ML20133E994
| ML20133E994 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/04/1985 |
| From: | Latham S SOUTHAMPTON, NY, TWOMEY, LATHAM & SHEA |
| To: | Edles G, Rosenthal A, Wilber H NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#485-687 OL-3, NUDOCS 8510100087 | |
| Download: ML20133E994 (10) | |
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Two.stIW LAT11 A.\\1 & Silica ATTORNEYS AT LAW 33 WEST SECOND STREET 03[K[I[,Q Dis P O. Box 398 THOM AS A TWOMEY, JR.
'85 0CT,7s e :05~ 57aser 5"*" " *^"
JOHN F. SHE A. lla.
1516) 727 2180 g
gg CHRISTOPHER O MELLEY.
Q 7 ';-[ * ' r j
AMYS. TURNER f,t* [ 4, g-;e ]
J LAWRENCE M STORM'
- M AUREEN T. LICCIONE O tober~4, 1985 l
ALso AouiTTro m counccTicuT AND FLORIDA Alan S.-Rosenthal, Esq., Chairman
-Gary J.
Edles, Esq.
Dr. Howard A.
Wilber l
Atomic Safety and Licensing Appeal Roard U.S.
Nuclear Regulatory Commission Fif th Floor- (North Tower)
East-West Highway Bethesda, MD 20814
[
Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1)
( Docke t No.
50-322-OL-3)
Gentlemen:
.This letter responds to the Board's request for a report on the status of the New York State Court litigation as.well as the October 2 filing that we received yeseterday from Hunton and Williams on behalf of LILCo.
In our view, that filing does not accurately set forth the disposition or-status of pending Sta'te court matters and thus we ask the Board to consider the information set forth below in its de1therations.
LILCO indicates at.page 2 of its October 2 letter that.
"all parties" sought to clarify the Court of Appeals' July 9 decision.. That is not the case since only appellants LILCO
'and Cohalan filed motions for r.e-argument and/or
' cla ri f ica tion.
As the board wi'l!1 recall, the Court of Appeals upheld in its entirety the Order of Judge Doyle, issued on June 10 (a copy of which is enclosed-for your convenience).
By Order dated September 12, 1985 (a copy of which is also enclosed), the Court of Appeals denied Appellants' motions.
It should be pointed'out that in its motion for cl&rification, LILCO asked the Court of Appeals to annull paragraphs B, C, and D of Judge Doyle's June 10 order.
In
- support of that relief, LILCO argued that the. Court's opinion should be construed to mean that. County Executive Cohalan 8510100087 851004
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PDR ADOCK 05000322 G
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could not be enjoined f rom reviewing or testing LILCO's plan and that the County Legislature's Resolutions referenced in the Doyle Order were not binding on the County Executive.
However, as those Resolutions and Judge Doyle's Order clearly indicate, Mr. Cohala n a nd his agents are permanantly enjoined from reviewing or. testing LILCO's plan and the Resolutions are unequivocally binding on him.
Thus, it is our view that the arguments advanced by LILCO as set forth above have been rejected by the Court and the permanant injuction against any review or test of LILCO's of f site emergency plan is the law of the State of New York.
The Court of Appeals' refusal to annul portions of Judge Doyle's Order or to declare that the County Legislature's Resolutions were not binding on the County Executive are entirely consistent with the Court of Appeals' determination that those Resolutions, which declined to adopt an off-site emergency plan for Shoreham, was a lawful exercise of legislative power under Article-2-B of the State of New York.
With regard to the litigation before Judge Harry ' Richard Brown of the Supreme Court, Riverhead, which sought to enforce the Doyle Order by annulling the firing of the law firm of Kirkpatrick and Lockhart, LILCO has indicated at page 3 of its October 2 filing that no appeal has been noticed from that decision.
That is not correct since the Appellate Divisi,on's decision granted the petitioner legislators and towns leave to appeal to the Court of Appeals. Consistant with the Court rules, a pre-argument statement has been filed on behalf of petitioners with the Court of Appeals.
We spoke yesterday with Kathy McClesky of Hunton and Williams and apparently our pre-argument statement was not received by her.
Additional copies have been sent out to LILCO today.At the present time, briefs must be submitted to the Court of Appeals on or before November 4, 1985.
As a final observation, we should note that LILCO has taken the position that the partial declaratory judgement issued by Judge Geiler in the Cuomo v. LILCO litigation is not ripe for appeal, notwithstanding the fact that LILCO has filed a notice of appeal in order to avoid a dispute rega rding timliness.
We do_not want our silence on that matter to be construed as agreehent with LILCO's legal analysis, since,_in our view, th'e appeal can be properly pursued at this time.
Yodrs truly,/
s
~
M Steve Latham Special Counsel to the Town of Southampton SL/ led cc:
Service List Enclosures
CERTIFICATE OF SERVICE
-In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclea r Power Station, unit 1)
[
Docket-No.
50-322-OL-3 I
I hereby certify that copies of a letter to the Appeal Board from Steven B.
Latham, dated October 4, 1985, were served this date upon the following by first-class mail.
j; Morton B.
Margulies, Secretary of the Commission
~ Chairman U.S.
NuclearJRegulatory
-. Atomic Safety and Licensing Commission Board Washington, D.C.
20555-U.S.
Nuclear Regulatory Commission East-West Tower, Rm. 402A Atomic Safety and Licensing 4350 East-West Hwy.
Appeal Board Panel Bethesda, MD 20814 U.S.
Nuclear regulatory Commission 1
Washington,-D.C.
20555 Dr. Jerry R.
Kline Atomic Safety and Licensing
. Board Atomic Safety and Licensing U.S.
Nuclear Regulatory Board Panel Commission U.S.
Nuclear Regulatory East-West Tower, Rm. 427 Commission 4350 East-West Hwy.
Washington, D.C.
20555 Bethesda, MD-20814 Bernard M.
Bordeni-ck, Esq.
Mr. Frederick J.
Shon Oreste-Russ Pirfo, Esq.
Atomic Safety and Licensing Edwin J.
Reis, Esq.
Board U.S.
Nuclear Regulatory U.S. Nuclear Regulatory'
~ Commission Commission y 7735 Old Georgetown Road East-West Tower, Rm. 430
- (to mailroom) 4350 East-West Hwy.
Bethesda, MD 30814 Bethesda, MD 20814
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e Donna Duer, Esq.
Stewart'M. Glass, Esq.
Attorney Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency U.S.
Nuclear Regulatory 26 Federal Plaza, Rm. 1349 Commission New York, NY 10278 East-West Tower, North Tower 4350 East-West Highway
'Bethesda, MD 20814 Donald P.
Irwin, Esq.
Hunton & Williams 707 East Main Street Fabian G.
Palomino, Esq.
P.O.
Box 1535 Special Counsel to the Richmond, VA 23212 Governor Executive Chamber Room 229 Palph Shapiro, Esq.
State Capitol Cammer & Shapiro, P.C.
Albany, NY 12224 9 East 40th Street New York, NY 10016 Mary Gundrum, Esq.
Assistant Attorney General James Dougherty, Esq.
2 World Trade Center 3045 Porter Street
~
Room 4614 Washington, D.C.
20008 New York, NY 10047 Jonathan D.
Feinberg, Esq.
Spence W.
Perry, Esq.
New York State Department of Acting General Counsel Public Service, Staff Counsel Federal Emergency Management Three Rockef eller Plaza Agency Albany, NY 12223 501 C Street, S.W.
Washington, D.C.
20472 William E.
Cumming, Esq.
Associate General Counsel MHB Technical Associate Federal Emergency Management 1723 Hamiltor. Avenue Agency Suite K
.500 C Street, S.W.
'!oom 840 San Jose, Ca lif orn ia 95125
- R Washington, D.C.
20472
'Mr.
Jay Dunkleberger
,)
New York State Energy Office Ms. Nora Bredes Agency Bailding 2 Executive Coordinator Empire State Plaza Shorehan Oppoinents' Coalition Albany, NY 12223 195 East Main Street Smithtown, NY 11787
Gerald C. Crotty, Esq.
Counsel to the Governor Atomic Safety and Licensing Executive Chambor Appeal Board State Capitol U.S.
Nuclea r Regulatory Albany, NY 12224 Commission Fifth Floor (North Tower)
East-West Towers Alan S.
Rosenthal,_Esq.,
4350 East-West Highway Chairman Bethesda, MD 20814
. Atomic Safety and Licensing Appeal Board U.S.-Nuclear Regulatory
' Herbert Brown, Esq.
Commission Lawrence Coe Lanpher, Esq.
Fifth Floor (North Tower)
Kirkpatrick & Lockhart Ea s t-Wes t Towe rs 1900 M Street, N.W.
4350 East-West Highway Washington, D.C.
20036 Bethesda, MD 20814
'o Gary-J. Edles, Esq.
Atomic Safety and Licensing Appeal Board U.S.
Nuclear Regulatory Commission Fif th Yloor (North Tower))
East-Wes't Highway Bethesda, MD 20814 Martin Bradley Ashare, 'Esq.
Suffolk County. Attorney-H.
Lee Dennison Building Veterans Memorial Highway Hauppauge, NY 11788 1
/ u m _i..-
y Stev(/Latham
- d. October 4, 1985 i-
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$tatt 0" RETD 330M>
Court of 9pptals At a session ofthe Court, heldat Court of Appeals Hallin the City of Albany on ihe......tue.1Lth.................... day o[....
..S.eP.t.e.mb.e.r.....
.... A, D, 1 9 85 (3(U(,
HON. SOL WACHTLER, Chief Judge presiding.
2 Mo. No.
860 In the Matter of the Application of Wayne Prospect, et. al.,
Respondents, For a Judgment &c..
vs.
Peter F.
Cohalan, County Execu-tive of the County of Suffolk Appellant, Long Island Lighting Company, 1 "
Intervenor-Appellant.
And an additional plocerding.
A motion f ar clarification of this Court's opinion in the above causes h.tving heretofore been made upon the part of intervenor Long Island Lighting Company, and a cross-motion for reargument of the above causes having heretofore been made upon the part of Peter F. Cohalan, papers having been submitted on the motion and cross-motion and due deliberation having been thereupon had, it in ORDERED, that the said motion and cross-motion be and the same are each denied with twenty dollars costs and necessary. reproduction disbursements.
cjv.N M.
J (g
Donald M.
Sheraw Clerk of the Court
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.i Cl[ 0 At - a Special Term, Part I,
of
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the Supreme Court of the State of New York, Suftolk County, held.at the Courthouse, Griffing Avenue, Riverhead, New York, on the 10th day of June, 1985.
HON.
ROBERT W.
DOYLE Justice
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,
)
)
-For a Judgment under Article 78 of
)
the Civil Practice Laws ~and Rules,
)
)
-against-
)
)
ORDER PETER,F. COHALAN, County' Executive
-)-
of thd County of Suffolk,
)
Index No.
Respondent.
)
X 85-10520
X In the Matter of the Application of )
WAYNE PROSPECT, et al.,
)
Petitioners,
)
)
For.a Judgment under Artic'.e 78.of
)
the Civil Practice Laws and Rules,
)
)
-against-
)
)
' PETER F.-COHALAN, County Executive
)
)
of the County of Suffolk, Re sponde n't.
)
____________________________..-------X
.\\
Upon reading and filing the Petition of the Town
- b. _
4 ot Southampton, et al.,
sworn to the 5th day at June, 1985, the Petition ot Wayne Prospect, et al.,
sworn to th'e 5th day.of June, 1985, the Respondent's Notice of Moti'on:to Dismiss the Petition and disqualify counsel, and upon all the papers and proceedings herein, it is hereby ORDERED that respondent's Executive Order 1-1985 issued on the 30th day of May,- 1985 is hereby rescinded, annulled and set aside, and it is further ORDERED:
(a) that the respondent, his attorneys, agents, servants, employees and all persons acting in concert with them including but not limited to those of the Suffolk-County Planning Department, Suffolk County Police Department and Suffolk County Attorney are
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enjoined from taking any action whatsoever to enforce, V
implement or carry out the directions, policiespor terms
$I of1 Executive Order 1-1985 issued by Respondent on May 30, 1985 or any directive or instruction relating a-YE(
thereta;rsYnt' k.M,% ha$
et.ldcl6 Y re's r-is s
g-/{p n gy)fFm J r'd Cu'A /
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DValbbk & /sk o
'(b that the responde'nt is enjoined from assigning
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or expending any ' funds.or resourges in contravention of Resolutions 262-1982, 4 5 6-19 8 2 and 111-19 8 3, or E' (/
directing any County personnel to review, test or implement the LILCO plan or any Radiological Emergency
-4 A
Response Plan (RERP), for the Shoreham nuclear plant without firct crac'""in-to the Suffel' County T,a.e Y_i
/cgislatura ^:
._cd S M M and securing a resolution
/!r jdopted by the County Legislature and approved by the b County Executiveg becutdauw w i i. h J.. u g u v e s t v..s c5 pg%
4he-Ogff01 M uuucy Chsrtc. und agglicsbic statutca r
'b loca4-taas-ard rsguiatians7
'd (c) that the respondent and the persons hereinabove dd described are enjoined from modifying the policy and legal position of Sutfolk County in any Shoreham related C; cati h:.2.tc Specia-1 proceedings c actr.blir"ed by thc
'~{e lxN Geenseh m kpatrick and-Lc4'a-t, Esgs._,--aCh e Cocaty h
po4-as set forth in the resolutions 262-1982, y h 456-1982 and 111-1983, and from communicating to the b Nu lear Regulatory Commission (NRC), the Public Service gS 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 c)s described in said resolutions dd that such County policy
- h - v"-setus vp;ccud to t'w hasbeenchanged[4rc.T A
~.q..,.
vs..
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(d) that the respondent is enjoined from ponehIy:f d
withdrawing the County's opposition to the issuance by fc
s 4-
- e L
the NRC to LILCO of a low power operating license for Shoreham.
R:
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GRANTED
- JU:: 13 IN5 h'i'e'ti A. X; es !
C:rk " m -.t cr. q COUNTY CLERK'S OFFICE STATE OF NEW YORK SS.:
COUNTY OF SUFF'iK J
I,JULIETTE A. KINSELLA, Clerk of the County of Suffolk and the Court of Record therof, ere certify that I have compared the anne with the original Z&........... FILED in my office
.. 4..N./ ;FMC..... and, that the same is a true f
copfthereof, and of the whole of such original.
- ~ In Testimony Whereof,I have hereuntoaset yhandand,a ixed the seal of said County and Cogt this/
e,, y f f f e
ly." :h GG.?!. ll.... j.i. C1erk.
Form No 2%
12 c2 I e4
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