ML20092P636

Amicus Curiae Brief of AIF in Connection W/Suffolk County & State of Ny Request & Motion for Disqualification of Chairman Palladino.Certificate of Svc Encl

ML20092P636
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Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/06/1984
From:	Cowan B, Hodge L ATOMIC INDUSTRIAL FORUM
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ML20092P630	List: ML20092P629 ML20092P636
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OL, NUDOCS 8407090195
Download: ML20092P636 (20)

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UNITED STATES OF AMERICA ' ' - - > F^W NUCLEAR REGULATORY COMMISSION Before the Commission -

In the Matter of  :

LONG ISLAND LIGHTING COMPANY  : Docke t No . 50-3 22-OL (Shoreham Nuclear Power Station,  :

Unit 1)  :

AMICUS CURIAE BRIEF OF ATOMIC INDUSTRIAL FORUM, INC .

Introduction The Atomic Industrial Forum, Inc. (" Amicus") files this brief as amicus curiae in connection with the request and motion for disqualification of Chairr.ian Palladino filed by Suffolk County and the State of New York in the Shoreham operating license proceeding.l Amicus addresses this brief primarily to the policy issues associated with the recusal effort in this case. Those policy issues include the need I

Suf folk County and State of New York Request for Recusal and, Alternatively, Motion for Disqualification of Chairman Palladino, dated June 5, 1984.

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for expeditious conduct of Nuclear Regulatory Commission

( "Comm ission") licensing proceedings and the role of the Chairman of the Commission in carrying out the policies of .

the Commission and the law which require that Commission adj udications be conducted withoi . unnecessary delays.

Amicus also addresses why recusal is inappropriate in this case under the standards to be applied in considering a recusal motion.

In its request and motion Suffolk County and j the State of New York urge that the Chairman recuse himself l because of alleged activities of the Chairman in urging expeditious scheduling of the Shoreham licensing proceeding.2

Amicus believes that the allegations and their disposition

! relate to the entire fabric of Commission licensing proceed-i j ing s . Because of the far-reaching consequences if it should be determined that the Chairman of the Commission may not carry out the policies of the Commission and may not initiate i

2 Although Suffolk County /New York State charge that the Chair-man prej udged the schedule on which LILCO would receive a l low power licensing decision and the need for an onsite emergency power source, the basis for these charges appears I

to stem from a claim that the Chairman proposed and imposed i various ideas regarding expediting the Shoreham hearing I

process. See supra, pp. 21-22.

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administrative actions designed to bring efficiency and expedition to the licensing process, Amicus is filing this brie f.3 ,

Interest of Amicus The Atomic Industrial Forum, Inc. is an associa-tion of over 500 domestic and overseas organizations inter-ested in the development of peaceful uses of nuclear energy.

Its members include electric utilities, manufacturers, architect-engineers, consulting firms, law firms, mining i

and milling canpanies, labor unions, financial. institutions, universities, and others who design, build, operate and service facilities for the production of nuclear fuel and the generation of nuclear power. Long Island Lighting i"

Company is a member of the . Foran. In addition, each utility l owning the plants identified in the Individual Statement of Nunzio J. Palladino, Chairman , U. S. Nuclear Regulatory Commission, Before the Subcommittee on Energy and the i Environment, Committee on Interior and Insular Affairs, U. S. House of Representatives, dated May 17, 1984, is a l

3 Amicus is simultaneously filing a " Motion for Leave to File a Brief Amicus Curiae." Because of the importance of the issue raised by the suffolk County /New York State filing in this case, Amicus urges the motion for leave to file this brie f be g ranted .

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member of the Forum. The members of the Forum have had

extensive experience in the law relating .to nuclear regula- l tion and practice. Its members, as well as all consumers of .

electricity, stand to be harmed in the event of unnecessary

delays in the licensing process.

Summary of Position l The issue to be addressed by the Chairman in connection with the request and motion for recusal and disqualification is whether the Chairman should recuse '

himself because of his initiatives in seeking to expedite the Shoreham hearing process. Underlying this issue is the question of the public interest that licensing proceedings i

be conducted in a timely manner, consistent with fairness i

for all parties. We believe the following are the essential i

points:

1. There is a substantial public interest, repeatedly recognized by the Commission, that its licensing proceedings be conducted in a timely manner. This public i

interest is reflected in the policies adopted by the Commis-sion concerning expedition of the licensing process.

2. The Congress has made it clear that it is concerned about the Commission's ability to reach timely

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decisions in pending licensing cases. In this connection the Congress has repeatedly urged that the Commission take appropriate steps to avoid such delays.

3. The Energy Reorganization Act of 1974 and Reorganization Plan No. 1 of 1980 delegate to the Chairman the responsibility to see to the faithful execution of the policies and decisions of the Commission.

4. Regardless of what standard the Chairman f

adopts for recusal, there is no appropriate call for recusal or disqualification where, as here, the chairman in further- ,

ance of the policies of the Commission initiates actions to

make certain that the licensing activities of a hearing j board are conducted in a timely fashion.

With respect to the timeliness of and merits of the recusal request, Amicus believes that the request is untimely and in any event should be denied. The conclusion F

i of prej udgment argued by Suffolk County / State of New York is

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without basis. A search for methods to expedite the comple-i i tion of the hearing process and a direction or suggestion j that prompt dispatch is needed , even if made to a licensing l

l board, cannot be equated with a direction to reach a favor-able decision on the merits. Thus recusal is not appropriate l

in this case.

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Discussion Amicus believes that the issues involved in the present recusal request are of fundamental importance to the ability of the Commission to assure that its functions, including its adj udicatory proceedings, are conducted in an expeditious manner. Thus , the challenge to the Chairman in this case is a challenge to the underlying policy of the Commission which recognizes that fairness to all parties requires that adj udications be conducted without unnecessary d el ays . Accordingly, it seems appropriate to Amicus to review briefly Commission policy in this area and the obligation and responsibility of the Chairman in carrying out such policy.

1. Policy on Expeditious Licensing The Commission has recognized repeatedly that there is a substantial public interest 4 which demands that 4

In part this public interest is based on the fact that a crucial contributor to the cost of nuclear facilities is the lengthy licensing process. One of the purposes of the Atomic Energy Act of 1954, as amended, was to develop, use and control nuclear technology so as to make the maximum contribution to the general welfare. See Atomic Energy Act of 1954, as amended , Section 1. Essential to this develop-ment is that the cost of building nuclear facilities not be needlessly increased.

its licensing proceedings be conducted in a timely manner.

The Statement of General Policy and Procedure (10 CFR Part 2, Appendix A) notes: -

"The Statement [of General Policy and Proced ure] reflects the Commission's intent that such proceedings be con-ducted expeditiously and its concern that its procedures maintain sufficient flexibility to accommodate that objec-tive. This position is founded upon the recognition that fairness to all the parties in such cases and the obligation of administrative agencies to conduct their functions with efficiency and economy, require that Commission adj udi-cations be conducted without unnecessary

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delays. These factors take on added importance in nuclear power reactor licensing proceedings where the growing national need for electric power and

. the companion need for protecting the quality of the environment call for decision making which is both sound and timely. The Commission expects that its responsibilities under the Atomic Energy Act of 1954, the National Environmental Policy Act of 1969, .and other applicable statutes, as set out in the statement which follows, will be carried out in a manner consistent with this position in the overall public interest."

This Statement is echoed in various other Commission pro-nouncements. Thus , on May - 20, 1981, the Commission issued

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a Statement of Policy on Conduct of Licensing Proceedings, CLI-81 -8 , 13 NRC 452, to provide guidance to its licensing j boards "on the use. of ' tools intended to reduce the time l for completing licensing proceedings while still ensuring that hearings are fair and produce full records." As noted L

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by the Commission in its Policy Statement, if proceedings are not timely concluded, "the cost of such delay could reach billions of dollars." The Policy Statement went on to .

i say that:

"The Commission will seek to avoid or reduce such delays whenever measures are available that do not compromise the i

Commission's fundamental commitment to a fair and . thorough hearing process."5 The Statement of Policy on Conduct of Licensing Proceedings recently was reaffirmed by the Commission in its 1984 policy i

and planning guidance document "U.S. Nuclear Regulatory Commission Policy and Planning Guidance - 1984," NUREG-0885, i

5 The Commission's policy on expediting the decision-making process and avoiding undue delays is of long-standing.

Thus, in the Statement of Considerations which accompanied i

the restructured Rules of Practice in 1972, the Commission said:

"The Commission is concerned not only with its obligation to the segment of the public participating in -licensing proceedings but also with a responsi-bility to the general public--a responsibility to arrive at sound .

decisions, whether favorable or unfavor-

, able to any particular party, in a 1

timely fashion. The Commission ex-pressly recognizes the positive neces-sity for expediting the decisionmaking process and avoiding undue delays."-

Although efficiency and expedition of the hearing l process are not the only interests at stake, .they are essential if the Commission is to accomplish .its role in conducting a fair hearing process.

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L Issue 3 dated January 1984. In that document the Commis- l sion set forth its current policy on timely licensing of facilities as follows: .

"The NRC intends that its regulatory processes be efficient and cost effec-tive. Actions - should continue to be taken to eliminate unwarranted delay in reaching decisions consistent with not j

compromising safety. The Commission reaffirms its statement of policy on the conduct of licensing proceeding 1of May 1981, which urged licensing boards to take actions needed to assure the efficient conduct of hearings."

1 As planning guidance, the Commission stated that, inter alia, "public hearings should be completed on a schedule l that assures the licensing process will not be a critical f

path item which could unnecessarily delay reactor startup."

The Commission's emphasis on the importance of the timely conduct of licensing proceedings to the protec-tion of the public interest also can be seen in licensing decisions of the Commission. Thus , in Consolidated Edison Co. of New York, Inc. (Indian Point Station, Units 1, 2 and 3 ) , CLI-77-2, 5 NRC 13, 15 (1977), the Commission stated:

l "We have previously recognized the j 'public interest. in the timely and orderly conduct of our proceedings.'

l Nuclear Fuel Services, Inc. (West Valley l Reprocessing Plant) , CLI-75-4, 1 NRC

273, 275 (1975 ) ."

Beyond this acknowledgment that timeliness is necessary to the protection of the public interest, the t

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Commission also has recognized that the timely conduct of the licensing proceeding is required to preserve the rights

, of the parties to a fair hearing. In the case of Nuclear l Fuel Services, Inc. (West Valley Reprocessing Plant) ,

CLI 4 , 1 NRC 273 (1975 ), the Commission stated at page l

275:

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i "obviously, an important policy consideration underlying the rule

[regarding timely interventions) is the public interest in the timely and orderly conduct of our proceedings.

l As the Commission has recognized,

' fairness to all parties . . . and the

! obligation of administrative agencies to conduct their functions with efficiency l

and economy, require that Commission adj udications be conducted without unnecessary delays .' 10 CFR Part 2, Append ix A. "

i There have b'een numerous other Commission expres-sions of its concern with the efficiency of its licensing j process. For example, in its July 8, 1981, denial of a request for reconsideration of a petition for rulemaking i

! which would have established specific time limits on licens-ing board actions, the Commission stated its belief that-l

" unnecessary or inappropriate delays should be avoided whenever possible." The Commission further noted that it had " continued to pursue its oft stated policy of eliminat-ing unnecessary or inappropriate delays in the licensing process." (Docke t No .- PRM-2-6 ) .

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l it Another expression of the same theme - that unnecessary delays and burdens on the licensing ' process

,. 1 should be eliminated - is contained in a letter from then Chairman Hendrie of 'the Commission to President Carter dated 1 July 21, 1978, where the Chairman stated (43 Fed. Reg. I 34358): ,

"The NRC is fully cognizant of the importance of eliminating unnecessary burdens upon those being regulated , and of reducing as far as possible the economic, cost of government regulation."

Similarly, in the prepared testimony submitted on March 22,' 1983' by Chairman Palladino at the hearings on the Commission FY 1984 /85 budget before the Subcommittee on Energy Conservation and Power of the House Committee on Energy and Commerce, the Chairman stated (Serial No. 98-56, 4

P. 9): _ ,

"Wt do intend that the regulatory process 1

involved in licensing these new plants be as efficient and effective as possible.

We want to eliminate all unwarranted delay in~ rea'ching regulatory decisions , abd . we

, want our licensing boards to r'.c M . sound and fair decisions while at the o sme time taking firm hold of the h' A- ).sqr :.o assure they are conducted efficitr.13 The ' Commission's oft-stated concern with respect -

to avoiding delay; in the hearing process has been amplified inrecentcyearsby}theCongress.

As recently as April 22,

,1 1984, the ' Chairman olf the ~ Subcommitte'e . 'on Energy and Water r

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m Development of the House Interior and Insular Affairs Committee addressed a letter to the Chairman which began:

"As you are aware, the Subcommittee .

is concerned about the Commission's ability to reach timely decisions on I licensing cases currently pending before I the Commission for nuclear powerplants."

l With respect to this matter, the Congressman pointed out that "it is the consumers and ratepayers of electricity that i will ultimately pay for unnecessary delays." A similar expression of concern over licensing delays was voiced by the Chairman of the Subcommittee on Nuclear Regulation of

the Senate Committee on Environment and Public Works in his opening statement on March 25, 1981 at the Senate hearings on Nuclear Powerplant Licensing Delays and the Impact of the sholly v. NRC Decision

"The growing problem of licensing delays for nuclear powerplants is a matter of great concern to me."

This subject of delay and the Congress urging action to elim'inate unnecessaryf delays has been a recurring theme during recent hearings before the Congress on Commis-1 sion appropriations. - In 1981, ' the House Appropriations Committee directed the -Commission to provide monthly reports on the status of licensing proceedings in an. effort to spur the Commission into taking action on unnecessary delays. In 1982, the Congress in - the Commission authorization for i

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l fiscal years 1982 and 1983 directed the Commission to adopt administrative measures to minimize delay. In the House Appropriations Committee report on the Energy and Water Development Appropriations Bill, 1983, the Commission, although relieved of its responsibility to provide monthly reports, was directed to report quarterly c'n any delays 4

projected in the issuance of operating licenses beyond the ,

dates estimated by applicants for construction completion.

2. The Shoreham Proceeding and Responsibilities of the Chairman The Shoreham proceeding is exemplary of the delay situation faced by the Commission and recognized by the Congress. In the Shoreham case , the operating license application was initially filed in 1975, approximately nine years ago. Public hearings on the application have been conducted for the better part of two years, and a motion for a license to operate at low power has been pending for one year. On March 9, 1984, the Executive Director for Opera-tions of the Commission notified the Commission that the estimated time gap between the time the Shoreham facility would be physically complete and the decision on its operat-ing license was 9 months. Such a situatien clearly is antithetical to the Commission policy of expeditious licens-ing.

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f-The Chairman of the Commission had every right to be concerned about the shoreham situation. Moreover, the Chairman had the duty to inform himself of the details of -

the situation and to determine what could be done adminis-tratively to avoid any f urther unwarranted licensing delays.

The duties of the Chairman in this regard arise from the Energy Reorganization Act of 1974, 42 U.S.C. S 5811 '

et seg. and Reorganization Plan No. 1 of 1980, 45 Fed. Reg. 40561 (1980). The Energy Reorganization Act of 1974,

! which established the Nuclear Regulatory Commission, pro-vides that:

"The Chairman . . . shall be the offi-cial spokesman of the Commission in its relations with the Congress, Government i

j agencies, persons, or the public, and, on behalf of the Commission, shall see to the faithful execution of the policies and decisions of the Commission, and shall report thereon to the Commission from time to time or as the Commission may direct." (Emphasis added) .

, Reorganization Plan No. 1 of 1980 provides that the Chairman is the principal executive officer of the Commission.

Where the policy of the Commission to provide for timely licensing proceedings is clear, it is encum-bent on the Chairman to carry out that policy. One method i

l of carrying out such policy was to take the very action which the Chairman took in the current proceeding.6 There can be no question that the Atomic Safety and Licensing Boards are not autonomous entities devoid of appropriate supervision. The three-member boards, authorized by Section 191 of the Atomic Energy Act of 1954, are "to conduct such hearings as the Commission may direct and make such . . . decisions as the Commission may authorize."

As noted by the Atomic Safety and Licensing Appeal Board, in fulfilling its obligations during licensing proceedings, the licensing boards are not totally insulated. The Appeal Board stated "the Commission's policy on the conduct of licensing proceedings . . . makes manifest that autonomy is not an end in itself. . . ." In the Matter of Offshore Power Systems (Floating Nuclear Power Plants) , ALAB 489, 8 NRC 194, 202 (1978). The Appeal Board went on to note:

"The [ policy] statement also sets forth a controlling theme, reiterated else-where in Commission regulations and adj udicatory issuances - that decision-making within the Commission should be

' both sound and timely. ' "

0 Indeed , Section 201 (e) of the Energy Reorganization Act of 1974 provides for removal by the President of any member of the Commission for, inter alia, inefficiency.

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1 In the seabrook proceeding where the Commission l

had expressed its " obvious and appropriate concern" over 1 j

that proceeding's image as "a serious failure of governmental

process to resolve central issues in a timely and coordinated way" (5 NRC 503 at 517), the Commission remanded the proceed-ing to the Appeal Board, thereby eliminating entirely the

Licensing Board from the disposition of the issue. P ublic Service Company of New Hampshire (seabrook Station, Units 1 & 2 ) , CLI 78-14, 7 NRC 952, 956 (1978).

What is at stake in the current proceeding does, indeed, as expressed by the Chairman, go "to the heart of the ability of the Chairman of the NRC to perform his

functions in the manner which the NRC Reorganization Plan mandated." If the Chairman is unable to undertake the initiatives demonstrated in the present case, then his ability to function as the chief administrative officer of

, the Commission is emasculated and the viability of the Commission itself to function as an entity concerned with the prompt dispatch of its business is vitiated.7 1

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' Indeed, the Suffolk County Executive apparently recognized the ' supervisory role of the Commissioners when he wrote them requesting their personal intervention in this licensing proceeding in an effort to enlist their aid for the position l of the County that the plant should not be permitted to operate . See Statement of ' Peter F. Cohalan, Suffolk County

[ Footnote continued on next page) 16-y -- + i--- 7 -- e- % , --

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3. The Recusal Request and Motion Should Be Denied The applicable law to be considered with respect to the recusal motion is appropriately set forth in "LILCO's -

Response to Suf folk County And State Of New York Request For Recusal And , Alternatively, Motion For Disqualification Of Chairman Palladino," dated June 18, 1984 (the "LILCO Response"). Thus it is clear that any decision on recusal rests solely with the person who is the subject of the motion.

Moreover, it is clear that a motion for recusal must be made in a timely fashion - with reasonable dili-gence - and that a motion will be considered untimely if the moving party delays unduly in filing after it has knowledge of the facts providing the basis for the claimed bias. See, e.g., Marcus v. Director, Office of Worker's

. Compensation Programs, 548 F.2d 1044, 1051 (D.C. Cir. 1976);

Davis v. Cities Service Oil Co., 420 F. 2d 1278, 1282 (10th Cir. 1970); Public Service Company of New Hampshire (Seabrook

[ Footnote continued from previous page]

(N. Y. ) Executive at Hearings before the Subcommittee on Energy Conservation and Power, Committee on Energy and Commerce, House of Representatives, on NRC Authorization for FY 1984-85, Serial No. 98-56, pp. 172, 174.

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1 Station Units 1 and 2, ALAB-749, 18 NRC 1195, 1198 (1983).

The courts sometimes have stated that the motions must be filed at the first opportunity after discovery of the facts -

alleged to support the disqualification. See chafin v.

United States, 5 F.2d 592 (4th Cir. 1925), cert. denied, 269 U.S. 552 (1926); Smith v. Danyo, 585 F.2d 83 (3d Cir. 1978).

Amicus understands that the facts giving rise to the recusal request were known to Suffolk County / State of New York at least by April 11, 1984, almost two months prior to their request and motion of June 5, 1984. On April 23, 1984 the events which are now alleged to give rise to the disquali-fication were the subject of a complaint in federal court.

These facts appear to Amicus to demonstrate that there was delay by Suffolk County / State of New York in bringing the recusal motion, and that the delay was of sufficient length that the request and motion was untimely.

I It is clear that recusal or disqualification is unusual, there being a presumption of the decision-maker's honesty and integrity. The moving party has a substantial' burden to carry to rebut this presumption of impartiality.

See United States v. Prof ~ 3sional Air Traffic Controllers Organization, 527 F. Supp. 1344 (N. D. Ill, 1981 ); Samuel v.

University of Pittsburgh, 395 F. Supp. 1275, 1279 (W.D. Pa.

1975 ), vacated on other grounds, 538 F.2d 991 (3d Cir. 1976);

l I United States v. Civella, 416 F. Supp. 676 (W.D. Mo. 1975).

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l Although the legal authority is divided, the better and majority view supports the proposition that all of the facts and circumstances are to be considered in deciding on -

recusal rather than merely the charges of the party seeking such action. See, e.g., United States v. Civella, supra; Potashnick v. Port City Construction Co., 60 9 F. 2d 1101, 1111 (5th Cir. 1980); Hall v. Small Business Administration, 695 F.2d 175, 179 (5 th Cir. 1983 ); United States v. Sibla, 62 4 F. 2d 864, 867-68 (9 th Cir. 1980). In State of Idaho

v. Freeman, 507 F. Supp. 706, 721 (D. Idaho 1981 ), the Court in a well-reasoned opinion, stated as follows :

"If a j udge who is being asked to disqualify himself cannot make all relevant facts known, or rebut those facts that are false and which if left unrefuted would create a reasonable goestion of impartiality, the result would be an essentially pre-emptive proceeding where the judge would be

' the victim of the appearance of im-propriety . . . ' with no recourse to remove a possible taint on his. integ-rity. Furthermore, allowing a j udge the liberty to evaluate the truth , as well as the sufficiency of the alleged facts, is compatible with the Congressional attempt to control bad-faith litigants' manipulation of the disqualification proced ure . This is evident because section 144 has attending procedural requirements to prevent abuse of the disqualification process; section 455 on the other hand permits the j udge to edit

the inaccurate allegations which could be the basis for disqualification under an appearance of partiality standard."

See, 46 U. Chic. L. Rev., supra at 250." (Emphasis in original) .

Thus, when considering the motion for recusal in the present case, the Chairman may view this matter in its entire context and with all the knowledge which he has as to the actual facts, Moreover, in considering a motion for recusal, the moving parties must se t forth the facts and reasons forming the basis of the alleged bias, other than mere i conclusions, gossip or opinions that the bias exists. See Wolfson v. Palmieri, 396 F. 2d 121 (2d Cir. 1968); Samuel v.

University of Pittsburgh, supra; Griffith v. Edwards, 493 F.2d 4 95 (8 th Cir.) , cert. denied, 419 U. S. 861 (1974 );

United States v. Anderson, 433 F.2d 856 (8 th Cir. 1970).

The standard adopted by the Commission for deter-mining whether recusal is appropriate was summarized in Consumers Power Co. (Midland Plant Units 1 and 2, ALAB-101, 6AEC 60, 65 g1973 ), and thereafter quoted in Public Service Electric and Gas Co. (Hope Creek Generating Station, Unit 1)

No . 50-3 54 OL, ALAB-75 9 (Jan . 25, 1984 ) as follows:

, [A]n administrative trier of fact is l subject to disqualification if he has a direct, personal, substantial pecuniary interest in a result; if he has a

" personal bias" against a participant;

, if he has served in a prosecutive or investigative role with regard to the same facts as are an issue; if he has prej udged factual -- as distinguished from legal or policy -- issues; or if he has engaged in conduct which gives the appearance of personal bias or prej udg-ment of factual issues. .

On its face, the current motion does not allege any facts demonstrating bias in fact - a prejudgment on the merits of any issue in the shoreham licensing proceeding.

To* reach the conclusion of prejudgment, Suffolk Cour.ty/ State of New York requires a leap from a concern of the Chairman for expediting the hearing schedule to ensure that the hearing process is concluded in a timely manner to the proposition that the Chairman has concluded and is attempt-ing to influence others on the merits outcome of the hear-ing. According to the Suffolk County / State of New York request, the purpose of the Chairman in inquiring and acting on a procedural plan for timely conduct of the hearing was because of a concern that LILCO might go bankrupt before the low power license can be issued. From this, the county and state argued that since the only way of averting bankruptcy was to obtain a favorable decision on the merits of the low power license request , the Chairman was dictating such favorable decision. The logic of this position will not withstand analysis.

A direction or suggestion to a licensing board to conduct a hearing with pre ot dispatch, even if it had been made and expressed as being necessary in order to avert bankruptcy if no decision is reached, cannot be equated with a direction to the licensing board to reach a favorable decision with respect to issuance of the low power license.

Isauming that LILCO faced bankruptcy if a decision was not made in a timely fashion, it would have been a dereliction of the duties of the Chairman - and, indeed , of the entire Commission - if some action had not been taken to assure that a timely decision could be reached. Such a determina-tion, of course, would require that there be reaconable assurance of the public health and safety, but the nature of the decision is not foreordained by requiring it to be ,

timely made.

Amicus is concerned that acceding to the request and demand of Suffolk County / State of New York would turn Commission proceedings into a game. As noted by the Senate Judiciary Committee , in recommending what became the law with respect to disqualification of federal judges:

. ... In assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possi-bility that those who would question his impartiality are in fact seeking to i avoid the consequences of his expected l adverse decision. Disqualification for l lack of impartiality must have a reason-able basis. Nothing in this proposed

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legislation should be read to warrant the transformation of a litigant's fear that a j udge may decide a question against him into a ' reasonable fear' that the j udge will not be impartial. .

Litigants ought not to have to face a j udge where there is a reasonable quest 3sn of impartiality, but they are not entitled to j udges of their own chrice." (Emphasis in orignial) .

S. Rep. No .93-419, 93 rd Cong . , 1st Sess. 1973, p. 5. See also H.R, Rep. No. 93-1453, 93 rd Cong . 2 nd Se s s . , reprinted in U.S. Code Cong . and Ad . News 63 51, 6355.

Conclusion The policy of the Commission is to avoid or reduce delays in the licensing process, consistent with a fundamental commitment to a fair and through hearing. The Chairman is charged with the duty of carrying out such Commission policy. In the shoreham proceeding, it was proper for the Chairman to be concerned that the issues involved and the question of whether to grant a license be judged on the merits rather than be determined by default due to delay in reaching a decision. Thus, the actions of

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l the Chairman in this case in exercising his responsibilities were entirely appropriate , and the request and motion for recusal should be denied. .

Res tfully submitted ,

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dA 1. Hodge, Esq.

Ger cral Counsel Atomic Industrial Forum, Inc.

/ $ lAl2lM Batton Z. Colda(n , Esq.'

Chairman, AIF Lawyers Committee Of Counsel:

John R. Kenrick, Esq.

Eckert, Seamans, Cherin & fiellott 42nd Floor, 600 Grant Street Pittsburgh, Pennsylvania 15219 (412) 566-6000 Da ted : July 6, 1984 1

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UNITED STATES OF AMERICA .

4 NUCLEAR REGULATORY COMMISSION 4

Before the Commission -

4 In the Matter of  :

4  :

LONG ISLAND LIGHTING COMPANY

Docket No . 50-322-OL

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(Shoreham Nuclear Power Station,

. Unit 1)  :

CERTIFICATE OF SERVICE I hereby certify that copies of the " Amicus Curiae Brief of Atomic Industrial Forum,- Inc." in the above-cap-tioned matter have been served on the following by deposit in the United States mail this 6th day of July, 1984.

• Nunzio J. Pallad ino

• Alan S. Rosenthal

. Chairman Chairman j U.S. Nuclear Regulatory Atomic Safety and Licensing j Commission Appeal Board Washing ton, D.C. 20555 U.S. Nuclear Regulatory Commission

• Frederick M. Bernthal Washing ton, D.C. 20555 i Commissioner U.S. Nuclear Regulatory *Howard A. Wilber Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory

• James K. Asselstine Commission Commissioner Washington, D.C. 20555 U.S. Nuclear Regulatory Commission *

• Gary J. Edles Washing ton, D.C. 20555 Atomic Safety and Licensing Appeal Board

• Thomas M. Roberts U.S. Nuclear Regulatory Commissioner Commission U.S. Nuclear Regulatory Washing ton, D. C. 20555 Commission Wa sh ing to n , D. C. 20555 l

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• Judge Marshall E. Miller Mr. Martin Suubert Atomic Safety and Licensing c/o Congressman William Carney Board 113 Longworth House Office U.S. Nuclear Regulatory Building i Commission Washing ton, D.C. 20515 -

Washing ton, D.C. 20555 James Dougherty, Esq.

• Judge Glenn O. Bright 304 5 Porter Street, N.W.

I Atomic Safety and Licensing Washing ton, D.C. 20008 Board U.S. Nuclear Regulatory Jay Dunkleberger, Esq.

Commission New York State Energy Office Wa sh ing to n , D. C. 20555 Agency' Building 2 Empire State Plaza Judge Elizabeth B. Johnson Albany, New York 12223 Oak Ridge National Laboratory P. O. Box X, Building 3500 Edwin J. Re is , Es q.

Oak Ridge, Tennessee 37830 Office of the Executive Legal l' Director

• Eleanor L. Frucci, Esq. U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Wa shing ton , D. C. 20555

, U.S. Nuclear Regulatory I Commission Stephen B. Latham, Esq.

Washing ton, D.C. 20555 John F. Shea, Esq.

Twomey, Latham & Shea Honorable Peter Cohalan 33 West Second Street i Suffolk County Executive Riverhead , New York 11901 County Executive /

Legislative Building Martin- Bradley Ashare, Esq.

Veterans Memorial Highway Suffolk County Attorney j Hauppauge, New York 11788 H. Lee Dennison Building Veterans Memorial Highway Fabian G. Palomino, Esq. Ha uppa ug e , New York 11788 l Special Counsel to the Governor W. Taylor Reveley, III, Esq.

Executive Chamber, Room 229 Donald P. Irwin, Esq.

State Capitol Hunton & Williams Albany, New York 12224 707 East Main Street Post Of fice Box 153 5 l Alan R. Dynner; Esq. Richmond , Virginia 23212 Herbert H. Brown , Esq.

Lawrence Coe Lanpher, Esq. Docketing and . Service Branch Kirkpatrick, Lockhart, Hill, Office of the Secretary Christopher & Phillips U.S. Nuclear Regulatory 1900 M Street , N.W. , 8th F1.- Commission Washing ton, D.C. 20036 Washing ton, D.C. 20555

• Designates those hand delf rered

i l'

i Barton Z. Cotain. Esq.

Chairman, AIF Lawyers Committee i

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