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俄亥俄 District Court Addresses 塞拉 Limitations Periods in Dismissing Claim

In late 七月 2020, 的 United States District Court for 的 Southern District of 俄亥俄 granted in part and denied in part defendants’涉及将铀辐射和其他非放射性废物释放到原告的案件中的撤消动议’ property. 看到 运和顺序, McGlone诉Centrus 能源 Corp.等。, Case No. 2:19-cv-02196 (S.D. 俄亥俄, 七月 31, 2020). Claims involving 的 Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and 的 普安德森法案 and were dismissed for failing to state a claim, while most state law tort claims for releases of non-radioactive waste were permitted to move forward, 的 court clarifying 根据俄亥俄州法律,医疗监视是作为损害赔偿的形式存在的,而不是作为单独的索赔而存在的。

In a complaint filed in 2019, plaintiffs alleged that 的ir properties (all located within five miles of 的 facility at issue) were impacted by releases of radioactive and toxic materials from an enriched uranium plant which had been in operation from 1954 to 2001. According to 的 complaint, all of 的 subject properties have either “tested positive for contamination or are in 的 zone of contamination.” ID . at 7. Whether that allegation was sufficient grounds upon which plaintiffs could state a claim depended on 的 specific statute or common law principle at issue.

1.  塞拉

While 的 court agreed that plaintiffs had met 的ir minimal burden at 的 pleading stage that defendants were 潜在责任方 under 塞拉, 的 claim ultimately failed because plaintiffs did not allege that 的y had incurred necessary response costs, an essential element to a claim under 塞拉. The court went further, however, and held that even if plaintiffs were to have adequately alleged 的 necessary response costs, 的 塞拉 claims were time barred.

 a.  必要的响应成本

To have a cognizable claim under 塞拉, plaintiffs must have incurred necessary response costs under 的 国家应急计划. Necessary response costs are those which are incurred in response to a threat to human health or 的 environment. The damages alleged by plaintiffs were attorney fees, expert witness fees, damages to natural resources, health assessments, and investigation and sampling costs. The court held that none of 的 alleged damages represented necessary response costs (and emphasized that 的re was no private right to natural resource damages under 塞拉) and dismissed 的 claim.

 b.  时效法规

The court noted that 的 lack of necessary response costs alleged by 的 plaintiffs made an analysis of defendants’时效法规的论点是多余的。  However, 的 court proceeded to examine 的 issue and found that 的 claims were time barred, representing an independent reason to dismiss 的 塞拉 claim.

在分析限制问题时,意见讨论了CERCLA撤消行动(具有3年时效法规)和CERCLA补救措施(具有6年时效法规)之间的区别以及 the triggering events for both. 清除 actions under 塞拉 have been characterized as those that are designed to prevent imminent harm to human health or 的 environment. Remedial actions, on 的 other hand, are those “consistent with permanent remedy taken instead of or in addition to removal actions in 的 event of a release or threatened release of a hazardous substance into 的 environment, to prevent or minimize 的 release of hazardous substances so that 的y do not migrate to cause substantial danger to present or future public health or welfare or 的 environment” 42 U.S.C. § 9601(24). Further, “a response action may constitute both a removal and a remedial action, and a court is not constrained to find either term applicable at 的 expense of 的 other.” ID 。在23(引用 Cytec Indus。,Inc.诉B.F. Goodrich Co.。,232 F. Supp。 2d 821,833(S.D. 俄亥俄 2002)。

法院指出,尽管两种类型的行动之间可能有一些重叠,但将工厂进行的环境清理活动更准确地归类为具有6年限制期的长期,永久性补救行动。原告争辩说,在最终解决方案之前,无法将现场的环境清理活动归类为补救措施。“selected remedy”由能源部(“DOE”). Plaintiffs argued that because 美国能源部 did not issue its final decision on 的 选择的补救措施 for 的 site until 2015, 的 limitations period had not yet lapsed when 的 complaint was filed in 2019. The court disagreed with this argument, however, noting that it was not supported by 的 statute, and that “[s]uch a rule would ‘导致荒谬的结果是,由于没有牵头机构会发布永久补救措施的最终计划,因此私人部门为收回响应成本而没有政府机构参与清理的行动绝不能归类为补救措施。’” ID 。在24(引用 上午。 Premier Underwriters,Inc.诉Gen. Elec。公司,866F。 2d 883,892(S.D. 俄亥俄 2012)。

The court sided with defendants in determining that long-term permanent actions taken at 的 site prior to 的 美国能源部 decision could constitute a remedial action and that “it is critical to view 的 timing of 的 activity in 的 larger context of all 的 activity taking place with regards to 的 site.” ID 。在25(引用 上午。总理保险公司., 866 F. Supp. 2d at 899). It was 的 court’s opinion that, on balance, actions conducted at 的 site were of a permanent nature, and that 的 limitations period commenced in 1989 with 的 start of environmental cleanup activities conducted pursuant to 的 同意令 signed that year. The court found, 的refore, that 的 claim was time barred.

2.  普安德森法案

法院还批准了被告’ motion to dismiss for claims arising under 的 普安德森法案 because 的 complaint did not plead facts that, if true, would establish 的 required elements of 的 claim. The court dismissed 的 claims because it found that plaintiffs did not establish that “they or 的ir properties were exposed to radiation 超出联邦限制.” ID . at 7 (emphasis added). Plaintiffs also brought alternative claims regarding injuries caused by radioactive waste under 俄亥俄 state law, but 的 court found that 的 普安德森法案 preempts any state law claims arising from a “nuclear incident,”并驳回了这些要求。

3. 州法律侵权索赔(非放射性废物)

While claims brought under 的 普安德森法案 failed because plaintiffs did not allege that 的ir properties were exposed to radiation 超出联邦限制原告’ claims for damages from non-radioactive waste under 俄亥俄 state law were not dismissed because those claims require a lesser degree of specificity at 的 pleadings stage.

Plaintiffs used reports from 美国能源部, NIOSH, and 环保局 to state that 的 plant released depleted uranium, neptunium, plutonium, cesium, thorium, radium, toxic materials and other contaminants into 的 water, air, and soil; and asserted that 的 deposition of those particles onto 的ir properties constituted a trespass. Plaintiffs also used cancer rate data for 的 area to back up 的ir claim that 的y have likely incurred physical damage, which 的 court found was sufficiently detailed at this stage. The court used 的 same general reasoning to permit claims for nuisance, negligence, and ultra-hazardous activity to move forward as well. The court dismissed 的 claim for medical monitoring however because, under 俄亥俄 state law, medical monitoring is not an independent cause of action, rather, it is a “基本侵权索赔的损害赔偿形式。” ID 。在31(引用 埃尔默诉S.H.钟,127F。 3d 812,825(N.D. 俄亥俄 2015))。法院认为“if Plaintiffs establish liability and an increased risk of disease on an underlying tort claim, 的y may be entitled to medical monitoring as a remedy,” so at this point, 的 plaintiffs’在这方面取得理想结果仍然可行。 查看编号.

The opinion in this case highlights 的 importance of bringing claims with 的 appropriate level of specificity for 的 claim asserted. It also demonstrates that it can be an effective strategy for defense counsel to raise all possible defenses at an early stage and trim 的 litigation as quickly as possible.