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O'CONNER v. COMMONWEALTH EDISON CO.

July 10, 1991

JAMES R. O'CONNER, PLAINTIFF,
v.
COMMONWEALTH EDISON COMPANY, AND LONDON NUCLEAR SERVICE, INC., DEFENDANTS.



The opinion of the court was delivered by: Mihm, District Judge.

ORDER

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.*fn1 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.*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
  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 ...


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