Nuclear Nuisance Case Finally Nears Conclusion

     DENVER (CN) – A 25-year-old challenge to pollution from a nuclear-weapons plant has boiled down to a nuisance claim that must be resolved, the 10th Circuit ruled Tuesday.
     The well-written decision notes that the 1990 filing of the case marks only a segment of a dispute that stretches back to the Cold War when Dow Chemical began operating out of the Rocky Flats plant, just 16 miles from downtown Denver, in 1952.
     Rockwell International had taken over operations by the time the plant down shut down in 1989 when an FBI raid revealed that plant workers had mishandled radioactive waste for years.
     In the wake of the government’s criminal action, the plant’s neighbors brought their civil complaint, led by plaintiff Merilyn Cook, seeking damages for their exposure to carcinogens and obliterating their property values.
     It took 15 years for the case to finally go to trial, but a jury’s $926 million verdict did not remain in place long.
     In 2010, the 10th Circuit concluded that the damages could not stand because they relied on violations of the Price-Anderson Act, which allows plant owners to be held liable for a “nuclear incident.”
     The plaintiffs have since conceded that a nuclear incident did not occur, “but that does not mean the defendants are insulated from any liability,” Judge Neil Gorsuch wrote for a three-panel of the federal appeals court Tuesday.
     Gorsuch and his colleagues had to revisit the case because the plaintiffs seek now to hold the plant operators liable under state nuisance law.
     Though the trial court sided with the companies, the 10th Circuit vacated that judgment Tuesday, saying the “defendants have identified no lawful impediment to the entry of a state law nuisance judgment on the existing verdict.”
     “They have shown no preemption by federal law, no error in the state law nuisance instructions, no mandate language specifically precluding this course,” Gorsuch wrote. “No other error of any kind is even now alleged.
     Denouncing the “injustice” of now proceeding to a new trial after all this time, the appellate panel called for the lower court to reach a “judgment on the existing nuisance verdict promptly, consistent with resolving the outstanding class action question, wary of arguments that have already been rejected or forfeited.”
     “This long lingering litigation deserves to find resolution soon,” Gorsuch added.
     Judge Nancy Moritz concurred in the judgment to remand but split from the panel on various details.
     “The potential for retrial of the nuisance claim requires consideration of the district court’s alternative ruling that the PAA preempted the plaintiffs’ state law claims,” she wrote. “On that issue I disagree with the majority’s conclusion that the law of the case precluded the defendants’ preemption argument. But consistent with the majority, I would reject that argument.”

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