# State ex rel. Miller v. Industrial Commission > Ohio Supreme Court · August 20, 1986 · 26 Ohio St. 3d 110 URL: https://www.frixlaw.com/law-library/cases/6759500 ## Case - **Full name:** The State, ex rel. Miller v. Industrial Commission of Ohio Goodyear Tire & Rubber Company - **Court:** Ohio Supreme Court - **Decided:** August 20, 1986 - **Citations:** 26 Ohio St. 3d 110; 26 Ohio B. 95; 497 N.E.2d 76; 1986 Ohio LEXIS 754 - **Precedential status:** Published - **Opinion:** Dissent by Wright - **Judges:** Brown, Celebrezze, Douglas, Holmes, Locher, Sweeney, Wright - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6759500 ## Opinion text Wright, J., dissenting. As the majority expressed, the Supremacy Clause of the United States Constitution operates to preempt state regulation where there is a direct expression of preemptive congressional intent, Campbell v. Hussey (1961), 368 U.S. 297 ; Pacific Gas & Elec. Co. v. State Energy Resources Conserv. & Dev. Comm. (1983), 461 U.S. 190 , where congressional intent is implied, Burbank v. Lockheed Air Terminal (1973), 411 *113 U.S. 624 ; Bhd. of RR. Trainmen v. Jacksonville Terminal Co. (1969), 394 U.S. 369 , or where there is a conflict between federal and state regulations, Perez v. Campbell (1971), 402 U.S. 637 ; Hines v. Davidowitz (1941), 312 U.S. 52 . What apparently escapes the majority’s scrutiny is that, where the attempted state regulation involves a federal facility, state regulation is permitted “only when and to the extent there is ‘a clear congressional mandate,’ * * * that makes this authorization of state regulation ‘clear and unambiguous.’ ” Hancock v. Train (1976), 426 U.S. 167, 179 . See Kern-Limerick, Inc. v. Scurlock (1954), 347 U.S. 110 ; United States v. United Mine Workers (1947), 330 U.S. 258 ; M’Culloch v. Maryland (1819), 17 U.S. (4 Wheat.) 316, 426 . In Hancock v. Train, supra, the United States Supreme Court stated, “this immunity means that where ‘Congress does not affirmatively declare its instrumentalities or property subject to regulation,’ ‘the federal function must be left free’ of regulation.” Id. at 179. No such congressional exception exists with respect to the Portsmouth Gaseous Diffusion plant. It has been held that any state or private activity that attempts to regulate, supervise, or in any way deal with the safety and health aspects of such facilities is per se invalid. See Pacific Gas & Elec. Co., supra; Northern States Power Co. v. Minnesota (C.A. 8, 1971), 447 F. 2d 1143 , affirmed (1972), 405 U.S. 1035 ; Suffolk v. Long Island Lighting Co. (C.A. 2, 1984), 728 F. 2d 52 . In the instant case, the Atomic Energy Act (“the Act”) requires federal government ownership of and exclusive jurisdiction over nuclear production facilities. Section 2061, Title 42, U.S. Code, provides: “(a) the Commission [the Department of Energy (“DOE”)] as agent of and on behalf of the United States, shall be the exclusive owner of all production facilities * * *. (b) * * * To the extent deemed necessary, the Commission [DOE] is authorized to make, or to continue in effect, contracts with persons obligating them to produce special nuclear material and facilities owned by the Commission. * * * Any contract entered into under this section shall contain provisions * * * obligating the contractor * * * to comply with all safety and security regulations which may be prescribed by the Commission [DOE]. * * *” Clearly, all regulation of the Portsmouth plant is within the exclusive province of the United States, and any state intrusion into that area is absolutely prohibited absent a “clear congressional mandate” to the contrary. Hancock, supra, at 179 . In granting the writ of mandamus and finding no preemption, the majority confuses the exclusivity granted DOE in the regulation of health and safety at its federally owned, contractor-operated facilities with the more limited authority granted the Nuclear Regulatory Commission (“NRC”) over nonfederally owned nuclear power plants. Section 2021, Title 42, U.S. Code, authorizes the establishment of regulatory agreements between the NRC (formerly the Atomic Energy Commission [“AEC”]) and the states. Senate Report No. 870, 86th Cong. 1st Session, 1959 U.S. Code Congres *114 sional and Administrative News 2872, 2875, 2879. In that context, Section 2021(k) provides, “[n]othing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.” See, also, Silkwood v. Kerr-McGee Corp. (1984), 464 U.S. 238 . Recognizing the inherent limitations of the Act, the United States Supreme Court has held that Section 2021(k) “does not represent an affirmative grant of power to the states,” Pacific Gas & Elec. Co., supra, at 210, and in no way disturbs the rights and prerogatives granted the federal government under Sections 2061, 2201(e), and 2201(i), Title 42, U.S. Code. Further, Section 2021(c)(1) specifically excepts from its application any nuclear “production or utilization facility,” such as the Portsmouth plant. That section states: “No agreement entered into pursuant to subsection (b) of this section7 shall provide for discontinuance of any authority and the Commission shall retain authority and responsibility with respect to regulation of — (1) the construction and operation of any production or utilization facility.” Any reliance upon Section 2021 as support for the majority’s determination is clearly misplaced. In Pacific Gas & Elec. Co., supra, the United States Supreme Court outlined the parameters of federal preemption under the Act as follows: “State safety regulation is not pre-empted only when it conflicts with federal law. Rather, the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States. When the Federal Government completely occupies a given field or an identifiable portion of it, as it has done here, the test of preemption is whether ‘the matter on which the State asserts the right to act is in any way regulated by the Federal Act.’ ” Id. at 212-213. The specific safety requirements that Miller seeks to have imposed on the Portsmouth plant fall squarely within an area regulated by the federal government. In the Act, Congress mandated the development of comprehensive federal safety regulations, and through Orders 5481, 5482, and 5483, DOE had promulgated both radiological and nonradiological standards specifically applicable to its federally owned, contractor-operated facilities. In addition, the Goodyear contract itself at Article XX contains an express provision requiring compliance “with all applicable safety and health regulations and requirements * * * of DOE” and prescribing the right to work stoppage if compliance is not effected. In the Atomic Energy Act, Congress did not express an intention to delegate to the states any of the regulatory authority granted to DOE and, with respect to production facilities, mandated that sole regulatory control remain with the United States. As a federally owned facility, the Portsmouth plant is under the exclusive control of DOE and the imposition of any state-promulgated regulations on that operation, including Ohio specific safety requirements, is constitutionally and statutorily impermissible. The Industrial Commission was manifestly correct in finding that it *115 lacked jurisdiction to consider Miller’s application. The issuance of the writ is clearly improper. The decision of the court of appeals should be reversed. Accordingly, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6759500. Public record. Not legal advice.