c), Coamissioners Kennedy and Hendrie prepared the enclosed written summarie:
of the meetings which were placed in the Commis-sion's Public Document Room and served upon the parties to the Diablo Canyon proceeding.
These sum = aries indicate that PG&E had requested the meetings to convey PG&E's concerns regarding the procedures and time schedule the Commission had adopted to consider TMI related issues.
According to these accounts, the PG&E officials advocated that the NRC avoid any procedural discrimination against the processing of.the Diablo Canyon _
application.
'PG&E also expressed concern -that -NRC staff personnel previously assigned to the review of the Diablo Canyon application had been re-assigned to other duties, delaying the staf f 's consideration of its application. 2/
On October 24 and 26, the Joint Intervenors filed their motions with the Commission.
Petitioners asserted that these private, off-the-record meet-ings raised serious questions regarding the qualification of Commissioners Kennedy and Hendrie to participate further in the Diablo Canyon pro-ceeding.
Petitioners argued that the meetings
"(a]t best demonstrate an insensitivity to the troublesome issues raised in this case.
At worst (they are) evidence of a bias in favor of PG&E."
2/
Af ter the meeting Commissioner Hendrie called Edson Case
~
and conveyed PG&E's concerns.
See the October 24 Hendrie memorandum.
Y
The Commissioners 3-L I
The NRC staff and PG&E' filed-responses in i
opposition to the' Joint Intervenors' request.. Both r
Fc argued that by placing summaries of the meetings in the Commission's Public Document Room and.
serving it upon'the parties, all statutory and regulatory requirements respecting ex parte communications had been complied wiEi.
They also argued that the Commission should _ summarily dismise the Intervenors'. motion to institute. proceedings because Joint Intervenors'had failed to establish a prima facie case of personal bias.
The Joint Intervenors replied to these responses arguing that "the public deserves the highest degree of confidence in the fairness of the NRC decision-makers.
. The ex parte communications..
violate the requirement that proceedings not onlyJ be fair, but appear to be fair." -They argued.
that at a minimum the memoranda prepared by the Cocmission establish a prima facie case that the due process recuirement has been violated and are-sufficient evic ence to require the. Commission to institute the requested proceedings.
W l
"gre believe that i
t 3/
r 4
A f
1
~
The Commissioners 10 r
Recommendation I
/
$)
e Martin G. Malsch Deputy General Counsel k
M James A. Fitzgerald i' Assistant General Counsel
Enclosures:
1.
Summary of judicial decisions on disqualification 2.
Draft order 3.
Kennedy and Hendrie memoranda Comissioners' coments or consent should be provided directly to the Office of the Secretary by c.o.b. Tuesday, February 19, 1980.
Comission Staff Office coments, if any, should be submitted to the Comissioners NLT February 11, 1980, with an infomation copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and coment, the l Comissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION Comissioners Comission Staff Offices Secretariat
W
+
)
9 h
e h
ATTACHMENT 1 1
e V
- I G
h v
4
a 4
asJ M
_e 9
I q
4 ATTACHMENT 2 e
O 9
n--,.
t>L san.%
l
' )
4 l
1 i
. l A
l ATTACHMENT 3 i
1 1
1
. w w,
4
~ =
- m e
.a 4
s 1
i
)
4 l
l o
4 4
. 1 I
e 1
-l s
7i N UC L E A R R E G U L A T G E Y LC O.Y..V.!S:: V.
I
. C y/ i WASHINGTON. 0 C. 2C115
)
\\ :U.. i s' i v'
October 19, 1979 s
~
- e,e*
C F F IC E C, F T '- f C oW.H SSio NIR MEMOR; CUM OF COT!ERSAT10tl On Friday, October 19, I net in my office with Frederick Mielke, Chairman of the Scard cf Pacific Gas & Electric (PGSE), Bart Shackelford, President PGOE, and Gene Blanc also of PGLE.
They had called my office earlier in the day and requested the cpportunity to introduce to re Mr. Mielke, PG&E's new Board Chairman.
Af ter a few minutes of introductions and exchange of pleasantries, Mr. Mielke indica:ec that there were sone espects of the Comission's approach to licensir.c in :he afterma z of Inree Mile :sland inat ne would like to cisc ss. ~ ! tcic Mr. Mielke that while I would be happy to discuss generally with him tha licensing process and how it right be changing f ollowir; TMI, it would be inappropriate f or te to ciscuss issues as they affact any particular proceeding.
fir. Mielke indicated that he unders: cod but that there were some generic natters which he would like te discuss.
He went on to indicate that he was concerned that nix licensing precedures, whatever they night be, would significantly delay proceecings alreacy underway.
Mr. Mielke noted that since TMI the DC staff cersonnel who had previously been working on specific cases hac been moved cc other duties thus deiaying the staff's consid-eration of those cases such as Diablo Canyon.
He noted further that with res:ect to the Diablo Canyon proceeding that he was concerned that it was not receiving the same treatrcent as other proceedings.
He indicated, as an exa.rple, that the ACP.5 has not yet received answers from the staff to its specific questicns on Diabic Canyon.
Mr. Mielke stresse: that PGLE felt that it had.cc plished everything asked of it by ine staff and that the Licensing Soard had already reached a f avernie (to FGLE) ccnclusion.
j 1 toic ".r. Mielke that 1, too, at :cncerned that the ::RC and its staff avoid any unnecessary delay in licensing proceedings.
While sone changes and celays in licensing proceedings folicwing TMi s.e e clearly inevitable, it is ry intent that the Ccmmission look carefully at the possible impacts these changes will have on the licensing process as a whole.
As for concerns that the IP.C Staff's processing of individual cases had been hampered following TMI, I assured Mr. Mielke that I believed the staff had returned to such work and that, as far as I knew, all proceedings were being treated ecually.
Finally, I indicated that whila I was under the impression that the Board had reached or was near a conclusion in Diablo Canyon, I could review the case cnly when the Board's decision and the record was brought before the Comission.
u 1
- 2 Mr. Mielke, Mr. Shackelford and Mr. Blanc said that they appreciated.
the opportunity to meet me,.and I' indicated that I was pleased to' have the opportunity to meet Mr. Mielke.
R. T. Kennedy Notes of October 19, transcribed,. reviewed by, and approved by Com.issioner i
Kennedy on October 26.
~
~..lA y -
./
/
I
- 8
- =
4 9
a.
.g g
l'
[
P 4
tiUCLE AH HiUULATOhY CUMimM10N g, ) ^e ff[ j
.J/
g W ASHINGTON, D. C. 00565 3
, n WY !
N YCR /
October 24, 1979 m.*
CH AI R M A N M MORANDUM FOR:
Public Document, Room and Pa rties to Diablo Canyon Licensing Proc.eeding
\\
t FRD*:
JosephM.Hendrj
\\M.l t
s
SUBJECT:
MEE' TING WITH PACIFIC GAS AND ELEC~RIC COMPANY OFFICIALS CONCERNING REPORTING STATUS ON GENERIC MATTERS RELATED TO LICENSING -- DIABLO CANYON ine attached " Notes to Files" and this memorandum have been prepared pursuant to section 557(d)(1)(C) of the A. ministrative Procecure Act and 10 CFR 6 2.780(c).
Tne documents relate to a meeting held on 0:tober 19,1979 at mich, in eccition to nyself, the fc110 wing we e present:
Frederick Mielke, Chair.an of the Board, Pacific Gas and Electric Co.pany (PG&E); Bart Shackelferd, President, P3&E; Gene Blanc, FG&E employee; Donald Hassell, legal Assistant to the Chairnan of the NRC; Leonard Bickwit, Jr., General Counsel of the NRC.
Tne meetine was reouested by the company to discuss the sta:Us of the Diablo Canyon licensing proceeding and generic matters related to that proceeding.
At tne time of the meetino neither the General Counsei nor I believed tnet the discussion was " relevant to the merits of the proceecing," as stated in 5 U.S.C.
{ 557(d), because we did not discuss the facts in the case, and the general thrust of the discussion involved generic ; issues. ' However,7fter the meeting the General Counsel researched the matter and, on balance, has come to a dif-ferent conclusion which I share.
The tern
- relevant to the merits of the pro-ceedinc," in the words of both the Senate and House Ocmittees charged with craf tine this section, was "intenced to be construed b-cadly and to include more than tne ;nrase ' fact in issue' currently used" in 5 U.S.C.
9 55 (d).
Fu rth e r-more, botn comittees concluced that "[ijn doubtful cases the agency official should treat the comunication as ex parte so as to p-ctect the integrity of the cecisionmakinc process. " Consecuently, to resolve any coubts that exist, the General Counsel anc I acree that the communications ir, cuestion should be treated as g oarte communications.
In accercance with our procedures, we are notifying tne parties to the pro-ceeding of this conclusion and are sending them a copy of these cocuments, which will also be filed in our Public Document Room.
Attachments:
1.
Note,10/23/79, Hassell to Files 2.
Note,10/24/79, Hend rie to Files
[.kA',4 j f4UCLE AR REGULATORY COf.'.t.ilSSIOf,
)
"o E DG.' # !
W A.5HIN G TON. D.C. 20555 j
October 23, 1979 omcc onut C H AIR MAN NOTE T0' FILES O
FROM:
Donald F. Hassell l
Legal Assistant
/
SUBJECT:
MEETING BETWEEN CHA MAN HENDRIE AND OFFICIALS OF PACIFIC GAS a ELECTRIC (PG&E) CONCERNING REPORTING STATUS ON GENERIC MATTERS RELATED TO LICENSING -- DIABLO CANYON l
On Friday, October 19,1979 at 10:50 AM Chairman Hend-ie met with officials fr0n PG&E, nanely, Frederick tiielke, Chair.an cf tne Sca-d, ;GLE, Eart Shackelford, President, PGLE, and Gene Blanc, a representa tive cf PGEE.
Leonarc Bickwit anc myself were also presens.
)
"r. Frecerick Mielke opened the meetinc by indicatinc that the meeting's purpose was to convey PGLE's concerns about the procedural anc timing aspects of addressing T!11 issues, anc recent NRC staffine changes.
Specifically, he noted that it acpeared that the TMI issues shoulc be addressed generically for all PWR's including Westinghouse plants.
He felt that NRC shouic avoid any discrim-ination proceourally against Diablo Canyon in the treatment of Tlil issues.
In short he expressed the concern that Diabic Canyon not be sincled out in this area.
With regard to staffing fir. Mielke noted that certain organizational changes in NRR had resulted in staff members who were faniliar with Diablo Canyon being disban'ded and assigned to work with the Lessons Learned group.
Afte" Mr. Mielke completec his opening remarks, Chair an Hencrie pointed out tnat Diaolo Canyon is in adjudicaticn anc attention had to be given to ex parte ccnsicerations.
Cnaiman Hencrie expressed his belief however, tnat he could d'scuss procecural anc generic matters.
Tne Cnai man indicated that he was concerned with how NRC handles TMI issues.
He set fcrth certain ascects of j
the Conmissien's policy statement on interim licensing.
The Chairman noted tnat staff's short-term TMI reconnendations have gone out and that the long-terr TMI recommencations were about to cona out.
Noting that the Xemeny Comissior report was about to come out, the Chairman indicated that he could not predict how NRC will go forward af ter completing its analysis cf that report.
fir. Mielke reiterated his feeling that TMI issues be treated generically and that Diablo Canyon should not be singled out.
Speaking again to.the staffing cuestion Mr. Mielke believed that Jim Knight along with tne 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.
Chairman Hendrie indicated that he saw no reason to treat Diablo Canyon differently as to ceneric TMI issues.
He also indicated that where TMI issues are clear cut and the Comission can mandate a position, that he thoucht such matters would be given generic treatment.
However, he said he thought that some Tlil issues 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 shouldn't be taken lightly.
The Chairman responded by guessing that petitions to reopen mign: be filed for some plants where there are proceedings cending 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 acvice.
Moreover, the Chairman expressed the feeling that, based on conversations with the investigators during his deposition, the Presidential Commission sees a lot of difference be:-een shutting down a plant in operation as distinguished from allowing a plant to start operating for the first tire.
Gene Blanc noted that PG&E does all of its own engineering and their engineers had submitted a lessons learned report of their own.
Furthermore, he indicated that PG&E had been very responsive in that PG&E had submitted its response to the NRC's staff's lessons learned, and also filed a response to ACRS questions.
Tne Chairman said he felt reasonably certair. that :ne same staff experts would go back en the Diacio Canyon case to resoc,c to : RS cues: ions, although he notec na: mign: not be :ne case for Mr.
r' mig n: 1r. vie-cf nis c:her cu ies.
- Finally, he indicatec that if Diatic Car.ycn had been very resocr.sive to staff, this was gooc fcr Nk; since it creates tne maximum ecportunity for resolution of custancing issues.
Mr. Mielke indicated tnat the pcwer su: ply in California had become critical this cas summer because twice :ney came cicse to tu nin; c " some power.
- Finally, he pointed out :na; one of the biggest slow: owns r,ay oe :ne ACR$.
At tnis poin:
tne Chairman stood up and endec :ne meeting a: 11:25 A".
cc:
PDR Docket No. 50-275 Docket No. 50-323
~
I e
/j mm'e, UNITED STATES
,[ '
- c. #j NUCLE AR REGULATORY COMMISSION
'- r W ASHING T ON, D. C. 20E65
- LMLCF !
e
/
October 24, 1979
'+
CH AIR MAN NOTE TO:
Files I
\\
k FROM:
Joseph M. Hen
'N
SUBJECT:
ACTIONS SUBSEQUEHT-40 MEETING WITH OFFICIALS OF PACIFIC GAS &
ELECTRIC ON OCTOBER 19, 1979 Tnis r ete is intended to com;:lete the recore on the meeting with PG&E officials on October 19, 1979, anc nty subsecuent actions.
A summary of Inat meeting has been prepared at my request by Mr. Donald F. Hassell, my Legal Assistant.
Late in the af ternoon of October 19th, I called the Director /NRR.
Mr.
Denton was out and I talked to Mr. Edson Case, Deputy Director /NRR.
1 inquired as to the status of the Diablo Canyon case.
I told Mr. Case of the PG&E concern inat Diabio Canyon might be si..gled out for some sort of unique pro:edural treatment with recard to Three Mile Island-related issues, and that the NRC staff members most f amiliar with Diablo Canyon mign: not be available for further work on the case.
Mr. Case said tisat Diablo Canyon was being treated from a procedural standpoint in the same way as other well-advanced operating license ao?lications in which tnere were ongoing proceedings before a Licensing Ecard, and Inat staff members fa-iliar witn 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 ACES anc that further discussions were planned with ACRS on :ne project.
I told Mr. Case I thought the staff should continue its work on Diabic Canyon just as it was doing.
I suggested the staff should try to be well-prepared for the coming ACRS neeting, since my own experience on the ACES indicatec that a high quality staff cresentation to the ACRS woulo best serve the objective of reaching an early decision on the application.
i On Monday, October 22nd, the General Counsel informed me of his concerns about the nature of the meeting with PG&E.
.l 1