Key claims in a lawsuit brought by residents living in the shadow of a former gaseous diffusion plant in Ohio are barred on various grounds, including the government contractor defense, current and former Department of Energy contractors for the Portsmouth Site said last week.
Defendants Centrus Energy, Fluor-BWXT Portsmouth and others filed their motion April 28 in the U.S. District Court of Southern Ohio. The plaintiffs, Ursula McGlone and other residents, amended their nearly three year-old complaint in March, keeping the case alive in court for now.
The companies cite various defenses ranging from statute of limitations to a principle that extends the U.S. government’s immunity from certain tort liability to private contractors doing business for the government.
The defendant companies also assert a “coming to the nuisance” defense that essentially says courts should consider whether the presence of a supposed nuisance, in this case a shuttered nuclear-weapons facility, predate the litigants’ complaining about it.
U.S. District Judge Algenon Marbley recently ruled against early dismissal of the case, which could become a class-action lawsuit. The plaintiffs contend the defendants failed to prevent spread of radiological contamination beyond the fence at Portsmouth.
The plaintiffs first took legal action in May 2019, shortly after “hazardous levels” of enriched uranium were publicly reported inside the now-closed Zahns Corner Middle School in Piketon, Ohio, the court said in the March ruling that allowed the case to continue. Former Zahns Corner students had meanwhile disbursed to other schools.
The 20-page document filed by the defendants last week acknowledged the companies were hired by DOE to perform certain contract work at Portsmouth over the years but deny any wrongdoing. Barring settlement, the case is not expected to reach trial before 2025, according to federal district court scheduling orders in April.
