ML20107E887

Forwards Ny Supreme Court 850220 Decision Holding That Util Lacks Legal Authority Under Constitution & Laws of State of Ny to Implement Transition Plan.Related Correspondence

ML20107E887
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/25/1985
From:	Lanpher L KIRKPATRICK & LOCKHART
To:	Kline J, Margulies M, Shon F Atomic Safety and Licensing Board Panel
References
CON-#185-713 OL-3, NUDOCS 8502250840
Download: ML20107E887 (20)

Text

@IEBCORRESPONDENCt.

KIRKPATRICK & LOCKHART 000 METE 0 1900 M STREET, N.W.

USNRC wAsmNGTON, D.C. 20036 ONE BOSTON PLACE nosTON, MA 02:08 TELEPHONE (202) 4524000 to 7)9755400 1428 BRICKILL AVENUE TELECOPIER (202) 4524052 M1AMI, FL 3)til 0 05) 1744 112 0FFfCE OF SEmebruary 25, 1985 "" "V'""*""

00CMETING & SERVICI ""5"" ", r4 n222 BRANCH 44121 H54900 11UTERS DIRECT DIAL NUMBER 202/452-7011 BY HAND Morton B. Margulies, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Docket No. 50-322-OL-3

Dear Members of the Board:

In January 1984, the Licensing Board urged Suffolk-County and the State of New York to obtain a New York State Supreme Court ruling whether LILCO has the legal authority to implement its'" Transition Plan." The State and County filed declaratory judgment actions in March 1984; the Town of Southampton commenced a similar action in May 1984. The three cases were consolidated in August 1984.

On February 21, 1985, the New York State Supreme Court issued a decision holding that LILCO lacks legal authority under the Constitution and laws of the State of New York to implement the Transition Plan. A copy of the court's decision is attached hereto.

Sincerely yours, H^}

Lawrence Coe Lanpher LCL:me Attachment cc: Service List a

D3ol -

' ~

J. a s u . tw . o ., s .3 0 A 3 Jun. 15, 1985 huPREME COURT. suFFOLK COUNTY , .

~ I:Altt o H . CUOMO, By plaintiff, gp,73,pji,J.S.C

( - at',ai n A C-1.'ONC ISI.AND 1.IGILTING C0tlPANY, 11c. fondant . DATED February 20, 1985

........___.---_................g C011t4TY OF SUFFOI.K,

-drdinst- ,

l.o:Mi 1 !!!.ANI) 1,1GitTING COtt['ANY ,

Defendant. ,

TOWN 0l? SOUTilmiPTON , ,

Plaintiff.

.ag,atnst-

• 1,0NG I'S1,AND LIGitTING COMPANY, Defendant. -

._. ______.........._.........- l FAltJ AN C. PALOMINO, ESO., ATTORNEYS FOR DEFENDANT t;pec. Counsol to the Covernor i.ONC IST.AND LICllTING COMPANY:

of Nuw York St.ncu KOSAl.lND M. C0hJON, ESO.

lixecut ive Char.ibers 2500 Old country lloatt '

2 tforict Trado Center Mineola, N.Y. 11501 t:eu York, N. Y. 10047 niul and litiN T O N ts VII.T.I AM!i, F.505.

ItnitF.RT AlitWIS . ESO. 707 E. Main St.

Att.orney C9neral Richmonal, Viry, inia 23219 tty i .l a m e s F.. Farnhnm, F.sq. and

worlil w York, Trmic N. Y.Cont 10047er Kathy F. 11. M.:G1csky, l{na.

! .. - :1.iry it. Cundrum, Esq. Of counsel

!.TT i!!!:KYS FOR COUNTY OF SUFFOLR:

A8:YlN n, ASilAl(E. ESO.

etutan.4 Moriorial liighway II:.ulipuur,u , N .Y . 11788 l'.v : Arleno 11. Lindsay , Esq.

of Counsel and KII(KPATKICK, LOCKilART, JOHNSON &

itHTCllISON , ESQS , -

1500 Oliver Bldg Pittsburgh , . I'a . 15222 15y :

David A. Brownlac, Esq. and Kennoch H. Argentiori, Esq.

• Of Counsel ATTORNEYS. FOR PLAINTIFF TOWN OF SOUTHAMPTON:

TUOMEY , l.ATHAM & SilEA, ESQS. .

33 1.'o nt Second St.

Itiverhund, N. Y. 11901 .

Ity : Stephon B. Latham, Esq. ,

Of Councul ,

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INTRODUCTION f The State of New York (STATE),the County of Suffolk (COUNTY) and the Town of Southampton (TOWN), commenced separate declaratory judg- i mont actions against the Long Island Lighting Company (LILCO), a public l service corporation incorporated pursuant to the laws of the state of '

Nsw York and'primarily ' engaged in the production, distribution and sale of ciectricity on Long Island. These actions arisa from LILCO's attempt to secura approval of its " utility" sponsored offsite emergency "The plaintiffs response seek a plan for its nuclear plant located at Shoreham.

declaration that LILCO does not have the legal authority to carry out.

its plan. ,

. LILCO has moved to dismiss this actionin and ordertheto plaintiffs address have 1

cross-moved for summary judgment. The Court, the 4 issues contained in these motions, must ~ examine the events leading up to

'the commencement of these declaratory judgment actions.

THE ATOMIC ENERGY ACT OF 1954 The Congress of the United states, cognizant of the need for n'cw methods of producing energy, passed the Atomic Energy Act of 1954.

This legislation set forth the authority of the Federal government to negotiate the construction and licensing of nuclear production facilities in the United States (United _St_ates v. City _of_New Yor_k. 463 F.Supp. 604).

The Atomic Energy Commission asc) use designated by the Act Thistowasoversee to be

,the construction and operation of nuclear power plants.

accomplished by a two step licensing procedure. First, the operator of a nuclear plant was required to obtain a construction Second, the permit fromafter.

operator the AEC in order to build a nuclear facility.

completion of the facility,The wasAEC, required in thetolatter secure a license licensing to operate procedure, the plant from the AEC.

was interested mainly in the onsite preparation' for an emorgency.

The licensing and regulating functions of the AEC was trans-ferred to the National Regulatory Commission (NRC) by the Reorganization Act of 1974 (U.S.C. 55841 (f) ).

SHOREHAM t

In 1968 LILCO applied to the AEC for-a permit to construct a'n .

820 megawatt nuclear powered electric generating facility on property State located of at shoreham in the Town of Brookhaven, County of SuffolkT New York.

as.the.Lloyd Harbor Study Group. The latter was permitted to intervene and cross-examine LILCO's witnesses at hearings before the AEC.

None of the plaintiffs herein were parties to the permitCounty appli-cation proceedings. However, the late H. Lee Dennison, suffolk Executive at the time, made a limited appearance before the licensing board in 1970 and spoke in favor of the issuance of a construction permit

-1 i

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l Construction ?armit Hearings, Transcript 209, 211, 216, 1970). The permit to construct a nuclear facility at Shoreham was issued by the AEC I

in 1973). - i The approval of the Shoreham construction permit was the catalyst for the issuance of an order by the Suffolk County Executive to

- thu appropriate COUNTY department to develop a " Response Plan for Major Hadiation Incidents". In 1975, representatives from LILCO and the COUNTY held a series of meetings in order to define the emergency planning role i for each of them in the event of a major radiological accident at shoreham.

These conferences culminated in the development of a plan known as "Suffolk ,

County's General Radiation Emergency Plan". The latter was approved by the Suffolk County Executive on August 30, 1978.

THREE MILE ISLAND The accident at the Three Mile Island Nuclear facility (TMI) st.Harrisburg, Pennsylvania in March 1979, demonstrated the need for im-proving the planning for radiological emergencies. The NRC, prior to the i TMI accident did not condition issuance of an operating license.for a i nuclear plant upon the existence of an adequate offsite emergency plan.

The TMI accident focuse.d attention on the fact that nuclear accidenta i

may andanger surrounding communities and require the mass evacuation of puuple in those communities, Congress, in response to the events which occurrad at THI, determined that no nuclear plant should be licensed to operate unless an adequate emorgency plan could be drawn up and implemented for the staa surrounding the nuclear facility and passed the NRC Authorization Act l

of 1980.

The NRC, in implementing the policy ex ressed by Congrees, promulgated a number of regulations which includ d the mandatory submis-sion of an adequate radiological emergency response plan (RERP) by an opplicant desirous of operating a nuclear power plant. The RERP must des cribe in detail how nuclear emergencies will be handled within a ten mile radius plume. exposure pathway emergency. planning zone (EPZ and also within a fifty mile radius food inges' tion pathway An (45operating Fed, JRe license

. 55, 402is August 19 1980 and 10 C.F;R. $50.33(g) 1984) .

issued only if the NRC finds that there is a reasonable noeurance that adequate protective measures can be taken to protect the area surrounding the nuclear facility in the avant of a radiological emergency ( 10 C.F.R. 650.47(a)(1)1984).

FROM PROTAGONIST TO ANTAGONIST A careful atudy of the NRC regulations indicates that the cmcrgency plans such as RERF, which were to be submitted by licensing applicants,would probably have some imput by those governmental units having jurisdiction over the area to be evacuatud in the event of a The " Memorandum of Understanding" si ency.V. N.

nuclear emergn Klein and LILCO on December 28,197gned and he approval by Cou 1

Executive Jo 2-

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e of the terms of said agrowment by the County Executive Elect, Potor F.

Cohalan, givos crodonce to this analysis of the NRC regulations (see lettor from John V. N. Klein to Ira Freilichor, Vice Pro 81 dent of LILCO, anted December 31, 1979).

A numbur of discussions took placo between LILCO and COUNTY representativos between 1980 and 1981 for the purpose of determini"5 the best means of developing an acceptable RERP. These discussions led to the signing of a contract between LILCO and the COUNTY on March 15, 1981. The 1 COUNTY agreed to develop an emergency plan and LILCO in turn consented to paying the projected S245.000.00 cost of preparing the plan. Thw' County  !

Legislature, in September 1981, approved the terms of the agreomont and

1,1LCO advancud $150,00000 as the first installment on tha pnyment of

$245,300.00. The latter was to be paid in full on March 18, 1982, the schuduled completion dat'o of the PLAN, i

on February 19, 1982, the COUNTY advised LILCO that the $150,000.0t advancement would be roturned because of the "amparent conflict of interest" in the acceptance of any funds from LILCO for t5m purpose of preparing an emergency plan (see lettor dated February 19, 1982 from T.ve 8. Koppelman, 4

Director of Planning for Suffolk County to LILCO). On March 23, 1982 the Suffolk County Legislature passed a resolution authorizing the Suffolk Cbunty Planning Department to prepara a new emergency plan which wee to bs submitted to the Legislature for its consideration (Resolution 262-1982).

- On February 19, 1982, the COUNTY advised LILCO that the S150,000,0C adva'ncoment would be returned because of the " apparent conflict of interes't" in..the acceptanco of any funds from LILCO f'o r the purpose of preparing an emergency plan (see letter dated February 19, 1982 from Lee E. Koppelman, l

- Director of Planning for Suffolk County,toLILCO). On March 23, 1982 the Suffolk County Legisinture passed a resolution authorizing the Suffolk County Planning Department to prepare a new emergency plan which was to be submitted to the Legislature for its consideration (Resolution 262-1982)

The Planning Department, in accordance with the T.egislative directivu, submitted a RERP in December 1982. A number of public hearinge were hold by the Legislature to codsider the PLAN in January, 1983. The Legislature, with the concurrence of the County Executive, Peter F. Cohalan, The decided not to approve, adoDt or implement any RERP for Shoreham.

reason given for this action was that ...

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" [Since) no local radiological emergency response plan for l

a serious nuclear accident at Shoreham.will protect the ,

' health, welfare, and safety of Suffolk County residente,

. . . . the County's radiological emergency planning process is hereby terminated, and no local radiological emergency plan for response to an accident at the Shoreham plant shall be adopted or implemented . . .

. . . [S] inca no radiological amargency plan can protect the health, welfare, and safety of-suffolk County resi-dents and, since no radiological emergency plan shall be adopted or implemented by Suffolk County, the County l

Executive is hereby directed to assure that actions taken

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, be it State or Federal, by any other governmental agenc"are consistent with the decIsio lution."

. (Resolution 111-1983). ,

The Governor of New York, after reviewing the results of a i

study by the Marburger Commission, an independent committee announced thatappointed no I by the Governor to study the Shoreham situation,d by the STATE.

RERP for Shoreham would be adopted or implementa t

THE LILCO TRANSITION PLAN LILCO, interpreting the COUNTY's refusal to adopt a plan as a darogation of its responisbility under Article 23The of thePLANNew hasYork been ExecQ-desig- -

tive Law, submitted its own plan to the (PLAN)

NRC.

nated "The Lilco Transition Plan".

j The PLAN describes in detail the actions which LILCO proposes to take in the event of a radiological emergency at the One volume Shoreham is entitled facility.

"Shoreham l The Nucluar PLAN is contained Power Station - in four Offsite Local volumes. Radiological Emergency Response Plan". Two volumes are entitled "Offsite Radiological Emerge

- Plan".

liighlights of the PLAN which would be utilized in the event of -

.'a radiological accident may be out lined as follows:

1. The organization which is primarily responsible for'imple-i menting the PLAN is known as the Local Emergency Response Organisation 4

This group is composed of over 1,300 LILCO employees and con-(LE110) .

Multants.

2. The Director of LERO, a LILCO employee, would have the primar) He .

responsibility for.che coordination and implementation of the PLAN.

would make certain that the following mentioned functions would be carried out in.the event of a nuclear accident at Shoreham.

' 3. Assessment of the severity of the nuclear accident.

i

- 4. Determination of the action to be taken in order to protect

' the public.

5. The declaration of an emergency.

6. Notification of the -public by the following methods:

a) The activation of 89 fixed sirens. Broadcast b) _The transmittal of messages on an Emergency System (EBS). . .

c) Tho transmittal of signals on tone alert radios. ,

7. The instruction of the public by means of EBS messages as to protective measurcs to be taken, including selective and general evacuation of the EPZ.

8. Implementation of traffic control measures in order to evacuate the.public along specified routes. These measures include the following:

a) The conversion of a two mile starch of a two-way road

- into a one-way road, b) The placement of roadblocks to cordon off the immediate plant area, c) The placoment of 193 traffic guides at 147 traffic control points throughout the EPZ. These traffic guideo, by the utilization of cones and hand signals, will channel traffic along the designated evacuation routes and discourage traffic from pro-ceeding along different routes, d) The placement of LILCO vehicles, cones and flares in the traffic lanes before certain entrance ramps on four evacuation routes to cause traffic to move into adjoining lanes in order to permit the continuous

- flow of traffic onto the routes from such ramps.

s) The authorization of the use of road shoulders and the creation of lanes for turnpockets.

9. The erection of permanent trailblazer signs along all avacuntion routen.

10. The removal of stalled cars and other obstacles from the roadway by tow trucks.

11. The formulation of protective action recommendations which are r.o bo broadcast to the public present in the ingestion exposure path-way. Those recommendations may include the follouing:

a) The placement of' dairy animals on stored feed.

b) The removal of dairy animale from contaminated fields to-shelters.

c) The withholding of foodstuffs and milk from the market, d) The change from the production of fluid milk to the.

. production of dry whole milk.

e) The washing or scrubbing of fruits and vegetables prion to consumption.

f) The suspension of fishing operations.

12. The making of decisions and recommendations with referonce to recovery and re-entry to the EPZ after a nuclear accident.

-5,

Tile CATALYST FOR THE INSTANT PROCEEDING The Atomic Safety and Licensins Board (ASLB), an administrative

- panel of the NRC, has been and still is in the pr6 cess of conducting hear-

. ings to determine if the plan complies with NRC standards and is capable of being implemented.

LILCO has represented to the NRC that it may lawfully implenent its PLAN and that neither State por Federal law prevent LILCO from perform-The STATE, COUNTY and TONN have ing the functions described therein. )

i advised the NRC that LILCO lacks the legal suthority to carry out its plan.

These governmental bodies have filed ten " legal contentions" with the ASLB setting forth their positions on the lack of legal authority by LILCO to implement its PLAN.

The Federal Emergency Management Agency (FEMA), the Federal has advised the ASLB that body' charged with the initial reviews of RERPS,be implemented until the it cannot determine whether the LILCO PLAN can i

1cgal authority issue has been resolved (see Letter of Richard W. Kreiner, Assistant Associate Director, Division of Emorgency Preparedness and Eng,ineering Response , NRC) .

The Chairman of the ASLB, after listening to all sides and considering FEMA's views, determined that the ten legal concentions filed by the plaintiffs herein present issues of New York State Law and he urged the parties to get a resolution in the State Courts (Transcript ASLB January 27, 1984 p. 3675). .

On March 7, 1984, separate actions sacking a declaration that LII.CO did not have legal authority to execute its PLAN was commenced by The COUNTY's the STATE and COUNTY in the New York State Supreme Courts.

complaint alleges that LILCO's implementation of its PLAN would be The unlaw-ful, illegal and a usurpation of the police pou. ors of the STATE.

COUNTY specifically mentioned that the execution of the PLAN would violate the New York State Constitution, the Municipal Home Rule Law and the Exocutive Law. The STATE similarly alleged that LILCO In is precluded addition, the from STATE exurcising the functions mentioned in the PLAN.

cited that the implemuntation of the thePLAN would Business be violative Corporations Law,of the the Vehicle ,

Transportation Corporations Law, and Traffic Law, the Public' Health Law, the Agricultural and Markers Law and the Penal Code.

LILCO did not serve an answer but immediately moved to dismiss the actions on the grounds that the Court did not have subject matter jurisdiction and the complaints fail to state a cause of action.

LILCO, before any action 'could be taken with reference to its motion, removed the declaratory judgment actions to the Federal District Court in April 1983. It claimed that the challenge to its legal authority-presented a question of federal law that was within the original juris-dienian of the federal courts. The STATE and COUNTY filed motionsThe for a remand of their actions back to the New York State Supreme Court.

l Pcdural Diatrict Court ruled that LILCO's federal law claims and its invoca-i

-6,

i tion of the federal preemption orgument constituted affirmativa defenses 2 that could be raised in a state court proceeding (Cuomo v. Lilco County

' of Suffolk v. Lileo; Nos. CV-84 1218, CV-84-1405. EU N.Y., June 15, 1984).

On August 14, 1984, the STATE and COUNTY actione were consolidated in this Court with a similar. action for declaratory judgment commenced by the TOWN in.May 1984.

l LILCO renewed its motion to dismiss the complaints on the  !

l grounds that this Court does not have subject matter jurisdiction because l

no jupciciable controversy is present and the complaints fail to state a cause of action. ,

4 l ,

-JUSTICIABLE CONTROVERSY?

l LILCO maintains that no real dispute exists concerning its legal authority to act in the event of an emergency because the plaintiffs' complaints.are based upon a " hypothetical scenario" that will never occur.

That " hypothetical scenario", according to LILCO is that the utility alone l

l will respond to a radiological emergency at Shoreham. LILCO boldly pro-claims that "in fact New York and Suffolk County would respond in the

' cvent of an actual emergency at Shoreham" and thus the " hypothetical scanario" in the complaint that "Lilco alone would perform the contested

, activities" is moot.

LILCO's characterization of the complaints se being based on a

~

l

! hypothetical scenario is without any basis in fact and can only be attri-

! buted to "uishful thinking". One does not have to be a genius to ascer -

tain'that the issue presented by these actione.in the legal authority of LILCO to execute the PLAN and not whether the STATE or COUNTY will or will not respond to a radiological emergency at Shoreham. ,

What constitutes a justiciable controversy? The necuesary

' clements of a justiciable controvery. are a legally protected interest and a present dispute (Davis Construction Corp. v. County of Suffolk, 312 Misc.2d 652, 447 N.Y 5.2d 355, aff'd. 95 A.D.2d 819, 464 N.Y.S~.2d Nassau County v.

519s Board 38 A.D.2d of Co-Operative ^

267, 325 N.Y.S3 Educational d 955.Services, ~These eTEments are present in G_oldin, l

I the instant matter.

The plaintiffs have an interest in insuring that LILCO their governmental powere are not usurped by a private corporation.

claims that it has a right to exercise the functions mentioned in the How can anyone say that a bona fide controvercy does not exist?

i PLAN.

The Court is of the opinion that the declaratory judgment action is the boat vehicle to solve the controversy herein as attested to by th's following language of the Court of Appeals in the case of New York Public Interunt Research Group, Inc. v. Carey, 42 N.Y.2d 527, 399 N'.Y.S.2d 621 at page 623:

4

"...The need for judicini intervention is obvious when, because of the actions of one of the parties, a dispute arises as to whether there has been a broach of duty or i

violation of the law. Then the courts can declara the

' rights and obligations of the parties, and if a breach is found, compel compliance, award damages or otherwise order appropriate action to be taken.

t' M

____m __

That is tho traditional, but not tha only way in which a gonuine legal dispute may arise or be resolved by the courts. For instance, when a party contemplates taking certain action a genuine dispued may arise before any breach or violation has occurred and before there is any need or right to resort'to coercive measuras. In such a case all that may be required to insure compliance with the law is for the courts to declare the rights and obligations of the parties so that they may act accord-ingly. That is the theory of the declaratory judgment actions authorized by CPLR 3001 (Jamra.v. Alderten Dock Yneda, 256 N.Y. 298, 176 N.E. 401: Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3001, pp. 355 357: 3 Weinstein Korn Hiller. N.Y. Civ.Prac.,

par. 3001.02: Borchard Declaratory Judgments, 9 Brooklyn L Rev., pp.1 3). l The controversy concerning LILCO's legal authority to implement its PLAN is real and present. Resolution of the dispute will determine what the police powers of the STATE entail and if those powers have beenTh usurped by LILCO s PLAN.

m2nt the PLAN will have a significant The interests bearing of onthe its application parties are for clearly an operating ct stake inlicense at Shoreham.The Court can not envision a better example this proceeding.

of a justiciable controversy which is ripe for a judicial determination in a declaratory judgment action.

Tile ISSUE LILCO, as previously mentioned, moved to dismiss the complaints to Section 3211(a)(7) of the CPLRLILCO on the ground that the com-pursunnt "

contends that (1) New plaints fail to state a cause of action. York law does not prohibit it from pe the complainesi and (2) if state laws "were construed as plaintiffs allege, they would be preempted under the Supremacy Clause of the United

" States Constitution and by federal statues and regulations."

- The Court, at the behest of the parties, issued an order dated October 4, 1984 which limited the issue to be decided to that of LILCO's legal York.

authority to implement its PLAN under the laws of the affidavits, the PLAN, voluminous briefs and arguments before the Court, documents and there is no need to hold a hearing as none of the material facts are in dispute.

A: synopsis of the posture of the case to be decided by the Court l sud the issue involved is described'as follows:

{ LILCO, in order to obtain a license to operate its Shoreham l

l facility, must submit a plan for responding to a radiological accident LILCO I

which the NRC finds is adequate and capable of being implemented.

has submitted a PLAN to deal with a radiological emergency at Shoreham.h

-The plaintiffs have challenged LILCO's legal capabilities to perform t e l

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functions contained in the PLAN and maintain that the PLAN amounts to a usurpation of the STATE's police powers. The proposed functions are Tha undisputed and set forth at great length in LILCO's four volume PLAN.

legality of LILCO's performance of these functions under the lave of the State of New York is be' fore this Court for a resolution.

THE POSITIONS LILCO's basic premise for its view that it has a right to impleme'nt the PLAN under the laws of the State of New Yoth is found in the following statement contained in the PLAN at P 1.4-1.8

"(N)othing in New York State law prevents the utility l from performing- the necessary functions to protect the  ;

public. To the contrary, Article 2-B o'f New York Stata l

Executive Law, Sec. 20.1.e makes it the policy of the State that State and local plans, organization arrangements, and responso capability "be the most effective that current circumstanes and existing resources allow." "

This argument has been succintly advanced by counsel for LILCO in his statements before this Court on January 15, 1985 and transcribed at pages 26 and 27 of the minutes in the following concies mannort "Under the LILCO view, a8 a private citizen or as a corporate citizen, any action that I want to take of any type that is -

not prohibited by law, or that does not threaten the health of one of my fellow citizens, unless that action is expressly prohibited by State law, that I've got a right to do it.

That's part of my rights as a citizen of this country, and if I were a citizen of New York, it's part of my rights under the New York constitution."

LILCO, in addition to this argument, also maintains that its activities under the PLAN do not amount to an exercise of polica power.

It bases its contention on two grounds. First, the PLAN "does not propose to, and will not, use force or the threat of force to compol obedience to anyone or anything." Second, the essence of the STATE's police power is " regulation" and the ability "to incarcerate persons who engage in pro-hibited activity" and LILCO is simply " planning for and responding to a radiological emergency" and "not regulating an emergency response."

The plaintiffs' argument is rather simple. They maintain that l

the activities which are to be performed by LILCO employees as delineated in the PLAN are governmental functions and amount to a usurpation of the i

STATE's police power and thus is prohibited under New York State Law.

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1 s

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l THE STATE'S POLICE POWER

' A resolution of the controversy herein necessarily involves a discussion of the sourge, nature and exercise of the police power of the

. STATE.

(a) THE SOURCE In our system of government, the police power is an inherent attribute and parogative of state sovereignty (Teeval Co. v. Stern, The Tenth Amendement to the 301 N.Y. 346.ofCert.

Constitution den. 340 the United U.s. 876).

States specifically provides that the exercise of the police power for the general welfare of the public is e right reserved to the States (Brown v. Brannon, 399 F. Supp, 133, aff'd, 535 F 2d 1249). This principle has been effirmed by our Courts aven before the turn l of the 1900's (See Nunn v. People of Illinois, 94 U.S. 113). _

(b) THE NATURE One cannot deny that the police power is the STATE's most Nor essen-tial power (People v. Bibbia, 262 N.Y. 259, aff'd, 291 U.S. 502) .the pr can one dis 1ute that unquestiona31y at the core of the STATE's police power (Kelly v. Jo 425 U.S. 238).

protection of the public health and safety is one of the acknowledged pur-poses of the police power of the STATE (Adler v. Deegan, 251 N.Y. 467, Yonkers Community Development Agency v. Rorris, 37 N.Y~.2d 478, 373 N.Y.S.2d 112).

(c)_ THE EXERCISE Who may exercise these police powers? Does a governmental sub-division such as a county or town have an inherent right to exercise these powers? Does a corporate entity such as LILCO have an inherent right to' exercise these police powers?

The acceptance of the cardinal rule, that the police power is an inherent perogative of the STATE, can only lead to the conclusion that this power can only be oxercised by the STATE or by governmental subdivisions In fact, upon whom the State constitution or State laws confar such power.

- municipal corporations, who are creatures of state law and whose sole purpose is to perform governmental functions, have no inherent autho to exercise police powers.

the police 7ower which the State Constitution or the State Legis1s;ure con-fers upon t aem (Rocheste.r_ v. Public Service Coppission,192 Misc. 3 83 N.Y.S.2d 436, aff'd. 17 A.D.

people ex rel Elkind v. Rosenblum, '184 Misc. 916, 54 N.Y.S.2d eff'd.

76T T.V. 859, 56 N.Y.S.23 5Z6). ,

POLICE POWER = POLICE POWER '

indicates A brief study of the PLAN, as outlined by this Court,  :

the basic activities LILCO intends to perform in the event of a radiolocica accident at Shoreham.'

.w-. _ , , - , , . - , , .y m m, , _ . - , , . , o _,

' It intends to declare an emergency and advise citizens of the steps they should take to protect themselves. LILCO intendsItto intende manage to a major, full-scale evacuation of a 160 square mile araa.

close public highways, ro-route traffic and direct the. flow of traffic.

The utility intends to decide upon and overseo steps to secure public health within a fifty mile radius of the nuclear facility. LILCO It intends intends to overseo evacuation centers for more than 100,000 people.

to decide when and in what fashion cititens may return to their homes.

in previously contaminated arcas.

I,ILCO maintains.that theso actions do not involve governmental functions and that its proposed " management" of the evacuation of the residents of Suffolk County would not involve an exercise of the STATR's police'pnwer. What is the basis of LII.CO's assertion?

Two reasons are advanced by LILCO for its stance. First, LILCO does not proposw to use force or the threat of force to compel obedience to its recommendations. Second, the essence of the STATR's police pouer is twsulation and the ability to incarcerate persona who engage in pro-hibituc' activity. LILCO is merely planning for and responding to a radio-logical emergency in carrying out the functions in the PLAN and not regu-lating an cmergency response.

The position taken by LILCO is untenable. The fact that LILCO will not issue traffic tickets or arrest someone is of little significance.

The exercise of governmental functions does not necessarily require the ..

imposition of penalties as indicated by the following language in the caso of Branden Shores. Inc. v. ~ Incorporated Village of Greenwood Lake, _

68 Misc.2d 343, 3257CY.S.2d 957 at page 960:

"The term " police power" has often been definod se that power vcstod in the Legislature to mako, ordain and ostablish all manner of wholesome and reasonable lawn, statutes and ordinances, with penalties or without not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of subjects of the same. Whatever affects the peace, good order, morals and health of the' community comen within its scope." -

l Furthermore, the bold statement that the PLAN is devoid of any coercion is incorrect. Does t,urning a two-way street into a one way street leave motorists free to drive as and where they wish? Likewise, does parking LILCO vehicles in traffic lanes on the Long Island Expressway in critical locations afford motorists a freedom of choice? Is a motorist thus compelled to travel in accordance its with theofroute doclaration an set out in and emergency the PLAN 7 Does LILCO REALLY believe that j evacuation on the emergency broadcast channel is any less compulsive because the directive will not be enforced by a threat of incarecration?

LILCO's regulation theory is likewise uithout merie. It claims that its own actions do f6r of " planning" not and"re respondina" "gulate cmorgency responsas" to a radiological emergency. but ra consist

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

i.1N:0 In " planning" for a raslin1.nnical cmorp.ency won 11 inIn. ."rcoponsting" f r. . . b si .

performing functions that are governmental in naturo.

- to a radiological cmargency, the utility would undertake to perform acci-vitics that are roscrved to the STATE and its pplicient nubdivisions. .

In fact, the Courts of the Stato have recor.nized that the func-tions LILCO intends to petform fall within the STATE's historic police power. Scu, eg. Yonkers Community Developmont Agency v. Morris. 37 N.Y.2d 478, 373 N.Y.S.2d 112 (1975), app. dismissed, safoty423 andICS. 101'0~Tr075)

(matters' concerning the public acalth, Rosasco, 159 Misc.

wolfaro 236, 287 are within the N.Y.S. 692 Sente's police poucr): Royce v.

(1936) (abatcment of public emergonc?.es is within State's police powcr) .

People v. Bielmeyer, 54 Misc.2d 466, 468-69, 282 N.Y S.2d 797 (1967)

("It has long been recognised that the power to regulate and control che use of public ronds and highways is primarily the exclusive prorogative of the Sentes."): To_rnado Industries, Inc. v. Town. Board of Oyster Bay,. -~

187 N.Y.5,2d 794City (1959 )~ (control of traffic is a mattcr within the polico power): of _Qtien v. Water Pollution Control nonrd, 6 App.Div.2i 340, 177 N.Y S.2d 47 (1955), aff"d.', 5 N.Y. 2d 164, 182 N.Y.s.2d 584 (1959) generally,

-(control of water pollution is within the public power): Sec N.Y. Const. Art. I, sec. 6, notes 681-009 (McKinnoy)).

tio omount of semantics can change the true meaninn of the activities which LILCO proposes No amount to ofperform ink canincover the ovent up orofblot n vndiological out the fact accirient at Shorcham.

T.IT.c0's " intended funecions" are inborently novernmental in nature rhnt and fall clearly within the ambit of the STATE's police powor.

THE DELEGATION OP POLLCis PUwill(S lions LILCO have any statutory authority to excrcise thu functione 11 ave How are the STATE's police powers elelennted?

cent.nined in the PLAN 7 any of t,bc><c poucrs been delegated to LILC07 (a) TO LOCAL COVERNMENTS

- The COUNTY, TOWN and other local governmental subdivisions have been dologated "noarly the full monsura of the STATE's polico power by -

the State Constitution and various Stato statutos" 2 of(llectzer the Rcwv.York CountyArticle 9 of Eric, 497 Supp. 1207). Section State Co33citution is the primary source for the Soction authority 10.la(12) of theof local governments Municipal llama to exercise the police power.

l Rulu Law ewpressly delegates police power to governmental unita by . con-ferring autSority upon them to " provide for the well-being of personsThu nr property thornin."in of themselves , authorize the COUNTY and TOWN to exerc police power.

Ib) TO PRIVATE CORPORATIONS The Court h'as been unable to find anyLILCG provisions or anyin other the State private Constitution or State statutes which authorize corporation to exercise any portion of the STATE's polica power.

l In fact, any attempted dologation of p0 lice power to L1LC0 would amount l

l

to an' unlawful delegation of governmental powSrs (Sem 2_0 N.Y. Jur. 2d,

" Constitutional Lau"'$183). A governmental unit con not bargain away its police power to a private party or organization (Beacon _Syr_acuse Covernmental functione Associates v. City of Syracuse, 560 F. Supp. 188).

and responsibilities cannot be surrendered by contract where police power, public safety and welf are are involved (Patrolmen's Bonevolont Ass'n.

v. City of Neb York, 59 Mise.2d 556, 299 N.Y.S'.2d 986),

CORPORATE POWERS LILCO is nothing more than a creature of the STATE. Corporations, unliko natural porsons, possess only those powers that have been conferred upon them by the state of their incorporation (14 N.Y. Jur. 2d " Business Rslationships, 5340). Corporate powers do not exist merely because they are not expressly prohibited. A valid basis must be demonstrated for the oxistence of a claimed contested power under the laws of the state under which the corporation has been created. (See 6 Fletche_r,__ Cyclopedia of Corporations $ 24_7_6_ _- 2_48 6, Rev. P_erm. ed. 1979).

The express powers which LILCO possesses are set forth in Section 11 of the New York State Transportation CorporationsWhat Lawexpress and Sec-tion 202 of the New York State Business Corporation Law.

powers does LILCO have as a direct result of these statutes?

Section 11 of the Transportation Corporation Law grants electric corporations and gas and electric corporations the power to generate, ac-quire and supply electricityIn for heat addition, suchorcorporations power to light are public streets, cmpowered to places and buildings.

acquire and dispose of necessary machines and to transmic Such and distribute corpora-electricity through suitable wires and other conductors.

tions can use streets, public parks and public places to place their pcios, only with the consent of the municipal authori-pipes ties.

and fixtures, butThose corporations also havo power to acquire real estate, for corporate purposes, but only in the manner presc'ribed by the eminent domain procedure law. Thus, even in areas necessary to the conduct of their businessos, utilities can act only under express legislative grants of pouer and with the consent of municipalities.

Section 202 of the Busineaa Corporation Lau eets forth sixteen general powers which are common to all corporations For example,incorporated the power to pursuant sue and to the laws of the State of New York.

be sued, to hold property and to make contracts.

Thus none of these express powers bestow upon LILc0 the authorisy to implement its PLAN.

Nevertheless, LILCO is undaunted by its inability to point to a specific grant of power in either the Transportation Corpora-tions Law or the Business Corporation Law which would lend credence to its claimed authority to implement the PLAN. Instead, LILCO seeks to rely on

" implied powers" which oxisted at common law and isThe now codified latter in Suc-provides

. tion 202 (a)(16) of the Business Corporation Law. to effect its that a corporation has " "all powers necessary or convenientLILCO states that corporate purposes,to create and sell electricity and thus it has the power to build or oper-are a power plant such as Shoreham. The operation of Shoreham, according to

LILCd, is conditioned upon the existence of an adaquete offsite emergency plan. Thus LILCO reasons that it has the implied power to implement the I

PLAN in furthorance of its corporate powers. '

t LILCO's view of the scope of implied corporate pouer has no Furthermore, it has no support in the casos which LILCO hns put forth as supporting its theories. For example, it cites the following l limit.

l four cases w3ich holdi l 1. That a corporation has implied power to make charitable contributions for the benefit of the corporation and its employees

- (Steinway v. Steinway & Sons ,17 Misc. 43, 40 N.Y.S. 718) .

2. Thar a corporation operating a home.for persons 60 years or older has the implied power to admit a 59 year old (In Re He_i;ms Estate, 166 Misc. 931, 3 N.Y.S.2d 134, aff'd. 255 A.D.1007, 8 N.Y.5.2d 574) . ,

i 3

That a construction company may also perform related professional engineering services (John B. Waldbillina, In_c. v. Gottfried, 22 A.D.2d 997, 254 N.Y.S.2d 924, aff'd. 16 N.Y.2d 773, 262 N.Y.S.2d 498). t' l

4 That a corporation may make paymento under a "non-compete agreement, provided such payments do not constitute a prohibited restraint of trade (Leslie v. Lorillard, 110 N.Y. 519).

This' Court can not fathom how LILCO expects to support its claim ,,

of authority to declare an emergency and assume responsibility for the evacuation of over 10,000 people on the basis of these cited esses, 1,ikewise, the Court is at a loss for LILCO's reliance upon Co. of Philadelphia v. a 1901 case, City Trust Safe Deposit and Surety 1004'for the proposition Wilson Manufacturing Co., 38 A.D. 2/17~l3 N.Y.S.

that "ittheispowers within difficultof atocorporation."

say in any given case that a business act is notIron Defendant, a West Virginia not avon involve New York State Corporate Law.

corporation, It sought to avoid an indemnity agreement The prev

. but it failed to offer any evidence as to the West Virginia Laws. abse court held that, contractual obligation.

- Does LILCO sincerely believe that a judge writing a decision in 1901 tion of woulda publichave considered emergency constituted that athe direction

" business of as act" traffic or the the term was decla employed in the Ci_ty Trust case?

the power to undertake actions LILCO is mistaken in its view thatto effect its corporate purposes has no necessary or convenient which are contrary to public policy 330 (state of New30Yo_rk N.Y.2d 927,.aff'd. N.Y.2dv.

Information Agency, Inc., 37 A.D.2d 142,The implemntation of the PLAN amounts 779. 339 N.Y.S.2d 1/4). .

g

l@ -

4 exerhiseofthepolicepower. The latter can only be exercised by tha-STATE and upon proper delegation, the municipalities. The exercise of such

- power by LII.C0 would accordingly violate the public policy of this state.

7 THE EXECUTIVE LAW 4 ARTICLE 21--- ',

t i

LILCO claims that the activity which it proposes to take under its PLAN is directly supported by New York State Executive Law, Article'28.

This Ipu is entitled " State and Local Natural and Man-Made Disaster Pre-paredness" and is found in Sections 20 - 29 of the Executive Law.

i I What was the intention of the Legislature in enacting this law?

What does the law provide. '

F Article 2B of the Executive Lau involves tho distribution It clearlyof powers hold by the Executive Branch of State Government.

expresses the intention of the Logislature to confer the STATE's power to i plan for and to It respond to disaster establiches a situatione framowork for statesol'ely and upon local State and local co-operation government.

in planning and preparing for emergency responses to all kinda of disasters, including nuclear accidents. Thus, this Statute creates a state agency,

.the Disaster Praparedness Commission (DPC) to coordinate state and local

emergency responses. This legislation authorizes each county and city to plan for disasters and delegates authority to STATE and local officials to %ffectuate those functions.

The Court, no matter how many times it has read and ra-read Articic 2B, could not find any authorization for LILCO, express or What implied, is to' exercise the STATE's police powers in emergency situations.

tho ' basis of LILCO's claim that Article

• 2B of the Executive Law authorizes it to implomant its PLAN 7 LILCO rests its claim of authority upon two sub-paragraphs, Section 20-1(a) and Section 20-1(e) contained in the statement of policy that constitutes the preface to Article 28. Section 20 of Article 2B of the Executive Law providea se fdllows:

l

"$20. Natural and , man-mada disasters: policy, definitions

1. It shall be the policy of the state that:

a. locci f,overnment and emergency service orSanisations continue their essential role as the first line of defense in times of disaster, and that the state provide appro- -

f priato supportive services to the extent necessary

b. local chief executives take an active and personal role in the development and implementation of disaster prepared-noss programs and be vested with authority and responsibil-icy in order to insure the success of auch programs:

c. state and local natural l dinsster and emergency response functions be coordinated in ^cier to bring the fulleet pro-tection and' benefit to the vet >1e>

- -g y yw,yr*,W ---W --d s- y e v-

p3

d. state resources be organized and propered for immad- ,

inte effective response to disasters which are beyond 3

the capability of local governmente and emergency ' service organization,en and l state and local plans, organizational arrangements, e.

and response capability required to execute che provisions of this article shell be the most effective that current circumstances and existing resources allow.

2, As used in this article the following terms shall have the following meanings:

a. " disaster" means occurrence or imminent threat of wide i

- spread or severe damage, injury, or loss of life or property resulting from any natural or man-made causes, including, f

but not limited to fire, flood, earthquake, hurricane, tor- .

nado, high water landslide, mudelide, wind, storm, wave action, volcanic activity epidemic, air contamination, blight, drought, i-infestation, explosion, radiological accident or water contam-i instion.

i- b. " state disaster emergency" meene a period beginning with a declaration by the governor that a disaster exists and end-ing upon the termination thereof.

l- " municipality" means a public corporation as defined in c.

subdivision one of section sixty-six of the general construc- '

tion law and a special district as defined in subdivision i sixteen of section one hundred'two of the real property tax law.

~

d. " commission" moans the disaster preparedncss commission created pursuant to section tuenty-one of this article.

e, " emergency services organization"-means a public or pri-vate agency , organization or group organized ambulance, and functioning-rescue for the purpose of providing fire, medical, food or other services directed toward relieving housing,ffering, human-su injury or loss of life or damage to property e6 a result of an emergency, including non-profit and govern-

1. mentally-supporte,d organizations, but excluding governmental agencies.

f. " chief executive" means:

(1) a county executive or manager of a county:

(2) in a county not having a county executive or manager, the chairman or .other presiding officer of the county legislative body (3) la mayor of a city or. village , except where a city '

d or vil-la (4)ge has a manager, it shall mean such managers ana super -

manager, it shall mean such manager. .

I -

This Soction states general STATE policies including the proposi-i tion that " local government and emorgency service organizations continue their essential role as the first line of defense in times of disaster" and that the STATE shall provide appropriate supportive services to the extent necessary. This policy statement, contrary to LILCO's assertions, does not explicitly or implicitly authorize private corporations to exercise police powers in the event of a nuclear accident.

Section 20-1(a) acknowledges the role of private groups called

! " emergency service organizations" in providing : services directed toward i relieving human suffering, injury or less of life or damage to property" Such as fire, medical, ambulance, food, housing and similar rescure ger-

. vtceu.

These private e'marEency service organiz.ations have not.been dele-

, gated in any way, shape,The manner or form to the governmental functions which Legislature, if it intended to delegate the I the PLAN contemplates.

! broad-scale powers LILCO claims, would have done so in clear explicit language in the substantive portions of Article 2B which presently only confer these powers upon state and local governments.

CONCT.U.9 TON Thuse declaratory actions which arise out of LILCO's attempt to secure approval of its utility sponsored PLAN clearly present a justi- -

ciabic controversy and the complainte do state a cause of oction. The limited issue of LILCO's authority to implement its PLAN under the laus of'the State of New York does not involve nay disputed questions of fact.

LILCO, as previously mentioned, intends to execute the ptAN '

solely with ics own employees and intends to carry out activities whichcon-are inherently governmental in nature. These powers have been enlely forred upon the STATE and its political subdivisions. LILCO, a private corporation, is a creature of state law and only has those powers which the STATE has conferred upon it. These, powers , express or implied, do not include the right to exercise governmental functions.

Thure is a paradox which is present in this controversy O

and In order to involves the philosophy of the creation of our government.

recognize this paradox, one must examine the philsophy of our founding -

fathers in creating our government.

The political ideas behind the Declaration of Independence and the Constitution were not the sole inventions of the founding fathers.

Franklin, Jefferson, Madison and other colonial leaders were learned and widely read men, steeped in the idens of the English political phucsophers.

The most influential of the6e philosophere upon The the founding fathers was Grand Convention",

John Locke (See Clinton Rossiter, "1787:

(MacMillan. 1966]),

Locke, an avid opponent of the divine right theory of government, put forth his ideas about the creation, pu,rpose written and powers His in 1689.

of government ideas, for in his " Treatise of Civil Government" the purpose of this discussion, may be summarized as follows:

O O ME - O .O U H* e

1. Individuals originally existed in a stat.o of naturw.

Euch individuni had the right to do whatsoever was necessary for his'

- prusorvation and the Locko right to pnish those who commtmd crimos against called these rights the "supremo power".

the laws of natura.

2. The weak were at the mercy of the strong in the state of naturo. Each individual, because of the situation, encored into a

" social contract" with every other individual and this social contract resultad in the creation of a civil society or community. The "nupreme power" is surrendered by each individual to the community.

3 The community is created for the purpose of establishing a uhich is accomplished by means of a trust. This means that government, Thus the community does not govern. ment only enjoys a " fiduciary power".

surrender the " supreme power but merely entrusta it to government.

4. The powers of government are limited. Covernment is account able to the community. The community, ifThis government breaches its trust, latter phrase meant the right had a right to "appesi to the heavens".

of ravolution (our founding fathers substituted the right to change r,overnmnnts by means of a Irce election for Locke's right of revolution).

What is the paradox?

The STATE and COUNTY would be branching their " fiduciary" duty tu prutoct the welfare of its citizens if thuy permitted a privotu corpora-tion to uvurp the police powcrs which worc ontrustad solely to them byis a governm thu connunity. LILCO has to realize that this not of men ne private corporations (Sec John Adams " Draft Massachusotts ~

consj. i t ut ion , nuclaration of Rinhts. ART XXXu_1779)."~"

On the other hand, the STATE and COUNTY maintain that they csnreised their police powers in order to protect the community in their deturmination not to adopt or implement any enurgency plan for Shoreham

' because of the " impossibility" to have a " safe evacuation" in case of 'a nuclear eccident. LILCO asserts that this position is nothing more than n " sham" and amounts to a breach of the STATE's and COUNTY's duty to pro-l tect .the citizens in case of a nuclear LILCOaccident at Shorcham is in effect reminding as theenvisi i

f by Article 2B of the Executive Law. STATE and COUNTY governments th

' Supra Principem" (The Prince is not above the Laws, but the Laws above the Prince , Pliny the Younger, " Panegyric of Trajan" sec. 65 100 A.D. ) .

There is no need to resort to a revolution or the usurpation of L

aovernmental powers by LILCO if there has in fact been a broach of a trust w the STATM and COUNTY. LILCO can test this matter in snothat tribunal

< b'y etmunencing an action in the nature of a writ of mandamus or in the arer -

l of public opinion which manifests itscif by the results of an election.

Settic judr,mont on notice. , ,

J.S.C.

i I _