McGlone v. Centrus Energy Corp.

• Decision Date: 31 July 2020
• Docket Number: Case No. 2:19-cv-02196
• Parties: URSULA MCGLONE, et al., Plaintiffs, v. CENTRUS ENERGY CORPORATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

URSULA MCGLONE, et al., Plaintiffs, v. CENTRUS ENERGY CORPORATION, et al., Defendants.

Case No. 2:19-cv-02196

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

July 31, 2020

JUDGE ALGENON L. MARBLEY

Magistrate Judge Deavers

OPINION & ORDER

I. INTRODUCTION

This matter is before the Court on Defendants Centrus Energy Corporation; United States Enrichment Corporation; Uranium Disposition Services, LLC; BWXT Conversion Services, LLC; Mid-America Conversion Services; Bechtel Jacobs Company, LLC; LATA/Parallax Portsmouth, LLC; and Fluor-BWXT Portsmouth, LLC's Motion to Dismiss. Doc. 83. Due to the suspension of in-court proceedings as a result of the COVID-19 pandemic, the Court will resolve this Motion on the briefs and without oral argument. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion [#83].

II. BACKGROUND

Plaintiffs Ursula McGlone, Jason McGlone, Julia Dunham, Brittani Rider, and Adam Rider, proceeding on behalf of themselves, their minor children, and all others similarly situated, initiated this civil action on May 26, 2019, alleging that they were injured when uranium radiation was released onto their property from the Portsmouth Gaseous Diffusion Plant (the "Plant") in Pike County, Ohio.

From 1954 to 2001, the Plant produced enriched uranium to support the United States' nuclear weapons program and to support commercial nuclear reactors. Beginning in 1989, and continuing today, there have been ongoing efforts to clean up the environmental harm caused by uranium production at the Plant. This remediation was undertaken, in part, pursuant to a Consent Decree overseen by the Ohio EPA. Each of the Defendants in this case was, at some point between 1993 and present day, responsible for at least one of the following activities at the Plant: uranium enrichment operations; depleted uranium hexafluoride conversion; or environmental remediation.

The Plaintiffs in this case all own property located within five miles of the Plant. Plaintiffs contend that their properties have been impacted by or are within the zone impacted by the release of radioactive and toxic materials from the Plant. Plaintiffs have thus filed this lawsuit raising 15 claims:

1) Count One: Violation of the Price-Anderson Act;

2) Count Two: Violation of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA);

3) Count Three (A): Declaratory Judgment as to Class Rights and Status;

4) Count Four (A): Negligence/Gross Negligence;

5) Count Four (B): Trespass;

6) Count Four (C): Nuisance;

7) Count Four (D): Ultra-Hazardous Activity/Absolute Liability/Strict Liability;

8) Count Four (E): Injunctive and Equitable Relief of Medical Monitoring;

9) Alternative Count One (A): Negligence/Gross Negligence;

10) Alternative Count One (B): Trespass;

11) Alternative Count One (C): Nuisance12) Alternative Count One (D): Ultra-Hazardous Activity/Absolute Liability/Strict Liability;

13) Alternative Count One (E): Injunctive and Equitable Relief of Medical Monitoring;

14) Alternative Count Three (B): Declaratory Judgment of Due Process Protection of State Law Claims; and

15) Alternative Count Three (C): Declaratory Judgment of Unconstitutionality of PAA 100 MREM Standard.¹

Doc. 78. Defendants now move to dismiss Plaintiffs' Complaint for a failure to state a claim upon which relief can be granted.

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint for a failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, "the plaintiff must allege facts that, if accepted as true, are sufficient to raise a right to relief above the speculative level and to state a claim to relief that is plausible on its face." Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)) (internal quotations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). And although the court "must accept all well-pleaded factualallegations in the complaint as true," the court "need not accept as true a legal conclusion couched as a factual allegation." Id. (quoting Twombly, 550 U.S. at 555) (internal quotations omitted).

IV. ANALYSIS

Defendants move to dismiss Plaintiffs' Complaint for a failure to state a claim upon which relief can be granted. Defendants advance several arguments. The Court will address each of these arguments, in turn, below.

A. Price-Anderson Act Claim (Count One)

First, Defendants contend that Plaintiffs have not stated a cognizable claim under the Price-Anderson Act because: (1) Plaintiffs fail to allege that they or their properties have been exposed to radiation above the federal numerical dose limits; (2) Plaintiffs fail to allege that the actions of any one Defendant caused their injuries; and (3) Plaintiffs fail to allege a compensable injury. Because Defendants' first argument is dispositive of the issue, the Court need not address arguments two or three.

Congress enacted the Price-Anderson Act in 1957 as an amendment to the Atomic Energy Act "to encourage private sector investment in development of nuclear power by limiting the liability of private owners and operators in the event of a nuclear incident." Nieman v. NLO, Inc., 108 F.3d 1546, 1549 (6th Cir. 1997) (Day v. NLO, Inc., 3 F.3d 153, 154 n.1 (6th Cir. 1993)). "The Act requires private owners and operators 'to purchase a specified amount of insurance, and damage awards over and above that amount are then indemnified by the government.'" Id. (quoting Day, 3 F. 3d at 154 n.1). "In 1988, Congress enacted the Price-Anderson Amendments Act of 1988, which explicitly created a federal cause of action for 'public liability actions' that arise from nuclear incidents." Id.

A public liability action is defined as "any legal liability arising out of or resulting from a 'nuclear incident.'" Id. at 1550. A nuclear incident, in turn, is "any occurrence, including an extraordinary nuclear occurrence, within the United States causing, within or outside the United States, bodily injury, sickness, disease, death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material." Id. (quoting 42 U.S.C. § 2014(q)). To prevail on a claim under the Price-Anderson Act, Plaintiffs must establish four elements: (1) Defendants released radiation into the environment in excess of federal regulatory limits; (2) Plaintiffs were exposed to this radiation; (3) Plaintiffs have injuries; and (4) radiation was the cause of those injuries. See In re TMI, 67 F.3d 1103, 1119 (3d Cir. 1995). The federal regulatory limits applicable to this case can be found in 10 C.F.R. § 1301.² See Adkins v. Chevron Corp., 960 F. Supp. 2d 761, 769 (E.D. Tenn. 2012) ("The permissible dose limits are found at 10 C.F.R. § 20.1301."); TNS, Inc. v. N.L.R.B., 296 F.3d 384, 398 (6th Cir. 2002) ("[T]he Sixth Circuit has joined with almost every other circuit in holding that NRC safety regulations conclusively establishthe duty of care owed by defendants in radiation safety personal injury cases governed by the 1998 amendments to the Price-Anderson Act.").

Here, Defendants argue, among other things, that Plaintiffs' Complaint must be dismissed because they were required, but failed, to allege that they or their properties have been exposed to radiation above the federal regulatory limits. In response, Plaintiffs argue that they were only required to allege that Defendants released radiation in excess of federal regulatory limits, not that they were exposed to radiation in excess of these limits.

While there is some support for Plaintiffs' position, the cases reaching this conclusion have done so based on the interpretation of federal regulations that have now been superseded by 10 C.F.R. § 20.1301. See In re TMI 67 F.3d at 1116 ("The language of §§ 20.105 and 20.106, which regulate off-site radiation exposures, does not suggest that a breach occurs only when persons are exposed to excessive radiation. Instead, the regulations provide that a breach occurs whenever excessive radiation is released, whether or not anyone is present in the area exposed."); McClurg v. Mallinckrodt, Inc., 2017 WL 2929444, at *6 (E.D. Mo. July 7, 2017) ("The Court agrees with the Third Circuit that this language [in §§ 20.105 and 20.106] does not suggest that a breach occurs only when the persons are exposed to excessive radiation. Instead, the regulations provide that a breach occurs whenever excessive radiation is released, whether or not anyone is present in the area exposed.") (internal quotations omitted). In 1991, §§ 20.105 and 20.106 were replaced by § 20.1301 "to reflect changes in the basic philosophy of radiation protection." Good v. Fluor Daniel Corp., 222 F. Supp. 2d 1236, 1248 (E.D. Wash. 2002). Now, "[r]ather than bar release of radiation above a certain amount, the regulations bar exposure above a specified amount." Id. (citing 10 C.F.R. § 20.1301 (requiring licensees to conduct operations so that "[t]he total effective dose equivalent to individual members of the public from the licensed operation does not exceed 0.1rems (1 millisievert) in a year")); see Adkins, 960 F. Supp. 2d at 771 ("District court decisions are just as overwhelming on the issue of whether an essential element of a public liability action is that the plaintiff's exposure exceeded the federal dose limits.").

Here, Plaintiffs' Complaint fails to allege that they or their properties have been exposed to radiation in excess of the limits prescribed in § 20.1301. Instead, Plaintiffs allege:

• Jason and

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