In examining the federal-state relations in the regulation of atomic energy, it is important to note the history of the various legislative enact­ments concerning atomic energy. It is also instructive to recall the history surrounding development of the atomic energy process itself.

The means by which the energy of the atom can be released evolved from extensive military research and development by the federal govern­ment during World War II. Because of its significant military implications, the process was shrouded in secrecy. All nuclear research activities were conducted by or, pursuant to contract, for the federal government. The states had no role, regulatory or otherwise, in the development and use of this new energy source.

The Atomic Energy Act of 1946. It was under these circumstances that Congress enacted the Atomic Energy Act of 1946 (PL 585, 79th Cong., 60 Stat. 755-775; hereafter cited as the 1946 Act), the nation’s — in fact, the world’s — first such legislation. Under that Act atomic energy remained under an almost airtight government monopoly, but control was transferred from the military establishment to the newly created, civilian Atomic Energy Commission. The Act conferred on the aec pervasive reg­ulatory authority over the possession, use, transfer, import, or export by any person of any of the various atomic energy materials.

Moreover, except in certain enumerated and very limited circum­stances, facilities for the production of fissionable material (e. g., nuclear reactors) could not be owned by anyone, including agencies and depart­ments of the federal government, other than the aec. Under no circum­stances could there be ownership of fissionable materials by anyone other than the aec.

The Act wrought modifications of the patent system unprecedented in American history — certain inventions and discoveries pertaining to atomic energy were removed entirely from the regular patent system, and certain others, though patentable, were subject to compulsory licensing if found by the aec to be affected with the public interest and such licens­ing was “necessary to effectuate the policies and purposes of this Act.”

The Atomic Energy Act of 1954. Following eight years of experi­ence and atomic energy development under the 1946 Act there grew a realization that private enterprise could and should be afforded an oppor­tunity to assume a role in the development of atomic energy for peaceful purposes. Accordingly, Congress enacted the Atomic Energy Act of 1954 (PL 83-703, 68 Stat. 919 [1954], as amended, 42 USC 2011-2281; here­inafter referred to as the 1954 Act). Certain of the rigid controls pre­scribed by the 1946 Act were relaxed at the time of passage of the super­seding 1954 Act; even so, however, it still can be said that, with respect to the assigned areas of responsibility, few other statutes confer upon an ex­ecutive agency the broad powers with which the aec is endowed by the terms of the 1954 Act.

The 1954 Act not only provides for intensive federal regulation of all atomic energy activities, but utterly ignores any recognition of the states’ power to regulate such activities. For example, the patent provisions of the 1954 Act, although somewhat less far-reaching than those under the 1946 Act, represent marked departures from the normal patent system in terms of the controls which they vest in the aec over atomic energy in­ventions and discoveries. The 1946 Act’s virtual prohibition against pri­vate ownership of “utilization facilities” (e. g., nuclear power reactors) was removed wth passage of the 1954 Act.* Significantly, however, it was not until a congressional enactment as recent as 1964 that private owner­ship of the fuels for such facilities — such as special nuclear material— became permissible, t Congress left with the aec broad authority to impose a comprehensive and detailed regulatory control scheme upon the posses­sion, use, transfer, export, import, and so on of the various atomic energy materials (see 1954 Act, Secs. 53, 62, and 81). Notable too was conspic­uous silence on the role of the states in the regulation of these materials. Except for one limited provision (1954 Act, Sec. 271; amended by PL 89-135, 79 Stat. 551 [1965]), not relevant to radiological considerations, no notice was taken of a role for the states in the regulation of nuclear power reactors.

* The terms production facility and utilization facility are defined in Sec. 11 v. and cc. of the 1954 Act. Except for certain military activities involving the Department of Defense, no person within the United States may transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, use, import, or export any nuclear reactor, nuclear fuels reprocessing facility, fission product conversion and encapsulation plant, or other utilization or production facility except under and in accordance with a license issued by the aec pursuant to Sec. 103 or 104. (1954 Act, Sec. 101.)

t PL 88-487, 78 Stat. 604 (1964), the so-called Private Ownership of Special Nu­clear Materials Act. The term special nuclear material is defined in Sec. 11 aa. of the 1954 Act. Essentially, it refers to Pu, ““U, and mU.

1957 Proposal Rejected. As atomic industrial activity and the num­ber of trained personnel grew in the years following passage of the 1954 Act, and as classification restrictions on atomic information were lifted, some states began to develop an interest in applying their general health and safety powers to the atomic activities being carried on within their borders. It was in this context that the aec in 1957 forwarded to the Con­gress proposed legislation which, if enacted, would have authorized con­current radiation safety standards to be enforced by the states where such standards were not in conflict with those of the aec (see Joint Committee on Atomic Energy, Selected Materials on Federal-State Cooperation in the Atomic Energy Field [March 1959], p. 18).

The proposed bill provided that the states might adopt, inspect against, and enforce radiation standards for the protection of health and safety in areas regulated by the aec. In other words, the bill proposed by the aec in 1957 would have permitted dual regulation by both federal and state governments of nuclear reactors, other utilization or production fa­cilities, and the potential radiation hazards associated with the various atomic energy materials.*

“Cooperation with States” —1959. After extensive hearings, during which witnesses of the various states and the Council of State Govern­ments played prominent roles, the approach to the federal-state question originally suggested by the aec was unanimously rejected by the 18-man Joint Committee on Atomic Energy. However, the Committee was per­suaded, and on the basis of its recommendation the Congress was per­suaded, of the advisability of legislation offering to the states a limited role and thereby clarifying the respective roles of the aec and the states under the Atomic Energy Act. For that primary purpose Congress added Sec­tion 274, “Cooperation with States,” to the Act in 1959 (PL 86-373, 73 Stat. 688 [1959]).

Under Section 274 the aec may relinquish to states, on a state-by­state basis, certain of its authority to regulate the use of reactor-produced isotopes, the source materials uranium and thorium, and small quantities

* Two related bills, one sponsored by Senator Clinton P. Anderson and the other by Congressman Carl T. Durham, were introduced at this time. Both proposed to amend the Atomic Energy Act of 1954 with respect to federal-state cooperation. S. 4298 (84th Cong., 2nd Sess.) would have authorized the aec to enter into compacts or agreements “delineating the separate responsibilities” of the aec and the states with respect to the health and safety aspects of activities licensed under the Act, and to transfer to states such regulatory authority as it finds them competent to assume. H. R. 8676 (84th Cong., 2nd Sess.) would have “authorized and directed” the aec to relinquish, within six months after receiving such certification, jurisdiction over health and safety in any or all atomic energy areas in which a governor certified that his state had an agency competent to assume such responsibility.

(quantities not sufficient to form a critical mass sufficient to initiate the fission process) of special nuclear materials. Collectively, such materials are referred to as agreement materials.

Before such an agreement may be entered into with any prospective agreement state that state’s governor must make certain certifications and the aec must make certain findings. Specifically, the governor must certify that the state has an adequate regulatory program for “materials within the state covered by the agreement” and that the state desires to assume such regulatory responsibilities (1954 Act, Sec. 274 d. [1]). The aec, in turn, must find that the state’s regulatory program is adequate to protect the public health and safety and is compatible with the aec’s regulatory program for such materials (1954 Act, Sec. 274 d. [2]).

Section 274 specifically reserves certain areas to the aec. It clearly provides that the aec may not enter into an agreement with any state un­der which such state would assume the regulation of the construction and operation of nuclear reactors, the export or import of nuclear materials or facilities, or the ocean disposal of radioactive wastes (1954 Act, Sec. 274 c.). Further, the legislative history of Section 274 makes it abundantly clear that the discharge of radioactive effluents from such nuclear facili­ties as reactors and reprocessing plants, and the transportation of nuclear fuel and irradiated fuel elements, are not to be included within the authori­ty transferred to a state by virtue of a Section 274 agreement (see Joint Committee on Atomic Energy, Hearings on Federal State Relationships in the Atomic Field, 86th Cong., IstSess. [1959], pp. 291, 297, 298).

Preemption Intended by Congress. Thus, if any shadow of a doubt existed before 1959 that Congress intended to preempt the regulation of atomic activities insofar as radiation protection is concerned, the addition of Section 274 to the Act should have dispelled that doubt.

The Joint Committee’s reports (H. Rep. 1125, S. Rep. 870, 86th Cong., 1st Sess. [1959]) which accompanied this legislation were unequiv­ocal. The Committee said that it was the intention of the proposed law to clarify the responsibilities of the federal government, on the one hand, and state and local governments, on the other, with respect to the regulation of by-product, source, and special nuclear materials in order to protect the public’s health and safety from radiation hazards. The Committee’s report added (Sec. 9): “It is not intended to leave any room for the exercise of dual or concurrent jurisdiction by States to control radiation hazards by regulating byproduct, source, or special nuclear materials. The intent is to have the material regulated and licensed either by the Commission [aec], or by the State and local governments, but not by both. The bill is in­tended to encourage States to increase their knowledge and capacities, and to enter into agreements to assume regulatory responsibilities over such materials.”

Based on the 1959 amendment and its legislative history, several points about the intent of Congress emerge as being virtually indisputable: (a) Under the Atomic Energy Act as it is presently constituted, there is no room for the exercise of dual or concurrent jurisdiction by states to control radiation hazards by regulating by-product, source, or special nu­clear materials, (b) Such materials are to be regulated and licensed either by the aec or by state and local governments, but not by both, (c) Cer­tain, but not all, of the aec’s regulatory responsibilities may be transferred to interested and qualified states whose regulatory programs are compati­ble with the aec’s and adequate to protect the public’s health and safety. And, (d) specifically included within the regulatory responsibilities that are at all times to be reserved to the aec, vis-a-vis the states, is the regula­tion of the construction and operation of nuclear reactors, including the discharge of radioactive effluents from such facilities.

Thus, to sum up, the comprehensive controls over the various nu­clear materials, devices (including weapons), and facilities which the 1954 Act and its 1946 precursor lodged in the aec; the paramount na­tional interest in this highly sensitive and important field; the significant implications of these materials, devices, and facilities to public health and safety and the common defense and security; and the utter silence of Con­gress in 1946 and 1954 on the role, if any, of the states in regulating the potential radiological hazards of source, by-product, and special nuclear materials — all of these quite clearly evidence a legislative intent to “oc­cupy the field” to the exclusion of state regulation. If any further evidence were required of congressional intention to preempt this field, the legisla­tive history of Section 274 provides it in abundance — indeed, fairly com­pels this conclusion.

Legal Authorities and Courts Support Preemption. This legal opin­ion is not merely my view, or that of the aec’s general counsel, or that of the Joint Committee’s staff counsel. Virtually every court, legal scholar, and state attorney general to consider the question of preemption in the context of atomic energy has concluded that Congress has preempted sub­stantially the whole field to the exclusion of the states, except only state regulation pursuant to an agreement as provided in Section 274. The list includes, but is not limited to, the Attorney General of Michigan, the At­torney General of South Dakota, the New York Bar Association’s Com­mittee on Atomic Energy, the Dean of the Harvard Law School — and even Richard A. Emerick, Special Assistant Attorney General of the State of Minnesota, who reached the same conclusion and so advised the

Minnesota Pollution Control Agency well before it took final action on the Northern States Power Company’s application for a waste disposal permit.*

The following quotation from the report of the Atomic Energy Com­mittee of the New York State Bar Association (pp. 4—5) is especially pertinent: “While the United States Supreme Court has never been re­quired to determine whether the Atomic Energy Act has pre-empted the regulation of atomic activities for radiation protection purposes it seems clear that Congress intended so to pre-empt, if not by the provisions of the 1954 Act, then, certainly by means of the federal-state amendment in 1959. In the latter amendment, Congress came perhaps as close as it has ever come to stating expressly that a regulatory area has been pre-empted.”

As noted, the Supreme Court of the United States has never specifi­cally ruled on the question of preemption under the Atomic Energy Act. However, the two state courts before which the question has been raised both agreed that such preemption had occurred.! In addition, the Na­tional Association of Attorneys General has reviewed the law and the proposed transfer of regulatory responsibilities from the aec to the states, and has endorsed the program. On April 25, 1962, the Association adopted a resolution favoring transfer of regulatory responsibilities, read­ing in part: “Be it resolved. . . that all states are urged to accelerate the adoption of such legislation and the development of such programs as will permit the states to enter into agreements with the Atomic Energy Commission pursuant to PL 86-373.”

I think it highly doubtful that any state’s attorney general would en­dorse such a program unless he were confident that the responsibility in — * The opinion of the aec’s General Counsel is on record in 34 Fed. Reg. 7273 (May 3, 1969) (and see 10 CFR Pt. 8, Sec. 8.4); Joint Committee on Atomic Energy, Se­lected Materials on Environmental Effects of Producing Electric Power (August 1969), p. 36; Michigan Opinions of the Attorney General, No. 4073, October 31, 1962; South Dakota Attorney General, Official Opinion, July 23, 1964; Committee on Atomic Energy, New York State Bar Association, State Jurisdiction to Regulate Atomic Activities: Some Key Questions (July 12, 1963); David F. Cavers, “State Responsibility in the Regulation of Atomic Reactors,” Kentucky Law Journal, 1961, 50, 29; Richard A. Emerick, “Memorandum of Law on State-Federal Control over Nuclear Facilities; the Atomic Energy Act of 1954 and Amendments” (January 31, 1969), set forth in Hearings on AEC Authorizing Legislation Fiscal Year 1970 be­fore the Joint Committee on Atomic Energy, 91st Cong., 1st Sess. (1969), p. 936. t Boswell v. City of Long Beach, Commerce Clearing House Atomic Energy Law Reporter, 1960, 1, 4045 (California Superior Court, 1960); Northern California Association to Preserve Bodega Head and Harbor, Inc. v. Public Utilities Commis­sion (respondent, Pacific Gas and Electric Company, real party in interest, Supreme Court of California), California Reporter, 1964, 37, 432; Pacific Reporter (2nd ser.), 1964,390,200.

deed rested with the federal government and that it could be transferred to the states.

To the roll of nationally recognized groups and associations which have endorsed a program of limited state assumption of atomic energy regulatory responsibilities from the federal government might be added the American Bar Association, the National Governors’ Conference of 1962, the Council of State Governments, and the Chamber of Commerce of the United States. I am unaware that any of these groups expressed any reservations or concern that a constitutional issue exists in this connec­tion.

To the foregoing should be added the list of twenty-one states which have assumed the regulatory role contemplated for them under the 1954 Act, thereby recognizing both the principle and fact of federal preemption: Alabama, Arizona, Arkansas, California, Colorado, Florida, Idaho, Kan­sas, Kentucky, Louisiana, Mississippi, Nebraska, New Hampshire, New York, North Carolina, North Dakota, Oregon, South Carolina, Tennessee, Texas, and Washington.

Argument has been made that federal preemption concerns only the high areas of emission releases and leaves the lower still to the states. This is erroneous. Preemption when it occurs in any area is total, and the courts have so ruled consistently in numerous cases arising since 1820.

Federal Water Pollution Control Act. There remains the question whether the Federal Water Pollution Control Act (PL 87-88, 70 Stat. 498 [1956], 33 USC 466 et seq.; hereafter referred to as fwpc Act) has the effect of vesting in the states any authority, by their participation in the setting of water quality standards, over the release of radioactive efflu­ents, which had been preempted to the federal government by the 1954 Act. The terms of the fwpc Act, of themselves, do not speak expressly to the preemption question, although Section 466 c. does provide that noth­ing in the Act “shall be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.” But it appears quite clear that the fwpc Act does not affect the aec’s preempted jurisdiction over radioactive efflu­ents. Nowhere does the fwpc Act speak in terms of a grant of authority to the states to set water quality standards.

On the other hand, the Atomic Energy Act of 1954 clearly reserves to the federal government the field of regulation of atomic energy, except as that jurisdiction has been relinquished to the states under agreements entered into pursuant to Section 274. By reason of the preemption to the aec of jurisdiction over regulation of by-product, source, and special nu­clear materials, states have no jurisdiction to adopt standards relative to such materials, including those contained in effluents, in the absence of an agreement with the aec. Those states which have entered into agreements are, by the terms of the agreements, obligated to use their best efforts to assure that their regulatory programs continue to be compatible with the aec’s program. It should be noted that Section 274 of the Atomic Energy Act of 1954 also establishes the Federal Radiation Council, and provides for its functions to include guidance for federal agencies in the formulation of radiation standards and in the establishment and execution of programs of cooperation with states (see pp. 148-149 below).

Finally, if, contrary to the view expressed above, the fwpc Act of 1965 could be construed as a grant of authority to the states, this together with the fact that such authority was granted subsequent to enactment of the Atomic Energy Act of 1954 and Section 274 thereof in 1959 would in no way disturb the foregoing conclusions.

It is a recognized principle of statutory construction that subsequent legislation is not presumed to effectuate an amendment of a law not under consideration, in the absence of an express amendment, unless the terms of the subsequent act are so inconsistent with the provisions of the prior law that they cannot stand together.* No such incompatibility or incon­sistency would appear to exist here as to require invocation of the excep­tion to this general rule of statutory construction.