ML20102C358

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Renewal of Request for NRC Supplementation of Facility Fes Due to Change in Circumstances Since 1977.Certificate of Svc Encl
ML20102C358
Person / Time
Site: Shoreham File:Long Island Lighting Company icon.png
Issue date: 03/04/1985
From: Letsche K, Palomino F
KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:
NRC COMMISSION (OCM)
References
CON-#185-889 OL-4, NUDOCS 8503050554
Download: ML20102C358 (24)
v • d • e


Text

,NS i

t UNITED STATES OF AMERICA . ,.._

NUCLEAR REGULATORY COMMISSION ~~' Q Before the Commission '53 #1i -4 ? d :13 iiAU' 'k -

) . .G. 5, --

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4

) (Low Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

SUFFOLK COUNTY AND STATE OF NEW YORK RENEWAL OF REQUEST FOR NRC SUPPLEMENTATION OF THE SHOREHAM FEIS AS REQUIRED BY NEPA The State of New York and Suffolk County hereby renew their request that the NRC issue a supplement to the 1977 Shoreham Final Environmental Impact Statement ("FEIS"), that analyzes and weighs the costs and benefits of operation of the Shoreham plant only at five percent of rated power or less, assuming the reasonably foreseeable possibility that Shoreham will never be authorized to operate at power levels greater than five percent.1!

We renew this request, despite the Commission's denial of the similar request made in June 1983 (see Long Island Lighting Co., CLI-84-9, 19 NRC 1323 (1984)), because the change in circumstances from those existing in 1977, which necessitated the supplementation in 1983, recently became even more definitive.

1# This matter was raised initially in the Answer and Opposition of Suffolk County to LILCO's Motion for a Low Power Operating License, dated June 27, 1983.

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! l Accordingly, the need for supplementation is even more compelling now. Specifically, on February 20, 1985, the New York State Supreme Court issued a decision holding that LILCO lacks legal

( authority under the Constitution and laws of the State of New York to implement the of'fsite emergency response plan it has l proposed as the basis for its full power license application. A copy of the Court's decision is attached hereto.EI We do not repeat here the reasons the State and County believe that, under the terms of NEPA and case law interpreting it, a supplemental FEIS is required, in light of the unique cir-

, cumstances of this case.1! In light of the New York Supreme Court ruling, and the State and County determination that they will not adopt or implement an offsite emergency plan for Shoreham, there is no basis to deem " speculative" the alternative i

that LILCO will not be issued a full power operating license.

S/ In January 1984, the Laurenson (emergency planning) Licensing Board urged New York State and Suffolk County to obtain a New York State Supreme Court ruling whether LILCO has~1egal authority

-to implement its proposed offsite plan. The February 20, 1985 State Supreme Court decision was issued in the declarato.ry judgment actions which were filed in March 1984 by the State and County in response to the Laurenson Licensing Board's urgings.

1/ Those arguments have been made previously, so we simply refer the Commission's attention to the Answer and Opposition of Suf-folk County to LILCO's Motion for a Low Power License (June 27, 1983), Suffolk County Response to LILCO and NRC Staff Arguments l that the Shoreham Final Environmental Impact Statement Does not Need to be Supplemented (July 29, 1983), Suffolk County Brief in Support of Appeal of Licensing Board Partial Initial Decision l (December 23, 1983), at 124-30, and Petitioners' Memorandum in Support of Emergency Motion for Stay Pending Review of Nuclear Regulatory Commission Order (February 13, 1985) filed with the United States Court of Appeals for the District of Columbia Circuit, at 19-27, 49-60.

L

Accordingly, in light of this recent event which confirms the likelihood that low power operation of Shoreham, if per-mitted, will not be followed by full power operation, NEPA requires supplementation of the Shoreham FEIS to analyze that foreseeable alternative.

Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 f

Herbert H. Brown / L' Lawrence Coe Lanph(r Karla J. Letsche KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County

/ "

s Fablan 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 Dated: March 4, 1985

g., ,

g J'. 1.5 , 1965 buP!1EhtE COURT. SUFFOLK COU TY ' .

l:Anio ti. CUOMO.

Plaintiff, By

- a p,a i o r, t. CF.II. Bit. J.S.C 1.ONG ISI.AND 1.IGll TING C0tiPANY,

. . Unfondant. DATEo February 20. 1985 COUNTY Ol' S UFI'Ol.K ,

Plaintiff,

-ar,uinstS ',

l.o:4G 1 :;1.ANI) I,1GilTI NG COttC'ANY ,

Defendant. ,

TO'.'N OF SOUTilAt1PTON , #

Plaintiff,

-against- '

1.ONG I'SI,AND LIGitTING COMPANY, Defendant.  : -

FAltI AN C. PALOMit!O, ESQ. ATTORMEYS FOR DEFENDANT t;pe t: . Counsel to the Covernor T.ONC ISl.AND LICllTING COMPANY:

of New York St.itte 8x.eeurive Chambers 110$ Al.lND M. C0llDON , ESO.

2 11ori ci Tr.,dc Cent:er 2500 olti countrv Ilonct '

t:cu York , H. Y. 10047 Mineola, N.Y. 11501 and nnel unitERT Alitt AtlS . ESq. IIVNTON & t.'II.l.l AMS . ESOS.

At t.orney General '/07 E. :Inin St.

    • Uorlil Tratic Center Richm.onil, Viry, inia 23219
. w York , ti . Y. 10047 t4y e .l aine s F. , Farn h t;n . Esq. anct

".- II.iry tt. Cuncirum, Esq. Ka thy F. 11. tl.:G1csky , P.r.q .

Of Counsci

,.1T :".!:FYS FOR COUNTY OF SUFFOLR:

"A!:Y1 N l'. . ASil Al(E . ESO.

etv:an< Menceial liighway lit.uppuur,u , N . Y . 11788 l'.v : Arlenc it. Lindscy, Esq.

of Counsel and KII(KPATKICK. LOCKilART, JOHNSON &

lillTCllISON , ESQS , -

1500 Oliver Bldg. -

Pittsburgh,.Ps. 15222 .

I5y : David A. Brownlac, Esq. and .

Kenneth 11. Argentiori, Esq.

  • Of Counsol ATTORNEYS.FOR PLAINTIFF TOWN OF SOUTHAMPTON:

TuGMEY, 1,ATHAM & SilEA, ESQS.

3 3 t.'o s t Second St.

Itt ve rhu nd , N. Y. 11901 Ily : 'itophon B.

Latham, Esq.

Of Counsel . .

s

INTRODUCTION -

The State of New York (STATE), the County of Suffolk (COUNTY) and the Town of Southampton (TOWN), c'ommenced separate declaratory judg-cant actions against the Long Island Lighti"5 Company (LILCO), a public service corporation incorporated pursuant to the laws of the State of New York and* primarily ' engaged in the production, distribution and sale of ciectricity on Long Island. These actions arise from LILCO's attempt

, to secure approval of its " utility" sponsored offsite erorgency response plan for its nuclear plant located at Shoreham. The plaintiffs seek a declaration that LILCO does not have the legal authority to carry out.

its plan. ,

LILco has moved to dismiss this action and the plaintiffs have crose-moved for summary judgment. The Court, in order to address the

! issues contained in these motions, must examine the events leading up to tha commencement of these declaratory judgment actions. ,

THE ATOMIC ENERGY ACT OF 1954 .

, The Congress of the United States, cognizant of the need for n'sw methods of producing energy, passed the Atomic Energy Act of 1954.

This legislation set forth the authority of the Federal government to i negotiate the construction and licensing of nuclear production facilities in the United States (United _St_ates v. City _of New Yor_k, 463 F.Supp. 604) .

Ths Atomic Energy Commission WEC) was designated by the Act to oversee '

. the construction and operation of nuclear power plants. This was to be accompli.shed by a two step licensing procedure. First, the operator of a nuclear plant was required to obtain a construction permit from the AEC in order to build a nuclear facility. Second, the operator after.

, completion of the facilicy, was required to secure a license to operate the plant from the AEC. The AEC, in the latter licensing procedure, was interested mainly in the onsite preparation ~ for an emorgency.

l - The licensing and regulating functions of the AEC woe trans-

. ferred to the National Regulatory Commission (NRC) by the Reorgani:ation l Act of 1974 (U.S.C. 55841 (f) ). .

SHOREHAM .

In 1968 LILCO applied to the AEC for a parmit to construct an 820 magawatt nuclear powered electric Senerating facility on pro arty .

located at Shoreham in the Town of Brookhaven, County of Suffolk State of New York. The application was opposed by a private organizat on known as the Lloyd Harbor Study Group. The latter use permitted to intervene and crosa-examine LILCO's witnesses at hearings before the AEC.

None of the plaintiffs herein were parties to the permit appli-cotion proceedings. However, the late H. Lee Dennison, Suffolk County i Executive at the time, made a limited appearance before the licensin8 i

board in 1970 and spoke in favor of the issuance of a construction permit i -

1

Construction ?ormit Hearings, Transcript 209, 211, 216. 1970). The permit to construct a nuclear facility at Shoreham was issued by the AEC in 1973). i The approval of the Shoreham construction permit was the catalyst for the issuance of an order by the Suffolk County Executive to chu appropriate COUNTY department to develop a " Response Plan for Major ltadiation Incidents". In 1975, representatives from LILCO and the COUNTY held a series of meetings in order to define the emergency planning role for each of them in the event of a major radiological accident at Shoreham.

These conferences culminated in the development of a plan known as "Suffolk County's General Radiation Emergency Plan". The latter was approved by the Suffolk County Executive on August 30, 1978.

THREE MILE ISLAND The accident at the Three Mile Island Nuclear facility (TMI) ot Herrisburg, Pennsylvania in March 1979, demonstrated the need for im-proving the planning for radiological emergencies. The NRC, prior to the TMI accident did not condition isevance of an operating license.for a nuclear plant upon the existence of an adequate offsite emergency plan.

The TMI accident focused attention on the fact that nuclear accidents may andangor surrounding communities and require the mass evacuation of puople in those communities.

Congress, f n response to the events uhich occurred at THI, dotormincd that no nuclear plant should be licensed to operate unless an adequaco emergency plan could be draun up and implemented for the area surrounding the nuclear facility and passed the NRC Authorication Act of 1980.

The NRC, in implementing the policy expressed by Congrees, promulgated a number of regulations which included the mandatory submis-sion of an adequate radiological emergency response plan (RERP) by an applicant desirous of operating a nuclear power plant. The RERP must des cribe in detail how nuclear emergencies will be handled within a ten milo radius plume exposure pathway emergency. alanning cone (EPZ and also within a fif ty mile radius food inges' tion pathway (45 Fed, Reg. 53, 402 August 19, 1980 and 10 C.F;R. $50.33(g) 1984). An o?erating license is issued only if the NRC finds that there is a reasonable assurance that adequate protective measures can be taken to protect the area surrounding the nuclear facility in the event of a radiological emergency ( 10 C.F.R.

$50.47(s)(1)1984).

FROM PROTAGONIST TO ANTAGONIST A careful atody of the NRC regulations indicates that the emergency plans such as RERP, which were to be submitted by licensing applicants,would probably have some imput by those governmental units having jurisdiction over the area to be evacuatud in the event of a nuclear emergency. The " Memorandum of Understanding" 81 ped by County Exocutive John V. N. Klein and LILCO on December 28, 1979 and the approval

of the terms of said agreement by the County Exocutive Elect, Potor F.

Cohalan, givos credence to this analysis of the NRC regulations (see letter from John V N. Klein to Ira Fro 111chor, Vice Pro 81 dent of L1LCO, dated December 31, 1979). .

A numbur of discussions took placo bbtween LILCO and COUNTY representatives between 1980 and 1981 for the purpose of determining the best means of developing an acceptable RERP. These discussions led to the signing of a contract between LILCO and the COUNTY on March 15, 1981. The COUNTX ogreed to develop an emergency plan and LILCO in turn consonted to paying the projected S245,000.00 cost of preparing the plan. Thw County Legislature, in September 1981, approved the terms of the agreement and 1,ILCO advanced $150,00000 as the first installment on the pnyment of

$ 7.4 5 , 000 . 00. The latter was to be paid in full on March 18, 1982, the schuduled completion dat'o of the PLAN.

On February 19, 1982, the COUNTY advised LILCO that the $150,000.0(

advancement would be roturned because of the "a,paront conflict of interest" in the acceptance of any funds from LILCO for the purpose of preparing an emergency plan (see lettor dated February 19, 1982 from T.ee E. Koppolman, Director of Planning for Suffolk County to LILCO). On March 23, 1982 the Suffolk County Legislature passed a resolution authorizing the Suffolk County Planning Department to prepare a new emergency plan which use to be submitted to the Legislature for its consideration (Resolution 262-1982).

On February 19, 1982, the COUNTY advised LILCO that the S150,000.0C adva'ncoment would be returned because of the " apparent conflict of interest" in .the acceptanco of any funds from LILCO for the purpose of preparing an umurgency plan (see letter dated Fobruary 19, 1982 from Lee E. Koppelman, Director of Plsnning for Suffolk County,toLILCO). On March 23, 1982 t,he Soffolk County Legislature passed a resolution authorizing the Suffolk County Planning Dopartment to prepare a new emergency plan which was to be submitted to the T,egislature for its consideration (Resolution 262-1982)

Tho Planning Depar tment , in accordance with the T.egislative directivw, submitted a RERP in December 1982. A number of public hearings l wore hold by the Legislature to co6 sider the PLAN in January, 1983. The I

1.egislature, with the concurrence of the County Executive, Peter F. Cohalan, l decidad not to approve, adopt or implement any RERP for Shoreham. The reason given for this action was that ...

"!Since) no local radiological emorgency response plan for a serious nuclear accident at Shoreham.will protect the ,

( health, welfare, and safety of Suffolk County residents, the County's radiological emergency planning process l

is heroby terminated, and no local radiological emergency plan for response to an accident at the Shoreham plant shall be adopted or implemented . . .

l , . . [Slince no radiological amargency plan can protect I the health, welfare, and safety of Suffolk County resi-dents and, since no radiological emergency plan shall be adopted or implemented by Suffolk County, the County Executive is hereby directed to assure that actions taken 3

l t

by any other governmental agenc" be it State or Federal, are consistent with the decisich mandated by this Reso- ,

lution." ,

(Resolution 111-1983). .

The Governor of New York,- after reviewing the results of a study by the Marburger Commission, an independent cocmittes appointed by the Governor to study the Shoreham situation, announced that no RERP for Shoreham would be adopted or implemented by the STATE.

THE LILCO TRANSITION PLAN .

LILCO, interpreting the COUNTY's refusal to adopt a plan as a derogation of its responisbility under Article 2BThe of the New PLAN hasYork beenExecQ-desig-tive Law, submitted its own plan to the NRC.

nsted "The L11co Transition Plan". (PLAN)

The PLAN describes in detail the actions which LILCO preposes to take in the event of a radiological emergency at the Shoreham facility.

Thy ptAN is contained in four volumes. One volume is entitled "Shoreham Nuclear Power Station - Local Offsite Radiological Emergency Response Plan". Tuo volumes are entitled "offsite Radiological Emergency Response Plan". The fourth volume is designated as " Appendix A - Evacuation Plan".

liighlights of the PLAN which would be utilized in the event of -

a radiological accident may be outlined as follows:

1, The organization which is primarily responsible for imple-menting the PLAN is known as the Local Emergency Response Organitation (LERO). This group is ccmposed of over 1,300 LILCO employees and con-sultants.

2. The Director of LERO, a LILCO employee, would have the primary responsibility for the coordination and implementation of the PLAN. He would make certain that the following mentioned functions would be carried out in.the event of a nuclear accident at Shorehem.
3. Assessment of the severity of the nuclear accident.
4. Determination of the action to be taken in order to protect the public.
5. The declaratiQn of an emergency.
6. Notification of the public by the following methods:

a) The activation of 89 fixed sirens.

b) The transmittal of messages on an Emergency Broadcast System (EBS). . .

c) The transmittal of signals on tone alert radios.

. 7. The instruction of the public by means of EBS messages *as to protective measures to be taken, including selective and general evacuation of the EPZ.

8. Implementation of traffic control measures in order to evacuate the.public along specified routes'. These measures include the following:

a) The conversion of a two mile sterch of a two-way road into a one-way road, b) The placement of roadblocks to cordon off the immediate plant area, c) The placement of 193 traffic guides at 147 traffic control points throughout the EPZ. These traffic guidee, by the utilization of cones and hand signals, will channel traffic along the designated evacuation routes and discourage traffic from pro-

, ceeding along different routes, d) The placement of LILCO vehicles, cones and flares in the traffic lanes before certain entrance ramps on four evacuation routes to cause traffic to move into adjoining lanes in order to permit the continuous flou of traffic onto the routes from such ramps, s) The authorization of the use of road shoulders and the creation of lanes for turnpockets.

9. The erection of permanent trailblazor signs along all eva cun ti on routen.
10. The removal of stalled cars and other obstacles from the roaduay by tou trucks.
11. The formulation of protective action recommendations which are to ho broadcast to the public present in the ingestion exposure path-way. These recommendations may include the follouing:

a) The placement of' dairy animals on stored feed.

b) The removal of dairy animals from contaminated fields to shelters.

c) The withholding of foodstuffs and milk from the market.

d) The change from the production of fluid milk to the, production of dry whole milk.

e) The washing or scrubbing of fruits and vegetables prion to consumption.

f) The suspension of fishing operations.

12. The making of decisions and recommendations with reference to recovery and re-entry to the EPZ after a nuclear accident.

i

$ Tile CATALYST FOR THE INSTANT PROCEEDING The Atomic Safety and Licensing Board (ASLB), an administrative panel of the NRC, has been and still is in the pr6 cess of conducting hear-ings to determine if the plan complies with NRC standards and is capable of being implemented. ,

LILCO has represented to the NRC that it may laufully implement

-its PLAN and that neither State por Federal law prevent LILCO from perform-ing the functions described therein. The STATE, COUNTY and T0 tin have

, advised the NRC that LILCO lacks the legal authority to carry out its plan.

Those governmental bodies have filed ten " legal contentions" with the ASLB setting forth their positions on the lack of legal authority by LILCO to implement its PLAN.

l The Federal Emergency Management Agency (FEMA), the Federal body charged with the initial reviews of RERPS, has advised the ASLB that it cannot determine whether the LILCO PLAN can be implemented until the legal authority issue has been resolved (see Letter of Richard W. Kreiner,

. Assistant Associate Director, Division of Emorgency Preparedness and ,

! Eng,incering Response, NRC).

The Chairman of the ASLB, after listening to all sides and considering FEMA's views, determined that tho ten legal contentions filed

, by the plaintiffs herein present issues of New York State Law and he urged the parties to get a resolution in the State Courts (Transcript ASLB January 27, 1984 p. 3675). .

On March 7, 1984, separate actions seeking a declaration that LILCO did not have legal authority to execute its PLAN was co =enced by the STATE and COUNTY in the New York State Supreme Courts. The COUNTY's complaint alleges that LILCO's implementation of its PLAN would be unlaw-ful, illegal and a usurpation of the police pouprs of the STATE. The COUNTY specifically mentioned that the execution of the PLAN uculd violate the Nuw York State constitution, the Municipal Home Rule Law and the Exocutive Law. The STATE similarly alleged that LILCO is precluded from oxurcising the functions mentioned in the PLAN. In addition, the STATE

, cited that the implementation of the PLAN would be violative of the Transportation Corporatione Law, the Business Corporations Lau, the Vehicle and Traffic Law, the Public' Health Law, the Agricultural and Markets Law ,

and the Penal Code.

LILCOdidnotserveananswerbutinmediatelymovedtodisEiss the actions on the Rrounds that the Court did not have subject matter jurisdiction and the complaints fail to state a cause of action.

LILCO, before any action ~could be taken uith reference to its motion, removed the declaratory judgment actions to the Federal District Court in April 1983. It claimed that the challenge to its legal authority presented a question of federal law that was within the original juris-dinnion of the federal courts. The STATE and COUNTY filed motions for a romand of their actions back to the New York State Supreme Court. The Fedural Diatrict Court ruled that LILCO's federal law claims and its invoca-

-6,

. tion of the federal preemption argument constituted affirmative defenses that could be raised in a state court proceeding (Cuomo v. Lilco County of Suffolk v. Lileo; Nos. CV-84 1218, CV-84-1405, ED N.Y., June 15, 1954).

On August 14, 1984, the STATE and COUNTY actione uere consolidated in this Court with a similar. action for declaratory judgment commenced by the TOWN in.May 1984.

LILCO renewed its motion to dismiss the complaints on the grounds that this Court does not have subject matter jurisdiction because no justiciable controversy is present and the complaints fail to state a cause of action.

. JUSTICIABLE CONTROVERSY?

LILCO maintains that no real dispute exists concerning its legal authority to act in the event of an emergency because the plaintiffs' complaints.are based upon a " hypothetical scenario" that will never occur.

That " hypothetical scenario", according to LILCO is that the utility alone will respond to a radiological emergency at Shoreham. LILCO boldly pro-

, claims that "in fact New York and Suffolk County would respond in the event of an actual emergency at Shoreham" and thus the " hypothetical scenario" in the complaint that "Lilco alone would perform the contested activities" is moot.

LILCO'a characterization of the complainte as being based on a hypothetical scenario is without any basis in fact and can only be attri-buted to "uishful thinking". One does not have to be a genius to ascer -

tain that the issuw presented by these actione in the legal authority of LIT.C0 to execute the PLAN and not uhether the STATE or COUNTY will or will not respond to a radiological emergency at Shoreham. ,

What constitutes a justiciable controversy 7 The necuesary elements of a justiciable controvery.are a legally protected interest and a present dispute (Davis Construction Corp. v. County of Suffolk, 312 Misc.2d 652, 447 N.Y,S.2d 355, inff'd. 95 A.D.2d 819, 464 N.Y.S.2d 519: Board of Co-Operative Educational Services,Nassau County v.

G o l_d_i n , 38 A.D.2d 267, 328 N.Y.S] d 955. These e Ments are present in l She instant matter. The plaintiffs have an interest in insuring that l

their governmental powere ore not usurped by a private corporation. LILCO claims that it has a right to exercise the functions mentioned in the PLAN. How can anyone say that a bona fide controversy does not exist?

The Court is of the opinion that the declaratory judgment action is the bout vehicle to solve the controversy herein as attested to by th'e following language of the Court of Appeals in the case of New York Public Snterunt Research Grouq,__Inc._ v. Carey, 42 N.Y 2d 527, 399 N'.Y.S.2d 621 '

at page 623:

". . .The need for judicial intervention is obvious when, because of the actions of one of the parties, a dispute arises as to whether there has been a breach of duty or violation of the law. Then the courts can declara the rights and obligations of the parties, and if a breach l 1s found, compel compliance, award damages or otherwise l

order appropriate action to be taken.

= _ _ _ - - - __

-- y - . - -- - ._. . . _ . . _ _ _ . ___ .__

That is the traditional, but not the only way in which a gonuine' legal dispute may arise or be resolved by the courts. For instance, when a party contemplates taking certain action a Eenuine disputd nay arise before

. any breach or violation has occurred and before there is any need or right to resort'to coercive measures. In such a case all that may.be required to insure complian ce with the law is for the courts to declare the rights and obligations of the parties so that they may act accord-ingly. That is the thcory of the declaratory judgment actions authorited by CPLR 3001 (Jatri v. Aldertnn Dock Yneda, 256 N.Y. 298, 176 N.E. 401 siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y. , Beck 7B, CPLR

. 3001, p7 355 357: 3 Weinstein Korn Hiller. N.Y. Civ.Prac.,

par. 3001.02: Borchard Declaratory Judgments, 9 Brooklyn L Rev., pp.1 3).

The controversy concerning LILCO'a legal authority to implement its PLAN is real and present. Resolution of the dispute will determine what the police powers of the STATE entail and if those powers hava been usurpcd by LILCO s PLAN. The determination of LILCO's authority to imple-mont the PLAN will have a significant bearing on its application for an operating license at Shoreham. The interests of the parties are clearly at stake in this proceeding. The Court can not envision a better example of a justiciable controversy which is ripa for a judicial determination in a declaratory judgment action.

TllE ISSUE LILCO, as previously mentioned, moved to dismiss tha complaints pursunnt to Section 3211(a)(7) of the CPLR on the ground that the com-plaints fail to state a cause of action. L1LC0 contends that (1) "t'ew York lau does not prohibit it from parforming the activities mentioned in tha complaints: and (2) if state laws "were construed as plaintiffs allege, they would be preempted under the Supremacy Clause of the United States Conatitution and by federal statues and regulations."

l - The Court, at the behest of the parties, issued an order dated i October 4, 1984 which limited the issue to be decided to that of L1Lco's legal authority to implement its PLAN under the laws of the State of tiew l York. The parties have submitted the pleadings, trans cripts of their oral arguments before the Court, affidavits, the PLAN, voluminous briefs and documents and there is no need to hold a hearing as none of the material facta are in dispute.

A* synopsis of the posture of the case to be. decided by the Court and the issue involved is described'as follows:

LILCO, in order to obtain a license to operate its Shoreham facility, must submit a plan for responding to a radiological accident which the !TRC finds is adequate and capable of being implemented. LILCO hcs submitted a PLAN to deal with a radiological emergency at Shoreham.

The plaintiffs have challenged LILCO's legal capabilities to perform the l

l

~6-l

' functions contained in the PLAN and maintain that the PLAN amounts to a usurpation of the STATE's police powers. The proposed functions are undisputed and set forth at great length in LILCO's four volume PLAN. The legality of LILCO's performance of these functions under the laws of the state of New York is before this Court for.a resolution.

THE POSITIONA ,

L1LCO's basic premise for its vieu that it has a right to implemine the PLAN under the Irwa of the State of New York is found in tho following statement contained in the PLAN at P 1.4-1.8: .

"(N)othing in New York State law prevents tha utility from performing the necessary functione to protect the public. To the contrary, Article 2-B of New York State Executive Lau, Sec. 20.1.e. makes it the policy of the State that State and local plans, organization arrangements, and responso capability "be the most effective that current circumstanes and existing resources allow." "

This argument has been succintly advanced by counsel for LILCO in his statements before this Court on January 15, 1985 and transcribed at pages 26 and 27 of the minutes in the following concies mannor:

"Under the LILCO vieu, as a private citizen or as a corporate citizen, any action that I uant to take of any type that is .

not prohibited by law, or that does not threaten the health of one of my fellou citizene, unless that action is espressly prohibited by State law, that I've got a right to do it.

That's part of my ri Ehts as a citizen of this country, and -

if I were a citizen of Neu York, it's part of my rights under tho New York constitution."

LILCO, in addition to this argunent, also maintains that its activities under the PLAN do not amount to an exercise of police power.

It buses its contention on two grounds. First, the PLAM "does not propose to, and will not, use force or the threat of force to compol obedience to anyone or anything " 3econd, the essence of the STATE's police power is " regulation" and the ability "to incarcerate persons who engage in pro-hibited activity" and LILCO is simply " planning for and responding to a radiological emergency" and "not regulating an emergency response."

The plaintiffs' argument is rather simple. They maintain that

  • the activities uhich are to be performed by LILCO employees as delineated in the PLAN are governmental functions and amount to a unurpation of the STATE's police power and thus is prohibited under New York state Law.

1

. 9

{

-m

THE STATE'S POLICE POWER ,

A resolution of the controversy horein necessarily involves a discunnion of the source, nature and exercise of the police power of the

. STATE.

(a) THE SOURCE In our system of govern =ent, the police power is an inherent attribute and perogative of state sovereignty (Teeval Co. v. Stern, 301 N.Y. 346. Cert. den. 340 U.S. 876). The Tenth Amendement to the Constitution of the United States specifically provides that the exercise of tha police power for the general welfare of the public is a right roserved to the States (Brown v. Brannon, 399 F. Supp, 133, aff'd, 535 F 2d 1249). This princiale has oesn affirmed by our Courts even before the turn of the 1900's (See Runn v. People of Illinois, 94 U.S. 113).

(b) THE NATURE One cannot deny that the police power is the STATE's most essen-tial power (People v. Bibbia, 262 N.Y. 259, aff'd, 291 U.S. 502) . Nor enn one dis 1ute that the protection and esfety of persons and property is unquestions'aly at the core of the STATE's police power (Kelly v. Johnson, 425 U.S. 238). Our courts have continually and consistently ruled that the protection of the public health and safety is one of the acknowledged pur-ponos of the police power of the STATE (Adler v. Deegan, 251 N.Y. 467:

Yonkers Community Development Agency v. Korris, 37 N.Y~ 2d 478, 373 N.Y.S.2d.

~

112).

(c)_ THE EXERCISE Who may exorcise these police pcuers? Does a governmental sub-division such as a county or town have an inherent right to exercise these powers? Does a corporate entity such as L1LCO have an inherent right to exercise these police powers?

The acceptance of the cardinal rule, that the police power is an inherent parogative of the STATE, can only lead to the conclusion that this pcwer can only bo oxorcised by the STATE or by governmental oubdivisione upon whom the State censtitution or State laws confar such power. In fact, municipal corporations, who are creatures of state lau and whose sole purposu is to perform governmental functions, have no inherent authority to exercise police powers. These municipal corporations may only exercise the police power which the State Constitution or the State Legis1sture con-fers upon them (Rocheste_r_.v. Public Service C_ommission, 192 HIsc. 33, 83 N.Y S.2d 436, aff'd. 17 A.D. 172 89 N.Y.S.2d 545, aff'd.301 N.Y. 801:

Peo le ex rel Elkind v. Rosenblum, *184 Hisc. 916, 54 N.Y.S.2d aff'd, o 1.1. 859, 5e N.Y.S.23 5Z5).

POLICE POWER = POLICE POWER A brief study of the PLAN, as outlined by this Court, indicates the basic activities LILCO intends to perform in the event of a radiolacical accident at Shoreham.

- 10 -

It intends to declare an emergency and advise citizens of'the steps they should rako to protect themselves. LILCO intends to manage a major, full-scalo evacuation of a 160 square mile araa. It intende to close public highways, ro-route traffic and direct the flow of traffic.

The utility intends to dweide upon and overseo steps to secure public health within a fifty mile radius of the nuclear facility. LILCO intends to overseo evacuation centers for more than 100,000 people. It intends to decide when and in what fashion citizens may return to their homes in previously contaminated arcas.

I,ILCO maintains. chat theso actions do not involvc governmental functions and that its proposed "hanagement" of the evacuation of the residenta nf Suffolk County would not involve nn exercise of the STATR's poliew'pnwer. What is the basis of 1.11.CO's assertion?

Two rwawons are advanced by LILCO for its stance. First, LILCO does nne proponw to use force or the threat of force to compel obedience to its recommendations. Second, the esscoce of the STATF.'s police power is regulation and the ability to incarcerate' persona who engage in pro-hibited activity. LILCO is merely planning for and responding to a radio-logical emergency in carrying out the functions in the PLAN and not regu-lating an cmorgency response.

The position taken by LILCO is untenable. The fact that LILCO will not issue traffic tickets or arrest someone is of little significance.

The exorcise of governmental functions does not necessarily require the ..

imposition of penalties as indicated by the following langu8Ee in the caso or neandun Shores. Inc. v. Incorporated villane of Greenwood Laho, 68 flisc.2d J43, 325TY.S.2il 957 at page 960: "

"The term " police pouer" hee often been definco es that power vestod in the Legislature to make. ordain and ostablish all manner of wholesome and reasonable lawn.

statutes and ordinances. With penaltics or without, not repugnant to the Constitution, as they shall jud be for the good and welfare of the commonwealth,ge andtoof subjects of the same, tihatever affects the peace, good order, morals and haalth of the' community comen uichin its scopo." -

Furthermore, the bold statement that the PLIN is devoid of any coercion is incorruct, Does turning a two-udy street into a one way street leave motorists free to drive 'as and where they wish? Likewise, does .

parking LILCO vehicles in traffic lanes on the Long Island Expressway in critical locations afford motorists a freedom of choice? Is a notorist thus compelled to travel in accordance with the route set out in tho PLAN 7 Doon LILCO REALLY believe that its dociaration of an omargency and evacuation on the emergency broadcast channel is any icos corpulsive because the directive will not be enforced by a thrent of incarecration?

LILCO's regulation theory is likeuiso without merit. It claims that its own actions do not " regulate crorgency responsas" but rather consist of " planning" for and "reepending" to a radiological cmergency.

1.11.t:0 In " planning" for a vastiol.ortien1 cmornoney won 11 In e r r.... ti t. ,

ptrforminr; functions that are governmental in nature. In "rcepon,tingg" to a radiological cmargency, the utility would undertake to perform acti-vitics that are roscrved to the STATE and its politient avbdivisione.

In fact, the Courts of the State have recor,nized that the func-tions LILCO intends to perform fall within the STATE': historic police power. Scu, eg. Yonkers Community Development Agency v. Morris, 37 N.Y.2d 478, 373 N.Y.S.2d 112. (1973), app. dismissed. 42 J tf 5. 10TO-~tT075 )

(matters' concerning the public health, satoty and wcifero are within the State's police poucr): Royce v. Rosasco, 159 tiisc. 236, 287 N.Y.S. 692 (1936) (abatement of public omorgenctos is within State's police powcr).

People v. _Bielmeyct, 54 Misc.2d 466, 468-69, 282 N.Y.S.2d 797 (1967)

("It has long been recognised that the power to regulate and control the use of public ronds and highways is primarily the exclusive protonative of the sentes."): Tornado Industries , Inc. v. Totm . Board of Oyster Bay, 187 N.Y.S.2d 794 Cif59 )~ (control of craf'fic is a matter within the polico powcr): City of _Utica v. Water Pollution Control nonrd, 6 App.Div.2(

340, 177 N.Y.S.2d 47 (1955), aff'd., 5 N.Y. 2d 164, 152 N.Y.s.2d 554 (1959)

(control of water pollution is within the public power): Soc generally, N.Y. Const. Art. I, sec. 6. notes 681-909 OfcKinncy)) . .

No omounc of semantics can chango the truo meaninn of the activitios which LILCO proposes to perform in the event of n vndiningical accitlent at Shorcham. No amount of ink con cover up or blot out f:he fact rhnt i.IT.CO's " intended functions" are inbovently r,overnmental in nature anti fall c1carly within the ambit of the STATM's police power.

Tile DELEGATION OF POLICis POWLit(S Ilona 1.11.C0 have any stat.utory authority to i xcrei a thu functione ecunninctl in the PLAN 7 llow arc the STATE's police power . <lele;weeil? itave

.w/ of these poucrs been delegateti to 1,ILCO'I (a) TO LOCAL COVERKHENTS l

The COUNTY, TOWN and other local governmental subdivisions have been dologated nonrly the full monsuro of the STATE's polico power by the State Constitution and various Articic 9, Stato Atatutos" Section (llectzer 2 of clio v. Countv tT6T York .4tate of Reie, 497 Supp. 1207).

Culiiititution is the primary source for the nuthority of local governments en oxorciso the police power. Soccion 10.la(12) of the Municipal linma Rulu 1,nw ex?rcssly delegates police power to governmenent units by. con-ferring nut %ority upon them to " provide for the well-being of persons ny property thoroin." Thus, thono constitutional and statutory provisinns in of themselves, authorize the COUNTY and TOWN to exercuo the STATI;'s police power.

(b) TO PRIVATC COP.PORATIONS .

The Court h'as been unable to find any orovisions in the State ConAtitution or State statutes uhich authorine LILCO or any other privar.a corporation to exercise any portion of the STATC's polico power.

In fact, nny attempted dologation of polico power to L1LC0 would mucunt

- 12 -

to an unlawful delegation of govsrnmental powars (Son 2_0 N.Y. Jur. 2d,

'"Constitutionni Law"'$183). A governmental unit can not bargain away its police power to a private party or organization (Beacon Syracuse Associates v. City of Syracuse, 560 F. Supp.188). Covernmental functione and responsibilities cannot 6e surrendered by contract where police power, public safety and welf are are involved (Patrolmen's Bonevolent Ass'n.

v. Cicy of Neb York. 59 Mise.2d 556, 299 N.Y.s;2d 966) .

CORPORATE POWER.9 LILCO is nothing more than a creature of the STATE. Corporations, unliko natural persons, possess only those powere that have been conferred upon thom by the s, tate of their incorporation (14 N.Y. Jur. 2d "3usinese Rolationships, 6340). Corporate powers do not exist merely because they are not expressly prohibited. A valid basis must be demonstrated for the oxistence of a claimed contested pouer under the laws of the state under which the corporation has been created. (See 6 Fletche_r_,__ Cyclopedia of Corp _o ra tio_n s 52476_- 2_486, Rev. P_e_rm. ed. 1979).

The expri.as powers which LILCO possesses are set forth in Section 11 of the New York State Transportation Corporations Law and Sec-tion 202 of the New York State Businese Corporation Law. What express powers does LILCO have as a direct result of these statutes?

Section 11 of the Transportation Corporation Law grants elec;ric corporations and gas and olectric corporations the power to gwnerate, ac-quire and supply electricity for heat or power to light public streets, places and buildings. In addition, such corporations are empowored to acquire and dispose of necessary machines and to transmit and distribute electrielty through suitable wires and other conductors. Such corpora-tions can use streets, public parks and public places to place their pcios, pipes and fixtures, but only with the ccnsent of the runicipal authori-tiou. Those corporneions also have power to acquire real estate for corporate purposes, but only in the manner prescribed by the emincnt domain procedure law. Thus, even in areas necessary to the conduct of their businessos, utilities can act only under express legislative grants of pouer and with the consent of municipalities.

Section 202 of the Businens Corporation LAu eets forth sixteen general powers which are common to all corporations incorporated pursuant to the laun of the State of New York. For example, the power to sue and be sued, to hold property and to make contracts. .

Thus nonc of these express powers bestow upon LILCO the authorisy to implement its PLAN. Nevertheless, LILCO is undaunted by its inability to point to a specific grant of power in either the Transportation Corpora-tions Law or the Business Corporation Law which would' lend credence to its claimed authority to implement the PLAN. Instead, LILCO seeks to rely on

" implied powers" which oxisted at common law and is now codified in Swe.

. tion 202 (a)(16) of the Business Corporation Law. The latter providee

. that a entporation has "all powers necessary or convenient to effect its corporate purposes." LILCO states that one of its corporate purposes is to create and cell electricity and thus it has the power to build or oper-are a peuer plant such ae Shoreham. The oporation of Shoreham, according to

. LILCO, is conditioned upon tho existence of an bdequate offsite emergency plun. Thus LILCO reasons that it has the implied power to implement the PLAN in furthorance of its corporate powers.

)

LILCO's view of the scope of implied corporate pouer has no Furthermore. it has no support in the casos which LILCO hns put i limit.

forth as supporting its theories. For example, it citse the following

, four cases which held:

1. That a corporation has icplied power to make charitable contributions for the benefit of the corporation and its employees (Steinway v. Steinway & Sons, 17 Misc. 43, 40 N.Y.S. 718).

1

~

. 2 Thar a corporation operating a home for persons 60 years or older has the implied power to admit a 59 year old (In Re He_im_s Estate,

166 Misc. 931, 3 N.Y.S.2d 134, aff'd. 255 A.D. 1007, 5 N.Y.5.2d 574). ,
3. That a construction company may also perform related professional engineering services (John B. Waldbillinn, Inc. v. Gottfried, i

22 A.D.2d 997. 254 N.Y S.2d 924, aff' d.16 N.Y.2d 773. 262 N.Y.S.2d 498) .

4 That a corporation may make payments under a "non-compete agreemen t , provided such payments do not constitute a prohibited restraint of trado (Leslie v. Lorillard,110 N.Y. 519).

This' Court can not fathom how L1LCO expects to support its claim of authority to declare an emergency and assume responsibility for the .

< ovacuation of over 10,000 people on the basis of these cited cases.

Likewise, the Court is at a loss for I.ILCO's reliance upon a 1901 ence, City Trust Safe Deposit and suretv Co.1004 of Philadelphia v.

'for the proposition

Wilson Manufacturing Co., 58 A.D. 2715~I3 N.Y.S.

that "it 18 difficult to say in any hat a business act is not within the powers of a corporation."given case tIronically. the City Trust case di'd not avon involve Neu York State Corporate Law. Defendant, a West VirEinia l

corporation, sought to avoid an indemnity agreement previously given.

It argued that its act was "ulta vires" under the laws of West Virginia.

l but it failed to offer any evidence as to the West Virginia Laws. The

court hold that, absent such evidence, defendant could not avoid its I contractual obligation.

l

- Does LILCO sincerely believe that a judge writing a decision in 1901 would have considered that the direction of traffic or the declara-tion of a public emergency constituted a " business act" as the term was l

employed in the City' Trust case?

I I LILCO is mistaken in its view that the power to undertake actions i necessory or convenient to effect its corporate purposes has no bounds.

I A corporation lacks power, express or implied, to engage in activities l

uhich are contrary to public policy (state of New York v. Abortion i Information Agency. Inc. , 37 A.D.2d 142, 330 N.Y.2d 927,.aff'd. 30 N.Y.2d l 779. 339 N.Y.5.2d 1/4). The implemntation of the PLAN amounts to an .

l - -

~

exercise of thO police power. Th2 latter can only be exercised by the-

' STATE and upon proper delegation, the municipalities. The exercise of euch power by LII.C0 would accordingly violate the public policy of this state. .

THE EXECUTIVE LAW ARTICLE 21--- ,

LILCO claims that the activity which it proposes to take under its PLAN is directly supported by New York State Executive Law, Article' 2B.

This Ipu is entitled " State and Local Natural and Man-Made Disaster pre-paredness" and is found in Sections 20 - 29 of the Executive Law.

Lihat was the intention of the Legislature in enacting this law?

What does the law provide. .

Article 2B of the Executive Lau involves tho distribution of powers hold by the Executive Branch of State Government. It clearly expresucs the intention of the Logislature to confer the STATE's power to plan for and to respond to disaster situatione sol'ely upon State and local government. It establiches a framowork for state and local co-operation in planning and preparing for emergency responses to all kinda of disasters, including nuclear accidents. Thus, this Statute creates a state agency, the Disaster Praparedness Commission (DPC) to cocrdinate state and local emergency responses. This legislation authorizes each county and city to plan for disasters and delegates authority to STATE and local officials to offectuate those functions.

The Court, no matter hou many times it has read and re-read Articic 2B, could not find any authorization for LILCO, express or implied, to exercise the STATE's police pcuers in emergency situations. What is the basis of LILCO's claim that Article'2B of the Executive Law author'izes it to implement its PLAN 7 ,

LILCO rests its claim of authority upon two sub-paragraphs, Soccion 20-1(a) and Section 20-1(e) contained in the statement of policy that constitutes the preface to Article 2B. Section 20 of Article 2B of the Executive Law provides se fdllows: .

"$20. Natural and , man-made disasters; policy, definitions

1. It shall be the policy of the state that:
a. local government and emergency service or$anizations continue their essential role as the first line of defense in times of disaster, and that the state provide appro- -

priate supportive services to the extent necessary:

b. local chief executives take an active and personal role in thw development and implementation of disaster prepared-ness programs and be vested with authority and responsibil-ity in order to insure the success of auch programs;
c. stato and local natural dienster and emergency response functions be coordinated in order to bring the folicat pro-toccion and benefit to the peoples
d. 6tato resources be organizcd and prepared for immed- .,

inte effective response to disasters which are beyond the capability of local governmente and etcerEency '

service organizationsi and

e. state and local plans, organizational trrangements, and response capability required to execute the provisions of this article shall be the most effective that current .
circumstances and existing resources allow.

4

2. As used in this article the following terms shall have the following meanings:
a. " disaster" means occurrence or imminent threat of wide spread or severe damage, injury, or loss of life or property resulting from any natural or man-made causes, including, but not limited to fire, flood, earthquake, hurricana, tor- .

nado, high water landslide, mudelide, wind, storm, uave action.

- volcanic activity epidemic, air contamination, blight, drought, infestation, explosion, radiological accident or water contam- ,

instion. .

b. " state disaster emergency" means a period beginning with a declaration by the governor that a disaster exists and end-ing upon the termination thereof.
c. " municipality" means a public corporation as defined in subdivision one of section sixty-six of the general construc-tion law and a special district as defined in subdivision -

sixteen of section one hundred'two of the real property tax law.

d. "commiAsinn" means the disaster preparedness commission created pureunne to section cuenty-one of this article.

e, " emergency services organization" means a public or pri-vote agency, organization or group organized and functioning for the purpose of providing fire, medical, ambulance, rescue food or other services directed toward relieving housing,fforing, human su injury or loss of life lyr damage to property as a result of an emergency, including non-profit and govern- .

mentally-supporte,d organizations , but excluding governmental agencies.

. f. " chief executive" means: .

(1) a county executive or manager of a countys (2) in a county not having a county executive or manager, the chairman or .other presiding officer of the county legislative body:

(3) a mayor of a city or. village, except where a city or vil-la (4)gea has a manager, supervisor it shallexcept

.of a town, mean where such managers and a town has a manager, it shall mean such manager.

This Section states general STATE policies including the proposi-tion that " local government and emorgency service organizations centinue their essential role as the first line of defense in times of disaster" and that the STATE shall provide appropriate supportive services to the extent neccesury. This policy statement, contrary to LILCO's acecrtions, does not explicitly or implicitly authorire private. corporations to exercise police powers in the event of a nuclear a:cident.

Section 20-1(a) acknowledges the role of pri,vate groups called -

" emergency service organizations" in providing :eervices directed toward relieving human suffering, injury or less of life or damage to preperty" such as fire, medical, ambulance, food, housing and similar rescure eer-viceu. -

These private abergency service organiz.ations have not becn dele-gated in any way, shape, manner or form to the governmental functions which tho PLAN contemplates. The Legislature, if 1't intended to delegate the broad-scale powers LILCO claims, would have done so in clear explicit language in the substantive portions of Article 2B which presently only confer these pouars upon state and local governments.

C O N C T.llR T O N Thune declaratory actions which arise out of LILCO's attempt to secure approval of its utility sponsorwd PLAN clearly preRent a justi-ciabic controversy and the complainte do state a cause of action. The limited issue of LILCO's authority to implement its ptAN under the laus of the State of Neu York does not involve nay disputed questions of fact.

LII.00, as previously mentioned, intends to execute the PT.AN

  • solely with its own employees and intends to carry out activities which are inherently governmental in nature. These powers have been enlely con-forred upon the STATE and its political subdivisions. LILCO, a private corporation, is a creature of state law and only has those powers which the STATE has conferred upon it. These powers, express or impliad, do not include the right to exercise goverheental functions.

l Thuro is a paradox,which is present in this controversy and l involves the philosophy of the creation of our government. In order to l

recog,nize this paradox, one must examine the philsophy of our founding -

fathers in creating our government.

l

  • The political ideas behind the Declaration of Independence and t.be Con'stitution were not the sole inventions of the founding fathere.

Franklin, Jefferson, Madison and other colonial leaders were learned and widely read men, steoped in the ideas of the English political phumophers.

The most influential of these philosophere upon the founding fathers uss John Locke (Sea Clinton Rossiter, "1787: The Grand Convention",

(MacMillen. 19661),

Locke, an avid opponent of the divine right theory of government, put forth his ideas about the creation, pu,rpose and powers of government in his " Treatise of Civil Government" written in 1689. His ideas, for the purpose of this discussion, may be surmarized as followe r

1. Individuals originally existed in a ecot.o of naturv.

. I?och individuni had the right to do whatsoever uns necessory for his' prusorvation and the right to pnish those who commtmd crimos against the laws of nature. Locko called thcee rights the "supremo power".

2. The weak were at the 6ercy of the strong in the state of naturo. Each individual, because of the situation, entered into a

" social contract" with every other individual and this social contract resulted in the creation of a civil society or community. The "aupreme ~

power" is surrendered by each individual to the community.

3 The community is created for the purpose of establishing a government, uhich is accomplished by means of a trust. This means that govern. ment only enjoys a " fiduciary power". Thus the community does not surronder the " supreme power but merely entrueto it to government.

4. The powers of government are limited. Covernment is account able to the community. The community, if government breaches its trust, had a right to " appeal to the heavens". This latter phrase meant the right of revolution (our founding fathers substituted the right e.o change p,overnments by means of a Irce election for Locke's right of revolution). .

What is the paradox 7 ,

The STATE and COUNTY would be breaching their " fiduciary" duty to protect the welfarc of its cititens if thuy permitted a privutu corpora-tion to uuurp the police powers which worc entrustad solely to them by the community. L1LCO has to reali 0 that this is a government of law nnd not of men ne private corporations (Sec John Adams "Draf t Massachusotts -

Cons _Qtution, Declaration of Right s . ART XXX._1779) .-'-

On the other hand, the STATE and COUNTY maintain that they csnrcised their police powers in order to protect the communicy in their determination not to adopt or implement any emurgency plan for Shoteham becanao of the " impossibility" to have a " safe evacuation" in cede of a nuclear eccident. LILCO asserts that this position is nothing more than a " sham" and amounts to a breach of the STATE's and COUNTY's duty to pro-tect .the citicens in case of a nuclear accident at Shorcham as envisioned by Article 2B of the Executive Law. LILCO is in effect reminding the STATE and COUNTY governments that "Non est Princeps Super Legos, Sed Leges Supra Principcm" (The Prince is not above the Laws, but the Laws above the Prince , Pliny the Younger , " Panegyric of Traj an" Sec. 65 100 A.D. ) .

Thor'c is no need to resort to a revolution or the usurpation of l governmental powers by LlLCO if there has in fact been a breach of a trust hv the STATE and COUNTY. LILCO can test this matter in another tribunal b'y connencing an action in the nar'ure of a urit of mandamus or in the aren.

of public opinion which manifests itscif by the results of an election.

Settic judgmont on notice. . ,

^

~

J.S.C.

l I . .

0

., UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commis'sion

)

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4

) Low Power (Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of Suffolk County and State of New York Renewal of Request for NRC Supplementation of the Shoreham FEIS as Required by NEPA have been served on the following

.this 4th day of March 1985, by U.S. mail, first class, except as -

otherwise noted. -

James L.,Kelley, Chairman Edward M. Barrett, Esq.

Atomic Safety and Licensing Board Long Island Lighting Company U.S. Nuclear Regulatory Commission 250 Old Country' Road-Washington, D.C. 20555 Mineola, New York 11501 Judge Glenn O. Bright Honorable Peter Cohalan Atomic Safety and Licensing Board Suffolk County Executive U.S. Nuclear Regulatory Commission H. Lee Dennison Buildi.ng Washington, D.C. 20555 Veterans Memorial Highway Hauppauge, New York 11788 Judge Elizabeth B. Johnson Oak Ridge National Laboratory Fabian G. Palomino, Esq. #

P.O. Box X, Building 3500 Special Counsel to the Oak Ridge, Tennessee 37830 Governor L Executive Chamber, Room 229 Herzal Plaine, Esq'.* State Capitol U.S. Nuclear Regulatory Commission Albany, New York 12224 1717 H Street, N.W., 10th Floor Washington, D.C. 20555 W. Taylor Reveley, III, Esq.#

Anthony F. Earley, Jr., Esq.

Edwin J. Reis, Esq.

  • Robert M. Rolfe, Esq.

Bernard M. Bordenick, Esq. Hunton & Williams Office of Exec. Legal Director 707 East Main Street U.S. Nuclear Regulatory Commission Richmond, Virginia 23212 Washington, D.C. 20555

0 e .

Mr. Martin Suubert James Dougherty, Esq.

c/o Cong. William Carney 3045 Porter Street, N.W.

1113 Longworth House Office . Washington, D.C. 20008 Building Washington, D.C. 20515 Mr. Brian McCaffrey Long Island Lighting Company Martin Bradley Ashare, Esq. Shoreham Nuclear Power Sta.

Suffolk County Attorney P.O. Box 618 H. Lee Dennison Building North Country Road Veterans Memorial Highway Wading River, New York 11792 Hauppauge, New York 11788 Jay Dunkleberger, Esq.

Docketing and Service Branch New York State Energy Office Office of the Secretary '

Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza Washington, D.C. 20555 Albany, New York 12223 Nunzio J. Palladino, Chairman

  • Comm. Frederick M. Bernthal*

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm. l Room 1114

~

Room 1156 1717 H Street, N.W. 1717 H Street, N.W. -

Washington, D.C. ,

20555 Washington, D.C. 20555

. Commissioner Lando W. Zech, Jr.* Comm. Thomas M. Roberts

  • U.S. Nuclear Regulatory Commission- U.S. Nuclear Regulatory Comm.

Room'1113 Room 1103

1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555 Commissioner James K. Asselstine* Stephen B. Latham, Esq.

U.S. Nuclear Regulatory Commission John F. Shea, Esq.

Room 1136 Twomey, Latham and Shea .

1717 H Street, N.W.' 33 West Second Street Washington, D.C. 20555 Riverhead, New York 11901 o

l

. - l

/J{'D Karla J. Letsch F "

KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036

  1. ~ By By Hand Federal Express DATE: March 4, 1985

-- . - . . - . . . - - _ . . . - . - . . - - . - _ .-.. _-

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