Jean C. Hamilton, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on Plaintiffs' Motion for Remand.
On May 4, 2017, Plaintiffs filed their Complaint in the Circuit Court of St. Louis County, Missouri (State court). (ECF 10 (Complaint)). As relevant to the pending Motion to Remand, Plaintiffs' Complaint alleges the following: The individual Plaintiffs are all extended members of the Boenker family, and are owners of the Boenker family farm, which lies directly adjacent to the Westlake Landfill and the Bridgton Landfill (jointly, the Landfills); Defendant Republic Systems, Inc., is and has been responsible for operating the Landfills; Defendant Bridgeton Landfill, LLC, owns the Landfills; in 1988, Defendant Westlake Landfill, Inc., changed its name to Laidlaw Waste Systems, Inc., and, in 1998, merged into Defendant Bridgeton Landfill, LLC; Defendant Allied Services,
Plaintiffs further allege that "Defendants own[ed] and operat[ed] [the Landfills] which accepted radioactive waste without a license to do so"; that the "radioactive waste [] spread to the Boenker family farm causing personal injury, property damage, and the need for medical monitoring"; and that "Defendants have also so mismanaged the Landfills that an underground fire now burns out of control and threatens the nuclear waste." (ECF 10, ¶ 1). Further, in their Complaint, Plaintiffs allege that 40,000 tons of radioactive waste was accepted by the Landfills in 1973; that the radioactive waste came from Cotter Corporation's Latty Avenue site; that Cotter was a "known possessor of radioactive material at the time"; and that neither the Landfills' owner nor operator sought a license from the Nuclear Regulatory Commission (NRC) prior to accepting and receiving the radioactive material.
Additionally, Plaintiffs allege that Defendants have previously declared to this court that the Price Anderson Act (PAA), 42 U.S.C. § 2011 et seq., does not apply to them because the Landfills were not licensed to accept or receive radioactive materials.
As further relevant to Plaintiffs' Motion to Remand, Defendants have submitted a copy of a Source Material License (the License or 1969 Source Material License) for uranium, issued to Cotter by the Atomic Energy Commission (AEC), on December 3, 1969. The License states that the "[a]uthorized place of use" was Cotter's facility located at 9200 Latty Avenue, Hazelwood, Missouri; that the "[m]aximum quantity of source material which [Cotter] [could] possess at any one time under [the] license [was] unlimited"; and that the License was to expire on December 31, 1974. (ECF 32.1).
Defendants removed this matter from State court to federal court, on June 9, 2017, pursuant to 28 U.S.C. § 1331, contending that this Court has subject-matter jurisdiction over Plaintiffs' cause of action because it "arises under" federal law, in particular, the PAA, 42 U.S.C. §§ 2011 et seq. (ECF 1). In the pending Motion to Remand, Plaintiffs contend that this Court does not have subject-matter jurisdiction and they reiterate the allegations of their Complaint regarding the PAA's inapplicability to this matter. (ECF 21).
Except as otherwise expressly provided by Congress, civil actions for which the district courts of the United State have original jurisdiction may be removed from state court to federal district court. 28 U.S.C. §§ 1441(a), 1446. A party opposing removal may file a motion to remand to state court. 28 U.S.C. § 1447(c). The party removing and opposing remand has the burden of establishing federal subject matter jurisdiction. Iowa Lamb Corp. v. Kalene Indus., Inc., 871 F.Supp. 1149, 1154 (N.D. Iowa 1994); In re Business Men's Assur. Co. of America, 992 F.2d 181, 183 (8th Cir. 1993) (per curiam). Upon considering a motion to remand, a district court is "required to resolve all doubts about federal jurisdiction in favor of remand." Business Men's Assurance, 992 F.2d at 183 (citing Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)).
"The presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (quoting Gully v. First Nat'l Bank, 299 U.S. 109, 112-113, 57 S.Ct. 96, 81 S.Ct. 70 (1936)). See also Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir. 1996) ("The `well-pleaded complaint rule' requires that a federal cause of action must be stated on the face of the complaint before the defendant may remove the action based on federal question jurisdiction.") (quoting Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425). Because federal law provides that plaintiffs are the "masters" of their claims, plaintiffs "may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425.
Even in situations where a cause of action based on a federal statute does not appear on the face of the complaint, preemption based on a federal statutory scheme may apply in circumstances where "the pre-emptive force of a statute is so extraordinary that it converts an ordinary state common-law complaint into one stating a federal claim." Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425 (internal quotation
The Atomic Energy Act of 1954 (AEA), as amended, 42 U.S.C. §§ 2011-2281, "grew out of Congress' determination that the national interest would be best served if the Government encouraged the private sector to become involved in the development of atomic energy for peaceful purposes under a program of federal regulation and licensing." Pacific Gas and Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 206-207, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). "[AEA] implemented this policy decision by providing for licensing of private construction, ownership, and operation of commercial nuclear power reactors." Id. at 207, 103 S.Ct. 1713 (citing Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 63, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978)). In 1957, after it "`became apparent that profits from the private exploitation of atomic energy were uncertain and the accompanying risks substantial,'" Congress amended the AEA with the PAA, 42 U.S.C. § 2011 et seq., "which provided certain federal licensees with a system of private insurance, Government indemnification, and limited liability for claims of `public liability.'"
The PAA had three "central elements." The first element was to "set a ceiling on the aggregate liability which could be imposed upon those engaged in the use and handling of radioactive material either through a contract with the Federal Government or under a license issued by the Federal Government for the private development of such activities." In re TMI Litigation Cases Consol. II (TMI II), 940 F.2d 832, 852 (3rd Cir. 1991). The second element channeled liability in that "any entity exposed to potential liability for activity resulting in a nuclear incident, even if it were not a direct participant in the activity, was entitled to indemnification." Id. (internal quotation marks and citation omitted). Finally, the PAA provided that
The PAA "mandated that an assured `pool' of available funds be established to cover certain liabilities which might arise out of activities related to licenses." Gilberg v. Stepan Co., 24 F.Supp.2d 325, 333 (D. N.J. 1998), disagreed with on other grounds, Estate of Ware v. Hosp. of the Univ. of Penn., 871 F.3d 273 (3rd Cir. 2017). A licensee "was required as a condition of its license to maintain `financial protection,' consisting of either `private insurance, private contractual indemnities, self insurance, [or] other proof of financial responsibility.'" Gilberg, 24 F.Supp.2d at 333. (quoting 42 U.S.C. §§ 2210(a) & (b)). The AEC itself "was required to enter into an indemnification agreement with any licensee who was required by license to maintain financial protection." Id. (citing 42 U.S.C. § 2210(c)).
Among other things, as relevant, the PAA was amended in 1988 to "alter the breadth of the compensation system to cover activity related to disposal of nuclear waste," to "create[] a federal cause of action," and to "channel[] liability to licensees." TMI II, 940 F.2d at 853-54. The amendments to the PAA also provided "for removal of, and original federal jurisdiction over, claims arising from a `nuclear incident,'" as discussed further below. Id. at 853.
Pursuant to the 1988 amendments, "public liability action" is defined by the PAA, 42 U.S.C. § 2014(hh), as follows:
(emphasis added).
This definition of public liability action "had the effect of creating a federal cause of action under the [PAA] for public liability claims arising out of a nuclear incident." Gilberg, 24 F.Supp.2d at 339 (citing TMI II, 940 F.2d at 857). Thus, a "public liability action" requires a "nuclear incident." TMI II, 940 F.2d at 855.
As relevant, "public liability" is defined by the PAA, 42 U.S.C. § 2014(w), as:
"Nuclear incident," is defined, in relevant part, by the PAA, 42 U.S.C. § 2014(q), as:
(emphasis added).
"Extraordinary nuclear occurrence" is defined by the PAA, 42 U.S.C. § 2014(j), in relevant part, as:
(emphasis added).
As relevant, the PAA, 42 U.S.C. § 2014(t), further explains, in regard to the term "persons indemnified," that:
(emphasis added).
As stated above, the PAA's jurisdictional provision, 42 U.S.C. § 2210(n)(2), vests district courts with original jurisdiction over "any public liability action arising out of or resulting from a nuclear incident," and expressly authorizes removal by a defendant of any such action commenced in state court to the district court "in the district where the nuclear incident [took] place." (emphasis added). Specifically, § 2210(n)(2) was amended, in 1988, to substitute the phrase "nuclear incident" for the phrase "extraordinary nuclear occurrence." Gilberg, 24 F.Supp.2d at 339. This change has been interpreted as an expansion of federal jurisdiction. Id. (citing TMI II, 940 F.2d at 832). See also Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000) (amending § 2210(n)(2) to cover nuclear incidents rather than extraordinary nuclear occurrences expanded federal jurisdiction). As explained by the Third Circuit:
TMI II, 940 F.2d at 856-57 (emphasis added).
Significantly, the structure of the PAA, as set forth in the above quoted provisions, has been described as "complicated," "interlocking," and "us[ing] words in unintuitive ways." Estate of Ware, 871 F.3d at 280.
Although a federal question is not overtly presented on the face of Plaintiffs' Complaint, Defendants removed this matter based on their position that Plaintiffs' cause of action arises out of the PAA, and that, therefore, the Court has subject matter jurisdiction. See Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425. Subsequently, Plaintiffs filed the Motion to Remand now under consideration. In the Motion to Remand, Plaintiffs argue that this Court does not have federal subject matter jurisdiction because: Federal jurisdiction is not created under the PAA unless a "nuclear incident" has been alleged; "a `nuclear incident' can occur only when the defendants are either licensed participants in the nuclear industry or a party to an indemnification agreement under 42 U.S.C. § 2210"; "where there is no such license or agreement, the PAA does not apply and federal jurisdiction does not exist"; "Defendants do not dispute Plaintiffs' allegations that they are not licensed and are not subject to an indemnification agreement"; "[a]s such, Plaintiffs have not plead a `nuclear incident'"; and Plaintiffs' claims, therefore, are based exclusively on State law and are not subject to federal jurisdiction. (ECF 21 at 1; ECF 22 at 5). Plaintiffs also argue that, were this Court to find the PAA applicable to their claims, their Constitutional right to Due Process would be violated. (ECF 22 at 14-15).
In their Response to the Motion to Remand, Defendants argue that Plaintiffs' claims "fall squarely in the purview of the PAA's federal jurisdiction provision," and that Plaintiffs cannot "escape the PAA by suing only those entities connected to the nuclear weapons industry in St. Louis that did not have a license or direct indemnification agreement with the federal government." (ECF 32 at 6). Defendants further contend that "regardless of whom, if anyone caused [the] nuclear incident, liability would be channeled to the licensee and payment would be obtained from the compensation pool" established by the PAA. (ECF 32 at 7) (internal citations omitted).
Clearly, Plaintiffs allege, and Defendants do not dispute, that the Landfills neither had a license nor an indemnity agreement as contemplated by the PAA. Thus, for the purpose of determining whether it has subject matter jurisdiction, the Court must determine whether the PAA can apply without an applicable license or indemnity agreement. Alternatively, the Court must consider whether federal subject matter jurisdiction can be asserted based on Cotter's 1969 Source Material License.
In Gilberg, 24 F.Supp.2d at 343, 345-46, recently criticized by the Third Circuit in Estate of Ware, 871 F.3d at 283, the court held that, in order for there to be a "public liability action" under the PAA, an indemnity agreement is required; hence, there can be no federal subject matter jurisdiction without an indemnity agreement. To reach this conclusion, the court in Gilberg, 24 F.Supp.2d at 331-32, reasoned:
The court then concluded that:
24 F.Supp.2d at 340.
The court in Gilberg, noted that case law did not make it clear whether the PAA's "jurisdictional provisions operate independently from its indemnification provisions," and that "a paraphrase of the definition of `nuclear incident' [does not] lead to the conclusion that the [PAA] employs the word `occurrence' more narrowly than its ordinary meaning." The court concluded, however, that "whether as a matter of statutory construction or the structure and history of the Act, no claim for public liability can lie in the absence of an applicable indemnity agreement." Gilberg, 24 F.Supp.2d at 343. See also Joseph v. Sweet, 125 F.Supp.2d 573, 576 (D. Mass. 2000) ("[T]he prerequisite for a claim to fall within the scope of the [PAA] [is] the existence of an indemnification agreement between the government and the defendant with respect to the complained of activity.") (citing Heinrich v. Sweet, 62 F.Supp.2d 282, 296-97 (D. Mass. 1999)).
In Samples v. Conoco, Inc., 165 F.Supp.2d 1303 (N.D. Fl. 2001), also criticized by the Third Circuit in Estate of Ware, 871 F.3d at 283, the court considered whether a license is necessary for federal subject matter under the PAA. The defendant argued that the court had subject matter jurisdiction pursuant to the PAA because the plaintiffs' lawsuit was a "public liability action" under the PAA, given that the plaintiffs sought to recover damages for injuries "arising out of or resulting from a nuclear incident." The defendant claimed that the "clear language of the PAA covers any claim of injury to property allegedly caused by certain nuclear material" and that "Congress did not limit the scope of the PAA's `public liability' provisions to Nuclear Regulatory Commission (NRC) licensees and Department of Energy (DOE) contractors." Id. at 1320-21 (first emphasis in original and second emphasis added). Calling the defendant's argument "Hogwash," the court held that "the word `occurrence' as used in the definition of `nuclear incident' means `that event at the site of the licensed activity, or activity for which the Commission has entered into a contract, which may cause damage." Id. at 1321 (emphasis in original) (quoting S. REP. No. 296, at 16 (1957) (quoted in 10 C.F.R. § 8.2 at 202 (2001)). Noting that there had not been a nuclear incident, the court concluded that, because the defendant failed to demonstrate that it was a DOE contractor or a NRC licensee, the case did not state a claim under the PAA. Id. at 1321-22.
Plaintiffs argue that Cook v. Rockwell International, Corp., 790 F.3d 1088 (10th Cir. 2015), is dispositive of the issues before the Court as it held that, "when a case involves harm caused by nuclear materials, but does not meet the definition of `nuclear incident,' it is not pre-empted by the PAA." (ECF 22 at 12). The Tenth Circuit had earlier held, in the same case, 618 F.3d 1127, 1140 (10th Cir. 2010), that "a plaintiff must establish an injury sufficient to constitute a nuclear incident as a threshold, substantive element of any PAA claim." (emphasis added). Upon remand to the district court, the plaintiffs "disclaimed any effort to prove a nuclear incident for purposes of the [PAA]," and argued that the PAA's "liability limiting and indemnification protections [then] fell away, leaving background state tort law to operate normally." Cook, 790 F.3d at 1091. In response, the defendants argued that the PAA preempts any state law recovery where a nuclear incident is asserted but ultimately unproven, and that "if you allege and then fail to prove a nuclear incident you are barred from recovery of any kind — even if you can establish a qualifying
Notably, contrary to Gilberg, 24 F.Supp.2d 325, courts have held that a license or an indemnification agreement is
Acuna, 200 F.3d at 339.
Also, in O'Conner v. Commonwealth Edison Co., 807 F.Supp. 1376, 1378 (C.D. Ill. 1992), where the plaintiff sued both a nuclear power plant licensee and a contractor, the court noted that, upon passing the PAA, "Congress recognized that a nuclear incident might be caused by any number of participants in the nuclear industry beyond the actual licensee," and "through mandatory indemnification provisions, channeled all public liability to licensees, and away from non-licensees, ... who might otherwise have borne such liability under ordinary tort law." See also Estate of Ware, 73 F.Supp.3d at 530 (acknowledging that courts would find to the contrary but holding that the "PAA is [not] limited to nuclear incidents occurring at utilization and production facilities and other licensed facilities") (internal quotation omitted); Carey v. Kerr-McGee Chem. Co., 60 F.Supp.2d 800, 806 (N.D. Ill. 1999) ("Under Gilberg's analysis, the phrase `to which an indemnity agreement applies' would be superfluous, because there could be no ENO without an indemnity agreement. The inclusion of the
Most recently, in Estate of Ware, 871 F.3d at 283, upon affirming the district court's decision, the Third Circuit specifically rejected the holding in Gilberg, 24 F.Supp.2d at 339, that an indemnity agreement is a prerequisite for federal subject matter jurisdiction under the PAA, and held that it was "unpersuaded that an indemnification agreement is necessary to trigger the [PAA's] applicability." Upon finding that there was federal subject matter jurisdiction based on the PAA, the Third Circuit considered that the defendant, a university, had a license from the Pennsylvania Department of Environmental Protection Bureau of Radiation Protection, and that the State-issued license was not "meaningfully different ... from a license issued directly by the NRC." Estate of Ware, 871 F.3d at 284. Significantly, in response to the plaintiff's additional argument that the PAA applies only when a defendant has a license to possess nuclear materials, the Third Circuit held:
Estate of Ware, 871 F.3d at 283 (emphasis in original).
Also, in Cotromano v. United Techs. Corp., 7 F.Supp.3d 1253, 1257 (S.D. Fl. 2014), the court rejected the plaintiff's argument that that "there can be no federal jurisdiction unless the Defendants show `adequate financial protection' and an `indemnification agreement,'" and reasoned that "[t]he plain language of the [PAA] indicates that the possession of a license for radioactive material is unrelated to the jurisdiction issue. None of the statutory definitions limit[s] the jurisdiction over nuclear claims to licensed activity." In conclusion, the court held that, under the PAA, "financial protection is a condition of obtaining a license, not a condition of establishing jurisdiction," and that "whether or not [the] [d]efendants [had] indemnification agreements with the federal government [was] not dispositive of the applicability" of the PAA to that case. Id. at 1259.
Given the varied and conflicting opinions regarding what is required for federal subject matter jurisdiction pursuant to the PAA, the Court notes that the following legislative history of the PAA, S. REP. No. 85-296, 1957 WL 5103, at *1817-18 (May 9, 1957), is instructive, even though it addresses the relevant statutory terms prior to the 1988 Amendments to the PAA, as it states:
(emphasis added).
It is implicit in the language of the above quoted legislative history that the terms "nuclear incident" and "occurrence" are inextricably intertwined with "licenses" and "indemnification agreements," thus suggesting licenses and indemnification agreements are an integral part of the PAA's statutory scheme and that there cannot be a nuclear incident without an applicable license or indemnity agreement.
Nonetheless, the Court is faced with "competing preemption narratives." Guidance in such a situation is provided by Cook, 790 F.3d at 1094, notably authored by now Justice Gorsuch. Cook holds:
Cook, 790 F.3d at 1094 (emphasis added). See also Hughes v. Ester C Co., 99 F.Supp.3d 278, 283 (E.D. N.Y. 2015) ("[W]here the text of a preemption clause is ambiguous or open to more than one plausible reading, courts `have a duty to accept the reading that disfavors pre-emption.'")
Given the conflicting interpretations of the PAA regarding whether there must be a license or an indemnity agreement for the PAA to apply and, hence, for a federal court to have subject matter jurisdiction, and considering that conflicts should be resolved by finding no federal preemption, the Court finds that this matter should be resolved in favor of finding that there cannot be federal jurisdiction under the PAA without a license or an indemnity agreement. See Cook, 790 F.3d at 1094; Hughes, 99 F.Supp.3d at 283; Gilberg, 24 F.Supp.2d at 343. In any case, the Court finds persuasive authority holding that, "whether as a matter of statutory construction or the structure and history of the PAA," a license or an indemnity agreement is a prerequisite for federal subject matter jurisdiction pursuant to the PAA. Gilberg, 24 F.Supp.2d at 343.
To the extent a license is required for federal jurisdiction under the PAA, Defendants contend that Cotter's 1969 Source Material License provides a basis for federal jurisdiction under the PAA merely because the radioactive material at issue came from Cotter's Latty Avenue facility. Defendants contend it is inconsequential that Cotter is not a party to the instant lawsuit. (ECF 10, ¶ 41; ECF 32 at 6-7).
As argued by Plaintiffs, Cotter's license, issued in December 1969, was for "source" material, not "radioactive waste," "leached barium sulfate residues," or "radiological waste," the material which is the subject of Plaintiffs' Complaint. (ECF 10, ¶¶ 1, 43-45). Thus, assuming that a license is required for federal subject matter jurisdiction pursuant to the PAA, the Court fails to see how Cotter's 1969 Source Material License applies to Plaintiffs' claims.
Plaintiffs also argue that the radioactive waste at issue was specifically "uranium mill tailings"; that Defendants "concede" that uranium mill tailings "are what's buried on their property"; that Defendants "proclaim that the material they took possession of in 1973 is uranium mill tailings"; that uranium mill tailings were not subject to PAA licensing until 1978; and that, therefore, Cotter's 1969 Source Material License cannot be a basis for federal subject matter jurisdiction in this matter. (ECF 38 at 4-6) (citing ECF 16 (Memorandum in Support of Defendants' Motion to Dismiss Plaintiffs' Complaint) at 4 n.2) (citing U.S Army Corps of Engineers' website).
Indeed, in their Memorandum in Support of Defendants' Motion to Dismiss Plaintiffs' Complaint, Defendants cite the U.S. Army Corps of Engineers' website's statement that the that the material sent to the West Lake Landfill "would qualify as `byproduct' material, which is defined in part as `the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content.'" (ECF 16 at 4 n.2 (quoting 42 U.S.C. § 2014(e)(2)). Plaintiffs' Complaint, however, does not specifically allege that the material deposited at the Landfills was uranium mill tailings, and, notably, Defendants do not specifically acknowledge, nor does the record reflect that, the material deposited at the Landfills was, in fact, uranium mill tailings.
In any case, to the extent the material at issue is uranium mill tailings, in 1969, when Cotter obtained the Source Material License, and, in 1973, when the Landfills allegedly accepted the material at issue, the definition of "byproduct material" did not include uranium or thorium mill tailings. It was not until 1978 that Congress expanded the definition of "byproduct material"
Notably, the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA), which first included uranium mill tailings in the definition of byproduct material, states that, except as otherwise provided by 42 U.S.C. § 2014, the amendments made by Title II of the UMTRCA "shall take effect on the date of the enactment of this Act." PL 95-604 (HR 13650), Nov. 8, 1978, 92 Stat. 3021, Title II — Uranium Mill Tailings Licensing and Regulation Definition, Sec. 208. Moreover, "[r]etroactivity [is] not favored in the law," and "[C]ongressional enactments ... will not be construed to have retroactive effect unless their language requires this result." Simmons v. Lockhart, 931 F.2d 1226, 1230 (8th Cir. 1991) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988)). Thus, Cotter's 1969 Source Material License could not have covered uranium mill tailings.
Defendants cite several cases for their argument that this Court has federal subject matter jurisdiction under the PAA because Cotter may ultimately be held liable for Plaintiffs' damages. Unlike the matter under consideration, however, in the cases cited by Defendants for this proposition, the plaintiffs had sued licensees, who were owners or operators of nuclear power plants, in addition to defendants who were not licensed but who performed services for the licensees at the nuclear power plants. As such, these cases are not dispositive of whether Cotter may ultimately be held liable for Plaintiffs' damages. See e.g., Kiick v. Metro. Edison Co., 784 F.2d 490, 491 (3rd Cir. 1986) (stating that owners and operators of the nuclear facility at which the nuclear accident giving rise to the plaintiffs' claims took place were each a "person indemnified" under the PAA, "along with those companies that supplied design, engineering, or maintenance services, or that were vendors of systems or equipment incorporated in the facility"); Corcoran v. New York Power Authority, 935 F.Supp. 376, 390 (S.D.N.Y. 1996) (holding that deceased maintenance worker's employer, which was a contractor at the nuclear power plant that was the site of the nuclear accident causing the deceased's injuries, might be indemnified; plaintiff had sued the "nuclear power licensee" as well as the deceased's employer); O'Conner v. Commonwealth Edison, Co., 807 F.Supp. 1376, 1378 (C.D. Ill. 1992)
The Court finds, therefore, without merit Defendants' argument that Cotter's 1969 Source Material License provides a basis for federal subject matter jurisdiction pursuant to the PAA even though Cotter is not a party to the instant lawsuit. Further, for the above stated reasons, including that a license or indemnity agreement are required for federal subject matter pursuant to the PAA, the Court finds that Defendants have not met their burden of establishing federal subject matter jurisdiction, and that Plaintiffs' Motion to Remand should be granted. Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425; Cook, 790 F.3d at 1094-95.
Given the Court's finding that it does not have subject matter jurisdiction and that this matter should be remanded to State court, the Court need not determine the merits of Plaintiffs' due process argument. But see, Cook, 790 F.3d at 1099 n.3 (finding that the plaintiffs' argument that, "[a]s a matter of due process, [] Congress cannot eliminate longstanding common law rights without providing any `reasonable alternative remedy' unless there is a `compelling' reason to do so," was not a "trivial argument") (quoting PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 93-94, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980)).
For the reasons stated above, the Court finds that Plaintiffs' Motion to Remand should be granted.
Accordingly,
42 USC 2014. is amended to read as follows: "e. The term `byproduct material' means (1) any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material, and (2) the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content."
