STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5948

August 7, 1981

ATOMIC ENERGY ACT:

Preemption of State authority to regulate nuclear power plants

NUCLEAR ENERGY:

Authority of State to regulate nuclear power plants

STATE:

Authority of State to regulate nuclear power plants

The State may not regulate rediological matters associated with new nuclear power plants, but may regulate the emission of radioactive air pollution from nuclear power plants.

The State may take action to protect its citizens against nonradiation hazards in connection with the construction and operation of nuclear power plants, but may not abritrarily prohibit their construction within the boundaries of the State.

Honorable John F. Kelly

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion as to the extent of the State's authority to license, regulate, inspect and control the construction and operation of nuclear power plants operating within this State.

The Atomic Energy Act of 1954, 68 Stat 919 (1954); 42 USC 2011 et seq, substantially preempts state regulation of radiological matters connected with the construction and operation of nuclear power plants. OAG, 1961-1962, No 4073, p 565 (October 31, 1962); OAG, 1975-1976, No 4979, p 423 (April 23, 1976). However, a major exception to the historical rule of federal preemption has been created in the Clean Air Act Amendments of 1977, 91 Stat 685; 42 USC 7401 et seq, which specifically authorize the State to regulate radioactive air pollution, including air pollution from nuclear power plants. 42 USC 7416, which was amended by 91 State 1400 as a conforming amendment, provides for the retention of state authority as follows:

Limited regulatory authority over radiological matters may be exercised by a state under an agreement with the federal government pursuant to section 274(b) of the Atomic Energy Act. 42 USC 2021(b).

With respect to those matters in connection with which state authority historically has been preempted, the landmark case is Northern States Power Co v Minnesota, 447 F2d 1143, 1152-1153 (CA 8, 1971), aff'd 405 US 1035; 92 S Ct 1307; 31 L Ed 2d 576 (1972), in which the Court stated:

Northern States Power Co, supra, has been the basis for striking down efforts of state and local legislative bodies to supersede the radiation safety determinations of the Nuclear Regulatory Commission.

One such attempt was a New York City refusal to issue to Columbia University a certificate of health and safety for nuclear reactor operation required by city ordinance prior to commencing operation. Finding that the record before the Court indicated that the city's decision was based on the alleged possibility of injury to the health and safety of the public which might result from an accidental release of radiation, the Court nevertheless declared the ordinance void. United States v New York City, 463 F Supp 604 (SD NY, 1978).

Using a different approach, the California Legislature enacted a prohibition against state site certification for nuclear plants until such time as a state commission finds that there exists a technology for disposal of high level nuclear wastes and that such technology meets with the approval of the federal government. In Pacific Legal Foundation v State Energy Resources Conservation & Development Commission, 472 F Supp 191 (SD CA1, 1979), the statute was found unconstitutional as impinging upon the sphere of regulatory jurisdiction over radiation hazards reserved to the Nuclear Reguatory Commission in the Atomic Energy Act of 1954, supra, Sec. 2021(c). The statute was also held to be void as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress which include encouraging and developing the peaceful use of atomic energy.

In State Department of Environmental Protection v Jersey Central Power & Light Company, 69 NJ 102; 351 A2d 337 (1976), the exclusive jurisdiction of the Nuclear Regulatory Commission over the levels of radioactive effluents discharged from a nuclear power plant precluded a judgment in favor of the State of New Jersey for damages for killing a large number of fish allegedly resulting from an abrupt thermal change in the water discharged into a stream when a nuclear reactor was shut down pursuant to the orders of the Nuclear Regulatory Commission.

A Michigan court has also had an opportunity to address the issue in an action seeking declaratory relief and money damages based on charges that the operation of a nuclear power plant would create a nuisance. In Marshall v Consumers Power Co, 65 Mich App 237; 237 NW2d 266; 82 ALR 3d 729 (1975), lv den, 397 Mich 822 (1976), the Court held that questions as to the workability of the emergency core cooling system and the possibility of nuclear accident could not be reviewed by a state court as they necessitated the evaluation of the radiological hazards which the plant might pose.

Private plaintiffs met much the same reaction in a New Jersey state court with respect to their prayer for an injunction and damages relying on nuisance as well as other tort theories when their piers and docks were invaded by shipworms caused by the water-cooling system of a nuclear power plant increasing the temperature and salinity of certain waterways. The Court in Van Dissel v Jersey Central Power & Light Co, 152 NJ Super 391; 377 A2d 1244 (1977), found the plaintiffs' claim to be based on damages caused by the operation of the portion of the nuclear plant designed to protect against hazards arising from the emission of radioactive waste. The claim was, therefore, found to constitute an attempt to interfere with the radioactive waste discharge system, control of which rested solely with the Nuclear Regulatory Commission, and, accordingly, was not subject to the jurisdiction of a state court.

In two cases involving judicial review of approvals to build nuclear power plants issued by state administrative bodies, the court in each case found that the Atomic Energy Act, supra, preempted the State's authority to make an independent judgment as to the ability of the planned facility to protect against radiation hazards either from the operation of the plant or from the handling of radioactive waste materials created by the nuclear process. Public Interest Research Group of New Jersey, Inc v State Department of Environmental Protection, 152 NJ Super 191; 377 A2d 915 (1977), State ex rel Utility Consumers Council v Public Service Commission, 562 SW2d 688 (Mo App 1978).

With the passage of the Clean Air Act Amendments of 1977, supra, however, the State may independently set air quality standards and emission levels for radioactive air pollutants, as well as set requirements respecting the control or abatement of radioactive air pollution, so long as the standards are not less stringent than those already set by the Environmental Protection Agency or already existing under an applicable state implementation plan. 42 USC 7416.

Included among the radioactive air pollutants subject to State regulation are source material, special nuclear material and byproduct material, all of which, before the 1977 Clean Air Act Amendments, supra, were traditionally reserved to the exclusive regulatory authority of the federal government.

The Conference Report accompanying the enacted 1977 Clean Air Act Amendments, supra, stated unequivocally:

The United States Supreme Court has indicated, however, that the preemption doctrine continues to preclude the State from regulating radioactive water pollution resulting from the discharge into the waterways of source, byproduct or special nuclear materials by a facility licensed by the Nuclear Regulatory Commission. Train v Colorado Public Interest Research Group Inc., 426 US 1; 96 SCt 1938; 48 LEd2d 434 (1976).

In a recent less directly related case, the Michigan Supreme Court has ruled, in part, that a nuclear power plant's air pollution control facilities may meet the intent and purposes of the Air Pollution Act, 1965 PA 348; MCLA 336.11 et seq; MSA 14.58(1) et seq, and, therefore, qualify for tax exempt status, irrespective of whether those facilities are subject to mandatory inspection, review and control by the state. Covert Township Assessor v State Tax Commission, 407 Mich 561; ---- NW2d ---- (1980). In so ruling, the majority made no reference to the 1977 Clean Air Act Amendments, supra, in that the issue of state nuclear regulatory authority was not directly before the Court, and since the facts of the case called for the application of those laws in effect at the time the tax exemptions were originally sought in 1968 and 1972, prior to enactment of the Clean Air Act Amendments of 1977, supra.

States also may control nonradiological aspects connected with the construction and operation of nuclear power plants. The Atomic Energy Act, 42 USC 2021(k), acknowledges and reserves to the states their traditional authority to regulate activities of nuclear power facilities for purposes other than the protection against radiation hazards:

Senate Report No. 870, 86th Cong., 1st Sess, reprinted in 1959 US Code Congressional & Administrative News, p 2872, 2882 which explained the purposes and gave a section-by-section analysis of the then-proposed legislation amending the Atomic Energy Act, stated with respect to section 2021(k) subsequently enacted:

In Northern California Association to Preserve Bodega Head & Harbor, Inc v Public Utilities Commission, 61 Cal 2d 126; 390 P2d 200 (1964), the defendant state agency was held to have the authority to inquire into safety considerations apart from radiation hazards involved in the location of a nuclear reactor at or near an earthquake fault zone. The Court rejected the argument that the inquiry invaded the jurisdiction of the Nuclear Regulatory Commission. The Court found that the safety hazards, one being the use of underground transmission lines insulated with flammable material creating a fire hazard in the event of earthquake, did not concern radiation and, therefore, were the proper subject of state regulation.

In State ex rel Utility Consumers Council v Public Service Commission, supra, the Missouri Court of Appeals made the radiation purposes/nonradiation purposes distinction. In this case, the Court upheld a state agency's statutory authority to issue a certificate to construct a nuclear power plant and in so doing, determine whether the proposed nuclear facility is adequate to meet the needs of the public and is economical when compared to alternative energy sources inasmuch as these concerns are unrelated to radiation hazards. The Court further stated:

In Covert Township Assessor v State Tax Commission, supra, the Court of Appeals held that nuclear power facilities are subject to the permit and monitoring requirements of the Water Resources Commission as to the heat and chlorine content of their liquid discharges.

The Michigan Court of Appeals also has upheld the jurisdiction of Michigan courts to grant injunctive relief where a nuclear plant is the cause of a nonradiological nuisance. Marshall v Consumers Power Co, supra. In this case the plaintiff had alleged that the operation of the proposed plant's cooling pond would, during the winter, cause steam, fog and icing which would create hazardous driving conditions and thereby create a nuisance. Finding the authority to consider plaintiff's claim, the Court stated:

In addition to its common law authority, the State's constitutional power is also relevant. Thus, while the State may not arbitrarily prohibit the construction of nuclear power plants within its boundaries, nevertheless the State may reasonably regulate, and where necessary prohibit, the construction of nuclear power plants at particular locations within its boundaries in accordance with Const 1963, art 4, Sec. 52, which commands as follows:

See the Thomas J. Anderson, Gordon Rockwell Environmental Protection Act, 1970 PA 127; MCLA 691.1201 et seq; MSA 14.528(201) et seq.

Also, the New Jersey Court in Van Dissel v Jersey Central Power & Light Co, supra, held that the Atomic Energy Act, supra, does not bar a private citizen who suffered destruction of the use of piers and docks as a result of the infestation of shipworms proximately caused by the operation of a nuclear plant, from suing the power company for inverse condemnation.

Legal commentators have identified additional areas in which state regulation of atomic energy power installations would not be subject to federal preemption:

In summary, it is my opinion that the State may not regulate radiological matters associated with nuclear power plants, but may regulate the emission of radioactive air pollution. Further, it is my opinion that the State may protect its citizens against nonradiation hazards and may take such other appropriate nonradiation hazard actions as may be necessary in connection with the construction and operation of nuclear power plants where such action does not arbitrarily prohibit their construction within the State's boundaries.

Frank J. Kelley