Common Wealth Edison Co. v. Pollution Control Board

No. 71-47 (Ill. App. Ct. June 8, 1972)

Title 6-A of the Environmental Control Act of 1970 (Ill. Rev. Stat. 1970 Supplement, Chap. 111 1/2, Sec. 1025a), authorizing state regulation and control of atomic radiation from nuclear power generating facilities, is found unconstitutional, as pre-empted by congressional action. Northern States Power Co. v. Minnesota, 1 ELR 20451 (8th Cir. 1971), aff'd U.S. is found to be on all fours with the present case, and conclusive of the issue.

Counsel for Appellants
Robert H. Wheeler
Isham, Lincoln & Beale
1 First National Plaza, Suite 4200
Chicago, Illinos 60670

Newton N. Minow
Henry L. Mason III
Leibman Williams
Bennett, Baird & Minow
1 First National Plaza
Chicago, Illinois 60670

Counsel for Appellees
James E. Burns
Environmental Law Society
University of Chicago Law School
5316 S. Dorchester Avenue, Apt. 215
Chicago, Illinois 60615

David Langraff
Air and Water Pollution Department
Attorney General's Office
188 W. Randolph Street
Chicago, Illinois 60601

[2 ELR 20560]

PER CURIAM OPINION:

In this appeal Appellant, Commonwealth Edison Company, seeks review pursuant to the Administrative Review Act, Ill. Rev. Stat. Chap. 110, Sec. 265 (1969), and the Environmental Protection Act., Ill. Rev. Stat. Chap. 111 1/2, Sec. 1041 (1970), of two decisions of the Pollution Control Board, Appellee, which placed various conditions upon Appellant's right to operate one of its nuclear steam electric generating units known as Dresden Unit 3. The Environmental Law Society of the University of Chicago Law School was permitted to intervene in the proceeding before the Pollution Control Board and has filed a brief in this proceeding. The only question presented on this appeal is the constitutionality of Title 6-A of the Environmental Control Act of 1970, (Ill. Rev. Stat. 1970 supplement, Chap. 111 1/2, Sec. 1025a). The aforementioned statute authorizes regulation and control of atomic radiation from nuclear power generating facilities.

The issue presented to this court for review is whether Congress can and did constitutionally preempt from any state regulation the setting of radioactive discharge standards, an area of public health and safety, for facilities located within the state. At the time the briefs were filed in this case and oral arguments had the Circuit Court of Appeals for the Eighth District in Northern States Power Co. v. Minnesota, 447 F.2d 1143, had held unconstitutional Minnesota's statute authorizing state control and regulation of nuclear generating facilities. However at the time the instant case was argued and taken under advisement the Northern States case was pending on review in the United States Supreme Court which on April 3, 1972, affirmed Northern States Power Co. v. Minnesota, 447 F.2d 1143. The affirmance of the Circuit Court of Appeals decision by the United States Supreme Court in our opinion is conclusive of the issue presented on this appeal and the only conclusion is that state control and regulation has been preempted by the statutes of the United States.

Accordingly we hold that Title 6-A of the Environmental Control Act of 1970, (Ill. Rev. Stat. 1970, supplement, Chap. 111 1/2, Sec. 1025a) is unconstitutional and the orders entered pursuant thereto by the Pollution Control Board are void and are hereby reversed.