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Crawford v. National Lead Co.

Citation: 19 ELR 21174
No. No. C-1-85-0149, 784 F. Supp. 439/29 ERC 1048/(S.D. Ohio, 02/13/1989)

The court holds that the government contractor defense does not immunize the Department of Energy and its contract-operator of a nuclear weapons plant from tort liability, because they violated applicable environmental laws. The court first holds that operating the plant is an abnormally dangerous activity, given its handling of radioactive materials in an inappropriate place. The court then holds that if emotional distress and lowered property values due to the plant's radioactive emissions are proven, the elements for applying a theory of strict liability are present. In Ohio emotional distress and lowered property values are sufficient harm to support a claim of strict liability, and the seepage of radioactive materials onto plaintiffs' property is the kind of harm that makes operation of the plant abnormally dangerous. The court holds that if emotional distress and lowered property values are proven, the Energy Department and its contractor are also liable for maintaining a private, absolute nuisance. In doing so, the court follows the same reasoning as for its holding that strict liability applies. Moreover, although the plant cannot be a public nuisance, it may nevertheless be a private nuisance because it is authorized by competent legal authority. The court next holds that the government contractor defense does not bar these state tort law claims. The government contractor defense immunizes a contractor who acted pursuant to instructions from the federal government. To apply, the defense requires uniquely federal interests and a significant conflict between federal policy and the operation of state law. Although the operation of a nuclear weapons plant is a uniquely federal interest, if doing so violatesapplicable environmental law and these violations give rise to state law tort claims, there is no conflict between federal policy and the operation of state law. The court holds that the plant violated the Refuse Act of 1899 (§ 13 of the Rivers and Harbors Act) when it discharged uranium into the Great Miami River. The Refuse Act's streets and sewers exception does not include industrial waste. Moreover, the court holds that the plant violated federal regulations for maximum permissible releases of radioactive material into the environment. Finally, the court holds that recent amendments to the Price-Anderson Act do not bar punitive damages. The amendments became effective on August 20, 1988, and have no application to this case.

Counsel for Plaintiffs
Stanley M. Chesley, Louise Roselle
1513 Central Trust Tower, Fourth & Vine Sts., Cincinnati OH 45202
(513) 621-0267

Counsel for Defendant
Jake J. Chavez, Russell M. Young
U.S. Department of Energy
Forrestal Bldg., 1000 Independence Ave SW, Washington DC 20585
(202) 586-8713

Donetta D. Wiethe, Ass't U.S. Attorney
220 U.S. Post Office & Courthouse, Fifth & Walnut Sts., Cincinnati OH 45202
(513) 684-3711