ML20207B677
| ML20207B677 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/15/1986 |
| From: | Zahnleuter R NEW YORK, STATE OF |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#386-991 OL-3, NUDOCS 8607180151 | |
| Download: ML20207B677 (10) | |
Text
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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 000 ED BEFORE THE COMMISSION N 16 Ali igo jobf[n[qSfCPg4py In the Matter of C
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL- @ NC I
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
STATE OF NEW YORK RESPONSE TO " RESPONSE OF LONG ISLAND LIGHTING COMPANY TO GOVERNOR CUOMO'S JUNE 30, 1986 ' STATEMENT'"
'l The State of New York hereby responds to LILCO's Response to Governor Cuomo's public statement issued June 30, 1986.
LILCO's Response sets forth the latest permutation of its " realism" argument.
That Response recedes f rom earlier variations of " realism", and it makes clearer than ever before the insubstantiality of LILCO's argument.
LILCO now asserts that the Governor's performance of his legal duties together with the " knowledge and logistic base" provided by LILCO's Plan "is all that is postulated by the ' realism' argument."
Response, p.1 (emphasis supplied).
In short, LILCO asks this Commission to grant a license for Shoreham, merely because there is a State government and a i
I utility plan.
LILCO's request should 1
Similarly, LILCO states that its Plan, which both the State and Suffolk County have disavowed as a basis for any response to a shoreham emergency, is a model that could and would be used "if needed, in coordination with responsible governments in any of a virtually limit less set of feasible combinations of ways and extents."
- Response,
- p. 5.
Quite apart from LILCO's persistent refusal to accept the actual positions of the responsible i
i 86071801S1 860715 PDR ADOCK 05000322-G PDR
I be dismissed out of hand.
That fundamental point aside, LILCO's Response (and its i
earlier Reply to County Executive Cohalan's June 23, 1986 statement) misstates the requirements of state law applicable to j
emergency planning and response.
The basic tenets of New York State law are clear.
First, emergency planning and response involve inherently governmental powers that are at the core of the State's police powers.
See Cuomo v. Long Island Lighting Co., Consol. Ind. No. 84-4615 (N.Y.
Sup.
Ct.,
slip op., February 20, 1985).
Although LILCO's Plan envisioned that LILCO itself would assume those governmetnal powers in the event of a nuclear accident at Shoreham, the New York Supreme Court i
has held that LILCO may not do so.
Given that f act, LILCO has argued that Executive Law, Article 2-B, authorized the Governor (or County Executives) to suspend any state law and to then authorize LILCO to carry out its Plan and perform the governmental functions embraced by it.
See Response, P. 4; LILCO Reply, p.11.
LILCO's argument has three fatal flaws.
First,both the Governor and County Executive Cohalan have independently stated that they would never authorize LILCO to perform governmental functions.
Second, Article 2-B does not authorize t
governments in question, LILCO's reliance on its own vague and 1
meaningless rhetoric about "a virtually limitless set of feasible combinations of ways and means" belies any suggestion that this Commission has before it an identifiable emergency response plan that satisfies its emergency planning standards.
10 C.F.R.
i Section 50.47 (1986).
l
the Governor to suspend state laws in order to delegate the police power to private corporations.
Article 2-B, Section 29-a(1), provides as follows:
Subiect to the state constitution, the federal constitution and federal statutes and regulations, and after seeking the advice-of the commission, the governor may by executive order temporarily suspend specific provisions pf any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster.
(Emphasis I
supplied.)
l The Governor's power to suspend statutes and local laws is subject to state constitutional restrictions.
The New York State l
j Constitution reserves the police power to the State and its duly authorized political subdivisions.
See N.Y.
State Constitution, Articles III, IX (McKinney); Cuomo v. LILCO, supra.
Article 2-B does not authorize the Governor to erase this Constitutional restriction on the exercise of governmental powers or to evade that restriction by suspending statutes, such as the Municipal Home Rule Law, that preclude LILCO's exercise of governmental powers.
Third, LILCO's argument has already been rejected by the New York Supreme Court.
In Cuomo y2 LILCO, LILCO argued that the Governor's power to suspend state statutes under Article 2-B was one potential source of its purported authority to carry out its Plan.
The Court rejected that argument and specifically held 2,
A County Executive's suspensory powers are subject to the i
same limitation.
See Article 2-B, Section 24 (1) (f).
l I
9 y
y
-rm--
3--
a-r e
that any attempt to delegate governmental powers to a private party would be unlawful.
Cuomo y2 LILCO, slip op at 12-13.
Second, LILCO strecces the Governor's emergency response functions under Executive Law, Article 2-B.
Clearly, the Governor has a dominant role in emergency response situations, particulary in cases of radiological accidents.
See N.Y.
Executive Law, Article 2-B, Sections 24(1), 28(2) (McKinney).
In exercising that role, the Governor acts as the elected representative of the people in accordance with his own considered judgment of what is an appropriate governmental response.
The Governor does not act as the submissive handmaiden of private corporations nor is he required to carry out whatever plan LILCO itself chooses to put forward.
LILCO's Response concedes that fundamental fact:
Article 2-B "does not i
f oblige the Governor to use the LILCO plan to any specific extent...."
3 Response, p.4. In the face of this reality, LILCO offers only its " belief" that its " plan and its supporting logistic and personnel base show the way to effective emergency preparedness at Shoreham."
Response, pp. 4-5.
The Governor rejects l
that belief, as his recent statement demonstrates.
- Moreover, LILCO's naked " belief" does not satisfy the basic regulatory requirement that the applicant must submit an offsite plan that complies with the l
Commission's emergency planning standards and that can and will be implemented.
\\
I e
. Finally, LILCO's refer ences to At ticle 2-B are l argely irrelevant to this proceeding.
The State Disaster Preparedness Commission has statutory powers and responsibilities, including the review of disaster preparedness and response plans.
Only one fact is relevant, however:
the DPC has not adopted the LILCO Plan.
Similarly, State and local governments have statutory roles with respect to disaster preparedness and response.
Again, only one fact is relevant: neither the State nor suffolk County are willing to adopt or implement the LILCO Plan, and they have no legal obligation to do so.
Article 2-B does not require State or local governments to assist private corporations in pursuit of their corporate ends nor does Article 2-B require State or local governments to exercise their government powers in the way private corporations direct.
In short, LILCO now cites the existence of State and local governments as the predicate for its " realism" argument.
Reciting the elementary fact that governments exist does not satisfy the NRC's emergency planning regulations any more than did listing treatment facilities in Guard y2 Nuclear Regulatory Commission, I
I i
l
i 753 F. 2d 114 4 (D.C. Ci r.19 85).
LILCO's " realism" argument is frivolous, and it should be rejected by this Commission.
Res ec fully submitted, e_
't 7
' Fabian G. falogino', Esq.
Special Counsel--t'o the Governor
. Richard J.
Zahnleuter, Esq.
Assistant Special Counsel to the Governor Executive Chamber Albany, New York 12224 Dated:
July 15, 1986
i l
C.
00CHETED USNRC i
16 JL 16 4140 UNITED STATES OF AMERICA hhfIC OF Stutt tag y h
C ET ERVICL NUCLEAR REGULATORY COMMISSION B
C BEFORE THE COMMISSION In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
/
(Shoreham Nuclear Power Station,
)
l Unit 1)
)
l Certificate of Service j
i I hereby certify that copies of STATE OF NEW YORK RESPONSE l
TO " RESPONSE OF LONG ISLAND IIGHTING COMPANY TO GOVERNOR CUOMO'S j
JUNE 30, 1986 ' STATEMENT'" bzve been served on the following l
persons, identified by an asterisk, on this 15th day of July 1986 by Federal Express:
- Lando W.
Zech, Jr., Chairman
- William C.
Parler, Esq.
U.S.
Nuclear Regulatory Comm.
General Counsel Room 1113 U.S. Nuclear Regulatory Comm.
1717 H Street, N.W.
10th Floor Washington, DC 20555 1717 H Street, N.W.
Washington, DC 20555 i
i
- Comm. James K.
Asselstine
- Comm. Frederick M.
Bernthal U.S. Nuclear Regulatory Comm.
U.S. Nuclear Regulatory Comm.
Room 1136 Room 1156 1717 H Street, N.W.
1717 H Street, N.W.
l Washington, DC 20555 Washington, DC 20555 l
- Bernard M.
Bordenick, Esq.
- Comm. Thomas M. Roberts
{
U.S. Nuclear Regulatory Comm.
U.S. Nuclear Regulatory Comm.
l 7735 Old Georgetown Road Room 1103 8th Floor, Room 6704 1717 H Street, N.W.
Washington, DC 20555 Washington, DC 20555 e
l Alan S.
Rosenthal, Chairman Stuart Diamond Atomic Safety and Licensing Business / Financial i
Appeal Board NEW YORK TIMES U.S. Nuclear Regulatory Comm.
229 W.
43rd Street i
Washington, DC 20555 New York, NY 10036 I
Mr. Howard A.
Wilber Joel Blau, Esq.
Atomic Safety and Licensing New York Public Service Comm.
Appeal Board The Governor Nelson A.
Rockefeller U.S. Nuclear Regulatory Comm.
Building Washington, DC 20555 Empire State Plaza j
Albany, NY 12223 Mr. Gary J.
Edles Stewart M. Glass, Esq.
Atomic Safety and Licensing Regional Counsel Appeal Board Federal Emergency Management Agency U.S. Nuclear Regulatory Comm.
26 Federal Plaza Washington, DC 20555 New York, NY 10278 Mr. William Rogers Anthony F.
Earley, Esq.
Clerk General Counsel Suffolk County Legislature Long Island Lighting Company Suffolk County Legislature 250 Old Country Road Office Building Mineola, NY 11501 Veterans Memorial Highway Hauppauge, NY 11788 Spence Perry, Esq.
- W. Taylor Reveley, III, Esq.
Associate General Counsel Hunton & Williams Federal Emergency Management P. O. Box 1535 Agency 707 East Main Street Washington, DC 20471 Richmond, VA 23212 Mr. L.
F.
Britt Mr. Jay Dunkleberger Long Island Lighting Company New York State Energy Office Shoreham Nuclear Power Station Agency Building 2 North Country Road Empire State Plaza Wading River, NY 11792 Albany, NY 12223 Ms. Nora Bredes
- Stephen B. Latham, Esq.
Executive Director Twomey, Latham & Shea Shoreham opponents Coalition 33 West Second Street 19b East Main Street Riverhead, NY 11901 Smithtown, NY 11787
- Docketing and Service Section Mary Cu'ndrum, Esq.
Office of the Secretary New York State Department U.S. Nuclear Regulatory Comm.
of Law 1717 H Street, N.W.
2 World Trade Center, Rm. 4614 washington, DC 20555 New York, NY 10047 j o L
i Hon. Peter Cohalan MHB Technical Associates Suffolk County Executive 1723 Hamilton Avenue H.
Lee Dennison Building Suite K Veterans Memorial Highway San Jose, CA 95125 Hauppauge, NY 11788 Dr. Monroe Schneider
- Martin Bradley Ashare, Esq.
North Shore Committee Suffolk County Attorney P. O.
Box 231 Bldg. 158 North County Complex Wading River, NY 11792 Veterans Memorial Highway
- David A.
Brownlee, Esq.
Kirkpatrick & Lockhart
- Lawrence Coe Lanpher, Esq.
1500 Oliver Building Kirkpatrick & Lockhart Pittsburgh, PA 15222 1900 M Street, N.W.
Suite 800 Washington, DC 20036 Atomic Safety and Licensing Appeal Board U.S.
Nuclear Regulatory Comm.
Washington, DC 20555
' /)
/
'd 4
6,
-Richard J.
hn dut'er Assistant Sp al Counsel to the Governor Room 229, Executive Chamber State Capitol Albany, New York 12224 Date:
July 15, 1986
- By Federal Express,