There is a small amount of natural radioactivity in almost everything natural. However, certain industrial practices can result in radionuclides being concentrated to such a degree that they may pose a health and safety risk to humans and the environment. “Technologically Enhanced Naturally Occurring Radioactive Materials” (or TENORM) refers to materials, such as industrial wastes or by-products that have been enriched with radioactive elements, such as uranium, thorium and potassium and any of their decay products, such as radium and radon.
Varying levels of TENORM can result from such activities as oil and gas exploration, mineral mining, phosphate fertilizer production, water treatment and purification, and paper and pulp production. There is growing concern that some workers have been or will be exposed to potentially dangerous levels of radiation from TENORM. The EPA has stated that it is concerned about TENORM because TENORM has the potential to cause elevated exposure to radiation and because people may not be aware of TENORM materials and need of more information about TERNORM materials.
The Fifth Circuit Court of Appeals has recently reversed the dismissal of claims by the survivors of deceased pipe yard workers in a lawsuit regarding TENORM. Coleman v. OFS, Inc., No. 13-30150, (5th Cir. Oct. 30, 2014), is a class action suit on behalf of pipe yard workers and surviving beneficiaries of pipe yard workers. The claims asserted arise out of the pipe yard workers’ occupational exposure to radioactive oil field waste materials including TENORM and other hazardous substances. The plaintiffs allege that, unknown to the workers, pipe cleaning, pipe maintenance, and yard maintenance resulted in their exposure to TENORM, which caused or contributed to the development of various diseases, health problems, and deaths. The defendants in the lawsuit are oil companies who contracted with employers of the workers, including Atlantic Richfield Company, BP Products North America, Chevron, Exxon Mobil, Shell and others. The lawsuit alleges that the defendants were aware of the dangers of TENORM and were aware of the workers’ exposure, but failed to warn the workers or the public of the environmental and health dangers.
Multiple defendants moved to dismiss the claims of many of the survivors based on the statute of limitations. Under applicable Louisiana law, “[i]f a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of [specified beneficiaries].” La. Civ.Code art. 2315.1. The defendants argued that all survival claims filed more than one year after the decedent’s death were untimely. The district court agreed and dismissed all such claims.
The plaintiffs argued that the one-year limitations period should not begin to run until a plaintiff discovers the connection between the decedents’ deaths and the toxic tort exposure. Louisiana draws a distinction between “peremptive” and “prescriptive” periods to bring legal claims. If the period is “peremptive,” the period is not subject to tolling or interruption and runs regardless of whether a plaintiff had knowledge of his cause of action. On the other hand, if the period is considered “prescriptive,” the period does not begin to run until the plaintiff has actual or constructive knowledge of the facts which would entitle him to bring suit. The plaintiffs argued that the one-year period provided by Article 2315.1 should be considered prescriptive and thus subject to tolling.
On appeal, the Fifth Circuit initially decided that it was unclear whether Article 2315.1 was prescriptive or peremptive and certified the question to the Louisiana Supreme Court. Meanwhile, that court decided the same question in another case. In Watkins v. Exxon Mobil Corp., 2013–1545 (La.5/7/14), 145 So.3d 237, reh’g denied (July 1, 2014), the Louisiana Supreme Court held that the time period in Article 2315.1 is prescriptive and not preemptive.
Accordingly, the Fifth Circuit followed Watkins and held that Article 2315.1 contains a prescriptive period. Coleman v. OFS, Inc., No. 13-30150. The court of appeals reversed the district court’s dismissal of the plaintiffs’ survival claims and remanded the case back to the district court for further proceedings.
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* Michael Heygood, James Craig Orr, Jr. and Eric Pearson were selected to the Super Lawyers List, a Thomson Reuters publication, for the years 2003 through 2013.