Amicus Brief — Hartigan v. General Electric Co.

; Office Supreme Court, U.S.

FILED

i No. 82-648 Nov 18 1

IN THE

Supreme Court of the Cinited States

OcTOBER TERM, 1982

. — Attorney General

of Illinois, et al.,

Petitioners,

Vv.

GENERAL ELEcTRIC CoMPANY and

SOUTHERN CALIFORNIA Epison CoMPANY,

Respondents.

On Petition For A Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF OF AMICI CURIAE BALTIMORE GAS

& ELECTRIC COMPANY, ET AL.

November 12,1982

NN

PRESS OF BYRON S$. ADAMS PRINTING, INC., WASHINGTON, D.C.

TABLE OF CONTENTS

Page

EEE .. i

I ia e600 ii

AED GUND eee 2

eee ee 660 6 6 666 00 3

eee e666 600 6

r bees e000 7

I. goo Spent Pust Act ts Pocempted By The Atomic

1 ———

II. The Atomic Energy Act Does Not Violate The Tenth

Amendment

III. The Spent Fuel Act Violates The Commerce Clause 14

IV. supreme Coast Review le Inaggvepriate Because OF

Pending Federal Legislation ................... 16

, . ae 19

TABLE OF AUTHORITIES

CASES: Page

FERC v. Mississippi, 102 S. Ct. 2126 (1982) 14

Hodel v. . Surface Mining & Reclamation Ass'n,

II 13, 14

Illinois v. Kerr-McGee Chemical Corp., 677 F. 2d 571 (7th

Cir. 1982), petit ion for cert. filed, 51 U.S.L.W. 3173

(U.S. Sept. 2, 1982) (No. 82-3860)))))) 8. 9

Minnesota v. NRC, 602 F. 2d 412 (D.C. Cir. 19799 5

Northern States Power Co. v. Minnesota, 447 F. 2d 1143

(8th Cir. 1971), d mem., 405 U. S. 1035 (1972) 8

Pacific Legal Foundation v. State E Resources

Conservation & Development Comm’n, 659 F. 2d 903

(9th Cir. 1981), cert. — sub. nom. Pacific Gus &

Electric Co. v. State Resources Conservation

2 —— tComm'n, 102 S. Ct. 2956 (1982) . -

Potomac Alliance v. NRC, 682 F. 2d 1030(D.C. Cir 1982) 3

G. D. Searle & Co. v. Cohn, 102 S. Ct. 1137 (1982)... 8

Silkwood v. Kerr-McGee 11 N 667 F. 2d 908 (10th Cir.

1981), filed, 51 U.S. L. W. 3025 (U.S. May 20,

r eee

Simmons v. Arkansas Power & Light Co., 655 F. 2d 131

eee eee see esse 800

Township of Lower Alloways Creek v. Public Service

Electric & Gas Co., F. 2d 732 (3d Cir. 1982) 3, 5, 9

Train v. Colorado Public Interest Research Group, Inc.,

| 68) ESS A

United States v. Ci New York, 463 F. Supp. 604

ey eee ee —

United States v. Ortiz, 422 U.S. 891 (1975) .......... —

Vermont Yankee Nuclear Power Corp. v. Natural Re-

sources Defense Council, Inc., U.S. 519 (1978) 15

Washington State — E Construction Trades

Council v. Spellman, F. 2d 627 (9th Cir.

E 8, 11, 12, 16

Table of Authorities Continued

Page

W Corp. v. NRC, 598 F. 2d 759 (3d

STATUTES AND REGULATIONS:

Atomic Energy Act of 1954, 42 U.S.C. § 2011

E passim

Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91

D eee e000 8

3 —

e 6666 600 4

Illinois Spent Fuel Act, Ill. Rev. Stat. ch. 111-1/2,

1 passim

rere. ess ese eee eee eee 90

eee ee eee 0006 90

ee e006 9, 10, 12

„ cccccceccescéoccececccccces 12

LEGISLATIVE AND OTHER AUTHORITIES:

Federal-State e in the Atomic Energy Field:

— gh. Before the Joint Committee on Atomic

Energy, 86th Cong., Ist Sess. (1959) ............. 12

H. an No. 345, —.— Ist Sess. (Nov. 19, 1981) 4

ee SO TOG OPTRA 17, 18

H.R. cH tenant in 128 Cong. Rec. H8161 (daily ed.

Sept. 30, 1982) ......... —— TT, 18

128 Cong. Rec. $13,410 (daily ed. 2 1 1 1 17

DOE, Fiscal Year see Ce —

nergy Supply ee, BOE!

DOE 1 1 — Pro Rule

the of Nuclear Waste, RC

Docket No. PR 50 5 51 (44 Fed. Reg. 61 372) (Dee. 21,

99955 66666666 6 66 6 6 6 6 6 6 6 6 6 6 6 66 660 4

iv

Table of Authorities Continued

Page

DOE, 3 218 Fuel Storage Requirements, DOE/RL-82-1

4 See Fu Storage Requirements, DOE/SR-0007

DOE, Spent Fu rene . 5

NRC, Final — r' Light We Statement

WwW

on Handling and vote he — Power

Reactor Fuel, NUREG-0575 (Aug. e 5

NRC ieactor (AP Status Report on the potas -From-

R) Spent Peet’ Storage Situation (Aug.

rn Budget of the United

States Government, 1 eee 4

13 Weekly Comp. Pres. Doc. 506 (Apr. 7, 1977) 4

17 Weekly Comp. Pres. Doc. 1101 (Oct. 8, 1981) ..... 4

Illinois Senate debate, Dec. 3, 1980 (statement of Senator

r AEE EL tae n ea 11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-648

Tyrone C. Fanner, Attorney General

of Illinois, et al.,

Petitioners,

V.

GENERAL ELECTRIC CoMPANY and

SOUTHERN CALIFORNIA EDISON COMPANY,

Respondents.

On Petition For A Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF OF AMICI CURIAE BALTIMORE GAS

& ELECTRIC COMPANY, ET AL.

Amici curiae Baltimore Gas & Electric Company,

Carolina Power & Light Company, Connecticut Yankee

Atomic Power Company, Florida Power & Light Com-

pany, Georgia Power Company, Gulf States Utilities

Company, Middle South Services, Inc., Northeast Nu-

clear Energy Company, Northern States Power Com-

pany, Pennsylvania Power & Light Company, The Con-

necticut Light & Power Company, The Hartford Electric

Light Company, Virginia Electric & Power Company,

Western Massachusetts Electric Company, Wisconsin

Electric Power Company and Wisconsin Public Service

2

Corporation (hereinafter “Public Utilities”) submit this

brief in opposition to the Petition For A Writ Of Cer-

tiorari filed in this case by Tyrone C. Fahner, Attorney

General of Illinois (hereinafter “the State”). All parties

have consented to the filing of this brief; copies of the

consents have been filed with the Clerk.

INTEREST OF AMICI CURIAE

The Public Utilities are companies that operate or are

constructing commercial nuclear power plants outside

the State of Illinois. These plants generate, or will gener-

ate, spent nuclear fuel during the course of normal opera-

tion. Had it not been held unconstitutional in the court

below, the Illinois Spent Fuel Act, Ill. Rev. Stat. ch. 111

1/2, $§ 230.21-.24 (1980), would have precluded the Public

Utilities from storing their spent fuel at the General

Electric spent fuel storage facility at Morris, Illinois. The

Morris facility is the only “away-from-reactor” spent fuel

storage facility (“AFR”) in the United States that is

currently accepting commercial spent fuel.

The Act also would have had serious implications for

the nation’s nuclear power industry and for the imple-

mentation of a national program for the management of

spent fuel and the permanent disposal of nuclear wastes.

Had it been upheld, the Act would have established the

principle that any state could stop at its borders spent fuel

and radioactive wastes destined for a radioactive waste

repository or interim storage facility in that state,

notwithstanding the national interests involved. Indeed,

the philosophy underlying the Act would allow each state

to prohibit transportation into that state of virtually any

arguably hazardous item from its sister states.

Because of these concerns, the Public Utilities partici-

pated as amici curiae in this case both at the district court

and at the court of appeals, urging that the Spent Fuel

Act should be held unconstitutional. The Public Utilities

likewise urge here that the State’s petition should be

STATEMENT OF FACTS

Nuclear power is one of the major sources of energy in

the nation, but it unavoidably generates radioactive

wastes along with the energy it produces. One of the most

crucial issues for the nation’s nuclear power industry is

the ability to store and ultimately to dispose of radioac-

tive waste in a manner consistent with the public health

and safety. In a nuclear power reactor, the uranium fuel is

contained in fuel rods located in the reactor core. After

about three years of use, these fuel rods become “spent”

as accumulated radioactive fission products reduce their

ability to sustain nuclear reactions. The rods must then be

replaced to enable the reactor to operate efficiently.’

After the spent fuel rods are removed from the reactor,

they are temporarily stored in water-filled basins (“spent

fuel pools”) adjacent to the reactor.’ The eventual disposi-

tion of spent fuel will be either permanent disposal or

For recent discussions of spent fuel storage and disposal, see

Township of Lower Alloways Creek v. Public Service Electric & Gas

Co., 687 F. 2d 732, 735-36 (3d Cir. 1982); Potomac Alliance v. NRC,

682 F. 2d 1030, 1032-34 (D.C. Cir. 1982) (Bazelon, J., concurring).

Currently, utilities are storing more than 27,000 spent fuel

assemblies in their spent fuel pools. DOE, Spent Fuel Storage

Requirements, DOE/RL-82-1, Table 10, at 23 (June 1982).

4

reprocessing.’ However, commercial reprocessing is not

now available and is unlikely to be available in the near

future.‘ Nor is there today a permanent repository to

which spent fuel can be sent, although the United States

Department of Energy (“DOE”) is carrying out a very

substantial program to develop a permanent repository

for spent fuel and reprocessing wastes.’

In the current absence of commercial reprocessing or a

permanent storage repository, utilities must continue to

When spent fuel is reprocessed, the reusable uraniura and pluto-

nium remaining in the spent fuel are separated from the radioactive

wastes. This uranium and plutonium may then be “recycled” into new

reactor fuel assemblies. See Westinghouse Electric Corp. v. NRC,

598 F. 2d 759, 762-65 (3d Cir. 1979).

Although a commercial reprocessing facility at West Valley, New

York, operated from 1966 to 1971, there are today no commercial

reprocessing facilities in operation in the United States. The mora-

torium on commercial reprocessing imposed in 1977, 13 Weekly

Comp. Pres. Doc. 506 (Apr. 7, 1977), nas now been lifted. 17 Weekly

Comp. Pres. Doc. 1101 (Oct. 8, 1981). However, it is unlikely that

commercial reprocessing will be available for at least a decade.

‘Prehearing Statement of DOE (Dec. 21, 1981), in Nuclear

Regulatory Commission Docket No. PR-50, 51 (44 Fed. Reg. 61,372)

Proposed Rulemaking on the Storage and Disposal of Nuclear

Waste. DOE is spending hundreds of millions of dollars each year on

this program. See H. Rep. No. 345, 97th Cong., Ist Sess. 26, 32 (Nov.

19, 1981) (F 1982 appropriations totalling $217 million); Office of

Management and Budget, Budget of the United States Government,

1983, at 5-43 ($350 million for commercial nuclear waste programs in

FY 1983). DOE is already making preparations to sink exploratory

shafts to allow underground investigation of permanent disposal

sites. DOE, Fiscal Year 1982 Congressional Budget Request, Ener-

gy Supply Research and Development, DOE/CR-0011/3, at 123 (Feb.

1981). See pp. 16-18 infra for a discussion of the pending federal

nuclear waste disposal legislation.

5

store their spent fuel on an interim basis. Typically, stor-

age of this fuel has been in a spent fuel pool at the nuclear

power plant. These pools were originally sized only for

short-term storage, because it was assumed that the

spent fuel would be regularly shipped off-site for

reprocessing. However, currently operating reactors

have dramatically increased the storage capacity of their

pools by changing the racks in which the spent fuel is

stored so that the fuel assemblies can be stored closer

together.’ Notwithstanding these efforts, many reactors

will simply run out of on-site storage space by the mid- to

late-1980’s. By that time, structural limits on plant design

wili effectively prohibit further increases in the pools’

storage capacities. By 1990, some 12-15 operating reac-

tors will have exhausted their storage capacities.’ At that

point, the utilities will have to find somewhere else to

store their spent fuel or shut down their reactors.

The replacement power and other costs of shutting

down a nuclear power plant are astronomical, and utilities

have a very limited range of options for storing the addi-

tional spent fuel that their reactors will discharge. Many

studies have confirmed that AF R's will be needed for this

purpose by the mid- to late-1980’s." There exist today

This method for increasing storage capacity is described in Min-

nesota v. NRC, 602 F.2d 412, 413-14 (D.C. Cir. 1979), and in

Township of Lower Alloways Creek, supra n. I, at 736-37.

NRC, Quarterly Status Report on the Away-From-Reactor

(AFR) Spent Fuel Storage Situation 8 (Aug. 2, 1982).

See, e.g., NRC, Final Generic Environmental Impact Statement

on Handling and Storage of Light Water Power Reactor Fuel,

NUREG-0575, ES11-12 (Aug. 1979); DOE, Spent Fuel Storage

Requirements, DOE/SR-0007 (Mar. 1981); NRC, Quarterly Status

Report on the Away-From-Reactor (AFR) Spent Fuel Storage

Situation (Aug. 2, 1982).

6

three AFR’s in the United States. As the court of appeals

noted, the General Electric spent fuel facility at Morris,

Illinois is the only one which is presently accepting com-

mercial spent fuel for storage. Appendix to Petition For

Certiorari (Pet. App.“) at 2a. The other AFR’s are at

West Valley, New York, and at Barnwell, South Caroli-

na. The West Valley AFR is now owned by the State of

New York, and it is no longer accepting additional spent

fuel, although some spent fuel is currently being stored

there. The Barnwell facility is not licensed by the NRC

and has never operated.

The Spent Fuel Act is a direct attack on the Morris

facility and would prohibit its use as an important element

of the nation’s radioactive waste management efforts.

The Act also would have set an unfortunate precedent

that could have interfered with the development of

permanent geologic repositories for spent fuel and high-

level radioactive waste. There will be only a few perma-

nent repositories, and the radioactive material will have

to be shipped from one state to another. If the Spent Fuel

Act is valid, any state could bar radioactive shipments

from crossing its borders and could block the siting of a

repository within its territory. Any such result would be

a serious obstruction of the nation’s nuclear waste dis-

posal program.

SUMMARY OF ARGUMENT

The decision of the court below is a routine application

of the supremacy and commerce clauses to a state statute

that is plainly unconstitutional. The Illinois Spent Fuel

Act is clearly preempted by the Atomic Energy Act, 42

U.S.C. § 2011 et seq., and it is also an impermissible

obstruction of interstate commerce. The Seventh Cir-

cuit’s holding to that effect is consistent with pertinent

7

decisions of this Court and other courts of appeals. The

correct application of well-established constitutional

principles by a lower court does not call for Supreme

Court review.

The State’s petition should also be denied because the

bulk of the issues and arguments it raises were never

urged in the court of appeals and never decided by that

court. In particular, the State did not rely upon the tenth

amendment or section 274(k) of the Atomic Energy Act,

42 U.S.C. § 2021(k), in the court below. In addition, the

State’s present characterization of the Spent Fuel Act as

an economic measure designed to protect the State

Treasury is new in this Court and totally inconsistent

with the State’s argument below that the Act was de-

signed to protect public health by eliminating a source of

radioactive air pollution. The Supreme Court should not

consider issues that have not been argued or decided in

the court below.

Finally, it would be inefficient and wasteful of scarce

judicial resources to consider this case, because of the

comprehensive nuclear waste disposal legislation that is

currently pending before Congress. The legislation would

substantially alter the statutory context in which this

case arose. It would also eliminate the basis for the com-

plaints in the State’s petition about the alleged lack of a

national waste disposal program. Supreme Court review

is inappropriate when the factual and legal bases of the

case are likely to be changed through intervening con-

gressional action.

ARGUMENT

I. The Spent Fuel Act Is Preempted By The Atomic Energy

Act

The district court held the Spent Fuel Act preempted

by the Atomic Energy Act on the basis of an established

8

line of cases beginning with Northern States Power Co. v.

Minnesota, 447 F. 2d 1143 (8th Cir. 1971), aff'd mem., 405

U.S. 1035 (1972).* In the court of appeals, the State ac-

knowledged “the general rule of federal preemption set

forth in Northern States Power Co. v. Minnesota

State ct. app. brief at 61. The State’s only argument to

avoid preemption was that the Spent Fuel Act is a valid

radioactive pollution control measure authorized by the

Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91

Stat. 685. Jd. at 56-62. In this Court, the State has aban-

doned its Clean Air Act argument and now contends that

preemption is avoided through section 274(k) of the Ato-

mic Energy Act, 42 U.S.C. § 2021(k). Pet. at 6-13. This

issue was not raised, argued or decided in the court of

appeals, and therefore it should not be considered by this

Court. G. D. Searle & Co. v. Cohn, 102 S. Ct. 1137, 1143

n.7 (1982); United States v. Ortiz, 422 U.S. 891, 898

(1975). Even if the State’s argument were to be con-

sidered on the merits, it is insufficient to warrant Su-

preme Court review.

Section 274 of the Atomic Energy Act authorizes the

NRC to turn over to the states limited regulatory author-

* District Court’s Memorandum Opinion and Order dated Oct. 12,

1981, at 5-6. Numerous cases have held that the Atomic Energy Act

preempts state regulation of the radiological hazards of nuclear ener-

gy. See, e. g., Train v. Colorado Public Interest Research Group,

Inc., 426 U.S. 1, 15-17 (1976); Washington State Building & Con-

struction Trades Council v. Spellman, 684 F. 2d 627, 630 (9th Cir.

1982); Illinois v. Kerr-McGee Chemical Corp., 677 F. 2d 571, 579-81

(7th Cir. 1982), petition for cert. filed, 51 U. S. L. W. 3173 (U.S. Sept.

2, 1982)(No. 82-386); Silkwood v. Kerr-McGee Corp., 667 F. 2d 908,

922-23 (10th Cir. 1981), appeal filed, 51 U.S.L.W. 3025(U.S. May 20,

1982)(No. 81-2159); United States v. City of New York, 463 F. Supp.

604 (S.D.N.Y. 1978).

ity over byproduct material, source material and special

nuclear material in quantities not sufficient to form a

critical mass. The NRC may cede authority under this

provision on a state-by-state basis pursuant to an agree-

ment with the governor of the state. Illinois has never

entered into such an agreement with the NRC, and sec-

tion 274 therefore has no application here. See Illinois v.

Kerr-McGee Chemical Corp., supra n.9, at 580. Even if

there were such an agreement between Illinois and the

NRC, it still would not permit state regulation of spent

nuclear fuel. Spent fuel contains sufficient quantities of

special nuclear material (enriched uranium and pluto-

nium) to form a critical mass” and is thus specifically

excluded from the scope of section 27

In addition, section 274(c)(4) requires the NRC to re-

tain authority and responsibility for regulation of the

disposal of such special nuclear material as the NRC finds

sufficiently hazardous to require an NRC license for dis-

posal. The NRC has done so with respect to spent fuel and

has promulgated comprehensive regulations governing

the disposal of spent fuel. See 10 C. F. R. Part 60." See also

10 C. F. R. §§ 20.301-.306

Notwithstanding the general inapplicability of section

274, the State insists that preemption is avoided by sub-

0 See Township of Lower Alloways Creek, supra n. I, at 737; 10

C.F.R. § 72.73 (design criteria to prevent criticality in spent fuel

storage systems).

In the Energy Reorganization Act of 1974, Pub. L. No. 93-438, 88

Stat. 1233, Congress specifically charged the NRC with the responsi-

bility of licensing and regulating permanent disposal repositories. 42

U.S.C. § 5842(3). In 1977 Congress gave DOE ultimate responsibil-

ity for establishing and operating disposal facilities, subject to the

NRC’s licensing and regulatory authority. 42 U.S.C. § 7133(a)(8).

10

section 274(k), which provides that “(nJothing in this sec-

tion shall be construed to affect the authority of any State

or local agency to regulate activities for purposes other

than protection against radiation hazards.” The State

attempts to bring itself within this provision by arguing

that the Spent Fuel Act was not intended to protect the

public from radiation hazards, but rather is an economic

measure designed to protect the State’s fiscal resources.

Pet. at 7-13. The State’s theory is that General Electric

will “abandon” the Morris facility when it is filled, and the

State will have to take over and manage the facility,

which is likely to “bankrupt” the State’s treasury." Id. at

7-8. Here too, the State is shifting its position. In the

court below, the State did not argue that the Spent Fuel

Act is an economic or fiscal measure. Rather, the State

represented that the Act is “a state regulation of radioac-

tive air pollution” designed to protect “the health and

safety of the people of Illinois“ from “cancer, birth de-

fects, or other forms of radiation induced disease, injury

or death.” State ct. app. brief at 51-52, 57." This radiolo-

This entirely speculative argument is inconsistent with the

NRC’s regulations requiring licensees to make elaborate provisions

for decommissioning AF R’s. 10 C. F. R. §§ 72.18, 72.31(a)(10), 72.38,

72.76.

The State chastises the court of appeals for “ignoring” legislative

history which is claimed to reflect the economic nature of the Spent

Fuel Act. Pet. at 10. Yet the State cites no legislative history in its

petition, and the history it cited in the court of appeals directly

contradicts its assertion here. In that court, the State characterized

the legislative history as showing that It he General Assembly was

also concerned that the very movement of waste into Illinois would

endanger health.” State ct. app. reply brief at 25. In support of this

conclusion, the State relied upon remarks by Senators Joyce and

DeMuzio during the debate leading to an override of Governor

11

gical focus of the Act brings it squarely within the area

reempted by the Atomic Energy Act, and section

4(k), by its very terms, has no application. The State

should not be heard to argue here for the first time that

the Act is an economic measure.

The State’s dramatic change in position is a transparent

attempt to make this case look like Pacific Legal Founda-

tion v. State Energy Resources Conservation & Develop-

ment Commission, 659 F.2d 903 (9th Cir. 1981), cert.

granted, 102 S. Ct. 2956 (1982)(No. 81-1945). In that case,

the Ninth Circuit sustained a California moratorium on

new nuclear plants on the ground that it was really a

“financial” measure rather than regulation of radiation

safety. Thus the State believes that it has found a conflict

in the circuits warranting Supreme Court review. Pet. at

11. The Public Utilities believe that Pacific Legal

Foundation was wrongly decided and should be re-

versed. That does not mean, however, that there is a

conflict in the circuits or that this case should be re-

viewed. The Ninth Circuit’s most recent decision in this

area is Washington State Building & Construction

Trades Council v. Spellman, 684 F .2d 627 (9th Cir. 1982),

which is on all fours with the present case. There, the

State of Washington passed an initiative prohibiting stor-

age within Washington of low-level nuclear waste gener-

ated outside the state. The court held the initiative

preempted by the Atomic Energy Act, notwithstanding

Thompson’s veto of the Spent Fuel Act. Both remarks demonstrate a

concern for radiological safety, not economics. For example, Senator

DeMuzio urged an override because he did not think “the citizens of

this State [should] be subjected to the risk of radiation that’s been

generated in other states. . . .” Transcript of Senate debate, Dec. 3,

1980, at 50.

12

section 274 of the Act. 684 F. 2d at 630. The present case is

wholly consistent with Washington State and with the

vast bulk of the other cases in this area of preemption

jurisprudence. Pacific Legal Foundation is the only

aberration; only Pacific Legal Foundation need be re-

viewed and reversed by this Court.

Finally, even if the Spent Fuel Act were ostensibly a

fiscal measure and even if section 274(k) had been argued

below, preemption still would be the inevitable result.

Section 274(k) was never intended to permit wholesale

state prohibitions on the use of federally licensed nuclear

facilities. It was designed simply to leave room for state

laws “dealing with matters on the fringe of the preempted

area in the light of all the provisions and purposes of the

Atomic Energy Act... .” Federal-State Relationships

in the Atomic Energy Field: Hearings Before the Joint

Committee on Atomic Energy, Soth Cong., Ist Sess. 500

(1959). It can hardly be regarded as on the “fringe” of the

preempted area to prohibit storing out-of-state spent

nuclear fuel at an AFR licensed by the NRC for that

purpose. In fact, the NRC has promulgated comprehen-

sive regulations covering the design, siting, licensing and

operation of spent fuel AFR’s. 10 C.F.R. Part 72. The

regulations specifically preclude state regulation of

AFR’s, even in section 274 agreement states. 10 C. F. R.

$§ 72.8, 150.15(a)(7). The pervasive federal regulation of

spent fuel and AFR’s preempts state regulation in this

area, and it clearly precludes the State’s attempt to pro-

hibit entirely the storage of all out-of-state spent fuel at

the Morris AFR.

The Spent Fuel Act strikes at the very heart of the

federal regulatory program, and it directly conflicts with

the congressional determination to promote the develop-

ment and use of atomic energy for peaceful purposes. See

42 U.S.C. §§ 2011, 2012(a), 2013(a), 2013(d). If the Spent

13

Fuel Act is valid, then any state could interfere with any

aspect of the federal atomic energy program—even to the

point of prohibiting new reactors and shutting down

operating reactors—by the simple expedient of labeling

its laws “economic.” This result is hardly authorized by

section 274(k).

il. The Atomic Energy Act Does Not Violate The Tenth

Amendment

The State contends that the Atomic Energy Act

violates the tenth amendment insofar as the Act prevents

Illinois from excluding out-of-state spent fuel from the

Morris facility. Pet. at 11-13." This is so, according to the

State, because the failure to enact a national waste dis-

posal program makes Illinois the “dumping ground” for

the nation’s nuclear wastes and thereby deprives the

State of “the right to protect its treasury” and holds the

State’s taxpayers “at ransom.” Pet. at 11, 12. Once again,

this is an argument that was not raised or decided in the

court below and therefore should not be considered here.

In any event, the argument is wholly without merit.

The leading case in this area is Hodel v. Virginia Sur-

face Mining & Reclamation Ass’n, 101 S. Ct. 2352 (1981).

There, the Court stated that congressional legislation

cannot be held invalid under the tenth amendment unless

three requirements are satisfied: (1) the federal statute

must regulate “States as States;” (2) it must address

matters and that are indisputably “attributes of state

sovereignty;” and (3) it must directly impair the states’

“ As discussed in the next section of this brief, the commerce

clause independently prohibits the State’s exclusion of out-of-state

spent fuel. It is difficult to see how the tenth amendment can be

offended by a result that is commanded by the commerce clause.

14

ability “to structure integral operations in areas of tradi-

tional functions.” 101 S. Ct. at 2366. None of these

requirements is satisfied here.

First, in the context of this case the Atomic Energy Act

does not regulate “States as States,” but rather the pri-

vate nuclear power industry. Nothing in the tenth

amendment “shields the states from pre-emptive federal

— of private activities affecting interstate com-

101 SC Ct. at 2367 (emphasis in original). Second

— can hardly be argued that the right to exclude out-of.

state spent fuel from a private AFR is an indisputable

attribute of state sovereign’. Third, the Atomic Energy

Act does not impair the State’s ability to operate its

treasury or any other traditional state function. The

State’s imaginative arguments about being held “at ran-

som” do not satisfy the third requirement, since the

determinative factor is “the nature of the federal action,

not the ultimate economic impact on the States.” 101 S.

Ct. at 2368 n.33; accord, FERC v. Mississippi, 102 S. Ct.

2126, 2143 n.33 (1982).

The Atomic Energy Act simply does not intrude upon

the inherent sovereignty of Illinois or impair its function-

ing as a State. The Act therefore does not violate the

tenth amendment.”

Ill. The Spent Fuel Act Violates The Commerce Clause

The court of appeals correctly held that the Spent Fuel

Act violates the commerce clause by overtly discriminat-

We are aware of only one case in which the Atomic Energy Act

was challenged under the tenth amendment, and the challenge there

was summarily rejected. Simmons v. Arkansas Power & Light Co.,

655 F. 2d 131, 135 (8th Cir. 1981).

15

ing against out-of-state spent fuel. The controlling prece-

dent is City of Philadelphia v. New Jersey, 437 U.S. 617

(1978), in which this Court relied upon the commerce

clause to strike down a New Jersey statute barring

importation of solid and liquid waste originating outside

New Jersey. The State attempts to avoid City of Phila-

delphia by arguing that the Spent Fuel Act is a valid

“quarantine” measure designed to prevent commerce in

“noxious articles” that are “inherently dangerous” and

“could easily result in the leakage of lethal and

environmentally destructive radioactive material.” Pet.

at 14, 15.“ This Court rejected the same “quarantine”

argument in City of Philadelphia, holding:

But those quarantine laws banned the importation of

articles such as diseased livestock that required

destruction as soon as possible because their very

movement risked contagion and other evils. Those

laws thus did — po pee oy — — 7

commerce as such, sim raffic in

noxious articles, whatever Nl Torten.

437 U.S. at 628-29 (emphasis added).

The quarantine exception obviously has no application

here. The Spent Fuel Act does not prohibit all traffic in

spent fuel regardless of its origin. Te the contrary, the

Act excludes only out-of-state spent fuel; it has no effect

on spent fuel generated within the State, nor does it

“This characterization of the Spent Fuel Act is, of course,

completely inconsistent with the State’s argument for preemption

purposes that the Act is a purely economic measure not aimed at

regulating radiological hazards. Like Janus, the State has no difficul-

ty looking in opposite directions at the same time. See Vermont

Yankee Nuclear Power Corp. v. Natural Resources Defense Coun-

cil, Inc., 435 U.S. 519, 540 n. 15 (1978).

16

prohibit transportation of spent fuel through Illinois to a

destination in another state. If the Spent Fuel Act were a

true quarantine measure, it would ban all storage, dis-

posal and other traffic in spent fuel regardless of the

source of the spent fuel. The Act does not do so, and it is

therefore clearly unconstitutional.

The decision of the court below is a routine application

of City of Philadelphia and the commerce clause." Su-

preme Court review is hardly warranted. Indeed, the

Spent Fuel Act is precisely the kind of parochial state

protectionism that the commerce clause was intended to

prevent.

IV. Supreme Court Review Is Inappropriate Because Of

Pending Federal Legislation

There is currently pending before Congress compre-

hensive nuclear waste management legislation that

would substantially alter the statutory context in which

this case arose and would eliminate the basis for the

State’s repeated complaints about the alleged absence of

a national waste disposal program. See Pet. at 4, 6, 7, 8,

11, 12, 13. Because of the changing statutory circum-

stances, a Supreme Court decision in this case may have

little lasting significance or broad application. According-

ly, it would be a waste of scarce judicial resources to hear

The Ninth Circuit has recently applied the commerce clause in

the same way to strike down a Washington State initiative barring

importation of out-of-state low-level radioactive waste. Washington

State Building & Construction Trades Council v. Spellman, 684

F. 2d 627, 630-32 (9th Cir. 1982).

17

In the Senate, the National Nuclear Waste Policy Act

of 1982 (S. 1662) was passed by a vote of 69-9 on April 29,

1982. 128 Cong. Rec. S4325-36 (daily ed. April 29, 1982).

The corresponding House bill (H.R. 7187) came to the

House floor on September 30, 1982, where general debate

was completed and all permissible amendments were

offered. 128 Cong. Rec. H8161-99 (daily ed. Sept. 30,

1982). Thereafter, Congress adjourned until the beginn-

ing of its “lame duck” session on November 29, 1982. See

128 Cong. Rec. $13,410 (daily ed. Oct. 1, 1982). It is

expected that the House will take up H.R. 7187 shortly

after it reconvenes. Differences between the House and

Senate bills will have to be resolved, and the legislation

will be sent to the President for signature. The nuclear

waste legislation is a high-priority item for both Congress

and the Administration, and we expect that every effort

will be made to ensure that it becomes law before the end

of the current session of Congress.

Although the House and Senate bills differ somewhat,

the general approach is the same. The legislation declares

that it is the responsibility of the federal government to

provide repositories for the permanent disposal of spent

fuel and other high-level nuclear waste, and to assure that

adequate interim storage capacity will be available until

the permanent repositories can be put in service. To this

The House leadership has made a firm commitment to take up

H.R. 7187 during the first week of the lame duck session. Letter

dated Oct. 13, 1982, from Chairman Udall of the House Committee on

Interior and Insular Affairs to Representative Broyhill of the House

Committee on Energy and Commerce.

See S. 1662, 5 101, 102, 301, reprinted in 128 Cong. Rec. S4325-

27 (daily ed. April 29, 1982); H.R. 7187, § 131, reprinted in 128 Cong.

Rec. H8187 (daily ed. Sept. 30, 1982).

18

end, the legislation directs DOE to carry out a program of

research, development, site selection and construction

with the aim of having permanent repositories in opera-

tion within the next fifteen years.” In addition, provisions

are made to facilitate and encourage on-site interim stor-

age of spent fuel and to auchorize DOE to make available

off-site AFR storage facilities.”

Thus the pending waste management legislation will

dramatically affect the subject matter of the State’s peti-

tion and will eliminate any possible basis for concern

about the supposed lack of a comprehensive national pro-

gram to deal with spent fuel storage and disposal. Under

these circumstances, Supreme Court review of this case

is unwarranted.

” See S. 1662, 66 401-11, reprinted in 128 Cong. Rec. $4329-32

(daily ed. April 29, 1982); H.R. 7187, §§ 211-21, reprinted in 128

Cong. Rec. H8191-94 (daily ed. Sept. 30, 1982).

1-94

™ See S. 1662, $§ 301-14, reprinted in 128 Cong. Rec. 84326-29

+ „ 1968), H.R. 7187, $$ 131-37, reprinted in 128

ed.

Cong. Rec. H8187-90 (daily ed. Sept. 30, 1982).

17

19

CONCLUSION

The Petition For A Writ Of Certiorari should be de-

nied.

Respectfully submitted,

JAMES B. HAMLIN

Counsel of Record

JAY E. SILBERG

SHAW, PITTMAN, Porrs

& TROWBRIDGE,

1800 M Street, N.W.

Washington, D.C. 20036

(202) 822-1000

Attorneys for Amici Curiae

Baltimore Gas & Electric

Company, et al.

November 12, 1982