O'CONNER v. Commonwealth Edison Co., 88-1272.

• Citation: 770 F. Supp. 448
• Decision Date: 10 July 1991
• Docket Number: No. 88-1272.,88-1272.
• Parties: James R. O'CONNER, Plaintiff, v. COMMONWEALTH EDISON COMPANY, and London Nuclear Service, Inc., Defendants.
• Court: U.S. District Court — Central District of Illinois

770 F. Supp. 448

James R. O'CONNER, Plaintiff, v. COMMONWEALTH EDISON COMPANY, and London Nuclear Service, Inc., Defendants.

No. 88-1272.

United States District Court, C.D. Illinois, Peoria Division.

July 10, 1991.

Jay H. Janssen, Peoria, Ill., for plaintiff.

Rex Linder, Peoria, Ill., Terrence E. Kiwala, Chicago, Ill., Donald E. Jose, Philadelphia, Pa., for defendants.

ORDER

MIHM, District Judge.

Before the Court is a Motion by the Plaintiff for remand of this case to state court based upon the assertion that the Price-Anderson Amendments Act of 1988, 42 U.S.C. § 2210(n)(2), which provides removal of cases such as this to United States District Courts, is unconstitutional.¹ This Court finds that the Act is constitutional and denies the Motion to Remand for the reasons stated herein.

JURISDICTION

On October 1, 1985, this action was commenced by O'Conner in the Circuit Court of the Tenth Judicial Circuit of Illinois in Tazewell County.² O'Conner's Complaint alleged that he was a radiation worker for London Nuclear Services which had hired O'Conner to work as a pipe fitter in construction repair operations at the Commonwealth Edison Nuclear Power Plant in Cordova, Illinois. Commonwealth Edison is a public utility and London Nuclear Services was its contractor performing services at the nuclear power plant. In both counts of his Complaint, O'Conner alleged that the Defendants negligently exposed O'Conner to radiation which caused various injuries.

On September 13, 1988, the Defendants removed this case as a "public liability action" under 42 U.S.C. § 2210(n)(2). The Defendants assert that this case is a "public liability action" (under the Price-Anderson Act as amended in 1988) by a radiation worker against an Illinois public utility and its contractor. See, 42 U.S.C. § 2014(hh), (w), and (q).

O'Conner filed an objection to the removal on September 23, 1988. The Defendants responded to this objection on November 1, 1988. O'Conner then filed a reply on November 28, 1988. Finally, on December 8, 1988, the Defendants filed another reply. (See, documents # 5, # 7, # 9, # 10). The Magistrate held a hearing on the objection to the Petition for Removal on January 5, 1989. He denied O'Conner's request for remand by docket entry on that same date.³

O'Conner asserts that, if the Atomic Energy Act preempts state court jurisdiction, that preemption is limited solely to the exclusive jurisdiction of the federal government to control the standards and methods of regulation only and does not preempt state court jurisdiction premised upon common law negligence. See, Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Further, O'Conner asserts that the sole purpose of the Price-Anderson Act was to establish an indemnification scheme where the operator of the nuclear plant would be subject to multi-million dollar judgments. Thus, O'Conner submits that the Price-Anderson Act is applicable only if the verdict potential for the injuries caused by the radioactive material exceeds $60,000,000, and only if the government must implement the indemnification procedures of the Price-Anderson Act. O'Conner notes that the joint committee report on the original version of the Price-Anderson Act indicated this limited need was the sole purpose of a limited scope of federal court intervention:

Since the rights of third parties who are injured are established by state law, there is no interference with the state law until there is likelihood that the damages exceed the amount of financial responsibility required together with the amount of the indemnity. At that point the federal interference is limited to the prohibition of making payments to the state courts and to pro rating the proceeds available.

S.Rep. No. 296, 85th Cong., 1st Sess. 9 (1956).

As the Defendants note, however, their Petition for Removal is based upon the Price-Anderson Act of 1988 which amended the Atomic Energy Act of 1954 to provide for retroactive federal court jurisdiction over claims involving a "nuclear incident." The Price-Anderson Act amendments of 1988 broadened the scope of the Atomic Energy Act to apply to individual claims of personal injury arising out of radiation exposure. Sections 11(a)(1)(A) and (B) and § 11(a)(2) of the Price-Anderson Act amendments of 1988 amend § 170(n)(2) of the Atomic Energy Act of 1954 (42 U.S.C. § 2210(n)(2)) by striking the clause "an extraordinary nuclear occurrence" each place it appears and inserting the clause "a nuclear incident." 42 U.S.C. § 2210(n)(2) now reads as follows:

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, or in the case of a nuclear incident taking place outside the United States, the United States District Court for the District of Columbia, shall have original jurisdiction without regard to the citizenship of any party or the amount in controversy. Upon motion of the defendant or of the Commission, or the Secretary, as appropriate, any such action pending in any state court (including any such action pending on August 20, 1988) or United States District Court shall be removed or transferred to the United States District Court having venue under this subsection.... (Emphasis added).

The key terms to determine whether removal is proper are "public liability action" and "nuclear incident." The Atomic Energy Act defines a "nuclear incident" as "any occurrence" which causes an injury resulting from toxic exposure to radiation. Specifically, the Atomic Energy Act provides:

The term "nuclear incident" means any occurrence, including an extraordinary nuclear occurrence, within the United States causing ... bodily injury, sickness, disease, or death, or loss 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 by-product material....

42 U.S.C. § 2014(q) (emphasis added).

Section 11(b) of the Price-Anderson Act amendments of 1988 defines a "public liability action" as follows:

The term "public liability action", as used in section 2210 of this title, means any suit asserting public liability. 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). 42 U.S.C. § 2014(w) defining "public liability" provides in relevant part:

The term "public liability" means any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation.... (Emphasis added).

After examining the amendments to the Atomic Energy Act by the Price-Anderson Act amendments of 1988, this Court concludes that the plain language of the Act, as amended, shows that Congress's intent was to broaden the scope of the Act and thereby expand coverage to individual incidents of claimed personal injury from radiation exposure. It is clear that this litigation involves a "public liability action" under 42 U.S.C. § 2210(n)(2), because this is a suit asserting "public liability" under 42 U.S.C. § 2014(hh). The alleged legal liability in this action arises out of a "nuclear incident" under 42 U.S.C. § 2014(w) as defined under the broad definition of "nuclear incident" given by the Act under 42 U.S.C. § 2014(q). Therefore, this Court has jurisdiction of this action.

DISCUSSION

O'Conner has now asserted that this case should be remanded to state court because the removal was premised upon an unconstitutional statute, 42 U.S.C. § 2210(n)(2). O'Conner asserts that the statute is unconstitutional because Congress exceeded the scope of Article III, Section 2 of the United States Constitution by granting federal courts subject matter jurisdiction in this case. Second, O'Conner contends that the Price-Anderson Act unconstitutionally interferes with state sovereignty by divesting a state judicial system of jurisdiction over a pending case. Third, O'Conner maintains that retroactive application of the removal provision violates the due process clause of the Fifth Amendment. Finally, O'Conner argues that the equal protection clause of the Fourteenth Amendment is violated by increasing the compensation fund for cases in the future while failing to increase that fund for pending cases.

The United States and the Defendants in this case oppose this motion.

I. Does Congress's Enactment of 42 U.S.C. § 2210(n)(2) Exceed the Scope of Article III of the United States Constitution?

O'Conner first asserts that cases arising under the 1988 Price-Anderson Act Amendments do not arise under federal law. See, Stibitz v. General Public Utilities Corp., 746 F.2d 993 (3rd Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985); Kiick v. Metropolitan Edison Company, 784 F.2d 490 (3rd Cir.1986); Commonwealth of Pennsylvania v. General Public Utilities Corp., 710 F.2d 117 (3rd Cir.1983); Duke Power Company v. Carolina Environmental Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Based on the foregoing cases, O'Conner asserts that Congress never intended the Price-Anderson Act to create federal substantive law supporting arising under jurisdiction in Article III, Section 2 of the United States Constitution.

This Court disagrees with O'Conner's analysis for several reasons. First, each of the cases cited by O'Conner are inapplicable to the present case because of the subsequent passage of the Price-Anderson Act amendments of 1988. Second, under certain circumstances, this Court believes that Congress has the power to incorporate state law as federal...