# Amicus Curiae Brief — English v. General Elec. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0851%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 496 U.S. 72 ## Text IN THE LERM JOSEPH F. SPANIOL, JR Supreme Court of the United States OCTOBER TERM, 1989 VERA M. ENGLISH, a: Petitioner, GENERAL ELECTRIC COMPANY, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit BRIEF OF THE NUCLEAR MANAGEMENT AND RESOURCES COUNCIL, INC. AS AMICUS CURIAE SUPPORTING RESPONDENT WILSON - Epes PrintinGc Co., Inc. NICHOLAS S. REYNOLDs * RICHARD K. WALKER DONN C. MEINDERTSMA BISHOP, CooK, PURCELL & REYNOLDS 1400 L Street, N.W. Washington, D.C. 20005-3502 (202) 371-5700 Counsel for Amicus Curiae Nuclear Management and Resources Council, Inc. * Counsel of Record - 789-0096 - WASHINGTON, 0.C. 20001 BEST AVAILABLE COPY QUESTION PRESENTED Whether Section 210 of the Energy Reorganization Act, which provides a comprehensive federal administra- tive remedy for employees at nuclear facilities as an in- tegral part of the federal government’s program to en- sure safety in the opera‘ions of those facilities, preempts state law claims for intentional infliction of emotional distress arising out of alleged discrii.ination in the terms and conditions of employment in retaliation for reporting a safety violation at a nuclear facility that is fully compensable under Section 210. (i) TABLE OF CONTENTS TABLE OF AUTHORITIES ................0..000.000000000.0.2..... INTEREST OF THE AMICUS CURIAE ......00000000...... STATEMENT OF THE CASE ...WW000220.20...eeee eee SUMMARY OF ARGUMENT ......W0 a ilticcennasecsencetnscsnneseecsssesencersessscences I. CONGRESS INTENDED SECTION 210 OF Il. THE ENERGY REORGANIZATION ACT TO BE THE EXC! USIVE REMEDY FOR EM- PLOYEES IN THE NUCLEAR INDUSTRY WHO CLAIM THAT THEY HAVE BEEN DIS- CRIMINATED AGAINST FOR RAISING NU- CLEAR SAFETY CONCERNS A. Section 210 Must Be Read In Pari Materia With Other Provisions Of The Comprehen- sive Federal Regulatory Regime Governing The Nuclear Industry, And When So Read It Provides An Exclusive Federal Remedy For Allegedly Retaliatory Acts Motivated By An Employee’s Raising Nuclear Safety Neen ccncnenemnnenonse B. This Court’s Decisions In Pacific Gas & Elec- tric Co. And Silkwood v. Kerr-McGee Corp. Compel The Conclusion That The States Have No Authority To Regulate Conduct Such As That Alleged In Petitioner’s EES PETITIONER’S CLAIMS ARE PREEMPTED FOR THE FURTHER REASON THAT THE APPLICATION OF STATE LAW TO HER ALLEGATIONS OF RETALIATION WOULD STAND AS AN OBSTACLE TO, AND FRUS- TRATE, FULL REALIZATION OF THE OBJECTIVES OF FEDERAL LAW GOVERN- ING THE REGULATION OF NUCLEAR cs diiaiacesertesnnseenccecenessensetecesene 12 iv TABLE OF CONTENTS—Continued Page III. THE DECISIONS OF THE COURTS BELOW ARE CONSISTENT WITH THE PREEMP- TION PRINCIPLES ARTICULATED BY THIS COURT IN CASES ARISING UNDER THE LABOR MANAGEMENT RELATIONS Vv TABLE OF AUTHORITIES Cases: Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) Sa Rime: Eon eer ae Amalgamated Ass’n of Motor Coach Emp’ yees v. Lockridge, 408 U.S. 274 (1971) ..............0.00000..... Atkinson v. Gates, McDonald & Co., 838 F.2d 808 I UN, tears Belknap v. Hale, 463 U.S. 491 (1983) ........ ae tee Binkley v. Loughran, 714 F. Supp. 768 (M.D.N.C. 1988) ......... 5a cable beh tntaeeglalaiemedagiisdiciiien Brown & Root, Inc. v. Donovan, 747 F.2d 1029 I SS Daa ae Brown v. General Servs. Admin., 425 U.S. 820 I accs ris. soninctice staan cdeasiniacanedaaihaiiad a aa iadaaeadiidien Commonwealth Edison Co. v. Pollution Control Bd., 5 Ill. App. 3d 800, 284 N.E.2d 342 (1972)... Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 NES INEESSTENTDURERON VERON > RE RO NOCR WS DeFord v. Secretary of Labor, 700 F.2d 281 (6th ERECT RRne useage we cere ners my ceo Ae Aro eS Oe Edgar v. MITE Corp., 457 U.S. 624 (1982) aes Erlenbaugh v. United States, 409 U.S. 239 (1972)... Farmer v. United Bhd. of Carpenters, 480 U.S. Be IE sieretiecresiceintes sncetaicennntomianneone 25, 26, 27, Great American Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366 (1979) ...................000000.2.. Haig v. Agee, 453 U.S. 280 (1981) -.........--00202... Hines v. Davidowitz, 312 U.S. 52 (1941)... International Ass’n of Machinists v. Gonzales, 356 Se a isieeelotceaeae International Paper Co. v. Oulette, 479 U.S. 481 BRE REESE earn one nceenmanrer nee Eee Inter: *tional Union, United Auto. Workers v. Russell, 356 U.S. 634 (1958) _................0-.22-22-2..- Jackson v. Southern Cal. Gas Co., 881 F.2d 638 RIPE oe arses «Cae See Kansas Gus & Elec. Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986) ........... ccinidanahseiiijusneaacetinalandicinesdiaiiameidiaidmmeld Page 20 10 28, 29 vi TABLE OF AUTHORITIES—Continued Page Lehman v. Morrissey, 779 F.2d 526 (9th Cir. IPE IR ae te oe Or 29 Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. i i ita ileal 27, 28 Linn v. United Plant Guard Workers of America, Local 114, 388 U.S. 58 (1966) .............................. 26, 27 Masters v. Daniel Int’l Corp., 895 F.2d 1295 (10th LIRR SR RR Rts Pe on Te PR 19 Mayon v. Southern Pac. Transp. Co., 805 F.2d ee ee ee 29 Norman v. Niagara Mohawk Power Corp., 873 i ft | 5 Eee eceemnne nanan 25, 29 Northern Natural Gas Co. v. State Corp. Comm’n, I I aie 17 Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff'd mem., 405 U.S. 10%5 ERECT SRE eC eT Tie, ane aE 10 Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190 (1968) .......... siecle int sii ta eal tall 4, 7, 8, 12, 13, 16, 17 Pane v. RCA Corp., 868 F.2d 631 (3d Cir. 1989) .... 29 Perez v. Campbell, 402 U.S. 687 (1971) -....0........... 17 Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495 (1988) ................ 22 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 San Diego Bldg. Trades Council v. Garmon, 359 US. 336 (1008) ...................... 23, 24, 25, 27, 28, 29, 30 Schneidewind v. ANR Pipeline Co., 485 U.S. 293 REE ena ne oN Be A Ute siaiieiaes 17, 22 Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpentcrs, 436 U.S. 180 (1978) _....... 23 Silkwood v. Kerr-McGee Corp., 464 U.S. 238 aa acieaall 4, 13, 14, 15, 16 Smith v. Wade, 461 U.S. 30 (1983) —.......000000-...... 21 State of N.J., Department of Envtl. Protection v. Jersey Cent. Power & Light Co., 60 N.J. 102, 351 Sa ts dcitdaieiatetnpdbnlinions 10 United Constr. Workers v. Laburnum Constr. Co., 347 U.S. 656 (1954) -............00....... pone a 26, 27 vii TABLE OF AUTHORITIES—Continued Page Vaca v. Sipes, 386 U.S. 171 (1967) .......0..0.. 26 Wisconsin Dep’t of Indus. v. Gould, Inc., 475 US. ERTL a AN Se Ue ANNE RES SO OO IO CR 21 Administrative Decisions: DeFord v. Tennessee Valley Auth., Case No. 81- ERA-1 (Secretary’s Order on Remand) (Apr. aE eee eet vee Ors ee a ND 27 In re General Elec. Co. (Wilmington, NC Facil- ity), DD-89-1, 29 N.R.C. 325 (1989) —......000000..... 21 In re Tennessee Valley Auth., EA 86-093 (July 10, a a a ie aed Be ia oa 21 In re Toledo Edison Co., EA 88-234 (Nov. 21, te ASE aS Ire Ne RT rE 21 Statutes and Reguiations: Atomic Energy Act of 1946, ch. 724, 60 Stat. 755 a eee nce n een ne Ie ONDE 7 eS 7 Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 RR e seticlaeeciieris iaribhatiiasincesatsinctniiciensadstiencenitdeninmneinmnegn 6 ON I OF i oencceniecesoeccessseceensiemmen eels 8 ..cssnmmenemuuennbinens 19 § 234, 42 U.S.C. § 2282 ..... a 21 pe eee 7,16 fk Ee een 7,8,11 § 274(b) (4), 42 U.S.C. § 2021 (b) (4) 0. 8 § 274(c), 42 U.S.C. § 2021 (c) -.000-o oe. 8 § 274(c) (1), 42 U.S.C. § 2021 (c) (1) 0... 9 § 274(k), 42 U.S.C. § 2021(k) ................ alee 8 Energy Reorganization Act of 1974, 42 U.S.C. I saneaniiciasaaanne 6,9 Rs Oe TI ccc ec erececeacecsceesrnvesed passim § 210(b) (1), 42 U.S.C. § 5851 (b) (1) 18 § 210(b) (2), 42 U.S.C. § 5851 (b) (2) 0... 18 § 210(b) (2) (B), 42 U.S.C. § 5851 (b) (2) (B).. 27 § 210(g), 42 U.S.C. § 5851 (g) . Pa Opens 5, 21, 22, 23 Labor Management Relations Act of 1947, 29 | EE: 8 ee 27, 28 viii TABLE OF AUTHORITIES—Continued Page National Labor Relations Act of 1935 —................. 23 §§ 7, 8, 29 U.S.C. §§ 157, 158 ........... ee. 24 10 C.F.R. Part 2, App. C (1989) -............222-..-.-ee 21 pk 8 EF eee 3 10 C.F.R. § 19.16(c) (superseded) ...........--...-------... 24 te I i cccccnctsnsincnmssecnnsstensnnbacnceis 19 Re ee I onc ccctcccccnccecncencensretesinenesnssancncecs 19 i catieenitneeemanannnonneise 19 a icc ccsccseicccancccscocccccsnccsowccsansnsonse 19 Se . saceteisedeneiedsinmnsionenienis 19 a te I Oe ID cc snccinccccccacccccnstcnccccssecenasoos 8 Te IE CI ciiciccccncitcccvninciesinncnconnccsncconsscss 19, 21, 24 Fr Ts cecesecndmnnnensebianionnaintn 19 Miscellaneous: te me RS ES een eE 9, 25 124 Cong. Rec. 29785-87 (1978) -..... po SDR NCS ADEE on ONE 11 124 Cong. Rec. 37545, 38230 (1978) .. 2... 11 124 Cong. Rec. 38239, 37526 (1978) ............--.. 11 38 Fed. Reg. 22217 (1973) ....................... wt inet 24 47 Fed. Reg. 30452 (1982) ..............2---ceeeceeeeeeeeeeeeeee eee 24 Easterbrook, Statutes’ Domain, 39 U. Chi. L. Rev. SET SS Oe EE ee 20 H.R. 13650, 95th Cong., 2d Sess. (1978) —.............. 11 H.R. Rep. No. 1796, 95th Cong., 2d Sess. (1978), reprinted in 1978 U.S. Code Cong. & Admin. AE ACR Mi se EE UL con OE eR 11 Memorandum of Understanding Between NRC and Department of Labor; Employee Protection, 47 Fed. Reg. 54585 (1982) .........0.00.02..20222- ee. 18, 19 S. 2584, 95th Cong., 2d Sess. (1978) —................... 11 IN THE Supreme Court of the United States OCTOBER TERM, 1989 No. 89-152 VERA M. ENGLISH, Petitioner, V. GENERAL ELECTRIC COMPANY, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit BRIEF OF THE NUCLEAR MANAGEMENT AND RESOURCES COUNCIL, INC. AS AMICUS CURIAE SUPPORTING RESPONDENT INTEREST OF THE AMICUS CURIAE The Nuclear Management and Resources Council, Ince. (“NUMARC”), is the organization of the nuclear power industry that is responsible for coordinating the com- bined efforts of all utilities licensed by the United States Nuclear Regulatory Commission (“NRC” or “Commis- sion’) to construct or operate nuclear power plants, and of other nuclear industry organizations, in all matters involving generic operational and technical issues affect- ing the industry. Every electric utility responsible for constructing or operating a commercial nuclear power plant in the United States is a member of NUMARC. In addition, NUMARC’s members include major architect-engineering firms and all of the major nuclear 2 steam supply system vendors, including respondent Uen- erai Electric Company. Every member represented by NUMARC that is en- gaged in NRC-licensed activities is subject to the stric- tures o1 the nuclear regulatory scheme created by the Atomic Energy Act of 1954, as amended, including Sec- tion 210 of the Energy Reorganization Act, 42 U.S.C. § 5851 (“Section 210’), and to the regulatory oversight f the NRC (formerly the Atomic Energy Commission). NUMARC has an abiding interest in ensuring that the congressionally crafted regulatory scheme governing its members’ operations is construed and applied in a man- ner consistent with the congressional goal of ensuring that nuclear facilities are constructed and operated in such a manner as to protect the health and safety of the public. NUMARC believes that petitioner’s claims are pre- empted by federal law and were thus correctly dismissed by the courts below. Further, it is NUMARC’s view that the national objectives established by Congress in the Atomic Energy Act and administered by the NRC, in- cluding emphasis on early identification and remediation of potential nuclear safety problems at nuclear facilities, would be substantially impeded if employers in the in- dustry were also subject to the vicissitudes of varying state law conceptions of what does, and does not, advance those policies.’ STATEMENT OF T.iE CASE NUMARC adopts the Statement of the Case set forth in respondent General Electric Co.’s (“GE”) brief. Nevertheless, we respectfully invite the Court’s attention to the following re:ord facts. 1 Pursuant to Rule 37 of the Rules of this Court, NUMARC has filed with the Clerk the parties’ written consent to the submission of this Brief 3 Having first sought remedies for alleged maltreatment at .he hands of her employer before the Department of Labor under Section 210 of the Energy Reorganization Act, 42 U.S.C. § 5851 (Pet. App. 30a-56a), and before the NRC under 10 C.F.R. § 2.206 (Pet. App. 57a-58a), petitioner Vera M. English brought this diversity action in district court in 1987. Claiming that she had been wrongfuily terminated and that respondent had inten- tionaliy caused her emotional distress, petitioner sought compensatory damages of “at least’? some $1.3 million (J.A. 21) and punitive damages of approximately $2.3 billion (Pet. App. 6a). Specifically with regard to her emoticnal distress claim, petitioner allege’ that “GE in- tentionally inflicted emotional distress on |her] as ‘pun- ishment’ for her reporting violations to the NRC and to make an example of her.” J.A. 20. She also alleged that her employer’s actions constituted “extreme and outrage- ous conduct.” Jd. The district court summarized the particular conduct on which petitioner’s claims nad been based as follows: With respect to “extreme and outrageous” conduct plaintiff alleges that GE’s management (1) re moved her from her job in the Chemet Lab under guard as if she were a criminal, exposing her to contempt and ridicule; (2) assigned her to a de- grading “make work” job; (3) derided her as para- noid; (4) barred her from employment in controlled areas; (5) subjected her to constant surveillance in the workplace; (6) isolated her from fellow workers and did not even permit her to eat in the company lunchroom with her fellow workers; and (7) conspired +o fraudulently charge her with vicla- tions of safety and criminal statutes. Pet. App. 27a. The district court held that petitioner’s claims fell squarely within the scope of Section 210, which consti- tuted her exclusive remedy. Petitioner appealed the rul- ing on her emotional distress claim, and the Fourth Cir- 4 cuit agreed with the lower court that Section 210 pre- empted that claim. Petitioner obtained a writ of cer- tiorari from this Court. SUMMARY OF ARGUMENT I. In the federal legislation governing the nuclear indus- try enacted over the past four decades, Congress has completely occupied the field of nuclear safety regulation. Only rarely has it provided for a role hy the states, and then only in narre-vly limited circumstances. Section 210 was enacted as a part of the intricate and compre- hensive federal scheme for ensuring the safe construction and operation of nuclear facilities. Its employee protec- tion features are a means to that end, not an end in themselves. Section 210 therefore must be read in pari materia with the statutory scheme already in place when it was enacted. Such a reading compels the con- clusion that, if Congress had intended to permit the states to provide an alternative and duplicative system of remedies for retaliation claims that fall within the ambit of Section 210, it surely would have said so. This Court’s decisions in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Developmert Comm’n, 461 U.S. 190 (1983), and Silkwood v. Ker: - McGee Corp., 464 U.f. 238 (1984), recognize the com- plete occupation of this field by Congress. Those deci- sions also affirm that, absent an express provision au- thorizing the states to act in this area or clear and abun- dant evidence of a congressional intent to permit them to do so, state law is precluded from any role. Neither of these factors exists with respect to claims, such as petitioner’s, that are cognizable under Section 210. There thus is no basis for finding that petitioner’s claims are within any of the limited exceptions to the broad preemptive sweep of federal nuclear energy law. 5 II. Even had Congress not occupied the field of nuclear safety regulation, petitioner’s claims would be preempted for a further reason: application of state law to facts such as those alleged in her complaint would interfere with full realization of the purposes embodied in the federal regulatory scheme. The much longer statute of limitations applicable to petitioner’s state law claim sub- verts the provisions in federal law calculated to ensure that information about potential nuclear safety issues comes to the attention of federal authorities in timely fashion. Further, state law apparently would permit awards of punitive damages irrespective of an NRC decision to impose, or not to impose, civil penalties pro- vided for in the federal regulatory scheme. aAnd state law contains no provision comparable to Section 210(g), which would preclude those who violate federal nuclear safety requirements from obtaining a remedy. These differences inevitably give rise to the potential for state law interference with the fulfillment of federal objectives. III. The decisions below are also entirely consistent with this Court’s preemption decisions under the Labor Man- agement Relations Act, 29 U.S.C. §§ 141-187 (“LMRA”). The Court has held that state laws regulating conduct arguably prohibited by the LMRA are preempted because Congress has committec the resolution of such matters to the National Labor Re:ations Board (“NLRB”), just as Congress has designated the Secretary of Labor and the NRC as the federal agencies with authority to address retaliation claims brought by nuclear industry employees. Cases cited by petitioner in which the LMRA has been held not to preempt state claims have been grounded in the fact that the NLRB is generally powerless to provide any remedy for personal injuries of the sort ‘hat state law may address. Section 210, on the other hand, sun- plies a remedy for retaliation claims such as petitioner’s. 6 Because petitioner’s claim here is essentially the same claim that she litigated before the Secretary of Labor under Section 210, it clearly does not involve a collateral matter only peripherally related to the subjects of inter- est in Section 210 proceedings. Furthermore, federal oc- cupation of the field of nuclear safety regulation leaves no room for a balancing of competing state and federal interests in the issues raised in the petitioner’s complaint. ARGUMENT I. CONGRESS INTENDED SECTION 210 JF THE ENERGY REORGANIZATION ACT TO BE THE EXCLUSIVE REMEDY FOR EMPLOYEES IN THE NUCLEAR INDUSTRY WHO CLAIM THAT THEY HAVE BEEN DISCRIMINATED AGAINST FOR RAISING NUCLEAR SAFETY CONCERNS. A. Section 210 Must Be Read In Pari Materia With Other Provisions Of The Comprehensive Fedcral Regulatory Regime Governing The Nuclear Indus- try, And When So Read It Provides An Exclusive Federal Remedy For Allegedly Retaliatory Acts Motivated By An Employee’s Raising Nuclear Safety Concerns. In 1978, Congress amended the Energy Reorganization Act cf 1974 by adding a new Section 210, Pub. L. No. 95-601, 92 Stat. 2951 (1978), 42 U.S.C. § 5851. This provision, applicable only to the nuclear industry, pro- vides specific administrative procedures and full com- pensatory remedies to employees of NRC licensees and their contractors who allege that they have been dis- criminated against for engeging in any “action to carry out the purposes” of the Energy Reorganization Act or the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seg. Far from legislating in a regulatory vacuum, as peti- tioner implies was the case, Congress added this new safety provision—Section 210—to what is likely the most comprehensive federal regulatory scheme ever enacted. From the beginning, that scheme completely excluded state regulation and subsequently has permitted limited 7 regulation by the states only by express decree. When placed in its proper context, there is ample evidence that Congress intended Section 210 to be the exclusive remedy for employees in the nuclear industry who allege that they have been retaliated against for raising radiological safety concerns. This Court has recounted the history of the regulation of the nuclear industry before. Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 206-12 (1983). In brief, Con- gress’ first legislation in this area created a federal gov- ernment monopoly over the production and use of fission- able material. Atomic Energy Act of 1946, ch. 724, 60 Stat. 755 (1946). In the Atomic Energy Act of 1954, Congress implemented its determination that the private sector should participat2 in the development of atomic energy for power production purposes, but only under the exclusive regulatory oversight of a federal agency. The 1954 Act thus created the Atomic Energy Commission (“AEC”), which was charged with the licensing of pri- vate construction, ownership, and operation of commercial power reactors and which retained exclusive jurisdiction to license the acquisition, transfer, possession, and use of nuclear materials. ‘Upon these subjec-s, no role was left for the States.” Pacific Gas & Electric Co., 461 U.S. at 207. When Congress permitted states to regulate at all in this area, it did sb expressly. Congress even found it necessary to provide expressly that the 1954 Act reserved to the states their traditional power to regulate the “gen- eration, sale, or transmission of electric power produced through the use of nuclear facilities ....” Section 271, 42 U.S.C. $2018. As the Court indicated in Pacific Gas & Electric Co., there are very few instances in the stat- utes governing the nuclear industry in which Congress has relinquished power to the states. In 1959, Congress added another such provision, Sec- tion 274, 42 U.S.C. § 2021. The 1959 amendment granted 8 the AEC the authority “by agreements with state gover- nors to discontinue [the Commission’s] regulatory author- ity over certain nuclear materials under limited condi- tions.” Pacific Gas & Electric Co., 461 US. at 209. Under such agreements, the NRC cedes its authority to “Agreement States,” and consequently there is no “dual regulation” in such states. Thus, the 1959 amendment permitted state regulation of nuclear materials to a very limited extent and only where the state has entered into an explicit agreement with the federal government and restricted amounts of nuclear materials are involved. In the 1959 amendment Congress again included an express provision to make clear its intent with respect to the effect of Section 274 on pre-existing AEC and state regulatory authority.” Section 274(b) (4) and (c) make clear that the AEC retained its authority over large quantities of special nuclear material and with respect to the construc- tion and operation of any production or utilization facil- ity. 42 U.S.C. § 2021(b) (4), (e).® 2In Section 274(k), 42 U.S.C. § 2021(k), Congress declared that Section 274’s narrowly circumscribed provisions for the exercise of state authority should not be construed as implying any further restrictions on the states. Petitioner suggests that Section 274(k) creates an exemption from the generally preemptive effect of the Atomic Energy Act for all forms of state regulation of nuclear facilities for economic and other nonsafety purposes. Pet. Br. at 21-22. But this contention ignores this Court’s pronouncement in Pacific Gas & Electric Co. that “Seciion 274(k), by itself, limits only the pre-emptive effect of ‘this section,’ that is, § 274, and does not represent an affirmative grant ef power to the States.’ 461 U.S. at 210 (emphasis added). 3 Petitioner was employed at a GE fuel fabrication plant licensed by the NRC to possess and use special nuclear material pursuant to Section 53 of the Act (42 U.S.C. § 2073) and 10 C.F.R. Part 70 of NRC regulations. Because GE is authorized to possess large quantities of special nuclear material at the plant, much more than that contemplated in Section 274(b)(4) of the Act (42 U.S.C. § 2021(b)(4)), such a plant is subject only to NRC regulation, not “Agreement State” regulation. Thus, for purposes of preemption analysis, the GE plant is akin to the utilization facilities (i.e., nuclear reactors) that are similarly subject only to NRC regulation 9 In the Energy Reorganization Act of 1974, Congress restructured fedural control over the nuclear industry. The Act abolished the AEC and assigned its licensing and regulatory functions to the NRC. The 1974 Act did not alter in any way the role the states were to play in the regulation of nuclear power. Finally, in 1978, Con- gress amended the Energy Reorganization Act by adding Section 210. Again, the new legislation provided no new authority to the states. On the contrary, the legislative aistory of Section 210 establishes that Congress intended the provision as an addition to legislation governing nuclear safety, and one that was to be meshed with the existing body of law. Finally, while new section 210 of the Energy Reorganization Act of 1978 provides the Department of Labor with new authority to investigate an al- leged act of discrimination in this context and to afford a remedy should the allegation prove true, it is not intended to in any way abridge the |Nu- clear Regulatory] Commission’s current authority to investigate an alleged discrimination and take ap- propriate action against a licensee-employer, such as a civil penalty, license suspensiv:: or license revoca- tion. Further, the pendency of a proceeding before the Department of Labor pursuant to new section 210 need not delay any action by the Commission to carry out the purposes of the Atomic Energy Act of 1954. 124 Cong. Rec. 29771 (1978) (statement of Sen. Hart). In similar circumstances, this Court has ccnsistently held that amending legislation such as Section 210 must be read in pari materia with the previously enacted tegis- lative scheme of which it is made a part.‘ This rule, the (Section 274(c)(1) of the Act, 42 U.S.C. § 2021(c)(1)) and that are referred to in such cases as Pacific Gas and Electric Co. 4 See Naig v. Agee, 453 U.S. 280, 300-01 (1981) (statute enacted 52 years after passage of the Passport Act and making it unlawful to travel abroad without a passport even in peacetime must be read in pari materia with the Passport Act): Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (Fed. R. Civ, P. 54(d) 10 Court has explained, “is but a logical extension of the principle that individual sections of a single statute should be construed together, for it necessarily assumes that whenever Congress passes ¢. new statute, it acts aware of all previous statutes on the same subject.” Erlenbaugh v. United States, 409 U.S. 239, 244 (1972) (citation and footnote omitted). Prior to the passage of Section 210 in 1978, it was generally recognized that Congress had preempted state regulation of matters subject to the federal regulatory scheme. In the leading preemption case of that time, Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff'd mem., 405 U.S. 1035 (1972), the Eighth Circuit had held that Congress had preempted the state’s attempt to regulate radioactive waste releases from nuclear power plants, even though Congress had said nothing about the states’ role in this area and even though compliance with both the federal and state stand- ards was possible. The circuit court found that the 1959 amendment to the Atomic Energy Act itself evidenced a congressional intent to exclude state regulation of the operation of nuclear power facilities, except to the extent that a state had entered into a cooperative agreement with the federal government to regulate certain nuclear materials. (T|he federal government has exclusive authority under the doctrine of pre-emption to regulate the construction and operation of nuclear power plants, which necessarily includes regulation of the levels of radioactive effluents discharged from the plant. /d. at 1154.° must be read in pari materia with previously enacted limitations on the power of courts to tax litigants with the costs of litigation in 28 U.S.C. §§ 1821, 1920). 5 See also State of N.J., Department of Envtl. Protection v. Jersey Cent. Power & Light Co. 60 NJ. 102, 351 A.2d 337 (1976) (state regulation of cessation of nuclear power plant’s func- 1) Because Congress must necessarily have been aware of the body of nuclear energy law already in existence at the time of Section 210’s enactment in 1978, it was surely cognizant of the structure and underlying policies of the Atomic Energy Act onto which Section 210 was engrafted, of the fact that only very narrowly circum- scribed powers had been left to the states, and of the necessity for express provision for state authority in any area in which it was intended that the states be left free to act. When Section 210 is considered in its proper context, there can be no doubt as to its pre- emptive effect over claims such as petitioner’s here. Moreover, in the case of Section 210, it is not neces- sary to rely only upon the usual presumption that Con- gress was aware of the historical practice of making specific provision for any exceptions in the preemptive sweep of federal law governing the nuclear industry. At the very same time that Congress was considering Section 210, it also had before it proposals to amend Section 274.° Thus, the Congress that enacted Section 210 was itself directly involved at the same time with amending one of the few provisions of the Atomic En- uioning, emission of radioactive waste and dilution of that waste is impermissible because regulation of those matters has been vested in the AEC); Commonwealth Edison Co. v. Pollution Control Bd., 5 Ill. App. 3d 800, 284 N.E.2d 342 (1972) (federal law preempts state environmental control statute to the extent it authorized state regulation of radiation from nuclear power plants). ® Indeed, when it passed the Senate, S. 2584, the bill that con- tained what was to become Section 210, also contained provisions (Sections 16-18 of the bill) to amend certain portions of Section 274 having to do with the exercise of state authority with regard to radiological by-product materials (uranium mill tailings). 124 Cong. Rec. 29785-87 (1978). These provisions were dropped from the con- ference bill, however, “in light of other legislation before the Congress to regulate mili tailings.” H.R. Rep. No. 1796, 95th Cong. 2d Sess. 18, reprinted in 1978 U.S. Code Cong. & Admin. News 7304, 7311 (1978) (Conference Report). That other legislation was H.R. 13650, which passed the House and Senate on October 14, 1978. 124 Cong. Rec. 37545, 38230 (1978). Senate Bill 2584 also passed both houses on October 14, 1978. Jd. at 38239, 37526 (1978). 12 ergy Act or the Energy Reorganization Act that ex- pressly cedes limited authority to the states. Under these circumstances, it strains credulity to suggest that at the time of Section 210’s passage there was an un- stated congressional intention to cede authority to the states to provide alternative and duplicative remedies for conduct directly addressed by Section 210. B. This Court’s Decisions In Pacific Gas & Electric Co. And Silkwood v. Kerr-McGee Corp. Compel The Conclusion That The States Have No Authority To Regulate Conduct Such As That Alleged In Peti- tioner’s Complaint. This Court affirmed in Pacific Gas & Electric Co. that “the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states.” Jd. at 212 (footnote omitted). In addition, the Court made it clear that any attempt by a state to regulate “the construction or operation of a nuclear powerplant,” even if motivated solely by “nonsafety concerns,” would be plainly im- permissible because the exercise of such regulatory au- thority would “directly conflict with the [NRC’s] ex- clusive authority” over such matters. /d. Moreover, in language iat is particularly pertinent to resolving the issue in the present case, the Pacific Gas & Electric Co. decision emphasized the profoundly preemptive effect of federal occupation of this field. When the Federal Government completely occupies a given field or an identifiable portion of it, as it has done here, the test of pre-emption is whether “the matter on which the State asserts the right to act is in any way regulated by the Federal Act.” Id. at 212-13 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 236 (1947) (emphasis added) ). The language of petitioner’s complaint in this case reveals .1at she has sought to bring a claim under state law that embraces matters squarely addressed by Sec- tion 210. The complaint’s description of the “extreme and outrageous conduct” alleged asserts that such 13 conduct was “motivated by GE’s desire to punish her for raising safety concerns” (J.A. 16, 20), that her employer was motivated by a desire to demonstrate that it would “severely punish employees who insisted on compiiance with safety regulations and reported GE violations to the NRC as required by law” (J.A. 16), and that the treatment to which she allegedly had been subjected had all occurred “because she had exposed and threatened to continue to expose as sham, management’s pretended concern with employee and public health and safety” at the facility where she had been employed (J.A. 16-17). At bottom, then, her cause of action for intentional infliction of emotionai distress consists of nothing more or less than claims that her employer retaliated against her because of her involvement in raising nuclear safety concerns, precisely the sort of conduct that Section 210 was intended to regulate. Thus, “ ‘the matter on which the State asserts the right to act,’” Pacific Gas & Elec- tric Co., 461 U.S. at 213—here the actic’ « a nuclear industry employer in allegedly retaliating against one of its employees for raising concerns about nuclear safety —is directly the subject of federal regulation. Inasmuch as this is not one of the strictly circumscribed areas in which Congress has expressly preserved the traditional regulatory authority of the states, the application of North Carolina law to the facts alleged by petitioner is perforce preempted. The Court’s decision in Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), rejnforces the conclusion that peti- tioner’s claim is preempted because it intrudes upon a field fully occupied by the federal government. The ma- jority in that case held that state tort law remedies for personal injuries resulting from physical exposure to radiation are not preempted by federal law. In so holding, the Court also made clear that it was recog- nizing only a limited exception to the general rule enun- ciated in Pacific Gas & Electric Co. that all matters 14 concerning nuclear safety and the operation of nuclear facilities are the exclusive province of the federal regu- latory regime. The majority in Silkwood first noted that the decision of Congress to prohibit the states from intruding on the safety aspects of nuclear development had derived from a belief that the NRC was more qualified than the states to determine the appropriate safety standards to be em- ployed at nuclear facilities. 464 U.S. at 250. If there were nothing more, this concern over the States’ inability to formulate effective standards and the foreclosure of the States from conditioning the operation of nuclear plants on compliance with state-imposed safety standards arguably would dis- allow resort to state-law remedies by those suffering injuries . .m radiation in a nuclear plant. There is, howeve: ample evidence that Congress had no intention of © »bidding the States to provide such remedies. Id. at 250-51. The evidence to which the majority opinion referred consisted of two critical facts. First, Congress had pro- vided no federal remedy for the victims of svch in- juries. Jd. Second, and “|m|ore importantly, the only congressional discussion concerning the relationship be- tween the Atomic Energy Act and state tort remedies indicates that Congress assumed that such remedies would be available.” Jd.’ But neither of these factors is present in cases involv- ing the application of state law to alleged acts of retalia- tion for raising nuclear safety concerns. In Section 210, Congress has provided an explicit and detailed federal administrative remedy for those who suffer retaliation under circumstances such as those alleged by petitioner here. 7 The Court also noted that in congressional deliberations on the 1966 amendments to the Price-Anderson Act, a provision that would have created a federal tort to replace existing state remedies had been expressly considered and rejected. Id. at 254-55. 15 Moreover, neither petitioner nor her supportin ict have pointed the Court to any evidence ‘that Aca has at any time assumed that state tort remedies would be available in cases in which retaliation for raising nuclear safety concerns is alleged. Quite simply, there is no indication whatsoever in the legislative history of Section 210 or any of the other provisions of the Atomic Energy Act or the Energy Reorganization Act suggest- ing that Congress even considered, let alone chose to tolerate, the availability of state remedies in such cases. The majority opinion in Silkwood frankly acknowl- edged that “there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability.” Jd at 256. The Court also made clear that tolerance of that tension was possible only because the evidence of a con- gressional intent to allow it to exist was abundant. but then emphasized that applicability of its ruling to claims in other areas was not to be presumed: We do not suggest that there could never be an instance in which the federai law would pre-empt the recovery of damages based on state law. But insofar as damages for radiation injuries are con- cerned, pre-emption should not be judged on the basis that the Federal Government has so completely occupied the field of safety that state remedies are foreclosed but on whether there is an irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would frustrate the objectives of the federal law. Id. (emphasis added). Absent the compelling evidence of congressional intent that supplied the foundation for the narrow exception. recognized by the majority in Silkwood for radiation injury claims, the fact that Congress has completely oceupied the field of nuclear safety compels the conclusion that state law remedies are preempted. 16 Petitioner seeks to avoid this straightforward applica- tion of the Pacific Gas & Electric Co. and Silkwood deci- sions by asserting that the interests of the states in granting their citizens the right to litigate intentional infliction of emotional distress claims have “nothing whatsoever to do with nuclear energy or nuclear power.” Pet. Br. at 14. But if that were the test, the entirety of the Court’s discussion of congressional intent in Si/k- wood would have been nothing more than surplusage, for it can just as wel! he sa‘d that the personal injury law of the states was also not conceived with nuclear energy in mind. Moreover, petitioner’s argument misses one of the cen- tral points o’ the Court’s decision in Pacific Gas & Electric Co., which is that the purpose underlying state laws affecting nuclear facilities only becomes relevant if the state is acting pursuant to authority expressly re- served to it by federal law.‘ Before even reaching its analysis of the purpose of the state law at issue in that case, the Court was careful first to emphasize that any state regulation of the construction or operation of a nuclear power plant “even if enacted out of nonsafety concerns, would nevertheless directly conflict with the NRC’s exclusive authority over plant construction and operation.” 461 U.S. at 212 (emphasis added). Management of the workforce at a nuclear facility, including the exercise of the prerogatives to discipline and discharge employees, is indisputably a vital part of the operation of that facility. Especially where, as here, state law is sought to be applied to the exercise of man- agement prerogatives in the context of a workplace dis- pute that is alleged to have at its core an issue of radio- logical safety, the suggestion that this would not con- stitute state regulation of the operation of a nuclear 8 As is discussed supra, Pacific Gas & Electrie Co. involved an extension of the traditional economic regulation of electric utilities, a sphere of state regulatory activity explicitly preserved by Section 271 of the Atomic Fnergy Act, 42 U.S.C. § 2018. 17 facility is simply untenable. Thus, whether thought was given in the conception of North Carolina emotional distress law to its effects on the operation of nuclear facilities has utterly no bearing on the fact that federal law preempts state intrusions in such matters, regard'ess of whether such conflicts with exclusive federal authority were intended by the authors of state law. II. PETITIONER’S CLAIMS ARE PREEMPTED FOR THE FURTHER REASON THAT THE APPLICA- TION OF STATE LAW TO HER ALLEGATIONS OF RETALIATION WOULD STAND AS AN OBSTACLE TO, AND FRUSTRATE, FULL REALIZATION OF THE OBJECTIVES OF FEDERAL LAW GOV- ERNING THE REGULATION OF NUCLEAR FACILITIES. Even if Congress had no. completely occupied the field of nuclear safety, petitioner’s action here must be held to be preempted because the application of state law in the circumstances of her case would “‘stand[{] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Pacific Gas & Electric Co., 461 U.S. at 204 (quoting Hines v. Davido- witz, 312 U.S. 52, 67 (1941)). Indeed, when state law “presents the ‘prospect of interference with the federal regulatory power,’ then the state law may be pre-empted even though ‘collision between the state and federal regu- lation may not be an inevitable consequence.’ ” Schneide- wind v. ANR Pipeline Co., 485 U.S. 293, 310 (1988) (quoting Northern Natural Gas Co. v. State Corp. Comm’n, 372 U.S. 84, 91-92 (1963)). And where an application of state law may frustrate the objectives of federal law, it is the effect rather than the purpose of the state law that controls the preemption analysis. Jn- ternational Paper Co. v. Oulette, 479 U.S. 481, 498-99 ‘aa Perez v. Campbell, 402 U.S. 637, 651-52 Permitting state court actions such as petitioner’s would frustrate the intent of Congress to ensure expe- 18 ditious processing of Section 210 claims. While the stat- ute of limitations in Section 210 is 30 days, 42 U.S.C. § 5851(b) (1), the limitations period applicable to peti- tioner’s infliction of emotional distress claim under North Carolina law is apparently three years. Pet. App. 22a. Where Section 210 mandates that the Secretary of Labor issue her decision within 90 days in the adminis- trative process embraced by Congress, 42 U.S.C. § 5851 (b) (2), it is common knowledge tnat litigation in the courts can take many years to concede. The significance of these provisions calling for exp: