source: Caselaw Access Project

author: DAVIDSON, District Judge.

license: Public Domain

text:
    GLOBAL TRUCK & EQUIPMENT CO., INC., Plaintiff, v. PALMER MACHINE WORKS, INC., Defendant.
    No. EC 83 174 GD D.
    United States District Court, N.D. Mississippi, E.D.
    Feb. 7, 1986.

      J. Anthony Friloux, Jr., A.T. McKinney, Houston, Tex., William M. Beasley, Tupelo, Miss., for plaintiff.
    Hunter M. Gholson, Aubrey E. Nichols, Columbus, Miss., J.O. Prude, Amory, Miss., for defendant.
   MEMORANDUM OPINION

DAVIDSON, District Judge.

The plaintiff Global Truck & Equipment Co., Inc. (Global) brings this action for damages arising from the sale of alleged defective dump trailers sold by Palmer Machine Works, Inc. (Palmer). The plaintiff seeks recovery under the theories of strict liability in tort, negligent design and breach of express and implied warranties. The defendant asserts that the trailers sold by it were free from defect and the trailer turnovers were the result of the misuse of the product in that the trailers were made for hauling washed rock and gravel only and that a cohesive material containing rock and dirt or clay was hauled instead. Plaintiff Global is a Texas corporation primarily engaged in the business of selling and purchasing trucks, trailers and related equipment. Defendant Palmer is a Mississippi corporation engaged in the manufacture and selling of trailers to be used for the hauling and dumping of various materials. This court has jurisdiction of this matter pursuant to its diversity jurisdiction. 28 U.S.C. section 1332. The court proceeds with its findings of fact and conclusions of law pursuant to rule 52 of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

In late 1980, John Randall, Vice-President and a major stockholder of Global, was contacted by Roberto Lopez of McAllen Motors, at the request of Constructora-Dava, a Mexican contractor, to purchase twenty-five trucks. Lopez stated that the trucks were to be equipped with triaxle frame-type trailers, 30 feet in length, containing a 38 cubic yard capacity, twelve 22 inch tires and having five foot sides. At the time of the sale, Randall of Global and Lopez had been in the business of buying and selling trucks and trailers since 1975 and 1979, respectively. Randall had previously received orders from Lopez for trucks and trailers and, in a desire to continue to please his customers, Randall contacted a number of manufacturers and dealers with which he was familiar but was unable to find a manufacturer who would deliver a triaxle 30 foot trailer by the date that Lopez related that Constructora-Dava needed the trailers. One of the dealers, however, recommended Palmer Machine Works, Inc. and subsequently, Randall telephoned Jason Gallop of Palmer. Randall advised Gallop of the general specifications demanded by the Mexican customer, Constructora-Dava, advised Gallop that the trailers were to be used in Mexico and that they were to be used for hauling washed rock and gravel. An initial order of five trailers instead of the requested twenty-five trailers was made in an attempt to manufacture and deliver the trailers before the expiration of the Mexicans’ import permit. The total purchase price of the five trailers was $81,375.00 or $16,275.00 each. Randall placed the order on November 14, 1980 and a deposit of 15 percent or $12,-206.25 was paid on November 18. Global paid the balance of the purchase price upon receipt of the trailers at Palmer’s facility in Monroe County, Mississippi on November 24, 1980.

After arriving at the site in Mexico, the first trailer was loaded but overturned during the dumping process. The second trailer likewise overturned on its first use. Upon notification of these occurrences, Lawrence R. Palmer, president of the defendant, met with Lopez in McAllen, Texas and from there they traveled to the site in Mexico to supervise and observe the dumping of a third Palmer trailer. Palmer instructed the Mexicans to utilize the same loading and dumping procedures as were implemented with regard to the first two Palmer trailers. The Mexicans proceeded to wet the material with water from hoses at the site and loaded the trailers utilizing loaders. The Palmer trailers in a normal dumping procedure dump at five different levels or stages. At the end of stages 1 and 2, Palmer ordered the dumping process temporarily haulted while he took measurements of the spring deflection underneath the trailer as well as other measurements. Palmer testified that at the first and second stages, about one-third of the load discharged per stage. After taking these measurements, Palmer ordered the trailer raised to the third stage and again stopped. Palmer testified that, at this stage, approximately another ten to fifteen feet of material had discharged, or about 80% of the total load, leaving five to six feet of material in the trailer bed. Lopez and Palmer agree that while Palmer was underneath the trailer, more of the material in the trailer suddenly discharged, causing the trailer to tip to the left, then to the right whereupon the trailer proceeded to fall to the ground.

Palmer later expressed his opinion that the tipovers were caused by the Mexicans not hauling “washed rock,” the trailer’s stated use, but instead hauling a cohesive mixture of rock and dirt or clay. Palmer, as well as other witnesses, testified that rock and dirt mixtures become cohesive when damp or wet and frequently “hang up” in the front of the trailers during the dumping process and that, for this reason, warnings were placed on the trailers stating that “wet loads may hang up in the front of the trailers and cause an upset.” Palmer further testified that, in his opinion, the material loaded on the truck in Mexico weighed at least 3,000 pounds per cubic yard and was 80 percent dirt or clay. Alvin Rakestraw, who is engaged in the trucking, hauling, sand, gravel and mining business and who hauls clay gravel, gravel and washed rock, testified that when cohesive material sticks in the front of a trailer, the material often releases itself in sections instead of uniformly, causing an imbalance and resulting in the trailer overturning. The defendant’s two expert witnesses, Dr. Forbes, a professor of mechanical engineering at Mississippi State University, and Ken Tyler, chief engineer for Fontaine, another dump trailer manufacturer, also testified about the dangers of dumping cohesive material from long trailers. Billy Phillips, who stated that he has been hauling sand and gravel for about twenty-five years, testified likewise. Even the plaintiff's expert witness, Dr. Clarence Bell, testified in his deposition, offered for impeachment purposes, that if a load.of material hangs in the front of a trailer to one side, tipover may occur. Only the plaintiff’s chief expert witness, G.A. Hagelthorn, a professional engineering consultant and a former design engineer for the Freuhauf Corporation, testified to the contrary. However, Hagelthorn testified that the “angle of repose,” or the height that a trailer must rise to dump a load of material, increases when clay or compacted earth is dumped as compared to crushed stone or plain gravel. Considering the weight of the evidence, the court finds that the material to be loaded and dumped determines the type of trailer to be selected and that long trailers, though appropriate for hauling rock or washed rock and other noncohesive materials, should not be used to haul rock and wet dirt or clay mixtures. The court also finds, for reasons more fully expressed later in this opinion, that the dumping of cohesive materials in trailers of the length in issue is not only a misuse of the product but an unforeseeable misuse given the common knowledge in the business of the danger of dumping such cohesive materials in long trailers.

Given these findings, the court proceeds to discuss the evidence concerning the type of material hauled in the Palmer trailers. No eyewitness who observed the loading and dumping of the first two Palmer trailers testified at trial. The only evidence before the court as to the type of material loaded into the first two overturned Palmer trailers is (1) the testimony of Palmer and Lopez that Palmer ordered that the third trailer be loaded with the material the Mexicans had loaded in the other two trailers, and (2) several photos of the overturned trailers. Plaintiffs exhibit 1-F shows one of the Palmer trailers lying on its side with a reddish tint material in its bed along with two piles of material to the rear of the trailer. On direct, Lopez testified that the pile of material shown on the right of the photo, having a rock and dirt appearance, most resembles the material loaded into the third trailer that overturned. On cross, Lopez was shown defendant’s exhibits 2,17 and 18. Exhibit 17 was a jar containing rock only whereas Exhibit 18 was a jar essentially containing dirt. After being shown defendant’s exhibit 2 — an enlarged photo of one of the overturned Palmer trailers containing material Lopez described as being “washed gravel” — Lopez was asked which jar appeared to contain the material depicted in the defendant’s exhibit 2. Lopez pointed to the jar containing the dirt mixture, or defendant’s exhibit 18. Randall, in his deposition, admitted into evidence at trial, agreed that “washed rock” is “just pure rocks and gravel.” After close examination of defendant’s exhibit 2, the court finds that the material contained within the overturned trailer is not “washed rock,” but is instead a mixture of clay or dirt with a low ratio of rock. This finding is reinforced by Lopez’s identification of the material in the trailer shown in defendant’s exhibit 2 as most resembling the dirt mixture contained in defendant’s exhibit 18. Further, after examining plaintiff’s exhibit 1-F and the depiction of the material to the right of the photo that Lopez identified as being similar to the material loaded in the third trailer, the court finds that this material, though apparently containing a higher rock to dirt ratio than the pile of material depicted in the left-hand side of the photo, is still not “washed rock,” or just rock and gravel, as described by Randall in his deposition, but is rather a rock and dirt or clay mixture.

As a result of the overturns of the first three Palmer trailers, Constructora-Dava expressed their dissatisfaction to Randall who refunded Constructora-Dava’s money and had the two unused trailers and the three overturned trailers, as well as the five trucks, returned to Global’s place of business in Houston, Texas. Global thereafter notified Palmer that it sought revocation of acceptance of the trailers due to their alleged defective nature. Global offered to furnish its Mexican customer with 28 foot, dual axle Lufkin trailers, but the customer refused to accept the smaller, dual axle trailers. Instead, Constructora-Dava purchased short bob-tail trucks, or trucks constructed with an 8-10 foot dump body attached to the frame of the truck.

The plaintiff sought to establish its case as to Palmer’s liability primarily through its chief expert witness, Hagelthom. Hagelthorn testified that one of the major defects of the Palmer trailers sold to Global, and ultimately to Constructora-Dava, was the narrower frame width of the Palmer trailers as compared to the Freuhauf and Trailmobile trailers with which he was familiar. As a result, Hagelthorn stated, the zone of stability of the Palmer trailers was only a total of eighteen inches, or nine inches on each side of the center line. Hagelthorn explained that as a thirty foot Palmer elevates, given its zone of stability, the center of gravity can move only nine inches one way from the center to one side and that, at this nine inch point, the trailer becomes unstable and will tip over. Hagelthom suggested a widening of the main beams of the Palmer trailers, noting that remedying this alleged defect could be accomplished without great expense.

However, Hagelthorn also stated that the zone of stability or equilibrium on the Freuhauf and Trailmobile trailers is slightly in excess of twenty inches, only a two inch difference. On cross examination, Hagelthorn, when questioned, did not object to the defendant’s assertion that a thirty-two foot Fontaine trailer has a beam spacing of only thirty-seven inches whereas, as testified to by the defendant’s expert, Dr. Forbes, the Palmer thirty foot trailer has a beam spacing of thirty-eight inches, or thirty-seven and three-quarters inches excluding the width of the hinges.

Hagelthorn also testified that in his opinion, the crossmembers on the thirty foot Palmer unit are less able to resist warping or torsional forces than would be expected and that this defect, in combination with the narrow frame and the location of the hinges of the trailer at the rear of the suspension center line of the frame, all contributed to or proximately caused the tipovers of the Palmer trailers. The hinge location, Hagelthorn stated, imposed a greater than expected force on the beams causing them to bend in what he described as an angular or distinct point of bending of the beams when the trailer fell rather than a gradual, consistent warping from the front to the rear of the beams as is typically seen in trailer tipovers.

Hagelthorn’s conclusions regarding the Palmer trailers directly conflicted with the conclusions of the defendant’s experts, Dr. Forbes and Ken Tyler. According to Tyler and Forbes, as well as Hagelthorn, a critical parameter in determining the overall ability of a beam to resist bending is that geometric property known as the section modulus. Hagelthorn, on cross, agreed that the greater the section modulus, the greater the resistence to deflection. The results of a comparative analysis of the section moduli of similar dump trailers designed and sold by seven different trailer manufacturers performed by Dr. Forbes showed that the section modulus was higher on the thirty foot triaxle Palmer unit than for any other trailer examined. (See Appendix I). Further, the number and thickness of the crossmembers in the Palmer trailer exceeded the number and thickness found on the crossmembers of many of the other trailers of similar length manufactured by Palmer’s competitors. In comparison to this rather extensive comparative analysis performed by Dr. Forbes, Hagelthorn conceded that he based his analysis on his knowledge of Freuhauf and Trailmobile trailers and on the examination of one wrecked and one unwrecked trailer chassis of a total of four wrecked trailers at Global’s place of business in Houston where the five Palmer trailers are stored. Given these facts, the court finds, as a matter of fact, that no defects existed with respect to the Palmer trailers, particularly with reference to the frame width, the crossmembers or the hinge location.

Hagelthorn also testified that, due to the Palmer trailer design, the maximum payload of the 30 foot trailers was around 85.000 to 90,000 pounds. Palmer estimated that, fully loaded, the material loaded in the trailer bed in Mexico weighed about 114.000 pounds. However, given the testimony of the plaintiff’s witness, Lopez, that at the time of the tipover of the third trailer, most of the material had discharged and the testimony of Palmer that nearly 80 percent of the load had discharged, the court finds that the Palmer trailers were capable of carrying and dumping the weight of the loads to which they were subjected.

The plaintiff also asked a number of questions as to whether the defendant employed, or had in its employ, an engineer to assist in the preparation of a separate design for the 30 foot triaxle trailers. The defendant’s witnesses testified that Palmer used its standard design for its other trailers as well as a Hutchins, heavy-duty suspension system used on some of its other trailers. The trailer design had been utilized by Palmer for many years and had been used in the manufacture of the 30 foot frame type trailer since 1970. The design had been prepared by engineers several years earlier at the instance of Mr. Lawrence Palmer’s father Mr. Lawrence Palmer, Sr., a former president of the company, who died in 1981. In the court’s opinion the failure to prepare a specific design for the trailers that were ordered by the plaintiff does not lead the court to believe that a design defect probably existed, especially when the court has considered all other design theories advanced by the plaintiff and found them to be inconclusive.

CONCLUSIONS OF LAW

Initially, the court considers the issue as to whether a valid, enforceable contract existed as to twenty-five trailers or only as to five. The sale of the Palmer trailers to Global is considered a sale of goods to which the Uniform Commercial Code (UCC) applies. UCC section 2-102. Mississippi adopted the UCC effective March 31, 1968 and its provisions are codified in Title 75 of the Mississippi Code Annotated (1972). Under the provisions of the UCC, contracts for the sale of goods equaling or exceeding five hundred dollars in value are not enforceable unless a writing exists signed by the party against whom enforcement is sought. Miss.Code Ann. section 75-2-201 (1972). The Palmer trailers were ordered over the telephone by John Randall in a conversation with Jason Gallop of Palmer Machine Works. Lopez testified that representatives of Constructora-Dava requested that he locate and purchase twenty-five 30 foot trailers. However, funding was only available for five units and the Mexican import permit in late 1980 only provided for the shipment of five units. Gallop testified that Randall only made an initial order of five trailers with the possible order of an additional twenty trailers at a later time. In Randall’s deposition, admitted into evidence at trial, Randall stated he only “intended” to order the additional trailers from Palmer at a later time. Since the sale of only one trailer is for an amount in excess of five hundred dollars, the court concludes that UCC section 2-201 applies necessitating a writing signed by an agent of Palmer before the alleged order for the additional twenty trailers is enforceable. Finding an absence of such a writing, the court proceeds to determine whether the alleged order for the additional twenty trailers falls within one of the three exceptions to the statute of frauds set forth in UCC section 2-201(3).

Briefly stated, the three exceptions to the writing requirement are: (1) when the goods are specially manufactured for the buyer and are not suitable for sale to others in the seller’s ordinary course of business; (2) when the party against whom enforcement is sought, or in this case, Palmer, admits in its pleading or testimony that a contract was made with regard to the alleged sale; or, (3) when payment for the goods involved in the alleged contract has been made and accepted. The court finds that no admission of the existence of a contract for the additional twenty trailers was made and that Global never tendered and Palmer never received payment for these trailers nor was any deposit teñdered. Further, the first exception for specially manufactured goods according to its terms, only applies when the seller, not the buyer, of the goods seeks to obviate the statute of frauds defense. The court therefore concludes that, as a matter of law, enforcement of any order in excess of five units is precluded by the statute of frauds.

STRICT LIABILITY

Under Section 402A of the Restatement of Torts (Second), adopted by the Mississippi Supreme Court in State Stove Mfg. Co. v. Hodges, 189 So.2d 113 (Miss.1966), it is fundamental that a product must be found to be sold in a defective condition unreasonably dangerous to the purchaser or ultimate user before liability can be imposed. Fruehauf Corp. v. Trustees of First, Etc., 387 So.2d 106, 109 (Miss.1980) (elements to be proved in a strict liability case are: (1) that product left manufacturer in defective condition; (2) product in same condition at time of accident as when it left factory; and (3) defect was proximate cause of injury). By failing to establish the existence of a defective condition, the court concludes that Global cannot recover under this theory according to the express terms of Section 402A.

The plaintiff also alleges that Palmer is strictly liable in tort for failing to adequately warn of the danger of turnover. In construing section 402A, courts have held that a product free of manufacturing and design defects may still be unreasonably dangerous if adequate instructions are absent or a failure to warn exists. E.g., Anderson v. Heron Engineering Co., Inc., 198 Colo. 391, 604 P.2d 674, 676 (1979); Wolfe v. Ford Motor Co., 6 Mass.App. 346, 376 N.E.2d 143, 145 (1978); Rindlisbaker v. Wilson, 95 Idaho 752, 519 P.2d 421 (1974). However, this duty to warn or instruct does not exist when the danger is commonly known or is obvious. See Wansor v. George Hantscho Co., Inc., 595 F.2d 218, 221 (5th Cir.1979) (according to Georgia law, no warning required in particular trade or profession against generally known changes in profession); Mico Sales & Leasing, Inc. v. Skyline Corp., 97 Idaho 408, 546 P.2d 54, 61 (1975) (where dealer’s general manager knew substance poisonous, dealer charged with manager’s knowledge and seller of substance had no duty to warn dealer of danger); Eyster v. Borg-Warner Corp., 131 Ga.App. 702, 206 S.E.2d 668, 670 (1974) (since specific danger of aluminum-copper connection commonly known by those in profession, no duty on manufacturer to warn). The court earlier found as a matter of fact that, according to the weight of the testimony, it is commonly known in the hauling and dumping business that a danger exists in dumping cohesive materials in long dump trailers. The court is of the opinion that although the yellow warning stickers placed on the trailers by Palmer stating that “Wet loads may hang up in the front of the trailers and cause an upset” might be found to be an inadequate warning to someone not in the hauling and dumping business, the warning to an admitted dealer in the truck and trailer business and its customer — a buyer and frequent user of trailers both prior to and after the turnover of the Palmer trailers and who, according to the plaintiff’s witness Lopez, was an expert in the hauling industry — more than suffices. The fact that the wording of Palmer’s caution sticker was stated only in English and not in Spanish, even though Palmer knew the trailers were to be used in Mexico, does not lead the court to find otherwise since the Mexicans likewise should have known of the danger. The plaintiff offered no witnesses to testify as to the standards of usage or the trade knowledge in Mexico and the court accordingly concludes that it cannot assume that the Mexicans interpret “washed rock” differently or are ignorant of the danger of hauling cohesive material in long trailers without testimony to that effect.

The plaintiff cites Ford Motor Co. v. Matthews, 291 So.2d 169, 174 (Miss.1974) in support of the proposition that the alleged misuse of the Palmer trailers in hauling material other than washed rock or gravel was reasonably foreseeable and that such a foreseeable use renders Palmer strictly liable. However, in the Matthews decision, the buyer was apparently not a “merchant” under the provisions of the UCC since the opinion fails to state that Matthews customarily dealt in the buying and/or selling of tractors. See Miss.Code Ann. section 76-2-104(1) (1972). Here, Randall’s deposition reflects that Global sells tractor and trailer units all over the United States, that he sells about a thousand trucks in a “good business year,” and exports to other countries, particularly to Singapore, Malaysia, Mexico and Central America. (Randall deposition, p. 13). The proof also establishes that Lopez and the ultimate Mexican customers were likewise experienced in buying and selling dump trailers and their utilization respectively. Therefore, the court concludes that Randall, acting for Global, and Constructora-Dava, were “merchants” according to the terms of the UCC. As such, the plaintiff buyer in this case stands in a somewhat different position than the buyer in Matthews due to Randall’s supposed superior knowledge. Given the common knowledge in the business of the danger of cohesive material adhering to the front of dump trailers and unevenly discharging during the dumping process and that bob-tail trucks should be used to haul cohesive materials, the court earlier found that not only was the loading and dumping of cohesive material an improper use of the thirty foot Palmer trailers but that it was also an unforeseeable misuse. This reasoning is particularly applicable in view of the stipulation and the testimony of both Randall and Lopez that the trailers were to be used by the Mexican customers to haul washed rock. The plaintiff repeatedly admitted that the defendant Palmer was told that the trailers would be used to haul washed rock. The court is further influenced by the argument that if all types of material could be properly hauled and dumped in any size trailer, then buyers would have no cause to purchase shorter trailers or bobtail trucks since the objective of those in the hauling business is to dispose of as much material as is possible in the shortest amount of time.

NEGLIGENT DESIGN

In 1971, the Fifth Circuit, applying Mississippi law, stated that in negligent design cases, the court must measure the reasonableness of a product’s design against objective standards. Ward v. Hobart Mfg. Co., 450 F.2d 1176, 1182 (5th Cir.1971). The Fifth Circuit stated that the criteria most frequently applied in negligent design cases is: (1) the conformity of the product’s design to the practices of other manufacturers in the industry on the date of the manufacture of the product; (2) the open and obvious nature of the alleged danger; and (3) the extent of the buyer’s use of the product alleged to be defective and the period of time involved in the use by the buyer and/or others prior to the injury without any harmful effects. Id. at 1182.

Considering these criteria, and the court’s finding that the plaintiff failed to prove the existence of á defect, the court concludes that the plaintiff is not entitled to recovery under the theory of negligent design.' It is undisputed that all three of the Palmer trailers that overturned did so on the first occasion of their use. However, the extent of the buyer’s use of the product prior to the harmful incident is but one factor for the court to consider. The court has stated its opinion that the loading of the 30 foot triaxle Palmer trailers with cohesive material was a misuse of the product according to the common knowledge held by those in the hauling business and was not the intended use as described by Randall in his telephone conversation with Jason Gallop when Randall ordered the five trailers. Given the court’s finding that Constructora-Dava’s use of the trailers was a misuse that was not reasonably foreseeable by the manufacturerer, particularly in light of Randall’s statements as to the use of the Palmer trailers, and the testimony of Dr. Forbes that the Palmer 30 foot trailers essentially conform to the design features and characteristics of other trailers manufacturered by competitors of Palmer Machine Works, the court cannot hold otherwise.

IMPLIED WARRANTY OF MERCHANTABILITY

Mississippi Code Annotated section 75-2-314 (1972) provides that “a warranty that the goods shall be merchantable is implied in a contract for their sale if a seller is a merchant with respect to goods of that kind.” As stated previously, the court concludes that Palmer is a “merchant” according to section 75-2-104(1) since the testimony reflects that it deals in the selling of dump trailers on a regular basis. Section 75-2-314 further states that, in order for goods to be considered merchantable, they must at least pass without objection in the trade and be fit for the ordinary purposes for which the goods are to be used. Miss.Code Ann. section 75-2-314(2)(a), (c) (1972). Again, however, due to the court’s conclusion that the Palmer trailers were subjected to an improper use, the court is of the opinion that the trailers were not used for an “ordinary purpose” as required by section 75-2-314 and that therefore, no breach of the implied warranty of merchantability exists. In reaching this conclusion, the court is guided by case law indicating that where recovery under section 402A of the Restatement (Second) of Torts is denied, recovery under UCC section 2-314 is also improper. Gumbs v. International Harvester, Inc., 718 F.2d 88, 95 (3d Cir.1983) (holding that where the jury found no liability under section 402A but allowed recovery under an interrogatory encompassing both breach of implied warranty and merchantability and implied warranty of fitness for a particular purpose, then jury’s answers to interrogatories were irreconcilable).

IMPLIED WARRANTY OF FITNESS

FOR A PARTICULAR PURPOSE

In order for the plaintiff to recover on the implied warranty of fitness for a particular purpose under Mississippi Code Annotated section 75-2-315 (1972), it must establish the existence of three conditions:

(1) The seller must have reason to know the buyer’s particular purpose.
(2) The seller must have reason to know that the buyer is relying on the seller’s skill or judgment to furnish appropriate goods.
(3) The buyer must, in fact, rely upon the seller’s skill or judgment.

J. White & Summers Handbook of the Law under the Uniform Commercial Code at 358 (2d Ed.1980).

The testimony before the court establishes that John Randall of Global stated the buyer’s particular purpose to be that of hauling “washed rock and gravel.” The plaintiff states that it informed Palmer of the general specifications as described by Lopez but that Global was relying on Palmer to determine the exact specifications and types of material to be used in manufacturing a safe and workable product. As the plaintiff urges, the doctrine that goods manufactured to a buyer’s specifications do not give rise to an implied warranty of fitness for a particular purpose applies only when the buyer furnishes precise specifications. Aluminum Company of America v. Electro Flo Corp., 451 F.2d 1115, 1119 (10th Cir.1971). However, in designing the product, Palmer had a right to rely on Global’s assertion that the trailers were to be used to haul washed rock. Since the court finds that Global’s customer did not, in fact, haul washed rock but instead hauled a rock and dirt or clay combination, the court holds that any breach of implied warranty of fitness for a particular purpose was the result of the ultimate purchaser’s use of the product for other than the stated particular purpose and that allowing recovery under section 75-2-315 would be improper.

BREACH OF EXPRESS WARRANTY

The plaintiff introduced a brochure distributed by Palmer and ultimately received by John Randall depicting the Palmer frame-type trailer and stating that the trailer “[h]as the necessary design strength for all types of material hauling and dumping. Ideal for drop loading, dumping into high hoppers or spreader machines.” The court concludes that these statements constitute more than the expression of an opinion by the seller or “puffing” for which liability cannot be imposed under Mississippi Code Annotated section 75-2-313 (1972). However, for an affirmation of fact or a sample or model to be considered an express warranty, the affirmation or promise made by the seller must relate to the goods and form “a part of the basis of the bargain.” Miss.Code Ann. section 75-2-313(l)(a) (1972). John Randall, when questioned on direct examination as to whether he received the brochure, stated that he had not received a brochure prior to the time when he began looking for a manufacturer to fill the order placed by Lopez but that he later received a brochure, although he did not know when he received it. This leaves open the question as to whether Randall received Palmer’s brochure immediately prior to or at the time of the placing of the order with Palmer for the 30 foot trailers. The cases construing section 75-2-313 almost uniformly hold that where an affirmation of fact is made subsequent to the making of the contract, the affirmation is not “part of the basis of the bargain” and it is, therefore, not an express warranty under the UCC provisions. See, e.g., Speed Fastners, Inc. v. Newsom, 382 F.2d 395, 397 (10th Cir.1967) (where no evidence indicating buyer relied on statement and pamphlet or any promise or description, proof failed to establish an express warranty); Hagenbuch v. Snap-On-Tools Corp., 339 F.Supp. 676, 680 (D.N.H.1972) (where evidence indicating that plaintiff received catalog but no evidence that he relied on catalog description, plaintiff unable to recover for breach of express warranty); Cuthbertson v. Clark Equipment Co., 448 A.2d 315, 321 (Me.1982) (no breach of express warranty or warranty against defects of new front-end loader in owner’s manual not seen by buyer until after purchase since not part of basis of bargain and therefore, not express warranty under UCC 2-313); Anderson v. Heron Engineering Co., 198 Colo. 391, 604 P.2d 674 (1979) (in order for statement made in seller’s brochure to constitute an express warranty, buyer must have had knowledge of statement at time of making purchase). As stated in Anderson’s Uniform Commercial Code:

The question of whether the statements in newspaper advertisements, catalogs, circulars, etc., of the seller enter into and become a part of the contract of sale is one which depends largely on a particular circumstance. It has frequently been held that such affirmations may be the basis of express warranties, if the buyer had knowledge thereof and acted thereon____ In some cases, it has been held that representations contained in the advertisements did not become a part of the contract of sale, because the evidence showed that the buyer did not act on the basis of such representations, but upon his own personal examination or other information.

Anderson’s Uniform Commercial Code, section 2-313:42 (1970-1974 Cumulative Supplement).

The Second Circuit Court of Appeals, on the other hand, has stated that the precise time when an affirmation of fact is made is immaterial and that the sole question as to whether the affirmation is to be considered a part of the basis of the bargain is whether the language used is fairly considered as part of the contract. Bigelow v. Agway, Inc., 506 F.2d 551, 555 n. 6 (2nd Cir.1974). In Bigelow, the second circuit wrote that “If language is used after the closing of the deal (as when the buyer when taking delivery asks and receives an additional assurance), the warranty becomes a modification, and need not be supported by consideration if it is otherwise reasonable and in order,” citing UCC section 2-209. 506 F.2d at 555 n. 6. However, by the court’s example of a buyer taking delivery after the sale and receiving an additional assurance, the court of appeals indicates that the usual contractual prerequisite of mutual assent must be found to exist for such a modification to occur. If the buyer is not aware of the affirmation of fact and there is no evidence of any reliance on such affirmation, then it would seem that the mutual assent requirement is not met such that a binding modification does not exist.

Given the express language used in UCC section 2-313 and the majority of the cases holding that the buyer must both be knowledgeable of and rely on the affirmation of fact before an express warranty is created, the court concludes that the plaintiff failed to prove by a preponderance of the evidence that the statements contained in the Palmer brochure were relied upon by Randall prior to or contemporaneously with the making of the contract between Global and Palmer. Therefore, recovery under the theory of breach of express warranty is also precluded.

THE FOURTH AND FIFTH TRAILERS

The two undamaged Palmer trailers are still being held in storage by Global in Houston, Texas. By letter dated January 28,1981, Global notified Palmer of its rejection of all five of the Palmer trailers sold to Global and ultimately used by Constructora-Dava in Mexico. Under Mississippi Code Annotated, section 75-2-601 (1972), the buyer may reject delivered goods if they “fail in any respect to conform to the contract____” Since the court concludes that the cause of the tipovers of the previous three Palmer trailers was the misuse of the product rather than the existence of a defect, the court holds that the rejection of the goods was improper such that Palmer is not required to retake possession of the goods or refund the purchase price for the two unused trailers.

THE THIRD TRAILER

It is undisputed that Lawrence R. Palmer, president of Palmer Machine Works, Inc., observed and supervised the loading and dumping of the third Palmer trailer that overturned when raised to the third stage of the dumping process. The court has previously stated its opinion that the plaintiff failed to prove the existence of a defect in the design of the Palmer trailers. The court, however, is also of the opinion that Palmer was negligent in failing to object to the improper loading of the third trailer and that his company should not be able to reap the benefits of his own negligence. Although Palmer testified that he told Lopez that the third trailer would not haul the type of material loaded into the third trailer, Palmer, according to his testimony, failed to state his objection prior to the loading of the trailer. In a letter to John Randall, dated December 23, 1980, Palmer stated that when the trailer reached its third stage, that “[ujnfortunately this is where we should have lowered the trailer, but I was still trying to watch the abovementioned areas of the trailer construction to see if anything was happening to them.” Palmer’s stated purpose in going to Mexico was to duplicate the loading and dumping procedure that occurred with regard to the first of the two Palmer trailers. Though Lopez testified that Palmer did not instruct any particular type of material to be placed in the third trailer but only ordered that the same material placed in the first two trailers be also placed in the third trailer, the court is of the opinion that Palmer allowed his desire to recreate the procedures resulting in the first two trailer overturns to cloud or outweigh what he knew, and later stated, to be an improper purpose. Accordingly, the court holds that Palmer is estopped from asserting the defense of misuse of the product as to the third trailer. A federal district court may exercise its inherent equitable powers to achieve justice. Alexander v. Hill, 707 F.2d 780, 783 (4th Cir.), cert. denied, Syria v. Alexander, 464 U.S. 874, 104 S.Ct. 206, 78 L.Ed.2d 183 (1983); Goldberg v. Medtronic, Inc., 686 F.2d 1219, 1229 (7th Cir.1982).

The court accordingly awards damages to the plaintiff as follows:

2. $525.00, representing the lost profits on the sale of one Palmer trailer, less adjustment for missing tires and parts;

3. $423.35, representing one-fifth of the expenses incurred by Lopez;

4. One-fifth of the freight expense of $11,600.00, or $2,320.00.

A Judgment shall be entered accordingly.

JUDGMENT

Pursuant to a Memorandum Opinion this day issued, it is ORDERED as follows:

1. That the Plaintiff Global Truck & Equipment Co., Inc. be and it is hereby awarded judgment of and from the Defendant Palmer Machine Works, Inc. in the amount of $19,543.35 as the same pertains to trailer number 3, or the trailer that overturned in Mexico in Palmer’s presence.

2. That all remaining claims of the Plaintiff Global Truck & Equipment Co., Inc. against the Defendant Palmer Machine Works, Inc. be and the same are hereby dismissed with prejudice.

1. $16,275.00 representing the cost of one Palmer trailer;

3. That each party to this suit bear his respective cost.

APPENDIX I

      . The plaintiff contends that the trailers were to carry a maximum 36 cubic yard capacity and that this is what the plaintiff ordered. In Randall’s deposition, however, he stated that "... I told him I needed a frame type trailer and [it] needed to be 30 foot long, 36 or 38 yard capacity.” According to Jason Gallop of Palmer, he informed Randall that the 30 foot Palmer trailers, with the requested side lengths, would have a 38 cubic yard capacity to which, Gallop testified, Randall consented. The court accordingly finds that Global cannot dispute the 38 cubic yard capacity as excessive since, according to its agent’s own deposition, such capacity was acceptable to him.

      . During the telephone conversation, Gallop stated to Randall that the 30 foot trailers were too big and heavy under the laws of Mississippi and most other states since they would exceed legal weight restrictions on public roads when loaded. Randall then informed Gallop that the trailers were to be used in Mexico where the load weight of 30 foot trailers is permissible.

      . “Washed rock" according to the industry manuals has a weight of 2,700 pounds per cubic yard.

      . A Michigan trial judge came to a similar conclusion in Martin Bros. Mill & Foundry Supply Co. v. Fruehauf Corporation, 11 Mich.App. 573, 161 N.W.2d 767, 768 (1968). In a per curiam opinion the Michigan Court of Appeals affirmed a trial judge's finding that a Freuhauf trailer tipover was the result of a load imbalance rather than defective design.

      . The only writing consists of notations Gallop made when he took Randall’s order over the telephone. (See plaintiffs exhibit 32). This memorandum is not signed by Palmer or any agent of the corporation. Even if Gallop or Palmer had signed the memorandum such that it might be considered a signed writing, it is clear that the figure of $16,275.00, representing an amount for a "15 percent deposit and cash on delivery," is insufficient as a deposit for twenty-five trailers. Rather, the deposit check sent for $12,206.25 (plaintiff exhibit P-A) is only 15 percent of the cost of five trailers. Since the deposit check only covered the cost of five trailers, it is made even more clear that the contract or order was for five trailers only.

        . See supra note 5.

      . When Randall was asked whether he identified himself as dealing in trucks and trailers, Randall replied, "Oh, I am sorry, I am sure I did." (Randall’s deposition, p. 32).

      . See supra note 7.

      . According to Shepard’s Citations (6th ed.1982) the Ward decision was partially overruled in Porter v. American Optical Corp., 641 F.2d 1128, 1141 (5th Cir.1981). However, a reading of the relevant portions of the opinion leaves the court to conclude that Ward was only distinguished. As the court stated:
      We do not feel strictly bound by the reasoning set out in Ward since in that case the court was applying Mississippi law and found little state law in the area of negligent design of products. The differing facts and evidence also necessitate distinguishment. We are obligated to view a jury’s perception of reasonable design under Louisiana law. Most of the pertinent Louisiana cases speaking to products liability have been decided since the Ward decision.
      641 F.2d at 1141 n. 17.

      . Constructora-Dava paid Global $90,000.00 for the five trailers. When the trailers were returned to Global, only $84,000.00 was refunded to Constructora-Dava, $6,000.00 being subtracted for missing tires and parts.


author: WEXLER, District Judge.

text:
    LONG ISLAND LIGHTING COMPANY and the United States of America, Plaintiffs, and Citizens for an Orderly Energy Policy, Inc. and the Shoreham-Wading River Central School District, Plaintiff-Intervenors, v. The COUNTY OF SUFFOLK, NEW YORK, a New York Municipal Corporation, and Peter F. Cohalan, in his Official Capacity as Suffolk County Executive, Defendants,
    No. CV 86-0174, CV 86-0355.
    United States District Court, E.D. New York.
    Feb. 10, 1986.

      Hunton & Williams, by Dennis Sisk, New fork City, for plaintiff LILCO.
    Raphael Gomez, Richard K. Willard, Asst. Atty. Gen., Washington, D.C., for plaintiff.
    Ronald A. Zumbrun, Sam Kazman, and Lucinda Low Swartz, Washington, D.C., for plaintiff-intervenor Citizens for an Orderly Energy Policy, Inc.
    Lou Lewis, Poughkeepsie, N.Y., for plaintiff-intervenor Shoreham-Wading River Cent. School Dist.
    Martin B. Ashare, Suffolk Co. Atty., Hauppauge, N.Y., Kirkpatrick & Lockhart, by Herbert C. Brown, Lawrence C. Lanpher, and David Brownlee, Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

WEXLER, 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 the cases. 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 Shore-ham 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. Judge Bartels 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. § 2011-282 (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, then District Court Judge Altimari held that Suffolk County’s Resolution III — 1983, by which the County withdrew from the emergency planning process and declared Shore-ham 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, ¶ 18.

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 local governments, Cuomo v. LILCO, No. 84-4615 (N.Y.Sup.Ct. Suffolk Cty. Feb. 20, 1985). That court granted plaintiffs’ motion for partial declaratory judgment.

Despite this decision, the NRC declared on June 4, 1985 that it saw “no reason why [LILCO] should not be allowed to exercise those parts of the plan which it may legally exercise.” Letter from Samuel J. Chilk, NRC Secretary to William. J. Dircks, NRC Executive Director for Operations (June 4, 1985). Although the NRC realized that the state court’s decision in Cuomo could prevent a full exercise of the Plan, a test could “yield meaningful results, even though such an exercise may not satisfy all of the requirements of NRC’s regulations.” Id. FEMA was informed of the NRC’s decision and in October 1985, FEMA informed the NRC that it would be able to conduct a test of LILCO’s Plan. FEMA’s representative responded, however, that the non-participation of state and local governments, a situation “dramatically different” from other New York test sites, “would not allow us [FEMA] sufficient demonstration to reach a finding of reasonable assurance.” Letter from Samuel Speck, FEMA, to William Dircks, NRC Executive Director for Operations (October 29, 1985). Mr. Speck stated, however, that this would not preclude the conduct of an exercise and that FEMA’s report would be valuable to the NRC in its licensing decision. Mr. Speck concluded that an exercise could be conducted in mid-January 1986, but, in the event of a delay, another test could not be scheduled for at least 90 days. Id. Both Suffolk County and New York State indicated their opposition to the test. In early December, FEMA declared its intention to conduct a test of LILCO’s Plan on February 13, 1986.

C. LOCAL LAW 2-86

On December 23,1985, the Suffolk County Legislature introduced and passed Resolution 1255-1985, which adopted Local Law 2-86. That law is the subject of this litigation. Section 2 makes it a crime, punishable by both fine and imprisonment,

(a) ...[Fjor any person to conduct or participate in any test or exercise of any response to a natural or man-made emergency situation if that test or exercise includes as part thereof that the roles or governmental functions of any Suffolk County official will be performed or simulated, and if the Suffolk County Legislature, pursuant to the procedures set forth in Section 3 and 4 of this law, has issued via resolution a notice of disapproval of such performance or simulation of County roles or governmental function [or]
(b) ... [F]or any person to conduct or participate in any test or exercise of any response to a natural or man-made emergency situation if that test or exercise includes as part thereof that the roles or governmental functions of any Suffolk County official will be performed or simulated, and if the person shall have failed to comply with the procedures set forth in Sections 3(a) and 3(b) of this' Local Law.

Local Law 2-86 § 2(a), (b) (enacted Dec. 23, 1985, approved January 13, 1986). Section 3 of the Local Law sets out the procedures that a person must follow in order to obtain the approval of the County Legislature. At least twenty-five days before any proposed test, an applicant must submit to the Legislature a description of the proposed test. The Legislature shall review the submission, convene a public hearing, and “shall determine ... whether the proposed performance or simulation of County roles or governmental functions constitutes an interference with the public’s use of or access to public property, or unauthorized performance of governmental functions, or a usurpation or other impairment of the County’s police powers____” Local Law 2-86 § 3(e). If the Legislature disapproves of a proposed test, the Clerk will transmit the notice of disapproval to the applicant. Violation of the Local Law is a Class A misdemeanor punishable by both one (1) year in prison and a fine of one thousand dollars ($1,000.00).

By Resolution 1255-1985, which adopted the Local Law, the Legislature took cognizance of LILCO’s Plan and the impending test. The Resolution stated in part that:

WHEREAS, the County of Suffolk has not been informed of what roles and governmental functions of the County would be so performed or “simulated,” what actions would be taken by persons carrying out the test, and what public roadways, lands, and other property would be affected during such test; and
WHEREAS, the County of Suffolk finds that it would be inconsistent with its police powers and its duty to prevent such powers from being usurped if it were to remain indifferent to usurpation of its police powers or to allow unauthorized persons to perform or simulate the County’s roles or governmental functions____

Resolution 1255-1985 (adopted Dec. 23, 1985).

LILCO opposed the passage of Local Law 2-86, but to date it has complied with all of the provisions. Although the record before the Court is not complete, it appears that LILCO applied to the Legislature for approval of the February 13 test and supplied additional information to the County Legislature. The County Legislature convened on February 5 to consider LILCO’s application, and on February 7, 1985, issued a resolution of disapproval. The resolution made clear that the Local Law would apply only to LILCO employees and not federal officials.

At approximately the same time, the NRC had before it LILCO’s request to conduct a test of the RERP. On December 26, 1985, just three days after Suffolk County enacted Local Law 2-86, New York State, the County, and the Town of Southampton jointly asked the NRC to cancel the scheduled February 13 exercise. In a 3 to 2 decision dated January 30, 1986, the NRC denied the request. The NRC decided the exercise would be useful in determining whether LILCO’s Plan should be approved and that the simulation would test an important aspect of LILCO’s RERP. The NRC found that the test was “both lawful and necessary to fulfill our responsibility under the Atomic Energy Act to protect the health and safety of the public.” In re Long Island Lighting Company (Shore-ham Nuclear Power Station) (Docket No. 50-32202 Order of January 30, 1986) (footnote omitted). The NRC concluded the order by declaring:

For the past several years the State, County, and Town have been claiming that no adequate plan can be developed for Shoreham, and that the LILCO plan is inadequate. They are entitled, as litigants before us, to advocate that position; they are not, however, entitled to obstruct our inquiry into the facts necessary to enable us to resolve that assertion.

The NRC was aware of the passage of Local Law 2-86, but, because it was not raised in the proceedings, it was not considered.

On January 16, 1986 LILCO commenced this action, seeking declaratory and equitable relief, as well as money damages. In its Complaint, LILCO alleges, among other things, that Local Law 2-86 is a violation of the Supremacy Clause, the Due Process Clause, and the first, fifth, and fourteenth amendments of the United States Constitution. LILCO also alleges that Local Law 2-86 contravenes state law. LILCO moves for a preliminary injunction, Fed.R.Civ.P. 65, and defendants cross-move for dismissal for failure to state a claim. Fed.R.Civ.P. 12(b)(6).

It comes as no surprise that the NRC and FEMA have monitored these developments closely and sought to resolve the controversy in order to avoid a direct confrontation with Suffolk County. In a letter to County Executive Cohalan dated January 22, 1986, officials of both the NRC and FEMA sought to allay the County’s fears about the possible usurpation of County functions. The officials explained that no federal personnel or LILCO employee would be performing a state or local function, although federal officials would play the roles of certain local officials. They explained further that FEMA would observe LILCO’s response to a hypothetical radiological emergency and that there would not be any actual performance of state or local functions, interaction with the public, or any interference with normal, daily activities. Letter to Peter Cohalan from Herzel Plaine, NRC General Counsel, and George Watson, FEMA Acting General Counsel (January 22, 1986). At the same time, the Justice Department sent a similar letter to Cohalan and requested that the Justice Department be informed as to whether any federal personnel would be subject to criminal penalties if they participated in the test. Letter from Richard Willard, Assistant Attorney General, to Peter Cohalan (January 23, 1986). The County Legislature’s Presiding Officer responded with the information that the Legislature would not vote on the issue of disapproval until February 7. Letter from Gregory Blass, Presiding Officer, Suffolk County Legislature, to Richard Willard (January 30, 1986). Unable to wait until that date, the United States commenced its action against Suffolk County and County Executive Cohalan on February 4, one hour before the Court’s scheduled hearing on LILCO’s application for a preliminary injunction. Upon oral motion, the Court consolidated the two lawsuits.

DISCUSSION

It is well-settled in this Circuit that a Court may grant a preliminary injunction upon a showing of (a) irreparable harm and (b) either (1) a demonstrated likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir.1973).

A. IRREPARABLE HARM

After a careful consideration of the facts in this case the Court concludes that LILCO is faced with irreparable harm if preliminary relief is not granted. If the test scheduled for February 13 does not proceed, then at least 90 days will pass before another test can be scheduled, a delay that will cost LILCO at least $100 million and possibly as much as $165 million if, as LILCO alleges, the carrying charges are $55 million a month. Planning and execution of the test necessitate the participation of more than 1800 LILCO employees. According to LILCO, “Rescheduling the exercise would require cancellation and rescheduling of extensive logistical arrangements, such as insuring availability of federal exercise controllers and observers, verifying availability of facilities, and insuring that support organizations are available to participate.” Weismantle Affidavit, ¶ 7. LILCO also asserts that a postponement of the test will necessarily delay LILCO’s efforts to obtain a full-power operating license for the Shoreham facility. Without the electrical generating capacity of the Shoreham plant, LILCO may be unable to meet the projected summer 1986 demand for electricity and therefore fail to maintain its generating reserve requirements. Id., ¶ 18. If LILCO chooses to proceed with the FEMA exercise in the face of Local Law 2-86, then its employees would face potential criminal liability, including fines and imprisonment. If LILCO decides to cancel the test, the NRC would have no choice but to deny LILCO’s application for a license. Shoreham would then lie dormant and LILCO would be forced to absorb the cost of Shoreham while looking elsewhere for electric power.

As a public utility and a private corporation, LILCO may look for financial relief only to its stockholders and, with the consent of the New York State Public Service Commission, to its ratepayers. LILCO’s losses must be borne ultimately by one of these two groups, and the Court takes judicial notice of the resistance by both groups to the rising costs of the Shoreham facility, LILCO’s financial difficulties, and one of the highest rates per kilowatt/hour charged by any public utility in the United States. While the harm posed by LILCO’s inability to test its RERP is largely economic, it is of such huge proportions as to threaten harm that cannot be adequately compensated after the fact by money damages. It is well settled that an act threatening the destruction of an on-going business concern constitutes irreparable harm. John B. Hull, Inc. v. Waterbury Petroleum Products Inc., 588 F.2d 24 (2d Cir.1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979); Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir.1970); Janmort Leasing, Inc. v. Econo-Car International Inc., 475 F.Supp. 1282 (E.D.N.Y.1979). Newport Tire & Rubber Company v. Battery, 504 F.Supp. 143 (E.D.N.Y.1980). Furthermore, because LILCO is a public utility, the prospect of enormous economic injury poses the specter of higher costs and reduced services for all of Long Island’s three million residents.

B. LIKELIHOOD OF SUCCESS ON THE MERITS

Although LILCO has advanced a number of grounds on which this Court can invalidate Local Law 2-86, the parties agree that the overwhelming focus of this lawsuit is the issue of federal preemption, i.e., the extent that federal law displaces state law under the Supremacy Clause. U.S. Const., art. VI, cl. 2. At its core, this case requires an inquiry into the nature of the relationship between the federal and state governments. Unfortunately, the expedited nature of these proceedings does not allow this Court to address these complex issues with the fullness that they deserve, and the Court will not attempt today to reiterate what has been articulated elsewhere. The Court merely observes that since Suffolk County decided to oppose the operation of the Shoreham facility, the disputes before this Court are reduced to essentially one question, namely, whether the acts of the Suffolk County Legislature constitute an impermissible interference with the federal government’s monopoly in the regulation of nuclear safety. See Citizens, 604 F.Supp. at 1096; Suffolk v. LILCO, 554 F.Supp. 399 (E.D.N.Y.1983). If the Local Law is a regulation of nuclear safety or an interference with federal policy in the area of nuclear safety, then the local Law is preempted under the Supremacy Clause.

In both Pacific Gas & Electric Company, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), and Silkwood v. Kerr-McGee Corporation, 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), the United States Supreme Court addressed at length the extent to which the Atomic Energy Act and other federal statutes preempt state power. These cases employed longstanding constitutional standards of preemption, see Ray v. Atlantic Richfield, 435 U.S. 151, 156, 98 S.Ct. 988, 993, 55 L.Ed.2d 179 (1978); Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Rice v. Sanie Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947), from which this Court derives, the following principles. Congress may preempt the state’s power in a particular area by a “clear and manifest” statement to that effect. Ray v. Atlantic Richfield, 435 U.S. at 157, 98 S.Ct. at 994. If Congress demonstrates an intent to occupy an entire field, then any state law falling within that field is preempted expressly. Silkwood v. Kerr-McGee, 464 U.S. at 248, 104 S.Ct. at .621. If Congress has not entirely displaced state regulation over the area, state law is still preempted impliedly (a) to the extent it actually conflicts with federal law, i.e., when it is impossible to comply with both federal and state law, or (b) where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. Silkwood, 464 U.S. at 248, 104 S.Ct. at 621 (citations omitted).

In Pacific Gas & Electric, the Court held that a California state law that imposed a moratorium on the certification of new nuclear power plants until the state found that there was an acceptable means of nuclear waste disposal was not preempted by federal law. In tracing the legislative history of the Atomic Energy Act, the Court noted that the federal government had, at one time, wholly occupied the field of nuclear power. Because Congress later decided to encourage the use of nuclear energy as a means of generating electricity, an elaborate regulatory structure was created to enable the federal government to oversee and assist in the development of nuclear power plants. The Court concluded that the federal government regulated all matters concerning radiological safety while the states would retain their traditional authority in the areas of “need, reliability, cost, and other related state concerns.” Pacific Gas & Electric, 461 U.S. at 205, 103 S.Ct. at 1723.

Although, as the Court noted, public utilities are historically governed solely by the states, the equation changes drastically when public utilities substitute nuclear power plants for the more common oil or coal-fired power plants. The federal government’s historic role as the force behind the discovery and utilization of nuclear power gives it a longstanding monopoly over all matters nuclear. It was not until 1954, when Congress amended the Atomic Energy Act, that parties other than the federal government were allowed to participate in the use of nuclear power. Even so, the 1954 amendments still mandated extensive federal supervision over the licensing, construction, ownership, and operation of nuclear power plants.

The 1959 amendments to the Atomic Energy Act further delineated the relative spheres of influence. The federal government reserves to itself matters of national security, public health, and safety in the utilization of nuclear energy and has delegated much of its authority to the NRC. Pacific Gas & Electric, 461 U.S. at 206, 103 S.Ct. at 1724 (citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 550, 98 S.Ct. 1197, 1215, 55 L.Ed.2d 460 (1977)). As the Court observed, the legislative history indicates that the states may regulate the economics of nuclear power plants. Section 274(k) of the 1959 amendments, 42 U.S.C. § 2021(k), also outlines the powers accorded the states and those retained by the federal government. It states in full that “[n]othing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.” 42 U.S.C. § 2021(k) (1985). This subsection, which has been construed by the Supreme Court as a limit on the preemptive effect of the Atomic Energy Act, indicates that Congress sought to preserve matters of radiological safety to the federal government. Pacific Gas & Electric, 461 U.S. at 209-10, 103 S.Ct. at 1725.

A closer scrutiny of the history of § 274(k) reveals that earlier versions of the bill envisioned a wider role for the states in the regulation of radiation hazards. The AEC took the position that any state or local authority over the area of radiation hazards was preempted unless the AEC entered into an agreement with the state, and in which case the state or locality was preempted only to the extent specified in any such agreement. Letter from A.R. Luedecke, AEC General Manager, to Sen. Anderson, Chairman of the Joint Committee on Atomic Energy (August 26, 1959), reprinted in part in Murphy & LaPierre, Nuclear “Moratorium"Legislation in the States and the Supremacy Clause: A Case of Express Preemption, 76 Colum.L.Rev. 392, .404 & n. 69. See 42 U.S.C. § 2021(b) (authorizing the NRC to enter into agreements with states providing for the discontinuance of federal regulatory authority). Congress adopted the AEC’s position and altered the language to remove any state role, leaving the NRC with exclusive control over radiation hazards. Murphy & LaPierre, 76 Colum.L.Rev. at 405. Significantly, the AEC’s view also included the statement, “Our sole purpose was to leave room for the courts to determine the applicability of particular state laws and regulations dealing with matters on the fringes of the preempted area____” Id. at 404 n. 69.

The 1965 amendments to the Atomic Energy Act also demonstrate Congress’ intention to keep matters of radiological safety well within the federal sphere of authority. Shortly after the decision of the Ninth Circuit in Maun v. United States, 347 F.2d 970 (9th Cir.1965), upholding a local town’s authority to impede the Justice Department’s acquisition of local transmission lines, Congress amended the Atomic Energy Act explicitly to overturn the Ninth Circuit’s decision. The legislative materials accompanying the amendment of § 271 of the Atomic Energy Act, 42 U.S.C. § 2018, make clear that “state and local regulation is permitted only in regard to the rates and services of electric power produced in nuclear facilities. It does not extend to the protection of public health and safety from the special hazards associated with nuclear facilities.” Murphy & LaPierre, 76 Colum.L.Rev. at 408 & nn. 91-93; see Pacific Gas & Electric, 461 U.S. at 211, 103 S.Ct. at 1726. The Supreme Court has stated that its decision in Northern States Power v. Minnesota, 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972), aff'g mem., 447 F.2d 1143 (8th Cir.1971), is fully consistent with this reading of the statute and congressional intent. Pacific Gas & Electric, 461 U.S. at 212, n. 24, 103 S.Ct. at 1726 n. 24.

In Silkwood, the Supreme Court clarified the role of the federal government when it held that federal law did not preempt the application of state tort law to the issue of punitive damages. 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). That case, which concededly has little bearing on the instant case, dealt primarily with the problem of remedies and the effect of the Price-Anderson Act, Pub.L. 85-256, 71 Stat. 576 (1957).

All the parties in this case agree that the legislative history is unenlightening on the question of whether a test of the off-site portion of a public utility’s RERP is preempted. The Court’s own research reveals that in 1980, after the accident at Three Mile Island, Congress amended the Atomic Energy Act to require that “every nuclear power plant will have applicable to it a state emergency response plan that provides reasonable assurance that the public health and safety will not be endangered in the event of an emergency at such plant requiring protective action.” H.R.Rep. 1070, 96th Cong., 2d Sess. 28 (1980), reprinted in 1980 U.S. Code Cong. & Ad.News 2216, 2271. Congress clearly anticipated that the public furor over Three Mile Island could cause states and localities to withdraw from the development of nuclear power plants, but that this withdrawal should not act as a penalty against or veto of the local utility’s undertaking. The compromise fashioned by Congress enabled the NRC to issue a license even if the utility had the sole responsibility for the development of an emergency response plan. Id. Congress, has not deviated from this position and, in 1984, when Congress considered the issue of NRC authorizations, the Senate Committee on Environment and Public Works stated that “[t]he Committee reiterates that the adoption of [the 1980 NRC Authorization Act was] intended to reconfirm the authority of the NRC and FEMA to evaluate an emergency preparedness plan submitted by an applicant or licensee____” S.Rep. 546, 98th Cong., 2d Sess. 14 (1984). In his supplemental views on the Authorization Bill, Senator Simpson defined the role Congress created for the federal government thusly:

With the adoption of section 108, this Committee has now made it clear in three successive NRC authorization bills that it is not our intention to allow a state or locality to prevent a completed facility from operating by refusing to prepare an emergency preparedness plan. It necessarily follows that the Committee did not intend to allow such governmental entities to accomplish the same result by refusing to participate in the exercise or implementation of an otherwise acceptable emergency plan. To accept such a situation would be to completely frustrate this thrice-stated authority and to ignore various other existing federal emergency response responsibilities and authorities that will, if exercised, enable the NRC and FEMA to avoid such an unfortunate and unintended result.

Id. at 22 (supplemental views of Sen. Simpson).

From this examination of the legislative history, the Court concludes that Congress did not consider explicitly the possibility that a local government would attempt to block a test of a RERP by requiring the utility to submit the test for approval and by imposing criminal sanctions on the utility’s employees if the test proceeded in the face of local governments disapproval. It is manifestly clear from an examination of the legislative history, however, that Congress by no means intended to allow local governments to frustrate or impede the NRC's ability to evaluate a utility’s RERP, either passively, through non-acquiesence, or actively, through a prohibition such as Local Law 2-86. This conclusion is consistent with this Court’s prior reading of congressional intent. See Citizens, 604 F.Supp. 1094 & n. 1.

Turning to the facts of this case, the Court is presented with an implied preemption of state law by the federal government rather than an express preemption. Nevertheless, this Court concludes that off-site testing is a necessary element of the NRC’s statutory mandate to evaluate an emergency evacuation plan. Emergency planning for radiological hazards in the event of a nuclear power plant accident, as the legislative history demonstrates, is well within the sphere of authority reserved fon, the federal government by Congress. Federal law encourages but does not require the states and localities to participate in emergency planning. J Congress requires that the NRC, in conjunction with FEMA, will scrutinize any emergency evacuation plan rigorously, regardless of whether it is submitted by the state or by the utility. The NRC has therefore established procedures that will enable it to evaluate a RERP, and off-site testing has been made part of those procedures. The exercise scheduled for February 13 will test LILCO’s ability to discover, evaluate, and respond to a major radiological emergency. The NRC has indicated that it expects the off-site test to yield information that will be essential to the NRC’s determination of whether LILCO’s RERP will provide, in the words of Congress, “reasonable assurance that the issuance of an operating license that public health and safety is not endangered by the operation of the facility.” H.Conf.Rep. 1070, 96th Cong., 2d Sess., U.S.Code Cong. & Admin.News 1980, 2270 (1980). The test is not an abstract exercise meant to evaluate LILCO’s efficiency or reliability as a public utility. It is geared to determine whether LILCO can respond adequately in the event of a major radiological disaster at the Shoreham facility. Therefore, the Court concludes that off-site testing of a utility’s RERP is within the sphere of activities preempted by federal law.

Having determined that protection against radiological hazards, and specifically off-site testing of the RERP, is an area that can be regulated only by federal government, the Court now turns to the issue of whether Local Law 2-86 impermissibly interferes with a preempted federal area. After a thorough examination of all the evidence, this Court concludes that it does so interfere. First, Local Law 2-86 could have the effect of preventing the February 13 test, because LILCO employees could be punished criminally if they participate. Although it is not clear if anyone would indeed be arrested, in its February 4 resolution of disapproval, the County Legislature indicated that it considered LILCO and its employees subject to the criminal sanctions of Local Law 2-86. In the Court’s view, there is hardly any more effective way to interfere with an activity than to arrest the participants and subject them to criminal prosecution. If, on the other hand, the threat of criminal prosecution persuades LILCO to cancel or abort the test, then Local Law 2-86 will have successfully obstructed an area preempted by federal law because FEMA and the NRC would not be able to evaluate LILCO’s ability to implement the RERP. In sum, if the enforcement or specter of Local Law 2-86 prevents LILCO from participating in the test, then Suffolk County will have impeded the NRC’s fact gathering and licensing authority under the Atomic Energy Act.

Second, by failing to articulate a non-safety rationale, Suffolk County impermissibly intruded into a federally preempted area when it enacted Local Law 2-86. Although the federal government reserved to itself areas of safety and left to the states matters of economics such as rate-making, need, reliability, etcetera, the division between federal and state spheres of authority in the area of nuclear power plants is not amenable to a bright line test.

After an examination of the history of Local Law 2-86, the Court concludes that Local Law 2-86 does not proffer an economic rationale for its enactment. Nowhere in either Resolution 1255-1985 or the February 7 resolution of disapproval does the County speak of economic concerns. Instead, the legislation refers broadly to “police powers” that are exercised by the County in both natural and man-made emergencies. The County’s stated concern is that LILCO, a private entity, will usurp the County’s police power by “simulating” or “performing” County functions during the test of LILCO’s emergency plan. The County is on record, however, since Resolution 111-1983, as opposing the opening of the Shoreham facility on the grounds that no emergency evacuation plan is safe for Suffolk County. Indeed, the County’s refusal to participate in the creation of a RERP was based on the County’s independent determination that Shore-ham was not safe. The County’s attempt to stop the- February 13 exercise on the grounds that LILCO will be usurping the County’s police powers is of a piece with the County’s 1983 determination that Shoreham should be abandoned as unsafe. Because the County passed Local Law 2-86 in an attempt to continue its opposition to the Shoreham facility on the basis of a perceived radiological hazard, this Court concludes that Suffolk County has impermissibly intruded into a sphere of authority reserved exclusively to the federal government by Congress.

The County argues that the plaintiff’s motion must be denied in light of the Supreme Court’s holding in Pacific Gas & Electric. The Court disagrees. The California statute at issue in Pacific Gas & Electric bears little resemblance to the statute under consideration here. As LILCO’s counsel pointed out at oral argument, Pacific Gas & Electric dealt with pre-construction regulation of nuclear power plants and the disposal of nuclear byproducts. In this case, by contrast, the County is opposing a federally-sponsored test of LILCO’s RERP after the Shoreham facility has been completed. The pre-construction moratorium litigated in Pacific Gas & Electric fell within the state sphere of authority. As the Supreme Court observed:

A state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field. Moreover, a state judgment that nuclear power is not safe enough to be further developed would conflict directly with the countervailing judgment of the NRC, that nuclear construction may proceed notwithstanding extant uncertainties as to waste disposal. A state prohibition on nuclear construction for safety reasons would also be in the teeth of the Atomic Energy Act’s objective to insure that nuclear technology be safe enough for widespread development and use and would be pre-empted for that reason.

Pacific Gas & Electric, 461 U.S. at 213, 102 S.Ct. at 1727 (citations omitted). This case is unlike Pacific Gas & Electric because the County is interfering with the NRC’s post-construction licensing process. Nor is it clear that the County has advanced a non-safety rationale for Local Law 2-86. The Court also concludes that the decision of the New York State Supreme Court in Cuomo v. LILCO has little application here because that decision was based on state law grounds.

In so ruling, this Court is not acting inconsistently with the prior decision of this Court in Citizens for an Orderly Energy Policy v. Suffolk County, 604 F.Supp. 1084 (E.D.N.Y.1985). States and localities are not required to develop emergency evacuation plans and a refusal to do so can be based on any reason or no reason. It is quite another matter, however, for a local government affirmatively to obstruct the information gathering process of the NRC for a reason that lies within the NRC’s congressionally-mandated sphere of authority. See Citizens, 604 F.Supp. at 1094.

Nor is the controversy moot as against the United States because the County’s February 7 notice of disapproval will not apply to the federal officials involved in the test. To the extent that Local Law 2-86 interferes with LILCO’s ability to participate in the test or persuades LILCO to cancel the test, then the Local Law interferes with the federal government’s ability to monitor LILCO and evaluate the utility’s performance. The Court therefore concludes that LILCO has a likelihood of success on the merits and is entitled to a preliminary injunction. Because the Court decides that Local Law 2-86 is preempted by federal law, the Court takes no position on the merits of the other arguments in LILCO’s complaint.

Accordingly, it is hereby ordered that until further order of the Court, the defendants, their agents, employees, officers, and all other persons or entities acting in concert with defendants or on their behalf, are preliminarily enjoined and restrained from initiating or causing to be initiated any proceeding to enforce any of the criminal sanction provisions of Suffolk County Local Law 2-86 by reason of any conduct or participation in or in inconnection with LILCO’s Radiological Emergency Response Plan for the Shoreham nuclear power plant.

SO ORDERED.


author: FUSTE, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Jose E. PANZARDI-ALVAREZ, a/k/a “Polo”; Gloria Nieves-Baez; Hector Arnaldo Reyes Andujar; Nestor Manuel Cancel Hernandez; Angel Alberto Rosario Hernandez, a/k/a “Galo”; Jose Del Valle Soledad; Arnaldo Hernandez Hernandez, Defendants.
    Crim. No. 85-493 (JAF).
    United States District Court, D. Puerto Rico.
    Feb. 10, 1986.
    H. Manuel Hernández, Asst. U.S. Atty., San Juan, P.R., for plaintiff.
    Joseph Laws, David W. Román, Asst. Federal Public Defenders, Peter John Porrata, Fernando J. Carlo Gorbea, Wilfredo Figueroa Vélez, Efrain Irizarry Colón, Joaquín Monserrate, Edwin Quiñones, José A. Fuentes Agostini, Carlos R. Noriega, San Juan, P.R., for defendants.
   ORDER

FUSTE, District Judge.

Attorney Charles G. White, member of the Bar of the State of Florida, has filed a second petition requesting that he be admitted to practice pro hac vice. His second motion of January 21, 1986, requests that the discretion of the court be exercised for the benefit of defendant José E. Panzardi-Alvarez. Mr. White makes reference to our expanded order and opinion of December 9,1985 in this case, 623 F.Supp. 108 (D.P.R.1985). On said occasion, we denied a similar request. The grounds in support of the second petition, which is the one treated here, are twofold: (a) it is claimed that the motion requesting admission pro hac vice as filed on January 21, 1986, conforms with the requirements of Rule 204.2 of the Rules of the United States District Court for the District of Puerto Rico, and (b) that even though the court denied the first petition, said denial occurred in 1985 and not in 1986. The argument made is that 1985 and 1986 are two different calendar years and that even though the 1985 ruling may have been proper, it did not bar a 1986 renewed application.

We have examined our expanded opinion and order. There we stated:

Rule 204.2 recognizes in this jurisdiction the privilege of a non-resident attorney to request permission to appear pro hac vice subject to procedural requirements. One of these requirements and the one in question here is that the attorney who requests such appearance, is limited to only one in the applicable calendar year.”

Our choice of words on that occasion was misunderstood. The'local rule is written in terms of “case per year”. As a matter of fact, the last paragraph of Rule 204.2 reads as follows: “Appearances allowed pursuant to this rule shall be limited to one case per year.” It is illogical for counsel to argue that if the court had valid reasons to deny the initial petition for admission in late 1985, those reasons would be rendered invalid in early 1986. The one-year requirement is simply a guideline. The logical way to compute the period, as a guideline, would be to compute the year as requiring the lapse of twelve months between one appearance and the other. This is what the court meant by calendar year, that is, that twelve months had to elapse.

There is no question about the fact that the court has discretion in these matters. As we have stated, Rule 204.2 serves as a guideline. At this time we are not prepared to exercise our discretion to favor the request for admission pro hac vice of Mr. Charles G. White. Mr. White was admitted in August of 1985 to appear in a criminal proceeding relating to defendant José E. Panzardi-Alvarez, to wit: the case of United States of America v. Santiago Panzardi-Lespier, et al., Criminal No. 85-117. In addition, Mr. White attempted to seek admission in another proceeding involving Mr. Panzardi, to wit: the case of United States of America v. José E. Panzardi-Alvarez, Criminal No. 85-116. On said occasion, his request for admission was denied by another judge of this court on the basis of the local rule.

The examination of this record does not show any compelling reason of why Mr. White should be admitted to practice in the present case, even assuming that the court would be willing to waive the twelve-month or one-year requirement. Defendant José E. Panzardi-Alvarez has retained competent local counsel, Peter John Porrata, Esq. In addition to the above, the court understands that because of the factual scenario developed in the hearing held on February 7,1986 on the subject of the legal representation of co-defendant Gloria Nieves-Báez, there exist grounds relating to ethical considerations which operate against the admission of attorney Charles G. White for the purposes of this case. The Court will not expand on this matter, inasmuch as we have sealed motions and proceedings regarding said incident. The sealed record reflects, for the purposes of an eventual review, that Mr. White has knowledge of the reasons which have motivated our decision.

The motion for admission pro hac vice is hereby DENIED.

IT IS SO ORDERED.