Cotter Corporation and other defendants last week asked the full U.S. Court of Appeals for the Eighth Circuit to reconsider whether litigation should be allowed to go forward by two sisters who blame their cancer on St. Louis area radioactive contamination dating to the Manhattan Project.
The petition for rehearing was filed Nov. 27 by defendants Cotter, Commonwealth Edison and the St. Louis Airport Authority.
In September, a three-judge panel in the 8th Circuit stood behind a district judge’s decision to let the lawsuit by Nikki Steiner Mazzocchio and Angela Steiner Kraus proceed. The plaintiffs allege the defendants engaged in improper radioactive waste handling in areas near the St. Louis Airport and near Coldwater Creek.
The panel gave the defendants until last week to file for rehearing.
In their Nov. 27 filing, the defendants argue the panel’s finding conflicts with prior legal precedents including rulings by the U.S. Supreme Court.
“The panel decision also presents an issue of exceptional importance: whether federal law preempts state standards of care in nuclear incident litigation under the Price-Anderson Act,” Cotter said in the legal brief. “By finding against preemption, the panel decision directly conflicts” with decisions by multiple federal appeals courts across the country, the defendants argue.
Other federal appeals courts that have ruled in cases involving the 1988 amendments to the Price Anderson Act have concluded federal laws preempt state ones on nuclear safety liability, Cotter said in the petition.
“The Court should grant rehearing en banc [with all judges present] and hold, in line with every other court to consider the issue, that federal law preempts divergent state standards of care when applied to the inherently federal area of nuclear safety,” Cotter and the other defendants argue.
“The panel decision allows state tort standards to regulate nuclear safety despite the Atomic Energy Act prohibiting states from doing so,” Cotter said. Congress made the Nuclear Regulatory Commission, not state tort law, the chief umpire of radiation and nuclear development issues, according to the brief.
