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Full Opinion
ORDER AMENDING OPINION AND AMENDED OPINION
ORDER
The mandate of this court, issued on April 14, 2008, is recalled. Our earlier order amending the opinion contained an inadvertent error. The opinion in this matter, filed August 14, 2007, amended on April 4, 2008, and published at In re Hanford Nuclear Reservation Litigation, 521 F.3d 1028 (9th Cir.2008), is amended as follows: Delete the paragraph beginning on slip op. p. 3624 and concluding on p. 3625.
No subsequent petition for rehearing or rehearing en banc may be filed. The mandate shall issue in due course.
OPINION
I. Introduction.
The origins of this case trace back more than sixty years to the height of World War II when the federal government solicited Appellants E.I. DuPont de Nemours & Co., General Electric, Inc., UNC Nuclear Industries, Inc., Atlantic Richfield Co., and Rockwell International Corp., (collectively “Defendants”) to operate the Han-ford Nuclear Weapons Reservation (“Han-ford”) in southeastern Washington. The Hanford Reservation was a plutonium-production facility that helped make the atomic bomb that dropped on Nagasaki, Japan in World War II.
A regrettable Hanford byproduct was the radioiodine emitted into the surrounding area. The plaintiffs in this litigation are over two thousand residents who now claim that these emissions, known as I-131, caused various cancers and other life-threatening diseases. The first group of plaintiffs filed a complaint in 1990 under the federal statute governing nuclear accidents, the Price-Anderson Act (“PAA”), claiming they were entitled to damages for injuries arising from a nuclear incident pursuant to 42 U.S.C. § 2210. The history is discussed in our earlier opinions in In re Hanford Nuclear Reservation Litigation, 292 F.3d 1124 (9th Cir.2002) (“In re Hanford ”); and Berg v. E.I. DuPont de Nemours & Co., 293 F.3d 1127 (9th Cir.2002) (“Berg”). After almost two decades of litigation, which already has included two appeals to this court, the parties in 2005 agreed to a bellwether trial. The trial was designed to produce a verdict that would highlight the strengths and weaknesses of the parties’ respective cases and thus focused on six plaintiffs (“Plaintiffs”) who were representative of the larger group. The purpose of the trial was to promote settlement and bring long-overdue resolution to this litigation.
Before us on appeal is a litany of issues stemming from the bellwether trial. A threshhold issue is whether Defendants may seek complete immunity under the common law government contractor defense, because they were operating Hanford at the request of the federal government. We hold that the defense is inapplicable as a matter of law, because Congress enacted the PAA before the courts recognized the government contractor defense, and the PAA provides a comprehensive liability scheme
In the alternative, Defendants argue that even if they are not immune, they are not strictly liable for any 1-131 emissions, because the amounts of the emissions were within federally-authorized levels; the plutonium-production process was not an abnormally dangerous activity that would create strict liability; and even if it were, Defendants qualify for the “public duty” exception to strict liability. The district court held that none of Defendants’ contentions were sufficient to relieve them of strict liability for the injuries they caused. We agree.
With respect to the trial itself, the district court with admirable diligence ruled on many issues of first impression. We hold that under Washington law, the district court properly instructed the jury that to impose liability, it had to find Han-ford was the “but for” cause of Plaintiffs’ diseases and not just a contributing cause under the more lenient “substantial factor” test. The court also made a host of evi-dentiary rulings that are before us on appeal. We hold that three of these rulings constitute reversible error with respect to three of the Bellwether Plaintiffs.
There are statute of limitations issues as well. We hold that any Hanford Plaintiffs who filed independent suits pending class certification are entitled to class action tolling.
Lastly, we hold that the district court properly dismissed any medical monitoring claims as not cognizable under the PAA. This is consistent with our decision in Berg, 293 F.3d 1127.
II. Background.
The United States government constructed Hanford during World War II to manufacture plutonium for military purposes. The facility was a component of the Army Corps of Engineer’s secret Manhattan Project, with the primary objective of developing an atomic bomb. In 1942, the Army Corps began hiring civilian contractors to help build and operate the Han-ford facility. It first recruited the University of Chicago Metallurgical Laboratory (“Met Lab”) to design the process and equipment to produce plutonium. It then solicited E.I. DuPont de Nemours & Co. (“DuPont”) to actually run the facility. It is apparent the government itself did not have the expertise or resources to operate Hanford.
DuPont initially refused. The government, however, persisted and implored DuPont to run the plutonium-production facility, because, as the government provided in DuPont’s contract, the project was of the “utmost importance” and was “necessary in facilitating the prosecution of the war.” DuPont eventually acquiesced, stating it would run the facility out of patriotic considerations. It accepted only one dollar as payment for its services. Several years later, the Hanford facility successfully produced the plutonium that was used in 1945 to drop the atomic bomb on Nagasaki and effectively end World War II. (The bomb dropped on Hiroshima was uranium-based, not plutonium-based).
As part of the plutonium-production process, the Hanford facility emitted 1-131, a fission byproduct known as radioiodine. 1-131 was known at the time to have potential adverse health effects on humans. Accordingly, the Met Lab scientists set tolerance doses for human exposure. For example, the Met Lab determined that the human thyroid should not absorb more than one rad per day for those individuals subject to continuous exposure in the area. A rad is a measurement of the amount of radioiodine absorbed into an organ or tissue. On the basis of these safe exposure limit estimates, the Met Lab approved a detailed operating procedure that would
On September 1, 1946, DuPont transferred its duties to General Electric (“GE”), which also agreed to earn no profit from its work. GE ran the Hanford facility through the Cold War. During the period of its operation, GE asked the federal government to increase cooling times to allow for lower emissions of 1-131. By this time, Congress had established the Atomic Energy Commission (“AEC”), see 42 U.S.C. §§ 2011-2013 (1946), and GE was bound by its determinations. The AEC denied the request for longer cooling times, and GE continued to produce plutonium consistent with government demands. By the 1950s, however, significant improvements were made to the production process, and 1-131 emission levels dropped.
In 1987, the United States Department of Energy (“DOE”) created the Hanford Environmental Dose Reconstruction Project (“HEDR”), overseen by the Center for Disease Control and Prevention. The underlying purpose of the HEDR was to estimate and reconstruct all radionuclide emissions from Hanford from 1944 to 1972 in order to ascertain whether neighboring individuals and animals had been exposed to harmful doses of radiation. Of particular concern to the HEDR were the estimated doses of 1-131 received by the thyroid glands of humans, principally through consumption of milk from cows that ingested contaminated vegetation on neighboring farms and pastures. The HEDR concluded that 1-131 emissions peaked during the period from 1944 to 1946, when an estimated 88% of Hanford’s total iodine emissions occurred. HEDR explained that in later years, emissions declined because of technological advances. In 1990, the Technical Steering Panel of HEDR released a report entitled Initial Hanford Radiation Dose Estimates that publicly disclosed for the first time that large quantities of radioactive and nonradioactive substances had been released from Han-ford, beginning in the 1940s.
This disclosure sparked a blaze of litigation. Thousands of plaintiffs filed suit pursuant to the Price-Anderson Act, 42 U.S.C. § 2210(n)(2), which had been amended in 1988 to provide exclusive federal jurisdiction over all claims arising from a nuclear incident, otherwise known as public liability actions. The PAA allowed the plaintiffs to sue private parties, such as DuPont, and to consolidate the claims in federal district court. Id. While Congress wanted to ensure that victims of nuclear incidents recovered compensation, it also included government indemnification provisions in the PAA to give private parties an incentive to participate in the nuclear industry. See, e.g., S. Rep. No. 100-70, at 14 (1988), reprinted in 1988 U.S.C.C.A.N. 1424,1425-26.
The PAA provides that although federal courts have exclusive and original jurisdiction over claims stemming from nuclear incidents, the substantive rules of decision are provided by the law of the state in which the nuclear incident occurs. See 42 U.S.C. § 2014(hh). Plaintiffs therefore brought tort claims under Washington law, asserting that because Defendants were engaged in an abnormally dangerous activity, they were strictly liable for any Han-ford-caused radiation illness.
On August 6, 1990, a group of plaintiffs filed a joint consolidated complaint in the Eastern District of Washington, alleging a class action against Defendants. In 1991, the district court consolidated any and all Hanford-related actions pending in various
Accordingly, pending class certification, the litigation proceeded as a consolidated action. Throughout this period, the district court entertained a handful of disposi-tive motions, which led to two appeals to this court. In 2002, we heard In re Han-ford, 292 F.3d 1124, challenging the district court’s dismissal of plaintiffs who could not establish they received a “doubling dose” of radiation. We held that Plaintiffs’ claims should proceed even if they could not show that Hanford radiation doubled their risk of illness, and we remanded for trial. Id. at 1139.
We also heard the appeal in the related case, Berg, 293 F.3d 1127. The Berg plaintiffs had not yet suffered from any illness, but sued Defendants for medical monitoring. We held that medical monitoring claims were not compensable under the PAA and upheld the district court’s dismissal of those actions with prejudice. Id. at 1133.
After our decisions in In re Hanford and Berg, Judge William Fremming Nielsen steered the case toward resolution. The parties agreed to proceed with a bellwether trial, hoping it would reveal the strengths and weaknesses of their respective cases and thus pave the way for a settlement. The parties eventually agreed on twelve bellwether plaintiffs. Six of these plaintiffs had their claims dismissed on dispositive, pre-trial motions. The remaining six plaintiffs went to trial in April 2005.
The Bellwether Plaintiffs represent plaintiffs who suffer from various thyroid diseases they claim were caused by radiation emanating from Hanford. Plaintiffs Gloria Wise and Steven Stanton have thyroid cancer. Plaintiffs Wanda Buckner, Shirley Carlisle, and Kathryn Goldbloom suffer from hypothyroidism, a condition that slows the body’s metabolism. Hypothyroidism is most frequently caused by Hashimoto’s disease, an illness that Plaintiffs claim was caused by Hanford radiation. Plaintiff Shannon Rhodes suffers from lung cancer, which her doctors concluded was a form of Hurthle cell thyroid cancer that had metastasized from a thyroid lobe previously removed.
Prior to trial, the Bellwether Plaintiffs made several motions to strike Defendants’ affirmative defenses. Defendants first claimed that the government contractor defense insulated them from all liability. The district court, in an unpublished 2003 order, struck the defense under Federal Rule of Civil Procedure 12(b), holding that the PAA displaced any such defense as a matter of law. In a published order, the court also ruled that plutonium production at Hanford was an abnormally dangerous activity warranting strict liability under Washington law. In re Hanford Nuclear Res. Litig., 350 F.Supp.2d 871, 888 (E.D.Wash.2004). It then limited the issues at trial to causation and damages. Id.
The primary dispute at trial was whether the amount of radiation to which each plaintiff was exposed was sufficient to be the cause-in-fact of his or her thyroid disease. There was extensive testimony that 1-131 radiation causes Hashimoto’s disease, a cause of hypothyroidism, and that 1-131 can also be a contributing factor to thyroid cancer. The testimony revealed, however, that to date epidemiological studies can establish only that radiation of at least 100 rads is a contributing factor to thyroid illness. Some epidemiological
Because many Plaintiffs were not exposed to radiation above 40 rads, and no Plaintiff was exposed to radiation above 100 rads, Plaintiffs had to present expert testimony that scientific extrapolation permitted a finding of causation below 40 rads. Their primary experts were Dr. Terry Davies, an endocrinologist, Dr. Sara Peters, a pathologist, Dr. F. Owen Hoffman, a causation expert, and Dr. Colin Hill, a radiation cell biologist. Plaintiffs also proffered the expert testimony of epidemiologist Dr. A. James Ruttenber, but key parts of his testimony relating to causation were excluded.
After fourteen days of trial and four days of deliberations, the jury found in favor of two plaintiffs, Steve Stanton and Gloria Wise; the jury hung with respect to one plaintiff, Shannon Rhodes; and it found in favor of Defendants with respect to the remaining three plaintiffs, Wanda Buckner, Shirley Carlisle, and Kathryn Goldbloom. As damages for prevailing plaintiffs, the jury awarded Stanton $227,508 and Wise $317,251. Because the jury could not reach a verdict with respect to Plaintiff Rhodes, the district court declared a mistrial. Rhodes re-tried her claims in front of a second jury in November 2005, and the jury entered a defense verdict on all counts.
Rhodes, along with the three non-prevailing plaintiffs in the first trial, appeal a variety of evidentiary rulings, as well as the district court’s jury instruction that under Washington law Plaintiffs had to prove “but-for” causation, rather than “substantial factor” causation. Defendants appeal the judgments entered in favor of the two prevailing plaintiffs, claiming the district court erred as a matter of law in striking the government contractor defense. In the alternative, Defendants argue that Plaintiffs may not proceed under a strict liability theory, because the 1-131 emissions were within federally-authorized levels. They also contend the plutonium-production process was not an abnormally dangerous activity under Washington law and, even if it were, that Defendants qualify for the narrow “public duty” exception to strict liability.
Defendants also contend that prevailing Plaintiff Wise’s suit was untimely under Washington’s statute of limitations. See Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Wise had filed an independent action in 1997, likely beyond the statutory period, but Defendants did not invoke American Pipe and the district court allowed Wise’s claim to proceed as part of the pending class action.
Apart from the issues relating to the Bellwether Plaintiffs, Plaintiffs Pamela Durfey, Paulene Echo Hawk, and Dorothy George, who do not yet have symptoms of any thyroid disease, sued Defendants for the costs of medical monitoring. The district court, following this court’s decision in Berg, 293 F.3d at 1132-33, held that the PAA precluded any medical monitoring claims that were unaccompanied by physical injury. Rather than remanding those claims to state court, however, the district court held that the PAA bestowed exclusive jurisdiction in the federal courts for claims arising from a nuclear incident, and that therefore the PAA’s provisions preempted any state-derived medical monitoring claim. Accordingly, it directed entry of final judgment for DuPont under Federal Rule of Civil Procedure 54(b). The plaintiffs appeal this dismissal.
III. The Government Contractor Defense.
The overarching issue before us is Defendants’ contention that the government contractor defense is available to
The government contractor defense is by now an established component of federal common law, but it was first recognized by the Supreme Court less than twenty years ago in Boyle v. United Techs. Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). The defense is intended to implement and protect the discretionary function exception of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(a), which was enacted after World War II. The defense allows a contractor-defendant to receive the benefits of sovereign immunity when a contractor complies with the specifications of a federal government contract. Boyle, 487 U.S. at 511-12, 108 S.Ct. 2510. As the Court said in Boyle, “[i]t makes little sense to insulate the Government against financial liability for the judgment that ... equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production.” Id. at 512, 108 S.Ct. 2510.
As a threshold matter, we agree with Defendants that the government contractor defense applies not only to claims challenging the physical design of a military product, but also to the process by which such equipment is produced. Accordingly, a contractor who agrees to operate a production facility pursuant to government specifications may qualify for the defense.
The issue here, however, is whether the PAA preempts reliance on the common law doctrine, either because the defense contradicts the federal statute or because the statute predates the defense. Congress is presumed to “legislate against a background of common-law adjudicatory principles.” Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). A federal statute enacted after a common law doctrine has been established will not therefore abrogate the federal common law rule unless the statute speaks directly to the question addressed by common law. United States v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993). This is because “where a commonlaw principle is well established ... the courts may take it as given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident.” Astoria, 501 U.S. at 108, 111 S.Ct. 2166 (internal quotations and citations omitted) (holding that the court should assume Congress drafted the Age Discrimination in Employment Act with the common law administrative estoppel doctrine in mind); see also Pasquantino v. United States, 544 U.S. 349, 359, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005).
Whether the PAA preempts the government contractor defense is therefore a two-step inquiry. We must first determine whether the government contractor defense was well-established at the time Congress enacted the operative version of the PAA. If so, we must determine whether a statutory purpose contrary to the government contractor defense is evident. The defense fails the first inquiry. Defendants are not entitled to the government contractor defense, because the statute predates clear judicial recognition of any such defense. In addition, the stat
The Supreme Court’s decision in Boyle was filed on June 27, 1988. Less than two months later, the PAA was amended, on August 20, 1988, to include the pertinent language establishing exclusive federal jurisdiction for all public liability claims arising from nuclear incidents. While the government contractor defense was technically a recognized common law principle at the time Congress enacted the PAA, it was hardly a well-established doctrine. See Astoria, 501 U.S. at 108, 111 S.Ct. 2166. (noting that courts should presume Congress legislated with an expectation that a common law doctrine would apply only if the common-law principle was well-established). Congress did not have the benefit of any well-established common law principles relating to the government contractor defense when Congress drafted the relevant provisions of the PAA. The Supreme Court defined the defense only a few weeks before the PAA was signed into law.
The origins of the defense in the cases antecedent to Boyle do not materially affect this analysis. In 1940, the Supreme Court arguably planted the seeds of the government contractor defense in Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 20-21, 60 S.Ct. 413, 84 L.Ed. 554 (1940). It held that an agent of the government could not be held liable under the Takings Clause for the defective construction of a dam that damaged land, as long as the agent followed government specifications for the dam’s construction. The Court limited the applicability of the defense to principal-agent relationships where the agent had no discretion in the design process and completely followed government specifications. Nothing in Yearsley extended immunity to military contractors exercising a discretionary governmental function. See Boyle, 487 U.S. at 524-25, 108 S.Ct. 2510 (J. Brennan, dissenting) (Yearsley is “a slender reed on which to base so drastic a departure from precedent” .... “[It] has never been read to immunize the discretionary acts of those who perform service contracts for the Government”).
While some circuit courts began extending the Yearsley doctrine to military contractors as early as the 1960s, see McKay v. Rockwell Int’l Corp., 704 F.2d 444, 448-49 (9th Cir.1983) (citing cases), other circuits held that Yearsley was clearly limited to principal-agent relationships and did not apply to military contractors, see, e.g., Bynum v. FMC Corp., 770 F.2d 556, 564 (5th Cir.1985). In light of the conflicting authority on the matter, it is clear that neither the scope nor the contours of the defense were well-defined until the Supreme Court’s 1988 decision in Boyle. We therefore conclude that the government contractor defense was not judicially well-established at the time Congress enacted the PAA.
Because Congress did not enact the PAA against a back-drop of well-established common law principles that included the government contractor defense, we cannot grant immunity from liability.
Defendants argue that even if the doctrine was not judicially well-established, Congress passed the 1988 amendments to the Act with the defense in mind and intended that it apply. The defendants point to a provision in the PAA relating to underground detonation. The provision is 42 U.S.C. § 2210(d)(7), which states as follows:
A contractor with whom an agreement of indemnification has been executed under paragraph (1)(A) and who is engaged in activities connected with the underground detonation of a nuclear explosive device shall be liable, to the extent so indemnified under this subsec*1002 tion, for injuries or damage sustained as a result of such detonation in the same manner and to the same extent as would a private person acting as principal, and no immunity or defense founded in the Federal, State, or municipal character of the contractor or of the work to be performed under the contract shall be effective to bar such liability.
Defendants contend the provision demonstrates that Congress intended to eliminate the modern government contractor defense for underground detonation and further contend that the provision demonstrates Congress intended the government contractors defense as we know it today to apply to all other claims arising out of nuclear incidents.
The language of § 2210(d)(7) is not clear. It refers to “immunity or defense” founded on the “character of the contractor or of the work.” It thus appears to be referring to traditional sovereign immunity from any liability rather than the more sophisticated principles of accountability that underlie modern exceptions of governmental tort liability. See Federal Tort Claims Act, 28 U.S.C. § 2680(a); Boyle, 487 U.S. at 512,108 S.Ct. 2510.
Even assuming, however, that Congress intended to ensure that the modern defense did not apply to underground detonation claims, it does not follow that Congress also intended, without saying so, that the defense would apply in all other situations. Such a result would conflict with the Congressional statutory aim to provide compensation for nuclear injuries.
The defense is therefore inconsistent with Congressional purpose and the PAA preempts the defense for that reason as well. Congress drafted a precise, comprehensive litigation scheme for injuries sustained in a nuclear incident. The federal courts have recognized this Congressional intent. See O’Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1099 (7th Cir.1994); In re TMI Litig. Cases, 940 F.2d 832, 854-55 (3d Cir.1991) (“In re TMI Litig.”). That scheme governs the conduct of this litigation. As the district court correctly concluded, “Congress has clearly spoken to the claims at issue in this case and its pronouncement, not a more general court-created common law defense[,] should govern the resolution of the claims.” In re Hanford Nuclear Reservation Litig., No. 91-3015, slip op. at 11, 2004 WL 5372420 (E.D.Wash. Mar. 30, 2004).
Congress enacted the PAA with twin goals in mind: to provide an incentive to contractors to participate in the nuclear industry by limiting their liability, and to compensate victims of nuclear accidents. See, e.g., Pub.L. No. 100-408, 102 Stat. 1066 (1988); S. Rep. No. 100-218, at 4-13 (1987), reprinted in 1988 U.S.C.C.A.N. 1476, 1479-88. The Act placed Plaintiffs’ state law claims in federal court and provided indemnification of Defendants from the federal government for any liability to victims of nuclear incidents. See 42 U.S.C. § 2210; S. Rep. No. 100-218, at 13, reprinted in 1988 U.S.C.C.A.N. at 1484, 1488. To allow those entitled to indemnity as government contractors to disclaim any liability because they are government contractors would be inconsistent with the goal of the PAA to provide compensation to victims of nuclear incidents. We will not assume that in enacting the PAA’s comprehensive scheme, Congress intended, yet failed to state in the Act, that victims of nuclear incidents cannot recover tort damages from nuclear operators when the operators were pursuing government goals. Accordingly, we hold that the government contractor defense is inapplicable as a matter of federal law and affirm the district court’s ruling on this key issue.
Defendants next argue that the district court erred as a matter of Washington state law in holding Defendants strictly liable for any 1-131 emissions from the Hanford facility. Defendants challenge that ruling on three grounds: (1) that strict liability pursuant to Washington state law may not be imposed under the PAA if Defendants released 1-131 within federally-authorized emission levels; (2) even if state liability law applies, the Han-ford activity did not meet the “abnormally dangerous activity” test that warrants strict liability; and (3) even if Washington courts would apply a strict liability regime, Defendants would be exempted under the “public duty” exception that applies generally to heavily regulated entities doing potentially hazardous work. For the reasons below, we affirm the district court’s imposition of strict liability.
A. Federally-Authorized Emissions.
It is not disputed that the federal government is in charge of nuclear safety. “[T]he safety of nuclear technology [is] the exclusive business of the Federal Government,” which has “occupied the entire field of nuclear safety concerns.” Koller v. Pinnacle West Capital Corp., 2007 WL 446357, 2007 U.S. Dist. LEXIS 9186 (D.Ariz. Feb. 6, 2007) (second alteration in original) (quoting Pac. Gas Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 208, 212, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983)). Every federal circuit that has considered the appropriate standard of care under the PAA has concluded that nuclear operators are not liable unless they breach federally-imposed dose limits. See, e.g., O’Conner, 13 F.3d at 1105; In re TMI Litig., 940 F.2d at 859; Roberts v. Fla. Power & Light Co., 146 F.3d 1305, 1308 (11th Cir.1998); Nieman v. NLO, Inc., 108 F.3d 1546, 1553 (6th Cir.1997).
Defendants are thus correct insofar as they point out that the clear weight of authority supports the principle that federal law preempts states from imposing a more stringent standard of care than federal safety standards. Strict liability may not be imposed for 1-131 releases within federally-authorized limits, because any federal authorization would preempt state-derived standards of care. To allow a jury to decide on the basis of a state’s reasonableness standard of care would “put juries in charge of deciding the permissible levels of radiation exposure and, more generally, the adequacy of safety procedures at nuclear plants—issues that have explicitly been reserved to the federal government.” In re TMI Gen. Publ. Utils. Corp., 67 F.3d 1103, 1115 (3d Cir.1995) (citing Pacific Gas, 461 U.S. at 212, 103 S.Ct. 1713). This result would undermine the purpose of a comprehensive and exclusive federal scheme for nuclear incident liability.
Defendants then go further, however, and argue that the district court in this case permitted the jury to substitute its view of a reasonable emission standard for a government standard. The problem with Defendants’ argument is that no federal standards governing emission levels existed at the time of the 1-131 emissions. Defendants try to remedy this problem by pointing to “tolerance doses” recommended and implemented by military and government scientists working on the Han-ford project and ask us to equate such recommendations with federally-authorized emission levels. They are not the same.
These tolerance doses, although established under the aegis of the United States Army, did not carry the force of law and thus cannot provide the basis for a safe harbor from liability. They amounted to no more than site-specific safety rules.
Defendants are correct that it would not have been possible for an agency to establish emission levels in the early 1940s, because the Atomic Energy Act was not enacted until 1954 and the Nuclear Regulatory Commission was created in 1974. In fact, the emissions occurred even prior to the enactment of the Administrative Procedure Act in 1946. This history, however, undermines Defendants’ position, because it highlights the absence of any federal machinery to promulgate legal standards on which Defendants could have reasonably relied to insulate them from liability to those living and breathing twenty-four hours a day in the area surrounding Hanford. The need for such standards was not recognized until many years later.
B. Abnormally Dangerous Activity.
Defendants next argue that even if state law standards apply in this case, the district court erred by holding that Washington tort law would impose strict liability. Specifically, Defendants contend that operating the Hanford facility does not constitute an “abnormally dangerous activity” under Washington law. We review de novo the question of whether an activity is abnormally dangerous, Langan v. Valicopters, Inc., 88 Wash.2d 855, 567 P.2d 218, 221 (1977), and we affirm.
Washington has adopted the Restatement (Second) of Torts, sections 519 and 520, which outline the strict liability regime for abnormally dangerous activities. Klein v. Pyrodyne Corp., 117 Wash.2d 1, Additional Information