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UNITED STATES v. CITY OF NEW YORK

December 26, 1978

UNITED STATES of America and the Trustees of Columbia University in the City of New York, Plaintiffs,
v.
CITY OF NEW YORK, the Health Services Administration of the City of New York and the Board of Health of the City of New York, Defendants



The opinion of the court was delivered by: WARD

Plaintiffs, the United States of America and the Trustees of Columbia University in the City of New York ("Columbia") move pursuant to Rule 56, Fed.R.Civ.P., for summary judgment declaring that § 175.107(c) of the New York City Health Code ("City ordinance") is unconstitutional insofar as it has been preempted by the Atomic Energy Act of 1954, as amended, 42 U.S.C. §§ 2011 Et seq. ("the Act"). They also seek to enjoin defendants, the City of New York ("the City"), the Health Services Administration of the City of New York, and the Board of Health of the City of New York ("the Board") from requiring Columbia to comply with the challenged City ordinance or from attempting to control, regulate or interfere with the operation of Columbia's Triga Mark II Nuclear Reactor ("the Columbia reactor") in any way inconsistent with the Act. Defendants cross-move for summary judgment on the grounds, Inter alia, that the City ordinance is not preempted by the Act and is a legitimate and proper exercise of the City's police power. For the reasons hereinafter stated, plaintiffs' motion is granted and defendants' cross-motion is denied.

The Factual Setting

In 1963, Columbia sought and received from the Atomic Energy Commission *fn1" a permit to construct a Triga Mark II nuclear reactor at 120th Street and Amsterdam Avenue in New York City. Columbia acted pursuant to the provisions of the Atomic Energy Act, 42 U.S.C. § 2011 Et seq., which provides for a two-stage procedure for the licensing of nuclear reactors. Under the Act, applications for construction permits "shall" be granted "if the application is otherwise acceptable to the Commission," and licenses to operate the reactors "shall" be issued by the Commission:

 
upon finding that the facility authorized has been constructed and will operate in conformity with the application as amended and in conformity with the provisions of this chapter and of the rules and regulations of the Commission, and in the absence of any good cause being shown to the Commission why the granting of a license would not be in accordance with the provisions of this chapter . . . .

 42 U.S.C. § 2235.

 The permit to build the Triga reactor was issued to Columbia after a full safety review by the Commission's Regulatory Staff and after notice of the opportunity for a public hearing on the matter was published in the Federal Register. No one sought such a hearing and no appeal was taken from the Commission's decision. The research reactor was then constructed in a building on the Columbia campus.

 In February of 1967, Columbia applied for a license to operate the reactor. One year later the Commission's Regulatory Staff issued a radiological safety evaluation which concluded that the reactor unit could be operated safely. The Commission thereupon announced its intention to issue the operating license and again published a notice in the Federal Register inviting petitions to intervene from those whose interests might be affected by the issuance of the license. A further notice provided for hearings before the Commission's Atomic Safety and Licensing Board ("ASLB"). At the hearings, conducted in New York City in November, 1969 and July, 1970, testimony was presented by over twenty witnesses and comprised more than 1,500 pages of transcript. While not a party to these proceedings, the City, through its Director of the Office of Radiation Control, Department of Health, appeared before the ASLB and submitted a prepared statement which concluded that there was no reason for the City to object to the operation of the Columbia reactor. See In the Matter of Trustees of Columbia University in the City of New York, 4 A.E.C. 594, 596-97 (1971). On April 6, 1971, the ASLB entered an initial decision denying Columbia's application for an operating license. Id., 4 A.E.C. at 594.

 All of the parties involved filed exceptions to the ASLB's initial decision and proceedings were commenced before the Atomic Safety and Licensing Appeal Board ("the Appeal Board"). In May of 1972, after additional hearings at which twelve technical experts testified, the Appeal Board issued its decision overturning the initial finding of the ASLB and authorizing the issuance of the operating license. See In the Matter of Trustees of Columbia University in the City of New York, 4 A.E.C. 849 (1972). On the basis of the entire record, the Appeal Board concluded that "issuance of the operating license will not be inimical to the health and safety of the public." Id., 4 A.E.C. at 869. The Appeal Board's decision to issue an operating license to Columbia was affirmed upon judicial review. See Morningside Renewal Council, Inc. v. United States Atomic Energy Commission, 482 F.2d 234 (2d Cir. 1973), Cert. denied, 417 U.S. 951, 94 S. Ct. 3080, 41 L. Ed. 2d 672 (1974).

 Columbia made a supplementary review of its own before deciding finally to proceed with the project. When Columbia completed that review, it complied with the conditions which the Appeal Board had specified in its decision and brought the reactor into a proper state of operability. Thereafter, the Commission conducted a final safety review and inspection of the reactor and concluded that it could be operated consonant with the public health and safety. The federal operating license was issued on April 14, 1977.

 Meanwhile, on September 23, 1976, the City, through its Board of Health, amended Section 175.107 of the City's Health Code which applies to the use and operation of radiation installations within the City. Prior to amendment, the ordinance provided that radiation installations licensed by the Commission were exempted from the radiation control requirements of article 175 of the Health Code so long as the Department of Health was accorded rights of access and inspection. The section further provided that the purpose of such inspection was "to sample effluents, and to conduct such surveys of levels of radiation and radioactive contamination, as will not substantially interfere with or interrupt for any substantial period of time any activity licensed by or contracted for by the United States Atomic Energy Commission . . . ." Other than this requirement, the City imposed no conditions or restrictions upon the operation of Commission licensed nuclear reactors. Commission licensees were not required to obtain any City certificate, permit, or license prior to commencing such operation.

 The September 23, 1976 amendment, effective October 24, 1976, added subsection (c), which provides:

 
(notwithstanding) the foregoing provisions of this section, the owner or person in charge of a nuclear reactor or critical fissionable assembly to be operated in the City shall, in addition to obtaining a license therefor from the appropriate federal authorities, not commence operation of such reactor or assembly until he has obtained a Certificate of Health and Safety for Nuclear Reactor Operation issued by the Commissioner or his designated representative. This subsection shall not apply to such reactors or assemblies operated for military, naval, national defense or national security purposes. Nothing herein shall be construed as requiring the disclosure of any defense information or restricted data as defined in the Atomic Energy Act of 1954 and the Energy Reorganization Act of 1974, as amended.

 The official explanatory notes, printed with the amendment, stated its purpose:

 
(subsection) (c) was added by resolution adopted on September 23, 1976. Since the results of any emergency or consequential radiation release from nuclear reactors or critical fissionable assemblies in the City, such as Columbia University's Research Reactor, would have to be confronted and handled by this City's governmental resources, including the Police, Fire, Air Resources and Health Departments, this requirement is intended to provide the means for a careful public health review by the Department of the implications of the operation of such reactors or assemblies.

 City Record, October 24, 1976.

 Despite Columbia's receipt of a federal license and compliance with the prerequisite safety conditions provided in the Act and its regulations, the City's Commissioner of Health, acting upon the newly amended ordinance, issued a decision on April 22, 1977 rejecting an application submitted by Columbia for a certificate of Health and Safety for Nuclear Reactor Operation. The decision was based upon the possibility of injury to the health and safety of the public resulting from an accidental release of radiation.

 On July 20, 1977, the plaintiffs, seeking declaratory and injunctive relief, joined to file the complaint in the instant action.

 The Parties' Contentions

 Plaintiffs assert that the City ordinance attempts to regulate nuclear reactors from the standpoint of radiological health and safety and, as such, is preempted by the Act, as amended. They contend that the regulation of nuclear energy from this standpoint falls within the exclusive regulatory jurisdiction of the Commission. Plaintiffs also argue that even if Congress had not preempted this type of state and local regulation of nuclear reactors, the City ordinance impedes the accomplishment and execution of the purposes and objectives envisioned in the Act and, therefore must fall.

 Defendants contend that the City ordinance is a "siting" regulation beyond the responsibility or expertise of the Commission and that Congress did not intend to preempt states and localities from regulating such matters through their police power. They also argue that the City ordinance is a regulation of non-radiological hazards and that the Act expressly permits this type of local regulation.

 Discussion

 This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1337 and 1345. This action arises under the Atomic Energy Act of 1954, as amended, 42 U.S.C. §§ 2011, Et seq., and the ...


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