ML20141F624

Util Response to 851224 Motion for Cancellation of Emergency Planning Exercise.Motion to Cancel Exercise Should Be Denied.Certificate of Svc Encl

ML20141F624
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/06/1986
From:	Reveley W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	NRC COMMISSION (OCM)
References
CON-#186-684 OL-3, NUDOCS 8601090470
Download: ML20141F624 (62)

Text

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'T j . LILCO, January 6, 1986 DEETED uumC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION _

'86 dVl-8 N0:35 Before the Commission ygy DOCXiih'fdfida 3 RANCH In the Matter of )

)

LONG' ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning Proceeding)

(Shoreham Nuclear Power Station, )

Unit 1) )

RESPONSE OF LONG ISLAND LIGF. TING COMPANY TO MOTION FOR CANCEL!.ATTO4 OF EMERGENCY PLANNING EXERCISE 10n December 24, 1985, Suffolk County, the State of New York, and the. Town of Southampton ("Intervenors") filed a motion to can-cel a scheduled FEMA exercise of the Shoreham Emergency Plan.1/

Reduced to its simplest form, Intervenors' motion advances two arguments for reversal of the Commission's earlier. decision to re-quest FEMA to conduct an exercise of that Plan. Intervenors first contend that " binding" legal decisions forbid LILCO from imple-menting the Shoreham Plan and that, as a result, any exercise of the Plan'would serve no useful purpose. Second, Intervencrs argue that if'one of the purposes of the exercise is to simulate roles for state and local governmental officials, then the exercise again serves no useful purpose since conducting the exercise would 1/ Suffolk County, State of New York and Town of Southampton Motion for Cancellation of Emergency Planning Exercise (December 24, 1985) (hereinafter "Intervenors' Motion").

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o i be tantamount to testing a plan that had not been the subject of prior. litigation. As will be discussed in detail below, neither claim is meritorious; neither presents any information not already before the Commission when it determined to request FEMA to sched-ule an exercise for Shoreham; neither warrants the Commission's reconsidering and reviewing that decision.

In reality, Intervenors' motion goes to the weight to be given the results of an exercise in deciding whether to grant Shoreham a full power operating license, and not to the question of whether the Commission has the authority to exercise the Shoreham Plan. As such, Intervenors' motion is premature. They will have ample opportunity to question the exercise results and their use following the completion of the exercise. As a result, Intervenors have failed to demonstrate any harm from conducting an exercise.

On the other hand, conducting an exercise will yield impor-tant information. First, it will shed light on the actual effec-tiveness of LERO, the Shoreham Local Emergenc y Response Organiza-tion set up in the wake of Suffolk County's default on emergency planning matters. Second, it will help to confirm or rebut a large group of Intervenors' arguments about whether the Shoreham Emergency Plan actually can be effective as proposed. Third, it will test LILCO's " realism" argument.2/ Thus an exercise would 2/ The " realism" argument contends that despite the state and local governments' refusal to cooperate in emergency planning, (footnote continued)

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assist the Commission in deciding whether to license the Shoreham facility. Accordingly, the Commission has correctly decided to hold an exercise and Intervenors' motion to cancel that exercise should be denied.

I. Conducting an Exercise of the Shoreham Emergency Plan Would Yield Useful Information Intervernors contend that a FEMA exercise of the Shoreham Emergency Plan would neither serve any purpose nor be "useful" in the Shoreham licensing process. Intervenors' Motion at 5-6.

Intervenors' argument is premised on this construct: 1) LILCO must have an implementable emergency plan to meet NRC regulatory requirements, 2) a series of court decisions, and particularly one by a New York baseline trial court judge (Justice Geiler), estab-lish, "as a matter of law," that LILCO cannot implement the Shoreham Plan in an actual emergency, and 3) since the Shoreham Plan will be implemented solely by LILCO, an exercise of that plan would serve no useful purpose. Id. at 6. In addition, Inter-venors take a quantum leap and suggest that Justice Geiler's deci-sion prohibits LILCO from even exercisino any emergency activity that, if actually performed in an emergency, would be governmental in nature. Assuming this prohibition, Intervenors argue that any (continued from previous page) they would nevertheless respond in the event of an actual emergen-cy at Shoreham, as they are required to do under state law. This argument is currently pending before the Commission as part of the review of ALAB-818.

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' exercise would be so devoid of content as to render it useless.

'Intervenors' Motion at 6-15. - These arguments rest on false pre-sumptions and must be. rejected.

A. It Has Not Been Settled that the Shoreham Emeroency Plan Cannot Be Leoally Imolemented Intervenors' argument that it has been established that the Shoreham Plan cannot be legally implemented is simply wrong for

'two reasons. First, the decisions cited by Intervenors do not stand as binding precedent for the proposition that the Shoreham Plan cannot be implemented. Second, Intervenors have mischaracterized the Shoreham Plan, and the litigation concerning that Plan, by suggesting that the Plan's implementation rests solely with LILCO.

Intervenors cite four cases for the proposition that, as a matter of law, the Shoreham Plan cannot be implemented. See Intervenors' Motion at 5-6. Intervenors rely principally on Jus--

tice Geiler's decision in Cuomo v. LILCO, Consol. Index No.

84-4615 (N.Y. Sup. Ct., Feb. 20, 1985), and argue that "[f]or pur-poses of the NRC's proceedings, LILCO has accepted the cuomo v.

LILCO decision as a binding interpretation of State law." Inter-venors' Motion at 5 n.4. While Intervenors are correct in stating that Justice Geiler ruled in Cuomo v. LILCO that as a matter of New York State law LILCO does not have the authority to implement certain functions involved in the Shoreham Plan in an actual emer-gency, LILCO has not acquiesced in that decision; in fact, LILCO

has appealed that decision to the Appellate Division of the New York Supreme Court. When LILCO first filed its motion for summary disposition of Intervenors' legal authority contentions 2/ with the ASLB, it stated:

This motion assumes, for the sake of aroument, the Intervenors (Suffolk County and the State of New York) are correct that state law pro-hibits LILCO from taking the actions specified in Contentions 1-10 . . . .

LILCO's Motion for Summary Disposition of Contentions 1-10 (The

" Legal Authority" Issues), p. 2 (August 6, 1984) (emphasis supplied). Later, after the decision in Cuomo v. LILCO, LILCO renewed its motion for summary disposition and stated:

LILCO disagrees with the New York State court's decision and intends to seek appellate review of it. However, LILCO believes that this Board should not await the conclusion of that process before acting: the decision will become effective upon entry of an Order of Judgment as a matter of New York law; and the complete review process (through the New York Appellate Division and Court of Appeals, with an appeal to the U.S. Supreme Court) bids fair to take two or three years at least.

LILCO's Renewed Motion for Summary Disposition of Legal Authority Issues on Federal-Law Grounds, p. 5 n.7 (February 27, 1985).

Thus, LILCO has not accepted the decision in Cuomo v. LILCO as the final word on New York State law, and it will not be the final 2/ Ten of the 100-odd contentions filed by Intervenors on the Shoreham Emergency Plan (Contentions 1-10) dealt specifically with LILCO's legal authority to carry out plan activities durino an actual emeroency. These ten contentions have been dubbed the

" legal authority" contentions and are the primary focus of ALAB-818.

9 word unless upheld on appeal. Rather, LILCO has accepted the Cuomo v. LILCO decision as the Dresent interpretation of New York State law for the purpose of. deciding the preemption issues before

.the ASLB and'ALAB.

Intervenors also cite a licensing board decisioni/ and an ap-peal board decisionE/ as holding that State and local laws inter-

.preted in Cuomo v. LILCO are'not pre-empted by federal law and that the'Shoreham' Plan cannot'be implemented.E/ Intervenors' Motion at 5-6. Tne status of these decisions is clear. The Com-mission has agreed to review'them and, accordingly, is free to overrule them if it so chooses. Thus, they do not bind the Com-mission.

4/ Lona Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644 (1985).

1/ Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAE-818 (Oct. 18, 1985).

f/ Intervenors also suggest that the ASLB denied Shoreham a full power operating license solely because it concluded that the Plan could not be implemented. Eee Intervenors' Motion at 6. Inter-venors have misstated the ASLB's decision. The ASLB did not con-clude that because New York State law prohibited LILCO from per-forming certain governmental functions, and those laws were not pre-empted by federal law,'its inquiry was ended and LILCO should be denied an operating license. Instead, the ASLB found in re-sponse to LILCO's " realism" arguments that since New York State and Suffolk County were " free to go (their] own way" during an ac-tual emergency, NRC regulatory requirements for pre-planning were not met. Lona Island Lichtina Co. (Shoreham Nuclear Power Sta-tion, Unit 1), LBP-85-3.1, 22 NRC 410, 428 (1983). Whether the ASLB was correct in this subjective conclusion or whether the Shoreham emergency plan is sufficiently flexible to accommodate an ad hoc response by State and/or local officials is a question that should be illuminated by an exercise.

Finally, Intervenors make passing reference to Citizens for an orderly Energy Policy, Inc. v. County of Suffolk, 604 F. Supp.

1084 (E.D.N.Y. 1985). Intervenors' Motion at 5 n.5. This deci-sion does not, by any stretch of imagination or logic, hold that the Shoreham Plan cannot be implemented. Instead, the federal district court held that a local government can refuse to cooper-ate in emergency planning solely because Congress and NRC deci-sions permit a utility to go forward with its own emergency plan.

In this regard, the court explained:

Certainly the County may not require LILCO to comply with the County's requirements for a satisfactory RERP; whether LILCO's RERP is sufficient is a question for the NRC, and the County may not override the NRC's judgment.

Here, however, the County has not passed a moratorium on nuclear plant construction and operation based on the County's opinion that no satisfactory RERP can be devised. Rather the County has adopted the position that a satisfactory RERP is not obtainable. The County has not and cannot supersede the judg-ment of the NRC on whether or not a license should issue for Shoreham. Once the NRC makes that decision the County's opinion on LILCO's RERP will become academic.

604 F. Supp, at 1094-95. Thus, the four cases relied on by Inter-venors do not by any means hold that the Shoreham emergency plan cannot, under any circumstances, be legally implemented.

Intervenors are also incorrect in suggesting throughout their motion that the Shoreham Plan that has been litigated in this pro-ceeding assumes that LILCO, and only LILCO, will implement that Plan. Intervenors have misread the Plan and have ignored both the composition of LERO and the " realism" argument that has been

4 presented at each stage of this licensing proceeding.2/ The Shoreham Plan contains express provisions for State and local gov-ernmental participation during an actual emergency. These provi-sions include guidance to the LERO Director of Local Response on the actions he should take if State or local governmental offi-cials decide to cooperate in an actual emergency (including sug-gestions for activities governmental personnel could perform),

SNPS Local Offsite Radiological Emergency Response Plan, pp.

1.4-la, 1.4-2, 1.4-2a, 1.4-2b, 3.1-1, a detailed procedure for participation by the Suffolk County Police Department as traffic guides, OPIP 3.6.3, pp. 3, 4 and Attachment 15, a prioritized list of routes to be plowed should governmental entities offer snow removal assistance, OPIP 3.6.3, p. 3 and Attachment 16, and the assignment of LERO personnel trained in radiation fundamentals and dosimetry to accompany governmental emergency response personnel in restricted areas to ensure those individuals will not receive excessive doses of radiation, SNPS Local Offsite Radiological Emergency Response Plan, p. 2.2-4h.

2/ LILCO has presented its " realism" argument to the Licensing Board (LILCO's Memorandum of Service of Supplemental Emergency Planning Information, pp. 7, 15 (May 26, 1983); LILCO's Motion for Summary Disposition of Contentions 1-10 (The " Legal Authority" Is-sues), pp. 42-50 (Aug. 6, 1984); LILCO's Brief on Contentions 1-10, pp. 9-12, 42-66 (Nov. 19, 1984)), the Appeal Board (LILCO's Brief Supporting Its Position of Appeal from the " Partial Initial Decision on Emergency Planning" of April 17, 1985, pp. 45-58 (June 3, 1985); LILCO's Reply Brief on the Legal Authority, Conflict of Interest, and State Plan Issues, pp. 2-6 (July 24, 1985)), and the Commission (LILCO's Petition for Review of ALAB-818, pp. 6-7, 12 (Nov. 4, 1985)).

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LILCO has always argued, and New York State and Suffolk Coun-ty officials have never denied,E/ that if Shoreham were licensed to operate and an accident actually occurred, New York State and Suffolk County officials would act to protect their citizens.

Since a detailed emergency plan would exist and a large organiza-tion, LERO, would be available and trained to carry out that plan, it is not credible that governmental organizations would wholly ignore LILCO's immense response capability. The Shoreham Plan re-flects these practical realities and is sufficiently flexible to accommodate them. This is the essence of LILCO's " realism" argu-ment.

An exercise would be particularly useful in assessing the flexibility of the Shoreham Plan to respond to ad hoc governmental responses, and could provide the basis for a " reasonable assur-ance" finding by the Commission. Accordingly, an exercise is "useful" and Intervenors' arguments to the contrary must be re-jected.

B. The Decision in Cuomo v. LILCO Does Not Prohibit the Exercising of Certain Portions of the Shoreham Plan Through what is largely an attempted semantic sleight-of-hand, Intervenors contend that the decision in Cuomo v. LILCO also 1/ See pages 15-20 below for a discussion of Intervenors' sug-gestion in their motion (Intervenors' Motion at 19-21) that Suffolk County officials are forbidden from responding in the event of an actual emergency.

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forbids LILCO from simulating the performance, during an exercise, of any of the activities held to be prohibited during an actual i

emeraency. Intervenors reason that, absent these activities, an exercise would yield no meaningful results. See Intervenors' Mo-tion at 6-15. The simple response to Intervenors' argument is that Cuomo v. LILCO addressed only LILCO's authority to "imple-ment" its Plan during an actual emergency, not its authority to 4

" exercise" that Plan.

Intervenors summarily state, without specific citation to Justice Geiler's decision or Partial Declaratory Judgment, that:

. . . . it is clear that multiple functions in the plan clearly cannot be performed by andcannotbeincludedinanyexercise.gpILCO and The Court rejected LILCO's claim that it had corporate authority to carry out the LILCO plan; it held that LILCO has no corporate au-thority to carry out the plan or to perform basic plan functions. A fortiori, LILCO has nocorporateauthorityggj test its ability to carry out illegal acts.--

and, finally Under the terms of the Partial Declaratory Judgment, LILCOisprohibitedfromexe{gpsing each of the functions set forth above.--

The sole basis for these conclusions is Intervenors' substitution 2/ Intervenors' Motion at 6.

1Q/ id. at 8.

11/ Id. at 10.

of the verb " exercise" for the verb " implement" contained in Jus-tice Geiler's decision. A review of that decision reveals this substitution is inappropriate.

Both Justice Geiler's decision and Partial Declaratory Judg-ment are clearly focused on LILCO's legal authority to carry out its Plan during an actual' emergency at Shoreham.11/ Each talks about LILCO's authority to " implement" its Plan, not its authority to draft and test that Plan.12/ Likewise, review of Intervenors' complaints reveals that they too were focused on LILCO's ability to implement various emergency response functions in an actual emergency. For example, the virtually identical paragraphs from 1

each complaint cited in Intervenors' motion (see Intervenors' Motion at 9) begin with the phrase "[iln the event of an accident 12/ The Court's opinion and Partial Declaratory Judgment are at-tached to this reply (Attachments 1 and 2). The materials that are attached to this reply either have not been published or, in our belief, have not been previously provided to the Commission.

13/ The only ambiguity in the opinion appears on page 12 of the i decision. There, the opinion states: "LILCO in ' planning' for a radiological emergency would in effect be performing functions that are governmental in nature." However, the context of this statement, and the Partial Declaratory Judgment which followed, reveal that the Court did not prohibit LILCO from planning for a radiological emergency. The Partial Declaratory Judgment does not in any manner restrict LILCO's ability to engage in pre-emergency planning or exercising as part of that planning. Such a prohibi-tion would place State and local laws in direct conflict with fed-eral law which clearly authorizes a utility to prepare an emergen-

! cy plan in the absence of state and local planning. See, e.o.,

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

LBP-83-22, 17 NRC 608, 629, 641-43 (1983); Lono Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-83-13, 17 NRC 741, 743 (1983).

at Shoreham . . . ,

(emphasis added). This phrase can only be interpreted as applying to LILCO's actions at the time of an actu-al emergency, not to earlier planning activities.

The scope of Justice Geiler's decision is set forth in the Partial Declaratory Judgment. Both Intervenors and LILCO pres-ented proposed language for that judgment to Judge Geiler. The court adopted LILCO's proposal with only minor modification, hold-ing that LILCO was not empowered only "to implement the Transition Plan."11/

Therefore, Cuomo v. LILCO does not forbid LILCO from simu-lating alleged " governmental functions" during an exercise.

Intervenors' arguments to the contrary must be rejected.

11/ Intervenors' construction of Justice Geiler's opinion is also fallacious logically. Once one departs from the bright-line dis-tinction between actual implementation and all other forms of ac-tivity (all of which are species of planning), one gets onto a slippery slope with no logical stopping-point. If a formal graded FEMA exercise (where state-law governmental emergency response functions would be simulated but not in fact performed) is unlaw-ful, is not an internal LILCO drill held entirely on LILCO proper-ty, where the same functions are also simulated but not performed, also unlawful? If so, are not internal tabletop exercises, where governmental responses are among those simulated, also unlawful?

Are not corrective amendments to emergency plans based on the re-suits of such internal exercises also unlawful? Is not the estab-lishment of LERO unlawful? At bottom, is not the very act of emergency planning as an intellectual exercise, which forms the basis for these internal drills and exercises, unlawful? That none of these processes short of actual implementation is not un-lawful is attested to not only by the absence of statutory or decisional support but also by logic and by the fact that LILCO has been submitting and amending its emergency plan, creating an emergency planning organization, and training and drilling it for nearly three years now without prosecution or threat thereof by an opponent not known for its restraint.

II. An Exercise Which Includes the Simulation of State /

Local Government Response Would Be Consistent with Prior Litication in this Proceedina Intervenors contend that if a FEMA exercise included the sim-ulation of State or local government response, "the exercise would be irrelevant to the Shoreham licensing process." Intervenors' Motion at 15. Intervenors argue that since the Shoreham Emergency Plan relies solely on LILCO for implementation, simulated partici-pation of State or local governments would test a plan that was not the subject of prior scrutiny. Id. at 15-18. They assert that the commission has no authority to conduct such an exercise, and that conducting the exercise "would be a gross violation of (Intervenors'] due process and the NRC's own regulations." Id. at 18-19. Finally, they argue that simulation of a Suffolk County response would be " irrational," since County law prohibits all County employees from implementing the Shoreham Plan. Inter-venors' Motion at 19-21. Intervenors' claims are meritless.

As noted above, the Shoreham Emergency Plan does not rely solely on LILCO for its implementation. Instead, the Plan was designed to be implemented by a voluntary response organization --

LERO -- in the absence of a State or local response. However, the Plan clearly recognizes that a governmental response takes prece-dence over LERO actions. SNPS Local Offsite Radiological Emergen-cy Response Plan, p. 1.4-la. Accordingly, the Plan contains nu-merous provisions for coordinating the actions of governmental officials with those of LERO should those officials participate,

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. l i as they are required by State law to do, during an actual emergen-cy. Thus, an exercise which included the simulation of an ad hoc 1

State or local government response would be entirely consistent a

with the Plan that has been the subject of litigation in this pro-ceeding.1E/

1-11/ Contrary to Intervenors' assertions, the ASLB did not limit litigation to a plan that was to be implemented only by LILCO.

See-Intervenors' Motion at 16. When LILCO originally submitted its Shoreham Plan, it submitted a core plan with four " interim" plans. The core plan assumed implementation by LERO and Suffolk County, while the interim plans assumed LERO-only, LERO/New York State, LERO/ FEMA, and LERO/NRC implementation. In describing the LERO-only plan to the ASLB, LILCO stated:

Based on past experience, LILCO expects that i many County personnel would be willing to perform j their duties if there were-an actual radiological emergency. LILCO's interim co.npensating plans take into account the potential participation of County personnel. For example, the evacuation plan pro-vides that LILCO personnel will be available at each traffic post to assist County police officers, d

If a particular police officer here or there does i not show up at once, the LILCO person can' guide i traffic until the police officer arrives. Simi-

! larly, if the County Executive reports to the local Emergency Operations Center, LILCO's plans provide j for him to be brought into the emergency response j process. <

! LILCO's Memorandum of Service of Supplemental Emergency Planning Information, p. 15 (May 26, 1983). The ASLB limited litigation to 1 the LERO-only plan "(u]ntil such time as LILCO can establish that

{- .one or more of the governmental entities designated in its emer-

! gency plan consent to participate 1:1 such a venture." Order Lim-iting Scope of Submissions, p. 3 (June 10, 1983).

The ASLB's later rulings on the admission of certain evidence do not evince a different intent. The rulings cited by Inter-venors (Intervenors' Motion at 16 n.15) did not exclude evidence on New York State and Suffolk County response in an actual emer-gency. 'Instead, the struck testimony opined on whether Suffolk County police would-ignore their superiors and County law and re-(footnote continued)  ;

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The exercise would not test some " secret" plan as Intervenors suggest. Nor would it deny them due process. Indeed, Intervenors will have ample opportunity to challenge the scope of the exercise and the effectiveness of LERO actions in later hearings.

Finally, Intervenors contend that simulation of a response by Suffolk County officials would be irrational since all County em-ployees are prohibited by law from implementing the Shoreham Emer-gency Plan. As support for this argument, Intervenors implicitly ask the Commission to accept.their novel, expansive readings of several court decisions, to ignore State law requiring the County Executive.and the' Governor to take the most effective response (continued from previous page) spond during a radiological emergency (Contention 25), why Suffolk County's refusal to cooperate had resulted in a misallocation of resources (Contention 65), and whether a New York State Emergency Plan existed (Contention 92). By contrast, Intervenors unsuccessfully attempted to strike a question and answer contained in'LILCO's testimony on contention 92 that stated:

Q. Has New York State indicated whether it would respond were an emergency to occur at Shoreham?

A. Yes. In a press release by Governor Mario l Cuomo, dated December 20, 1983, the Governor stated that "[olf course, if the plant were to

.be operated and a misadventure were to occur, both the State and County would help to the extent possible; no one suggests otherwise."

l t Cordaro, 31 31., ff. Tr. 13,899, p. 7. The ASLB denied this ob-jection and admitted the evidence, holding that "the statement of the Governor of New York concerning whether the State would re-

! spond to an accident at Shoreham is relevant." Tr. 5565-66. This l testimony would not be relevant if the ASLB assumed that only LILCO would implement the Shoreham Plan.

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possible in an actual emergency, N.Y. Exec. Law Art. 2-B, SS 20, 25, and to ignore the clear and unambiguous statements of the Suffolk County Executive and the Governor that the County and State would respond in the event of an actual emergency at Shoreham.15/ See Intervenors' Motion at 19-21. Intervenors' invitations should be rejected.

Intervenors argue: 1) Suffolk County Resolutions prohibit County employees from testing or implementing an emergency plar that has not been previously approved by the Suffolk County Legis-lature; 2) the Legislature has not approved a plan for Shoreham:

3) decisions in Citizens for an orderly Enerav Policy, Inc. v.

11/ In a press release by Governor Cuomo, dated December 20, 1980, he stated that "[olf course, if the plant were to be oper-ated and a misadventure were to occur, both the State and County would help to the extent possible; no one suggests otherwise."

Testimony of Cordaro and Weismantle, ff. Tr. 13,899, at 7. Simi-larly, Suffolk County Executive Cohalan was quoted in the June 15, 1985 New York Times as stating:

In that event (i.e., Shoreham becomes radioac-tive], the county has a duty and responsibili-ty to provide for the health and safety of the residents near the plant.

Again, on June 26, 1985 in response to a letter from LILCO coun-sel, Mr. Reveley, County Executive Cohalan stated:

In the event of a radiological accident, I, as the County Executive will respond to the best of my ability and in accordance with the du-ties and obilgations placed upon me by Article 2-b of the Executive Law.

Copies of Governor Cuomo's press release (Attachment 3), Mr. Rev-eley's letter to Suffolk County Attorney Ashare (Attachment 4),

and County Executive Cohalan's reply (Attachment 5) are attached to this Response.

County of Suffolk and Prospect v. Cohalan uphold the resolutions and make them absolutely binding on all County employees including the County Executive; and 4) as a result, any statements by the County Executive to the contrary are void. While it is true that Suffolk County Resolutions 456-1982 and 111-1983 provide that County funds and personnel shall not be assigned to test or imple-ment an emergency plan that has not been approved by the Legisla-ture and that in the Legislature's view no emergency response plan is possible at Shoreham, they do not, and cannot, expressly over-ride the County Executive's independent responsibilities under Article 2-B of the New York State Executive Law to respond to ac-tual radiological disasters. Section 25 of Article 2-B provides:

5 25. Use of local government resources in a disaster.

1. Upon the threat or occurrence of a disas-ter, the chief executive of any political subdivi-sion is hereby authorized and empowered to and shall use any and all facilities, equipment, sup-plies, personnel and other resources of his politi-cal subdivision in such manner as may be necessary or appropriate to cope with the disaster or any emergency resulting therefrom.

7. Any power or authority conferred upon any political subdivision by this section shall be in addition to and not in substitution for or limita-tion of any powers or authority otherwise vested in such subdivision or any officer thereof.

Contrary to Intervenors' assertions, the courts have confirmed the County Executive's independent power and duty under Article 2-B to respond effectively in an actual radiological emergency. Prospect

v. Cohalan, 490 N.Y.S. 2d 795, 800 (A.D.2 Dept. 1985).

As discussed above at page 7, the court in Citizens for an Order 1v Enerav Policy. Inc. v. County of Suffolk, 604 F. Supp.

1084'(E.D.N.Y. 1985), was asked to decide whether Suffolk County's

. refusal to cooperate in emergency planning was preempted by the Atomic Energy Act. The court did not decide whether the Suffolk County resolutions overrode the County Executive's independent powers and responsibilities under Article 2-B of New York Execu-tive Law to respond effectively in an actual emergency.

Thus to assert, as Intervenors have, that the federal court confirmed the validity of the resolutions is to stretch the court's decision far beyond its bounds.

The issue of the County Executive's authority under State law was addressed indirectly in a string of decisions in ProsDect v.

Cohalan.11/ That case involved a challenge by a majority of Suffolk County legislators and certain Towns to an executive order,. issued by the Suffolk County Executive on May 30, 1985, that. directed the Commissioner of Police and Commissioner of the Suffolk' County Planning Department to review, evaluate and test the Shoreham Emergency Plan. The New York Supreme Court enjoined the Executive Order; that decision was upheld, on narrow grounds, by the Appellate Division of the Supreme Court and by the New York State Court of Appeals, which held that the County Executive could not unilaterally adopt an emergency plan, but that he was ll/ Prosoect v. Cohalan, N.Y. Sup. Ct., July 10, 1985, aff'd, 490 N.Y.S. 2d 795, aff'd, 493 N.Y.S. 2d 293 (1985).

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_19 empowered and required by law to respond effectively in an actual emeroency. The decisions of the New York appellate courts are instructive in establishing the relationship between the County resolutions and the County Executive's powers and responsibilities under Article 2-B. The Appellate Division stated:

Specifically, the State Legislature vested local chief executives with the power to respond to a local disaster or the immediate threat of a disaster (see, Executive Law S 24 (1], SS 25, 26, 29-b), whereas the local leg-islative bodies were endowed with the power to plan and prepare for a disaster (see, Execu-tive Law S 23 (1]). This delegation of func-tions reflects an awareness by the State Leg-islature that in emergency situations prompt and immediate unilateral action is necessary to preserve and protect life and property, the accomplishment of which would be frustrated if left to a deliberative body such as a county legislature.

490 N.Y.S. 2d at 800 (emphasis in original). The Court of Appeals confirmed that the County Executive can also engage in pre-emergency planning to some extent:

If the challenged executive order is merely a vehicle for the gathering of information to enable the county executive to perform his statutorily mandated functions of taking "an active and personal role in the development and implementation of disaster preparedness programs" (Executive Law S 20(1][6]) and giv-ing " advice assistance" to the local legisla-tive body or other duly appointed planning au-thority (Executive Law 5 23(5]), it is clearly authorized under the statute.

493 N.Y.S. 2d at 294.

Thus, contrary to Intervenors' assertions, courts have not held that the Suffolk County resolutions prohibit all County

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employees including the County Executive from implementing the l

Shoreham Plan in responding to an actual emergency. Indeed, those decisions clearly recognize the County Executive's separate responsibilities and duties under Article 2-B. The statement by Suffolk County Executive Cohalan that he would " respond to the best of [his] ability and in accordance with the duties and obli-gations placed upon (him] by Article 2-b of the Executive Law" thus refutes Intervenors' claim that simulation of a Suffolk Coun-ty response would be irrational.

Conclusion For the reasons stated above, Intervenors' motion to cancel an exercise of the Shoreham Plan should be denied.

Respectfully Submitted,

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! W. ' Taylor Reveley, III Donald P. Irwin James N. Christman Hunton & Williams 707 East Main Street P. O. Box 1535

• Richmond, Virginia 23212 DATED: January 6, 1986

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ATTACHMENT 1

'* Jan. 15, 1985 SUPREME COURT. CUFFOLK COUNTY MARIO M. CUOMO, ATTACHMENT 1 Plaintiff, By

-against- GEILER, J.S.C

!.ONG ISLAND '.IGilTING COMPANY, A

. . . . . . . . . . . . . . . . . ' . $.$$ . ". .. . . p February 20, 1985 COUt'TY OF SUFFOLK, ,

Plaintiff,

-against- ,

1.uNG I S I.ANI) LIGitTi t:G COMPANY ,

Defendant.  :

TOWN OF SOUTilAMPTON, ,

Plaintiff.

-against- ,

l.ONG ISLAND LICllTING COMPANY, De fendan t'.

................................i FAl'IAN G. PALOMIFO, ESO. ATT0!:MEYS FOR DEFEFOANT Spec. Counsci to t.hc Governor 1.0::G IST.A::D LIClii'it:G COMPA::Y:

of New York State Executive Chanbers ROSALIND 21. G0!C:0N, ESO. ~

2 Horld Trade Center 2500 Old Countrv 1:nad t:eu York , M. Y. 10047 Mineela, N.Y. 11501 and and 1:ni;!:ltT A!; RAMS, ESO. lit lNTON & U! LI.1 A"S , I:50s .

Attorney Ceneral 707 E. ::ain St.

2 World Trade Center Richmond, Virginia 73219 New York, N. Y. 10047 1;y : James E. Fa rn S . .n , Esq. .nu!

r.y :  !!ary 11. Gundrum, Esq. Eathy 1:. C. :!cC1.cshy, E.g.

Of Counsel AlloR :EYS FOR COUNTY OF SUFFOLK:

! ARTlN 1;. ASHARE, ESO.

Gore.'uns Menorial Highway

't w aure, N.Y. 11788 by , Arlenc R. Lindsay, Esq.

of Counsel and KIRKPATRICK, LOCKilART, JOHNSON &

ilUTC!!ISON, ESQS ,

1500 Oliver Bldg.

Pitt.sburgh , Pa. 15222 1;y: David A. Brownloc, Esq. and Kenneth M. Argenticri, Esq. f Of Counsel ATTORNEYS FOR PLAINTIFF TOWN OF SOUTilAMPTO::

TWOMEY, LATHAM & SilEA, ESO,S.

33 West Second St. .

Riverhead, N. Y. 11901 By: Stephen B. Latham, Esq.

Of Counsel

INTRODUCTION The State of New York (STATE), the County of Suffolk (COU::TY) and the Town of Southampton (TOWN), commenced separate decla atory judg-ment actions against the Long Island Lighting Company (LILCO), a public service corporation incorporated pursuant to the laws of the State of New York and primarily engaged in the production, distribution and sale of electricity on Long-Island. These actions arise from LILCO's atter.pt to secure approval of its " utility" sponsored offsite emergency response plan for its nuclear plant located at Shoreham. The plaintiffs seek a declaration that LILCO does not have the legal authority to carry out its plan.

LILCO has moved to dismiss this action and the plaintiffs have cross-moved for summary judgment. The Court, in order to address the 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 fo'r new 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 States v. City of New York, 463 F.Supp. 604).

The Atomic Energy Commission REC) was designated by the Act to oversee the construction and operation of nuclear power plants. This was to be

, accomplished by a two step licensing procedure. First, the operator of a nuclear plant was required to obtain a construction permit from the AEC in order to build a nuclear facility. Second, the operator after completion of the facility, was required to secure a license to operate the plant from the AEC. The AEC, in the latter licensing procedure, was interested mainly in the onsite preparation for an emergency.

. The licensing and regulating functions of the AEC was trans-ferred to the National Regulatory Commission (NRC) by the Reorgani. tien Act of 1974 (U.S.C. $5841 (f) ).

SHOREHAM In 1968 LILCO applied to the AEC for a permit to construct an 820 megawatt nuclear powered electric generating facility on property located at Shoreham in the Town of Brookhaven, County of Suffolk, State of New York. The application was opposed by a private organization known as the and Llo yd Harbor Study Group. The latter was permitted to intervene cross examine LILCO's witnesses at hearings before the AEC.

None of the plaintiffs herein were parties to the permit appli-cation proceedings. However, the late H. Lee Dennison, Suffolk County 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 Construction ?ermit Hearings, Transcript 209, 211, 216, 1970). The permit to construct a nuclear facility at Shoreham was issued by the AEC in 1973).

The approval of the Shoreham construction permit was the catalyst for the issuance of an order by the Suffolk County Executive to the appropriate Radiation COUNTY department to develop a " Response Plan for Major Incidents". In 1975, representatives from LILCO and the COUNTY held a series of meetings in order to define the emergency planning role 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 "Suffol 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) at liarrisburg, Pennsylvania in March 1979, demonstrated the need for im-proving the planning for radiological emergencies. The NRC, prior to the TMI accident did not conditica issuance of an operating license for a nuclear plant upon the existence of an adequate offsite emergency plan.

The TMI accident focused attention on the fact that nuclear accidents may pecpleendanger in.those surrounding c~ommunities.communities and require the mass evacuation of determined Congress, in response that no nuclear plant to the events which occurred at TMI, should be licensed to operate unless an adequate emergency plan could be drawn up and implemented for the area surrounding of 1980. the nuclear facility and passed the NRC Authorization Act The NRC, in implementing the policy expressed by Congress, promulgated a number of regulations which included the mandatory submis-sion of an adequate radiological emergency response plan (RERP) by an applicant desirous of operating a nuclear power plant. The RERP must der 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 ingestion pathway (45 Fed, Reg. 55, 402 August 19, 1980 and 10 C.F.R. 550.33(g) 1984). An operating license is issued only if the MRC finds that there is a reasonable assurance that adequate protective measures can be taken to protect the prea surrounding the nuclear facility in the event of a radiological emergency ( 10 C.F.R. 550.47(a)(1)1984).

FROM PROTAGONIST TO ANTAGONIST A careful study of the NRC regulations indicates that the emergency plans such as RERP, which were to be submitted by licensing applicants would probably ha.ve some imput by those governmental units having jur,isdiction over the area to be evacuated in the event of a nuclear emergency. The " Memorandum of Understanding" signed by County Executive John V. N. Klein and LILCO on December 28, 1979 and the approval 2-

e 4

of the terms of said agreement by the County Executive Elect, Peter F.

Cohalan, gives credence to this analysis of the NRC regulations (see letter from John V. N. Klein to Ira Freilicher, Vice President of LILCO, dated December 31, 1979).

i A number of discussions took place between LILCO and COUNTY

best representatives means of developing betweenan 1980 acceptable and 1981 for the purpose of determining the RERP.

signing of a contract between LILCO and the COUNTY These ondiscussions March 15, 1981. led to the i The

COUNTY paying theagreedprojected to develop

$245,000.00 an emergency plan and LILCO in turn consented to

Legislature, i cost of preparing the" plan. The County i LILCO advanced $150,00000 n September 1981, approved the terms of the agreement and

$245,300.00. as the first installme tn on the payment of scheduled completion The latter datewas of the to PLAN.

be paid in full on March 18, 1982, the 1 On February 19, 1982, the COUNTY advised LILCO that the $150,000.

advancement would be returned because of the " apparent conflict of interest in the acceptance of any funda from LILCO for the purpose of preparing an emergency _ plan (see letter dated February 19, 1982 from Lee E. Koppelman, Director of Planning for Suffolk County to LILCO). On March 23, 1982 the SuffolkPlanning County County Department Legislature passed a. resolution authorizing the Suffolk to prepare a new emergency plan which was to be submitted to the Legislature for its consideration (Resolution 262-1982)

On February 19, 1982, the COUNTY advised LILCO that the S150,000, advancement would be returned because of the " apparent conflict of interest i

in the acceptance of any funds from LILCO for the purpose of preparing an emergency plan (see letter dated February 19, 1982 from Lee E. Koppelman, Director of Planning for Suffolk County toLILCO). On March 23, 1982 the Suffolk County Planning County Department Legislature passed a resolution authorizing the Suffolk to prepare a new emergency plan which was to be i

submitted to the Legislature for its consideration (Resolution 262-1982) i The Planning Department, in accordance with the Legislative directive, submitted a RERP in December 1982. -

l were held by the Legislature to consider the PLAN in January,A number 1983. of public The hea Legislature, with the concurrence of the County Executive, Peter F. Cohalan decided not to approve, adopt or implement any RERP for Shoreham. The reason given for this action was that ...

!Since) no local radiological emergency response plan for a serious nuclear accident at Shoreham will protect the 3

health, welfare, and safety of Suffolk County residents, the County's radiological emergency planning process i

is hereby plan terminated, for response to an and no localatradiological emergency accident j the Shoreham plant i-shall be adopted or implemented . . .

the health, (S]ince no radiological emergency plan can protect welfare, and safety of Suffolk County resi-i i

dents and, since no radiological emergency plan shall be adopted or implemented by Suffolk County, the-County Executive is hereby directed to assure that actions taken 1 .

3 1

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3 by any other governmental anenc~ be it State or Federal, are consistent with the decisich mandated by this Reso-lucion."

-(Resolution 111-1983).

The Governor of New York, after reviewing the results of a study by the Marburger Commission, an independent committee appointed by the Governor to study the Shoreham situation, announced that no RERP for Shoreham would be adopted'or implemented by the STATE.

THE LILCO* TRANSITION PLAN LILCO, interpreting the COUNTY's refusal to adopt a plan as a derogation of its responisbility under Article 2B of the New York Execu-tive Law, submitted its own plan to the NRC. The PLAN has been desig-nated "The Lilco Transition Plan". (PLAN)

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

Ths PLAN is contained in four volumes. One volume is entitled "Shoreham

- Nuclear. Power Station - Local Offsite Radiological Emergency Res'ponse Plan". Two volumes are entitled ".0ffsite Radiological Emergency Response Plan". The fourth volume is designated as " Appendix A - Evacuation Plan". 1 Highlights of the PLAN which would be utilized in the event of

a. radiological accident may be outlined as follows:

1. The organization which is primarily responsible for imple-menting the PLAN is known as the Local Emergency Response Organization (LERO). This group is composed of over 1,300 LILCO employees and con- ,

sultants. *

2. The Director of LERO, a LILCO employee, would have the primar' responsibility for the coordination and implementation of the PLAN. He 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.

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.

b) The transmittal of messages on an Emergency Broadcast System (EBS).

c) The transmittal of signals on tone alert radios.

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7. The to protective m~easures to be taken, instruction of the public by means of EBS evacuation of the EP7.. includinr selective and gereral i

S.

evacuate Imphe=cntationoftrafficcontrolmeasuresinorderto following: the public along specified routes.

These measures include the S

ah The conversion of a two mile sterch of a two-way road into a one-wav road, b) The piccomenticf roadblocks to cordon off thc immediate plant area.

3 c) The placement of 193 traffic guides at 147 traffic

) control points throughout the EPZ. These traffic guides, by the utilization of cones and hand signals, will channel traffic along the designated evacuation ceeding along routes and discourage traffic from pro-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"

.s 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 evacuatpon routes.

10.

roadway by towThe removal of stalled cars and other obstacles frem the trucks.

11. The formulation of protective action recommendations uhich are to be broadcast to the public present in the ingestion exposure path-way. Th,ese recommendations may include the following:

O, a) The placement of dairy animals on stored feed.

b) The removal of dairy ' animals from contaminated fields to shelters.

', c) The withholding of foodstuffs and milk from the market.

>r 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 prior to consumption.

f) The suspension of fishing operations.

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

i 5

THE CATALYST FOR Tile INSTANT PROCEEDING The Atomic Safety and Licensing Board (ASLB), an administrative panel of the NRC, has been and still is in the process of conducting hear-i nr.s to determine if the plan complies with NRC standards and is capable cf being implemented.

LILCO has represented to the NRC that it may lawfully implerent its PLAN and that neither State nor Federal law prevent LILCO from perform-ing the functions described therein. The STATE, COUNTY and TOWN have advised the NRC that LILCO lacks the legal authority to carry out i.s 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 body charged with the initial reviews of RERPS, has advised the ASLB that it cannot determine whether the LILCO PLAN can be implemented until the legal authority issue has been resolved (see Letter of Richard '.f. Kreiner, Assistant Associate Director, Division of Emergency Preparedness and Engineering Response, NRC). .

The Chairman of the ASLB, after listening to all sides end considering FEMA's views, determined that the ten legal contentior.s 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 seeking a declaration that LILCO did not have legal authority to execute its PLAN was commenced by the STATE and COUNTY in the New York State Supreme Courts. The COUNTY's complaint alleges that LILCO's implementation of its PLAN would be un'.aw-ful, illegal and a usurpation of the police powers of the STATE. The COUNTY specifically mentioned that the execution of the PLAN would violate the New York State Constitution, the Municipal Home Rule Law and the Executive Law. The STATE similarly alleged that LILCO is precluded from exercising the functions mentioned in the PLAN. In addition, the STATE cited that the implementation of the PLAN would be violative of the Transportation Corporations Law, the Business Corporations Law, the Vehicle and Traffic Law' the Public Health Law, the Agricultural and Markets Law and the Penal Code.

LILCO did not serve an answer but immediately meved 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-diction of the federal courts. The STATE and COUNTY filed motions for a remand of their actions back to the New York State Supreme Court. The Federal District Court ruled that LILCO's federal law claims and its invoca-tion of the federal preemption ary,ument that e mid be rair.ed in a sta:e ecur: proceedin: const i tut eil ..iii rr at .c a. fc. t.

(nu . v. ! ! ! e.,;

of suffolls v. 1J f. 1 . : :.ca . CV St. c. a:. : .

1218, CV-8 4 - 14 0 5, 1.D N . Y . , .iun .- 15 7 117'.-

On thisAu;:ust Court 14, 1984, t ! . STAT.: and C00:TY .wtienu 1:ere c on s.: o l ...; ;. e e in with a :~ ir:ilar act ion for d. ci. .irery jud"nent the Toh'N in : lay 19S4. ,

cca. .enes :t 1.j 1.11.; 0 r et . e. .. i:: r..:ien te .!i: . i: - t he enmplaint: ,

!.c

,,r o u n.h I h.it rhi,s'our, dec:, n.it have rub.;et t :'a t tw- iuritdiction 1 e.

.v jceu:.t c::u o f. c..ei .rb  ! . cen t ro. esy i: present .md the complaint - fa il to : .:te i . in . a JU::T1 Cl Afil?: C0':T:;0'.'!:it S Y '.'

li . a1 l.11. 0 r:.tiat a ins that na real di:.put e e:.:i s t : cencernian; i t..

o

..it h rit y to aet in the ' vent of an erir cus" l ee.mue ::a 1 .i..t . a rs bc:..e. u1 a "hypot.hetieal r. i a i n t : f.

c. n.i r i r." th n will i vver occu:

i. it "; nothet ica] recaaria", accordine to wi.11 re,s pond to a radiological emergency ar. Shorchim.1 I!.C0 is tha the ut? lir y 1cr elaims that "in fact 1.II.C0 holdly pr.-

evsnt of an actual caernency at:ew York and Suffolk Ccunty would respond in the

eenario" in the co:.:p l a i n t that "Lilee Shorehar" and thus the "hypothe;ic"al act!.itles" is moet. alone would perform thc contested 1.1 LCO ':

hypoths t ical scenario ca' aracterl a: ion of :.he complaintr. as bein;; h.. sed on a bute.1 to "vishful t hinkising". without any basis in fact and can only be attri-One does not have to be a genius to ascer-tain that the issue pre ented by these ictions is the legal authority of 1.li.CO till not to e.secute the Pi.AN and not whether the STATE or COU:'TY respend to a radioloc,ical cr.:ery,ency at Shoreham.

h' hat cler..ent s of a just ici.iblecons,titutes a justiciable

• controversy? The necersary and a present dispute controvery are a icp. ally protected interest

v. County of Suffolk, 112 Mi s e , .!d 65 , t.4 7 N. Y. S . 2d aff'd. 3 5 5,(Davis 42 Construction Cory.

bl9; Board of Co-Operat.ive Educat.ional Ser" ices,A. D.Nassau 4 6.. ::.v.Y . S . .!d 2T813,County Goldii

'the G A.D.2d instant matter.

.TT'~J28 N.Y.S.2d 9>S. Yhese elements are ;iroen t in their governmental powers The plaintiffs are not have an interest in insuring that claims that it has a ripht usurped by a private corporation. LILCC l' LAN . How can anyone say thatto exercise the functions mentioned in the a bona fide controversy does not exist?

is the bestThe Court is of the opinion that the declaratory judgment action following language of the Courtvehicle to solve the controversy herein as attested t of Appeals in the case of New York Public Interest at Research Group, Inc. v. Carey, 42 N.Y.2d 527, 399 N.Y.S.2d 621 page 623:

".because

. .The need of theforactions judicial intervention is obvious when ,

of one of the parties, a dispute arises as to whether violation of the law. Then there has been a breach of duty or rights and obligations of thethe courtsand parties, can ifdeclare a breachthe is found, compel compliance, order appropriate action to be taken. award damages or otherwise 7-

That is the traditional, but not the.only way in which a

thegenuine courts.legal dispute may arise or be resolved by For instance, when a party contemplates taking certain action a genuine dispute may arise before any breach or violation has occurred and before there is any need or right to resort to coercive measures. In such with thea case all that may be required to insure complian ce obligations lawofistheforparties the courts to declare the rights and so that ingly. That they may act accor,d-is the theory of the declaratory judgment actions256 Yards, authorized N.Y. 298, by CPLR 3001 (Janen v. Alderton Dock 176 N.E. 401; Siegel, Practice Commentaries.

3001, pp. 355 357: McKinney's Cons. Laws of N.Y., Book 7B, CPLR par. 3001.0_': 3 Weinstein Korn Miller, N.Y. Civ.Prac.,

L Rev., pp.1 3). Borchard Declaratory Judgments, 9 Brooklyn it s - PLANThe controversy is real and present. concerning LILCO's legal authority to implement what th' Resolution of the dispute will determine usurped by LILCO's PLAN.e police powers of the STATE entail and if those powers ha ment the PLAN operating license at will have a significant bearing on its application for a Shoreham.

at . stake in this proceeding. The The~

Courtinterests can not of the parties are clearly of-'a' justiciabic controversy in a declaratory which is ripe for a judicial determinationenvision a bett judgment action.

THE ISSUE LILCO, pursuant to Section 3211(a)(7)as previously mentioned, moved to dismiss the complaints plaints fail to state c cause of action.of the CPLR on the ground that the com-York law does not prohibit it LILCO contends that (1) "New the com from performing the activities menticned in allege, plaints; and (2) if state laws "were construed as plaintiffs States Constitution and by federal statues and regulations."they i

October 4, The Court, at the behest of the parties, issued an order dated legal authority 1984 towhich limited the issue to be decided to that of LILCO's implement York. The parties have submitted the pleadings,its PLAN under the laws of th arguments before the Court, affidavits, the PLAN, volumino trans cripts of their oral documents facts are inand there is no need to hold a hearing as none o,us dispute. briefs f the and material and the issue involved is described as follows:A synopsis of the posture of facility, must LILCO, in order to obtain a license to operate its Shoreham submit a plan for responding to a radiological accident which the NRC finds is adequate and capable of being implemented. LILCO has submitted a PLAN to deal with a radiological emergency at Shoreham.

The plaintiffs have challenged LILCC's legal capabilities to perform the L_ i

functions contained usurpation in the police of t he STATE's PLAN. and maintain that the PLAN amounts to a powers. The proposed functions are undisputed and set forth at great length in LILCO's four volume PLAN. The

ccality of LILCO's performance of these functions under the law.s of

-the State of New York is before this Court for a resolution.

-Tile POSITIONS__

LILCO's lasic premise for its view that it has a right to implement the PLAN under the laws of the State of New York 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 from performing the necessary functions to protect the public.

To the contrary.. Article 2-B of New York State Executive State that Law, Sec. 20.1.e. takes it the policy of the State and local-plans, organization arrangements, and response 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 an'd 27_of the minutes in the following concise manner:

"Under the LILCO view, as 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 It bases its contention on two grounds. toFirst, an exercise the-PLANof"does policenot power.

propose to, and will not, to anyone or-anything."

use force or the. threat.of force to compel obedience 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 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 STATE's police power and thus is prohibited under New York State Law.

9

THE STATE'S POLICE POWER A resolution of the controversy hcrein necessarily involves a discussion of the source, 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 perogative of state sovereignty (Teeval Co. v. Stern, 301 N.Y. 346, cert. den. 340 U.S. 876) . The Tenth Amendement to the Constitution of the United States specifically provides that the exercise of the police power for the general welfare of the public is a right reserved to the States (Brown v. Brannon, 399 F. Supp, 133, aff'd, 535 F 2d 1249). This principle has been affirmed by our Courts even before the turn 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 essen-tial power (People v. Bibbia, 262 N.Y. 259, aff'd, 291 U.S. 502). Nor l

can one dispute that the protection and safety of persons and property is unquestionably at the core of the STATE's police power (Kelly v. Johnson, 425 U.S. 238). Our courts have continually and consistently ruled that the protection o'f 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. Morris, 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 exercised by the STATE or by governmental subdivisions upon whom the State Constitution or State laws confer such power. In fact, municipal corporations, who are creatures of state law and whose sole purpose is to perform governmental functions, have no inherent authority to exercise police powers. These municipal corporations may only exercise the police power which the State Constitution or the State Legislature con-fers upon them (Rochester v. Public Service Commission, 192 Misc. 33, 83 N.Y.S.2d 436, aff'd. 17 A . D . 172, 89 N.Y.S.2d 545, aff'd.301 N.Y. 801; People ex rel Elkind v. Rosenblum, 184 Misc. 916, 54 N.Y.S.2d aff'd.

- 269 A.D. 859, 56 N.Y.S.2d 526).

POLICE POWER = POLICE POWER A brief study of the PLAN, as outlined by this Court, indicates the basic activities LILCO intends to perform in the event of a radiolocical accident at Shoreham.

steps they should take to protect themselves.It intends to declare an em a major, full-scale evacuation of a 160 square mile area.LILCO intends to manage close public highways, re-route traffic and direct It intends to health within a fifty mile radius of the nuclearLILCO facility.Th intends to overseewhen to-decide evacuation centers for more than 100,000 people.

and in what It intends in previously contaminated areas. fashion citizens may return to their homes LILCO maintains that functions and that its proposed " management" of the evacuation of th residents of Suffolk County would not police power. involve an exercise of the STATE's What is the basis of LILCO's assertion?

Two reasons are advanced by LILCO for its stance. First, LILCO does not propose to use force or the threat of force to compel obedience to its recommendations.

is-regulation activity.and the ability to incarcerate persons who engage hibited logical emergency in carrying outLILCO is merely planning for and responding lating an emergency response. the functions in the PLAN and not regu-The position _taken by LILCO is untenable.

will not: issue traffic tickets or arrest someone is The fact that LILCO of little significance The exercise of governmental functions does not necessarily require the imposition of Branden of penalties Shores, Inc.as

v. indicated by the following language in the case Incorporated Village of Greenwood Lake, 68 Misc.2d 343, 325 N.Y.S.2d 957 at page 960:

"The term " police power" has often been defined as that power vested in the Legislature to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, with penalties or without, not repugnant to the Constitution, as they shall judge to

.be for the subjects ofgood and welfare of the commonwealth, and of the same.

> Whatever affects the peace, good order, morals its scope."

and health of the community comes within coercion isFurthermore, incorrect. the bold statement that the PLAN is devoid of any Does turning a two-way street into a one way stree 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 with the route set out in the PLAN?

Does LILCO REALLY believe that its declaration of an emergency and

, . evacuation on the emergency broadcast channel is any less compulsive 1 because the directive will not be enforced by a threat of incarceration? ,

j that its own LILCO's regulation theory is likewise without merit. It claims actions do not " regulate emergency responses" but rather

-consist of " planning" for and " responding" to a radiological emergency.

J I.f i.CO , in " planning" for a vmliolonical emernincy woulil in e f fect in-performing functions that are governmental in nature. In " responding" to a radiological emergency, the utility would undertake to perfccm acti-vities that are reserved to the STATE and its political subdivisions.

In fact, the Courts of the State have recognized that the func-tions LILCO intends to perform fall within the STATE's historic police power. See, eg. Yonkers Community Development Acency v. Morris, 37 N.Y.2 478, 373 N.Y.S.2d 112 (1975), app. dismissed, 423 U.S. 1010 ( I Vi3 )

(matters concerning the public health, safety and welfare are within the State's police power): Royce v. Rosasco, 159 Misc. 236, 287 N.Y S. 692 (1936) (abatement of public emergencies is within State's police power).

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

("It has long been recognized that the power to regulate and control the use of public roads and highways is primarily the exclusive prerogative of the States."); Tornado Industries, Inc. v. Town Board of Oyster Bay, 187 N.Y.S.2d 794 (1959) (control of traffic is a matter within the police power); City of Utica v. Water Pollution Control P,e n r d , 6 App.Div.

340, 177 N.Y.S.2d 47 (1958), aff'd., 5 N.Y. 2d 164, 152 N.Y.S.2d 384 (195 (control of water pollution is within the public power); Sec. ;cnerally, N.Y. Const. Art. I, sec. 6, notes 681-909 (McKinney)).

No amount of semantics can change the true meaning of th[

activities which LILCO proposes to perforn in the event of a r.,Jiale-ica'.

accident at Shorcham. No amount of . inh can cever up or blo: r .- '. fact

t. ha t 1.II.CO's " intended functions" are inhe ren t l y  ;..~/e cmen t: 1 -

. e and fall clearly within the ambit of the STATE's police power.

THE DELEGATION OF POLICE PO.!ERS Does LILCO have any statutory authority to execci::e th. ic.:ti--

contained in.the PLAN? How are the STATE's police po.er.s delen . .. . . .. -

any of these powers been delegated to LILCO?

(a) TO LOCAL GOVER:<ENTS The COUNTY, TOWN and other local governmental subdicisi.,n a cc been delegated "nearly the full measure of the STATE's police pr zer -

the State Constitution and various State statutes" (iiocener . Cc..-

of Eric, 497 Supp. 1207). Article 9, Section 2 of the New Yerh c;. :

Constitution is the primary source for the authority of local covernments to exercise the police power. Section 10.la(12) of the Municipal Home Rule Law expressly delegates police power to governmental units by. con-ferring authority upon them to " provide for the well-bcyng of persons or property therein." Thus, these constitutional and statutory provision in of themselves, authorize the COUNTY and TOWN to exercise the FTATE's police power.

(b) TO PRIVATE CORPORATIONS The Court has been unable to find any provisions in the State Constitution or State statutes which authorize LILCO or any othe privacc corporation to exercise any portion of the STATE's police power.

In fact, any attempted delegation of polico power to LILC0 would cr_..:.

12 -

to an unlawful delegation of governmental powers (See 20 N.Y. Jur. 2d,

" Constitutional Law" $183). A governmental unit can not bargain away its police power to a private party or organization (Beacon Syracuse

' Associates v. City of Syracuse, 560 F. Supp. 188). Governmental functions and responsibilities cannot be surrendered.by contract where police power, public safety and welfare are involved (Patrolmen's Benevolent Ass't..

v. City of New York, 59 Misc.2d 556, 299 N.Y.S.2d 986). ~

2 CORPORATE POWERS LILCO is nothing more than a creature of the STATE. Corporations, unlike natural persons, possess only those powers that have been conferred upon them by the state of their incorporation (14 N.Y. Jur. 2d " Business Relationships, $340). . Corporate powers do not exist merely because they are not expressly prohibited.

A valid basis must be demonstrated for the existence of a claimed contested power under the laws of the state under which the corporation has been created. (See 6 Fletcher, Cvelopedia of Corporations $2476 - 2486, Rev. Perm. ed. 1979).

The express powers which LILCO possesses are set forth in Section 11 of the New York State Transportation Corporations Law and Sec-tion 202 of the New York State Business Corporation Law. What express-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 ~ electricity for heat or power to light public streets, places and buildings. In addition, such corporations are empowered to acquire and' dispose of necessary machines and to transmit and distribute electricity through suitable wires and other conductors. Such corpora-tions can use streets, public parks and public places to place their poles, pipes and fixtures, but only with the consent of the municipal authori-ties. These corporations also have power to acquire real estate, for corporate purposes, but only in the manner prescribed by the eminent domain procedure law. Thus, even in areas necessary to the conduct of their businesses, utilities can act only under express legislative grants of power and with the consent of municipalities.

Section 202 of the Business Corporation Law sets forth sixteen general powers which are common to all corporations incorporated pursuant to the laws of the State of New York. For example, the power to sue and be sued, to hold property and to make contracts. i to implement Thus none of these express powers bestow upon LILCO the authority its PLAN. Nevertheless, LILCO is undaunted by its inability ,

to point to a specific grant of power in either the Transportation Corpora- 1 tions Law or the Business Corporation Law which would lend credence to its claimed authorit

" implied powers"y t:o implement the PLAN. Instead, LILCO seeks to rely on which existed at common law and is now codified in Sec-tion 202 (a)(16) of the Business Corporation Law. The latter provides that a corporation has "all powers necessary or convenient to effect its corporate purposes." LILCO states that one of its corporate purposes is to create and sell electricity and thus it has the power to build or oper-ate a power. plant such as Shoreham. .The operation of Shoreham, according to

- -.m- . ,-=.m.. -

LILCO, is conditioned upon the existence of an adequate offsite emergency

. plan, Thus LILCO reasons that it has the implied power to implement the PLAN in furtherance of its corporate powers.

LILCO's view of the scope of implied corporate power has no limit. Furthermore, it has no support in the cases which LILCO has put forth as supporting its theories. For example, it cites the following four cases which held:

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

3. That a construction company may also perform related professional engineering services (John B. Waldbilling, Inc. 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).

4. That a corporation may make payments under a "non-comp ~ete agreement,. pr.ovided 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 clair of authority to declare an emergency and assume responsibility for the evacuation of over 10,000 people on the basis of these cited cases.

Likewise, the Court is at a loss for LILCO's reliance upon a 1901 case, City Trust Safe Deposit and Surety Co. of Philadelphia v.

Wilson Manufacturing Co., 58 A.D. 271, 68 N.Y.S. 1004 for the proposition that "it is difficult to say in any given case that a business act is not within the powers of a corporation." Ironically, the City Trust case did not even involve New York State Corporate Law. Defendant, a West Virginia corporation, sought to avoid an indemnity agreement previously given.

2 It argued that its act was "ulta vires" under the laws of West Virginia, but it failed to offer any evidence as to the West Virginia Laws. The court held that, absent such evidence, defendant could not avoid its contractual obligation.

Does LILCO sincerely believe that a judge writing a decision in -

1901 would have considered that the direction of traffic er the declara-tion of a public emergency constituted a " business act" as the term was

. employed in the City Trust case?

LILCO is mistaken in its view that the power to undertake actions necessary or convenient to effect its corporate purposes has no bounds.

A corporation lacks power, express or implied, to engage in activities which are contrary to public policy (State of New York v. Abortion Information Agency, Inc., 37 A.D.2d 142, 330 N.Y.2d 927, aff'd. 30 N.Y.2d 779, 339 N.Y.S.2d 174). The implemntation of the PLAN amounts to an

exercise of the police power. The latter can only be exercised by the STATE and upon proper delegation, the municipalities. The exercise of such power by LILCO would accordingly violate the public policy of this state.

THE EXECUTIVE LAW ARTICLE 2B LILCO claims that the activity which it proposes to take under its PLAN is directly supported by New York State Executive Law, Article 2B.

This law is entitled paredness" " Stateinand and is found Local Natural Sections 20 - 29 and of theMan-Made ExecutiveDisaster Law. Pre-What doesWhat the lawwas th'e intention of the Legislature in enacting this law?

provide.

powers held Article by the2B of the Executive Executive Peanch of Law Stateinvolves the distribution of Government. It clearly expresses the intention of the Legislature to confer the STATE's power to plan for and to respond to disaster situations solely upon State and local government.

It establishes a framework for state and local co-operation in planning and preparing for emergency responses to all kinds of disasters including nuclear accidents.

Thus, this Statute creates a state agency, the Disaster Preparedness 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 effectuate these functions.

The Court, no matter how many times it has read and re-read Article 2B, could not find any authorization for LILCO, express or implied, to exercise the STATE's police powers in emergency situations. What is thetobasis it of LILCO's implement claim that Article 2B of the Executive Law authorizes its PLAN?

LILCO rests its claim of authority upon two sub-paragraphs, Section that constitutes and 20-1(a) Section 20-1(e) the preface contained to Article in the statement of policy 2B. Section of the Executive Law provides as follows: 20 of Article 2B

"$20. Natural and man-made disasters; policy, definitions

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

a. local government and emergency service organizations continue their essential role as the first line of defense in times of disaster, and that the state provide appro-priate supportive services to the extent necessary;

b. local chief executives take an active and personal role in the development and implementation of disaster prepared-ness programs and be vested with authority and responsibil-ity in order 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 pro-tection and benefit to the people; I

d. state resources be organized and prepared for immed-iate 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 response capability required to execute the provisions of this article shall circumstances be theresources and existing most effective allow. that durrent

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

a. " disaster" means occurrence or imminent threat of wide spread or severe damage, injury, or loss of life or property resulting from any natural or man-made causes, including, but not limited to fire, flood, earthquake, hurricane, tor-nado, high water landslide, mudslide, wind, storm, wave action, volcanic activity epidemic, air contamination, blight, drought, infestation, explosion, radiological accident or water contam-ination,

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

c. " municipality" means a public corporation as defined in subdivision one of section sixty-six of the general construc-tion law and a special district as defined in subdivision sixteen of section one hundred two of the real property tax law.

d. " commission" means the disaster preparedness commission created pursuant to section twenty-one of this article,

e. " emergency services organization" means a public or pri-vate agency, organization or group organized and functioning for the purpose of providing fire, medical, ambulance, rescue housing, food or other services directed toward relieving human suffering, injury or loss of life or damage to property as a result of an emergency, including non-profit and govern-mentally-supported 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) a mayor of a cit lage has a manager,y or village, it shall except mean such whereand manager; a city or vil-(4) a supervisor of a town, except where a town has a manager, it shall mean such manager.

16 -

This Section states general STATE policies including the proposi-tion that " local government and emergency 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 relieving human suffering, injury or less of life or damage to property" such as fire, medical, ambulance, food, housing and similar rescure ser-vices.

These private emergency service organizations have not been dele-gated in any way, shape, manner or form to the governmental functions which the PLAN contemplates. The Legislature, if it intended to delegate the broad-scale powers LILCO claims, would have done so in clear explicit language in the substantive portions of Article 2B which presently only i

confer these powers upon state and local governments.

CONOLUSION These d claratory actions which arise out of LILCO's attempt to sec'ure approval of its utility sponsored PLAN clearly present a justi-ciable controversy and the complaints do state a cause of action. The limited issue of LILCO's authority to implement its PLAN under the laws of the State of New York does not involve nay disputed questions of fact.

LILCO, as previously mentioned, intends to execute the PLAN solely with its own employees and intends to carry out activities which are inherently governmental in nature. These powers have been solely con-ferred upon the STATE and its political subdivisions. LILCO, a prizate corporation, is a creature of state law and only has those powers which the

$ TATE has conferred upon it. These powers, express or implied, do not include the right to exercise governmental functions.

There is a paradox which is present in this controversy and involves the philosophy of the creation of our government. In order to

-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 ideas of the English political phDWsophers.

The most influential of these philosophers upon the founding fathers was John Locke (See Clinton Rossiter, "1787: The Grand Convention",

[MacMillan, 1966]).

Locke, an avid opponent of the divine right theory of government, put forth his ideas about the creation, purpose and powers of government in his " Treatise of Civil Government" written in 1689. His ideas, for the purpose of this discussion, may be summarized as follows:

z -

1. Individuals originally existed in a state of nature.

Each individual had the right to do whatsoever was necessary for his preservation and the right to pnish those who commited crimes against the laws of nature. Locke called these rights the " supreme powcr".

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

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

3. The community is created for the purpose of establishing a government, which is accomplished by means of a trust. This means that government only enjoys a " fiduciary power". Thus the community does not surrender the "sopreme power but merely entrusts it to government.

4. The powers of government are limited. Government is acccu-able to the community. The community, if government breaches its trust, had a right to " appeal to the heavens". This latter phrase meant the rig of revolution (our founding fathers substituted the right to change governments by means of a free election for Locke's right of revolution).

What is the paradox?

The STATE and COUNTY would be breaching their "fiduci..ry" duty to protect the welfare of its citinens if they permitted a private ccrp:

tion to usurp the police powers which were entrusted solely to ther by the community. LILCO has to realize that this is a government of law ar.d not of men or private corporations (See John Adans " Draft Ma s sa chuse t t s Constitution, Declaration of Richts. ART XX . 1779).

On the other hand, the STATE and COUNTY maintain that they exercised their police powers in order to protect the ccmmunity in their determination not to adopt or implement any emergency plan for Shorehar because of the " impossibility" to have a " safe evacuation" in case of a nuclear accident. LILCO asserts that this position is nothing more than

- a " sham" and amounts to a breach of the STATE's and COUSTY's duty to prt-tect the citizens in case of a nuclear accident at Shoreham as envisioned by Article 2B of the Executive Law. LILCO is in effect reminding the STATE and COUNTY governments that "Non est Princeps Super Leges, Sed Leges Supra Principem" (The Prince is not above the Laws, but the Laus above the Prince, Pliny the Younger, " Panegyric of Trajan" Sec. 65 100 A.D.).

/

There is no need to resort to a revolution o: the usurpation o:

governmental powers by LILCO if there has in fact been a breach of a trus-by the STATE and COUNTY. LILCO can test this matter in another tribuna'.

by commencing an action in the nature of a writ of mandamus or in the arc:

of public opinion which manifests itself by the results of an election.

Settle judgment on notice. , f-

, 14 .- mm

. J.S.C.

18 -

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SUPREME COURT OF THE STATE OF NEW YORK ' ' " l "

-' '"I ' 5 COUNTY OF SUFFOLK . C" # C I'"DIA' E' 'fd MARIO M. CUOMO,

)

)

Plaintiff, )

)

-against-

) .

)

LONG ISLAND LIGHTING COMPANY, )

)

Defendant. ) '

COUNTY OF SUFFOLK, ) Consolidated

) Index No. 84-4615

)

Plaintiff, )

)

-against-

)

)

LONG ISLAND LIGHTING COMPANY, )

)

Defendant. )

)

TOWN OF SOUTHAMPTON,

) PARTIAL

) DECLARATORY JUDGMENT Plaintiff, )

)

-against

)

)

LONG ISLAND LICHTING COMPANY, ) -

)

Defendant. )

)

Plaintiff, Mario M. Cuomo, having filed a Complaint for Declaratory Judgment on March 8, 1984 in the Supreme Court for the State'of New York, Albany County, seeking T declaration (i) that Long Island Lighting Company's ("LILCO") implementation of an offsite emergency response plan (the " Transition Plan") for its Shoreham Nuclear Power Station would be in violation of New s..

. ', ~

l York State law and (ii) that LILCO lacked legal authority to implement the Transition Plan; and Plaintiff, County of Suffolk, having filed a Complaint on March 8, 1984 in the Supreme Court of New York, Suffolk County, seeking a declaration that LILCO's implementation of the Transition Plan is unlawful and illegal under the Constitution and laws of New York State; and

c. -r e

LILCO having moved to dismiss both actions on April 6,'

1984; and LILCO having removed both actions to the U.S. District Court for the Eastern District of New fork; and Plaintiffs thereafter having moved to remand both actions to the New York Supreme Court; and By Memorandum and Order dated June 15, 1984, the U.S.

District Court for the Eastern District of New York (Altimari,' ~

J.) having granted Plaintiffs' Motion to Romand; and Plaintiff, Town of Southampton, having filed a Verified' Complaint on May 16, 1984 which sought a declaration (i) that 2-

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1

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I i

LILCO's implementation of its Transition Plan would be unlawful ,

1 and illegal under the Constitution and laws S of the State of New l l

. York and (ii) that LILCD lacked the legal authority to under-  !

take such action; and Defendant, LILCO, having moved to dismiss Southampton's Complaint by Notice of Motion dated June 29, 1984; and .

Following remand of the Cuomo and County actions to -

this Court and upon stipulation of all parties, the actions fil'ed by Plaintiffs Cuomo, County of Suffolk and Town of Southampton having been consolidated in the Supreme Court of the State of New York, Suffolk County, as Consolidated Index No. 84-4615; and LILCO having renewed its Motion to Dismiss Plaintiffs' actions on August 13, 1984 pursuant to Section 3211(a)(2) and (7) of the CFLR on the ground that (i) the Court lacked subject matter jurisdiction because the actions did not present a justiciable controversy and (ii) the Complaints failed to state a cause of action because New York law did not prohibit LILCO from performing thu functions set forth in the Transition Plan; and p@ *,_-+

7-- mo i

1 Plaintiffs having filed a Cross Motion pursuant to Sections 2215 and 3211(c) of the CPLR re, questing that the Court (1) treat LILCO's pending Motion to Dismiss as a motion for Summary Judgment and (ii) grant summary judgment in favor of Plaintiffs; and All parties having entered into a Stipulation to make a _

part of the record in this case LILCO's Transition Plan (Revision 3) consisting of: (1) a volume entitled "Shoreham 2 Nuclear Power Station -- Local Offsite Radiological Emergency ' .-

Response Plan"; (ii) a two-volume set designated "Offsite Preparedness Implementing Procedures" and (iii) a volume entitled " Appendix A -- Evacuation Plan"; and Plaintiffs having submitted the Affidavits of Martin Bradley Ashare, Esq. dated September, 1984, Gregory C. Minor dated September 5, 1984, and Fabian G. Palomino, Esq. dated September 12, 1984 in support of their Cross Motion for Summary Judgment; LILCO having submitted the Affidavit of Matthew C.

Cordaro dated August 13, 1984 in support of its Motion.to Dismiss; and all parties have agreed in open court that (i) for purposes of addressing the LILCO Motion to Dismiss based on the lack of a justiciable controversy, the Court could, if necessary, look to the pleadings and affidavits' filed by the

, g-

'. i parties as to whether the State of New York and Suffolk County would, in fact, respond to a radiological emergency at Shoreham, and (ii) for purposes of resolving any material issue of fact which might exist as to whether LILCO, in implementing its proposed Transition Plan, would be undertaking actions which might be characterized as the exercise of compulsion, and therefore the exercise of impermissible governmental police power, the Court could look to the text of the Plan itself and the affidavits submitted by 'the parties, and (iii) that other_

wise, there were no material facts in dispute with regard to issues presented by LILCO's Motion to Dismiss; and A pretrial conference having been held on September 18, 1985 for the purpose of determining which issues should be addressed in further briefs, with Plain. tiffs arguing that all issues, including questions of federal preemption, should be .

briefed and resolved simultaneously, and LILCO arguing that

, LILCO's Motion to Dismiss based on (i) lack of a justiciable controversy and (ii) LILCO's authority under state law to carry out actions contemplated under the Transition Plan should be resolved prior to consideration of any other issues raised, including federal preemption; and By Order dated October 2, 1984, the Court having

-s j

determined that it would dispose of the issues presented N

• separately and would first address the justiciable controversy issue and the issue of LILCO's legal authority under State law to carry out its Transition Plan; and Pursuant to that Order, all parties having submitted extensive Briefs, Memoranda and supporting exhibits and having had a full opportunity to be heard on the issue of LILCO's -

legal authority under State' law to carry out its Plan; and

, This Court having heard oral argument of the parties on January 15, 1985; and All parties having had a full opportunity to be heard, the court, upon consideration of the.LILCO Trannition Plan and the pleadings, stipulations, affidavits, briefs and arguments ,

a of the parties, having rendered a decision on February 20, 1985

. denying Defendant's pending Motion to Dismiss and granting par-tial summary judgment in favor of Plaintiffs and against Defen-i 4

dant in each of the consolidated cases, and directing settle-ment of judgment;

\

NOW, on motion of Martin Bradley Asharee County Attorney,CountyofSuffolk,andKirkpatriAk&Lockhart,

I 1 Attorneys for Plaintiff, Suffolk County, Fabian G. Palomino, Special Counsel to the Governor of New York State, and Robert Abrams, Attorney General of the State of New York, Attorneys for Plaintiff, Mario M. Cuomo, and Twomey, Latham and Shea, Attorneys for Plaintiff, Town of Southampton, and over the objection of Hunton & Williams, Attorneys for LILCO, to the . .

entry of this Partial Declaratory Judgment, such objection being duly noted, it is .

ORDERED, ADJUDGED AND DECREED:

1. The Court declares that a justiciable controversy exists as to whether LILCO has legal authority under state law to execute the Transition Plan. ,

2. The Court declares that by reason of operation of Executive Law Sections 22(3)(b) and (c), 23(7)(b) and (c),

28(1), 28(2)(a) and (b), 28-A; Penal Law Section 195.05; Public Health Law Sections 206(1)(k), 2Ol(1)(r), 201(1)(1), 1110, 206(1)(a); Vehicle and Traffic Law Sections 1110, 1114 1602; Section 30 of the Transportation Corporations Law; and Agricul-i ture and Markets Law sections 16(24), 16(27), (16(35), 71-L, 202-B, and by further reason of the police power inherent in the state and local government pursuant to New York State 1

• I

".- . t---

Constitution Articles III and IX; Municipal Home Rule Law Section 10; and Executive Law Article 2-B, the contested acts, enumerated more fully in the Complaints, contemplated by LILCO in implementing its Transition Plan are acts which are inher-ently governmental in nature and are embraced by the State's r police power, and are therefore prohibited.

. i

3. The Court declares that the New York State -

Constitution, Article IX, Section 2, and the New York Municipal Home Rule Law, Section 10.la(12) delegate the State's police power to local govern.nents, including specifically the County i

and Town.

4. The Court declares that New York State law, including specifically Executive Law. Article II-B, does not delegate the State's police power to LILCO empowering LILCO to implement the Transition Plan.

5. The Court declares that LILCO, as a corporation, possesses only those powers that have been conferred upon it by I the law of the state of its incorporation. The New York State Transportation Corporation Law and the New York State Business l i

. Corporation Law do not expressly or impliedly authorize or em-power LILCO to exercise governmental powers in implementing the i Transition Plan, t

.g. i

P

. - i

6. Defendant's Motion to Dismiss Plaintiffs'

~

Complaints pursuant to CPLR 3211(a)(2) and (7) is hereby DENIED;

7. Plaintiffs' Cross Motion to convert Defendant's Motion to. Dismiss to a Motion for Partial Summary Judgment is ,

hereby GRANTED: -

a*

8. The Court decl' ares that this judgment is a partial declaratory judgment that does not resolve all the issues in l this litigation. Judgment is expressly reserved as to any de-fanses that may be raised, including federal preemption. '

A f'Il ' ' ' * ' '

9. Defendant shall within twenty (20) days?o h y l

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e m of this Partial Declaratory Judgment irc --* =" S r/r/ f l j f.S A N S w t/t *%*

c'erp"12: 3 ceunt: rela.ima and raise ar *-net ;ny d;f;nce r d I// 8 i+ ra 'j k --" u 9:gpending Complaints l ine-ludin; de 1:; ; ef-fede ni y... rt.ien, e..d s1 Tall ill; it: "-=""2ndum of Law in l

st - a*+ +bre;;f, and P1 = 4 a + i f f. .uoli film G4=is Reply Lauf in l Wa*r^" *h="=*^ "ithin tu:nt., '20) J.y; ef se*u4c. nf n. afen ~ ,,-

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ENTER:

N ,

Justice of the Supreme Codrt Suffolk County '

Judgment entered this day of , 1985 Q _

NAR 251985 Clerk 8He A Kin W la Clerk cf Suffolk County D

o I

. i i

o ATTACHMENT 3 r - - m -

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l .

• ATTACHMENT 3 STATE OF NEW TORE EXECUTIVE CHAMBER MARIO M. CUOMO, GOVERNOR Press Office 212-587-2126 i 418 474 8418 FOR RELEiSE:

IMMEDIATE, TUESDAY DECEMBER 20, 1983 3TATEMENT BT GOVERNOR MARIO M. CUOMO Tomorrow, the State will submit the attached brief to the Atomic Safety and Licensing Appeal Board to contest the conclusion that permission to load low power fuel may be granted, even without an adequate and implementable evacuation plan and despite the view of the Licensing Board, that there is no " reasonable assurance" that an emergency off-site preparedness plan will .ever be approved.

In -the near future the State will also participate in the Atomic Safety and Licensing Board hearing on off-site emergency planning issues. The State will oppose any grant of a license to operate the plant predicated solely and en'tirely on the LILCO developed and LILCO implemented plan for evac.uation. I have said repeatedly I believe the LILCO plan does not reasonably assure safe evacuation.

A brief review of some of the underlying circumstanegs '

askes the significance of these positions clear.

The Federal government has exclusive jurisdiction over the question whether Shoreham is safe to operate and can therefore be licensed to open. The applicable regulations require an evacuation plan that is implementable and that will assure the quick and effective movement of the population out of the zone of danger in the event of an accident that threatens to increase substantially the l radiation normally emitted by a nuclear power plant.

The adoption of the Federal evacuation regulations was based on the reality that even under ideal circumstances, the operation of a nuclear power plant poses a clear and always present danger of a radiological accident. Nowhere do they suggest that the efficacy of evacuation preparations should be a relative requirement, affected by economic or fiscal factors. The law -- as it should -- puts saf ety first and does not allow financial considerations to compromise what is irreplaceable -- life and health.

I - more -

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

The* County of Suffolk has said evacuation is im~possible and therefore it has submitted no plan. The State does not have the resources, by itself, LILCO has offered a plan, which to supply the wherewithall l that would be required.

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

of course, if the plant were to be operated and a misadventure were to occur, both the State and the County sould help to the extent possible; no one suggests otherwise.

How ever, government's obligation to respond to a catastrophe should not-be used as an excuse for inviting the peril.

Despite all of this, the Nuclear Regulatory Commission his ruled that its ASLB can approve a request for low power loading without any certified evacuation plan being in existence. The brief to be submitted by New Torig tomorrow is part of the appeal from that decision.

If the State is successful in its opposition, the Shoreham plant will not be allowed to open because it has not met the basic safety requirements set out in the Federal law and regulations. Because the health and safety of our people must come first, we will persist in these objections until we have succeeded or exhausted our legal opportunities.

" It should be noted that my strong feeling as to the inadequacy of the evacuation plans and forces now available prompted me to ask Congress for legislation that would supply us with the resources to make evacuation at all the Stat.n's nuclear facilities more reasonably achievable. For reasons I l

y do not fully un derstan d, that legislation has not been

- vigorously supported by the editorial boards and business ,

interests that advocate LILCO's desire to open Shoreham t despite all its obvious dangers.

l l

- more -

o

pending proceedings Whatever occurs w ith the two it is clear that Shoreham is involving the evacuation plans, it is increasingly clear a long way from opening. Moreover, '

that LILC0 lacked the experience and, skill required to build LILCO's construction probleas' may a

never plantbelike this one.It is also possible -- some say likely --

solved.

that even if Shoreham is licensed, its operations will be interrupted frequently with increasing costs to rate payers.

That would mean that the people would have to pay the price for LILCO's deficiencies repeatedly and extensively for years to come.

Notwithstanding the complexity surrounding this some situation and the 'inhomogeneous* quality of its report, things were not substantially disputed by the Marburger panel. Among them were the following: .

1. The Shoreham project is a mistake which was made years ago and for which we are now being asked to pay. It is probable that Shoreham would not be acceptable as a Free licensable site under current federal siting practices.

to choose, no one would build it again.

preparation, and

2. L il co 's lack of training, credibility with respect to the construction and, management Lilco must be held of the plant is amply established. l responsible for all costs associated with these inadequacies. l 3 The decisions already made by the Governor are l These actions are specifically: my reasonable decision not ones. to impose a State plan upon Suffolk County; my decision to oppose the Lilco ' plan; my' decision to oppose low i

l power loading and my commitment to deal with the whether economic it impact that results from this 10 year old debacle, goes on line or not.

No one can reasonably dispute the primacy o,f the issue of safety here. The only substantial reason being offered I

j for opening the plant in disregard of desire strict application of to avoid the l the evacuation requirements is the I

potential increase in rates that might result from the plant's not going on line.

I believe that although the plant was not the idea or we have the obligation now the error of this administration, to do everything we can to minimize any negative economic l

that result from the Shoreham mistake.

S consequencesseveral Acco rdingly, months ago I assembled a special cabinet level working group headed b */ my Secretary, Michael

- more -

t DelGiudice, with instructions to develop a series of short tera, intermediate and long ters actions to sitigate the impact on rate payers and the Long Island community whether the plant opens or not. They have already consulted with some of the best minds available on ideas to deal with the financial. economic, energy supply and other implications '

deriving from this project. They have talked with investment bankers; apecial legal counsel; financial market analysts; SEO and NYSERDA; the Power Authority, Hydro Quebec, and others, and are now in the process of formulating a series of options for my consideration. At an appropriate point, I will discuss my conclusions with the legislative leaders as well.

My preliminary view of the work being done satisfies se that we will be able to mitigate substantially the financial impacts created by what has been termed by one newspaper as an " epic miscalculation."

Some who are eager to see t'he plant open have expressed their dissatisfaction with my refusal to put aside my reservations and wo'rk aggressively to open the pinnt. My j decisions have been deliberate ones. .

I will not permit the uncertainty about relative economic impact to override what appears to'ae to be the certain responsibility I have to protect the safety and

health of the people. That must be our first concern and I that has been the predicate of all my decisions to date.

6 I

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4 ATTACHMENT 4 4

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4

+ ATTACHMEMT 4 H UNTON & WILLIAM S 707 EAs? MAm STREET P.o. Box 1535 aooo .gn..vovaana avc=wc. m w Racxxown,vamonwsA 20212 a.. ...y .uc

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wa...=ofow o. c aoo . ' tot..omeaie..o .aoo eats.=o= aca .s....oo Taterwong 804 788 8200 vaca s ...yo.

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Martin Bradley Ashare, Esq.

Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1)

Dear Mr. Ashare:

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

In that event [i.e., Shoreham becomes radioactive], the county has a duty and responsibility to provide for the health and safety of the residents near the plant.

I write to ask if, in fact, the County Executive will respond fully, in cooperation with LERO, to protect the public health and safety in the event a radiological accident occurs at Shoreham.

Very truly yours, #

. g W. aylo Reveley, III 126/586 -

e S

ATTACHMENT 5

' ATTACHMENT 5 COUNTY OF SUFFOLK i l OFFICE OF THE COUNTY EXECUTIVE PETER F. CoHALAN JOHN C. GALLAGHER surrota cov=ry ea scurive cwier orpurv June 26, 1985 Hunton & Williams 707 E. Main St.

P. O. Box 1535 Richmond, VA 23212 Att: W. Taylor Reveley, III, E sq .

R E: Long Island Lighting Company (Shoreham Nuclear Power Station, Unit I)

Dear Mr. Reveley:

This is in response to your letter of June 17, 1985. In the event of a radiological accident, I, as the County Executive will respond to the best of my ability and in accordance with the duties and obligations placed upon me by Article 2-b of the Executive Law.

Sincerely, ph ol-P ETER F. COHALAN SUFFOLK COUNTY EX ECUTIVE PFC: sm v0Tenams usuoniat sosway a sauppaucr. N.v. i i 7se e isisiseo 4ooo

a

. LILCO, January 6, 1986

((;i- '

. 9,'

CERTIFICATE OF SERVICE

'86 JAN-3 go35 In the Matter of LONG ISLAND LIGHTING COMPANY urc . . . ..

(Shoreham Nuclear Power Station, Unit 1)O L f6/g[Lk '

Docket No. 50-322-OL-3 BRANcQ

I hereby certify that Response of Long Island Lighting Company to Motion for Cancellation of Emergency Planning Exercise with attachments was served on the following persons this January 6, 1986 by first-class mail, postage prepaid.

Chairman Nunzio J. Palladino Alan S. Rosenthal, Chairman United States Nuclear Atomic Safety and Licensing Regulatory Commission Appeal Board 1717 H Street U.S. Nuclear Regulatory Washington, DC 20555 Commission Fifth Floor (North Tower)

Commissioner James K. Asselstine East West Towers United States Nuclear 4350 East-West Highway Regulatory Commission Bethesda, MD 20814 1717 H Street, N.W.

Washington, DC 20555 Gary J. Edles Atomic Safety and Licensing Commissioner Frederick M. Bernthal Appeal Board United States Nuclear United States Nuclear Regulatory Commission Regulatory Commission 1717 H Street, N.W. Fifth Floor (North Tower)

Washington, DC 20555 East West Towers 4350 East-West Highway Commissioner Thomas M. Roberts Bethesda, MD 20814 United States Nuclear Regulatory Commission Howard A. Wilber 1717 H Street, N.W. Atomic Safety and Licensing Washington, DC 20555 Appeal Board United States Nuclear Commissioner Lando W. Zech, Jr. Regulatory Commission United States Nuclear Fifth Floor (North Tower)

Regulatory Commission East West Towers 1717 H Street, N.W. 4350 East-West Highway Washington, DC 20555 Bethesda, MD 20814 Samuel J. Chilk Morton B. Margulies, Chairman Secretary of the Commission Atomic Safety and United States. Nuclear Licensing Board Regulatory Commission United States Nuclear Washington, D.C. 20555 Regulatory Commission East-West Tower, Rm. 461A 4350 East-West Hwy.

Bethesda, MD 20814

Dr. Jerry R. Kline Stewart M. Glass, Esq.

Atomic Safety and Licensing Board Regional Counsel United States Nuclear Federal Emergency Regulatory Commission Management Agency East-West Tower, Rm. 427 26 Federal Plaza, Room 1349 4350 East-West Hwy. New York, NY 10278 Bethesda, MD 20814 Stephen B. Latham, Esq.

Mr. Frederick J. Shon John F. Shea, Esq.

Atomic Safety and Licensing Board Twomey, Latham & Shea United States Nuclear 33 West Second Street Regulatory Commission P.O. Box 398 East-West Tower, Rm. 430 Riverhead, NY 11901 4350 East-West Hwy.

Bethesda, MD 20814 Ms. Nora Bredes Executive Coordinator Herbert H. Brown, Esq. Shoreham Opponents' Coalition Lawrence Coe Lanpher, Esq. 195 East Main Street Christopher M. McMurray, Esq. Smithtown, NY 11787 Kirkpatrick & Lockhart 8th Floor, 1900 M Street, N.W. Gerald C. Crotty, Esq.

Washington, D.C. 20036 Counsel to the Governor Executive Chamber Bernard M. Bordenick, Esq. State Capitol Oreste Russ Pirfo, Esq. Albany, NY 12224 Edwin J. Reis, Esq.

United States Nuclear Jonathan D. Feinberg, Esq.

Regulatory Commission New York State Department 7735 Old Georgetown Road of Public Service, Staff (to mailroom)

~

Counsel Bethesda, MD 20814 Three Rockefeller Plaza Albany, NY 12223 Donna Duer, Esq.

Atomic Safety and Licensing Spence W. Perry, Esq.

Board Panel General Counsel United States Nuclear Federal Emergency Regulatory Commission Management Agency East-West Tower, North Tower 500 C Street, S.W.

4350 East-West Highway Room 840 Bethesda, MD 20814 Washington, D.C. 20472 Fabian G. Palomino, Esq. Atomic Safety and Licensing Special Counsel to the Governor Board Panel Executive Chamber, Rm. 229 United States Nuclear State Capitol Regulatory Commission Albany, New York 12224 Washington, D.C. 20555 Mary Gundrum, Esq. Atomic Safety and Licensing Assistant Attorney General Appeal Board Panel 2 World Trade Center United States Nuclear Room 4614 Regulatory Commission New York, New York 10047 Washington, D.C. 20555

' Martin Bradley Ashare, Esq. William E. Cumming, Esq.

Suffolk County Attorney Associate General Counsel H. Lee Dennison Building Federal Emergency Veterans Memorial Highway Management Agency Hauppauge,_NY~ 11788 500 C Street, S.W.

Room 840 Jay Dunkleberger,;Esq. Washington, D.C. 20472 New York State Energy Office Agency Building 2 Dr. Monroe Schneider

-Empire State Plaza North Shore Committee Albany, NY 12223 P. O. Box 231 Docketing and' Service Branch (3) MHB Technical Associates Office of the Secretary 1723 Hamilton Avenue United States Nuclear Suite K Regulatory Commission San Jose, California 95125 Washington, DC 20555

?

/

.i 1

le t/, . s, Don'ald P. Irwin Hunton & Williams 707 East Main Street Richmond,' Virginia 23219 DATED: January 6, 1986

.