Smith v. Carbide and Chemicals Corp.
| Decision Date | 02 November 2007 |
| Docket Number | No. 04-5323.,04-5323. |
| Citation | 507 F.3d 372 |
| Parties | Warren SMITH, Glenda and Jack Wray, Ronald and Doris Lamb, Ronnie and Teresa Wray, Ernest Ray and Ruby English, Herman L. and Paula Henley, Jewell G. and Ruth Warford, John and Robin Colson, Charles R. and Natilie M. Robertson, Steve Bartholomew, Thomas Foster Stone, Benny Frank Heady, Eugene and Helen Henley, Leon and Deena Hoskins, Ken Jerrell, Elaine I. Tilford, Reda Feezor, Thomas L. Anderson, and Weda Flowers, Plaintiffs-Appellants, v. CARBIDE AND CHEMICALS CORP., Union Carbide Corp., Martin Marietta Energy System, Inc., Martin Marietta Utility Services, Inc., Lockheed Martin Utility Services, and Lockheed Martin Energy Systems, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
& Morgan, Knoxville, Tennessee, for Appellees.
Before: MARTIN and GILMAN, Circuit Judges; COHN, District Judge.*
This is an environmental case. Plaintiffs-Appellants Warren Smith, et al. (collectively referred to as Appellants), appeal the district court's grant of summary judgment for Defendants-Appellees Carbide and Chemicals Corp., et al. (collectively referred to as Appellees). Appellants brought claims for intentional trespass, permanent private nuisance, and strict liability based on contamination caused by imperceptible particles, claiming harm to their real property. After briefing and oral argument, we determined that Kentucky law was unsettled regarding a claim of intentional trespass. Accordingly, we certified the following questions to the Kentucky Supreme Court:
1. Is proof of actual harm required to state a claim for an intentional trespass?
2. If the plaintiffs can prove a diminution in their property values due to an intentional trespass, do they have a right of recovery under Kentucky law?
The Kentucky Supreme Court answered the first question "No." The answer to the second question, as will be explained, requires that the district court's decision granting summary judgment on Appellants' intentional trespass claim be REVERSED because a factual dispute exists as to whether Appellants suffered actual injury. As to Appellants' nuisance and strict liability claims, we also find that there are genuine issues of material fact and therefore REVERSE the district court's grant of summary judgment on these claims.
The Paducah Gaseous Diffusion Plant (PGDP) is a government-owned, contractor-operated uranium enrichment facility located in McCracken County, Kentucky, approximately ten miles west of Paducah, on 3,425 acres, 750 of which are within a security fence. Although there is no single exhibit in the record that accurately details the PGDP boundaries or the Appellants' properties in relation to the plant boundaries, there is a schematic which provides a general overview. See J.A. at 380.
PGDP is the only operating uranium enrichment facility in the United States.1 The plant was designed to "enrich" natural and recycled uranium for use in domestic and foreign commercial power reactors. The plant was constructed in the early 1950s and its operations began in 1952. Over its more than 50-year operating lifetime, the plant has enriched more than one million tons of uranium.
Defendant-Appellee Carbide and Chemicals Corporation (now Union Carbide Corporation) was the original site contractor and operated the plant for the Atomic Energy Commission from the beginning of operations in 1952 until March 31, 1984. Defendant-Appellee Lockheed Martin Energy Systems, Inc. (formerly Martin Marietta Energy Systems, Inc.) replaced Carbide and Chemicals Corporation as the operating contractor effective April 1, 1984, and continued its operations until June 30, 1993. The Energy Policy Act of 1992 created the United States Enrichment Corporation (USEC), one of the first steps in the process of privatizing the government's uranium enrichment enterprises. On July 1, 1993, USEC leased portions of PGDP from the Department of Energy, assumed responsibility for uranium enrichment activities, and contracted with Defendant-Appellee Lockheed Martin Utility Services, Inc. (formerly Martin Marietta Utility Services, Inc.) for operation and maintenance of enrichment activities. Lockheed Martin Utility Services, Inc. operated the facility between July 1, 1993 and May 17, 1999. USEC assumed direct operation of PGDP in May 1999 and continues to operate the plant today.
The process of enriching uranium at PGDP involves conversion of uranium hexafluoride, UF6, to compressed gas, which is in turn fed through a series of diffusion stages. PGDP has more than 1,800 diffusion stages. The diffusion process generates an enriched uranium product.2 The enrichment process produces air emissions through stack releases, as well as liquid discharges and waste. Release of low levels of radioactive particles is expected during the uranium enrichment operations; in fact, it is specifically permitted and regulated by the federal government. At all relevant times for purposes of this case, PGDP conducted environmental monitoring to detect and measure any releases of radioactive and other non-radioactive materials. Air monitoring stations are located within the PGDP boundaries and offsite. Surface water in the area surrounding the facility is routinely sampled and tested for contaminants. Testing also is performed on sediments, vegetables, deer, and fish for potentially hazardous substances.
In August 1988, a State of Kentucky agency discovered groundwater contamination outside the boundaries of PGDP — specifically, contamination by trichloroethylene (TCE)3 and technetium-99 (Tc-99)4 in a plume of groundwater flowing northwest from the facility. Levels of TCE exceeding regulatory limits were detected in a few wells. The Tc-99 concentrations were below proposed regulatory limits. PGDP provided a temporary water supply to residents in the area that might be affected by the groundwater contamination. Residents who actually were affected by contaminated groundwater were provided with a continuing temporary water supply and eventually the United States Department of Energy provided them with municipal water at no cost.5 PGDP routinely sent informational mailings to residents near the plant regarding the contamination and the facility began holding public briefings about the groundwater contamination.
On March 1, 1990, a second plume of TCE groundwater contamination was detected extending northeast from the boundaries of PGDP at an average depth of 75 feet below the surface. PGDP conducted a neighborhood notification survey of all local residents and held public briefings about the newly detected contamination. In total, approximately 10 billion gallons of contaminated water were spreading off the site as of April 2000, when the United States General Accounting Office (GAO) issued a report regarding the contamination and cleanup efforts.
In mid-December 1988, elevated levels of polychlorinated biphenyls (PCBs)6 were found in fish taken from a drainage ditch on PGDP's site and the nearby Big Bayou Creek. Seven of 116 fish caught from Big Bayou Creek had PCBs above the Food and Drug Administration's (FDA) "action level" of two parts per million. The FDA advises that PCBs in fish tissue at two parts per million or above may present a health risk to humans.7 The State of Kentucky posted signs advising people to limit consumption of fish caught in the Big Bayou Creek.
Surface soils within and outside the PGDP boundaries were contaminated by water runoff, spills, and buried waste. Soil samples revealed the presence of, inter alia, Tc-99 and PCBs.
Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., the Department of Energy and the Environmental Protection Agency (EPA) developed an Administrative Consent Order, effective November 23, 1988, that established a schedule to investigate and remediate offsite groundwater contamination. In 1994, the EPA placed PGDP on its National Priorities List, the Agency's list of contaminated sites designated as highest priority for cleanup. From 1988 through 1999, the Department of Energy spent about $388 million on efforts to identify and remove contamination in the groundwater, surface water, and soils within and outside PGDP's boundaries. The April 2000 GAO report estimated the cost of completing the cleanup at $1.3 billion from fiscal year 2000 through fiscal year 2010.
Appellants are sixteen persons who reside and/or own real property within ten miles of PGDP.8 They filed suit on January 3, 1997, claiming a diminution of property values based on radiological contamination caused by the operation of PGDP. Appellants concede that they have sustained no physical bodily injuries as a result of Appellees' operations at PGDP. Appellants contend that groundwater and soil contamination constitute an intentional trespass and a permanent private nuisance that has substantially and unreasonably interfered with the use and enjoyment of their property and has decreased their property values. They also claim that Appellees are liable for the contamination under a strict...
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