ML20099E671
| ML20099E671 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/19/1984 |
| From: | Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | |
| References | |
| CON-#484-281 OL-3, NUDOCS 8411260009 | |
| Download: ML20099E671 (108) | |
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{{#Wiki_filter:M{ yb L r s UNITED STATES OF AMERICA ;., hC NUCLEAR REGULATORY COMMISSION Before ~ the Atomi.c Safety and Licensidh $6afd NJ :jd GFTE E CF ? .C:.: ra: UCC: EimG f. sLgem
) ERANCH In the Matter of )
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HL'NG O
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ISLAND LIGHTING COMPANY- ) Docket No. 50-322-OL-3
) (Emergency Planning)
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(Shoreham Nuclear Power Station, ) Unit'_l) )
)
SUFFOLK COUNTY AND STATE OF:NEW YORK-RESPONSE TO ASLB MEMORANDUM AND ORDER DATED OCTOBER 22, 1984 , Herbert H. Brown Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County Fabian G. Palomino Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York r November 19, 1984 I s OC
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' TABLE'OF CONTENTS PAGE I. INTRODUCTION .o. .- . '. . . 4
. . - . . . - . .- . . - .- l' II . - THE BACKGROUND TO'THE LEGAL AUTHORITY CONTENTIONS. ' .. .
. . - . . . . . . . . . . . '6 A. The State a'nd ' County Challenge LILCO's Legal-Authority to Implement the Transition Pl an . . . . . . . . 6 B. LILCO's Legal L Authority to Implement the Transition Plan Will Be Decided by-New York-State Courts . . . .. . . . '. . . . . - . . 13 III. LILCO HAS THE BURDEN OF PROOF WITH RESPECT TO RESOLU7 ION OF THE LEGAL ~ AUTHORITY ISSUE . . . . . . . . . . . . 20 A. LILCO Must Demonstrate that Adequate Emargency Prepared-ness Measures Can and Will be Taken . . . . . . . . . . . . . . . . . . 20.
B. LILCO Must Overcome the Pre-sumption Arising from FEMA't: Finding that LILCO Has Not-Established its Legal Authority . . . . . . 21
- 1. General Legal Authority . - . . . . . . 22
- 2. Declaration of a Public Emergency and Basic Decisions Concerning Protective Actions . . . . . . . . . . 23
- 3. Evacuation and Traffic Control . . . . . . . . . . . . . . . . 24 C. LILCO Has the Burden of Es'.ablishing its Legal Authority in View of Contentions 1-10 . . . . . . . . 25 IV. THE FUNCTIONS LILCO WOULD EXERCISE UNDER ITS TRANSITION PLAN ARE' ESTABLISHED IN THE RECORD . . . . . . . . . . . 28 (i) i
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l l PAGE A. :The' Dispositive Facts Are Not Disputed . . . . . . . . .: . ,. .. 28 B. LILCO's Actions Under the Transition Plan..:.. . . . .. ... . . . '28
- 1. Declaration of a Public Emergency and Basic Decisions Concerning-Protective Actions.. . . . . . . . . . 29
- 2. Evacuation and Traffic .
Control . . . . . . . . .. . . .. . 32
- 3. Other Protective Actions In the Fifty-Mile Area . . . . . . . . . 36
- 4. Re-Entry and Recovery- . . . . .. . . 138 V. LILCO LACKS THE LEGAL AUTHORITY TO IMPLEMENT THE TRANSITION PLAN . . .. .. . . 40 A. Basic Legal Principles Demonstrate that LILCO May Not Implement the Transition Plan . .. . . . . . . . . . . . . . . . . . 40 1.' LILCO Seeks to Perform Functions that are. Exclusively Reserved to the State and its Duly Authorized Local Governments . . . . . . . . . . . . . 41 (a) LILCO's Implementation of'the Transition Plan Involves cm Exercise of the State's Police Power and the Performance of Governmental Functions. . . . . . 41 (b) The Police Power is Vested
- i. in the State of New York t and May Be Exercised Only by Those to Whom Such. Power Has Been Lawfully Delegated . . . . . . . 44 (ii)
G b PAGE (c) The Police Power of New York Has Been Delegated Only to' Local Governm?nts i and May Not be Conferred Upon Private Corporations . . . . 46 (i) New York Law Delegates tr.e State's Police Power to Local Governments . . . . . . . . 46 (j i) An Express Grant of Governemnt Powers to Specific Entities Precludes tb? Exer-cise of Such Powers by All Other Bodies . . . . 47 (iii) New York State May Mot Lawfully Delegate the Exercise of its Police Power to Private Corporations Such As LILCO . . . . . . . . . . . 49
- 2. Corporations May Exercise Only Those Powers Expressly Conferred Upon Them by the State . . . . . . . . 52 B. The Legislature Has Specifically Delegated Particular Functions Embraced by the Transition Plan to State and Local Governments . . . . . . 56
- 1. Executive Law, Article 2-B, Confers Broad Emergency Planning Powers Upon State and Local Governments . . . . . . . . 57
.. The Legislature Has Delegated the Essential Functions of the Transition Plan to State or Local Governments . . . . . . . . . . 58 (a) Declaration of a Public
! Emergency'and Basic Decisions Concerning , Protective Actions . . . . . . . 58 i (iii) { i l
PAGE (b) . Evacuation and Traffic Control . . . - . . . . . . . . .. 62' (c) Other. Protective-Actions . . .. 66
,(d) Re-Entry and Recovery _._. .. . . 71 C. LILCO. Offers no Credible Authority-to Support its Attempted Implementation-of the Transition Plan . . . . . . . . . . 74 VI. ,THE BOARD SHOULD' DECLINE TO RULE ON THE " LEGAL AUTHORITY" ISSUES -
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.'VII. THE CAPABILITY TO CARRY OUT THE ACTIVITIES ENUMERATED IN CONTENTIONS 1-10 IS NECESSARY PURSUANT TO NRC REGULATIONS IN ORDER TO OBTAIN AN OPERATING LICENSE . . . . . . . . . . 82 VIII. THE LILCO " REALISM" DEFENSE SHOULD BE
! SUMMARILY REJECTED . . . . . . . . . . . . . . . -88 a
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'Of ID'l 21 An ; 9
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?;?iff UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSICN-Before the Atomic Safety gnd Licensing Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY )- Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, ) Unit 1) )
)
SUFFOLK COUNTY AND STATE OF MMI YORK RESPONSE TO ASLB MEMORANDUM AND ORDER DATED OCTC96R 22, 1984 I. INTRODUCTION By Memorandum and Order dated October 22, 1984,l/ this Board invited the parties to submit additional briefs on Con-tentions 1-10 (the so-called legal authority contentions). The Board specifically invited the parties to address "who they believe should prevail on each [ legal. authority] contention and 1/ Memorandum and Order Deferring Ruling on LILCO Motion for Summary Disposition and Scheduling Submission of Briefs on the Merits, October 22, 1984. 4
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' why,theLeontention should:be;resolvedfin that manner." Oct'ober.
22LOrder-at 3. .In.the context of the October 22 Order, it l's
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clear that.the' Board seeks the parties views on the stkte-law onestions ra3 3ed by < those contentions,- since the federal pre-
- emption' issues have already been; briefed.by the parties.2/ .The County / State' position on the. state law issuc is~ set'forth in
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Sections II-V, infra. The Board also invited the parties to. address the follow-t ing issues:
" :L . What action should th'is Board take on Contentions 1-10 in the' event that there is no decision from a_New York State court at
- the time the Initial Decision'in.the emer- ;
gency planning proceeding is issued?
- 2. In connection with LILCO's "immateri-ality" argument, whether the LILCO.activi-ties enumerated in Contentions 1-10 are necessary pursuant to NRC regulations in order.to obtain an operating license.
- 3. In connection with LILCO's " realism" argument, what effect would an unplanned response by the. State or County have and would such a response result in chaos, con-fusion and disorganization so as to compel a finding that there is no " reasonable as-surance that adequate protective measures 2/ See LILCO's Motion for Summary Disposition of Contentions 1-10 (the " Legal Authority" Issues), August 6, 1984; Opposition of Suffolk County and the State of New York to LILCO's Motion for Summary Disposition of Contentions 1-10 (the " Legal Author-ity" Issues), September 24, 1984; NRC Staff's Answer in Opposi-tion to LILCO's Motion for Summary Disposition of Contentions 1-10 (the " Legal Authority" Issues), October 4, 1984; LILCO's Reply to the Responses to its Motion for Summary Disposition on contentions 1-10, October 15, 1984.
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can and will be taken in the event of a radiological' emergency" at Shoreham? October 22 Order at 3-4. Suffolk County and New York State ad-dress these additional 1 issues in Sections VI-VIII, infra. At the outset, Suffolk County and the State of New York . disagree with the Board's statement that "[t]he parties have stipulated that no evidentiary hearing is required for the res-olution of Contentions 1-10." October 22' Order at 3. "Ihe Board is only partially correct. With respect to the State law legal authority. issue'(addressed in Sections II-V of this Brief) and the federal preemption issue (addressed at pages 1 23-88.of the County / State September 24 Brief), the County and State agree that no evidentiary hearing is required and so stated on the record in late July. See Tr. 13,831-32. Thc t
" stipulation" did not, however, and, indeed, could not cover LILCO's " realism" and " immateriality" defenses because those defense 4 had not even been raised at that time. In the Coun-ty/ State September 24 Brief, we advised the Board that if it decided to consider the merits of the realism and immateriality defenses, disputed facts would exist and thus a further eviden-tiary hearing would be needed. E.g., County / State September 24 Briet, at 99-100, 106-07, and Attachment B, Statement of Mate-rial Facts as t o Which a Genuine Dispute Exists.
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l Further, the County and State agree'with the Staff state--
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l ment.that if LILCO is= permitted to pursue lits realism and imma- ! teriality defenses:at this. late date, "the Othersparties dhould be afforded the opportunity to determine.whetherithey wish to ~ make'a' focused: evidentiary presentation with respect to'these contentionsibefore they-.arefresolved." Staff October 4 Brief, at-27. As the Staff' stated:-
! Commission case _ law requires that;"where a .
e party prosecutesf its case on one theory,' a
. trial board cannot decide it on another
[. Ewithout having given the opponents a fair: opportunity to rebut the_new theory with; .; argument and evidence." Public Service Co. of Indiana.(Marble _ Hill Nuclear-Generating i Station, Units 1 and 2),'ALAB-459,17 NRC 179,'186-(1978),-citing Niagara Mohawk Power Co. (Nine Mile Point Nuclear Station,
; Unit 2), ALAB-264, l=NRC.347, 353-55 (1977). Accord, Pennsylvania Power and Light Co. (Susquehanna Steam Electric Sta- ,
! tion, Units 1 and 2)i LBP-82-30, 15 NRC 771, 781-82 (1982). _I_d.3/ 1- } 3/ 'LILCO has urged that there has been an evidentiary hetring i on the realism and immateriality issues. See, e.g.,'LILCO } October 15 Brief, at166-67. It is true that some testimony during the hearing did address in some respects the-time j required for an allegedly uncontrolled evacuation, arel> LILCO did introduce one sentence of the Governor's December 1983-i press release. But parties were never advised that LILCO in-tended to raise new " realism" and " immateriality" theories-as
- alleged bases for resolving any of the legal authority conten-l- tions. Thus, it would be a denial of due process of law to re-i solve the merits of +he realism or immateriality defenses with-l out'first-providing the parties an opportunity for a fair evi-
, dentiary hearing. Similarly, LILCO urged in its October 15 Brief that the . l (Footnote cont'd.) 1 l
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i- __ j- -l y ; There fore', .7Nith respectL to :the realism 'and immatoridlity:
" defenses; : ao further : evidentiary hearing' is required if the: ' :
Board decidestto.reachl the meritsiof either defense. The Coun'-- , ' ~
< ity:and~ State point out, however,1that b6thidefenses should.be ;F
. summarily rejectedLfor r'easons:- already : articulated / by- the)Coun- ;
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ty and-State. See. County / State September.24jBrief, atf88-118.- ;
-'See'also Sections VII:and'VIII of the'instan'n.Brief.4/i t Thus) +
the County;and; State believe.th'at a furtherjevidentiary(hearing'
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may;be. avoided,.but_only if the Board. correctly rejects these , 4i
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. defenses'for the reasons'specified by the County andiState.- y i -
4 (Footnote cont ' d. ) ' _ County and State should not be permitted to s'hbmit' data and af- !
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i fidavits in opposition to LILCO's summary disposition. motion. , See LILCO October 15 Brief, at 58, 60-61. The' Board shouldEnot. I countenance such an attempt to deprive' parties of their rights, j 10 CFR { 2.749 clearly. permits the filing of affidavits-in-re-- I sponse to summary disposition _ motions. Such affidavits were-particularly appropriate in this instance becauce they were' , filed in response to LILCO's new theories. Thus,_the County and' State continue to rely on those materials and on'the State
; ment'of Material Facts in-Dispute. The contents of those mate-i rials provide additional reasons why the Board cannot' address j the merits of the realism and immateriality defenses without'a ~
y further evidentiary hearing. i 4 4/ Regarding the realism defense in particular, the County and State believe that the alleged State or County " response" to an emergency which LILCO attempts to fabricate out of the l, December 1983 Governor Cuomo press release is not. relevant to o the legal authority issues. Even assuming arguen'o d that the County or State were to respond, this would not cure LI: "> ' s . lack of legal authority. Thus, the nature'or existence t such an alleged response by governmental. entities is not an issue - which, in our view, needs to be resolved in ruling in the Coun-ty and State's favor. If the Board disagrees and believes that the Cuomo statement is pertinent, then an evidentiary hearing would be required. 5- __&__ _ . w. _ _ , - - . _ _ . _ . - _ _ _ _ _ _ ._.._. _ _, _ _ _
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y ya m. _. j! - - , r y IIIh THE: BACKGROUND 1TOLTHEl H _ LEGAL-AUTHORITY-CONTENTIONS' , l 4
'A. The' State And County Challengei
,'LILCO's Legal Authority To
-Implement The Transition Plan 9;_ <
LILCO must obtain'an operating license from the NRC' f*- 'before it-can operate Sh'oreham. 42'U.S.C. . { 2131. - To obtain that' operating-license, LILCO must demonstrate that operation
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of the Shoreham' facility ,will . provide adequate protection .to . Id. {2232(a).
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.the health and s'afety of . t.he public. " LILCO has the burden of demonstrating to the NRC that " adequate protec-tion" exists. 10 C.F.R. $2.732.
Following the nuclear accident at Three Mile Island in-March, 1979, Congress determined that no nuclear plant could be licensed unless there was an adequate emergency preparedness plan. See Public Law 96-265, $109, 94 Stnt. 783-(1980). While; the construction of Shoreham was ongoing, the NRC imposed new requirements upon applicants for operating licenses.5/ The 4 4 5/ Prior to the TMI accident, the NRC did not condition issu-P ance of an operating license for a nuclear plant upon the ,exis-tence of an approved cEfsite emergency response plan. The ac- ! cident at TMI focused general attention on the fact that a nu-clear accidsut can happen, on the importance of offsite emer-gency preparedness, and on the need to evacuate or-otherwise
- protect substantial numbers of people in the areas surrounding nuclear facilities in she event of such accidents.
The NRC adopted its emergency planning regulations in re-sponse to these concerns. It adopted those regulations, not-p withstanding criticism from the utility industry that offsite emergency planning requirements might, in some cases, jeopar-dize the ability of utilities to obtain operating licenses for (Footnote cont'd.) 4 l l
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-NRC's emergency' planning-regul'ations require'each utility-applicant, such as LILCO, to submit a radiological emergency. response plan ("RERP") as part_of its licens'e appli-
-cation. Each'RERP-must' describe how nuclear emergencies will be, handled-both within a 10-mile radius plume exposure. pathway
-Emergency Planning Zone-("EPZ") and a 50-mile radius food in -
gestion pathway _EPZ. See 45 Fed. Reg. 55',402 (Aug. 19, 1980);
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10 C.F.R. 50.33(g). The NRC cannot issue an operating license
.for a' nuclear power reactor unless it finds, on the basis of-the RERP that the utility-applicant submits, that there is a level of offsite emergency preparedness that provides " reason-able assurance'that adequate protective measures _can and will be taken in the event of a radiological emergency." Id. $50.47(a)(1). Again, LILCO has the burden of demonstrating that such measures can and will be taken. Id. $2.732.
LILCO has attempted to meet its burden under the NRC's " reasonable assurance" standard for offsite emergency planning by devising its own RERP--the Transition Plan--and submitting the Transition Plan to the NRC as a part of its operating license application.5/ 2 '.0 recognizes that the (Footnote cont'd.) nuclear, plants then under construction. 45 Fed. Reg. 55,402, 55,405 (Aug. 19, 1980). 6/ The Transition Plan describes the actions LILCO intends to take in the event of a radiological emergency. It 63nsists of - four volumes of materials: (a) a volume entitled Shoreham Nu-(Footnoto cont'd.) l
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Transition Plan.is uniques. it'is-theLonly'RERP-. submitted-to
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the'NRC.that does~not iely:upon. participation by-State'and 11ocal governments. LILCO'scrole under the Transition-Plan isLequally . unique. tit is the[only instance in LWhich. tne NRC has: beenl r
' asked.to approve a utility's. intention ~to: assume the basic.po-Llice power vested in' State'and-local governments. :In.the event of a nuclear accident,.LILCO itself would assess the severity of.the accident and declare a public.emsrgency;.LILCO would de '
cide Who should be evacuated; LILCO would control traffic,- block. highways, alter traffic' flow and'the like; LILCO would
' direct-other protective.actionsiwithin a 50-mile radius of.
-Shoreham; and.LILCO wodld sdpervise the citizens at large in i ,
their return to the evacuated. areas'.
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L Finally, LILCO's-Transition Plan confronts this Board F with a unique dilenma: it is asked to approve LILCO's RERP and to conclude that adequate steps can.and will" be taken to pro- { tect the health and safety.of the public Where a private corpo-i i ration would carry out all essential functions of the RERP. Moreover, this Board is new asked to find that " adequate
- j-(Footnote cont'd.)
. clear Power Station -- Local Offsite Radiological Emergency Re-
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sponse Plan (" Plan"); (b) a two volume set of Offsite Prepared-ness Implementing Procedures ("OPIP"); and (c) a volume enti-i- tied Appendix A - . Evacuation Plan (" Appendix A"). i a_C __, . --- . . . -- . -,_ .~,v.--,, ,y- .c m,y- --,._.m - - . -,--,,,.,,,.-.,..r,.., . _ . , _ _...s.__ ,.
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f protective-measures'can~and willibeLtaken"'although1LILCO has-made no-showing.that-a private corporation has the legal power or-authority.to perform the' basic functions in question. Rather than demonstrace:.that it'has authority to.im-
.plement the Plan, LILCO simply has told the NRC that:-
(F)oriting in New York State law prevents: the utility
- from performing the.necessary functions to protecti the public. To-the. contrary, Article 2-B of New York:
State Executive Law,L.Sec. 20;1.e, makes itLthe policy of.the Stateithat State and.-local plans, organization. t-arrangements,.and response. capability "be the most - effective that current circumstancec-and existing re-- sources allow." LILCO Transition' Plan,.p. 1.4-1.'Significantly,'the-Transition-L Plan does not state that'the State or~ County han actually au-thorized L?.LCO to act. LILCO does not assert.that it has the. legal authority to carry out the Transition Plan. LILCO does not cite any affirmative state law basis for its purported au-
' thority. LILCO has chosan to argue simply that nothing pre-a vents it from implementing its Transition Plan.
That argument T has no substance. i J In carrying out the Transition Plan, LILCO would per-f form functions that are the traditional prerogative of State and local governments. Most fundamentally, LILCO would exer-cise the police power of the State. Thus, it is the position of-the State and County that the entire effort of LILCO to im-plement.the Transition Plan is illegal as an attempt to usurp i .
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the police power of the State. More specifically,:LILCO wceld i exercise particular-aspects of the State's police power: the ! l
'declaratien of a public emergency; thefdirection of evacuation traffic; decisions about health and safety. protective actions -
and supervision _of citizens' return to evacuated' areas. Contentions-1-10 challenge LILCO's legal authority to exercise the police power and to' perform the basic governmental functions assigned to it-under the Transition Plan. LILCO's repesentation that "nothing in New York State law prevents the utility from performing the necessary functions .to protect the public" is both irrelevant and wrong. LILCO's stateme.at is ir-relevant, because LILCO must show an affirmative basis for -its authori ty to carry out the Transition Plen. It must demon-strate that it "can and will" perform the functions in ques-tion. LILCO cannot-perform such functions unless it has actual authority to do so. LILFO's position is wrong, because, in fact, LILCO 1 has no legal authority to implement the Transition Plan. New York State law precludes LILCO from carrying out the essential functionc of the Transition Plan. LILCO's position is wrong, because it ignores propositions of law so basic that the State and County would have supposed they did not need to be stated. Those propositions are as follows:
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u (1). The police power resides in the States under the Tenth Amendment.to the United States Constitu- l tion.. The functions LILCO intends to perform are' examples
- of the police power, that.is, the power to' protect the
-health, welfare and safety of the citizens. The authority to carry;out the overall response to a nuclear' emergency involves an exercise of that power . The Contentions chal-lenge examples of.the exercise of that police power; the authority to control- the ' overall emergency response to a major nuclear accident is part and parcel-of the police power. Thus, in implementing the' Transition Plan, LILCO seeks to exercise an inherent ingredient of the State's sovereign prerogative.
(2). The police power may be exercised only by the State or, upon appropriate delegation, by its politi-cal subdivisions. Even municipalities cannot exercise governmental powers unless the State Constitution or stat-utes confer such powers upon them; that principle is firm-ly established. Necessarily, a private corporation cannot exercise governmental powers without express delegation. Clearly, New York State has not delegated its police power to LILCO. Indeed, no such delegation of the police power to a private corporation could withstand legal scrutiny. l i
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J r t ! g -( 3 ) ; Corporations haveionly?those powers that' the State grants _to them. -LILCO is a corporation created by' and' existing under; New York State: law. -LILCO possesses only those powers' conf' erred upon it.- New York corporate law does not empower.a private corporation to-usurp or ex-ercise'the-State's police power. New York' law does not
. authorize a corporation to carry.out the functions set forth in the' Transition Plan. LILCO has no other source forfits purported authority-to do so.
Each of the foregoing propositions is a firmly established, hornbook statement of law. LILCO's position ignores these ele-- mental principles. LILCO's position also is wrong for a second set of reasons: _the specific functions in question have been delegated to or conferred upon State or local governmente. Each of the functions identified in the Contentions is an example of the State's police power. Accordingly, the exercise of those func-tions is governed by the basic legal principles stated above. In this case, numerous State and local statutes confer upon State or local governments the specific power to discharge functions that are elements of the Transition Plan. Most im-portantly, Executive Law, Article 2-B, specifically confers emergency police powers upon State and local governments. An , express legislative grant of power to undertake specific i. t l
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; governmental-factivitiesJprecludes the-exercise of that_ power by
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otherientities, public or' private'.. .Accordingly,Jthe.Legisla-
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.ture'siexpress delegation off.the functions hererin: question to--
- specific governmental. units:necessarily precludes ~LILCO's ef-1
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fort to exerciseLsuch funcLions.. In sum, LILCO does not have' legal authority to imple-ment its Transition Plan.<
- B. ~LILCO's Legal Authority To' Implement-LThe-Transition Plan Will Be= Decided By New York State Courts 2 This Board has been conducting hearings to determine
- whether LILCO's Transition Plan complies with NRC standards and'
. is capable of being implemented. During .these proceedings, j
FEMA has questioned LILCO's legal authority,.and the State and< County have advised this Board that LILCO lacks the legal au-thority to implement the Plan. In an effort to resolve this State law issue, the Board requested the parties to obtain a i
, definitive answer from New York State courts. The issue.is now.
before the New York State Supreme Court. Although LILCO has delayed a final resolution of that issue, final briefs on the legal authority question will be filed with the Supreme Court
- on December 1, 1984, and the Court will then be in a position to rule on the question.
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.In' connection with theseLproceedings, FEMA-has reviewed the Transi tion Plan. - In a Memorandum dated June 23, 1983, FEMA reported to the NRC that a. precondition!for determining Whether LILCO can implement the Transition Plan is
"[a]; determination of Whether LILCO has the appropriate legal authority to assume management-and implementation.of an offsite-emergency response-plan."_7./ FEMA's concerns were underscored in.
an August, 1983 letter froml FEMA to th'e:NRC: I.also want to emphasize again that there-is a real
-need to resolve the issue of LILCO's-legal' authority to act in accordance with the plan either in an exer-cise or during an actual emergency. This problem is one that can be resolved by the State of New York.8/
On March-15, 1984,' FEMA delivered-its review.of. Revision 3 of LILCO's Transition Plan to the tiRC. FEMA's re-view highlights numerous aspects of the Transition Plan that raise legal authority issues under NUREG-0654 standards and evaluativo criteria, including "the issue of LILCO's police power authority."9/ These same legal authority concerns were 7/ See June 13, 1983 Letter of Richard W. Krimm, Assistant Assoclate Director of FEMA, to Edward L. Jordan, Director, Di-vision of Emergency Preparedness and Engineering Response, NRC. 1 8/ August 29, 1983 Letter of Jeffrey S. Bragg, Executive Dep-uty Director of FEMA, to William J. Dircks, Executive Director for Operations, NRC. 9/ See Attachment 2, p.2 to March 15, 1984 Letter of Samuel W. Speck, Associate Direct;r State and Local Program and Support, FEMA, to William J. Dircks, Executive Director for Operations, URC. _ __ - . _ , . - __ ~ -- - _ _ _ -
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F1 reiterated by FEMA in its review of Revision 4 of LILCO's Tran-sition vian.12/ U
~ Similarly, the State and the County have challenged LILCO's. legal authority to implement its Transition Plan and have advised this Board that no-such authority exists under New York law. .On July 7, 1983, the County and other intervenors filed 10 legal contentions challenging LILCO's legal authority.
This Board sought direction from the parties with re-gard to how to approach the' legal contentions, and the County and LILCO initially jointly suggested that the ASLB defer' con-sideration of the legal authority question until the end of the ASLB proceeding. On December 1, 1983, Judge Laurenson expr essed the ASLB's reservations about this suggested procedure Judge Laurenson: "[L]et's talk about the legal contentions, numbers 1 through 10 .... What we are. concerned about here is the fact that these appear to be issues of law. They are issues of New York State law." Tr. 706-07. Having heard the parties on ways to resolve the ! legal authority issue, Judge Laurenson stated:' "The problem is, for your own reasons -- and I won't go into them -- neither side has taken this to the state courts yet." Tr. 715. The issue was then tabled without resolution; the County and LILCO 10/- Attachment 2 to November 15, 1984 Letter of Samuel W. , 5 peck to William J. Dircks. See discussion infra at pp. 21-25 l regarding effect of FEMA'a legal authority concerns. l l
[ were' directed to discuss the' subject further;.and Judge Laurenson concluded: "In the.meantime, we would_ entertain sug-gestions by any other parties, of course including the staff, con'cerning this question of. resolution of state law." Tr. 716s 11/ In response to Judge Laurenson's invitation, LILCO filed a Proposal._for Resolving the " Legal Authority" Issues on
~
January 26, 1984, reciting LII.CO's earlier view. LILCO's Pro-posal suggested that the ASLB should decide the legal conten-tions, stating as follows: Nor can the ' legal authority' contentions be resolved (except in LILCO's favor) by relegating them to a state court. The reason is that if there were any respect in which a state or local law made a utility plan less effective in protecting the public, such a law would be invalid under the Supremacy Clataa.12/ 11/ The NRC Staff had independently expressed its view that the question of LILCO's legal authority should be decided by state courts. See retrarks of Mr. Reis: "[W3e feel that this is a matter that is more appropriate for a State instrumental-ity, rather than for this Board, and that this matter ought to 4 be settled in New York State.
"No one has been willing to go forward, I don't know whether we -- on this matter -- but we feel that this is a mat-ter of State law for State Courts .... And we think it would be inappropriate for this Board to be passing on these matters absent some definitive State Ccart ruling .... I do feel that I these are matters that are for the State Courts, and not for the Federal, as a matter of comity should not be determined in a Federal proceeding." Tr. pp. 711-12 (emphasis supplied).
12/ LILCO January 26 Proposal, at 4-5, footnotes omitted. LILCO's position that a state court cannot decide the legal au-thority issues is simply wrong.- See Cuomo v. LILCOr County of Suffolk v. LILCO, Nos. CV-84-2328, CV-84-1405 (E.D.N.Y. June 15, 1984),. Memorandum and Order of Judge Altimari. l 1 l
p z. e t LILCO asserted:that="this pre-empt' ion issue.would allow.res. . oval
.j of litigation over (the legal contentions] from' state court tc d
federal court if-afstate lawsuit were brought." LILCO January 26 at Proposal, at 5. After review of LILCO's Proposal, Judge Laurenson staved-the ASLB's view that the County's legal contentions in-
.volved issues of State law'that should be resolved.by New York State courts. He urced the parties to resolve these legal is-Esues so that the ASLB could act upon LILCO's Transition Plan.13/ In short, Judge Laurenson rejected LILCO's position-that the ' courts of New York were an improper forum in which to resolve the legal contentions.
The State and the County filed declaratory-judgment actions in State court in early March 1984. Those actions seek 13/ Judge Laurenson recited the ASLB's basic view: " Turning then to the question of the legal contentions or contentions 1 through 10. The Board believes that these legal contentions are preperly matters to be disposed of by the New York State courts. Until one or more of the parties to this matter obtain such a ruling this Board will follow the procedure originally recommended by Suffolk Cottaty and LILCO, to hold'off a decision until the end of the case, when findings of fact are filed along with conclusions of law." Tr. 3675 (emphasis supplied). In response to the County's position that LILCO had failed to establish its legal authority to implement its pl.in, Judge Laurenson stated: "I'm curious why the County has not pursued a declaratory judgment, if that is their position concerning state law. We have indicated before that this is one area where a state court would presumably be able to dispose of these legal issues." Tr. 3361-62.
c,--
.. ;1
~ a declaration thrd LILCO does not have auuhcrity to carry ~out its Transition Plan.
/
After initially moving to dismiss the Complaints or. . the grounds of pre-emption, LILCO removed the State and County actions to the U.S. District Court for the Eastern District of New York, claiming that Plaintiffs' challenge to LILCO's legal. authority presented a question of federal law that was within the original jurisdiction of the federal courts. The State and County filed Motions for Remand of their actions to the State Court. By Order dated June.15, 1984, the Honorable Frank X. Altimari, U.S.D.J., granted the. Motions, finding that LILC3's removal of the cases had been effected in the face of squarely controlling authority of the U.S. Supreme Court. Judge Altimari rejected LILCO's contention that the cases must (or jndeed could) be decided in federal court. Judge Altimari held that the issue of preemption arose only by way of affirmative defense and that Plaintiffs' claims and any defenses thereto should be resolved by the Supreme Court of the State of New York. Cuomo v. LILCO; County of Suffolk v. LILCO, Nos. CV-84-2328, CV-84-1405 (E.D.N.Y. June 15, 1994), Memorandum and Order.14./ 14/ After remand, on August 14, 1984 ':he State and County ac-tIons were consolidated with a similar action filed by the Town of Southampton on May 16, 1984. Upon a request by all the par-ties that those consolidated cases be handled by a single judge throughout all proceedings, the administrative judge of Suffolk i County assigned those consolidated actions to Judge Geiler. F: t On August 14, 1984, LILCO launched'a'new strategem to avoid a' consolidated resolution of the legal authority issue. LILCO renewed its Motion to Dismiss (ni the grounds that the State court does not have subject matter jurisdiction and that the Complaints fail to state a cause of action. But one week before renewing .its Motion to Dismiss the ' State court actions, LILCO filed a pleading designated " Motion for Summary Disposi-tion of Contentions 1-10 (The ' Legal Authority' Issues)" with the ASLB. That Motion put in issue the preemption question that (i) LILCO had cited as the basis of its initial Motion to Dismiss the State ccurt cases and that (ii) Judge Altimiari had held was an affirmative defense to a State law claim that should be resolved in state court. LILCO's Motion to Dismiss asserts that New York law does not prevent LILCO from implementing the Transition Plan. That Motion and the State and County's Cross Motion fcr Summary Judgment are before the Court and will ha te been fully briefed by December 1, 1984.
- i 1
s-
' III. LILCO HAS THE BURDEN OF PROOF-
- WITH RESPECT.TO' RESOLUTION '
' OF-THE LEGAL AUTHORITY 1SSUE.
LILCO's? statement that New YorkDlaw does.not prevent
- - . its intended actions-cannot support a'~ finding of " reasonable assurance"' in this case.- Moreover, LILCO's statement ignores t
that LILCO must meet"a- burden of. proof- on three _ fronts. ' It is t not enough; for.LILCO 'to say it is - not precluded from performing
~certain functions, although precluded it:is.L LILCO. must: affir-
- matively demonstrate that it has the requisite nuthority,to' act. LILCO has clearly failed to sustain its burden.-
A. LILCO Must Demonstrate That Adequate Emergency Preparedness i Measures Can And Will Be Taken. s First, LlLCO's statement that New York-law does not
] prevent it from performing the necessary functions. set forth in i ~
the Transition Plan does not satisfy the burden of proof im-posed upon it by 10 C.F.R. $2.732. .LILCO must affirmatively i demonstrate that it "can and will" implement the Transition Plan; it must demonstrate that it actually has the authority to ;
! do so. LILCO's Transition Plan statqs no basis for LILCO's purported authority. It contains no such affirmative demon-i stration.ll/ LILCO has offered no basis upon which this Board l
15/ FEMA'has stated that the Transition Plan it inadequate be-cause LILCO has not complied with the basic " requirement to , state, by reference to specific acts, statutes, or codes, the legal btais for the authority to carry out the responsibilities (Footnote cont'd.) l
\
-.- r , 3 , . - -, . - - - , ,. y-- . - - , - - ~ . , , , ~ . , , -,,,-,.--~me,m,r.-,-w.y,,.--,.,~,-.e-y,,,-.~*--a *y -w,- -,--.wy,w--3-~w,---~w.n -- ee-
i I might find, consistent with 42 U.S.C. $2232(a) and.lO C.F.R.
-{50.47(a)(1), that " adequate protection" for public safety ex-ists.
B. LILCO Must Overcome The Presumption Arising From FEMA's Finding That LILCO Has Not Established Its Legal Authority. Second, LILCO's failure to demonstrate some positive basis for its purported authority is critical given FEMA's re-peated assertions that LILCO's. legal authority has not been demonstrated and FEMA's consequent determination that the Tran-sition Plan cannot be found adequate. The NRC is requircl to base its " reasonable assur-ance" finding on a review of FEMA's findings and determinations as to whether offsite emergency plans are " adequate" and "can be implemented." 10 C.F.R. $50.47(a)(2). FEMA's review of LILCO's Transition Plan has highlighted numerous aspects of the Plan that (in FEMA's view) raise legal authority issues, including "the issue of LERO's police power authority."16/ (Footnote cont'd.) listed in A.2.a., i.e., all major response functions." November 15, 1984 letter of Samuel W. Speck, Associate Direc-tor, State and Local Programs and Support, FEMA, to Mr. William J. Dircks, Executive Director for Operations, NRC. (" Speck Letter"). 16/ See Speck Letter, Attachment 2, Concerns Pertaining to LERO'T~ Legal Authority Identified During RAC Review of LILCO Transition Plan for Shoreham, Revisions 3 and 4 (" Concerns"), (Footnote cont'd.)
g- - - - - FEMA'sLfindings pursuant to its review of the current Transi-tion. Plan' identify numerous inadequacies relating _to LILCO's
' legal authority. FEMA's findings pertaining to legal authority are summarized as follows:
- 1. General Legal Acihority.
I FEMA has determined that "the legal authority cited in Attachment 1.4.1 to the plan (10 C.F'.R. $50.47) does not specifically grant the necessary police powers to a licensee to implement those aspects of an offsite emergency response requiring the exercise of govermmental authority."ll/ Recognizing that an affirmative grant of authority was required, FEMA found the Transition Plan inadequate under NUREG 0654, $II.A.2.b. FEMA's recently issued review of LILCO's Plan highlights a broad range of legal authority questions that are unanswered, including LERO's general police power authority and the absence of any stated legal basis for its purported (Footnote cont'd.)
- p. 3. As demonstrated in this Brief, the County and State
- believe that the illegality of the Transition Plan goes far be-yond those specific concerns identified by FEMA. However, the fact that FEMA has identified police power / legal authority con-cerns is further reason to rule that LILCO has failed to satis-i fy its burden of proof.
17/ See Attachment to June 23, 1983 Letter of Richard W. KEimm, Assistant Associate Director of FrMA, to Edward L. Jordan, Director, Division of Emergency Preparedness and Engi-neering Response, NRC, entitled Element-by-Element Review of the LILCO Transition Module, at pp. 2-3. t 4
' authority.. See Speck Lutter, p.-2 and Concerns. ' Indeed , = FEMA -
~
has specifically qaestioned LILCO's authority:-(i).to assume
~
the rerponsibilities required in an emergency. response; (ii)'to
~
- determine what actions should'be taken-to protect the. health.
= and safety ;ofL persons fini he t .EPZ (iii) to. declare a publicE emergency without. government involvement; and (iv) to' assume traffic control duties'during'an' emergency. Given these con'-
' ~ cerns,= FEMA has advised the NRC Lhat it cannot determine-that LILCO has the ability'to implement-the' Transition Plan until LILCO's legal authority to'do so has been establishAd.18/
~
~
- 2. Decloration of-a Public E.nergency and Basic
! Decisions Concerning Protective Actions.
FEMA has specifically questioned LII.CO's legal au-3 thoritf: (i) to " seek a declaration of a state of emergency.-and
- to request State and Federal assistance;" (ii).to assume "com-mand and control responsibilities;" and (iii) to undertake the
" responsibility for alerting and notification of the pablic."
See concerns, p. 1. t Similarly, FEMA has questioned the broad authority given'to the Director of Local Response under the Transition Plan, including specifically the responsibility that LILCO em-ployee would have "for decision making and strategic controls, i 18/ See August 29, 1983 Letter of Jeffrey S. Bragg, Executive Deputy Director of FEMA, to William J. Dircks, Execu+1ve Direc-tor for ' Operations, -NRC. See also cm arally Concerns. I' b .
and responsibility to decide upon the major responses to be made." Concerns, pp. 1-2. Finally, FEMA has questioned LILCO's authority (i) to activate the EBS systemt (ii) "to disseminate emergency information to the public withou'. the in-volvement of State and/or local government officials;" and (iii) "to activate the alert and notification system without State and/or local government participation." Id. at 4.
- 3. Evacuation and Traffic Control.
FEMA has determined that LILCO's intended " assignment of traffic control responsibilities to persons who are not po-lace officers is inappropriate given the necessity of blocking pablic thoroughfares, ordering drivers to follow specified routes, and other extraordinary changes in legal driving patterns."19/ On that basis, FEMA found that the Transition Plan was inadequate under NUREG-0654, $II.A.2.a. FEMA has de-termined that the Plan's reliance upon LILCO employees for traffic control is inadequate because " traffic control guides will not be able to put signals on " flashing" operation as could be done by police".2Q/ On that basis, FEMA c estermined that the Transition Plan did not meet NUREG-0654, II.J.10.j. 19/ Element-by-Element Review of the LILCO Transition Module, attached to June 23, 1983 Letter of Richard W. Krimm, Assistant Associate Director of FEMA, to Edward L. Jordan, Director, Di-vision of Emergency Preparedness and Engineering Response, NRC,
- p. 2.
20/ Id. at 10. See also id. at 13 re NUREG-0654, $11.J.10.k. 1 e In addition, FEMA found that it could not determine tPs..'the Transition Pl'an "fa. capable of being implemented" and that LILCO "has the ability to implement the plan" until there was a determination that "LILCO has the appropriate legal au-thority.to assume' management and implementation of an offsite emergency response plan."2_l,/ Finally, FEMA .has quest!oned LILCO' .7 authority to im-plement traffic control measures in an evacuation, stating that
"[a]ssigning access control duties to LILCO employees including setting-up and controlling roadblocks [and] dealing with evacuation, etc., remain a concern." Concerns at p. 6.
FEMA has also stated that "LERO's authority to remove impedi-ments to evacuation remains a concern." Ibid. C. LILCO Has The Burden Of Establishing Its Legal Authority In View Of Contentions 1-10. The State and the County have also challenged LILCO's legal authority to implement its' Transition Plan and have advised the ASLB that no such authority exists under New York law. The legal authority contentions assert that "LILCO can-not, as a matter of law, exercise the responsibilicies identi-fled in Contentions 1-10." Preamble to Contentions 1-10. The individttal contentions identify the specific functions that 21/ Krimm Letter of 6/23/84, p. 2. I
i LILCO's Transition Plan states will be performed by LILCO employees in the event . of. a nuclear . emergency at Shoreham. LILCO argues that the State and the County bear the initial ' burden of establishing a prima facie case supporting the Contentions- that the State and the County have not carried t-this burden; and that, therefore, LILCO has no obligation to disprove the Contentions. LILCO. October 15 Brief, at 10-11. LILCO relies primarily_on a passage from Louisiana Power and Light Company (daterford Steam Elec. Station, Unit 3), ALAB-732, 17 NRC 1076, 1093 (1983), w11ch states that an inter-- venor has the burden of introducing evidence to support a con-tention that raises issues of fact. That proposition is inap-posite whan the contention in question involves an interpreta-tion of law. Thus, LILCO's argument is simply nonsensical in the context of contentions 1-10 which, all parties recognize, raise substantial questions of New York State law concerning LILCO's legal authority to implement its Transition Plan. LILCO also attempts to support its position by referencing the concept of " threshold showing" discussed in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 US 519, 549-55 (1978). In Vermont Yankee, the Court agreed with the NRC's conclusion that intervenors had failed to establish that con-tentions met a threshold materiality standard. However, the materiality of. Contentions 1-10 is indisputable. LILCO cannot i f
l obtain an operating license for Shoreham unless it establishes, inf.er alia,;that'it hasithe legal cuthority to implement the Transition Plan in the event of a' nuclear accident. The Con-tentions directly question LILCO's legal authority to implement the Plan. LILCO's suggestion that the Contentions fail to pass any threshold test for materiality is ridiculous. Moreover, LILCO's argument that the State _and the
-County must meet an initial burden in pressing the Contentions completely turns the legal authority issue upside down. LILCO must affirmatively establish that an adequate offsite emergency response plan exists for Shoreham. Independent of any need to respond to Contentions raised by other parties, LILCO has an-obligation to prove that New York law permits the activities set forth in the Plan. LILCO has made no effort to do so.
b1LCO has not asserted that it hac a positive basis of authority to carry out the Transition Plan. It has, there-fore, failed to carry its burden under each standard applicable to this matter. Moreover, it is clear that LILCO has no such authority. The New York State Constitution, numerous New York statutes, and basic jurisprudential concepts preclude LILCO from exercising the State's police power or from per forming .the specific functions here at issue.
(. . L 'IV. 'THE FUNCTIONS LILCO WOULD EXERCISE UNDER ITS TRANSITTON PLAN ARE ESTABLISHED IN THE RECORD ,
~
A. The Dispositive Facts Are Not Disputed The Contentions challenge-LILCO's authority to carry out the Transition Plan and to exercise governmental. functions. The functions in question are set forth in detail and in
~
LILCO's own words in the Transition Plan itself. In sum, the basic functions LILCO would perform under the Transition Plan are not in dispute. Only the legal character of those func-tions and LILCO's legal authority to perform those functions are pertincnt to the legal authority contentionn. B. LILCO'S Actions Under The Transition Plan LILCO's activities under the Transition Plan which the State and County challenge constitute an exercise of the State's police power of startling breadth and scope. The con-trol and direction of a response _o a community-wide emergency, which reaches into every aspect of daily life and can lead to the mass relocation of hundreds of thousands of people, is a quintessential governmental function. LILCO has, by its Transi-tion Plan, arrogated to itselt and its force of LILCO employ-ees, the exercise of the police power that direction of a community-wide response to a nuclear emergency by definition entails. Quite apart from any specific functions that LILCO 28 -
L r. V would perform, LILCO's basic undertaking : constitutes an unlawful usurpation' cf the police power vested; solely in . the State of.NewuYork and its political: subdivisions. Its under-taking to direct the entire energency response.in accordance withLthe Transition Plan is unauthorized and' impermissible. In addition, LILCO's intended exercise of the police power involves specific governmental functions. Each of those functions is a particular exercise of.the police power each of thos, functions is within the exclusive prerogative of Ltate and local governments. Just as LILCO lacks the general author-
' ity to exercise the State's basic police power, en LILCO lacks the specific power to perform the particuler governmental func-tions at issue. These basic governmental functions may be roughly categorized as follows:
- 1. Declaration Of A Public Emergency and Basic' Decisions Concerning Protective Actions First, the State and County challenge LILCO's legal authority to assume respons1bility for declaring a public emer-gency in the event of a nuclear accident at Shoreham and for advising the population cf Suf folk County. The State and Coun-ty also challenge LILCO's legal authority to decide what ac-tions should be taken to protect the health and safety of the i l
public in the EPZs. Contentions 5 and 6.
=-
n, f, '
.,s 1 In such a situation, LILCO will alert the public'to tantemergency,through'an emergency siren system and advise the r
population as to What protective actions to take -- including evacuation of their tomes and businesses. . Each of these . func-
'tions is clearly set.forth' in'the Transition Plaa.itself.22/.
LILCO acxnowledges in its Plan that a LILCO employee, the " Director of Local Response [,3 assumes the responsibility for protecting the health and safety of residents and tran-- sients within.the Emergency Planning Zones," and that "[t]he decision to notify and implement protective actions for the
~
general public is solely Chis] responsibility...." Plan 2.1-1. 2 r c ee OPIP 2.1.1 at 5. LILCO employees and consultants will make decisions regarding Whether protective actions for-the 50-mile ingestion exposure pathway EPZ ehould be recom-mended. OPIP 3.6.6 at in. LILCO's Plan asserts that if LILCO determines an emergency to exist, it will activate an extensive communication i system, including 89 fixed sirens, to alert the public, and will " provide alerting and clear instructions ... to the gener- ! al public". Plan 3.3-4, 3.4-6. LILCO will also use the Emer- ! gancy Broadcast System to advise residents to leave their homes and neighborhoods. OPIP 3.8.1, 3.8.2. 23/ Each of these steps i 22/ See Contentions 5 and 6; Plan 3.1, 3.3, 3.5; OPIP 2.1.1, l El.1~~7.6.1, 3.8.2. l 23/ The following is the partial text of LILCO's general emer-gency broadcast messages (Footnote cont'd.) 1
must be taken if LIICO's Transition Plan is allegedly to have any substance. Although LILCO proposes to assume responsibility for making decisions to protect the public, the Transition Plan al-lows the individual who will make these determinations a wide range of discretion. LILCO's Plan does not dictate what ac-tions should be taken in a given situation; instead it sets (Footnote cont'd.) A General Emergency was declared at (time) today at the Shoreham Nuclear Power Station. The General Emergency condition . . . indicates that there has been a failure in plant safety systems. A release of rediation occurred at (time) . . . The Director of Local Response [a LILCO empicy-ee] . . . has recommended the following publice actions:
- 1. All schools within the 10-mile emergency planning zone are advised to evacuate students to predesignated relocation centers. Parents should not drive to school to meet their children . . .
- 4. People within emergency planning zones . . .
should evacuate as soon as poscible away from Shoreham. . . . People are advised to close all windows, turn off all appliances, extinguish any fires, close fireplace dampers, and lock all doors before leaving their home or business. In addition, they should take blankets, pillows, and medi-c'tien with them. People asked to evacuate could expect to be away from their homes for several days. OPIP 3.8.1 at 19-20. The iall text of this and other emergency messages is found at OPIP 3.8.1 at pages S-23 and OPIP 3.82 at pages 11-32.
1 i l forth a precedure by which the Director of Local Response will obtain advice from various sources before making these deci-sions. .OPIP 3.6.1;-Plan 3.6 and Table 3.6.'1. The Plan also provides:that any final determination regarding protective ac-tions should take into account both - factual matters such as .the amount'of radiological release,. time of day and weather condi-tions and public policy factors.such as the best course of ac-tion for schools, hospitals, nursing and adult homes and the general public. OPIP 3.6.'l; Appendix A, Part II. Thus, a LILCO employee with only an obligation to this private corpora-tion is charged with balancing numerous considern'.lons for determining that a radiological accident is significant enough that the public should be notified. That LILCO employee re-tains broad and total discretion to make protective action rec-ommendations. Plan 3.6-4. In sum, LILCO's Transition Plan leaves no doubt as to what LILCO plans to do. Contentions 5 and 6 challenge LILCO's legal authority to make basic public decisions and to declare an emergency.
- 2. Evacuation and Traffic Control Second, the State and County challenge LILCO's legal authority to control the evacuation of the public from the 10-mile EPZ in the event of a serious radiological accident and
Ys
- to direct the resulting traffic. ContentionsE l,'2, 3, 4, 6 and 9.- LILCO's Transition Plan clearly provides for such an evacu-ation under certain circumstances. TheLState and County assert.
that LILCO'will manage and direct traffic if an evacuation is required. In particular, the St' ate and' County challenge LILCO's legal authority'to' direct traffic, Contention 1;'to block roadways, set up barriers in public highways and "chan-nel" traffic, Contention'2; to post permanent traffic signs on public roadways, Contention 3;' to remove obstructions: from roadways, Contention 4; to perform all command and control; functions and to manage and coordinate the evacuation and the total emergency response, Contention 6; and to dispense fuel
]
from tank trucks to vehicles which run out of-gas, Contention
- 9. Finally, the State and County challenge LILCC's authority to assume responsibility for security, access control and re-lated functions at relocation centers during an emergency, Con-tention 10. At base, the State and County question the author-ity of LILCO to assume responsibility for relocating more than 100,000 persons from the 10-mile EPZ. See Plan 3.6-6; Appendix A at III-2.
LILCO's Plan recognizes that circumstances could de-velop whereby members of the public may be advised to evacuate , i their homes for an indefinite period of time. Plan 3.6 6. LILCO's Transition Plan demonstrates that an evacuation of the 10-mile plume exposure pathway EPZ Will entail a massive 1 l l
~
' unocrtaking requiring the exercise of the very activities that
-the State and County challenge. The Shoreham 10-mile EPZ con-stitutes an area of approximately 160 square miles with a 198C winter population of over_ 113,000 persons. Appendix A at III-2. Evacuation of th'at area would entail relocating chil-dren from 38 public and parochial schools and 13 nursery schools. Appendix A, Part II. Evacuation would. necessitate the relocation of persons in 10 adult nursing-homes and 14 fa-cilities for the handicapped, requiring a total of 26 buses, 113 ambulances and 209 vans. Appendix.A at 12-12, 18, 28; at IV-166 to 168, 172, 175.24/ .LILCO will use 333 buses to.evacu-4 Lte the general public without cars. Appendix A, at IV-74b.
LILCO estimates that the entire LERO operation will require 1363 LILCO employees and other personnel to carry out Plan functions. Plan, Figure 2.1.1. The LERO evacuation coordinator, a LILCO employee, would direct and coordinate the evacuation and would be respon-sible for actions related to traffic control. Plan 2.1-4. An evacuation would require approximately 147 traffic control posts, manned by 193 traffic guides and utilizing around 600 24/ The numbers of busses and other figures used in this por-tion of this Brief are from the LILCO Plan. As is clear from
- the County / State Proposal Findings of October 26, we challenge the number of buses LILCO believes will be required. For pur-l poses of the State law legal authority issue, however, the pre-cise number of buses which will be required does not need to be rosolved.
I i
{- 1 ~
? '1 y
y?-= voi '
~
Ltr$ffic' cones and 173, flashing lights. ' Appendih:. A,' . at 'IV-52 ~. CS - . r
!through 65. This private group will effect<an extraordinary ch'angs in the legalfdriving. patterns in the 10-mile EPZ by2
?using road blocks-to cordon the:immediate: plant'Larea, Appendix-
^
A' at:IV-5; t by using LILColcars J to . block certain throughilanes 3- fandLthereby controlutraffic' travelling on Sunrise Highway, - Nichols' Road and the Long Island Expressway, Appendix 1 A, ratt
, IV-7;'by authorizing.the'use of road'shoulderscand creating-
- j. ' lanes for " turn pockets", Appendix A at ~ IV-10 through 13; by 1.
- converting a two-mile stretch of a two-way
- road ~to a one-way
, road,-Appendix A, at IV-8; byfauthorizing traffic movement: 4 against;the traffic lights-to maintain ~a continuous flow,-Ap-pendix A, at III-ll and IV-9; by restricting persons located outside the EPZ from. entering the EPZ during'an evacuation, Ap-
{ pendix A, Eat IV-8; by dispensing fuel to evacuating vehicles-e 'which run out of gas, Appendix A,' at IV 176; and by pushing disabled vehicles from traffic lanes. OPIP 2.1.1 at 35;'OPIP .l - l 36.3 at 2; Plan.4.4-3.-LILCO will also install trailblazer signs along evacuation routes marking out evacuation direc-f tions; those signs are to.be posted by LILCO employees on pub-lic highways in advance of any emergency. Appendix A, at-
.IV-70. Finally, the Transition Plan contemplates that during an emergency, relocation centers will be established "to pro-i vide monitoring, decontamination, temporary housing, feeding,
- and'-first aid for. evacuees." Plan 3.6-7. LILCO employees are p
{
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J. i p,
- . -. - - , --. , ~ , , . - . .- . - - . -...---,-_,..-.,__..--.,-.,...A..-
3
-(.
c
- }
I assigned responsibility for directing traffic..to .these centers
- and' performing other. functions. . 'OPI P '- 2.1.~ 1.~ at~ 60-61. -
Thus,yLILCO's' Transition-Plan confirms that.LILCO in-
- tends to carry outithe:very functions that the State:and County-challenge.:
- 3. Other Protective Actions In The 50-Mile Area Third, the State:and County challenge LILCO's author-
~
- ity. to decide-what actions should'be taken to protect.the health and safety of persons within the 50-mile. ingestion.erxpo-sure pathway and communicating these~ decisions to the public..
f Contentions 6, 7 and 10. 1 LILCO's Plan clearly sets forth 'the' actions it in-- tends to perform. Thus, it provides - t.hr.t. s in the Levent of a-radiological release,'LILCO will assume responsibility for mak - 1 ing-protective action recommendations for-the entire 50-mile t ingestion exposure pathway EPZ. Plan 3.6-8; OPIP 3.6.6 at-1, l In. Under the Transition Plan, a LILCO employee,-the Director of Local Response, will decide what " protective actions" to recommend for' the 50-mile ingestion pathway zone. OPIP 3.6.6
- at'in. LILCO may recommend-implementation of any of the fol-
. lowing actions:
4
,- -L '
s,- -,m .- . ._ , , - , ~ . " . . . , e -. .r ,w . ---
Q
~ " '~^ ' '
g' c (a)' Removal'of.lactatinp'da'iry animals from contaminated pastures; (b) -Withholding contaminated milk from-the mar-
.ket and diverting the production'ofLfluid milk'for -
~
the production'of dry whole. milk;. (c) Limiting 1the ingestion.of potable water. until the source has'been' checked'and-approve,d fo r - consumption; (d) . Suspending fishing operations until resump - l tion is recommended; (e) . Preventing introduction of-milk supplies
'into commerce;'and (f) Withholding or diverting produce from mar-k?ts.
i See LILCO Plan, OPIP 3.6.6 at 18-21. Thus, it is LILCO and LILCO alone that will decide whether food, water, milk, etc. should or should not bc l consumed by. people both throughoutfthe 50 mile ingestion expo-sure pathway EPZ and beyond. Moreover, LERO's CoordinatorLof
' Public .Information will be responsible for communicating LILCO's decisions to-the public (Plan 3.6-8; see also OPIP 3.6.6), and LILCO will implement the decisior.*; it makes. In 4
m v- m w.- y.-, - ,. ,yq-...ne- -- - . - - - - T '*T ,,5+ e"N -- t fww
. .v
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; addition,1LILCO's' Plan calls'for LILCO.to provide'securit'y at~ h the~ relocation' center l'ocated beyond the 10 mile EPZ.
OPIP12.1.1 at:62,61.
'4.. Re-Entry and Recovery ~
; Finally,.the Staia and. County challenge LILCO's legal authority to make ~ determinatior:a regarding recovery = and
-re-entry-to the EPZ's a'fter a nuclear' accident.- l Contention 8.
The Transition-Plan provides that- he LERO committee
. will " plan and. implement actions-for-the restoration of the af-
- fected areas to their pre-emergency conditions." Plan at 3.10-1; see OPIP 3.10.1. In implementing the recovery.and i
re-entry. responsibilities-that it' assumes, LILCO would perform virtually the sLme activities it must perform to~ implement an evacuation, including communicating with the public, control-
. ling' traffic, providing transportation to the general public, providing security against entry into still contaminated areas i and providing foodstuffs and' drinking water to areas in need.
OPIP 3.~10.1 at 2-4. The Transition Plan also places long-term recovery decisions and operations in the hands of LERO's Health Services Coordinator. 'Jnder the - Plan, this LILCO employee "has [ responaibility for recommending protective actions; for 4. , overseeing the total.related radiological program; and for mod-ifying, relaxing and discontinuing protective actions." I
- Plan 3.11-1.
l i 4
j)v ,
" ^
l0 . H 4 In sum, the State and County challenge and LILCO must conced'c;that.LILCO' intends to' perform basic functions --
~
dec- ^ laration of emergency, direction of an evacuation, imple--
' mentation of protective actions and management;of re-entry.
These functions 'are1 provided--for. in' LILCO's' Transition : Pla'n.
;Each of these functions is an' example of ~a more -basic
- . governmental function: the exercise of.the. traditional govern-L mental;au;hority.to protect the. health, safety and welfareiof' ,
the.public.- Protection of the public is'the essence of govern-t' mental power. Exercise-of the. State's basic power to govern has not been, and cannot lawfully be,' delegated to a private I corporation such'as LILCO. .lbreover, LILCO aus a creature of state law possesses only those powers that have been. expressly i { grantedJto'it.: Those powers do not include the police power of' the State. These basic legal principles -- the reservation of the police power to the State and the limited powers of a cor-~ porate entity -- preclude LILCO's exercise of the1 powers in question. Each specific Transition Plan function that the. Con-tentions challenge is a specific instance of the police power. [ .Moreover, each of those functions has been conferred upon gov-ernmental subdivisions of the State. The Legislature has-dele-gated each such function to'particular governmental entities. ,
+ s e v..,'L ,-,;s..
,m. .- .. - , . . . . . . . .m.--. _ , . . . . . - . - - - . . . ,
s-w j IAn express grant'of authority to one party precludes the exercise of that authority by all other parties not'so named. g-, That fact alone precludes? LILCO's exercise of the challeoged
-powers.
These' basic principles and the New York Legislature's specific delegation of particular powers are reviewed below. V. LILCO LACKS THE LEGAL AUTHORITY TO IMPLEMENT THE TRANSITION PLAN A. Basic Legal Principles Demonstrate-That LILCO May Not Implement The Transition Plan. LILCO's position fails to account for two basic legal principles. First, the police power resides in the States under the Tcnth Amendnent to the United States Constitution. Accordingly, LILCO cannot exercise the State's police power or functions derived therefrom absent an express delegation of such power. Second, corporations have only those powers ex-pressly conferred upon them by the State. Accordingly, LILCO cannot carry out the Transition Plan, exercise the State's pG-lice power, or carry out governmental functions unless it proves that the authority to do so has been conferred upon it. )
~
~ .. .,.
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,3 .
' )
- .pe <
s "
. - ' l'. ~LILCO Seeks'to Perform Functions '
That are; Exclusively ReservedJto. .1 1 the StatelandLits Duly: Authorized-Local 5 Governments LILCO seeksyto avo'id'the lnescapable' conclusion.thati
~
(its' proposed, activities-unier the Transition / Plan,;taken indi - . vidually'orias a wholelLconstitute an"exerciseLof the police-power that b'elongs' solely and exclusively to the StateLand,. upon proper. delegation, to'localigovernmenta such asiSuffolk: County.~ The fact remains, however, that LILCO wishes;to.act as the civil authority in thel event of a nucl' ear ? einergency result-L , ing from its operation of'Shoreham. LILCO wishes to actuas. thought it were a-government.- .It.may not law ful ly- do so. 4
~
} a. LILCO's. Implementation of the Transition-Plan ~' Involves an.
;. Exercise of.the'Sta'te's Police l
Power and the Performance of Governmental Functions 4 The: police power is the State's most essential power. l People v. Nibbia, 262 N.Y. 259-(1933), aff'd. 291 U.S. 502' (1934); see East New York Savings Bank v. Hahn, 326 U.S. 230 (1945). The police power embraces protection of'the health a'nd i safety of persons within' the state's territorial domain.. ' The i United States. Supreme Court has held that [t]he protection and . . safety of persons and property is unquestionably at the core of the state's police power ...." Kelley v. .Tohn sen , 425 U.S. 238, 247J(1976); nee Adler v. Deegan, 251 N.Y. 467, 481 (1929) i
-. 41 -
?. i
* .J..w,. , ,wu - , _ , -, ,.e,-..- A * , _ , , , -,M,,,,...y,- y -,n ... .e _-..ys.e m - ,,,,,U-
e (Pound, J., concurring): "[T]he protection of the public health and safety lis one of the acknowledged purposes of the police power of the state."25/ See also Yonkers Community 1 Development Agency v. Morris, 37 N.Y.2d 478, 373 N.Y.S.2d 112 l (1975), app. dismissed, 423 U.S. 1010 (1975);-Silvan v.-Shang, 70 A.D.2d 704, 416 N.Y.S.2d 671 (1979). LILCO's Transition Plan clearly ~ involves an exercise of the State's police power. The Plan itself states that LILCO is prepared to act to protect.the safety and health of the pub-lic. Pl an, 1.4-1. The basic functions at issue relate to the protection of public health and safety and are clearly within the embrace of the State's police power.26/ LILCO's entire 25/ In the present context, Congress and the NRC have recognized that offsite emergency planning is an area involving the police power of the States. See, e.g., the remarks of former NRC Chairman Joseph M. Hendrie testifying before Con-gress: In the event of a radiological emcrgency at a commer-cial nuclear station licensed by our agency, the pro-tection of public health and safety outside the plant bcandary is basically the responsibility of State and local governments. Statemer:t of Joseph M. Hendrie, Emergency Planning Around U.S. Nuclear _ Powerplants: Nuclear Regulatory Commiss:;on Oversight Hearings Before a Subcommittee of the Committee on Government
, Operations, 96th Cong., 1st Sess. (May 14, 1979), et 380, 398-99. See also comments of Senator Hart during the debates .of the 19"60 NRC Authorization Act, Public Law 96-295 (1980): , "[T]he Senate has already rejected the idea of the Federal Gov-ernment imposing itc will on the States in the area of emergen-cy planning. This is an area tradit!.onally set aside for the States." 125 Cong. Rec. S 9480 (July 16, 1979).
26/ Emergency planning and disaster prevention is at the core of the State's police power. See N.Y. Executive Law, {20 et seg. (McKinney). F f
~
l Transition Plan is premised;upop-its assumed right to-~ protect thefheal'th and s?fety of Suffolk citizens within a 50-mile ra-
"~
' dius of 'the..Shoreham . facility and to do so ? in the way it deems. '
most satisfactory. _Moreover, it is' clear'that LILCO~ intends to periorm specific functions that,.by anyfstretch of the imagination, are governmental in nature. It intends to declare an.' emergency and
'to advise citizens concerning steps.they should take to protect
~
themselves. Contentions 5~and 6.. It-intends!to manage'a. rajor, full-scale. evacuation of a 160 square mile area. Contention 6. It intends to close public highways, to re-route traffic, . and to direct and manage the flow of traffic.. ' Contentions 1, 2, 3, 4, 9~and 10..It intends to decide upon and' [ oversee steps to secure public health within a 50-mile radius i ' of Shoreham. Contentions 6 and 7. It intends to oversee evac-4 uation centers for thousands of people. Contention 10. It.in-tends'to deciae when and in what fashion citizens may return to their homes in previously contaminated areas. Contention 8. These are governmental functions. Setting aside
- legal niceties, the Transition Plan, viewed with realism and common sense, establishes that.LILCO intends to carry out func-tions that intrude upon and usurp governmental prerogatives.
l 4 t
s w 'i-
, b.- The Police Power Is Vested In
.The. State-Of:New~ York'And May.
Be Exercised Only By Those';To Whom Such Power Has~Been Lawfully Delegated In the American . constitutional nestem, 'the po'. ice power-la ansinherent attribute ~and' prerogative of state sover-eignty. TeevaC Co.'v. Stern,'301'N.Y. 346 (1950), cert. denied, 340 U.S. 876 (1950); American Censumer-Industries, Inc.
- v. City-of New York, 28 A.D. 2d 38, 281'N.Y.S. 2d 467-(1967);
People v. Ford Motor Co.,'271 A.D. 141,r63 N.Y.S. 2d 697 (1946). The Tenth. Amendment to the U.S. Constitution reserves. the police power to the : States.27/- See Munn v. People of Illinois, 94 U.S. ll3 (1877); Brown v. Brannon, 399 F. Supp. 133, 147 (M.D.N.C. 1975), aff'd, 535 F.2d 1249 (4th Cir. 3976). < ("The exercise of the police power for the general welfare of the public is a right reserved to the states by the-Tenth Amendment to the Constitution.") The police power, as an inherent prerogative of the State, may be exercised only by the State or by governmental subdivisions upon whom the State Constitution.or State statutes confer such' power. Because local governments are creations of i
.I 27/ The Tenth Amendment provider: l The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are ,
reserved to the States respectively, or to the peo- j ple. l l 1
i State law, governmental' subdivisions havu no inherent right-to exercise public powers, and.a Constitutional or statutory basis-for-the-exercise.of such powers must be_ established. Courts have repeatedly held _that even municipal ~ corporations,-whose sole purpose is'to perform. governmental functions, have no in-- herent' authority to exercise' state police powers. Tney may do so only if the' State Constitution cr the State-Legislature, by. statute or charter, confers that power upon them. See In the
, Matter of Bon-Air Estates, Inc. v. Building Inspector of the Town of Ramapo, 31 A.D. 2d 502, 298 N.Y.S. 2d 763, 767 (1969)
("The residual police power reposes in the State, not in'any of its political subdivisions; .ard a municipality can only exer-cise police pover when it has specifically or impliedly received a delegation of such power-from the State."); Incorporated Village of Brookville v. Paulgene Realty Corp., 24 Misc. 2d 790, 200 N.Y.S. 2d 126 (1960), aff'd,_14 A.D. 2d 575, 218'N.Y.S. 2d 264-(1961), aff'd, 11 N.Y. 2d 672, 225 N.Y.S. 2d 750 (1962) ("[T]he residual " police power" reposes in the State, not in its political subdivision, and ... in presuming to exercise it, a .nunicipality first must show a delegation of such power from the State.").28/ A fortiori, private 28/ See also 9200 Realty Corp. v. Lindsay, 34 A.D. 2d 79, 309 N7Y.S. 2d 443, 446 (1970), rev'd on other grounds, 27 N.Y. 2d
-124, 313 N.Y.S. 2d 733 (1970), agg. dismd., 400 U.S. 962 (1970)
("A municipality may only exercise legislative powers, including an exercise of the police power, to the extent that it has expressly or impliedly received a delegation of authori-ty from the State."); Rochester v. Public Service Commission, (Footnote cont'd.)
corporations such as LILCO_have no inherent authority to exer-
.cise NcwLYork State's sovereign police power. LILCO must therefore ~ show -an affirmative delegation of such power before
~
it can " presume" to. exercise it.
- c. The Police Power'Of New York Has Been Delegated Only To Local Governments And~May Not Be Conferred Upon Private Corporations
- i. New York Law Delegates The State's Police Power To i Local Governments
, Local governments'in New York, such as Suffolk Coun-ty, have been delegated "nearly the full measure-of New York's police power" by the Constitution and various State stat-utes.29/. Article 9, 2 of the State Constitution delegates the a police power to local governments as follows: (Footnote cont'd.) 192 Misc. 33, 83 N.Y.S.~2d 436 (1948), aff'd, 275 A.D. 172, 89 N.Y.S. 2d 545 (1949), aff'd, 301 N.Y. 801 (1950); People ex rel. Elkiad v._ Rosenblum, 184 Misc. 916, 54 N.Y.S. 2d 295 T1945), aff'd, 269 A.D. 859, 56 N.Y.S. 2d 526 (1945), aff'd, 295 N.Y. 929 (1946) ("The city, which is a municipal corpora-tion, is a creature of law. The inw defines its pcwers and du-ties. It has no more right to act in excess of the powers granted to it than has a private corporation."). 29/ Hoetzer v. County of Erie, 497 F.Supp. 1207, 1215 TW.D.N.Y. 1980); Lane v. City of Mount Vernon, 38 N.Y. 2d 344, 379 N.Y.S. 2d 798 (1976); Mobil Oil Corp. v. Town of Huntingdon, 72 Misc. 2d 530, 339 N.Y.S. 2d 139, 142 (1972); Grimm v. City of New York, 56 Misc. 2d 525, 289 N.Y.S. 2d 358, 362 (1968).
, ~"[Elvery local 1 government shall'have power tofadopt.
and' amend:loca1Elaws not' inconsistent withxthe provi-sions of this constitution or'any general law
. relating to theEfollowing subjects,
*w***
' "(10) .The gove?:raent,cprotection, order,' con-duct, safety, health and well-being of' persons or property therein."
' ~ N.Y.L Const.~ Art. 9,'$2(c)(ii)(10) (McKinney). The counterpart statutory-reflection of.the Constitutional delegation of au-
~
thority is Section'10 of the Municipal Home Rule Law which con-fers upon counties, cities, towns and villages the authority to cprovide for "the government, protection, order, conduct, safe-ty, health and well-being of persons or property, therein."
.N.Y. Mun. Home Rule Law, $10.1.a(12) (McKinney).
These constitutional and statutory provisions, stand-ing alone, authorize Suffolk County to axercise the State's po-lice power. Neither the Constitution nor the Municipal Home Rule Law contains any provision that could even remotely be interpreted as delegating the State's police power tc private corporations like LlLCO. LILCO does not suggest otherwise. ii. An Express Grant of Government Powers to Specific Entities Precludes the Exercise of Such Powers by all Other Bodies It is a universal principle in the interpretation of statutes that the specific mention of one person implies the
8 exclusion of all others.- Expressio unius ett exclusio
- alterius. ~Thus, where a law expressly confers a particular power upon one person, an irrefutable inference must ce drawn that the Legislature intended to omit;and: exclude all other persons.from the exercise of thtt power. 'See McKinnep's Cons.
Laws.of N.Y., statutes, 240; Combs v. Lipson, 44 Misc. 2d 467,
' 254 N.Y.G. 2d 143, 146-(1964). See also Eaton v. New York City C,onciliation and Appeals' Board, 56 N.'Y. 2d 340, 452 N.Y.S. 2d 358 (1982); Patrolmen's Benevolent Association v. City of New York, 41 N.Y. 2d 205, 391 N.Y.S. 2d 544 (1976).
LILCO's basic premise-in this proceeding, as reflected in its legal authority statement in the Transition Plan, is that New York law does not prevent it from performing governmental func+ ions. LILCO's argument is simply wrong-headed. LILCO must show an affirmative delegation of such power before it can claim to perform the challenged func-tions. No such delegation exists. Moreover, such porars have been conferred upon the State and its political subdivisions , both generally and specifically. The Legislature's action in granting such powers to particular governmental entities evi-dences its intention to exclude all other entities, such as private corporations, from the exercise of such powars.
3 iii. New York State May Not Lawfully Delegate The Exercisa Of Its Police Power To Private Corpora' ions Such As - LILCO - The State has conferred:the' powers in quest' ion upon State and local governmental authorities-and no't upon-private corporations such as LILCO. Moreover. if the Legislature at-tempted to delegate the State's police power:to a private ;or-poration such as LILCO, that action would +:onstitute an unlaw-
' ful delegation'of governmental powers.
A state'nas no power to bargain away its police power where related to fundamental matters of public health, safety or morals. Beacon Syracuse Associates v. City of Syracuse, 560 F. Supp. 18G, 199 (N.D.N.Y. 1983). This principla is firmly established under our con-stitutional system.30/ In tne leading case of Fink v. Cole, 30/ See generally the frequently cited case of Rouse v. fhompson, 228 Ill. 522, 536, 81 N.E. 1109 (1907), in which the Illinois Supreme Court stated: , "We have .... examined the reported cases with care and have been unable to find any case .... where the delegation of power to an individual or a number of individuals has been sustained by the courts. The general rule is that such power cannot be conferred upon a private person; but must be delegated, if at all, to some public agency, such as a municipal cor-poration, commission, local' board or public officer. The principle of Rouse has been followed repeatedly in the New York cases. See 20 N.Y. Jur. 2d, " Constitutional Law" {l83 (1982). . e
e l
.11 j 1
302 N.Y. 216'(1951), the New York Legislature delegated to stewards of The Jockey Club, a private corporation, power to
. grant or refuse licenses to horse owners, jockeys and trainers.
Although acknowledging that this grant of power to a private corporation may have served a useful purpose (maintaining prop-er control over race meetings), the New York Court of Appeals
- nevertheless held the delegation unlawful. The Court observed that by issuing licenses, The Jockey Club was exercising "es-sentially a sovereign power." 302 N.Y. at 224 Yet, its stew-ards "are officers of The Jockey Club who are neither chosen by, nor responsible to the State government." Ibid. The Court concluded that this delegation of sovereign powers to a private corporation was unconstitutional:
In our view the delegation.by tne Legislature of its
~
licensing power to The Jockey Club, a private corpo-ration,-is such an abdication as to be patently an unconstitutional relinouishment of legislative power in violation of section 1 of article III of the Con-stitution of this State which provides: 'The legis-lative power of this State shall be vested in the Senate and Assembly.' Id. at 225. New York Courts have repeatedly reached the same result in other cases,31/ as have the courts of other 31/ See, e.g., Builders' Council of Suburban New York, Inc. v. City of Yonkers, 106 Misc. 2d 700, 434 N.Y.S. 2d 566, 567 (1979), aff'd, 79 A.D. 2d 696, 434 N.Y.S. 2d 450 (1980) ("An abdication of legislative power to a private party is unconsti-tutional. Delegation of sovereign power is unauthorized."); Farias v. City of New York, 101 Misc. 2d 598, 421 N.Y.S. 2d 753, 757 (1979) ("The Society is not an agency of the City of New York and there is no legislative standard for the exercise or review of its power."); Podiatry Society of Ncr York v. (Footnote cont'd.) y - _
. .__c-
w e jurisdictions.32/ The principle that sovereign governmental a functions cannot lawfully be delegated to private individuals h or corporations embraces not only the legislative function but all sovereign powers of the State, including, speci fically, the , police power.33/ g - F [ (Footnote cont'd.) . Regents of Univercity of New York, 78 Misc. 2d 731, 358 N.Y.S. E 2d 276, 279 (1974) ("[T]he interpretation urged by petition would result in an unconstitutional delegation of governmental powers to e private corporation ...."); Fifty Central Park West u Corp. v. Bastien, 60 Misc. 2d 195, 302 N.Y.S. 2d 267, 271 (1969), aff, 64 Misc. 2d 911, 316 N.Y.S. 2d 503 (1970) 7 ("[P]ermittIng an interested private association to possess I what in effect would be legislative power is an unlawful dele-p gation of such legislative power."). R-i 32/ See e.g., United Citizens Party of South Caroline v. E South Carolina State Election Comm'n., 319 F. Supp. 784, 787 A (D.S.C. 1970) ("It is a black letter rule now eo firm y fixed that it is found in legal encyclopedias that a legislature may p not delegate legislative functions to private persons or atso-n ~ ciations."); Hetherington v. McHale, 458 Pa. 479, 486, 329 A.2d 250, 254 (1974) ("[P]ersons who make governmental decirions ? [must] be either elected by the people or appointed by the rep-resentatives chosen by the people."); Olin Mathieson Chemical 1 P Corp. v. White Cross Stores, Inc., 414 Pa. 95,
~~
9r, 199 A.2d [ 266, 268 (1964) ("The vesting of a discretionary regulatory . g ower over prices, rates c r wages , in pricate persons violates : - t the essential ccncept of a democrctic society and is constitu- ^ g tionally invalid."); Cade County v. State of Florida, 95 Fla. '
- r. 465, 476, 116 So. 72 (1923) ("[T]he exercise of sovereign gov-ernmental powers ... may legally on exerted only by officials
_ duly commissioned for that purpose. The Constitution does not E :ontemp' ate that essential governmental poser or authority may g be exercised by a corporate agency whose members are not duly : s y commissioned of#icers."). : w
- 33/ See Patrolmen's Benevolent Ass'n v. City o# New York, 59 2d 986, 990 (1969) ("[G]overnmental Misc. 2d 556, 299 N.Y.S.
functions and responsibilities cannot be surrendered by con- - +ract ... where pc ice power and public sa fety and wel fare are k involved."); Yanow v. Seven Oaks Park, 18 N.J. Super. 4?', 87 . E - A.2d 454 (1952), modified on other_ grounds _, 11 N.J. 341, 94 A. (Footnote cont'd.) b b
T i In~ sum, theLpolice pcwer LILCO seeks to exercisa re-~ 'l sides'with,the/ State of.New York. It has not been and-could not be delegated to a private corporation such'as LILCO.-
- 2. Corpo' rations May-Exercise Only-Those Powers Expressly -
' Conferred Upon Them By the State Corporations are state-created entities. Unlike.nat-
~
ural persons, ccrporations possess r.nly those powers that have been conferred on them by the state of their incorporation.34/L When an issue arises as to the existence of a particular corpo-rate power, some basis for that power must be found in the laws under which the corporation operates. Corporate powers do not exist simply because they are not expressly prohibited.35/ (Footnote cont'd.) 2d 482; North Carolina Ass ' n for Retarded Children v. State of North Carolina, 420 F. Supp. 451, 456 (M.D.N.C. 1976). 34/ See, Je. ., Schwab v. E.G. Potter Co., 194 N.Y. 409, - TI909); Robia Holding Carp. v. Walker, 257 N.Y. 431, 438, fl931) ("No corporation, public or private, pay exercise powers not granted by the State ...."). See also 14 N.Y. Jur. 2d, , " Business Relationships," $340 (1981) ("[Clorporations, being creatures of the. law, have no powers except those conferred by statute, directly or indirectly."). Moreover, it is clear that federal law cannot confer upon LILCO powers that it does not have under the law of its incor-poration. See 6 Fletcher, Cyclopedia of the Law of Private Corporations, 2477.(Rev. perm. ed. 1979): "The powers conferred on a corporation by its charter and the laws of time state creating it cannot be enlarged by federal statutes." 35/ For a thorough di scussion of these principles, see 6 Fletcher, Cyclopedia of Corporations (( 2476-2486 (Rev. perm. ed. 1979).
^
-LILCO' attempts to stand reality onLits headsand' contend that it l
fy may"do?anything under the sun if there is.no specifically'ap .
/* ~
plibable,< state prohibition. .Thus, LILCO suggests that it.may
- implement ^the Transitio'n. Plan unlesszexpressly prohibited by.
~ State-law from-doirg_so.
In fact, LILCO'has no power to adopt. and " implement that . Plan unless it" can ' identify an' express or., implied basis,for.the exercise of that power in the New York-laws under which it exist's. J LILCO's' express powers are set forth fn'-(i)-section 11 of the New York Transportation' Corporation-Law (McKinney)- and (ii) section 202 of the New York Business Corporation Law (McKinney). . None of these express powers' authorizes LILCO's Transition Plan or would even remotely-permit LILCO's assump-- tion of the powers it purports to. possess.31/ 35/ .Section 11 of the Transportation Corporation Law grants , electric corporations and gas and electric corporations the nower to generate, acquire and supply electricity for heat or ' power to light public streets, places and buildings.~ 'In addi-tion,. such corporations are empowered to acquire and dispose of necessary machinea and to transmit and distribute electricity through suitable wires and other conductors. Such corporations can use streets, public parks and public places to place their poles, pipes and fixtures, but only with the concent of the mu-nicipal authorities. These corpore.tions also have power to ac-quire real estate, for corporate purposes, but only in the man-ner prescribed by the eminent domain procedure law. Thus, even in areas necessary to the conduct of their businesaes, utilities can act only under express legislative grants of power tnd with the' consent of municipalities. Section 202 of the Business Corporation Law sets f:,rth sixteen " general powers" that are common to all New York corpo-rations-(e.g., the power to have perpetual duration, to sue and be sued, to mak2 contracts, to hold property and the like). I'r
,-e _,. , - - r, - , . , , , . - . . _ . - -
. - ~ , -
n, -,-- - - ,
'l 1
l I Accordingly, if'LILCO has any power to implement'the Plan, that power must be implied. Here, again, no basis for; LILCO's assumption of the State's police power exists. Al . though corporations have implied au'thority'to exercise power's that'are "necessary or convenient"'to' carry out their express
~
powers,.a. corporation has no implied authority to perform any act that furthers its corporate interests.37/ The lawfis well established that: - [a corporation] cannot, any more:than can an individ-ual, do acts prohibited by law or which are against public policy. No charter powerLcan be' conferred upon a corporation to do such acts, and no implica-tion of such power can arise.38/ This' principle has been frequently applied 39/ and is 37/ The doctrine of " implied powers" arose at common law. Section 202(16) of the Business. Corporation Law codifies the common-law by providing that all corporations operating , thereunder may " exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is - formed." 38/ 6 Fletcher, Cyclepedia of Corporations $2491 (Rav. perm. ed. 1979). 1 39/ See, ., Hadlock v. Callister, 85 Utah 510, 39 P.2d 1082 II935TT"[ge .TJhere can be no implied powers to do any eat which is contrary to the statutes or the public policy forming'the basic powers of the statutes."); United States v. Northern Securities Co., 120 F. 721, 727 (1903), affd, 193 U.S. 197 (1904) ("LW]hatever powers the incorporators saw fit tc assume, thcy must hold and exercise for the accomplishment of lawful objects."). See also Security Trust & Savings Bank v. Marion County Banking Co., 287 Ala. 507, 253 So. 2d 17 (1971) (No ex-- press or implied -corporate power exists to engage in branch
-banking in contravention of state policy against branch bank-ing.); State v. Jefferson Lake Sulphur Co., 36 N.J. 577 178 A.2d 329 (1962), cert. den. and app. dismd., 370 U.S. 158 (1962) (No express or implied corporate power exista to circum-vent state escheat policy.).
n
- dispos'itive of~any claim by LILCO that it has an implied power powerito carry out tha Transition Plan or-[serfor:r governmental functions. As-previously discusseG, the Tenth Amendment re-serves general police powers to the State. -Under New York law,
~
the police power can be exercised only by the State or, upon
- proper _ delegation,'by its political subdivisions. The police power has not'been, and-could not be, delegated to LILCo. Ac-cordingly,.the law and public policy of New York' preclude pri-vate corporations from assuming the police power-or.from per--
forming governmental functions. The Transition Plan involves the assumption of-inherently governmental powers.. Its-imple-mentation cannot, .therefore, be sustained as an exercise of LILCO's implied corporate powers. In sum, New York corporate law does not grant LILCO the authority to exercise the State's police power or to per-form the governmental functions set forth in the Transition Plan. Accordingly,_LILCO cannot lawfully' implement the Transi-tion Plan. 2
;r - ,.
n , -
, l n >
3.5 - q !' B'. : - The Legis1'ature E3s-Specifically Delegated Particular Functions ,~f
- : Embraced By-The Transition Plan 4 >
N : To State And-Local Governments.
"Al previously discussed,1the New York: Constitution
. andithe Municipa)<Home RuleLLaw confer?the State's general.po-lice-power upon11ocal governments.: In addition, the~Legisla-ture-hss-specifically a'uth6rized'the State and/or' local govern-
. ments to engage in emergency planning and disaster respo.tse_ac-
- tivities and to. exercise particularffunctions th'at are essen--
~
tial-elements of the Transition Plan. That' express = delegation
- forecloses LILCO's effort to discharge the~same' functions. The-State's delegation of the powers in. question maylbe seen:from ,
two. perspectives: (.i) the delegation _of general emergency e planning and response powers; and-(ii) the delegation of spe-cific powers employed in emergency situations.42/J 1 l-40/ LILCO's Transition Plan. appears to assume that New York j State statutes must expressly preclude it trom exercising gov-l ernmental functions.- See also LILCO October 15 Brief, at 11. Nothing_ could be further from the case. The State Legislature has acted to identify those governmental bodies that have par-- ticular powers, ar.d State court s have consistentJ y held that
- such positive a.uthorization, even of governmental bodies, is a
{- precondition to the lawful exercise of governmental functions. t Moreover, the Legislature need not expressly identify every category of persons who may not exeicise ccrtain functions; its express grant of suthority to particular persons _who may do so
-is sufficient evidence of its intention. As previously discussed, where the Legislature expressly grants such powers to governmental entities, its action necessarily entails that
. other entities, _ such as private - corpc rat ions, have no such au-j.' Lthority. McKinney's Cons. Laws of N.Y., Statutes, YTO: Combs
.v. Lipson, 44 Misc. 2d 467, 254 N.Y.S. 2d 143, 146 (1964).
t-O 1
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~
Q' u i
-1. . Executive Law,. Article 2-B, Confers Broad Emergency Planning Powers Upon State And Local Governments The Transition Plan inv31ves emergency planning-and.
' entergency -response . The New York Executive Law addresses the
. distribution'of powers held by the Executive Branch of the State Government. Article 2-B of the Executive Law specifically authorizes State and local government emergency planning activ-lities and confers all such powers upon such governmental entities.dl/ Article' 2-B establishes a framework for State and local cooperation in planning and preparing for emergency re-sponses to all kinds of disasters, including, specifically, nu-clear accidents at e'lectric generating facilitics.d2/ Thus, Article 2-B.cteates the Disaster Preparedness Commission
("DPC") and authorizes the DPC to coordinate the overall State response to any disaster and to prepare a state disaster pre-paredness plan (Sections 21 and 22). Article 2-B authorizes each county and city to prepare disaster preparedness plans and 41/ The Contentions challenge functions related to emergency planning. The Executive Law is specifically cited as a bar to LlLCO's conduct of such functions in Contentions 5, 6, 7, 8 and 10. 42/ Section 20 of the Executive Law defines " disaster" to mean an "occurrer.ce or imminent threat of widespread or severe dam-- ages, injury or loss of life or property resulting from any natural or man-made causeu, including .... radiological acci-dent .... " N.Y. Exec. Law $20.2.a (McKinney). Section 29-c defines " radiological accident" to include an accident " occur-ring at a nuclear electric generating facility." Id. s29-c.1(c).
Ib~ "i r p g ide$tifies areas-of disaster prevention and response'that"such-plans should address-(Section 23). The remaining sections ~of' Article 2-B address the delegatice of authority--to react to, rather-than.to planLfor, a. disaster.- Again, these sect 37ns'
~
contemplate that disaster operations will be^under the complete control'of local governments with State assistence when neces-L sary. No provision of Article 2-B expressly authorizes any private corporation to engage in emergency response activi-ties.43/ No section of Article 2-B authorizes any private cor-- porat!an to prepare or carry out emergency plans or-to engage in the wide-ranging emergency planning and disaster reaction activities LILCO contemplates. If the State Legislature had intended to delegate the State's police power and broad-scale emergency planning and disaster response authority to utilities such as LILCO, it would have done so in cleari explicit lan-guage. 43/ See also discussion infra at pp. 74-76. I
+. _
k
. 2. : ~ine Legislature _Has; Delegated' J
- The Essential Functions Of The U l
Transition Plan ro State Or Local-Governments The Legislature has also delegated-to the State and local governments the authority to carry out the basic func-
. tions contained in the' Transition Llan. Each of the basic functions in' question is addressed by State statutes that ap-portion such powers between State and local governments and control the exercise of.such r6sponsibilities.
- a. Declaration Of A Public Emergency And Basic Decisions Concerning- '
, Protective Actions-Contentions 5 and 6 challenge LILCO's authority to declare a public emergency, to activate sirens and direct emer-gency brcedcacts and to make basic decisons concerning protecitve actions. Contentions 5 and 6 reference the New York Executive Law and the Penal Law. Article 2-B of the Executive Law confers upon State and local governments the specific pow-i ers that LILCO purports to exercise. Thus, $28(1) empowers the Governor, under certain circumatances, to declare a disaster emergency by executive order, and $24 empowers chief executives of local governments to proclaim a local state of emergency or, in the case of radiological accidents at nuclear generacing fa-cilities, to request the Governor to declare such an emergency. There is absolutely no suggestion in Article 2-B that a private
J
% 5
( y corporation may-take the. extraordinary st'ep of declaring la
- public' emergency and, broadcasting its declaration to the gener-
- al'public.
Second, . Article.2-B specifically. authorizes'the Gov-L ernor "or.his. designee" to direct local chief executives or emergency services organizations to notify the-public that;an emergency exists and to take appropriate protective actions in the event of a radiological accident ( 28(2)). Although LILCO claims that LERO is an " emergency: service organization", Article 2-B clearly specifies that even'an emergency service organization is empowered to communicate with the public about t. emergency conditions only at the Governor's direction. Third, Article-2-B specifies that State.and local di-saster preparedness plans may include _mystems for warning, and plans for communicating with, endangered ' populations ($$22(3)(b)(3) and (5) and 23(7)(b)(3) and (5)). =Similarly, E Article 2-B authorizes chief executives of local' governments to decide upon appropriate protective actions and to promulgate local emergency orders to protect life or property ($24(1)).
- The entire thrust of Article 2-B is to provide ample authority
- to local governments to engage in dicaster prevention and to respond to actual disasters, calling upon the state for such assistance as they may require.
.v- ,. , 7- w_. -=sw-- y- ,--,, ,-- , .___g-,. - - . - ._ s ,, . , . . _ - - _ _ , . _ _ _ _ _
A ' / m . .. - . 3,
~
-0 L
[Articlef2-B does"no't$authoriri private. corporations?
~
~
sto notify.theLpubIic conce'rning. emergencies,:to:establishL"emer-
~ ~
x 4 1
;gency warning systems,ztoidecide uponsappropriate. protective
. -_ actions or,'Lmost fun'damentally, toideclare'publieremergencies. q J on their own say-so.-
, Finally,1the Contentions;also reference Penal Law, ~
($195.05:which'statesiin'materialpart:
"A; person is' guilty:of.
I obstructing governmentalia'dministration when he intentionallyf
- . ... perverts-the' administration af law or other governmental t
- function ... by'means of any independently; unlawful act."
>- .c LILCO's unauthorized and unlawful' usurpation of powers-express- .
'ly vested in the: State.and local governments fallsLsquarely within the embrace of this statute.
Similarly, Penal. Law $190.25 prohib'its any: individual-from acting-as though he is a "public: servant or.is acting _with-approval or authority of a public agency or department." ~ This is exactly'what LILCO would do in declaring and broadcasting a
, public emergency,Ein exercising " command and control" functions f
and in making the sole " decision.to: notify and implementLpro-
, tective: actions for the general public." Plan, 2,1-1.2; OPIP 2.1.1 at 5. It is hard to imagine anything that is more' pre-cisely akin to acting as a public servant.than recpmmending on-an emergency broadcast _ system a general evacuation of a 160
- - square mile territory populated by more than 100,000 residents.
I i i -
- - ~ . . . . . . . . . - . . . - .- -. . - _ . . - _ . . . . . . . - . . - , - . . - - . , - . - - . - - -
. yf
~
b.- Evacuation'And Traffic Control Contentions 1, 2,!3, 4, 6, 9'and-10 challenge LILCO's authorit y to carry. out an evacuation,o to -direct evacuation traffic and,'in' connection' therewith, to manage evacuation cen-ters. These Contentions refArence 'the New York? Executive Law, the Vehicle and. Traffic Law, the-Transportation Corporation Law and the-Penal _ Law as well as.Suffolk County and'Brookhaven codes.d4/ Article 2-B also empowers state and local govern-ments, but not private corporations, to perform the evacuation and traffic control functions set forth-in the Transition Plan. Article 2-B provides'that emergency preparedness plans prepared by State or local governments may include provisions for'coor-dinated evacuation procedures and controls upon ingress and egress to and-from' disaster areas (${22(3)(b)(6) and (13) and 27(7)(b)(6) and (13)). Local chief executives are given ex-traordinary powers-concerning the prohibition and control of 1 pedestrian and vehicular traffic, and similar authority is embraced by the executive order powers conferred upon the Gov-ernor ($ 24(1)(a) and (b) and 29-a(1)). Article 2-B does not authorize private' corporations to control traffic, to set aside 44/ LILCO's lack of power to carry out these functions under the Transportation Corporation Law and New York corporate law is discussed supra, at pp. 52-55. 1 w: - Uf existing governmentsi traffic. controls,.to establish or implement'._ evacuation procedures or_to assume _.or share any. pow-era specifically. conferred upon State and local ~ governments. By-vesting _such' powers in State'and local governments, Article 2-B
~ ~
clearly precludes other entities from-' exercising such powers. Similarlyi the New York Vehicle and Traffic Law vests in the State "the exclusive power'to control the use of motor-s vehicles on public highways." People v. Evans, 205 Misc.-886, 131 N.Y.S. 2d 412,'414 (1954). Local governments.may regulate and control the streets and the -flow of . traf fic only where ex-pressly authorized to do so,by the State legislature.. See, e.g., People v. Grant, 306-N.Y. 258, 260 (1954): "[S]treets-are subject exclusively to regulation and control by.the State as sovereign, except to the extent that the legislature _ dele-- gates power over them to political subdivisions and municipal corporations." See also Article 35, Vehicle and Traffic Law; People v. Scanlan, 27 Misc. 2d 442, 211 N.Y.S. 2d 635 (1961). If express statutory autForization is required before local government ofriciala may direct or control traffic, such ex-press authorization is clearly required before any private en-tity, such as LILCO, can exercise such control. No such delega-tion to private corporations exists. The same point is demonstrated by Title VIII of the Vehicle & Traffic Law which defines the respective powers of w- m- w mm
e--
^
the! State and~ local authorities.to regulate traffic. Title VIII! delegates'the power to. regulate' traffic to specific gov-
;ernmental. authorities: the State Department of: Transportation
.andiother' state authorities ~(Art. 36, 37); public nuthorities and commissions-(Art.'38); cities and.villagesE(Art.~39); Coun-ty Superintendents of Highways (Art. 40); towns (Art..41);
localEauthorities and school _ districts-(Art. 42); ano' County [ traffic safety: boards (Art. 43). ~ In each_ case, specific legis-
~
-lative authority. supports each government's traffic control'
-powers. No corresponding Article gives any such authority to private-corporations.. Again, it is. clear that the' Legislature did not intend that private corporations should have or exer-cise such powers.
Soveral other sections of'the Vehicle and Traffic-Law either confer specific traffic control functions upon civil au-thorities but not private corporations _or, alternatively, pro-hibit unauthorized persons from performing such functions. Thus, Section 1110 requires obedience to " official traffic-control devices ... unless otherwise directed by a traffic or police officer." LILCO's Transition Plan presup-poses that LILCO employees will direct traffic and " facilitate" the flow of traffic without regard to existing traffic light patterns. See Appendix A, III-ll. Such actions are contrary to $1110 and are unauthorized.45/ 45/ See e.g., FEMA comments: "[T]raffic control guides will not be able to put signals on " flashing" operation .... This is (Footnote cont'd.) y - -.
-3. ,
a; . - T - . p; Section"1602.of the Vehicle'an'dnTraffic Law autho-5
*:rizes " police officer (s)LorLiother person (s)l.Lempowere'd tofregu-
?lateitraffic atltheiscene" to-regulate trafficLin an; emergency.1 That'Section'does notrempower private individuals or. corpora- ,
-tions -to1 perform - such$ functions ~ unles.s; they are "empowe- ed.It o
~
regulate traffic"# moreover,.1$1602 clearlylindicates..thatidue'- authorizatic~n is required beforela person can" lawfully. perform temergencyitraffic control functions.; LILCO' intends lto. perform 1l emergency traffic (controlffunctions,1but:lt offers no' legal-basis.for'its authority to do so.- . Finally, it is clear.that State-law-prohibits LILCO's intended use of trail; blazer signs,. cones and barriers to
" channel,"'" facilitate" or " direct". traffic.- LILCO asserts that trail blazer signs are to be located along'every major- _
road to mark escape routes for evacuees fleeing the EPZ. -See n . . Appendix A, IV 10. Section 1114 of the Vehicle and Traffic Law 4 specifies that No person shall place, maintain,~or; display upon or in view of any highway any unauthorized sign, signal, 2 i (Footnote cont'd.) a disadvantage since existing signals may be counter to the , . control' strategy the guide is trying to implement. The confu-sion which may.be generated by traffic signals differing from + traffic control. guide strategies could reduce intersection ca-pacity'and increase evaluation time." Element by Element Re-view-of the LILCO Transition Module attached.to June 23, 1983 LetterEof Richard Krimm, Assistant Associate Director of FEMA, to Edward L.-Jordan, Director, Division of Emergency Prepared-ness and' Engineering Response, NRC, p. 2 .' ?
-,se. , . - e e r--g. - w - F y--e+ee-.rw-<*- t, e%e* - -e -w
7 ,- s . , 1 markingfor device which_ purports to be or is an imitation of or
> resembles or'is'likely to be construed as an official traffic
- cont'rol device ..., or which-attempts to' direct or regulate:the movement of' traffic." Each of LILCO's traffic direction'and control devices -- trail: blazer 1 signs,;conea, barriers _and parked cars on public highways -- falls with several clauses of this prohibition. . Each is therefore impe.rmissible.:
Finally, as previcusly'noted, $$190.25 and 195.05 of the Penal law prohibit (i) acts-which purport to be those of a
. public servant'and (ii) 'the perversion of governmental func-
~
tions through unlawful acts._ Pursuant to the Transition Plan, LILCO employees would.act as though they were policemen and government officials,-directing a general evacuation and con-trolling traffic. The actions here challenged clearly fall within the scope of these prohibitions.
- c. Other Protective Actions -
Contentions 6, 7 and 10 challenge LILCO's authority to make decisions and official recommendations for protective i actions in the 50-mile EPZ and to exercise law enforcement functions at relocation centers. Those Contentions reference the Executive Law, the Vehicle and Traffic Law, the Transporta-tion Corporation Law and~the Penal Law. 1
y- a - - As , t Am5 indicated above,- LILCO' proposes to_ assume respcn-- sibility for making ~ protective. action recommendationsuregarding the production, consumption, use,Lstorage and dirposal of food, milk and water-in.the 50-mile. ingestion pathway,EPZ. .In doing.
~
so, LILCO intends'to exercise authority wh4.ch has.been dele-
, gated;by the Legislature to-specific-State and local' officials-and' administrative agencies.
-The principle. aspects.of this' function are precisely addressed by Article 2-B. Thus, Article-2-B gives both State and local governments broad powers to respond toidisaster situ-ations ( {22.3.b and 23.3.b). Moreover, . in the ' event ' of. a duly-declared emergency, any local government chief executive is empowered to promulgate local emergency _ orders ta) protect life and property. Section 24.1. Thus, local chief executives are expressly granted the very powers that LILCO has purported
-ta) exercise; I TLCO's usurpation of such powers is an attempt to negate the statutory allocation of authority deliberately cho -
sen by the State Legislature. Moreover, Article 2-B: imposes substantive and procedural safeguards upon any local emergency order issued by local chief executives. See (( 24.1.f and 24.2 and 3. These limitations underscore the Legislature's concern sbout the exercise of emergency powers; LILCO, however, assumes the power to act in this area, subject to no limitations other l + l I than those it itself accepts. i l 1 4
. . - -. -- . - . . . - . _ . - - - l
s 1 l 1
'LILCO's actions'also'would violate other State stat-' !
1 utes not7specifically' referenced'in the Cententions but clearly j pertinent to'the legal authority issue.46/ The. purpose of I
- LILCO's protective action recommendations would be~to protect i
the public~ health from the effects of' radiation exposure to_ - Tfood-producing livestock, crops and water' supplies. However,- the Legisleture has specifically empowered the-State Department of Health to " supervise and regulate the'public health aspects-4 of ionizing rodiation :and nonionizing electromagnetic radia-tion...." N.Y. Public Health Law, 201(1)(r) (McKinney). In thic connection, the Department's Public Health. Council, as part of its authority to develop'and amend-the. State's Sanitary Code, has. been empowered to '* establish regulations in L respect to ionizing adiation and nonionizing electromagnetic radia-tion..."; id. {225(5)(p); to " authorize appropriate officers
. and agencies to ... render such inspection and other radiation protection services as may be necessary in the interest :of pub-lic health, safety and welfare..."; id. $225(5)(q); and_to
" prescribe the qualifications of ... radiation safety offi-cars..."; id. $225(5)(b).
In addition to these general powers in connection with radiation protection, the Department has been delegcted 46/ These statutes are at issue in the litigation now pending before the Supreme Court of the State of New York, Suffol?
. County. See Cuomo v. LILCO, Consolidated Index No. 84-4615.
. m _
;particular authority _'over-thelpublic health aspects of food' Section 206(1)(k) of the Public Health-
~
Lexposed.to radiation Law authorizes the Commissioner cC Health,1with the' advice and assistance of the Commissioner of; Agriculture;and Markets, to
" establish rules'and regulations 1to. require such treatment of
~
-food or_ food products ... aus may be necessary for - protection of the:public_ health.against.the hazards-of ionizing radiation."
Id. {206(1)(k). Thus,:LILCO's, plan to: assume responsibility for making _its own protective action recommendations regarding food in the ingestion pathway zone would usurp the Department of ' Health's authority over this subject.. LILCO's intention to make protective action recommen-dations concerning water constitutes a similar usurpation. Ene Legislature has empowered the Department to " supervise and reg-ulate the sanitary aspects of water supplies ... of the state." , Id. $201(1)/1). In this-regard, the Department "may make rules and regulations for the protection from contamination of any or all public supplies of potable water and water supplies of the state. . . Id. Il100 (1). LILCO's Transition Plan would also require LILCO to intrude upon authority delegated to the Commissioner of Agri-culture and Markets over the sanitary aspects of food and milk. The Legislatore has emposered the Commissioner to "[c]o-operate with local health departments and other local agencies in
L 1
. preventing the production,; manufacture',- sale 'or offering for'.
sale Lof . . . deleterious 1or unwholesome food. . . "'.- N.Y. Agricul-- ture and Markets Law,1{l6(24). In addition, the Commissioner has specific authority'to protect and promote "the health and q
. welfare of the. people of [the]' state by inspecting, regulating and supervising.the sanitary quality of milk and.crean
'. distributed, consumed or sold within [the] s tli t e . . .' " . - Id.
$71-1(l').47/.
Thus, LILCO's plan ~to assume-responsibility for' protecting the public ~ from unsafe or unwholesome food, milk and . water resulting:from a nuclear accident at Shoreham would. con-
. stitute an exercise of powers given to the Departments of Heelth and Agriculture and Markets concerning such subjects.
LILCO's plan also involves an invacion of authority delegated to local governments. Specifically,. local boards of health in cities, towns and villages have been authorized to enact regu-lations "necessary and proper for the preservation of ' life and T 47/ See also Agriculture and Markets Law, $16(35) (authorizing the Commissioner to "[i]nvestigate, inspect and supervise all sanitary aspects relative to the production, processing, sale and distribution of milk and milk products"); id. $254(9) (vesting the Department of Agriculture and Markets with power "to supervise and regulate the entire milk industry of New York State, including the production, transportation, manufacture, storage, distribution, delivery and sale of milk and milk prod-ucts in the state of New York,"); and id. {46-9 (charging Com- 1 missioner with the duty, inter alia, of promulgating rules and regulations relating to the manufacture, processing, distribu-
- tion and sale of milk and milk products and the sanitary as-pects thereof).
a_ s l i , ihealth"'which areinot inconsistent'with the. Sanitary Code. N.Y.-Public Health Law, {308(d) (McKinney). _See also id. {228(2),~$347(1),.{352(2). LLocal health officers-are also em-jowered to maintain. sanitary supervision _over_and to enforce the Public Health Law and Sanitary Code within their ju-2 risdictions.- Id.-{324. See also id. {352(2),,$366(1),-{395. In' sum, LILCO" intends to usurp authority which the Legislature has chosenLto-delegate to particular State and local agencies.' Neither -krticle 2-B nor the Public Health Law nor- the Agriculture and Markets Law provides for a wholesale 1 transfer of'the power to protect the public from unsaf6 Sod, milk or. water to any. private corporation. Such a transfar of authority cannot ce implied.
- d. Re-entry And Recovery Contention 8 challenges LILCO's authority to make de-2 cisions and issue official recommendations concerning re-entry and recovery. Contention 8 references the Executive and Penal Laws.
Article 2-B confers specific powers upon State and local governments concerning the re-entry and recovery process. Article 2-u specifically provides that disaster preparedness plans which State and local governments may adopt shall address
" recovery and redevelopment after disaster emergencies"
w c
- . : ($$22(3)(c)_and 23(7)(c)). Thus,LArticle:2-B' recognizes that . ,the recovery' aspect of! disaster response is within the purview of localEgovernmental powers.
Article 2-B also authorizes local governments to pre-
~
pare local recovery and redevelopment plans after a.sta*- di-
..saster: emergency has been declared. Article 2-B specif. . Aly provides-thnt any plan so adopted "shall be the official policy for recovery and redevelopment within'the municipality"
($28-a(7)). Notwithstanding such authorization, the legisla-tive bodies of such municipalities are expressly authorized to determine that such plans are unnecessary or impractical ($28-a(i)). Article 2-B does not assign.any responsibility to private corporations for recovery or re-entry operations.nor does-it authorize such private bodies to perform any such ac-tivities. Notwithstanding the provisions of Article 2-B, LILCO seeks to have its Transition Plan recognized as the official recovery policy for Suffolk County; pursuant to that Plan, LILCO would assume the power to act in place of State and local governments and to usurp governmental prerogatives. Moreover, LILCO's actions in an official capacity are themselves unlawful and would, independently, violate $$ 190.25 and 195.05 of the Penal Law.
Y-I .e; e ^*. ;* .*
;. g . In sum, StateLand local governments have general emergency planning authority pursuant.to.their Constitutional
. police power. .The exercise of that authority is addressed by '
Executive Law,. Article'2-B..-Article-2-B confers no general emergency planning authority upon' private corporat' ions'. More '- over;in. vesting such powers in~ state and'localLgovernments,. Ar-ticle.'2-B necessarily precludes any' independent. exercise or~as- - sumption of such powers by a corporation,.such as LILCO. More specifically, Article (2 -a .and other State - stat-utes expressly confer upon State and local governments ~the power to' carry out the functional components of the Tranteition $ ~ Plan -that 'the State and County challenge.- These legislative enactments clearly preclude LILCO's intended usurpation and ex-ercise of these governmental functions. l 5 4 ) 73 - 1 J 4
.,,w , r --r , - -
--vn- - - + , , . . , .,n.,n _ , . - , - ~ . . , , w . - , , - , . .
F n ; i . g - ' l g [ D .! C. .LILCO Offers No' Credible Authority To-LTo Support Its Attempted Implementation-Of The-Transition Plan In the face of established authority that limits 'the
~
exercise of'theLState's police power to'the State and its ru-thorized~ municipalities,.in the face.of the established doc-trine that.the State cannot delegate.its inherent powers to a private. entity, in the face of the-hornbook rule that corpora-l tions have only those oowers. conferred upon them by the Legis-
.lature, in the face of comprehensive State enactments governing l
the exercise of emergency planning and response powers, and in the face of numerous other specific legislative enactments con-
~
ferring particular aspects of the police power upon the State and local governments, LILCO's Transition Plan offers the slen-derest reed imaginable to support its legal authority to carry out the Transition Plant a single phrase from a sub-paragraph contained in the statement of policy that constitutes the pref-ace to Article 2-D of the Txecutive Law, N.Y. Exec. Law $20 l [ (McKinney). The phrase in question is as follows: It shall be the policy of tne state that:
- e. state and locai plans, organization ar-rangements, and responso capability l required to execute the provisions of this article shall at all times be the most ef- ,
fective that current circumstancec and ex- ! isting resources allow. N.Y. Exec. Law, $20(1)(e) (McKinney). LILCO apparently asserts r ! that LILCO may usurp the State's police power because, in L
7 -. LILCO's view, such' usurpation is necessary to' insure.-that
" state and local-plans".shallebe'the'"most'effactive that. cir-cumstances and existing resources allow.~"48/
.LILCO's position has two basiciproblems. First, the
. language JLn question appears in the statutory _ statement of pol-icy that precedes Article 2-B.- It is well' established that
. statutory preambles and policy sections'do not. constitute oper- i ative sections of a statute and do not confer powers not'other-wise grantod by specific provisions. See Association of American Railroads v. Costle, 562 F.2d 1310 (D.C. Cir. 1977);
U.S. v..One Solid Gold Object, 208 F. Supp. 99 (D. Nev. 1962); Jacobson v. Massachusetts, 197 U.S. 11.(1905); Bissette v. Colonial Mortgage Corp., 477 F.2d 1245 (D.C. Cir. 1973); 1A SANDS, Statutes and Statutory Construction, ((20.03,*20.12 (4th ed. 1972 and 1984 Supp.). That point aside, it is simply be-yond belief that the New York Legislature would have effected a major change in the allocation of governmental powers through a phrase in a statement of' policy that has no counterpart in the o substantive provisions of Article 2-B.49/ 48/ Plan 1.4-1. 49/ Section 20(i)(c) specifically refers to execution of "the provisions of this article." Thus, by its terms, it requires reference to the substantive provisione of Article 2-B to have any meaning; those provisions do not authorize LILCO's intended actions. l l 1
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3:- -Second, LILCO; misreads the statutory'provisioniin-w .< - ~
. L~ (question. As previously' discussed, Article'.2-B confers no au-
. thor'ity upon private corporations and,;indeed;, demonstrates
~
that only'Stateland, local governments can. exercise the police.
. power. Section120,of Article 2-B.StatesLcertain general' state
-policies-including the proposition.that "atate and lo' cal plans, .
organizational' arrangements, an'dfresponse capability" sh'all be as effective as " current circumstances .and -resources permit." Section.:2iO(1)(e) containslno reference'to private corporations. It certainly does not authorize LILCO to do.anything.}0/ More-over, LILCO simply misreads the section the words " plans",
'" organizational arrangements" and " response capability"~are all modified by " state and local," terms which are used throughout Article 2-B to refer to governmental entities'. Thus r in.each case,'" plans," " organizational arrangements" and " response ca-pability"' refer to governmental responses; they do.not consti-tute.some short-hand authorization of private corporations to exercise public functions or to usurp government powers.
50/ Section 20.1.e, on its face, is not substantive and does . not confer particular powers upon local governments or private
. corporations. Moreover, far from conferring powers upon any corporation; it is clear that the statement of policy was in-tended to underscore the primary authority of local governments to deal with local emergency plannir.g efforts. This fact is established by the Memorandum of the State of New York Execu-tive Chamber filed with Senate Bill No. 7265-B, the Senate ver-sion of Article'2-B. This Memorandum, contained within the bill wrapper for Article 2-B, emphasizes the leading role assigned to local governments in emorgency' planning.
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4 T rir.alLILCO's iinplementationfofiitsiTransition = Pian.; ; Article ' w .
;2-Bialloc.ates. emergency planning a'nd disas'er(response ~
t' powersy , b . .' .'
^ '
,j-p (among~atate;.and loc'al governsentalxentiti~es.' Itcconfers no 1 P suchipower 'pon'LILCO.s L LILCO ? s lattempt$ to: fi'nd . such - authority l
~
u N E, in? Article $2-Blis simplyDfrivolous.' hI. THE BOARD SHOULD DECLINE'TO RULE.O'NL
~
THE " LEGAL; AUTHORITY"?ISS'UES- ' Y
+
f . This: Board has invited the' parties'to address.the: ,
~ - iss~ue of what.the Board:should"do if'thereHis no'fdecision? from.
a'New York State' court at the time the Board's Initial Decision-on other. emergency' plani.ing contentions:l's issued. ~The State and County.' submit that the proper. course is clears the. Board must await.the State court'ssruling:on.these issues.51,/~ First, sound 2 principles of: comity compel-this Board to , wait:until a State court. decision on legal authority issues is , rendered. -NRC decisions express a strong ' preference for NRC boards to avoid attempting to decide State law issues, particu-
;1arly where (as in this-instance).there is a competent State tribunal which is addressing the same or closely related-is- z sues. Sec Northern States Power Co. (Tyrone Energy Park, Unit 51/ The County and State will only briefly address this issue Tii the instant discussion since in large part the Board is 'al-ready familiar-with our views. See, e.g., County / State
. September . 24 Brief,' at 13-23.
?
, . . __ _ - . ~ . . . _ , . - . , . _ , , . _ . . . . , , , , _ , _ _ _ - . - . . . - . . _ _ - . , , . _ _ - , _ . . , _ . - _ . , . _ . . . , _ , _ ,
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.1),SALAB-464,57 NRC13 72, f 374 .~ (197' 8 ) ;>~iCleveland Electric
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S aIlluminating'Co. (PerrytNuclear-Power. Plant,. Units 1 and'2), l
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~
; .ALAB-433, 6;NRC 741? 748-(1977); consolidLted: Edison Co, l f(Indian Point /, Unit ' 2 )~, L ALAB-399,151NRC :1156, .11166', - 1169 ~
9 . (1977); @ ,LALAB-453,z7'NRC'31,!37I(I978).
. Further, ceferral of a - de' cision byEthia' Board 11s espe a~
cially appropriate in.this case. Theficgal authority' issues go to'the:very core of the: governmental < authority of the~ State'of New York, thatiis,(the. State's " power" to.. protect the health and safety of persons:within the State's territorial domain..
- The continued . vitality of concurrent state . judicial and federal;
~
administrative systems requires this Board's deference to ongoing State court proceedings, particularly where those state court proceeding was initiated at'the Board's behest. Inter-- ference with the orderly and comprehensive-disposition of the state court litigation should be avoided. i Second, and related to the- foregoin'g, NRC boards have no expertise'in deciding State law issues.52/- Presumably this a 52/ Courts-accord weight to the interpretation'placed upon a statute by an agency' charged with its~ administration. See generally NLRB v. Bell Aerospace Co.i 416 U.S. 267, 274775 (1974). Resolution of the State law legal authority issues do not, however, involve this Board's interpretation of its
-governing statute-nor does the resciution of those issues call upon this Broad's administrative expertise. The legal authori-
, ty issues involve the construction and application of New York State laws; New York State courts have the expertise, compu-tence and jurisdiction to interpret those laws.
78 - t- - E__. _
m . factor was one inatter which prompted this Board in January 1984 to express the view that the "lagal contentions tre properly matters to be disposed of by the New York State courts." Tr. 3675 Th i r ci , as discussed supra, the New York State 3upreme Court on December 1 will have before it all briefs which ae necessary to rule on the State law issues.53/ We, of course , cannot predict when a decision'will be issued, but the Ccurty and State are urging the cott t to issue a decision as soon as possible. In this regard, we reiterate our view (see Coun-ty/ State E-2ptember 24 Brief, at 13-22) that there likely would already have been a State court decision if LILCO had been willing to move expeditiously (in accordance with the views expressed by this Board in late January).51/ Instead, by 53/ The State court has deferred consideration of the preemp-tion issue until a f ter it has decided the State law issues. 54/ In its October 15 Brief, LILCO argues that it has not delayed the State court case and that its removal effort (which delayed the State court proceeding by at least 2-1/2 months) was per fectly proper . LILCO attempts to justify that removal by suggesti-g that it was merely attemI'ing to be efficient by getting the preemption issue related to the State court action be fore Judge Altimari w' o wa s allegedly presiding over "the preemption issue." LILCO October 15 Brief, at 4. This twists the facts. Yes, in the Citizens lawsuit, a preemption issue is penuing. However, that was an entirely dif'erent issue, per-taining to the County's Legislative Resolutions. The Cimizens case did not include any preemption issue pertaining to LILCO's legal <athority to ir.p l emen t its Plan. Further, while Judge Altimari did no* call LILCO's attempted removal frivolous, the fact remains that there was controlling Supreme Court pr edent less than one year old (Franchise Tax Board v. Construction Laborers Vacation T- is t , U.S. , 103 S.Ct. 2841 (1983)) (Footnote cont'd.) ( ~ 52 . x
'. 4 .
.('
r "~ l improperly; removing;the_Statefeourt case,JLILCO delayed: prog-
~
ress-by'at 1 east {several months. Given11ts own role in causing-delay of the State _ court.
. proceeding, LILCO 'should .not now be h 9ard ' to complain about~ po-ltential' delay in. resolution ofithe' legal authority contentions.
Rather, - now - thatLthe - State court .has = finally- got .the issues 'be-fore-it..in a' posture, suitable for decision, this' Board should follow NRC guidance'and await thatsCourt's.decisic7.EE/'Indeed, this Board canido much to expedite the State court proceeding. by-stating clearly that this Board will not address the legal e authority issues but rather will wait for a State. court. ruling "on those matters. (Footnote cont'd.) which made-it abundantly clear that LILCO's attempted removal 1 was improper. The County specifically informed LILCO's counsel of this precedent shortly after filing'the State court suit in an effort to head off any attempted removal'and the inevitable
- ensuing delay. LILCO ignored our efforts.
55/. LILCO has urged that if this Board does await a State court decision, it shoul'd rule that a decision on Contentions 1-10 is not material to an overall emergency planning decision, suggesting also that Interveners have not carried their burden of going forward. See LILCC October 15 Brief, at 7-12. M11s argumeqt 1s absurd. As we have demonstrated supra, the burden clearly is on LILCO to go forward to demonstrate its affirma-tive legal authority to implement the Plan. It has known of this burden since at least mid-1983 but has chosen, for its own reasons, not to seek vindication of its alleged authority in the appropriate ferum - the New York State courts. Any ed-verse consequences that flow fram LILCO's inability to estab-lish_its legal authority result from its own decision not to act.
- W Tr; '
Moreover,nin;the present case, this-Board hasino authority or jurisdiction:to[ decide'these'issuesLof state law. LILCO sought to remove-the' State' declaratory judgment cases to feder-al court.- Its basis forLremoval was its: assertion thatLthe State ' law issues were federal questions ': that were within the jurisdiction of the federal coorts. '1&te U.S. District. Court refuted 'thi s argument;-- that: Court held that the legal authority qu'estions presented-issues of state law that could not be de - cided byt he federal court.- The state law qu stions were be-yond:the jurisdiction and powers of that court to decide. This Board's juridiction to resolve state-law questions does not ex-ceed the ' jurisdiction of the U.S. District Court.,
~
Finally, LILCO has suggested that the State court decision may not actually resolve the contentions and that for this rea-son the Board should proceed to a decision. LILCO October 15 Erief, at 15-16. This is totally wrong and merely underscores LILCO's lack of understanding of the thrust of Contentions 1-10. These contentions concern the police power and the Coun-ty/ State view that settled principles of law prohibit.LILCO - from exercising the police power. The same basic issue is pending in State court. Thus, a State court decision certainly will address the same fundamental arguments which underlie Con-tentions 1-10. Thus, a State court decision will provide an authoritative decision on New York legal principles which this Board should welcome.
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I
-In_ sum,lsince at-least. January 11984,-this Board has urged-
; parties :tcr seek- a State court ~ resolution of the legal authority-
-issues. , We appear (now to .be nearingL such' a decision, f albeit
- a f ter much unfortunate delay. This Board must*now' adhere to'
'its-prior view and;waitLfor"that decision.
VII. lTHE CAPABILITY TO CARRY OUT THE ACTIVITIES ENUMERATED IN CONTENTIONS 1-10 IS NECESSARY PURSUANT TO NRC_- REGULATIONS IN ORDER TO OBTAIN 'Jui OPERATING LICENSE. The Board has requested the parties'- views on 'whether . LILCO must be capable ~of performing the activities which are _ contested in Contentions 1-10 in_ order to obtain an operating _ license. For reasons described below, the. County and State submit that a capability to perform all these actions is clear-ly required under the NRC's regulations. Thus, LILCO's "imma-teriality"' defense must be rejected. The specific actions which are contested in Contentions 10 may be summarized as follows: Contention Action (s) 1 Guiding traffic. 2 Blocking roadways, erecting barriers in roadways, and channeling traffic. 3 Posting traffic signs on roadways. 4 Removing obstructions from public roadways, including towing private vehicles. 5 Activating sirens and directing the broadcasting of emergency broadcast } . 1
\s g system messages.
. 6 l'aking' decisions.and recommendacions to the public concerning protective actions. 7 Making decisions and recommendations to the public concerning: protective actions for .the ingestion expoeure pathway. 8 Making decisions and recommendations to the.public concerning recovery and reentry. 9 Dispensing. fuel frora tank trucks - to automobiles along roadsides.
'10 Performing. asters control'at the'EOC, the-relocation centers, and the EPZ perimeter.-
First, regarding Conteritions 5-8, LILCO has not asserted that its immateriality defense even applies. Indeed, in its August 6 Summary Disposition Motion, LILCO limited its immate-riality defense to Contentions 1-4, 9 and 10. See LILCO August 6 Motion, at 3, 51-53. See also LILCO october 15 Brief, at 2. The apparent reason for LILCO's having so limited its immateri-ality defense is that it is absolutely clear that federal regu-lations require a capability to perform the functions discussed in Contentions 5-8: Concerning siren activation (Contention 5), LILCO has agreed that this is required by 10 CFR Part 50, App. E, IV.D.3, by NUREG-0654, p. 3.3, and by FEMA-43, Standard Guide for the Evaluation and Notification Systems for Nuclear Power Plants, Ex. E.6.2. See LILCO August 6 Motion at 63. Concerning broadcasting emergency messages (Conten-tion 5), 10 CFR $ 50.47(b)(5) specifically requires a _ _,_, _ . _ _ , _ _ _ _ . _ _ _ - - ,a __ - _ - _ . - - _ . .
~
IS? j
+
l l capability "to provide early rotification and clear
~
instruction to the . populace" within the r'ume EPZ. See also NUREG-0654, { II.E, esp. subparts 5 and 6, and Appendix 3. s . Concerning making decisions and recommendations-to the public regarding protective actions in the plume. exposure and. ingestion exposure.EPZs'(Contentions.6 and 7), 10 CFR.{ 50.47(b)(10) and NUREG-0654,l} II.J,
'specifically require that there be a range of protec-tive actions which can be suggested to the public.
Concerning recovery and reentry (Contencion.8), 10 CFR $ 50.47(b)(13) and NUREG-0654, { II.M, specifi-cally require a capability to implement recovery and reentry operations.
- i. Second, LILCO' has asserted its " immateriality" de fense -
~
with respect to contentions 1-4, 9 and 10, urging that even'if j i
-the actions specified'in'these contentions cannot be carried out, the Board should still find the Plan to be ad*quate.
Suffolk County and the State of New York have already largely addressed.this alleged defense. See September 24 County / State Brief at 101-18 and the affidavits referenced therein. This prior discussion, in our view, documents that federal regula-tions do require that LILCO have the capability of performing these functions. However, for the sake of completeness, the County and State reiterate and expand upon certain of these matters below.56/ 56/ The County and State will not reiterate the full scope of tEese prior arguments in this Brief. Rather, to avoid complete duplication, we refer the Board to pages 101-18 of our September 24 Brief. r Contentions 1-4, 9 and 10 concern LILCO's plan during a Shoreham emergency to control traffic and otherwise to assist motorists who may be attempting to evacuate, to remove roadway obstacles, to dispense fuel, and to provide access control at f the EPZ perimeter and other locations. By its immateriality defense, LILCO is essentially asking this Board to license Shoreham with no plan or even capability to perform any of the foregoing traffic- and' access control-related functions, de-spite the unqualified assertions of the existing LILCO Tranci-tion Plan (which has been the focus of litigation for over one year) that those functions will be implemented. Thus, according to LILCO's new argument, contrary to the statements in its own Plan, all that really needs to be done if there is a serious accident at Shoreham is to notify the public of the emergency and then let the people take care of themselves. LILCO's argument also necessarily encompasses the further contention that this Board can find adequate preparedness which cor. forms to 10 CFR $ 50.47 even though there is no capability at all to provide assistance to evacuees during an emergency. Thus, for example, even if serious traffic problems developed during a Shoreham emergency and even if implementation of traf-fic con'.rol measures could reduce evacuees' exposure to health-threatening radiation, LILCO now argues that its Plan is adequate without even the capability of implementing any traffic-related actions that may be necessary to assist I evacueos. The NRC's regulations are not prescriptive about particu-lar traffic control strategies and other actions that may need to be implemented to provide reasonable assurance that adequate protective actions can and will be implemented.57/ This is be-cause it is impossible to predict precisely how a serious acci-dont might progess and thus precisely what protective actions (and supportive actions to implement those protective actions) may be necessary when the emergency occurs. But this does not mean that there need be no capability to assist evacuees in the event of an emergency. For adequate emergency preparedness to exist, there must be a dependable response capability so that protective and supportive actions can and will be implemented as necessary.5g/ 5 7,' We note, however, that NUREG-0654, $ II.J.10.k r3 quires the capability to deal with potential roadway impedirients. Thus, the cctivities covered by Contentions 4 and 9 are ex-pressly covered by the NRC's guidance documents. See further discussion at pages 115-16 of the County / State Septeiber 24
~
Brief. Similarly, NUREG-0654, { II.J.10.j, requires e car:bli-ity to control access to evacuated areas, a matter which is the subject of Contention 10. Since NRC Doards generally follow the guidance of NUREG-0654, Consolidated Edison Co. (Indian Point, Unit 2), LDP-83-68, 18 NRC 811, 944 n.71 (1983), these specific NUREG 0654 guidelines are additional reasons why the Board should find that a capability to perform the activities addressed by Contentions 4, 9, and 10 is required by the NRC's regulations. 58/ See Statement of Material Facts in Dispute, Attachment D to County / State September 24 Brief, 9 4; Roberts Affidavit, At-tachment C to County / State September 24 Brief, SS 13, 15, 16, 18. 4
.LILCO, asks ~this Board to approve LILCO's Plan evenTassum-
. ingithere isf no' eapability at all! for LERO . *.o provide any traf-
~ fic contro1Lassistance during an emergency; no capability at
-all'to remove any roadway obstaclest no. capability at.all to
~
fuel' cars'Which-have run out of; gas and thus. constitute traffic impediments;-no capability at allito control traffic or access into the the EPZ at the-EPZ boundary;.and.no capability.at'all-to provide access control at other locations.59/ To our Knowl-edge,.there is no nuclear. plant in the. United' States Which has an offsite emergency response organization that lacks the capa-bility to take actions to assist in evacuating the public-if
~
there is an emergency. Yet, that is What LILCO is asking the Board to approve. 'If the legal standard for adequate prepared-
- ness under the NRC's regulations is, as LILCO suggests, merely 6
a capability of notifying the public, and then' letting the~ pub-lic take care of itself, then Why require an emergency plan at all? J. LILCO's argument does not represent the appropriate legal
- standard. Rather, Section 50.47(a)(1) cequires reasonable 59/ Suffolk County and the State of New York contest whether.
4 such a response could be deemed adeqttate, thus clearly. ~ ! precluding summary disposition due to the existence of nacerial 1 - facts in dispute. See Statement of Material Facts in Dispute, 3 Attachment B to County / State September 24 Brief, 1 4. If the Board is going to consider the merits of LILCO's argument, s these factual disputes require that an evidentiary hearing be ;
' held. See discussion in Section I, supra.
1
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;assuranceithat.fadequateprotectiveLmeasures "can'and will'be
- taken" -in 'the . event of;al radiological . emergency. . Aniemergency
'may present~a: multitude of possi61'c1 accident scenarios, making,
~
...x -
' rigid'protectivejaction" proposals ~ unsatisfactory.;.It i'sie'ssen-
~
tialf for : adequate" preparedness thatLthere be a flexible' caps-
~
bility to respon'd?to-whatever: events reasonably;may be expected'
, to occu'r,--including-adverse;trafficfconditions, which certainly:
are a reasonably ' foreseeable. occurrence if'~ evacuation is recom-p, mended. See, e.g., NUREG 06541 Appendix'4, at:4-5, 4-6.. This is particularly true When it is remembered-that~an EPZ evacua-tion after a Shoreham' accident'may involve' movement of upwards
-of 150,000 persons-(and'even more When shadow ~ evacuees are-in--
~
i cluded). That is Why it is inconceivable that this Board or the NRC cottid-seriously consider approval of'a plan where'there is no participating entity that has the authority and capabili-ty to implement traffic control measures or the other actions i that are the subjects of Contentions 1-4, 9 and110. l VIII. THE LILCO " REALISM" DEFENSE SHOULD i BE SUMMARILY REJFCTED i Suffolk County and the State of New York submit'that the ' ' i
~
j- Board's invitation for further briefing pertaining to the "re-i i .alism" issue should be withdrawn. The Board.has asked the par-i, ties to speculate Whether an unplanned response to a Shoreham i i emergency by the County or State "would result in chaos, confu- i o , j sion and' disorganization so as to compel a finding that there + 4 88 -
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s istno ' reasonable assurance that adequate? protective l measures !
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1can and will'be taken in the' event of a. radiological emergency' _ b
- at Shoreham. " October 22. Order:at 3-4. .In F our:fview, _ no possi- , .ble benefit could resultifrom.such.specul'atiotiLand,1certainly, ' based on_such speculation / there could be no reliable finding of fact at all, muchiless 'one r that- there is reasonable assur-ance that adequate protective' measures will4 be,taken.
Beyond what theLCounty and State already have stated regarding'the " realism" defense-(County / State September.24 Brief, at 88-101), there is:little more to add. Indeed, in our previous filing, we highlightsd, the ; impossibility of predicting . , how such an alleged " response".would. affect the overall re-sponse to an emergency. Thus,;we. stated [T]his Board.is asked by LILCO to dhcide that, because there will allegedly be some kind of ad hoc County or. State emergency response, there is a basis for making ade-quate protection findings (under 10 C.F.R.
$ 50.47(a)(1)).or adequate compensating measure findings (under 10 C.F.R.f} s 50.47(c)(1)). See LILCO Motion at 47-49'.
This argument is absurd. The record is i barren of evidence regarding what this al- i' -
~
leged County-or stale " response" would bo or how it could possibly be effective. ^' Would County personnel'with no training at ;- all take over LERO functions? 'How could' ' ' - that " response" provide adequate protec a 'i ~
~
tion? Would State police with no training whatever be assumed to~" respond" in any. - meaningful sense of that word? Indeed. s what does " respond" mean as used in LILCO's . Motion? No.one knows. Indeed, LILCO does not even allege what particular acts the governments would perform. Accordingly, ' there is no possible basis'for this Board . < 2 ' s . T s
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- , , ' Ito ? find lthat s such j unspeci ied > " responses"-
icouldJconceivablyjwork.p0__ ,
- a. . s -
R Andihowicanc one'predictLwhother ai" response".'willire'sult:'in-
~
} chaos,ietic.,{when thereRisfno^ evidence o'f:what'that: alleged're ,
fsponsefis; going to entail? j
- The County and State believeLthisf" realism" issue clearly
, has : no imerit? atiall . The-wordL" realism" isaitself a. misnomer l
- here,sfor.the true realism is.that exis'tingiCounty law?does~not~ ,
- permit anyiresponse-and theLStatoiof;New' York'is not about to. 1 permit LILCO to; usurp theEpolice powers. . However, in the ovent-the Board' believes this. issue to.bel worthy of decision on the merits;(i.e., speculation ac to thesnature of.the ? response,"~
the potential.for' chaos, etc.),:an evidentiary hearing is nec -
]
essary since' the speculation called for- b'y the . Board's question is clearly factual in nature.51/ 60/ County / State September 24 Brie.f, at 99. 61/ MNue Roberts Af fidavit, the Palomino l Affidavit. and the Statement of Material Facts in Dispute make clear that the ade-quacy of such an alleged ad hoc response is a matter in dispute which precludes summary-disposition or any' resolution of the
" realism" defense raised by LILCO (other than outright rejec-tion) without'an evidentiary hearing. LILCO's assertion that the State or County'could perform various acts if they so chose further highlights the factual speculation embodied in the LILCO argument. See, e.g., LILCO Statement of Material Facts asuto Which There=is No Dispute, 11 2-4, 6. The County and State dispute that'the State and County could or would do such acts. See Statement'of Material Facts in Dispute, Attachment B to County / State. September 24 Brief, 11 3, 5-7, 9.
Thus, aside from all other-defects, LILCO, as the moving party has plainly failed to show how this. alleged " response" would eliminate all genuine issues of material fact.so as.to permit a Board finding j
'without an evidentiary hearing. See, e.g., Cleveland Electric I (Footnote cont'd.)
I l l l
. . _. _ s.
- e- a g
The County and State do not' urge that the Board convene a
/
4
.'further* evidentiary. hearing.- Rather, thereLare' compelling rea-l sons Why.the' Board should not engage ,in.'the speculation urged
~ ~ '
by LILCO'and should, insteadi immediately reject LILCO's "real- _
. , -ism" - theory.: These~ reasons'are set:out'in' detail in ou'r'.
LSeptember 241Briefc(see pages-88-101), some-points of Which are Laummarized:below. First,f there is no reliable factual basis :for :LILCO's-
-claim thatithe' State and County will participate'in the imple-mentation of LILCO's-Transition Plan.62/ 'Nowhere is it
~
established, on'or off the record, that there will be-a govern-L
^
- , mental response to.an emergency at Shoreham that will.be, in As.this-any sense, meaningful- for purpcaes of this proceeding.
i (Footnote cont'd.)- l l Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 752-54 (1977). I d 62/ In its August 6 Motion, LILCO asserts as an " undisputed ~ fact" (LILCO August 6 Motion at 42) that the State and County will respond to an emergency at Shoreham. LILCO' claims that
"[t]here is no question" as to such response (id,. at 43); it.is L " established on the record" (id. at 44); indeed, " there is as-
! surance that governmental resources -- and legal authority -- L ' would be.made available" (id.). The County and State specifi-i- cally disputed LILCO's assertion. See Statement of Material Facts in Dispute, Attachment B to-County / State September 24 Brief, 11 1, 3. The dispute over LILCO's factual assertions clearly' precludes the grant of summary disposition. See, e.g., Pennsylvania Power & Light Co. (Susquehanna Steam Electric Sta-tion,, Units 1 and 2), LBP-81-8, 13 NRC 335, 337-38 (1981). !
-Again, if this realism defense is not rejected outright, a fur- l ther evidentiary hearing:is required.
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Board well knows,.the State and County have developed no emergency plans for implementation in the event of a Shoreham emergency. Merely.having some undefinable number of unidentified persons " showing up" somewhere during an emergency is obviously not~the kind of " assurance" of adequate offsite . protection that the regulations demand as a prerequisite for granting an operating license for Shoreham. Yet, that is the most that any State or County official allegedly'has offered -- to provide government resources on an unplanned, ad hoc basis, if and when an emergency at Shoreham may occur. Under.the NRC's regulations, such an ad hoc response could never be con-sidered adequate. Moreover, the only " evidence" that LILCO has been able to adduce of any " assurance" that government resources would be available is a single, out-of-context quotation from a December 1983 press release of Governor Cuomo in which the Governor states that "[o]f course, if the plant were to be operated and a misadventure were to occur both the State and County would help to the extent possible . . . . Press releases are not evidence of adequate preparedness and provide no reasonable as-surance that adequate protective measures would be taken.p3/ 63/ LILCO has the burden of proof in this proceeding. Thus, IE is absolutely meaningless for LILCO to assert: "No one stated, for example, that the Governor would refuse to make use of radio stations to advise the public simply because it was LILCO that had made the arrangements." 'LILCO October 15 Brief, at 63. There is no proof at all that the Governor in fact (Footnote cont'd.)
i I Indeed, we find it incredible that LILCO would ask this Board to rely upon'a single sentence from one press release to con-F clude that there is " assurance" that adequate governmental re-sources will be made available if a radiological' emergency oc-
' curs at Shoreham.
Further, there is not even one serstence's worth of "evi-dence" that the. State or County would key into, orihelp LILCO
-implement, its Transition Plan, much less that the. State would sanction LILCO's usurpation of the State's sovereign powers..
On the contrary, Governor Cuomo has made absolutely clear that he has no intention of permitting LILCO to usurp State laws. This fact comes through with unmistakable clarity when-the Gov-ernor's entire press release (not just one sentence therefrom) is read.64/ The Governor's opposition to LILCO's usurpation of (Footnote cont'd.) would use radio stations or take any other action to implement LILCO's plan. Assuming arguendo that this defense even merits . discussion, the burden.was on LILCO to show affirmatively that the Governor would take specific actions. LILCO has plainly failed to sustain its burden of proof. Its extravagent reli-ance on the press release only serves to highlight LILCO's failure to sustain this burden. 64/ A complete copy of the Governor's press release, and the State Court Affidavit of Fabian G. Palomino which places that release in context, are Attachment D to the County / State September 24 Brief. LILCO has ebjected to the County / State submission of the entire press release, suggesting that since the County ob,4 acted to putting the release into the record ear-lier, it may not do so now. See LILCO October 15 Brief, at 60
--61. This is absurd. The County objected to the release dur- )
ing the evidentiary hearing because it was not relevant to the issues being litigated. Significantly, LILCO at that time had (Footnote cont'd.) I I
State laws is also convincingly . demonstrated by the fact that the' Governor has sued LILCO in State court for a ruling that all of'LILCO's actiona by which it attempts to implement the Plan are, and will remain, unlawful. The Governor obviously
- does not derive the same meaning from his press statement that LILCO seeks to foist on this Board.
It is' equally clear that Suffolk County will not adopt or l implement any plan, including.LILCO's Transition Plan, for re- j sponding to a Shoreham emergency. That is not merely at. opin-
~
ion or speculation; that is the law of-the County. County Res-olution'111-1983 unequivocally provides: "[T]he County's radiological emergency planning process is hereby terminated, and no local radiological emergency plan for response to an ac-cident at the Shoreham plant shall be adopted or imple-mented."65/ Indeed, County Executive Cohalan has stated: "The County could not implement a response to a Shoreham accident (Footnote cont'd.) not raised its " realism" d dense. The County could not have anticipated LILCO's novel defense. LILCO has moved for summary disposition and under Section 2.749 the County and State clear-ly are permitted to rebut LILCO's out of centext quotation. Thus, it is entirely proper for the County and State to have submitted the press release and the other data in support of our September 24 Brief. 65/ See Attachment E to County / State September 24 Brief, page
- 6. See elso County Resolution 456-1982, Attachment F to Coun-ty/ State September 24 Brief (No County funds may be used to test-or implement any plan unless it has been approved by the County legislature).
I l: becau'se County law -- particularly Resolution Nos.'262-1982, 456-1982,.and 111-1983'-- prohibits that.55/ 'ntus, the - facts I
- f. are' clear: .Suffolk County law clearly bars any County re~
-sponse. LILCO may'not,like that law, and indeed, has sued the County in an attempt.to have Resolution 111-1983-(and Resolu-tions 262-1982.and 45G-1982 as well) declared unconstitution-al.51/ But LILCO has no basis whatsoever (such as it has asserted in its October 15 Brief at page 59, n.33) to dispute those resolutions for their clear assertion that the County will not --' intend cannot -- respond to a Shcrehan. accident.5E/ ;
In sum, therefore, there is no basis identify, define, or characterize any kind of State or County response to a Shoreham emergency. Thus, LILCO's " realism" defense should be rejected. 66/ See Roberts Affidavit, Attachment C to County / State , September 24 Brief, 13, and the statement of County Executive ' Cohalan attached to that Affidavit. p7/ See Complaint of Intervenor Plaintiff LILCO in Citizens, for an Orderly Enoigy Policy, Inc. v. Suffolk County and Peter F. Cohalan, E.D.N.Y., Docket No. 83-4966. 68/ In its October 15 Brief, LILCO also asserts that "everyone wTth authority would show up" in a Shoreham emergency. (Page 55, emphasis in original). Similarly, LILCO states that Inter-venors cannot deny that they will respond. Id. at 59. The Board cannot accept such wishful thinking by LILCO. The law of Suffolk County makes clear that no Suffolk County resources or personnel may be used to respond to a Shoreham accident. That Suffolk County law has not been altered and, indeed, could only be altered by a new legislative resolution. This Board is in no position to second guess the law of Suffolk County. i
\
contentions and-the import of LILCO's own admieeton.. The-State
.and County do not merely contend,-as LILCO implies,Lthat LILCO's. proposed' actions will violate this' or thet specific State law or: County ordinance ~ (although .they will do -that too) .
See discussion supra. Rather, the-State and County contend --
~
and LILCO necessarily must admit this for purposes of- this de-fense'-- that LILCO cannot' implement its 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, dele-- gated to it. Therefore, it is irrelevant whether duringfan emergency LILCO were to exercise those powers alone or at the same time as others, who are authorized by law-to exercise the-police powers, such as officials of the State of New York or 4 Suffolk County. -As a matter of New York law, LILCO c7nnot ex-ercise the State's police powers in the manner contemplated by
- 'the Transition Plan under any circumstances because it has never been given the power to do so; and, as a private corpora-tion, LILCO cannot be'given that power.
LILCO cites no authority (and we know of none) to support a its claim that' participation by either the State or County in an actual emergency will " cure" LILCO's admitted lack of au-thority.1S/ Indeed, it is a total non sequitur for LILCO to 70/- Again, LILCO has the burden of establishing its realism defense. Its failure to cite authority for its assertion that an unspecified government " response" will cure its legal au-thority problems is additional reason for the Board to reject this defense. 1 l
, - 4r 4 3
fassert that, because the State and County.may-allegedlyielect;
.to exercise police powers thattareSunquestionably'theirs to'ex-
~
. ercise, therefore-LILCO.may:alsofexercise the State's police
~
- '~
ipower, although noJone has,-nor can,-confer that_ power upon-it.. n . lLILCO has. argued._thatithe Governor.himself can (if he.
. chooses) take: action in~an emergency tol legitimize ~LILCO's -
- f. . usurpation of' State law. Thus,1LILCOlasserts that, underyArti-cle~2-B:of the-New.:Yo'rk Executive ~ Law,' the Governo'r; allegedly, ~
~
Lhas the power:to suspend specific-provisions of particularj
-statutes and ordinances andithst""[t]his, cfEcourse, would're-move anyJ1egal' obstacle to LERO's performance of emergency
~
4 functions ~." LILCO; August _6' Motion, at 43-444 note 15.. This' is both wishful thinking er.d fallacious.' . It is wish-ful thinking becauce there is no evidence that Governor Cuomo or any other.New York. Governor will try to invest LILCO with any such temporary authority.ll/ - It is fallacious because the-suspension of particular provisions of particular statutes and ordinances does not even address, much less cure, the overrid-ing defect in LILCO's planned actions -- that LILCO has never been, and never can be, delegated authority, even by the Gover-nor, to exercise the State's police powers. Nothing in Article I 71/ Governor Cuomo's press release and his suit against LILCO in State court make enmistakably clear that the Governor has no--'
' intention of permitting LILCO to usurp police powers.
1 - 98 - 4
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- r' g "2-B'offthe Executive Law, or any other,New York" law,; supports a l contrary result.
In. conclusion, this; Board shouldLaummarily? reject LILCO's
'" realism": defense..<LILCO's license application consists' of the
^
- 7. .
LILCO TransitionJPlan - 'aiplan.to.be1 implemented solely.by-J: - LILCO. - LILCO's~effortLto litigate the adequacy of othernal-:- Ileged' plans .--L plans for State,: County and) federal'- government b - .. . participation-with LERO -- wascexpressly rejected by'thisc
' Board.12/ 1 LILCO's effortito inject a'so-called " realism" argu-ment'into'this litigation at this eleventh hourfis:nothing more than a back door. effort to relitigateLthe-law of the case.
This Board should reject LILCO's argument and reaffirm that-this proceeding will'only' determine whether the emergency plan-submitted by LILCO -- that is, the one_dcvised and. implemented only by LILCO -- can satisfy the NRC's regulations and can law-i ~ U fully be implemented. 1 i 72/ See ASLB Order Limiting Scope of Submissions, June 10, 1983, in which the Board stated: Until such time as LILCO can establish: that one or more of.the governmental entities designated in its' emergency plan consent-to participate in such a ,'~ venture, the Intervenors need not sub-mit contentions dealing with such al-ternatives. Id. at 3. Nothina has changed. .Neither the State nor the , County has agreed to participate in LILCO's " venture."
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.. c ' Respectfully submitted, Martin Bradley;Ashare Suffolk. County Department of' Law
-Veterans. Memorial. Highway.-
H- -
.Hauppauge,'New York. 11788'
- David l- A.~ Brownlee,-' Esq.
[' Michael J.-Lynch,.Esq.
- Kenneth M. Argentieri,'Esq'.
KIRKPATRICKc&.LOCKHART
-1500. Oliver Building Pittsburgh,'PA 15222 Herbe(t H. Brown Lawrence Coe La 'her- '
Karla J. Letsche~ KIRKPATRICK & LOCKHART 1900 M Street, t! . W . , Suite 800' Washington, D.C. 20036 q
~
, Attorneys for Suffolk County-
/ i.
Fabian G. Palomino Special Counsel to the-Governor Executive Chamber, Room 229' Capitol Building Albany, New York 12224 Robert Abrams, Esq. Mary M. Gundrum, Esq. Attorney General of the State of New York Two World Trade Center Room 46-14 New York, NY 10047 Attorneys for MARIO M. CUOMO, Governor of the State of New York t November 19, 1984 s' L t
- 100 - 3 L
_. . _ . , . . - - _ , . , , , , . , . . . . . . . . _ _ _ _ . ~ . - , _ , . . ~ , , . _ _ . - . , . . , _ . - . . . - , . . - , - .
h a: d- -
'0{n.u-QM 46 UNITED'STATESLOF AMERICA NUCLEAR REGULATORY COMMISSION
,84 1DV 21: 21 :14 oBefore the Atomic Safety and! Licensing Board
';FF@ 9: 55cq y .
GGCKETP3&SE?vlu ~
)- cfi ANCH -
In the Matteriof )
)
JLONG-ISLAND LIGHTING COMPANY ) ~ Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham' Nuclear Power Station, ) Unit 1) )
-)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK-COUNTY AND_ STATE OF-NEW YORK RESPONSE TO ASLB MEMORANDUM AND ORDER DATED OCTOBER 22, 1984, dated. November 19,_1984, have been served.on the following on/T* ; hhee 1.dth day of. November 1984 by U.S. mail, first class, except I as otherwise noted. James A. Laurenson, Chairman
- _ Edwin J. Reis, Esq.*
Atomic Safety and Licensing Board Bernard M. Bordenick, Esq. U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Com. Washington, D.C.. 20555 Washington, D.C. 20555 Dr. Jerry R. Kline
- W. Taylor Reveley, III, Esq.#
Administrative Judge Hunton & Williams Atomic Safety and Licensing Board P.O. Box 1535 U.S. Nuclear Regulatory Commission 707 East Main Street Washington, D.C. 20555 Richmond, Virginia 23212 Mr. Frederick J. Shon
- Ms. Donna D. Duer*
Administrative Judge Atomic Safety and Licensing-Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Edward M. Barrett, Esq. General Counsel Mr. Tcy Dunkleberger
'Long Island Lighting Company New York State Energy Office 250 Old Country Road Agency Building 2 Mineola, New York 11501' Empire State Plaza Albany, New. York 12223 E5 - a
R, p _
.t -
' Spence Perry,~.Esq. ,
Stephen B.'Latham,Esq..
' Associate General Cou'nselu Twon.ey, Latham ' & Shea. . Federal. Emergency Management-Agency .P.O. Box 398 Washington, D.C.- 20472 33. West ~Second Street Riverhead,:New York -11901-Mr..BrianLP.. McCaffrey
- Long Island' Lighting, Company Ms. Nora Bredes Shorehaa. Nuclear Power Station. ' Executive Director P.O.' Box'618~ Shoreham/ Opponents Coalition North Country; Road. _
195 Cast Main Street
. Wading River,: New; York 11792, Smithtown, New York. 11787 -Joel Blau, Esq. . .
MHB Technical Associates New. York Public Service Commission 1723 Hamilton Avenue JThe Governor Nelson A. Rockefeller Suite K Building San Jose, California 95125
. Empire State Plaza Albany,.New York 12223 Hon.- Peter.F. Cohalan Suffolk County. Executive Martin Bradley Ashare,.Esq. H. LeeLDennison Building; Suffolk County. Attorney . Veterans Memorial Highway H. Lee Dennison Building ~ Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Fabian Palomino, Esq.#
Special Counsel to the Atomic Safety and Licensing Board Governor Panel Executive Chamber U.S. Nuclear Regulatory Commission Room 229
' Washington, D.C. -20555 State Capitol Albany, New York 12224 Docketing and Service Section Office of the Secretary Atomic Safety and Licensir' U.S. Nuclear Regulatory Commission Appeal Board-1717 H Street, N.W. U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 James B. Dougherty, Esq.
3045 Porter Street, N.W. Jonathan D. Feinberg, Esq. Washington, D.C. 20008 Staff Counsel New York State Public Mr. Stuart Diamond Service Commission Business / Financial 3 Rockefeller Plaza NEW YORK TIMES Albany, New York 12223 229 W. 43rd Street New York, New York 10036
yt h-
' Stewart M. Glass,.Esq.
Regional 1 Counsel
-Federal Emergency Management
' Agency 26 Federal Plaza, Room 1349
. New York,'New York 10278' e
V W ~ Eawrence Coe-Lanph(f KIRKPATRICK.& LOCKHART
.1900 M Street, N.W., Suite 800 Washington, D.C. 20036 DATE: ' November 19, 1984
- By Hand on. 11/20/84
# By Federal Express on-11/19f84 t
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