ML20044E334
| ML20044E334 | |
| Person / Time | |
|---|---|
| Issue date: | 04/15/1993 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-93-101, NUDOCS 9305240201 | |
| Download: ML20044E334 (64) | |
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ADJUDICATORY ISSUE OnfOrnladOn)
April 15, 1993 SECY-93-101 FOR:
The Commission FROM:
John F.
Cordes, Jr.
Solicitor
SUBJECT:
LITIGATION REPORT - 1993 - 05 American Public Power Association v.
NRC, No. 92-1061 (D.C. Cir.,
decided April 13, 1993)
Petitioners challenged the NRC's License Renewal Rule insofar as it does not require antitrust review at license renewal.
Petitioners argued that the " plain meaning" cf section 105(c) of the Atomic Energy Act -- providing for antitrust review of l
license " applications" -- calls for antitrust review of license renewal applications.
On April 13 the court of appeals (Silberman, D. Ginsburg & Williams, JJ) issued an opinion rejecting petitioners' position.
The court found that the statutory language was not "all that clear" (Slip op, at 7).
In the license renewal rulemaking the NRC had relied heavily on legislative history that appeared to rule out antitrust review in license renewal proceedings.
The court ruled that the legislative history was not itself
" dispositive," but concluded that the Commission's statutory construction nonetheless was " permissible," in view of "the imprecision in the statutory language and the Commission's plausible reliance" on the legislative history (Slip op. at 7-8).
The court also rejected petitioners' complex statutory argument that at the least commercial plants licensed under section 104b
("research and development" reactors) ought to be subject to antitrust review at license renewal.
The court accepted our argument that the Atomic Energy Act contains a " grandfather clause" (section 102(b)) effectively immunizing section 104b plants from antitrust review absent unusual circumstances.
See Slip op. at 8-9.
NOTE:
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Finally, the court rejected petitioners' " policy arguments" as a ground for upsetting the NRC's approach.
The court stated that it " suppose [d] the NRC could have accepted petitioners' arguments and determined to conduct antitrust review as a matter of i
discretion, but we cannot say that the Commission's construction of the statute is unreasonable" (Slip op. at 9).
Attachment:
Decision
Contact:
Grace H. Kim 504-3605 Revtblatt v. NRC, No. 92-1029 (7th Cir,, decided March 10. 1993)
This is a Federal Tort Claims Act suit against the government based on an allegation that the NRC had misappropriated plaintiff's " Integrated Leak Rate Testing Methodology."
After lengthy delays in discovery caused by plaintiff, and after plaintiff's failure to comply with a court command to submit a pre-trial order, the district court dismissed plaintiff's lawsuit with prejudice for failure to prosecute.
On March 10 the court of appeals (Cudahy, Cummings & Manion, JJ) issued a 4-page per curiam order affirming the district court judgment.
The court of appeals pointed to " plaintiff's repeated disregard for court orders and related contumacious conduct," and commented that "[a] trial court is entitled to say, under proper circumstances, that enough is enough.
(Order, at 4).
Attachment:
Appeal
Contact:
Charles E. Mullins 504-1606 United States v.
Pesses, Civ. No. 90-0654 (W.D. Pa., decided March 12, 1993)
The government brought this lawsuit under CERCLA against numerous defendants to recover costs incurred in cleaning up the i
contaminated Metcoa Radiation Site in Pulaski, Pennsylvania.
A few of the defendants filed a counterclaim against the government claiming that the government itself is liable for the cleanup as a " responsible party."
Among other government agencies, the NRC is named, on the ground that it improperly licensed the site.
3 The U.S. Magistrate, to whom this case was assigned for deciding preliminary motions, ruled (among other things) that the government can be held liable under CERCLA for failures in its regulatory mission.
The government does not agree with this reading of the law and has appealed the Magistrate's decision to the district judge.
Attachment:
j Report and Recommendation
Contact:
Carole F.
Kagan 504-1620 International Brotherhood of Electrical Workers v. Southern Nuclear Operatina Company & NRC, Civ. No. 93-A-397-S (M.D. Al.,
filed April 1, 1993)
A labor union brought this lawsuit claiming that the NRC's
" access authorization" rules unconstitutionally require nuclear power plant employees to ret.rt all arrests to their employer.
i In actuality NRC regulatiorc contain no such requirement, although some utilities apparently do demand arrest 2nformation.
Plaintiff asks for a court order requiring defendants to "specify the criminal offenses for which an arrest would impact upon an employee's trustworthiness, specifically excluding therefrom any i
arrest or citation for traffic, game and/or fish citation."
We will work with the United States Attorney's office in Alabama j
in defending this case.
Attachment:
Complaint
Contact:
Marjorie Nordlinger 504-1616
,3 hn F.
Cordes, Jr.
Solicitor
{
DISTRIBUTION
OPP R"GIONAL OFFICES "2
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ATTACHMENT -
Ainerican Public Power Association v. NRC, No. 92-1061 (D.C. Cir., decided April 13, 1993)
Notice: This opinion is subject to formal revision before publication in I
the Federal Reponer or U.S. App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made i
before the bound volumes go to press.
Enittb States Court of $[ppeals PoR THE DISTRICT oF COLUMBIA CIRCUIT Argued March 9,1993 Decided April 13, 1993 No. 92-1061 AMERICAN PUsuC power ASSOCIAnoN, ET AL.,
PETmoNERs v.
U.S. NUCLEAR REcCLA'IDRY COMMISSION, RESPONDENT ELEcrRic UnunES. ET AL.,
SPRINorIrto CITY UnunEs.
ENTERcy OPERADONS, INC, ET AL.,
INTERVENoRS Petition for Review of an Order of the U.S. Nuclear Regulatory Conumssion Ben Finkelstein, with whom Robert A. Jablon, Cynthia S.
Bogorod, and Russell F. Smith, III, were on the brief, for petitioners and interrenor Springfield City Utilities.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out of time.
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must advise the Conunission whether "the proposed license the fonn of an application for a construction permit may would tend to create or maintain a situation inconsistent wiOi be such that, from the applicant's standpoint,it ultimate-the antitrust laws." Id Section 105(c) then required that ly ripens into the application for an operating license.
the residt of the antitrust review be published in the Federal The phrases "any license application", "an application for Register. Section 105 did not, however, subject section a license", and "any application" as used in the darified 104(b) research and development licenses to antitrust review.
and revised subsection 105 c. refer to the initial applica-Under section 105, all operators were held accountable to the tion for a construction permit, the initial application for antitrust laws only as enforced by the courts and other
[an] operating license, or the initial application for a govenunent agencies. The AEC also was ordered to report modification which wotdd constitute a new or substantial-any information of antitrust violations involving atomic ener-ly different facility, as the case may be, as determined by gy to the Attorney General. $ 105(b), 68 Stat. 938.
the Commission. The phrases do not include, for pur-Congress changed this state of affairs in its 1970 Amend-p ses of triggering subsection 105 c., other applications ments to the Atonde Energy Act (The 1970 Amendments).
which may be filed during the licensing process.
Pub. L. No.91-560, 84 Stat.1472 (codified at 42 U.S.C.
Joint Committee Report,1970 U.S. Coos CoNo. & Amun 0 2132 ct scq (1988)). Congress deleted the " practical value" News at 5010 (emphasis added).
finding requirement and instructed the AEC to grant all As'the licenses issued under the 1954 Act approached the future licenses under section 103. Sec 42 U.S.C. I 2132(a).
end of their 40-year tenns, the NRC developed ndes to llowever, a grandfather provision was induded that pennit-govern renewal. The Conunission detennined that rather ted reactors already operating under section 101(b) licenses than amending the tenn of the originallicense, nudear plants to receive new licenses under the same section. Sec id would have to receive " renewed operating licenses" to contin-5 2132(b).
ue operation after their initial licenses had expired. 5G Fed.
Congress also took the opportunity to darify the Act's Reg. 64,943, 61,9G1 (1991). Still, relying on the Joint Com-antitrust review provisions. A modified section 105 provided mittee Report language quoted above, the Commission con-for mandatory antitrust review of applications for a construc-duded that applications for section 103 license renewals did i
tion perndL Review procedures "shall apply to an application not normally trigger section 105(c)'s antitrust review provi-for a license to construct or operate a utilization or production sions. "[U]nless the operating license renewal application facility under section [103)." Id 6 2135(c)(2). The Conunis-constitutes an ' initial application / or an initial application for sion then could implement a second review when it received a a 'new or substantially different facility / the [Act] does not subsequent application for an operating license, but only if it require an antitrust review in connection with the renewal found that "significant changes in the licensee's activities or application." Id. at G1,969.
proposed activities have occurred" after the review at the The Commission believed it unnecessary to even consider construction permit stage. Id whether renewal of section 104(b) licenses required antitrust Section 105(c)'s provisions are triggered only by "an ap-review.
Because the amended section 102b, 42 U.S.C.
plication for a license." The Joint Committee on Atomic 5 2132(b), explicitly grandfathered section 104(b)-licensed Energy expressed its understanding of the phrase thus:
plants, the Commission did not need to issue new section 103 The conunittee recognizes that applications may be licenses to renew section 104(b) licenses. Id at 64,970.
amended from time to time, that there may be applica-Therefore, facilities with section 104(b) licenses also would not tions to extend or review [ sic ?) a license, and also that be subject to antitrust review when they came up for renewal.
_-. =. - - _ - - -.
.. =
6 7
The NRC's rule, then, eliminated antitrust review for all a typographical crror.' In that case, the report language renewal applications, whether under section 103 or 10t(b).
emphasizing that the words "any application" means an "ini-tial application" for a construction permit, operating license, or substantial modification would seem to have purposefully II.
excluded an application for renewal. Because we cannot be Petitioners' core argument focuses on the section 103 h.-
l certain that " review" was a typograpidcal error, we do not cense renewal regulations. They contend that the language l
tidnk the legislative history compels us to adopt the Commis-sion's interpretation. Rather, under the second step of Chev-of section 105 of the Act unequivocally requires antitrust ron, the question is whether the Commission's interpretation review of all section 103 applications. An application for is a pennissible one. Of course, at Chevron Step II we do not renewal is no less "an application" under section 105(c)(2) ignore the NRC's Chccron Step I argument, see Natural than an application for a new license-therefore, end of case.
- csomtes Defense Council, Inc v. Reilly, 976 F.2d 36, 43 There is no need for the Commission to examine legislative (D.C. Cir.1992) (Silbermmi, J., concurring), and we agree history because there is no statutory ambiguity.8 We do not with the Comndssion that " review"is probably a typograpid-think, however, diat the statutory language is all that clear.
cal enor. That in itself, however, is not dispositive.
As even petitioners concede, Congress could not have intend-Petitioners' argmnent is not insubstantial. They claim that ed that a ndnor mnendment to an outstanding application be the very purpose of the original 40-year license tenn was to considered a separate application, and thus trigger a new protect against antitrust abuses. The Commission itself, in antitrust review. Moreover, elsewhere in the statute, in its rulemaking, recognized that "[t]he 40-year license tenn in section 103(c), the term license renewal is expliciuy used and Section 103.c, widch necessitates license renewal, was adopted yet it is absent in section 105, which raises at least a question for antiirust and financial reasons rather than safety or whether Congress intended section 105 to apply to renewals.
common defense and security reasons." 56 Fed. Reg. at 64,960. Eliminating antitrust review at the time of renewal, The Commission may well be correct in assertm.g that Congress-m the words of Chevron U.S.A. Inc. v. Natural it is argued, would eviscerate die term limitation.
Resources Defense Council, Inc. 467 U.S. 837 (1984)-sought The Comndssion's direct response to tids argument is not to address directly the issue presented to us. Congress chose wholly persuasive. It maintams that the 40-year term was a to use the legislative history, not the general statutory lan-c mpr mise between the Justice Department's proposal of 20 1
guage. In the Joint Committee Report quoted above, it yeam-based on antitrust concerns-and industry desires for seems more likely than not that Congress was referring i longer or even unlimited tenus. Congress chose the 40-year renewal' when it used the term " review, and that review is tenn, according to the NRC, because of actuarial consider-ations. That hardly negates the Commission's own determi-a Even if the statute were unambiguous, it is by no means
}
nation that the 40-year term was fashioned, at least in part, accepted that we should not examine the legislative history. See 1
with antitrust considerations in mind. The Commission also Chisam c. Roemer,111 S. Ct. 2354. 2369 (1991) (Scalia, J., dissent-
)
argues-more persuasively-that whatevar Congress' pur-ing). Of coune, it is practically impossible not to read what the pose in 1954, the 1970 amendments are more to the point At parties put in their brief. As a general principle, however, virtually that later stage, Congress focused more directly, if not with-all judges would agtre that there is a " strong presumption" that the
~,
actual language of the statute is by far the best indication of the
'Sce 56 Fed. Reg. 64,969 n.3 (NRC explanation of typographical statute's meaning. See Anfestani v. INS,112 S. Ct 515,520 (1991).
error).
8 9
out some ambiguity, on the subject of antitrust review. Given or had been drastically modified. Petitioners cannot support the imprecision in the statutory language and the Commis-their claim that all facilities have been sufficiently modified to sion's plausible reliance on the Joint Committee Report, we meet uds test Their position, moreover, would read section think die Commission's construction of the 1970 amendments is a permissible one.
102(b), the grandfather clause, out of the statute. Tims, we do not understand section 102(b) and its legislative history to Petitioners urge that, even if antitrust review is not re-require review of all section 104 renewals.
quired for secdon 103 license renewals, the statute still The balance of petitioners' arguments are basically policy commands it for " renewals" of section 104(b) licenses. Ac-cording to petitioners, the NRC must relicense section 104 oriented. Petitioners assert that the NRC's construction will facilities by issuing new secdon 103 licenses. It is undisputed have undesirable effects and undermine congressional pur-that new section 103 licenses may be issued only after anti-pose as broadly phrased. We suppose the NRC could have trust review. The difficulty with petitioners' argument is that accepted petitioners' arguments and determined to conduct the 1970 Amendments specifically addressed dus issue. Sec-antitrust review as a matter of discretion, but we cannot say tion 102(b) provides that "any license hereafter issued for a that the Commission's constniction of the statute is unreason-utilization or production facility... the construction or opera-able. We have no warrant to quarrel with the Commission's tion of which was beensed pursuant to sect 2on 104b. prior t policy judgment that it discharges its responsibilities under enactment into law of [the 1970 Amendments), shall be issued the antitrust laws and the Act when it reports to the Attorney under section 104b.
42 U.S.C. 5 2132(b). Antitrust review General any antitrust violations that come to its attention.
does not attach to applicabons for licenses under section 104 See 42 U.S.C. 5 2135(b). The Commission has permissibly except upon request by one of a category of protestors who chosen to limit its antitrust review duties to situations where actually had intervened during an original construction per-
. issues a new operab.ng k nse.
i mit proceeding to raise antitrust concerns. Sec 5105(c)(3),
For the foregoing reasons, the petition is denied.
42' U.S.C. 5 2135(c)(3). It appears, then, that Congress meant to." grandfather" section 104 licenses and to exempt the licensees from seeking a new section 103 license.
Petitioners give facilities in the grandfather clause a rather narrow and artificial meaning. They define facilities as only those which have remained totally unchanged over 40 years.
The Joint Committee did say in its'1970 report that if a
"[section 104b] facility is to 1,e modified to such a degree as to constitute a new or substantially different facility, as provided in a regulation or order -issued by the Commission, the exception to section 103 licensing is not intended to be applicable to the necessary license amendment." Joint Com-mittee Report,1970 U.S. Coos CoNG. & AomN. News at 5007.
But that language seems to require the NRC to conduct an antitrust review only if the licensee seeks an amendment (or 4
perhaps, if the NRC determines that the licensee should have sought an amendment), because a particular facility was to be
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ATTACHMENT -
Revtblatt v. NRC, No. 92-1029 (7th Cir.,
decided March 10. 1993) l i
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Miteb States (:ourt of $Nppealg For the Seventh Circuit Chicago, Blinois 60604 i
Submitted February 16,1993.
Decided March 10
,1993,J Og,
,Z Before 4
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Hon. WALTER J. CUMMINGS, Circuit Judge Hon. RICHARD D. CUDAHY, Circuit Judge l
Hon. DANIEL A. MANION, Circuit Judge ZINOVY V. REYTBLNIT,
)
Appeal from the
)
District Court for Plaintiff. Appellant,
)
Northern District of f
)
Illinois, Eastern No. 92-1029 v.
)
Division.
)
UNITED STATES OF AMERICA,
)
No. 86 C 385 i
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Defendant-Appellee.
)
Charles P. Kocoras,
)
Judge.
ORDER l
Plaintiff challenges the district court's dismissal of his suit for failure to prosecute, Fed. R. Civ. P. 41(b), contending that the district court erred on the basis that it was " biased in favor of defendant." We affirm.
i I After preliminary examination of the briefs the court notified the parties that it had i
tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a _" Statement as to Need of Oral Argument" Sg Fed. R. App. P. 34(a); Circuit Rule 34(f). Appellant has filed such a statement and requested oral argument. Upon consideration of that statement, the briefs, and the record, j
the request for oral argument is denied and the appeal is submitted on the briefs and record.
e
No. 92-1029 Page 2 BACKGROUND We need not detail the prolonged history of the district coun's considerable efforts to bring this suit's pretrial status to a close over thg past five years. It is enough following: In January 1986, plaintiff filed the suit', which basically alleges that defendant >
misappropriated plaintiff's Integrated Leak Rate Testing Methodology, which was to assure that leakage of radioactive materials from nuclear power plant containment systems was within legal limits.
P In January 1988, Judge McGan ordered all document production closed, notin his opinion that the case was "a two-year orgy of contentious discovery, with no progress towards resolution of the issues." Judge McGarr also detailed plaintiff's unjustified arbitrary requests to depose various NRC personnel, and granted the defendant's motion a protective order requiring plaintiff to retain counsel to conduct the depositions.
In August 1988, Judge Kocoras ordered document discovery closed for all pur finding that there had been " ample opportunity as well as an abundance of documents apparently disclosed prior to my getting into the case and we do not need to revisit that" In October 1989, Magistrate Judge Rosemond sanctioned plaintiff for his
" contumacious disregard to the discovery orders" of the district judges after plai improperly attempted to conduct a pro a deposition of an NRC employee. At various times in 1989 and 1990, plaintiff was ordered to conduct certain depositions he had requested, by certain dates. Each time, plaintiff chose not to take the depositions.
In October 1990, Judge Kocoras ruled that all discovery was closed. In Janu however, at plaintiff's request, the court perrnitted plaintiff to depose two peo certain date. Plaintiff again chose not so take the depositions. In May 1991, defendant a proposed pretrial order pursuant to local rule 5.00. Plaintiff had declined to confer with defendant about the order, or to submit a draft. Nevertheless, on May 29,1991, motion for leave to file a belated proposed pretrial order was granted, In October 24,1991, plaintiff argued that a pretrial order should not be entered a trial date should not be set until more depositions could be taken. The court orde plaintiff to file a proposed pretrial order within 30 days. The court instructed the co to provide plaintiff with the correct pretrial order form. The court warned:"If you fail to 2
Plaintiff, a college professor of mathematics, appeared pro a intermittently, and also represented by five different attorneys at various times throughout the pre Plaintiff appears pro a in this court.
3 In April 1986, plaintiff filed an amended complaint naming the United States a only defendant.
No. 92-1029 Page 3 submit the pretrial order by [ November 26, 1991), I am going to dismiss your case with prejudice."
On November 5,1991, plaintiff again asked the district court for additional discove including interrogatories, production of documents and depositions. The court noted that discovery had been closed for some time, and again warned: 'TM]y prior order will stand, both in terms of deadlines for the submission of the pretrial order and the trial date."
On November 25,1991, plaintiff appeared in court and requested thejudge's recusal.
The court denied the motion, repeating the warning that all previously ordered deadlines were stillin force. On December 12,1991, the court granted defendant's motion to dismiss the case with prejudice.
On December 19,1991, the court denied plaintiff's motion to reconsider the dismissal order. Plaintiff again argued that he was net prepared to file a proposed pretrial order until he received the additional discovery. On December 23, 1991, the district court denied plaintiff's motion for additional findings of fact.
notice of appeal.
On January 3,1992, plaintiff filed a timely DISCUSSION Plaintiff contends on appeal that the district court was biased in favor of defendant.
We find nothing in the record that would indicate any bias, or any abuse of discretion.
Under Federal Rule of Civil Procedure 41(b), the district court may dismiss a case for failure to prosecute or failure to comply with court rules or orders. Fed. R. Civ. P. 41(b). That decision will not be disturbed absent an abuse of discretion. Daniels v. Brenna 783,785 (7th Cir.1989); Patterson v. Coca. Cola Bottling Co. 852 F.2d 280,283 (7th Cir.
1988).
i Under local rule 5.00 of the district court, parties to a civil case must jointly file a proposed final pretrial order.
For five years, the district court made every effort to i
accommodate plaintiff's discovery requests, and to allow for plaintiff's intermittent pro g Discovery was closed, and then re-opened for plaintiff's benefit several times.
status.
Plaintiff rarely took advantage of those second, third or fourth opportunities to seek the requested discovery or take the requested depositions. The court went to great lengths to explain the consequences of violating court orders, repeatedly warning plaintiff that if he did not file a pretrial order (permitting him to forego the requirement that he confer with defendant and file a joint order), the case would be dismissed with prejudice. Even after the dismissal of the case, plaintiff refused to file a pretrial order, instead continuing to demand additional discovery.
We acknowledge that the pleadings of pro a litigants should be construed liberally.
Even with that liberal construction, however, we cannot say the district court abused its e
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No. 92-1029 Page 4 discretion in dismissing this case. The record reveals plaintiff's repeated disregard for court i
orders and related contumacious conduct. "A trial court is entitled to say, under proper circumstances, that enough is enough, and less severe sanctions than dismissal need not be imposed where the record of dilatory conduct is clear." Daniels v. Brennan. 887 F.2d at 788, quoting Pyramid Enerev. Ltd. v. Hevi & Patterson. Inc. 869 F.2d 1058,1062 (7th Cir.1989).
Accordingly, the judgment of the district court is AFFIRMED.
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ATTACHMENT -
United States v.
Pesses, Civ. No. 90-0654 (W.D. Pa.,
decided March 12, 1993).
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I TN TMS UNITED STATES DISTRICT COURT FOR TITE WESTE3tK DISTRICT Of FENN8YLVANIA I
UNITED STATES OF AMEILICA,
)
i Plaintiff,
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Civil Action No. 90-0654
)
MARVIN PE88ES, et al.,
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Defendants, )
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- s_:; _e m
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AND ASSOCIATED COUNTER-AND CROSS-
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ER Co. (T1 cLA ms AND THIRD FARTY COMPLAINTS.
)
E P'1^ $ <=
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ER m
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ampene Are m e rwnatrom IS CP
+
I Reconnmandat4an :
It is respectfully recon
- mended that the plaintiff's motion for summary juagment on Phase'I (Docket No. 378) he granted as to all defendants axoept for Molycorp and Marvin
)!
Possen with respect to 11aD111ty, but not as to the joint and several nature of their liability, that the motions for nunmary i
judgment sukatitted by defendanta could (Docket No. 866) and i
cliner (Docket No. a70) be denied, and that the action for partial summary judgment as to the plaintiff's lianility brought i
by defendants Avco and sharritt (Docket No. 464) in which Union j
carbine mas joined (Docket No. 877) be granted.
i II. Ragsg&:
Presently bercro the Court for disposition is a motion for summary juagment havught by the plaintiff, L%ited states of i
Amerir.a, motions for sim==v judgment eubesitted by defendante i
Gould, Inc. (*ooulda) and climax Parformance metals, Inc.
)
(* climax *),
and a motion for partial summary judgment brought by i
- i
_ ~. _ _ _ _ _.
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3-$-jjf;f.i..';W 202615220S3
' ngg 37 1
sa si 2E PAGE.823 I
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' defendants Avoo Corporation ("hVCo') and Sherritt Gordon Limit d I
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e
("Sherritta) in which defendant Union Carbide Corporation (#U
{
l n on carbide") has joined.
i i
The plaintiff commanand this action against twenty-six i
defendants pursuant to the Comprehensive Environmental R j
i
- esponse, compensation and Lianility Act ('cERCIA*), 42 U.S.C, 6 M01
, et to recover the past, present, and future Costs it i
{
seq.,
i ncurs in
. response to the sileged release or threattned release of l
hazardous substances at the Metoon Am41stion Site j
_n Pulaski, Pennsylvania
{
(hereinafvor, the "alte" OR "Metcog").
plaintiff asserts that beginning in er about 1375, twenty four
'Itbe defendants arranged for the disposal or treatment j
of hasardous substancas at the site's that in 1944 the Environmental Protection Agency (" EPA") conducted an investi0ation j
of the site which revealed the presence of approximately 3 000 55 gallon drums containing hasardous substances; that such hasardous H
1.
Of these tvanty-four defendants, seventeen have be c1...ified na a scrappar/ dealer defendants".' They are Metals company en a.M. cousins c=(-umy ), G.o. carlson, Inc.
acarlson"), consercial
}
acnca Dreyfusa Metal company (' cousins"), Dana corpo(ration _(" Dana *),
- clianx, s
(arlowline"), Lunts Corporation (*Lunts"(*Dreyfuss"), Flowline Corporation i
Inc.
aros. (*Intramotoo*), Monico Alloys, Inc.-)(,*Nonico"),ican metals, IntraAmer
(*Moskowitz"), Frank H. Nott, Inc. (*Nott")
Moskowits i
(*canitaka Theodore sa)il, Inc.-
, Rochestar Smelting and kafining Co., omnitek,'Inc.
Thalbeimer Brothers,(Inc. ('Thalheimer')n, Inc. (*(segel*), and"toebester*),
= salla), segal & So
)
treatment of hasardous vastes at the site have bseven o i
i
" generator datendants".
They are:
een classifie son 16, Mol sherritt, ana
, Inc. ("Molycorp"),Avoo, cas, Inc. (*cKE*),
d aa ion carbien.
Motorola,-Inc. ('motorola"),
and/or operaters of the site. County Industrial' Develo
, the alleged owners i
2
nw>c 47 *o3 11 Ir I
PRGE.BB4
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t substances as cadmium,. chromium, copper, lead, magnesium, 1
sarcury, nicksi, radionuclides (thorium), selenium, and sine vers l
f-a.t th. sie., saat th. m inv sig tion al.a estan11shed t
I
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i that hatardous substances had been released and threatened to be i
released from the sitet and that the plaintiff has taken response f
actions so as to sample, stabilise, and secure the site, i
Tns plaintiff seeks judgment against the defendants jointly and' oeverally for all costs it incurred in taking j;
r.apons.
otion. related to tne site.
It also sosks to recover pre $udg nt int.r t un those costs and r yeests_a, declaratory
$udysent th t the carondents are liabis for rurtner response I
costs it may incur.
rhe plaintire has invokea the court's jurisdiction pursuant to 42 U.S.c. il 94o7 and SG13(b) and 35 U.S.C. Il 1331 and 1345.
Plaintiff's Motien for Suw=W Judpant aan Phmaa reis in its motion for summary judgment, the plaintiff asserts that each of the defendants are jointly and severe 11y liable for its past, present, and future response costs incurred at the site.
Summary judgment is appropriate if the pleadings
)
2.
In the caso Management order dated sep**
r 17, 1990 k
("CM0"), this litigation van divided into three phases.
forth on page 4 of the CMO:
As set
' phase I shall determine whether i
defendante are liable to plaintiff under section 107 of CERCIA, incurred by the United States shall be litigated in Phase II.42 U.s jl Phase II shall determine appropriate relief, including the amount or recovery by the United states gros defenaants.
Phase III shall determina all eross claims and third-party claims among defendants and third-party defendanta, and thereby establish an allocation or liability among those parties it such allocation is apprvpriate.'
i 3
f 7FCt M? E U '* 1 II
1 03-18-93'_05:53PM DOJ'-ENVIRN DEF POS/23 i
I 3-14 E3 FtSO PM 400.'
I t.0::ta c 2?.p ta s 0 24
" 'MRR,37 *sa 11:13
~I PRGE.SBS I
and discovery material, together with any affidavits, show that there is no genuine issue as to any material fact and that the e
i moving party is entitled to judgment as a matter of law.
e i
i F.R.Civ.'P. 56(c); crav v. York, 957 F.2d 1070 (3d Cir. 1992).
k In orsar to establish a prias facie case of liability i
j under section 107 of CEltcLk, the plaintiff must shows (1) that t
the site is a " facility"; (2) that a
- release
- er " threatened i
release'. or a " hazardous substance" from the site has occurred; t
(3) that the release or throatened release has caused the plaintiff to incur response costs; and (4) that the defendants are responsible persons as definee in 42 U.S.C. f 9607(a).
LA.,
i v, anrimal. Yna, 72s F.supp. ess, 837 (M.D.Pa._1989).
i All of the defendants haya wtipulated to the first three elements above.
That is, the defendants agree that Metcoa i
i is a " facility" within the meaning of CERCIA*; that hazardous i
substances were ' released
- at tna site's sna that the p3sincirr i
has incurred response costs as a result of the release of hasard substances there.'
As to the scrapper /dealar defendants, the fourth I
elenant of the plaintiff's prima facia case has also been l
established, as this court has already held that said defendanta
~
_* arranges" for the disposal and/or treatment of hazardous s.
see, stipulations of Undisputed Material Facts for Phase I Purposes at 1 1 (attached to A to plaintiff's instant action)ppendiz 4, Volume V of Appendices j
4.
Id. at Y 2.
5.
Id. at T 3.
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- ' MMft 17 '33 11813 i
PAGE.8BE
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substances at Metcoa.
See, U.S._v.. Passes, 794 F.Supp. 131, 137-1 I
}
158 (W.D.Pa. 1992) ('Pasana.I").' Because of this Court's ruling in Pasans L most of the scrapper / dealer defendants agree l
i to the entry of summary judgment as to their liability.'
i newever, these defendants argue that a determination as to the j
joint and several. nature of their liability is inappropriate at t
this time, since such issue is not to be addressed in Phase I of the litigation.
j 1
The Third circuit has made it clear that CDLCIA doet
-tj not opeoirically prcnride for joint and several liability 1g cases involving multiple defendants, as here.
U E._v. 11r*=n Alumir-t' Egg 3, 964 F.2d 252, ass (3d Cir.1992).
Thus, the Court 3GSt determine, under comwon inw principles, whether tne imposition of 11 joint and several liability is proper. 'Id.
To assist it ih 1
1 making this ceterr.ination, the court in Maan rolled upon the
'l I
i 6.
Under Section 107(a)(3) of CERCIA, "tesponsible parties
- includet
'i any person wne by contract t
agressant, or otherwise arranged for disp,osal or treatment,
'I or arranged with a transportar for. transport j
for disposal or treatment of hasardous subertances-owned or posses, sed Dy such person, by any other-party or entity, at any facility owned or operated by anothar party or antity e
and containing such hasareous substances...
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7.
see, Desponse to plaintiff's instant action at p. 2, which was submitted by all of the oorapper/emaler aerendants exompt for climax, Dana, Intranstoo, and Monico.
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i a-2 e-o s: te m m.T l
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PAGE.087 l
following principles set forth in the Restatement (second) of
.{
Torts:
i section 433A of the Restatement provides that, I
when two or more joint tortfeasors acting independently cause a distinct or missgle hars for which there is a reasonable basis for division socording to the contribution or each, mach le subject to liability only for the l
portion of the hora that the indnvisual l
tortreasor has caused.... Newever, (unoer section 875 of the Restatement) where joint i
tortfeanors cause a single and indivielble bats for which there is no reasonable basis for division according to the contribution of each, auch tortfessor is subject to liability for the i
antire hara.
- 14. at 268-69.
t Thus, as the AlsaD court recognized, it is "of critical ~ '
1mportance" to determine whether a harm is divisible and capable of apportionnant, or indivisible, so as to subject the defendants i
to joint and several liability.
Id. at 259.
The defendants bear the burden of establishing that the I
i damages are subject to apportionnaht.
Id; Restatement (Second) i er Torte s 433s(2).
In AlGAD, the Court determined that the
.i alleged tortfessor should be afforded the opportunity to prove that the haru is civis1 Die due to the " intensely factual nature of the ' divisibility
- tenuta.
ALEsn, A64 F.2d at 259-71.
As the.
k Court opined in Alman, air the defendant can prove that the harm is divisible and that it caused only some portion of the injury, t
i it should only be held liable for that amount."
- 14. At 270, n.
29.*
t 4.
I held to determine the divisibility of harm.In Alnan, the court romaneo i
also noted that both the
- contribution" inquiry and theThe Court in &lnan coontino.d...)
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03-18-93 05:5'4PM D O.J ENVIRN Uf# -
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f e ag-03 t*:20 M 3003
- cre2c:noese a m
- -mar 17 's3 11:14 j
PAGE.tas
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t Mere, ih their response to the. plaintiff's instant notion, the scrapper / dealer defendants assert that they have not had an opportunity to conduct discovery on ths " divisibility
- issue, believing that such issus was reserved for Phase II er Phase III of the litigation.
The plaintiff ~ argues that the i
defendants have had the opportunity to take aiscovery on this i
issue; tnat the defendants know from the entry of the M that I
joint and several liability would be a Phase 1 issue as evidenced by generator defenaant Could's divisibility argument in support i
{
of its instant motion and in opposition tSLtAt plaintiff's instant:
motioni and that the defendants are attempting to move
{
this Phase I issue into another Phase because they have Det i
diligently pursued disowvery on the matter.'
t Based upon the innguage in the Oto setting forth the i
[
three phases of litigation, we find both parties' interpretations
.o reasonable.
Nowever, due to the acritical importanos" of this t
{
issue, and representations of counsel for the scrapper / dealers i
that they have not pursued discovery on the "divisibilty of harm
- and ' cost apportionment" issue (believing it to be a Phase II or 4
i Phase III matter), the question of their joint and several t
i liability is premature.
Thus, the plaintiff's instant action on
~
(
s.
(... continued '
t "divisiD11ty* inqu)iry involve a similar analysis *as both recras k
I on what harm the defensant caused *, and that such instuiry mia best resolved at the initial lish111ty phase and not at the oontrianation of liabilitv.pese eines it-involves precisely reittive degrees i
964 F.2d at 270, n. 29 (emphasis in original) s.
see, plaintift's reply at p. 29.
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,y.
-v
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- MbR 17 *S3 11134
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PAGE.BOS Phase I abould be granted as to these defendants' liabilit y, Antt not as to the joint and several nature of their liability.
With respect to the ganarator defendanta, the plaintiff argues that they too (with the exception of Molyoorp)
- arranged" for the disposal and/or treatment of hazardous substances at the site, atxi thus are arasponsible persons
- under cracIA."
specifically, the plaintiff alleges and the record shows that these defendants sent r.aterials to the site that cont i a ned
- nickal, chromium, cadmium, copper, selonius, or thorium", ana that all of these materials are " hazardous substances" as defined by CERCIA"r that the materials sent to the site by these defendants included nickel-endmium sluogus, used or discard d e
nickel-cadmium batteries or portions thereof, Dy p:vducts frca industrial operations, radioactive accep saterials, and cbsolete, defective materials (i.e., " scrap
- materials) that could n t o be used productively without processingu s that meteen preceemed the scrap r.ateriala which it receivad so as to make alloys by
" melting, shearing, cleaning, crushing, saving, banding 1
lo.
we note snat the plaintiff has withdrawn its inartant notion against Xolycorp.
\\
See, plaintiff's reply at p. 2, n, 1.
11.
sea, plaintiff's statament of material facts at Nos. 7,11,
{
ze, 27, anc 31 also see, Appendix 2, which is attached to voluae I of Appendices to plaintiff's instant motion; and F d D* position at pp. 90, n
319-320, 328, and axhibit 20 attached e or thereto.
12.
See, 4 0 C. F. 3L. E 302.4.
13.
see, plaintiff's statament of natarial facts Nos 24, 20 32 also see, Fedor Deposition at pp.
8, 13, 20, Pessos, Deposition at pp.
30-93, 319-320; 333-334, 691-st2.
5
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3 1 r4,. 9 5 F450 PM i DN t
MA2 17 'es.11:.. 1 3...._.
f vc C:M 2 0 C s 310 'b6 PRSE.t!O i
drilling, tapping, briquetting, and baling" the materialeN and t
that a disposal and treatment of hasardous substances coeurred at
{
the site, See, Pommes I, 794 F.Supp. At 156-157.
In m==-- 1, this court held:
1 in situations as here, where a defendant charactarises its transactions with a party who has disposed et and hazardous substaneos no/or txeated its i
aassle' rather than an
- arrangement", CERCIA liabilty asy be found in the following circumetances i
)
wnere a datandant sells its basardous waste s
substances and 'makes the crucial decision" i
on how its substances are disposed of or I
treated retains o(citation omitted]r where a defendant wnerstip of its substances and has authority to control the way its substances i
are treated and/or disposed of_[ citation omitted); and where a defendant sails its hasardous substances to R facility With knowledge that the substances will be disposed of thera (citations omitted).
Courts have refused to impose CERCIA j
liability, however,...it a transaction involves the " sale of a new useful product containing a hazardous substanoa, as opposed to the sale of a substance merely'to 'get rid or it' [ citation omittedJ.
Id. =1 is s. "
i liare, since the record shows that the generator defenda t ns (except for Molycorp) sant scrap asterials to'Metoon which 14.
Sam, plaintiff *a statement of material facts Nos 41.
S, 6,'38-15.
some of the generator defendants did not charge or roo payment from Metcoa.
See, plai facts Nos. 3 and 21.
However, ntiff's statement of material consideration for their estarials, *[t]he direction of flow ofeven where the de monetary consideration is not the test of liability under CEDCIA... the reisvant inquiry fia) ght deci$ed to place th waste into the hands.of a racilhty that contains hasardon e
wastes.*
>==--- r, at iss, quoting ce==evntien 4
e 619 F.Supp. at 240 (amphasis in or:,ginal), citingm== leal, 5B3Dl4,
- v. 1 & F Matarials ca..
, traiM steem=
Yne., 882 F.3upp. 442 (3,D,111. 1984).
9 i
3 u.s,s c : o r. W ::)N
' *..rinR*17 '03 tIa15
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+ 41 ( i N.,.,,,.,
(
necessarily required processing in order to be productively used 4
they
- arranged" for the disposal and treatment of hazardous substances there and are liable under i 107.
As to defendant Lavranse County Industrial Development Authority ('LCIDA*), it is not disputed that at all relevant times, said defendant was the remrd owner of the alts."
- Thus, under 3 107(a)(1) and (2) of CERCLA, LCIDA is a " responsible party"."
Defendant Marvin Peases, an alleged owner and/or operator of the sita, has been discharged from liabil(ty under Chapter 7, Title 11 of the Unitad States Bankruptcy Code "
Tharafera, the plaintiff's motion for summary juegzant on Phase I should be granted as to all defendante except for Nolyoorp and Marvin Pesses as to liability, but not as to tne joint and SaVtral nature of their liability.
De*nndant could's ratien for sn===w Ju&naante could's instant motion la presicated upon two argusants.
First, it asserts that the plaintiff cannot astablish 16.
Rae, plaintiff's statement of material facta No. 35.
17.
Section 107(a)(1) and (2) impose liability ont (1) the owner and operator of a vessel or a facility (2) any person who at the time of disposal of any l
basardous zunstance owned er operated any racility which such hasardous substances wara d.irpeeod of at 42 U.s.c. s ssorta)(1) ana (2).
t 16.
is attached to Mr. Pesass' response to the piSee, Disobarge
, 1991, which motion at axhibit s.
e.intiff'a instant 10 i
3..,p.33
'I4 MnD 17 '93 11816 PAGE.012 that it " arranged" for the treatment or disposal of hasa d r ous substancas at the site.
This argument is moot, as the court has determined in its above ciscussion of the ganarator def endants that Gould did
- arrange
- for such treatment and dispo sal as a natter of law.
Second, Gould argues that it is not liable under 1 107 of CERCIA because the harm at the site is divisible
, and it has already paid more than its fair share of the response costs incurred there.**
In the alternative, Gould moves for an Order pursuant to F.R.civ. P.
- a6(o) that it is not liable for additional respones costa to be incurred at the siteunth such costs have exoseded $40,000,000.
Gould contanas that tb6 s,aterials which it aant to the site comprise less than one half i
of one paroant of all materiale sent there, an4 that its fair ahare will not exceed what it has already paid until respons e
ccsts incurred exceed $40,00,000.
In Alcan, Aller.g, the ThirQ Circuit s'tatad; the full amount of a plaintiff's damages [W)hore a to the hara, it la the tortfessor's burdsn toaccording establish that the damages are capable of su=b apportionment.
964 P.2d at 269.
The burden of proving divisibility of hara is substanti l a, and the analysis is factually complex ass it will require an assessment of the relative toxicity, migratory potenti l a and mynervistic capacity of the hasardous vasts at issue."
14.
19.
onulc avers that it has spent acre than $232 000 i costs at the site.
see, Affidavit of James Gibbs attached as ex.hibit B to Cottid's instant 1 moving pa,p n response vaich is ers.
1 11
03-18-93 05:57PM DOJ ENVIRN Utf r 10/ 4 0
- 3. i n, s a 5:50 m 2 DN
, tiAR 17 '93 12:IC PAGE.613 Here, Gould assarts that.thw bara at the sita is divisible based upon the radioactive astarials and non-radioactiva materials which sere sent to Metcoa. It svars that some or tna narz at the sita resulted solely from the presance of radioactive astarials thars"t that the materials which'it sent to the site were not radioactive"r and that said materials were less mobile, less reactive, less contaminated and less hasardous than other materials which vara sent to Meteos.aa It is elsar that Gould need not show that its materials remained separate from the other hasardous substanosa sent to the
_t site, f or ecaminglad' waste is not synonymous with
' indivisible' harm.*
Alf*an, 964 P.3d at 270, n. 27.
Nonetheless, Gould must prove that the harm at Metcoa 13 divisible and that the damages are capable of some reasonable apportionmant.
.Id. at 271 It is not disputed that both the radleactive and non-radiactiva materials were cosaingled at the site.
At this juncture, however, Gould has not shovn that its was*m are divis1 Die therefrom, since it has failed to show aa relationship botveen weste volume, the release of hazardous substances
,and the harm at tr.e site."
U.9
- v. Wonnanta ca., 858 F.2d 160, 172
~
(4th dir.
198s), Eart. denied, 49G U.S. 1106 (1989).
- Likewise, 2o.
instant motion.See, Appandix S, Volume V of Appendices to plaintiff' s
21.
see, Afridavit of Robert Fedor at 1 12 eithibit A to oculti's instant moving papers, Which is attached as 22.
Id. at Y 14.
12
e: y o
- MAR 17 's3 11:37 PAGE.214 it has not shown that the harm at the tita is reasonably capabl e of apportionment, since it has not presented evidence " disclosing the individual and interactive qualities of the substances deposites there.'
Id.
Since Gould has not met its " substantial" burden at this tiac, its motion for st=mry judgmant should b a
e danied.
patqndant cif==v' wotion for p w ov Jud e tt climax, a "rasponsible py* harain ($ne, Passes I),
moves for su n ary dudgment on the affirmative defensa set forth in i 107ib)[3) of crRCIA.S' Under this defense, a responsibis 23.
more time to conduct discovery on this matter.In accordance w e
may again present evidence th%t it has paid more than its " fair Tarraatter, it share *.
soe, A,1can, 9M F.2d at 270, n. 29.
24.
Section 107(b)(3) providas in relevant parts There shall be no liability under otharvias liable who can establish by asubsmotion (
or throat of release of a hazarcous substanesbrepon and the damagne resulting tatrafrom vers caused solely by othar(than an amployse or acent of the3) an act or caission detandant, occurs in connection with a contractualor than one with the defendant... if the datandantreistionship, ax establishes Dy a preponderance of the evidence that (a) he exercised dua care with respect to the hazardous substance concerned considsration the characteristics,of suchtaking into hazardous attbetanoa, in light er all relevant facts and circumstanosa, and (b) be toolt precautions against foreseosbis acts or consequeness that couldomissions of any such third party and the auch nets er omissiona. foreseeably result tram 42 U.s.c.
wo7(b)(3).
13
i y,
, o a ;,
u u, u o r su uvJ zuvAMU Ll L &*
Y$
3 s e,-es H e o w. ;DN 1
- HRR 11 *93 12s11 It20Jctrc0;ca u M PAGE.815 l
i I
i party under i 107(a) may be absolved from liability if it can abow by a preponderance of the evidenoet (1) that the release of a nasardous substance was onused solely by the meta or omi ssions
{
of a third party who (a) was not an employee or agent of the defendant and (b) did not have a direct or indirect cont ractumi relationship with it; (2) that.the defendant emareined due care as to the hasarcous substancer and (3) that the defendan I
o precautions against foreseeable acts or omissions of the unrelated third party.
M. v. rr--,, 757 F.Supp. 397, 413 (D.M.J. 1391).
l Sinoa this defense is based upon a " comp 1ste absence of
~
causation *, Id., it doom not appear that clinax can avail itself.
j i
of such defense.
The record shows that climas and defendant sherritt had a business relationship, whereby ns nickel povaar owned by sherritt was sant to climax for the purpose of
}
i converting the powder into solid DS Mickel products"; that l
Parsuant to the partias' relationship, all scrap metal prod ucts i
and by products rasulting from climax' conversion process wer i
owned by sherritt, e
and sharritt contro11st the disposition of the.
os wicket serspa s that pursuant to their relationship, climax i
acted as bailee with respect to the nickel scrap and followed l
t sherritte n instructions as to its disposition"s that on six i
oocasions, c11mmu tranererred possession or anerritt' s os Wimmel as.
see, cif==ve statement or matarini foots at no. 3.
me.
Id. at Nos.
4, 5, 7 21 Id. at Nos.
6, 8.
1 l
14 i.
t
_.... --~
.s c *
- s**
.. we
=w I
3 36-03
":f0 PM :!CJ MAR 17 '93 21: 29
- Cr0102?t0;si+i ;4 l
PAGE.sts i
V scrap to Metcon pursuant to purchase contracts between Pese i
I sherritts" that climax was not a party to the contracts betwee t
sherritt and Pesa w for Possear purchase of the DS Wickal ma i
f armi it was not paid by Posses for such scraf; and that it -
participates in the transfer by labelling, soeurely peok
- aging, i
and sealing drums containing the D5 Nickal aersp for plakup
)
at its plant by Passes and preparing appropriate paperwork f transters. "
,or,such, In order to avail itself of the 6 107(b)(3) defense climax ar.ust demonstrate >y a proponderano,iof the syi(artgg "a totm11v unres area th h.a p-m is the A21a cause of the release. " O' Mail v. pioille, (emphasis in original), Aff!!d., saa r.2d 176ss2 F.supp. 70s t
j E8KA d*"i*d (1st cir. 1949),
I AWt DQB American f5tanm=4d ca_
or.sy, 4,3 g,g, v.
m 1071 (1990).
In Pleille, generators of hazardous wastes (which were disposed of at the site) sought to avail themselves i
197(D)(3) defense by arguing that they of the t consigned their wastes to licensed transporters who had no contact with th e site, and that they bad no direct or indirect relationshipwith the " responsible third party" that transpotted their wastes th ere.
In rejecting thin argument, the Plefi3e court found that the defend t
i failed to show that "a totally unrelated third p ants had i
arty" was the
" sole" cause of the release, sinos #it is equal %y lik l e y that
- 2s.
Id. at Mos. Io, 11.
i 27.
Id.
at 20s. 12, 13.
20.
Id. at No. 14.
i f
Ls
-. _ _ =.
-~
3-i 3-28-03
- 150 W 'IO#
u,m e:29e.n e ru:4 l
. "
- MAR 17 's3 33818 PAGE.Bl?
t either the licansed disposers or o suboantrar ene ne n-d1.-
i deposited the vaste at the site."
632 F.Supp at 727-72a (emphamis maded).
j Here, clinex has failed to show that Marvin Posses was "a totally unrelated third part "
y and the ' sele" onuse of the release.$$
Although Climax did not have a direet contractual relationship with Marfiri Posses, it would appear that climax i
acted as a Smiddlemas" vi th respect to the contractual i
arrangement between Sherritt and passes, whereby Sherritt's Da i
Mickel scrap was deposited at tae site.
+
C11aar undertoo]Lpuch rois pursuant to its men agreement with sherritt.
By transferring possession of sherritt's ecrap to Metcoa on si x
oocasions, by labelling, paokseing and meating the scrap for j
Fesses' pickup at its site, and by preparing the appropriate i
paperwork for such transfers, Climaw cannot say that Mr
{
. Passes was a " totally unrelated third party" and that it die not have i
1 indirect contractual relationship with hi an i
m.
I An " indirect contractual reistionship" can be chown wbare there is m a ficv'of benefits or obligations" between the defendant and the third party.
U.S. v. A & W clean =va and i
Lannderne..
ins 788 F.Supp.1317,1327 (s D N Y j
1992).
Citing -
Pid 11
% sunra, se an extaple of an " indirect Q M ctual relationship", the oowt in A a a c1===-*= wplainoas j
In 11el112, it to apparent that, in i
21.
In its motion, Clianx asserts that Marvi k
responsible third party whose eat or omission solel n Pasees was the 1
harm.
y caused the
'i 16 f
i
.=..
o3 g3 g g ; p 3 r ivi uVJ O14 V I IIIM UU#
2"10//0 I
I 3 2e-s,a re :t0 PM 3007 uca.:n,,n
..m
- . ria ~17 'es 1 i a s
'i PAGE.818 t
disposlag of tne generator's waste, the i
i hypothetical neubcontractors would a
simply have been axecuting the duties i
which the vaste transporters owed to tha
_i 2-ganarator of the wasta.
24.
Similarly hers, c11aar was fulfilling sherritt's obligations to Peases by transferring the DS Nickel morap to kia Since a benefit inured to Posses as a result et climax' i
transfers, there was an indirect contractual relationship bet i
ween the parties.
j Furthermore, in light of this Court's determination i
that there ' wore twenty-four other parties who were liable fo e
r the disposal anS treatment of hasardous substances at the site C11may has failed to show by a preponderance of the evidence that Marvin Posses was the " sole n eaume of ta release.
Accordingly, i
Clitar cannot avail itself of the I to7(b)(3) defense
, and its action for summary judgment enould be denied.
I Defandanta Aven r, nharritten h t3an for >=retsi e
w gua==ne:
In Avco and sherritt's instant motion on Phase I of-unair counterclaims, in which defandant Union Carbide has $eined{
i it is argued that the plaintiff is a responsible party j
within the meaning of CERCLA and is also liable under i 107 " The.
\\
~counterciaimants acknowledge that the question of the plaintiff'
{
t' s
33.
In their countarclaims, it is al Wuelear segulatory commission (amaca)leged that the' SPA, the employees of the plaintift
_and other agents and
}
to the release of hasareous, substances at the sitincluding,the Air Force j
plaintiff is jointly and severally liable for respo;nse oosta e that the j
incurred therei and that it is liable in contributio ineeerstrication, motoft ana recoupment.
n, i
the anc and EPA in response to these countathe plaintifi o
ars os bohnif of i
563. his notion was denied in the court 8s Rrcianas (Docket No 1
Racc)umendation dated May 1, 1991.
eport and i
17
'i
')
I 1
m
.m 3-se n cac m ;rca 1D
,M*R*17 R.1 2eag 2 m set = %.. w,,.
l PAGE.333 i
i i
contribution to the hara at the sita and its ultimate share of i
liability are matters to be addressed in Phase II and Phase III i
of this action.**
j t
With respect to the Air Force, it is alleged and the i
i record shows that netoon and the Passes Company obtained used and i
obsolete materials and industrial by-prodects from the Air Foroe 1
which contained nicM1 and cactatum, and that Passes processed i
i some of those materials **t and that a portion of said materials j
f could not be used productively without processing.**
While the j
Air Force denies that it sent any material to the site (it aver i
,, t,,
s j
that its used or surplus materials "were turned over to an th o er i
Defanae Department Agency, which sold them, and which required i
buyers to pick them up")", it admits that under the tacts i
presented in this case, it is liable under i 107 or catczA.
The counterclaimants aleo allege that the National Aeronautics and Space Administration (* NASA") sent scrap to th i
e site that it owned or possessed which contained nickal, chromium and thoria", and that the ceneral Services Administration t
33.
Sea, counterclaisants' instant action at p.
L, n reply at p. s.
\\
1, and its I
34 instant action at 3 1 and Air Force and EPA amendedSee, i
admission requent at gg i and 2.
s responses to 35.
see, oonnterelaimants' natorial ' rects at g 4.-
i 36.
See, Air Force and-EPA amended responses to admissions t
request at 1 1.
37.
Bee, Air Force, N1tc, and EPA opposition memorandum at p. 4.
i 38.
See, counterciaimants' statement of facts at { s.
As 4
i
5 3-18-93 06:0OPM DOJ ENVIRN DEF r2U/23 3 a.a e ce ex m e wame..u. ;.
. na n *17 *ss 2 2 ss PAGE.E20
("GSA") initiated shipments of hazardous substancas to Matcoa.
The plaintiff does not deny these assertions.
Instead, it argues that NASA and c3A are not Countar-defandants in this action since the Air Force, EPA, and NRC are the only federal agencias named 1.n the counterclaims and served.
It appears, bevvver, that no federal agency, including the Air Force, xPA and NRC, 'has been separately named and served in the counterciaims.
Rather, the counterolaims are brougnt against the plaintiff as a single antity.
Since nothing in N LA nor in Federal Rules of civil Procedura 13(a),(b), or (d) requires counterclaims,against the I!nited States to be brought against a specific agency or departsant, we find no r, erit in the plaintiff's argent.
An to the rPA, it is allegea and the record shows that after conducting a radiological survey or various drums and containers at the site, the EPA took samples from cartain drums
!cr the purpose of sampling activities", and placed said a
sanples in separate jars which it labelled and than stored in drums at the sito.**
While the contents of these drur.s can be enaracterized as mixed wastasa due to the various saapia jars stored therein", 'there is evidenes vbich shows that the EPA did I
not ec==.invie tasse radioactive anc non-radioactive samplas "
35.
bazardous vastes.It took animplea or both rat 11oactive and non-radioactive 40 Id. at No.
i los Doolaration of staphan Jarvela at 116-11 41.
see, countarolaimants' stat *Eant of facts at Nos. 11-12 42.
See,.Tarvela Dec1kration at (( 11-15.
19
....n..
u & 2" 3 3.n
,5^W & DOI
, MAR *17 *E3 11820 vc2ca.?aco st m.
PAGE.821
\\
As to the NRC, it is alleged that the NRC li i
site for the handling and/or storage of hazardou censed the reviewa<t and monitorea activitias at the alt s substances, e, and enabled the evner to hold the site out as a licensed and'f ederally-approved facility."
The counterclaisants also allege that the (as both a supplier and purchaser of mat plaintift benefitted from the EPA's gnc KRC's licen ierials at the site) practicos at Metosa.**
s ng and enfoxramatsnk It is clear that the plaintiff has waived it inusunity as to the counterclaims brought ag is sovereign a nst it.
CERCLA providas for the vaivar of sovereign.tssunity at 42 9620(a), as follows:
U.S.C. i or the United States (including the executiEa legislative, and judicial branches et gover y
ve, ahall be subject to both procedurally and substantivelychapter in
- extent, nongovernmental antity, including liability unde
, as any section 9607 of this title.
r In addition, when the government instit its sovereign immunity as to compulsoutas an action, it valves assert a mattar of recoupaent.
ry counterclaims which IL S - v. Mien 1**
L. Rep. 21,085 (E.D.Pa.1986)";
Te. y 17 EnVt.
also see, United states v.
43 Sea, counterclaimants' state 1eent of fa cts No. 13.
44 Id. at No. 14.
c5.
Eers it appears that the co a recoupn=,nt claim minoa their clain (1) ari relier thattransaction or oocurranos as th untercialmants have estab11 abed ses from the same United Statest and (3)is similar in kind or nature as thate government's claia (presumably. ) doas not exceea thesought by the amount (continued...)
i 2o
e G-29-D2 5:bc W ; po,-
- McR
- 7.S3 si.ra
- 20 * "*"' 4 PA3E.822 i
4
- Johnson, 853 F.2d 619, 621 (4th Cir 1988) (when the govermaamt waivas issunity by bringing suit, "it does so evan as to those claims that ordinarily are barred by the [ Federal Tort Cl i a ms Actp).-
Mars, based upon the limited record before us, the artent of the EPA and NRC's liability, if anY, must be evaluateQ by the.f4ettinder..
Kowever, hased upon the uncontrovart$,_,
actions of the Air Force, NASA, and GEA in semiing or initiat:
shipments of hazardous substances to the site, it appears th at the plaintiff is also a responsible party under i 9607(
a).(),) of CERCLA.
Therefore, for the reasono set forth above, it is racemeanded that the plaintiff's motion for summary judgment on t
Phaas I (Doc) tat No. 878) be granted as to all defenda t i
n s eacwpt for Molycorp and Harvin Passes with respect to liabili t
ty, but not as to the joi.nt and several nature of their liability
, that the motions for str=rary judgnent rubmitted by defendants Gould (Docket No. 666) and ClirJLX (Docket No. 870) be denied, and that the notion for partial summary judgment br
(
ought by defendante -..
t 45.
(... continued) i of damages re Enyt. L. Rep. quested by the United States.
h, 780 F.Supp. 317,at 21,087; also see, ILs. v. Ownbey EnternrissaRienist, amEA 320 (N.D.Ga. 1991).
i 4s.
waives the sovaraign immunity of the Unitea states frs inwiving nestigent or wrongful mots of Governmant sea, Dhit*9 om claim Mtates v. flauhart, 111 S.Ct. 1267 (1991).
employees.s
np 7
1 es s
1 Avco and sherritt (Docket No. as4).in whien Uni on carbide han
$oined (Docket Ro. 577) be granted Es to the plaintiff's liability.
The parties shall have until March 31, 1993 to fil objections to this Report and Recozzandation.
e Failure to flie timely objections may constitute a waivar of any ap pellate Righto Respe u11Y
- itted, N
,Au &
ROBERT C. N United Ststes Mag'isbah%
Dated: March 12, 2903 G
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i ATTACHMENT -
International Brotherhood of Electrical Workers v.
Southern Nuclear Operatina Company & NRC, Civ. No. 93-A-397-S (M.D. Al.,
filed April 1, 1993) i 4
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s AO 440 (Rev. 5/BS) Summons in o Civil Action e jinifeb $tates ylistrict ([ourt MIDDLE
' ALABAMA
.__..-- -.. _._. _ DI ST it l C.T OI.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, SUMMONS IN A CIVIL ACTION PLAINTIFF, CASE NUMBER 93 /)- M 7--5 v.
SOUTHERN NUCLEAR OPERATING C07'ANY, INC. and UNITED STATES NUCLEAR REGULATORY COMMISSION, DEFENDANT.
T 0: m~ ~ **.ii e' *~ru United States Nuclear Regulatory Commission Region 11 101 Marietta Street, N.W.
Atlanta, Georgia 30323 YOU ARE HEREBY SUMMONED and required to file with the clerk of this Court and serve upon plait 4TIF F's ATTORtJEY mew eaa em. si Lexa E. Dowling Attorney at Law Post Office Box 1193 Dothan, Alabama 36302 60 days aller service of an answer to the complaint which is herewith served upon you, within _
this summons upon you, exclusive of the day of service. If you f ail to do so, judgment by def ault will be taken against you for the tellel demanded in the comp'aint.
?"'
'll 43 OAlE
'/
CLERK A/6 h G ntt.-
i BY DEPUTY CLERK 1
l FILED
~.
. : ', - : 1 ' ~. ' :
MA9319H ra:.;. 1 T.:al: CD IN THE UNITED STATES DISTRICT COURT CLERK
- FOR THE MIDDLE DISTRICT OF ALABAMA U. S. DISTRICT COURT
~
MIDDLE DIST. OF ALA.
,y' 'r-
~;~
SEVENTH DIVISION INTERNATIONAL BROTilERHOOD
)
OF ELECTRICAL WORKERS,
)
)
PLAINTIFF,
)
CIVIL ACTION NO.
,[7-j
)
)
vS
)
SOUTHERN NUCLEAR OPERATING
)
COMPANY, INC. and
)
UNITED STATES HUCLEAR
}
REGULATORY COMMISSION,
)
)
DEFENDANT.
)
ColiPIAINT FOR DECLARATORY JUDGMENT 1.
Plaintiff, International Brotherhood of Electrical is a labor organization formed and existing for the f
l
- Workers, purpose of representing employees in labor negotiations and labor related matters.
2.
Defendant, Southern Nuclear Operating Company,
]
is a corporation organized and existing under the laws of I
Inc.,
the State of Alabama, engaged in the business of operating the f
Farley Nuclear facility in Houston County, Alabama,-under contract with Alabama Power Company.
3.
Defendant, United States Nuclear Regulatory is an agency of the United States government charged Commission, with the responsibility of regulating and overseeing the operation of nuclear production facilities.
4.
This is an action for Declaratory wudgment pursuant to Title 28, United States Code, S2201, for the purpose of determining a question of actual controversy between the parties as hereinafter more fully appears.
5.
Jurisdiction of this action is based upon Title 28, United States Code, $1331(a).
6.
That the Defendant, United States Nuclear Regulatory Commission has enacted and published at Section 73.56 of the Code of Federal Regulations certain requirements and restrictions relating to personnel access authorization to nuclear power plants.
On or after March 13, 1992, the Defendant, Southern Nuclear Operating Company in purported compliance with 573.56 CFR circulated a memorandum directed to all employees at as follows:
the Farley Nuclear Plant in Houston County, Alabama, COMPLIANCE WITH 10CFR 73.56 ACCESS AUTHORIZATION On March 13, 1992, Southern Nuclear Operating Company documented by letter to the Nuclear Regulatory Commis*sion that-plant Farley had implemented all elements of (NRC),
Regulatory Guide 5.66 to satisfy the requirements of entitled " Personnel Access Authorization 10CFR73.56, One of the Requirements for Nuclear Power Plants".
requirements of Regulatory Guide 5.66 is that all individuals with unescorted access are responsible for reporting any arrest that may impact upon his/her trustworthiness.
It is the responsibility of all employees 1992, to their to report ADY arrests since March 13, supervisor in order for an evaluation to be made regarding trustworthiness as it relates to access authorization.
We appreciate the cooperation of all employees to insure our continued compliance with this regulatory requirement.
l l
I f
I That members of the Plaintiff labor organization have been Southern advised by supervisory personnel for the Defendant, Nuclear Oparating Company, Inc., that the requirement to report "any arrest" is not restricted to any particular classification i
of criminal activity or criminal offense and shall include traffic and fish and game citations and other non-custodial infractions.
5.
That the action o'f the Defendants, Southern I
Nuclear Operating Company, Inc. and the United States Nuclear Regulatory Commission, in requiring under threat, express or i
implied, of disciplinary action, the reporting of such information in the absence of guidelines as to arrests for l
particular criminal offenses which have been deemed to relate to 1
a determination of trustworthiness, is violative of the e
constitutional right to privacy and to due process.
WHEREFORE, Plaintiff prays that the Court enter a Declaratory Judgment requiring l
That the Defendants specify the criminal offenses i
1.
for which an arrest would impact upon an employee's trustworthiness, specifically excluding therefrom any arrest or I
citation for traffic, game and/or fish citation; and 1
That the Court grant unto the Plaintiffs a i
2.
i Temporary Restraining Order restraining the Defendants from taking any disciplinary or other action against the members of the employees labor organization until such time as the matter 7
i
)
and before this Court may have been determined; i
4 t
3.
That the Court grant such other and further relief
[
as may be proper.
~
DATED this d[rb day of March, 1993.
4 D
A-it LEXA E.
DOWLING ATTORNEY FOR THE PLAINTIFFS I
POST OFFICE BOX 1193 DOTHAN, ALABAMA 36302 t
1 O
f r
?
U.S. NUCLEAR REGULATORY COMMISSION Jun21cei asg%
i REGULATORY GUIDE Dg s...e e OFFICE OF NUCLEAR REGULATORY RESEARCH t
REGULATORY GUIDE 5.66 ACCESS AUTHORIZATION PROGRAM FOR NUCLEAR POWER PLANTS A. INTRODUCTION B. DISCUSSION in 10 CFR Part 73, " Physical Protection of Plants The access authorization program required by the and Materials," Section 73.56, " Personnel Access rule consisu of three elements designed to comple-Authorization. Requirements for Nuclear Power ment each other: background investigation, psycho-Plants.* requires a heensee to establish and imple-logical assessment, and behavior observation. The ment a program, as a part of its Physical Security background investigation is designed to identify past Plan, for granting unesconed access to protected and accons that are indicative of an individual's trust-t vital areas of a nuclear power plant. The program ob-wonhiness and reliability within a protected or vital i
jective is to provide high assurance that individuals area of a nuclear power reactor. The psychological granted unescorted access are trustworthy and reli-assessment is designed to evaluate the possible impact able and do not constitute an unreasonable risk to of any noted psychological characteristics that may public health and safety, including the potential to have a bearing on trustwonhiness and reliability. Be-commit radiological sabotage.
havioral observation is designed to detect behavioral This regulatory guide provides an approach ac-changes that, if left unanended, could lead to acu ceptable to the NRC staff by which the licensee can detrimental to the public health and safety.
meet the requirements of 10 CFR 73.56 for an access The Guidelines describe the components of these g
authorizauon program. The " Industry Guidelines for elements and include evaluation enteria for granting F
Nuclear Power Plant Access Authorization Programs
- unesconed access. The Guidelines also provide de-(NUMARC 89-01, August 1989, hereafter referred tails for granting temporary access authorization, to as *the Guidelines") were prepared by the Nuclear transfer and remstatement of access authorization.
Management Resources Council (NUMARC). The grandfathenng of access authorization, contractor Guidelmes meet the intent and substance of the rule and vendor requirements, and audits.
,,e,,x, cept in a few areas in which the mle explicitly dif-Pursuant to 10 CFR 50.54(p)(2), licensees who fers from the GLudelines. The Guidehnes are pro-use this regulatory gt.ide to implement their access vided as an Appendix to this regulatory guide.
authorization programs do not need to submit the re-Any information collection activities mentioned visions made to their Physical Security Plans to the in this regulatory guide are contained as requirements NRC for prior approval. However, if a licensee in 10 CFR Pan 73, which provides the regulatory ba-chooses to relax requirements for unesconed access sis for this guide. The information collection require-during cold shutdown as permitted by 10 CFR ments in 10 CFR Part 73 have been cleared under 73.56(d), the licensee is to develop compensatory k
OMB Clearance No. 3150-0002.
measures and submit them to the NRC for review and UsNRC REGl*LAToRY GUIDES The gutoes are assuno en the foisowmg ten trD&S cavesions.
Repuiatry Gutoes a o assueo to oescribe anc maae avahabe to the pub-Ic metnoes acceptatue to ins NRc staff of emp.ementmg specife parts i
of tne Commisson a reguist.ons. to osimaste tecnneoues used oy the t Powr Reactors
- 6. Products staff M ovat atmg specet.c proo* ems or postwatec accioents. or to pro,-
- 2. Researen and Test Remetas
- 7. Transportatson esos psicarce to a.mputams. Repu atry Guioes are not sJbstitutes,
1 Fuss anc Matrials Facdites
- 8. Occupational Hoottn k
regJations. a9e cornohance w?tn tnem as not reagired Metnoos and a Envimnmetal one Snng 9 Antarust ano Finaccial Revow seauuons emwent from those set out m sne pw.oes will be acomptaboo af 5 Materiais anc Paant Protection 10 General tney svomos a t.ases tr tne fmoergs roowsite to the assuance or critm.*
anoe of a prmit or ascense by tre cmimisse"'
e Copes of m ps % w wand tmm me Govenmut Pretmg r
he gunos was sessed after consoeration of commrtts foco'vec from oftco at the current Goo pree. entarmsten on current Goo frees may p
tne mene. comments ano suggest,or's for. m - a s an these be notamec by contactmg the Supermtencent of occuments. U.S.
Pd8's n encowaged at all times, anc Queos watt to reveses. as sp.
Gowemment Prmtmg offee. Post ottco Boa 37052. Wasnmoton, oC i
"80 to accommocate comments are so refect new mtormaton or 20013-7082. toepnve (202)275-2060 or (2c22275-2171.
8 eno N ums Drm DsPs. Aou'nsy be s.armtted to me Regulatory Pubications esssed puces may also to purenasse trom the Nateonel Toermcal sntor.
son. oC 2%56
, y_ g u,c.,, Regmatry commiss.on. wa snmp-maten servece on a stenomo oroer bas,s. Detaos on mis ser.co may be ootamec py wresmo NTts. 5265 Port Ror i Roac. Sprmgteic. VA 22161 s
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epproval pursuant to 10 CFR 50.90 prior to incorpo-Exc:pti:ns to tha Guld: lines r: ting th:m in the Physical S:cunty Plan Th:se com-
" Utis regulatory guide takes two excrptions to the Pensatory measures (e.g., functional tening of secu-Gu dehnes: a review procedure for employees and nty and reactor systems and components. security grandfathering of unescorted access. The explanation searches, enhanced access controls into areas re-g g
tatned as vital, establishment of alternative access requirements) are likely to be extensive and could
- 1. The Guidelines specify a review procedure vary dramaticaUy depending on a number of factors, specifically for permanent employees of licensees.
including the number of workers involved, the extent The rule requires that a review procedure be available f,
of devitalization, and the length and nature of the to all employees of a licensee, contractor, or vendor, plant outage. The beensee would be expected to dem-temporary or permanent, whose employment is ad-onstrate that adequate measures will continue to be in versely affected when unescorted access is denied or place to protect new and spent fuel that is onsite.
revoked by the licensee.
Clarifications to the Guidelines
- 2. The Guidelines aHow grandfathering of any in-In developing this regulatory guide and consider.
dividual holding a valid access authorization either on ing public comments on the Guidelines, some provi.
the date of the implementation of the rule or any time sions of the Guidelines seemed susceptible to possible during the previous 365 days. This would allow for misinterpretation. Clarifications of these provisions the possibility of grandfathering without either a com-are provided as follows.
plete screening or a reasonable period of behavioral observation. To eliminate this possibility, the rule al-
- 1. The NUMARC Guidelines discuss confirma-lows Me_herms-cury'for-those individuals do tion of mihtary service specificaUy with regard to serv-gy, had an uninterrupted access al:thorization fofWt ice in the United States mihtary. This is not meant to least 180 days on^ the date the final rule is published
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be interpreted as meaning that mihtary service for a in the Federal Resiffer.
foreign government should not be considered; a proper background investigation would include a C. REGULATORY POSITION
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good faith attempt to verify any claimed military serv-ice for a foreign government.
- 1. The program given in NUMARC 89-01 *1n-dustry Guidelines for Nuclear Power Plant Access
- 2. The NUMARC Guidelines provide for tempo-Authorization Programs." August 1989, is acceptable rary access authorization for 180 uninterrupted days.
to the NRC staff for meeting the provisions of 10 CFR
{
Any lonEer access authorization is not " temporary."
73.56 subject to the fonowing:
Ustng this provision to allow back-to-back temporary
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access authorizations for an individual by the licensee 1.1. Section 7.2, " Review Process," of the would be a misuse of this provision.
Guidelines does not apply; the review procedure must j
be conducted as specified in 10 CFR 73.56(e);
- 3. The NUMARC Guidelines allow rem. statement of u 4 escorted access authorization within 365 days of 1.2. To the extent that the rule differs from its termination if the authorization was terminated un-the Guidelines in Section 11.0 *Grandfathering," the r
der favorable conditions. Requinng a complete psy-rule will prevail. Specifically,10 CFR 73.56(c)(1) re-chological assessment and background investigation quires that individuals who have had an unescorted after every break of 365 days or less in the behavioral access authorization for at least ISO days on the date
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observation program is not feasible. However, there is the fmal rule is published in the Federal Register 4
information available to the beensee from other need not be further evaluated.
1 I sources. For example, if an authorization lapses be-
- 2. Wensees who adopt this regulatory guide f
i cause an employee took a leave of absence, it is rea-should make the foDowing statement in their cenifica-
, i sonable to assume that the licensee has some indica-tion to the NRC that they have implemented 10 CFR l
tion of the intended activ: ties of the employee durmg 73.56:
I such leave. Funbermore, prior to reinstatement of f
the access authonzation, it is reasonable to expect All elements of Regulatory Guide 5.66 have o
that the licensee will ascenain that whatever activities been implemented to satisfy the requirements I
the employee engaged in during his or her absence of 10 CFR 73.56.
h would not have the potential to affect the employee's Licensees who adopt positions different from this f'
trustworthiness and reliabihty.
5 latory guide should identify these differences in
- 4. The NUMARC Guidelines provide for their certification to the NRC. Further, positions dif -
grandfathering and transferrinE access authorization.
ferent from the ones in the regulatory guide that The rule provides for grandfathenng of access would decrease the effectiveness of the access
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i authonzation at the utibty at which an individual is authorization program should be submitted to the actuaDy working when grandfathered.
NRC in accordance with 10 CFR 50.90.
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5.66-2
REGULATORY ANALYSIS A separate regulatory analysis has not been pro-mented by this guide. A copy of the " Regulatory h
vided for this reFulatory guide. The regulatory analy-Analysis for the NRC Nuclear Power Plant Access F
sis that was prepared for the rule on access authoriza-Authorization Program" is available for inspection tion programs for nuclear power plants.10 CFR and copying for a fee at the Commission's Public 73.56. provides the basis for this regulatory guide and Document Room, 2120 L Street NW., Washington, examines the costs and benefits of the rule as imple-DC, under Regulatory Guide 5.66.
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APPENDDC
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Industry Guidelines for Nuclear Power Plant Access Authorization Programs i
August 1989
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Nuclear Management and Resources Council, Inc.
1776 Eye Street, N.W.
8 Washington, DC 20006-2496 909 FOR /980
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INDUSTRY GUIDELINES FOR NUCLEAR POWER PLANT ACCESS AUTHORIZATION PROGRAMS i
AUGUST 1989 i
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i Nuclear Management and Resources Council,Inc.
k 1776 Eye Street, N.W.
F Suite 300 Washington, DC 20006-2496 l
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ACKNOWLEDGEMENTS These industry guidelines were prepared by members of the NUMARC Working Group on insder Safeguards under1
.:hairmanship of Cartyle (Bud) Fay. Vce President-Nuclear, Wisconsin Electric Power Company, and rnernbers of the
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NUMARC Working Group on Secunty under the chairmanship of Bruce Kenyon. Senbr %:e Presbent, Pennsylvania Power ard Light Company.
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l NOUCE Neither Nuclear Managernent and Resources Courcil, ror any of its errpbyees, members, supporting organizations, '
cortractors or consultants make any warranty, expressed or implied, or assume any legal responsibihty for the accur l
or completeness of, or assume any liability for damages resulting from any use of. any informatbn, apparatus, rnethod.
j process disebsed in this report or that such may ret intnnge pervately owned rights.
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TABLE OF CONTENTS I
fief 1.0 PURPOSE...................................................
I 2.0 SCOPE.....................................................
1 3.0 RESPONSIBILITY............................................
I 4.0 APPLICABILITY.............................................
2 S.0 GENERAL REQUIREMENTS FOR UNESCORTED ACCESS................
2 6.0 UNESCORTED ACCESS AUTHORIZATION PROGRAM...................
3 6.1 Initiation of an Unescorted Access Authorization Program.............................................
3 6.2 Background Investigation El ements...................
4 6.2.1 Empl oyme n t H i s t o ry...........................
4 6.2.2 Education History............................
5 6.2.3 Criminal History.............................
5 6.2.4 M i l i t a ry S e rv i c e.............................
S 6.2.5 Character and Reputation.....................
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6.2.6 Verification of Identity.....................
7 6.2.7 Credit Check.................................
7 6.3 Psychol og i cal Eval uati on............................
7 6.4 Temporary Unescorted Access Authorization...........
8 7.0 EVALUATION CRITERIA FOR UNESCORTED ACCESS AUTHORIZATION.............................................
8 7.1 Criteria............................................
8 7.2 Review Process......................................
10 8.0 TRANSFER AND REINSTATEMENT OF UNESCORTED ACCESS AUTHORIZATION.............................................
10 8.1 Transfer............................................
10 8.2 Reinstatement.......................................
11 8.3 Update Requirements.................................
11 9.0 CONTINUAL BEHAVIORAL OBSERVATION PROGRAM (CBOP)...........
11 10.0 SCREENING DURING COLD SHUTDOWN............................
12 10.1 Devitalization of Vital Areas.......................
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11.0 GRANDFATHERING............................................
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12.0 CONTRACTOR AND VENDOR REQUIREMENTS........................
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13.0 EVALUATIONS AND AUDITS....................................
13 13.1 Utility Programs....................................
13 13.2 Contractor and vendor Programs......................
14 14.0 RECORDS...................................................
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l Attachment A, Minimum Audit Criteria............................
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J.0 PilRPOSE t
I To support the safe operations of licensed nuclear power plants, utilities will implement an unescorted access authorization program in accordance with the following guidelines. These guidelines have been designed with the objective of achieving high assurance that personnel granted unescorted access authori-zation to the protected and vital areas of utility nuclear power plants are trustworthy and reliable and do not pose a potential threat to interrupt the normal operation of a nuclear reactor.
2.0 SCOPE These guidelines define the acceptable levels for conducting and evaluating the elements of the unescorted access authorization program. Major elements include background investigation, psychological evaluation and behav-ioral observation. Additionally, the guidelines (1) provide evaluation criteria for the determination of unescorted access authorization, (2) establish provisions for accepting unescorted access authorization from other utilities, (3) include a grandfathering of personnel who were previously screened, and I
(4) discuss records maintenance, and evaluation and hudits of the access authorization program to assure the utility's unescorted access authorization program is being met.
3.0 RESPONSIBILITY The final granting and controlling of unescorted access authorization is the responsibility of the utility.
Each nuclear utility will infor1n contractors and vendors of t' e existence of these guidelines and of the necessity l
h to follow these guidelines. The utilities are responsible to audit non-utilities who conduct their own unescorted access authorization program and/or implement continual behavioral observation programs (CBOP) to assure these guidelines are followed.
Each utility is responsible for having an independent evaluation conducted of its program in accordance with Section 13.1 of these guidelines.
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4.0 APPLICABillTY lll These guidelines apply to all nuclear utilities, and nuclear utilities
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shall require those contractors and vendors who provide services at the utility's nuclear power plant to also follow them.
One level of permanent unescorted access authorization will be granted to personnel who have been processed in accordance with these guidelines.
Such unescorted access authorization will allow unescorted access to both protected and vital areas as needed.
t 5.0 GENERat REQUIREMENTS FOR UNESCORTED ACCESS The term " unescorted access authorization" applies to the administrative determination of an individual's eligibility to be granted unescorted access.
The term " unescorted access" applies to the methodology or mechanism (e.g., keycard) that provides a physical means of controlling unescorted personnel access to protected and/or vital areas.
O A utility say grant unescorted access authorization to an individual following the satisfactory completion of a unescorted access authorization screening program (Section 6.0) which consists of a background investigation (Section 6.2) and a psychological evaluation (Section 6.3). All of the foregoing may be waived if the individual satisfies any of the following:
(1) satisfies requirements for grandfathering (Section 11.0); (2) has a transferable unescorted access authorization from another utility (Section 8.1); (3) has a previously granted reinstateable unescorted access authorization from the utility (Section 8.2); or (4) will be restricted to protected or devitalized areas during cold shutdown or refueling (Section 10.1). Also, a utility may grant a temporary nontransferable unescorted access authorization valid for no more than 180 days based on a psychological evaluation and a limited background check (Section 6.4).
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There may be some variances between utility unescortcd access authorization programs, e.g. more stringent drug testing requirements. For a transfer (Section B.1) of a valid unescorted access authorization from one utility to another, all requirements are considered fulfilled as long as the minimum requirements of the Fitness-for-Duty Rule and the Access Authorization P.ule are met.
6.0 UNESCORTED AttESS AUTHORIZATION PROG MM 6.1 Initiation of an Unescorted Access Authorization Procram No element of the unescorted access authorization program may be initiated without the knowledge and written consent of the person who is subject to the program. The applicant for unescorted access authorization shall be informed of the types of records that may be produced and retained, where such records are normally maintained, and the duration such records are usually retained.
The applicant shall also be infomed of his/her right to review the information, and to assure its accuracy and completeness, as well as to whom and under what circumstances the information will be released.
Initial unescorted access authorization program screening requirements are applicable to those individuals who have never been screened for or granted unescorted access except as defined in Section 11.0. The initial unescorted access authorization program has two components:
a background investigation (Section 6.2) and a psychological evaluation (Section 6.3).
L An applicant may withdraw consent to a background investigation or a psychological evaluation at any time. When withdrawal of consent is made, all j
processing of work in connection with either the background investigation or the psychological evaluation must cease as soon as practical. Withdrawal of consent shall be deemed withdrawal of the application for unescorted access.
Information collected under these guidelines may be released (Section 14.0) or transferred (Section 8.1) upon the written authorization of l
the individual only on a need-to-know basis. A need-to-know basis means that O
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I a recipient's access to infor1 nation is necessary in the performance of official, g contractual, or licensee duties in determining unescorted access authorization.
6.2 Backoround Investication Elements Except as provided in 10 CFR 73.57, the background investigation covers the time period specified in each sub-element below or since the eighteenth birthday, whichever is shorter.
Licensees need not fingerprint individuals employed at a facility who possess "Q" or "L" clearances or possess another active government granted security clearances, i.e. Top Secret, Secret, or Confidential. This information must be received through the mail from the sponsoring facility and not hand carried by the individual.
Each utility shall make a best effort to obtain required information and to document such attempts to address the applicant's employment history, education history, credit history, criminal history, military service, and the applicant's character and reputation must be addressed in the following manner.
6.2.1 Emoloyment History g
Except as noted below, employment history must be obtained for the past five years through contacts with previous employers by obtaining the following information:
a.
Verification of claimed periods of employment of 30 days or more.
i b.
Disciplinary history.
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Reasons for termination and eligibility for rehire.
d.
Any other information that would adversely reflect upon the reliability and trustworthiness of the individual as it relates to the individual being permitted unescorted access.
e.
Activities during interruptions of employment in excess of 30 days must be verified.
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A best effort attempt to verify a five-year employment history record is required; however, a minimum three year inclusive employment history imediately preceding application for unescorted access is mandatory.
Best efforts include activities such as documented attempts to contact previous employers, obtaining verification by telephone, letter or other means, etc.
If the employment history check could not be accomplished for the entire five-year period, an explanatory statement delineating the reasons must be included.
Because of the multitude of employments many employees experience during a five-year period, such as craft and trade workers, verification of all such employments may not be possible. Consequently, utilities may consider these applicants for unescorted access based upon an inclusive three-year retrospective employment check if the entire five-year period cannot be covered. Under no circumstances may unescorted access be granted based on an employment check of less than three years, and attempts should be made to include the entire five-I year period.
6.2.2 Education Historv Verify any claimed enrollment at an educational institution during the previous five years.
In addition, verify the highest ~ claimed post high school attendance leading to a degree regardless of time.
6.2.2 Criminal History As required by Federal Law (Pub. L.99-399, ' Omnibus Diplomatic Security and Anti-Terrorism Act of 1985'), the utility shall perform a criminal history record check through the Federal Bureau of Investigation in accordance with NRC regulations.
This check shall include the entire crimiul history record of the individual as an adult.
6.2.4 Military Service If within the last five years, a military period of service (claimed or developed) must be verified by receipt of a Form DD214 or other National l
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e.
Susceptibility to coercion.
f.
Any other conduct relating to an applicant's trustworthiness or reliability to discharge job duties within the environment of a nuclear power plant.
6.2.6 Verification of Identity l
Identity must be verified through means such as photograph, social security number, date of birth, or comparison of applicant's physical charac-teristics with employment, education, military and other records, and/or employer and character references who have a personal acquaintance with the applicant.
6.2.7 Credit Check Since financial credibility is another measure of an individual's reliability and trustworthiness, a check of the applicant's credit history must be accomplished. This is normally pursued through local credit bureaus.
If this check does not reveal the requested inforzation, the additional step of contacting the personal credit references listed by the applicant or those developed through other contacts is to be conducted.
6.3 Psycholoaical Evaluation Reliability and stability must be determined by the result of a reliable written personality test or by any other professionally accepted clinical evaluation procedure. The results of such test or procedure must be evaluated by a qualified and, if applicable, licensed psychologist or psychiatrist.
If the results of the written test or other procedure identify any psychological abnormalities which may indicate emotional instability, unreliability, or untrustworthiness, or the results need further clarification, and if unescorted access is still being considered, a clinical interview must be conducted by a qualified and, if applicable, licensed psychologist or psychiatrist.
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the appropriate level of management to evaluate matters covered by these criteria.
In making a determination of trustworthiness or reliability, the following must be considered:
a.
Willful omission or falsification of material infomation submitted in support of employment or request for unescorted access authori-zation.
b.
Illegal use or possession of a controlled substance or abuse of alcohol without adequate evidence of rehabilitation.
c.
A criminal history without adequate evidence of rehabilitation which establishes untrustworthiness or unreliability.
d.
History of mental illness or emotional instability that may cause a significant defect in the individual's judgment or reliability.
e.
Any evidence of coercion, influence, or pressure that say be applied by outside sources to compel an individual to comit any act of sabotage or other act which would adversely reflect upon the individual's trustworthiness or reliability.
f.
Evidence that the individual has comitted or attempted to comit, or aided or abetted another who comitted or attempted to comit, any act of sabotage or other act that would pose a threat or reflect adversely upon that individual's trustworthiness or reliability.
g.
A psychological evaluation which indicates that the individual is j
a risk in terms of trustworthiness or reliability.
h.
Any other infomation that would adversely reflect upon the reliability and trustworthiness of the individual as relates to the individual being pemitted unescorted access.
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.o which was teminated under favorable conditions within the previous 365 days; and (2) cross-checks infomation su:h as name, date of birth, social security number, sex, and other applicable physical characteristics for identification.
In order to minimize problems aim.ated with program variances for a transfer of a valid unescorted access authorization from one utility to another, all reouirements are fulfilled as long as the minimum requirements of the Fitness-for-Duty Rule and the Access Authorization Rule are met.
8.2 Reinstatement The utility may reinstate the unescorted access granted an individual if the individual returns to the same utility and unescorted access has not been interrupted for a continuous period of more than 365 days and if the previous unescorted access was teminated under favorable conditions.
8.3 Uedste Reocirement s A utility shall not authorize unescorted access where the individual's unescorted access has been interrupted for more than 365 calendar days unless the psychological evaluation and the background investigation is updated to cover the individual's activities from the date of the previous background investigation, not to exceed retrospective periods in Section 6.2 or to the period when unescorted access was last held, whichever is less. A temporary unescorted access authorization (Section 6.4) may be issued while the background investigation update is occurring.
9.0 CONT 1HUAL BEHAVIORAL OBSERVATION PROGRAM (CBOP)
Each individual granted unescorted access shall be subject to a CBOP.
This CB3P applies to all personnel who are granted unescorted access. The following must be included in the overall program:
a.
A program with the objective of assuring the detection of alcohol and drug abuse and other behavior that may be a potential threat to interrupt the normal operation of a nuclear reactor.
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c.
Appropriate procedures are followed to assure that plant systems necessary for start-up and safe operation in the subject areas are functioning normally.
11.0 GRANDFATHERING The utility may grant unescorted access authorization to individuals if they hold a valid unescorted access authorization on the date security plan amendments in response to these guidelines are approved or have been granted unescorted access authorization within the 365 days prior to the date of amended security plan approval.
12.0 CONTRACTOR AND VENDOR REOUIREMENTS The utility may accept the results of the entire unescorted access authorization program or any part thereof conducted by a contractor or vendor, provided that the contractor or vendor meets the requirements of these guidelines and that it makes its records available for auditing by the licensee or its designated representative in accordance with Sections 13.0 and 14.0. The utility retains the ultimate responsibility for assuring that individuals granted unescorted access to the facility meet the requirements of the unescorted access authorization program. Utility unescorted access authorization programs are not intended to modify, subjugate, or abrogate any review rights that currently exist for contractor and vendor employees with their respective employers.
13.0 EVALUATIONS AND AUDITS
]3.1 Utility Prooraes An independent evaluation of the unescorted access authorization program and its conformance to these guidelines must be made within 12 months of the effective date of implementation of the access authorization program.
Thereafter, an independent evaluation must be conducted at least once every 24 months. The utility shall retain all reports of evaluation for a period of three years.
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Each utility or utility's contractor or vendor who collects personal l
information for the purpose of processing unescorted access authorizations shall establish and maintain a system of files and procedures for the protection of the personal infor=ation. This information must not be disclosed to persons l
other than the subject or his/her representative, util"..y counsel and officers, I
auditors whose purpose for review would be to inspect program conformance, other utilities if an individual's access authorization is transferred, and those individuals who have a need to have access to the information in performing f
assigned duties in the process of granting or denying unescorted access.
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Attachment A MINIMM AUDIT CRITERIA The following information must be reviewed during the conduct of an audit of a contractor / vendor screening program to meet the objective that the intent of these guidelines have been met.
A.
BACKGROUND INVESTIGATION The auditor shall review screening activities by examining records and conducting interviews with appropriate personnel to determine that screening activities were accomplished in a correct and accurate manner.
In conducting an audit of the background information to reasonably assure contractor conformance with these guidelines, the auditor shall randomly verify the following:
1.
Emplovment History Date the verification was made, complete dates of employnent, position, disciplinary history, reason for termination, eligibility for rehire, and any other information which would adversely reflect upon the reliability and trustworthiness of the individual..The retrospective period for employment history must be reasonably attempted for five years; however, due to the nature of employment histories of some transient workers, a minimum period of three years is required.
2.
Education Copies of transcripts, diplomas, etc., documentation which verifies all claimed attendance within the previous five years.
In addition, the highest post high school attendance leading to a degree must A-1
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B.
PSYCHOLOGICAL EVALUATION To reasonably assure contractor conformance concerning psychological evaluation the auditor must be concerned with the date of the testing and that a psychologist / psychiatrist reviewed the evaluation.
Contractor records must include a copy of the report signed by a qualified psychologist or psychiatrist and, if applicable, one who is licensed.
C.
CONTINUAL BEHAVIORAL OBSERVATION PROGRAM (CBOP)
To reasonably assure contractor conformance concerning a CBOP, the auditor i
must review contractor's program to determine compliance with these guidelines, specifically to address that supervisors are provided appropriate training to I
recognize a degradation in work performance due to alcohol, and drug abuse, or other behavioral traits / patterns that may cause a threat to interrupt the normal operation of a nuclear reactor, and to report / refer persons displaying such behavior to the utility's management for appropriate evaluation and action.
D.
TEMPORARY UNESCORTED ACCESS AUTHORIZATION To reasonably assure contractor conformance concerning temporary unescorted access authorizations, the auditor must be concerned with completion dates for credit check, reference check, and psychological evaluation (within previous year from date unescorted access was granted). The auditor shall follow criteria set forth in Section A for credit history and character references and Section B for psychological evaluation.
E.
UPDATE REOUIREMENTS To reasonably assure contractor conformance concerning updating unescorted access authorizations when unescorted access authorizations have been interrupted for more than 355 days, the auditor must be concerned with the dates of psycho-logical evaluation and background investigation, and the retrospective period of the background investigation must cover activities from the date of the A-3 i
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THIS DOCUMENT WAS PRINTED UFING RECYCLED PAPER