Petition for Writ of Certiorari — Brown v. Kerr-McGee Chemical Corp.

85-1258

-No. iy Court, U.S.

7 FLLED

In THE SAN Zi 1988

Supreme Court of the Unites Ptates.< *

Octoser TERM, 1985

DONALD E. BROWN; EDITH R. BROWN; EDWIN E.

BROWN; BETTY WOLSFELD; and WEST CHICAGO STATE

BANK, as Trustee u/t/a 213, dated September 16, 1969,

Petitioners,

Wie

KERR-McGEE CHEMICAL CORPORATION,

a Delaware corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Aupo E. Botti

Water P. Maxsym

(Counsel of Reeord)

Drake OakBrook Plaza

9911 York Road, Suite 208

Oak Brook, Illinois 60521

(312) 789-8585

Counsel for Petitioners

Of Counsel:

Samve. J. Berar III

Botti, Marrnaccio, DESALVO

& Pieper, Lrp.

Drake OakBrook Plaza

2911 York Road, Suite 208

Oak Brook, Illinois 60521

(312) 789-8585

Midwest Law Printing Co., Chicago 60611, (812) 321-0220

— i 7 _

a Desa

A

»

Daa

1

QUESTIONS PRESENTED

Whether the Atomic Energy Act, 42 U.S.C. §2011 et

seq. preempts a request for an injunction pursuant to

State law to abate a nuisance posed by nonradiation

- hazards and airborne radiation hazards of material licensed

by the Nuclear Regulatory Commission.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED ................. 1

TABLE OF AUTHORITIES . ....6.ccccuse ili

RAE RINORES EE x sine 5 on cnn nea Ve RE 2

bt fy pS I aearar Prererap Eras ge el: 8%

REASONS FOR GRANTING THE PETITION:

I.

THE COURT OF APPEALS’ DECISION CON-

FLICTS WITH THIS COURT’S HOLDING IN

SILKWOOD v. KERR-McGEE CORP., 464 U.S.

| ren rare rere dy cl 9

Il.

THE COURT OF APPEALS’ DECISION CON-

FLICTS WITH THIS COURT’S HOLDING IN

PACIFIC GAS AND ELECTRIC CO. v. STATE

ENERGY RESOURCE CONSERVATION AND

DEVELOPMENT COMMISSION, 461 U.S. 190

| | Snir anne reer es ar rarer 12

III.

THE COURT OF APPEALS’ DECISION IN-

VOLVES ISSUES OF GREAT PUBLIC IM-

PORTANCE REGARDING CONCURRENT

REGULATION BY FEDERAL AND STATE

GOVERNMENTS OVER THE OPERATION OF

PRIVATE FACILITIES LICENSED BY THE

| See ee UR ERE EEE TUTE ee ty 13

ili

APPENDIX

A— Opinion of the United States Court of Appeals

for the Seventh Circuit ................... A-1

B— Order of the United States Court of Appeals

for the Seventh Circuit Denying Petition for

Rehearing and Modifying Its Opinion ...... B-1

TABLE OF AUTHORITIES

Cases PAGE

Brown v. Kerr-McGee Chemical Corp., 767 F.2d

cc we cee eacace passim

City of Philadelphia v. State of New Jersey, 437

Ne cuban wavasess 13

Cloverleaf Butter Co. v. Patterson, 315 U.S. 148

acca a bacasessscece 11

Davies Warehouse Co. v. Bowles, 321 U.S. 144

a cd i wca uns stninsece 11

Florida Lime & Avocado Growers, Inc. v. Paul,

Er 17

H. P. Welch Co. v. New Hampshire, 306 U.S. 79

ac eakatasecacs 11

Huron Portland Cement v. City of Detroit, 326

SSI a 17

International Union, U.A.W. v. Wisconsin Em-

ployment Relations Board, 336 U.S. 245, reh.

eS 11

—

iv

Nadar v. Allegheny Airiines, 426 U.S. 290 (1976) . 18

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

1143 (&th Cir. 1971), affirmed, 405 U.S. 1035

COED 5c 0b se ee Cerra a ee 15

Pacific Gas and Electric Co. v. State Energy Re-

source Conservation and Development Commis-

sion, 461 U.S. 190 (1983) ........... 12, 13, 15, 16

People of the State of Illinois, v. Kerr-McGee

Chemical Corp., 677 F.2d 571 (7th Cir.), cert.

dented, 459 U.S. 1049 (1982) .............. 14, 15

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

6) Eee Te eee ee rer rey ere ea es 11

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) .

Aha KERNS RAR ERERE CRRCLS RE RACER 9, 10, 16, 17

Village of Wilsonville v. SCA Services, Inc., 86 Ml.

2d 1, 426 N.E.2d 824 (1981) ............... 13

Statutes

Se Sicha SONA 6k Clean we os rereanacases 4,8

CW DKS as an ernie cemesies Ge 3, 6

oe See LE eke oaawee eens ae 3, 6

Oe Rees ME 8 Sak nk cus antec sdeewha cis 3, 15

Se RTA tae ea ase 3, 6

Oe Wes eens OE NS oes cs Ora een 6

In THE

Supreme Court of the Cnited States

Ocroser Term, 1985

DONALD E. BROWN; EDITH R. BROWN; EDWIN E.

BROWN; BETTY WOLSFELD; and WEST CHICAGO STATE

BANK, as Trustee u/t/a 213, dated September 16, 1969,

Petitioners,

¥.

KERR-McGEE CHEMICAL CORPORATION,

a Delaware corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners, Donald E. Brown, Edith R. Brown, Betty

Wolsfeld, and West Chicago State Bank, as Trustee u/t/a

213, dated September 16, 1969, respectfully petition for

a writ of certiorari to review the interlocutory judgment

of the United States Court of Appeals for the Seventh

Circuit entered on July 18, 1985.

EE ee

ailie’

OPINION BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit is officially reported at 767 F.2d 1234

(7th Cir. 1985). It is reproduced in the appendix hereto.

(Appendix A, pp. A-1 to A-25) On October 24, 1985, the

opinion of the United States Court of Appeals for the Sev-

enth Circuit was modified. The order of modification is

reproduced in the appendix hereto (Appendix B, pp. B-1

to B-2).

JURISDICTION

The judgment of the Court of Appeals was entered on

July 18, 1985. A timely petition for rehearing was denied

on October 24, 1985. (Appendix B, pp. B-1 to B-2) The

jurisdiction of the Court is invoked pursuant to 28 U.S.C.

§1254(1).

STATUTES INVOLVED

)

This case involves the interpretation of the Atomic

Energy Act (AEA) 42 U.S.C. §2011, et seq. (1954) as

amended by the Uranium Mill Tailings Radiation Control

Act, P.L. 95-604, 92 Stat. 3022 (1978) (UMTRCA) to deter-

mine whether the AEA preempts petitioners’ prayer for

mandatory injunctive relief.

=

42 U.S.C. §2021(k) provides:

Nothing 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.

42 U.S.C. §2014(e) provides:

The term “byproduct material” means (1) any radio-

active material (except special nuclear material) yielded

in or made radioactive by exposure to the radiation

incident to the process of producing or utilizing special

nuclear material, and (2) the tailings or wastes pro-

duced by the extraction or concentration of uranium

or thorium from any ore processed primarily for its

source material content.

42 U.S.C. §2014(z) provides:

The term “source material’? means (1) uranium,

thorium, or any other material which is determined

by the Commission pursuant to the provisions of sec-

tion 2091 of this title to be source material; or (2)

ores containing one or more of the foregoing materials,

in such concentration as the Commission may by regula-

tion determine from time to time.

42 U.S.C. §2113 provides in pertinent part:

(a) Specific assurances in license for pretermination actions

Any license issued or renewed after the effective

date of this section under section 2092 or section 2111

of this title for any activity which results in the pro-

duction of any byproduct material, as defined in sec-

tion 2014(eX2) of this title, shall contain such terms

and conditions as the Commission determines to be

necessary to assure that, prior to termination of such

license—

(1) the licensee will comply with decontamina-

tion, decommissioning, and reclamation standards

prescribed by the Commission for sites (A) at which

ores were processed primarily for their source

material content and ) at which such byproduct

material is deposited, .. .

a

STATEMENT OF THE CASE

This is an appeal from the interlocutory judgment of

the Seventh Circuit Court of Appeals affirming the inter-

locutory order of the United States District Court for the

Northern District of Illinois, Eastern Division, granting

Kerr-McGee Chemical Corporation’s motion to dismiss

Count I of Petitioners’ complaint.! In Count I of their

complaint petitioners sought mandatory injunctive relief

for the removal of toxic waste which had accumulated on

Respondent’s property.? Petitioners originally filed their

complaint in the Circuit Court of DuPage County, Illinois.

Petitioners’ state suit was removed from the Circuit Court

to the District Court upon removal petition of Kerr-McGee

on grounds of diversity pursuant to 28 U.S.C. §§1446,

1332 and 1441.

Petitioners, Donald Brown, Edith R. Brown? and Betty

Wolsfeld, are the equitable and beneficial owners of two

parcels of residential property located in West Chicago,

Illinois whose back yards abut a forty-three acre facility

owned and operation by Respondent, Kerr-McGee. Donald

Brown presently resides in one of the residential homes.

This case involves a forty-three acre site (“site’’) owned

by Respondent Kerr-McGee Chemical Corporation (“Kerr-

' The Court of Appeals treated Kerr-McGee’s motion to dismiss

as one for summary judgment because Respondent submitted

materials outside the pleadings in support of its motion to dismiss.

Brown v. Kerr-McGee Chemical Corp., 767 F.2d 1234, 1237 n.2

(7th Cir. 1985).

* The Court of Appeals exercised jurisdiction over the District

Court's interlocutory order pursuant to 28 U.S.C. §1292(a\1).

3 Mrs. Brown died during the pendency of this proceeding.

—)—

McGee’’) in West Chicago, Illinois, where from 1931 to

1973 Kerr-McGee and its predecessors milled and proe-

essed ores bearing thorium, a naturally-occurring radioac-

tive element. During the time the plant operated, liquid

waste was disposed of by discharge into onsite pits. This

practice resulted in extensive contamination of area

groundwater with a variety of the industrial chemicals

used in the ore milling process. Solid wastes, i.e., ore

sediments—also called “mill tailings” —were piled onsite,

where approximately 1.2 million cubic feet remain await-

ing disposal. In addition to these tailings, about 3 million

cubic feet of plant building and equipment rubble remain

onsite also waiting disposal.

Both the mill tailings and the rubble are radioactive,

since they are contaminated with thorium and its radioac-

tive daughter products; these materials therefore pose

radiation hazards to people exposed to them. The mill tail-

ings also pose environmental hazards unrelated to the

radiation they emit because they are contaminated with

residuals of the industrial chemicals used in the milling

process. As rain and melting snow mix with the tailings,

these chemicals leach out into groundwater and remain

a continuing source of chemical groundwater pollution. In

sum, the mill tailings onsite are contaminated with both

radioactive and nonradioactive contaminants, and pose

both radiation hazards and nonradiation hazards. All par-

ties agree that the radioactive and nonradioactive con-

taminants are inextricably mixed.

Since 1956 the owner of the site has been licensed

by the U.S. Nuclear Regulatory Commission (“NRC”)

and its predecessor agency, the U.S. Atomic Energy

Commission, pursuant to the Atomic Energy Act of 1954,

42 U.S.C. §2011 ff (“AEA”). That is because thorium,

denominated “source material” by the AEA (42 U.S.C.

Ps ee rh

— Ce i Oe

~ i

$2014[z]), is one of several kinds of radioactive material

licensed and regulated by NRC under the statute.4 In

1978 the AEA was amended by Title II of the Uranium

Mill Tailings Radiation Control Act. P.L. 95-604, 92 Stat.

3022 (‘UMTRCA”’); UMTRCA specifically made uranium

and thorium mill tailings, denominated “byproduct ma-

terial” (42 U.S.C. §2014(eX2)), also subject to NRC licens-

ing and regulation.

UMTRCA requires that before a private mill owner’s

license terminates, the milling site must be decommissioned

and the wastes disposed. 42 U.S.C. §2113. Accordingly,

in 1979 and in subsequent years Kerr-McGee has made

several applications to the NRC to clean up the site, all

of them proposing to permanently bury the wastes, both

the rubble and the tailings, on the site.

In May 1983 the NRC issued an environmental impact

statement on Kerr-McGee’s onsite burial proposal (called

the Final Environmental Statement, or “FES”). The FES,

which basically endorsed onsite disposal, was rejected by

the NRC hearing board on the ground that it violated

the requirements of the Naticnal Environmental Policy

Act, 42 U.S.C. §4321 ff, 20 NRC 1296 and 21 NRC 244.

Recent submissions by the NRC Staff indicate that a new

draft environmental statement is expected to be completed

no earlier than June 1986 and a new final environmental

statemen* is to be completed no earlier than February

1987.

4 The AEA does not regulate all types of radioactive materials—

only those specified in the statute. All others are regulated ex-

clusively by the States. A question exists as to whether the AEA

is applicable to the site since the site originated its operation in

1933, twenty-one years prior to the enactment of the act.

La A

—(—

Petitioners filed a complaint against Respondent alleg-

ing that the Kerr-McGee site has been and is a nuisance.

Petitioners’ cause of action is based solely on State stat-

utory and common law tort theories.

The allegations in Petitioners’ complaint can be sum-

marized as follows:5

a. The buildings on the site are in such a state of

disrepair as to constitute a nuisance,

b. Hazardous wastes dumped on the site include tox-

ic chemicals such as, barium sulfate, sodium phos-

phate, ammonia, ethylenediominatelnaacetic acid,

sulfuric acid, kerosene, hydrocnloric acid and

caustic soda,

c. Liquid wastes have permeated the soil, and have

polluted the water table, Petitioners’ well and

nearby streams,

d. Pollutant runoff from Respondent’s site has run

on to and polluted Petitioners’ property,

e. The site is rat infested and that the rats have in-

vaded Petitioners’ property,

f. That the current condition of the site violates

numerous municipal and state ordinances and stat-

utes, and regulations of the Illinois Department

of Public Health,

g. These conditions have interferred with Peti-

tioners’ right to quiet use and enjoyment of their

property and pose a health hazard to them.

Kerr-McGee filed a motion to dismiss a portion of the

relief sought by Petitioners in Count I of their complaint

alleging that federal law, the AEA, preempts any attempt

5 Paragraphs a-g are a condensed description of the various al-

legations contained in Petitioners’ complaint and are not verbatim

quotes.

-

to obtain judicial injunctive relief predicated upon State

and commen law tort theories. The district court held that

Petitioners’ request for injunctive relief was preempted

because the NRC has exclusive authority over the dis-

posal of radioactive materials and that an injunction would

interfere with the NRC’s authority.

The Seventh Circuit in a divided opinion affirmed the

decision of the district court. The NRC has been aware

of the existence of this lawsuit since its inception. To date

the NRC has never sought to intervene or indicate on

the record that it has an interest in these proceedings

which could be adversely affected.

One of the issues on appeal, which is not an issue before

this Court, was whether the court of appeals had jurisdic-

tion to hear the appeal. The court of appeals determined

that it had jurisdiction pursuant to 28 U.S.C. §1292(a\1)

in part because there was nothing to:

preclude a finding that the district court order will

result in serious, perhaps irreparable, consequences

that can be effectively challenged only by immediate

appeal.

Brown v. Kerr-McGee Chemical Corp., 767 F.2d 1234,

1240 (7th Cir. 1985).

The irreparable consequences which justified the Sev-

enth Circuit’s exercise of appellate jurisdiction over an

interlocutory order still exist and should be considered

by this court in determining whether it will grant this

petition to review this interlocutory issue.

a

REASONS FOR GRANTING THE WRIT

I.

THE COURT OF APPEALS’ DECISION CONFLICTS

WITH THIS COURT’S HOLDING IN SILKWOOD v. KERR-

McGEE €ORP., 464 U.S. 238 (1984).

Recently, the United States Supreme Court rendered

its decision in Silkwood v. Kerr-McGee, 464 U.S. 238, 104

S.Ct. 615 (1984). There, the administrator of the estate

of a deceased laboratory analyst at a federally licensed

Kerr-McGee facility brought an action under State law to

recover for injuries to the decedent’s person and prop-

erty. Unlike the matter at bar, the cause of damage was

directly ascribed to a radiation hazard, plutonium con-

tamination. Here, no reference to radiological materials

is made in Petitioners’ Complaint. The Si/kwood court

reversed the denial by the Tenth Circuit of an award of

punitive damages, holding that they were not preempted

under federal law. In rejecting Kerr-McGee’s preemption

argument, which is similar to Kerr-McGee’s argument in

the instant case, the high court conducted an in-depth ex-

amination of the legislative history of the Atomic Energy

Act with respect to the subject of the availability of

judicial remedies. The high court’s analysis is applicable

to this controversy with respect to the availability of in-

junctive relief:

Congress assumed that state law remedies in what-

ever form they might take were available to those in-

jured by nuclear incident. This was so even though

it was well aware of the NRC’s exclusive authority

to regulate safety matters.

Silkwood v. Kerr-McGee, 464 U.S. 238, 104 S.Ct. 615, 625

(1984 emphasis supplied).

a

Congress therefore disclaimed any interest in promot-

ing the development and utilization of atomic energy

by means that fail to provide adequate remedies for

those who are injured by exposure to hazardous nu-

clear materials.

Silkwood v. Kerr-McGee, 464 U.S. 238, 104 S.Ct. 615, 626

(1984). This Court’s decision in Silkwood, supra, did not

limit the type of remedies available to persons who claim

they were injured by exposure to hazardous nuclear ma-

terial. While the specific relief sought in Silkwood was

punitive damages, the quoted language from the opinion

indicates that no limits were to be imposed on the forms

of relief available to claimants.

The Seventh Circuit’s ruling which limits the remedies

available to Petitioner is at odds with the spirit of this

Court’s decision in Silkwood, which declared that Con-

gress intended that adequate remedies be available to

those injured by exposure to hazardous nuclear material

and that no limits existed on the form of available rem-

edies. The basis of equitable relief is the lack of an ade-

quate remedy at law. Judge Cudahy in his dissent indi-

cated that the majority found “preemption much to easily”

and that there was an inadequate basis in the record to

support the majority’s decision. Judge Cudahy correctly

concluded that the majority’s decision contradicted the

clear intent of Congress and this Court’s decision in Silk-

wood which indicated that states retain jurisdiction over

nonradiation hazards. Brown v. Kerr-McGee Chemical

Corp., 767 F.2d 1234, 1243-1247 (7th Cir. 1985).

Judge Cudahy’s comments in his dissent are of special

significance in light of the long precedent of this Court

which encourages caution in finding preemption and favors

deference to the traditional powers of the State. In deter-

mining whether State power has been preempted, it should

atten

be recalled that long before Silkwood, the Supreme Court

warned that any invasion of traditional local domains in-

volves a delicate exercise of legislative policy. In ascertain-

ing the scope of congressional legislative intent, due and

proper regard must be accorded local interests before a

preemptive effect can be recognized. See Davies Ware-

house Co. v. Bowles, 321 U.S. 144 (1944). The intent of

Congress to displace State power must be either clearly

manifested and definitely expressed, or clearly implied.

International Union, U.A.W. v. Wisconsin Employment

Relations Board, 336 U.S. 245, reh. den., 336 U.S. 970

(1949); H. P. Welch Co. v. New Hampshire, 306 U.S. 79

(1939). The court hearing the matter must start with the

assumption that historic policy or judicial powers are not

to be superseded. See Rice v. Santa Fe Elevator Corp.,

331 U.S. 218 (1941). Where, as here, State power is sought

to be prohibited on a claim of inferred preemption at-

tributable to the scope and purpose of federal legislation

it must be clear that the federal provisions are inconsis-

tent with those of the State before Federal courts are

justified in thwarting State power. See Cloverieaf Butter

Co. v. Patterson, 315 U.S. 148 (1942). In view of the

difficulties encountered by the Seventh Circuit in reaching

its decision and the clear impact of its ruling on an area

of great national concern, review by this Court is necessary.

= rrr

ee

ai.

THE COURT OF APPEALS’ DECISION CONFLICTS

WITH THIS COURT’S HOLDING IN PACIFIC GAS AND

ELECTRIC CO. v. STATE ENERGY RESOURCE CONSER-

‘ATION AND DEVELOPMENT COMMISSION, 461 U.S. 190

(1983).

The majority’s decision is also contrary to Pacific Gas

and Electric Co. v. State Energy Resource Conservation

and Development Commission, 461 U.S. 190 (1983). There

the State of California had prohibited construction of

nuclear power plants until the NRC approved a inethod

for disposing of spent nuclear fuel. The statute was based

on the asserted economic risks of nuclear generation

unless the disposa! problem was solved. Ruling that the

NRC’s authority is limited to the radiological safety

aspects of nuclear power (id. at 205) and that States re-

tain their authority over its nonradiological aspects (id.

at 212), the Court upheld the California statute. The Court

rejected the plaintiff's and the Government’s (as amicus

curiae) argument that the NRC should have the final

choice about if and when nuclear plants are built, and

acknowledged that States have the power, arising from

their jurisdiction over nonradiation hazards, to veto a

plant—i.e., to render ineffectual permission granted by

the NRC for a company to construct a nuclear power

plant. The Petitioners herein seek to do precisely the

same thing—to veto, on permissible state law grounds,

Kerr-McGee’s choice of a disposal location and render in-

effectual the NRC’s permission (if it is granted) to use

that location. Under Pacific Gas & Electric Co., such a

veto is a legitimate exercise of state authority. Thus, the

Seventh Circuit’s preclusion of State authorized judicial

relief warrants scrutiny by the Court.

—13—-

fli.

THE COURT OF APPEALS’ DECISION INVOLVES

ISSUES OF GREAT PUBLIC IMPORTANCE REGARDING

CONCURRENT REGULATION BY FEDERAL AND STATE

GOVERNMENTS OVER THE OPERATION OF PRIVATE

FACILITIES LICENSED BY THE NRC.

Respondent currently operates the site under license

issued by the NRC for the decommissioning and disposal

of radioactive materials presently located at the site. The

mill tailings and other toxic wastes on the site are con-

taminated with both radioactive and nonradioactive con-

taminants, and pose both radiation and nonradiation hazards.

The radioactive and nonradioactive contaminants are in-

extricably intermixed. The Seventh Circuit correctly noted

that Petitioners seek to abate the nonradiation rather than

the radiation hazards posed by Respondent’s site. Brown

v. Kerr-McGee Chemical Corp., 767 F.2d 1234, 1241 (7th

Cir. 1985). Congress did not intend federal law to preempt

State regulation of nonradicactive waste disposal. City of

Philadelphia v. State of New Jersey, 437 U.S. 617, 620-621

n.4, 98 S.Ct. 2531, 2533-2534 n.4 (1978). No question exists

as to the right of citizens under Illinois law to the equi-

table relief sought in this case compelling exhumation of

hazardous waste. Village of Wilsonville v. SCA Services,

Inc., 86 Ill.2d 1, 426 N.E.2d 824 (1981). Thus the Seventh

Circuit correctly concluded that a private plaintiff may

rely on state law to obtain injunctive relief from non-

radiation hazards. Brown v. Kerr-McGee Chemical Corp.,

767 F.2d 1234, 1241 (7th Cir. 1985).6 The court rational-

6 Congress in 1977 reinstated state authority over the airborne

radiation hazards of NRC-licensed materials. Pacific Gas & Elec.,

supra, 461 U.S. at 212, n. 25. This was accomplished by an amend-

ment, P.L. 95-95, to the Clean Air Act, 42 U.S.C. §87401/f, Given

that the primary radiation hazard of mill tailings is radon, an air-

(Footnote continued on following page)

Pe ye os

a

ized, however, that because the nonradioactive and radio-

active wastes were “intermixed”, an injunction ordering

removal of the nonradioactive waste would necessarily in-

clude the radioactive waste. Such a result the court con-

cluded would stand as an obstacle to the objectives of

federal regulation of radiation hazards. Brown v. Kerr-

McGee Chemical Corp., 767 F.2d 1234, 1242 (7th Cir.

1985).

This decision is also inconsistent with the Seventh

Circuit’s previous ruling in People of the State of Illi-

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

Cir.), cert. denied, 459 U.S. 1049 (1982). In that case the

court concluded that the City of West Chicago, a Plain-

tiff thereto, could seek abatement of nonradiation toxic

chemicals, a public nuisance, at the site if no actual con-

flict was established between the NRC’s authority and

the relief sought by the City. Petitioners herein seek

removal of the same onsite chemicals which were the ob-

ject of the City of West Chicago’s complaint.’ In its

8 continued

borne radioactive decay product of thorium and uranium, state

regulatory authority now exists not only over the non-radiation

hazards of Kerr-McGee’s site but over its chief radiation hazard

as well.

7 The inconsistent rulings have posed dramatic consequences for

the State of Illinois. The State of Illinois is presently litigating

an action against Kerr-McGee ir the Circuit Court of DuPage

County, People of the State of Illinois v. Kerr-McGee Chemical

Corp., in the Circuit Court for the Eighteenth Judicial Circuit,

DuPage County, Illinois, No. 80 CH 298. In that case the People

in part seek the abatement of the same nuisance at the Kerr-

McGee site that is the subject of the instant suit. The case is

scheduled for trial in early March, 1986. After the Seventh Cir-

cuit’s decision in Brown v. Kerr-McGee Chemical Corp., 767 F.2d

1234 (7th Cir. 1985) Kerr-McGee filed suit in federal district court

to enjoin the State Court proceeding. Kerr-McGee Chemical Corp.

v. State of Illinois, United States District Court for the North-

(Footnote continued on following page)

—)5—

previous ruling the court correctly indicated that the

City’s complaint was directed at nonradiation hazards and

that regulation of nonradiation hazards by the states and

their political subdivisions has not been preempted. Peo-

ple of the State of Illinois v. Kerr-McGee Chemical Corp.,

677 F.2d 571, 582 (7th Cir. 1982), accord, Pacific Gas and

Electric Co. v. State Energy Resources Conservation and

Development Commission, 461 U.S. 190 (1983).

This ruling is consistent with § 2021(k) of the AEA

which provides in part:

[njothing in this section shall be construed to affect

the authority of any State or local agency to regu-

late activities for the purposes other than protection

against radiation hazards.

42 U.S.C. § 2021(k).

This Court has consistently held that Congress intended

to preempt only the regulation of radiological hazards.

Pacific Gas and Electric Co. v. Energy Resources Con-

servation and Development Commission, 461 U.S. 190

(1983), Northern States Power Co. v. Minnesota, 447 F.2d

1143 (8th Cir. 1971), affirmed, 405 U.S. 1035 (1972).

The only limit imposed by the court in the State of

Illinois case was that no actual conflict could exist be-

tween the NRC’s authority and the City’s suit. People

of the State of Illinois v. Kerr-McGee Chemical Corp., 677

F.2d 571, 582 (7th Cir. 1982).

7 continued

ern District of Illinois, Eastern Division, No. 85 C 10068. The

judge sitting in state court had refused to follow the Seventh Cir-

cuit’s decision and Kerr-McGee’s appeal to the Appellate Court

was dismissed.

A decision has not yet been rendered in that case. This conflict

between State and Federal governments, highlights the public im-

portance of the instant case and raises supremacy clause issues.

The restriction imposed by the court in the State of Illi-

nois case is consistent with this Court’s proclamation in

Silkwood that:

But insofar as damages for radiation injuries are con-

cerned, preemption should not be judged on the basis

that the federal government has so completely oc-

cupied the field of safety that state remedies are fore-

closed but on whether there is an irreconcilable con-

flict between the federal and state standards or

whether the imposition of a state standard in a dam-

ages action would frustrate the objectives of the fed-

eral law.

Silkwood v. Kerr-McGee Corp., _. U.S. ____ , 104 S.Ct.

615, 626 (1984). The Seventh Circuit’s opinion does not

contain any basis to satisfy the criterion for preemption

enunciated in Silkwood.

The error in the court’s reasoning in the instant case

is that it assumed that an actual conflict exists between

the relief sought by Petitioners and the authority of the

NRC. In fact no conflict presently exists and the court

merely speculated that one may arise. The purpose of the

common law, Illinois nuisance law, pollution standards and

local building codes relied upon by Petitioners in their

complaint is not to regulate the radiological hazards or

nuclear safety aspects of the Kerr-McGee site. The fact

that enforcement of these state and local iaws may im-

pact on how Kerr-McGee operates its business at the site

is not conclusive that they are preempted. Brown v. Kerr-

McGee Chemical Corp., 767 F.2d 1234, 1244 (7th Cir. 1985)

(Judge Cudahy, dissenting).8 A conflict which justifies pre-

® This Court has twice, in the past two years, allowed state

regulation which has directly impacted en aspects of the nuclear

industry that are regulated by the federal government. Pacific Gas

and Electric Co. v. Energy Resources Conservation and Develop-

ment Commission, 461 U.S. 190 (1983), Silkweod v. Kerr-McGee

Corp., 464 U.S. 238 (1984).

~~

emption must be actual. The court may not fabricate a

conflict where none actually exists. Huron Portland Ce-

ment v. City of Detroit, 326 U.S. 440 (1960). The conflict

must be of the type that it makes it physically impossi-

ble for Kerr-McGee to comply with both federal and state

regulations. Florida Lime & Avocado Growers, Inc. v.

Paul, 373 U.S. 182, 142 (1963), Silkwood v. Kerr-McGee,

464 U.S. 238, 104 S.Ct. 615, 621, 626 (1985). Neither Kerr-

McGee, the Seventh Circuit, nor the NRC has indicated

that it would be impossible for Kerr-McGee to comply

with both state and federal law to accomplish removal of

the hazardous waste. The purpose of Petitioners’ request

for relief is not to interfere with the NRC’s jurisdiction,

but to deprive Kerr-McGee of its choice of onsite encap-

sulation.®

In the instant case no conflict justifying preemption

exists. The purported conflict is merely speculative and

not actual. In the FES the NRC recommended onsite en-

capsulation of the waste. However, the FES submitted

by the NRC was rejected by the NRC hearing board. In

supporting their decision, the Seventh Circuit majority

stated that nothing could prevent residents of other states

from utilizing injunctive relief to prevent the relocation

of the waste from its current site to another state. Brown

v. Kerr-McGee Chemical Corp., 767 F.2d 1234, 1242 (7th

Cir. 1985). However, this is mere conjecture and is an im-

proper basis for a finding of preemption. Cf. Huron Port-

land Cement v. City of Detroit, 326 U.S. 440 (1960). Final-

ly, there is nothing to indicate that Kerr-McGee, pursuant

to a mandatory injunction, could not remove the toxic

® Kerr-McGee’s preference to bury the waste on site appears to

be motivated by the difference in cost to Kerr-McGee between on-

site and offsite burial which is approximately $35,000,000.00 (FES

pp. 3-23 to 3-24).

es

a

waste from its site while complying with both state and

federal law. Since no irreconcilable conflict with the Fed-

eral statutory scheme exists, the abrogation of common

law remedies, injunctive relief, on preemption grounds can

not be justified. Cf. Nadar v. Allegheny Airlines, 426 U.S.

290, 297, 299 (1976).

The majority’s opinion has impinged not only on the

traditional rights of individuals to seek injunctive relief

where no adequate remedy at law exists, but also on tra-

ditional State powers to regulate toxic waste.!° The NRC

has been exploring a solution for the wastes at the site

since 1979, yet no immediate resolution appears possible.

The immediate effect of the Seventh Circuit’s decision is

to divest the states of traditional powers to regulate local

health concerns associated with nonradiological hazardous

waste and force its citizens to suffer continuing exposure

to these toxic wastes because of the NRC’s inability to

resolve the problem in a reasonably prompt fashion. Since

the decision sought to be reviewed has the profound na-

tional effect of eliminating the possibility of judicial relief

in a domain of great public concern it is imperative that

this Court conduct a review of the decision.

10 The public importance of the issues presented for review is

underscored by the State of Illinois filing amicus briefs in sup-

port of Petitioners’ position with the Seventh Circuit.

=

CONCLUSION

For the foregoing reasons, Petitioners, Donald E. Brown;

Edith R. Brown; Edwin E. Brown; Betty Wolsfeld; and

West Chicago State Bank, respectfully pray that their

Petition for Writ of Certiorari be granted.

Respectfully submitted,

Aupo E. Bort

Wa tter P. Maksym

(Counsel of Record)

Drake OakBrook Plaza

2211 York Road, Suite 208

Oak Brook, Illinois 60521

(312) 789-8585

Counsel for Petitioners

Of Counsel:

SAMUEL J. Berar III

Borti, Marinaccio, DESALvo

& Pirper, Lrp.

Drake OakBrook Plaza

2211 York Road, Suite 208

Oak Brook, Illinois 60521

(312) 789-8585

— eS ee ee ae ee ee Se

A-l

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 84-1294

DONALD E. BROWN; EDITH R. BROWN; EDWIN E. BROWN;

BETTY WOLSFELD; and WeEST CHICAGO STATE BANK, as

Trustee u/t/a 213, dated September 16, 1969,

Plaintiffs- Appellants,

Uv.

KERR-MCGEE CHEMICAL CORPORATION, a Delaware

Corporation,

Detendant- Appellee.

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 82 C 6323—Frank J. MeGarr, Jd

ARGUED NOVEMBER 9, 1984—DECIDED JULY 18, 1985

Before Woop and CUDAHY, Circuit Judges, and

WISDOM, Senior Circuit Judge.*

WoobD, Circuit Judge. This case is yet another lawsuit

concerning the approximately forty-three acres of land

known as the Kerr-McGee West Chicago Rare Earths

Facility. See City of West Chicago v. United States Nuclear

Regulatory Commission, 701 F.2d 632 (7th Cir. 1983);

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

Cir.), cert. denied, 459 U.S. 1049 (1982). This time we are

asked to decide whether the Atomic Energy Act, as

amended, 42 U.S.C. § 2011 ef. seq., preempts a request for a

* The Honorable John Minor Wisdom, Senior Circuit Judge for

the Fifth Circuit, is sitting by designation.

A-2

state-law injunction to remove nonradioactive hazards

when the nonradioactive and radioactive materials are

inseparable. We hold that the federal law preempts

plaintiffs’ request that the district court order the defend-

ant Kerr-McGee to move the waste material to another

location.

#

The Kerr- McGee property in West Chicage consists of

an eight acre factory site, a twenty-seven acre storage

and disposal site, and an eight acre intermediate site

connecting the other two. From 1932 to 1973, Kerr-

McGee and its predecessor companies used the factory

area to process monazite ores containing thorium, a natu-

ral radioactive element, and then disposed of the solid and

liquid wastes in the storage area. Kerr-McGee stopped

processing monazite ores in 1973, but continues, under

license from the Nuclear Regulatory Commission

(“NRC”), to possess and store thorium ores at the West

Chicago site. Pursuant to a July 1977 order of the NRC,

Kerr-McGee has submitted to the NRC a proposed plan

for decommissioning the inactive West Chicago site and

for disposing of the contaminated materials. On May 27,

1983, the NRC issued its Final Environmental Statement

(“FES”), which outlined eight alternative proposals and

recommended that the buildings be razed and the wastes

be encapsulated and stored on the site for an in-

determinate time period. The Commission subsequently

authorized the Atomic Safety Licensing Board (““ASLB”’)

to hold a hearing on the FES — as requested by the

Illinois Attorney General.

Plaintiffs-appellants Donald E. Brown, Edith R.

Brown, and Betty Wolsfeld are the equitable and benefi-

cial owners of two parcels of residential property whose

backyards abut the Kerr-McGee site. Plaintiffs rent the

904 Joliet Street residence to Mr. and Mrs. R. Gill, and

Donald Brown and his mother Edith reside at 914 Joliet

Street.

A-3

Plaintiffs brought this action on a variety of state law

tort theories. Plaintiffs allege that the buildings on the

Kerr- McGee property are in such a state of disrepair as to

constitute a public and private nuisance.’ In addition,

plaintiffs claim that rats from the disposal site have

entered the Browns’ backyard and made numerous holes.

The plaintiffs also allege that the wastes dumped in the

storage area include hazardous chemicals such as barium

sulfate, sodium phosphate, ammonia, ethylenediaminete-

traacetic acid, sulfuric acid, and kerosene. According to

plaintiffs, the liquid wastes deposited in ponds at the

disposal site by Kerr-McGee and its predecessors have

permeated the soil and polluted the water table. The

water table is further polluted, plaintiffs allege, as rain

and melting snow percolate through the mounds of solid

waste and thereby become contaminated. Plaintiffs claim

that the underground waters near the Kerr-McGee site

exceed the water pollution standards set by the JJlinois

The plaintiffs allege that the current conditions existing in

the factory area include:

a) open pits filled with refuse and chemicals;

b) holes in floors two through four of building 9, averaging

three feet in diameter;

c) loose glass in windows;

d) broken glass on pavement below windows;

e) boards off windows;

f) animal litter scattered throughout the buildings;

g) fallen walis, debris, abandoned equipment, and chem-

icals;

h) fallen, collapsed, and sagging roofing; and

i) scattered empty beer cans, bottles, and other litter.

Plaintiffs further claim that the area is accessible to the “public

in general and children in particular through and over fences,”

and has “inadequate security and lighting.”

A-4

Pollution Control Board. Donald Brown also stated at his

deposition that rain drains off the waste piles and into his

yard.

Plaintiffs’ complaint requested three types of relief.

Count I sought an injunction ordering Kerr-McGee to

repair or destroy the existing structures on the property

and to remove all the hazardous wastes to some other

location. Count II sought compensatory damages, and

count III sought compensatory and punitive damages.

Kerr- McGee, offering affidavits that all the wastes are

radioactive and arguing that federal law preempts a

state-law injunction, moved for dismissal of that part of

count I requesting that the wastes be removed and stored

at some other location. The district court agreed that

federal law preempted such relief and granted partial

summary judgment for defendant Kerr-McGee. Plain-

tiffs appealed the summary judgment order to this court.

IT.

We first consider whether the district court order

granting partial summary judgment for defendant on

count I is appealable. The order is obviously not final, and

the district court did not certify the issue under 28 U.S.C.

§1292(b). Appellants argue, however, that this court has

jurisdiction under 28 U.S.C. § 1292(a)(1) because the

summary judgment had the practical effect of denying

plaintiffs’ request for permanent injunctive relief. We

agree.

Section 1292(a)(1) provides that appellate courts

have jurisdiction of interlocutory district court orders

Although the defendant phrased its motion as one to dismiss

part of the complaint, the defendant submitted a copy of the

FES, two affidavits, and portions of deposition testimony in

support of its motion. Since the district court relied on at least

the FES, we treat the motion as one for summary judgment.

Fed. R. Civ. P. 12(c).

A-5

“granting, continuing, modifying, refusing or dissolving

injunctions.” 28 U.S.C. § 1292(a)(1) (1982). The plaintiffs

never moved for an injunction, but an order having the

practical effect of denying an injunction is considered a

denial of an injunction for purposes of section 1292(a)(1).

See Carson v. American Brands, Inc., 450 U.S. 79, 83-84

(1981); Data Cash Systems, Inc. v. JS&A Group, Inc., 628

F.2d 1038, 1040 (7th Cir. 1980). Here the plaintiffs’

complaint sought injunctive relief in count I and damages

in counts II and III. By granting partial summary

judgment in favor of the defendant on plaintiffs’ request

that the wastes be moved elsewhere, the court denied the

plaintiffs part of the injunctive relief they sought; thus

the court’s order constitutes a denial of an injunction for

purposes of section 1292(a)(1). See Plymouth County

Nuclear Information Committee, Inc. v. Boston Edison Co.,

655 F.2d 15, 17 (1st Cir. 1981).

Prior to the Supreme Court’s decision in Carson, a

finding that the summary judgment had the practical

effect of denying an injunction would end our inquiry and

we would take jurisdiction. See Data Cash Systems, Inc.,

628 F.2d at 1040; cf. South Bend Consumers Club, Ine. v.

United Consumers Club, Inc., 742 F.2d 392, 394 (7th Cir.

1984). Carson, however, requires more. In Carson, the

Court held that an interlocutory order of a district court is

immediately appealable under section 1292(a)(1) only if

the appellant demonstrates that the order has a “serious,

perhaps irreparable, consequence,” and that the order can

be “effectually challenged” only by immediate appeal.

Carson, 450 U.S. at 84 (quoting Baltimore Contractors, Inc.

v. Bodinger, 348 U.S. 176, 181 (1955)). Although this two-

part test seems straightforward, there is some dis-

agreement — both among circuits and within this circuit

— as to whether Carsen applies when the interlocutory

order addresses the merits of the claim.

In Carson, a discrimination case, the Supreme Court

held that an appeal lay from a district court order denying

a joint motion of the parties to approve and enter a

negotiated consent decree. The Court decided that, be-

A-6

cause the order would cause the plaintiffs to lose both their

right to settle the case and any job opportunities that

might arise under the consent decree, the order had

“serious, perhaps irreparable, consequences’ that peti-

tioners [could] ‘effectually challenge’ only by an imme-

diate appeal.” 450 U.S. at 90.

Carson has raised some questions because, although

the Supreme Court states that the “serious, perhaps

irreparable, consequences” test is applicable to inter-

locutory judgments appealed under section 1292(a) (2), id.

at 84, the Court relies primarily on cases in which the

interlocutory orders were not decisions on the merits of

the appellants’ claims. See Gardner v. Westinghouse

Broadcasting Co., 437 U.S. 478, 480 (1978) (order denying

class certification); Switzerland Cheese Association, Inc. v.

E’. Horne’s Market, Inc., 885 U.S. 23, 24-25 (1966) (appel-

lants sought interlocutory review of district court’s denial

of appellants’ motion for summary judgment); Baltimore

Contractors, 348 U.S. at 177 (district court order refusing

to stay a state court accounting action pending arbi-

tration). Consequently, several courts, including a pane!

of this circuit, have read Carson narrowly to apply only to

interlocutory orders that did not reach the merits of

appellants’ claims or did not dispose of all requests for

injunctive relief. See Winterland Concessions Co. v. Trela,

735 F.2d 257, 260-61 (7th Cir. 1984); Center for National

Security Studies v. Central Intelligence Ayency, 711 F.2d

409, 412 (D.C. Cir. 1983); Tokarcik v. Forest Hills School

Instrict, 665 F.2d 443, 446-47 (3rd Cir. 1981), cert. denied,

458 U.S. 1121 (1982). These courts rely on General

Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 433

(1932), for the rule that an interlocutory order disposing

of all requests for injunctive relief and addressing the

merits of the case is immediately appealable under section

1292(a)(1) and Gardner and Carson for the proposition

that an order either not disposing of all requests for

injunctive relief or not addressing the merits is immedi-

ately appealable only if the appellant shows a “serious,

perhaps irreparable, consequence” that can be effectually

A-7

challenged only by immediate appeal. See Winterland

Concessions, 735 F.2d at 261 (citing Gardner, 437 U.S. at

481); Center for National Security Studies, 711 F.2d at 412-

13 & n.6; see also Gardner, 437 U.S. at 481 n.7 (“There is an

important distinction between an order denying an in-

junction on the merits and ‘one based on alleged abuse of a

discretionary power over the scope of the action.’’’)

(quoting Stewart-Warner Corp. v. Westinghouse Electric

Corp., 325 F.2d 822, 829 (2nd Cir. 1963) (Friendly, J.,

dissenting) ).

Other courts, including a different panel of this cir-

cuit, have held that Carson prescribes a broad rule appli-

cable to all appeals under section 1292(a)(1) — whether or

not the district court addressed the merits of the appel-

lant’s claim. See Carson, 450 U.S. at 84; South Bend

Consumers Club, 742 F.2d at 393-94; see also United States

v. RMI Co., 661 F.2d 279, 281-82 (3rd Cir. 1981); Gould v.

Control Laser Corp., 650 F.2d 617, 621 (Sth Cir. 1981). This

position is supported by the Supreme Court’s suggestion in

Carson that each of the prior cases on appellate jurisdic-

tion under section 1292{a)(1) could be explained in terms

of the “serious, perhaps irreparable, consequences”

requirement. Carson, 450 U.S. at 84-86; see Donovan v.

Robbins, 752 F.2d 1170, 1173-74 (7th Cir. 1985). Indeed,

the Court even suggested that Marvel, the case now used

as the basis for the “merits” distinction, reflected a

finding by the Court that “serious, perhaps irreparable,

consequences” would have resulted without an immediate

appeal. Carson, 450 U.S. at 86 n.11; see also Shirey v.

Bensalem Township, 663 F.2d 472, 477 (3rd Cir. 1981).

We need not resolve these inconsistencies, however,

because in the present case the two analyses yield the

same result. The courts adopting the “addressing the

merits” approach have held that an interlocutory order

denying, on the merits, a request for an injunction is

immediately appealable under section 1292(a)(1) only if

the order disposes of all pending requests for injunctive

relief. See Winterland Concessions, 735 F.2d at 261. If

A-8

some requests for injunctive relief are still pending in the

district court, the appellant must show that the inter-

locutory order will cause serious, perhaps irreparable,

consequences that can be effectually challenged only by

immediate appeal. See Center for National Security Stud-

ies, 711 F.2d at 413. In the present case, the district court

granted summary judgment for the defendant with re-

spect to plaintiffs’ request for an injunction ordering the

wastes removed to ‘some other safe and distant location,”

but the court did not decide whether plaintiffs are entitled

to the other requested injunctive relief. Thus, even

though the district court addressed the merits of plain-

tiffs’ claim for an injunction ordering removal of the

wastes, the Winterland Concessions approach would re-

quire plaintiffs to show that the interlocutory order will

result in serious, perhaps irreparable, harm. Since, as we

noted above, the South Bend Consumers Club approach

requires a showing of serious, perhaps irreparable, con-

sequences for any appeal under section 1292(a)(1), see 742

F.2d at 393-94, in this case both interpretations of Carson

will yield the same result.

In the present case, the depositions and the Final

Environmental! Impact Statement support plaintiffs’ con-

tention that toxic wastes at the Kerr-McGee site have

contaminated their land. Plaintiffs-appellants further

claim that such contamination has adversely affected their

health. Since in reviewing a summary judgment we view

all pleadings and supporting papers in the light most

favorable to the non-moving party, see Trulson v. Trane

Co., 738 F.2d 770, 771 (7th Cir. 1984), we assume that

detrimental health effects will result between now and the

district court’s final decision. Cf. RMI Co., 661 F.2d at 282

(no continuing harm during trial). Furthermore, accord-

ing to plaintiffs, every rainfall or melting snow flushes

more of the toxic wastes into their water supply. These

effects, because they are more than compensable economic

losses, cf. South Bend Consumer Club, 742 F.2d at 394, are

serious, perhaps irreparable, consequences that plaintiffs

A-9

can effectually challenge only by immediate appeal.’ See

Carson, 450 U.S. at 86-90 (lost job opportunities constitute

serious, perhaps irreparable, harm).

Citing Plymouth County Nuclear Information Com-

mittee, Inc., 655 F.2d at 18, defendant Kerr- McGee argues

that plaintiffs’ failure to seek a preliminary injunction

precludes a finding that serious or irreparable harm will

result pending the district court’s final decision. We agree

that a party’s failure to seek preliminary injunctive relief

is a good indication that the status quo can be maintained

until the ultimate conclusion of the litigation. See South

Bend Consumers Club, 742 F.2d at 394. But “a good

indication” is not a conclusive bar to interlocutory appeal.

See Kartell v. Blue Shield of Massachusetts, Inc., 687 F.2d

543, 553 n.21 (1st Cir. 1982). In Plymouth County, the

plaintiff waited nearly a year and a half between the

denial of its motion for a preliminary injunction and its

appeal of the dismissal of that part of the complaint

requesting injunctive relief. 655 F.2d at 17-18. In South

Bend Consumers Club, the appellant delayed requesting a

preliminary injunction. 742 F.2d at 394. Thus in both

eases the parties’ actions implied that no serious harm

would occur without a preliminary injunction.

The present case differs in that here preliminary

injunctive relief was impractical. Plaintiffs claim that the

toxic wastes on Kerr-McGee’s property have caused, and

continue to cause, serious, perhaps irreparable, harm to

Although Carson requires both that the order cause “serious,

perhaps irreparable, consequences” and that the order can be

“effectually challenged” only by immediate appeal, the Supreme

Court found the second prong satisfied in Carson because the

serious, irreparable consequences could result between the time

of the interlocutory order and the district court’s final decision.

Because the irreparable effects could result between the sum-

mary judgment and the appeal from the final judgment in the

present case, an appeal from the final judgment may not

provide plaintiffs adequate relief from the intervening harm.

Thus the order can be effectually challenged only by immediate

appeal.

3

A-10

plaintiffs’ health and to their property. If Kerr-McGee

were still creating and dumping toxic wastes on the site,

plaintiffs could request a preliminary injunction enjoining

Kerr- McGee from further dumping. But plaintiffs admit

that Kerr- McGee has not operated the factory since 1973,

and it would be irrational for a district court to enter a

preliminary injunction ordering Kerr-McGee to remove

all toxic wastes from the West Chicago site. See Triebwas-

ser & Katz v. American Telephone & Telegraph Co., 535 F.2d

1356, 13860 (2nd Cir. 1976) (purpose of a preliminary

injunction is to maintain the status quo, not to give the

moving party affirmative relief equivalent to the ultimate

relief sought). Consequently, in the unusual circum-

stances of this case, we believe that plaintiffs’ failure to

request preliminary injunctive relief does not preclude a

finding that the district court order will result in serious,

perhaps irreparable, consequences that can be effectually

challenged only by immediate appeal. We believe that

appellants have met their burden to prove such con-

sequences and we therefore find the order appealable

under section 1292(a)(1).

ITT.

The district court held that plaintiffs’ request for an

injunction ordering that the wastes be removed and

stored elsewhere was preempted because such an order

would conflict with the Commission’s exclusive authority

over the disposal of radioactive materials. Plaintiffs and

amicus State of Illinois, relying on Jllinois v. Kerr-McGee

and 42 U.S.C. § 2021(k), argue that federal law preempts

state regulation of radiation hazards but not state regu-

lation of nonradiation hazards. Furthermore, appellants

argue, since Illinois law permits a court to order ex-

humation of hazardous wastes, see Village of Wilsonville v.

SCA Services, Inc., 86 Ill. 2d 1, 31-36, 426 N.E.2d 824, 839-

41 (1981), the district court can find that the nonradiation

hazards of the Kerr- McGee wastes justify the removal of

the wastes to another site. We disagree, however, and

hold that when the radiation and nonradiation hazards

A-11

are inseparable, federal law preempts a state-law in-

junction ordering removal of the wastes.

State law, and thus state law remedies, are preempted

if federal law so pervades a given field as to evidence a

congressional intent to occupy that field. Silkwood v.

Kerr- McGee Corp., 104 S. Ct. 615, 621 (1984). Even if

Congress has not entirely displaced state law in a field,

state law is still preempted if an “actual conflict” exists

between state and federal law. Jd. Such a conflict occurs

“when it is impossible to comply with both state and

federal law” or “where the state law stands as an obstacle

to the accomplishment of the full purposes and objectives

of Congress.” Jd.

When a state regulation concerns an activity in-

volving radioactive materials, the preemption issue nor-

mally turns on whether the state is regulating radiation

or nonradiation hazards. See, e.g., Northern States Power

Co. v. Minnesota, 447 F.2d 1148, 1149-54 (8th Cir. 1971)

(radiation hazards), aff'd 405 U.S. 1035 (1972); Marshall v.

Consumers Power Co., 65 Mich. App. 237, 247, 237 N.W.2d

266 (1976) (nonradiation hazards). This distinction is

reflected by the language of section 274(k) of the Atomic

Energy Act (“AEA”), which states:

(k) Nothing 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.

42 U.S.C. § 2021(k) (1982).‘ Thus the AEA preempts a

‘ Although this provision applies only to the preemptive effect

of section 274, the Supreme Court has interpreted section

274(k) asa reflection of the genera! distinction between federal

and state authority to regulate activities covered by the Atomic

Energy Act, as amended. See Pacific Gas and Electric Co. v. State

Energy Resources Conservation & Development Comm'n, 461 U.S.

190, 210 (1983).

A-12

state attempt to impose more stringent limitations on the

radioactive effluents of a nuclear power plant. See North-

ern States Power, 447 F.2d at 1147-50. By contrast, states

retain the power to determine the need for additional

electrical capacity and they may choose not to build a

nuclear power plant for economic reasons. See Pacific Gas

and Electric Co. v. State Energy Resources Conservation &

Development Commission, 461 U.S. 190, 205-08 (1983).

Analogously, a private plaintiff may rely on state law to

obtain injunctive relief fram nonradiation hazards that do

not involve radiation hazards. Illinois v. Kerr-McGee, 677

F.2d at 582.

If the nonradiation hazards at the Kerr-McGee site

were separable from the radiation hazards, plaintiffs could

maintain an action to have the nonradioactive wastes

removed “to some other safe and distant location.” See

Village of Wilsonville, 86 Ill. 2d at 35-36, 426 N.E.2d at 841.

Congress clearly did not intend federal law to “occupy the

field” of nonradioactive hazardous waste disposal. See 42

U.S.C. § 6929 (1982); City of Philadelphia v. New Jersey,

437 U.S. 617, 620-21 n.4 (1978). Furthermore, because the

plaintiffs seek to abate the nonradiation rather than the

radiation hazards, removal of separable, nonradioactive

material would not cause a conflict between state and

federal law. See Jilinois v. Kerr-McGee, 677 F.2d at 582.

Our analysis is made somewhat more complex because, as

both parties agree, the radioactive and nonradioactive

materials are “inextricably intermixed.”

In this case, we find no explicit congressional intent or

pervasive federal scheme that preempts the state laws

relied on by plaintiffs. When Congress evidences an

intent to occupy a given field, any state law falling within

that field is preempted. Silkwood, 104 8. Ct. at 621. Thus

the AEA, which provides a pervasive scheme for regu-

lating radioactive materials, preempts any state regu-

A-13

lation of radiation hazards.’ Northern States Power Co., 447

F.2d at 1147-50. But while an Illinois law regulating

radiation hazards would be void, see Commonwealth Edison

Co. v. Poilution Control Board, 5 Ill. App. 3d 800, 801, 284

N.E.2d 342, 342 (1972), the laws relied on by plaintiffs are

undoubtedly valid in soine circumstances. These laws do

not regulate radiation hazards but instead concern pollu-

tion standards, building codes, and public nuisance. In-

deed, as we held in Illinois ». Kerr-McGee, plaintiffs can

bring an action based on these laws against Kerr-McGee

as iong as the remedy involves no radioactive materials.

677 F.2d at 582.

Nonetheless, plaintiffs’ request for injunctive relief is

still preempted if a conflict exists between state and

federal law. To determine whether a conflict exists, we

must look to the facts of the case. J/linois v. Kerr- McGee,

677 F.2d at 581. The wastes at the West Chicago site,

because they consist of “the tailings or wastes produced by

the extraction or concentration of ... thorium from any

ore processed primarily for its source material content,”

constitute “byproduct material” under the Atomic Energy

Act, as amended by the Uranium Mill Tailings Radiation

Control Act. 42 U.S.C. § 2014(e)(2); see FES, at H-4, H-5

(“[A]t least 60% of the monazite ore was processed

primarily for its source material content and the resulting

tailings and wastes are clearly byproduct material.’’). The

NRC has exclusive authority to regulate the radiation

hazards of the byproduct material’ and Kerr-McGee must

obtain a license from the NRC for decommissioning the

West Chicago site and disposing of the wastes. See 42

U.S.C. § 2113-14.

States may assume responsibility for the regulation of some

radiation hazards by entering an agreement with the NRC. 42

U.S.C. § 2021(b). This provision is not applicable here, however,

since Illinois has not entered such an agreement.

6

As noted above, Illinois has not entered an agreement with

the NRC to regulate the radiation hazards of byproduct mate-

rial. See 42 U.S.C. § 2021(b).

A-14

Plaintiffs asked the district court to order Kerr-

McGee to remove the wastes to “some other safe and

distant location.” Plaintiffs and amicus argue that the

inseparability of the materials should not alter the anal-

ysis of Jllinois v. Kerr-McGee; they suggest that the

district court can find that the nonradiation hazards

violate Illinois pollution laws and can order Kerr- McGee

to move the wastes to some site that both satisfies [llinois

pollution standards and meets the licensing standards of

the Nuciear Regulatory Commission. This argument reads

Illinois v. Kerr- McGee too broadly. In that case, we held

only that, with respect to the nonradiation hazards, the

City of West Chicago could ‘pursue its own remedies only

to the extent that they do not conflict with NRC regu-

lation of radiation hazards.” 677 F.2d at 584.

In the Final Environmental Statement for the Kerr-

McGee site, the NRC staff analyzed eight different dis-

posal alternatives and recommended on-site encapsulation

as the best alternative. Although the Commission has not

yet decided which alternative to license, an injunction

ordering Kerr-McGee to remove the byproduct material

from the West Chicago site would, in effect, substitute the

judgment of the district court for that of the NRC as to

whether on-site encapsulation is the best method of stor-

ing this byproduct material. True, the injunction sought

by plaintiffs would not order the NRC to license a specific

waste disposal site, but it would prevent the NRC from

choosing the site recommended by the NRC staff.

Furthermore, if federal law does not preempt plaintiffs’

request for an injunction, notching prevents neighbors of

other prospective sites from relying on state law to obtain

injunctions preventing NRC consideration of those loca-

tions. Such state law remedies, though not attempts to

regulate the radiation hazards of byproduct material,

nonetheless interfere with the NRC’s ability to choose the

method of disposal that, in light of radiation, nonradia-

tion, and economic considerations, is the most appropriate.

We therefore hold that plaintiffs’ request for an injunction

ordering the Kerr- McGee wastes moved elsewhere is pre-

icc

A-15

empted because, if granted, the injunction would stand

“as an obstacle to the accomplishment of the full purposes

and objectives” of federal regulation of radiation hazards.

Silkwood, 104 S. Ct. at 621.

Our holding does not leave plaintiffs without a rem-

edy. Cf. Silkwood, 104 S. Ct. at 623; Illinois v. Kerr-MceGee.

677 F.2d at 583. Congress instructed the NRC to ensure

“that the management of any byproduct material... is

carried out in such a manner as... the Commission deems

appropriate to pretect the public health and safety and

the environment from radiological and nonradiological

hazards” associated with the possession of byproduct ma-

terial. 42 U.S.C. § 2114(a)(1) (emphasis added); see also

42 U.S.C. § 2114(c) (licensee may propose alternatives to

Commission’s requirements, but Commission may accept

alternatives only if they will achieve an equivalent or

greater level of safety). The Commission must also ensure

chat the approved disposal plan conforms with the stan-

dards set by the Environmental Protection Agency for the

protection of the public health and the environment from

the radiation and nonradiation hazards associated with

the disposal of byproduct material. See 42 U.S.C.

§ 2114(a)(2); see also 42 U.S.C. § 2022(b)(1); Health and

Environmental Protection Standards for Uranium and

Thorium Mill Tailings, 40 C.F.R. §§ 192.40-42 (1984). In

the present case, the NRC staff has evaluated the radi-

ation and nonradiation hazards of the eight alternatives,

weighed these hazards against the costs of the alterna-

tives, and recommended on-site encapsulation of the

wastes. At the hearing on the FES, the plaintiffs may try

to convince the NRC that, for reasons related to either

radiation or nonradiation hazards, the West Chicago site

is unfit for storing the byproduct material. If plaintiffs

decide that participating in the upcoming hearing is too

expensive, they can rely on the State of Illinois and the

City of West Chicago, who will participate, to represent

their interests.

For the foregoing reasons, plainti%s’ request for in-

junctive relief ordering Kerr-McGee to remove the mill

ee a ee ee

A-16

tailings and other wastes to “some other safe and distant

location” is preempted by federal law.’ The order of the

district court is

AFFIRMED.

In his dissent, Judge Cudahy suggests that our holding

cannot be valid after Silkwood. The Silkwood decision was based

on legislative history that revealed a congressional intent to

allow plaintiffs to recover damages for injuries caused by nucle-

ar hazards. 1045S. Ct. at 622-25. Even in allowing the recovery

of punitive damages, however, the Supreme Court suggested

that federal law would preempt a state law damage award if the

award caused an irreconcilable conflict between state and feder-

al standards or if the imposition of a state standard would

frustrate the objectives of the federal law. Jd. at 626. Here,

although the request is based on state regulation of nonradioac-

tive hazards, an injunction ordering the wastes moved to some

other location frustrates the objectives of federal law by pre-

venting the NRC from choosing what may be the most appro-

priate method of storing this radioactive material. Therefore

the request for an injunction is preempted.

In addition, Judge Cudahy’s second footnote suggests that

he may have read our holding too broadly. This appeal concerns

only the plaintiffs’ request for an injunction ordering the

removal of the radioactive material from the West Chicago site.

The plaintiffs may be able to obtain injunctive relief that does

not require the removal of radioactive materials (¢.g., erection of

fences to prevent entry, extermination of rats). Moreover, once

the NRC licenses a site, the state may regulate the nonradiation

hazards so long as that regulation does not create an irreconci-

lable conflict or frustrate the objectives of the federal law. But

neither of these issues has been tried or is before us. For today

we hold only that federal law preempts a nonagreement state,

see supra notes 5-6, or a plaintiff relying on state law from

obtaining an injunction ordering the removal of radioactive

wastes to some other site.

A-17

CUDAHY, Circuit Judge, concurring in part and dis-

senting in part.

I agree with the analysis of the majority in section II

of its opinion, in which it reasons that the district court

order granting summary judgment on that portion of the

complaint which seeks an injunction requring Kerr-

McGee to remove wastes from the West Chicago site is

appealable, and that therefore this court has jurisdiction.

However, the majority finds preemption much too

easily in section III. We are faced here with a situation in

which legitimate concerns of the states and local residents

may be ignored by the Nuclear Regulatory Commission.

In this whole field Congress has been very reluctant to

override state prerogatives. I do not think the courts

should crash through the tangled thicket of waste disposal,

and in the process upset the balance achieved by Congress

between state and federal law.’

It is important, I believe, to begin by recognizing that

this is not an action to force reduction in levels of

radiological hazards as such. As the majority recognizes,

the plaintiffs’ action is based on state law concerning

pollution standards, building codes and public nuisances.

The majority also concedes that none of these fields of

state regulation are preempted by the Atomic Energy

Act. Further, since the suit is based on these grounds, I

think Silkwood v. Kerr-McGee Corp., 104 S. Ct. 615 (1984),

and Pacific Gas & Electric Co. v. State Energy Resources

Conservation and Development Commission, 461 U.S. 190

(1983), not to mention this court’s recent decision in

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

Cir.), cert. denied, 459 U.S. 1049 (1982), are more apposite

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

(8th Cir. 1971), summarily aff'd, 405 U.S. 1035 (1972).

Indeed, it seems to me that Silkwood requires that we find

no preemption here.

Whether Congress’s reluctance to preempt is sound public

policy for the long run is not for us to decide. It is abundantly

clear to me, however, that Congress has been reluctant.

A-18

It is also important that we recognize, as the district

court apparently did not, the nature of the proceedings

presently pending before the NRC. See generaliy Kerr-

McGee App. 22-32. Kerr-McGee is required to seek

amendment of the license under which it operates the

West Chicago site. It is presently asking the permission of

the NRC to undertake its preferred course of disposal of

the wastes in question, on-site encapsulation. Even if the

NRC approves that application, it will only be permission

for Kerr-McGee to so dispose of the wastes. Kerr-McGee

will not be required to do so, and there appears to be

nothing other than Kerr-McGee’s economic interest

which prevents it from applying to the NRC for per-

mission to dispose of the wastes in a manner which

complies with both federal and state law.

There is little doubt that state regulation of the

radiation hazards associated with nuclear power gener-

ation is preempted by federal regulation, Northern States

Power, 447 F.2d 1143, because “the Federal Government

has occupied the entire field of nuclear safety concerns,”

Pacific Gas & Electric, 461 U.S. at 212, see Silkwood, 104 5.

Ct. at 617. Cf. Pacific Gas & Electric, 461 U.S. at 205 (state

regulation of “radiological safety aspects involved in the

construction and operation of a nuclear plant” is preemp-

ted); id. at 223-29 (Blackmun, J. concurring) (state

safety regulation not wholly preempted). However, Con-

gress intended to preempt only the regulation of radio-

logical hazards. Pacific Legal Foundation v. State Energy

Resources Conservation and Development Commission, 659

F.2d 903, 923 (9th Cir. 1981), aff'd sub nom. Pacific Gas &

Electric, 461 U.S. 190 (1983); Northern States Power, 447

F.2d at 1149-50. See also Pacific Legal Foundation, 659

F.2d at 923 n.32 (collecting cases holding same). “[T jhe

States exercise their traditional authority over the need

for additional generating capacity, the type of generating

facilities to be licensed, land use, ratemaking, and the

like.” Pacific Gas & Electric, 461 U.S. at 212 (emphasis

supplied; footnote omitted). This is in accord with the

language of section 274(k) of the Atomic Energy Act,

which permits the states “to regulate activities for pur-

A-19

poses other than protection against radiation hazards.” 42

U.S.C. § 2021(k). See Pacific Gas & Electric, 461 U.S. at

210.

The purpose of the state regulation is critical in

determining whether the regulation is preempted. Paci-

fic Gas & Eleciric 461 U.S. at 213-16; Silkwood, 104 S. Ct.

at 631 (Blackmun, J. dissenting). There is no claim here

that the purpose of Illinois’ nuisance law, building codes

and pollution standards is to regulate the radiological

hazards or nuclear safety aspects of nuclear fuel process-

ing. Therefore these are not preempted by the Atomic

Energy Act and the subsequent federal regulation. Paci-

fic Gas & Electric, 461 U.S. at 216 ("| W]e accept Califor-

nia’s avowed economic purpose as the rationale for enact-

ing § 25524.2. Accordingly, the statute lies outside the

occupied field of nuclear safety regulation.” (footnote

omitted)). The fact that enforcement of these state laws

may impact on how Kerr- McGee carries out its business at

the West Chicago site is not conclusive that they are

preempted. Indeed, the Supreme Court has twice in the

past two terms allowed state regulation which has directly

impacted on aspects of the nuclear industry that are

regulated by the federal government.

In Pacific Gas & Electric v. State Energy Resources

Conservation and Development Commission, 461 U.S. 190

(1983), the Court held that a California statute which

prohibited the construction of any nuclear generating

plants until a method for dispesal of radioactive wastes

was approved by the NRC was not preempted. The statute

was based on the supposed possible economic unviability of

nuclear generation of electricity unless such a disposal

method was developed. Although the statute was based on

economic considerations, which have long been regulated

by the states, the statute gave the state an effective veto

over the construction of any nuclear generating stations

within its borders until certain safety issues were dealt

with by the federal government. Since the purpose of the

state statute was economic not radiation safety, it was not

preempted, 461 U.S. at 216, even though it had an effect

A-20

on the radiation hazards to which the people of California

were exposed.

Just last year the court went even further when it

decided Silkwood v. Kerr-McGee Corp., 104 S. Ct. 615

(1984). In Silkwood the Court upheld a state-authorized

award of punitive damages for injuries caused by nuclear

hazards even though the NRC was vested with exclusive

regulatory authority over the safety aspects of nuclear

development and there had been no significant violation

of the federal safety standards. 104 S. Ct. at 619, 626.

Punitive damage awards have a clear impact on federal

safety standards, for in effect they set independent state

safety standards. See Silkwood, 104 S. Ct. at 628-30

(Blackmun, J. dissenting); id. at 635 (Powell, J. dis-

senting). Yet the Court held that the award of punitive

damages was not preempted. If punitive damages for

violating a jury-imposed standard of radiological safety

are not barred, then clearly injunctive relief based on

state laws not having as their purpose the imposition of

radiological safety standards cannot be preempted.

The majority makes much of the fact that the radio-

active and nonradioactive materials are “inextricably in-

termixed,” arguing that because of this inseparability

state regulation of the nonradioactive materials is pre-

empted by federal regulation of the radiological safety

aspects of the radioactive material. While this argument

might have some plausibility as an initial matter, it

cannot be valid after Silkweod. Karen Silkwood was

contaminated with plutonium from a Kerr-McGee

processing plant. As the majority surely knows, pluto-

nium is itself a radioactive material. The punitive dam-

ages awarded by the jury were to penalize the company

for its conduct which allowed the release of this very

material. On the majority’s theory, these punitive dam-

ages are preempted, for if material is radioactive, then

any nonradioactive aspects are “inextricably intermixed”

with its radioactive aspects. Yet the Supreme Court held

that the punitive damages were not preempted by the

NRC’s regulation of the safety aspects of the production of

A-21

plutonium. 4A fortiori state regulation for otherwise per-

missible purposes of material that is not radioactive can-

not be preempted even when the material is “inextricably

intermixed” with radioactive material.

The majority notes that the NRC is currently consid-

ering a number of alternative sites for disposing of the

wastes presently at the West Chicago site. The majority

then speculates that individuals residing adjacent to these

other sites or state authorities might bring injunctive

actions similar to this one, and jumps to the conclusion

that therefore this action is preempted. This approach is

simply inadmissible. The majority is correct to be aware of

the possibility of this conflict, in which the several states

bar each of the options approved or considered by the

NRC. But so far this conflict is possible, not actual, and it

is Sheer speculation to conclude that it will ever transpire.

Currently there is no conflict between the federal and

state schemes because it is not “physically impossible” for

Kerr-McGee to comply with both. Silkwood, 104 S. Ct. at

626; Pacific Gas & Electric, 461 U.S. at 204; Florida Lime &

Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-48 (1963).

A court should not delve inte hypothetical situations

seeking out conflicts where none clearly exist. Exron Corp.

v. Governor of Maryland, 437 U.S. 117, 130-31 (1978): see

Huron Portland Cement Co. ». City of Detroit, 362 U.S. 440,

446 (1960).

This court has recognized these very principles in

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

Cir.), cert. denied, 459 U.S. 1049 (1982). In that case we

stated that there must be “a direct conflict between

federal and state law that cannot be reconciled. Courts

are not to seek out conflicts where none necessarily exist,

.... 677 F.2d at 579 (citations omitted: emphasis supp-

lied). With all respect, it seems to me that the majority is

seeking out a conflict where one does not necessarily exist

in order to bolster its shaky argument for preemption. All

Kerr- McGee need do in order to preclude any conflict is to

request NRC permission for a disposal alternative which

satisfies state law. Further, the hypothetical conflict

nye . bef \P Ag RR, LT A Printer a Ve. Ign ~ a, Svnct Saag . 7

auth dda Raa Nena Bis Nese teh 7a eR te RIAN ate ad Pae Na iN la) ini tere

A-22

postulated by the majority is one in which the state law

might prohibit something the NRC would merely permit.

“This sort of hypothetical conflict is not sufficient to

warrant pre-emption.” Eyrron Corp., 437 U.S. at 181. See

Pacific Gas & Electric, 461 U.S. at 218-19 (“Because the

NRC order does not and could not compel a utility to

develop a nuclear plant, compliance with both it and §

25524.2 [the state statute] is possible.”). I therefore

conclude that the injunctive relief requested by plaintiffs

is not preempted.

However, it does not follow from the fact that the

requested injunctive relief is not preempted that it would

be proper to grant that relief at this time. I believe that

this is an apt and proper case for application of the

doctrine of primary jurisdiction. The question underlying

the plaintiffs’ request for injunctive relief—whether the

mill tailings materia! should be disposed of at the West

Chicago site or elsewhere—is presently pending in the

NRC administrative proceeding. The State of Illinois is

one of the parties to that proceeding and has advanced the

same position asserted by plaintiffs here. There is no

contention that the state has not been adequately repre-

senting the plaintiffs’ interests.

Primary jurisdiction is a common jaw doctrine dating

back at least to Teras & Pacific Railway Co. v. Abilene

Cotton Oil Co., 204 U.S. 426 (1907). Primary jurisdiction

applies where a claim is originally cognizable in the

courts, and comes into play whenever enforcement of

the claim requires the resolution of issues which,

under a regulatory scheme, have been placed within

the special competence of an administrative body; in

such a case the judicial process is suspended pending

referral of such issues to the administrative body for

its views.

A-23

United States ». Western Pacific Railroad Co., 352 U.S. 59,

64 (1956). The Supreme Court has explained the reason-

ing underlying primary jurisdiction as follows:

[I]n cases raising issues of fact not within the con-

ventional experience of judges or cases requiring the

exercise of administrative discretion, agencies

created by Congress for regulating the subject matter

should not be passed over. This is so even though the

facts after they have been appraised by specialized

competence serve as a premise for legal consequences

to be judicially defined. Uniformity and consistency

in the regulation of business entrusted to a particular

agency are secured, and the limited functions of

review by the judiciary are more rationally exercised,

by preliminary resort fer ascertaining and inter-

preting the circumstances underlying legal issues to

agencies that are better equipped than courts by

specialization, by insight gained through experience,

and by more flexible procedure.

Far East Conference v. United States, 342 U.S. 570, 574-75

(1952). See also Bradford School Bus Transit, Inc. v.

Chicago Transit Authority, 5387 F.2d 948, 949 (7th Cir.

1976), cert. denied, 429 U.S. 1066 (1977); see generally 4 K.

DAVIS, ADMINISTRATIVE LAW TREATISE, ch. 22 (2d

ed. 1983); B. SCHWARTZ, ADMINISTRATIVE LAW

481-497 (1976).

Primary jurisdiction is applicable here. There are

currently proceedings pending before the NRC con-

cerning Kerr-McGee’s application for a license for on-site

encapsulation of the materials now located at the West

Chicago site. The NRC is considering eight 2:-; >sal

alternatives. There is a possible, though not yet any

actual, conflict between NRC recommendations and state

law. Most important, the NRC presumably has some

specialized knowledge and expertise in this field. Finally,

I note that several other courts have applied the doctrine

of primary jurisdiction in closely analogous situations

when NRC proceedings were pending. See, e.g., Honicker

54

%

:

*

Ss

5

E

A-24

v. Hendrie, 465 F. Supp. 414, 419 (M.D. Tenn. 1979), affa

mem., 605 F.2d 556 (6th Cir.), cert. denied, 444 U.S. 1072

(1980); Paskavitch v. United States Nuclear Regulatory

Commission, 458 F. Supp. 216 (D. Conn. 1978); Nader v.

Ray, 363 F. Supp. 946, 953 (D.D.C. 1973).

The State of Illinois argues as amicus that primary

jurisdiction is not applicable here because the plaintiffs’

claims are based on state law and the NRC cannot enforce

the relief requested. This argument is beside the point

because primary jurisdiction is applicable even though thie

agency cannot grant the relief requested. See United

States v. ICC, 337 U.S. 426, 464 n.11 (1949) (Frankfurter,

J. dissenting); Lichten v. Eastern Air Lines, 189 F.2d 939

(2d Cir. 1951); SCHWARTZ, supra, 491; see also id. 492

n.253 (collecting cases). Asa practical matter, if the NRC

does adopt certain of the disposal proposals now before it,

the plaintiffs will get the relief they seek, though on

different legal grounds. If, on the other hand, the NRC

fails to adopt one of those alternatives, the plaintiffs will

not be left without a remedy. It must “be emphasized that

primary jurisdiction gives the agency the first, not the

last, word on the matter.” SCHWARTZ , supra, 493. The

initial, but not the final decision is given to the agency.

Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481,

496-99 (1958) (invalidating rate structure held to be

within primary jurisdiction of Board in Far East Confer-

ence, 342 U.S. 570, and United States Navigation Co. 1.

Cunard Steamship Co., 284 U.S. 474 (1932)); see DAVIS,

supra, § 22:7.

In sum, I do not believe that this injunctive action based

on state law has been preempted, but rather that the NRC

has primary jurisdiction over the issue underlying this ac-

tion. Therefore the majority errs in affirming the dismissal

of count I of the complaint. But it would also be error for

the district court to proceed further in this litigation at this

time. The proper course is for this court to reverse and re-

mand with instructions that the district court stay its

proceedings pending the NRC’s decision in the proceedings

now before it. Pennsylvania Railroad Co. v. United States,

A-25

363 U.S. 202 (1960); Western Pacific Railroad, 352 U.S. at

64; DAVIS, supra, 91-92. Cf. Nader v. Allegheny Airlines,

Inc., 426 U.S. 290 (1976) (stay under doctrine of primary

jurisdiction of common law tort action for fraudulent mis-

representation not appropriate where, inter alia, no technical

expertise was relevant, there was no need for regulatory

uniformity and the issues were within the court’s com-

petence). With the NRC’s consideration of the disposal issue

before it, the district court could then go on to consider

whether the state law interests have been adequately con-

sidered, whether there is an actual conflict between the state

and federal requirements, and, if it is not physically impossi-

ble for Kerr-McGee to obey both state and federal law, what

is the proper relief for these plaintiffs.?

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

The majority reaches the extreme and unprecedented con-

clusion that the NRC has, in effect, exclusive jurisdiction over

nonradiation hazards at the site in question.

B-1

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

October 24, 1985

Before

Hon. HARLINGTON Woop, JR., Circuit Judge

Hon. RICHARD D. CuDAHY, Circuit Judge

ion. JOHN MINOR Wispom, Senior Circuit Judge*

No. 84-1294

DONALD E. Brown; EbDITH R. Brown; EDWIN E. Brown;

Betty WOLSFELD; and WEsT CHICAGO STATE BANK, as

Trustee u/t/a 213, dated September 16, 1969,

Plaintiffs-Appellants,

v.

KERR-MCGEE CHEMICAL CORPORATION,

a Delaware corporation,

Defendant-Appeliee.

Appeal from the United States District Court for the

Northern District of Hlinois, Eastern Division.

No. 82 C 6323--Frank J. MeGarr, Chief ./udge

* The Honorable John Minor Wisdom, Senior Circuit Judge for

the United States Court of Appeals for the Fifth Circuit, is sitting

by designation.

B-2

ORDER

The dissenting opinion in this case issued July 18, 1985,

is modified as follows:

Page 24, 6th line from the bottom of page, delete: ‘But

it would also be error to reverse and remand for further

proceedings at this time. The proper course would be for

the district court to stay its proceedings pending the

NRC’s decision in the proceedings now before it.’”’ Sub-

stitute therefor: ‘‘But it would also be error for the dis-

trict court to proceed further in this litigation at this time.

The proper course is for this court to reverse and remand

with instructions that the district court stay its proceed-

ings pending the NRC’s decision in the proceedings now

before it.”

On consideration of the petition for rehearing and sug-

gestion for rehearing in banc filed in the above-entitled

cause on August 15, 1985, by plaintiffs-appellants, no judge

in active service has requested a vote thereon, and a ma-

jority of the judges on the original panel have voted to

deny a rehearing.** Accordingly,

It Is ORDERED that the aforesaid petition for rehear-

ing be, and the same is hereby, DENIED.

** Judge Cudahy voted to grant the petition for rehearing.

Piet

— -

= oe

© Vth

>.

—

4

J

k

ua - a eed

e

ia?