ML20093K998

Reply to Suffolk County,State of Ny & NRC Staff Responses to 840806 Motion for Summary Disposition of Contentions 1-10.Certificate of Svc Encl.Related Correspondence

ML20093K998
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/15/1984
From:	Christman D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#484-541 OL-3, NUDOCS 8410180266
Download: ML20093K998 (143)

Text

{{#Wiki_filter:5% RElATED CCnRESPONDENCE .n. -.a LILCO, October 15, 1984 DOCKETED 03 N ~e a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '84 DCT 17 N0:12

• mt Before the Atomic Safety and Licensing Boa'rd. -.j'l'_

In the Matter of ) ) LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3 ) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding) Unit-1) ) l LILCO'S REPLY TO THE RESPONSES TO ITS MOTION FOR

SUMMARY

DISPOSITION ON CONTENTIONS 1-10 This brief responds to the answers of Intervenors Suffolk County and New York State and of the NRC Staff in response to LILCO's August 6 Motion for Summary Disposition of Contentions 1-10 (the Legal Authority Issues). These contentions are the ones that claim that certain functions that LILCO proposes to perform under the LILCO Transition Plan are prohibited by cer-tain state and local laws. The framework for resolving these ten issues has become quite complicated. In its motion LILCO advanced five separate legal' theories 1/ why it should win. In response, however, the 1/ They are: (1) preemption because the state has invaded a preempted field, (2) preemption because LILCO cannot comply with both state law and federal law, (3)' preemption because the state laws stand as an obstacle to the accomplishment of the (footnote continued) hpkkO O 00 g bS63

i s: u,, 2

Intervenors, and to a lesser extent' the NRC Staff, have intro-duced several' additional issues, including (i) generalized

" usurpation of police powers," (ii) the Tenth Amendment, (iii) the scopeLof a utility's powers under New York corporation ~1aw, and (iv)' ripeness. There is one central-fact,'however, that should not be ob-scured:by all the arguendos and legal hairsplitting. This is that New York and'Suffolk County, based on their belief that the plant cannot be operated safely, are attempting to use their state-law powers to prohibit the operation of a completed nuclear power plant which meets all federal safety require-ments, including those for-emergency planning. This fact can-i not be denied. And it compels the conclusion that what New

York and Suffolk County are attempting to do here is to effect a reverse preemption that is beyond their powers in the federal system.

Since LILCO filed its Motion, two significant events have occurred that the Board should note well. First, the Appeal Board'has reaffirmed in the Diablo Canyon case that states may not impose their emergency planning preferences on NRC (footnote continued) full purposes and objectives of Congress, (4) mootness, because the assumption that~no government would participate in a real emergency is demonstrably false, and (S) immateriality, because even if the activities specified in Contentions 1-4 and 9-10 were prohibited, the Plan would still meet NRC regulations. w _- - -

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. _ licensees. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-781, 20 NRC slip op. at 20-21:(September 6, 1984). Second, on October 10 and 11 both houses of the U.S. Congress once again passed legislation al-loving " utility plans" to substitute for state and local gov-ernment plans. These events, both of which support LILCO's consistent arguments, are discussed further below. I. Contentions 1-10 Must be Resolved by this Licensing Board

LILCO proposed last December that this Board decide all the issues involved.in Contentions 1-10.

Tr. 708 (Irwin). At that-time, buffolk County agreed that this Board could decide i all the issues raised by Contentions 1-10, Tr. 714 (Lanpher). However, Suffolk County later reversed position and questioned whether this Board had jurisdiction to decide state law issues raised in Contentions 1-10, Tr. 13,829 (Lanpher). The Board, leaving for another day the potential federal preemption ques-tions involved,2/ expressed its preference that a state court 2/ Intervenors have misrepresented in a number of material respects both the background and the current status of the state court proceedings on " legal authority". First, the-County attempts to ascribe to this Board a di-rective that the federal preemption issue should be decided by the state court. See Intervenors' Opposition at 13-15. LILCO does not so construe prior comments by the Board. See Tr. 3654. Certainly this Board knows better than the parties whether the Board intended that a state court should address (footnote continued) . _.. _ _ _ ~. _ - - _ _ -

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ideside purelyfstate law l issues in'the?first: instance, but did s -(footnote continued) -both1 th'e? threshold' issue 'of _ legal l authority under ~ state law and ~ !the preemption' defenses arising under federal law. Therefore, ~itiseems~somewhat! absurd for-the> parties to be arguing to this c

Board 7about the intent of. prior directives by this Board.

-Be-ucause the-Intervenors have suggested that'LILCO's response to. Ltheistate1 court litigation-have bordered.on bad' faith, a re- 'sponsevis:in order; /LILCO believes, and so argued to the: federal court in its Petitions to Remove.the state court: actions, that the state law-l ' legal' authority issues cannot b'e addressedLwithout construing srelevantifederal statutes'andl regulations.. The converse, how-N. ever; is not true. ; Clearly one may conceed, arquendo, that the Ltasksiin. questions are prohibited by. state law and thereby pos-

p ture;the; preemption issue for immediate resolution.

. Irr this -

form,Jthe? preemption issue may be addressed and resolved

~*' ..without reference to, or construction of, any state law. This i 'is. exactly.the posture of the matter now before the Board. l;, - Second,-"Intervenors suggest that LILCO's ' efforts to remove theistate court actions were " patently _ frivolous" and inter-se 'E l posed solelyifor purposes of " delay." (Intervenor's Brief at I jp.216). Nothing could be further.from'the: truth. LILCO~has (# il'abored' mightily to structure this litigation'so that all,of

theimany facets of the;1egal. authority' puzzle could be put be-fore"the same. tribunal.

As of~the time:the state court actions wereTfiled'on March'8, 1984, the preemption issue was already-pending before Judge <Altimari in a civil action initiated by-the Citizens-For An Orderly Energy Policy. '(Civil' Action No. .83-4966,1 United States District Court for the Eastern District i fof New. York). Suffolk County was and is a defendant'in that ~ ' action and knew very woll'that.the preemption issue, or at

1 east fa'cets of-it, had already been briefed to Judge Altimari.

I' Judge Altimari'noted~during-the.May=25, 1984 hearing on the Re- ' mand Petitions that-inLhis " judgment it's illogical to transfer (i.e.,. remand the cases) to either Albany or Suffolk county. I understand you've stipulated to Suffolk County,' whatever that. lmay.be. But I'm going to give it further consideration. It makes more sense to-me to have the cases stay here in this court..I-will:make that very clear to you.- But I don't think that's the state-of the-law." (Hearing Transcript,-p. 33, em-phasis:added; see Attachment 1.) a ~ Although. Judge Altimari granted the Remand Motions, no-where in his 27 page MEMORANDUM AND ORDER of June 15, 1984 did .he suggest:..that LILCO's arguments were frivolous. In fact, I ^ (footnote continued) oo ( sx ,m.c.,,-.m.,.,~~m-,..,--..m.,._,---,w r.m.%r._,.,y,m.,,,.,,.r,,,,,r~gw,w,,,--%.-,-_,,,,,,w.y--m,,,y.,

'ti E .; e : +> :not_ruleLout making its.own decisions on matters of state law an -(footnote' continued)_ -confirming his-observations.at the hearing, Judge Altimari m noted.that LILCO's reasoning "while not necessarily illogical is,_nevertheless,'.not in accordance with'the current state of the law,-_. ."C(ORDER at p. 23,-attached as Attachment 2.) The Intervenors'? allegations ~with~ respect'to intentional delay'are equally specious when.one examines the record. Ap-proximately.three months elapsed between the-filing of'the -

state: court: actions on March 8, 1984 ~ and the' June 15, 1984 aORDER by Judge Altimari remanding the-cases to state court.

LAfterEthe. state 11aw cases were filed on March 8, 1984, the pro-ceedings went' forward expeditiously..The Suffolk County and New York State cases were consolidated by agreement of parties (see.New' York State Motions of' March-29, 1984). Both' cases were removed to' federal court (see Removal Petitions of April 6,'1984). -Motions-for Romand were filed approximately two and one half weeks;1ater on April-23, 1984. Briefs were filed by 'the parties on-the remand issue on May-2, May 7, and May 21, i 1984.. -Oral argument was presented to Judge Altimari on May 25, E 1984. On June-15, 1984, approximately three months after the date on which!the cases-were initially filed in state court, ~ Judge Altimari handed down his-27_page MEMORANDUM AND ORDER Jgranting.Intervenors' motions to remand. It can hardly be said ~ on this record'that LILCO. engaged in " intentional delay and ob-structionist tactics." . :Thus,'over~four months have elapsed since' Judge Altimari's order, throughout which'periodLcounsel for LILCO has cooperated . fully with'Intervenors' counsel'in structuring the issues to be -;f heard bysthe state court. That court has determined that it will resolve the state law issues presented by LILCO's Motion -to-Dismiss. This motion raises _ solely state law issues. The

f Intervenors urged the state. court to' address the preemption

-issue even though~the issue had not been raised in that court. The state-judge declined and that court will reach the preemp-Ltion issue only if,the.LILCO Motion to Dismiss on state law grounds is denied.- It should be noted that the state judge is proceeding with tha. case'in~ exactly the manner urged by the'Intervenors when they were before Judge Altimari on their remand motion. On that occasion, counsel'for the Intervenors argued to Judge 'Altimarit. If a Court is to determine that LILCO does not have that power, then, and only a (footnote continued)

f :*0 li -inithe event'that such:a_ decision became necessary. _Nor did 7 jthe Board indicate that it even1 felt such'a_ decision was-neces- ~ l lsary.(:SeeTr._3675_(Laurenson). The NRC Staff now argues' that- -the'federalilaw' issues must'awaitithe state court's decision on Jatate law issues. :Thus, if the' Board does what the Staff rec - .ommends, LILCO'may be-thrust into a position where the facts ihave been" heard, the. plant is ready to operate,_and yet it can-not get'a' decision from this Board, because.the Board is-

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'e '(footnote. continued) ~ then, does the federal preemption issue be-come relevant.- uThat issue need never be reached, and indeed is never reached until r =oneLis-disposed of:the threshold State Law ~ -issue, to determine that LILCO does not 'have the power. '(Transcript:at p. 6, emphasis added). '_ Curiously,-however, after the cases were remanded to state o court, the Intervenors abruptly.' changed their tune. InLthe ~ state court,.before the preemption issue was ever' raised by the Lpleadings, Intervenors urged the court to dispense'with the formalities of pleading,.and to address-the preemption-issue ~ ; simultaneously withithe state law issues. In their Brief.In Opposition'in.the state' court, Intervenors stated: " Preemption is1an' element of this case that must be decided as a part of the decision on the merits." (Plaintiffs' Joint Brief In Oppo- .sition', p.l67). In/ summary, the preemption issue is not presently before the: state court. Only if the state court denies LILCO's Motion to Dismiss;on. state law grounds will the preemption issue be raised-in the state court. If those proceedings do evolve in this manner,'then-the state-court would have to decide whether .those' tasks which this Board mandates as being essential to the LILCO Transition Plan'are' tasks which state law may not inter- -dict because of federal preemption. + f

. awaiting a-suitably dispositive decision by a state court. That situation would obviously be wasteful and unnecessary. A similar need for action by this Board arises in connec-tion with the_ question of whether it is impossible to comply with both the state and federal' requirements at the same time.

This Board'must determine which functions contested in Conten-tions 1-10 are necessary to meet NRC regulations.

Only then can the " impossibility" aspect of the preemption issue be de-cided. A. LILCO is entitled to a decision Both the NRC Staff and Intervenors argue that the preemp-tion issue is not ripe for resolution. See NRC Staff Answer at i 6-15; SC/NYS Opposition at 13-22. Both reach this conclusion by artificially stripping this single' issue from the remainder of the emergency planning proceeding. Viewed against this more expansive background, the need for prompt resolution of Conten-tions 1-10 becomes apparent. Given the NRC Staff's and Inter-venors' arguments, this Board-must choose between two alterna-tives: 1) the Board can accept the argument that the preemption issue is not ripe, provided it also finds that resolution of Contentions 1-10 is not a prerequisite to ultimate ac-ceptance of the LILCO Transition Plan and hence to full power operation of the Shoreham plant, or 2) the Board can find that acceptance of the LILCO Transition Plan requires resolution of Contentions 1-10, and, contrary to the NRC

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e-Staff's and Intervenors' assertions, that the preemption issue is ripe for decision.

.To understand the construct of the ripeness debate, it is necessary.to review briefly the arguments of the NRC Staff and fIntervenors. The Staff-argues that a-decision on preemption issues would be_ premature;since there has been no ruling that ~New York law proscribes the activities contemplated by the >LILCO Transition Plan, see.NRC Staff Answer at 6. The Staff's argument is premised'in part on its interpretation of two lines 3 I. of : case -law: 1). cases holding that preemption issues should be addressed only if a clear conflict exists between state and federal law (see id. at 6-7), and i 2) cases holding that licensing boards should refrain from issuing " advisory" opinions (see.id. at 12-14), E and in part on its intuitive judgment that the statutes cited in Contentions 1-10 do not proscribe the activities presented in.the LILCO'. Transition Plan (see id. at 10-12). - Intervenors rely on this same line of reasoning (though they presumably'would assert that the statutes cited do bear on LILCO's implementation of emergency planning at Shoreham). In- .tervenors contend that without a New York State court ruling, resolution.of the preemption issue would be academic (SC/NYS Opposition at 21). In addition, they argue that Contentions 1-10 raise controlling questions of New York State law that New York State courts should decide (id. at 13). Since cases on m.,- 7. .._,__,,-.,....____,.m..

7, -e.

• ^these11ssues are now pending in New York State courts, Interve-nors contend _that:this Board should stay-its hand in deciding

-the preemption issue which may be raised as an affirmative de-fense in those proceedings (id. at.13, 19). Finally, Interve-nors assert that LILCO's alleged delaying those state court proceedings'should act to bar LILCO from raising the preemption issues before this Board (see id. at 21-22). It is apparent-from this brief summary of NRC Staff and i Intervenor arguments that neither-party has considered the ad-vanced state of these proceedings in their calculus for de-termining ripeness. It is a fundamental tenet of NRC law that a licensing board has a duty to resolve promptly_the conten-i tions before it. See generally Statement of Policy on Conduct -of Licensing Proceedings, CLI-81-8,,46 Fed'. Reg. 28,531 (May 27, 1981). That duty can not be fulfilled if this Board ac-cepts the NRC Staff's and Intervenors' arguments and places Shoreham's otherwise completed operating license into~indefi-nite limbo, pending interpretation by an unknown succession of state and federal courts of the New York State statutes and Suffolk County ordinances which serve as the basis for the first ten contentions. Instead, the Board should discharge its duty in.either of two ways: first, by concluding that the pre-emption issue is not yet ripe since the consistency of the LILCO Transition Plan with the requirements of 10 C.F.R. 15 50.47-can be determined on the facts without first resolving

, L k Contentions 1 lO; or~second, by finding that the preemption

issualis-ripe;and then. resolving that issue.

When contentions are admitted in NRC proceedings, 10 C.F.R.

!i' 2.732 does not automatically operate to require an ap-plicant~to disprove those contentions. Instead, the proponents of a~ contention bear the initial burden. This burden was - explained by the Appeal Board in Louisiana Power and Light Co. (Waterford. Steam Elec. Station, Unit 3), ALAB-732,.17 NRC 1076 ' (1983): .The ultimate burden of proof on the question of whether the permit or license should be issued is, of course, upon the applicant. .But where, as here, one of the other parties contendsLthat, for a specific reason (in -this instance _ alleged synergism)~the. permit i or license should be denied, that party has the burden of going forward with evidence to ' buttress that contention. Once he has in-troduced sufficient evidence to establish a prima facie case, the burden then shifts to the applicant who, as part of his overall burden of-proof, must provide a sufficient rebuttal'to satisfy the Board that it should . reject the contention as a basis for denial of the permit or' license. - id. at 1093, citing Consumers Power Co. (Midland Plant, Units 1 and 2),DALAB-123, 6 AEC 331, 345 (1973) (emphasis in origi-nal).3/' Thus,.if the Board concludes that the preemption is-sues are not rip,e, it need not and should not withhold its 3/ 'This concept of a threshold showing was approved by the SupremeLCourt.in Vermont Yankee Nuclear Power Corp. v. NRDC, ~ 435'U.S. 519, 549-55 (1978). L

Ti ..: judgment on the adequacy of the LILCO Transition Plan pending a suitably dispositive ruling of the New' York State courts. Intervenors in this. proceeding have not carried their ini-tial burden with regard to Contentions 1-10. They have done no more than_ offer contentions which allege that various New York State statutes and local ordinances proscribe activities in-cluded in the LILCO Transition Plan. None of these enactments, on its face, proscribes any activity in the LILCO Plan. See NRC Staff Answer at'10-11. Intervenors have yet to offer any State-court ruling, much less a definitive one, which_ inter-prets these statutes. Indeed, they did not even undertake to seek such a ruling until some six weeks after the Licensing i Board instructed them that in its absence, the Board would pro-ceed with respect to the issues before it.4/ Tr. 3675 (Laurenson). Thus, intervenors have failed to carry their ini-tial burden, and the first ten contentions can simply be decid-ed in LILCO's favor. Should State courts later interpret those statutes to proscribe certain activities in the LILCO Transi'- tion Plan, then-those rulings, depending on their content, can be used as a basis for reopening this proceeding as necessary. Simple fairness suggests that Shoreham's operating license .should not be held hostage by unsupported assertions of state 4/ As was discussed in note 2 above, Intervenors' attempts to excuse their failure to obtain a State court decision by alleg-ing that LILCO has delayed such proceedings are without basis.

w~- NU ' L ' ' - SY) 7, yh 5 l x ' ^ < + ~ i ~ .J: Ll'aw that:thi's? Board-is not deciding itself.5f :See Consolidated M Edison Co.: L(IndianiPoint Station,. Unit No.'2), ALAB-399, 5 NRC s 1156L1170 (19.77). n f iAlternatively,.this-Board:could find the preemption issues friperand!proceedLto rule;on LILCO's motion. The: preemption-u- _.e l .f i

issuefisjnow' ripe'forLdecision because:of the advanced state of

~ e [5] The} state-law 1". legals authority" issues are fundamentally. zdifferent:from'other> issues.in'this case. Whether or not this i . Board:has jurisdiction to resolve.them=as matters of? State law 1(LILCO believes:thatiit does as a matter of pendant jurisdic-a . tion,vand~so stated-last January 27, 1984, Tr. 3664-67-(Irwin), L Kthe-Board has chosen:to consign their resolution,-in state law F' terms,.to state courts. Therefore,.unlike " ordinary" conten-tions? this~ Board has no control.over the state-law basis.for resolution of.these issues, nor over-the_ procedures available to the-parties,Lthe record before theistate-law tribunal, or i .P, -the' pace of the' issue's resolution. Where a. Board has control. , ;p 'over those aspects of;an issue and can require the parties =to .. c be put to1their proof, it is not~ illogical'or unfair to impose a ~ @f. on the applicant the: burden of-proof;after some other party has raised an issue'that meets the initial 1 prima facia-case plead-ing threshold. Here,fhowever, not onlyLdoes the Board have no control over the' parallel state-court proceeding, but the dig-nitylof_the allegations before:it -- mere citations to state-law statutory provisions without any authorative interpreta-tions --'.does not even meet the-prima facia case threshold. ~ Under'these' circumstances, reflexively staying its hand until a state court'has acted'with sufficient definitiveness subjugates

the' federal proceeding to those of the states and places any; 7'

' license: application hostage to an almost unlimitable potential variety.of state and local. proceedings. 'If this theory, being urged apparently by both Staff and Intervenors, prevails, it will certainly be's boon for~intervenors. Henceforth all-an .intervenor:would need?do'would be to. find a few state laws or ' town ordinances ~that he could allege. prohibit some aspect of' plant. operation. HIf his' legal claim met some (very' low)

threshold of. plausibility,.the applicant would have to go to fatate. court or courts to disprove the contention sufficiently

. definitively to enable the NRC itself to decide the ultimate ' issue of. plant operation. 4 4 e ,[ ' sy

.o. - 1 this proceeding: the factual record has been closed and pro- - posed findings will be completed on all contentions, save Con-tentione l'-lO,'within the next month. Failure to resolve Con-tentions 1-10 at this time would result in those contentions' . becoming the pacing items in this proceeding. LILCO agrees that as a general proposition it is prefera- .ble not to confront preemption issues until an actual conflict between state and federal law is presented. See NRC Staff An-swer at 6-7. However, this does not mean that preemption is-sues must always await definitive rulings on the applicability - and effect of state statutes. Where resolution of a state or local-law question delays a decision on an NRC permit applica-tion, licensing boards have a duty to resolve those issues, including deciding preemption-issues. See-Indian Point, supra, 5 NRC at 1170. This proceeding has now reached that stage. -Therefore this Board must now resolve the preemption issues. Contrary to the NRC Staff's suggestion, Appeal Board deci-sions (id; Consolidated Edison Co. (Indian Point Station, Unit No. 2), ALAB-453, 7 NRC 31 (1978)) do not compel a different conclusion. Those cases presented the question of whether a licensing board needed to reach preemption issues in order to prevent the shut down of an operating nuclear power plant.s/ s/ Indian Point 2 was constructed using once-through cooling; the NRC imposed an operating license condition that it be (footnote continued)

0:1 - ~ j 1 N dy:"l~ m. T (InJdecliningJto reach the-preemption 11ssue in each case, the Appeial Board was obviously swayed by.the Licen' sing Board's ex- ~ Ltensions.ofLthe: compliance date for the, license condition, s. ~ which' permitted;the,pl' ant to continue operating while local- = zoning} law questions were resolved-and construction activities 'were; completed!to' meet the condition requirements. See 5 NRC i

at 1170-71;i7:NRC at 37.

-By comparison,.this Board does not have the luxury of ex- !~ tendingithe compliance:date of a licensing condition and thus [' avoiding harm to-the~ applicant. Instead, this Board is forced L to choose between placing this! proceeding'in an indefinite state-of. limbo pending a suitably definitive State court I L ruling,1and thereb.y requiring,LILCo to incur huge financial penalties, or. dealing with the preemption issues now. There

really..is no' choice;-if.the Board believes that resolution of p-the l'ssues raised by the " legal' authority" contentions is nec-Ot essary to its. decision,'then it'must. decide the preemption

,.(footnote (continued) backfitted with a closed cycle cooling system by a date cer- =tain.s Indian Point, supra, 5 NRC at 1158-59. A local zoning . board, whose approval was necessary under New York law to au-E lthorize construction,. failed to act legally in time to permit n .the cooling towers' completion before the date required in-the NRC operating license. .Id. at 1168-71. The Atomic Safety and Licensing' Board-twice avoided the issue's ever becoming ripe by p s Egranting extensions, first for one year and-then for~an addi-etional two years,Hof Indian Pont's authorization to operate a F once-through mode. See.id. at 1163; Indian Point, supra, 7 NRC i at 32.- o 1 L

~ (7 <o , Lissues now.7/. B. The state. court decision may not resolve the contentions .Second, evenlif this Board were to follow the'Intervenors' and NRC Staff's suggestion and await a state court decision, that decision would not help materially to advance the resolu-tionLof. Contentions 1-10. As is'shown by the table attached to this' pleading (Attachment'l), two of the issues raised in the i contentions are not even raised in.the. County's complaint in -state court and thus will not be resolved by a state court de- ' cision.- In addition, the state laws that are' relied upon by 'the Intervenors in both Contentions 1-10 and the state court I complaint have never been briefed by the County. When it came p 1/ Both the NRC Staff and Intervenors contend that this Board characterize any ruling on preemption issues as an " advisory" opinion. Even accepting this characterization as correct, which LILCO believes it is not, nothing in NRC case law prohib-its.the issuance of such opinions, and in fact, it.has long been recognized.that licensing boards have the authority to grant such opinions. Kansas Gas & Elec. (Wolf Creek Nuclear Generating' Station, Unit No. 1), CLI-77-1, 5 NRC 1, 4-5 (1977). The Commission has stated that advisory opinions are appropri- . ate "to terminate a controversy or to remove uncertainty." Id. -In this case, compelling circumstances exist for issuing such an opinion. LILCO cannot. receive a full power operating li-conse before its emergency plan is approved; that approval re-quires a conclusion either that LILCo has the authority to im-plement it as a matter of federal law, or that such authority is not necessary. Resolution of state-law legal authority is-sues by state courts will not resolve the question of whether ~ those laws, to the extent.they are found to conflict with fed-eral law, are preempted by federal law. The ultimate question ~in this proceeding remains one of federal preemption. This Board.is eminently qualified to resolve that issue. p

v.

• / time to.b'rief those issues, the Intervenors, just as they have done in this proceeding, basically ignored the state laws that they' cited in their complaint and asserted a totally different legal theory for resolving the issue under state law -- that is,:that the concept of police power is inherent in emergency response and has not been granted to a corporation.

Thus reso-lution of issues now raised in New York State's and Suffolk County's papers before New York State court will not directly a address the issues raised by Contentions 1-10 themselves. In that regard, it appears that Contentions 1-10, although they have many state laws cited, lack basis and specificity and should be dismissed. The NRC Staff appears to agree,. stating i that "[t]he statutes cited by contentions 1-10 . simply do not, on their face, proscribe LILCO from.taking the emergency actions which the Intervenors assert to be unlawful." NRC Staff Response at 10. II. The Intervenors' Latest Arguments on State Law Are Outside the Scope of Contentions 1-10 The Intervenors urge the Board to accept certain arguments that they are proposing in state court in order to rule on LILCO's motion for summary disposition on Contentions 1-10. SC/NYS Opposition at 4, 24-31. In fact, all that LILCO has asked this Board to assume is that a determination on the basis of state laws cited in Contentions 1-10 is adverse to LILCO.

L . ~LILCO has not accepted any of'the arguments proposed by the In- . tervenors regarding those state law issues;g/ it has not asked .the1 Board to determine those state law issues; and it has not . asked the Board to determine tate law issues-that are not contained'in Contentions 1-10. T ontentions 1-10'merely list certain statutes (set out in C ' Attachment 3 to this pleading) which the Intervenors argue pro-hibit certain actions under the LILCO Plan. Nowhere in Conten-tions'l-10-orLin their preamble appears the assertion, which - the Intervenors now raise for the first time, that LILCO "in-tends to exercise police powers that are reserved to the States by the 10th Amendment."- Similarly, Article IX, Section 2 of the State Constitution and Section 10 of the Municipal Home Rule Law, cited at pages 25 of Intervenors' response to support the proposition that LILCO is exercising police power, does not appear in Contentions 1-10. Nor does the notion that New York o . g/. Intervenors assert in their response that LILCO has admit- 'ted for'the purposes of its motion for summary disposition sev-eral sweeping assertions about state law as it is applied to LILCO. See Intervenors Opposition at 4, 94-96. LILCO has ad-mitted no such thing. LILCO has assumed for the purposes of its motion that the state laws listed in Contentions 1-10 pro-hibit'the activity described in the LILCO Plan, nothing more. Contrary.to Intervenors' response, it does not follow from that assumption that (1)-the LILCO Plan will involve an exercise of - the police power, (2) the activities described in the Plan can . be only undertaken by the state or its delegate, or (3) State corporation law prohibits LILCO from taking those actions. None of these broader propositions appear anywhere in'Conten-tions-1-10 and the Board need not assume that these proposi-tions are true in ruling on LILCO's motion.

f,. p,. n,J u.. _ d

Corporation: Law prevents LILCO from taking the actions it

~ Jseeks; JSee;Intervenors' -Opposition at 27-30. The'~Intervenors in their1 response.for the first time char-Lacterize Contentions:1-10 :as.follows: The! State _and the County do not merely con-tend,Las.LILCOLimplies, that LILCO's pro-posed actions'will' violate this or that spe-cificistate-law or county ordinance (although they will do that too.) Rather Jthe~ State-and County. contend -- and LILCO necessarily must.a& nit this for present pur- -poses - that LILCO cannot implement its 3 -transition plan under the laws of New York because that plan calls for LILCO to exer - cise police powers'that have never been, and -cannot be, delegated to it. IThat_ notion is not stated anywhere.in Contentions 1-10 or in any other con'tention that has been raised before this licensing i

board.

These arguments;are outside the scope of Contentions 1-

10 and should not^be considered by this Board in determining

.whetherLContentions 1-10 should be decided summarily in LILCO's -favor. In addition, as previously discussed in LILCO's Motion, the.Intervenorsaresimplydncorrectwhentheysuggest (see .SC/NYS Opposition at-30-31) that this Board is being called upon.to set aside whole portions of New York state law. All t- =LILCO is doing is asking for a judgment that matters of ra-diological health and safety, whether they be siting require-ments, seismic ~ design requirements, plant safety systems, or emergency planning requirements, cannot be regulated by a state

m g s x. ' 'or-a' locality-by applying state laws so as to prohibit actions ' required by-federal ~ law. It is only insofar as the existing laws'c'ited in' Contentions 1-10 are being applied to prevent the operation of a nuclear power plant that those laws are pre- 'empted. III. The Preempted Field: Emergency Planning versus Regulating Emergency Planning The first of the five-reasons advanced by LILCO in support V oft-its motion is that the State laws at issue invade a pre-I empted' field: regulation of the operation of a nuclear power e . plant.9/ Any state law that~ attempts to regulate in this field n 'is preempted no~ matter what the motive behind.the State law and 2; i no' matter,whether it actually conflicts with federal. law or _not. ~ The stateLlaws at issue here attempt openly and un-abhshedly (according to Intervenors) to regulate within the preempted field. Hence the Intervenors miss the point when-v they argue that LILCO must show express intent on Congress' past.to confer preemption'.10/ The Congressional intent to

9/l As the Brenner licensing board has observed in this pro-r

- ceeding,'the-Atomic Energy Act'both explicitly and implicitly h-spreempts the field of nuclear licensing and regulation. Long

Island Lighting Co. (Shoreham Nuclear' Power Station, Unit 1),

LLBP-83-22, 17 NRC.608, 638, aff'd on other grounds, CLI-83-13, 17LNRCL741.(1983). ' 1_0f It is the-Intervenors who must show Congress's express in-0 + tent: (footnote continued)

m., t' 'I- ~ t ? i kh ~i g-20 4 s x '. gg ' preempt'the field.of nuclear plant operation.is well estab-j flished(already;fLILCO;need show nothing except that.the state t m r ~ As the ~ Supreme Court stated 'in dis-q ~,- flawaiinvade the field.. ussing the California statutes at. issue in the PG&E. case:11/ c 4 1 2%, '.(footnotelcontinued) c 'I [T]he federal government has occupied the entire field of nuclear. safety concerns, exceptLthe. limited powers expressly ceded ,to the; states. i> ' Pacific Gas & Elec., 75 L.Ed.2diat 770-(footnote omitted). As ~ i the Brenner board observed ear, lier in this proceeding: .Where' Congress has intended to permit state regulation of matters'of. radiological health and safety,,it'has stated this.in-l - 'tention in clear and unambiguous terms. i This was:the case when Congress amended the Atomic Energy Act of:1954 bytadding Section ~274, 42 U.S.C. is.2021. This was demon-strated again in' Congress' recent enactment of the Nuclear Waste Policy Act of 1982, 42 F EU.S.C..Il 10101 et seq. Sections 101~and ^ 116'of the Act,-42 U.S.C'.'ll 10101-and i v m* ~ 10136, specifically describe the participa-c tion of states in. waste. repository siting . decisions,. including a-state's authority to submit'a " notice of. disapproval" of a des-4 .ignated site.within its borders, i .Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit

1),:LBP-83-22, 17 NRC 608,- 642, aff'd-on other grounds,

'CLI-83-13, 17 NRC 741.(1983).- - M / The Supreme Court dealt in PG&E with 6 25524.2 of the ECalifornia Public: Resources Code, which required that before the' State Emergency Commission would be allowed to issue any further certificates'for? construction of nuclear power plants in. california,'the' Commission'would have to find that (1) the q - appropriate agency of the United States Government had approved ~ .a. technology or means for permanent and terminal disposition of (footnote continued) i 4. f s ? I b~ (

Q: pp T= U . At the outset, we emphasize that the statute does not seek to regulate the construction or operation of a nuclear powerplant. It I-would clearly be impermissible for e California to attempt to do so,'for such regulation,-even if enacted out of non-safety concerns, would nevertheless directly conflict with the NRC's exclusive authority over plant construction and operation. '5 L.Ed.2d 752, 770 (emphasis added). 7 Pacific Gas & Elec. Co., Offsite emergency planning is inherently an area within 1the exclusive radiological health and safety regulation domain of-the federal government. Offsite emergency planning is the final-safety-system in a series of safeguards beginning with seismic-design'(10 C.F.R. Part 100), general design and quality assurance. criteria for safety-related systems (10 C.F.R. Part 50,. App. A & B), and extending through emergency core cooling system performance criteria (10 C.F.R. 5 50.46 & App. K), (footnote continued) high-level nuclear waste, and.(2) such a technology had been demonstrated. The Commission's finding was then subject to ap-proval by the legislature. Unlike the present case, 6 25524.2 applies on a generic basis, does not purport to regulate power plants on the basis of safety, and is premised on an explicitly economic rationale. 75 L.Ed.2d at 761, 770-71. A second sec-tion of the Code, $ 25524.1(b), would have required case-by-case determinations by the Commission of the adequacy of spent fuel interim storage as'a prerequisite to preconstruction cer-tification.- The Supreme Court found this section unripe for review since there were no pending nuclear applications in California, id. at 764-65, though it signaled its discomfort with any enactment that would look like safety regulation of nuclear power plants (id. at 765-67) or apply to federally ap-proved individual plants on a case-by-case basis (id. at 777 note 34).

~. p c f physicalfsecurity requirements to design ~against sabotage (10 C.'F.R.~Part 73),'and onsite~ emergency planning requirements (10 tC.F.R. l.50.47)'. The offsite-emergency planning requirements of 10 C.F.R. 55 50.47 and 50.54, and the related guidance in NUREG-0396 and -0654, are:merely the final link in.this unbroken chain of NRC

safety requirements.

These' requirements are intended: '(1) to ensure 1that commercial nuclear plants arefdesigned, built, and 3 operated to' avoid accidents and other events that could involve unacceptable-radiological risk to the general public;- (ii) to mitigate postulated accidents in such a. fashion as to avoid unacceptable offsite releases; and'(iii) to minimize risk to the general public.from any.of a spectrum of accidents; however

unlikely,-whose. consequences exceed-those'of design-basis li-censing events.

The courts'have consistently rejected ~ substantive chal- .lenges"to the NRC's requirements.for and judgments concerning-i any'of;the links in this' health-and-safety regulation chain, from-reactor siting, United States v. City of New York, 463zF. Supp.:604l(S.D.N.Y. 1978), to normal' reactor releases, Northern States Power Co. v.--Minnesota, 447 F.2d 1143 (8th Cir. 1971), i aff'd mem.,.405 U'.S. 1035 (1972), to emergency core cooling, 1Nader v. NRC,.513;F.2d,1045 (D.C. Cir. 1975), to safety-related aspects of_ waste disposal, NRDC v. NRC, 582 F.2d 166 (2d Cir. /1978).M / 'There is no. question that a~ State's attempt to F 12/f:Two^of these-casesE-Northern States and United States v.

City of New York --' involved conflicting provisions of state or

-local law found preempted by the Atomic Energy Act. a-a W- -Iw vrw 4-wy w w

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^ -impose. general design criteria,-or seismic criteria, or emer-gency core cooling. criteria different~from those in NRC's regu-i. .lations would be-invalidated as-an impermissible intrusion into 'the~ federally preempted: area of radiological health and safety

regulation associated.with reactor construction and operation.

The NRC's emergency planning regulations, like the other regu-lations,-were promulgated solely for the protection of the pub-o lic against radiological. risks.13/ 45 Fed. Reg. 55402, 55403 (August 19, 1980).14/ In making the preemp. tion analysis, there ~ is no basis for treating this final lit in the radiological. health-and-safety protection chain any _.rferently from the ~ Mother links. It, like them,-is in the occupied area. l 713/ It might well be noted, in addition, that-the.Intervenors'

opposition to emergency planning is' allegedly based on their

. view that geography makes emergency planning for Shoreham im- 'possible. Thus, they are challenging the~NRC. siting regula-tions as well as the emergency planning regulations. 14/: The1 preamble to the NRC's emergency planning regulations -states, in pertinent part: The Commission's final. rules are based on the significance of adequate emergency planning and~ preparedness to ensure ade-quate protection of the public health and~ safety. It is clear,-based on the varicus official reports described in the proposed rules (44 FR 75169) and'the public record-complied in this rulemaking, that onsite

and.offsite emergency preparedness as well

~ as proper' siting and engineered deutgn fea-tures are needed to p*otect the health and-safety of the public. ~ 45: Fed. Reg. at 55403. W [ 9 4 ir e w ,o,w,<--; e --w ,-i-r ,,*-y--vsw,,.,w,,,w,---.,,--y--y

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m s This basic principle was restated just five weeks ago in the Diablo Canyon case, where the Appeal Board affirmed a li-censing board refusal to adopt emergency planning zones larger than those specified by NRC regulations, even though the state of California had adopted the larger zones. California argued Lthat the licensing board should have deferred to the state zones "as a matter of federal-state comity." The Appeal Board ~ disagreed: Although section 274 of the Atomic Energy Act provides a framework for coopera-tion with, and, transfers of authority to, the states.for the regulation of_certain ~ byproduct, source, and special nuclear mate-rials, that section~also requires the Com-mission to retain all authority and respon-sibility for the regulation of nuclear power l plants and prohibits any delegation of that authority. .It should hardly need be stated .that the Commission's emergency response reqairements are an integral part of the agency's regulation of nuclear power plants, and compliance with those rules determines whether an applicant receives an operating license, not obedience to additional requirements that may have been adopted by state or local authorities. Even though -offsite emergency planning depends upon y SE state and local resources, the applicant cannot be denied an operating license, if, as in this case, planning within the-NRC prescribed EPZs complies with the Commis-sion's emergency response requirements. Pacific Gas & Elec. Co., (Diablo Canyon Nuclear Power Plant, ~ Units 1 & 2),.ALAB-781, 20 NRC slip op, at 20-21 (SeptemberL6, 1984)_(emphasis added)'(footnote omitted).15/ -~ the l_5/ This was not a case'of " actual conflict" preemption; applicant could have complied with both state and federal law (footnote continued)

x e -- ~, The NRC Staff also has missed the point when it argues that' Congress and the NRC did not preempt the field of emergen-cy planning-because obviously state-and local governments ev-erywhere.(except at Shoreham) are responsible for that plan-ning. Of course Congress contemplated that states and local governments would actually plan,.or participate in carrying out . emergency p ann ng. But the-Staff and the Intervenors alike l i - overlook a' crucial distinction -- the distinction between doing emergency' planning, on the one hand, and regulating emergency planning, on the other. There is no question that states are intended to partici-pate in emergency planning. One Congressional goal, oft re-i peated,. is that " ultimately every nuclear power plant will have applicable to it a state _ emergency response plan that provides reasonable assurance that the public health and safety will not be endangered."

See, e.g.,

Conf. Report on H.R. 2330, Autho-rizing'Appropriationr to Nuclear Regulatory Commission, Fiscal Years 1982 and 1983, 128 Cong. Rec. H7677,. col. 2 (daily ed. Sept. 28, 1982). And states may set rules for their own con-duct of emergency planning; in Diablo Canyon, for example, the .(footnote continued) by simply adopting the state zone. Nor does it appear that the Appeal Board found a purpose of Congress that was being blocked (although it could be concluded that the purpose of uniform regulation was being thwarted).

. ' Appeal Board did not say that California's' expanded zones were null:and void -- only that they could not be imposed on the li-censee or-the federal government as a condition to a federal . permit. 'Likewise, the ultimate decision to a'dvise the public to' evacuate (for instance) is ordinarily made by the state or local. government; the NRC does not attempt to direct the gov-ernment how to make that_decisien.16/ But neither can the local government regulate the utility by directing it on what to do when,- upon the government's def ault, the utility has re-sponsibility for the offsite plan. This marks the dividing line between the preempted field and the field where state ac-tivity is permitted. Within the preempted area, it'makes no difference whether New York State and Suffolk County are acting with intent to regulate radiological health and safety 12/ or for reasons quite jl5/.Indeed, in this very proceeding NRC Staff witnesses jtestified that they lack.the authority to. direct state and local authorities what to do. Tr. 15,242-43 (Sears), 15,243, 15,248 (Schwartz). See also Consolidated Edison Co. of New York (Indian Point, Unit No. 2), LBP-83-68, 18 NRC 811, 937 (1983), where the Board rejected the NRC Staff witness's view that licensees should have the capability to activate the warn-ing sirens if local officials fail to do so within 10 minutes of notification by licensees. The board observed that the NRC regulations require a " capability" to inform the public prompt-ly and presume that the responsibility to activate the system The will be fulfilled by the State and local governments. board found no justification for a reassignment of the respon-sibility in contradiction to the regulations. '12/ It:is impossible, in any event, for Suffolk County to deny that its opposition to Shoreham's operation, in the emergency (footnote continued)

7. j we . unrelated.' In-Alessi1v. Raybestos-Manhattan, Inc., 451 U.S. 504)(1981), the Supreme Court,.having found that ERISA intended ,1 to-permit certain types of offsets against pensions, found that it preempted to that extent a New: Jersey state law " ostensibly ~ Lregulating a matter quite different from pension plans. The 'New Jersey. law governs the state workers' compensation awards, which obviously are within the' State's police powers." 451 -U.S.L504,1524'(emphasis added). Nevertheless, having foun'd in r .ERISA an' intent to preempt: contrary legisation, the Supreme ~ [CourtEfound that this ostensibly unrelated. hew = Jersey statute ~ -related to pension. plans because it eliminated one method for -calculation-of pension benefits permitted by federal law. Id. ~ The Court further concluded that the State should be prevented '"from avoiding through form the substance" of federal require-ments.in the preempted area. Id. at 525. -The NRC Staff's reluctanceito accept this line of reason-ing isLapparently based on.the notion, set out in the preamble ~ to ihe'.NRC emergency planning regulations, that: -The Commiss' ion recognizes there is a possi-bilitynthat the operation of some reactors may be affected-by this rule through'inac-tion of State and local governments or an . footnote continued) ( j, - planning area, is based on 'its belief that the NRC's regula-Fr tions1 provide inadequate protection to the public health and safety., See LILCO's Motion at 28-33. Similarly, New York State;has opposed Shoreham for reasons that dovetail-with the County's. s 1 i f ,.,4-, ,,.,p., --r.,-,m.,- ,u.--.,,,,-..-w, , +, -, ,--,.-m-,,r ,,,.-,,,yw,,,.,,--,,,m.,-,,y,w

43 4 v $4, s;

. 8 -

X-. ~ inability 3to: comply with theec *).es. The Commission believes that the potential re-

striction of. plant operation.by State and

localtofficialsjis not'significantly differ-

+ -ent.in kind or-effect from the means already ~ -available;underLexisting lawLto prohibit.re-

actor operation,

such ' as zoning 1 and land-use lawsiccertification of public convenience and necessity, State financial and rate con-

-siderations1(10 C.F.R.- 50.'33(f)) and. Federal 1 environmental: laws. c45. Fed. Reg.735402, 35404..( Augusto19, 1980).. But in'the con- -teEt of'.the: comments that were received and'the discussions ~ .that went"on-while'the NRCLwas deliberating over,the then- ^

proposed 10 C.F.R.

$ 50.47, this passage can only be taken as I 'ailures-to plan could de facto aniacknowledgemest that states' f R much as the failure of a state 4 L -interfere with plant operation, itoigive. adequate rate relief might'de facto inhibit a utility's . ability-to,. finance a nuclear plant. The preamble passage does not' contemplate.a de~ jure state veto, and, in any event, would '_ lbeinsuffic'ient to est'blish one. a ~ The rulemaking record shows1that the Commission was warned- + ~ ~ Taboutithelpossibility ofLa "de facto" state. veto.lg/ The solu-Ltionitolthe. problem-wasfto provideLS 50.47(c)(1), which permits 1 [ interim compensating' actions."' To:beisure :this provision was u ~ 13/ I"The; staff recognizes this potential for a third party L ' defacto:[ sic] veto power. The Commission is also aware of .this." 'SECY-80-275,' June 3,.1980, Enclosure L,' Analysis of JACRS Comments,catL8. An-industry witness, Mr. Owen, also re- ~ _fe'rredito:a "de' facto veto."' Statement'of Warren H. Owen, June -25,J1980, sat.8, bound into transcript of NRC June 25, 1980, ff. 'Tr.:131. t' b

. ~. 3: :, bG s- -29 " -not intended to be a: guarantee that a plant would operate; ob-

viously'there might.bel cases where'the applicant could not'or

-i -would$not compensate, on the facts, for the failings of local governments..But.whereisuch compensation could be effected, Lthe> regulation's. clear purpose was to permit it. 'In? addition, the licensing boardJin this very proceeding 'has found that.Suffolk County's actions' amount to proscribed tregul~ationiof nuclear power. Long Island Lighting Co. .(Shoreham Nuclear' Power Station, Unit 1), LBP-83-22, 17 NRC 608,.~a'ff'd'on other grounds, CLI-83-13 (1983). The'Brenner -board found,,in' denying?the County's motion to terminate this proceeding, that Suffolk County'was trying to impose its will ~ onlthe Nuclear ~ Regulatory. Commission regarding'its views of Shoreham's safety, and that such imposition of will by a local-tity is: preempted-by the Atomic Energy Act. Contentions 1-10 represent nothin'g more'than an attempt to ~ -relitigate the County's motion to terminate on the grounds that -only;a; government can do~offsite emergency planning by.

recasting the argument in termstof: state law.

That issue has l already been' decided against th'e Intervenors. The NRC Staff's e- / assertion =that-these laws are " materially different" from Suffolk County Resolution No. 111-1983, NRC ~ Staff ' Response at _11,'does notimake sense; the. assertion that state law-prohibits Loff' site planning by~a non-governmental entity, and the asser- ~ tion that,only-offsite-plans implemented by governmental i entiti'es would meet NRC regulations, amount to the same idea.

y . >u -

IV.

Federal and State Law Conflict in this Case i Suffolk County and New York State argue that offsite emer-gency planning'is outside the admittedly exclusive federal do-i main of-radiological health and safety regulation. Thus, they ~ 1 contend-they are entitled, in-the exercise of what they amor-phously. refer to as their " police powers," to prohibit LILCO ~ 'from.' implementing measures,. with specific respect to the

Shoreham Nuclear Power Station, necessary to comply with the NRC's. requirements-for.offsite emergency planning.

At least .for' purposes of this argument, Suffolk County.and New York ' State do not quarrel with the proposition that these measures, if implemented, would be sufficient to satisfy NRC require-ments. Though their present arguments depart radically from Contentions 1-10 and take.many forms, they all boil down to three arguments: (1) that LILCO, as an entity of defined and -limited legal powers, lacks the affirmative capacity as a mat-ter.of state law to perform the functions required to meet the 'NRC's offsite emergency planning regulations; (2) that even if LILCO possessed, in the abstract, the affirmative power under state law to undertake these functions, the exercise of these either violates specific state-law legislative enact-ipower2 (Contentions 1-10) or invades general " police powers" in-ments sherently vested;in the state and not preempted; and (3) if the

Atomic-Energy Act were found to preempt state-law restrictions 1

y (. L.: i on 'LILCO s performance of these functions to the extent neces-sary to meet federal law, then-that federal preemption would itselfiviolate the 10th Amendment. The~first. argument is in-herently and totally a state law matter, now before the New . York-State Supreme Court, an'd outside the scope of Contentions

1-10.

The third. argument is dealt with below. This section deals with the second argument and addresses this question: assuming emergency planning is not in the area wholly preempted i by. Congress, are the State and County prohibitions preempted so

as to enable.LILCO to perform those emergency planning func-tions required by' federal ~ law?

-It'has been shown above that offsite emergen y planning, the last link in the nuclear-safety-regulation chain, is in the zone wholly occupied by Congress. However, even if the area ~ were not so viewed,-there are still two additional. specific groundsifor a finding of federal preemption: impossibility of simultaneous. compliance with state and federal requirements, and frustration of federal ~purp~ose. The Supreme Court recently summarized this familiar and consistent line of cases as fol-lows in PG&E: Even where-Congress has not entirely dis- .placed' state regulation'in a specific area, state law is preempted to the extent that it actually conflicts with federal law. Such a conflict arises when " compliance with both federal and state regulations is a physical impossibility,'"' Florida Lime & Avocado Grow-ers, Inc. v. Paul, 373 US 132, 142-143 (1963), or where state law " stands as an ob-stacle to zhe accomplishment and execution ,k 7

3 s- '.. to the full purposes and objectives of Con- -gress." Hines v.-David: ritz, 312 US 52, 67 (1941). 75,L.Ed.2d at 765. 'Thefarguments presented by Suffolk County and New York . State make clear that even if the offsite emergency planning area has'not-been totally preempted, simultaneous compliance 'with federal and_ state schemes is impossible. Furthermore, the 'Intervenors' legal construct clearly would' frustrate the feder-al purposes of developing nuclear. power and demanding uniform federal regulation. As a result, the State and County restric-tions must be preempted on the facts of this case. A. Physical Impossibility It is undeniable that LILCO cannot simultaneously comply. with both federal law (which says there must be an emergency

plan) _and state-law'(which says there may not be an emergency

-plan), if-it is to operate Shoreham.19/ The Intervenors argue that "LILCO has no obligation under federal law that'it cannot comply with." This statement is patently. ridiculous. LILCO must show an offsite emergency plan 19/ The extent of the conflict-in-fact would vary with those actions found-to be necessary by this Board. If various traf- ~ fic functions associated with a " controlled" evacuation were considered necessary, then the conflict would include all of Contentions 1-10. In any event, the conflict would extend to -exercise of command-and-control functions (accident assessment, making protective action recommendations, communicating them through EBS and siren) and thus would include Contentions 5-8. .. ~.

nm ,- that:is adequate and can and will be implemented under 10 CFR 6 50.47.in_ order to obtain.an' operating license for Shoreham. .As.long as'the County and the Stat'e assert State laws as a bar .to LILCO's showing adequate planning, those laws conflict with the federal obligation. The County means, of course, that LILCO is not obligated by federal law to' operate Shoreham. But almost all cases of actual conflict could be avoided if the af- -fected parties merely.went out of business. However, that is obviously not an acceptable, or accepted, principle for resolving preemption issues. Also,'the Intervenors say that federal law does not autho-rize a utility to implement ~a plan, only.that the NRC may i consider a utility plan. But this does not help the Interve-nors, inasmuch as their position is that a state law may pro-hibit an NRC board from'ever reaching the merits of a utility plan.20/ To that extent, the State and County's prohibitions, no matter how characterized and no matter what their ostensible purpose, must be held preempted by federal law and thus inap-plicable to Shoreham. A holding of federal exclusion of state law is inescapable and requires no inquiry into Congressional 20/.Further, there is an internal contradiction in an argument which1would permit the NRC to " consider" a utility plan which could.then by prevented from being implemented by conflicts with state law. Under those circumstances, NRC " consideration" of a-utility plan would be an empty gesture in the face of state preemption. a

v . e. desIgnwpere-compliance-withbothfederalandstateregulations is a-physical. impossibility for and engaged in interstate com- ~ merce. Florida-Avocado and Lime Growers Assn. v. Paul, 373 U'.' S. 132, 142-43 (1983).21/ B.~ Obstacle to' Purposes and Objectives of Congress There is no question that, first, Congress intended that there should be operating nuclear plants and that there should i be good emergency plans. These are both sides of the same coin, because Congress's purpose was that there be good emer-gency plans so that nuclear plants would be safer. The Inter-venors' actions are designed to, and would in fact if they have their way, prevent emergoney planning altogether and prevent the operation of a nuclear power plant. There is a direct, crystal clear, unavoidable conflict with federal purposes here. Second, Congress intended there to be uniform standards of emergency planning, to be promulgated by NRC and FEMA and 21/ In Paul, the Supreme Court declined to find preemption holding that. simultaneous compliance with both state and feder-al requirements at issue (U.S. criteria for shipping avocados in interstate commerce,. California requirements for marketing 'of avocados in California) was not physically impossible. How-ever, the_ Court also ventured that had the federal statute pro-hibited shipment in interstate commerce of avocados'with an oil 3 content above 7%, while the California statute had limited mar-keting in California of avocados to those with oil contents above 8%, an unavoidable conflict would have existed and feder-alLlaw would have to supersede state restrictions. 373 U.S. at 143. ue

.. administered by those agencies. As the Brenner board has pointed out in this. case,.if the Intervenors get their way, there will be no' uniform standards of emergency planning for NRC-licensing purposes whatsoever. Again, there is a direct and undeniable conflict with the federal purpose. Third, there is also a clear purpose to allow a utility to avoid being penalized by a state's failure to plan. The Atomic Energy Act contains what now.three successive Authorization Acts 122/ and 10 C.F.R. S 50.47 (especially paragraph (c)(1), 22/ The full-Senate enacted S.1291, where 5 108 is identical to the " utility plan" provision of the 1982-83 Authorization Act,-on October 10. Congressional Record,.S.14,174-78 (Daily

Ed. October lO, 1984).

Its purpose, as stated by the floor manager, Senator Simpson, was to (confirm] the authority of the NRC to issue an operating license for a nuclear power plant if, in the absence of a State or local emergency preparedness plan approved by [ FEMA],-the Commission determines that there exists a State, local or utility emergency preparedness plan that provides reasonable assurance that public health and safety is not endangered by operation of the plant. . Ijd. at 14,175 (emphasis supplied). The House of-Representatives passed S.1291 the following -day. Congressional Record,.H.12,193-98 (Daily Ed. October 11, 1984). The remarks of Congressman Pashayan, one of the bill's sponsors, are worth quoting from: One of the key features of this bill is that it confirms the Commission's authority to consider and approve emergency plans submitted by utilities in support of a li-(footnote continued)

.-s. - which was promulgated to be consistent with the 1980-81 Autho- ~ ization'Act) made~ explicit -- that there is a clear congres-r sional intent to allow a utility. plan option to prevent pe-nalizing utillties where a. state or a locality refuses or is unable to do offsite emergency planning. The Atomic Energy Act,'the-Authorization Acts, and the NRC regulations show a consistent pattern from 1980 to the present~of allowing offsite planning to be done by utilities.23/ We will. elaborate on I (footnote continued) cense application. In other words, if States and localities that normally would be expected to submit a plan are reluctant or deficient,.the bill confirms that a utility may submit the plan, and the NRC is then obligated to consider that plan in deciding whether to license a plant. I ap-plaud this provision, which I view as clea.rly confirming what is already-the law: that a plan submitted by a utility will satisfy the Atomic Energy Act's require-ments. I also view existing law as providing authority for the Federal Govern-ment to implement any utility plan sub-mitted under this provision. The Congress does not intend to allow States or localities, _by refusing to par- ~ ticipate in the emergency planning process, to prevent a completed. facility from op-erating. Id. at 12,196. The bill now awaits President Reagan's signa- .tu re. 13/ The legislative history and the authorization acts are s

laid out.in detail in LILCO's Motion'at pages 13-28.

The In-(footnote continued) V

3 s

,~' n

, these parts below. 'It'is clear that one of the primary. purposes of the Atomic . Energy Actiof 1954 has always-been, and continues to be, the development of the-nuclear industry "to the maximum extent con-sistent with the' common defense and security and with the health and safety of the public.~" 42 U.S.C. 5 2013(b); PG&E, 75.L.EEd. 2diat.776-76, citing Duke Power Co. v. Carolina Environmental Study Group,-Inc., 438 U.S. at 63-67. It is also clear that-one of the primary goals of the regulatory scheme under the. Atomic Energy Act is the imposition of a uniform na-tionwide scheme of safety regulations administered by the Nu-clear Regulatory Commission. These purposes are apparent in the detailed, comprehensive and uniform requirements set forth 4 inLgreat detail throughout the NRC's regulations.24/ This (footnote continued) tervenors argument that the language of the NRC Authorization Acts'"do nothing more" than confer " authority on the NRC to re- ' view'a ' utility plan' to determine whether it provides an ade- -quate basis for granting an operating license", Intervenors' Opposition at 6, is absurd.. The Authorization Act language clearly evidences Congress' intent that utilities may do offsite plans;if a State.or County refuses to plan. In addi-tion, there is no reason to ask the NRC to review a utility plan if, as the Intervenors. argue, offsite emergency response is inherently a police power act that can only be implemented by a State or local government and not a private entity. Fi-

nally, it 1s not the Authorization Acts that preempt state law.

1 'The: Atomic Energy Act preempts state law. The Authorization . Acts are simply indicia of Congressional intent regarding the Atomic Energy-Act. 24/ This federally imposed uniformity does not extend to those . areas expressly ceded to the States, see PG&E, 75 L.Ed.2d at (footnote continued)

a pattern of uniformity in health-and-safety regulation extends to'the field of-emergency planning, from the postulation of

standard accident' mechanisms release levels and emergency plan-

~ ning' zone _ size in NUREG-0396, to.the detailed specification of emergency planning standards in NUREG-0654 and criteria in 10 1C.F.R. 5 50.47. -New York State and Suffolk County claim the right to pro-hibit LILCO fromfexercising any or all of the emergency plan-ning functions enacted into the federal regulatory scheme for the-protection' of the public health and safety in the operation of; individual nuclear power plants. They claim that as a mat- 'ter of New York State law, both specific statutory law and in-herent " police powers," they have a legal monopoly over the au-thority to-act for the protection of the_public health and safety'in New York, and that LILCO cannot act in their stead even where (1)'it owns and is prepared to commence operating a nuclear power plant which'is acceptable under all applicable federal safety _ standards, (2) they have refused to perform any emergency planning functions, and (3) the emergency planning (footnote continued) 770, n.25 (where the court's enumeration of ceded areas does not include emergency planning authority) or to the states' " traditional authority" over non-safety related aspects of utility regulation: "the need for additional generating capac-iry, the type of generating facilities to be licensed, land <use, ratemaking, and the like." Id. at 770. Elsewhere, howev-er, the federal interest remains paramount.

m / O# .3 - measu'res proposed by LILCO would, if implemented, be adequate ' in fact under applicable safety standards, i.e., 10 C.F.R. 'l 50.47. 'What this amounts to is an assertion, not found in any federal statute, that they have monopoly power to perform emergency planning functions, and that since those functions are' required in order to secure or maintain a' federal operating -license, they have a veto power over the issuance or retention of that license. The State / County argument makes no pretense of being -grounded in matters.other-than health and safety regulation; nor is'it limited or limitable in time. What it boils down to ' is an assertion of a State or local veto power over nuclear power plant operation, at any time, for any reason or no rea- ~ son,.using the mechanism of their withdrawal from or refusal to participate in the required health-and-safety function of emer-gency planning. Let there be no mistake about it: the same rationale that Suffolk County and New York are asserting now as .an arbitrary and absolute bar to Shoreham's commencement of op-eration without their consent could, if it is credited, be as-serted again in.five, ten or twenty years, any time either gov- 'ernment decides that it wishes to shut the plant down. Let there.also be no mistake that this argument, being asserted today in New York, could with equal validity be asserted tomor-row in Vermont, the next in New Jersey, the next day in Illinois, and the next in Florida, to shut down operating ,y. yy- ,,,mt. v ww v<T Su "ww "'-WFV TC7

L 1 f.- nuclear power. plants even though emergency planning is, on the facts, adequate without State or local governmental participa-

tion 25/ and all other NRC safety standards are met.

The County / State preemptive argument would unquestionably Jfrustrate the achievement of federal purposes in the Atomic En-ergy Act, successor legislation and implementing NRC regula-tions on' emergency planning. Clearly,-it would frustrate the goal of development of the nuclear industry in a manner consis- ~ tent with protection of the public health and safety, since it would potentially prevent, or halt, the operation of fully com-pleted nuclear plants which complied in every respect -- including the factual elements of emergency planning -- with i NRC regulations.2p/ The Supreme Corrt in PG&E stated that Congress has left

the States enough room under the Atomic Energy Act to " deter-mine -- as a matter of economics -- whether a nuclear plant 25/. A distinguishable situation-exists where,- if state and/or

~ . local governments have been participating in emergency plan-ning, their withdrawal leaves the utility, at least temporari-ly, unable to meet the exemption tests of SS 50.47(c)(1) or 50.54(s)(2)(ii). 2s/- In this regard, the California statute upheld in PG&E is distinguishable in important ways. That statute prohibited the issuance of further certifications of need for future nuclear plants in California until there has been developed by the United States government a demonstrated means of long-term storage of high-level nuclear wastes. The statute was prospec- -tive, was found by the Court to be couched in terms of economic regulation,'and not to apply to specific nuclear power plants.

v, T ~by + ie y, - 1 Ois-a-vis a?fossiliplant~sh~ould be built,.. and.to allow- .the' development of nuclear _ power.to be slowed or even. stopped 'for> economic reasons." 175-L.Ed.2d at 777. The Court did not, Lthereforejafind an! impermissible. frustration of,the purpose of I ~ development of nuclear power in a prospective California stat-utelat issue',1which-did not relate specifically to the con- 'struction-or: design of~ nuclear power plants and was couched on -an economic rationale. Howeveri as.the Court also acknowl- ~ edged,1'" State regulations which did affect the construction and ,4 . operation-of federally 1 approved nuclear power plants would pose L a different case."' -75 L.Ed.2d 7.77, n.~24. Intervenors' arguments.here clearly are aimed solely at i _. federally approved ~(or approvable)-nuclear power plants; and do notieven.purportito.have an acceptable, i.'e., economic, ratio-

nale..They clearlylfrustrate the congressional goal of devel-opment,of.th'e nuclear industry since they assert an absolute

~ andJarbitrary veto power, exercisable at any.. time, over the + r commencement'orfcontinuation:of operation-of power' plants that <have met all' federal safety: standards. :They also frustrate-the ~ goal lof. uniform standards of-safety. regulations inherent in-the f

NRC's. broad and comprehensive' regulatory-structure

condi-tioning.of State cooperation on, e.g., using a 20-mile radius inhalation emergency. planning. zone (rather than the 10-mile ra-r -dius-presumed by.~ federal'r gulations), would be equally offen-s 'sive to the federal ~ scheme. All else.being equal, it would -lt l f )-

..? s e .e s.2 L;; . require.four-times:as.muchLin'the way of resources as a 10-mile S6' r 4 ~ radius plan;.it:might,sas.a' practical. matter,'make effective .Intervenors' argument would-planning impossible in some: cases. lalso frustratenthe: specific intent of Congress in.the 1980, (1982-83 and'1984-85LNRC-Authorization Acts that the NRC review ~ tutility-only: emergency plans,ii.e~., those lacking state or - ~ local sponsorship. It:also would negate an important aspect of ~ ^ the exemption; provisions of.10 C.F.R. 55 50.47(c)(1).and' 50.54(s)(2)(ii),: permitting an applicant or licensee to show t ^ the absence of .whyfa deficiency'.in its emergency plan;(e.g., off-presumed state or. local sponsorship) was not significant, Lset by interim compensating measures, or outweighed by other I. (compellingfcircumstances. The: fact'that this. preemptive assertion of' power by the County 1and State is not being made by means of. laws relating is not specifically'tclShoreham, or.to nuclear power plants, relevant in determining whetherithat assertion-frustrates-a federal' purpose. .In Jones v. Rath Packing Co., 430 U.S. 519 s

(1977), th'eLSupreme. Court, weighing.(and finding);a preempted conflict between state and federal schemes for-determining the lab' ele'd weight.of! bacon and flour shipped in interstate com-

~ noted that.the-inquiry involved-traditional-state police

merce, powers.

The Court then noted that in such areas, the relevant inquiry is whether.the-state-law stands in the way of accom- ~ and plishment of the full purposes and objectives of Congress, \\ tml..

.1, that answering this inquiry requires the Court "to consider the relationship between state and federal laws as they are interpreted and applied, not merely as they are written." 430 'U.S. at:526 (emphasis added). Similarly, in Chicago & NW Transportation Co. v. Kalo . Brick & Tile Co.,_450 U.S. 311 (1981), the Supreme Court, in examining an asserted conflict between ICC railroad-abandonment regulations _and a railroad's duty as a public utility to serve ~ ,under. Iowa _ law, and finding the state law to have been pre-empted, noted_that the relevant focus is on "the nature of the activities which the States have sought to regulate rather than- -on the method of regulation adopted." 450 U.S. at 317-18 (ci-i ~tations omitted). In short, it matters not whether New York and Suffolk County rest their opposition on the legal basis of joyriding statutes,-or state corporation. statutes, or an amorphous police ~ power; and it matters not whether the means chosen consist of refusals to participate in emergency planning or enactment of clearly reverse-preemptive County resolutions, or reliance:on existing state ~or local statutes: if the effect is to frus-trate the full effectuation of a legitimate federal purpose embodied in Congressional legislation, the stbte or local ac- ' tion will be preempted. See also Perez v. Campbell, supra, 402 U.S. at 649'(conflict between Arizona driver financial respon- .sibility statutes and federal bankruptcy act), cited at PG&E,

= c supra,.75.L.Ed.2d at 773, n.28-(" State law may not' frustrate the operation of federal law simply because the state legisla-ture in passing the law had some purpose in mind other than frustration.") Intervenors repeatedly assert that the police powers in issue.here are exceptionally important attributes of govern- ~ ment. However, the relative importance of the state-law powers .in~ issue is not relevant in determining the existence or effect ofifederal' preemption. In yet another recent Supreme Court Fidelity Federal Savings & Loan Ass'n v. de la Cuesta,

case, 458'U.S. 141'(1982), the Court reviewed a conflict between a regulation of the federal Home Loan Bank Board, permitting "due i

on' sale" clauses allow 4.ng S&L's to make the entire amount of a loan immediately due and payable if the property securing the loan is sold or transferred without the S&L's prior written consent to be included in mortgages issued by federal savings and loan associations, and a California statute restricting the enforceability of such clauses to situations where the lender's security interest in a piece of such property was actually im-

paired by the sale.

The Supreme Court, overruling California court decisions, found the state restriction to be overridden 'under traditional preemption principles. Acknowledging that such' property law is "a matter of special concern to the States," 458'U.S. at 153, the Court nevertheless held that tra-ditional preemption principles

j -r i - l are-not inapplicable here simplyz because real' property is a matter of special concern to the States: "The relative importance to -the State of its own law is not material

when therefis a conflict with a valid feder-al'_ law, for the_ Framers of our. Constitution provided that the' federal law must prevail."

,ld.-(citations omitted). Thus the fact that Suffolk County and ~New York. State assert that the police powers at issue are cen-tral to.their value structure makes~no difference with respect (to the applicability _or effect of federal preemption doctrine. Finally,.Intervenors and-the Staff advance Pandora's box

arguments against-LILCO's actually implementing the utility plan; contemplated by the NRC's regulations and the 1980, 1982-83'and 1984-85 NRC Authorization Acts.

.The argument asserts, I .in essence, that there is no way of' limiting the powers that a l utility running amok might arrogate to itself under the protec-Etive umbrella of: federal. preemption. The argument'goes too far. ;What a. utility is empowered to perform is that minimum number of functions, not-already performed lawfully by other organizations as part of-an emergency plan, that are necessary to secure or retain NRC approval of its plan. Those powers are delimited: -they are bounded by the requirements of 10 C.F.R. 5 50.47 and NURE7-0654. They are also uniform nationally; no utility plan performing a utility should need to (or be permit-ted to) exercise any powers pursuant to that plan beyond those exercised by'other utilities and governments working in the partnership envisioned by the NRC's regulations. ,a

w.- 46-cIn short,nif1the-Intervenors' views were to prevail, LILCO ~ -u -willinot be able.to operate the Shoreham plant because of istaSe-law prohibitions, notwithstanding the facts that (1) the

planthad(receivedallnecessaryapprovalson;issuesotherthan-emergency planning, and (2) with respect:to emergency planning, the structure proposed:by LILCO in the Transition' Plan had been found adequate;on the facts. ;The political fiat of Suffolk LCounty;and-NewfYork. State wodld veto the full effect of the

~ ' federal licensing' process, and coul'd-have that effect at any l phase in the~ plant's operating life. It is no remedy to sug- , gest that conflict can.be' avoided by'LILCO's simply not op-e' rating the plant: .that is always th'e case with preemption s' conflicts. LThel fact is that Shoreham is built-an'd, by defini-E tion, approved-and operable. As noted above, this interposi- { tion =against an1 operable plant is a'"different-case" from the ~ g prospective. rule-found not;to:be preempted in PG&E.. PG&E, 77 L~.Ed.2d at 777, n.34. The assertion of state law should be preempted. V. Arguments Regarding the Tenth Amendment Are Not Pertinent to Contentions 1-10 The Intervenors. assert that the Tenth Amendment bars ac-Lceptance of-LILCO's preemption: argument. Opposition of Suffolk County'at 46-57. This argument concludes that "if LILCO's plan ~ is foundito be authorized'by federal-legislation, then there -will be a~significant' impairment of the ability of the State of i e V r,, ,..-,-.4~ ,%,-r-,,--vr...- m.,,,,,, ,,-.-,,,w--,--,, .w,. ,,-y., w. ,,m ,-r,,,- y. .-%,.-y,,,-

V TE 6, L -47 !New York to perfo'rm' traditional functions that are essential to Lits existence ~ as ;the l State.'" But never has.the State or-County -411sted whatithose traditionalLfunctions are,-or how they will be -impaired;27/> iThey have' not pointed to. a single act that LILCOlcontemplates that would compel the State,'the County, or

anyf of 'their : employees to do anything.

A finding that LILCO icNn' implement its plan " impairs" only the State's and County's ~ ~ -attempt to exchange its determination of safety for the NRC. (Id(1sfnot the power;to direct traffic or make protective action ' decisions that the State.and County are complaining about having; usurped; the LILCO Plan plainly-states that th'ey can ex-

ercisefthose powersLwhenever they want.

It is rather the power i. .toimake:the decision 28/(whether the plant,should operate. This i ~ '27/ For example, the-County'and.the State assert that "they ' have the right to decide howl the police power (including-its l LownLpolice forces) shall be employed in the event of a disaster P' lpotentially1affecting thousands (or hundreds of thousands) of ~ its.' citizens." 'Butino one'is. suggesting 1that.the Nuclear Regu- -latory Commission order'the State or.the~ County to employ its police power in any way. That is doing emergency planning.

All LILCO'is,suggestingfis that-the State;and the County cannot

r'egulate emergency planning,1which is precisely what they are

.trying to do1whenLthey take State-statutes and attempt to apply ithem toia' utility so that the utility ~is unable to complete emergency planning'where the State and the County have refused Lon grounds of safety to'doEso. That is a very different notion 1 -from the one which the County'and the State repeatedly address (in:their:brief regarding the ability of the NRC to force the ! County:and:the State to plan ~and to respond to an' emergency. 1 128/ TheTIntervenors tip their hand on page 46 of their brief where;itcsays that a~ decision to authorize the utility.to act- ,in.the: face of and "in opposition'to considered state deci-lsions"'is a far more intrusive interference with state preroga-tives-than any of~the approaches Congress so far clearly re- ,jected. SC/NYS Opposition at 46.

r 1,. -isiwhat they_mean by their " police powers. "29/ What are'at issuefhere are essentially two things that ~ LILCO. plans.to do: .(1) the_ warning function and (2) the facilitating of traffic. As to'the first,-LILCO proposes to assess' the-damage at its own facility, assess what affect that -wi11 have on the neighbors of the facility, compare the pre- ~ dicted offsite doses'to federal guidelines, and use a radio station, with which LILCO has a contract, to warn people and advise them what-they should do to protect themselves. The second function involves guiding traffic, providing gasoline to ' stalled vehicles, removing obstacles from the roadi and_so forth. The first of these: functions is essential to an emer-I gency plan; the second can be eliminated, if necessary, and NRC regulations still'be met.

In neither case is any force used; people do not have to evacuate when LILCO-advises them to, and no one will be put in jail or forced out at gunpoint if he.does not obey.

If a mo- ^ torist wants to'go in a different direction from that indicated by the LILCO traffic guide, tne LILCO traffic guide cannot 29/ By the Tenth Amendment, the states retain all powers "not delegated _to the United States. or to the people." U.S. Const.-Amend. X. These broadly encompass the power "to pre-scribe regulations to promote the health, peace, morals, educa-c tion, and good order of the people, and to legislate so as to increase the industries of the State, develop,its resources and add to its wealth and prosperity." Barbier v. Connolly, 113 -U.S. 27, 31 (1885). These powers are what are known as the police powers"'of the state.

T' .- arrest him or force him-to comply, nor is the traffic guide in-structed.to attempt to. No. government facilities are taken over; the radio stations used to broadcast LILCO's advice are privately owned and have agreed to let LILCO use their facili-ties. No' government officials will be disobeyed by any LILCO employee. There are no situations in which an elected official orders one thing and a LILCO employee orders another. This last point is crucial. In the case of both the func-tions described above, the LILCO Transition Plan expressly pro- .vides that LILCO's actions will be subordinated to those of the authorities, if the authorities choose to act. For example, the Plan calls for LILCO traffic guides to direct traffic only 1 until.the police arrive; when the police arrive, if they do, the traffic guides are to stay to assist them, at the po-licemen's direction. Similarly, the Plan provides that the decisionmaking function is to be handed over to the authorities as soon as the authorities ask for it. The notion of " usurping the power" of the authorities suggests that LILCO will somehow do something contrary to the orders of the authorities, but in fact LILCO is merely filling a void. Suffolk County and New York State make two basic arguments concerning the Tenth Amendment. Both of them, and the authori-ty used to support them, are ill-taken. Intervenors' first argument is to the effect that the fed-eral government cannot invest LILCO with powers to perform acts ..m- -.. +

7 l. - , 1 ' which, as anmatter;of its corporate charter, it does not affir- - matively possess -- acts that1Intervenors loosely denominate _as n " police-powers."'.SC/NYS-Opposition at 46-47.30/ Understood in h, -'this fashion, Intervenors are arguing basically that LILCO lacks, ras a1 matter.ofiits' basic corporate charter, the power . i cthrough,its agents, employees _and contractors either to take

steps to. notify

the ' affected general public of. a potentially hazardous situation at:a plant.which itois-operating pursuant to:its' duties as a public utility, or to assist the public in self'-protection.

A federal statute or. license, the argument '.goes,Jcannot empower a corporation to perform acts which are > ultra vires, i'. e., beyond its powers as a matter of state law. ~ i The argument has two; weaknesses. First, it is totally _ -nonspecific about the powers,-actions and other forms of con-

duct-which it implicitly asserts LILCO lacks the-authority to perform'orL to' contract for_under State law:

there is no analy- . sis n of-LILCO's-charter or: by-laws, nor of New York's public utility statutes, sufficientito establish even the predicate of the argument. Merely characterizing unspecified acts as for-bidden exercises of an amorphous " police _pover" does not prove 'that the acts are ultra vires. Without that demonstration, the 4 Unfortunately, :as indicated above, Intervenors fail to set ~ ~ '30/ forth with any specificity' exactly what acts are contemplated by;them as being within the-rubric of the " police powers," even though LILCO has forth its intentions with great specificity-in .the Transition ~ Plan. 4 9 w n m- ---a n, m

---

n-

.-e,wr-w wm e -re-v. p wm ,,.~<wn,-w.,,e--g m

i. 51-H argument fails at the outset. Second, even if'Intervenors had adequately demonstrated the absence of affirmative grants of power to LILCO to perform the functions'in question, their ar-Jgument is not a Tenth Amendment argument at all, or even a federal-law argument at all, but-one purely of state law best suited' for: resolution by New York State courts. In fact, In- 'tervenors havelmade this-argument at length in their-reply to LILCO's pending motion to dismiss their New York State suits. New York and-Suffolk County should follow the same advice on .this~ issue as-they have-urged on this Board with respect to other-state-law aspects of the~" legal authority" contentions: ~~~ .they-should present their arguments on this purely state-law I ' issue toLthe New York State courts, not this Board. Intervenors' second argument-is not that LILCO's per-forming the various functions and actions contemplated by the Transition Plan is ultra vires of LILCO's corporate charter, -but that performance of such acts and functions by LILCO pursu-1 ant to preemptive NRC requirements involves such an intrusion into the-functioning of New York State's and Suffolk County's government as to be prohibited by the Tenth Amendment's reser- -vation to the State, or to the people, of those powers not com-mitted to the federal government. Intervenors' presentation of this argument fundamentally misapprehends the Supreme Court's construction of the Tenth Amendment. Not since the New Deal, in the late 1930's, has the 7- -w-i g-- w w-- y g- .vp a ,w.m y 4..,-.,e7,.%., __. p 7

l

e

's 1 H Tenth Amendment been routinely relied on by the Supreme Court to impose substantial limitations on Congress' exercise of its Commerce Clause powers'through legislation. By 1940, the Court had' reduced the Tenth Amendment to a mere " truism" of little - practical importance, concluding that "there is nothing in its adoption to suggest that it was more than declaratory of the relationship-between the national.and state governments." U.S.

v. Darby, 312 U.S.

100,.123-24 (1941). Intervenors' almost total' reliance on cases predating U.S.

v. Darby places their arguments at odds with the modern trends in use of the Tenth Amendment.

The~only. modern case relied on by Intervenors -- National i ' League of Cities v.fUsery, 426 U.S. 833 (1976) -- is not appo-site. In Usery, a closely divided Court (5-4, 1 concurrence

and 2 dissents)-found that extension of-the wage and hour pro-visions of the federal Fair Labor Standards Act to cover em-ployees.of state and local governments would violate the Tenth Amendment.

The Court subjected its decision in Usery to a " careful review" in Hodel v. Virginia Surface Mining and Reclamation - Ass'n, 452 U.S. 264, 286 (1981). As the Court indicated'there, the opportunity for.a Tenth Amendment claim arises only when Congress has acted pursuant to one of its powers under the Con-stitution to preempt an act of state governmant.31/ However, 31/. When acting pursuant to the Commerce Clause, as with he Surface Mining Act in Hodel and with the Atomic Energy Act, (footnote continued)

.. not.every preemptive act,.by any means, raises potential Tenth 2 Amendment questions under National League of Cities. As the Court stated: -It should be apparent from this discus- .sion that-in order to succeed, a claim that -congressional commerce power legislation is invalid under the reasoning of National League of Cities must satisfy each of three requirements. First, there must be a showing that the challenged statute regu-lates the " States as States."

Second, the federal regulation must address matters that are Indisputably " attribute (s) of state 3

sovereignty." . And third, it must be apparent that the States' compliance with the federal law would directly impair their . ability "to structure integral operations in -areas of traditional governmental.func-tions." Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 i U.S. at 258 (citations omitted). Even then, not every federal action meeting these three tests violates the Tenth Amendment. The nature of the federal interest asserted may be such as to justify state submission. 452 U.'S. at 258 n.29. Applying these tests, the Supreme Court in Hodel found that challenged provisions of the Surface Mining Act of 1977, .which regulated the conduct of surface mining by private (footnote continued) Congress' power is " plenary" and the only requirement is that there be a " rational" relationship between Congress' action and

interstate commerce.

452 U.S. at 276-77. 8

z

, e Doperators:on." steep slopes," did not-violate.the Tenth Amend- ~ mentEasLinterpreted in Usery. In reaching-this conclusion, the. i iCourt' rejected ~the argument that,-although the Act ultimately regulated the conduct of private _ entities, it.impermissibly in- .truded into the' State'sffunctions of regulating. land use, con-trol of the' state's economy,'and allocation of state tax re-

sources..452 U.S.

at 285. The Court considered that-its only reviewing-function was to determine that the means selected by -Congress boxe a national relationship to-the goal of regulating c ainterstatetcommerce,- despite their asserted intrusion into Tareasl governed by the " police power." l452 U.S. at 291. The Court! continued: I .This conclusion' applies regardless of whetherftheLfederal legislation displaces ' laws enacted under the. Stat'es' " police pow- ~ers."' The Court long ago rejected the-sug-gestion-that. Congress invades areas reserved to the; States by the Tenth. Amendment-simply- .because it' exercises its' authority under 'the Commerce Clause in a. manner-that displaces the' States'-exercise of their. police powers. [ citations omitted;) This court has upheld 1 as constitutional any number of federal statutes enacted under the commerce power.

thatJpre-empt particular exercises of state police : power.

[ citations-omitted.]. It would therefore be radical departure from long-established precedent for this Court to -hold that the Tenth' Amendment' prohibits Con- ~ .gress from_ displacing state police power laws / regulating private activity. Nothing in National League of Cities compels or even hints at such a. departure. ~ '~452:U.S; at'291-92. m L

.,7 The-Court also-found it "significant" that one of the re-1spondents, the Commonwealth of Virginia, is " simply another regulator of surface coal mining whose regulatory program has ~ been displaced or preempted by federal law. [T]here are no Tenth Amendment. concerns in such situations." 452 U.S. at 291 n.31.

The articulation of National League of Cities v. Usery in Hodel-has been followed-consistently in subsequent Supreme

. Court cases involving Tenth Amendment challenges. E.g., United Transportation Union v. Long Island Railroad Company, 102 S.Ct. 1349, 1353 (1982); Federal Energy Regulatory Commission v. Mississippi, 102 S.Ct. 2126 (1982); Equal I. Employment Opportunity Commission v. Wyoming, 103 S.Ct. 1054, i 1060,62 (1982). Equally noteworthy, in each of these cases the ~ Supreme-Court has rejected Tenth Amendment claims premised on National League of Cities. In the FERC case,.the Supreme Court upheld various provi-sions of the Public Utility Regulatory Policies Act (PURPA), -requiring ~ states to consider specified rate-making standards and to enforce standards promulgated by FERC, imposing various procedures on' state rate-making commissions and authorizing FERC to exempt:certain facilities from state regulation. The Supreme-Court upheld these aspects of PURPA even though they arguably "coerc[e] the Statec into assuming a regulatory role by affecting their freedom to make decisions in areas of c 6-, <m--- .w-, ,or m--- -, y -, - - -,

o 9 4. + , ; 2.. 4 ~ l' ~ - .t ' integral governmentalffunct' ions.'"- 102:S.Ct. 2126, 2141, citingIHodel,isupra. JTh'e Court-harmonized its holdings in I 1 Nationa14 League of Citiestand Hodelias follows: i I fe .[I]ndividual businesses necessarily [are]- usubjectjto thefdual sovereignty of the. gov- 'ernment of'thel Nation andthe State in which 4 '.they1resideL"' National. League of Cities v. U-LUsery,=:426 U.S.,1at.845,-96 S.Ct., at 2471; iwhen: regulations-promulgated by the sover-- meigns conflict? federal law'necessarily con-Etrols.. This~is true though Congress exer-Ecises11ts) authority."in a manner that . displaces 1the States' exercise of their.po-lice = powers;"iHodel v. Virginia-Surface, Min. '&:Recl.' Assn.,.452 U.S.,-at 291,,101 S.Ct.,

at 2367,.

~ -From what has been said-it is' clear.that permitting-LILCO, ~ fin' fulfillment'of NRC licensing conditions, to' conduct emergen-l cy1 planning when.New York State and Suffolk County' refuse to do - so does'.no violenceoinJtheJ10th Amendment as articulated in L-iA Hodel'. -At1the: outset, New York 1 State:and Suffolk County are I inot being regulated atfall,'much less as states; it is not.they EbutLLILCO.that:is being: regulated. LAs with the states in Hodel and(FERC,Jthey have a-choice:of participating in partnership on (emergency planning or'not; all they'cannot do is exalt their " poli'ce'po'wers" over'a legitimate federal purpose.

Moreover,

'whilercont'roloof' emergency functions may be an-attribute of st' ate sovereignty, so clearly'are land use planning (Hodel) and ~ 4

utilityfrate making (FERC); Congress' activity there was sus-

.tained. Finally, participating in; emergency planning (or mere-j

1yLnot' interfering with-the efforts of another willing party to g

g ..pe.'f my.--ggg-.Jare-e pgyew gi & (-W 99d 4-m, y w ww. s e.+ 9 wv ty e.q sogpg..wewy-y- .e y4-. g--g g.- ey - y pwmmye-99yp ye.g. g. gwq.y p eg-wWe

.e -.. perfdrm'it)Edoes not fundamentally impair New York's or Suffolk County's ability to structure' integral' operations in areas of (traditional l state functioning unless radiological emergency planning is a " traditional state function," and unless the State and the County are legally entitled to interpose their exercise of the police power over the federally required-goal. of emergency planning. However, radiological emergency plan-ning is totally a function of the relatively recent, and feder- -ally supervised, nuclear industry; and in the Tenth Amendment -area the states and localities have, by definition, already been preempted. In any event, federal overriding of state po-lice powers in the exercise of a valid Congressional purpose does'not violate the Tenth Amendment'. The Intervenor's Tenth Amendment arguments, therefore, are meritless. VI. The State and County _ould Respond in a Real Emergency W LILCO's fourth argument'is a factual one, based on the uncontroverted evidence of record: since it is clear as a -matter of fact that both State and local governments would re-spond-in a real emergency, there could not possibly be any lack of " legal authority." To'put it another-way, " legal authority" can only be a problem if someone with exclusive authority re-fuses to act; since in a real emergency the State, local, and

federal [ governments (as well as LILCO) would all respond, there would 'be ;no : gap.inL legal authority..Since everybody with au-cthority would show up,. the Board need not decide ~ hypothetical ~ issues of who has what authority under state law. iThe. basis of LILCO's argument is simply what everybody_ knows1to-be true: that if a real-emergency were to occur, eve-ryone would try to help, and everyone would try to do what was best forfthe:public health and safety; the last thing anyone swould. worry.about would be " legal authority." A real-life re-sp'onse woul'd be~a cooperative effort, not an adversary process. ~ 'This is so-' clear that-LILCO would ask the Board to-take offi-cial notice of it, were there not already a solid evidentiary basis-for it in the record. For example, LILCO's witnesses testified at length about the " emergency consensus" and the . spirit of cooperation that prevails in communitywide disasters.

See, e.g.,

Cordaro et al., ff. Tr.:831, at 10-20. The Intervenors have attempted to muddy the. waters with their eleventh-hour affidavits of Messrs. Palomino and Roberts, and, for the reasons stated below,32/ the Board should ignore thesefaffidavits in reaching-its decision. But even if the 32/ 'One such reason is that the affidavits are an untimely ef-fort'to present evidence that is not subject to cross-examination._ In addition, Inspector Roberts appears to be giv-ing legal opinions he is unqualified to give, and it is . improper for Mr. Palomino, a counsel of record in this proceed-ing, to be appearing now in the role of a witness.

- t affidavits.are taken into account, LILCO is entitled to summary disposition on'the ground that." legal authority" contentions raise a hypothetical problem that' can never occur in real life. Notwithstanding the affidavits, the Board can make the follow-inq findings: 1.

First, the State and County would in fact' respond.

-There is. ample evidence in the record that this is true and no evidence ~to the contrary.33/ ' The Intervenors, while they can- .not deny that they will respond, argue that there is inadequate evidence that it isftrue. This argument is patently wrong. First, there is the Governor's public statement that "of course, if the plant were to be operated and a misadventure-33/ The argument (Intervenors' Opposition at 93 ) that Suffolk County has forbidden itself to implement an emergency plan by County Resolution 111-1983 cannot be taken seriously..Appar-ently Inspector Roberts interprets " implement" to include car-rying out a plan in a real emergency as well as training peo-ple, writing procedures, and otherwise preparing for an -emergencyfin advance. The Board first has to accept this im-plied interpretation of the Resolution, which is not stated as such either in the Intervenors' Opposition (see p.

93) or in Inspector Roberts' affidavit.

(All.these documents do is re-cite the. language of the Resolution.) The Board must then de-cide as.a fact that-the Resolution.would in a real emergency ' prevent the County from doing something that needs to be done; the.Intervenors do not specify what this might be. -Morever, LILCO submitted testimony addressing directly the question whether County' Resolution 111-1983 would as a matter of fact prevent County personnel from responding. Cordaro et al., ff. Tr. 831, at 29-30. This was struck at the County's request. The Intervenors cannot now be permitted to establish by affidavit a point that they earlier prevented LILCO from ad-dressing.

I were to occur,Iboth the State and County would help to the ex-tent possible. 1k) ~one suggests otherwise." Cordaro, et al., 'ff. Tr. 13,899, at 7. The Intervenors argue that " press re-leases areinot ' evidence.~ ' " - Intervenors' Opposition at 91. But that portion of the press release is evidence;34/ it is in the record, and the County and State had the opportunity to cross-examine-the LILCO witnesses who offered it. See Tr. 13,900-05.35/ In addition, as noted above, there is 9 jj3 i/ 3 The suggestion by both the Intervenors and the NRC Staff that the. Governor's-statement may not be relied on as "evi- 'dence" is clearly wrong. If what these parties are trying to say is that the Governor's statement is hearsay, they are cor-rect; and, as they well know,. hearsay is admissible in NRC pro-ceedings. If what they are trying to say is that it is not reliable. hearsay, since the' Governor did not testify, the an- -swers are so obvious they hardly need to be stated:

first, this hearsay is reliable because no one believes the State and

. local government.would fail to respond if people were really at ri sk;.the hearsay simply states the obvious. -See Senator Simpson's remarks set out.in LILCO's Motion.at 24. Second,-the hearsay is reliable because presumably the Governor of the. ' State of New York does not lightly release official statements. Third, the reason hearsay is relied on is that the parties in

control of the facts have kept them from the Board; the Inter-venors' presented.no evidence on Contention 92, and they should

.not be allowed'to use this failure to their advantage. 35/ When the County began to cross-examine about that press release-in'an attempt to show that the quotation was taken out of context, LILCO suggested that the County simply place into evidence the entire press release. Tr. 13,902. The County de-clined to do so and did not ask any further questions. Tr. 13,902-03. The State asked no questions. Tr. 13,905. The County and the State now seek to put the press release into ev-idence as Attachment D to their response and to present testi-mony,. in the. form of an affidavit by Mr. Palomino, placing the release "in context." Intervenors' Opposition at 92. This is an impermissible attempt to enter additional evidence well past (footnote continued)

y s. . o; ' . substantial evidence about the " emergency consensus." 2. 'Second, the resources for an adequate emergency ! response:(developed under the LILCO plan)' will be available to the State'and-County should they choose to use them. For exam-

ple, the radio; stations will be ready-to broadcast the EBS mes-sages,-the tone alerts will be installed, buses and drivers will be ready to go, there will be traffic guides at major in--

tersections to' help the police if the police show up, and so ~This planning-basis is the essence of the LILCO Transition on. Plan; the e'vidence is that it could incorporate a State and

County-response should that' response be forthcoming.

3. Third, the State'and County will try to do what is best for'the public health and safety at the time. No one is denying ~this, but if someone were, there is ample evidence in

the record to refute him.

It is this third finding that the .Intervenors' affidavits attack, but only by implication and in-nuendo. The Intervenors' argument boils down to the fact that .(footnote continued) .the time when evidence on Contention 92 was due, without a showing of good cause and without giving LILCO the opportunity to cross-examine. The Board should therefore place no. reliance whatsoever on the affidavit. .Of course, affidavits are ordinarily appropriate in re- ~ sponse to a motion for-summary disposition, see 10 C.F.R. $ 2.749(a) (1984). But in the instant case the Intervenors are .using affidavits to make a record that they declined to make whenethey had the opportunity. t

e: -aa '. t> b m-n they control the~ evidence and that they refuse to present it. They.: admit-thay-will respond,36/ but they' refuse to say exactly how. 1Therefore, they.say, LILCO has no evidence to carry its Lburden of' proof. sThe'Intervenors' argument fails. All~that is required is a finding'that.the Intervenors-would respond in a <*esponsible ~ manner, Land that' finding 'is justified either as a presumption 'or as a matter.of evidence. It is justified as a presumption ~ 'for..two reasons. -First; "[t]here'is a presumption that state . officials are carrying out their duties in a proper and lawful manner.": : Duke: Power Co. (Catawba Nuclear Station, Units 1 & '2),'LBP-84-37, 20 NRC: slip op..at 54 (Sept. 18, 1984). Second, when a party has relevant evidence within his control -and fails to produce it, the inference arises that the evidence iis unfavorable to him. Public Service Co. of New Hampshire -(Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 478,

rev'd'as to other matters, CLI-78-14, 7 NRC 952 (1978).

Moreover, the finding is supported by evidence, despite the Intervenors' best efforts. _The portions of the State emer-gency plans _inHthe record, Cordaro and Weismantle, ff. Tr. 13,899,.Att. 10,. clearly manifest the State's intent to respond to all emergencies in the State, including radiological - 36/ - They qualify everything. with "arguendo" and " allegedly," of-course,.but they do not deny that they would try to protect the public in a:real emergency. ~ e s

l t 4 , emergencies and including an emergency at Shoreham.37/ So does . Article 2-B of New' York-State Executive Law. Neitherithe Intervenors' testimony nor the Roberts and Palomino affidavits refute the. finding-that LILCO seeks. Al- "though the~ affidavits are meant to imply that the State and Llocal-response would be ill-prepared-and to imply that State and local officials would stubbornly refuse to call on avail-able resources if-LILCO provided them, LILCO does not believe the affidavits say these things. No one states, for example, that the Governor would-refuse to make use of radio stations to advise the publicl simply because it was LILCO that had made the -arrangements. And there is no question of " usurping the police i power"38/ if the Governor makes the protective action decision, 11/- Also, the testimony about the " emergency consensus" sup-ports this finding. Of course, the Intervenors carefully re-trained from presenting as witnesses any of their officials 'with emergency planning responsibility, but the school adminis-trators they presented all said they would be concerned only '~ with the students' health and safety. And'no one testified for the Intervonors that in an emergency he would put politics . ahead of safety, orndo less than his best, or sulk on the side-lines.when people were at risk. 38/. Intervenors' argument that state law prohibits the Gover-nor from investing LERO with the State's police powers, Inter- .venors' Opposition at 98, is beside the point. Even if '(hypothetically) no state or local government personnel were to respond, LILCO would not propose to exercise " police pow 2rs." 'And LILCO certainly would not do so if the governments wsre in-volved in the response. The Intervenors' argument to the con-trary. rests on the implicit, unfounded theory, which pervades the Intervenors' Opposition, that it is unthinkable that gov-ernment officials and LILCO would cooperate in an emergency re-(footnote continued)

a N i w - > notwithstanding that lun may have taken into account information 'provided'by'the licensee, as is done under every other emergen-cy-~ plan in the country. In this. regard, the' affidavits represent three " facts" ~ 'that deserve mention. First, they say-that the police would not " rely" on LILCO's traffic guides. Roberts affidavit at 4,

5. 'Second, they say the police and others would be untrained.

'Ij%. at 2. Third, they say that the State has put the RECS telephone in " storage." Palomino affidavit at 6. But the po-Elice do not have to." rely" on LILCO traffic guides (whatever that means); they need only do what is best under the circum-stances at the time to protect the public,. and that would in-i clude at least listening to the guides and perhaps using them to communicate with command and control or to do whatever else might be necessary-at the time. As for training,39/ the LERO '(footnote continued) sponse.. The Intervenors see.the response as either an exclu-sive State-County effort,~in.which case the State and County would be untrained and unprepared, or an exclusive LILCO ef-fort, in which LILCO would (Intervenors allege) lack the neces-sary police powers. The Intervenors miss the point; in a real emergency response,'LILCO would supply the planning and trained personnel, and the governments would supply the police power. Unless the Intervenors can produce a witness willing to swear that local and state officials would refuse to use available resources even if that meant harming the public, the record cannot support the Intervenors' argument. _39/ The Intervenors have resolutely refused to say anything about what they will do if Shoreham begins to operate. The (footnote continued)

i -, people 1are trained and available to advise the untrained gov-ernmental personnel. As to communication with the State, the RECS phone can be'taken_out of " storage," and there are other means of communication even if it is not. See Tr. 13,737 (Cordaro). In short, there is ample basis for the Board to find that 'the State and County will make use of the LILCO pl'anning basis if doing so at.the time is the best thing for the public health and safety. If some portion of the LILCO planning is not used at -the time of a real emergency, it will only be because the State decides at that time that in its judgment some other mea-sure will better protect people. This is the case, of course, i with all emergency plans. And it is the basis of LILCO's mo-tion for' summary disposition: that there is a planning basis that meets NRC requirements and that it will be used in a real emergency except insofar as judgments are made at the time that better protective measures are available. _(footnote continued) Board would be justified in finding that, if Shoreham operates, the State and County can be expected to join the planning ef-fort. This finding can be based on the Intervenors' insistence that they want to protect the public and the undisputed fact that, if a plant is to operate, it is safer with an emergency plan that meets NRC regulations than without one. This find-ing, however, is not necessary to grant LILCO's motion for sum-mary. disposition.

s r ^ 7 c ', 4 x f.. ' 'd Y ,d L. -i, _VII. .The Existing-t 774 ~ TRecord-Supports the'" Immateriality" ,g, ' Defense : to Contentions 1-4, 9,' and 10 m7P LLILCO's fifth and last argument, that most of_the-legal-1

authorityLeontentions challenge functions that are not required

~

by NRC regul tions,'is-attacked by)the'Intervenors.on two groun'ds.40/i First, theydargue that traffic ~ control etc. is re-

~ " quired as a matter of: law..Intervenors'. Opposition'at 101-05.. Second,Ethe.Intervenors.. claim they need more hearings to-ad- ' dress lthe issue.. Ijg. 106-07..The NRC Staff agrees that. fur- . ther hearings.are' necessary.41/.NRC Staff's Answer at 27. Further~ hearings ~are not-necessary. In the first place, .the Intervenors have agreed time 1and again, in both this pro- "ceeding and, the-~.related -lawsuits, that'further evidentiary E M -hearings are not: required. -And, contrary to.what.the NRC Staff supposes',cthel parties have long been.-'on notice of LILCO's /

'40/TLThe additional argument,xin:Intervenors' Opposition sec-tions?IV.B,.D, zand E1(at 105 06, 108-09,'and 110-18), that the-Board:cannot decide'the. issues.without reference to the other-issues :and evidence in this proceeding,' is not worth' extended-discussion. _LILCO has no objection:to the Board's deciding the summary disposition motion along with'the other issues and resolving them all in the Partial Initial Decision.

fil/ ;One can react only with exasperation to the NRC Staff's

suggestion

that after years of emergency planning proceedings LILCO;should now: wait for a state court decision, tailor a new plan consistent with that decision, and start all over.

This suggestion is, to-say the least, at odds with'NRC policy of providing reasonably' prompt decisions. See Statement of Policy. t son: Conduct-of Licensing Proceedings, CLI-81-8, 46 Fed. Reg. .28,533 (1981). s I U'

F! ~ y; .- u F position.that Contentions 1-10 can best be decided in the con-O text of the-evidentiary record. See Tr. 3664. Also, the-par-b h ties have long been on notice that an " uncontrolled" evacuation ~ was one of the issues in this proceeding. LILCO's counsel said so back-in January: "The reasoning. . changes in no way the . proposition that'if, even'without the kinds of measures that LILCO will be able to implement, using matters which the State disputes such as traffic guides and signs and so forth, we can still conduct a proper emergency plan. We ought to get,a li-cense." Tr. 3665.42/ The County has already presented testi- -mony on traffic,fincluding specific discussions of uncontrolled evacuation, both in its direct case and through cross-i examination of LILCO witnesses. See Piggozzi, ff. Tr. 2909, at 37-39; Tr.-2069-70 (Weismantle), Tr. 2660-63 (Lieberman); see I also Piggozzi,.ff. Tr. 2909, at 37-39, Cordaro et al. (Conten-tion 65), ff. Tr. 2337, at 41-47, 61-62; Cordaro et al. (Con-tention 27), ff. Tr. 7083, at 7-8).43/ Indeed, the r 42/ See also Tr. 3664, 13,822 ("The only circumstance under 'which an occasion other than simply issuing a license or denying a license on the basis of the record presently before ~ the Board can arise will be the case if it is determined that the plan is unlawful as a matter of New York State law in ways that absolutely ~ prevent its operation, such as the County's al-leged command and control. In a number of cases, for instance, the traffic areas, there are fallbacks which LILCO can imple- ' ment"). 43/ See also,'e.g., Tr'.- 12,818 (Keller) (no requirement that gasoline be supplied). I: L.

~ y ;

-ij

'3 .. e ; v s ~ a n -LIntervenors ' twin. arguments'(1) that they need an-opportunity lto;present evidencefand1(2) thatLtheir. witnesses presented evi - 1dence to refute LILCO's; position lare1. inconsistent. Together (theyuamount/to?theLargument'that the Intervenors want a second y opportunityf to :make Ltheir: case. LTho Intervenors? cite no authority that traffic control, u pathfinder signs, etc. are required as a matter of: law, only .' their own' unsupported' lack of knowledge of other plans where ~ ['# traffic'controllis not used.444 Intervenors' Opposition at 103-04.:.Moreover,:it.is' clear that there-is no particular w_. evacuation time required by,NRC regulations, and the record re- 'flects that'an " uncontrolled evacuation" at Shoreham results in

reasonable, estimated times; more important, reasonably y

accurateltime; estimates for an' uncontrolled evacuation have Ibeen' prepared and. defended in this: proceeding. If the State of TNew3 York. decides 1that it' prefers la-slower, uncontrolled evacua-Etion and seeks.to achieve that result through its laws, and if the NRCl decides that such a move is.not preempted, the.n so be it. The NRC requirement of accurate time estimates is still ~ ' ~ 44/ :This'is in stark contrast to.their longstanding position 5that;it is impermissible for-LILCO to present evidence of other plans: "In this proceeding, whether or.not other people might have'done-a better job with an emergency plan than LILCO has y-y under entirely different~ circumstances is-just not relevant." 'Tr.^.1342 (Letsche). 'See.also Suffolk County Motion'to Strike ' Portions'of'LILCO'~s Group II-A Testimony'at 11-13 (March 9, 1984);-Suffolk County Motion to Strike Portions of LILCO's EGroup II-B. Testimony at-11-12'(March 28, 1984); Tr.'8301-15 .(Albertin, Acquario, Knighton). i.

1. -

7 met. The State cannot have:it both ways;.if a traffic control-

plan is required by NRC regulations, then State law creates a direct conflict and is preempted;_ if traffic control is not re-quired,.then it can be dispensed with and, while this'is unfor-

'tunate and results in a less-than-optimal plan, it does not vi-olate NRC regulations. VIII. Conclusion For the reasons stated above and in LILCO's Motion for Summary Disposition, summary disposition of Contentions 1-10 in LILCO's favor should be granted. Respecfully submitted, LONG ISLAND LIGHTING COMPANY N ' Donald P. Irwin ! ames N. Christman P J Kathy E. B. McCleskey Lee B. Zeugin Hunton'& Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATE: October 15, 1984

Pt i UNITED STATES DISTRICT COURT 'r 2 ' EASTERN DISTRICT OF NEW YORK 3- -________________________________________x COUNTY OF SUFFOLK, 4 Plaintiff, -against-- CV 84 1405 .5 LONG ISLAND LIGHTING COMPANY, Defendant. 6-

---

x MARIO CUOMO, 7:

Plaintiff, -against-8 LONG ISLAND LIGHTING COMPANY, Defendant. 9'

---

x 10 I1

? 12 United States Courthouse Uniondale, Long Island,__ -13 New York 14 May 25, 1904 9:00 A.M. 15 16 17 18 -19 . B E F O' R E : 20 HONORABLE FRANK X. ALTIMARI, U.S.D.J. 21 22 23 24 OWEN WICKER OFFICIAL COURT REPORTER 25 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST 3RQQKLYN NEW Y3RK 11208 ..,,t

}

2 l' -A P P E'A R A-N C E S: 2- { ~ 3 ....KIRKPATRICK, LOCKHART, JOHNSON & HUTCHISON, ESQS., Attorneys for The County of Suffolk 4 1500 Oliver Building Pittsburgh,.Pennsylva'nl' 15222' a '5' ,;.y e-ye - BY:. DAVID A. BROWNLEE, ESQ'._, of Counsel 6 - - - --- -...JCENNETH. M., ARGENTIERI,,, ESQ.,,9 f Counsel

.p y, c-......

~ 7 KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS, ESQS., Attorneys for-The County of Suffolk 8 /m I31.. 1900 M Street, N. li. Washington, D.C. 20036 9 BY: LAWRENCE COE LANPHER, ESQ., of Counsel 10-11 . FABIAN PALOMINO, ESQ., Attorney for The State of New York 12 i 13 HUNTON & WILLIAMS, ESQS., Attorneys for Defendant LILCO 707 East Main Street 34 P. O. Box 1535 15 Richmond, Virginia 23212 16 BY: K. DENNIS SISK, ESQ., of Counsel JAMES E. FARNHAM, ESQ., of Counsel 37 DONALD P. IRNIN, ESQ., of Counsel 18 ROSALIND M..GORDON, Senior. Attorney 19 L ng Isl.'nd Lighting Company 250 Old Country Road Mineola, New York 11501 21 22 -23 24 ~ 25 EASTERN DISTRICT COURT REPORTERS UNITED STATES Dt3TRICT COUILT , 223 CADMAN PLAZA EAST a BRQQKLYN. NEW YORK 18201

3 1 THE COURT: On'ths motion. 2 MR. BROWNLEE: I think the motion i's ours, 3 your. Honor. 4 My name is David Brownlee. I'm representing 5

the County in the case of Suffolk County versus F'h c....,..

m..-

unu, LILCO which was originally filed in'the State Court, 6

7 and it's before you on LILCO's removal petition and 2

~-

M v.:.s ' our motion to remand to the State Court. 8 9 I'd'like to make a, couple of points briefly. b 6 LILCO has said that our motion for remand rests 10 almost exclusively on the Supreme Court's decision 33 f i thi Franchise. Tax Case. And frankly, I've i always operated under the assumption where there 13 was a 9-nothing Supreme Court opinion.that had been issued within the last year which sguarely controlled a case more difficult than my own -- I'donit need to go too much beyond that. Franchise Tax clearly holds that in a removal situation, even though federal preemption is asserted as a defense, and indeed even though the federal 20 preemption question is the only issue before the Court,' remand is, required in an action that was initiated as a State declaratory judgment action. 23 In Franchise Tax, there was no question as to 24 the terms or provisions of State Law. There was no 25 EASTERN DISTRICT COURT REPORTERS UNITED STATES D!$TRICT COURT 223 CADMAN PuZA EAST BROOKLYN. NEW YORK 11201

p--- g 4 j quCOtion thOt tha dOfendants had not adhered to tha 1 2 - State' Law; had not complied with the State ta.t provision there in question. 3 knthiscase, there clearly.is a question of 4 5 -State. Law on which.the parties. disagree. 6 L1: ^ LILCO has asserted that it is - c it:would be s 7 complying with, it has power-under State Law to 8 carry out its emergency plan. We have asserted that it-does'not.,, 10 There clearly is a State Law issue upon which this case is founded. That State Law issue is quite 33 simply'whether a private corporation may exercise i _13 --the kinds of powers that may' perform the sorts of .( k 14 functions which LILCO purports to be able to perform l' in carrying out its emergency plan. =We_have indicated in our reply brief that the factthatLILCd'sauthorityisaStateLawissue is something which has been conceded, recognized by virtually all parties to this matter, and indeed the federal authorities who are looking at LILCO's 20 - emergency plan have expressly requested, have expressly stated, it is a State Law issue, and 22 indeed had chartered the County in January for not 23 having sought a State Court determination of that 24 ~ issue. 25 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT ColmT 223 CADMAN PLAZA EAST BRQOKLYN. NEW YORK I1201

y 5 -g 1.

LILCO'G

filings bnforo the NRC concado that

.2-there is a' State Law-issue. They r-nneede' that-the j- ' ~ .3 Federal Law _ question-of preemotion which thev asse'rt 4-would'never be~ reached'if~indeed the State Law issue E ' sere, resolved inatheir behalf. ~5 6'

They clearly say if it'were to be determined 4

7 that.LILCO has the authority to carry out these '8 functions, th'e federal preemption' question which W-they' assert as a defense would never be reached. 9 .Under those circumstances -- 10 THECOURTI Does this preemption really );. permeate-the air here, though? y. i ~ Assuming your complaint, as it.is prepared g ' {' -),. in a very artful fashion -- your complaint, whoever prepared.the complaint -- assuming the complaint -- 15 MR. BROWNLEE: -- I wish I could' accept the credit for the complaint. I didn't draft the

1. "E "

18 THE COURT: Someone did, and someone was ~19 extremely artful. Go ahead. 21 MR.-BROWNLEE: It's clear that the federal 22. preemption question ~ permeates the air by way of - 23 defense' - 24 THE COURT: That's not my' question. I know 25 EASTERN DISTP.ICT COURT REPORTERS UNITED STATES DISTRICT COURT- , 223 CAOMAN PLAZA EAST BRQOKLYN. NEW YORK 11208

p 3 6 '1' it'c,by _ way cf d:;;fense and _ I know there is ample 2 authority that the defense does not give'this tourt 3 3 jurisdiction. -4 Let's talk about the overall picture where the 5 preemption, the supremacy, become really the heart 6 of.the action in that you can't get to the complaint 7 unless you first determina the " federal question." 8 MR. BROWNLEE: I think, with all due respect, 19 your Honor, that's absol.utely upside down. THE COURT: Tell me why it is upside down? 10 MR. BROWNLE! You don't get to the federal 11 12: preemption case -- issue, until ynu have decided i 33-under State Law. LILCO mv not perform these functions! -{ That -is the t breshold question. ja "2n LILCO direct, control an evacuation effort 15 under State Law? Is there anything under State Law g the.t permits them to do that? j7 If a C urt is to determine that LILCO has that 18 power, that's the end of the case, period. 39 If a Court is to determine that LILCO does not have that power, then,-and only then, does the federal preemption issue hacome relevant. That issue need never be reached, and indeed is never reached until one is. disposed of the threshold State Law issue, 24

(

to determine that LILCO does not have the power. EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT . 22$ CADMAN PLAZA EAST BROOKLYN. NFW YORK 117tli

f .1 And th;n' tha quantion 10. if it do:an't havo the power 2 under State Law, is there some argument, semesprovision of Federal-Law which would set aside that determination 3 4 under State Law? 5 In arguing to the NRC panel, LILCO took the 6 - position that the issue should be eventually disposed 7 of by the NRC, and they said, "The legal authority 2 8 contentions -- nor can the legal authority contentions 9 p be resolved (except in LILCO's favor) by relegating i ~ 10 them to a State Court." 33 And their justification is stated in a footnote. 12-a decision in LILCO's favor, that is, a decision that i "LILCO is not prohitibed by State Law from implementirfg 13 ,(- g an emergency response," would, of course, end the matter.' That is to say, that if they win on the State Law issue, there is no federal issue.in question. They go on: "In that' case, the federal pre-emption issue would never arise." That seems to me a clear concession that the 19 federal oreemotion iss_ue which they raise and which 20 is clearly, as far as I can determine, the major defense which-they mount-in this case, only comes 22 up after one has made one of the two available rulings on State. Law. 24 THE COURT: Do you agree with that, counsel? 25. EASTERN DISTRICT COURT REPORTERS UNITED STATES D!$TRICT COURT

• 223 CADMAN PLAZA EAST

'SROOKLYN, NEW YORK 11201 w. , _ _, _,.... _ -. _ ~. _..

8 ~ b' 1: MR..~SISK Judga, I think if th9 iccu2 waro 2 decided as a matter of State Law in.LILCOs favor, 3 13 -that'is,:that LILCO h'ad authority to do these things 4 _asTa1 matter.of'S' tate Law, that could end the case. I dcin '.t agree. that you don' t. hit 'a federal 6. .q%estioh'.bifore you'get there. 7 'The important thing is that -- 4 T!!E ' COURT : - Tell me, convince me of that. 9 i' MR. SISK: Okay., 10 The important thing is that the County's jj. complaint and New York's complaint raise.one central 12,I . issue, and'that is the issue of whether the State l 13 and the locality can prevent the operation of ~ Shoreham on grounds of radiological health and safety. g And, in addition, the complaint rests on the single g proposition which'I will submit is of Federal Law, that the County,and the State have exclusive authority _to GXercise police powers to protect the public health and safety, or to take those steps which aren't exercises of police power which LILCO proposes to do; to protect the public. health and safety in the -- THE COURT: LILCO does not propose in its plan to_ exercise the police powers at all? MR. SISK: Judge, we don't believe that LILCO purports to usurp police powers. EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT * - 2:3 CADMAN PLAZA EAST -i SROOKLYN. NEW YORK 11208

r

== 9 1 THE. COURT: Not~"ucurp," act.as if thGy'd be. 2 In other vords, there's a probl.em; the .t 3 evacuation becomes necessary. You're going to 4-have to assume that you are one, a policeman; two, 5 a fireman; three,~.a municipal. hospital; four, an j ambulance driver.- 6 You know,.th?re are many, many things that occur 7 with regard to a massive evacuation. 8 Are you suggesting that LILCO does not intend 9 to-perform these functions? 10 MR. SISK: ! Judge, I'm suggesting LILCO intends 11 to perform or to contract for the performance of y I -those functions, but I don't believe that those are exer.:ises of State police power. What LILCO proposes to do initially is to. comply with federal regulations which are cited in our brief, to alert the public if an accident occurs. Now I'll point'out in caragraph, I believe it's 18. paragraph 17 of the County's complaint, one of the challenged actions is that LILCO cannot even advise the public that an accident is occurring; cannot make recommendations to the public as to whether they 22 should evacuate, shelter, or perfc.m other statements - 23 in the event of a radiological emergency. S- ~25 Now, those steps are required to be performed EASTERN DISTRICT CO JRT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST BROOKLYN. NEW YORK !!201

E '.,i, 10 1 by NRC' regulations cited in our brief 10 CFR 50.47 (b). l2 Those types of functions are typically performed r i w' ether a' State or County does participate in an h 3 ,,,.s,.

emergency Yesponse plan,iand all of the other plans 5

6f ths country that we 'are ' aware' of 'by the utility- ~ ~ Muhnde'. s 17 The fea5cn is lhey'run 'the plant; they"aee ~ ' ' ' ~ .6 fbquired' by the'Fede5ai regulations to make an ~ assessment of how the accident is likely to be i ^ 9 .10 developed. They are required't'o make an assessment of what the likelihood of radiological releases are. y ' ~ LILCO, in'other words, is responsible and'would 12 i be responsible whether the State was or wasn't par.- 13 e. .t ticipating for making those predictions, for making L j, recommendations, and for making sure those got-out to the public._ That is a licensee responsibility. .g That is exactly what LILCO proposes to do pursuant 37 to Federal regulations, and-that is one of the things 18 that the~ County is challenging in this case.' I submit to you that that is controlled exclusively oy Federal Law. If I1may return to the. point that the Court asks, 22 - that is, if we decide New York Law in favor of LILCO, .23 .24-. do we not, reach a federal question? i { (. ~ I think I explain that you'have to cross a 25-EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT ' 223 CADMAN PLA::A EAST ~ EROOKLYN, NEW YO. TIC 11701

2 11 1 fcdtiral quaction in order to dscido that. But tha 2 ' key issue, Judge, is what is the plaintiffs claim? 3 Suffolk County and New York have not claimed 4 that LILCO does have the authority to do these things. 3 Jhey have claimed that LILCO does not have the authority to perform certain functions after a j license is granted; after the plant is operational; 7 after the plan has received approval from the Nuclear 8 Regulatory Commission. 9 That conduct, I will submit, is federal in 10 character, and the county's challenge is to that g conduct. I just don't see any way.that you-could-I ,_ -resolve the complaint, the claim that the county is I making and that New York is making, without hitting 14 a federal questi n, because it's their claim as to LILCO's. conduct. 16 THE COURT: Mr. Palomino. MR. PALOMINO: Your lionor, I think it's very simple. -- Whether or not this case arises or indicates 20 ~ . Federal Law has to be determined by the face of the complaint. If you look at the face of the complaint, it spells out certain actions -- and you've read it -- 24 (- .that you will direct traffic, post signs, block roads, 25 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST BROOKLYN. NEW YORK 11201

} c. ~~ 12 I do oth r things. 2 The State's cocplaint specifically says what 3 specific' provisions of New York Law these violate? eafseof'hetioninbolvesthat, that's all it does. 4 -TheJ ~ I mean,-h'e talks about what is in his brief, 5 talks Ab'ut th6 County's challence. He'doesn't point o 6 7-to anyplace in'the complaint where Federal Law is 8_ involved because'it is not involved. EIt couid only be, 7-9i by way of anticipating -- 10 THE COURT: Did you prepare the complaint? 11 MR. PALOMINO: Yes, I prepared the State's 12 complaint. i 13 Your Honor, these Laws were on the books for-k'. ~ They are done by the sovereign g over a century. i State of New York, under the police powers, to-I . 15 l . protect its people. g o It's indifferen to whom the violator is; p whether it's. Mcdonald, LILCO, or Joe Smith. The g ~ cases are as simple as that. ~ The co5 plaint is there and that's all that is ~ involved in the case. 21 THE COURT: What about the simple language we read in Judge Bartels' decision? Are you familiar with that case?. 24 ~' MR. PALOMINO: I'm not familiar with Judge 25 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN Pt.AZA EAST ~ BROOKLYN. NEW YORK 11201

,-~ 13 1. Bnrtale'1caso. This is th2 only action the State 2 isJinvolved in. We are involved-with that -- 3 THE COURT: It's a case that went to the 4 ~ Circuit, and I'm wonder 4ng whether or not you are 5 familiar with'the language-contained:therein? 6 .MR. PALOMINO: I think that case is clearly 7-distinguishable -- .8 MR. B ROWNLEE: Let me speak to that, if I k' 'might -- 9 t '10 THE COURT: Please don't interrupt ~him. 11 MR. PALOMINO: The rules are determined on the 92' face of the complaint, and the plaintiff is' entitled i 13 -to plead his cause of action if he wants. .And it'.s ^' pleaded as a State action. 34-15 No matter how he characterizes, challenges, 16 there's nothing in the face of this complaint which would give this Court-jurisdiction. And they are g talkingaboutremo5emotives. Why they are violating ~ the law, why they are engaged in this conduct, doesn't 9 appear in the face of the complaint. ~ _They are talking about Federal Law, and then they go into the merits.. T We are not interested in the merits here. The 23. only question-is.one of jurisdiction. 5-- 25 Under 1441 there is no basis for jurisdiction EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST ~ '[ BROOKLYN. NEW YORK 11201

e ' ) a '14 X .1 - haro. I.think that's clear also from the case wo 2 cite with the Ta:: Board. ~ I think it's long-standing -j .3 law going back to Tully, Cardozo, and other Judges 4 down throughout the Federal system, and the purpose '5 98 a;well-pled rule..is to. limit -the number of cases .that go.to Federal Court....That',s why you can'-t; '6 7 anticipate defenses. It's nowhere do they point to it-in the' complaint.- 8 i. They'will talk about their memorandum: they 9 will talk about their challenge; they will tal-h ~' 10 about a nuclear -- rather regulation of the NRC.- y This was so clear that FEMA, if you go to tne merits, i -the. Federal Emergency Management Agency, said they, Y . violate State Laws of the State of New York. And 14 ~ you don't really reach a question -- they don't get a license first because thev have the burden of 16 ~ proving they-can do this all legally. ~ FEMA said the/'can't. Judge Lawrence said, ~ "Go to the State Law," and he's right, because it' should be interpreted by the-State court. And this case does turn on a State question initially. 21 Their statement in paragraph 16, "Nothing in New York State Law prevents the utility from per-23 forming the necessary runctions to protect the public." 24-L i-They didn't allege there that they had to resort EASTERN DETRI(3' COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST ~ BROOKLYN. NEW YORK !!201

m c 15 +. - z. 1 .to Federal. Law.- They said they aro complaining with 2 State Law, and then they turn and. say Executive Law 3 2(b) gives them that. power.. 4 So the case can tuz;n on State Law on that 'S- - situation -and never reach a federal question. And 6 that's how 'the'complai'nt is phrased becaussithat is

7, how it arises, and-it's as simple as that.

8 They'can'.t convert it by interpolating in our 9 ? complaint things that are not there. . jo MR. BROWNLEE:. Let me pick up one comment there, p. . We do'have an anomalous situation there; we have'the 12 ASLB, the NRC hearing panel, which is attempting to i 13 . -determine the adequacy of the emergency plan, looking j4 to both LILCO and the County, and saying, "Here's a ~ - 15 . State Law question. How are we going to resolve this? 16 And why shouldn't it be forwarded to the State Courts

37 for.their resolution so we can be guided in our judg-18 men s.by a. definit ive determination from the State Courts?"

9 .Now, its seems to me that that panel ought to know ~ a federal question when it sees it, particularly one that arises under their rec, and,they are asking the parties,for assistance'. ~ ~ Pursuant to that virtual direction, we filed an action in State Court and the~ argument that comes EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST BROOKLYN. NEW YORK !!201

T. 16 y

g-bach.the othar way ic, "No.

These are federal .2 issues," and leaves unclear whether:this issue is { 3 ever to be resolved. 4 Now, going to your, question about Judge Bartels' i CP nion,.itgeems,.to.me.that-his remand.opi. pion falls 5 6. 88sentially within.,the range.of the AFCO.. Case, which .y the Franchise Tax Board Case cites and distinguishes. 8 HE COURT: Yes. 4 MR. BROWNLEE: -- and those are the cases in 9 10 which either an. express federal cause of action exists which the complaint alleging State Court claims is is essence coextensive with, and that's one side of i 13 it and nobody here suggests that the County does r. !C indeed have a federal cause of action for the deter-mination of thes State causes of action. Or the 15; ~ other line of the AFCO cases, whic'h I think Judge 16 Bartels' opinion is under, is where you have a State claim, but the aff$rmative claim for its substantive ~ content looks to Federal Law. So that he determined 19 - i.n that. case that the complaint which had been filed 20. by the County, although it arose in State Contract 21. and State. Tort Law, had as.its substantive underpinning, 22 the provisions of the NRC regulations and was therefore, 23 in essence,-a claim under Federal Law.

24 c

.THE COURT: Well, it was pled as such. There .25 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST BROOKLYN. NEW YORK 11208 j

~ 17 I wns a plcading.in that case. !!R. BROWNLEE: That 'is corr.ect.

2 3

T!!E. COURT : But beyond~that, he makes gratuitous statements, I,think, and maybe it is 4 5 gratuitous ~.only. It appears to-me there.was 6 en ugh.on.the face of the complaint to;give it 7 federaltjurisdiction, federal flavor. 8 But I think he went further than that, didn't he? 9- . MR. ' BROWNLEE : What I. remember is specifically 10 .g the references to the. fact that there were allegations in the complaint which related to the substantive-g i .g --NRC regulations, and that those were the standards .of conduct which the County's State Law complaint implicated and theref' ore it was, in essence, a, ' Federal Law pleading and discussed -- I don't have a fix on what you referred-to as the " gratuitous comments," but grattiitous comments should nev'er be 18 a precedent.

4.TIIE COURT

That's an expression that should 20 not be used. I often make gratuitous coerents-after .21: having decided a case. But it's not a very good 22 -- practice because it_only creates havoc for the next 23 -judge down the line. 24 A Yes? 25 ~ -EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST ~J BROOKLYN. NEW YORK !!201

[ 18- .1. MR. -. SISK : Judge,'I think that nay bn the case

r'._

I2~ _ what we:have in~' terms of the statements by Judge ~ X. ..3-Lawrence,.as well,.that-the County and New York as

l. i

. wellia' e referring to.,But in the light of the r s. 3 ' com:nents - that have just been made, I do need to bring. i 6' Fome"'fa6ts '-to the Court's attention. J7 T!!E COURT : - Do you really disagree with the 8 bold letter print, the Hornbook type statement.that l L9. .if'indeed no jurisdiction exists in the-first place, ~ 10 . you cannot give ~ this Court jurisdiction by interposing .1' 1 an answer or anticipating a federal question and answer? 12 i ~- MR. SISK: Judge, if the federal question arose i T2- ' 13 ' ir l' solely.as a defense to a State claim, there would be y no-removal of-jurisdiction. T!!E COURT: I'm delighted that you at least g agree upon'something. 7 MR.-SISK:. I don't think anybody ever disagreed with that, ' and that's exactly what our. brief says~. 9 ./ - The Suffolk County complaint necessarily arises 'under Federal Law and necessitates and implicates ~ 21 ~ ' federal ~ questions'for the reasons I've just stated. THE COURT: I tell you that you will have to convince me of that; spend every moment convincing N me of that statement. ~ 125 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST BROOKLYN. NEW YORK !!201 J ~

7 m. 19

.g l.

(MR. SISKa' ~ Judge, that's what I'm-going to-

2 ~

trylto do right'now. ( 3~ .Tha' first. thing I want to do is direct the =4: Court's-attention-to-the' face of the complaint. -- - 5 CONIt alleges' that tthere iisan ongoing NRC proc '6' ceeding. It* alleges that'LILCO has.to submit an 7: ' emergency plan.to the NRC'.' i '8 It alleges-that LILCO has made representations ~ 9 ,in that. federal proceeding. It alleges that LILCO 3 jo must have' an.energency plan in order to get federal jj-approval.of that license. . It alleges. that LILCO doesn't have the authority 12 I I 13 ;- .to perform certain. steps in'orde'r to get an NnC license. j y The face of the complaint shows that this arises ~ jg_ in a federal context and implicates issues of Federal 1'5 Law. g- ' Judge, in addition, I think the comments by the 37 ~ Supreme Court in Franchise Tax Board that are quoted 38 extensively.in our brief show'that if the pleading 9 .is artfully drafted-in a way.that says, "We are just ' making a claim under State Law," but it is clear from the contextiof the action, it is clear from the nature ~ ~ .of the conduct that is put in issue, that there is a federal issue, then there is removal jurisdiction. 24 C. -Let me distinguish' Franchise Tax Board. In 25 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT' 223 CADMAN PLAZA EAST ~ BRyKLYN. NEW YORK 11201

7.--. m. 3 20 -l'. -Franchica Tax: Board, a California ~Stata agency filed r-2' h a-declaratory judgment action and they said, "We want i: -.3' 'a1 declaration-that the, exercise of our taxing power, 74-State-conduct, is legal; that that exercise of our ~ 5[ [ State taxingepowerais not preempted by<the Federal 6 statute.under ERISA."-*.That'is the context-in which s

7 -

the. Supreme Court said.you are anticipating a defense. 8, The. conduct in-question is your exercise of 9 4-your tax power. ~ L10 Now, let meLcontrast that with this case. In 'll this case, Suf' folk County is not claiming that Suffolk 12 -County.~can'.. validly e'xercise-police powers and direct i A 13 . traffic in the event of a' radiological energency. '~ '14 . New York is not claiming'. that New York can validly 15 exercise police. powers in the event of a radiological emergency. 16 yj7 - The conductcin question is not the State's 18 . conduct;'the conduct that they are challenging is LILCO's conduct. It is conduct by LILCO which on 39 j. 'the face of the complaint and as briefed by the parties,.would'not even occur ~until a federal g license i'is granted -and until LILCO takes steps to -implement those. pursuant to a federal license. think that's why it's a federal question. I ~ I'do.-want.to. clarify the way, since we have gone EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT' 223 CADMAN PLAZA EAST ' BROOKLYN. NEW YORK !!201 a

21 y 1 into the transcript of the NRC proceeding, I think -2 it's crucial,that-we point out how the State and 7 s. .3 how the County have characterized this issue. Because 4 I think what the Court is hearing today is that they 3 'are.:just..: seeking:a declaration of.,StatecLaw that this will;be. decided 3in the abstract.by a State Court that 6_ 7 the NRC just wants guidance and take it back to the NRC and let.them ultimately res'olve the issue -- 8 THE COURT: Can't a State Court Judge handle 9 I 10 l' the preemption type defense? ~ MR. SISK: If it were a defense, yes. The gj_ S' tate Court would have jurisdiction. g i . I3 THE COURT: Isn't it a defense? MR. SISK: No, Judge. It's not. It's part of their claim. They are claiming that they have:the exclusive authority, that is, Suffolk County and'New York have the exclusive authority to Perform these functions under New York Law. And I'll 18 submit that that question cannot be decided, and that question has to be decided before they even have a claim. 21 That question can't be &cided without reference 22 to the Atomic Energy Act, the Federal FEMA regulation. 23 You can't determine Suffolk County -- and the State of 24 New York can do those things that are necessary to 25 EASTERN DISTRICT COURT REPORTERS UNITED $TATES DISTRICT COURT 223 CADMAN PLAZA EAST BRO,0KLYN, NEW YORK 11201

y 3 n;- 22 L1' 'implicata an cmargancy.responso without~looking'to 12-Federal Law, and'that's.the crux of their complaint. -_~3. "If I.may, Judge, I'd like to show the Court 4l some recent correspondence between the Governor of MS-Ahe State of New-York, the'.p~laintif f in this lawsuit, g [ andfthe; Secretary o'f Energy.'Hodell,4 which would.show C . you how ' the State --- the State has characteri::ed 7 -:its claim. 8. 'E

THE. COURT:

Come up. _. 9 f1R. SISK: (Handing.) g I think this ties in really with page one of g Suffolk; County's reply brief where they say that. i "LILCO has made a statement that is a single erroneous' proposition time and time again." Their reply brief- .says that "LILCO.has stated time and time again that

the-lawsuits represe'nt --

let me quote.this para-graph of LILCO's memorandum in opposition to the County's remand motioni "_ Operates 1on the assumption that if you say the world:is flat-often enough, the -19

worldlwill be. flat. ~ LILCO repeats and repeats the

20 single erroneous proposition that the Suffolk County _

.y y -lawsuit seeks-to, veto _ an operating license for 22 Shoreham on the_ grounds of radiological health and 23 safety." 24, The trouble is that nowhere in the brief does 25 ' EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT . 223 CADMAN PLAZA EAST ~~; BRQCKLYN. NEW YORK 11201

c [ 23 ~ .3 thG County cvar-state why that proposition is 2 . erroneous. We believe.it's absolutely =correc_t 3 andlit's absolutely clear and that it's more 4 analogous to saying the "world is round." 5' U.? If.you.look at,the_ correspondence.that I.'ve..,., just handed..to.the Court,.there,are three letters. The first'1etter is dated May 15th, 1984. It bears 7 the letterhead of the State of New York, Executive 8 9 j, Chamber, Mario Cuomo, Governor. At-the bottom of page one, the Governor's letter, which is addressed to Senator Warren Anderson -- the 11 addressee appears at the last page of the letter -- i . the end of page one says, "With respect to safety - "- f ~ k. and remember'that's the issue that is exclusively 14 controlled by Federal Law under the Atomic Energy 15 Act, "and your apparent support of Secreta _ry of Energy Hodell and his honest test of an evacuation 17 plan, let me repeat what I've told you since our 18 first discussion of this issue. 19 The safety of our citizens must be our primary 20 concern as elected office having the public trust -21 in matters relating to health, safety and welfare." .22 The. final sentence in that paragraph says, 23- "T'o explain in more detail, my position - " which 24 L. is Secretary'Hodell's -- "I'm attaching a copy of a 25 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT' 223 CADMAN PLAZA EAST , BROOKLYN. NEW YORK 11201 ~ ~.. ~~

a 24-l 'Intter I cent him'last w ek." 2 Now, the second letter which is attached-to r_ e '3 the' Governor's letter, is a letter to Governor ^ 4-Mario Cuomo from Secretary of Energy Hodell, the 5 Federal Secrefary'df 5nergy. 6 The letter ~from ~ Secretary Hodell is.. da,ted ~.' 7 ~ 'May 7th, 1984. It suggests that the State partici-8 pates in an exercise of the LILCO plan that has been 'O '9: submitted to the NRC in, conjunction with the Federal _10 . Emergency Management Agency. And you will note that 11-at the end -- that in that letter, particularly I 12 will look to page two at the top, Secretary Hodell i f - 13 says, "Shoreham will not operate until the NRC ~ C ja. determines its' operation to be safe. The major remaining issue to be resolved, and it is clearly.an 15 essential one, is that of an adequate' emergency plan. 16 LILCO has developed a plan that has been reviewed 37 under proper,-leg'al-requirements and is considered 18 adequate w'ith some corrections. ~ .j9 The Federal Emergency Management Agency is 20 prepared to assist in the development of.an off-site ,g eva uation plan.- Their approach envisions a full 22 field exercise of the utility's plans, assuming g necessary.correcticns are completed. 24 - na n, we pledge to commit the Department 25

EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT

~ 223 CADMAN PIAZA EAST BR,0,0KLYN. NEW YORK !!201

-25

u.

'1 Lof Energy'a resources to assist FEMA and the State ~ 2 of-New York in these efforts." p. 37. The letter goes on to say, "I agree that there 4- .is now an.open, question on the plan, and your opinion -3 Imayaba c,orgec;t,; 3, Howeyer,. we' can ' t know if you are j-right-witho,ut..an.ponest test." - y, _7 - And he then _says, "Let's give safety a try." THE COURT: . Do:you really think that is before 8 .h this Court? Do you really think that's the question 9 before~this Court? 10 MR. SISK: Judge, I do -- 33 THE COURT:. The question is jurisdiction. It's y_ i like many things my mother would say: "It's on a cold 13 k plate." Don't talk to me about the merits of the case. MR. SISK: I'm not trying to convince you of fed'eral motives; I'm'trying to put you in. federal context and point you to the last letter. THE COURT: Jurisdiction'is really something 118 y'ou have:to discipline yourself'in order to address yourself to it. -.You can't be confused by the merits 20 on either side of-it. -MR. SISK.: , Judge, I understand that 22 THE COURT: It may very well be an illogical ,23 result this Court reaches, illogical to the extent 24 this' Court has indicated should not encourage lawsuits; '25 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST 'i BROOKLYN NEW YORK !!201 r +# -m-, v w e,e,,-...,g_.- p p.-,,.

r s' 26 .1 I that if lawruits balong in the State Courts, they 2-ought to be in the State Courts. 3' But'we handle $10,000.or more diversity, two-4! automobiles that meet at.-an intersection and have 5

a. collision,..yet we say in.this case we don't have jurisdiction. "It's illogical.

6 ,7-But'the question of jurisdiction is not to be viewed'in an emotional way in addressing the merits. 8 It's.a simple matter and must be addressed on a cold 9_ 3 10 plate. + MR. SISK: Judge, th'at's exactly what I'm trying 11 .to get to you, is the jurisdictional question, and I'm ~ 12 i just laying the context'from the last letter. It's j ~ h-The Governor of New from the Governor of New York. g ~ York is the plaintiff in this lawsuit. It's-dated May 9th, 1984, and.it represents the' Governor's g characterization of the lawsuit pending before this .g -Court on a motion for remand. On the bottom of page one, "Your letter requests the State participate in a so-called honest test' of the LILCO off-site evacuation plan, the requirement .21- ~ you refer to as,a mere technicality. . Two, you are apparently not aware in the State 'of New York and the County-of Suffolk have pending 124-lawsuits in which they are challenging the purported 25: EASTERN DISTRICI COURT REPORTERS - UNITED STATES DISTRICT COURT ~ 223 CADMAN PLAZA EAST ' BROOKLYN NEW YORK 11201 N.

i 27.

1. E E.

j plan and test as'an attempted usurpation of sovereign

2.

4 ~ powers: reserved to the-State and County uhder the Tenth Amendment to the Federal Constitution." 3 That's the' Governor's characterization of this 4 5 - lawsuit. THE COURT: Well, he was a good lawyer; now g he's a governor. 7 ee,. . depends what hat h'e'has on. 8 Go ahead. i 1 9: MR. SISK: The second paragraph says, "To accede'to'your. request - " that is, 'he request ,l i that New York' participate in an exercise -."when- } l r-13 .the-Federal Government is in the same legal position 'E as-LILCO, would jeopardize the State's lega1 standing 14 - in these actions." ~ 15. ~ I'd submit that the Governor has recognized 16 that LILCO's conduct in-implementing an emergency 17 plan puts LILCO-in'the shoes'of the Federal Government 18 ~ and makes this. lawsuit a challenge directly -to federal -19 authority that hinges on a federal question. 20 I want to make it clear to the Court, the 21: ' position-that the County in New York has taken before 22' the ASLB. _The County has quoted in its reply brief 23' at length ~from the transcript of'the hearings before ' 24 the=ASLB. I think it's important that the Judge have 25 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT ! 223 CADMAN PLAZA EAST BROOKLYN. NEW YORK 11201

28 w 1. completo copico.of these transcripts that deal with 2 the-legal authority issues, so you just won't see 3 little small bits and pieces, and it will be seen 4 in context.. -5 "'-I will offer to the Court transcripts from ~ -61 December 1, or. portions of transcripts froin December 7 -

l',~1983,'and January 27th, 1984, in the ASLB proceeding.

8 (Itanding. ) 3' 9_ In those transcripts, and particularly in the hearing oa January 27th, 1984, the. State of New-10 g York 'and the County of Suf folk took the position before the NRC that if the issues of StatelLaw ar'e j i -decided in New-York's favor, the NRC lacks jurisdiction g to either side, whether there can be a federal license 14 issued. 15 They have_ stated forthrightly and have taken the position-that -- let me just turn to the transcript of January 27th and to quote Mr. Palomino in his state-ment to Judge Lawrence at page 3655. . - ' 'Now, tlie context of this was a statement by 20 ~ Governor.Cuomo to the effect that LILCO lacked the authority'to perform the steps necessary to implement 22 its plan. 23. 1 Mr. Palomino states 24 to Judge Lawrence, "Well, C-your Honor,.I really feel the State has spoken 25 . EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST BROOKLYN. NEW YORK !!201

.,7 --i - 29 + L. (1- ~ conclusively on this, that LILCO doesn't have the ~ r - _2: power, that its plan is therefore illegal, not c at 3 implementable. And while you, the NBC, can't issue 4 an order, I do think this Board could take a very 15' responsible position. 'And that is-since LILCO has 6 .the purpose in this case to rule that they haven't ! proved.it and force them to go to' State Court'and 7 8 get this issue-resolved. They can come back if b they win,'and if they don't, that ends it." 9 THE COURT: Mr. Palomino, do you want to 10 respond? 11 MR. PALOMINO: I was talking about burden of . 12 i

• proof.

g .y They have to prove, in order to get a plan, j4 " ~

• Y
• E * ""
• 9#

15 ' the requiremen.ts of the NRC. g MR. SISK: I'd like to go on -- g

1. 9

.18 MR. SISK: He also says at the bottom'of 3656, "I'm saying,-you, the NRC, should decide T-since the State has spoken.as a sovereign state and you can't_go behind State Law, you shculd rule against LILCO." " Judge Lawrence: Is it your proposal that we then decide these issues now before going further 25 ~ EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST BROOKLYN. NEW YORK !!201

v.- ~ 30

~.

I' 'with this'hcaring,'or'that" wo-postpone it to the end?" s "Mr.' Palomino: You'can't decide other than the 2 State's position, and since the State has taken that ~ - 3 position, you can'tugo behind.. You should decide 2 4-4 that;LILCO's plan.-is~not imp,lementable at this point." s

5 g.;.(A.questionfthen comes'later on in the page by g-Judge Schoen -(ph), also a member of the NRC panel.

7 "Mr. Palomino, I take it-then"in your view this 8'- i. Lparticular. issue, the notion that the State has 9 spoken -- and e have no power to rule odierwise -- 10i is indeed dispositive of'the entire matter of the application for' license." i '"Mr. Palomino: Unless they go to State Court, r . 13! and you can'put that in your order,'unless they go k . j to State Court ' and get : it reversed." 15 Mr. Palomino is stating then if_a State Court 16 .or'if the' Governor of-New York rules on an-issue of . 17-State Law,Lthe~NRC hastno jurisdiction to grant a 18

license forfthe Shoreham Nuclear Power Plant.--

Th't a i.s-exactly-how they have framed the lawsuits that 20-are pending before this Court. It is a forthright ~ 21 ~ attempt by Suffolk County ~ and New York to preempt 22 .'the'NRC from having any jurisdiction, from being 23 able~to decide the_ question of whether the plan can i 24 ..k adequately protect the public health and safety in 25 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST A' BROOKLYN. NEW YORK 11201 y

7 -y 31 lx thi event of a radiological-cmcrgency. it The County's posit' ion has.been even more clear. 3 Mrs.~Lechy (ph),. counsel for the County, says on 4 page'3659, "Now there isn't any question on legal

S-

-authority. -The State has.-spoken conclusively..The i highest' executive.of.the State has stated what the 6 lawjisiand has stated-that the LILCO plan is illegal; 7 thati.LILCO does not have the authority to do what it 18

9 3

. proposes to do in its plan and that therefore this plan ann t be implemented." 10 At-the bottom of that page and carrying on to the next one, counsel for Suffolk County s'tates: -12 i . - I want to point out that the State of New York has now resolved it and said the plan is illegal." Now, in-light of that, this proceeding sh.ould end. There is,n't anything to proceed on here because the plan that LILCO is proposing that this Board find 18 can and will be imolemented is-illegal. It can't be im'plemented, and the highest authority in the State 19-has-said that. 20. So the only~ responsible action for this Board 21 to take is to stop the proceeding because there's 22 - nothing to proceed on. 23 She said that two or'three times, and th'en on -24 ( '- page 3661, counsel for Suffolk county states, "This 25 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST ^ BROOKLYN. NEW YORK !!201

f; .Y h 32 =. 1-Board does not-have-the authority, as Mr. Palomino -2 stated, to go heyond that State Law or to go behind -C.

U 3

the~ State Law. And in light of'that fact,-there is

4

~ nothing to proceed ~on hpre because the plan is illegal, .and it+is basically'..as simple as that." S g - n ' Ona TIIE-COURT': VC Tell-me, why can't the Supreme p. ' Court of New York make a. determination in this case? Is1there not an Appellate Division?' Is there not a 8 W.- Court of Appeals?. And is there no cert from the 9' Cour't of-Appeals? So-ultimately won't it be at 10 the doorsteps of the Supreme Court of the United .g j States?' g i What is so magical about coming in before the-j '13 .( Federal Court as distinguished from that. and a State i 74 Court judge? i 15 MR.'SISK:. Judge, that which is magical is the nature of the complaint, the nature of the claim that .g_ ~ is being made bV th'e_ plaintiffs, by Suffolk County jg and by'rew York. Their claim is that Suf folk County and New York 20 ~ have an exclusive authority to perform certain '21 ~ functions ~, including advising the public that an 22 accident-has occurred and making recommendations ~23-to.he public, not sending out the National Guard 24 - {: and ordering.the people to evacuate. 25 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST BROOKLYN. NEW YORK 11201

rs r-o r 33 'I ~ THE COURT: Sen, I don't want to get into the 2 merits'because I could make comments about what you r '~ 3 said, and I don't want to make comments about just 4 informing the.public about there has been a nuclear 5 accident or emergency. I' don't want to go into that. T3 6 -MR. SISK:. That's not in the complaint -- 7 THE' COURT: I know that, but I tell you that 8 this: Court has not made a' determination. But it may 9 5' very-well' arrive at what I believe to be an illogical 10'

determination, but consistent with the state of law

.11 ~that exists, okay? .12 The state of law is rather clear to me' i 13

Now, I'm_ going to give this every consideration, ja and in my judgment it's illogical'to transfer to I

15 - either Albany or Suffolk County. I unders tand-g. ycu've stipulated to Suffolk County, whatever that 17 may be. But 'I.'m coing to aive it fur'ther consideration. 118 It makes more sense to me to have the case stay here in this Court. I will make that very claar tn

9 20 y u.

But ~ I' don ' t think that 's +'a = s ta ea of the law. MR.'SISK: Judge, if I may -- 21 THE ' COURT: Now, if you still want to convince g me that it is -- and I'm going to be receptive in 23 that regard, so convince me now. - 24 i SISK: Judge, the face of the complaint 25 . EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST BROOKLYN. NEW YORK !!208

y -- u 34 1 1 .shows that federal gunstions are necessarily involved. 2 And let me'just give_you once again.that concrete

h. '

3 example of an area.where Franchise Tax Board itself .4. said that a case is removable. It is cited in our 5 brief, and it states that on page 27 of our brief. .6 "It is an independent corollary of the well-pleaded 7' complaint rule that a plaintiff may not defeat 8, removal by adnitting.to plead necessary federal 9 l questions in a complaint." i ~* 'o Judge, che necessary -- j jif THE COURT: It's very strong language, isn't _12 - it? i 13

1R. SISK:

'Yes. 1 THE COURT: Go ahead. y !R. SISK: The necessary federal qucation that -15 is in the complaint -- and that falls s.quarely within 16 this rule and the AFCO rule -- and that is controlled 37 exclusively by Federal Law. Just to give you one '18 example, the overall proposition is radiological 39 health and hafety. But one example is in paragraph ~ 20 i 17, ' A', C, and D, the County says and puts this conduct g in issue, "LILCO cannot make recommendations to the public as to what they ought to do if there's a g radiological accident. LILCO cannot suggest to the g ( public that.- " and the word they use is " advise" 25 ~ EASTERN DISTRICT COURT REPORTERS ~ UNITED STATES DISTRICT COURT 225 CADMAN PLAZA EAST BROOKLYN, NEW YORK 18201 4 I u,

~b 35 ~ 1 ~the~public. ' That's in the' complaint.

2~

"LILCO cannot advise the public as to what 4 3- 'it should do if there~is a radiological accident." i-Under NRC regulations,. the ones I cited earlier -- 3' let me quote subsection-10 CFR Section'50.47 (b)4. 1-6_ It. states: M m:e - r -- p "A standard' emergency classification and action ~ 8 level scheme, the basis of which include facility 9 4l system and of' effluent parameters is in use by the nuclear facility licensee as the utility. And State .10 33 and local response plans call for reliance on infor-mation provided by facility licensees, again, the' 12 u - ~ utility, for determinations of minimum initial 13 h. [ off-site response measures." j,. Tho'se regulations also, in other subsections, require that the plan provide for notification to the public. 9*' -18 ~ County doesn't allege -- that LILCo proposes to send 9 otit armed guards to tell the people of Suf folk County ~ to get out or to tell them to stay. LILCO proposes to comply with that Federal regulation, to advise ~ the public what to do, to get the advisory out on the radio and to set off sirens. .24 I~ -.' Suffolk County's complaint' challenges that 25 EASTERN DISTRICT COURT REPORTERS UNITED STATES DISTRICT COURT ~ 223 CADMAN PLAZA EAST ~ ~* Aqnolff YM New vner seus

y, ~ 36 i. 1-1j -conduct by LILCO.- l r. Squarely under the-rule in-Franchise Tax 2 ^

3 Board,-that conduct is controlled by-Federal Law.

4 The Federal.regulat, ions-say that the State y andithe. County have to comply with.the Federal regulation. ,THE COURT: 'I; understand your-position. 7-Y* 81 MR. PALOMINO: Very briefly. I'll-do it in 3 9 two sentences. 10 Judge, all the references in the complaint, the' Federal regulations are not essential p' arts of 12 i l 13 -our cause of action. And therefore,-it still e -alleges solely as State-action,-and this Court ~' doesn't have jurisdiction. 15 16 Gentlemen,.thank you very much. THE COURT: If I.need any. additional help, I'll be in touch.' 18 : !!R. FARNHAll: I think, for the record,'there 19 is also.pending.a motion to consolidate. I have 20 nothing to say on that. 21 TIIE COURT: I know, but that will follow as ~ 22-night:follows day, depending on the determination 23 of the initial motions. And they are two. /

24 C

!!R. PALOMINO: On the motion to consolidate, -25 EASTERN DISTRICT COURT REPORTERS ^ UNITED STATES DISTRICT COURT 223 CADMAN PLAZA EAST ^ BROOKLYN, NFW vntic 11Mt 1

~ 37 3 1. -N w York State doesn't have any position on that. -I mean, we are not involved in any 6ther' 2l { 3 actions, and it would be drawing this into something '4 we are not involved in. 'S TIIE COURT: I can't consolidate,that which j doesn'tlexist. 7' 'But with regard to the one that does exist, 8 I'll address-myself'to it when we arrive at it. '9-4- That will be very simple,'okay? i 10: . It will not tax my ability, I'll tell you'that. jj If you have'any additional information -- I don't mean-to encourage additional briefs, memos, 12 nly if y u think its really'important, ~ et 13 and.put:it in letter form. I have enough to read. -,j - My poor eyes are collapsing;.I think I have as much information as I need.- I Snow-the problem. g I have; indicated to you that it makes senso ~_37 to keep jurisdiction here. 18! I have-also indicated to you that I don't think 9 that'= the' state of'the law. The state of the law-20 is-for better or for worse, the complaint in Sct -dictates and'~ directs the serious question or 22- ' j urisdicticm.. And that the defense, if any, can g.

and should be. addressed by the Sta*e Cc2"a.

TMv 24 \\. are perfectiv r omoetent t o do so. 25-EASTERN DISTRICh COURT REPORTERS UNITED STATES DISTRICT COURT , 223 CADMAN PLAZA EAST BRQQKLYN. NEW YORK !!201 a

y L^ ~~ ~ 38 1 And if inderd.they are in error, you always have

:(.

~the strong possibility in a case of this~ size, magni-2- 3 .tude'and importance, to go before the Supreme Court L4' of the. United States.. 5 You may-say, "Nell, they don't grant cert very 6 ~often."- My feeling is this case will be censidered 7. in its most favorable light with regard to whether 8 or not cert be granted or not, if and when that time 9-comes. 'But you can obviously see that I'm torn between 10

what I think is proper here and what I think is the 11 state of the law.

And it's not for me to do anything, 12 ex ept follow the state.of the law if it indeed does i 13 n t violate my-good conscience, and this proposition ~ l x. 4 does not, because I know it can be addressed in an jg. appopdate forum. .j3 l16 And with that'in mind, and without making any udgment one way or. the other, I bid you good day 17 and have.i good weekend. 18 MR. PALOMINO: Thank you,.your Honor. 'MR. BDOWNLEE: Thank you, your Honor. MR. SISK: Good morning, your Honor. t * *** 22 23 . 24 25 EA$rERN DISTRIhr COURT REPORTERS UNITED STATES DISTRICT COURT 225 CADMAN PLAZA EAST . BROOKLYN. NEW YORK ttMt s

d ^ '* ~ x,,,. -UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

---

x

.MARIO M. CUOMO, CV-84-2328 MEMORANDUM Plaintiff, AND ORDER -against LONG ISLAND LIGHTING COMPANY, Defendant.

---

x COUNTY OF SUFFOLK, CV-84-1405 i

1 l' Plaintiff, h-- A. -against-LONG ISLAND LIGHTING COMPANY, j i Defendant. ~ h ________________________________x APPEARANCES: FABIAN G. PALAMINO, ESQ. Special Counsel to Governor Mario M. Cuomo- ~ l Executive Chamber Capitol Building Albany,'New York 12224 MARTIN BRADLEY ASHARE, ESQ. Suffolk-County Attorney 1 H.. Lee Dennison Building Veterans Memorial Highway .l i Hauppauge, New York 11788 il ..KIRKPATRICK, LOCKHART, HILL, .r... V i w 1 i eoa ~ ~. _ - - -,... .. - -. -.., ~ ~.... -,.. -. - -.

v ~~ s.: t 2 ~

N n

CHRISTOPHER & PHILLIPS 1990 M.. Street, N.W. - Wathington, D.C. 20036 By: ' Herbert.H. Brown, Esq. Lawrence C.'Lanpher, Esq. .KIRKPATRICK, LOCKHART, JOHNSON & HUTCHISON 1500 Oliver Building Pittsburgh, Pennsylvania 15222 By: David A.~Brownlee, Esq. Michael J. Lynch, Esq. Kenneth M. Argentieri, Esq. Attorneys for Plaintiff - County of Suffolk EDWARD 1M. BARRETT, ESQ. i Long-Island Lighting Co.. 1 250 Old Country. Road f'- Mineola, New York 11501 HUNTON & WILLIAMS Attorneys for Long Island Lighting Co. - 707 East itain Street' Richmond, Virginia 23219 By: W. Taylor Reveley, III, Esq. James E.' Farnham, Esq. i K. Dennis'Sisk, Esq. Lewis F. Powell, III, Esq. 'ALTIMARI, D.J.: Plaintiffs in two related lawsuits move to i i remand, pursuant to 28 U.S.C. S 1447(c), the instant 5 actions' commenced in the Supreme Court of the State of New York, Albany. County, and the Supreme Court of the-l State of New1 York, Suffolk County, respectively, back ~ J 1 j from whence they came. Defendant removed the actions to this Court under 28 U.S.C. S 1441(a) and (b) on the ? r l i , - - - - -. -e ~,--c,e, ---nn,,a- ,-.,--,w- ,,,,,a .---,a,n-, ,-ww,,,,r-x,-,- ,,,,r, ,v-

.~_.: .j :. 3 ~ 3, ~3 c . ground.that this Court has original jurisdiction under .'28 U.S.C. SS 1331 and 1337, because the actions arise under the Constitution and laws of the United States, particularly the-Supremacy Clause and the Fourteenth Amendment, as well as the Atomic Energy Act, 42 U.S.C. ^ S 2011 et_ sea. ("AEA") and its implementing regulations as adopted by the Nuclear Regulatory Commission ("NRC"). . Defendant cross-moves pursuant to Fed. R. Civ. P. 42(a) to co :solidate these actions with one presently pending ~ Citizens.for a_n, Orderly Energy before the_ Court, n Policy, Inc. v. County of Suffolk, No.CV-83-4966 p, . (hereinafter the " Citizens' action"). BACKGROUND ~ The principal underlying dispute between the = parties is whether Long Island Lighting Company's ^ ("LILCO") Shoreham Nuclear Power Facility ("Shoreham") i can be operated safely. As. Judge Cardamone recently i ~ observed, "The uncertainty about whether (Shorehaml can 'be operated safely has stirred deep public concern. t Shoreham's critics contend that as the beauty of the Acropolis symbolizes the Golden Age of ancient Greece, an unsightly, deserted nuclear power plant will symbolize Twentieth Century America. Its 3{ ~,- ,.7...._............. ~. - ..-= .2 y

y;.._... g.. - : 4 g_ -

- 3:

u.. t ~ ' defenders. claim that a safe-working nuclear plant ..producirig electricity, as in France, Britain, Japan and iGermany, will free America from dependence on foreign oil and symbolize the triumph of technology over the loss of natural resources." County of Suffolk v. Long Island Lighting Co., 728 F. 2d 52, 55 (2d Cir.z l984). Like Judge Cardamone, however, "we are not called upon to' answer these questions involving large benefits and risks. M. Neither must we answer' the question i < -f of whether the actions of the County of Suffolk (hereinafter the " County") in failing to participate in- . x,.. off-site emergency planning for'Shoreham are preempted ~by the AEA.. We need only decide'whether, LILCO and Mario .M. Cuomo properly removed these actions to the United ~ . States District. Court. The. County's complaint seeks a declaration that LILCO's implemention of.its radiological emergency ' response plan,- which is referred to as the " Transition Plan" (hereinafter the " Plan"), is unlawful and in . violation of..the Constitution and laws of the State of New York. Citing, N.Y. Const. arts. 3, 9; N.Y. Exec. Law, art. 2-B (McKinney 1982 & Supp. 1983); N. Y. Mun. Home Rule Law 5 10 (McKinney 1969 & Supp. 1983). 3 -e.o.e- ,,.....-_.o..n...n.. ~, ~ ~.

~

W 5

s

~ LILCO submitted the Plan to the NRC as' part.of the licensi$g proceedings for Shoreham. The County and the -Governor of~the State of New York, Honorable Mario M. Cuomo,having determined that no safety evacuation plan is feasible, took no par,t in submitting the Plan to the .NRC and state that they will not participate in I implementing it. Thus, the Plan was developed and c submitted to the NRC by LILCO alone. ~ Paragraph fifteen of the County's complaint i states that LILCO has created.the " Local Emergency b-si.;j/- Response Organization" (hereinafter the "LERO") for the purpose-of implementing the Plan. The LERO is staffed by_approximately two thousand (2,000) persons, most of whom are LILCO. employees and none-of whom are officials of the County.or the State of1New York we are told. Paragraph seventeen.of the County's complaint 4 states in part that: "In the event of a nuclear accident at Shoreham,.LILCO's Transition Plan pro-vides that LILCO, through its alter ego LERO, and without consent or approval - by, or participation of, Suffolk County or the-State of New York, will arrogate to itself functions purporting to pro-tect the health, welfare and safety of residents and transients within Suffolk County. The offsite emergency response ~ ~ to the accident for a distance of fifty / f N.: .. ~. s.

._ 4 - s _ _ 6 ,/ miles from that plant will, $nder 7LILCO's. Transition Plan, ' be under the management, direction and control of LILCO. Those public safety functions which are possessed inherectly by local and state government officials'for exercise through the police power will, according to LILCO's Transition Plan,. be possessed and exercised.by LILCO employees." Subparagraphs oS paragraph seventeen describe the 4 functions.LE:RO will perform in some detail. In paragraph nineteen of its complaint, the 1 County states.that "LILCO has asserted that it has the - ~ necessary legal authority to implement its Transition 7 Plan and 'to effectively protect the-safety and health of the public.'" Quoting, LILCO Transition Plan at p.

1. 4-l'.

Taking issue with LILCO's position, the . County claims that 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 subdivision of the State if there has been a proper delegation of authority from the State to such subdivision." ..~ s Complaint par. 20. Further, the County claims that the State has delegated its police powers within Suffolk County-only to the Government of Suf folk County, and j has not delegated its police powers to LILCO. .g, J e ofe .yo.-i... m. n u .--.J. L:..- -,.-.---.. -.';.:.--.-, - --.

._._.c : 7 .j-Accordingly, the County statss in paragraph twenty-one of the complaint that: "An actual.and justiciable contro-versy exists between the plaintif f and the defendant concerning the legality, under the constitution and laws of the' State of New York, of LILCO implementing'its Transi-tion Plan. A resolution of this dispute is necessary because LILCO is representing that it has authority under the laws of the State of New York to implement the Transition Plan. . which usurps'the police power. authority of the State of New I York 'and Suffolk County -- and LILCO is implementing that Plan.. LILCO's ~ acts in implementing such (a plan] ' have m s,C violated, are violating and will.vio-i%~.~ late the constitution and laws of the State of New York." 6 The County seeks a declaratory judgment, pu.rsuant to N.Y. Civ. Prac. Law 5 3001, that-LILCO's implementation of its Plan is unlawful and illegal under the Constitution and laws of the State of New York. DISCUSSION b 281U.S.C. $ 1441(a) and (b) provides: "(a) Except as otherwise expressly pro-vided by Act of Congress, any civil action brought in a State court of .which the district courts of the United States have original -jurisdiction, may

• w e.o.

-....... -.... n..... ~.. -.t---.-.-...-.--.h--..i- -..-.-.-

j...

y. 8 Ik l' I

be' removediby. the defendant or the

~ defendants,: to the district court of ' the United States-for the district and division embracing the place where such action is pending. '(b). Any civil action of which the district courts have original 1 jurisdiction founded on a claim or right arising under the Con-stitution,--treaties or. laws of the United' States shall be removable without regard to citizenship or residence of the parties. 'Any other such' action shall be removable _only if none of.the parties in interest properly -joined and served as defendants is a: citizen of the State of which such action ~is brought." i In-the instant action, since there is no ~ .r ,,/ diversity of citizenship between the parties, see 28 . U. S. C.' ' S 113 3 2, the -dispositive question on the issue of ' ~ -whether removal was proper under section 1441, is . whether the County's complaint states-a claim " arising under the Constitution, laws,.or treaties of the United States." 28 U.S.C. 5: 1331. ~ On a motion - to remand, the removing defendant bears the burden of establishing that the case is within the Federal Court's remova' jurisdiction. t .~ .~ Irving Trust Co. v. Century Export & Import, S.A., 464 F.'Supp. 1232, 1236 (S D.N.Y. 1979). Epecially is this so when " plaintiffs strenuously argue that they are not relying-on any federal substantive right and no 7 N.h ' ~.. %g ..,..._.._.,..,.-,._.._._,.___.,__....__.m.,.._.-

__,.. n s. _ 9 s. ~ u

c. I _ +

_.f-. . r.- reference to a_ federal provision is made in plaintiff's complaint." Barnett v. Faber Coe &_ Greqq, Inc., 291 F. 'Su'pp. 178, 180'(S.D.N.Y. 1968); Jody Fair, Inc. v. Dubinsky, 225-F._Supp. 695, 696 (S.D.N.Y. 1964). It is hornbook law that an action can be removed from State to F.ederal C.ourt only if it might have been brought there originally. .see, Wright, Hornbook g-the Law g Federal Courts,-S 38, at 148 (3d ed. 1976); see also 14 Wright, Miller & Cooper, Federal __ Practice and Procedure, S 3721, at 516 (1976); 1AJ Moore,' Moore's Federal-Practice, par. O. 157[5], at 118 + '(1983); 2 Cyclopedia o_f Federal Procedure, S 3.12 (3d ed. 1980). Stated more precisely,-and recently by a Judge of this Court to two of the-parties herein, "[t]he general rule. .-is that a case can be removed from state court only if the-federal court would have had original' jurisdiction." County of Suffolk v. Long Island Lighting Co., 549 F. Supp. 1250, 1254'(E.D.N.Y. 1982), citing, Arkansas v. Kansas & Texas Coal Co., 183 U.S. 185, 22 S. Ct. 47 (1901); Illinois v. Kerr-McGee Chemical' Corp., 677 F.2d 571 (7th Cir..) cert. denied, 10~3 S. Ct.'469' (1982). f LIn order to support removal where it is Q) - predicated on the plaintiffs, stating a claim arising . e.o. ..--.,m.,... .-,-_.. _ _,..__~-.~._..,___.,....-,_ _ _. _ _._ _'.._,.... _,- -.. _ -..- _._._.___- _~

._n......-. p.. r 10

=

i t f v Lunder the' Constitution, laws or treati'es of the United -States, as here, it is well established that the ~ . existence of a Federal question must necessarily appear on the face of the' plaintiffs'. complaint. Phillips Petroleum Co. v. Texaco,;Inc., 415 U.S. 125, 127-28, 94 4 S.'Ct. 1002, 1003-04 (1974); Gully v. First National iBank, 299 U.S. 109, 112-13, 56 S. Ct. 96, 97-8 (1936); Tennessee-v. Union and Planters Bank, 152 U.S.

454, 460; 14 S. Ct. 654, 656'(1894).

Thus, while "the i r statutory phrase ' arising under the Constitution, laws, Iz h/ or. treaties of the United States' has resisted all . attempts to frame a single, precise definition for determining which cases fall within, and which cases . fall.outside, the original-jurisdiction of the district courts," Franchise Tax Board of the State of California

v. Construction' Laborers Vacation Trust For Southern California, U.S.

103 S. Ct. 2841, 2846 (1983) (hereinafter " Franchise T&x Bd."), and "[w]hile the. precise boundaries to which Federal jurisdiction extends are'not~ matters upon which all agree," Powers v.. South Central' Union Food & Commercial Workers Union and-Employers Health and Welfare Trust, 719 F.2d 760, 763.(5th' Cir. 1983), one " powerful doctrine has zu g,)

• w P-o d '

e.+..as-nsean. non . _,. _ _ _ -.,,. ~ ~. _.. -.

. ~. -._ ..u ...,.j - c-i. II 11 i, - t j.

• ~

u. -.- l emerged" whose vitality is unquestioned - - the s- "well-pleaded complaint' rule." See, Franchise Tax Bd., 103 S. Ct. at 2846. In

supra, U.S. at Franchise Tax Bd_.,_ supra, the Supreme Court, quoting from its prior decision in Taylor v. Anderson, 234 U.S.

t 74, 75-76, 34 S. Ct. 724, 724 (1914), described that doctrine as foi. lows: i< ."[W]hether a case is one arising under the Constitution or a law or treaty of ~ l the United States, in the sense of'the jurisdictional statute. . must be 'e determined from what necessarily appears in the plaintiff's statement of CI his own claim in the bill or declaration, . unaided by anything alleged in anticipa-tion or avoidance of defenses which it is thought the defendant may interpose." U.S. at , 103'S. Ct. at 2846. See, Phillips Petroleum Co..v. Tc;xaco, I.c., supra, 415 U.S. rt 127-28, 94 S. Ct. at 1003-04; Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 663, 81'S. Ct. 1303, 1307; Gully v_. First National Bank, supra, 299 i U.S. at 113, 57 S. Ct. at 98; Louisville &,Nas vh ille R._, [' n Co. v. Mottley, 211 U.S. 149, 152, 29 S. Ct. 42,43 (1908); Tennessee 3. Union and Planters' Bank, supra, 152 U.S..at 460-61, 14 S. Ct. at 656; Metcalf v_. City of Watertown, 128 U.S. 586, 589, 9 S. Ct. 173, 174 j P 049 .,9e0-890. stes w ~,. - -, ~. _..., _ _,, ..-, _ _ m. _ -. _. _.

s 5- - - .-J 12 <g D l. ~ (1888). Under the' doctrine and "[ flor.better or worse," "a defendant may not remove a case to Federal Court.'unless-the plaintiffs' complaint estalishes that - the case ' arises under' Federal. law." Franchise Tax ^ B_d,., supra, U.S. at_ 103-S. Ct. at 2847. d Accordingly, a~ case does not arise under Federal law because of a defendant's assertion of.an issue of Federalzlaw in the pleadings or in the petition for l removal, Phillips Petroleum Co. v. Texaco, Inc., supra,_ r, Ct..at 1003, nor.may a . 415 U.S. at 127-28, 94 S. [ ' Federal question be inferred from a defense pleaded or - one expected to be made. Gully v. First National Bank, supra, 299 U.S. at il3, 57 S. Ct. at 98; Debevoise v. . Rutland Railway Co., 291.F.2d 379, 380 (2d Cir.), cert.

denied, 368 U.S. 876l 82 S. Ct. 123 (1961).

Taken one step further, a. defense of Federal preemption, like any other defense, cannot serve as a basis for Federal jurisdiction. Franchise Tax B_d., d

supra, U.S. at

& n. 11, 103 S. Ct. at 2848 a' n.11,.. citing with atproval, Trent Realtv Associates v_. First Federal Savings 4, Loan Ass'n, 657 F. 2d 29, i, 34-35 (3d Cir. 1981) (Home Owner's Loan Act); First National Bank of Aberdeen v. Aberdeen National Bank, y y) E049

• • • +944e 3 4 0 0 810 s 194 9 N.

-e + e -+ - - ,_..,-..-,r,m..,_ .-...-c ,,.y.,m,.,,-m,.m_ mym., y, .m _m.

'~ L 13 ff^ 627-F.-2d 843, 850-52 (8th Cir. 1980) "(National Bank l Act);", State'of Washington v. American League of Professional Baseball Clubs, 460 F. 2d 654, 660 (9th Cir.11972)i(Federal Antitrust Laws). The cases which have embraced this view are numerous, see, cases cited j i above in-Franchise Tax Bd., supra; Powers v. South

• I

~ Central Union Food i Commercial Work'rs _ Union, supra, e 1 719 F. 2d at 764 (ERISA); Illinois v. General Electric Co., 683 F. 2d 206, 208 (7th Cir. 1982); cert. denied I I sub. nom Hartigan v. General Elecric Co., 103 S. Ct. 4.h r 1891 (1983); Illinois v.-Kerr-McGee Chemical Corp., x i supra, 677 F. 2d at 577-78 (AEA); Nalore v. San Diego-Federal Savings i Loan Ass'n,- 663 F. 2d 841, 842 (9th Cir. 1981), cert. der.ied,. 45 5 U.S. 1021, 102 S. Ct. I- -1719 (1982)-(Home Owner's Loan Act); Guinasso v. Pacific First Federal Savings i_ Loan Assoc., 656 F. 2d 1364, 1366 (9th Cir. 1981); cert. denied, 455 U.S. 1020, 102 S. Ct. 1716 (1982) (Home Owner's Loan Act); t Madsen v. Prudential Federal Savings i Loan Assoc., 635 F. 2d 797, 801 (10th Cir. 1980), cert. denied, 451 U.S. l~ 1018, 101 S..Ct. 3007 (1981) (Home Owner's Loan Act); ] .Home Federal Savings 3 Loan Assoc. _v. Insurance Department, 571 F. 2d 423, 426 (8th Cir. 1978) (Home s t f l ~ P.e4e .j 1 l ~

v;

y._

it ,l

l

~ i N.

Owner's Loan Act); Bailev v.~ Logan Square Tycographers, Inc.,1441 F. 2d 47,.51-52 (7th Cir. 1971) ( copyright ),

and ~while there is authority to the contrary, 9 after the Supreme' Court's decision in Franchise Tax Bd., supra, it can n'o-longer _be doubted that, as a general rule, a defense-of Federal preemption does not provide - a basis for Federal jurisdiction where one is otherwise lacking. For example, in Illinois v. Kerr-McGee I Chemical Corp., supra, 677. F. 2d 571, the State of ~ 1; Illinois filed a complaint against Kerr-McGee in the - Circuit Court of Illinois for DuPage County. The complaint alleged that Kerr-McGee's operation and maintenance, under license from the NRC, of a site used ~ -to possess and store thorium ores, a nuclear source material subject to regulation by the NRC, 42 U.S.C. 5 2014(2),' violated the Illinois Environmental E Protection Act and other state statutes pertaining to ,[ the disposal of hazardous wastes. Kerr-McGee had been working since-197.5, at the'NRC's diret". ion, to i formulate a plan for decommissioning and stabilizing i f .the site, which plan Illinois had taken the opportunity .q ]* to comment on. ' i _) j, p P.04 e i' e -...--. n.. a s... s i e s 4-s s. ~ LU.

7 u.

y;.. T%- -l; 15 4 sc _ ~ 9,jS.' . t; Kerr-McGee petitioned the Dist'rict Court to ' remove: the-action from State to Federal Court on the ground that-the complaint raised a Federal question. Illinois ~thereafter moved to remand the action to State Court, arguing that_it pleaded no Federal cause of < action. The District Court denied Illinois' motion, finding ~that~the Federal regulatory scheme under the AEA had preempted state regulation of radioactive waste t disposal, and that-interpretation of Federal law was I thus necessarily involv,ed in-the complaint. Subsequently, the District Court granted Kerr-McGee's -motion to dismiss the complaint, " finding that Federal law conferred exc1'usive jurisdiction upon the NRC to-regulate radiation hazards and, therefore, preempted state and local-legislative and administrative regulatory schemes." 677 F. 2d at 574. l i On appeal, the Court of Appeals stated that Illinois' complaint relied only on' alleged violations of state law and regulations, and therefore raised no .a Federal'cause of action. Id. at 576-77. As to Kerr-McGee's argument based on Federal preemption of

i j

State law, the Court stated that: "We do not agree.... i that a defendant can have a state law claim removed to -r ,a '5ts/- l l 4 t s.

(.._ a. 16. w. je; ~ v., n federal court merely by uttering the word preemption." Id. at 577.- The Court saw no reason for treating a defense ~of Federal preemption differently than any other defense based on ' Federal law.. pi. at-578. Consequently, the Court reversed the. District Court's order denying Illinois' motion to remand and remanded l the action to bhe District Court with instructions to- -remand it to State Court. Id. In addition, it noted that since the action was improvidently removed'from g State to Federal Court, the District Court's. ~ ,c; ) consideration of the issue of preemption was improper. EId. at 578' n. 12. Similarly, in County of Suffolk v. Long Island Lighting Co., supra, 549 F. Supp. 1250, a case which LILCO places great reliance on, the County brought suit on behalf ofLitself and all similarly situated LILCO -ratepayers claiming that Shoreham suffered from serious deficiencies in design and construction and that ratepayers had been wrongfully overcharged to finance "the. escalated construction costs. Id. at 1252. More importantly, the complaint contained many references to defendants' violations of and/or non-compliance with r, NRC regulations governing the construction of Shoreham. ~~ i s/ - I

• on

~~.

h I a.. 1 ~ . Seeiig at 1253-54 & n. 5. Plaintiff" pled actions sounding in negligence, strict-liability, breach of warranty, breach of contract and misrepresentation and concealment. Id. After the action-was ' removed to - Federal Court, the County moved to remand. . Judge Bartels, with characteristic sound . reasoning, denied the motion. After a general discussion of the law, he noted that' plaintiffs' complaint relied on defendants' violation of the AEA i 6 and NRC regulations. Thus, a Federal question appeared .on the face of plaintiffs' complaint and was an essential element in establishing its right to relief. i Id. at 1256. Having denied the: County's motion, in dictum ) L Judge Bartels noted that the parties had devoted much . effort to-the issue of preemption. Therefore, while unnecessary to his decision, he nevertheless turned to p I .an examination of the issue. Af ter analyzing several 6 cases, including the decision in Illinois v. Kerr-McGee chemical Corp., supra, Judge Bartels theorized that 4 l removal'was proper where Federal law not only s y preempted, but also provided relief, whereas in cases c-where ' preemption served only as a defense and the 'e 'j 't j. t a 1

a. -

~

1 ) 4 +, c. i complaint set forth no claim upon which Federal relief could be granted, removal was inapproprite. Applying ~ that principle to the case before him, Judge Bartels found that "it is readily apparent that the [AEA], as . presently. construed by the Courts, does not establish a preemptive remedial scheme. . that would potentially l accrue to the benefit of this plaintiff for jurisdictional purposes." Id. at-1258. Thus, while Judge Bartels denied the motion to remand, he rejected y defendants' jurisdictional argument based on AEA s-h preemption of plaintiffs' claims. . Applying the foregoing principles to the cases at hand, we are forced to conclude that the plaintiffs' actions do not arise under Federal law and were improvidently removed to this Court. Plaintiffs seek a declaration, pursuant to New York's Civil Practice Law ~ and Rules, that certain parts of LILCO's Transition Plan are illegal under state law. The complaint does

not mention or rely on defendants' failure to comply with, or its violation of, any Federal statutes or regulations.

Cf., County of Suffolk v. Long Island I Lighting Co., supra, 549 F. Supp. at 1256-57.

Indeed, i

y in pointing to the existence of a justifiable 3 15- ) i l i l P oas j 'l s. s

= ~,- - -- ~ .g W 19 ~ %. j~ e controversy, the complaint' cites LILCO s Transition Plan's statement-that New York State law does not prohibit LILCO'from performing the~necessary functions -to protect the public. Instead, Federal law arises l' only by way of defendants' assertion that the AEA preempts plaintiffs' causes of action. As the cases, in our opinion, make clear, where no Federal claim can be found on the face of; plaintiffs' complaint and Federal law is not'an essential element in establishing its right to relief, a defense of Federal' preemption cannot N serve as a basis'for Federal jurisdiction.- Here, a Federal claim cannot be found on the face of-the plaintiffs' complaints, and Federal Law is certainly ~ not'an essential element in' establishing their right to ~ relief.- In fact,'under prevailing law, they could not seek relief in this' Court under the AEA or its ' implementing regulations. Of course, we do not suggest that the fact that plaintiffs could not have originally ] commenced this action in this Court under the AEA, which law defendanta claim preempts plaintiffs' state l law claims, necessarily bars removal of their actions to the Federal Court. So long as a Federal question t ./ 7 appears on the face of plaintiffs' complaint and 3 M )- = "9 se _-_..-,_._.-,.._._o,._...._..

1 2C' e + u_. -Federal law is'an essential elcment in' establishing- ~ their right.to relief, removal'would be proper.

Such, however, is not the case here.-

Recognizing, as it must, the_ force of the Supreme Court's decision in Franchise Tax Bd.,

supra, LILCO advances arguments along several fronts in

' seeking to persuade-us that jurisdiction in this case ' rests on more than just its assertion of a Federal ' preemption deferise. i -First it argues that Federal law is the f L g ~ necessary source of plaint'iffs' cause of action and, c J:7 second, that even if State law is the source of the cause of action, it nonetheless requires' resolution of a substantial question of Federal law in dispute i between the~ parties. See LILCO Memorandum of Law in Opposition to Motion for-Remand at 13, 13-26, citing Franchise Tax Bd., supra, U.S. at 103 S. Ct. h at 2848. In support, it argues that Federal law is the source of plaintiffs' cause of action since "[t]he .l-entire field.of radiological health and safety, as it L relates to the construction and operation of a nuclear power plant, is preempted'by the Federal Atomic Energy j,

Act."

LILCO memo at 15,. citing, Pacific Gas 3, Electric

f.

V -o a w

'.,;7.~ e-s 21 (-A, ~ . g.fv.. State Energy Resources' Conservation and Dev. Comm'n', 103 S. Ct. 1713 (1983). "Thus, 'any claim that LSuffolk County may have to prevent the operation of Shoreham for reasons of radiological. health and safety depends.'upon Federal ~ law." LILCO memo at 20. LILCO's argument is simply incorrect as a matter of law. -Plaintiffs' complaint specifically asserts.a claim under New York's Declaratory Judgment Act, N.Y.Civ. Prac. Law 5 3001 (McKinney 1974), and i 4 l relies upon alleged violations of New York State-law. f.D. iff Whatever maycbe its " source" in the broad sense of the s. word, "the ' law that creates the cause of action' is state law, and. original 1 jurisdiction is' unavailable 'unless it appears that some substantial disputed question of Federal-law is a necessary element of one o'f_the well-pleaded state claims. Franchise Tax Bd., supra, U.S. at 103 S. Ct. at 2848. We must proceed then to the second prong of LILCo's argument, namely that a substantial disputed question of Faderal. law is a necessary element of plaintiffs' State law claims. Here, LILCO argues that L the County's complaint, which alleges that in the event + of a nuclear accident LILCo will perform certain public 4 i l 4-t-

i.

i ao e 6e

• ue

+ -,, ~ - - -, - -.... - - -, - -.., - -, -, - - - -. -. - -,. - - - -. - - _ - - - -, -,. ~. - - - ~ - - - -

.__ w.. q -.- - - 22 safety functions which are possessed' inherently by J ocal and. State government of ficials for exercise through the police power, assumes that LILCO would have obtained a Federal operating license from the NRC. "In that context,"_LILCO's. argument continues, "to decide' whether LILCO's conduct would be legal, one would first have-to determine whether LILCO had the authority under Federal law to perform those functions necessary to protect _the public health and safety in the event of a i radiological emergency at Shoreh'am." LILCO memo at 21. =< .. J). Having posed the question, LILCO next answers it by .,.~ stating that NRC regulations require it, as licensee, to perform the safety protective actions alluded to in paragraph 17 of the County's complaint. Id. at 25, citing NRC regulations. "Thus," LILCO's argument concludes, "Suffolk County's claim that LILCO lacks legal authority to proceed with the Transition Plan depends on the proposition that, under Federal law, states and localities have the exclusive authority to protect the public health and safety in the event of a i radiological emergency at a nuclear power plant." LILCO memo at 26. ) -) ,I s_ m P cde ] re...eme se ases ases ~

. - --. m c. - -- -. c, 23 n / Again, we must disagree with LILCO. Initially, just.as a defense of. Federal preemption may ~ not scive as a basis for " arising under" jurisdiction, so may it not serve as the substantial disputed question of Federal' law Nhich is the necessary-element of plaintiffs' state. law claims. ~ Under LILCo's

reasoning,.which while not necessarily illogical is, nevertheless, not in accordance with the current state i

of tho' law, every case where a defense of Federal l .[ preemption-is raised would satisfy the " substantial i C \\,,3 . disputed Federal question" requirement, rendering sillusory the prohibition of basing Federal jurisdiction on a-preemption defense. More specifically;-LILCo's e . argument is based not'on plaintiffs' claim that State law would be violated by LILCO's performance of certain safety functions, but on'LILCO's claim that NRC i regulations require,i_t_ to perform these safety measures. l-t LILCO's argument, however appealing, is in practical terms no more than a claim of.a defense of Federal E j ' preemption. If tho' Court were to follow this argument, I

i we would have to close our eyes to the present state of i,

the-law.. 4 ^) 1 s i L l a-. 2 i a... y

v. 24 ~ LILCO makes one final argumen't in support of removal. It contends that the AEA has " completely displaced state regulation of the health and safety -aspects of nuclear power plant operation" and that the AEA, therefore, " completely preempts any cause of 1 . action. by Suf folk County under New York' law." LILCO memo of law at 26, 30. See,~ Franchise Tax Bd.,

supra, U.S. at 103 S. Ct. at 2853-54; Avco corp. v.

Avco' Lodge No. 735, Int'l Assn. of Machinists, 376 F. i 2d 337,-339-40 (6th Cir. 1967), aff'd, 390 U.S. 557, 88 [ S. Ct. 1235 (1968). LILCO relies on the Supreme Court's statement in Franchise Tax Bd., suora, that "[i]f a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause.of action necessarily arises under' federal law." U.S. at 103 S. Ct. at 2854. The " complete preemption" exception to the ,j general rule that a defense of federal preemption may l not serve as a basis for federal jurisdiction, however i broad, is only applicable to those situations where the I federal law that completely preempts plaintiff's state law action also provides a federal cause of action. WN i 7 ....... - a........... i n.o.. .l =+

m

4,

~ y 25' ~l M, A< < -'otherwi'se-the federal preemption claim 'is merely a defense, albeit.a complete one, to a state law cause of action and under'well-settled law not a sound basis for federal-jurisdiction. Thus, " complete' preemption," in the _ jurisdictional sense,_ connotes not only I- - displacement of state law in a given area, but also il the availability of a federal right of action in its-l stead. t In the instant actions, the AEA does not i f. supply the plaintiffs with a federal cause of action to P Ey%. l . 1 replace their-allegedly preempted state law claims. ' See 42 U.S.C. $ 2271(c); see, e_.g., County of_ Suffolk

v. Long Island Lighting Co., supra, 728 F. 2d at 59; f

Simmons v. Arkansas Power & Light Co.,'655 F. 2d 131, t -l_ 134 (8th Cir. 1981); Liesen v_. Louisiana Power & Light Co., 636 F. 2d 94, 95 (5th Cir. 1981); Susquehanna [ Valley Alliance v. Three Mile Island Nuclear, Reactor, f 619 F. 2d 231, 237-39-(3d Cir. 1980), cert. denied, 449 U.S. 1096, 101 S. Ct. 893 (1981). Thus, we.do not believe that Avco supports - 4 removal jurisdiction under the circumstances of this - case.- See Franchise Tax Bd., supra, U.S. at 103.S. Ct. at 2855; see generally, 14 Wright, Miller & 5 ) %,s ~*** i i s w.

__q ~ 26 y '~ ,5 i Cooper, Federal Practice and Procedure *, S.3722, at 10 Supp. 1983, p. 199-200 (1976 & Supp. 1983). III. Our decision.today far from ends the present lawsuits or controversy. It is:likely that this matter 3 will move speedily to resolution in State Court where LILCO may, of course, raise its defense of Federal preemption. While State Court judges are'not asked'to apply Federal law everyday, it is.a task I well know to i be within their capabilities. Indeed, I am confident [) they will do so with the same open mind and sense of responsibility with which this Court addresses so-called diversity cases which ask us to apply the law a[ of the states. Further,Eif the State Court rejects a defense of Federal' preemption, that decision may ultimately tut reviewed on appeal by the United States Supreme. Court. See, Franchise Tax Bd.,

suora, U.S.

l m i at ,-103 S. Ct. at 2848 n. 12. I i IV. In light,of the above discussion, LILCO's 3 i motion to consolidate the cases at bar with the 1. a Citizens' action is denied, since Rule 42(a), Fed. R. t 1 Civ. ' P.,' authorizes consolidation only of cases S q,f I O P cas r,,....~.............. x. ~~

3 27 I a- .~ ., -m , '. '(. "pending before the court." See, Oregon Em Producers ^ . v. Andrew, 458 F. 2d 382'(9th Cir. 1972);.Spirt v. Teachers Ins. and Annuity Ass'n,-93 F.R.D. 627 [ (S.D.N.Y. 1982); Sanco o,f, Florida, Inc. v. Clark, 473 F. Supp. 902'(M.D. Fla. 1979); Appalachian Power Co. v. 3 Region Properties, Inc., 364 F. Supp. 1273 (W.D Va ~1973); Facen v. Royal Rotterdam Lloyd S.S. Co., 12 F.R.D. 443 (S D.N.Y. 1952). CONCLUSION j. Plaintiffs' motions to remand the within r 2 actions to State Court are granted.- Defendants' motion 4 to consolidate is denied. SO-ORDERED. Dated: Uniondale, New York- / .-j June 15, 1984. f Frank X. Altimari U.S. District Judge . i.. i .g ; .i - s a 1

4.....-

......_,_-...,._.,.,....._.,,_.,_....,_,_,,..______,___m,,,,_,,

~ Nr 't =.... = FOOTNOTES 1. The action by Mario M. Cuomo against LILCO was originally commenced in the State Supreme Court, Albany County, and removed to the United States District Court for'the No'rthern District"of New York. On May 17, 1984 the Honorable Roger J. Miner ~ ordered that the action be transferred to the Eastern District of New York. In . addition, prior. to removal the parties agreed to i transfer the action to the State Supreme Court, Suffolk County, where it would be consolidated with the County of Suffolk's (the " County") action. 2 Mario M. Cuomo's complaint is practically identical to the County's complaint. _. e too seeks a judgment H declaring LILCO's Plan to be violative of New York i , State law.. For purposes of convenience and economy, we -- will-focus on the County's complaint in addressing the c e instant motions. Indeed, in opposing the Cuomo motion, N .LILCO relies on its brief in opposition to the County's motion. 3 Paragraph seventeen'of the Cuomo complaint likewise alleges that the Plan violates N.Y. Const. irts. 3, 9; N.Y. Exec. Law art. 2-B; and N.Y. Mun. Home Pule Law i .5 10. In addition, paragraph thirty-three alleges that j LILCO's implementation of its Plan would also violate the following ' state laws: .N.Y.. Agric. & Mkts. Law-55 16(24), 16(27), 16(35), 71-1,'202-b (McKinney 1972 & Supp. 1983). 1. 3 i .N.Y. Exec. Law-SS 22(3), 23(7)(b) & (c), 28(1), 28(2)(a) & (b) (McKinney 1982). '.l N.Y.-Penal Law 5 195.05 (McKinney 1975). I N.Y. Pub.. Health' Law SS 201(1)(k) & (1) & (r), 1 206(1)(a) & (k),-1110 (McKinney 1971 & Supp. 1983). N.Y. Veh. & Traf. Law SS 1110, 1114, 1602 (McKinney 1970 &,Supp. 1983). m e ,N. f 8 ~ f i ) ~ 4on 4 ,,..... a.....u..... s

T 2 a-. ~ ~ u(. ~~ 4 The County's complaint states that: "In the LILCO Transition Plan, among other things LILCO employees, and not any local or state government official, are designated (a), to decide what actions should be taken to protect che' health, welfare, and safety of persons in the' EPZC; (b) to determine 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 i emergency, should be. evacuated; r. (c) to advise Suffolk County resi-4 dents and transients, through 3. %- y,; announcements on the Emergency Broadcast System,. press statements and press conferences, what specific actions they should.take to protect their health, welfare and safety;_ (d) to activate emergency sirens which LILCO has installed through-i out the ten-cile 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 roads-within Suffolk= County through various means including blocking lanes, altering roads to one-way flow,. erecting barricades and in-stalling road signs; (f) to control and direct the removal and displace-ment of more than one hundred thousand residents and transients from the ten-t ~ M mile EPZ; and (g) to establish controls l-over. drinking water, milk, food, crops and livestock in the fifty-mile EPZ, an effort which could affect millions of People." s ,) l ^ '- -. q m. m , _ -..., _ -. _. _ _.... _ _ _..,.. -,., _. - _ ~

_ y t 3 y! r

(

5 More specificily, the County quotes LILCO's Transition Plan at p. 1.4-1: "[N]othing in New York State law pre-vents the utility from performing the necessary functions to protect the pub-lie. To the contrary, Article 2-B of New York State' Executive Law, S 20.1.e, makes it the policy of the State that State and local plans, organization arrangements, and response capability 'be the most effective that current cir-cumstances and existing resources allow.'" Complaint par.-19, cuotina'Iilco transition plan at p. i 1.4-1. (emphasis added). (*

( g 6

Paragraph twenty-two of the. County's complaint states that: "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 q'estion of the lawfulness of the u Transition Plan under the Constitution and laws of the State of New York should be resolved by. the courts of the State of New York." l l Paragraph twenty-three further states that: " Executive officials within the Federal Er argency Management Agency, which is reviewin'g the LILCO Transition Plan at the request of the NRC, have stated, in i official correspondence to the NRC that i it is essential that a determination be 1 made as to whether LILCO has legal autho-J- ?_ )' ' rity to assume - management and control V j-

o.. -

4,....... I

7 ......~... 4 , (e ~ k(. ~ I of the offsite emergency res'ponse to a nuclear accident at Shoreham under the laws of the State of New York."- See also, paragraphs nineteen and twenty of the Cuomo complaint. 7 Section 3001 of New York's Civil Practice Law and Rules provides as follows: "The supreme court may render-a declaratory judgment having the effect of'a final judgment as to -the rights and other legal relations i of the. parties to a justiciable contro-r versy whether or not further relief is I or could be claimed. If the ccert de- ' (? [' ) I clines to render such a judgment it j shall state its grounds."- N.Y. Civ..Prac. Law 5'3001 (McKinney 1974). -i j 8 Further support-for this proposition may be found in the following cases as well: .Ia Freniere v. General Electric Co., 572 F. Supp. 857 (N.D.N.Y. 1983); Martin

v. Wilkes-Barre Publishing Co.,

567 F.Supp. 304 (M.D. Pa. 1983);-Schmidt v. National Organization for Women, j' - 562 F. Supp. 210 (N7D.Fla. 1983);.Sarnelli v. Tickle, ~ 556 F Supp. 557 (E.D.N.Y. 1983); Buice v. Buford l Broadcasting, Inc., 553'F. Supp. 388 (N.D. Ga. 1983); Chappell v. SCA Services, Inc., 540 F. Supp. 1087 (C.D. i Ill. 1982I; Eureka Federal Savings & Loan Association of San Francisco v. Flynn, 534 F. Supp. 479 (N.D. Cal. 1982); Drivers, Chauffeurs & Helpers Local Union No. [ 639 v. Seagram Sales Corp., 531 F. Supp. 364 (D.C.D.C. 1981); Schultz v. Coral Gables Federal-Savings & Loan 4 ..l Association,-505 F. Supp. 1003 (S.D. Fla. 1981)I 5l Freeman v. Colonial Liquors, Inc., 502 F. Supp. 367 (D. i Md. 1980); Smart v. First Federal Savings & Loan Association of Detroit, 500 F. Supp. 1147 IE.D. Mich. r .," (j i 1980); Turner v. Bell Federal Savings & Loan . s/ l i P.043 res-ena-o.se se s tem.ste s i .--. _.., _,.. - _ _ ~,,. -,, ~.. ..,m-.. -, - -.., _ _,, _ _. ,._m

m. _. - _...,_._,..,__ _~.-_ _,,___,,_...

'_.,.<r-- ~

.= NS ' y ye; ~ .s-1 em - l'[ l e J 5 Association, 490 F..Supp. 104 (N.D..I 1. 1980); Lon_q Island Railroad-Co..v. United Transportation Union, 484 F. Supp. 1290 (S.D.N.Y. 1980); Eure v.-NVF Co., 481 F. Supp. 639'(E.D. N.C. 1979); Mabray v. Velsicol Chemical Corp., 480 F.Supp. 1240 (W.D. Tenn. 1979); State of ~~ California v. Glendale Federal Savings & Loan i Association, 475 F. Supp. 728 (C.D. Cal. 1979); State of Nevada v. King, 463lF. Supp. 749 (D. Nev.'1979); e Oklahoma v. United Health-& Retirement Association, 436 F. Supp. 553- (W.D. Okl. 1977);-Borzello v. Sooy, 427 ,1 F. Supp.332-(N.D. Cal. 1977); Marquette National Bank of' Minneapolis-v. First National Bank of Omaha, 422 F. Supp. 1346 (D. Minn. 1976); committee of Interns & Residents v. New York State Labor Relations Board, 420 F. - Supp. 8 26, (S.D. N.Y. 1976); Johnson v. First Federal Savings &-Loan Association of Detroit, 418 F. Supp. 1106 (E.D. Mich. 1976); State of New York v. Local 115 . Joint Board, Nursi ng Home & Hospital Employees Div., .r' '412 F. Supp. 720 (E.D.N.Y. 1976); Lowe v. Trans World (; > ' Airlines,,Inc., 396 F. Supp. 9 (S.D.N.Y. 1975); l application of State of New York, 362 F. Supp. 922 (C.D.N.Y. 1973); see also,.lA J. Moore, Moore's Federal

5..

Practice, par. 0.160(4], at 237-38 (2d ed. 1983); 14 Wright, Miller & Cooper, Federal Practice and LProcedure, S 3722, at 1983 Supp. p. 199-200 (1976'& + Supp. 1983). 9 LFor a listing of such cases see, e.g., First National Bank of Aberdeen v. Aberdeen National Bank, supra, 627 F.2d at 850 (collecting cases); La Freniere v. General Electric Ce.3 572 F. Supp. 857, 860 (N.D.N.Y. 1983) Tic' le, 556 Ps Eugp. ni/] (collecting cases); Sarnelli v. A 557, 560 n. 6 (E.D.N.Y. 1983) (collecting cases). 10 r / LILCO also argues'that in the context of declaratory relief,."the courts look to the nature of the threatened conduct or action to determine whether the l complaint raises a Federal question," and that "[i]f the threatened. action is inevitably Federal in nature, then Federal jurisdiction exists." LILCO memo of law t( i 'at 1:2 n. 2. To the extent that LILCO asserts by this 1 % L -argument that removal jurisdiction is broader in the M :). i P o4o ......._3,..:io..u. ) ~.. a 4 .. - ~... _ _ _. _... -.... _ _ _ ~ _.. _.. _ _ _ -.. -. -.. -, - _ -... -., -. _. - - _ -..

6 A t' case Lof state declaratory judgment actions, we reject this_ argument. Moreover, the threatened conduct or action in this case is-LILCO's alleged violation of state law by implementing a Transition Plan which, whether consistent or not with Federal law, is claimed to-violate State law. Finally, it claims that.if remand is granted, duplicative litigation will take_ place in State and Federal Court. However,- the fact that both the resources of the State and Federal-Courts, and the parties to the actions, will not be well served is not !a. persuasive ground for removal. Unfortunately, one side-effect of strict application of the well-pleaded j complair.c doctrine may be a bad result. In addition, the Citizens' action and the cases at bar simply do not raise identical issues. i j j j. I .i f l 1 ~ 1 J -u

1. Pe=esGW-89 80 8905 894 8 P 049 1

..m--

~.

_ _, _ _ __,___ [_- _ _j

.g 9. Statutes Allegedly Violated . Statutes Allegedly Violated As Contention As Listed in Contentions As Listed in State.Cout1_pomolaint Penal Law $$ 190.25 1 . Di rec ti ng t ra f fic .N.Y. Veh. & Tra r. L aw $$( 3 ), 195.05, 240.20(5). N.Y.. Penal Law $ 195.05 1102, 1602 N.Y. T ransp.

• Corps. Law $ 30 N.Y.

N.Y. T ra n sp. Corp. Law $ 30: ' N.Y. Veh. & T ra r. Law i 1602 N.Y. Veh. & Trar. Law $5 1110, 1114 '2. 'Olocking roadways N.Y. Penal Law R$'190.25(3), 195.05, 240.20(5)- N.Y. Penal Law I 195.05 g od channe l i ng t ra f f ic .N.Y. Veh. & Trar. Law $ 1114-N.Y. Veh. & T ra r. Law.li 1110,.1114 H.Y. T ra n sp. Corp. $ 30 3. Posting "tra i lblaze r" N.Y. Penal Law $$ 195.25(3), 195.05, 240.20(5) N.Y. Penal Law 5 195.05 signs N.Y.' Veh. - & T ra r. Law i 1114 N.Y. Veh. & Trar. Law $$ 1110, 1114 4. -R moving obstructions. N.Y.' Penal Law $ 165.05 Issues raised in state court, but. ' no statutes cited. 5. Sounding sirens and' N.Y. Penal Law $$ 190.25( 3), 195.05 '!. Y. Penal Law $ 195.05 broadcasting EBS messages N.Y. Exec. Law $ 20 el seat N.Y. Exec. Law il 28(2)(a ), 22( 3 )( b ), 23(7)(b), 25, 26 6. Making decisions and N.Y. Penal Law $$ 190.25(3),-195.05 N.Y. Penal Lew l-195.05 s;nd recommendations for N.Y. Exec. Law $ 20 el sea. N.Y. Exec. Law 5S 28(1) the 10-mile EPZ 28(2)(b); 25; 24(1),(2), & (5) 23(7)(b); 22( 3)(b). N. Y.- Pub. Health Law $$ 206(1)(a), 201( 1 )( r) 7. Making decisions and N.Y. Penal Law $$ 195.25(3),'195.05 N.Y. Penal Law $ 195.05 rzcommendations for N.Y. Exec. Law $ 20 el seg2 N.Y. Pub. Health Law 59 201(1)(1), the 50 mile EPZ 1110, 201( 1 )( r); 206( 1 )( a ); 206( 1 )( k ) N.Y. Agriculture and Markets Law 55 16(35), 71-1; 16(24), 16)27), 202-b 8. Making decisions and N.Y. Penal Law $$ 190.25(3), 195.05 N.Y. Penal Law $ 195.05 rscnemendations for N.Y. Exec. Law $ 20 el sea. H.Y. Exec. Law li 28-a, 23(7)(c), recovery and reentry 22(3)(c) N.Y. Pub. Hea lth Law $ 206(1)(a ), 201( 1 )( r ) 9. Dispensing fuel to Surrolk County Sani ta ry Code, Art. 12 issue not ra i sed in state court, stranded vehicles Code of the Town of Brookhaven, Ch. 30, Art. X 10. Providing security at N.Y. Penal Law R$ 190.25(3), 195,05, 240.20(5) Issues not ra i sed in state. court. Exec. Law $ PO el s the EOC, relocation-N.Y. Veh. & T ra r. 1.aw $] ggt canters, and EPZ N.Y. 1102, 1602 p3rimete r N.Y. T ra n sp. Co rp. 8 30 rrW G eMrr W \\

,, = - TO i ~, s! p ~ LILCO, Octobtr 15, 1984 CERTIFICATE OF SERVICE Op er In the-Matter of~ '+ LONG ISLAND LIGHTING COMPANY 34 g (Shoreham' Nuclear Power Station,-Unit 1) g %0:12 .(Emergency-Planning Proceeding) opc _ Docket No. 50-322-OL-3 C9c gcgg, BR$$Ck ,='^ JI certify thac copies of LILCO's-REPLY TO THE-RESP 0NSES TO ITS MOTION FOR'

SUMMARY

DISPOSITION ON CONTENTIONS 1-10 were served ~this date upon the following by first-class mail,-post-age prepaid,'and on the following day by hand or (as indicated .by'anl asterisk) by Federal Express on October 16, 1984: -James A. Laurenson, S-_.ctary of the-Commission Chairman'. U.S. Nuclear Regulatory

Atomic Safety and Licensing Commission-

' Board Washington, D.C. 20555 U.S.' Nuclear Regulatory Commission ~ . Atomic Safety and Licensing East-West-Tower, Ihn. 402A Appeal Board Panel * <4350. East-West Hwy. U.S. Nuclear Regulatory -Bethesda,?MD 20814 Commission Washington, D.C. 20555 .Dr. Jerry:R. Kline = Atomic Safety and Licensing. Atomic Safety and Licensing Bcard Board Panel * ~ U.S. Nuclear. Regulatory U.S. Nuclear Regulatory

Commission

~ Commission ~ LEast-West Tower, Rm. 427 . Washington, D.C. 20555 '4350 East-West Hwy. Bethesda,-MD ~ 20814 Bernard M. Bordenick, Esq. Oreste Russ Pirfo, Esq. Mr.JFrederick-J. Shon' .Edwin J. Reis, Esq. Atomic Safety l-and Licensing U. S. Nuclear Regulatory Board Commission U.S. Nuclear; Regulatory 7735 Old Georgetown Road Commission (to mailroom) . East-West Tower,'Ibn. 430-Bethesda', MD 20814 '4350 East-West' Hwy. Bethesda, MD 20814 Stewart M. Glass, Esq.* . Regional Counsel Donna Duer,-.Esq. Federal Emergency Management . Law Clerk ' Agency JAtomic' Safety and Licensing. New York, New York 10278 26 Federal-Plaza, Room-1349 Board Panel .U.:S. Nuclear Regulatory LCommi s sion -~ Stephen B. Latham, Esq.* East-West Tower, North Tower-John F. Shea, Esq. '4350 East-West. Highway 1 .Twomey, Latham & Shea Bethesda, MD 20814 33 West Second Street P.O. Box 398 Riverhead, NY 11901

yg+w-12-1 P.jg i+, EFabian-G. Palomino, Esq.* Ralph Shapiro, Esq.* +

c, Cammer &.Shapiro, P.C.

Special-Counsel 1to1the,

9. East 40th Street.

Governor = 4 Executive-Chamber- .New York,:New York-10016 . Room 229- . State-Capitol; James B. Dougherty, Esq.* . Albany, New York' 112224 3045 Porter Street Washington,-D.C. 20008 Herbert;H. Brown,- Esq. . Lawrence Coe,Lanpher,- Esq. Jonathan D. Feinberg, Esq.* Christopher:M. McMurray,:Esq. New-York' State Public Service Kirkpatrick, Lockhart,, Hill-Commission, Staff-Counsel Christopher-& Phillips 3 Rockefeller Plaza -Albany, New York 12223 8th Floor.

1900 M Street, N.W.'

t' ~ 1 Washington, D.C. -20036 Spence W. Perry,-Esq.* Associate General Counsel 1GiB Technical Associates

• Federal-Emergency Management 1723 Hamilton: Avenue' Agency Suite-}U 500 C Street, S.W.,

Rm. 840 SanLJose,1 California-95125 Washington, D.C. 20472 Mr; Jay'Dunkelberger* Ms.-Nora Bredes*- New' York State' Energy Office l Executive Coordinator Agency) Building 2. Shoreham Opponents' Coalition Empire State Plaza' 195 East Main Street Albany,- New York :12223 Smithtown, New. York 11787 Gerald C. Crotty,.Esq.* Martin Bradley'Ashare, Esq.* Counsel _to the1 Governor' _Suffolk-County. Attorney . Executive. Chamber' H. Lee Dennison Building -State Capitol Veterans Memorial Highway ' Albany, New-~ York 12224 Hauppauge, New York 11788- ~ &^ /_ James'N. Christman Hunton & Williams-

707 East Main Street Post' Office-Box 1535 Richmond,JVirginia 23212 DATED

October 15, 1984 ce ,-}}