.Legal Analysis When considering the engineering of a molten salt reactor (MSR), which is a class of nuclear fission reactors in which the primary coolant, or even the fuel itself, is a molten salt mixture. No Liquid Fluoride Thorium Reactors (LFTR) have been built to date, a revolutionary liquid reactor that runs not on uranium, but thorium. Although LFTR power plants have not yet been built, one can look at the issues that have arisen out of the manufacture and application of alternative nuclear reactors in the past, and the courts’ rulings on those issues, to determine what hazards exist. Obviously, in the case of an LFTR power plant, the most important issue to consider is what kind of hazards exist, and what kind of liability is ascribed, in the event of a failure of the LFTR power plant. When considering the legality of engineering and constructing an energy-producing reactor, there are a variety of applicable fields of law that can be utilized to analyze the potential issues that arise from the construction of a liquid fluoride thorium reactor power plant. However, the most prevalent applicable law would be tort law and the application of strict liability to the engineering and utilization of such a power plant. Strict liability, generally, speaking imposes negligence upon an individual, regardless of fault, when that individual engages in an abnormally dangerous activity. See Rosenblatt v. Exxon Co., 335 Md. 58, 69-70 (1994). When engaging in abnormally dangerous activities, strict liability is imposed “for harm to the person, land or chattels of another resulting from the activity, although [the tortfeasor] has exercised the utmost care to prevent the harm.” See Restatement of the Law 2nd (Torts). This liability is not based upon any intent to cause harm or negligence in carrying out the activity, but is based on the idea that the activity is sufficiently dangerous in and of itself, and poses such an abnormally high risk of harm to anyone in the vicinity of the activity. See id at (d). Therefore, liability is imposed regardless of exercise of due care by the tortfeasor.
There are a variety of activities that are considered to pose a significantly high danger such that the actor can be held strictly liable, i.e., the operation of a gasoline station, the dumping of hazardous chemicals onto private property, the storage of explosives in excess in a city, the releasing of toxins into the air, or the collecting of water in unsuitable or dangerous places. See Rosenblatt, 335 Md. at 72-74 and Restatement of the Law 2nd (Torts). The liability imposed, however, is not limitless, as it would place an unbearable burden upon land users to impose liability without limitation; the degree of danger ascribed to an activity is relative to the area in which it occurs, the one engaging in the activity must own or control the land, and the dangerous act must be related to the occupation or ownership of the land. See Rosenblatt, 335 Md. at 71-74; see also, Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 213-214 (1939) and Kelley v. R.G. Industries, Inc., 304 Md. 124, 133 (1985).The Maryland Court of Appeals imposed strict liability, for example, on the owner of a gas station which had caused damage to an adjacent property owners’ land due to the presence of the gasoline in the gas station’s well. See, generally, Yommer v. McKenzie, 255 Md. 200 (1969).
Although Maryland courts have not yet encountered a case regarding strict liability related to the hazards posed by a nuclear power plant, other jurisdictions have. For instance, in Ohio, the court agreed that the design and construction of a nuclear power plant is an intrinsically hazardous activity “which gives rise to strict liability and the imposition of extracontractual(sic) duties upon product manufacturers.” Cincinnati Gas & Electric Co. v. General Elec. Co., 656 F.Supp. 49, 59 (Ohio, 1986). Similarly, in North Carolina, strict liability has been applied when considering the generation of nuclear energy, an intrinsically ultra-hazardous activity, especially when done near large population centers. See Carolina Environmental Study Group, Inc. v. U.S. Atomic Energy Commission, 431 F.Supp. 203, 223 (N.C., 1977). With respect to our case of engineering power plants reliant upon Liquid Fluoride Thorium Reactors (LFTR), it is undeniable that strict liability would be applied for those constructing such a power plant. The most significant legal issue that needs to be considered is the placement of a power plant utilizing LFTRs. It is clear that such a power plant would need to be constructed in an area with a sparse population; the closer a power plant is placed to larger populations, the greater the hazard it poses because of the increase in the number of citizens potentially at risk. Any neighbors near a power plant or whose homes are caught by chance in a contaminated area cannot avoid the hazard posed by the plant, and so the selection of the site of the power plant is key in minimizing the risk of liability.
Another risk to consider is that in the event of a failure of the plant, the toxic liquids produced by the plant drain into an underground tank- as opposed to the steam escaping into the air, which is what occurs in the event of a failure of a standard light water reactor power plant. Therefore, the LFTR power plant would need to be engineered in a location that is not only distant from any significant population, but distant from any significant water supply. That being said, the LFTR power plant is designed to fail safely, as opposed to a light water reactor power plant, like the kind seen in Fukushimi. When a light water reactor power plant fails, contaminations in the air and ground, explosions, and radiation occurs. All of the contaminants in an LFTR plant, however, are designed to drain into a tank in the event of a failure because excessive heat kills the process. In addition to producing significantly less airborne chemicals, it is more efficient and the byproducts, significantly uranium, plutonium, and hydrogen, are less than that of a light water reactor power plant. Quantities of, thereby, signifying a decrease in potential for liability. Although this proposed energy is much safer, there is, of course, the potential that this reactor could damage nearby vegetation from the production of energy of this magnitude or from the escape of tainted water or materials, or the non-specific hazards posed by the mere presence of such energy.
Although the selection of the location of the site of the building is the most important issue to consider, there are state and federal safety regulations, building codes, and other laws mandating safety requirements and insurance requirements, which will need to be adhered to in order to decrease the risk of liability posed by engineering and operating such a facility. Although in the case of a failure, additional relief through the federal or state government funding may be available, a primary plan of insurance, with high policy limits, would be needed.
Even with the application of strict liability against the owner/operator of an LFTR power plant, there are two major legal defenses available in Maryland to a claim for negligence: assumption of the risk and contributory negligence. A claimant is found to have assumed the risk of his or her injuries where it is shown he/she had knowledge of the risk, appreciated that risk, and voluntarily confronted that risk of danger. See, generally, Thomas v. Panko, 423 Md. 387 (2011). If an employee chooses to work at the proposed LFTR power plant, or a citizen decides to construct a home near the power plant after its construction, then there is the possibility that any potential injuries claimed could be defeated by assumption of the risk. Comparatively speaking, contributory negligence is that degree of reasonable and ordinary care that a claimant fails to undertake in the face of an appreciable risk which cooperates with the defendant's negligence in bringing about the plaintiff's harm; contributory negligence on the part of a claimant is a complete bar to recovery, even if the defendant is negligent. See, generally, Woolridge v. Price, 184 Md.App. 451 (2009). As applied to the construction and operation of our LFTR power plant, it is unlikely that there is a scenario where contributory negligence could be applied. Due to the likelihood that liability will be automatically imposed, the likelihood of prevailing on either available defense would be slim.
At the end of the day, because strict liability will be applied in the event of any harm caused, the most important issue to focus on when analyzing the legal liability of constructing and operating such a power plant, is the placement of the plant itself and the assurance that state and federal safety guidelines are followed.