The Dow Chemical Co. and a former Rockwell subsidiary, which is now owned by The Boeing Co., have agreed to pay $375 million to settle a 26-year-old nuclear pollution lawsuit. The lawsuit, filed by a class of Colorado residents, claimed injuries from exposure to waste from a nuclear weapons facility.

The settlement means that the U.S. Supreme Court will not decide whether the federal Price-Anderson Act – a 1957 law covering liability claims for personal injury and property damage caused by commercial nuclear facility operators – preempts state nuisance claims. Dow and Boeing petitioned the high court to review a Tenth Circuit holding that state claims are not preempted.

Dow’s portion of the settlement is $131.25 million, leaving the remaining $243.75 million to be paid by Boeing-owned Rockwell Automation Inc. The settlement is still subject to approval by the U.S. District Court for the District of Colorado. The U.S. Department of Energy (DOE), although not a party to the litigation, said that the Price-Anderson Act imposes indemnification requirements on the government for certain public liability claims relating to nuclear incidents. Both companies said that they expect to be fully indemnified.

The federal government established the Rocky Flats facility, which is about 16 miles from downtown Denver, in the early 1950s to produce nuclear weapons components, according to the DOE. From 1952 to 1975, Dow operated the plant, and from 1975 to 1989 it was operated by Rockwell. The 6,500-acre plant site was closed in 1992, remediated, and is now a wildlife refuge.

Federal Bureau of Investigation agents raided the plant in 1989 and found evidence of environmental crimes. Plant workers had mishandled radioactive waste for years, with some being poured into the ground and leaching into nearby bodies of water. Some of the waste was released into the air and filtered its way into the soil throughout the area. The residents’ lawsuit was first filed in Colorado federal court in 1990, with the Plaintiffs alleging that plutonium releases from Rocky Flats had exposed area residents, increased their cancer risks, contaminated their properties and lowered property values.

The trial started in October of 2005, and in early 2006, the jury found Dow and Rockwell liable under trespass and nuisance theories. The jury awarded the Plaintiff class about $177 million in compensatory damages from both companies, and about $111 million in punitive damages from Dow, and about $89 million in punitive damages from Rockwell. After awarding prejudgment interest dating back to 1990, the district court entered a final $926 million judgment in favor of the Plaintiffs.

In 2010, the Tenth Circuit vacated the judgment and sent the case back to district court, where it was completely dismissed by the presiding judge. But the Plaintiffs appealed that decision, and in 2015, the Tenth Circuit issued a second ruling holding that the Plaintiffs could proceed with their lawsuit under state nuisance claims. It was those claims that were pending before the Supreme Court when the settlement was reached.

The class is represented by Merrill G. Davidoff, David F. Sorensen, Jennifer E. MacNaughton and Caitlin G. Coslett of Berger & Montague PC, Gary B. Blum and Steven W. Kelly of Silver & DeBoskey PC, Marcy G. Glenn of Holland & Hart LLP, Jeffrey A. Lamken and Robert K. Kry of MoloLamken LLP, and Paul M. De Marco and Louise M. Roselle of Markovits Stock & DeMarco LLC.

Source: Law360.com

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