re-executed affidavit of nondisclosure re licensee

tKITED STATES OP AZERICL

NUCLEAR REGULATORY COHiCI S S IOiW

ATO!11C SAFETY AND LICENSING APPEAL BOARD

)In thc Mn t ter of )

)PACIFIC GAS AND ELECTRIC COHPAitY )

)(Diablo Canyon Nuclear Power Plant,)

Units l and 2) ))

Docket Nos. 50-275 OL50-323 OL

DOO

Dt USNaC

p,PR,~4~980 ~

) gg Qtf+50 c'..~

pe~<> ~ pic~~~" gg h

AFFIDAVIT OF NQN- DISCLOSURE

Pp;I ~ ~ ~PNps being duly sworn, state:

l. As used in this Affidavit of Non-Disclosure,

(a) "Protected information" is (1) any form of the physical security

plan for the licensee's Diablo canyon Nuclear Power Plant, Units 1

and 2; or (2) any information dealing with or describing details of

that plan.

(b) An "author'"cd p~rson" is (I) .an employee of the Nuclear Regula-

tory Commission entitled to access to protected information; (2) a

person who, at the invitation of the Atomic Safety and Licensing

Appeal Board ("Appeal Board" ), has executed a, copy of this affidavit;

or (3) a person employed by Pacific Gas and Electric Company, the

licensee, and authorized by it in accordance with 'Commission regula-

anions to have access to protected information.

2. I shall not disclose protected information to anyone except an

authorized person, unless that information has previously been disclosed

in the public record of this proceeding. I will safeguard protected

8005216 4 5g

infozmation in written form (including any portions of transcripts

of in camera hearings, filed testimony or any oth'er documents that

contain such information), so that it remains at all times under the

control of an authorized person and is not disclosed to anyone else.

3- I will not reproduce any pzotected information by any means

without the Appeal Board's express approval or direction. So long

as I possess protected information, I shall continue to take these

precautions until further order of the Appeal Board.

4 I shall similarly safeguard and hold in confidence any data,

notes, or copies of protected information and all other papers whichJ

contain any protected information by means of the following:

(a) my use of the protected information will be made at a facility

in San Francisco to be made available by Pacific Gas and Electric Company

(b) I will keep and safeguard all such material in a safe to be obtained4

by intervenors at Pacific Gas and Electric Company's expense, after

consultation with Pacific Gas and Electric Company and to be located

at all 'times at the above designated location.

(c) Any secretarial work performed at my request or under my supervision

will be performed at the above location by one secretary of intervenor's

designation. Intervenors shall furnish Pacific Gas and Electric Company,

the Board and Staff an appropriate resume of the secretary's background

and experience.

(d) necessary typing and reproduction equipment will be urnished

by Pacific Gas and Electric Company.

(e) All intezvenor mailings involving protected information shall

be made from the facility furnished by Pacific Gas and Electric Co.

'

5. If I prepare papers'ontaining protected information in order

to participate in further proceedings in this case, I will assure that. any

secretary or other individual who must receive protected information in

order to hei me rp prepare those papers has executed an affidavit like

this one and has agreed to abide by its terms. Copies of any such

a f'd 't 'lla~zidavit will be filed with the Appeal Board before I reveal any protected

in=ormation to any such person.

6. I shall use protected information only for the purpose of

preparation for this proceeding or any further proceedings in this

case dealin withg security plan issues, and for no other purpose.

7. I shall kee ap record of all protected information in my possession,

xncludxng any copies of that information made by or for me. At the

conclusion o this proceeding, I shaI.l account to the Appeal Board

or to a Commission employee. designated by that Board for all the papers

or other materials containing protected information in my possession

and deliver them as provided herein. N>en I have finished using the

protected information they contain, but in no event later than the

conclus ion of this proceeding, I shall deliver those papers and materials

to the Appeal Board (or to a Commission employee designated by the

Board), together with al' nvtes a»d data ~hich contain protected information1

.or safekeep'ng during the lifetime of the plant.

8. I make this agreement with the following understandings:

(a) I do not waive ane any obgections that any other person may have to

executing an a fidavit such as this one; (b) I will not publicly discuss

or disclose an rotect dy p ed information that I receive by any means whatever.

9. ' affirm under penalty 'oE perjury under the laws cf the Uni ad

States that l will comply with the terms of this Affidavit of Non-Disclosure.

w( (<Ã

+~il7, i~if>

STATE OF CALIFORNIA

COIJNTV OF San FranciscoOn this ...?....h.......... day of........PER............ in the year one thousand nine

hundred anri 80 ........ before me,,Cynthia L. Wa'lke>a Notary Public, State of California, duly commissioned and stvorn, personally

appeared Yale I.r Jones~ ~ ~ ~ ~ ~ ~ ~ ~ ~ II ~ \0 I~ ~ \ ~

knotvn to me to be the person .... whose name ..7.S....,. subscribed to the rvithin

instrument and acknorvledged to me that .....he..... executed the same.

IN WITNESS WHEREOF I have hereunto set my hand and affixed my

officialseal in the....CR;<Z...k... County of ......S.....K:,...,.. the day and year

in this certificate first abov written.

Notary Public, State of California

My commission expires

Cowdery's Form No. 32-Acknowledgement-General (C. C. Sec. 1190a) Printed 12P2

- ~DotanwindA Grassroots Organization

.DOCKET HUI.lDEP,gR00, Ik UTILFIro,.RI=SP...5 Bred

DOCi(-»TED

QSQRC

APR 5 6~.<".~'ffice of th«««e'3I

Docketing E: Service=

Br h

APr '7 1 98O

Chairman Salaman,

IT would'.like to thank the= appeal board for moving

all attorneys involved including the extension oftime to al'low the Governor', representative to

the seismic hearing to San Luis Obispo. As an inteT-I'sted'bserverthe board seemed to deal fairly with

t:participate.The singulax'. outbursts from the crowd were

unfortunate, howevers I felt the general applause forpoints made by the intervenors attorney to show you the

countywide support should be acknowledged, if not

considered'n your final decision.I

This issue is of mahor significance to the

residents of San Luis Obispo county,'rrd we hope you

will'emember this as you &eview the case.

Si erely~ch/i~i.C~cl bile ecker

P.O. Box 808 Oceano, California 93445 ~ 805 481-2367

gp,S RE@II,P~4 0~ P~

I ~ I o

I~ ~O«w*«»

OFFICE OF THESECRETARY

Proceeding: PACIFIC

UNITED STATESCLEAR REGULATORY COMM!SSIOI

WASHINGTON, D.C. 20555

RE/JEST FOR REPORTING SERVICEWork Order No. IV-78-A

GAS 8 ELECTRIC CG4IPANY Diablo Can on *

Location of: PrehearingF irs t f1 oor CourtroomVeterans Memorial Bui1 din

50-275, 50-323Docket No.: (Security Plan)*

Hearing

801 Grand Avenue Grand 5 Palm StreetsSan Luis Obispo, California 93408

Contact: Mildred Burns, 805/549-5420

Meeting

Duration: Prehearing One da

Date of: Prehearing 4-2-80**

Time of: Prehearing 9:30 am***

Hearing

Hearing

Hearing

Meeting

Meeting

Meeting

Service Required: Prehearing

Hearing

Meeting

Board: Chairman Sa1 zman ; Membe rs Johns on, Moore

Type of Proceeding: CLOSED In Camera rehearin conference

Copies of the transcript map'may not) be sold.

Date'of oral request:

Date of confirmation:

3-28-80

3-31-80

By:

C. R. StephensDocketing and Service Branch

bcc: Mr. SalzmanELDASLAPAS LB P

Ms. HyltonMs. SlaterMr. FouchardRe

Special Instructions:

*Prehearin is CLOSED and IN CAMERA;copies may be so on y to t e awyerattending at the discretion of thec airman.

**Begin pagination of transcript withpage

**".Reporter should be available in thecourtroom 1 our e ore pre earingbegins.

~ ~/z.e/m

PQCKETED

Q USNRG

MAR 28 1980%

6 Office of the Secretary

P0cqeUng 8 ServiceBranch)'

)

)))))

Xn the Matter. of:CA

Docket Nos. 50-2 O.L.50 23 O.L.

PACIFIC GAS 6 ELECTRICCOMPANY(Diablo Canyon NuclearPower Plant, Units 1 & 2)

UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION

BEFORE THE COMMIS S ION

PETITION FOR REVIEW OF DECISIONOF APPEAL BOARD MEMBER

DR. JOHN H. BUCK

Joint Intervenors request that the Commission review

the decision of Dr. John H. Buck to remain on the Atomic

Safety and Licensing Appeal Board ("ASLAB"), assigned to

hear the pending Diablo Canyon seismic appeal. The recusal

of Dr. Buck raises critically important questions of law and

policy that were erroneously decided at the appeal level.Therefore, under agency regulation 10 CFR 52.786, Dr. Buck's

decision merits immediate review by the Commission.

I. Administrat-'e Action

On March 13, 19SO, Joint Intervenors requested that the

Commission reconstitute the Diablo Canyon Appeal Board, or,in the alternative, refer to Dr. Buck the question of whether

he should recuse himself. Accordingly, by order of March

21, 1980, the- Commission 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. 'hat decision

is the subject of this petition.XX. Dr. Buck's Decision

Dr. Buck decided, as a matter of law, that his having

twice heard and twice rejected the opinion of one of JointXntegvenors'ey witnesses did not predispose him to rejectthe 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).Xn addition, Dr. Buck dismissed out of hand the claim

that his participation in two prior appellate decisions

approving the Diablo Canyon seismic analysis casts doubt on

his impartiality.= Xn his words: "It is far too late to

bring up these claims, of error." (Memorandum at 7) . He

suggested that the prior Diablo rulings do not "foreshadow"

partiality, pointing to the fact that five other adjudicatory

officers concurred in those erroneous decisions.

3

III. Alle ed 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 imposed 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'egally and factually supported

claims that the proceeding as a whole has not been attended

h I' gp f fDr. Buck s decision also fails to dispel the serious

imlications of his prior actions in the Diablo Canyon con-

struction proceedings. His dismissal of substantial, valid

seismic concerns and his refusal to reopen the rec'ord to

receive relevant, new seismic data are not "ancient history."

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

from the interested official.IV. Commission Review

I

The appointment of Dr. Buck to the Appeal Board for

seismic issues in the highly controversial Diablo Canyon

licensing proceeding is not consistent with pxocedural 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. Therefoxe, under 10 CFR

g2.786, the Commission should exercise its power to review

the decision and resolve the important procedural policyquestions it raises.

Conclusion

For the reasons outlined above, the Joint lntervenors

request the Commission to grant the petition for'eview.

Respectfully submitted,

Qhikk~ Ctr

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 INTHE PUBLIC INTEREST10203 Santa Monica BoulevardFifth Floor(213) 879-5588

Attorneys For Joint IntervenorsSCENIC SHORELINE PRESERVATION

CONFERENCE~ INC.SAN LUIS OBISPO MOTHERS FOR PEACEECOLOGY ACTION CLUBSANDRA A. SILVERGORDON SILVERJOHN J. FORSTERELIZABETH APFELBERG

MARCH 28, 1980t

UNITED STATES OF AMERICANUCLEAR REGULATORY'OMMISSION

BEFORE THE COMMISSION

In the Matter of:PACIFIC GAS & ELECTRIC

COMPANY(Diablo Canyon Nuclear'ower Plant, Units 1 & 2)

Docket Nos. 50-275 O.L.50-323 O.L.

CERTIFICATE OF SERVICE

I hereby certify that on this 28th day of March, 1980,

I have served copies of the foregoing PETITION FOR REVIEW OF

DECISION OF APPEAL BOARD MEMBER DR. JOHN H. BUCK, mailing

them through the U.S. Mails, first-class, postage prepaid,

by Express Mail, and hand-delivery to those parties designated

by an asterisk. 'I

Joseph M. Hendrie,Commissioner

U.S. Nuclear RegulatoryCommission

1717 H Street, N.W.Washington, D.C. 20555

Victor GilinskygCommissioner

U.S. Nuclear RegulatoryCommis sion

1717 H Street, N.W.Washington, D.C. - 20555

Richard T. Kennedy,Commissioner

U.S. Nuclear RegulatoryComm'ssion


Peter A. Bradford,Commissioner

U.S. Nuclear RegulatoryCommis sion


John F. Ahearne,Chairman



Richard S. Salzman,Chairman

Atomic Safety & LicensingAppeal Board


4350 East West HighwayBethesda, Maryland 20014

Dr. W. Reed JohnsonAtomic Safety & Licensing

'Appeal Board* U.S. Nuclear Regulatory

Commis sion4350 East West HighwayBethesda, Maryland 20014

Dr. John H. BuckAtomic Safety & Licensing

Appeal BoardU.S. Nuclear Regulatory

Commis s ion4350 East West HighwayBethesda, Maryland 20014

Elizabeth S. Bowers, Esq.Chairman

Atomic Safety & LicensingBoard


Mail Drop East West 450Washington, D.C. 20555

Glenn O. BrightAtomic Safety & Licensing

BoardU.S. Nuclear Regulatory

CommissionMail Drop East West 450Washington, D.C. 20555

Dr. William E. MartinBattelle Memorial InstituteColumbus, Ohio 43201

Docket & Service SectionOffice of the SecretaryU.S.. Nuclear Regulatory

CommissionWashington, D.C. 20555

James R. Tourtellotte, Esq.L. Dow Davis, Esq.Mare R. Staenberg, Esq.Edward G. Ketchen, Esq.Office of the Executive Legal

Director - BETH 042U.S. Nuclear Regulatory


Mrs. Elizabeth Apfelbergc/o Nancy Culver192 Luneta DriveSan Luis Obispo, CA 93401

Mr. Frederick EisslerScenic Shoreline. Preservation

Conference, Inc.4623 More Mesa DriveSanta Barbara, CA 93105

Sandra A. Silver1760 Alisal StreetSan Luis Obispo, CA 93401

Gordon Silver1760 Alisal StreetSan Luis Obispo, CA 93401

John Phillips, Esq.Center For Law In The

Public Interest10203 Santa Monica BoulevardFifth FloorLos Angeles, CA 90067

Bruce Norton, Esq.3216 N. Third StreetSuite 202Phoenix, Arizona 85012

Mr. Yale I. Jones, Esq.100 Van Ness Avenue19th FloorSan Francisco, CA 94102

Andrew Baldwin, Esq.Friends of the Earth124 Spear StreetSan Francisco, CA 94105

Paul C. Valentine, Esq.321 Lytton AvenuePalo Alto, CA 94302

Janice E. Kerr, Esq.Lawrence Q. Garcia, Esq.J. Calvin Simpson, Esq.California Public Utilities

Commission5246 State Building350 McAllister StreetSan Francisco, CA 94102

Malcolm H. Furbush, Esq.Vice President and.General Counsel

Philip A. Crane, Esq.Pacific Gas & Electric. Company31st Floor77 Beale Street, Room 3127San Francisco, CA 94106

Arthur C. Gehr, Esq.Snell & Wilmer3100 Valley CenterPhoenix, Arizona 85073

Mrs. Raye Fleming1920 Mattie RoadShell Beach, CA 93449

MHB Technical Associates1723 Hamilton AvenueSuite KSan Jose, CA 95125

Carl NeiburgerTelegram TribuneP.O. Box 112San Luis Obispo, CA 93402

J. Anthony Kline, Esq.Legal Affairs Secretary to

the GovernorState Capitol BuildingSacramento, California 95814

Herbert H. Brown, Esq.* Hill, Christopher & Phillips

1900 M Street, N.W.Washington, D.C. 20036

Dave.d S. Fleischaker, Esq.



. DOCKEZOQSNFC

h'AR 28 '>SgyOesc.thsnc ~QÃMtCGZ:;ice

Se;cb

Zn the Matter of:PACIFIC GAS & ELECTRIC

COMPANY(Diablo Canyon NuclearPower Plant, Units 1 6 2)

')

)))))

Docket Nos. 50-275 O.L.50 O.L.

JOINT ZNTERVENORS'ESPONSE TO THEMEMORANDUM OF COMMZSSIONER KENNEDY

TO COUNSEL FOR THE PARTIES

The SAN LUIS OBISPO MOTHERS FOR PEACE, SCENIC

SHORELINE PRESERVATION CONFERENCE g ZNC ~ J ECOLOGY ACTION CLUB g

SANDRA SILVER@ GORDON SILVER@ ELXSABETH APFELBERG g JOHN J

FORSTER ("Joint Intervenors") hereby r'espond to Commissioner

Kennedy's invitation to interested parties to comment on his

interim decision to remain, in the Diablo Canyon Nuclear Power1/

Plant ("Diablo Canyon" ) proceedings. Ne call upon Com-

missioner Kennedy to 'retract his interim decision and recuse

himself from the Diablo Canyon proceedings. As a matter oflaw and sound policy, Commissioner Kennedy's decision is ill-founded. An examination of his memorandum setting forth the

basis for. that decision shows why that is the case.

1/ Memorandum to Counsel for the Parties at 6, (March 13,1980) (cited hereinafter as Memorandum to Counsel).

I~ THE MEMORANDUM TO COUNSEL FAILS TO ADDRESS ALLRELEVANT LEGAL REQUIREMENTS ~

Commissioner Kennedy has tentatively concluded

that "there is no basis for disqualification" arising from

his off-the-record meeting with top-level PGaE officials.His reasons include:

Ae

B.

There is no evidence of pre-existing bias orthat his "participation in this proceedingwill jeopardize Joint Intervenors'ight toa fair and impartial hearing."2/The secret meeting with PG&E executives didnot constitute an ex parte meeting withinthe meaning of the Admrnx.strative ProcedureAct (APA) or NRC Regulations.3/

C. The meeting does not support any inferenceof pre-existing bias or inability to fairlyconsider the Diablo proceeding.4/

D. In any event, he fully complied with the lawwhen he "elected to submit a memorandum de-tailing the substance of the October 19, 1979meeting."5/

However true or relevant those assertions may be, they do

not satisfy constitutional due process and statutory standards

as defined and applied by the courts to administrative agency

adjudicatory proceedings.

2/ Memorandum to Counsel at 4.

3/ Id. at 3.

4/ Id. at 4.

5/ Id. at 3.

A. Lack of Bias

The'mere statement of an interested agency officialthat he is not biased neither establishes in fact that no

'W

bias or prejudice exists, nor addresses the additional legal

requirement that administrative proceedings exhibit the

utmost appearance of fairness. That requirement was upheld

in two of the cases cited in the Commissioner's memorandum,

in which the courts stated:

[A]n administrative hearing 'must be attended,not only with every element of fairness butwith the very appearance of complete

fairness.'inderellaCareer and Finishin Schools, Inc.v. FTC, 425 F.2d 583, 391 (D.C. Cir. 1970), citingAmos Treat & Co. v. SEC, 306 F.2d 260, 267 (D.C.Cir. 1962).

Xn a third case, Jarrott v. Scrivener; 225 F. Supp. 827, 834

(D.D.C. 1964), the court wrote:

[A]ppearance of fairness and impartiality isprobably of as great importance as its attain-ment, if the public is to have confidence in thejudicial process.

Despite the unambiguous and numerous endorsements

of the "appearance of fairn'ess" doctrine in'he case law,

the Memorandum to Counsel contains no mention of that, doc-

trine. The failure to address that long-standing requi're-

ment is not offset by Commissioner Kennedy's subjective

statement: "I find myself fully capable of considering this

licensing proceeding in an unbiased manner, free of any6/

constraints on my independent judgment."

B. APA and NRC Re ulato Re uirements

Even though Commissioner Kennedy "carefully ex-7/

amined" the applicable'tatutory and regulatory requirements,

the Memorandum to Counsel suffers from several infirmities.First, f557(c) of the APA (Memorandum to Counsel, at 3) does

not mention ex parte communications or the reguisite duty of8/all administrative officials to avoid them. 'econd, the

main thrust of NRC regulations and the APA is not in the

requirement that ex parte communications he described in a

statement placed in'the public record. The primary intenth ' h'b'

on-the-record administrative proceedings are attended by

every appearance of fairness to the parties. 5 U.S.C.

5557 (d) (1) (A) and 10 CFR 52. 780 (a) .

Third, the Memorandum to Counsel suggests that the

off-the-record meeting between Commissioner Kennedy and top-

level PGGE officials to discuss matters particularly re-lating to Diahlo did not constitute an ex parte contact.

That interpretation is unacceptable. To the extent that it is


7/ Id. at 3.

8/ The pertinent APA section is g557(d)(1).

xs possible to glean the content .of the conversation ofOctober 19, 1979 from Commissioner Kennedy's sketchy notes,

zt a.s clear that the discussion violated the spirit and the

letter of the prohibition against ex parte meetings. The

[email protected] of discussion involved substantive decisions, in-cluding the nature of review that should be required of

.Dz.ablo Canyon; which, if any, of the new TMI issues should

be treated on a site-by-site basis; the level o'f response ofthe NRC staff to ACRS inquiries; and whether Diablo Canyon,

the only facility lying within 3 miles of a 7e5M earthquake

fault, should be treated exactly the same as other facili«W

tres. A mere label —"generic" or "procedural" —cannot

remove these substantive and project-specific aspects of the

conversation that took place. I

C Inference of Bias or Pre'udice

When Commissioner Kennedy met with the Chairman

and the President of PG&E, a utility whose highly contro-

versxal license application was pending before the NRC, the

appearance of fairness, if not the fact, of impartiality, was

essentially destroyed. Xt is impossible to ascertain from

the public record the duration of the meeting between the

Commissioner, his legal assistant and PG&E executives.

Moreover, it appears that the discussion was directed almost

solely to future agency action on the Diablo Canyon license

and PG&E's desire to obtain that license as soon as possible.

Counsel for the Joint Intervenors was not informed of, nor

invited to the meeting', even though he would have been able

and would have wanted to attend. As a result, the Commis-

sioner was presented with a one-sided version of the sub-

stantive matters raised by PGGE during the meeting.

Most important, the public and the Joint Intervenors,

as well as any reviewing court, will never know exactly what

words were spoken during the ex parte meeting because a

verbatim tianscript of the conversation was not kept. That

omission has led to decreased confidence in the ciedibilityof the Commission. And, the justifiable suspicions aroused

by the private, off-the-record, prearranged. meeting have not

been dispelled by the post hoc filing of a summary statementI

by Commissioner Kennedy. Even if the Commissioner did not '

9/"express any views on individual licensing proceedings,"

it seems all too likely that PG&E officials did. It is that

possibility that has led the public to doubt the impartial-

ity of future proceedings.

D. The Public Record

If, as Commissioner Kennedy implies, the APA and

NRC regulations require only that ex parte communications be

noted in 'the public record to satisfy due process requirements

9/ Memorandum to Counsel at: 4.

of a fair hearing and impartial tribunal, and adjudicatory

officer j.s free to engage in any type of discussion, at any

time, in any manner he or a party to a licensing proceeding

determines —so long as a post, hoc statement is filed in

the Public Documents Room. Such a distortion of adminis-

trative law is unthinkable.

Compliance with subsection (1) (C) of 5 U.S.C.

5557 (d) and subsection (a) of 10 CFR g2. 780 does not absolveI

the communications of their ex parte nature or the agency

official of the taint of the unlawful contact. The public

and the other parties to the proceeding that were excluded

from the meeting have no means of determining or contesting

the contentions raised during the private meetings among

highest-level utility and Commission officials. The memo-I

randum placed on file at the Public Documents Room is

sketchy and ambiguous. Therefore, it is impossible for

those parties, or a reviewing court, to determine whether or

not a fair hearing, on-the-record, can be provided.

II THE MEMORANDUM FAILS TO ADDRESS THE SUBSTANTIVEALLEGATIONS RAISED IN JOINT INTERVENORS'OTION

The Memorandum to Counsel implies that Joint

Intervenors'otion was addressed only to the possibility of10/

his bias in favor of PgaE because of the ex parte meeting.

10/ Memorandum to Counsel.

If that opinion were correct, perhaps Commissioner Kennedy's

Memorandum to Counsel would constitute an adequate response

to the motion; However, that motion was not grounded solely

on an objective claim of actual prejudice, but also raised

legally cognizable issues regarding the overall appearance

of fairness of the Diablo Canyon proceeding if Commissioner11/

Kennedy continues to participate. Therefore, the Commis-

sioner's conclusion that Joint Intervenors "have not met

their burden of establishing prejudice, bias, or prejudgment,12/

of issues on my part" must be rejected.

Moreover, while it is true that the "burden of

establishing prejudice, bias, or prejudgment" is upon the

petitioner, the burden of coming forward with 'credible

evidence, rather than cursory summaries of past events, toI

refute all the valid claims raised by Joint Intervenors,

including the violation of administrative regulations and

failure to safeguard the appearance of fairness, is upon the

Commissioner. Commissioner Kennedy has not met that burden.

III. THE EX PARTE MEETING.

In previous filings in this matter, the Joint

Intervenors have detailed the subjects discussed during the

Joint Intervenors'eply to the Staff's and Applicant.'sresponse to the Motions to Institute Proceedings onthe Qualifications of Chairman Joseph M. Hendrie andCommissioner Richard T. Kennedy, at 3-5, dated November23, 1979.

12/ Memorandum"to Counsel at 4.

09

s

ex parte conversaCion that clearly were not "generic" or

"procedural" in nature. Those arguments will not, be re-

peated here. 'However, it should be pointed out that many

aspects of the ex par0e meeting, glossed over in the Memo-

randum to Counsel, remain unresolved. The public statement

filed after the meeting took place is lacking in detail and

is highly ambiguous. Also, Commissioner Kennedy refuses toconcede that the conversation constituted an ex parte con-

tact, desprte the opposite conclusion of Commissioner Hendrie

who received a similar visit by the same top PG&E executives

on the same day. Therefore, Commissioner Kennedy's contin-ued characterization of the discussion as essentially "genericgeneric,

and his insistance that he expressed no views as to the

operating license, only serve to avoid real issues raised by

Joint Intervenors'otion.

Did Commissioner Kennedy know that asimilar meeting was requested by andgranted to the PG&E officials by Com-missioner Hendrie on the very same day?

Did the two Commissioners discuss eithervisit with one another, and if so whenand for what purpose?

In addition, .the Memorandum to Counsel raises or

leaves unanswered a number of vital questions, including-ing:

(l)

(3) Nhy, when he knew or should have known ofPG&E's intense efforts to obtain alicense for Diablo Canyon and that thecontroverisal license application, thesubject of a contested proceeding, wouldsoon be before him for a final decision,didn't Commissioner Kennedy have theNRC's General Counsel instruct PG&E, inadvance of the meeting, that, discussionsregarding Diablo Canyon would not bepermitted?

10

(4) Why didn't the Commissioner initiallyinstruct PG&E executives to speak di-rectly with an NRC official who is notin the adjudicatory branch of the NRC?

(5') 'ow long did the meeting last'

(6) Why was counse'1 for the Joint Interven»ors excluded from the so-called genericdiscussion.

(7) Why was no verbatim transcript of themeeting kept?

CONCLUSION

The interim decision of Commissioner Kennedy, and

his reasons therefor, do not adequately respond to the Joint.

Intervenors'equest that he recuse himself. That decisionI

should be retracted, and Commissioner Kennedy should recuse

himself from this proceeding.


David S. Fleischaker, Esq.1735 Eye Street, N.W.Suite 709Washington, D.C. 20006(202) 638-6070

John R. Phillips, Esq.CENTER FOR LAW INTHE PUBLIC INTEREST10203 Santa Monica BoulevardFifth FloorLos Angeles, California 90067(213) 879- 5588


CONFERENCE'INC.SAN LUIS OBISPO MOTHERS FOR PEACEECOLOGY ACTION CLUBSANDRA A. SILVERGORDON SILVERJOHN J. FORSTERELIZABETH APFELBERG

MARCH 26, 1980

~ gN

UNITED STATES OF AMERICA,NUCLEAR REGULATORY COMMISSION


GQClCZTag

USNRC

MAR 2 S g8p@, ~g

Otficsef~g~q, DCQZQ~+

Srzvh'~*

~)

In the Matter of:PACIFIC GAS 6 ELECTRIC

COMPANY(Diablo Canyon NuclearPower Plant, Units 1 &

.~ )

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2) ))

Docket Nos. 50-275 O.L.50-323 O.L. "

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JOXNT INTERVENORS'ESPONSE TO THEMEMORANDUM OF COMMISSIONER HENDRIE

TO COUNSEL FOR THE PARTIES

The SAN LUIS OBISPO MOTHERS FOR PEACE, SCENIC SHORE-

LINE PRESERVATION CONFERENCE ~ XNC ~ g ECOLOGY ACTION CLUB g SANDRA

SILVERg GORDON SILVERg ELIZABETH APFELBERG~ JOHN J. FORSTER

("Joint Intervenors"). hereby respond to Commissioner Hendrie's

invitation to interested parties to comment on his interim

decision to remain in the Diablo Canyon Nuclear Power Plant1/

("Diablo Canyon" ) proceedings. We call upon Commissioner

Hendrie to retract his interim decision and recuse himself

from the Diablo Canyon proceedings. As a matter of law and

sound policy, Commissioner Hendrie's decision is ill-founded.

An examination of his memorandum setting forth the basis for

that decision shows why that is the case.

1/ Memorandum to Counsel for the Parties at 6, (March 13,1980) (cited hereinafter as Memorandum to Counsel) .

I. THE MEMORANDUM TO COUNSEL FAILS TO ADDRESSALL RELEVANT LEGAL

REQUIREMENTS'lthough

Commissioner Hendrie has conceded thath

the October meeting with high-level executives of PGGE

constituted an ex parte communication, he asserts, as a.

matter of law, that there is no basis for disqualification,for the following reasons:

A~

B.

C.

He is "not biased in favor or against" anyparty to the proceeding and he has not,"lost his independence of judgment" in theproceeding.2/

The Administrative Procedure Act (APA) andNRC regulations do not require that a Com-missioner disqualify himself "solely becausehe received an ex parte communication."3/

The ex parte meeting is not sufficient basisfor any inference that he is biased or thatfuture proceedings will be unfair.4/

D. In any event, he complied with the law 'by..placing a memorandum in the public recordsetting forth the substance of the ex partecommun'ication. 5/

However true or relevant those assertions may'e, they do

not satisfy constitutional due process and statutory stand-

ards as defined and applied by the courts to administrative

agency adjudicatory proceedings.


3/ Id. at 4.

4/ Id.5/ Id. at 3.

A. Lack of Bias

The mere statement of an interested agency officialthat he is not biased neither establishes in fact that no bias

or prejudice exists, nor addresses the additional legal re-

quirement that administrative proceedings exhibit the utmost

appearance of fairness. Th'at requirement was upheld in,three of the cases cited in the Commissioner's memorandum,

in which the courts stated:

[A]n administrative hearing 'must be attended,not only with every element of fairness butwith the very appearance of complete

fairness.'inderellaCareer and Finishin Schools, Inc.v. FTC, 425 F.2d 583, 591 (D.C. Car. 1970), citingAmos Treat 6 Co. v. SEC, 306 F.2d 260, 267 (D.C.Car.

[A]ppearance of fairness and impartiality isprobably of as great importance as its attainment,if the public is to have confidence in the judicialprocess. Jarrott v. Scrivener, 225 F. Supp.827, 834 (D.D.C. 1964).

Despite the unambiguous and. numerous endorsements

of the "appearance of fairness" doctrine in the case law,

Commissioner Hendrie's memorandum contains no mention ofthat doctrine.

B. APA and NRC Re ulator Re uirements

Commissioner Hendrie's assurance that he has found

no decision requiring a Commissioner to disqualify himself

from a proceeding solely because be received an er parte6/

communication ignores the import of decisions that have

6/ Memorandum to Counsel at, 4.

overturned agency orders and remanded cases for new hearings

before a. disinterested panel, because of improper ex parte

communications. For the sake of brevity, only one case willbe discussed. Zn Jarrott v. Scrivener, 225 F. Supp. 827

(D.D.C. 1964) (cited by Commissioner Hendrie on page four ofthe Memorandum to Counsel), the court overturned a decision

of the administrative board, some of whose members had

received verbal and written ex parte communications, ev'en

though the affected board members denied being influenced by

the communications. Taking into account "the frailties and

infirmities of human nature," and the overriding importance

of the appearance of fairness, the court determined that it7/

should remand the case for a new hearing. Xt also instructed

that a special board be constituted "for hearing this particu-I

lar appeal," from which the agency members who had received8/

ex parte contacts would be excluded.

See also, San amon Valle Television Cor . v.

United States, 269 F.2d 221 (D.C. Cir. 1959); Berkshire

Em lo ees Ass'n. v. National Labor R. Bd., 121 F.2d 235,

239 (3rd Cir. 1949).

7/ According to the 'court, a remand for investigation of theclaims of prejudice would be futile, since the board wasnot qualified to investigate itself. Jarrott, 225 F. Supp.at 835.

8/ The court explained: "Xt would likewise be inappropriateand futile for this case to be reheard by the present Board

which has already been und~er t e influence of thecontacts referred to." (Emphasis in original. ) Zd. at 836.

C. Inference of Bias or Pre'udice

When Commissioner Hendrie met with the Chairman,

and the President of PGaE, a utility whose highly controver-

sial license application was pending before the NRC, the

appearance of fairness, if not the fact of impartiality, was

essentially destroyed. For more than half an hour, Commis-

sioner Hendrie and the NRC's General Counsel participated in

a discussion directed almost solely to future agency action

on the Diablo Canyon license. Counsel for the Joint Inter-

venors was not informed of, nor invited to the meeting, even

though he would have been able and would have wanted to

attend. As a result, the Commissioner was presented with a

b'ne-sidedversion of the substantive matters raised by PGGE

during the meeting.I

Most important, the public and the Joint Inter-

venors, as well as any reviewing court, will never know

exactly what words were spoken during the ex parte meetingh

because a verbatim transcript of the conversation was not

kept. That omission has led to decreased confidence in the

credibility of the Commission. And, the justifiable sus-

picions aroused by the secret meeting have not been dis-

pelled by the post, hoc filing of a summary statement by

Commissioner Hendrie.

D. The Public Record

If, as the Memorandum to Counsel implies, the APA

and NRC regulations reguire only that ex parte communications

be noted in the public record to satisfy due process re-

quirements of a fair hearing and impartial tribunal, any

adjudicatory officer is free to engage in any type of dis-

cussion, at any time, in any manner he or a party to a

licensing proceeding determines —so long as a post hoc

statement is filed in the Public Documents Room. Such a

distortion of administrative law is unthinkable.I

Section 557(d) of the APA and 10 CFR 52.780

commence with a prohibition of the type of ex parte communi-

cation involved in this case. 5 U. S.C. 5557 (d) (1) (A) andI

(B); 10 CFR 52. 780 (a) . The rigorous standards set forth in

those provisions require that a Commissioner be both unbiased

and free from the appearance of prejudice that ex parte

discussions impart. Therefore, the fact that CommissionerI

Hendrie allowed PG&E officials to discuss matters particu-

larly relating to Diablo for over half an hour unquestion-

ably violated those provisions.

Compliance with subsequent subsections of the

above-mentioned APA and NRC regulatory provisions does not

absolve the communications of their ex parte nature or the

agency official of the taint of the unlawful contact. The

public and the other parties,to the proceeding that were

excluded from the meeting have no means of determining or

contesting the contentions raised during the private, off-the-record, prearranged meetings among highest-level utilityand Commission officials. Therefore, it is impossible forthose parties, or a reviewing court, to determine whether or

not a fair hearing, on-the-record, can be provided.

IX. THE MEMORANDUM PAILS TO ADDRESS THE SUBSTANTIVEALLEGATIONS RAISED IN JOINT INTERVENORS'OTION

The Memorandum to Counsel implies. that JointXntervenors'otion was addressed only to the possibility

Memorandum to Counsel would constitute an adequate response tothe motion. However, that motion was not. grounded solely on an

abjective claim of actual prejudice, but also raised legallycognizable issues regarding the overall appearance of fair-ness of the Diablo Canyon proceeding if Commissioner He d

10/n rxe

continues to participate. Therefore, the Commissioner's

conclusion that Joint Xntervenors "have not established a11/

case for disqualification... " must be rejected.

~ ~ ~9/

of has bras xn favor of'GsE because of the er parte meetinex par e see lng.~ ~Xf that ops.nzon were correct, perhaps Commissioner Hendrie's

9/

10/

Memorandum to„Counsel, at l.Joint Xntervenors'eply to the Staff's and Applicant'sResponses to the Motions to Institute Proceedings on theQualifications of Chairman Joseph M. Hendrie and Commission-er Richard T. Kennedy, at 3-5, dated November 23, 1979.

11/ Memorandum to Counsel, at 1-2.

Moveover, while it is true that the "burden of12/

establishing bias is upon the petitioner," the burden of

coming forward with credible evidence to refute all the

valid claims raised by Joint Intervenors, including the

violation of administrative regulations and failure to

safeguard the appearance of fairness, is upon the Commis-

- sioner. Commissioner Hendrie has not met that burden.

ZZZ. TEE EX PERTE NEETXNG

In previous filings in this matter, the Joint

Intervenors have detailed the subjects discussed during the

ex parte conversation that clearly were not "generic" or

procedural" in nature. Those arguments will not be repeated

here, since Commissioner Hendrie has conceded that the con-I

versation did constitute a prohibited ex parte communication

under the relevant laws. Also', further argument should not

be necessary to demonstrate that the manner in which TMI

issues will be addressed by the NRC staff d~irectl pertains

"to whether the Diablo Facility Canyon [sic] application for13/

an operating license should be issued."

.The Memorandum to Counsel must be rejected because

the Commissioner's continued characterization of the ex parte


13/ Id. at 5.

discussion as essentially "generic," and his insistance that,

he expressed no views as to the operating license, miscon-

strue the real issues raised by Joint Xntervenors'otion.

Zn addition, the memorandum raises or leaves unanswered a

number of vital questions, including:

Why did Commissioner Hendrie agree tomeet with PG&E's highest, officials, evenbefore determining their reasons for themeeting?

(2)

(4)

Why, when he knew or should have knownof PG&E's intense efforts to obtain a.license for Diablo Canyon and that thecontroversial license application, thesubject of a contested proceeding, wouldsoon be before him for a final decision,didn't Chairman Hendrie have the NRC'sGeneral Counsel instruct PG&E in advanceof the meeting, that discussions regard-ing Diablo„Canyon would not be permitted?

Why didn't the Commissioner initiallyinstruct PG&E officials to speak aboutDiablo Canyon directly with NRC Staff(e.g., Dr. Harold Denton) who is not inthe adjudicatory branch of the NRC?

Why did the Commissioner and GeneralCounsel not end the meeting when itbecame obvious that PG&E officials werefocusing the discussion on substantiveDiablo issues'?

(5)

(6)

Why was no verbatim transcript of themeeting kept?

t

Why was counsel for the Joint Zntervenorsexcluded from the 'so-called generic dis-cussion?

Why was the General Counsel instructedto research the matter days after theconversation rather than two days priorto the meeting when General Counselobtained "a detailed description" ofwhat PG&E wished to discuss?14/


10

(8) Why isn't a request that Diablo betreated the same as all PWR's, eventhough it is the only facility within 3miles of a 7.SM earthquake fault, asubstantive demand going to the meritsof a license application?

(9} Why did Mr. Mielke bring up the need forpower in California —an issue whollyirrelevant to the NRC's jurisdictionover safety matters —if not to encour-age the Commissioner to expedite licens-ing of the plant?15/

CONCLUSION

The interim decision of Commissioner Hendrie, and

his reasons therefor, do not adequately respond to the ZointIntervenors'equest that. he recuse himself. That decision

should be retracted, and Commissioner .Hendrie should recuse

himself from this proceeding.

15/ Jarrott, described supra. p.4, also involved ex partecommunrcations with the presiding board. The courtwrote: "[Ex parte contacts involve] an assurance thatthere is no thought of asking the person contacted to doother. than his duty, followed by an expression of hopethat his duty will incline him in the direction described.In the vernacular, . . . this insidious approach is knownas the 'soft approach'r 'soft touch'." Jarrott, 22S F.Supp. at 834.


Dwg(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 INTHE PUBLIC INTEREST10203 Santa Monica BoulevardFifth FloorLos Angeles, California 90067(213) 879-5588


CONFERENCE,'NC.SAN LUIS OBISPO MOTHERS FOR PEACEECOLOGY ACTION CLUBSANDRA A SILVERGORDON SILVERJOHN J. FORSTERELIZABETH APFELBERG

MARCH 26, 1980

~ .

UNITED STATES OF ANERICANUCLEAR REGULATORY CONNISSION

* 'At'omic Sa'fet' arid L'ic'ensin' Board

Herbert Grossman, ChairmanGlerin O.. Bright,.Member

.Dr . Richard F. Cole, Nember .

DOCKETEDUSNRG

MAR 2 8 19801

G. Office of Se SecrehqfDocketing g Service

Br> ch

V S

In the Natter of ))

NORTHERN INDIANA PUBLIC SERVICE ))))

Docket No. 50-367

(Construction, Permit Extension)

ORDER REQUESTING VIEWS CONCERNINGPREHEARING CONFERENCE'RANSCRIPT

The Board has concluded that there are apparent defi-ciencies in the transcript of the special prehearing conference

held on March 12 - 13, 1980. It requests that each of the parti-cipants in that conference respond on or before April 11, 1980

to the following questions:

1. What was your opinion of the quality of the transcript72. Can you suggest any method for correcting the transcript

so that the positions of the parties as stated at the

conference can be fairly reflected'3. What would you propose that the Board do with respect to

the special prehearing conference already held.and the

transcript of that conference, in vi.ew of the apparent

deficiencies in that transcriptfAny suggestion or observation that a participant may have withregard to the transcript or the special prehearin conferenceg

relating to the poor quality of .the transcript should be addressed

in the response notwithstanding that it may not be covered in the

specific questions posed.

BY ORDER OF THE BOARD

FOR THE ATOMXC SAFETY ANDLICENSING BOARD

er ert rossman, airman

Dated at Bethesda, Maryland

this 28th day of March, 1980.

TELEPHONE 202 638.6070

DAVID S. FLEISCHAKERATTORNEY AT LAW

March 26, 1980I73S EYE STREET N.W.

WASHINGTON. D. C. 20006SUITE 709


Atomic Safety and LicensingAppeal Panel


4350 East'West HighwayBethesda, Maryl,and 20014

Dr. W. Reed JohnsonAtomic Safety and Licensing

Appeal PanelU.S. Nuclear Regulatory

Commission4350 East West HighwayBethesda, Maryland 20014

Dr. John H. BuckAtomic Safety and Licensing


Commission4350 East West HighwayBethesda, Maryland 20014

Re: Pacific. Gas & Electric Co.(Diablo Canyon NuclearPower Plant, Units 1 & 2)Docket Nos. 50-275 O.L. &50-323 O.L. — Board Notifi-cation

Gentlemen:

Consistent with the Atomic Safety and Licensing AppealBoard's directive that all parties should bring to itsattention new information which is relevant and material tothe matters being adjudicated;1/ counsel provides the follow-ing information recently .discovered during the course ofpreparation for the upcoming oral argument.

1/ Duke Power Co. William B. McGuire Nuclear StationUnits 1 and 2 ALAB-143; 6 AEC 623 1973

Ri chard S. Sal zmanDr. M. Reed JohnsonDr. John H. BuckMarch 26, 1980Page Two

First, the USGS has issued Circular 795, an update onCircular 672. Circular 795 contains the following conclu-sions pertinent to issues before the Appeal Board.

. 1. After considering the physics of the faultingprocess, the few available data close tofaults, and the modifying effects of surfacetopography, at the present time it would be

- difficult to accept estimates less than about0.8g, 110cm/s and 40cm, respectively, for themean values of peak acceleration, velocity,and displacement at rock sites within 5km offault rupture in a magnitude 6.5 earthquake.These estimates can be expected to change asmore data becomes available.2/

2. Above magnitude 6.5 there are essentially nodata for estimating the effect of magnitudeon near-fault peak accelerations, velocityand displacement, other than the static faultoffset as a bound on the peak displacement.Conservativism requires the presumption ofsome increase with magnitude.3/

The report was "prepared on behalf of the NuclearRegulatory Commission." I am advised by one of the authorsthat it was listed in the USGS "open<file" as a draft reportin June 1978; it was distributed at the International Con-ference on Microzonation on November 26, 1978 in San Francisco,California; apd it was listed in the index of new publicationsin January, 1979. A'opy of USGS Circular 795 is enclosed.

Second, I am advised by Dr. Clarence Hall that shortlyafter close of the evidentiary hearings, USGS Open FileReport 79-385 "San Gregor io-Hosgri Fault Zone, A ReducedEstimate of Maximum Displacement," by Vi Seiders, January

2/ USGS Circular 795 at l.3/ Id. at 25.

Richard S. SalzmanDr. W. Reed JohnsonDr. John H. BuckMarch 26, 1980Page Three

1979, (Joint Intervenors'xhibit No. 110), was withdrawnfrom the USGS open file. This report, among other evidence,was relied upon by the Licensing Board in 'rejecting thetestimony of Drs. Hall and Graham. 'BP-79-26, 10 NRC(September 27, 1979) (~Sli . ~0 ., Part III, at 40.)

Very tr uly yours,

David S. Fleischaker, Esq.Counsel For Joint Intervenors

DSF:sbEncl osur ecc: El i zabeth S. Bowers

Glenn 0. BrightWilliam E.'artinDocket 5 Service SectionJames R. TourtellotteL. Dow DavisNarc .R. StaenbergEdward G. KetchenElizabeth Apfelberg

~ Frederick EisslerSandra A. SilverGordon SilverJohn PhillipsBruce NortonYale I. JonesAndrew BaldwinPaul C. ValentineJanice E. KerrLawrence Q. GarciaJ. Calvin SimpsonMalcolm H. FurbushPhilip A. CraneArthur C. GehrRaye FlemingMHB Technical AssociatesCarl NeiburgerJ. Anthony KlineHerbert H. Brown

(w/encl.)(w/o encl-.)

II

(w/encl . )

(w/o encl.)

II

(w/encl.)w/o encl.)

II

(w/encl.)(w/o encl.')

II


John H. BuckMember, Appeal Board

iJGCl(i" i ~0~ l,,a 44aa ~ C V

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F

Sra r9

In the Matter of

PACIFIC GAS 6 ELECTRICCOMPANY,'Diablo

Canyon Nuclear PowerPlant, Units 1 and 2)

)

)))

-)))))

Docket Nos. 50-27 OL23 OL~

MEMORANDUM TO THE COMMISSION

March 24,,1980

On March 13, 1980, joint intervenors filed with the

Commission a request that it either take upon itself the

hearing of the appeal on .the seismic issues now before

the Appeal Board or reconstitute the Appeal Board ko 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 Commission "refer to Dr. Buck

the question as to whether, in view of the argument citedI

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, ll NRC ) the Commission

has done so. This memorandum responds to that directive.

That a right. to a hearing before an impartial tribunalis a fundamental requirement is'not at question. What must.

be decided is whether my continuation on the Appeal Board

jeopardizes joint intervenors'ue process rights, thereforerequiring my recusation from the Board. Joint, intervenorsdo not allege actual inability on my part to deal objectivelywith 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 intervenors charge that my appointment tothis Board may "violate the appearance of impartiality" because

I may have " 'difficulty in putting aside previously expressed

views'elevant to the seismic issues on appeal," and that Ihave a "preconceived attitude toward those issues." Id., pp. 14-16.

The joint intervenors cite tw'o 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

involved in the proceeding at bar. Having twice rejected

his opinions, they say, I am "predisposed to do the same

here." Motion, p. 16 ~ This ground is simply insufficient,

in law and fact. The Supreme Court

approval that "judges frequently try the same case more

than once and decide ident'.cal issues each time." FTC v.

Cement Institute, 333 U.S. 683, 703 (1947) . Certainly, a

stronger constitutional compulsion is not imposed on an

agency adjudication in this respect. Ibid.

The joint intervenors base their "appearance" of par-

tiality claim on the following circumstances. Dr. Trifunac1/

appeared in these earlier proceedings to give expert

testimony on the relationship between earthquake intensity

and the resulting 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 staff 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

Public Servic'e Com an of New Ham 'shire (Seabrook Station,Units 1 and 2 , ALAB-422, 6 NRC 33 1977) and Consol'i;datedEdison Com an of New York (Indian Point, Units 1, 2 and 3),ALAB 436 g 6 NRC 547 (1977) ~

. Dr. Trifunac differed from the other witnesses in the value

of acceleration which the reactors at the two sites should

be built to withstand. Zn each case, on the evidence pre-

sented, the majority members of the two Boards decided thatn

Dr. Trifunac's opinion was more conservative than necessary2/

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 neithersinister nor even unique for judges or adjudicators to dis-agree. All this shows is the truth of the old adage that

~ 3/reasonable minds can and often do differ on any given issue.

I find no substance to joint intervenors'laim that my votes

in these two proceedings suggest the appearance of personal

bias.

The joint intervenozs eely on ~Hol'le v. Levine, 553ql

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 theSeabrook appeal. He is a lawyer with long experience.He has served as Chairman of the Atomic Safety and LicensingAppeal Panel since 1972. In the Indian Point. appeal, I wasjoined by Dr. Quarles. He is a former Dean of the Schoolof Engineering and Applied Science, University of Virginia,who has a broad technical background. It is significantthat persons with such diverse training and experiencealso agreed with my evaluation of Dr. Trifunac'.s opinion.

claim for financial assistance under New York's Social Ser-

vices Law and Regulations. In its consideration of the second

appeal, the court found that the claimant was entitled to such

assistance but left for trial court determination the appro-

priate remedy. In sending the case back to the lower court forthe second time, the court made the observation on which the

joint intervenors heavily rely:

Since it appears the original judge mighthave difficulty in putting aside previouslyexpressed views, and reassignment is advisableto avoid the appearance of prejudgment, thecase will be remanded to the District Court,for reassignment in keeping with the prin-ciples stated in Un'i;ted States v. Robin,553 F.2d 8, 10 (2nd Cir. March 30, 1977).4/

Just what factors relating to the original trial judge'

conduct persuaded the Court of Appeals to direct reassignment

are not evident. When that,

appeal, it had directed the

Court heard the claimant's earliertrial judge 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 appellatecourt set out the principal factors for determining whetherfurther proceedings should be conducted before a differentjudge, absent proof. of personal bias requiring recusation.In that connection, the court stated that reassignment toanother 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 iscalled to his attention." Applying the facts of that caseto the principles enunciated, the court found no warrantfor assignment of the remanded proceeding to a differentjudge.

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 earlierheard the case was the basis for the appellate court's decision

directing reassignment. .But the circumstances alleged by the

joint intervenors as suggesting the "difficulty" I may have in"'putting aside previously-expressed views'elevant to the

issues now under appeal" are far different from those which

confronted the ~HOlle court. Certainly, there has been noI

showing —much less an allegation -- of refusal on my partto carry out any specific direction of the Commission in thisor 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. Zn their view,

that Board "failed to- consider adequately theintervenors'alid

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

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'I

are claimed to have occurred took place in 1971 when the Appeal

Board decided an appeal from the Licensing Board's decision

authorizing construction of Unit 2 of the Diablo Canyon plant.ALAB-27, 4 AEC 652. It is far 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.

It suffices to observe that the decision to approve construction

of Unit 2 of the Diablo Canyon plant was made (and necessarily,

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 i'n the decisions. SeeLicensing Board Decision dated December 8, 1970, 4 AEC447 and the decision of the Appeal Board, ALAB-27, 4 AEC652. The actions taken by the applicant and agency staffin connection with the seismic matters both before andafter issuance of the construction permit for Unit 2 arealso discussed in the enclosure to the letter datedMarch 31, 1977, from Lee V. Gossick to Congressman Morris K.Udall, referenced in the joint intervenors'otion.

6/joined in that assessment. To claim 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 matter, T. reviewed the relevant Appeal Board7/

opinions before coming to a firm decision. X find nothing

in them requiring my recusation from the Appeal Board for thisproceeding.

<~(/John H. Buck

6/ The Licensing Board members were: James P. Gleason, alawyer who later served as the elected chief executiveofficer for Montgomery County, Maryland; Thomas H. Pigford,Professor of Nuclear Engineering at the University ofCalifornia at Berkeley (and recently a member of the KemenyCommission); and Hugh C. Paxton, a physicist at the LosAlamos Scientific Laboratory. The Appeal Board memberswere: Algie, A. Wells, a long-time government lawyer andadministrator; Lawrence R. Quarles, and myself .

ln our Midland decision we reviewed the grounds on whicha member of an adjudicatory body such as an Atomic Safetyand Licensing Board may be disqualified. An administrativetrier "is subject to disqualification if he has a direct,personal, substantial pecuniary interest in a result; ifhe has a 'personal bias'gainst a participant; if he hasserved in a prosecutive or investigative role with regardto the same facts as are in issue; if he has prejudgedfactual -- as distinguished from legal or policy —issues;or if he has engaged in conduct which gives the appearanceof personal bias or prejudgment of factual issues." ConsumersPower Co. (Midland Plant, Units 1 and 2), ALAB-101, 6 AEC 60,~63 1973) . Certainly none of these bases, save the last, hasany possible relevance to the joint intervenors'ccusations.As to the last factor, I have already covered it, ~su ra



In the Matter of

PACIFIC GAS AND ELECTRIC COMPANY

(Diablo Canyon Nuclear Power PlantUnit Nos. 1 and 2)

Docket Nos. 50-275 O.L.50-323 O.L.

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NRC STAFF'S RESPONSE TO "JOINT INTERVENORS'EQUEST TO STAYORAL ARGUMENT ON THE SEISMIC ISSUES" (March 13, 1980) AND "JOINT

INTERVENORS'EQUEST FOR THE COMMISSION'S EARLY INTERCESSION OR, INTHE ALTERNATIVE, RECONSTITUTION OF THE APPEAL BOARD March 13, 1980

March 21, 1980Edward G. KetchenCounsel for NRC Staff

TABLE OF CONTENTS

~Pa e

1I e Introduction ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

II. Background...............................;...................... 2

II. Argument........................................................ 4I

A. Joint Intervenors'equest for Commission Intercessionor, in the Alternative, Reconstitution of the Appeal BoardShould be Denied as a Matter of Law and Fact................

'1. The Joint Intervenors request that the Commissionintercede in the Diablo Canyon proceedings is contraryto Comaission regulations and practice..................

2. Joint Intervenors'equest that the Appeal Board bereconstituted by removal of Dr. Buck is without

k 1 4 5merit in law or fact....................................B. Joint Intervenors'equest to Stay Oral Argument on the

Seismic Issues should be denied.............................. 10

1. The Joint Intervenors have not made a strong sh~ingthat they are likely to prevail on the merits of theappeal 10 CFR 52.788(e)(l).............................. 11

2. Joint Intervenors will not be irreparably injured bydenial of a.stay........................................ 12

3. Issuance of a stay of the oral argument would harmother parties to the proceeding......................... 12

4. The public interest lies in favor of proceeding withthe oral argument and issuance of an appellate decisionby the Appeal Board..................................... 13

IVV Conclusion......................................................V 13

TABLE OF CITATIONS

Paqe

COURT CASES:

Barkan v. United States, 362 F.2d 158, 160 (1966).................... 8

Cinderella Career and Finishin Schools, Inc. v. FTC, 425F.2d 583, 591 D.C. 1970 .......................................... 7

Gilli an Will 5 Co. v. SEC, 267 F.2d 461, 469 (2d. Cir. 1958cert. denied, 361 U.S. 896 (1959)....;...................... ~ ~ ~ ~ ~ ~ ~ 7

Hall v. Burkett, 391 Fed. Supp 327, 242 (1975)...................... 9

Texaco Inc. v. FTC, 336 F.2d 754, 760 (D.C. Cir. 1964).............. 7

United States v. Gulliam, 575 F.2d 26, 29 (1978).................... 8

United States v. O'ourke, 213 F.2d 759, 763 (8th Cir. 1954)........ 7

Wolfson v. Palmieri, 396 F.2d 121, 124 (1968)....................... 9

ADMINISTRATIVECASES:

Allied General Nuclear Services (Barnwell Nuclear Fuel PlantSeparations Facility, NRC 671 (1975)........................... 12

C Yfd d ddt C fd I 1 I . A~PAthof the State of New York Indian Point Station, Units 1, 2 and3 , LAB-56 , 0 NR 979)....................................... 9

Consumers Power Com an (Midland Plant, Units 1 and 2), ALAB-101,6 AEC 60$ 63 1973 .........................................,..... 6

Consumers Power Com an (Midland Plant, Units 1 and 2), ALAB-395,5 NRC 772$ 785 1977 ...... ,. .. , ........... 11

Du uesne Li ht Com an (Beaver Valley Power Station, Units 1 and 2),ALAB-172, 7 AEC 42, 43 n. 2 (January 24, 1979)....................

Florida Power and Li ht Com an (St. Lucie Plant, Unit Nos. 1 and 2),CLI-77-15, 5 NRC 1324., 1325 1977)................................. 4

111

Pacific Gas and ETectric Com an (Diablo Canyon Nuclear Plant,Units 1 8 2 , Partia Initial Decision (Operating LicenseProceeding), (September 27, 1979).................................

Pacific Gas and Electric Com an (Diablo Canyon Nuclear PowerPlant, Unit Nos. 1 an 2 , LBP-79-26, 10 NRC 453 (September2 7y 1979) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ o ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ o ~ e ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Pacific Gas and Electric Com an (Diablo Canyon Nuclear PowerPlant, Units 1 and 2 , LBP-78-19, .7 NRC 989 (1978)................

Pacific Gas and Electric Com an (Diablo Canyon Nuclear Power Plant,Un ts and , memorandum January 4, 1980)......................

Pacific Gas and Electric Com an (Diablo Canyon Nuclear Power Plant,Units 1 and 2 , ALAB-583, Memorandum and Order (March 12, 1980)....

Public Service Com an of New Ham shire (Seabrook Station, Units1 and 2 , ALAB-338,'4 NRC 10, 12 1976)............................

Public Service Com an of New Ham shire (Seabrook Station, Unitsand 2 , LAB-422, 6 NRC 33, 54-56...............................

Public Service Com an of New Ham shire (Seabrook Units 1 and 2),CLI-77-8, 5 NRC 503, 5 6-5 7 1977 affirmed New En land Coalitionon Nuclear Pollution v. NRC, 582 F.2 87 1st Cir. 1978 ...........

10

Toledo Edison Co. (Davis Besse Nuclear Power Station, Units 1, 2and 3 , LAB-385, 5 NRC 621, 629, 634... .. . . 11

United States Ener Research and Develo ment Administration,Pro ect Mana ement Cor oration, Tennessee Valle Authorit

Cl nch 1ver Breeder Reactor P ant , CLI-76- 3, 4 NRC 67,4( 1 976) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ 0 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Washin ton Public Power Su 1 S stem (WPPSS Nuclear Project, Nos.3 and 5 , CLI-77-11, 5 NRC 719, 722 (1977)........................ 4

-1V-

REGULATIONS:Page

10 C.F.R. Part 2

2 ~ 704 o ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ 75

2o 704(b) o ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ o 65

2 ~ 704 ( C ) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ 65

2 ~ 788 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ 1 25

2o788(a) o ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ o ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ o ~ ~ ~ o 12

2o788(f) o ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ o 105



In the Matter of


)(Diablo Canyon Nuclear Power Plant'

Unit Nos. 1 and 2) )

Docket Nos. 50-275 O.L.

50-323 O.L.

NRC STAFF'S RESPONSE TO "JOINT INTERVENORS'EQUEST TO STAYORAL ARGUMENT ON THE SEISMIC ISSUES" (March 13, 1980) AND "JOINT

INTERVENORS'E(VEST FOR THE COMMISSION'S EARLY INTERCESSION OR, INTHE ALTERNATIVE RECONSTITUTION OF THE APPEAL BOARD March 13 1980

I. Introduction

On March 13, 1980, the San Luis Obispo Mothers for Peace, Scenic Shoreline

Preservation Conference, Inc., Ecology Action Club, Sandra Silver, Gordon

Silver, Elizabeth Apfelberg, John J. Forster ("Joint Intervenors") filed two

requests with the Nuclear Regulatory Comnission. Joint Intervenors'irstrequest asks the Nuclear Regulatory Commission to intercede in the pending

appellate review of Part III of the Atomic Safety and Licensing Board's PartialInitial Decision dealing with seismic issues,+ or, in the alternative, to

reconstitute the Appeal Board Panel by removal of Dr. John H. Buck (request forintercession). The second request asks the Commission to stay the oral argument

scheduled for April 3, 1980, before the Atomic Safety and Licensing Appeal Board

while the Conmission considers the Joint Intervenors'irst request.

1/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Plant, Units 1

5 2), Partial Initial Decision (Operating License Proceeding), (Septem»ber 27, 1979).

The Staff opposes both Joint Intervenors stay request and the request for

Commission intercession in the appellate review process. The stay request

is made in the wrong forum, and does not meet the requirements of the Com-

mission's Rules of Practice. The request for Commission intercession or, in

the alternative reconstitution of the Appeal Board, is contrary to both the

policy and regulations of the Commission governing Commission involvement in

licensing proceedings.

II. Background

This proceeding involves Pacific Gas and Electric Company's ("Applicant" )

application for operating licenses for the Diablo Canyon Nuclear Power Plant,

Units 1 5 2. An Operating License Partial Initial Decision on Environmental

Issues favorable to the Applicant was issued in 1978. — On September 27,2/

1979, the Atomic Safety and Licensing Board issued a Partial Initial Decision

(Operating Licensing Proceedings) / concerning the seismic issues, potential

aircraft or missile crashes into the plant; and the'security plan. The Septem-

ber 27, 1979 decision deferred consideration of safety issues that might

evolve out of the THI analysis and the radon issue.—4/

Joint Intervenors filed exceptions to Part III of the Partial Initial

Decision with respect to the seismic issues and i ts brief on this matter

was filed on December 7, 1979. Applicant response in opposition to Joint

ac»c as an Electric Comoany (Diablo Canyon Nuclear Power Plant,Units 1 and 2), LBP-78-19, 7 NRC 989 (1978).

Q3 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant,Unit Nos. 1 and 2), LBP-79-26, 10 NRC 453 (September 27, 1979).

g4 Ibid, at 455,

Intervenors brief was filed on January 11,+ 1980, and the Staff's brief

in opposition was filed on February 20, 1980.

Governor Edmund G. Brown, Jr. of California was admitted in these proceed-

ings on November 16, 1979, and filed a "Brief in Support of Exception, Or In

the Alternative, Brief Amicus Curiae of Edmund G. Brown, Jr., Governor of

the State of California" (December 7, 1979). The Appeal Board accepted the

brief tendered by Governor Edmund G. Brown, Jr. ~ as that of an amicus curiae;

but insofar as it included a petition to intervene as a party in the consid-

eration of the seismic issue, the Appeal Board denied the petition.—

On January 4, 1980, the Chairman of the Atomic Safety and Licensing Appeal

Panel assigned two appeal Boards to review the two independent appeals

involved, which are proceeding on different briefing and argument schedules.—7/

n ctober 1, 1978, San Luis Obispo Mothers for Peace (SLOMFP) requestedby separate counsel filed separate exceptions and an appeal with respectto Part IV of the Partial Initial Decision dealing with security matters.SLOMFP filed their brief in support of their exceptions to Part IV ofthe PID dealing with security matters on November 12, 1979. Applicantfiled its brief in opposition to Joint Intervenors exceptions and briefon December 18, 1979. The NRC Staff filed its brief in opposition toJoint Intervenors exceptions and brief on the Pacific Gas and ElectricSecurity Plan on December 18, 1979. Oral argument on relative to thesecurity plan contention was held in San Francisco, California onJanuary 23, 1980. On February 15, 1980 the Atomic Safety and LicensingAppeal Board vacated Part IV of the Partial Initial Decision of Septem-ber 27, 1979, and stated that it would conduct further evidentiaryproceedings. Pacific Gas and Electric Company (Diablo Canyon NuclearPower Plant, Units l and 1), ALAB-580 Decision (February 15, 1980).

Q6- Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant,

Units 1 and 2), ALAS-583, Memorandum and Order (March 12, 1980).

g7 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant,Units 1 and 2), Memorandum (January 4, 1980).

III. ARGUMENT

A. Joint Intervenors'e uest for Commission Intercession or, in theAlternative Reconstitution of the A eal Board Should be Deniedas a Matter of Law and Fact

1. The Joint Intervenors request that the Commission intercede inthe Diablo Canyon proceedings is contrary to Commissionregulations and practice.

In considering the Joint Intervenors'equest for early intercession by

the Commission in the present proceeding, it is clear, beyond dispute, that

the Commission has the plenary authority to undertake interlocutory review

of this or any matter pending before a Licensing or Appeal Board. See

United States Ener Research and Develo ent Administration, Pro'ect

Mana ement Cor oration Tennessee Valle Authorit (Clinch River Breeder

Reactor Plant), CLI-76-13, 4 NRC 67, 74-76 (1976); Public Service Com an

~fN 5 Ni 75 5 5 Nt ti . 5 it 7 5 ti. Cti-77-5, 5 NNC 555.

516, 517 (1977), affirmed New En land Coalition on Nuclear Pollution v.

NRC, 582 F.2d 87 (1st Cir. 1978). See also, Florida Power and Li ht Com an

(St. Lucie Plant, Unit Nos. 1 and 2), CLI-77-15, 5 NRC 1324, 1325 (1977).

However, the Commission traditionally has not been inclined to exercise that

plenary authority to intercede in a case during the adjudicatory process

except in extraordinary circumstances. Washin ton Public Power Su 1 S stem

(WPPSS Nuclear Project, Nos. 3 Im 5), CLI-77-11, 5 NRC 719, 722 (1977).

-5-

The Joint Intervenors assert several reasons in support of their request

that the Commission intercede at this early juncture.~ (Brief, at 2-3).

However, the reasons cited are on their face not the types of matters that

constitute extraordinary circumstances warranting Commission intercession

into the appellate review process in an individual licensing proceeding.

Nor does the fact that the issues in the Diablo Canyon case are "hotly

contested" and "involve highly complex technical matters" warrant Commission

intercession. Issues raised by contentions in licensing cases are by their

nature frequently "hotly contested" and most always -"involve complex technical

matters." The Joint Intervenors request for Commission intercession simply

does not raise the spectra of an extraordinary or exceptional factual, legal

or policy question requiring early Commission intercession. Joint Intervenors

request should therefore be denied.

2. Joint Intervenors'equest that the Appeal Board be reconstituted byremoval of Dr. Buck is without merit in law or fact.

Joint Intervenors further argue that should the Commission decide that early

intercession is not warranted, they are nonetheless entitled to an impartial

Appeal Board to hear the case on review and that Dr. Buck's appointment to

Joint Intervenors'easons are vaguely stated as being to restore publicconfidence in the Nuclear Regulatory Commission, to meet a Ceanissiongoal, presumably, of increasing its role in individual licensing process,and for the Coomission to gain first hand experience in assessingseismic appeals and formulating new siting criteria.

-6-

the Appeal Board to consider the seismic contentions on review raises the

appearance of bias. We cannot agree. The crux of Joint Intervenors'equest

made to the Commission is that Dr. Buck has been on prior Appeal Boards that

have dealt with seismic issues and Dr. Buck's decisions in those cases are

not compatible with Joint Intervenors position in the Diablo Canyon. The

Joint Intervenors expert witness, Dr. Mihail Trifunac, testified in the

other seismic cases on which Dr. Buck sat. (Brief, at 16).

The request should be denied on the grounds: (I) that as a matter of law

the question of Dr. Buck's qualifications are not properly before the Com-

mission for its consideration, and (2) that as a matter of fact, Joint

Intervenors'rief does not show that Dr. Buck is partial or that Dr. Buck's

assignment to the seismic Appeal Board constitutes the appearance of bias.

Commission precedent recognizes that the functions of a presiding officer in

an administrative proceeding must be carried out in an impartial manner and

that a presiding officer may be disqualified for personal bias or other

disqualification. Consumers Power Com an (Midland Plant, Units 1 and 2),

ALAB-101, 6 AEC 60 63 (1973). Accordingly, NRC regulations expressly provide

that a presiding officer may withdraw from a proceeding if he "deems himself

disqualified" (10 C.F.R. 52.704(b)), or that "[i]fa party deems a presiding

officer . . . to be disqualified, he may move that the presiding officer . . .

disqualify himself." 10 C.F.R. 52.704(c). If such a motion to disqualify

is filed, "[t]he motion shall be supported by affidavits setting forth the

alleged grounds for disqualification." Ibid.

In this case, the pertient question is whether there is substantial personal

bias or prejudgment or the appearance thereof on the part of the adjudicator.—9 /

The test for disqualification has been stated as being whether "a disinterested

observer may conclude that . . .I.Dr. Buck hasj in some measure adjudged the

facts as well as the law of a particular case in advance of hearing it."Gilli an, Will 6 Co. v. SEC, 267 F.Zd 461, 469 (2d. Cir. 1958), cert den.ied,

361 U.S. 896 (1959).Jd Courts reviewing administrative dlsqualiflcations

are required to ascertain whether there has been a substantial showing of

bias. See, ~e. , United States v. O'ourke, 213 F.2d 759, 763 (8th Cir.

1954).

The facts alleged in the instant Joint Intervenors request 'as to the circum-

stances of Dr. Buck's involvement in previous cases as a member of Atomic

Safety and Licensing Appeal Boards are not disputed. The conclusions drawn

therefrom, however, are. Aside from the bare allegation that Dr. Buck has

previously participated in cases involving seismic issues as an Appeal Board

member, no facts indicating bias or prejudgment have been cited. Indeed,

Joint Intervenors'leading is bereft of any concrete showing of how or why

participation by Dr. Buck would, by virtue of his prior involvement in

seismic appeal cases, constitute bias or an appearance of bias in favor of

the Applicant in the instant proceeding.

There are related deficiencies in the Joint Intervenors'iling in thatthey failed to direct their request to the Appeal Board and Dr. Buckin the first instance and failed to file a formal affidavit setting forththe grounds for disqualification as required by 10 C.F.R. 52.704.

~0 This standard was followed by the courts in Cinderella Career andFinishing Schools. Inc. v. FTC, 425 F.2d 583, 591 (D.C. 1970); TexacoInc. v. FTC, 336 F.2d 754, 760 (D.C. Cir. 1964).

-8-

In this case, Joint Intervenors seek to have the Commission make an excep-

tion to the general rule that prior involvement with similar issues or

parties is not a sufficient basis for disqualification. The Joint Inter-venors do not complain that Dr. Buck has been improperly exposed to the

facts of the Diablo Canyon case in the operating license appellate review,

but merely that he has sat on other cases pending before the Commission

involving seismic issues (Brief at 16). That Dr. Buck, therefore, cannot

participate in the Diablo Canyon seismic appeal decision because he isbiased or his participation will cause the appearance of bias, is an

erroneous position on its face. In any event, as a legal matter, it is

not supported by case law cited by Joint Intervenors. All three cases cited

by Joint Intervenors —involve circumstances where -appellate courts reversed11/ ~

trial judges'argely procedural rulings and ordered that different trialjudges be assigned to preside at the remanded proceedings. The distinguishing

feature is that in each case the appellate bodies found the trial judge to

have erred in procedural rulings. The rationale of the appellate tribunals

in not remanding the case back to the same trial judge because of the potential

for raising ques'tions of the appearances of partiality is obvious.= Diablo Canyon case, however, there is no action taken involving Dr.

which has been reversed and remanded by a higher level of appellateThus, the cases cited by Joint Intervenors are simply not on point.of fact may not be disqualified merely because he has tried similar

In the

Buck

review.

A triercases

involving similar issues. United States v. Gulliam, 575 F.2d 26, 29 (1stCir. 1978); 8arkan v. United States 362 F.,2d 168, 160 (7th Cir 1966);.

ll Brief at 15.

-9-

Hall v. Burkett, 391 Fed. Supp 237, 242 (D.Okla. W.D., 1975); See, Wolfson

v. Palmieri, 396 F.2d 121, 124 (2nd Cir. 1968)). moreover, it is a fact thatDr. Buck's opinions as an appellate reviewer of a factual records rendered

in Public Service Com an of New Ham shire, ALAB-422, 6 NRC 33, 54-56; and

Consolidated Edison Com an of New York, Inc. and Power Authorit of the State

of New York (Indian Point Station, Units 1, 2 and 3), ALAB-561, 10 NRC (1979)

have not been reversed with respect to his opinion that Dr. Mihailo Trifunac s

opinions presented in the Seabrook and Indian Point

conservative". — To paraphrase Joint Intervenors,

reject Dr. Trifunac's opinions in the Diablo Canyon

proceedings are "too

Dr. Buck may yet again

case. — That this ~ma13/

occur is not enough, however, to show partiality or the appearance of

partiality or prejudgment.

Th V t 1 th f 1 iy 1B t thtt ~Bitt 14/

where the Appeal Board strongly admonished the movants for seekinq disquali-

fication of the Licensing Board upon a showing of "little more than broad

and vague assertions that the Licensing Board had manifested bias. . .."

if . 1 ~BV TT, th 1 1 t I t h f 11 V t th 1

burden of showing prejudgment or bias on the part of Dr. Buck and having

failed to do so, their present motion is insufficient as a matter of law

and should be denied.

s the Joint Intervenors point out the Seabrook and Indian Pointseismic cases are pending before the Commission for review.

13 / Brief, at 16.

14 / Duquesne Liqht Company (Beaver Valley Power Station, Units 1 and 2),ALAB-172, 7 AEC 42, 43 n. 2 (January 24, 1979).

-10-

B. Joint Intervenor's Request to Stay Oral Ar'gument on the SeismicIssues Should be Denied

In conjunction with their motion for Comnission intercession in the present

proceeding, the Joint Intervenors also seek a stay of the oral argument on

the seismic issues now scheduled to be heard before the Appeal Board on

April 3, 1980. The sole ground raised by the Joint Intervenor .in support

of their motion is that such a stay would provide the Coranission "adequate

time to evaluate the important questions raised in their [motion forearly intercession]". Motion at l.

As set forth in Part A, ~su ra, the Joint intervenor's motion for early

intercession and for reconstitution of the Appeal Board is without merit

and must be denied. A fortiori the present motion for a stay grounded

solely upon the merits of that motion must likewise fail. Moreover,

when judged by the standards set forth in 10 CFR 52.788(e) for issuance

of a stay, the Joint Intervenor's motion which fails to addr'ess any of the

requirements of the regulation is clearly deficient as a matter of law.—15/

5/ The Joint Intervenors have selected the incorrect forum for theirmotion in that the Commissions Rules of Practice expressly providethat a request to the Commission for stay of an Appeal Board actionwill be denied unless the request is first made to the Appeal Board.10 C.F.R. 52.788(f). Cf. Public Service Company of New Hampshire(Seabrook Station, Units 1 and 2), ALAB-338, 4 NRC 10, 12 (1976).

-11-

1. The Joint Intervenors have not made a strong showing that they arelikely to prevail on the merits of the appeal.

The Joint Intervenors have not only failed to make a strong showing as the

moving party that they are likely to prevail on the merits of their appeal,

they have not bothered to address this question at all. Rather, their brief

simply argues directly that the seismic issues are important enough for the

Commission to intercede in this proceeding for the purpose of "restorfing]

the seriously eroded public confidence that the NRC will resolve the excep-

tional safety issue raised by the appeal with objectivity and a commitment

to 'safety first'." (Brief at 2). This argument is not material to a

request for stay.

Moreover, examination of Joint Intervenors appellate brief shows that they

rely on the questionable arguments that they did not prevail before the

Licensing Board on the merits, that their view of the case was not adopted,

and that the Applicant has not carried its burden of proof on factual matters.

They point to no egregious error of law or policy demonstrating that the

Licensing Board, which was the trier of fact, was wrong in weighing the

evidence and deciding the facts as it did. The fact that Joint Intervenors

complain in lengthy br iefs that they lost is inadequate to show that they

are likely to prevail on the merits. Consumers Power Com an (Midland Plant,

Units 1 and 2), ALAB-395, 5 NRC 772, 785 (1977); Toledo Edison Co. (Davis

Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621, 629,

634)).

-12-

2. Joint Intervenors will not be irreparably injured by denial ofa stay.

Joint Intervenors do not directly address this criteria either. Joint

Intervenors do not describe how their interests will be injured if the

review process established by the Commission runs its normal course.

Although they complain that Dr. Buck is not impartial and should not be

allowed to hear and decide the case on appeal, —that matter is separate16/

from the question of whether the oral argument should proceed as scheduled

when judged against the irreparable injury criteria. Joint Intervenors

might arguably be inconvenienced as would the other parties if Dr. Buck is

subsequently disqualified and further proceedings are required. But incon-

venience, or litigation expense, is not the test of irreparable injury.

See, Allied General Nuclear Services (Barnwell Nuclear Fuel Plant Separa-

tions Facility), 2 NRC 671 (1975).

3. Issuance of a stay of the oral argument would harm other parties tothe proceeding.

Presumably, the Appeal Board has been reviewing the record for some months

in preparation for the oral argument that is scheduled to be heard in approxi-

mately a week and a half. The Commission, which has delegated its review

responsibility, 10 CFR 52.762, to the Appeal Board pursuant to 10 CFR 52.785,

likely is not as well versed in Diablo Canyon at this point in time since itwould not be expected to become involved in the licensing process for some

time. The conclusion is that grant of the stay of the oral argument and the

collateral request for Coamission intercession in this proceeding, or, in

16/ Dr. Buck s impartiality is addressed above.

-13-

the alternative, replacement of Dr. Buck, would result in unwarranted delay

in the proceedings while the Commission or new Appeal Board member becomes

acquainted with the Diablo Canyon record.

4. The public Interest lies in favor of proceeding with the oral argumentand issuance of an appellate .decision by the Appeal Board.

Joint Intervenors do not address this criteria, either. However, the public

interest facto favors uniformity and consistency of procedure absent extra-

ordinary circumstances. The Commission has established Rules of Practice to

which all parties to a Commission proceeding may look for guidance. The

extraordinary procedure that Joint Intervenors would have the Commission

invoke without any showing that such ad hoc departure from established

practice is necessary, is clearly not in the public interest.

In summary, weighing the four factors of 10 CFR 52.788 warrants denial of

Joint Intervenors stay request.

Conclusion

For the foregoing reasons the Commission should (1) deny JointIntervenors'equest

that the Commission intercede in the Appeal Board's Review of Part IIIof the Partial Initial,Decision of September 27, 1979, or, in the alternative,

reconstitute the Appeal Board, and (2) deny the request for stay of the Atomic

Safety and Licensing Appeal Board's oral argument now scheduled for April 3, 1980.

Dated at Bethesda, NarylhndMarch 21, 1980


Edward G. KetchenCounsel for NRC Staff



In the Matter of



Docket Nos. 50-275 O.L.50-323 O.L.

* Dr. W. Reed JohnsonAtomic Safety and Licensing Appeal BoardU.S. Nuclear Regulatory ComnissionWashington, D. C. 20555** Dr. Victor Gilinsky

U.S. Nuclear Regulatory CommissionWashington, D. C. 20555

* Mr. Thomas S. Moore, MemberAtomic Safety and Licensing Appeal BoardU.S. Nuclear Regulatory CommissionWashington, D. C. 20555** Mr. Richard T. Kennedy

U.S. Nuclear Regulatory CommissionWashington, D. C. 20555 * Dr. John H. Buck, Member

Atomic Safety and Licensing Appeal BoardU.S. Nuclear Regulatory CommissionWashington, D. C. 20555

~ Dr. Joseph M. Hendrie'.S. Nuclear Regulatory CommissionWashington, D. C. 20555

I hereby certify that copies of "NRC STAFF'S RESPONSE TO 'JOINTINTERVENORS'EQUEST

TO STAY ORAL ARGUMENT ON THE SEISMIC ISSUES'March 13, 1980) AND'JOINT INTERVENORS'EQUEST FOR THE COMMISSION'S EARLY INTERCESSION OR, INTHE ALTERNATIVE, RECONSTITUTION OF THE APPEAL BOARD (March 13, 1980)" datedMarch 21, 1980 in the above-captioned proceeding, have been served on thefollowing, by deposit in the United States mail, first class, or, as indicatedby an asterisk through deposit in the Nuclear Regulatory Commission's internalmail system, this 21st day of March, 1980:

** John F. Ahearne, ChairmanU.S. Nuclear Regulatory CommissionWashington, D. C. 20555

~ Peter A. BradfordU.S. Nuclear Regulatory ComnissionWashington, D. C. 20555

* Richard S. Salzman, Esq., ChairmanAtomic Safety and l.icensing Appeal BoardU.S. Nuclear Regulatory CommissionWashington, D. C. 20555

Herbert H. BrownHill, Christopher a Phillips, P.C.1900 M Street, N.W.Washington, D. C. 20036

Elizabeth Apfelbergc/o Nancy Culver192 LunetaSan Luis Obispo, California 93401

* Elizabeth S. Bowers, Esq.Atomic Safety and Licensing BoardU.S. Nuclear Regulatory Co)missionWashington, D. C. 20555

* Mr. Glenn 0. BrightAtomic Safety and Licensing BoardU.S. Nuclear Regulatory ComnissionWashington, D. C. 20555

Dr. William E. MartinSenior EcologistBattelle Memorial InstituteColumbus, Ohio 43201

Andrew Baldwin, Esq.124 Spear StreetSan Francisco, California 94105

Philip A. Crane, Jr., Esq.Pacific Gas and Electric CompanyRoom 312777 Beale StreetSan Francisco, California 94106

Mr. Frederick EisslerScenic Shoreline Preservation

Conference, Inc.4623 (lore Mesa DriveSanta Barbara, California 93105

furs. Raye Fleming1920 Mattie RoadShell Beach, California 93449

Mrs. Sandra Silver1760 Alisal StreetSan Luis Obispo, California 93401

Mr. Gordon Silver1760 Alisal StreetSan Luis Obispo, California 93401

John R. Phillips, Esq.Simon Klevansky, Esq.Margaret Blodgett, Esq.Center for Law in the

Public Interest10203 Santa Monica DriveLos Angeles, California 90067

Arthur C. Gehr, Esq.Snell 8 Wilmer3100 Valley CenterPhoenix, Arizona 85073

Paul C. Valentine, Esq.321 Lytton AvenuePalo Alto, California 94302

Yale I. Jones, Esq.100 Van Ness Avenue19th FloorSan .Francisco, California 94102

J. Anthony KleinLegal Affairs SecretaryGovernor's OfficeState CapitolSacramento, California 95814

Janice E. Kerr, Esq.Lawrence g. Garcia, Esq.350 McAllister StreetSan Francisco, California 94102

Mr. James 0. SchuylerNuclear Projects EngineerPacific Gas and Electric Company77 Beale StreetSan Francisco, California 94106

Bruce Norton, Esq.3216 North 3rd StreetSuite 202Phoenix, Arizona 85102

~ David S. Fleischaker, Esq.Suite 7091735 Eye Street, N.W.Washington, D.C. 20006

Richard B. HubbardMHB Technical Associates1723 Hamilton Avenue - Suite KSan Jose, California 95125

John MarrsManaging EditorSan Luis Obispo CountyTelegram-Tribune1321 Johnson AvenueP.O. Box 112San Luis Obispo, California 93406

+Atomic Safety and Licensing AppealPanel

U.S. Nuclear Regulatory ComoissionWashington, D. C. 20555

"Atomic Safety and Licensing BoardPanel

U.S. Nuclear Regulatory CommissionWashington, D. C. 20555

*Docketing and Service SectionOffice of the SecretaryU.S. Nuclear Regulatory CommissionWashington, D. C. 20555

Edward G. Ketc enCounsel for NRC Staff

TAI t I, JOHt%IJHOA J, OIIOWH,t,KAHCI~ V Ct IPPOKOWII I.V.M O. McotVITT.CKAIO 4 OTKMAH

. March 17, 1980

~b~

h

ATTOKHCV4 AT I AW100 VAH Htt~ O'VCHVC 'I 0TH FI OOII

SAN FRANCISCO. CALJFORNIA 04102 ~

~ 4 ~ 4) 4%I thlO

Richard S. Salzman, Esq;, ChairmanAtomic Safety 6 Licensing Appeals BoardU.S. Niuclear Regulatory CommissionVashingtoa, D.C. 20555

Thomas 5. Moore, Esq.Atomic Safety 6 Licensing Appeal, BoardU.S. Nuclear Regulatory Commission "

'Rashington, D.C. ~ 20555

Dr. Reed JohnsonAtomic Saf'ety 6 I.icensing Appeal BoardU.S. Nuclear Regulatory Commissionh'ashington, D.C. 20555

DQCK~EgUstlRO

kQr 2 ~2;c.o.;~Offic ofga~<Dot:ft6ting Q ~~

Bmncn,

V g)

In the Matter ofPacific Gas and Electric Company

(Diablo 'Canyon Nuclear Power Plant, Units os. 1 and 2)Docket Nos. 50-275 O.L. and 50 3 O.L.

Gentlemen:I

As per the First Prehearing Conference Order of February 25, '1980,I enclose the Notice of Appearance of myself, as lead counsel, andMessrs. Valentine and Baldwin.

Intervenor will be presenting the testimony of Jeremiah P. Tayloras an expert witness in security matters. A summary of his educationand experience in this regard is enclosed. It is hoped that any objec-tion that applicant might have to Mr." Taylor's qualifications can beresolved at -the April 2, 1980 pre-hearing conference in order thatMr. Taylor may begin reviewing the sanitized ve sion of the plan immedi-ately and assist in formulating intervenor's specific contentions.

cc: Page 2

Very truly yours,

L~iYale I. Jones(Lead Counsel for IntervenorSan Luis Obispo Mothers for Peace)

March 17, 1980Page 2,

Enclosure as stated

cc: (w/ enclosures)

Elizabeth S. Bowers, Esq.Mr. Glenn, 0. BrightMrs. Elizabeth ApfelbergDr. William E. MartinPhilip A. Crane, Jr., Esq.Mr. Frederick EisslerMrs. Raye FlemingMr. Gordon SilverJohn R. Phillips, Esq.Arthur C. Gehr, Esq.Paul C. Valentine, Esq.Janice E. Kerr, Esq.Mr. James 0. SchuylerEdward G. Ketchen, Esq.

Bruce Norton, Esq-David S. Fleischaker, Esq.-Mrs. Sandra A. SilverAtomic . Safety 6 Licensing Appeal PanelAtomic Safety 6 Licensing Board PanelDocketing and Service SectionRichard B. HubbardJohn MarrsAndrew -Baldwin, Esq.Herbert H. BrownJ. Anthony KleinJames R. TourtellotteL. Dow. Davis, Esq.Mare R. Staenberg


BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

In the Matter of ))

PACIFIC GAS AND ELECTRIC COMPANY ))

(Diablo Canyon Nuclear Power Plant )Unit, Nos. 1'nd .2.) )

Docket, Nos. 50-275 O.L.50-323 O.L.

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12

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A

NOTICE OF APPEARANCE

Notice is hereby given that the following attorneys hereby

enter their appearance on behalf of intervenor SAN LUIS OBISPO

MOTHERS FOR PEACE and provide the following information in accord-

ance with 52;71&ta),-10 CFR Part 2:.I

Name — Yale I. Jones (Lead Counsel)

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LAW O<TICC$'4ES. BROWN

= Cwrxoaovs& laC$ $ AVCNlltsoT+ taOaa

~ 4NCI$CO. CA $ ~ l0$ISI$ ~ iSl $ $ 10

Address

Telephone Number

Admissions

Name

Address

Telephone NumberEv

Admissions

100 Van Ness Avenue, 19th FloorSan Francisco,. CA 94102

(415) 431-5310

Supreme Court for the State ofCalifornia

I

United States District Court forthe Northern District of CaliforniaPaul C. Valentine, Esp.

321 Lytton AvenueP.O. Box 210Palo Alto, CA 94302

(415) 327-6700

Supreme Court, of the United States


3

6

Name

Address

Telephone Number

Admissions

I

— United States District'ourt forthe District of Columbia and North-ern, Eastern, Southern and CentralDistricts of California

— Andrew Baldwin

124 Spear StreetSan Francisco, CA 94105

(43.5) 495-4770

Supreme Court for the State ofCaliforniaNinth Circuit Court, of Appeals

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12

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Yale I. Jones (Lead Counsel),Paul C. Valen'tine and

Andrew Baldwin,.- Counsel forSan Luis Obispo Mothers for Peace

by Yale I. Jones

16

Dated at San Francisco, California,this 17th day of March, 1980

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LAW'OSSICCSYES. BROWN

CLIFFORDVAR IICSS AVCIIUC

I ~ TII SLOOIISANCISCO. C* SAIOXI ~ IS) ASI SSIO

SCHOOLING AND TRAINING RESUME

JEREMIAH PRICE TAYLOR< born September 24, 1 921Present full t'me address:135 Lake hore DriveSan Franc'sco, CA 94132(415) 665-4764

Married: Fath of three grown children.

Docs=, i'oU+a i+~ee iiiw

p. ho0 h* f2 at+~

~Et.'Std'. Secre!any,,>~='""'st'.-:~

e'e~

V QSCHOOLING: Hig . school graduate Oakland California,

June 1940.

City College of San Francisco, l-l/2 years,to January 1942. Pre-legal courses.Jul~/December 1944. Mar'itime Academv Officers'rainingScho"1 in Alameda, CA. for commission as Ensign inMiar'=ime Service with a Marine Deck Of icer's. License.

Date Location-.=. saices ~Sub 'ect Tvee1958 Jan.

l

1963 Hay

1963'une

1967 Jan.

Presidio =.F , .U.S. Army

'S.F. Cit': College, SFPD

S.F. Cit: College, SFPD

.Univ. S.=-., U.S. CommunityRelations Commission

I

Piot and Civil CrowdControl

Chemical Agent Use

Community Relations

Course

Course

Seminar

Exolosive Ord.-Reconn; Course

1969 Jan S.F. Sta=e University Law Enforcement andSecurity

Seminar

1969 March S.F. Pol'"e Training Div.U. S. A .='isaster Preparedness

and Handl incCourse

1970 Jan. SFPD, Ca'ifornia PoliceOff. Sta.-.=ards 6 Training(POST)

Policing Course

1970 July

1970 Nov.

Long Bea"'-i State CollegeCalif. De=t. of JusticeSFPD Tra==.ing Diy. Civil Dis" ~r" nce

HandlingCourse

Police Helicopter Use Course

1971 Julv1972 Nov.

Long Bea"=. State CollegeQuan tico, Virginia, FBI

Police 'iana- ~ent

Urban PolicingProblems

Cou"se

Syi.loos iu;-

Date

1973 March

1973 April

1973 May

1974 March

l975 March

1975 May

Z,pea tion-Z =ski ces

SFPD, Cali=. POST

San Jose S" te CollegeCalifornia POST

SF Police "aining Divn.

SF Police .=aining Divn.

SF, U S.A.:—. & FBX

SF, Mayor's Office ofEmergency Service

~Sub 'ctPolice EmergencyManagement

Police ExecutiveDevelopment

Hostage Negotiations

Hostages

Civilian Unrest(Xranians)

Earthauake E DisasterCoordination

Tvoe

Course

Course

Course

Course

Seminar

Seminar

19?5 July

1975 Oct.

1975 Oct.

SF, U.S. D=—t. of Justice

SFPD Train=.".g DivisionSF, U. S. Se=ret Service/PBI/State =apartment

Team Policing andCoordination

Terrorist Activity

Seminar

Seminar

Dignitary Protection Seminar

197~ Nov.. -.SF, Presicio; U.S. Army Explosive Ordnance . . SeminarPx'obl ems

1976 Jan.

1976 March

SF, PBl/Pos-al AuthoritiesSF, Calif.. Office of Emer-aency Services

UEP Security

Disaster Operations

Seminar'eminar

1976 Nov.. San Mateo, -A, SkylineColleae, Ca:ifornia PeaceOfficers'==-sociation

Terrorism and Organ- Courseized Crime

1976 Dec. SFPD Trair.="..g Divn. Senior %dm PolicingProblems

Semina'r

1977 Feb.

1977 Mav

SFPD Train. ng Divn.

SF, Calif. Department ofJustice

Senior Adm. SecurityProblems

Police Executivesand the Law

Seminar

Conferenc=

1977 Aug. 'F Office c= EmergencyService

Disaster Plan;.ing Seminar

1977 Oct. SF City Co ege Criminology Seminar

Date Location-Aus ices ~Sub 'ect

1977 Oc".

1977 No;-.

1977 De™.

1978 Ja.-.

1978 Fe=.

1978 Fe".

Quantico, VA. NationalInstitute of Law Enforcement,SF Sheriff! s OfficeSF, U.S. Secret ServiceSFPD

Kansas City P.D., LEAA

SF, U.S. Coast Guard atTreasure Island

Managing PoliceOperations

Building SecurityVIp protectionHazardous Materxal

Security a Policing'waterfront Security

I

Course

Seminar

Seminar

Seminar

Course

Seminar

1978 April

1978 Ap==l

1978»a;-

1978- June

1978 Ju.".e

SF Office of EmergencyOperations

SF, U.S. Coast Guard

SFPD Training DivisionSFPD Training Division

Long Beach, CA, Calif. StateTraining Institute

Disaster Operations

Shore & MarineTerrorism

Dignitary ProtectionPolice ExecutiveDevelopment

International Terror-ism.

Seminar

Seminar

Seminar

'ourse

Course

1978 Au".

1979 Ja-...

SF Mayor's OfficeMarin County, CA, Calif.POST Divn.

Disaster. Planning

Police Executive.Development

Seminar

Course

1979 Ma""h Pomona, CA State CollegeLEAA

Criminal Investiga-tions.

Course

1979 Ma;-

1979 Ju.".e

1979 Ju

SF Mayor's OfficeSFPD Training Divn.

SF, U.S. Alcohol/TobaccoFirearms Divn.

Police ProtectionSenior PoliceManagement

Arson

Seminar

Course

Conference

1979 Dec. Colorado Sprints, Col.LEAA

Police Investigations Course

GUIQIARY OF EXPERTISE, EDUCATION AND EXPERIENCE

~ OF JEREMIAH P. TAYLOR

Jeremiah P.'aylor retired on January 1'6, 1980 as

Deputy Chief of Police for the City of San Francisco, Cali-

fornia after serving in that department continuously from

November 17,'947.. For the ten years between 1970,and his

retirement on January 16, 1980, Mr. Taylor served as Deputy

Chief of Operations'or in a .parallel position under the priornomenclature of Supervising Captain. In this capacity he had

day to day responsibility over approximately 1900 .sworn policepersonnel-and an additional -700 civilian employees. -.":..

I'ome'reasof Mr. Taylor's experience and expertise are

as follows:

BUILDING AND 'SITE 'SECURITY

During the 1970's continued bombing attacks, armed assaults

and aggressive picketing action were directed at police facil-lities and .public buildings in San Francisco, and several

individuals were killed, many more being injured. As a result,Mr. Taylor planned, developed, refined, implemented and admin-

istered a personnel and physical security system for'. the nine

police stations, the Hall of Justice and the City Hall of

San Francisco. This called for study of the state of the art'r

in security measures, devices and hardware and consideration

of plans and proposals for building security. Included were

a study in depth of the types of potential attacks, threats

and dangers to be protected against. These included sabotage

efforts, single and multiple intruder penetration, gang as-

saults, sniper attacks, bomb attacks and interruption or

prevention of operation by mob action. After exploration

and consultation with security experts in diverse fields,and after surveying various types of security arrangements,

I

Mr-. Taylor supervised the implementation of a system forpersonnel, physical plant and structure security for the

above-mentioned eleven locations in San Francisco. Subse-

quent to its installation Mr. Taylor's duties included

frequent personal inspection and critiques for possible im-

provement of the human and physical components of this system.

In addition to the arrangement of structural architecture,alarm devices, protective shields and so forth, Mr. Taylor was

I

response.ble for training personnel for general alertness forand knowledge of security matters.

EXPLOSIVE ORDINANCE DEMOLITION UNIT (BOMB SQUAD)

Specials in this unit were developed and trained by

Ifr. Taylor to meet specific dangers and threats. This unitreported directly to Mr. Taylor and regularly advised him

with respect to security and safety measures with regard to

protection from explosives.RIOT AND CROWD CONTROL

This specialized unit was also developed and trained

under Mr. Taylor's supervision and was under his command

and control. The safety of citizens and physical plant

-safety and'security were the controlling objectives.\

Mr. Taylor personally was the officer in charge at over 200

instances of riot and crowd .control in all areas of San Fran-

cisco during the last 10 years. These ranged from campus

riots at San Francisco State University and anti-war demon-I

strations in the parks and neighborhoods of San-Francisco, to

mass demonstrations in the.-city'-congested. downtown center.

Rioters up to the number of 599 and crowds approaching the

number of 200,000 were successfully controlled and dealt

with in these operations.

ANTI-SNIPER UNIT

This specialized unit was founded and trained under

Mr. Taylor's supervision for protection. against by preventive

action in advance. Under Mr. Taylor's supervision it also

responded to and neutralized threatening sniper attacks as

they developed.I

VERY IMPORTANT PERSONS (VIP) SECURITY UNIT

Again under Mr. Taylor's direct supervision this unitwas developed and trained 'to provide protection to individualsas they appeared in public and'raveled and with respect toother matters of personal security. Inhere appropriate, th'is

unit performed bodyguard duty.

"3

HOSTAGE NEGOTIATION

This technique was instituted and trained for during

Mr. Taylor's tenure as Deputy Chief. He was personally'

in charge of and successfully concluded many large scale.P

hostage negotiations. He trained and supervised 'personnel

specialized in this technique.

INTELLIGFNCE

Mr. Taylor trained, supervised and appropriately and

successfully deployed personnel for the purpose of gathering

intelligence information with respect to all aspects of

security matters under his jurisdiction.DISASTER AND SECURITY CO-ORDINATION

As the San Francisco "Police Department's representative

for the San Francisco City and County disaster office,Mr. Taylor co-ordinated the police function in city wide

security efforts in the event of a war or other d'isaster.

The California State Disaster Office, including its provisionsfor police mutual aid in the event of a police problem over-

whelming some local jurisdiction, was Mr. Taylor's responsi-

bility. These offices closely consulted with Mr. Taylor on

the subject matter.

Mr. Taylor acted as liason with the United States Coast

Guard on matters dealing with dock-side vessel underwater

security. The underwater .rescue unit of the San FranciscoMp

Police Department reported directly to llr. Taylor on its

function and was used by the Coast Guard as necessary

after. consultation with and approval of Mr.- Taylor.

Mr. Taylor .,co-ordinated on matters of personnel', plant

and crowd control with the United States 6th Army Headquarters

at the San Francisco Presido as problems arose on the areas

of their mutual, boundaries..

After the opening of the Golden Gate Federal Park System

in the ocean coast area of San .'Francisco, the United States

Park, Administration contacted:and conferred with Mr. Taylor

and his office on matters of security and geographic, instal-lation and personnel areas. Continuous co-ordination of

security arrangements was maintained with the Golden Gate

Federal Park System with respect to the installations and

crowds that were located or arose. on their mutual contiguous

boundaries.

Training exercises were held under Pw. Taylor's totalor partial supervision with all of the above-mentioned agencies

wherein the San Francisco Police personnel as we).1 as personnel

of the agencies developed and drilled in their duties and res-

ponsibilities for security and safety. As a result of these

.exercises, improved, plans and co-ordination were developed.

CONSULTATION TO PRIVATE ORGANIZATIONS

Based on his experience and expertise, Mr. Taylor was

consulted in his official capacity by many private citizens,companies and organizations with respect to security matters.

He did, in. fact, act as Police Department liason and advisor

to these organizations, individuals and companies, among

the many of which was the Pacific Gas and Electric Company.

Attached is a summary of the specialized training. under-

gone by Mr-, Taylor .during the years he had supervisory res-

ponsibility with the San Francisco Police Department.

UNXTED STATES OF AMERICANUCLEAR REGULATORY COMMISSXON

BEFORE THE ATOMXC SAFETY AND LICENSING APPEAL BOARD

In the Matter of


(Diablo Canyon Nuclear PowerPlant, Unit Nos. 1 and 2)

)

) Docket Nos. 50-275 O.L.) 50-323 O.LE)

)

)


Notice is hereby given that the undersigned attorney enters

an appearance in the captioned matter on behalf of the Applicant

herein. In accordance with Section 2.713(a) of 10 C.F.R. Part 2, the

following information is provided:

Name: Bruce Norton

Address: 3216 N. Third Street, Suite 300Phoenix, Arizona .85012

Telephone No.: (602) 264-0033

Admitted to Practice: United States Supreme CourtSupreme Court of ArizonaUnited States Court of Appeals

for D.C., 6th, 9th and 10thCircuits

Name of Party: Pacific Gas and Electric Company77 Beale StreetSan Francisco, California 94106


Bruce Norton

Dated: March 17, 1980

UNXTED STATES OF AMERXCANUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LXCENSXNG APPEAL BOARD

In the Matter of ))

PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275-OL) 50-323-OL

Diablo Canyon Nuclear Power Plant ))Units 1 and 2 ))


Notice is hereby given that the undersigned attorneyherewith enters an appearance in the captioned matter. In ac-cordance with g 2.713(a), 10 CFR Part 2, the following informa-tion is provided:

Name

Address

Telephone Number

Admissions

Malcolm H. Furbush

Pacific Gas and Electric CompanyLaw Department — 31st Floor77 Beale StreetSan Francisco, California 94106

Area Code (415) 781-4211


Name of Party

Supreme Court of the United States

Pacific Gas and Electric'Company77 Beale StreetSan Francisco, California 94106

~~~/ NW~ZMalcolm H. Furbush

Vice President and General Counsel

Dated at San Francisco, Californiathis 17th day of March, 1980



In the Matter of ))


Diablo Canyon Nuclear Power Plant ))

Units 1 and 2 ))

Docket Nos. 50-275-OL50-32 3-OL


Notice is hereby given that the undersigned attorneyherewith enters an appearance in the captioned matter. In ac-cordance with g 2.713(a), 10 CFR Part 2, the following informa-tion is provided:

Name

Address

Telephone Number

Admissions

Name of Party

Philip A. Crane, Jr.Pacific Gas and Electric CompanyLaw Department — 31st Floor77 Beale StreetSan Francisco, California 94106

Area Code (415) 781-4211

Supreme Court for the State ofCaliforniaPacific Gas and Electric Company77 Beale StreetSan Franc', a ifornia 9410

Ph 1 p A. Cr ne, Jr.Ass'stant Gene al Counsel

Dated at San Francisco, Californiathis 17th day of March, 1980



In the Matter of )

)PACIFIC GAS a ELECTRIC COMPANY ) Docket Nos. 50-275 O.L.

) 50-323 O.L.(Diablo Canyon Nuclear Power Plant )Unit Nos. 1 and 2) )

)

)


Notice'is hereby given that the undersigned attorney

enters an appearance in the captioned matter on behalf of the

applicant herein. In accordance with section 2.713(a) of10 CFR Part 2, the following information is provided.

Name: Arthur C. Gehr

Address: Snell 6 Wilmer3100 Valley CenterPhoenix, Arizona 85073

Telephone No.: (602) 257-7288

Admitted to practice — Supreme Court of Arizona— Supreme Court of Illinois

Name of Party — Pacific Gas and Electric Company77 Beale StreetSan Francisco, California 94106


Dated: March 17, 1980

Arthur C. GeAttorney for Appl cant



In the Matter of


(Diablo Canyon Nuclear PowerPlant, Units No. 1 and 2)

)

) Docket Nos. 50-275 O.L.I) 50-323 O. L.)

))


I hereby certify that copies of "NOTICES OF APPEARANCE FORMALCOLM H ~ FURBUSH g PHI LIP A ~ CRANE g JR ~ I ARTHUR C ~ GEHR AND BRUCENORTON, COUNSEL FOR PACIFIC GAS AND ELECTRIC COMPANY", dated March17, 1980, have been served on the following by deposit in the UnitedStates mail, this 21st day of March, 1980:

Elizabeth S. Bowers, ChairmanAtomic Safety and Licensing BoardMail Drop East West 450U. S. Nuclear Regulatory Comm'nWashington, D.C. 20555

Mr. Glenn O. BrightAtomic Safety and Licensing BoardMail Drop East West 450U. S. Nuclear Regulatory Comm-'nWashington, D.C. 20555

Dr. William E. MartinSenior EcologistBattelle Memorial InstituteColumbus, OH 43201

Mrs. Elizabeth Apfelbergc/o Nancy Culver182 Luneta DriveSan Luis Obixpo, CA 93401

Mr. Richard S. Salzman, ChairmanMr. John H. BuckMr. Thomas S. MooreDr. W. Reed JohnsonAtomic Safety 6 Licensing

Appeal PanelU. S. Nuclear Regulatory Commission4350 E. West HighwayBethesda, MD 20014

Mrs. Raye Fleming1920 Ma t tie RoadShell Beach, CA 93449

Gordon Silver,1760 Alisal StreetSari Luis Obispo, CA 93401



Yale I. Jones, Esq.100 Van Ness Avenue19th FloorSan Francisco, CA 94102

John R. Phillips, Esq.Center for Law in the

Public Interest10203 Santa Monica Blvd.Los Angeles, CA 90067

David F. Fleischaker, Esq.1735 Eye Street N.W.Washington, D.C. 20006


Conference, Inc.4623 More Mesa DriveSanta Barbara, -CA 93105

Janice E. Kerr (Ms.)Lawrence Q. Garcia, Esq.California Public Utilities Comm'n5246 State Building350 McAllister StreetSan Francisco,CA 94102

James R., Tourtellotte, Esq.L. Dow Davis, Esq.Mare R. Staenberg, Esq.Edward G. Ketchen, Esq.Office of Executive Legal DirectorBETH 042U. S. Nuclear Regulatory Comm'nWashington, D.C. 20555

Atomic Safety and Licensing BoardPanel

U. S. Nuclear Regulatory Comm'nWashington, D.C. 20555

Docketing and Service SectionOffice of the SecretaryU. S. Nuclear Regulatory Comm'nWashington, D.C. 20555


MHB Technical Associates1723 Hamilton Ave., Suite KSan Jose, CA 95125

Carl NeiburgerTelegram TribuneP. O. Box 112San Luis Obispo, CA 93402

J. Anthony Kline, Esq.Legal Affairs Secretary

to the GovernorState of CaliforniaState Capitol BuildingSacramento, CA 95814

Herbert H. Brown, Esq.Hill, Christopher 6 Phillips1900 M Street, N.W.Washington, D.C. 20036

~8 REgijCq~

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+~ qO+)i**+

UNITED STATESCLEAR REGULATORY COMMISSION

ATOMICSAFETY AND LICENSING APPEAL PANELWASHINGTON, D.C. 20555

March 12, 1980

MEMORANDUM FOR: Chase Stephens, ChiefDocketing and Services Branch

I

FROM: > . Jean Bishop, Secretary,tothe Appeal Board

>RE PACIFIC GAS 6 ELECTRIC COMPANY(Diablo Canyon Nuclear Power Plant,

Units 1 S 2)Docket Nos. 50-275 OL and 50-323 OL

Pursuant to the Commission'; ~ex arte regulations(10 C.F.R. 52.780(b) ); the chairman of the Diablo Can onappeal board requests that you please place t e attacheletter of March 7, 1980 from Miss Zelpha Bates in thepublic document room and serve copies on the parties tothe proceeding.

Attachment

DOCS(>TEO

I'SNRC

MAR $ g fg80office of the Secreta

0ocketirrg & Se

'FAo

+m

Miss 2'dna Boas1595 Los Osos Valley Rood 41C

Los Osos, California 93402MARCH 7, 19eo

DEAR REPRESENTATIVES, O'OV ~ BROWN, AND RICHARD SALZfRAN s

Gentlemen!

REmember the NRC did not even read the safety regulations for DiabloCanyon nuclear plant, by their own admission ~ Remember that thePresident's Commission recommended that the NRC be abog(lished ~

r

NOW THE NR&'wants to hold hearing bout theQfety of Diablo in BEthesdaMaryland, where those who'. lives will be affected can not testify ~

U" to their old tricks/, the people do not count, only the utilities ~

I live in Los 0 sos a community now of 10,000 soon to be 20,000, withONE ROAD ONLY TO GET THOSE PEOPLE TO ANY ASSUMED SAFETY, and that isonly 9 miles from DIABLO.

Further, the NRC LICENSING BOARD dignot even look at the security planswhen it r~led that RGhE had accetable provisions for preventing sabotageand terrorism at Diablo.. The NRC ruling that Diablo is earthquakesafe is riddled with errors to which 73 exceptions have been filed ~

New studies show tha the Hosgri'fault is liked with a series of otherfaults. New information has come out of the Oct, Imparial VAlleyearthquake in which a building toppled during a quake of lessmagnitude than that for which it wags designed.

Tge people must be protected, in fact more than a third of CAlif . isat risk.

PLEASE ASSERT YOURSELF AS AN INTERVENOR UNTIL!1. The seismic issue is properly addressedq2. The evacuation plans are reasonable and workable3. T s sf facts of an ACCIDENT(uncontrolled rad5an ra loads-flic ltdown)at Diablo are completely understood and found acceptable to the populatiminvolved.

T>ere should be incentives to industries to convert to renewable energy.There should be further investigation of the cover-ups and delays at thetime of the TNI accident.

Thank you.

S incere ly~

WI

u~dt;AC

Pg,R g 41980>pffice of the Secre alf

Docketing 8 GNi'+

d

H I LL C H R I sTo P H ER AN D PH I LLIP's P c p~poi~IGLOO M STREET, N. W. ~

WASHINGTONI Do C. 20036

DUMOND PECK HILLRICHARD M PHILLIP5CILBERT C MILLERJOSEPH J. BRIGATIALAN J 8ERKELEYCH*RLE$ LEE E15ENCHERIF SEDKYTHEODORE I PRESSROBERT W OGRENSTEPHEN W,QRAFMANJAME5 RICHARD 0 NEILLKARLAJ LETSCHEMICHELE FAHY MO55CHRISTOPHER 8, HANBACKPAUL C HURDLE ~SAMUEI. O. TURNERPATRICIA HECKMAHN WITTIEWILLIAME PERRYMICHAEL5 MILI.ER

GEOROE I CHRI5TOPHERCARRY E.BROWNALAN ROY DYNNERJUAN Ao oo.REALJAMES O, VAUCHT ERELINOR W CAMMONROBERT A WITTIEHLRBERT H. BROWNRONALD W. STEVENSLAWRENCE COE l.ANPHERROBERT R BELAIRJANET L NICHOLSONRICHARD C 5TEARN5CLIFFORD J ALEXANDERWILLIAMJ, MANNINOJOAN H OREOORYTHOMAS F', COON EY ZTIDONALD W, SMITH

March 17, 1980

FRANCI5 THORNTON GREENECOVNSEL

TELEPHONE (tDt) 45t YOOO

CABLEI HIPHI

TELEX AAOtOQ HIPH Vl

WV 80 AtlWRITER'5 DIRECT DIAL NVMBER

452-7005

Ms. Barbara A. TompkinsSecretary to the Appeal BoardU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Re: In the Matter of:Pacific Gas G Electric Company(Diablo Canyon Nuclear PowerPlant, Units 1 & 2) Docket Nos.50-275; 50-323 O.L.

Dear Ms. Tompkins:

The undersigned will argue on behalf of Edmund G.

Brown, Jr., Governor of the State of California, at the

hearing scheduled for April 3, 1980.

Very truly yours,r

1

Herbert H. Brown,HILL, CHRISTOPHER1900 M Street, N.Washington, D. C.

EsgeAND PHILLIPS, P.C.W.20036

(202) 452-7005

DOCKETEDUSa"'RC

CC See attached Certificate of Service MAP, 4 9(c"-"'g'III~

O$ the SwamiDocI;etiII< E So>'Ie-

rCA


BEFORE THE ATONIC SAFETY AND LICENSING APPEAL BOARD.

In the Natter of ))


(Diablo Conyon Nuclear Power Plant )Units Nos. 1 and 2) )

Docket Nos. 50-275 O.L.50-323 O.L.


I hereby certify that copies of the attached letter to Ms.Barbara A.. Tompkins, dated March 17, 1980, in the above-captionedproceeding, have been served on the following, by deposit in theUnited States mail, fi st class:

Richard S. Salzman, Esq., Chairman .

Atomic Safety and Licensing Appeal BoardU. S. Nuclear. Regulatory CommissionWashington, D. C. 20555

Dr. John H. BuckAtomic Safety and Licensing Appeal BoardU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Dr. W. Reed JohnsonAtomic Safety and Licensing Appeal BoardU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

'Mr. Thomas S. Moore, MemberAtomic Safety and Licensing Appeal BoardU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Elizabeth S. Bowers, EsquireAtomic Safety and Licensing BoardU. S. Nuclear Regulatory- CommissionWashington, D. C. 20555

Mr. Glenn O. BrightAtomic Safety and Licensing BoardU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Nrs. Elizabeth Apfelberg182 Luneta DriveSan Luis Obispo, CA 93401

Dr. William E. MartinSenior EcologistBattelle Memorial Institute'Columbus, Ohio 43201

8DGC:i~7:~J

b-.'.a ~ ~ ~ 'sM

M4{c g c~ l5'~~'p

0!Hcs sf t,'is Sscrc';:ry

C

c9

2.

Philip A. Crane, Jr., EsquirePacific Gas and Electric CompanyRoom 312777 Beale StreetSan Francisco, CA 94106

Mr. Frederick, EisslerScenic Shoreline Preservation Conference, Inc.4623 More Mesa DriveSanta Barbara, CA 93105


Mr. Gordon Silver1760 Alisal StreetSan Luis Obispo, CA 93401

John R. Phillips, Esquire-Simon Klevansky, Esquire.Margaret Blodgett, EsquireCenter for Law in the Public Interest10203 Santa Monica DriveLos Angeles, CA 90067

Arthur C. Gehr, EsquireSnell 6 Wilmer3100 Valley CenterPhoenix, Arizona 85073

Paul C. Valentine, Esquire321 Lytton AvenuePalo Alto, CA 94302

.Yale 1. Jones, Esquire100 Van Ness Avenue19th floorSan Francisco, CA 94102

Janice E. Kerr, EsquireLawrence Q. Garcia, Esquire350 McAllister StreetSan Francisco, CA 94102

Mr. James O. SchuylerNuclear Projects EngineerPacific Gas and Electric Company77 Beale StreetSan Francisco, CA 94106

Bruce Norton, Esquire3216 North 3rd StreetSuite 202Phoenix, Arizona 85102.„,

3 ~

David S. Fleischaker, EsquireSuite 7091735 Eye,Street, N. W.Washington, D. C. 20006

Mrs. Sandra A. Silver1760 Alisal StreetSan Luis Obispo, CA 93401

Atomic Safety and Licensing Appeal PanelU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Atomic Safety and Licensing Board PanelU. S. Nuclear Regulatory CommissionWashington, D.. C. 20555

Docketing and Service SectionOffice of the SecretaryU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Richard B. HubbardMHB Technical Associates1723 Hamilton Avenue — Suite KSan Jose, CA 95125

John MarrsManaging EditorSan Luis Obispo CountyTelegram-Tribune1321 Johnson AvenueP. O. Box 112San Luis Obispo, CA 93406

Andrew Baldwin, Esquire124 Spear StreetSan Francisco, CA 94105

J. Anthony Kline, EsquireLegal Affairs SecretaryGovernor's OfficeState CapitolSacramento', CA 95814

Herbert H. BrownHILLg CHRISTOPHER AND PHILLIPS'E C1900 M Street, N. W.Washington, D. C. 20036

March 17, 1980

UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISS ION


In the Matter ofPACIFIC GAS AND ELECTRIC COMPANY


))

): Docket. Nos. 50-275 O.L.50-323 O.L.

)

q4


Notice is hereby given that the following attorneys enter theirappearance in the above-captioned matter on behalf of Edmund G.

Brown, Jr., Governor of the State of California:

Address:

Telephone Number:

Admissions:

Herbert H. Brown

Hill, Christopher and Phillips, P.C.1900 M Street, N. W.

'ashington, D. C. 20036

(2'02) 452-7005

Supreme Court of the United StatesU. S. Court of Appeals for the

District of Columbia Circuit

Address:

J. AnthonyKline'egal

Affairs SecretaryGovernor's OfficeState CapitolSacramento, California 95814

Admis s ions:

Telephone Number: p .".g~ (916) 445-1915~r,

g+ "-"-"-' " Supreme Court of the United, States'. Supreme Court of the State of Californ

~sg.n ~ ~;.~,-.+ i, Supreme Court of the State of New York

0P~~>>pm~~

'8t '.'-.-r"Nbert H. Brown

HILL~ CHRISTOPHER AND PHILLIPS ~ P ~ C ~

1900 M Street, N. W.Washington, D. C. 20036

March 14, 1980

UNITED STATES OF AMERICA*NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC S'AFETY AND''ICENS'ING APPEAL BOARD

))

PACIFIC GAS AND ELECTRIC COMPANY )

(Diablo Canyon Nuclear Power Plant )Unit Nos. 1 and 2) )


I hereby certify that copies of "NOTICE OF APPEARANCE" forHerbe t H. Brown and for J. Anthony Kline, Attorneys, datedMarch 14, 1980, in the above-captioned proceeding, have beenserved on the following,=by deposit in the United States mail,first class:

Richard S.. Salzman, Esp., ChairmanAtomic Safety and Licensing Appeal BoardU. S. Nuclear Regulatory CommissionWashington., D. C. 20555

Dr. John H. BuckAtomic Safety and Licensing Appeal Board,U. S. Nuclear Regulatory CommissionWashington, D. C. 2055'5

Dr. W. Reed JohnsonAtomic Safety and Licensing Appeal BoardU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Mr. Thomas S. Moore, MemberAtomic Safety and Licensing Appeal BoardU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Barbara A. Tompkins, SecretaryAtomic S'afety and Licensing Appeal BoardU. S. Nuclear'Regulatory CommissionWashington, D. C. 20555

Elizabeth S. Bowers, EsquireAtomic Safety and Licensing BoardU. S. Nuclear Regula"ory CommissionWashington, D. C. 20555

Mr. Glenn O. BrightAtomic Safety and Licensing BoardU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Mrs. Elizabeth Apfelberg182 Luneta DriveSan Luis Obispo, California 93401

Dr. William E. MartinSenior Ecologist,Battelle Memorial InstituteColumbus, Ohio 43201

Philip A. Crane, Jr., EsquirePacific Gas and Electric CompanyRoom 312777 Beale StreetSan Francisco, California 94106

Mr. Frederick EisslerScenic Shoreline Preservation Conference-, Inc.4623 More Mesa DriveSanta Barbara California 93105

I l

Mrs. Raye Fleming1920 Mattie RoadShell Beach, California 93449


John R. Phillips, EsquireSimon Klevansky, EsquireMargaret Blodgett, EsquireCenter for Law in the Public Interest10203 Santa Monica DriveLos Angeles, California 90067

Arthur C. Gehr, EsquireSnell & Wilmer3100 Valley CenterPhoenix, Arizona 85073

Paul C. Valentine, Esquire321 Lytton. AvenuePalo Alto, California 94302

Yale I. Jones, Esquire100 Van Ness Avenue19th floorSan Francisco, California 94102

Janice E. Kerr, EsquireLawrence Q. Garcia, Esquire350 McAllister StreetSan Francisco,'alifornia 94102

r „p

Mr. James O. SchuylerNuclear Projects EngineerPacific Gas and Electric Company77 Beale StreetSan Francisco, California 94106

Bruce Norton, Esquire3216 North 3rd StreetSuite 202Phoenix, Arizona 85102

David S. Fleischaker, EsquireSuite 7091735 Eye Street, N. W.Washington, D .. C. 20006

Mrs. Sandra A. Silver1760 Alisal StreetSan Luis OBispo, California 93401

Atomic Safety and Licensing Appeal PanelU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Atomic Safety and Licensing Board PanelU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Docketing and Service SectionOffice of the SecretaryU. S. Nuclear Regulatory CommissionWashington, D. C. 20555


John MarrsManaging EditorSan Luis Obispo CountyTelegram-Tribune1321 Johnson AvenueP. O. Box 112San Luis Obispo, California 93406

Andrew Baldwin, Esquire124 Spear StreetSan Francisco, California 94105

March 14, 1980

r/

Herbert H. DrownHILLg CHRISTOPHER AND PHILLIPS g P ~ C

1900 M Street, N. W.washington, D. C. 20036

UNiTED S ATES Or ~~'" RICANUCLEAR REGULATORY CO?L~IISSION

BEFORE THE CO?~iMISSION

)In the Matter of: )

)PACIFIC GAS & ELECTRIC )

COMPANY )(Diablo Canyon Nuclear '

)Power Plant, Units 1 6 2) )

)

Docket Nos. 50-275 O.L.50-323 O.L.

JOINT INTERVENORS'EQUEST TO STAYORAL ARGU?ANT ON THE SEISMIC ISSUFS

The Joint Intervenors request the Commission to stay

oral arcument on the seismic 'ssues before the Appeal Board,

presently scheduled for April 3, 1980, so that the Commission

will nave adequate time to evaluate the important questions

raised in the JOINT INTERVENORS'EQUEST FOR THE COMMISSION'S

EARLY INTERCESSION OR, IN THE ALTERNATIVE, RECONSTITUTION OF

THE APPFAL BOARD.

MARCH 13, 1980


g~P V r ML~l~David S. Fleischaker, Esq.

1735 Eye Street, N.N.Suite 709washington, D.C. 20006(202) 638-6070

John R. Phillips, Esq.CENTER FOR LAN INTHE PUBLIC INTEREST10203 Santa Monica BoulevardLos Angeles, California 90067(213) 879-5588

Attorneys For Joint intervenors

UNIT"D STATES OF AFRICANUCLEAR REGULATORY COi~DISSION

I

BEFORE THE CO&IIS S ION

In the Matter of:PACIFIC GAS & ELECTRIC

COI &ANY(Diablo Canyon NuclearPower Plant, Units 1 G 2)

Docket Nos. 50-275 O.L.50-323 O.L.


I hereby certify that on tnis 13th day of March, 1980,

I have served copies of the foregoing JOINTINTERVENORS'=-QUEST

TO STAY ORAL ARGUMENT ON THE SEISMIC ISSUES, mailing

them through the U.S. Mails, first-class, postace prepaid,

and by hand-delivery to those parties designated by an

asterisk.

Joseph M. Hendrie,Commissioner

U.S. Nuclear Regulatory.Commission

1717 H Street, N.N.Washington, D.C. 20555

Vic or Gilinsky,Commissioner


1717 H Street, N.N.Yashington, D.C. '0555

Richard T. kennedy,Commissioner

U. S. Nuclear Regulatory* Commission

1717 H Street, N.N.h'ashington, D.C. 20555

Peter A. Bradford,Con~aissioner

U.S. Nuclear Regulatory* Commission

1717 H Street, N.W.;;ashington, D.C. 20555

John F. Ahearne,Chairman

U. S. Nuclear RegulatoryCommission

1717 H Street, N-N-Nashington, D.C. 20555


Atomic Safety & LicensingAppeal Panel

U-S. Nuclear ReculatoryCommission

4350 East Nest HighwayBethesda, ?'.aryland 20014

Dr. W. Reed JohnsonAtomic Safety & Licensing


Commis s ion4350 East Nest HighwayBe hesda, Maryland 20014

Dr. John H. 3uckAtomic Safety & Licensing

Appeal PanelU.S. Nuclear Reculatory

Commis s ion4350 East Nest HichwayBethesda, ~maryland 20014

Elizabeth S. Bowers, Esq.Chairman

Atomic Safety & LicensingBoard


? lai 1 Drop = st Nest 450Nashington, D.C. 20555

Glenn O. BrightAtomic Sa ety & Licensing

BoardU.S. Nuclear Reculatory

Commission?~~ail Drop East Nest 450Nashington, D.C. 20555

«illiam E. YartinBattelle ?!emorial InstituteColu~>usi Ohio 43201

Docket & Service SectionOffice of the SecretaryU.S. Nuclear Regulatory

CommissionNash'ngton, D.C. 20555

James R. Tourtellotte, Esq.L. Dow Davis, Esq.?fare R. Staenberg, Esq.Edward G. Eetchen, Esq.Office of the Executive Legal

Director — 3ETH 042U.S. Nuclear Regulatory

CommissionNashington, D.C. 20555

mrs. El'zabeth Apfelbergc/o Nancy Culver182 Luneta DriveSan Luis Ob'spo, CA 93401

Nr. Frecerick EisslerScenic Shoreline Preservation

Conference, Inc.4623 ?fore ?!esa DriveSanta B=rbara, CA 93105

Sandra. A S liver1760 Alisal StreetSan Lu's Obispo, CA 93401


John Phillips, Esq.Center For Law Zn The

Public 'interest10203 Santa monica BoulevardFath FloorLos Anceles, CA 90067

Bruce Norton, Esq.3216 N. Third StreetSuite 202Phoenix, Arizona 85012

Yir. Yale X. Jones, Esq.100 Van Ness Avenue19th FloorSan Francisco, CA 94102

Andrew Baldwin, Esq.Friends of the Eartn124 Spear StreetSan Francisco, CA 94105


Janice E. Kerr, Esq.Lawrence Q. Garcia, Esq.J. Calv'n Simpson, Esq.California Public Utilities

Commission5246 State Building350 NcAllister StreetSan Francisco, CA 94102

'Malcolm H. Furbush, Esq.Vice President andGeneral Counsel

Philip A. C ane, Esq.Pacific Gas & Electric Company31st Floor77 Beale Street, Room 3127San Francisco, CA

94106'rthur

C. Gehr, Esq.Snell & ililmer3100 Valley CenterPhoenix, Arizona 85073

~mrs. Raye Fleming1920 ?pattie RoadShell Beach, CA 93449

5KB Technical Associates1723 Hamilton AvenueSuite KSan Jose, CA 95125



the GovernorState Capitol BuildingSacramento, Cali ornia 95814

Herbert H. Brown, Esq.Hill, Christopner & Phillips1900 N Street, N.N.7lashington, D.C. 20036

David S. Fleischaxer, Esq.

~ltAft'4e< P0

se

a tsOg

seY/

+n ~O+a*++

UNITEDSTATESNUCLEAR REGULATORY COMMISSION

WASHINGTON, D. C. 20555

Mare 6, 1980

QPrae r

9

Richard S. Salzman, Esq., ChairmanAtomic Safety 8 Licensing Appeal BoardU.S. Nuclear Regulatory CommissionWashington, D. C. 20555

Mr. Thomas S. Moore, Esq.Atomic Safety 8 Licensing Appeal BoardU.S. Nuclear Regulatory Commission-Washington, D. C. 20555

Dr. Reed JohnsonAtomic Safety 8 Licensing Appeal BoardU.S. Nuclear Regulatory CommissionWashington, D, C. 20555

In the Matter ofPacific Gas and Electric Company

(Diablo Canyon Nuclear Power Plant, Units Nos. 1 and 2)Docket Nos. 50-275 O.L. and 50-323 O.L.

Gentlemen:

Pursuant to the Appeal Board's request contained in the first prehearing conferenceorder dated February 25, 1980, this is to notify the Appeal Board that James R.Tourtellotte will be principally responsible for the conduct of the proceedingon behalf of the NRC Staff. Attached is a copy of Mr. Tourtellotte's appearanceform so designating him as Lead Counsel.

Sincerely,

Enclosure as stated

Br;Jam/s R. TourtellotteAssi stant Chi ef Hearing Counsel

cc (w/ encl.):Elizabeth S. Bowers, Esq.Mr. Glenn 0. BrightMrs. Elizabeth ApfelbergDr. William E. MartinPhilip A. Crane, Jr ., Esq.Mr. Frederick EisslerMrs. Raye FlemingMr. Gordon SilverJohn R. Phillips, Esq.Arthur C. Gehr, Esq.Paul C. Valentine, Esq.Yale I. Jones, Esq.Janice E. Kerr, Esq.Mr. James 0. Schuyler

Bruce Norton, Esq.David S. Fleischaker, Esq.Mrs. Sandra A. SilverAtomic Safety 5 Licensing Appeal PanelAtomic Safety I| Licensing Board PanelDocketing and Service SectionRichard B. HubbardJohn MarrsAndrew Baldwin, Esq.Herbert H. BrownJ. Anthony Klein



In the Matter of



Docket Nos. 50-275 O.L.50-323 O.L'.


Notice is hereby given 'that. the undersigned attorney herewith enters an

appearance in the captioned matter. In accordance with 52.713(a), 10 CFR

Part 2, the following information is provided:

Name

Address

Telephone Number

Admissions

Name of Party

James R. Tourtellotte

U.S. Nuclear Regulatory CommissionOffice'f the Executive Legal DirectorWashington, D. C. 20555

Area Code 301 - 492-7474

Supreme Court for the State of Oklahoma


NRC StaffU.S. Nuclear Regulatory CommissfonWashington, D. C. 20555

James R. ToortellotteLead Counsel for the NRC Staff

Dated at Bethesda, Marylandthis 5th day of March, 1980

~ ~g llf0II~ 0

ClO

I

Cy

+e*w+

UNITED STATESNUCLEAR REGULATORY COMMISSION

ATOMICSAFETY AND LICENSING APPEAL PANELWASHINGTON, O.C. 20555

I

March 6, 1980

OCCAM(ETEO

USNFIG

MAR i 0 1980nOffice 0f tfIe Sectdgg

Dccfn'.ting 4 8@59

Electric Company

Ms. Tracey Hopkinsc/o S.U.N-.P. 0. Box 772Ojai, California 93023

Re: Pacific Gas and(Diablo Canyon Nuclear Power Plant,

Units 1 and 2)Docket Nos. 50-275 and 5Q-'32~3

Dear Ms. Hopkins:

Mr. Salzman, the Chairman of the Appeal Board assigned tothis case, has received your letter of February 28, 1980, andits enclosures. These express your organization's oppositionto Pacific Gas and Electric 'Company's Diablo Canyon NuclearPower Plant and ask that it not be licensed to operate.

The Chairman has instructed me to inform. you that, as amatter of law, the decision whether to license, the nuclear fa-cility must rest entirely on the evidence introduced into therecord at the hearing before the Licensing Board. Consequently,your letter. and the material that accompanied it may not be ~

taken into account in making that decision. Moreover, as youmay not be aware, Commission regulations prohibit the Boardmembers from entertaining off-the-record, ex parte communica-tions, like your letter, that deal with matters at issue in acontested proceeding. See Title 10 of the Code of FederalRegulations, section 2.780, a copy of which is enclosed foryour information. As that regulation requires, a copy of yourletter and its accompanying papers will be placed in the Com-mission's public document room and served on the parties to theproceeding.

.Your interest. in the proceeding is understandable. How-ever, X am sure that a moment's reflection will lead you toappreciate why off-the-record, ex parte attempts b~ ~an sideto influence those who must decide these matters zs sample notpermissible and must be disregarded.

'

Ms. Tracey Hopkins

For your further information, the Appeal Board announcedlast, month that oral argument of the appeal on the seismicquestions would be held in San Luis Obispo, the Board membershaving to be there on other business at that time in any event.lt will begin at 9:30 a.m. on April 3rd in Room 302 of the OldCounty Courthouse. You, and other members of the public, arewelcome to attend for the purpose of observing'he argument.

Very truly yours,

C. J n BishopSecretary to the

Appeal Board

Enclosure

cc: All partiesPublic document room

decline to listen to such communfca-tfon and wiQ explain that the matterts pending for determination. Ifunsuc-cessful in'reventing such. communica-tion, the recipient thereof wiQ advisethe communicator that a written sum-mary of the conversation wiQ be deliv-

review on fts own motion of a Direc-tor's denial under 10 CFR 2.206(c)..(Sec. 102, 83 Stat. 853; 42 UD.C. 4332)(39 FR 24219, July 1, 1974; as amended at 43FR 22346. May 25, 1978]

~

'hapterl—Nuclear Regulatory Cemmhsion g R7g

(g) Extend time for Commission

Ex PhRTE COMMuNzchTIONS

g 2.780 Ex parte communfcaltons.(a) Except as provided In paragraph

(e) of this section. neither (1) Commis-sioners, members of their immediatestaffs, or other NRC officials and em-ployees who advise the Commtssfonerstn the exercise of their quasi-judicialfunctions wfQ request or entertain offthe record except from each other, nor(2) any party to a proceeding, for theissuance, denial, amendment. transfer',renewal, modification, suspension, orrevocation of a license or permit, orany officer, employee, representative,or any other person directly or indi-rectly actfng in behalf thereof. shaQsubmit off the reco'rd to Commission-ers or such staff members, officials,and employees, any evidence, explana-tton, analysis, or advice, whether writ.ten or o'ral, regarding any substantivematter at issue fn a proceedfng on therecord then pending before the NRCfor the issuance, deniaL amendment,transfer, renewal, modification, sus'-pension, or revocation of a lfcense orpermit. For the purposes of this sec-tion, the term "proceeding on, therecord then pending before the NRC"shall tnciude any application or matterwhich has been noticed for hearing orconcerning'which a hearing has beenrequested pursuant to this part.

(b) Copies of written communfca-tions covered by paragraph (a) of thissection shall be placed in the NRCpublic document room and served bythe Secretary on the communicatorand the parties to the proceeding in-volvecL

(c) A Commissioner, member of hisimmediate staff, or other NRC officialor employee advtsfng the Conunissfon-ers in the exercfse of their quasi-judi-cial functions, to whom fs attemptedany oral communication concerningany substantivq matter at issue in aproceeding on the record as describedin paragraph (a) of this section, wiQ

8

ered to the NRC public documentroom and a copy served by the Secre-tary of the Commission on the com-municator and the parties to the pro-ceeding involved. The recipient of theoral communication thereupon willmake a fatr, written stunmary of suchcommunfcatfon and deUver such sum-mary to the NRC public documentroom and serve copies thereof uponthe communicator and the parties tothe proceeding involved.

(d) This section does not apply tocommunications authorized by para-graph (e) of this section, to the dispo-sition of ex parte matters authorizedby law, or to communications request-ed by the Commtssfon concerning:

(1) Its proprietary functions:(2) General, health and safety prob-.

lems and responstbilitfes of the Com-mission: or

(3) The status of proceedings.(e) In any adjudication for the deter-

mination of an applicatfon for initiallicensing, other than a contested pro-ceeding, Commissioners, members oftheir immediate staffs and other.NRCofffcfals and employees who advise theCommfssioners in the exercise of thefrquasf-judicial functtom may consultthe s~, and the staff may communi-cate with Commissioners, members oftheir immediate staffs and other NRCofficials and employees who'advise theCommissioners fn the exercise of theirquasi-judicial functions..

(f) The provisions and limitations ofthis section applicable to Commission-ers, members of their immediatestaffs, and other NRC officials andemployees who advise the Commis-sioners in the exercise of their quasi-judicial functfons are applicable tomembers'f the Atomic Safety and Li-censing Appeal Board, members oftheir immediate staffs, and other NRCofficfals and employees who advisemembers of the Appeal Board in theexercise. of their quasi-judfcial func-tions.

C'

Mr. Richard SalzmanChairman of the Atomic Safety

and Licensing Appeal Panel4350 East-West HighwayBethseda, Maryland 20014

Dear Mr. Salzman,

February 28, 1980cc~r<ETs9

USRRQ

MAR.i 0 $80>GfGcs ofQs SecretaryQWfrm

@Service

Branch

We, known as a member group of the Abalone Alliance calling

ourselves S. U.. N. (Stop Uranium Now) urge you to NOT grant an

operating license to the Diable Canyon Nuclear Power Plant located

in San Luis Obispo for the following factual and valid reasons:

1) San Simeon-Hosgri fault is less than two and one-half miles

away from the plant. The site has a potential for earthquakes

eight to ten times stronger than the plant was designed to with-

stand.

2) The plant would have to be operated at a 99.9 percent margin

of safety which is impossible due to the possibility and probabi-

lity of human error.

3) A power plant produces tons of plutonium a year - and man has

no safe disposal of it plus, it stays radioactive and deadly for

thousands of years.

4) No method for long-term storage or disposal of these radio-

active wastes has been proven. All proposed techniques for storing

these wastes are in a research or development stage.

S) Nuclear power plants have a life span of 30 years. After

Mr. Richard SalzmanFebruary 28, 1980Page two

30 years they become too radioactive to use, work in, or simplylive around. Like their waste, nobody knows quite what to do

with these dead reactors, therefore these dead reactors are so

thoroughly poisoned with very high levels of radiation that each

plant must be considered a permanent hazard to the public healthfor'enturies.

a) these inoperable plants can not be dismantled or moved

without monstrous "taxpayers" expense. Thus, for centuries,;. perhaps. forever, these abandoned radioactive hulks will

remain where they are being built.6) Radioactive waste causes cancer, mutations and — death when

mixed with humans.

7) The cost of the plant has risen to $ 1.4 billion from an

original estimate of $ 350 million - a 400 percent cost overrun.

8) See Information Sheet 84 attached and brochure entitled"A Very Ugly Fact About Every Nuclear Power Plant" also attached.

We would like to add very strongly our opposition to the hearings

being held in Maryland. WHO CARES ABOUT DIABLO IN MARYLAND? The

concern is here in California where people will be affected by the

plant when and if it is in operation. We would then like to know

the reason s wh the hearin s will be held in Mar land and when?

In consideration of the facts and views presented here we urge

Mr. Richard SalzmanFebruary 28, 1980Page three

you, then, to make the right decision and refuse Diablo Canyon Nuclear

Power Plant an operating license.Thanking you very much for taking the time to read our appeal.

Most sincerely,

Trace Hopkinsfor S.U.N. (Stop Uranium Now)a member group of the AbaloneAlliance

P. 0. Box 772Ojai, California 93023(805) 646-3832

TH:cahEnclosures

~ cc: Representative Leon Panetta437 Canon BuildingWashington, D. C. 20515

P. S. We would appreciate a copy of the final report on the hearingsas soon as they become available. We will pay postage ifnecessary.

Information Sheet 44

DIABLO CANYON NUCLEAR POWER PLANT Backgxound Information:pacific Gas & Electric Company, the -Nation's second largest private-

owned utility company, has completed the construction of its nuclearpower plant at Diablo Canyon. Located on the Pacific Coast 2.5 milesfrom the San Simeon-Hosgri Fault Zone, the site has a potential forearthquakes 8 to 10 times stxonger than the plant was designed to with-stand. The cost of the plant has risen to $1.4 billion from an originalestimate of $ 350 million dollars, a 400% cost overrun.

"Diablo" is planned to contain as much long-,lived radioactivity aswould be released by the explosion of 1000 bombs the size of the one theU. S. Government dropped on Hiroshima in 1945. Besides the threat of a"meltdown," the plant will —should it go "on line" —cause thermaland radioactive pollution as well as produce solid, liquid and gaseousradioactive wastes; not counting radioactive fuel waste, for which thereis no known safe method of storage. *

The electricity from the Diablo Canyon nuclear plant is not needed'itherby people or business, with one exception: Pacific Gas and'lec-,tric needs to sell the electricity fiom this plant so that it can recoupits very substantial financial investment. They now need to pay for the

results of poor energy planning.STOp UEVLNIUM NOW (SUN), formed in Ojai in August 1978, is a member

of the statewide Abalone Alliance. 's part of the Alliance, we arecommitted to a permanent halt on nuclear power plant construction andoperations in California. We recognize nucleax power as dangerous toall life. We encourage the real altexnatives of conservation and safe,clean, and renewable sources of energy-

Ãe also recognize that: 1) The much advertised "need" for nuclearenergy is derived-from faulty and inflated projections of consumptionbased on a profit system hostile to conservation. The United States ofAmerica has 6% of the World's population consuming over 30% of itsenergy resources. With a rational energy policy and appropriate changesin construction and recycling procedures, the alleged "need" for nuclearenergy disappeaxs; 2) Nuclear plants are an economic catastrophe. Theyare unreliable and inefficient. Nuclear power is an extremely capitalintensive technology. In contrast, conservation. and solar related enexgytechnologies will create many more jobs, hoth permanent and safe, thanthe atomic industry could ever provide; 3) The centralized nature ofnuclear power takes control of energy away from local communities; 4)There is a direct relationship between nuclear plants and nuclear weapon's;5) The dangers of nuclear .power are intolerable. They range from a con-tinuous flow of low-level radiation which can cause cancer and geneticdamage, to the creation of deadly radioactive wastes which must be com-pletely isolated from the environment for 250,000 years, to the destruc-tion of our rivers, lakes and oceans by radioactive and thermal pollution,to the possibility of a major meltdown catastrophe. NO MATERIAL GAIN,REAL OR IMAGINED, IS WORTH THE ASSAULT ON LIFE THAT NUCLEAR ENERGYREPRESENTS.

(continued on back)

~ p

g

j 'I /continued from other side )

».~.. ghe Abalone Alliance, and SUN as a member group, has pledged tobhaga:a nonviolent action campaign to build a more loving and responsible,mo~d for ourselves, our children, and future generations of all livingth'ings "en this planet. We appeal to all people to join with us.

HOMESTAKE MINING COMPANY IN OJAI Background Information: ~ g

When uranium is mined, two highly carcinogenic radioactive sub-stances aze released, radium and radon. Radium, an alpha emitter witha half-life of 1,600 years, is a decay product of uranium found inuranium ore. Radon, a gas, is a decay product o'f radium.

There is no such thing as a safe dose of radiation with respect tocancer, leukemia, or genetic mutation injury.

There is no safe way know to dispose of radioactive wastes.Despite all this, Homestake Mining Company, a multi-national corpo-

ration headquartered in San Francisco with profits of $ 127 milliondollars in 1977, wants to strip-mine for uranium above our local majorwater supply, Lake Casitas. Homestake is basing its right to mine onthe federal 1872 Mining Act, which established the legality of destruc-tion of public property by mining interests. Later laws dealing specifi-cally with National Forests have given mineral development priority over"outdoor recreation, range, timber, watershed, and wildlife and fishpurposes."

The Casitas Municipal Water District (CMWD) hired a consultinggeologist, Robert, T. Bean, to go over Homestake's plans of operations.Bean concluded "Pollution by radionuclides of both surface water andground water would be very difficult if not impossible to eliminate

if'hedrilling should be carried out." Bean's report also points out thatone of the possible pollutants is radium-226, "the most toxic of allinorganic materials. "

The U. S. Congress has spent $ 20 million so far to purchase privatelands contiguous to the National Forest —in order to preserve thepurity of the Lake Casitas watershed. Eventual expenditures for thewatershed preserve are expected to total $ 55 million dollars.

Once radioactive substances are released ino the ecosphere, theystay there for thousands of years, constantly emitting radioactiveparticles.

There have been at least three instances of radioactive pollutionto the environment caused by Homestake Mining Company operations in NewMexico and Colorado. In two of these incidents. within the last two years,Homestake-run operations have suffered accidents resulting in the releaseof 50,000 gallons of contaminated liquids onto New Mexico land.

On May 2, 1979, the federal House Interior Committee voted to with-draw the 69,000 acres of federal watershed where Homestake Mining Companywants to mine in Ojai; for a period of three years. Hopefully, thethree-year freeze vill give SUN and other groups in Ojai time enough topermanently withdraw the land from mineral exploration, thus effectivelydenying Homestake's claim once and for all.

STOP URANIUM NOW (SUN), Box 772, Ojai, CA., 93023 —(805) 646-3832

Is thisOclF

NuclearFutures

'I1

AntlclpetlonlOemma

/,/'~

There are alternatives to nuclear plants for the pro-duction of electric power without creating such seri-ous threats for the health of our people, our childrenand grandchildren In the years, ln the decades tocome.

Your government, your utilities will develop the ahternatives to nuclear power more quickly if you de-mand fo know why the American people have not beentold—W that large commercial nuclear plants become

poisoned with very high levels of radlat(on.

W that unless nuclear power plant construction ishalted, hundreds of these radioactive nuclear hulkswill be littering our nation In the years ahead,threatening lives for centuries to come.

~ s

N~ Jersey/AP

WriteOr. James SchlesingerSecretary of EnergyAttn. James BishopThe White HouseWashington, O.C. 20500Charles WarrenChairmanCouncil on Environmental

Quality722 Jackson Place. NWWashington, D.C. 20006Senator Robert ByrdMajority LeaderThe CapitolWashington, D.C. 20510

President Jimmy CarterThe White HouseWashington, O.C. 20500Vice PresidentWalter MondaleThe White HouseWashington, D.C. 20500

Rep. Thomas P. O'eill Jr.Speaker of the HouseThe CapitolWashington, D.C. 20515

Write your Governor and ask him wh your state utilitycommission has not warned the citizens of your stateof the very ugly fact about every nuclear power plant.

NATURAL RESOURCES DEFENSE COUNCiL: a con-servation organization dedicated to helping developalternatives to nuclear energy for the production ofelectric power in the years ahead.

NATURALRESOURCES DEFENSE COUNCIL1725 Eye Street, N.W.

Washington, D.C. 20006Copies available $5.00 per hundredNRDC, 1725 Eye Street. N.W., Washington, D.C. 20006

Order a supply of these pamphlets. Help to inform yourfriends.

MAR g 0 iggg@ 10

Office of tfie ~ej2+OocRetiag 4~

Braacjt

e

icsvi

Herr JereerlAP

The electric power industry uses the income fromyour utilitybills to construct generating plants to pro-duce electricity to serve your needs.

In the decades ahead, the electric power Industrywould like to be generating a major portion of the na-tion's electricity from nuclear plants.

The electric power Industry has already constructed67 nuclear plants. Government surveys state thatutilities would like to build over 250 more nuclearplants in the next 25 years.

Nuclear power plants have been built or are pfannedfor construction In virtually every State in ournation—by streams, rivers and lakes, in bays and es-tuaries, near cities and In the countryside.

Nuclear'ower

plants are even being planned for offshoreareas along our ocean coasts.

Let us tell you a very ugly fact about everynuclear power plant ~ ~ . o fact that yourutllltlos do not toll you... e fact that thoUnited States Department of Energy hasnot told you.

~ After approximately 30 years of operation eachnuclear power plant will no longer be operable. Theplant willbe so radioactive that It willhave to be sealedand guarded for centuries.

~ After approximately 30 years of operation eachplant is so thoroughly poisoned with very high levels ofradiation that each plant must be considered a perma-nent hazard to the public health for centuries.

The process of radioactive poisoning begins fromthe moment that the first atomic fuel core is insertedinto a plant. The radiation levels in the plant structurerise steadily week after week, month after month, yearafter year as a succession of atomic fuel cores areinserted into a plant, used In the generation of electric-ity, and are extracted from the plant.

Every nuclear plant operating today, or plannedfor construction, wherover that plant Is locatod. ~ ~ by a stroam, a river, a lake, by a bay or es.

tuary, noar a city, In the countryside or alongour coasts ~ .. every nuclear plant, costinghundreds of mlllionsr usually billions of dollars,built with the electric utility bills you pay, be-comes so poisoned with radiation aftor approx.)mately 30 years of operation that it must beclosed, thon sealed and guarded for centuriesto make certain that no one,'hild or adult,comes Into contact with its lothal radioactivity.

The radioactive poisoning of a plant is a normal partof the nuclear power generating process. This radioac-tive poisoning of a plant is not by accident. Plant em-ployees work on shorter and shorter shifts over theyears as radiation levels steadily rise ln order to reducetheir exposure to progressively higher radiation levels.

Nuclear scientists know that each plant becomeshighly contaminated with radiation. Their term for thesealing process is "decommissioning."

Those Inoporablo plants cannot be dismantlodor moved without monstrous expense and ttemondous risk of exposure to radloactlvlty be-cause of the tons of thousands of tons of steeland concrote ln each plant that are pcrmoatodwith intense radiation. Scientists estimate thatthe radloactlvlty ln each of these poisoned nu-clear structures willbo a threat to health for atleast 200 years. Thus for conturles, porhapsforevor, these abandoned radloactlvo hulks willremain where thoy are being built.

The electric power industry is pressing the govern-ment to spend tens of billions of your tax dollars topromote an entirely new type of nuclear plant to pro-duce electricity-the Liquid Metal Fast Breeder Reac-tor (LMFBR). Breeder reactors willbe plagued with thesame lethal problems as traditional atomic powerplants.

Your utilitybills which pay for current nuclearwer ants an our ut t es os res or t o

nvostmont o tens o t ons o our ~ era taxdollars ln LINFBR !ants can result ln a nuclearwastolan .

arooyifntnronmentel Action

cc: Representative Leon Panetta.437 Canon Building ~Washington, D. C. W515

FEBRUARY 13, 1980

MR. RICHARD SALZMANCHAIRMAN OF THE ATOMIC SAFETY

AND LICENSING APPEAL PANEL4350 EAST-NEST HIGHWAYBETHSEDA, MARYLAND 20014

0

usmc

RyO $80

NE, THE PEOPLE OF VENTURA AND SANTA BARBARA COUNTIES SUBMIT THISLETTER IN PROTEST OF THE LICENSING OF THE DIABLO CANYON NUCLEAR

POl'IER PLANT IN SAN LUIS OBISPO COUNTY. NE URGE YOU NOT TO GRANT

AN OPERATING LICENSE TO PACIFIC GAS AND ELECTRIC ON THE GROUNDS

THAT THE DIABLO CANYON NUCLEAR PONER PLANT IS UNSAFE DUE TO THE

ACTIVE EARTHQUAKE FAULT '(SAN-SIMEON-HOSGRI FAULT) LOCATED TWO

AND'NE-HALF.,MI'LES AWAY, THEREFORE POSING A HAZARD TO ALL PERSONS

RESIDING IN SOUTHERN CALIFORNIA.

C

cc.: Representative Leon Panetta~ 437 Canon BuildingWashington, D. C. 2%515


AND LICENSING APPEAL PANEL4350 EAST-NEST HIGHWAYBETHSFDA, MARYLAND 20014

FEBRUARY 13, 1980

GC t(r gg

VQHRC

MAR ~0 ]gag~OfC~of tte Ssoae~ /

~ SLCENag 4 Seneca 1rSNlCtl

WE, THE PEOPLE OF VENTURA AND SANTA BARBARA COUNTIES SUBMIT THIS

LETTER IN PROTEST OF THE LICENSING OF THE DIABLO CANYON NUCLEAR

POWER PLANT IN SAN LUIS OBISPO COUNTY. WE URGE YOU NOT TO GRANT


THAT THE DIABLO CANYON NUCLEAR POWER PLANT IS UNSAFE DUE TO THE

ACTIVE EARTHQUAKE FAULT ''(SAN-SIMEON-HOSGRI FAULT) LOCATED TWO

AND'"ONE"HALF..MILES AWAY, THEREFORE POSING A HAZARD TO ALL PERSONS


n e "A'~ 90/4 4,

cAJ

c5 S

~SEW( ~~~> ~ i L' ~ * ~ ~~

cc: Representative Leon Panetta-. 437 Canon Building ~

washington, D. C. M515


AND LICENSING APPEAL PANEL'350EAST-NEST HIGHWAY

BETHSEDA, MARYLAND 20014

FEBRUARY 13, 1980

QOGKETso

USNRC

MAP ) Q ~88'>~~csof8saaeAC{glggggg~

WE, THE PEOPLE OF VENTURA AND SANTA BARBARA COUNTIES SUBMIT THISLETTER IN PROTEST OF THE LICENSING OF THE DIABLO CANYON NUCLEAR



THAT THE DIABLO.CANYON NUCLEAR POWER PLANT IS UNSAFE DUE TO THE

: ACTIVE EARTHQUAKE FAULT '(SAN-SIMEON-HOSGRI FAULT) LOCATED TWO

AND':ONE-HALF.MILES AWAY, THEREFORE POSING A HAZARD TO ALL PERSONS

RESID NG IN SOUTHERN CALIFORNIA.

C4

cc: Representative Leon Panetta'. ". 437 Canon Building ~washington, D. C. %F515

FEBRUARY 13, 1980r«o ~ «J


AND LICENSING APPEAL PANEL4350 EAST-NEST HIGHWAYBETHSEDA, hiARYLAND 20014

MAR ".01980'ffice

of the Secreta+Oocketinft 5 SCKN ~I

c, BIatfcbCA59f~

NE, THE PEOPLE OF VENTURA AND SANTA BARBARA COUNTIES SUBMIT THISLETTER IN PROTEST OF THE LICENSING OF THE DIABLO CANYON NUCLEAR



THAT THE DIABLO CANYON NUCLEAR POWER PLANT IS UNSAFE DUE TO THE

ACTIVE EARTHQUAKE FAULT '(SAN-SIMEON-HOSGRI FAULT) LOCATED TNO

AND'='ONE-.HALF..MILES AWAY, THEREFORE POSING A HAZARD TO ALL PERSONS


/~ 'C " J' -" ''. -/~ rr F- '' C-"'- ~ C ii/i1./

I/r> ) r r 6 " '4" > «s'r r "~ i J ) - C i,r.l>..r"'r/ i-. C. ~ <. „, (

rn'r

"r(4«L. t'L/(~VS '-+ 7 .-~ l,.+i, i+ JE'

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/'0/

0

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BO

MAR g '„"-„"Qp

Otiice of ti.a Sac;eLIp005Ã6~<Dg s% a Jt tgQ

Erar<Cla

In the Matter of



Docket Nos. 50-275 O.L.50-323 O.L.


Notice is hereby given that the undersigned attorney herewith enters an



Name

Address

Telephone Number

Admissions

Name of Party

James R. Tourtellotte

U.S. Nuclear Regulatory CommissionOffice of the Executive Legal DirectorWashington, D. C. 20555

Area Code 301 - 492-7474

Supreme Court for the State of Oklahoma


NRC StaffU.S. Nuclear Regulatory CommissionWashington, D. C. 20555


James R. TourtellotteAssistant Chief Hearing Counsel

for the NRC Staff


BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOA

ore.'~.",;—.-o

U.-. « ~~ ~ 's ~

V.f-'3

CgoslCdil~ < >vo ~ iu+Clc fi~;.

In the Matter of

PACIFIC GAS'AND ELECTRIC COMPANY


Docket Nos. 50-275 O.L.50-323 O.L.


Notice fs hereby given that the undersigned attorney herewith enters an



Name

Address

Telephone Number

Admissions

Name of Party

L. Dow Davis

U. S. Nuclear Regulatory CommissionOffice of the Executive Legal DirectorWashington, D. C. 20555

Area Code 301 - 492-7501

District of Columbia Court of Appeals

~ - Supreme Court of the United States

U.S. District Court for the Districtof Columbia



L. Dow DavisCounsel for the NRC Staff


BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOA

y$~l jWcd%

1

f.~> ~ a( E'

.1 ~

Otic. a;,.'~ z;.,

Bmg."q

In the Matter of


(Diablo Canyon Nuclear Poer PlantUnit Nos. 1 and 2)

Docket Nos. 50-275 O.L.50-323 O.L.





Name

Address

Tel ephone Number

Admissions

Name of Party

Edward G.'Ketchen


Area Code 301 - 492-7502

Supreme Court of Tennessee





t

( w C LEdward G. KetchenCounsel for the NRC Staff

UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION QS

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BO D"'

In the Matter of



Docket Nos. 50-275 O.L.50-323 O.L.





Name

Address

Telephone Number

Admissions

Name of Party

Mare R. Staenberg


Area Code 301 - 492-8689

Supreme Court of New Jersey




g/,ar. R. Staenberg

Counsel for the NRC taff



/0 jt,

t

>iZi1Cij

In the Matter of



Docket Nos. 50-275 O.L.50-323 O.L.


I hereby certify that copies of "NOTICE OF APPEARANCE FOR JAMES R. TOURTELLOTTE" and

"NOTICE OF APPEARANCE FOR L. DOW DAVIS" and "NOTICE OF APPEARANCE FOR EDWARD G. KETCHEN"

and "NOTICE OF APPEARANCE FOR MARC R. STAENHERG", dated March 5, 1980 in the above-

captioned proceeding, have been served on the following, by deposit in the UnitedStates mail, first class, or, as indicated by an asterisk through deposit in theNuclear Regulatory Commission's internal mail system, this 5th day of March, 1980:

+ Richard S. Salzman, Esq., ChairmanAtomic Safety and Licensing Appeal BoardU.S. Nuclear Regulatory ConmissionWashington, D. C. 20555

+ Dr. John H. BuckAtomic Safety and Licensing Appeal BoardU.S. Nuclear Regulatory CommissionWashington, D. C. 20555

+ Dr. W. Reed JohnsonAtomic Safety and Licensing Appeal BoardU.S. Nuclear Regulatory CommissionWashington, D. C. 20555

* Mr. Thomas S. Moore, MemberAtomic Safety and Licensing Appeal HoardU.S. Nuclear Regulatory ComnissionWashington, D. C. 20555

* Elizabeth S. Bowers, Esq.Atomic Safety and Licensing BoardU.S. Nuclear Regulatory CommissionWashington, D. C. 20555

* Mr. Glenn 0. BrightAtomic Safety and Licensing BoardU.S. Nuclear Regulatory ComnissionWashington, D. C. 20555

Mrs. Elizabeth Apfelberg1415 CozaderoSan Luis Obispo, California 93401

Dr. William E. MartinSenior Ecologist-Battelle Memorial InstituteColumbus. Ohio, 43201

Philip A. Crane, Jr., Esq.Pacific Gas and Electric CompanyRoom 312777 Scale StreetSan Francisco, California 94106


Conference, Inc.4623 More Mesa DriveSanta Barbara, California 93105

Mrs. Raye Fleming1920 Mattie RoadShell Beach, California 93449


John R. Phillips, Esq.Simon Klevansky, Esq.Margaret Blodgett, Esq.Center for Law in the

Public Interest10203 Santa Monica DriveLos Angeles, California 90067

Arthur C. Gehr, Esq.Snell 5 Wilmer3100 Valley CenterPhoenix, Arizona 85073

Paul C. Valentine, Esq.321 Lytton AvenuePalo Alto, California 94302

Yale I. Jones, Esq.100 Van Ness Avenue19th FloorSan Francisco, California 94102

Janice E. Kerr, Esq.Lawrence g. Garcia, Esq.350 McAllister StreetSan Francisco, California 94102

Mr. James 0. SchuylerNuclear Projects EngineerPacific Gas and Electric Company77 Beale StreetSan Francisco, California 94106

Bruce Norton, Esq.3216 North 3rd StreetSuite 202Phoenix, Arizona 85102

David S. Fleischaker, Esq.Suite 7091735 Eye Street, N.W.Washiagton, D. C. 20006

Mrs. Sandra A. Silver1760 Alisal StreetSan Luis Obispo, California 93401

* Atomic Safety and LicensingAppeal Panel

U. S. Nuclear Regulatory CommissionWashington,'. C. 20555

* Atomic Safety and LicensingBoard Panel

U. S. Nuclear Regulatory ComnissionWashington, D. C. 20555

* Docketing and Service SectionOffice of the SecretaryU. S. Nuclear Regulatory CoamissionWashington, D. C. 20555


John MarrsManaging EditorSan Luis Obispo CountyTelegram-Tribune1321 Johnson AvenueP. 0. Box 112San Luis Obispo, California 93406

Andrew Baldwin', Esq.124'pear StreetSan Francisco, California 94105

Herbert H. BrownHill, Christopher 8 Phillips, P.C.1900 M Street, N.W.Washington, D. C. 20036

J. Anthony KleinLegal Affairs SecretaryGovernor's OfficeSta.e CapitolSacramento, Ca. 95814

Qow OavisCounsel for NRC Staff

OOCCETED

LlSNRC

FEB 27>980 0

Qff>N Of ~igocke5r< h. Service

Egnch))) /) Docket. Nos. 50-275 O.L.) 0- O.)))

In the Matter of:PACIFIC GAS 6 ELECTRIC

COMPANY(Diablo Canyon NuclearPower Plant, Units 1 6 2)



JOINT INTERVENORS'OTIONTO RESCHEDULE ORAL ARGUMENT

The Appeal Board has scheduled oral argument for April

2, 1980. We request the Board to reschedule the oral argu-

ment for two reasons. First, the Joint Intervenors'rinci-pal technical consultant, Mr. Richard Hubbard will not be

available to assist counsel in oral argument on that date.

Mr. Hubbard has a contractual obligation to speak at, the

University of New Hampshire on March 31, April 1, 2, and 3.

This contract was signed on July 12, 1979. Mr. Hubbard has

assisted counsel in all aspects of this case, including

discovery, answering interrogatories, preparation of expert

witnesses. He attended almost all sessions of the seismic

hearings to aid counsel in both direct and cross-examination

of expert, witnesses. He provided technical assistance in

writing both the exceptions to the Atomic Safety and Licens-

ing Board's partial Initial Decision and the JointIntervenors'roposed

Findings Of Fact and Conclusions Of Law. Joint

Intervenors anticipated that he would attend oral argument

to assist counsel in responding to Board questions on tech-

nical matters as well as NRC Staff and Applicant arguments.

There is no one who can adequately replace Mr. Hubbard.

Joint Intervenors rarely have the resources to obtain

the full-time assistance of a qualified expert like Mr.

Hubbard. We request the hearings to be rescheduled so that

the Joint Intervenors will not be penalized by his absence.

In addition, April 2 is the day after Passover, a

Jewish Holiday. Scheduling hearings will require partici-.

pants who would otherwise spend April l with their 'families

to spend- it in travel instead.

No party is harmed by a .short postponement of the oral

argument. The TMI-related issues have yet to be resolved.

The Licensing Board has yet to rule on other issues—

quality assurance, unresolved generic safety problems — from

which an appeal is likely to be taken. A hearing must be

held on the security plan. A short postponement of the oral

argument will not result in delaying issuance of the O.L.

This request has been discussed with attorneys from

both the Applicant and the Staff. Neither have an objection,

provided it can be rescheduled "quickly".

For the reasons set forth above, the Joint Zntervenors

respectfully request the Appeal Board to reschedule the oralargument, now set for April 2.


+ ) gv/ I I+v

David S. Fleischaker, Esq.1735 Eye Street, N.W.Suite 709Washington, D.C. 20006

(202) 638-6070

John R. Phillips, Esq.CENTER FOR LAW INTHE PUBLIC INTEREST10203 Santa Monica BoulevardFifth FloorLos Angeles, California,. 90067(213) 879-5588


CONFERENCE, ZNC.SAN LUIS OBISPO MOTHERS FOR PEACEECOLOGY ACTION CLUBSANDRA A. SILVERGORDON SILVERJOHN J. FORSTERELIZABETH APFELBERG

FEBRUARY 26, 1980

DOCKETEDUSNRC

OiFEB271983 w

gOffice of the S~~ j-

Oocfietiog 5 ~~'ic-'r

hach

/


Qg ~~ a

Docket Nos. 50-275 O.L.50-323 O.L.

)In the Matter of: )

)PACIFIC GAS 6 ELECTRIC )

COMPANY )(Diablo Canyon Nuclear )Power Plant, Units 1 6 2) )

)


I hereby certify that on this 26th day of February,

1980, I have served copies of the foregoing JOINTINTERVENORS'OTION

TO RESCHEDULE ORAL ARGUMENT, mailing them through the

U.S. Mails, first-class, postage prepaid, and by hand delivery

to those parties designated by an asterisk.

Elizabeth S. Bowers, Esq.ChairmanAtomic Safety 6 Licensing



Mr. Glenn O. BrightAtomic Safety 6 Licensing



Docket & Service SectionOffice of the SecretaryU.S. Nuclear Regulatory


Dr. William E. MartinBattelle Memorial InstituteColumbus, Ohio 43201

James R. Tourtellotte, Esq.. L. Dow Davis, Esq.

Mare R. Staenberg, Esq.Edward G. Ketchen, Esq.Office of the Executive Legal

Director — BETH 042U;S. Nuclear Regulatory


Mrs. Elizabeth Apfelbergc/o Nancy Culver182 Luneta DriveSan Luis Obispo, CA 93401

Mr. Frederick EisslerScenic .Shoreline Preservation

Conference, Inc.4623 More Mesa DriveSanta Barbara, CA 93105



John Phillips, Esq.Center For Law In The

Public Interest10203 Santa Monica BoulevardFifth FloorLos Angeles, CA 90067

Bruce Norton, Esq.3216 N.,Third StreetSuite 202Phoenix, Arizona 85012

Mr. Yale I. Jones, Esq.100 Van Ness Avenue19th FloorSan Francisco, CA 94102



Janice E. Kerr, Esq.Lawrence Q. Garcia, Esq.J. Calvin Simpson, Esq.California Public Utilities

Commission5246 State Building350 McAllister StreetSan Francisco, CA 94102

Mr. Richard S. Salzman,Chairman

Dr. John H. BuckDr. W. Reed JohnsonAtomic Safety 6 Licensing


Commission4350 East West Highway ~

Bethesda, Maryland 20014

Malcolm H. Furbush, Esq.Vice President andGeneral Counsel

Philip A. Crane, Esq.Pacific Gas 6 Electric Company31st Floor77 Beale Street, Room 3127San Francisco, CA 94106

Arthur C. Gehr, Esq.Snell & Wilmer3100 Valley CenterPhoenix, Arizona 85073


MHB Technical Associates1723 Hamilton AvenueSuite KSan Jose, CA. 95125



the GovernorState Capitol BuildingSacramento, California 95814

Herbert H. Brown, Esq.Hill, Christopher & Phillips1900 M Street, N.W.Washington, D.C. '0036

4uu, Lu~ (~David S. Flea,schaker, Esq.

UNITED STATES OF AMERICANUCLEAR REGULATORY COMMXSSION gg

ATOMIC SAFETY AND LICENSXNG APPEAL BOARD

Richard S. Sal'@man, ChairmanDr. John H. BuckDr. W. Reed Johnson

C'4

f1~

~g+G

g )980>

gpss>< g%C~

Xn the Matter ofI

PACXFIC GAS & ELECTRIC COMPANY

(Diablo Canyon Nuclear PowerPlant, Units 1 6 2)

1

)))) Docket Nos. 50-275 OL) 50-323 OL)))

ORDER CALZNDA'RING 'ORAT'RGUMENT

February 25, 1980

J

1. The Board will hear oral argument onintervenors'xceptions

related to earthquake issues at 9:30 a.m., Wednesday,

April 2, 1980, in the Old Count Courthouse, Room 302', Department

Number 3, Palm and Osos Streets, San Luis Obispo, California93401. Because of the difficulty in arranging for suitable

4/i4-. ~,.

facilities, this argument date is firm.I

It is general Commission policy to hear oral argument.on appeal at its headquarters in the Washington, D. C.area. 10 C.F.R. Part 2, Appendix A, SIX(e)..'n thiscase, however, members of the Board"must.."See in San

Luis'bispofor other purposes the following-,day in any event.For this reason, and because of the facilities~.generouslyextended for our use by the San Luj.y Obispo Board, ofCounty Supervisors and the Judges of the County Court',"-"---—we have been able to accommodate requests to hear-'argu-" ——ment in California.

2. Each side will be allowed two hours for 'argument.

Intervenors will be heard first; they may yield part of theirtime to counsel for the Governor of California and reserve a

portion for rebuttal. The applicant and the staff shall then

be heard in that order, dividing their time equally unless

they agree otherwise.

3. Each party shall mail to the Secretary of this Board

no later. than March l5th the name, address, and telephone number

of counsel who will argue in its behalf.

It is so ORDERED.

POR THE APPEAL BOARD

Barbara A. TompkinsSecretary to theAppeal Board

0UNIT D STA " S 0=

NUCL=AR REGULATORYPDKRICACO"'|ISSION

ATOMIC SA TY AND LIC"NSING APP~>'OARD

Richard S. Salzman, ChairmanDr. N. Reed JohnsonThomas S. Moore

In the I%atter of


tDiablo Canyon Nuclear Power PlantUnits 1 and 2)

))) ~

) Docket Nos. 5) 5 -323 OL)))

NOTICE OF CHANGF OF DATE OF PREHEARING CONFERENCE

February 28, 1980

For the reasons explained in the accompanying memorandum

and order, the in camera prehearing conference on security

plan matters previously. schedu'led for April 3, 1980 is changea

to -wednesday, .April 2, 1980 at 'the same location, viz.j 9:30 A,:M.

a". the Ola Count .'Courthouse, Room 302,. Department No. 3, Palm

and Osos Streets, San Luis Obis o, California.

It is so. ORDERED.

FOR TH" APP" AL BOARD

C. Je BishopSecre ry io theAppeal Board

~ P


ATOMIC SAFETY''AND LTCENSING BOARD

Elizabeth S. Bowers, ChairmanGlenn 0. Bright, Memberh'illiam E. Martin, Member

@gppo, >qG

So~ v'2,

'Q

In. the Matter of- PACIFIC GAS AND ELECTRIC COMPANY

(Diablo Canyon Nuclear Power PlantUnits 1 and. 2) ll

)) Docket Nos. 50-275 (OL)) : 50-323 (OL)))

MEMORANDUM

On February 6, 1980, the Atomic Safety and Licensing

Appeal Board requested this Licensing Board to file a list of

the documents or other material this "Board considered wh'en

making its security plan finding."The transcript of the in c'amera hearing, which contains

'I

the prepared testimony of the witnesses, is the only "document"n

considered by the Board. The Board also 'visually inspected.

various features of the. security system during'he si'te visit.I

FOR THE ATOMIC SAFETY-"AND'ICENSINGBOARD ~ .

Dated at Bethesda, Mary1andthis 11th day of February, 1980.

E iza et . S: Bowers, C airman


ATOMIC SAFETY AND LICENSING APPEAL BOARD

Richard S. Salzman, ChairmanDr. W. Reed JohnsonThomas S. Moore

gggg)i'

ppg y )BBC>

QKA><.g, ~ca) @g QglB58

gscE~~Z~~~„

In the Matter ofPACIFIC GAS 6 ELECTRIC COMPANY

(Diablo Canyon Nuclear PowerPlant, Units 1 6 2)

) Ol

))) Docket Nos. 50-275 OL) 50-323 OL)))

MEMORANDUM

February .6, 1980

The Licensing Board issued its partial initial decision

in this operating license proceeding on September 27, 1979.

LBP-79-26, 10 NRC . With respect to the security plan for

the Diablo Canyon facility, the Board found that the "plan

complies with all applicable NRC regulations." 10 NRCat'slip

opinion at p. 94). However, because of its sensitive

nature, all evidence regarding the security plan was received

by the Board in an in .camera hearing on February 12, 1979, and

the Board discussed neither the plan nor the evidence in itspublished decision.

In our consideration of an appeal in this case, we have

been unable to determine precisely the documents or other

material which the Board relied upon in making the security

plan finding. Therefore, the Board is requested to file a

list of all documents or other material that the Board con-I

sidered when making its security plan finding. The Board

should identify each document or other record material. with

all appropriate identifying descriptions (such as dates, re-

vision numbers, amendment numbers) but avoid any discussion

of the content of the documents or materials because of the

sensitive nature of the security plan and evidence. The

Board is requested to respond by Monday, February ll, 1980,

or as soon thereafter as possible.

FOR THE APPEAL BOARD

C. Je BishopSecre ry to the

Appeal Board

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2415 Leona AvenueSan Luis Obispo, CA 93401

January 25, 1980

To Everyone Concerned:'I

Enclosed is a copy of some suggestions that were made to alocal NRC staff hearing on the subject of Diablo Canyon and itsemergency plan. I feel that now is the time to take some actionand establish all the effects of low level radiation on .the,plant and animal life in the vicinity of a nuclear reactor.Significant research is being done in the Diablo Canyon areaon the effects of warm water on marine life. That impartialstudy, like the one I am proposing, must'egin before the r'eactorgoes into. operation in order to establ ish base-line conditions.

I would urge your immediate action and authorization of sucha study so that an unbiased and rational scientific view maysettle some of the controversial effects of nuclear reactors.I am asking this from a concerned point of view of those thatdo not know and would like to find some scientific. evidenceon which to base some action. Your personal response wouldbe much appreciated.

ZWZ.Bert E. Forbes

CC: Greg Brand, Telegram TribuneChairman of Nuclear Regulations CommitteeSenator Alan CranstonSenator S.I. HayakawaCongressman Leon PanettaAssembly Woman Carol HallettF.W. Mielke Jr , Chairman of the Board of PGGE

Donald Kennady, District Manager of PGSE

NRC EMERGENCY

'mergency

Typically - Sudden OccurrenceImpacting many peopleUnexpected"Dire Straits"

Dire StraitsCan end up here by a "slow" emergency if no planning is done to monitorevents. We the people, of San Luis Obispo County, may end up in direstraits through slowly accumulating low level radiation! What is neededis a plan, implemented now and carried on as long as Diablo exists.

The Plan

What:

~ When:

Where:—

How:

Who:

Why

A permanent, on-going, scientific, monitoring of the radiation levelsin the county wi th regular, publ ic

reports.'ow,

before Diablo is licensed and then forever after.All over San Luis Obispo County, not just at the reactor site.The locations should be chosen with consideration of the prevailipgwinds, population centers, food-crop/agricultural areas, etc.l. Establish base radiation levels at/in all chosen sites now.

2. Take continuous ground and high altitude air radiation counts.

3. Take food crop, cow's milk and mother's milk, samples and analyzethem for occurrence of known radioactive elements/compounds thatare associated with "normal operation" of and "unscheduled„emmissions"from a nuclear reactor.

4. Select a statistically valid 'sample of the population and dowhole-body counts now and at regular intervals.

5. Monitor the cancer-related disease and deaths in the county.This project should be operated iby an independent agent that is answerableonly to the public of San Luis Obispo county. Perhaps it could bea contract with Cal Poly - substantial research is involved'heproject should be adequately funded by PGFE as part of the Emergencypreparedness plan.If Diablo is as safe as claimed, then this plan will prove it. Ifproblems 'occur, the public will be insure'd of finding out about them-before it is too late. Regular reports (graphs, comparisons to oth'erreactor sites, etc.) easily understood by the layman should be publishedin the Telegram-Tribune .and in PGGE's bulletin that is mailed withour electric bills.

ACTION ITEMS

1. Require such a study to be done.

2. Set up a panel to let the contract.3» Establish PGFE's fiinding.4.

5.

Get going before Diablo is licensed in order to provide a normalbase line.Do not license Diablo until this study*has the base line readings.

Bert E. Forbes, 2415 Leona Avenue, San Luis Obispo, CA 93401 805-544-5689)

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NUCLEAR REGULATORY COI~iMX[Docket Nos. 50-275OL 0-3230 ]

7590-01

PACXPXC GAS AND ELECTRIC COMPANY(DXABLO CANYON NUCLEAR POWER PLY'T, UNXTS 1 6 2)

Reconsti.'tution of Atomic Safety and LicensingAppeal Board

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Notice is hereby given that, in accordance with the '

"authority in 10 CFR.52.787(a)", the Chairman of the AtomicI

Safety 'and L'icensing-Appeal Panel has reconstituted the,

Atomic Safety and Licensing Appeal Board for this operating

-license proceeding. to consist of the following members:*

„-Richard S. Salzman, ChairmanDr. W. Reed JohnsonThomas S. Moore

Dated: 'January-2, 1980.

'

Bar ara~A. Tomp xnsSec'retary to the

-Appeal Board


ATOMIC SAFETY AND LICENSING APPEAL PANEL

Alan S. Rosenthal, Chairman

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In the Matter of

PACIFIC GAS 6 ELECTRIC COMPANY

{Diablo Canyon Nuclear PowerPlant, Units 1 & 2)

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} Docket Nos. 50-275 OL) 2 OL))))

MEMORANDUM

January 4, 1980

l. On September 27, 1979, the Licensing Board rendered

a partial initial decision in this operating license proceeding

involving Units 1 and 2 of the Diablo Canyon Nuclear Power Plant„~/located in San.Luis Obispo County, California. Among other

issues considered in. that decision (in Parts III and IV respec-

tively) were (1) whether the facility is capable of withstanding

the maximum credible earthquake which might occui on the Hosgri

fault at. its nearest point to the Diablo, Canyon site; and (2)

the adequacy of the applicant's security plan.

H

/ LBP-79-26, 10 NRC

Two separate and independent appeals were taken from the

decision One of them was (1) filed on behalf of the intervenor

San Luis Obispo Mothers for Peace. by lawyers located in the San

Francisco Bay area; and (2) addressed exclusively to aspects of~ the Board's disposition in Part IV of the security plan issue.

The other was (1) fil'ed on behalf of the Joint Intervenors (a

group of ind5.viduals and organizations which includes the

San Luis Obispo Mothers for Peace) by lawyers located inWashi'ngton, D.C., and Los Angeles, California; and (2) addressed

excl'usi:vely to the Board's disposition in Part III of the seismic2/

issue.

The two appeals are on different. briefing schedules and are

to be heard at different times and at, different places. The

security plan appeal is now fully briefed and'is scheduled fororal argument in San Francisco on January 23, 1980. The seismic

appeal, however, is still in the briefing process. Once allbriefs have been received, it will b'e scheduled. for argument inBethesda, Maryland (in recognition of the fact that the principallawyer for the Joint Xntervenors on that appeal is .in this area).

2 / This bifurcation of'ssues was not adopted solely for appealpurposes. The issues were similarly handled separately andby d'ifferent counsel at trial.

2. The security plan issue has been before appeal boards

in'his proceeding on several prior occasions. See ALAB-410,

5 NRC 1398 ( 1977) g ALAB 504 g 8 NRC 406 ( 1978) g ALAB 514 g 8 NRC

697 (1978). The last two of these decisions were rendered by

a Board. comprised of Mr. Salzman (as Chairman), Dr. Johnson

and myself.

On January 2, 1980, I reconstituted the Appeal Board:for

the proceeding to'ubstitute Thomas S. Moore for myself.

Mr. Moore joined the Appeal Panel on that date as a lawyer

member. The substitu'tion was effected in ozder to provide a

more even'distribution of our overall caseload among the

yarious Panel members.

As a consequence of this action, the security plan appeal

will be heard on January 23 by Mr. Salzman, Dr. Johnson and

Mr. Moore. Because the questions presented by that appeal are

essentially legal in character, it is appropriate that they be

considered and decided by a Board on which two lawyers sit.

3. In sharp contrast, the seismic appeal presents questions4

which are largely, if not entirely, of a highly technical nature.

Thus, it seems .clearly desirable 'to have them considered and

decided, if at all possible, by a Board on which two scientistssit. See 10 CFR 2.787(a).

1

Nhere there is but a single appeal from a licensing board

decision, the mere fact that both legal and technical issues

are raised by that appeal would not justify assigning differentlyconstituted appeal boards to it -- one to consider the legalissues and the other to consider the technical issues. I

~ ~

perceive no compelling cau'se, however, why the two independent

appeals here involved -- being prosecuted by different lawyers

and moving forward on different briefing and argument tracks--need necessarily be considered by the same three members of the

Appeal'Panel. To the contrary, as I see it, in the present

circumstances the Section 2.787(a) declaration that an appeal

board is to be composed of individuals "possessing qualificationsdeemed appropriate to the issues to be decided" can be accommo-

dated by calling upon a second scientist to sit'on the seismic

appeal in the stead of one of the lawyer members of the Board

which will hear the security plan appeal.

4. In .accordance with the foregoing, I am hereby

designating Dr. Buck to serve on the Board which will consider

and decide the seismic appeal. As thus reconstituted,, that

Board will be comprised of Mr. Salzman (the Chairman),

Dr. Buck and Dr. Johnson. A formal notice of this recon-

stitution will be published in .the Federal Receister.

FOR THE APPEAL PANEL CHAIRMAN

Barbara A. TompkinsSecretary to the

Appeal Panel

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/7 8o 7590-01

NUCLEAR REGULATORY COi~IM~IS IONk *. -» 5

PACIFIC GAS & ELECTRIC COMPANY.(DIABLO CANYON NUCLEAR POWER PLANT, UNITS 1 6 2)

Reconstitution of Atomic Safety and LicensingAppeal Board

Notice is hereby given that, in accordance with the

authority conferred by 10 C.F.R. 52.787(a) and for the

reasons stated in his January 4, 1980 memorandum, the

Chairman of the Atomic Safety and Licensing Appeal Panel

has reconstituted the Atomic Safety and Licensing Appeal

Board which will consider and decide the. appeal taken by the

Joint Intervenors from Part 1II of the Licensing Board's

September 27, 1979 partial initial decision in this operating

license proceeding. As reconstituted, the Appeal Board willconsist of the following members:

Richard S. Salzman, ChairmanDr. John H. BuckDr. W. Reed Johnson

The Appeal Board which will consider and decide the appeal

taken by the intervenor San Quis Obispo Mothers for Peace

from certain aspects of Part IV of the September 27

will remain as reconstituted on January 2, 1980 and

decision

thus

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will consist, of the following members:

Richard S. Salzman, ChairmanDr. W. Reed JohnsonThomas S. Moore

Dated: January 4, l980

Bar ara A. Tomp xnss'ecretaryto the

Appeal Board