ML20235F086

Affidavit of Ej Walsh Supporting Util Request That Lloyd Harbor Study Group,Inc Motion Seeking Disqualification of Aec,Aslab & ASLB Members Be Denied.Incomplete Statement by Ej Walsh Requesting Motion Be Denied Encl

ML20235F086
Person / Time
Site:	05000000, Shoreham
Issue date:	08/07/1970
From:	Walsh E LONG ISLAND LIGHTING CO.
To:
Shared Package
ML20235B311	List: IA-87-111, Submits Rept on Plant,As Discussed in ACRS 150th Meeting on 721012-14.Listed Items Can Be Resolved During Const & Facility Can Be Constructed W/Reasonable Assurance for Operation W/O Undue Risk to Public Safety IR 05000254/1972009 IR 05000358/1972003 IR 05000358/1973001 IR 05000358/1973002 IR 05000358/1973003 IR 05000358/1973005 IR 05000358/1973006 IR 05000358/1973007 IR 05000358/1974001 IR 05000358/1974002 IR 05000358/1974003 IR 05000358/1975004 ML20235B308 ML20235B364 ML20235B401 ML20235B405 ML20235B424 ML20235B456 ML20235B461 ML20235B465 ML20235B477 ML20235B488 ML20235B507 ML20235B552 ML20235B582 ML20235B585 ML20235B588 ML20235B605 ML20235B618 ML20235B623 ML20235B649 ML20235B656 ML20235B662 ML20235B670 ML20235B679 ML20235B683 ML20235B687 ML20235B702 ML20235B708 ML20235B713 ML20235B714 ML20235B718 ML20235B720 ML20235B730 ML20235B734 ML20235B748 ML20235B754 ML20235B762 ML20235B764 ... further results
References
FOIA-87-111 NUDOCS 8709280406
Download: ML20235F086 (5)

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I UNITED M 6r3 OF-fi4Er'.ICA

. ATOMIC : "!TS.GY. 00.'!.1.TSSION

_.x 1r ' ho 'O t ter of Occket No. 50-322 i

LONC fSt.Imu LIGHTINTi COMPANY AFFIDAVIT q

(bhcrehua. 24uc term rotter Station, Unit 40 1)

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.c STATE OF PM' YORK) ss.:

COUN7i 0F N c.SSAU )

j EDWARD J. WAT2H, JR., being duly s'.orn, deposes and says:

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1. 'I w. An attorney 't law admitted to practice'in the.; tate of How York, am fr.miliar with the facts and circm-1 L

atan.: n of i;his procecding and am the attorney in charge thereof

-for the,,pplict.nt, Lor.g Island Lighting Ccmpany.

I have read the noving pe.pers of the Intervenor., The.Lloyd Harbor Study i

Group, Inc., sooking the disqualification of the Atomic Energy Commission, the inditidual Commissioners of the Commission, the Ato:nic Sal'ety and Licensing Appeal Board, individual members of said Board the Atomic Safety and Licensing Board, the individual menbcre of that Board and the Ad.visory Committee on Reactor Safes.nrds, and submit this Affidavit in opposition.

2 2.

An analysis of the moving papers establishes that 1

the Maic of the precent motion rests upcn the Intervenor's claim thet the various individual members of the Cc. mission, Atomic o

Safer.y ond L:.<:eusirg Appeal lharti, the Atomic. Safety and Licensing i

8709280406 870921 PDR FOIA I'.

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It is clear therefore that thc strategy of The Lloyd Harbor Study Group, Inc. is to teke every possible action it can.to delay the Shorch2n application.

Such :onduct, in view i

of its President, William Carl's statement that the only purpose t

in intervening here is to prevent the construction of a plant in Lloyd Harbor,. not only seriously injures the consuncrs of electric power on Long Island by delaying the construction of an essential plant, but appears to constitute a misuse of the i

judicial process.

4 That the present motion is merely a continuation

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of this delaying strategy is also evidenced by the timing of the motion.

It is made more than six months after the Petition to Intervene was filed in which Intervenor set forth (Para.

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of the Petition to Interveie) that it was ma<ing the claims now set forth.

It is alco significant in this connection that the I

present motion to disqualify the members of the Atomic Safety and Licensing Appeal Board and the Atomic Safety and Licensing Board is made more than six months after these Scards were appointed.

It is even more significant that the motion is made after three pre-hearing conferences have been held, innumerable motions made and decided, and several appeals taken and decided.

I recognize that the foreCoing recitation of facts is not d$reetly responsible to the instaat notion but have included l

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such recitation in some detail hereir. because I believe it places the motion in its proper perspective.

The dela/ cf this pro-I' ceeding has already sericusly Jeopardized the timely completion

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Lthe' Atomic Energy Commisalon.

Mercover. it is relevant in

, considering this claim'or a dual cap'01 y tha the Atomic Fr.cr> y

. Commission, ir.' carrying out the reupor.tibility delegated to'it u

by Congress, has maintained separate c:affs to process applica-tions for licenses to construct atomic electric senerating i

stations so-as to clearly delineate its promotional functions from its regulatory functions.

In light of the history ~of the Congressional intentier.

and the action of the Atomic Energy Cersission in carrying out its responsibilities,;the Intervenor's :ontentions are specious.

As-a matter of feet, it seems clear that the Atsmic Energy Ccm-mission has no power to disqualify itse_f for carrying out the express mandate of the Congress of the *.~nited States.

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The claim that the various Scard nenbers have been

. drawn from the nuclear industry or from scientific laboratories funded by the Atomic Energy Commission Or are professors teaching nuclenr subjects in universities is clearly not a sufficient ground for disqualif.i:ation.

In the absence of any facts showir.g i

that such Board members will not be impartial or objective in carrying out their functions as a member of the Board in the Shoreham proceeding or that such Board members have a personal bias, there is no valid legal basis for this motion.

The Memorandum of Law submitted herewith establishes that it is not enough to show that a Board member "may have a propensity to favor nuclear power.

There are no facts set out in the moving papers other than speculative conclusions and 2ssumptions that the Board members cannot be objective.

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7 The attached Memorandum cf Law 11so shows that i

the Congress intended that two members of the Atomic Safety and Licend ng Board, notwithstanding the provisions of Secticns 7(a) and 8(a) of the Administrative Procedure Act (42 U.S.C.A.

Section 2241) should be technical members.

Since almost every expert in the a. tonic energy field would fall within the ambit of the Intervenor's claim of having a personal interest in the l

field of atomic energy development, there wculd be no technical experts available for the re5ulatory boards.

This would clearly frustrate the Congressional intention since 1 must be presumed that Congress was well aware of the fact that most technical i

experts would have relationships with the Atcaic Energy Com-mission during the course of their career or would be interested in the development of nuclear power.

There is also no valid basis for the claim that the members of the Boards should be disqualified because they are not representative of the environmental life sciences as required by the National Environmental Policy Act.

There is no language in this Act, which would serve as a basis for this claim.

Furthermore, there is no evidence in the moving papers which would support any claim that the members of the Boards are not interested in the environment or are not qualified to pass upon issues concerning the environment.

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, In vieu of all of the foregoing, it is respectfully requested that the inctant motion be denied.

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ESAE T ncE,gn.

Sworn to before rae this i

7th day of August, 1970.

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i4 UNITED STATES'0!tAMIRICI ATGMIC ENERGY:CCM ISSION

_______y, In the Matter of LONG. IS* AND LIGHTING COMP;;d*

poege.; No. 50-322 (Shereham Nucicar Porter Statior '.

Uni: No. 1)

....x MEMORANDUM OF LCNG ISLAND LIGHTING COMPAN*i IN OPPOSITION TO THE MOTION TO DIS;UALIrl THE ATOMIC EUERGI'CC:GISSION, THE ATCXIC. SAFETY AND LICENSING APPIAL FCARD and THE ATOMIC SAFETY AND LICEI::3ING ECAP.D l

STATEMENT 4

Intervenor, The Lloyd Harbor Study. Group, Inc., by Notice of-Motion dated July 28, 1970 has requested that the Atomic Energy Commission disqualify itself and dismiss the instant proceedings; and also that some of the. individual mem-bers of the Atomic Safety and Licensing Appeal' Board and the Atomic Safety and Licensing Board should be disqualified from sittir.g in this proceeding.

o The thrust of the Intervenor's motion appears to be that the Commission should be disqualified because it has been given the responsibility for the development of peaceful uses of atomic power and also the responsibility for regulating such peaceful use.

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i POINT II MERE SPECULATION AND SUSPICIONS.

CONCERNING TiiE UNDF.RLYItiG.PHILO-SOPliY OF INDIV.IDUAL IEMBERS OF THE BOARDS'IS NOT A SUFFICIENT-BASIS FOR THEIR DISQUALIFICATION -

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It.is.well settled that Intervenor must present evidence to show that the individual members of' the Boards are not men of I

conscience and intellectual discipline ca. cable of judging the ShorehamLproceedings fairly on the basis of the merits.

It is not' sufficient to assume that a member of an agency enters a proceedin5 withf edvance; views of an economic matter (Skelly-Oil Company v. Mderal Power Commission, 375 F.2d 6,18,1967) or han nn underlying philosophy in. approaching a :pecific case (Uni,ted States v. Morgan, 313 U.S. 409, t21 1941; Federal Trade i

Commission v. Cement Ins,titute, 333 U.S. 633, 701).

i In-the Skelly 011 Company case, it was urged that two of the Federal Power Commissioners had prejudged the issue of whether substantial competition existed among gas producers, j

The court at 375 F.2d 18 rejected this argument and said:

No claim is made that either commissioner prejudged the ultimate issue of a just and i

reasonable rate.

In our opinion no basis for disqualification arises.from the fact l.

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or assumption that a member of an adminis-l U

trative agency enters a proceeding with-advance views on important economic matters in issue.

Nothing in the' record disturbs J

the assumption that the two commissioners are " men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances."

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There.is nothing.in the papers'which-asserts anything-

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-morc than a suspicion that theLindividual technical members of-1 the Atomic Safety and Licensing Appeal Board.and Atomic Safety and: Licensing Board may have a " philosophic and1 professional a

bias in favor of atomic. power projects." LAs-shown above, this j

is not a sufficient. basis for disqualification and the motion ~

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should be denied.

lIt should be noted that 42 U.S.C.A. Section 22hl'ex-

[l pressly provides that Atomic Safety and Licensing Boards shall a

be L eomposed of two technical. members. irrespective of any contrary, d

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- provisiona in the Administrative ?rocedure Act.'

It must roe: pre-

-sumed that Congress was aware of.the fact that all technical l

. members of this Board would be interested.in the development of

. atomic power and would be employed-at some time by the Atomic Energy Conaission, a' nuclear related' industry or have some con-P nection with either such agency or such industry.

Nevertheless i

the Congress realizing the complex technical questions which would e

be' raised before such Boards mandated that two technical. members l

be appointed.

It also seems clear that practically all potential ll members of the Atomic Safety and Licensing Boards would fall within the ambit of Intervenor's complaint.

Thus, it would be f

near impbssib1'e.to obtain technical members and the Congressional intent.would be wholly frustrated and there would be no one to

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conduct the public hearings required by law.

This would be an I

absurd result and Congress has not previded for such a contingency.

Federal Trade Commission v. Cement Institute 333 U.S. 603 ac p. 701.

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POINT ' III THE NATIONAL ENVIRONMENTAL POLICY i

ACT DOES NOT REQUIRE THE DIS-I QUALIFICATION OF THE ATOMIC SAFETY s

AND LICENSING APPEAL BOARD OR THE

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ATOMIC SAFETY AND LICENSING BOARD i

The Intervenor claims in this motion that the National Environmental Policy Act mandates the inclusion of Board members i

who are representative of the environmental life sciences'and' that the failure to include such representatives requires dis-qualification of the Boards appointed herein.

There is nothing in the Environmental Policy Act to warrant the Intervenor's conclusion.

The regulations promulgated by the Commission fully J

comply with the mandate of the National Environmental Policy

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l Act.

The claim of the Intervenor is therefore without legal l

substance.

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CCNCLUSION 1

THE MOTION SHOULD BE DENIED l

Respectfully submitted, i

DAVID K. KADANE Attorney for Applicant

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Long Island Lighting Company 1

250 Old Country Road Mineola, New York 11501 p

By ff[ai IMb Edward J. Walsh', Jr.

Attorne7' August 7,.1970 l

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