dissenting.
I disagree with most, but not all, of the points which are developed in the majority opinion. I disagree also with the result reached. I have no disagreement with the affirmance of the award of $5,000 to the estate of Karen Silkwood based upon destruction of her furniture and belongings.
I
Alleged Exclusiveness of the Remedy of Workmen’s Compensation
From the fact that the statute presumes in favor of the existence of a workmen’s compensation remedy where an employee is injured and makes a claim, the majority opinion reaches the conclusion that this presumption is also available to the Company where the employee has not made a claim. No such suggestion is made in the statute. Authority in support of this position is either meagre or non-existent.
The first issue to be considered is whether the workers’ compensation remedy is exclusive as a matter of law under the facts in the record. Kerr-McGee’s position is that the evidence and the law call for liberal construction in favor of coverage and that, therefore, the exclusive remedy was that under workers’ compensation. The cases say that the Act is not to be given a narrow, restricted meaning and must receive broad and liberal interpretation in order to realize its intent; reasonable doubt as to whether the injury arose out of and in the course of employment is to be resolved in favor of an injured workman. City of Nichols Hills v. Hill, 534 P.2d 931, 934 (Okl. 1975); Murphy v. Owens-Corning Fiberglass Corp., 447 F.Supp. 557, 571 (D.Kan.1977), aff’d. 78-1082 (10th Cir. July 13, 1979).
Workers’ Compensation as an Issue of Fact
Alternatively, however, Kerr-McGee maintains that it was entitled to have the workers’ compensation issue submitted to the jury. The argument is that the trial court erred in refusing to instruct the jury *924on the subject of worker’s compensation inasmuch as Oklahoma law provides for jury determination of the coverage question where the evidence is conflicting. The Oklahoma courts have held that, in a common law tort action where the worker’s compensation defense is raised, the jury must be instructed on the defense unless as a matter of law only one inference can be drawn from the evidence: “where there is room for a reasonable difference of opinion as to the proper inference to be drawn from the known facts, the issue [of worker’s compensation] is for the jury under proper instructions by the court.” Flick v. Crouch, 434 P.2d 256 (Okl.1967).
Oklahoma considers the question as one of fact for the jury where a question exists as to whether the injury occurred on the job or, on the other hand, away from the job.
Analysis of the Evidence
Three incidents in which Silkwood was shown to have had plutonium contamination are established by the evidence. The resulting inferences indicate that the sources of the contaminations were both Silkwood’s apartment and the Kerr-McGee laboratory. Since neither place was an exclusive source, the issue qualified as a factual dispute.
The first of the three incidents occurred on November 5, 1974 at 1:20 p. m. when Silkwood reported for work. At 2:45 and 3:15, before and after taking a break, Silk-wood monitored herself with a plutonium detecting device provided by Kerr-McGee in accordance with the AEC requirements. No plutonium was detected on her person at that time. However, about 3:45 p. m. Silk-wood began to work in two glove boxes which contained plutonium. A glove box is a supposedly impervious box surrounding the plutonium processing equipment which has glove holes allowing the operator to work on the equipment with the plutonium from outside the box. When Silkwood monitored herself at 5:30 p. m. and 5:45 p. m., no contamination was detected. She continued to work in the glove boxes and upon withdrawing her hands from one of the boxes about 6:30 p. m. she did find contamination. Further checks were made in the laboratory and other contaminations were found, particularly inside the gloves and the glove box in which she had been working, polishing and containing plutonium. The contamination was found on Silkwood’s left hand, right wrist, upper arm, neck, face, hair and in her nostrils. She was immediately decontaminated and placed on a five day voiding collection program, and was furnished with urine and fecal, kits to take home for the purpose of obtaining samples which were to be sent to the United States Testing Laboratory for analysis. She monitored herself at 1:10 a. m. and found no contamination. The glove box was later tested by AEC investigators and no leaks were found. The investigators found no significant airborne contamination in the laboratory.
The second of the three incidents occurred on November 6, 1974. Silkwood arrived at work that day at 7:50 a. m. and did some paperwork in the lab until 8:50 a. m. At that time, she left to attend a union meeting. Before leaving she tested herself and found contamination on her hands. Tests showed fixed contamination of her right forearm, face and neck. Her hands were then decontaminated. Since the other spots appeared to be fixed contamination, she was allowed to proceed to the union meeting. She returned to the health office at 4:30 p. m., where a slight contamination was found on her right forearm, neck and face and in her nostrils. Again she was decontaminated, and at her request her locker and auto were tested and found to be free of contamination. The described second incident raises a question because she had not been working with plutonium on the 6th of November at all. She had been restricted to paperwork in the lab prior to going to the union meeting. When she was monitored, the tests showed that she was contaminated, but she apparently had had no exposure within the plant which would have produced contamination. The logical inference is that this contamination occurred away from the plant.
*925The third incident of contamination occurred the next day, November 7th, 1974. This apparently occurred away from work. Silkwood went directly to the plant’s health and physical office when she reported to work. There she was found to be contaminated in her nostrils and on her hands, her arms, chest, back, neck and right ear. Four urine samples and one fecal sample collected on or after November 4th were found to be contaminated, although the exterior of the kits showed no contamination. It was stipulated by the parties that urine samples brought to the plant had been spiked with plutonium; that is, they contained insoluble, non-naturally excreted plutonium. Here again the positive evidence was that the exposure occurred in her apartment.
It was after this that Silkwood’s apartment was found to have been contaminated. The highest concentrations of plutonium were found in the bathroom and on a package of bologna and cheese in the refrigerator. It could be inferred that the contamination from the first incident occurred within the plant. This was the day that she was working inside the glove boxes. On the second day, however, she had been performing paperwork in the lab until 8:50 a. m., at which time she left to attend a union meeting. Before leaving she tested herself and found contamination on her hands, etc. We noted above that she had had no exposure within the plant which would have produced contamination, with the possible exception of the papers that she was working with.
The third contamination incident obviously occurred away from the plant and presumably at her home because she went directly to the physical health office when she reported for work and was found to be contaminated in her nostrils, on her hands, arms, chest, back, neck and right ear. This was the day, too, that she presented urine samples spiked with plutonium.
The majority opinion concludes that the inference to be drawn is that all of the plutonium contamination occurred at the plant. This, however, ignores the fact that there is substantial evidence showing that contamination occurred off the premises, in her apartment, and indeed this evidence jibes with the evidence that the apartment itself was substantially contaminated.
A good deal of evidence was offered which was designed to show that Kerr-McGee had a motive for intentionally exposing her to contamination. She was not popular in the plant among the loyal employees. This was due to the work that she was shown to have been engaged in, her evidence gathering activities, and her efforts to show that plutonium was escaping from the plant.
Following Silkwood’s death, the autopsy revealed that the amount of plutonium within her body at the time of her death was between 25% and 50% of the permissible lifetime body burden allowed by the AEC for plutonium workers. From her body condition and from the contamination that was found in her apartment, together with the evidence of her personal contamination, the logical inference is that the contamination took place outside the plant.
Defendants’ theory of the case was, of course, that all of the contamination originated on the premises of the company. On the other hand, the plaintiff’s theory of the case was that all exposure originated in Silkwood’s apartment. The evidence is susceptible to either conclusion. In the face of such conflicting evidence, the question should go to the jury (as Kerr-McGee has requested alternatively). It was error for the majority to ignore the disputed facts and to hold that all the inferences favored the conclusion that contamination had been suffered on the premises of Kerr-McGee. Submission to a jury of twelve would have been the fair and conclusive way to solve this conflict.
II
Allowance of Property Damages
In allowing the award of property damages to the plaintiffs, the majority distinguishes between personal injury, which it holds to be subject to workers’ compensation, and property damage, which is not so *926recoverable. Kerr-McGee argues, however, that its substantial compliance with preemptive federal regulations is conclusive evidence of due care and precludes recovery under a strict liability standard applicable to a private civil action. The fact that the federal government did not find fault on Kerr-McGee’s part does not provide full and pervasive immunity.
The $5,000 property damage award, is not regarded by the majority as a remedy which would significantly interfere with federal regulations of Kerr-McGee’s plant. I agree.
Furthermore, the majority says that the AEC has not been authorized to provide a compensatory award for property or other losses to a victim of a nuclear injury unless the injury falls within the Price-Anderson Act, which is intended to compensate victims of a widespread nuclear catastrophe. In further discussion, the majority notes that the Supreme Court, and Congress also, have recognized that state tort law principles continue to be applicable to some extent in off-site damage cases. In Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), the Supreme Court noted that the right to utilize common-law remedies “at least with regard to nuclear accidents was replaced by the compensation mechanism of the statute.” 438 U.S. at 88, n. 33,98 S.Ct. at 2638 n. 33. This statement clearly implies that such remedies remain intact in cases which do not involve a nuclear accident.
In enacting the Price-Anderson Act, 71 Stat. 576 (1957), 42 U.S.C., Congress sought to address the problem likely to result from nuclear disasters which might deter the industrial development of nuclear energy. The Act requires nuclear energy companies to take out insurance in order to protect against these extraordinary nuclear occurrences. In respect to nuclear incidents below the level of the extraordinary cases, i.e., cases like the present controversy which is conceded to be a lesser incident, private tort actions arising under state common law are to be used. Indeed, the congressional commentary expresses this interest.
The majority also concedes that strict liability is a theory which is to be pursued in this area, and that Oklahoma would apply strict liability to the escape of plutonium, a highly toxic and dangerous substance. Young v. Darter, 363 P.2d 829 (Okl.1961) (herbicide spray); Kirkland v. General Motors Corp., 521 P.2d 1353 (Okl.1974). Thus, the majority recognizes that nuclear energy is an area in which no court is likely to refuse to recognize the applicability of strict liability. Restatement of Torts, Second, § 520, Comment g (1977). The very essence of liability without fault is, of course, the carrying on of ultrahazardous activity, that which exposes to an abnormal risk. In conducting this kind of activity, it is foreseeable that serious injury will occur irrespective of fault. The risk is of such great magnitude that the activity is ultra-hazardous, such that the person carrying on the activity is liable regardless of fault.
This then was the rationale of the majority for affirming the award of $5,000 property damages. As noted at the outset, we do not dispute this conclusion.
The jury also found that Silkwood did not intentionally or wilfully remove plutonium from the plant. All of the plutonium was conceded to have originated on the Kerr-McGee premises.
Ill
Does the Atomic Energy Act of 1954 Impliedly Preempt That Part of the State Remedy Which Authorizes Punitive Damages?
It is recognized in the majority opinion that nowhere in the Price-Anderson Act is there any mention of punitive damages. It is admitted, however, that mention in the Price-Anderson Act that state law may determine tort liability is susceptible to being read to permit punitive as well as compensatory damages in states like Oklahoma which permit them. The opinion considers important the fact that with regard to extraordinary nuclear occurrences (governed by Price-Anderson), provision is made for *927compensatory damages only. But we are not here dealing with that kind of a catastrophe nor with the Price-Anderson Act. Hence, the silence of the Price-Anderson Act is not probative. The question here is whether the Atomic Energy Act, 42 U.S.C. § 2011, et seq., as construed in Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff’d Mem., 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972), impliedly preempts part of the Oklahoma common law remedy.
The state was precluded as a result of the decision in Northern States Power Co. from undertaking the scheme of regulation of atomic energy which was then being carried out by the N.R.C. pursuant to the Atomic Energy Act. It is one thing to preempt the area which the federal government has undertaken to license and regulate; it is another for a court to read into the Act an intent to preempt a form of damages which would otherwise be a part of an isolated private lawsuit. This conclusion is particularly apt where no evidence exists either on the face of the Act or otherwise of an implied purpose to so preempt by the Congress.1 Indeed, the fact that private lawsuits are tolerated without any limitations argues against the majority position.
The general approach to preemption of state authority is shown in Constitutional Law Cases and Materials by Professor Gerald Gunther (9th ed. 1975). Professor Gunther states:
When Congress exercises a granted power the federal legislation may displace state law under the supremacy clause of Article VI. But Congress does not typically act on a wholesale basis, and congressional entry into a field does not necessarily end all state authority, (emphasis added). Id. at 357.
What the author is saying is that preemption is not readily implied. Hart and Wechsler, The Federal Courts and the Federal System, 2nd ed. (1973) is cited as being in accord with this position. The authors state at pp. 470-471:
Federal law is generally interstitial in nature. It rarely occupies a legal field completely * * *. Federal legislation, on the whole, has been conceived and drafted on an ad hoc basis to accomplish limited objectives. It builds upon legal relationships established by the states, altering or supplanting them only so far as necessary for the special purpose. Congress acts, in short, against the background of the total corpus juris of the states in much the way that a state legislature acts against the background of the common law, assumed to govern unless changed by legislation.
Professor Gunther points out that the problem is one of statutory interpretation. He further states that:
[SJtate regulation falls not because of the commerce clause but because, under the supremacy clause of Art. VI, the “supreme” congressional law supersedes state law. Constitutional Law at 357.
He goes on to say that:
[Preemption occurs not only when there is an outright conflict between the federal scheme and the state requirement. State authority is barred as well when congressional action is an implicit barrier: when state regulation would interfere unduly with the accomplishment of congressional objectives. Determination of congressional requirements and purposes must start of course with the congressional statute itself, and the cases accordingly require a particularized examination of the specific regulatory scheme. Id.
In this case, unlike the other preemption cases, there are no competing regulatory schemes.
There is a shortage of case authority which even considers the issue as to whether a civil action or some phase of it (as in this ease) is subject to preemption under Article VI of the Constitution. Our search has uncovered a few decisions which have involved state suits. None of these have *928accepted preemption as being the dispositive formula.2
The Eighth Circuit’s opinion in Northern States Power Co. (affirmed by the Supreme Court) is a very sound opinion. By showing how the doctrine of preemption operates, it provides a contrast to this case and shows the inadequacy of the preemption showing here.
The Supreme Court’s decision in Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963) has some relevance in that it shows reluctance to exercise preemption. There a California statute
barred avocados which did not meet the state’s minimum oil content standard of maturity. Federal marketing orders issued pursuant to the Agricultural Adjustment Act gauged the maturity of Florida avocados by standards other than oil content.
Thus, the state was seeking to regulate the same subject matter which federal regulations addressed in seeking to solve the same problem. Notwithstanding the conflict the Supreme Court held:
that the supremacy clause did not prohibit California from excluding Florida avocados certified as mature under the federal regulations but which contained less than the minimum California oil content.
The majority opinion concluded that there was not an actual conflict between the two schemes of regulation and that both could live, one with the other. It was said in that case that there was no evidence of a congressional design to preempt the field; that there was no physical impossibility in complying with both standards. The maturity of avocados seemed to be an inherently unlikely candidate for exclusive federal regulation; the federal regulation there in issue which set minimum standards for agricultural commodities, even though comprehensive, did not in and of itself show implied displacement of state control over distribution and sale of those commodities in the interest of the consumers of the commodities within the state. The opinion finally said that the Court was unable to find an unambiguous congressional mandate to exclude state regulation. The federal law involved concerned minimum rather than uniform standards. The statutory scheme was one of regulating maturity, and was drafted and administered locally by the growers’ own representatives and was designed to do more than promote orderly competition among the South Florida grow*929ers. The dissenting opinion saw the federal scheme as a comprehensive regulatory program and the California scheme as identical in structure to the federal one. They said that the question was purely an economic one.
Why is the Florida Lime and Avocado Growers case helpful here? It shows the Supreme Court’s tendency to refrain from declaring implied preemption whereby a state law is displaced by a federal one.
All of the decided cases tend to reveal the inherent weakness on the preemption question of the majority position. A holding that preemption is present here is a gross infringement of state prerogatives as well as the rights of individual citizens.
* 5k * * * *
In the case before us, neither express preemption nor implied preemption is appropriate. Nor does the fact situation as a whole suggest applicability of the preemption doctrine. The simple reason is that it is not needed and would be superfluous.
IV
The Lack of Authoritative Cases in Support of Preemption as Here Presented
The majority seeks to support its preemption of punitive damages position with the decision in Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir.), aff’d mem. 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972). It also cites Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976), but does not emphasize that case. The majority opinion states that: “Imposing a state tort law rule of strict liability for nuclear-related property damage * * * might in some instances encroach upon federal regulations setting effluent or other standards.” Thus, it “might” encroach in some instances.
The above does not say that it does encroach. It merely speaks of possible encroachment; the majority does not say that encroachment is present. The majority concludes that imposition of tort liability in this case will significantly interfere with federal regulation. This latter conclusion suggests that preemption is to be decided on a case to case basis. Clearly it is not. The federal government has either preempted or it has not.
So far the majority is speaking of tort liability. It now turns to exemplary damages.
From the Northern States holding that the field of licensing and regulation has been preempted, it is contended that exemplary damages, due to their punishment aspect, cannot be awarded. But a tort action is a far cry from a regulatory system. The fact that Minnesota is precluded from this governmental activity falls short of dictating that exemplary damages have to be barred.
If a tort action does not interfere, the award of exemplary damages cannot impede federal government regulation. After all, the award of a large amount of actual damages can be equally punishing. It is the money which causes the suffering, not the designation.
The Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2284, preempts the field of nuclear licensing and regulation. But until now, no effort has been made to abolish damages in a private civil action. No collision exists nor is one possible between the simple state law inspired tort action and the federal government. To say that preemption prevents the imposition of exemplary damages in connection with a civil judgment carries the preemption concept far beyond anything that could have been intended or could ever be implied. The decision in the Northern States case was, as conceded by the majority, that Minnesota could not impose state licensing and regulation on Minnesota power plants in the face of a similar federal regulation scheme. This is unquestioned preemption.
Also in Northern States, it was made clear from a study of the congressional history that the intent of the Act was to preempt regulatory licensing authority. It was the licensing and regulation of more dangerous activities which was preempted *930by the federal government. The Joint Report of the Congress declared that it was intended to leave no room for the exercise of dual or current jurisdiction by states to control radiation hazards by regulating byproduct source or special nuclear materials. 447 F.2d at 1151.
The intent is to have the material regulated and licensed either by the Commission, or by the state and local governments, but not by both. The bill is intended to encourage states to increase their knowledge and capacities and to enter into agreements to assume regulatory responsibilities over such materials.
Thus, it was special hazards which the federal government retained for its responsibility. These included the construction and operation of production utilization facilities, including reactors. It was pointed out that:
Subsection k provides that nothing in the new section 274 shall be construed to affect the authority of any state or local agency to regulate activities for purposes other than protection against radiation hazards. This subsection is intended to make it clear that the bill does not impair the state authority to regulate activities of AEC licensees for the manifold health, safety and economic purposes other than radiation protection. As indicated elsewhere, the Commission has exclusive authority to regulate for protection against radiation hazards until such time as the state enters into an agreement with the Commission to assume such responsibility.
The analysis by the Northern court brings out the concern of the Congress as to possible dual federal-state control, a concern which could not exist here.
* * * * * *
In closing, I have some views regarding the large amount of the exemplary damages awarded by the jury. However, there is no need to consider this problem here at this time since the amount of reduction is not an issue. At the present writing, at least, the cause appears to be a lost one.
Finally, it is helpful to review some of the governing criteria. These are summarized by the Supreme Court in Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941). The state law there at issue required that certain aliens register as such and carry a card. The Supreme Court held that the subject of registration of aliens, because of its national and international nature, was preempted by the national government and that the power of the state was not concurrent.
The Court said in speaking of a formula: There is not — and from the very nature of the problem there cannot be — any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This court * * * has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. * * * In the final analysis, there can be no one crystal clear distinctly marked formula. Our primary function is to determine whether, under the circumstances * * * Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Id. at 67, 61 S.Ct. at 404.
Applying the Supreme Court’s test in Hines, the conclusion would certainly be that preemption does not apply in this case, nor do any of the other suggested expressions of Justice Black apply to our problem.
We conclude that there is no justification whatsoever based on precedent, history, policy or reason which justifies a holding that preemption applies to the present problem.
. The fact that Congress has expressly excepted the private tort action without restriction argues against any implied intent to preempt a part of such action.
. Bramer v. United States, 595 F.2d 1141 (9th Cir. 1979), a tort claims action by a serviceman for a radiation related injury. The Ninth Circuit found that preemption was not an issue except where Congress had expressly or impliedly provided for the supremacy of federal law. Id. at 1144, n. 7.
Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d 1389 (5th Cir. 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1255, 28 L.Ed.2d 546 (1971), was a wrongful death action arising out of a private airplane crash in Oklahoma. The Fifth Circuit ruled that a Federal Aviation Act agency provision did not preempt an Oklahoma bailment law. Congress held not to have expressly preempted the field; tort law said to have been historically left to the states. Id. at 1393-94. Oklahoma law found to preclude liability (on other grounds).
In Smith v. Cessna Aircraft Corp., 428 F.Supp. 1285 (N.D.Ill.1977), no preemption by federal law of state law in a plane crash case. Illinois had held that federal contribution laws preempted state law in a major aircrash case because of “the predominant, indeed almost exclusive, interest of the federal government in regulating affairs of the nation’s airways.” The court recognized that there was considerable congressional “opposition to interference with traditional state tort law.” 428 F.Supp. at 1287. It was concluded that the case presented no necessity for preemption by federal law.
Southern Pacific Transportation Co. v. United States, 462 F.Supp. 1193 (E.D.Cal.1978), a railroad suit against the United States for damages caused by a shipment of bombs. The railroad urged that state law was preempted because of federal regulations pertaining to the shipment of bulked goods on railroads. Held: no preemption, since many ICC regulations cited by the railroad had little or nothing to do with the accident. 462 F.Supp. 1223-27.
Harper and Row Publishers, Inc. v. Nation Enterprises, 501 F.Supp. 848 (S.D.N.Y.1980) was a copyright action. The court found there that the plaintiff’s state law claims were preempted by the federal Copyright Act. The case is noteworthy because it emphasizes the importance of a specific express declaration of preemption by Congress.