Nuclear Facilities and Negligence: Legal Remedies in the Event of Toxic Exposure

A massive earthquake and tsunami rocked Japan on March 11, 2011, causing severe damage to the Fukushima Daiichi nuclear power plant. The plant has been leaking radiation ever since as the Japanese government works to stop the breach and avoid a total meltdown. In the first few chaotic days after the disaster, many Americans were concerned about reports of a radiation cloud heading towards California and small levels of radiation found in milk in the western United States.

Although the radiation leak at the Japanese reactor is unlikely to cause health problems for anyone outside Japan, a similar event in the U.S. is possible and would be very dangerous for those living near a nuclear facility. In addition, nuclear pollution, while less volatile than an outright disaster, is equally damaging and much more common. In Tennessee, a group of local residents is considering filing a class action lawsuit against Nuclear Fuel Services, which operates a facility near the town of Erwin, Tennessee. Evidence has come to light that NFS may be responsible for high levels of enriched uranium found in the Nolichucky River, a source of drinking water for some Tennessee communities.

While nuclear facilities can pose a variety of risks to those who live nearby, successfully suing a nuclear facility or other polluter is another matter entirely. Suing the operator of a nuclear facility, like other lawsuits for contamination of natural resources, is an extremely time-consuming and expensive undertaking. This is one reason why such lawsuits are often class actions (think Erin Brockovich or A Civil Action). It can also be very difficult to prove that exposure to something like uranium has caused any harm.

 

Negligence and Nuisance are Potential Causes of Action

Negligence is one of the most common causes of action a victim might have for a toxic exposure lawsuit. Under a negligence claim, the plaintiff has to prove that (1) the defendant had a duty of care to the plaintiff, (2) the defendant breached that duty by failing to act as a reasonable person would act in those circumstances, (3) the defendant’s negligence caused some harm to the plaintiff, and (4) the plaintiff suffered damages as a result.

In the context of a lawsuit against a nuclear polluter, the law in some states may allow plaintiffs to claim they suffered harm because of a “fear of cancer.” However, this can be a very difficult case to win because the plaintiff is required to prove the exposure more than doubled his or her risk of cancer.

A plaintiff may be able to prove negligence most easily if the defendant has failed to comply with various government safety or maintenance regulations. In the Nolichucky River case, for example, the nuclear facility at issue has been criticized in the past for frequent safety violations. Proving that Nuclear Fuel Services was out of compliance with safety regulations will be one surefire way for the Tennessee plaintiffs to show that NFS breached its duty.

Another possible cause of action in such lawsuits is nuisance. In a nuisance claim, the plaintiff has to show that the threat of contamination or the actual contamination is a significant interference with the use and enjoyment of his or her land. In most cases there has to be actual contamination, even if the threat caused the property value to decline. A threat of contamination that may not lead to actual contamination is not enough to prevail in a nuisance suit.

Of course, the likelihood that you will be affected by uranium leaking from a nuclear facility like the one in Japan is very, very slim. However, if you do happen to live near a nuclear facility or any other type of factory or plant, make sure to find out what kind of safety procedures are in place to protect the surrounding communities in the event of a disaster. Always be aware of the environmental risks of living in your area, as well as the legal recourses that may be available to you and your family.