Steward v. Honeywell International, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROGER STEWARD, et al., on behalf of )

themselves and all others similarly situated, )

)

Plaintiffs, )

)

vs. ) Case No. 18-cv-1124-SMY

)

HONEYWELL INTERNATIONAL, INC., )

)

Defendant. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

In this putative class action, Plaintiffs allege that from 1959 to 2017, a plant making

uranium hexafluoride operated on the outskirts of Metropolis, Illinois and emitted air contaminated

with radioactive and other toxic materials. They further allege that throughout the years, this

material settled into the soil and buildings around Metropolis causing property loss and damages.

Plaintiffs seek compensation from Defendant Honeywell International, Inc. (“Honeywell”), which

now owns the plant.

In the Second Amended Complaint (Doc. 174)1, Plaintiffs assert violations of the Price

Anderson Act (“PAA”), 42 U.S.C. § 2210 et seq. and assert state law claims of negligence/gross

negligence, trespass, nuisance, strict liability, and medical monitoring (Count I); state law claims

related to non-radioactive hazardous substances (Count II); and federal claims pursuant to the

Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42

1 Plaintiffs’ original complaint alleged nine state law causes of action related to Honeywell’s operations of the plant

(Doc. 1). Plaintiffs later amended the complaint to add several statutory claims (Doc. 89). Honeywell moved to

dismiss the amended complaint, which the Court granted in part finding that Plaintiffs’ state law claims were

preempted by the Price Anderson Act, 42 U.S.C. § 2210 et seq. (Doc. 151). Plaintiffs subsequently moved for leave

to amend the complaint to comport with the PAA, which the Court granted (Docs. 163, 173).

U.S.C. § 9601, et seq. (Count III) and the Clean Air Act (“CAA”), 42 U.S.C. § 7401, et seq. (Count

IV).

Now pending before the Court is Honeywell’s Third Motion to Dismiss for Failure to State

a Claim (Doc. 177). For the following reasons, the motion is GRANTED in part and DENIED

in part.

Background

The following factual allegations are taken from Plaintiffs’ Second Amended Complaint

and are deemed true for the purposes of this motion. See Tamayo v. Blagojevich, 526 F.3d 1074,

1081 (7th Cir. 2008): Honeywell and its predecessor operated a nuclear plant on the outskirts of

Metropolis, Illinois from 1959 until late 2017 (the “Plant”). The Plant processed uranium ore into

uranium hexafluoride (“UF6”). The UF6 generated by the Plant was highly toxic radioactive gas

which other facilities acquired for purposes of enriching or purifying into fuel for nuclear reactors

or bombs. The air monitoring system inside the Plant was inadequate and grossly underestimated

the actual uranium levels present, resulting in the Plant consistently underreporting uranium

contamination to federal regulators. The Plant continuously used a system of fans and ducts to

vent air from within to the atmosphere while in operation. This air was laden with radioactive and

non-radioactive hazardous waste. Even after operations ceased, the Plant continues to leak

radioactive and hazardous contamination offsite into the Metropolis community through air and

groundwater.

Plaintiffs reside within 0.4 to 2.5 miles of the Plant. Their properties have been

contaminated by radioactive material and other toxic substances emanating from the Plant. Dozens

of samples taken on and around the Plaintiffs’ properties and at other locations throughout

Metropolis confirm an elevated presence of radioactive particles which are traced to the Plant. In

addition, testing of soil and homes throughout Metropolis reveal microscopic particles of uranium,

thorium, plutonium, and radium emitted from the Plant. Those particles are repeatedly re-

suspended in the air through normal household activities like playing, cleaning, gardening, or

simply walking through the yard or up the stairs.

The risk of cancer posed by the extensive carcinogenic contamination in the Metropolis

area correlates with abnormally high cancer rates in the area and low home values. The Plant has

contaminated Plaintiffs’ properties and other properties throughout Metropolis in excess of state

and federal dose requirements, including those set forth in 10 C.F.R. Part 20 and its predecessors

and 40 C.F.R. Part 190.

Plaintiffs seek to represent a class of all property owners within the town of Metropolis,

Illinois and property owners within 3 miles of the Plant. Plaintiffs seek damages for loss of use

and enjoyment or property, diminution of property value, annoyance, inconvenience, punitive and

property damage, including remediation and medical monitoring as well as injunctive and

declaratory relief as necessary to protect human health and the environment.

Discussion

The federal system of notice pleading requires only that a plaintiff provide a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

However, the allegations must be “more than labels and conclusions.” Pugh v. Tribune Co., 521

F.3d 686, 699 (7th Cir. 2008). This requirement is satisfied if the Complaint (1) describes the

claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds upon

which it rests and (2) plausibly suggests that the plaintiff has a right to relief above a speculative

level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). When considering a Rule 12(b)(6)

motion to dismiss, the Court accepts all allegations in the Complaint as true. Erickson v. Pardus,

551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555).

The PAA was enacted in furtherance of the Atomic Energy Act of 1954, 42 U.S.C. § 2011,

et seq., to encourage private investment in nuclear energy by ensuring that public funds are

available to compensate affected parties in the event of a nuclear incident and to limit liability for

such nuclear incidents. 42 U.S.C. § 2012; Duke Power Co. v. Carolina Environmental Study

Group, Inc., 438 U.S. 59, 64-65 (1978). At the time of its enactment, the Atomic Energy Act

provided for the licensing of privately constructed and operated nuclear power plants that would

be supervised by the Atomic Energy Commission (now the NRC). Id. at 63. The PAA

subsequently required such licensed facilities to purchase private liability insurance in exchange

for indemnification by the federal government for damages more than the amount covered by

private insurance. Id. 64-5; 42 U.S.C. § 2210(a - c). Through various amendments, the funds used

to compensate victims were broadened to include indemnification from a fund subsidized by

nuclear reactor owners. Id.

Through the Price-Anderson Amendments Act of 1988 (“Amendments Act”), Congress

gave federal courts original jurisdiction over “any public liability action arising out of or resulting

from a nuclear incident.” 42 U.S.C. § 2210(n)(2); In re TMI Litigation Cases Consol. II, 940 F.2d

832, 856-857 (3rd Cir. 1991). A plaintiff must establish four elements to prevail on a claim under

the PAA: (1) defendant released radiation into the environment in excess of federal regulatory

limits; (2) plaintiff was exposed to this radiation; (3) plaintiff has injuries; and (4) radiation was

the cause of those injuries. See In re TMI, 67 F.3d at 1119.

Honeywell argues that Plaintiffs have failed to state a cognizable claim under the PAA

because: (1) Plaintiffs fail to allege that they were exposed to radiation in excess of the Nuclear

Regulatory Commission (“NRC”) qualifying radiation dose limits; (2) Plaintiffs have failed to

plead exposure in terms of a “total effective dose equivalent” (“TEDE”) – which Honeywell

maintains is “a necessary element of a PAA claim”; (3) Plaintiffs failed to plead that they were

actually exposed to an NRC-defined qualifying level of radiation; and (4) Plaintiffs fail to plead

an actual injury from the alleged radiation exposure.

Honeywell’s arguments place a higher burden on Plaintiffs than required under federal

pleading rules. It cites O’Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1105 (7th Cir.

1994), Carey v. Kerr-McGee Chem. Corp., 60 F.Supp.2d 800, 811 (N.D. Ill. 1999), and McGlone

v. Centrus, 2020 WL 4431482, at *3-5 (S.D. Ohio July 21, 2020) for the proposition that failure

to plead specific exposures that exceed the NRC-defined limits is a basis for dismissal. But those

decisions did not address pleading standards. In O’Connor, the Seventh Circuit affirmed summary

judgment for the defendant because plaintiff could not show that federal safety standards regarding

permissible radiation doses were exceeded. O’Conner, 13 F.3d at 1107. Similarly, Carey was

also decided on summary judgment after extensive discovery failed to establish evidence that

defendant exceeded the federal dose limits. Carey, 60 F.Supp.2d at 811.

True, Plaintiffs will ultimately need to prove that they were exposed to radiation in excess

of the maximums established by the federal safety regulations to prevail on a PAA claim, but not

on the face of their Complaint. See Johnson v. Wattenbarger, 361 F.3d 991, 994 (7th Cir. 2004)

(“the federal rules do not require plaintiffs to plead either facts or law.”). F.R.C.P. 8 only requires

notice pleading, and Plaintiffs’ allegations in the 90-page Second Amended Complaint are more

than adequate to put Honeywell on notice of the claims asserted against it.

McGlone is also distinguishable. In McGlone, the plaintiffs alleged that their properties

were in proximity to the radiative facility which “put [the plaintiffs’] properties in the direct path

of radioactive air emissions, radioactive particles distributed by the wind blowing such

contamination off the site in dirt and dust, most if not all of which emanate from [the facility]”.

McGlone, 2020 WL 4431482, at *3. The court found these allegations insufficient and dismissed

the plaintiffs’ PAA claim because “nowhere [did] plaintiffs specifically claim that they or their

properties were exposed to radiation in excess of federal limits”. Id. at *4.

Here, Plaintiffs allege that Honeywell violated federal regulatory standards, including 10

C.F.R. § 20.1301 and 10 C.F.R. § 20.1302 (and their predecessors 10 C.F.R. § 20.105 and 10

C.F.R. § 20.106). Plaintiffs further allege that Honeywell underreported the types and amounts of

radioactive material released by the Plant and that “[t]he Plant has contaminated Plaintiffs’

properties in excess of state and federal dose requirements including, to the extent they are

applicable, those set forth in 10 C.F.R. Part 20.” Other allegations include that Plaintiffs’ “property

has been contaminated in excess of the limits established in 10 C.F.R. § 20.1301, et seq. and its

predecessors” and that “[t]esting on other properties throughout the Class Area has also revealed

levels of contamination in excess of limits established in 10 C.F.R. § 20.1301, et seq. and its

predecessors.” These allegations, among many others in the Second Amended Complaint, satisfy

Plaintiffs’ pleading requirements under Rule 8. As such, the Second Amended Complaint states a

colorable claim. See, Cler v. Illinois Educ. Ass’n, 423 F.3d 726, 729 (7th Cir. 2005).

Ultrahazardous/Strict Liability

In Illinois, “[a] defendant who performs an abnormally dangerous or ultrahazardous

activity is subject to liability for harm to the person, land, or chattels of a plaintiff resulting from

the activity, although the defendant has exercised the utmost care to prevent the harm.” In re

Chicago Flood Litig., 176 Ill. 2d 179, 208, 680 N.E.2d 265, 279 (1997), holding modified by

Andrews v. Metro. Water Reclamation Dist. of Greater Chicago, 2019 IL 124283, 160 N.E.3d 895;

See Restatement (Second) of Torts § 519, at 34 (1977).

Allowing a claim for ultrahazardous/strict liability would be inconsistent with the PAA and

would create the possibility that Honeywell would meet the federal standard of care mandated, but

still be held strict liable under Illinois state law. See Wilcox, 401 F.Supp.2d at 1201; Koller v.

Pinnacle West Capital Corp., 2007 WL 446357, at *3 (D. Ariz. Feb. 6, 2007) (granting motion to

dismiss strict liability count); McLandrich v. So. Cal. Edison Co., 942 F.Supp. 457, 465 n. 7 (S.D.

Cal. 1996) (noting that “applying the ‘ultrahazardous activities’ doctrine here would be clearly

inconsistent with the Price-Anderson Act.”); Adkins, 960 F.Supp.2d at 766, 768 (same in uranium

exposure case). Therefore, Plaintiffs ultrahazardous/strict liability claim is dismissed with

prejudice as preempted by the PAA.

Conclusion

For the foregoing reasons, Defendant Honeywell International, Inc.’s Third Motion to

Dismiss (Doc. 177) is GRANTED in part and DENIED in part.

IT IS SO ORDERED.

DATED: October 5, 2022 Uy

STACI M. YANDLE

United States District Judge

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