ELR Citation: ELR 20703
No(s). CY-91-3015-AAM (E.D. Wash. Oct 31, 1991)

The court dismisses claims by past and present residents and owners of property near the Hanford Nuclear Reservation in Washington against past and present operators of the facility for risk abatement, remediation, medical monitoring, information disclosure, and punitive damages, but denies motions to dismiss plaintiffs' claims of negligence per se, intentional trespass, private and public nuisance, outrageous conduct, intentional infliction of emotional distress, misrepresentation, and concealment. The plaintiffs brought their claims based on the defendants' alleged wrongdoing in the generation, storage, and use of vast quantities of radioactive and nonradioactive hazardous substances at the facility and the release of those substances into the environment. The court first holds that it lacks subject matter jurisdiction over the plaintiffs' claims for abatement of risks allegedly caused by the underground storage of radioactive and nonradioactive hazardous substances at the site. The relief sought by the plaintiffs would require precompletion judicial interference in the government's cleanup efforts of the site, which is expressly proscribed by §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court next holds that it lacks jurisdiction over the plaintiffs' claims for medical monitoring. Given the similarities between the medical monitoring relief requested and the programs that may be implemented by the Agency for Toxic Substances and Disease Registry (ATSDR), and that any such relief would be funded by the Department of Energy, the plaintiffs' claims are tantamount to a challenge to an untaken or unsecured CERCLA §104 cleanup action. The court notes that medical expenses incurred and to be incurred by the plaintiffs for environmental and biological monitoring are properly classifiable as response costs under CERCLA. However, the court holds that environmental, biological, and medical monitoring costs asserted against governmentally indemnified contractors in connection with releases from a federal facility currently the subject of an ongoing CERCLA §104(i) ATSDR study are not "necessary" and are thus not recoverable.

The court next dismisses the plaintiffs' request for disclosure of documents and information from the defendants relating to releases and effects of radioactive and nonradioactive hazardous substances at the site. The court holds that the relief sought would duplicate the discovery process, and the information obtainable by discovery is arguably broader than that sought by the plaintiff in its claim. Turning to the plaintiffs' claim for punitive damages, the court rules that punitive damages are not recoverable as response costs under CERCLA, and that under Washington law, the plaintiffs are not entitled to punitive damages on their Price-Anderson Act claims.

The court denies the defendants' motion to dismiss the plaintiffs' claim of negligence per se, because the plaintiffs argue that their intention was to invoke Washington's statute creating a presumption that the operator of a nuclear waste repository was negligent if a nuclear incident occurs there. The court holds that the plaintiffs' claims of intentional trespass and private nuisance are not barred by the statute of limitations, because under Washington law a statute of limitation does not begin to run until the plaintiff, using reasonable diligence, would have discovered the cause of the action. The court denies defendants' motion to dismiss the plaintiffs' claim of public nuisance, finding that the plaintiffs have alleged at least some forms of injury distinguishable from that incurred by the general population. The court further holds that the plaintiffs have stated a claim for outrageous conduct and intentional infliction of emotional distress under a theory of recklessness.

The court holds that the plaintiffs' claims of misrepresentation and concealment of information relating to hazardous material releases are stated with adequate particularity, because the defendants should be aware of the conduct that allegedly constituted misrepresentation or concealment and only through discovery will the plaintiffs be able to specify the information that the defendants find lacking in the complaint. The court denies motions by defendants conducting activities at the site after 1964 to dismiss claims by plaintiffs who moved from the area near the site before 1965 or suffered diseases allegedly caused by releases from the site before 1965. The court finds that there are insufficient facts on which determinations of the adequacy of the claims can be made. The court holds that the issue of whether an environmental group has standing to bring a claim for recovery of medical monitoring costs is moot, because the court lacks subject matter jurisdiction over the claim. Finally, the court holds that the complaint is sufficiently definite, since the plaintiffs have made a reasonable, best effort to comply with the Federal Rules of Civil Procedure and the court's order to clearly identify the defendants to whom different claims relate. Further, the defendants appear to understand exactly where the plaintiffs are going with this action, and it is doubtful that any effort to secure greater pleading precision at this juncture would be of any real utility.

Counsel for Plaintiffs
Stanley M. Chesley
Waite, Schneider, Bayless & Chesley
1513 Central Trust Tower, 4th & Vine Sts., Cincinnati OH 45202
(513) 621-0267

Merrill G. Davidoff, Daniel Berger, Peter Nordberg
Berger & Montague
1622 Locust St., Philadelphia PA 19103
(215) 875-3000

Counsel for Defendants
John D. Aldock, James R. Bird, Franklin D. Kramer
Shea & Gardner
1800 Massachusetts Ave. NW, Washington DC 20036
(202) 828-2000

David M. Bernick, Ray W. Campbell
Kirkland & Ellis
200 E. Randolph Dr., Chicago IL 60601
(312) 861-2000