ML20140E292
| ML20140E292 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/30/1986 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Asselstine J, Palladino N, Roberts T NRC COMMISSION (OCM) |
| References | |
| CON-#186-900, CON-#186-969 OL, OL-3, NUDOCS 8602030219 | |
| Download: ML20140E292 (27) | |
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Palladino, Chairman
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Commissioner Thomas M.
Roberts
- o. <CT o.AL ~o so. T.e. 8 3 5 7 Commissioner James K. Asselstine Commissioner Frederick M.
Bernthal Comuissioner Lando W.
Zech, Jr.
Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1)
NRC Docket 50-322C L-
Dear Chairman Palladino and Commissioners:
On January 17, 1986, LILCO sert the Commission several docu-ments concerning a local law passed by the Suffolk County legisla-ture (Local Law 2-86) which has the potential to impact on the emergency planning exercise scheduled for February 13, 1986.
These documents included a copy of Local Law 2-86, documents filed by LILCO with the Clerk of the Suffolk County legislature to com-ply with that law, and a complaint filed by LILCO in the United States District Court for the Eastern District of New York seeking, among other relief, invalidation of Local Law 2-86.
Following LILCO's submission to the Suffolk County legisla-ture, the Clerk of the legislature sent LILCO a number of requests for additional information.
Those requests are Enclosure 1 hereto.
On January 28, 1986, LILCO submitted its response.
LILCO's reply is Enclosure 2 hereto.
In the litigation before the United States District Court for the Eastern District of New York, a motion for a preliminary in-junction is pending which, if granted, would enjoin Suffolk County from frustrating or otherwise interfering in the planned exercise of the Shoreham Plan.
A hearing is scheduled for next Tuesday, 8602030219 860130 PDR ADOCK 0500 c-G 1 S o 3.-
l H UNTON & WILLI AM s February 4, on that motion.
At a show cause hearing on January 27, the Suffolk County Attorney, Martin Bradley Ashare, Esq.,
stated that the criminal aspects of Local Law 2-86 would not be enforced during the 25-day period after the effective date of the law.
Sincerely yours, b
Donald P.
Irwin One of Counsel to Long Island Lighting Company
Enclosures:
1.
Request of the Suffolk County Legislature to the Long Island Lighting Company for Additional Information Under Local Law 2-86, January 21, 1986 2.
Long Island Lighting Company's Response to the Suffolk County Legislature's January 21, 1986 Request for Additional Information, January 28, 1986 cc w/ enclosures:
Alan S.
Rosenthal, Esq.
Gary J.
Edles, Esq.
Dr. Howard A.
Wilber Secretary of the Commission Bernard M.
Bordenick, Esq.
Spence W.
Perry, Esq.
Fabian G.
Palomino, Esq.
Mary Gundrum, Esq.
Stewart M.
Glass, Esq.
Stephen B.
Latham, Esq.
Jonathan D.
Feinberg, Esq.
Herbert H.
Brown, Esq.
Martin Bradley Ashare, Esq.
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k ENCLOSURE 1
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OFFICE OF THE COUNTY LEGISLATURE COUNTY OF SUFFOLK 4
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DEPuTv cLERn January 21, 1985 Anthony F. Earley, Jr.,
General Counsel Long Island Lighting Company 175 East Old Country Road Hicksville, New York 11801
Dear Mr. Earley:
The Suffolk County Legislature is in receipt of the Submittal of January 16, 1986, of the Long Island Lighting Company pursuant to Local Law 2-1986.
In accordance with Section 3(b) of said Local Law, set forth in the enclosure hereto is the additional information required by the Legislature for its review of LILC0's Submittal.
In accordance with Section 3(b), LILC0's response must be filed with the Clerk on or before January 28, 1986 Sincerely,
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William H. Rogers, Cl rk Suffolk County Legislature Enclosure
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cc: Members of the Suffolk County Legislature Martin B. Ashare, Esq.
COUNTY CENTER e
RIVERMEAD. NEW YORM i1901 m
(5 t 61548-3300 LEGISLATURE SuiLDING e
VETERANS MEheORIAL McGMwAY e
MAUPPAUGE. NEW YORx t 9 7se e
(516 360-4073 L
o January 21, 1986 Request of the Suffolk County Legislature to the Long Island Lighting Company for Additional Information Under Local Law 2-86 On January 16, 1986, the Long Island Lighting Company
("LILCO"), under cover letter of its General Counsel, Anthony F.
Earley, Jr., delivered to the Clerk of the Suffolk County Legislature a document entitled "Long Island Lighting Company's Description, Pursuant to Suffolk County Local Law 2-86, of Activities in February 13, 1986, Emergency Planning Exercise Sponsored by Federal Emergency Management Agency" (the
" Submittal").
Pursuant to Section 3(b) of Local Law 2-86, the following additional information is requested from LILCO.
1.
The Court in Cuomo v.
LILCO ruled that LILCO lacks authority to perform governmental functions.
The proposed February 13, 1986, exercise is designed to test or demonstrate the proficiency of LILCO's ability to perform such governmental functions.
What is the basis for LILCO's belief that it has legal authority to test its ability or to demonstrate its t
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proficiency to perform governmental functions?
Include in your answer citations to all laws, judicial cases, and/or other materials you deem relevant.
2.
The Submittal states that it "is being provided by LILCO
. with respect to
." various " groups or categories."
Submittal, p. 3 (emphasis added).
These groups or categories are described by LILCO as:
A.
LERO members; B.
Members and employees of all support, contractor and other organizations cooperating with LERO; C.
LILCO employees and members or employees of LILCO contractors who, while not participating in the exercise itself, have been involved in preparation for it; D.
Federal entities, officials and contractors either conducting, observing, grading, or participating in the exercise.
Submittal, p. 3.
(a)
Explain what is meant by the statement that the Submittal is made "with respect to" the various groups or categories.
(b)
Identify each of the " support, contractor, and other organizations" and each of the " Federal entities, officials, and contractors" with respect to which the Submittal was made. t
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3.
It is asserted that "[t]o the extent that the exercise may involve any conduct relating to ' functions' or ' roles' of Suffolk County personnel during an exercise, such conduct will involve only ' simulation.'
In this regard, the Shoreham exercise will be no different than those conducted at other nuclear power plants."
Submittal, p. 5.
(a)
Is LILCO aware of any FEMA-graded exercise at any other nuclear plant where State or local governmental " functions" were simulated by utility personnel or by any persons other than State or local government officials?
If so, please provide all details.
(b)
Is LILCO aware of any FEMA-graded exercise at any other nuclear plant where governmental " roles" were simulated "by such devices as messages and instructions from exercise controllers?"
If so, please provide all details.
(c)
With respect to each exercise identified in response to parts (a) and (b), state whether the governmental entities, whose functions or roles were simulated, participated in, approved, or objected to the exercise.
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(d)
The Submittal states that the simulation of Suffolk County roles can be accomplished "by such devices as messages and instructions from exercise controllers."
Submittal,
- p. 5.
(i)
Explain how simulation of Suffolk County roles can be accomplished "by such devices as messages and instructions from exercise controllers."
(ii)
What role (s) (e.g.,
County Executive, Suffolk County Police Department officials, health officers, etc.) of Suffolk County will be simulated on February 13?
(iii)
Specifically, how will Suffolk County roles be simulated on February 13?
(iv)
Specifically, where will Suffolk County l
roles be simulated on February 13?
(v)
Specifically, who will be simulating Suffolk County roles on February 13?
(vi)
Specifically, what decisions or actions will be attributed to Suffolk County officials during the February 13 exercise?
For each such decision or r
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action, explain the basis for believing that the particular County official, or an official performing a particular role, would decide or act in the simulated manner during a radiological emergency.
(vii)
Specifically, what will be the purpose of simulating particular Suffolk County roles on February 137 (viii)
Specifically, how and by whom were particular Suffolk County roles chosen for simulation ac part of the February 13 exercise?
(ix)
Will any of the Plan and OPIP provisions referenced at pages 10-11 of the Submittal (which purportedly " contemplate the possibility of ad hoc participation" by Suffolk County officials) be performed or simulated on February 13?
If yes, identify which ones, and identify by whom, how, when, i
and where such performances or simulations will take place.
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4.
LILCO indicates that it "has internal drills scheduled for the period prior to February 13."
Submittal, p. 6.
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A (a)
Provide a listing of the time, place, and name of each scheduled drill, together with a description of what is expected to occur during each such drill and who is expected to participate and/or be present, including persons outside LERO or LILCO.
(b)
Will Suffolk County roles be simulated or performed in any of these drills?
If so, provide full details, including how, when, where, by whom, and for what purpose Suffolk County roles will be simulated or performed.
(c)
Will Suffolk County governmental functions be simulated or performed in any of these drills?
If so, provide full details, including how, when, where, by whom, and for what purpose Suffolk County governmental functions will be simulated or performed.
5.
The Submittal indicates that no LILCO/LERO personnel or their contractors who will participate in the February 13 exercise have access to the exercise scenario or the exercise objectives.
Submittal, p. 6.
l (a)
Are there LILCO/LERO personnel or their contractors who are not participating in the exercise who do have j
access to the exercise scenario and/or objectives?
If so, -
4 identify those peruons and the materials to which they have access, and the roles and functions they perform with respect to emergency preparedness matters.
(b)
The Legislature desires to review copies of the exercise scenario and objectives to the extent that they reveal any data concerning how, when, where, by whom, and for what purpose the roles or governmental functions of Suffolk County officials may be performed or simulated. Please supply such data.
It is acceptable that the data be supplied in a format that satisfies any confidentiality requirement that may have been imposed by FEMA.
6.
The Suffolk County government will not participate in the February 13 exercise.
Does LILCO nonetheless intend to include an attempt (whether simulated or actual) by LILCO/LERO or other " players" in the exercise to contact any Suffolk County official or office during the February 13 exercise?
If LILCO does so intend, explain:
l (a)
Why LILCO intends to attempt such contact; 1
(b)
Describe how, when, where, by whom, and for what purpose there may be an actual or simulated attempt to contact l
any Suffolk County official or office; and l
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4 (c)
Identify which County official (s) or office (s) may be contacted.
7.
LILCo states there will be no " contact with the general public in any governmental capacity, actual or apparent" during the February 13 exercise.
Submittal, p. 5.
Does this mean that none of the LERO personnel whose job functions include " contact with service, support or government organizations" as set forth in OPIP 2.1.1 will make such " contact" by means of phone calls or otherwise, during the February 13 exercise?
If not, what are these individuals expected to do during the exercise?
If they are expected to make such calls, who will they contact, and what is it they will say or do during such contacts?
8.
Identify the " cooperating governments" (Submittal,
- p. 7) that may be included in the February 13 exercise.
9.
LILCO states that "[t]here will be no evacuation of any members of the public."
Submittal, p. 29.
The Legislature construes this statement to mean that no persons at all will be evacuated or moved from where they happen to be at the time of the exercise, including persons in nursing homes, schools, businesses, hospitals, private homes, public buildings, or any other structures.
Is this understanding correct?
If not, please explain in detail.. - _ _.
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10.
The information provided on Attachment 1 of the Submittal is all related to what LERO personnel would do in a "real" emergency --
i.e.,
the contact of LERO personnel with the public or other agencies.
Please revise this Attachment to reflect what is going to happen, and what will be simulated, during the exercise.
11.
According to the LILCO Plan, the Director of Local Response has the ultimate responsiblity for all decisionmaking and actions taken pursuant to the Plan.
It appears, however, that many other LERO personnel, for example those identified as
" Coordinators" and " Lead Traffic Guides," are also expected to exercise judgments in determining how to implement various aspects of the Plan and OPIPs.
Therefore, should not all such people, in addition to the Director of Local Response, be listed as having decisionmaking roles under the LILCO Plan and be so identified in Attachment I?
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12.
Will the LILCO fuel trucks referenced on pages 24 and 28 of the Submittal be loaded with fuel?
If so, what safety precautions will LILCO take to ensure adequate protection of the c
l public's health and safety?
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4 ENCLOSURE 2 LONG ISLAND LIGHTING COMPANY'S RESPONSE TO/THE x' /
1986
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SUFFOLK COUNTY LEGISLATURE'S JANUARY 21,bY l
REQUEST FOR ADDITIONAL INFORMATION Y
d'g LILCOsubmitsthefollowingresponsestothe2$quEstsfdr9ad-LG 4
~1 ditional information made by the Suffolk County Legas'laturecon Q
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January 21, 1986.
LILCO has attempted to respond as fully Tas,pos-sible to each question posed.
However, LILCO notes for the Legis-lature's information three general factors applicable to its re-sponses.
First, a number of questions proceed from a misapprehension of the February 13 exercise.
As LILCO described in its earlier submittal to the Legislature, the exercise will in-volve no complusive effects on the public at large, nor any holding-out to the public of any governmental authority on LERO's behalf.
The only manner in which the general public --
i.e.,
cit-izens not voluntarily associated with any of the exercise activi-ties -- may be involved in the February 13 exercise is if sirens are sounded, EBS messages broadcast, and public information bro-chures distributed to the public.
As LILCO has explained, these activities need not be carried out during the February 13 exer-cise, and accordingly, LILCO has requested the Legislature's guid-ance on them.
Second, a number of questions request information which can be supplied only by persons having specific knowledge of the exercise scenario and objectives.
This information is under FEMA's control, not LILCO's, and LILCO remains confident that the Legislature can assess the consistency of the exercise with Local Law 2-86, particularly in view of its January 16 submittal and the January 22 joint submittal by the NRC and FEMA, without resort to any of these confidential materials.
Third, some questions which
n,
seek information about activities prior to the February 13 exer-cise place LILCO in an awkward position.
While LILCO is ready to answer the Legislature's questions about the internal LERO drills that will be performed prior to Febuary 13, it does not feel it can provide this information to the Legislature without first ob-taining assurances that drill participants will not be exposed to criminal prosecution.
LILCO understands that counsel for Suffolk County agreed yesterday, January 27, in a hearing before Judge Wexler in the U.S. District Court that the County would not at-tempt to subject anyone to criminal liability for actions taken within the first 25 days after Local Law 2-86's effectiveness.
1.
This question proceeds from a misconception of the law.1/
The court in Cuomo v. LILCO did not rule "that LILCO lacks author-ity to perform governmental functions."2/
Instead, the court in Cuomo v. LILCO found that LILCO did not have legal authority under 1/
LILCO has previously discussed at length the pertinent legal precedent in its response to Suffolk County's motion for cancella-l tion of the emergency planning exercise filed with the NRC and in its earlier submission to the Legislature.
Rather than repeating i
those discussions here, LILCO is attaching its Response to Suffolk County's Motion for Cancellation and refers the Legislature spe-I.
cifically to pages 9-19 of that pleading and pages 5, 30-33 of its initial January 16 filing to the Legislature.
2/
Indeed, Judge Geiler rejected Suffolk County's and New York State's invitation to broaden his Partial Declaratory Judgment to i
state that New York State law did not " empower LILCO to implement i
the Transition Plan or perform covernmental functions."
New York i
State, Suffolk County, and Town of Southampton Proposed Declarato-t ry Judgment, No. 84-4615, p. 8 (March 2, 1985).
The Partial De-claratory Judgment contains no reference to " governmental func-tions."
See Partial Declaratory Judgment, No. 84-4615, p. 8 (March 25, 1985).
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New York State law to implement its plan.
The cecision does not stand for the proposition that LILCO cannot plan for a radio-logical emergency.
LILCO believes, and that view is shared by the NRC, FEMA and the Department of Justice,El that exercising a re-sponse plan is an integral part of planning activities.
Accord-ingly, LILCO believes there is no legal impediment to exercising the Shoreham Offsite Plan, particularly since the exercise will not involve actual " implementation" of any protective action rec-ommendation.
Similarly, as noted in LILCO's earlier submission to the Leg-islature (p. 32), Judge Altimari in Citizens for an Orderly Energy Policy, Inc. v. County of Suffolk, 604 F.Supp. 1084 (E.D.N.Y.
1985) did not concede to the Suffolk County carte blanche authori-ty to frustrate federally required emergency planning or the fed-eral licensing process.
He clearly recognized that it is the NRC who must ultimately rule on the acceptability of the Shoreham Offsite Plan.
See County of Suffolk v. Long Island Lightino Co.,
728 F.2d 52, 60 (2d Cir. 1984).
3/
Following LILCO's initial submittal to the Legislature, the NRC and FEMA ("the NRC/ FEMA letter", dated January 22, 1986) and the Department of Justice ("the DOJ letter", dated January 23, 1986) have sent letters to Suffolk County Executive Peter Cohalan which state that an exercise is an essential component in de-termining whether the public health and safety will be protected and, hence, whether an operating license will be issued.
The let-ters also indicate that an exercise is not the same as imple-mentation of a plan.
For the Legislature's convenience, copies of these letters are attached to this response.
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s Finally, as is noted in tne January 23 Justice Department letter, the Atomic Energy Act requires the NRC to determine wheth-er the public health and safety has been protected before it can grant a license to operate a nuclear power plant.
This responsi-bility includes a finding that there is " reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency."
10 C.F.R. S 50.47(a) (1985).
This finding can be based on the review and exercise of an emergency plan sponsored by state or local governments or an applicant.
Lona Island Lightino Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-83-13, 17 NRC 741, 743 (1983).
Accordingly, just as LILCO was found to have authority to prepare an emergency plan and submit it for NRC approval, id.,
it also has the authority to exercise that plan to demonstrate it meets the requirements of the Atomic Energy Act and 10 C.F.R. S 50.47.
2.
(a)
LILCO interprets S 3(a) of Local Law 2-86 to require "a person," but not necessarily "all persons," intending to conduct or participate in an exercise falling with the purview of Local Law 2-86, to describe that exercise to the Suffolk County Legisla-ture.
Accordingly, LILCO has attempted, in its January 16 sub-mittal, to provide the Legislature with as fair and complete a de-scription as possible of the functions that will be performed during the February 13 exercise.
This description includes not just functions that will be performed by LERO members but also those that will be performed by support, contractor and other
s e organizations cooperating with LERO and by Federal participants.1/
By including all possible participants in its initial filing, LILCO sought to immunize those participants from later claims that Local Law 2-86 required each of them to have made a separate fil-ing with the Legislature.
The only reason LILCO included employ-ees of LILCO and LILCO contractors who will not participate in the exercise itself, but who were involved in preparing for it (Cate-gory C) in its filing is because of the vagueness of Local Law 2-86 (the prohibitions of S 2 focus on persons " participating" in an exercise, yet the term " participate" is never defined in the law).
While LILCO believes that people included in Category C will not " participate" in the February 13 exercise, it has never-theless included them in its filing out of an abundance of cau-tion.
By filing on behalf of all exercise participants, LILCO did not intend to hold itself out as a representative of other partic-ipants except for the limited purpose above; nor does it do so now.
(b)
" Support, contractor, and other organizations cooperating with LERO" are detailed in section 2.2 of the Shoreham Offsite Plan, a copy of which accompanied LILCO's prior submittal to the Legislature.
" Federal entities, officials and contractors" 1/
Subsequent to LILCO's initial filing, the role of federal participants has been described in more detail in the NRC/ FEMA and DOJ letters of January 22 and 23.
s j,
1 are listed on page 1 of the NRC/ FEMA letter of January 22.
Gov-ernmental participants will come from the NRC, FEMA, the Depart-ment of Energy, the Department or Commerce, the Environmental Pro-tection Agency, the Department of Health and Human Services, the Department of Transportation and the Department of Agriculture.
3.
These questions proceed from a misconception of FEMA's objec-tives when it exercises emergency plans for nuclear power plants.
These exercises always involve the " simulation" of emergency cir-cumstances and responses.
They are not coercive; the public is not ordered to evacuate an area; and by and large, life proceeds as normal.
As a result, State and local governmental functions are normally not part of an exercise.
(a)
During an official FEMA exercise for the Indian Point plant, in 1983, at which the New York State Compensating Plan for Rockland County was being tested, utility personnel performed, or were trained and ready to perform, a series of " functions" that the Legislature may consider to be " governmental" in nature.
These functions included field radiation monitors, route alert drivers, traffic guides, road crews (including tow truck drivers),
and reception center workers.
LILCO understands that these utili-ty personnel totaled on the order of 450 persons.
(b)
In every FEMA exercise, messages and instructions from exercise controllers serve to simulate governmental roles.
This aspect of an exercise is known as " free play."
For example, if in i
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a given exercise the ultimate offsite decisionmaker (normally the appropriate local official) decides, based on the facts before him, that sheltering is the appropriate protective action recom-mendation, he will issue an instruction to his response organiza-tion to take steps that, in a real emergency, would carry out his sheltering recommendation.
If, however, FEMA wishes to observe the response organization's ability to perform evacuation func-tions, a free play message will be given to the decisionmaker which overrides his earlier decision to shelter and instead in-structs the organization to implement steps which, in a real emer-gency, would result in an evacuation.
In this example, the free play message acts to simulate a governmental decision.
(c)
See the response to question 3(a) above.
(d)(i)
Simulation can be accomplished by free play messages.
These messages are described in response 3(b) above.
(ii)
The information requested by this question is provided in general in the joint NRC/ FEMA letter of January 22.
As to Shoreham-specific circumstances, it is confidencial scenario in-formation within FEMA's control.
(iii)
The information requested by this question is confi-dential scenario information within FEMA's control.
As the January 22 NRC/ FEMA letter indicates, federal employees will play the roles of Suffolk County officials.
These " actors" will not play decisionmaking roles, nor interact with members of the public
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so as to lead anyone to believe that they are actually County of-ficials, nor actually perform any State or local functions that are reserved to State or local officials by State or local laws.
(See NRC/ FEMA letter at 3).
(iv)
The information requested by this question is confiden-tial scenario information within FEMA's control.
(v)
The NRC/ FEMA letter expressly states that " federal em-ployees" will simulate these roles.
(vi)
This question proceeds from an improper assumption.
Suffolk County participation is not simulated, as the question implies, to try to guess what decisions Suffolk County officials would make during an actual emergency.
Rather, the reason for si-mulating Suffolk County involvement is to test LERO's ability to respond to any of a wide variety of possible County involvements.
This ability to respond can be judged without making any predic-tions about the actual future actions of Suffolk County officials.
The actual " decisions" that federal " actors" may make during an exercise are confidential scenario information within FEMA's control.
(vii)
The purpose of simulating Suffolk County roles is explained fully in'the January 22 NRC/ FEMA letter.
It states on l
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o Through this role-playing, the NRC is at-tempting to more effectively evaluate LERO's capability (1) to accommodate the presence of State and local officials, (2) to support those. officials using the resources available through LERO, and (3) to provide those offi-cials with sufficient information to carry out their State and County responsibilities.
(viii)
The information requested by this question is confi-dential scenario information within FEMA's control.
(ix)
The information requested by this question is confiden-tial scenario information within FEMA's control.
4.
(a)
Numerous internal drills are scheduled for the period between now and February 13.
LILCO/LERO personnel will partici-pate in all of them.
The number of persons, if any, participating from outside LERO or LILCO may depend on whether Suffolk County intends to attempt to enforce Local Law 2-86 less than 25 days following its enactment.
Extra-LILCO o'rganizations have indicated from time to time to LILCO that they are not willing to subject their employees or members to the threat of prosecution under cir-cumstances where there is no possibility of avoidance.
LILCO un-derstands that counsel for the County stated yesterday before U.S.
District Judge Wexler that persons would not be subjected to pros-ecution during the first 25 days following Local Law 2-86's effec-tive date.
On this understanding, LILCO states that there is a major practice session scheduled for January 30.
There may be other, smaller practice sessions virtually daily between now and February 13.
These practices may involve functions up to and
. O including, but not exceeding, those which would be conducted on February 13.
(b)
LILCO does not fully understand what is meant by the concept of " simulation" of Suffolk County " roles."
For instance, various of the LERO functions -- evaluation of information, commu-nication of information, and the like -- might be considered by the Suffolk County Legislature to involve " simulation" of " roles,"
but in fact are merely objective functions which can, in fact, be performed by anyone.
However, the roles of Suffolk County offi-cials have never been physically simulated in any LERO drill.
While LILCO continues to believe this role-playing would be a use-ful training device, it has refrained from employing to date it because of the possible criminal jeopardy posed by the vagueness of Local Law 2-86.
During drills, LERO personnel have been asked questions by drill controllers that have been designed to test their knowledge of how the Shoreham Offsite Plan provides for pos-sible interfaces with Suffolk County officials should those offi-cials decide to participate during an actual emergency at Shoreham.
However, LILCO may in fact have personnel actively play the roles of extra-LILCO decisionmakers in practice exercises on its own property between now and February 13.
Any such role-playing will be purely for purposes of enabling LERO to react to the presence of state or local governmental officials in the event of an actual emergency, or to the presence of federal officials si.nulating such state or local of ficials on February 13.
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(c)
The submission provided by LILCO on January 16 provides a full description of the tasks which will be undertaken in an ex-ercise on February 13.
The object of the preparatory drills is to get as fully ready, as realistically as possible, for the February 13 exercise.
The Suffolk County Legislature should assume that all functions which will be performed on February 13 by LERO per-sonnel may be performed in preparatory exercises.
5.
(a)
Certain LILCO personnel and LILCO contractors, who are not participating in the exercise, have access to the exercise scenario and objectives.
LILCO respectfully declines to identify these persons or the materials to which they have access:
- first, because of the criminal jeopardy they may face given the vagueness of Local Law 2-86, and second, because LILCO does not believe that the requested information is relevant to the decisions the Legis-lature must make under 5 3(e) of Local Law 2-86.
(b)
The information requested by this question is confiden-tial scenario information within FEMA's control.
A general de-scription of the purposes for simulating the roles of Suffolk County officials are described on pages 2 and 3 of the NRC/ FEMA i
letter.
~
6.
(a)
In a FEMA graded exercise, LERO expects to carry out the Shoreham Offsite Plan as written unless instructed otherwise by FEMA controllers.E/
The Plan includes several provisions for S/
As noted in LILCO's January 16 filing with the Legislature (pp. 17-28) and in the two letters from the federal government to (footnote continued)
contacting Suffolk County officials.
For instance, these include (1) all RECS line communications (Plan, p. 3.4.1 & Fig. 3.4.1),
(2) OPIP 3.1.1, Attachment 9, Item 14 which requires the Director of Local Response to contact the Suffolk County Executive at an Alert or higher classification and to request him to carry out his responsibilities under Article 2B of the New York State Executive Law, and (3) OPIP 3.1.1, Attachment 1, page 10, which requires the Director of Local Response to provide periodic updates to Suffolk County officials on the status of the emergency.
(b)
How, when, where, by whom, and for what purpose any such contacts will be actually attempted or simulated requires knowl-edge of the exercise scenario.
Again, this information is within FEMA's control.
(c)
The RECS line rings at three locations in Suffolk Coun-ty:
(1) the Suffolk County Police Department Communications Cen-ter in Yaphank, (2) the Suffolk County EOC in Yaphank, and (3) the Suffolk County Fire Safety Center in Yaphank.
Whoever is on duty at each of these three locations at the time the RECS line rings could be expected to answer any such call.
Calls made pursuant to (continued from previous page) l the Suffolk County Executive, FEMA controllers can be expected to l
take all efforts to limit contacts with the general public during i
an exercise and to avoid confrontation.
For example, while traf-l fic guides will be mobilized and sent to their assigned posts if an evacuation is ordered, they will not enter intersections and direct traffic as outlined in the Plan.
Likewise, road crews will not remove obstacles from the roadway nor will fuel trucks dis-pense fuel.
l i
O,
OPIP 3.1.1 (see response 6(a) above) would be made to the Office of the Suffolk County Executive.
In any such call, if made, the fact that it was being made in connection with a drill, and not for operational purposes, would be clearly indicated.
7.
LILCO's statement that there will be no " contact with the general public in any governmental capaci'ty, actual or apparent" during the February 13 exercise was directed at those individuals not expressly included in support or service organizations in the Plan.
As noted above, LERO will proceed to carry out its Offsite Plan to the extent requested by FEMA in pursuance of its federal responsibilities during the February 13 exercise.
This can in-clude contacting the service, support or government organizations identified in OPIP 2.1.1.
The persons who can be contacted at these organizations are those identified in OPIP 2.1.1.
The LERO members making any such contacts would preface all conversations with the phrase "This is a drill."
With regard to contact with the general public, LILCO has asked the Legislature for advice regarding the activation of si-rens, the broadcasting of EBS messages, and the distribution of the Shoreham brochure (see LILCO Description, pp. 21-23).
8.
The " cooperating governments" that may be included in the February 13 exercise include the State of Connecticut, Nassau County, and the federal agencies identified in 5 2.2 of the Shoreham Offsite Plan.
The extent of their involvement will depend on the exercise scenario.
9.
No member of the general public will be evacuated during the February 13 exercise without both advance notice and consent.
There will be no interruptions of the public's normal daily activ-ities.
To the extent required by FEMA, certain. volunteer non-governmental employees may simulate the roles of evacuees, but in any event, their number would be limited.
Shoreham-specific as-pects are confidential exercise information within FEMA's control.
10.
LILCO has already provided the information requested by this question in this response and in its January 16 submittal to the Legislature.
Accordingly, revision of the lengthy chart contained in Attachment 1 would merely be a burdensome, time-consuming un-dertaking that would yield no new information for the Legisla-ture's decision.
Second, Attachment 1 was included with LILCO's initial submittal to provide the Legislature with a shorthand guide to understanding the LERO organization as it is presented in the Shoreham Offsite Plan.
Its purpose was not to identify the specific roles LERO personnel would carry out during the February 13 exercise.
As noted above, all functions will be simulated during the February 13 exercise.
No actions will be taken that will have any compulsive effect on the public at large.
There will be no hold-ing out to the public of any legal authority with respect to it nor any contact with the public in any governmental capacity, ac-tual or apparent.
All contacts between LERO and any support or service organization will begin with the phrase "This is a drill."
Finally, some, but probably not all, resources that are identified in the Shoreham Offsite Plan will be required to demonstrate LERO's ability to carry out its Plan.
The extent of this resource mobilization depends on the exercise scenario.
11.
LILCO believes that it has correctly identified the Director of Local Response as the only LERO member having decisional re-sponsibility under the Plan.
All other~LERO personnel, including coordinators and lead traffic guides, merely is7 ement the Plan.
1 In some cases, this implementation may include a limited exercise of discretion, but LILCO does not view this as true decisional re-sponsibility, but rather as the filling of interstices in the Plan.
Accordingly, LILCO has described the activities of these LERO members as " implementation".
12.
LILCO currently expects to have its fuel trucks fully loaded during the February 13 exercise.
LILCO believes that these trucks have all appropriate licenses under New York State Law, and are equipped with all regulatorily-required safety features to ensure the adequate protection of the public's health and safety.
If the Legislature has any information suggesting that LILCO's belief is incorrect, LILCO requests to be so informed promptly.
DATED:
January 28, 1986
LILCO, January 6, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Comndssion In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning Proceeding)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
RESPONSE OF LONG ISLAND LIGHTING COMPANY TO MOTION FOR CANCELLATION OF EMERGENCY PLANNING EXERCISE On December 24, 1985, Suffolk County, the State of New York, and the Town of Southampton ("Intervenors") filed a motion to can-cel a scheduled FEMA exercise of the Shoreham Emergency Plan.1/
Reduced to its simplest form, Intervenors' motion advances two arguments for reversal of the Commission's earlier decision to re-quest FEMA to conduct an exercise of that Plan.
Intervenors first contend that " binding" legal decisions forbid LILCO from imple-menting the Shoreham Plan and that, as a result, any exercise of the Plan would serve no useful purpose.
Second, Intervenors argue that if one of the purposes of the exercise is to simulate roles for state and local governmental officials, then the exercise again serves no useful purpose since conducting the exercise would 1/
Suffolk County, State of New York and Town of Southampton Motion for Cancellation of Emergency Planning Exercise (December 24, 1985) (hereinafter "Intervenors' Motion").
6w< ray'jg 71pp.
N
be tantamount to testing a plan that had not been the subject of prior litigation.
As will be discussed in detail below, neither claim is meritorious; neither presents any information not already before the Commission when it determined to request FEMA to sched-ule an exercise for Shoreham; neither warrants the Commission's reconsidering and reviewing that decision.
In reality, Intervenors' motion goes to the weight to be given the results of an exercise in deciding whether to grant Shoreham a full power operating license, and not to the question of whether the Commission has the authority to exercise the Shoreham Plan.
As such, Intervenors' motion is premature.
They will have ample opportunity to question the exercise results and their use following the completion of the exercise.
As a result, Intervenors have failed to demonstrate any harm from conducting an exercise.
On the other hand, conducting an exercise will yield impor-tant information.
Firat, it will shed light on the actual effec-tiveness of LERO, the Shoreham Local Emergency Response Organiza-tion set up in the wake of Suffolk County's default on emergency planning matters.
Second, it will help to confirm or rebut a large group of Intervenors' arguments about whether the Shoreham Emergency Plan actually can be effective as proposed.
Third, it will test LILCO's " realism" argument.2/
Thus an exercise would 1
1/
The " realism" argument contends that despite the state and local governments' refusal to cooperate in emergency plannino, (footnote continued) l l
1
1 assist the Commission in deciding whether to license the Shoreham facility.
Accordingly, the Commission has correctly decided to hold an exercise and Intervenors' motion to cancel that exercise should be denied.
I.
Conducting an Exercise of the Shoreham Emergency Plan Would Yield Useful Information Intervernors contend that a FEMA exercise of the Shoreham Emergency Plan would neither serve any purpose nor be "useful" in the Shoreham licensing process.
Intervenors' Motion at 5-6.
Intervenors' argument is premised on this construct:
- 1) LILCO must have an implementable emergency plan to meet NRC regulatory requirements, 2) c series of court decisions, and particularly one by a New York baseline trial court judge (Justice Geiler), estab-lish, "as a matter of law," that LILCO cannot implement the Shoreham Plan in an actual emergency, and 3) since the Shoreham Plan will be implemented solely by LILCO, an exercise of that plan would serve no useful purpose.
Id. at 6.
In addition, Inter-venors take a quantum leap and suggest that Justice Geiler's deci-sion prohibits LILCO from even exercisina any emergency activity 4
that, if actually performed in an emergency, would be governmental in nature.
Assuming this prohibition, Intervenors argue that any (continued from previous page) they would nevertheless respond in the event of an actual emergen-l cy at Shoreham, as they are required to do under state law.
This argument is currently pending before the Commission as part of the review of ALAB-818.
I t
9.
exercise would be so devoid of content as to render it useless.
Intervenors' Motion at 6-15.
These arguments rest on false pre-sumptions and must be rejected.
A.
It Has Not Been Settled that the Shoreham Emeroency Plan Cannot Be Lecally Implemented Intervenors' argument that it has been established that the Shoreham Plan cannot be legally implemented is simply wrong for two reasons.
First, the decisions cited by Intervenors do not stand as binding precedent for the proposition that the Shoreham Plan cannot be implemented.
Second, Intervenors have mischaracterized the Shoreham Plan, and the litigation concerning that Plan, by suggesting that the Plan's implementation rests solely with LILCO.
Intervenors cite four cases for the proposition that, as a matter of law, the Shoreham Plan cannot be implemented.
See Intervenors' Motion at 5-6.
Intervenors rely principally on Jus-tice Geiler's decision in Cuomo v. LILCO, Consol. Index No.
84-4615 (N.Y. Sup. Ct., Feb. 20, 1985), and argue that "[f]or pur-poses of the NRC's proceedings, LILCO has accepted the Cuomo v.
LILCO decision as a binding interpretation of State law."
Inter-venors' Motion at 5 n.4.
While Intervenors are correct in stating that Justice Geiler ruled in Cuomo v. LILCO that as a matter of New York State law LILCO does not have the authority to implement l
certain functions involved in the Shoreham Plan in an actual emer-i l
gency, LILCO has not acquiesced in that decision; in fact, LILCO l
l l
1
has appealed that decision to the Appellate Division of the New York Supreme Court.
When LILCO first filed its motion for summary disposition of Intervenors' legal authority contentions 2/ with the ASLB, it stated:
This motion assumes, for the sake of aroument, the Intervenors (Suffolk County and the State of New York) are correct that state law pro-hibits LILCO from taking the actions specified in Contentions 1-10.
LILCO's Motion for Summary Disposition of Contentions 1-10 (The
" Legal Authority" Issues), p. 2 (August 6, 1984) (emphasis supplied).
Later, after the decision in Cuomo v. LILCO, LILCO renewed its motion for summary disposition and stated:
LILCO disagrees with the New York State court's decision and intends to seek appellate review of it.
However, LILCO believes that this Board should not await the conclusion of that process before acting:
the decision will become effective upon entry of an Order of Judgment as a matter of New York law; and the complete review process (through the New York Appellate Division and Court of Appeals, with an appeal to the U.S. Supreme Court) bids fair to take two or^three years at least.
LILCO's Renewed Motion for Summary Disposition of Legal Authority Issues on Federal-Law Grounds, p. 5 n.7 (February 27, 1985).
Thus, LILCO has not accepted the decision in Cuomo v.
LILCO as the final word on New York State law, and it will not be the final 1/
Ten of the 100-odd contentions filed by Intervenors on the Shoreham Emergency Plan (Contentions 1-10) dealt specifically with LILCO's legal authority to carry out plan activities durino an actual emeroency.
These ten contentions have been dubbed the
" legal authority" contentions and are the primary focus of ALAB-818.
word unless upheld on appeal.
Rather, LILCO has accepted the Cuomo v. LILCO decision as the present interpretation of New York State law for the purpose of deciding the preemption issues before the ASLB and ALAB.
Intervenors also cite a licensing board decisioni/ and an ap-peal board decisionE/ as holding that State and local laws inter-preted in Cuomo v. LILCO are not pre-empted by federal law and that the Shoreham Plan cannot be implemented.E/
Intervenors' Motion at 5-6.
The status of these decisions is clear.
The Com-mission has agreed to review them and, accordingly, is free to overrule them if it so chooses.
Thus, they do not bind the Com-mission.
4/
Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644 (1985).
5/
Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-818 (Oct. 18, 1985).
s/
Intervenors also suggest that the ASLB denied Shoreham a full power operating license solely because it concluded that the Plan could not be implemented.
See Intervenors' Motion at 6.
Inter-venors have misstated the ASLB's decision.
The ASLB did not con-clude that because New York State law prohibited LILCO from per-forming certain governmental functions, and those laws were not pre-empted by federal law, its inquiry was ended and LILCO should be denied an operating license.
Instead, the ASLB found in re-sponse to LILCO's " realism" arguments that since New York State and Suffolk County were " free to go (their] own way" during an ac-tual emergency, NRC regulatory requirements for pre-planning were not met.
Lono Island Lichtino Co. (Shoreham Nuclear Power Sta-tion, Unit 1), LBP-85-31, 22 NRC 410, 428 (1985).
Whether the ASLB was correct in this subjective conclusion or whether the Shoreham emergency plan is sufficiently flexible to accommodate an ad hoc response by State and/or local officials is a question that should be illuminated by an exercise.
Finally, Intervenors make passing reference to Citizens for an Orderly Enercy Policy, Inc. v. County of Suffolk, 604 F. Supp.
1084 (E.D.N.Y. 1985).
Intervenors' Motion at 5 n.5.
This deci-sion does not, by any stretch of imagination or logic, hold that 1
the Shoreham Plan cannot be implemented.
Instead, the federal district court held that a local government can refuse to cooper-ate in emergency planning solely because Congress and NRC deci-sions permit a utility to go forward with its own emergency plan.
In this regard, the court explained:
Certainly the County may not require LILCO to comply with the County's requirements for a satisfactory RERP; whether LILCO's RERP is sufficient is a question for the NRC, and the County may not override the NRC's judgment.
Here, however, the County has not passed a moratorium on nuclear plant construction and operation based on the County's opinion that no satisfactory RERP can be devised.
Rather the County has adopted the position that a satisfactory RERP is not obtainable.
The County has not and cannot supersede the judg-2 ment of the NRC on whether or not a license should issue for Shoreham.
Once the NRC makes that decision the County's opinion on LILCO's RERP will become academic.
604 F. Supp. at 1094-95.
Thus, the four cases relied on by Inter-venors do not by any means hold that the Shoreham emergency plan cannot, under any circumstances, be legally implemented.
Intervenors are also incorrect in suggesting throughout their motion that the Shoreham Plan that has been litigated in this pro-ceeding assumes that LILCO, and only LILCO, will implement that Plan.
Intervenors have misread the Plan and have ignored both the composition of LERO and the " realism" argument that has been l
f
s,
presented at each stage of this licensing proceeding.2/
The Shoreham Plan contains express provisions for State and local gov-ernmental participation during an actual emergency.
These provi-sions include guidance to the LERO Director of Local Response on the actions he should take if State or local governmental offi-cials decide to cooperate in an actual emergency (including sug-gestions for activities governmental personnel could perform),
SNPS Local Offsite Radiological Emergency Response Plan, pp.
1.4-la, 1,4-2, 1.4-2a, 1.4-2b, 3.1-1, a detailed procedure for participation by the Suffolk County Police Department as traffic guides, OPIP 3.6.3, pp. 3, 4 and Attachment 15, a prioritized list of routes to be plowed should governmental entities offer snow removal assistance, OPIP 3.6.3, p. 3 and Attachment 16, and the assignment of LERO personnel trained in radiation fundamentals and dosimetry to accompany governmental emergency response personnel in restricted areas to ensure those individuals will not receive excessive doses of radiation, SNPS Local Offsite Radiological Emergency Response Plan, p. 2.2-4h.
2/
LILCO has presented its " realism" argument to the Licensing Board (LILCO's Memorandual of Service of Supplemental Emergency Planning Information, pp.
7, 15 (May 26, 1983); LILCO's Motion for Summary Disposition of Contentions 1-10 (The " Legal Authority" Is-sues), pp. 42-50 (Aug. 6, 1984); LILCO's Brief on Contentions 1-10, pp. 9-12, 42-66 (Nov. 19, 1984)), the Appeal Board (LILCO's Brief Supporting Its Position of Appeal from the " Partial Initial Decision on Emergency Planning' of April 17, 1985, pp. 45-58 (June 3, 1985); LILCO's Reply Brief on the Legal Authority, Conflict of i
Interest, and State Plan Issues, pp. 2-6 (July 24, 1985)), and the Commission (LILCO's Petition for Review of ALAB-818, pp. 6-7, 12 (Nov. 4, 1985)).
l l
i
i LILCO has always argued, and New York State and Suffolk Coun-ty officials have never denied,E/ that if Shoreham were licensed to operate and an accident actually occurred, New York State and Suffolk County officials would act to protect their citizens.
Since a detailed emergency plan would exist and a large organiza-tion, LERO, would be available and trained to carry out that plan, it is not credible that governmental organizations would wholly ignore LILCO's immense response capability.
The Shoreham Plan re-flects these practical realities and is sufficiently flexible to accommodate them.
This is the essence of LILCO's " realism" argu-ment.
An exercise would be particularly useful in assessing the flexibility of the Shoreham Plan to respond to ad hoc governmental responses, and could provide the basis for a " reasonable assur-ance" finding by the Commission.
Accordingly, an exercise is "useful" and Intervenors' arguments to the contrary must be re-jected.
B.
The Decision in Cuomo v. LILCO Does Not Prohibit the Exercising of Certain Portions of the Shoreham Plan Through what is largely an attempted semantic sleight-of-hand, Intervenors contend that the decision in Cuomo v. LILCO also 8/
See pages 15-20 below for a discussion of Intervenors' sug-gestion in their motion (Intervenors' Motion at 19-21) that Suffolk County officials are forbidden from responding in the event of an actual emergency.
forbids LILCO from simulating the performance, during an exercise, of any of the activities held to be prohibited during an actual emeroency.
Intervenors reason that, absent these activities, an exercise would yield no meaningful results.
See Intervenors' Mo-tion at 6-15.
The simple response to Intervenors' argument is that Cuomo v. LILCO addressed only LILCO's authority to "imple-ment" its Plan during an actual emergency, not its authority to
" exercise" that Plan..
Intervenors summarily state, without specific citation to Justice Geiler's decision or Partial Declaratory Judgment, that:
it is clear that multiple functions in the plan clearly cannot be performed by andcannotbeincludedinanyexercise.gpILCO and The Court rejected LILCO's claim that it had corporate authority to carry out the LILCO plan; it held that LILCO has no corporate au-thority to carry out the plan or to perform basic plan functions.
A fortiori, LILCO has nocorporateauthorityggjtest its ability to carry out illegal acts.--
and, finally Under the terms of the Partial Declaratory Judgment, LILCOisprohibitedfromexe{gjsing each of the functions set forth above.--
The sole basis for these conclusions is Intervenors' substitution 9/
Intervenors' Motion at 6.
10/
Id. at 8.
11/
Id. at 10.
1 f
of the verb " exercise" for the verb " implement" contained in Jus-tice Geiler's decision.
A review of that decision reveals this substitution is inappropriate.
Both Justice Geiler's decision and Partial Declaratory Judg-ment are clearly focused on LILCO's legal authority to carry out its Plan during an actual emergency at Shoreham.12/
Each talks about LILCO's authority to " implement" its Plan, not its authority to draft and test that Plan.12/
Likewise, review of Intervenors' complaints reveals that they too were focused on LILCO's ability to implement various emergency response functions in an actual emergency.
For example, the virtually identical paragraphs from each complaint cited in Intervenors' motion (see Intervenors' Motion at 9) begin with the phrase "[iln the event of an accident 12/
The Court's opinion and Partial Declaratory Judgment are at-tached to this reply (Attachments 1 and 2).
The materials that are attached to this reply either have not been published or,'in our belief, have not been previously provided to the Commission.
13/
The only ambiguity in the opinion appears on page 12 of the decision.
There, the opinion states:
"LILCO in ' planning' for a radiological emergency would in effect be performing functions that are governmental in nature."
However, the context of this statement, and the Partial Declaratory Judgment which followed, reveal that the Court did not prohibit LILCO from planning for a radiological emergency.
The Partial Declaratory Judgment does not in any manner restrict LILCO's ability to engage in pre-energency planning or exercising as part of that planning.
Such a prohibi-tion would place State and local laws in direct conflict with fed-eral law which clearly authorizes a utility to prepare an emergen-cy plan in the absence of state and local planning.
- Ege, e.c.,
Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-83-22, 17 NRC 608, 629, 641-43 (1983); Lono Isisqd Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-83-13, 17 NRC 741, 743 (1983).
at Shoreham.
(emphasis added).
This phrase can only be interpreted as applying to LILCO's actions at the time of an actu-al emergency, not to earlier planning activities.
The scope of Justice Geiler's decision is set forth in the Partial Declaratory Judgment.
Both Intervenors and LILCO pres-ented proposed language for that judgment to Judge Geiler.
The court adopted LILCO's proposal with only minor modification, hold-ing that LILCO was not empowered only "to implement the Transition Plan."11/
Therefore, Cuomo v.
LILCO does not forbid LILCO from simu-lating alleged " governmental functions" during an exercise.
Intervenors' arguments to the contrary must be rejected.
11/
Intervenors' construction of Justice Geiler's opinion is also fallacious logically.
Once one departs from the bright-line dis-tinction between actual implementation and all other forms of ac-tivity (all of which are species of planning), one gets onto a slippery slope with no logical stopping-point.
If a formal graded FEMA exercise (where state-law governmental emergency response functions would be simulated but not in fact performed) is unlaw-ful, is not an internal LILCO drill held entirely on LILCO proper-ty, where the same functions are also simulated but not performed, also unlawful?
If so, are not internal tabletop exercises, where governmental responses are among those simulated, also unlawful?
Are not corrective amendments to emergency plans based on the re-sults of such internal exercises also unlawful?
Is not the estab-lishment of LERO unlawful?
At bottom, is not the very act of emergency planning as an intellectual exercise, which forms the basis for these internal drills and exercises, unlawful?
That none of these processes short of actual implementation is not un-lawful is attested to not only by the absence of statutory or decisional support but also by logic and by the fact that LILCO has been submitting and amending its emergency plan, creating an emergency planning organization, and training and drilling it for nearly three years now without prosecution or threat thereof by an opponent not known for its restraint.
t
II.
An Exercise Which Includes the Simulation of State /
Local Government Response Would Be Consistent with Prior Litiaation in this Proceedina Intervenors contend that if a FEMA exercise included the sim-ulation of State or local government response, "the exercise would be irrelevant to the Shoreham licensing process."
Intervenors' Motion at 15.
Intervenors argue that since.the Shoreham Emergency Plan relies solely on LILCO for implementation, simulated partici-pation of State or local governments would test a plan that was not the subject of prior scrutiny.
Id. at 15-18.
They assert that the Commission has no authority to conduct such an exercise, and that conducting the exercise "would be a gross violation of
[Intervenors'] due process and the NRC's own regulations."
id. at 18-19.
Finally, they argue that simulation of a Suffolk County l
response would be " irrational," since County law prohibits all County employees from implementing the Shoreham Plan.
Inter-venors' Motion at 19-21.
Intervenors' claims are meritiess.
As noted above, the Shoreham Emergency Plan does not rely solely on LILCO for its implementation.
Instead, the Plan was designed to be implemented by a voluntary response organization --
LERO -- in the absence of a State or local response.
However, the Plan clearly recognizes that a governmental response takes prece-dence over LERO actions.
SNPS Local Offsite Radiological Emergen-cy Response Plan, p. 1.4-la.
Accordingly, the Plan contains nu-merous provisions for coordinating the actions of governmental officials with those of LERO should those officials participate, t
l as they are required by State law to do, during an actual emergen-cy.
Thus, an exercise which included the simulation of an.ad hec i
State or local government response would be entirely consistent j
with the Plan that has been the subject of litigation in this pro-ceeding.1E/
i 11/
Contrary to Intervenors' assertions, the ASLB did not limit l
litigation to a plan that was to be implemented only by LILCO.
See Intervenors' Motion at 16.
When LILCO originally submitted its Shoreham Plan, it submitted a core plan with four " interim" plans.
The core plan assumed implementation by LERO and Suffolk l
County, while the interim plans assumed LERO-only, LERO/New York State, LERO/ FEMA, and LERO/NRC implementation.
In describing the
]
LERO-only plan to the ASLB, LILCO stated:
Based on past experience, LILCO expects that many County personnel would be willing to perform their duties if there were an actual radiological emergency.
LILCO's interim compensating plans take i
into account the potential participation of County personnel.
For example, the evacuation plan pro-vides that LILCO personnel will be available at each traffic post to assist County police officers.
If a particular police officer here or there does not show up at once, the LILCO person can guide traffic until the police officer arrives.
Simi-i larly, if the County Executive reports to the local Emergency Operations Center, LILCO's plans provide j-for him to be brought into the emergency response process.
l LILCO's Memorandum of Service of Supplemental Emergency Planning Information, p. 15 (May 26, 1983).
The ASLB limited litigation to
]l the LERO-only plan "(u]ntil such time as LILCO can establish that one or more of the governmental entities designated in its emer-1 gency plan consent to participate in such a venture."
Order Lim-iting Scope of Submissions, p. 3 (June 10, 1983).
The ASLB's later rulings on the admission of certain evidence do not evince a different intent.
The rulings cited by Inter-venors (Intervenors' Motion at 16 n.15) did not exclude evidence on New York State and Suffolk County response in an actual emer-j gency.
Instead, the struck testimony opined on whether Suffolk
]
County police would ignore their superiors and County law and re-l (footnote continued) i
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n_,
n----+-,,,--mwm_-num,m,,,,,
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.mn,-
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The exercise would not test some " secret" plan as Intervenors suggest.
Nor would it deny them due process.
Indeed, Intervenors will have ample opportunity to challenge the scope of the exercise and the effectiveness of LERO actions in later hearings.
Finally, Intervenors contend that simulation of a response by Suffolk County officials would be irrational since all County em-ployees are prohibited by law from implementing the Shoreham Emer-gency Plan.
As support for this argument, Intervenors implicitly ask the Commission to accept their novel, expansive readings of several court decisions, to ignore State law requiring the County Executive and the Governor to take the most effective response (continued from previous page) spond during a radiological emergency (Contention 25), why Suffolk County's refusal to cooperate had resulted in a misallocation of resources (Contention 65), and whether a New York State Emergency Plan existed (Contention 92).
By contrast, Intervenors unsuccessfully attempted to strike a question and answer contained in LILCO's testimony on Contention 92 that, stated:
Q.
Has New York State indicated whether it would respond were an emergency to occur at Shoreham?
A.
Yes.
In a press release by Governor Mario Cuomo, dated December 20, 1983, the Governor stated that "(o]f course, if the plant were to be operated and a misadventure were to occur, both the State and County would help to the extent possible; no one suggests otherwise."
Cordaro, gt al., ff. Tr. 13,899, p. 7.
The ASLB denied this ob-jection and admitted the evidence, holding that "the statement of the Governor of New York concerning whether the State would re-spond to an accident at Shoreham is relevant."
Tr. 5565-66.
This testimony would not be relevant if the ASLB assumed that only LILCO would implement the Shoreham Plan.
possible in an actual emergency, N.Y. Exec. Law Art.
2-B, SS 20, 25, and to ignore the clear and unambiguous statements of the Suffolk County Executive and the Governor that the County and State would respond in the event of an actual emergency at Shoreham.lE/
See Intervenors' Motion at 19-21.
Intervenors' invitations should be rejected.
Intervenors argue:
- 1) Suffolk County Resolutions prohibit County employees from testing or implementing an emergency plan that has not been previously approved by the Suffolk County Legis-lature; 2) the Legislature has not approved a plan for Shoreham;
- 3) decisions in Citizens for an Orderiv Enerov Policy, Inc. v.
11/
In a press release by Governor Cuomo, dated December 20, 1980, he stated that "[olf course, if the plant were to be oper-ated and a misadventure were to occur, both the State and County
-would help to the extent possible; no one suggests otherwise."
Testimony of Cordaro and Weismantle, ff. Tr. 13,899, at 7.
Simi-larly, Suffolk County Executive Cohalan was quoted in the June 15, 1985 New York Times as stating:
In that event (i.e., Shoreham becomes radioac-tive], the county has a duty and responsibili-ty to provide for the health and safety of the residents near the plant.
Again, on June 26, 1985 in response to a letter from LILCO coun-sel, Mr. Reveley, County Executive Cohalan stated:
In the event of a radiological accident, I, as the County Executive will respond to the best of my ability and in accordance with the du-ties and obligations placed upon me by Article 2-b of the Executive Law.
Copies of Governor Cuomo's press release (Attachment 3), Mr. Rev-eley's letter to Suffolk County Attorney Ashare (Attachment 4),
and County Executive Cohalan's reply (Attachment 5) are attached to this Response.
County of Suffolk and Prospect v. Cohalan uphold the resolutions and make them absolutely binding on all County employees including the County Executive; and 4) as a result, any statements by the County Executive to the contrary are void.
While it is true that Suffolk County Resolutions 456-1982 and 111-1983 provide that County funds and personnel shall not be assigned to test or imple-ment an emergency plan that has not been approved by the Legisla-ture and that in the Legislature's view no emergency response plan is possible at Shoreham, they do not, and cannot, expressly over-ride the County Executive's independent responsibilities under Article 2-B of the New York State Executive Law to respond to ac-tual radiological disasters.
Section 25 of Article 2-B provides:
5 25.
Use of local government resources in a disaster.
1.
Upon the threat or occurrence of a disas-ter, the chief executive of any political subdivi-sion is hereby authorized and empowered to and shall use any and all facilities, equipment, sup-plies, personnel and other resources of his politi-cal subdivision in such manner as may be necessary or appropriate to cope with the disaster or any emergency resulting therefrom.
7.
Any power or authority conferred upon any political subdivision by this section shall be in addition to and not in substitution for er limita-tion of any powers or authority otherwise vested in such subdivision or any officer thereof.
Contrary to Intervenors' assertions, the courts have confirmed the County Executive's independent power and duty under Article 2-B to respond effectively in an actual radiological emergency.
Prospect
- v. Cohalan, 490 N.Y.S.
2d 795, 800 (A.D.2 Dept. 1985).
}
. 0 As discussed above at page 7, the court in Citizens for an Orderly Enerav Policy. Inc. v. County of Suffolk, 604 F. Supp.
1084 (E.D.N.Y. 1985), was asked to decide whether Suffolk County's refusal to cooperate in emergency planning was preempted by the Atomic Energy Act.
The court did not decide whether the Suffolk County resolutions overrode the County Executive's independent powers and responsibilities under Article 2-B of New York Execu-tive Law to respond effectively in an actual emergency.
Thus to assert, as Intervenors have, that the federal court confirmed the validity of the resolutions is to stretch the court's decision far beyond its bounds.
The issue of the County Executive's authority under State law was addressed indirectly in a string of decisions in ProsDect v.
Cohalan.11/
That case involved a challenge by a majority of Suffolk County legislators and certain Towns to an executive order, issued by the Suffolk County Executive on May 30, 1985, I
that directed the Commissioner of Police and Commissioner of the Suffolk County Planning
- Department to review, evaluate and test the Shoreham Emergency Plan.
The New York Supreme Court enjoined the Executive Order; that decision was upheld, on narrow grounds, by the Appellate Division of the Supreme Court and by the New York l
State Court of Appeals, which held that the County Executive could not unilaterally adopt an emergency glan, but that he was 12/
ProsDect v. Cohalan, N.Y. Sup. Ct., July 10, 1985, aff'd, 490 N.Y S.
2d 795, aff'd, 493 N.Y.S. 2d 293 (1985).
empowered and required by law to respond effectively in an actual emeroency.
The decisions of the New York appellate courts are instructive in establishing the relationship between the County resolutions and the County Executive's powers and responsibilities under Article 2-B.
The Appellate Division stated:
Specifically, the State Legislature vested local chief executives with the power to respond to a local disaster or the immediate threat of a disaster (see, Executive Law 5 24 (1], SS 25, 26, 29-b), whereas the local leg-islative bodies were endowed with the power to plan and greoare for a disaster (see, Execu-tive Law S-23 [1]).
This delegation of func-tions reflects an awareness by the State Leg-islature that in emergency situations prompt and immediate unilateral action is necessary to preserve and protect life and property, the accomplishment of which would be frustrated if left to a deliberative body such as a county legislature.
490 N.Y.S. 2d at 800 (emphasis in original).
The Court of Appeals confirmed that the County Executive can also engage in pre-emergency planning to some extent:
If the challenged executive order is merely a vehicle for the gathering of information to enable the county executive to perform his statutorily mandated functions of taking "an active and personal role in the development and implementation of disaster preparedness programs" (Executive Law 5 20(1][6]) and giv-ing " advice assistance" to the local legisla-tive body or other duly appointed planning au-thority (Executive Law S 23(5]), it is clearly authorized under the statute.
493 N.Y.S.
2d at 294.
Thus, contrary to Intervenors' assertions, courts have not held that the Suffolk County resolutions prohibit all County
employees including the County Executive from implementing the Shoreham Plan in responding to an actual emergency.
Indeed, those decisions clearly recognize the County Executive's separate responsibilities and duties under Article 2-B.
The statement by Suffolk County Executive Cohalan that he would " respond to the best of [his] ability and in accordance with the duties and obli-gations placed upon (him] by Article 2-b of the Executive Law" thus refutes Intervenors' claim that simulation of a Suffolk Coun-ty response would be irrational.
Conclusion For the reason's stated above, Intervenors' motion to cancel an exercise of the Shoreham Plan should be denied.
Respectfully Submitted,
}.~ 0'.,
'k
~
/
m W. Taylor Reveley, III Donald P.
Irwin James N. Christman Hunton & Williams 707 East Main Street P. O. Box 1535 Richmond, Virginia 23212 DATED:
January 6, 1986
9 O
ATTACHMENT 1 4
Jan. 15, 1985 5,UPREME COURT. CUFFOLK COUNTY MAnio M.
- CUOMO, ATTACHMENT 1 Plaintiff, BY
-against-CEII.ER, J. S. C I.ONG ISLAND 1.IGilTING COMPANY, I...
p February 20, 1985 A
COUNTY OF SUFTO1.K.
Plaintiff,
-ar,ainst-I u:JG ISI.AND I.1GilTING COMPANY, Defendant.
t TONN OF ~ SOUT!!M1PTON, Plaintiff,
-against-LONG ISLAND LIGilTING COMPANY, De f endan t'.
...............................i FAl'.I AN G. PALOMIF0, ESO.
ATT0!:NE'lS FOR DEFEFOANT Spec Counsel to the Governor f.0::G IST.A::D LICl!IIt:C COMrM:Y.
ni New York State E:<ecut ive Char:bers ROSALIND M. GO!C:ON, CSD.
2 tlorld Trade Ct.nter 2500 01 - Countr/ Rond
- eu York,
M.
Y.
10047 Mineela, " Y.
11501 and anel 1:Ol;!:RT AI;!!M!S, r.SO.
lit *NTON & 11!!.l.1 A".S, r.SnS.
Attorney General 707 E. ::ain St.
2 t!orlil Trade Center Rich: on.l. Vire. inia.* 3219 New York, N. Y.
10047 Uy:
J..:.:e s E. Fa rn'i r.n,
F. s q..nu!
r.v :
tary 11. Gundrum, Er.q.
Kathy E. D. :teCic shy, ::.g.
Of Counsel ArtuRNEYS FOR COUNTY OF SUFFOLK:
- A 9 T I N 1;. ASHARE, ESO.
Gete.uns Menorial Highway llauppaur.e, N.Y.
11788 by:
Arlenc R. Lindsay, Esq.
of Counsel and KIRKPATRICK, LOCKilART, JOHNSON &
ilVTC!!ISON, ESOS,
1500 Oliver Bldg.
Pittsburgh, Pa. 15222 1;y :
David A.
Brownloc, Esq. and Kenneth M. Argenticri, Esq.
f Of Counsel ATTORNEYS FOR PLAINTIFF TOWN OF SOUTilM!PTON:
TWOMEY, l.ATHAM & SilEA, ESqs.
33 West Second St.
Riverhead, N. Y. 11901 By:
Stephen B. Latham, Esq.
Of Counsel
INTRODUCTION The State of New York (STATE),the County of Suffolk (COC::TY) and the Town of Southampton (TOWN), commenced separate decla atory judg-ment actions against the Long Island Lighting Company (LILCO), a public service corporation incorporated pursuant to the laws of the State of New York and primarily engaged in the production, distribution and sale of electricity on Long Island.
These actions arise from LILCO's atten,t to secure approval of its " utility" sponsored offsite emergency respense plan for its nuclear plant located at Shoreham.
The plaintiffs seek a declaration that LILCO does not have the legal authority to carry out its plan.
LILCO has moved to dismiss this action and the plaintiffs have cross-moved for summary judgment.
The Court, in order to address the issues contained in these motions, must examine the events leading up to the commencement of these declaratory judgment actions.
THE ATOMIC ENERGY ACT OF 1954 The Congress of the United States, cognizant of the need f5r new methods of producing energy, passed the Atomic Energy Act of 1954.
This legislation set forth the authority of the Federal government to negotiate the construction and licensing of nuclear production facilities in the United States (United States v. City of New York, 463 F.Supp. 604).
The Atomic Energy Commission REC) was designated by the Act to oversee the construction and operation of nuclear power plants.
This was to be accomplished by a two step licensing procedure.
First, the operator of a nuclear plant was required to obtain a construction permit from the AEC in order to build a nuclear facility.
Second, the operator after completion of the facility, was required to secure a license to operate the plant from the AEC.
The AEC, in the latter licensing procedurs.
was interested mainly in the onsite preparation for an emergency.
The licensing and regulating functions of the AEC was trcus-ferred to the National Regulatory Commission (NRC) by the Reorgani.ctien Act of 1974 (U.S.C. 55841 (f) ).
SHOREHAM In 1968 LILCO applied to the AEC for a permit to construct an 820 megawatt nuclear powered electric generating facility on property located at Shoreham in the Town of Brookhaven, County of Suffolk, State of New York.
The application was opposed by a private organization known as the Lloyd Harbor Stud and cross-examine LILCO'y Group.
The latter was permitted to intervene s witnesses at hearings before the AEC.
None of the plaintiffs herein were parties to the permit appli-cation proceedings.
However, the late H. Lee Dennison, Suffolk County Executive at the time, made a limited appearance before the licensing board in 1970 and spoke in favor of the issuance of a construction permit 1-
Construction ?ermit Hearings, Transcript 209, 211, 216, 1970).
The permit to construct a nuclear facility at Shoreham was issued by the AEC in 1973).
The approval of the Shoreham construction permit was the catalyst for the issuance of an order by the Suffolk County Executive to the appropriate COUNTY department to develop a " Response Plan for Major Radiation Incidents".
In 1975, representatives from LILCO and the COUNTY held a series of meetings in order to define the emergency planning role for each of them in the event of a major radiological accident at Shorchar These conferences culminated in the develo County's General Radiation Emergency Plan"pment of a plan known as "Suffoi The latter was approved by the Suffolk County Executive on August 30, 1978.
THREE MILE ISLAND The accident at the Three Mile Island Nuclear facility (TMI) liarrisburg, Pennsylvania in March 1979, demonstrated the need for im-at proving the planning for radiological emergencies.
The NRC, prior to the TMI accident did not condition issuance of an operating license for~a nuclear plant upon the existence of an adequate offsite emergency plan.
The TMI accident focused attention on the fact that nuclear accidents may endanger surrounding communities and require the mass evacuation of pecple in those communities.
- Congress, determined that no nuclear plantin response to the events which occurred at TMI, should be licensed to operate unless an adequate emergency plan could be drawn up and implemented for the area surrounding the nuclear facility and passed the NRC Authorization Act of 1980.
The NRC, in implementing the policy expressed by Congress, promulgated a number of regulations which included the mandatory submis-sion of an adequate radiological emergency response plan (RERP) by an applicant desirous of operating a nuclear power plant.
The RERP must des cribe in detail how nuclear emergencies will be handled within a ten mile radius plume exposure pathway emergency planning zone (EPZ and also within a fifty mile radius food ingestion pathway (45 Fed, Reg. 55, 402 August 19, 1980 and 10 C.F.R. $50.33(g) 1984).
An o perating license is issued only if the NRC finds that there is a reasonable assurance that adequate protective measures can be taken to protect the,rea surrounding the nuclear facility in the event of a radiological emerg,ency ( 10 C.F.R. 5 50. 4 7 (a) (1) 1984 ).
FROM PROTACONIST TO ANTAGONIST A careful study of the NRC regulations indicates that the emergency plans such as RERP, which were to be submitted by licensing applicants would probably have some imput having jur,isdiction over the area to be evacuated in the event of aby those govern nuclear emergency.
Executive John V. N. Klein and LILCO on DecemberThe " Memorandum of Unde 28, 1979 and the approval 2-
_ =,
j of the terms of said agreement by the County Executive Elect, Peter F.
Cohalan, gives credence to this analysis of the NRC regulations (see 4
letter from John V. N. Klein to Ira Freilicher, Vice President of LILCO, dated December 31, 1979).
representaihe b
$f etween LILCO and COUNTY etwee 8
n 1
bestmeansofdevelopinganacceptablebRI.
be e iscu
$e CO agreed o de elo me gency pl an C
in turn c nsented to paying the projected $245,000.00 cost of 4
l Legislature, in September 1981 Preparing the plan.
The County LILCOadvanced$150,00000asthe1[r8Cv d the terms of the agreement and in8tallment n the payment of 1
S245,000.00 The 1 1MidinfullonMarch 18, 1982, the
{
scheduled completio ate o ee h
On February 19, 1982, the COUNTY advised LILCO that the $150,000.
j advancement would be returned because of the " apparent conflict of interest in the acceptance of any funds from LILCO for the purpose of preparing an i
emergency plan (see letter dated February 19, 1982 from Lee E. Koppelman, Director of Planning for Suffolk County to LILCO).
On March Suffolk County Legislature passed a-resolution authorizing the Suffolk23, 1982 the j
Count be su mitted to the Legislature for its consideration (Resolution 1
262-1982)
On February 19, 1982, the COUNTY advised LILCO that the $150,000.
advancement would be returned because of the " apparent conflict of interest in the acceptance of any funds from LILCO for the purpose of preparing an emergency plan (see letter dated February 4
19, 1982 from Lee E. Koppelman, Director of Planning for Suffolk County toLILCO).
On March 23, 1982 the Suffolk County Legislature passed a resolution authorizing the Suffolk l
County Planning Department submitted to the Legislature for its consideration (Resolutionto prepare a new e i
262-1982) i The Planning Department, directive, submitted a RERP in December 1982.in accordance with the Legislative were held by the Legislature to consider the PLAN in January, 1983.A number of i
Legislature, with the concurrence of the County Executive, The Peter F. Cohalan decided not to approve, adopt or implement any RERP for Shoreham.
The reason given for this action was that
\\
"!Since) no local radiological emergency response plan for a serious nuclear accident at Shoreham will protect the i
health, welfare, and safety of Suffolk County residents,
(
. the County's radiological emergency planning process j
is hereby terminated, and no local radiological emergency plan for response to an accident at shall be adopted or implemented.
the Shoreham plant
[Slince no radiological emergency plan can protect j
the health, welfare, and safety of Suffolk County resi-i dents and, since no radiological emergency plan shall be adopted or implemented by Suffolk County, the County Executive is hereby directed to assure that actions taken i l
by any other governmental agenc~
be it State or Federal, are consistent with the decisich mandated by this Reso-lution."
'(Resolution 111-1983).
The Governor of New York, after reviewing the results of a study by the Marburger Commission, an independent committee appointed by the Governor to study the Shoreham situation, announced that no RERP for Shoreham would be adopted or implemented by the STATE.
THE LILCO TRANSITION PLAN LILCO, interpreting the COUNTY's refusal to adopt a plan as a derogation of its responisbility under Article 2B of the New York Execu-tive Law, submitted its own plan to the NRC.
The PLAN has been desig-nated "The Lilco Transition Plan".
(PLAN)
The PLAN describes in detail the actions which LILCO proposes to take in the event of a radiological emergency at the Shoreham facility.
The PLAN is contained in four volumes.
One volume is entitled "Shoreham Nuclear Power Station - Local Offsite Radiological Emergency Response Plan".
Two volumes are entitled "Offsite Radiological Emergency Response Plan".
The fourth volume is designated as " Appendix A - Evacuation Plan".
Highlights of the PLAN which would be utilized in the event of a radiological accident may be outlined as follows:
1.
The organization which is primarily responsible for imple-menting the PLAN is known as the Local Emergency Response Organization (LERO).
This group is composed of over 1,300 LILCO employees and con-sultants.
2.
The Director of LERO, a LILCO employee, would have the primar 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 Shoreham.
3.
Assessment of the severity of the nuclear accident.
4.
Determination of the action to be taken in order to protect the public.
5.
The declaration of an emergency.
6.
Notification of the public by the following methods:
a)
The activation of 89 fixed sirens, b)
The transmittal of messages on an Emergency Broadcast System (EBS).
c)
The transmittal of signals on tone alert radios.
7.
The to protective measures to be taken. instruction of the public by means of EBS evacuation of the EP7..
includinr selective and ger.cral i
S.
evacuate the public along specified routes. Implementation of traffic contro following:
These measures include the The conversion of a two mile stecch of a two-way roae a) into a one-way road, b)
The piecement of roadblocks to cordon off thc immedir-plant area.
c)
The placement of 193 traffic guides at 147 traffic control points throughout the EPZ.
These traffic guides, by the utilization of cones and hand signals, will channel traffic along the designated evacuation routes and discourage traffic from pro-coeding along different routes.
d)
The placement of LILCO vehicles, cones and flares in the traffic lanes before certain entrance ramps on four evacuation routes to cause traffic to move-into adjoining lanes in order to permit the continuous flow of traffic onto the routes from such ramps, The authorization of the use of road shoulders and s) the creation of lanes for turnpockets.
9.
The erection of permanent trailblazer signs along all evacuation routes.
10.
The removal of stalled cars and other obstacles frc= the roadway by tow trucks.
11.
The formulation of protective action recommendations uhich are to be broadcast to the public present These recommendations may include the following:in the ingestion expos way.
a)
The placement of dairy animals on stored feed, b)
The removal of dairy animals from fields to shelters.
contaminated c)
The withholding of foodstuffs and milk from the market.
d)
The change from the production of fluid milk to the production of dry whole milk.
e)
The washing or scrubbing of fruits and vegetables prior to consumption, f)
The suspension of fishing operations.
12.
The making of decisions and recommendations with reference to recovery and re-entry to the EPZ after a nuclear accident..
THE CATALYST FOR Tile INSTANT PROCEEDING The Atomic Safety and Licensing Board (ASLB), an adminin rative panel of the NRC, has been and still is in the process of conducting hear-i n;y to determine if the plan comnlies with NRC standards and is capal.ls :f being implemented.
LILCO has represented to the NRC that it may lawfully imp!crcnt its PLAN and that neither State nu Federal law prevent LILCO from perform-ing the functions described therein.
The STATE, COUNTY and TOWN have advised the NRC that LILCO lacks the legal authority to carry out 1.s plan.
These governmental bodies have filed ten "1cgal contentions" with the ASLB setting forth their positions on the lack of 1cgal authority by LILCO to implement its PLAN.
The Federal Emergency Management Agency (FEMA), the Federal body charged with the initial reviews of RERPS, has advised the ASLB tha-it cannot determine whether the LILCO PLAN can be implemented until the legal authority issue has been resolved (see Letter of Richard W.
- Kreiner, Assistant Associate Director, Division of Emergency Preparedness and Engineering Response, NRC).
The Chairman of the ASLB, after listening to all sides end considering FEMA's views, determined that the ten legal contentions filed by the plaintiffs herein present issues of New York State Law and he urged the parties to get a resolution in the State Courts (Transcript ASLB January 27, 1984 p. 3675).
On March 7, 1984, separate actions seeking a declaration that LILCO did not have legal authority to execute its PLAN was commenced by the STATE and COUNTY in the New York State Supreme Courts.
The COUSTY's complaint alleges that LILCO's implementation of its PLAN would be un'.aw-ful, illegal and a usurpation of the police powers of the STATE.
The COUNTY specifically mentioned that the execution of the PLAN would violate the New York State Constitution, the Municipal Home Rule Law and the Executive Law.
The STATE similarly alleged that LILCO is precluded from exercising the functions mentioned in the PLAN.
In addition, the STATE cited that the implementation of the PLAN would be violative of the Transportation Corporations Law, the Business Corporations Law, the Vehicle and Traffic Law, the Public Health Law, the Agricultural and Markets Law and the Penal Code.
LILCO did not serve an answer but immediately meved to dismiss the actions on the grounds that the Court did not have subject matter jurisdiction and the complaints fail to state a cause of action.
LILCO, before any action could te taken with reference to its motion, removed the declaratory judgment actions to the Federal District Court in April 1983.
It claimed that the challenge to its legal authority presented a question of federal law that was within the original juris-diction of the federal courts.
The STATE and COUNTY filed motions for a remand of their actions back to the New York State Supreme Court.
The Federal District Court ruled that LILCO's federal law claims and its invoca-1 _
tion of the federal preemptio: argurent een:v i tuted. iii rr y that e.mid be raised in a st.::e t (c. - s f.
t ecu ;;
ro;;cedin: v oi
..v.
t of Foifolk v.
ij lpu ::c a.
' I c.,
r.
CV-Sa 1218, CV-84-1495, l.9 N.Y.,
. inn..
On Augu:it 14, 1934 L'
157 ] ?.~.:
8 TAT.:
this Court vith a aad COU::~.Y a.1 J enu were con:.c i t...m,
t he TOWN in !!ay 19S4: tr:i1nr act ion for d. c i..itory j ud:,nent in cen..e n e s :! 1.,.
1.1 1.;'O e". e... i:: r.c ien t e di
.i:
the camcluint:
, r o u r. h i h.e thi, s'our. d e c :. n.' t have ru b.; c t
- attm-
'e
- .e j u:.t. e i.:b !,
e.*n ! ro.
sy i:. oresen!
jurit, dict:on !.e..
crio e o f
..e lon.
.md the complaial-fa i' to
- .:te a Jt'.:T1 C1 AB1 " CONT::0V!'.RSY'l 1.11.c0 r:.t i n t a i n s that na real di:.; ute e::ist :
h
.1
..i:h rity to act in the vent of an e
.n,"i c e iu ;e :
cence rn i er. i t...
1 i.. :.. ars b.we.
r.iaint:f.
u 1 a "hyl.ethetieal :e.nario" th". will ie.er ect=
.s
. l. i t nothet ical.ecaaria", accordinit to 11!.C0 is t h e the ut.'i " J.:
will r.upond to a radiological emergency at Sh o rc h '.m.
claims that "in fact of an actual er.iercency atNew York and Suffolk Ccunty wou;d res evsnt the Shoreha " and thus the "hypothe:iclii
.ct ua r i.." in the con:plai n t th.:t "Lilce alone would perform thc acticities" is =cet.
contested 1.l LCO * : c' aracter1:at ion cf the cemnlaintr.
a hypothstical scenarie is without any b.isin in fact is bein
- b. sed on a and can on;;ly be attri-Lute.! to "uishful t hink ing".
One does not have to be a genius to ascer-tain that the is t:ue presented by these actions is the legal authority c.f f.l!.C0 t o vs.eent e the PIAN and not whether the STATE or COU cill not respend to a radioloc.ieal emerr,ency at Shoreham.
What con.stitutes a justiciable' controversy?
The neccesary ela.ent3 of a justici.ible controvery are a icp. ally protected 2nterest and a present dispute (Davis Construction Corn.
~
- v. Coun:v of Suffolk, 1 12 M i.c e..' d 6 5 2,.'. 4 7 N. Y. S. 2 d 3 5 5, aff'd. 'iTA. D. 2T8 G, 4 6..
- .... s..:d
$19; Board of Co-Onerative Educational Ser" ices. Nassau Coun:v v.
ColdiE~,~~ W A.D.2d $ 7 328 N.Y.S.2d 933.
These elements are proent in Ehe instant matter.
their governmental powers are notThe plaintiffs have an interest in insuring that usurped by a private corporation.
LII.CC claims that it has a right to exercise the functions mentioned in the ILAN.
How can anyone say that a bona fide controversy does not exist?
The Court is Of the opinion that the declaratory judgment action is the best following language of the Court of Appeals in the case of N Interest Research Grouo, Inc. v. Carev, 42 N.Y.2d 527, 399 N.Y.S.2d 621 at page 623:
"...The need for judicial intervention is obvious when because of the actions of one of the parties, a dispute arises as to whether there has been a breach of duty or violation of the law.
Then the courts can declare the rights and obligations of the parties, and if a breach is found, compel compliance, order appropriate action to be taken. award damages or otherwise 7
That is the traditional, but r.o t the only way in which a genuine legal dispute may arise or be resolved by the courts.
For instance, when a party contemplates taking certain action a genuine dispute may arise before any breach or violation has occurred and before there is any need or right to resort to coercive measures.
In such a case all that may be required to insure complian cc with the law is for the courts to declare the rights and obligations of the parties so that they may act accord-ingly.
That is the theory of the declaratory judgment actions authorized by CPLR 3001 (Janes v. Alderton Dock Yards, 256 N.Y. 298, 176 N.E. 401; Siegel, Practice Commentaries. McKinney's Cons. Laws of N.Y., Book 7B, CPLR 1001, pp. 355 357; 3 Weinstein Korn Miller, N.Y. Civ.Prac.,
par. 3001.0_'; Borchard Declaratory Judgments, 9 Brooklyn L Rev., pp.1 3).
PLAN is real and present.Yhe controversy concerninc LILCO's legal author it s Resolution of the dispute will determine what the police powers of the STATE entail and if those powers have been usurped by LILCO's PLAN.
the PLAN will have a significant bearing on its application fcr an ment operating license at Shoreham.
The interests of the parties are clearly stake in this proceeding.
at The Court of a justiciable controversy which is ripe for a judicial determinationenvision a bette can not in a declaratory judgment action.
THE ISSUE LILCO, as previously mentioned, moved to dismiss the comelaints pursuant to Section 3211(a)(7) plaints fail to state a cause of action.of the CPLR on the ground that the com-LILCO contends that (1)
New York law does not prohibit it the complaints; and (2) from performing the activities mentiened in
- allege, if state laws "were construed as plaintiffs States Constitution and by federal statues and regulations."they The Court, at the behest of the parties, issued an order dated October 4, legal authority to implement 1984 which limited the issue to be decided to that of The parties have submitted the pleadings,its PLAN under the laws of th York.
trans cripts of their oral arguments before the Court, affidavits, the PLAN, volumino documents and there is no need to hold a hearing as none o,us briefs and t
facts are in dispute.
f the material t
and the issue involved is described as follows:A synopsis of the posture of t 1
LILCO, in order to obtain a license to operate its Shoreham facility, must submit a plan for responding to a radiological accident which the NRC finds is adequate and capable of being implemented.
has submitted a PLAN to deal with a radiological emergency at Shoreham.
LILCO The plaintiffs have challenged LILCO's legal capabilities to perform the l l
m
o functions contained in the PLAN and maintain that the PLAN amounts to a uvurpation of the STATE's police powers.
The proposed functions are undisputed and set forth at great length in LILCO's four volume PLAN.
k,1ality of LILCO's performance of these functions under the law.s The vf the State of New York is before this Court for a resolution.
_THE POSITIONS _
LILC0's basic premise for its view that it has a right to implement the PLAN under the laws of the State of New York is found in the following statement contained in the PLAN at P 1.4-1.8:
"(N)othing in New York State law prevents the utility from performing the necessary functions to protect the public.
To the contrary, Article 2-B of New York State Executive Law, Sec. 20.1.e, makes it the policy of the State that State and local plans, organization arrangements, and response capability "be the most effective that current circumstanes and existing resources allow." "
This argument has been succintly advanced by counsel for LILCO in his statements before this Court on January 15, 1985 and transcribed pages 26 an~d 27 of the minutes in the following concise manner:
at "Under the LILCO view, as a private citizen or as a corporate citizen, any action that I want to take of any type that is 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, it's part of my rights under the New York constitution."
LILCO, in addition to this argument, also maintains that its activities under the PLAN do not amount It bases its contention on two grounds. to an exercise of police power.
First, the PLAN "does not propose to, and will not, use force or the threat of force to compel obedience to anyone or anything."
Second, the essence of the STATE's police power hibited activity" and LILCO is simply " planning for and respo radiological emergency" and "not regulating an emergency response."to a The plaintiffs' argument is rather simple.
They maintain that i
l the activities which are to be performed by LILCO employees as delineated in the PLAN are governmental functions and amount to a usurpation of the STATE's police power and thus is prohibited under New York State Law.
_ 9_
i l
THE STATE'S POLICE POWER A resolution of the controversy Screin necessarily involves a discussion of the source, nature and exercise of the police power of the STATE.
(a)
THE SOURCE In our system of government, the police power is an inherent attribute and perogative of state sovereignty (Teeval Co. v. Stern, 301 N.Y. 346, Cert. den. 340 U.S. 876).
The Tenth Amendement to the Constitution of the United States specifically provides that the exercise of the police power for the general welfare of the public is a right reserved to the States (Brown v. Brannon, 399 F. Supp, 133, aff'd, 535 F 2d 1249).
This principle has been affirmed by our Courts even before the turn of the 1900's (See Nunn v. People of Illinois, 94 U.S. 113).
(b)
THE NATURE One cannot deny that the police power is the STATE's most essen-tial power (People v. Bibbia, 262 N.Y. 259, aff'd, 291 U.S. 502).
Nor can one dispute that the protection and safety of persons and property is unquestionably at the core of the STATE's police power (Kelly v. Johnson, 425 U.S. 238).
Our courts have continually and consistently ruled that the protection o'f the public health and safety is one of the acknowledged pur-poses of the police power of the STATE (Adler v. Deegan, 251 N.Y.
467; Yonkers Community Development Agency v. Morris, 37 N.Y.2d 478, 373 N.Y.S.2d 112).
(c)
THE EXERCISE Who may exercise these police powers?
Does a governmental sub-division such as a county or town have an inherent right to exercise these powers?
Does a corporate entity such as LILCO have an inherent right to exercise these police powers?
The acceptance of the cardinal rule, that the police power is ar inherent perogative of the STATE, can only lead to the conclusion that this power can only be exercised by the STATE or by governmental subdivisions upon whom the State Constitution or State laws confer such power.
In fact, municipal corporations, who are creatures of state law and whose sole purpose is to perform governmental functions, have no inherent authority to exercise police powers.
These municipal corporations may only exercise the police power which the State Constitution or the State Legislature con-i fers upon them (Rochester v. Public Service Commission, 192 Misc. 33, 83 N.Y.S.2d 436, aff'd. 17 A.D.
172, 89 N.Y.S.2d 545, aff'd.301 N.Y. 801; People ex rel Elkind v. Rosenblum, 184 Misc. 916, 54 N.Y.S.2d aff'd.
- 269 A.D. 859, 56 N.Y.S.2d 526).
POLICE POWER = POLICE POWER i
l A brief study of the PLAN, as outlined by this Court, indicates j
the basic activities LILCO intends to perform in the event of a radiolocical l
accident at Shoreham...
l 1
It intends to declare an emergency and advise citizens of the steps they should take to protect themselves.
a major, full-scale evacuation of a 160 square mile area.LILCO intends to manage It intends to i close public highways, re-route traffic and direct the flow of traffic.
The utility intends to decide upon and oversee steps to secure public health within a fifty mile radius of the nuclear facility.
LILCO intends to oversee evacuation centers for more than 100,000 people.
It intends to decide when and in what in previously contaminated areas. fashion citizens may return to their homes LILCO maintains that these actions do not functions and that its proposed " management" of the evacuation of theinvolve gove residents of Suffolk County would not involve an exercise of the STATE's police power.
What is the basis of LILCO's assertion?
Two reasons are advanced by LILCO for its stance.
does not propose to use force or the threat of force to compel obedience First, LILCO to its recommendations.
- Second, is regulation and the ability to incarcerate persons who engage in hibited activity.
logical emergency in carrying outLILCO is merely planning for and responding the functions in the PLAN and not lating an emergency response.
regu-The position taken by LILCO is untenable.
The fact that LILCO will not issue traffic tickets or arrest someone is of little significance The exercise of governmental functions does not necessarily require the imposition of penalties as indicated by the following language in the case of Branden Shores, Inc. v. Incorporated Village of Greenwood Lake, 68 Misc.2d 343, 325 N.Y.S.2d 957 at page 960:
"The term " police power" has often been defined as that power vested in the Legislature to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of subjects of the same.
Whatever affects the peace, good order, morals and health of the community comes within its scope."
Furthermore, the bold statement that the PLAN is devoid of any coercion is incorrect.
Does turning a two-way street into a one way stree leave motorists free to drive as and where they wish?
Likewise, does l
parking LILCO vehicles in traffic lanes on the Long Island Expressway in critical locations afford motorists a freedom of choice?
Is a motorist thus compelled to travel in accordance with the route set out in the PLAN?
Does LILCO REALLY believe that its declaration of an emergency and because the directive will notevacuation on the emergency broadcast channel is a be enforced by a threat of incarceration?
LILCO's regulation theory is likewise without merit.
that It claims its own actions do not " regulate emergency responses" but rather consist of " planning" for and " responding" to a radiological emergency.
l,
l i
1.TT.co, in " planning" for a rmitolonical emern.ncy would in eireri he performing functions that are governmental in nature.
In " respond.ng" to a radiological emergency, the utility would undertake to perfccm acti.
vities that are reserved to the STATE and its political subdivisions.
In fact, the Courts of the State have recognized that the func.
tions LILCO intends to perform fall within the STATE's historic police power.
See, eg. Yonkers Community Development Acency v. Morris, 37 N.Y.2 478, 373 N.Y.S.2d 112 (1975), app. dismissed, 423 U.S. 1010 ( iiri 3 )
(matters concerning the public health, safety and welfare are within the State's police power): Royce v. Rosasco, 159 Misc. 236, 287 N.Y.S.
692 (1936)
(abatement of Bielmeyer, public emergencies is within State's police power).
People v.
54 Misc.2d 466, 468-69, 282 N.Y.S.2d 797 (1967)
("It has long been recognized that the power to regulate and control the use of public roads and highways is primarily the exclusive prerogativc of the States."); Tornado Industries, Inc. v. Town Board of Oyster Bay, 187 N.Y.S.2d 794 (1959) (control of traffic is a matter within the police poucr); City of Utica v. Water Pollution Control Benrd, 6 t.pp.Di.
340, 177 N.Y.S.2d 47 (1958), aff d., 5 N.Y.
2d 164, 152 ".Y.S.2d 38' (195 (control of water pollution is within the public power);
e cc. ;c erallf, N.Y. Const. Art. I, sec. 6, notes 681-909 (McKinney)).
No amount of semantics can change the true meaning of th[
activities which LILCO proposes to perforn in the event o f.,
r.- M a l c - i c c '.
accident at Shorcham.
No amount of. inh can cever up or blo:
C.
fact that 1.11.CO's " intended func tions" are inherc" -I y
~/e/rs n:/:
-c and fall clearly within the ambit of the STATE's police powcr THE DELEGATION OF POLICE PO.?ERS Does LILCO have any statutory authority to ex;ccirc tw W: D contained in.the PLAN?
How are the STATE's police p u,cc.s de le;;...
an of these powers been delegated to LILC07 (a)
TO LOCAL COVER:"MENTS The COUNTY, TOWN and other local governmentnl subdifis un:
-a been delegated "nearly the full measure of the STATE's pol e ;n o r -
l the State Constitution and various State statutes" (iioc t ne r C'.-_
of Erie, 497 Supp. 1207).
Article 9, Section 2 of the New Yerh~l;.
Constitution is the primary source for the authority of local covern cnts to exercise the police power.
Section 10.la(12) of the Municipal Home Rule. Law expressly delegates police power to governmental units by con-l ferring authority upon them to " provide for the well-bejng of persons or property therein."
Thus, these constitutional and statutory provision:
l in of themselves, authorize the COUNTY and TOWN to exercise the FTATE s police power.
l (b)
TO PRIVATE CORPORATIONS The Court has been unable to find any provisions in the State Constitution or State statutes which authorize LILCO or any othe-rivacc corporation to exercise any portion of the STATE's police power.
l In fact, any attempted delegation of police powel to LILCO wouh. ::.:r_.0.
l 12 -
1 l
I
to an unlawful delegation of governmental powers (See 20 N.Y. Jur.
2d,
" Constitutional Law" $183).
A governmental unit can not bargain away its police power to a private party or organization (Beacon Syracuse Associates v. City of Syracuse, 560 F. Supp. 188).
Governmental functions and responsibilities cannot be surrendered by contract where police power, public safety and welfare are involved (Patrolmen's Benevolent Ass'n.
City of New York, 59 Misc.2d 556, 299 N.Y.S.2d 986).
v.
CORPORATE POWERS LILCO is nothing more than a creature of the STATE.
Corporations, unlike natural persons, possess only those powers that have been conferred upon them by the state of their incorporation (14 N.Y. Jur. 2d " Business Relationships, $340).
Corporate powers do not exist merely because they are not expressly prohibited.
A valid basis must be demonstrated for the existence of a claimed contested power under the laws of the state under which the corporation has been created.
(See 6 Fletcher, Cvelopedia of Corporations $2476 - 2486, Rev. Perm. ed. 1979).
The express powers which LILCO possesses are set forth in Section 11 of the New York State Transportation Corporations Law and.Sec-tion 202 of the New York State Business Corporation Law.
What express-powers does LILCO have as a direct result of these statutes?
Section 11 of the Transportation Corporation Law grants electric corporations and gas and electric corporations the power to generate, ac-quire and supply electricity for heat or power to light public streets, places and buildings.
In addition, such corporations are empowered to acquire and dispose of necessary machines and to transmit and distribute electricity through suitable wires and other conductors.
Such corpora-tions can use streets, public parks and public places to place their poles, pipes and fixtures, but only with the consent of the municipal autheri-ties.
These corporations also have power to acquire 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 legislative grants of power and with the consent of municipalities.
Section 202 of the Business Corporation Law sets forth sixteen general powers which are common to all corporations incorporated pursuant to the laws of the State of New York.
For example, the power to sue and be sued, to hold property and to make contracts.
Thus none of these express powers bestow upon LILCO the authority to implement its PLAN.
Nevertheless, LILCO is undaunted by its inability to point to a specific grant of power in either the Transportation Corpora-tions Law or the Business Corporation Law which would lend credence to its claimed authorit the PLAN.
Instead, LILCO seeks to rely on
" implied powers"y to implement which existed at common law and is now codified in Sec-tion 202 (a)(16) of the Business Corporation Law.
The latter provides that a corporation has "all powers necessary or convenient to effect its corporate purposes."
LILCO states that one of its corporate purposes is to create and sell electricity and thus it has the power to build or oper-ate a power plant such as Shoreham..The operation of Shoreham, according to -
LILCO, is conditioned upon the existance of an adequate offsite emergency
- plan, Thus LILCO reasons that it has the implied power to implement the PLAN in furtherance of its corporate powers.
LILCO's view of the scope of implied corporate power has no limit.
Furthermore, it has no support in the cases which LILCO has put forth as supporting its theories.
For example, it cites the following four cases which helde 1.
That a corporation has implied power to make charitable contributions for the benefit of the corporation and its employees (Steinway v. Steinway & Sons, 17 Misc. 43, 40 N.Y.S.
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 Heims Estate, 166 Misc. 931, 3 N.Y.S.2d 134, aff'd. 255 A.D. 1007, 8 N.Y.S.2d 574).
3.
That a construction company may also perform related professional engineering services (John B. Waldbilling, Inc. v. Gottfried, 22 A.D.2d 997, 254 N.Y.S.2d 924, aff'd. 16 N.Y.2d 773, 262 N.Y.S.2d 498).
4.
That a corporation may make payments under a "non-comp ~ete agreement, provided such payments do not constitute a prohibited restraint of trade (Leslie v. Lorillard, 110 N.Y. 519).
This Court can not fathom how LILCO expects to support its clair of authority to declare an emergency and assume responsibility for the evacuation of over 10,000 people on the basis of these cited cases.
Likewise, the Court is at a loss for LILCO's reliance upon a 1901 case, City Trust Safe Denosit and Surety Co. of Philadelohia v.
Wilson Manufacturing Co.,
58 A.D.
271, 68 N.Y.S.
1004 for the proposition that "it is difficult to say in any given case that a business act is not within the powers of a corporation."
Ironically, the Citv Trust case did not even involve New York State Corporate Law.
Defendant, a West Virginia corporation, sought to avoid an indemnity agreement previously given.
It argued that its act was "ulta vires" under the laws of West Virginia, but it failed to offer any evidence as to the West Virginia Laws.
The court 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 er the declara-tion of a public emergency constituted a " business act" as the term was employed in the City Trust case?
LILCO is mistaken in its view that the power to undertake actions necessary or convenient to effect its corporate purposes has no bounds.
A corporation lacks power, express or implied, to engage in activities which are contrary to public policy (State of New York v. Abortion Information Agency, Inc., 37 A.D.2d 142, 330 N.Y.2d 927, aff'd. 30 N.Y.2d 779, 339 N.Y.S.2d 174).
The implemntation of the PLAN amounts to an l
l __
I exercise of the police power.
The latter can only be excrcised by the STATE and upon proper delegation, the municipalities.
The exercise of such power by LILCO would accordingly violate the public policy of this state.
THE EXECUTIVE LAW ARTICLE 2B LILCO claims that the activity which it proposes to take under its PLAN is directly supported by New York State Executive Law, Article 2B.
This law is entitled " State and Local Natural and Man-Made Disaster Pre-paredness" and is found in Sections 20 - 29 of the Executive Law.
What was th'e intention of the Legislature in enacting this law?
What does the law provide.
Article 2B of the Executive Law involves the distribution of powers held by the Executive Branch of State Government.
It clearly expresses the intention of the Legislature to confer the STATE's power to plan for and to respond to disaster situations solely upon State and local government.
It establishes a framework for state and local co-operation in planning and preparing for emergency responses to all kinds of disasters including nuclear accidents.
Thus, this Statute creates a state agency, the Disaster Preparedness Commission (DPC) to coordinate state and loca1 emergency responses.
This legislation authorizes each county and city to plan for disasters and delegates authority to STATE and local officials to effectuate these functions.
The Court, no matter how many times it has read and re-read Article 2B, could not find any authorization for LILCO, express or implied, to exercise the STATE's police powers in emergency situations.
What is the basis of LILCO's claim that Article 2B of the Executive Law authorizes it to implement its PLAN?
LILCO rests its claim of authority upon two sub-paragraphs, Section 20-1(a) and Section 20-1(e) contained in the statement of policy that constitutes the preface to Article 28.
Section 20 of Article 2B of the Executive Law provides as follows:
"$20.
Natural and man-made disasters; policy, definitions 1.
It shall be the policy of the state that:
local government and emergency service organizations a.
continue their essential role as the first line of defense in times of disaster, and that the state provide appro-priate supportive services to the extent necessary; b.
local chief executives take an active and personal role in the development and implementation of disaster prepared-ness programs and be vested with authority and responsibil-ity in order to insure the success of such programs; state and local natural disaster and emergency response c.
functions be coordinated in order to bring the fullest pro-tection and benefit to the people; --
d.
state resources be organized and prepared for immed-iate effective response to disasters which are beyond the capability of local governments and emergency service organizations; and state and local plans, organizational arrangements, e.
and response capability required to execute the provisions of this article shall be the most effective that current circumstances and existing resources allow.
2.
As used in this article the following terms shall have the following meanings:
a.
" disaster" means occurrence or imminent threat of wide spread or severe damage, injury, or loss of life or property resulting from any natural or man-made causes, including, but not limited to fire, flood, earthquake, hurricane, tor-nado, high water landslide, mudslide, wind, storm, wave action, volcanic activity epidemic, air contamination, blight, drought, infestation, explosion, radiological accident or water contam-
- ination, b.
" state disaster emergency" means a period beginning with a declaration by the governor that a disaster exists and end-ing upon the termination thereof.
" municipality" means a public corporation as defined in c.
subdivision one of section sixty-six of the general construc-tion law and a special district as defined in subdivision sixteen of section one hundred two of the' real property tax law.
d.
" commission" means the disaster preparedness commission created pursuant to section twenty-one of this article.
" emergency services organization" means a public or pri-e.
vate agency, organization or group organized and functioning for the purpose of providing fire, medical, ambulance, rescue housing, food or other services directed toward relieving human suffering, injury or loss of life or damage to property as a result of an emergency, including non-profit and govern-mentally-supported organizations, but excluding governmental agencies.
f.
" chief executive" means :
(1) a county executive or manager of a county; (2) in a county not having a county executive or manager, the chairman or other presiding officer of the county legislative body; (3) a mayor of a city or village, except where a city or vil-lage has a manager, it shall mean such manager; and (4) a supervisor of a town, except where a town has a manager, it shall mean such manager.
J 16 -
This Section states general STATE policies including the proposi-tion that " local government and emergency service organizations continue their essential role as the first line of defense in times of disaster" and that the STATE shall provide appropriate supportive services to the extent necessary.
This policy ctatement, contrary to LILCO's assertions, does not explicitly or implicitly authorize private corporations to exercise police powers in the event of a nuclear accident.
Section 20-1(a) acknowledges the role of private groups called
" emergency service organizations" in providing : services directed toward relieving human suffering, injury or less of life or damage to property" such as fire, medical, ambulance, food, housing and similar rescure ser-vices.
These private emergency service organizations have not been dele-gated in any way, shape, manner or form to the governmental functions which the PLAN contemplates.
The Legislature, if it intended to delegate the broad-scale powers LILCO claims, would have done so in clear explicit language in the substantive portions of Article 2B which presently only 3
confer these powers upon state and local governments.
CONOLUSION These declaratory actions which arise out of LILCO's attempt to secure approval of its utility sponsored PLAN clearly present a justi-ciable controversy and the complaints do state a cause of action.
The limited issue of LILCO's authority to implement its PLAN under the laws of the State of New York does not involve nay disputed questions of fact.
LILCO, as previously mentioned, intends to execute the PLAN solely with its own employees and intends to carry out activities which are inherently governmental in nature.
These powers have been solely con-ferred upon the STATE and its political subdivisions..
LILCO, a pricate corporation, is a creature of state law and only has chose powers which the STATE has conferred upon it.
These powers, express or implied, do not l
include the right to exercise governmental functions.
There is a paradox which is present in this controversy and involves the philosophy of the creation of our government.
In order to recognize this paradox, one must examine the philsophy of our founding i
fathers in creating our government.
The political ideas behind the Declaration of Independence and the Constitution were not the sole inventions of the founding fathers.
Franklin, Jefferson, Madison and other colonial leaders were learned and widely read men, steeped in the ideas of the English political phncsophers.
The most influential of these philosophers upon the founding fathers was John Locke (See Clinton Rossiter, "1787:
The Grand Convention",
[MacMillan, 19661).
Locke, an avid opponent of the divine right theory of government, l
out forth his ideas about rde creation, purpose and powers of government in his " Treatise of Civil Government" written in 1689.
His ideas, for l
the purpose of this discussion, may be summarized as follows:
i l
t
1.
Individuals originally existed in a state of nature.
Each individual had the right to do whatsoever was necessary for his preservation and the right to pnish those who commktad crimes against the laws of nature.
Locke called these rights the " supreme power".
2.
The weak were at the mercy of the strong in the state of nature.
Each individual, because of the situation, entered into a
" social contract" with every other individual and this social contract resulted in the creation of a civil society or community.
The "supre=e 1
power" is surrendered by each individual to the community.
3.
The community is created for the purpose of establishing a government, which is accomplished by means of a trust.
This means that government only enjoys a " fiduciary power".
Thus the community does not surrender the " supreme power but merely entrusts it to government.
4.
The powers of government are limited.
Government is acccu-able to the community.
The community, if government breaches its trust, had a right to " appeal to the heavens".
This latter phrase meant the rig of revolution (our founding fathers substituted the right to change governments by means of a free election for Locke's right of revolution).
What is the paradox?
The STATE and COUNTY would be breaching their "fiduci..ry" duty to protect the welfarc of its citinens if they permitted a private cern:
tion to usurp the police powers which were entrusted solely to ther by the community.
LILCO has to realice that thi.m is a government of law and not of men or private corporations (See John Adans " Draft Mas s a chuse t t s Constitution. Declaration of Richen. ART M7X. 17'9),
t On the other hand, the STATE and COUNTY maintain that they exercised their police powers in order to protect the ecmmunity in their i
determination not to adopt or impicment any emergency plan for'Shorehar because of the " impossibility" to have a " safe evacuation" in case cf a nuclear accident.
LILCO asserts that this position is nothing more thcr a " sham" and amounts to a breach of the STATE's and COUNTY's duty to prt-tect the citizens in case of a nuclear accident at Shoreham as envisioned by Article 2B of the Executive Law.
LILCO is in effect reminding the STATE and COUNTY governments that "Non est Princeps Super Leges, Sed Le:u Supra Principem" (The Prince is not above the Laws, but the Laus above the Prince, Pliny the Younger, " Panegyric of Trajan" Sec. 65 100 A.D.).
There is no need to' resort to a revolution o/ the usurpation c:
governmental powers by LILCO if there has in fact been a breach of a trus-by the STATE and COUNTY.
LILCO can test this matter in another tribuna'.
by commencing an action in the nature of a writ of mandamus or in the are:
of public opinion which manifests itself by the results of an election.
Settle judgment on notice.
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SUPPEME COURT OF THE STATE OF NEW YORK'. "h,,#
-- d
,.9v, D' f COUNTY OF SUFFOLA, MARIO M. CUOMO,
)
)
Plaintiff,
)
)
-against-
)
)
LONG ISLAND LIGHTING COMPANY,
)
)
Defendant.
)
)
Consolidated COUNTY OF SUFFOLK,
)
Index No. 84-4615
)
Plaintiff,
)
)
-against-
)
)
LONG ISLAND LIGHTING COMPANY,
)
)
Defendant.
)
)
TOWN OF SOUTHAMPTON,
)
PARTIAL
)
DECLARATORY JUDGMENT Plaintiff,
)
)
-against
)
)
LONG ISLAND LIGHTING COMPANY,
)
)
Defendant.
)
)
Plaintiff, Mario M. Cuomo, having filed a Complaint for Declaratory Judgment on March 8, 1984 in the Supreme Court for the State'of New York, Albany County, seeking a declaration (i)
~~
that Long Island Lighting Company's ("LILCO") implementation of an offsite emergency response plan (the " Transition Plan")
for its Shoreham Nuclear Power Station would be in violation of New
\\
York State law and (ii) that LILCO lacked legal authority to implement the Transition Plan; and Plaintiff, County of Suffolk, having filed a Complaint on March 8, 1984 in the Supreme Court of New York, Suffolk County, 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,'
e 1984; and LILCO having removed both actions to the U.S. District Court for the Eastern District of New fork; and Plaintiffs thereafter having moved to remand both actions to the New York Supreme Court; and By Memorandum and Order dated June 15, 1984, the U.S.
District Court for the Eastern District of New York (Altimari,'
J.) having granted Plaintiffs' Motion to Romand; and Plaintiff, Town of Southampton, having filed a Verified' Complaint on May 16, 1984 which sought a declaration (i) that 2-
I r
I e
i LILCO's implementation of its Transition Plan would be unlawful and illegal under the Constitution and gaws 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 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 Southampton having been consolidated in the Supreme Court of the State of New York, Suffolk County, as Consolidated Index No. 84-4615; and LILCO having renewed its Motion to Dismiss Plaintiffs' l
actions on August 13, 1984 pursuant to Section 3211(a)(2) and (7) of the CPLR on the ground that (i) the Court lacked subject matter jurisdiction because the actions did not present a justiciable controversy and (ii) the Complaints failed to state a cause of action because New York law did not prohibit LILCO from performing the functions set forth in the Transition Plan; and
,,T-~n Plaintiffs having filed a Cross Motion pursuant to Sections 2215 and 3211(c) of the CPLR re, questing that the Court (1) treat LILCO's pending Motion to Dismiss as a motion for Summary Judgment and (ii) grant summary judgment in favor of Plaintiffs; and All parties having entered into a Stipulation to make a part of the record in this case LILCO's Transition Plan (Revision 3) consisting of:
(1) a volume entitled "Shoreham 2 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 September 12, 1984 in support of their Cross Motion for Summary Judgment; LILCO having submitt6d the Affidavit of Matthew C.
Cordaro dated August 13, 1984 in support of its Motion.to Dismiss; and all parties have agreed in open court that (i) for purposes of addressing the LILCO Motion to Dismiss based on the l
lack of a justiciable controversy, the Court could, if necessary, look to the pleadings and affidavits
- filed by the
s I.
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 purposes of resolving any material issue of fact which might exist as to whether LILCO, in implementing its proposed Transition Plan, would be undertaking actions which might be characterized as the exercise of compulsion, and therefore the exercise of impermissible governmental police power, the Court could look to the text of the Plan itself and the affidavits submitted by the parties, and (iii) that other; wise, there were no material facts in dispute with regard to issues presented by LILCO's Motion to Dismiss; and A pretrial conference having been held on September 18, 1985 for the purpose of determining which issues should be addressed in further briefs, with Plain. tiffs 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 authority under state law to carry out actions contemplated under the Transition Plan should be resolved prior to consideration of any other issues raised, t
including federal preemption; and By Order dated October 2, 1984, th, Court having e !
~
i determined that it would dispose of the issues presented N
separately and would first address the justiciable controversy issue and the issue of LILCO's legal authority under State law to carry c.ut 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 legal authority under State law to carry out its Plan; and
~
This Court having heard oral argument of the parties on January 15, 1985; and All parties having had a full opportunity to be heard, the Court, upon consideration of the.LILCO Transition Plan and the pleadings, stipulations, affidavits, briefs and arguments of the parties, having rendered a decision on February 20, 1985 denying Defendant's panding Motion to Dismiss and granting par-tial summary judgment in favor of Plaintiffs and against Defen-dant in each of the consolidated cases, and directing settle-ment of judgment; NOW, on motion of Martin Bradley Ashare, County Attorney, County of Suffolk, and KirkpatriAk & Lockhart, - -.
k l
1 Attorneys for Plaintiff, Suffolk County, Fabian G. Palomino, 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 objection of Hunton & Williams, Attorneys for LILCO, to the entry of this Partial Declaratory Judgment, such objection being duly noted, it is ORDERED, ADJUDGED AND DECREED; 1.
The Court declares that a justiciable controversy exists as to whether LILCO has legal authority under state law to execute the Transition Plan.
2.
The Court declares that by reason of operation of Executive Law Sections 22(3)(b) and (c), 23(7)(b) and (c),
28(1), 28(2)(a) and (b), 28-A; Penal Law Section 195.05; Public Health Law Sections 206(1)(k), 201(1)(r), 201(1)(1), 1110, 206(1)(a); Vehicle and Traffic Law sections 1110, 1114 1602; Section 30 of the Transportation Corporations Law;, and Agricul-ture and Markets Law Sections 16(24), 16(27), (16(35), 71-L, 202-B, and by further reason of the police power inherent in the state and local government pursuant to New York State,
~
Constitution Articles III and 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.
i 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 and Town.
4.
The Court declares that New York State law, including specifically Executive Law. Article II-B, does not delegate the State's police power to LILCO empowering LILCO to implement the Transition Plan.
5.
The Court declares that LILCO, as a corporation, possesses only those powers that have been conferred upon it by the law of the state of its incorporation.
The New York State Transportation Corporation Law and the New York State Business
"'~
Corporation Law do not expressly or impliedly authorize or em-power LILCO to exercise governmental powers in implementing the Transition Plan.
8-
1 e-l 1
6.
Defendant's Motion to Dismiss Plaintiffs' Complaints pursuant to CPLR 3211(a)(2) and (7) is hereby
~
DENIED; 7.
Plaintiffs' Cross Motion to convert Defendant's 1
Motion to. Dismiss to a Motion for Partial Summary Judgment is hereby GRANTED:
8.
The Court declares that this judgment is a partial declaratory judgment that does not resolve all the issues in this litigation.
Judgment is expressly reserved as to any de-fanses that may be raised, including federal preemption.
A fIl #'A 'I
Defendant shall within twenty (20) days?em #y 9.
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emmenf of this Partial Declaratory Judgment :==- * '"'.' S rg / f.,
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e ENTER:
N Justice of the Supreme Codet Suffolk County Judgment entered this day of 1985
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NAR 25 585 Clerk IUII8118 A. Xinsella Clerk cf Suffolk County 9
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ATTACHMENT 3 I
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ATTACHMENT 3 STATE OF NEW TORE EXECUTIVE CHAMBER MARIO M. CUOMO, GOVERNOR Press Office 212-587-2126 418 474 8418 FOR RELEASE:
IMMEDIATE, TUESDAT DECEMBER 20, 1983 STATEMENT BT 00VERNOR MARIO M. CUOMO Tomorrow, the State will submit the attached brief to the Atomic Safety and Licensing Appeal Board to contest the conclusion that permission to load low power fuel may be l
- granted, even without an adequate and implementable evacuation plan and despite the view of the Licensing Board.
that there is no " reasonable assurance" that an emergency off-site preparedness plan will.ever be approved.
In the near future the State will also participate in the Atomic Safety and Licensing Board hearing on off-site emergency planning issues.
The State vill oppose any grant i
of a license to operate the plant predicated solely and en'tirely on the LILCO developed and LILCO implemented plan for evac.uation.
I have said repeatedly I believe the LILC0 plan does not reasonably assure safe evacuation.
A brief review of some of the underlying circumstances makes the significance of these positions clear.
The Federal government has exclusive jurisdiction over the question whether Shoreham is safe to operate and can therefore be licensed to open.
The applicable regulations require an evacuation plan that is implementable and that will assure the quick and effective movement of the population out of the zone of danger in the event of an accident that threatens to increase substantially the radiation normally emitted by a nuclear power plant.
The adoption of the Federal evacuation rest $1ations was based on the reality that even under ideal circumstances, the operation of a nuclear power plant poses a clear and always present danger of a radiological accident.
Nowhere do they suggest that the efficacy of evacuation preparations should be a relative requirement, affected by economic or fiscal factors.
The law -- as it should -- puts saf ety first and does not allow financial considerations to compromise what is irreplaceable - life and health.
4
- more -
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i
. No evacuation plan has yet been certified as adequate and implementable.
The* County of Suffolk has said evacuation is im~possible and therefore it has submitted no plan.
The State does not have the resources, by itself, to supply the wherewithall that would be required.
LILCO has offered a plan, which would be implemented by its employees, by which it would attend to evacuation by itself.
The State opposes the notion that this LILCO plan is approvable.
Its employees lack the capability and the legal power to implement it.
Indeed, even in conjunction with the County's active pa.rticipation, the Sta.te might not be able to give reasonable assurance of evacuation.
Of course, if the plant were to be ope. rated and a misadventure were to occur, both the State and the County l
would help to the extent possible; no one suggests otherwise.
How ever, government's obligation to respond to a catastrophe should not-be used as an excuse for inviting the peril.
Despite all of this, the Nuclear Regulatory Commission his ruled that its ASLE can approve a request fo~r low power loading without any certified evacuation plan being in j
existence.
The brief to be submitted by New Yorig tomorrow is part of the appeal from that decision.
If the State is successful in its opposition, the Shoreham plant will not be allowed to open because it has not l
met the basic safety requirements set out in the Federal law and regulations.
Because the health and safety of our people must come first, we will persist in these objections until we have succeeded or exhausted our legal opportunities.
It should be noted that my strong feeling as to the inadequacy of the evacuation plans and forces now available
} prompted me to ask Congress for legislation that would supply us with the resources to make evacuation at all the State's nuclear facilities more reasonably achievable.
For reasons I y do not fully understand, that legislation has not been vigorously supported by the editorial boards and business interests that advocate LILCO's desire to open Shoreham despite all its obvious dangers.
- more -
. Whatever occurs with the two pending proceedings involving the evacuation plans, it is clear that Shoreham is Moreover, it is increasingly clear a long way from opening.
that LILCO lacked the experience and, skill required to build LILCO's construction probless' may a plant like this one.It is also possible -- some say likely --
never be solved.
that even if Shoreham is licensed, its operations will be interrupted frequently with increasing costs to rate payers.
That would mean that the people would have to pay the price i
for LILCO's deficiencies repeatedly and extensively for years to come.
Notwithstanding the complexity surrounding this i
situation and the 'inhomogeneous" quality of its report, some things were not substantially disputed by the Marburger panel.
Among them were the following:
1.
The Shorehas project is a mistake which was made It is years ago and for which we are now being asked so pay.
that Shorehan would not be acceptable as a probable Free licensable site under current federal siting practices.
to choose, no one would build it again.
2.
Lilco's lack of training, preparation, and credibility with respect to the construction and management of the plant is amply established.
Lilco, must be held responsible for all costs associated with these inadequacies.
3 The decisions already made by the Governor are These actions are specifically:
my reasonable ones.
decision not to impose a State plan upon Suffolk County; my decision to oppose the Lilco plan; my' decision to oppose low
~
power loading and my commitment to deal with the economic whether it impact that results from this 10 year old debacle, goes on line or not.
No one can reasonably dispute the primacy o,f the issue The only substantial reason being offered of safety here.
for opening the plant in disregard of strict application of the evacuation requirements is the desire to avoid the potential increase in rates that might result from the plant's not going on line.
I believe that although the plant was not the idea or the error of this administration, we have the obligation now to do everything we can to minimize any negative economic that result from the Shoreham mistake.
consequencesseveral months ago I assembled a special cabinet Acco rdingly, level working group headed by my Secretary, Michael
- more -
(
^
4-DelGiudice, with instructions to develop a series of short ters, intermediate and long term actions to mitigate the impact on rate payers and the Long Island community whether the plant opens or not.
They havs already consulted with some of the best minds available on ideas to deal with the financial. economic. energy supply and other implications deriving from this project.
They have talked with investment bankers; special legal counsel; financial market analysts; SE0 and NYSERDA; the Power Authority, Hydro Quebec, and others, and are now in the process of formulating a series of options for my consideration.
At an appropriate point, I will discuss my conclusions with the legislative leaders as well.
My preliminary view of the work being done satisfies se that we will be able to mitigate substantially the financial impacts created by what has been termed by one newspaper as an " epic miscalculation.'
Some who are eager to see t'he plant open have expressed their dissatisfaction with my refusal to put aside my reservations and work aggressively to open the plant.
My decisions'have been deliberate ones.
I w ill not permit the uncertainty about relative
~ economic impact to overe de what appears to'me to be the t
l certain responsibilit? I hav e to protect the safety and health of the peopJ t.
Ip t must be our first concern and that has been the procictio of all my decisions to date.
6 e
4 9
9 ATTACHMENT 4
ATTACHMENT 4 HUNTON & WILLIAMS 707 Easy Mais Synggy p.o. Box 1535 aooo at==sv6*a=+a ave =ws.
Rtcxxown, vano NEA 202:s ase
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June 17, 1985
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amonvitss. Tsa.= esser sveos easeFan, vaPos=sa amo3o TELE 8"oasc e'S 637 4346 TEktposo=g 1o3-3 33 330o FILE =o o'acc? or*L no som vee.
Martin Bradley Ashare, Esq.
Suffolk County Attorney H. Lee Dennison Building veterans Memorial Highway Hauppauge, New York 11788 Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1)
Suffolk County Executive Cohalan was quoted in the June 15, 1985 New York Times to this effect:
In that event
[i.e., Shoreham becomes radioactivel, the county has a duty and responsibility to provide for the health and safety of the residents near the plant.
I write to ask if, in fact, the County Executive will respond fully, in cooperation with LERO, to protect the public health and safety in the event a radiological accident occurs at Shoreham.
Very truly yours, W.
aylo Reveley, III 126/586
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f ATTACHMENT 5 t
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ATTACHMENT 5 COUNTY OF SUFFOLK l
OFFICE OF THE COUNTY EXECUTIVE PETER F. COHALAN JOHN C. GALLAGHER surrotx counrv exacutive cwieroccurv June 26, 1985 Hunton & Williams 707 E.
Main St.
P. O.
Box 15 35 Richmond, VA 23212 A tt:
W.
Taylor Reveley, III, E sq.
RE:
Long Island Lighting Company (Shoreham Nuclear Power Station, Unit I)
Dear Mr. Reveley:
This is in response to your letter of June 17, 1985.
In the event of a radiological accident, I,
as the County Executive will respond to the best of my ability and in accordance with the duties and obligations placed upon me by Article 2-b of the Executive Law.
Sincerely, gb d-P ET ER F.
COHALAN SUFFOLK COUNTY EX ECUTIVE PFC: sm l
i vstename memoaia' weawav e
Hauppauas.m.v iives e
is i en soo-aooo
LILCO, January 6, 1986 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that Response of Long Island Lighting Company to Motion for Cancellation of Emergency Planning Exercise with attachments was served on the following persons this January 6, 1986 by first-class mail, postage prepaid.
Chairman Nunzio J.
Palladino Alan S.
Rosenthal, Chairman United States Nuclear Atomic Safety and Licensing Regulatory Commission Appeal Board 1717 H Street U.S. Nuclear Regulatory Washington, DC 20555 Commission Fifth Floor (North Tower)
Commissioner James K. Asselstine East West Towers United States Nuclear 4350 East-West Highway Regulatory Commission Bethesda, MD 20814 1717 H Street, N.W.
Washington, DC 20555 Gary J. Edles Atomic Safety and Licensing Commissioner Frederick M.
Bernthal Appeal Board United States Nuclear United States Nuclear Regulatory Commission Regulatory Commission 1717 H Street, N.W.
Fifth Floor (North Tower)
Washington, DC 20555 East West Towers 4350 East-West Highway Commissioner Thomas M. Roberts Bethesda, MD 20814 United States Nuclear Regulatory Commission Howard A. Wilber 1717 H Street, N.W.
Atomic Safety and Licensing Washington, DC 20555 Appeal Board United States Nuclear Commissioner Lando W. Zech, Jr.
Regulatory Commission United States Nuclear Fifth Floor (North Tower)
Regulatory Commission East West Towers 1717 H Street, N.W.
4350 East-West Highway Washington, DC 20555 Bethesda, MD 20814 Samuel J. Chilk Morton B. Margulies, Chairman Secretary of the Commission Atomic Safety and United States Nuclear Licensing Board Regulatory Commission United States Nuclear Washington, D.C.
20555 Regulatory Commission East-West Tower, Rm. 461A 4350 East-West Hwy.
Bethesda, MD 20814 l
l
2 Dr. Jerry R. Kline Stewart M. Glass, Esq.
Atomic Safety and Licensing Board Regional Counsel United States Nuclear Federal Emergency Regulatory Commission Management Agency East-West Tower, Rm. 427 26 Federal Plaza, Room 1349 4350 East-West Hwy.
New York, NY 10278 Bethesda, MD 20814 Stephen B.
Latham, Esq.
Mr. Frederick J. Shon John F. Shea, Esq.
Atomic Safety and Licensing Board Twomey, Latham & Shea United States Nuclear 33 West Second Street Regulatory Commission P.O. Box 398 East-West Tower, Rm. 430 Riverhead, NY 11901 4350 East-West Hwy, Bethesda, MD 20814 Ms. Nora Bredes Executive Coordinator Herbert H. Brown, Esq.
Shoreham Opponents' Coalition Lawrence Coe Lanpher, Esq.
195 East Main Street Christopher M. McMurray, Esq.
Smithtown, NY 11787 Kirkpatrick & Lockhart 8th Floor, 1900 M Street, N.W.
Gerald C. Crotty, Esq.
Washington, D.C.
20036 Counsel to the Governor Executive Chamber Bernard M.
Bordenick, Esq.
State Capitol Oreste Russ Pirfo, Esq.
Albany, NY 12224 Edwin J. Reis, Esq.
United States Nuclear Jonathan D.
Feinberg, Esq.
Regulatory Commission New York State Department 7735 Old Georgetown Road of Public Service, Staff (to mailroom)
Counsel Bethesda, MD 20814 Three Rockefeller Plaza Albany, NY 12223 Donna Duer, Esq.
Atomic Safety and Licensing Spence W.
Perry, Esq.
Board Panel General Counsel United States Nuclear Federal Emergency Regulatory Commission Management Agency East-West Tower, North Tower 500 C Street, S.W.
4350 East-West Highway Room 840 Bethesda, MD 20814 Washington, D.C.
20472 Fabian G. Palomino, Esq.
Atomic Safety and Licensing Special Counsel to the Governor Board Panel Executive Chamber, Rm. 229 United States Nuclear State Capitol Regulatory Commission Albany, New York 12224 Washington, D.C.
20555 Mary Gundrum, Esq.
Atomic Safety and Licensing Assistant Attorney General Appeal Board Panel 2 World Trade Center United States Nuclear Room 4614 Regulatory Commission New York, New York 10047 Washington, D.C.
20555
i Martin Bradley Ashare, Esq.
William E. Cumming, Esq.
Suffolk County Attorney Associate General Counsel H. Lee Dennison Building Federal Emergency Veterans Memorial Highway Management Agency Hauppauge, NY 11788 500 C Street, S.W.
Room 840 Jay Dunkleberger, Esq.
Washington, D.C.
20472 New York State Energy Office Agency Building 2 Dr. Monroe Schneider Empire State Plaza North Shore Committee Albany, NY 12223 P. O. Box 231 Wading River, NY 11792 Docketing and Service Branch (3)
MHB Technical Associates Office of the Secretary 1723 Hamilton Avenue United States Nuclear Suite K Regulatory Commission San Jose, California 95125 Washington, DC 20555 A
/.- -
Don'ald P.
Irwin Hunton & Williams 707 East Main Street Richmond, Virginia 23219 DATED:
January 6, 1986 4
- e. Ise6 08:21 N. P. C. m 3T NC.001 002 l
January 22, 1986 I
l Bonorable Peter F. Cohalan Suffolk County Executive R. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 Dear Mr. Cohalan On January 16, 1986, Suffolk County Local Law 2-86 became effective.
That law, entitled "A Local Law Concerning the Protection of Police Powers Held by the County of Suffolk" purports to require Suffolk County Legislature approval of certain tests or exercises for responding to emergency situations.
The law obviously is designed to apply to the upcoming February 13, 1986 scheduled emergency planning exercise for the Shoreham Nuclear Power Plant.
This exercise will include not only federal government participants from the Nuclear Regulatory Commission ("NRC" or " Commission"), the Federal Emergency Management Agency
(" FEMA"), the Department of Energy, the Department of commerce, the Environmental Protection Agency, the Department of Health and Human Services, the Department of Transportation, and the Department of Agriculture, but also g loyees of the Long Island Lighting Co. ("LILCO"), the holder of a Commission low-power operating license.
We have no desire for a confrontation with Suffolk County over Local Law 2-86.
To the contrary, we would welcome a reversal of Suffolk County's opposition to the upcoming exercise and its participation in that important information gathering function.
The NRC has requested FEMA to conduct that exercise to enable the Commission to gain facts that will assist it in evaluating aspects of LILCO's emergency plan and in determining whether that plan provides reasonable assurance that adequate protective measures can and will be taken in the event a radiological emergency were ever to occur at Shoreham.
This important task could be done more efficiently and effectively were Suffolk County to participate in the exercise, as have other local communities surrounding the more than 100 nuclear power plants in operation or close to operation in this country.
- Moreover, were Suffolk County to participate in the upcoming exercise, any legitimate concerns over either infringement of its police powers during the exercise or lack of information about the exercise would obviously be satisfied.
Regardless of the County's decision concerning participation in the February 13 exercise, however, its concerns over that
012446 08:22 N.P.C. H 57 rC.CC CC' 2
exercise are not justified the County's police powers will not be impinged in any way and we have no desire to unreasonably withhold information concerning the upcoming exercise from the County.
We are hopeful that, once the County understands the context of the test in the federal licensing scheme and the nature of the federal participation, a confrontation can be avoided.
Toward that end we want to advise you about the upcoming exercise, we understand that LILCO has also submitted a description of the February 13, 1986 exercise for your information.
The exercise is to be supervised and conducted by FEMA at the request of the NRC.
No State or County functions will be performed by any federal personnel during the upcoming exercise.
No LILCO employee will be, or appear to be, performing any State or County functions.
Indeed, as the NRC made clear in requesting FEMA to schedule and conduct the exercise, the upcoming test will comply with all State and County laws which limit the exercise of certain functions to State or County personnel.
Although, as l
explained below, federal personnel will, to a limited degree, play the roles of certain State and County officials, this. limited role-playing will not, and is not intended to, infringe on any legitimate police powers of suffolk County.
The LILCO Transition Plan for Shoreham provides for the lead role for offsite emergency response to be administered by the Local Emergency Response Organization ("LERO"), an organization comprised of primarily utility employees.
In the upcoming Shoreham exercise, FEMA intends to observe, by examination of facilities, plans, and communications, but not by interacting with the affected public, a number of LERO primary response capabilities.
Specifically, FEMA plans to observe the following facilities and/or activities:
LERO Emergency Operations Center Emergency Operations Facility Emergency News Center Reception Center Congregate Care Centers Emergency Worker Decontamination General Population Bus Routes School Evacuation Special Facilities Evacuation Mobility Impaired at Home Route Alerting Traffic Control Points Impediments to Evacuation Radiological Monitoring Accident Assessment
Cb 24,56 09:23 N.O.C.
H 3T T.001 004 3
rn addition to the above areas, FEMA will evaluate the part of the plan which provides for possible New York State and/or Suffolk County involvement in response to a radiological emergency.
The LILCO Plan in part states that:
The role of Suffolk County, should it decide to become involved in the response to a radiological emergency, either because the Governor orders it to do 80 or because the County Executive so chooses, will be for the various members to participate to the extent to which they are qualified by reason of prior training or experience.
L In order to test this aspect of the plan and to add more realism to the exercise, should neither Suffolk County or New York officials chocse to participate, federal employees will play the role of such officials during the exercise.
Through this role-playing, the NRC is attempting to more effectively evaluate LERO's capability (1) to accommodate the presence of state and local officials, (2) to support those of ficials using the resources available through LERO, and (3) to provide those officials with sufficient information to carry out their State and County responsibilities.
These " actors," however, will be instructed not to play decisionmaking roles, not to assume any command and control authority, not to interact with members of the public so as to lead anyone to believe that they are actually County officials, and not to actually perform any State or local functions, which are exclusively reserved to State or County officials by State or County laws.
The basis for the number of actors to be used in this aspect of the exercise and the detailed instructions they will be provided are based, primarily, on New York State plans for other nuclear power plants and the manner in which New York State personnel and other counties have participated in other New York facility exercises.
As is clear from the above description, the February 13 Shoreham exercise is not. intended to, nor will it, infringe on any lawful County interest.
As stated above, the NRC is requiring this exercise to fulfill the congressionally mandated objective under the Atomic Energy Act of ensuring that the public health and safety is protected by any decision that the NRC makes on LILCO's application.
In order to carry out this important federal function, the NRC is granted specific statutory authority to obtain information through such studies and investigations which it deems necessary and proper.
- See, e.g., 42 U.S.C. $ 2201c.
Similarly, FEMA has a congressional mandate to conduct such an exercise at the request of the NRC.
42 U.S.C. 55 5131 &
5201; 50 U.S.C. $ 2253(g); 44 C.F.R. Part 350.
cy2446 09:24 n.p.c. a 57 NC.001 2C5 4
Me would welcome a Suffolk County decision to participate in the Shoreham exercise.
In our view the public only loses by your refusal to help the NRC and FEMA perform their federall however,y mandated functions.
Regardless of your decision, it is NRC's intention that FEMA continue to plan for and conduct the upcoming February 13 exercise in order to fulfill our federal responsibilities.
Sincerely, Herze H. E. Plaine General Counsel United States Nuclear Regulatory Commission HNY
- .George
. Watson Acting General Counsel Federal Emergency Management Agency
a et/24,-96 C3:25 N.P.C. H 57
- C.001 006 The attached was Federal Expressed to Suffolk County yesterday.
It should be delivered before 10:30 today.
We are making no public comment about this letter until af ter noon in order that the intended recipients, our Commissioners, and our Congressional oversight receive it first.
I I
l
U.S. Departewet of Justfee CMI Division efte of to Aadasse Atasag tennel h etegt u a C.W a0 JAN 23 EIS tenerable poter p. Cokalan Suffolk County Esecutive M. Lee Bennisen Building veterans Moserial 31ghway Bauppauge, New York 11788 Seas Mr. Cohelens ne you are aware, the Waclear Regulatory Commission ('Wac'),
in eenjunction with the federal Emergency Management hqsasy
(*rBMA ) and the Department of Energy, have seneduled for February 13, 1984 en emergency p1saning eneroise for the shoreham Wuelear power plant (*shorehas") loosted in suffolk County, New Terk.
The Lane Island Li presently the holder of a federal lowghting Company ('LILCO*) is power operating 11oesse at sharehas and is seeking amoroval for a full.pewer operating
- license, ta order for L1t.to to entain approval for such a lieease, the Wne requires, i a
, that an emergener plan he developed and that Wac and son act an saareise to desenstrate the effectiveness of the plan.
2 5 10 C.F.R. 3 80 47 and Part 50. Appendix 3.
TheNe important federal requirements are mandated by the Atente Energy Act beesuse Congress has found that, with respect to the utilisation of stente energy, it is la the 'nstional interest.
.. to the health and safety of the publie.'
42 U.S.c. S 3013(protech el.
1 understand that Buffolk County has adepted an ordinaaee, Suffolk Leeel Law Be. 3=58 which eeuld be inteepreted to pretthit fedess1 efficials,tres simulatine the role of eeunty officials in any such test, or perticipating in a test is which sessene else was engaging is such role-playing.
Suen an inter =
pretaties would constitute an ekstruction to the achievement of a eengressionally sandated purpose er ohjeetive under the Ateate Energy 4et.
Seesuse of tholt eeneern over any pessitie frustration of these tapertant federal intereste, perticularly, the esagressional mandate to preteet the publie health and safety tres radieleviset hasards, we have been discussing with the agencies the peseitility of legal estion.
3 feel eenfident that, enee the eeunty understands the sentent et the test in the federal licensing sehene and the natura of the federal participation, litigatten een be avoided, toward that end, and in the interest of federal, state and local semity, the federal
, yd,.
i j
/
description of the upeeming amaraise.agenaiesinvolvedinthetestareforwa to you a In a advised that LILCD has stready submitted to you their description of the pebsuary 13, 1986 exercise.
The test is to to supervloed and senducted by FEMA.
We l
state er eeunty tunetiens will be enereised by any federal i
pereennel during the upooning test.
No LILCD employee will be i
performing any state er eeunty functions.
Indeed, as the NBC made clear in requesting FEM 4 to schedule and senduet the esereise, the upeeming test will eenply with all state and eeunty laws which itait the esercise el eertain funettene to state or eeunty pereennel.
It will not, and La'not intended te, infringe any legitimate pottee peuere of suffolk County.
In i
eus, the test involves federal employees playing the part of local and/or state personnel, and LILCO employees and other individuals acting out their roles under a simulated emeraise.
Of eeurse, if the eeunty and/or state deeldes to participate in the eneroise, participation which has long been sought and is welcase now, knere would he no need for role playing of least
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and/or state pereennel.
In any event, no action will be taken which would require the actual emeraise of local pellee powere.
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As stated above, the NBC is requiring this euereise to l
fulfill the congressionally mandated objective under the Atente Energy Act of ensuring that the public health and safety is protested by any desisten that the WRC makes en LYLCO'a application.
In order to sorry out this important federal function, the NRC is granted specifie statutory authority to entain information through euen studies and investigations which i
it deems neessoasy and er,
- 331,
- 43 U.S.C.
g 3201e.
sta11erly, as a T6Kgr a anal mandate to senduet such an exercise at the request of the d30 at 43 U.S.C. 59 $131 4 5301: Sg U.S.C. 3993(g)i 44 C.F.R. part 153.
For the reasene outlined above and because of the imminense of the February 13th datee the agencies are sentinuing their pre ratione fee the esereise.
Wewever, we de not intend t sub est federal esployees er othere involved in this esereise to con tru the oefety of a nuclear power plant to criminal prosecution, howevst unwarranted.
We therefore request that you j
reopend by January 30, 1986, indienting whether you intend to treat this esereise and the role. playing it inoelves as a arisinal miedenenner.
In light of the advance preparatten needed te pertens this enereise, we need such a prompt reopense to be aceures that you will not be implementing this ordinance
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3-In a manner that eenetitutes an impermissitie abstruction to the sangreseienelly mandated radiological health and safety requiremente er the Atomia Energy Act, thank you for your cooperation in this matter.
Eineerely you.re, kY l
L ')
RENARD E. WILLARD Assistant Attorney General I
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