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United States v. New York, City of

Citation: 9 ELR 20188
No. No. 77 Civ. 3485, 463 F. Supp. 604/12 ERC 1600/(S.D.N.Y., 12/26/1978)

The court invalidates a provision in the New York City Health Code which prohibits the operation of a nuclear reactor in the city, except pursuant to a municipal certificate of health and safety, finding the measure preempted by the Atomic Energy Act. Despite defendant's arguments to the contrary, the court finds that the ordinance intrudes on an area of regulation in which federal authority operates to the exclusion of concurrent state controls. An examinatior of the statutory language and legislative history indicates that the Act implicitly prohibits any independent state or local regulation of the radiation hazards associated with the operation of nuclear reactors. The local setting of the reactor at Columbia University was fully considered in the federal licensing proceedings. The municipal ordinance thus may not be viewed solely as a siting measure on the ground that the federal licensing process did not examine local siting and safety considerations. Furthermore, the court notes, the stated intent of the ordinance and the basis articulated for denying certification to the Columbia reactor show it to be a public health measure aimed at preventing accidental radiation discharges rather than a traditional land use regulation.

Council for Plaintiffs
Robert B. Fiske, Jr., U.S. Attorney; Nathaniel L. Gerber, Ass't U.S. Attorney
One St. Andrews Plaza, New York NY 10007
(212) 791-0055

Raymond M. Larizza
Civil Division
Department of Justice, Washington DC 20530
(202) 633-3385

Stephen F. Eilperin, Solicitor; C. W. Reamer
Office of the General Counsel
Nuclear Regulatory Commission, Washington, D.C. 20555
(202) 634-1465

Floyd Abrams, Charles E. Fairfax, III, Bennett Boskey
Cahill, Gordon & Reindel
80 Pine St., New York NY 10005
(212) 825-0100

Counsel for Defendant
Allen G. Schwarz, Corporation Counsel; Joseph F. Bruno, Isaac Klepfish
Municipal Bldg., New York NY 10007
(212) 566-3322