ML20125B229
| ML20125B229 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/10/1985 |
| From: | Lanpher L KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#285-351 OL-4, NUDOCS 8506110352 | |
| Download: ML20125B229 (35) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission ggggg 777, US!4RC In the Matter of
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Xbftfg hfgh['
LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL
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(Low Power)
BRANCH (Shoreham Nuclear Power Station) )
)
SUFFOLK COUNTY MOTION FOR POSTPONEMENT OF NRC JUNE 11 MEETING The Commission has scheduled a meeting for 4:00 p.m.,
June 11, to discuss and possibly vote on a Phase III/IV low power license for Shoreham.
Suffolk County hereby moves that the meeting be postponed for the following reasons:
1.
-The Suffolk County Attorney on June 4 represented to the Commission, inter alia, that the County's position on emergency planning had changed, that because of this changed position there is nothing left of the pending NEPA issue, and that the County Attorney, not Kirkpatrick & Lockhart, would hereafter represent the County before the Commission.
The Commission should not rely upon the foregoing representations of the County Attorney.
Rather, based upon the June 3 letter from the County Legislature previously submitted to the Commission as an attachment to the County's June 3 Motion for Postponement of Oral. Argument, and further based upon the legal 8506110352 850610 PDR ADOCK 05000322 9
opinion of counsel retained by Kirkpatrick & Lockhart for advice on this matter, (the opinion of Arnold & Porter is enclosed as
' hereto), it is submitted that:
a).The County Executive's May 30 Executive Order is unlawful and, accordingly, the County position on emergency planning has not changed; b).There is no basis to believe that there ever will be an implementable offsite emergency plan for Shoreham and, thus, the NEPA issue has not been diminished in any way, let alone eliminated, from the County's case; and c) Kirkpatrick & Lockhart was not lawfully terminated and, thus, pursuant to pertinent ethical obligations, will continue to represent Suffolk County, at least pending a resolution of the conflict between the present County Executive's Order and the Resolutions of Suffolk County.
- 2.
The NRC should refrain from any licensing action pertaining to Shoreham until the present conflict within the Suffolk County' government has been ruled upon by the New York State Supreme. Court.
Suits have already been filed and a preliminary
' injunction hearing is scheduled to be held today.
See Letter from Stephen B. Latham to NRC Commissioners, June 9, 1985, which
-describes the status of these actions.
There is every reason to believe that a ruling will be rendered soon, particularly since only legal issues are presented.
The County was severely prejudiced by its inability on June 4
'to have legal counsel present its position on the Phase III/IV license issue.
Indeed, not only was the County position not n
represented, but the County Attorney attempted to disavow critical positions that the County has consistently advocated for more than two years.
LILCO will not be prejudiced by the postponement requested herein. Indeed, LILCO itself stated at the Commission's June 4 oral argument that it will take at least 3 weeks for LILCO to implement promised security changes.*
(This also assumes, arguendo, that the County Executive was authorized to enter into th-security settlement with LILCO.)
Further, even assuming that the County Executive's new emergency planning position were dee'med legal, FEMA has been reported making the estimate that an exercise of the LILCO plan, could not occur before late 1985 or early 1986.
Therefore, there is no justifiable reason for the Commission to rush the vote on a Shoreham Phase III/IV license in advance of State Court resolution of the present conflict within suffolk County government.
Respectfully submitted,
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Hdrbert H.
Brown, E(quire Lawrence Coe Lanpher, Esquire Karla J. Letsche, Esquire KIRKPATRICK & LOCKHART 8th Floor, 1900 M Street, N.W.
Washington, D.C.
20036 Attorneys for Suffolk County
- Even if the NRC were to authorize a Phase III/IV license, the 3 weeks required for security changes would make it reasonable for the NRC to stay the effectiveness of the license for at least 3 weeks to give time for Court of Appeals review.
e rr ARNOLD
& PORTER cant:"amropo" ~
1200 N EW HAM PSHIR E AVCNUE, N. W.
1700 uNeoLN s7mstt tsLicopica:(aoa) era.orno WASHINGTON, D. C. 2oo36 ocNven.coLonaco soaos tatex: so.a723 (aos) ses.eoco (202) 872 6700 BIUCE L. MONTGOMERY
' OCCCT UNC: (202) 472*GS79 June 9, 1985 Kirkpatrick~& Lockhart
-1900 M Street, N.W.
Washington, D.C.
20036 Attn:. Herbert.H. Brown, Esquire Lawrence Coe I.anpher, Esquire Gentlemen:
In connection with your representation of Suffolk County, a municipal corporation of the State of New York, in proceedings pending before the Nuclear Regula-tory Commission (the "NRC") relating to'the licensing of the Shoreham Nuclear Power Station, Shoreham, New York
("Shoreham"), you have asked us.for our opinion with respect to the applicable standards governing certain aspects of your. future professional conduct and with
. respect'to the legality of certain actions taken by Suffolk County's current County Executive, Peter F.
Cohalan -("Cohalan").
===.
Background===
The Suffolk County Legislature (the " Legislature")
has duly enacted four resolutions (together, the "Reso-lutions") setting forth the policies of Suffolk County
- with respect.to Shoreham.
Copies of these Resolutions are attached hereto as Appendix A.
In Resolution No. 43-1982, the Legislature author-ized the'Suffolk County Executive (the " County Executive")
to retain legal counsel to assist the Suffolk County Attorney in represanting Suffolk County in the Shoreham proceedings.
Pursuant to that resolution, Cohalan, on behalf of Suffolk County, retained Kirkpatrick & Lock-hart (then Kirkpatrick, Lockhart, Hill, Christopher &
Phillips).
The parties to the retainer agreement (the
" Agreement") were the. County of Suffolk and Kirkpatrick
& Lockhart.
A copy of the Agreement is attached hereto as Appendix B.
1 m
ARNOLD & PORTER Kirkpatrick & Lockhart June 9, 1985 Page Two In Resolution 262-1982, the Legislature resolved that the Suffolk County Planning Department should prepare a County Radiological Emergency Response Plan; that such plan (the " Plan") would not be operable or capable of being implemented until approved by the Legislature; and that the Plan was not to be submitted to the NRC or the Federal Emergency Management Agency until so approved.
In Resolution 456-1982, the Legislature resolved, inter alia, that Suffolk County "shall not assign' funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been approved, after public hear-ings, by the Suffolk County Legislature and the County Executive."
In Resolution 111-1983, the Legislature resolved, inter alia, that the plan, as amended, submitted on October 6, 1982, by Long Island Lighting Company ("LILCO")
to the New York State Disaster Preparedness Commission
("DPC") "will not be approved and will not be imple-mented"; that "no local radiological emergency plan for a serious nuclear accident at Shoreham will protect the health, welfare, and safety of Suffolk County residents";
that therefore "no local radiological emergency plan for response to an accident at the Shoreham plant shall be adopted or implemented"; and that "the County Executive is hereby directed to take all actions necessary to assure that actions taken by any other governmental agency, be it State or Federal, are consistent with the decisions mandated by this Resolution."
You have informed us that each of the Resolutions was adopted by a majority of the Legislature, was approved by the County Executive, and has never been repealed.
Until recently, the County Executive was in full accord with the position set forth in the Resolutions.
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ARNOLD & PORTER
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Kirkpatrick & Lockhart j
June 9, 1985 Page Three on May 30, 1985, Cohalan announced that he was reversing his position on the Shoreham plant and that he now favors its operation, provided there is a suc-cessful test of LILCO's emergency plan.
On May 30, 1985, Cohalan issued Executive Order 1-1985 directing County personnel to review, evaluate and test LILCO's proposed emergency response plan.
A copy of Executive Order 1-1985 is attached hereto as Appendix C.
On May 31, Cohalan orally requested Kirkpatrick
& Lockhart to remain as counsel for the County to represent the County in accordance with his new views.
Kirkpatrick & Lockhart replied that it could not repre-sent his new views but could continue to represent the County if the prior County position (as reflected in the County resolutions) were to constitute the County policy.
On June 3, 1985, Mr. Cohalan sent a letter (the " Termination Letter")' to Kirkpatrick & Lockhart purportedly terminating its representation of the County because the firm refused to represent the County Executive's new position.
A copy of that letter is attached hereto as Appendix D.
Issues Requested to be Addressed You have requested our opinion with respect to the fc11owing issues:
1.
Under applicable rules governing the profes-sional conduct of Kirkpatrick & Lockhart:
(a) whether Kirkpatrick & Lockhart may properly refuse to turn over the files in Kirkpatrick & Lock-hart's possession pertaining to'its representation of Suffolk County as has been requested in the Termination Letter.
(This issue is sometimes hereinafter referred to. as " Issue 1(a) ". ).
(b) if the NRC grants a low power licease for operation of the Shoreham Nuclear Power Plant and the County Attorney refuses to or otherwise does not take action on behalf of Suffolk County to seek a stay of that grant or the implementation of the license, whether
ARNOLD & PORTER Kirkpatrick & Lockhart June 9, 1985 Page Four Kirkpatrick & Lockhart may, and under what circumstances it may, properly take action seeking such a stay on behalf of Suffolk County.
Specifically, you have asked
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us to consider whether Kirkpatrick & Lockhart may file an application and a brief on behalf of Suffolk County seeking a stay of an NRC grant or implementation of the license (i) on the merits of issues underlying the grant of the license or (ii) until the internal conflicts within the Suffolk County government are resolved.
(This issue is sometimes hereinafter referred to as
" Issue 1(b) ". )
2.
Whether, under New York law, the actions of the County Executive in issuing Executive Order 1-1985 were lawful.
(This issue is sometimes hereinafter referred to as " Issue 2".)
Qualifications and Assumptions We have made such investigation of law, public records and other matters as we have deemed necessary to enable us to render the opinions set forth herein.
We have, with respect to all documents which we have examined and upon which we have relied, assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conform-
.ity to original documents of all documents submitted to us as certified or photostatic copies and the authen-ticity of the' originals of such latter documents.
We have further assumed the compliance of the adoption of the Resolutions with applicable procedural require-ments.
The opinions expressed herein are further qual-
.ified by the fact that we are not, and the attorneys who assisted in the preparation of this opinion are not authorized to-practice law in the State of New York and are.therefore not' specialists in the interpretation of the laws of the State of New York.
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ARNOLD & PORTER Kirkpatrick & Lockhart June 9, 1985 Page Five Please note that we are opining only as to matters expressly set forth herein, and no opinion should be inferred as to any other matters.
The opinions expressed herein are specifically limited to and by the facts as set forth above.
Any change of facts or the applicability of additional facts and circumstances would have a material bearing on the opinions set forth herein, and we therefore express no opinion on matters resulting from any such change or additional facts and circumstances.
You should be aware that a number of questions raised by the matters discussed herein have not been definitively answered by statute, regulation, rulings or court decisions.
Moreover, with respect to some of such matters, existing precedents provide little guidance. While our opinions and views expressed herein are based upon our best interpretations of existing sources of law and express what we believe applicable authorities would conclude if presented with these issues, no assurance can be given that such inter-pretations would be followed if they became the subject of judicial or administrative proceedings.
Applicable Ethical Principles and Laws We offer no opinion whether the disciplinary authorities with jurisdiction over Kirkpatrick &
Lockhart's professional conduct will be those of New York or Washington, District of Columbia.
Kirkpatrick
& Lockhart is clearly subject to the jurisdiction of the District of Columbia Bar Association.
In addition, New York bar authorities will have jurisdiction to the extent that Kirkpatrick & Lockhart lawyers are admitted to practice in New York State or have entered appearances before New York courts or otherwisc have submitted themselves to regulation by the New York State bar disciplinary authorities.
n ARNOLD & PORTER Kirkpatrick & Lockhart June 9, 1985
~Page Six In addition, we offer no opinion concerning which jurisdiction's disciplinary and ethical rules would be applied by authorities exercising jurisdiction over the professional conduct of Kirkpatrick & Lockhart.
For example, we understand that the District of Columbia bar disciplinary authorities look to the ethical rules of the jurisdiction to which the actions at issue bear a " substantial relation."
In the instant case, such a test would appear to point to the applicability of New York disciplinary rules by the District of Columbia disciplinary authorities, but we can offer no conclusive opinion on that issue.
Similar, but not identical versions of the American Bar Association Code of Professional Respon-sibility (the " Code") have been adopted by the appro-priate authorities with jurisdiction over the bar of the State of New York and Washington, D.C.
You have been provided with copies of both versions of the Code.
In all respects pertinent to this opinion, the Code adopted by the two jurisdictions is the same.
The Code will govern the professional standards applicable to the conduct of Kirkpatrick & Lockhart.
The Code is comprised of " Canons", " Ethical Consider-ations" and " Disciplinary Rules."
The functions of the Canons, the Ethical Consid-erations and the Disciplinary Rules are discussed in the Preliminary Statement of the Code which states that:
"The Canons are statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession.
They embody the general concepts from which the Ethical Considera-tions and the Disciplinary Rules are derived.
ARNOLD & PORTER Kirkpatrick & Lockhart June 9, 1985 Page Seven "The Ethical Considerations are aspira-tional in character and represent the objec-tives toward which every member of the profession should strive.
They constitute a body of principles upon which the lawyer can rely for guidance in many specific situ-ations.
"The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in character.
The Disciplinary Rules state the minimum level of conduct below which no law-yer can fall without being subject to discip-linary action.... An enforcing agency, in applying the Disciplinary Rules, may find interpretive guidance in the basic principles embodied in the Canons and in the objectives reflected in the Ethical Considerations."
We have not relied upon the authority, whether persuasive or mandatory, of the American Bar Associ-ation's Model Rules of Professional Conduct (the "Model Rules") adopted by the House of Delegates of the Amer-ican Bar Association on August 6, 1983.
To date, the Model Rules have been adopted by only a few jurisdic-tions,,but have not been adopted in New York or Washing-
- ton, D.C.
To the extent the Model Rules are relevant in evaluating the conduct of Kirkpatrick & Lockhart, Rule 1.13 and the comments thereto appear pertinent, and they are attached hereto as Appendix E.
Issue 1(a) and Issue 1(b)
Discussion We believe that a determination with respect to Issue 1(a) and Issue 1(b) requires determination of,the following additional questions:
1.
Who is the client represented by Kirkpatrick
& Lockhart?
2.
Did the purported termination of Kirkpatrick
& Lockhart's employment by the Termination Letter lawfully terminate that employment?
ARNOLD & PORTER Kirkpatrick & Lockhart June 9, 1985 Page Eight
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Who Is Kirkpatrick & Lockhart's Client?
With respect to whom Kirkpatrick & Lockhart represents, it is our opinion that under New York law, Suffolk County is Kirkpatrick & Lockhart's client, not the County Executive or the County Attorney.
Under New York law, the identity of a client in situations where the attorney deals with both an organizational entity such as a governmental bod'; or a corporation and its constituents (e.g.,
its officers) is a question of fact.
See Evans v7 Artek Systems Corporation, 715 F.2d 788, 794 (2d Cir. 1983 ) (corporation).
Although New York law recognizes that an attorney may simultaneously represent both an entity and the constituents of that entity, see opinion 80-45 of the Committee of Profes-sional Ethics of the Association of the Bar of the City of New York ("The test [of whether the corporation or the individual officer is the client) is whether this former officer reasonably understood that he was also a client of the law firm and whether his relationship was one in which confidences imparted by the officer would be protected."), on the facts set forth above, it seems clear that Kirkpatrick & Lockhart's client was Suffolk County.
The Agreement was authorized by the Suffolk County legislature, the governing body of Suffolk County.
The Agreement clearly identifies suffolk County as the entity to which the duties of Kirkpatrick
& Lockhart run.
The Agreement states that the Agreement is being entered into to carry out the provisions and intent of Resolution 43-1982, i.e.,
to assist the County Attorney with the presentation of the County's intervention in the Shoreham licensing proceedings.
Finally, the County Executive clearly signed on behalf of the County.
By his actions throughout the period of Kirkpatrick
& Lockhart's employment, the County Executive, as well as all other parties, believed Suffolk County was the sole client of Kir patrick & Lockhart.
The Termination Letter clearly reccynizes that Cohalan understood that the client was the County.
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ARNOLD & PORTER l
Kirkpatrick & Lockhart June 9, 1985 Page Nine 1
i Therefore, we conclude that Suffolk County, and i
only Suffolk County, was Kirkpatrick & Lockhart's client.
Was The Termination of Employment Proper?
Whether the Termination Letter's purported termination of Kirkpatrick & Lockhart was lawful depends on whether the County Executive had either inherent authority to fire Kirkpatrick & Lockhart or i
had been granted that authority by the County Leg-islature.
We have seen no pertinent precedent on the inherent authority of a County Executive to fire coun-sel, the retention of which was authorized by the County Legislature.
However, we note that the scope of a county officer's duties and authority are defined by
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legislative grant, see e.g., Village of Ft. Edward v.
Fish, 156 N.Y.
363,~3T N.E. 973, 975 (1898), and that i
the relevant granting document, Suffolk County Charter, provides no such right to fire.*/
We also note with respect to the retention of counsel that the prevailing rule is that the power to employ counsel by a municipal officer is not incidental to the powers of the officer, (see Weinstock v. Long, 29 Misc.2d 795, 214 N.Y.S.2d TFT7 597 (1961) (town officials), and that express authority, by resolution of the governing body, is necessary to justify the retention of an attorney by a municipal officer.
Id. ; See Cohn v. Town of Huntington, 2 9 N.Y. 2d 4 51, 3 2 8 NW. S.W67TT197 2).
In the somewhat analogous situation of creation of offices by the County Legislature, the applicable general principle is that repeal or modification of a statute requires a legislative act of equal dignity and s;
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But note Section 303 (d), granting the right of
" general supervision over all administrative units of the county, except as otherwise provided in this charter."
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r ARNOLD & PORTER Kirkpatrick & Lockhart i
June 9, 1985 Page Ten import and not solely action of the executive.
See Gallagher v. Regan, 42 N.Y.2d 230, 397 N.Y.S.2d 7TT, 716, 366 N.E.2d 804 (1977), and see Henry v. Noto, 424 N.Y.S.2d 506, 508, 74 A.D.26 604 (1980).
Based upon existing New York precedent, we believe that the Suffolk County Executive had no in-herent authority to fire Kirkpatrick & Lockhart.
We also believe the County Legislature did not grant to the County Executive the authority to fire Kirkpatrick & Lockhart.
The question of the scope of the authority granted to the County Executive appears to be one of fact.
See Lindlots Realty Corporation v.
Suffolk County, 278 N.Y.
45, 15 N.E.2d 393, 395 (1938).
In terms of retaining and discharging Kirkpatrick &
Lockhart, the County Executive was the age'ht of the County Legislature.
Although there appears to be no pertinent New York precedent, the general principle applicable in agency situations is that an agent specifically authorized to employ attorneys to act in specific matters does not have power to discharge those whom he has engaged, unless the language authorizing the engagement permits the agent to undertake other acts essential to the enforcement of the claim of the principal or some other language exists which is sufficiently extensive to permit the discharge.
2A C.J.S.
S 180 at p. 894.
It is our opinion that Reso-lution 43-1982 authorizing the County Legislature to retain Kirkpatrick & Lockhart contains no such language.
Although a county executive is entitled to reasonable discretion in implementing legislative commands, Henry v. Noto, 424 N.Y.S.2d 506, 508, 74 A.D.2d 604 (1980) and is granted supervisory rights and duties under Section 303 (d) of the suffolk County Charter, any decision by Suffolk County to fire counsel, originally employed by reason of a legislative resolu-tion, properly belongs to the policy making, appropri-ating, governmental body, the County Legislature.
See N.Y. County Law S 153 (1) ("A power of a county shall, except as otherwise expressly provided, be exercised through a local law or resolution duly adopted by the board"); Weinstock v. Long, 214 N.Y.S.2d 593, 597 (1961)
ARNOLD & PORTER Kirkpatrick & Lockhart June 9, 1985 Page Eleven (town board, not town officials, has right to employ counsel) and cases cited therein.
The right to dis-charge counsel properly rested with the County and was properly exercisable by the County Legislature, not the County Executive.
South Buffalo Terminals, Inc. v.
Grobe, 148 Misc. 646, 266 N.Y.S.
119 (1932), aff'd 239 A.D.
881, 266 N.Y.S. 127.
Finally, even if the County Executive generally had the right to fire counsel, which we have concluded he does not have, it is not clear that the right was l
properly exercised here.
If, as we conclude below, the County Executive's actions in promulgating Executive Order 1-1985 were unlawful and if the dismissal was intertwined with and an essential part of those unlawful actions, the dismissal of Kirkpatrick & Lockhart was also unlawful for that additional reason.
Conclusions Issue 1(a)
We have concluded that suffolk County, not the County Executive or the County Legislature, is Kirkpatrick
& Lockhart's client and that the County Executive has acted beyond the scope of his authority in authorizing the testing and implementation of the Plan and in purporting to terminate Kirkpatrick & Lockhart's employ-ment.
Based upon these conclusions, and because the unauthorized act of a municipal official is not binding on a municipal corporation, see e.g.,
Lindlots Realty Corporation v. Suffolk County, 278 N. Y. 45, 15 N.E.2d 393, 395 (1938) we are of the opinion that neither DR 2-110 (B) (4 ) of the D.C. Codo nor DR 2-110 (B) (4) of the New York Code require the withdrawal of Kirkpatrick &
Lockhart as counsel for Suffolk County.
- Further, neither DR 2-110 (A) (2) of the D.C. Code, DR. 2-110 ( A) ( 2 )
of the New York Code nor any other provision of the D.C. Code or the New York Code require return of client papers pursuant to the request of the County Executive and the County Attorney, nor would the failure to so return subject Kirkpatrick & Lockhart to discipline.
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ARNOLD 8: P O R *r E R Y
3 Kirkpatrick & Lockhart June 9, 1985 i
Page Twelve j
c It should be further noted that EC 5-18 is instructive as to how Kirkpatrick & Lockhart should i
function in the present situation.
EC 5-18 states:
"A lawyer employed or retained by a corporation or similar entity owes his allegiance to the entity and not to a 1
officer or other person con-i nected with the entity.
In advising the
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entity, a lawyer should keep paramount n
its interests and his professional judg-2 ment should not be influenced by the per-4 sonal desires of any person or organization."
Therefore, Kirkpatrick & Lockhart is obligated, in the exercise of its independent professional judg-ment, on behalf of Suffolk County, and in the best L
interests of Suffolk County to itself determine whether return of its client's files to the County Attorney is
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appropriate.
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To the extent the ABA Model Rules of Professional Conduct (the "Model Rules") are relevant, Model Rule 1.13 (a) and comments thereto clearly indicate that suffolk County, as a governmental organization, is Kirkpatrick &
r Lockhart's client and that only the activities of its duly authorized constituents are actions of the client which should be obeyed.
Assuming that, based upon the conclusions set forth above, Kirkpatrick & Lockhart "knows"*/ that the County Executive has acted in a manner which is a violation of a legal obligation to Suffolk County, and further assuming that Kirkpatrick g
& Lockhart "knows" that the County Executive's action g
is likely to result in substantial injury to Suffolk County, then Rule 1.13 (b) requires Kirkpatrick & Lock-hart to proceed as is reasonably necessary "in the best interests of the organization."
Rule 1.13 (b) also sets
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"Knows", as defined in the Preamble to the Model 1
Rules, " denotes actual knowledge of the fact in question.
A
=i person's knowledge may be derived from circumstances."
_(
w 2
e
ARNOLD & PORTER Kirkpatrick & Lockhart June 9, 1985 Page Thirteen forth the relevant standards and considerations which would govern Kirkpatrick & Lockhart's conduct.
Provided that due consideration was given to those factors, we believe, under Rule 1.13, that Kirkpatrick & Lockhart could properly refuse to give the files to the County Executive.
Issue 1(b)
Assuming that the County Attorney's failure or refusal to seek a stay of an NRC grant of a license to i
operate the Shoreham Nuclear Power Plan is based upon instructions of the County Executive, which in turn are illegal because they derive from Executive Order 1-1985 and the failure to follow faithfully resolutions passed by the County Legislature, we are of the opinion that nothing in.the D.C. Code or the New York Code would prevent Kirkpatrick & Lockhart,from, or subject Kirk-patrick & Lockhart to discipline for, seeking a stay on behalf of the County based upon the merits of the action of the NRC or seeking a stay pending clari-fication of the dispute between the County Legislature and County Executive.
In such event, Suffolk County, and not the County Attorney or the County Executive, remains Kirkpatrick & Lockhart's client, and as noted above, EC 5-18 provides that Kirkpatrick & Lockhart should keep paramount the County's interests and not the personal desires of any other person or organiza-tion.
We note that Kirkpatrick & Lockhart would be
[
obligated to conform to DR 7-101A(1), which provides:
"A.
A lawyer shall not intentionally:
l 1.
Fail to seek the lawful objectives of his client through reasonably avail-able means permitted by law and the Disciplinary Rules.
To the extent the Model Rules are relevant, assuming that Kirkpatrick & Lockhart "knows" that the County Attorney's action in failing to file a brief was
ARNOLD & PORTER Kirkpatrick & Lockhart June 9, 1985 Page Fourteen a violation of a legal obligation to Suffolk County, and further assuming that Kirkpatrick & Lockhart "Knows" that the County Attorney's action is likely to result in substantial injury to Suffolk County, Rule 1.13 (b) again counsels Kirkpatrick & Lockhart to proceed as is " reasonably necessary" in the best interests of Suffolk County.
Provided that due consideration was given to those factors, we believe, under Rule 1.13, that Kirkpatrick &
Lockhart could properly seek a stay and file a supporting brief on behalf of the County.
Under Rule 1.13, it would also be appropriate, and perhaps desirable, for Kirkpatrick & Lockhart in the future to take the steps specifically set forth in Rule 1.13 (b) :
(1) ask the County Attorney and County Executive for reconsideration of the matter; (2) advise Suffolk County that a separate legal opinion on the matter be sought for presentation to the County Legislature and perhaps the County Attorney and County Executive; (3) refer the matter to higher authority, probably the County Legislature.
Issue 2 Discussion Executive Order 1-1985 states that Executive Law, Article 2B and Suffolk County Charter S 302 give the
)
County Executive the authority to order on behalf of Suffolk County the actions set forth therein, i.e.,
that Suffolk County police and planning personneT to
" carry out and cause to be conducted a test and exer-cise" of LILCO's emergency evacuation plan.
It should be noted at the outset that Executive Order 1-1985 directly conflicts with Resolution 456-1982 which provides that Suffolk County "shall not assign funds or personnel to test or implement any radiological emergency response plan" for Shoreham unless the plan has been approved by the suffolk County Legislature and the County Executive.
Resolution 111-1983 provides that the LILCO plan "will not be approved and will not be implemented.
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ARNOLD & PORTER Kirkpatrick & Lockhart June 9, 1985 Page Fifteen The Suffolk County Charter (the " Charter") estab-lishes the duties and functions of the County Executive.
In pertinent part, the Charter provides:
"Section 303.
Function of county executive.
In addition to the functions assigned to the county executive in other provisions
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of this charter, the county executive shall:
(d) take care that all laws applicable to the county and that all laws and resolutions of the County are faith-rully executed."
(emphasis added)
See also N.Y. Const.
Art. IV, S3 (same duty applied to state executive branch)..
Under relevant New York precedent, it is unlawful for the executive branch of the government to override policy declarations of the legislative branch.
Where the executive takes unauthorized action inconsistent with duly authorized legislative enactments, the actions of the executive are unlawful because they exceed the executive powers and are an improper exercise of the legislative function.
County of oneida v. Berle, 49 N.Y.2d 515, 427 N.Y.S.2d 407, 411-412, 404 N.E.2d 133 (1980) (Executive Order of Governor impounding funds appropriated by the State Legislature'was unlawful);
Subcontractors Trade Association v. Koch, 62 N.Y.2d 422, 477 N.Y.S.2d 120, 124, 465 N.E.2d 840 (1984)
(Mayor's executive order mandating share of construc-tion contracts awarded by city be given to local enterprises was beyond mayor's executive function and was unlawful usurpation of legislative funct, ion) ;
Matter of Fullilove v. Beame, 48 N.Y.2d 376, 423 N.Y.S.2d 144, 145, 398 N.E.2d 765 (1979) (Mayor 's affirmative action regulation was unlawful in absence of legislative authorization); Broidrick v.
Lindsay, 39 N.Y.2d 641, 385 N.Y.S.2d 265, 268, 350 N.E.2d 595 (1976) (Mayor's affirmative action regulations were invalid because, inter alia, there was no legislative authorization and
- ecause they were inconsistent with applicable state statute).
Although Section 304 of the County Charter permits the County Legislature to delegate to the County Executive the powers and duties of the County Legisla-ture, we are aware of no legislative authorization (state or local) for Executive Order 1-1985.
ARNOLD & PORTER Kirkpatrick & Lockhart June 9, 1985 Page Sixteen The language of the Resolutions is unambiguous and does not confer the discretion on the County Execu-tive to issue Executive Order 1-1985 or the actions authorized therein.
See County of Oneida v. Berle, 49 N.Y.2d 515, 4 27 N. Y. S7ZE 4 0 7 at 412, 404 N.E.2d 133 (1980). Nor is the County Executive compelled by Article 2B'or otherwise to test or implement the LILCO plan; therefore, there can be no corresponding power to perform the non-existent duty.
See County of Oneida v. Berle, 49 N.Y.2d 515, 427 N.Y.S.2d 407 at 410-411, 404 N.E.2d 133 (1980).
Section 20 (1) (b) of Article 2B of the Emergency Preparedness Law (Executive Law S 20 et seq.) does state:
(1)
It shall be the policy of the state that (b) local chief executives take an active and personal role in the development and implementation of disaster pre-paredness programs and be vested with the authority and responsibility to insure the success of such programs;"
However, in Section 23 of Article 2B the authority to develop, disaster preparedness, plans is granted to the
" County", not the chief executive of the county.
Articla 2B nowhere gives the chief executive of a county the authority to test and implement plans not approved by the legislature. Furthermore, Article 2B nowhere explicitly takes the extraordinary action of altering existing govern-mental relations.
Rather, its structure seems to provide for the development and implementation of emergency preparedness plans within existing frameworks, and recognizes and distinguishes between the County, the County Legislature and the chief executive of a county.
The policy of active involvement and authority to insure the success of such programs seems a restatement of the general authority of the executive branch to implement laws properly passed by the legislative branch.
Only in specific, narrow carefully set forth circumstances (e.g.,
Section 24, the right to declare a state of emergency) is the normal governmental structure altered.
The extraordinary power to unilaterally test and implement plans directly contrary to duly enacted law is nowhere granted.
ARNOLD & PORTER Kirkpatrick & Lockhart June 9, 1985 Page Seventeen While there appears to be no pertinent precedent interpreting the provision, Article 2B as a whole con-templates that the responsibility for preparation and implementation of emergency disaster plans and programs should be shared by the state and local governments within the usual govermnental channels.
We conclude that Article 2B does not validate Executive Order 1-1985.
See County of oneida v. Berle, 49 N.Y.2d 515, 427 N.Y.S.2d 407, 411 n.5, 404 N.E.2d 133 (1980).
Conclusion Based upon our conclusion that the issuance of Executive Order 1-1985 was not authorized by either state law (Article 2B), the Suffolk County Charter or the suffolk County Legislature and was un improper exercise.of legislative authority in direct conflict with existing suffolk County policy, we are of the opinion that such issuance was unlawful under New York
, law.
Very truly yours, ARNOLD & PORTER By:
BYuce L.
Montgomer Esquire /
Enclosures e
--w-
-m,,
- ro Res. No..'. 1132-82 Introoucec by tho Presiding Of ficer of the Request of the County Executive RESOLUTION NO. 43-1982, AUTHORIZING THE COUNTY EXECUTIVE TO ENTER INTO AGREEMENTS FOR THE INTERVENTION BY SUFFOLK COUNTY IN THE SHOREHAM NUCLEAR RECULATOKY COMMISSION LICENSING PROCEEDINGS, DOCKET NO. 50-322, AND TRANSFERRING, FUNDS FOR SUCH AGREEMENTS.
Whereas, the Suffolk County Legislature voted to intervene in the Nuclear Regulatory Commission (NRC) Operating License (0. L. ).
Proceedings before the Atomic Safety and Licensing Board (ASLB) as a nuetral intervenor in 1978; and
- Whereas, as an intervenor in the County has been participating in the licensing process of the Shoreham Nuclear Power Plant in order to as'sure the residents of Suffolk County that the plant is safe; and Whereas, the Suffolk County Legislature defeated fntro-ductory Resolution No. 2040-1981, by a vote of 12-5-1, proposing a Settlement Agreement between Suffolk County and the Long Island Lighting Company (LILCO) of the County's intervention in the O.L. proceedings; and Whereas, by voting to defeat Introductory Resolution No. 2040-1981, the Suf folk County Legislature proclaimed its intention to pursue a full physical inspection of the Shoreham Nuclear Power Plant, and committed itself to a full scale intervention in the Shoreham O.L. proceedings; and Whereas, in response to the Legislative Mandate contained in the legislative vote regarding the County's future inter-vention in the Shoreham O.L.
proceedings, the Suffolk County Attorney is committed to engaging in extensive effort to assure an effective intervention in the Shoreham O.L. proceedings on 4
behalf of the taxpayegsand ratepayers of Suffolk County; and
a Whereas, to present full-scale intervention in the Shoreham O.L. proceedings, the Suffolk County Executive will
~
hire nationally;.known technical engineering consultants and legal counsel to assist the County Attorney in the litigation proceedings; and Whereas, the transfer of funds to the Self Insurance Fund will be less than previously anticipated due to a reduction in the layoff of County personnel; now, therefore, be it RESOLVED, that the County Executive is hereby authorized to enter into contracts with the appropriate technical engineers and iegal counsel for said individuals or firms to assist the County Attorney in the, presentation'of the County's interv_ention v
in the Shoreham O.L.
proceedings; and be it further RESOLVED, that the Suffolk County Comptroller and the Suffolk County Treasurer be and.they hereby are authorized to transfer funds as follows:
From To Interfund Transfer Department of Law Transfer to Self Insurance Fund General Administration No. 01-9568-960 01-1420-456 Amount 5500,000 Dated:
February 9, 1982 Approved By:
/s/ Peter F. Cohalan, County Executive of Suffolk County O
S
(,
~
Int-o. Ras,ris. L254-32 Laid cn T.ablo 3 /3/ 3 2 ga t:cauc=:: my tha Prostding at the request of thw Csunny xacutivo ACICLOT*Ct !!C. 262 - L'23 2 CI AEC ::1G THE C0rtPTnCLLC.t AND COUNTT TACASURCA TO ACT ?!Q 31SQ,0GQ RCCCIVCD TMa L LCO Anc TAANSTERAI::C TUMOS Ili COUNCC7ICM WITM A/J2IO LOCICAI. AISPCt:5I PL.AN.
- gMIKEAS,
Msolution !!c.
894-1951 auth*:ri:ed an agree.cn h.a t.s e =T I. : *.C and tho'suf folk C un ty Ca of Planning 'er tne pr:paration of a C.:un ty r.'dialogscal emergency ::part= cat pcasa plan; and
- WHERIAS, under the ter=2 of the agrec
.nt, LILC3 has paid th e C un ty o f suf folk 31 0,0cu with an additional 395,000 cc: upon coupletaca of tan ccatrac 1 and b'HIRIAS, - special counsel fo r th e C vnty is the Shoreham cperating licensing proceedings has advised the Couitty that tt is i.n the te s t interes: of tAe County ts asold any appearance of a conflict of in t: r e s t by returni..g th e 3110,000 received frete. LILOC for the radiologit.;41 respcase plans ar.d k'draIAS,
it is the intentien of the County to ec=piste the radiclogical gospense plan at its own expenses now, therefore, De it RIS C L*.*ID,
tha t the C unty C. ptroller and C unty Treasttse: 4:e direc cd-to return $130,000 to LILO3: and be it f u.r:Ae r! !
- RESCLVI2, tha t the to cancel the unexpanded balanceC unty C=mperaller and C=unty Treasu.re a.re d.i.ro ce e d in the.f= Llowing esc.:.=.cesacast 01-8025-932 01-8c25-993 01-8025-904 sed be it further
- RISOLVID, tha t t.he C unty compt:clier and Csunty Treasure hereby are autAcrized to ::a.nsfer the in11 swing funds and authorisations-be, and they TRCH.
r=ployec Banalits Health Insurance 01-9063-835 3375,C00 c
Planning Radiological Aaspcase Plan (Cffice Supplies) 01-3026-301 10,0CQ Planning Radiological Response Plan ( Prin ting )
01-4025-3G4 13,030 Planning )
P.adicto-}ical Resg nse Plan (.w.is c. )
01-30 0-350 4c,cco eh
fC latre'. Aes 111/. * *.1 page 2 714.313; A:.*.1:!=g i=41 Re spons e Plan (Adv.)
c1 1025-377 1,0;;
Planni.ig 1*.dicLcgital Rast. nse Plan
(. stile ag e )
0L-4025-33 5,000 -
~
Planning P.-diclagical Aszp.snso Plan (Fees for se: rices (c:
aos-E=picyees 200,0:c
.nd t.a it fu.ther
- RISCLVI3, tha t the County F2.2nning' Ca pa r t.=e n t shall prepa:e 4 C:un ty T.tdiological E.:attgency Aas, anse Plan to s e rve ene interest o f :af ety, heale.a anc e;1 fare ci the :ssariants of suf fs L% C.sunty; and ba it fu:tha:
- RISCLVED, that said plan shall not be operable and 4 hall not be dec=ed edcqua t1e and capable of being tmple==ntad uncal such ti.se as it is app::ved h*v the Suffolk County Legislatures and
. RISCLVE3, tha t only after said plan is approved by the Suffolk C:unty Lagis14:ure, shall it he subsistad en the redersl Ice:gency itacag e..en t Aqcacy and the fluclear Re Cammission for purpo s e s of any findings, determi..ati:ns, :u11:ss, gulat=ry scviews, c: tears.ngs my auen rece:21 agenecas.
cA.*I: :
March 23. 1232-APPRC Ya f_ A z.s Cannsy,C.cecu: Ave a: 54-Is u c. sun:y Cata of App:cyal: 3[J.g / 7 2 SI FFOLX CouttTY I r. i. s. C,mst 4m,2. Willia m H. Racers. Clerk of the v
Cm nry "f,gisk.Nie Caunty 1.egislature of the Csunty of Sdfat's, have corag r:d I.!YCAHEAD. N. Y.
(cregning cnpy of resolution evith the original the this office. sad whi4h was duly adopted by the County lr? solution now o
~
C.sunty on h q) c /) Q f f r~r.I J a;:statur:otsad Lad that the same ss a true and currect tr:ascript the whole thereot.
almd resslwska :ad of
'9
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taal of the C4unty L.:;islature of the County of S (t lk"* ***
u a s
h-J -l *J t~.-
cea orn,,c m.ty tL,.,;,
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e 1
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gn en.! weed :
..gts14:ses 31ssa, 20sso. Toley, s.caca=;a, Cte se
.a.L enard s, *aaneen: erg; A1::c, Melan, dariton, not=, Mowers, Preep 'iv,ius, A*9.-.
O,vano,.7ta:44 La
.it3CL;;;;'t NC.
4$6 -1982. ESTA2L ::!!!:C Mg
- g,. gCLCC
- C.tL CMC.tCE.* ICY AC57C*tSZ 7f.l.u:i:NC pCL*CT CT T:15 C"U:ITY CT SU7TCLA w'xgAgA3, Csunty of Su f f= 1'4 has the pri=4ry responsihility
!=r the pest ctica of L:s residents 14 ene ovent of a g: Land LLqnting C:apany's Sharinan llucicar Pouar 5:radictog test e,ergency 4 gne ;;ng 4:: ns and
- uxgarAs, suffolk C:unty :skes this responsibility seri=usly and in : e n d s,
thr: ugh geod f4 Lea and scund planning uf fsets, to assure tha t.the b e s t pc ss amle.
entegency plan and ;c:p4radacss are develey:d to protect ceunty; and the citissas of suf folk WHEREAS. Suffolk Csunty's nation 411y recogni:=d experts drawn from aEmergency Planning Task Far=e, c=Mposed of.
range of pactinent disci;11:es, ts:
new c:ndac: tag a desatted planning effort in ceder to a ttamps to deve l=p a '
vi..hle radiological ecargency plan for suffolk C unty; and WHERIAS, The Lang Island Lighting Csep4ny, has gone beyond its powers as a pesvate corporatton in an attamptin an unwarrant
- act, the rightful powe rs of to usurp Suf folk County by submitting c=unty planning re sou rce maturi41 to the New York state the of ficial radiological emergency response plan for suffolk County; as
- RMERIAS, said planning resource material developed in part by c unty per==nnel, is preliminary data whien. tn no way constitutes
.typ rev ed AACICLCC: CAL the suffsik C:unty-ENCActNCY AESPCNSE* PLAM and Will no t in :na fut%2e consti:ute suca County piang and
- ITHEREA3, SuffcLk P LA:t C=unty will submit has L. tan fully prepared and approvedto the !!aw York State CLs4 ster Prepar tnat 014n by suffolk Csunty and with the planning efforts of bota *:LCC and trew York stacar therefore,is eneremy integra tec 34 1:
- RISCLVED, tha t su ff alk County hereby established the fcLl: wing' R. dialegical Emergency Response Planning Policy:
Suffsik ' County shall not assign funds or personnet to test or implement any radiological emergency re sponse plan for the Shorenam Nuclear Plant unless that plan has been fully developed to the be s t of the Csunty's amtli:y.
Outfolk C:unty shall not assign funds of pir==nnel to test or implement any radialegical emergency response plan for i
the Shorcham Muelcar Plant unle:s
~
that plan has bten tae subject of at 1 4sr two public heartags, one to me neld in R2ver-h=J d,..nd one es he held in Hauppauge.
1 4
--,l-
. ~.
(n
( tetx Caunty snet t not e s s lin'
(~
cr Nesonnel to test or tmpicnent any
'ragte109 teat emi r gney responso plan for tho cherensa Nuclear Plant untos.s that plan n.s s been approved, alese public he s : t r.1 s. by tac Sottotk County Legislature.
.s ad *..'. C.:uaty cxecutive end, tre Lt further
~
AISOLVt.
thy t c= pies of t.'*.12 resotutien he sen.
- s g3, g4 y,,,,,7, t,.,,
!;2aker of the As s. *. *217, the M43crity fa-dnr of cas Senate and c.*.4 Lag sgl,tur, og saa s t a t e e t :le.
. ex.
2.'7:33 M.1y 13, 1532 M P.""..*. 3 SY :
h /c,6,e_..a C3 uriif E.secutava ci Out'oL4 chuacy 0444 Ci Appreval:
.'.** /,o e
1l",.. i. C i.; tta J. Willi am H.
Itogers. Clerk of the SUFFOLX COUNT 7 I
Caaer 5.p.t-ru,,
County Wist:.ture of the C u. ty of Suth!k. h ve com:r.r:d tne
'IV Er.!!E,.tD,N. Y. l for: ping espy of retalutit.a e ith the ori;in 1 retslution i.aw on fik in this office. sad which w as daly ad:tt:d by ta:Ccunty L4;i:tr tart:(cid a
County on y /8 //[.? /
and th:t the ame Ja true and correct tren.wript of:.ad rectution :ad at the wk. ale thereof.
Je 7he C*m M.J have hereunto wt my hand and the of.5c::1 64&! el the County Le;itiature of the County of Suffolk d u..... Q......... 1...Q..
Chrk of tas Csaaty L,..nic ture
- =
' " ' ' ' ' - =
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,.mm a,. - - - =.
g-
!. [*
s 11l Resolution No.
///-1983; Constituting the Findings and Determinations of Suffolk County' on Whether A Level of Enargency Preparedness'To Respond to. a Radiological Accident At the Shoreham Nuclear Power Station Can Protect the Health, Welf are and Saf ety of the Residents of Suffolk County
==.
WHEREAS, Suffolk ' County has a duty under the Constitution of the State of New York, the New York State Municipe.1 Home Rule Law, and the Suffolk County Charter to protect the health.
-safety, and welf are of the residents of Suffolk County; and";}{.
T; WHEREAS, the Long Island Lighting Company ("LILC0") is constructing and desires to operate the Shoreham Nuclear Power Station ("Shoreham"),. located on the north shore of Long
-er Island near the town of Wading River, a location which is within the boundaries of Suffolk County; and WHEREAS, a serious nuclear accid'ent at Shoreham could
. result in the release of significant quantities of radioactive fission products; and WHEREAS, the release of such radiation would ~ pose a severe hazard to the health, safety, and welf are of Suffolk County residents; anc g' -
WHEREAS, in recognition of the eff ects of such p'otential.--
. hazard posed by Shoreham on the duty of Suffolk County to pro-t'ect the health, saf ety, and welf are of its citizens, this
. Legislature on March 23, 1982, adopted Resolution No. 252-1982, which directed that Suffolk County prepare a " County Radio-logical Emergency Response Plan to serve the interest of the saf,ety, health, and welf are of the citizens of Suffolk County and WHEREAS in Resolution 252-1982, the Leg'islature determined that the plan ~ developed by the County "shall not be operable
-and shall not be deemed adeq'uate and capable of being implemented until such time as it is approved by the Suffolk County Legislature"; _ and
Page 2-WHEREAS, in adopting Resolution 262-1982, the Legislature found that earlier planning efforts.by LILCO and County planners (the "origi~nal planning data") were inadequate because they f ailed.to addresj the particular problems posed by conditions on Long Island. and further f ailed to account for human behavior during.a radiological emergency and the lessons of the accident at Three Mile Island; and WHEREAS, on March 29,1982', Peter F. Cohalan, Suffolk County Executive, acting to implement Resolution 26E-1982, by Executive Order established the Suffolk County Radiological Emergency Response "an Steering Committee (" Steering Committee")
and directed it to prepare a County plan for submittal to the County Executive and County Legislature; and D~
VMEREAS, the Steering Committee assembled a group of highly qualified and nationally recognized experts from diverse disciplin'es to prepare such County plan; and WHEREAS, such highly qualified exfe'rts worked in a diligent and conscientious effort at a cost in excess of 5500,000 to
. prepare the best possible plan for Suffolk County, _ and particularly to ensure-that.such plan took into account all gg;
. 'particular physical and behavioral conditions on Long'Isiand t' hat aff ect the _ adequacy of the emergency response plan; and WHEREAS, the analyses, studies, and curveys cf such experts #
included:
(a)
Detailed analyses of the possible releases of radiation from Shoreham; (b)
Detailed analyses of the radiological health consequences of such radiation release on the population of Suffolk County, given the meterologi-cal, demograph'ic, topographical, and other specific local conditions on Long Island; (c)
A detailed social survey of Long Island residents to determine and assess their intended behavior in the event of a serious accident at Shoreham;
. (d)
'A detailed survey of school bus drivers, volunteer firemen, and certain other emergency response personnel to determine whether emergency personnel
' intend to report promptly for emergency duties, or instead to unite with their own f amilies, in the event of a serious accident at' Shoreham;
- c. -
7 Page'3
~(e)
Detailed e'stimates_ of ~the number of persons who would be ordered to evacuate in the event of a serious accident, at Shoreham, as well as the number-of persons who intend to evacuate voluntarily even -if not ordered to do so; (f)
Detailed analyses of the road network in Long Island and the time required to evacuate persons from areas affected by radiation releases; (g)
Detailed analyses of the-protective actions available to -Suffolk County residents to evacuate or take shelter from such radiation releases; and (h)
Analysis of the lessons learned from the accident at Three Mile Island on local covernment responsibilities to prepare for a radiological emergency; and WHkREAS, on l'ay 10, 1982, LILCD, without the approval er authorization of the Suffolk County Government, submitted to the New York State Disaster Preparedness Commission ("D?C")
two volumes entitled "Suffolk Ccunty Radiological Emergency %:
. Response Plan" and containing the original planning data, asTG further revised and supplemented by LILCD, and requested' the DPC-to review and, approve such LILCO submittal as the local radiological emergency response plan for Suffolk County; and y
WHEREAS, in Resolutions 456-1982 and 457-1982, the County further addressed the matter of preparing for a radiological emergency at'Shoreham and emphasized that:
(a)
The LILCO-submitted document was not and will not be the County's Radiological Emergency.
Response Plan; and (t)
The County's Radiological Emergency Response Planning Policy, as enunciated in Resolution i
456-1982, is as follows:
r.
(uffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been fully developed to the best of the County's ability.
Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been subject of at least two public hearings, one to be held in Riverhead, and one to be held in Hauppauge.
9 m
Suffolk County shall not assign funds or personnel to test or implement any radiological emergency respon.se plan for the Shoreham Nuclear Plant unless that plan has been approved, after public hearings, by the Suffolk County Legislature and the County Execut.ive; and WHEREAS, 'on June 9,1982, the DPC rejected the LILCO-submitted document for the reason that it was deficient; and WHEREAS, on October 6,1982, LILCO, again without the approval or authorization of the Suffolk County Government, submitted to the DPC an amended version of the previously submitted LILCO document which had been rejected by the DPC; and WHEREAS, on December 2,1982, the Draf t County Radiological Emergency Response Plan authorized by Resolution 262-1982 was suomitted to the County Legislature for review and public-hearings as specified in Resolutions 252-1982, 455-1982, and 457-1982; and
" ~-
WHEREAS, in January 1933, the Legislature held hearings on the Draf t County plan, which heari,ngs included:
5E.<
="K.
'e-
[.
(a)
More than 1,590 pages of transcripts ~;
(b)
Detailed written statements and oral testimony
- T?'
of County expert consultants who prepared the
~
Draft County plan;
^
(c). Detailed ' written statements and oral testimony of LILCO officials and expert consultants retained by LILC0; (d)
Detailed written statements and oral testim ~ ny o
of the Suffolk County. Police Department, the County Health Department, the County Social Services
.. Department, and the County Public Works Department, all of which would have indispensable roles in respond-ing to a radiological emergency at Shoreham; (e)
Detailed written statements and oral testimony or organizations in Suffolk County concerned with radiological emergency preparedness; and (f)
Extensive presentations by hundreds of members of the general public; and WHEREAS, members of the Legislature als'o travelled to and held public hearings in the vicinity of the Three Mile Island Nuclear Power Plant 'to gain informatjan on the lessons to be learned by local governments from the accident at Three Mile Island; and L_
- v Page 5 WHEREAS, the Draft County plan identifies evacuation and protective sheltering as the two primary protective actions which would need to be implemented in the event of a sericus accident at Shoreham; and WHEREAS, evacuation of Suffolk County residents in the event of ~a radiclogical emergency could take as much time as
~
14-30 hours because of various f actors, including:
the limited number of appropriate evacuation routes in Suffolk Ccunty; difficulties in mobilizing police and other emergency personnel; difficulties ensuing from spontaneous evacuation of large numbers of County residents, thus creating severe traffic congestion; and unavailability of alternate evacuation routes for persons
.resicing east of Shoreham and thus the necessity for such persons
~ ',
during an evacuation to pass by the plant and possibly thr.ough the radioactive plume; and WHEREAS, evacuation times in excess cf 70 hours8.101852e-4 days <br />0.0194 hours <br />1.157407e-4 weeks <br />2.6635e-5 months <br /> -- and certainly evacuation times in the range of 14-30 hcurs -- will result in virtual i.=cbilization of evacuation and high exposure of evacuees to radiation such that evacuees'. health (,C j'
. saf ety,. and welf are would not be protected; and R
WHEREAS, protective shel'tering is designed to protect w
persons from excessive radiation exposure by such persons stayine. indoors until radiation with the greatest danger to health has passed; and
~
~
WHEREAS, if protective sheltering were ordered for Suffolk County residents, unacceptable radiation exposure would still be experienced by substantial portions of the Suffolk County pcpulation, thus making it impossible to provide for-the health, welf are, and saf ety of these residents; WHEREAS, the. document submitted by LILCO to the DPC without County approval or authorization is deficient because
'it does not deal with the actual local conditions, physical
'and behavioral, on Long Island that would be encountered
'during a-serious nuclear accident at Shoreham; and WHEREAS, the document submitted by LILCO to the DPC without County approval o.r authorization does not ensure tha.t effective protective action by persons subject to radiation exposure, in the form of evacuation or sheltering, would be taken in event of.a serious nuclear. accident at Shoreham, and thus such document, even if implemented, would
.not protect the health, safety, and welf are of Suffolk Ccunty residents; and
Page 6 WHEREAS, the extensivi data which the Legislature has considered make clear that the site-specific circumstances and actual loca1 conditions existing on Long Island, particularly its elongated e.ast/ west configuration which requires all evacuation routes from locations east.of the plant to pass within a zone of' predicted high ~ radiation, the ineff ectiveness of protective sheltering, the severe traffic congestion likely to be" experienced if a partial or complete evacuation were
- ordered,.and the difficulties in ensuring that emergency
. personnel will prcmptly report for emergency duties, preclude any errergency response plan, if iniplemented, from providing adequate preparedness to protect the health, welf are, and
~
safety of Suffolk County residents; therefore be it
-1.~
RESOLVED, that the Draf t County plan submitted to the County Legislature on December 2,19S2, if implemented, would not protect the health, welf are, and saf ety cf Suffolk County residents and thus il not approved and wil1.not be~ implemented; and
- without the County approval or authorization, if implemented g RESOLVED, that the document submitted by LILCO to the DP
-would not protect the health, welf are, and safety of'Suffolk County residents and thus wil.1 not be approved and will not be...,
implemented; and RESOLVED, that since no local radiological emerge'ncy 2
response plan for a serious nuclear accident at Shoreham will protect the health, welf are, and safety of Suffolk County residents, and since the preparation and implementation of any such plan would be misleading to the public by indicating to County residents that their health, welf are, and safety are being protected when, in fact, such is not the case, 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 irnplemented;. and l
RESOLVED, that since no radiological emergency plan can protect the health, welf are, safety of Suffolk County residents and, since no radiological emergency plan shall be adopted or implemented by Suffolk County, the County Executive is hereby directed to take all actions necessary to assure that actions taken by any other governmental agency, be it State or Federal, are consistent with the decisons mandated by this Resolution.
UNITED. STATES OF. AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission
)
DOCKETED USHRC In the Matter of
)
)
LONG' ISLAND LIGHTING COMPANY
)
Docket No. 50-363-9hN 10 P3:43
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
0FF'CE OF SECnt:IAr;
}
00CnETmG & SEPVib BRANCH CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY MOTION FOR
' POSTPONEMENT OF NRC JUNE 11 MEETING have been served on the following this 10th day of June 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 Building Washington, D.C.
20555 Veterans Memorial Highway Hauppauge, New York 11788 Judge Elizabeth B. Johnson Oak Ridge National Laboratory-
- Fabian Palomino, Esq.
P.O. Box X, Building 3500 Special Counsel to the Oak Ridge, Tennessee 37830 Governor Executive Chamber, Room 229
' Atomic Safety and Licensing State Capitol Appeal Board Albany, New York 12224 U.S. Nuclear Regulatory Commission 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 1
i
Mr. Martin Suubert' James Dougherty, Esq.
c/o Cong. William Carney 30.45 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 Ccmmission 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, Latham and Shea 1717 H Street, N.W.
33 West Second Street Washington, D.C.
20555 Riverhead, New York 11901 Herzal Plaine, Esq.
Lawrence J. Brenner, Esq.
U.S. Nuclear Regulatory Commission Administrative Judge 10th Floor Atomic Safety & Licensing Bd.
1717 H Street, N.W.
U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Washington, D.C.
20555 Dr. George A.
Ferguson Dr. Peter A. Morris Administrative Judge Administrative Judge Atomic Safety & Licensing Board Atomic Safety & Licensing Bd.
U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Comm.
Washington, D.C.
20555 Washington, D.C.
20555 Morton B. Margulies, Esq.
Dr. Jerry R.
Kline Administrative Judge Administrative Judge Atomic Safety & Licensing Board Atomic Safety & Licensing Bd.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Washington, D.C.
20555
Mr. Frederick J.
Shon Mr. Frank R. Jones Administrative Judge Deputy County Executive Atomic Safety & Licensing Board H. Lee Dennison Building U.S. Nuclear Regulatory Commission Veterans Memorial Highway Washington, D.C.
20555 Hauppauge, New York 11788 Stewart M. Glass, Esq.
Joel Blau, Esq.
Regional Counsel New York Public Service Comm.
Federal Emergency Management Agency Gov. Rockefeller Building New York, New York 10278 Empire State Plaza Albany, New York 12223 Atomic Safety and Licensing Board Panel Mr. Stuart Diamond U.S. Nuclear. Regulatory Commission Business / Financial Washington, D.C.
20555 NEW YORK TIMES New York, New York 10036 MHB Technical Associates 1723 Hamilton Avenue Spence Perry, Esq.
-Suite K Associate General Counsel San Jose, California 95125 Fed. Emergency Mgmt. Agency Washington, D.C.
20472 Jonathan D. Feinberg, Esq.
Staff-Counsel E. Milton Farley, III, Esq.
New York State Public Service Hunton & Williams Commission P.O. Box 19230 3 Rockefeller Plaza 2000 Pennsylvania Ave.,
N.W.
Albany, New York 12223 Washington, D.C.
20036 Ms. Nora Bredes Odes L.
- Stroupe, Jr.,
Esq.
Executive Director Hunton & Williams Shoreham Opponents Coalition P.O.
Box 109 195 East Main Street 333 Fayetteville Street Smithtown, New York 11787 Raleigh, North Carolina 27602 i
Y k cit Y Lawrence Coe Lanpher "'
KIRKPATxICK & LOCKHART 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 DATE: June 10, 1985 By Hand By Telecopy By Federal Express j
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