Madison - St. Clair Record

Monday, April 6, 2020

Former senator Clayborne suing Honeywell over radiation at Metropolis uranium plant


By The Madison County Record | Jun 3, 2019

Galvin and Clayborne

BENTON – Former state senator, Belleville attorney James Clayborne aims to hold Honeywell accountable for radiation around a uranium plant in Metropolis under environmental laws rather than the law of nuclear liability. 

A class action complaint he filed at U.S. district court seeks relief under laws on clean air, resource recovery, and response compensation. 

Honeywell moved to dismiss the complaint in April, arguing that plaintiffs must bring claims under the Price-Anderson Act, which applies to lawsuits arising from nuclear incidents. 

Congress enacted a broad definition of incident, and District Judge Staci Yandle must decide if it fits Metropolis. 

Honeywell idled the plant in 2017. 

Clayborne filed the suit last May, while still the majority leader of the Illinois Senate. 

Six relatives on three properties allege negligence, nuisance, trespass, property damage, failure to warn, and infliction of emotional distress, all under state law. 

Clayborne proposed to certify a class of property owners in the town of Metropolis and other owners within three miles of the plant. 

The suit alleges radioactive contamination rendered properties unfit for normal use and enjoyment and destroyed their fair market value. 

It says the plant made uranium hexafluoride from 1963 to 2017, expelling air laden with radioactive material and metals that can still be found in soils and buildings. 

It seeks mitigation or abatement to protect the public. 

Former district judge Michael Reagan set trial for Feb. 7, 2020. 

At a hearing before former magistrate judge Stephen Williams last July, Clayborne requested immediate access to the plant. 

According to a transcript of the hearing, Williams asked him what problem he needed to quickly address, and Clayborne said it was an issue of trust. 

“We are just concerned about how this has progressed and how we tried to work through various issues and it just raises a red flag,” Clayborne said. 

Williams said, “It’s not enough just to say, I don’t trust people. You get to go on land but what’s the emergency?” 

Williams said it was a legitimate beef on the part of the defense. 

“You can’t just say, we are going to test for stuff, let us in and we’ll let you know when we are done, especially in a nuclear facility,” he said.

Williams delayed ruling on general access but ordered Honeywell not to disturb a debris pile from a railroad project until plaintiffs could inspect it. 

Plaintiffs didn’t inspect the debris from the railroad project and instead requested access to other sites including the administration building. 

At a hearing in August, Williams told Clayborne associate Katrina Carroll of Chicago that everybody agreed there was no necessity for testing the entire site. 

“Evidently you are not even asking to test the debris that’s being trucked off that I told them they couldn’t move,” Williams said. 

Carroll responded that her expert relayed concern to her that moving debris around the area would interfere with future test results. 

Williams said, “If I’m going to give you two bites at the apple, you only get those if the first bite is the emergency bite.” 

He said he told them he thought he’d do one bite, and they said they wanted two. He said it seemed like bait and switch, and Carroll backed off her request. 

Honeywell lawyers moved to dismiss, claiming preemption under Price-Anderson. 

They quoted Price-Anderson’s definition of incident as any occurrence causing bodily injury, sickness, disease, death, property damage, or loss of property, arising out of or resulting from hazardous properties of sources and byproducts. 

Clayborne opposed the motion but prepared to bring federal claims. 

In October, he notified federal and state environmental agencies that his clients intended to sue Honeywell under environmental laws. 

At a hearing in November, Kevin Thompson of Charleston, West Virginia, opened the argument for plaintiffs. 

Williams asked why he didn’t tell him about the notice at the last conference. 

Williams said, “You knew that was going to have a massive impact on what we were going to talk about today.” 

Thompson said he was surprised that defendants believed it had massive impact. 

Williams said, “I can tell you the court sees it as a big deal.” 

He predicted that district judge Michael Reagan would grant the motion to dismiss in light of binding Seventh Circuit precedent. 

Thompson said individuals who have cancer could file a separate action under federal laws. 

Williams asked Carroll if she would replead under Price-Anderson or appeal, and she said it was tough to read the tea leaves. 

Williams said, “The tea leaves aren’t that hard to read. You’ve figured this out already.” 

Thompson said they needed to do sampling in the plant. 

Williams asked why they should do that if people don’t have actionable levels. 

Carroll said, “We have no idea what that is based on or what science conceivably could have had anything to do with that because all indications that we have gotten from our experts who are looking at this is the complete and total opposite.” 

Williams resigned at year’s end to enter private practice, and Magistrate Judge Mark Beatty succeeded him. 

Beatty granted Clayborne leave to amend the complaint in March, and Clayborne added eight plaintiffs without alleging cancer or confronting Price-Anderson. 

Reagan retired, and Yandle took the case on April 1. 

She delayed trial from Feb. 7 to March 2. 

Honeywell counsel John Galvin of St. Louis moved to dismiss the complaint on April 19, writing that all materials described in it were subject to Price-Anderson. 

“A Price-Anderson claim requires a plaintiff to allege exposure to radiation levels greater than the federal permissible dose limits,” Galvin wrote. 

He wrote that the Nuclear Regulatory Commission calibrates an operator’s duty of care based on consensus as to the hypothetical risk from low levels of radiation that are not expected to cause appreciable bodily injury. 

He wrote that radioactive materials are outside the scope of resource recovery law. 

With respect to response compensation, Galvin wrote that plaintiffs failed to allege that their costs were consistent with the national contingency plan, and failed to allege that Honeywell violated its clean air permit. 

On April 30, plaintiffs served a discovery notice for 11 categories of testimony and 12 categories of documents relating to 60 years of operations. 

Galvin moved to stay discovery on May 9, writing that it would take months to prepare multiple witnesses for depositions. 

He wrote that Honeywell produced 43,177 documents. 

He wrote that one of the purposes of Price-Anderson was to avoid saddling the nuclear industry with costly and burdensome litigation except in circumstances countenanced by Congress. 

At a hearing on May 30, Beatty stayed the notice and took it under advisement. 

Thompson’s partner in West Virginia, David Barney, represents plaintiffs, along with

Paul Henry and Richard Kruger of Metropolis; Celeste Brustowicz, Stephen Wussow, Stuart Smith, and Victor Cobb, all of New Orleans, and Catherine Hilton and Ron Austin, both of Gretna, Louisiana. 

Bart Sullivan of Fox Galvin also represents Honeywell, along with Catherine Schumacher of New York; Eliseo Puig and Timothy MacDonald of Denver; and Michael Daneker and Stephanie Weirick of Washington, all with Arnold and Porter.

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