# McGlone v. Centrus Energy Corp.

> District Court, S.D. Ohio · July 31, 2020

URL: https://www.frixlaw.com/law-library/cases/10375971

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** July 31, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

URSULA MCGLONE, et al., :
: Case No. 2:19-cv-02196
Plaintiffs, :
: JUDGE ALGENON L. MARBLEY
v. :
: Magistrate Judge Deavers
CENTRUS ENERGY CORPORATION, et al., :
:
:
Defendants. :

OPINION & ORDER

I. INTRODUCTION
This matter is before the Court on Defendants Centrus Energy Corporation; United States
Enrichment Corporation; Uranium Disposition Services, LLC; BWXT Conversion Services, LLC;
Mid-America Conversion Services; Bechtel Jacobs Company, LLC; LATA/Parallax Portsmouth,
LLC; and Fluor-BWXT Portsmouth, LLC’s Motion to Dismiss. Doc. 83. Due to the suspension
of in-court proceedings as a result of the COVID-19 pandemic, the Court will resolve this Motion
on the briefs and without oral argument. For the reasons set forth below, the Court GRANTS IN
PART and DENIES IN PART Defendants’ Motion [#83].
II. BACKGROUND
Plaintiffs Ursula McGlone, Jason McGlone, Julia Dunham, Brittani Rider, and Adam
Rider, proceeding on behalf of themselves, their minor children, and all others similarly situated,
initiated this civil action on May 26, 2019, alleging that they were injured when uranium radiation
was released onto their property from the Portsmouth Gaseous Diffusion Plant (the “Plant”) in
Pike County, Ohio.
From 1954 to 2001, the Plant produced enriched uranium to support the United States’
nuclear weapons program and to support commercial nuclear reactors. Beginning in 1989, and
continuing today, there have been ongoing efforts to clean up the environmental harm caused by
uranium production at the Plant. This remediation was undertaken, in part, pursuant to a Consent
Decree overseen by the Ohio EPA. Each of the Defendants in this case was, at some point between

1993 and present day, responsible for at least one of the following activities at the Plant: uranium
enrichment operations; depleted uranium hexafluoride conversion; or environmental remediation.
The Plaintiffs in this case all own property located within five miles of the Plant. Plaintiffs
contend that their properties have been impacted by or are within the zone impacted by the release
of radioactive and toxic materials from the Plant. Plaintiffs have thus filed this lawsuit raising 15
claims:
1) Count One: Violation of the Price-Anderson Act;
2) Count Two: Violation of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA);

3) Count Three (A): Declaratory Judgment as to Class Rights and Status;
4) Count Four (A): Negligence/Gross Negligence;
5) Count Four (B): Trespass;
6) Count Four (C): Nuisance;
7) Count Four (D): Ultra-Hazardous Activity/Absolute Liability/Strict Liability;
8) Count Four (E): Injunctive and Equitable Relief of Medical Monitoring;
9) Alternative Count One (A): Negligence/Gross Negligence;
10) Alternative Count One (B): Trespass;
11) Alternative Count One (C): Nuisance
12) Alternative Count One (D): Ultra-Hazardous Activity/Absolute Liability/Strict
Liability;

13) Alternative Count One (E): Injunctive and Equitable Relief of Medical
Monitoring;
14) Alternative Count Three (B): Declaratory Judgment of Due Process Protection of
State Law Claims; and

15) Alternative Count Three (C): Declaratory Judgment of Unconstitutionality of
PAA 100 MREM Standard.1

Doc. 78. Defendants now move to dismiss Plaintiffs’ Complaint for a failure to state a claim upon
which relief can be granted.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint for a
failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a
motion to dismiss, “the plaintiff must allege facts that, if accepted as true, are sufficient to raise a
right to relief above the speculative level and to state a claim to relief that is plausible on its face.”
Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007)) (internal quotations omitted). “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.” Id. (quoting Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009)). And although the court “must accept all well-pleaded factual

1 Plaintiffs have not yet filed notice of this constitutional challenge with the United States Attorney
General as required under Federal Rule of Civil Procedure 5.1. Plaintiffs thus ask the Court to
refrain from certifying this issue for review. The Court will instead DISMISS Alternative Count
Three (C) WITHOUT PREJUDICE.
allegations in the complaint as true,” the court “need not accept as true a legal conclusion couched
as a factual allegation.” Id. (quoting Twombly, 550 U.S. at 555) (internal quotations omitted).
IV. ANALYSIS
Defendants move to dismiss Plaintiffs’ Complaint for a failure to state a claim upon which
relief can be granted. Defendants advance several arguments. The Court will address each of

these arguments, in turn, below.
A. Price-Anderson Act Claim (Count One)

First, Defendants contend that Plaintiffs have not stated a cognizable claim under the Price-
Anderson Act because: (1) Plaintiffs fail to allege that they or their properties have been exposed
to radiation above the federal numerical dose limits; (2) Plaintiffs fail to allege that the actions of
any one Defendant caused their injuries; and (3) Plaintiffs fail to allege a compensable injury.
Because Defendants’ first argument is dispositive of the issue, the Court need not address
arguments two or three.
Congress enacted the Price-Anderson Act in 1957 as an amendment to the Atomic Energy
Act “to encourage private sector investment in development of nuclear power by limiting the
liability of private owners and operators in the event of a nuclear incident.” Nieman v. NLO, Inc.,
108 F.3d 1546, 1549 (6th Cir. 1997) (Day v. NLO, Inc., 3 F.3d 153, 154 n.1 (6th Cir. 1993)). “The
Act requires private owners and operators ‘to purchase a specified amount of insurance, and
damage awards over and above that amount are then indemnified by the government.’” Id.
(quoting Day, 3 F. 3d at 154 n.1). “In 1988, Congress enacted the Price-Anderson Amendments
Act of 1988, which explicitly created a federal cause of action for ‘public liability actions’ that
arise from nuclear incidents.” Id.
A public liability action is defined as “any legal liability arising out of or resulting from a
‘nuclear incident.’” Id. at 1550. A nuclear incident, in turn, is “any occurrence, including an
extraordinary nuclear occurrence, within the United States causing, within or outside the United
States, bodily injury, sickness, disease, death, or loss of or damage to property, or loss of use of
property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous

properties of source, special nuclear, or byproduct material.” Id. (quoting 42 U.S.C. § 2014(q)).
To prevail on a claim under the Price-Anderson Act, Plaintiffs must establish four elements: (1)
Defendants released radiation into the environment in excess of federal regulatory limits; (2)
Plaintiffs were exposed to this radiation; (3) Plaintiffs have injuries; and (4) radiation was the cause
of those injuries. See In re TMI, 67 F.3d 1103, 1119 (3d Cir. 1995). The federal regulatory limits
applicable to this case can be found in 10 C.F.R. § 1301.2 See Adkins v. Chevron Corp., 960 F.
Supp. 2d 761, 769 (E.D. Tenn. 2012) (“The permissible dose limits are found at 10 C.F.R. §
20.1301.”); TNS, Inc. v. N.L.R.B., 296 F.3d 384, 398 (6th Cir. 2002) (“[T]he Sixth Circuit has
joined with almost every other circuit in holding that NRC safety regulations conclusively establish

2 10 C.F.R. § 1301:
(a) Each licensee shall conduct operations so that—
(1) The total effective dose equivalent to individual members of the public from the
licensed operation does not exceed 0.1 rem (1 mSv) in a year, exclusive of the dose
contributions from background radiation, from any administration the individual has
received, from exposure to individuals administered radioactive material and released
under § 35.75, from voluntary participation in medical research programs, and from the
licensee’s disposal of radioactive material into sanitary sewerage in accordance with §
200.2003, and
(2) The dose in any unrestricted area from external sources, exclusive of the dose
contributions from patients administered radioactive material and released in accordance
with § 35.75, does not exceed 0.002 rem (0.02 millisievert) in any one hour.
the duty of care owed by defendants in radiation safety personal injury cases governed by the 1998
amendments to the Price-Anderson Act.”).
Here, Defendants argue, among other things, that Plaintiffs’ Complaint must be dismissed
because they were required, but failed, to allege that they or their properties have been exposed to
radiation above the federal regulatory limits. In response, Plaintiffs argue that they were only

required to allege that Defendants released radiation in excess of federal regulatory limits, not that
they were exposed to radiation in excess of these limits.
While there is some support for Plaintiffs’ position, the cases reaching this conclusion have
done so based on the interpretation of federal regulations that have now been superseded by 10
C.F.R. § 20.1301. See In re TMI 67 F.3d at 1116 (“The language of §§ 20.105 and 20.106, which
regulate off-site radiation exposures, does not suggest that a breach occurs only when persons are
exposed to excessive radiation. Instead, the regulations provide that a breach occurs whenever
excessive radiation is released, whether or not anyone is present in the area exposed.”); McClurg
v. Mallinckrodt, Inc., 2017 WL 2929444, at *6 (E.D. Mo. July 7, 2017) (“The Court agrees with

the Third Circuit that this language [in §§ 20.105 and 20.106] does not suggest that a breach occurs
only when the persons are exposed to excessive radiation. Instead, the regulations provide that a
breach occurs whenever excessive radiation is released, whether or not anyone is present in the
area exposed.”) (internal quotations omitted). In 1991, §§ 20.105 and 20.106 were replaced by §
20.1301 “to reflect changes in the basic philosophy of radiation protection.” Good v. Fluor Daniel
Corp., 222 F. Supp. 2d 1236, 1248 (E.D. Wash. 2002). Now, “[r]ather than bar release of radiation
above a certain amount, the regulations bar exposure above a specified amount.” Id. (citing 10
C.F.R. § 20.1301 (requiring licensees to conduct operations so that “[t]he total effective dose
equivalent to individual members of the public from the licensed operation does not exceed 0.1
rems (1 millisievert) in a year”)); see Adkins, 960 F. Supp. 2d at 771 (“District court decisions are
just as overwhelming on the issue of whether an essential element of a public liability action is
that the plaintiff’s exposure exceeded the federal dose limits.”).
Here, Plaintiffs’ Complaint fails to allege that they or their properties have been exposed
to radiation in excess of the limits prescribed in § 20.1301. Instead, Plaintiffs allege:

 Jason and Ursula McGlone’s property, where they and L.M., G.M., B.M., E.M., and
M.M. live, and (sic) is approximately two miles from the Portsmouth Site. This
proximity puts the McGlone’s property 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 Portsmouth Site.

 Julia Dunham’s Property, where she, K.D., and C.D. reside, is approximately four miles
from the Portsmouth Site. This proximity puts Ms. Dunham’s property in the direct
path of radioactive air emissions, radioactive particles distributed by the wind blowing
such contamination off the site in dirt and dust, all of which emanate from the
Portsmouth Site.

 Adam and Brittani Rider’s Property, where they and M.R., C.R., L.R. and L.R. live,
and (sic) is approximately four and one-half miles from the Portsmouth Site. This
proximity puts the [Rider’s] property 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 Portsmouth Site.

 Plaintiffs’ properties have either tested positive for contamination or are in the zone of
contamination.

Doc. 78 at 13. Nowhere do Plaintiffs specifically claim that they or their properties were exposed
to radiation in excess of federal limits.
Alternatively, Plaintiffs argue that the federal regulatory limits in § 20.1301 do not apply
to six of the Defendants -- Uranium Disposition Services, LLC; BWXT Conversion Services, LLC;
Mid-America Conversion Services; Bechtel Jacobs Company, LLC; LATA/Parallax Portsmouth,
LLC; and Fluor-BWXT Portsmouth, LLC -- because these Defendants were not licensed by the
Nuclear Regulatory Commission. See 10 C.F.R. § 20.1002 (“The regulations in this part apply to
persons licensed by the Commission to receive, possess, use, transfer, or dispose of byproduct,
source, or special nuclear material or to operate a production or utilization facility under parts 30
through 36, 39, 40, 50, 52, 60, 61, 63, 70, or 72 of this chapter, and in accordance with 10 CFR
76.60 to persons required to obtain a certificate of compliance or an approved compliance plan
under part 76 of this chapter.”). Consequently, Plaintiffs maintain that these Defendants can be

held strictly liable under Ohio law for their radiation emissions.
Plaintiffs supply no case law suggesting that non-licensees in a Price-Anderson Act suit
are held to a different standard than licensees. In fact, one court within this District has held just
the opposite. See Doc. 83-2 at 34 n.30, Boggs v. Divested Atomic Corp., Case No. 90-cv-840 (S.D.
Ohio Aug. 23, 2007) (Rice, J.) (“Part 20 governs activity by entities which are licensed by the
NRC to possess, use, transfer or dispose of radioactive material. See 10 C.F.R. § 20.1002. The
Defendants are contractors for the DOE rather than licensees of the NRC. However, the
regulations contained in Part 20 were made applicable to such contractors by virtue of Executive
Order 12088 (1978). See 43 F.R. 47707 (1978). See also, Executive Order 11752 (1973), 38 F.R.

34793 (1973).”). Further, DOE General Order 458.1 requires contractors to “establish and
implement procedures and practices” to ensure that “exposure of members of the public to ionizing
radiation will . . . [n]ot cause a total effective dose (TED) exceeding 100 mrem (1mSv) in a year[.]”.
See U.S. Dept. of Energy Order 458.1 (February 11, 2011). This is the exact standard established
by § 20.1301 for licensees. The Court, therefore, finds no basis to hold Defendants to a more
onerous standard than what § 20.1301 requires.
Nor does the Court find persuasive Plaintiffs’ argument that 10 C.F.R. § 20.1101 sets the
applicable standard in this case, as opposed to § 20.1301. See 10 C.F.R. § 20.1101(b) (“The
licensee shall use, to the extent practical, procedures and engineering controls based upon sound
radiation protection principles to achieve occupational doses and doses to members of the public
that are as low as is reasonably achievable (ALARA).”). Several courts within the Sixth Circuit
have already rejected this argument. See Adkins, 960 F. Supp. 2d at 772 (“[S]o far as this Court
knows, every court to address the ALARA standard referred to by plaintiffs has rejected it as the
standard of care in a public liability action.”); Doc. 83-2 at 37, Boggs v. Divested Atomic Corp.,

Case No. 90-cv-840 (S.D. Ohio Aug. 23, 2007) (“ALARA is in essence a negligence standard
which would allow juries to become the final arbiters of how much radiation can be released
without violating federal law. Such a result would violate the Supreme Court’s admonition that
‘the Federal Government maintains complete control of the safety and nuclear aspects’ of nuclear
energy. Accordingly, the Court conclude[s] that ALARA is not part of the standard of care with
which the Defendants were obligated to comply.”) (internal citations omitted). This Court will
follow suit.
In short, Plaintiffs fail to state a cognizable claim against Defendants under the Price-
Anderson Act. Because Plaintiffs do not allege that they or their properties were exposed to

radiation levels in excess of the limits set forth in 10 C.F.R. § 20.1301, Plaintiffs’ claim in Count
One of the Complaint is DISMISSED.
B. State Law Claims (Alternative Count One)
Defendants also argue that Plaintiffs’ state law claims, as set forth in Alternative Count
One (A) through (E), are preempted by the Price-Anderson Act, and thus, subject to dismissal.
The Court agrees.
Several courts within this Circuit, including the Sixth Circuit itself, have addressed the
issue of preemption in connection with the Price-Anderson Act. In Nieman, the Sixth Circuit held
that “a claim growing out of any nuclear incident is compensable under the terms of the [Price-
Anderson Act] or it is not compensable at all.” 108 F.3d at 1552 (quoting In re TMI II, 940 F.2d
832, 854 (3d Cir. 1991)); see Rainer v. Un. Carbide Corp., 402 F.3d 608, 617 (6th Cir. 2005) (“As
the district court noted, this court has interpreted the Price-Anderson Act as preempting otherwise
applicable state-law causes of action.”). Similarly, in Adkins, the Eastern District of Tennessee,
relying on Nieman, held that “the Price-Anderson Act completely preempts state law causes of

action for public liability arising out of or resulting from nuclear incidents.” 960 F. Supp. 2d at
767; see Smith v. Carbide & Chems. Corp., 2009 WL 3007127, at *2 (W.D. Ky. Sept. 16, 2009)
(“In 1988, Congress enacted the Price-Anderson Amendments Act of 1988, which created a federal
cause of action for ‘public liability actions’ that arise from nuclear incidents. As a result, the Act
now provides the ‘exclusive means’ for pursuing claims arising out of any nuclear incident.”). It
follows that, within the Sixth Circuit, if Plaintiffs’ allegations arise out of a “nuclear incident,”
then such claims are preempted by the Price-Anderson Act.
Other courts almost uniformly follow this Circuit’s approach. See In re TMI II, 940 F.2d
at 854-55 (“Under the terms of the Amendments Act, the ‘public liability action’ encompasses

‘any legal liability’ of any ‘person who may be liable’ on account of a nuclear incident. Given the
breadth of this definition, the consequence of a determination that a particular plaintiff has failed
to state a public liability claim potentially compensable under the Price-Anderson Act is that he
has no such claim at all.”) (internal citation omitted) (“[T]here can be no action for injuries caused
by the release of radiation from federally licensed nuclear power plants separate and apart from
the federal public liability action created by the Amendments Act.”); O’Conner v. Commonwealth
Edison Co., 13 F.3d 1090, 1105 (7th Cir. 1994) (“[S]tates are preempted from imposing a non-
federal duty in tort, because any state duty would infringe upon pervasive federal safety regulations
in the field of nuclear safety, and thus would conflict with federal law.”); Roberts v. Florida Power
& Light Co., 146 F.3d 1305, 1308 (11th Cir. 1998) (“[V]irtually every federal court to consider
the issue, including three circuit court of appeals, have held that ‘federal regulations must provide
the sole measure of the defendants’ duty in a public liability cause of action. This is because any
state duty would infringe upon pervasive federal regulation in the field of nuclear safety, and thus
would conflict with federal law.”) (internal quotations and citations omitted); but see Cook v.

Rockwell Int’l Corp., 790 F.3d 1088, 1099 (10th Cir. 2015) (finding the Price-Anderson Act does
not preempt “a state law nuisance claim when a nuclear incident is asserted but unproven”); cf.
Dailey v. Bridgeton Landfill, LLC, 290 F. Supp.3d 1090, 1098 (E.D. Mo. 2017) (rejecting Cook
and holding a plaintiff cannot proceed on the basis of Price-Anderson Act liability and state law
liability simultaneously).
Here, Alternative Count One (A) through (E) are all Ohio state law claims based on the
exact same conduct and injury alleged under Plaintiffs’ Price-Anderson Act claim: Defendants’
facility emitted radioactive material, which resulted in damage to or interference with their
property. To be sure, Plaintiffs’ Complaint specifies that Alternative Count One (A) through (E)

was intended, at least in part, to serve as a backup should the Court find that “the releases of the
[D]efendants do not rise above the level specified under PAA and/or the applicable regulations.”
See Doc. 78 at 39 n.6. In Nieman, however, the Sixth Circuit made clear that the Price-Anderson
Act preempts state law claims arising out of a nuclear incident -- which is defined as any
occurrence, including an extraordinary nuclear occurrence, within the United States causing,
within or outside the United States, bodily injury, sickness, disease, death, or loss of or damage to
property, or loss of use of property, arising out of or resulting from the radioactive, toxic,
explosive, or other hazardous properties of source, special nuclear, or byproduct material. See 108
F.3d at 1552; 42 U.S.C. § 2014(q). Plaintiffs’ state law claims in Alternative Count One (A)
through (E) fit squarely within this definition. Accordingly, Alternative Count One (A) through
(E) are DISMISSED.
Additionally, in Alternative Count Three (B), Plaintiffs assert that Price-Anderson Act
preemption violates their due process rights by depriving them an adequate remedy under state
law. The Sixth Circuit has already disposed of this argument in an analogous context. See Rainer

v. Un. Carbide Corp., 402 F.3d 608, 624 (6th Cir. 2005) (“Because Supreme Court precedent
clearly calls for judicial restraint where Congress has provided what it considers adequate remedial
mechanisms for constitutional violations, and because the Price-Anderson Act constitutes such an
adequate remedial mechanism, we find no basis for the plaintiffs to bring their Bivens claims.”).
Similarly, here, the Price-Anderson Act provides an adequate remedial mechanism for state tort
law violations. See id. (noting a public liability action under the Price-Anderson Act encompasses
“any” legal liability arising out or resulting from a nuclear incident); Day, 3 F.3d at 154 n.1 (“The
amendment [to the Price-Anderson Act] was not intended to alter the state law nature of the
underlying tort claims. It provides that ‘the substantive rules for decision in such action shall be

derived from the law of the State in which the nuclear incident occurs, unless such law is
inconsistent with the provisions of such section.”) (quoting 42 U.S.C. § 2014(hh)); Nieman, 108
F.3d at 1553 (“His federal claim will be derived from state law, as mandated by § 2014(hh), to the
extent it is not inconsistent with federal law.”).
Moreover, “the Constitution does not forbid the creation of new rights, or the abolition of
old ones recognized by the common law, to attain a permissible legislative object.” Silver v. Silver,
280 U.S. 117, 122 (1929). Congress created the Price-Anderson Act to remove the economic
impediments of private sector investment in the development of nuclear power while
simultaneously providing the public compensation in the event of a nuclear incident. See Duke
Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 83 (1978). To this end, the Act now
serves as the sole mechanism through which aggrieved parties may pursue legal liability arising
out of or resulting from a nuclear incident. See Rainer, 402 F.3d at 624. Such economic balancing
on the part of Congress has “a presumption of constitutionality” and “the burden is on [the] one
complaining of a due process violation to establish that the legislature has acted in an arbitrary and

irrational way.” Duke Power Co., 438 U.S. at 83. Plaintiffs have not met that burden here. To
the contrary, “[p]ermitting the states to apply their own nuclear regulatory standards, in the form
of the duty owed by nuclear defendants in tort” -- as Plaintiffs suggest -- “would . . . ‘frustrate the
objectives of federal law.’” In re TMI II, 940 F.2d at 859. For these reasons, Plaintiffs’ request in
Alternative Count Three (B) for a declaratory judgment that Price-Anderson Act preemption
violates their due process rights is DISMISSED.3
C. CERCLA Claim (Count Two)
Next, Defendants argue that Plaintiffs’ CERCLA claim must be dismissed for six
independent reasons: (1) Plaintiffs fail to allege that any Defendant is a “responsible party” within

the meaning of the statute; (2) Plaintiffs fail to allege that Defendants engaged in negligent, grossly
negligent, or intentional misconduct; (3) Plaintiffs fail to allege that they have incurred necessary
response costs; (4) Plaintiffs fail to allege that any response costs were consistent with the National

3 Plaintiffs also suggest that Price-Anderson Act preemption violates the Fifth Amendment’s
Takings Clause, as it deprives them of an adequate remedy under state law for property damages,
thereby amounting to a governmental taking of their homes without just compensation. As
explained, however, the Price-Anderson Act provides an adequate remedial mechanism for state
tort law violations. Moreover, the Government has not taken Plaintiffs’ private property; rather,
the Government has limited Plaintiffs’ ability to pursue legal action under state common law. See
Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1 50 (1912) (“A person has no property, no
vested interest, in any rule of the common law.”).
Contingency Plan; (5) Plaintiffs seek relief that cannot be recovered under the CERCLA; and (6)
Plaintiffs’ cost-recovery claim is time-barred.
The CERCLA is a statute which “facilitates cleanup and remediation of contaminated
lands, and shifts the financial burden of such environmental response actions to the parties
responsible for releasing hazardous substances.” Ohio ex rel. DeWine v. Breen, 362 F. Supp. 3d

420, 434 (S.D. Ohio 2019) (quoting ITT Indus., Inc. v. BorgWarner, Inc., 506 F.3d 452, 456 (6th
Cir. 2007)). “CERCLA imposes liability on certain categories of potentially responsible parties
(‘PRPs’) including: the current owner and operator of a contaminated facility, the owner or
operator of a facility at the time hazardous substances were disposed of, and any person who
arranged for disposal of such hazardous substances at a facility.” Id. To state a claim under the
CERCLA, Plaintiffs must establish four elements: “(1) the property is a facility; (2) there has been
a ‘release’ or a ‘threatened release’ of a hazardous substance; (3) the release has caused the plaintiff
to incur necessary costs of response that are consistent with the National Contingency Plan
(‘NCP’); and (4) the defendant is in one of four categories of potentially responsible parties

(‘PRPs’).” Id. (citing Reg’l Airport Auth. v. LGF, LLC, 460 F.3d 697, 703 (6th Cir. 2006)). Under
this backdrop, the Court will turn to Defendants’ arguments.
1. Whether Plaintiffs Allege Defendants are Responsible Parties
First, Defendants argue that Plaintiffs’ CERCLA claim must be dismissed because
Plaintiffs fail to allege with plausibility that any of the Defendants are the current “owners and
operators” of the Plant. Defendants, however, construe Plaintiffs’ Complaint too narrowly.
There are four classes of individuals that can be held liable for the release of hazardous
substances under the CERCLA: (1) current owners and operators of a facility where hazardous
substances were disposed; (2) past owners or operators who owned or operated a facility at the
time of release; (3) transporters of hazardous substances; and (4) persons who arranged for disposal
or treatment at any facility containing such substance. Id. at 437 (citing 42 U.S.C. § 9607(a)(1)-
(4)). “To establish liability under CERCLA’s section 9607(a)(1), [Plaintiffs] must prove that a
defendant currently owns and operates a facility. In contrast, section 9607(a)(2) imposes liability
on any person who at the time of disposal of any hazardous substance owned or operated any

facility at which such hazardous substances were disposed of.” Id. (internal quotations and
citations omitted).
Here, Plaintiffs’ Complaint alleges that “[e]ach responsible party is a current owner and
operator of a vessel or facility under 42 U.S.C. § 9607(a).” See Doc. 78 at 32; see also id. at 33
(“The releases of hazardous substances occurred at a facility owned and operated by the
Responsible Parties, who are therefore ‘liable’ for response costs under § 107(a) of CERCLA, 42
U.S.C. § 9607(a)(1).”). It is thus true that, as Defendants maintain, Plaintiffs plainly allege
Defendants are responsible parties under § 9607(a)(1). The problem with this allegation, however,
is that none of the Defendants owns the Plant. Rather, the United States Government does.

Moreover, many of the Defendants have been off-site for several years and, therefore, cannot be
considered current operators of the Plant. See id. at 8-10.
Notwithstanding the above, the Court is reminded that the pleading standards of Federal
Rule of Civil Procedure 8 are to be construed liberally. See Carter v. Ford Motor Co., 561 F.3d
562, 567 (6th Cir. 2009) (“Had the challenge to the sufficiency of her pleading arisen in the context
of a Rule 12(b)(6) motion, the district court would have applied the ‘extremely modest standard’
of notice pleading, which direct[] courts to construe pleading[s] liberally.”). Moreover, Rule 8(e)
demands that pleadings “be construed so as to do justice.” Fed. R. Civ. P. 8(e). Consistent with
these principles, “the Rules require that [the Court] not rely solely on labels in a complaint, but
that [it] probe deeper and examine the substance of the complaint. Minger v. Green, 239 F.3d 793,
799 (6th Cir. 2001). To this end, the Sixth Circuit has made clear that “the label which a plaintiff
applies to a pleading does not determine the nature of the cause of action which he states.” Id.
(quoting United States v. Louisville & Nashville R. Co., 221 F.2d 698, 701 (6th Cir. 1955)).
Throughout their 45-page Complaint, Plaintiffs have alleged that each of the Defendants,

at different points between 1993 and present day, were responsible for either operations at the
Plant or environmental remediation, including the disposal of waste. See Doc. 78 at 8-10. These
allegations were sufficient to suggest that Plaintiffs intended to proceed under § 9607(a) generally,
as opposed to just under § 9607(a)(1). See United States ex rel. SNAPP, Inc. v. Ford Motor Co.,
532 F.3d 496, 503 (6th Cir. 2008) (“[A] complaint need not provide an exhaustive roadmap of a
plaintiff’s claims, but it must be sufficient to give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests. So long as a complaint provides the defendant with such
minimal notice, Rule 8’s requirements are met.”) (internal quotations and citations omitted).
Certainly, Defendants fall within the definition of a responsible party set forth in §§ 9607(a)(2)-

(4), as they were either past operators at the Plant or responsible for the disposal of toxic waste.
Therefore, to dismiss Plaintiffs’ Complaint on a technicality because they labeled their claim as
one under § 9607(a)(1) as opposed to §§ 9607(a)(2)-(4) would result in a manifest injustice.
Hence, the Court will not do so here.
2. Whether Plaintiffs Allege Negligence, Gross Negligence, or Intentionality
Next, Defendants argue that Plaintiffs’ CERCLA claim must be dismissed because
Plaintiffs fail to allege that Defendants’ conduct was negligent, grossly negligent, or constituted
intentional misconduct.
42 U.S.C. § 9619(a) provides that any “person who is a response action contractor with
respect to any release of a hazardous substance or pollutant or contaminant from a vessel or facility
shall not be held liable” under any federal law unless the release caused by the response action
contractor was the result of conduct “which is negligent, grossly negligent, or which constitutes
intentional misconduct.” 42 U.S.C. § 9619(a)(1)-(2). A response action contractor (“RAC”) is

any person “who enters into a response action contract with respect to any release or threatened
release of a hazardous substance or pollutant or contaminant from a facility and is carrying out
such contract.” 42 U.S.C. § 9619(e)(2)(A)(i). A response action contract, in turn, is a written
agreement entered into by a response action contractor with a federal agency “to provide any
remedial action under this chapter at a facility listed on the National Priorities List, or any removal
under this chapter, with respect to any release or threatened release of a hazardous substance or
pollutant or contaminant from the facility.” 42 U.S.C. § 9619(e)(1).
As a threshold matter, Defendants claim that they are all RACs as defined in § 9619(e)(2)
whereas Plaintiffs maintain that only two of the eight Defendants -- Bechtel Jacobs Company, LLC

and Fluor-BWXT Portsmouth, LLC -- are RACs. Plaintiffs contend that Defendants Centrus
Energy Corporation; United States Enrichment Corporation; Uranium Disposition Services, LLC;
BWXT Conversion Services, LLC; Mid-America Conversion Services; and LATA/Parallax
Portsmouth, LLC are instead “operators,” in that they directed the workings of, management of,
and affairs of the Plant, as opposed to facilitating remediation. Consequently, Plaintiffs argue that
these six Defendants are subject to strict liability under the CERCLA.
Taking the allegations in Plaintiffs’ Complaint at face value, three -- not two -- of the eight
Defendants qualify as RACs responsible for environmental remediation at the Plant:
Environmental Remediation and Waste Management

37. Environmental cleanup at the Portsmouth Site began in 1989, has been continuous,
and continues today.

38. Between 1997 and 2005 Bechtel Jacobs Company, LLC (“Bechtel Jacobs”) was
responsible for environmental remediation at the Portsmouth Site.

39. Between 2005 and 2010 LATA/Parallax Portsmouth, LLC (“LATA/Parallax”) was
responsible for environmental remediation at the Portsmouth Site. LATA/Parallax was
responsible for groundwater and soil remedial actions, removing legacy waste,
decontamination and decommissioning (D&D) facilities, highly enriched uranium
disposition, operating the site waste storage facilities, and surveillance and maintenance
activities, as well as other activities.

40. From 2010 to present Fluor-BWXT Portsmouth, LLC (“Fluor-BWXT”) has been
responsible for environmental remediation at the Portsmouth Site. Fluor-BWXT’s work is
expected to continue until 2024.

Doc. 78 at 10. The other five Defendants are alleged to have been responsible for the production
of uranium or operations at the Plant. See id. at 8-10. At this stage, the Court accepts the facts
alleged in Plaintiffs’ Complaint as true; however, discovery may ultimately prove otherwise.4
Because it appears that at least three of the Defendants qualify as RACs, Plaintiffs are
required to plead facts establishing that their conduct in connection with cleanup activities at the
Plant were negligent, grossly negligent, or constituted intentional misconduct. Here, Plaintiffs
have alleged the following facts demonstrating Defendants’ misconduct:
“Defendants’ acts and omissions and negligent releases of hazardous, toxic, and radioactive
waste materials have exposed Plaintiffs to highly dangerous materials.” Doc. 78 at 28.

“According to recent scientific testing, radioactive materials which have been identified as
originating from the plant, particularly enriched Uranium, exist at statistically significant
excess levels in the sediments and floodwater sediments of the nearby creeks and rivers.

4 Plaintiffs assert that the RAC Defendants can also be held liable as operators because they had
dual duties. See Kaiser Aluminum & Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1341
(9th Cir. 1992) (rejecting argument that “a contractor can never be liable as an operator under
section 9607(a)(2)). While this argument might apply to Defendant LATA Parallax Portsmouth,
LLC, there are no facts in the Complaint suggesting Defendants Bechtel Jacobs Company, LLC
or Fluor-BWXT Portsmouth, LLC had operational duties at the Plant.
These creeks and rivers are ones into which radioactive liquid discharges from the plant
are and have been released and also into which airborne discharges which are washed out
by precipitation find their way into by means of runoff.” Doc. 78 at 19.

“Reports by DOE, NIOSH and EPA, demonstrate that there have been multiple instances
of releases of contaminants from the Portsmouth Site, including both radioactive and/or
hazardous contaminants, to the water, air, and soil in violation of federal statutes and/or
regulations.” Doc. 78 at 11.

“Recent scientific testing performed at locations adjacent to the plant on publicly accessible
areas supports a conclusion that external radiation levels exceed the allowable level of
exposure to members of the public under federal law, including The Price-Anderson Act,
and including, but not limited to, more than 100 millirems above background levels in a
calendar year.” Doc. 78 at 11.

“The counties which contain and are adjacent to the plant, namely Pike, Scioto, Vinton,
Adams, and Lawrence counties, are among those having the highest cancer rates in the
State of Ohio.” Doc. 78 at 12.

Plaintiffs have met their minimal burden at the pleading stage.5
3. Whether Plaintiffs Allege Necessary, Recoverable Response Costs that are Consistent
with the National Contingency Plan

Next, Defendants argue that Plaintiffs’ CERCLA claim must be dismissed because
Plaintiffs fail to allege that they incurred necessary response costs. The Court agrees.
Whether costs were necessary “is a threshold issue for recovery under § 107(a).” Reg’l
Airport Auth. Of Louisville v. LFG, LLC, 460 F.3d 697, 703 (6th Cir. 2006). Costs are necessary
“if incurred in response to a threat to human health or the environment.” Id. Here, Plaintiffs are
seeking to recover four types of costs: (1) attorney fees, expert witness fees, and other litigation

5 To the extent Defendants argue that Plaintiffs fail to tie a specific release to a particular
Defendant, the Court believes this argument is premature. Plaintiffs are claiming damages
stemming from contaminants that have been released from the Plant between 1993 and present
day, and each of the Defendants have assumed control over that Plant at some point during this
period. It would be virtually impossible at this stage for Plaintiffs to tie these releases to a
particular Defendant without the benefit of discovery. It is, therefore, enough that Plaintiffs have
alleged a specific timeframe.
costs; (2) damages for injury to, destruction of, or loss of natural resources, including the
reasonable costs of assessing such injury, destruction, or loss resulting from such a release; (3) the
costs of any health assessment or health effects study carried out under 42 U.S.C. § 9604( i); and
(4) substantial investigation and sampling costs necessary to determine the nature and extent of
the releases and contamination of the area around Pike County, including collecting environmental

samples and analytical laboratory fees for the analysis of said samples. See Doc. 78 at 32-34.
Plaintiffs, however, have not alleged facts establishing that any of these costs were necessary, and
thus, recoverable.
The first cost, Plaintiffs’ litigation-related expenses, is barred under Sixth Circuit
precedent. See Ellis v. Gallatin Steel Co., 390 F.3d 461, 482 (6th Cir. 2004) (“Generally speaking,
legal fees and litigation-related costs are not recoverable; only work that is closely tied to the actual
cleanup . . . may constitute a necessary cost of response.”) (internal quotations and citations
omitted); Vill. of Milford v. K-H Holding Corp., 390 F.3d 926, 936 (6th Cir. 2004) (“A CERCLA
plaintiff may recover attorney’s fees if the activities for which the fees are incurred could have

been performed by a non-attorney, are closely tied to an actual cleanup, are not related to litigation,
and are otherwise necessary.”); see also Krygoski Const. Co., Inc. v. City of Menominee, 431 F.
Supp. 2d 755, 766 (S.D. Ohio 2006) (“Fees for expert witnesses are not compensable under
CERCLA unless they are a necessary part of remediating a site and closely related to the
cleanup.”).
Similarly, there is no private right to recover damages for injury to, destruction of, or loss
of natural resources. See 42 U.S.C. § 9607(f)(1) (“In the case of an injury to, destruction of, or
loss of natural resources under subparagraph (C) of subsection (a) liability shall be to the United
States Government and to any State for natural resources within the State[.]”). Absent a private
right to recover these damages, the costs associated with assessing such an injury cannot be deemed
necessary.
With respect to the third category of costs, the clear intent of the CERCLA is to give the
Agency for Toxic Substances and Disease Registry (“ATSDR”) the authority under 42 U.S.C. §
9604(i) to conduct health assessments and/or health effects studies and recover those costs. See

42 U.S.C. § 9607(f)(1); 42 U.S.C. § 9604(i); Struhar v. City of Cleveland, 7 F. Supp. 2d 948, 952
(N.D. Ohio 1998) (“CERCLA does not provide a private right of action for recovery of medical
monitoring costs . . . [r]ather, the authority to create such a fund rests solely with the Agency for
Toxic Substances and Disease Registry (‘ATSDR’).”); Ambrogi v. Gould, Inc., 750 F. Supp. 1233,
1246 (M.D. Pa. 1990) (“[W]e must come to the conclusion that ‘medical surveillance, health effect
studies, and health assessments’ are not recoverable response costs under CERCLA.”); but see
Brewer v. Ravan, 680 F. Supp. 1176, 1179 (M.D. Tenn. 1988) (“To the extent that plaintiffs seek
to recover the cost of medical testing and screening conducted to assess the effect of the release or
discharge on public health or to identify potential public health problems presented by the release

. . . they present a cognizable claim under section 9607(a).”); cf. Daigle v. Shell Oil Co., 972 F.2d
1527, 1535-37 (10th Cir. 1992) (rejecting the Brewer interpretation as too broad and finding
medical monitoring costs are not recoverable by a private party under the CERCLA). Indeed,
Congress provided an explicit mechanism under the statute to allow private individuals to petition
the ATSDR to perform these assessments. See 42 U.S.C. § 9604(i)(6)(B). To permit Plaintiffs to
recover these costs, as some courts have done, would deem the provisions surrounding the ATSDR
superfluous.
Finally, “investigative costs incurred by a private party after the EPA has initiated a
remedial investigation, unless authorized by the EPA are not considered necessary because they
are duplicative of the work performed by the EPA.” Rolan v. Atl.Richfield Co., 427 F. Supp. 3d
1013, 1023-24 (N.D. Ind. 2019) (internal quotations omitted); see Louisiana-Pac. Corp. v. Beazer
Materials & Servs., Inc., 811 F. Supp. 1421, 1425 (E.D. Cal. 1993) (“As a general matter,
investigative costs incurred by a private party after the EPA has initiated a remedial investigation,
unless authorized by the EPA, are ‘duplicative’ and therefore not recoverable.”); Wilson Rd. Dev.

Corp. v. Fronabarger Concreters, Inc., 209 F. Supp. 3d 1093, 1112 (E.D. Mo. 2016) (“Monitoring
and assessment costs are needless and thus not recoverable where such efforts are ‘duplicative of
work already performed’ to monitor and assess contamination.”). For decades, extensive
monitoring and remediation efforts have taken place at the Plant under the authority of the Ohio
EPA. And critically, Plaintiffs do not allege that they were authorized by the EPA to conduct an
independent investigation pursuant to the CERCLA. Accordingly, because Plaintiffs have failed
to allege any necessary, recoverable response costs that are consistent with the National
Contingency Plan, their CERCLA claim in Count Two of the Complaint is DISMISSED.
4. Whether Plaintiffs’ CERCLA Claim is Time Barred

Even if Plaintiffs had adequately pled necessary, recoverable response costs, Defendants
argue that Plaintiffs’ CERCLA claim is barred by the statute of limitations. While it is no longer
necessary to reach this issue, the Court agrees.
42 U.S.C. § 9613(g)(2) provides that an initial action for recovery of costs must be
commenced:
(A) for a removal action, within 3 years after completion of the removal action; and
(B) for a remedial action, within 6 years after initiation of physical on-site construction of
the remedial action.
42 U.S.C. § 9613(g)(2)(A)-(B). The term removal in this context means “the cleanup or removal
of released hazardous substances from the environment, such actions as may be necessary taken
in the event of the threat of release of hazardous substances into the environment, such actions as
may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous
substances, the disposal of removed material, or the taking of such other actions as may be
necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the
environment, which may otherwise result from a release or threat of release.” 42 U.S.C. §

9601(23). The term remedial, on the other hand, means “those actions consistent with permanent
remedy taken instead of or in addition to removal actions in the event of a release or threatened
release of a hazardous substance into the environment, to prevent or minimize the release of
hazardous substances so that they do not migrate to cause substantial danger to present or future
public health or welfare or the environment.” 42 U.S.C. § 9601(24). While the elements of a
removal action and remedial action may overlap, removal actions typically “cost less, take less
time, and are geared to address an immediate release or threat of release of a hazardous substance”
whereas remedial actions are “usually permanent responses that address more extraordinary
environmental dilemmas.” Cytec Indus., Inc. v. B.F. Goodrich Co., 232 F. Supp. 2d 821, 833 (S.D.

Ohio 2002). In some cases, “a response action may constitute both a removal and a remedial
action, and a court is not constrained to find either term applicable at the expense of the other.”
Id.
Here, Defendants argue that the environmental cleanup at the Plant, which began in 1989
and continues today, constitutes a remedial action, given the long-term, permanent nature of the

cleanup and the extensive oversight by the EPA under the Consent Decree. See Complaint, Doc.
78 at 10 (“Environmental cleanup at the Portsmouth Site began in 1989, has been continuous, and
continues today.”). Because the six-year statute of limitations for a remedial action commences
when on-site construction is initiated, Defendants maintain that Plaintiffs’ Complaint, which was
filed on May 26, 2019, is untimely.

Plaintiffs disagree, arguing that their Complaint was timely filed whether the response
action at the Plant is a remedial action or a removal action. According to Plaintiffs, this is because
neither removal nor remedial activities have begun “offsite.” Stated differently, though Plaintiffs
acknowledge that the Plant is the source of the emissions at issue in this case, they suggest that the
response costs they incurred were based on actions taken outside the physical boundary of the
Plant, and thus, the statute of limitations do not begin to run until cleanup begins in those areas.
The Court, however, finds no basis in the law for such a distinction and Plaintiffs fail to provide
anything more than a single sentence in support of their argument.

Alternatively, Plaintiffs argue that if the statute of limitations period has commenced, the
triggering event did not take place until July 3, 2015, the day on which the Department of Energy
issued its final decision formally identifying a “selected remedy” for the environmental cleanup at
the Plant. In doing so, Plaintiffs claim that an action cannot be considered remedial until after that
action is formally adopted. But critically, “there is no support in the statute for the rule that

remedial action cannot begin until the EPA or another lead agency issues a final, written approval
of the remedial design for the site.” Am. Premier Underwriters, Inc. v. Gen. Elec. Co., 866 F.
Supp. 2d 883, 892 (S.D. Ohio 2012). Such a rule would “lead to the absurd result that actions
brought by private parties to recover response costs in which no governmental agency was
involved in the cleanup could never be classified as remedial actions because no lead agency would
ever issue a final plan for the permanent remedy.” Id. Even the Sixth Circuit has declined to adopt
such a bright-line rule. GenCorp, Inc. v. Olin Corp., 390 F.3d 433, 444-45 (6th Cir. 2004)
(declining to adopt bright-line rule that a remedial action can occur only after the final remediation
plan is adopted). Hence, contrary to Plaintiffs’ beliefs, long-term, permanent actions taken before
the DOE finalized its remedial plan in 2015 may still constitute a remedial action under the
CERCLA.

Finally, Plaintiffs claim that several removal actions took place at the Plant in April 2010,
were adopted by the DOE’s finalized remedial plan in July 2015, and have continued through at
least December 2016. For example, Plaintiffs contend that the following removal actions occurred:
“infrastructure modifications, draining liquids, hazard abatement, asbestos removal, removal of
recyclable equipment, work area improvements, and utility reconfigurations (including
installation).” See Doc. 98 at 52-53. As such, Plaintiffs argue that the three-year statute of
limitations associated with those actions had not elapsed when they filed their Complaint in May

2019. See 42 U.S.C. § 9613(g)(2)(A) (providing that an initial action for recovery of costs must
be commenced, for a removal action, within 3 years after completion of the removal action).
Although the line between a removal action and a remedial action is often blurred, “it is
critical to view the timing of the activity in the larger context of all the activity taking place with
regards to the site.” Am. Premier Underwriters, Inc., 866 F. Supp. 2d at 899. Here, Plaintiffs
concede that the “removal” actions referenced above were adopted by, and thus, consistent with
the DOE’s July 2015 permanent remedial plan. See GenCorp., Inc., 390 F.3d at 444 (“The salient
point here is that CERCLA’s definition of ‘remedial action’ imposes a separate requirement on the
term: ‘remedial action’ encompasses only ‘those actions consistent with [the] permanent remedy
taken . . . to prevent or minimize the release of hazardous substances,’ and unless ‘remedial action’

meeting this requirement has begun, the statute-of-limitations-triggering event cannot occur.”).
Further, long-term cleanup at the Plant -- as Plaintiffs allege in their Complaint -- was taking place
as early as 1989. See Doc. 78 at 1989. The Court, therefore, concludes that the response actions
Plaintiffs claim took place at the Plant beginning in April 2010 do not change the nature of this
environmental cleanup from a long-term, permanent remedial action, with a six-year statute of
limitations beginning in 1989, to a removal action, with a three-year statute of limitations window
triggered in December 2016. Because Plaintiffs did not bring this CERCLA action within six
years of remedial actions commencing at the Plant, their claim is untimely. For this additional

reason, Count Two of the Complaint is DISMISSED.
D. Non-Radioactive State Law Claims (Count Four)
In Count Four (A) through (E) of the Complaint, Plaintiffs bring state law claims for
negligence/gross negligence, trespass, nuisance, ultra-hazardous activity, and medical monitoring.
Each of these claims is predicated on the possibility that Plaintiffs’ properties were contaminated
and damaged by non-radioactive waste, as opposed to the radioactive waste alleged in their Price-
Anderson Act claim. Defendants contend that Plaintiffs’ state law claims must be dismissed for
several reasons: (1) Plaintiffs do not plausibly allege that their properties have been impacted by
non-radioactive materials; (2) Plaintiffs fail to allege how any non-radioactive hazardous

substances migrated from the Plant onto their properties; (3) Plaintiffs have not asserted any
plausible damages; (4) Plaintiffs fail to identify an abnormally dangerous activity that Defendants
engaged in regarding non-radioactive materials; and (5) medical monitoring is not an independent
cause of action.
1. Whether Plaintiffs Allege a Claim for Trespass (Count Four (B))
“Trespass is the unlawful entry upon the property of another,” the essential elements being
“(1) an unauthorized intentional act, and (2) entry upon land in the possession of another.” Green,
2008 WL 4449065, at *3. Additionally, “[t]o state a plausible airborne particle trespass claim, a
plaintiff must allege that the defendant’s emitting practices contaminated or substantially damaged
her property.” Elmer v. S.H. Bell, 127 F. Supp. 3d 812 (N.D. Ohio 2015).
Here, Plaintiffs have asserted that reports from the DOE, NIOSH, and EPA confirm that
Defendants released a combination of radioactive and hazardous contaminants from the Plant into
the water, air, and soil. Doc. 78 at 11. These contaminants included uranium, depleted uranium,

neptunium, plutonium, cesium, thorium, radium, toxic materials, heavy metals, polychlorinated
biphenyls, trichloroethylene, and other organic and inorganic materials. Id. at 19. Plaintiffs allege
that the wind carried these contaminants from the Plant to properties in the surrounding area. Id.
at 2.
Additionally, Plaintiffs maintain that recent scientific testing shows that two of their
properties have been contaminated by these toxic materials and a third is within the zone of impact
of this contamination. Id. at 4-5. Further, Plaintiffs claim substantial damages to their property by
way of the fact that counties immediately surrounding the Plant have the highest cancer rates in
the state of Ohio. Id. at 12.; see Abrams v. Nucor Steel Marion, Inc., 694 F. App’x 974, 979-80

(6th Cir. 2017) (“[A] plaintiff may establish substantial physical damage to, or interference with,
his property by demonstrating that the concentration of an invading contaminant on his property
is likely to cause harm to human health.”). These allegations are sufficient for the Court to draw
the inference at this stage that each of the Plaintiffs sustained a cognizable injury.
Finally, that Plaintiffs allege all Defendants are liable for this contamination is of no
moment. Plaintiffs are claiming damages stemming from contaminants that have been released
from the Plant between 1993 and present day, and each of the Defendants have assumed control
over that Plant at some point during this period. It would be virtually impossible at this stage for
Plaintiffs to tie these releases to a particular Defendant without the benefit of discovery. It is
enough that Plaintiffs have alleged a specific timeframe. Accordingly, the Court finds that
Plaintiffs have stated a plausible claim for trespass in Count Four (B) of the Complaint. Cf.
Bellafaire v. Town of Wheatfield, 401 F. Supp. 3d 405, 418 (W.D.N.Y 2019) (Finding Plaintiffs
did not state a plausible claim for trespass where “Plaintiffs allege that an unspecified Defendant
deposited or caused to be deposited an unspecified substance on, in, or underneath Plaintiffs’

properties at an unspecified time which caused unspecified damage.”).
2. Whether Plaintiffs Allege a Claim for Private Nuisance (Count 4 (C))
Under Ohio law, nuisance is “a distinct civil wrong, consisting of anything wrongfully
done or permitted which interferes with or annoys another in the enjoyment of his legal rights.”
Green, 2008 WL 4449065, at *1. A private nuisance is “a nontrespassory invasion of another’s
interest in the private use and enjoyment of land.” Id. at 2. To be actionable, “the invasion must
be either (a) intentional and unreasonable or (b) unintentional but caused by negligent, reckless, or
abnormally dangerous conduct.” Id. Further, under Ohio law, “a plausible claim for private
nuisance requires a plaintiff to allege an injury that is real, material, and substantial.” Elmer, 127

F. Supp. 3d at 825.
Here, the same allegations and injury that form the basis for Plaintiffs’ trespass claim in
Count Four (B) apply to their private nuisance claim in Count Four (C). See Brown v. Whirlpool,
996 F. Supp. 2d 623, 640 (N.D. Ohio 2014) (“Traditionally, an intrusion on property by airborne
particulates was actionable under a nuisance claim but did not constitute a trespass. However,
many courts, including courts in Ohio, now recognize that an invasion of airborne particulates may
interfere with a complainant’s interest in exclusive possession [of her property] and may therefore
constitute a trespass.”) (internal quotations and citations omitted). Certainly, the intentional
production and/or emission of toxic materials at the Plant, coupled with the resulting
contamination of Plaintiffs’ properties, can constitute an unreasonable invasion. Accordingly, the
Court finds that Plaintiffs have pled an adequate claim for private nuisance in Count Four (C) of
the Complaint.
3. Whether Plaintiffs Allege a Claim for Negligence/Gross Negligence (Count Four (A))
As an initial matter, it is unclear whether Plaintiffs are proceeding on their

Negligence/Gross Negligence claim in Count Four (A) as an independent cause of action or as one
intertwined with their Private Nuisance claim. But to the extent Plaintiffs do pursue an
independent negligence claim under Ohio law, they “must show the existence of a duty, a breach
of that duty, and that the breach of that duty proximately caused [Plaintiffs’] injury.” Green v.
Begley, Co., 2008 WL 4449065, at *3 (S.D. Ohio Sept. 29, 2008).
Here, Plaintiffs allege that Defendants had a duty to process, handle, store, and dispose of
hazardous substances in safe, legal manner. Doc. 78 at 30. Additionally, Plaintiffs allege that
Defendants had a duty to prevent such substances from being discharged or released in a manner
that could harm Plaintiffs, and that Defendants had a duty to warn or notify Plaintiffs when such

releases occurred. Id. Plaintiffs contend that Defendants breached these duties by releasing toxic
substances into the community without warning. Id. at 30-31. Moreover, Plaintiffs maintain that
their property was damaged by this breach because the presence of these contaminants is likely to
increase their risk of cancer, which is consistent with findings in the community. The Court finds
these allegations sufficient to state a plausible claim for negligence/gross negligence. See Green,
2008 WL 4449065, at *3 (“Plaintiff alleges that Defendant had a duty to handle, store, and dispose
of chemicals used in the dry cleaning process in a reasonable manner to insure safety to employees,
customers, and the general public. Plaintiff alleges that Defendant breached that duty by failing
to exercise reasonable care, and as a direct and proximate result, Plaintiff suffered economic loss.
Based on the foregoing, the Court finds that Plaintiff has adequately stated a claim for negligence
under Ohio law.”).
4. Whether Plaintiffs Allege a Claim for Ultra-Hazardous Activity (Count Four (D))
The elements of strict liability for harm caused by abnormally dangerous activity are: “(1)
One who carries on an abnormally dangerous activity is subject to liability for harm to the person,

land or chattels of another resulting from the activity, although he has exercised the utmost care to
prevent the harm; and (2) this strict liability is limited to the kind of harm, the possibility of which
makes the activity abnormally dangerous.” Green, 2008 WL 4449065, at *3.
Throughout the Complaint, Plaintiffs have alleged that the release of radioactive and toxic
materials stemming from the production and/or remediation of uranium at the Plant has damaged
their properties by exposing them to a contaminant likely to cause harm to their health. Plaintiffs,
therefore, implicitly rely on this abnormally dangerous activity as the basis for their claim. See
Crawford v. Nat’l Lead Co., 784 F. Supp. 439, 443 (S.D. Ohio 1989) (“[W]e have no doubt that
Ohio courts would consider the production of uranium at the FMPC an abnormally dangerous

activity.”). Although Plaintiffs pursue this claim based only on the release of non-radioactive
materials, as opposed to radioactive waste, courts have still found that such releases can be the
type of harm which renders the operation of a uranium plant an abnormally dangerous activity.
See id. at 444 (“[T]he seepage of uranium and other dangerous materials onto surrounding
property, as alleged in the instant case, is the kind of harm which renders operation of the FMPC
abnormally dangerous. Imposition of strict liability under these circumstances is justified.”).
Hence, Plaintiffs have stated a plausible strict liability claim for ultra-hazardous activity under
Count Four (D).
5. Whether Medical Monitoring is an Independent Cause of Action (Count Four (E))
Finally, Defendants argue that Count Four (E) of the Complaint must be dismissed because
medical monitoring is not an independent cause of action. Plaintiffs concede this point. Thus, to
the extent Plaintiffs have asserted an independent claim for medical monitoring, Count Four (E) is
DISMISSED.

To be clear, however, “[a]lthough medical monitoring is not a cause of action, under Ohio
law, it is a form of damages for an underlying tort claim.” Elmer, 127 F. Supp. 3d at 825. Indeed,
“if a defendant’s conduct increased a plaintiff’s risk of suffering from a disease or illness, medical
monitoring may be ‘a compensable item of damage when liability is established under traditional
tort theories of recovery.’” Id. (quoting Day v. NLO, 851 F. Supp. 869, 880 (S.D. Ohio 1994)).
Therefore, if Plaintiffs establish liability and an increased risk of disease on an underlying tort
claim, they may be entitled to medical monitoring as a remedy.
E. Declaratory Judgment Claim (Count Three (A))
In Count Three (A), Plaintiffs seek a declaratory judgment clarifying the rights and

obligations of the parties to each other. Defendants argue that the Court should dismiss this claim
as duplicative. The Court agrees.
The Declaratory Judgment Act provides that a district court “may declare the rights and
other legal relations of any interested party seeking such declaration, whether or not further relief
is or could be sought.” Miami Valley Mobile Health Servs., Inc. v. ExamOne Worldwide, Inc., 852
F. Supp. 2d 925, 938 (S.D. Ohio 2012) (quoting 28 U.S.C. § 2201(a)). While courts have the
discretion to decide whether to entertain a declaratory judgment action, they typically “deny
declaratory relief if an alternative remedy is better or more effective.” Grand Trunk Western R.
Co. v. Consolidated Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984)).
Here, Plaintiffs’ claims stemming from emissions at the Plant have already ripened into a
cause of action and Plaintiffs have sought damages under several alternative theories. In other
words, the question of whether Defendants are liable for these emissions has already been placed
at issue, making Plaintiffs’ claims for damages a better and more effective remedy. Accordingly,
the declaratory judgment claim in Count Three (A) of the Complaint is DISMISSED as
duplicative of Plaintiffs’ other causes of action. See Miami Valley Mobile Health Servs., Inc., 852
F, Supp. 2d at 938-39 (“The validity and enforceability of the contracts have already been placed
at issue, and Plaintiffs’ claim for damages is a better and more effective remedy. The Court
therefore agrees with Defendant that the declaratory judgment claim is duplicative and should be
dismissed.”’).
V. CONCLUSION
For the reasons stated herein, the Court GRANTS IN PART and DENIES IN PART
Defendants’ Motion to Dismiss [#83]. Counts One, Two, Three (A), Alternative Count One (A)
through (E), and Alternative Count Three (B) are hereby DISMISSED. Further, Alternative Count
Three (C) is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
yes

CHIEF UNITED STATES DISTRICT JUDGE
DATED: July 31, 2020

32

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10375971. Public record. Not legal advice.