ML20213F554

Ack Receipt of FEMA 861104 Ltr Refusing to Withdraw Part of Memo Re Regional Assistance Committee Assuming That Authority Necessary to Manage & Implement Offsite Plant Exists.Related Correspondence

ML20213F554
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/05/1986
From:	Brown H KIRKPATRICK & LOCKHART
To:	Perry S Federal Emergency Management Agency
References
CON-#486-1488 OL-5, NUDOCS 8611140280
Download: ML20213F554 (4)

Text

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'86 NOV 10 P4 :472.eaumsti mui. n iun oogs 7.si:2 i omi..u o c HERBERT H. BROWN QTf M r ntTsatsca. tA is222 am esums 00CM ~ .. i.in sum November 5, 1986

>e3 y - -- 1 "6 r?rf. . . . n, -.;,L--0 Spence W. Perry, Esq. -

General Counsel Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C. 20472

Dear Mr. Perry:

Thank you for your letter of November 4, in reply to mine of October 29, advising Suffolk County, New York State, and the Town 4

of Southampton that FEMA has "no intention of withdrawing that part of the memorandum to the region to which (the Governments]

object, i.e., that in performing its review of Revisions 7 and 8 of the LILCO Transition Plan the Regional Assistance Committee (RAC) may have had (sic) to assume, pending final resolution of

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the issue in the courts, that the authority necessary to manage and implement the offsite plan exists."

Being so advised, the Governments would appreciate FEMA counsel's specification of the legal basis for FEMA to conduct its RAC review pursuant to an assumption that disregards the ruling of the New York State Supreme Court. You will recall that under the Constitution and laws of New York, the Sapreme Court ruled that LILCO does"not have the authority to manage and implement the offsite plan. Please refer to the last paragraph of my October 29 letter, a copy of which is attached for your convenience.

Also, perhaps you will recall the legal memorandum to FEMA's Associate Director that you wrote on February 26, 1985. The memorandum concluded that it was highly unlikely the New York .

State Supreme Court's ruling would be reversed on appeal. Your words, at page 3, were, "I do not rate the chances for reversal on appeal as very high." The force of your conviction suggests 8611140280 861105 PDR ADOCK05000pD G P

4 KIRKPATRICK & LOCKHART i

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Spence W. Perrf, Esq.

November 5, 1966 Page 2 that, pending " final resolution in the courts," it is more fitting for FEMA to assume that LILCO does not have legal authority to manage and implement its plan than to assume that the New York Supreme Court does not exist.

Kind regards.

l Very truly yours, Herbert H. Brown cc: Service List I

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9 KIRKPATRICK & LOCKHART

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WASHINGTON, D C. 20016 ONE sosToN PLACE DMmN. M A 021.4 .

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..In m<a om m.nn October 29, 1986 HAND DELIVERED Mr. David McLoughlin Deputy Associate Director of State '

and Local Programs and Support Federal Emergency Management Agency 500 C Street, S.W., Room 706 Washington, D.C. 20472

Dear Mr. McLoughlin:

I am writing on behalf of Suffolk County and with authorization of the State of New York and the Town of Southampton (" Governments") in reference to your October 6, 1986, memorandum to the Acting Director of FEMA's Region II. Therein, you request a " full Regional Assistance Committee (RAC) review" of Revisions 7 and 8 of LILCO's emergency plan and of LILCO's responses to FEMA's assessment of the February 13, 1986, exercise.

The Governments object to the following statement in your memorandue:

In performing this review, the RAC may have to assume, pending final resolution of the issue in the courts, that the authority necessary to manage and implement the offsite plan exists.

The Governments request (1) that you immediately delete the foregoing statement from your memorandum because it requests Region II to act pursuant to an assumption that is contrary to e law; and (2) that you instruct Region II to make only the lawful assumption that LILCO does not have legal authority to implement

'its emergency plan.

Your memorandum, as now written, requests Region II to conduct its RAC review on the basis of an assumption that A violates the Constitution and laws of the State of New York. On

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Mr. David McLopghlin October 29, 1986, Page 2 February 20, 1985, the New York State Supreme Court ruled that LILCO does not have legal authority to implement its emergency plan. The Court's ruling has not been stayed and, therefore, is fully in effect. FEMA does not have the liberty to flout this ruling by performing its RAC review on the basis of the unlawful assumption specified in your memorandum. Contrary to your statement, FEMA, just like everyone else in this country, is bound to adhere faithfully to the law of the land. The New York State Supreme Court's ruling is that law.

I look forward to your early response.

Very truly yours, Herbert H. Brown cc: Service List e

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