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IN RE TMI LITIG. GOVERNMENTAL ENTITIES CLAIMS
August 17, 1982
IN RE TMI LITIGATION GOVERNMENTAL ENTITIES CLAIMS
The opinion of the court was delivered by: RAMBO
The accident at Three Mile Island Reactor No. 2 (TMI) near Harrisburg, Pennsylvania on March 28, 1979 has spawned numerous lawsuits most of which are pending in this court. Ripe for consideration is a motion for summary judgment filed by the defendants, owners of TMI, companies involved with its design and construction and a company which maintained the reactor. The captioned cases were consolidated for pre-trial disposition under the heading "Governmental Entities Claims." Summary judgment will be granted as to all aspects of the cases for the reasons set forth in the following discussion.
The actions seek to recover, on behalf of the Commonwealth of Pennsylvania, two named municipalities, and a class of all other Pennsylvania local municipalities within a radius of 100 miles from Three Mile Island these designated damages:
1. Overtime and compensatory time and other personnel costs incurred in responding to the nuclear incident;
2. Operational expenses and emergency purchases incurred in responding to the nuclear incident;
3. Lost work time as a result of the nuclear incident; and
4. Other expenses incurred as a result of and/or in response to the nuclear incident.
The municipalities also claim they are entitled to recompense for a reduction of real estate tax revenues due to population losses and a diminution of real estate values. Further they ask the court to declare TMI a nuisance and order that it be abated.
Defendants submitted the affidavits of William J. Collins, Director of Tax Assessment for Dauphin County (location of the named township plaintiffs). They reveal that both municipalities experienced an increase in real estate tax revenues in the year following the nuclear incident. The municipal plaintiffs have not countered this information with appropriate evidence to sustain the allegations in their complaint. Federal Rule of Civil Procedure 56(e) provides in relevant part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Plaintiffs' counsel admitted at oral argument that he has no reason to question the truth of the Collins affidavit. Defendants are entitled to summary judgment on the municipalities' claim for diminished real estate tax revenues.
The township plaintiffs allege that the TMI facility constitutes a public nuisance warranting injunctive relief. Plaintiffs' claim, if there is one, must arise under federal law, for federal law preempts state law when the matter concerns, as it does here, the radiological hazards of a nuclear facility. See 42 U.S.C. § 2021(k); Northern States Power Co. v. State of Minnesota, 447 ...
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