Lawson v. Gen. Elec. Co.
Lawson v. Gen. Elec. Co.
Opinion of the Court
Plaintiffs Steven Lawson ("Mr. Lawson") and Darla Lawson (collectively, "Plaintiffs") bring this public liability action against General Electric Company ("GE") under the Price-Anderson Act,
I. BACKGROUND
A. Factual Background
Prior to his retirement, Mr. Lawson was a highly skilled welder employed by The Great Atlantic Pacific Pipe Welding & Construction Company, Inc. ("GAPCO"). GAPCO was created as a wholly owned subsidiary of Dimetrics, a company formed by Mr. Lawson's father-in-law to do business in the welding industry.
From 1979 through 1986, Mr. Lawson performed welding work on Boiling Water Reactors ("BRW") that were designed and manufactured by GE for use in nuclear power plants. Mr. Lawson worked on *982BWRs installed in nuclear power plants located in California, New York, New Jersey, Connecticut, Pennsylvania, North Carolina, Illinois, Nebraska, Alabama, and Vermont. Mr. Lawson also performed welding work on a BWR located in Spain.
The purpose of Mr. Lawson's work was to address and repair intergranular stress corrosion cracking that had developed in pipes attached to the BWRs.
Each power plant where Mr. Lawson worked was owned and operated by a "Licensee." The term Licensee is this context refers to the utility that applied for and received a license from the Nuclear Regulatory Commission ("NRC") to operate a commercial nuclear power plant. Def.'s SOMF ¶ 4. GE was not the Licensee of any of the power plants where Mr. Lawson worked. GE has produced a list of the Licensees for all of the power plants where Mr. Lawson worked. The list was compiled from publically available documents maintained by the NRC. Plaintiffs' First Amended Complaint ("FAC") alleges that GE was a Licensee or otherwise maintained ownership or control over the relevant nuclear power plants or BWRs. FAC ¶¶ 9, 11, 14, 16, 19, 22, 40. Despite these allegations, Plaintiffs do not presently dispute that GE was not the Licensee of any of the power plants where Mr. Lawson worked.
The Licensees of the power plants where Mr. Lawson worked were responsible for hiring the various companies to complete the weld overlay and pipe replacement projects on the BWRs. The Licensees coordinated the projects through prime contractors, which in turn hired specialty subcontractors-including GAPCO-to perform specific maintenance activities. GE's role in repairing the BWRs was to ensure that the welds completed by Mr. Lawson and other GAPCO employees complied with relevant industry standards. GE also generally supported various aspects of the welding projects at the power plants where Mr. Lawson worked. GE initially contacted Dimetrics because the company had developed automated welding equipment that could remotely complete the welds on the BWRs. GE provided Dimetrics with weld specifications and Dimetrics developed the necessary procedures and protocols for its automated welding equipment. Dimetrics then contracted directly with the various prime contractors to provide the automated welding equipment. GAPCO was hired directly by the prime contractors to provide supervisors, such as Mr. Lawson, who had the expertise to use Dimetric's automated welding *983equipment, as well as other qualified workers to complete the BWR welding projects.
Plaintiffs' FAC alleges that GE failed to take the necessary precautionary measures to ensure that Mr. Lawson was not exposed to an amount of radiation in excess of federal permissible radiation dose limits
B. Procedural Background
Plaintiffs filed their initial complaint against GE in the Northern District of California on May 28, 2015. In their initial complaint, Plaintiffs set forth six causes of action against GE: (1) Negligence; (2) Strict Liability for Ultra Hazardous Activities; (3) Strict Liability Manufacturing and Design Defect; (4) Premises Liability; (5) Negligence Per Se; and (6) Loss of Consortium. In response, GE filed a motion to dismiss based on two separate grounds: (1) Plaintiffs' six state claims were preempted by the Price-Anderson Act; and (2) the court lacked subject matter jurisdiction.
In its September 23, 2015 Order, the court granted in part and denied in part GE's motion to dismiss. As an initial matter, the court considered whether Plaintiffs' complaint alleged a "public liability action" as defined by the Price-Anderson Act. The court stated that "[u]nder the Price-Anderson Act, a public liability action is 'any suit asserting public liability,' " with public liability defined as "any legal liability arising out of or resulting from a nuclear incident." Lawson v. Gen. Electric Co.,
Next, the Court held that Plaintiffs' state law claims were preempted by the Price-Anderson Act because they were based on theories of liability that are inconsistent with the duty of care set by the applicable federal permissible dose limits. In reaching this decision, the court noted that:
Courts have interpreted the effect of the Price-Anderson's "hybrid" provision as allowing state claims to proceed, but only so long as the measure of the Defendant's duty is proscribed by federal safety regulations setting forth radiation exposure limit. The dose limits are an attempt to reconcile public and worker safety with the inevitable reality that "radiation workers of necessity will receive *984some low level radiation exposure because some exposure in an unavoidable aspect of working in a radiation area."
Following the court's dismissal of the state law claims, Plaintiffs filed their FAC alleging two causes of action: (1) a public liability action under the Price-Anderson Act; and (2) a state law negligence claim. Both causes of action alleged that GE breached the applicable federal permissible dose limits. However, Plaintiffs' negligence claim also alleged theories of liability based on negligence per se. See FAC ¶ 41. In response, GE filed a motion to strike this portion of the FAC.
The court granted GE's motion to strike, holding that Plaintiffs' "negligence per se theories of liability alleging a duty of care other than the regulations proscribing radiation exposure limits are preempted by the Price-Anderson Act." Lawson v. Gen. Electric Co., 15-CV-02384-TEH,
On February 29, 2016, GE filed a motion to transfer venue under
II. DISCUSSION
A. Standard of Review
"Summary judgment is appropriate when 'the movant shows that there is *985no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' " Northfield Ins. Co. v. City of Waukegan,
B. The Price-Anderson Act
Congress enacted the Price-Anderson Act in 1957 for the purpose of "protect[ing] the public and...encourag[ing] the development of the atomic energy industry."
"In 1966, prior to the scheduled expiration of the Price-Anderson Act, the liability limitation portions of the Act were extended for an additional ten years and a new provision was added which required that those indemnified waive the defenses of negligence, contributory negligence, charitable or governmental immunity, and assumption of the risk in the event of an action arising as the result of an extraordinary nuclear occurrence." In re TMI Litig. Cases Consol. II,
The Price-Anderson Act was amended for a second time in 1975. "These amendments extended the Act's coverage and made certain liability limitation adjustments. Provision was [also] made to phase out the federal indemnity portion of the Price-Anderson scheme."
In 1988, Congress amended the Price-Anderson Act for a third time with the Price-Anderson Amendments Act of 1988 (the "Amendments Act"). The Amendments Act made a number of comprehensive changes to the Price-Anderson Act.
*986Most pertinent to the case at hand, "the Amendments Act expanded the reach of
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. Process of such district court shall be effective throughout the United States.
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.
"While the public liability cause of action itself and certain elements of the recovery scheme are federal, the underlying rules of decision are to be derived from state law." TMI,
C. GE Did Not Owe Mr. Lawson a Duty of Care Because GE Was Not the Licensee of the Power Plants Where Mr. Lawson Worked
Previous to the transfer of this case, the district court for the Northern District of California held that Plaintiffs' state law negligence claim served as the basis for their public liability action. Lawson,
*987("[T]he substantive rules for decision in such action shall be derived from the law of the State in which the nuclear incident involved occurs."). Thus, Plaintiffs must "establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach." Simpkins v. CSX Transp., Inc.,
Plaintiffs' assert that GE had a duty to protect Mr. Lawson from occupational radiation exposure in excess of the applicable federal permissible dose limits. As previously held, the sole duty of care in the case is "provided by Title 10 of the Code of Federal Regulations." Lawson,
The dispositive issue before the Court is whether Part 20 dose limits-being the sole duty of care-apply to GE. In other words, the issue is whether GE owed Mr. Lawson a duty of care to comply with Part 20 dose limits. GE argues that there is a preemptive and pervasive federal regulatory scheme governing the safety and operation of nuclear power plants, as set forth under
1. Part 20 Dose Limits Apply Only to Licensees
The Court starts its analysis by examining the language of the Part 20 dose limits. The regulation reads as follows:
§ 20.101 Radiation Dose Standards for Individuals in Restricted Areas
(a) In accordance with the provisions of § 20.102(a), and except as provided in paragraph (b) of this section, no licensee shall possess, use, or transfer licensed material in such a manner as to cause any individual in a restricted area to receive in any period of one calendar quarter from radioactive material and other sources of radiation a total occupational dose in excess of the standards specific in the following table:
REMS PER CALENDAR QUARTER
1. Whole body; head and trunk; active blood-forming organs; lens of eyes, or gonads ... 1¼
2. Hand and forearms; feet and ankles ... 18¾
3. Skin of whole body ... 7½
(b) A licensee may permit an individual in a restricted area to receive a total occupational dose to the whole body greater than that permitted under paragraph (a) of this section provided: (1) During any calendar quarter the total occupational dose to the whole body ... shall not exceed 3 rems.
Consistent with GE's argument, section 20.101 uses language such as "no licensee shall" and "a licensee may," which indicates that the Licensee alone bears the duty to protect nuclear workers in restricted areas from excessive doses of radiation. Further provisions of Part 20 confirm that this duty is owed only by the Licensee. Section 20.102 addresses the "Determination of Prior Dose" and states that "each licensee shall " require an individual to report his prior occupational dose "prior to first entry of the individual into the licensee's restricted area." 10 C.F.R. 20.102(a) (emphasis added). Section 20.102 further provides that:
Before permitting, pursuant to § 20.101(b), any individual in a restricted area to receive an occupational radiation dose in excess of the standards specified in § 20.101(a), each licensee shall : (a) Obtain a certificate on Form NRC-4, or on a clear and legible record containing all the information required in that form, signed by the individual showing each period of time after the individual attained the age of 18 in which the individual received an occupational dose; and (2) Calculate on Form NRC-4...or on a clear and legible record containing all the information in that form, the previously accumulated occupational dose received by the individual and the additional dose allowed for that individual under § 20.101(b).
10 C.F.R. 20.102(b)(1)-(2) (emphasis added). In addition, the "licensee shall " make a reasonable efforts to collect the reports of an individual's previously accumulated occupational dose, and "the licensee shall " take appropriate steps to retain the records used by the NRC to prepare its Form-4.
Section 20.103 addresses the exposure of individuals to concentrations of radioactive materials in air in restricted areas. Section 20.103 provides that "no licensee shall " use licensed material in a manner that permits an individual in a restricted area to inhale a quantity of radioactive material in excess of certain concentration limits set by the NRC. 10 C.F.R. 103(a) (emphasis added). Section 103 further provides that "[f]or purposes of determining compliance with the requirements of this section the licensee shall use suitable measurements of concentrations of radioactive materials in air for detecting and evaluating airborne radioactivity in restricted areas," and that "[t]he licensee shall , as a precautionary procedure, use process or other engineering controls, to the extent practicable, to limit concentrations of radioactive materials" to certain levels set by the NRC. 10 C.F.R. 103(a)(3) and (b)(1) (emphasis added).
Section 20.202 addresses personnel monitoring, and requires that "[e]ach licensee *989shall supply appropriate personnel monitoring equipment to, and shall require the use of such equipment by: (1) Each individual who enters a restricted area under such circumstances that he receives, or is likely to receive, a dose in any calendar quarter in excess of 25 percent of the applicable value specified in paragraph (a) of § 20.101."
In short, Part 20 regulations place the duty of controlling, monitoring, and recording the occupational dose of nuclear workers in restricted areas, such a Mr. Lawson, solely upon the Licensee. Moreover, there is no provision that would permit a non-Licensee, such as GE in this case, to assume the Licensee's duty to comply with Part 20 regulations, including Part 20 dose limits.
GE has submitted certain NRC licensing documents which further confirm that Part 20 dose limits apply only to the Licensees of nuclear power plants. The Final Safety Analysis Report, which is incorporated into each operating license for a commercial nuclear power plant, states that "all activities at the station site will be under the control of the [Licensee] at all times," and that the requirements of Part 20 regulations are used as basis for "control of radiation exposure of station personnel." Def.'s SOMF ¶ 15, Exh. A at 7, Exh. N. The Technical Specifications prepared by each Licensee incorporate compliance with Part 20 regulations and require the Licensee to maintain dose records for all personnel at a nuclear power plant, including contractors who receive an occupational dose.
Based on the foregoing, the Court concludes that Part 20 dose limits apply only to the Licensees of nuclear power plants. As discussed above, Plaintiffs do not dispute that GE was not the Licensee of the nuclear power plants where Mr. Lawson worked and received occupational doses of radiation. Accordingly, under the relevant federal regulations, GE owed no duty to Mr. Lawson to comply with Part 20 dose limits-the sole duty of care in this case.
2. Extending the Duty to Comply with Part 20 Dose Limits to GE Under Illinois Law Would Conflict With the Price Anderson Act
Plaintiffs raise three arguments in opposition to GE's motion: (1) Plaintiffs do not seek to impose a standard that is in conflict with the Price-Anderson Act; (2) Under Illinois law, GE owed Mr. Lawson a duty to comply with the Part 20 dose limits because GE was his de facto employer; and (3) Under Illinois law, GE owed Mr. Lawson a duty to comply with the Part 20 dose limits because GE's negligent design of the BWRs set these events into motion.
As an initial matter, the Court notes that Plaintiffs' first argument is comprised of several paragraphs copied verbatim from the transferring court's September *99023, 2015 Order. Compare Pls.' Mem. in Opp'n at 12, with Lawson,
Here, Plaintiffs' argument does nothing more than recite the well accepted rule that state law serves as the basis for a public liability action as long as it is consistent with the the Price-Anderson Act. O'Conner,
In O'Conner, the Seventh Circuit held that "federal regulations must provide the sole measure of the defendants' duty in a public liability cause of action."
Congress has attempted for nearly fifty years to encourage private sector involvement in the nuclear industry and at the same time has sought to protect the public. The Price-Anderson Act was enacted to promote these goals of "protect[ing] the public and ... encourag[ing] the development of the atomic energy industry."42 U.S.C. § 2012 . Accordingly, the Price-Anderson Act limits liability and provides for indemnification, but does so against a stringent regulatory background. The federal nuclear safety regulations are part of this statutory scheme. Imposing a standard of care other than the federal regulations would disturb the carefully crafted balance between private involvement and safety that Congress has achieved. Thus, the application of something other than the federal safety regulations as a standard *991of care is inconsistent with the Price-Anderson scheme and consequently cannot be applied in a public liability action.
As discussed supra , Part 20 regulations, including Part 20 dose limits, apply only to the Licensees of nuclear power plants. However, GE was not the Licensee of the power plants where Mr. Lawson worked and received occupational doses of radiation. Thus, following the court's reasoning in O'Conner, imposing a duty upon GE under Illinois law to comply with Part 20 dose limits would be inconsistent with the pervasive federal safety regulations that are part of the Price-Anderson statutory scheme. See O'Conner,
III. CONCLUSION
The sole duty of care in this case is provided by the federal permissible dose limits in
IT IS SO ORDERED.
Intergranular stress corrosion cracking is microscopic cracks that can develop over time in between the grains of metal from the simultaneous presence of tensile stress, high temperature oxygenated water, and the depletion of chromium at the grain boundary that results from welding.
A weld overlay involved the application of a stainless weld over an existing weld connecting two pipes, with the purpose being to provide additional structural reinforcements to the weld joint. A pipe replacement project involved cutting and removing the affected pipe attached the BWE (work that Mr. Lawson did not do) and welding a new section of pipe in place.
As discussed infra , the applicable federal permissible dose limits for the period of Mr. Lawson's exposure are set forth under 10 C.F.R. 20.101 (1986). See In re TMI,
"The term 'extraordinary nuclear occurrence' means any event causing a discharge or dispersal of source, special nuclear, or byproduct material from its intended place of confinement in amounts offsite, or causing radiation levels offsite, which the Nuclear Regulatory Commission or the Secretary of Energy, as appropriate, determines to be substantial, and which the Nuclear Regulatory Commission or the Secretary of Energy, as appropriate, determines has resulted or will probably result in substantial damages to persons offsite or property offsite."
The Licensees of the power plants where Mr. Lawson worked had exclusive control over access to any restricted area where Mr. Lawson might have received an occupation dose of radiation. See Def.'s SOMF ¶ 26. Plaintiffs' PLA falls squarely under the purview of Part 20 dose limits because Plaintiffs claim that Mr. Lawson received excessive occupational doses of radiation while working on the BWRs.
Because Plaintiffs' counsel copied and pasted this argument, these are the same cases cited by the transferring court in its September 23, 2015 Order, in which the court held that Plaintiffs' state law claims were preempted by the Price-Anderson Act.
Reference
- Full Case Name
- Steven LAWSON v. GENERAL ELECTRIC COMPANY
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- Published