ML20087G754

Forwards Complaint 84-4615 Filed by Suffolk County for Declaratory Judgment Concerning Implementation of Offsite Emergency Plan.Related Correspondence

ML20087G754
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/15/1984
From:	Lanpher L KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	Kline J, Laurenson J, Shon F Atomic Safety and Licensing Board Panel
References
OL-3, NUDOCS 8403200128
Download: ML20087G754 (14)

Text

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March 15, 1984 ' " ' * " " " ' " " " " " ^ " ' ' * * *

• 202/452-7011 James A. Laurenson, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon Administrative Judges -

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Long Island Lighting Company; Shoreham Nuclear Power Station, Unit 1; Docket No. 50-322-OL-3 Gentlemen:

At various times during this proceeding, the Board has indicated its interest in whether any party intended to seek New York State Court resolution of the issues relating to LILCO's authority to implement its offsite emergency plan. Suffolk County has recently filed an action in New York State Court in Riverhead for a declaratory judgment concerning this matter. County of Suffolk v. Long Island Lighting Company, Index No. 84-4615. A copy of the County's complaint is attached.

Sincerely yours, WW Lawrence Coe Lanpher LCL/dk Enclosure cc: Service List ..

s 8403200128 840315 gDRADOCK 05000322 PDR Dso3

l SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK

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COUNTY OF SUFFOLK, )

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Plaintiff, )

) Complaint

v. ) Index No. 8Y'Yb/d

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LONG ISLAND LIGHTING COMPANY, )

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Defendant. )

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Plaintiff, by its attorneys Martin B. Ashare, Suffolk County Attorney, and Kirkpatrick, Lockhart, Hill, Christopher &

Phillips, for its complaint against the defendant, alleges:

1. This is an action for a declaratory judgment filed pursuant to CPLR S3001. An actual controversy of.a justiciable nature exists between the plaintiff and the defendant involving defendant's usurpation of the police power of Suffolk County and the State of New York in implementing a plan for responding to a nuclear accident pr radiological emergency.at the Shoreham Nuclear Power Station, which controversy may be determined by a judgment of this Court. Plaintiff asks this Court to declare that defendant's implementation of its plan is unlawful and illegal under the Constitution and laws of the State of New York.

2. Plaintiff COUNTY OF SUFFOLK is a municipal entity ex-t isting under and by virtue of the laws of the State of New York, having governmental jurisdiction over an area known as the County of Suffolk, consisting of approximately 920 square miles, with a population of approximately 1.3 million residents, and having its principal office to conduct business 4

in Hauppauge, New York.

3. Defendant LONG ISLAND LIGHTING COMPANY (LILCO) is a gas and electric corporation organized and operating under-the laws of the State of New York, engaged as.a public utility in the business of providing gas and electric services in the Counties of Suffolk and Nassau, and in'a portion of the. borough of Queens, with its principal place of business located in Mineola, New York.

4. LILCO has nearly completed construction of the Shoreham Nuclear Power Station (Shoreham), an 820 megawatt-nuclear-powered electric generating facility located in the County of Suffolk on-the north shore of Long. Island.

5. Before a utility is allowed to operate a nuclear power plant,-it must obtain an operating license from the.Nu-clear-Regulatory Commission.(NRC).- LILCO is presently seeking an operating license for Shoreham from.the NRC.

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6. The NRC may not issue an' operating license unless'it finds reasonable assurance that adequate measures can and will i

be taken to protect the public in the event of a nuclear I

accident or radiological emergency at the nuclear power plant.

' In the event of an accident or emergency posing an offsite radiological hazard or threat to public health and safety, pro-1 g

tective measures will normally include evacuation and/or shel-tering.of persons within the plume exposure pathway. emergency planning zone (EPZ) surrounding the nuclear power plant. Thia EPZ for Shoreham, as defined by LILCO, is an. area approximately 1

ten miles in radius from the Shoreham nuclear plant. The land portion of this ten-mile EPZ' falls ent'irely within Suffolk County, with the remainder located to the north of the facility in Long Island Sound. Protective measures also include actions necessary to prevent radiological contaminationlor other harm resulting from ingestion of contaminated food, water or

products of contaminated land, crops or animals located within.

the food ingestion pathway EPZ surrounding the nuclear plant.

I This EPZ for Shoreham is an area approximately fifty miles in-radius from Shoreham. ,

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7. In order to permit the NRC to-find that adequate offsite emergency. preparedness' exists for a nuclearLpower plant, the NRC requires an applicant for an operating license 1

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to submit to the NRC a_ radiological emergency response plan (RERP) which sets forth the measures that will be taken to protect the health and safety _of persons within the plume expo-

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sure pathway and food ingestion pathway EPZs in the event of a nuclear accident or radiological emergency at the plant. j

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8. Upon information and belief, all offsite RERPs which have been submitted to the NRC involving nuclear power plants other than Shoreham have been RERPs which have been sanctioned,

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and would be implemented, by the governments of the states and/or localities within the EPZs surrounding the nuclear power i plants.

9. In the exercise of its police power under the i Constitution and icws of the State of_New York, the Suffolk County Legislature adopted Resolution No. 262-1982 in March

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1982. That Resolution resolved to undertake -tc develop, at the County's own expense, an RERP that would provide the best pos-sible protection for residents and transients in Suffolk County in the event of a nuclear accident at Shoreham. Resolution No.

262-1982 further provided that no offsite RERP could'be~sub-mitted to the NRC by or on. behalf of'Suffolk County.unless such RERP had been approved-by the Suffolk County' Legislature. A subsequent resolution, Resolution No. 456-1982, provided that

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the County Legislature's review of a' draft of the plan to be developed would include at least two public hearings in Suffolk County.

10. In April 1992, the Government of Suffolk County proceeded to assemble a team of nationally-recognized experts to develop the RERP for Suffolk County that had been mandated by Resolution No. 262-1982. The work of the experts took ap-proximately eight months to complete and resulted in a draft County RERP and supporting analysis of approximately 775 pages.

In December 1982, that draft'RERP was presented to the Suffolk County Legislature for its review, as required by Resolution No. 262-1982. .

11. Pursuant to Resolution No. 456-1982, eight days of public hearings on the draft County RERP were conducted by the Suffolk County Legislature during. January 1983. In the course of these hearings, the County Legislature received testimony from numerous expert witnesses put forth by the County and LILCo, as well as testimony from hundreds of members of the public and concerned c,itizens groups which both favored and opposed the operation of Shoreham. In addition, the County Legislature travelled to Harrisburg, Pennsylvania in February 1983, to hear testimony from local public officials and i

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residents concerning the nuclear accident which had occurred in 1979 at the Three Mile Island Nuclear Plant and the emergency

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planning lessons learned in its aftermath.

12. When it had completed its review of the draft County RERP, the County Legislature determined in Resolution No.

111-1983 that it would not adopt or implement the draft RERP, or any other RERP for a Shoreham accident, because the local ,

conditions existing on Long Island (including density of popu-lation, land configuration and the limited roadway network) would preclude any RERP, if implemented , from providing adequate protection for-the health, welfare, and safety of

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Suffolk County residents and transients. Resolution No.

111-1983 recites that "the preparation and-implementation of any such plan would be misleading to the public by indicating to County residents that their health, welfare,-and safety are being protected when, in fact, such is not the case."

13. Upon information and belief, the Governor of the y

State of New York, after reviewing the.results of.a seven-month study of Shoreham prepared by a Commission which the Governor appointed for that purpose, has determined that no'offsite RERP' for Shoreham will be submitted to the NRC by oron behalf of-ths State of New York.

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14. In the fase of. determinations by Suffolk County and ,

I the State of New York >that n'o local or stateJRERP will be sub-mitted to the NRC by or on behalf of the County and State, i LILCO has developed and submitted to the NRC its own offsite l RERP, referred.to by LILCO as'the " Transition Plan." LILCO's h Transition Plan sets forth the means for implementing emergency measures in.the ten-mile and fifty-mile EPZs.

i l 15. The primary means for implementing the emergency I

measures called for in LILCO's Transition' Plan is the creation

, by LILCO of an' organization designated the " Local Emergency Re-sponse Organization *'(LERO). LILCO has established LERO, and

. it is staffed by approximately~2,000 persons, most of whom are LILCO employees entirely unde'r the control of LILCO. The senior management of LERO_ consists ontirely of LILCO employees I and, in one case, a paid"LlLCO consultant. The head of LERO is

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designated the " Director of Local: Response"," a position filled by one of LILCO's vice-presidents. No government official of

.Suffolk County or the State of New York is a member of LERO.

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16. Suffolk County.has determined thatlthe County will l not participate in ' implementing 'LILCO's! Transition ~ Plan. Upon information and - belief; the Governor of the State of New York-

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also has determir ed that the State of New York will not '

participate in implementing'LILCO's. Transition Plan. ,

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17. In the event of a nuclear accident at shoreham, i

LILCO's-Transition Plan provides that LILCO, through its alter ego LERO, and without consent or approval by, or participation f

of, Suffolk County or the State of New York, will arrogate to itself functions purporting to protect the health, welfare and

, safety of residents and transients within Suffolk County. The 1

offsite emergency response to the accident for a distance of fifty miles from that plant will, under LILCC's Transition Plan, be under the management, direction and control of LILCO.

Those public safety functions which are possessed inherently by  !

, local and state government officials for exercise through the police power will, according to LILCO's Transition Plan, be 4

possessed and exercised by LILCO employees. In the LILCO Tran-sition Plan, among other things LILCO employees, and not any a

local or state government official, are designated (a) to j decide what actions should be taken to protect the health, wel-

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fare, and safety of persons in the EPZs; (b) to deterr.ine whether and how more than one hundred thousand Suffolk County

residents and transients within the ten-mile EPZ, and several hundred thousand persons beyond that who will respond to the j i

i emergency, should be evacuated;'.(c) to advise Suffolk County l residents and transients, through announcer.ents on the Emer-i gency Broadcast System, press statements andl press conferences, i

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what specific actions they should take to protect their health, j

welfare and safetyr (d) to activate emergency sirens which LILCO has installed throughout the ten-mile EPZ to alert the public to the occurrence of a nuclear accident or radiological emergency; (e) to manage and direct the flow of traffic on I roads within Suffolk County through various means including blocking lanes, altering roads to one-way flow, erecting barri-

cades and installing road signs; (f) to control and direct the

- removal and displacement of more than one hundred thousand residents and transients from the ten-mile EPZ; and (g) to establish controls over drinking water,-milk, food, crops and

- livestock in the fifty-mile EPZ, an effort which could affect 4 millions of people.

18. LILCO has begun implementing-its Transition Plan. In I addition to creating LERO, it has assigned specific jobs in-its  !

LERO organization to specific LILCO employees at'the senior

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I management-level and throughout the other working levels of the organization. Classroom training sessions for these employees a

have been held and drills have been conducted. Moreover, LILCO has entered into letters of intentLor agreements with other-privat'e companies to provide, buses.and ambulances to'be-used to evacuate 1 persons pursuant to LILCO's orders.,. LILCO hasfalso entered.into letters:of intent or agreements with radio l

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stations for the broadcasting of emergency messages from LILCO to the public over the Emergency Broadcast System, i

19. LILCO has asserted that it has the necessary legal authority to implement its Transition Plan and "to effectively protect the safety and health of the public." LILCO Transition i

Plan, p. 1.4-1. LILCO further asserts:

[N]othing in New York State law prevents the utility from performing the necessary functions to protect the public. To the contrary, Article 2-B of New York State Ex-ecutive Law, S 20.1.e, makes it the policy of the State that State and local plans,

organization arrangements, and response ca-

pability "be the most effective that cur-rent circumstances and existing resources allow." Id.

20. Contrary to the foregoing LILCO assertions, LILCC's implementation of its Transition Plan is unlawful and illegal.

1 Under the Constitution and laws of the State of New York, the police power is inherent in and can be possessed and exercised only by the State of New York itself or by a political subdivi-sion of the State if there has been a proper delegation.of au-i thority from the State to such subdivision. New York State Constitution, Arts. II5, IX (McKinney); Municipal Home Rule Law, 510; Executitre Law, Art. 2-B (McKinney). The State of'New York has delegated its police powers within the territorial

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limits of Suffolk County only to the Government of Suffolk i

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. . i County and other governmental entities within the County. The State of New York has never delegated its police powers to LILCO.

21. An actual and justiciable controversy exists between the plaintiff and the defendant concerning the legality, under the Constitution and laws of the State of New York, of LILCO implementing its Transition Plan. A resolution.of this dispute is necessary because LILCO is representing that it has authori-ty under the laws of the State of New York to implement the Transition Plan -- an RERP which usurps the police power au-thority of the State of New York and Suffolk County -- and LILCO is implementing that Plan. LILCO's acts in implementing 3

such an RERP have violated, are violating and will violate the Constitution and laws of the State of New York.

22. The Chairman of the Atomic Safety and Licensing Board of the NRC, which is presently conducting hearings on the LILCO Transition Plan, has stated on the record his belief that the question of the lawfulness of the Transition Plan under the Constitution and laws pf the State of New York should be re-l solved by the courts of the State of New York.

23. Executive officials within the Federal Emergency Ma,n-agement Agency, which is reviewing the LILCO Transition Plan at

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the request of the NRC, have stated, in official correspondence to the NRC that it is essential that a determination be made as to whether LILCO has legal authority to assume management and control of the offsite emergency response to a nuclear accident at Shoreham under the laws of the State of New York.

24. The plaintiff has no adequate remedy at law.

WHEREFORE, plaintiff prays that, pursuant to CPLR 53001, the Court enter a declaratory judgment that LILCO's imple-mentation of its Transition Plan is unlawful and illegal under the Constitution and laws of the State of New York.

Yours & e'tc.

Martin B. Ashare Suffolk County Department of Law Dennison. Building veterans Memorial Highway Hauppauge, New York 11788 (516) 360-4049 Herbert H. Brown Lawrence C. Lanpher

, Gilbert C. Miller Kirkpatrick, Lockhart, Hill,

, Christopher.& Phillips 1900 M Street, N.W.

Washington, D.C. 20036

.(202) 452-7000 Attorneys for Plaintiff Suffolk County Dated: March 8, 1984

VERIFICATION MARTIN BRADLEY ASHARE being duly sworn, deposes and says: That he is the Suffolk County Attorney for the County of Suffolk, a municipal corporation, in the within action that he has read the foregoing complaint and knows the contents thereof, and that the same is true to deponent's own knowledge, except those matters therein stated to be alleged on information and belief, and as to those he believes them to be true.

This verification is made by deponent because Suffolk County is a municipal corporation and deponent is an officer thereof.

The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as follows:

Deponent has been intimately involved with all aspects of the controversy relating to emergency response plann3.19

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l MARTIN BRADLEY ASHARE Sworn to before me this oth

. O day of March 1984.

/ bMARON A. McKENNA M J'f d Notary Putdic. State of Neur York n 4essies NEtary Public ,

evennegin sanok omgy,,9 c