ML20127L004
| ML20127L004 | |
| Person / Time | |
|---|---|
| Site: | Monticello  |
| Issue date: | 09/02/1969 |
| From: | Hennessey J US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Johnson, Ramey, Seaborg US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 9211230374 | |
| Download: ML20127L004 (4) | |
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UNITED STATES f
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L:=1.:sionar Johnson Jo=issionar Thompson
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Co=issioner Larson KIC':LLO a:UCLEAR gel ERATI!!G STAT 101 ; SUIT C0:UESTII;G STATE REGIAATIO ; 0F RADIOLOGICAL SAFETY 1%TT RS Ja..ugust 26,1969, ::orthern States Pever Company filed suit in tha
- innesota Fe6eral District Court scehing a judicial declaration that the State of Minnesota and its Pollution Control Agency (PC's) lack
- utc.ority to regulate the utility's activitics "with respect to the construction and operatien of nuclear reactors and the discharge of rcdioactive vastes therefro:a". The complaint, uhich nancs the Stato and PCA as defendants, asks the court to declarc invalid and enjoin cnforcenent of the "Special Conditions" contained in the vaste disposal parnit issued by the PCA for the Monticello liuclear Generating Plant.
As described in the compicint, these permit conditions purport to regu-icte 'tha nathods of operation of said plant," set " limitations upon the level of radicactive liquid and gaseous discharges," and provide lor "machods of monitoring of said radioactive discharges".
The complaint asserts, as the basis for the reouested relief, that cnder :he Atomic Energy Act the AEC is charged uitn the duty of regulating the construction and operatien of nucicar pouer plants and the diccharges ai radioactive effluents :hcrefrca; and that, by virtue of said Act nna the :?upranacy Clau.se of the Constitution, this duty is possessed exclusively by :he AEC regardless of any contrary provision of State law.
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plaint goes on to declare that the limitations and provisions in the PCA vaste dispoon1 permit are in conflict with those imposed by the AEC; that an attempt to comply vith the PCA directive would recuire substantial alterations in the AEC-approved design of the Monticello plant; that a delay of tuo years in co =cacement of plant operation (now planned for early 1970) uould be necessitated; and that such alterations - which Rec'd Off. Dir. of Reg.
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9211230374 690902 PDR ADDCK 05000263 A
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' To the Commission would "rcquire the expenditure of several millions of dollars" -
would adversely affect plant fuel economics and power system reliability.
- m. June 4, attorneys from this office met vith Assi~ctant Attorney 7eneral
..cc!wl;haus (who heads the Civil Divicion of the Department of Justice) to orief tha latter on AEC'c interest in the then impending litigation, anc to discuss possibic Oovernmen: participation in the judicial consid-aration of the underlying pracmption question. Mr. Rucholshaus racognized tna cubstantial AEC interest in the outcome of the prospective Minnesota 1 tigation; and he agreed, in principic, to Government participation therein (through the Department of Justice), the nature of the participa-tion to be decided upon once judicial proceedings had been commenced.
In my opinion, the preferred manner for Government participation in the 'stility's ?cdcral court suit is by intervention en the part of the United States as a party.
Pcrticipation in this manner uould demonstrato une atrong Commission interest in the proper judicial resolution of the prceuption question; and, from a procedural standpoint, intervention as a party vould permit the Government to participate fully in the framing and resolution of the issues before the court and afford the Government the appeal rights of a party if an appeal became necessary.
I propose, if the Commission agrees, to recommend the intervention route to the Department of Justice by a letter along the lines of that attached. The letter would also advise the Department that the utility plans a separate State court appesi of the restrictive conditions in the waste disposal permit (such an appeal was expected to be filed last ucek and must be filed by September 2) and that ue wish to discuss possible Government participation in the State court suit. My present view is that participation as a party in the State court proceeding may neither bc necessary nor desirabic and that presentation of the Government's position through an amicus appearance (which allows the filing of a brief and, possibly, oral argument) would be the better course.
I uould like to discuss this matter with the Co= mission at an early"
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1EfeiidaEio_n meet 1Eg'.-
- 6. HJJav Joseph F. Hennessey g
3 General Counscl-7 Att.
Proposed ltr to Justice-1 cc: Secretary (2)
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Honorable William D. Ruckelshaus j
Assistant Attorney Concral Civil Division Dopartment of Justico Attention:
Carl Eardicy, Esquire i.
Deputy Assistant Attorney General Re: Northern States Power comonny v. State of i
Minnesota et al. (U.S.D.C. Minn., Third District)
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Dear Mr. Ruckcishaus:
On June 4,1969, members of my office met with you and Deputy Assistant Attorney General Eardicy to discuss possible Government partici-i pation in impending private litigation involving the question of whccher the State of tunnesota, through its Pollution control Agency, has authority to regulate the dischargo of radioactive effluents from nuclear power plants and the operation of such plants relative thereto. You will recall, it J
f has been the consistent position of the Atomic' Energy Commission - for reasons set forth and supported in the packagn of background material we furnished Mr. Eardicy - that the Atomic Energy Act gives the AEC exclusive regulatory jurisdiction as respects the radiological safety of nuclear power plants.
.Our attorneys stated at the conclusion of the June 4 meeting tha t we would again contact the Department once suit had been brought by the private utility, Northern States Power Company, whose nucicar power plant has been l
the subject of State regulatory action in the area of radiological safety, i
On August 26, 1969, Northern States filed an action in the-U S. District I
Court for the District of Minnesota secking a declaratory judgment on the -
subject Federal preemption question. The complaint in that suit, a copy; of which we earlier sent to Mr. Eardicy, is enclosed herewith, t
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1 We remain of the view that the Government should participate in this s:
l litigation cince the basic issue raised involves a substantial Federal 1
l question which is central to the scheme established by the Atomic Energy J
Act for the licensing and regulation of nucicar power reactors. We are also of the view that such participation should be effected through intervention by the United States as a party to the Federal court action so that the l
Government may play a full roic in the judicial resolution of this question, i
f which is a matter of first impression in the Federal courts.
l Mambers of my staff and I would like to meet with cogniaant =cmbers j _.
of your staff at an early dato to discuss the matter of the Government's i
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participation in this declaratory judgment suit and the steps which should be taken in that regard. By the time of such meeting, we hope to have avail-f able a copy of the complaint which the utility has advised us it plans to file, in a separate action, in the State District Court appealing the restrie-tions imposed in the permit issued by the Minnesota Pollution Control Agency.
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i We vauld like then to consult with.you also as to the possibility of Govern-I ment participation in the State court action, i
Sincerely, l
...y.- - -- - "A Joseph F. Hennessey l
- General Counsel l
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Cy of complaint
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