ML20247B511

Memorandum & Order CLI-89-18.* Denies Jj Macktal Motion That Commission Reconsider CLI-89-14 in Which Commission Declined to Disqualify from Deciding Future Matters Involving Macktal.W/Certificate of Svc.Served on 890911

ML20247B511
Person / Time
Site:	Comanche Peak
Issue date:	09/11/1989
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
References
CON-#389-9151 CLI-89-14, CLI-89-18, NUDOCS 8909130053
Download: ML20247B511 (6)

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3. uhui.C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

.g SEP 11 A10:11 COMMISSIONERS:

[0EEI;mfiYNvYdE Kenneth M. Carr, Chairman Thomas M. Roberts '

Kenneth C. Rogers ,

James k. Curtiss- . Sggygg ggp g y gggf n In re JOSEPH J. MACKTAL 01-4-89-008 MEMORANDUM AND ORDER CLI 18 I. Introduction This matter is before us on a motion by Mr. Joseph J. Macktal, asking that the Commission reconsider CLI-89-14, in which the Comission declined to disqualify itself from deciding any future matters involving Mr. Macktal. For the reasons stated herein, we deny the motion for i reconsideration.

1 II. Factual Background The facts are well known to those involved in this matter. We have set them out at length in our previous decisions and find no reason to restate them at any length here. See Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-89-06, 29 NRC 348(1989); In re Joseph J. Macktal, CLI-89-12, 29 NRC (June 22, 1989) ,

("Macktal 1"); In re Joseph J. Macktal, CLT-89-13, 30 NRC (July 5, 1

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1989)-("Macktal 2"); In re Joseph J. Mackal, CLI-89-14, 30 NRC -

(August 16,L1989)-("Macktal3").

Briefly, the Commission's Office of Investigations ("0I") issued a subpoena to Mr. Macktel on June 3,1989, seeking the specific details of his allegations regarding (1) a " bribe" to induce him to withdraw an -

employment' discrimination claim before the Departuent of Labor ("D0L") and

. (2)safetydefectsatComanchePeak. The subpoena requested Mr. Macktal's ,

appearance on June 15, 1989, at the NRC's 0I Office in Arlington, Texas, less than two hours drive from his residence.

Subsequently,'Mr. Macktal filed a motion for a protective order seeking to condition his appearance before OI. The Commission denied that request on June 22, 1989 and established a new return date of July 6, 1989. See Macktal 1. On July 3 shortly before the date he was to appear before Cossaission representatives, Mr. Macktal filed a motion seeking

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. reconsideration 'of that decision. The Commission denied that request on July 5',1989,: noting that the request did not stay Mr. Macktal's required appearance. See10C.F.R.I2.77)(c). See Macktal 2.

Mr. Macktal also filed a motion on July 3 seeking disqualification of the entire Commission from reviewing any further matters involving him.

The Coinnission denied this motion on August 16, 1989. See Macktal 3.

Mr. Macktal immediately filed a motion for reconsideration of that decision. It is that motion which now lies before us.

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III. Analysis Mr. Macktal bases his request on nine specific considerations which

. fall into three general categories. First, Mr. Macktal disputes the factual accuracy of specific statements in CLI-89-14 (paras.1, 2, 4, and 5). Second, Mr. Macktal complains generally about the Commission's treatment of "whistleblowers" and specifically about its treatment of his concerns (para. 6). Third, Mr. Macktal faults the application of the disqualification tests by the Commission in CLI-89-14 (paras. 3, 7, 8, and 10).

As to the claims of factual inaccuracy in CLI-89-14, Mr. Macktal has not presented any information which provides us with any reason to modii/

our earlier decision. Simply put, the Commission has been attempting to conduct a legitimate inquiry into some matters raised by Mr. Macktal. The inquiry is a matter within the Commission's responsibility and authority, in support of which the Commission's subpoena powert, have been appropriately invoked. 42 U.S.C. 5 2201c. Mr. Macktal has as yet failed {

to comply with the subpoena.

Mr. Macktal argues that the NRC Commissioners are biased and should be disqualified from further involvement in his " case", but he does not make any showing why individual Commissioners cannot participate fairly in decisions concerning the obtaining or use of information from him relevant to the Commission's jurisdiction. We believe the record indicates sensitivity to his concerns. Not only did we delete the portion of our i decision in CLI-88-12 which Mr. Macktal found offensive, but we also have directed DI to grant confidentiality to him if he can demonstrate that he meets the applicable criteria for confidential treatment. See Macktal 1, 3

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supra. We also agreed to select a date for return of the subpoena.which Mr. Macktal's attorneys advised us was convenient to both Mr. Macktal and L to themselves. p. Finally 'we selected a date which provided

- Mr. Macktal with 30 days' notice of the time for appearance from the -

issuance of.the original subpoena. Id.

Finally, we see no merit in Mr. Macktal's dissatisfaction with our .

application of disqualification tests in CLI-89-14 and accordingly no -)

reason to disturb our et.alier decision. We see n'o bias or prejudice, pervasive or otherwise, real or apparent, in the Consnission's interactions

- with Mr. Macktal.

However, Mr. Macktal: does raise a matter which will benefit from clarification here. He alleges that the Consnissioners failed to decide individually whether to recuse themselves, contrary to established agency procedure. We did-not depart from prior practice in CLI-89-14. When a party requests the disqualification of an individual member of a tribunal, such as ~a Consnissioner, that individual must make the initial decision.

See, n, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit.1), CLI-84-20, 20 NRC 1061 (1984) (Request for disqualification of ChairmanPalladino). .However, when a party requests the disqualification of more than one member of a tribunal, those members may issue a joint opinion in response to the motion. See, e_yt, Long Island Lighting Co.

(Shoreham Nuclear Power. Station, Unit 1), LBP-88-29, 28 NRC 637 (1988)

(Request _ for disqualification of e.wo members of a Licensing Board).

In.this case, Mr. Macktal requested the disqualification of all four current members of the Commission. Each member of the Commission reviewed that request and concluded that he could review matters arising in the 4

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future involving Mr. Macktal. The Comission then issued a joint opinion ruling on the request. Each individual member of the Comission decided the question of his own qualifications; no member of the Comission ruled on another member's right to participate. We simply saw no reason to issue four separate opinions.

IV. Conclusion We have reviewed the considerations advanced by Mr. Macktal and find -

that none of those considerations causes us to reconsider our decision in

.CLI-89-14. There continues to be no justification for us to disqualify ourselves from any proceeding to inquire into Mr. Macktal's allegations.

Therefore, we deny the motion.

,It is so ORDERED..

F the Commi sion

\(;,0 J a aw SAMUEL J.'1 MIL (

l Secretary of t ie Comission Dated at Rockville, Maryland this lith day of September,1989.

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y o UNITED STATES OF AMERICA

' NUCLEAR REGULATORY COMMISSION

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In re Joseph J. Macktal ) Docket No. 01-4-89-009

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CRCtifisate_9f_5s:viss I herebv certiev that a copy of the foregoing Commission Order.

has been served upon.the following person lby first class mail, postage prepaid and in accordance with the requirement of 10 CFR Sec.12.712.

Steven'M. Kohn. Esquire

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Counsel-for Joseph J. Macktal Kohn, Kohn & Colapinto, P.C.

517 Florida Avenue, NW Washington, DC 20001 I-Dated at Rockville, Maryland this 11 day of September, 1989 l.

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