ML20136J431
| ML20136J431 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/18/1985 |
| From: | Brownlee D KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#485-272 ALAB-818, OL-3, NUDOCS 8511250360 | |
| Download: ML20136J431 (51) | |
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' DOHETCP USkRC I l, UNITED STATES OF Ah.RT.CA 85 NOV 21 P4:20 NUCLEAR REGULATORY COMMISSION 0FFC y %t A Before the Commission 00Cri! Dv!u .
In'the Matter of ) e,
) Docket No. 50-322-OL-3 ,,
LONG ISLAND LIGHTING COMPANY ) (Emergency Planning
) Proceeding)
(Shoreham Nuclear Power Station) ) INTERVENORS' ANSWER OPPOSING LILCO'S PETITION FOR REVIEW OF ALAB-818 On October 18, 1985, the Atomic Safety and Licensing Appeal Board (" Appeal Board") filed its Decision, ALAB-818. That Decision-holds that LILCO has no legal authority to
' implement its offsite emergency plan (" Transition Plan") and, therefore, has not satisfied this Commission's emergency
, planning rules. 10 C.F.R. SS50.33(g) and 50.47. LILCO asks this Commission to review and reverse ALAB-818, asserting that the Board's Decision is " incorrect on important grounds of law and policy." Petition, p. 1. Intervenors, Suffolk County, New York' State and the Town of Southampton, file this Answer in opposition to LILCO's, Petition.1/
1/ Consistent with prior Commission practice of permitting additional pages when Intervenors file a single consolidated pleading,.the County, State and Town of Southampton have prepared a single opposition to LILCO's Petition for Review of ALAB-818 and thus are permitted to file a response in excess of 10 pages. Further, the same reasons which are relied upon by LILCO to file a Petition in excess of 10 pages would' support a
-motion for bage limit extension by Intervenors if any were needed.
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Although the Shoreham emergency planning dispute involves important issues, Commission review of ALAB-818 is neither warranted nor necessary. First,-this Commission addressed the substance of.LILCO's legal position when it adopted its final emergency planning rule. The Commission rejected the preemption position that LILCO now argues. In' view of the Commission's prior actions and the necessity for a final judicial resolution of a legal issue such as preemption, any.further review of LILCO's preemption claim should be by the Court of Appeals, and not by the NRC. Second, the Commission has recognized that, under existing federal law, a utility has no authority to assume governmental powers in implementing an offsite emergency plan. Moreover, the Commission has encouraged Congress to address the utility authority issue, but Congress has chosen not to act. In view of this Commission's representations to Congress, any further action on the utility authority issue should come from Congress. Finally, the Commission's regulations demonstrate that~ adequate emergency planning requires a-pre-planned, agreed-upon, coordinated response to a nuclear accident. In , the light of TMI and in view of the NRC's own rules, the ! Commission cannot now accept the argument that LILCO can satisfy NRC' regulations with an illegal emergency plan and l unspecified governmental actions. I l- , - ,. . - -__
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8 1 Under these circumstances, the questions of law and of policy that ALAB-818 presents should be answered by a court of law or by Congress. Indeed, the Commission's review of ALAB-818 at this juncture will only delay a final, judicial resolution of this dispute. LILCO's Petition for Review should, therefore, be denied. I. FACTUAL BACKGROUND This Commission has " concluded that adequate emergency preparedness is an essential aspect in the protection of the public health and safety." 45 Fed. Ryg. 55,404 (Aug. 19, 1980). The County and the State have determined that they will not adopt an emergency plan'for Shoreham.2/ Given the Commission's emergency planning rule and lacking any site-specific state or local plan for Shoreham, LILCO has submitted an offsite emergency plan that, in all crucial respects, would be implemented by LILCO's employees. Following 2/ In March, 1984, LILCO challenged the County's resolutions stating its decision not to adopt or implement an emergency plan for Shoreham in federal court. The District Court held that the County resolutions are valid and rational exercises of the County's governmental powers and are not preempted by federal law. See Citizens for an Orderly Energy Policy et al.
- v. Suffolk County, 604 F. Supp. 1084 (E.D.N.Y. 1985). That deci,sion is binding upon this Commission.
In addition, the New York Court of Appeals has squarely held that local governments have no obligation under New York law to adopt emergency response plans: "[T]he preparation of county plans is optional, not mandatory." In the Matter of Prospect v. Cohalan, N.Y. Court of Appeals, slip op. July 9, 1985, p. 2.
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7.- . - - . t 't g r ( this Commission's decision that it was obligated to review a 3 l utility-sponsored plan and to determine whether it met NRC i standards (CLI-83-13, 17 NRC 741 (1983)), Intervenors challenged LILCO's legal authority to implement its plan in
. these proceedings and in state court.3/ LILCO's defense of its purported authority was unsuccessful on both fronts.
First, the New York State Supreme Court held that LILCO's actions in implementing its Transition Plan are
" inherently governmental in nature" and are, therefore, prohibited under the New York State Constitution, the New York
-Municipal Home Rule Law, its Executive Law, Vehicle and Traffic Law, Penal Law, Public^ Health Law, Transportation Corporations Law and Agriculture and Markets Law. In addition, the Court held that LILCO, as a creature of New York law, has only those powers. conferred upon it by the state. The Court found that LILCO's corporate powers do not authorize it to carry out the Transition Plan. Thus, the Court squarely rejected LILCO's contentions (i) that it could perform the functions embraced by its Transition Plan without violating state law and (ii) that
-it had corporate authority to carry out the Transition Plan.
See Cuomo v. LILCO, Consol. Index No. 84-4'615 (N.Y. Sup. Ct., slip,op.,.Feb. 20,-1985) and Partial Declaratory Judgment 3/ The ASLB itself urged the parties to resolve the legal authority issue in state court: see, e.g., "The Board believes these legal contentions are properly matters to be disposed of
;by the New. York State courts." Tr., 3675.
- -p i entered-March 28, 1985. (Exhibit A). LILCO has repeatedly acknowledged that it is boun'd by the Cuomo v. LILCO holding for the' purposes of this proceeding. See ALAB-818, p. 8.
In addition, Intervenors filed Contentions 1-10 (the
" legal authority contentions") that assert that LILCO has no
- j. legal authority to perform the-basic elements of the Transition
- Plan. Absent such legal authority, LILCO (i) cannot implement its emergency plan, (ii) cannot satisfy the Commission's i
requirement that it prove that_ adequate protective measures "can and will be taken" and (iii) cannot obtain an operating license for Shoreham. Following entry of Judgment in Cuomo v. LILCO, LILCO sought summary disposition of Intervenors' legal authority contentions, arguing that any state-law-based restrictions on LILCO's offsite emergency planning activities were preempted and therefore void.1/ By Partial Initial Decision dated April 17, 1985, the ASLB rejected LILCO's preemption' arguments and denied LILCO's Motion for Summary Disposition. LILCO also raised, and the'ASLB rejected, LILCO's so-called " realism"5/ and " immateriality"6/-defenses. The ASLB concluded that 4/ These Intervenors and the NRC Staff opposed LILCO's Motion and rejected its-preemption theories. 5/ LILCO's realism argument is that any lack of legal authority on LILCO's part would be cured in a real emergency _ because the State and County.would in fact respond. Petition at 6. 6/ LILCO's immateriality argument is that NRC regulations do not. require all of the activities LILCO proposes to take in
' (Footnote cont'd.)
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; l f~ LILCO's activities as specified in Contentions 1-10 are unlawful and that LILCO has failed to submit "an implementable, g comprehensive, and effective emergency response plan for Shoreham." Long Island Lighting Co., (Shoreham Nuclear Power Station, Unit 1) LBP-85-12, 21 NRC 644 (1985). See, also, the ASLB's Concluding Partial Initial Decision, pp. 34-5: "[T]here 'i is no reasonable assurance that adequate protective measures P
can and will be taken in the event of a radiological emergency at Shoreham, and therefore no operating license shall be issued a On appeal, LILCO renewed its preemption argument, again without success. The Appeal Board concluded that "LILCO is entitled to submit an emergency plan in the absence of a state or local plan in an effort to demonstrate that the public can be adequately protected. But federal law does not override enforcement of the statutes of the State of New York that impede or foreclose LILCO from presenting a viable emergency plan to the Commission for review." ALAB-818, p. 34.1/ (Footnote cont'd.) carrying out its Transition Plan. Petition at 6, n. 11. LILCO's Petition cites no errors in the Appeal Board's rejection of the immateriality defense, and LILCO has appa'rently abandoned that defense on this appeal. 7/ The Appeal Board rejected LILCO's realism argument on the ground that NRC regulations require more than an ad hoc emergency response; assuming arguendo that the State or County would respond to an accident at Shoreham, the Appeal Board (Footnote cont'd.)
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V , - t l 8 t-l l u . Although LILCO's-Petition for Review is replete with j irrelevant factual allegations and predictions of " dire consequences," the essence of'that Petition can be stated simply: the Atomic Energy Act preempts any New York State s atatute that prohibits LILCO's performance of inherently governmental functions and thereby inhibits LILCO's implementation of its offsite emergency plan. This Commission sh'ould understand the full scope and significance of LILCO's claims: LILCO asks this Commission to invalidate the basic
' governing statutes of New York State that determine who may exercise' governmental powers. LILCO asks this Commission to invalidate the New York corporation laws that confer limited, nongovernmental powers upon state-chartered corporations.
LILCO asks this Commission to decide that the Atomic Energy Act confers _ governmental powers on public utilities. And LILCO asks this Commission to license a nuclear plant on the basis of an illegal emergency plan and the prospect of some unspecified governmental response-to a nuclear accident.
-( Footnote cont' d . )
found that no state or county response plan had been submitted and LILCO had, therefore, failed to present any basis for an adequate: assurance finding. The Appeal Board rejected LILCO's immateriality argument E lon the ground that NRC rules require some provision for evacuating the public whereas LILCO's Transition Plan, in light of the Cuomo v. LILCO decision, ofered only "an aspiration that l- the public will be able to fend for itself." ALAB-818, p. 43. e
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I 3 LILCO's legal position has no merit. It has no basis in the Atomic Energy Act. It has no support in the decided cases. .It is inconsistent with this Commission's prior statements and its representations to Congress. It has been
- rejected by tho'ASLB, the' Appeal Board and the'NRC Staff.8/
1 LILCO cannot establish any legal basis for its
' attempt to perform governmental actions and implement the Transition Plan. It cannot prove "that adequate protective
, measures can:and.will be taken in the event of a radiological emergency" at Shoreham. 10 C.F.R. 550.47(a)(1). Accordingly, LILCO cannot satisfy the requirements for grant of an operating license. II. THE COMMISSION SHOULD DENY LILCO'S PETITION FOR REVIEW 4 A. THIS COMMISSION HAS RECOGNIZED THAT OFFSITE EMERGENCY PLANNING IS A FUNCTION WITHIN THE TRADITIONAL JURISDICTION OF STATE AND LOCAL GOVERNMENTS e The. Atomic Energy Act establishes a dual regulatory structure for nuclear-powered electric generation. The federal government has regulatory jurisdiction over the cbnstruction 8/ As previously noted, the U.S. District Court has previously rejected a variant of LILCO's preemption theories, holding that the County's decision not to adopt an emergency
- response is lawful and does not conflict with the Atomic Energy Act.- Citizens et al. v. Suffolk County, supra.
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i 6 and operation of nuclear power plants; states, however, retain their traditional powers in " areas that have been characteristically governed by the states." Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Comm., 461 U.S. 190, 205 (1983). This Commission has repeatedly acknowledged that oftsite emergency planning falls within the traditional jurisdiction of state governments: "the State and local governments have the primary responsibility under their constitutional police powers to protect their public..."9/ In this case, LILCO challenges statutes (e.g., the Municipal Home Rule Law and the Business Corporation Law) that are clearly within a state's traditional prerogatives; those statutes do not directly involve emergency planning. "LILCO acknowledges that the New York statutes at issue were passed long ago for purposes wholly unrelated to nuclear power or emergency planning for nuclear power plants." ALAB-818, pp. 15-16 (ftnt. omitted). 9/ Advance Notice of Proposed Rule, 44 Fed. Reg. 75,169. See also testimony of Joseph M. Hendrie, Emergency Planning Around U.S. Nuclear Power Plants: Nuclear Regulatory Commission Oversight Hearings Betore a Subcommittee of the Committee on Government Operations, 96th Cong., 1st Sess. (May 14, 1979) at 380, 398-399, in which former NRC Chairman Hendrie stated,
"[iln the event of a radiological emergency at a commercial nuclear station licensed by our agency, the protection of public health and safety outside the plant boundary is basically the responsibility of State and local governments."
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I s Moreover, the Commission has consistently recognized that state action or inaction regarding offsite emergency planning may prevent the licensing of a nuclear plant.10/ Indeed,. this. Commission adopted its offsite emergency planning regulations in the face of nuclear industry objections that "the proposed rule frustrates Congressional intent to preempt State and local government veto power over nuclear power plant operation" and in full recognition of the fact that the rule would "in effect [give] State and local governments veto over the operation of nuclear plants." 45 Fed. Reg. 55,404, 55,405. Notwithstanding these objections, the Commission adopted the final rule, stating its rationale as follows: The Commission recognizes there is a possibility that the operation of some reactors may be affected by this rule through inaction of state and local governments or an inability to comply with these rules. The Commission believes that-the potential restriction of plant operation by state and local officials is not significantly different in kind or effect from the means ! already available under existing law to prohibit reactor operation, such as zoning, and land use
- laws, certification of public convenience and l necessity, state financial and rate considerations ... Id at 55,404.
i Thus, the NRC has acknowledged that emergency planning is an 10/*See 45 Fed. Reg. 55,403: "After April 1, 1981, an operating plant may be required to shut down if it is determined that there are deficiencies such that a favorable NRC finding cannot be made or is no longer warranted and the deficiencies are not corrected within 4 months of that determination."
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The Appeal Board recognized the force of these NRC pronouncements; LILCO studiously avoids any reference to them. In sum, this Commission has definitively ack,nowledged that emergency planning is a subject reserved for state and local action, and it has categorically accepted the fact that Otate actions -- or inaction -- may " prohibit reactor operation," just as state zoning or land use laws may. Thus, this Commission has rejected the position LILCO now argues, and it has accepted the " potential restriction of plant operation" that LILCO seeks to avoid. The Commission cannot now reverse its field or retreat from previously-stated positions. See, e.g., U.S. v. Nixon, 418 U.S. 683, 695-6 (1974) (NRC must follow its own regulations). B. THIS COMMISSION HAS RECOGNIZED THAT EXISTING FEDERAL LAW DOES NOT AUTHORIZE UTILITIES TO CARRY OUT GOVERNMENTAL FUNCTIONS New York State law does not authorize a utility to exercise governmental powers. Cuomo v. LILCO, supra. LILCO must, therefore, identify some basis for its purported legal authority if it hopes to demonstrate that it has an offsite
~
plan that can be implemented. This Commission has acknowledged l that existing federal law does not authorize a utility to P perform governmental functions in order to implement an offsite 1 l j
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; emergency plan. In February, 1984, while presenting the NRC's i
budget message to the Senate Subcommittee on Nuclear Regulation, Chairman Palladino identified the utility authority issue as one that required additional Congressional action: Two important new questions are whether State or local governments have an obligation to
, participate in emergency planning and, in the absence of State or local participation, whether a licensee has the legal authority to carry out proposed actions that normally would be handled by State or local governments in an actual emergency,...
It is also important for the subcommittee to work with FEMA and NRC to come up with a solution to the problem of legal authority in the absence of State or local government participation. A possible approach would be to make available Federal resources if a Governor requested them. [ Emphasis added.] Fiscal Year 1985 Budget Review Hearings Before the Committee on Environmental'and Public Works, S. Rep. 98-758, 98th Cong., 2d Sess. (February 23, 1984) at 405. Chairman Palladino's testimony clearly stated the Commission's view that additional Congressional action is required to resolve the_ utility authority issue. Chairman Palladino's testimony reflects the Commission's recognition that Congress has not authorized public utilities to carry out gove'rnmental functions or to undertake offsite actions l otherwise prohibited by state law. His testimony flatly contradicts LILCO's argument that the Atomic Energy Act or the post-TMI Authorization Acts grant it legal authority to
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t implement its offsite emergency plan. The Commission cannot credibly abandon that position in this proceeding. C. THIS COMMISSION HAS RECOGNIZED THAT COMPLIANCE WITH ITS EMERGENCY PLANNING RULES REQUIRES A LEGAL, IMPLEMENTABLE PLAN LILCO's realism argument is fundamentally at odds
-with the approach that the Commission has taken to offsite emergency planning. The Commission's regulations require that an applicant demonstrate prior to the issuance of a license that an adequate offsite emergency plan can and will be implemented. LILCO has failed to do'so for at least two reasons.
First, LILCO cannot implement the Transition Plan that it has submitted for NRC review. The New York Supreme Court has squarely held that the Plan involves " inherently governmental" functions that LILCO has no authority to carry out. Second, the NRC's emergency planning rules require a preplanned, coordinated effort by all concerned parties. LILCO cannot legally participate-in any such effort, and any County or S, tate responses will necessarily be ad hoc actions in light of existing circumstances. The NRC cannot issue a license for Shoreham based on LILCO's predictions of what may happen in the event of an accident. As the ASLB recognized: i
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t i The emergency planning regulations, in order to provide for an effective response to a broad ^ spectrum of possible accidents, require through comprehensive, cooperative, and detailed preplanning and ability by the concerned entities, including the utility, by the various government groups, and the citizenry, to mount a very highly coordinated effort.... Applicant anticipates the state and county will provide for a planned response, but only after Shoreham begins to operate [ cite omitted). We must base our determination on what the proposed plan actually provides and whether it currently complies with the regulatory requirements so that a determination can be made whether there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.... We can not base a judgment on the adequacy of the Plan on conjecture, as LILCO would have us do. Partial Initial Decision at 413-14. The Appeal Board reached the same conclusion. ALAB-818, pp. 34-39. LILCO's Petition never states why the ASLB and Appeal Board decisions are inconsistent with the Commission's regulations. Accordingly, LILCO has not established any basis for review. 10 C.F.R. S2.786(b)(2)(iii). In sum, the Commission has expressed its view on the issues germane to LILCO's Petition. It has acknowledged that ~ federal law does not preempt state actions in the area of offsite emergency planning. It has recognized that federal law - does not grant utilities legal authority to undertake
'L 3
-governmental actions. Its rules require that an emergency plan must provide for a pre-planned, coordinated response to a plant accident.
The Commission cannot add anything to its prior statements on the legal issues presented by LILCO's Petition. Moreover Irom a practical standpoint, NRC review of ALAB-818 will~only delay a final judicial resolution of the legal questions at issue. Finally, any policy issues presented by LILCO's Petition can be addressed only '7y Congress. . Accordingly, Commission review of ALAB-818 has no justification. LILCO's Petition should, therefore, be denied. i III. IN THE ALTERNATIVE, THE COMMISSION SHOULD DENY LILCO'S PETITION TO THE EXTENT THAT LILCO RAISES NEW ISSUES If the Commission grants LILCO's Petition For Review, the Commission should consider only those issues raised before the Appeal Board and addressed by ALAB-818. -In fact, LILCO's Petition raises additional issues outside the scope of ALAB-818. First, LILCO raises for the first time a due process argument with three variations.- Petition, p. 11. Besides being incomprehensible, LILCO's due process arguments were never presented to the ASLB or to the Appeal Board. No reason exists (and LILCO offers none) to explain why these arguments were not presented to the Appeal Board. The Commission should not permit LILCO to advance these-due process arguments for the e, c i E.
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; I first time at a second stage appeal from the ASLB decision.
See 10 C.F.R. SS2.786(b)(2)(ii) and 2.786(b)(4)(iii). Second, LILCO's Petition devotes two lengthy footnotes to arguing against the validity of Suffolk County's emergency planning resolutions. See Petition p. 3, n. 6 and p. 8, n. 17. LILCO did not challenge the validity of those resolutions before either the ASLB or the Appeal Board; instead, LILCO joined the Citizens action brought in the U.S. District Court. As previously noted, that Court found that the County's resolutions are not preempted by the Atomic Energy Act. Citizens et al. v. Suffolk County, 604 F. Supp. 1084 (E.D.N.Y. 1985). That decision is binding on the Commission under the doctrine of res judicata. Moreover, any claims relating to the validity of the County's resolutions are irrelevant to this proceeding. Those resolutions do not affect LILCO's legal authority to implement its Transition Plan. That issue is controlled by the basic state statutes that are the foundation of the Court's opinion in Cuomo v. LILCO, supra. See Exhibit A. - In sum, if the NRC grants LILCO's Petition, it should issue an order, pursuant to 10 C.F.R. S2.786(b)(6), specifying that'its review of ALAB-818 will be limited to the following j questions: i
E I
- 1. Did the Appeal Board correctly decide that federal law does not preempt those New York state laws that prohibit LILCO's exercise of governmental powers?
- 2. Even if federal law preempts New York state law, does LILCO have any legal authority to carry out the governmental functions necessary to implement the Transition Plan?
- 3. Did the Appeal Board correctly reject LILCO's realism argument?ll/
Finally, Intervenors agree with LILCO's suggestion that, if review is granted, the Commission "should not make its decision on the pleadings to date, but should set an expeditious briefing and argument schedule." LILCO Petition,
- p. 14, n. 26.
CONCLUSION Commission review of ALAB-818 is neither warranted nor necessary, and such review will only serve to delay a final judicial resolution of LILCO's position. 11/ As previously noted, LILCO has apparently abandoned its immateriality argument.
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s I Martin B. Ashare, Esq. Arlene R. Lindsay, Esq. Suf folk County Department of Law Dennison Building
! Veterans Memorial Highway Hauppauge, NY 11788 Herbert H. Brown Lawrenge Coe Lanpher p Kirkpatrick & Lockhart i 1900 M Street, N.W.
Suite 800 Washington, DC 20036 David A. Brownlee Michael J. Lynch Kenneth M. Argentieri Kirkpatrick & Lockhart 1500 Oliver Building Pittsburgh, PA 15222 Attorneys for Intervenor, Suffolk County Fabian G. Palomino, Esq. Special Counsel to the Governor of the State of New York Executive Chamber Two World Trade Center 57th Floor New York 10047 i Robert Abrams, Esq. Peter Bienstock, Esq. Mary M. Gundrum, Esq. l Attorney General of the State of New York Two World Trade Center Room 46-14 New York, NY 10047 l Attorneys for Intervenor, State
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f. John F. Shea, III, Esq. Stephen B. Latham, Esq. Twomey,'Latham & Shea-33 West Second Street Riverhead, NY 11901 Attorneys for.Intervenor, Town of Southampton Dated: ' November 18, 1985 l l. l l l I I L i 1 1 4 9 i if ,
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- lir.ultuur,u N.Y. 117516 Eva Arlono R. Lindsay. Esq. .
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Wenneth H. Argent . Of Counsel ATTORNitYS.FOR PLAINTIFF TOWN OF SOUTHAMPTON: TuCHEY, LATHAM & SilEA. 5505 ..' - 33 t?ost second st. Mtverhund, N. Y.11901 Myn Stephen B. Latham, Esq. Of Counsel
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l EXHIBIT A
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t . . INTRODUCTION l The state of New York (STATE), the County of Suffolk (COUNTY) ! and the Town of 50,uthampton (TOWN)
- i centactionsagainsttheLongIslan,dLightingCompany(LILCO)$
service corporation incorporated pursuant to the laws of the a pu 11e i New York and'primarily ' engaged in the productionles distribution fromand asle attempt LILCO's cf electricity on Long Island. These actions ar i to secure approval of its " utility" sponsored offette enart,ancy response ! plan for its nuclear plant located at Shoreham. The plaintiffs seek a i dec1 station that LILCO does not have the legal authority to carry ~out- l its plan. , .
. LILCO het moved to dismiss this action and~ the pisintiffs have l l cross-moved for summary judgment. The Court in order to address the i issues contained in these motione, must examlne the events leading up to ;
i the commencement of these declaratory judgment actions. . THE AT0 HIC INERGY ACT OF 1954 The Congress of'the United States cognisant of the need for nhv methods of producing energy, passed the, Atomia 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 Jf New Yar_k. 463 F.89pp. 604). The Atomic Energy Comission MEG) vse designateg by the Act to oversee the construction and operation of nuclear power plants. This was to be
, i First, the operator of i occomk.slished a nuc ese plantby wasa two step licensin5 required to obtain procedure.
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 the plant from the AEC. The AEC in the latter licensing procedure, was interested mainly in the onalta preparation for an amorgeney. , The licensing and regulating functions of the ABC vse tenne-forred to the National Regulatory Comission (NRC) by the Reorganization Act of 1974 (U.s.0. 55841 (f) ). , non:Han . In 1968 LILCO applied to the AEC for a oe:1 nit to construct an 520 megawatt nuclear powered electrie generating facility on property . located at ghoreham in the Town of Srookhaven, County of Suffolk State of New York. The application was opposed by a private organisation known ne the Lloyd Hcrbor 8tud The latter use permitted to intervene End crossaoxamine LII.CO'y Croup.s witnesses at hearings before the ARC. ,. None of the plaintiffe herein were parties to the permit appli-estion proceedin5s. However, the late M. Lee Dennison, Buffolk County l Executive at the time, made a ilmited ' appearance before the licensing board in 1970 and spoke in favor of the issuance of a conetfuction Permit ,
-1 -
l
j . . Construction Permit Hearings, Transcript 209, 211, 216, 1970). The . i poemit to construct a nuclear facility at shoreham van issued by the AEC l in 1973). - i . The approval of the shoreham construction permit was the catalyst for the issuance of an order by the Ruffolk County Executive to the appropriate COUNTY department to develop a " Response Plan for Major Hadiction Incidents". In 1975, representatives from LILCO and the COUNTY role l hold for each a series of themof meetings in order in the event of atomajor defineradiological the emergency planninlhoraham. accident at l 1 These conferences culminated in the development of a plan known as "Suffolk l County's Ceneral Radiation Emergeney Plan". The latter was approved by l the Suffolk County Executive on August 30, 1978. , THREE MILE I5 LAND , 1 The accident at the Three Mile Island Nuelear facility (THI) at Harrisburg Peooeylvania in March 1979, demonstrated the need for in-provingtheplanningforradiologicalemergencies. The NRC, prior to the i THI accident did not tendition toevance of an operating 11 ansa,for a nuclear plant upon the existence of an adequats offsite emergency plan. l The TMI accident focused attention on the fact that nuclear accidents . l may endangar surrounding communities and require the mass evacuation of j people in thone communifiep, . . ' Congress, in response 'to the events which occurred at THI, determined that no nuclear plant should be licensed to operate unless an , adequato amorgency plan could be drawn up and implemented for the nraa i surrounding the nucIvar facility and passed the NRC Authorization Act of 1980. , The NRC in implesenting the policy pxpressed by Cootfees, - promulgated a number of regulations which included the mandatory submis . elon of an adequate radiological emergency response plan (RERP) The RERP bymget an . applicant desirous. of operating a nuclear power plant. des cribe in detail how nuclear emergencies will be handled within a ten mile radius plume exposure pathway emergency olenning sone (EPZ and also l within a fif ty mile radius food inges'tior. pathway (45 lei. De . 55, 402 August 19 1980 and 10 C.F-R.150 35(g) 1954). An operating license is l issued only if the NRC finds that there is a reasonanle assuranes that adequate protective measuras can be taken to protect the area surrounding the nuclear facility in the avant of a radiological emergency ( 10 0.F.R. . 150.47(s)(1)1984).
- FROM PROTAGONIST TO ANTAGONIST -
' A careful atody of the NRC regulations indicates that the emergency plans such as RERF, which were is be submitted by licensing .
applicants wot:4 probably have some imput by those governmental units having jur'indictiva aver the area to be evacuatud in the event of a nuclear emergency. The "Hemorandum of Understanding" siFed by County EWecutive John V. W. Klein and LILCO on December 28, 1979 and the approval , 2-i
! 'er the terms of osia ngrooment by the County Eweeutive Elect Potor 7. I Cohainn, gives credence to this analysis of the NRC regulations (ses l Ictter from John V. N. Klein to fra Troilichor, Vice President of L1LCO, j dnted December 31i 1979). . j A numbur of discussions took placo betuvon L11.C0 and COUNTY i representativen between 1980 and 1981 for the purpose of determining the i best means of developing an acce? table RF,RP. Those discussiona led to the signing of a contract between L1".00 and the COUNTY on March 15, 1981. The I COUNT 4 ogrund to duvolop an emergency plan and LILCD in tufn consented to
- 3ayin the projected 5245,000.00 cost of preparing the 71an. The County i ;.egiv.ature, in September 1981, approved the terms of tie agrooment and 1.11.C0 advnneud $130,00000 as the first installment on the payment of
$245.300.00. The Intter was to be paid in full on March 18, 1982, the schuduled completion dat'o of the PLAN.
On Pobruary 19, 1982, the COUNTY advised LILCO that the $150.000.0( advnnuumont would be returned because of the ". apparent conflict of interest" in the acceptance of any funds from LILCO for the purpose of preparing an umergency glan (see letter detod February 19 1982 from f.ve E. Koppelman. Director or Planning for Ruffolk County to LiLCO). On March 23 1982 the Suffolk County Legislature pseeed a resolution authorising the s,uffolk County Planning Department to prepara a new emergency plan which was to hs submitted to the Legislature for its consideration (Resolution 262-1982). On Februory 19, 1982, the COUNTY advised LILCO that the $150,000.0C ndvincoment would be returned because of the "e, parent conflict of interest" in..the acceptanco of any funds from LILCO for tTe purpose of preparing an vmorgency plan (see Iwtter dated Tobruary 19, 1982 from Lee E. Koppelman, toLILCO). On March 23, 1982 the Director of Planning Suffolk County for 8uffolk Legislatura passedCounty'olution a res authorizing the Buffolk County Planning Department to prepara a new smorgency plan which was to be submitted to the Legislature for ita consideration (Resolution 262-1962) The Planning Department, in accordance with the f.egfelative directive, nubmitted a RERP in December 1982. A nu'mber of public hearings were hold by the Legislature to co66ider the PLAN in January,1983. The 1.ogislature, 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 a,ction was that ... .,
"151oce) no loesi radiological emergency response plan for a serious nuclear accident at Shorehem.will protect the ,
welfare, and safety of Suffolk County residents. hesich,he
. . . .t County's radiological emerg&ncy planning process it hereby terniinated. and no local radiological emergency olan for response to an accident at the Shoreham plant
' hall be adopted or implemented . . .
t .
. . . [5]ince no radiological amargenev olen can protect the health, welfare, and safety of suffolk County resi-dents and, eince no radiological amargency plan shall be adopted or implemented by Fuffolk County, the County gxecutive is hereby directed to assure that actions taken .
by any other overnmental .. ba it State or Federal, are consisten with the de!!!i h fn6ndated by this Rese-lution." . . (Resolution 111-1953). , ; The Govesmor of New York after reviewing the results of a study by.the Mathurger Commission,,an independent committes appointed announced that no by RERp theforGovernor Shoreham to would study be
'theadopted Shoreham situation,d by the 87 ATE.
or implemente , THE LILCO TRANSITION FLAN
, LILCD, interpreting the COUNTY's refusal to adopt a plan as a derogation of its responisbility under Article 25 of the New York ExecQ.
tivo Law. submitted its own plan to the NRC. The PLAN has been desig- - mated "The tilco Transition Plan". (PLAN) The PLAN describes in detail the actions which LILCO proposes - to take in the event of a radiological emerAency at the shoreham facility. The PLAN is contained in four volumes. One volume is entitled "8hotsham Nucluar Power Station - Local Offsite Radiological teergency Response Plan". Two volumes see entitled "Offsite Radiological Emergency Response Plan". The fourth volume is designated as " Appendix A - Evacuation Plan". , Ilighlights of the PLAN which would be utilised in the event of
.o rrdiological accident may be outlined as follows: -
- 1. The organisation which is primarily responsible for imple-menting the PLAN is known as the Local Emergency Response organisation (LEll0) . This group is composed of over 1.300 LILCO employasa and con-aultants. .
- 2. The Director of LERD, a LILCO employee. would have the primary responsibility for,the coordination and implementation of the PLAN. He '
would make certain that the following mentioned functions would be carried out in. the event of a nuclear accident at 8horeham. ,
- 3. Assessment of the severity of the nuclear accident.
- 4. Determination of the action to be taken in order to protect -
the publie.
- 5. The declara::ien of an emergency. ,
- 6. Notification of the public by the following methods: ,
a) The activation of 59 fixed sirens. b) The transmittal of messages on an Etnergency Broadcast
- System (EBB). . ,
c) The transmittal of signals on tone alert radios. h
-A- l
I I
- l 7. The instruction of the publie by meant of E55 messages as to protective measures to be taken, imeluding aslective and 5eneral .
cvaeustion of the EPE.
- 8. Telementation of traffte control measures in order to ovscuste the.public along specified routes.- These measures include the is11cwina . .
7 a) The conversion of a two mile stateh of a two-way rond
. into a one-way road. .
b) The placement of roadblocks to cordon off the immediata c plant ares. . e) The placement of 193 traffic guides at 147 tesifie control pointe throughout the EPI. These traffic guidee, by the utiliantion of. cones and hand - signals will channel traffic along the designated
- avacuatlen routes and discourage traffic from pro-seeding along different routes. .
- d) The placement of LILco vahteles, cones and flares .
' in the traffic lanen before sertain entrance ramps on four evaeustion routes to cause traffio to move i into adjoining lanes in order to permit the continuovt
- flow of traffic onto the routes from such ramps.
a) The auchorisation of the use of road shoulders and j the creation of lanes for turnpockets. .
- 9. The erection of poemanent trailblazor sinns along all
- avacuncinn rnuteA.
l 10. The removal of stalled cars and other obstacles from the . roaduay by tow trucks. .
- 11. The formulation of protective action recommendations which .
6re to be broadcast to the publie present in the ingestion exposure path-These recommaedations may imelude the following: way. . . a) The placement of' dairy animals on stored feed. b) The removal of dairy anime19 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 o dry Whole milk. e) The washing o(r scrubbing of fruits and vegetables prion . to consumption. f) The suspension of fishing operations. .
- 12. The making of decisions and recommendations with reference .
1 to recovery and re-entry to the EPE after a nuclear sedident. .
. -5, .
~
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1 - .
- f. THE CATALYST FOR THS INSTANT PROCEEDING The Atomic Bafety and Licensing Board (ASLB), en administrative panel of the NRC, has boon and still is in the process of conducting hear-inAs to determine if the plan complies with NRC standards and is capable of l
being implemented. 4 ) . i
- L1LCO has represanted to .the NRC that it may I'awfully implement its PLAN _ and that neither State nor Federal law prevent LILCO from perform..
ing the functions described therein. The ETATE, COUNTY and TOWN have advised the NRC that L1LCO lacks the legal authority to carr i These Governmental bodies have filed ten " legal contentions"y with out the its plan. A8LB setting forth their positions on the lack of legal authority by LILCO *
- to imp 16 ment its PLAN. -
1 ~ l The Federal Emergency Management Agency (FiMA), the Federal .
- has advised the ASLR rhat body' charged it cannet determine whether the LILCO PLAN can with the initial reviews of RERP8,be implemented until the
- legni authority issue has baan resolved (see Letter of Richard W. Krainer, Assistant Associate Director, Division of Emergency Preparedness and ,,
Engineering Response, NRC). , The Chairman of the A5LE, after listenin to all sides and I considerins F8MA's views, datarmined that the ten fegal contentions filed by the plaintiffs herein present issues of New York State Law and he urged the parties to set a resolutirn in the 8 tate Courts (Transcript A8LB { January 27. 1984 p. 3673). . On Marsh 7, 1984, separate actions seekins a declaration that . lit.00 did not have legal authority to execute its PLAN was commenced by the STATE and COUNTY in the New York State Supreme Courts. The COUNTY s , ! complaint alleges that LILCO's implementation of its PLAN would be unisw-i ful, illegal and a usurpation.of the police peu. ora of the ETATE. The ! COUNTY specifically mentioned that the execution of the PLAN would violate l the New York State Constitution, the Municipal Home Rule Law and the Exocutive Law. The STATE similarly alleled that LILCD is precluded from exureising the functions mentioned in the PLAN. In addition, the 8TATR oited that the imp 1'ementation of the PLAN would be violative of the i Transportation Corporations Law, the Suoiness Corporations Law, the vehicle l the Public Health Law, the Agricultural and Markets Law , j cnd cnd the Penal Co Traffic Law,de. , LILCO did not serve an answer but immediately moved to dismiss i the nations on the grounds that the Couft did not have subject matter : ] jurisdiction and the complaints fail to state a cause of action. . LILCO before any action'teuld be taken with reference to its ! motion ' removed,the declaratory jud5 ment actions to the Federal District CourtInApril1953. It elaimed that the challenge to its legal authority-i prouanted a question of federal law that vos within the originsi juris-
) dintion of the federal courts. The STATS and COWTY filed motionsThe for a .
remand of their actions bee)e to the New York State Supreme court. . j Pndural Diatrict Court ruled that LILCO's federal law claims and its invoca , I j -6. l 1
~
tion of thei federal preemption argument eenstituted affirmative defepsee that enuld be raised in a atste court proceeding (Cuomo v. Lilcos County of Suffolk v. M M as Nos. CV-84 1218, cv 84-1405. D N.Y. June 13 ~4954 . On August 14 Ave 4 the STATg and COUNTY 60tions were cons,olidated,in this Court with a s,imilar, action for declaratory jujgment coWLonced by tho TOWN in.May 1984. - 1,1LCO renewed its potion to dismiss the complaints on the grounds that this Court does not have subject matter jurisdiction beesuaa no ju,et'iciable controversy is present and the complaints fail to statra cause of action. *
. JUSTICIABLE CONTR0V8RtV,7 .
LTLCO maintains that no reti dispute exiits concerning its 1egal complaints authority to actupon are based in thea event "h of an emergency because the plaintiffs' That " hypothetical scenario", ypothetical according to'ocenario LILCO is' that thatwill thenever utilityensur. alone will respond to a radiological emergeno" at Shoreham. LILc0 boldly pro-claims that "in fact New York and Buffolk County would respond in the event of an actual emeraency at Shoreham" and thus the "hypothetteal sennario" in the comp 1AInt that "L11st alone 'would perform the contested petivities" is moot. ' LILCO's sharetteri'sation of the complainte as being,bened on a
- hyppthetical scenario is without any basis in fact and can only be 4ttri- ~
buted to "wishffi thinking". One does not have to be a enisa to secer- -
~
tain that. the inue 'prasented by these actione.ta the le el authority of LILCO to execute the Pl.AN 66d not whether the PTATg or C UtrfY will or will not respond to e radiologiesi emergoney at Shofehem. What constitutes a justiciable controvernyt The neespeary elements of a justiciable controvery.are a legally protected interest and a present dispute (Davis Construction Corn, v. County of_ Suffolk e 332 Mlac.2d 652, 447 W.Y.s.za 355, aff'd. 93 A.D.2d sly 451.N.V.T2d , 519 GokdinBoard of co-Oper_stive-rouestioaal 267, 325 N.Y.57 6 955.services NassadfounJe v; i 35 A.D.2d These _,Arennte are present in l' iho ids, tant matter. qThe plaintifffs have an interest in insutlna that .I their governmental powere sfe u t veurpsd by a private corphration. LILCO olaims that it has a right to exercise the functions mentioned in the s PLAN.. How can anyone say that a bona fide controversy doca not exist? .. The Court is of' the spinion that the declaratory judgment action la the best vehicle to solve the controversy herein as attested to by th's folleking : language of the Court of Apposis in the case.of New York Public
-Interust Researefi Grout _Inc._ v. carey, 42 N.Y.2d 527, 399 w.Y.5 7s e21 -
at page oza *
". . .The need for judicini intervention fe ' obvious when, because of the actions of one of the parties, a dispute ,
arisos as to whether thece has been a breach of duty or . violatien of the law. Than the courta een declare the . rights 'and obligatione of-the parties, and if a branch } is found compel compliance, award damages or otherwise order app,ropriate action to be taken.
s ' u . l
./ , . ;
That is the traditional, but not the only way in which e genuine, legal dispute may arise or be resolved by the sowrts. For instance, when a party contemplates taking certain action a genuina dispute may arisa before any breach or violation has occurred and before there is <- any need or right to resort'to coercive measures. In such s' case all that may be required to insure complianca with,the law is for the courts to decIsfe the ri 5hts and , ? obligations of the parties so that they may act accord-ingly. That is the theory of the declaratory judgment actions authorised by CPLR 3001 (,Iama v. Aldartnn Deek Yar.da, 236 N.Y. 298,176 N.E. 401: Siegel, Practiet Commenteries McKinney's Cons. Laws of N.Y., Book 78, CPLR
. 3001,pp.35$357: 3 Weinstein 1(orn Hiller, N.Y. Civ.Prac. ,
-{ar.3001.02:
~
Rev., pp.1Borehard3). Declaratory Judgments, 9 Brooklyn . lhecontroversyconcerningLILCO'slegalauthoritytoimplement t '.its PLAN is taal and present. Resolution of the dispute will determine whct the police gewars of the STATg entail and if those Powers have been , usurped by LILCO a PLAN. The determination of LILCQ's-authority to imple= mont the PLAN will have a sinnificant bearing on its application for an . operating license at 8horeham. The interests of the parties are clustly !, at stake in this proceeding. The Court can not envis' ion a better example l of a . justiciable controversy which is ripe for a judicial determination. In a dec14ratory judgment action., . Tile 185U5 :
- LILCO, as previously mentioned, moved to dismiss the complaints l pursuant to Section 3211(a)(7) of the CPLR on the ground that the com-L plaints fail to stete a cause of action. LILCO contends that (1) "New York law does not prohibit it from performins the activities mentioned in the complaints: and (2) if state laws "were construed as plaintiffs -
allege, they would be preempted under the Supremacy Clause of the United . States Constitution and by federal statues and regulations." .
' ~
- The Court, at the behest of the parties, issued an order dated October 4,11984 which limited the issue to be decided to that of LILeo's .
legal authority to implemedt its PLAN under the laws of the State of New . York. The parties have submitted the pleadings, trans cripts of their oral arguments before the Court, offidavite the PLAN, voluminous briefs and documents sod thofe is no need to hold,a hearing as none of the material facto are in dispute. . , A synopsis of the posture of the esse to be decided by the Court end the issue involved is deoctibed na followss , LILCO, in order to obtain a license to operare its shoreham facility, must submit a plan for respondin5 to a radiological accident , which the NRC finde is adequate and capable of being implemented. LILC0 has submitted a PLAN to dost with a radiologiesi emergency at Shorehem. The plaintiffs have challenged LILCO's legal espabilities to perform the . 5 . \" .
1 l . . 1 4 . j - . funettone contained 'in the PLAN and maintain that the PLAN amounts to a i usurpation of the SYATE's police powers. The progoced functions are undisputed and set forth at great innsth in LILCD s four volume PLAN. The
- legality of LILCC's performance of these functions under the lawe of the state of New York is he' fore this Court for a resolution. .
THE p051T!0NA LILCO's basic premise for its view that it has a vi ht to 5 impleme'nt the PLAN under the laws of the State of' New York is foun' in
- the following statement contained in the PLAN at F 1.4=1.8
- "(N)othins in New York State law prevents the utility
' from perfoming the necessary functions to protect the publio. To the contrary, Article 2-3 o'f New York Stat & Executive Law, Sec. 20.1.e. makes it the policy of the 5 tite that State and loesi, plans, organisation arrangements, and responso capability abe the most effective that current circumstante and existing resources allow." " ' This argument has been succintly advanced by counsel for LILCO in his statements before this Court on January 15, 1985 and transcribed et pages 26 and 27 of the minutes in the followina concise mannor: .
~
"Under oitizen,theany LILCD view, action t hat I want to take of any type that isas a priva .
not prohibited by law, or that does not threaten the health of one of my fellow citizens, unless that action is expressly prohibited by state law, that I've got a right to do it. That's part of my rights as a citizen of thIs country, and
- if I were a citizen of New York (c's part of my rights under the New York constitution." .
LILCO, in addition to this argunent, also meintains that its activities under the PLAN do not amount to an exercise of polica power. It bases its contention on two grounds. First, the PLAN "does not propose to, and will not, use force or the threat of force to com al obedience to anyone or an Bacond, the essence of the STATE a police gewer la " regulation"ything."and the ability "to incarcerata persons who engage in pro-hibited activity" and 1,1LC0 is simply "plannin5 for and responding to e radioingical emergency" and "not rtegulating an emergency response." The plaintiffa' orgument is rather simple. They maintain that
- the activities which are to be performed by IILCO employees as delineated in the PT.AN gra governmental functions and amount to a usurpation of the BTATE's police power and thus is prohibited under New York state Law. ,
.p.
I i L ._._ - - - . _ -'
THE ATATE'5_ POLICE POWER A resolution of the controversy herein necessarily involves a l liscussion of the sourps, nature and exercise of the police power of the 'ITATE. . _(s) THE 8011RCB ,
-Ivi our system of governmant, the police power is an inherent
! attribute and peregative of state severeignty (Teeval Co. _v. Stern, i ! 301 N.Y. 346, cert, den. 340 U.s. 876). The Tenth Amendement to tha
- l Constitution of the United States specifically provides that the exercise of the police power for the sentrol welfare 399ofF.the public Supp. 133, iseff'd, e right 535 F 2d i reservedThis to the States (Drown v. Jrannon,by principle has oesn attirmes our Courte even before the even i 2249).
l of tho 1900's (See Nunn v. People of Illinois, 94 U.S.113). , , I i (b) THE NATURE } One cannot den that the police power is the STATE's most essen-eff'd 291 U.S. 5D2). Nor tial power (people v. 51 bis, 262 N.Y. 259can one dispite that the protectio un uestionably at the core of the STATE's police power (Kelly v. Johnson,he 42 U.S. 238). Our courts have continually and consistently rules that pur-t protection of the public hesith and safety is one of the acknowled 251 N.Y. s. unosesofthepolicepoweroftheSTATE(Adlerv.Deegandd 478, 373 N.Y.5.2d . Innkers Community Degelopment Agency v. Frorris, 37 N.Y ' 213). . (c). THE EXERCISE _ Who may exorcise these police powera? Does a governmental sub-division such as a county or town have an inherent r18ht to exercise these powerst Does a corporate entity such as LILCO have an inherent right to' exercise these police powers? ' The aseeptance of ths ardinsi rule, that the police power is nn inherent pero ative of the ETATE, can only lead to the conclusion that this he exercised bv the STATE or by governmental subdivisions In fact, power can on1upon whom the State constitution or Statedlaws h confer l such pow trunicipal corporations, who are creatures of state tow an w ose so e purpose is to perform governmental functions, have no inherent aut to exercise police powers. the polica power which the State Constitution or the 5tste 1,e islature con-fers upon them (Rochester _v. Public Service comission.192 eff'd.301 M se. N 33,801: 83 N.Y.8.2d' 436, aff'6. U A.D.172 .59 N.Y.5 3d Die),N.Y.8.2d off;Y, d. le ex rel Bikind v. Rosenblum, 'lle Hiso. 916, 54 , . E D. 839, 36 N.Y.8 2'8 326). , ' POLICE POWER = POLICE POWER .- . A brief study of the PLAN, as outlined by this court, indicates l, the basic activities LILCO intends to perform in the event of a radiologica , accident at Shoreham.' .
- - so .
mm. _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ - _ _ - . ______m _ _ _ r. _ _ _ _
i .- . 1 l
. l It intemte to declare an emergency and advise citizens of the l steps they should take to protect themselves. LILCO intends to manage '
a major, full-segle evacuation of a 160 squera mile araa. It intende to l
- slose public highways, re-route traffic and direct the flow of traffic. l The utility intends to decide upon and oversee steps to secure public health within a fifty mile radius of the nucleaf facility. LILCO intends
- Lo oversee evacuation centers for more than 100,000 people. It intends to decide when and in what fashion cititens may return to their homes.
In previously contaminated areas. , h1LCO maintains. that these actione do not involve governmental functions and that its proposed " management" of the evoeustion of the residenta of Suffolk County would not involve an exercise of the STATR's police'pnwer. What is the basis of I.!!.00's ' assertion? . Two reasons are advanced by LILCO for its stanea. First, LILCO does not propone to use force or the threat of force to compel obedience to its recommendations. Second, the esse 6es of the RTATR's police power nSe in pro-is regulation hibitud and the activity. LILCOabilityis to incareerste* merely planningpersons who en!nn for and respond to a radio-logical emergency in carrying out the functions in the PLAN and not regu-loting an cmorgency response. . The position taken by LILCO is untenable. The fact that LILCO will not issue traffic tickets of arrest someone is of little si$nificance. The exorcise of governmental functions does not necessarily raguare the .. imposition of bonalties as indicated by the fo of Demnden Shores. In . v. Incorporated Villan.11owing innguage e'"of Grev. wood Lake, in the case 68 M sv.7.0 343, 323 . 5.2a 937 at page 900: ,
"The term " police power" hav orten been defined se that .
power vested in the I,orislature to make. ordain and establish all manner of wholesome and reasonable lawn. statutes and ordinances, with penalties or without, not repugnant be for the goodto the andConstitutionf as they welfare o the shall jud eand er.m:.onwenith,5 to of subject 6 of the same. Whatever affeep the peace, good order, morals and health of the community comen within ' its scope." - , Furthermore, the bold statement that the PLAN is devoid of any l coercion is incorruet. Does turning a twe-way atteet into a one way street leave motorists free to drive 'as and where they wish? Likewise, does . parking LILCO vehicles in traffie lanes on the Lena Island Expressway in t uritical locations afford motorists a freedom of eKoicef Is a motorist thus compelled to travel in actofdance with the route set out in the PLANT . . Does LILCO REATLY believe that its dociaration of an emergency and evacuation on the emergency broadcast channel is any less corpulsive be:ause the directive will not be enforced by a threat of incarcerationf ., t LILCC's reguistion theory is likewise without merit. It claims that its own actions do not " regulate emergency responsas" but rather consist of " planning" f6r and " responding" to a radiological emergency.
,1
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. 1.1Lt:0 In "pinnninn" for a ymlintonioni centnenew wun1,1 I n ,. f r..,. i o p .
performing functions that are governmental in natura. In "rosponalinn" to a radiological emergency, the utility would undertake to perform acti. vities that are reserved to the 8TATR and its politient subdivisions. ,
- In fact the Courts of the State have recop.nized that the func-i tinna LILCO intends to perform fall within the STATE's historic police power. Seas . ca._ Yonkers Community Develoomant .Araney v. Moxyj'a. 37 N.Y.2d
.e_ pp. 11s mis s ed . 40 1/"'s . 1010 ~TI97 5) 478, (motters 373concerning W?r.5.3d Alathe(1973), publie Toolth, saioty and welfare are within the i Srnte's polies power): Royce v. Analean.159 Mise. 236,157 N.Y.S. 692 (1936) (abatement of ovbne amargenetos is within State's police power).
Puople v. Aielmsver, 54 Hise.2d 466, 468-69, 282 N.Y.5.2d 797 (1967) ("It has long been recognised that the power to regulate and control the use of pubite roads and highways is primarily the exclusive prorogative of the 8 totes."): Tornado Industries, Inc. v. Town. Board of Oyster Bay,
~
187 N.Y.5.2d 794 (u3sy (contt0For traffte is a matter within the . polien powor): City of Reies v. Water Pollution Control noned, 6 App.Div.22 340, 177 N.Y.s.2d 47 (u 3s) affd? 3 N.Y. 2d 164,153 N.Y.5.2d 5s4 (1959) ublic power) See, generally.
.(control of water pollution,is N.Y. Const. Art.1. sec. 6. notes 681-009 withIn the p(McKinney)).
No omoune of samantics can change the true'inennine of the activities which 1.II.C0 proposes to perform in the ovent of a vndinin5ical aceiticut at Shornham. No amount of ink can cover up or blot out the fact that 1.If.CO's " intended functions" are inborontly r,nvernmental in naturc , mut fall clocrly within the ambit of the STATK's police power. , THE_ pgtit0[ TION QF FOLict? I'0wisRM nonn 1.11.00 have any statutory authority to exorcha thu runction, vnnt.ained in the PLAN 7 How are the WTATE's police pouern alvlunotealt linvc , siny of thunc powers boon dulegated to LILC0Y , (a) T_0 LOCAL COVERDIENTA , The COUNTY TOWN and other local governmental subdivisions havu been delegated "noarly the full mosaura of the 8 TATE's polico power hy the sento Constitution and various State statutos" (1toetxer v. Countv or E.JJr Article 9 .Section 2 of tha sew York Kente 497g. Supp . 1207) .nutitution is the primary source fo,r the cuthority nf leen1 govern en exercise the police power. Soetion 10.la(12).of tho Municipal Hama Ru)n Law expressly delegates police power to T.overTimentn! unita by. con-forrinr. authority upon them to " provide for the well-being of parsons ny property theroin." Thus, these constitutional and statutory provisiana in of themselves, authorise the COUNTY and TOWN to exercise the WTATis's police power. , l Ib3 TO PRIVATE CORPORATIONS , l The Court h'as been unable to find any provisions in tho 8 tate Canatitution or State statutes which authorize LILC0 or any other private cor.poration to ex6rcise any portion of the STATE's police power. In fact, any attempted dologation of police power to L1LC0 would mount .
, th en unlawful deleg'ation of governmental powers (see 2.0 N.Y. Jur. 2d,
' Constitutional Law 5183). A governmental unit can not baramin' away its police power to a private party or orpentration (Beacon A r_scuse -
tesociaitg v. City of Byracus, 560 F. Sup,p. 188). Covernmental runctions i and respo,nsibilities cannot b,y,e surrendered by contract where police power, public safety and welfare are involved (Patrc1 men's Bonevoloat Asa'n.
- v. City of_ Neb York. 59 Mise.2d 556, 299 N.Y.L 3d 956). ,
' ' ~ '
~
-- 00Rp0R' ATE pnWERR LILCO is nothing more th'an a creature of the STATE. Corporations "
unlike natural persons, possess only those pcwore that have been conferred
- l upon them by the Rolationships, 134s,0). tete of their incorporation Corporate powers do not.(14 N.Y.
exist Jur. 2d merely " Business bacsuse they are not expressly prohibited. A valid basis must he' demonstrated for the existence of a claimed contested power under the laws of the state under which the corporation has been created. (See 6 Fletche_r,_ Cyclopedia of krloratictn_s I2I 76 _- 24,86. Rev. P_e_te. ed. 137y). t 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 Corecration Law. What express powers does LILCO have as a direct result of these statute 6'l . Soction 11 of the Transportation Corporation 1.aw Arants electric . norporations and gas and electric corporations the power to senerate, ac-quiro and supply electricity for heat or power to light public streets. . placca and buildings. In addition, such corpora.tions are empowered to . acquire and dispose hf necessary mcchines and to trannmit and distribute ulactricity through suitable wires and other conductors. Such corpora-ti.ons can use streets, public parks and public places to place their poles, ' pipes and fixtures, but only with the consent of the municipal authori- ' ties. Those entporations also have power to seguire real estate. for corporate purposes, but only in the manner prescribed by the eminent domain procedure law. Thus, even in areas necessary to the conduct of , their businesses, utilities can act only under express legis1stive grants of power and with the consent of municipalities. . Section 202 of the Business Corporation Law sets forth sixteen meneral powrs which are common to all corporations incorporated pursuant . to the lawn of the State of New York. For uxample, the power to sua and ; be sued, to hold property and to make contracts. .
~
Thus none of these express powere bestow upon LItC0 the authorisy ., to in plament its PLAN. Nevertheless, LILCO is undaunted by its inability j to point to d specifie grant of power in either'the Transportation Corpora-tions Law or the Business corporation Law which would lend credence to its claimed authorit Instead, LILCO seeks to rely on
" implied powers"ywhich to implement the PLAN.
existed at cetnenon law and is now codified in Sme-tion 202 (a)(16) of the Business Corporation Law. The letter prusides
- that a entporation has " ell powers necessary or convenient to effect its
, corporate purposes." LILCO states that one of its corporate purposes is l to crease and sell electricity and thus it has the power to build or oper- ,are a power plant such as 8horeham. The operation of Shoreham, according to . l - 1.1 }
i LILCO, is senditioned upcn tho existenco of en hdaquate affsita emergency pltn. Thus LILCO reasons that it has the implied power to implement the PLAN sn furthorance of (to corporate powers. ' LILCO's view nf the scope of implied corporata power has no limit. Furthermore, it has no su forth as sup porting its theories.pportFor in the example, games itwhich cites LILCO has por the following i fcur cases which holds
~. 1. That a corporation has implied power to make charitable contributions for the benefit of the corooration and its empicyees (Steinway v. steinway & Sona.,17 Misc. 43, 40 N.Y.5. 718).
. 2 That a corporation operating a home. for persons 60 years or older has the implied power to admit a 59 year old (In Re. He_f ._s f tecate, 166 Hisc. 931, 3 N.Y.s.2d 134, aff'd. 255 A.D.1007, 5 N.Y.5.36 374). , ,
- 3. That a construction company may also perform related trofessional 2 A.D.2d 997, engineering 234 N.Y.5.2d services (John 5.
924, aff'd.16 Usidbillino N.Y.24 In_e. 773, ata v. Gottfried, N.Y.S.2s 498). ,
- 4. That a corporation may make payments under a "non-compete agreement provi(ed such osymente do not constitute a prohibited restraint of trade ,Leslie ( v. Lorillsed. 110 N.Y. 519).
~
This* Court can not fathom how LILCO expects to su li ovacuationofover10,000 people uf authority to declare an emer on the basis &encyandassumeresponsibi ty for the of these cited cases. IJkowise, the Court is at a loss for 11LCO's reliance upon a 1901 case, City Trust Refe Donosit enlduretv Co._ of Phtisdelphig v. Wilean Manufacturing Co. 35 A.D. 271. 95 N,Y.s.1004 'for the proposition that it is difficult to say in any within the powers of a corporation."given case that Ironically, theaCity business Trust act case is did not not even involve New York Beate Corporate Law. Defendant, a West Virginia corporation, sought to avoid an indemnity agreement provieuely aiven. - It argued that ite set was "ulta vires" under the laws of West Virginia, but it failed to offer any avidence as to the West Virginia Laws. The ecurt held that, absent such
- evidence, defendant could not avoid its
- contractual obligation.
Does LILCO sincerely believe that a judge writing a decision in 1901 would have considered that the direction of traffic or the declara-tien of a public amergency eoestituted a " business act" as the term was employed in,the City Trust essef , LILCO is mistaken in its view that the power to undertaka actions necessary or convenient to effect its corporate purpsses has no bounds. . A corporation lacks power express or implied to engese in activities whicharecontrarytopublicpolicy(sta': eof,NewYorkv. Abortion g ermation Amency. Inc., 37 A.D,2d 142 330 N.Y.26 927 TheimplemnrationofthePLANa.at!'s.30N.Y.2d r/V. 339 N.Y.B.2d L7a). mounts to an , h
- 14 .
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exerciso sf the police pc.or. The latter can only to exercisod by the-1 STATE und upon proper ~ delegation the municipalitles. j powur by LITco would accordingly, violate the pubite policy The exercise of such of this state. 1 ' j THE RMP.CVr1 LLAW ARTICLE 23 , LILc0 elaims that the activity which it proposee to take under l its Plan This Ipwisisdirectly entitled " supported by New York state Executive Law, Artic1r 28. paredness" and is found State and Local20Natural in Sections - 29 ofandtheHan-Made Executive Disaster Law. Pre- . What doesWhat was the intention of the Legislature in enacting this law'l i ) the law provide. ' i 4 powurs hold Article by the25 of the Executive Executive Branch ofLaw State in'volves the distribut' ion of Government. It clearly I expresses the intention of the Legislature to confer the ETATC's power to i! pinn for and to respond to disaster situatione sol'ely upon State and local government. It eatsbitehes a framework for state and local co-operation In planningnuclear tweluding sod preparing accidenta. for emergency responses to all kinds of disastera, the Disaster Prepare Thus, this Statute creates a state agency, I cmcrgency responses.dnese Commission (DPC) to coordinate state and i plan for disasters and delegates authority to STATR and local officials to offectuate those functione. . The Court no matter how many times it has read and re-read Articio 2D, could no,t find any authorization for LILCO, express or implied, to' exercise the ETATE's police powers in emergency situations. Wat is the it to bauts implement of LILCO's its PLANetsim 1 that Attiele'25 of the Executive Law author'ites LILC0 rests its claim of authority upon two sub-paragraphs section 201(a) and section 20-1(e) sontained in the statement of polley that constitutes the preface to Article 25. Section 20 of Article 25 of the Executive Law providea se (#110 wet - -
"$20. Natural and man made disasters policy, definitions
- 1. It shall be the policy of the state that: '
- a. local r continue th,overnment and amargency service organisationseir essential role .
In times of disaster and that the state provide appro. . printo aupportive ser, vices to the extent necessaryi .
- b. Incal chief executives take an active and personal role in the development and implementation of disaster prepared-nods programs and be vested with authority shd responsibil-ity in order to insure the success of such programs: .
- o. state and local natural disaster and emerSency response functions be coordinated in order.to bring the fullest pro-taction and benefit to the peoples .
- t
. i
- d. state revovfcos be organised cnd prepared for immed-late effective response to disasters which are beyond .
the capability of local governments and emergency service organtuation,as and '
- e. state and local plans, organisations1 arrangements and response espability required to execute the provis[ons of this article shall be the most off,ctive that current ~
pircumstances and existing resources allow.
~
1. As used in the following this article the fo110 win 5 terms shall have meanings: a.
" disaster" means cocurrence or imminant threat of wide spread or severa damage, injury or loss of life or property resulting from any natural or ma,n-made c' auses, including, but not-Iimited high watertolandsli fire,deflood, earth wind, storm wave action, nado , . volca,nic activity epidemic, mudslide, quake, hurricana air contamination, blight, drought, infestation. explosion, radiologieni accident or water contam-inntion.
- b. " state disaster emergency" means a period boninning with a declaration by the sovernor that a disaster exists' and enda inn upon the termination thereof.
. c. " municipality" means a public corporation as defined in subdivision one of section sixty-six of the general construc .
tion law and a special district as defined in subdivision - aiuteen of section one hundred two of the real property tax law.
- d. "commissinn" means the disaster preparedness commission created pursuant to section twency-one of this article, e, "emergenc veta agency, y services organization" means a public or pri-orga for the purpose of providing fire, medical, ambulance, rescue food or other services directed tywsrd relievin5 housing,ffering, injury or loss of life or demoge to property human su -
as a result 15 of ant emergency,
,,1 including non-profit and governa
.. e aeeat ee I sa s u s i s s Id .. :. -- - - - -- t 11 agencies.
. f. "shief executive" means: ,
(1) a county executive or manager of a countys (2) in a county not having e county executive or manager, the chairman or .other presiding officer of the county le (3)gislative bodys a mayor of a cit v111sgo except where a city or vil-la (4)ge s. has a manager,y a town or.it shall esa,n such managers and supervisor.of except where a' town has a . manager, it shall mean suc,h manager. e 16 - -a w m. . ._. __ w-- - = , - -.----w_ m---.-,-w.---.,..-,w-w,-e-..ww... _ __.,,-,-.,..,-e-.w -ww,g_e..--------..---e--e.--.e---.w-e---er
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This Section states general STATE policies including the proposi-j ' tien that " local government ans emergunti service organisations continue ! their essential role as the first line of defense in times of disaster" and . that the STATE nhall provide appropriate supportive services to the extant necesuury. This policy statement, contrary to LILCO's assertions, does not exp11citly or implicitly authorite private corporations to exercise ! police powers in the event of a nuclear accident. - - 1 . Bection 201(a) acknowledges the role of privete groups called j relievina 1
"emergenc~y serviceinjury organisations" iservices directed toward tn providin!ife' or dam human suffering, or less of l such as fire, medical, ambulance, food, housing and similar rescure ser-I visco. . :
. e These privata shergency service organiutions have not.been dele-asted the PLAN in any waylates. shape, contemp Themanner or form ifto1't LegisIsture, theIntended movernmental functions to delegate tha which l broad-scale powers LILCO claims, wpuld have done so in clear explicit j lanausse in the substantive portions of Article 25 which presently only j eenTer these powers upon state and local governments. .
1 .
. CONd.UMTON [.
Thune declaratory actions which arise out of LILCO's attempt to secure approval of its utility sponsored PT.AN clearly present a justl. - ciable controversy and the complaints do state a cause of estinn. The limited issue of LILCO's authority to itnplement its PLAN under the laus , of the Stato of New York does not involve nay disputed quantions of fact. . L11.00, as previously mentioned, intends to execute the Pl.AN ' volely with its own employees and intenda to carry out activities which , are inherently governmental in nature . These powers have been solely con-ferred upon the STATE and its politioni subdivlsions. LILCO a private corporation, is a creature of state law and only has those powe,rs which the BTATE hev conferred upon it. These powers, express.or implied, do not, include the right to exercise governmental functions. - 7 ; Thure is a paradog, which is present in this controversy and . , involves the ph170 sophy of the creation of our movernment. In order to recognise this persdox, one must examine the phIlsophy of our founding . fathers in creating our government. The political ideas behind the Declaration of Independence and the Con *stitution were not the sole inventions of the founding fathers. Franklin, Jefferson, Madison and other colonini leaders were learned and widely read men, steeped in the ideas of the English political phthnophers. The most influential of these philosophers upon the founding fathers was John Locke (See Clinton Rossiter, "1787, The Grand Convention", lHacMillen. 19661), . 1.ocke, an avid opponent of the divine right theory of novernment, put forth his ideas about' the creation, purpose and powers of government in his " Treatise of Civil Covernment" written in 1659. His ideas, for the purpose or this discussion, may na sumarized as follows,
- -- " U ." .
1 *- , 1. Indiv1 wale eriginally existed in a esut.u of un6ury.
, Edrh individual hed rha right to do whatsoaver was necupaery for hie' '
pifeservation and the right to paish those who sommitted crimes against i, the inws of nature. 1.olke called these riahru the " supreme powcr". t i 2. The weak were at the herey of the strong in the state of 1 nature. Each individual because of the situation, entored into a "recini contreet" with ev,ery other individus1 and this social contract respised.in the creati,on of a eiv'il society or community. The "supremo poWor"-is eurtendered by each individual to the community. I ' '1 3. The communit i government, which is sesompfished by means of a trust.iscreatedforthepurposeofe This means tha : ! sovernment enig enjoys a "ftduciary power". Thus the onnsnunity does not l autrender the supreme power but merely entruste.it to government.
.4. The powers of government are limited. Covernment is soobunt i oble to the nonenunity. The community if government breaches its trust.
had a right to "appest to the heavent". This 1stter phrase meant the right Of revolution (our founding fathers substituted the right to change ' p,0vctnmnnts by means of a free election for Lncke's right of revolution). , What is the paradox? i i The STATE and COUNTY would be branehing their " fiduciary" duty
. tu protect the welfaro of its citizens if thuy permitted a private corpora.
tion to usurp the police powers which woro ent, rusted solely to them by the community. LILCO has to realise that this is a nevernment of law and . not of men ne privato corporations (see John Adnins " Cong.jturinn, buelnention of Riuhts. ART XXX< 1121) .,Depf t Massa chusetta On the other hand, the STATE and COUNTY maintain triat they c.karelsed their police powers in order to protect the community in their determination not to adoot or implement an boununo of the "inipossibliity" to have a "y emurgency plan forinShoreham safe evacustion" esse of a nuclear accident. LILC0 asserts that this position is nothina more than' a " sham" and amounts to a breach of the STATE's and COUNTY's duty to pro-tect.the citizens in case of a nuclear accident at Shoreham as envisioned by Article 25 of the Executive Law. LILCO la in effect remin~ din overnments that "Non est Princeps super Logna,g the STA'fE and CCUNTY g(The Prince is not above the Laws, but the Laws abovesed L Supra Principem" the Prince. Pliny the Younger. "Panegyris of Trajan" Sec. 65100 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 ar.d COUNTY. LILCO can test this matter in another tribunal by cotirnoncing en action in the nat'ure of a writ of mandamus or in the aren.
of public opinion which manifests itself by the results of an election.
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Sottio judgment on notice.
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Eh"I, SUPREME COURT OF THE STATE OF NEW YORK . ' r~ . ' -I ^' ~" '~ ' # ' COUNTY OF SUFFOLK ~-
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I t MARIO M. CUOMO, )
)
Plaintiff, ) !
) !
-against- ) '
o ) < LONG ISLAND LIGHTING COMPANY, )
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Defendant. )
) Consolidated j COUNTY OF SUFFOLK, ) Index No. 84-4615
)
Plaintiff, )
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)
LONG ISLAND LIGHTING COMPANY, ) e ~
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Defendant. )
)
TOWN OF SOUTHAMPTON, ) PARTIAL
) DECLARATORY JUDG:-:E!!T Plaintiff, ) .., ,,
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-against ) L'.OU-!{Of,/f'a^'i' py.c b, LONG ISLAND LIGHTING COMPANY, [J ..Y-- ,
Defendant. )
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k s w'nod Plaintiff, Mario M. Cuorr.o , having filed a Complaint for
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g Declaratory Judgment on March 8, 1984 in the Supreme Court for t,he State of New York, Albany County, seeking a declaration (i) Y that Long Island Lighting Company's ("LILCO") implementation of
, an offsite emergency response plan (the " Transition Plan") for S.
p its Shoreham Nuclear Power Station would be in violation of New ,
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limplementtheTransitionPlan; and - o l I Plaintiff, County of Soffolk, having filed a Complaint on March 8,'1984 in 'the. Supreme Court of New York, Suffolk , Count'y, seeking a declaration that LILCO's implementation of . the Transition Plan is unlawful and illegal under the Constitution and laws of New York State; and LILCO having moved to dismiss both actions on April 6, i 1984; and l I LILCO having removed both actions to the U.S. District i e Court for the Eastern District of New York; and Plaintiffs thereafter having moved to remand both , actions to the New York Supreme Court; and - , j By Memorandum and Order dated June 15, 1984, the U.S. l 1
!! District Court for the Eastern District of New York (Altimari, J.) having granted Plaintiffs' Motion to Remand; and
! Plaintiff, Town of Southampton, having filed a Verified i
l Complaint on May 16, 1984 which sought a declaration (i) that l 1 . rl, . I. I f R
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- E ', LILCO's implementation of its Transition Plan would be unlawful 4 and illegal under the Constitution and laws of the State of New ,
. York and (ii) that LILCO lacked the legal authority to under-
'take such action; and
- Defendant, LILCO, having moved to dismiss Southampton's Complaint by Notice of Motion dated June 29, 1984; and i
Following remand of the Cuomo and County actions to this Court and upon stipulation of all parties, the actions
' filed by Plaintiffs Cuomo, County of Suffolk and Town of of Southampton having been consolidated in the Supreme Court ,
f e the State of New York, Suffolk County, as Consolidated Index No. 84-4615; and LILCO having renewed its Motion to Dismiss Plaintiffs' Ifactions'on. August 13, 1984 pursuant to.Section 3211(a)(2) and (7) of the CPLR on the ground that (i) the Court lacked subject
~ '
l .: matter jurisdictiqn because the actions did not present a l i l
'ij justiciable controversy and (ii) the Complaints failed to state
,a cause of action because New York law did not prohibit LILCO 3 from performing the functions set forth in the TranM eion P1'an; 3
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Plaintiffs having filed a Crods Motion pursuant to i Sections 2215 and 3211(c) of the CPLR requesting that the Court r ,
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(i) treat LILCO's pending Motion to Dismiss as a motion for Summary Judgment and (ii) grant summary judgment in favor of Plaintiffs; and l All parties having entered into e Stipulation to make a i part of the record in this case LILCO's Transition Plan i (Revision 3) consisting of: (i) a volume entitled "Shoreham Nuclear Power Station -- Local Offsite Radiological Emergency Response Plan"; (ii) a two-volume set designated "Offsite Preparedness Implementing Procedures" and (iii) a volume entitled " Appendix A -- Evacuation Plan"; and
=
Plaintiffs having submitted the Affidavits of Martin ! Bradley Ashare, Esq. dated September, 1984, Gregory C. Minor
- dated September 5, 1984, and Fabian G. Palomino, Esq. dated l l l September 12, 1984 in support of their Cross Motion for Summary Judgment; LILCO having submitt6d the Affidavit of Matthew C.
,i Cordaro dated August 13, 1984 in support of its Motion to ~
il Dismiss; and all parties have agreed in open court that (i) for purposes of addressing the LILCO Motion to Dismiss based on the j lack of a justiciable controversy, the court could, if I
!;necessary, look.to the pleadings and affidavits filed by the
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parties as to whether the State of New York and Suffolk County would, in fact,
' respond to a radiological emergency at
,Shoreham, and (ii) for pur~ poses of resolving any material issue of fact which might exist as to whether LILCO, in implementing its proposed Transition Plan, would be undertaking acti ons which might be characterized as the exercise of compulsion and l
therefore the exercise of impermissible governmental police y power, l! the Court could look to the text of the Plan itself and ' the affidavits submitted by the parties, wise, and (iii) that other-there were no material facts in dispute with regard to i issues presented by LILCO's Motion to Dismiss; and A pretrial conference having been held on September 18 s , 1985 for the purpose of determining which issues should be , addressed in further briefs., with Plaintiffs arguing that all '
, issues, including questions of federal' preemption, should be briefed and resolved simultaneously, and LILCO arguing that LILCO's Motion to Dismiss based on (i) lack of a justiciable
)
controversy and (ii) LILCO's abthority under state law to carry , i out actions contemplated under the Transition Plan should be
,!; resolved prior to consideration of any other issues raised, fincludingfederalpreemption;and .
i I: Y - l By Order dated October 2, 1984, the Court having i;
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y separately and would first address the justiciable controversy I
' issue and the issue of LI;?O's legal authority under State law to carry out its Transition Plan; and Pursuant to that Order, all parties having submitted extensive Briefs, Memoranda and supporting exhibits and having had a full opportunity to be heard on the issue of LILCO's d e legal authority under State law to carry out its Plan; and T
This Court having heard oral argument of the parties on 1 January 15, 1985; and e All parties having had a full opportunity to be heard, '
} the Court, I upon consideration of the,LILCO Transition Plan and
; the pleadings, stipulations, affidavits, briefs and arguments i
joftheparties, having rendered a decision on February 20, 1985 ll denying Defendant's pending Motion to Dismiss and granting par i} - 1 tial summary judgment ,in favor'of Plaintiffs and against Defen- ---- dant in each of the consolidated cases, and direc' ting settle t ment of judgment; t II L NOW,
.!: on motion of Martin Bradley Ashare, County l' Attorney, County of.Suffolk, and Kirkpatrick & Lockhart
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; Attorneys for Plaintiff, Suffolk County, Fabian G. Palomino, i
Special Counsel to the Governor of New York State, and Robert Abrams, Attorney General of the State of New York, Attorneys for Plaintiff, Mario M. Cuomo, and Twomey, Latham and Shea, , Attorneys for Plaintiff, Town of Southampton, and over the
. i objection of Hunton & Williams, Attorneys for LILCO, to the-entry of this Partial Declaratory Jud' ment, g such objection i
being duly noted, it is N
'l ORDERED, ADJUDGED AND DECREED;
! 1. The Court declares that a justiciable controversy l l
- lexistsastowhetherLILCOhaslegalauthorityunderstatelaw to execute the Transition Plan.
l'
- 2. The Court declares that by reason of operation of
. Executive Law Sections 22(3)(b) and (c), 23(7)(b) and (c),
l il 28'(1), 28(2)(a) anc (b), 28-A; Penal Law Section 195.05; Public Health Law Sections-206(1)(k), 201(1)(r), 201(1)(1), 1110, , j b
;l 206(1)(a); Vehicle and Traffic Law Sections 1110, 1114 1602; .
it and Agricul-f,Section30oftheTransportationCorporationsLaw; .
,i ture and Markets Law Gectionu 16(24), 16(27), (16(35), 71-L, r 2n
]202-B, and by further reason of the police power inhen nt.
tlthestateandlocalgovernmentpursuanttoNewYorkState u
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'?. I Constitution Articles III r.d IX; Municipal Home Rule Law (* Section 10; and Executive ' Law Article 2-B, the contested acts, enumerated more fully in ,the Complaints, contemplated by LILCO in implementing its Transition Plan'are acts which are inher-ently governmental in nature and are embraced by the State's police power, and are therefore prohibited.
- 3. The Court declares that the New York State '
Constitution, Article IX, Section 2, and the New York Municipal Home Rule Law, Section 10.la(12) delegate the State's police power to local governments, including specifically the County l i and Town. e
- 4. The Court declares that New York State law, I
including specifically Executive Law, Article II-B, does not i delegate the State's police power to LILCO empowering LILCO to '
- l l 1 implement the Transition Plan.
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- 5. The Court declares that LILCO, as a corporation, .
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! possesses only those powers tiat have been conferred upon 1.t by 1,the law of the state of its incorporation. The New York State Transportation Corporation Law and the New York Stato Business i
I Corporation Law do not expressly'or impliedly authorine or em-power LILCO to exercise governmental powers in implementing the
! Transition Plan. .
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o 6. Defendant's Motion to Dismiss Plaintiffs' Complaints pursuant to CPLR '3211(a)(2) DENIED; and (7) is hereby
- 7. .
Plaintiffs' Cross Motion to convert Defendant's . Motion to Dismiss to a Motion for Partial Summarygment Jud is hereby GRANTED: { l i 8. The Court declares that thia judgment is a partial declaratory judgment that does not resolve all the i this litigation. ssues in ; Judgment is expressly reserved as to any de-fenses that may be raised, including federal preemption. \
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(/fsd /f Defendant shall within twenty (20) days?cf A= vi14d.*N i h ! '~^ y eMway of this Partial Declaratory Judgment pn:rr* =ny V,e(/C.
/ f.S ANS Wut i c"ogtil:;ry ccunt+r.claimsg 4 7~ ra,1.gr or renew -any- de-fenses th
?y hrs-hAhe//e it - at gpending Complaints, inchding the issue- of--
federal p&==mytien;-and sha'lM-le- its Memorandum of Law n i
! supp e thereef, -
f and Pl =4"tiffe shatl--file their Ruply Brief- in-j gesponse4erato-w!,. thin -twenty (20) days of service of De fen-h i i darit M-hm
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- Justice of the Supreme Court Suffolk County ,
Judgment entered this Sf " day of % W,1, , 1985 \
. MAR 2 5 1333 b.\ ',H . ('t - , nv i i,.
' Clerk C ju'if.'!e A. Kir,;;;[3 4 .' o^
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Ubi UNITED STATES OF AMERICA NJV21 p4:20 NUCLEAR REGULATORY COMMISSION Before the Commission k'C MCO ' Ilgt g Qgg In the Matter of )
) Docket No. 50-322-OL-3 LONG ISLAND LIGHTING ~ COMPANY ) (Emergency Planning
) Proceeding)
(Shoreham Nuclear Power Station, ) l Unit 1) ) CERTIFICATE OF SERVICE I hereby certify that copies of INTERVENORS' ANSWER OPPOSING LILCO'S PETITION FOR REVIEW OF ALAB-818 dated November 18, 1985, have been served on the following this 18th day of November, 1985 by U.S. mail, first class. Alan S. Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board, U.S. Nucle?r Reg. Com. Board, U.S. Nuclear Reg. Com. 4350 East-West Highw;y . 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Gary J. Edles Morton M. Margulies, Chairman Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board,-U.S. Nuclear Reg. Com. U.S. Nuclear Regulatory Com. 4350_ East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Edwin J. Reis, Esq. Dr. Jerry R. Kline Bernard M. Bordenick, Esq. Administrative Judge
-U.S. Nuclear Regulatory Com. Atomic Safety and Licensing Board 7735 Old Georgetown Road U.S. Nuclear Regulatory Com.
Bethesda, MD 20814 Washington, DC 20555 W.. Taylor Reveley, III, Esq. Mr. William Rogers Huntqn & Williams Clerk, Suffolk County Legislature P.O. Box 1535 Suffolk County Legislature Office 707 East Main Street Building Richmond, VA 23212 Veterans Memorial Highway Hauppauge, NY 11788 Mr. Frederick J. Shon Donna D. Duer, Esq. Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Com.
'U.S. Nuclear Regulatory Com. Washington, DC 20555 Washington, DC 20555 L
Anthony F. Earley, Esq. Jay Dunkleberger, Esq. General Counsel New York State Energy Office Long Island Lighting Company Agency Building 2 175 E. Old Country Road Empire State Plaza Hicksville, NY 11801 Albany, New York 12223 Spence W. Perry, Esq. Stephen B. Latham, Esq. Associate General Counsel Twomey, Latham & Shea Federal Emergency Management P. O. Box 398 Agency 33 West Second Street 500 C Street, S.W., Room 840 Riverhead, New York 11901 Washington, DC 20472 Mr. Lawrence F. Britt Ms. Nora Bredes Long Island Lighting Company Executive Director Shoreham Nuclear Power Station Shoreham Opponents coalition P.O. Box 618 195 East Main Street North Country Road Smithtown, New York 11787 Wading River, New York 11792 MHB Technical Associates Joel Blau, Esq. 1723 Hamilton Avenue New York Public Service Com. Suite K The Gov. Nelson A. Rockefeller San Jose, California 95125 Building Empire State Plaza Hon. Peter F. Cohalan Albany, New York 12223 Suffolk County Executive H. Lee Dennison Building Martin Bradley Ashare, Esq. Veterans Memorial Highway i Suffolk County Attorney Hauppauge, New York 11788 l H. Lee Dennison Building l Veterans Memorial Highway
- Hauppauge, New York 11708 Fabian G. Palomino, Esq.
. Special Counsel to the Governor l Atomic Safety and Licensing Executive Chamber l Board Panel Two World Trade Center l U.S. Nuclear Regulatory Com. 57th Floor l Washington, DC 20555 New York, New York 10047 ' Docketing and Service Section Atomic Safety and Licensing Office of the Secretary Appeal Board U.S. Nuclear Regulatory Com. U.S. Nuclear Regulatory Com. 1717 H Street N.W. Washington, DC 20555 Washington, DC 20555 L_
Dr. Monroe Schneider Jonathan D. Feinberg, Esq. North Shore Committee Staff Counsel P. O. Box 231 New York State Public ' Wading River, NY 11792 Service commission 3 Rockefeller Plaza Albany, New York 12223 Mr. Stuart Diamond Business / Financial Stewart M. Glass, Esq. NEW YORK TIMES Regional Counsel 229 W. 43rd Street Federal Emergency Management New York, New York 10036 Agency 26 Federal Plaza, Room 1349 New York, New York 10278 Mary M. Gundrum, Esq. Nunzio J. Palladino, Chairman New York State Department U.S. Nuclear Regulatory Com. of Law Room 1114 2 World Trade Center, 1717 H Street, N.W.
- Room 4614 Washington, DC 20555 New York, New York 10047 Commissioner Lando W. Zech, Jr. Commissioner James K. Asselstine U.S. Nuclear Regulatory Com. U.S. Nuclear Regulatory Com.
Room 1113 Room 1136 1717 H Street, N.W. 1717 H Street, N.W. Washington, DC 20555 Washington, DC 20555 Herzal Plaine, Esq. Commissioner Frederick M. Bernthal U.S. Nuclear Regulatory Com. U.S. Nuclear Regulatory Com. 10th Floor Room 1156 1717 H Street, N.W. 1717 H Street, N.W. Washington, DC 20555 Washington, DC 20555 Commissioner Thomas M. Roberts Herbert H. Brown, Esq. U.S. Nuclear Regulatory Com. Lawrence C. Lanpher, Esq. Room 1103 Karla J. Let..:he 1717 H Street, N.W. Kirkpatrick & Lockhart Washington, DC 20555 1900 M Street, N.W. Washington, DC 20036 David A. Brownlee KIRKPATRICK & LOCKHART 1500 Oliver Building i Pittsburgh, PA 15222 DATE: November 18, 1985
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