ELR Citation: ELR 21369
No(s). 90-1622 (7th Cir. Sep 20, 1990)

The court holds that the Atomic Energy Act (AEA) does not preempt a municipal ordinance targeting health and safety hazards that the city intends to apply to plaintiff's construction of an on-site nuclear waste disposal structure. The court holds that the case is ripe, because the city's stated intent of enforcing its code directly affects plaintiff's waste disposal plans. Moreover, the court has subject matter jurisdiction, because plaintiff claims that any attempt to apply the code would preempt the AEA. Plaintiff has stated a cause of action cognizable by federal courts, because the AEA creates a federal right enforceable under 42 U.S.C. §1983. The court next holds that the AEA does not preempt the code, because AEA §2021(k) allows state and local agencies to regulate nonradiological hazards. On its face, the West Chicago Code regulates only matters unrelated to radiological hazards. The Nuclear Regulatory Commission's comprehensive licensing scheme does not preempt the municipal code's treatment of the same issues so long as the city does not directly interfere with the regulation of radiological hazards. AEA §2021(k) would be meaningless if it did. The court finds that allegations concerning the purpose behind West Chicago's plans to enforce the code are speculative, since the city has not applied its code to subvert the federal licensing scheme. Moreover, the city's exercise of jurisdiction does not create an irreconcilable conflict with federal law. Judging the city's actions now because they may violate federal preemption in the future is inappropriate.

[The district court's opinion is published at 20 ELR 21339.]

Counsel for Plaintiff-Appellant
John C. Berghoff Jr.
Mayer, Brown & Platt
190 S. LaSalle, Chicago IL 60603
(312) 701-7315

Counsel for Defendants-Appellees
James D. Brusslan
Karaganis & White
414 N. Orleans St., Ste. 810, Chicago IL 60610
(312) 836-1177

Before CUMMINGS, EASTERBROOK, and MANION, Circuit Judges.