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Concerned Citizens of Nebraska v. NRC

ELR Citation: 22 ELR 21334
Nos. No. 91-2784, 970 F.2d 421/(8th Cir., 07/06/1992)

In a suit raising constitutional challenges to the siting of a regional low-level radioactive waste disposal facility, the court holds that freedom from environmental releases of nonnatural radiation is not a fundamental, unenumerated right protected by the Ninth Amendment, and differences in the federal and state radioactive waste classification schemes do not violate the Fifth Amendment's guarantee of equal protection. The court first holds that the applicable state laws do not violate the Supremacy Clause by conflicting with federal directives that would impose a zero-release standard and would not permit the disposal of mixed waste. The court further holds that the federal and state radioactive waste classification schemes, which distinguish between various classes of waste and impose different disposal requirements for each class, are rational and do not violate the Fifth Amendment's guarantee of equal protection. The court holds that the district court did not err in dismissing the organization's Fifth Amendment equal protection claim that disparate treatment results because the exposure to radiation for persons living next to low-level waste facilities is higher than exposure for those living next to high-level facilities. In the absence of a fundamental right, the distinction between disposal requirements for low-level and high-level radioactive wastes need be supported only by an articulable rational basis. The court holds that while the Ninth Amendment accords constitutional protection to fundamental, unenumerated rights, the right to be free of nonnatural radiation is not one of them.

Counsel for Appellants
Charles D. Hahn
1905 N St., Auburn NE 68305
(402) 274-3860

Counsel for Appellees
Sally R. Johnson
U.S. Attorney's Office
100 Centennial Mall North, 487 Federal Bldg., Lincoln NE 68508
(402) 437-5241

Beam, J. (before Gibson and Hungate,* JJ.)