The opinion of the court was delivered by: Mihm, District Judge.
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.*fn2 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.*fn3
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).
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
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. . . .
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 ...