BENTON – Class action lawyers who tried 11 ways to sue Honeywell over uranium pollution in Metropolis missed on ten of them, according to U.S. District Judge Staci Yandle.
On June 29, she reduced their suit to a single claim that Honeywell violated federal law on responses to releases of hazardous materials.
“As to damages, plaintiffs may only pursue the costs of investigating and remedying the effects of a release or threatened release of a hazardous substance into the environment,” Yandle wrote.
Attorney James Clayborne of Belleville filed the suit for lead plaintiff Roger Steward in May 2018, while serving as majority leader of the Illinois Senate.
Steward’s legal team included lawyers from West Virginia, Louisiana, and Chicago.
Clayborne’s complaint stated that from 1963 to 2017, a plant making uranium hexafluoride emitted radioactive and other toxic materials.
He claimed the materials settled into soil and buildings.
He alleged negligence, trespass, nuisance, property damage, failure to warn, ultra hazardous activity, gross negligence, and emotional distress, all under state law.
The action warmed up quickly, as Steward’s lawyers proposed to begin testing before Honeywell could answer the complaint.
In a telephone conference, former magistrate judge Stephen Williams said somebody called his law clerk and said there was construction going on.
Honeywell counsel John Galvin of St. Louis said that in order to remediate impoundments of calcium chloride, Honeywell needed to complete a rail spur.
Honeywell counsel Stephanie Weirick of Washington said Honeywell tested soil as the spur construction went on.
“We cannot allow members of the public to just come on without having gone through proper safety training and the plaintiffs have consistently refused to tell us what it is they want to look at,” Weirick said, according to the court’s record.
“There is almost 60 acres of restricted area that cannot be accessed by members of the public.”
Clayborne said he needed an expert on site, “to do sampling to prevent spoliation.”
Williams said, “What’s the problem with that, that you need to get in there quickly and address?”
Clayborne said, “Basically it’s an issue of trust.”
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 told the parties to establish a protocol.
Honeywell moved to dismiss the complaint, claiming the federal Price-Anderson Act preempted state law.
Congress passed the act to provide public funds for compensation of affected parties in nuclear incidents and to limit liability for such incidents.
Congress amended the act in 1988, to give federal courts jurisdiction over any liability action resulting from an incident.
Agreement on testing broke down and Williams held another phone conference.
He told plaintiff counsel Katrina Carroll of Chicago the focus of the last discussion was what would get spoliated and why.
“You explained to me a good reason but it’s a different one than I’m hearing right now,” Williams said.
Carroll apologized and said, “The reason it’s a different one is because I had a chance to talk to my expert more.”
The dispute persisted through yet another phone conference.
At a conference in court in November 2018, the parties resolved the dispute.
Plaintiff counsel Kevin Thompson of Charleston, West Virginia, said, “We really made a lot of progress that we don’t seem to ever make on the phone.”
Williams said, “We do so many things by phone now and we forget some times how valuable it is to see a face. It makes a difference.”
Clayborne amended the complaint last year, to add federal law claims under the Clean Air Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response Compensation and Liability Act.
Galvin answered for Honeywell that the Price-Anderson Act preempted claims under the three federal laws just as it preempted claims under state law.
The case stalled for a year as the parties awaited Yandle’s decision.
In her order she first dismissed state law claims with prejudice.
Yandle rejected the position of plaintiffs that Price-Anderson didn’t govern property contamination because it wasn’t a nuclear incident.
She found Price-Anderson defined incident as any occurrence causing property loss resulting from radioactive material, and found the definition of occurrence encompasses both discrete events and those that take place over time.
She quoted a Supreme Court decision that Congress enacted Price-Anderson “to avoid duplicative determinations and inefficiencies that ensue when claims within the act are adjudicated in jurisdictions other than a district court.”
She dismissed the Resource Conservation and Recovery Act claim with prejudice, finding the law applies to solid waste and excludes nuclear material.
She also dismissed the Clean Air Act claim with prejudice, finding plaintiffs referred to a regulation that applies only to federal agencies.
“Defendant is not a federal agency subject to the regulation but rather a private corporation,” Yandle wrote.
The response compensation claim survived.
Yandle found Congress enacted the law “to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.”