Attorney General: The Honorable James T. Fleming, Department of Consumer Protection, 1999-004 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

April 16, 1999

The Honorable James T. Fleming
Department of Consumer Protection
165 Capitol Avenue
Hartford, CT 06106

Dear Mr. Fleming:

You have asked whether the state, through the Department of Consumer Protection (DCP) and the Occupational trade licensing boards within its jurisdiction, is preempted by federal law from imposing its licensing requirements for contract personnel working at a nuclear power plant facility in Connecticut. While the federal government exercises extensive jurisdiction over the safety operations of nuclear power facilities, that regulation does not oust the State from requiring such workers to be licensed where the tasks they perform would otherwise require an appropriate license from the DCP.

State law requires that DCP, through the occupational boards, license persons who practice certain crafts.1 Conn. Gen. Stat. 20-334(b). The State's purposes for licensing these occupations are a hybrid of consumer protection and public safety interests. Consumers of these services are assured of a certain level of competency and safety, and unscrupulous practitioners of a craft are culled from the market. (Id. at 20-334(c)) In short, the State, through its police powers, restricts certain occupations to licensed practitioners to prevent incompetent work from being performed and to preclude those who are unprincipled from having access to the market. Oppelt v. Mayo, 26 Conn. Supp. 329; 223 A.2d 47, 48 (Super. Ct. 1996).

Nuclear power plants are extensively regulated by the federal government under the Atomic Energy Act, 42 U.S.C.2011 et seq. (AEA), chiefly through the Nuclear Regulatory Commission (NRC). State regulation of operation and safety at such plants is generally preempted. Pacific Gas and Electric v. Energy Resources Comm'n., 461 U.S. 190,103 S.Ct. 1713, 75 L. Ed 2d 752 (1983).

Federal preemption of state law can be expressed or implied.

"[A] federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively... or when state law is in actual conflict with federal law. [The United States Supreme Court has] found implied conflict preemption where it is impossible for a private party to comply with both state and federal requirements... or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (citations omitted; internal quotation marks omitted) Dowling v. Slotnick, 244 Conn. 781, 795, 712 A.2d 396, 405 (1998), citing Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S. Ct. 1483, 131 L. Ed. 2d 385; Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S. Ct 615, 78 L.Ed. 443 (1984); Kenny v. Kenny, 226 Conn. 219, 224, 627 A. 2d 426 (1993), Times Mirror Co. v. Division of Public Utility Control, 192 Conn. 506, 510-11, 473 A. 2d 768 (1984).

There is no express preemption in federal law of a state's right to enforce its occupational licensing laws and, as the following discussion demonstrates, there is not any implied preemption either.

Despite the breadth of federal regulation of nuclear power plants, not every state law that may affect the operations at such plants is preempted. Referring to the federal preemption under the AEA, the United States Supreme Court stated, "for a state law to fall within the preempted zone, it must have some direct and substantial effect on the decisions made by those who build or operate nuclear facilities concerning radiological safety levels." English v. General Electric, 496 U.S. 72, 79, 110 S. Ct. 2270,110 L.Ed.2d 65 (1990). Connecticut's scheme of occupational licensing has no effect on the NRC's requirements for building, repairing or operating a nuclear plant, and occupational licensing is a well-established State concern. There is a significant presumption against preemption in such cases. "There is a strong presumption against federal preemption of state and local legislation and this presumption is especially strong in areas traditionally occupied by the states." Dowling v. Slotnik, 244 Conn. 781, 796, 712 A.2d 396, 405(1998) (citing English v. General Electric supra.)

Connecticut's occupational licensing laws present no conflict with the AEA or regulations promulgated under it by the NRC. Cf. CNG v. DCP, 43 Conn. App. 196, 201-02, 682 A.2d 547, 550 (1996) (DCP licensing not inconsistent or conflicting with public utility regulation.) The State has always enforced its occupational licensing laws at Connecticut's nuclear power plants and the NRC has never found it to be a problem. Requiring occupational licenses is not an obstacle to the NRC's radiological and operational regulation. The NRC's Millstone Assessment Team staff apparently concur that the need to have State-licensed craft personnel does not implicate issues of federal regulatory concern but rather is a matter that falls within state jurisdiction.2

Since there is no expressed or implied preemption of Connecticut's occupational licensing laws, the DCP has jurisdiction to license personnel at a Connecticut nuclear power facility in accordance with the State's statutes and regulations.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Robert S. Golden, Jr.
Assistant Attorney General

RB:RSG:jks


1 Not every skilled task requires a license. Only those which are prescribed by regulation or statute require licenses. Some work which is highly specialized may be exempted or issued special limited licenses.

2 Letter from Wayne D. Lanning, Director of Millstone Assessment Team to Mr. Joseph H. Besade, May 15, 1996.


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