ML20054C986
| ML20054C986 | |
| Person / Time | |
|---|---|
| Site: | 05000000, Diablo Canyon |
| Issue date: | 06/04/1974 |
| From: | Bettinger R PACIFIC GAS & ELECTRIC CO. |
| To: | PACIFIC GAS & ELECTRIC CO. |
| Shared Package | |
| ML20054C939 | List: |
| References | |
| FOIA-81-437 NUDOCS 8204220209 | |
| Download: ML20054C986 (10) | |
Text
.
Diablo Canyon NPP Meeting with AEC Staff Bethesda, Md.
June 4, 1974 (Notes reconstructed 3/31/80 from RVB Notes)
Present AEC Tom Hirons La.rry Chandler Jim Tourcellotte Dick De Young Roger Boyd Olin Parr Ed Case Joe Hendrie Harold Danton Carl Steppe Dick Me Mullen PGE J. D. Worthington W. J. Lindblad R. V. Bettinger Tom Hirons began the discussion by reviewing the events leading to the meeting.
When the operating license request was tendered by PGE it discur.r.ed the Hoskins-Griffith Fault. The AEC required more discussion and referred PGE to the USGS work. Then in November of 1973 there was the report of an offshore fault by USGS. In Dece=ber, POE Cid more of f shorc work.
In January 1974, the AEC r: quested zm infer:ntional meetinE in Menlo Park to discuss infor:r.4:.;on with USGS. This meeting was also called to discuss petition by intervenors te stop work. The outcome of this meeting was that the Stop Work petition was denied.
During the follouing 2 or 3 months the AIC was waiting for USGS and PGE. Late in April 1974 the AEC met with PCE and USGS f n Bethesda.
PGE presented.more discussions.
Staff and USGS asked, have you done all that should be done? Spec'ifically what about:
1.
Oil Company data.
2.
Announcement of "Open File" of Holly Wagner Data.
8204220209 811112 PDR FOIA ELLIOTT81-437 PDR Hirons said that the staff has not hed sufficiant explanaticn to concluds that the fault is not active. More specifically:
1 1.
Not suf ficient discussions as to why Hoskins-Griffith not capable.
2.
Not sufficient data relating Hoskins-Griffith to other faults.
Hendrie:
In last 2 years much experience gained in having adequate data to make a showing.
In our case if we had further exploration work it might affect the DBE. Considerable other questions requiring answers. This judgment takes into account the North Anna case and etc.
Hendrie thinks that the material we are about to give AEC is not adequate. /.dditional field work and more pulling together necessary. He felt they should not wait to tell us this after we submitted material as it would be helpful to both parties to make a good case. Afraid it won't make it in present state.
He thinks we need to go about it now and with great vigor.
Doesn't want to inflate the problem.
It has potential for a most profound effect..Before we get embedded in the proceedings should consider the cdequacy of or data.
JDWorthington asked, "Is there something you know that we don't?
Hendrie:
"No.
This reem==endation is based on their experience.
More is needed to carry the weight of most experts to a positive finding. They are attempting to be as candid as they can."
Denton:
l At time of the CP, the work was quite extensive for the time. No offshore indications at that time. However now the USGS poses three ways'to treat the matter:
1.
Not fault.
(This would be very hard to defend).
2.
Not a major faalt.
(Hare one would need to rely on much stronger structural f eature).
3.
Assume major fault but not capable.
to have any one of these lines clearly available.
We don't seem I
JDWorthington asked how we could demonstrate our case.
Steppe:
1.
Necessary to show relationship of H-G at South end to Transverse range.
Need to develop relationships.
It may require added reflection profiling.
It may be that oil ec=pany infor=ation would be sufficient.
2.
As to not being f ault, there seems to be too many questions needing answers to be able to resolve this.
e
Hendrie:
As practical matter if you are going to take some group paper you will have a problem. You need to develop your own data.
Steppe:
Thinks only offshore work is needed. He doesn't see need for trenching.
Case:
If you can show that there is no relation to the transverse ranges by offshore work that vould be okay. If you can't, Steppe says then you would
.need t.o review onshore work already done.
Steppe:
Another question also present. If H-G is shown to be a fault, is it a capable fault? This would require sedimentation data.
It is not clear from the presentation that you have an adequate structural profile. You may need to drill and/or bottom ss=ple.
Case:
The issue is that we need more data.
It would be helpful to have resolution from H-G.
WJLindblad:
Asked re application of Appendix A.
Denton said yes it applies. In our answers we will need to explore other indications.
MdP.ullen: ' Thinks that only bottom sanpling would be required.
Hendrie:
How well will your report support your contentions at a hearing?
Chnnaler:
Have you taken a pessimistic attitude and backfitted for a larger earthquake?
WJLindblad:
No.
Denton:
At another plant the applicant asse= bled a panel of er.perts to prepare a critique of the original report.
c
WJLindblad:
P We are using some other consultants.
Mc Mullen:
The eastern margin of the basin makes a sharp curve NW of site. We need to see if there is any relation between this and the Edna Fault.
De Young:
Thinks it is possible to meet current schedule. This would require a supplement by Sept.
(must be issued by AEC).
De Young asked Denton if'he felt current consultants were adequate.
Denton:
Yes, up to now.
Should be considering how to augment.
JDWorthington:
PG&E is interested in getting at work right away.
.f~
1,<f.,
../. %
4 L
R. V. BETTINGER Note that this is a 1980 reconstruction of handwritten notes taken at that meeting. Handwritten notes are attached.
RVB s
e 0
L /> L'y;- kA" C 76fa d e A /D b
c.9-7y -
p!nstr m bl Mc~ 7'A&A on VAL Y
b M
Mt-z%
L rst RetAL
/cG D
/M.C.
L1 nf VEd,MS S b L
~ %
f.
c)s o 2 ~ E4c re a' -
w?'a ' xA
' f &
.~: L
~
ZL.4 ~-
.:f J r & "e as&1.
?
Wof
$~A).
/' 'AA>: W4 pJ U.
~, z m
%f no Y S A. /. 1 & &,>u A e ] & p & 3 6 -
1%
v2
%42P-~'+J ~ di
"~'
L.
M Q A fi
,6JJ?
co g 2 6 ) & & S - o p l 1 7 / d f ] f
n yy
'a
,[A y f d '~
-r y
Mt4A
_a
~
9 GW AA 8 A-
- x W y
- +At,d p: A Q c.JyQ,.
u
~% s s
~
.3
,L n y Lgs um
'W~
=.
A C1 c2 MJALn 72Lat J&& AES A }J/'
anak d o/
J-[l' JJ 4
.p L M.
f^
2' ~ur A
s 4,
e
' N,-
K.
I
/
n w
4,AJ,e fx.cajuffs V
n
- s..
v/' W i2a t w m w
(
.Ada &&' -LcL&,V - T/L A s eu f. ?n - u &
ay
++
Q.)
O qR ovak e-bb,W5
}m.s A L,24u~
usss.
i
'QJ
' G Ww dTW v4 O"""Q,Ln. n W 2
~
tjP, ]f$ l s.
We
'm h
b,
~
l lO L L A& M n
& M-G. h -
- ual G T w e e Y
A'4
_4 m
e m
A W n n a p u A g w,e a
yg W,,y pn 5
/. m
W c.
e I
M
~~f
-s ax 2
n ed/dx u mA,de d &, L.
, g o n
. a?,(rts m@ d 4m c b-
-ast,
a a
n,a.M A2C~
f eL /
,, g O
~
7/A Z 2-4 g
1 w,
w/u&/L /,_,a 1
/T
/ Ak~~ &
/~n H-s, )
JL. -dA ap)LL% u fy A.
f L
&A ou d t-dM i
A,1,-
%-~sJ2 #p.n"fc r
w Gr a w Aa 14.
Y Y ", mYW x M e L - ~
ap. m@
.wAc m&
~
~3A 4
2-w o
'f e-a -
-r+ h,
Lin 4
_d,,- 4, w ya
- w AL A
rh p w/A f 9,a(~JLafad) e k7"ds./o% 8w W, GA=
L pg--
At
(
JD W
% Ad~ daf ah, & a! d n} N
~ "r
s ITINERARY W. J. Lindblad, J. D. Worthington, R. V. Bettinter Jiine 3 & 4 - Bethesda, Md June 3 Lv. S. F. - TWA Flight 800, 9:00 a.m.
Arr. Eethesda 5:04 p.(Du11es)
- riotel
)foliday Inn 5520 Wis:ensin Ave.
Chevy Chase, ifaryland 20015
- 101-656-1500, June 4 11eeting with AEC Regulatory Staff 9
- 30 a.m. - 12:00 p.m.
AEC Regulatory Office 7920 Norfolk Ave.
Room P-130 Bethesda, Md.
(For telephone messages during meeting, call lobby receptf.cnist - 301-973-7728.)l n
Lv. Dulles - TWA Flight 803, 5:40 p.m.
Arr. S. T. 8:16 p.m.
h.
~
Ror a va
\\f' l
.J II I
\\
\\
?
1 y,
q
.)
i l
m%
bNITED STATES 7 AMERICA NUCLEAR RECULATORY COMMISSION
[/
.g g USNR0 CCMMISSIONER:
'JUN 161980 * [5.
~~
CM:es115etemhg Joseph M. Hendrie g
D:v%g t. !cr. ice g/
fin:s O
a
~
~
\\
In the Matter of Docket Nos. 50-275 OL PACIFIC GAS AND ELECTRIC CQiPANY 50-323 OL (Diablo Canyon Nuclear Power Plant,
)
.\\
Units 1 & 2)
MD10RANDlJi TO COUNSEL FOR THE PARTIES On April 21, 1980 I issued a Memorendum To Counsel For The Parties describir g my prior involvement with seismic issues arising from the Diablo Canyon operating license application during the period I was Deputy Director for Technical Review, Directorate of Licensing, Atomic Energy Commission.
I detemired that I could not have been involved in the development of the AEC-NRC staff substantive position on the trerits of issues related to the exis-tence of the Hosgri fault and tentatively concluded that I would participate in the Commission. review of the Diablo Canyon operating license applications.
I invited the participants in this proceeding to comment on this matter.
The Joint Intervenors are the only party that commented.
In their May 5,1980 pleading, they suggested that I recuse myself from this pro-ceeding arguing that my participation violates the Commission's separation of functions regulations and the requirements of due process.
I have reviewed their arguments and have concluded that there is no legal bar to 9
my participation in this proceeding.
I therefore will participate.
bo 80.0_6_190(O L g- [d4[
e 2
10 CFR Section 2.719(d) provides:
Sec. 2.780(e)provided in paragraph (c) of this section and Except as
, in any case of adjudication, no officer or employee of the Commission who has engaged in the performance of any ] investigative or prosecuting function in the case of [ sic a factually related case may participate or advise in the initial or final decision, except as a witness or counsel in the proceedings.
Under this regulation, which codifies Section 5(d) of the Administrative Procedure Act, an NRC Commissioner may not participate in a decision if (1) the decision arises in the context of an administrative adjudication; and (2) as an AEC-NRC employee the Commissioner worked in a prosecuting or investigative role' on the very same case or a factually related one.
In the present matter there is no dispute that the review of the Diablo Canyon operating license applications arises in the context of an administra-tive adjudication and that I formerly served as an Atomic Energy Commission employee.
In the April 21, 1980 Pemorandum to Counsel, I stated that as an AEC employee I participated in the decision to docket the Diablo Canyon application and that I attended a June 4,1974 meeting with Pacific Gas &
l Electric Company (PG&E) officials.
At that meeting I expressed the view that 1
the information gathered as of that date by PG&E regarding the fault was not adequate and suggested that additional investigation was required.
In my Memorandum I also indicated that by the nature of my position with the AEC I may have attended other meetings with PG&E officials but that I had no recollec-tion of having attended any such meetings.
Based on this information, Joint Intervenors asserted that it "seems likely" that I attended a January 1974 meeting with United States Geological Survey officials to discuss evidence gathered regarding the existence and magnitude of the Hosgri fault and participated in 'the AEC decision to deny a o
3 December 13, 1973 motion filed by the Scientific Shoreline Preservation Conference calling for the suspension of construction at Diablo Canyon.
After reviewing Joint Intervenors' pleading, I requested Trip P.othschild of the Commission's Office of the General Counsel to contact counsel for Joint Intervenors, the NRC Staff, and PG&E to ascertain if they had additional
~
infomation regarding (a) my attendance at the several AEC meetings held with FG&E officials and (b) whether I participated in the development of the AEC response to the motion to suspend construction.
Philip Crane, Counsel for PG&E, informed Fr. Pothschild that PG&E has minutes of most, if not all, of the meetings PG&E officials had with the AEC staff held during my tenure with the AEC on the Diablo Canyon operating license applications and that these records indicate that the only neeting that I attended was the June 4 meeting.
James Tourtellotte, Counsel for the fiRC staff, reviewed his files and provided Mr. Rothschild with copies of all the pleadings filed in response to the December 3,1973 Scientific Shoreline Preservation Conference Petition to Suspend Construction. ftr. Tourtellotte, who served as AEC counsel during this period, infomed Mr. Rothschild that to the best of his knowledge I did not participate in the development of the AEC staff response to the petition.
An earlier review of AEC-fiRC records conducted in response to a FOIA request by Joint Intervenors had not uncovered any records indicating that I had participated in developing the staff response.
David Fleischaker, Counsel for Joint Intervenors, advised Mr. Rothschild that Joint Intervenors had no new infomation to provide on my prior partici-pation.
I believe that this infomation coupled with that provided in ey April 21 Menorandum provides an accurate description of my particiytion in the review
.m
4 of the Diablo Canyon application as an AEC staff member.
The legal questions raised by my prior participation are whether these activities are "investiga-tive or prosecuting" within the meaning of 10 CFA 2.719 and Section 5(d) of the Administrative Procedure Act, or whether the Constitution precludes my participation as a Commissioner in this proceeding.
The Commission's General Counsel has recently prepared an exhaustive legal analysis of the separation of functions requirements imposed by the Administrative Procedure Act and the Commission's implementing regulations.
See "A Study of the Separation of Functions and Ey( Parte Rules in Nuclear Regulatory Ccmmission Adjudications for Domestic Licensing", SECY 80-130, i
e NUREG-0670 at 76-102 (March 1980).
In that study, the General Counsel con-cluded that participating in the review of an application to operate a nuclear power reactor does not constitute the performance of an " investigative or i
prosecuting" function.
The General Counsel determined that for purposes of the APA and the Commission's regulations those terms applied only to proceed-ings in which the NRC was accusing a party of misconduct, or violating a statute or regulation -- e.g.,
imposing a fine against a plant operator or revoking an operator's ifcense because of misconduct.
I agree with the General Counsel's conclusion and his supporting analysis and refer the parties to his study for a complete analysis of the issue.
Joint Intervenors also claim that due process requires me to recuse myself from this proceeding.
It is argued that the fundamental requirement that proceedings not only be fair, but also appear to be fair would be violated if I were to participate as a Commissioner in an adjudicatory proceeding in which I had ' earlier participated as an AEC staff member.
Petitioners cite three cases for the proposition that disqualification is required: Trans World Airways v. CAB, 254 F.2d 90 (D.C. Cir.1958); Amos Treat & Como'any v.
U
,c-
5 Securities and Exchance Commission, 306 F.2d 260 (D.C. Cir.1962); and American General Insurance Comoany v. FTC, 589 F.2d 462 (1979).
In each of those cases the Commissioner whose participation was challenged had previously participated in the proceeding and had taken positions on the merits of the issues under adjudication.
As my April 21, 1980 Memorandum to Counsel for the Parties establishes, I never took a position on the merits of the seismic issues raised by the Diablo Canyon application.
The AEC staff did not even begin to formulate its positions on the merits and the record on which the Commission will base its decision was generated only after I had left the AEC.
The views I expressed at the June 4, 1974 meeting were prior to both those events, and in any event could not be considered prejudicial to joint intervenors since I suggested that PG&E's investigation of the fault to that date had not been adequate.
Consequently, I do not find these cases to be applicable to the present facts. Because my participation was at such an early stage in the proceeding, occurred over six years ago, and pertained only to whether the application was complete, I do not believe that due process requires me to disqualify myself.
In sum, my participation in this proceeding neither violates the Commis-sion's regulations nor the requirements of due process.
I therefore will continue to participate in this proceeding.
h M. Hendrie o
Dated at Washington, D.C.
-d O
this Nnday of VM, 1980.
v
- -.,