United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion for
Remand. (ECF 21). The matter is fully briefed and
ready for disposition.
4, 2017, Plaintiffs filed their Complaint in the Circuit
Court of St. Louis County, Missouri (State court). (ECF 10
(Complaint)). As relevant to the pending Motion to Remand,
Plaintiffs' Complaint alleges the following: The
individual Plaintiffs are all extended members of the Boenker
family, and are owners of the Boenker family farm, which lies
directly adjacent to the Westlake Landfill and the Bridgton
Landfill (jointly, the Landfills); Defendant Republic
Systems, Inc., is and has been responsible for operating the
Landfills; Defendant Bridgeton Landfill, LLC, owns the
Landfills; in 1988, Defendant Westlake Landfill, Inc.,
changed its name to Laidlaw Waste Systems, Inc., and, in
1998, merged into Defendant Bridgeton Landfill, LLC;
Defendant Allied Services, LLC, is the sole member of
Defendant Bridgeton Landfill, LLC, and oversees the operation
and management of the Landfills; Defendant Rock Road
Industries, Inc., owns and/or owned the West Lake Landfill;
Defendants Jared Romaine and David Vasbinder worked at the
Bridgeton Landfill; and Plaintiffs are all citizens of
Missouri and at least one Defendant is a citizen of Missouri.
(ECF 10, ¶¶ 1, 31-37).
further allege that “Defendants own[ed] and operat[ed]
[the Landfills] which accepted radioactive waste without a
license to do so”; that the “radioactive waste 
spread to the Boenker family farm causing personal injury,
property damage, and the need for medical monitoring”;
and that “Defendants have also so mismanaged the
Landfills that an underground fire now burns out of control
and threatens the nuclear waste.” (ECF 10, ¶ 1).
Further, in their Complaint, Plaintiffs allege that 40, 000
tons of radioactive waste was accepted by the Landfills in
1973; that the radioactive waste came from Cotter
Corporation's Latty Avenue site; that Cotter was a
“known possessor of radioactive material at the
time”; and that neither the Landfills' owner nor
operator sought a license from the Nuclear Regulatory
Commission (NRC) prior to accepting and receiving the
Plaintiffs allege that Defendants have previously declared to
this court that the Price Anderson Act (PAA), 42 U.S.C.
§ 2011, et seq., does not apply to them because
the Landfills were not licensed to accept or receive
radioactive materials. Plaintiffs contend that, because
Defendants “were not licensed to accept or receive
radioactive materials and have not entered an indemnification
agreement concerning their acceptance of radioactive
materials, ” the PAA does not apply to Plaintiffs'
claims, Plaintiffs' claims “are not public
liability actions” under the PAA, 42 U.S.C. §
2210, and Plaintiffs, therefore, may proceed in State court.
(ECF 10, ¶¶ 40-41, 43-47). Plaintiffs seek a
judgment against Defendants for compensatory and punitive
damages caused by Defendants' alleged “intentional,
reckless, and/or negligent conduct in owning, operating,
and/or managing the [L]andfills.” They also seek
“Medical Monitoring.” (ECF 10, ¶¶ 2,
further relevant to Plaintiffs' Motion to Remand,
Defendants have submitted a copy of a Source Material License
(the License or 1969 Source Material License) for uranium,
issued to Cotter by the Atomic Energy Commission (AEC), on
December 3, 1969. The License states that the
“[a]uthorized place of use” was Cotter's
facility located at 9200 Latty Avenue, Hazelwood, Missouri;
that the “[m]aximum quantity of source material which
[Cotter] [could] possess at any one time under [the] license
[was] unlimited”; and that the License was to expire on
December 31, 1974. (ECF 32.1). The License authorized Cotter
“to receive, possess and import the [designated] source
material , to use such material for the purpose(s) and at
the place(s) designated , and to deliver or transfer such
material to persons authorized to receive it in accordance
with the regulations” of Title 10 of the Code of
Federal Regulations, Chapter 1, Part 40. (ECF 32.1).
removed this matter from State court to federal court, on
June 9, 2017, pursuant to 28 U.S.C. § 1331, contending
that this Court has subject-matter jurisdiction over
Plaintiffs' cause of action because it “arises
under” federal law, in particular, the PAA, 42 U.S.C.
§§ 2011, et seq. (ECF 1). In the pending
Motion to Remand, Plaintiffs contend that this Court does not
have subject-matter jurisdiction and they reiterate the
allegations of their Complaint regarding the PAA's
inapplicability to this matter. (ECF 21).
and FEDERAL SUBJECT MATTER JURISDICTION
as otherwise expressly provided by Congress, civil actions
for which the district courts of the United State have
original jurisdiction may be removed from state court to
federal district court. 28 U.S.C. §§ 1441(a), 1446.
A party opposing removal may file a motion to remand to state
court. 28 U.S.C. § 1447(c). The party removing and
opposing remand has the burden of establishing federal
subject matter jurisdiction. Iowa Lamb Corp. v. Kalene
Indus., Inc., 871 F.3d 1149, 1154 (8th Cir. 1994);
In re Business Men's Assur. Co. of America, 992
F.2d 181, 183 (8th Cir. 1983) (per curiam). Upon considering
a motion to remand, a district court is “required to
resolve all doubts about federal jurisdiction in favor of
remand.” Business Men's Assurance, 992
F.2d at 183 (citing Steel Valley Auth. v. Union Switch
& Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)).
presence or absence of federal-question jurisdiction is
governed by the ‘well-pleaded complaint rule, '
which provides that federal jurisdiction exists only when a
federal question is presented on the face of the
plaintiff's properly pleaded complaint.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987) (quoting Gully v. First Nat'l Bank, 299
U.S. 109, 112-113 (1936)). See also Gaming Corp. of
America v. Dorsey & Whitney, 88 F.3d 536, 542 (8th
Cir. 1996) (“The ‘well-pleaded complaint
rule' requires that a federal cause of action must be
stated on the face of the complaint before the defendant may
remove the action based on federal question
jurisdiction.”) (quoting Caterpillar, 482 U.S.
at 392). Because federal law provides that plaintiffs are the
“masters” of their claims, plaintiffs “may
avoid federal jurisdiction by exclusive reliance on state
law.” Caterpillar, 482 U.S. at 392.
situations where a cause of action based on a federal statute
does not appear on the face of the complaint, preemption
based on a federal statutory scheme may apply in
circumstances where “the pre-emptive force of a statute
is so extraordinary that it converts an ordinary state
common-law complaint into one stating a federal claim.”
Caterpillar, 482 U.S. at 393 (internal quotation and
citation omitted). See, e.g., Metro. Life Ins.
Co. v. Taylor, 481 U.S. 58 (1987) (where a former
employee alleged breach of contract, retaliatory discharge,
and wrongful termination of disability benefits in state
court complaint, the court held that the former
employee's claims were preempted by the Employee
Retirement and Income Security Act (ERISA); plaintiff's
claims were necessarily federal in character; and, therefore,
removal under 28 U.S.C. § 1441(a) was proper).
“Where a complaint raises issues to which federal law
applies with complete preemptive force, the [c]ourt must look
beyond the face of the complaint in determining whether
remand is proper.” Green v. Arizona Cardinals
Football Club, LLC, 21 F.Supp.3d 1020, 1025 (E.D. Mo.
2014). As further explained by the Eighth Circuit, the
exception to the well-pleaded complaint rule applies where a
federal statute provides “an exclusive cause of action
for the claim asserted and also set[s] forth procedures and
remedies governing that cause of action.” Johnson
v. MFA Petroleum Co., 701 F.3d 243, 248 (8th Cir. 2012).
Thus, although a plaintiff has only filed state law claims, a
court may conclude that the plaintiff has “simply
brought a mislabeled federal claim, which may be asserted
under some federal statute.” Johnson, 701 F.3d
at 247 (internal quotation marks and citation omitted).
Atomic Energy Act of 1954 (AEA), as amended, 42 U.S.C.
§§ 2011-2281, “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 and Elec. Co. v. State
Energy Res. Conservation & Dev. Comm'n, 461 U.S.
190, 206-207 (1983). “[AEA] implemented this policy
decision by providing for licensing of private construction,
ownership, and operation of commercial nuclear power
reactors.” Id. at 207 (citing Duke Power
Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 63
(1978)). In 1957, after it “‘became apparent that
profits from the private exploitation of atomic energy were
uncertain and the accompanying risks substantial,
'” Congress amended the AEA with the PAA, 42 U.S.C.
§ 2011, et seq., “which provided certain
federal licensees with a system of private insurance,
Government indemnification, and limited liability for claims
of ‘public liability.'”El Paso
Natural Gas. Co. v. Neztsosie, 526 U.S. 473, 476 (1999)
(quoting Duke Power, 438 U.S. at 63 and 42 U.S.C.
had three “central elements.” The first element
was to “set a ceiling on the aggregate liability which
could be imposed upon those engaged in the use and handling
of radioactive material either through a contract with the
Federal Government or under a license issued by the Federal
Government for the private development of such
activities.” In re TMI Litigation Cases Consol.
II (TMI II), 940 F.2d 832, 852 (3rd
Cir. 1991). The second element channeled liability in that
“any entity exposed to potential liability for activity
resulting in a nuclear incident, even if it were not a direct
participant in the activity, was entitled to
indemnification.” Id. (internal quotation
marks and citation omitted). Finally, the PAA provided that
“all public liability claims above the amount of
required private insurance protection would be indemnified by
the Federal Government, up to the aggregate limit on
liability.” Id. (internal quotation marks and
“mandated that an assured ‘pool' of available
funds be established to cover certain liabilities which might
arise out of activities related to licenses.”
Gilberg v. Stepan Co., 24 F.Supp.2d 325, 333 (D.
N.J. 1998), disagreed with on other grounds,
Estate of Ware v. Hosp. of the Univ. of Penn, 871
F.3d 273 (3rd Cir. 2017). A licensee “was
required as a condition of its license to maintain
‘financial protection, ' consisting of either
‘private insurance, private contractual indemnities,
self insurance, [or] other proof of financial
responsibility.'” Gilberg, 24 F.Supp.2d at
333. (quoting 42 U.S.C. §§
2210(a) & (b)). The AEC itself “was required to
enter into an indemnification agreement with any licensee who
was required by license to maintain financial
protection.” Id. (citing 42 U.S.C. §
other things, as relevant, the PAA was amended in 1988 to
“alter the breadth of the compensation system to cover
activity related to disposal of nuclear waste, ” to
“create a federal cause of action, ” and to
“channel liability to licensees.” TMI
II, 940 F.2d at 853-54. The amendments to the PAA also
provided “for removal of, and original federal
jurisdiction over, claims arising from a ‘nuclear
incident, '” as discussed further below.
Id. at 853.
to the 1988 amendments, “public liability action”
is defined by the PAA, 42 U.S.C. § 2014(hh), as follows:
The term “public liability action, ” as used in
section 2210 of this title, means any suit asserting public
liability. A public liability action shall be deemed to be an
action arising under section 2210 of this title, and the
substantive rules for decision in such action shall be
derived from the law of the State in which the nuclear
incident involved occurs, unless such law is
inconsistent with the provisions of such section.
definition of public liability action “had the effect
of creating a federal cause of action under the [PAA] for
public liability claims arising out of a nuclear
incident.” Gilberg, 24 F.Supp.2d at 339
(citing TMI II, 940 F.2d at 857). Thus, a
“public liability action” requires a
“nuclear incident.” TMI II, 940 F.2d at
relevant, “public liability” is defined by the
PAA, 42 U.S.C. § 2014(w), as:
any legal liability arising out of or resulting from a
nuclear incident . . . except . . . (iii) whenever used in
subsections (a), (c), and (k) of section 2210 of this title,
claims for loss of, or damages to, or loss of use of property
which is located at the site of and used in connection with
the licensed activity where the nuclear incident occurs.
“Public liability” also includes damage to
property of persons indemnified: Provided, That such
property is covered under the terms of the financial
protection required, except property which is located at the
site of an used in connection with the activity where the
nuclear incident occurs.
incident, ” is defined, in relevant part, by the PAA,
42 U.S.C. § 2014(q), as:
any occurrence, including an extraordinary nuclear
occurrence, within the United States causing, within or
outside the United States, bodily injury, sickness, disease,
or death, or loss of or damage to property, or loss of use of
property, arising out of or resulting from the
radioactive, toxic, explosive or other hazardous properties
of source, special nuclear, or byproduct
material. . . . And provided further, That as the term
is used in section 2210(c) of this title, it shall include
any such occurrence outside both the United States and any
other nation if such occurrence arises out of or results from
the radioactive, toxic, explosive, or other hazardous
properties of source, special nuclear, or byproduct material
licensed pursuant to subchapters V, VI, VII, and IX of this
division, which is used in connection with the operation of a
licensed stationary production or utilization facility or
which moves outside the territorial limits of the United
States in transit from one person licensed by the Nuclear
Regulatory Commission to another person licensed by the
Nuclear Regulatory Commission.
nuclear occurrence” is defined by the PAA, 42 U.S.C.