ML20108B440
| ML20108B440 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/04/1985 |
| From: | Brown H, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#185-893 OL-4, NUDOCS 8503070216 | |
| Download: ML20108B440 (24) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION USCKETED U5h?C Before the Commission
- 65 E -6 A!! :21 EON " Erc:g r c.,
'-'L 7.3. i.
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docke't 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 i
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 I
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 Lcw Power Operating License, dated June 27, 1983.
O B503070216 B50304 i-gDR ADOCK05000g2
l O 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
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authority under the Constitution and laws of the State of New
. York to implement the o5fsite emergency response plan it has
_ proposed as the basis for its full power license application.
A copy of the Court's decision is attached hereto.2/
'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.3/
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
-that LILCO will not be issued a full. power operating license.
2/-lIn' 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 legal authority to implement its proposed offsite plan.
The February 20, 1985 State Supreme Court decision was issued in the declaratory judgment. actions which were filed in March 1984 by the State and
-County in response to the Laurenson Licensing Board's urgings.
3/
Those arguments have been made previously, so we simply refer Lthe Commission's. attention to'the Answer and Opposition of Suf-folk County to LILCO's Motion for i Low Power License (June 27, 1983), Suffolk County Response to-LiLCO and NRC Staff Arguaents that the-Shoreham Final Environmental' Impact Statement Does not-
- Need tojbe Supplemented (July 29, 1983), Suffolk-County Brief in 7
' Support of Appeal of Licensing Board Partial Initial Decision
.(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.
=
D*
e 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 Herbdrt 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
,p' n
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 l
l
Ir"'
No. St /4615 i
h-l'i, 1985 HUP!1EME COURT. SUFF01 K COUNTY l:Al(10 ti. O li0 M O,
-Plaintiff, By OCII'RI, J.S.C
- a[',ailm t-1.hMC 1St.AND 1.IGitTING C0ttPANY,
. no. fondant.
DATso
............ 7 February 20, 1985 COUl4TY OF SUFFol.K,
- :lf,d in s t-l.ON G 1 :;1.ANI) 1.lGitTI NG COttt'ANY,
Defendant.
TOWN OF SOUTilAt1PTON, Plaintiff,
-against-8 1.ONG I'SI,AND LIGitTING COMPANY, Defendant.
FAluAN C. PALOMINO, ESQ, ATTORMEYS FOR DEFF,NDANT ttpeu. Counsol to the Covernor i.ONC IS).AND LICllTING COMPAllY:
of Nuw York St.:stu ib:ecutive Chambers KOSALIND ti. CORDON, ESn,.
2 World Trado Center 2500 Old country lload t:cu Yo rk, H. Y, 10047 Mineola, N.Y. 11501 and and ttollERT Antt At1S, ESD.
ItUNTON & 0I1.1.1 AMPi, E505.
At i.orney Coneral
'/07 E. Ifnin St.
Richrr.oiul, Viry, inia ?.3219
.unrld Trndu Center
- w York, N. Y.
10047 By:
. lames E. Farnh;m, F.sq. and 17-11.iry tt. Cundrum, Esq.
Kathy E. 11. fl:Glcs!.y, Kno.
Of Counsci
-!!!T !"!:EYS FOR COUNTY OF SUFFOLR:
- ARYlH 11 ASilA!(E. ESO.
r:et c: an8 Meriorial lii.hway f
II:,uppuur,u, N.Y. 11788 liv :
Arlene 11. Lindsay, Esq.
of Counsel and KIRKPATKICK, LOCKilART, JOHNSON &
lillTCllISON, ESQS,
1500 Oliver Bldg.
Pittsburgh,.Pa.15222 15y :
David A. Brosmloc, Esq. and Kennoch M. Argentiori, Esq.
Of Counsol ATTORNEYS. FOR PLAINTIFF TOWN OF SOUTHAMPTON:
TUO> LEY,1,ATHAM & SilEA, ESQS.
33 Dest Second St.
Itiverbund.
N. Y.
11901 tiy _
Stephon B. Latham, Esq.
Of Countiel
-e h
INTRODUCTION The State of New York (STATE), the County of Suffolk (COUNTY) and the Town of Southampton (TOWN), c'ommenced separate declaratory judg-ment actions against the Long Island Lighting 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 emergency 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 cross-moved for summary judgment.
The Court, in order to address the issues contained in those motions, must examine the events leading up to tha commencement of these declaratory judgment actions.
THE ATOMIC ERERGY ACT OF 1954 The Congress of the United States, cognicant of the need for nhw methods of producing energy, passed the Atomic Energy Act of 1954.
l This legislation set forth the authority of the Federal government to negotiate the construction and licensing of nuclear production facilities in the United States (United _St_ates v. City _of New York. 463 F.Supp. 604).
Th9 Atomic Energy Commission %EC) was designated by the Act to oversee the construction and operation of nuclear power plants.
This was to be accomplished by a two step licensing, procedure.
First, the operator of a nuclear plant was required to obtain a construction permit from the l
AEC in order to build a nuclear facility.
Sccend, the operator after.
l completion of the facility, was required to secure a license to operate l
the plant from the AEC.
The AEC, in the latter licensing procedure, was interested mainly in the onsite preparation' for an amorgency.
The licensing and regulating functione of the AEC use trans-forred to the National Regulatory Commission (NRC) by the Reorganization Act of 1974 (U.S.C. S5841 (f) ).
SHOREHAM In 1968 LitCO applied to the AEC for a permit to construct an l
820 megawatt nuclear powered electric generating facility on property located at Shoreham in the Town of Brookhaven, County of Suffolk State l
of New York.
The application was opposed by a private organization known as the Lloyd Harbor Study Group.
The latter was permitted to intervene l
and cross-examine LILCO's witnesses at hearings before the AEC.
None of the plaintiffs berein were parties to the permit appli-cation proceedings.
However, the late H. Lee Dennison, Suffolk County Executive at the time, made a limited appearance before the licensing board in 1970 and spoke in favor of the issuance of a construction permit
-1
e 8
e Construction ?armit 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 Shoraham construction permit was the catalyst for the issuance of an order by the Suffolk County Executive to the appropriate COUNTY department 'to develop. a " Response Plan for Major Itadiation 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) at Harrisburg, 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 188vance of an operating license.for a nuclear plant upon the existence of an adequate offsite emergency plan.
The THI accident focused attention on the fact that nuclear accidents may ondanger surrounding communities and require the mass evacuation of puople in thone communities, Congress, in response to the events which occurred at THI, determined that no nuclear plant should be licensed to operate unless an adequaco emergency plan could be drawn up and implemented for the area surrounding the nuclear facility and passed the NRC Authorization 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 mile radius plume. exposure pathway emergency. 71anning zone (EPZ and also within a fif ty mile radius food inges' tion pathway (45 Fed, Reg. 55, 402 August 19, 1980 and 10 C.F;R. $50.33(g) 1984).
An operating 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 2he nuclear facility in the event of a radiological emergency ( 10 C.F.R. 550.47(a)(1)1984).
FROM PROTAGONIST TO ANTAGONIST A careful atudy 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" siped by County Exocutive John V. N. Klein and LILCO on December 28, 1979 and the approval.
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of the terms of said agrewment by the County Executive Elect, Potor F.
. Coholan, gives credence to this analysis of the NRC regulations (see letter from John V N. Klein to Ira Freilichor, Vice Pro 81 dent of LILCO, anced December 31l 1979).
A numbur of discussions took placo between LILCO and COUNTY representulives between 1980 and 1981 for the purpose of determinin5 the best means of developing an acceptable RF,RP.
These discussions led to the signing of a contract between LILCO and the COUNTY on March 15, 1981.
The COUNTX ngreed to develop an emergency plan and LILCO in turn consonted to paying the projected $245,000.00 cost of preparing the plan.
Thw' County Legislature, in September 1981, approved the terms of the agreoment and LILCO advancud $150,00000 as the first installment on tha pnyment of
$?.4 5,300. 00.
The latter una 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 returned because of the "a, parent conflict of interest" in' the acceptance of any funds from LILCO for the purpose of preparing an emergency plan (see 1ctror dated February 19, 1982 from Lee E. Roppelman, Director of Planning for Suffolk County to LILCO).
On March 23, 1982 the Suffolk County Legislature passed a resolution authorizing the Suffolk Cbunty Planning Department to prepare a new emergency plan which was 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 emergency plan (see letter dated February 19, 1982 from Lee E. Koppelman, Director of Planning for suffolk County,toLILCO).
On March 23, 1982 t.he Suffolk County Legislature passed a resolution authorizing the Suffolk County Planning Department to prepare a new emergency plan which was to be submitted to the Legislature for its consideration (Resolution 262-1982)
The Planning Department, in accordance with the Legislative directivw, submitted a RERP in December 1982.
A number of public hearings were hold by the Legislature to codsider the PLAN in January, 1983.
The hwgislature, with the concurrence of the County Executive, Peter F. Cohalan, decided not to approve, adopt or implement any RERP for Shoreham.
The reason given for this action was that
"[Since) no local radiological emergency 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 is hereby terminated, and no local radiological emergency plan for response to an accident at the Shoreham plant shall be adopted or implemented.
[Slince no radiological amargency plan can protect the health, welfare, and safety of Suffolk County resi-dents and, since no radiological emergency plan shall be adopted or implemented by Suffolk County, tme County Executive is hereby directed to assure that actions taken
) -
'I
by any other governmental agenc~
be it. State or Faderal, are consistent with the decisich mandated by this Reso-lution."
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(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, anncunced that no i
RERP for Shoreham would be adopted or implemented by the STATE.
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THE LILCO TRANSITION PLAN LILCO, interpreting the COUNTY's refusal to adopt a plan as a derogation of its responisbility under Article 2B of the New York Execd-l tive Law, submitted its own plan to the NRC.
The PLAN has been desig-nated "The Lilco Transition Plan".
(PLAN)
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The PLAN describes in detail the actions which LILCo proposes -
I to take in the event of a radiological emergency at the Shoreham facility.
The PLAN is contained in four volumes.
One volume is entitled "Shorshsm Nuclear Power Station - Local Offsite Radiological Emergency Response Plan".
Two 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 Organization (LEllO).
This group is composed of over 1.300 LILCO employees and con-sultants.
2.
The Director of LERO, a L1LCO employee would have the primary He responsibility for.the coordination and implementation of the PLAN.
the following mentioned functions would be carried would make certain that out in. the event of a nuclear accident at Shoreham.
3.
Assessment oE the severity of the nuclear accident.
4.
Determination of the action to be taken in order to protect the public.
5.
The declaration 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.
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7.
The instruction of the public by means of EBS messages'as to protective measures to be taken, including selective and general cvacuation 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 tuo mile sterch of a tuo-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, etnes 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 flow 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 trailblazer signs along all evacuntion rotaten.
10.
The removal of stalled cars and other obstacles from the roadway by tow trucks.
11.
The formulation of protective action recommendatione which are to ho broadcast to the public present in the ingestion exposure path-way.
These recommendations may include the following:
a)
The placement of' dairy animals on stored feed.
b)
The removal of dairy animale from contaminated fields co-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 dr scrubbing of fruits and vegetables prior to consumption.
f)
The suspension of fishing operations.
12.
The making of decisions and recommendations with reference 2o recovery and re-entry to the EPZ after a nuclear accident.
-5.
__m___ _ _ _ _ _ _ _ _ _ _ _ _ _ _
e TIIE 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 lawfully implement its PLAN and that neither State nor Federal law prevent LILCO from perform-ing the functions described therein.
The STATE, COUNTY and TOWN 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.
The Federal Emergency Management Agency (FEMA), the Federal body charged with the initial reviews of RERFS, has advised the ASLB that it cannot determine whether the LILCO PLAN can be implemented until the logal authority issue has been resolved (see Letter of Richard W. Kreiner, Assistant Associate Director, Division of Emorgency Preparedness and Enp,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 tha parties to get a resolution in the State Courts (Transcript ASLB January 27, 1984 p. 3675).
On March 7, 1984, separate actions se'cking a declaration that LILCO did not have legal authority to execute its PLAN was commenced 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 pou. ors of the STATE.
The COUNTY specifically mentioned that the execution of the PLAN would violate the Nuw York State constitution, the Municipal Home Rule Law and the Executive Law.
The STATE similarly alleged that LILCO is precluded from exurcising the functions mentioned in the PLAN.
In addition, the STATE cited that the implementation of the PLAN would be violative of the Transportation Corporations Law, the Business Corporations Law, the vehicle and Traffic Law, the Public' Health Law, the Agricultural and Markets Law and the Penal Code.
LILCO did not serve an answer but immediately moved to dismiss the actions on the grounds 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 with reference to its motion, removed the declaratory judgment actions to the Federal District Court in April 1983.
It cla-imed that the challenge to its legal authority-presented a question of federal law that was within the original juris-diction of the federal courts.
The STATE and COUNTY filed motions for a remand of their actions back to the New York State Supreme Court.
The Fmlural 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, 1984).
On August 14, 1984, t.he STATE and COUNTY actione were 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 fati 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's characterikation of the complainte as being based on a
. hypothetical scenario is without any basis in fact and can only be attri-buted to " wishful thinking".
One does not have to be a genius to ascer -
tain~that the issue presentod by these actione.in the legal authority of LILCO to execuce 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 neceesary elements of a justiciable controvery.are a legally protected interest and a present dis
- v. County of Suffolk, 312 Misc.2d 652,pute (Davis Construction Corp.
447 N.Y.S.2d 355,~aff'd. 95 A.D.2d 819, 464 N.Y.S.2d 519: Board of Co-Operative Educational Services,~'Nassau County v.
Gol_ din, 38 A.D.2d 267, 328 N.Y.S3 d 958.
These eIIments are present in the instant matter.
The plaintiffs have an interest in insuring that their governmental power 8 Bre 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 InteruAt Research Group _, 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 ariscs as to whether there has been a breach of duty or violation of the law.
Then the courts can declare the rights and obligations of the parties, and if a breach is found, compel compliance, award damages or otherwise order appropriate action to be taken.
~
That is the traditional, but not the only way in which a gonuine legal dispute may arise or be resolved by thw courts.
For instance, when a party contemplates taking certain action a genuine dispued may 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 compliance 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 theory of the declaratory judgment actions authoriced by CPLR 3001 (lacra v. Alderenn Dock Yards, 256 N.Y. 298, 176 N.E. 401: Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3001, pp. 355 357: 3 Weinstein Korn Miller, N.Y. Civ.Prac.,
par. 3001.02: Borchard Declaratory Judgments, 9 Brooklyn L Rev., pp.1 3).
The controversy concerning LILCO's legal aatherity to implement its PLAN is real and presenr.
Reeolution of the dispute will determine what the police powers of the STATE entail and if those powers have been usurped 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 ripe for a judicial determination in a declaratory judgment action.
Tlit ISSUE LILCO, as previously mentioned, moved to dismiss the complaints pursunnt to Section 3211(a)(7) of the CPLR on the grouqd that the com-plaints fail to state a cause of action.
LILC0 contends that (1)
"tiew York lau does not prohibit it from performing the activities mentioned in the complaints; and (2) if state laws "were construed as plaintiffs allege, they would be preempted under the Supremacy Clause of the United States Constitution and by federal statues and regulations."
The Court, at the behest of the parties, issued an order dated October 4, 1984 which limited the issue to be decided to that of LILCO's legal authority to implement its PLAN under the laws of the State of New York.
The parties have submitted the pleadings, trans cripts of their oral-argumettts before.the Court, affidavits, the PLAN, voluminous briefs and documents and there is no need to hold a hearing as none of the material facts 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 tTRC finds is adequate and capable of being implemented.
LILCO has submitted a PLAN to deal with a rndiological emergency at Shoreham.
The plaintiffs have challenged LILCO'r legal capabilities to perform the i
-8 mum me um ims i
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 Icgality of LILCO's performance of these functions under the laus of the State of New York is be' fore this Court for.a resolution.
THE POSITIONS LILCO's basic premise for its view that it has a right to impleme'nt the PLAN under the laws of the State of New York is found in the following statement contained in the PLAN at P 1.4-1.B:
"(N)othing in New York State law prevents the utility from performing the necessary functions to protect the public.
To the contrary, Article 2-B o'f New York State Executive Law, Sec. 20.1.e. makes it the policy of the 5thre 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 et pages 26 and 27 of the minutes in the following concise mannor:
"Under the LILCO view, as a private citizen or as a corporate citizen, any action that I want to take of any type that is not prohibited by law, or that does not threaten the health of one of my fellow citizens, unless that action is expressly prohibited by State law, that I've got a right to do it.
That's part of my rights as a citizen of this country, and if I were a citizen.of New York, it's part of my rights under the New York constitution."
LILCO, in addition to this argument, also maintains that its activities under the PLAN do not amount to an exercise of police power.
It bases its contention on two grounds.
First, the PLAN "does not propose to, and will not, use force or the threat of force to compol obedience to anyone or anything."
Second, 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 plaintiffa' argument is rather simple.
They maintain that the activities which are to be performed by LILCO employees as delineated in the PLAN are governmental functions and amount to a usurpation of the STATE's police power and thus is prohibited under New York State Law.
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z 1
I THE STATE'S POLICE POWER i -
A resolution of the controversy herein necessarily involves a j
discussion of the source, nature and exercise of the police power of the
. STATE.
l (a)
THE SOURCE 4
In our system of government, the police power is an inherent attribute and perogarive of state sovereignty (Teeval Co. v. Stern, 301 N.Y. 226. Cert. den. 340 U.S. 876).
The Tenth Amendement to the Constitution of the United States specifically provides that the exercise of the police power for the. general welfare of the public is a right reserved to the States (Brown v. Brannon, 399 F. Supp, 133, aff'd, 535 F 2d 1249).
This principle has been affirmed by our Courts aven before the turn i
of the 1900's (See Nunn v. People of Illinois, 94 U.S. 113).
i (b)
THE NNIURE 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 can one dis 1ute that the protection and safety of persone and property is unquestionably at the core of the STATE's police power (Kelly v. Johnson, 4'25 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-l poses of the police power of the STATE (Adler v. Deegan, 251 N.Y. 467:
l-Yonkers Community Development Agency v. Morris, 37 N.Y.~2d 478, 373 N.Y.5.2d.
l 112).
l (c)_ THE EXERCISE Who may exorcise these police powers?
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 LILCO have an inherent right to' exercise these police powers?
The acceptance of the cardinal rule, that the police power is an inherent perogative of the STATE, can only lead to the conclusion that this power can only be oxorcised by the STATE or by governmental subdivisions In fact, upon whom the State constitution or State laws confer such power.
municipal corporations, who are creatures of state law and whose sole purpose 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 Legislature emn-fers upon them (Rochester __v. Public Service Commission. 192 Misc. 33, 83 N.Y.S.2d 436, aff'd. 17 A.D. 172,.89 N.Y.5.2d 545, aff'd.301 N.Y. 801:
JPeo le ex rel Elkind v. Rosenblum, "184 Misc. 916, 54 N.Y.S.2d aff'd.
409 T.V. 859, 56 N.Y.S.23 5Z6).
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 -
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_n
It inten-ds to declare an emergency and advise citizens of'the steps they should take to protect themselves.
LILCO intends to mansge a major, full-senlo evacuation. of a 160 square mile araa.
It intends to close public hiEhvays, re-route traffic and direct the flow of traffic.
The utility intends to decide upon and ov.erseo steps to secure public health within a fifty mile radius of the nuclear facility.
LILCO intends Lo overseo cvacuation Centers for more than 100,000 people.
It intends to decide when and in what fashion citizens may return to their homes.
in prwviously contaminated arcas.
I,ILCO maintains thc these actions do not involvc a,overnmental
. functions and that its proposed " management" of the evacuatiin of the residents of Suffolk County would not involve an exercise n7 the STATR's police'pnwer.
What is the basis of I.II.CO's assertion?
Two reasons are advanced by LILCO for its stance.
First, LILCO does not propons to use force or the threat of force to compel obedience to its recommendations.
Second,- the esscoce. of the STATE's police pouer 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 emergency 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 exercise of governmental functions does not necessarily require the imposition of penalties as indicated by the following innguage in the caso of Branden Shores. Inc. v. Incorporated villarlc of Greenwood Lake, 68 Misc.2d J43, 325 RTY.S.2h 957 at page 960:
"The term " police power"' has often been defined as that power vested in the Legislature to make, ordain and ostablish all manner of wholesome and reasonable lawn, statutes and ordinances, with penalties or without, not repugnant to the Constitution, as they shall jud be for the good and welfare of the commonwealth,ge to and of subjects of the same.
Whatever affects the peace, good order, morals and health of the' community comen within its scope."
Furthermore, the bold statement that the PLAN is devoid of any coercion is incorrect.
Does t into a one way street leave motorists free to drive,urning a two-way street 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 motorist thus compelled to travel in accor6ance with the route set out in the PLAN 7 Does LILCO REALLY believe that its daclaration of an emergency and evacuation on the emergency broadcast channel is any less compulsive because the directive will not be enforced by a threat of incarceration?
LILCO's regulation theory is likewise without merit.
It claims that its own actions do not " regulate ce.orgency responses" but rather consist of " planning" f6r and " responding" to a radiological emergency.
-il-
T.11-(;0 In " planning" for a rmlini.onical omornoney unnlil in
- s. f r..:., h e,
performinft functions that nre governmental in naturo.
In "rosponelbig" to a radiological cmorgency, the utility would undcreake to perform acti-vitics that are roscrved to the STATE and its politient nubdivisions.
In fact, the Courts of the State have recognized that the func-tions LILCO intends to perform fall within the STATE's historic police power.
Scu, eg. Yonkers Community Dc";*'.opmont Agency v. Morris, 37 N.Y.2d 478, 373 N.Y.S.2d 112. (1975), aap, dishtssed, 423 C5, 10TO~Tr975)
(matters' concerning the public acalth, satoty and wolfero are within the Sente's police pouer): Rovce v. Rossaco, 159 14is c. 236, 287 N.Y.S. 692 (1936) (abatement of public omorgencies is within State's police powcr).
People v. Bielmeyer, 54 Misc.2d 466, 468-69, 282 N.Y.S.2d 797 (1967)
("It has long been recognized that the power to regulate and control the use of public ronds and highways is primarily the exclusive prorogative of the States."); Tornado Industrics, Inc. v. Totm. Board of oyster Bay, 187 N.Y.S.2d 794 (T959)~ (control of traffic is a matter within tne polico powcr); City of _U_tica v. Water Pollution Control nonrd, 6 App.Div.2d 340, 177 N.Y,S.2d 47 (1955), aff M., 5 N.Y. 2d 164, 182 N.Y.5.2d 554 (1959)
(control of water pollution is within the public power): Sec, g.cnerally, N.Y. Const. Art. 1, sec. 6, notes 681-009 (McKinncy)).
No omount of semantics can chang.o the true meaninn of the activitics which LILCO proposes to parform in the event of n vndiological acci< lent nc Shoraham.
No amount of ink can cover up or blot out t:he fact i.IT.CO's "intcoded functions" are inborontly governmental in naturc rhnt and fall clearly within the ambit of the STATE's polico power.
Tile DELEGATION OF POLICl* l'OWiiRS 1)ons 1.lLCO have any statutory nothority to c xcrcise thu functione cantained in the PLAN 7 llow are the STATE's polico pouer. <lelegated?
iinve of these pouers been delegated to LILCO?
.an.
(a)
TO LOCAL GOVCRNHENTS The COUNTY, TOWN and other local governmental subdivisions have been dologated "nonrly the full monsure of the STATE's polico pouct by the State Constitution and various Stato statutos" (lloctzer v. Countv of Eric, 497 Supp. 1207).
Articic 9, Section 2 of the M York State CoE titution is the primary source for the authority of local governments to exerciso the police power.
Section 10.la(12) of the Municipal liomo Ruin Law e g ressly delegates police power to governmental units by. con-ferring nut 5ority upon them to " provide for the well-being of persons nr property thercin."
Thus, theso constitutional and statutory provisions in of themselves, authorize the COUNTY and TOWN to exerciso the STATG's police power.
Ib)
TO PRIVATE CORPORATIONS The Court h'as been unable to find any provisions in the State Constitution or State statutes which authorize LILCO or any other private corpoiation to exercise any portion of the STATE's polico power.
In fact, any attempted dologation of polico power to L1LCO would mouitt _ __
~
to an unlawful delagation of governmental powers (Seo 2_0 N.Y. Jur. 2d,
" Constitutional Lau" S183).
A governmental unit can not bargain away its police power to a private party or organization (Beaco_n_ Syracuse Associates v. City of Syracuse, 560 F. Supp. 188).
Covernmental functione and resp 6nsibilities cannot be surrendered by contract uhere police power, public safety and welf are are involved (Patro1 men's Bonevolont Ass'n.
- v. City of Neb York. 59 Misc.2d 556, 299 N.Y.S;2d %6).
~
CORPORATE POWERS LILCO is nothing more than a creature of the STATE.
Corporations, unliko natural persons, possess only those powers that have been conferred upon thom by the state of their incorporation (14 N.Y. Jur. 2d " Business Relacionships, 6340).
Corporate powers do not exist merely because they ar6 not expressly prohibited.
A valid basis must be demonstrated for the existence of a claimed contested power under the laws of the state under which the corporation has been created.
(See 6 Fletcher,_Cy_clopedia of C_orporations 5 2 4_7 6_ _- 2_4 8 6, Rev. Perm. ed. 1979).
The express 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 Business Corporation Law.
What express
_ powers does LILCO have as a direct result of these neatutes?
Section 11 of
- .e Transportation Corporation Law grants electric corporations and gas and electric corporations the power to generate, ac-quire and supply electricity for heat or power to light public streets, places and buildings.
In addition, such corporations are cmpowered to acquire and dispose of necessary machines and to transmit and dist:ibute 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 consent of the menicipal authori-ties.
Those corporations also have power to acquire real estate, for corporate purposes, but only in the manner preec'ribed by the eminent 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 Busioona Corporation Lau eets forth sixteen general powers which are common to all corporations incorporated pursuant to the laws 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 powere 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 comtnen law and is now codified in Sec-
. tion 202 (a)(16) of the Business Corporation Law.
The latter provides that a enrporation has "all powers necessary or convenient to effect its corporate purposes,"
LILCO states that one of its corporate purposes is to create nnd sell electricity and thus it has the power to build or oper-are a pcuer plant such as Shoreham.
The operation of Shareham, according to _
U '
LILCO, is conditioned upon the existence of an hduquato offsito emergency plun.
Thus LILCO reasons that it has the implied power to implement the 6
PLAN in furthorance of its corporate powers.
LILCO's view' of the scope of implied corporate pouer has no limit.
Furthermore, it has no support in the casos which LILCO hns put forth as supporting its theories.
For example, it cites the follouing four cases which held 1.
That a corporation has implied 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).
2 That a corporation operating a home for persons 60 years or older has the implied power to admit a 59 year old -(In Re He_ime Estate, 166 Misc. 931, 3 N.Y.S.2d 134, aff'd. 255 A.D. 1007, 8 N.Y.5.2d 574).
3.
That a construction company may also perform related professional engineering services- (John B. Waldbillina, Inc. v. Gottfried, 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 agre emen t, provided such paymente do not constitute a prohibited restraint of trado (Leslie v. Lorillard, 110 N.Y. 519).
This' Court can not fathom how LILCO expects to support its claim of authority to declare an emergency and assume responsibility for the evacuation of over 10,000 people on the basis of these cited cases, Likewisc, the Court is at a loss for LILCO's reliance upon a 1901 casc, City Trust Safe Deposit and Suretv Co. of Philadelphia v.
Wilson Manufacturing Co., 58 A.D. 2717~33 N.Y.S. 1004'for the proposition that "it is difficult to say in any i
that a business act is not within the powers of a corporation.,'g ven caseIronically, the City Trust case di'd not avon involve New York State Corporate Law.
Defendant, a West Virginia corporation, sought to avoid an indemnity agreement pteviously given.
It argued that its act was "ulta vires" under the' laws of West Virginia, The but it. failed to of fer any evidence as to the West Virginia Laus.
court hold that, absent euch evidence, defendant could not avoid its contractual obligation.
Does LILCO sincerely believe that a judge writing a decision in 1901 would have c'onsidered that the direction of traffic or the declara-tion of a public emergency constituted a "busineas act" as the term was employed in the City Trust case?
LILCO is mistaken in its view that the power to undertake actions to effect its corporate putposes has no bounds.
necessory or convenient A corporation lacks power, express or implied, to engage in activities which are contrary to public policy (State of New York v. Abortion Information Agency, Inc., 37 A.D.2d 142, 330 N.Y.2d 927,.aff'd. 30 N.Y,2d 779, 339 N.Y.5.2d L/4).
The implemntation of the PLAN amounts to an c=-
+_ ___.______ _ ____________ _______ ____ _ __.___ _ _______ _ _ _
- 1 cxercise of the police power.
The latter can only be exercised by the-STATE und upon proper delegation, the municipalities.
The exercise of such
- power by LII.CO would accordingly violate the public policy of this state.
~
THE F.XF'CUTIVE LAW ARTICLE 217-~
LILCO claims that the activity which it proposes to take under l
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 Ev.ecutive Law.
What 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 held by the Executive Branch of State Government.
It clearly expresses the intention of the Logislature to confer the STATE's power to plan for and to respond to disaster situatione so1~ely upon State and local government.
It establishes a framowork for state and local co-operation in planning and preparing for emergency responses to all kinda of disasters, l
including nuclear accidents.
Thus, this Statute creates a state agency, the Disaster Proparedness Commission (DPC) to coordinate state and local cmcrgency responses.
This legisistion authorizes each county and city to i
plan for disasters and delegates authority to STATE and local officials t'o vffectuate those functions.
The Court, no matter how 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 powers in emergency situations.
What is the basis of LILCO's claim that Article'2B of the Executive Law author'izes it to implomont its PLAN 7 LILCO rests its claim of authority upon two sub-paragraphs, Section 20-1(a) and Section 20-1(a) contained in the statement of policy '
that constitutes the preface to Article 2B.
Section 20 of Article 2B of the Executive Law providea as 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 orSanizations 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 the development and implementation of disaster prepared-noss programs and be vested with authority and responsibil-ity 'in order to insure the success of Auch programs:
c.
state and local natural disaster and emergency response functions be coordinated in order to bring the folleet pro-roccion and benefit to the people; I,
[
d.
state resoutcos be organized and prepared for immed-inte effective response to disasters which are beyond the capability of local governments and emergency service organizationsi and e.
state and local plans, organizational arrangements, and response capability required to execute the provisions of this article shall be the most effective that current c, ircumstances and existing resources allow.
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, hurricane, tor-nado, high water landslide, mudslide, wind, storm, wave action, volcanic activity epidemic, air contamination, blight, drought, infestation, explosion,- radiological accident or water contam-inntion.
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.
" municipality" means a public corporation as defined in c.subdivision one of section sixty-six of the general construc-tion ir.w and a special district as defined in subdivision sixteen of section one hundred 'two of the real property tax law.
d.
" Commission" moans the disaster preparedncss commission created pursuont to section twenty-one of this article.
" emergency services organization" means a public or pri-e,vate agency, organization or group organized and functioning for the purpose of groviding fire, medical, ambulance, rescue food or ot aer services directed toward relieving housing,ffering, injury or loss of life 'or damage to property human su as a result of an~ emergency, including non-profit and govern-mentally-supporte,d organizations, but excluding governmental agencies.
f.
" chief executive" meane:
(1) a county executive or manager of a county (2) in a county not having a county executive or manager, the chairman or.other presiding officer of the county legislative body a mayor of a city or.'illage, except where a city or vil-(3) v (4)ge has a manager, it shall mean such managers anda supervisor.of a la manager, it shall mean such manager.
16 -
^
N m.-___-_CD
__ U
l
~
This Section states general STATE policies including the proposi-tion that " local government and emorgency service organizations continue
' their essentini role as the first line of defense in times of disaster" and that the STATE shall provide appropriate supportive services to the extent nocausury.
This policy statement, contrary to LILCO's assertions, does not explicitly or implicitly authorize private. corporations to exercise police powers in the event of a nuelear accident.
Section 20-1(a) acknowledges the role of private groups called "cmorgency service orEenizations in providing :eervices directed toward relieving human suffering, injury or less of life'or damage to property" such as fire, medical, ambulance, food, housing and similar.rescure eer-v i~co u.
These private emergency service organiz.ations have not.been dele-gated-in any way, shape, manner or form to the governmental functionr which the PLAN contemplates.
The Legislaturo, if it intended to delegate the broad-scale pcwers LILCO claims, would have done so in clear explicit language in the substantive portions of Article 2B which presently only confer these pouers upon state and local governments.
CONCT.USTON Thuse declaratory actions which arise out of LILCO's attempt to secure approval of its utility sponservd pl.AN clearly present a justi-ciabic controversy and the comple'ince do state a cause of action.
The limited issue of LILCO's authority to implement -its PLAN under the laus of the State of New York does not involve nay disputed questions of fact.
LILCO, as previously mentioned, intends to execute the PT.AN
- solely with ics own employees. and intends to carry out activities which are inherently governmental in nature.. These powers have been solely con-ferred 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 implied, do not include the right to exercise goverhmental functions.
Thure is a paradox.which is present in this controversy and involves the philosophy of the creation of our government.
In order to recognize this paradox, one must examine the philsophy of our founding fathers in creating our government.
The political ideas behind the Declaration of Independence and the Co:istitution were not the sole inventions of the founding fathere.
Franklin, Jefferson, Madison and other colonial leaders were learned and widely read men, steeped in the ideas of the English political phumophers.
The most influential of these philosophers upon the founding fathers was John 1.ocke (See Clinton Rossiter, "1787:
The Grand Convention",
(MacMillan, 19661).
Locke, an avid opponent of the divine right theory of government, put forth his ideas about the creation, pu.rpose and oowers of government in his " Treatise of Civil Government" written in 1639.
His ideas, for the purpose of this discussion, may be summarized as follows: _ _
1.
Individuals originally existed in a ecot.o of nat.uru, lhich individual had the right to do whatsoever was necessary for his
- prusorvation and the right to ptnish those who committnd crimos against the laws of nature.
Locke called these rights the "supremo power".
2.
The weak were at the mercy of the strong in the sto.e of naturo.
Each individual, because of the situation, entered into a
" social contract" with every other individual and this social ceatract resulted.in the creation of a civ11 society or community.
Thu "nupreme
~
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 surrander the " supreme power but merely entrusts it to government.
4.
The powers of government are limited.
Government is acc6unt 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 to change r,overnmnnts by means of a free election for Locke's right of revolution).
What is the paradox?
The STATE and COUNTY would be branching their " fiduciary" duty to protect the welfarc of its citizens if thuy permitted a privutu corpora-tion to uuurp the police powers which worc entrustad solely to them by thu come. unity.
LILCO has to realize that this is a government of law nnd not of men or private corporations (Sec John Adams "Draf t Massa chusotts
~
Congitution, nuclaration of Rights, ART XXX(1779)." -
On the othcr hand, the STATE and COUNTY maintnin that they
. c.Norcised their police powers in order to protect the community in their dotermination not to adopt or implement any emurgency plan for Shoreham because of the " impossibility" to have a " safe evacuation" in case of a nuclear accident.
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 citizens 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 Logos, Sed Leges Supra Principcm" (The Prince is not above the Laws, but the Laws above the Prince, Pliny the Younger, " Panegyric of Trajan" sec. 65 100 A.D. ).
Thore is no need to resort to a revolution or the usurpation of governmental powers by LILCO if there has in fact been a breach of a trust by the STATE and COUNTY.
LILCO can test this matter in another tribunal b'y commencing an action in the narbre of a urit of mandamus or in the aren, of public opinion which manifests itscif by the results of an election.
Sattic judgmont on notice.
^
J.S.C. -.
s.
UNITED STATES OF AMERICA
..-NUCLEAR REGULATORY COMMISSION Before the Commissiob
)
In the Matter'of
)
)
1 50 322-OL-4 LONG ISLAND LIGHTING COMPANY
)
Docket No.
)
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 Boar.d Long Island Lighting Company U.S. Nuclear Regulatory Co,mmission 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. 9 P.O. Box X, Building 3500 Special Counsel to the Oak Ridge, Tennessee 37830 Governor 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, Es'q.i 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 L
2-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.
Suf folk 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.
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, Ldtham and Shea 1717 H Street, N.W.*
33 West Second Street Washington, D.C.
20555 Riverhead, New York
- 11901,
~.
A
. }
~' _ _
lJ (' O Karla J. Letsch F "~
.KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 By Hand Washington, D.C.
20036
.)
By Federal Express DATE:
March 4, 1985
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