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LONG ISLAND LIGHTING CO. v. COUNTY OF SUFFOLK

February 10, 1986

LONG ISLAND LIGHTING COMPANY and THE UNITED STATES OF AMERICA, Plaintiffs, -and- CITIZENS FOR AN ORDERLY ENERGY POLICY, INC. and THE SHOREHAMWADING RIVER CENTRAL SCHOOL DISTRICT, Plaintiff-Intervenors, against THE COUNTY OF SUFFOLK, NEW YORK, A NEW YORK MUNICIPAL CORPORATION, and PETER F. COHALAN, IN HIS OFFICIAL CAPACITY AS SUFFOLK COUNTY EXECUTIVE, Defendants


The opinion of the court was delivered by: WEXLER

HONORABLE LEONARD D. WEXLER, U.S. District Judge

This case is the most recent chapter in a protracted struggle over the future of the nuclear electricity generating facility owned by the Long Island Lighting Company ("LILCO") located in Shoreham, New York (the "Shoreham facility"). LILCO and the United States brought these actions against defendants Suffolk County (the "County") and Peter Cohalan, the Suffolk County Executive, in connection with the County Legislature's recent enactment of Local Law 2-86, a statute that criminalizes participation in a test involving simulation of local government roles. By way of an Order to Show Cause plaintiffs seek a preliminary injunction restraining the County and Cohalan from enforcing Local Law 2-86. A hearing was held on February 6, 1986 and at that time, the Court granted plaintiffs' motions to consolidate. For the reasons stated below, the Court now grants the preliminary injunction.

 PRELIMINARY REMARKS

 As the Court sought to make clear at oral argument, there are many things that this case is not. The Court's ruling neither proclaims a renewed faith in nuclear power nor confers a blessing on LILCO or its Shoreham facility. The Court does not decide whether the emergency evacuation plan should be tested, if the Nuclear Regulatory Commission ("NRC") should issue LILCO an operating license, or if Shoreham should be opened. These questions, along with the broader issues of the use of nuclear power and the future of the nation's public utilities, are beyond the purview of the Court. The Court does not address them today and given the constitutional limits on judicial power, these truly weighty controversies will not be resolved by this or any other federal court.

 To avoid any ambiguity, the narrow question before this Court is whether the acts made criminal by Suffolk County under Local Law 2-86 intrude into a sphere reserved exclusively to the federal government. Congress requires that federal judges reside in the judicial district in which they sit, 28 U.S.C. § 134(b). Therefore, this Court cannot help but observe the deep passions and seemingly intractable problems that infect the controversy over the Shoreham nuclear power plant. The criticism of the Shoreham facility has become a password for a spate of economic, political and public health concerns confronting the County, New York State, and the United States. But those issues are not before the Court, and the Court cannot reach out and decide them. Today's ruling will neither make them disappear nor advance their resolution.

 BACKGROUND

 A. Suffolk County and Radiological Emergency Planning

 LILCO first applied to the Atomic Energy Commission ("AEC") in 1968 for a license to construct the Shoreham facility. Although Suffolk County did not choose to participate in the initial licensing proceedings, then Suffolk County Executive H. Lee Dennison appeared before the AEC Licensing Board in 1970 and spoke in favor of a construction permit. The only local group to oppose the issuance of a construction license at that time was the Lloyd Harbor Study Group. NRC regulations do not require state or local approval, but local governments may intervene in the NRC proceedings. 10 C.F.R. § 2.714 (1985). LILCO received a construction permit in April 1973 and Suffolk County, in close cooperation with LILCO, began to develop a plan to deal with a major radiological accident. Throughout 1975, LILCO and the Suffolk County Planning Department worked closely to define the role that each would play and, ultimately this labor produced a document known as "Suffolk County's General Radiation Emergency Plan." This plan was approved by the Suffolk County Executive in August 1978.

 In March 1979, the accident at Pennsylvania's Three Mile Island nuclear facility changed the nation's attitude toward nuclear power and safety. Within a short time, localities no longer welcomed nuclear power plants and began to question their value and desirability. After Three Mile Island, Congress passed the 1980 NRC Authorization Act, Pub.L.No. 96-295, 94 Stat. 780 (1980), which required, among other things, an adequate radiological emergency response plan ( "RERP" or "Plan") for the area surrounding a nuclear power plant before the NRC could license a nuclear power plant. Suffolk County and LILCO continued to work closely, with their efforts now directed toward developing a RERP that would be acceptable to the NRC. To that end, the County entered into a contract with LILCO in 1981 which provided that the County's Planning Department would prepare an off-site emergency plan for the soon-to-be-completed Shoreham facility. In 1982, however, because of an apparent conflict of interest with LILCO in pending NRC proceedings, Suffolk County rescinded the agreement with LILCO and returned any consideration.

 Nevertheless, the County continued its emergency planning and sought to develop its own RERP. Accordingly, the County Planning Department submitted a proposal in December 1982. The County Legislature held a number of public hearings on the plan, conducted a number of technical investigations, and generally expended a great deal of time and money in an effort to evaluate the potential impact of a radiological emergency on public health and safety.

 In Resolution III-1983, however, the County Legislature decided that no plan would protect the safety of Suffolk County's residents in the event of a radiological disaster and declined to approve the Planning Department's proposal. Accordingly, the County Legislature terminated any further emergency planning and resolved not to participate in the development, approval, or implementation of any RERP. With construction of the Shoreham facility nearly complete, the County withdrew its support for LILCO's power plant. Subsequently, in Resolution 1398-1984, the County Legislature went on record as both opposing the licensing or operation of the Shoreham facility and advocating its complete abandonment.

 From this point onward, Suffolk County opposed the completion of the Shoreham facility before the NRC, and in the federal and state courts. Not surprisingly, there has been a fair amount of litigation over LILCO's Plan and Suffolk County's refusal to participate in the creation and implementation of a RERP. In 1982, Suffolk County commenced a class action in federal court on behalf of county residents to enjoin the completion of the Shoreham facility. The Court dismissed the County's complaint, holding that federal law preempted state law in the area of radiological safety and therefore, a private litigant has no cause of action under the Atomic Energy Act, Pub.L.No. 585, 60 Stat. 755 (1946), codified as amended at 42 U.S.C. § 2011-296 (1985), to prevent the construction of a nuclear power plant. County of Suffolk v. Long Island Lighting Company, 554 F. Supp. 399 (E.D.N.Y. 1983), aff'd, 728 F.2d 52 (2d Cir. 1984). In its affirmance of the District Court, the United States Court of Appeals for the Second Circuit observed that Suffolk County's "only avenue . . . is to continue its proceedings in the administrative forum -- the NRC for safety-related concerns and the New York State Public Service Commission for economic claims." 728 F.2d at 64.

 In another action, commenced shortly after the County's Resolution III-1983, plaintiff Citizens for an Orderly Energy Policy and plaintiff-intervenors LILCO and the Shoreham-Wading River Central School District sought equitable relief that would have compelled Suffolk County and Peter Cohalan's participation in the development of RERP. After a thorough and detailed examination of the complex legislative history of the 1980 NRC Authorization Act, the Honorable Frank X. Altimari held that Suffolk County's Resolution III-1983, by which the County withdrew from the emergency planning process and declared Shoreham unsafe, did not amount to a regulation of or interference with the federal government's exclusive power to regulate matters of nuclear power production or radiological safety. Citizens for an Orderly Energy Policy v. Suffolk County, 604 F. Supp. 1084, 1094 (E.D.N.Y. 1985). Judge Altimari concluded that the eventuality of local non-participation had been considered by Congress and that Congress had restructured the law to enable the NRC to continue evaluating emergency plans and granting licenses even in the absence of local governmental input. Citizens, 604 F. Supp. at 1095. The Court noted that the result would be different if Suffolk County engaged in some affirmative action amounting to a regulation of nuclear power or a moratorium on plant operation. 604 F. Supp. at 1094 & n.1.

 B. 1985 TO DATE

 Events accelerated as the Shoreham facility reached completion in 1985. As constructed, the Shoreham facility will generate 809 megawatts. The Shoreham facility has been finished for over a year and the total cost now approaches $4.5 billion. LILCO maintains that the carrying charges for the facility are approximately $1.5 million per day or $45 to $55 million per month. Affidavit of John Weismantle, LILCO Vice-President of Engineering, P18.

 Over the County's opposition, the NRC issued a low-power testing license to LILCO in July 1985. Low-power testing commenced and was completed in October. See Cuomo v. United States Nuclear Regulatory Commission, 772 F.2d 972 (D.C. Cir. 1985). The NRC requires that each utility submit an acceptable RERP before a full power operating license can be issued. 10 C.F.R. § 50.47. If the NRC approves the RERP, a license is issued and the utility can begin operation of the nuclear power plant. Under NRC regulations, the NRC must determine whether the RERP "provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." 10 C.F.R. § 50.47(a)(2), (b)(14) (1985). As a means of evaluating the adequacy of a RERP the NRC requires that the utility conduct a satisfactory exercise of its Plan. 10 C.F.R. § 50.47(a)(1985).

 Despite Suffolk County's decision not to participate in the creation of a RERP, LILCO developed one on its own. This RERP, which the Court has not seen but apparently spans several thousand pages and is contained in several volumes, was submitted to the NRC for approval. The off-site portion of the RERP, which is the focus of this litigation, involves first, an evaluation of the size, characteristics, and distribution of the populations to be protected in the event of a radiological emergency, second, the means available to protect the population, and third, the logistical requirements for the task.

 A brief digression will explain the procedures usually followed in evaluating a utility's RERP. The overall review of the state of preparedness, including LILCO's RERP, is conducted by the Federal Emergency Management Agency ("FEMA"). Executive Order 12,148, 44 Fed.Reg. 43239 (July 20, 1979). FEMA reviews LILCO's off-site Plan and reports the results of the review to the NRC. FEMA then arranges, at the request of the NRC, a graded exercise of the ability of various organizations to implement the RERP. FEMA oversees the conduct of the exercise and again reports the results to the NRC. Although FEMA's report constitutes a rebuttable presumption of validity, the NRC has the ultimate responsibility for determining the adequacy of a utility's RERP when either issuing a license or allowing a license to remain in effect. 10 C.F.R. § 50.47(a)(1985). As with any other licensing issue, emergency planning and, specifically, the results of a FEMA-sponsored evaluation of LILCO's RERP, may be litigated before the NRC and appealed to the federal courts. 42 U.S.C. § 2231-42.

 Returning to the facts of this case, in November 1984, LILCO notified the NRC that it was planning to test its Plan in February 1985. New York Governor Mario Cuomo, Suffolk County, and the Town of Southampton commenced a suit in New York State Supreme Court, Suffolk County in an effort to prevent the test. The plaintiffs sought a declaratory judgment that LILCO lacked the legal authority to conduct the test. In a lengthy decision dated February 20, 1985, the state court ruled that LILCO, as a private corporation authorized pursuant to state law, lacked the authority to perform the public functions that are traditionally reserved to state and ...


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