State law claims for alleged exposure to radioactive materials released by a nuclear plant; Preemption under the Price-Anderson Act; 42 USC § 2210(n)(2); Nieman v NLO, Inc; “Public liability action” (§ 2014(hh)); “Nuclear incident” (§ 2014(q)); “Occurrence”; Removal of claims from state court; Applicability of the Act to injury claims resulting from periodic releases of toxic materials; Distinguishing Cook v Rockwell Int’l Corp (Cook II); “Extraordinary nuclear occurrence” (§ 2014(j)); Claim that Price-Anderson Act preemption violates the Fifth Amendment’s Takings & Due Process Clauses

Concluding that plaintiffs asserted a “public liability action” under the Price-Anderson Act, the court held that the Act preempted their state law claims arising from alleged exposure to radioactive materials released by a nuclear plant. As claims asserting liability arising from a nuclear incident must be brought under the Act, and plaintiffs disclaimed any reliance on it, the court affirmed the dismissal of their complaint for failure to state a cognizable claim. Plaintiffs sued entities involved in the plant’s operations in Ohio state court, asserting claims under Ohio law. Defendants removed the action to federal court and successfully argued in the district court that the Price-Anderson Act preempted plaintiffs’ claims. On appeal, the court considered whether they asserted a public liability action – if they did, their state law claims were removable and preempted. It first determined that they alleged a “nuclear incident.” The complaint asserted “that the plant expelled ‘radioactive materials,’ including uranium, neptunium, and plutonium, as well as ‘other metals into the air, water, and soil’ of the surrounding community. These are the types of substances that, when they harm persons or property, can give rise to a ‘nuclear incident.’” They also alleged that “exposure to these substances caused them to suffer ‘illnesses,’ ‘cancers,’ and other injuries that are included as the types of physical harms encompassed by a ‘nuclear incident.’” In addition, according to their allegations, these injuries “resulted from an ‘occurrence,’ as that term is used in the Act’s definition of a ‘nuclear incident.’” As the word was not statutorily defined, the court applied its ordinary meaning – “something that occurs, happens, or takes place” – and concluded that the alleged radiation-related injuries arose from an “occurrence.” Thus, plaintiffs alleged facts constituting a “nuclear incident.” And because they asserted “claims based upon that incident, they are asserting claims for ‘public liability.’. . . Taking all of this together, plaintiffs’ state law claims amount to a ‘public liability action,’ meaning” they were preempted by the Act. The court rejected their arguments to the contrary, concluding among other things that “‘ongoing releases’ can constitute an ‘occurrence’ within the meaning of ‘nuclear incident’ under the Act.”