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Tenth Circuit Overturns Rocky Flats Class Action Property Owner Award

By Katherine Rahill

On September 3, 2010, the Tenth Circuit reversed a lower court's decision to award over $926 million to a class of property owners near the former Rocky Flats Nuclear Weapons Plant, a facility that produced nuclear weapon components, northwest of Denver, Colorado. The class of property owners claims that the former plant's operations released plutonium particles onto their property, thereby contaminating their property, endangering their health and lowering their property values. The Tenth Circuit, however, held that the plaintiffs had not adequately established a sufficient level of injury. The federal appellate court has remanded the case to the District Court with instructions to vacate the judgment and conduct further proceedings consistent with the appellate opinion. While the decision clearly has implications for similar types of claims under the Price-Anderson Act, it also speaks to the levels of injury some courts may require in non-nuclear toxic tort actions where plaintiffs allege property damage or loss of use of their property through trespass and nuisance actions.

The action is based on federal nuisance and trespass claims brought as a public liability action under the federal Price-Anderson Act against the former facility operators. The Tenth Circuit's reversal of the lower court's award hinged on the jury instructions regarding the level of injury the plaintiffs were required to establish at trial. A public liability action under the Price-Anderson Act is an action asserting liability resulting from a "nuclear incident." As a result, as a threshold issue, plaintiffs needed to prove that a "nuclear incident" had occurred. According to the court, by definition, establishing a "nuclear incident" requires a showing of one of the injuries enumerated in the statute. In the context of the Rocky Flats action, only two injuries were potentially viable claims - "loss of or damage to property" and "loss of use of property." Per the Court's opinion, contrary to the jury instruction on the issue, in order to establish "damage to property," the plaintiffs needed to show more than just the "mere presence" of plutonium but, instead, "that plutonium particles released from Rocky Flats caused a detectable level of actual damage to the class properties." Similarly, the Court found that, in order to establish "loss of use of property" based on increased health risks, the plaintiffs needed to make some estimate or calculation of the particular increased risk. Simply providing testimony that some immeasurable increased risk to human health resulted from the presence of plutonium was insufficient.

Although the threshold issue of whether plaintiffs had established a "nuclear incident" was sufficient grounds to reverse and remand the case, the Court analyzed the remaining issues brought up on appeal including the level of proof required to establish nuisance and trespass claims in particular. In doing so, the Court acknowledged the similarity of these claims to the threshold issues of "damage to property" and "loss of use" under the definition of "nuclear incident" and found that a similar level of proof was required to make a claim for trespass or nuisance.

Click here to obtain a copy of the Tenth Circuit's opinion.