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Silkwood v. Kerr-McGee Corp., 485 F. Supp. 566 (W.D. Okla. 1979)

In the event of a major nuclear accident, Congress has imposed a form of strict liability on the nuclear industry through the Price- Anderson Act. The Act provides for a waiver of state and common law defenses in the event of an “extraordinary nuclear occurrence” by federally licensed nuclear facilities. Thus the Act proscribes federal strict liability upon the nuclear industry for injuries caused by an extraordinary incident.

If, however, the nuclear accident is less than an extraordinary nuclear occurrence, an accident often referred to as “subthreshold,” a question arises whether preemption will prevent imposition of state strict liability law. In Silkwood v. Kerr-McGee Corp. the District Court for the Western District of Oklahoma held that the Price- Anderson Act does not preempt state law in a “subthreshold” nuclear accident.

Silkwood was the first major personal injury case to assess a manufacturer’s liability for the escape of radioactive material. The district court held that traditional state tort concepts mandate imposition of strict liability upon a defendant for any injury which results from the escape of radiation from its facility.

In an exhaustive opinion on the defendant’s post-trial motions for judgment notwithstanding the verdict and/or, alternatively a new trial, the district court addressed three main contentions raised by the defendant, Kerr-McGee. The defendant first contended that federal preemption prohibited the imposition of strict liability unless federal law, as provided for in the Price-Anderson Act, required it. Strict liability, therefore, could not be imposed for a subthreshold nuclear accident. Second, the defendant contended that liability could not attach if exposure levels were within the permissible levels set by the Atomic Energy Commission (AEC) and the Nuclear Regulatory Commission (NRC). Third, the defendant contended that even assuming initial liability, its substantial compliance with federal regulations barred an award of punitive damages.

This note analyzes the preemption issue in view of the statutes, the applicable case law and the legislative history of the Price-Anderson Act. The effect of compliance on the issues of liability and punitive damage will be analyzed together in view of the federal regulations and the applicable case law. This analysis will lead to the conclusion that state law is not preempted by the Price-Anderson Act and compliance with federal regulations is only evidence of reasonable care, and is, therefore, not a shelter from liability.

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