Northern States Power Company v. The State of Minnesota, the Minnesota Pollution Control Agency

opinion had been until after Not

initially prepared its author aware Fifth Circuit decision of the Foods, Inc., 434 v. L. R. B. Southern

N. Oosterhout, Judge, dis- Circuit Van Judge Dyer’s opinion F.2d 717 opinion. filed an sented and ex- fully supports the conclusion therein pressed herein. Region- by the conducted

The election hereby set aside. Director is

al Judge (spe-

THORNBERRY, Circuit

cially concurring): agree that the Board’s order should

I enforced, and therefore concur

not be result. POWER COM-

NORTHERN STATES PANY, Appellee, MINNESOTA,

The STATE the Minne- OF al., Agency, sota Pollution Control et Appellants.

No. 71-1093. Appeals,

United Court of States Eighth Circuit.

Sept. 7, 1971. regulate ra- pre-emption to

doctrine of releases from nuclear dioactive waste power plants to the exclusion District Court The United States states. answered District of Minnesota for the affirmatively for decision is here and its affirm. We review. August in suit was commenced

This by plaintiff-appellee, Northern Company, re- hereinafter Power States against Northern, the State ferred to as Minnesota, Minnesota Pollution director, Agency Agency Control members, secretary all hereinafter Minnesota. Northern referred to as sought declaring judgment Minnesota a regulate authority to radio- to be without the environ- releases active waste Atty. Johnson, Sp. Asst. Northern’s Monticello Robert ment from G. Atty. Gen., Spannaus, power plant. Gen. Warren Deputy George Reilly, Minnesota, Chief agreed parties It was between Minn., ap- Atty. Minneapolis, for Gen., dispute; no factual issues were pellants. controversy on the decided should be Dorsey, Schwartzbauer, Edward J. stipulations of oral and written basis Halladay, Marquart, Windhorst, West & briefs; upon the sole and that Hempel, Nel- and Donald E. William J. determined was whether issue to be son, Minn., appellee. Minneapolis, through government, United Atty. Burch, Mary- Francis B. Gen. Commission States Atty. land, Downs, Thomas M. Asst. (hereinafter AEC), au- had exclusive Mary- Annapolis, Md., Gen., for State of thority to the radioactive waste land, amici curiae. so releases from nuclear exercising preclude Atty. Minnesota from Jeffords, James M. of Ver- Gen. authority any regulatory Vt., mont, Montpelier, amicus curiae of discharges grant- the Monti- opposition lease of such Vermont ing plant. requested December appellee’s cello On relief com- Judge plaint. filed a memorandum Chief Devitt opinion declaration favorable Atty. Gen., Kelley, Frank J. Robert A. reported at decision Northern. This is Derengoski, Gen., Maslow- Sol. Jerome appeal F.Supp. is from This 172. Gen., ski, Carrier, Attys. J. Asst. Francis judgment March entered on the final Lansing, Mich., amici curiae of Michi- gan Department of Natural Resources is a facts Northern Michigan The relevant are: Department of Public engaged corporation Health. transmission, production, generation, Judge, MATTHES, Before Chief power in of electric distribution and sale BRIGHT, Dakota, VAN Minnesota, OOSTERHOUT North States Judges. Circuit also Wisconsin Dakota South wholly-owned subsidiary. through It a Judge. MATTHES, Chief engaged undisputed is that Northern question posed by action was central this liti- This in interstate commerce. gation spawned by facili- the nuclear utilization whether United States Gov- authority consisting ty electric ernment a nuclear-fueled sole under the plant Act, generating amended, together on the banks located Monticello, legislative history, Mississippi River near evince clear Wright County, Minnesota. Construc- intent the AEC have plant autho- Monticello control over permit regulation. provisional disputed support issued rized field of 19, by pursuant to 1967, position pre-emption, the AEC of its federal June of 104(b) argues develop- of the Atomic that Section Northern also the (42 1954, energy amended Act of U.S.C. and is ment utilization of nuclear 2134(b)), regulations demanding contained policies and the and an area uniform only properly in 10 C.F.R. Part 50. ef- controls which can on a fectuated national scale. applied Northern to the Minnesota Agency appropriate Pollution Control for a waste the It that observe disposal permit plant. question pre-emption for the Monticello the of federal 20, subject May subject It was issued first matter involved is one of regulating specified appellate level impression conditions the federal liquid gaseous and dis- that of radioactive realize too our decision courts. We charges monitoring requiring pro- relationships and may affect future between public utility grams com- for the detection of such releases. states and other other evolutionary imposed by panies the still The Minnesota enter conditions who as, energy produc- embrace the same area but are sub- nuclear reactor field of stringent stantially than, many in im- filed those amici briefs tion. by helpful in posed appeal only the under law. not been AEC the federal this have case,1 January have this the issued a but On our consideration widespread provisional operating North- an the license to indicator of served as litigation. currently generated by under ern which Monticello is interest this apart cognizant operating. purposes pertinent, Finally, that For we are here acting controlling significant undisputed le- and it is that Northern is the appeal compliance gal issue, of this in with all federal laws the currently safety requirements collaterally pervaded by com- the with concerning need pelling the of the AEC. controversies burgeoning supply power an ever urging reversal the district newly coupled rec- population, the judgment, court’s Minnesota asserts maintaining ognized importance the of radioactive waste the ecological and also with balance leases to the the environment is within problems the in Pandora’s box whole under the State’s traditional relationships area of federal-state protect pro- Tenth Amendment responsibilities. general the health, mote wel- pre-emption of federal doctrine vig- fare of its citizens. Minnesota also VI, 2 of Clause its roots in Article orously the Ener- maintains Constitution, the “Su- the States United gy amended, Act of ex- neither Clause,” premacy elevates pressly impliedly pre-empts nor the It above States. law authority to State’s radioactive : vides power plants. waste releases Finally, Constitution, Laws if “This contends even made pre-empt which shall be did intend to United States thereof; regulation, Trea- pre- all area of in Pursuance would not made, made, un- clude ties shall be concomitant or which Authority support Conversely, the United the dis- der State. supreme judgment, Law States, trict shall court’s Northern asserts be the Wisconsin, support Wisconsin 1. Amici curiae briefs of Minne State of Society Engineers, Michigan of Professional sota have been filed De Maryland partment Illinois, the State of of Natural State Resources Michigan Health, Department the State of Vermont. of Public Judges every Land; exclusive, conferred it shall then any thereby, there is no doubt but that states cannot be bound shall State Thing supplementary or Laws exert concomitant in the Constitution Contrary any notwith- the identical to the standing.” Hussey, activity. Campbell v. 7 L.Ed.2d hand, under Tenth On other (1961); Rice v. Santa Fe Elevator Constitution “[t]he Amendment Corp., supra, U.S. at 67 S. powers delegated to the United Ct. 91 L.Ed. 1447. prohibit- Constitution, nor States States, reserved ed Third, where even people.” respectively, or to States regula expressly prohibited dual has not unequivocally declared its exclu tion nor Thus, approach in sionary authority par a exercise of over quiry preemption, it must into federal subject matter, pre-emp Congression federal initially ticular determined that may implied. establishing regulation Bethlehem Steel al action federal Relations New York Labor Co. v. particular in a field been undertaken has 1026, 767, 772, 91 Bd., delegated 67 S.Ct. pursuant powers 330 U.S. one (1947); Napier v. Atlantic L.Ed. 1234 the United the Constitution. States 613, 605, R.R., 47 Corp., 272 U.S. Line Cf. Rice Fe Elevator 331 Coast v. Santa Key (1926). 218, 207, 229-230, 1146, 71 L.Ed. 432 91 L. U.S. S.Ct. 67 S.Ct. (1947). wheth 1447 in the determination factors Ed. pre has, by implication, Congress er Once it is ascertained that the federal pre empted particular so as to a area government regu- possesses power regulation attempts at dual clude state given question area, in late a is (1) in include, the aim inter alia: Congress pow- whether has exercised its Congress by the stat as revealed tent legislation er of a manner as to such history, legislative ute and its itself asserting exclude the con- states Growers, Inc. Florida Lime & Avocado jurisdiction current sub- the same 147-150, supra, Paul, 83 at v. 373 U.S. ject matter. 1210; Hussey, Campbell su v. S.Ct. First, Supreme as not Court 327; 301-302, pra, 82 S.Ct. 368 U.S. at Growers, ed Florida & Lime Avocado (2) pervasiveness federal Paul, 142-143, 132, v. 373 Inc. 83 U.S. di as authorized scheme 1210, (1963), 1217, 10 L.Ed.2d 248 S.Ct. legislation car rected holding of “[a] federal exclusion ried federal admin into effect inescapable requires law no state is Nelson, Pennsylvania v. agency, istrative congressional inquiry design into where 477, 497, 502-504, 100 350 76 S.Ct. U.S. compliance with both and state (1956); Ele L.Ed. Rice Santa Fe 640 v. regulations physical impossibility is 230, Corp., supra, vator 331 at 67 U.S. ”* * * also, Bowles, 327 See Case v. 1146; New Co. v. S.Ct. Bethlehem Steel 92, 102-103, 438, 66 90 L.Ed. U.S. S.Ct. supra, Bd., York State Relations Labor (1946); 552 Franklin Nat’l Bank v. 1026; (3) 774, 330 at U.S. 67 S.Ct. 373, York, 378-379, 347 New U.S. 74 S. regulated nature matter 550, (1954); Ct. 98 L.Ed. 767 Cloverleaf one demands and whether it Patterson, 148, Butter Co. v. 315 U.S. regulation in order to “exclusive federal 156, 491, (1942). 62 S.Ct. 86 L.Ed. 754 in uniformity vital to national achieve Avocado Second, Lime & terests.” Florida absent inevitable collision Paul, Growers, supra, at 373 U.S. between v. the two schemes of it Inc. Diego 1218; 143-144, San must be determined whether 83 S.Ct. Garmon, Building 359 v. displace Trades Council manifested an intent coinci 241-244, 773, given 236, 3 L.Ed. 79 S.Ct. dent state area. U.S. Re (1959); Labor v. unequivocally Guss Utah Where 2d 775 10-11, Board, 1, 77 S. expressly authority U.S. declared that lations 353 Morgan (1957); knowledged by parties 598, 601 1 L.Ed.2d in the district Ct. 377, court, Virginia, 373, pollution 66 328 S.Ct. control v. U.S. (1946); requirements as, and ulti 90 L.Ed. 1317 cover same area substantially stringent mately (4) “whether, under the circum but than, regulations. Also, particular case the federal [state] stances of [a] parties concede, accom as an obstacle law stands as an examina- pur legislation plishment question of the full tion of execution Congress.” objectives poses veals, provision no of the Atomic Ener- 52, 67, Davidowitz, gy 61 expressly 312 U.S. Act Hines v. declares the feder- 399, 404, L.Ed. 581 al See shall have S.Ct. the sole Campbell, 402 U.S. Perez v. also (1971); plants. 29 L.Ed.2d from nuclear S.Ct. emissions Trainmen Jack Brotherhood of R.R. v. then, circumstances, Under these Co., Terminal sonville necessary to determine whether Con- 22 L.Ed.2d S.Ct. gress in- has nevertheless manifested an (1969); Nash Florida Industrial regula- displace tent concurrent state Comm’n., 235, 240, 88 U.S. tion in this field. (1967); Hill v. Florida 19 L.Ed.2d 438 begin with an We examination Watson, ex 65 S. rel. leg- question, development, statute in (1945); Savage 1373, 89 L.Ed. 1782 Ct. history islative and inter- administrative 715, Jones, 225 32 energy pretation. Atomic first became (1912). 1182 56 L.Ed. legislation the of federal with by foregoing princi- the basic Guided Energy the Act enactment of the Atomic pre- ples, turn the merits of the 724, par- of Ch. Stat. 755. question ap- emption presented this Congress as- amount concern of was the peal. surance the common defense and se- of curity development utilization and outset, At the there we observe power, principal use of nuclear since the Congress can no was doubt but energy for of atomic time was acting constitutionally dele- within its military purposes. this Consistent with establishing gated system authority in organic primary objective, the Act creat- spectrum of entire over the pro- monopoly aed for the including energy, imposi- atomic the of duction use fissionable material. and of over health and tion federal controls aspects en- these of nuclear Control over Congressional safety find- standards. Energy ergy the was vested in development, ings concerning use the was established Commission which energy demon- and control of atomic Ownership of all nuclear the Act. constitutionally upon strate reliance and of duction all fissionable facilities granted powers de- the common placed in the Commission was material security, and fense interstate and for- agent for the States. United eign promotion and commerce general welfare. U.S.C. §§ in Technical and scientific advances energy 2012.2 development atomic for peaceful purposes accomplished at were Next, physical impossibility no of dual pace had been a more accelerated than compliance the AEC and Min- with both anticipated. Prompted achieve- these regulations governing nesota radioactive Congress, by 1954, recognized ments, discharges plant from the Monticello presented Rather, ac- on as ac- the 1946 Act “to take record. need revise Intergovernmental Problem, analysis 2. For a of tlie constitu- Relations detailed ; Estep, (1961) Federal tional bases exercise Mich.L.Rev. 41 for Safety in control over health Control of Health and Standards safety they Energy Activi- and standards relate Peacetime Private Atomic E'step Adleman, ties, energy, & atomic see 52 Mich.L.Rev. 333 An Control Radiation Hazards: provide for existing national interest in order to in en- realities atomic count of security throughout the common defense and ergy, our Nation Cong. pub- protect 2d health and S.Rep. No. 83rd world.” 2012. reproduced lic. U.S.C. Sess., § 1954 U.S.Code Admn.News, pp. Cong. & In further amended for Thus, amended in 1954 the Act adding byAct the Atomic new encouraging private en- purpose purpose section. 42 U.S.C. 2021. development and utiliza- terprise in the is set out subsec- new section peaceful pur- energy for tion of atomic (a) expresses the intent of poses. clarify respective re- objective, sponsibilities of the states and AEC accordance with In by-product, respect ownership nu- control of Act allowed with amended materials; source, special nuclear production and utilization facilities clear by programs cooperation persons a license establish who obtained regulatory pattern orderly Otherwise, exclusive between the Commission. regard ownership remained of such facilities the states with associat- of radiation hazards U.S.C. Commission. §§ materials; Similarly, use these 1954 amendment ed with the 2134.3 procedures by-prod- private ownership discontinu- to establish “for authorized reg- leasing special ance of of the Commission’s certain uct material ulatory responsibilities respect material, only li- those but nuclear by-product, special source, Commission. U.S.C. § censed materials, assumption and the thereof 2111.4 the States.” Thus, al- amendments the 1954 while monopolistic govern- (b), principal lowed forfeiture of sub- subsection development section, portion control over ment Con- stantive new energy, gress atomic utilization of government ownership the AEC to discontinue authorizes rights including authority, con- regulatory and con- its through only regard hazards, trol could surrendered with over radiation trol licensing compliance by-product, special AEC with nuclear source to legislation di- quantities which new to scheme not sufficient material regulation Federal over of rected. processing a regulation Discontinuance form critical mass. source, by-product and use of is in these areas accom- AEC special over only plished nuclear material aof when Governor production agree- utilization facilities and the AEC enter into state by important insured in the 1954 amendments to It is to that effect. ment note, however, licensing concedes, comprehensive means of this Minnesota Moreover, system required by discharges nuclear the Act.5 from that radioactive importance any plants with of power which does not fall within sys- categories viewed the a federal enumerated in § maintenance of the three authority regulation may 2021(b) tem this AEC of and control in which over by turn- findings, relinquished means such area is revealed which agreements. replete policy Moreover, is undis- are cerning con- it with statements puted the need for record that Minnesota on this ; private 5-8, 3. Act as Stat. U.S.C. amended also allows §§ ownership production facilities useful § 2073. do have the conduct of research which not analysis procedure step-by-step An of the 5. capacity production for of a sufficient power plant licensing for a nuclear quantity produce to nuclear material Reactor in Power set out the AEC weapon. an atomic 2061. § U.S.C. Development Union of Co. International Workers, the Act was amended to Electrical further ownership private special 6 L.Ed.2d 81 S.Ct. allow licensees. material Pub.L. 88-

U49 agreement assumption language not entered into turn-over (b) provides the AEC. subsection that with “[d]uring agree- the duration such an concerned here with We recognized ment it is that shall State (c) prohibits 2021 which subsection § authority regulate have the materials discontinuing from its authori the AEC agreement protec- covered for the ty responsibility respect with tion of the health and from specified certain activities (Emphasis sup- radiation hazards.” including opera “the construction plied.) Manifestly, if states at production any tion of or utilization fa possessed jurisdiction time concurrent cility,” which would include the dis regulate radiation hazards associated charge of radioactive effluents materials, with these it would have been plant.6 facility However, or unnecessary Congress affirmatively for interprets only pro this subsection recognize regulatory authority their hibiting relinquishment total the fed compact virtue aof state-federal eral over nuclear authority to limit their for the duration plants, but does view the concurrent provisions of and to the such exercise of state control over nuclear fa agreement. language Secondly, the being § cilities as forbidden the Act. repeatedly to a “discontinu- refers agree po- We cannot with Minnesota’s ance” of the Commission’s pow- sition that dual control over atomic authority or or the “retention” “con- er and the level of effluents dis- authority tinuation” in some areas. charged permissible therefrom is under Also, (k) provides that “[n]oth- the Act. While the 1959 amendment ing in this section shall be construed does not use the terms “exclusive” or authority to affect describing existing regulatory “sole” in regulate agency local activities responsibilities Commission, purposes protection against other than abundantly think clear that the whole (Emphasis sup- radiation hazards.” upon tone amendment, of the 1959 exam- plied.) statutory language alone, ination of the Congressional recognition demonstrates view, provision il- In our further possessed AEC at recognition time lustrates regulate sole possess radiation haz- no au- the states intention source, ards by-product, associated thority un- hazards special nuclear materials and with pursuant of an execution less production and utilization agreement surrendering facilities. Of federal control particular importance categories demonstrating authorized un- in the three over you question “Coming 6. There can asked be no doubt the but that to Ramey Director, opera- before, control over “the [Executive construction Mr. any production Committee], purpose tion of the of or utilization fa- Joint cility” necessarily provision includes control to retain under Commission over operation discharged the radioactive effluents the of from the control plant operation. could incident to not feel that we its In did reactor. We analyzing (1) pieces, 2021(c) Hearings up begin into so § the cut to speak. discharge before the Joint Committee on The of effluent to Energy, questions many p. re- Mr. Lowenstein of the involve AEC at the reactor explained: design lating 306 and construction to the procedures. pro- operating “The We did activities covered under this (i) vision itself include considered but are not limited think it could be possession respon- storage away to the from overall at the site and broken activity fuel, sibility operation.” of the licensed of for the reactor special agreed Moreover, and of facts source statement of nuclear material the included, byproduct the court materials used or district submitted operation disposal facility; stipulation duced in re- that “[w]aste manufacture, design, transportation quirements and the of nuclear fuels affect the to and from reactor of nuclear reactor site the dis- cost and sale charge facility. equipment.” of effluent from the and associated Board, supra, only logically 2021(b). ac- Relations at der § 598, 1 L.Ed.2d 601. inclusion of subsec- ceptable reason for it (k) was make to tion within § strong Despite our belief not, by subsec- was clear abundantly clear that makes any amendment, (c) the 1959 tion of regula- occupancy federal of intended limiting way of further except tions over all radiation hazards regulate activities, other than to states jurisdiction expressly ceded was where hazards, associated with those radiation remains, states, it is if doubt the AEC was forbid- over which areas affirmatively by the resolved wealth relinquish den that subsection legislative history accompanying the federal Unless control. amendment. authority radia- possessed over amendment, passage of Prior hazards, of the itali- the inclusion hearings were conducted from extensive (k) quoted portion of subsection cized May 22, 1959, May 19, before meaningless and have been above would Energy on Atomic Joint Committee unnecessary. distinguished composed of which was Representatives. tes- Senators addition, implicit fifty timony nearly and statements existing recognition of the exclusiveness energy, experts in the fields of atomic regulation heard. health and atomic law were hazards which appearing Many of those before consistent reflects amendment legislation. noted, to the previous un- addressed themselves As committee jurisdiction organic Act, question law, federal-state com- der the regard ra- government ownership plete and control with purpose from nuclear reactors. The sole diation hazards established. was Hyde- relinquish See, g., of: Lee M. statements the 1954 amendments was e. ownership production man, the Atomic forfeit Codirector University rights enterprise Project private at where cer- Research Hearings School, provision Michigan before were met. No Law tain conditions Energy, of con- on Atomic for a concomitant surrender Joint Committee 127, 130; Sess., pp. Cong., John 1st 86th radiation hazards trol over AEC, Graham, Commissioner S. the con- to the states was included. To 290-91; Hearings, pp. supra Robert at trary, ownership forfeiture of exclusive Lowenstein, Coun- Office of General rights production AEC, supra p. Hearings, at sel of the compliance ra- with federal controls over Attorney Ferguson, 307; Hon. Jo M. hazards, diation the 1954 Act which Hearings, supra Kentucky, General quired the AEC establish and enforce. p. 324. Finally, opinion are of the firm hearings conducted Subsequent to the the mere enactment of elaborate May Executive order legislation authorizing detailed Coun- Federal Radiation established agreements turnover to effect a cession administration’s and reaffirmed cil authority proposed to the states of amendment support over some associated activities with ra- Identical issued. Sen- Act was the 1954 hazards, specifically prohib- diation introduced bills were and House ate iting relinquishment authority August and the Joint Commit- late others, inescap- over in itself evinces report with cer- out bills voted to tee implication govern- able the federal amendments. committee tain minor possessed authority ment ab- passed in lieu bill was Senate agreements sent by Report authorized bill, and No. Senate House purposes amendment. of the bill Guss Utah explains Labor special source, or nuclear seetion-by-section analysis byproduct, of its gives a intent is to have materials. The provisions.7 regulated and licensed either material by report committee This unanimous by the State Commission, or Congress intended to makes it clear that by governments, not but and local licensing pre-empt the field of the encour- is intended to The bill both. regulation ex- reactors knowledge age their to increase States that it did not clusion of the states and capacities, enter into and to regulation provide intend to for dual regulatory re- agreements to assume hazards, even as to those activ- materials.” sponsibilities such over ities could be turned over to supplied.)8 (Emphasis states. seetion-by- particularly, by in the portions More Relevant of the Comments report bill, analysis section the Joint Committee include: states: “(b) applies some, The bill but all, of the bill excludes energy “Subsection c. atomic

not now activities agreement regulated certain from an un- exclusively by areas ap- AEC. It plies principally der subsection b. between Commis- radioisotopes, licensing and the of a present by sion Governor State. whose use and which, are areas because of widespread, These AEC is but whose hazard special hazards, or for reasons Moreover, their is local and limited. the ra- responsibility, of Federal are believed radioisotopes diation hazard from responsibility continued desirable for similarities to that from other radia- They by regulated include the already the Commission. tion sources operation produc- X-ray construction and States—such machines and including facilities, Licensing tion or utilization reactors; radium. *” * * dangerous activities —such as nuclear reactors —will remain the ex- responsibility clusive the Commis- provides nothing “Subsection k. sion. a line Thus drawn between in the shall be con- new section %7U

types appropriate of activities deemed authority any strued to affect regulation by for individual States agency regulate activ- or local State time, and other activities where protec- purposes ities other than for continued AEC is neces- against radiation hazards. This sary.” (Emphasis supplied.) clear subsection is intended to make it ****** impair the that the bill does It “3. is not intended activities to leave health, room licensees the manifold the exercise dual AEC safety, for or con- for jurisdiction by purposes current and economic other to con- States protection. regulating trol As indicat- than radiation radiation hazards Report reproduced 7. Senate No. was abandoned the 1959 870 is Cong. proposed Adm.News, p. bill submitted it to the Joint U.S.Code & (See John 2872. Statement S. Committee. Commissioner, Graham, Atomic En- proposed leg- ergy Commission, Hearings Before AEC submitted Energy, islation to the on Atomic 86th Joint Committee on Atomic Joint Committee rejec- 290). provided Cong., pp. 27, which would have 1st Sess. juris- proposal the exercise of tion of first circum- dual concurrent may in as- diction both be considered the AEC and the States stance which certaining intent of activities licensed Commis- Co., sion, legislation. have Fox v. Standard Oil would allowed the States 1959 adopt 333, 87, 96, L.Ed. and enforce radiation standards 294 55 S.Ct. 79 U.S. Hawkeye protection Fleming (1935) ; Pearl for the of the health 780 v. (8th 52, regulated Co., Cir. in 58 areas the Button 113 F.2d jurisdiction 1940). AEC. allowance of dual 1152 66, 1063, 58, 84 129 elsewhere, ex- S.Ct. 12 L.Ed.2d has S. the Commission ed (1964).10 regulate authority to

clusive against until radiation hazards tection construing As a final aid in the Atom- an into time the State enters such as Energy Act, amended, as- ic as as to so agreement to as- the Commission presence the certain or absence of Con- (Empha- responsibility.” such sume gressional pre-empt the intention supplied.) sis regulation question, field of we deem appropriate respectful con- to accord re The value of the Joint Committee of sideration to the AEC’s construction explicit port as an manifestation of Allen, supra, 396 the statute. Zuber v. gov Congress of that the federal intent 192, 314, L.Ed.2d U.S. at 90 S.Ct. 24 ernment retain control over 345; In- Power Reactor v. Dev. Co. operation re of nuclear construction Elec., ternational Union of etc. Work- disputed. v. cannot Zuber actors See ers, AFL-CIO, 408, 396, 81 367 U.S. S.Ct. 314, Allen, 168, 186, 90 24 396 U.S. S.Ct. 1529, (1961). 6 L.Ed.2d 924 The AEC (1969); 345 v. L.Ed.2d United States regulations enacted inter- has into its O’Brien, 367, 385, 391 88 U.S. S.Ct. pretation Act, of Atomic 1673, (1968); 20 672 Hudson L.Ed.2d amended, the General of Counsel Distributors, Co., Lilly Inc. Eli 377 v. & Commission. 10 un- C.F.R. In § 8.4. 390-392, 386, 1273, 12 L. 84 U.S. S.Ct. regulation equivocal terms, provides this (1964).9 ex Ed.2d 394 And the view lack states pressed report, course, in this takes power discharge and the conflicting expres precedence of effluents from these facilities hearings opinion de sions standpoint radiological safety Allen, supra, Zuber v. 396 U.S. bates. interpretation premised health. This 186, 314; 90 Banco de at Nacional S.Ct. finding upon the Ener- Farr, 166, (2d v. Cir. Cuba 383 F.2d 175 gy Act of 1954 and as in 1959 amended 1967), 956, cert. denied 390 U.S. 88 S.Ct. pre-empting had the effect of this field (1968); 1038, 1151 Ameri 20 L.Ed.2d regulation government. to the federal CAB, U.S.App. Airlines, can Inc. v. 125 Act, amended, 6, 939, While 365 F.2d 948-949 D.C. legislative history, togeth- O’Brien, supra, when 391 viewed States v. Cf. United Moreover, er, provide strongest 385, manifestation at 88 S.Ct. 1673. U.S. Congressional Congress clearly spelled pre-empt intent out the intent of report field even over the construction the committee takes on operation reactors, light significance of nuclear fact implied find expression also further pre-emption evidence of an pre-empt intention to consistent with intention pervasiveness area federal sponsor AEC. legislation, scheme di- v. Ass’n National Woodwork Mfrs. 1250, rected and NLRB, which the carried AEC has 87 S.Ct. through promulgation into effect (1967); Fruit NLRB L.Ed.2d v. 18 357 regulations Vegetable Packers, U. enforcement of detailed 377 Local & Hussey, supra, determining bell v. intend- U.S. at whether reg- pre-emption 7 L.Ed.2d 299. over a field federal ed frequent- ulation, Supreme Court hearings history upon legislative 10. The ly before the Joint Committee relied consistently question. See, g. main- reflect the AEC e. Brother- the act Chicago, Eng’rs. had tained that v. hood of Locomotive pre-empted licensing 434-37, regarding R., the field I. U.S. Pac. R. R. (1966) ; of nuclear reactors. L.Ed.2d 86 S.Ct. g. testimony Lowenstein, Growers, See, Inc. e. of Mr. Avocado Florida Lime & Paul, supra, Staff Counsel for the AEC. Camp- 248; L.Ed.2d 83 S.Ct. licensing governing power ty protect safety the of atomic and to the health and plants. public. perhaps In is most what the of the law, comprehensive treatise on atomic However, vigorously main Stason, Pierce, Estep & Atoms and the subject regulated the tains matter (1954), the authors commented: Law in the instant case is confined the to licensing pollution “The federal to narrow scheme area of control over development discharged and control utiliza- radioactive effluents energy, plant pe tion of atomic the Monticello established and that this is by Congress culiarly implemented by public and related to the health and AEC, extraordinarily safety pervasive, is of its state’s citizens and there reg- probably pervasive police powers than fore within their to con ulatory by scheme considered trol. See Huron the Su- Portland Cement v.Co. Detroit, preme analogous [pre-emp- Court L. (1960). They cases discussed tion] above. Further- Ed.2d contend that more, sys- licensing very is not an Commission’s area which na part only pro- supervision tem is but a of an admits intensive ture of national gram promote demanding pri- and nor one federal development vate and utilization of in order to achieve uniform energy.” ity atomic vital to national interests. Florida Growers, Paul, Lime & Avocado Inc. v. Id. 1059. 143-44, supra, 373 U.S. at 83 S.Ct. As also noted the authors of 10 L.Ed.2d 248. significant treatise, perva- is acquiesce cannot in this micro- We siveness subject approach cosmic matter subsequently scheme was even broadened regulated. reg- earlier, be As discussed Congress in the enactment of Pub.L. effluents dis- ulation the radioactive Cong., Sess., 85th 1st § now charged plant power from a nuclear gives statutory 42 U.S.C. 2039 which inextricably plan- intertwined with standing Advisory to the on Committee ning, operation construction and entire Safeguards. Reactor Moreover, facility. 6, supra. As of the fn. See program amply breadth of the federal points out as the Northern record comprehensive' demonstrated li- generating major reveals, censing requirements enacted and en- produce power only for custom- electric forced published the AEC and Ti- states, neighboring in their ers own Regula- tle 10 of the Code of Federal part are of an transmis- but interstate tions. system possible the makes sion reg- nature of the purchase matter electric be- sale ulated and the need major systems uniform controls across the nation. tween objectives in order objectives expressed effectuate additionally design supportive legislative the 1954 Act evince finding pre-emption. enacting encourage development, to foster the Atomic energy Act Con- control of atomic so use and gress specific findings made concerning the maximum contribution make development, general use and control of welfare and to increase energy. living. atomic Included in these find- standard U.S.C. §§ ings are objectives a number However, were statements these to the 2012. processing effect “to the maximum extent utilization effectuated source, by-product special defense and with common consistent regulated material must security the health Unit- Thus, ed States public.” the national interest be- U.S.C. § licensing upon through cause their affect direction interstate foreign reactors, commerce and in order scheme for nuclear vide for the common defense and with the securi- the AEC vested 1154 (1959) at desired 1st Sess. proper between balance

solve licensing system short, adequate a dual health progress and industrial by through regulation with exerted both Only control safety standards. government and the federal uniform states enforcement application and effluents by a national the level radioactive promulgated standards discharged power objectives as- from nuclear agency be these dual will “an the accom- to im- create allowed would obstacle the states sured. Were pur- full plishment and of the execution pose the level standards on stricter Congress.” discharged objectives poses waste releases radioactive might Davidowitz, they supra, at 312 U.S. power plants, Hines v. nuclear 404, 67, Com- conceivably overprotective in the S.Ct. at 85 L.Ed. 581. so 61 Hydro-Elec. Coop. pare Iowa unneces- First health area of development FPC, 152, 66 S.Ct. sarily stultify the industrial produc- (1946). energy 906, 90 1143 of atomic L.Ed. and use power. electric tion of Accordingly, reasons stat for the cogently government As one author ed, observed: we hold has exclusive under doc foregoing thought dem- “The pre-emption trine of the con independent licens- state onstrate that operation power struction of nuclear ing retard would the effectiveness necessarily regu plants, which includes meeting responsibilities AEC in its lation of the levels of radioactive ef under the Atomic Act. Where discharged plant. fluents from the by finds lack of the AEC itself limited independent manpower, affirming Finally, judgment resources licensing appropriate state authorities would be upon to comment deem equipped. less well AEC-manufactur- expertise excellence with which cooperative design er-utility Judge efforts matter, Chief Devitt handled this improvements and at standardization as is demonstrated his exhaustive hampered by would be soundly existence opinion. reasoned regulation. dual would likely see and understand less OOSTERHOUT, Judge Circuit VAN complexities safety pro- of a reactor (dissenting). variegated gram' as a result of regret agree I I am unable to ceedings. Proprietary information conclusion reached in the ma- might compromised, and the cost jority opinion. I would reverse. licensing process might reach such proportions Judge majority develop- as to Chief retard the Matthes major opinion fairly ment of this resource.” has the facts new stated agree “Pre-emption: Helman, Approaching I the issues. Licensing power preempt field here Federal-State Conflict over involved Plants,” Marq.L.Rev. preempted Nuclear and that it has in Power 51 fact abso- licensing Cavers, power lute control of nuclear 67 See also “State licensing Responsibility Regulation for civilian use. The Reactors,” Ky.L.J. right impose Atomic carries with it 34 con- (1961); private Neel, ditions on Juris use of en- “Federal or State ergy. imposed diction over Atomic minimum standards Products and Waste Dilemma,” Ky.L.J. and can- —A must be met (1961); agency Estep Adelman, not be lowered a state or & Con “State Intergov imposed The standards trol of Radiation An thereof. Hazards: upon Problem,” ernmental Relations 60 Mich. State Northern (1961); Stason, Estep Company Power in the interest of & States L.Rev. Pierce, preventing pollution air, Law, water Atoms 1062-68 Hearings (1954); than and land are more restrictive those the Joint Com before Cong., imposed Energy, mittee on 86th AEC. Highly important impression is- first 1); versing F.Supp. Port- Huron sues of environment control and state Detroit, City Co. v. land Cement presented and federal 852; relations L.Ed.2d 80 S.Ct. appeal. this v. of St. Louis Railroad Ass’n Terminal Trainmen, 318 Brotherhood Railroad The standards in deter- to be followed 571; 420, Reid 1, mining 63 S.Ct. 87 L.Ed. U.S. preemption whether federal ex- 92, 137, 47 Colorado, 187 23 S.Ct. v. U.S. thus & ists are stated in Lime Florida Growers, L.Ed. Paul, Avocado Inc. 373 v. U.S. 132, 142, 83 S.Ct. 10 L.Ed.2d involving public health In cases not 248: preemption safety, is much readily “The test of whether both federal 24 International Local inferred. regulations may operate, Oliver, the state or of Teamsters v. Brotherhood give way, state must 3 L.Ed.2d U.S. S.Ct. regulations 312; Taylor, whether both can be en- California v. impairing forced without the federal L.Ed.2d 1034. 77 S.Ct. superintendence field, the clearly laws here relevant state they whether are aimed at similar designed category to fall of laws objectives. different safety protect health of Minne- the principle “The to derived from citizens. sota our regula- decisions is that federal agreement the Atomic are that We tion aof field of commerce should not Energy no ex- Act amended contains preemptive regula- be deemed of state govern- press provision that the federal tory power persua- in the absence of au- and exclusive ment shall have sole sive reasons —either that the nature of thority emissions to regulated subject the permits matter power plants. The failure conclusion, no other or that the Con- expressly preempt the to statute the gress has unmistakably so ordained. oversight. perti- Highly is not an field See, g., e. Huron Portland Cement Co. legislative history set forth nent Detroit, supra.” v. Energy”, 68 Note “Jurisdiction —Atomic The tests appro- there stated.are 1294, 1303-1304,1 as fol- Mich.L.Rev. priate applied present tests to be in our lows: agree all possi- situation. We that it is hearings “During amend- on ble for Northern comply with both on held Committee ment Joint the state and regulations, federal explicit Energy, Atomic lack of preemption hence is not established of federal delineation state the first point test. Our of difference operation regarding sponsibilities is on the issue of whether has discussed. of nuclear reactors was “unmistakably” expressed an intent regulations fact, same preempt Supreme the field. The Court current that are the uniformly recognized legitimate has state that controversy between designed interest of the state its laws Toll, counsel Mr. led the AEC protect safety the health and of its cit- suggest need committee, izens and has refused find federal clarification: further preemption over state health and * * * ques- [0]n laws, Toll Mr. absent clear and unmistakable go far this bill does reactors showing part of an on of Con- intent state- abe enough? there Should gress preempt. of Loco- Brotherhood ex- activities these that ment Engineers Chicago, Is- motive Rock preemptive pressly Co., land & Pacific Railroad ? (re- 423, 86 L.Ed.2d 501 Hearings 307.

1. See preference for position, stated [Office Lowenstein. Mr. leaving question to the court: Counsel, Under AEC] General whether that when thing authority inferences lem, I this bill tempted situation. Mr. Lowenstein. suggestion giving create whether Minnesota tion ample of the first State Mr. Toll. the Federal reactors. do this? not er special circumstances sota Minnesota arise, where these would all of the various been an Mr. to that try considered ing Mr. against gested, bill us or not clarify trying to deal with Toll. Lowenstein. begin and end. to interest of the it now believe such as questions consideration think, Governments, define, taking is it Mr. they have kind of to license reactors. attempt or not the area of legal might fairly apparent, as Does gives explicit reference you primarily practically impossible to the situation they has regulations Toll, begin Government desirability of writ- authority this bill licensing, then no Act, is provision under what I legal authority to preemption. areas of and we decided you in other indication out wheth- spell gray areas and certainly think to. encouraged ' is perhaps Federal into account that any specific do that run just specify bill, the reason as to license there this is ^[*] anything you think preemp- existing details. into has at- Minne- State’s Should we to as worth might ^[*] prob- many leave sug- you one are We ex- *? or to it supra, al versed therefore language pressed the view that hood was A similar go, or extent of did not favor on Counsel for AEC on It would Congress knew how to establish feder- “Representative objection preemption and preemption Rock Island & Pacific Railroad writing into the Act.” too. Representative what not a anot think possible courts will is better to leave think it should ing system, they tailed agree writing courts later to avoid preemption words field. Representative Mr. do Mr. Lowenstein. uncertain where the that, intended Locomotive Lowenstein. act, three-judge If had lawyer, pretty is in clear situation existed did make clear questions to the AEC preemption. they our field and preemption, Mr. Durham. to appear defining without law defining preempted incorporated how far it wanted to decide to here, avoid clear statement of what want but I be resolved. should Durham voiced that the Commission Durham. language. do, Supreme expressly providing Engineers Durham. behalf of AEC determination an act like perhaps that saying it, then, but we I to these kind litigation. We can do it. wonder position: and what we are think this clearly set feeling be as clear as the field that there was precise extent what is thought the General precise in the Act. Commission up in so Court I think have up not v. Chica- if that is No such Brother- a licens- I don’t that. defined to the of de- us. I many I their some tried area does cov- The Co., am ex- re- so, go I by the ered full-crew laws. suggested then Toll “Mr. The Atomic as amended Act in order be reworded Act should clear intent a whole reflects no Congress’ pre- explicit intent to make ap- reactors; preempt the field involved empt control nuclear state (42 274(b) § U.S.C.A. Lowenstein, expressing the peal. Section but Mr. willingness 2021) pollution expresses a to transfer is caused types pollutants. pollution the states. some other Control of appears expressly 274(c), to be the not caused radiation is Section pertinent most to radiation control of to the states. Thus the served control power, pollution nuclear reads: various sources is divided complete pollu- and hence unification of “(c) agreement No entered into pos- caused pursuant (b) to subsection this sec- sible. provide for tion shall discontinuance any authority prior adoption and the Commission responsibili- Policy authority shall retain National Environmental Act of ty respect (NEPA) of— con- U.S.C.A. sistently obligations held that were (1) opera- the construction limited to radiation hazards and that any production tion of or utilization * * could not broader consider environmental facility; impacts. Hampshire State of New 274(k) Section reads: Energy Commission, Cir., Atomic “Nothing in this section shall be 170; Coordinating F.2d Calvert Cliffs’ construed to affect of Committee, Inc. v. United States regulate agency or local Energy Commission, Cir., D.C. F.2d purposes activities for than other 1971). (July 23, against tection radiation hazards.” passage since the foregoing The statutes Act and amendments establish the responsibility on the thereto manifested a clear interest AEC to permissible plants. protecting radiation of nuclear our natural environments They power do not state such is ex- in furtherance thereof has enacted the appear Act, entirely It clusive. would Education to be Environmental U.S. 1531; Quality place reasonable for Air Act on the C.A. § 1857; responsibility AEC as licensor Environmental U.S.C.A. making protection Quality Improvement certain would af- Act of be U. 4372-4374; forded the and Envi haz- S.C.A. Water §§ nothing Improvement Quality ards. There ronmental Act of statutes expresses which Cong., a clear 91st 2d Pub.L. Sess. prohibit taking intent the states from steps additional reasonable deemed nec- good A discussion of these acts is essary air, pol- control water and land supra. found in Calvert The en Cliffs' pollution lution whether radia- recognize sig vironmental control acts a pointed or otherwise. As out protecting nificant interest en state majority opinion, language can be points vironment. Calvert Cliffs’ out legislative found in the history sup- adopted subsequent that AEC rules port contrary a language view. The require NEPA that a condition be added legislative statute controls over permits to all nuclear construction which history, ambiguous. which is often Con- obligate per would the holders of the gress was problem aware of applicable mits to observe all environ readily could have solved incorpo- imposed mental standards rating appropriate language in the Act. state law.2 It refused to do so. majority opinion also observes might overprotective adopt land, states Pollution of water and air regulations environmental brought control plants may go stultifying would the extent of about other means than radiation. may Close development factual issues atomic arise whether industrial use of fully comply require- 2. The court Calvert determines ed to Cliffs’ respects the AEC in set out has fail- ments NEPA. agree energy. possibility I such present However, in case the our

exists. on the basis

trial decided case court preemption as a matter

of absolute permit testimony on

law refused to regula- state reasonableness balancing tions protection against of environmental or the develop-

the desired energy.

ment the use of atomic findings upon

court no such issue. made

The issue the reasonableness of the regulations they

state and of whether

were as to burdensome frustrate so

development energy atomic is not

properly us. before judgment

I would reverse the dis-

missal. SINCLAIR, Plaintiff-Appellant,

Jean TURNER, Warden,

John W. Utah State Prison, Defendant-Appellee.

No. 71-1047. Appeals,

United States Court of

Tenth Circuit.

Sept. 1971.

Rehearing Denied Oct.

Case Details

Case Name: Northern States Power Company v. The State of Minnesota, the Minnesota Pollution Control Agency

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Sep 7, 1971

Citation: 447 F.2d 1143

Docket Number: 71-1093_1

Court Abbreviation: 8th Cir.