concurring in part and dissenting in part.
I agree with the analysis of the majority in section II of its opinion, in which it reasons that the district court order granting summary judgment on that portion of the complaint which seeks an injunction requiring Kerr-McGee to remove wastes from the West Chicago site is appealable, and that therefore this court has jurisdiction.
However, the majority finds preemption much too easily in section III. We are faced here with a situation in which legitimate concerns of the states and local residents may be ignored by the Nuclear Regulatory Commission. In this whole field Congress has been very reluctant to override state prerogatives. I do not think the courts should crash through the tangled thicket of waste disposal, and in the process upset the balance achieved by Congress between state and federal law.1
It is important, I believe, to begin by recognizing that this is not an action to force reduction in levels of radiological hazards as such. As the majority recognizes, the plaintiffs’ action is based on state law concerning pollution standards, building codes and public nuisances. The majority also concedes that none of these fields of *1244state regulation are preempted by the Atomic Energy Act. Further, since the suit is based on these grounds, I think Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), and Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), not to mention this court’s recent decision in Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571 (7th Cir.), cert. denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618 (1982), are more apposite than Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir.1971), summarily aff'd, 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972). Indeed, it seems to me that Silkwood requires that we find no preemption here.
It is also important that we recognize, as the district court apparently did not, the nature of the proceedings presently pending before the NRC. See generally Kerr-McGee App. 22-32. Kerr-McGee is required to seek amendment of the license under which it operates the West Chicago site. It is presently asking the permission of the NRC to undertake its preferred course of disposal of the wastes in question, on-site encapsulation. Even if the NRC approves that application, it will only be permission for Kerr-McGee to so dispose of the wastes. Kerr-McGee will not be required to do so, and there appears to be nothing other than Kerr-McGee’s economic interest which prevents it from applying to the NRC for permission to dispose of the wastes in a manner which complies with both federal and state law.
There is little doubt that state regulation of the radiation hazards associated with nuclear power generation is preempted by federal regulation, Northern States Power, 447 F.2d 1143, because “the Federal Government has occupied the entire field of nuclear safety concerns,” Pacific Gas & Electric, 461 U.S. at 212, 103 S.Ct. at 1726, see Silkwood, 104 S.Ct. at 617. Cf Pacific Gas & Electric, 461 U.S. at 205, 103 S.Ct. at 1722 (state regulation of “radiological safety aspects involved in the construction and operation of a nuclear plant” is preempted); id. at 223-29, 103 S.Ct. at 1732-35 (Blackmun, J. concurring) (state safety regulation not wholly preempted). However, Congress intended to preempt only the regulation of radiological hazards. Pacific Legal Foundation v. State Energy Resources Conservation and Development Commission, 659 F.2d 903, 923 (9th Cir. 1981), aff'd sub nom. Pacific Gas & Electric, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983); Northern States Power, 447 F.2d at 1149-50. See also Pacific Legal Foundation, 659 F.2d at 923 n. 32 (collecting cases holding same). “[T]he States exercise their traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land use, ratemaking, and the like.” Pacific Gas & Electric, 461 U.S. at 212, 103 S.Ct. at 1726 (emphasis supplied; footnote omitted). This is in accord with the language of section 274(k) of the Atomic Energy Act, which permits the states “to regulate activities for purposes other than protection against radiation hazards.” 42 U.S.C. § 2021(k). See Pacific Gas & Electric, 461 U.S. at 210, 103 S.Ct. at 1725.
The purpose of the state regulation is critical in determining whether the regulation is preempted. Pacific Gas & Electric, 461 U.S. at 213-16, 103 S.Ct. at 1727-28; Silkwood, 104 S.Ct. at 631 (Blackmun, J. dissenting). There is no claim here that the purpose of Illinois’ nuisance law, building codes and pollution standards is to regulate the radiological hazards or nuclear safety aspects of nuclear fuel processing. Therefore these are not preempted by the Atomic Energy Act and the subsequent federal regulation. Pacific Gas & Electric, 461 U.S. at 216, 103 S.Ct. at 1728 (“[W]e accept California’s avowed economic purpose as the rationale for enacting § 25524.2. Accordingly, the statute lies outside the occupied field of nuclear safety regulation.” (footnote omitted)). The fact that enforcement of these state laws may impact on how Kerr-McGee carries out its business at the West Chicago site is not conclusive that they are preempted. Indeed, the Supreme Court has twice in the *1245past two terms allowed state regulation which has directly impacted on aspects of the nuclear industry that are regulated by the federal government.
In Pacific Gas & Electric v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), the Court held that a California statute which prohibited the construction of any nuclear generating plants until a method for disposal of radioactive wastes was approved by the NRC was not preempted. The statute was based on the supposed possible economic unviability of nuclear generation of electricity unless such a disposal method was developed. Although the statute was based on economic considerations, which have long been regulated by the states, the statute gave the state an effective veto over the construction of any nuclear generating stations within its borders until certain safety issues were dealt with by the federal government. Since the purpose of the state statute was economic not radiation safety, it was not preempted, 461 U.S. at 216, 103 S.Ct. at 1728, even though it had an effect on the radiation hazards to which the people of California were exposed.
Just last year the court went even further when it decided Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). In Silkwood the Court upheld a state-authorized award of punitive damages for injuries caused by nuclear hazards even though the NRC was vested with exclusive regulatory authority over the safety aspects of nuclear development and there had been no significant violation of the federal safety standards. 104 S.Ct. at 619, 626. Punitive damage awards have a clear impact on federal safety standards, for in effect they set independent state safety standards. See Silkwood, 104 S.Ct. at 628-30 (Blackmun, J. dissenting); id. at 635 (Powell, J. dissenting). Yet the Court held that the award of punitive damages was not preempted. If punitive damages for violating a jury-imposed standard of radiological safety are not barred, then clearly injunctive relief based on state laws not having as their purpose the imposition of radiological safety standards cannot be preempted.
The majority makes much of the fact that the radioactive and nonradioactive materials are “inextricably intermixed,” arguing that because of this inseparability state regulation of the nonradioactive materials is preempted by federal regulation of the radiological safety aspects of the radioactive material. While this argument might have some plausibility as an initial matter, it cannot be valid after Silkwood. Karen Silkwood was contaminated with plutonium from a Kerr-McGee processing plant. As the majority surely knows, plutonium is itself a radioactive material. The punitive damages awarded by the jury were to penalize the company for its conduct which allowed the release of this very material. On the majority’s theory, these punitive damages are preempted, for if material is radioactive, then any nonradioactive aspects are “inextricably intermixed” with its radioactive aspects. Yet the Supreme Court held that the punitive damages were not preempted by the NRC’s regulation of the safety aspects of the production of plutonium. A fortiori state regulation for otherwise permissible purposes of material that is not radioactive cannot be preempted even when the material is “inextricably intermixed” with radioactive material.
The majority notes that the NRC is currently considering a number of alternative sites for disposing of the wastes presently at the West Chicago site. The majority then speculates that individuals residing adjacent to these other sites or state authorities might bring injunctive actions similar to this one, and jumps to the conclusion that therefore this action is preempted. This approach is simply inadmissible. The majority is correct to be aware of the possibility of this conflict, in which the several states bar each of the options approved or considered by the NRC. But so far this conflict is possible, not actual, and it is sheer speculation to conclude that it will ever transpire. Currently there is no conflict between the federal and state schemes because it is not “physically im*1246possible” for Kerr-McGee to comply with both. Silkwood, 104 S.Ct. at 626; Pacific Gas & Electric, 461 U.S. at 204, 103 S.Ct. at 1722; Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963). A court should not delve into hypothetical situations seeking out conflicts where none clearly exist. Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 130-31, 98 S.Ct. 2207, 2216, 57 L.Ed.2d 91 (1978); see Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 446, 80 S.Ct. 813, 817, 4 L.Ed.2d 852 (1960).
This court has recognized these very principles in Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571 (7th Cir.), cert. denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618 (1982). In that case we stated that there must be “a direct conflict between federal and state law that cannot be reconciled. Courts are not to seek out conflicts where none necessarily exist,____” 677 F.2d at 579 (citations omitted: emphasis supplied). With all respect, it seems to me that the majority is seeking out a conflict where one does not necessarily exist in order to bolster its shaky argument for preemption. All Kerr-McGee need do in order to preclude any conflict is to request NRC permission for a disposal alternative which satisfies state law. Further, the hypothetical conflict postulated by the majority is one in which the state law might prohibit something the NRC would merely permit. “This sort of hypothetical conflict is not sufficient to warrant pre-emption.” Exxon Corp., 437 U.S. at 131, 98 S.Ct. at 2216. See Pacific Gas & Electric, 461 U.S. at 218-19, 103 S.Ct. at 1729-30 (“Because the NRC order does not and could not compel a utility to develop a nuclear plant, compliance with both it and § 25524.2 [the state statute] is possible.”). I therefore conclude that the injunctive relief requested by plaintiffs is not preempted.
However, it does not follow from the fact that the requested injunctive relief is not preempted that it would be proper to grant that relief at this time. I believe that this is an apt and proper case for application of the doctrine of primary jurisdiction. The question underlying the plaintiffs’ request for injunctive relief — whether the mill tailings material should be disposed of at the West Chicago site or elsewhere — is presently pending in the NRC administrative proceeding. The State of Illinois is one of the parties to that proceeding and has advanced the same position asserted by plaintiffs here. There is no contention that the state has not been adequately representing the plaintiffs’ interests.
Primary jurisdiction is a common law doctrine dating back at least to Texas & Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907). Primary jurisdiction
applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.
United States v. Western Pacific Railroad Co., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). The Supreme Court has explained the reasoning underlying primary jurisdiction as follows:
[I]n cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight *1247gained through experience, and by more flexible procedure.
Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952). See also Bradford School Bus Transit, Inc. v. Chicago Transit Authority, 537 F.2d 943, 949 (7th Cir.1976), cert. denied, 429 U.S. 1066, 97 S.Ct. 797, 50 L.Ed.2d 784 (1977); see generally 4 K. DAVIS, ADMINISTRATIVE LAW TREATISE, ch. 22 (2d ed. 1983); B. SCHWARTZ, ADMINISTRATIVE LAW 481-497 (1976).
Primary jurisdiction is applicable here. There are currently proceedings pending before the NRC concerning Kerr-McGee’s application for a license for on-site encapsulation of the materials now located at the West Chicago site. The NRC is considering eight disposal alternatives. There is a possible, though not yet any actual, conflict between NRC recommendations and state law. Most important, the NRC presumably has some specialized knowledge and expertise in this field. Finally, I note that several other courts have applied the doctrine of primary jurisdiction in closely analogous situations when NRC proceedings were pending. See, e.g., Honicker v. Hendrie, 465 F.Supp. 414, 419 (M.D.Tenn.1979), aff'd mem., 605 F.2d 556 (6th Cir.), cert. denied, 444 U.S. 1072, 100 S.Ct. 1015, 62 L.Ed.2d 753 (1980); Paskavitch v. United States Nuclear Regulatory Commission, 458 F.Supp. 216 (D.Conn.1978); Nader v. Ray, 363 F.Supp. 946, 953 (D.D.C.1973).
The State of Illinois argues as amicus that primary jurisdiction is not applicable here because the plaintiffs’ claims are based on state law and the NRC cannot enforce the relief requested. This argument is beside the point because primary jurisdiction is applicable even though the agency cannot grant the relief requested. See United States v. ICC, 337 U.S. 426, 464 n. 11, 69 S.Ct. 1410, 1430 n. 11, 93 L.Ed. 1451 (1949) (Frankfurter, J. dissenting); Lichten v. Eastern Air Lines, 189 F.2d 939 (2d Cir. 1951); SCHWARTZ, supra, 491; see also id. 492 n. 253 (collecting cases). As a practical matter, if the NRC does adopt certain of the disposal proposals now before it, the plaintiffs will get the relief they seek, though on different legal grounds. If, on the other hand, the NRC fails to adopt one of those alternatives, the plaintiffs will not be left without a remedy. It must “be emphasized that primary jurisdiction gives the agency the first, not the last, word on the matter.” SCHWARTZ, supra, 493. The initial, but not the final decision is given to the agency. Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 496-99, 78 S.Ct. 851, 860-62, 2 L.Ed.2d 926 (1958) (invalidating rate structure held to be within primary jurisdiction of Board in Far East Conference, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576, and United States Navigation Co. v. Cunard Steamship Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408 (1932)); see DAVIS, supra, § 22:7.
In sum, I do not believe that this injunctive action based on state law has been preempted, but rather that the NRC has primary jurisdiction over the issue underlying this action. Therefore the majority errs in affirming the dismissal of count I of the complaint. But it would also be error for the district court to proceed further in this litigation at this time. The proper course is for this court to reverse and remand with instructions that the district court stay its proceedings pending the NRC’s decision in the proceedings now before it. Pennsylvania Railroad Co. v. United States, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165 (1960); Western Pacific Railroad, 352 U.S. at 64, 77 S.Ct. at 165; DAVIS, supra, 91-92. Cf. Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976) (stay under doctrine of primary jurisdiction of common law tort action Jor fraudulent misrepresentation not appropriate where, inter alia, no technical expertise was relevant, there was no need for regulatory uniformity and the issues were within the court’s competence). With the NRC’s consideration of the disposal issue before it, the district court could then go on to consider whether the state law interests have been adequately considered, whether there is an actual conflict between the state and federal requirements, and, if it is not physically impossible for Kerr-McGee to *1248obey both state and federal law, what is the proper relief for these plaintiffs.2
. Whether Congress’s reluctance to preempt is sound public policy for the long run is not for us to decide. It. is abundantly clear to me, however, that Congress has been reluctant.
. The majority reaches the extreme and unprecedented conclusion that the NRC has, in effect, exclusive jurisdiction over nonradiation hazards at the site in question.