ML20045E817
| ML20045E817 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 03/31/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-045, SECY-A-80-45, NUDOCS 9307060082 | |
| Download: ML20045E817 (19) | |
Text
Y'I \\
s UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C; 20555 CONSENT CALENDAR ITEM ADJUDICATCTRY'
/
For :
The Commissioners
,/
From:
Leonard Bickwit, Jr., General Counsel
/
Subject:
Review of. Dr. Buck's determination not to dis-qualify himself (Matter of Pacific Cas and Electric Company)
/
Diablo Cany 1 and 2 h r,ecommen:,on Unit Facility:
d that
Purpose:
i T
Review Titne Expires:
April 21, 1980 Discussion:
On March 13, 1980, Joint Intervenors in this pro -
ceeding filed a motion with the Commission request-:
ing that Dr. Buck be disqualified from participatin.
in the Diablo Canyon operatihg license proceeding.,
On March 21, tine 'C6mmis~s16hTissifed"sn'srdsF c S' directing Dri 'Budk"t6 rulf 6n"the Ts(dsstiF;=0n"* :
2 ~d tTie Commissiod'tM" '
t
~
~
March 24, Dr. %ckseiit attached eight page memorandum in which he conclude that there is no legal requirement that.he dis-qualify himself, and that he did not intend to.do so.
Joint Intervenors filed on March 28 the attach petition requesting Commission review of his deci-sion.
C l
Inictmatien in this re:ctd was dele'.ed in accordance w!th thptedom of in!ctmation- - -
Act, er.emptions -
Fom. _fd._Mld._ -
CONTACTS:
hschild, OGC SECY NOTE:
This paper is identical to advance copies 6
which were circulated to Comission offices on James A. Fitzgerald, OGC March 31, 1980.
/
4-3224
},
/-
OILINSK92-436 PDR
.h/
The Commissioners 2
We-believe that i
1 i
l 1/
The Commission's reguations' provide parties ten days to file responses.
i
m
. m The Commissioners 3
With1 respect toEJoint Intervenors ' charge that-he-i it:
mishandled the Diablo Canyon construct on perm
_ proceeding and that this'may preclude him?from acting impartially, Dr. Buck-asserts that ~ the-
" allegations of error are nothing but a bald' attempt to resurrect ancient history."- Hel decided not:to- '
refute the alegations point by point'because3 it.:
would have given an " unwarranted semb.lence1of credence to the: charges."
Instead he notes that o
five other members.of Licensing and-Appeal Boards
)
also decided to approve construction of. Unit? 2 of i
the Diablo Canyon plant, j
Joint Intervenors in their petition'for. review claim that Dr. Buck has not dispelled "the serious i
implications of his prior actions:in the'Diablo.
Joint Intervedors Canyon construction proceedings'!.
argue that prior rulings dismissingi heir seismic t
concerns and refusing to reopen the record to receive additional seismic' data are not " ancient history" but decisions which create " considerable.
public' doubt regarding his ability to maintain total impartiality".
OGC concludes
'M
- - ~ * = ~ ~ ~ -.. _. _ _
We therefore recommend that Leonard Bickwit, Jr.-
General Counsel
- Attachments:
1.
Draft Order 2.
Buck -Memo-of' March 24 3..
Petition for review-
4 Comissioners' coments or consent should be provided directly to the Office of the Secretary by c.o.b. as soon as possible.
This paper will be scheduled for affirmation at an Open Meeting at the e'arliest practicable date.
DISTRIBUTION Comissioners Comission Staff Offices Secretariat
sw e
e t
t e
l 9
l 1
i 1
1 1
1
'l
k n
.yW
<a-41 p
g&p.,,
m
.-.m f
i 4
O b
4 1
1 7
9 4
dt P
1 Attachment'2
--y--
~.-,
e
=.<
,%wv 1
O O
e s
4 4
I i
e I
C
-1 UNITED STATES-OF AMERICA
_ c::,.)
}
NUCLEAR REGULATORY COMMISSION t
w.+
aN. ' '
~
Of9,4 -.,i '.]7 John H. Buck h..
Member, Appea1 Board L.
di v, ^y/.7
\\-
/
\\. '.
~.
y In the Matter of
)
)
PACIFIC GAS & ELECTRIC COMPANY
)
Doc) set Nos. 50-275 OL
)
50-323 OL (Diablo Canyon Nuclear Power
)
Plant, Units 1 and 2)
)
)
)
MEMORANDUM TO THE COMMISSION March 24, 1980 on March 13, 1980, joint intervenors filed with the
- Comission a request that it,,eith,enge upo3gelfpe
..g y
hearing of the. appeal on the. seismic issues.now.-before the Appeal Board or reconstitute the Appeal Board to hear that appeal.
Claiming they are entitled to an impartial Appeal Board, the joint intervenors advance as ground for their alternative request that "Dr. Buck's appointment to the Appeal Board violates the appearance of impartiality."
Apparently recognizing the possibility that neither request might be granted, the joint intervenors asked as a third possibility that the Comission " refer to Dr. Buck the question as to whether, in view of the argument cited k.
. 2.
in [ joint intervenors'] motion, he should recuse himself'from the Appeal Board assigned to hearing the' appeal."
By order dated March 21, 1980, (CLI-80-8, 11 NRC
) the Commission has done so.
This memorandum responds to that directive.
That a right to a hearing before an impartial tribunal is a fundamental requirement is not at question.
What must be decided is whether my continuation-on the Appeal Board jeopardizes joint intervenors' due process rights, therefore requiring my recusation from the Board.
Joint intervenors do not allege actual inability on my part to deal objectively with the issues that may be involved in their appeal.
- Indeed, they grant.that I may well have that capability.
Motion, p. 15. -.
Rather, the joint interve'nors chaijeth'aUsiy AFf6Ei:EnlithEI5* **'
h i
~
this Board may*' viola'te'the' ~appeh'rafice bFlin$Hddlity*b5Nusi I may have "' difficulty in putting aside previously expressed 1
views' relevant to the seismic issues on appeal," and that.'I have a " preconceived attitude toward those issues."
M., pp. 14-16.
The joint intervenors cite two bases for this assertion.
One is that I had rejected as "too conservative" the opinions of Dr. Mihailo Trifunac, an expert witness who appeared on behalf of opponents to the issuance of construction' permits in two different proceedings and whose testimony is also l
i
.n.
e
,,e,
.mc
..n
involved in the proceeding at bar.
Having twice rejected his opinions, they say, I mm " predisposed to do the szme here."
Motion, p. 16.
This ground is simply insufficient in law and fact.
The Supreme Court has.noted with approval that " judges frequently try the same case more than once and decide identical issues each time."
FTC v.
Cement Institute, 333 U.S. 683, 703 (1947).
Certainly,~a stronger constitutional compulsion is not imposed on an Ibid.
agency adjudication in this respect.
The joint intervenors base their " appearance" of par-tiality claim on the following circumstances.
Dr. Trifunac 1/
~
appeared in these earlier proceedings to give expert testimony on she re'latiorisN%eW(eri eaYthquake intensity
~~ ~~
and the resulbi$g ground acceleration.
He expressed his
~
opinion as to the level of ground acceleration which the reactors in question should be built to withstand in order to provide reasonable protection for the public health and safety.
Both the applicants and NRC staf f presented their own expert witnesses on the subject.
There was agreement among all the witnesses on the general relationship between earthquake intensity and resultant ground acceleration, but 1/
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977) and Consolidated
~~
Edison Company.of New York (Indian Point, Units 1, 2 and 3),
ALAB-436, 6 NRC 547 (1977).
4-Dr. Trifunac differed from the other witnesses in the value of acceleration which the reactors at the two sites should be built to withstand.
In each case, on the evidence pre-sented, the majority members of the two Boards decided that Dr. Trifunac's opinion was more conservative than necessary 2/
considering all the factors involved.
To be sure, there was disagreement among the members of each Board on the weight to be given Dr. Trifunac's opinion.
But it is neither sinister nor even unique for judges or adjudicators to dis-All this shows is the truth of the old adage that agree.
3/
reasonable minds can and often do differ on any given issue.-
I find no substance to joint intervanors' claim that my vote's in these two proceedings. suggest the appearance of pers.onal.
-w n ne c e -,-- n u-.v.. -,=. -.=.
- .7 - -.:r: - '. 7;.
bias.
m
!~
n :rded
- .h,-
- cc-e-- n. :.c w
- m..
The joint intervenors rely on Holley v. Lavine, 553 F.2d 845 (2d Cir. 1977), cert. denied, 435 U.S.
947 (1978),
as compelling my disqualification from the present Board.
Motion, pp. 14-16.
In that case, the court of appeals con-sidered for the second time a district judge's denial of a
_2]
6 NRC at 62-64; 6 NRC at 581-585.
3/
In this connection, Mr. Rosenthal voted with me in the Seabrook appeal.
He is a lawyer with long experience.
~~
He has served as Chairman of the Atomic Safety and Licensing Appeal Panel since 1972.
In the Indian Point appeal, I was joined by Dr. Quarles.
He is a former Dean of the School of Engineering and Applied Science, University of Virginia, who has a broad technical background.
It is significant that persons with such diverse training and experience also agreed with my evaluation of Dr. Trifunac's opinion.
4 claim for financial assistance under New York's Social Scr-vices Law and Regulations.
In its consideration of the second appeal, the court found that the claimant was entitled to such assistance but lef t for trial court determination the appro-priate remedy.
In sending the case back to the lower court for the second time, the court made the observation on which the joint intervenors heavily rely:
'Since it appears the original judge night have difficulty in putting aside previously expressed views, and reassignment is advisable to avoid the appearance of prejudgment, the case will be remanded to the District Court for reassignment in keeping with the prin-ciples stated in United States v. Robin, 553 F.2d 8, 10 (2nd Cir. March 30, 1977).1/
Just what;f actors relatingfg.,the,.ogigipqQ,JrjJ judy,e'g l1 conduct persuaded the_ Court,of4ppeals to direct. reassignment._.
are not evident.
When that Court heard the claimant's earlier appeal, it had directed the trial adge to convene a three-judge court to consider the claimant'.s constitutional argu-ments in the event that the judge should find such assistance 4/
563 F.2d at 851.
In United States v. Robin, the appellate court set out the principal f actors f or determining whether
~~
further proceedings should be conducted before a different judge, absent proof of personal bias requiring recusation.
In that connection, the court stated that reassignment to another judge may be advisable in order to avoid "an exer-cise of futility" in the " rare case where a judge has re-peatedly adhered to an erroneous view after the error is called to his attention."
Applying the f acts of that case to the principles enunciated, the court found no warrant for assignment of the remanded proceeding to a different judge.
~
'~
6-barred by state law.
Even though, on remand, that was found to be the case, the trial judge nevertheless denied a motion to convene a three-judge court.
From its reference to the Robin decision, it is reasonable to assume that the recalcitrance of the trial judge which earlier heard the case was the basis for the appellate court's decision directing reassignment.
But the circumstahces alleged by the joint intervenors as suggesting the " difficulty" I may have in
"' putting aside previously expressed views' relevant to the issues now under appeal" are far different from those which confronted the Holley court.
Certainly, there has been no showing -- much less an allegation -- of refusal on my part
.. - =
to carry out any specific direction of the, Commission in this
~ = - - :,,
s..
._re - ez... e man =m ce =2.==c:-
t.:.m:ove coi>.-
or any other proceeding.-
I find no cause in the joint inter-venors'first basis for recusing myself from the proceeding.
As their second basis for claiming " violation of the appearance of impartiality," the joint' intervenors point to my earlier membership on the Appeal Board for the construction permit proceeding for the Diablo Canyon plant.
In their view, that Board " failed to consider adequately the intervenors' valid concerns regarding the plant's seismic design and, in-stead, approved issuance of a construction permit for Unit 2 at Diablo Canyon."
Motion, p. 16.
One error occurred, accord-ing to the joint intervenors, because the Board sanctioned an O
m.
e inadequate site investigation; the second is alleged to have been caused by the Board's rejection of requests to reopen the record to examine new earthquake data.
Id., pp. 16-17.
These allegations of error are nothing but a bald attempt to resurrect ancient history.
The alleged transgressions which are claimed to have occurred took place in 1971 when the Appeal Board decided an appeal from the Licensing Board's decision authorizing ccnstruction of Unit 2 of the Diablo Canyon plant.
ALAB-27, 4 AEC 652.
It is f ar too late to bring up these claims of error.
To refute these allegations point by point at this juncture would give an unwarranted semblence of credence to the charges.
.---- ~
.,r----
r -.:
It suf fices to observe _that{thej decisio(j6] app {ovs' copstrycJio(~]~_{
of Unit 2 of the Diablo Canyon p5 aid"Nas $tade (an[necessarih.y, the adequacy of the plant's seismic design was agreed to) by both the Licensing and Appeal Boards based on the evidence in 5/
the record.
This means that six different persons on the two Boards -- each with a broad legal or technical background --
_5/
Their reasons are fully explained in the decisions.
See Licensing Board Decision dated December 8,1970, 4 AEC 447 and the decision of the Appeal Board, ALAB-27, 4 AEC 652.
The actions taken by the applicant and agency staff in connection with the seismic matters both before and af ter issuance of the construction permit for Unit 2 are also discussed in the enclosure to the letter dated March 31, 1977, from Lee V. Gossick to Congressman Morris K.
Udall, referenced in the joint intervenors' motion.
joined in that assessment.-6/To clain now that my involvement in that decision, unanimously agreed to by all who were called upon to adjudge the matter, somehow foreshadows " partiality" in my consideration of the seismic issues currently under appeal goes beyond reason.
As a final natter, I reviewed the relevant Appeal Board 7/
opinions before coming to a firm decision.
I find nothing
~
in them requiring my recusation from the Appeal Board for this proceeding.
g
/
n
/
/
$<1
.e
/
,/
John H. Buck 6/
The Licensing Board members were:
James P. Gleason, a lawyer who later served as the elected chief executive
'of ficer for Montgomery County, Maryland; Thomas H. Pigford, Professor of Nuclear Engineering at the University of California at Berkeley (and recently a member of the Kemeny Co= mis sion) ; and Hugh C. Paxton, a physicist at the Los Alamos Scientific Laboratory.
The Appeal Board members Algie A. Wells, a long-time government lawyer and were:
administrator; Lawrence R. Quarles, and myself.
7/
In our Midland decision we reviewed the grounds on which a member of an adjudicatory body such as an Atomic Safety
~~
an6 Licensing Board may be disqualified.
An administrative trier "is subject to disqualification if he has a direct, if personal, substantial pecuniary interest in a result; if he has he has a ' personal bias' against a participant; served in a prosecutive or investigative role with regard to the same facts as are in issue; if he has prejudged factual -- as distinguished from legal or policy -- issues; or if he has engaged in conduct which gives the appearance of personal bias.cn: prejudgment of factual issues."
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-101, 6. AEC 60, 63 (1973).
Certainly none of these bases, save the last, has any possible relevance to the joint intervenors' accusations.
As to the last f a ctor, I have already covered it, supra.
s.q.. w a -
au u n,.
snn.-
.e.a n.
.wa a.m.
ss=.
+-
,w--~=-=~-a..
.eu
-u-x a s e.-a e
-~e-.
-a
.++ a a-=-a.6-+-
- - - - - - +,.
--e-
=> +
ms.-
m.~~st
. =.
.i.a.
a, Y
4
=
r h
O
+
e I
a e
i e
4 9
. Attachment 3
+
+-,,
, j. s.,,., _ _ _,. =--==>_
e 4 *
- [,
gh
- t 1
-i i
8 i
Y a
s 0
Y'
' if
+
b J
4 6
s
'h J
L t
r I
i 4
Y h
_... - -..,,,.- ~,.., - -,, -.......... - ~ - - -......
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
l In the Matter of:
)
)
i PACIFIC GAS & ELECTRIC
)
Docket Nos. 50-275 0.L.
COMPANY
)
50-323 0.L.
(Diablo Canyon Nuclear
)
Power Plant, Units 1 & 2)
)
)
t PETITION FOR REVIEW OF DECISION OF APPEAL BOARD MEMBER DR. JOHN H. BUCK Joint Intervenors request that the Comission review the decision of Dr. John H. Buck to remain on the Atomic Safety and Licensing Appeal Board ( " AS LAB " ), assigned to hear the pending Diablo Canyon seismic appeal.
The recusal
~
2 ;.. 1.
2._.r.
.r..m~;,n rt.,v: e nc ew
,.m i
tions of law and
.of Dr. Buck raises critic lly important ques-.- _.
.. s c. - _._. _._ :. g.._, m policy that were erroneously decided at the appeal level.
Therefore, under agency regulation 10 CFR 52.786, Dr. Buck's decision merits imediate review by the Commission.
I.
Administrative Action on March 13, 1980, Joint Intervenors requested that the Commission reconstitute the Diablo Canyon Appeal Board, or, in the alternative, refer to Dr. Buck the question of whether o
O 4
__________________________-_______-______-_m_______._-_____-____.._____..__.___.________________.________a
. he should recuse himself.
Accordingly, by order of March 21, 1980, the Consission directed Dr. Buck to consider the issue of his own qualification.
Three days later, Dr. Buck issued a " Memorandum to the Commission" in support of his decision to remain in the seismic proceeding.
That decision is the subject of this petition.
II.
Dr. Buck's Decision Dr. Buck decided, as a matter of law, that his having twice hdard and twice rejected the opinion of one of Joint
~
Inte,rvenors' key witnesses did not predispose him to reject the testimony of that witness in the forthcoming proceeding.
He also found that the prior rulings did not "suggest the appearance of personal bias" against the witness.
(Memorandum at 4).
In addition 3:Drs Eugkdismissede.out,,of -hand the plaim;n-y---- e that his participation in two prior appellate decisions.
i approving the Diablo Canyon seismic analysis casts doubt on his impartiality.
In his words:
"It is far too late to bring up these claims of error."
(Memorandum at 7).
He
)
" foreshadow" i
suggested that the prior Diablo rulings do not partiality, pointing to the fact that five other adjudicatory officers concurred in those erroneous decisions.
l j
6
. III.
Alleged Errors Although Dr. Buck concedes that adjudicatory impartial-ity is one of Joint Intervenors' #undamental due process rights, his characterization of those rights and the safe-guards i= posed by the courts to protect them is flawed.
Throughout the memorandum, Dr. Buck blurs the basic distinc-tion between an isolated charge of actual bias or prejudice and Joint Intervenors' legally and factually supported claims that the proceeding as a whole has not been attended i
with the requisite appearance of fairness.
Dr. Buck's decision also fails to dispel the serious inlications of his prior actions in the Diablo Canyon con-struction proceedings.
His dismissal of substantial, valid i
seismic concerns and his refusal to reopen the record to receive relev~sh~t',"F ~ed's'eisimi'c 'da'tX' an errot"*aricient tfstoryv" -~ i e ?.
n Joint Intervenors contend that those prior rulings create considerable public doubt regarding his ability to maintain total impartiality in the upcoming appeal.
That breakdown in public confidence merits much more than a passing comment i
from the interested official.
IV.
Commission Review The appointment of Dr. Buck to the Appeal Board for seismic issues in the highly controversial Diablo Canyon
. 1 y
e -
- -.,....n,<
.x
-4 licensing proceeding 'is not-consistent with procedural due process or the commitment of the agency to " safety first."
Dr. Buck's memorandum justifying his decision to remain on the Appeal Board can only heighten suspicions that his participation is not disinterested.
Therefore, under 10 CFR S2.786, the Commission should exercise its power to review the decision and resolve the important procedural policy questions it raises.
Conclusion For the reasons outlined above, the Joint Intervenors request the Commission to grant the petition for review.
I 4"
- F(['s.
.