ML20045E794
| ML20045E794 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 03/19/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-037, SECY-A-80-37, NUDOCS 9307060062 | |
| Download: ML20045E794 (32) | |
Text
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.4 UNITED STATES NUCLEAR REGULATORY COMMISSION March 19,1980 WASHINGTON, D. C. 20555
-SECY-A-80-37 CONSENT CALENDAR ITEM ADJU DICATORY' For:
The Coc=ission From:
Leonard Bickwit, Jr., General Counsel
Subject:
Diablo Canyon -- Motions filed by Joint Intervenors Discussion:
On September 27, 1979, the Licensing Board _ issued a partial initial decision in the Diablo Canyon operating licensing proceeding addressing two of the major issues in that case -- the seismic and-the physical security issues.
In order to expedite consideration of these issues the Appeal Board. established two separ, ate panels to review the Licensing Board-decisions -- one would review seismic issues, the other the physical security issues'.
Because the seismic proceeding primarily involved scientific judgments, on January 4, 1980, Chairma!
Rosenthal designa_ted -a, panel..that: panel is : e.:
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7tcomprised of-two ;aqientists, Dr. Buck and Dr.
~ Johnson, and one lawyer,-Mr.T Salzman.
Oral argu.
ment on the' seismic matters.is scheduled to be cc:
ducted in California on April 3.
On March 13, 1980, the Joint Intervenors filed thi enclosed motion. requesting that the Cocaission intercede in this proceeding and hear the appeal '
on the seismic issues rather than the appeal board.
In the alternative, petitioners requested-that Dr. Buck be disqualified from sitting on thc i Board in this case.
This request was accocpaniet with a second motion requesting the Commission tt:
stay the April 3 oral argument on the seismic issues so that the Cocmission would have adequate:
time to evaluate these requests.
Information in this record was de!eted 6
in accordance with thejfr edom of Information CONTACT:
Act, exemptions Trip Rothschild, OGC F0IA-92-934 4-1465 9307060062 930317
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Reconstitution of the Appeal Board i
Joint Intervenors' request that if' the ' Appeal Board,is permitted to hear the case, Dr. Buck disqualify himself from the proceeding.
They:
claim that Dr. Buck.is biased,: citing the. fact that in two priorfappeal board proceedings,.
Dr. Buck rejected as "too'co6versative"'the-opinions of Dr. Mihailo Trifunac,.a? witness.who-testified at the licensing _ board hearing on. behalf of the-Joint Intervenors.
In addition. Joint-
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Intervenors ' note 'that ' Dr. Buck was on the - appeal' board panel that in~1971 rejected its seismic-concerns and granted the. construction permit;for--
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Diablo Canyon Unit 2.
Finally, Joint Intervenors
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argue that a second scientist is not required on-the appeal panel.
They argue that'Dr. Buck's scientific training is in nuclear-physics:and.
Appeal Board Chairman Rosenthal, who is acquainted-with the seismic -issues, could. adequately perform the review function.
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Recommendation:
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G _,_s(' OP AN p Leonard Bickwit, Jr.
I Ceneral Counsel
Enclosures:
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Draf t ordef
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2.
Hoeions filed.pyu,p, int,Intervenors J
Comissioners' comments or consent chould be provided directly to the Office of the Secreta as soon as possible.
This paper will be scheduled for affirmation an an Open Meeting this week at the earliest practicable date.
DISTRIBUTION Comi ssior.ers Commission Staff Offices Secretariat
i MEMORANDUM REGARDING UHETHER COMMISSIONERS KENNEDY AND HENDRIE MAY PARTICIPATE IN COMMISSION ACTIONS ON JOINT INTERVENORS' MOTION!
In October of 1979, Joint Intervenors requested that Commissioners Kennedy and Hendrie be disqualified from participating in the Diablo Canyon proceeding because of meetings they held with
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Pacific Gas and Electric Company officials.
On March 13, 1980, Commissioners Kennedy and Hendrie issued memoranda to the counsel for the parties stating they were inclined to remain in the proceed-ing, but requested comments before making their final decisions in this catter.
The period for cooment expires on March 31.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFOFI TEE COMMISSION _
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In the Matter of:
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PACIFIC GAS & ELECTRIC
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Docket Nos. 50-275 0.L.
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50-323 0.L.
COMPANY (Diablo Canyon Nuclear
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Power Plant, Units 1 & 2)
)
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l JOINT INTERVENORS' FIQUEST l
FOR THE COMMISSION'S EARLY INTERCESSION OR, IN THE ALTERNATIVT, RECONSTITUTION OF THE APPEAL BOARD i
INTRODUCTION _
The SAN LUIS OBISPO MOTHERS FOR PEACE, SCENIC SHORELINE PRESERVATION CONFERtNCE, INClT ECOLOGY.KCTION2ChDBT SANDRA GORDON SILVER, ELIZAEETH AFTELEERG, JOHN J. FORSTER
(" Joint Intervenors") request the Nuclear Regulatory Com-
)
t mission ("Cc:.missien" or "URC") to intercede and take upcn In itself the hearing of the appeal on the seismic issues.
i the Commis-the alternative, the Joint Intervenors request sion to reconstitute the Atomic Safety and Licensing Appeal Board (" Appeal Board") presently assigned to preside over that appeal.
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This request invokes the Commission's inherent super-1 visory authority to oversee all aspects of the regulatory and licensing process and its " overriding respcnsibility for assuring public health and safety in the operation of ' nuclear In the Matter of Consolidated Edison Co.
power facilities."
of New York, Inc. (Indian Point, Units 1, 2 and 3),.CLI-75-8, Energy and Development Administration NRCI 75/8, 173; U.S.
(Clinch River Breeder Reactor Project), CLI-76-13, NRCI 1/
Moreover, it relies upon the stated
~
76/B, 67, 75-6.
of the Commission to increase its supervision of objectiv-licensing. action by interceding in particular proceedings, 44 Fed.
where warranted.
Modified Adjudicatory Procedure, Reg. 65049 (November 5, 1979).
SUMMARY
OF ARGUMENT Intercession in the Seismic Appeal A.
The Commission must intercede in the seismic 1.
appeal to restore the seriously eroded public confidence that the NRC will resolve the exceptional safety issues to raised by the appeal with objectivity and a commitment
" safety first."
(Midland Units 1 and 2),
1/
See also, Consumers Power Co.Public Service Co. of New CLI-73-38,~RAI-73-12, 1084; (Seabrook Nuclear Power Station, Hampshire, et al.CLI-77-8, 5 NRC 503, 515-517.
Units 1 and 2),
O
. - 4 Intercession by the Commission will not delay 2.
final review of the Applicant's operating license.
The Commission's objective to increase its role in 3.
individual licensing proceedings will be fully effectuated by a determination to intercede in the seismic appeal.
4.
Intercession will provide the Commission with first-hand experience and insight valuable in assessing i
pending and future seismic appeals and formulating the new seismic siting criteria.
B.
Reconstitution of the Appeal Board 1.
Jcint Intervenors are entitled to an impartial Appeal Board.
2.
Dr. Buck's appointment to the Appeal Board vio-lates the appearance of impartiality.
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. :..y THE COMMISSION SHOULD INTERCEDE AND TAKE UPON ITSELT A.
THE HEARING OF THE APPEAL ON THE SEISMIC ISSUES.
The Commission Must Intercede In The Seismic 1.
Appeal to Restore Seriously Eroded Public Confidence that the Exceptional Safety Issues
)
Raised by the Appeal Will Be Resolved Objectively and With a Commitment to Safety First.
The seismic appeal raises safety issues that are 2/
" unique to nuclear power plant design."-
The Appeal Board
-2/
Letter from Dr. Stephen Lawrowski, Cha. man, Advisory Committee on Reactor Safeguards, NRC, to 9r. Joseph M.
Hendrie, Chairman, NRC, (July 14, 1978).
4-acknowledged the extraordinary nature of this case when it wrote
[The seismic debate) is more than a run-Qf-the-mill disagreement among experts.
We have here a nuclear plant designed and largely built on one set of seismic assumptions, an intervening discovery that those assumptions underestimated the magnitude of potential earthquakes, a re-analysis of the plant to take the new estimates into account, and a post hoc conclusion that the plant is essentially satisfactory as is -- but on theoretical bases partly untested and pre-We do not viously unused for these purposes.
have to reach the merits of those findings to conclude that the circumstances surrounding the need to make them are exceptional in every sense of that word._3/
These excepticnal circumstances require that the review of the seismic appeal be conducted in a manner that leaves no doubt as to the Commission's objectivity and concern for safety.
However, the improprieties that have characterized this licensing proceedingiendithe'. disturbing conclusions drawn by recent inquiries into the'-Thrse Mile
~
Island accident have created grave doubt in the public that the Ccmmission is capable of assuring an acceptable level of safety fer nuclear power plants.
The serious erosion in public confidence resulting frem these two developments, described more fully below, cannot be halted, and some 3/
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALA3-519, 9 NRC 42,46.
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i 5-measure of confidence restored, unless the ccmmission be-comes directly and personally involved in the seismic appeal now.
i The Licensing Proceeding Over the course of the Diablo Canyon licensing pro-ceeding, numerous improprieties have undermined public con-fidence in the NRC's ccmmitment to evaluate objectively the safety of Diablo Canyon, First, the NRC Staff engaged in improperly overzealous ef forts to license Diablo Canyon.
Internal memorandum reveal that the Staff (1) considered approaching high level USGS officials in order to influence 4/
their assessment of the Hosgri fault; (2) considered
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factors irrelevant to safety in evaluating alternative approaches to. address. t_hje_. safety _ issues raised by the Eosgri
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By letter dated January 28, 1975, the USGS informed the NRC Staff that the data then availab.lt required the assumption that the 1927 earthquake (7. 3MA) occur-red on the Hosgri.
That being the case, the design value of 0.5g prepared by the Staff for the Ecsgri re-analysis was inadequate.
SER. Supp. 1, at D-9,10.
An internal NRC Staf f memorandum dated February 20, 1975, states as follows:
It is my opinion that, unless specific guidance appropriate to this unique situation is pro-vided to the USGS geologists and seismologists, they will proceed with their review basing it upon their standard methods and arrive at a site SSE "g" value well in excess of the 0.4g value approved for the CP and used for the de-sign of the almost completed plant.
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_ discovery;
' (3) adopted a licensing _ strategy, casting the
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Staff as advocates for the as-built design, by proving, after-the-fact, that-the original design.was so-conservative that -the plant could safely withstand a 7.5M on the 'Hosgri fault.
Second, the Licensing Board hearings, established to-evaluate the Staff and Applicant seismic reanalysis, appear-ed to be a pro-forma exercise.
For the most part,'the
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Licensing Board sat mute through two and one-half _ months'of hearings, asking few cuestions that 'would have probed the testimony.of the expert witnesses, Staff, Applicant or Intervenor.
In addition, the Licensing Board sought 5/
An internal NRC Staff memorandum, dated January 12, 1976, states:
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In developing a_ program'to[~foilloO~tF N sbive'.~.Isic).,,j 71,' :
s the Diablo: Canyon problem,;considera,ti,on.s,hould,be(, y. g..
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given to:
1.
The impact of our decisions on the nation's energy problems and programs.
The impact of-potential denial for operation:of'a plant approved for construction cannot be underesti-mated, especially where the basis for denial is in controversy.
2.
The impact of our decisions on the moratorium before the California voters.
F 3.
Tne impact of our decisions on-the viability of continued operation of plants at other sites with altered seismological bases, such as' San Onofre, Pilgrim, etc.
The impact of our decisions on the. viability 4.
of continued operation of plants where_it is.
uncertain that the capability exists to with-stand' altered design bases in areas other than seismic design, such'as containment structural.
design, pipe whip'inside containment, spurious valve failures, etc.
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. l to exclude the testimony of two essential witnesses, Drs.
Trifunac and Luco, the ACRS consultants who criticized the 6/&7/
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Staff and Applicant's sc.ismic reanalysis.
Finally, the Licensing Board's decision on controversial issues " unique to nuclear power plant design" contains no independent analysis of the exper: testimony.
Fully 80-90% of the text was lifted - word for word - from the Applicant or Staff's proposed findings.
Third, the reconstituted Appeal Board assigned to hear the appeal from the Licensing Board's insufficient decision does not have the appearance of impartiality.
Even if Dr.
Buck, the newly assigned member of the Appeal Board is 6/
The Licensing Board attempted to exclude this critical testimony through a. series,of' inconsistent rulings,sup __
ported by no reason'ed basis'. 7JnTreyers.ing the Licensin'g.
Board' decision and ordering the"issuancefof. subpoenas for the ACRS consultants, the Appeal Board was ' required to remind the Licensing Board of the legal obligation to provide a reasoned basis for its rulings.
ALAB-519, 5 NRC, 42,4S.
Most recently, the Appeal Board vacated the Licensing Board's approval of the Applicant's se-curity plan admonishing the lower tribunal for its in-adequate performance:
No conceivable good is served by making empty findings in the absence of essential evidence.
Thus the unequivocal finding that the security plan " complies with all applicable NRC regula-tions" -- where the Licensing Board never saw the plan -- is so much waste ink.
ALAB-580 (February 15, 19 8 0 ) (Slip. 02. at 6-7).
7/
The Licensing Board's action provoked strong editorial criticism from the major, local newspaper and provoked
~
the paper-to run carricatures of the board members in a " hear-no-evil," "see-no-evil," " speak-no-evil," posture.
_g-capable of approaching this case with an open mind, his past actions so strongly suggests prejudice that his pres-ence on the Appeal Board taints the objectivity of that 8/
tribunal in the public eye.
Fourth, the public is aware that the Chairman of the Board and other high PG&E officials met privately with two Commissioners to argue substantive issues upon which the Commission will pass judgment ultimately.
Recent Governmental Inquiries The conclusion that the NRC lacks the necessary commit-ment to safety is fcrtified by findings of recent govern-mental inquiries.
First, the report of The President's Ccmmission on the Accident at Three Mile Island documents the following specific findings:
We find that the JRC is so preoc_cupi.ed.
with the licensihs J6f '.plantsr that -it has..' -- ~,.'.'..; ': " l -
not given primary consideration.to..overall safety issues.9/
With its present organizations, staff and attitudes, the NRC is unable to fulfill its responsibility for providing an accept-able level of safety for nuclear power plants.10/
8/
Infra at 11, 9/
Recort of the President's Commission on the Accident at Three Mile Island, 51.
10/
Id. at 56.
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Most recently, another of ficial voice - this time the NRC's Three Mile Island Special Inquiry Group - added this critical observation:
Insof ar as the licensing process is supposed to provide a publicly accessible forum for the resoluticn of all safety issues relevant to the construction and operation of a nuclear plant, it is a sham. M/
2.
Intercession By The Commission Will Not Delay Final Review of Applicant's Operat-ing License.
The Commission's intercession will expedite resolution of the seismic issues by eliminating the time consumed by intermediate appellate review.
Similarly, early intercession by the Commission will hasten a final decision regarding Joint Intervenors' contention that there is a need for f urther evidentiary hearingi." ~ ~ ~ f J'
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The Commission's objective To Increase Its Role in Individual Licensing Proceedings Will Be Fully Effectuated By A Determination To Intercede in the Seismic Appeal.
A determination to intercede in this proceeding and to become directly and personally involved in the resolution of the seismic issuer is consistent with the recently established objective of increased supervision of individual licensing 11/
Nuclear Regulatory Commission Special Inquiry Group, Three Mile Island, A Report to the Commissioners and to the Public, 139.
(Cited hereinaf ter as Special Incuiry Group Report).
e This proceedings.
Modified Adjudicatory Procedures, supra.
4 objective recognizes that licensing nuclear power plants is "one of the most important functions that (the Commission) perfor=s," and so deserves the Commission's close super-vision.
Specia] Incuiry Group Report at 140-1.
It also recognises that public confidence in the Commission's ability to provide "an acceptable level of safety for 12/
nuclear power plants,"
is likely to be restored _ and
~-
maintained on5y if the public perceives that the individual Commissioners are concerned about safety in the context of individual licensing proceedings.
No better or urgent occasion will arise than the Diablo Canyon seismic appeal for the commission to demon-strate to the public that it is, indeed, commited to safety-and f airmindedness and t hat..it-intends toofulfill its. ob ---.'..-....
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ligation to become m'o're" involvediri lfce'niing"decisi~ons.1 4.
The Commission's Intercession Will Aid It In Addressing Seismic Issues Raised in Other Proceedings and In Formulating New Seismic Siting and Design Criteria.
The first-hand experience and insight gained by taking personal control of the seismic appeal will aid the
- direct, Ccmmission in addressing seismic issues raised in other 12/
Report of the President's Commission at 56.
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. proceedings.
At least two Appeal Board rulings now pending before the Ccmmission involve controversial contested 13/
seismic issues.
And based on past experience, it is most likely that seismic design will be a prominent contested 14/
issue in other Commission proceedings as well.
In addition, the experience gained through direct, personal involvement will aid the Commission in evaluating
~
new seismic, siting and design criteria.
The Commission's governing regulation, 10 CFR S100, Appendix A, enacted approximately eight years ago, is undergoing revision to reflect experience gained in applying the old regulations as 15/
well as advances in the state-of-the-art.
THE APPEAL BOARD DESIGNATED TO HEAR THE APPEAL ON THE B.
SEISMIC ISSUES MUST BE RECONSTITUTED TO ASSURI THE APPEARANCE ~OF IMPARTIALIThen
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t the seismic appeal is not warranted at this time it should, e
13/
Seabrook, ALA3-4 2 2, 6 NRC 33; Indian Point, ALAB-436, 6 NRC 547; Indian Point and Seabrock, ALAB-561, 10 NRC 14/
For example, controversial seismic issues are found in NRC proceedings on North Anna, Humbolt Bay, Skagit, and Maine Yankee.
15/
Indian Point, ALA3-436, 6 NRC 547, 574-77; Indian Point and Seabrook, ALAB-561, 10 NRC (Mr. Farrar dissenting, Slip Op. at 6), SECY-79-300.
9
at least, reconstitute the Appeal' Board assigned to hear the' appeal on the seismic issues.
This action is required to restore to the Appeal Soard the a'ppearance of impartiality -
the fundamental legal requirement of any administrative adjudicatory hearing - which will be tainted by Dr. Buck's recent appointment to the Appeal Board.
1.
Joint Intervencrs Are Entitled To An Impartial Appeal Board.
The right to a hearing before an impartial, tribunal is a fundamental requirement of due process.
In re Murchison, 349 U.S.
133, 136 (1955); Amos Treat & Co. v. SEC, 306 F.2d 260, 263 (D.C. Cir. 1962).
Protection of that right re-quires more than impartiality; it demands "the appearance of 16/
impartiality."
In fact, the right to an impartial tri-bunal is so important that. theTSupreme CourtThas; ~ recognized,
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actual bias and who would do their very best to weigh the scales of justice eqpally between contending parties."
In re Murchison, supra, at 136.
see also, Webb v. McGhie Land 16/
In re Murchison, supra.;
Title Co.,
549 F.2d 1358 (loth Cir.1977) ("The appear-
~-
ance of fairness is virtually as important as fairness in f act") ; Cinderella Career and Finishine Schools,
Inc.
- v. FTC, 425 F.2d 583 (D.C. Cir. 1970);
Texaco, Inc. v. FTC, 336 F.2d 754 (D.C. Cir. 1964),
aff'd in part, 381 U.S.
730 (1965); pillsbury Co. v.
FTC, 354 F.2d 952, 964 (5th Cir. 1966) ("Tne appearance of fairness is the sine cua non of American judicial justice.")
e These principles must be scrupulously applied to this proceeding.
The appearance of impartiality is especially important in the contex'c of administrative proceedings, governed by the express terms of Section 7(a) of the Admin-17/
istrative procedure Act, "where many of the safeguards
~~
which have been thrown around court proceedings have, in the interest of expedition and a supposed administrative effi-ciency, been relaxed."
Moreover, where matters vital to the public health and safety are at stake, the right to the 18/
appearance of impartiality is even more carefully safeguarded.
17/
5 U.S.C. 51006(a):
"The functions of all presiding officers and of officers participating in decisions in conformity with section 1007 of this title shall be conducted in an impartial manner.
Any such officer _may;atmany time;wiAhdraw.i_f he' deems.
himself dischia~11fiedC,ahd;,7^vpon-the-filing-in.-good.l--). ;; n.
f aith of la timeIy*.and 'suf ficienFa~ffiTafit' of ?per- ' " Z : ~-
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sonal bias 'or disd6alifiduti6n 'Of' any such~ officer, the agency shall determine the matter as a part of the record and decision in the case."
the Court' observed, 1E/
In Amos Treat, supra.,
An administrative hearing of such importance and vast potential consequences must be at-tended, not only with every element of f airness but with the very appearance of complete fairness.
The " vast" consequences faced by petitioners in Amos Treat, supra., were that itc broker-dealer registration would be suspended and that it would be expelled from the National Association of Securities Dealers.
Certainly the licensing of a massive nuclear facility located four miles f rom an active f ault is of equal consequence.
_ 14 _
2.
Dr. Buck's Appointment To The Appeal Board Violates The Appear-ance of Impartiality.19/
Despite the general rule that prior involvement with sim-ilar issues or parties is not a sufficient basis for dis-20/
qualification, the courts recognize that in some "there may be unusual circumstances where, both for
- cases, the judges sake and the appearance of justice, an assignment to a different judge is salutary and in the public interest especially as it minimizes even a suspicion of partiality."
Holley v. Lavine, 553 F.2d 845 (2nd Cir. 1977), cert.
denied 435 U.S.
947.
Close examination of the circumstances under which this principle has been applied, requires the On January 2, 1980, Mr. Rosenthal withdrew from the 19/
Appeal Board assigned Ao hear the Diablo_ appeal and,
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pursuant to his ~auth~oYity'i's"GafrrXsir of"the ' Atomi'c Safety and Liceifsi'nVXpyeil Pindl',We~ cons'tituted' ^th'er 3 6# ;T -
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His st'st'edreas'on"for doing'so'wEs "tb" provide Board.
a more even distribution of (the] overall case load among the various panel members."
Two boards were created to consider the Diaolo Ca.9 yen one to consider the appeal from the Licens-appeals:
ing Board ruling on security issues; a second to con-sider the lower board's ruling on the seismic issues.
For appeal on the seismic issues, Mr. Rosenthal re-placed himself with Dr. Buck.
Memorandum of January 4, 1980.
20/
Ash Grove Cement Co.
- v. FTC, 577 F.2d 368 (9th Cir.
1978); Weber v. Garza, 570 F.2d 11,13 (5th Cir. 1978);
United States v.
Garrison, 340 F. Supp. 952 (E.D. La.
1972).
21/
conclusion that disqualification of Dr. Buck is compelled.--
Even if Dr. Buck is capable of evaluating the seismic issues with an open mind (gnd he may well be), his past record in this and other proceedings strongly suggests that he may have " difficulty in putting aside previously ex-pressed views" relevant to the seismic issues on appeal, Holly v. Lavine, supra. at 1360, and has a preconceived 21/
Ecliey v. Lavine, supra.
(Plaintif f challenged N.Y.
state registration requirements for AFDC benefits.
After the district court dismissed for lack of juris-diction and failure to state a claim, appellate court reversed and remanded, directing the lower court to convene a three-judge panel to hear the constitutional claims.
Thereafter, the district court granted summary judgment to the defendant, and plaintiff appealed.
The appellate court reversed, held the plaintiff eligible for benefits, and remanded the issues of appropriate damages and injunctive relief.
It ordered that a different district court judge preside on remand since.
"it appe' errs thi 'o'riginal jtidge5hil'ght"ha~ve"alTfi"cu1tfin' C ~
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~
~, reassignment putting a. side,previously expressed v,iews__._j.
is advis~able to avoid the' appearance'of pre udgment~.
' ' " )' '
~
Webbe v.
McGhie Land Title Co., 549 F.2d 1358 (10th Cir. 1977) (A trial court granted summary judgment for plaintiff land purchaser, relying exclusively on the plaintiff's depositions and oral argument.
The Court of Appeals reversed and ordered the case remanded to a different judge observing that the original judge's im-partiality "might be reasonably questioned."
"(A]ppear-ance of impartiality is virtually as important as the fact of impartiality.")
Wilson v. Idelman, 542 F.2d 1260 (7th Cir. 1976) (The Court of Appeals reversed trial court on a question of plaintiffs' entitlement to supplemental Security Income benefits and ordered that
]
the case be reassigned to another judge than the one who erroneously ruled that plaintiffs had not exhausted administrative remedies).
i t
s 16 - -
attitude toward!those issues.
Therefore, his1 presence taints th objectivity of the Appeal Board-in the public eye.
In. two prior cases, Dr. Buck rej ected as. ' "too con--
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~~
servative" the opinions of Dr.. Mihailo Trifunac, one of the two' ACRS consultants critical' of the Staff and Applicant's seismic reanalysis of Diablo Canyon.
In each case, Dr. Buck 1
rejected Dr. Trifunac's recommended criteria (ground accel-eratio'n levels) to characterize the earthquake forces for 22/
~-
which the plants were to be designed.
Having twice rejected Dr. Trifunac's opinions, Dr. Buck may well be; predisposed to do the same here.
In addition, early-on in this proceeding - in'1971 -
Dr. Buck'was on the appeal board that-failed to consider
- 31 ~~i
..rr:_
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_ :____ - _;:22 adequately theJcint'erveners 8 - valia*c~on~c'e'rnsT.re~cjir%3Xg the1WM~M.'.
i
~~-: :.pp== : 7.= r..-, -.mr.===~..
plant's seismic des'ign and, instead,' approved issuance'6f a.-
construction permit for Unit 2 at Diable Canyon.
The Appeal Board erred in two ways.
First, the Appeal Board
-t sanctioned an inadequate site investigation and ruled that f
investigations were unnecessary because of the. thoroughness of the PG&E studies.
At the time, offshore. surveys conducte'd 22/
Seabrook, ALAB-422, k5 NRC 33, 54-65; Indian Point, ALAB-436, 6 NRC 547.
f e
1
,1
by the USGS revealed a belt, of f aulted and disturbed strata offshore the plant site, determined later to be the Hosgri fault.
PG&E had not conducted offshore surveys to investi-23/
gate this structure and failed to uncover the existence
-~
of the article on the Hosgri f ault, published six months prior to the Appeal Bocrd decision, which two and one-half years later precipitated the seismic reanalysis.
Second, the Appeal Board rejected intervenors' requests to reopen the record to examine new earthquake data because there was "no inconsistency between (the] data and the 24/
seismic design criteria assigned to Diablo Canyon.
The Appeal Board failed to address the fact that record-high ground acceleration values had been recorded five months before, during the San Fernando, California earthquake of February 9, 1971, and that the intervenors contended that the data raised; questions'r_egarding..th'e. adequacy oflDiablo :__..__
.~ :2S/,
~^
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Canyon's seismic design. '
~Mos t ~bf 'all the Appeal ~ Board 's ' ~ ~ ~ ~ '
23/
Letter from Lee V. Gossick, Executive Director fo; Operations to Morris K. Udall, Chairnan, Subcommittee on Energy and the Environment, Committee on Interim and Insular Affairs, dated March 31, 1977.
Enclosure 1 at 1.
24/
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Unit 2), Docket No. 50-323, Appeal Board Decision (July 14, 1971).
25/
Diablo's original design was based on consideration of four earthquakes, among them a 6.75M earthquake close to the site.
This earthquake was selected to cover the risk that the site evaluation had failed to uncover an active fault close to the site -
e.g.,
a Footnote 25/ continued on page 18.
l.
opinion contains ng statement as to how it reached its conclusions, furthering the impression of a relaxed attitude toward valid citizen concern.
We turn now to a final point.
Given this appearance of.
partiality, only the most compelling reasons would justify Dr. Buck's appointment to the Appeal Board.
No such reasons have been offered.
The first stated reason for reconstituting the Appeal Board is administrative convenience and necessity.
Because he ruled en prior motions, Mr. Rosenthal obviously has been accuainted with the substantive aspects of the seismic 26/
reanalysis.~~
Arguably, administrative convenience and efficiency is best served by Mr. Rosenthal's continued participation in this proceeding, rather than by substitut-
~ ~~ ~'
ing a new person unfamiliar with the proceeding.
- .wqqm a y,. n= : w.tu e ncp : -:i.iy w.;.a.:e7 n-:w;, 4..,.-
Second, the advantages of a'ppointing a scientist to the m_
s.
Appeal Board are cited to justify the selection of Dr. Buck.
However, expert judgments regarding the legal sufficiency of I
the evidence and interpretation of the regulations are e ery bit as important as analyzing the technical testimony.
Inasmuch as the lawyers on the appeal panel have had broad exposure to scientific issues, and, in some. cases, extensive Footnote 25/ continued from page 17.
h_ried fault or one offshore.
The Applicant assigned a ground acceleration of.20g to the 6.75M earthquake and doubled that figure to obtain.40g to characterize the maximum forces associated with that earthquake.
The San Fernando Valley earthquake was 6.5 magnitude.
Peak accelerations for the event topped out at 1.20g, substantially greater than.40,9 selected for Diablo.
26/
See e.g., ALAB-504.
e exposure to seismic issues, Mr. Rosenthal's emphasis on scientific training appears misplaced.
Dr. Buck doesn't have the scientific In any event, background on issues that will be raised on appeal.
Dr..
Buck's scientific training is in nuclear physics.
The issues on appeal require expertise in geology, seismology, and earthquake engineering, disciplines only remotely re-lated to nuclear physics.
CONCLUSION For the reasons set forth above, the Joint Intervenors request the Commission to intercede and take upon itself.the hearing of the appeal on the seismic issues.
In the alter-native, the Joint Intervenors request the Commission to reconstitute the Atomic-,; Safety and Licensing Appeal _ Board j
assigned to hearing the. appeal.o.n.the seismic..issuesi : ';; A-
._e Failing action on either request, the Joint Intervenors request the Commission to refer to Dr. Buck the question as to whether, in view of the arguments cited in this motion, he should recuse himself from the Appeal Board assigned to hearing the appeal on the seismic issues.
1 J
e e e 1
a
~
9 Request For Expedited Consideration and Oral Argument The Joint Intervenors submit that this motion presents novel and significant policy questions for _ the Commission's consideration.
We believe that oral argument would assist the Commission in its deliberation and, accordingly, request an opportunity to present oral argument on this motion.
Further, in view c f the f act that oral argument before the Appeal Board is scheduled for April 3, 1980, Joint Intervenors request that the Ccamission give this motion expedited consideration.
Respectfully submitted, (Mi^
~. ~.
. =
..~ -
- David 'S. ~ Fle'ischiker, 'Esq.-
17 3 51ye S tre e t, S.W.
.c.- ;.- -
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2.
Siit's~~709~"=" '-~
Washington, D.C.
20006
^ '
(202) 638-6070 John R.
Phillips, Esq.
e CENTER FOR LAW IN TEE PUBLIC INTEREST 10203 Santa Monica Boulevard Los Angeles, California 90067 (213) 879-5588 Attorneys For Joint Intervenors SCENIC SHORELINE PRESERVATION CONFERENCE, INC.
SAN LUIS OBISPO MOTHERS FOR PEACE ECOLOGY ACTION CLUB SANDRA A. SILVER GORDON SILVER JOHN J. FORSTER ELIZABETH APPELBERG MARCH 13, 1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION SEFORE THE COMMISSION
)
In the 1tter of:
)
)
PACIFIC GAS & ELECTRIC
)
Docket Nos. 50-275 0.L.
COMPANY
)
50-323 0.L.
(Diablo Canyon Nuclear
)
Power Plant, Units 1 & 2)
)
)
CERTIFICATE OF SERVICE I hereby certify that on this 13th day of March, 1980, I have served copies of the foregoing JOINT INTERVENORS' REQUEST FOR THE COMMISSION'S EARLY INTERCESSION OR, IN TEE ALTERNATIVE, RECONSTITUTION OF THE APPEAL BOARD, mailing g
- c. _ L _ -
c7. v
- .. m g _,m,, _,,,,,,
them through the U.S. Mails, first-class, postage prepaid,
=...
and by hand-delivery to those parties designated by an asterisk.
e Joseph M.
- Hendrie, Richard T. Kennedy, Commissioner Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 Victor Gilinsky, Peter A. Bradford, Commissioner Commissioner
~*
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555
)
9
UNITED STATES OF AMERICA.
NCCLEAR 72GULATORY CCMMISSION EEFCRE THE COMMISSION
)
In the Matter of:
)
)
PACIFIC GAS & ELECTRIC
)
Locket Nes. 50-275 0.L.
CCM?ANY
)
50-323 0.L.
(Diablo Canyon Nuclear
)
Power Plant, Units 1& 2)
)
)
JOINT INTE?7ENCRS' REQUEST 70 STAY ORAL AF:GUMENT ON THE SEIS !IC ISSUES _
The Joint Intervenors request the Ccamission to stay oral argn=ent on the seismic issues before the Appeal Board, presently scheduled for April 3,
1980, so that the Commission will have adequate time to evaluate the important questions rai sed in the COINT INTERV.ENOR.S '.R. EQUE.S,,T FO.R..- T. H.E. C._OX,:4.I.S.S..
- ~
EARLY INTE?CESSI,0N.OR, I,N THE ALTERNATIVE, RECONSTITUTION OF THE APPEAL 30ARD.
e 7espectfully submitted, l V.A k (f Y A Y'.K Y Y David S. Fleischaker, Esq.
1735 Eye Street, N.W.
Suite 709 Washington, D.C.
20006-(202) 638-6070 John R. Phillips, Esq.
CENTER FOR LAW IN THE PUBLIC INTEREST 10203 Santa Monica 3oulevard Los Angeles, California 90067 (213) 879-5528 Attorneys For Coint Ir.tervonors MAFCH 13, 1930
U:"ITED STATES CT A."lEICA NUCLEAR FIGULATCRY CC 0!!SSION EEFO?2 THE CCIO ISSICN
)
In the ::atter of:
)
)
PACIFIC GAS & ELECTRIC
)
Docket Nos. 50-275 0.L.
CC"JANY
)
50-323 0.L.
(Diablo Canyon I;uclear
)
Pcwer Plant, Units 1 & 2)
)
)
CERTIFICATE OF SE.J1 ICE I hereby certify that on this 13th day of March, 1980, I have ser.'ed copies of the foregoing JOINT INTERVENORS' KEQUEST TO STAY O?.AL ARGU:GNT ON TEE SEIS :IC ISSUTS, mailing s
the.m through the U.S. : ails, first-class, postage prepaid, and by hand-deliVe~ry'.E5th'os5 pdrtTes 'de'signated by 'an" [ ---
~['.,,
~
- =-.
asterisk.
Jcseph M.
- Hendrie, Richard T.
Kernedy?
Cc.cissicner Ccr..i s s 2.cne r U.S.
- cclear Ecgulatory U.S. ': clear Regulatory Ccr. mission Cceris sion 1717 H Street, N.W.
'1717 H Street, N.W.
Washington, D.C.
20555 Washingten, D.C.
20555 Victor Gilinsky, Peter A.
- Bradford, Ccrrissioner Cerr.issicner U.S. ::uclear Regulatory U.S. Nuclear Regulatory Ccr. mission Ccrr.ission 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 2
i j
1 J
i 1
Jchn F.
- Ahearne, Dr. William E. ::artin Chai=an Battelle 1:2merial Institute U.S.
- uclear Regulatory Celurbus, Ohio. 43201 Ccrnission 1717 H Street, N.W.
Docket & Service Section Washington, D.C.
20555 Office of the Secretary U.S. Nuclear Ee:mlatory Richard S.
Sal nan, Ccr=ission Chair.an Washingtcn, D.C.
2C555 Atemic Safety & Licensing Jar.es R.
Tourtellotte, Esq.
Appeal Fanel U.S. Nuclear ?egulatory L.
Dow Eavis, Esq.
Ccr. mission Marc R.
Staenherg, Esq.
4350 East West Highway Edward G. Ketchen, Esq.
Esthesda, Maryland 20014 Office of the Executive Legal Director - 3ETH 042 Dr.
W. Seed Johnson U.S. Nuclear Eegulatory Atomic Safety & Licensing Ccrnission A:.. Gal Panel Washinc.tcn* D.C.
20555 U.S.
';uclear Eegulatcry Cornission Mrs. Ilizabeth Apfelberg 4350 East West Hichway c/o Nancv. Culver Esthesfa, Maryland 20014 182 Luneta Drive San Luis Cbispo, CA 93401 ar, v c..n H. su c..<
Atcmic Safety & Licensing Mr. Frederick Iissler Appeal Tanel Scenic Shcreline Preservation U.S. Nuclear Regulatory Conference, Inc.
Drive. ;.; _. s c, wcL 4 35 0 Em st 1 est~ Hish9fy..T ~ ~ ~ ' ';;;f 6,2 3,_jiorp Mesa 1 Ccrcission
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.gAhi.3105,
.y. c le Santa' Sa'rbara,1 9
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Sethesda, Maryland.. 2. 0. 0 1 4 1 _ 1,_
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~ Silver' Sandia A.
Elizabeth S.
Ecwers, Esq.
1760 Alisal Street Chairman San Luis Chispo, CA 93401 Atenic Safety & Licensing 3:ard Gcrden Silver U.S.
Nuc1 car Fegulatcry 1760 Alisal Street Cc =.i s s i on San Luis.Cbispe, CA 92401 Mail Drop East West 450
- Washington, D.C.
20555 John ?hillips, Esq.
Center 7cr Law In The Glenn O.
Sright Public Interest Atcmic Safety & Licensing 10203 Santa ':enica 30ulevard Ecard Fifth Floor U.S. Nuclear Begulatory Los Angeles, CA 90067 Cercission Mail Drop East West 450 Bruce norton, Esq.
Washington, D.C.
20555 3216 N.
Third Street Suite 202
?hcenix, Arizcna 35012 O
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-3_
e-Mr. Yale I.
Jcnes, Esq.
Arthur C.
Gehr, Fsq.
- e 100 Van :*ess Avenue Snell & Wilner 19th Floor 3100 Vallcy Center San Francisco, CA 94102 Phoenix, Arizona 25073 Andrew Ealdwin, Esq.
Mrs. Raye Fleming Friends of the Earth 1920 Mattie Ecad Shell Isach, CA 93449 124 Spear Street San Francisco, CA 94105 MEB Technical Associates Paul C. Valentine, Esq.
1723 Hamilton Avenue Suite K 321 Lytton Avenue Palo Alto, CA 94302 San Jcse, CA 95125 Canice E.
Ferr, Esq.
Carl ?:eiburger Lawrence Q. Garcia, Esq.
Telegram Tribune J.
Calvin Sirpson, Esq.
P.O. Zex 112 California Public Utilities San Luis Obispo, CA 93402 Ccinission 5246 State Puilding J.
Anthony Kline, Esq.
350 McAllister Street Legal Affairs Secretary:to San Francisco, CA 94102 the G:vernor State Capitol Building
':alcoln H.
Turbush, Esq.
Sacranento, California 95814 Vice President and General Counsel Herbert H.
Srown, Esq.
Philip A.
Crane, Esq.
Hill, Christopher & Phillips Pacific Gas & Electric Company 1900 M Street, N.W.-
31st Floor Washington, D.C.
20036 77 2eale Street,
- 7. rem 3127 San Francisco, CA 94106 e
l VJ. ' ', T a')..! Y V '). h )
David S.
Fleischaker, Esq.
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