In a pointed opinion, on June 23, 2015, the Tenth Circuit ruled that defendants Dow Chemical Co. and Rockwell International Corp. had waived any argument that the Price-Anderson Act expressly preempted the plaintiffs’ related state law nuisance claims, and, even if the defendants had not waived that argument, that the PAA is not a complete federal preemption statute that would bar the plaintiffs from asserting a state law nuisance claim in the event that they could not prove a “nuclear incident” under the PAA.
This decision constitutes a marked departure from all other federal circuits that have addressed the issue and, if adopted by other courts, would represent a significant expansion of potential liability for operators in the nuclear energy industry.