                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-1995

In Re: TMI
Precedential or Non-Precedential:

Docket 94-7599




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"In Re: TMI" (1995). 1995 Decisions. Paper 270.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/270


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                            ___________

                            No. 94-7599
                            ___________


                            IN RE: TMI

                               General Public Utilities Corp.;
                               Metropolitan Edison Company;
                               Jersey Central Power & Light Co.;
                               Pennsylvania Electric Co.;
                               Babcock & Wilcox Company;
                               McDermott Incorporated;
                               UE&C Catalytic, Inc. (Raytheon);
                               Burns & Roe Enterprises;
                               Dresser Industries,
                                              Appellants

         _______________________________________________

         On Appeal from the United States District Court
             for the Middle District of Pennsylvania
               (D.C. Civil Action No. 88-cv-01452)
                       ___________________


                       Argued May 1, 1995

      Before:   SCIRICA, McKEE and SAROKIN, Circuit Judges

                    (Filed October 17, 1995)


ALFRED H. WILCOX, ESQUIRE (ARGUED)
ELLEN K. SCOTT, ESQUIRE
Pepper, Hamilton & Scheetz
18th and Arch Streets
3000 Two Logan Square
Philadelphia, Pennsylvania 19103-2799

 Attorneys for Appellants




                                1
LAURENCE S. BERMAN, ESQUIRE (ARGUED)
ARNOLD LEVIN, ESQUIRE
Levin, Fishbein, Sedran & Berman
320 Walnut Street, Suite 600
Philadelphia, Pennsylvania 19106

LEE C. SWARTZ, ESQUIRE
Hepford, Swartz & Morgan
111 North Front Street
P.O. Box 889
Harrisburg, Pennsylvania 17108

WILLIAM R. WILSON, JR., ESQUIRE
654 North State Street
Jackson, Mississippi 39202

  Attorneys for Appellees,
  Dorothy L. Aldrich, et al.


LOUIS M. TARASI, JR., ESQUIRE
Tarasi & Johnson
510 Third Avenue
Pittsburgh, Pennsylvania 15219

  Attorney for Appellees,
  Estate of Henrietta Adams, et al.


                          _______________

                      OPINION OF THE COURT
                       __________________


SCIRICA, Circuit Judge.



          In 1979, an accident occurred at a nuclear power

facility near Harrisburg, Pennsylvania, releasing radiation into

the atmosphere and catapulting the name, "Three Mile Island,"

into the national consciousness.      Sixteen years later, we are

called on once again to consider the Three Mile Island accident




                                  2
as we determine the appropriate standard of care for the

operators of the facility.
                      I.   Procedural History

          The accident at the Three Mile Island ("TMI") nuclear

power facility occurred on March 28, 1979.      As a result,

thousands of area residents and businesses filed suit against the

owners and operators of the facility,0 alleging various injuries.0

This case involves the consolidated claims of more than 2000

plaintiffs for personal injuries allegedly caused by exposure to

radiation released during the TMI accident.

          These cases began more than a decade ago, when

plaintiffs filed damage actions in the Pennsylvania state courts

and the Mississippi federal and state courts.0     After defendants

removed the state cases to federal court, asserting federal

jurisdiction under the Price-Anderson Act, we held that the Act

created no federal cause of action and was not intended to confer

jurisdiction on the federal courts.   See Kiick v. Metropolitan

Edison Co., 784 F.2d 490 (3d Cir. 1986); see also Stibitz v.

0
  Defendants in this case were, at the time of the TMI accident,
"the owners and operators of the nuclear facility, companies
which had provided design, engineering or maintenance services,
and those vendors of equipment or systems installed in the
facility." In re TMI Litig. Cases Consol. II, 940 F.2d 832, 836
(3d Cir. 1991), cert. denied, 503 U.S. 906 (1992).
0
  Defendants have settled non-personal injury claims brought by
individuals, businesses, and non-profit organizations within a
twenty-file mile radius of the TMI facility. See Stibitz v.
General Pub. Util. Corp., 746 F.2d 993, 995 n.1 (3d Cir. 1984)
(citing In Re Three Mile Island Litig., No. 79-0432 (M.D. Pa.
Sept. 9, 1981)), cert. denied, 469 U.S. 1214 (1985).
0
  Counsel for plaintiffs concede they filed suit in Mississippi to
take advantage of the state's six-year statute of limitations,
instead of the two-year Pennsylvania statute.

                                3
General Pub. Utils. Corp., 746 F.2d 993 (3d Cir. 1984), cert.

denied, 469 U.S. 1214 (1985).    The actions were remanded to the

appropriate state courts.

          Subsequently, Congress enacted the Price-Anderson

Amendments Act of 1988 ("1988 Amendments" or "Amendments Act"),

Pub. L. No. 100-408, 102 Stat. 1066, which expressly created a

federal cause of action for "public liability actions"0 and

provided that such suits arose under the Price-Anderson Act.       42

U.S.C. § 2014(hh) (1988).   The Amendments Act also provided for

consolidation of such actions, including those already filed, in

one federal district court.     Id. § 2210(n)(2).   Accordingly,

these personal injury actions were removed to federal court and

consolidated in the Middle District of Pennsylvania.      We upheld

the constitutionality of the retroactive application of the

federal jurisdiction provisions of the Amendments Act and

remanded the actions back to the district court.      In re TMI

Litig. Cases Consol. II, 940 F.2d 832 (3d Cir. 1991) ("TMI II"),

cert. denied, 503 U.S. 906 (1992).

          Contending they had not breached the duty of care,

defendants then moved for summary judgment, which the district

court denied.   In re TMI Litig. Cases Consol. II, No. 88-1452,
slip op. at 36 (M.D. Pa. Feb. 18, 1994).     After holding that


0
 The Amendments Act defined a "public liability action" as "any
suit asserting public liability." 42 U.S.C. § 2014(hh) (1988).
"[P]ublic liability" was defined as "any legal liability arising
out of or resulting from a nuclear incident or precautionary
evacuation," except for certain claims covered by workers'
compensation, incurred in wartime, or that involve the licensed
property where the nuclear incident occurs. Id. §2014(w).


                                  4
federal law determines the standard of care and preempts state

tort law, id. at 23, the district court found the standard of

care was set by the federal regulations: 1) prescribing the

maximum permissible levels of human exposure to radiation0 and 2)

requiring radiation releases to be "as low as is reasonably

achievable," which is known as the "ALARA" principle.0    Id. at

28-29.    The court held that each plaintiff must prove individual

exposure to radiation in order to establish causation, but not to

establish a breach of the duty of care.   Id. at 30-31.

           Upon defendants' motion, the district court certified

for interlocutory appeal the duty of care and causation issues:
          1)   Whether 10 C.F.R. §§ 20.105 and 20.106, and not
               ALARA, constitute the standard of care to be
               applied in these actions;

           2)   Whether a particular Plaintiff's level of exposure
                to radiation or radioactive effluents relates
                solely to causation or also to the duty owed by
                Defendants.

In re TMI Litig. Cases Consol. II, No. 88-1452 (M.D. Pa. July 13,
1994).0   We granted the petition for interlocutory appeal.


0
  See 10 C.F.R. §§ 20.105, 20.106 (1979). For a discussion of
these regulations, see infra part III.B.1.
0
  "ALARA" is defined to mean "as low as is reasonably achievable
taking into account the state of technology, and the economics of
improvements in relation to benefits to the public health and
safety, and other societal and socioeconomic considerations, and
in relation to the utilization of atomic energy in the public
interest." 10 C.F.R. § 20.1(c). The term appears in several
sections of the C.F.R., including § 20.1(c), §50.34a, and §
50.36a. For a further discussion of the term, see infra part
III.B.
0
  The district court also certified a question regarding punitive
damages, which we discuss in a separate opinion. See In Re: TMI,
cite. We resolve other issues concerning the applicable statute
of limitations in a third opinion. See In Re: TMI, cite.


                                 5
          The district court had jurisdiction under 42 U.S.C.

§2210(n)(2) (1988).    We have jurisdiction under 28 U.S.C.

§1292(b) (1988) and exercise plenary review over the legal

questions certified.    See Buzzard v. Roadrunner Trucking, Inc.,

966 F.2d 777, 779 (3d Cir. 1992).
                           II.    Preemption

          Initially, we must address the district court's

decision that federal law determines the standard of care,

preempting state tort law.       See In re TMI Litig. Cases Consol.

II, No. 88-1452, slip op. at 23 (M.D. Pa. Feb. 18, 1994).        The

district court essentially relied on our holding in TMI II, 940

F.2d 832, 859 (3d Cir. 1991), cert. denied, 503 U.S. 906 (1992),

and decisions following it.0      See In re TMI Litig. Cases Consol.

II, No. 88-1452, slip op. at 15-23 (M.D. Pa. Feb. 18, 1994).           But

plaintiffs contend that TMI II did not resolve this issue.

          Under the 1988 Amendments, the applicable law for

"public liability actions" is "the law of the State in which the

nuclear incident involved occurs, unless such law is

inconsistent" with federal law.         42 U.S.C. § 2014(hh) (1988).

Thus, Pennsylvania tort law would control here, unless

inconsistent with federal law.      But TMI II decided this issue by
preempting state tort law on the standard of care.




0
 See, e.g., O'Conner v. Commonwealth Edison Co., 13 F.3d 1090,
1105 (7th Cir.) ("[W]e agree with the Third Circuit in TMI that
it is clear . . . that state regulation of nuclear safety,
through either legislation or negligence actions, is preempted by
federal law."), cert. denied, 114 S. Ct. 2711 (1994).


                                    6
          In TMI II, we considered the constitutionality of the

1988 Amendments, specifically, whether they improperly conferred

"arising under" jurisdiction.   940 F.2d at 848-49.   Examining the

Amendments Act's "federal components," we found federal

preemption of state tort law on the applicable standard of care.

See id. at 858 ("Two Supreme Court cases indicate that the duty

the defendants owe the plaintiffs in tort is dictated by federal

law."); id. at 859 ("Permitting the states to apply their own

nuclear regulatory standards, in the form of the duty owed by

nuclear defendants in tort, would, however, 'frustrate the

objectives of federal law.'") (citation omitted); id. ("Under

Pacific Gas & Electric Co., states are preempted from imposing a

non-federal duty in tort, because any state duty would infringe

upon pervasive federal regulation in the field of nuclear safety,

and thus would conflict with federal law.").    Thus, TMI II

definitively resolved the issue whether federal law preempts

state tort law on the standard of care.

          But we also said, "Consequently the plaintiffs' rights

will necessarily be determined, in part, by reference to federal

law, namely the federal statutes and regulations governing the

safety and operation of nuclear facilities."    Id. at 860.
Plaintiffs contend that, by using the term "in part," "this Court

left open the question of whether the applicable duty of care is

exclusively federal."   Appellees' Br. at 37.   We cannot agree.

Because we held that federal law preempted state law on the duty

of care, plaintiffs' rights had to be determined, at least in

part, by federal law.   We did not address whether federal law


                                7
also controlled other aspects of plaintiffs' claims, such as

causation and damages, because they were not at issue.     TMI II

controls, and federal law determines the standard of care and

preempts state tort law.     See also O'Conner v. Commonwealth

Edison Co., 13 F.3d 1090, 1105 (7th Cir.) (citing TMI II)

(holding state law on the duty of care preempted in tort suits

involving nuclear safety), cert. denied, 114 S. Ct. 2711 (1994).
                III.   Statutory and Regulatory History

          Although it is clear that federal law governs the

standard of care for tort claims arising from nuclear accidents,

it is more difficult to discern the precise contours of that

federal duty.    The question appears to be one of first impression

for a federal appellate court.0     Accordingly, we will examine the

language of the relevant statutes and regulations, and the

underlying history and policies.
                              A.   Statutes

          Nearly a half century ago, Congress initiated its

regulation of nuclear power through the enactment of the Atomic

Energy Act of 1946, Pub. L. No. 79-585, 60 Stat. 755.     The Act

was designed to establish an industry to generate inexpensive

electrical power, transforming "atomic power into a source of

energy" and turning "swords into plowshares."     Pacific Gas &

Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n,

461 U.S. 190, 193 (1983).



0
 Some federal district courts and state courts have considered
this issue, with varying results. See infra part IV.C.


                                    8
          Although the 1946 Act designated the nuclear industry a

government monopoly, Congress later decided to permit private

sector involvement.   See Atomic Energy Act of 1954, Pub. L. No.

83-703, 68 Stat. 919.    The 1954 Act "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 &

Elec., 461 U.S. at 206-07 (citing H.R. Rep. No. 2181, 83d Cong.,

2d Sess. 1-11 (1954)).

          Nevertheless, because of the unique nature of this form

of energy production, the fledgling nuclear industry faced many

problems, particularly:
          the risk of potentially vast liability in the
          event of a nuclear accident of a sizable
          magnitude . . . . [W]hile repeatedly
          stressing that the risk of a major nuclear
          accident was extremely remote, spokesmen for
          the private sector informed Congress that
          they would be forced to withdraw from the
          field if their liability were not limited by
          appropriate legislation.

Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59,
64 (1978) (citations omitted).

          In response, Congress enacted the Price-Anderson Act

"to protect the public and to encourage the development of the

atomic energy industry."   Pub. L. No. 85-256, § 1, 71 Stat. 576

(1957).   The Act limited the potential civil liability of nuclear

plant operators and provided federal funds to help pay damages

caused by nuclear accidents.   Id.   Congress has amended the

Price-Anderson Act three times, most recently in 1988,


                                 9
"provid[ing] a mechanism whereby the federal government can

continue to encourage private sector participation in the

beneficial uses of nuclear materials."    In re TMI Litig. Cases

Consol. II, 940 F.2d 832, 853 (3d Cir. 1991) ("TMI II") (citing

S. Rep. No. 218, 100th Cong., 2d Sess. 4, reprinted in 1988

U.S.C.C.A.N. 1476, 1479), cert. denied, 503 U.S. 906 (1992).

          Throughout this period, Congress repeatedly sought to

encourage the development of the nuclear power industry.    Yet,

Congress has continued the "dual regulation of nuclear-powered

electricity generation: the Federal Government maintains complete

control of the safety and 'nuclear' aspects of energy generation;

the States exercise their traditional authority over the need for

additional generating capacity, the type of generating facilities

to be licensed, land use, ratemaking, and the like."    Pacific Gas

& Elec., 461 U.S. at 211-12 (footnote omitted).
                           B.   Regulations

          Volume 10 of the Code of Federal Regulations (1979)0

governs energy matters, and its first chapter regulates the

Nuclear Regulatory Commission ("NRC").0   Parts 20 and 50 of

Chapter 1 are the relevant sections.
                      1.   10 C.F.R. Part 20




0
  In this case, the relevant federal regulations were those in
place at the time of the TMI accident in 1979. Unless otherwise
noted, all citations to the Code of Federal Regulations refer to
the 1979 version.
0
  See infra note 20.


                                 10
           Part 20 of 10 C.F.R. ch. 1 outlines "Standards for

Protection Against Radiation."   Under the "General Provisions" of

Part 20, § 20.1(c) provides a statement of the ALARA principle:
               In accordance with recommendations of
          the Federal Radiation Council, approved by
          the President, persons engaged in activities
          under licenses issued by the Nuclear
          Regulatory Commission . . . should, in
          addition to complying with the requirements
          set forth in this part, make every reasonable
          effort to maintain radiation exposures, and
          releases of radioactive materials in
          effluents to unrestricted areas, as low as is
          reasonably achievable. The term "as low as
          is reasonably achievable" means as low as is
          reasonably achievable taking into account the
          state of technology, and the economics of
          improvements in relation to benefits to the
          public health and safety, and other societal
          and socioeconomic considerations, and in
          relation to the utilization of atomic energy
          in the public interest.

(emphasis added).

           Immediately following the "General Provisions" of Part

20 is a subpart covering "Permissible Doses, Levels, and

Concentrations," which regulates exposures of radiation to

persons on the property of a nuclear facility, see 10 C.F.R.

§§20.101-.104,0 as well as those off premises, see id. § 20.105-

.106.   The latter regulations, governing "unrestricted areas,"0

are relevant here because plaintiffs were outside the TMI

premises when the alleged radiation exposures occurred.
0
  These regulations apply to persons in "restricted areas," which
are defined as "any area access to which is controlled by the
licensee for purposes of protection of individuals from exposure
to radiation and radioactive materials." 10 C.F.R. §20.3(a)(14).
0
  An "unrestricted area" is "any area access to which is not
controlled by the licensee for purposes of protection of
individuals from exposure to radiation and radioactive materials,
and any area used for residential quarters." Id. § 20.1(a)(17).


                                 11
            Section 20.105 sets the "[p]ermissible levels of

radiation in unrestricted areas," i.e., outside the TMI

facility's boundaries.   It mandates that the NRC approve license

applications if the applicant shows its plan is not likely to

cause anyone to receive radiation in excess of 0.5 rem0 per year.

§ 20.105(a).    In subsection (b), the regulation provides that

except as authorized by the NRC, no licensee shall cause

"[r]adiation levels which, if an individual were continually

present in the area, could result in his receiving a dose in

excess of" two millirems in any hour or 100 millirems in any

week.   The parties dispute whether the § 20.105 standard

governing off-site exposure was violated during or after the TMI

accident.

            While § 20.105 defines the levels of radiation

permitted in unrestricted areas, § 20.106 defines the levels of

radioactivity permitted in liquid or airborne effluents released

off premises.    It provides that licensees "shall not possess,

use, or transfer licensed material so as to release to an

unrestricted area radioactive material in concentrations which

exceed the limits specified in Appendix 'B', Table II of this

part, except as authorized . . . ."    Appendix B then lists more


0
 Doses of radiation of different ionizations are expressed in
"rems," a unit of measurement that "embodies both the magnitude
of the dose and its biological effectiveness." U.S. Dep't of
Commerce, Permissible Dose From External Sources of Ionizing
Radiation: National Bureau of Standards Handbook 59 30-31 (1954);
see also 10 C.F.R. § 20.4(c) (defining rem as "a measure of the
dose of any ionizing radiation to body tissues in terms of its
estimated biological effect relative to a dose of one roentgen
(r) of X-rays").


                                 12
than 100 isotopes of almost 100 radioactive elements and provides

the maximum permissible level of releases.   Defendants admit that

the radiation levels at the boundary of the TMI facility exceeded

the § 20.106 standards after the 1979 accident.0   Nevertheless,

they claim that no plaintiff was in an area exposed to the

impermissible levels.
                        2.   10 C.F.R. Part 50

          In order to understand the ALARA concept and whether it

forms part of the standard of care, it is necessary to examine

Part 50 of 10 C.F.R. ch. 1, which covers the "Domestic Licensing

of Production and Utilization Facilities."   Section 50.34a(a)

requires that applications for construction permits include

certain information about equipment design:
               An application for a permit to construct
          a nuclear power reactors [sic] shall . . .
          also identify the design objectives, and the
          means to be employed, for keeping levels of
          radioactive material in effluents to
          unrestricted areas as low as is reasonably
          achievable. The term "as low as is
          reasonably achievable" as used in this part
          means as low as is reasonably achievable
          taking into account the state of technology,
          and the economics of improvements in relation
          to benefits to the public health and safety
0
 See Appellants' Brf. at 6 ("[T]he concentrations of
radioactivity at the site boundary exceeded the permissible
levels set by 10 C.F.R. § 20.106 (1979)); id. at 33
("[D]efendants would concede" that "the amount of radiation at
the edge of Three Mile Island exceeded the federal permissible
dose levels"). Nevertheless, defendants contend "that no excess
releases reached any inhabited areas, much less those inhabited
by Plaintiffs. For example, Defendants' evidence indicates that
the only regions where the effluents and the dose exceeded the
federal levels were Three Mile Island itself, some of the
Susquehanna River, and some other uninhabited islands in the
river." In re TMI Litig. Cases Consol. II, No. 88-1452, slip op.
at 34 n.10 (M.D. Pa. Feb. 18, 1994).


                                 13
          and other societal and socioeconomic
          considerations, and in relation to the
          utilization of atomic energy in the public
          interest. The guides set out in Appendix I
          provide numerical guidance on design
          objectives for light-water-cooled nuclear
          power reactors to meet the requirements that
          radioactive material in effluents released to
          unrestricted areas be kept as low as is
          reasonably achievable. These numerical
          guides for design objectives and limiting
          conditions for operation are not to be
          construed as radiation protection standards.

          Section 50.36a lists technical specifications "to keep

releases of radioactive materials to unrestricted areas during

normal reactor operations, including expected operational

occurrences, as low as is reasonably achievable."   § 50.36a(a).

Subsection (b) provides in part:
          Experience with the design, construction and
          operation of nuclear power reactors indicates
          that compliance with the technical
          specifications described in this section will
          keep average annual releases of radioactive
          material in effluents at small percentages of
          the limits specified in § 20.106 of this
          chapter and in the operating license. At the
          same time, the licensee is permitted the
          flexibility of operation, compatible with
          considerations of health and safety, to
          assure that the public is provided a
          dependable source of power even under unusual
          operating conditions which may temporarily
          result in releases higher than such small
          percentages, but still within the limits
          specified in § 20.106 of this chapter and the
          operating license. It is expected that in
          using this operational flexibility under
          unusual operating conditions, the licensee
          will exert his best efforts to keep levels of
          radioactive material in effluents as low as
          practicable. The guides set out in Appendix
          I provide numerical guidance on limiting
          conditions for light-water-cooled nuclear
          power reactors to meet the requirement that
          radioactive materials in effluents released



                               14
          to unrestricted areas be kept as low as is
          reasonably achievable.

          Appendix I to Part 50, referenced in §§ 50.34a and

50.36a, then provides:
          numerical guides for design objectives and
          limiting conditions for operation to assist
          applicants for, and holders of, licenses for
          light-water-cooled nuclear power reactors in
          meeting the requirements of §§ 50.34a and
          50.36a that radioactive material in effluents
          released from those facilities to
          unrestricted areas be kept as low as is
          reasonably achievable. Design objectives and
          limiting conditions for operation conforming
          to the guidelines of this Appendix shall be
          deemed a conclusive showing of compliance
          with the "as low as is reasonably achievable"
          requirements of 10 C.F.R. 50.34a and 50.36a.
          Design objectives and limiting conditions for
          operations differing from the guidelines may
          also be used, subject to a case-by-case
          showing of a sufficient basis for the
          findings of "as low as is reasonably
          achievable" required by §§ 50.34a and 50.36a.

          The Part 50 Appendix I standards, governing permissible

radiation releases, were set far below the levels permitted by

§§20.105 and 20.106.   The parties apparently agree that a plant

operator's compliance with the Appendix I guidelines will shield

it from liability.   But they disagree on whether an operator's

compliance with the higher emission levels permitted by §§ 20.105

and 20.106 also suffices to protect it from liability.
                          IV.   Duty of Care

          A fundamental disagreement in this case centers on

which of the federal regulations, or combination thereof, sets

the applicable standard of care for nuclear power defendants.

Plaintiffs contend the ALARA regulations articulate the duty owed




                                15
by defendants, while defendants claim that 10 C.F.R. §§ 20.105

and 20.106 govern.

           The district court held that a "tri-level scheme,"

combining the ALARA regulations and 10 C.F.R. § 20.106,

constituted the applicable standard of care.     In re TMI Litig.

Cases Consol. II, No. 88-1452, slip op. at 28 (M.D. Pa. Feb. 18,

1994).   The court found that nuclear power defendants could not

be held liable for radiation emissions below the minimum levels

set by Appendix I of 10 C.F.R. part 50.   Id.     The court

continued:
           [I]f Plaintiffs can prove that Defendants'
           emissions exceeded those levels set out in
           §20.106, Defendants will have violated the
           relevant standard of care and will be held
           liable, provided Plaintiffs are also able to
           satisfy the causation and harm elements of
           their claims. If the evidence indicates that
           emissions levels fall between the two
           standards, Defendants may be held liable if
           Plaintiff can prove (along with the causation
           and harm prongs) that Defendants did not use
           their best efforts to reduce radioactive
           emissions.

Id. at 29.    Both plaintiffs and defendants challenge this holding

and, as we have noted, the district court certified whether 10

C.F.R. §§ 20.105 and 20.106, and not ALARA, constitute the

applicable standard of care.
         A.   Development of Radiation Protection Standards

           We begin our analysis with a review of 10 C.F.R.

§§20.105 and 20.106.   In 1957, the Atomic Energy Commission

("AEC") issued regulations "to establish standards for the

protection of [nuclear plant] licensees, their employees and the

general public against radiation hazards."      25 Fed. Reg. 8595,


                                 16
8595 (1960).   The dosage for persons in "unrestricted areas" (the

public) was limited to ten percent of that permitted for persons

in "restricted areas" (plant employees).    22 Fed. Reg. 548, 549

(1957).   The preface to the regulation explained, "It is believed

that the standards incorporated in these regulations provide, in

accordance with present knowledge, a very substantial margin of

safety for exposed individuals.    It is believed also that the

standards are practical from the standpoint of licensees."     Id.

          In 1960, the AEC substantially revised these

regulations.   Upon recommendations from the Federal Radiation

Council0 and the National Committee on Radiation Protection,0 the

AEC promulgated §§ 20.105 and 20.106, setting 0.5 rem as the

maximum yearly radiation exposure allowed for the general



0
  A 1959 amendment to the Atomic Energy Act created the Federal
Radiation Council and ordered it to "consult qualified scientists
and experts in radiation matters" in order "to advise the
President with respect to radiation matters, directly or
indirectly affecting health, including guidance for all Federal
agencies in the formulation of radiation standards . . . ." Pub.
L. No. 86-373, 73 Stat. 688, 690 (1959). Upon the establishment
of the Environmental Protection Agency in 1970, the functions of
the council were transferred to the EPA, and it was abolished.
See Reorganization Plan No. 3 of 1970, 84 Stat. 2086, 2088-89
(1970); 35 Fed. Reg. 15623, 15624, 15626 (1970).
0
  The National Bureau of Standards sponsored the creation of the
Advisory Committee on X-ray and Radium Protection in 1929. In
1954, after the advent of atomic energy, the committee changed
its name to the National Committee on Radiation Protection. See
U.S. Dep't of Commerce, Permissible Dose From External Sources of
Ionizing Radiation: National Bureau of Standards Handbook 59 iii
(1954). In 1964, Congress transformed the committee into the
National Council on Radiation Protection and Measurements and
charged it with developing information and recommendations
concerning radiation protection. Pub. L. No. 88-376, §§ 3, 16,
78 Stat. 320, 321, 324 (1964) (codified at 36 U.S.C. §§ 4501-17
(1988)).


                                  17
public.0   25 Fed. Reg. 8595, 8595 (1960).   The AEC concluded the

new regulations represented "an appropriate regulatory basis for

protection of the health and safety of employees and the public

without imposing undue burdens upon licensed users of radioactive

material."    Id.   The AEC stated:
                  Recommended limits on exposure, based
             upon extensive scientific and technical
             investigation and upon years of experience
             with the practical problems of radiation
             protection, represent a consensus as to the
             measures generally desirable to provide
             appropriate degrees of safety in the
             situations to which these measures apply.
             While the numerical values for exposure
             limits established in this regulation provide
             a conservative standard of safety, the nature
             of the problem is such that lower exposure
             limits would be used if considered practical.
             At the same time, if there were sufficient
             reason, the use of considerably higher
             exposure limits in this regulation would not
             have been considered to result in excessive
             hazards.

Id.   Four years later, in 1964, the AEC amended § 20.106 (and the

Appendix B levels to which § 20.106 refers) to incorporate new

recommendations made by the Federal Radiation Council to the

President.    See 29 Fed. Reg. 14434, 14434 (1964); see also 28

Fed. Reg. 10170, 10171 (1963).     The new limitations were designed

0
 In 1991, the NRC issued new regulations reducing the annual
permissible exposure rate for the public to 0.1 rem per
individual -- down from the 0.5 rem standard that had existed for
more than three decades. See 10 C.F.R. § 20.1301 (1995); 56 Fed.
Reg. 23398 (1991). The 1991 regulations adopted recommendations
made by the International Commission on Radiological Protection
in 1977. See Leonard S. Greenberger, NRC Amends Radiation
Protection Requirements, Pub. Util. Fortnightly, Jan. 15, 1991,
at 54, 54. Even with these reductions, the permissible exposure
rate for the public in the United States remained higher than the
.05 rem public exposure limit in Great Britain and the .03 rem
limit in Germany. See id.


                                  18
"to protect individuals in the general population from exposure

to radiation as a result of intake of radioactivity through air

and water."     Id.   These regulations remained in effect at the

time of the TMI accident in 1979.0
                       B.   Development of ALARA

          A decade after promulgation of §§ 20.105 and 20.106,

the Atomic Energy Commission amended 10 C.F.R. parts 20 and 50 to

incorporate an early version of the ALARA rule.      35 Fed. Reg.

18385 (1970).    The AEC noted that a general purpose of its

regulatory policy was to ensure "radiation exposures to the

public should be kept as low as practicable."      Id. at 18386-87

(promulgating §§ 20.1(c)).     The AEC then promulgated two sections

in Part 50 to further this policy.      First, it added § 50.34a to

ensure that applicants for nuclear license permits identified

"the design objectives, and the means to be employed," for

keeping levels of radioactive material in effluents as low as

practicable.    Second, it enacted § 50.36a to require that

licenses issued to nuclear operators include technical

specifications to keep releases of radiation as low as

practicable.    Id. at 18387-88.
          In 1975, these regulations were modified in two ways.

First, the Nuclear Regulatory Commission, the statutory successor

to the Atomic Energy Commission,0 added Appendix I0 to define the

0
  The regulations have been significantly modified since 1979. See
generally 10 C.F.R. chs. 20, 50 (1995).
0
  The Atomic Energy Commission's regulatory functions were
transferred to the Nuclear Regulatory Commission in 1974. See 40
Fed. Reg. 19439 (1975) (citing Energy Reorganization Act of 1974,
Pub. L. No. 93-438, § 201(f), 88 Stat. 1242-43).


                                   19
"as low as practicable" admonition with numerical criteria. But

in doing so the agency emphasized the criteria were not to be

considered "radiation protection standards."         40 Fed. Reg. 19439,

19439 (1975).     Second, the NRC replaced the term "as low as

practicable" with "as low as reasonably achievable"; the former

term was deemed "less precise" and already had been replaced by

the International Commission on Radiological Protection

("ICRP").0    Id. at 58847.
                              C.   Case Law

             In framing their arguments, both plaintiffs and

defendants rely on decisional law, although we find the

applicable case law inconclusive.        Plaintiffs, as well as the

district court, cite Crawford v. National Lead Co., 784 F. Supp.

439 (S.D. Ohio 1989).     In Crawford, neighbors of a uranium

production plant sued over the plant's discharge of uranium into

the atmosphere and a nearby river.        In denying defendants' motion

for summary judgment, the district court found sufficient

evidence of state law violations.        The court decided there was

"no conflict between state tort law and the federal interests at

issue here," because it found defendants had violated pertinent

federal regulations, including ALARA.         Id. at 447.   Although the

0
 For a description of Appendix I, see supra part III.B.2.
0
 The ICRP is an "international radiation standards setting
agency." Robert K. Temple, Regulation of Nuclear Waste and
Reactor Safety within the Commonwealth of Independent States:
Toward a Workable Model, 69 Chi.-Kent L. Rev. 1071, 1088 (1994).
Formed in 1928 to "discuss and recommend safety standards for the
use of radiation," its recommendations have become a primary
basis for federal government regulation of the nuclear industry.
A Guide to Toxic Torts (MB), § 36.03[5](b), at 36-55 (1995).


                                    20
opinion cites favorably to the ALARA requirement, the court

conducted a cursory review of the federal regulatory scheme and

discussed the federal regulations only to demonstrate the absence

of a conflict with state law.

          For their part, defendants cite Akins v. Sacramento

Municipal Utililty District, 8 Cal. Rptr. 2d 785 (Cal. Ct. App.

1992), dismissed, 868 P.2d 905 (Cal. 1994), a suit alleging

excessive discharges of radioactive materials from the Rancho

Seco Nuclear Power Plant.   The court noted that Appendix I and

the ALARA standard in § 50.36a(b) were not radiation protection

standards, see id. at 794 n.7, and affirmed the grant of

defendants' motion for summary judgment.   The court held that the

evidence established that "no one, including any of the

plaintiffs, was actually exposed to dosages of radiation which

were more than a small fraction of the NRC and EPA standards."

Id. at 814.

          Defendants also cite several cases involving nuclear

plant employees suing over alleged radiation exposures.    In these

cases, courts routinely applied the parallel federal regulations

governing persons in "restricted areas," see supra note 12, but
did not apply ALARA.   For example, in O'Conner v. Commonwealth

Edison Co., 748 F. Supp. 672 (C.D. Ill. 1990), aff'd, 13 F.3d

1090, 1103-05 (7th Cir.), cert. denied, 114 S. Ct. 2711 (1994), a

nuclear plant worker filed suit against the operator of the

plant, alleging injuries from radiation exposure.   After an

analysis of the federal regulatory scheme, the district court

held that the limits set in 10 C.F.R. § 20.101 (applicable to


                                21
workers on site, just as §§ 20.105 and 20.106 apply to persons

off site) supplied the duty of care.   The court, without

mentioning the ALARA regulations, stated:
               These federal permissible dose limits
          are based upon the national and international
          scientific consensus as to the hypothetical
          risk from exposure to low occupational levels
          of ionizing radiation. . . .

               In determining the likelihood of the
          injury from radiation, this Court believes
          that it should give deference to the
          administrative regulations which are the
          result of the agency's applied expertise.

Id.   The Seventh Circuit affirmed the district court's ruling

that federal law preempts state tort law and that the a

legislative enactment or an administrative regulation."

Restatement (Seconcable standard of care.   O'Conner, 13 F.3d 1090

(7th Cir.), cert. denied, 114 S. Ct. 2711 (1994).

          Similarly, in Hennessy v. Commonwealth Edison Co., 764

F. Supp. 495 (N.D. Ill. 1991), a nuclear plant worker received a

routine medical exam and learned he had been contaminated with a

radioactive material, but at a level below that permitted by 10

C.F.R. § 20.103 (setting permissible levels for plant workers).

Although he claimed no physical injury from the exposure, he sued

under strict liability and for battery and negligent infliction

of emotional distress.   The district court granted summary

judgment to defendants, but stated in dicta that ALARA might have

constituted part of the relevant standard of care.   Id. at 502.0

0
 For other cases in which courts have used the chapter 20
permissible radiation levels as the standard of care in suits by
nuclear plant employees, see Coley v. Commonwealth Edison Co.,
768 F. Supp. 625 (N.D. Ill. 1991) (granting summary judgment to


                                22
          Although instructive, these cases do not resolve the

precise issue here.   Nevertheless, we note that no court appears

to have actually applied ALARA as part of the duty of care.




defendant nuclear power plant because "the NRC regulations
[specifically, § 20.102(b)] are determinative of the standard of
care in occupational exposure cases"); Whiting v. Boston Edison
Co., No. 88-2125 (D. Mass. Sept. 5, 1991) ("[T]he Federal
Permissible Dose Standard constitutes the duty of care owed to
the decedent in this case."); Jurka v. Commonwealth Edison Co.,
No. 88-C-7852 (N.D. Ill. Aug. 9, 1990) (granting summary judgment
against worker because plant did not exceed regulatory levels of
exposure permitted by § 20.101(b)). None of these cases
discusses or applies ALARA. But see Silkwood v. Kerr-McGee
Corp., 485 F. Supp. 566, 580-83 (W.D. Okla. 1979) (holding state
law not inconsistent with, and therefore not preempted by,
federal radiation standards, including ALARA), aff'd in part,
rev'd in part, 667 F.2d 908 (10th Cir. 1981), rev'd, 464 U.S. 238
(1984).


                                23
                        D.   Duty of Care

          After reviewing the regulations, the reasons behind

their promulgation, and the relevant case law, we hold that

§§20.105 and 20.106 constitute the federal standard of care.0

These regulations represent the considered judgment of the
0
 The Restatement (Second) of Torts expressly provides that, in
certain situations, a "court may adopt as the standard of conduct
of a reasonable man the requirements of a legislative enactment
or an administrative regulation." Restatement (Second) of Torts
§ 286 (1965); see also W. Page Keeton et al., Prosser and Keeton
on the Law of Torts § 36, at 220 (5th ed. 1984) (citing numerous
cases) ("When a statute provides that under certain circumstances
particular acts shall be done or not done, it may be interpreted
as fixing a standard for all members of the community, from which
it is negligence to deviate. The same may be true of . . .
regulations of administrative bodies."). We believe it
appropriate to adopt §§ 20.105 and 20.106 as the standard of
conduct in this situation. As one commentator noted:

               The element of breach of duty is a
          critical issue in the adjudication of
          radiation cases and one that presents
          significant problems. The problems arise out
          of the necessity to create or adopt a legally
          sufficient standard by which to measure
          breach. The answer to the problem in this
          highly regulated area should be
          straightforward: compliance or noncompliance
          with applicable government safety standards
          provides an excellent measure of breach.

David S. Gooden, Radiation Injury and the Law, 1989 B.Y.U. L.
Rev. 1155, 1167-68 (1989); see also John C. Berghoff, Jr., NRC
Regulations as a Standard for Legal Actions: Has the Public
Shield Been Forged Into a Private Sword?, in Nuclear Litigation
1984, at 57, 66 (PLI Litig. & Admin. Practice Course Handbook
Series No. 272, 1984) ("It can be argued that the nuclear
industry is appropriate for considering compliance to be
conclusive proof of 'non-negligence' because Congress and the NRC
have retained such close control over radiological hazards. The
nation's leading experts on radiation danger were involved in
establishing the federal standards, and a reasonably prudent
person should be able to rely on them as a standard of
conduct."). But see id. (offering alternative interpretations of
the regulations).


                                24
relevant regulatory bodies -- the Federal Radiation Council, EPA,

AEC, and NRC -- on the appropriate levels of radiation to which

the general public may be exposed.0   See, e.g., 25 Fed. Reg.

8595, 8595 (1960) (Sections 20.105 and 20.106 "provide an

appropriate regulatory basis for protection of the health and

safety of employees and the public without imposing undue burdens

upon licensed users of radioactive material.").    In fact, the

heading for this category of regulations is "Permissible Doses,

Levels, and Concentrations," and the relevant regulations are

phrased in terms of the maximum levels of radiation that may be

released.   See 10 C.F.R. §§ 20.101-.108.

            Although plaintiffs assert that § 20.105 applies

exclusively to nuclear plant employees, we disagree.    Part 20 of

10 C.F.R. ch. 1 is divided into separate sections governing

permissible dose limits for individuals in "restricted areas,"

see §§ 20.101, 20.103, and "unrestricted areas," see §§ 20.105,

20.106.   The definitions of "restricted" and "unrestricted

areas"0 demonstrate that the C.F.R. sections governing persons in

"unrestricted areas" were intended to cover persons outside a

nuclear plant's boundaries, i.e., the general public.    The case

law, while differing over the use of the ALARA standard, appears

to have uniformly accepted this meaning.    See, e.g., Akins, 8
Cal. Rptr. 2d at 794; Crawford, 784 F. Supp. at 447.


0
  As we have noted, these agencies have promulgated different
standards regarding radiation levels for workers at nuclear power
plants. See 10 C.F.R. §§ 20.101-.104; see also supra part
III.B.1.
0
  See supra notes 12-13.


                                 25
             Plaintiffs also contend that the Part 20 dose standards

govern only during normal operating conditions, not during

accidents.    But neither the language of the regulations nor its

history suggests this interpretation.         Instead, we believe the

Part 20 dose limits were intended as the maximum permitted under

all conditions, accident and normal operations alike.         The NRC

itself has adopted this interpretation, stating it "believes that

the dose limits for normal operation should remain the primary

guidelines in emergencies," 56 Fed. Reg. 23360, 23365 (1991), and

we believe this agency interpretation is entitled to some

deference.    See Chevron, U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 844 (1984).

             For many of the same reasons that we adopt §§ 20.105

and 20.106 as the applicable standard of care, we reject the

ALARA regulations as part of that standard.         First, we believe

the language of the ALARA regulations compels this result.

Section 50.34a explicitly provides:
          The guides set out in Appendix I provide
          numerical guidance on design objectives for
          light-water-cooled nuclear power reactors to
          meet the requirements that radioactive
          material in effluents released to
          unrestricted areas be kept as low as is
          reasonably achievable. These numerical
          guides for design objectives and limiting
          conditions for operation are not to be
          construed as radiation protection standards.

(emphasis added).    The regulation could not be more clear.         The

guidelines that satisfy ALARA "are not to be construed as

radiation protection standards."       Id.0   In fact, § 50.36a(b)
0
 We recognize some ambiguity in the regulatory history on whether
ALARA is intended to serve as a radiation protection standard,

                                  26
expressly permits continued operation of a nuclear plant if

radiation releases rise above the Appendix I ALARA levels so long

as they remain "within the limits specified in § 20.106."0

          Second, the regulation that incorporated the Appendix I

guidelines (that contains ALARA language) explained that the

"radiation protection standards" of 10 C.F.R. Part 20 continued

to protect public health:
               It should be emphasized that the
          Appendix I guides as here adopted by the
          Commission are not radiation protection
          standards. The numerical guides of Appendix
          I which we announce today are a quantitative
          expression of the meaning of the requirement
          that radioactive material in effluents
          released to unrestricted areas . . . be kept
          "as low as practicable."

               The Commission's radiation protection
          standards, which are based on recommendations
          of the Federal Radiation Council (FRC) as
          approved by the President, are contained in
          10 CFR Part 20, "Standards for Protection
          Against Radiation," and remain unchanged by
          this Commission decision. . . . [T]hese FRC
          standards which have been previously adopted
          give appropriate consideration to the overall
          requirements of health protection and the

see, e.g., 40 Fed. Reg. 19439, 19440 (1975); 35 Fed. Reg. 18385,
18386 (1970); Staff Report of the Federal Radiation Council,
Background Material for the Development of Radiation Protection
Standards, May 13, 1960, at 26; Staff Report of the Federal
Radiation Council, Background Material for the Development of
Radiation Protection Standards, Sept. 1961, at 1, but we are
unpersuaded by these ambiguous regulatory statements.
0
  In 1987, President Reagan approved an EPA memorandum that
revised radiation protection standards for nuclear plant
employees. That EPA memorandum noted that "[t]he recommendation
that Federal agencies, through their regulations, operational
procedures and other appropriate means, maintain doses ALARA is
not intended to express, and therefore should not be interpreted
as expressing, a view whether the ALARA concept should constitute
a duty of care in tort litigation." 52 Fed. Reg. 2822, 2826
(1987).

                               27
          beneficial use of radiation and atomic
          energy. The Commission believes that the
          record clearly indicates that any biological
          effects that might occur at the low levels of
          these standards have such low probability of
          occurrence that they would escape detection
          by present-day methods of observation and
          measurement.

40 Fed. Reg. 19439, 19439-40 (1975).

          Furthermore, as we have noted, the Atomic Energy

Commission adopted the reasoning of the Federal Radiation Council

in promulgating the ALARA regulations.   The Federal Radiation

Council stipulated it had intended that federal agencies would

determine the reasonableness of radiation releases.   See Staff
Report of the Federal Radiation Council, Background Material for

the Development of Radiation Protection Standards, May 13, 1960,

at 38 ("The Federal agencies should apply these Radiation

Protection Guides with judgment and discretion, to assure that

reasonable probability is achieved in the attainment of the

desired goal of protecting man from the undesirable effects of

radiation.   The Guides may be exceeded only after the Federal

agency having jurisdiction over the matter has carefully

considered the reason for doing so . . . ."); Staff Report of the

Federal Radiation Council, Background Material for the

Development of Radiation Protection Standards, Sept. 1961, at 2

("[N]o exposure to radiation should be permitted unless . . .

[t]he various benefits to be expected as a result of the

exposure, as evaluated by the appropriate responsible group, must

outweigh the potential hazard or risk . . . .").




                                28
            Finally, ALARA is defined as meaning "as low as is

reasonably achievable taking into account the state of

technology, and the economics of improvements in relation to

benefits to the public health and safety, and other societal and

socioeconomic considerations, and in relation to the utilization

of atomic energy in the public interest."      See §§ 20.1(c);

50.34a(a).    As the district court noted, if jurors make the ALARA

determination, then this "results, essentially, in a negligence

standard."    In re TMI Litig. Cases Consol. II, No. 88-1452, slip

op. at 29 (M.D. Pa. Feb. 18, 1994).     Adopting ALARA as part of

the standard of care would put juries in charge of deciding the

permissible levels of radiation exposure and, more generally, the

adequacy of safety procedures at nuclear plants -- issues that

have explicitly been reserved to the federal government in

general and the NRC specifically.      See Pacific Gas & Elec., 461

U.S. at 212 ("[T]he Federal Government maintains complete control

of the safety and 'nuclear' aspects of energy generation. . .

.").0

             Adoption of a standard as vague as ALARA would give no

real guidance to operators and would allow juries to fix the

standard case by case and plant by plant.     An operator acting in

the utmost good faith and diligence could still find itself

liable for failing to meet such an elusive and undeterminable

standard.    Our holding protects the public and provides owners


0
 Defendants concede that the NRC may cite operators of nuclear
plants when it believes they have not complied with ALARA. Our
holding does not diminish this NRC authority.


                                  29
and operators of nuclear power plants with a definitive standard

by which their conduct will be measured.0
           V.   Exposure Relevant to Duty or Causation?

           The second certified question asks, "Whether a

particular Plaintiff's level of exposure to radiation or

radioactive effluents relates solely to causation or also to the

duty owed by Defendants."   The district court held that, to prove

a breach of duty, plaintiffs need not prove they were located in

areas in which radiation exceeded permissible levels.     Instead,

the court concluded that such evidence is relevant only to

determine causation, i.e., whether plaintiffs' injuries were

caused by the TMI accident.   See In re TMI Litig. Cases Consol.

II, No. 88-1452, slip op. at 30-31 (M.D. Pa. Feb. 18, 1994).

           Defendants contend that plaintiffs must establish that

they were located in areas exposed to radiation in excess of that

allowed under §§ 20.105 and/or 20.106 to establish a breach of

duty.   Like the district court, we disagree.
                     A.   Regulatory Language

0
 As one court noted, in adopting parallel regulations applicable
to nuclear plant workers as the standard of care:

                In a highly technical field such as
           this, although a plaintiff should be provided
           a very high level [of] protection from
           excessive exposure to radiation, a defendant
           public utility should also be provided with
           some clear statement regarding how it may
           limit a worker's dose without exposing the
           worker to injury or itself to liability.

O'Conner v. Commonwealth Edison Co., 748 F. Supp. 672, 678 (C.D.
Ill. 1990), aff'd, 13 F.3d 1090, 1103-05 (7th Cir.), cert.
denied, 114 S. Ct. 2711 (1994).


                                30
           The language of §§ 20.105 and 20.106, which regulate

off-site radiation exposures, does not suggest that a breach

occurs only when persons are exposed to excessive radiation.

Instead, the regulations provide that a breach occurs whenever

excessive radiation is released, whether or not anyone is present

in the area exposed.   Because the relevant unit of measurement

(the rem) defines radiation levels in terms of their effect on

persons, see supra note 14, the regulations must define

impermissible radiation levels in the same way.   For example,

§20.105(b) prohibits "[r]adiation levels which, if an individual

were continuously present in the area, could result in his

receiving a dose in excess of two millirems in any one hour," or

"[r]adiation levels which, if an individual were continuously

present in the area, could result in his receiving a dose in

excess of 100 millirems in any seven consecutive days."   As the

language suggests, this regulation does not prohibit only those

emissions that actually expose individuals to certain radiation

levels.   Instead, the regulation prohibits releases that could

result in certain radiation levels if persons were present in the

area.   We believe the regulation would not use the conditional,

"if," if it was meant to specify that persons must be present in

the area exposed.

           Similarly, the language of § 20.106 provides, "For

purposes of this section the concentration limits in Appendix

'B', Table II of this part shall apply at the boundary of the

restricted area."   The regulation does not require that any

person actually be present at the boundary line; it merely states


                                31
that the regulation is violated if the radiation at the boundary

exceeds the Appendix B limits.0

           Therefore, the regulations provide that a violation

occurs whenever radiation exceeds the §§ 20.105 and 20.106 levels

-- whether or not persons actually are located in the exposed

areas.   These regulations resemble those governing other areas of

environmental safety, where the duty is breached by the release

of pollutants, not by any subsequent personal injury.0

0
  Section 20.106(d) mandates that "the concentration limits in
Appendix 'B', Table II of this part shall apply at the boundary
of the restricted area," except "[t]he concentration of
radioactive material discharged through a stack, pipe or similar
conduit may be determined with respect to the point where the
material leaves the conduit." Therefore, to be precise, the
regulation is violated when radiation exceeds the § 20.106 levels
at the boundary of the facility or, if applicable, at a conduit
exit.
0
  For example, even absent allegations of personal injury, the EPA
may impose penalties for, inter alia, violations of statutes and
regulations governing air pollution, see United States v. B & W
Investment Properties, 38 F.3d 362, 364 (7th Cir. 1994), cert.
denied, 115 S. Ct. 1998 (1995); and toxic substances, see Alm
Corp. v. United States EPA, Region II, 974 F.2d 380, 381-82 (3d
Cir. 1992), cert. denied, 113 S. Ct. 1412 (1993). Similarly,
"the NRC is authorized to impose civil penalties on licensees
when federal standards have been violated." Silkwood v. Kerr-
McGee Corp., 464 U.S. 238, 257 (1984) (citing 42 U.S.C. § 2282).
These fines are available for violations of "any applicable rule,
regulation or order related to nuclear safety," 42 U.S.C. § 2282
(1988), not just those violations that result in personal injury.
In fact, although defendants contend that no one was injured by
the TMI accident, they received a $155,000 fine for violations of
various NRC regulations and technical specifications. See Diane
Sponseller, The Increasing Use of Fines as an Enforcement
Mechanism, Pub. Util. Fortnightly, May 11, 1989, at 42, 42; see
also Letter from Victor Stello, Jr., Director, NRC Office of
Inspection and Enforcement, to R.C. Arnold, Sr. Vice President,
Metropolitan Edison Company (Oct. 25, 1979). The penalty would
have been higher -- regulators had wanted to fine defendants
$725,000 for the violations -- but they were limited by a $25,000
per month maximum on fines then imposed by the Atomic Energy Act.
See id. at 3.


                                  32
                             B.   Tort Law

            Despite the regulations, defendants argue that, under

traditional tort law principles, whether there has been a breach

of duty is specific to each plaintiff.       Thus, defendants contend

that the duty element requires a showing that each individual

plaintiff was exposed to radiation exceeding the §§ 20.105 and/or

20.106 permissible levels.

            Under Pennsylvania law0 and traditional tort

principles, a negligence cause of action requires proof of four

elements:
            1)   A duty or obligation recognized by the
                 law, requiring the actor to conform to a
                 certain standard of conduct for the
                 protection of others against
                 unreasonable risks;

            2)   A failure to conform to the standard
                 required;

            3)   A causal connection between the conduct
                 and the resulting injury; and

            4)   Actual loss or damage resulting to the
                 interests of another.

Griggs v. BIC Corp., 981 F.2d 1429, 1434 (3d Cir. 1992)

(citations omitted); see also Kleinknecht v. Gettysburg College,

989 F.2d 1360, 1366 (3d Cir. 1993); Morena v. South Hills Health

Sys., 462 A.2d 680, 684 n.5 (Pa. 1983); W. Page Keeton et al.,


0
 As we have noted, the 1988 Amendments retroactively required the
applicable law for "public liability actions" be "the law of the
State in which the nuclear incident involved occurs, unless such
law is inconsistent" with federal law. 42 U.S.C. § 2014(hh)
(1988). Although we have held that federal law preempts state
tort law on the standard of care, see supra part II, we find it
useful to refer to state tort law in construing the relationship
between the elements of duty and causation.


                                  33
Prosser and Keeton on the Law of Torts § 30, at 164-65 (5th ed.

1984).

          Whether a defendant owes a duty to a plaintiff is a

question of law.   Kleinknecht, 989 F.2d at 1366; see also

Restatement (Second) of Torts § 328B (1965) (court determines

whether "facts give rise to any legal duty on the part of the

defendant" and "the standard of conduct required of the defendant

by his legal duty").   Furthermore, the determination "whether to

impose a duty is essentially one of policy."   Hoffman v. Sun Pipe

Line Co., 575 A.2d 122, 125 (Pa. Super. Ct. 1990); see also

Keeton et al., supra, § 53, at 358 ("[I]t should be recognized

that 'duty' is not sacrosanct in itself, but is only an

expression of the sum total of those considerations of policy

which lead the law to say that the plaintiff is entitled to

protection.").

          In this case, the applicable regulatory agencies

already have weighed the competing policy considerations.     As we

have noted, the Atomic Energy Commission viewed §§ 20.105 and

20.106 as providing a balance between public safety and

operational practicality.   See 25 Fed. Reg. 8595 (1960). Although
the AEC noted that its regulations provided a "conservative

standard of safety," it said it realized that "lower exposure

limits would be used if considered practical" and "considerably

higher exposure limits . . . would not have been considered to

result in excessive hazards."   Id.   Thus, the federal regulatory

agencies have analyzed the competing policies in defining

acceptable (and non-acceptable) conduct.   We hold that the duty


                                34
of care is measured by whether defendants released radiation in

excess of the levels permitted by §§ 20.105 or 20.106, as

measured at the boundary of the facility, not whether each

plaintiff was exposed to those excessive radiation levels.

           Because defendants conceded that they violated §20.106,

they violated their duty of care, thus satisfying the first and

second elements of a negligence action.0   See Griggs, 981 F.2d at

1434.   Of course, plaintiffs still must prove causation and

damages before they may recover.     Id.

           This situation is analogous to the practice followed by

many jurisdictions with negligence per se cases.   In such cases,

where defendants violated the relevant statute or regulation,

courts have held as a matter of law that plaintiffs have

satisfied the first two elements of their cause of action: the

duty and breach of duty.   Nevertheless, "[t]here will still

remain open such questions as the causal relationship between the

violation and the harm to the plaintiff . . . ."   Keeton et al.,

supra, § 36, at 230; see also 1 J.D. Lee & Barry A. Lindahl,

0
 We note that "the scope of the duty not to place others at risk
is limited to those risks which are reasonably foreseeable."
Maxwell v. Keas, 639 A.2d 1215, 1217 (Pa. Super. Ct. 1994); see
also Keeton et al., § 43, at 280 (negligence "necessarily
involves a foreseeable risk"). Thus, there may be cases in which
plaintiffs were located far enough away from a defendant's power
plant that any injuries from excessive radiation released at the
boundary of the plant would be unforeseeable. See, e.g.,
Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).
Nevertheless, we believe it is entirely foreseeable for nuclear
power plant operators to expect that any excessive radiation
releases might cause harm, even if the injured were not at the
precise spots where the radiation exceeded federal levels, but
instead were located in areas where radiation could spread via
wind, rain, or water.


                                35
Modern Tort Law: Liability & Litigation, § 3.33, at 102 (1980)

("Under the per se rule, the violation of an applicable statute

is conclusive proof of negligence, leaving only the question of

causation to be determined.") (footnote omitted).

          But defendants contend that, if individual radiation

exposures are not considered in determining breach of duty, they

will be forced to stand trial on potentially thousands of

meritless claims.   We disagree.    As part of the causation

inquiry, each plaintiff must demonstrate exposure to radiation

released during the TMI accident.       See In Re Paoli Railroad Yard

PCB Litigation, 916 F.2d 829, 860 (3d Cir. 1990) (holding

exposure to be an element of claim for injuries from hazardous

substance), cert. denied, 499 U.S. 961 (1991); In re "Agent

Orange" Prod. Liab. Litig., 996 F.2d 1425, 1437 (2d Cir. 1993)

(requiring that plaintiffs "demonstrate with sufficient accuracy

their levels of personal exposure to Agent Orange," in addition

to "individual causation, i.e., that Agent Orange exposure caused

the particular illnesses upon which they base their claims"),

cert. denied, 114 S. Ct. 1125 (1994); A Guide to Toxic Torts

(MB), § 10.01[2](a), at 10-5 (1995) ("In toxic tort litigation,

however, causation is not a simple matter for the jury.      The

plaintiff must establish by a preponderance of evidence the

presence of the injury-causing substance, that he or she has been

exposed to the substance, and that the exposure has resulted in

certain injuries.").0

0
 See also Latimer v. SmithKline & French Labs., 919 F.2d 301, 304
(5th Cir. 1990) (mandating evidence of "the requisite exposure"


                                   36
          In Paoli, plaintiffs claimed they were injured by

exposure to high levels of polychlorinated biphenyls, better

known as PCBs.   We agreed with the district court that

plaintiffs' prima facie case consisted of four elements:
          1) that defendants released PCBs into the
          environment; 2) that plaintiffs somehow
          ingested these PCBs into their bodies; 3)
          that plaintiffs have an injury; and 4) that
          PCBs are the cause of that injury.

Id.; see also Hines v. Consolidated Rail Corp., 926 F.2d 262, 275

(3d Cir. 1991) (quoting Paoli's four required elements).

          The first element represents a combination of the

traditional duty and breach of duty elements, as stated in

Griggs, supra; it assumes that defendants had a duty not to

release PCBs into the environment but did so anyway.      The

remainder of the Paoli factors breaks up the causation and injury

requirements into three elements, adding an "exposure" prong into

the causation and injury inquiry.    As in Paoli, this analysis is

useful here, where the substance that allegedly injured

plaintiffs also occurs naturally in the environment.      This

in case alleging injury from pesticide); Catrett v. Johns-
Manville Sales Corp., 756 F.2d 181, 185 (D.C. Cir. 1985) (noting
that plaintiff has "burden of proving by admissible evidence that
her husband's exposure to Celotex's [asbestos-containing]
products had proximately caused his death"), rev'd on other
grounds, 477 U.S. 317 (1986). Similarly, in Thompson v. Southern
Pacific Transp. Co., 809 F.2d 1167, 1168 (5th Cir.), cert.
denied, 484 U.S. 819 (1987), a railroad brakeman sued his former
employer and a chemical company alleging that exposure to dioxin
caused his illness. Before trial, the chemical company admitted
that dioxin had contaminated its plant site. A jury found for
plaintiff, but the Court of Appeals for the Fifth Circuit
overturned the award. The court noted the plaintiff's evidence
as to causation was insufficient because he failed to produce
adequate evidence showing that he actually was exposed to dioxin
and that dioxin caused his illness. Id. at 1169.


                                37
"exposure" element requires that plaintiffs demonstrate they have

been exposed "to a greater extent than anyone else," i.e., that

their "exposure level exceeds the normal background level."

Paoli, 916 F.2d at 860-61.

            Translated to this case, the Paoli factors require

plaintiffs to show that: 1) defendants released radiation into

the environment in excess of the §§ 20.105 or 20.106 levels; 2)

plaintiffs were exposed to this radiation (although not

necessarily at the levels prohibited by §§ 20.105 and 20.106); 3)

plaintiffs have injuries; and 4) radiation was the cause of those

injuries.   Although defendants concede the first element here,

summary judgment still may be entered on any of the remaining

issues, just as it ordinarily might be entered on the question of

duty or breach thereof.   See, e.g., In re Agent Orange Prod.

Liab. Litig., 611 F. Supp. 1290 (E.D.N.Y. 1985) (granting summary

judgment to defendants because, even accepting plaintiff's claim

that he was exposed to Agent Orange, "there is no proof that the

diseases and symptoms suffered by him were caused by Agent

Orange"), aff'd on other grounds, 818 F.2d 210 (2d Cir. 1987),

cert. denied, 484 U.S. 1004 (1988); Latimer v. SmithKline &
French Labs., 919 F.2d 301, 304 (5th Cir. 1990) (affirming

summary judgment on causation element for defendant in case

alleging injury from pesticide "because the evidence in the

record does not establish the requisite exposure").   Therefore,

contrary to defendants' assertions, our holding on the scope of

their duty will not require them to stand trial on meritless

claims.


                                 38
                          VI.   Conclusion

          In sum, defendants violated their standard of care if

they released radiation exceeding the levels permitted under

§§20.105 and 20.106 -- whether or not individual plaintiffs were

harmed.   Once defendants exceeded the federal standards on

radiation emission, they breached their duty.   Plaintiffs'

exposures to radiation remain relevant, but only to prove

causation and damages.

           For the foregoing reasons, we will affirm in part and

reverse in part.




                                 39
