Nikki Steiner Mazzocchio; Angela Steiner Kraus v. Cotter Corporation; Commonwealth Edison Company

United States Court of Appeals
For the Eighth Circuit
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No. 23-3709
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Nikki Steiner Mazzocchio; Angela Steiner Kraus
lllllllllllllllllllllPlaintiffs - Appellees
v.
Cotter Corporation; Commonwealth Edison Company
lllllllllllllllllllllDefendants - Appellants
DJR Holdings, Inc., formerly known as Futura Coatings, Inc.
lllllllllllllllllllllDefendant
St. Louis Airport Authority, A Department of the City of St. Louis
lllllllllllllllllllllDefendant - Appellant
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Bridgeton Landfill; American Nuclear Insurers
lllllllllllllllllllllAmici on Behalf of Appellant(s)
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 25, 2024
Filed: October 30, 2024
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Before BENTON, ARNOLD, and KOBES, Circuit Judges.
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ARNOLD, Circuit Judge.
Sisters Nikki Mazzocchio and Angela Kraus suspect that exposure to
radioactive waste caused them to develop cancer. So they brought a federal "public
liability action" under the Price-Anderson Act (PAA) against defendants that had
handled the waste over the years, raising claims of negligence, negligence per se,
strict liability, and civil conspiracy. The defendants moved to dismiss the complaint
on the ground that federal law preempted the plaintiffs' state-law claims because
federal nuclear dosage regulations provide the exclusive standard of care in a public
liability action, and the plaintiffs didn't adequately plead that the defendants had
violated those standards. The district court1 disagreed and denied the motions to
dismiss, and we granted the defendants permission to appeal. See 28 U.S.C.
§ 1292(b). We affirm.
At this stage of the proceedings, we accept the facts alleged in the complaint
as true. See Tholen v. Assist Am., Inc., 970 F.3d 979, 982 (8th Cir. 2020). Years ago
a company named Mallinckrodt processed uranium in downtown St. Louis. It
transported radioactive waste to a site that the defendant St. Louis Airport Authority
now owns near St. Louis Lambert International Airport and Coldwater Creek. From
there radioactive waste was transported to another site next to Coldwater Creek about
a mile downstream. When defendant Cotter Corporation assumed control of the waste
1The Honorable Matthew T. Schelp, United States District Judge for the
Eastern District of Missouri.
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stored at the downstream site, it dried and transported much of the waste by rail and
mixed the rest into soil that was dumped in a landfill. Cotter, which was later bought
by defendant Commonwealth Edison Company, certified that the downstream site
was decontaminated. Surveys of the area later showed otherwise. The plaintiffs allege
that radioactive waste under the defendants' control contaminated Coldwater Creek
and the surrounding properties, "including the areas where Plaintiffs lived, gardened,
and frequented (and where Plaintiff Mazzocchio worked)."
"Congress enacted the PAA in 1957 to encourage private commercial nuclear
research and energy production after it became clear that, without government
intervention, the liability risks from nuclear material would stunt private
development." In re Cotter Corp., (N.S.L.), 22 F.4th 788, 794 (8th Cir. 2022). The
PAA did so by providing "a system of private insurance, Government
indemnification, and limited liability for claims for federal nuclear licensees." See id.
Congress amended the PAA in 1988 to give federal courts jurisdiction over what it
called a "public liability action" that "aris[es] out of or result[s] from a nuclear
incident." See id.; 42 U.S.C. § 2210(n)(2). In turn, a "nuclear incident" is defined
broadly to mean "any occurrence . . . causing . . . bodily injury, sickness, disease, or
death . . . arising out of or resulting from the radioactive, toxic, explosive, or other
hazardous properties of source, special nuclear, or byproduct material." See 42 U.S.C.
§ 2014(q). With this amendment, Congress essentially "expressed an unmistakable
preference for a federal forum" by giving federal courts original and removal
jurisdiction to hear these claims. See El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473,
484–85 (1999).
The defendants here maintain that Congress prefers not only a federal forum
but also application of federal standards of care, such as federal nuclear dosage
regulations governing how much radiation could be released into the environment.
See, e.g., 10 C.F. R. § 20.105 (1960), § 20.106 (1964). They emphasize that we have
said "that the states possess no authority to regulate radiation hazards." See N. States
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Power Co. v. Minnesota, 447 F.2d 1143, 1149–50 (8th Cir. 1971). They note,
moreover, that the Supreme Court has similarly recognized that "the federal
government maintains complete control of the safety and 'nuclear' aspects of energy
generation," and so state regulations in the field of nuclear safety are preempted
except where regulatory authority is "expressly ceded to the states." See Pac. Gas &
Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 212
(1983). And they point to a section of the Atomic Energy Act that permits the Nuclear
Regulatory Commission (NRC) to enter into agreements with a state to permit the
state to regulate "for the protection of the public health and safety from radiation
hazards." See 42 U.S.C. § 2021(b). That statute goes on to say that "[n]othing in this
section shall be construed to affect the authority of any State or local agency to
regulate activities for purposes other than protection against radiation hazards," see
id. § 2021(k), which the defendants read to mean that states cannot regulate the
hazards of radiation absent the requisite agreement, as here.
These authorities make clear that, absent an agreement between the NRC and
a state, states cannot enact and enforce "before-the-fact nuclear safety" statutes or
regulations. See Cook v. Rockwell Int'l Corp., 790 F.3d 1088, 1098 (10th Cir. 2015)
(Gorsuch, J.). But the question we face is whether the rules of state tort law, which
might indirectly regulate in this field, are preempted as well. Both the Supreme Court
and Congress have made clear that the answer is no.
Less than a year after it decided Pac. Gas, the Court had to decide whether
federal law preempted a jury's award of punitive damages in state court to a plaintiff
who was injured when plutonium escaped from a nuclear facility. See Silkwood v.
Kerr-McGee Corp., 464 U.S. 238, 241 (1984). It explained that, though "the federal
government has occupied the entire field of nuclear safety concerns," see id. at 249
(quoting Pac. Gas, 461 U.S. at 212), Congress in enacting the PAA assumed that
"state tort law would apply" when someone was injured in a nuclear accident. See id.
at 252, 256. The Court observed that "[n]o doubt there is tension between the
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conclusion that safety regulation is the exclusive concern of the federal law and the
conclusion that a state may nevertheless award damages based on it own law of
liability. But as we understand what was done over the years in the legislation
concerning nuclear energy, Congress intended to stand by both concepts and to
tolerate whatever tension there was between them." See id. at 256.
The defendants emphasize that the Court in Silkwood wrestled with whether
a plaintiff was entitled to a particular remedy under state law and not with whether
state standards of care apply. But the Court spoke about the role of state tort law in
broad terms, stating that "[i]t may be that the award of damages based on the state law
of negligence or strict liability is regulatory in the sense that a nuclear plant will be
threatened with damages liability if it does not conform to state standards, but that
regulatory consequence was something that Congress was quite willing to accept."
See id. So the Court was clear that state-law standards of negligence and strict
liability would continue to play a role in compensating those injured in a nuclear
accident, notwithstanding the federal government's occupation of the field of nuclear
safety.
Congress enacted the PAA's 1988 amendments a few years after the Court
decided Silkwood. And though Congress limited plaintiffs' ability to recover punitive
damages after suffering an injury from a nuclear incident, see 42 U.S.C. § 2210(s),
Congress did not repudiate the Court's understanding of the role that state tort law
plays in a public liability action. In fact, Congress approved it. According to
§ 2014(ii), "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." As one court put
it, § 2014(ii) "merely affords a federal forum when a nuclear incident is 'assert[ed]'
and provides a modest form of conflict preemption once the case is underway: normal
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state law principles continue to govern unless they conflict with the rules found in
§ 2210." See Cook, 790 F.3d at 1095.
The defendants contend that state standards of care are inconsistent with the
PAA and its "underlying policies, backdrop of federal preemption, and surrounding
federal regulatory structure, which includes the federal dose standards." The
defendants appear to be invoking "some brooding federal interest" rather than specific
statutory provisions that conflict with state standards of care. See Kansas v. Garcia,
589 U.S. 191, 202 (2020) (quoting Va. Uranium, Inc. v. Warren, 587 U.S. 761, 767
(2019) (lead opinion of Gorsuch, J.)). One specific provision they do cite is
§ 2021(k)—the Atomic Energy Act provision that they interpret to suggest that states
cannot regulate (absent an agreement with the NRC) radiation hazards. But § 2014(ii)
says that a public liability action is deemed to arise under § 2210, and state
substantive rules of decision are derived from state law unless they are "inconsistent
with the provisions of such section." By using the phrase "such section," Congress
was quite clearly referring to § 2210, and the defendants identify nothing in that
section that even mentions federal dosage regulations, much less an indication that
they take precedence over state standards of care. The defendants essentially ask us
to disregard the plain statutory text and instead consider whether state law conflicts
with other provisions relating to the regulation of nuclear safety, but we aren't at
liberty to rewrite § 2014(ii) as the defendants ask. And the Court in Silkwood has
already explained how exclusive federal regulatory power and state tort law can
operate together.
It's worth mentioning that the NRC itself has said that it doesn't view
compliance with its regulations as a safe harbor from state tort liability. See In the
Matter of A.N. Tschaeche, 23 N.R.C. 461, 463–64 (1986). Though it recognized that
it lacked authority to promulgate rules of evidence for state courts, it also noted the
general principle that "compliance with government safety regulations is accepted as
evidence of a person's having acted reasonably but is not considered conclusive proof
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of the absence of negligence." See id. at 463. So even the NRC doesn't maintain that
federal dosage regulations preempt state standards of care.2
We recognize that other circuits have held that federal law preempts state
standards of care in a public liability action. See, e.g., In re Hanford Nuclear
Reservation Litig., 534 F.3d 986, 1003 (9th Cir. 2008) (collecting cases). We
respectfully disagree with those circuits on this question, as they have not provided
a persuasive reason to disregard § 2014(ii)'s plain text or the Silkwood Court's
discussion of the role that state tort law plays in a public liability action. As Justice
Gorsuch noted in Cook, "Often Congress entrusts before-the-fact regulation to a
federal agency while leaving at least some room for after-the-fact state law tort suits.
It has done so in the field of motor vehicle safety. It has done so in the field of
medical devices. And all the statutory evidence before us suggests it has done the
same thing here." See Cook, 790 F.3d at 1098. So we instead take a path different
from our sister circuits, one lit by the statutory text and Supreme Court guidance.
For the reasons we've given, we agree with the district court's denial of the
defendants' motion to dismiss.
Affirmed.
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2See also Dillon v. Nissan Motor Co., 986 F.2d 263, 270 (8th Cir. 1993)
(affirming that evidence of compliance with federal safety standards was relevant to
a negligence claim) (citing Ward v. City Nat'l Bank & Trust Co., 379 S.W.2d 614, 619
(Mo.1964)); see generally Riegel v. Medtronic, Inc., 552 U.S. 312, 345 (2008)
(Ginsburg, J., dissenting) ("Most States do not treat regulatory compliance as
dispositive, but regard it as one factor to be taken into account by the jury.").
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