Cook v. Rockwell Intern. Corp.

• Citation: 755 F. Supp. 1468
• Decision Date: 13 February 1991
• Docket Number: Civ. A. No. 90-B-181.
• Parties: Merilyn COOK, William Jr. and Delores Schierkolk, Richard and Sally Bartlett and Lorren and Gertrude Babb, Bank Western, a federal savings bank, a federally chartered savings bank, and Field Savings Corporation, a Colorado corporation, on their own behalf and as representatives of a class of persons and entities suffering economic harm; and Michael Dean Rice, Thomas L. and Rhonda J. Deimer, and Stephen M. and Peggy J. Sandoval, on their own behalf and as representative of a class of similarly situated residents and workers, Plaintiffs, v. ROCKWELL INTERNATIONAL CORPORATION, a Delaware corporation, and The Dow Chemical Company, a Delaware corporation, Defendants.
• Court: U.S. District Court — District of Colorado

755 F. Supp. 1468

Merilyn COOK, William Jr. and Delores Schierkolk, Richard and Sally Bartlett and Lorren and Gertrude Babb, Bank Western, a federal savings bank, a federally chartered savings bank, and Field Savings Corporation, a Colorado corporation, on their own behalf and as representatives of a class of persons and entities suffering economic harm; and Michael Dean Rice, Thomas L. and Rhonda J. Deimer, and Stephen M. and Peggy J. Sandoval, on their own behalf and as representative of a class of similarly situated residents and workers, Plaintiffs, v. ROCKWELL INTERNATIONAL CORPORATION, a Delaware corporation, and The Dow Chemical Company, a Delaware corporation, Defendants.

Civ. A. No. 90-B-181.

United States District Court, D. Colorado.

February 13, 1991.

COPYRIGHT MATERIAL OMITTED

Bruce H. DeBoskey, Steven W. Kelly, Silver & DeBoskey, P.C., Denver, Colo., Ronald Simon, David Elbaor, Richard J. Fiesta, Connerton, Ray and Simon, Washington, D.C., Merrill Davidoff, Berger & Montague, P.C., Philadelphia, Pa., Robert Golten, Fredericks & Pelcyger, Boulder, Colo., Stanley M. Chesley, Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, Ohio, for plaintiffs.

Joseph J. Bronesky, Christopher Lane, Sherman & Howard, Denver, Colo., John D. Aldock, James R. Bird, Michael S. Giannotto, Shea & Gardner, Washington, D.C., for Rockwell Intern. Corp.

Mark S. Lillie, John A. DeSisto, Kirkland & Ellis, Denver, Colo., David M. Bernick, Kevin T. Van Wart, Kirkland & Ellis, Chicago, Ill., for Dow Chemical Corp.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Plaintiffs are individuals and businesses who own land near the Rocky Flats Nuclear Weapons Plant (Rocky Flats). They sue on their own behalf and as representatives of a class of others similarly situated. No class certification has issued.

Rocky Flats is owned by the United States and operates under the jurisdiction of the U.S. Department of Energy (DOE). Under a series of management contracts with the Atomic Energy Commission and later with the DOE, defendant Dow Chemical Company (Dow) operated the plant from 1951 through June 1975. Defendant Rockwell International Corporation (Rockwell) similarly operated the plant from July 1975 until December 31, 1989. Plaintiffs allege that they have incurred injury and damages caused by releases or threatened releases of hazardous substances from Rocky Flats.

There are three types of causes of action alleged. First, plaintiffs seek to recover "response costs" under section 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9607. Second, plaintiffs seek damages under the Price Anderson Act, 42 U.S.C. §§ 2211-2284. Third, they seek damages under Colorado common law based on diversity jurisdiction.

Price Anderson borrows the substantive law of the state in which an alleged nuclear incident took place, which here is Colorado. See 42 U.S.C. § 2014(hh). Accordingly, the claims under Price Anderson and under Colorado common law are identical: negligence; strict liability; private nuisance; trespass; misrepresentation and concealment; outrageous conduct; and punitive damages.

I. SUMMARY OF RULINGS

Before me are numerous motions to dismiss or for summary judgment filed by Dow and Rockwell and various motions by plaintiffs to amend. I hold that: (1) the portion of plaintiffs' CERCLA claim that seeks costs incurred after judgment in this case fails to state a claim upon which relief may be granted; (2) the portion of plaintiffs' CERCLA claim that seeks to recover the prejudgment costs of medical testing to monitor the health effects of defendants' alleged releases of hazardous substances fails to state a claim upon which relief may be granted; however, the portion of plaintiffs' CERCLA claim that seeks to recover the prejudgment costs of medical testing necessary to monitor the environmental effects of defendants' alleged releases is cognizable; (3) plaintiffs' CERCLA claim is deficient for failure to plead at least one cognizable response cost incurred before this action was filed by each named plaintiff who is asserting a CERCLA claim, but they should be granted leave to amend; (4) plaintiffs' Price Anderson and Colorado common law claim for individualized medical monitoring is cognizable but deficient for failure to adequately plead exposure to a hazardous substance; plaintiffs should be granted leave to amend; (5) plaintiffs' Price Anderson and Colorado common law claim for general scientific studies is not cognizable and fails to state a claim upon which relief may be granted; (6) plaintiffs' claim for outrageous conduct is cognizable but deficient for failure to plead adequately the elements of severe emotional distress and requisite intent; plaintiffs should be granted leave to amend; (7) plaintiffs' claim for misrepresentation and concealment is fatally defective because they can prove no set of facts that would entitle them to relief and any effort to amend would be futile; (8) genuine questions of material fact exist whether plaintiffs may be entitled to punitive damages arising out of nuclear incidents occurring before August 20, 1988 and I cannot say that plaintiffs are entitled to judgment as a matter of law as to these incidents; (9) as to nuclear incidents occurring on or after August 20, 1988, no genuine issues of material fact remain for resolution and defendants are entitled to judgment on plaintiffs' claim for punitive damages as a matter of law; (10) genuine issues of material fact remain whether plaintiffs' actions against Dow are barred by the applicable statute of limitations; (11) injunctive relief to prevent Rockwell's "further releases of plutonium and radioactive and non-radioactive substances for Rocky Flats" would be ineffectual, and thus, Rockwell's motion to dismiss this claim should be granted; (12) defendants' motions for summary judgment on plaintiffs' claims for a fund to finance future scientific studies are made moot by my dismissal of these claims.

II. LEGAL STANDARD

For the purposes of a motion to dismiss, I accept all factual allegations as true and resolve all reasonable inferences in favor of the plaintiff. Tri-Crown, Inc. v. American Federal Sav. & Loan, Ass'n, 908 F.2d 578, 582 (10th Cir.1990). "A case should not be dismissed for failure to state a claim unless the court determines beyond doubt that the plaintiff can prove no set of facts which entitle him to relief." Id.

In deciding a motion for summary judgment the evidence and any possible inferences are viewed in the light most favorable to the party opposing summary judgment. Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th Cir.1990). Summary judgment is appropriate if there is no genuine issue of material fact and the movant is entitle to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

III. DISCUSSION

A. CERCLA

Plaintiffs allege that defendants violated section 107(a) of CERCLA, 42 U.S.C. § 9607(a). CERCLA was designed to facilitate cleanup of environmental contamination caused by releases of hazardous substances. Colorado v. Idarado Mining Co., 916 F.2d 1486, 1488 (10th Cir.1990). To promote this aim, Congress created a private cause of action where certain "response costs" could be recovered against those who contributed to dumping hazardous waste at a site. 42 U.S.C. § 9607(a); Idarado, 916 F.2d at 1488.

To state a claim under section 9607(a), a plaintiff must allege that: (1) the waste disposal site is a "facility" as defined by 42 U.S.C. § 9601(9); (2) a "release" or "threatened release" of any "hazardous substance" has occurred, § 9607(a)(4); and (3) such "release" or "threatened release" has caused the plaintiff to incur response costs that are consistent with the national contingency plan, §§ 9607(a)(4) & (a)(4)(B). See Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir.1989). In addition, the defendant must fall within one of the classes of persons subject to CERCLA's liability provision. § 9607(a)(1)-(4).

In this case, plaintiffs have sued past operators of a facility under section 9607(a)(1). Plaintiffs seek "response costs incurred by plaintiffs pursuant to CERCLA, including the creation of a fund to finance independent scientific studies of exposure to hazardous substances...." Amended Complaint, Prayer For Relief ¶ d.

Defendants argue that the CERCLA claim should be dismissed in whole or in part because: (1) the costs of post-judgment studies are not recoverable under CERCLA; (2) medical monitoring costs are not available under CERCLA; and (3) plaintiffs have failed to plead a cognizable response cost incurred prior to filing this suit.

I hold that the costs of post-judgment studies are not available under CERCLA and grant defendants' motions to dismiss the portion of the complaint that seeks such relief. I also grant defendants' motions to dismiss the portion of plaintiffs' CERCLA claim that seeks to recover the costs of medical testing to monitor the health effects of defendants' releases. However, I deny defendants' motions concerning the portion of plaintiffs' CERCLA claim that seeks to recover the costs of medical testing necessary to monitor the environmental effects of defendants' releases. Finally, I conclude that plaintiffs' CERCLA claim is deficient for failure to plead at least one cognizable response cost incurred before this action was filed by each named plaintiff who is asserting a CERCLA claim, but they should be granted leave to amend.

Defendants argue that the CERCLA claim should be dismissed because post-judgment costs are not recoverable under CERCLA. As plaintiffs acknowledge, CERCLA allows recovery only of costs that have been incurred by a plaintiff...