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Dailey v. Bridgeton Landfill, LLC

United States District Court, E.D. Missouri, Eastern Division

October 27, 2017

MICHAEL DAILEY, et al., Plaintiffs,
BRIDGETON LANDFILL, LLC, et al., Defendants.



         Husband and wife plaintiffs, Michael and Robbin Dailey, seek damages and injunctive relief for radioactive contamination of their home allegedly caused by neighboring West Lake Landfill, located in North St. Louis County, Missouri. The Daileys assert that their property has been damaged by soil, dust, and air contamination from improper generation, handling, storage, and disposal of radioactive materials by six corporate defendants. The defendants consist of landfill owners and operators, and radioactive waste generators and disposers.

         The Daileys filed suit in St. Louis County Circuit Court, pleading various state-law tort theories. Defendants removed the action to this court arguing that the allegations arise under federal law - specifically the Price-Anderson Act (PAA) as amended in 1988, 42 U.S.C. § 2210, et seq. - which provides a federal compensation regime for damages resulting from a nuclear incident. After removal, the Daileys filed a motion to remand but later withdrew it and filed a First Amended Complaint with a PAA claim and various state-law tort claims. Now before the Court are defendants' multiple motions to dismiss the amended complaint. Defendants argue that the amended complaint fails to properly allege a claim under the PAA, that the Daileys' state-law claims are preempted by federal law, and that medical monitoring and emotional distress claims are not allowed here because no bodily injury is alleged. Defendant Mallinckrodt joins the other defendants' arguments for dismissal but also seeks dismissal of the amended complaint on the grounds that it fails to provide Mallinckrodt with fair notice, and it fails to plead a sufficient nexus between Mallinckrodt and the alleged damages.

         Although the Eighth Circuit has not addressed the issue of PAA preemption of state-law claims, numerous other circuit courts have found that the PAA is the sole avenue for recovery when a public liability action for a nuclear incident is plead. I agree. Therefore, the Daileys' state-law tort claims for nuisance and alternatively, for strict liability, shall be dismissed. However, the amended complaint withstands dismissal under Rule 12(b)(6) as to the sufficiency of the pleading of a PAA claim and as to fair notice to defendant Mallinckrodt. But because the Daileys only allege property damage and not bodily injury, their requests for medical monitoring and emotional distress relief are not allowed under the PAA and will be stricken.


         From 1942 to 1957, under contract with United States government organizations, defendant Mallinckrodt LLC processed natural uranium into various uranium compounds at a facility located in downtown St. Louis, Missouri. The processing was part of the Manhattan Project - a United States research project designed to develop the first nuclear weapons. The first step in the processing, called “milling, ” generated a sandy waste material known as “mill tailings, ” which contain radioactive decay products. In the late 1940's, the Manhattan Project acquired an additional tract of land near Lambert Airport - the St. Louis Airport Site (SLAPS) - for storage of mill tailings and other scrap waste from the uranium processing occurring at the downtown site.

         Subsequently, some mill tailings were buried at SLAPS near Coldwater Creek and others were moved in the 1960's from SLAPS to a storage site on Latty Avenue in Hazelwood, Missouri. Around the same time, defendant Cotter Corporation purchased mill tailings from both SLAPS and Latty Avenue. Cotter eventually mixed the tailings with radioactively contaminated soil and sold the mixture as “daily cover” for landfill operations. In 1973, Cotter disposed of the daily cover mixture by dumping it at West Lake Landfill located in Bridgeton, Missouri. According to the Daileys, the Landfill was never an adequate storage or disposal site for radioactive waste, and therefore resulted in contamination of the surrounding communities. As of December 31, 2004, the Landfill stopped accepting waste and is now only used as a transfer station. The Landfill is currently under the regulation of the Environmental Protection Agency (EPA) pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

         In 1999, plaintiffs Michael and Robbin Dailey purchased a home on a parcel of real property located in Bridgeton, Missouri adjacent to the Landfill.[1] The Daileys allege that their property is contaminated with radioactive material that has migrated over from the Landfill. Samples of soil from their yard, and dust from within their home, confirm a highly-elevated presence of radioactive particles. Trees in the vicinity of their property contain radiological and organic contamination. Air samples from their property are contaminated by radioactive Radon gas emissions and are frequently offensive in odor. Surface-water runoff that migrates to their property from the Landfill contains radioactive contamination. The Daileys allege that this off-site contamination also occurred from careless and reckless hauling of the radioactive waste, which resulted in spills during transport. In 2016, the Daileys learned of this radioactive waste contamination, which has resulted in the loss of use and enjoyment of their property and diminished their property value.

         The Daileys bring this suit against six defendants, who can be divided into two categories: (1) “Landfill Defendants” are owners and operators of the Landfill including defendants Bridgeton Landfill, LLC; Republic Services, Inc.; Allied Services, LLC; and Rock Road Industries, Inc., and (2) “Radioactive Waste Defendants” are waste generators and disposers including defendants Mallinckrodt LLC and Cotter Corporation.

         Mallinckrodt filed a motion to dismiss for failure to state a claim based on Rules 8(a) and 12(b)(6), Fed. R. Civ. P., and also joined the motion to dismiss filed by the five other defendants. According to Mallinckrodt, the amended complaint: (1) fails to state a valid PAA claim in that it does not allege radiation exposure in excess of the federal dosage limits; (2) requires dismissal of state-law claims preempted by the PAA and federal law; and (3) fails to plead a plausible case for causation of damages by Mallinckrodt and fails to provide fair notice of the factual claims against Mallinckrodt. The other defendants join Mallinckrodt's first two arguments concerning preemption and standard of care, and also argue that medical monitoring and emotional damages are not recoverable under the PAA in this case.

         This case is similar to many other cases that have been brought in this district by a neighbor of West Lake Landfill based on alleged odor and property contamination. Some of the previously-filed cases are still pending, and others have been dismissed after settlement. Some of the arguments before the court in these motions to dismiss were raised by the same defendants in earlier cases. See McClurg v. MI Holdings, Inc., 933 F.Supp.2d 1179 (E.D. Mo. 2013); McClurg v. Mallinckrodt, Inc., No. 4:12 CV 361 AGF, Nuclear Reg. Rep. P 20, 755 (E.D. Mo. Feb. 27, 2015).


         I. Motion to Dismiss Standard

         The purpose of a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., is to test the legal sufficiency of the complaint. When considering a 12(b)(6) motion, the court assumes the factual allegations of the complaint are true and construes them in favor of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

         Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” In Bell Atlantic Corp. v. Twombly, the Supreme Court clarified that Rule 8(a)(2) requires complaints to contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” 550 U.S. 544, 555 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Specifically, to survive a motion to dismiss, a complaint must contain enough factual allegations, accepted as true, to state a claim for relief “that is plausible on its face.” Twombly, 550 U.S. at 570.

         II. The PAA and Nuclear Safety

         In 1957, Congress passed the Price-Anderson Act (PAA), 42 U.S.C. § 2210 et seq., for the dual purposes of protecting the public and encouraging the development of the atomic energy industry. Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 64 (1978) (quoting 42 U.S.C. § 2012(i)). Before the PAA, private utilities were reluctant to enter the field of nuclear power because of the risk of potentially high liability in the case of a nuclear incident. The PAA limited the civil liability of nuclear plant operators and provided federal funds to help cover damages from nuclear accidents. Id. Since its enactment, the PAA has been amended three times. The most recent amendments in 1988 created federal court jurisdiction to adjudicate public liability actions arising from nuclear incidents. 42 U.S.C. § 2014(hh); O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1095-96 (7th Cir. 1994). However, even prior to the 1988 Amendments, the Supreme Court confirmed Congress' intent that “the safety of nuclear technology [be] the exclusive business of the federal government.” Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 208 (1983).

         Under the PAA, a “public liability action” is defined as “any suit asserting public liability.” 42 U.S.C. § 2014(hh). “Public liability” is “any legal liability arising out of or resulting from a nuclear incident.” Id. § 2014(w). A “nuclear incident” involves “bodily injury, sickness, disease, or 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. § 2014(q). In summary, a “ ‘public liability action' is a suit in which a party asserts that another party bears any legal liability arising out of an incident in which the hazardous properties of radioactive material caused bodily injury, sickness, or property damage.” Cotrone ...

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