ML20126J987
| ML20126J987 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/09/1985 |
| From: | Latham S SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Asselstine J, Palladino N, Roberts T NRC COMMISSION (OCM) |
| References | |
| CON-#285-344 OL-4, NUDOCS 8506100750 | |
| Download: ML20126J987 (133) | |
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ATTORNEYS AT LAW j
33 WEST SECOND STREE,T P o eOx aos THOMAS A TWOVEY. JR STEPHEN 8 LATHAv f
ET JOHN F SHEA ut (Stol 727-218 0 E A ST H AMPTON. N Y.11937 CHRfSTOPMER O MELLEy (516) 3241200
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AMV D TURNER LAWRENCE u sTcRu-June 9, 18bETED
.ao.o.m o,~ cownce.cu, USNRC
. ~o,w.. o.
The Hon. Nunzio J.
Palladino
'85 AN IO A11:09 BY HAND Commissioner Thomas M.
Roberts Commissioner James K. Asselstigh,.. f_ Shyj Commissioner Frederick M.
Berntgt 7[r[g Commissioner Lando W.
Zech, Jr.
BRANCH United States Nuclear Regulatory Commission 1717 H Street Washington, D.C.
20555 Re:
Prospect, et. al, and Town of Southampton, et. al.
- v. Cohalan.
Index No. 85-10520 NRC Docket No. 50-312-OL-4 (Low Power)
Dear Commissioners:
On behalt of 11 Suf f olk County Legislators and the Eastern Long Island Towns of Southampton, East Hampton, Southold and Riverhead, I am submitting two Petitions, an Order to Show Cause, and a Memorandum of Law in the above-reterenced litigation.
These petitions seek to annul Executive Order 1-1985, issued by suffolk County Executive Peter Cohalan on May 30, 1985.
The Petitions were submitted to State Supreme Court Justice Jack J.
Cannavo on Friday, June 7.
Judge Cannavo's signed an Order to Show Cause sets these matters down for a hear-ing in Riverhead Supreme Court on Monday, June 10, and we expect a determination on the merits shortly there-after.
These documents are submitted to be made a part of the record in the low power license proceeding
[ Docket No. 50-322-OL-4 (Low Power)].
Petitioners in these actions have been advised that the Commission has scheduled a meeting and possible vote for Tuesday afternoon, June lith on LILCO's request for a low power license.
This meeting follows one held on Tuesday afternoon, June 4, at which the Commission was squarely conf ronted with the fact that the position of the Suffolk County government concerning the operation of Shoreham had been suddenly and dramatically fractured by the issuance of Executive Order 1-1985.
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The Hon. Nunzio J.
Palladino, et. al.
June 8, 1985 Page Two i
Until a determination has been made by New York State Courts regarding the legality of Executive Order 1-1985, the issue of who speaks for Suftolk County will 3
remain unresolved.
Accordingly, any action by the Commission which results in the issuance of a low power license prior to a judicial resolution of this dispute would be a gross injustice to the legislature and resi-dents of Suffolk County.
The Commission should be advised that, Mr. Ashare's representations to the contrary, the County was not rep-resented by counsel at the June 4th hearings since the legal position advanced by Mr. Ashare does not consti-tute the County's position.
The County Executive's unlawful usurpation of powers reserved to the Leg is l a-ture and his attempt to override the County's position by executive flat is a legal nullity and has denied the County Legislature and the citizens of Suffolk County due process.
I havo reviewed the transcript of the proceedings held by the Commission on June 4, which clearly demon-strates the extent to which the County Executive is systematically dismantling the County's legal case.
With regard to Mr. Ashare's attempt to withdraw the County's legal position on NEPA, his representation to the Commission on that issue is a nullity.
Similarly, Mr. Ashare's representations concerning the County's participation in emergency planning are a nullity.
To the extent Mr. Ashare and Mr. Cohalan may have attempted to settle, or have in fact settled, safety or security issues, any such settlements are a legal nullity.
Those settlements were executed without consultation with the experts retained by the County, MHB Technical Associ-ates or the County's special counsel, Kirkpatrick &
Lockhart.
In sum, Mr. Ashare's participation in the oral argument itself is a nullity, since he is bound by the County Charter and County Law to represent the County, not the County Executive.
To proceed with the issuance of a low power license in the face of the County Executive's deliberate ef forts to sabotage County policy and County government would be a monumental af t ro'.t to due process and common sense.
The issuance of any low power license will be challenged n
?
4 i
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The Hon. Nunzio J.
Pallac ino, et. al.
June 8, 1985 Page Three in the Courts on the merits, and any low power license issued in the face of this governmental conflict would be fatally tainted in that it would be based on a misrepresentation of the County's position.
For the foregoing reasons, the petitioners urge the Commission to suspend further consideration of the low power license until the matter of the legality of the County Executive's Executive Order has been determined by the Courts of New York State.
In view of the urgency of these matters, we fully expect a determination on the merits of our litigation within a week or two.
More-over, since LILCO has stated that it will require several weeks to prepare for low power operation, no prejudice to any party will result pending the Court's resolution of the critical governmental contlict which we now face in Suffolk County.
Yours truly, Stephen B.
Latham SBL:tf Enclosures cc Docketing and Service (ByHand)d (u)/ocM Low Power Service List Lawrence Lanpher, Esq. (Express mail) i Edwin J.
Reis, Esq. (By Hand)
W. Taylor Revoley, III, Esq. (Express Mail)
Fabian Palomino, Esq. (By Hand)
Martin B. Ashare, Esq. (By Hand) (LM[o 6HclS)
I i
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t At a Special Term. Part of the Supreme Court of the State of New York, held in and for the County of Suff01k at finafM yd NewYork,onthe7'[dayofJune, 1985.
PRESENT:
'v JACK ICANNAVO i
Justice
___________________________________.______x In the Platter of the Application of WAYNE PROSPECT, GREGORY J. BLASS, JO!!N J. FOLEY, STEVEN ENGLEBRIGli', jai!ES !!OR30, JOSEPH RIZZO, PilILIP NOLAN, and SONDRA BACIIETY,
0,RDER TO SHOW CAUSE f
Index No.: I'/ Q for a Judgment under Article 78 of the Civil Practice Law and Rules PETER F. COllALAN, County Executive
- i of the County of Suffolk, Respondent.
__________________________________________x On reading and filing the Petition of WAYNE PROSPECT, GRi!l GORY J. BLASS, JOHN J. FOLEY, STEVEN ENGLEBRIG!!T, JA'.fES MORGO, JOSEPl! RIZZO, PHILIP NOLAN and FONDRA BACHZTY, the Affidavit of WAYNE PROSPECT, sworn to June 5, 1985, the Affirmation of IRVING LIKE, ESQ., dated June 5, 1985, and the Exhibits annexed thereto; I.
LET the Respondent show Cause before Hon.
/
Justice of this Court, at a Special Tern, Part [
of j
L Pd*this Court, to be held at the Courthouse, Griffing Avenue, Riverhead, I
i i
New York, on June 10, 1985 at 9:30 o' clock in the forenoon of that day, or as soon thereafter as counsel may be heard, why an order should not be made and judgment entered pursuant to Civil Practice Law and Rules (CPLR) 87803 and CDLR li6301:
I 1
A.
Annulling Executive Order 1-1985 issued by Respondent on May 30, 1985; l
l B.
Enjoining the Respondent, his attorneys, J
agents, servants, employees and all persons acting in concert with them including but limited to those of the Suffolk County not I
Planning Department, Suffolk County Police Department and Suffolk County Attorney from taking any action whatsoever to enforce, implement or carry the directions, policies or terns of Executive out Order 1-1985 issued by Respondent on :tay 30, 1985 or any directive or instruction relating the.reto; C.
Enjoining the Respondent from assigning or ex-pending any funds or resources in contravention of Resolutions 262-1982, 456-1982 and 111-1983, or directing any County personnel to review, test or implement the LILCO plan or any Radiological Emergency Response Plan (RERP), for the Shoreham nuclear plant without first presenting to the Suffolk County Legislatur the need therefor and securing a resolution adopted
i 4
by the County Legislature and approved by the County Executive in accordance with the provisions of the Suffolk County Charter and applicable statutes, local laws and regulations; D.
Enjoining the Respondent and the persons herein-above described from modifying the policy and legal position of Suffolk County in any Shoreham related proceedings as established by the County and its Special Counsel, Kirkpatrick and Lockhart, Esgs., and the County policy as set forth in the resolutions 262-1982, 456-1982 and 111-1983, and from communicating to the Nuclear Regulatory Commission (NRC), the Public Service Commission (PSC), or to any federal or state judicial tribunal, administrative agency, department of government or official, either verbally or in writing directly or indirectly that such policy is other than is described in said resolutions or that such County policy has been changed from that of being opposed to the operation of Shoreham; E.
Enjoining the Respondent from withdrawing the County's opposition to the issuance by the NRC to LILCO of a low power operating license for Shoreham.
II.
The grounds for this application as more fully
~
set forth in the petition and affidavits and supporting legal memorandum are that the Respondent has threatened to or is about to carry out acts which usurp and destroy the powers of the Suffolk County Legislature and violate:
A.
The provisions of the Suffolk County Charter concerning the distribution of the powers of the County Executive and the County Legislature; B.
Resolutions, local laws and policy previously adopted by the County Legislature with Respondent's approval as County Executive relating to the Shoreham nuclear plant; C.
The provisions of Article 2-B of the Executive Law governing the powers of chief executive officers of local political subdivisions; and D.
On the further ground that the Petitioners have demanded a permanent injunction and said acts of Respondent, if committed during the pendency of this action, would produce injury to the Petitioners, l
the voters of Suffolk County, and the ratepayers of l
LILCO's service area.
i
~~
III.
It appearing from the petition and the aforementioned I
affidavits that immediate and irreparable injury, loss or damage will l l l
result to the Petitioners herein; it is ORDERED, that service of this Order and the papers upon which it is granted upon the Respondent on or before the
@ day of June, 1985, shall be deemed sufficient notice; and it is further l
l ORDERED, that pursuant to Civil Practice Law and Rules (CPLR) !!7804(e), a verified answer and supporting affidavits, if l
together with Respondent's entire official file and record
- any, with Respect to Executive Order 1-1985 and true copies of any and all documents which will be offered in evidence by Respondent in support of Executive Order 1-1985 shall be served upon Petitioners'
- rc At y a h E#5 oN fto'o/
t attorneys r '-ter thr 12 T:sa, June /c, 1985.
ENTER l
A t-
' u~h J.s.C.
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o SUPRDIE COURT!OF THE STATE OF NEW YORK COUNTY OF-SUFFOLK
__________________________________________x In the !!atter of the Application of
- WAYNE PROSPECT, GREGORY J. BLASS, JOHN
.J.
FOLEY, STEVEN ENGLEBRIGHT, JAllES l!ORGO, JOSEPH RIZZO, PHILIP NOLAN, and SONDRA VERIFIED
-BACHETY,-
-PETITION Petitioners, I
Index No.:
for a Judgment under Article 78 of the
- Civil Practice Law and Rules i
PETER F. COHALAN, County Executive
~
of the' County of Suffolk, Respondent.
__________________________________________x F
.TO THE SUPRE11E COURT OF THE STATE OF NEW YORK, COUNTY OF'SUFFOLK:
Petitioners, by REILLY, LIKE & SCHNEIDER, ESQS., and j
7 LESTER B. LIPKIND, ESQ, their attorneys, complaining against the
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]
Respondent, respectfully allege:
j
't 1.
Petitioners are duly elected legislators of the L
. County Legislature of the County of Suffolk, taxpayers of the
. County of Suffolk-and ratepayers of the Long Island Lighting
' Company, a New York electric and gas public service utility I
corporation (LILCO).
]
- 3
.s 2.
Respondent is the duly elected County Executive 4
of:the County of Suffolk.
a.- - -. -.
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3.
The County of Suffolk is governed by the Suffolk County Charter (" Charter"), which establishes the County Executive and County Legislature as co-equal branches of government, and, entrusts to the County Legislature:
(a) the determination of r
county policies; (b) the powers of local legislation and appropriation; and (c) the exercise of such other functions and powers as may be granted or assigned to it by such Charter 6
or by State or local law (Charter 88201, 202, 213).
4.
Local laws and resolutions of the Suffolk County Legislature may not be enacted except in accordance with the proceedings and requirements prescribed in said Charter, and shall require the affirmative vote of :
a) not less than a majority of the total membership of the County Legislature; or b) two-thirds of the total membership of the County Legislature if prior to passage, the County Executive certifies as to the necessity of its immediate passage.
(Charter 6219-222).
l 5.
No local law or resolution, other than a resolution I
relating to procedure shall take effect until it has been aoproved j
by the County Executive and after complying with the procedures and requirements of the Charter.
(Charter, 88222-223).
6.
The County Executive is charged with the respon-sibility of taking care that the laws and resolutions applicable to the m _ _ _ County and.the. powers-and duties assigned to him by the Charter as delegated to him by the County Legislature, are faithfully
~ executed and performed consistent with law.
(Charter 88303, 304).
L
.1: '
7.
Proceedings are presently pending before the Nuclear Regulatory Commission (NRC) on the application by LILCO for a license permitting it to operate an 820 mw nuclear power electric generated facility on property located at Shoreham in the Town of Brookhaven, County of Suffolk and State of New York.
8.
In response to the accident which occurred at the Three Mile Island nuclear facility (TMI) at Harrisburg Pennsylvania in March, 1979, the Congress determined that no nuclear plant should be licensed to operate unless an adequate emergency plan could be drawn up and implemented for the area surrounding the nuclear facility.
(NRC Authorization Act of 1980).
9.
The NRC in implementing the policy necessitated by Congress, promulgated a number of regulations which included the mandatory submission of an adequate radiological emergency
~
plan (RERP), by an applicant desirous of operating a nuclear power plant.
An operating license is issued only if the NRC finds that there is a reasonable assurance that adequate protec-tive measures can be taken to protect the area surrounding the nuclear facility in the event of a radiological emergency.
(10 CFR 850.47(a)(1)(1984)).
10.
On ifarch 23, 1982, the Suffolk County Legisinture
, _ _ _.. passed Resolution 262-1982 which was introduced, strongly supported, and approved by the Respondent as County Executive on March 25, 1982, t h
to prepare a authorizing the Suffolk County Planning Department County RERP in connection with the Shoreham operating licensing to serve the interests of safety, health and welfare proceedings, Said resolution of the residents of Suffolk County (Exhibit 1).
provided:
that said plan shall not be operable L
" RESOLVED, and shall not be deemed adequate and capable of being implemented until such time as it is f:
and approved by the Suffolk County Legislature; that only after said plan is approved
- RESOLVED, by the Suffolk County Legislature shall it be submitted to the Federal Emergency Management Agency and the Nuclear Regulatory Commission for purposes of any findings, determinations, t
rulings, reviews, or hearings by such Federal agencies."
A 11.
On May 18, 1982 the Suffolk County Legislature introduced, strongly supported and passed Resolution 456-1982,
- 1982, approved by the Respondent as County Executive on May 19, f
establishing the RERP policy of the County of Suffolk (Exhibit f
2).
Said resolution provided:
c f
planning
[
"WHEREAS, Suffolk County's Emergency
?
Task Force, composed of nationally recognized T
experts drawn from a range of pertinent disciplines, in is now conducting a detailed planning effort i
order to attempt to develop a viable radiological emergency plan for Fuffolk County; and in an WREREAS, The Long Island Lighting Company, unwarranted and arrogant act, has gone beyond its powers as a private corporation in an attempt to usurp the rightful powers of Suffolk County by sub-mitting county planning resource material to the New York State Disaster Preparedness Commission for its approval as the official radiological emergency response plan for Suffolk County; and 1 k
3 WHEREAS, said planning resource material developed in part by county personnel, is preliminary data which in no way constitutes the Suffolk~ County.
approved RADIOLOGICAL EMERGENCY RESPONSE PLAN ~
.and will not in the future constitute such.
County plan; and d
WHEREAS, Suffolk County will submit its. RADIOLOGICAL EMERGENCY RESPONSE PLAN to the New York State Disaster.
Preparedness Commission only when that plan has been j'
fully prepared and approved by Suffolk County and is thereby integrated with the planning efforts of both LILCO and New York State; therefore, be it.
t RESOLVED, that Suffolk County hereby established-the following Radiological Emergency Response
-[
Planning Policy:
[
s Suffolk' County shall not assign funds or
[
personnel to test or implement any radio-
[
logical emergency response plan for'the t
Shoreham Nuclear Plant unless that plan i
has been fully developed to the best of
[
the County's ability.
?
Suffolk County shall not assign funds or E
I personnel to test or implement any radio-logical emergency response plan for the t
Shoreham Nuclear Plant unless that plan j
has been the subject of at least two public
(
hearings, one to be held in Riverhead and
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one to be held in Hauppauge.
t Suffolk County shall not assign funds or I
4 personnel to test or implement any radiological emergency response plan for' the Shoreham Nuclear Plant unless that
}
l plan has been approved, after public: hearings,
. 6 i
by the Suffolk County Legislature and-the y
l County Executive."
i i
12.
The Planning Department, in accordance with the-(
. legislative directive, submitted a RERP in December 1982.
A: number of public hearings were held by the Legislature to consider the RERP
,u, in January, 1983.
The Suffolk County Legislature on February 17, i
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j i
L.'.
~
1983, adopted Resolution 111-1983, which was introduced, strongly supported and; approved by the Respondent County' Executive on
. February 22, 1983 (Exhibit 3), pursuant to'which it was decided not to approve, adopt or implement any RERP for Shoreham.
TheLreason 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 plan shall be adopted or implemented...
((
."...(Since) ro radiological emergenc'y plan can protect the health, welfare and safety of Suffolk= County residents and, since no y
radiological emergency plan shall be adopted E
or' implemented by Suffolk County, the County f-Executive is hereby directed to assure that-actions taken by any other governmental agency be it State or Federal, are consistent with the decision mandated by this Resolution".
i 13.
The Governor of New York,'after reviewing the results of a study by the Marburger Commission, an independent
[
committee appointed by the Governor to study the Shorehan h
C situation, announced that no RERP for Shoreham would be 9
' adopted or implemented by the state.
14.
Following the County's refusal to adopt a RERP, LILCO, relying upon New York State Executive Law, Article 2-B.(State and Loc _al Natural and Man-Made Disaster Preparedness),
submitted its own plan to the NRC, designated as "The LILCO Transition Plan" (PLAN). 9
e 15.
The LILCO Plan describes in detail the actions
-which LILCO proposes to take in the event of a radiological emergency at the Shoreham facility.
16.
Thereafter, the County of Suffolk, the State of New York and the Town of Southamptan commenced' separate declaratory judgment actions in the Supreme Court, Suffolk l
County against LILCO, seeking a declaration that LILCO does not have the legal authority to carry out its Plan.
17.
The Supreme Court of Suffolk County, in a decision by Justice William R. Geiler, published in the New York E
Law Journal, April 19, 1985, (Exhibit 4), concluded that LILCO's I
plan constituted a usurpation by LILCO of governmental powers-f
. f and directed that judgment be entered in favor of the Petitioners.
[
I 18.
The Court declared that Executive Law, Article I
2-B,'did not authorize LILCO, expressly or impliedly, to exercise f
the State's police powers in emergency situations, but only O
p conferred these powers upon state and local governments.
1 k
10.
Upon information and belief, on May 30, 1985, i
H the Respondent signed and issued Executive Order 1-1985 (Exhibit 5),
l whoseLintent and purported effect is to nullify Resolutions 262-1982, 456-1982 and 111-1983,- and the provisions of the Charter distributing I
8 powers between the County Legislature and County Executive, directing
_. ___ _ County _ authorities.to review and run a drill of LILCO's evacuation plan incident thereto, and Respondent stated:
' s
--,--.m
g I
"I've dropped my opposition to the' Plan as long as the results of the drill are positive".
20.
The Respondent's Executive Order 1-1985, is invalid and a violation of the Charter and the resolutions setting forth the policy and law of the County with regard to Shoreham and emergency planning, adopted by the County Legislature with the. approval and
~
concurrence of the Respondent as County Executive.
Respondent's actions-usurp the functions of the County Legislature and breach the principle of the separation of powers between the executive and legislative branches embodied in the New York State Constitution, the Municipal Home Rule Law and Charter.
Respondent lacks any J
f anthority:
a) to assign any funds or direct any County authorities
[lI or personnel to review, test or implement LILCO's plan, or.any other f
RERP;-or b) to modify or drop the County's policy of opposition to y
f, the licensing of the Shoreham plant for operation.
Respondent has f
unilaterally arrogated to himself the power to determine the i
- I
~
County's policy with regard to the operation of the Shoreham plant
[
(
in violation of.the express will of the County Legislature.
The I
Respondent has vitiated the County's Shoreham policy and misrepresented
).
it to third parties including the NRC, the PSC and Federal and State E
Courts in which Shoreham related proceedings are pending.
j 1
d 21.
The Respondent's conduct and Executive Order #1-1985 y
constitute a violation of Article 2-B of the Executive Law in that:
_A.i____.
~.m m.
-Respondent seeks to implement as a County RERP, the LILCO plan previously rejected by the County-y
I and declared by the Supreme Court of l
Suffolk County to be a usurpation of state k
and local governmental power; h
b.
Respondent unilaterally undertakes to act in a manner denounced by.the Presiding Officer of the Suffolk County Legislature as patently illegal, and without the concurrence and approval of the County Legislature; and c.
Respondent acted without satisfying the requirements of the provisions of Article 2-B which are conditions precedent to the exercise of the authority of the Chief Executive of any political subdivision.
I 22.
By reason of the foregoing, the acts of the Respondent have caused irreparable injury to the Petitioners,
'I the people Petitioners represent as elected County Legislators, r
r the taxpayers of Suffolk County, and the over 800,000 ratepayers
'of LILCO's service area, for which there is no adequate remedy at law.
23.
The injunctive relief requested by petitioners is essential because of the Respondent's unilateral decision to change the policy of the Suffolk County Government from one of i __._ opposition _to supporting operation of the Shoreham plant.
t
\\
a.
The County's policy of opposition to Shoreham on safety grounds and its legal position regarding the impossibility of any evacuation or RERP has been communicated to the NRC and the PSC and federal and stato courts whenever Shoreham-related issues were under consideration. Executive Order 1-1985 is being mis-represented in Shoreham-related proceedings by Respondent and LILCO as a reversal of the County policy opposing operation'of Shoreham.
j b.
As evidenced by the annexed letter dated
{
May 31, 1985, to County Attorney Martin Bradley Ashare, Esq.
i from Herbert H. Brown, Esq., the County's special' counsel in.
all the Shoreham proceedings (Ex. 6), the Respondent's reversal of position concerning emergency planning for and opposition to Shoreham has a significant adverse impact on the positions taken by Suffolk County in various Shoreham related proceedings.
[
l c.
In the Shoreham operating license proceedings j
pending before the NRC, LILCO has applied for a low power test
. license which, if granted, would permit LILCO to operate Shoreham i
Lat a' power level causing it to become irrevocably radioactive, d.
Respondent has repeatedly stated publicly and in formal presentations to the County Legislature, Governor Cuomo's Shoreham Commission, the NRC, and federal and state courts,
"*---that--Shoreham should not ope ate because it is impossible to safely evacuate or otherwise protect the public in the event of a serious
- nuclear accident.at the plant.
Respondent has further stated that
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operation of Shoreham would imperil the well being of Suffolk I
County's residents.
By virtue of the decision of this Court (Ex. 4) declaring the LILCO plan illegal, and the findings and conclusions of the NRC, "The LILCO plan caqnot and will not be implemented as required by regulations...
"From a practical standpoint the foregoing findings leave LILCO without an implementable comprehensive and effective Emergency Response Plan for Shoreham" (Atomic Safety and Licensing Board Partial i.
Initial Decision on Emergency Planning Dated April 17, 1985, Docket No. 50-322-OL-3, p. 426).
n e.
The unilateral decision of the Respondent to drop opposition to Shoreham misrepresents and vitiates the policy and legal position of the County of Suffolk in all such judicial and agency proceedings and, if allowed to be communicated R
as the new policy of the County of Suffolk, increases the possibility that the NRC will misperceive Suffolk County's policy as one of support of Shoreham and issue a low power test license and ultimately a full power operating license, thereby increasing the radiological t
risk to the health and safety of the people of Long Island.
l f.
Unless immediato injunctive rolief is granted, the Respondent will effectively destroy the Suffolk County Charter
. form of government and will become the unauthorized accomplice of LILOO'in putting the Shoreham plant into operation contrary to,the duly established policy and resolutions of the Suffolk County government.
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' - - ~ - ~ ~ "
f WIIEREFORE, the Petitioners demand judgment against the Respondent as follows:
A.
Annulling Executive Order 1-1985 issued by Respondent on May 30, 1985:
B.
Enjoining the Respondent, his attorneys, agents, servants, employees and all persons acting in concert with them, including but not limited to r
those of the Suffolk County Planning Department, Suffolk County Police Department and Suffolk County Attorney from taking any action whatsoever to enforce, implement or carry out the directions, policies or terms of Executive Order 1-1985 issued by Respondent on May 30, 1985 or any directive <nc instruction relating thereto; C.
Enjoining the Respondent from assigning or expending any funds or resources in contravention of Resolutions 262-1982, 456-1982 and 111-1983, or directing any County personnel to review, test or implement the LILCO plan or any Radiological Emergency Response Plan (RERp), for the Shoreham nuclear plant without first presenting to the Suffolk County Legislatug the need therefor and securing a resolution adopted A_...._._
by the County Legislature and approved by the i
\\
1 k
County Executive in accordance with the pro-visions of the' Suffolk County Charter and I
applicable statutes, local laws and regulations; j
4 D.
Enjoining the Respondent and the persons herein-above described from modifying the policy and legal position of Suffolk County in any Shoreham related proceedings as established by the County a
and its Special Counsel, Kirkpatrick and Lockhart, f
Esqs., and the County policy as set forth in the resolutions 263-1982,456-1982 and 111-1983, and l
1 from communicating to the Nuclear Regulatory
)
Commission (NRC), the Public Service Commission d
h (PSC), or to any federal or state judicial tribunal, g
administrative agency, department of government or h
official, either verbally or in writing directly or j
i indirectly that such policy is other than is -
1 described in said resolutions or that such County policy has been changed from that of being opposed i
to the operation of Shoreham; E.
Enjoining the Respondent from withdrawing the County's opposition to the issuance by the NRC to LILCO of a low power operating license for Shoreham.
.. - - i 1
p.
For such other and further relief as the 1
Court deems proper, together with reasonable attorneys fees and costs and disbursements of this action.
REILLY, LIKE & SCHNEIDER 200 W. ? lain St., Box 218 Babylon, New York 11792 (516) 669-3000 4
LESTER B. LIPKIND, ESQ.
~
12 Grove Place I
Babylon, New York 11702 l
(516) 669-3421 Dated:
June 5, 1985 Babylon, New York f4 9
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SUPRUME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK
_----_--_---------------------------------X In the Matter of the Application of WAYNE PROSPECT, GREGORY J. BLASS, JOHN
.J.
FOLEY, STEVEN ENGLEBRIGHT, JAMES MORGO, JOSEPH RIZZO, PHILIP NOLAN, and SONDRA
'BACHETY, AFFIDAVIT Petitioners, for a Judgment under Article 78 of the Index No.:
Civil Practice Law and Rules PETER F. COHALAN, County Executive of the County of Suffolk, Respondent.
__________________________________________x
. STATE OF NEW YORK
)) SS.:
COUNTY OF SUFFOLK
)
WAYHE PROSPECT, bein,~ duly sworn, deposes and s ays :
1.
I am a Suffolk County Legislator and one of the petitioners named in the caption.
2.
I submit this affidavit in support of the relief requested in the within petition brought on by Order to Show Cause pursuant to CPLR 887803 and 6301.
3.
I am intimately familiar with the facts and 3'
-proceedings described in the Petition.
A
4.
I and my colleagues on the Suffolk County Legislature have' joined in this proceeding in order to prevent Respondent from destroying our Suffolk County Charter form of. government guaranteed to us by New York State Constitution, Article 9 91. and Municipal Home Rule Law 910.
5.
As detailed in the Petition, Respondent's Executive Order 1-1985 violates County Resolutions 262-1982, 456-1982'and 111-1983, duly enacted with his approval and enthusiastic support, and violates the Suffolk County Charter's provisions governing the distribution of powers between the County Legislature and County Executive, the establishment of County policy and expenditure of funds.
6.
These resolutions codified the County policy and practice on the subject of radiological emergency response planning concerning the Shoreham nuclear plant, and determined that, as a result of Suffolk County's unique island geography and limited road capacity, it would be impossible to design an evacuation plan that could be successfully implemented if there were a nuclear accident at Shoreham.
7.
Accordingly, it is Suffolk County's official y
position, established through the lawful processes, required by
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"E should not operate because the risk to the public health and safety would be too great.
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8.
Consequently, pursuant to the enumerated County Resolutions, all county departments and agencies have been pre-cluded from planning, developing and participating in any radio-logical emergency response plan for Shoreham, and the County Executive, pursuant to such legislation, has been 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 positions of Suffolk County.
9.
In addition, our adopted legislation explicitly states that there can be no radiological emergency response plan for Shoreham unless such a plan is approved by the County Legis-lature.
10.
This Court has declared LILCO's plan _to be illegal as a private corporation's usurpation of. state and local governmental power (Exhibit 4 to Petition).
11.
In view of the official position taken by the Suffolk County government and New York State opposing operation of Shoreham, the NRC's Atomic Safety and Licensing Board has concluded that LILCO's plan cannot and will not be implemented as required by regulation, and that LILCO lacks an implementable, comprehensive and effective emergency response plan for Shoreham (Petition, pg. 11,' para, d),
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12.
The Respondent's Executive Order 1-1985 of May 130, 1985 now seeks to unilaterally and arbitrarily rescind all County legislation on the subject of radiological emergency response planning by directing Suffolk County's participation in~ the LILCO emergency response plan for Shoreham and to change Suffolk County's policy and position on Shoreham from opposition to support.
13.
Respondent 's action has provoked such widespread public outrage at his cynical disregard of orderly democratic governmental processes that Mr. Lou Howard, the Presiding Officer of the Suffolk County Legislature and a supporter of Shoreham, has denounced Respondent's Executive Order as patently illegal and an inappropriate vehicle for accomplishing any change in the County policy on Shoreham.
14.
Respondent's contempt for the requirements of the Suffolk County Charter is evidenced by the fact that a C
y,
Resolution had previously been introduced by Presiding Officer Howard and laid on the table 2/13/85 (Intro Res. No. 1177-85) (Exhibit 7), which proposed repeal of Resolution Nos. 450-1982 and 111-1983, and a change in the County's policy on Radiological Emergency Responso Planning so as to authorize a test of a County RERP to be prepared in a specific manner.
This resolution failed to gain sufficient support to be voted on by the County Legislature.
A - - --.= - '
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15.
If Respondent wished to change the County's 1
policy on Shoreham he had available to him the means of doing so through supporting Mr. Howard's resolution or any variation thereof.
16.
Instead, Respondent has attempted in an unprecedented manner to circumvent the governmental orocesses prescribed by the Charter and the express will of the C6unty Legislature by issuing Executive Order 1-1985 and then unilaterally taking immediate steps to reverse the County's policy on Shoreham in pending Shoreham i
related proceedings.
17.
Respondent's conduct irreparably injures the County in t'he most profound ways imaginable.
First, by destroying the fabric of Suffolk County's government through nullification of the legislative will expressed after the deliberate processes prescribed by the Charter.
Second, by carrying out his executive usurpation of legislative functions in the Shoreham case, whose outcome, one way or another wil.1 vitally affect the immediate and long term health, safety and well-being of the people of Suffolk County, and indeed, Long Island.
18.
One need not be for or against Shoreham to experience revulsion at Respondent's executive lawlessness.
_4 "Shoreham should not operate, hecause it is impossible to safely s
evacuate or otherwise protect the public in the event of a serious nuclear accident at the plant.
That fact alone means that the i
operation of Shoreham would imperil the well-being of Suffolk County's. residents."
(Statement of Suffolk County Executive Peter F. Cohalan before Governor Cuomo's Shoreham Commission, September 30, 1983, pg. 1).
20.
The County Executive described the magnitude of the peril earlier on February 16, 1983, in his statement to the r
County Legislature concerning radiological preparedness.
" Radio-logical emergency preparedness for Shoreham is the most significant issue of public safety that this County government has faced.
It affects the health, safety and welfare of Suffolk's 1.3 million citizens and the hundreds of thousands of visitors who annually use our recreational facilities and shoreline.
There is no competing value, be it political, economic or otherwise, that could justify r
our giving the public's safety any priority other than the very highest" (Statement, p. 2).
21.
On the following day, February 17, 1983, the County Legislature adopted Resolution 111-1983, and it was approved and ratified by Respondent on February 22, 1983 (Ex. 3).
22.
On May 1, 1985, IIerbert H. Brown, Esq., the County's Special Counsel in the Shoreham related matters, sent a
. status report on pending matters in which he pointed out that Suffolk County, together with the State of New York, stood close t o complete victory (Ex. 8).
He pointed out that the Shoreham case was at a critical stage and described what County legal resources were necessary to protect its interest in the various pending judicial and administrative proceedings.
23.
As late'as May 7, 1985, Respondent stated:
"We have not publicly changed our position on Shoreham.
We still have two concerns, emergency planning and safety..."
(Newsday, May 31, 1985, p. 5).
- 24. On May 30, 1985, the Respondent suddenly, and in complete contradiction to his publicly stated representations announced he was dropping opposition to Shoreham and had issued Executive Order 1-1985 to implement his reversal of position.
25.
In doing so, he completely vitiated the gains which the County achieved in such proceedings, and misrepresented the County's established policy on Shoreham.
LILCO lost no time in capitalizing on Respondent's unilateral reversal of position.
On May 31, 1985 its counsel, Hunton & Williams, sent a letter circulating the Executive Order and related media articles to various officials (Ex. 9).
26.
Whatever justification, if any, Respondent may c
claim for his Executive Order and about face on Shoreham, and a - -
whether one siipports or opposes the operation of Shoreham, there 1
i is no justification, legal or moral, for the County Executivo to arrogate to himself without the approval of the County Legislature, his co-equal partner under the Suffolk County Charter, unilateral policy-making with regard to Shoreham.
27.
The County's official policy and position on Shoreham was arrived at over a long period of time with painstaking and scrupulous adherence to the respectivo roles of the executive and legislativo institutions established by the Charter and in compliance with its democratic processes for adopting local laws and resolutions.
The County Executive himself either introduced, or actively and vigorously supported and lobbied for enactment of the very resolutions he now seeks to obliterato by midnight executivo fint on the eve of critically important hearirqs in the Shoreham case which could result in the plant becoming imminently and irrevocably radioactivo.
28.
To allow him now to dictato policy on the Sliorcham case by a naked usurpation of power is to creato a tragic precedent paving the way for future executive abuse of power in other matters vitally affecting the interests of the people of Suffolk County.
29.
In short, unless the relief requested is granted by this Court, the Hospondent has destroyed the meaning and integrity of the Suffolk County Clarter and has trampled upon the rights of W % w %])2& [
the citizens of Suffolk County.
4 WAYNE ylt03pSCT
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I Swora to-pofore me th p 5t ay of June, 19
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i VERIFICATION STATE OF NEW YORK
))ss.:
COUNTY,OF SUFFOL!;
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WAYNE PROSPECT, being duly sworn, deposes and says that deponent is one of the Petitioners in the within action; that deponent has read the foregoing Petition and Affidavit and knows the contents thereof; that the same is true to deponent's own knowledge except as to the matters thoroin stated to be alleged on infonnation and belief, and that as to those matters doponent boliovos it to be true.
MytQ Op v
I WAYN PROSPECT
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Sworn to before me this 5 th day of June, 1985.
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK
____________..___________________x In the !!atter of the Application of WAYNE PROSPECT, GREGORY J. BLASS, JOHN J. FOLEY, STEVEN ENGLEBRIGHT, JAMES HORGO, JOSEPH RIZZO, PHILIP NOLAN and SONDRA AFFIRMATION
- BACHETY, Petitioners,
'for a Judgment under Article 78 of Index No.:
the Civil Practice Law and Rules PETER F. COHALAN, County Executive of the County of Suffolk, Respondent.
___________....----------X STATE OF NEW YORK, COUNTY OF SUFFOLK:
IRVING LIKE, an attorney duly admitted to practice in the courts of the State of New York, affirma under penn1 ties of perjury:
1.
I make this affirmation to stress the irrepa,rable injury petitioners and the people of Suffolk County will suffer if this matter is not brought on for expedited judicial review with immediate injunctive relief as requested in petitioners' Order to Show Cause, submitted herein.
2.
This proceeding draws its urgency not simply from the County Executive's abuse of power and nullification of the Suffolk County Charter, but from the unique circumstances that I
lo it happens to involve a critical stane of the Shoreham nuclear l
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m plant operating license hearings, and, therefore, if such abuse is not immediately che'cked irreparable injury may result.
3.
Whether one believes County policy should support or oppose the opening of the Shoreham plant, no one disagrees the County's policy should be properly fashioned so that the health, safety and economic well-being of its citizens will be protected to the maximum extent possible.
4.
The irreparable injury consequences that will follow if immediate, permanent injunctive relief are not granted are detailed in the Affidavit of Stephen B. Latham, Esq.,
dated June 5, 1985 submitted in the proceeding captioned, "In the Matter of the Application of the TOWN OF SOUTHAMPTON, TOWN OF EAST !!AMPTON, TOWN OF SOUTl!OLD, and TOWN OF RIVERIIEAD, Petitioners, for a Judgment under Article 78 of the Civil Practice Law and Rules, PETER F. COIIALAN, County Executive of the County of Suffolk, Respondent".
It is respectfully requested that the matters stated in Mr. Latham's affidavit, petition and papers submitted in such proceeding be deemed incorporated herein.
5.
The Nuclear Regulatory Commission is deliberating at this very moment whether to issue a low power operating license to LILCO.
i G.
Since the issuance of Executive Order 1-1985, the Respondent has been moving precipitously to dismantle the f
I County's policy and legal position in the NRC operating license proceeding and all Shoreham related proceedings.
His acts have included:
A.
The firing of Kirkpatrick & Lockhart, Esqs.,
the law firm that has represented the County in the Shoreham related proceedings, a move whose validity is questionable in view of the illegality of Executive Order 1-1985; j
k B.
Respondent, on Friday, May 31, 1985, one
?
day after the issuance of Executive Order 1-1985, secretly
" signed a settlement with LILCO on the security issues for back up diesel generators, the largest obstacle to LILCO getting a license to t'est the plant at up to 5 percent power" (Newsday, 6/4/85, P. 3)
Prior to Executive Order 1-1985 the County's position had been to prevent low power operation of Shoreham with LILCO's so-called alternate AC power system (the DID diesels and gas turbine), because (i) this system is not safe, and (ii) it would be unlawful (and a potential waste of more than $120 million) to permit low power operation when it is foreseeable that Shoreham will never qualify for a license to operate at full power (See Ex. 8 to the petition,
- p. 2, para. 5).
- a. - _ -. - a l
C.
In addition, the County has vigorously opposed low power operation on various additional grounds included under the emergency planning circumstances existing at Shoreham (See Ex. 8, pp. 6-8).
D.
At the hearing before the NRC on Jun6 4, 1985, Martin Bradley Ashare, Esq., the County Attorney made statements to the NRC which undermined each of the County's policy and legal positions articulated in Exhibit 8.
A transcript of such hearing will be presented to this Court on the return date of the petition.
7.
The County Executive's Executive Order 1-1985 and the actions he and the County Attorney have taken subsequently threaten to destroy the County's position in the low power operating license proceedings and in all the other Shoreham related proceedings and matters described in Ex. 8, and is also contrary to the resolution adopted by the County Legislature on November 27, 1984 in which it expressed its opposition to low power licensing (Ex. 11).
8.
If a low power license is issued to LILCO, the Shoreham plant will become permanently radioactive, thereby presenting a threat to the health and safety of the people of Suffolk County.
Low power operation,-even if not followed by commercial full-power operation, will make infintely more !
I
r difficult and costly the decommissioning of the Shoreham plant if operation is discontinued.
For a description of the decommissioning process and its financial implications, see Ex. 10, John S. Ferguson, " Decommissioning A Nuclear Plant: The Financial Implications", Management Accounting, 9/79.
9.
The NRC hearings on the low power license issue are now scheduled for June 11, 1985.
If the NRC issues a low power license to LILCO in the mistaken belief that Executive Order 1-1985 is valid, or that the County Executive speaks for the County government, or that the County's policy of opposition i
to Shoreham's operation has been changed, the County will suffer the irreparabic injury described herein and in Mr. Latham's affidavit.
10.
It is hard to conceive of a more classic case justifying immediate injunctive relief.
11.
I gave notice pursuant to Sec. 670.3(111) Rules of the Appellate Division, Second Department, to the County Attorney, Martin Bradley Ashare, Esq., at approximately 2:30 p.m. on June 5, i
1985 by telephone, that this application for Article 78 relief and f
temporary stay would be made in the Supreme Court, Hauppauge, before Justice Jack J. Cannavo, at 9:30 a.m.,
June 6, 1985.
6 :
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I informed Mr. Ashare that the application would be joined in by the East End Townships, represented by Stephen B.
Latham, Esq., and that copies of the petitions and supporting l
papers in both proceedings would be available to be delivered to him at 7:30 a.m. on June 6, 1985.
We agreed to meet at the Sea Coral Diner in Hauppauge at 7:30 a.m., at which time such papers will be served upon Mr. Ashare l
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Dated:
June 5, 1985 I
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l SUPRE11E COURT OF THF STATE OF NEW YORK COUNTY OF SUFFOLK
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_____________________________________x i
In the Matter of the Application of WAYNE PROSPECT, GREGORY J. BLASS, JOHN J. FOLEY, STEVEN ENGLEBRIGHT, JAMES 110RGO, JOSEPH RIZZO, PHILIP NOLAN and SONDRA
- BACHETY, Index No.:
Petitioners, for a Judgment under Article 78 of the Civil Practice Law and Rules PETER F. COHALAN, County Executive of the County of Suffolk, Respondent.
_____________________________________x PETITIONERS' !!El!ORANDUll OF LAU IN SUPPORT OF MOTION FOR PRELIllINARY INJUNCTION
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June 5, 1985 REILLY, LIKE & SCIINEIDER 200 W.
.\\ lain St., Box 218 l
Babylon, New York 11702
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LESTER B. LIPKIND 2 *bf Babylon, New York 11702 12 Grove Place ZI[ [
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I.
INTRODUCTION l
2 1.
"Alea jacta est...the die is cast.
Those were Caesar's words as he crossed the Rubicon".
Thus spoke Respondent 1
County Executive Peter F. Cohalan in an interview with~ Newsday following his signing of the Executive Order directing Suffolk Police Commissioner De Witt Treder and Planning Commissioner Lee Koppelman, to prepare for and assume command and control of an evacuation drill based on a LILCO plan of evacuation previously denounced by this Court as a private usurpation by LILCO of governmental functions (Newsday, May 31, 1985, p. 5).
2.
One would be hard put to select a better metaphor than the autocratic Roman Emperor Caeser to illuminate Respondent's i
illegal abuse of his powers as County Executive and flagrant dis-regard of binding legislative resolutions enacted by the Suffolk County Legislature with the initiative, strong support, concurrence r
and approval of Respondent as County Executive.
l 3.
Less than two months ago, this Court eloquently instructed the Respondent and LILCO of the philosophy of our l
founding fathers in creating our government - a) this is a
- ~
government of law and not of men or private corporations; b)-
L the powers of government are limited; c) government only enjoys c
p_
sLfiduciary. power _ entrusted _to_it.by_the. community l,_and_is,__z l
r-therefore, accountable to the community (Cuomo v. Long Island
~.
1 Lighting Company, New York Law Journal,-April,19,.1985,JExu4,
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3; 3
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~gn annexed to the complaint).
Respondent's conduct. mocks.the:
Court's admonition that this is a government of laws and not men and breaches the fundamental constitutional principle of the 7
separation of powers.
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II.
LIMITATIONS ON THE EXECUTIVE POWER t
A.
Historical Curbs on Abuse Of The Executive Prerogative i
l 4.
This is not the first case in which' a Court is called upon to review the attempt by a governmental Executive acting as if he were a latter day absolutist Stuart royal monarch to use the Executive Order as a means of exercising power not granted to him as a means of contravening or evading the legislative will.
5.
As one of the nation's leading legal scholars demonstrates in his review of the executive power, the courts will not contenance executive lawlessness.
"Much of English constitutional history has revolved around the effort to subject the prerogative of the Crown to the law of the land...
In Stuart theory, the royal prerogative meant nothing less than the inherent power of the king to do whatever he-thought-necessary for the good of the realm...
The extravagant pretentions of the Stuarts were, of course, obliterated by two revolutions..."
y "The Framers of the American constitution were familiar both with the repudiation of_the:Stuart_
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prerogative which was conceded in_the Crown after.
the Act of settlement...
Certainly, it was the-
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the executive which they were creating in accordance with the claim for which Charles I lost his life and James II his throne."
Bernard Schwartz, A Commentary on the Constitution of the United
's States, The Powers of Government, Volume Two, The Powers of the President, the MacMillan Company, 1963, pp. 56, 57.
B.
Steel Seizure Case 6.
The problem of executive prerogative or inherent power, which has been invoked by the defendant in justification-of his executive order, was given a detailed consideration-by the United States Supreme Court in Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579 (1952).
President Truman issued an executive.
order directing the Secretary of Commerce to-seize and operate the plants and facilities of the nation's steel industry.
The President had acted in order to head off a steel strike that was to have begun the next day.
The seizure, he declared, was n'ecessary-in order to ensure the continued availability of steel and national defense and the economy which a steel stoppage wouldLentaill.
~
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President Truman's action posed directly the question of executive
- i.
prerogative under Article II of the-U.S. Constitution for he had, acted without any specific authorization, statutory or otherwise'.
y The Court, with a 6 man majority, held the steel seizure executive order invalid.
The Court rejected the notion of inherent power-.
.in the President.
The opinion of the Court delivered by Justice
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act without Congressional authority in an area where Congress can clothe him with authority to act.
In this case, since the Congress could have permitted the seizure of private property for public use, the President lacked the power to seize the steel mills without statutory authorization.
The President possesses no inherent authority either as Chief Executive or Commander in Chief to take possession of private property in order to keep labor disputes from stopping production:
"This is a job for the Nation's lawmakers".
343 U.S. at 587.
7.
Justice Black's rejection of inherent authority in the President to seize the steel industry was based on the doctrine of the separation of powers.
In the view of four other majority justices, the Presidential seizure was incompatible with the expressed will of the Congress.
The conflict between the President's action and the Congressional will arose out of the provision by the Congress in the Taft-Hartley Act.of 1947 of a fact-finding injunction procedure alternative to seizure, which the President could have followed to deal with the threat of a steel strike.
Furthermore, at the time when the Taft-Hartley Act was passed, the Congress specifically rejected a proposal to empower the President to seize any plant, mine or facility in which a threatened work stoppage would, in his judgment, a-imperil the public health or security.
Thus, the Congress, by
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f In short, Congress "has expressed its will to withhold this power from the~ President as though'it said so in so many words."
343 J
U.S. at 602.
Thus, where Congress has laid down specific procedures to deal with.the emergency confronting the President, he must follow these procedures.
343 U.S. at 662.
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C.
Principles Applicable To Exercise Of Executive Power 8.
The Steel Seizure case stands for the propositions that:
a.
There is no inherent executive prerogative which is independent of a constitutional or statutory source.
b.
' Executive prerogative is subordinate to statutory or constitutional law and may
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9.
Since the constitution is based on the principle of separation of powers, it is beyond dispute that the' executive power may not be exercised so as to usurp or encroach upon the e
functions of the legislative branch.
A.
The principles of separation of powers and that the Executive may not through an executive order invade the legis-lative sphere, are well-established as the pattern of government in New York State.
In Matter of Gottlieb v. Duryea, 38 A.D.2d 634, 635, 326 N.Y.S.2d 889, the Court stated:
"The fundamental constitutional principle of the separation of powers among the three depart-ments of government is included by implication in the pattern of government adopted by the State of New York..., it being a basic part of the organic law that each department should be free from inter-ference in the discharge of its own functions and peculiar duties, by either of the others..."
s.
B.
In County of Oneida v. Berle, 49 N.Y.2d 515, 523, 427 NYS2d 407, 412, the Court of Appeals reaffirmed that the laws and policies of the State are established by the lawmaking powers, not by officers acting solely on their own ideas of sound public policy, however excellent such ideas may be, and that however laudable its goals, the executive branch may not override enactments which have emerged from the lawmaking process.
On the. contrary, the
, ~~
executive branch is required to implement policy declarations of the r-
-Legislature until vetoed or judicially invalidated.
Ib:
C.
In Rapp v. Carey, 44 N.Y.2d 157, 404 N.Y.S.2d, 565, J.
b:
375 N.E.2d 745, the Court of Appeals was faced with a, situation of I
[i.
a Governor invading the legislative domain through the device of p.-
-:an executive order.
In that case, former Governor Carey issued j}
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disclosure statements by certain State employees, prohibited service in political party office, and regulated outside activity and 4,
employment.
The purpose of the order, io., promoting ethics in government was, laudable.
The scheme itself was reasonable, and if t
enacted by the Legislature could have been upheld.
The problem f
was that the Legislature had not so acted and through the executive order the Governor was invading the' legislative sphere.
In the majority opinion, former Chief Judge Breitel instructed:
"There are... limits to the breadth of executive power.
The State Constitution provides for a distribution of powers among the three branches ~ of government... This distribution avoids excessive concentration of power in.any one branch or in any one person.
Where power is delegated to one person, the power is always guided and limited by standards.
In fact, even the Legislature is powerless to delegate the legislative function unless it provides adequate standards... Without such standards there is no government of law, but only government by men left to set their own standards, with resultant authoritarian possibilities" (Rapp v. Carey, 44 NY2d 157, supra, 162, 404 NYS2d 665, 375 NE 2d 745.)
"The crux of the case is the principle that the Governor has only those powers delegated to him by the Constitution and the statutes",(supra, 106, 404 NYS2d 565 375 N.E.2d 745).
"Under our system of distribution of powers with checks and balances, the purposes of the executive order however desirable, may be achieved only through proper means.
No single branch of government may assume a power, especially if assump-tion of that power might erode the genius of that system.
The erosion need not be great. 'Rather should we be alive to the imperceptible but gradual increase in the assumption of power properly belonging to another department" (supra m
~ ~ ~ - -- 167', 404~NYS2d-365,-375 N.E.2d 745).
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4 a
l In its recent opinion in Subcontractors Trade Ass'n i>
Court of Appeals held that an executive order and its implementing rules and regulations which~ mandated a share of construction contracts.
l.
i awarded by the City be given to locally based enterprises was beyond the l Mayor's. functions'and general charter-conferred powers and constituted an unlawful usurpation of the legislative function.
The Court said:
i "We note, however, that the general power to enter into contracts which is bestowed upon the executive branch of government ordinarily cannot serve as a basis for creating,a remedial plan for which'the executive never received.a grant of legislative power..."
j 1
" Plaintiffs do not challenge'these general powers but, rather, assert that what the Mayor did by way of Executive Order;No. 53 goes well beyond his executive powers and actually-creates, without having been granted authority to do so, a l
program at odds with existing legislative policy.
We agree.
In two similar cases, Matter of Fullilove v. Beame, 48 N.Y.2d 376, 423 N.Y.S.2d.
144, 398 N.E.2d 765, supra and Matter of Broidrick
- v. Lindsay, 39 N.Y.2d 641, 385 N.Y.S.2d 265, 350 N.E.2d 595, supra, we struck down executive action i
which went beyond enforcement of legislative enact-ments by prescribing remedial devices not-embraced by- -
stated legislative policy.
In those cases, the l~
Executive Orders promulgated purported.to-enforce legislative enactments prohibiting discrimination in employment.
However, because the executives L,
lacked a grant of legislative authority to adopt
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affirmative action plans, the orders requiring-affirmative action'were declared invalid. LThe y
V same result must. follow in this case..."
"However. desirable the ostensible purpose may be, there is. simply no legislative authority' m
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_ _ _, permitting the. Mayor to unilaterally initiate this
~In the absence of such' specific authority,the' executive-action must be deemed an unlawful usurpation of the.
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legislative function."
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10.
If the enumerated limitations on executive 2
prerogative have cut down the royal Stuartist doctrines and bind the great and powerful Presidents and Governors of the United States, they should apply without ques' tion to the powers of a lesser chief t,
executive officer, such as the' Respondent.
D.
The Invalidity of the Respondents' Executive Order 11.
Judged by these principles, the court must invalidate and annul Respondent's Executive Order.
I:
-12.
First, there is.no inherent power in the Respondent to issue an Executive Order nullifying the Charter simply because he is the chief executive officer of the County. The Charter clearly sets forth the boundaries separating the powers of the County Executive and County Legislature.
Respondent transgressed these lines and
. breached the principle of separation of powers which is imbedded therein..
13.
Second, Respondent's Executive Order conflicts with and violates'the binding legislative resolutions specifically prohibiting him from doing what he attempts to do in his Executive
-Order.
The analogy to the Steel Seizure case is clear.
In that s.' -
case, Congress forbade.the President from seizing the steel mills cand provided' an alternative procedure for dealing with the subject.
rp s c w
[.
~Ttius, the~ Court Ful'd thW PFe~s~ident's sxeEutive order seizure to be
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[i,ncompatiblewiththeCongressionalwill.
Here, the County
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Legislature specifically prohibited the County Executive from participating in any RERP and, specifically rejected LILCO's plan.
Thus, Respondent's Executive Order is clearly incompatible with and designed to thwart the legislative will.
E.
The Inapplicability of Article 2-B of the Executive Law 14.
Third, the Respondent's invocation of Article 2-B of the Executive Law, as the fount of his unilateral authority is sham, and a cynical disregard of the decision of this Court in which it held that the power to carry out RERP activities are governmental and have been solely conferred upon the State and its political subdiv) cions.
By the terms " governmental", and
" political subdivisions", the Court clearly meant not the County Executive alone, but the government of Suffolk County, to wit, the county executive and the county legislature, acting together in accordance with the requirements of the Suffolk County Charter.
15.
A reading of the provisions of Article 2-B, Executive Law bears out this interpretation and refutes the Respondent's claim that they empower him to disregard the County Legislature's resolutions on the subject of Shoreham.
16.
Contrary to Respondent's assertion in his Executive Order, Article 2-B does not authorize the actions the Respondent directed to be taken in his Executive Order. Article
_~
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1 t
s'
2-B, 520 provides in relevant part:
"820.
Natural and man-made disasters; policy; definitions 1.
It shall be the policy of the state that:
local government and emergency service organizations a.
continue their essential role as the first line of defense in times of disaster, and that the state provide appropriate supportive services to the extent necessary;
-b.
local chief executives take an active and personal role in the development and implementation of disaster preparedness programs and be vested with authority and responsibility in order to insure the success of such programs; I
state and local natural disaster and emergency c.
response functions be coordinated in order to bring the fullest protection an'd benerit to the people; d.
state resources be organized and prepared for immediate effective response to-disasters which are t
beyond the capability of local governments and emergency ser,vice organizations; and state and local nlans,. organizational arrangements, le.
and response capaoility required to execute the provisions of this' article shall at all times be the most effective that current circumstances and existing resources allow.
2.
As used in this article, the following terms shall have the following meanings:
(
" disaster" means occurrence or imminent threat a.
l-of wide spread or severe damage, injury,oor loss of life or property resulting from any natural or man-made causes, including, but not limited to, fire, flood, earthquake, hurricane, tornado, high water, landslide, mudslide, wind, storm, wave action, volcanic activity, epidemic, air contamination, blight,
' drought, infestation, explosion, radiological accident or water contamination....
- -3
" municipality" means a public corporation as c.
defined in subdivision one of section sixty-six e
.of the general construction law an_d a-special district as-defined in subdivision sixteen of section one hundred-two of'the real property tax law."
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.1 17.
Respondent relies on B20.1b as empowering him _
~
to' disregard the prior duly enacted resolutions of the' County
,_u.-....--
Legislature.
However, no such authority is granted him. 820.lb simply states the policy tha't local chief executives should take an active role in the development of disaster preparedness programs to "be vested with authority and responsibility in order to insure the success of such programs".* This section does not repeal or do away with~the provisions of the Suffolk County Charter which define the respective authority and responsibility of the county executive and county legislature. Respondent, as County Executive,.is vested only wi,th such authority and responsibility with regard to disaster preparedness associated with Shoreham as have been given him by the County Legislature in the enumerated resolutions (Ex.'s 1, 2 and 3).
18.
These resolutions accomplished precisely what
.s Article 2-B requires be done by local government.
They established the policy of the County of Suffolk after careful deliberation in which the Respondent County Executive actively participated, to wit, that evacuation was impossible, and that no RERP was possible, and that none should be developed.
The State of New York concurred with the County's conclusions and policy.
In short, no Shoreham disaster preparedness program should be undertaken because none could be developed.
The policy statement contained in 920.lb must be read together with the specific provisions of 6823 and 24 with regard to development and implementation of disaster pre.oaredness programs.
Furthermore, a local chief executive officer lacks any authority to declare an emergency in a radiological situat!.on, but must request the governor to do so. (E24.1)
The governor alone has the authority to make such declaration. (H28)
...e ltN
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l g 19 The provisions y
is not the~ Respondent alone, bu~t co^nty governof A
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County Executive s
u at it acting with approval of ment (i.e., the in the manner prescribed by the S the County Legislatur is granted the power t uffolk County Charter) e preparedness programs o develop and implement d, which isaster 20 E20.la government performs th sets forth as defense in times e " essential rolestate policy that local of disaster".
as the first line
.3 resodrces to be to disasters which amarshalled for immediate of
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state re beyond effective the response g
capability of local gove Q
21
- rnments, d
clear intent that it is thThroughout Article 2 B y
the a
its provisions demonstr institution charged with the County Executivee municipality or lo and not ate is g
governmental disaster preparedness acting unilaterally that 820.2.c - definition
, authority and responsibilit
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821.3.f actions to beof " municipality"
- jd_l, y.
n 2 A't 1j preparedness taken by state disast
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E22.2.a(4) stateunable to manage local di commission if municipalit er saster y
operations g
to municipalitiesagency technical assist 922. 3.a(9) & fi23. 7b(9) 8>Id(
ance gg '-
i in disaster responsestate and local gove M@s i
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923.1 each County (su h ntal personnel operations o H to prepare disasteras Suffolk
$Ijh c
j preparedness plansCounty) authorized
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823.6 - all plans.for disaster preparedness developed by local governments shall 1
be. submitted to the Commission B23.b(15) - procedures under which the County or other political subdivision will be used in the event of a disaster 823.b(17) - continued operation of governments of political subdivisions F.
The Respondent's Executive Order Cannot be Justified as a Local Emergency Order
}
22.
E24 empowers the Chief Executive of a county to j
promulgate local emergency orders notwithstanding any inconsistent j
pr'ovision of law under certain defined circumstances.
These are:
. i.
First, there must be an event of disaster, rioting, catastrophe or similar emergency with g
a the territorial limits of the County; or 2#
~
the Chief Executive must have a reasonable
- Second, apprehension of immediate danger thereof; and
/
Third, the Chief Executive must make a finding that the public safety is imperiled thereby.
If these conditions are satisfied, he may proclaim a local state of emergency within such county and following such proclamation and f[
[
during the continuance of such local state of emergency, he may pro-V mulgate local emergency orders to protect life and property or to 6
bring the emergency situation under control, s
?
23.
There is clearly no basis for treating Respondent's Executive Order as a local emergency order because the requirements of 924 for doing so are not present here and, in any event, he has 3
no such unilateral power if the emergency is not radiological. 924.1.
u,
JI
I G.
Defendant Has no Authority on the Basis of Article 2-B to use Local Governmental Resources as Directed in his Executive Order 3
24.
Upon the threat or occurrence of a disaster, 825 authorizes the chief executive to use the personnel and other resources of his political subdivision in such manner as may be necessary or appropriate to cope with the disaster or any emergency resulting therefrom.
b 25.
Again, in the instant case, there being no i-threat or occurrence of a disaster present, the Respondent derives no authority from Article 2-B to issue his Executive
/
Order directing County personnel to take action prohibited by the enumerated resolutions, and, in any event, he has no such I
unilateral power if the disaster is radiological.
s' Ij III.
STANDARDS FOR GRANTING PRELIMINARY INJUNCTION SATISFIED
.i l?
26.
In order to be entitled to a preliminary injunction, the moving party must demonstrate (1) a likelihood of success on t) j the merits, (2) irreparable injury to him if the relief is not i
l]
granted, and (3) a balancing of the equities in his favor (see Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Coro.,
70 A.D.2d 1021, 1022, 418 N.Y. S2d 216, app. dsmd. 48 N.Y.2d 654,
[
396 N.E.2d 400; Picotte Realty v. Gallery of_ Homes, 66 A.D.2d 978, 412 N.Y.S.2d 47).
, h
l 27.
Petitioners satisfy these standards.
Respondent's
-ultra vires Executive Order and his breach and attempted nullification _-
s.
of the_ Charter and duly enacted resolutions of the County Legislature make it likely that petitioners will succeed on the merits.
28.
Respondent has compromised the County's govern-mental institutions by his attempt to nullify the County Legislature's powers and thereby caused injury to the democratic process.
[
29.
Respondent has also unilaterally misrepresented, changed and vitiated the established policy of the County opposing the operation of the Shoreham plant in violation of the established law and policy of Suffolk County, thereby increasing the risk to the health and safety of the people of Long Island.
f 30.
The balance of equities favor petitioners here.
There is no redeeming consideration which justifies Respondent's
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naked usurpation of power.
Nor is there any possible equity which justifies Respondent in misrepresenting, vitiating and arrogating to himself the determination of the County's policy with regard r
to Shoreham, t
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i CONCLUSION y
~
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jI Once again, this Court'is asked to review and provide 0
a remedy for an abuse of power.
When LILCO attempted as a private corporation to usurp governmental power this Court had no hesitation in striking down the act of hubris.
Now we have 1
a County Executive seeking to circumvent the will of the i
County Legislature and to arrogate to himself in the fashion L
[
of autocratic rulers the determination of the County policy with regard to the operation of the Shoreham plant - a matter of profound concern to the people of Long Island and which r
j will irrevocably affect their future well being.
The Court
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should now strike down Respondent's act of executive lawlessness a
{i which threatens the integrity of Suffolk County's governmental institutions and grant the relief requested by Petitioners.
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Res e lly submitte,,d, f.
REL LY, LIK' & SCHNEID R 200 W. Mai St.,
Box 218 e
- Babylon, ew York 11702 (516) 66 -3000 LESTER B. LIPKIND 12 Grove Place Babylon, New York 11702 (516) 669-3421 M
Dated:
June 5, 1985 g
Babylon, New York i 1
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK
X In the Matter of the Application of THE TOWN OF SOUTHAMPTON, THE TOWN OF EAST HAMPTON, THE TOWN OF SOUTHOLD, and THE TOWN OF RIVERHEAD, Petitioners, VERIFIED PETITION for a Judgment under Article 78 of the Civil Practice Law and Rules Index No. 85-10$ 20 PETER F.
COHALAN, County Execu-tive of the County of Su f folk,
Respondent.
X TO THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF SUFFOLK The Petition of the Town of Southampton, et. al, respectfully shows:
1.
Petitioners ask this Court to annul Executive Order 1-1985, issued by respondent on May 30, _198 5 and attached hereto as Exhibit 1, as a) in violation of Suffolk County Resolutions 262-198 2, 4 56-1982 and 111-1983 (attached hereto as Exhibits 2, 3 and 4 respectively); b) Articles II and III (Sections 202, 213, 219, 223 and 303 of the Suffolk County Charter (hereinafter " Charter"), c) S153 of the County Law; d)
S23 of the Executive Law (Article 2-B); and c) as in excess of respondent's jurisdiction under Article IX S2 of the Constitution of the State of New York.
E
a s
Petitioners further ask this Court to enjoin respondent and his agents from taking any action or expending any County resources in contravention of the aforesaid Resolutions, as set forth in the Order to Show Cause.
2.
Petitioner TOWN OF SOUTHAMPTON is a municipal corporation duly established under the Laws of the State of New York.
It was formed for the purpose of exercising such powers of local government in the administration of public affairs as have been or may be conferred upon it by the Constitution and Laws of the State of New York, including the exercise of the police power to protect the lives, health and safety of its citizens.
The Town of Southampton consists of approximately 123 square miles on what is known as the t
" South Fork" of Long Island, which is, at its narrowest point, about 3/4 of a mile in width.
The Town has a year-round population of approximately 45,000 people.
During a period between May and September each year, the population of Southampton approaches 100,000 people and I
many more visit the Town on a daily basis as
" t ra ns ie nt s".
3.
Petitioner TOWN OF EAST HAMPTON is a municipal corporation duly established under the Laws of the State i
of New York.
It was formed for the purpose of h b J
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exercising such powers of local government in the administration of public affairs as have been or may be conferred upon it by the Constitution and Laws of the State of New York, including the exercise of the police power to protect the lives, health and safety of its citizens.
The Town of East Hampton consists of approximately 64 square miles and has a year-round population of approximately 15,000 people.- nuring a period between May and September each year, the 3
population of East Hampton approaches 60,000 people and many more visit the Town on a daily basis as
" transients".
4.
Petitioner TOWN OF SOUTHOLD is a municipal corporation duly established under the Laws of the State of New York.
It was formed for the purpose of exercising such powers of local government in the administration of public af fairs as have been or may be conferred upon it by the Constitution and Laws of the State of New York, including the exercise of the police power to protect the lives, health and safety of its citizens.
The Town of Southold consists of approximately 69 square miles and has a year-round population of approximately 19,500 people.
During a g
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period between May and September each year, the population of Southold approaches 40,000 people and many more visit the Town on a daily basis as " transients".
5.
Petitioner TOWN OF RIVERHEAD is a municipal corporation duly established under the Laws of the State of New York.
It was formed for the purpose of exercising such powers of local government in the administration of public af fairs as have been or may be conferred upon it by the Constitution and Laws of the State of New York, including the exercise of the police power to protect the lives, health and safety of its citizens.
The Town of Riverhead consists of approxi-mately 78 square miles and has a year-round population of approximately 23,000 people.
It is the western most 4
Town on the north fork of Long Island and the LILCO property upon which the Shoreham plant is located is adjacent to the western boundary of the Town of Riverhead.
During a period between May and September each year, the population of Riverhead approaches 45,000 people and many more visit the Town on a daily basis as
" transients".
6.
Petitioners are four of the ten Towns located within the County of Suffolk.
Proceedings are presently s
5
-4
A 5
o I.
t
_ pending before the Nuclear Regulatory Commission (NRC) i on the application by the Long Island Lighting. Company
( LI LCO), a New York electric and gas public service corporation utility, for a license permitting it to operate an 820 mw nuclear power electric generating l
facility on property located at Shoreham in the Town of Brookhaven, County of Suffolk and State of New York.
LILCO has applied for a low power license which, if granted, would permit LILCO to operate Shoreham causing it to become irrevocably radioactive and contaminated.
Portions of Southampton and Riverhead are located within 10 miles of the Shoreham nuclear power plant
("Shoreham").
5.
A significant portion of Petitioners' land area c
and of their population is located within the emergency planning area considered and evaluated by Suf folk County as set forth in Exhibit 4.
By the lawful adoption of Exhibit 4, the County of Suffolk has determined that the i
health, safety and welfare of Southampton residents could not be protected in the event of a serious accident at Shoreham and that petitioners' residents could not be safely evacuated in the event of such an f 3
e r
e
'ccident (see Exhibit 4).
6.
Respondent Peter F.
Cohalan is the duly elected County Executive of the County of Suffolk.
7.
On March 23, 1982, the Suf folk County Legislature passed a resolution which was approved by the respondent as County Executive on March 25, 1982, authorizing the Suffolk County Planning Department to prepare a County Radiological Emergency Response Plan
("RERP") in connection with the Shoreham operating licensing proceedings, to serve the interests of safety, health and welfare of the residents of Suffolk County (Resolution 262-82, a copy of which is annexed hereto and made part hereof as Exhibit 2).
Said resolution provided:
c
" RESOLVED, that said plan shall not be operable and shall not be deemed ade-quate and capab,le of being implemented until such time as it is approved by the Suffolk County Legislature; and RESOLVED, that only after said plan is approved by the Suffolk County Legis-lature shall it he submitted to the Federal Emergencf Management Agency and the Nuclear Regulatory Commission for purposes of any findings, determinations, rulings, reviews or hearings by such Federal agencies."
8.
On May 18, 1982 the Suffolk County Legislature l i f
o passed a resolution approved by the respondent as County Executive on May 19, 1982 establishing the RERP policy of the County of Suffolk.
(Resolution 456-82, a copy of which is annexed hereto and made part hereof as Exhibit 3.)
Said resolution approved:
"WHEREAS, Suffolk County's Emergency Planning Task Force, composed of nation-ally recognized experts drawn from a range of pertinent disciplines is now con-ducting a detailed planning effort in order to attempt to develop a viable radiological emergency plan for Suffolk County; and WHEREAS, The Long Island Lighting Com-pany, in an unwarranted and arrogant act, has gone beyond its powers as a private corporation in an attempt to usurp the rightful powers of Suffolk County by sub-mitting county planning resource material to the New York State Disaster Prepared-ness Commission for its approval as the c
official radiological emergency response plan for Suffolk County; and WHEREAS, said planning resource material developed in part by county personnel, is preliminary data which in no way constitutes the Suffolk County approved RADIOLOGICAL EMERGENCY RESPONSE PLAN and will not in the future constitute such County plan; and WHEREAS, Suffolk County will submit its RADIOLOGICAL EMERGENCY RESPONSE PLAN to the New York State Disaster Preparedness i
Commission only when that plan has been fully prepared ant %pproved by Suffolk i
County and is r*areby integrated with the planning @t or 2 of both LILCO and New York St fr ;.'.refore, be it
, l
s RESOLVED, that Suffolk County hereby established the following Radiological Emergency Response Planning Policy:
Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Power 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 radio-logical emergency response plan for the Shoreham Nuclear Plant unless that plan has been the subject of at least two public hearings, one ta be held in River-head and one to be held in Hauppauge.
Suffolk County shall not assign funds or personnel to test or implement any radio-logical emergency response plan for the Shoreham Nuclear Plant unless that plan has been approved, after public hearings, by the Suf folk County Legislature and the County Executive."
(emphasis added) 9.
The County Planning Department, in accordance 6
with the legislative directive, submitted a RERP in December 198 2.
A number of public hearings were held by the County Legislature to consider the RERP in January, 1983.
The Suf folk County Legislature on February 17, 1983, adopted a resolution, which was approved by the respondent County Executive on February 22, 1483, a copy of which is annexed hereto and made part hereof as Exhibit 4, pursuant to which it was decided not to approve, adopt or implement any RERP f or Shoreham.
The reason given for this action was that: ;
n
(
"[Since] no local radiological emergency response plan for a serious nuclear acci-dent at Shoreham will protect the health, welfare, and safety of Suffolk County resi-dents.
. the County's radiological emer-gency planning process is hereby terminated, and no local radiological emergency plan for response to an accident at the Shoreham plan shall be adopted or implemented.
[Since] no radiological emergency plan can protect the health, welfare and safety of Suf folk County residents and, since no radiological emergency plan shall be adopted or implemented by Suffolk County, the County Executive is hereby directed to assure that actions taken by any other governmental agency be it State or Federal, are consistent with the decision mandated by this resolu-tion" (Resolution 111-1983)."
(emphasis added) 10.
The Governor of New York, after reviewing the results of a study by the Marburger Commission, an independent committee appointed by the Governor to study the Shoreham situation, announced that no RERP for Shoreham would be adopted or implemented by th'e State.
11.
Following the County's refusal to adopt a RERP, LILCO, purportedly relying upon New York State Executive Law, Article 2-B (State and Local Natural and Man-Made Disaster Preparedness), submitted its own plan to the NRC, designated as "The LILCO Transition Plan".
The LILCO Plan describes in detail the actions which LILCO proposes to take in the event of a radiological emergency at the Shoreham facility.
i'
[ L
o
(
e 12.
Thereafter, the County of Suffolk, the State of New York, and the Town of Southampton commenced separate declaratory judgment actions in the Supreme Court, Suffolk County against LILCO, seeking a declaration that LILCO does not have the legal authority to carry out its Plan.
13.
On February.20, 1985, the Supreme Court of Suffolk' County, in a decision by Justice Ililliam R.
Geiler, a copy of which is annexed hereto as Exhibit 5, concluded that LILCO's plan constituted a usurpation by LILCO of governmental powers and directed that judgment be entered in favor of the plaintiffs in that action.
14.
On April 17, 1985, the Atomic Sa fety and Licensing Board
(" Licensing Board") of the Nuclear
(
Regulatory Commission ("NRC") which had held extensive hearings on LILCO's Transition Plan determined that LILCO did not have the legal authority to implement its Plan and that, accordingly, LILCO did not have an implementable, comprehensive and effective emergency response plan for Shoreham.
15.
The legal and practical effect of Judge Geiler's decision and the Board's Partial Initial Decision was to unequivocably unhold and endorse the m
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~~
police power responsibilities and determinations of Suffolk County as set forth in Exhibits 2, 3 and 4.
16.
On May 30, 1985, defendant signed and issued Executive Order 1-1985 (Exhibit 1) which, inter alia, purported to commit "whatever resources of the government of the County of Suffolk are necessary" to review and evaluate the LILCO Transition Plan; to conduct a " test and exercise" of that Plan; and to direct County of ficials to " assume the function of command and control with implementation of the police powers of the County of Suf folk over the conduct of caid test and exercise".
17.
As exemplified by Exhibit 6 attached hereto, upon information and belief, Executive Order 1-1985 has i
been distributed to virtually all federal officials and agencies presently involved in proceedings concerning the issuance of a low power license for Shoreham and a subsequent full power license.
18.
Upon information and belief, Executive Order i
1-1985 is being represented to these officials and agencies, as a new County policy on emergency planning.
Upon information and belief, these representations have been and are being made by respondent and his agents as i.
1
r e
well as by LILCo.
AS AND FOR A FIRST CLAIM FOR RELIEF 19.
The issuance of Executive Order 1-1985, and the resulting actions and expenditures by. County officials, which it has caused and will immediately cause to take place, are in clear violation of the County Resolutions attached as Exhibits 2, 3 and 4.
On the basis of the foregoing, Executive Order 1-1985 must be rescinded, annulled and set aside.
AS AND FOR A SECOND CLAIM FOR RELIEF 20.
The Suffolk County Charter clearly delineates the line of authority between the County Legislature and the County Executive.
The Suffolk County Charter entrusts to the County Legislature:
(a) the i
determination of County policies; (b) the powers of local legislation and appropriation and (c) the exercise of such other functions and powers as may be granted or assigned to it by such Charter or by State or local law (Charter SS201, 202, 213).
21.
Local laws and resolutions of the Suf folk County Legislature may not be enacted except in accordance with the procedures and requirements prescribed in said Charter, and require the affirmative i
s vote of:
(a) not less than a majority of the total membership of the County Legislature; or (b) two-th i rd s of the total membership of the County Legislature if, prior to passage, the County Executive certifies as to the necessity of its immediate passage.
(Charter SS219-222).
22.
No local law or resolution, other than a resolution relating to procedure, may take effect until it has been approved by the County Executive and there has been compliance with the procedures and requirements of the Charter.
(Charter S S222-223).
23.
Respondent Cohalan is charged with the responsibility of taking care that the laws applicable to the County and the powers and duties assigned to him t
-by the Charter or delegated to him by the County Legislature, are faithfully executed and performed consistent with law.
(Charter SS303, 304).
24 Exhibits 2, 3 and 4 clearly set forth the law of Suf folk County with regard to emergency planning for Shoreham.
Respondent's obligation under the County j
I Charter (S303(d)] is to:
take care that the laws applicable
.to the county and that local laws and l
resolutions of the county are faithfully executed.
(emphasis added)
I i
TE 1
s 25.
On the basis of the foregoing, Executive Order 1-1985 must be rescinded, annulled and set aside.
AS AND FOR A THIRD CLAIM FOR RELIEF 26.
As provided by ' County Law S153, local laws and resolutions are legislative enactments.
Resolutions are effective when adopted, and only the County Legislature has the power to amend, repeal or supersede a resolu-tion after its adoption.
27.
Executive Order 1-1985 purports to supersede and annul the County policy and legislation as set forth forth in Exhibits 2, 3 and 4.
Upon informa tion and belief, Executive Order 1-1985 was promulgated and issued by respondent by executive fiat, without legislation duly enacted by the County Legislature, in violation of County Law S153.
28 On the basis of the foregoing, Executive Order 1-1985 must be rescinded, annulled and set aside.
AS AND FOR A FOURTH CLAIM FOR RELIEF 29.
Respondent Cohalan bases his jurisdiction for issuing Executive Order 1-1985 on the " power vested in ne under Article 2-8 of the New York State Executive Law (See Exhibit 1).
30.
Although Respondent Cohalan does not reference
=
any provision of Article 2-B in his Executive Order, he apparently relies on the general statement of policy set forth in S20(1)b.
However, that section provides only that:
local chief executives take an active and personal role in the development and implementation of disaster preparedness programs and be vested with authority and responsibility in order to insure the success of such program.
31.
This general policy, however, is specifically enacted through the provisions of $23.
Section 23(1) provides:
Each County.
is authorized to prepare disaster prepareness plans.
(Emphasis added.)
The remaining provisions of S23 delineate the content and objectives of these plans, which encompass the t
emergency planning exercises, tests and implementation purportedly authorized by Executive Order 1-1985.
32.
The distribution of authority set forth in Article 2-B does not grant to the respondent the powers invoked by him.
Article 2-B specifically authorizes each County to plan for disasters and delegates authority to local officials, such as respondent, to effectuate these functions, if and when plans are adopted by County government.
33.
In his decision, Judge Geiler issued several t
j _
s I
i.
~
rulings of law with regard to the exercise of the State's police power and the development and I
implementation of radiological emergency plans under Article 2-R of the Executive Law.
Among Judge Geiler's legal conclusions were the following:
a)
. municipal corporations may only exercise the police power which the State Constitution or the State Legislature confers upon them.
(citations omitted, emphasis supplied);
b)
" Article 2B of the Executive Law involves the distribution of powers held by the Executive Branch of State Govern-ment Thus, this Statute creates a state agency, the Disaster Preparedness Commission (DPC) to coordinate State and local emergency responses.
This legis-lation authorizes each county and city to plan for disasters and delegates autho-rity to State and local officials to effectuate these functions."
(emphasis C
supplied; at pp. 10 and 15) 34.
Executive Law Article 2-B provides no authority to the County Executive to take unilaterally the actions taken and directed an Executive Order 1-1985.
It particularly provides no authority for him to review, test and implement an emergency plan developed entirely by a utility.
35.
No emergency plan for Shoreham has been developed or adopted by Suffolk County.
The County legislature and Respondent have specifically adopted [
~
- e g
legislation providing that no such plan is capable of being developed (see Exhibit 4).
Accordingly, Respondent's attempt to test and implement the Transition Plan prepared by LILCO is in excess of his jurisdiction and in violation of Article 2-B of the Executive Law.
On the basis of the foregoing, Executive Order 1-1985 must be rescinded, annulled and set aside.
AS AND FOR A FIFTH CLAIM FOR RELIEF 36.
The development and implementation of an emergency plan is an exercise of the State's police power.
The police power can only be exercised by State and local governments.
37.
Local governments are authorized to exercise the police power pursuant to Article IX G2 of the t
Constitution of the State of New York.
This consti-tutional power is allocated within the branches of County government by the Suf folk County Law, and Article 2-B of the Executive Law.
The prepa ration and adoption of emergency plans are police power functions that have not been delegated to the County Executive for his unila teral action.
They have been reserved to County l
government as a whole.
38.
Executive Order 1-1985 is in excess of the
=
respondent's jurisdiction established by the doctrine of separation of powers.
On the basis of the foregoing, Executive Order 1-1985 must be rescinded, antulled and set aside.
AS AND FOR A SIXTH CLAIM FOR RELIEF 39.
The petitioners have never surrendered to the County of Suffolk the police power functions delegated to the Towns by the State Constitution.
None of the j
petitioners has ever held the necessary referendum i
required by County Charter 51207 to establish County police districts within their borders.
Thus, each of the petitioners has retained their own Town police i
department in an exercise of the State police power i
delegated to the Towns.
t 40.
The petitioners have determined that successful evacuation of tne " East End" of Long Island in a nuclear emergency at Shoreham is impossible and that no emergency plan is feasible to protect the health 4
3 and safety of their East End residents.
Therefore, the q
petitioners have refused to participate in the
'l preparation and/or implementation of a shoreham emergency plan for their Towns since such a plan would be a sham.
ll ll,
1-
41.
The County Executive has purported to direct the County Commissioner of Police and other County officials to test the Shoreham emergency plan developed by LILCO.
W9st important respondent has directed:
that agents of Suffolk County assume the function of command and control with implementation of the police powers of the County of Suffolk over the conduct of said test and exercise [of the LILCO emergency plan].
(Exhibit 1)
(emphasis added]
42.
As noted above, Judge Geiler's decision has already determined that LILCO's emergency plan is an unlawful usurpation of local police powers.
The County Executive has purported to assert command and control over the police power functions for the purpose of exercising the LILCO Transition Plan, infringing upon c
the police powers reserved by petitioners, over which he has no authority.
43.
The respondent's Executive Order is an unconstitutional usurpation of the police powers retained by the East End Towns which have never established County police districts within their borders and which have never surrendered their emergency planning functions to the County of Suffolk.
44.
On the basis of the foregoing, Executive Order 1-1985 must be rescinded, annulled and set aside.
tulEREFORE, Executive Order 1-1985 should be rescinded, annulled and set aside and the Court should enjoin the respondent and his contractors, agents, servants, officers and employees and all persons in active concert and participation with them which, directly or indirectly, allow, induce, or support the implementation of the policies and actions set forth in Executive Order 1-1985, and further enjoining the respondent, his contractors, agents, etc. from testing or implementing the LILCO plan or any RERP for the Shoreham Nuclear Plant without presenting to the Suf folk County Legislature such a plan and the need therefor and securing the approval and concurrence of the County Leg isla tu re in accordance with the above-cited statutes, Charter provisions and Resolutions.
g Dated:
June 5, 1985 Yours, etc.,
Riverhead, NY TWOMEY, LATHAM & SHEA-Attorneys for Petitioners 33 W.
Second Street P.O.
Box 398 Riverhead, NY 11901 516-727-2180 e
s e
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK c
X f
In the Matter of the Application of THE TOWN OF SOUTHAMPTON, THE TOWN j
OF EAST HAMPTON, THE TOWN OF VERIFICATION L
SOUTHOLD, and THE TOWN OF RIVERHEAD, Petitioners, Index No. 8R5-lO52C3 for a Judgment under Article 78 of the Civil Practice Law and Rules PETER F. COHALAN, County Execu-tive of the County of Suffolk, j
Respondent.
___________________________________x g
STATE OF NEW YORK)
- ss COUNTY OF SUFFOLK)
STEPHEN B.
LATHAM, being duly sworn, deposes and says:
J 1.
He is an attorney duly licensed to practice law t
in the State of New York and is special counsel to the Town of Southampton, Ea st Hampton, Southold. and Riverhead, nunicipal corporations, which are the petitioners in this proceeding.
2.
He has read the foregoing Petition and knows the contents thereof and that same is true to his own knowledge except those matters therein stated to be alleged upon information and belief and as to those matters, he believen them to be true.
F,.
1 3.
This verification is made by the deponent because the petitioners are municipal corporations and the deponent is special counsel to the petitioners and I
the deponent is acquainted with the facts alleged i
herein.
I i
4 Es7s N
Ste$en R.
Latham Sworn to before me this 5th day of June, 1985.
ga
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LYNOA A.MONtNGTON It0TARY PUBLIC, State of New York No. 4736164. Suttoit Coun 6
1erm Expres Isarch 30,1 2-
k Part= F. cowai.4w surrns a couwtv anscuews
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orrecs or Tws coustry Emscurwa iz Joa= c ca e,oseve, cau.4ewee
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FYRrilTTVs onDrn mDIDER 1 isos
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r-By the power-tws10sd'in' me unde' Article II-B of the-I r
New York State Exosutixm_!.au-and. 83S2 cf the-5UF70Z.E C0 TWIT" (
W CHARTER, I hereby determine that it is neces'ary for me to s
j cause to be reviewed and evaluated the Local Emergency Re-sponse Plan for Suffolk County presently hafore the United St.ates Nuclear Regulatory C0=miaMon and-tu' e-Fodotal Emirgen-cy Management Agency.
5 I therefore dirnet the commissioner of Police and Commissioner of the Suffolk County Planning Department to
~
use whatever resources of the government of the County of Suffolk.are necessary in order te complete a review and evalu-ation of the above Local Emergency Response Plan and carry out and cause to be conducted a test and exercise of the above said Plan in conjunction with the Lus=1 Emergency Response Organi-saition (LERO).
I further direct that agents of the County of Suffulk assume the tunction of command and control with imple-i mentation of the police powers of the County of Suffolk over l
the conduct of said test and exercise.
IN WITNESS WHEREOF, I hereby wt my-hardtMr-M l
day of May, 1985.
)
L ETER F. COHALAN age,,yg.sev=..,,,es SUFFOLK COUNTY EXECUTIVE C 99. N E
- - -.......,.onos
} ' Intrc.Juced by the Presiding at the requ;st cf th County ExrcutivD k/
RESOLUTION :;0. 262-199 2, -DIRECTI:IG THE
~[
7 COMPT'tOLLCR A:33 COUNTY TRC.*.SUP.Elt TO RCTONO
.]
S150,000 TsCCE IV ED TRC:t LILCO A::3 TRANSPERRIh!C..
\\, '-
Q FUNOS IN CO:!:lECTION WITU RADIOL?GICA* RESPC::SE PLAN..
f e
- WHEREAS, Pasolution !:o.
694-1931 au theri:ed an agree.cnt - be tween LILCi 4
and the Suf folk County Oecart.~ent of Planning 'er the preparation of a Count (
j r.diological emergency response plan; and
}
WHEREAS, under the te rns of the ag rc ;. at, LILCO has paid the County.o
(
suffolk 3150,000 with an coditional 395,000 dea upon coupletion of the contracti ij end l
h i.
WH E P.EAS,
special counsel fo r the C:e.ity in the Shoreham operating 3
licensing proceedings has advised the County *. hat it is in the best interest 'oq p
the Cbunty to avoid any appearance of a conflict of interest by returning th<
$150,000 received from.LILCO for the radiologic 41 response plan; and 4
.C i
- WHEREAS, it is the intention of the County to cenplete the radiological
~
f response plan at its own expense; now, therefore, be it efj PIS C L*.'ED,
that the County Cc: ptroller and C unty Treasurer c.re directed j
to return $150,000 to LILC0; and be it further!
- PSSOLVED, that the County Co ptroller and County Treasurasr are diructek h
to cancel the unexpended balance in the following er.cu brances; 01-8026-992 j
i 01-6026-993
.,i 01-8026-904 d
$.N erd be it further j..
- RISOLVE3, that the County Comptroller and 0:unty Treasurer be, and they hareby are authorized to transfer the following funds and authorization:
S 4
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Tnen rf a
Enployeo Senefits Realth Insurance
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$375,000 l
Y 01-9060-836
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5
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Planning l
i' Radiological Res;cnse Plan (Office Supplies) 10,000 f
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01-8320-301
,C Planning j
Radiological ?.espcase Plan (Printing) 19,000 01-83 5-304 i
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Planning e
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nadiolo31c's1 P. esp:nse Plan (Misc.)
40,000
,t 01-83:G-350 9>
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}.-Rcdiologicalecepons3 Plan.(Adv.,)..
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h R..diological Rasponse Planf(Milesjel'- '
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4 Planning i
j P-diological Raspan:o Plan (Fees for services for 300,000 [
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01-4026-456 m
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. nd to it further 4
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RESOLVED, that the County Planning
- Department' shallf prepare f,4.Ceunty 4
r..diological Emergency Response Plan to serve the interest oficafety,fh<tsith end
}3' c:1 faro of the resid.tnts of Suf folk'Caunty; and t>a.it. further s..
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'If
- RESCLVED, that said plan chall not be operable'and shall'not be;dee.ed adequate and capable of being imple: ented until such time as 'it is 3 approved h.b3 7
the Suf folk County Legislature; and
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"f RISCLVED, that only after said plan is approved by, the Suf fol[ County
?
Legislature, shall it be submitted to the rederal Emergency _ !!anagementz, Agency
-?
and the
!!uclear Regula tory C.,cission for purposes.of any findings,
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determinaticqs, rulings, reviews, or tearings by such Federal ~ agencies...
t-d DR;E3:
March 23, 19S2-
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..r4 cou.ty/.xecutive of saf foix County
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Dr.to of Appr val: 3[.Z. 5"[N 4
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Cb' t* Cer% C4d J. Wi!!iarn H.
Rogers. Clerk of th' i
-l-l Comm y K,pe!..mt,SLTFOLN COUhyy l County legiskbre of the CcuntY cf Saffalk i
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. have compard the 9
J
!;lVERi;EA D. h. y.
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.fegoing ec;y cf res!ut ;-) with the cri;inal resolution r.ow on f;fe in this cffice. and w hich m as dt,1y ad3?ltd by tht County legislaturc ols:.id
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E-d that the same is a true and ecerecs transcript cf said resc!ution ar.d of the s.hofe thereof,
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s li j daI'+m Deem.J have herean:o set my hand ard the eft;cial j
n.! cf the Cour.ty le;isisture of the Cear.ty cf Nffolg w
C'erk cf the County th.AVdat[*re
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- nESOLUTICri[NO.
I. W -1682'NESTAPLISHINCTTHE$ i
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int.310LCCICAL EMERCENCY aESPONSE,PLANNINC 1
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.EOLICY Cr THE. CDUSTY CT SUTTOLK / '
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.L-i whEncAS, County' of Suffolk has thel prinary responsibility for the S
a;otcetion of its residents in kalend Lighting Coepc.ny's Choreham Nuclear Power Stations ~ and ~the. event of a ~
kn
.. l P
t!HEREAS, Saf folk Ccunty takes this responsibility sericusly and. inte.tds I
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through good faith and sound planning of forts, to assure that'the best possible c
ocargency plan and preparadness are develo;ad to protect.,the. citizans 'of _ Suffo1h r
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j County; and
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T.iEREAS, Suffolk County's recrgency Planning. Task' Force,ico^ posed o?
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nationally recogni:cd experts drawn from a range ~ of. pertinent, disciplines,
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}. l acw conducting a detatled planning effort. in order to attempt to' develop 4 3
vir.ble radiological energency plan, for Suffolk County; and I
I b'HEREAS, The Lcng Island' Lighting Company, inanunwarrantedandarrogantf s
~
E, act, has gone beyond its powers as a private corporation in, an attempt to t;usur$)j
}1 the rightful powers of Suf folk County by submitting county planning resourcel naterial to the New York State Disaster Preparedness Cormissica for its : approval-
/.
cs the official radiological emergency ' response plan for Suffolk County; and b
~
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- fiHEREAS, said planning resource e.aterial developed in 'part by ccunty, partennel, is prelininary data which in no way constitutes the'. Suffolk County-!
3X i approved RADIOLOGICAL EMER0ENCY RESPCNSE. PLAN.and will not.in:the future I constitute such County plan; and 4
fiHEREAS, Suffolk County will sub91t its RADICLOGICAL EMERGENCY. RESFCNSE i, has bacn fully prepared and approved by Suffolk County a d is t J{, -
ereby integrated n
uith the pl.tnning ef forts of both LILCO and New York States therefore, be it 5
- RESCLVED, that Suffolk County hereby established..the, follcWing
- )
Fediclegical Emergsney Response Planning Policy:
1
'tj Suffolk c unty shall not assign funds or T
4 personnel to test or' implement any.
radiolegical emergency response plan for ya the Shoreham Nuclear Plant unless that -
l g
plan ha s been fully developed to the best
/
t.
of the County's ability.
i Suffolk C:enty shall not assign funds of 4
par:enr.el to test or implerent any 1
radiolcgical e ergency resconse plan for
)
the Shsraha, wcicar Plant unless that plan has b?en the'sub;ect of at laast two public he: rings, one to be held in R;ver-
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h:ad, c.nd cne to be held in Hauppauge.
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-plan hic? besn' apprcved,J;f tse: psblicthe Shorehag Nuclese P um [ ;4,
heart.gs, 'by the Suf folk ( County lt.egislature*M""f@
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. a' T6
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.4 and gh.t - County ? r.xecutive -
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-r cad, be it.further
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4 v
.c P.Isof.vtD, tht': copies' of t'.is resolution be~sentito the Covernor, the.
.s
-5 Spaaker of the~ Asst. *: ! y, the Muority I.?? dor of the sonate and - tho.- t.agislat:are) i a t tho ' S'.a te a t Nc r '* :k.
.t 0,*.;gDe May 18,~1982
..3-
- 1
-I APPP'..' 3 BY:
I
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$4 Courdy Executive of Suf folk. bunty.
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2:
Date of Approval
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W.4 H.. Rogers. Clerk.
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ti.... t, 0,mF; 01,,t J. Willia m of the el SUFFOLK COUNTY ' Ceu-ty kgish.ture of the Ceunty of Suff:fk. hoe cem;: red the
+.(:'
c,une[. 3,;; L.n:,,
EIVE.ItE? D. 5. Y., f:- t:hg eepy cf re,Ot4n wth the cri.; hat res:fden s.o. en fJe in
-p tW cfSee, tr.d vMe 5 wa d;!y ad:;t~f by the Ceunty Legi:!r tare cf ar.id h,
Cc; ty on YJ'uf ff, /f['c2 /
f' I
r.-d th-t the nme da true and ecrrect trane.cript cf r.;id resoletion tnd of f
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the who!e th=reof.
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4 lTe T*;en,,e TJiwe,.f.J have hereunto set my hand ed the cfC it.1 j
se:1 cf the Ccur.ty legis!sture of the Ccunty of Suffolk i
d'."h Y....
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Clerk of the Ccur ty Leist:ture 3
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'Risolution 'h:.#llh ;-1953[g"
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Constitutin:1the ~indines ~and
~
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t Determinations of Suffolk County
.on Whether A Level of Eme?gency l
Preparedness To Respond to a Radiological A ident At:the
.~
4 Shoreham Nuclear Power Station.
4 Can Prctect tne Health $ Welf are.
i and Saf ety of the Residents of
- f,
Sdffolk County i
1 b
^
i WHEREAS, Suffolk County has a duty under the Constitution i
of the State of New York, the hew York State Municipal Home j
Rule Law, and thel Suffolk County Charter to-protect.the health, safety, and welfare of tne resi ents of Suffolk County; and_
1 i
WHEREAS, the Long Island Lighting Co cany ("LILC0") is a
c'onstructing and desires to coerate~ the Shoreham huelear Power Staticn ("Snoreham"), located on the north shore of Long Islanc near the town of Wading River, a location wnich is within :ne boundaries of. Suffc1k County; and WHEREAS, a serious nuclear a::ident at Shoreham could result in the release of significant cuantities of radioactive fission products; and WHEREAS, the release of such radiation would pose a t
severe hazard to the nealtn, safety, and-welf are of'Suffolk i
County residents; and 1
WHEREAS, in re:ognition of the effects of such potential i) nazarc posed by Shoreham on :ne cu:y cf Suff olk County to pro-1 te:t the healtn, saf ety, an welfa-e of its citizens, this Legislature on March 23, 1952, aco ted Resciution No. 262-1982, wnich directed that Suffolk County prepare a'" County Radio-
[
locical Emergency Response ~1an to serve tne interest of the saf,ety, health, and welf are of the citizer.s of Suffolk County e
and
(
WHEREAS in Resolution 262-1982, tne Legislature determined
]
that the plan devel:?ed by the County 'snall not be operable and shall not ce ceemed adequate an: ca;atie cf being implemented until such time as it is a:oroved by the Suff olk County Legislature"; and
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w o n e. r. :. n _,
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f ou,nd thatiearlier planninggef.f er's.by '.ILC0;and County planners,
r 3
q (the " original. 01anning data")c*ere jnade:uate becauseitheyi " lif L'
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I l
f atled 'to address'the particular problems' cosed by conditionsion~ ^ ;
I Lono Island and-furtherifaile'o# to 'a:icount' for.hdmari behavior 7, ".
(
during.a radiological emergency and' the lesson's of the a:cidenth,..
'~
at Three Mile Island; and' l
WHEREAS, on. March 29,19S2, Peter F. Cohalan, Suffolk j
County Executive, acting to im:lement Resolution 262-1982,.by
~
Executive. Order established the Suffolk County Radiological.
a Emergency Response Plan Steering Committee (" Steering Committee").
~
y and directed it to' prepare.a County plan for submittal to the' ~
County Executive and County Legislature; and WHEREAS, the Steering Committee assembled'a group of.
highly qualified and nationally recognized ' experts from ~ diverse s
disciplines to prepare such County plan; and N
E WHEREAS, such highly cualified experts worked in a' diligent l
and conscientious effort at a cost in excess of $500,000 to t
prepare the best possible plan for Suffolk County, and 8
particularly to ensure that such plan took into account. all' J
particular physical and behavioral conditions on Long Island that aNe t the adecuacy.of the emergency response plan; and
>j WHEREAS, the analyses, studies, and su-veys of such experts J
included:
q Detailed analyses of the possible releases of (a) j radiation from Shoreham; i
l (b)
Detailed aralyses of tne radiological-. health l
consecuences of such raciation release on the population of Suffolk County, givg* the meterologi-Li 1
cal, cemographic, tcoographical, anc other specific local conditions on Long Island; (c)
A detailed social survey cf Long Island residents to determine and assess tneir intenced behavior in the event of a serious accident at Shoreham; (d)
A detailed survey of school bus drivers, volunteer firemen, and certain ether emergency response personnel to cetermine whether emergency personnel intend t0 report pro ptly for emergency duties, 1}
or instead to unite with their own f amilies, in l
the event cf a serious a::ident at Shoreham; l
l l
i
y-J serious accident at Sh:-tham, as well. as the number of persons who intend to' evacuate vcluntarily.
even if not e-dered to do so;-
E (f)- Detailed analyses O' tne road network in Long Island and the time. required ic evacuate persons from areas aff ecte: ty radiation releases;
~
k (g)
Detailed analyses cf the protective actions available to Suffolk County residents to evacuate or take shelter from such radiatien releases; and (h) Analysis Of the lessons learned from the accident at inree Mile Island on local covernment responsibilities te prepare for a radiological emergency; and WHEREAS, on May 10, 1952, LILCO, without the approval cr authorization cf tne Suffolk County Government, submitted 10 the New York State Disaster Oreparedness Commission ("DDC")
two volumes entitled "Suffolk County Radi: logical Emergency Response Flan" and containing ne original planning data, as further revised and supplemented by LILCD, and recuested the DFC to eview and approve such LILCO submittal as the local radiological emergency ress:nse plan for Suffolk County; and WHEREAS, in Rescletiens 456-1952 and 457-19S2, the County furtner adcressed the matter Of preparing for a radiclogical emergency at Shoreham and ennasized that:
(a)
Tne LILCD-submitte document was not and will l
not be tne County's Radiological Emergency Response Plan; an:
(b) Tne County's Raditio;ical Emergency Response il Flanning Eclity, as enunciated in Resolution
,1 455-19S2, is as f:liows:
Suffolk Ccunty snail not assign funds cr personnel to test or implement any radiological emergency response :lan f or the Snorenam Nuclear Flant unless that clan has been fully developed 4,
[
to the best of the County's ability.
Suffou County shall net assigr funds or personnel te test or ir;1ement any radiological
(! !
emergency "esponse Clan for the Shoreham Nuclear Flant unless that plan has been subje:t cf at least two Ou::li: hearings, one to be held in Riverhead, 2n: one to be held in Hauppauge.
f I
, '$p '
emergency response plan 'er tne Snorenam 55; Nuclear Plant unless that plan has been aaproved, 7
af ter public hearings, by the Suffolk County Legislature and the County Exe:Utive; and s
WHEREAS, on June.9,1982, the DPC rejected the LILCO-submitted document for the reason that it was ceficient; and WHEREAS,- on 0:tober 6,19S2, 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 Resolutien 262-1932 was submitted to the County Legislature for review and public j
hearings as specified in Resolutions 262-1932, 456-1932, and j
4E7-19S2; and WHEREAS, in January 1933, the Legislature held hearings on tne Draft County plan, wnich hearings incluced:
(a)
More than 1,590 pages of transcriots; f
(t)
Detailed written statements and oral tes-imony of County expert consultants who prepared the Draft County plan; L
l (c'
Detailed citten statements and oral testimony of LILCO of ficials and expert consultants j,
retained by LILC0; 1;
Y (d)
Detailed citten statements and oral testimony ll of the Suffolk County P: lice Department, the
~
N County Health Department, the County Social Services i
Department, and the County Public Works Department, y}l all of whi:h would have indiscensable roles in respond-in; to a radiclogical eme gency at Shoreham; E
(e)
Detailed citten statements and crai testimony 1
di or organizations in Suffolk County concerned with
,l. ;
radiological emergency preparedness; and I,
I (f)
Extensive presentations by hundreds of members i
of the gene-al public; and i
WHEREAS, memoers of the Legislatu e also travelled to 3
and held putlic hearings in the vicinity cf the Three Mile d
- sland Nuclear Power Plant te gain info-mation on the lessons
,f to be learned by lo:al govern ents fro-the a: ident at inree Mile Island; and J
l 1
i
.V,,;.
WHEREAS, tne Draf t County clan identifies evacuatien anc I
f protective sneltering as :ne two primary prote::ive actions wnich woule need to be i le ented in the event Of a serious accident at Sh:*enam; ar.:
WHEREAS, eva:uation Of Suff olk County resicents in the event of a racielogical e ergen:y could take as auch time as la-30 hours because of sarious factors, including:
the limited number of appropriate evacuation routes in Suffolk County; difficulties in metilizing police and other emergency personnel; difficulties ensuing from spontaneous evacuation of large numbers of County resicer.:s, thus creating severe traffic congestion; and unavailability of alternate evacuation routes for persons residing east of Shoreham and tnus the necessity for such persons during an eva:uation to pass by the plant and possibly through the radioa:tive slume; an 1
WHEREAS, eva:uatier ti es in excess of 10 nours -- and certainly eva: a:i n tires in the range Of 14-3C hours -- will 5,
result in virt a'. im.0 bili:ation of evacuation anc hign l
excesure of evacuees to ra:iation such tnat evacuees' health, 7
saf ety, an:.elfa e woul: no be protected; and S
WHEREAS, :-:te:tive sneltering is designed :0 prote:t persons from ex:sssive ra:iation exp0sure by such perscas stayin; indoo-s until radiation witn :ne greatest danger to nealth has passe:; and WHEREAS, i' :*:tective sneltering were ordered for Suffolk County residents, unatte:ta:le radiation exocsure would still
'4 be experien:ed :y suostantial partions of the Suffolk County v
population, tnas.aking it ircossible te provide for the i
g health, welf are, and saf ety of these residents;
)
WHEREAS, tne documen; submitted by LILCO to the DDC without County a: roval Or auth0rization is deficient because it does not ceal aitt tne a:tual local conditiens, physical and behavioral, er Lon; *sland that would be encountered during a se-icus nu: lear a::ident at Shoreham; and WHEREAS, :ne cocunen; submitted by LILCO to the DDC without Ccunty ac:roval er au ncrization coes not ensure
)
tha.t eff ective protective a: tion by persons subject to
(
radiation exc:sure, in tne form of evacuation or sheltering, would be taken in event cf a serious nuclear a::ident at Shoreham, and tnus su:r. c::unent, even if implemented, would not protect tne nealtn, saf ety, and welf are cf Suffolk County residents; and
.c WHEREAS, tne extenske cata thien the Legislature nas i
considered make clear that the site-specific ci l
l l
3 l
its eloncated east / west ::'f';; ration which recuires al l
evacuation routes fro-lo ations east of the plant to passnigh ra s
likely within a zone of precitte:of protective sheltering, the severe l
tion were to be experienced if a partial or conclete evacua ordered, and tne difficulties in ensuring that emergency i
eclude personnel will promptly report for emergency dut es, pr adecuate preparedness to 0 cte:t the health, w j
safety of Suff olk County resioents; theref ore be it RESOLVED, that the Draf t County plan submitted to the County Legislature on De:e-ber 2,1952, if implemented, would J
l not protect the health, welf are, and saf ety of Suff olk Coun residents and thus is n::
and the DOC RESOLVED, that the :::ument succitted by LILCO :: implemented, woe without the County appreval er authorization, if not protect the health, welf are, and saf ety of implementec; and RESOLVED, that since ne lo:a1 radiological emergency ill response plan f or a seric.s nu: lear a:cident at Snoreham w County protect the nealth, welf a-e, and saf ety of Suffclk i
f any residents, and sin:e the creparatien and implementat on o s;;h plan woulc ce misleading to tne public by indicating tc County resi:ents inat tnei-nealtn, welf are, and safety are County's being prote:tec when, in f act, such is not the case, the i
td radiological emergency planning process is hereby term na e,
and no lo:al radiologi:al emergency plan for re d
radiological emergency plan can RESOLVED, that sin:e n protect tne health,.el'a-e, saf ety of Suf f olk County l
residents and, since n; ra:iclogical emergency plan shal ie be adepted or implemented by Suff olk County, the County Ex is hereby directed to take all actions necessary tc assure it that a:tions taken by any other governmental by this Resolution.
5.:UPREMEfCOURT.;SU. FFO, LK. iCOUNTYM_.c W~ q.i;; %, w...m f. ~ *F 1h'dWh ij 2'
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I.0::G ISLAND LICitTING ' COMPANY,'
......p aryf20h.1985; f '. [
Cot'UTY OF SUFFOI.K,
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j Plaintiff',
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l.0:'G ISt.AND L1CitTING COMPANY',.
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TO'elN OF SOUTIIN1PTON,
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Plaintiff, 1
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F LO::G ISLAND LIGitTING COMPANY, De f end an t'.'
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FAlil AN G. PALOMIF0, ESQ.
ATTOR:'EYS FOR DEFENDANT.
Spec. Counsel to the Governor LONG ISLAND LICllTING COMPANY:
9' of New York State 4
4 ib:ecutive Chambers ROSALIND !1. GORDON, "~ESOi 2 1lorfd Trade Center 2500 Oldicountrv nond
':ui York, M.
Y.
10047 Mineola, N.Y.
l'1501 at.d and RODERT AliH AMS, ESO.
lil'NT0" & \\lII.1.1 A"S, CSOS, 707.E. Main.St.
Attorney General
.Richt dd,' Virgin'la.23219
-.a
' 'lo r 1 :1 Trade Center
': w York, N. Y.
10047 By:
Jr.mes E. Farnhr.m. F.sq. and lLiry M. Gundrum, Esq.
F.athy E. D. M.;Cicshy, Er.q.,
~
Of Counacl-
/ JT "::EYS FOR COUNTY OF SUFFOLK:
1
. J u. I N h. AS!!ARE. ESO.
r:e: c: ans Menorial liighway f
!!..uppaune, N.Y. 11788 1
F.v :
Arlene R.
Lindsay, Esq.
of Counsel 4
i and j
KlitKPATRICK, LOCKilART, JOHNSON &
i!UTC!!1 SON, ESOS,
i 1500 Oliver Bldg.
I Pittsburgh, Pa. 15222
'l liy :
David A. Brownlec, Esq. and Kenneth M. Argenticri, Esq.
Of Counsel ATTOP.NEYS FOR PLAINTIFF TOWN OF SOUTHAMPTON:
l T1.'OMEY, l.ATilAM & S!!EA, ESOS.
3 3 '.le s t Second St.
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- The
- State of New' York.(STATE) th~e County of-Suffolki(COUNTY)D c..
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and theSTown'of[Southamptond(TOWN),-comm,enced? separate-declaratoryfjudg " Q _
]
ment actions?against the?Long Island Lighting Company (LILCO), 'a '.publici
'*;l service corporation incorporated pursuant to the laws of the State;of u.i.__
New York and primarily7.' engaged in the. production, distributionDand saleJ n 1 of electricityfonELong' Island.
These actions;arise from LILCO'.s attemptP 1 to secure approvalf of-its f' utility". sponsored loffsite emergency, responseZ l I
plan for its nuclear: plant ~ located at.Shoreham.% The plaintiffsbseekTa?,~~"^^
declaration thatiLILCOLdoes not have the legal authority to carry?outi r" its plan..
<v, i
I
-.s
..LILCO'.has moved _to' dismiss this_ action'and the. plaintiffs _have:
cross-moved for summary; judgment.
The Court, in order to addressfthe; issues containedfin;these motions, must examine the events. leading up~t!ok j
the commencement' of these declaratory judgment actions.
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[
s
.THE' ATOMIC-ENERGY ACT OF 1954 l
The Congress;of:the United States, cognizant of the.need for M-I new methods of producing energy, passed the' Atomic Energy Act_of'1954'.
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 States _v. City of New York,:463 F.Supp.,604)'.;
~
The Atomic Energy Commission (AEC) was ~ designated by the Act to" oversee the construction and; operation.of nuclear power plants.
This'was tojbe'
' accomplished by a two.-step licensing procedure.
First, the operator.:of:
a nuclear plant.was required to obtain a construction _ permit'from the AEC in order to build a. nuclear facility.
Second, the operator after.'
completion of the facility, was required to secure a license to operate ~
t the plant from the'AEC.
The AEC, in the latter licensing procedure, was interested mainly in the onsite preparation-for an emergency.
The licensing and regulating functions of the AEC was trans-ferred to the National Regulatory Commission (NRC) by the Reorganization Act of 1974 (U.S.C. S5841 (f) ).
~
SHORElLW y
y p
In 1968 LILCO applied to the AEC for a permit to construct an 820 megawatt nuclear powered electric generating facility on property f
located at Shoreham in the Town of Brookhaven, County of Suffolk, State
[
of New York.
The application was opposed by a private organization known as the Lloyd Harbor Study Group.
The latter was permitted to intervene and cross-examine LILCO's witnesses at hearings before the AEC.
None of the plaintiffs herein 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-j i
M jco'nstructionPermitHearings, Transcript 209, 211, 216,'.197'0').
Ths pe'rmit to construct a nuclear facility at Shoreham was issued'by~the'AEC J.
'in 1973).
i s'
The approval of the Shoreham 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 l Major
-Radiation. Incidents".
In 1975, representatives from LILCO and the COUNTY 1 held a series of meetings in order to define the emergency planning role ifor 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 issuance of an operating license.for a 7
. nuclear plant upon the existence of an adequate offsite emergency plan.
i The TMI accident focused attention on the fact that nuclear accidents may endanger surrounding communities and require the mass evacuation of people in those communities.
Congress, in response to the events which occurred at TMI, determined that no nuclear plant should be licensed to operate unless an adequate emergency plan could be drawn up and implemented for the area i
surrounding the nuclear facility and passed the NRC Authorization Act
[
of.1980.
6
[
~
)
The NRC, in implementing the policy expressed by Congress, 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 planning zone (EPZ and also j
within a fifty mile radius food ingestion pathway (45 Fed, Reg. 55, 402 August 19, 1980 and 10 C.F'.R.
550.33(g) 1984).
An operating license is issued only if the NRC finds that there is a reasonable assurance that 4
adequate protective measures can be taken to protect the area surrounding I
the nuclear facility in the event of a radiological emergency ( 10 C.F.R.
$50.47(a)(1)1984).
]
FROM PROTAGONIST TO ANTACONIST f
A careful study 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" signed by County Executive John V. N. Klein and LILCO on December 28, 1979 and the approval 1
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t aep m A m of the? terms;ofEsaid agreement'by the County Executive' Elect!,JPeterJF. J gy y Cohalan,Cgives icredence' to ?this ' analysis of ;the 1NRC ;regula.tionsF(see: ;
A letter from John V.
N.' Klein-to Ira. Freilicher, Vice' ~PresidentiofiLILC00 +e. d dated-DecemberL31, 1979).
~
A-number of.discussionsLeook place betweenDLILC0 tan'd'COUNTYs-representatives between 1980_and 1981 for the purposeiof determining?thet ja,m best means ofideveloping an. acceptable RERP.
ThescidiscussionsEledcto thep y r
signing of a contract between.LILCO:and the COUNTYron MarchL15,419817 -The
~
7 COUNTY agreed Eto develop an emergency plan and LILC0cintturn consent's'dJ o[~-
t paying the projected-S245,000.'00 cost of; preparing {theiplan. iTheoCounty -
Legislature, in September 1981, approved cthe - termsf of thelagreement.? an'di ~
LILCO advanced $150,00000 as the first' installment on the payment (ofigj S245,]00.00.
The latter was to be paid in full ~on March' 18, :1982 ~ the _, - -
scheduled completion date'of the PLAN.-
,,,f 1,g,
On February 19, 1982, the COUNTY advised LILCO that the S'150700'0iO0 I advancement would be returned because of the'"appare'nt iconflictLof interest"-
in the acceptance of any funds from LILCO for the purpose of preparingian emergency plan (see letter dated February-19,'1982 from Lee E.1Koppelman,A Director of Planning for Suffolk County to LILCO).
Suffolk County Legislature passed a resolution autho,0n Marchc23, 1982Lthe; rizing the:Suffolk)f County Planning Department to prepare a new emergency plan uhich was tot be submitted to the Legislature for its consideration (Resolution-262-1982).
On Februaryfl9,.1982, the COUNTY advisedLLILC0 thaththe,S150,000.00s advancement would be returned because of the " apparent' conflict of int'erest"'
in the. acceptance of any funds from LILCO for the purpose of_ preparing an:
3 emergency plan (see letter dated February ~19,D1982'from' Lee E.LKoppelman, Director-of Planning for Suffolk County toLILCO). :On March l23,,19821the Suffolk. County Legislature passed a res'olution~ authorizing the Suffolk County Planning Department to prepare a new' emergency' plan which:was to'be.
~
i submitted to the Legislature for its consideration (Resolution:262-1982)-
g The Planning Department, in accordance with the Legislative directive, submitted a RERP in December 1982.
A number of public hearings were held by the Legislature to consider the PLAN in January, 1983.
The Legislature, 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.
[S]ince no radiological emergency 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, the County Executive is hereby directed to assure that actions taken l
s e f
}
by any other governmentalfagenc.
15e :it State - or :Federali.
are consistent with the decisich mandatcd_by this'Re'so-
~
7 lution."
o
~
(Resolution 111-1983).
Bl The Governor of New York, after reviewing the results.'of a -
I e*udy by the Marburger Commission, an independent committee appointed
~
by the Governor to study the Shoreham situation, announced that no.
RERP for Shoreham would be adopted or implemented by the STATE.
THE LILCO TRANSITION PLAN 4
LILCO, interpreting the COUNTY's refusal to adopt.a plan as'a derogation of its responisbility under Article 2B of the New York Execo '
tive Law, submitted its own plan to the NRC.
The PLAN has been desig-4 nated "The Lilco Transition Plan".
(PLAN)
The PLAN describes in detail the actions which LILCO proposes to take in the event of a radiological emergency at the Shoreham facility.
The PLAN is contained in four volumes.
One volume is entitled "Shoreham" 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 - EvacuationEPlan".
Highlights of the PLAN which would be utilized in the event ofg 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 (LERO).
This group is composed of over 1,300 LILCO -mployees and con-sultants.
2.
The Director of LERO, a LILCO employee, would have the primary He responsibility for the coordination and implementation of the PLAN.
would make certain that the following mentioned functions would be carried out in.the event of a nuclear accident at Shoreham.
3.
Assessment of-the severity of the nuclear accident.
4.
Determination of the action to be taken in order to protect i
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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The instruction of the public;by means of'EBS messagestas' to protective measures to be' taken, including:sclective and general' ' >
evacuation of the EPZ.
8.
Implementation of traffic control measures in order to ~
i evacuate the public along specified routes.
These measures.. include the~-
following:
a)
The conversion of a two mile stetch'of a two-way: road into a one-way road, b)
The placement of roadblocks to cordon off the immediate plant area.
c)
The placement of 193 traffic guides at_147. traffic control points throughout the EPZ.
These traffic guides, by the utilization of cones and hand signals, will channel traffic along the designated evacuation routes and discourage traffic from pro-ceeding along different routes.
d)
The placement of LILCO vehicles, cones and flares in the traffic lanes before certain entrance ramps on four evacuation routes to cause traffic to move into adjoining lanes in order to permit the continuous 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.
The erection of permanent trailblazer signs along all 9.
evacuation routes.
~
The removal of stalled cars and other obstacles from the 10.
roadway by tou trucks.
1 11.
The formulation of protective action recommendations which are to be 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 animals from contaminated fields to shelters.
c)
The withholding of foodstuffs and milk from the market.
d)
The change from the production of fluid milk to the, production of dry whole milk.
i e)
The washing or scrubbing of fruits and vegetables prior.
to consumption.
f)
The suspension of fishing operations.
12.
The making of decisions and recommendations with reference to recovery and re-entry to the EPZ after a nuclear accident.
i.
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,f THE; CATALYST,FORnTHESINSTANT4 PROCEEDING v g.3 4Q The -Atomic Safety 7andl Licensing ~sBoard,c(ASLB)2:,.m
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xm canradministrat
~
panel of ' the NRC, has been 'andi still-~ is - in-th~4. proc'ess ?6f &nildct'iKpheart.%
ings. to determine if thel plan compliesLwithTNRCitandards?@an'dLisicipabliE'6f
- m g%ggpll44{j pygl being' implemented.
x "4 q Q i LILCOhasrepresente'd_to?the'NRC[tlSatiitimaynl'asfullyMplementgy i%r a #vc q e H ) its? PLAN and that neither, Stat'e nor. Federal l law prevent?LILC0ifrom7p'erformDI ing the functions described therein..(Th'e STATE,iCOUNTYgadd;TOWNihabe? S. D 1 These governmental bodies have filedJten?"legalicontentions"a ithithe n advised: the NRC that LILC0tlacks; the legalJauthoritydt'ofcarryioutiitis I w l . ASLB setting forth their..p'ositions 'onsthef. lack:ofilegal}authorityibylLII;Chu j to implement its PLAN., I wF
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The Federal Emergency" Management"Agenc'y'NFEMA)M'w 3 m w ; 9 m xtElidt Aderal W
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u;"w F j body charged with the initial 1 reviews;.of.RERPS, thasi: advise'd;tlie 'ASLBjth'5ETU it cannot determine whether the :LILC0 PLAN can lie ~imple'mented'untiljthe 'C@'.C ~ i legal. authority issue has'b'een resolvedF(sde: Letteriof ' Richard W.UKre'in'e@ i h Assistant Associate Director,yDivisionfof EmergencylPreparedness#andP..: T f Engineering Response, NRC). " ' g ](4 ' ~l g " gif 'j after list'ening Tots 11)sidesiaid.s.mi. 7 m .s j The Chairman of theEASLB,t ~ the-ten?legalicontentionsifiled _ ) considering FEMA's views,'determinedithat by the plaintiffs herein presentLissues of Ne'w'YorklStats La'w.'an'd'helurged' the parties to get a resolution.in3the/StatepCourtsf(Transcr'iptfASLB i r i ~ ~ 27, 1984 p. 3675). ' 7p 77" ]7] y January x-ym,.
- .y. s On March 7,1984, separate actionsifs'e'ekinfa7db61dratiiontth'atl s r
il LILCO'did not have legal authority'to exec 6te."itsjPLAN.was*c6mmenced;b'y M:t. a I the STATE and COUNTY in the New.YorkfStateJSupremejCohrts @ The; COUNTY's i ~ alleges that LILCO's -implement'ation of tits? PLAN wouldlbe 'unlawA :j/ s complaint illegal and a usurpation. of the polic'e powers; 6f 'the2 STATE.1 The? &T
- ful, COUNTY specifically mentioned that the' execution [offthh? PLAN'would violate' the New York State Constitution, the Municipal Hom'e Ru1e'LaF and~the
~ ~ Executive Law. The STATE similarly alleged that LILCO is precluded from ~~ exercising the functions mentioned in the PLAN. In a'ddition,-the STATE cited that the implementation of the PLAN would.beLviolative of the" Transportation Corporations Law, the Business Corporations' Law, the' Vehicle ~ and Traffic Law, the Public' Health Law, the Agricultural and Markets Law l and the Penal Code. i 1 LILCO did not serve an answer but immediately moved'to'dismissL - ' N the actions on the grounds that the Court did notLhave subject matter i jurisdiction and the complaints fail to state a cause of action. l LILCO, before any action'could be taken with reference to its i motion, removed the declaratory judgment actions.to the' Federal District Court in April 1983. It claimed that the challenge to its" legal authority presented a question of federal law that was within: the original juris'- ~ diction of the federal courts. The STATE and COUNTY filed motions for^a i remand of their actions back to the New York State Supreme Court. The Federal District Court ruled that LILCO's federal law claims and its invoca " f t (L - o
{d E Q r yn ;pp MH%.yy.QmaMn v.)ig$wm %' qf';~ i% _ f. x,4;.D'g w: 4 - m, x qnm .s sw y;w a -N + y jg3 ;A h,Ay 3cmps %y;9 3 %g . 'm 1 ; & ;A g! %x W C 3 q w,>s.'r G 4fWAy-V g/g_ ~, : - ih M j k *Nygg fe y e .~;, tionfof Ethe'federalipreemp(tioniargumentUconstitutediaffirmative3defensesV that;:could tbelraised in?a ststeicourtjpidc'de^diHg f(Cuomolv.' Lilc'o;?countyk:% / of Syffolk v.s Lilco; Nos'. "CV-8471218 MCVd84-1405', LED.N.Y.,< June :15,zl984)'.. On August 14, (1984, the LSTATE and COUNTYJactions werel consolidated. in a m : this Court with;a similar action fforedeclaratoryl judgment? commence;d:b~y4' q _ M ~ the TOWN:in.May,1984., m t. n., ms,
- n. 3, ai;s.1.'
%; D. 5 '.-. L 7 y !LILCO renewed its : motion Ktoidismiss itheL:complaintisTon: W'thej f % grounds-that:this' Court does notih'aveisubject matter; jurisdiction;be'cause E no justiciable controversy f s presentLand;the - complaints /failyto stateTab ' i r j cause of action'.- r s j vg p <~ - 1 = .v,, ,- v w / JUSTICIABLE CONTROVENSY?;_ ~ 2 n L -v . LILCO maintains lthat;no;realidispute existsfconcerning.its T legal authority to act in the: event of an emergency because"the plainEiffs'-. complaints.are based upon:a."hypotheticaljscenario" thatiwillenever: occur.' " hypothetical scenario", accordi'g to LILC0fis that the utility,alone. That n a will respond to a radiological; emergency. at,Shoreham.' lLILCO ; boldly; pro-i "in fact New York and Suffolk County would respond in the f k claims that ~ 1 q c i event of an; actual emergency at!Shoreham" and:thus j the i"hypot_hetical:H,y } scenario" in the~ complaint that "Lilco'alone.would perform the c'ontest'ed;1 i activities" is moot. ~ ~ LILCO's characterizationtof.the comp 1aints as being based :onia'~ hypothetical scenario is without.any basis _in fact 1and cantonly=bejattri o ? buted to " wishful thinking".. -One do'esanot have 4 to 'bef a genius ' to;ascer - tain that,the issue presented.by these actions liskthe legal' authority off-c LILCO to execute the. PLAN and'notfwhether_the' STATE-or'COUNTYnwill-orf ~ will not respond-to a radiologicalfemergency~~at'~Shoreham'. What constitutes a justiciable [controversyiJ The,necessary: a elements of'a justiciable controverysare :a ;1egally protected _ ^ interest s. and a present dispute (Davis Construction Corp...v. County of Suffolk,. 112 Misc.2d 652, 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. Goldin, 38 A.D.2d 267, 328 N.Y.S.2d 958. These elements are present in the instant matter. The plaintiffs have an interest in insuring that their governmental powers are not usurped by a private corporation. LILCG 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? a The Court is of the opinion that..the declaratory judgment action A is the best vehicle to solve the controversy herein as attested to by th'c following language of the Court of Appeals in the case of New York Public 1 Interest Research Group, Inc. v. Carey, 42 N.Y.2d 527, 399 N.Y.S.2d 621 ] at page 623: l "...The need for judicial intervention is obvious when, because of the actions of one of the parties, a dispute arises as to whether there has been a breach of duty or violation of the law. Then the courts can declare the -l righ'ts and obligations of the parties, and if a breach I is found, compel compliance, award damages or otherwise l order appropriate action to be taken. 1,
h, t Y 5 v j - x; R f !p - L .v' ~ 1 4, y jThatiis"tliejtraditional, butanot uthe ionly way'_ in'which .azgenuinellegalldispute1may arise or be resolved.by
- thefcourts.
For instance, when a party contemplates taking :certain action a genuine disputd may arise before Jany brea'ch'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 e 'with the. law is-for the courtscto declare the rights and obligations of the. parties so_that they may_act_ accord-ingly.. That is the theory of the declaratory judgment actions authorized by CPLR 3001 (James v. Alderton Dock Yards, 256 N.Y. 298,.176 N.E. 401: Siegel, Practice i Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3001,'pp.'355 357; 3 Weinstein Korn Miller, N.Y. Civ.Prac., i par. 3001.02; Borchard Declaratory Judgments, 9 Brooklyn .L Rev., pp.1 3). } 'The controversy concerning LILCO's legal authority to implement ] its PLAN is real and present. Resolution of the dispute will determine what the police powers of the STATE entail and if those powers have been usurped'by LILCO's PLAN. The determination of LILCO's authority to imple-ment 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. i s THE-ISSUE LILCO, as previously mentioned, moved to dismiss the complaints pursuant to Section 3211(a)(7) of the CPLR on the ground that the com- ) plaints fail to state a cause of action. LILCO contends that (1) "New York law 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 j October 4, 1984 which limited the issue to be decided to that of LILCO's a legal authority to implement its PLAN under the laws of the State of New 1 York. The parties have submitted the pleadings, trans cripts of their oral 1 arguments before the Court, affidavits, the PLAN, voluminous briefs and I documents and there is no need to hold a hearing as none of the material V facts are in dispute. ] l 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 NRC finds is adequate and capable of being implemented. LILCO has submitted a PLAN to deal with a radiological emergency at Shoreham. i The plaintiffs have challenged LILCO's legal capabilitics to perform the 4 i },
L N functions. contained in'thelPL'N and maintain that the PLAN amounts to a 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 i T~ 1cgality of LILCO's performance of these functions under the laws of the State of New York is be~ fore this Court for a resolution. THE POSITIONS 9. 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 B the following st'tement contained in the PLAN at P 1.4-1.8: a ."(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 State that State and local plans, organization arrangements, and response capability "be the most effective that current circumstanes and existing resources allow." " g' This argument has been succintly advanced by counsel for LILCO in his statements before this Court on January 15, 1985 and transcribed f at pages 26 and 27 of the minutes in the following concise manner: A "Under the LILCO view, as a private citizen or as a corporate h citizen, any action that I want to take of any type that is i 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. p 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 j to, and will not, use force or the threat of force to compel obedience i 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-t hibited activity" and LILCO is simply " planning for and responding to a radiological emergency" and "not regulating an emergency response." The plaintiffs' argument is rather simple. They maintain that ) the activities which are to be performed by LILCO employees as delineated I in the PLAN are governmental functions and amount to a usurpation of the y STATE's police power and thus is prohibited under New York State Law.
- j 9-11 t
o s q THE STATE'S POLICE POWER ~ A resoluti~on of the controversy herein necessarily involves a discussion of the, source, nature and exercise of the police power of the x-STATE. (a) THE SOURCE In our system of government, the police power is an inherent l attribute and perogative of state sovereignty (Teeval Co. v. Stern, 301 N.Y. 346, cert. den. 340 U.S. 876). The Tenth Amendement to the - Constitution of the United States specifically provides that the exercise of 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 even before the turn of the 1900's (See Nunn v. People of Illinois, 94 U.S. 113). (b) THE NATURE One cannot deny that the police power is the STATE's most essen-tial power (People.v. Bibbia, 262 N.Y. 259, aff'd, 291 U.S. 502). Nor can one ' dispute that the protection and safety of persons and property is unquestionably at the core of the STATE's police power (Kelly v. Johnson, 425 U.S. 238). Our courts have continually and consistently ruled that the protection of the public, health and safety is one of the acknowledged pur-poses of the police power of the STATE (Adler v. Deegan, 251 N.Y. 467; t Yonkers Community Development Agency v.. Morris, 37 N.Y.2d 478, 373 N.Y.S.2d,
- 112).
(c) THE EXERCISE 6 lato ;nay exercise 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 exercised by the STATE or by governmental subdivisions upon whom the State Constitution or State laws confer such power. In fact, 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 con-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.S.2d 545, aff'd.301 N.Y. 801; gPeo le ex rel Elkind v. Rosenblum,~184 Misc. 916, 54 N.Y.S.2d aff'd. 209 A.D. 859, 56 N.Y.S.2d 526). 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 radiolocical accident at Sho.reham. an am:. s st 1Wj s y ,g mf;p jG{ 4,gQ1 e f, ~ .y. 3 3gg .;p, 9gg y -: c. m:..ws steps.'they should~take'tojprotect themselves.1 lLILCO? intends d; 'I t Jintendst'ofdeclaiefan?cmefgency$andidv' ids 41Eizbh thei$ j i manage 71i;7 a major, full-scale evacuation ~ ~ofl'a 160 : square mile :areab 'ItDintends l I close public highways, re-route -traffic 1and fdirect.the1flowfof; traffic. 4fa' The utility intends to decide 1upon and oversee steps;to secure public;7f' - health within a fifty mile; radius of~the nuclear' facility'6yLILCouintendsi f to oversee' evacuation centersSfor;morelthanT100',000 peopletz;Itzintendsyn' i i to decide when and in what fashion' citizens may ~ return 7 to theirzhomes' J4. j in previously contaminatedJareas;. '?. - 1 m .. y
- g; s
j LILCOmaintainsthat1hese-actions:donotinvo5veEgovernm'enbalb 7 functions and that its proposed " management" ofi heLevacuationtof thei i 'H t residents of Suffolk County.would not involvean exercise of-the. STATE'.s1 ~ police' power. What is_the_ basis of,LILCO's-assertion?. 27J ~ =P y ? - ::( - ym - y Two reasons are advanced by.LILCO for.its < stance. LFirst,1LILCO _, does not propose to use force or the threat of :forcejtoicompeluobe'dience' ^* r to its recommendations. Second, the: essence of 1the, STATE's Lpoliceipower t - j is regulation and the ability'to incarcerate persons who engageZin1 pros r hibited activity. LILCO is merely.planningsfor.and responding,to a. radio,-j r logical emergency in carrying out; the functions :in the PLAN' and notireguu^ 1ating an cmergency response. c. 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'th,e ~ imposition of penalties as indicated by-the~following: language lincthe case'1 of Branden Shores. Inc. v. Incorporated Village of Greenwood. Lake',- ~ 68 Misc.2d 343, 325 N.Y.S.2d 957 at page 960: "The term " police power" hac often been defined as' that - M power vested in the Legislature to make,fordain and= establish all manner'of wholesome and reasonable. laws, statutes and ordinances ~, with penalties or without,1not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of subjects of the same. Whatever affects the peace, good-order, morals and health of the~ community comes within its scope." Furthermore, the bold statement that the. PLAN is devoid ~of,any coercion is incorrect. Does turning a two-way street.intota one way street I leave motorists free to drive as and where they wish? Likewise, does parking LILCO vehicles in traffic lanes on the Long_ Island Expressway in critical locations afford motorists a freedom of choice? Is a motorist thus compelled to travel in accordance with the route set out in the PLAN?- i Does LILCO REALLY believe that its declaration 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 i that its own actions do not " regulate emergency responses" but rather consist of " planning" for and " responding" to a radiological emergency. I. l 7 Y/ 'fl, 65 h e-1 y 7' 4, ' ] ,j
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~~ 4 ,s ,3 13 : / %"Q 'Q.. w i~ .'7 1.11.CO. :i n.; "pinnning"' 'for in Eradiological'icmcrgency1woU1 d c i ni e f rec tDim, _ 1 performingifunctions thatl are'gobern:denta191n> nature. J ;Ini" responding"' r ' to'a radiologicalfemergencyl6thelutility would3 undertake?tolperform acti-r vities that are reserved ~to'the: STATE and.its ppliticallsubdivisions".M "~ -,e-In.f act,' the Courts of.:the. State have recognized that the func'. 4 tions-LILCOeintends to' perform ^ fall;withinithefSTATE's historic, police, 7 3 power. 'Sec. eg. ~ Yonkers Community: Development-Agency:y. Morris,137t N.Y. 2d H 478, 373 N.Y.S.2d 112 (1975), amp. dismissed,-423 U.S.11010-(1975)? (matters concerning.the-public health,, safety.and' welfare:are-withinith'e' ~ State's police. power): Royce v.~Rosasco, 159: Misc. T.236, _287-N.Y.S. 692 (1936).(abatement. of public emergencies is within. State's - police power). People v. Bielmeyer, 54 Misc.2d 466, 468-69,.282 N.Y.S.2d;79L.(1967) ("It has long bcen recognized that :the powerf to. regulate ;md.controlzthe' use of public roads and highways.is primarily the exclusive prerogative, c of the States."); Tornado Industries,' Inc. v.. Town. Board:of Oyster-Bay,- i 187 N.Y.S.2d 794 (1959) (control of traffic is a matter within the l police power);. City of Utica.v. Water' Pollution, Control > Board,-6 App.Div.'2d 340, 177 N.Y.S.2d 47 (1958), aff'd.,-5 N.Y. 2d 164, 182 N.Y.S.2d 584 (1959)' l (control of water. pollution is.within the public power); ~Sec. henerally, ~ l N.Y. Const. Art. I, sec. 6,' notes 681 909-(McKinney)). I No amount of semantics can' change the'true meaning of'the ~ activities which LILCO proposes to perform in-the event of.a radiological accident at Shoreham. No amount of ink can. cover up-or blot out the fact ) that LILCO's " intended functions" are; inherently gover'nmental in nature: ~ and fall clearly within the ambit 7of.the STATE's policefpower. i THE DELEGATION OF POLICE PO'JERS i f Does LILCO have any statutory authority toicxercise-the. functions' contained in the PLAN? How are the STATE's police' powers delegated? Have~ i any of these-powers been delegated.to'LILCO? r j (a) TO LOCAL GOVERNMENTS the COUNTY, TOWN and other local governmental subdivisions have t l been delegated "nearly the full measure of the STATE's police power by the State Constitution and various State statutes" (Hoctzer v. County of Erie, 497 Supp. 1207). Article 9, Section 2 of the New York State Constitution is the primary source for the authority of local governments to exercise the police power. Section 10.la(12) of the Municipal Home Rule Law expressly delegates police power to governmental units by. con-ferring authority upon them to " provide for the well-being of persons or property therein." Thus, these constitutional and statutory provisions,. j in of themselves, authorize the COUNTY and TOWN to exercise the STATE's police power. (b) TO PRIVATE CORPORATIONS The Court has been unable to find any provisions in the State Constitution or State statutes which authorize LILCO or any cther private corporation to exercise any portion of the STATE's police power. In fact, any attempted delegation of police power to LILCD would amount 12 -
x to an'unlad$ulid51egatidn7ofigovernmental powersi(See'20 N.Y. Jur. 2d, " Cons titutionalE Law" "5183 )'. JA(governmental unit can not bargain away its police-power'to a p'rivaterpartyfor organization (Beacon Syracuse Associates:v. City of-Syracuse,-560 F. Supp. 188). Governmental functions., and responsibilities cannot be surrendered by contract where police power, public safety and welfare aie involved (Patrolmen's Benevolent ' Ass'n. v. City.of Nc0 York, 59 Misc.2d 556,'299 N.Y.S.2d 986). CORPORATE POWERS LILCO:is nothing more than a creature of the STATE. Corporations, I unlike natural-persons, possess only those powers that have been conferred upon them by.the state of their incorporation (14 N.Y. Jur. 2d " Business Relationships, 5340). Corporate powers do not exist merely because they are 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, Cyclopedia of Corporations' 52476 - 2486, 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 statutes? Section 11 of the Transportation Corporation Law grants electric j 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 empowered to acq6 ire and' dispose of necessary machines and to transmit and distribute electricity through suitable wires and other conductors. Such corpora-tions can use streets, public parks and public places to place their poles, 6 pipes and fixtures, but only with the consent of the municipal authori-ties. These corporations also have power to acquire real estate, for corporate purposes, but only in the ma~nner prescribed by the eminent domain procedure law. Thus, even in areas necessary to the conduct of their businesses, utilities can act only under express legislative grants of power and with the consent of municipalities. Section 202 of the Business Corporation Law sets 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. l Thus none of these express powers bestow upon LILCO the authority 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 .I claimed authority to implement the PLAN. Instead, LILCO seeks to rely on " implied powers" which existed at common law and is now codified in Sec- . tion 202 (a)(16) of the Business Corporation Law. The latter provides that a corporation has "all powers necessary or convenient to effect its corporate purposes." LILCO states that one of its corporate purposes is to create and sell electricity and thus it has the power to build or oper-i ate a power plant such as Shoreham. The operation of Shoreham, according to l t 9 ?LILCO',':is, conditioned upon the existence of an adequate offsite emergency n ~; plan. iThus'LILCO: reasons thatuit has the implied power to implement the -PLAN in furtherance of its corporate powers. ~, LILCO's view of the scope of implied corporate power has no limit'. 'Furthermore, it has no support in the cases which LILCO has put Ifl forth as supporting its theories. For example, it cites the following 9 four cases which held: I k ' 1. That a corporation has implied power to make charitable h contributions for the benefit of the corporation and its employees j' (Steinway v. Steinway & Sons, 17 Misc. 43, 40 N Y.S. 718). 2. That a corporation operating a home for. persons 60 years or l -older has the implied power to admit a 59 year old (In Re Heims Estate, 166 Misc. 931, 3 N.Y.S.2d 134, aff'd. 255 A.D. 1007, 8 N.Y.S.2d 574). 3. That a construction company may also perform related professional engineering services (John B. Waldbilling, Inc. v. Gottfried, 221A.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 ~ agreement, provided such payments do not constitute a prohibited restraint of trade (Leslic v. Lorillard, 110 N.Y. 519). This' Court can not fathom how LILCO expects to support its claim W of authority to'de'clare an emergency and assume responsibility for the y evacuation of over 10,000 people on the basis of these cited cases. i the Court is at a loss for LILCO's reliance upon a
- Likewise, j
1901 case, City Trust Safe Deposit and Surety Co. of Philadelphia v. 1 Wilson _ Manufacturing Co., 58 A.D. 271, 68 N.Y.S. 1004 for the proposition l f 1 that "it is difficult to say in any given case that a business act is not within the powers of a corporation." Ironically, the City Trust case did not-even involve New York State Corporate Law. Defendant, a West Virginia corporation, sought to avoid an indemnity agreement previously given. It argued that its act was "ulta vires" under the laws of West Virginia, but it failed to offer any evidence as to the West Virginia Laws. The 3 i court held that, absent such evidence, defendant could not avoid its j-contractual obligation. Does LILCO sincerely believe that a judge writing a decision in i-1901 would have considered that the direction of traffic or the declara-tion of a public emergency constituted a " business act" as the term was I employed in the City Trust case? l LILCO is mistaken in its view that the power to undertake actions i necessary or convenient to effect its corporate purposes has no bounds, i 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.S.2d 174). The implemntation of the PLAN amounts to an l t
w s' 'e .A A, q 1 .p ,m jp jz 7g exercisc of the police power. The latterican?onlyjbe ~ exercis'edl$yftke.[Qj STATE and upon proper delegation ~,'the municipalities ~., Thefexercise.of such:p s 3 power by LILCO would accordingly' violate the public policy 'o'f; this state., ~ -.g THE EXECUTIVE LAW' ARTICLE 2B 3 LILCO claims that the activity which it proposes to~tak'efunder~ l; c its PLAN is directly supported by New York State Executive. Law,~ Article 12B._c This law is entitled " State and Local Natural and Man-Made;DisasterJPreb l paredn'ess" and is found in Sections 20 - 29 of the' Executive 1 Law What was the intention of the LegislatuiE*in enacting this' law? y What does the law provide. Article 2B of the Executive Law involvis the=# distribution'of powers held.by the Executive Branch of State Government., I t 'c l e~a r l y' ~' expresses the intention of the Legislature to confer.phe' STATE'sipowertto' plan for and to respond to disaster situations solely upon: State ~and local, 3 government. It establishes a framework for state _ and clocalfco-operation ; in planning and preparing for emergency responses to all kinds of disasters, including nuclear accidents. Thus, this Statute efBates:a state agency, the Disaster Preparedness Commission (DPC) to coordinate state andalocal ~ emergency responses. This legislation authorizes each' county and city.to plan for disasters and delegates authority to STATE and~ local. officials to effectuate these functions. ~ y The Court, no matter how many ~ times it has freadl and!re-rea'd. Article 2B, could not find any authorization for LILCO, express orfimplie~d,. to exercise the STATE's police powers in emergency situations. What.is 4 the basis of LILCO's claim that Article'2B of-the Executive Law author ~izes-J it to implement its PLAN? LILCO rests its claim of authority upon _two sub-paragraphs, Section 20-1(a) and Section 20-1(e) contained in the statement of policy-that constitutes the preface to Article 2B. Section 20 of Article 2B of the Executive Law provides as follows: "S20. Natural and man-made disasters; policy,_ definitions-1 1. It shall be the policy of the state that: local government and emergency service organizations a. continue their essential role as the first line of: defense-j in times of disaster, and that the state provide appro-priate supportive services.to the extent necessary; 3 b. local chief executives take an active and personal role in the development and implementation of disaster prepared-ness programs and be vaeted with authority and responsibil-ity in order to insure the success of such programs; state and local natural disaster and' emergency response c. functions be coordinated in order to bring the. fullest pro-l tection and benefit to the people; L - 15 L__
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Jgh n i N&_"J' N t ' W.Q } - m noe W a M '. s 3ga,<3e 4 '+ _w' 74.s o - r: v. ,lQ* 4 'd.s. state resources bd'torganizedian,. N"T' 'Y +*4d Y -^ jf" ~ n. vprepared t for,_him,jg n'ned-C ' - 4, - ~ j. ~ iate effeetive ' responsRto Tdisa's'rer's' which)are be ondMS :,.. %Il j theEcapability of localigovernments andtemergencyf= service l~~ f 7 i
- organizations; andr
- FR
-w 2. =. -~ .~ n..r. ma. . state'and,loca1Eplans,_organizationaliarrangements'1 1 d I e.. i and: response lcapabilityfrequired;to executeithe3provisionsF 1 M" 4 L .of this article shall beLthe.most effectivejthat"currentr % i circumstances and; existing :resourcesEallow. '~ ~' r >z . : M 1..." . di' 2. As usedlin.thistarticle thejfollowingLterms shallthave n ;F f a the following meanings- , 1*f '" disaster" medn's ~ occurrence ;or_ ~ imminent th$e.it of jw'idew j ~ ' " a.- spread 'or severe" damage, injury, orfloss of. life or. propertyK s resulting from-any natural or man-made causes,Lincluding,; ? !j but not limited to. fire, flood,' earthquake, hurricane," tor T nado, high water landslide, mudslide, wind, storm,. wave action,? [ volcanic activity epidemic, air ~ contamination, blight,Edrought,l infestation, ' explosion, radiological. accident 'or : water :contam- .ination. s b. state disa' ster. emergency" me'ans 'a' period b'eginning 4withi j a declaration by the governor that a disaster existsiandtend-r ing upon the termination >thereof.- t c. " municipality" means a"publicicorporationiasidefinediin ~ ~ subdivision one of section; sixty'-six of thetgeneral;constrsc-J l tion. law and a spe.cial district as defined.in; subdivision sixteen of 'section1one hundred two ;of1the real propertyftax a law. .~. d. " commission".means'the_disasterJpreparedness"commissioni c created pursuantlto section twenty-one.of,thisLarticle, u c d ~ " emergency services organizat[ ion" 'means a,public or pri-- e. vate agency, organization or group organized andLfunctioning for the purpose of providing fire, medical, ambulance, rescue ~ housing, food or other services directed.toward : relieving j human suffering, injury or loss of life or damage to' property'. as a result of an emergency,. including non-profit and govern-1 mentally-supported organizations, but excluding governmental 1 agencies. 1 ) f. " chief executive" means: 1 (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 j legislative body; (3) a mayor of a city or. village, except where a city or vil-lage has a manager, it shall mean such manager; and (4) a supervisor.of a town, except where a town has a-j manager, it shall mean.such manager. f. i s { 8
6 i 'This Section states general STATE policies including the proposi-tion that " local government and emergency service organizations continue their essential role as the first line of defense in times of disaster" and that the STATE shall provide appropriate supportive services to the extent necessary. This policy statement, contrary to LILCO's assertions, does i not explicitly or implicitly authorize private corporations to exercise l police powers in the event of a nuclear accident. I Section 20-1(a) acknowledges the role of private groups called " emergency service organizations" in providing : services directed toward relieving human suffering, injury or less of life or damage to property" such as fire, medical, ambulance, food, housing and similar rescure ser- ] vices. These private emergency service organiz.ations have not.been dele- ~ gated in any way, shape, manner or form to the governmental functions which 4 the PLAN contemplates. The Legislature,_ if it intended to delegate the broad-scale powers LILCO claims, would have done so in clear explicit language in the substantive portions of Article 2B which presently only ] confer these powers upon state and local governments. CONCLUSION These declaratory actions which arise out of LILCO's attempt to secure approval of its utility sponsored PLAN clearly present a justi-r ciable controversy and the complaints 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 PLAN c solely with its 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 governmental functions. i There is a paradox.which is present in this controversy and involves the philosophy of the creation of our government. In order to y 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 I the Constitution were not the sole inventions of the founding fathers. Franklin, Jefferson, Madison and other colonial leaders were learned and g widely read men, steeped in the ideas of the English political phncsophers. 8 The most influential of these philosophers upon the founding fathers was John Locke (See Clinton Rossiter, "1787: The Grand Convention", ~[MacMillan, 1966]). Locke, an avid opponent of the divine right theory of government, put forth his ideas about the creation, pu.rpose and powers of government in his " Treatise of Civil Government" written in 1689. His ideas, for the purpose of this discussion, may be summarized as follows: ~m
o 1 j 1. Individuals originally existed in a state of nature. Each indiv' dual had the right to do whatsoever was necessary for his j preservati<r and the right to pnish those who commn:tnd crimes against a the laws of nature. Locke called these rights the " supreme power". ~ l 2. The weak were at the mercy of the strong in the state of d nature. Each individual, because of the situation, entered into a 1 " social contract" with every other individual and this social contract resulted in the creation of a civil society or community. The " supreme power" is surrendered by each individual to the community. 2 I 3. The community is created for the purpose of establishing a 1 goverr. ment, which is accomplished by means of a trust. This means that 1 government only enjoys a " fiduciary power". Thus the community does not j surrender the " supreme power but merely entrusts it to government. i 4. The powers of government are limited. Government is accbunt 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 governments by means of a free election for Locke's right of revolution). What is the paradox? The STATE and COUNTY would be breaching their " fiduciary" duty to protect the welfare of its citizens if they permitted a private corpora-tion to usurp the police powers which.:ere entrusted solely to them by the community. LILCO has to realize that this is a government of law and not of men or private corporations (See John Adams " Draft Ma s s a chuse t t s Constitution. Declaration of Rights. ART XXX, 1779). On the other hand, the STATE and COUNTY maintain that they exercised their police powers in order to protect the community in their determination not to adopt or implement any emergency 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 nucicar accident at Shoreham as envisioned by Article 2B of the Executive Law. LILCO is in effect reminding the STATE and COUNTY governments that "Non est Princeps Super Leges, Sed Leges Supra Principem" (The Prince is not above the Laws, but the Laws above the Prince, Pliny the Younger, " Panegyric of Traj an" Sec. 65 100 A.D. ). There 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[v commencing an action in the nature of a writ of mandamus or in the arena of public opinion which manifests itself by the results of an election. Settle judgment on notice. 4" 2,n x ~.. - i I J.S.C. I l. 18 -
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- '*a' MaY 31a 1985
""""'"*".".s'*."27...., va6s,=ons e..me... v mo...a amoso essse=ons voz ass atoo o..sev. 6 no .o..... To: Chairman Palladino, Commissioners Roberts, Asselstine Bernthal and Zech Samuel J. Chilk, Secretary of the Commission Judges Rosenthal, Edles and Wilbur T Judges Brenner, Morris and Ferguson Judges Margulies, Kline and Shon Judges Kelley, Bright and Johnson Docket No. 50-322-OL (Shoreham Nuclear Power Station, Unit 1) Notice of Issuance of Suffolk County Executive Order 1985-1 b The Suffolk County Executive yesterday issued the attached Executive Order 1-1985, directing the Suf folk County government to review the Shoreham Emergency Response Plan now before the NRC and FEMA and to conduct an exercise of that plan in conjunction with LERO, with the County assuming command-and-control functions. Re-lated articles appearing in this morning's Newsday are also at-tached. The issuance of Executive Order 1-1985 is clearly an event of o j significance for this proceeding. It is too early to tell the i exact contours of its effects. LILCO will endeavor to keep all parties notified and will request any appropriate schedule or other modifications. Respectfully submitted, 1; . W W lff h M [~ 8 a Dy'ald P.
- Irwin,
/' " ene of Counsel forf ( Long Island Lighting Co. i 1
I LILCO, May 31, 1985 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) Docket No. 50-322 (OL) I hereby certify that " Notice of Issuance of Suffolk Coun-ty Executive Order 1985-1" with attachments was served on the following persons this May 31, 1985 by hand, as indicated by an asterisk, or by telecopier, as indicated by two asterisks, or by Express Mail, as indicated by three asterisks, or by first-class mail, postage prepaid. Chairman Nunzio J. Palladino* Alan S. Rosenthal, Chairman
- United States Nuclear Atomic Safety and Licensing Regulatory Commission Appeal Board 1717 H Street U.S. Nuclear Regulatory Washington, DC 20555 Commission Fifth Floor (North Tower)
Commissioner James K. Asselstine* East West Towers United States Nuclear 4350 East-West Highway Regulatory Commission Bethesda, MD 20814 1717 H Street, N.W. u-Washington, DC 20555 Gary J. Edles* Atomic Safety and Licensing Commissioner Frederick M. Bernthal* Appeal Board United States Nuclear United States Nuclear Regulatory Commission Regulatory Commission 1717 H Street, N.W. Fifth Floor (North Tower) Washington, DC 20555 East West Towers 4350 East-West Highway Commissioner Thomas M. Roberts
- Bethesda, MD 20814 United States Nuclear Regulatory Commission Howard A.
Wilber* 1717 H Street, N.W. Atomic Safety and Licensing Washington, DC 20555 Appeal Board United States Nuclear Commissioner Lando W. Zech, Jr.* Regulatory Commission United States Nuclear Fifth Floor (North Tower) Regulatory Commission East West Towers 1717 H Street, N.W. 4350 East-West Highway Washington, DC 20555 Bethesda, MD 20814 Samael J. Chilk* Lawrence Brenner, Esq.* Secretary of the Cc:missian Atomic Safety and Licensing United States Na:1 ear Soard Panel Regulatory Commission U.S. NRC Washington, D.C. 20535 4350 East-West Highway fourth Floor (West Tower) Bethesda, Maryland 20814 j
.~ I 1 Dr. Peter A. Morris
- Judge Glenn O. Bright *
~ Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board, United States U.S. NRC Nuclear Regulatory Commission 4350 East-West Highway Fourth Floor Fourth Floor (West Tower) East-West Towers (West Tower) Bethesda, Maryland 20814 4350 East-West Highway Bethesda, MD 20814 Dr. George A. Ferguson* Atomic Safety and Licensing Judge Elizabeth B. Johnson
- Board Oak Ridge National Laboratory School of Engineering Building 3500
~Howard University P.O. Box X 2300 6th Street, N.W. Oak Ridge, TN 37830 Washington, D.C. 20555 Herbert H. Brown, Esq.** Morton B. Margulies, Chairman
- Lawrence Coe Lanpher, Esq.
Atomic Safety and Licensing Board Christopher M. McMurray, Esq. U.S. Nuclear Regulatory Commission Kirkpatrick & Lockhart East-West Tower, Ra. 461A 8th Floor, 1900 M Street, N.W. 43$0 East-West Hwy. Washington, D.C. 20036 Bethesda, MD 20814 Bernard M. Bordenick, Esq.** Dr. Jerry R. Kline* Oreste Russ Pirfo, Esq. Atomic Safety and Licensing Board Edwin J. Reis, Esq. United States Nuclear United States Nuclear Regulatory Commission Regulatory Commission East-West Tower, Rm. 427 7735 Old Georgetown Road 4350 East-West Hwy. (to mailroom) Bethesda, MD 20814 Bethesda, MD 20814 Mr. Frederick J. Shon* Donna Duer, Esq.* Atomic Safety and Licensing Board Atomic Safety and Licensing United States Nuclear Board Panel Regulatory Commission United States Nuclear East-West Tower, Rm. 430 Regulatory Commission 4350 East-West Hwy. East-West Tower, North Tower Bethesda, MD 20814 4350 East-West Highway Bethesda, MD 20814 Judge James L. Kelley,* } Chairman, Atomic Safety Fabian G. Palomino, Esq.** j and Licensing Board Special Counsel to the Governor United States Nuclear Executive Chamber, Rm. 229 Regulatory Commission State Capitol Fourth Floor Albany, New York 12224 East-West Towers (West Tower) 4350 East-West Highway Mary Gundrum, Esq.*** Bethesda, MD 20814 Assistant Attorney General 2 World Trade Center j Room 4614 New Yor<, New York 10047 0 i
i Stewart M. Glass, Esq.** James B. Dougherty, Esq.*** Regional Counsel 3045 Porter Street Federal Emergency Washington, DC 20008 Management Agency 26 Federal Plaza, Room 1349 Martin Bradley Ashare, Esq. New York, NY 10278 Suffolk County Attorney H. Lee Dennison Building Ralph Shapiro, Esq.*** Veterans Memorial Highway Cammer and Shapiro, P.C. Hauppauge, NY 11788 9 East 40th Street New York, NY-10016 The Honorable Peter Cohalan Suffolk County Executive Stephen B.
- Latham, Esq.***
County Executive / John F..Shea, Esq. Legislative Building Twomey, Latham & Shea Veterans Memorial Highway 33 West Second Street Hauppauge, NY 11788 P.O. Box 398 Riverhead, NY 11901 Jay Dunkleberger, Esq. New York State Energy Office Ms. Nora Bredes Agency Building 2 Executive Coordinator Empire State Plaza Shoreham Opponents' Coalition Albany, NY 12223 195 East Main Street Smithtown, NY 11787 Mr. Martin Suubert c/o Congressman William Carney Gerald C. Crotty, Esq. 1113 Longworth House Office Counsel to the Governor Building Executive Chamber Washington, DC 20515 State Capitol Albany, NY 12224 Docketing and Service Branch (3) Jonathan D. Feinberg, Esq. Office of the Secretary New York State Department United States Nuclear of Public Service, Staf f Regulatory Commission Counsel Washington, DC 20555 Three Rockefeller Plaza Albany, NY 12223 Mr. Marc W. Goldsmith Energy Research Group Spence W. Perry, Esq. 4001 Totten Pond Road i Associate General Counsel Waltham, Massachuse~tts 02154 [~ Federal Emergency l+ Management' Agency Robert E. Smith, Esq. 500 C Street, S.W. Rosenman Colin Freund Lewis (_ Room 840 & Cohen ll Washington, D.C. 20472 575 Madison Avenue New York, N.Y. 10022 i Atomic Safety and L::ensing i Board Panel Alan R. Dynner, Esq.** United States Nuclear Kirkpatrick & Lockhart [ Regulatory Commission 1900 M Street, N.W. l Washington, D.C. 20355 dashington, D.C. 20036 Atomic Safety and Licensing Appeal Board Panel United States Nuclear Regulatory Commission Washing ton, D.C. 20555
o. Robert G. Perlis, Esq.** MHB Technical Associates U.S. Nuclear Regulatory 1723 Hamilton Avenue Commission Suite K ~ 7735 Old Georgetown Road San Jose, California 95125 Maryland National Bank Bldg. Bethesda, Maryland 20814 Howard L. Blau 217 Newbridge Road H ksville, NY 11801 KftyEf. McCpskey Hunton & Williams ( 707 East Main Street Richmond, Virginia 23219 DATED: May 31, 1985 b.* L i I e 1 l l iu
PtTam F. COMA 4 surm a coueny ans.AN cutive omcz oF THE COUNTY EXECUTsvt Jowa c. 04u.Aoman cener osaurv covestv anscutivs FYRrilTTVE ORDER IMIBER i Amos Dy th1r power <wsn d'in'me unde'r Article II-B of the New York State Exesutixa Law and.an2 ef the-3UF70LK'COUNIT:' CHARTER. I hereby determine that it is neces'sary for me to cause to be reviewed and evaluated the Local Emergency Re-Sp9nse Plan for Suffolk County presently hafnre the Unitod States Nuclear Regulatory Cc:.ninston"and-the-Fo8ctal Emirgen-cy Management Agency. I therefore dirnce the conuainioner of Polu.= and Commissioner of the Suffolk County Planning Department to use whatever resources of the government of' the County of Suffolk.are necessary in order to eemplete a review and evalu-ation of the above Local Energency Response Plan and carry out and cause to be conducted a test and exercise of the above said Plan in conjunction with the Luc.1 'mergency Response Organi-tation (LERO). I further direct that agents of the County of Suffulk assume the tunction of command and control with imple-mentation of the police powers of the county of Suffolk over the conduct of said test and exercice. IN WITSESS WHEREOF, I herehy se t tr.y-hard this-OY-day of May, 1985. - 6eroc ~ se. m eu,~eo,,,ce.v.so. o PETER F. CDHALAN .'.'.l"..'.7.*O.",*" ' ' SilFF01.K COUNTY EXECUTIVE
TIIF l.8 PM. Isl.AND NEWSPAPER e FRIDAY, MAY 31,1985 e 30 CENTS e NASSAU
- M.,f,fhi'$: -.
.na ne - Cohs;la.;.s.;-wDrops. Shoreham Fight . fgy.- .e . a?:r m a g-- . %.o.w, l ' 'The unique local ~ 'I am dimelint-W i conditions of Long ~ the county to' -. A Island make it, participate,in 4.,%j imposs,ble to emergency.' i l protect the public~ planning'.... if,a "'- rW emerge.'ef thency' plan- . safety if there were 1 a serious accident' found to be 4 2...?- i at the Shoreham ' ~ plant 7./In short, favorable theri-fm . 1 l there can never be not umad to 4he^ i
- c. ie operation of.ZOf.:
i emergency the plant.'. preparedness' to ~ l Protect our - ~ , 4;[i. ; .'n..W.1-l citizens.'.
- .' '.' 9.T
- i i
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- Y I
l Orders County Evacuation Drill; LILCO to Pay $130MinBackTax Coverage Begins, Pages 4-5 i
q . There is no competing ...New faces and new ~ value, be it political, ideas present us with economic or otherwise, I new opportunities to ~ giving the public's safety j the economics of - l ' that could justify our reach a solution on ' any priority other than Shoreham. the very highest.' l Jan. 31,1984,Cobalan on the -Feb.16,1983,Cohalan announcing } naming of William Cataconinos his position on emergency as LI140's chairman preparedness for Shoreham %e have not publicly changed our position on 'The county government 'Shoreham. We still have will not become LILCO's two concerns, emergency pawn, and we will not be planning and safety.... pushed by.LILCO into compromising the truth these people in the ..] Suffolk County will opposition... think the not walk away from the only problem is Shoreham. '.i,'here are fact that Shoreham other problems out there cannot operate.' udng bd MWty ' - March 8,1983,in a Newsday op-ed of the county.' essay - May 7,1985, reacting to criticism he had soAened his position. "The most. damning [ '...I'm going to thmg I can say about cooperate in the review ^ Pat, and it's the truth, and evaluation of the s. is his lack of plan on the table and consistency and carry out a drill, and to political integrity., that extent you could extrapolate I've dropped - Nov.1,1983, attacking Assemb. Patrick Halpin's shift to my Opposition to the plan support of Shoreham RS long as the results of the drill are positive. - May 30,1985, aAer signing the executive order directing county authorities to review LILCO's evacuation plan. I^O i i
s Major. Hurdles Before i Startup* By John Mcdonald m. an evacuation plan for the Shoreham nucle-( Q* ([,' ,,s Suffolk County's participation in testing ' (,.g ar power plant is a key step toward ning .g the plant,but longIsland Lighting. still . g, must clear several hurdles before the 84.2-billion plant soes on line. f Although t'be dramatic shift in position by Suffolk County Esecutive Peter F. Coha-g*. lan is a mWor victory foe Lil40, the utility .,j still faces ador political and regulatory / hurdles that block the plant's opening. ? turn around Gov.Mrioluom!cma is how to Foremost amo the rob o s o,,osition. sw .+ a. 'Ibe Suffolk County legislature is strongly s, ,i committed to keepmg theplant f' rom open-Ing. Other problems include the plant's problem-plagued backup diesel generators. 4.. .~. Also, the emergency evacuation plan and t - low power tests of the plant's equipment .; 1 # 3' still must be found to meet Nuclear Regula-P tory Commission standards. LILCOs li-L7 M".. L oense to conduct low. power tests was re-M. voked by the NRC :n February so that the ... [ Y F u NRO could reeenaider egdpm at a*curity (mues. -.A ? ;/' L Whether Cuomo's position on the Shore-
- u.
ham issue will change because ofCohalan's , t. SN.'. swing is yet to 14 determined. In 1983, VN Cuomo said only that he would not impoes
- ,.sr
,./ an emergency plan on Suffolk after the J R; y county decided not to adopt one. But Cuo-
- '~r
N., o mo's position since has hardened.
- 0b.'k.nsie.am.
In a May 21 letter to President Ronald Mg(p. Reagan, Cuomo said,"Ite independent de- ~~ claions of Suffolk County and New York nm r.n State against adopting or implementing an LILCO Chairman William J. Catacosinos during interview emergency plan for Shoreham were made to protect the safety and welfare of the public and followed extensive analysis and deliberations." cial aid package for the Southwest Sewer District In the same letter, he warned the Reagan admin-and to wrest from the legislature authority over istration not to attempt to" promote operation of the amendments to the county operating budget. plant over objections of the State of New York sad the As for LILCO, it still must clear a number of County of Suffolk. New York State would consider regulatory hurdles, some of which still may take a any such action an aft'ront to its sovereignty..." significant amount of time to itcpfement. Among While Cohalan's party holds a majority in the them are the following-county legislature, Cohalan's shift does not guaran-e 14w power Testa. The NRC is considering 4 tee that Republicans in the legislature will follow LILCO's request that the company be allowed to test suit. Cohalan maintains that the legislature has no the plant at up to 5 percent power with a gas turbine role in deciding whether the co2nty w111 participate and mcbile diesel generator, as temporary backup fow.erators An appeals board revoked an earlie in emergency planning. 5.:t that opinien is certain .en pewer license in February because not enough to be challenged. Up to now, on!> Presding Offi:er teu Howard ,c: siderats. was given to secunty issues. (R.Amityville) has been a ans;< tent Shereham
- Diesels. An NRC licensing board is weighing backer, with two cthers abs:mmng on occasional whether LILCO can use ita '"ransamenea Delaval anti.Shoreham vetes If a vote were taken wisy. Industrin die e' generators whi:h auffered eracks in even LIl40 supporters doubt thet rnore than four of 1983, d uring at !e e st the first 18 months of the plant's the legislature s 18 members would back opening operation. A decision is expected in June or July, the P ant.
e Emergency planning. Even with the main is-l On the other hand Cohalan has a history of sue of county participation apparently resolved,de-esentually setting his way with the legislature. He tails of the plan aiut be recast to include county lj enlisted Democrata to help him oust a troublesome emergency workers. A drill must be conducted and preending officer and changed the minds of seeming. graded by the Pederal Emergency Management 1, l., ly strong-willed legislators to put together a finan-A. gency, .s, s.. j ..c
i newcyor. i g. i Shoreham at a Giance CONSTfluCTION: Segun in 1973. Nucieer suoi loesn0 was con 91sted in January,1905.. ' POWER: 400 meGewetts to be generated by a General Electric belline weier reecer. STATUS: Awelline perminaion for low power iness from 1 to 5 percert of capocay.- Nucteer Commisalon revokedlow. power noones in for tunner conew. eramen or escway-- Piant has compia. ed tesis et esomsfy low power. SCNeouLE: Ptert preacted to go inn oom. mercial opersson by Omotor, at the earnest. . COST: Esemesse range trom 84.2 buBon W lhe plant opens for commercial operemon in Osaster, to 847 tdson, N ihe pient opone in
- June,1ees.
..e, ~ " WHO WILL PAY: Olliniele are , on ?. plans to loosen Shorchern's in9ect on irates, but many would need approval flom I me esses legisleiure and govemor. 5 as me' g proposals were esopaed, rates woiAd W crease 2.2 percent a year for 5 years and + ' LILCO would deser for 10 years recouping 83.5 tMon in Shoreham revenues.The elets Pubec Service Commiselon le e recommendeson met LILCO be to
- beer between 41.2 and 81.9 timon of me
' plent's cost beceues of poor mana0ement. l I' PATH TO OPERATION: A ditt must be held to test a to evenuses more then 130.000 ' ! persons ethin a It> mile redue of me in me event of a ruecteer accident. The must approve met plan. An NRC board le to decide wtNn two mones whether to pet. mit LILCO to operses Shoreham wth emer-Deckup doest gemretore that have un-l emenelve repene sinos breeldne down during innial tesis in Augues.1es3. Wassy.hA g& E" *M, r
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Newspw3* Cohalan Ends FightXgainst L ~ Shoreham Cohalan has spent two years and morsithan 812 By Rkk Brand million in county knds battilas the plant, and used Susolk County Executive Peter F. Cohalan yes. th issue as the oe,nte ofm. election tarday dropped his battle against the Shoreham nu. He asid,"My tion not so m as the facts han I han no ' hN, clear plant and directed police and planning officials to run a drill of an e . evacuation plan. Rewrsing two years o staunch opposition to the my tion if the facta change." t public c51cials who have joined Cohalan in opening of the nearl completed lant, Cohalan said the Osht against Shoreham condemned his shift in an interview wi Newsde he was repared when they were informed about it late last t. to support Shoreham's if the dri proved 14gia. Gregory Blass (R.J ) said, "I successkL decialon of administration." it's the most, state executin law gan him the Almost immediatel, the plant's owner, Long Ia. Cobalan !and ting Co., sai it would now pay 8130 mil. lion in taxes it has withheld in reponse to the power to act unilaterally in ordering county county's battle against Shoreham. Th two denlop-cas to take part in emergency anning for ments, which came after wwks of rivate meetings plant. But several stators ned thelegality o. betwwn Cohalan and LILCO rman William of Cohalan's move t ni t. To operate Shonham, must get federal Catacosinos, drew quick and sharp criticism from a royal for its evacuation moduct a success. Shoreham opponents. Nuclear Re ! story Comnu.II. obtain a waiverssion regulations to use no d'i. Cohalan said, "You could extra late I've m tion to the lant as ong as the n ta of are ti." h a he added, generators for shutting down the ant in the event "Also jocta est... the d e is cast. hee were Cae. of an emergency, get its troubled merica De. sar's words as he croceed the Rubicon." Cohalan was laval Industries diesel generators certified and re. interviewed after he signed an executin order di. ceive a kil. power license. But Cohalan's action could remove what has gen. recting Suffolk Police Commissioner DeWitt Treder erally been considered the prime obstacle to Shore. and Plannin Commissioner 14e Koppelman to pr,. pare for a d 11 and assume " command and control = ham's opening - the lack of county participation in lan. the emergency! had a lose. lose situation "said Co. over the exercias.
- We basica!
Asked about the executive order at the utility's halan. "We both had our hands on esch other's Ecksville office, Catacosinos said,'This is fantas. tie, it's t." h two men said that Cohalan had throats and we were choking each other to death ... bre could be no winners and there would be inform the LILCO chairman of his intention to change his position by telephone Wedne ,and three losers - LILCO and the county were two and the other loser was the ratepaygr." Catacosinos agrud to turn over the withhel taxes Cohalan's shift comes amid a growing chorus of today on the 54.2 billion Shoreham plant. 'The rea. son for withholding the taxes no longer exists," he
- said, nuclear opponents who maintain that the county ex.
I Cohalan's decision shifts the focus of the battle to eeutive has deserted their ranks and is preparing to the county le 'alature and Gov. Mario Cuomo, who " sell out the public safety" of county residents. Since has been alb with Suffolk in fighting the plant. last September, the administration has removed fl. Cuomo has said he would continue the battle even if ery field general Frank Jones from overseeing the Suffolk dro ped its o ition. Last night, informed Shoreham battle, curtailed its lawyers' role and be. of Cohalan a action, uomo refused to comment. gun consulting en a frequent basis with top LILCO "We have not seen any wntten explanation or d eials. Justification of the county's change of position." said Es switch comes at a time when many Shore. Michael Del Giudice, secretary to the governor. ham opponents are saying the county has virtus!!y j Cuomo administration officials expressed surpnse wen its battle against the lent in the courts and at the c e and said the issue of Shoreha n's safe. with the NRC. Judges an NRC hearing officers ty, which uomo has called kndamental, hats not have endorsed the county's arguments that LILCO been addressed at all.Ny also said they had been did not have legal authority to im lement its emer. l8 } workin in the et two weeks on a bill that wouli gency plan, which used utility war ers in key roles. han h pod S Ik County financially by forcing 0 LILCO to pey its back tases immediately. . d 5 -
i m._.... ~ Cabalas enid rday 'that new infermetion cism," Cohahn asid, *! may be catering the b ~ he nathnal. ies has emerged chaut radi: tion most esciting part r,f my public earner." At weret. reheam which makes the oeunty's position in favor he said, reaction might be 'Tm hanged? !ast er a 20-mile evacuation sone no longer necesary. night, aAer informing seven SuSolk town visore, Cohalan claimed that all of them ed ren mike is really the outer limit of what is necee. w e id his move. Of the oNicials he called, only Blase and
- '7, ho Sw Asht has bwn costly. Cohalan State Sen. Kenneth Lavalle (R Port Jeterson)
Alt maintal that the expense was worthwhile be. were critical of the switch, cause of gains he said the county made in getting a Cohahn aald stak meudve kw give him b - osenty's 'iloa, Cohalan maintained.
- y,t yk the cobt '
withe has gotten the N nerosse its scrutiny ofshore-Isture. Onder thatNt la state policy the ham to the 'nt where"it's the most inspected a$ bcal chief mcudu hke an udw and pwunal in the nat " forced Lil40 to make w role in devebpannt and implemenudos ddhee. changes to its own evacuation p an, improvi g kr - g--- !- progranw and k mud wie safety; eaused an overhaul in LILCO management, j,,,, including replacement of the company chairman programs., and the hi of a nuclear vias president with es. tensin in the industry; and resulted in Although a 1983 eeunty ture resolution LI140 to treet its alternate dient gone directs Cohalan not to pate in emergency store as tal eeulemeat" for security purposes. Lag er allow state or daderal Such moves, said Cohalan,are a victory for public krvene,Cohalen said heally he 5 no. r to tdettered safety." by that resolution and the esecutive has the abdi. Ptdating to L1140's one-time proposal for a 56.5 ty to operam ladopendendy d eat resoluden * ,[ u Co y nate in J became a mere central een-I 'I 'I'" lan, L114 l hich =we':&.tigatiEan
erem.e.p=mpm.:
taking$1sNaal position,'the demand for ' p b Id i I N a ble$providing for public safety." bham needed p o r. He said his daMaa was made aboirt 10 days ous.Coblan alm said LILCO's payinent of property ago, and in that time he has met once and speksa taxes will stabilise the county's Anancial situation twice with Cawadmas. Ever einee Ca*=aadaa= now one grade abe" and improve its bond rating;n, til now, he said, th' replaced former LI140 chairman Charles the epoculative category. I in a boardroom coup in 1984, f'ahalaa and, county faced h specter of at least a 25 percent tax cosince haw met regularly. increase and layoft of up to 3,000 employees. With pg ,g,g,gg g,,,,, the 567 milli n in cash the county,especta tomorrow . tda. tors and other oSicials starting at 6 a.m 9 . la s flrom back tas paymenta,'along with another $13 He hn will meet with Treder and Koppel-million Grom the payments L1140 will give to. mana top aide Arthur Kuns to begin prepars-Brookhaven town, Cobalan said b county may tions for the drill. Cohalan said be also plans to be able to reduce tazes in 1966, although he could contact Samuel Spock, associate director of the not any how much. federal agency that supervises nuclear evacus-tionglanning,w owk his assistanain The co* nty esseutive's stance is a 180-degree i u for e drill. He said be hopes a meeting wi turn flrom his position in 1963, when Cohalan took the leed in b anti Shoreham mowment Speck could be arrac god for nest week. and said safe evacuation of the area was impossi-Cohalan also said he plans to meet with Wash. ble. "We must not tinto place a" paper plan % ington lawyer Ihrbert Brown, who has led the a sugar coated pa of platitudes which serve county's legal fight against Shoreham, to review 3 LILCO's selfinterest he said then."That would current litigation in the case. Chief Depu,ty Coun-only lull the public into believing by are pro-ty Executive John Gallagher said decimons will tacted, when la fact they are not." b county be made whether to continue various parts of the concluded that evacuation was not feasible aAer Shoreham litigation on a " case by case basis." spending 4600,000 on experta who maintained Cohalan said it will be up to Brown and his Arm that that it would take 30 heure to evacuate b yhgt)g theyptill went,tp9presagtet go3rgg
- 20. mile sono around the ant because roads the case, given dohafena 6hiff would be jammed with c.
In his re-election campaign in 1983, Cohalan used the issue to better his opponent for county 4 executive, Assemb. Patrick Halpin (D-Linden. i hureth who favored b plant's opening. At 6 time, Cohalan attacked him for lacking polittea! integrity" and having "the backbone of a choco. late eclair." b county esecutive erpressed the hope tha's both the county legislature and Cuomo would fol. Iow his lead and back his executive order for a N drill. But he conceded that ifit were put to a vote g/ of the locallawmakers, he probably would not get NV their approvst 't e
A e 4 .Cohalan's Shift: Signs f ~ s.' Were There f -,.-Uw _Y_ John Gallagher, a former sol ad-Ing with Wall Street investret l '1%e anti-Shoreham people saw it mipterator with a soA voice mild brokers, that the county might re ez-amine its once uncomproenising pool-j comias. demeaner. Just tbree.weeke aso, Leou ru=Ima taalmed that & mcvs had tion that the ans around the plant-- Campo, one of Suffolk's leading anti. no mismficance, that Jones' doctor had cosJd not he evacuated in use of a nu-clear accident. Os!!agb,r cited new maclose activista, wate C ee inan simply ordered his patient to rest. But. scient18e studies that sgsestad ra U who bed been Me key any & two that esplanaues cut no lce with parti. ation released in a as clear aseident F sans on either side of the amoreham 7'*I esa one of those who begm gag issue. "It's a good sign," IAgia. IAu would aflect a dinaller 42ea than was Peter that== is now negotiating to & ward (R Amit ), the proelding previously boueoed. sell out the pubHe sainy dthe people of5eer and sole supporterin This year, Cabalan's public com-of Soffolk County," Campo said at the the Suffolk County legislature, said at i mente became more and more equiv-ocal, and the eeunty esecutin allowel the time. tim *- Cabalan's political and intellectual But the monjolted Shoreham oppo-hinnamif to be seen with Catasesince, journey away Age Ma Shorshain op-ments, who had been given ample res* whom he later joined in a summit i position,.w slowly and subtly, sona for con 8dence fa their alliance meeting to discuss rates to pay for set the war, thers. with the county esecutive.While signs 8borehaan. And, citing increaang Ae County esecuttw, cohn-orCohalan's ebbing de stayed sub. easts, he esat a letter to Suffolk's eethusiasm k the Shonham cruse Washington law Srm tellingit to cur. lan was once the symbolof uncompr* misine hostility to long Island Light-merged until the autumn of 1984, sail tu nativtues, ing Co. and a here to the local anti-some inaWre suggest,that the procese .Itat wu ho much Air Cohalan's shonham people. 'the nwnal comse kan with a pol'itical shock nearly a broer ailles. Campo annosaced earlier this Desa a man who 1sA no room he a year earher. ~ month that Shoreham oppenents neaftAR wa' 7tuntung h reelection on an anti. who war agaisist Shoreham plathm in 1983, Camlan, would hold an escalating series of an incumbent Republican in an our-demometrations a anewed ho r ,,g, and and vowed whelmingly Republican county, eked commitment from Ce alg,o to the ht omMng could chang Ms judg. out a 22,000 vota victory owr Assemb, anti Shoreham cause. 'Ijust hope he ment that nuclear power could not be Patrick Halpin (D Lindenhurst), a 30 hasn't gooo too the that he can't get made safe for Long Island. year old Democrat little knownin the back en the right course," Campo At a Feb.18,1983, press contennce Cabalan said:"Radiofosical emergen-county outside his Babylon assembly said. At the time, Cobalan insisted his district. tion had not switched, but re-cy preparedness $se Shonham is the Some Republican strategista dnw to deny that change was m most signi8 cant issue of public safety h moral that despite various public that this county government has the wind. ibcod. 'Ibers is no competing value, be opinion polls showing overwhelming But yesterday be said he'd been It pohtical, economic or otherwise, opposition to the Shonham plant, the mulling his chaap of heart since that could justify our giving the pub-imue cut both ways in the political Jan I lle's safety any priority other than the arena and may have helped Halpin. t 9"I a wW e o Mak i highest-Two months aAer h election, Co-about this,g. he said.. 7y his own account,however,Coha-halan's once unyielding opposition to deal d ume ag me h decision I today p g raunat-lan's attitude toward nuclear power on LILCO b'88 'h'"II h *i'li8' langIsland has changed atlust three g - times. As !alip Town supervisor til In January,1984, he welcomed.*,* M ""* 1978, he took the anti Shoreham side Luro a new chairman, William Ca-I in a debate with hn Coun*y Execu. tacoeinos, by saying,"New faces and l tive John V.N. Klein. Later, under new Was proosmt us with new op-pressure ikom construction unions for. portunities to reach a solution on whom Shoreham meant jobs, Cohalan the economics of Shoreham." Al. l retreated and Ered Irving Like, a law-though he continued to call for yer representing the county in battles LILCO to abandon Shoreham,it was with LILCO. By 1982, however, fol-his first conciliatory gesture toward lowing electoral victories by several the company he called an " outlaw 19 days before Shoreham foes, Cohalan was a deter-utility"fo!!owing summer, funds for mined enemy of nuclear power again. The The first public sign of his latest re-the legal fight against Shoreham be. l tnet came in September. came a bargainics chip in another Without warning, Coha!an abruptly political battle, over the Southwest replaced Deputy County Executive Sewer District, with Cohalan saying i j Frank Jones u Seld eneral of N he wouldn't approve additional county's efforts to block Sbareham's Shoreham legal funding unless legte. l inters backed a sales tas inenase to operation. Jones, a big, boarded man bail out h sewers. with a voice like a cannon and an ap. Then came Jones' mmoval, fo11 owed } i petite for combat to mateh, made way by Gellagher's nvolatio i. in a meet-C'*--
'We Turned the issue ~ Around' ~ ~ margin of s'arety that we iaaiawl on in 1882 and Nere are esserpse pom the Newdsy inder' 1983. einw seenerday with SuhMk County Esecutu Poser F. Cohalas in wAlch Cohalos said he I feel the plant le safer now than in 1982. For is his opposition so operation of the one, emerpacy planning la battar...De feder! D Shore smelser pour I, as the county executin,pient al government now has up to 12 agencies envolved
- l han the responsibil*
Insuring public safety. Nurnber two, the level of .J17.wl.ANinty te.ge.. ales publie's heehh* Inspeedon at the plantis unprecedented...De ; anfluty end weldsre... We feel the courta, both Atemic Sehty and IJoensi Board and the NRC 1 federal and state, have definitely established that l han called the plant safe. umber three,the die. the county... is the only legitimate authority to ael and backup systems are better... Number authorise and implesment an eveeustion or an four, h new sad more competent management la emergencyplan. AndIam that the legio. also anoeer a@ chany ibt me... lature... will ese the of what rm at-tesapting. %ne will tell." If anything caught attention more than Susolk County and New York State have anything else it was the February 13, 1986, decision of the ... said they played a major rolein the federal evern. would license the plant et five percent [ pour} ment to mow Dom a mere ist approach to ... Under the responsibilities and dutiesI have, emergency planning to what we think now is a I would have been in a quandary and would have fhlt and realistic assosoment... Our interven. ... to cooperate with the authorities on an emer-tion in the licensing piecedure forced a level of gency plan to protect the health, safety and wel-quality inspection unprecedented in the nation rare or the people. ... Su5alk County forced the redesign and the totalrebuildingofb T Where se Snandal situation is eoneerned diesels and [h addit $n'oh.raneamerica Delaval LJI40 and es county had each oeer Mad ..severaladdition. in a death grip. We boe r=aHad m wry al diesels as backup equipment. death struggle and I saw that Shoreham,.in a was - >=>$ d w ar **= >=uf -w* <a i=* - r,st weeh... turcOi agreed est ee.ame a escurity standards that are applied to vital equip. ee whole surMval of Island, lawlving ment at the plant be applied to backup (diesel) [a poes e as a te equipment. his concoesion is a big vietory for us, 7 and it puts to rest h coc.eern that we've had for of county vernment due to lack of LIIf0 man 7 months * *
- taxes, es tm enee needs d lang Island and whm does the lack of1J140's tanes some Where the mensge nt ofLI140's conoorned, in... We boe had our hands on each oeer's LILCO has a nea chairman,0hoseham has a uen maa*= =ad =ce Mag weh eeer te dose vice president of nucless rations; the New
... There could be no winnere and there York State Power Authority extensive exper, would be thrw losers: LIILO... b county lence in running a nuclear plant similar to Shore- ... and de consunwr... ham. So in three years we fbel weve turned the Shoreham tesue around. It took a lot of money ne time has come... to give the emerpn. and a great deal of sacriSce on 6 part of our '7 '"Ponae plan an hast test, one controHed. residenta but the county is now in a. . tion to conducted and commanded by Suffolk County take control ofShoreham's future. ... I fee! off!cials and that's & reason why I issued this the time has now come to look at Shoreham in a .executivh order today directing Ime Koppelman new light. and Dick Treder to Imd a county task force 7 ... And rm calling on b federal pwrnment long taland must ha a runonable source of ... to (bel a full participant... We're also electo. cit 7 at reasonable rates if we're hopeful of aaki,ng ee fodnal pnrnmes to continue ex-sustaimag a healthy economic growth. ' A safe plonng all scientific data surrounding the issue Shoreham plant, operated under a realist:c, well of nuclear plant safety as it impecu on public i tested emergency plan,can play a moor role.. g Y-as a resource of such power. God forbid we have brownouu - spoiled food, downtime in industrial Governor Cuomo nas supported us right plants, the pose,bility that emergency aersices down the line because he respected the auton. would be curtailed, omy cf local government to govern its own af. faire. Ocvernor Cuomo could have ovemiled nere han been many changes since 1982.. - the county on this matter of an emergency Number one, energy forecasts han chaned. p'an on Shoreham, but he didn't. He dida t be-There has been a tremendous increase... in the cause he rupecud local autonomy... Now I uk his help to get us beyond Shoreham as we use of energy. Number two.. It's becomins enter the struggle for rate and energy subility clear that a 10. mile evacuation sone provides a and Tm also requesting all of our county legis-latore to join with me on this leeue and te ask for their support... =-- - - - ~ ~ - - ' - - - " - '-'-- --
a SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ___________________________________x ( In the Matter of the Application of THE TOWN OF SOUTHAMPTON, THE TOWN i OF EAST HAMPTON, THE TOWN OF SOUTHOLD, and THE TOWN OF RIVERHEAD, AFFIDAVIT Petitioners, -for a Judgment under Article 78 of the Civil Practice Law and Rules Index No. PETER F. COHALAN, County Execu-tive of the County of Suffolk, Respondent.
X STATE OF NEW YORK)
- ss w,,
i COUNTY OF SUFFOLK) STEPHEN B. LATHAM, being duly sworn, deposes and says: 1. I am a member of the firm of Twomey, La tham & C Shea, special counsel to petiticners in this proceeding. I make this affidavit in support of the Order to Show Cause and in support of the temporary restraining order sought by petitioners. 2. There is an urgent need for an expedited ruling a on the merits of this Article 78 proceeding as well as j the issuance of the tempora ry restra ining order. Unless such relief is granted, which will preserve the status quo in numerous pending state and federal proceedings, .[ ?' 4 i )
1 respondent will continue to cause irrevocable damage to the position of the County and the interests of peti-tioners herein. 3. This special proceeding seeks to annul Execu-tive Order 1-1985 (Exhibit I to the Petition) issued by respondent Peter Cohalan on May 30, 1985. By that Executive Order, and actions implementing it, respondent is actively and systematically dismantling the County's emergency planning policy and legislation as set forth in exhibits 2, 3 and 4. By Executive Order 1-1985, respondent has directed the Commissioner of Police and the Commissioner of the Suffolk County Planning Depart - ment, among others, to use whatever resources of Suffolk County are necessary to test and exercise an emergency C plan prepared by the Long Island Lighting Comp,any ("LILCO") and to assume the functions of command and control concerning the implementation of the police powers of the County of Suffolk with regard to that plan. (See Exhibit 1). 4. Exhibit 4 to the Petition clearly establishes that the actions which respondent has and is undertaking pursuant to Executive Order 1-1985 are in violation of the lawfully adopted legislation of Suffolk County. 5. As is evident from Exhibit 6 to the Petition, this alleged " change in position" of the government of Suffolk County has been disseminated throughout federal agencies in an effort to seek the licensing and opera-tion of the Shoreham Nuclear Plant (see Exhibit 6). Respondent's directive, issued by executive fiat, is in direct contravention of the County's lawfully enacted legislation set forth in Exhibits 2, 3 and 4 and in violation of the Suffolk County Charter, Article 2-B of the Executive Law, S153 of the County Law, and Article IX, S2 of the. Constitution of the State of New York. 6. Petitioners herein are seeking a temporary restraining order enjoining the respondent, his contrac-tors, agents, etc. from taking any action which directly or indirectly supports or executes the policies and c actions set forth in Executive Order 1-1985. Without such immediate relief, respondent Cohalan and his agents, etc. will continue to cause irreparable damage to the position of the County of Suffolk on emergency planning, causing irreparable injury to petitioners and their residents. (See attached Affidavit of Martin Lang). 7. Agents of respondent Cohalan appeared before the Nuclear Regulatory Commission on Tuesday afternoon, June 4, 1985, advocating Commission action in further-ance of the actions and policies set forth in Executive Order 1-1985. The Nuclear Regulatory Commission has scheduled a decision on the issuance of a low power license for Tuesday, June 11, which, if issued, will permit LILCO to increase the power levels at Shoreham to 5% within hours or days thereafter. 8. Should this occur, the contamination of the Shoreham plant will require in excess of $100 million of decommissioning costs which will have to be borne, in i part, by petitioners and the residents of their Towns. l Unless the legislative policy and findings set forth in Exhibits 2, 3 and 4 are reversed, as respondent seeks to l do by the issuance and implementation of his Executive Order, petitioners believe that no low power or full C power license for Shoreham can be issued. 9. For the foregoing reasons, the petitioners respectfully urge the Court to issue the Order to Show Cause as supported by the Petition submitted herein. .,-. k% STEPH{y B. LATHAM Sworn to before me this I day of u 1985 Y - N ZL 0 Asy;/ %.-' ) LY GTON NOTARY PU8 tlc State of New Yc'tt' i No. 4736164. SulloIk Co Term Expres Marct: 30, Iduntf t L
e 1 g' - SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SilFFOLK i
X l
In the Matter of the Application of THE TOWN OF SOUTHAMPTON, THE TOWN OF EAST HAMPTON, THE TOWN OF SOUTHOLD, and THE TOWN OF RIVERHEAD, Petitioners, AFFIDAVIT for a Judgment under Article 78 of the Civil Practice Law and Rules Index No. 65-1052o PETER P. COHALAN, County Execu-tive of the County of Suffolk, Respondent.
X STATE OF NEW YORK)
- ss l
COUNTY OF SUFFOLK) MARTIN LANG, being duly sworn, deposes and says: 1. I am the duly elected Supervisor of the Town of f, Southampton. I make this affidavit in support of the i i f petition which seeks to annul Executive Order 1-1985 j issued by respondent Peter F. Cohalan on May 30, 1985. i This affidavit is also made in support of the Order to ( Show Cause which petitioners herein seek. fj; 2. The Town of Southampton is a municipal .I corporation organized under the laws of the State of New York. The Town of Southampton has been an active 1 participant in proceedings before the Nuclear Regulatory 1 Comnission and in litigation in Supreme Court, Suffolk 4 4 s .b
County, challenging the feasibility of developing an adequate emergency plan for the residents of Suffolk County. 1The Town ' has focused particularly on the feasibility of evacuating residents from-the Town of Southampton and the rest of eastern Long Island. 3. Petitioner Town of Southampton consists of approximately 123 square miles on what is known as the " South Fork" of Long Island which, at its narrowest point, is about 3/4 of a mile in width. The Town contains a very limited road network and transportation problems during even limited emergencies or during the influx or exodus of our substantial summer population, are severe. With approximately 45,000 people, Southampton has the largest year-round population among L ~ petitioners. During the summer months, however, the population of Southampton approaches or exceeds 100,000 people. An additional number of " transients" who visit the Town increase our daily population by nany thousands more. These conditions and problems exist to varying degrees within the Town of each petitioner herein. 4. Petitioner Southampton is first and funda-mentally concerned with the safety and well-being of its a w residents. In the event a general emergency were to occur at Shoreham and an evacuation were to be ordered, we believe that an uncontrolled evacuation of a major portion of Southampton's residents would occur and that our police, fire and other officials and emergency services would be unable to control such an emergency. On this basis, alone, we have determined that the operation of the Shoreham Nuclear Power Plant poses a serious threat to the health and safety of our residents and that it should not operate. S. The Town-of Southampton has adopted and strongly supported the emergency planning policy for Suffolk County as set forth in Resolutions 262-1982, 456-1982 and 111-1983 (attached to the Petition as C Exhibits 2, 3 and 4 respectively). As the responsible ~ government primari.ly involved with developing emergency plans for Suffolk County residents, we support the County Legislature's determination set forth in the above resolution as signed by County Executive Peter Cohalan, which have concluded that no safe evacuation or emergency plan for Suffolk County can be developed or implemented. 6. In the proper exercise of its legislative 3
t l judgment, Suf folk County determined that emergency - planning would have to take place throughout a major portion of the Town of Southampton and in many other areas of the Towns represented by petitioners. The impossibility of implementing such a plan was among the o reasons leading to the deternination that no emergency plan for Shoreham would be adopted. 7. That position accordingly represents. the lawful exercise of the police power and police power determinations made by the Suffolk County government for the benefit of the Town of Southampton and all Suffolk County residents. Accordingly, it is of paramount importance that the emergency planning policy and determinations contained in Exhibits 2, 3 and 4 be upheld. 8 Executive Order 1-1985 issued by respondent Cohalan seeks to annul by executive fiat the legislative determinations and emergency planning policy of the County government. In particular, Rxecutive Order 1-1985 sets in motion a series of actions and procedures by various departments and of ficials of the suf folk County government which seeks to validate an emergency plan developed by the Long Island Lighting Company o = o , s ausw, 4 ("LILCO"). Not only is respondent Cohalan seeking to une County resources to support a utility plan to annul police power determinations properly made by th e County government as a whole, which have been adopted by Southampton and other petitioners but plan which respondent the emergency Cohalan is seeking to implement excludes virtually all of the area within p ti e tioners' Towns from the planning process, ^ of petitioners' to the severe detriment residents. 9 In the event Executive Order 1-1985 is not declared null and void by this Court as an unlawful act and in excess of the authority granted to respondent under the County Charter and laws of the State of New
- York, the health and safety of Southampton a d 8
n other East End residents as protected by Exhibits 2, 3 and 4 will be effectively abandoned. 10 Upon information and belief, respondent Cohalan and the Long Island Lighting C l ompany are actively seeking on a day-by-day basis to portr i ay Executive order 1-1985 as the new Count y policy on emergency planning. Those nisrepresentations are being used to secure the expedited issuance of a low power license for Shoreham, which will permit the plant to -S-i
a. 4 o increase its power generation to five percent. Upon information and belief, such operation of the plant will incur tens of millions of dollars in decommissioning costs in the event a full power license is not issued. Unless Executive Order 1-1985 is immediately declared null and void, it will be used to undermine the position of petitioner Town of Southampton in pending Supreme Court litigation before the Hon. tiilliam Geiler and in other administrative and judicial forums before which the Shoreham case is presently pending. 11. For the foregoing reasons, I respectfully urge this Court to sign the Order to Show Cause in support of the petition. I further urge that this Court annul Executive Order 1-1985 as in violation of the County t Resolutions set forth as Petition Exhibits 2, 3 and 4; the County Charter, the County Law, Article 2-R of the Executive Law and the State Constitution. /f, fnk MARTIN LANG Swor to before me this day of June 1985 y smaauma i ~ } l a
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