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Illinois v. Kerr-McGee Corp.

Citation: 12 ELR 20623
No. Nos. 81-1110, -1152, 677 F.2d 571/(7th Cir., 05/04/1982)

The Seventh Circuit Court of Appeals, reversing two district court opinions, holds that the Atomic Energy Act (AEA) confers exclusive jurisdiction upon the Nuclear Regulatory Commission (NRC) to regulate radiation hazards but preserves state and local authority to regulate non-radiation hazards.The court first rules that the State of Illinois' case against Kerr-McGee was improperly removed to federal court. Rejecting Defendant's argument that by raising the issue of preemption, it has created a federal question, the court rules that the issue of federal preemption is a defense to state law claims, rather than a part of the claim itself. Therefore, the case is remanded to the district court with instructions to remand it to the state court. With respect to the case brought by the City of West Chicago, the court first examines the AEA to determine the nature and scope of the regulatory powers left to the states. The court reads the Act and its legislative history to evince a clear congressional intent to preempt state regulatory powers in the area of radiation hazards only, and to preserve the powers of the states to regulate non-radiation hazards. The court remands the case to the district court for a determination as to the nature of the materials at the off-site locations and the dates when dumping occurred, in order to determine whether the city's nuisance action has been preempted by federal law.

Counsel for Plaintiffs
Ann Rapkin
Environmental Control Division
Office of the Attorney General
188 W. Randolph St., Chicago IL 60601
(312) 793-2491

Counsel for Defendant
R. R. Wilfong
Kerr-McGee Corp.
P.O. Box 25861, Oklahoma City OK 73125
(405) 270-2847

Before SPRECHER and WOOD, Circuit Judges, and BROWN, Senior District Judge.*