Plaintiffs remaining counts are not supported by well-pleaded allegations and, at most, restate their unavailing NEPA allegations. Plaintiffs’ fourth cause of action alleges that, by “failing to comply with NEPA,” DOE violated the Atomic Energy Act, 42 U.S.C. § 2011, and the Department of Energy Organization Act, 42 U.S.C. § 7112. Compl.

ARGUMENT A. NRC Exclusively and Comprehensively Regulates the Operation of Nuclear Facilities and Continuously Assesses New Information. In accordance with the Atomic Energy Act ("AEA"), 42 U.S.C. § 2011 et seq, NRC has exclusive authority for the licensing and regulation of the radiological safety of nuclear power plants. See, e.g., Pac. Gas & Electric Co. v. State Energy Res.

The Atomic Energy Act was intended to foster “the development, use, and control of atomic energy.” 42 U.S.C. §§ 2011, 2012. Review of a proposed license under the CZMA, however, focuses on consistency with the host state’s coastal policies – a matter largely outside the NRC’s area of emphasis, but uniquely the concern of NYSDOS, the state agency designated to administer New York’s CMP under 16 U.S.C. § 1455(d)(6).

1:16-cv-00391-JMC Date Filed 04/25/16 Entry Number 17 Page 9 of 38 3 BACKGROUND I. The Department of Energy’s and National Nuclear Security Administration’s Authority for Regulating and Handling Nuclear Material The Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2011 et seq., “established a comprehensive regulatory scheme for military and domestic nuclear energy.” Natural Resources Defense Council v. Abraham (“NRDC”), 388 F.3d 701, 704 (9th Cir. 2004) (quotation marks omitted); see also Siegel v. Atomic Energy Comm’n, 400 F.2d 778, 783 (D.C. Cir. 1968) (noting that in enacting the Atomic Energy Act of 1954, Congress “enact[ed] a regulatory scheme which is virtually unique in the degree to which broad responsibility is reposed in the administering agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives”).

Nothing in this Consent Order shall be construed as relieving the Respondents of their obligation to comply with applicable law. III.K.2 Atomic Energy Act The Atomic Energy Act (AEA), as amended, 42 U.S.C. §§ 2011 et seq., and the Department of Energy Organization Act, 42 U.S.C. §§ 7101 et seq., and their implementing regulations, orders and directives, require DOE to protect the public health and safety, and, to this end, exclusively authorize DOE to regulate nuclear safety at its facilities. DOE’s authority to regulate nuclear safety is governed by the provisions of 10 C.F.R. Parts 830 through 835.

endants’ Joint Motion to Compel Page 7 Tatum v. Pactiv Corporation, et al., Civil Action No. 2:06cv83-LES In the United States District Court For the Middle District of Alabama, Northern Division The term “release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant), but excludes (A) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons, (B) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine, (C) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954 [42 USCS §§ 2011 et seq.], if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under section 170 of such Act [42 USCS §§ 2210], or, for the purposes of section 104 of this title [42 USCS § 9604] or any other response action, any release of source byproduct, or special nuclear material from any processing site designated under section 102(a)(1) or 302(a) of the Uranium Mill Tailings Radiation Control Act of 1978 [42 USCS § 7912(a) or 7942(a)], and (D) the normal application of fertilizer. The term “environment” is defined by 42 U.S.C. § 9601(8) as follows: The term “environment” means (A) the navigable waters, the waters of the contiguous zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under the Magnuson-Stevens Fishery Conservation and Management Act [16 USCS §§ 1801 et seq.], and (B) any other surface water, ground water, drinking water s

The term “release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the Case 2:06-cv-00083-LES-CSC Document 21 Filed 04/24/2006 Page 8 of 29 Page 9 of 29 environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant), but excludes (A) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons, (B) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine, (C) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954 [42 USCS §§ 2011 et seq.], if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under section 170 of such Act [42 USCS §§ 2210], or, for the purposes of section 104 of this title [42 USCS § 9604] or any other response action, any release of source byproduct, or special nuclear material from any processing site designated under section 102(a)(1) or 302(a) of the Uranium Mill Tailings Radiation Control Act of 1978 [42 USCS § 7912(a) or 7942(a)], and (D) the normal application of fertilizer. The term “environment” is defined by 42 U.S.C. § 9601(8) as follows: The term “environment” means (A) the navigable waters, the waters of the contiguous zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under the Magnuson-Stevens Fishery Conservation and Management Act [16 USCS §§ 1801 et seq.], and (B) any other surface water, ground water, drinking water supply, land