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IN RE THREE MILE ISLAND LITIG.

February 27, 1985

IN RE: THREE MILE ISLAND LITIGATION


The opinion of the court was delivered by: RAMBO

RAMBO, J.

 AMENDED MEMORANDUM*

 This case is before the court on defendants' Motion for Partial Summary Judgment. Defendants ask the court to dismiss the claim for punitive damages in each of the captioned actions, alleging that as a matter of federal law, punitive damages are not recoverable under the Price-Anderson Act. Pub.L. 85-256, 71 Stat. 576 (1957).

 Background

 The actions to which these motions are addressed were filed to recover for losses which are alleged to have occurred as a result of the accident at TMI on March 28, 1979. On January 27, 1984, plaintiff filed a Motion for a Rule 16 Conference to determine the applicability of Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S. Ct. 615, 78 L. Ed. 2d 443 (1984) to the pending lawsuits. Plaintiffs argued that the Supreme Court's decision in Silkwood, properly read, permits the recovery of punitive damages in these actions. During the conference held on February 23, 1984, a procedure was agreed upon to bring this threshold issue of the availability of punitive damages before the court for an early resolution. In an order issued that day, defendants were directed to file a motion and brief in support of their stated position that punitive damages are not available in the instant cases as a matter of law. Defendants then filed their motion for summary judgment. Briefing has been completed and the motion is ripe for consideration.

 The Price-Anderson Act

 The Price-Anderson Act was passed by Congress in 1957 as an amendment to the Atomic Energy Act of 1954. Act of Aug. 30, 1954, ch. 1073, 68 Stat. 919, as amended, 42 U.S.C. §§ 2011-2284 (1978 and Supp. 1984). The Act had the dual purpose of protecting the public by assuring a source of funds to compensate persons injured as a result of a nuclear accident and of encouraging private industry to enter into the development of nuclear power, 42 U.S.C.S. § 2012(i). See Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 57 L. Ed. 2d 595, 98 S. Ct. 2620 (1977). The Act limited the aggregate liability for a single nuclear incident to $560 million: $500 million plus the amount of liability insurance available on the private market - $60 million in 1957. The nuclear industry was required to purchase the maximum amount of privately underwritten public liability insurance and if damages from a nuclear disaster exceeded that amount, the Federal government would indemnify the licensees as well as other "persons indemnified" *fn1" in an amount not to exceed $500 million. Duke Power, 438 U.S. at 65.

 The Act has been twice amended. The 1966 amendments extended the basic liability-limitation provisions for another ten years. *fn2" A provision was added which required those indemnified under the Act to waive certain legal defenses in the event of an extraordinary nuclear occurrence. *fn3" Congress was concerned that state tort law, as it relates to liability for nuclear incidents, was unsettled and that it was necessary to insure a common standard of responsibility, specifically strict liability, across all jurisdictional bounds. This was accomplished by the waiver of defenses, which Congress believed was less intrusive on state tort law than would be the enactment of a federal strict liability statute. See, Duke Power, 438 U.S. at 66.

 The 1975 amendments extended the Act through 1987. A new provision required, in the event of a nuclear incident, each reactor owner to contribute a set amount toward the cost of compensating victims. 42 U.S.C. § 2210(b). The NRC subsequently set that amount to be $ 5 million. See 10 C.F.R. § 140.11(a)(4). While the liability ceiling of $560 million remained the same, the 1975 amendments effectively established a level of secondary liability. Congress further provided that "in the event of a nuclear accident involving damages in excess of [the] amount of aggregate liability, the Congress will thoroughly review the particular incident and will take whatever action is deemed necessary and appropriate to protect the public from the consequence of a disaster of such magnitude . . . ."

 Application of the Statute

 The only Supreme Court case to construe the Price-Anderson Act was Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 57 L. Ed. 2d 595, 98 S. Ct. 2620 (1977). In Duke Power, the Court sustained the constitutionality of the Act against challenges under both the Due Process and Equal Protection Clauses of the fifth amendment. While the Court has not had another opportunity to address Price-Anderson directly, it did include those amendments in its discussion of the Atomic Energy Act in the recent decision, Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S. Ct. 615, 78 L. Ed. 2d 443 (1984).

 Silkwood was an action brought by the decedent's father as administrator of her estate to recover for contamination injuries to Silkwood's person and property. Those injuries were allegedly sustained in her work with defendant Kerr-McGee. Asserting diversity jurisdiction, the action was based on common law tort principles under Oklahoma law. The Supreme Court held that the safety rationale of the Atomic Energy Act does not preempt the availability of an award of punitive damages in an action brought under state tort law. Specifically, the Court said:

 
We do not suggest that there could never be an instance in which the federal law would preempt the recovery of damages based on state law. But insofar as damages for radiation injuries are concerned, preemption should not be judged on the basis that the federal government has so completely occupied the field of safety that state remedies are foreclosed but on whether there is an irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would ...

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