Prospect v. Cohalan
| Decision Date | 24 June 1985 |
| Citation | 109 A.D.2d 210,490 N.Y.S.2d 795 |
| Parties | In the Matter of Wayne PROSPECT, et al., Respondents, v. Peter F. COHALAN, County Executive of the County of Suffolk, Appellant; Long Island Lighting Company, Intervenor-Respondent. In the Matter of the TOWN OF SOUTHAMPTON, et al., Respondents, v. Peter F. COHALAN, County Executive of the County of Suffolk, Appellant, Long Island Lighting Company, Intervenor-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Reisman, Peirez, Reisman & Calica, Garden City (Robert M. Calica and Thomas P. Schulz, Garden City, of counsel), for appellant.
Twomey, Latham & Shea, Riverhead (Stephen B. Latham, John F. Shea, III and Lawrence M. Storm, Riverhead, of counsel), for respondent towns and Reilly, Like & Schneider, Babylon, N.Y. and Lester B. Lipkind, Babylon, for respondent legislators.
Rosalind M. Gordon and Anthony F. Earley, Jr., Hicksville (Hunton & Williams, David R. Marshall, W. Taylor Reveley, III, K. Dennis Sisk and Kathy E.B. McCleskey, Richmond, Va., of counsel), for intervenor-respondent Long Island Lighting Co.
Robert Abrams, Atty. Gen., New York City (Peter Bienstock, Alfred L. Nardelli and Mary M. Gundrum, New York City, of counsel), and Fabian Palomino, New York City, for the State of N.Y., amicus curiae.
Before MOLLEN, P.J., and MANGANO, BROWN, WEINSTEIN and RUBIN, JJ.
The issue presented on this appeal involves the validity of Executive Order 1-1985 issued on May 30, 1985, by appellant Peter F. Cohalan, the County Executive of Suffolk County, purportedly pursuant to the provisions of Executive Law article 2-B and Suffolk County Charter § 302. The Executive Order directed the Commissioners of the Police and Planning Departments of Suffolk County to utilize whatever resources might be necessary to "complete a review and evaluation * * * and carry out and cause to be conducted a test and exercise" of a local emergency response plan presently before the United States Nuclear Regulatory Commission and the Federal Emergency Management Agency in connection with the operation of the Shoreham nuclear facility. We begin with a review of the facts.
In 1973, Long Island Lighting Company (LILCO) obtained a permit from the Atomic Energy Commission for the construction of an 820-megawatt nuclear powered facility to be located at Shoreham in the Town of Brookhaven, Suffolk County. Three years later, LILCO commenced proceedings to obtain an operating license for the Shoreham nuclear plant. While the licensing proceedings were pending, the United States Congress, in response to the 1979 accident at the Three Mile Island Nuclear Facility in Harrisburg, Pennsylvania, determined that no nuclear plant should be licensed to operate unless an adequate emergency plan could be devised and implemented for the area surrounding the nuclear facility. In accordance with this legislative determination, the Nuclear Regulatory Commission (NRC) promulgated a series of regulations which required the submission of an adequate radiological emergency response plan (RERP) by an applicant desirous of operating a nuclear facility. Pursuant to these regulations, an operating license will be issued only if the NRC is reasonably assured that adequate measures can be taken to protect the area surrounding the nuclear facility in the event of a radiological emergency.
In an effort to comply with the newly enacted NRC regulations, LILCO and representatives of the County of Suffolk entered into an agreement, embodied in Suffolk County Resolution 694-1981, for the preparation of a RERP for the Shoreham nuclear facility under the direction of the County Planning Department. That agreement provided that LILCO would advance the sum of $150,000 to the county in order to meet the projected cost of preparing the plan, with an additional $95,000 to be paid to the county upon completion of the plan.
In March 1982, the county determined that, in order to avoid any appearance of a conflict of interest, it would return the $150,000 advance received from LILCO for the RERP and complete the plan at the county's expense. Accordingly, on March 23, 1982, the Suffolk County Legislature adopted Resolution 262-1982 which directed the return of the $150,000 advanced by LILCO and provided, in pertinent part:
Resolution 262-1982 was approved and signed by appellant Cohalan on March 25, 1982.
On May 18, 1982, the Suffolk County Legislature adopted Resolution 456-1982 which established the RERP policy of the county. The resolution provided in pertinent part:
This resolution was approved and signed by appellant Cohalan on May 19, 1982.
The Suffolk County Planning Department, in accordance with these resolutions, submitted a RERP to the County Legislature in December 1982. Several public meetings were thereafter conducted by the Legislature during January 1983. On February 17, 1983, the Legislature adopted Resolution 111-1983 in which it resolved that it would not approve, adopt or implement any RERP for the Shoreham facility. The resolution provided, in pertinent part:
This resolution was similarly approved and signed by appellant Cohalan on February 23, 1983.
Following the county's refusal to adopt a RERP, LILCO submitted its own plan to the NRC, designated as "The LILCO Transition Plan". The plan described in detail the actions which LILCO proposed to take if a radiological emergency occurred at the Shoreham facility. Thereafter, the State, the County of Suffolk and the Town of Southampton instituted separate declaratory judgment actions against LILCO in the Supreme Court, Suffolk County, seeking a declaration that LILCO did not have legal authority to implement its plan. By decision dated February 20, 1985, the court (Geiler, J.), held that LILCO's actions constituted an usurpation of governmental powers (Cuomo v. Long Island Lighting Co., N.Y.L.J., April 19, 1985, p. 16, col. 3). Similarly, on April 17, 1985, the Atomic Safety and Licensing Board of the NRC, which held hearings on LILCO's Transition Plan, also determined that LILCO did not have the legal authority to implement its own plan and that, accordingly, LILCO did not have an implementable, comprehensive and effective RERP for its Shoreham plant.
Thereafter, on May 30, 1985, without consulting with the County Legislature, appellant Cohalan issued Executive Order 1-1985, which provided:
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...adequate emergency plan could be devised and implemented for the area surrounding the nuclear facility (see, Matter of Prospect v. Cohalan, 109 A.D.2d 210, 211, 490 N.Y.S.2d 795, aff'd 65 N.Y.2d 867, 493 N.Y.S.2d 293, 482 N.E.2d 1209; see, Matter of Citizens For An Orderly Energy Policy v. ......
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...it is the more specific provision that prevails over and is to be read with the general section 277. Prospect v. Cohalan (In re Wayne), 109 A.D.2d 210, 216, 490 N.Y.S.2d 795 (N.Y.App. Div., 2d Dep't 1985) (“The law is settled that in interpreting statutory authority, specific provisions of ......
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Emergency Response Plans
...plans, and it is the local legislative bodies that are endowed with the power to plan and prepare for a disaster. Prospect v. Cohalan , 109 A.D.2d 210 (2nd Dept). EMERGENCY RESPONSE PLANS NEW YORK FIRE DISTRICT OFFICERS’ GUIDE §27:110 27-8 §27:110.1 LOCAL EMERGENCY ORDERS Following the stat......
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Emergency Response Plans
...plans, and it is the local legislative bodies that are endowed with the power to plan and prepare for a disaster. Prospect v. Cohalan , 109 A.D.2d 210 (2nd Dept). §27:110.1 Local Emergency Orders Following the state of emergency proclamation, and during the continuance of such local state o......
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Emergency Response Plans
...plans, and it is the local legislative bodies that are endowed with the power to plan and prepare for a disaster. Prospect v. Cohalan , 109 A.D.2d 210 (2nd Dept). §27:110.1 Local Emergency Orders Following the state of emergency proclamation, and during the continuance of such local state o......
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Emergency Response Plans
...plans, and it is the local legislative bodies that are endowed with the power to plan and prepare for a disaster. Prospect v. Cohalan , 109 A.D.2d 210 (2nd Dept). §27:110.1 LOCAL EMERGENCY ORDERS Following the state of emergency proclamation, and during the continuance of such local state o......