Judge dismisses suit against NFS

Brad Hicks • Dec 27, 2012 at 9:41 PM

A federal judge last week dismissed a class-action lawsuit filed last year against Nuclear Fuel Services and its parent company that alleged “repeated releases of hazardous and radioactive substances” at the Erwin facility had led to injuries, property damage and emotional distress.

On Dec. 21, U.S. District Judge J. Ronnie Greer ordered that NFS’ motion to dismiss the plaintiffs’ claims be granted. It was also ordered that the plaintiffs’ motion to amend the original complaint be denied.

“We are pleased that the U.S. District Court ruled in our favor,” NFS President Joe Henry said in a release issued Thursday. “Although we recognize the possibility that the plaintiffs could seek to appeal the court’s decision, we consider this ruling to be an important decision for all defendants in the case. We remain committed to operating safely and securely, protecting our employees, the public and the environment. We look forward to a long future of manufacturing the fuel that keeps our nation safe.”

The lawsuit was filed in U.S. District Court in Greeneville in June 2011. In the original 40-page complaint, 13 of the 19 plaintiffs, including one former NFS employee, alleged they had developed various forms of cancer because of hazardous releases at the nearly 60-year-old facility. Two of the plaintiffs alleged the cancer deaths of relatives were caused by materials released from NFS. According to court documents, the number of plaintiffs increased to more than 140 individuals and organizations over the course of the case.

Along with NFS and Babcock & Wilcox, NFS’ parent company since 2008, other defendants named in the complaint included W.R. Grace & Co., which jointly funded the formation and development of NFS in collaboration with the Davidson Chemical Co., and the Chevron Co., the predecessors of which exercised ownership and operational control of NFS from 1969 to 1986.

“Throughout the operational history of these facilities, defendants have caused the release of radioactive, hazardous and toxic substances into the surrounding environment,” the originally filed complaint said. “These releases have contaminated the air, soil, surface water and ground water in the surrounding communities. The harm directly and proximately caused by defendants includes property damage and personal injuries.”

In October 2011, attorneys for the defendants filed a motion to seek dismissal of the plaintiffs’ complaint for failure to state a claim on which relief could be granted.

Before the complaint was filed in June 2011, attorneys with Greeneville-based Rogers, Laughlin, Nunally, Hood & Crum; South Carolina-headquartered Motley Rice; and New York-based Napoli Bern Ripka & Associates held town hall meetings in Unicoi County to provide legal information to area residents to those possibly interested in taking legal action against NFS. These firms also represented plaintiffs in the case.

Marc Bern with Napoli Bern Ripka & Associates said Thursday that he had no comments on Greer’s ruling, other than to say attorneys are evaluating the decision and “are keeping our options open, including appealing the case.”

Greene County resident and plaintiff Park Overall said plaintiffs will likely look at appealing Greer’s decision in the future.

“It’s a blow, I’ll be honest with you, it’s a blow, but I don’t blame us,” Overall said of the dismissal. “I don’t think we could have done anything differently, and we can appeal, which I think (Greer) has made a point of here, and so that’s good. It’s just that right now, with the holidays, we were blindsided, really blindsided. I’m sure that it will serve to empower and embolden us, but right now it was just a kick in the teeth.”

Overall said she found Greer’s ruling to be “limited.” Although she commended the work of John Milburn Rogers with Rogers, Laughlin, Nunally, Hood & Crum, she said other attorneys for the plaintiffs failed to provide proper information regarding radioactive releases and limits collected by plaintiffs to the court. Overall said should plaintiffs move forward with an appeal, they will likely do so with different attorneys.

“It’s unfortunate that our lawyers were incompetent,” Overall said. “The attorneys were incompetent because we gave them all of the data.”

In October, the Nuclear Regulatory Commission announced that it is sponsoring a pilot cancer risk study to be carried out by the National Academy of Sciences at seven NRC-licensed facilities. NFS is to be included in this study.

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