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February 18, 1994

IN RE TMI LITIGATION CASES CONSOLIDATED II; This Document Relates to: All Plaintiffs

The opinion of the court was delivered by: RAMBO

 Before the court is Defendants' motion for summary judgment as to all Plaintiffs on the grounds that Defendants have not breached their duty of care owed to Plaintiffs. The matter has been fully briefed and is now ripe for review.


 Plaintiffs allege that they suffer various injuries caused by radiation released during the accident at Three Mile Island (hereinafter "TMI"). To succeed on their claims, Plaintiffs must establish the duty owed by Defendants, breach of that duty, the proximate cause between the breach and Plaintiffs' compensable injuries, and the damages arising from those injuries. *fn2"

 The question herein analyzed is what duty Defendants owed Plaintiffs. Defendants contend that their duty of care is governed by federal regulations which set the permissible levels of radiation and radioactive emissions (collectively "releases") that a nuclear power plant may disperse. Moreover, they contend they have never exceeded these levels in inhabited areas. In opposition, Plaintiffs argue that Defendants violated those federal regulations, or, in the alternative, that the applicable standard is prescribed by state tort law principles, not the federal regulations.

 I. Summary Judgment Standard

 The standards for the award of summary judgment under Federal Rule of Civil Procedure 56 are well known. As the Third Circuit Court of Appeals recently capsulized:

Summary judgment may be entered if "the pleadings, deposition[s], answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Equimark Comm. Finance Co. v. C.I.T. Financial Serv. Corp., 812 F.2d 141, 144 (3d Cir. 1987). If evidence is "merely colorable" or "not significantly probative" summary judgment may be granted. Anderson, 106 S. Ct. at 2511; Equimark, 812 F.2d at 144. Where the record, taken as a whole, could not "lead a rational trier of fact to find for the nonmoving party, summary judgment is proper." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).

 Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987). Once the moving party has shown that there is an absence of evidence to support the claims of the nonmoving party, the nonmoving party may not simply sit back and rest on the allegations in his complaint, but instead must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quotations omitted). The court will consider Defendants' motion under these standards.

 II. Statutory History

 An understanding of the applicable standard of care must begin with a brief review of the pertinent legislation. In 1946, Congress passed the Atomic Energy Act, creating a federal monopoly over the use, ownership, and control of nuclear technology. Atomic Energy Act of 1946, Act of Aug. 1, 1946, 60 Stat. 755. Nine years later, Congress passed a second Act to encourage private development in the nuclear industry. Atomic Energy Act of 1954, Act of Aug. 30, 1954, ch. 1073, 68 Stat. 919, as amended 42 U.S.C. § 2011, et seq. The 1954 Act permitted private ownership and operation of nuclear power facilities but granted the Atomic Energy Commission the exclusive authority to "license the transfer, delivery, receipt, acquisition, possession and use of nuclear materials." Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 207, 75 L. Ed. 2d 752, 103 S. Ct. 1713 (1983) (hereinafter "Pacific Gas") (citing 42 U.S.C. §§ 2014(e), (2), (aa), 2061-64, 2071-78, 2091-2099, 2111-2114 (1976 ed. and Supp. V)). The Pacific Gas Court described the new relationship envisioned between the state and federal governments:

Congress, in passing the 1954 Act and in subsequently amending it, intended that the Federal Government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant, but that the States retain their traditional responsibility in the field of regulating electric utilities for determining questions of need, reliability, cost, and other related state concerns.

 Id. at 205 (emphasis added).

 In 1959, Congress amended the Act, spelling out in greater detail the intended relationship between the federal and state governments. See 1959 Amendment to the Atomic Energy Act, as codified, 42 U.S.C. § 2021 (1988). While permitting the states more regulatory authority, the law mandated that the federal government regulate the safety aspects of nuclear materials. 42 U.S.C. 2021(c)(4); Silkwood v. Kerr-McGee, Corp., 464 U.S. 238, 250, 78 L. Ed. 2d 443, 104 S. Ct. 615 (1984). The law also provided, in part:

(k) Nothing in this section shall be construed to affect the authority of any State or local agency to regulate the activities for purposes other than protection against radiation hazards.

 42 U.S.C. § 2021(k) (emphasis added). This provision set the stage for substantial case law exploring the parameters of federal preemption in the radiological safety arena.

 In 1957, Congress passed the Price-Anderson Act which amended the Atomic Energy Act. Pub. L. No. 85-256, § 1.71 Stat. 576. The Price-Anderson Act placed a $ 560 million limit on liability arising from a nuclear accident at certain facilities. This limit was intended to balance the Congressional desire of compensating nuclear accident victims with the goal of encouraging nuclear technology by protecting against cataclysmic financial consequences of an accident.

 Finally, in 1988, Congress passed the Price-Anderson Amendments Act extending federal jurisdiction over suits regarding nuclear incidents to include not only "extraordinary nuclear occurrences" but all public liability actions. *fn3" Pub. L. No. 100-408, 102 Stat. 1066 (1988). More germane to the issue here, the 1988 Amendments directed that the law of the state where the accident occurred be adopted as federal law in such public liability actions. Specifically, the enactment provided:

A public liability action shall be deemed to be an action arising under section 2210 of this title, and the substantive rules for decision in such action shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of such section.

 42 U.S.C. § 2014(hh) (emphasis added).

 These various statutory provisions are accompanied by a comprehensive system of federal regulations establishing, inter alia, levels of permissible radiation. For example, 10 C.F.R. §§ 20.105 sets forth the permissible dose levels of radiation in unrestricted areas; 10 C.F.R. §§ 20.106, the permissible radioactive effluent emissions in unrestricted areas. Defendants contend that these regulations set the applicable standard of care.

 This court will adopt the preemption mode of analysis herein. This accords with the bulk of the case law on the issue. Moreover, as described below, the cases addressing the applicable standard of care have merged these modes of analysis, using preemption as one indicator of whether state standards are reconcilable with federal ones.

 III. Preemption

 The Supremacy Clause of the United States Constitution provides that "this Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art IV, cl. 2. From this clause flows the doctrine of federal preemption of state law. Case law has established that federal preemption is triggered in three circumstances:

(1) Congress may pass a statute that by its express terms preempts a state law,
(2) Congress, though not expressly stating, may imply that it is preempting state law by occupation of an entire field of regulation, so that no room is left for supplementary state regulation,
(3) Congress may speak neither expressly nor impliedly of preemption, nonetheless state law is preempted to the extent it actually conflicts with federal law; such a conflict occurs when
(a) compliance with both state and federal law is impossible or,
(b) when state law stands as an impediment to a federal purpose.

 Abbot v. American Cyanamid Co., 844 F.2d 1108, 1111 (4th Cir.), cert. denied, 488 U.S. 908, 102 L. Ed. 2d 248, 109 S. Ct. 260 (1988) (citing Michigan Canners and Freezers Ass'n v. Agric. Mktg. and Bargaining Bd., 467 U.S. 461, 469, 81 L. Ed. 2d 399, 104 S. Ct. 2518 (1984)) (emphasis added). See also Cipollone v. Liggett Group, Inc., 505 U.S. 504 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992); English v. General Elec. Co., 496 U.S. 72, 78-79, 110 L. Ed. 2d 65, 110 S. Ct. 2270 (1990).

 As this court has previously explained:

Analysis of preemption issues must "start with the assumption that the historic police powers of the States [are] not to be superseded by [federal law] unless that [is] the clear and manifest purpose of Congress." Cipollone, 505 U.S. 504, 516, 120 L. Ed. 2d 407 at 422, 112 S. Ct. 2608. (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947)). There is a strong presumption against preemption when "Congress does not expressly state its intent," Abbott, 844 F.2d at 1112 (citing Maryland v. Louisiana, 451 U.S. 725, 68 L. Ed. 2d 576, 101 S. Ct. 2114 (1981)); when regulations pertain to health or safety issues, Abbott, 844 F.2d at 1112 (citing Hillsborough County v. Automated Med. Labs, 471 U.S. 707, 715, 85 L. Ed. 2d 714, 105 S. Ct. 2371 (1985)); when there is no federal remedy for the plaintiff's injury, Abbot, 844 F.2d at 1112 (citing Silkwood v. Kerr-McGee, Corp., 464 U.S. 238, 251, 78 L. Ed. 2d 443, 104 S. Ct. 615 (1984), reh'g denied, 465 U.S. 1074, 79 L. Ed. 2d 754, 104 S. Ct. 1430 (1984), cert. denied, 476 U.S. 1104, 90 L. Ed. 2d 356, 106 S. Ct. 1947 (1986)); or in ambiguous cases. Cipollone, 120 L. Ed. 2d at 432 (Blackmun, J., concurring).

 Hunsaker v. Surgidev Corp., 818 F. Supp. 744, 747 (M.D. Pa. 1992), aff'd, No. 93-7013 (3d Cir. Aug. 27, 1993).

 A. Regulations

 A series of cases have addressed federal preemption of state regulations touching on nuclear power. These cases have relied substantially on field preemption analysis. This court has recently analyzed and summarized this case law: "to fall within the preempted field, state regulation must (1) have a direct and substantial effect (2) on decisions regarding radiological safety levels." McNear v. Pennsylvania State Police, Civ. Action No. 1:CV-92-1255, slip op. at 16 (May 10, 1993). For example, in the influential case of Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff'd mem., 405 U.S. 1035, 31 L. Ed. 2d 576, 92 S. Ct. 1307 (1972), the court held that federal regulations preempted state regulations governing radioactive emissions, as the latter had a substantial effect on permissible radiation emission levels.

 On the other hand, state regulations which only tangentially affect radiological safety have been upheld against preemption challenges. For example, in English v. General Electric Co., 496 U.S. 72, 110 L. Ed. 2d 65, 110 S. Ct. 2270 (1990), the plaintiff had complained about several alleged violations at the nuclear facility where she worked and was soon after discharged from employment. The Court upheld an award arising from the state tort of intentional infliction of emotional distress since "this effect was neither direct nor substantial enough to place petitioner's claim in the pre-empted field." Id. at 78.

 Similarly, state regulations have been upheld when their purpose is other than radiological safety. For instance, in Pacific Gas, the Court reiterated that states can not regulate safety aspects of nuclear technology but upheld the challenged state statute, which limited construction of nuclear plants to ensure adequate waste storage and disposal, because of the law's economic (rather than radiological safety) purpose. Pacific Gas, 461 U.S. at 222-23. Similarly, in Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 100 L. Ed. 2d 158, 108 S. Ct. 1704 (1988), the court determined that a suit arising from state tort law was not preempted since the state regulation at issue was wholly unrelated to radiation safety. Rather, the subject injury was caused by a protruding bolt on a scaffold.

 B. Tort Law

 While the cases examining federal preemption of state regulations are not necessarily dispositive to the question at bar, they suggest that a similar framework should apply to state tort standards with regulatory effects -- that if those standards substantially impact on radiological safety, they are preempted by federal regulations.

 Standards enacted as state regulations and those arising from common law are indistinguishable in effect. As this court commented in Hunsaker:

Tort remedies may have regulatory consequences. and thereby impose additional requirements on those parties attempting to comply with federal regulations. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959) ("[state] regulation can be as effectively exerted through an award of damages as through some form of preventative relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.") A jury's finding of liability effectively creates a new standard or duty which defendants must follow to shield themselves from future liability. It is absurd to contend that this fear of ...

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