TMI, In re

Decision Date17 October 1995
Docket NumberNo. 94-7599,94-7599
Citation67 F.3d 1103
PartiesNuclear Reg. Rep. P 20,571, 64 USLW 2267, 26 Envtl. L. Rep. 20,006 In re TMI. General Public Utilities Corp.; Metropolitan Edison Company; Jersey Central Power & Light Co.; Pennsylvania Electric Co.; Babcock & Wilcox Company; McDermott Incorporated; UE & C Catalytic, Inc. (Raytheon); Burns & Roe Enterprises; Dresser Industries, Appellants.
CourtU.S. Court of Appeals — Third Circuit

Alfred H. Wilcox (argued), Ellen K. Scott, Pepper, Hamilton & Scheetz, Philadelphia, Pennsylvania, for Appellants.

Laurence S. Berman (argued), Arnold Levin, Levin, Fishbein, Sedran & Berman, Philadelphia, Pennsylvania, Lee C. Swartz, Hepford, Swartz & Morgan, Harrisburg, Pennsylvania, William R. Wilson, Jr., Jackson, Mississippi, for Appellees, Dorothy L. Aldrich, et al.

Louis M. Tarasi, Jr., Tarasi & Johnson, Pittsburgh, Pennsylvania, for Appellees, Estate of Henrietta Adams, et al.

Before: SCIRICA, McKEE and SAROKIN, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In 1979, an accident occurred at a nuclear power facility near Harrisburg, Pennsylvania, releasing radiation into the atmosphere and catapulting the name, "Three Mile Island," into the national consciousness. Sixteen years later, we are called on once again to consider the Three Mile Island accident as we determine the appropriate standard of care for the operators of the facility.

I. Procedural History

The accident at the Three Mile Island ("TMI") nuclear power facility occurred on March 28, 1979. As a result, thousands of area residents and businesses filed suit against the owners and operators of the facility, 1 alleging various injuries. 2 This case involves the consolidated claims of more than 2000 plaintiffs for personal injuries allegedly caused by exposure to radiation released during the TMI accident.

These cases began more than a decade ago, when plaintiffs filed damage actions in the Pennsylvania state courts and the Mississippi federal and state courts. 3 After defendants removed the state cases to federal court, asserting federal jurisdiction under the Price-Anderson Act, we held that the Act created no federal cause of action and was not intended to confer jurisdiction on the federal courts. See Kiick v. Metropolitan Edison Co., 784 F.2d 490 (3d Cir.1986); see also Stibitz v. General Pub. Utils. Corp., 746 F.2d 993 (3d Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). The actions were remanded to the appropriate state courts.

Subsequently, Congress enacted the Price-Anderson Amendments Act of 1988 ("1988 Amendments" or "Amendments Act"), Pub.L. No. 100-408, 102 Stat. 1066, which expressly created a federal cause of action for "public liability actions" 4 and provided that such suits arose under the Price-Anderson Act. 42 U.S.C. Sec. 2014(hh) (1988). The Amendments Act also provided for consolidation of such actions, including those already filed, in one federal district court. Id. Sec. 2210(n)(2). Accordingly, these personal injury actions were removed to federal court and consolidated in the Middle District of Pennsylvania. We upheld the constitutionality of the retroactive application of the federal jurisdiction provisions of the Amendments Act and remanded the actions back to the district court. In re TMI Litig. Cases Consol. II, 940 F.2d 832 (3d Cir.1991) ("TMI II "), cert. denied, 503 U.S. 906, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992).

Contending they had not breached the duty of care, defendants then moved for summary judgment, which the district court denied. In re TMI Litig. Cases Consol. II, No. 88-1452, slip op. at 36 (M.D.Pa. Feb. 18, 1994). After holding that federal law determines the standard of care and preempts state tort law, id. at 23, the district court found the standard of care was set by the federal regulations: 1) prescribing the maximum permissible levels of human exposure to radiation 5 and 2) requiring radiation releases to be "as low as is reasonably achievable," which is known as the "ALARA" principle. 6 Id. at 28-29. The court held that each plaintiff must prove individual exposure to radiation in order to establish causation, but not to establish a breach of the duty of care. Id. at 30-31.

Upon defendants' motion, the district court certified for interlocutory appeal the duty of care and causation issues:

1) Whether 10 C.F.R. Secs. 20.105 and 20.106, and not ALARA, constitute the standard of care to be applied in these actions;

2) Whether a particular Plaintiff's level of exposure to radiation or radioactive effluents relates solely to causation or also to the duty owed by Defendants.

In re TMI Litig. Cases Consol. II, No. 88-1452 (M.D.Pa. July 13, 1994). 7 We granted the petition for interlocutory appeal.

The district court had jurisdiction under 42 U.S.C. Sec. 2210(n)(2) (1988). We have jurisdiction under 28 U.S.C. Sec. 1292(b) (1988) and exercise plenary review over the legal questions certified. See Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777, 779 (3d Cir.1992).

II. Preemption

Initially, we must address the district court's decision that federal law determines the standard of care, preempting state tort law. See In re TMI Litig. Cases Consol. II, No. 88-1452, slip op. at 23 (M.D.Pa. Feb. 18, 1994). The district court essentially relied on our holding in TMI II, 940 F.2d 832, 859 (3d Cir.1991), cert. denied, 503 U.S. 906, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992), and decisions following it. 8 See In re TMI Litig. Cases Consol. II, No. 88-1452, slip op. at 15-23 (M.D.Pa. Feb. 18, 1994). But plaintiffs contend that TMI II did not resolve this issue.

Under the 1988 Amendments, the applicable law for "public liability actions" is "the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent" with federal law. 42 U.S.C. Sec. 2014(hh) (1988). Thus, Pennsylvania tort law would control here, unless inconsistent with federal law. But TMI II decided this issue by preempting state tort law on the standard of care.

In TMI II, we considered the constitutionality of the 1988 Amendments, specifically, whether they improperly conferred "arising under" jurisdiction. 940 F.2d at 848-49. Examining the Amendments Act's "federal components," we found federal preemption of state tort law on the applicable standard of care. See id. at 858 ("Two Supreme Court cases indicate that the duty the defendants owe the plaintiffs in tort is dictated by federal law."); id. at 859 ("Permitting the states to apply their own nuclear regulatory standards, in the form of the duty owed by nuclear defendants in tort, would, however, 'frustrate the objectives of federal law.' ") (citation omitted); id. ("Under Pacific Gas & Electric Co., states are preempted from imposing a non-federal duty in tort, because any state duty would infringe upon pervasive federal regulation in the field of nuclear safety, and thus would conflict with federal law."). Thus, TMI II definitively resolved the issue whether federal law preempts state tort law on the standard of care.

But we also said, "Consequently the plaintiffs' rights will necessarily be determined, in part, by reference to federal law, namely the federal statutes and regulations governing the safety and operation of nuclear facilities." Id. at 860. Plaintiffs contend that, by using the term "in part," "this Court left open the question of whether the applicable duty of care is exclusively federal." Appellees' Br. at 37. We cannot agree. Because we held that federal law preempted state law on the duty of care, plaintiffs' rights had to be determined, at least in part, by federal law. We did not address whether federal law also controlled other aspects of plaintiffs' claims, such as causation and damages, because they were not at issue. TMI II controls, and federal law determines the standard of care and preempts state tort law. See also O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1105 (7th Cir.) (citing TMI II ) (holding state law on the duty of care preempted in tort suits involving nuclear safety), cert. denied, --- U.S. ----, 114 S.Ct. 2711, 129 L.Ed.2d 838 (1994).

III. Statutory and Regulatory History

Although it is clear that federal law governs the standard of care for tort claims arising from nuclear accidents, it is more difficult to discern the precise contours of that federal duty. The question appears to be one of first impression for a federal appellate court. 9 Accordingly, we will examine the language of the relevant statutes and regulations, and the underlying history and policies.

A. Statutes

Nearly a half century ago, Congress initiated its regulation of nuclear power through the enactment of the Atomic Energy Act of 1946, Pub.L. No. 79-585, 60 Stat. 755. The Act was designed to establish an industry to generate inexpensive electrical power, transforming "atomic power into a source of energy" and turning "swords into plowshares." Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 193, 103 S.Ct. 1713, 1717, 75 L.Ed.2d 752 (1983).

Although the 1946 Act designated the nuclear industry a government monopoly, Congress later decided to permit private sector involvement. See Atomic Energy Act of 1954, Pub.L. No. 83-703, 68 Stat. 919. The 1954 Act "grew out of Congress' determination that the national interest would be best served if the Government encouraged the private sector to become involved in the development of atomic energy for peaceful purposes under a program of federal regulation and licensing." Pacific Gas & Elec., 461 U.S. at 206-07, 103 S.Ct. at 1723-24 (citing H.R.Rep. No. 2181, 83d Cong., 2d Sess. 1-11 (1954)).

Nevertheless, because of the unique nature of this form of energy production, the fledgling nuclear industry faced many problems, particularly:

the risk of potentially vast liability in the event of a nuclear accident of a sizable magnitude.... [W...

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