A group of current and former contractors at the U.S. Energy Department’s Portsmouth Site in Ohio say two federal lawsuits accusing them of failure to contain radioactive contamination should be dismissed.
Centrus Energy and the other companies say Ursula McGlone and other residents who live within 7 miles of the former gaseous diffusion plant failed to state a claim for relief in the lawsuit filed in May with U.S. District Judge Algenon Marbley in the Southern District of Ohio.
The McGlone litigation was the first of two civil cases brought after some evidence of radiological contamination was found at a public middle school about 2 miles from the former uranium enrichment site.
The McGlone case claims contractors failed to prevent high levels of radionuclides around the Portsmouth Site, which endangers public health.
The second, also a class-action effort, was filed by in July by plaintiffs Ray Pritchard and Sharon Melick. The plaintiffs make similar allegations as in the first case. They claim contamination from the Portsmouth Site made their homes unsafe and hurt property values.
The Nov. 5 contractor motion also says McGlone and other plaintiffs are trying to circumvent the 1957 Price-Anderson Act, which limits the potential liability for a nuclear incident. Such incidents are typically defined as any nuclear-related occurrence that results in injury, illness, or property damage. That is essentially what the plaintiffs are alleging, even as they say Price-Anderson does not apply in this case, the companies argue.
The original complaint asserts the alleged contamination is not covered by the Price-Anderson Act liability insurance system and instead is trying to pursue damages under Ohio common law. Centrus Energy said in a recent financial filing that any liability on its behalf should be indemnified by Price-Anderson.
The McGlone case was filed by two Pike County, Ohio, families, one with a child in a middle school that closed May 13 after a university study turned up signs of on-site radiation contamination.
They are the lead plaintiffs in what could become a class-action case to represent people who live within a 7-mile radius of the Portsmouth Site, along with students and faculty members at Zahn’s Corner Middle School since 1993. They seek almost $10 million in monetary damages. The plaintiffs want remediation of Portsmouth-related contamination at their homes, medical monitoring, and a fund for medical bills. It is unclear if this would be in addition to the monetary damages.
Even if the plaintiffs asserted a Price-Anderson claim, it would fail because there is no assertion that any nuclear releases from the Portsmouth Site exceed the radiation dose limits established by the Nuclear Regulatory Commission, the companies argued in their motion.
The motion to dismiss was filed by defendants Centrus, United States Enrichment Corp., Uranium Disposition Services, BWXT Conversion Services, Mid-America Conversion Services, Bechtel Jacobs Co., LATA/Parallax, and Fluor-BWXT Portsmouth.
BWXT Conversion Services and Fluor-BWXT are not listed as defendants in the second case, although the remainder of defendant contractors remain the same.
Meanwhile, the second case is at a similar legal juncture. Largely the same group of current and former contractors filed a motion to dismiss the Pritchard case on Nov. 5, saying the plaintiffs’ state law claims are pre-empted by the Price-Anderson Act. The plaintiffs, who are seeking $5 million in damages, have until Dec. 16 to reply to the motion to dismiss.
Judge Marbley ruled in September that the two cases are related, and both will remain on his docket.
Zahn’s Corner Middle School ended the 2018-2019 school year a week early, after analysis by Northern Arizona University indicated the presence of enriched uranium and neptunium-237 on the property. Subsequent DOE sampling found only trace amounts of radioactive contaminants, which the agency said are well below posing a risk to health.
Nevertheless, local officials moved the middle school students to two different campuses during the 2019-2020 school year. The Energy Department agreed to pay for sampling of dust and air by a third party, which is getting underway. Assistant Secretary of Energy for Environmental Management Anne Marie White was forced to resign her post in June, apparently because her boss at DOE disliked her handling of the controversy.
