ILLINOIS POLLUTION CONTROL BOARD
May 3,
1972
APPLICATION OF
COMMONWEALTH EDISON CO.
)
##70—2l,
71—20, 71~328, 71-354
(Dresden, Quad-Cities,
Zion,
and LaSalle)
APPLICATION OF
GENERAL ELECTRIC
CO.
)
#
71-238
(Midwest Fuel Recovery Plant)
Opinion of the Board
(by Mr.
Currie):
These cases concern applications for permits to construct
or
to operate nuclear power plants or nuclear fuel reprocessing
plants under Title V1-A of the Environmental Protection Act.
The issue before us,
to which we have asked
the parties to respond,
is the effect on our proceedings of the recent decision of the
United States Supreme Court
in Minnesota v. Northern States
Power Co.
(
40 U.S.L. Week
3479, 1972), which affirmed
an Eighth Circuit decision,
447
F.
2d 1143
(1971), that
The federal government has exclusive authority under the
doctrine of preemption
to regulate
the construction and
operation of nuclear power plants,
which necessarily includes
regulation of the levels of radioactive effluents discharged
from the plant.
Our reasons for taking
a contrary view, which led us
to
assume jurisdiction
in the present cases and
to issue conditioned
permits in the Dresden and Quad-Cities cases, are detailed in
our opinion of March
3,
1971,
in the Dresden case
(#70-21).
Federal law being what the Supreme Court says
it is, we must
reconsider our authority.
The most obvious aspect of Northern States is that we can
no longer impose more stringent regulations
than the federal on
nuclear power plants,
for that is what Minnesota tried to do.
Second,
as General Electric points out,
there is no basis
for
distinguishing in terms of the policies underlying federal
pre-emption between power plants
and fuel reprocessing facilities.
The federal statute relied on by the Supreme Court to oust state
authority refers not to power plants but to
“any production or
utilization facility”
(~
2021(c)).
We cannot impose stricter
standards than the federal on fuel reprocessing plants
(production
facilities)
either.
4—445
The question has been raised whether the Board may retain
jurisdiction
to apply state standards equivalent to the federal,
or, what amounts
to the
same thing,
to apply the federal standards
themselves.
We do not believe the statute authorizes us to do
so,
for we doubt the General Assembly would have imposed
the ex-
penses and burdens of
a detailed Board proceeding simply to
enforce federal standards that the Atomic Energy Commission will
itself apply in every case.
The reasor for such
a duplicative
procedure are not apparent.
Moreover,
for reasons given below,
we believe such a procedure would conflict with federal policy
as spelled out in the Northern.States Power case.
While concurrent federal and state court jurisdiction to
enforce federal law
is the general rule,
see,
e.g.,
Charles
Dowd Box Co.
v. Courtney,
368
U.S.
502
(1962),
the setting up
of
a specialized federal administrative agency,
excluding the
jurisdiction of federal courts,
has been held in the analogous
case of unfair labor practices
to exclude state jurisdiction
as well:
Congress did not merely lay down
a substantive rule of
law to be enforced by any tribunal competent to apply law
generally to the parties.
It went on to confide primary
interpretation and application of its
rules
to a specific
and specially constituted tribunal
and prescribed
a particular
procedure for investigation, complaint and notice, and
hearing and decision.
.
.
.
Congress evidently çonsidered
that centralized administration of specially designed
procedures was necessary
to obtain uniform application
of its substantive rules and to
avoid these
sic
diversities
and conflicts likely
to result from a variety of local
procedures
and attitudes toward
labor controversies.
Garner v.
Teamsters Union,
346
U.S.
485
(1953).
In light of the Supreme Court’s holding in Northern States
Power,
the policies enunciated
in Garner apply with even greater
force to the field of radiation.
As
in labor,
the States are
forbidden
to impose substantive restrictions on radioactive
discharges.
•As
in labor,
a specialized federal tribunal
(the
AEC)
is given jurisdiction, exclusive
of the federal courts,
to
administer
the federal regulations in the first instance under
it~permit program.
As in labor,
state tribunals deciding
cases under
the federal regulations
or equivalent state standards
might well create
“diversities and conflicts”
by varying interpretations
of such federal standards as
“best practicable”
control.
Moreover,
the case for state jurisdiction
to enforce federal law is weaker
in the case
of radiation-~thanin that of labor.
For state
jurisdiction in the labor field would have alleviated the case-
load of the NLRB;
the AEC,
in contrast,
is required by statute
to consider
a license
for every nuclear facility.
Rather than
furthering federal policy by spreading the workload,
state
4— 446
jurisdiction in radiation cases, given Northern States Power,
could only frustrate federal policy, by producing state
decisions in conflict with those of the AEC in the
same case.
No reason appears
to think Congress was willing
to risk such
frustration or the pointless duplication of effort that dual
jurisdiction would entail.
State jurisdiction to license radioactive discharges
from
nuclear facilities makes excellent sense if
the States may
impose their own requirements;
it makes none if they may only
duplicate AEC proceedings in the same case.
We hold
that Northern
States Power deprives us of jurisdiction
to require
a permit
for
radioactive discharges from nuclear facilities subject to
licensing by the AEC.
The intervenors
in the General Electric
and LaSalle cases
argue that we should nevertheless retain jurisdiction to pass
upon other environmental aspects of the proposed facilities,
such
as thermal pollution and the land-use factors
in plant
siting,
to which Title VI-A extended our jurisdiction as held
in
the Dresden case.
It is true
that nothing
in the Northern
States Power decision or in the statutes there construed de-
prives the States
of jurisdiction over non—radiation matters
affecting nuclear facilities.
The Atomic Energy Act expressly
negates any intention to interfere with State authority over
such questions
(~
2021(k)).
But Edison
and General Electric
argues that, while the General Assembly could constitutionally
require
a Board permit based on non—radiation aspects
of
a
nuclear plant, the principal focus of Title VI-A was radiation,
and that with radiation excised the legislative purpose
is
so
frustrated that
the title must fall
in its entirety.
An examination of Title VI-A supportts
this view~
The
title
is named “Atomic Radiation.”
The legislative finding,
indicating why the provision was enacted,
is that “radiation
constitutes
a serious threat to health and well-being.”
The
title applies only to “nuclear” generating plants and to “nuclear”
fuel reprocessing plants.
Permits are to specify maximum
“radioactive” discharges.
Authority is given to adopt standards
to protect against “radiation” hazards.
The sole reference to
other environmental
issues is that the Board’s hearing shall be
on “the environmental effects of the proposed operation.”
While
this last language justifies the Board, like the
AEC,
in considering other issues
if
it obtains jurisdiction
over a radiation case,
the statute leaves no doubt that radiation
is its primary thrust.
Without radiation,
there is no reason
to single out nuclear facilities.
The same problems of land use,
similar thermal pollution problems,
and additional problems of
air and water pollution are raised by conventional
fossil-fuel
power plants.
We cannot believe that, with radiation stripped
4
—
447
the General Assembly would have required
a Board permit for
nuclear facilities but not for fossil plants with similar and
additional environmental problems.
As held in City of Chicago
Heights
v.
Public Service Co.,
408
Ill. 604, 610—11
(1951):
“where
a portion of a statute or ordinance
is valid and
a portion
invalid,
and
the Court cannot say that the legislative body
would have passed
the enactment with
the invalid portion eliminated,
the entire statute or ordinance
is invalidated.” While this
statement
is not true of the Environmental Protection Act as
a whole without ‘Title VI-A,
it applies squarely to Title VI-A
itself without radiation.
The general severability clause of
section
51 does not blind us
to’ legislative purpose in this
regard.
E.g., Fiorito v.
Jones,
39
Ill.
2d
531,
540—4L (1968).
Without radiation, moreover, requiring
a Board
permit
for nuclear
but not for fossil plants would be so lacking in rationality as
very likely to constitute
a denial of equal protection.
Cf.
Morey v.
Doud,
354 U.S.
457
(1957).
We thus conclude
that with our
loss of authority over
radiation the entire
Ti’tle VI—A falls,
and that we
lack jurisdiction
over this proceeding.
Title VI-A is clearly severable from
the
rest of the statute.
Nor does this result deprive the State of machinery to deal
with other pollution problems that may arise
from the construction
or operation of nuclear power plants.
Just as with fossil—fuel
plants, permits must be obtained from the Agency
for non—
radioactive discharges
to air or water,
and all such discharges
are subject
to Board regulations
and to the statutory prohibitions
against air and water pollution.
Indeed, apart from radiation,
over which the Agency was given no explicit jurisdiction,
the
notion of
a permit from the Board was somewhat anomalous.
Not
only does the general statutory scheme provide for
permits
to be
issued by the Agency rather than by the Board, partly because
the former
is better staffed with technical experts and better
equipped
to marshall opposing considerations;
because of EPA’s
own permit powers the Title VI-A procedure in part required
a
duplication of effort.
The one substantive area that is not covered by other
procedures
and substantive regulations is that of land use as
reflected in the question of siting.
This
is an important area,
but one
that
is not generally within this Board’s authority or
expertise.
See Farmers Against the Illinois Toliway v.
Illinois
Toll Highway Authorit~’,
#
71-159
(Sept.
16,
1971).
The statute
gives us no policy guidelines to follow in determining land use
questions,
and we have no ready body of tradition
to use for
analogy as
in the case of the relatively concrete problems of
air and water pollution.
We cannot allow the tail to wag the
dog by taking jurisdiction under Title VI-A on issues other than
radiation,
for reasons given above.
If some state agency is
to
be given authority to pass on land—use issues, beyond pollution,
4— 448
we urge
that such agency be given legislative standards
to guide
its exercise of judgment.
We
also see no reason why that agency
should be the Pollution Control Board,
and we suggest that some
official be given the duty and ability to gather and present facts
before
the deciding agency.
One of the weaknesses
of Title VI-A
was that it did not create
a true adversary situation,
and there-
fore the Board was
left too often
to decide essentially on the
basis of
the applicant’s own case.
Title VI-A was
a useful and innovative provision.
We
regret
that its central features have been invalidated by the
Supreme Court,
We believe
its short existence was
a productive
one with considerable benefits for the public welfare.
We
have been assured by Edison that the radiation controls we had
required
in the Dresden and Quad-Cities cases, which went be-
yond
the
then requirement of the AEC, will be installed and
operated on the schedules we have set.
We further suspect that
our decisions under Title VI-A,
together with the pioneering
efforts of Minnesota, have had some influence
in persuading the
AEC
to tighten
its own standards.
The experiment has ended, but
it was
not
in vain.
The final question
is
the effect of the disappearance
of
Title VI-A upon the several proceedings pending before us or
previously decided under its provisions.
Commonwealth Edison
asks that we dismiss
its application
in the LaSalle
case,
in
which
no hearings have yet been held.
That disposition seems
incontestably appropriate,
as we lack jurisdiction over the
application.
Inconsistently, Edison asks that we reaffirm our
permits as issued in the Dresden and Quad—Cities cases insofar
as they pertain to non-radiation matters,
and to issue a similarly
limited permit in Zion,
in which hearings have been concluded
and further information requested.
We fail
to see how we
can do
so
in light of Edison’s persuasive arguments
that we
lack
jurisdiction over these proceedings.
Our only course at this
point
is
to vacate
the permits granted and dismiss the permit
applications.
To do otherwise would subvert the statutory
scheme placing authority over non-radioactive discharge permits
in the Agency in the first instance.
The same disposition applies
to
the General Electric
case.
It is clear
that no permit from
this Board
is required or can be issued for the construction or
operation
of the facilities in question.
This disposition does not affect the recently grant-
ed
variance from the Mississippi River thermal standards in
#71-20, Quad Cities,
or such other variances
as may have been
granted in prior proceedings
in these cases before the Board.
Our variance jurisdiction
is plainly granted under other
provisions of the statute.
4
—
449
ORDER
The permits previously granted by
this Board
in ##70-2l,
Commonwealth Edison Co.
(Dresden
3)
and
71-20, Commonwealth
Edison et al.
(Quad-Cities)
are hereby vacated.
The
applications for permits
in ##70-2l;
71—20;
71—238, General
Electric Co.;
71-238, Commonwealth Edison Co.
(Zion), and
71-354,
Commonwealth Edison
Co.
(LaSalle)
are hereby dismissed
for
want of jurisdiction.
The variance granted April
25,
1972
from Mississippi River thermal standards in #71-20
is unaffected
by this
order.
I, Christan Moffett, Clerk
of the Pollution Control Board,
certify that this Board adopted
the above Opinion this
3rd day of May,
by
a vote of 5-0.
4
45U