Compensation for Injury or Damage From Nuclear Power or Radioactive Substance

The Price Anderson Act sets up an indemnification and limitation of liability scheme for public liability arising out of the conduct of the nuclear energy and weapons industries[i].

Previously, only those claims arising out of an extraordinary nuclear occurrence were subject to automatic federal jurisdiction.  However, the courts have found that Congress intended to create an exclusive federal cause of action for torts arising out of nuclear incidents.

The Price Anderson Amendments Act, 42 USCS § 2210, creates an exclusive federal cause of action for radiation injury.  To prevail, a plaintiff may base her position on one of two theories[ii]:

  • the nuclear incident theory or
  • the extraordinary nuclear occurrence theory, which imposes strict liability.

 

The term ‘nuclear incident’ means any occurrence, including an extraordinary nuclear occurrence, within the U.S. causing bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material[iii].

An extraordinary nuclear occurrence is determined by the Nuclear Regulatory Commission or the Secretary of Energy upon a finding that a significant amount of source, special nuclear, or by-product radioactive materials have been discharged off-site and has resulted or will probably result in substantial damages to persons off-site or property off-site[iv].

Any determination by the Nuclear Regulatory Commission or the Secretary of Energy regarding whether an extraordinary nuclear occurrence has occurred will be final and conclusive, and no other official or any court will have the power or the jurisdiction to review any such determination[v].

The Price-Anderson Amendments Act creates an exclusive federal cause of action for radiation injury.  The statute defines a ‘public liability action’ as any suit asserting public liability growing out of exposure to nuclear radiation[vi].  The Act further defines ‘public liability’ as any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation[vii].

The Amendments Act also provides for the removal of and original federal jurisdiction over, claims for any nuclear incident.  Congress further requires that the substantive rules of decision, to be applied by the courts in such cases, should be derived from the law of the state in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of the Act[viii].

The Attorney General can establish procedures whereby individuals, including the survivors of decedents, may submit claims for payment under the Radiation Exposure Compensation Act. Further, the Attorney General can make a determination on each claim not later than twelve months after the claim is filed.

An individual whose claim for compensation is denied may seek judicial review solely in a district court of the U.S.  The court reviews the denial on the administrative record and will hold unlawful and set aside the denial if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

[i] Acuna v. Brown & Root, Inc., 200 F.3d 335 (5th Cir. Tex. 2000).

[ii] Lokos v. Detroit Edison, 67 F. Supp. 2d 740 ( E.D. Mich. 1999).

[iii] 42 USCS § 2014 (q).

[iv] 42 USCS § 2014 (j).

[v] Id.

[vi] 42 USCS § 2014 (hh).

[vii] 42 USCS § 2014 (w).

[viii] Roberts v. Florida Power & Light Co., 146 F.3d 1305 (11th Cir. Fla. 1998).


Inside Compensation for Injury or Damage From Nuclear Power or Radioactive Substance