Bohrmann v. Maine Yankee Atomic Power Co., Civil No. 95-359-P-C.

• Decision Date: 01 May 1996
• Docket Number: Civil No. 95-359-P-C.
• Citation: 926 F. Supp. 211
• Parties: Erich BOHRMANN, Andrew Daniels, Jeffrey Gagnon, Nevena Novkovic, and Eric Ortman, Plaintiffs, v. MAINE YANKEE ATOMIC POWER COMPANY, Defendant.
• Court: U.S. District Court — District of Maine

926 F. Supp. 211

Erich BOHRMANN, Andrew Daniels, Jeffrey Gagnon, Nevena Novkovic, and Eric Ortman, Plaintiffs, v. MAINE YANKEE ATOMIC POWER COMPANY, Defendant.

Civil No. 95-359-P-C.

United States District Court, D. Maine.

May 1, 1996.

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Jeffrey A. Thaler, Berman & Simmons, P.A., Lewiston, Maine, for Plaintiffs.

William J. Kayatta, Jr., Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Maine, for Defendant.

MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

GENE CARTER, Chief Judge.

Plaintiffs, several University of Southern Maine students, have filed the present action against Maine Yankee Atomic Power Company ("Maine Yankee") for injuries they allegedly sustained after being exposed to radiation when touring Defendant's nuclear power plant in Wiscasset, Maine. Plaintiffs seek recovery pursuant to theories of common law negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, strict liability, fraud, battery, failure to meet State safety reporting requirements pursuant to 35-A M.R.S.A. § 4334(1)(A), and federal public liability pursuant to the Atomic Energy Act. This matter comes before the Court on Defendant's Motion to Dismiss (Docket No. 4).

I. ALLEGED FACTS

The facts alleged in the Complaint are as follows. Plaintiffs are five University of Southern Maine students who were among a group of chemistry students invited to tour Defendant's facility. Complaint and Demand for Jury Trial (Docket No. 1) ¶¶ 12, 13. Plaintiffs allege that approximately two weeks before their tour, there was a radioactive gas leak in Defendant's primary auxiliary building (PAB) as a result of design flaws and faulty engineering when Defendant "sluiced the demineralizers in its Chemical and Volume Control System." Id. ¶ 11. The students toured Maine Yankee on the morning of October 11, 1994, at which time, Defendant allegedly was in the process of repairing the leakage problem. Id. ¶¶ 1, 11, 13, 14, 15. Plaintiffs claim that "Maine Yankee officials had decided to flush out resin `hot spots' in the demineralizer" and scheduled the procedure to occur during Plaintiffs' tour. Id. ¶ 15. Plaintiffs further allege that the officials were aware that the flushing procedure would release radioactive gases. Id. Plaintiffs claim that they were never apprised of the problems at Defendant's facility. Id. ¶¶ 16, 19.

Plaintiffs allege that each student was given a pocket-sized Self-Reading Dosimeter, which measures only gamma radiation. Id. ¶ 17. The students were not provided with Thermo-Luminescent Dosimeters, which also measure beta radiation and which are worn by the employees of Defendant. Id. ¶ 17.

Plaintiffs claim that despite his being warned that radioactive gases would be released in the PAB, the lead tour guide led the students into the "hot" side of the plant. Id. ¶¶ 18, 20. Plaintiffs allege that the tour guides knowingly took the students through a plume of unfiltered radioactive gases. Id. ¶¶ 35, 46. While the students were walking through the radioactive gases, the continuous air monitor in the PAB was sounding an alarm. Id. ¶ 35. After spending thirty to forty minutes on the "hot" side of the plant, the students returned to the "hot" side's entry point and stepped into portal monitors. Id. ¶ 23. Plaintiffs and the tour guides allegedly "alarmed out," indicating that they had all been exposed to excessive radioactive contamination from the tour. Id. ¶¶ 23, 24. In fact, Plaintiffs Bohrmann and Ortman continued to "alarm out" up to twenty minutes after they left the PAB. Id. ¶ 25.

Plaintiffs allege that Maine Yankee employees never suggested that the students remove their contaminated clothing or that the students take a shower and wash themselves. Id. ¶ 25. Two hours after the exposure to radioactive gases, Defendant told a few students that they needed to go for a "whole body count" to assess their radiation exposure. Id. ¶ 27. Plaintiff Gagnon allegedly was told that he had nothing to worry about and was not told to undergo a whole body count. Id. ¶ 27. Plaintiffs claim that Maine Yankee employees falsely told them that they had not been subjected to gamma radiation and that only gamma radiation was "bad." Id. ¶ 28. Defendant's employees allegedly told Plaintiffs that they had not been exposed to anything that would pose a health risk. Id. ¶ 29.

Plaintiffs assert that Defendant did not promptly or accurately determine the radiation dose to which they had been subjected. Id. ¶ 39. Although urinalyses were done for the tour guides to determine possible inhalation of Strontium 89, Defendant did not offer to conduct such tests on Plaintiffs. Id. ¶ 39. Plaintiffs allege that Defendant belatedly used a whole body counter on a few of the students, but the device was not properly programmed to provide accurate readings. Id. ¶ 39. Defendant allegedly failed to calculate accurately the dose exposure for the students because Defendant's readings of exposure amounts were at least thirty to forty percent too low. Id. ¶¶ 39, 46. It is not known how much radioactive gas each student inhaled. Id. ¶ 47.

Plaintiffs assert that Defendant deliberately failed to report the contamination of Plaintiffs and the tour guides to the Nuclear Regulatory Commission or the State Nuclear Safety Inspector until after the contamination was reported in the media several days later. Id. ¶ 30. Plaintiffs allegedly did not become aware of the extent of their exposure until they read a newspaper report of the incident later that week. Id. ¶ 29. Defendant allegedly destroyed the charts showing the level of radioactive gases in the PAB soon after October 11, 1994. Id. ¶ 40. Plaintiffs assert that such destruction makes it impossible to quantify the release of radiation to which they had been exposed and allegedly constitutes a violation of federal regulations mandating the retention of the records. Id. ¶¶ 40, 44.

Plaintiff Bohrmann claims to have suffered a significant decrease in his white blood cell count. Id. ¶ 49. In addition, Plaintiffs allege that they live with "the significant distress and uncertainty caused by exposure to unreasonably high levels of nuclear radiation." Id. ¶ 50. Plaintiffs now seek compensatory and punitive damages.

II. STANDARD FOR MOTION TO DISMISS

In entertaining this Motion to Dismiss, the Court assumes that all the factual allegations set forth in the Complaint are true and draws all reasonable inferences in favor of Plaintiffs. Resolution Trust Corp. v. Driscoll, 985 F.2d 44, 48 (1st Cir.1993). The Court, however, need not accept legal conclusions or bald assertions. Id. "Further, the Complaint should not be dismissed unless it appears beyond doubt that Plaintiffs can prove no set of facts which would entitle them to relief." Wyman v. Prime Discount Sec., 819 F.Supp. 79, 81 (D.Me.1993).

III. DISCUSSION

A. The Federal Public Liability Action

Defendant first contends that a federal public liability action pursuant to the Price-Anderson Amendments Act of 1988 the Amendments Act provides the exclusive cause of action by which a plaintiff may recover for exposure to radiation associated with a licensed nuclear power facility. Defendant, therefore, contends that Plaintiffs' claims asserting state law theories of recovery should be dismissed.

In 1957, the original Price-Anderson Act was enacted as an amendment to the Atomic Energy Act of 1954. Prior to 1988, the Price-Anderson Act did not preclude a suit against a federally licensed nuclear facility in state court pursuant to state common law. For example, in Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), a federally licensed power plant was sued in a diversity action pursuant to common law tort principles under Oklahoma law.¹ In addition, the Court of Appeals for the Third Circuit concluded that there was no federal tort cause of action pursuant to the Price-Anderson Act and that the Act did not confer jurisdiction upon the federal courts. Kiick v. Metropolitan Edison Co., 784 F.2d 490, 493 (3d Cir.1986); Stibitz v. General Pub. Utils. Corp., 746 F.2d 993, 997 (3d Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985).

Congress subsequently enacted the Amendments Act in 1988, and in doing so, "the entire Price-Anderson landscape was transformed." In re TMI Litig. Cases Consol. II, 940 F.2d 832, 857 (3d Cir.1991), cert. denied, 503 U.S. 906, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992). In fact, the Amendments Act changed the law from the way it existed as applied in Silkwood, Kiick, and Stibitz. The Amendments Act conferred jurisdiction on federal courts over any public liability action arising from a nuclear incident. 42 U.S.C. § 2210(n)(2). A "public liability action" is defined as any suit asserting liability arising out of any occurrence causing bodily injury, sickness, or disease resulting from the radioactive, toxic, explosive, or other hazardous properties of radioactive materials. See id. §§ 2014(e), (q), (w), (z), (aa), (hh) (setting forth interconnected definitions of "public liability action," "public liability," "nuclear incident," "source material," "special nuclear material," and "byproduct material").² Furthermore, the Amendments Act provide that "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." Id. § 2014(hh).

Courts have interpreted the Amendments Act's authorization of the public liability action in federal court to have supplanted the use of an independent state law cause of action for suits against federally licensed nuclear facilities seeking recovery for exposure to radiation. O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1099-1100 (7th Cir.), cert. denied, ____ U.S. ____, 114 S.Ct. 2711, ...