ELR Citation: ELR 20639
No(s). s. 82-3421, -3425 (3d Cir. Jun 23, 1983)

The Third Circuit upholds the district court's dismissal of appellants' public nuisance claims but vacates the dismissal of tort claims for damages allegedly arising out of the accident at the Three Mile Island nuclear power plant in March 1979. The court first rules that the Atomic Energy Act, as amended by the Price-Anderson Act, does not allow enforcement by private litigants, including the appellant municipalities and commonwealth. Also, state common-law public nuisance claims are preempted by the Act because the federal government has exclusive jurisdiction over safety regulation of privately owned nuclear power plants. Next, the court holds that the lower court properly dismissed tort claims for damages resulting from real estate tax revenue losses because appellees established in the record that tax revenues increased following the incident. However, the court rules that appellants should be allowed to present evidence in support of their claims for personnel costs, operational expenses, emergency purchases, lost work time, and other expenses incurred as a result of or in response to the accident.

The court refuses to adopt a federal common-law rule that would allow state and municipal governments to recover damages for extraordinary public expenditures following nuclear incidents. The legislative history of the Price-Anderson Act and relevant case law indicate that state tort law should decide liability and damages issues. The court holds that insufficient evidence was presented to decide appellants' claim that special recovery rules should apply to nuclear incidents because the dangers associated with such incidents are distinguishable from those of other public emergencies. Appellants should also have an opportunity to show that their alleged losses were not purely economic but were associated with physical damage to their buildings and property as a result of the intrusion of radioactive materials. The court rules that appellants have sufficiently supported their allegation that a nuclear accident occurred, as defined by the Price-Anderson Act, to defeat appellees' summary judgment motion.

[A related decision is reported at 13 ELR 20122 — Ed.]

Counsel for Appellants
Louis J. Rovelli; Leroy S. Zimmerman, Attorney General
1641 Strawberry Sq., Harrisburg PA 17102
(717) 787-3391

Arnold Levin, Howard J. Sedran, Laurence S. Berman
Levin & Fishbein
Suite 600, 320 Walnut St., Philadelphia PA 19106
(215) 592-1500

Lee C. Swartz
Hepford, Swartz, Menaker & Wilt
P.O. Box 889, Harrisburg PA 17108
(717) 234-4121

Counsel for Appellees
John G. Harkins Jr., Edward W. Madeira Jr., Alfred H. Wilcox Jr., John A. Guernsey
Pepper, Hamilton & Scheetz
2001 Fidelity Bldg., 123 S. Broad St., Philadelphia PA 19109
(215) 893-3000

Joined by Adams and Weis, JJ.