Boggs v. Divested Atomic Corp.

141 F.R.D. 58, 1991 U.S. Dist. LEXIS 17699, 1991 WL 259789
CourtDistrict Court, S.D. Ohio
DecidedNovember 7, 1991
DocketNo. C-2-90-840
StatusPublished
Cited by78 cases

This text of 141 F.R.D. 58 (Boggs v. Divested Atomic Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 1991 U.S. Dist. LEXIS 17699, 1991 WL 259789 (S.D. Ohio 1991).

Opinion

OPINION AND ORDER

KINNEARY, District Judge.

I. INTRODUCTION

Teresa Boggs, a resident of Lucasville, Ohio, lives within six miles of the Portsmouth Gaseous Diffusion Plant. The •plant, which is located in rural Pike County, Ohio, approximately four miles from the town of Piketon, processes radioactive materials for the United States Department of Energy. It began operating in the early 1950’s and has continuously produced enriched uranium since that time.

Ms. Boggs and the other named plaintiffs, residents of either Pike or Scioto Counties who also live within six miles of the plant, claim that they and their properties have been exposed to radioactive materials and non-radioactive hazardous wastes emitted from the Portsmouth plant. They have asked this Court to certify a class of all similarly-situated persons in order that they may present, on a classwide basis, claims for emotional distress, diminution in the value of their real property, medical monitoring for early cancer detection, and injunctive relief against further unlawful emissions of hazardous substances from the plant. The parties have exhaustively briefed the class certification motion, filed numerous depositions, and presented extensive oral argument to the Court on October 3, 1991. For the following reasons, plaintiffs’ motion to certify a class consisting of all persons who live, rent, or own property within a six-mile radius of the boundaries of the Portsmouth Gaseous diffusion plant will be granted.

II. FACTUAL BACKGROUND

The first amended complaint identifies eight individuals as representative of the following class of plaintiffs:

“All persons, firms, or entities who were residents, property owners or lessees of property within a radius of six miles from the boundary of the Portsmouth Gaseous Plant (“the Portsmouth Plant”), which proximity caused such persons and property to be subject to the harmful effects of airborne particulates and runoff water from defendants’ operations at the Portsmouth Plant.”

Although eight class representatives are identified in the first amended complaint, only six of those are designated in the motion for class certification as class representatives: Teresa Boggs, of Lucasville, Ohio; Sarah Chandler, Ellen Ison, and Carol Jenkins, of Piketon, Ohio; Wayne Chandler, of Beaver, Ohio; and Karen Scott, of Jasper, Ohio. The named defendants are Divested Atomic Corporation, which, along with its predecessor, Goodyear Atomic Corporation, operated the plant until November 16, 1986, and Martin Marietta Energy Systems, which has operated the plant after that date. Goodyear Tire & Rubber, which is the parent company of Divested Atomic, is also a defendant.

Although the parties have submitted a great deal of factual material, and defendants argued the facts of the case at length, there are relatively few facts that are crucial to class certification. Essentially, the facts can be subdivided into two categories: those relating to class definition (that is, evidence that something oc-curred to distinguish the members of the class from the general public), and to class size. The balance of the issues raised by this motion are primarily, if not completely, legal ones.

A. Class Definition.

The plaintiffs define the class as all persons living within a six mile radius of the boundaries of the Portsmouth Plant whose [61]*61persons or property have been exposed to radioactive or hazardous wastes released from the plant. The defendants claim that this definition of the class is improper because, in their view, it requires the court to decide that each person living within this geographic area, or owning property within it, has suffered some actual injury from exposure to hazardous or radioactive wastes. According to defendants, a trial on the merits would be needed in order to identify persons with actionable injuries. Defendants also argue strenuously that no proposed class member has suffered a legally cognizable injury because there is no proof that anyone living close to the plant has received more than a miniscule, and medically insignificant, additional dose of radiation. They have included this argument in a recently-filed summary judgment motion.

Plaintiffs argue that defendants misapprehend the definition of the class. They agree that whether certain people have actionable injuries from exposure is a merits issue. However, for purposes of class membership, they assert that it is the fact of exposure, in some amount, rather than proof of a compensable injury that is important. The inquiry then becomes whatever plaintiffs have shown that emissions of potentially harmful materials, without yet deciding what is a harmful quantity of such materials, reasonably may have reached persons and property within a six-mile radius of the plant. In other words, the Court must ask two questions: (1) is there any evidence that the plant has discharged radioactive or hazardous substances beyond its borders? And (2) if so, have those substances travelled up to six miles? The present record suggests the answers to both questions is yes.

1. Emissions

The parties agree that, from time to time, radioactive materials have escaped into the air and have left the boundaries of the plant. Although defendants downplay the significance of these releases, they do not deny that some have occurred.

For example, a report dated June 9,1978, and prepared by Goodyear Atomic Corporation, refers to “[ujranium lost to airborne and waterborne effluent points____” It notes an increase in uranium lost from airborne effluent from 1975 to 1977, and also describes a liquid effluent loss of uranium and uranium “daughters” (i.e. other radioactive elements such as thorium and protactinium which are produced through natural radioactive decay of uranium). The report also shows releases of technetium, a fission product, beginning in 1975. Finally, it notes that only “sparse radiological data were accumulated before 1968,” implying the possibility of undetected or unmeasured releases before that time.

Next, according to a Department of Energy Investigative Report issued on June 1, 1978, a 14-ton cylinder containing uranium hexaflouride, a radioactive compound, fell from a “straddle carrier” on March 7, 1978. The cylinder ruptured, and 21,125 pounds of the compound, in gaseous form, escaped. Investigations determined that cylinders had been dropped before, and that this was not the first time that radioactive gas had escaped as a result. Investigators concluded that an airborne plume of gas crossed the boundaries of the plant, and that about 1,500 pounds of uranium was released through the west drainage ditch. They did not believe that any harmful level of exposure had been reached, although there was a report of a fish kill in the west drainage ditch.

It also appears that some amount of radioactive material is discharged from routine plant operations. For example, Geoffrey Sea, a former plant employee, described in deposition testimony the operation of “purge vents” through which radioactive materials were released. Thus, for purposes of this class action motion, plaintiffs have proved that radioactive materials have left the plant site.

2. Dispersion

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fox v. Saginaw, County of
E.D. Michigan, 2025
Ragouzis v. Madison House Condominium Owners Assn., Inc.
2025 Ohio 2797 (Ohio Court of Appeals, 2025)
Tillman v. Highland Industries Inc
D. South Carolina, 2021
BLH v. S.C. Dep't of Soc. Servs.
814 S.E.2d 638 (Court of Appeals of South Carolina, 2018)
Price v. Medicaid Director
310 F.R.D. 345 (S.D. Ohio, 2015)
Smith v. Conocophillips Pipe Line Co.
298 F.R.D. 575 (E.D. Missouri, 2014)
Powell v. Tosh
280 F.R.D. 296 (W.D. Kentucky, 2012)
Jackson v. Unocal Corp.
262 P.3d 874 (Supreme Court of Colorado, 2011)
Salvagne v. Fairfield Ford, Inc.
264 F.R.D. 321 (S.D. Ohio, 2009)
Mell v. Anthem, Inc.
264 F.R.D. 312 (S.D. Ohio, 2009)
Sher v. Raytheon Co.
261 F.R.D. 651 (M.D. Florida, 2009)
Jackson v. Unocal Corp.
231 P.3d 12 (Colorado Court of Appeals, 2009)
Ross v. Abercrombie & Fitch Co.
257 F.R.D. 435 (S.D. Ohio, 2009)
Fowler v. Ohio Edison Co., 07-Je-21 (12-11-2008)
2008 Ohio 6587 (Ohio Court of Appeals, 2008)
Burkhead v. Louisville Gas & Electric Co.
250 F.R.D. 287 (W.D. Kentucky, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
141 F.R.D. 58, 1991 U.S. Dist. LEXIS 17699, 1991 WL 259789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boggs-v-divested-atomic-corp-ohsd-1991.