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CAREY v. KERR-MCGEE CHEM. CORP.

March 17, 1998

JESSE and DOROTHY CAREY, married individuals; NICHOLAS and DEBORAH DASSION, married individuals, REBEKAH DASSION, a minor by NICHOLAS DASSION her father, as natural guardian and next friend, and MIHAILO and JANET BOZIDAREVIC, married individuals, on behalf of themselves and all persons similarly situated, Plaintiffs,
v.
KERR-McGEE CHEMICAL CORPORATION, a Delaware Corporation, and KERR-McGEE CORPORATION, a Delaware Corporation, Defendants.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiffs Jesse and Dorothy Carey, Nicholas and Deborah Dassion, Rebekah Dassion, by her father Nicholas Dassion as natural guardian and next friend, and Mihailo and Janet Bozidarevic have filed a five count putative class action complaint against defendants Kerr-McGee Chemical Corporation and its parent, Kerr-McGee Corporation (collectively, "defendants") alleging property damage and personal injury resulting from thorium tailings produced at defendants' West Chicago facility. Counts I and II are for property damage, alleging continuing trespass and nuisance, respectively. Counts III, IV and V contain claims for both property damage and personal injury ("medical monitoring claims"), alleging strict liability for ultra-hazardous activity, negligence, and willful and wanton conduct. Defendant has moved for summary judgment on all counts based on the statute of limitations and laches. That motion addresses all claims against the adult defendants. In addition, defendants have moved to dismiss plaintiffs' claims for medical monitoring for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below defendants' motions are granted in part and denied in part.

 Facts

 This is the latest in a long line of lawsuits arising out of the thorium tailings produced at a rare earth facility (the "Facility") located in West Chicago. The Facility, a 43 acre site within the town of West Chicago, originally operated in 1931 by Lindsey Light and Chemical Co. and later by American Potash and Chemical Corp., was primarily engaged in extracting thorium from monazite ore. This extraction or "milling" resulted in large quantities of sand like low level radioactive by-products called thorium tailings. Defendants acquired the Facility in 1967 and ceased operations six years later in 1973. It is undisputed that prior to defendants' acquisition of the Facility, thorium tailings had been deposited at public locations, including Reed-Kepler Park, an 88 acre site owned by the City of West Chicago (the "City") and leased to the DuPage County Park District, the West Chicago sewage treatment plant, and a portion of a field adjacent to the West Chicago High School. In addition, Facility employees and area residents were allowed to remove tailings for use in landscaping and as landfill.

 In 1976 an anonymous call to a newspaper led to a Nuclear Regulation Commission ("NRC") investigation of all off-site waste contamination. This was the beginning of what became a massive investigation by both state and federal agencies, as well as the local and national news media. Despite plaintiffs' attempts to characterize it otherwise, it is uncontrovertible that from 1976 through the entire 1980s and into 1990-91, there was extensive, widespread publicity both in print and broadcast multimedia (local and national) of the thorium tailings problem and its potential hazards. The extent of the news coverage is far too staggering to detail fully in this opinion. Nevertheless, some detail is required to give perspective to both defendants' and plaintiffs' positions regarding the limitations issues.

 In July 1976 Dan Coyne, a City resident, filed a lawsuit against defendant alleging that the disposal of radioactive material at the Facility threatened the health and safety of West Chicago residents because of potential contamination of the water supply. The lawsuit, which was ultimately dismissed because the state law claims were preempted by federal law and the NRC authority, was reported in the July 12, 1976, edition of the Chicago Tribune. In September 1978 Argonne National Laboratories issued a report for the NRC entitled "Thorium Residuals in West Chicago, Illinois" based on tests conducted in 1976 through 1978. The report indicated 75 thorium residual areas in addition to the Facility, Reed-Kepler Park, the sewage treatment plant and other areas previously identified by the NRC. In November of that year the press reported that the United States Environmental Protection Agency ("EPA") had listed the Facility as a hazardous site, describing it as "hazardous to health." One month later, in December 1978, the City attorney asserted that all thorium deposits in West Chicago should be removed.

 In August 1979 a plan to decommission the Facility and encapsulate ("bury") the thorium on site was contested before the NRC. Debate raged for over a decade, with some residents vehemently opposed to the plan, arguing for the complete removal of all thorium.

 In October 1979 the Chicago Tribune published an article about the City, referring to it as "the radioactive capital of the Midwest." The article described the concerns of City residents. that radiation could pose a health threat, as well as defendants' and the NRC's contention that there was no public danger. Press reports throughout the remainder of 1979 documented the City's opposition to defendants' decommission plan.

 In 1980, both the State of Illinois and the City filed separate lawsuits in state court against defendants. Both suits received coverage in the local papers. Both suits were removed, to federal court and both generated considerable publicity over the next several years. Both suits were ultimately dismissed by the trial court based on federal preemption. On appeal, the Court of Appeals held that the state suit was improperly removed, and that the City suit was prematurely dismissed. State of Illinois v. Kerr-McGee Chem. Corp., 677 F.2d 571 (7th Cir. 1982). The state suit was remanded and trial began in 1986.

 Local coverage of the situation, and the government's and defendants' attempts to alleviate it, continued throughout 1981 and 1982. In May 1982 the NRC issued a draft Environmental Impact Statement ("EIS"), approving defendants' decommission plan pursuant to which the tailings would be buried on site. The local press published extensive excerpts of the draft EIS and issued notices of public debates which continued throughout the year. During one 1982 NRC public meeting the question of diminished property value was raised by a resident who stated that he could not sell his house because of the Facility. By July, EPA submitted comments to the draft EIS, noting that waste had already been found on numerous locations throughout the City, posing a potential health hazard. By October 1982 the mayor of West Chicago had submitted the first of two petitions to the NRC signed by over 200 residents seeking to force the NRC to require defendants to remove all hazardous chemicals from the City. The following month, between 70 and 150 protestore marched near the Facility to express opposition to defendants' plan to bury the tailings on the site. The march was reported in the local newspapers as well as the Chicago Tribune.

 By 1983, the publicity surrounding the thorium problem was so widespread that it became a key primary issue discussed by all candidates for local office. In May 1983 the NRC published a final version of the EIS, approving defendants' decommission plan pursuant to which the tailings would be buried at the Facility. That document indicated that the nearby residents considered the Facility a detriment to the neighborhood because of appearance and possible detraction from property values. The document further noted that an NRC study had found "localized areas of elevated radiation levels" at locations outside the Facility.

 On August 22, 1983, the 6:00 p.m. "Eyewitness News" broadcast on WLS TV Chicago featured a story concerning the City. During that broadcast an unidentified resident asserted that publicity concerning radiation had lowered property values in the community. Another person identified as a resident stated that he had difficulty selling his property because of "what has been in the paper, the news."

 In 1984 the City and defendants agreed to remove thorium deposits located on residential properties within the City. Those clean-ups began in 1984 and continued into 1985. Over 100 properties that had radiation readings exceeding a certain threshold were excavated and described in the news media as "hot spots" and as "hazardous sites." The clean-up project was covered extensively by the press.

 On October 15, 1984, the EPA proposed the addition of West Chicago residential properties, Reed-Kepler Park, and Kress Creek to the National Priorities List commonly known as Superfund. By March 1985 the City thorium issue had received national attention in a New York Times article entitled, "Battle Over Radioactive Waste Tests U.S. Policy." That article quotes West Chicago Mayor Reynolds as stating "it's our only issue, our obsession, and as much as land and water it has infected the minds of the community." The article also indicated that residents spoke of the town's high rates of cancer and birth defects and cited a hour of maladies such as thyroid problems and low sperm counts.

 By June 1987 the NRC published a draft supplement to the EIS concerning proposed decommissioning of the Facility. In September 1987 the City submitted a list of 174 questions raised at a public meeting in response to the NRC's draft supplement to the EIS. Among the issues raised by residents was the fact that the values of their houses were low because of the Facility. Residents asked whether defendants would purchase their homes for its true value. Residents questioned whether anyone would purchase their homes or even move to the City, and Residents questioned whether defendant would be around in 30 years to compensate victims and their families for unknown injuries caused by long term exposure to radioactive waste. In August 1987, an article entitled "Dream house turned into a hot house," appeared in the Winfield Examiner, the local paper. This article described in detail the claims of plaintiff Nicholas Dassion that his house was a health hazard because of the presence of thorium deposits on his property.

 In May 1988 the Illinois House voted to approve a bill giving the State the authority to ask the NRC for jurisdiction over the City tailings. The press noted that the tailings had been blamed for health problems and observed that it the State were to obtain regulatory authority it could force defendant to remove the tailings from the City. In August 1988, Governor Thompson went to West Chicago to sign the bill into law in a widely reported ceremony. By the end of 1988 the City press had described the thorium saga as the top news story of 1988.

 In April 1989 the NRC published another supplement to the EIS concerning the decommission plan for the Facility. This document indicated that thorium bearing material was present in Kress Creek, the west branch of the DuPage River and the West Chicago treatment plant. The supplement also discussed concerns that the Facility and its waste had caused a diminishment in property values near the Facility site. The document stated that "data also suggests that the negative publicity associated with the Kerr-McGee Facility (and not the presence of the site itself) contributed to the observed effect" on property values. The document further stated, however, that "evaluation of similar circumstances in other parts of the county has not established a long term relationship between proximity to environmental hazardous and residential property values . . .."

 In 1990, residents formed the Thorium Action Group ("TAG"), a community activist organization with the stated goal of pressuring defendant and political officials to remove the thorium from West Chicago. Beginning in January 1990, TAG members engaged in numerous activities that were designed to and did receive extensive news coverage, including distributing fliers, organizing public demonstrations, holding meetings, collecting approximately 9400 signatures on a petition to the NRC, initiating a letter writing campaign to the NRC, and advertising in the press. In February 1990 an NRC licencing board approved the decommissioning plan. The decision was attacked by City, State and County officials, as well as by leaders of TAG. In April 1990 TAG staged a protest rally at Reed-Kepler Park. There were speeches by Congressman Hassert, State Representative Henslo and Mayor Netzle, and the protestors formed a human chain around the fenced-in waste deposit in the park. In May 1990 the state court issued a ...


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