Current and former contractors at the Department of Energy’s Portsmouth Site in Ohio this week filed a motion to dismiss one of the two class action lawsuits brought against those companies by local residents following the May 2019 disclosure of radioactive contamination of a public school outside the fence.
The dismissal motion arrived at about the same time as plaintiffs in a separate Portsmouth suit, also in the U.S. District Court for the Southern District of Ohio, sought to delay their case while finding new lawyers.
In the first suit, defendants Centrus Energy, United States Enrichment Corp., Uranium Disposition Services, BWXT Conversion Services, Mid-America Conversion Services, Bechtel Jacobs, LATA/Parallax Portsmouth, and Fluor-BWXT Portsmouth on Monday filed a motion to dismiss the fourth amended complaint filed by Ursula McGlone, Jason McGlone and other plaintiffs who either live close to the former Portsmouth Gaseous Diffusion Plant or are former students at the Zahn’s Corner Middle School.
For the plaintiffs to win a case like this they must show the defendants released radiation into the environment in amounts that exceed federal standards, according to the contractors’ motion. The plaintiffs must also show they were exposed to the radiation and suffered injuries as a result.
“Plaintiffs plausibly allege neither of these required elements,” according to the motion to dismiss filed May 24.
The Nuclear Regulatory Commission has set a 0.1 rem (100 millirem) per year limit as the radiation milestone for plaintiffs under the Price Anderson Act for nuclear liability claims, according to the defense motion. “No Plaintiff plausibly alleges that they or their properties have received a total effective dose of radiation in excess” of the standard, the defendants say.
The defendants also claim federal appeals courts have not been sympathetic to efforts to utilize Environmental Protection Agency standards when it comes to nuclear liability, as the plaintiffs seek.
The defense motion also said none of the plaintiffs have claimed a bodily injury, but only an “only an increased risk” of such injury. In addition, the defendants argue the plaintiffs have waited too long to file claims against most of the named former contractors, which have been gone from Portsmouth from 2010 or earlier. The potential class action plaintiffs have not effectively argued for an exception to the statute of limitations, according to the motion.
The plaintiffs had cited the threat that contaminated soil could pose to children. The defense countered that if the plaintiffs are relying on risks to “hypothetical” toddlers then it has confirmed “that there is no actual Plaintiff who received a dose even close” to the governing Nuclear Regulatory Commission standard.
The defense motion also said the concern about apparent ground contamination at one of the plaintiffs’ properties is likely overblown, relying as it does on ingestion of soil by infants and adults. The amounts necessary to bring dosage to a legal threshold, the defense argued, are “unrealistic at best” as it would require “a 3-month old to eat 200 milligrams of soil for 350 days straight.”
Portsmouth Plaintiffs Seek Delay to Replace Lawyers
Meanwhile, in the other lawsuit about radiation releases from Portsmouth, a group of plaintiffs who last year sued largely the same group of current and former contractors at Portsmouth have asked a federal court for a four-month delay in the case while they replace two Florida attorneys, one of which is apparently facing disbarment proceedings back home.
The plaintiffs, including former Portsmouth security guard Jeffrey Walburn, filed a motion May 20 in the U.S. District Court for Southern Ohio that asked Magistrate Judge Elizabeth Preston Deavers to grant a delay of “at least” 120 days. Deavers is handling preliminary issues in both this case and the McGlone lawsuit for Chief Judge Algenon Marbley.
On May 11, a local Ohio attorney who also represents the plaintiffs learned one of the trial lawyers being relied upon to argue the complaint, Tim Howard, faces disbarment for a “startling number of violations of the Florida Bar Rules of Professional Conduct.”
The other Florida attorney, Dick Collins, knew of the ongoing disbarment proceedings against Howard but did not disclose that information to the plaintiffs’ local lawyer, Nathan Hunter. Collins filed a motion with the court Wednesday offering to withdraw, adding however he has experience in class action litigation that would be valuable to the case.
No ruling on the 120-day extension request was available among online filings as of deadline for Weapons Complex Monitor.
The two out-of-state lawyers, who the plaintiffs now seek to remove, were granted “pro hac vice” or “for this occasion only” permission to practice in the federal district court in Ohio in February. The motions filed by the plaintiffs at that time, said both were “in good standing” with Florida’s highest court.
The federal district court was already considering motions to dismiss filed in March by defendants such as Centrus Energy and Lockheed Martin, among others. An amended complaint by the plaintiffs in January alleged defendants violated the Racketeer Influenced and Corrupt Organizations Act (RICO). It also all claimed contractors and individual managers falsified records on workplace radioactive exposure to employees as well as off-site release of contamination.
The defendants countered that the plaintiffs’ claims are either filed too late, or lack a factual basis, or both. The plaintiffs want additional time to file another amended complaint.
