Full opinion text
OPINION HEDGES, United States Magistrate Judge. INTRODUCTION This matter comes before me on plaintiffs motion to remand. I have considered the papers submitted in support of and in opposition to the motion. I heard oral argument on March 9,1998. BACKGROUND From 1916 through 1956, the Maywood Chemical Works (“Maywood Chemical”) manufactured iridescent gas mantles at a facility located in Maywood and Rochelle Park, New Jersey (“the facility”). As part of the manufacturing process Maywood Chemical “milled,” or extracted, thorium, a radioactive metal, from monazite ore. One byproduct of thorium milling is “tailings,” a sand-like residue similar in appearance to clay. Since it contains residual amounts of radioactive material in the state of decay, thorium tailings can present a substantial health hazard. Maywood Chemical also conducted other manufacturing activities at the facility, including leather digestion, caffeine extraction, and the production of protein, lithium, aromatic chemical, and narcotic and flavor products. These operations also produced manufacturing waste. That waste was stored, along with Maywood Chemical’s thorium tailings, in earthen-diked areas located on the facility’s property. It is this mixed waste that forms the basis of this action, for it now appears that waste from the facility is responsible for radiological and chemical contamination of over 80 commercial and residential properties throughout the communities of Maywood, Lodi, and Rochelle Park, New Jersey. It is alleged that the waste was conveyed into the surrounding communities by various means. Some waste is said to have migrated through Lodi Brook — which ran through the facility until it was replaced by a storm drainage system — and onto neighboring properties. Other waste is alleged to have been physically removed and transported to properties offsite for use as mulch, fill, and surface grade. Still other waste is said to have leached into ground and subsurface water, resulting in the contamination of eleven wells in Lodi, and the municipal pools of Lodi, Maywood and Rochelle Park. Finally, it is alleged that waste was used as fill when a section of Route 17 was constructed across a portion of the facility in 1932. , Plaintiff, a former resident of Lodi, claims that his real property and water supply were contaminated by waste from the facility. His action, which was commenced in the Superior Court of New Jersey, Middlesex County, on December 9,1997, seeks recovery for injuries resulting from his personal exposure, and the exposure of his property, to these contaminants. Plaintiff is not alone. His attorneys represent over 400 present and former residents of Maywood, Lodi, and Rochelle Park, who also contend that they, their relatives and/or their property were injured by exposure to waste from the facility. Indeed, when plaintiffs attorneys commenced his action in state court, they also filed 256 separate but similar actions on behalf of their other clients. Rather than submit 257 complaints, however, plaintiffs attorneys, with the approval of Middlesex County court officials, filed a single joint Complaint (the “Joint Complaint”), which was then adopted in whole or in part by the plaintiffs in each of the 257 actions (individual filing fees, totaling some $45,000 in the aggregate, were also paid). The Joint Complaint is an unwieldy beast. Its 71 pages of captions (one for each of the 257 actions) fronts 101 pages of allegations and pleadings. Forty-six counts plead causes of action for negligence, absolute liability, strict liability, trespass, nuisance, battery, per quod damages, millison, wrongful death, consumer fraud, intentional spoliation of evidence, and punitive damages. Named defendants include Stepan Company (“Step-an”), which acquired Maywood Chemical and the facility in 1959, T.J. Gustenhoven Real Estate, Higgins Realtors, Gentry Realty Associates, Michael Tracey, and various fictitious entities and individuals. Not all defendants were named in every count, however, and not every count was adopted by plaintiff in the action sub judice. Only the causes of action for negligence, absolute liability, strict liability, trespass, nuisance, battery, per quod, millison, and intentional spoliation of evidence were adopted by plaintiff, and these were only alleged against Stepan and the various fictitious entities and individuals. Stepan removed this action on January 7, 1998. The Notice of Removal alleges that removal was proper on several grounds. The first is that plaintiffs claims are completely pre-empted by the exclusive cause of action for injuries arising out of “nuclear incidents” provided by the Priee-Anderson provisions of the Atomic Energy Act of 1954, 42 U.S.C. § 2210. The second is that “at relevant times” Stepan was an agent or employee of the federal government and, therefore, plaintiffs claims fall under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1) & 2671-80. The third is that Stepan was a “person acting under” a federal officer in regard to the conduct which underlies plaintiffs claim for intentional spoliation of evidence, and, therefore, removal was proper under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1). The fourth and last basis for removal is that diversity of citizenship under 28 U.S.C. § 1332 exists between the parties. On February 6, 1998, plaintiff filed an Amended Complaint as of right under Rule 15(a). The Amended Complaint, which is a mere 16 pages in length, drops the claims for millison, per quod, and intentional spoliation of evidence. It also substitutes two real persons for fictitious defendants: Robert Vernieri, who is alleged to have been a hauler/transporter of the waste which was taken to properties offsite for use as mulch and fill, and John O’Brien, who is alleged to have been a Stepan plant manager who conspired to conceal Stepan’s wrongful, contaminant-releasing activity from plaintiff. At the same time, plaintiff filed this motion to remand under 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction. DISCUSSION A removed action must be remanded “if at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c). The burden of establishing the propriety of removal and the existence of subject matter jurisdiction falls on the removing party. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990), cert. denied, 498 U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991). Furthermore, removal statutes are “strictly construed against removal and all doubts should be resolved in favor of remand.” Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987). With this standard in mind, I turn to Stepan’s four asserted grounds upon which jurisdiction can rest. Diversity Jurisdiction. A defendant can remove from state court any civil action “of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a) & (b). Under 28 U.S.C. § 1332(a), district courts have original jurisdiction over civil actions when there is diversity of citizenship between parties and the amount in controversy exceeds $75,000. However, “[a] case falls within the federal district court’s ‘original’ diversity ‘jurisdiction’ only if diversity of citizenship among the parties is complete, i.e., only if there is no plaintiff and no defendant who are citizens of the same State.” Wisconsin Dept. of Corrections v. Schacht, — U.S. -, -, 118 S.Ct. 2047, 2052, 141 L.Ed.2d 364 (1998). At the same time, a plaintiff cannot defeat removal merely by naming a non-diverse defendant; that defendant also has to be “properly joined and served” for removal to be barred. § 1441(b), see Schacht, — U.S. at -, 118 S.Ct. at 2053 (diversity measured by status of action and parties in state court at time of removal). Furthermore, for purposes of removal “the citizenship of defendants sued under fictitious names shall be disregarded.” § 1441(a). Here, the only non-fictitious defendant named by plaintiff prior to removal was Stepan. Since it is uncontroverted that plaintiff is a citizen of New Jersey, Joint Complaint at 72, and that Stepan is a Delaware corporation with its principal place of business in Illinois, Joint Complaint at 97, diversity was complete at the time of removal. Jurisdiction, therefore, is proper under sections 1332 and 1441. Unfortunately, that is not the end of the inquiry. The Amended Complaint plaintiff filed as of right after removal substituted Vernieri and O’Brien for two fictitiously-pled defendants. Plaintiff now claims that Verni-eri and O’Brien are non-diverse and that this action must be remanded. Pursuant to 28 U.S.C. § 1447(e), a federal court can either permit the post-removal joinder of non-diverse, jurisdiction-destroying parties and remand, or it can deny their joinder and retain the action. Stepan argues that denial of joinder is the proper course since plaintiff has not averred sufficient facts to demonstrate that Vernieri and O’Brien are not fraudulently joined. There is another problem, however, and it stands in the way of my resolving the section 1447(e) joinder issue. The Amended Complaint fails to allege the citizenship of Verni-eri and O’Brien. I cannot make findings of fact as to citizenship when there are no facts on the issue of citizenship in the record. I need not concern myself with this dilemma, however, if I find that one of Stepan’s other asserted grounds for jurisdiction is valid. The Price-Anderson Provisions of the Atomic Energy Act of1954. The Price-Anderson Act (“the Act”), 42 U.S.C. § 2210, vests district courts with original jurisdiction over “any public liability action arising out of or resulting from a nuclear incident.” 42 U.S.C. § 2210(n)(2). Moreover, the Act expressly authorizes removal by a defendant of any such action commenced in state court to the district court “in the district where the nuclear incident takes place.” § 2210(n)(2). The Atomic Energy Act of 1954, as amended, 42 U.S.C. §§ 2011-2281, of which the Price-Anderson Act is but a section, defines “public liability action” as 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. [42 U.S.C. § 2014(hh)]. “Public liability,” in turn, is defined as any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including all reasonable additional costs incurred by a State, or a political subdivision of a State, in the course of responding to a nuclear incident or a precautionary evacuation), except (i) claims under State or Federal workmen’s compensation acts of employees of persons indemnified who are employed at the site of and in connection with the activity where the nuclear incident occurs; (ii) claims arising out of an act of war; and (in) whenever used un 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. [42 U.S.C. § 2014(w)]. “Nuclear incident,” is defined in relevant part 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. [42 U.S.C. § 2014(q)]. Since thorium falls within the definition of “source material,” 42 U.S.C. § 2014(z), and thorium tailings within the definition of “byproduct material,” § 2014(e), Stepan argues that the claims asserted in the Joint Complaint assert legal liability arising out of an “occurrence ... causing ... bodily injury, sickness, [etc.,] arising out of or resulting from the radioactive, toxic, explosive or other hazardous properties of source ... or byproduct material.” In short, Stepan argues that plaintiff pleads a public liability action properly removable under the Act. Plaintiff, relying on In re Cincinnati Radiation Lit., 874 F.Supp. 796 (S.D.Ohio 1995), contends that for there to be an “occurrence,” as that word is used in the definition of “nuclear incident,” there must be an unintended release of radioactive material. The Joint Complaint, plaintiff argues, alleges only intentional releases of thorium, and thorium tailings, and thus the Act does not apply. Stepan counters that under the plain language of the Act, the intentional/unintentional distinction plaintiff relies upon is “spurious.” The resolution of the issue, therefore, would appear to turn on the proper construction of “occurrence” as utilized in the definition of “nuclear incident.” “[I]t is axiomatic that statutory interpretation begins with the language of the statute itself. Courts presume that Congress expressed its legislative intent through the ordinary meaning of the words it chose to use, and if the statutory language is únam-biguous, the plain meaning of the words ordinarily is regarded as conclusive.” In re TMI, 67 F.3d 1119, 1123 (3d Cir.1995) (citation omitted) (quoting Government of Virgin Islands v. Knight, 989 F.2d 619, 633 (3d Cir.1993)), cert. denied, 510 U.S. 994, 114 S.Ct. 556, 126 L.Ed.2d 457 (1993), cert. denied sub nom. Metropolitan Edison v. Dodson, 517 U.S. 1163, 116 S.Ct. 1560, 134 L.Ed.2d 660 (1996). Taken in isolation, the word “occurrence” conveys a broad meaning. Webster, for example, defines occurrence as “something that takes place” or “the action or process of happening or taking place.” Webster’s New International Dictionary 1561 (3d ed.1976). Random House defines it as “the action, fact or instance of occurring” and “something that happens; [an] event [or] incident.” Random House Dictionary of the English Language 1340 (2d ed.1987). However, “it is a fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.” Textron Lycoming Reciprocating Engine Div. v. United Auto., Aerospace and Agrie. Implement Workers of Am., 523 U.S. 653, -, 118 S.Ct. 1626, 1629, 140 L.Ed.2d 863 (1998) (quoting Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993)). In this regard, it is significant that the definition of nuclear incident employs “occurrence” in concert with the clause “including an extraordinary nuclear occurrence,” so as to read, “[t]he term ‘nuclear incident’ means any occurrence, including an extraordinary nuclear occurrence.” § 2014(q). The phrase extraordinary nuclear occurrence is statutorily defined: [t]he term “extraordinary nuclear occurrence” means any event causing a discharge or dispersal of source, special nuclear, or byproduct material from its intended place of confinement in amounts offsite, or causing radiation levels offsite, which the Nuclear Regulatory Commission or the Secretary of Energy, as appropriate, determines to be substantial, and which the Nuclear Regulatory Commission or the Secretary of Energy, as appropriate, determines has resulted or will probably result in substantial damages to persons offsite or property offsite_As used in this subsection, “offsite” means away from “the location” or “the contract location” as defined in the applicable Nuclear Regulatory Commission or the Secretary of Energy, as appropriate, indemnity agreement, entered into pursuant to section 2210 of this title. [42 U.S.C. § 2014(j)]. An occurrence which underlies the definition of “extraordinary nuclear occurrence” cannot be just “any event,” but can only be an event at ‘the location’ or ‘the contract location’ as those terms are defined “in the applicable ... indemnity agreement.” § 2014(j). The proximity to and interrelationship between the word “occurrence” and the phrase “extraordinary nuclear occurrence,” in turn, “presents a classic case for application of the ‘normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.’ ” Commissioner v. Lundy, 516 U.S. 235, -, 116 S.Ct. 647, 133 L.Ed.2d 611 (1996) (quoting Sullivan v. Stroop, 496 U.S. 478, 484, 110 S.Ct. 2499, 110 L.Ed.2d 438 (1990)); United States v. Nippon Paper Ind. Co., Ltd., 109 F.3d 1, 4 (1st Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998). As a matter of statutory construction, therefore, the occurrence which underlies a “nuclear incident,” can only be an event at “the location” or “the contract location” as that term is defined in an indemnity agreement entered into under § 2210. Such a construction also makes eminent sense in light of Price-Anderson’s statutory framework. To understand that framework, and to understand why the existence of an indemnification agreement defining “the location” is a necessary prerequisite to asserting a cause of action under Price-Anderson, requires a discussion of the history behind Price-Anderson’s enactment and amendment. The history behind Price-Anderson begins •with the passage of Atomic Energy Act of 1946, ch. 724, 60 Stat. 755 (1946), which “contemplated that the development of nuclear power would be a Government monopoly.” Duke Power Co. v. Carolina Environ. Study Group, Inc., 438 U.S. 59, 63, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). Soon after the passage of the 1946 Act Congress recognized, “that it would be in the national interest to permit private sector involvement in [the nuclear] industry under a system of federal licensing and regulation.” In re TMI Lit. Cases Consol. II, 940 F.2d 832, 852 (3d Cir.1991), cert. denied sub nom. Gumby v. General Pub. Util. Corp., 503 U.S. 906, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992) (“TMI II”). Congress thus enacted the Atomic Energy Act of 1954 (“AEA”), 68 Stat. 919 (1954) (codified as amended at 42 U.S.C. §§ 2011-2281), which provided for the “licensing of private construction, ownership, and operation of commercial nuclear power reactors for energy production under strict supervision by the Atomic Energy Commission (AEC).” Duke Power, 438 U.S. at 63, 98 S.Ct. 2620; see 42 U.S.C. §§ 2133, 2134 & 2235. Private industry, however, viewed the opportunity to participate in this young field with guarded concern, for “[i]t soon became apparent that profits from the private exploitation of atomic energy were uncertain and the accompanying risks substantial.” Duke Power, 438 U.S. at 63-64, 98 S.Ct. 2620. As the Supreme Court explained, [although the AEC offered incentives to encourage investment, there remained in the path of the private nuclear power industry various problems — the risk of potentially vast liability in the event of a nuclear accident of a sizable magnitude being the major obstacle. Notwithstanding comprehensive testing and study, the uniqueness of this form of energy production made it impossible totally to rule out the risk of a major nuclear accident resulting in extensive damage. Private industry and the AEC were confident that such a disaster would not occur, but the very uniqueness of nuclear power meant that the possibility remained, and the potential liability dwarfed the ability of the industry and private insurance companies to absorb the risk. [438 U.S. at 64, 98 S.Ct. 2620], Indeed, the risks were substantial enough that “spokesmen for the private section informed Congress that they would be forced to withdraw from the field if their liability were not limited by appropriate legislation.” 438 U.S. at 64, 98 S.Ct. 2620. In 1957, Congress responded by enacting the Price-Anderson Act, Pub.L. No. 85-256, 71 Stat. 576 (1957) (codified as amended at 42 U.S.C. § 2210 (1996)), for the purpose of “protecting] the public and ... encouraging] the development of the atomic energy industry.” TMI II, 940 F.2d at 852 (quoting 42 U.S.C. § 2012). Price-Anderson mandated that an assured “pool” of available funds be established to cover certain liabilities which might arise out of activities related to licenses issued under the AEA for the construction and operation of nuclear power plants. For each such license, the pool was constituted in the following manner: The first-tier contributor to the pool was the licensee, which 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.” Price-Anderson Act, sec. 4, §§ 170(a) & (b) (codified as amended at §§ 2210(a) & (b)), reprinted in 1957 U.S.C.C.AN. 629, 630. The amount of financial protection the licensee was required to carry was set by AEC regulation, although the benchmark was “the amount of liability insurance available from private sources.” Price-Anderson Act, sec. 4, § 170(b), reprinted in 1957 U.S.C.C.AN. at 630. The second-tier contributor was the AEC itself. It was required to enter into an indemnification agreement with any licensee who was required by license to maintain financial protection. Price-Anderson Act, sec. 4, § 170(c) (codified as amended at § 2210(c)), reprinted in 1957 U.S.C.C.AN. at 630-31. The indemnification agreement was required to provide, in turn, that in the event the amount of financial protection held by the licensee became exhausted by liability for damages arising from an accident, the AEC would step in and contribute an additional $500 million to cover the liability that remained. Once both the licensee’s financial protection and the AEC indemnification were exhausted, Price-Anderson provided for a “limitation of liability” that capped the remaining liability flowing from an accident. Price-Anderson Act, sec. 4, § 170(e) (codified as amended at § 2210(e)), reprinted in 1957 U.S.C.C.A.N. at 631. Licenses for the construction and operation of nuclear power facilities, however, were not the only licenses authorized under the AEA. The AEA also authorized the AEC to license the production and possession of nuclear materials, such as source, special nuclear, and byproduct materials. See 42 U.S.C. §§ 2073, 2093 & 2111. While Price-Anderson did not mandate, as it did with plant licenses, that assured pools of coverage be established and maintained in regard to liabilities arising from activities involving these materials licenses, it did provide that the AEC could subject materials licences to Price-Anderson at AEC’s discretion. Price-Anderson Act, sec. 4, § 170(a), reprinted in 1957 U.S.C.C.A.N. at 630. In granting the AEC this discretion, however, Congress warned that [i]t is not expected that ordinarily the Commission will use the authority given it with respect to these ... three types of materials. However, there may be rare instances in which the licensee, without at the same time being a licensee of a facility, may have such large quantities of materials or such quantities of especially dangerous or hazardous materials as to warrant the imposition of the provisions of this bill. [S.Rep. No. 85-296 (1957), reprinted in 1957 U.S.C.C.A.N. 1803, 1820], Price-Anderson also added four definitions, along with that for “financial protection,” to the AEA. Together, the four defined phrases served to identify which persons were entitled to claim against, and which claims were compensable from, a Price-Anderson pool of assured funds. First, the Act defined the phrase “licensed activity” to mean “an activity licensed pursuant to [the AEA] and covered by the provisions of section 170a [requiring the maintenance of financial protection].” Price-Anderson Act, sec. 3, § ll(n) (codified as amended at 42 U.S.C. § 2014(p)), reprinted in 1957 U.S.C.C.A.N. at 629; S.Rep. No. 85-296, reprinted in 1957 U.S.C.C.A.N. at 1817 (“ ‘li-cenced activity1 ... means any activity for which a license is issued ... but for which the Commission requires financial protection under section 170a”). It was these activities which Congress or the AEC identified as carrying the risk of potentially wide-ranging liability which the pool of assured funds was intended to insure against. Next, the phrase “nuclear incident” pinpointed the “event” that would arise out of, or be connected with, the licensed activity and lead to the extensive liability-generating injuries Price-Anderson was intended to address. “Nuclear incident” was defined to mean any occurrence within the United States causing bodily injury, sickness, disease, or death, or loss of or damage to property, or for 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. [Price-Anderson Act, sec. 3, § ll(o) (codified as amended at 42 U.S.C. § 2014(q)), reprinted in 1957 U.S.C.C.A.N. at 629], As the Senate Report accompanying the Price-Anderson Act explained, “[t]he occurrence which is the subject of this definition is that event at the site of the licensed activity, or activity for which the Commission has entered into a contract, which may cause damage.” S.Rep. No. 85-296, reprinted in 1957 U.S.C.C.A.N. at 1817. In turn, the phrase “public liability” identified the types of claims arising from a nuclear incident that would qualify to be compensated from the pool of financial protection and indemnification funds: The term ‘public liability1 means any legal liability arising out of or resulting from a nuclear incident, except claims under State or Federal Workmen’s Compensation Acts of employees of persons indemnified who are employed at the site of and in connection with the activity where the nuclear incident occurs, and except for claims arising out of an act of war. ‘Public liability1 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 and used in connection with the activity wheré the nuclear incident occurs. [Price-Anderson Act. sec. 3, § ll(u) (codified as amended at 42 U.S.C. § 2014(w)), reprinted in 1957 U.S.C.C.A.N. at 629-30], The definition of public liability was drawn broadly to assure that members of the public were afforded compensation for injuries arising out of a nuclear incident. A proposal which would have excluded coverage under the Act for injuries resulting from a nuclear incident wilfully caused was rejected. As the Senate Report explained, “[t]he suggestion ... that willful damages be excluded was not accepted since the damage to the public is the same, whether caused by any means— willful or nonwillful.” S.Rep. No. 85-296, reprinted in 1957 U.S.C.C.A.N. at 1819. Moreover, to constitute a claim for public liability it was not necessary that the liability be that of the person who held the license for the activity out of which the nuclear incident arose. The pool of assured funds associated with a licensed activity covered any liability of any person arising out of a nuclear incident. The “channeling” of all liability to the fund was assured by two mechanisms. First, the provisions of the insurance policies maintained by the licensee as financial protection assured that the policy ran to the benefit of “any other person who may be liable for a nuclear incident.” S.Rep. No. 85-296, reprinted in 1957 U.S.C.C.A.N. at 1811-12. Second, the Aet required that AEC indemnity agreements provide for the indemnification of all “persons indemnified,” a phrase the AEA defined to mean “the person with whom an indemnity agreement is executed and any other person who may be liable for public liability.” Price-Anderson Act, sec. 3, § ll(r) (codified as amended at 42 U.S.C. § 2014(t)), reprinted in 1957 U.S.C.C.A.N. at 629; S.Rep. 85-296, reprinted in 1957 U.S.C.C.A.N. at 1818-19. Price-Anderson guaranteed that compensation would be available to the public regardless of fault and that no legitimate claim would be uncompensated due to the insolvency of a defendant. One of the significant features of the original Price-Anderson Aet was the limited role it envisioned the federal courts would play in the enforcement of the Act’s provisions. Although the Act identified, through the phrase “public liability,” the realm of claims which were compensable out of Price-Anderson funds, it did not originally create a federal cause of action or provide a federal forum for the resolution of such claims. See Kiick v. Metropolitan Edison Co., 784 F.2d 490, 492-94 (3d Cir.1986); Stibitz v. General Public Utilities Corp., 746 F.2d 993, 996-97 (3d Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). Instead, liability and the measure of damages for claims arising from nuclear incidents was to be determined by state law, and jurisdiction to decide the such claims remained, by default, in the hands of the state courts. Kiick, 784 F.2d at 493-94 (“[ujnder the Price-Anderson system, the claimant’s right to recover from the fund established by the act is left to the tort law of the various States”) (iquoting S.Rep. No. 89-1605 (1966), reprinted in 1966 U.S.C.C.AN. 3201, 3206). However, the Act did provide for one narrow aspect of federal jurisdiction: The AEC or any person indemnified could apply to a district court for an appropriate order enforcing the limitation of liability, upon a showing “[tjhat the public liability from a single nuclear incident will probably exceed the limit of liability imposed by [the Act].” Price-Anderson Act, sec. 4, § 170(e), reprinted in 1957 U.S.C.C.AN. at 631. As the Senate Report explained, “[b]y this procedure the right of the State courts to establish the liability of the persons involved in the normal way is maintained, but the payment of those liabilities can be stayed [when the limit of liability is likely to be exceeded]. This will permit a payment to all persons who suffer damage on a prorated basis and it will not permit full payment to the first claimants with no payment to the last claimants.” S.Rep. No. 85-296, reprinted in 1957 U.S.C.C.A.N. at 1823-24. Fifty years after Price-Anderson’s enactment, the basic framework of the insurance/indemnification, limitation of liability, and compensation scheme remains. At the same time, Congress has made several significant alterations. For example, the Act now permits the Nuclear Regulatory Commission (“NRC”) to exempt any nonprofit educational institution wishing to obtain a license to construct and operate a reactor for educational purposes from the Act’s financial protection requirements. See 42 U.S.C. § 2210(k). Despite granting such an exemption, however, the NRC is still required to indemnify the institution for public liability in excess of $250,000, up to a limit of $500 million. § 2210(k)(l). Congress also reorganized the pool pay-in structure for licenses to operate large, commercial power-generating reactors. See 1975 Amendment to the Atomic Energy Act of 1954, Pub.L. No. 94-197, secs. 2-7, § 170(a) — (f), 89 Stat. 1111 (1975) (codified as amended at 42 U.S.C. § 2210(a)-(f)). The reorganization was prompted by congressional recognition that the industry had matured to the point where it could begin to assume more of the liabilities associated with a potential nuclear incident. S.Rep. No. 94-454, at 10 (1975), reprinted in 1975 U.S.C.C.A.N. 2251, 2259-60; see Duke Power, 438 U.S. at 66-67, 98 S.Ct. 2620 (discussing 1975 Amendment). The industry’s ability to maintain progressively higher amounts of financial protection also prompted an adjustment to the limitation of liability provision: Damages are now capped at the greater of $560 million or the amount of financial protection carried by the licensee. § 2210(e). The changes to Price-Anderson which are most relevant here, however, are those which expanded, first in 1966 and again in 1988, the jurisdiction granted the federal courts with regard to claims for public liability. The 1966 amendment grew out of congressional concern that, under the 1957 provisions, two different victims of a serious nuclear incident “might be subject to different substantive and procedural laws ... simply by reason of an invisible State boundary line that separates them.” S.Rep. No. 89-1605, reprinted in 1966 U.S.C.C.A.N. at 3208. In particular, Congress was concerned that “there was no assurance that all State courts would impose a rule of strict liability in the event of a [serious] nuclear incident. Because of his inability to prove negligence the victim in such a case might, therefore, go without compensation for his injury or damage.” Sen. R. No. 89-1605, reprinted in 1966 U.S.C.C.A.N.. at 3203-04; see Duke Power, 438 U.S. at 64, 98 S.Ct. 2620. Nor, for that matter, did all state statutes of limitations account for the delayed manifestation of radiation injuries. S.Rep. No. 89-1605, reprinted in 1966 U.S.C.C.AN. at 3208. The solution Congress devised amended Price-Anderson to provide that certain defenses of persons indemnified would be waived in the case of a serious nuclear incident. The AEC was authorized to require indemnification agreements with licensees and contractors and insurance policies or contracts furnished as proof of financial protection to incorporate provisions which waive (i) any issue or defense as to conduct of the claimant or fault of persons indemnified, (ii) any issue or defense as to charitable or governmental immunity, and (iii) any issue or defense based on any statute of limitations if suit is instituted within three years from the date on which the claimant first knew, or reasonably could have known, of his injury or damage and the cause thereof, but in no event more than ten years after the date of the nuclear incident. 1966 Amendment to the Atomic Energy Act of 1954, Pub.L. 89-645, sec. 3, § 170(n)(l), 80 Stat. 891 (codified as amended at 42 U.S.C. § 2210(n)(l)), reprinted in 1966 U.S.C.C.AN. 1052, 1054]. By this method, Congress could assure uniformity in key aspects of tort law, while preserving “the approach followed in enacting the original Price-Anderson Act — namely, interfering with State law to the minimum extent necessary.” S.Rep. No. 89-1605, reprinted in 1966 U.S.C.C.A.N. at 3209. As noted, Congress intended the contractual waivers of defenses to apply only in the case of a serious nuclear incident. To this end, the 1966 Amendment defined a new phrase, “extraordinary nuclear occurrence,” which delineated the class of occurrences that would trigger application of the waivers. S.Rep. No. 89-1605, reprinted in 1966 U.S.C.C.AN. at 3210-12 (threshold triggering waiver provisions “is identified by the term ‘extraordinary nuclear occurrence’ ”). The new definition provided: [t]he term ‘extraordinary nuclear occurrence’ means any event causing a discharge or dispersal of source, special nuclear, or byproduct material from its intended place of confinement in amounts offsite, or causing radiation levels offsite, which the Commission determines to be substantial, and which the Commission determines has resulted or will probably result in substantial damages to persons offsite or property off-site .... As used in this subsection, ‘off-site’ means away from ‘the location’ or ‘the contract location’ as defined in the applicable Commission indemnity agreement, entered into pursuant to section 170. [1966 Amendment, sec. 1(a)(1), § ll(j), (codified as amended at 42 U.S.C. § 20140), reprinted in 1966 U.S.C.C.AN. 1052-53]. The amendment also incorporated the new phrase into the definition of “nuclear incident” so as to assure that claims arising from an extraordinary nuclear occurrence (“ENO”) were recognized as compensable from Price-Anderson funds. 1966 Amendment, sec. 1(a)(4), § 170(q) (codified as amended at 42 U.S.C. § 2014(q)), reprinted in 1966 U.S.C.C.AN. at 1053 (inserting the phrase “including an extraordinary nuclear occurrence,” after the phrase “[t]he term ‘nuclear incident’ means any occurrence”). As the Senate Report to the 1966 Amendment explained, [b]eeause subsections [2210(c) and (d) ] provide that the Commission shall agree to indemnify for public liability arising from “nuclear incidents,” this addition to the definition of “nuclear incident” makes clear that indemnity may be paid for liability arising out of extraordinary nuclear occurrences which, in fact, do cause the kind of injury or damage referred to in the definition of “nuclear incident.” [S.Rep. No. 89-1605, reprinted in 1966 U.S.C.C.AN. at 3224], To further assure that all victims of an ENO received uniform and equitable treatment under the Act, Congress also added a provision which vested the district court where the ENO took place with original jurisdiction over “any public liability action arising out of or resulting from [that] extraordinary nuclear occurrence.” 1966 Amendment, sec. 3, § 170(n)(2) (codified as amended at 42 U.S.C. § 2210(n)(2)), reprinted in 1966 U.S.C.C.AN. at 1054-55. This provision also permitted (but did not require) the removal from state court of any ENO-related claim for public liability, as well as for the transfer of all such claims from district courts without proper venue. See S.Rep. No. 89-1605. reprinted in 1966 U.S.C.C.AN. at 3214-15. As for public liability claims which arose out of mere (non-extraordinary) occurrences, Congress retained the original structure of Price-Anderson; thus, federal courts could intervene in the disposition of non-extraordinary claims only when it appeared likely that the limitation of liability under Price-Anderson was going to be exceeded. It was the claims experience arising out of the March, 1979 accident at the Three-Mile Island (“TMI”) nuclear reactor facility which prompted Congress in 1988 to further expand federal jurisdiction to include public liability claims for nuclear incidents arising out of all occurrences. The TMI accident generated in excess of 150 separate cases, filed in various state and federal courts, asserting “public liability” claims on behalf of over 3,000 claimants. S.Rep. No. 100-218, at 13 (1987), reprinted in 1988 U.S.C.C.AN. 1476, 1488. However, since the NRC had determined that no event underlying the TMI incident constituted an ENO, no district court had federal question jurisdiction to hear the claims. Kiick, 784 F.2d at 494-96. As a result, the provisions of Price-Anderson which allowed for the consolidation of ENO-related claims in one federal court were unavailable to defendants named in the TMI cases, and each case had to proceed separately in the jurisdiction in which it was commenced. It was the inefficiency which resulted from having TMI claims determined separately by courts in different states which led Congress to create federal jurisdiction over all “public liability actions arising out of or resulting from a nuclear incident.” 42 U.S.C. § 2210(n)(2). As the Third Circuit explained: The decision to expand the jurisdictional grant was based upon the fact that the experience with claims following the TMI accident demonstrated the advantages of the ability to consolidate claims after the nuclear incident. Attorneys representing both plaintiffs and defendants in the TMI litigations testified ... that the ability to consolidate claims in federal court would greatly benefit the process for determining compensation for claimants.... The availability of the provisions for consolidation of claims in the event of any nuclear incident ... would avoid the inefficiencies resulting from duplicative determinations of similar issues in multiple jurisdictions that may occur in the absence of consolidation. [TMI II, 940 F.2d at 853 n. 18 (quoting S.Rep. No. 100-218, reprinted in 1988 U.S.C.C.AN. at 1488) ]. Congress made two amendments to Price-Anderson to effect the change in jurisdiction. First, it added yet another definition to the AEA, that for the phrase “public liability action.” Price-Anderson Amendments Act of 1988 (“Amendments Act”), Pub.L. 100-408, see. 11(b), § ll(hh), 102 Stat. 1066, 1076 (codified at 42 U.S.C. § 2014(hh)). The definition provided that, [t]he 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. [42 U.S.C. § 2014(hh) ]. The new definition had the effect of creating a federal cause of action under the Act for public liability claims arising out of a nuclear incident. TMI II, 940 F.2d at 857. This federal cause of action also effectively preempted any state cause of action previously available to remedy the same wrong. TMI II, 940 F.2d at 854-55. The new definition did not, however, work an expansion in the universe of claims which were compensa-ble out of Priee-Anderson funds. The Amendments Act next substituted the phrase “nuclear incident” for the phrase “extraordinary nuclear occurrence” in the Act’s jurisdictional provision. Amendments Act, sec. 11, § 170(n)(2), 102 Stat., at 1076 (codified at 42 U.S.C. § 2210(n)(2)). As amended, the provision stated that “[w]ith respect to any public liability action arising out of or resulting from a nuclear incident, the United States district court in the district where the nuclear incident takes place ... shall have original jurisdiction.” § 2210(n)(2). The' Third Circuit characterized the change as follows: The Amendments Act creates a federal cause of action which did not exist prior to the Act, establishes federal jurisdiction for that cause of action, and channels all legal liability to the federal courts through that cause of action. By creating this federal program which requires the application of federal law, Congress sought to effect uniformity, equity, and efficiency in the disposition of public liability claims. With the federal jurisdiction and removal provisions set forth in the Amendments Act, Congress ensured that all claims resulting from a given nuclear incident would be governed by the same law, provided for the coordination of all phases of litigation and the orderly distribution of funds, an assured the preservation of sufficient funds for victims whose injuries may not become manifest until long after the incident.... Thus, Congress clearly intended to supplant all possible state causes of action when the factual prerequisite of the statute are met. [TMI II, 940 F.2d at 856-57 (citation omitted) ]. With that background in place, the issue before me is crystal clear: Do the injuries alleged in the Joint Complaint arise out of an event at the site of activity which is covered by a Priee-Anderson indemnification agreement? The answer is no. While it is true that any thorium or thorium tailings at the facility may have been the subject of AEC or NRC licenses for source and/or byproduct materials, see Aronson Cert., Ex. H (Source Material License No. R-103, issued to Maywood Chemical Works on April 1, 1954) & Ex. I (Source Material License No. STC-130, issued to Maywood Chemical Works Division of Stepan Chemical Co. on March 7,1961); DeCarlo Cert., Ex. D (Materials License No. STC-1333, Amend. No. 3, issued to Stepan Chemical Company on November 5, 1987), licenses for these types of-materials have never been subject to Price-Anderson’s financial protection provisions. Therefore, neither the AEC nor the NRC would have entered into an indemnification agreement covering activity conducted under such licenses. In the absence of an indemnification agreement, entered into under 42 U.S.C. § 2210 and covering the activities which gave rise to the liability alleged, there can be no “occurrence,” that is, no event at the site of “licensed activity,” that would constitute a “nuclear incident.” Without a nuclear incident, there is no claim for public liability, and without a claim for public liability, there is no federal jurisdiction under Price-Anderson. Admittedly, the path to this result is not entirely self-evident, and, as a result, the few reported opinions which have confronted the issue have reached inconsistent and, I believe, incorrect results. Take, for example, In re Cincinnati, the decision relied upon by plaintiff for the proposition that a release must be unintentional to constitute an occurrence. Although In re Cincinnati reached the correct result — it found there had been no occurrence under the Act — it did so for the wrong reasons. In re Cincinnati recognized that in 1988 Congress had considered, and rejected, a proposal to make licenses covering radiopharmaceuticals (the materials involved in that case) among those “license[s] [that] shall ... have as a condition of the license a requirement that the licensee have and maintain financial protection.” § 2210(a); see 874 F.Supp. at 832 n. 33; S.Rep. No. 100-218, at 8-9, reprinted in, 1988 U.S.C.C.A.N. at 1483-84. In rejecting this proposal, Congress noted that the NRC already possessed the discretion to subject such licenses to the requirements of the Act and had declined to do so. H.R.Rep. No. 100-104, pt. 1, at 19-20. Congress did, however, direct the NRC to reconsider this decision through a negotiated rulemaking proceeding. That proceeding, in. turn, produced a recommendation, adopted by the NRC, that the requirements of the Act not be extended. 54 Fed.Reg. 22444 (1989) (termination of rulemaking proceeding). In re Cincinnati recognized that “Congress was pressured to extend the boundaries of the Act to nuclear medicine, and specifically declined to do so.” 874 F.Supp. at 832. However, the court failed to recognize the exact implication, within the framework of the Act, of that decision. Instead, In re Cincinnati concluded that “in this case, the nuclear source at issue was employed as intended and cannot give rise to a claim under the Price-Anderson Act. Moreover, liability under the Price-Anderson Act turns on the existence of a ‘nuclear incident,’ which does not occur when there is no unintended escape or release of nuclear energy.” 874 F.Supp. at 832. Price-Anderson, however, neither requires that a nuclear source be used as intended nor requires that the escape or release of nuclear material be unintended. What Price-Anderson does require is that the escape or release occur in connection with indemnified activity, and neither the production nor application of radiopharma-ceuticals is an activity which would qualify for indemnification since licenses for such activities are not subject to section 2210(a)’s financial protection requirements. Kerr-McGee Carp. v. Farley, 115 F.3d 1498 (10th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 880, 139 L.Ed.2d 868 (1998), also misconstrues the Act. Farley involved an attempt by Kerr-McGee to enjoin a Navajo Tribal Court from exercising jurisdiction over a complaint which alleged that certain tribal members residing on the reservation had been injured by radioactive and toxic materials released from a uranium milling facility operated by Kerr-McGee on land leased from the tribe. Farley, 115 F.3d at 1500. Kerr-McGee contended that the complaint alleged a public liability action and that § 2210(n)(2) provided federal courts with exclusive jurisdiction over such claims. 115 F.3d at 1500-01. The primary issue addressed by the Tenth Circuit was whether “the Price-Anderson Act so obviously preempts tribal jurisdiction that an action in tribal court “would be patently violative of express jurisdictional prohibitions,’ and that abstention in favor of tribal exhaustion is inappropriate.” 115 F.3d at 1502. However, before reaching the abstention issue, Farley first addressed an argument raised by the defendants (the plaintiffs in the tribal court action) that the Price-Anderson Act “simply does not apply ... because Kerr-McGee does not have an indemnity agreement with the federal government.” Farley, 115 F.3d at 1504. The tribal defendants based their argument on Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), a pre-Amend-ments Act case, which at one point states: Although the Price-Anderson Act does not apply to the present situation, the discussion preceding its enactment and subsequent amendment [in 1966] indicates that Congress assumed that persons injured by nuclear accidents were free to utilize existing state tort law remedies. [Silkwood, 464 U.S. at 251-52 & n. 12, 104 S.Ct. 615 (second footnote omitted) ]. Farley rejected the tribal defendants’ argument, explaining that Silkwood simply refused to apply the indemnification provisions of [the Act] to the claim in that case because the defendant lacked the necessary indemnity agreement. Nothing in Silkwood suggests that the absence of an indemnity agreement makes [the Act’s] jurisdictional provisions inapplicable. Furthermore, as quoted ... the jurisdictional provisions of [the Act], as amended by the 1988 Amendments, appear broad enough to create a federal forum for any tort claim even remotely involving atomic energy production. [115 F.3d at 1504 (citations omitted) ]. However,’ in reaching the conclusion that Price-Anderson’s jurisdictional provisions “appear” to sweep broadly, Farley relied on a paraphrase, rather than a quote, of the definition of “nuclear incident.” This paraphrase, moreover, omits the key clause “including an extraordinary nuclear occurrence.” 115 F.3d at 1504 (“‘nuclear incidents’ ... are defined ... to include any occurrence causing any personal or property damage arising out of the toxic, radioactive, explosive or other hazardous properties of atomic or byproduct materials”). Farley never considered whether the statutory definition of extraordinary nuclear occurrence, or any other defined phrase for that matter, shed light in any way on the proper construction of the definition of nuclear incident. It also appears that Farley misread Silk-wood. Silkwood addressed the question of whether certain provisions of the AEA which provided for the exclusive federal regulation of nuclear safety preempted “a state-authorized award of punitive damages arising out of the escape of plutonium from a federally licensed nuclear facility.” Silkwood, 464 U.S. at 241, 104 S.Ct. 615. As the opinion explained, at the time of the “escape” which formed the basis of the suit occurred, the plutonium facility was not subject to an indemnification agreement, and, thus “the Price-Anderson Act does not apply.” 464 U.S. at 251-52; see 464 U.S. at 279, 104 S.Ct. 615 (Powell, J., dissenting) (“[the Act] did not apply at all to the Kerr-McGee plant at the time of this incident”) (emphasis added). However, although Price-Anderson did not control the analysis, the Court still found the legislative history of the Act to be illuminating. Silkwood, 464 U.S. at 251-55, 104 S.Ct. 615; see In re TMI, 67 F.3d at 1124. In particular, the Court focused on the discussion regarding the decision to leave the substantive determinations as to liability and damages on claims for public liability to state courts. Silkwood, 464 U.S. at 253-55, 104 S.Ct. 615. These discussions, the Court noted, demonstrated a belief on the part of Congress that state tort law remained undisturbed by the enactment of the AEA in 1954. 464 U.S. at 254-55, 104 S.Ct. 615 (“[i]f other provisions of the [AEA] already precluded the States from providing remedies to its citizens, there would have been no need [to assure Price-Anderson would not preclude them]”). Based in part on this history, Silk-wood concluded that although the federal occupation of the field of nuclear safety under the AEA did not, in itself, preempt state tort law, preemption could still occur when “there is an irreconcilable conflict between the federal and state standards [of nuclear safety] or [when] the imposition of a state standard in a damages action would frustrate the objectives of the federal law.” 464 U.S. at 256, 104 S.Ct. 615. Farley, however, read Silkwood to suggest that in addition to the federal government having occupied the field of nuclear safety under the AEA, it had also occupied the field of “nuclear industry liability” under Price-Anderson. Farley thus read Silkwood to hold that while the AEA’s occupation of the field did not preempt state law in 1957, the amendment of the AEA by Price-Anderson in 1957 would have preempted state law were it not for the fact that Price-Anderson did not create a conflicting federal cause of action: In 1957, Congress amended the AEA through the Price-Anderson Act (PAA), creating specific protections from tort liability for the nuclear industry. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984).... While the PAA specifically made nuclear industry liability a federal concern, Congress initially chose not to create a specific federal cause of action for nuclear torts; rather, the legislative history suggests that Congress was content to allow liability to be dictated by existing causes of action. Silkwood, 464 U.S. at 252-55, 104 S.Ct. at 623-25 (finding state punitive damages statute not preempted by the PAA). [Farley, 115 F.3d at 1503]. Farley apparently failed to recognize, however, that the field of “nuclear industry liability” with which Price-Anderson was concerned did not extend to the entire field of “nuclear safety” that was the concern of the AEA. Farley equated the “the nuclear industry,” i.e., those in “private industry” given a role in the “production and use of atomic materials” by the AEA’s licensing scheme, with those afforded “specific protections from tort liability” by Price-Anderson. 115 F.3d at 1503. In short, Farley viewed Price-Anderson’s “protections” as shielding all persons licensed pursuant to the AEA. Farley, therefore, proceeded to conclude that the creation of a federal cause of action by the Amendments Act was an indication that “Congress intended to expand federal control over safety and liability issues involving the nuclear industry.” 115 F.3d at 1504. The new provisions, therefore, preempted all state-law “nuclear torts,” by creating “a federal forum for any tort claim even remotely involving atomic energy production.” 115 F.3d at 1503-04 (“[w]hile not otherwise superseding the decision in Silk-wood, the 1988 Amendments can be read in part as a congressional response to the result in Silkwood suggesting that the PAA never preempts state punitive damages awards”). Since Farley concluded that Price-Anderson’s “protections,” i.e., its jurisdictional provisions, extended to all AEA licenses, it was immaterial that Silkwood stated that Price-Anderson’s indemnification provisions only applied to certain licenses. Farley’s confusion is understandable. One cannot, by merely reading Silkwood (or TMI II, another decision to which Farley refers), conclusively determine whether Price-Anderson’s jurisdictional provisions operate independently from its indemnification provisions. Nor does a paraphrase of the definition of “nuclear incident” lead to the conclusion that the Act employs the word “occurrence” more narrowly than its ordinary meaning. However, as discussed extensively above, whether as a matter of statutory construction or the structure and history of the Act, no claim for public liability can lie in the absence of an applicable indemnity agreement. There is also the recent unreported decision of Gassie v. SMH Swiss Corp., 1998 WL 71647 (E.D.La. Feb.17, 1998) to consider. Gassie involved a claim that “tritium, a radioactive isotope used in Swatch Watches to provide luminescence, escaped [from the watches] and was absorbed into the bodies of [plaintiffs.” Gassie, 1998 WL 71647, at *1. The defendant, a NRC licensee, removed the action, asserting that the plaintiffs alleged a public liability action arising out of a nuclear incident. While Gassie conceded that “there is little support in the legislative history or in other legal precedent for the idea ... that the leaking of tritium from Swatch Watches constitutes a nuclear incident,” it nonetheless concluded that, “the unambiguous words of the Price-Anderson Act indicate that Plaintiffs’ claims do constitute a public liability action arising from a nuclear incident.” 1998 WL 71647, at *5. Again, in addition to not considering the context in which the language of the Price-Anderson is employed, Gassie, like Farley, failed to recognize that the Act is not universally applicable to all AEA licenses. For example, in describing the defendant’s argument for the application of the Act, Gassie confuses Price-Anderson’s provisions with the AEA’s provisions for the regulation of nuclear materials: Although Defendants attempt to present two arguments for removal, namely the Price-Anderson Act and complete preemption based on pervasive federal regulations of tritium, the federal regulations Defendants rely upon are merely a supplement to the Price-Anderson Act. If the Price-Anderson Act does not provide federal jurisdiction, the federal regulations promulgated under that act will not provide federal jurisdiction either. [1998 WL 71647, at *2], Further indication that Gassie construed the coverage of the Act to be coextensive with the NRC’s authority to regulate nuclear materials under the AEA is found in the suggestion that the plaintiffs claims would not be preempted (despite coming within the “unambiguous words” of the Act) “if it can be established that the NRC permitted regulatory control of nuclear by-products to be assumed by the State of Louisiana.” 1998 WL 71647, at *6. Gassie apparently was referring here to a provision of the AEA, 42 U.S.C. § 2021, which was added in 1959 “in order to ‘clarify the respective responsibilities ... of the States and the Commission with respect to the regulation of byproduct, source and special nuclear materials.’ ” Silkwood, 464 U.S. at 250, 104 S.Ct. 615 (quoting 42 U.S.C. § 2021(a)(1)). Under this provision [t]he Commission was authorized to turn some of its regulatory authority over to any State which would adopt a suitable regulatory program. However, the Commission was to retain exclusive regulatory authority over “the disposal of such ... byproduct, source or special nuclear material as the Commission determines ... should, because of the hazards or potential hazards thereof, not be disposed of without a license from the Commission.” 42 U.S.C. § 2021(c)(4). The States were therefore still precluded from regulating the safety aspects of these hazardous materials. [464 U.S. at 250, 104 S.Ct. 615 (footnote omitted) ]. Gassie, assumed, however, that since the materials at issue were still subject to licenc-ing under the AEA, they must, by default, be covered by Price-Anderson: “The alleged radioactive discharge from Swatch Watches in Plaintiffs’ Complaint seems to constitute the very kind of radiation hazard to which the Price-Anderson Act must apply in the absence of a regulatory control agreement between a state and the NRC.” 1998 WL 71647, at *7. Gassie also relied upon yet another section of the AEA, 42 U.S.C. § 2114, “[a]s further support for the appropriateness of applying the Price-Anderson Act in the absence of a regulatory agreement between a state and the NRC.” 1998 WL 71647, at *7. Section § 2114(a)(1), Gassie exp