ML20154B040

Forwards Util 860116 Submission to Suffolk County Legislature Demonstrating 860213 Emergency Exercise Will Not Violate Local Law 2-86.Complaint Filed in Us District Court Also Encl.Related Correspondence

ML20154B040
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/17/1986
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Asselstine J, Palladino N, Roberts T NRC COMMISSION (OCM)
References
CON-#186-796 OL-3, NUDOCS 8603040211
Download: ML20154B040 (107)

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Nunzio J. Palladino, Chairman Roberts Commissioner Thomas M. Asselstine Commissioner James K. ,

Commissioner FrederickZech, M. Bernthal Jr.

Commissioner Lando W.

Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1)

NRC Docket 50-322 gg}

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Dear,

Chairman Palladino and Commissioners:

the Suffolk County legislature passed Iri late December 1985, f lk County to a bill which would make itanaemergency criminal planningoffense" test" in Suf o or "ex-

" conduct" or " participate in" involving potential " performance" or " simulation" cf ercise" if the Suffolk County Legis-Suffolk County " roles" or " functions"

" exercise." The bill would lature has disapproved the " test" or h " test" or also make it a criminal violation to conduct any suc25 days previously, at least

" exercise" without having submitted, i tion of to the clerk of the Suffolk County Legislature a descr "p or " exer-the activities proposed to be undertaken in such " test a procedure for disposition by the cise." The bill also set out On January 13, 1986, the Legislature of any such submission. 86.

County Executive signed the bill into law as Local Law 2- follow-LILCO understands that the local law took effect yesterday in the New York Secretary of State ing its being filed with Albany.

A copy of Local Law 2-86 and its covering resolution com-prise Enclosure 1 hereto.

Yesterday, LILCO filed documents with the Clerk of theThose Suffolk County Legislature to comply with the thelocal law. planning emergency that documents demonstrate, LILCO believes, 8603040211 e60117 PDR ADOCK 05000322PDR l -

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HUNTON & WILLIAM S exercise scheduled for February 13, 1986 will not violate Local Law 2-86 in its own terms. LILCO's submission, with errata sheet, is Enclosure 2 h'ereto.

Yesterday, LILCO also filed suit in the United States Dis-trict Court for the Eastern District of New York, seeking, among other relief, to have Local Law 2-86 invalidated on a variety of grounds, including but not limited to the fact that it interferes impermissibly with the effectuation of a federally pre-empted reg-ulatory scheme. LILCO's complaint is Enclosure 3 hereto.

Because of the relevance of this matter to the emergency planning exercise scheduled for February 13, 1986, LILCO will en-deavor to keep the Commission promptly informed of material devel-opments.

Sincerely your,s, N} ) !

A u

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Donald P. Irwin One of Counsel to Long Island Lighting Company

Enclosures:

1. Suffolk County Local Law 2-86

2. 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, plus 4 attachments (with errata sheet) (undated: filed January 16, 1986)

3. LILCO's Complaint, January 16, 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. Falomino, Esq.

Mary Gundrum, Esq.

Stewart M. Glass, Esq.

Stephen B. Latham, Esq.

Johathan D. Feinberg, Esq.

Herbert H. Brown, Esq.

Martin Bradley Ashare, Esq.

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' tra. Ro s . No . 212 7-8 $

autreduced by Legislaters Blass, Prospuet, Caracappa, Englebricht, M Nolan, Bachety, DeVine, Toley, Allgrove, O'Andru, Rizzo, Mg6cnoy,orgo,GAass, Heaney, LaBua, Rosso ROSOLUTION NO. 1255-1995, AOCPTING LOCAL LAW NO. YEAR 198 , A LOCAL LAW CCNCORNING THE PROTECTICN OF POLICC PCWERS HELD BY THE COUNTY OF SUFFOLK WHEREAS, the County of Suffolk, pursyant to the Ccnstitution and laws of the State of New York, has been delegated police powers by the State; and WHE REAS , the County has a duty to ensurs that such police powers are not usurped by other entities; and WHEREAS, County preparations for an4 responses to natural and man-made amargency functions; andsituations involve the County's exercise of its police power WHEREAS, the Long Island Lighting Company has prepared an off-situ emergency plan for the Shorehas Nuclear Power Statien in which private porsons, including Long Island Lighting Company employees would carry out governmental functions and otherwise usurp the police powers of,suffolk Countyr and WHEREAS, at the initiative of the Long Island Lighting Company thero is proposed to be a test of that Company's off-stte amorgency plan, daring which test the roles and governmental functions of Suffolk County officials wculd to performed and " simulated" by persons who are not officiale of Suffolk County and who are not legally- authorized to perform or simulate Suffolk County roles og governmental functions; and WHEREAS, the County of Suffolk has not been informed of what roles and governmental functions of the County would be so performed or "sinulated," what actions would be taken by persons carrying out the test, and what pablic rnadways, lands, and other prsper.y wuuld be affected during auen tests and WHEREAS, the County of Suffolk finds that it would be incensistent with its police powers and its duty to prevent such powers from being usurped if it were to remain indifferent to neurpation of its unauthorized persons to perform er simulate the County'spolice rolespowurs or to allow or governmental functions; and WHEREAS, the County of Suffolk finds that it is required to establish a muchanism of general applicability to gain information needed to assass whether persons are proposing to take actions or parform roles .or governmontal functions, or otherwise usurp the County's police powers in a test er actual emorgency situations and l

WHEREAS, there was duly presented and introduced to this County l Legislature at a meeting held on , 1985, a propesud local law entitled, "A LOCAL LAW CONCERNING THE PROTECTICN CF PCLICE PCWCa3 HCLD BY Tl!E

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. COUNTY CT SUFFCLX," and said local lau in final form is the .ama as whan presented and introducedt now, therofore, be it RESCLVED, that said local law be enacted in form as follows:

LOCAL LAW HO. , SUFTOLX COUNTY, NEW YORK l

l LCCAL LAW CONCERNING THE PRCTECTION OF POLICE POWERS HELO at THE COUNTY OF SurroLK SE IT ENACTED BY THE COUNTY LEGISLATURE OF THE COUNTY Cr SUrTOLK AS FOLLOWS Section 1. Definition.

As used herein, ' person" shall mean any individual, psrtnership, corporation, associatien, or public or private organisation of any character, provided, however, that " person" shall not include any governmental entity autherisha by las Lc postuss 'L. . governmental function of suffolk coun:/ ur authorized by lad to exoecise police po4 ors within the State of New York.

Section 2. Pronibition.

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'ntro. luc. No. 2127 0; Page 2 (a) It shali be a crime for any person to conduct or participato in a')y tast or ezerntse of any respcase to a natural or sien-,aedo situatibn if 'that test or exercise includes as part thereof that the amargency roles or a ~ -A-aatal functions of any Suffolk Ccunty' official w111 he performee. or fcqhm.u.uc, and if the in Sections 3 and suffolk 4 of county thia lawLegis)akure, pursu4nt to the procedures not has ipouo4 via resolution a notice of dicapprevt.1.

function. -r.f -%.ly posformance'er, simulation'or County roles or governmental (b

in any test or ene)roise of any responseIt to shall be a crime e natural for any person 9r men-mado emerpato oonduct r e.. or partic a f. P"a t ion if that test @g massulse innludes as part anereof that the roles or governmental functions of ar.y Suffolk County offiolal .will be performed ce simulated and if the person shill h4ve led te com eu t.

Kurth in oos 3(a).and.3(b).of.*ge. eA pw.-- ply W(th the fracadare.

Section 3.~.

Procedures an.d public yearings, (al' At least 36 days prior to senducting er-participating in a test or eneroise covered by thie law, a person who intende to conduct or -

participate in ouah test er exarc16 shall submit to the Clerk of sne surrou County by 1.veisieture

.hom, a oescription of the proposed activity, s oif,vig typ , wh .

suffo ahd for wnet wherakkeeuntyoftluialemaybepehdryce.torce4 the sales or or simulated.gover neat unctions oc (h) Upon receipt 'of tha submittal required by section 3(a) of thin informf.ncaltheLaw, the person of anycleek edadditional the 04ft 1h county Legislature information required sna&A witnin 7 cays for the Legislature s review of such submitt41, 404 such persen ahn11 aupply the additions 1 incarencion witnin 7 days.

(c) The Legislatura shall gev4ew the submittaa to assure that the times, places, manner, and purposes 'of the proposed performance or simulation of County of suffolx roles or governmental functione do not in terfero with the public's use of or access to public property, do not involve thu WMulhesised Derforma nt's nf gotJessmental dussatana, &..J Jw ..w L .mc m other% se impair the police powers held by the County.

(d) The submitts1 hs.'sardks .de.t.e.tw di. iA,yi' ihs'use obsermahes vah resotutionLegislature any, shall ho 4 tnat proposed performance or simulatten of County roles or governmental functions may inV9lve an interfnrenne with the public's uso of os assess te publie properly, or unauthorized performance of governmental functions, or.r. usurpstk . or other --

impairment of the yvlice powers held by Ene County.

(e) Mter such public hearing, the f.egislature shall determine i

via resolut, Gu whether the proposed performance or simulation of County rolco or governmenta i

functione constitutse an interferonce with the public's use of or accone functions, to public or a property, og unauthorised performance of governmental usurpation cr other' impairment of the County's pnitee pnwers, and in the event of a determination to disapprove the proposed perfermanco or simulation, the Clerk shall asue at transeit to such person a notica of disapprov.1,uf sush,propeeed_per armance simulation Section 4. Specia(Procedures.

(a) If any parann makir. a submission pusouant to Scotida 3 of this law belteves that some or all 'o the data in the submittal merit confidential i treatment, the person shall se infern the Clark at the time of the submiasion. If the Legislature then determines that confidential treatment.is requirud, the. procedures of section 3 shall be modified as necessary and appropriate. ' If the Legislature determines that confidentist treatmant is not required, Lh . person shalt be so adviseq and shall have the option of withdra.#ing the subesittal, or proceeding under the procedures of section 3.

I (b) The Presiding officer is herchy authorized to convene such 898 &44 GS n nf rhn fiec111ature as ma he required in arrier en ennrint r rho rev{ews angt&nger at procedures respired byhis law in a timely n.annor.

Section 5., Penaltime an4 Pomedies.

(a) A vin 14rion of Section 3 of this law shall bo a Cisco A Misdemeance and shall be punishahle by a peritance of not more than one (L) year

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-Intro. Res. Ila. 2127-85 l'a9e 3 4

in prison or a fine and imprisonment. of not acre than cr.c thousand dollars, or by both sucii fir.e (b) A violi:1cn er .. .v..... /iviation of any Sect.on of thiu

'1cw, 3(b), including shall a failure to sebolt information as set forth in Sections 3(a) and in]unctive relief give the County the' option, among ether civil remedies, of cochire.i against the person who is in violation or throatenico violation thereof.

Section 6 separability.

• If any part of this Law be declared invalid er unc'onstitutional by any Court, such declarstionshall shall not affect thu validity of cny cther part.

Section 7. Effective.date.

This Law shall cctivity conducted after such effective date.tako ef fect immediately, and sh41 L apply to any DATED: December 23, 1985' APPRO .BY:

Count? Cxecutive of Sutfo T~ county Date of Approval / / y //

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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 I. INTRODUCTION On January 13, 1986 Suffolk County Local Law No. 2-65 was signed by the Suffolk County Executive. That Local Law makes it a misdemeanor for any person to " conduct or participate" in any

" test or exercise" of any response to a natural or man-made emer-gency situation if that test or exercise involves " performance or simulation" of " roles or functions" of "any Suffolk County offi-cial," if the Suffolk County Legislature has issued a " notice of disapproval

• of the_ test or exercise. Sec. 2(a). The Local Law

'also makes it a misdemeanor to participate in such a " test or ex-ercise" if "a person who intends to conduct or participate" in it shall not have submitted a " description of the proposed activity" to the Suffolk County Legislature at least 25 days beforehand, specifying "how, when, where, by whom, and for what purpose" such

" performance or simulation" is planned. Secs. 2(b), 3(a). Long Island Lighting Company submits this description in compliance with Local Law 2-86. However, as indicated more fully in para-graph 1 immediately below, LILCO believes that Local Law 2-86 would be void if applied to the exercise described in this docu-ment, and waives none of its rights with respect thereto by this submission.

On June 20, 1985, the Nuclear Regulatory Commission (NRC) re-quested the Federal Emergency Management Agency (FEMA) to schedule

, 's a formal graded exercise of the emergency plan for the Shoreham Nuclear Power Station, and on November 12 defined the desired ex-ercise scope.1/ The Commission, pursuant to its radiological health and safety responsibilities under the Atomic Energy Act of 1954, as amended, has chosen to make emergency preparedness, both at reactor sites.and within the surrounding emergency planning zone, a requirement for issuance or retention of full power op-erating licenses. Its licensing requirements are set forth in its regulations at 10 CFR S 50.47. As construed by the United States Court of Appeals for the District of Columbia Circuit, Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert.

denied, 105 S. Ct. 815 (1985), those requirements presently in-clude the satisfactory performance by a licensee in an exercise of its emergency preparedness plan. The exercise is conducted under the supervision of FEMA, which is the lead agency within the fed-eral government for emergency planning functions. Executive Order 12148, 44 Fed. Rec. 43,239 (July 20, 1979). Pursuant to the NRC's request, and in discharge of its lawful duties, FEMA has scheduled an exercise of the emergency plan for Shoreham for February 13, 1986.

The purpose of the exercise will be to test the readiness of the onsite and offsite emergency planning organizations for Shoreham Nuclear Power Station, which is owned and operated by 1/ Letter, Edward L. Jordan (NRC) to Richard W. Krimm (FEMA),

June 20, 1985; letter, William J. Dircks (NRC) to Samuel W. Speck (FEMA), November 12, 1985.

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LILCO. Onsite emergency planning is traditionally a+ licensee function and does not involve the performance or simulation of any local governmental functions. Offsite emergency planning is cus-tomarily sponsored by state and local governments, though not all

! offsite emergency planning functions are inherently governmental 1

in nature or are necessarily carried out by government personnel.

4 j Since the governments of New York State and Suffolk County have refused to engage in offsite emergency planning for Shoreham, LILCO has formed a volunteer Local Emergency Response Organization 4

(LERO), consisting of over 2000 LILCO employees plus several hun-l dred other, non-LILCO members.

The: emergency planning exercise sche'duled for' February 13 is simply the final step in the licensing of Shoreham, which is phys-ically finished and which successfully completed its low power (not above 5% of rated power) testing program in November 1985.

This description of activities to be undertaken in the February 13 exercise is being provided by LILCO pursuant to Local Law 2-86 with respect to the following groups or categories:

A. LERO members; i

B. Members and employees of all support, contractor and

other organizations cooperating with LERO; ,

C. LILCO employees and members or employees of LILCO con-l tractors who, while not participating in the exercise itself, have been involved in preparation for it; D. Federal entities, officials and contractors either con-ducting, observing, grading, or participating in the exercise.

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This description is made subject to the following observa-tions:

1. LILCO believes that Local Law is subject to numerous de-fects on both federal and state law grounds. A preliminary listing of these defects is contained in LILCO's submission to the Suffolk County Executive's hearing on January 6. By submission of this description LILCO does not vaive any of its rights to chal-lenge the Local Law.

2. Included here are descriptions of the various jobs and tasks prescribed in the Shoreham Local Offsite Radiological Emer-gency Response Plan. The description also includes, to the best of LILCO's expectation, informati'on on the manner in which rele '

vant LERO or other persons' performance of these jobs will be dem-onstrated in the February 13 exercise, and in preparations for it.

3. The February 13 exercise, while involving a test of the preparedness of LERO, does not involve actual implementation of the Shoreham Offsite Plan. Implementation occurs only pursuant to a full power license issued by the Commission and in response to an actual emergency, and involves the actual performance or ful-fillment of roles with the actual intent and effect of guiding public behavior. Rather, the February 13 exercise is simply the final stage in the federally mandated plannino process, designed to gather information about organizational and individual readi-ness and proficiency, and to assist the NRC in its licensing de-termination. Thus there will be no " performance" of " functions or roles" of Suffolk County officials in the February 13 exercise l

4 since the plan will not be being implemented. No actions will be taken which will have any compulsive effect on the public at large. There vill be no holding-out to the public of any legal authority with respect to it, nor any contact with the general public in any governmental capacity, actual or apparent. There vill be no usurpation of the police powers of Suffolk County.

There will be no violation of any Suffolk County or New York State laws predating the Local Law, nor interference with public use of or access to public property. Nor will there be any conflict with the decision of the New York State Supreme Court in Cuomo v.

LILCO, Consol. Index No. 84-4615 (N.Y.Sup.Ct., Feb. 20, 1985),

N.Y. Law Journal, April 19, 19'85, p.16, col.3', appeal docketed

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(N.Y. App. Div., April 26, 1985), since that decision concerned issues of LILCO's legal authority under New York State law to implement its plan, not its authority to engage in plannino.

To 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 from those conducted at other nuclear power plants. Performance of governmental functions there, too, is simulated. Streets are not blocked, for instance, in other exercises; nor are general popula-tions evacuated. Roles can also be " simulated" by such devices as messages and instructions from exercise controllers. What is being tested in each case is not who simulates what, but the abil-ity of the response organization to deal effectively with various

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individuals and groups that may need to react in an emergency. As will be shown below, the actions involved in the exercise involve only types of " simulation" which Local Law 2-86 does not purport to prohibit.

4. LILCO has internal drills scheduled for the period prior to February 13. It is impossible to tell from the face of Local Law 2-86 whether such internal drills and tests are intended to be c6vered by it. LILCO believes that they are not, under any ratio-nal interpretation. None of them will involve any conduct intend-ed to have any compulsive'effect on the public at large. None of them will involve any holding-out to the public of any legal au-thority with respect to emergency response or any contact with the public in any governmental capacity. None of them will involve any violation of Suffolk County or New York State law predating the Local Law. Nevertheless, since the functions to be tested in those internal drills and exercises are covered in this descrip-tion, LILCO files this description to cover them as well as the February 13 exercise.

5. None of the LILCO/LERO persons or their contractors who will participate in the February 13 offsite emergency olanning ex-1 i ercise has access to the scenario for that exercise. FEMA consid-I ers it important to the integrity of the exercise that the con-tents of the scenario not be divulged to any person participating

! in it. Further, in this case FEMA has not divulged the specific exercise objectives to participants. As a result, there are no submissions of confidential material pursuant to section 4 of r

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Local Law 2-86 with this description. The generic tasks to be performed, and the specific skills to be demonstrated with respect to it by any given individual or organization, do not change, how-ever, with the specifics of exercise scenarios. LILCO is confi-dent that the Legislature should be able to assess the consistency of the exercise with Local Law 2-86 without resort to any of these confidential materials.

II. EXERCISE DESCRIPTION A. Description of the Proposed Activity: The Shoreham Offsite-Emercency Planninc Exercise and the Plan to be Exercised Local Law 2-86, section 3(a), requires that anyone proposing to conduct or participate in an emergency planning exercise submit to the Clerk of the Suffolk County Legislature a " description of the proposed activity" if the roles of Suffolk County officials "may be performed or simulated" in it. The following material is submitted pursuant to that requirement.

LILCO understands that the FEMA graded exercise scheduled for February 13, 1986 will involve activation of the full complement

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of LERO personnel (approximately 1275 persons per shift) and rele- t vant personnel from support and contractor organizations and coo-perating governments. The exercise will involve testing enough of the 35 standard core elements of FEMA exercises 2/ to permit li-censing conclusions to be drawn about the overall adequacy of 2/ These are set forth in FEMA, Modular Format for Uniformity of Radiological Emergency Preparedness Exercise Observations and Evaluations (June 1983).

9 LILCO's emergency planning organization, the proficiency of indi-viduals in it, and the sufficiency of their training and equip-ment. FEMA does not itself intend to draw a " reasonable assur-ance" finding itself from the results. Letter, Samuel W. Speck (FEMA) to William J. Dircks (NRC), October 29, 1995. However, the exercise have great value in assessing two vital questions -- the actual capabilities of the LERO organization and its ability to cope with ad hoc governmental participation. This vill shed highly useful light en the appropriate ultimate disposition by the.

NAC of the Shoreham licensing proceeding. )

General faniliarity with other exercises held under FEMA's auspices' suggests that the exercise vill be on the order of~24 hours or less in duration; that it will require LERO and support i organization personnel to demonstrate proficiency in their skills and in the use of the facilities and equipment available to them, sufficient to support a response to an emergency at Shorehan if one ever occurred. However, as vill be discussed more fully below, it vill not require them to make use of any Suffolk County facilities (the County having forbidder. their use in the plan).

Nor vill it require interference with public use of or access to public property (see Sections II and III.1 below); involve the unauthorized performance of governmental functior.s (see Sections II and III.2 below); or involve the usurpation or impairment of Suffolk County police powers (see Sections II and III.3 below).

As sunmarized above and described more fully belov, the vast najority of LERO functions in an exercise are entirely internal to l

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-g-LERO, conducted on property owned or controlled by LILCO. As to those. functions which, in an actual emergency, would be undertaken in public areas and involve. contact with the general public, they can be tested in a fashion which permits demonstration of individ-ual and organizational proficiency without requiring any impact on the general public.

The plan to be exercised will be the LILCO-prepared Shoreham Nuclear Power Station Local Offsite Radiological Emergency Re-sponse Plan, the most recent version of which to be evaluated thus far by FEMA is Revision _5. A final pre-exercise revision, Revi-sion 6, was filed with FEMA and all other concerned parties on January 10, 1986; it does not change the basic concepts'of op-eration under the plan.d/

The Shoreham Offsite Plan is not, as has sometimes been sug-gested, an exclusively nongovernmental plan. Various agencies'in the federal government -- NRC, FEMA, the Department of Energy, the Coast Guard, and the Federal Aviation Administration, among others

-- will play their customary part in implementation. Similarly, the State of Connecticut has agreed to perform its normal role in implementing 50-mile ingestion pathway functions, In addition, the Nassau veterans Coliseum, which is owned by the government of Nassau County, will be used as a reception center for evacuces and Nassau County will provide necessary related police services.

1/ Revision 6 alters the primary area of the Nassau Coliseum to be used as e reception center, revises one bus transfer point, and makes a number of small miscellaneous changes. References in this Description will be to Revision 5 except as otherwise specified.

Finally, both Suffolk County and New York State have conceded that they would in fact respond to the best of their ability in the event of an actual emergency involving Shoreham, pursuant to the provisions of Article 2-b of the New York State Executive Law and their general police-power obligations;S/ they just refuse to en-gage in advance planning for such a response for Shorehan, I

Further, the Shoreham Offsite Plan and its implementing pro-cedures contemplate the possibility of just such a_d_ hoc participa-tion, S e. e , e . h , Plan, Sec. 1.4 (Legal Authority); Sec. 2.2 (Sup-port organizations), esp, pages 2.2-4g and 2.2-4h; Sec. 3.1 (Command and Control), esp. page 3.1-1; Sec, 3.6 (Protective Ac-tiens), esp. page 3.6-6, 3,6-7; Sec. 3.8 (Public Information),

1/ In a press release by Governor Cuomo dated December 20, 1983, he stated that "(oJf course, if the plant were to be operated and a misadventure vere to occur, both the State and County would help to the extent possible; no one suggests otherwise." Similarly, Suffolk County Executive Cohalan was quoted in the June 15, 1985 New York Tirres as stating:

In that event (i.e., Shorehan 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, 1965 in response to a letter from LILCO coun-sel, Hr. Reveley, County Executive Coholan stated:

In the event of a radiological accident, I, as the County Executive vill 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 Lav.

Copies of Governor Cuomo's press release (Attachment 2), Mr. Rev-eley's letter to Suffolk County Attorney Ashare (Attachment 3),

and County Executive Cohalan's reply (Attachment 4) are attached to this Description.

11-esp. page 3.8-6; sec. 4.1 (Facilities and Equipment -- Local EOC),

esp. page 4.1-1; sec. 4.7 (security at LERO Facilities). See also Procedures, OPIP 3.1.1 (Command of Emergency Operations), page 15, page 80 (pera. 14 (Rev. 6]); OPIP 3.6,3 (Traffic Control), pages 3 (paras. 5.1,5, 5.1.6), 4 (para. 5.3,9), 62-54; OPIP 3.6.6 (Ingesetian Pathway Protective Actions), page lea; OPIP 4.2.3 (Re-ception Centar Activation and Operation), page 9 (para. 2.5); OP:P 5.1.1 (Training), page 5 (para. 5.1.4.4). Thus an exercise which contemplates that State and County officials who refuse to partic-ipote in planning would, in fact, respond in an actual emergency on an ad hoc basis is totally consistent with the plan es it nov exists.

B. Functione Actually to_be Performed Durina an_Exerc!qe, Local Law 2-86 requires, section 3(a), that the description of a proposed exercise include "how, when, where, by whom, and for vnat purpose the roles or functionc of Suffolk County officials vill be performed or simulated" in it, The following material is ,

submitted pursuant to that requirement.

The nearly 1300 LE's0 billets in the shoreham Local Of fsite Emergency Response Plan 5/ sre broken down into 66 job categories. l These are reflected in the pri. mary organizational procedure for the Shorehnm plan, OPIP 2.1,1. (A complete and updated copy of

}/ The exact total in Revision 5 is 1275 persons; in Revision 6 it is 1285. These numbers do not include non-LERO personnel in cooperating extra-LERO organizations, such as ambulance and ,

ambalette drivers.

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the shoreham plan is provided for the easy reference of interested legislators with this submission.) These 66 job categories are further described in the attached document entitled "Shoreham Nu- ,

1 clear Power Station: Local Offsite Radiological Emergency Re-sponse Plan, LERO Job Description Sumr.ary" (Attachment I hereto).

For each of the 66 categories, it provides the following informa- l tion:

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1. Jcb number (an organizational device for convenience] I i

2. LERO Job Description or title l

3. Number of persons per shif t in tne job l l

4. Location  ;

I S. Whether or not a person in the particular joo description j may have any contact with governmental agencies, or with  ;

1 nongovernmental support or service organizations, in the perfor- I mance of chat job in a r_eal emergency.5/ (Note: the fact of con- I tact does not itself cor. note the performance of roles or functions l 1

of governmental officials.] I l

6. Whether or not the person in the particular job descrip- I l

tion .T.ay have any contact with the general public in the perfor-mance of that job in a real emergency. [ Note: the fact of con-1 tact does not itself connote the performance of roles or functions i l

of governmental officials.] l l

1/ Support organizations are ones with a defined role in the Shorehan plant service organizations are ones which could have a role in emergency response but no def!ned role in the Shoreham  !

Offsite Plan.  !

l l

l 1

_ J

~ 7 Whether or not the person in the particular joo descrip-tion would be performing functions in a real emergency which, in Suffolk County's view, might be thought to connote exercise of po-lice powers or legal authority; and if so, whether those functions involve decision-making (D), implementation (I), or. communication (C).1/

8. Remarks, describing the general nature of each job, with focus on elements of contact with persons or organizations outside LERO and on functions that might be thought, validly or not, to involve the exercise of legal authority if implemented in an actu-al emergency, with selected references to the Shoreham offsite Plan and implementing procedures (OPIPs).. ,

1 Attachment 1 displays, among other information, the follow-ing:

(a) Contact with Succort, Service, or Government Orcanizations There are 39 job categories, involving slightly over 800 workers, which may involve contact with public or private organi-zations other than LERO. The vast majority of these positions are concentrated as follows:

1. Radiation Monitoring and Decon (jobs 18, 19) 132 2, DOE Dose Assessment (jobs 20-24) 9

3. Traffic Guides and Lead Traffic Guides (jobs 28, 29) 174

4. Road Crews (job 31) 38 7/ LILCO does not agree that any of these roles necessarily in-volve attributes of police power or legal authority under New York law. Certainly, in a FEMA graded exercise, any performance involving such attributes woul be simulated.

L

- 5. Bus Drivers (job 45) 390

6. Reception Center Security (job 56) 30

7. Communicators (job 59) 10 783 Since contact with outside organizations does not involve either the exercise or the holding-out of actual or apparent governmental authority, and since the contact involved varies greatly,E/ this information on contact with outside organizations is provided sim-ply for the Legislature's information.

(b) Contact with the General Public There are 18 job categories, involving about 720 workers, which may involve actual or po.tential for contact with the general public in a real emergency. Again, these functions are concen-trated within a very few job descriptions:

1. Traffic Guides (job 29) 165

2. Road Crews (job 31) 38

3. Route Alert Drivers (job 40) 60 g 4. Transfer Point Coordinators (job 44) 22 c). 5. Bus Drivers (job 45) 390

6. Reception Center Security (job 56) 30 705 Once again, since the mere fact of contact with the general public 1/ The jobs in a real emergency of the Hospital Coordinator, the Public Services Liaison, the Ambulance Coordinator and the Radia-tion Health Coordinator (jobs 5-8), for example, involve frequent communication with cognizant hospitals, ambulance companies, and local law enforcements organizations, but only one person each.

By contrast, the job of bus driver in a real emergency involves no contact with outside organizations beyond picking up buses from companies under contract with LERO to provide them, but involves 390 positions. Similarly, the only contact of traffic guides (165 positions) and road crews (38 positions) with outside organiza-tions in a real emergency is to cede authority to, and offer to assist, any Suffolk County police arriving on the scene.

u

1 does not involve the exercise or holding-out of actual or poten-tial legal authority, and since the nature of the contact varies greatly,E/ this material is provided simply for the Legislature's information.

(c) Activities Challenced as Potentially Involvinc Exercise of Local Authority (Under Suffolk County's Theory)

There are 15 job categories, involving some 283 LERO person-

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nel, which appear to have the potential to be'rfgarded.as involving the exercise of legal authority, as LILCO understands Suffolk County's view of New York State law, if they were per-formed in an actual emergency. These are the jobs which LILCO un-derstands to be the. primary focus of the Suffolk County Leg.isla-ture's interest. Again, the populations in these job categories are highly concentrated: each has only one occupant, save four:

lead traffic guides (9 positions), traffic guides (165 positions),

road crevs (32 positions), route alert drivers (60 positions).

Detailed descriptions of the actual constituents of each of these positions can be obtained from the information on the at-tached LERO Job Description Summary (Attachment 1) and in the ref-erences listed en it. However, in the interest of providing a shorthand summary, each of these specific jobs is tabulated below, 9/ Traffic guides (165 positions) would be in contact with mem-bers of the general public at intersections where they were facilitating traffic flow; bus drivers (390 positions) would be in contact with only those members of the general public voluntarily desiring to board their buses; the ambulance coordinator (1 posi-tion) could come into contact with the general public only if someone, not pre-identified, called in directly to request an am-bulance,

. -lG-with a further description of whether the nature of the authority potentia 11'y being implemented in a real emergency would involve decision-making (D), implementation of decisions made by others, (I), or merely communication of information beyond LERO (C).

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l Type of 22k_1 Descriotion Positions Function 1 Director of Local Response 1 D,I 2 Manager of Local Response 1 I,C 3 Health Service Coordinator 1 C 3 Radiation Health Coordinator 1 C 25 Evacuation Coordinator 1 I,C 23 Lead Traffic Guides 9 I,C 29 Traffic Guides 165 I 31 Road Crews 38 I 36 Public Schools Coordinator 1 C 37 Private Schools Coordinator 1 C 38 Health Facilities Cocrdinator 1 C -

39 Home Coordinator 1 C 40 Route Alerting Drivers 60 C 60 Coordinator of Public Information 1 C 62 Supervising Service Operator 1 C The persons fulfilling the LERO job descriptions above vill not actually exercise any legal authority not possessed by every ordinary citizen, nor vill they perform any role or function of Suffolk County officials, in the February 13 FEMA graded exercise, To the extent that the roles played by them in the graded exercise could be construed to involve attributes of potential roles or j functions of Suffolk County officials if actually carried out in a real emergency, those at ributes will be simulated in the exercise in a manner sufficient to permit demonstration of proficiency.

This vill be done without any holding-out to the public of legal j' authority, without any contact with the public other than that of ordinary citizens (except as approved by Legislature), without any l

.- disruption of public access to or use of public prCperty, and without any violation of pre-existing New Yort or Suffolk County law.

Probably the best way to illustrate this is to take the list of functions involved in the Shoreham Offsite Plan which Suffolk County has asserted could not be lawfully implemenced by LILCO pursuant to its cvn legal authority under New York law. These matters have been recently summarized on pages 13 and 14 of a December 26, 1985 letter from David A. Brownlee, Esq., one of counsel for Suffolk County in the Shoreham proceeding, to Samuel W. Speck of FEMA, and appear to be the following:lE/

1, Exercise of basic ccmmand and control functions in'the offsite area during an emergency.

Command and control functions are generally thought of as those fundamental attributes of authority needed to implement an emergency plan or similar evolution. There will be no exercise of any command and control functions offsite on February 13. For in-stance, issuance of instructions to traffic guides to !mplement traffic control and facilitation strategies on roads in the EP2, and their actual implementation of those instructions, would be attributes of offsite command and control. However, no such 10/ These functions have been expressed in numerous and slightly varying ways over time, beginning with suffolk County's initial 10

" legal authority

• contentions filed with the NRC Atomic Safety and Licensing Board, continuing through the County's complaint in Cuomo v. LILCO and Judge Geiler's decision, and in various papers since. Various of these compilations are recited in Mr.

Brownlee's letter, and use of this version is intended simply for convenience.

instruction vill be given or implementation effected.11/ Traffic guides will not set up their equipment in public roadways to im-plement traffic control strategies, or enter onto the roadways themselves and assist traffic flow with arm movements, or take any other action which could be.seen as a holding-out or exercise of governmental authority. Quite the opposite. Traffic guides vill be alerted by established procedures to muster at their staging areas (on LILCO property). If simulated scenario conditions vould indicate that an evacuation of all or a portion of the population of the EPZ is recommended to minimize public exposure, they (or a portion of them)'will be deployed from the staging areas to travel-along public roads like any other citizens, observing. all traf fic '

rules and with appropriate equipment in their vehicles, to their predesignated traffic control posts (typically, intersections).

They will park their cars in legal spots near their assigned posts; set up their licensed two-vay radios in the cars; and re-port their presence on station. They will then avait further in-struction. They vill not unpack their equipment from their cars or take any other action of a potentially provocative nature. If FEMA vishes to inventory their equipment, or to test their knowl-edge of their assigned traffic control strategy, or'their profi-ciency in traffic direction, all of these can be demonstrated on 11/ The following assertions for this and other job descriptions are LILCO's expectation of what FEMA vill require, based entirely on its knowledge of FEMA procedure in other exercises at other nu-clear power plants, and on LILCO's strong desire to avoid confron-tation in the course of the exercise.

- private property. In short, there vill be no more exercise of

" command and control" functions here than in the dispatch of a cab or a delivery or repair truck by a central office of a private firm. Nor vill there be in any other offsite function, as can be seen in the descriptions below.

2. Determination of how to protect the health, safety and welfare of persons living within the EPZ and ingestion path-vay.

There vill be no determinations, in fact, of how to protect the health, safety and welfare of persons within the EPZ and the ingestion pathway. What will happen, roughly, is this: exercise controllers (federal employees) operating on LILCO property vill communica~te to various members'oIf the LERO organization, directly

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or indirectly, certain assumed information about plant conditions, atmospheric and weather conditions, and the like at various times.

Those persons in the LERO organization responsible for communicating that information to decision-makers within LERO vill do so by established channels over internal or licensed or commer-cial means. Those persons who are charged with responsibility in a real emergency for making decisions (principally, the Director of Local Response, the Manager of Local Response, the Health Ser-vices Coordinator), in consultation with those responsible for evaluating information, vill attempt to determine what, in the l

l event of a real emergency, would be the most appropriate course of action to minimize harm to the general public. They will not im-piement the results of this analysis in any fashion impacting on the general public, though they vill communicate it to appropriate

arms of LERO with the intent of having LERO react internally and simulate those functions which, if actually undertaken in a genu-ine emergency, would be calculated to minimize harm to the public.

For instance, if the scenario described conditions which, upon analysis and in conformity with established procedures, would var-rant the sounding of the sirens in the EPZ during a real emergen-cy, the Director of Local Response would instruct LERO internally to take all steps right up to the point of, but not including, ac-tuating the sirens. The determination whether to actually sound the sirens on February 13 is one on which LILCO vill request this Legislature's views (see pages 21-22, below).12/

3. Determinatio'n of whether EPZ resid'ents should be evacu-ated or sheltered and, if so, where and how.

There vill be no determinations in fact as to whether EPZ residents should be evacuated or sheltered, or where or how. As a point of information, the manner of evacuation or sheltering, once those decisions have been made (actually or hypothetically) is a standard matter under the Shoreham Offsite Plan: evacuation routes are prescribed, and guidelines for sheltering in the home or other buildings are a standard part of the protective action recommendations procedure. What will be conducted on February 13 is an entirely internal exercise, totally without involvement of the general public, to test the analytical skills and knowledge of 12/ The same vill apply to the actual broadcasting of EBS mes-sages and distribution of the emergency planning brochure to the general population within the EPZ.

the LERO management team and the effectiveness of'the LERO infor-mation transmission and analysis organization. The effectiveness of any of the results of this process vill be purely simulated, purely hypothetical.

4. Notification of the public concerning the' emergency and communication of recommendations concerning evacuation or sheltering.

In a real emergency the general public would be notified of its onset via the Prompt Notification System, consisting of 89 si-rens throughout the EPZ. In the event of siren failure of any magnitude (determined by a prompt, statistically based telephone survey throughout the EPZ to predesignated phone numbers), Route Alert drivers would drive.throughout any area.or' areas riot ~previ-ously covered, in cars equipped with loudspeakers, and would also make special trips to notify preregistered deaf persons. Messages conveying information concerning the emergency and protective ac-tion recommendations would be broadcast over the Emergency Broad-cast System (EBS). In addition, the public vill have been pre-pared for this information by advance circulation to every household in the EPZ of an emergency planning brochure.

None of these actions, at least so far as they impact the general public, need be carried out on February 13, and LILCO seeks the Suffolk County Legislature's guidance on its preference with respect to them. Taking them in order:

a. Sirens: FEMA vill surely want LILCO to demonstrate that its procedures for determining when to activate the sirens, and for actually activating them, are understood. LILCO vill, it

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expects, be required to follow'them right to the point of actuation. However, actuation itself need not be accomplished to determine the LERO organization's capabilities. LILCO believes that it would be far preferable to actuate the sirens in place on February 13, but requests the Legislature's specific guidance on this point.12/

b. EBS Messaces: The appropriateness and effectiveness of LERO's reaction to events in the scenario and their communication to the public can be tested in a manner similar to that of the si-rens: namely, by requiring the preparation of EBS messages, and their transmission to and receipt by participating stations. Thus

.the LERO-specific aspect of EBS message testing -in- an exercise-is

a. total.1p internal matter with no impact on the public at all.

Nor need the capabilities of the stations' transmitters be demon-strated by broadcast of potentially alarming messages; if the sta-tions in the system do broadcast a message, it can be a very neu-tral one which merely demonstrates their transmitters' operability

, on that day. Such operability can be established by means other than requiring broadcast of a Shoreham-specific EBS message on February 13, however. As with sounding of the sirens, LILCO be-lieves that it would be preferable for the EBS stations to broad-i cast a message relative to Shoreham on February 13, but that it is

, not absolutely necessary as long as the remaining functions are 13/ At some point FEMA will require LILCO to perform an accep-tance test, known as a " FEMA-43" test, involving siren activation.

It can be conducted on February 13 or at another time.

. accomplished.' LILCO again asks the Suffolk County Legislature for its specific guidance on this matter.

c. Public Information Brochure: The public information bro-chure for Shoreham has been prepared in final form, following lit-igation before the NRC Licensing board on its contents. LILCO is prepared to send it out, but is also prepared to refrain from doing so. LILCO believes that the necessary ability to distribute the brochure can be demonstrated by means short of actually mailing it out. Similarly, no one has ever asserted that the gen-eral public of Suffolk County is any less capable than the popula-tion of any other area of understanding the contents of an emer-gency planning brochure, and no ,other brochure approved in litigation has ever been found to have been unusable once distrib-uted. Thus LILCO is prepared to forgo, for the time being, dis-tribution of the brochure approved by the Licensing board, but here also seeks the specific preference of the Suffolk County Leg-islature.

5. Direction of any evacuation effort and control and man-agement of evacuation traffic In a real emergency the evacuation effort is accomplished by the teamwork of three groups: (1) traffic guides; (2) road crews and route spotters, who look for areas of congestion, clear ob-structions off roads, and dispense fuel to cars needing it; and (3) bus, ambulance and ambulette drivers to care for the evacua-l tion of those not able to leave in their own or neighbors' automo-biles. Each of these groups, in turn, is supported by an organi-zational chain of command, operating entirely on LILCO property, which mobilizes, equips and dispatches them.

In an exercise, the internal organizational effort would pro-ceed exactly as in a real emergency: traffic guides, road crews, bus drivers and ambulance /ambulette drivers veuld be mobilized and equipped as in a real emergency. All of these processes occur on LILCO property. None of them involves any contact with the pub-lic. None of them involves any holding out of legal authority or any violation of New York or Suffolk County lav predating Local Law 2-86.

From the point of mobilization on, the functions of each of these categories of workers vill be modified as necessary to avoid any violation of law, while still permitting demonstration of ac -

.tual proficiencys The manner'in which traffic guides will perform in an exercise is outlined above in Paragraph II.3.(c)(1), pages 17-19 above. Road crews will mobilize to pick up their equipment (trucks of various descriptions), then proceed to their stations, where they will report their presence and either park in a legal spot or continue to travel on the highway in accordance with their instructions in the Shoreham Offsite Plaa and all highway laws.

They will not clear obstructions off any highway. Any need for any demonstration of proficiency in this task can be accomplished on private property. Similarly, fuel truck drivers will pick up their trucks and drive, following all highway laws, to their de-ployment stations, where they will report their presence by radio, park in a legal parking spot, and avait instructions. They will not dispense any fuel while on station. Any need to demonstrate proficiency in distribution of fuel can be satisfied on private

property. Similarly, the route spotters will drive their automo-biles along their assigned routes in accordance with all applica-ble highway laws. Since their cars need no markings in any event, they should be able to perform their assigned tasks (recognizing, of course, that there will be no steps actually effected as part of the exercise to alleviate any highway congestion reported by the route spotters). One or more route spotters may also observe and report on highway congestion from helicopters under contract to LILCO.

Finally, bus drivers can be expected to be mobilized, and dispatched to bus companies. There, some of them may be expected to be instructed to. pick up buses and dr-ive their routes inLthem in conformity with all applicable highway laws. Other bus drivers may be expected to drive their routes, again in conformity with all applicable highway laws, in their automobiles.

Execution of duties on February 13 by LERO members involved in implementing an evacuation, if a real emergency were to occur, is thus modified to eliminate any need for actual or apparent ex-ercise of legal authority; to avoid performance in fact of any functions normally performed by Suffolk county officials; and to avoid violation of pre-existing state and local laws. Demonstra-tion of those individual and organizational skills which, if per-formed for effect on public property would violate existing law, can be accomplished on private property or simulated.

6. Determination of protective measures throughout the in-gestion pathway concerning food, produce and other health and safety issues and notification of the public concerning such measures.

Measures involving the ingestion pathway are longer-term than those in the EPZ. They involve control of potentially contami-nated foodstuffs, water supplies, and the like, for populations at a distance beyond potentially health-threatening dose levels. It is LILCO's understanding that these functions are typically simu-lated internally in other exercises. In a real emergency the Shoreham Offsite Plan calls for such measures as keeping contami-nated produce and milk off the market by contacting extensive, predetermined lists of produce vendors and dairies and offering to buy up all contaminated produce and milk at market (i.e.,

uncontaminated) prices. It also provides fo notifying the public by EBS message of potential areas of contaneir ation, and of.' mea-l sures to avoid it. In this exercise, however, LILCO vill take no d

steps that would involve any holding-out or exercise of police power authority or any exercise of Suffolk County or State offi-cials' roles or functions, nor any EBS messages to the public on ingestion pathway measures. LERO personnel will evaluate informa-tion presented to them in the unfolding of the scenario. Any de-cisions made internally by LERO on the basis of that information could be implemented in the event of a real emergency, but any such effectuation will only be simulated in the exercise.

7. Determination of decisions concerning recovery and re-entry steps after a nuclear accident and notification of the public concerning such decisions.

Recovery and re-entry decisions are the last ones to be taken in emergency response, and presuppose the reduction of radiation in evacuated portions of the EPZ to levels that no longer pose

. ~. -- . . .

-27 ,

unreasonable risks of contamination. In a real emergency a Recov-ery Action Committee consisting of LERO personnel, in conjunction with participating governments, would evaluate information on ra-dioactivity levels in the EPZ, formulate recommendations to the general public, institute measures respecting restoration of af-fected areas to pre-emergency condition, and communicate informa-tion on these matters to the general public via the EBS and by press briefings. In the February 13 graded exercise, the analyti-cal portion of the process will be replicated, with all required communications beyond LERO and all first-hand information gather-ing simulated. There vill be no exercise of actual or apparent police power, no holding-out or' communication to the public; no performance of Suf, folk C'ounty or State officials' duties, no vio-lation of pre-existing Suffolk County or State law.

The net result of all of this is that the LERO organization, and individuals in it, vill demonstrate the capacity to respond successfully to a radiological emergency at Shoreham, but vill do so in a way that does not require them to engage in any perfor-mance in fact of Suffolk County officials' roles or functions, nor any holding out to the general public of governmental authority, nor any violation of pre-existing New York State or Suffolk County law. Those aspects of organizational response which, if actually performed by LILCO or LERO vould violate New York State law as construed the trial court in Cuomo v. LILCO, vill be simulated.

Where FEMA deems it necessary to test individuals' proficiency in skills which cannot presently be performed for effect without

1

. 1

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violating New York law, such skills demonstrations can be accom-plished on private property.

III. IMPLICATIONS FOR COMPLIANCE WITH LOCAL LAW 2-86 From the above, the following can be seen:

1. There will be no interference with the public's right of use of or access to public property. The public effect of the ex-ercise, such as it is, will be limited to traffic and parking.

The traffic " load" will involve mobilization travel on public highways of LERO members' cars and then, later, some fraction of available buses (standard school buses), ambulance /ambulettes, and route spotters and route alert drivers. Many of these exercise.-

related vehicles would be on the road in any event in the normal

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course of business. This additional traffic is distributed throughout the 175 or so square miles of EPZ. This is a negligi-ble, probably undetectable traffic effect against the background of an EPZ which has within it between 140,000 and 150,000 resi-dents and on the order of 40,000 jobs to which people commute by car daily. Similarly, the parking " load" will consist of the traffic guides' cars, parked in legal places near intersections scattered around the EPZ, plus another dozen or so fuel and tow trucks similarly parked. There are thousands of cars parked daily in legal spots along roads within the EPZ, and unused space for thousands more. There will be no other presence whatever on pub-lic property associated with LILCO's participation in the exer-cise. Thus the provision of Local Law 2-86 (Section 2(c)) prohib-iting interference with public use of or access to public property will not be violated.

F

2. There vill be no performance at all by LERO of Suffolk County governmental functions on February 13. There vill be no protective action recommendations made to the public. There vill be no obstruction of streets or rerouting of traffic. There vill be no evacuation of any members of the public. There vill not even be, if the Suffolk County Legislature refuses to permit it, any notice to the public of the exercise by siren, EBS message or brochure. A decision-making process will be activated on private property on the basis of hypothetical, assumed facts. All that vill be tested are the organizational competence and individual proficiency necessary to inform that process and bring it to the point where, if actions impacting the public -- e.g.,

communicating and implementing a protective action recommendation

-- had to be taken, they could be. Any actions which, if taken, would potentially affect the public will be totally simulated.

Thus the provision of Local Law 2-86 (Section 3(c)) against unauthorized performance of Suffolk County government functions is not violated.

3. There vill be no usurpation of Suffolk County police pov-ers. Though Local Law 2-86 does not define the term " usurp," its common dictionary meaning is "to seize or hold (as office, place or powers) in possession by force or without right"; or, "to take the place of by or as if by force; supplant; seize or exercise au-thority or possession wrongfully." (Webster's Ninth New Colleciate Dictionary, 1983). Unless the Suffolk County Legisla-ture had in mind something considerably different than the n .

. ordinary definition of " usurp," there is simply no way the February 13 exercise can be thought of as involving usurpation of Suffolk County's governmental or police powers by LERO. There vill be no exercise of Suffolk County governmental powers whatever by LERO, much less any forcible or otherwise wrongful seizure of them. The exercise vill not violate this provision (Section 3(c))

of the local law.

IV. SIMULATION OF ROLES OF SUFFOLK COUNTY OFFICIALS Simulation of Suffolk County governmental roles or functions in a test or exercise of an emergency response plan is not itself made unlawful per se by Local Law 2-86. A person planning to con-

-duct or participate in a test or exercise in which such roles or functions will be performed or simulated is required to file a de-scription of the proposed test or exercise with the clerk of the 4

Suffolk County Legislature at least 25 days in advance. (Section 2(b)). And Local Law 2-86 makes it made a crime to conduct or participate in a test or exercise of an emergency response plan involving performance or simulation of such roles if the Suffolk l

s County Legislature has previously issued a notice of disapproval.

(Section 2(a)).

The criteria by which the Suffolk County Legislature vill judge performance or simulation, however, are set out in section l 3(c). That section outlaws simulation of governmental roles or functions only if it possesses any of three additional character-istics:

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1. It interferes with the public's use of or access to pub-lic property; or

2. It involves the unauthorized performance of governmental functions; or

3. It usurps or otherwise impairs the police powers held by the County.

The Shoreham Offsite Plan does not contemplate the simulation of any specific Suffolk County governmental position or function.

The positions set forth in the Plan and filled by LERO are those necessary to fulfill federal licensing requirements, without heed

. to any specific Suffolk County positions or functions. This is not to say that suffolk County governmental personnel could not 4

fill those places; indeed they could (and the Plan goes to consid-erable lengths, see Item II.A, especially pages 10-11'above, to provide for the insertion of Suffolk County personnel if they should appear and desire to participate). It is merely to say that the ultimate LERO roster was developed with reference to ful-

fillment of functional federal requirements rather than Suffolk County positions or roles.11/

LILCO understands that the federal component of the February 13 exercise may involve ad hoc participation by federal officials or contractors simulating the performance of various roles of the Suffolk County and, perhaps, New York State governments. LILCO li/ Indeed, counsel for Suffolk County, Mr. Brownlee, conceded in his December 26, 1985 letter to Mr. Speck of FEMA that Suffolk County officials have no specific " identifiable role" in the Shoreham Offiste Plan. Id. at 22.

has no specific knowledge of what roles may be contemplated for simulation or how they would be fulfilled in the course of the exercise. However, unless that simulation itself involves, in fact, the impairment of public access to or use of public proper-ty, the performance in fact of governmental functions, or the usurpation of Suffolk County police powers, it is not prohibited under Local Law 2-86, even in its own terms.

Advocates for the County's position frequently point to two judicia'l decisions as support for the County's refusal to engage in emergency planning for Shoreham and its resistance to any other organization's taking its place.1E/ It is well to place those de-cisions in: context. The first of1them, Citizens for an Orderiv Enercy Policy v. County of Suffolk, 604 F. Supp. 1084 (E.D.N.Y.

1985), stands for at least the District Court's support for the proposition that the County cannot be compelled, under the Atomic Energy Act of 1954, to engage in emergency planning for nuclear power plants. However, Judge Altimari did not concede to the county carte blanche authority to frustrate federally required emergency planning or the federal licensing process:

Certainly the County may not require LILCO to comply with the County's requirement for a satisfac-tory RERP [ Radiological Emergency Response Plan];

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 op-eration based on the county's opinion that no satis-factory 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 11/ See, e.g., Mr. Brownlee's December 26 letter to Mr. Speck, at 24.

the judgment 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.

Similarly, while the Prospect v. Cohalan litigation, 493 NYS 2d 293 (1985) includes the proposition that the county Ex-ecutive cannot implement emergency response in defiance of the County Legislature's wishes, the Court of Appeals also upheld the Appellate Division's refusal to bar the County Executive from engaging in emergency plannino, as distinguished from im-plementation, by gathering information. The conduct of a grad-ed FEMA exercise is simply the final stage in gathering infor-mation on emergency planning at Shoreham. To the extent that

' th'e simulated ad' hoc participation of Suffolk County assists in that process it is not only of value to the federal regulators who will make the ultimate licensing decision on Shoreham; it is also consireent with the decisions of the New York State courts in Proscect v. Cohalan.

V. CONCLUSION This demonstration has provided, in compliance with sec-tion 3(a) of Local Law 2-86, a description of the activity pro-posed, namely, a February 13 FEMA graded exercise. It has also provided a description of the LERO organization and the func' tions which each of the major job categories performs under the Shoreham Offsite Plan. It has also described, also in compliance with section 3(a) of the Local Law, what will be done, how, when, where, by whom, and for what purpose, with

particular reference to stated areas of County concern with re-spect to preservation of its police powers.

LILCO believes that the February 13 exercise will not in-volve any interference in fact with public use of or access to public property. Nor will it involve performance whatever of the functions or roles of Suffolk County officials. To the ex-tent that implementation in a real emergency could involve such performance, the pertinent areas have been simulated in the ex-ercise. Since there is no performance of Suffolk County gov-ernmental roles, perforce there can be no usurpation of them.

LILCO submits three particular areas whose actual perfor-mance on February 13 it does not believe~to be absolutely es-sential, but which are nevertheless highly useful in conducting as realistic and complete an exercise as possible, to the Suffolk County Legislature for its specific review: sounding of sirens, broadcast of EBS messages, and distribution of the emergency planning brochure.

LILCO believes that this demonstration, along with the parallel demonstration which it understands the federal govern-l . ment to be submitting, shows that the graded FEMA exercise l

planned for February 13 will not violate Local Law 2-86 or other, pre-existing law in any respect and that the Suffolk County Legislature therefore cannot issue a notice of disap-proval of it consistent with Local Law 2-86.

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SHOREHAM NUCLEAR POWER STATION: LOCAL OFFSITE RADIOLOGICAL EMERGENCY RESPONSE PLAN ATTACHMENT I LOCAL EYERCENCY RESPONSE ORGANIZATION (LERO) JOB DESCRIPTION

SUMMARY

(REV. 5)

I. 2. 3. ,4, . 5, 6. 7. 8 No. Description

, of Contact with Activities of Per- Service. Contact Challenged Response

, sons Support or with as to in Per Government General Legal Actual Job # LERO Job Description Shift Location

• Organizations ** Public Authority *** Emergency ****

J

l. Director of Local Re- 1 EOO X X D. I Contact with support, service and sponse governmental organizations is basic to Otractor of Local Response.

Contact with pubitC pJssible (but ,

not necessary) via press confer-t ences. Emercise of challenged I

functions intrinsic to DLR doct-stons on public nottftcation and protective action recommendations.

In February 13 esercise, pubite no-tification of emergency and ef pro-tac t ive ar t ton recommendat tor s wil l l

be simulated. See OPIP 2.1.1 p. 5; OPIP 3.1.1, Attachments 1, 8, 9 '

l 10 OPIP 3.3.1 & Attachment 1 OPIP 3.3.2, para. 5; OPIP 3.3.3 & At-4 tachment 13 OPIP 3.3.43 OPIP 3.6.1; OPIP 3.8.23 OPIP 4.1.1 & Attachment l 2.

i l

] 2. Manager of Local Response I EOC x X I, C In charge of implementing OLR decl+

slons. see comments applicable to l Director of Local Response. See also OPIP 2.1.1, p. 6: OPIP 3.3.2 All locations other than some t raf f ic control posts are on LILCO property or property that will be controlled by LILCO during an esercise,

!! Support organlaations have defined roles in the Shoreham Offsite Plan. Government organtrations are tan funded organlaations on any level. Service organizations are non governmental organlaattons not having a defined role in the 5hureham Offstte Plan, i

!!! Suffolk County and New York State claim that certain activities contemplated by the LILCO Plan cannot be legally implemented by LILCO. None of those challenged activities will be done during an esercise (e.gt, no communications to the publi of protective action recommendettons, and no direction of traffic).

will be simulated during the emercise.

Some of the activities [k;g2, decision-making)

• • • • This is not a complete listing of dutiesa it focuses on those relevant to contact with organizations or persons outsid i

LERO or activities challenged by Suffolk County and New York State on the grounds that LILCO lacks legal authority to do them in an emergency. References to Emergency Plan are not necessarily completes they are intended to illustrate representative d duties. Letter designations refer to the following activities: C. Communication D. Decision-making; I, Implementation.

Important Note: This Itsting of duties pertains to an actual emergency. In an esercise, potentially governmental aspects allt be simulated, and verlous other aspects may be.

-. .n.~ _. .

Pc=3 2 *

l. 2. 3. 4. .}. g. 1 8.

4 Description '

Contact With .

Acttwitles of.

No. of Service. Contact Challenged Response Persons Support or With as to in Per Government General Legal Actual Jots a LERO Job 3escription Shift Lucation Orgentrations Public Authority Emergency para. 5 OPIP 3.3.3 & Attachment is OPIP 3.3.4. para. 5.2.2.

3. Health ServlCes 1 EOC X C In charge of LERO operations rela-Coordinator tive to pubite health, local public services, radiological accident as-sessment, and radiological esposure controls anstats DLR in formu-Isting basis far protsctive action recommendettons: receamends use of potassium todido as thyroid blocking agent for emergency morhersa contacts outside agencies for togtstic support. Duties of Recovery /Re entry Committee include wartous recommendations about con-taminated foodstuffs, etc. See OPIP 2.1.1, p. 7 OPIP 3.1.1 & At- '

techment 3 OPIP 4.1.1 Attachment

• 4 i

4 Emergency Medical /Public 1 EOC 'x Oversees acttwitles of Hospital h

Sarwice Coordinator Coordinator. Pubitt Servicss r Coordinator. Ambulmoce Coordinator.

l May call ambulance companies. Pro-vedes information to law enforce =

ment.. fire and rescue organtaa-tions. See OPIP 2.1.1 p. 8. OPIP 3.6.5 OPIP 4.2.2. r

5. Hospital Coordinator 1 EOC x Communicates alth hospitals to as- [

certain available capacity and re-sources, alth respect 46 Contaml*

natwd/ injured persues. Sea'OPIP 2.1.t. p. 93 OPIP 3.6.5 ODIP.

4.2.2.

6. Public Services Liaison EOC D i

Communicates =$th local fire, res-cue end las enf orcemeint agencies.

f

. . . -.- . - . .- . . ~ _ - _ . . .- .

P8ea J

• 3, l' 2- $* E' I- la $6 Description Contact with Activltles of ho. of Service. Contar.t Challenge 9 Response Persons Support or with as to in Per Government General Legal Actual fou_s tERO Joh_ Description Shift 4ocation Grgasolictions Pubtit Authority EmergeQcy relaytus LERO response information et thele request. See OPIP 2.1.1,

p. 102 OP!8 3.6.6.' OPIP 4.2.2.

4 i

F, Aminelance Cuordinat or t EOC X X Olspatches ambutences for requested i (posst- evacuetton of persons free houses i Ole) and institutions, and for contael- '

nat ed/ tnjured personas pot'ent ial contact with individuals esiling ta requ&st ambulance eva&ustion. See 083P 2 I.1, p. 113 OPIP 3.B.53 OPIP 1 4.2.2.

8. Radiation teemith I FGC ( C Reppnnalble for determ'ining pa' ten-Coordinator tini for and entent of cffsite re-teases, and providtne besta toe protective art %dn reevemendatlens '

for OLit; Coa *usttates cith povern-mental egenclut providthe rs*

dialogital assistante6 coordinstes

• with DOE RAP teams. See 60!P 2st.t. p. 12 OPIP 3.5.24 OPIP

• 3,8.1 O&tP 3,8.24 OPIP '3 6.63 09tP 3 J9. ) ;. ODIP 3.9.2.

9. Nuclear Engineer 1 EOC X Evaluates plant condittens fur LEAOg won *LILCO person, See OctP 2.4.9. o. 12D.

10. Dotteetry Coordinator 1 LOC Oversees LF.RG radiation s2posure record keeping, see OPIP 2.1.1 p.

13. '

Il Rerufts keepers - EOC 1 EOC. E' wC t . Keep LERO sedtation empomusa Staging ,

records, see OP1P 2.1.1. p. 14 -

Areas.

t i

% - s- . . . .. . . . - ,, w-< . . ..

t Pece 4 1 2. 2 4 1 9 L.  :

t.

i j ne.cription

, Contact witn Acetwittes at ,

l Mos of Service, Contact Challengen Response.

! Persons Support cr With as to en l Per Government. General Legal Actuai Jnte e L f fidobJerc ript t on $htft a pjegoy Ornan)aatioen Ovea l l r- Autho,rlty Emergem -[

. Re(eption

} Center i

I.

I 1

12. Gecofd keepera - E6ergen- 2

• Neop 'LERO redt'ation esposure j cy Worker De(botamination recurds. see OPip 2.1,1, os 14 4

factInty

'1 i

i t r

j 13. Record auwpars - Stagtog 3 "

• Meep LERD ra4)attoo espcsure

! Areas records, sue OPIP 3.4.1 p. 14 ,

1 a

f .

I

! i Qecord keopers - kecep- *

• i 84 6 x Acep LERO radiat ten returd65 poten*

1 i ttor Center tisl cbntact esth general puutte at Peception Center. See OPIP 2.1.1, p .. 14.

l

. t t 15. Deconteetootton i El>C M 90tentlet contect with Akatican Red Coordinator Cross lARC) et Rwciptien Centert <

see OPIP 2.t.t, p. 14.

4

}

v

) 16. Derontamination seeder - I CeDF Otre&ts radfulogical menttertog and 1

! tmergency worker decontsetettien at fWOF, see OPIP 1 Decontaminattbn Facility 2.t.l. p. li, i

?

I I I i t i, Decont eminet ten L eader - 4 Reception A N Directs roulotugical monitoring and t Reception Center Center decont emination, in coordination t

eith ACC, et Reception Center 4 con-tect with ARC 4% Reception Centers ,

see Opl# '2.1.1, p. 17. l t

{ I 1

(

' , . . _ . - ~ . . _,. . - , , _ . . - . . - _ _ , , ,_,, _. ,- _ _ , . . . . , - . _ . . . _ . . . . . .. .

_ , . . _ - -_. _ . . . . . _ _ . . ._ . _ - . _ . _ . - . ~ ._ . _ . _ . . . . . _ ... - . . . - . . . _ - _ - . . . . _ -. . .._ , .

Pcee 5 .

4

- n. 2 .4 -.f

3. .S. 6. 7. 8.

] .

Description

• i Contact with Activities, of 2 60 of Serv %ce, Contact Challenged Response I i Persons Support or With as to in i Per Government General Lega) Actuel

] Josi e Ltko Jan pescrjh),t,tsy MLif t '.lbcatton Orgentzetlog pou l t g, Aythority Qn meency

49. Radistton monito etng arus 12 EwoF A Conduct f adiological monttertng of I. Decontestaation Personnel perserines and vehiclest potential

• Emergency Worker contact with embulence services j Decontaelnetton factitty see OPIP 2.t.1, p. 48.  !

6 1

1

?

i <

J 19. Radiatten monitoring and 120 Reception x M Conduct radiolbelcet monstering "af Decontamination Personnet Center oorsonnel and vehiclest contact

', - Receptten Center eith ARC, general.public et recep-tion centers see OPJP 2.l.I. p. 18. ,

s I

• 0, RAP tea.n Ltalmon* EDC M l; 1 Contact eith DOE-RAP team organtes'-

}

t$ont not officieses see oP:P 2.1.4, p. 20 OPIP 3.5.2t OPI9

{, 3.o.a.

! [

t . 21. hap Tkam Teptain* 1 Broukhaveh X CoGtect e%th DOE-MAP team orgentze-

! t Area Of- tiong DOE offtcthist see C914 fice 2.1.1, p. 21 '

4 j -

t

! 22. Doss Asassement Function

• 2 Groukhaven 'M Contatt with Dut-MAP team organtra*

1 Area Of- tloo6 bOE officiales see OPIP

} fice 2.ls). ps 22.

1 f '

23. Environmental Survwy Sreukhaven x l Funt.ttone 1

Area Of-Contact ettn DQt-MAP tese ef9G91>4- ~

tient 00E officialsa see OPIP

, ttce 2.1.1 p. 23.

i 5 l  !

I ,

e these persenoen have contact with sovernment seencies cottottson.sily, since toey are from occ.

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i 1 t 3 *D r gm-. -7==.-7 --g ' y .-w w-.* -w e , rT-. ) r . -

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, _ ._ - . _ . . . . _ . . . _ . . _ .m - .. ,

Pegs &

.i - l- E *- h- G. L- t<

Description Contact 54th Activities of' Nos of Service, lehtact. Chellenged- Despoose Persons support or with as to in Per Gove'nment' r General Legal Actuel

, son a a Et40 . Job oe,s g . tnt 4 3 shifa g nevon et m a g ns,. & bit t; Authorn y 4%e rgna

24. sorwey Team Wemberse 4 Brodhhswen A X(7) Contact with DOS-RAP teem orgentaa*

Area Df- t)on6 potentiel tothcidental con

• ftce fload tact with genefal puolic in field tecettons moultertnos 00E officialsa se's OPIP as di- 2.1s1. p. 24 rected ny the Env1-ronmental Sur-ey Punctions

25. twacuattso Coordinator i EDC 3 is C Dirett s commonttation olth pubi tt aewsictos (0.$. Ceest Guard. FAA, DOE- BNL. , $uff-olk County, Hee York State) re inttlekton of recommsnded i:, rot ect lwe act ion measur es s meet,or of 9ecovery actson Cummitteu for longer-term recovery and re-entrys ooms not make doctelons on ero-tecttwo actions, e.srely cootdinates communicetton of them see OPEP g

2.l.l. p. 16s OPIP 3.6.3., pare.

, 5,0.

I

26. Tlattoc lentrol I LOC X Contact only eithin LL80s see D9tP Coordinator (potentt41% 2.1.1, p. 27 OPIP 3.6.3, gere, 5.2.

i.

1 a

a

27. fraffte Contros point I r.OC .K Coordinates overala field activt-

) Coorotoator ties of traffic guideos 7thely com-i ruolcation alth and Ortefind or j SCFD, %ee OPIP 2.t.t. p. 28g OPIP j 3.6.3 pare; S.3 and Attachment 15

p. 62.

3

28. Leed Irettic Guldes 9 Staging M l.C Coordinates properation of trafftc Areas guides, road crees, route spotters, i

route alert detwers potential con-

! tect with and briefing of SCPD see 4

I l

t

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, - . _ ._ _m. -_ . _ . . - _ . . . ~ -. _ _ _ . . . . _ _ _ _ . _ _ . -- . -. . . . _ . < = -. . m._ . _ ...1 9 .

Pepe 7 *

.I. - $* $* $* 'h* E- 1* I*

, o.scription Contact With Activttles of No. af %ei v ic e , Contact Chattenged Response Persons Support of W 6 th as in in

, Per Gover6*ent Genere) tegel Actual Job s (tRO.Jon Descrtottan Shtft locatImi Oge n l a a t Sp3 Pub l _tj AgtguM y (me_rJency J

OPIP 2.1.1, p. 29g DPIP 3.6.3 l pers. 5.4 t

4

29. Traffic Gutkles %65 Stssteg X X  ! Facilitate traffic flow at Inter-4 Areas / In- sections in evacuation per prede='

• tarsections termined traffic control strategys t I

within the take direction from SCPO members if 10-mile tney arrive on scenes see OPIP EPZ 2.l.l. p. 30 OPIP 3.6.3. gara. 5.8 and Attachments I, 15.

t i

30. Road toutstica e EdC Coordloates fletd acttwlttes of a

Cao r d t tle t oi- Road Crews: communication on)y within LENO see OplP 2.1.1 P. 344 OPIP 3.6.3, gara. 5.5.

i 1

i e

34 Road Crews 36 Staging X M 1 Clear disebted vehicles or other treastfleid Obstacles from roads: dispense fuel

! Docettons to vehicles needing its establish at dt- one-way trafftc flow treatments i

tected by take direction from SCPD members if the Road they arrive on scene; see OPIP togtstics 2.1.4 p. 35. OPIP 3.6.3, para. 5.9 3 Coordinator and Attachments 2, 8, 12.

i i

i.

32. EwecGetton Reute i EOC Coordinates activities of Evacua-

< Caerdinetor tion Route Spotters communicates j only within LEROs see OPIP 2.1.1, f p. 36; OPIP 3.6.3. ,

/

1

! 33, twacuation Route Spotters 9 Staging xt?) Ortwo roadways in unmarked vehicles j Afuas/ or fly over in helicopters to ob-1 roadways serve traffic conditions, communl-4 within the cate them to LERO: possible coinct-i IO-stle dental contact alth general pubitc j

(P2 see OPIP 2.1.1 p. 37: OPIP 3.6.3,

, Attachments 3, 6.

(

1 4

i v , . ,, -+ , * -- s.u .v- - r ,4, . . y , ., , , . , . -, ,w ,- - , . - , - -

~

PDTO G J. 2 J. $. 5. 9 Z. 8. +

Description Contact With Activities of No. of service. Contact Chellenged Response Persons Support ce With as to in Per Covernment General tegel Actual Job e LtHO Job Qesgilotton }htft location Orgaplantions Public Aythority E me rgenc y

34. Staging Area Coordinetors 3 Staging set up and manage' staging areams

} Areas communicate only eithin LERO: OPIP

] 2.I.4 p. 38.

I

35. Special Facilltles Evacu- 2 LOC Oversees activities of Schools, at%on Cuordinator Health Facilities and Home Coordinators, and Route Alert driv-ersa communicates only within LERO:

4, makes no decisions involving pro-i tactive action recommendationes see OPIP 2.1.1 p. 39.

I a 36. l'ubitc $(boots I TOC 4 C Communicates with public schools.

Cootoinator assists in transportion coordination; makes no dectatons

) regarding public action recommenda-4 tions, only communicates them see ,

OPIP 2.1.1 p. 40 OPIP 3.6.5 para. 5.80.

i i

1

} 37, Pf6wete Schools 1 EOC X C Communicates alth private schools.

! Coord4nster essists in transportation coordinationa makes no decialons 1,

regarding pelvate action recommeh-4 dations, only communicates them:

see OPIP 2 ).1, p. 41: OPIP 3.6.S.

para. 5.10.

1

( lH. Health Factittles i EOC M C Communicates alth hospitals.

( Conrdinator nursing homes, other in patient health factittlest assists in transportation coord6 nations makes no decisions regarding public ac-l tion recommendations, only communt-cates them see OPIP 2.I.1, p. 42:

OPIP 3.6.5 pare. 5.9.

4 i

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.-, .. . - . - - - -. . . . -- . . . , - ~~ . ~. -. - --

Prge 6 +

, 1 3 3. 3 gg h. 2 g. .t .

• ~

• Description Contact With Activlties of No. of Servite. . Contact Challenged Response i Persons Support or With as to in 1

Per Government General Legal Actual Job e LLRO doQ, Description Sht?t Location Orgenlaations Pubttc Authority Emergency

39. home Coordinator 't ECC X C Notiftes prevleusly identlfted in-dividuals in private homes of pro-1 t ect ive act ion r ecommendat ions ,

i arranges transportation, see OPIP 2.1.1, p. 43s OPIP 3.6.3 gana.

S4.

2 i

t 2 40. Houte Alerting Drivers 60 Staging X C Natify genere) public in areas, if .

j Areast any, et stren Vallures nottfy deaf-1 field to- pers'ehas assist to bellcopter nr,tt-i cations as f it'ation uf boatert see CPIP -

j directed 2.1.4. p. 44 DPIP 3.3s4 y by the 4 Special ,

3 Factitles '

n Ewacuation i

Cooruineter i

41. Transpostation Support i EOC x(7) Coordinates bus awar.uattoot commu-g Coordinator nicates within LERO ond perleaps to bus companies; see OPEP 2.1.1, p.

j ,

l 464 OPIP 3.6,4. gare. 5.2.2 ) E 1

i '

7 i

42. Bus Coordinatcre 2 TOC X '

Communicate with LERO. Dus compa-1 nthag 61st ermine bu% evacuat ion re-j quirements and coordinate inf oe me- i i

tion alth bus dispatchest see OPIP l 2.1.1 OP!p 1.6.4, gorg, 5.3. t j

i 41. Bos Otspatchers 4 Staging Olepatch LEGO bus ortvers te Ous Areas cemeantes to pick 'up cuswa and co*

l ordtivsto bus Transfer Point op-aretionss ses OplP 2.1.1.. p. 46:

OPIP 3.6.4 perf. 5.5) OPIP 3.6.5

?

i pa r_e . 5.7. '

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i 1

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. - . - . - . . -~-_, . . _ - - - . . . - , . - - - -

Page 10

• 3- 3- $. $* N- $< l. Q.

• Description Contact With Activitis's of No. at Service, Contact Challenged Respunse Persons Support or with as to in Pef Government .GeGefst Lugal Actual Job a LE40 Jop Desc d otinn shift t oc-a t_ t on m O antestlong pubtte .Authert u teegem

44. Transfer Putnt 22 5taging N. Instrutt bus drivers et trenafer Cucrdinators Arces/ftsto putnts, dispatch thee te routess locations may assist in loading and unloading at But buses at transfee potntal boly co*

Transfsr incidental contact with gener si Points psbitct OPIP 7.1,1 p. 491 OPip 3se.4, p m . 5.6.

45. Dvs De t'ver s 330 $tesing x x 'Obtain buses f rom cooperat ing bus Areas / bus companfes, delve bus routest trans*

routes port persons frem special fattit-curbstde ties, see OPIP 2.1,1, p, 50 493p pithup er 3.6.4 para . $. 7 and Attachme%t 2.

speciel ~

tatttttles

$31ckup within the tO alle EP2 4b. Nuossus t Services 1 EOC A Coordinates overall activittee of Cuordinator that portten of LERO responsible for setting up Reception Centers .~

l

' carrying out lagtstic support, LfRO Family frecking end Ratetetton, and 6ecuritys participates in t orter-t ern R'ecovery Act ion ' comet t a kee. Commmticates with support or*

gaataattons, e.g., ARC and 14 t e red Melttapters See CPIP 2.1.4, p. b15

~0 PIP 3.f.1, Attachment S.

47. Amer scan Rest Cross t 'E GC k Amertcen Red Cross.of14ctet in Coue stina t ov charge at ARC act ivit nes, coce ut-nates with tERO, OPIP 2.1et, p. 52.

48. I m3us t r ial Melattoos t EOC LEMO internes activttles untys see Coursetnetor OPIP '2.1.1 p. 53.

_ ... -. - .. - - - - . - - . - , - . - . . . - . . . _ . - . _ . - . . . . _ . -_- -. . . - - - - . - , - . ~

p. ,, .- 't I. 2. 2 3, 5. g. 1 a. .

Description  ;

tontact with Activities of No .' of Service, Contact Chellenised Response Persons Support or with as to in per coveram.nt ceneral Legai actuai Jot

• e LERG Job Descrlptnon $htft Locetten Qrgag.zaj ons pot > l ig Authollh E_ meg ency

49. Logistics Support i EOC X Assists with EOC setups communt-Coordinator cates eith venders of goods and services (supplies, trevel, accom- .

modettons, e t c ..) for LERO and sup-port personeel activities: see OPIP j 2.1.1, p. %4. j 1

50. COC Aesministration Sup- 45 EOC port Internal activttles for LEROs sec-totarlal, clerical support and me-  ;

htitaatton, etc.g see OPIP 2.1.1, p, 55. >

St. Stoolng Atee Support 24 Staging Assist Staging Area Coordinator in  ;

Statt Areas at telephone and radio communications 4 Port activities are internal to LE40; Jefferson, see OPIP 2.4.1, p 57.

Rtwarbe3d, '

and -

Patchogue

$2. waterial Purchasing 3 EOC M Fiace orners with vendora for mete- I rials ano supplies needed by (EPO t start's aid in EOC s'c t ivat ion. See I OPip 4.1.1, p. 58 SL #4intenance t EOC EOC start up, equipment repelr, ma l'n t enanc e , $ae OPIP 7.1.f. p. {

t6.

$4 5ecartty Coorutnator i ECC M Coordinates phystcal security of '

a'I l LER9 factittles (FOC, Stantog

• Area. EW0r) and Reception Center ,

with Sontract Grgentzations (e.g.,

wetis Fargo) and requests assis-tance of laa enforcement organiza-tions (Suffoie end Na'assu County

)

4 4 'b I

i

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_ , , , ~ ~ . . ,, _._ .

- ~ . ~ . - , . . .. .- . .. . . _ . .. .

. . _ _ m . . _ _ _ _ .

Pcge 12 <-

1. 2. 3. 4 5. 6. 7. 8. .

Description Contact with Activities of No. of Service. Contact ChaIIenged Response Persons Support or with as to in Per Government General Legal Actual Job # LERO Job Description Shift Location Organizations Public Authority Emergency Police Departments) in accordance with appItcable law. See OPIP

2.8.1, p. SSI OPIP 4.7.1 item 10.

55. Security Personnst - EOC 3 EOC/ Staging Access control at LILCO facilities.

Areas See OPIP 2.1.1 p. 61.

56. Security Personnel -Re- 30 Reception X X Personnel access control and per-ception Center Center sonnel traffic and vehicular park-ing at Reception Center (Nassau Coltsoum) in cooperation with Nassau County Police Department.

4 57. Lead Communicator i EOC Responsible for necesssary work of LERO Communicators. Does not com-municate outside LERO himself. Sea '

OPIP 2.4.1 p. 65 OPIP 3.8.1 p.

67

58. Communication Repair 2 EOC Repatra LERO communications equip- r Technician ment on-stte. Saee OPIP 2.4.1 p.

65.

59. Communicators 10 EOC X Conduct communications for various ,

, segments of LERO. to internal and enternal organizations.

60. Coordinator of Public In- 1 EOC X X C Primarily responsible for public 3 formation -

(Via information. Acitivates EBS system i

press) and verifles activation of EBS and atrens, oversees EBS message and news release development; imple-ments rumor control procedures, s_ \ s

Psps 13 1 2 3. 4. 1 Q. 1 8. .

Description Contact With Activities of No. of Service. Contact Challenged Response Persons Support or With as to in Per Government General Legal Actual Job # LERO Job Description Shift Location Organtrations Public Authority Emergency See OPIP 2.l.1 p. 69: OPIP 3.1.1,

p. 58: OPIP 3.3.4

68. Public Information Staff 6 Emergency X X Develop EBS and public information News Cen- (Vla releases, make public announce-ter and press) ments, provide support at EWC see Local EOC OPIP 2.1.1, p.79.

67. Supervising Service Oper- 2 Electric X X C Conducts internal LERO nottftca-ator Service (contingent) (contin- (contingent) tions in immediate General Emergen-Section, gent) cy, may inttlate activation of Hicksville Prompt Notification System (strens) and EBS in absence of LERO Olrec-tors see OPIP 2.1.1, p. 79 OPIP 3.3.5.

63. LERO Family Tracking Cen- 1 Hicksville Director of family tracking op-ter Coordinator Operation erations for LERO workers. 'See Center OPIP 2.l.1, p. 72.

64. LERO Family Tracking Cen- 9 Hicksville Conduct family tracking operations ter Staff Operation for LERO workers. See OPIP 2.1.1 Center p. 73.

65. LERO Relocation Center 1 Hicksville Activates and oversees operation of Manager Operation Relecation Center in Hicksville for Center LERO and LILCO/Shoreham familles.

See OPIP 2.1.1, p. 74 66, t.ERO Relocation Center 8 Hicksville Operates Retorstion Center in Staff Operation Hicksville for LERO and

] Center LILCO/Shoreham families. See OPIP 2.1.1, p. 75.

ATTACHMENT 2 STATE OF NEW TORK

. EXECUTIVE CHAMBER MARIO M. CUOMO, GOVERNOR .

Press Office 212-587-2126 g18 a74.8418 FOR RELEASE:

IMMEDIATE, TUE3DAT DECEMBER 20, 1983 STATEMENT BT GOVERNOR MARIO M. CUOMO Tomorrow, the State will submit the attached brief to the Atonia Safety and Licensing Appeal Board to contest the conclusion that permission to load low power fuel any be 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

' esorgency planning issues. The State will oppose any grant 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 LILCO plan does not reasonably assure safe evacuation.

I A brief review of some of the underlying aircumstanets askes 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 esitted by a nuclear power plant.

The adoption of the Federal evacuation regulations 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 economit 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.

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No evacuation plan has yet been certified as adequate and implementable.

The

• County of Suffolk has said evacuation is is'possible and therefore it has submitted no plan. The State does not have the resources, by itself, LILCO tohas supply offered the wherewithal a plan, which 1

that would be required.

would be implemented by its employees, by which it would attend to evacuation by itself. The State opposes the notion that this LILCC plan is approvable. Its employees lack the capability and the legal power to implement it. Indeed, even in conjunction with the County's active participation, the Sta.te might not be able to give reasonable assurance of  !

evacuation.

Of course, if the plant were to be operated and a misadventure were to occur, both the State and the County 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 has ruled that its A3La can approve a request for low power loading without any certified evacuation plan being in existence. The brief te be submitted by New York tomorrow is part of the appeal from that decision.

If the State is successful in its opposition, the Shorehas plant will ect be allowed to open because it has not met the basic safety requirements set out in the Federal law and regulations. Because the hesith 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 i 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.

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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 LILCC lacked the experience and, skill required to build LILCO's construction probless' may a pisntbelike never this one.It is also possible -- some say likely --

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 for LILCC's deficiencies repeatedly and extensively for years to ease.

Notwithstanding the complexity surrounding this 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 sistake which was made It is years ago and for which we are now being asked to pay.

probable that.Shorehas would not be acceptable.as a Free licensable site under current federal siting practices.

to choose, ne one .vould build it again.

lack of training, preparation, and

2. L il co 's credibility with respect to the construction and management of the plant is saply established. Lilco must be held responsible for all costs associated with these inadequacies.

3 The decisions already made by the Governor are sy reasonable ones. These actions are specifically:

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 impact that results from this 10 year old debacle, whether it goes on line or not.

No one can reasonably dispute the primacy o,f the issue of safety here. The only substantial reason being off ered for opening the plant in disregard of strict application of tLe 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 cow to do everything w e can to minimizethe anyShoreham negative economic mistake.

consequences taat result from A cco rdingly, several months ago I assembied a specialMichael cabinet i

level working group headed by my Secretary,

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_4-1 De1Giudice, with instructions to develop a series of short tera. intermediate and long ters actions to mitigate the impact on rate payers and the Long Island community whether the plant opens or not. They have already consulted with some of the best sinds 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; SEO and NT3EIDA; 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 vell.

My preliminary view of the work being done satisfies s's that we vill 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 will not permit the uncertainty about relative economic impact to override what appears to' me to be the certain responsibility I have to protect the safety and health of the people. That must be our first concern and that has been the predicate of all my decisions to date.

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l ATTACHMENT 3  !

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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)

Dear Mr. Ashare:

Suffolk County Executive Cohalan was quoted in the June 15, 1985 New York Times to this effect:

In that event [i.e., Shoreham becomes radioactive], 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 couperation with LERO, to protect the public health and safety in the event a radiological accident occurs at Shoreham.

Very truly yours, W 1

W. aylo Reveley, III 126/586 e

ATTACHMENT 4 COUNTY OF SUFF.0LK i I OFFICE OF THE COUNTY EXECUTIVE PETrn F. COMALAN JOHN C. GAMAGMER surrouc covarv exacutivs c arcaruvv June 26,1985 Hunton & Williams 707 E. Main St.

P. O. Box 15 35 Richmond, VA 23212 Att: W. Taylor Reveley, III, E sq .

R E: Long Island Lighting Company

• ( Shoreham Nuclear Power Station, Unit I)

Dear M' r. Reveley:

This is in re'sponse 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, P ETER F.

CCHALAN l SUFFOLK COUNTY EX ECUTI VE

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ERRATA SHEET FOR LONG ISLAND LIGHTING COMPANY'S DESCRIPTION, PURSUANT TO LOCAL LAW 2-86, OF ACTIVITIES IN FEBRUARY 13, 1986 EMERGENCY PLANNING EXERCISE SPONSORED BY FEDERAL EMERGENCY MANAGEMENT AGENCY (undated; filed January 16, 1987)

Page/Line Correction 7/3 Change "it" to "them" 8/4 Delete "itself" 8/6 Insert *will" after " exercise" 8/8 Change "ad hoc" to "ad hoc" 11 / 7 Change "Page 9" to "Page 1" 11 / 8 Change "Page 5" to "Page 7" 11 / 25-26 Delete "such as ambulance.and ambulette drivers" l 13 / 12 Change " implementing procedures" i to " Implementing Procedures" l

! 13 / 29 Change "woul" to "would" 23 / 19 Insert " . " after " traffic" 27 / 24 Insert "by" after " construed" l 29 / 12 Change "e.g." to "e.q."

l l 30 / 16 Delete "made" j 32 / 31 Change "e2 g." to "e.a."

34 / 5 Insert "any" after "invo'.ve"

E ERRATA SHEET FOR ATTACHMENT 1 TO LONG ISLAND LIGHTING COMPANY'S DESCRIPTION . ,__s (undated; filed January 16, 1986)

Pace / column /line Correction 1 / Fn / 36 Change "publi" to "public" l / Fn / 39 Change "outsid" to "outside" 6 / 8 / 22 Change "p. 16" to "p. 26" 8 / 8 / 12 Change " Route Alert drivers" to

" Route Alerting Drivers" 9 / 8 / 11 Change "OPIP 3.6.3" to "OPIP 3.6.5."

9 / 8 / 21 Change " para. 5.2.2." to " para.

5.2."

9 / 8 / 26 Change "OPIP 2.1.1." to "OPIP 2.1.1., p. 47;"

10 / 8 / 27 Change "e.g." to "e.o."

11 / 8 / 27 Change "58" to "59" 11 / 8 / 30 Change "e.g." to "e.o."

12 / 8 / 9 Change "p. 58" to "p. 60" 12 / 8 / 9 Change "OPIP 4.7.1, item 10" to "OPIP 4.7.1., p. 19, para. 10" 12 / 8 / 17 Insert "OPIP 4.2.3., para. 2.5.,

5.8.2.-5.8.5."

12 / 8 / 24-25 Change "p. 65" to "p. 65a" 12 / 8 / 30 Change "Acitivates" to " Activates" 13 / 8 / 12 Change "p. 79" to "p. 70" 13 / 8 / 18 Change "p. 79" to "p. 71"

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0 .

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

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x LONG ISLAND LIGHTING COMPANY,  :

Plaintiff,  :

-against-  :

COMPLAINT THE COUNTY OF SUFFOLK, NEW YORK,  :

a New York municipal corporation, and  : Civil Action No.

PETER F. COMALAN, in his official  :

capacity-as Suffolk County Executive,  :

Defendants.  :

___________________._x

. Plaintiff Long Island Lighting Company (LILCO), by its-at-torneys Hunton & Williams, for its Complaint alleges as fol-lows:

(1) This is an action for declaratory and injunctive re-lief, or in the alternative for damages, plus attorneys' fees and such other relief as the Court may deem appropriate, be-cause of the defendants' unlawful attempt under color of state law (a) to prohibit and impede federal regulatory processes, (b) to prevent LILCO from participating in a test or exercise of its emergency plan for its Shoreham Nuclear Power Station (Shoreham) under the auspices of the United States Nuclear Reg-ulatory Commission (NRC) and the Federal Emergency Management Agency (FEMA) and (c) to prohibit LILCO from operating Shoreham.

y, Jurisdiction and Venue (2) This action arises under the Supremacy Clause and the First, Fifth and Fourteenth Amendments of the United States Constitution; the Atomic Energy Act, 42 U.S.C. 55 2011-2296; and Secticn 1 of the Civil Rights Act of 1871, 42 U.S.C.

S 1983. This Court has subject matter jurisdiction under 28 U.S.C. SS 1331 and 1343(a)(3), and principles of pendent juris-diction.

(3) Venue is appropriate in this district under 28 U.S.C.

S 1391(b) because the claim arose in the Eastern District of New York.

Parties (4) LILCO is a public service corporation incorporated under the laws of the State of New York and engaged in the pro-duction, distribution, and sale of electricity, and the distri-bution and sale of natural gas, on Long Island, New York.

LILCO owns the Shoreham Nuclear Power Station, which is an 809-megawatt nuclear powered electric generating facility located on Long Island's north shore in the County of Suffolk.

(5) Defendant County of Suffolk (Suffolk County or the County) is ~a municipal corporation incorporated under the laws of the State of New York and having governmental jurisdiction over the area known as the County of Suffolk, which comprises the eastern portion of Long Island.

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(6) Defendant Peter F. Cohalan (Cohalan) is and since January 1980 has been the Suffolk County Executive. Cohalan is j the' County's chief executive officer with policy-making and ad-

ministrative authority in the County.

i Backaround and General Allecations

(7) In 1968, LILCO applied to the United States Atomic Energy Commission (AEC), which is now the NRC, for a construc-tion permit to build Shoreham. The permit was issued on April 12, 1973.

i

. (8) Over 100 State and local permits were required for the Shoreham project to get underway. All were granted.

(9) Intended to meet Long Island's need for additional electric generating capacity and to reduce Long Island's depen-i dence on foreign oil, Shoreham has provided employment even during its construction to thousands and has generated substan-tial local property tax revenue. Construction is now complete, at a total cost approaching $4.5 billion.

1 (10) The NRC issued a low-power operating license for testing Shoreham at up to 5% power on July 3, 1985. Low-power testing at up to 5% power pursuant to the license has been suc-cessfully completed.

(11; Until approximately February 1982, the defendants did not oppose, and in many respects they encouraged, the construc-tion and operation of Shoreham.

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9 (12) Commencing in 1982, however, and continuing to the present, the defendants, acting under color of state law, en-tered into a plan to prevent Shoreham's operation.

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(13) Defendants' actions constitute regulation of the ra-l diological health and safety aspects of a nuclear power plant -- a field reserved exclusively to the federal govern-l ment. Defendants' actions have been purposely designed either to prohibit federally required emergency planning for Shoreham i

j or, failing that, to make that emergency planning less safe and

$ less effective, contrary to defendants' duties and avowed in-

tent to protect public health and safety.

i (14) Litigation over Shoreham has proceeded for years. It l

l .has been waged to date before four separate Atomic Safety and J

Licensing Boards, the NRC Appeal Board, the NRC itself, three l federal district judges, the United States Courts of Appeals l

for the Second and the District of Columbia Circuits, three New York State trial judges, the Appellate Division of the New York i

l Supreme Court and the New York Court of Appeals.

1 (15) Excluding litigation regarding emergency planning is-f sues, the defendants have not prevailed on any of the numerous i

and extensive safety issues they raised before the NRC in 185 days of health and safety hearings, including litigation of (a) the equipment used to build the plant, the construction pro-i cess, and the quality assurance program used in constructing and maintaining the plant; (b) plant security, which was l l r

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1 settled on the eve of hearings; (c) emergency diesel generators  ;

for back-up power at the plant; and (d) issues regarding low I

power operation. I (16) The defendar.ts have sought to prohibit or frustrate a federally required offsite radiological emergency response plan (RERP) for Shoreham. The defendants have refused to provide or assist with emergency planning and have taken actions to pre-vent LILCO from preparing or testing a RERP pursuant to federal and state law.

(17) The Governor of New York, the New York Disaster Pre-paredness Commission (DPC), and State officials acting at their

' direction, contrary to law, have also r.efused to provide or as-sist with emergency planning for Shoreham.

(18) Absent NRC approval of a RERP, a utility cannot ob-tain a license from the NRC to operate a nuclear plant at full power.

(19) In the absence of County or State participation, fed-eral law authorizes LILCO to proceed with emergency planning and to submit a " utility" emergency plan to the NRC for approv-al . - Both the NRC and this Court, in previous litigation be-tween these parties, have so ruled.

(20) LILCO has submitted its radiological emergency re-sponse plan (the LILCO Plan) to the NRC for approval.

(21) The NRC has exclusive jurisdiction, conferred by fed-eral law, to decide radiological health and safety issues 4

relating to emergency plans for nuclear power plants. Both the NRC and this Court, in previous litigation between these par-ties, have so ruled.

(22) There are three fundamental radiological emergency planning issues for Shoreham:

(a) Is emergency planning feasible for Shoreham, considering the population, road network, meteorology, and other factual conditions on Long Island?

(b) If so, are LILCO's emergency plan and organiza-tion adequate, assuming that they are allowed to function? and (c) Will the LILCO Plan be allowed by law to func-tion in all necessary respects?

-After lengthy and detailed proceedings before the NRC's Atomic Safety and Licensing Board (ASLB), LILCO prevailed on (a) and (b) and lost solely on (c), which has come to be referred to as the " legal authority" issue. All three issues are now on ap-peal within the NRC.

(23) The defendants assert that they will not participate in emergency planning for Shoreham and contend that it is ille-gal under New York law for LILCO to respond to an actual emer-gency.

(24) The New York State Supreme Court for Suffolk County has ruled that certain of the activities in the LILCO Plan, if actually performed in an emergency, would be " governmental" and therefore could not be performed by LILCO under New York law.

LILCO has appealed that decision to the Appellate Division.

4 (25) The NRC's Licensing and Appeal Boards have ruled, in light of the Suffolk County Supreme Court decision, that feder-al law does not preempt New York law prohibiting LILCO from re-sponding in an emergency. The NRC has accepted LILCO's request for review of that federal preemption issue.

(26) Thus, LILCO's " legal authority" to implement key por-tions of its Plan in an actual emergency is the only disposi-tive obstacle to both emergency planning and a federal op-erating license for Shoreham. New York law aspects of the issue are on appeal in the New York courts and federal law as-pects of the issue are on appeal before the NRC.

(27) Before the NRC, LILCO has pointed out that New York law requires County and' State officials to respond effectively in the event of a radiological emergency, and that both Cohalan and Governor Cuomo have stated that the County and State would respond to the best of their abilities. LILCO has contended that this governmental response, coupled with LILCO's pre-emergency planning and response organization, demonstrates com-pliance with NRC regulations for protecting public health and safety. This has come to be known as the " realism" issue. The NRC has accepted review of this issue as well, and has re-quested that FEMA go forward with a federal exercise (which is a drill or test) of the LILCO Plan that will, among other things, test LILCO's " realism" argument.

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(28) FEMA has scheduled the federal exercise of the LILCO Plan for February 13, 1986.

(29) In response, the County, on December 23, 1985, en-acted a Local Law that is designed to prohibit the federal ex-ercise, thereby (a) thwarting the federal regulatory and information-gathering processes of the NRC and FEMA and (b) prohibiting LILCO's lawful participation in those processes.

(30) In sum, the defendants, having lost decisively on the facts after extensive litigation, have interposed their last remaining roadblock: arbitrary legal fiat to prohibit emergency planning and thereby prohibit Shoreham's operation.

(31) The defendants' refusal to plan for a-radiological emergency, and their affirmative acts to prevent emergency planning and Shoreham's operation, are unlawful under federal and state law, as more fully set forth herein.

(32) Defendants' actions have injured, and continue on a daily basis to injure, LILCO, LILCO's customers and federal en-ergy policy. For example:

(a) LILCO recently was fined $1 million by the New York Power Pool for failing to have adequate generating capaci-ty on line. LILCO's lack of generating capacity caused by LILCO's inability to operate Shoreham threatens LILCO's ability to meet its customers' needs now and in the future.

(b) LILCO's reliance upon foreign oil for electric generation continues to impair federal energy policy. The a

electricity that Shoreham could provide is now generated by plants largely consuming foreign oil or, to a minor extent, natural gas.

(c) Every day that Shoreham does not operate causes 1

LILCO substantial economic injury. Capital carrying and other charges for the now completed Shoreham facility currently ex-ceed $45 million per month.

(33) The uncertainty regarding Shoreham's future caused by defendants' actions has injured LILCO by, among other things, substantially increasing its financing costs, seriously lim-iting LILCO's ability to obtain added financing, causing an ,

austerity program that has resulted in significant hardships on LILCO employees, and bringing LILCO to the brink of bankruptcy.

i (34) If the defendants succeed in preventing Shoreham's 4

operation, LILCO will suffer substantial, and potentially ruin-l cus, financial damage.

Summary of Complaint (35) NRC regulations require an emergency plan for Shoreham as a prerequisite for a federal license to operate Shoreham at full power. Defendants are obligated by law to en-gage in effective emergency planning for Shoreham, and con-tracted with LILCO to do so. They have refused and continue to refuse to fulfill these obligations. LILCO has therefore pre-pared an emergency plan for Shoreham in accordance with federal regulations, in order to obtain an operating license for

_g_

l Shoreham. Defendants have undertaken a campaign to prohibit ,

LILCO's emergency planning; to interdict and frustrate the fad-eral regulatory process; to delay the operation of Shoreham; to prohibit the operation of Shoreham; to deprive LILCO of the sole intended purpose and value of Shoreham (the prodcction of electric power for sale to the public); and to deprive LILCO of its property, all in violation of federal and New York law. I (36) The defendants' actions have included:

(a) A Local Law enacted by the County which is de-i signed to interdict a federal exercise of the emergency plan for Shoreham at the direction of the NRC and under the auspices i of FEMA, and thus to prohibit a federal operating license for Shoreham (hereinafter the Local Law) (Exhibit A to this Cor-plaint).

(b) County Resolutions that (i) prohibit County emergency planning for Shoreham; (ii) state that Shoreham shall not operate; and (iii) have been interpreted by County offi-cials and their agents to prohibit the implementation, in an actual radiological emergency, of an emergency plan that the NRC's Licensing Board has found adequate to protect public health and safety if the plan were implemented by persons having legal authority to do so.

(c) Refusals to provide any emergency planning for Shoreham, despite New York law and a contract requiring them to do so.

4 (d) Deliberate actions, both in fact and by force of law, to prohibit, hinder, and destroy LILCO's attempts to for-mulate and demonstrate the effectiveness of an emergency plan

~

for Shoreham pursuant to federal and state law.

(e) Other actions to deprive LILCO of its $4.5 bil-lion investment in Shoreham without just compensation and with-out due process.

(37) Defendants (a) have frustrated and taken steps to i

(

prohibit LILCO from proceeding with a utility emergency plan as j authorized by Congress and NRC regulations; (b) have prohibited and intimidated by criminal sanctions the federal regulatory  ;

processes of the NRC and 7EMA; (c) have violated federal and

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state constitutional guarantees; and (d) have violated the law of New York by attempting to regulate disaster preparedness planning, which is beyond the authority of a local government, and by deliberately thwarting LILCO's emergency planning.

Counts I, II, III, IV, VI, VII, VIII, IX and X of this Com-plaint seek a declaration that this conduct is unlawful, injunctive relief restraining such conduct, and other relief.

(38) Defendants are required by New York law to provide effective emergency planning for a radiological accident at Shoreham, but they have categorically refused to do so. Counts XI, XII and XIII of this Complaint seek a declaration that this refusal is unlawful, an injunction requiring the County to ful-fill its duties and obligations, and damages.

(39) If defendants' actions in thwarting LILCO's emergency

, planning for Shoreham and in refusing to provide emergency planning for Shoreham are sustained, defendants will thereby deprive LILCO of its $4.5 billion investment in Shoreham, by preventing the commercial operation of Shoreham, without just compensation. If defendants' actions are found to be within their powers, Counts V and XIV seek a declaration and a judg-ment against defendants requiring them to compensate LILCO for this taking.

(40) LILCO therefore asks this court to (a) enjoin the de-

. fendants from frustrating LILCO's emergen'cy planning for Shoreham, (b) require the defendants to fulfill their contrac-tual and statutory obligations to provide emergency planning >

and response capability for Shoreham or, in the alternative, (c) require the defendants to compensate LILCO for Shoreham.

Specific A11ecations A. Governmental Succort for Shoreham and Emeraency Plannina (41) The federal government and various federal agencies historically have supported, and today continue to support, the construction and operation of Shoreham. For example, the Sec-retary of Energy has stated that Shoreham is an important ele-ment in this nation's energy policy to reduce dependence on foreign oil.

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(42) Prior to February 1983, Suffolk County officially supported emergency planning for Shoreham. For example:

(a) H. Lee Dennison, then the Suffolk County Execu-tive, appeared before the Atomic Energy Commission's Licensing Board in 1970 and urged the AEC to grant a construction permit ,

for Shoreham immediately.

(b) The County contracted with LILCO to provide emergency planning for Shoreham in accordance with federal reg- '

ulations, and repeatedly assured LILCG that the County would .

provide effective emergency planning.

(c) For many years, the County has appraised Shoreham for real estate tax purposes at its enhanced value as a nuclear power plant. As a result, LILCO has paid in excess of $300 million in local property taxes for the tax years 1977 through 1984.

l (43) New York State, prior to Governor Mario Cucmo's icaa-guration, consistently supported Shoreham and emergency plan-ning for shorehaa. For examples *

(a) Governors who preceded Governor Cuomo openly and officially supported Shoreham.

(b) The New York State Department of Environmental ,

Conservation approved the Shoreham project on June 22, 1972.  !

(c) The New York Public Service Commission (PSC),

beginning in 1975, reviewed and approved the need for and the -

continued construction of Shoreham, and in 1981 adopted its

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Administrative Law Judge's recommendation that "Shoreham be I l

completed 'as soon as possible' to reduce LILCO's total depen-dancy on oil-fired electric generation and its attendant vul-nerability to interruption of foreign oil supplies."  !

(d) Shoreham has been included in various New York State energy master plans.

(a) Cn April 29, 1980, the State of New York and five utilities, incicding LILCO, entered into an agreement re-specting emergency planning at the utilities' nuclear power o plants. Under the contract, the DPC committed to plan for ra- .

diological emergencies in cooperation with each utility.

(f) In litigation brought by the County in 1981, the New York Attorney General took the position, on behalf of the State and DPC, that the DPC was obligated by lav to review an emergency plan for Shoreham submitted by LILCo. In addition,  ;

the staff of the DPC indicated that emergency planning for Shoreham is feasihie and that the plan submitted by LILCO could be made acceptable, (44) The federal construction permit for Shoreham was granted by the AEC on April 12, 1973, following protracted hearings before the AEC that included challenges to the choice of the site and the f easibility of emergency planning. The AEC Staff found that Shoreham satisfied regulatory requirements including emergency planning. The AEC Liceneing Board found 4 that LILCO had outlined its plan for coping with emergencies j

j

and had conferred with New York State and local authorities with respect to emergencies.

(45) In February 1973, the Suffolk County Department of Emergency Preparedness was directed by Executive Order to de-

, velop a " Response Plan -- Specific Operating Procedures For Major Radiation Incidents." In early 1975, representatives of the State, the County, and LILCO met to define their respective emergency planning responsibilities. This was the first of many such sessions to support the development of the Suffolk County emergency response plan.

(46) The County's " General Radiation Emergency Plan" was approved by County Executive John Klein on August 30, 1978.

That plan was reviewed and later accepted by the New York State Office of Disaster Preparedness.

(47) In late 1978, the United States Environmental Pro-taction Agency and the NRC issued a new guidance document rec-ommending that emergency planning be expanded. As a result, LILCO and State and County officials began updating Shoreham's emergency plan.

(48) In 1979, the NRC promulgated new emergency planning regulations, which remain in effect. As a result, LILCO and County Executive Klein signed a " Memorandum of Understanding" on December 28, 1979 outlining the revised responsibilities of LILCO and the County in emergency planning. Defendant Cohalan ,

(then County Executive-elect) approved the terms of the

agreement. >

2 .

t

3 (49) Throughout 1980, consistent with the Memorandum of Understar. ding, the County and LILCO proceeded with emergency ,

planning activities. *

(50) LILCO vice President Dr. Matthew C. Cordaro, Suffolk  :

County Planning Department Director Dr. Lee E. Koppelman, and '

Deputy County Executive John C. Gallagher signed a contract on March 15, 1981 calling for the County to produce within six .

months a revised radiological emergency response plan at a cost of $245,000, to be paid by LILCO. In September 1981 an amended !

contract with substantially the same terms was approved by the ,

County Legislature. LILCO paid the Suffolk County Planning De- ,

partment $150,000 as the first installment on the contract. ,

The County agreed'in the contract to complete the plan by ,

March 18, 1982, at which time the balance of the contract

{

amount ($95,000) would become payable.

(51) The County represented in the September 1981 contract }

that it was familiar with the applicabin federal regulations and that the County could and would develop on emergency plan '

that complied with them.

(S2) LILCO cooperated with and assisted the County in i

emergency planning. Most of the sections of the County plan were completed by February 1982, t

t l

I l

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l J

- . _ . , . ~ _ .- ~ . ...-- ~ - . . ,-

(

l S. Shift in County Position _on Emerq_ency Planninn  ;

(53) In mid-February 1982, the County announced it had re-

~

tained a Washington, D.C., law firm to represent the County in the KRC hearings on LILCO's application for an operating li- ,

cense for Shoreham, and that emergency planning would be the

" centerpiece' of what subsequent events have shown to be ths ,

defendants' new position of inflexible opposition to emergency ,

4 planning and shoreham. l

($4) soon thereafter, the county sent a letter dated f February 19, 1982 to LILC0 claiming "an apparent conflict of interest" -in its acceptance of payment fren LILCO as required by the September 1981 contract, but still promising that; ,

The County will continue, as required by lav,

j. to develop a plan consistent with the require- .

ments of law and its obligation to protect the health, safety and welfare of the people.  :

t (55) In a letter dated March 17, 1982, LILCO reaffirmed its obligations under the centract and its intention to comply with i

its terms. LILCO expressly informed the County that LILCO had relied and was relying on the County to perform its obligations under the contract and that severe damages would flow from any breach by the County.

~

(56) On March 23, 1982, the County Legislature adopted Reso-lution 262-1982 authorizing the County Plannirg Department to pre-pare yet another emergency plan, and declaring that no pian vould become operable or be deemed adequate until "npproved" by the Leg-1 islature. Defendant Cohalan approved this resolution on March 25, 1982.

4

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{ (57) Soon after the adoption of Resolution 262-1982, the two i

principal planners within the County government, who had prepared ,

j most of the plan pursuant to the contract, were discharged from their emergency planning duties.

(58) One of these County planners stated in a deposition in j August 1982 that, but for the County's Resolution and the County's a

l directive that she stop work, the County plan " definitely" would j have been completed by May 1962, 1

i (59) On May 17, 1982, the County represented to LILCO that: ,

i The County is preparing a radiological re-sponse plan which will satisfy all 1ccal,  ;

State and federal criteria and regulations, as contemplated by the 3eptember 18, 1981 agree- t ment between the County and LILCo. Pursuant to~ Legislative Resolution 262 and Executive ,

1 Order, such plan will be transmitted to the. '

County Legislature by October 1, 1982, (60) On May 18, 1982, the County Legislature adopted Resolu- f tion 456-1982 That resolution stated that the County intended, l "through good faith and sound planning efforts, to assure that the  !

best possible emergency plan and preparedness are developed,"  ;

i  !

l

C. County and State Oooosition to Shoreh_am and_Emercency Planning I

i (61) Notwithstanding the County's repeated representations to LILCO that it would provide emergency planning for Shoreham, in early 1962 the defendanta embarked upon a plan calculated to delay .

1 i and prevent the operation of Shoreham under color of state law, l

while inducing LILCO to believe -- as long as possible -- that the  !

County was seriously working toward the creation of a RERp, In l 4

)

I

fact, the defendants' objective was to prevent the creation and adoption of any RERP by any entity.

l (62) In June 1982 the County sought to circumvent the federal administrative processes before the NRC by filing a lawsuit in State court seeking, inter alia, (a) to compel a " physical inspec-i tion" of shoreham by the County, in addition to the numerous in-spections that already had occurred and would occur thereafter l pursuant to federal regulation, all of which confirmed the safety and adequacy of the plant's design and construction, and (b) an injunction pending completion of the inspection. Following remov- i 1

al, this Court dismissed the action. The dismissal was upheld on  ;

appeal by the United States Court of Appeals for the Second Cir-

-cuit, which held that federal law preempts any County health or safety regulation of Shoreham and that "the only avenue open for appellant (Suffolk County) is to continue its proceedings in the administrative forum -- the NRC for safety-related con , /

Cerns. . . .

(63) The County continued to obstruct federal regulatory pro-cesses in licensing proceedings before the NRC in 1982 regarding

" Phase I" emergency planning issues. Throughout much of 1982, the County pressed numerous contentions, initiated extensive discovery and made it necessary for LILCO to fi'le hundreds of pages of tes-timony responding to the contentions. Virtually on the eve of hearings on the County's contentions, the County defaulted and de-clined to litigate them before the NFC'.

/

(64) After abandoning the almost-completed LILCO-Suffolk County emergency plan, the County delayed consideration of emer-  :

gency planning for Shoreham for almost a year, extending repeat-edly the promised completion date of its alleged planning efforts.

(65) During the first week of December 1982, the County is-l sued a " Draft Suffolk County Radiological Emergency Response Plan" (the draft County plan). The County Legislature announced that it would hold public. hearings on the draft County plan.

(66) The draft County plan did not, and was not intended to, 4 comply with a number of federal emergency planning requirements.

The plan was based on key criteria that were contrary to NRC regu-lations; the plan did not include essen.tial items; and the plan contained little necessary site-specific information for Shoreham.

(67) In January 1983, the County Legislature held pu'blic hearings on the draft County plan. These hearings were not in-tended to evaluate seriously the feasibility of emergency planning for Shoreham. Instead, the hearings were intended solely to "le-gitimize" a predetermined recult -- the rejection of any emergency plan -- and to provide a basis to thwart LILCO's legitimate and lawful business ends.

l (68) A letter dated January 19, 1983 from a Suffolk County j legislator to the President of the People's Action Coalition of Suffolk County stated that "the reasoning behind the [ County Leg-islature's] hearings for a so-called plan, at the present time, is to use the facts presented as a basis for a future lawsuit" to prevent Shoreham from operating.

1

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e (69) On February 16, 1983, defendant Cohalan, contrary to the County's prior representations, issued a report and a separate statement declaring that inherent local conditions on Long Island made it " impossible" to devise an emergency plan and that there could "never" be adequate emergency preparedness to protect public health and safety.

(70) On February 17, 1983, the County Legislature adooted Resolution 111-1983 (Exhibit B to this Complaint). The Resolution stated that emergency planning for a cediological accident at Shoreham was not feasible, and included findings that local condi-tions, such as the road network surrounding the plant, public fear and overreaction, and other alleged facts, would render an emer-gency response " impossible" under any circumstances.

(71) The NRC has er.clusive jurisdiction to rule definitively on the feasibility of radiological emergency planning to protect public health and safety.

(72) Contrary to Cohalan's Report and the alleged factual findings in Resolution 111-1983, the Atomic Safety and Licensing Board (ASLB) of the NRC, on April 17, 1985, rejected all of the County's alleged factual findings on the merits after months of detailed hearings.

(73) In its Concluding Initial Decision on August 28, 1985, the ASLB stated that "the record fails to reveal any basis to con-clude that it would be impossible to fashion and implement an ef-fective offsite emergency plan for the Shoreham plant." The ASLB, l

l however, declined to approve the LILCO Plan because the County and l State had refused to give the emergency plan, which otherwise would have been found adequate, their legal blessing.

(74) In breach of the County's contractual obligations and contrary to the County's prior representations, Resolution 111-1983 terminated all County emergency planning for shorehea, mandated that no plan for Shoreham would be adopted or imple-mented, and directed the County Executive "to assure that actions taken by any other governmental agency, be it State or Federal, are consistent with the decision mandated by this Resolution."

(75) On April 10, 1984, the County adopted Resolution 1398-84, which stated that the effect of the County.'s Resolut. ions concerning emergency planning for Shoreham is that "the Shoreham facility shall not operate and must be abandoned."

D. Initial Challence to the County's Resolutions (76) The Resolutions were challenged by LILCO, Citizens for an Orderly Energy Policy, Inc. and the Shoreham-Wading River School District in this Court. LILCO and the other plaintiffs ar-gued, inter alia, that the Resolutions were preempted by federal law.

(77) The County responded by representing to this Court that its Resolutions did not inhibit LILCO's ability to go forward with a utility emergency plan sponsored by LILCO under NRC regulations; that LILCO had the right under federal law to present a utility plan to the NRC for approval; and that the findings in the

Resolutions concerning the feasibility of emergency planning for Shoreham were intended solely as a basis for attempting to per-suade the NRC that those findings were correct. The County con-ceded that the NRC has the exclusive authority to rule ultimately on the feasibility of the LILCO Plan under NRC requirements.

(78) Based on the County's representations, this Court, on March 18, 1985, held that the Resolutions were not preempted by federal law expressiv because the Resolutions had no effect on LILCO's abililty to go forward with a utility emergency plan under NRC regulations. This Court held that the findings in the Coun-ty's Resolutions would become " academic" once the NRC issued a de-cision on LILCO's emergency plan. Citizens for Orderly Eneroy Policy. Inc. v. Suffolk County, 604 F. Supp. 1084, 1094-95 (E.D.N.Y. 1984). This decision is pending on appeal before the United States Court of Appeals for the Second Circuit.

(79) The ASLB, on April 17, 1985, approved the LILCO Plan on its factual merits, with a few correctable exceptions, and ruled that the LILCO Plan, if it were implemented by persons legally au-thorized to do so, could meet NRC regulatory requirements for the protection of public health and safety. In its decision, the ASLB rejected the findings in the County's Resolutions concerning the feasibility of an emergency plan for Shoreham.

(80) After this Court's ruling and the ASLB's decision, the County and a majority of County Legislators represented to the courts of the State of New York and to the NRC that the

o s

• Resolutions have a different, and inconsistent, meaning and effect than the County previously represented to this Court. The County, as well as attorneys representing a majority of the County Legis-lators, have stated to these tribunals that:

(a) The Resolutions " prohibit (the County Execu-tive] and all other County employees from implementing the LILCO Plan," and prohibit any County Executive response in any actual emergency in accordance with the LILCO Plan, despite the ASLB's ruling that a response in accordance with the LILCO Plan could meet NRC requirements _for the protection of public health and safety and despite a New York statute requiring the County Execu-tive to respond effectively in the event of any. actual.ra-diological emergency.

(b) The Resolutions make it the law of the County that "no Suffolk County personnel could ever participate in the implemention . . . of the LILCO plan."

(c) The Resolutions prohibit any test or exercise of the LILCO Plan by the County Executive or any other County em-l ployees.

l (81)

As interpreted in these representations by the County to l the New York courts and the NRC, the Resolutions are designed to prohibit any test, exercise or implementation of the LILCO Plan.

(82) The Resolutions, therefore, according to the County's l recent representations, (a) do prohibit and obstruct the LILCO l

Plan, contrary to the County's previous representations to this i

l l

Court, and (b) do in fact supplant the NRC's exclusive authority to decide whether the LILCO Plan is feasible and will adequately protect public health and safety.

E. NRC Proceedinas in Response to County  ;

Gooosition to Shoreham j (83) Based on Resolution 111-1983, on February 23, 1983, the County unsuccessfully moved the ASLB to terminate the Shoreham op-erating license proceeding on the ground that, absent County par-t ticipation in emergency planning, there could be no plan and no operating license.

(84) The ASLB denied the County's motion. The NRC uphelC the ASLB's ruling and held that the proceeding on LILCO's application.

for an operating license should continue under NRC regulations.

(85) In its opinion, the ASLB held that the County's actions were preempted by federal law and constituted an impermissible at-l tempt by a local government to regulate matters of nuclear safety.

(86) The County mounted a corjanion effort in the NRC licens-

, ing hearings for Shoreham on countless safety issues unrelated to l emergency planning. Beginning in 1982, the County expanded and delayed the proceedings, making them the longest and most involved licensing process in the history of commercial nuclear power in l this country.

(87) In September 1983, the ASLB. issued its partial initial decision on most of the safety issues. The ASLB found in favor of

LILCO on virtually all litigated issues.

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a (88) The ASLB decision confirms the improper motives and tac-tics that the County has employed to prevent Shoreham's operation.

The ASLB found that, as to the quality assurance issues raised by the County:

[T]he difficulty of (the Board's] task, trying to be objective in consideration of each of the parties' submissions, is further com-pounded by the County's misrepresentation of the complete record -- by omission, selective citations and distortion of recorded testimo-ny.

Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1)

LBP-83-57, 18 NRC 445, 579 (1983).

F. New York DPC Proceedings (89): Follovi'ng the Countys breach of its' September 1981 emergency planning contract with LILCO, and during the NRC hear-ings on safety issues, LILCO continued to develop the offsite emergency plan for Shoreham that had been almost completed by the County.

(90) On April 29, 1982, LILCO met with the New York State Commissioner of Health and the Chairman of the DPC and agreed that the plan, which was nearly complete before being abandoned by the County, would be submitted to the DPC for its review. LILCO sub-mitted this plan to the DPC on May 10, 1982.

(91) In June 1982, the DPC Chairman described the plan that LILCO had submitted as the "best we have received from any county in the state, and there is no fundamental reason why the plan can-not be corrected fairly easily."

(92) The DPC reviewed the plan submitted by LILCO as amended to respond to commentu. The DPC Staff found no difficulties with the plan that would have precluded it from meeting all state and federal reqairements.

(93) A hearing on the LILCO-submitted emergency plan was scheduled for December 8, 1982, before the DPC. The County sued the DPC in the New York Supreme Court in Albany County seeking a temporary restraining order to prevent the DPC hearing. LILCO in-tervened in the suit.

(94) Robert Abrams, Attorney General of the State of New York, along with LILCO, moved to dismiss the County's suit.

(95) ,

In the State's motion papers filed in the Supreme Court,

. the Attorney General stated that, under New York law, LILCO was entitled to submit the emergency plan to the DPC and that the DPC was obligated to review that plan. The State expressly rejected the County's position that under state law only the County, and not LILCO, had the power to develop and submit an emergency plan for Shoreham.

(96) On December 15, 1982, the County, the DPC, and LILCO stipulated that the DPC would refrain from further action on the

! LILCO-submitted plan until February 23, 1983. The stipulation l provided that if the County did not file its own emergency plan L

with the DPC for formal consideration on or before February 22,

1983, the DPC would (a) meet promptly to take action on the LILCO-i l

submitted plan, or any other plan the DPC deemed properly before l

it, and (b) if a plan were approved, forward it to FEMA to begin the federal review of the plan. ,

(97) Although the County's suit against the DPC was dismissed following the County legislature's passage of Resolution 111-1983, the DPC has not fulfilled its statutory and contractual obliga-tions, and its commitment in the stipulation, to complete its re-view and approval of the LILCO-submitted plan.

(98) In 1983, despite the State's previous representations, Governor Cuomo issued a news release that he had directed State officials not to act on the emergency plan submitted to the DPC by LILCO until the cooperation and participation of the County was assured.

G. Lack of State Emeroency Plannino (99) The New York State Emergency Plan for radiological emergencies contains site-specific plans for Monroe, Orange, Oswego, Putnam, Rockland, Wayne, and Westchester Counties. The New York State Plan contains no site-specific plan for Suffolk County.

(100) The New York State Plan contains site-specific plans for every nuclear power plant in New York Scate except Shoreham.

H. NRC Emeroency Plannino Proceedinos (101) In light of the County's and the State's unlawful refus-als to provide emergency planning, on May 26, 1983, LILCO filed with the NRC, pursuant to federal regulations, its emergency plan

(the LILCO Plan). The LILCO Plan provides for LILCO personnel, federal agencies, and other organizations such as the American Red Cross to perform various emergency functions, organized under the umbrella of the Local Emergency Response Organization (LERO).

(102) In July 1983, the County filed with the ASLB numerous detailed' contentions challenging the LILCO Plan. The County's contentions had their genesis in the alleged findings in Resolu-tion 111-1983.

(103) The NRC proceedings on the LILCO Plan were exter.sive and the hearings were lengthy and detailed.

I. State Court Rulino on LILCO's Emercency Plan (104) On March 8, 1984,- in the middle of the NRC hea' rings on the LILCO Plan, the Governor, the County, and various Towns in eastern Long Island filed suit against LILCO in New York Supreme Court seeking declaratory judgments that LILCO's implementation of the LILCO Plan in an actual emergency would be unlawful under New York law. The State and the County, having unlawfully refused to provide emergency planning for Shoreham. alleged that LILCO could not implement the plan because LILCO was not a government. On

( February 21, 1985, the court issued an opinion holding that vari-l ous functions provided in the LILCO Plan could not, under state law, be performed by LILCO in an actual emergency. Cuomo v.

! LILCO, Consol. Index No.84-461 (N.Y. Sup. Ct., Feb. 20, 1985).

LILCO has appealed that ruling to the Appellate Division.

l

J. NRC Rulinos on LILCO's Emeroency Plan (105) Before the ASLB, LILCO argued that any state law re-strictions on LILCO's ability to perform various required func-tions in response to an actual radiological emergency were pre-empted by federal law.

(106) In April 1985, the ASLB issued a partial initial deci-sion and in August 1985, the ASLB issued its concluding partial initial decision on emergency planning.

(107) In its decisions, the ASLB rejected virtually all of the myriad factual contentions and arguments put forth by the County and the State, and thereby rejected the " findings" in County Reso-

' lution '111.-1983. In sum, the ASLB found that (a)' emergency plan ;

ning for Shoreham, in accordance with federal requirements for protection of public health and safety, in fact is feasib'le and there are no insurmountable obstacles to such planning; (b) the LILCO Plan and LILCO's emergency response organization are ade-quate; but (c) LILCO lacks the legal authority, acting without the legal approval of the County or State, to implement various func-tions in its plan in responding to an actual radiological emergen-cy. Thus the only dispositive defect in LILCO's Plan, according to the ASLB, was not a factual defect but instead was the lack of legal blessing by the County or the State.

(108) LILCO appealed the ASLB's ruling on the federal legal issue decided adversely to LILCO. The NRC Appeal Board affirmed the ASLB. LILCO has appealed that ruling to the NRC itself, which

has accepted review over the objections of the County and the State.

K. The County's Reversals of Position on Emergency Planning in 1985 (109) The County's position of steadfast opposition to emer-gency planning and Shoreham buckled in 1985, after the ASLB's de-cision that emergency planning in fact is feasible for Shoreham.

On May 30, 1985, the County Executive Cohalan issued Executive Order No. 1-1985, which directed a County review, evaluation, test and exercise of the LILCO Plan.

(110) The test and exercise directed by the Executive Order was to be evaluated by FEMA in accordance with NRC regulations.

~

(111)' The County Executive stated publicly that if the evalua-tion, test and exercise of the LILCO Plan called for by the Execu-tive Order was successful, he would withdraw his office's opposi-tion to emergency planning for Shoreham.

(112) In reliance upon the Executive Order, LILCO released to the County approximately $131 million in taxes. LILCO had law-fully withheld these taxes because the County had assessed Shoreham as a nuclear power plant while the County was simulta-neously trying to prohibit the plant from operating as such.

(113) County Legislators and individual Towns filed suit challenging the Executive Order in the New York Supreme Court for Suffolk County on June 5, 1985, alleging that the County's Resolu-tions prohibited the Executive Order.

(114) On June 10, 1985, the Suffolk County Supreme Court held Executive Order 1-1985 null and void. The Appellate Division, on June 19, 1985, affirmed. The Court of Appeals, on July 9, 1985, affirmed on the narrow ground that (a) the County Executive has a statutory duty to respond in an actual radiological emergency and to participate in the preparation of plans, and (b) the County Ex-ecutive may gather information and advise the legislature in ful-filling his planning duties, but (c) the County Executive may not unilaterally take steps that amount to the adoption of an emergen-cy plan, in advance of an emergency, without obtaining the approv-al of the legislature. Three of the seven judges of the Court of Appeals dissented from this ruling and . voted to uph.old the Execu-tive Order. Prospect v.' Cohalan, 65 N.Y.2d 867 (1985).

(115) Numerous allegations and representations by counsel for the County Legislators during the litigation revealed that the County's Resolutions were intended to block the evaluation, test and exercise of the LILCO Plan; to regulate radiological health and safety issues reserved exclusively to the NRC; and to supplant the lawful jurisdiction of the NRC to determine the adequacy of the LILCO Plan during an exercise.

(116) On July 15, 1985, Cohalan issued Executive Order 2-1985 instructing County employees to gather information and study the LILCO Plan in pursuit of his statutory responsibilities. This Ex-ecutive Order remains in force.

(117) The result of the review by the County pursuant to Exec-utive Order 2-1985, which was reported to have been favorable to the LILCO Plan, has been withheld by the County Executive.

(118) On November 7, 1985, in another about-face, Cohalan wrote to the Chairman of the NRC stating that the County opposes an exercise of the LILCO Plan, and on November 12, 1985, the Coun-ty Attorney wrote to the Associate Director of FEMA stating that "Suffolk County is opposed to FEMA taking any ?ction to hold an exercise of, or otherwise aid an exercise of the Long Island Lighting Company's emergency plan for Shoreham. . . .

L. The Federal Government's Proposed Emercency Plannino Exercise (119)- A federal exercise of an emergency plan for.a nuclear power plant is required under federal regulations.

(120) FEMA observes and grades such an exercise. Results of the exercise are part of FEMA's determination, on the adequacy of the emergency plan. FEMA's determination, in turn, is a rebutta-ble presumption in NRC licensing proceedings.

(121) The NRC makes a final determination as to the plan's ad-equacy to protect public health and safety. A full power op-erating license cannot issue for a plant absent an exercise. The results of the exercise can be litigated before the NRC.

(122) A FEMA exercise tests the capability of the emergency response organization to respond, in accordance with the planning documents, to an actual emergency. It involves a simulated

~ .

emergency. Emergency workers are mobilized and sent to emergency response centers, and simulate responding to a hypothetical emer-gency pursuant to exercise objectives. No members of the public are evacuated. An exercise scenario is drafted prior to the exer-cise and kept confidential from persons who may be asked to re-spond during the exercise.

(123) On November 14, 1984, LILCO requested a federal exercise of its plan and outlined specific objectives for the exercise.

(124) Federal officials have stated that the LILCO Plan should be exercised in order to determine whether a license should issue for Shoreham, that an exercise is the best indicator of whether the LILCO Plan could operate effectively in an actual emergency, and that a federal exercise is a fair and objective means to test whether the County's and State's position -- that no plan would work -- has any merit.

(125) On June 4, 1985, a majority of the NRC ruled that FEMA and LILCO should go forward with an exercise. By letter dated June 20, 1985, the NRC requested "that FEMA schedule as full an exercise of the LILCO local emergency response organization

("LERO") plan as is feasible at the present-time."

(126) On October 29, 1985, FEMA advised the NRC that two basic options existed for a LILCO Plan exercise. Under " option two":

Exercise controllers would simulate the roles of key state or local officials unable or unwillino to participate. It would be desirable that state and local government personnel actually play. However, such a simulation mechanism would at least test the utility's ability to respond to ad hoc participation on the part of state and local covernments.

(Emphasis added).

(127) By letter dated November 12, 1985, an NRC official stat-ed the Commission's conclusion that an exercise should be con-ducted using " option two," and that " option two would include all functions and normal exercise objectives, recognizing that some offsite response roles may be simulated."

(128) FEMA has initiated plans for a federal exercise consis-tent with option two of FEMA's October 29 letter.

(129) The federal exercise has been scheduled for February 13, 1986. A 120-day schedule that must be fulfilled prior to the ex-ercise is underway within FEMA. Extensive planning and drilling is being c.onducted by both FEMA and LILCO; exercise obje'ctives have been identified; the exercise scenario has been developed and approved by FEMA; and both FEMA and LILCO are prepared to go for-ward on February 13 with an exercise of the LILCO Plan.

M. The County's Local Law (130) In response to the planned federal exercise, on December 4

23, 1985 the County Legislature passed a resolution which adopts the Local Law (Exhibit A hereto). The resolution makes explicit I

reference to LILCO and Shoreham. Defendant Cohalan approved and signed the resolution and Local Law on January 13, 1986.

(131) The Local Law makes it a crime for any person to " con-duct or participate in any test or exercise of any response to a natural or man-made emergency situation if that test or exercise includes as part thereof that the roles or functions of any Suffolk County official will be performed or simulated."

(132) The Local Law sets up requirements and procedures for submitting to the Legislature a description of the proposed test or exercise for review and approval by the Legislature. The Local Law gives the County Legislature the authority to disapprove any federal exercise for Shoreham.

N. Conclusion (133) Having refused to provide any County emergency planning; having obtained a declaration that LILCO was prohibited from per-4 forming certain functions in the LILCO Plan in an actual emergen-cy; having taken deliberate steps to prevent any test or exercise of the LILCO Plan; and having failed in their attempts to persuade

- the' federal government not to conduct an exercise-of the LILCO Plan, the defendants have resorted to a Local Law containing crim-inal san;tions to deny LILCO the opportunity to show that, in an actual emergency, a State and County response (which is required by New York law), plus LILCO's planning, results in a plan that meets NRC regulations. Defendants' actions are designed to pro-hibit by fiat any opportunity for LILCO to show that its emergency i

plan is viable and that LILCO is entitled to an operating license for Shoreham.

i

COUNT I (134) LILCO repeats and realleges paragraphs (1) through (133).

(135) The Local Law arrogates to the County the authority to prohibit, by criminal sanctions, the federal regulatory processes of the United States Nuclear Regulatory Commission and the Federal Emergency Management Agency, and to destroy LILCO's rights under federal law.

(136) The Local Law regulates federal governmental and private activity in the field of radiological health and safety relating to the construction and operation of a nuclear power plant, a field reserved exclusively to the federal government under ,the Atomic Energy Act.

(137) The Local Law conflicts with and obstructs the objec-tives and purposes of federal law.

(138) The Local Law is preempted by the federal Atomic Energy Act, various NRC Authorization Acts, and federal regulations and is therefore void under the Supremacy Clause of the Constitution of the United States and also violates 42 U.S.C. 5 1983.

COUNT II (139) LILCO repeats and realleges paragraphs (1) through (133).

(140) The Local Law unlawfully and unreasonably prohibits, ob-structs and interferes with LILCO's rights under NRC regulations, the Atomic Energy Act, and the Due Process Clause, to be heard in

. . .. = - . .. . ..- . .- --

l

)

accordance with lawful procedures, to participate in federal regu-latory litigation involving LILCO's substantive rights and inter-

)

ests, and to present its case supporting an operating license to i l

the NRC.

(141) The Local Law is overbroad and vague. Key terms are nebulous and undefined. Persons are subjected to criminal liabil- 1 ity based not on their own conduct but on the conduct of other persons.

(142) The provisions of the Local Law lack any rational rela-tionship to a legitimate County governmental interest as required 4 by the Due Process Clause.

(143) The Local Law is lacking in fundamental fairness as.re-quired by the Due Process Clause.

(144) The Local Law therefore violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. S 1983.

COUNT III (145) LILCO repeats and realleges paragraphs (1) j through (133).

(146) The Local Law subjects to a criminal penalty all persons who " participate in any test or exercise of any response to a nat-

} ural or man-made emergency situation if that test includes as part thereof that the roles or functions of any Suffolk County official

. will be performed or simulated." <

. . - . . , _ _ _ . . - . . _ = . _ - , . . , _ . - _ . . _ . . - . - _ _ ._. . . . - . - - - - _ - . . . . - - - . . - -

(147) The Local Law interferes with LILCO's right and ability to advocate the licensing of Shoreham before the courts ar.d the administrative and regulatory bodies of the United States, and with LILCO's right and ability to persuade the public that Shoreham can be operated safely with a tested and approved emer-gency plan.

(148) The Local Law impermissibly infringes, and operates as a prior restraint upon, LILCO's right to petition the government and ,

LILCO's and LILCO's employees' rights of free speech, free politi-cal discourse, free association, and free assembly guaranteed to all persons by the First and Fourteenth Amendments to the United States Constitution and thus violates 42 U.S.C. 5 1983.

COUNT IV (149) LILCO repeats and realleges paragraphs (1) through (133).

(150) The County's Resolutions regulate in the field of ra-diological health and safety relating to the construction and op-eration of a nuclear power plant, a field reserved exclusive.ly to the federal government under the Atomic Energy Act.

(151) The Resolutions conflict with and obstruct the objec-tives and purposes of federal law.

(152) The Resolutions are preempted by the Atomic Energy Act, various NRC Authorization Acts, and federal regulations and are therefore void under the Supremacy Clause of the Constitution of the United States and also violates 42 U.S.C. 5 1983. p

_. ___ _ . _ _ ___ _ _. a

COUNT V (153) LILCO repeats and realleges paragraphs (1) through (133).

1 l (154) The actions of the County, including the Resolutl6ns, I

the~ Local Law, and other acticas described in this Complaint are designed to prohibit any emergency plan for Choreham, to prevent LILCO from bringing Shoreham into commercial operation and thus to I deprive LILCO of its property without just compensation.

(155.) The defendants caused LILCO reasonably to believe that.

the County would support, and certainly would not categorically oppose, an emergency plan for Shoreham.

(156) The actions of the County as described in this Complaint hcve thwart'ed'LILCo's reasonable investment-backed expectations

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and, if permitted to stand or to continue, wil) constitute a tak-

, ing of LILCO's property without just compensaticn, in violation of the Fifth and Tourteenth Amendments to the Constitution of the United States and 42 U.S.C. 5 1983. ,

COUNT VI (157) LILCO repeats and realleges paragrcphs (1) through (133).

(158) The Local Law is beyond the police powers of the County '

under the law of the State of New York, is arbitrary, capricious, and without rationel relationship to any legitimate purpose under the County's police power, and is therefore void under the Consti-tution and laws of the State of New York, 1 l

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COUNT VII (159) LILCO repeats and realleges paragraphs (1) through (133).

, (160) The Local Law regulates activities and governmental functions in the field of disaster preparedness and emergency planning.

)

(161) The authority to regulate activities and governmental functions in the field of disaster preparedness and emergency planning under New York law is reserved exclusively to the State under Article 2, S 11 of the Statute of Local Governments, Article 2-B of the Executive Law and other laws, and is beyond the power and authority of local governments such as the County.

(162) The County has no authority under New York law to pro-hibit or impede emergency planning or exercises of emergency plans.

(163) Article 2-B of the New York Executive Law makes it the policy of the State that emergency planning for, and responses to, radiological emergencies shall at all times be the most effective that current circumstances and existing rescurces allow.

(164) The Local Law prohibits essentiel aspects of effective emergency planning for Shoreham.

(165) The Local Law is inconsistent with and preempted by the law of the State of New York, including Article 2-B df the Execu-tive Law. .

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l (166) The Local Law is void under the Statute of Local Govern-ments, Article 2-B of the Executive Law, and the Constitution of the State of New York, f

1 COWT VIII (167) LILCO repeats and realleges paragraphs (1) through (133).

(168) The Local Lr.w imperraissibly inf ringes the rights of f ree speech, free political discourse, free association and free assem-bly guarantaed to all citizens of the State of New York by Article One, SS 8 and 9 of the Constitution of the State of New York.

GOUNT IX . .

(169) LILCO repeats'and realleges paragraphs (1) through (133).

(170) The Local Law assigns to the County Esgislature the role of adjudicating specific cases based upon specific facts and cir-cumstances and rendering decisions in those cases which subject persons to criminal penalties. The Local Law, in addition, pro-vides no means of judicial appeal of these adjudicatory decisions.

(171) The Local Law violates the separation of powers between the legislative and judicial branches of governr. ant ur. der New York law by usurping judicial functions to the County Legislature, cnd is therefore void under the Constitution and the laws of the State of New York.

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COUNT X (172) LILCO repeats and realleges paragraphs (1) through (133).

(173) Article 2-B of the New York Executive Law authorizes and requires the County Executive to respond effectively, with all necessary County facilities and personnel, in the event of an ac-tual radiological emergency at shoreham.

(174) The ASLB of the NRC has found that the LILCO Plan, if implemented by persons such as the County Executive having legal authority to do so, could adequately protect public health and safety.

(175) The County has represented to the NRC.that the Resolu-

- tions p.rohibit the County Executive f rom implementing ,cnr re-

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sponding in accordance with the LILCO Plan in any actual ra-diological emergency.

(176) As interpreted by the County, the Resolutions prohibit an effective response by the County Executive in any actual ra-diological emergency and violate Article 2-8 of the New York Exec-utive Law.

(177) As interpreted by the County, the Resolutions unlawfully interfere with the powers, duties and responsibilities of the County Executive and contravene the separation of legislative and executive powers under New York law.

i 1

(178) The Resolutions prohibit and impede emergency planning, contrary to Article 2-B of the New York Executive Law.

(179) The Resolutions, all actions pursuant to the Resolu-tions, and the County's actions to prohibit and obstruct emergency >

planning for Shoreham, are inconsistent with and preempted by the

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law of the State of New York, including Article 2-B of the New York Executive Law, and are therefore void under the Constitution of the State of New York, COUNT XI (180) LILCO repeats and realleges paragraphs (1) ,

through (133),

, (181) The County's. failure..to prov.ide or support the1most ef-fective emergency plan for a radiological accident at Shoreham that current circumstances and existing resources allow violates Article 2-B of the New York Executive Law.

COUNT XII (182) LILCO repeats and realleges paragraphs (1) through (133). j (183) The County knowingly and intentionally breached its con-tract with LILCO to provide an emergency plan for Shoreham satis-fying federal regulations.

(184) The County's breach of contract has caused LILCO to suf-fer severe and foreseeable damage, including delay in the commer-cial operation of Shoreham which results in capital carrying and o

.. o other costs in an amount exceeding $46 million per month, and may prevent the commercial operation of Shoreham, thereby causing LILCO to suffer damage in excess of $4,5 billion.

COUNT XIII (185) LILCO repeats and realleges paragraphs (1) through (133).

(186) The defendants clearly and unambiguously promised LILCO that the County would develop a radiological emergency reponse plan consistent with the requirements of state and federal law and regulations.

(187) LILCO relied to its detriment upon the promises and

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statements of the defendants regarding .the preparation of a ra-dialogical emergency response plan by continuing the construction and maintenance of Shoreham and by proceeding with efforts to se-cure an operating license for Shoreham.

(188) LILCO's reliance on the promises of the defendants was reasonable and foreseeable.

(189) The defendants are liable in damages for refusing to prepare a radiological emergency response plan that is consistent with state and federal law'and regulations.

COUNT XIV (190) LILCO repeats and realleges paragraphs ~(1) through (133).

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(191) If permitted to stand or to continue, the County's ag-tions as described in this Complaint vill constitute a taking of LILCO's $4.S billion investment in Shore'has without just compensa-tion, in violation of Article one, 5 7 of the Constitution of the State of New York.

WHEREFORE, LILCO respectfully requests judgment against the defendants as follows:

(1) Under Countr, I, II, III, VI, VII, VIII and IX a declara-tion that the Local Law is void and injunctive relief restraining tne enforcement of the Local Law in any manner, (2) Under Counts IV and.X, a declaration that.the Resolu-

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.tionsarbvoidandinjunctivereliefrestraininganyact.icapursu-ant to the Resolutions, (3) Under Counts V and XIV, a declaration that the defen-dants' actions constitute a taking of Shoreham for which just com-pensation must be made, and a judgment against the County in an ,

amount to be determined in excess of $4,5 billion.

(4) Under counts XII and XIII, a judgment against the County in sh amount to be determined in excess of $4.5 billion or, in the alternative, an injunction mandating cpecific performance by the i County of its obligations to provide effective emergency planning for Shoreham in accordance with federal criteria and regulations.

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(5) Under. counts X and XI, a declaration that the actions of the County are unlawful and void, and an injunction requiring the defendants to fulfill their obligations and duties.

(6) LILCO's costs and reasonable actual attorneys' fees.

(7) Such other relief as the Court may deem just and proper.

DATED: January 15, 1986 New York, New York HUNTON & WILLIAMS Attorneys for Plaintiff LONG ISLAND LIGHTING COMPANY k

. By David R. Davies '

David R. Marshall HUNTON & WILLIAMS 100 Park Avenue - 10th Floor New York, New York 10017 (212) 980-8200 (212) 309-1030 W. Taylor Reveley, III K. Dennis Sisk Kathy E.B. McCleskey HUNTON & WILLIAMS 707 East Main Street Richmond, Virginia 23219 (804) 788-8200 Of Counsel:

Anthony F. Earley Terrence J. O'Rourke LONG ISLAND LIGHTING COMPANY 175 East Old Country Road Hicksville, New York 11801 (516) 933-5015

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