In late July 2020, the United States District Court for the Southern District of Ohio granted in part and denied in part defendants’ motion to dismiss in a case involving releases of uranium radiation and other non-radioactive waste onto plaintiffs’ property. See Op. and Order, McGlone v. Centrus Energy Corp., et al., Case No. 2:19-cv-02196 (S.D. Ohio, July 31, 2020). Claims involving the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Price-Anderson Act and were dismissed for failing to state a claim, while most state law tort claims for releases of non-radioactive waste were permitted to move forward, the court clarifying that medical monitoring exists as a form of damages under Ohio law and not as a separate claim.

In a complaint filed in 2019, plaintiffs alleged that their properties (all located within five miles of the facility at issue) were impacted by releases of radioactive and toxic materials from an enriched uranium plant which had been in operation from 1954 to 2001. According to the complaint, all of the subject properties have either “tested positive for contamination or are in the zone of contamination.” Id. at 7. Whether that allegation was sufficient grounds upon which plaintiffs could state a claim depended on the specific statute or common law principle at issue.

1.  CERCLA

While the court agreed that plaintiffs had met their minimal burden at the pleading stage that defendants were Potentially Responsible Parties under CERCLA, the claim ultimately failed because plaintiffs did not allege that they had incurred necessary response costs, an essential element to a claim under CERCLA. The court went further, however, and held that even if plaintiffs were to have adequately alleged the necessary response costs, the CERCLA claims were time barred.

 a.  Necessary Response Costs

To have a cognizable claim under CERCLA, plaintiffs must have incurred necessary response costs under the National Contingency Plan. Necessary response costs are those which are incurred in response to a threat to human health or the environment. The damages alleged by plaintiffs were attorney fees, expert witness fees, damages to natural resources, health assessments, and investigation and sampling costs. The court held that none of the alleged damages represented necessary response costs (and emphasized that there was no private right to natural resource damages under CERCLA) and dismissed the claim.

 b.  Statute of Limitations

The court noted that the lack of necessary response costs alleged by the plaintiffs made an analysis of defendants’ statute of limitations argument superfluous.  However, the court proceeded to examine the issue and found that the claims were time barred, representing an independent reason to dismiss the CERCLA claim.

In analyzing the limitations issue, the opinion discussed the difference between a CERCLA removal action, which has a 3-year statute of limitations and a CERCLA remedial action, which has a 6-year statute of limitations, as well as the triggering events for both. Removal actions under CERCLA have been characterized as those that are designed to prevent imminent harm to human health or the environment. Remedial actions, on the other hand, are those “consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment” 42 U.S.C. § 9601(24). Further, “a response action may constitute both a removal and a remedial action, and a court is not constrained to find either term applicable at the expense of the other.” Id. at 23 (citing Cytec Indus., Inc. v. B.F. Goodrich Co., 232 F. Supp. 2d 821, 833 (S.D. Ohio 2002).

The court noted that although there could be some overlap between the two types of actions, environmental cleanup activities conducted at the plant were more accurately categorized as long-term, permanent remedial actions carrying a 6-year limitations period. Plaintiffs argued that the environmental cleanup activities at the site could not be characterized as remedial actions until a final “selected remedy” was issued by the Department of Energy (“DOE”). Plaintiffs argued that because DOE did not issue its final decision on the selected remedy for the site until 2015, the limitations period had not yet lapsed when the complaint was filed in 2019. The court disagreed with this argument, however, noting that it was not supported by the statute, and that “[s]uch a rule would ‘lead to the absurd result that actions brought by private parties to recover response costs in which no governmental agency was involved in the cleanup could never be classified as remedial actions because no lead agency would ever issue a final plan for the permanent remedy.’” Id. at 24 (citing Am. Premier Underwriters, Inc. v. Gen. Elec. Co., 866 F. Supp. 2d 883, 892 (S.D. Ohio 2012).

The court sided with defendants in determining that long-term permanent actions taken at the site prior to the DOE decision could constitute a remedial action and that “it is critical to view the timing of the activity in the larger context of all the activity taking place with regards to the site.” Id. at 25 (citing Am. Premier Underwriters, Inc., 866 F. Supp. 2d at 899). It was the court’s opinion that, on balance, actions conducted at the site were of a permanent nature, and that the limitations period commenced in 1989 with the start of environmental cleanup activities conducted pursuant to the Consent Decree signed that year. The court found, therefore, that the claim was time barred.

2.  Price-Anderson Act

The court also granted defendants’ motion to dismiss for claims arising under the Price-Anderson Act because the complaint did not plead facts that, if true, would establish the required elements of the claim. The court dismissed the claims because it found that plaintiffs did not establish that “they or their properties were exposed to radiation in excess of federal limits.” Id. at 7 (emphasis added). Plaintiffs also brought alternative claims regarding injuries caused by radioactive waste under Ohio state law, but the court found that the Price-Anderson Act preempts any state law claims arising from a “nuclear incident,” and dismissed those claims as well.

3.  State Law Tort Claims (non-radioactive waste)

While claims brought under the Price-Anderson Act failed because plaintiffs did not allege that their properties were exposed to radiation in excess of federal limits, plaintiffs’ claims for damages from non-radioactive waste under Ohio state law were not dismissed because those claims require a lesser degree of specificity at the pleadings stage.

Plaintiffs used reports from DOE, NIOSH, and EPA to state that the plant released depleted uranium, neptunium, plutonium, cesium, thorium, radium, toxic materials and other contaminants into the water, air, and soil; and asserted that the deposition of those particles onto their properties constituted a trespass. Plaintiffs also used cancer rate data for the area to back up their claim that they have likely incurred physical damage, which the court found was sufficiently detailed at this stage. The court used the same general reasoning to permit claims for nuisance, negligence, and ultra-hazardous activity to move forward as well. The court dismissed the claim for medical monitoring however because, under Ohio state law, medical monitoring is not an independent cause of action, rather, it is a “form of damages for an underlying tort claim.” Id. at 31 (citing Elmer v. S.H. Bell, 127 F. Supp. 3d 812, 825 (N.D. Ohio 2015)). The court opined that “if Plaintiffs establish liability and an increased risk of disease on an underlying tort claim, they may be entitled to medical monitoring as a remedy,” so at this point, the plaintiffs’ desired outcome on that front is still viable. See id.

The opinion in this case highlights the importance of bringing claims with the appropriate level of specificity for the claim asserted. It also demonstrates that it can be an effective strategy for defense counsel to raise all possible defenses at an early stage and trim the litigation as quickly as possible.

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