Carey v. Kerr-McGee Chemical Corp.

• Decision Date: 18 August 1999
• Docket Number: No. 96 C 8583.,96 C 8583.
• Citation: 60 F.Supp.2d 800
• Parties: Jesse and Dorothy CAREY, married individuals; Nicholas and Deborah Dassion, married individuals, Rebekah Dassion, a minor by Nicholas Dassion her father, as natural guardian and next friend, and Mihailo and Janet Bozidarevic, married individuals, on behalf of themselves and all persons similarly situated, Plaintiffs, v. KERR-McGEE CHEMICAL CORPORATION, a Delaware corporation, and Kerr-McGee Corporation, a Delaware corporation, Defendants.
• Court: U.S. District Court — Northern District of Illinois

60 F.Supp.2d 800

Jesse and Dorothy CAREY, married individuals; Nicholas and Deborah Dassion, married individuals, Rebekah Dassion, a minor by Nicholas Dassion her father, as natural guardian and next friend, and Mihailo and Janet Bozidarevic, married individuals, on behalf of themselves and all persons similarly situated, Plaintiffs, v. KERR-McGEE CHEMICAL CORPORATION, a Delaware corporation, and Kerr-McGee Corporation, a Delaware corporation, Defendants.

No. 96 C 8583.

United States District Court, N.D. Illinois, Eastern Division.

August 18, 1999.

Paul Joseph Fina, Downers Grove, IL, Steve W. Berman, Hagens & Berman, Seattle, WA, Paul M. Weiss, Eric D. Freed, Freed Weiss & Flaum, Chicago, IL, Thomas A. Demetrio, Daniel M. Kotin, David Casey Wise, Corboy & Demetrio, Chicago, IL, Michael Jerry Freed, Much, Shelist, Freed, Denenberg, Ament & Rubenstein, Chicago, IL, for plaintiffs.

Michael P. Connelly, Raymond Eugene Stachnik, Matthew Patrick Connelly, Connelly & Schroeder, Chicago, IL, Richard A. Meserve, Peter J. Nickles, Elliott Schudler, Alan A. Pemberton, Covington & Burling, Washington, DC, for defendants.

MEMORANDUM OPINION AND ORDER

GETTLEMAN, District Judge.

Plaintiffs Jesse and Dorothy Carey, Nicholas and Deborah Dassion, Rebekah Dassion by her father and guardian Nicholas Dassion, and Mihailo and Janet Bozidarevic brought a five count putative class action complaint against defendants Kerr-McGee Chemical Corporation and Kerr-McGee Corporation for property damage and personal injuries resulting from thorium tailings produced at defendants' West Chicago plant (the "Facility"). Counts I and II were for property damage, alleging continuing trespass and nuisance. Counts III, IV and V contained claims for both property damage and personal injury (medical monitoring), alleging strict liability for ultra-hazardous activity, negligence, and willful and wanton conduct. In its March 17, 1998, order, the court held that under Illinois law plaintiff's could maintain a claim for medical monitoring damages, but that the adult plaintiffs' claims were barred by the applicable statute of limitations. In addition, the court held that the property damage claims in Counts III, IV and V were also barred by the statute of limitations. Finally, the court held that Counts I and II, which alleged "continuing" torts, were insufficiently pled, but granted plaintiffs leave to file an amended complaint with respect to those counts only. Carey v. Kerr-McGee, 999 F.Supp. 1109 (N.D.Ill.1998).¹

On May 19, 1998, plaintiffs filed a second amended complaint ("SAC"), purporting to comply with the court's March 17, 1998, order allowing them to replead the continuing tort counts. In the SAC, Counts I and II again attempt to allege continuing trespass and nuisance, but are now based on a claim that defendants are conducting EPA-ordered remediation in an improper manner, a claim not raised in the first two complaints. Counts III, IV and V are claims seeking medical monitoring on behalf of those persons who are 20 years old or younger as of December 16, 1961 (the "minor class") based on negligence, strict liability and willful and wanton conduct. On June 12, 1998, defendants moved to dismiss or for summary judgment, arguing that all plaintiffs' state law claims are preempted by the federal Price-Anderson Amendments Act, 42 U.S.C. § 2210, and that plaintiffs cannot prove a violation of the applicable federal standards. In addition, defendants argue that the continuing tort claims should be dismissed to the extent that they purport to be based on alleged dust emissions from EPA-ordered and monitored remediation, and that plaintiff cannot recover remediation costs because they have not incurred such costs. After defendants filed their motion, the parties conducted extensive discovery, lasting over six months. Accordingly, the court will treat defendants' motion as one for summary judgment pursuant to Fed. R.Civ.P. 12(b)(6).

Rather than just responding to defendants' motion, plaintiffs filed their own motion for partial summary judgment, seeking an order "dismissing the argument asserted by defendants that the Price-Anderson Act preempts state law claims." The obvious purpose behind this improper use of Fed.R.Civ.P. 56 was to gain an additional two briefs and have the last word on the Price-Anderson issue.² Both defendants' and plaintiffs' motions are now fully briefed and ready for disposition. For the reasons set forth below plaintiffs' motion is denied, and defendant' motion for summary judgment is granted in part and denied in part.

DISCUSSION

As noted above, the parties have focused their briefs on the threshold issue of whether plaintiffs' state law claims are preempted by the Price-Anderson Amendments Act of 1988, 42 U.S.C. § 2210 (the "Amendments Act"). To understand the scope of the Amendments Act, it is necessary to view it in the context of the entire federal statutory scheme on nuclear power. In 1946 Congress passed the Atomic Energy Act, which initially gave the federal government a monopoly with respect to the development of nuclear power. O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1095 (7th Cir.1994). Congress later determined, however, that the private sector should be included in the development of atomic energy. Therefore, in 1954 Congress enacted the Atomic Energy Act of 1954 ("AEA"), which established the Atomic Energy Commission and gave it the authority to licence and regulate nuclear facilities. Id. See 42 U.S.C. § 2011-2281. This Act alone failed to spur the intended private sector entry into the field of nuclear energy because of a fear of potentially bankrupting liability absent some limiting legislation. Id; Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 64, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). Consequently, in 1957 Congress amended the AEA with the Price-Anderson Act, for the express purpose of "protecting the public and ... encouraging the development of the atomic energy industry." Id.; El Paso Natural Gas Co. v. Neztsosie, ___ U.S. ___, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999). The Price-Anderson Act had three main features: it established a limit on the aggregate liability of those who undertake activity involving the handling or use of radioactive materials; it channeled public liability resulting from nuclear incidents to the federal government; and it established that all public liability claims above the amount of required private insurance protection would be indemnified by the federal government up to the aggregate limit on liability. Id.

The Price-Anderson Act was extended for an additional ten years in 1966. At that time Congress added a new provision which required that persons indemnified waive certain common law defenses in the event of an action arising out of an Extraordinary Nuclear Occurrence ("ENO"). Additionally, the 1966 amendment provided for transfer to federal court of all claims arising out of an ENO. Id. (citing 42 U.S.C. § 2210(n)(2)); In re TMI Litigation Cases Consolidated II, 940 F.2d 832, 852 (3rd Cir.1991). As noted by the Seventh Circuit, O'Conner, 13 F.3d at 1095 (quoting Duke Power Co., 438 U.S. at 65-66, 98 S.Ct. 2620), these provisions were premised on:

congressional concern that state tort law dealing with liability for nuclear incidents was generally unsettled and that some way of insuring a common standard of responsibility of all jurisdictions —strict liability — was needed. A waiver of defenses was thought to be the preferable approach since it entailed less interference with state tort law than would the enactment of a federal statute prescribing strict liability.

The Price-Anderson Act was amended twice more, in 1975 and, more significantly, in 1988 when Congress passed the Amendments Act. It is the scope of the Amendments Act that is relevant to the instant case.

The Amendments Act "expanded the reach of § 2210(n)(2) to provide for removal of, and original federal jurisdiction over, claims arising from any `nuclear incident,' instead of actions arising only from ENOs." Id. Section 2210(n)(2) now provides in relevant part:

With respect to any public liability action arising out of or resulting from a nuclear incident, the United States district court in the district where the nuclear incident takes place, ... shall have original jurisdiction without regard to citizenship of any party or the amount in controversy....

The Amendments Act defines a public liability action as "any suit asserting public liability." 42 U.S.C. § 2014(hh). A public liability action is deemed to be an action arising under § 2210, and the substantive rules for decision in such an action shall be derived from the law of the State in which the nuclear incident occurs, unless such law is inconsistent with the provisions of § 2210. Id.

It is against this statutory backdrop that the court must analyze defendants' claim that the instant case is one for public liability requiring plaintiffs to prove that defendants violated a standard of care set by federal regulation. Under the Amendments Act, any public liability action arising out or resulting from a nuclear incident arises under federal law, is "preempted" and "federal regulations must provide the sole measure of the defendants' duty...." 42 U.S.C. § 2210(n)(2); O'Conner, 13 F.3d at 1105. A public liability action is any suit asserting public liability. 42 U.S.C. § 2014(hh). Public liability means any legal liability arising out of or resulting from a nuclear incident. 42 U.S.C. § 2014(w). A nuclear incident is "any occurrence, including an ENO, within the United States causing ... bodily injury, sickness, disease, death, or loss of or damage to property or loss of use of property arising out of or resulting from the radioactive, toxic, explosive or other hazardous properties of source, special nuclear or byproduct material." Therefore, for defendants' argument to prevail, they must establish that pla...