UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
 
No. 97-5195

BERTRAM ROBERTS and
HANNI ROBERTS,
Plaintiffs-Appellants,

vs.

FLORIDA POWER & LIGHT COMPANY,
a Florida Public Utility Corporation,
Defendant-Appellee.
 
 

On Appeal from the
United States District Court for the
Southern District of Florida
 
 
BRIEF FOR APPELLANTS
 
Brian Wolfman Raymond W. Valori
David C. Vladeck Ervin A. Gonzalez
Public Citizen Litigation Group
 
Robles & Gonzalez, P.A.
Attorneys for Appellants
Bertram Roberts and Hanni Roberts

March 3, 1998

Bertram Roberts, et al. v. Florida Power & Light, No. 97-5195

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT OF PLAINTIFFS-APPELLANTS BERTRAM ROBERTS AND HANNI ROBERTS

Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1, plaintiffs-appellants state that the following individuals and entities have an interest in the outcome of this case:

Alvin Bruce Davis

Ervin Amado Gonzalez

Britton Guerrina

Robert Harris

Donald E. Jose

Honorable Lenore C. Nesbitt

Bertram Roberts

Hanni Roberts

Public Citizen Litigation Group

Robles & Gonzalez, P.A.

Steel, Hector & Davis

Raymond W. Valori

Page C-1 of 2

David C. Vladeck

David Wiedis

Jose & Wiedis

Brian Wolfman

_________________________

Brian Wolfman

Attorney for plaintiffs-appellants

Page C-2 of 2 March 3, 1998

STATEMENT REGARDING ORAL ARGUMENT
 

Plaintiffs-appellants request oral argument. This appeal presents an important question of first impression in this Circuit--whether the Price-Anderson Act preempts state-law standards of care in tort suits brought to recover damages from operators of nuclear plants. The statutory framework and the governing legal principles are complex, and oral argument will allow the Court to pursue questions it may have after reading the briefs.

 
 
STATEMENT OF JURISDICTION

This case was originally filed in the Circuit Court of the 11th Judicial Circuit, Dade County, Florida. See R. 1-1-1, Defendant's Notice of Removal. Defendant removed the case to the United States District Court for the Southern District of Florida on the ground that the complaint presented federal questions under the Atomic Energy Act and the Price-Anderson Act. See id. The district court had jurisdiction under 28 U.S.C. 1441(a).

By order entered on June 12, 1997, the district court granted defendant's motion to dismiss the complaint, which was a final judgment as to all claims and all parties. R. 1-45. The notice of appeal was timely filed on July 2, 1997. R. 1-46. This Court has jurisdiction under 28 U.S.C. 1291.

RELEVANT STATUTES AND REGULATIONS

The relevant statutes and regulations are contained in an addendum to this brief. Unless otherwise stated, the citations in this brief to statutes and regulations are to those currently in force.

STATEMENT OF THE ISSUE

A "public liability action" is any suit asserting liability from a nuclear incident causing bodily injury, sickness, death, or damage, or loss of property arising out of the hazardous or radioactive properties of nuclear materials. 42 U.S.C. 2014(t), (w), (hh). The issue presented in this appeal is:

In a public liability action brought by a worker to recover damages resulting from his exposure to radiation in the workplace, do the Price-Anderson Act Amendments to the Atomic Energy Act preempt standards of care defined by state tort law?

STATEMENT OF THE CASE

Plaintiff Bertram Roberts suffers from terminal cancer that he alleges was caused by on-the-job radiation exposure at the Turkey Point Nuclear Power plant, operated by the defendant Florida Power and Light Company ("FPL"), where he was employed as an electrician by an FPL contractor, Bechtel Corporation. Mr. Roberts sued FPL in state court. Because this case is a "public liability action" within the meaning of the Price-Anderson Act ("PAA"), 42 U.S.C. 2014(t), (w), (hh), FPL removed the case to federal court. The district court thereafter granted FPL's motion to dismiss on the ground that Mr. Robert's claims are preempted by the PAA, because he did not allege that radiation emissions at Turkey Point exceed the maximum "dose" permitted by federal law. As shown below, the district court erred in holding that federal law preempts Florida law from defining the duty of care that FPL owed to Mr. Roberts.

Because the history and structure of the PAA are critical to understanding how the district court erred in its preemption ruling, in Part A below we review that legislation in detail. Then, in Part B, we address the factual and procedural history of this case.

A. The Price-Anderson Act.

1. Introduction.

The PAA was enacted in 1957 to encourage the development of privately-held nuclear power plants. To overcome private sector reluctance to provide atomic power because of the potential for catastrophic accidents and the unavailability of private insurance to cover liability from such accidents, the PAA provides a system of compensation for claims arising out of nuclear accidents. S. Rep. No. 218, 100th Cong., 1st Sess. 2 (1987), reprinted in 1988 U.S.C.C.A.N. 1477; H.R. Rep. No. 104, 100th Cong., 1st Sess., pt. 1 at 4 (1987). The twin goals of the Act were to ensure that the public would be adequately compensated in case of a nuclear accident and to remove a deterrent to private industry involvement in nuclear energy by limiting private liability for nuclear accidents. Thus, the Act established a system of comprehensive liability insurance for Department of Energy and Nuclear Regulatory Commission ("NRC") contractors and licensees. S. Rep. No. 70, 100th Cong., 1st Sess. 13-14 (1987), reprinted in 1988 U.S.C.C.A.N. 1426-27; see generally Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 64-67 (1978).

The 1957 law had three features. First, it limited the aggregate liability of private nuclear operators under contract with the federal government. Second, it channeled so-called "public liability"--liability arising from nuclear accidents--by providing that any person who might be held liable for an accident would be indemnified by the federal government. Third, it provided that, in cases where claims for public liability exceeded the required level of private insurance, the federal government would indemnify the person held liable. S. Rep. No. 218, supra at 2, reprinted in 1988 U.S.C.C.A.N. 1477.

2. The 1966 Amendments.

In 1966, Congress amended the PAA out of concern that the public be quickly and adequately compensated for injuries resulting from a nuclear accident. The 1966 amendments authorized the Atomic Energy Commission (now the NRC) to coordinate the investigation and settlement of complaints with nuclear liability insurers and provided for the development of a compensation and distribution plan in the event that claims arising out of a nuclear accident exceed the Act's aggregate liability limits. S. Rep. No. 1605, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N. 3201-03.

In addition, the 1966 Amendments contained provisions to simplify and speed-up the system for compensation of public liability claims and ensure uniform treatment of claims arising out of a single nuclear accident. Thus, under the "waiver-of-defenses" provision, 42 U.S.C. 2210(n)(1), defendants in cases involving a large nuclear accident, known as an "extraordinary nuclear occurrence" ("ENO"), could be required to waive any defenses related to (1) the plaintiff's conduct, (2) government or charitable immunity, and (3) the statute of limitations, if the suit was filed within three years of when the plaintiff became aware of his injuries or damages, but no more than ten years after the date of the nuclear incident. See S. Rep. No. 1605, supra, reprinted in 1966 U.S.C.C.A.N. 3201-02; see also S. Rep. No. 218, supra at 2, reprinted in 1988 U.S.C.C.A.N. 1477-78.(1)

The waiver-of-defenses provision allowed claims to be resolved swiftly by requiring an ENO victim "to prove only that he or his property was damaged and that such damage was caused by the nuclear incident." S. Rep. No. 1605, supra, reprinted in 1966 U.S.C.C.A.N. 3209. Although it was widely assumed that most jurisdictions would apply strict liability principles, some jurisdictions purported to reject strict liability. Id. at 3207. The waiver-of-defenses provision ensured that all jurisdictions would apply legal principles similar to strict liability to ENO claims.

The 1966 amendments also created federal jurisdiction for all public liability ENO claims in the district where the accident occurred. This jurisdictional provision allowed both the defendants and the NRC to remove actions pending in state courts or transfer actions pending in other federal courts to the federal district court having venue. Transfer and removal, however, were not mandatory; state courts retained concurrent jurisdiction. Id. at 3215.

The provision for original federal jurisdiction allowed all claims arising out of a single serious nuclear accident to be consolidated in one court. Thus, the presiding court would become familiar with similar issues presented by each claim, and parties could coordinate discovery. Id. at 3215.

3. The 1988 Amendments.

In 1988, the Congress passed another set of PAA amendments. These amendments extended the indemnification system for thirty years; increased the aggregate indemnification level; created an expedited mechanism to allow congressional action for additional compensation; and broadened the scope of the public compensation system to include nuclear waste disposal activities and incidents involving stolen nuclear materials. S. Rep. No. 70, supra at 12, reprinted in 1988 U.S.C.A.A.N. 1427. In addition, the amendments created an independent panel to advise Congress on means of fully compensating victims of nuclear accidents. S. Rep. No. 218, supra at 20-21, reprinted in 1988 U.S.C.C.A.N. 1495-96. The amendments also clarified that lessors of nuclear facilities cannot be held liable for nuclear accidents occurring in the facility and barred awards of punitive damages where the federal government would be liable for them under an indemnification agreement. H.R. Rep. No. 104, supra, pt. 1 at 19. The bar on punitive damages was a direct response to the Supreme Court's decision in Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984)--discussed in greater detail below (at 33-36 & 39-41)--which held that the Atomic Energy Act, as amended by the PAA, does not preempt an award of punitive damages under state tort law arising out of radiation exposure from a nuclear power plant.

In addition, the 1988 amendments included two responses to litigation over the Three Mile Island incident. S. Rep. No. 218, supra at 13, reprinted in 1988 U.S.C.C.A.N. 1488. All of the Three Mile Island claims were originally consolidated in the U.S. District Court for the Middle District of Pennsylvania, where the accident occurred. After the NRC determined that the accident was not an ENO, however, the pending claims were dismissed, because the district court did not have jurisdiction. Id.; H.R. Rep. No. 104, supra, pt. 1 at 18 (citing Stibitz v. GPU, 746 F.2d 993 (3d Cir. 1984), cert. denied, 469 U.S. 1214 (1985)).

To ensure that federal jurisdiction would exist in the future for all public liability claims, not just ENOs, the 1988 amendments broadened the grant of federal jurisdiction to cover all nuclear incidents. See 42 U.S.C. 2210(n)(2); H.R. Rep. No. 104, supra, pt. 1 at 18. Thus, the amendment simply replaced "extraordinary nuclear occurrence" with "nuclear incident" in 42 U.S.C. 2210(n)(2). Id. at 50.

The amendments also defined the term "public liability action," which was included, but not defined, in the 1966 amendment granting federal jurisdiction over claims arising from ENOs. The definition reads 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).

The "provisions" of section 2210, in turn, concern a variety of issues such as indemnification, collection of fees from NRC licensees, and regulatory reports to Congress--none of which relate to the standard of care or tort duties applicable in an individual public liability action. See 42 U.S.C. 2210. Thus, with the exception of section 2210(s)--the provision barring punitive damages in certain circumstances--the 1988 amendments did not limit the level of compensation to be awarded in a public liability action, much less address the substantive standard of care in such an action.

B. Factual And Procedural Background, And The Decision Below.

As noted above, this appeal involves a suit to recover for injuries suffered by plaintiff Bertram Roberts while working at the Turkey Point Nuclear Power Plant, operated by FPL. R. 1, Exh. A, Compl. ¶ 10, Record Excerpts ("RE") Tab 2, at 9-10. Mr. Roberts alleges that he was exposed to radiation in his work as an electrician at Turkey Point for 23 years, from 1966 through 1989. Id. ¶¶ 8-9, RE Tab 2, at 9.

In January 1993, Mr. Roberts was diagnosed with myelogenous leukemia, a type of cancer linked to radiation exposure. Id. ¶ 10, RE Tab 2, at 9-10. Mr. Roberts alleges that the radiation to which he was exposed while working at Turkey Point caused his leukemia. Id. Mr. Roberts' condition is terminal.

Mr. Roberts filed this case on October 10, 1995 in the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida. Id., RE Tab 2. He alleged that, as a result of his exposure to nuclear radiation, he sustained bodily injury, mental anguish, loss of capacity for the enjoyment of life, lost income, and other out-of-pocket expenses. Id. ¶ 19, RE Tab 2, at 12-13. Mr. Roberts maintains that FPL owed a duty of reasonable care to him and his fellow workers at Turkey Point that was breached as a result of FPL's negligence. Id. ¶¶ 14-15, RE Tab 2, at 10-11. Specifically, Mr. Roberts alleged that FPL unreasonably exposed him to more radiation than was necessary, that the company did not help him take precautionary steps, such as buying appropriate clothing, and that FPL did not warn him of the danger of working at the plant. Id. ¶ 15, RE Tab 2, at 11-12. The complaint also contained a strict liability claim, alleging that working with nuclear materials is an abnormally hazardous activity, giving rise to FPL's liability for Mr. Roberts' injuries. Id. ¶¶ 21-30, RE Tab 2, at 13-14. In addition, Mr. Roberts' wife, Hanni Roberts, sought recovery for loss of consortium. Id. ¶ 33, RE Tab 2, at 15.

Because public liability actions such as this one "arise under" federal law--the Price-Anderson Act, see 42 U.S.C. 2014(hh), 2210(n)(2)--FPL removed the case to District Court for the Southern District of Florida pursuant to 28 U.S.C. 1441(a) and 1331. Thereafter, defendant moved to dismiss plaintiff's complaint under Fed. R. Civ. P. 12(b)(6), arguing that the PAA preempts any duty of care defined by state tort law for operators of nuclear power plants. R. 1-3, Motion to Dismiss, RE Tab 3. FPL relied specifically on 42 U.S.C. 2014(hh), which states that substantive law in a public liability 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 [section 2210]." FPL argued that any duty of care defined by state tort law for nuclear facility operators would be inconsistent with radiation dose limits promulgated by the NRC, and that, therefore, those limits preempt state standards of care. FPL did not explain, however, how the Florida common-law duties on which Mr. Roberts relies are inconsistent with any of the provisions of section 2210. Nevertheless, FPL contended that Mr. Roberts' complaint was deficient, based on an alleged failure to plead that the company's plant had exceeded federally-determined radiation dose limits. See R. 1-4.

On June 9, 1997, the district court granted defendant's motion to dismiss. R. 1-45, Order of Dismissal, RE Tab 4. The court held that federal nuclear safety standards preempt the duty of care defined by state tort law, and that, therefore, Mr. Roberts did not state a valid claim because he had not alleged that FPL had exceeded the federal radiation dose limits. R. 1-45-(4-10), RE Tab 4, at 22-28. The district court relied heavily on O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1105 (7th Cir. 1994), and In re TMI Litigation Cases Consolidated II, 940 F.2d 832, 858-66 (3d Cir. 1991), which held that federal nuclear safety regulations establish the standard of care owed by operators of nuclear power plants to their workers at those plants. The district court did not, however, point to any provision of the Atomic Energy Act, or specifically its PAA amendments, that deal with, let alone expressly preempt, state-law standards of care in public liability actions. On July 2, 1997, Mr. Roberts filed this appeal. R. 1-46.

STANDARD OF REVIEW

Because this appeal involves review of the district court's order granting the defendant's motion to dismiss under Rule 12(b)(6), this Court must accept the allegations in the complaint as true, must resolve any factual ambiguities in favor of Mr. Roberts, and may affirm only if it is clear that no relief could be granted under any set of facts consistent with Mr. Roberts' allegations. See, e.g., Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Further, because the district court held that the plaintiffs' state-law tort claims were barred as a matter of law, its ruling is subject to de novo review by this Court. Lohr v. Medtronic, Inc., 56 F.3d 1335, 1341 (11th Cir. 1995).

SUMMARY OF THE ARGUMENT
I.

Federal dose limits for nuclear power plants are not controlling in public liability actions and, thus, the district court erred in dismissing Mr. Roberts' complaint because he did not plead a violation of those limits, but rather sought to rely on a state-law standard of care. Although several courts have held that 42 U.S.C. 2014(hh) preempts state standards of care, that section actually does the opposite: It declares that "the substantive rules for decision in [a public liability] action shall be derived from the law of the State in which the nuclear incident involved occurs." Section 2014(hh) goes on to narrowly preempt state law, where it is "inconsistent" with 42 U.S.C. 2210, which, among other things, sets the PAA's framework for indemnification of plant operators, abrogates certain defenses in public liability actions, and limits aggregate public liability. See 42 U.S.C. 2210(b), (n)(1), (e). Significantly, section 2210 does not mention, let alone alter, state-law standards of care concerning radiation exposure limits or any other topic. In sum, section 2014(hh)--the sole provision relied on by FPL for preemption--explicitly preserves, rather than preempts, Mr. Roberts' claims.

The PAA's legislative history confirms its plain meaning. Prior to the PAA's 1988 amendments, no court had ever held that a personal-injury claim against a nuclear plant operator was preempted by the PAA. Cases such as Mr. Roberts' were governed by state law and, because federal question jurisdiction did not exist, were litigated in state court absent diversity. See Stibitz, 746 F.2d at 995-97. The purpose of the 1988 amendments was to broaden the grant of federal jurisdiction to cover all nuclear incidents, not just catastrophic accidents, but those amendments did not supplant state substantive law. Indeed, consistent with the text of section 2014(hh), "[r]ather than designing a new body of substantive law to govern [public liability actions], . . . the substantive rules for decision [were to] be derived from the law of the state in which the nuclear incident involved occurs." H.R. Rep. No. 104, supra, pt. 1 at 18.

II.

There is no need to inquire into whether federal law impliedly preempts Mr. Roberts' claims. Because Congress spoke with great clarity on the topic of preemption in section 2014(hh), the statutory text provides a "reliable indicium" of congressional intent. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992).

In any event, there is no conflict between the federal radiation dose limits and a tort claim based on a state-law standard of care. The PAA was enacted to "facilitate recovery by plaintiffs," S. Rep. No. 70, supra at 15, reprinted in 1988 U.S.C.C.A.N. 1427, under state substantive law. And although federal dose standards represent the maximum exposure levels for plant workers and the public, a plant operator does not, of course, violate federal law by lowering its radiation emissions below those levels. To the contrary, plant operators are obligated to improve upon the dose limits "to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA)." 10 C.F.R. 20.1101(b). Thus, common-law liability, furthers, rather than undercuts, federal objectives.

Finally, a finding of implied preemption cannot be squared with the Supreme Court's decision in Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), which held that even punitive damages against nuclear plant operators are not preempted, id. at 244, despite compliance with federal regulatory requirements. Silkwood noted the "tension" between exclusive federal governance of nuclear facilities and "the conclusion that a State may . . . award damages based on its own law of liability," but concluded that Congress, in the PAA, was willing to "tolerate whatever tension there was between them." Id. at 256.

III.

Finally, even if federal dose regulations provide the standard of care and thus preempt state law standards of care on that topic, the district court erred in granting the motion to dismiss in its entirety. Mr. Roberts' complaint contains allegations under Florida law on matters unrelated to whether FPL exceeded certain dose levels, such as FPL's failure to advise Mr. Roberts to use protective clothing. See R. 1-1, Complaint ¶ 15, RE Tab 2, at 22-28. As with the dose limit issue, the district court erred here as well, because it failed to apply state "substantive rules for decision" as 42 U.S.C. 2014(hh) demands.

ARGUMENT

The district court's holding--that plaintiffs in public liability actions are required to allege that nuclear power plant operators have breached federal radiation dose limits--is based on a misreading of the plain language of the Price-Anderson Act. The decision below, and those upon which it relies, misconstrue the way in which the provisions of the Act interact with state tort law, and state-defined standards of care in particular.

At the outset, we acknowledge that the lower courts are in conflict on whether federal nuclear safety regulations define the standard of care owed to power plant employees, and thus preempt state tort law standards of care, and that a majority of the precedents support the position taken here by FPL. Compare, e.g., O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1105 (7th Cir. 1994); In re TMI Litig. Cases Consol. II, 940 F.2d 832, 859 (3d Cir. 1991) ("TMI II"); Bohrman v. Maine Yankee Atomic Power, 926 F. Supp. 218, 220 (D. Maine 1996); Coley v. Commonwealth Edison Co., 768 F. Supp. 625, 628 (D. Ill. 1991), with In re Hanford Nuclear Reservation Litig., 780 F. Supp 1551, 1570-72 & n.38 (E.D. Wash. 1991); Cook v. Rockwell Int'l Corp., 755 F. Supp. 1468, 1471 (D. Colo 1991); Building & Constr. Trades Dep't v. Rockwell Int'l Corp., 756 F. Supp. 492, 493 (D. Colo. 1991), aff'd 7 F.3d 1487 (10th Cir. 1993)(Table); see also Nieman v. NLO, Inc., 108 F.3d 1546, 1553 (6th Cir. 1997); Landry v. Florida Power and Light, 799 F. Supp. 94, 96 n.7 (S.D.Fla. 1992), aff'd without opinion, 998 F.2d 1021 (11th Cir. 1993).

A close analysis of the text, history, and purpose of the relevant statutes, however, demonstrates that the PAA preempts only a few specifically enumerated aspects of state tort law and that federal nuclear safety regulations do not form the sole duty of care owed by operators of nuclear power facilities toward their employees. Thus, the judgment below should be reversed and the case remanded for trial.

Although this case is a public liability action that arises under the PAA, it is undisputed that, except where the Act demands otherwise, state law provides the substantive rules for decision. 42 U.S.C. 2014(hh). The principal question here, then, is whether the PAA preempts Florida tort law duties under which Mr. Roberts seeks relief, and, more particularly, whether federal radiation dose regulations set the sole duty of care in public liability actions. Thus, in Part A below, we briefly set forth general preemption principles. In Part B, we show that the PAA expressly preempts only narrow areas of state tort law unrelated to the standard of care applicable to nuclear plant operators. In Part C, we conduct an implied preemption analysis, which further underscores that Congress intended to preserve tort claims based on state-law standards of care. Finally, in Part D, we explain that, regardless of whether the PAA preempts some state-law standards of care, Mr. Roberts' case may go forward. Thus, even if federal maximum dose limits have preemptive effect, they do not constitute the sole standard of care under which Mr. Roberts may recover damages and, therefore, Mr. Roberts may obtain compensation under Florida law on theories unrelated to those limits.

A. Basic Preemption Principles

Before turning to the particular provisions of the PAA relevant to this case, it is important to review the governing preemption principles. First, because of the importance of preserving the proper balance between the states and the federal government, there is a strong presumption against preemption that may only be overcome by "clear and manifest" congressional intent to oust state law. See Wisconsin Public Intervenor v. Mortier, 501 U.S. 595, 605, 611 (1991); Hillsborough County, Fla. v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713 (1985).

Second, this powerful presumption is even stronger where, as here, preemption would displace the traditional power of a state to protect the health and safety of its citizens. See, e.g., Rice v. Sante Fe Elevator Corp., 331 U.S. 218, 230 (1947). And such deference to state prerogatives is at its zenith in a case such as this one, where the federal law upon which the defendant relies for preemption does not aggrandize federal power, but rather cedes power to the states by explicitly adopting their substantive law. See 42 U.S.C. 2014(hh).

Third, where a finding of preemption of common-law claims would leave the injured parties without any state or federal remedy, as concededly is the effect on Mr. Roberts of the district court's ruling here, a court may ascribe preemptive intent to Congress only in the most compelling circumstances. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251 (1984).

Federal law may preempt state laws and regulations in one of two ways. Congress may expressly preempt state law by enacting a preemption clause. Where such a clause exists, courts must construe the statute to determine the exact scope of state law that is preempted. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992).

Even where state law is not expressly preempted by Congress, state law may be impliedly preempted by the structure and operation of federal legislation. If a federal statute includes an express preemption clause, however, as the PAA does here, it is generally presumed that Congress has spoken on the topic of preemption, leaving little or no room for further implied preemption of state law. Id. at 517.

Implied preemption analysis takes two basic forms. Where Congress has so completely occupied a particular field that there is no room left for state regulation, state law is preempted. Rice, 331 U.S. at 230. The fact that federal regulation is "comprehensive," however, is not enough to preempt state law, Hillsborough County, 471 U.S. at 718; Medtronic, Inc. v. Lohr, 116 S. Ct. 2240, 2261 (1996) (Breyer, J., concurring in part and concurring in the judgment); rather, the text and structure of the congressional legislation must itself evince an intent to occupy the entire field. For example, the exhaustive federal regulation of medical devices, Medtronic, 116 S. Ct. 2240, pesticides, Wisconsin Public Intervenor, 501 U.S. 595, automobile safety, Freightliner Corp. v. Myrick, 115 S. Ct. 1483 (1995), or, as in this case, nuclear energy, Silkwood, 464 U.S. 238, is not sufficient to impliedly preempt all state law in those areas.

State law may also be impliedly preempted where it directly conflicts with federal law. Thus, state law must give way where compliance with both state and federal law is physically impossible, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or stands as an obstacle to federal legislative objectives. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

B. The PAA Does Not Expressly Preempt Mr. Roberts' Claims.

1. The Text Of The PAA Preserves, Rather Than Bars, Mr. Roberts' Claims.

In concluding that federal law provides the exclusive duty of care in public liability actions, and thus preempts a state-law tort action premised on any other duty of care, the district court relied on 42 U.S.C. 2014(hh), the only part of the PAA that addresses preemption of state law. Because the "touchstone" of any preemption analysis is congressional intent, Cipollone, 505 U.S. at 516, we turn first to the text of section 2014(hh), which provides:

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. (emphasis added).

The most striking feature of section 2014(hh) is that, in the main, it is an anti-preemption provision. It makes clear that, by and large, state law is not preempted, but rather provides "the substantive rules for decision," and is only preempted to the extent that it is "inconsistent" with 42 U.S.C. 2210. Therefore, to understand the preemptive scope of the PAA, it is necessary to look carefully at section 2210 to determine the precise subject matters of that section. As we show below, section 2210 has nothing to do with setting the duty of care in public liability actions or establishing federal radiation dose limits, which are the only types of subject matter that might be considered "inconsistent" with Mr. Roberts' Florida causes of action.

Before examining section 2210, we note that it is in this regard--the interpretation of the last clause of section 2014(hh)--in which several courts, including those upon which the district court relied, have erred. Those courts have misconstrued section 2014(hh), in holding that state law is preempted to the extent that it is inconsistent with the PAA, TMI II, 940 F.2d at 858, or federal law regarding nuclear safety in general. O'Conner, 13 F.3d at 1100-01; see also Nieman, 108 F.3d at 1553. This construction is demonstrably at odds with the plain language of the preemption provision. Section 2014(hh) does not refer to the PAA, nor does it refer generally to federal law and regulations in the field of nuclear safety.

Had Congress in fact intended to displace state standards of care, it would have chosen a far broader formulation of the preempted field. Instead, the provision adopts state substantive law in all public liability actions arising under section 2210, and then states that state law is preempted only to the extent that it is inconsistent with "such section." As section 2210 is the only provision mentioned in section 2014(hh), it is the only section to which the phrase "such section" can reasonably apply. See, e.g., Lujan v. Regents of University of California, 69 F.3d 1511, 1518 (10th Cir. 1995) (indicating that "inconsistent with" language refers only to section 2210); Coley, 768 F. Supp. at 628 (replacing "such section" with "§ 2210" in quoting 42 U.S.C 2014(hh)). If Congress intended to preempt state tort law in public liability actions more generally--and give preemptive effect to the entire body of federal law involving nuclear safety, including dose regulations--it would have so stated.

Turning to the field of potential preemption, section 2210 establishes the insurance and indemnification scheme that ensures that funds will be available to compensate victims of a nuclear incident. In a few areas--none of which are applicable here--Congress departed from state tort law: the limitation on aggregate public liability, section 2210(e); the waiver of defenses provision, requiring NRC licensees to waive defenses based on state statutes of limitations, some types of plaintiff conduct, and government or charitable immunity, section 2210(n)(1); the limitation on the liability of lessors of nuclear facilities, section 2210(r); and the limitation on punitive damages, where the United States is obligated to make payments under an indemnity agreement, section 2210(s). Other than these provisions, elements of state tort law are not mentioned in section 2210.(2)

Not surprisingly, therefore, the occupational dose limits upon which FPL relies for preemption, see 10 C.F.R. 20.1201 et. seq., gain their authority not from the PAA--which provides a system of insurance to compensate people injured by radiation--or from section 2210 in particular. Rather, as the NRC has explained, the dose limits are authorized by provisions of the Atomic Energy Acts of 1946 and 1954. See 10 C.F.R. Part 20, at p. 284 (1997) (citing 42 U.S.C. 2073, 2093, 2095, 2111, 2133, 2134, 2201, 2232, 2236 as "Authority").

In sum, under a plain reading of the statutory language, because section 2210 does not govern the standard of care owed by nuclear facilities operators toward the public and their employees, much less federal radiation dose limitations, section 2014(hh) does not preempt Mr. Roberts' lawsuit.

2. The PAA's Legislative History Confirms Mr. Roberts' Position.

Because the text of the PAA is clear, leaving no doubt that state standards of care are not preempted, there is no need to consult the Act's legislative history. See, e.g., Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993). In any event, the legislative history of both the 1966 and 1988 amendments to the PAA confirm the Act's plain meaning. The overriding purpose of the two sets of amendments was to ensure that federal courts would have jurisdiction over claims arising from nuclear incidents, not that federal substantive law would apply. Thus, the congressional committee that drafted the amendment defining "public liability action" explained "that any [public liability] action arises under the Price-Anderson Act for purposes of Federal court jurisdiction," making no mention of a need to preempt state-law liability duties. H.R. Rep. No. 104, supra, pt. 1 at 29 (emphasis added).

Indeed, in passing the 1966 amendments, Congress explicitly decided not to enact substantive law (i.e., a new body of federal tort law). S. Rep. No. 1605, supra, reprinted in 1966 U.S.C.C.A.N. 3209. The Senate Atomic Energy Committee described the legislative scheme as follows:

This approach to the problems discussed above is in keeping with the approach followed in enacting the original Price-Anderson Act--namely, interfering with State law to the minimum extent necessary. In essence, the plan adopted permits the retention of State law with respect to the cause of action and the measure of damages, but the requirements specified for the insurance contracts and the indemnity agreements provide the uniform rules needed to accomplish the bill's objectives. . . . [T]his is not a measure designed either to accomplish a general revision of American tort law or to set precedents for activities in other fields.

Id. (emphasis added).

In 1988, Congress again declined to create a federal tort based on federal substantive law. "The [1988] amendment was not intended to alter the state law nature of the underlying tort." Day v. NLO, Inc., 3 F.3d 153, 154 (6th Cir. 1993); see H.R. Rep. No. 104, supra, pt. 1 at 18 ("Rather than designing a new body of substantive law to govern [public liability actions], however, the bill provides that the substantive rules for decision shall be derived from the law of the state in which the nuclear incident involved occurs"). Instead, Congress merely broadened the grant of federal jurisdiction to cover all nuclear incidents (not just ENOs). See supra at 7. Thus, the reports of the House committees considering the 1988 amendments state that "[l]iability is determined under applicable state tort law." H.R. Rep. No. 104, supra, pt. 1 at 5 (emphasis added); see also id. at 16 ("This provision is not intended to create liability for precautionary evacuation expenses where no liability exists under state tort law, but only to provide compensation where such liability is established in accordance with state tort law") (emphasis added); H.R. Rep. No. 104, supra, pt. 3 at 15 ("If an accident is not an ENO, the strict liability standard does not apply, and claims must be brought under the standard of proof specified by state tort law") (emphasis added); id. at 16 ("[L]iability is determined according to applicable state tort law") (emphasis added). The Senate committees considering the 1988 amendments similarly emphasized the preeminence of state, not federal, law. See S. Rep. No. 70, supra at 20, reprinted in 1988 U.S.C.C.A.N. 1433 ("This provision [paragraph 170.d(7) of the 1988 Amendments Act] specifies the source of indemnification payments for damage claims approved under the usual state tort procedures applicable to claims to be compensated under the Price Anderson Act") (emphasis added); S. Rep. No. 218, supra at 13, reprinted in 1988 U.S.C.C.A.N. 1488 ("[T]he substantive law of decision shall be derived from the law of the State in which the incident occurred").

Earlier, when Congress considered the 1966 amendments, it emphasized that state law was to remain largely untouched: "Since its enactment by Congress in 1957 one of the cardinal attributes of the Price-Anderson Act has been its minimal interference with State law. Under the Price-Anderson system, the claimant's right to recover . . . is left to the tort law of the various States." S. Rep. No. 1605, supra, reprinted in 1966 U.S.C.C.A.N. 3206 (emphasis added). It is difficult to imagine greater interference with state law than the interference championed by FPL here: the obliteration of state standards of care for tort liability. Of course, a defendant's compliance with federal regulations might be a factor for the jury's consideration under state law. See Restatement (Second) of Torts § 288(c) (1965). Indeed, Congress noted that "[j]ust as the rights of persons who are injured are established by State law, the rights of defendants against whom liability is asserted are fixed by State law." S. Rep. No. 1605, supra, reprinted in 1966 U.S.C.C.A.N. at 3226 (emphasis added).

Thus, where Section 2014(hh) declares that state law is applicable in any public liability action, "unless inconsistent with the provisions of [Section 2210]," it refers only to the modest federal-law incursions discussed above. As the statutory text makes clear, with a few explicit exceptions not applicable here, state law provides the substantive duties for all tort suits arising out of nuclear incidents.

C. Federal Law Does Not Impliedly Preempt State-Law Standards Of Care In Public Liability Actions.

1. Implied Preemption Analysis Is Not Appropriate Here Because The PAA Provides A "Reliable Indicium" Of Congressional Intent.

Permitting Mr. Roberts' suit to go forward would neither create a conflict between federal and state law nor invade a sphere exclusively occupied by the federal government. Before explaining why that is so, we turn to a threshold point that, in our view, is dispositive.

Ordinarily, if Congress has expressly preempted a domain of state law, implied preemption analysis is applicable in only the most limited circumstances. Cippolone, 505 U.S. at 517; Freightliner, 115 S. Ct. at 1488. Congress is presumed to carry out its policies through the text of enacted legislation. Thus, where it has expressly addressed preemption of state law in a particular provision of an Act, that provision is assumed to be a "reliable indicium" of congressional intent. Cipollone, 505 U.S. at 517. Although this presumption "does not . . . entirely foreclose[] any possibility of implied preemption," Freightliner, 115 S. Ct. at 1488, an "express definition of the pre-emptive reach of a statute implies--i.e., supports a reasonable inference--that Congress did not intend to pre-empt other matters." Id. This fidelity to legislative text is merely a variant on the doctrine expressio unius est exclusio alterius. Cipollone, 505 U.S. at 518. Put in ordinary English: If Congress addresses a topic one way in a statute, a court should resist an invitation to infer a different or contrary intent on that same topic.

As shown above, only one provision of the PAA--section 2014(hh)--addresses preemption of state law in public liability actions, and it does not preempt state-law standards of care. There is no reason to believe that Congress intended any further preemption of state tort law, and that ought to be the end of the matter. Indeed, there are two related reasons why the express preemption analysis here provides an even more "reliable indicium" of congressional intent than in the ordinary preemption case.

First, as noted earlier, section 2014(hh) is, in the main, an anti-preemption provision. It directs the courts to apply state substantive law. This case is thus a far cry from the ordinary preemption case, where the principal purpose of the statutory provision under scrutiny is to oust state law. See, e.g., Medtronic, 116 S. Ct. at 2248; Freightliner, 115 S. Ct. at 1486; Cipollone, 505 U.S. at 514; cf. Wisconsin Public Intervenor, 501 U.S. at 606-10 (relying on Congress' express preservation of state and local regulation to narrowly interpret preemption provision). To the contrary, the express purpose of section 2014(hh) is to preserve state law. Indeed, Congress knowingly chose not to create a new federal tort with its own substantive law. See H.R. Rep. No. 104, supra, pt. 1 at 18. Instead, it modified existing state tort law in specific areas to accomplish its goals. As one Senate committee explained:

[E]nactment of a Federal tort would require consideration of such matters as proof of damages and causation, and the possibility of continued validity of some portion of State law. This bill, on the other hand, seeks to isolate and deal effectively with certain problem areas in existing State and Federal law, leaving undisturbed the remaining body of law."

S. Rep. No. 1605, supra, reprinted in 1966 U.S.C.C.A.N. 3210. Where state tort law principles conflicted with the goals of national nuclear policy, section 2014(hh), through its incorporation of 42 U.S.C. 2210, made specific, explicit changes in the law: the waiver of defenses for ENOs; the limitation on aggregate public liability, the bar on liability of lessors of nuclear facilities, etc. Thus, section 2014(hh) itself declares adherence to the rule of expressio unius est exclusio alterius and demands that no further incursions on state tort law take place.

Second, the conclusion that section 2014(hh) provides a "reliable indicium" of congressional intent regarding state-law standards of care is underscored by that section's particular language. It does not simply say that state law is controlling, but says so in a particular way: that state law provides "the substantive rules for decision." This language is reminiscent of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 71 (1938), and the Rules of Decision Act, 28 U.S.C. 1652--two pillars of our system of federalism--and demonstrates the great deference that Congress accorded to the states in fashioning rules for liability in tort cases involving nuclear power. The result sought by FPL here is no small incursion on state prerogatives, but an eradication of the core component of the plaintiff's state-law cause of action: the substantive duties of care for determining liability. If, as FPL claims, every federal statute and regulation on every topic of nuclear safety replaces state-law standards of care applicable to each of those topics, that would have worked a wholesale displacement of state law. If Congress meant to obliterate state law so dramatically, it certainly would not have adopted state "substantive rules for decision," subject to the narrow exclusions in section 2210. In short, in light of the carefully delineated anti-preemptive scheme of section 2014(hh), there is no room for implied preemption here.

2. There Is No Conflict Between Federal Law And State Tort Law.

(a) State-Law Liability Would Not Frustrate The Purposes Of Federal Law.

In conducting their implied preemption analysis, some courts have focussed exclusively on Congress' goal of encouraging the development of nuclear energy. See, e.g., O'Conner, 13 F.3d at 1105. Those courts, however, have largely ignored the fact that, in passing the PAA, Congress also intended to ensure both that the public is adequately protected and that persons injured by nuclear radiation would be swiftly and sufficiently compensated. The PAA was never intended to shield defendants from liability. To the contrary, Congress made it easier for plaintiffs to collect compensation for their injuries. For example, the waiver-of-defenses provision was intended to "facilitate recovery by plaintiffs." S. Rep. No. 70, supra at 15, reprinted in 1988 U.S.C.C.A.N. 1427. "From the public's point of view, the surrender of the ordinary right to unlimited liability is offset by several other departures from normal tort law designed to ease the plaintiff's burden of proof and facilitate recovery of damages." H.R. Rep. No. 104, supra, pt. 3 at 14.

Given this strategy, it defies logic to suggest that Congress would block plaintiffs injured by radiation from being compensated just because the level of radiation to which they were exposed was less than the maximum dose defined in NRC regulations. This construction of the statute flies in the face of the congressional strategy of removing barriers in order to make it easier for injured plaintiffs to be compensated.

Furthermore, rather than conflict with the congressional purpose behind federal nuclear safety standards, state standards actually further Congress' goals of protecting public health and safety. State standards of care provide another incentive for nuclear power plant operators to decrease the levels of radiation emitted at their plants. Judge Scirica made a similar point in dissent in TMI II:

Given this fact [that the waiver provisions create a sort of strict liability for ENOs], it is doubtful that Congress intended to forbid states from imposing strict liability for non-extraordinary nuclear incidents. If Congress intended to permit strict liability, it could be argued that it also intended to permit the less intrusive option of fault-based standards of care that are more stringent than federal regulations.

TMI II, 940 F.2d at 870 n.3 (Scirica, C.J., dissenting).

In any event, the question whether conflict preemption applies here to preempt state-law tort standards regarding dose limitations was definitively answered by the Supreme Court's decision in Silkwood v. Kerr-McGee. In that case, the plaintiff--like Mr. Roberts here--was a nuclear power plant employee who sought damages relating to injuries sustained from radiation exposure at the plant. The defendant, like FPL here, argued that the entire action was preempted by, among other things, the federally-determined maximum dose levels. Silkwood v. Kerr-McGee Corp., 485 F. Supp. 566, 572-77 (W.D. Okla. 1979). The jury awarded both compensatory and punitive damages, and in a lengthy opinion on a post-trial motion, the lower court emphatically rejected the defendant's argument that federal radiation dose levels were controlling and that, therefore, any different state-law liability rules were preempted. Id. at 577 (rejecting defendant's preemption argument that "principles of state law . . . apply only if a violation of the federal regulations is first demonstrated"). The Tenth Circuit affirmed in part and reversed in part the jury's compensatory award on non-preemption grounds, but held that an award of punitive damages was preempted on the ground that it would improperly punish the defendant contrary to federal interests in regulating nuclear emissions. Silkwood v. Kerr-McGee Corp., 667 F.2d 908, 922-23 (10th Cir. 1981).

The Supreme Court granted certiorari on the punitive damages question. In briefing before the High Court, even the plaintiff could not claim that the maximum radiation exposure levels had been exceeded. See Brief for Appellant Karen Silkwood at 9, Silkwood v. Kerr-McGee Corporation, No. 81-2159 (U.S. filed Apr. 27, 1983); see also Brief for Appellee Kerr-McGee Corp. at 5-6, Silkwood v. Kerr-McGee Corporation, No. 81-2159 (U.S. filed June 29, 1983). And, significantly, the defendant renewed its argument that without preemption state-law jury instructions "would invite[] the jury to award punitive damages irrespective of Kerr-McGee's compliance with [federal] AEC regulations." Brief for Kerr-McGee Corp. at 34.

Nevertheless, the Supreme Court reversed, holding that, even with respect to punitive damages, the plaintiff's claims were not preempted. Silkwood, 464 U.S. at 250-58. The Court so held despite its acknowledgement that the defendant had in many respects complied with federal regulations, including federal requirements concerning radiation exposure levels. Id. at 244. The dissenting justices specifically pointed to the defendant's compliance with federal regulations, including dose standards, as a justification for preemption of punitive damages only. Id. at 261-62 & nn.2-5 (Blackmun, J., dissenting) (citing federal regulations, including dose standards); see also id. at 276-77 (Powell, J., dissenting). Indeed, all nine Justices agreed that, with respect to compensatory damages, such as those sought by Mr. Roberts here, there was no preemption of any state-law cause of action. See id. at 275-756 & n.3 (Powell, J., dissenting); id. at 263-64 & n.12 (Blackmun, J., dissenting). On that score, the Court was thus unanimous that there was no conflict between federal and state law.

As noted earlier, as part of the 1988 amendments, Congress partially overruled the decision in Silkwood and barred punitive damages where the federal government would be liable for them under an indemnification agreement. Congress did not, however, say a word about limiting compensatory damages in any circumstance, let alone in cases where the defendant had complied with federal radiation exposure limits, the very topic that the defendant in Silkwood had argued, without success, should absolve it from all liability. See Silkwood v. Kerr-McGee Corp., 485 F. Supp. at 576-77. Indeed, the only post-Silkwood change to the PAA in 1988 having anything to do with compensatory tort liability--section 2014(hh)--specifically preserves state law "rules of decision." Thus, Silkwood is dispositive on the question presented here.

(b) Compliance With Both State And Federal Law Is Not Physically Impossible.

It is not impossible for nuclear plant operators to comply with both the federal safety standards and state-defined duty-of-care standards. First of all, a verdict in favor of Mr. Roberts under Florida common law would not require FPL to meet radiation dose standards different from those set by federal law. Rather, FPL could simply choose to pay damages and continue its radiation dose at the same level. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 186 (1988) (Ohio worker's compensation award to worker at nuclear products facility not preempted: "Appellant may choose to disregard Ohio safety regulations and simply pay an additional workers' compensation award if an employee's injury is caused by a safety violation"); Silkwood, 464 U.S. at 256 (even if an "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, . . . that regulatory consequence was something that Congress was quite willing to accept"); California v. Arc Am. Corp., 490 U.S. 93, 105 (1989) ("Ordinarily, state causes of action are not pre-empted solely because they impose liability over and above that authorized by federal law") (citing Silkwood, 464 U.S. at 257-58).

Second, even assuming that a damages verdict based on state-law standards of care would "require" FPL to adopt dose standards more protective than the federal limits, FPL would still not be subject to any "physical impossibility," Florida Avocado Growers, 373 U.S. at 143, since FPL's compliance with a more stringent state-law standard of care would not violate federal law. In fact, the federal regulations for nuclear safety set two different standards dictating acceptable levels of radiation exposure. The regulations set maximum permissible dose limits, which form a ceiling marking the extreme end for exposure levels permitted by the NRC. 10 C.F.R. 20.1201(a). The federal regulations also set a flexible standard for radiation exposure, and it is this standard that nuclear facilities operators are to attain: "The licensee shall use, to the extent practicable, procedures and engineering controls based upon sound radiation principles to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA)." 10 C.F.R. 20.1101(b) (emphasis added); see also Silkwood, 464 U.S. at 243 & n.6 (describing ALARA); 10 C.F.R. 20.1003 (defining ALARA). The ALARA standard, unlike the maximum permissible dose standard, is flexible and changes according to the state of nuclear and safety technology and "other socioeconomic considerations." See 10 C.F.R. 20.1003. What may be unpractical or prohibitively expensive one day may become feasible the next; therefore, it would be unreasonable for a nuclear power plant operator not to use the new technology, safety procedures, or equipment, even if NRC rulemaking to toughen its maximum dose standards lagged behind. For present purposes, regardless of which standard is applied, it is not impossible for nuclear facilities operators to comply with both a state-defined standard of care and the federal nuclear safety regulations.

(c) Federal Law Does Not "Occupy The Field" Of Nuclear Safety.

In light of the broad role played by state tort law under the PAA, displacement of Florida common-law standards of care cannot be justified on the ground that federal law "occupies the field" of nuclear safety. Nonetheless, several courts, including apparently the district court here (R.1-45-(7-9), RE Tab 4, at 25-27), have come to the opposite conclusion. Those courts have relied on the Supreme Court's holdings in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S. 190 (1983), and Silkwood for the proposition that federal laws and regulations so completely occupy the field of nuclear safety that there is no room for state regulations, but have failed to distinguish between those two very different decisions. TMI II, 940 F.2d at 859; O'Conner, 13 F.3d at 1104.

To be sure, in Pacific Gas, the Court intimated that there was no room for state regulation of nuclear safety. 461 U.S. at 205. However, the very next Term, Silkwood held that the preemptive effect of the PAA should "not be judged on the basis that the federal Government has so completely occupied the field of nuclear safety that state remedies are foreclosed." 464 U.S. at 256 (emphasis added). To the contrary, the Court said that

it is clear that in enacting and amending the Price-Anderson Act, Congress assumed that state-law remedies, in whatever form they might take, were available to those injured by nuclear incidents. This was so even though it was well aware of the NRC's exclusive authority to regulate safety matters. No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its 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. We can do no less. It 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.

Id. (emphasis added); see also Goodyear Atomic, 486 U.S. at 186 (characterizing Silkwood: "Congress was willing to accept regulatory consequences of application of state tort law to radiation hazards even though direct state regulation of safety aspects of nuclear energy was pre-empted").

Thus, whatever Pacific Gas may have said about the federal government's occupation of the field of nuclear safety, Silkwood controls here and demonstrates that state tort duties of care remain intact. First, the facts in Silkwood are directly analogous to those at issue here, where a worker sues a power plant operator under state law for exposure to radiation. 464 U.S. at 241-43. Pacific Gas, on the other hand, involved a California statute imposing requirements for nuclear waste storage capacities. 461 U.S. at 197. Second, Pacific Gas did not interpret the PAA; it construed only the Atomic Energy Act. Id. at 194. Silkwood, on the other hand, relied on the history of the PAA and its amendments to reach its holding. 464 U.S. at 251-52. In addition, the majority's statements in Pacific Gas that the federal law completely occupies the field of nuclear safety are dicta because they were not necessary to the Court's holding. 461 U.S. at 223-24 (Blackmun, J., dissenting). Finally, given the result in Silkwood, that even a $10 million punitive damages award--20 times more than the compensatory award, see 464 U.S. at 245--was not preempted by the federal government's interest in nuclear power, state-law