duties survives the Privette decision; SDGE had non-delegable duties to decedent, and thus summary judgment in its favor would be inappropriate. In the alternative, the Court finds that summary judgment would be inappropriate because there is a material issue of fact as to the sufficiency of SDGE's control over the operations at SONGS.
Having determined the matter under state law, the Court must now, in accordance with the dictates of the Price-Anderson Act, consider whether or not the state law rule is inconsistent" with the Price-Anderson Act; if it is not inconsistent, then the state law rule will apply. If, however, state law is inconsistent with the Price-Anderson Act, it will be preempted.
Other courts have already addressed issues of preemption under the Price-Anderson Act, providing this Court with guidance on the matter at hand. In In re TMI III Consol Litig, 67 F.3d 1103, 1113-14 (3d Cir. 1995), cert. denied, 116 S. Ct. 1034 (1996) and O'Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir. 1994), cert. denied, 129 L. Ed. 2d 838, 114 S. Ct. 2711 (1994), the Third and Seventh Circuits held that federal law would preempt state law with respect to the standard of care. In both cases, the court found that while the plaintiffs were proceeding under a state law cause of action, negligence, the standard of care which would be used to determine whether or not defendants had indeed acted negligently would be determined by looking to the federal regulations and the numerical dose limits contained therein. The O'Conner court reached this conclusion by reasoning that federal law had preempted state law with regard to "nuclear safety" standards. O'Conner, 13 F.3d at 1105.
Those courts similarly went on to find not only that the federal regulations would determine the standard of care, but also that if plaintiff presented evidence that the numerical standards had been violated, such proof would establish the negligence of the defendant as a matter of law. Id.; In re TMI III, 67 F.3d at 1117-18.
The federal courts have also found that applying a strict liability standard would be inconsistent because it would serve to impose liability without requiring plaintiff to prove a violation of the regulations. Bohrman, 926 F. Supp. at 218. In sum, the courts have found that with respect to the standard of care leading to liability, state law cannot be followed to the extent that it gives either more or less protection to defendants than do the regulations. This conclusion appears driven by the acknowledgment that the federal regulations represent the expert determination by the federal government of what level of risk society should bear in exchange for the needed development of nuclear energy. O'Conner, 13 F.3d at 1095-96, 1104 (discussing deference to Congressional policy); In re TMI III, 67 F.3d at 1106-07, 1115 (discussing Congressional balancing resulting in the regulations). The statute itself indicates that Congress intended to, "protect the public and to encourage the development of the atomic energy industry, in the interest of the general welfare and of the common defense and security. . . " 42 U.S.C. § 2012(i).
The Court finds that if the Felmlee rule is viable here, then state law would not be inconsistent with the Price-Anderson Act; the non-delegable duties rule acts to incorporate the federal regulatory safety standards and thus can apply without offense to the federal statute.
It, however, the Court were incorrect about its application of the non-delegable duties doctrine in the face of the Privette ruling, the Court finds that state law would conflict with the Price-Anderson Act. This inconsistency could arise in two ways. First, as noted above, even in the absence of Felmlee, SDGE might still be deprived of protection from Privette if plaintiff were able to show at trial that SDGE maintained sufficient control over the operations at SONGS to be directly liable for decedent's injuries. It, however, SDGE is able to show that it did not retain such control, SDGE would be protected by Privette. In such a case, state law would serve to give SDGE greater protection than contemplated by the Price-Anderson Act, and thus would be inconsistent with it. Second, if even the Yanez exception were found invalid such that the Privette doctrine, in its "pure" form, served to protect SDGE from liability, it would again give SDGE greater protection than found under Price-Anderson Act.
This Court, like the courts in TM III and O'Conner, finds that it should defer to the expert judgment of Congress and the NRC who, in passing the Price-Anderson Act and promulgating the regulatory guidelines, have carefully crafted a balance between developing nuclear energy and providing safety for workers and the public. The regulations here have achieved that balance by placing affirmative duties on "each licensee" to ensure that radiation exposures do not exceed proscribed levels. 10 C.F.R. § 20.101(b)(establishing duty of "licensee" to prevent occupational doses greater than established limits); 10 C.F.R. § 20.102(a) (stating that, "each licensee shall require" workers to certify prior occupational radiation doses). This Court finds no more reason than the courts before it to question or upset that balance. The Court finds that applying the Privette doctrine in any way which would relieve SDGE of its duties under the regulations would be inconsistent with the federal regulations and thus is preempted by the Price-Anderson Act.
In addition, the Court notes that the regulatory regime has essentially incorporated a Privette-type rule. 10 C.F.R. § 20.101 establishes the occupational radiation dose limits in "restricted areas." Sections 20.105 and 20.106, on the other hand, set out the radiation dose limits for individuals in "unrestricted areas," defined as "any area access to which is not controlled by the licensee for purposes of protection of individuals from exposure to radiation and radioactive materials, and any area used for residential quarters." 10 C.F.R. § 20.3(17). The occupational radiation dose limit in "restricted areas" is 3 rems per calendar quarter. 10 C.F.R. § 20.101(b)(1). The radiation dose limit in "unrestricted areas" is 0.5 rem per year. 10 C.F.R. § 20.105(a). The "peculiar risk" doctrine, as discussed above, provides generally that owners undertaking dangerous activities will be liable to third parties for injuries occurring as a result of that activity. The rule announced in Privette contained an exception to the "peculiar risk" doctrine which results in different levels of responsibility to third parties (i.e. members of the public) and individuals who are employed on the premises. Similarly, the regulatory structure here contemplates a different level of responsibility for "occupational" exposure in "restricted areas" (which would effect workers, including employees of independent contractors) than it does for exposure in "unrestricted areas" where members of the public might be present.
The Court finds that the state law doctrine announced in the Privette case relates to the standard of care and to the extent that it might apply to shield SDGE from liability when the regulations would not, it is inconsistent with the Price-Anderson Act and thus preempted by it. Thus, the Court DENIES SDGE's motion for summary judgment based on the Privette doctrine.
C. The Applicable Standard of Care
Plaintiff argues here, as in the past, that the jury should be instructed not only on the numerical dose limits for occupational exposure, but also on the "as low as is reasonably achievable" ("ALARA") language found in 10 C.F.R. § 20.1.
Plaintiff argues that defendant should be liable for exposure not just over the numerical dose limits found in 10 C.F.R. Part 20, but also for any exposure above that which would be "reasonably achievable." In TMI III, the Third Circuit definitively held that it is the numerical dose standard, rather the ALARA standard, which should be applied. TMI III, 67 F.3d at 1113. The Court here is persuaded by the reasoning of the TMI III case and thus finds that the numerical dose limits, rather than the ALARA standards, will be applicable to the case at bar.
IV. CERTIFICATION FOR INTERLOCUTORY APPEAL
The various parties in this lawsuit have all requested that this Court certify its rulings in this case for interlocutory appeal. Certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) is appropriate if: (1) the order involves a controlling issue of law; (2) there are substantial grounds for a difference of opinion; and (3) immediate appeal from the order may materially advance the ultimate termination of the litigation. The Court finds that an interlocutory consideration by the appeals court of the orders denying summary judgment for SDGE and denying INPO's motion for referral to the NRC, including the determinations in this order and in earlier orders,
would be appropriate in the case at bar because the orders involve controlling issues of law about which there are substantial grounds for a difference of opinion and a determination at this point in the proceedings would materially advance the litigation. The Court herein GRANTS the request to certify the orders for interlocutory appeal.
The Court finds that the rule announced in Privette v. Superior Court does not apply here to shield SDGE from liability because the non-delegable duties doctrine survives Privette and applies in the case at bar to hold SDGE liable for any exposures in excess of the numerical dose limits. The Court thus DENIES SDGE's motion for summary judgment. The Court finds in the alternative that to the extent that the Privette doctrine would shield SDGE from liability, either because none of the articulated exceptions are viable under California law or because SDGE did not retain sufficient "control" over SONGS, state law would be inconsistent with the Price-Anderson Act and thus is preempted. Based on this second analysis, the Court also DENIES SDGE's motion for summary judgment. Finally, the Court finds that even if the Felmlee doctrine or the preemption of the Price-Anderson Act do not serve to deny SDGE summary judgment here, summary judgment would still be inappropriate as there is a material issue of fact as to whether or not SDGE maintained sufficient control to be held directly liable for decedent's injuries.
The Court also finds that plaintiffs claims against INPO in this lawsuit are not ones requiring the expertise of the NRC and thus GRANTS INPO's motion for reconsideration but AFFIRMS its earlier order denying the motion to refer. Finally, the court finds that the orders so far issued in this case, including the instant order, are suitable for appellate review at this time and thus CERTIFIES the case for interlocutory appeal.
IT IS SO ORDERED.
Rudi M. Brewster
UNITED STATES DISTRICT JUDGE