[Congressional Record Volume 141, Number 116 (Tuesday, July 18, 1995)]
[Senate]
[Pages S10185-S10188]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       H.R. 956 (PRODUCTS LIABILITY BILL) AND PRICE-ANDERSON ACT

  Mr. HEFLIN. Mr. President, during the course of debate on the 
products liability bill, I mentioned nuclear power plants and the 
possible effect that the proposed legislation might have on two issues 
dealing with a nuclear power plant problem--one being the issue of pain 
and suffering and the other being the statute of repose.
  Then on May 9, 1995, I spoke on this issue in the U.S. Senate. I 
concluded my remarks by saying that I wanted to do further research 
pertaining to these issues.
  I asked the Congressional Research Service of the Library of Congress 
to look into this and they have prepared a memorandum. I ask unanimous 
consent that the attached memorandum from the Congressional Research 
Service be printed in the Congressional Record following my remarks.
  There being no objection, the memorandum was ordered to be printed in 
the Record, as follows:

                                   Congressional Research Service,


                                          Library of Congress,

                                     Washington, DC, May 23, 1995.
     To: Sen. Howell Heflin; Attention: Jim Whiddon.
     From: American Law Division.
     Subject: Causes of Action under the Price-Anderson Act.
       This is in response to your request for a memorandum 
     addressing whether state causes of action based on public 
     liability exist under the Price-Anderson Act.\1\ In 
     particular, your inquiry asks that we address survival of 
     state tort action, statutes of limitation and repose, and the 
     impact of the recently passed products liability legislation 
     (the House-passed and Senate-passed versions of H.R. 956, 
     104th Congress).
     \1\ Footnotes at the end of the article.
---------------------------------------------------------------------------
       In Parts I and II, we analyze the Act's language, 
     legislative history and relevant case law, concluding that 
     the 1988 Amendments Act created a federal cause of action. 
     Whereas state causes of action based upon public liability 
     existed under Price-Anderson prior to the 1988 amendments, 
     such is no longer the case. The only state tort actions that 
     may continue to survive are those completely outside the 
     Price-Anderson public liability scheme. Under the 1988 
     Amendments Act, federal courts, which have original 
     jurisdiction over public liability actions arising out of 
     nuclear incidents, are directed to apply state law 
     substantive rules. With the exception of waiver of defenses 
     provisions regarding extraordinary nuclear occurrences, the 
     Price-Anderson Act, as amended, lacks a specific statute of 
     limitations for public liability actions arising out of 
     nuclear incidents. As such, courts will apply the statute of 
     limitations in effect in the state in which the nuclear 
     incident occurred. In Part III, we analyze the possible 
     impact of the statutes of limitation and repose as contained 
     in the recently passed products liability legislation in 
     light of the Price-Anderson scheme.

                             I. Background

       In 1957, the Price-Anderson Act was enacted as an amendment 
     to the Atomic Energy Act in order to remove the deterrent of 
     potentially catastrophic liability to those in the private 
     sector who were interested in participating in the nuclear 
     power industry but reluctant to risk significant financial 
     resources and liability.\2\ In 1966, the Act was extended for 
     another ten year period and a key provision--a waiver of 
     defenses provision \3\--was added. Under this provision, the 
     defendant in any action involving public liability \4\ 
     arising from an ``extraordinary nuclear occurrence'' \5\ can 
     be required to waive certain legal defenses (e.g., defenses 
     based on conduct, immunity, and state statutes of 
     limitation).\6\ It is clear that the Act, as originally 
     enacted and as amended in 1966, was intended to have minimal 
     inference with State law.\7\ Also in 1966, the Act was 
     amended to include a provision authorizing the consolidation 
     in one U.S. District Court of all law suits arising from an 
     ``ENO''--conferring original jurisdiction upon the Federal 
     courts in such cases.\8\ The Act was amended again in 1975.
       A long line of cases under the Act as amended through 1975 
     had held that federal courts did not have subject matter 
     jurisdiction for claims arising out of non-ENO nuclear 
     incidents and that state tort remedies were not preempted by 
     the Act.\9\

                          II. 1988 Amendments

       Under the Price-Anderson Amendments Act of 1988, original 
     federal jurisdiction was significantly broadened to cover not 
     only those actions arising from ENOs but those 

[[Page S 10186]]
     arising from any ``nuclear incident.'' \10\ A definition of the term 
     ``public liability action'' \11\ was added with provision 
     made for the substantive rules for decision to be derived 
     from State law.\12\ As the Act now reads, the applicable 
     section--Sec. 170(n)(2) \13\--states:
       ``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 . . . shall have original jurisdiction without 
     regard to the citizenship of any party or the amount in 
     controversy. . . . [emphasis added].''
     Section 170(n)(2) continues with provision that public 
     liability actions pending in state court shall be removed or 
     transferred to the appropriate federal district court ``upon 
     motion of the defendant or of the Commission [NRC] or the 
     Secretary [of HHS].''
       The legislative history makes it clear that these changes 
     were intended to confer original jurisdiction in the federal 
     district courts and that Congress chose this option rather 
     than designing a new body of substantive law to govern such 
     cases.\14\


                   CASE LAW UNDER THE 1988 AMENDMENTS

       A recent Third Circuit Court of Appeals decision, In Re TMI 
     Litigation Case Consol. II \15\ stated:
       ``Under the terms of the Amendments Act, the ``public 
     liability action'' encompass ``any legal liability'' of any 
     ``person who may be liable'' on account of a nuclear 
     incident. . . . Given the breadth of this definition, the 
     consequence of a determination that a particular plaintiff 
     has failed to state a public liability claim potentially 
     compensable under the Price Anderson Act is that he has no 
     such claim at all. After the Amendments Act, no state cause 
     of action based upon public liability exists. A claim growing 
     out of any nuclear incident is compensable under the terms of 
     the Amendments Act or it is not compensable at all. Any 
     conceivable state tort action which might remain available to 
     a plaintiff following the determination that his claim could 
     not qualify as a public liability action, could not be one 
     based on ``any legal liability'' or ``any person who may be 
     liable on account of a nuclear incident.'' It would be some 
     other species of tort altogether, and the fact that the state 
     courts might recognize such a tort has no relevance to the 
     Price-Anderson scheme. At the threshold of any action 
     asserting liability growing out of a nuclear incident, then, 
     there is a federal definitional matter to be resolved: Is 
     this a public liability action? If the answer to that 
     question is ``yes,'' the provisions of the Price-Anderson Act 
     apply; there can be no action for injuries caused by the 
     release of radiation from federally licensed nuclear power 
     plants separate and apart from the federal public liability 
     action created by the Amendments Act.\16\''
       The court went on to state:
       ``The Amendments Act creates a federal cause of action 
     which did not exist prior to the Act, establishes federal 
     jurisdiction for that cause of action, and channels all legal 
     liability to the federal courts through that cause of action. 
     . . . Thus, Congress clearly intended to supplant all 
     possible state causes of action when the factual prerequisite 
     of the statute are met.\17\''
       Another recent Court of Appeals decision, O'Conner v. 
     Commonwealth Edison Co.,\18\ held that the Amendments Act 
     embodies substantive federal policies and, rather than merely 
     create federal jurisdiction for a state claim, created a new 
     federal cause of action that supplanted the prior state cause 
     of action.\19\ With regard to the interpretation of the 
     phrase ``law of the State'' as it appears in the definition 
     of ``public liability action.'' \20\ a recent case of first 
     impression reasoned that the phrase was intended to be 
     broadly defined--to include the whole law of the state (state 
     substantive law and choice of law provisions).\21\ Another 
     recent federal court decision noted that because Price-
     Anderson provides no statute of limitations, the limitations 
     period must be borrowed from State law.\22\


         federal cause of action based on state substantive law

       The Price-Anderson Act, as originally drafted, did not 
     create a federal cause of action. However, it is clear that 
     the Amendments Act of 1988--although relying up on state law 
     elements--does. The 1988 Amendments Act broadened the scope 
     of the Price-Anderson Act and provides for retroactive 
     subject matter jurisdiction in the federal courts over claims 
     involving nuclear incidents and Specifically, federal courts 
     have original jurisdiction over any ``public liability 
     action'' arising out of a ``nuclear incident.'' \23\
       The new definition of ``public liability action'' created a 
     federal cause of action (while directing the federal courts 
     to apply state law) by stipulating that any such suit be 
     deemed to be an action arising under the Price-Anderson Act--
     meeting Constitutional requirements. \24\ In the Amendment 
     Act, Congress created a federal tort which has its origins in 
     state law. The basis of the action no longer stems from state 
     law but now arises from federal law.\25\ State law rules 
     shall apply unless inconsistent.\26\
       If the public liability action results from an ENO, the 
     federal statute of limitations provided in Sec. 170(n)(1) may 
     apply. If the indemnity agreement required under the Act 
     incorporated a waiver of defenses based on a statute of 
     limitations, state statutes of limitations that are more 
     restrictive than that prescribed in Sec. 170(n)(1) (3-years-
     from discovery) will be superseded while those that are less 
     restrictive (e.g., longer than the prescribed period) will 
     remain in effect. The Act contains no other federal statute 
     of limitations \27\ other than that provided in the case of 
     waiver of defenses with respect to ENOs. Therefore, to the 
     extent that a state provides for a specific statute of 
     limitations (not otherwise inconsistent with Sec. 170 of the 
     Act), the federal court (or state court if such action is not 
     removed or transferred) appears to be required to apply such 
     state law provision.\28\
              III. Effects of Products Liability Bill \29\

       Products liability suits are subject in every state to a 
     statute of limitations, which is a period of time after an 
     injury or illness occurs, or after its symptoms or their 
     cause is discovered, within which an action must be brought. 
     A minority of states have also enacted a statute of repose, 
     which bars products liability suits where the injury-causing 
     products exceeds a specified age. The House-passed version of 
     H.R. 956 contains no statute of limitations, whereas the 
     Senate-passed version contains a two-year statute of 
     limitations. Both bills contain statutes of repose, but they 
     are significantly different.


                         statute of limitations

       Because the House-passed version of H.R. 956 contains no 
     statute of limitations, it would not affect the Price-
     Anderson Act, which, as noted, also has none and therefore 
     applies the applicable state statute of limitations. Section 
     109(a) of the Senate-passed version of H.R. 956 has a two-
     year statute of limitations, but section 102(c)(2) of the 
     bill provides that nothing in it ``may be construed to .  .  
     . supersede or alter any Federal Law.'' However, section 
     102(b)(1) provides that the bill supersedes state law ``to 
     the extent that State law applies to an issue covered under 
     [the bill].''
       As noted, the Price-Anderson Act, as amended in 1988, 
     creates a federal cause of action and does not permit state 
     causes of action within its public liability scheme. Because 
     the Senate-passed version of H.R. 956 would not supersede or 
     alter any federal law, it appears that it would not alter the 
     Price-Anderson's Act scheme of using state statutes of 
     limitations. One could argue that, because the Price-Anderson 
     Act uses state statutes of limitations, and the Senate-passed 
     bill supersedes state law, the Price-Anderson Act therefore 
     would use the Senate-passed bill's statute of limitations. 
     Although this interpretation does not seem out of the 
     question, it appears that the better view would be that to 
     use the Senate-passed bill's statute of limitations in Price-
     Anderson Act cases would be to supersede a federal law, which 
     would be contrary to the bill's expressed intent. 
     Nevertheless, as this seems uncertain, it might be advisable 
     for Congress to make its intention explicit.


                           statutes of repose

       Section 109(b) of the Senate-passed version of H.R. 956 
     contains a 20-year statute of repose applicable to any 
     product that is a ``durable good.'' The definition of this 
     term, in section 101(6), apparently is confused in its 
     incorporation of the Internal Revenue Code, but essentially 
     includes products used in a trade or business but not 
     consumer goods. Therefore, we will assume that the term would 
     include nuclear power plants and their component parts.
       The Senate bill's statute of repose would not apply, even 
     to durable goods, in four situations: (1) cases of toxic 
     harm; (2) where the product is ``[a] motor vehicle, vessel, 
     aircraft, or train that is used primarily to transport 
     passengers for hire''; (3) where the defendant made an 
     express written warranty as to the safety of the product that 
     was longer than 20 years, but, at its expiration, the statute 
     of repose would apply; and (4) small aircraft covered by the 
     18-year statute of repose prescribed by the General Aviation 
     Revitalization Act of 1995, Public Law 103-298, 49 U.S.C. 
     Sec. 40101 note.
       Section 106 of the House-passed version of H.R. 956 
     contains a 15-year statute of repose applicable to all 
     products, including consumer goods, except small aircraft, 
     covered by the 18-year statute of repose prescribed by the 
     General Aviation Revitalization Act of 1995. There are only 
     two other exceptions to the House bill's 15-year statute of 
     repose: (1) if the defendant made an express written warranty 
     as to the safety of the product that was longer than 15 
     years, the warranty would apply, but, at its expiration, the 
     statute of repose would apply; and (2) the 15-year statute of 
     repose would ``not apply to a physical illness the evidence 
     of which does not ordinarily appear less than 15 years after 
     the first exposure to the product.''
       With respect to the preemption of other laws, the House- 
     and the Senate-passed bills are the same with respect to 
     federal laws but different as to state laws. With respect to 
     federal laws, section 102(c)(2) of the Senate-passed bill 
     provides, as noted above, that nothing in it ``may be 
     construed to .  .  . supersede or alter any Federal law.'' 
     Similarly, section 402(2) of the House-passed bill provides 
     that nothing in it ``shall be construed to .  .  . supersede 
     any Federal law.'' (The Senate-passed bill's not using the 
     word ``alter'' would not appear to be of any consequence.)
       With respect to state laws, section 101(b) of the House-
     passed bill, like section 102(b)(1) of the Senate-passed 
     bill, provides that the bill supersedes state law ``to the 
     extent that State law applies to an issue covered under [the 
     bill].'' However, the Senate-passed bill, but not the House-
     passed bill, contains an 

[[Page S 10187]]
     exception applicable to its statute of repose. It provides that, if a 
     state law prescribes a shorter statute of repose, such state 
     law would apply. All state statutes or repose are shorter 
     than 20 years, but fewer than half the states have statutes 
     of repose. Therefore, the effect of the Senate-passed bill 
     would be to impose a 20-year statute of repose on the 
     majority of states without statutes of repose, but to leave 
     the other state's statutes of repose as they are.
       How would these provisions affect the Price-Anderson Act? 
     This depends upon whether the Price-Anderson Act incorporates 
     state statutes of repose, as it does state statutes of 
     limitations. We have found no authority on point, but it 
     appears unlikely that it would incorporate state statutes of 
     repose. This is because such statutes can preclude suits from 
     being filed even before an injury occurs, and, as the Price-
     Anderson Act creates a federal cause of action, it seems 
     unlikely that a court would construe it, in the absence of 
     some expression of congressional intent, to allow a state to 
     preclude use of a federal cause of action. If the Price-
     Anderson Act does not incorporate state statutes of repose, 
     then
      neither the House- nor Senate-passed statutes of repose 
     would apply, as both bills state that they would not 
     supersede federal law.
       If, however, the Price-Anderson Act does incorporate state 
     statutes of repose, then we may apply the same analysis we 
     did with respect to the Senate-passed bill's statute of 
     limitations. We repeat what we wrote there, substituting 
     ``statute of repose'' for ``statute of limitations,'' and 
     referring to both versions of H.R. 956 instead of only the 
     Senate-passed version: Because neither version of H.R. 956 
     would supersede any federal law, it appears that neither 
     would alter the Price-Anderson's Act scheme of using state 
     statutes of repose. One could argue that, because the Price-
     Anderson Act uses state statutes of repose, and both the 
     House- and Senate-passed versions of H.R. 956 would supersede 
     state law, the Price-Anderson Act would use the House- or 
     Senate-passed bill's statute of repose. Although this 
     interpretation does not seem out of the question, it appears 
     that the better view would be that to use either bill's 
     statute of repose in Price-Anderson Act cases would be to 
     supersede a federal law, which would be contrary to either 
     bill's expressed intent.
       Suppose, however (continuing to assume that the Price-
     Anderson Act incorporates state statutes of repose, which 
     appears more likely not to be the case), that the Price-
     Anderson Act would use the House- or Senate-passed bill's 
     statute of repose. Then the effect of the bills would differ. 
     The House-passed bill's 15-year statute of repose would apply 
     in every case, but the Senate-passed 20-year statute of 
     repose would apply only in those states that do not have a 
     shorter statute of repose. In those states that do have a 
     shorter statute of repose, it would apply.
       As noted, however, it seems more likely that state statutes 
     of repose do not apply now and that no statute of repose 
     would apply under either the House- or Senate-passed bills. 
     Again, though, it might be advisable for Congress to make its 
     intentions explicit.
     Henry Cohen,
       Legislative Attorney.
     Ellen M. Lazarus,
       Legislative Attorney.


                               footnotes

     \1\ Act Sept. 2, 1957, Pub. L. 85-256, 71 Stat. 576, as 
     codified at 42 U.S.C. 2210; amending the Atomic Energy Act of 
     1954 (Act of Aug. 30, 1954, as codified at 42 U.S.C. 
     Sec. Sec. 2011 et seq.). The Act was amended in 1966 (Pub. L. 
     89-645, 80 Stat. 891); 1975 (Pub. L. 94-197, 89 Stat. 1111); 
     1988 (Pub. L. 100-408, 102 Stat. 1066; hereinafter referred 
     to as the 1988 Amendments Act or the Amendments Act of 1988).
     \2\ S. Rep. No. 218, 100th Cong., 1st Sess. 2 (1987), 
     reprinted in 1988 U.S.C.C.A.N. 1476-77.
     \3\ Sec. 170n(1); 42 U.S.C. Sec. 2210(n)(1). The waiver of 
     defenses provision was seen as a preferable alternative to 
     enactment of a new body of Federal tort law. See S. Rep. No. 
     1605, 89th Cong., 2d Sess. 10 (1966), reprinted in 1966 
     U.S.C.C.A.N. 3209.
     \4\ Section 11 of the Atomic Energy Act, 42 U.S.C. 
     Sec. 2014(w) defines the term ``public liability'' as ``any 
     legal liability arising out of or resulting from a nuclear 
     incident or precautionary evacuation . . . except: (i) claims 
     under State or Federal workmen's compensation acts . . . (ii) 
     claims arising out of an act of war; and (iii) whenever used 
     in subsections a., c., and k. of Sec. 170 [42 U.S.C. 
     Sec. Sec. 2210(a), (c), (k)], claims for loss of, or damage 
     to, or loss of use of property which is located at the site 
     of and used in connection with the licensed activity where 
     the nuclear incident occurs. . . .''
     \5\ See Sec. 11 Atomic Energy Act, 42 U.S.C. Sec. 2014(j) for 
     definition of an extraordinary nuclear occurrence 
     (hereinafter referred to as ENO and generally considered a 
     serious nuclear accident). No nuclear incidents to date have 
     been classified as ENOs.
     \6\ 42 U.S.C. Sec. 2210(n)(1). The Act also provides certain 
     exceptions to the applicability of waivers.
     The 1966 Amendments provided that defenses based on statutes 
     of limitations were waived if the suit is instituted within 3 
     years from when the claimant first knew or reasonably could 
     have known of his injury or damage but in no event more than 
     10 years after the date of the nuclear incident). Per the 
     legislative history, the stipulated statute of limitations 
     period was not ``a maximum period for assertion of Price-
     Anderson covered claims, since the waiver authorized by the 
     bill serves only to avoid the application of more restrictive 
     State statutes of limitations. Such waiver leaves undisturbed 
     the laws of those States which have enacted--or in the future 
     may enact--longer periods of limitation.''
     See S. Rep. No. 1605, supra n.3 at 21, reprinted at 1966 
     U.S.C.C.A.N. 3221. The minimum statute of limitations for the 
     filing of claims after an accident supersedes more 
     restrictive State statutes of limitations, but does not 
     affect less restrictive State laws. See S. Rep. No. 70 100th 
     Cong., 2d Sess. 15 (1988), reprinted at 1988 U.S.C.C.A.N. 
     1427.
     In 1975, the Act was again amended; among the amendments was 
     an extension of the statute of limitations from 10 to 20 
     years. The 1988 Amendments to the Act eliminated the 20 year 
     ``years-from-occurrence'' limitation; the legislative history 
     makes it clear that ``. . . a damage suit could be filed at 
     any time after an ENO, provided the suit is instituted within 
     3 years from the time that the claimant first know, or 
     reasonable could have known, of his injury or damages caused 
     by the ENO. This new standard would supersede any more 
     restrict State tort law standards in existing law with 
     respect to statutes of limitations.''
     See S. Rep. No. 70, id. at 21, reprinted at 1988 U.S.C.C.A.N. 
     1434. The new standard is considered a Federal standard. Id. 
     at 33, reprinted at 1988 U.S.C.C.A.N. at 1455. See also H. 
     Rep. No. 104, Part 1, 100th Cong., 1st Sess. 17 (1987) 
     referring to the existing (pre-1988) standard as ``more 
     restrictive than the majority of state statutes . . . [and] 
     ineffective to prevent restrictive state statutes from 
     barring legitimate claims.''
     As presently stated, the Federal standard is absent any 
     years-from occurrence limitation but includes a 3 year-from-
     discovery period. When incorporated into an indemnity 
     agreement, ``such waivers shall be judicially enforceable in 
     accordance with their terms by the claimant against the 
     person indemnified.'' 42 U.S.C. Sec. 2210(n)(1).
     \7\ See S. Rep. No. 1605, supra n. 3 at 6-10 (1966), 
     reprinted at 1966 U.S.C.C.A.N. 3206-3210. Under the Price-
     Anderson system, the claimant's right to recover from the 
     fund established by the act is left to the tort law of the 
     various States; the only interference with State law is a 
     potential one, in that the limitation of liability features . 
     . . would come into play in the exceedingly remote 
     contingency of a nuclear incident giving rise to damages in 
     excess of the amount of financial responsibility required 
     together with the amount of the governmental indemnity.
     Id. at 6.
     In Duke Power v. Carolina Env. Study Group, 438 U.S. 59, 65-
     66 (1978), the High Court referred to the 1966 waiver of 
     defenses provision as based on a congressional concern that 
     state tort law dealing with liability for nuclear incidents 
     was generally unsettled and that some way of insuring a 
     common standard of responsibility for all jurisdictions--
     strict liability--was needed. A waiver of defenses was 
     thought to be the preferable approach since it entailed less 
     interference with state tort law than would the enactment of 
     a federal statute prescribing strict liability.
     \8\ Sec. 170(n)(2); 42 U.S.C. Sec. 2210(n)(2).
     \9\ See Commonwealth of Pennsylvania v. General Pub. Util. 
     Corp., 710 F.2d 117 (3d Cir. 1983); Stibitz v. GPU, 746 F.2d 
     993 (3d Cir. 1984); Kiick v. Metropolitan Edison Co, 784 F.2d 
     490 (3d Cir. 1986); Silkwood v. Kerr-McGee Corp., 464 U.S. 
     238 (1984).
     \10\ Sec. 11(a); 42 U.S.C. 2210(n)(2). Section 11 of the 
     Atomic Energy Act, 42 U.S.C. Sec. 2014(q), defines a 
     ``nuclear incident'' as: ``. . . any occurrence, including an 
     extraordinary nuclear occurrence, within the United States, 
     causing, within or outside the United States, 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. . . .''
     With regard to the change from consolidating only ENOs in 
     federal court to consolidating claims arising out of any 
     nuclear incident, the legislative history states: ``. . . 
     [T]he bill provides the federal district court in which the 
     nuclear incident occurred with subject matter jurisdiction 
     over claims arising from the nuclear incident. Any suit 
     asserting public liability shall be deemed to be an action 
     arising under the Price-Anderson Act, and the substantive law 
     of decision shall be derived from the law of the State in 
     which the incident occurred, in order to satisfy the Article 
     III requirement that federal courts have jurisdiction over 
     cases arising under the Constitution or under the laws of the 
     United States.''
     See S. Rep. No. 218, supra n. 2 at 13, reprinted at 1988 
     U.S.C.C.A.N. 1488.
     On a related matter, see reference in legislative history to 
     the effect of extending the waiver of defenses provision to 
     include radioactive waste activities: The effect of this 
     provision would be to trigger strict liability, and to 
     preempt lesser State tort law standards in any lawsuit 
     involving an accident with radioactive waste that DOE 
     determines to be an ``extraordinary nuclear occurrence.''
     S. Rep. No. 70, supra n. 6 at 26, reprinted at 1988 
     U.S.C.C.A.N. 1439.
     \11\ Section 11 of the Atomic Energy Act, 42 U.S.C. 
     Sec. 2014(hh) defined ``public liability action'' as used in 
     Sec. 170 as: ``. . . any suit asserting liability. A public 
     liability action shall be deemed to be an action arising 
     under Sec. 170 [42 U.S.C. Sec. 2210], 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.''
     \12\ See H. Rep. No. 104, Part 1, supra n. 6 at 18 (1987), at 
     which the Committee on Interior and Insular Affairs states: 
     ``Rather than designing a new body of substantive law to 
     govern such cases, however, the bill provides that the 
     substantive rules for decision in such actions shall be 
     derived from the law of the State in which the nuclear 
     incident involved occurs, unless such law is inconsistent 
     with the Price-Anderson Act. The Committee believes that 
     conferring on the Federal courts jurisdiction over claims 
     arising out of all nuclear incidents in this manner is within 
     the constitutional authority of Congress. . . .''
     As stated in Re TMI Litigation Cases Consol. II, 940 F.2d 832 
     (2d Cir. 1991): ``. . . Congress expressed its intention that 
     state law provides the content of and operates as federal 
     law.''
     Id. at 855.
     \13\ 42 U.S.C. Sec. 2210(n)(2).
     \14\ See S. Rep. No. 218 supra note 2 at 13; see also H. Rep. 
     No. 104, Part 1, 100th Cong., supra n. 6 at 18 (1987).
     \15\ 940 F.2d 832 (3d Cir. 1991), cert. denied, 503 U.S. 906 
     (1992).
     \16\ Id. at 854-55.
     \17\ Id.at 856-57.
     \18\ 13 F.3d 1090 (7th Cir. 1994), cert. denied, 1994 U.S. 
     Lexis 4722.
     \19\ Id. at 1096, 1099.
     \20\ See definition supra, at n. 11.
     \21\ In Re Hanford Nuclear Reservation Litigation, 780 F. 
     Supp. 1551 (E.D. Wash. 1991), relying on Richards v. United 
     States, 369 U.S. 1 (1962) (interpretation of similar phrase 
     in Federal Tort Claims Act); Chevron Oil Co. v. Huson, 404 
     U.S. 97 (1971) (interpretation of Outer Continental Shelf 
     Lands Act (OCSLA) provision). See also reference in 
     legislative history to Article III jurisdiction approach that 
     Congress used in the OCSLA; H. Rep. No. 104, Part 1, supra 
     note 6 at 18.
     \22\ See Day v. NLO, 3 F.3d 153, 154 n. 1 (6th Cir. 1993). 
     See also the trial court decision in Cook v. Rockwell Intl' 
     Corp., 755 F. Supp. 1468, 1482 (D. Colo. 1991) motion denied, 
     1995 U.S. Dist. Lexis 4986 (D. Colo. 1995) (In response to 
     claim that Price-Anderson was ``silent'' on what limitations 
     should apply, party contended that a state statute 
     establishing a specific 

[[Page S 10188]]
     limitation period for ``all actions upon liability created by a federal 
     statute where no period of limitations is provided in said 
     federal statute'' should apply. The court held that such 
     state statutory period did not apply because Price-Anderson 
     provided for a limitations period by mandating the 
     application of state substantive law and that statutes of 
     limitations are substantive).
     \23\ Although federal courts have original jurisdiction over 
     such actions, states have concurrent jurisdiction. See 
     Sec. 2210(n)(2). Subject to removal upon motion, public 
     liability actions may be filed in state courts; in a case in 
     which such action proceeds in state court, Sec. 2014(hh) 
     requires that the law of the State in which the nuclear 
     incident occurred determine the rules for decision.
     \24\ See Article III, Sec. 2, cl. 1, U.S. Constitution: ``The 
     Judicial Power shall extend to all Cases, in Law and Equity, 
     arising under this Constitution. . . .''
     The issue of whether Congress exceeded its authority under 
     Article III in creasing ``arising under'' jurisdiction even 
     where stipulating that such actions were to be derived from 
     state law has been addressed in a number of opinions issued 
     under the Amendments Act. In vacating and remanding a 
     district court holding that the Amendments Act was 
     unconstitutional, the Circuit Court of Appeals in Re TMI 
     Litigation Cases Consol. II, 940 F.2d 832, 845 (3d Cir. 1991) 
     stated: ``It could not be clearer that Congress intended that 
     there be federal jurisdiction over claims removed pursuant to 
     the Amendments Act; the statutory language is explicit.'' The 
     court, in analyzing subject matter jurisdiction, noted that 
     the Amendments Act ``contains both federal and state 
     elements. 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.''
     Id. at 854.
     \25\ See In Re TMI Litigation Cases Consol. II, supra n. 15 
     at 857-58.
     \26\ Note, for example, that under Sec. 170(s); 42 U.S.C. 
     Sec. 2210(s) ``No court may award punitive damages in any 
     action with respect to a nuclear incident . . . against a 
     person on behalf of whom the United States is obligated to 
     make payments under an agreement of indemnification covering 
     such incident. . . .''
     \27\ See, however, Sec. 167 of the Atomic Energy Act, 42 
     U.S.C. Sec. 2207, authorizing the Commission to pay ``any 
     claim for money damage of $5,000 or less against the United 
     States for bodily injury, death, or damage . . . where such 
     claim is presented to the Commission in writing within one 
     year after the accident or incident out of which the claim 
     arises. . . .''
     \28\ If a federally created right of action has a specific 
     statute of limitations, such a right is enforced free from 
     any state limitation period. In such a case, the provision is 
     regarded as one of substantive right setting a limit to the 
     existence of the statutory obligation. Where a federal right 
     has been created without providing a limitation of actions to 
     enforce such a right, since there is no federal statute of 
     limitations of general application, the courts generally 
     apply the forum state's statute of limitations. As such, 
     federal courts will borrow the periods of limitation 
     prescribed by the state where Congress has created a federal 
     right but has not prescribed a period for its enforcement. 
     See 51 am jur 2d limitation of actions Sec. 74; 53 C.J.S. 
     limitations of actions Sec. 33.
     \29\ Henry Cohen wrote Part III of the memorandum; Ellen 
     Lazarus wrote Parts I and II.
     

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