Blog By: Leen M. Heresh
I grew up near the Portsmouth Gaseous Diffusion Plant. One of three large gaseous diffusion plants in the United States—dedicated solely for development of nuclear weapons.[i] Aware of the Plant being a source of economic prosperity to the region and completely ignorant of the litigation occurring behind the scenes, I was shocked to discover a number of health code violations.[ii] For example, traces of carcinogens linked to bone cancer were found through air monitoring near a local middle school.[iii] To what seemed to be for the benefit of the community, Congress passed the Price-Anderson Nuclear Industries Act in 1957 to ensure the availability of a large pool of funds (nearly $10 billion) to provide “prompt and orderly compensation of members of the public who incur damages from a nuclear or radiological incident no matter who might be liable.”[iv] However, this blog will explore how the United States Courts interpreted the Price-Anderson Act language in a manner that prevented Portsmouth, Ohio and Paducah, Kentucky residents from proceeding with their class action lawsuits.
I. Price-Anderson Act:
The Price Anderson Act (“Act”) governs “any public liability action arising out of or resulting from a nuclear incident” and preempts any claims for such an action not brought under the Act.[v] It was passed in response to the need to provide liability limits for the commercialized nuclear industry.[vi] Critics of the Act contend that it protects the nuclear power industry from paying full cost of potential major accidents.[vii] Alternatively, its supporters contend that it provides an expedited, guaranteed, pool of funds that is beneficial to those seeking relief that otherwise would have to go through the tort process.[viii]
In Matthews, the Sixth Circuit broadened the application of the Act to claims that did not specifically state “nuclear incident” as the primary cause of the alleged legal liability.[ix] Contrary to Plaintiff’s request, the Court held that preemption was appropriate, and the action was consequently removed.[x] Additionally, the Court further broadened the scope of the Act by including claims regarding ongoing releases of “toxic materials into the environment for decades.”[xi] When Plaintiff attempted to assert that this level of protection for the uranium industry is against public policy, the Court directed those grievances to Congress’ authority and exercised judicial restraint.[xii]
This “lack of authority” cloak the Sixth Circuit has been shielding behind re-appeared in yet another case where Plaintiffs sought damages from exposure to the toxic chemicals from the Uranium plants.[xiii] The Court in Rainer rationalized that “the harsh reality of life in the present day is that thousands, if not millions of people, have been exposed to and/or ingested potentially harmful or toxic substances”, essentially conceding that harm is in-fact occurring but that current policy cannot promote compensation for harmed individuals.[xiv] Ultimately, the Sixth Circuit found the Plaintiffs’ legal and public policy arguments unpersuasive.[xv]
II. Paducah Plaintiffs
Paducah residents who felt that their rights had been compromised filed suit seeking damages for intentional trespass, nuisance, outrage, and strict liability.[xvi] Though the Court dismissed the latter three claims, it remanded the intentional trespass claim on the grounds that there is sufficient factual dispute as to whether the Paducah landowners suffered actual injury.[xvii] To satisfy Kentucky’s intentional trespass standard, actual injury must be proved through showing that “the parcel's groundwater is contaminated whether by imperceptible particles or visible particles, to the extent that it cannot be used for consumption by humans, animals, or crops.”[xviii] This outcome is more desirable as circumvents the outcome of litigating in Federal Court.
III. Portsmouth Plaintiffs
The Portsmouth plaintiffs took a different route and from the get-go attempted to argue that the Price-Anderson preemption violates their due process rights because it deprives them of an adequate remedy.[xix] Since the plaintiffs failed to establish that Congress has chosen to pass the Price-Anderson Act in an “arbitrary and irrational way,” the Court found that the application of state tort law remedies is perfectly reasonable.[xx] Furthermore, the Court found that the Price-Anderson Act language specifically stating that injuries arising out of a nuclear incident automatically trigger the application of the Price-Anderson Act = does not call for remanding the case to state court..[xxi]
IV. Alternative Relief
Though The Price-Anderson Act, suggests on its face that there is a mechanism of protection for people residing near the uranium enrichment plants, remedies are not easily provided to injured parties.[xxii] In this instance, it can be concluded that the Price-Anderson Act should be repealed altogether. In support, economists have critiqued the Price Anderson Act as a hidden subsidizing mechanism to endorse a specific industry such as this one—the nuclear weapons industry.[xxiii] For instance, Heyes argues that the “Price-Anderson Act is a backdoor way of channeling finance to a particular corporate interest group.”[xxiv] Alternatively, he suggests, “If government wants to favor the nuclear power sector over other generators, then it should just go ahead and send the sector a big pot of cash but leave the incentives for safe operation intact.”[xxv] Frankly, I agree as well.
[i] Portsmouth Site, Portsmouth/Paducah Project Off., https://www.energy.gov/pppo/portsmouth-site (last visited Apr. 16, 2023) [https://perma.cc/9W2N-5RNJ].
[ii] Lynn Hulsey, Dayton Daily News investigation found contamination, sick workers at Piketon plant, Dayton Daily News (May 15, 2019), https://www.daytondailynews.com/news/state--regional/2006-investigation-found-contamination-sick-workers-piketon-plant/AZkEGlITaQEu97Sb91duGN/ [https://perma.cc/J96D-SQLH].
[iii] Id.
[iv] The Price-Anderson Act, Ctr. for NuclearScience and Tech. Info. (Nov. 2005), https://cdn.ans.org/policy/statements/docs/ps54-bi.pdf [https://perma.cc/4PF2-KJLD].
[v] Willam Fork & Sidney Fowler, Sixth and Eighth Circuits Confirm the Broad Applicability of the Price-Anderson Nuclear Industries Indemnity Act, JDSupra (Feb. 7, 2022), https://www.jdsupra.com/legalnews/sixth-and-eighth-circuits-confirm-the-4857840/#:~:text=The%20Price-Anderson%20Act%20governs%20%E2%80%9Cany%20public%20liability%20action,such%20an%20action%20not%20brought%20under%20the%20Act.%29 [https://perma.cc/QF8Z-Q9JX].
[vi] Mark Holt, , Price-Anderson Act: Nuclear Power Industry Liability Limits and Compensation to the Public After Radioactive Releases, Cong. Rsch. Serv. (Feb 5, 2018), extension://efaidnbmnnnibpcajpcglclefindmkaj/https://crsreports.congress.gov/product/pdf/IF/IF10821.
[vii] Id.
[viii] Id.
[ix] Matthews v. Centrus Energy Corp., 15 F.4th 714, 717 (6th Cir. 2021).
[x] Id. at 721.
[xi] Id. at 724.
[xii] Id at 727.
[xiii] Rainer v. Union Carbide Corp., 402 F.3d 608 (6th Cir. 2005).
[xiv] Id.
[xv] Id.
[xvi] Smith v. Carbide & Chem. Corp., 507 F.3d 372, 374 (6th Cir. 2007).
[xvii] Id. at 383.
[xviii] Id. at 377.
[xix] Matthews, 15 F.4th at 727.
[xx] Id.
[xxi] Id. at 725 (citing Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1132-33 (10th Cir. 2010)).
[xxii] See generally Robert Lowenstein, the price-anderson act: an imaginative approach to public liability concerns, 12 Am. Bar Ass’n Section of Ins., Negl., and Comp. 594-604 (1977).
[xxiii] Anthony Heyes, Determining the Price of Price-Anderson: what is the cost of federal liability protection for nuclear power?, FARLEX (Dec. 22, 2022), https://www.thefreelibrary.com/Determining+the+price+of+Price-Anderson%3A+what+is+the+cost+of+federal...-a097448044 [https://perma.cc/WU6Z-53TS].
[xxiv] Id.
[xxv] Id.