ML20133E854

Forwards State of Ny Supreme Court Order to Show Cause Why Nassau County,Ny County Executive Should Not Cease & Desist from Offering Use of Facilities or Personnel for Facility Evacuation Plan.Related Correspondence

ML20133E854
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/01/1985
From:	Palomino F NEW YORK, STATE OF
To:	NRC
References
CON-#485-684 OL, NUDOCS 8510100042
Download: ML20133E854 (15)

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,b e FABIAN PALOMINO W' *--

Special Counsel to the Governor F ' ~.T rreggR PHOD. L UTIL FAC........3 g g V

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October 1, 1985

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Dear Honorable Sirs:

s jd Enclosed is a copy of an Order to Show'Cause issued out of;the Supreme Court of the State of New York, Nassau

. County,'in'a proceeding commenced on.the lith day of

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September, 1985, by.a resident of that County ordering the

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-County Executive of Nassau County to show cause why he should-

.U not cease and. desist from:

(a) offering the use of Nassau County facilities or personnel in connection with the

.Shoreham nuclear plant evacuation plan; and, (b) attempting-

~to prepare, adopt or implement a local emergency disaster

preparedness plan, without in each case the prior consent of the Nassau County Board of Supervisors....

-The legal' basis for the proceeding against the Nassau County Executive is that.his actions in unilaterally

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-offering the use:of Nassau County facilities (among others, I

the. Nassau ~ Veterans ' Memorial Coliseum) for use in connection

-with the Shoreham nuclear facility emergency evacuation' plan, f

_and in offering the services of Nassau County personnel to

-aid in the. implementation of that plan, are an illegal 5

l violation of the Nassau County Charter, which requires the prior consent of the Nassau County Board of Supervisors to y.

take such actions.

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. I am also enclosing a copy of the Affidavit in Support'in'that proceeding.

I Very truly yours',

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//hhfri,h S ecial Counsel to the Governor L

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Chairman Nunzio J. Palladino i

Commissioner James K. Asselstine l-Commissioner' Frederick M. Bernthal j

commissioner Lando C. Zech, Jr.

Judge James L. Kelley h,

Judge Glen O. Bright

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Chairman Alan S. Rosenthal

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Honorable Gary J. Edles l

Honorable Howard A. Miller Enclosures 1

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September 12, 1985 1

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Enclosed for your information is the Order to

'j Show Cause issued yesterday in New York State Supreme 2

Court, Nassau County, and related documents in the action entitled In the Matter of John W. Matthews

v. Francis T.

Purcell.

Very truly yours, gi 1/

Patrick J. Foye s

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Enclosures l4 L

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I tg At a Special Term, Part IEI of the Supreme Court, held in j

and for the County of Nassau at the County Courthouse, Mineola, f.I, New York on the L( hs day of September, 1985.

kice Present:

Hon.

-___________________x I !

In the Matter of the Application of JOHN W.

MATTH EWS,

'6' Petitioner, i

for a Judgment under Article 78 of ORDER TO SHOW CADSE the Civil Practice Law and Rules y

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- against -

Index No.: 16697/85 1'

FRANCIS T. PURCELL, County Executive i

6) of the County of Nassau, Respondent.

____________________x On reading and filing the petition of JOHN W.

MATTHENSc

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verified the lith day of September,1985, othe Affidavits of John bl W. Matthews and the Affirmation of Patrick J. Foye, Esq., pray-ing for a judgment pursuant to Article 78 of the Civil Practice 1,/

'r Law and Rules requiring PRANCIS T. PURCELL, County Executive of i

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Nassau County, to forthwith cease and desist from (a ) offering j ]

the use of Nassau County facilities or personnel in connection i 1 j ;

I with the Shoreham nuclear plant evacuation plan and (b ) attempt ;

b ing to prepare, adopt or implement a loca'l emergency disaster i

i preparedness plan, without in each case the required prior con-s J

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h t of the Nassau County Board of Supervisors relating to or in b

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any manner affecting the matters set forth in said petition of

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John W..Matthews, petitioner herein, duly verified the lith day a

,1 of September,1985, f rom which it appears that the petitioner is a taxpayer of the City of Long Beach, County of Nassau and State of New York, and that respondent, Francis T. Purcell, County 4

Executive of Nassau County, has refused to cease and desist f rom i

n such conduct.

Now, on motion of Patrick J. Foye, Esq. & Bonnie Ra-

- bin, Esq., attorneys for petitioner, it is 1 h.,

ORDERED, that the respondent, Francis T.

Purcell, 1

.l County Executive of Nassau County, show cause at a Special Term, Part T-of the Supreme Court, to be held at the County f

. Courthouse, Mineola, New York, on the. IIhh day. of ' September, y

l' 1985, at 9:30 A.M. or as soon thereaf ter as counsel can be-

,8 t lj heard, why a judgment should not be entered, requiring the re-4.'

Francis T. Purcell, County Execu'tive of Nassau County,

spondent,

[ 0 forthwith to cease and desist from (a) offering the use of Nas-l sau County facilities or personnel in connection with the Shore-ham nuclear plant evacuation _ plan and (b) attempting to prepare,

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. adopt or implement a local emergency disaster preparedness plan, I Ub without inL each case the prior consent of the Nassau County

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Board of Supervisors, and for such other and further relief as

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to this Court may seem just and proper, together with costs and l

+ j disbursements, and it is further ORDERED, that copies of this Order together with a ll

]1 l' copy of the verified petition upon which the same is granted be served personally on the respondent, Francis T. Purcell, County 2

b days prior to the return date Executive of Nassau County, l

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of this Order.

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Enter, I-Q%

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e SEP 11 1985 l

HAROLD W. McC0ftriEtt f

CLERK i

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SUPREME COURT OF THE STATE OF NEW YORK I

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COUNTY OF NASSAU l

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__________________x i

1 In the Matter of the Application of i

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JOHN W. MATTHEWS, l.j 1

Petitioner, AFFIDAVIT I

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Index No.: 16697/85

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for a Judgment under Article 78 of I

the Civil Practice Law and Rules

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-against-l FRANCIS T. PURCELL, County Executive of the County of Nassau, t

Respondent.

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STATE 'O'F NEW YORK

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y COUNTY OF NASSAU

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JOHN W. MATTHEWS, being duly sworn, deposes and says:

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1.

I am a resident and taxpayer of the City of Long

l Beach, Nassau County and the petitioner in this action.

al 2.

I submit this affidavit in support of the relief D

l, requested in the within Verified Petition brought on by Order to Show cause pursuant to CPLR SS 7803 and 6301.

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I am intimately familiar with the f acts and pro-4

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j ceedings described in the Verified Petition.

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I have brought this proceeding in order to prevent j

I Respondent f rom (a) destroying our Nassau County Charter form of i

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,j government guaranteed to us by New York State Constitution, j

Article 9 S 1. and Muncipal Home Rule Law S 10 and (b) viola ting the New York Executive Law.

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As detailed in the Verified Petition, Respondent's l l actions violate the Nassau County Charter's provisions governing ;

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li ~l the distribution of powers between the County Legislature and I

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County Executive, the establishment of County policy and expen-Ll diture of funds.

6.

Respondent has unilaterally offered the use of

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Nassau County facilities in connection with the Shoreham nuclear 3

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plant without the required prior consent of the Nassau County

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' Board of Supervisors.

In furtherance of his illegal actions, on J

d October 1,1984, Respondent wrote a letter to the General Manag-i in er of the Nassau Veterans Memorial Coliseum (the " Coliseum")

l which Respondent stated that (i) he was aware of and approved of 1

the use of the Coliseum as a reception center 'for members of the i

j public requiring assistance after a nuclear accident at Shore-i

?! ham, (ii) he approved (A) the identification of the Coliseum in t

{!U information disseminated to the public as a Shoreham evacuation i

Il j reception center and (B) the use of the Coliseum for performing L'

(iii) he would radiological monitoring and decontamination, t

i in cooperate with the Long Island Lighting company ("LILCO")

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4' evacuation planning, training and exercises and (iv) he assured j '

l 5-the availability of the Nassau County Police Department to pro-j5 vide security and f acilitate traf fic flow and parking.

A copy j,

of Respondent's October 1, 1984 letter is part of the NRC Tran-l

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script and is attached hereto as Exhibit 1.

7.

Based on Respondent's offer of the Coliseum, LILCO 4

entered into a binding, definitive agreement with Hyatt Manage-ment Corporation of New York, Inc. granting LILCO access to the l

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Coliseum and all surrounding property as a radiation center for i

the general public in planning for and responding to a nuclear accident at Shoreham.

A copy of such agreement is part of the ff>

NRC Transcript and is attached hereto as Exhibit 2.

i 8.

LILCO has also entered into an agreement with the American Red Cross in which the Red Cross has agresd to assist in the use of the Coliseum as an evacuation center for Shoreham.

I iI A copy of the agreement between LILCO and the American Red Cross is part of the NRC Transcript and is attached hereto as Exhibit q

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9.

On December 31, 3984, Respondent wrote to William i

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! J. Catacosinos, Chairman and Chief Executive Officer of LILCO, I

!l 1l ll that "Nassau County Government will cooperate to the f ullest in I

available making all public facilities, incluaing the

oliseum, h

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!! at any time."

A copy of Respondent's letter to LILCO is part of I

the NRC Transcript and is attached hereto as Exhibit 4.

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Earlier this year, -Respondent was publicly quoted J

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in Newsday as saying:

"If LILCO asks for it, I would volunteer

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'the [Nassau-Community] college or any other. f acility we have --

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~ including my own office.*

A copy of the Newsday article, Janu-

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ary 22,1985 (p. 21) is attached hereto as Exhibit 5.

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Respondent is aware that without the ability to g

p, demonstrate that LILCO has access to Nassau County facilities,

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Shoreham's radiological emergency response plan will be inade-quate and Shoreham will not receive a permanent operating li-r f'

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ce'nse from the Nuclear Regulatory Commission.

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-E The Nassau County Charter granfs to the_ Board of i

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. f,lh Supervisors the power to control the use of County-owned and

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leased facilities and specifically grants the Board of Supervi-'.

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sors power with respect to the operation and use of the Colise-

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Instead', Respondent has attempted in an unprece-

.l dented manner to circumvent: the governmental processes pre-1 1

scribed by.the Charter by unilaterally offe' ring the use.of Coun-1 l

ty facilities.

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I 14 Respondent's conduct irreparably injures the j

. gL' County in the most profou'nd ways imaginable.

First, by destroy-q q ing the fabric of Nassau County's government through usurpation l

.of the. legislature's powers.

Second, by carrying out his execu-tive usurpation of legislative functions in the Shoreham case, l h-g 4

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a whose outcome, one way or another will vitally affect the imme-diate and long term health, safety and well-being of the people l

1 of Nassau County, and indeed, Long Island.

15.

One need not be for or against Shoreham to expe-rience revulsion at Respondent's executive lawlessness.

16.

Respondent has also violated Article 2-B of the New York Executive Law by usurping the power granted by the New York State Legislature to the County Board of Supervisors to adopt, prepare and implement a local disaster preparedness plan.

17.

In taking his illegal actions, Respondent has misrepresented the County's policy on Shoreham.

Respondent has

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already significantly damaged Nassau County and its citizens by illegally aiding LILCO's efforts to obtain an operating license In its despara tion to obtain an operating license for Shoreham.

for Shoreham, LILCO lost no time in capitalizing on Respondent's unilateral action.

LILCO has continually represented to the

-1 Atomic Safety and Licensing Board of the NRC that Nassau County j

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has agreed to provide County facilities and personnel for use in l

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. the Shoreham evacuation plan.

Based on LILCO's representations, j l

the NRC has proceeded and is presently proceeding on the assump-tion that the authorized, official policy of Nassau County is to !

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p support Shoreham and to provide County facilities to be used in f

U the evacuation plan.

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The Board and the NRC are deliberating under the

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incorrect premise that Nassau County's official position is one 1

of support f or Shoreham and that Respondent's offer of County facilities and personnel was legal and proper.

Indeed, as re-I cently as August 26, 1985, the Board concluded:

1 "The evidence shows that the Nassau County Executive I;

intends to assist in the event of an emergency at 1

,1 Shoreham.

The County Executive is aware of and ap-proves of the use of the Coliseum as a reception cen-ter in a Shoreham emergency and pledges that the Nas-sau County Police Department will be available to i

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assist with security and to facilitate traffic flow i

and parking at the Coliseum.

. The Board finds l

If these agreements satisfactory to provide reasonable assurance that LILCO wild have access to the Coliseum in the event of an emergency at Shoreham."

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i (Atomic Safety and Licensing Board, Concluding Partial Initial

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Decision on Emergency Planning, August 26,19 85 at 8-9).

A copy i I

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of the Concluding Partial Initial Decision is attached hereto as hD i!

Exhibit 6.

19.

Whatever justification, if any, Respondent may

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claim for his unilateral action, and whether one supports or opposes the operation of Shoreham, there is no justification, S

legal or moral, for the County Executive to arrogate to himself 4

4 h without the approval of the Board of Supervisors, the governing II body of Nassau County pursuant to the Nassau County Charter l

4 (Charter S 102), unilateral policy-making with regard to Shore-

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ham, the use of county f acilities and personnel in the Shoreham

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I-evacuation plan and the adoption, preparation and implementation !

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of a local emergency disaster preparedness plan.

20.

To allow him now to volunteer the use of Nassau i

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County properties and facilities in the Shoreham evacuation plan i

1 is to create a tragic precedent paving the way for future execu-l tive abuse of power in other matters vitally affecting the in-terests of the people of Nassau County.

Two members of the Nassau County Board of Super-21.

j visors have expressed their opposition to Respondent's actions j

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and their belief that Respondent's actions violated the Nassau l

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County Charter and breached the separation of powers between the Y-i

.Nassau County Chief Executive and the Board of. Supervisors.

1 Copics of the letters f rom Vincent A. Suozzi and Hannah Komanoff f

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I are attached hereto as Exhibit 7.

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22.

On September 4, 1985, on behalf of the citizens, j

taxpayers and LILCO ratepayers of Nassau County, I delivered a

<1 letter to Respondent demanding that he promptly publicly an-

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nounce that his offer of Nassau County facilities was unautho-(

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rized and illegal based on his violation of the New York State

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li Constitution, New York State law and the Nassau County Charter.

A copy of my letter to Respondent is attached hereto as Exhibit 8.

j 23.

Respondent did not respond to Petitioner's let-f ter.

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In short, unless the relief requested is granted i

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by this Court, the Respondent has destroyed the meaning and integrity of the Nassau County Charter, has violated New York s'

State law and has arrogantly trampled upon the powers of the ki Nassau County Board of Supervisors and the rights of the citi-

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zens of Nassau County.

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g; JOHN W#1 ITHEWS

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Sworn to before me this i

lith day of September, 1985.

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Notary Pubfic l

PATRICK !. FOYE

'f Notary Put,lic. rtste of ?*J # YCM Mo. 475,J25 Cecificate facj h Oucca, C,.T..J, i.

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STATE OF NEW YORK

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)SS.:

}l COUNTY OF NASSAU

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i j JOHN W.; MATTHEWS, being duly sworn, deposes and says I

that deponent is the Petitioner in the within action; that depo-l 2

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nent has read the foregoing Verified Pctition and Affidavit and I i I I knows the contents thereof; that the same is true to deponent's

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.j own. knowledge except as to the matters therein stated to be jj alleged on information and belief, and that as to those matters t

deponent believes them to be true.

JOHN TTHENS" Sworn to before me this lith day of September, 1985.

Notary Publi6 V

PATm cK L F mac; guk ^ ; YcM um fl cMd[j,jy[3 c.

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