ML20151T104

Applicant Exhibit A-53,consisting of State of Ny 821209 Motion to Dismiss Petition of Pf Cohalan on Grounds of Objections in Point of Law

ML20151T104
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/19/1988
From:	Abrams R NEW YORK, STATE OF
To:	NEW YORK, STATE OF
References
OL-3-A-053, OL-3-A-53, NUDOCS 8808160256
Download: ML20151T104 (13)

Text

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. gg AUG 11 PS :47 nuctna r w co mston 8 TATE OF NEW YORE 8UPREMI CCCRT : COUtrfY OF ALRANY N*th. _& 2P ' '3 % : Sh. W. _ b er cf ___ L/L: f o - . . _ . _ _ _ _ .

In the Matter of the Application ~of sta _ cme PrTER F. CORALRN, ae County Executive *, q,m: ._ x_ n jl_ _ d __

on behalf of the ComtTY OF SUFFOLX, and ..

1. " #' - - - -- ~~~- - "'O JOEN C. NEE 23NSERG, as Presiding Officar --

of the SUFFOLE COUNTY LEGISLATU33, and O O CT' - - -

the COUNTY OF SUFFOLE, Cntra:t r __ _ !an _J- M ff Other _ __ r u s _ _

Petitioners, Reporte: J. s hb,- _

For an order pursuant to Article 78 of the Civil Practice Law* and Rules, NOTICII TO DISMIs3 ON GROUNDS OF

-egainst= 05JBCTIONS IN POINT OF LAW '

The NEW YORE STATR DISASTER PREPAREDNESS '

COMMISSION, and WILLIAM IINNESSY, as Chairman of the WIN YORK STATE DISASTER

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PREPAREDNESS ColetISSION, or his. Successor in office, Respondents. -

, ,PLEAFE TAER NOTICE that upon the petition of Petar F. Cohalan, I -

et. al., verified on December 6, 1982, and the affirmation of f- Vida M. Alvy, Assistant Attorney General, affirmed on December 9, 1982, Robert A4rama, Attorney General of the state of New York, attorney for reapendents, will move this court pursuant to CFLR ,

i 7804(f), at a special Taza thereof to be he,11 in and for the Third i

Judicial Distriot, at the Albany County Court Ecuse, Albany, New I l l I York, on December 10, 1982 at 9:30 a.m. or as soo'n thereafter as

! ocuasel any be heard-for an order denying the' relief sought and dismissing the petition on the ground of objections in poin't of law

' in,that: .

p Petitioners nave failed to state a clain '

upon which relief can be granted.

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JA2443 WEE 23y0R3, respondents respectfully request this court to deny petitionars' request for a preliminary injunction, to grant this action to dismiss the petition upon the above-stated ground and alternatively in the event that motion is' denied for leave to serve an answer, and for such other and further relief as this Court may deem proper .

Dated: Albany, New York '

Decasaber 9,1982 -

4 ROSERT A& RAMS ,

Attorney General of the State of New York Attorney for Respondents The capitol Albany, New York 12224 (VTDA M. ALVT, of Counsel)

Telephones (518) 473-5095

. TOs MR. DAVID I. GILMARTIN Suffolk County Attorney Veterans Memorial Eighway -

Hauppauge, New York 11787 l .

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JA2445 T32s COURT MUST DIsM2ss TIE INSTANT PSTITION.

2 Petitioners, the County Executive of the County of Suffolk, the Presiding Officer of the suffolh County Legislature and the County of duffolk, conuence this Article,78 proceeding in the nature of prohibition, to enjoin, penda..te Mig and ,

permamently,respondants fross considering and/or approving a Radiological Emergency Response Plan (hereinaf ter REAP) for ths geographic area of suffolk County, othat than a plan suheitted by the County of suffolk.

3.

In support of their position, petitioners r'rier this Court to Executive Law Article 2-3, which they clain provides authorityfortheixcontentonthatonlyt5elocalgovernmental entity may prepare and submit a disaster preparedness plan to respondent Disaster Preparedness Commission for its consideration

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and approval aAd that therefore, respondents must be joinkfrom

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1 consideringtheplanofapublicutilipoampany. I 4.

An examination of Article 2-3 of the Executive Law,as well aa the_ appropriate. legal s*mminrds for the issuance of a writ of prohibition, reveals _that, petitioners' arguments must be disaissed as meriti,ess..

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"Prohibition is an extraordinary remedy to be invoked  !

i only where a clear right to relief is established and.the action '

taken is clearly without jurisdiction or in escass of jurisdiction".

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Matter of Rainka v Whal,eg, 73 AD2d 731, 732 (34 Dept,1973)', affd 1 51 NY2d 973 (1980) . Petitioners have not establisbed the right to l such'reliaf. .

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6., Moreover, *(elven when the petition presents a

' substantial claim' of an absan::e of jurisdiction or an act in excess of jurisdiction, prohibition still may be deemed inappro-(

priate after consideration of such fa'ctors as the ' gravity of the harm which would be caused by an axessa of pilpwer' or 'whether the excese of power can be adequately corrected on appeal or by ,

othat ordinary proceedings at law or in equity'". Metter of Nicholson, et.

al. , v state Coennission on Judicial conduct, et.a1, 50 NY2d 597, 605-606 '(1980) . _.

7.

' Indeed, r. writ of prohibition is not a proper rmody where, as here, any action, order or decision by the Disaster Preparedness Ceaunission that may be made in this matter is review-able in a cartiorari proceediav. Villace of Camillus v Disacnd, 76 Miao 2d 219, 320 (Co. Ct. Monroe Co.1973) , agg,, 45 AD2d'982 (4th Dept, 1974) cart denied 421 US 931 (1975) .

8.

' An examination of Article 2-3 of the Executive Law reveals that petitioners cannet establish a clear right to the relief rought .

9.

In amanM ng the Executive Law la Chapter 640 of the Laws of New York of 1978, in relation to disastar preparedness, the New York State Legislature fcund "that a joint effort,

- . . . - . - . public and private, (emphasis added) is needed to mobilise the rasources of

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individuals, business, labor, agriculture, and government at every

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leu 1 - federal, stata and local - for effective organisation to prepare.for.and aoet. natural and naa-sade disastara of,a_11. kinds-- _

1 (Laws of New York, 1978 Chapter 640).

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10. m s, the 1,egislature established respondent Disaster Preparedness Cossaission and authorised the Ccamission to

... meet at least twice each year'at '

such other times at may be necessary. .

' h agenda and meeting place of all regular meetings shall be made available to the public in advance of suah meetines and all such meetings shall be open to the publio. ..

Emeoutive 1,aw $21.2. .

11. The Legis1.ture vested in the casatiss4cn the power to:

...a. study all ospects of man-made or natural disaster prevention, response and recovery;

b. request and obtain from any state or local officar or ageasy any information necessary to the acessission for the exercise of its responsibilities;

c. prepare state disaster preparedness plans, to be approved by the governor,.and re-view such plans and report thereon by March thirty-first of each year to the governor and the legisla-ture. In preparing such place, the cosasission shall consult with iederal and local offAoials, amargenoy setvios organisations, and the public as it deems appropriates ... Ezeoutive Law 131.3 a,b,c.

12. Such a grant.of authority by the Legislatura clearly

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ampowers respondents _ to meet. publicly and_ consider disdsser pre-paredness plans submitted by public and private entitiss.

13. Yet, petitionars seek a judgasat en$olaing respondents from performing their statutorily authorised responsibilities of ,

meeting and considering Radiological anergency Response plans submitted te vhem. surely, such an ordes would be ocatrary to the intant of the Legisinture and contrary to case law.

14. In support of their position, petitioners argue that t

Executive Law $23 vests emolusive auth'ority with local governments to present disaster preparedness plans such me R33# to respondent Commission. ,

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15. .Bueoutive Law 323 provides in pertinent parts I

1. sach county, axcept those contained within the city of h;w York, and aach city is authorised to prepare disastar i

preparedness plans. The disaster pre-paredness cometission shall provide assistance and advice for the develop .

ment of such plans.

18. Manifestly, this section provides the counties with

the "authority

• to su2mait plans te, the coassission but does not givs the counties exclusive authority. The Legislature never indicated that the counties are the sole entities to submit j disaster pareparedness pisas. to the sentrary, Article 2-3 of the Executive Law authorises the public and private sector to prepara for and meet disasters of all kinds.

i 17. Thus, as petitioners have not. established a clear I

right to the relief requested, this patiMon wust be dismi.ssed.

18. Moreover, petitioners have failed to state a claim for reliet pusuant to cpLa $3001. .

19. An action for a declaratory judgment is appropriate to i

challenge a statute or a quasi-legislative adninisaative action.

Matter of Lahelsad v onondava county water htberity, 24 NY2d 400 (1949). .

20. In the case.at bar, petitioners seek to shA11enge the I '

actions of an administrative agency before tM aetancy has an opportunity to act.  ;

21. Clearly, such an action is prematue and not ripe for controversy. Thus, an action for declaratory judpt dc.es not f lie. .

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PETITIONER 8' APPLICATICN PCR A  !

PRILIMINARY INJWCTION MUST R3 .

j DELIED.

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22. It is weil established that there are three prerequi-1 sites which must be shown before this court can find that petitioners are entitled to a preliminary injunot' ions a) A strong likelihood of success on the nortis (i.e., a clear right ta the relief  !

sou h) ght) that they will be irreparably la$ured if the preliminary injunction is not  !

granted; and i c) that the equities balance in their l favor. {

22. Is the case at har, petitioners have failed to demon- I i

strate a clear legal right to the roll'd sought as'oan be seen l by pazagraphs 5-17 of this affirmatit. .

24. Moreover, petitioners clearly will'aos he ir'eparably r

injured if the prei t =t a= y injunction is not granted (see affi- l i

davit of Donald 3. Davideff, attached hereto as Exhibit I'and incorporated hereia).

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. 25. Finally, the equities balance in favor of respondente. -

26. Petitioners will have an opportunity to subsit their l ' Ramp' to respondents,when it is availshle.  !

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27. In the interia, the suhaission of the plan by the

• Long Island.Mghting Campany will give the respondents aa opportunity to consider this plan and have it available in the event that petitioners fail to tiasly present a plan to respondents which has been approved by their sonaty' legislature.

28. In addition, in allowing respondents.to eaaroise their statutory right in holding a wetlag of thein Commission, it will give respondants an opportunity to estartata a publia

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29. Thus,for the reasons given above, the relief sought should be denied.and the petition disInissed.

Dated: Albany, New Tork December 9, 1942 (h M VXDA L AI.VY ,

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J SUPRIME COUtiTY COURT Or AL3Mt OF TEE STATE OF NEW YdRX

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. . . . . . . . . . . . . . . .x CCHALA:3,In the !!atter of the Application of PETER

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as County Executive, on behalf of thePresiding as COUNTY Of ficer OF SUFFOLR of the and J0MI SUFFOLX COUNTY , C WEMRENBERO LEGISLATURI, and the COUllTY OF SUTTOLK, Petitioners, AFF DAVI" against .

Index Wo.

TME NEW YORK

'C0!UtISSION STATE CDISAFTER and WILLIAM ;M2SSY, as PREPAREDNESS Chairman OOMMIDSION, or his Successor in Office,of the !!EW I

Respondents, and

• i LONG ISLAND LIGHTING COMPANY, Intervonor-Respondent.

. . . . ... . . . . . . . . . . . . . . . . . .g t STATE OF NT.W YORK)

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COUltrY OF ALBANY )

DONALD __ 3.#DAVIDorF, being duly sworn, deposes and says:

1.

I are the Director of_the Radiological Emergency Preparedness Group of the New York State Disaster Preparedn _ ess

• C:r:nmission ("Comunission') .

J.a toy capacity, I am responsible ,

for the administration of the state's radiological emergency preparedness progra3.

2.

I make thir af fidavit in suppo*+ of respon(ents '

motion to dismiss and in opposition to petitioners' motion for a preliminary injunction.

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3. The controversy at hand has s history that dates l back to the mid-1970s. In 1978, suffolk County endorsed an l emergency preparednesa plan that complied with the regulations I

in existence at that time. In 1979, due to the seriousness t

of the Three Mi,la Island incident, new C-deral s regulations concerning off-site emergency preparodness pla$s were promulgated. See NuAzo-0654: FDtA-RIP-1. During 1980, Suffol:.:

County and Long Island Lighting Company ("LILco') attempted to revise the 1978 acergency preparedness plan in order to bring it into compliance with the new fede a1 regulatsons. Following these negotiations, LILCO and Suf folk County . entered into a contract in September,1961. This contract required LILCO to provide suffolk County with $245,000 to prepare, within six months, an of f-site emergsney preparedness plan. In April, 1982, approximately six months later, 3uffc1h County tendered LILCO's initial monetary advance, which was refused, and categorized its work product completed thus far as "working papers." These "working papers" were obtair$d by LILc0 on April 29, 1982. Thereaf ter, LILco formulated an of f-site emergency preparedness plan and suben!.tted it to the Commission.

Twenty to forty percent of,the plan sutetitted by bttco .

consisted' of Suf folk County's "working papers. '

- 4. At the eacting that had been scheduled for becember 8,1982, the Cor.unission had intanded to receive, from its own staf f, a technical evaluation of the plan submitted by LILc0 and an analyais of that plan with respect to compliance with appropriate federal regulations. In 0

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recognition of the need to foster cooperation and of the l

need to provide for essential objectivity and fairness in the

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l exercise oJ its governmental responsibility, the Chairman of

) coeunission had formally invited petitioner Cohalan to anand the aceting and to comment on and evaluate the technical substance of the plan suhrnf tted by LILCo. He h'd also been offered the opportunity to present or discuss appropriate elements of the plan yet-to-be autraitted by suffolk county. I The Chairman of the Cormission had promised, in addition, that if suffolk County were to submit its plan within eight weeks from the Commission's December 0, 1982 meeting, ig would have been subjected to the same rigorods review as that of any -

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other plan.

Mhere appropriate, it would have bee'n used to {

replace, supplement or supercede any plan that reight, hwe been found to be acceptable by the Commission. In the spirit of cooperation, the Chairnan of the Commission had also offered to antend suf folk County's time in which to so2xsit a plan to twelve weeks.

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5. Had the Commission had the opportunity to l receive the viewpoints _of all. concerned, the ghairmagn have proposed a resolut_ ion _ to the. C_ casa _i_ssion.._ _ . _ __. ._ _.. Thi s_r_e solu!

would have authorised. the Chairman.to_su'bmit _thtLILCO-

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i developed plan to. the_ Tederal Emergency Management Agency  ;

("FDtA* ) for review and eventual acceptance.

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JA2454 transmission, however, would not have been authorized until the sight week, or twelve week, as the case.mioht havo been, waiting period had elapsed. After this period, if FE.M had acceptad the plan according to the patablished procedurc, it would have transmitted it, in turn, to the Nuclear Regulatory Commission for consideration in its comprehensive licensing process.

6.

Accordingly, if the Commission is permitted to consider the LILCO-submitted plan prior to the submission by suffolk County of its plan, suf folk Co anty will_ not'be _

irreparably harmed because: *

(a) suffolk County will have an ample opportunity to express its viewpoints concerning '

tho LILCo-submitted plan before the Cormission

. . votes on whether or not to accept the LILco-l

, submitted plans (b) suffolk County will have an ample opportunity to present and discuss appropriate elements of the plan yet-to-be submitted by Suf folk County before the coassission votes on whether or not to accept the LILeo-subreitted i

plahn (c) Suffolk County will have an ample opportunity to finalize its plan, hold public i hearings and obtain the approval of the county-legislature before the LILco-submitted plan will f 4 U .4+d o

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• I be transmitted to FDU.: l

. 1 (d) Suffolk County will have an ample opportunity to show the commission'why its plan' should replace, supplement or supercede the LItco-submittedplan,beforetheL2IMO-submitted 1 t

c plan will be transmitted to FEMA; and (e) Iuffolk County will have an ampie 4 - ,

opportunity to have its plan considered for formal, final approval since the only administrative agency that is authorised to grant such, formal, final approval is TEMA, not the comunission.

7. The'Coteission shou 14 be paIrmitted to consider the LILCO-submitted plan in order to. exercise its statutory authority to submit an aqcaptable plan to FEMA.

, WIERF. FORE, respondents' motion to dismiss should be

' granted and petitioners' motion for a preliminary injunction should be denied.

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J 'k NALD Bf D(VIDory / v l

sworn to before me this

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Notary puM1&o, c...a 1 3.-~~u,

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