ML20205E062
| ML20205E062 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/21/1988 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#488-7351 OL-3, NUDOCS 8810270295 | |
| Download: ML20205E062 (24) | |
Text
,- ,-_________
a I LILCO, October 21,1988 735/
C2C"! Ti:
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'88 OCT 25 PS:04 Before the Atomic Safety and Licensing ADDeal BodEij t Mar u in the Matter of )
)
LONG ISLAND LIGl{ TING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning) '
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S REPORT TO THE APPEAL BOARD ON THE PROGRESS AND EFFECT OF THE TOWN OF HEMPSTEAD CASE In its letter of September 22, 1988,I LILCO advised the Appeal Board that it would comment further on the effect of the judgment, entered September 20,1988, in Town of Hempstead v. Long Island Lighting Co., Index No. 23779/87 (N.Y. Sup. Ct. Aug.
22, 1988). The Town of Hempstead decision holds that the use of the Bellmore facility as a reception center and the storage of a decontamination trailer and related equip- ;
ment would violate the Town's zoning ordinance as to permitted uses unless the existing special utility permit were amended to permit such a use. It is undisputed, however, that authorization for this use may be obtained in the event of a declaration of a local l or state radictogical or other disaster emergency pursuant to Article 2-B of the New York Executive Law.
This pleading is LILCO's view on the effect of the Town of Hempstead case on ;
the proceeding pending before this Appeal Board. For the reasons set out below, LILCO submits that the Town of liempstead judgment has no materialimpact on this NRC pro-ceeding because it does not preclude the use of the Bellmore site in the event a local or 1/ Letter from Donald P. Irwin to Thomas S. Moore et al., Sept. 22, 1988.
r l 9
e state radiological emergency is declared and the site is required to protect the public r 1
health, safety, and welfare. LILCO therefore urges the Appeal Board to du one of two ,
things:
- 1. Rule that the Town of Hempstead judgment is immaterial to the NRC licensing issues because the Bellmore site would be made avail-l able if needed in a real emergency pursuant to Articlo 2-B of the New York State Executive Law and the "realism" principle of 10 :
C.F.R. S 50.47(c)(1) (see section !! below), or, in the alternative,
- 2. Rule that the judgment has not been properly raised as an issue in this NRC proceeding (see section !!! below). !
!. LILCO Has Asked the State Court to Modify the Judtment First, LILCO wishes to inform the Appeal Board that further legal proceedings in the state courts are underway. On October 20 LILCO filed a notice of appeal of the l Town of Hempstead case with the Appellate Division of the New York Supreme Court.
On October 21 LILCO filed with the trial court a motion seeking reargument and an amendment of the judgment to reflect the elfeet of Article 2-B of the New York Exec- [
i' utive Law.
LILCO s request to the trial court, in essence, is that the final judgment be clari- !
- fled to recognize that Article 2-B applies and would permit the Bellmore site to be used l i
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- in an emergency. LILCO is also asking the court to modify the judgment with respect [
4 to the use af Bellmore for drills and exereirts and to clarify the requirement that cer-o tain structures, equipment, and facilities be removed.
l LILCO expects that the issue of whether the judgment should be modified will be resolved by the trial court within about three weeks. In the meantime, the precise lan-l guage of the final judgment is, in LILCO's view, still an open issue, i
- - - - - - - . _ , s
I U. The Bellmore Site May Be Used as a Reception Center Pursuant to a Declaration ,
of a Local or State Radiolarical Emergency Any legal barriers to using Bellmore could be removed by getting authorization by government authorities, at the time of an emergency, under Article 2-B of the New York Executive Law. For example, under Section 24 of the state law, a chief execu-tiveN may proclaim a local state of emergency and promulgate local emergency orders l
l providing for, among other things, "the suspension within any part or all of its territori-al limits of any of its local laws, ordinances or regulations, or parts thereof . . . which l may prevent, hinder, or delay necessary action in coping with a disaster or recovery therefrom." N.Y. Exec. Law S 24.1.f (McKinney 1982)(included in Attachment I to this pleading). Under Section 29-a.1 "the governor may by executive order temporarily sus-pend specific provisions of any statute, local law, ordinance, or orders, rules or regula-tions, or parts thereof, of any agency during a state disaster emergency, if compilance with such provision would prevent, hinder, or delay action necessary to cope with the -
disaster." N.Y. Exec. Law S 29-a.1 (McKinney 1982)(included in Attachment 1). Decla- !
I ration of a disaster emergency by the governor is mandatory under state law whenever l a disaster has occurred or may be imminent for which local governments are unable to :
respond adequately. N.Y. Exec. Law S 28.1 (McKinney 1982) (included in Attachment 1). It is not disputed that the Town of Hempstead judgment is subject to these provi- [
sions of Article 2-B of the New York Executive Law.
It has always been understood, and of ten stated, that LILCO would be in commu- l nication with local and state authorities in an emergency. See LBP-8813,27 NRC 509, [
l 545 (1988) (LILCO plans to request the assistance of the Nassau County Police l 5
2/ Under state law "chief executive" means a county executive, a mayor or manag- g er of a city or village, or a supervisor or manager of a town. N.Y. Exec. Law S 20.2.f -
(McKinney 1982)(included in Attachment t),
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O Department); LBP-88-24,28 NRC , slip 3p. at 140 (Sept. 23,1988)(LILCO plan pro-vides procedures for communicating with responsible County and State officials):
LILCO Ex.1 (Crocker et al. testimony) at 62 (if necesr.ry, LILCO would seek approval of the authorities): LILCO Offsite Plan at 1,4-2b (Nassau County might be called on to suspend zoning ordinances): LILCO Offsite Plan implementing Procedure OFIP 3.1.1 p. 6 of 90 (procedure provides for calling Navau County Executive at "Alert" stage of emer-gency): OPIP 3.1.1 p. 8 of 90 (procedure provides for sending liaison people to Suffolk and Nassau County Executives and the State Emergency Operations Center in Albany).
This communication with local and state governments would occur whether or not the governments had cooperated in emergency planning before the emergency oc-curred and whether or not the Town of Hempstead judgment existed. In a real emer-gency, then, LILCO would ask the government authorities to suspend laws, including local zoning ordinances, to the extent that they prevented people from being monitored or jeopardized their health and safety. Under the Commission's regulatinns, it is indis-putable that the authorities would use their "best efforts" to respond to the emergency and to protect the health and safety of the public.10 C.F.R. S 50.47(c)(1)(1988). This "t:ast efforts" response would necessarily include providing the necessary prior approval or invoking existing statutory authority to suspend temporarily local laws that would otherwise prevent evacuees from being helped.
The Town of Hemostead judgment also prevents LILCO from keeping its decontamination trailer onsite prior to an emergency and requires LILCO to remove, for example, a transformer that was installed t7 provide electricity to the trailer. This might delay decontamination (if decontamination was necessary), but it would have no effect on monitoring.E LILCO is not reaufm to provide showers, as distinguished 3/ Supplies and equipment used for monitoring, such as monitoring instruments and protective clothing, are stored in an equipment trailer and can simply be transported to the site when an emergency occurs.
f
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l from monitoring. Indeed, NUREG-0396 expressly does Dg1 recommend "special local j decontamination provisions for the general public (e.g., . . . special showers)." The i !
guidance of NUREG-0654 Criterion J.12 and the 20 percent goldance in the Krimm ,
Memorandum apply only to monitoring, not decontamination. See NRC Staff Ex. 5 i I
(Kantor testimony) at 7. And, as the hearing record shows, the Environmental Proter tion Agency has endorsed the approach of having people bathe at their destinations and !
then report to evacuation centers for monitoring. LILCO Ex.1 (Crocker eJ_aj, testimo-ny) at 59. [
i Nevertheless, in the event of a declared emergency LILCO would provide l
decontamination showers at Bellmore. Since the decontamination trailers are mobile, ,
it would be possible to move one of them to the Bellmore si.e (along with a portable -
generator to supply electricity) at the time of an accident. Another way of solving the shower problem is to provide portable showers that can be stored either onsite or [
of fsite and then set up at Bellmore at the time of an emergency. A third way is to ex- ;
r pand the existing restroom facilities at Bellmore used ordinarily by LILCO line crews, i
A fourth way is to ask the Town of Hempstead to issue an amendment to LILCO's spe- j clat use permit to allow the use of Bellmore as a reception center.S In short, LILCO will need to make no significant changes in its of fsite emergency plan in response to the Town of Hempstead case, either for monitoring or for decentamination. It may be desirable to revise the plan to make clear that permission l t
of the authorities will be sought. And showers other than those in the decontamination !
trailers may have to be provided. But the Town of :Temostead judgment has no impact .
i State law prevents a municipality from barring a utility f aellity necessary for I 3/
providing service to the public and silows the municipality only to impose reasonable !
conditions. b'Lagara Mohawk Power Cord. V. City of Fulton, 8 A.D.2d 523, 527,188 ;
N.Y S.2d 717, 721-22 (1959); Consolidated Edison Co. of New York v. Hoffman, 43 j N.Y.2d 598, 401 N.Y.S.2d 193,200, 374 N.E.2d 105,109 (1978) j i
l
O A d
i on the availability of the Bellmore facility in a real emergency and no impact on the is- l
- sues in this case.W ID. The Issue of Bellmore's UnavallahlJity Has Not Deen Properly Raised i The issue of Belimore's unavailability is not properly before the Appeal Board, the Intervenors attempted to raise it in a letter. Letter from David T. Case, counsel for Suffolk County, to the Appeal Board, August 25, 1988. They should have moved to j reopen the record instead. But even if they had, they could not have met the standards i for reopening.
In the Seabrook case the Town of Rye, New Hampshire, had succeeded in having a New Hampshire Superior Court conclude that New Hampshire statutcry law precluded i
I the grant of lleenses to erect new poles for purposes related solely to the stren system.
As a result, the court declared "null and void all such licenses, and this declaration led j to an order directing the applicants to remove the poles. Public Servlee Company of l New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-879, 26 NRC 410, 413-14 (1987).
l An intervenor in Seabrook moved to recpen the record and was denied. The Ap-peal Board encountered "no difficulty in agreeing with the Licensing Board that the 1
i concern engendered by the Superior Court's ruling was premature." Id. at 414-15.
l l Since the siren poles had not been removed and would continue to remain in place until 1
- at least the outcome of the pending appeal to the state supreme court, the Appeal Board said that it need not speculate on the likely outcome of the case. Id.
I l
5/ Since Bellmore would be available in a real emergency, if necessary to protect I the pub!!c, it is not necessary for the Appeal Board to deal with the f actual issue whether its elimination from the plan would affect traffic. As explained above, LILCO need not eliminate Bellmore from the plan. The traffic plan remains unchanged.
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I A few months later, the Attorney General of Marcachusetts moved to reopen the .
1 evidentiary record based on the assertion that the city of Newburyport, Massachusetts, had "dismantled and removed *' all of the emergency notification sirens, poles and relat- ;
ed equipment. In this case the Appeal Board granted the motion. Pub!!c Service Com- t pany of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-883,27 NRC 43 (1988). [
In the Shoreham case there has been no motion to reopen. If there had been, the reasoning of ALAB-879 would apply. The Bellmore f acility is still in place even under the original Town of Hemostead judgment of September 20. The decontamination trail- I a
er has been removed but can be moved back. Moreover, LILCO has taken an appea! !
from the Town of Hemostead decision and has sought reargument of the matter before -
1
! the trial court and modification of the judgment. ;
Even leaving aside ALAB-879, the Intervenors simply cannot meet the standards for reopening a record. Pursuant to 10 C.F.R. S 2.734(a)(1), a motion to reopen a closed record must be timely; here, no motion was filed at all, let alone a timely one. More-f over, as demonstrated above, the issue presented is not "exceptionally grave" so as to e
- permit consideration of an untimely motien to reopen.10 C.F.R. S 2.734(a)(1).
- Under 10 C.F.R. S 2.734(a), Intervenors' letter request for the Appeal Board to take into account Town of Hemostead does not address a "significant safety or environ-mental issue " 10 C.F.R. S 2.734(a)(2), because, as discussed at oral argument LlLCO
- meets the applicable licensing requirements and regulatory guidance even without the Bellmore facility.0 Moreover, the use of Bellmore is not precluded in an actual i
] g/ As noted at oral art (ument, even without Bellmore LILCO would have the capael-
) ty to monitor 36% of tre EPZ population. There are 32 monitoring stations at Hicksville,16 at Roslyn, a..d 15 at Bellmore. At 36 vehicles per station per hour and I 2,8 people per vehicle, in 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> the reception centers can monitor the following l numbers of people:
l i
j (footnote continued)
emergency. For these reasons, Intervenors' request also falls to demonstrate that "a materially different result would be or would have been likely had the newly proffered evidence been considered initially," 10 C.F.R. S 2.734(a)(3).
In particular, Intervenors have failed to show a "significant safety or environ-mental issue" or a "materially different result" with regard to traffic. The Licensing Board has given extensive consideration to the Long Island highway system on two oc-casions. See LDP-88-13, 27 NRC 509, 546 (1988). Indeed, the Board observed that
"(w]hatever uncertainties still remain, we are now confident that traffic performance in an emergency has been probed to bedrock." Ld. at 547. It concluded as follows:
The Board is convinced from LILCO's analysis that sufficient highway and reception center capacity exists so that traffic problems will not frustrate the timely monitoring of the num-ber of evacuees in LILCO's plan. The Board therefore finds reasonable assurance that impler. entation of LILCO's recep-tion center plan would achieve significant dose reduction for affected populations in an emergency at Shoreham.
Id. at 548. Intervenors have offered nothing more than unsupported speculation about potential traffic im7 acts.N Such speculation provides no basis whatsoever to justify (footnote continued)
Percent of [
People in EPZ Population '
Center 12 Hours (160.000) l Hicksville 38,707 24%
Roslyn 19,354 12 %
Bellmore 18.144 11%
76,205 47% ;
See LILCO Ex.1 (Crocker et a!, testimony) at 32,42, and Att. J. l I/ See Letter f rom David T. Case, counsel for Suffolk County, to the Appeal Board, August 25, 1988. As can be seen from the tables in LILCO's traffle analysis, KLD TR-101A (Attachment T to LILCO's written testimony), in every case the capacity of the roads leading to the reception centers is greater than the corresponding processing ca-pacity at the reception centers themselves. See Attachment T at 21-26: see also LBP-88-13, 27 NRC 509, 539 (1938), in short, the cars would move as tast as the reception centers could process them, and the roads leading to the reception centers would be able to supply enough cars to keep th'. process moving.
9 b
reopening the record and further delaying resolution of tht' issue.
The only issue on appeal to this Appeal Board that the unavailability of Bellmore j would even arguably affect is the 20 percent issue, that is, the issue whether FEMA's
'l !
] national policy of planning for at least 20 percent of the EPZ population should be over- l t
ruled by the NRC. Even with respect to this issue, since Bellmore increases the number of people LERO alone can monitor from about 36 to about 47 percent,its availability is ,
relevant only if the NRC adopts a criterion of more than 36 percent, which would have ;
no basis in the record. Even if relevant, the unavailability of Bellmore would not be !
dispositive. The capacity figures that have been cited for the LILCO reception centers ,
, t (see footnote 6 above) refer only to the "first-line" plan using exclusively LILCO re- l sources without help from outside agencies. But, in addition, the LILCO plan contains :
I
! f all-back procedures for
)
- 1. Expanding the number of monitoring stations at the three LILCO j sites from 63 to 140;
- 2. Calling in additional monitors from INPO and the Department of En-l ergyt
- 3. Calling in additional monitors f rom state and local governments; j
) 4. Changing the monitoring procedure to a faster "screening" method, 1
j and ,
- 5. For very extreme cases, advising people to proceed to their destina-tions and shower and then return to a reception center later for l t
j monitoring. l See,94, LILCO Ex.1 (Crocker et al. testimony) at 52-54, 59; Tr.17,725-27 (Crocker, i l i Linnemann), 17.664-65 (Dreikorn). Also, LILCO's previous traffic anlayses (principally j i i K1.D TR-201A) assumed that approach routes would not require traffic management
{
t l strategies to divert "background traffic." Since the hearing the NRC has promulgated 1 .
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j its "realism" rule 10 C.F.R. S 50.47(c)(1), 51 Fed. Reg. 42,078, 42,086 (1987), making clear that local governments would use their "best efforts" in a real emergency. The !
i "best efforts" of the police and local authorities would reasonably be expected to help l
l control the flow of traffic, divert ordinary (nonevacuating) traffic, and maximize the l
- flow of evacuees toward the reception centers. In short, the percentage capacitics on I
which LILCO has principally relied to meet FEMA's 20 percent policy are considerably
- less than the actual existing capacity to monitor evacuees. !
i IV. The lasue of Bellmore's !
AyallabilltY 18 Immaterial 1
' i For the above reasons, the issue, raised by the Intervenors inappropriately in a j letter, is not properly before the NRC and in any event is immaterial both to meeting !
NRC requirements and to protecting the pub!!c health and safety. The Bellmore facili-l ty would be available in an emergency if necessary to help protect the public. LILCO t l need not change its monitoring plan, except perhaps to make clearer what has always been the case, which is that action in an emergency would not be taken without the co-j operation of state and local authorities. l i
j Respectfully submitted, I 1 !
1 l : W'4 i Donald P. Irwin' l I
James N. Christman [
Counsel for Long Island Lighting Company (
Hunton & Williams )
707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 21,1938 ;
I I !
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! I I !
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Attachaunt 1
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- ARTICLE 2-B-STATE AND LOCAL NATURAL AND MAN-MADC DISASTER PREPAREDNESS see.
- 20. Natural and man made disasters; policy; definitions.
- 21. Disaster preparedness commission established; meetings; pow-ers and duties.
- 22. State disaster preparedness plans.
23, Local disaster preparedness plans.
- 24. Local state of emerrency; local emersency orders by chief exec-utive.
- 25. Use of local government resources in a disaster.
- 26. Coordination of local disaster preparedness forces and local civil defense forces in disasters.
- 27. Continuity of local governments.
- 28. State declaration of disaster emergency.
28-a. Post disaster recovery planning.
- 29. Direction of state agency assistance in a disaster emergency.
29-a. Suspension of otherlaws.
29-b. Use of civil defense forces in disasters.
29-c. Radiological preparedness.
29-d. Reports.
f 20. Natural and man made dissaiersi policy: definitions
- 1. It shall be the policy of the state that :
- a. local government and emergency service organizatione continue their essential role as tl e first line of defenae in times of disaster, and that the state provide appropriate supportive services to the extent necessary;
- b. local chief executives take an active and personal role in the development and implementation of disaster preparedness programs and be vested with authority and responsibility in order j
to insure the success of such programs;
- c. state and local natural disaster and emergency response functions be coordinated in order to bring the fullest protection and benefit to the people;
- d. state resources be organized and prepared for immediate effective response to disasters which are beyond the capability of local governments and emergency service organizations; and e, state and local plans, organizational arrangements, and re.
l sponse capability required to execute the provisions of this arti-cle shall at all times be the most effective that current circum.
, stances and existing resources allow.
21 l b t
4 o t i 20 sxsctmvs i.Aw Art. 2-a l
.- 2. As used in this article the following terms shall have the following meanings:
- a. "disaster" means occurrence or imminent threat of wide i
! spread or severe damare, injury, or loss of life or property re. I sulting from any natural or man.made causes, including, but not limited to, fire, flood, earthquake, hurricane, tornado, high water.
landslide, mudslide, wind, storm, wave action, volcanic activity.
epidemie, air centamination, blight, drought, infestation, explo-
! sion, radiological accident or water contamination.
- b. "state disaster emergency" means a period beginning with i
a declaration by the governor that a disaster exists and ending upon the termination thereof,
- c. "municipality" means a public corporation as defined in l subdivision one of section sixty six of the reneral construction
] law and a special district as defined in subdivision sixteen of l section one hundred 1Wo of the real property tax law.
3 d. "comtnission" means the disaster preparedness commis-slon created pursuant to section twenty one of this article.
- e. "emergency services organisation" means a public or pri-vate anney, organisation or group organised and functioning i
for the purpose of providing fire, medical, ambulance, recue, j housing, food or other services directed toward relieving human suffering, injur/ or loss of life or daman to property as a result
! of an emergency, including non profit and rovernmelitally sup-
- ported organlaations, but excluding governmental agencies.
2
- f. "chief executive means:
(1) a county executive or manager of a county;
! (2) in a county not having as county executive or manager, I the chairman or other presiding officer of the county legislative
! body;
) (3) a mayor of a city or villan, except where a city or villaJe j has a manapr. It shall mean such manager; and l (4) a supervisor of a town, except where a town has a man.
4 apr,it shall mean such manager.
Added L.1978, c. 640. I 3.
4 i Histortest Note l Iffective Dete. Nortlosi effn-the term, i.ften caumi nr noenrunandal lay i Apr. l.1079 luttsuant tti T lliTM. v. mankleurs uw u meta, cau =* Inon ,+ f tl+l. I 7. life, pfvte rt." naul Inowne, disrupt the i Leglelative Fladlege. $cstion 1 ut normal functline of suientw nt, nim-
} I 197M.e.tHil,pruvklat: munities mud f aintlica. neul enume "The lestatature herrby finds aint arvat humani sufferleis. Ttw lesista-i alsvlarve that a wide tarlety of dlun- ture further flinje that it must pro-1 ?,2 i
i 4
l 1
i T &Mg.
e Art. 2-8 DISASTER PREPAHED. Ness s 21
- vide for prepxt:tions to prevent. state and its pellthti suhilvisions by mwt, defend against and re ser the Intettration of their natural disae-from, dangers and problema nrining ter and lencetime emergency re.
frnm these emergencies with the almin ne functions with the cisit de-le4mt l=>asible Interference with the fense program, thus utilizing local esteting division of the powers of the gmernment anal emergency servl&s acut ernment. nrganizatione for rJapunse to im>t h "The legislature finds that a joint natural crul inanmaste dinaster and to effort pubile und private. In rweded attark.
to mobillr.e the resoure+e of Individu- "Tlwa legt.latu re finde that los al ale. huelneen. labor, agriculture, and dl.neter preparednese plane are co-roternment at every lesel-fnletal, watial in neder to minimtw guitential
=taf, and I.u nl-for effwtive negent, dl a.ters and their effwts, provide ,
anuun ta pertiste for and onett natu- for effwt've bral re.ruinnes when '
rni seul man made dian. tern nf all diammtere eurur and facilitate local kinde. reem ery. 'lte legislature further "The legislature finde that the finds that hwsi plana cunatitute an state must give leadership and diree- ,+ mential part of the statewide disas-ti,ns to thle linportant ta k of estab- ter preparednese program and that ,
lishing an emergency dipester prepar. without local disaster planning, no s ninear program for the protedlun of state disaster prograin sen le fully each ='rmon in the state, e f fettit e."
. "The legislature finds that a mu- l tual benefit can te derived by the New Yortt Codes, Rules and Regulatless Natural disaster ami olill defense, um 9 NY(*ltit l' art NIS et eg.
9 21. Dinaster prepareda a commi i.n tabii.hedi meet.
Ings; powers and duties ,
- 1. There is hereby created in the executive department a dis.
aster preparedness commission consisting of the commissioners of transportation, health, state energy office, division of crimi.
nal justice services, education, social services, commerce, agricul.
ture and markets, housing and community rf'newal, general serv. ,
lees, and environmental conservation, the superintendent of state police, the secretary of state, the state fire administrator, the chairman of the public service commission, the industrial com.
missioner, the chief of staff to the governor, and three additional -
members, to be appointed by the governor, two of v hom shall be chief executives. Tiie governor shall designate the chairman of L the commission. The members of the commission, except those who serve ex offielo, shall be allowed their actual and necessary expenses incurred in the performance of their duties undu this '
article but shall receive no additional compensation for services rendered pursuant to this article, i I
- 2. Ths commission, on call of the chairman, shall meet at least twice each year and at such other times as may be neces. L sary. The agenda and meeting place of all regular meetings l w eo-a 23 j e,
f I
t I
3
4 sxectrTivs i.Aw Art. 2-n 9 23 (13) control of ingress and egress to and from a disaster area; (14) arrangements to administer s; ate and federal diwter a=sistance; (15) procedures under which the county, city, town, village or other political subdivision and emergency organisation personnel and resources will be used in the event of a disaster; (16) a system for obtainir.g and coordinating disaster in.*or.
mation including the centralized assessment of local disaster ef.
fects and resultant needs; and (17) continued operation of governments of political subdivi.
sions.
4
- c. Recovery. local plans to provide for recovery and rule.
velopment after disasters shall include, but not be limited to:
(1) recommendations f1r replacement, reconstruction, remov.
al or relocation of damaged or destroyd public or private facill.
ties, proposed new or amendments to soning, subdivision, build.
l Ing, sanitary or fire prevention regulations and recommenda.
tions for economic developrvent and community development in 4
order to minimise the impact of any potential future disasters on the community. '
l (2) provision for cooperation with state and federal Egencies in recovery efforts.
(3) provisions for training and educating local disaster offi.
cials or organisations in the preparation of applications for fed.
W eral and state disaster recovery assistance.
Added 1 1978, c. 640, I 3.
t J Histeetcal Note s
Etfestive Dete. I'm tion efftetite Apr.1.1979, twrouant in ! l1474, r.
40.I7.
Lheory itefmaces l Casunties Cagl%. P.J.M. tbuntles t 418.
C.J.M. Stunkipal thr;uarations I ltel Sluuldpal Curturattueis Ca.%T.
et mist, a
i 24. toe.1 stan of =rsency: local emeesency oniere by chief esecutive
- 1. Notwithstanding any inconsistent provision of law, gener.
al or special, in the event of a disaster rioting, catastrophe, or similar public emergency within the territorial limits of any 30 i
d i
1
Art. 2 8 DISASTER PREPAREDNESS 24 county, city, town or village, or in the event of reason:ble cppre.
hension of immediate danger thereof, and upon a finding by the chief executive thereof that the public safety is imperiled there-by, such chief executive may proclaim a local state of emergency within any part or all of the territorial limits of such local gov-ernment; provided, however, that in the event of a radiological accident as defined in section twenty nine c of this article, such chief executive may request of the governor a declaration of dis.
aster emergency. Following :uch proclamation and during the co.itinuance of such local state of emergency, the chief executive may promulgate local emergency orders to protect life and prop-erty or to bring the emergency situation under control. Such orders may, within any part or all of the territorial limits of such local government, provide for:
- a. the establishment of a curfew and the prohibition and con-trol of pedestrian and vehicular traffic, except essential emer-gency vehicles and personnel;
- b. the designation of specific zones within which the occupan-cy and use of buildings and the ingress and egress of vehicles and persons may be prohibited or regulated;
- c. the regulation and closing of places of amusement and as-sembly;
- d. the suspension or limitatic. of the sale, dispensing, use or transportation of alcoholic beverages, firearms, explosives, and flanmable materials and liquids;
- e. the prohibition and control of the presence of persons on public streets and places;
- f. the suspension witnin an) part or all of its territorial lim-its of any of its' local laws, ordinances or regulations, or parts thereof subject to federal and state constitutional, statutory and regulatory limitations, which may prevent, hinder, or delay nee.
essary action in coping with a disaster or recovery therefrom whenever (1) a rcauest has been made pursuant to subdivision seven of this section, or (2) chenever the governor has declared a state disaster emergency pursuant to section twenty-eight of this article. Suspension of any local law, ordinance or regi^ -
tion pursuant to this paragraph shall be subject to the following standards and limits:
(i) no suspension shall be made for a period in excess of five days, provided, however, that upon reconsiderat'on of all the rel-evant facts and circumstances, a suspension may be extended for additional periods not to exceed five days each during the pen-dency of the state of emergency; 31 m
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$ 24 EXECUTIVE LAW Art. 2-H
'l (ii) no suspension shall be made whleh does not safeguard the health and welfare of the public and which is not reasonably necessary to the disaster effort; (iii) any such suspension order shall specify the locallaw, or-dinance or regulation, or part thereof suspended and the terms and conditions of the suspension; (iv) the order may provide for such suspension only under particular circumstances, and may provide for the alteration or modification of the requirements of such locallaw, ordinance or regulation suspended, and may include other terms and condi-tions; (v) any such suspension order shall provide for the minimum deviation from the requirements of the local law, ordinance or regulation suspended consistent with the disaster action deemed necessary; and (vi) when practicable, specialists shall oe assigned to assist with the related emergency actions to avoid adverse effects re-sulting from such suspension.
- 2. A local emergency order shall be effective from the time and in the mar.ner prescribed in the order and shall be published as soon as practicable in a newspaper of general circulation in the area affected by such order and transmitted to the radio and television media for publication and broadcast. Such orders may be amended. modified and rescinded by the chief executive during the pendency or existence of the state of emergency.
Such orders shall cease to be in effect five days after promulga-tion or upon declaration by the chief executive that the state of emergency no longer exists, whichever occurs sooner. The chief executive nevertheless, may extend such orderd for additional perioda not to exceed five days each during the pendency of the local state of emergency.
- 3. The local emergency orders of a chief executive of a coun-ty shall be executed in triplicate and shall be filed within seven-ty two hours or 2s soon thereafter as practicable in the office of the clerk of the governing board of the county, the office of the county clerk and the office of the secretary of state. The local emergency orders of a chief executive of a city, town or village shall be executed in triplicate and shall be filed within seventy-two hours or as soon thereafter as practicable in the office of the clerk of such municipal corporation, the office of the county clerk and the office of the secretary of state.
- 4. Nothing in this secti:n shall be deemed to limit the power of any loc.l government to confer upon its chief executive any additional duties or responsibilities deemed appropriate.
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a A rt. 28 DISASTER PREPACEDNElis i 24
- 5. Any person who knowingly violates any local emergency order of a chief executive promulgated pursuant to this section '
is guilty of a class B misdemeanor.
6, whenever a local state of emergency is declared by the '
chief executive of a local government pursuant to this section. l the chief executive of the county in which such local state of l' emergency is declared, or where a county is wholly contained within a city, the mayor of such city, may request the governor i to remove all or any number of sentenced inmates from institu.
tions maintained by such county in accordance with section nine-ty three of the correction law,
- 7. Whenever a local state of emergency has been declared pursuant to this sectior., the chief executive of the county 'n l wt.ach the local state of emerrency has been declared, or where a ;
county is wholly contained within a city, the chief executive of t, the city, may request the governor to provide assistance under this chapter, provided that such chief executive determines that I the disaster is beyond the capacity of local government to meet l adequately and state assistance is necessary to supplement local ;
efforts to save lives and to protect property, public health and !
safety, or to avert or lessen the threat of a disaster. i
- 8. The legislature may terminate by concurrent resolution, !
such emergency onlers at any time.
Added L1978, c. 640, I 3, amended L19til, c. 708, i 1.
[
Hiseerteel Nese !
sesd.1, speal Ag par. AmendM f. Article, such chie f etetutive naar re.
10841, e. 70M, i 1, eff July 31, IDal. In spirit of the annernor a decistation ;
mentenw beginning "Notwith tandlha of disaster emergency". '
any Inivnsistent" by inserting "t pre p,g g g, g g l ef rad ca scri ut as A E'* I* ' E"I'"*"I I" I*
fined la settica tuvoty alue.c of thin I I' Library Re$secases !
Stunnetpal Corporatione Salet. C.J 14 Stunicipal Corporations l l Mt >
?
Notes of Deeloisas ,
Jewealle eerfew 3 Power of thief esseetlee i Ptolerty la ble licality, and he le i also authorised O use schoul lainre to [
ectie with a dineeter as luos as the meland dist rlet harmL 19pek 4
- 4. Peser of chlet enesellee Atty. Gen.14c. M I The chief esecutive of a heat sov. The chlet esecutive of a county '
ernment may declare a state of emer- may unilaterally declare a kral state t sency with respect to statesu ned of emeteracy la a city, town or vil-
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9 24 ExeccTivE Law Art. 2-15 late within the territor's! limits of authority to enart a jinentle curfew the county without ti.e prior concur- innder its guille, gower if the ruf few ren<v of thJ chief wetutive of euch le neitsaary for the prote , tion or city town t r tillare, 1979. Op. AttT. pre eristion of the public he alt h.
Gen.21. =afety and welfare and in such in.
etan<w the curfew must te reasonable
- 2. Jovealle eerfew in relation to the ende sought to to A town has no authoilty to enact a schiet ed and should tv narrowly juvenile curfew that holds parents dramn to avoid 'nfringing on the fitn-reasonsible for their < hildren's 51014- damental rights of jinenilee. 19M, tien of the curfew but it does Have Op. Atty. Gen. Ilnf.) Dec.1%
s 25. cse of iocal goverament re.ources in a diauter
- 1. Upon the threat or occurrence of a disaster, the chief ex.
ecutive of any political subdivision is hereby authorized and em.
powered to .kd shall use any and all facilities, equipment, sup-plies, personnel and other resources of his political subdivision in such manner as may be necessary or appropriate to cope with the disaster or any emergen, y resulting therefrom. l
- 2. Upon the threat or occurrence of a disaster, a chief execu. l tive may request aSa accept assistance which is coordinated and l directed by the county chief executive as provided in section l twenty six of this article.
- 3. A chief executive may also request and accept assistance from any other political subdivision and may receive therefrom and utilize any real or personal property or the service of any personnel thereof on such terms and conditions as may be mu-tually agreed to by the chief executives of the requesting and av sisting political subdivicions.
- 4. Upon the receip'. of a request for assistance made pursu-ant to subdivision two or three of this section, the chief executive of any political subdivision may give, lend or lease, on such terms and conditions as he may deem necessary to promote the public welfare and protect the interests of such political subdivi-sion. any services, equipment, facilities, supplies or other re-sources of his political ubdivision. Any lease or loan of real or personal property pursuant to this subdivision, or any transfer of personnel pursuant hereto, shall be only for the purpose of as-sisting a political subdivision in emergency relief, reconstruc-tion, or rehabilitation made necessary by the disaster.
- 5. A political subdivision shall not be tinte for any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of any officer or employee in carrying out the provisions of this see-tion.
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a Art. 2 5 Dl8 ASTER PREPARd2 Ness i 28 .
resolution enacted prior to April first, nineteen hundred seven. e ty.nine or actions taken thereunder by the government of any county, city, town or village, ,
e
- 2. The provisions of this section shall not be applicable in any case where the continuity of the government of a political ,
subdivision or that of any of its elective or appointive officers is i otherwise provided for by or pursuant to law. '
3, . This section shall be construed liberally. The powers ,
herein granted shall be in addition to and not in substitution of ,
any power granted, procedure provaled or provision made in any [
other law.
l Added L.1978, e. 640. I 3.
ut.6 s.d m.6.
streetive oete. section effecthe Apr. T.1979, ;>ureuset to ! 197M, c.
l 640,t 7,
- I l $
m,. , e. .
l Countlee $m21%. P.J M. Counties 4 49, i Stunicipal corseratione $mST, P.J,M, ilunicipal Porpormtletia e list et neq. ;
I t'
I 28. sense sectae.esen of assa.eer ensors cy
- 1. Whenever the governor, on his own initiative or pursuant '
I to a request from one or mere chief executives, finds that a dis. ,
aster has occurred or may be imminent for which local govern.
menta arv unable to respond adequately, he shall declare a disas.
ter emergency by executive order.
- 2. Upon declaration of a disaster arising from a radiological <
accident, the governor or his deslanee shall direct one or more chief executives and emergency services organlaations to:
(a) notify the public that an emergency exists; and (b) take appropriate protective actions pursuant to the radio.
logical emergency preparedness plan approved pursuant to sec. t tions twenty two and twenty three of this article. The gover. s nor, or his designee, shall also have authority to direct that oth. (
or actions be taken by such chief executives purnant to their l authority under section twenty.four of this article,
- 3. The executive order shall include a description of the dis.
aster, and the affected area. Such order or orders shall remain in effect for a period not to exceed six months or until rescinded k by the governor, whichever occurs first. The governor may is. [
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$ 28 EXECUTIVE LAW Art. 2-8 sue additional orders to extend the state disaster emergency for additional periods not to exceed six months.
4, Whenever the governor shall find that a disaster is of such severity and magnitude that effective response is beyond the capabilities of the state and the affected jurisdictions, he shall make an approprute request for federal assistance availa-ble under federallaw, and may make available out of any funds provided under the governmental emergency fund or such other funds as may be available, sufficient funds to provide the re-quired state share of granta made under any federal program for meeting disaster related expenses including those available to individuals and families.
Added L1978, c. 640, l 3; amended L1981, c 709, l 2.
Nieterleal Mete susf. 2. Added Lipt, c. Tm, t 2. Former mutui, s redeslaneted 4.
eff. July 21,121. se H . 4. Formerly 3. redentsnated Former ould 2 rwieslaneted 3, 4, Ll>1, c. TON, 9 2, e f f. J uly 21 suH. 3. Formerly 2, rnlesignated
- 3. Llpl, c. Tm, t 2, eff J uly 21, Effective Date. Aactlun eff.etlie tel. Apr.1,1W79, pursuant to I 1974, c.
m, s 7.
9 28-a. rost disaster recovery pianning
- 1. Whenever a state disaster emergency has been declared any county, city, town or village incleded in such disaster area shall prepare a local recovery and redevelopment plan, unless the legislative body of the municipality shall determine such plan to be unnecessary or impractical. Prior to making such determina.
tion, the municipality shall notify the commission of its intent to forego preparation and provide an opportunity to comment to the commission. Within fifteen days after the declaration of a state disaster, any county, city, town or village included in such disaster area shall report to the commisalon whether the prepa-ration of a recovery and redevelopment plan has been com-menced, and if not, the reasons for rot preparing such plan.
Within sixty days after the declaration of a state disaster, the commission shall report to the governor and the legislature the status of local recovery and redevelopment plans, including the name of any municipality which has failed er refused to com-mence the development of a recovery and redevelopment plan.
- 2. The commission shall provide technical assistance in the development of such plans upon the request of such county, city, town or village. ,
38
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I 28-0 Exscutivs law Art. :-a l A p t, 1,1979, and amended in men. sew. s. FormerlF par (f) deels, tens tvalaning "Any county, etty* nated suhd. A, t.197% c. 641, l 2. eff.
by suhetituting
- preparing" for "re. Apr.1.1979, and amended by insert.
ituired to prepare". **Within elsty days".
SeHt. S le 7. Formerly pate. se) EffeeUve Date. Section effective to (el. deelanated subde. S to 7. re- Apr.1.1979. pursuant to 1.197M. t'.
N*(titely. f.197A. c. 641, 4 2. eff. 640. I 7. .
A pr.1, 1979.
Ubtecy Refotoquees Mtates e m41. P.J.M. Mtates H A 1 %
i 29. Directs of state aseney ssonne la a ds eer en.or.
Se#cy Upon the declaration of a state disaster emergency the gov.
ernor may direct any and all agencies of the state government to provide assistance under the coordination of the disaster pre.
paredness commission. Such state assistance may include: (1) utillaing, lending, or giving to political subdivisions, with or without compensation therefor, equipment, supplies, facilities, services of state personnel, and other resources, other than the i extension of credit; (2) distributing medicine, medical supplies, food and other consumable supplies through any public or pri-vate anney authorized to distribute the same; (3) performing on public or private lands temporary emergency work essential i
for the protection of public health and safety, clearing debris
- and wreckage, making emergency repairs to and temporary re-
! placements of public facilities of political subdivisions damaged or destroyed as a result of such disaster; and (4) making such other use af their facilities, equipment, supplies and personnel
, as may be necessary to asalat in coping with the disaster or any emergency resulting thertfrom.
Added L.1978, c. 640, j 3.
Hieteeisel Note Effeettve Date. 8ntloa effative Apr.1.1979 pursuant to I.1972, c.
sea,1 7.
theocy Refoeeeees States em41. C.J.S. statee H E 1E 1 1 29-m. :=r; + ef .ther inw.
I 1. Subject to the state constitution, the federal constitution and federal statutes and regulations, and after booking the ad.
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o Art. 3 3 DISASTER PREPAC.E Ness i 29 ,
+ vice of the commission, the rovernor may by executive order temporarily suspend specific provisions of any statute, local law, l ordinance, or orders, rules or regulations, or parts thereof, of any t agency during a state disaster emergency, if complir.nce with such provisions would prevent, hinder, or delay action necessary to cope with the disaster.
- 2. Suspensions pursuant to subdivision one of this petion l shall be subject to the following standards and limits: l
- a. no suspension shall be made for a period in excus of thir.
ty days, provided, however, that upon reconstaration of all of the relevant facts and circumstances, the governor may extend l
the suspension for additional periods not to exceed thirty days l each; * '
- b. no suspension shali be made which does not safeguard the '
hulth and welfare of the public and which is not reasonably necessary to the disaster effort; i
- c. any such suspension order shall specify the statute, local i law, ordinance, order, rule or regulation or part thereof to be ;
suspended ar.d the terms and conditions of the suspenston;
- d. the order may provide for such suspension only under <
particular circumstanew, and may provide for the alteration or !
modification of the requirements of such statute, local law, ordi.
l nance, order, rule or regulation suspended, and may include oth. !
er terms and conditions; i
- e. any such suspension order shall provide for the minimu'm deviation from the requirements of the statute, local law, ordi. ,
nance, order, rule or regulation suspended consistent with the I disaster action deemed neensary; and [
- f. when practicable, specialista shall be assigned to assist L with the related emergency actions to avoid needles adverse of. !
facts roeulting from such suspension. ;
- 3. Such suspensions shall be effective from the time and in the manner prescribed in such orders and shall be published as l soon as practicable in the state bulletin.
l
- 4. The legislature may terminate by concurrent ruolution t executive orders issued under this section at any time, l Added I 1978, c. 640, l 3. [
l Histefleel Note l l
Effsetive Dele. Inectica effective i l
Apr,1.1979, pursuant to 1 19Ts. c. l l
seo, i T.
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o LILCO, October 21,1988 :
QRTIFICATE OF SERVICE I L:( i gr ,
,4 ;
in the Matter of 7 LONO ISLAND LIGHTING COMPANY *
(Shoreham Nuclear Power Station, Unit 1) B8 0 25 PS :04
,t Docket No. 50-322 0L l Ulv . -
l DCCM W . n!!
I hereby certify that copies of LILCO'S REPORT TO TifE APPEA'L'b6ARD ON !
l THE PROGRESS AND EFFECT OF THE TOWN OF llEMPSTEAD CASE were served this r date upon the following by telecopter as indicated by one asterisk, hy Federal Express as indicated by two asterisks, or by first-class mall, postage prepaid.
Thomas S. Moore, Chairman
- Mr. Frederick J. Shon !
Atomic Safety Licensing and Atomic Safoty and Licensing I Appeal Board Board i U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commiston ,
East West Towers - Fitth Floor East-West Towers (
4350 East-West Highway 4350 East-West Highway i 1
Bethesda, MD 20814 Bethesda, MD 20814 i i t
Alan S. Rosenthal. Esq.
- Secretary of the Commission Atomic Safety and Licensing Attention Docketing and Service l 1 Appeal Board Section I U.S. Nuclear Regulatory Commission :
U.S. Nuclear Regulatory Commission i East-West Towers - Fitth Floor 1717 H Street. N.W.
4350 East-West Highway Washington, D.C. 20555 I Bethesda, MD 20814
(
Atomic Safety and Licerding l Mr. Howard A. Wilber
- Apptal Board Panel Atomic Safety and Licensing U.S. huclear Regulatory Comtr.ision f 1
Appeal Board Washington, D.C. 20555
} U.S. Nuclear Regulatory Commission
(
i 1 East-West Towers - Fitth Floor Adjudicatory File 4350 East-West Highway Atomic Safety and Licensing [
! Bethesda, MD 20114 Board Panel Docket U.S. Nuclear Regulatory Commiston James P. Gleason Chairman Washington, D.C. 20555
] Atomic Safety and Licensing Board j 513 Gilmoure Drive Edwin J. Reis. Esq.
- i Silver Spring, Maryland 20901 U.S. Nuclear Regulatory Commision 4
I One White Flint North Dr. Jerry R. Kline 11555 Rockville Pike i
Atomic Safety and Licensing Rockville. MD 20852 Board j' U.S. Nuclear Regulatory Commission Herbert li. Brown. Esq.
- East-West Towers Lawrence Coe Lanpher. Esq.
I 4350 East-West Highway Karla J. Letsche. Esq.
3 Bethesda, MD 20814 Kirkpatrick & Lockhart South Lobby 9th Floor l'
1800 M Street. N.W.
Washington, D.C. 20036-5891 i
r-- - - --
e Fabian G. Palomino, Esq.
- Mr. Philip McIntire Richard J. Zahnleuter Esq. Federal Emergency Management Special Counsel to the Governor Agency Executive Chamber 26 Federal Plaza Room 229 New York, New York 10278 :
State Capitol !
Albany, New York 12224 Jonathan D. Feinberg, Esq. I bew York State Department of ;
Alfred L. Nardelli, Esq. Pub!!c Service, Staff Counsel l Assistant Attorney General Three Rockefeller Plaza ;
120 Broadway Albany, New York 12223 i Room 3118 New York, New York 10271 Ms. Nora Bredes l Executive Coordinator L George W. Watson, Esq.
- Shoreham Opponents' Coalition l William R. Cumming Esq. 195 East Main Street Federal Emergency Management Smithtown, New York 11787 Agency 500 C Street, S.W., Room 840 Evan A. Davis, Esq. l Washington, D.C. 20472 Counsel to the Governor :
Executive Chamber '
Mr. Jay Dunkleberger State Capitol i New York State Energy Offlee Albany, New York 12224 Agency Building 2 l Empire State Plaza E. Thomas Boyle Esq. l' Albeny, New Ycrk 12223 Suffolk County Attorney Building 158 North County Complex Stephen B. Latham, Esq. " Veterans Memorla! Highway ;
Twomey, Latham & Shea Hauppauge, New York 11788 33 West Second Street I P.O. Box 298 Dr. Monroe Schneider Riverhead, New York 11901 North Shore Committee i P.O. Box 231 Wading River, NY 11792 i 1
, James N. Chrgtman :
Hunton & Williams [
707 East Main Street P.O. Box 1535 ;
Richmond, Y!rginia 23212 j DATED: October 21,1988
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