ML20059L867

Discusses Status of Litigation Involving NRC

ML20059L867
Person / Time
Issue date:	11/03/1993
From:	Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
SECY-93-301, NUDOCS 9311170461
Download: ML20059L867 (35)

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ADJUDICATORY ISSUE November 3, 1993 SECY-93-301 (Informat. ion)

For:

The Commission From:

John F. Cordes, Jr.

Solicitor Subiect:

LITIGATION REPORT - 1993 - 16 Macias v. Kerr-McGee Coro., No. 92-C-3389 (N.D. Ill., decided i

October 8, 1993)

This complex lawsuit arises out of plaintiffs' alleged exposure i

to thorium-containing materials on or near Kerr-McGee's property in West Chicago, Illinois.

Plaintiffs brought a suit for money damages against Kerr-McGee in state court in Illinois.

Kerr-i McGee in turn brought third-party actions against the NRC and the EPA on the ground that regulatory failures by the two federal agencies had prevented Kerr-McGee from dealing effectively with the contamination problem at the West Chicago site.

Last year the NRC and the EPA removed the lawsuit to federal district court in Chicago, where both federal agencies filed motions to dismiss.

On October 8 the district court (Moran, C.J.) issued a decision agreeing with our argument that claims against the NRC related to licensing or rulemaking could be brought only in federal appeals courts, not in state courts or in federal district courts.

The district court also agreed with EPA's argument that the CERCLA statutory scheme prevented Kerr-McGee's pre-cleanup claim against the EPA.

Accordingly, the district court entered an order dismissing Kerr-McGee's claims against the NRC and the EPA.

Kerr-McGee has sixty days to appeal.

Contact:

NOTE:

TO BE MADE PUBLICLY AVAILABLE Grace H.

Kim IN 10 WORKING DAYS FROM THE 504-3605 DATE OF THIS PAPER 9311170461 931103 PDR SECY r

93-301 PDR

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.b',

O Hampton v.

United States, Civ. No. 93-A-798-S (M.D. Alabama, decided on Sept. 21, 1993)

This lawsuit was filed by the estate of a former Navy sailor claiming he was negligently exposed to radiation from nuclear weapons tests more than forty years ago.

The suit named the NRC as one of the defendants.

On September 21 the district court (Albritton, J.) dismissed the suit as precluded by (1) a past unsuccessful suit on the same subject matter, and (2) the Federal Tort Claims Act's 2-year statute of limitations.

Contact:

Daryl M. Shapiro 504-1631 Cameo Diaanostic Centre. Inc. v. Brown, No. 9323-SC-5430 (Small Claims Court, Massachusetts, filed on October 12, 1993)

Plaintiff in this suit is an NRC licensee.

It brought this lawsuit in small claims court in Springfield, Massachusetts, against an NRC inspector.

While the complaint says little about plaintiff's claim, it apparently arises out of official NRC actions. The suit seeks $1650 in damages from the NRC inspector.

We have contacted the United States Attorney's office in Boston and are discussing ways to get this suit dismissed.

Contact:

Daryl M.

Shapiro 504-1631 MLC Group. Inc.

v. United States, No. 93-547-C (Court of Federal Claims, filed on Sept.

1, 1993)

Plaintiff sells computer equipment and alleges that the NRC unlawfully reneged on a contract to purchase equipment from plaintiff.

After failing to obtain administrative relief from the NRC, plaintiff brought this lawsuit in the Court of Federal Claims.

Plaintiff seeks about $19,000 in damages.

We are working with Department of Justice attorneys in defending the suit.

Contact:

Robin B. Teichman 504-1559 hn F. Cordes DISTRIBUTION:

olicitor Commissioners OGC OCAA i

OIG I

OPA i

OCA OPP REGIONAL OFFICES EDO ASLBP crry

ATTACHMENT -

Macias v. Kerr-McGee Coro., No. 92-C-3389 (N.D. Ill., decided October 8, 1993)

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I UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINUIS Office of the Clerk H. Stuart Cunningham CLERK Mark Nitczynski United States Department of Land &

Natural Resources P.O. Box 23986 Washington, DC 20026-3986 t

l Case Number:

1:92-cv-03389

Title:

Macias v. Kerr-McGee Corp i

A0 signed Judge: Honorable John A. Nordberg MINGTE ORDEM of 10/8/93 by Hon. James B. Moran.

Granting

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m tion to dismiss-[38-1], dismissing party IL EPA, party Ivan selin, party Nac, party William K Resilly. As datermined by Judge Nordberg (mem op., 08/19/92), the iccue of remand will tw handled caparately. Mailed notice i

This order was entered on the docket by the Clerk October 12, 1993 ATTENTION:

This notice la bcing sent pursuant tn Rule */7(d) of the Federal Rules of Civil Procedure.

It was generated by the automated docketing systam being introduced to handle the civil dockets of this District.

If a minute order or other doetuwnt is enclosed, please refer to it for additional iaformation.

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LNTED STATES DISTRICT COURT, NORTHERN DISTRICT OF It.UNOIS t

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JOHN A. NORDBERG v((."$.$,',' ; ',

JAMES B. MORAN.

Case Nm 92 C 3389 Date Oct 8, 1993 Case JOE E. MACIAS, JR. ET AL. VS KERR-MCGEE CORP. ET AL.

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Enter Memorandum and Order. Federal defendants' mot. ion tu dismiss is granted and NRC, EPA, Selen and Reilly are dismissed. As determined by Judge Nordberg (mem. op., August 19, 1992), the issue of remand will be hancied separately.

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. -1 0 - 1 8 - 9 3 10:08AM DOJ ENVIRN DEF PO4/17 IN TEE UNITED STATES DISTRICT COURT FOR TEE WORTEERN DISTRICT OF ILLINOIS EASTERN DIVISION JOE E. MACIAS, JR., et al.,

)

Plaintiffs,

)

vs.

)

No. 92 C 3389

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KERR-MC GEE CORPORATION, et al.,

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Defendants-

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Counterclaimants,

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vs.

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Hon. John A. Nordberg'

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CITY OF WEST CHICAGO, et al.,

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Defendants-

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Counterdefendants,

)

vs.

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UNITED STATES ENVIRONMENTAL

)

PROTECTION AGENCY and NUCLEAR

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RECULATORY COMKISSION, et al.,

)

counterdefendants.

)

MEMORAMDUM AND_. ORDER Plaintiffs Joe E.

Macias, Jr.,

Victoria Macias, Jonathan Macias, a minor, by Joe E.

Macias, Jr.,

his father, as natural guardian and next friend, and Christopher Macias, a minor, by Joe

{

E. Macias, Jr. his father, as natural guardian and next friend, for and on behalf of themselves and all others similarly situated, originally brought this suit in the Circuit Court of DuPage County, Illinois, against defendants Korr-McGee Corporation, Kerr-McCoo Chemical Corporation and Mark Krippel (collectively referred to as Kerr-McGee), seeking damages for injurico alltsgedly sustained as a result of exposure to thorius-containing materials present nn various public and residential sites.

Kerr-McGea responded by I

8 This case is pentling on the calendar of Judge Nordberg, to whom it was assigned. However, under a procedura recently adopted, j

any motions that might seek to target this opinion are to be directed to Chief Judge Moran, but in every other respect this case remains on the calendar of Judge Nordberg.

7.T j

10-18-93 10509AM DOJ ENVIRN DEF POS/17 No. 92 C 33s9 Page 2 filing a third party complainta against the Nuclear Regulatory I

commission (NRh,IvanSelen, individually and in his capacity as chairman of the NRC, the Environmental Protection Agency (EPA) and William A.

Reilly, individually and in his capacity as administrator of the EPA (collectively referred to as federal j

defendants). Kerr-McGee, in its counterclaim,' seeks a declaratory judgment that the rederal defendants are required to permit Kerr-perform certain removal and storage activities of the McGee to thorium-containing materials at the public and residential sites.

Following the filing of the counterclaim this case was removed i

to the federal district court pursuant to 28 U.S.C.

$1442 (a) (1) i (men.

op.,

August 19, 1992).

The federal defendants move to dismiss the claims brought against them by Kerr-McGee, premising their motion on this court's lack of subject matter jurisdiction.

For the reasons discussed below, federal defendants' notion to j

i dismiss is granted.

BACEGROUND l

Kerr-McGee is the current owner of a facility in the city of j

West Chicago (the West Chicago facil1Ly) that has been used since the 193co to process cres to recover thorium.

Kerr-Mocco acquired l

the West Chicago facility in 1967 as a renuit of a corporate l

Pursuant to 1111nois procedural rules Kerr-McGee stylod its 8

claim es a counterclaim, 735 ILes 5/2-60s; because all parties use this terminology in their briefs, this court will do the same.

In its counterclaim Kerr-McGee also names the City of West

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chicago and various Illinois agencies.

Because this opinion does 3

not Ahvolve these parties, the nature of the claims against them will not be discussed.

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merger.' From the 1930s until production ceased in 1973, the West Chicago facility was used to process ores.

The ores processed at the West Chicago facility are defined as

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" source material" under the Atomic Energy Act (AEA) and era now i

i subject to regulation by the NRC, the successor to the Atomic Enargy Commission.

13g 41 U.S.C.

52014 (z).

As an incident of i

processing the cres to recover thorium, a sand-like waste material I

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is produced, commonly termed " tailings."

These tailings are 1

defined as " byproduct material" under the AEA and are also subject t

to regulation by the NRC.

42 U.S.C. 52114 (a) ; 331 glge Karf-McGee l

Chem. core. v. NRC, 903 F.2d 1, 3 (D.C. Cir. 1990).

)

The thorium mill tailings produced at the West Chicago facility are now located both at the facility and, due to removal t

from the West Chicago facility, in certain areas surrounding West Chicago, including both commercial and residential sites.

Between l

i 1931 and 1959, Kerr-McGee removed the tallings from the facility and transported them to various off-site properties in and around West Chicago.

The tailings were used as landfill in residential i

areas and Reed-Kapper Park, and also washed into Kress Creek froe 1

the weet cnicago faci 11ty and homesito on its banks.

In the mid-1980s, although it denied liability, Karr-McGee, J

with the cooperation of the city of West chicago, began to excavate the tailings from residential sites within West Chicago for storage I

in the West Chicago facility.

Although West Chicago cooperated with Kerr-Maces to bring about the removal of tailings from sites

• Reference to Kerr-McGee includes reference to the prior l

owners and operators of the West Chicago facility.

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within the city, it has actively opposed the removal for storage at the West Chicago facility of tailings from sites outside the city.s the State of Illinois entered into an agreement In May 1987, with NRC, pursuant to AFA 5274, under which the state assumed j

regulatory jurisdiction over source material.

52 Fed. Reg. 22, 684 t

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(1987).

In June 1987, NRC notified Kerr-McGee that it considered l

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the thorium mill tailings to be source material and therefore subject to the regulatory jurisdiction of the Illinois Department of Nuclear Safety (IDNS).

Thereafter, Kerr-McGee sought approval

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i from NRC to conduct the removal of tailings from areas outside of i

West Chicago for storage at the West Chicago facility.

NRC, reiterating its position that it considered thorium mill tailings I

to be source material, refused to act due to the agreement with the l

l Illinois.

3 IDNS responded to NRC's refusal to act by characterizing as "uncesirable and unacceptable" NRC's' position that it lacked jurisdiction over thorium mill Lailings.

The IDNs further stated i

that it would continue to monitor Kerr-McGee's activities to ensure 4

1 compliance with NRC licensing standards.

Thcroafter, Kerr-McGee successfully challenged the NRC's characterization of thorium mill

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tailings ao cource

material, thereby' placing regulatory jurisdiction back in the hands of NRC.

Karr-Mecem chan. corn.

v.

Enc, 903 F.2d 1 (D.C.

cir.

1990)

(thorium Bill tailings are 5 The permanent disposal site of the tailings produced at the West Chicago facility has been the subject of a lengthy license -

amendment proceeding before the NRC.

The State of Illinois and City of West Chicago strongly oppose a plan to permanently dispose of the tailings at the West Chicago facility.

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1 No. 92 C 3389 Paga 5 4

byproduct materials within the meaning of the AEA).

j In October 1990, pursuant to section 274 of the AEA, the NRC I

and Illinois amended the agreement between them to further code regulatory jurisdiction of byproduct materials to Illinois.

Kas State of Illinois, 32 N.R.C.

210, 217 (1990).

The amendment was not to take offact until November 1990.

Under the amended I

agreement NRC cxpressly retained jurisdiction tu determine, on a i

i site-specific basis, whether the Illinois regulatory scheme was at least as protective as the federal standards

(" residual authority").

133 42 U.S.C. $202 (o); 32 N.R.C. at 216-17.

Prior to the approval of the amended agreement, Kerr-McGee had requested that NRC amend Kerr-McGee's license to authorize the removal of the tailings from areas outside of West Chicago, for storage at the West Chicago facility.

NRC issued the license l

amendment in October 1990, one month prior to the transfer of i

i regulatory jurisdiction over the tailings to Illinois.'

In December isso, IDNS, which at Inis point had assumed jurisdiction

{

over byproduct materials, informed Kerr-McGee that its license, including its two-mont.h old authorization to remove the tailings from aroae outside of West Chicago for storage at the West Chicago i

f acility, would expire in 90 days. Despite Kerr-McGee's attempt to get NRC to ban such action by IDNS, in March 1991 Kerr-McGee received notification from IDNE that its license had expired and that if it wishad to conduct further removal of thorium mill tailings from areas outside of west chicago it would have to apply i

• The City of West Chicago has requested that the NRC vacate the license amendment.

That request is pending before the NRC.

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No'. 92 C 3389 Page 6 for a new license from IDNS.

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The EPA and its administrator are authorized to exercise regulatory jurisdictica over sites containing hazardous wastes pursuant to the comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 4 2 U. S. C.

59601 At ang.

In september t

1990, EPA placed Reed-Keppler Park, Kress Creek and certain residential properties, including properties in arcas near West I

Chicago, on the Superfund National Priorities List (NPL).

EPA also informed Kerr-McGee that it considered Kerr-McGee to be a i

potentially responsible party (PRP).

The following month EPA k

l advised Kerr-McGee that it was conducting a remedial investigation and feasibility study (RI/FS) on the NPL sites, and that Kerr-McGee, as a PRP, was prohibited from taking any remedial action at j

the sites without EPA authorization.

EPA since has not allowed j

Kerr-McGee to remove materials tron the NPL sites.

In its countercinia against the rederal defendants Kerr-McGee L

s..k. an order that une and EPA are required to permit. Kerr-McGee to remove thorium-containing materials from the sites outside of I

j West Chicago and to allow their storage at the West Chicago t

facility.

The NRC and EPA have brought a motion to dismism Karr-McGee's counterclaim as to them.

NRC's motion is premised solely on this court's lack of subject matter jurisdiction based upon the j

AEA and the Hobbs Act, 2a ti.s.C.

552341-2351, which NRc arguco f

place exclusive jurisdiction over Kerr-Mecea'n claim in the court of appeals.

EPA's action is based upon this court'n lack of subject matter jurisdiction pursuant to restrictions in CERCLA, i

which limit the timing of judicial review, and Kerr-McGee's failure m

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to state a clain upon which relief may be granted.

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Kerr-McGee contends that it wants to remove the tailings from 3

the sites outside West Chicago and is being thwarted by the interrelated relationships of the various governmental bodies. NRC has indicated that storage of the removed tailings at West Chicago i

l makes sense but has deferred to IDNS.

IDNS, Kerr-McGee suggests,

{

i han stalled removal by siding with West Chicago, which stubbornly.

i opposes even interim storage at the West Chicago facility.

EPA also wants the tailings removed, but it cannot order even their l

interim storage at the West Chicago facility, although EPA thinks that makes sense, without IDNS approval.

Kerr-McGee argues that-l this court provides the one, or at least the best, forum for resolving these competing considerations and'getting the tailings

{

}

removed.

Perhaps there is merit to that overall perception, but that does not confer subject matter jurisdiction upon this court.

I.

.7urimaintion over clain Acainst NRC i

3 In its countercials against NRC, Kerr-McGee requests a i

declaratory judgment that NRC is required to permit it to remove j

thorium-containing materials from areas outside of West Chicago and to store the removed materials at the West Chicago facility.

However, in both its response and surreply to the federal defendantm' notion to

dismiss, Kerr-McGee characterizes its counterclaim against NRC simply as an attempt to force NRC to properly exercise the residual authority it maintains over the conduct of Illinois pursuant to the agreement between the stele and NRC.

Regardless of which type of relief Xerr-McCoo is actually i

seeking, jurisdiction in this court is not proper.

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92 C 3309 Page 8 The Administrative Orders Review Act (the Hobbs Act), 28 t

U.S.c. SS2341-2351, places exclusive jurisdiction over final orders of the NRC in the court of appeals by stating that "[t]he court of appeals has exclusive jurisdiction to enjoin, set aside, suspend or to determine the validity of (4) all final orders of the (NRC) made reviewable by section 2239 of title 42, 28 U.S.C. section 2342(4).

Section 2239 of title 42, in turn, makes revievable under the Hobbs Act any order of the NRC entered in any proceeding "for the granting, suspending, revoking, or amending of any license, (and) for the issuance or modification of rules and regulations dealing with the activities of licensees."

Thus the question is whether Kerr-McGee is challenging a final NRC decision in a licensing or related proceeding, for if it is Congress has established a review structure under the Hobbs Act and the AEA placing review of such matters exclusively in the court of appeals.

Florida Power & Licht Co. v.

Lorion, 470 U.S.

729, 737 (1985).

l Initially this court will assume that the relief Kerr-McGee j

seeks through its counterclaim is as statwd in the counterclaim, i.e.,

a doolaratory judgment that NRc is required to permit Kerr-McGee's removal and storage of the tailings at the Went Chicago racility,. By agreement, NRC transferred regulatory authority over nyproduct materials to Illinois.

one of the outcomes of thin agreement has been that Illinois has revoked Kerr-McGee's license to remove and store the tailings at the West Chicago facility, requiring relicensing beform activities may take place. Kerr-McGee seeks to alter thin outcome by judicial order.

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No. 92 C 3389 Page 9 1

The parties seemingly agree that the NRC's decision to j

transfer regulatory authority over byproduct materials is a final NRC decision relating to licensing, and that any direct challenge i

to that decision must be brought in the court of appeals.'

3ag L

Sunflower coalition v. NRC, 534 F.Supp. 446, 448 (D. Colo. 1982).

i However, the jurisdictional limitations under the AEA and the Habbs i

Act extend not only to direct attacks on the agency decision but l

l also to attacks on the outcome _ of NRC decisions regarding l

licensing.

Federal Communications Comm'n v.

ITT World communications. Inc., 466 U.S. 463, 468 (1984). Illinois'- decision not to allow Kerr-McGee to remove the thorium mil.T tailings until further licensing is simply one outcome of N RC's decision to i

transfer regulatory authority over byproduct materials to the j

state.

As such, any attempt by Kerr-McGee to alter the state's decision not to allow removal and storage is an attack upon the outcome of an NRC decision related to licensing and exclusive jurlediction over the challenge is in the court of appeals.

]

Furthermore, in light of the agreement but.woun Illinois and 1

the NRC, any judicial declaration requiring NRC to permit removal i

and storage would necessarily have to be predicated on a finding i

that the transfer of authority to Illinois was not valid and i

therefore NRC and not the state has the power to permit or dony su=h activitian.

Such a challange regarding the validity of the agreement between NRC and the state is clearly within the exclusive jurisdiction of the court of appeals.

Saa southventarn nell T.1

In f act, such a challenge is currently pending in the D.C.

Circuit.

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e No. 92 C 3389 Page 10 v.

Arkansas Pub. Serv. Comm'n, 738 F12d 9M, 906 (8th Cir. M H)

("where the practical effect of a successful attack on the enforcement of an order involves the determination of its validity, the statutory procedure for review provided by Congress remains applicable").

Additionally, any decisions regarding or related to the validity of the agreement to transfer regulatory jurisdiction to Illinois must be in the court of appeals due to the possible effect such a

decision may have on that court's future jurisdiction.

3.33 Public Util. Comm'r of Oraaon v.

Bonneville Power Admin., 767 F.2d 622, 626 (9th Cir. 1985) ("where a statute commits review of final agency action to the court of appeals, any suit seeking relief that might affect the court's future j

jurisdiction is subject to its exclusive review").

As previously stated, in its briefs Kerr-McGee argues that the relief sought through its counterclaim Js an order requiring NRC to properly exercise the residual authority it maintains over site-specific decisions made under the illinois regulatory s c r. s m e.

Specifically, Kerr-McGee argues that all it seeks is an order that would require NRC to verify that any IDNS action taken concerning the removal and storage of the thorium mill tailings is at. lumut. as protective as the federal standards.

42 U.S.c.

$2o21(o).

The rcoidual authority maintained by NRc is expressly site-specific authority.

As such, NRC only has the power to review the Illinois regulatory scheme as applied to a specific location, and measure its adequacy.

No much decision or scheme has been developed for or applied to the thorium mill tailings outside of j

West Chicago. NRC has not, therefore, had occasion to exercise its

No. 92 c 33s9 Page 11 residual authority concerning such tailings. Thus any challenge to NRC's failure to exercise its residual authority is not yet ripe --

the time for such exercise by NRC has not properly arisen.

333 Abbott Lab.

v.

Cardner, 387 U.S.

136, 148 (1967)

(the basic rationale of the ripanass doctrine is to " prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until f

an administrative decisi,n has been formalized and its effects felt in 1 concrete way by the challenging parties"); Toilet Coods Ass'n

v. Gardner, 387 U.S. 158, 163 (1967); American Truckina Ass'n. Inc.

v.

United states, 755 F.2d 1292, 1297 (7th Cir. 1985).

Finally, even if challenges to NRC's exarcise of its residual authority were ripe (e.g.,

a challenge to NRC's refusal to interfere in IDNS' decision to revoke Kerr-McGee's license),

the doctrine of exhaustion of administrative remedies would require Kerr-McGee to challenge such action first with NRC and then with the court-or appeals.

42 U.S.C.

5202 (o) (3) (D) ; Public Serv. Comm*n v.

Wycoff co..

Inc.,

344 U.S.

237, 246 (1952); Monicker v.

Hendrie, 465 r.Supp. 414, 419 (N.D. T11. 1979).

The end result is that jurisdiction over Kerr-McGee's counterclfaim against NRC is not properly in this court, regardless of the theory on which it 10 predicated.

Dionissal of NRC and salen is therefore granted.

II.

Jurisdiction over elmin Reminst vsi s

Kerr-McGee also seeks declaratory relief against F.PA.

Kerr-McGee seeks an order requiring EPA to permit it to remove the 4

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l 8o. s2 c 33es Page 12 thorium mill tailings from areas outside of West Chicago and store

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them at the West Chicago facility.

EPA argues that this court has 1

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no subject matter jurisdiction over such a claim and that, in any event, Kerr-McGee has failed to state a clain upon which relief may be granted because timing restrictions in CERCIA bar any judicial-challenges to EPA's actions regarding Lemoval and storage until I

after " clean-up" is complete.

I Pursuant to section 113(h) of CERCLA, judicial challenges to any removal or reandial action (collectively referred to at times as " response action") selected by EPA may not be made until after completion of the response action chosen by EPA.

42 U.S.C.

i

$9613 (h) ; schalk

v. Reilly, 900 F.2d 1091, 1095 (7th Cir. 1990).

j Removal actions include those things chosen under CERCLA section i

to4 (b), <a U.s.c. 59601(23), which, in turn, incluaes the decision to conduct an RI/Fs.

42 U.S.C.

59604 (b).

Once EPA elects to conduct an RI/FS, no PRP, L,L.,

Kerr-McGee, may underLake any i

j remedial or removal actions at a

NPL site without Era

'I authorization, 42 U.S.C.

Ess22 (e) (s) ;

however, EPA, in itE discretion, may allow a PRP to conduct removal actions while the RI/FS is being carried out.

42 U.S.C. 59606 (a).

i Kerr-McGee's request for an order requiring EPA to permit it to conduct removal activities at certain NPL sitas can be characterized as nothing other than a challenge to EPA's choman i

response action.

EPA chose to conduct an RI/FS as its initial response action, thereby precluding removal by Kerr-McGee.

Ar.

attempt to use the judiciary to intervene and make removal possible l

is clearly an indirect attempt to. challenge EPA's decision to I

t a

}

t i

---,,..-n

10:15AM DOJ ENVIRN DEF P16/17 10-18-93 I

s 3

3 l

~

No. wa C 33as Page 13 conduct the RI/FS.

Although Kerr-McGee does not fashion its i

1 counterclaim as a direct attack on EPA's chosen response action,

[

any " measure that is ordered as part of a remedial plan, and that l

is reasonably related to the plan's objectives so that it can fairly be considered an organic element of the plan, is itself

\\

remedial within ue meaning of section 113 (h)."

North Shore cas i

ca.

v.

Erl, 930 F.2d 1239, 1244 (7th cir. 1991).

As such, Kerr-l McGee's attack upon EPA's failure to allow it to remove tailings 4

from outside of West Chicago is an attack upon EPA's chosen removal action and is barred until after the " clean-up" has been completed.

Finally, it is of no consequence that EPA has not chosen to allow l

Kerr-McGee to conduct removal during the pendency of the RI/FS, as such action is purely at the discretion of EPA.

This court does not have proper subject matter jurisdiction over Kerr-McGee's counterciaim against EPA at this time.

EPA and Reilly are, accordingly, dismissed.

In light of this ruling it is i

i unnecessary to consider EPA's argument that Kerr-McGee failed to state a claim against it.

III.

Federal officer Emmaval statute Kerr-McCco, in respons's to both NRc and EPA, argues that the federal officer removal statuto, 18 U.S.C.

$14 4 2 (a) (1),

grants this court jurisdiction where none existed before. What Kerr-McGee fails to recognize is that removal jurisdiction is purely derivative, h, it is darived from the lower court and it cannot enlarge or contract the rights of the parties, vis-a-vis the original jurisdiction of the underlying court. Ari rena v. Menone_n, 451 U.S.

232, 242 (1981).

For the same reasons that this court

,~r.,,.

-n

,. ~,..

18-93 10:16AM DOJ ENVIRN DEF' Pl7717 i

s.

6 4

mv. ya c asas Page 14 does not have subject matter jurisdiction over Kerr-McGee's counterclaims,'the Circuit Court of DuPage County, from which this case was removed, does not have jurisdiction.

As a result of the derivative nature of the jurisdiction conferred on district courts by the federal officer removal statute, federal courts may not exercise jurisdiction over a removed action unless the state court initially had subject matter jurisdiction.

crewell v.

i M=inistrator of Veteran's Affairs, 699 F.2d 347, 350 (7th Cir.

l 1983).

The federal court derives its jurisdiction from the state l

court; as such, it is axiomatic that if the state court had no i

subject matter jurisdiction because that jurisdiction was 4

exclusively committed to administrative agencies or the court of f

i appeals, the federal court cannot acquire it upon removal.

14

't Accordingly, Kerr-McGee's removal argument has no merit.

CQMCLUSION Federal defendants' notion to diwaiss is granted and NRC, EPA, solen and meilly are dismissed.

As determined by Judge Nordberg (men.

op.,

August 19, 1992), the issue of remand will be handled separately.

4 Au.t6.1=.MORAN, JAMES B CP,ief.Tudge, U.S. District court OMf 2 1,92. OS 4 6 4

3 ) e i b L ATTACHMENT - Hanoton v. United States, Civ. No. 93-A-798-S (M.D. Alabama, decided on Sept. 21, 1993) l i f a

['/ l l' i i F.I L E D ) IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF AIABAFA SOUTHERN DIVISION SEP 211993 SILVIA I. HAMPTON, Adminis- ) tratrix of the Estate of ) inUn".AS d.C LED JAMES 0. HAMPTON JR. ) sY / ) DU/#ChfH, Plaintiff, ) ) v. ) CIVII, ACTION NO. 93-A-798-S ) UNITED STATES OF AMERICA, ) et al., ) ) Defendants. ) ORDER In accordance with the memorandum opinion entered on this 4 day, the motion to dismiss filed by the defendants, United States of America et al., is hereby GRANTED, and this case is DISMISSED with prejudice. Costs are taxed against the plaintiff. DONE this day of September, 1993. UNITED STATES DISTRICT JUDGE / l I'$ ~. 7. z 4 I',1 3 1]

~, e g _ i['"""E4 / q v FE I L; EE I) IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF AIABAMA SOUTHERN DIVISION gp 2 { g SILVIA I. HAMPTON, Adminis- ) ( tratrix of the Estate of )

• C A _R CSE JAMES O. HAMPTON JR.

W gggg Plaintiff, ) ) v. ) CIVIL ACTION NO. 93-A-798-S ) UNITED STATES OF AMEAICA, ) et al., ) ) Defendants. ) l MrMORANDUM OPINION I I. INTRODUCTION This cause is now before the court on the motion to dismiss filed by the defendants, United States of America and various federal agencies (" United States")', on August 26, 1993.8 Silvia I. Hampton, administratrix of the estate of James O. Hampton, Jr. ("the administratrix"), filed this action on June 25, 1993 agai

t the United States.

She alleges that James O. Hampton, Jr. sustained various injuries, including lung cancer, as a result of radiation exposure he received while a crew member of a United States' naval vessel patrolling the waters of Bikini Atoll during two nuclear detonations between April 1, 1946 and October 31, 1946 and that those injuries caused his wrongful death. The administratrix alleges jurisdiction under 46 U.S.C. SS 781-90, commonly known as the Public Vessels Act, as that act On August 27, 1993, the court issued an Order that \\ plaintiff show cause on or before September 10, 1993, why the United States' motion to dismiss should not be granted. The plaintiff did not respond to that Order. t l 1 i 44 .;w s }UI'MTMl

incorporates 46 U.S.C. SS 741-52, commonly known as the Suits in Admiralty Act, and 28 U.S.C. 5 1346(b). I Furthermore, the administratrix alleges that the United States was negligent in placing Mr. Hampton in an area that it knew or should have known had a high probability of death or injury to him. She also alleges that the United States was i negligent in not contacting Mr. Hampton after 1960, when it became aware of the health problems associated with ns : lear testing, in not advising him to seek immediate medical care and in not advising him of the probability of physical deterioration. The United States contends that the administratrix's action is l barred by the doctrine of res judicata, the statute of limitations under the Federal Torts claims Act ("FTCA"), lack of subject matter jurisdiction and sovereign immunity. For the reasons stated below, the court finds that United States' motion to dismiss is due to be granted. II. FACTS Mr. Hampton enlisted in the United States Navy in 1943. Between April 20, 1946 and October 12, 1946, he was stationed Eniwetok Atoll, 160 miles west of Bikini Atoll. During that same 1 time the Navy conducted " Operation Crossroads," a test involving the detonation of two nuclear devices. In January 1947, Mr. Hampton was discharged from the Navy. On June 3, 1983, he instituted an action against the same defendants who are in the instant action, alleging the same injuries as administratrix does in the instant action. On 2

December 13, 1983, the United States District Court for the Western District of Arkansas dismissed Mr. Hampton's suit pursuant to Fed. R. Civ. P. 12 (b) (1). The court held that " stare decisis mandates that plaintiff's claim is barred by Feres (v. United States, 340 U.S. 135 (1950)) and that this court, therefore lacks jurisdiction of the subject matter of the instant action." Harbton v. United States, 575 F.Supp. 1180, 1185 (W.D. Ark. 1983). I Subsequently, Mr. Hampton died on June 1, 1987. Nearly six years later, administratrix filed this action. III. DISCUSSION "Under the doctrine of res judicata, a judgment in a prior suit bars a second suit on the merits involving the same parties or their privies based on the same cause of action." Parklane Hosierv Co. v. Shore, 439 U.S. 322, 326 n.5 (1979). In order for the doctrine of res judicata to bar a subsequent suit, four elements must be present: (1) there must be a final judgment on the merits; (2) the decision must be rendered by a court of competent jurisdiction; (3) the parties, or those in privy with them, must be involved in both cases; and (4) the same cause of action must be involved in both cases. Jaffree v. Wallace, 837 F.2d 1461 (11th Cir. 1988); geg also Federated Dent. Stores. Inc.

v. Hoitie, 452 U.S. 394, 398 (1981).

In the instant case, the court finds that all four elements are present. The earlier case was filed in the United States District Court for the Western District of Arkansas, a court of 3

competent jurisdiction. It is clear from the record, that in the l previous case, Chief Judge Waters entered a final judgment on the merits and that there was no appeal. Egg Hamoton, 575 F.Supp. at 1185. Furthermore, the parties and the cause of action in the previous case and the instant case are the same. Moreover, the present suit is barred by the statute of limitations under the FTCA. The statute of limitations for the 1 FTCA provides that any tort claim,against the United States must ~ be presented in writing to the appropriate federal agency within two years after such claim accrues or the action must be begun within six months after the date of mailing of the final denial of the claim by the agency to which it was presented. 42 U.S.C 5 2401(b). The determination of the date on which a claim accrued is based on federal law. Maahs v. United States, 840 F.2d 863, 866 (11th Cir. 1988). In the instant case the wrongful death cause of action, which chronologically is the latest of the administratrix's claims, accrued on June 1, 1987, the date of Mr. Hampton's death. Egg United States v. Kubrick, 444 U.S. 111, 120-22 (1979); 333 also Channess v. United States, 835 F.2d 1350, 1352 (11th Cir. 1988); Kinaton v. United States, 396 F.2d 9, 11-12 (6th Cir.), cert. denied, 393 U.S. 960 (1968). This action was not filed until June 25, 1993. Therefore, the court finds that it is time barred. Accordingly, the court finds that the motion to dismiss filed by the United States is due to be granted. i 4 i

i CONCLUSION For the foregoing reasons, the court finds that the motion to dismiss filed by the United States is due to be granted. A separate order will be issued in accordance with this memorandum I opinion. DONE this M day of September, 1993. UNITED 3TATES DISTRICT JUDGE / I i ) 4 l 5

ATTACHMENT - Cameo Diaonostic Centre. Inc. v. Brown, No. 9323-SC-5430 (Small claims Court, Massachusetts, filed on October 12, 1993) l

i 10/19/93 11:59 (BRC REGION 1 - OFFICE REG. ADf't.

• 83015043200 NO.161 DB2J.

-iTATEMENT OF SMALL CLAIM F-e o m ho-Trial Court cf M=sachusetts du 1 AND NOTICE OF TRIAL

• y*

W sc m o Sm-Il Cl:Ims Session Wi O 80STON MUNICIPAL g MSTRICT COURT O HOU$ LNG COURT b COURT iPRfie"e m n DMelon DMolon PDsNTsFF*S N AME.gDDREss. ZIP CODE AND PModMcnrer.Txc N. PLAINTIFF 3 ArroRNEYhteny) h ro McHos nr IGC t4aW 9f<dt A ' 4,% $5ft,t4A O1for' PHONE o PMoNENo CEFENDANT1 NiME.MoREss.2tP CooE AND PMONE ADoTsoNAL DEF ENDANT bl any) W a,gyh 2 ff myy Pant Agg,,es; 4'7c AllA dole %d d PHONENo' M4.O F $/ exoNENo PLAINTIFF'S CblM.The defondant obes 5 /$ d Mus 8 /[ M court costs forthe following reasons: Give the date of the event that is the basis of"yotIfclaim. __% d. M.ol k ~ id,, A, a.7 y lu/m FA, O d M en c [3 U 0 A n f oF hNT,FF (L be f mod _ i n h ~ ffjff g ssous MED11 TION: Mediation of thIs claim ihay ta'atditable prior to trftlif'both parties agree to'd: scum,he metterwith a m4diatift. _ \\. u M ~ 5 who will assist the parties in trying to resolve the dispute on rnutuelly agreed to terms. The plbfhtiff must notify the court if .Aat he or she desires mediation; the defendant may consent to rned ation on the tual date. O The plaintrff is willing to attemDt to settle this claim through court mediation. MILITA AFFIDAVIT: The plaintiff states under the pains and penalties of perjury that the: bove defendant (s) is (are) not serving in U above defendant (s)is (are) serving in the military and at present live (s) or work (s) mil f g. e gf y 2r-at the above address. Si@A'ruRE3F PLA#kT8FF DATE. g .J NOTICE TO DEFENDANT:

• Aut ANo ADDRESS oF GoWRT You are being sued in Small Claims Court by the above 4

[ named plaintiff. You are directed to appear for trial of this SPRINGFIELD DISTRICT COURT BoTNTNE o f g claim on the date and time noted to the right. SMALL CLAIMS DIVISI0lt A$DSE 50 State Street DE'QD^"7 [ W If you wish to settle this claim before the trial date, you .cm a.. n.14 wA n i i n,_ si. 3, A,,Ean At e y h should contact the plaintiff or the plaintiff's attomey. DATE AND Tsuf oF tRiAt THgsegMT g g; N SEE ADDITIONAL INSTRUCTIONS ON THE BACK OF THIS FORM DATE ANo O E E 't 19" 'SL._ AT 9 nn- - WE Feas'f 4WsT6CE CLER% MAG 3 STRATE oR DEsaGNEE DAId Tsk[ II O cP_nRCP D D rr* T A ttre RTr*naan unentcerv Doom No 4 INSTRUCTIONS FOR FILING A SMALL CLAIM - You must complete Parts 14 of this form. See instructions on reverse. DC 30 9 ItoG ATENCloN. EsTE Es UN Avtso ohCIAL DE LA CoRTE. si UsTED No SAEE LEER INGLIs. osTENGA UNA TRADUCC:6H.

to.165 D32 I INSTFWCTIONS TO THE PLAINTIFF AND THE DEFENDANT

1. WMAT ($ 7tts DOCUMEXT7 oues the oefencant m small claims court nor the amount and esancris stated e plaintift nanoe on the trent of thrs term has

2. WHAT IS SMALL CLAIMS COURT 7 ear nor inst a one com u

smaner cases. moung si saser ano less orpenswo for the pubic to uso d.o coun.The smau claim u ci a

3. Now LS THE DEFENDANT NOTIFIED OF THIS CLAIM 1 ourt or she hounmo Coun ti e oomgnes to re 6ve the coun en son the plainsdr # the Pm Otter.e a unable to noury 0;aer e") the octonennt

d. ARE ATTORNEft NEElst0 IN SMALL CLAIMS COURT 7 anc one my cerdea mait. at the planitift 6nqueres.

v No. but you may hsre one d you ws's. S. WHAT ARE *CCSTS*"? p;ainuti may someumes recover sea.am omer msis of brmgtng me casim.If the piamuff prevalla, or d osts"the court Ithng too and portage By court otest Wie

5. t$ THE DEFENDANT REcuiRED TO FILE AN ANE%TR7 4

The estancam mer sene a syned 1erter to the court, seying ce arty ena simpty wny the p<satal sh of me cmm that are cemec. However the setencant is not reopred to the an answer. The cerenc s paswer. or in a seperste letter sent so she court. the de6enosat may set sorth an wnung any claim age nst th that they De so easien. Such cieens are not commaeory. The p6eWm need ret fue a wrotonc e enewer, it one e need. en the

7. WHAT sr Trai DEFENDANT ADMITS HE OWES ALL THE MONET7 answer to the catenaamt s estim.c oouied anal case. or at the suope orders he or one s%ould commet the piamte and a+ range to make peyment. If payment is not made betore the trial cal S. WHAT IF THE DEFENDANT ADWITS HE OWES THE MONEY BUT NEEDS TIME TO PAYY

e. boa the p!amhsf one oefencant m st appear m soort u

He or the m st appear an court on the snel date and pve tus or her raasons lor requesong trns to pay. u S. WMAT IF THE DEFEWOANT BELIEVES HE CWES NOTHING. OR ONLe SOfdE OF TH He or she m st appear an coun on the tnal Oste. M6 or she Will be af4 L 04stion how the pl u

90. WMAT IP THE DEFENDANT SEufYES Test PLAINTtFF OWE 5 Staw ed0ssRv"P

&#nDff arrived of the amouni chestnod. The celencant s%ound indica'e in his or her answer or teu the court. that the p6sintitt owes han or her mone agamst the plaintt'(estaed a "couNerciaim") may be trested as one esse and aneo en the este me enginal to send the plavibn a copy of a wntfen countercism d one a Nea e oefenaant is urged. but not roguerac,

11. WHEN AND WHEflE DO THE PLAlWTIFF AND THE DEFENDANT MAYE TO GO TO COU ano the court locateort to whech both sedes must report are shown on the front of this sor it. WHAT IF i CANNOT COME TO COURT ON THE TRIAL DATg?

an court en the date me case as scheduled Ior treat Tne sais, eme You shou e call or write the sorson on the opposing sice and asa Nm or her to agree to post s person on the opposing seos. you must wnto the Clerk Marstrate of the court to as pone (" continue 7 r4 see Conthuances siould be ordy for a 9000 oppommg esos coes not agree or 48 you are unable so reacn the sice makes a reasonsono request tor a conernuance. 41 may save you some inconvenience of you agree to the

13. WMAT #F f 00 880T COME TO COURT ON THE TRLab DAY?

ve you a conunuance. Do noi wait untti the last nunute. If the other request. tr the pamiirt ooes not appear for snel, aae the detendent coe, appeer the cane wel b pay the amount claimec. The suope may ask the osamtif( to present meme enneence of 14, eIOW $HOULO l PREPARE FOR TRIALT eem, even d the devemosnt se nos presentt emar a detsuti poogm presemsi,on of your oaory On the snai cow, you m st onng e stn you any witnesses c I, a wm help you organ se youriboughts and make a cle u r you noen a wrtness to come tc court but the witnuss wpi not come. esk the CiertWag< strate to is , e. ets, papers. photogranns or assiers that wde help you prove ruur ca any *.atter not within common empenence. The laws govemeng sman c: arms are the same as those b sue a summons to the person You may nectLan expen w.anese en p et olaermM must prove tnat the ciasm as one which sne 6ew recogmses and that the oe'encam is li

15. WHAT WILL MAPpEN ON THE DAY OF THE TRIAL 7

. r maior tawsun escent that a,mpLt.erpoocoeures are used. The i enter a onceaon for the setentant. than the eetencent wdl tell his or her nice. Each wt have an opportunny to ask eBe sur r uestens of the olhor seas and the other sace's omne the pla Niff to prove the Fairasty of he or her c6aven.

14. WHAT WILL TME JUDOE D07 The judge wdl mate a cocie<en. seouco of the cocasson (caped a "pogment")mit be g von o

17. CAN i AP9EAL TMS JUDCIMENTY r mont to each sace.

asnes so waved. et she piamtm loess. he or she connel appeal. Smce he or the those tn th a a My o8 o brmg n's or her case en empli cinema cguet.sai pe sona, but he or she erwet poo

13. WHAT $ MOULD THE PLA!NTIFF 00 IF TME DEFEMDANT FAtLS TO PAY GMENT?

a payment orcer the e"sagisrate ** gwe the piamtiff a nobce croenne the detencaris to appear m co p 5 and De *'G..epumenmont The p6egf! must 3rrange ID have an on ttw Ser e thi$ nouce on the celenC& ens antorm the pisinnff how to bnng the claim before the susps to have e payment orper mad oun to show ca>ee wny he or she shouto not be heio ao con e v ourt has not m50s a p0ymertl oroer. the C6eek.84agistrate e. I i

f f t t L s ATTACHMENT - MLC Grouo. Inc.

v. United States, No. 93-547-C (Court of Federal Clains, filed on Sept.

1, 1993) i r

IN THE UNITED STATES COURT OF FEDERAL CIAIMS MLC GROUP, INC., Plaintiff No. 9 3 - 5 4 7 ~0 v. THE UNITED STATES OF AMERICA, Defendant. fu s SEP 1 333 Complaint Plaintiff MLC Group, Inc., for its complaint herein, alleges by counsel as follows:

1. This court has jurisdiction over this action under 28 U.S.C. section 1491, in that it is an action for damages against the United States of America arising from an express contract. This action is brought under the Contract Disputes Act of 1978,41 U.S.C. section 605 et. seq. ("CDA").

i

2. Plaintiff MLC Group,Inc. ("MLC") is a Virginia corporation with its principal place of business in Virginia. MLC was formerly known as Municipal Izasing Corporation.

3. This case arises out of a contract between MLC and the United States Nuclear Regulatory Commission ("the Government") for procurement of certain computer storage equipment.

i 1

4. On or about October 21,1991 the government issued a solicitation for bids to procure an IBM 3380-BK4 Direct Access Storage Drive ("DASD"), control unit and magnetic tape units or equivalents. The DASD was required to fit within a six foot square area.

l S. On November 20, 1991 the government amended the solicitation to require f delivery of the equiprrent within 30 calendar days of the date of contract.

6. On December 27,1991 the government issued a contract with MLC, the low i

bidder, for procurement of an IBM 3380-BK4 DASD for $39,573, plus a Storagetek 4480 l t t M20 control unit and two Storagetek 4480 M22 magnetic tape units, for a total of i $83,089("the contract"). The contract term was December 27,1991 through February 7, 1992. i I,

7. On March 6,1992 the government modified the contract to extend the contract term from February 7,1992 through April 22,1992.

f Y l i I t

8. On April 30,1992 the government issued modification 2 to the contract to change j

the contract term to December 27,1991 through August 3,1992 and to change the delivery I date on the control and tape units to May 13,1992 and on the DASD to July 22,1992. l i h t 2 / ( I 1 f ___-___---.-_--,._,.,..._..,,.-,.,___.,.,_,,,...._,,,.-,--,,.,,_..,,,,,,-,,n-,,,..,,,-,,,,,...,,-

J

9. On June 11,1992 the government issued modification 3 to the ecntract, correcting the total price for the equipment to $85,089 and changing the delivery date for the control and tape units to June 19,1992.

10. In modification 4, issued on July 22,1992, the government changed the contract term to December 27,1991 through October 14,1992 and changed the delivery date for the DASD to October 1,1992. Installation of all the equipment was to be performed by 4

October 14,1992.

11. On September 24,1992 the government terminated the contract for convenience effective September 15,1992. On information and belief, the basis for the termination was space limitations. The government decided that it could get other equipment which would more easily fit in the limited space available and determined to issue a new solicitation for its equipment requirements.

12. The government was aware of both its space constraints and the size of the equipment which MIL would deliver prior to the time it issued its solicitation and awarded MIL the contract, and these space limitations did not change from the time the government issued the solicitation to the time of the termination. The termination for convenience, therefore, was not based on unanticipated changed conditions, nor was the government deprived of the benefit of the bargain.

3

E

13. The aforementioned action of the government was in breach of contract in that the circumstances justifying termination for convenience did not exist.

14. The measure for damages for breach of contract is the difference between the contract rate at the time of breach and the cost of performance saved by the contractor.

In this case, the contract rate for the DASD was $39,573. MLC was to obtain the equipment and deliver it by the amended delivery due date of October 1,1992. At that time, the acquisition cost for MLC for such an item was $21,000. Accordingly, the measure for damages for the government's breach of contract is $18,573.00 ($39,573-$21,000).

15. On October 9,1992 MLC wrote to the government to assert that it was capable of meeting the government's equipment needs more efficiently than a new solicitation and that a termination by the government would constitute a breach of contract.

The contracting officer responded by letter on October 28,1992 and asserted the government's right to terminate the contract.

16. On or about February 8,1993, MLC filed a claim with the contracting officer pursuant to CDA seeking damages of $18,573. More than 60 days have elapsed since the claim was filed, and the contracting officer has issued no decision. There is no reason to await a contracting officer's decision in view of the position taken by the contracting officer in her letter of October 28 1992 4

i

Wherefore, plaintiff seeks judgment as follows: A. Damages in the amount of $18,573.00, together with interest from February 8, 1993 in accordance with CDA. B. The reasonable costs and attorney's fees of plaintiff and such other relief as the court deems to be just and proper. l Respectfully submitted, F r/MV/ ~ M'E. Giillner, Esq. / 10 E 5t. S.E. Washington, D.C. 20003 (202) 547-1136 Attorney for Plaintiff MIL Group, Inc. e a 5 --}}