ELR Citation: ELR 20686
No(s). 84-1294 (7th Cir. Jul 18, 1985)

The court rules that the Atomic Energy Act (AEA) preempts a state law injunction requiring the removal of inseparable radioactive and nonradioactive materials in order to alleviate nonradioactive harm. The court first holds that the district court's refusal to grant an injunction ordering the removal of the wastes from the radioactive waste site is appealable, because the summary judgment had the practical effect of denying the plaintiff's request for permanent injunctive relief and, considering the facts in the light most favorable to the plaintiffs, will lead to serious, perhaps irreparable consequences that can only be effectually challenged by immediate appeal. The court rejects the argument that the plaintiffs' failure to seek a preliminary injunction precludes a finding of serious harm pending a final decision because dumping at the site has ceased and a preliminary injunction forcing final cleanup would be inappropriate.

The court then holds that the Nuclear Regulatory Commission's (NRC's) exclusive authority over the disposal of radioactive materials preempts a state-law injunction ordering removal of the wastes. The AEA is not a pervasive scheme occupying the entire field of regulation of hazards from nuclear fuel activities, indeed, the states' ability to regulate nonradioactive waste disposal is reserved under §274(k) of the AEA. Nonetheless, the court holds that the inseparability of the wastes renders an order for removal of all the wastes inconsistent with the NRC's ability to choose an optimal site for disposal of the radioactive wastes; therefore the state-law remedy is preempted. In a final environmental impact statement (FEIS) the NRC staff has recommended on-site encapsulation, and although other sites are being considered, an injunction in this case would make further litigation possible in other localities barring consideration of those sites. The court notes that the plaintiffs are not left remediless; the NRC is required to consider the nonradiological hazards in drafting a disposal plan, that plan must conform to Environmental Protection Agency waste disposal regulations, the plaintiffs may object to the plan at hearings on the FEIS, and their interests will be represented independently by the state.

One judge concurs in part and dissents in part, agreeing that the district court order is appealable, but arguing that the injunction is not preempted. He argues that the Supreme Court has upheld the application of state laws that directly impact federal regulation of the nuclear industry as long as the purpose of the laws is the regulation of nonradiological risks. In this case, he argues, it is not physically impossible for the defendant to comply with both state and federal law, since NRC approval of on-site encapsulation would only constitute permission for such disposal, and the preclusion of other sites by future litigation is purely hypothetical. He would hold, however, that injunctive relief is not proper pending completion of NRC's administrative proceedings for site selection, on the grounds of primary jurisdiction.

Counsel for Plaintiffs
Walter Maksym
Botti, Marrinaccio & Maksym
2211 York Road, Suite 208, Oakbrook IL 60521
(312) 789-8585

Counsel for Defendant
John Berghoff
Chadwell & Kayser
Sears Tower, Suite 8500, Chicago IL 60606
(312) 876-2100

Before WOOD and CUDAHY, Circuit Judges, and WISDOM, Senior Circuit Judge.^*