Northern States Power Company v. State of Minnesota, 3-69-Civ-185.

• Decision Date: 22 December 1970
• Docket Number: No. 3-69-Civ-185.,3-69-Civ-185.
• Citation: 320 F. Supp. 172
• Parties: NORTHERN STATES POWER COMPANY, Plaintiff, v. The STATE OF MINNESOTA, the Minnesota Pollution Control Agency and Robert Tuveson, Howard Anderson, John Borchert, Milton J. Fellows, Steve J. Gadler, Mace Harris, Homer Luick, Mrs. R. C. Nelson and F. Wayne Packard, individually and as members of the Minnesota Pollution Control Agency, and director and secretary of the Minnesota Pollution Control Agency, Defendants.
• Court: U.S. District Court — District of Minnesota

320 F. Supp. 172

NORTHERN STATES POWER COMPANY, Plaintiff, v. The STATE OF MINNESOTA, the Minnesota Pollution Control Agency and Robert Tuveson, Howard Anderson, John Borchert, Milton J. Fellows, Steve J. Gadler, Mace Harris, Homer Luick, Mrs. R. C. Nelson and F. Wayne Packard, individually and as members of the Minnesota Pollution Control Agency, and director and secretary of the Minnesota Pollution Control Agency, Defendants.

No. 3-69-Civ-185.

United States District Court, D. Minnesota, Third Division.

December 22, 1970.

Edward J. Schwartzbauer, William J. Hempel, Donald E. Nelson, Minneapolis, Minn., for plaintiff.

Douglas M. Head, Atty. Gen. of Minnesota, St. Paul, Minn., Sid P. Gislason, New Ulm, Minn., and G. Robert Johnson, Minneapolis, Minn., Sp. Asst. Attys. Gen., for defendants.

MEMORANDUM & DECLARATION

DEVITT, Chief Judge.

The issue in this Declaratory Judgment Action is whether the Atomic Energy Commission's authority to regulate radioactive releases by nuclear power plants is exclusive so as to preclude state action.

The plaintiff is a public utility producing and delivering electrical power in the states of Minnesota, North Dakota, South Dakota and Wisconsin. Upon the grant of a permit from the Atomic Energy Commission (AEC) the plaintiff built an atomic energy generating plant at Monticello, Minnesota, on the Mississippi River 40 miles north of the Twin Cities of Minneapolis and St. Paul. Preliminary testing of the plant is under way. Plaintiff's application for an operating license from the AEC is pending.

The defendants are the State of Minnesota, its Pollution Control Agency, and the members and Executive Director of the Agency. Acting pursuant to a Minnesota law, the Pollution Control Agency (PCA) has issued plaintiff a permit to discharge cooling water and liquid waste into the Mississippi River in connection with operation of the Monticello Plant, but has attached to the grant thereof certain conditions governing the discharge of radioactive waste which, plaintiff contends, are practically impossible of fulfillment, at least in the foreseeable future, and at a prohibitive and unnecessary expense, and all to the detriment of the plaintiff and the consuming public. Plaintiff asserts that Minnesota is without authority to regulate the discharge of radioactive waste because this field of regulation has been preempted by the federal government. Defendants deny this. They assert that Minnesota has the right under the Tenth Amendment to the United States Constitution to protect the health of its citizens and to regulate and prevent pollution within its borders.

Defendants threaten criminal sanctions if plaintiff does not comply with the state-prescribed conditions.

The parties have filed a 24-page stipulation of facts with 21 attached exhibits.

It is stipulated that plaintiff is engaged in interstate commerce. It serves areas in adjoining states with electrical energy and participates with other power suppliers in the operation of a "grid system" which transmits power back and forth between major power systems in the United States depending upon the consumer needs in an area. The Monticello Plant will contribute electric power to this interstate system. The Monticello Plant is being built by a California-based company, the reactor vessel was furnished by an Illinois-based supplier, and nuclear fuel elements for the plant are manufactured in North Carolina. Plaintiff serves electric power to many locally-based industries extensively engaged in interstate commerce, i. e. Minnesota Mining and Manufacturing, Honeywell, Inc., and Burlington Northern Railway Company.

It is not disputed that plaintiff has complied with all federal laws and requirements of the AEC in the construction and expected operation of the Monticello Plant.

The parties have agreed that the PCA requirements governing radioactive discharge from the Monticello Plant cover the same area as, and are more restrictive than, those of the AEC. It is stipulated that "* * * the plant will not be able to commence operations without violating some of the provisions" of the PCA permit and that "such situation may arise before the plant reaches full capacity, and possibly during the testing period." (Stip. ¶ 11.)

A detailed description of the means by which radioactive wastes will be produced and released under the federal laws and the regulations of the AEC is set out in the stipulation. (Stip. ¶¶ 25 through 35.)

It is agreed that an attempt by plaintiff to comply with the stricter state standards would require substantial alterations in the present plant and that "* * * some of the equipment and facilities needed for the systems necessary to attempt compliance with the PCA permit would have to be designed and manufactured for the Monticello Plant * * *." (Stip. ¶ 42.)

By pretrial order No. 1 it was agreed that the adequacy or inadequacy of the federal and of the state regulations to protect the public health and safety is not in issue in this litigation.

By pretrial order No. 2, and by virtue of the fact stipulation of the parties, the court determined that there was no fact issue for determination under the pleadings.

Briefs have been lodged. The Attorneys General of seven states¹ and attorneys for certain members of the Southern Governors' Conference have filed briefs as amicus curiae in support of the position of the defendants. The parties have waived oral argument.

Jurisdiction is established. 28 U.S.C. §§ 1331, 1337. There is a justiciable controversy. Employment of the Declaratory Judgments Law, 28 U.S.C. § 2201, is appropriate.

Under Article VI, Clause 2 of the United States Constitution the laws of the United States are "the supreme law of the land" in areas subject to congressional control. The regulation of atomic energy is a proper field for congressional control in the regulation of interstate commerce (Constitution, Article I, Sec. 8, Clause 3), providing for the common defense and security (Constitution, Article I, Sec. 8, Clauses 11-14), and with respect to United States property and territory (Constitution, Article IV, Sec. 3, Clause 1). The Congress based its enactment of the Atomic Energy Law on these constitutional provisions, 42 U.S.C. § 2011 et seq.

But mere occupation of a field by the federal government does not necessarily preclude concurrent state regulation. The Congress may expressly or impliedly "preempt" the subject. It may expand or contract the scope of a state's power to regulate in an area properly subject to congressional control. Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 769, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945).

The question here is whether Congress has preempted the field of regulation of radioactive releases by nuclear power plants. In my view it has, and Minnesota is without authority to enforce its regulations in this field.

It should be emphasized that we are concerned here, not with the relative merits of the conflicting policies of regulation by the federal and state governments, but with the presence or absence of preemption of the field by the Congress, for as Justice Jackson has observed:

"We cannot resolve conflicts of authority by our judgment as to the wisdom or need of either conflicting policy. The compact between the states creating the Federal Government resolves them as a matter of supremacy. * * *" Franklin Nat'l Bank v. People of State of New York, 347 U.S. 373, 74 S.Ct. 550, 554, 98 L.Ed. 767 (1954).

That Congress has exercised its constitutional power to preempt the field of regulation of radioactive releases by nuclear power plants is made clear by a reading of the federal statutes, the reports of the congressional committees which accompanied their enactment, and by an appraisal of the practical construction which those statutes have received in the administration of the law. The conclusion is reinforced by court decisions, by opinions of the Attorneys General of two states, and by the opinion of the General Counsel of the Atomic Energy Commission. Additionally, and assuming the absence of express congressional intent, an examination of the Atomic Energy Act of 1954 and of its 1959 Amendment in the light of decisions of the United States Supreme Court leads to a finding of an implied congressional intent to exert federal occupancy of the field to the exclusion of state authority.

The Atomic Energy Act of 1954 did not provide any clear expression of congressional intent on the subject of preemption, but the 1959 amendment did. It was enacted—

"to clarify the respective responsibilities * * * of the States and the Commission with respect to the regulation of byproduct, source, and special nuclear materials." 42 U.S.C. § 2021 (a) (1).

and

"to promote an orderly regulatory pattern between the Commission and State governments with respect to nuclear development and use and regulation of byproduct, source, and special nuclear materials." 42 U.S.C. § 2021 (a) (3).

After providing in § 274(b), now 42 U.S.C. § 2021(b), that the AEC may enter into agreements ceding to the states authority over "byproduct materials, source materials" and/or "special nuclear materials in quantities not sufficient to form a critical mass," Congress further provided in § 2021(c) that—

"No agreement entered into pursuant to subsection (b) of this section shall provide for discontinuance of any authority and the Commission shall retain authority and responsibility * * with respect to * * * construction and operation of any production or utilization facility."

The Committee report which accompanied the bill said:

"* * *

"(b) The bill applies to some, but not all, atomic energy activities now regulated exclusively by AEC. It applies principally to radioisotopes, whose use and present licensing by AEC is widespread, but whose hazard is local and limited. Moreover, the radiation hazard from radioisotopes has similarities to that from other radiation sources already

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