ML20126G109
| ML20126G109 | |
| Person / Time | |
|---|---|
| Issue date: | 12/28/1992 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-92-427, NUDOCS 9301040067 | |
| Download: ML20126G109 (34) | |
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XIM(IdlCATORY ISSUE sECY-92-427 (Informat. ion)
December 28. 199.,*-
MEMORANDUM FOR:
The Commissioners FROM:
John F, Cordes Solicitor
SUBJECT:
LITIGATION REPORT 1992 - 21 Native Americans for a Clean Environment v.
HRC, No. 92-1167 (D.C. Cir., Dec. 18, 1992)
This lawsuit raises a NEPA challenge to an NRC arder permitting restart of Sequoyah Fuels Corporation's Gore, Oklahoma, fuel conversion facility.
The case was fully briefed last summer, and was orally argued in November.
Shortly after oral argument, however, SFC decided essentially to shut down its Gore facility.
Petitioners then filed a motion to dismiss their own petition for review on the ground that their NEPA grievance was essentially moot.
The court of appeals (Wald, Silberman & D. Ginsburg, JJ) granted the motion, bringing this case to an end.
Attachment:
D.C.
Circuit Order
Contact:
Daryl M.
Shapiro 504-1631 SECY NOTE: TO BE MADE PUBLICLY AVAILABLE IN 10 WORKING DAYS FROM Tile DATE OF Tills PAPER.
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'9 The Commissioners 2
Atlas Corn. v. United States of America &
UEC, No. 92-1561 (D.C. Cir., filed Oct. 29, 1992)
This petition for review attacks an NRC decision refusing to give petitioner relief from a $100,000 annual fee for FY 1991.
Petitioner owns a defunct uranium milling operation.
In FY 1991, however, petitioner held a license that permitted operation of the milling facility.
While petitioner argues that the facility was defunct at that time, and was undergoing decommissioning, petitioner did not seek a poscession-only license until FY 1992.
Once petitioner obtained a POL, the NRC assessed no further annual charges but has insisted on payment of the $100,000 fee for FY 1991.
Petitioner has challenged the NRC decision in court.
There have been preliminary settlement talks, and petitioner is seeking mediation under a D.C.
Circuit " alternate dispute resolution" program.
We will work with the controller's Office on this case.
Attachment:
Petition for Review
Contact:
L. Michael Rafky 504-1974 Wamoler v. NRC, No. 91-2190 (6th Cir.,
Nov.
2, 1992)
This is a Privacy Act suit against the NRC for an allegedly improper disclosurelof plaintiff's address and other information during the Seabrook administrative proceeding.
Egg Litigation Report 1991-20, SECY-91-337.
The district court dismissed plaintiff's suit on the grounds that the disclosed information was not in an agency
" system of records" (as required for. Privacy Act liability) and that the NRC had acted
" reasonably."
Id.
On appeal'the Sixth Circuit (Keith, Kennedy & Jones, JJ) has affirmed, "for the reasons set forth" by the district judge.
The court of appeals issued
- _ ~ _ = -
'o The Commissioners 3
a one-page pgr curiam order.
We do not yet know whether plaintiff will seek Supreme Court review.
Attachment:
6th Circuit Order
Contact:
Marjorie Nordlinger 504-1616 Homestake Minino Co. v. NRC, No. 92-20$7 (D. Colo., filed October 15, 1992)
Plaintiff in this lawsuit seeks monetary relief against the NRC under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
Plaintiff owns a uranittm milling facility in New Mexico.
Plaintiff says that the old AEC's efforts "to develop a domestic uranium procurement program" led to contamination at the site.
Plaintiff has sued the NRC as a successor to the AEC.
Because plaintiff hopes to obtain financial support for its clean-up activities under the energy legislation enacted this past fall, plaintiff has indicated to us that it may not pursue this suit (indeed, it has not yet been formally served).
It is highly doubtful, in any event, that plaintiff has any valid claim against the NRC.
Attachment:
Complaint
Contact:
John F. Cordes 504-1600
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q F. Cordes icitor DISTRIBUTION:
The Cormissioners OGC CAA IG PA OPP REGIONS EDO ASLBP SECY
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Attachment -
Native Americans for a Clean Environment v. NRC, No. 92-1167 (D.C. Cir., Dec. 18, 1992)
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Knifeb $faics Gmtri of Appenis IOR THI DitTRICf Of CotVMBIA CIRCUlf September Term,19 N o.
92-1167 92 ARGUED:
11/19/92 11ative Americans for a Clean Environment and Cherokee Nation, visiteu states bout t Of MPPf al5 Petitioners, For the District of Cotumbia Circuit v.
HLED ote ic m2 U.S. Nuclear Regulatory Commission and United states of America, RON GARVIN Respondents.
CLERK BEFORE:
Wald, Silbernan and D.H. Ginsburg, Circuit Judges.
ORD2R Upon consideration of petitioners' notion to dismiss petition for review, it is ORDERED that the motion is granted and this case is hereby dismissed.
The Clerk is directed to transmit a certified copy of this order to respondents in lieu of a formal mandate.
Per Curing FOR THE COURT RON GARVIN, CLERK tLLL YQ By:
Cheri Carter Deputy Clerk J W: (C;
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Attachment -
Atlas Corn. v. United States of America & NRC, No. 92-1561 (D.C. Cir., filed Oct. 29, 1992)
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1 IN THE UNITED STATES COURT OF APTEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ATLAS CORPORATION,
)
Petitioner,
)
v.
No.
1~ l5 bl UNITED STATES OF AMERICA
)
)
and
)
)
UNITED STATES NUCLEAR
)
REGULATORY COMMISSION,
)
Respondents.
)
PETITION FOR REVIEW Pursuant to section 189 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2239, and the Administrative Orders Review Act, 28 U.S.C. 2341 et seq., Atlas Corporation hereby petitions the Court for review of the attached final order of the United States Nuclear Regulatory Commission, which was issued on Septem-ber 24, 1992, that seeks to assess on Petitioner an annual fee pursuant to 10 CFR Part 171.
Respectfully submitted, b
k.
Jay f/ Silberg SHAWWITFMAN POTTS & -GROWBRIDGE 2300 N Street, N.W.
Washington, D.C.
(202) 663-8063 Attorney for Petitioner Dated:
October 29, 1992
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[p asan#'o UNITED STATES
'g NUCLEAR REGULATORY COMMISSION
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/
SEP 2 4 1992 Shaw, Pittnian, Potts & Trowbridge ATTN:
F. Edwin Froelich 2300 N. Street, N.W.
Washington, D.C.
20037 Gentlemen:
This responds to your July 28, 1992, letter requesting reconsideration, on behalf of Atlas Corporation (Atlas), of my May 28, 1992, decision with respect to the FY 1991 annual fee of $100,100 assessed to Atlas for License SUA-917.
We have evaluated both the information presented in your letter and the information presented at the meeting held September 9, 1992, with you, a representative from Atlas and my staff.
Based on that evaluation, I reaffirm the decision in ny May 28, 1992, letter that Atlas owes the FY 1991 annual fee because License SUA-917 currently authorizes milling operations.
With respect to the Atlas mill falling in Category 14 of 6171.16, we disagree.
Category 14 recognizes those licensees who have notified the NRC that they do not intend to continue to operate, and have had their licenses amended by the NRC to remove all authority to conduct recovery operations or process source mater'ial such that the license esly authorizes decommissioning, decrwination, reclamation, or site restoration activities. This is m'
n t with NRC policy with respect to reactors in that the NRC has
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' that if a license has only the authority to possess nuclear material ace '
NRC has received a request from the licensee to amend its license to perm.a.ntly withdraw its authority to operate the reactor, the licensee is not subject to the annual fees (56 FR 31485).
The NRC believes it has provided ample opportunity to licensees such as Atlas to file requests either for termination of the license or to have the license amended to remove the operating conditions (possession only/ storage only) to avoid payment of the FY 1991 annual fee. The FY 1991 final fee regulation provided a 30-day window of opportunity (from July 10, 1991, through August 8, 1991) to file such requests (56 FR 31475, 31485).
On November 21, 1991, Atlas filed an application with the NRC to change the license classification of the Moab Mill. On September 16, 1992, Atlas supplemented the November 21, 1991, application to request amendment of specific license conditions to preclude operation of the Moab Mill. The NRC considers the November 21, 1991, application, as supplemented, to be a valid request for a possession only/ storage only license. The FY 1992 rule exempts from the FY 1992 annual
i fees those licensees who either filed for termination of their licenses, certificates or approvals or filed for possession only/ storage only licenses prior to January 1, 1992 (57 FR 32696, 32700).
Since Atlas has filed such a request prior to January 1,1992, Atlas is not subject to the FY 1992 annual fees for License SUA-917 that were published in the Federal Reaister on July 23, 1992, which became effective August 24, 1992. Accordingly, Invoice Nos. AM00026-92, AM00067-92, AH00111-92, and AMC7326-92 will be canceled.
As indicated in my letter dated May 28, 1992, to Atlas, Invoice AM08047-91 in the amount of $100,100 for FY 1991 was due and payable within 30 days from the May 28, 1992, letter. The invoice was not paid.
Therefore in accordance with 10 CFR Part 15, interest, penalty and administrative charges have been assessed from May 28, 1992, the date of my initial decision. The balance due through September 30, 1992, is $104,988.40 ($100,100 principal, $2,764.44 interest, $2,073.96 penalty charges, and $50 administrative charges). Please be aware that non-payment of debts due the NRC may result in suspension or revocation of a license or approval issued to the licensee and referral of the delinquent debt to a collection agency in accordance with 10 CFR 15 of the Comission's debt collection regulations, copy enclosed.
If you have further questions concerning this matter contact Glenda C. Jackson of this office (301-492-8740).
Sincerely, Ronald M. Scrogguns Deputy Chief Financial Officer / Controller
Enclosure:
10 CFR 15 cc: Mr. Richard Blubaugh Atlas Corporation 370 Seventeenth Street, Suite 3150 Denver, CO 80202 l
4 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ATLAS CORPORATION,
)
Petitioner,
)
)
v.
)
No.
)
UNITED STATES OF AMERICA
)
)
and
)
)
UNITED STATES NUCLEAR
)
REGULATORY COMMISSION,
)
Respondents.
)
CERTIFICATE OF SERVICE I hereby certify that I have this 29th day of October, 1992, served upon the following a copy of the Petition for Review and Disclosure Statement in the above-captioned proceeding by first class mail, postage prepaid:
Hon. William P.
Barr Attorney General of the United States Department of Justice 10th Street and Constitution Avenue, N.W.
Washington, D.C.
20530 John F. Cordes, Jr.
Solicitor United States Nuclear Regulatory Commission Washington, D.C.
20555 N
Jay
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' PI;1'TMAN POTTS & TF.OWBRIDGE 2300 N Street, N.W.
Washington,_D.C.
(202) 663-8063 Attorney for Petitioner Dated: October 29, 1992 0114:376jes,92
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Attachment -
Wamoler v. NRC, No. 91-2190 (6th Cir., Nov.
2, 1992)
EILED NOT FOR PUBLICATION NOV 2 E 91 2190 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUlT JOSEPH D.WAMPLER.
)
)
Plaintiff Appellant,
)
)
On Appeal from the v.
)
United States District
)
Court for the Eastern UNITED STATES NUCLEAR
)
District of Michigan.
REGULATORY COMMISS!ON,
) flOT P.ECO!A!.*!T!:: FOR FULt. TEXT PUBL10AT;ON
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Defendant. Appellee.
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BEFORE:
KEITH, KENNEDY and JONES, Circuit Judges.
PER CURIAM: Appellant, Joseph D. Wampler, appeals from the United States District Coun's grant of summary judgment for the Nuclear Regulatory Commission, dismissing appellant's cause of action under the Privacy Act,5 U.S.C. 5 552a. The Privacy Act prohibits agencies from disclosing documents or information that are records contained within a system of records. The district court held that the Nuclear Regulatory Commission did not violate the Privacy Act by disclosing the terms of Wampler's settlement agreement with his former employer because this information was not included in the agency's system of records.
Having carefully considered the record and the issues presented in the briefs and at oral argument, we find no error warranting reversal. Therefore, we AFFIRM the decision of the Honorable Robert E. DeMascio, United States District Judge for the Eastern District of Michigan, for the reasons set forth in his September 23, 1991, opinion and order.
v 9
i Attachment -
Homestake Minina Co. v. NRC, No. 92-2057 (D. Colo., filed October 15, 1992)
4 IN THE UNITED STATES DISTRICT COURT
- .', ', 2 FOR THE DISTRICT OF COLORADO
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HOMESTAKE MINING COMPANY
)
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OF CALIFORNIA,
)
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)
Plaintiff,
)
4, 7
05Z v.
UNITED STATES NUCLEAR
)
CIVIL ACTION NO.
REGULATORY COMMISSION,
)
)
and
)
)
THE UNITED STATES OF AMERICA,
)
)
Defendants.
)
)
COMPLAINT Plaintiff Homestake Mining Company of California
("Homestake"), for its Complaint against defendants United States Nuclear Regulatory Commission ("NRC") and the United States of America (collectively referred to as " defendants"), alleges as follows:
JURISDICTION AND VENUE 1.
Homestake brings this action against the defendants pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (" CERCLA"), 42 U.S.C.
SS 9601-9675, and the Declaratory Judgment Act, 28 U.S.C. SS 2201-2202.
2.
Jurisdiction in this Court is founded upon section ll3(b) of CERCLA, 42 U.S.C. S 9613(b).
3.
Venue is proper in this District under section 113(b) of CERCLA, 42 U.S.C. S 9613(b) and under 28 U.S.C. S 1391(e).
THE FACILITY AND THE PARTIES 4.
Plaintiff Homestake is a corporation duly organized and existing under the laws of the State of California with its principal place of business at 650 California Street, San Francisco, California 94108.
5.
Since approximately 1956, Homestake, directly or through its predecessors in interests or through partnerships participated in by those predecessors, has owned a uranium milling facility (the " Facility") located approximately five miles north of the village of Milan, in Cibola County, New Mexico.
The Facility has at various times consisted of one or two mills, as well as two uranium tailings disposal piles.
The Facility commenced uranium milling operations in 1958 and ceased milling operations in 1990.
6.
Between 1947 and 1970, inclusive, the defendant United States of America (the " United States Government") engaged-in a comprehensive program designed to develop a domestic uranium procurement program to provide the federal government with a secure source of nuclear fuel for military and energy applications.
The activities of the United States Government were carried out through its agency, the Atomic Energy Commission
("AEC"), primarily out of the AEC's Grand Junction Operations l
Office located in Grand Junction, Colorado, which was the headquarters of the-AEC's uranium procurement program.
i 7.
The defendant NRC is an agency of the United States l
l Government and is a successor agency to the AEC by virtue of the i
l l
4
--3 Energy Reorganization Act of 1974, 42 U.S.C. S 5841(f).
Defendant NRC presently maintains offices in the Denver, Colorado and-Plattville, Colorado areas.
8.
As part of the United States Government's uranium procurement program, between 1956 and 1970 inclusive, the AEC' participated as an " operator" of the Facility within the meaning-of sections 101(20)(A) and 107(a)(2) of CERCLA, 42 U.S.C.
SS 9601(20)(A), 9607(a)(2).
During this period, when the u
hazardous substances were disposed of, the AEC exercised substantial control over and thereby participated in the operation of the Facility through AEC's uranium milling contracts with Homestake, AEC's extensive efforts to create, control, and maintain a uranium mining and milling industry, and AEC's comprehensive statutory and regulatory authority over uranium ore, uranium concentrate, uranium tailings byproducts, and uranium milling facilities.
The United States Government's control over the Facility extended to creating the regulatory, licensing, and financial environment without which the mills would never have existed; to overseeing, approving, and funding the mills' construction; to controlling the prices and sources of raw material; to purchasing virtually the entire output of uranium concentrate at prices set by the AEC; to advising and directing the mill owners in the operation of the mills and tailings disposal process; and to requiring extensive reports on construction progress and milling activities.
9.
Between 1956 and 1970, inclusive, the defendant United States Government through the AEC also " arranged" for the disposal
. of hazardous substances at the Facility within the meaning of CERCLA 5 107(a)(3), 42 U.S.C.
S 9607(a)(3), by contracting with Homestake for the processing of ore owned or controlled by the United States Government and by thereafter purchasing virtually all of the resulting uranium concentrate pursuant to AEC contracts, all with full knowledge that the creation and disposal of large amounts of waste material was inherent in the milling process.
The United States Government through the AEC further arranged for the disposal of hazardous substances as a necessary part of its arranging for the construction and operation of the Homestake mill, approving the design of the milling process, arranging for the provision of uranium ore for processing by Homestake, inspecting and providing advice regarding the milling and waste disposal operations, and otherwise exercising authority over the disposal of uranium tailings inherent in the milling process.
THE GOVERNMENT'S URANIUM PROCUREMENT PROGRAM 10.
In 1947, the United States was dependent upon the Belgian Congo for more than 90 percent of its uranium.
Production in the United States at that time was insignificant.
By 1948, the nation had an urgent military requirement for uranium and was beginning to develop energy applications as well.
11.
In 1948, the AEC announced the initiation of its domestic uranium procurement program.
The AEC's procurement program was designed to create and develop a domestic mining and milling industry to provide uranium concentrate or "yellowcake" for the United States Government's nuclear weapons programs.
The
_~
- 5-federal uranium procurement program spanned a period from 1947 to 1970.
During most of this period the Federal Government was virtually-the only buyer of uranium concentrate produced in the United States.
12.
The AEC set out to achieve this objective by first creating a domestic uranium exploration and mining industry.
To do so, the AEC offered bonuses for the discovery and mining of uranium ore, performed geologic surveys for mining companies, furnished free testing and assaying services, guaranteed a market for uranium ore by offering to purchase all ore located and mined, and guaranteed an attractive, fixed price for uranium ores that ensured profits to mining companies.
Under the Atomic Energy Act of 1946 and its 1954 revision, AEC activities were " subject at all times to the paramount objective of making the maximum contribution to the common defense and security."
Atomic Energy Act of 1946, Pub. L. No.79-585, 60 Stat. 755-75, 42 U.S.C.
S 1801(a); Atomic Energy Act of 1954, Pub.
L.
No.83-103, 68 Stat.
919, 42 U.S.C. S 2011(a).
13.
Through a series of Domestic Uranium Program Circulars, the AEC established minimum price guarantees, bonus payment awards, and haulage allowances under its procurement program.
To complement its procurement program, the AEC, aided by the U.S.
Geological Survey, instituted in 1948 a wide-ranging effort to undertake exploration, geologic studies, drilling and examination of samples,-and airborne reconnaissance.
The results of these ef forts were regularly provided to private mining. companies for their use.
6-14.
To process uranium ore into usable uranium concentrate, milling facilities are necessary.
Private, commercial facilities for milling uranium ore, however, were virtually nonexistent in the late 1940's.
The AEC owned at least one milling facility itself during this period, but more mills were needed to assure adequate national milling capacity.
Rather than-build more government-owned mills, the AEC embarked on a program by which it would create and control the successful development of privato uranium processing facilities that could process the ore being purchased and developed by the AEC and provide the United States Government with an adequate supply of processed uranium.
Those
-mills were established and controlled by the AEC in part through contracts entered into pursuant to the Atomic Energy Act.
15.
Prior to executing a contract with a milling company, the AEC required submission of a detailed proposal showing that the company could meet AEC requirements of adequate ora supply, technical capability, and_ financial responsibility.
After these requirements were met, the contracts that were initially entered into were for a period c+ five years or more so the milling company would have an opportunity to amortize plant costs during the contract term.
16.
The incentives utilized by the AEC to set up private mills were designed to allow companies to recoup _the cost of constructing and operating a mill facility during the life of the AEC contracts and make a reasonable return on investments.
Absent the major incentive of allowing the private companies to recover the cost of constructing and operating the mill facilities during-
the life of the contract, private companies such as Homestake would-not have built or operated the mills when the United _ States Government needed milling capacity for its nuclear programs.
The milling contracts provided substantial benefits to the United States Government by satisfying its urgent need for uranium concentrate.
17.
In return for the incentives provided mill owners, the United States Government through the AEC equired that the mill owners, including Homestake, give AEC significant control over the operation of those mills.
For instance, the AEC had the authority, at various times, to participate in and approve the design and siting of the mills and set deadlines for the construction of the mills.
The AEC also set the price of all ore purchased by the mill owners and determined which mines the mill owner could obtain ore from.
The AEC further required the mill owner to purchase ore offered by independent producers at prices set by the AEC.
18.
As part of the AEC's control over the milling operations, the AEC set the quantity of processed uranium produced by the mills and required the mill owners, including Homestake, to sell, at various times, either the entire output or virtually the entire output of their mills to the AEC.
The AEC set the specifications of the processed' uranium, determined the requirements for the packaging of the uranium, and-determined where delivery of the processed uranium should take place, including in part at its Grand Junction, Colorado facility.
. 19.
The AIC also had access to and obtained extensive information about the private milling operations, including the Homestake mills.
As part of its contracts with mill owners,_the AEC required monthly reports on construction work and specifications of the processed uranium and retained the right~to audit mill owners' records, including those of Homestake, relating to receipt of ores, assays, payments to producers, and haulage allowances.
The AEC also had the right to examine at any time all records of the mill owners, again including Homestake, pertaining to any transactions related to the AEC contracts.
20.
Pursuant to the Atomic Energy Act of 1954 ("AEA"),
ch.
7, S 62, 68 Stat. 932 (1954), the AEC at all times relevant to this complaint had control over the-possession, ownership, and transfer of uranium ore once it was mined from the ground.
The AEC was permitted to issue licenses for the transfer or ownership-of ore as it deemed desirable to develop the United States Government's uranium supply.
21.
Pursuant to the AEA, ch.
6, SS 52, 53, the AEC at all times relevant to this complaint had exclusive ownership of all i
l uranium concentrate except as permitted by AEC license, without which the uranium concentrate could not be possessed, transferred, or received.
22.
Pursuant to the AEA, the AEC at all times relevant to this complaint-had authority to control the management and disposal of the tailings produced from the milling of uranium cre.
THE UNITED STATES GOVERNMENT'S CONTROL OVER THE HOMESTAKE FACILITY 23.
At all times from about 1958 to 1970, inclusive, uranium milling and tailings disposal operations at the Facility were conducted pursuant to licenses issued by the AEC under the Atomic Energy Act.
Without these AEC licenses, Homestake could not have conducted any uranium milling and tailings disposal activities at the Facility.
24.
As part of its uranium procurement program, the United States Government through the AEC entered into a series of contracts with Homestake for the milling of uranium ore and the production of uranium concentrate.
Those contracts, together with the AEC's statutory and regulatory control, significant presence at Homestake's mills, and control over the uranium ore and concentrate markets, provided the AEC with the authority by which it participated in the operation of the Facility.
25.
The initial contract with Homestake was executed on or around December 20, 1956, between the AEC and a partnership known as the Homestake-New Mexico partners in which Homestake participated.
Pursuant to that contract, Homestake constructed a mill in the Ambrosia Lake area of New Mexico (the "Homestake-New Mexico mill") and began processing uranium ore in February 1958.
A second contract for operation of this mill was executed on or around November 9, 1961.
This mill shut down.in January 1962.
All of the uranium concentrate produced by the Homestake-New Mexico mill was sold directly to the AEC as required by or pursuant to the AEC contracts.
-- - -.-- ~. -.
26.
On or around April 23, 1957, the AEC entered into a contract with a second partnership in which Homestake held an interest, the Homestake-Sapin Corporation partnership.
Pursuant to that contract, Homestake constructed a second mill (the "Homestake-Sapin mill") in the same vicinity as the Homestake-New Mexico mill.
When the Homestake-New Mexico mill closed in 1962,.
portions of that mill were incorporated into the Homestake-Sapin mill, and the two mills are referred to collectively herein as the Facility.
The Homestake-Sapin mill continued to produce uranium concentrate under the 1957 and subsequent AEC contracts through 1970, and thereafter for private purchasers, until it ceased commercial milling operations in 1990.
Until 1970 virtually all' of the concentrate produced by this mill was_ sold directly to the AEC pursuant to or as required by AEC contract.
27.
The contracts executed between AEC and the two Homestake-partnerships described above contained the incentives the United States Government created pursuant to its uranium procurement program to ensure the production of uranium concentrate for its needs.
Those incentives included, under various-contracts, reimbursing Homestake for mill construction-costs up to a-specified limit; establishing prices that guaranteed a profit to Homestake, including escalation clauses to account for increased milling expenses; providing bonuses for the first tons of concentrate Homestake produced; increasing the contract price for
. concentrate to account for any increases in the costs to Homestake of_ uranium ore; and. guaranteeing that the United States Government
- 11'-
would purchase either all concentrate or virtually all concentrate produced by Homestake under the contracts.
28.
The contracts executed between AEC and the two Homestake partnerships described above also gave the AEC substantial control over the operations of the Homestake mills.
The AEC approved the design and siting of the mills and set deadlines for their construction.
The AEC also set the price of all ore purchased by Homestake and determined which of Homestake's mines it could obtain ore from to meet the requirements of the contracts.
The AEC further required Homestake to purchase ore' offered by independent producers at prices set by the AEC.
29.
The AEC set the quantity of uranium concentrate to be produced by the Homestake mills and controlled the specifications, packaging, and delivery of the processed uranium.
The AEC had the right at its discretion to extend the term of the initial contracts and increase the amount of production thereunder up to the capacity of the mill.
30.
As part of its contracts with the AEC, Homestake was required to submit monthly reports on construction work-and specifications of the processed uranium and make available to the AEC its records relating to receipt of ores, assays, payments to producers, and haulage allowances.
Moreover, Homestake also was required to permit the AEC to examine at any time all records of the mill owners pertaining to any transactions related to the Homestake contracts.
31.
The AEC also exercised control over the Facility by virtue of its oversight of the development and operations of the i
..w, e
mills.
AEC representatives reviewed, commented on, made changes-in, and approved the design of the mills and the milling process to be used.
In addition, AEC representatives, typically from the AEC's field office in nearby Grants, New Mexico or the Grand Junction, Colorado office, guided the construction of the Homestake mills and were present during the construction to give advice, make changes, and approve construction activities.. In part, the AEC's significant involvement at the Facility resulted from the AEC's desire to ensure that the Homestake milling processes would be compatible with the ores the AEC directed for processing at the Homestake mills and which the AEC had analyzed.
- 32. - AEC representatives also exercised substantial control over the milling process once construction was completed.
AEC inspectors regularly visited the mills for such purposes as to determine employee radiation exposures, ensure the adequacy-of the sampling facility, ascertain the uranium recovery rate of the process, and otherwise ensure that milling was proceeding smoothly and according to AEC's desires.
Because of their knowledge of other mill processes, these inspectors would also provide on-site guidance for improving the process or would otherwise control aspects of the milling process.
Homestake was obliged in'many instances to comply with AEC guidance and directives due to the AEC's comprehensive-control over the operations at the Facility.
33.
The AEC also exercised-control over the sources of ore to be used by Homestake in the mills.
The AEC would either purchase that ore itself or require mill owners to purchase.
independent or " custom" ore from private producers.
Homestake-was
13 -
permitted to use oro from some of its own mines at;the Homestake-mills, but only those mines designated in the AEC contracts-and only in such quantitles as determined by the AEC._
In addition, the AEC required Homestake to purchase " custom" ore offered to it up to certain levels at prices set by the AEC.
Finally, the AEC required Homestake to purchase ore owned by the AEC itself, again at prices set by the AEC.
This AEC ore was then processed, and the processed uranium concentrate was sold directly back to the AEC, also at prices set by the AEC.
Under the_ contracts,_
Homestake had no choice but to accept this AEC ore, at prices t
dictated by the AEC, and process it for AEC's purposes.
THE DISPOSAL OF TAILINGS AT THE PACILITY 34.
The extraction process for uranium is similar to processes used to extract other minerals from ores.-
The ore is first crushed and ground, usually with water, to a consistency of water-saturated fine gravel or sand.
A leaching process is used to dissolve the uraniun contained in the ore.
35.
After separation from the leach solution, the ore is discharged from the mill as a mixture of solid tailings _and liquids into an on-site impoundment area-known as a tallings pile or' pond.
The generation and disposal of tailings'was an inherent-part of the uranium milling process-which AEC had contracted 1with Homestake to carry out for the benefit of the defendants.
- 36. _ A substantial amount of ore is required to produce usable quantities of uranium concentrate.
On average over the-period from 1958 to 1970 the production of one ton of uranium
14 -
concentrate typically generated between 400 to 600 tons of tailings.
37.
The extraction process for uranium removes a large part of the uranium from the ore.
However, radioactive elements such as uranium-238, thorium-230 and radium-226 and other associated constituents remain in the tailings.
Some of the constituents in uranium mill tailings are considered " hazardous substances" within the meaning of CERCLA.
38.
On June 30, 1982, the U.S. Department of Energy issued a report entitled Comminoled Uranium Tallinos Study in which it documented that an estimated 11,411,223 tons of uranium tailings had been generated pursuant to AEC contracts at the Homestake Facility.
This figure constitutes in excess of fifty percent of the total amount of uranium tailings at the Facility.
DOE estimated that 1,241,774 tons of these tailings were contained in an inactive pile resulting from the operation of the Homestake-New Mexico mill.
The remainder were in a tailings pile commingled with tallings produced from private sales after 1970 associated with the Homestake-Sapin mill.
39.
All of the tailings produced pursuant to AEC contracts at the Facility were disposed of on-site in unlined impoundments.
The design for these impoundments was part of the original construction design of the Homestake-New Mexico and Homestake-Sapin mills, which design and construction was reviewed, l
inspected, commented upon, and approved by AEC.
Moreover, AEC i
reimbursed Homestake for the construction of these tailings Ompoundments as a line item in Homestake's request for
.i
construction credits.
AEC representatives also frequently inspected and visited the Facility and observed the disposal of tailings in these impoundments.
40.
The disposal of tailings in these impoundments was done-with the full knowledge and approval of the defendants, who had the authority to control the mills' method of disposal through the AIC contracts, through the AEC's oversight of the construction and operation of the Facility, through the AEC's statutory, licensing, and regulatory authority, and through the AEC's control over Homestake's uranium ore and concentrate markets.
41.
Moreover, the defendants arranged for the disposal of tailings in these impoundments by virtue of their arranging for the milling of ores on their behalf while at-the same time the defendants knew that the disposal of large amounts of tailings in the impoundments was an inherent and essential part of that milling process.
The defendants further knew that uranium, thorium, and other constituents from these tailings impoundments would likely seep into groundwster.
REMEDIAL ACTIVITIES AT THE FACILITY 42.
Pursuant to section 105 of CERCLA, 42 U.S.C. S 9605, the Facility was placed on the National Priorities List ("NPL").in 1983.
The NPL is a prioritized list of sites in1the United States at which hazardous substances are present and which is considered by the Environmental Protection _ Agency (" EPA") to require remedial action through the expenditure of federal funds, if necessary.
l
- - ~..-
43.
On-June-24, 1983, the United States of America on behalf of EPA filed a civil complaint (No. 83-1023 HB) in federal court under CERCLA against Homestake in which the United States Government alleged that solutions containing concentrations of selenium and uranium were being released from the tailings ponds at the Facility and that the releases had contaminated the groundwater.
On November 29, 1983, Homestake.and the United States Government entered into a Consent Decree whereby Eomestake agreed to carry out certain remedial actions consisting of designing and constructing a permanent alternative water supply system to residents near the Facility who had previously utilized the groundwater for their domestic water supply.
In the Consent Decree, the United States Government agreed that, by executing the Consent Decree, Homestake was not waiving any claim, including claims under CERCLA, which it had against the United States Government for costs arising out of the production of uranium on behalf of the United States Government.
Homestake completed construction of the alternative water supply at its own expense and otherwise fulfilled its obligations under the Consent Decree by 1987.
44.
Since 1976, Homestake has carried out a program to reduce the level of certain contaminants in the groundwater surrounding the Facility under the terms of a Ground Water Protection Plan approved by the New Mexico Environmental Improvement Division.
Homestake's state Groundwater Discharge Plans, DP-200 and DP-339, are part of this state-approved program.
These contaminants emanated from the uranium mill tailings 1
4,--
,.rm-.__m,-
-r.
,.--,r.-
- 17 described above.
The defendants and EPA have-required continual performance and implementation of this groundwater protection plan as part of the remedial action required.at the Facility under CERCLA.
In performing this work, Homestake has expended substantial sums of money and will continue to do so in the future.
45.
On June 30, 1987, Homestake entered into an administrative Consent Order with EPA pursuant to which Homestake at EPA's direction and at Homestake's expense conducted a Remedial Investigation and Feasibility Study ("RI/FS") relating to.the alleged release of radon from the uranium tailings at the Facility.
Following the completion of the RI/FS, on September 27, 1989, EPA issued a Record of Decision (" ROD") under CERCLA wherein it concluded that radon levels-in nearby residences were related to native soils, and found that the Facility was not contributing significantly, if at all, to off-site radon levels.- However, the EPA further stated in the ROD that remedial activities at the Facility addressing remaining tailings, contaminated groundwater, source control and on-site surface reclamation have been and will continue to be implemented by Homestake under the direction of the NRC and integrated with the New Mexico Environmental Improvement Division's approved groundwater protection plan.
These response activities are being conducted consistent with the National Contingency Plan within the meaning of-section 107(a)(4)(B) of CERCLA, 42 U.S.C. S.9607(a)(4)(B)..
46.
On March 30, 1990, EPA sent Homestake a letter denying Homestake's request to delete the Facility from the CERCLA NPL, 4
~
. ~_- -
4.
because "further response actions addressing tailings-contaminated ground water and surface reclamation were needed, and that these activities would be addressed under the direction of NRC, pursuant to (Homestake's) license issued by NRC."
The March 30, 1990, letter from EPA stated further that " physical conditions at the i
site warrant additional response actions" and that after
" completion of the closure of the tailings disposal area-and other remedial measures undertaken in full compliance with 10 C.F.R. Part 40, Appendix A (the applicable Federal standards for disposal site response), the EPA.
shall determine whether all required response actions with respect to the site have been implemented."
47.
Between 1986 and 1992, the NRC has repeatedly amended Homestake's Facility license to require Homestake to carry out certain remedial activities arising out of the disposal of tailings at the Facility, including, but not limited to, groundwater corrective action and on-site surface reclamation.
In particular, between July and November 1990, Homestake constructed a lined evaporation pond system at substantial expense pursuant to the NRC's direction.
These remedial activities are being conducted consistent with the National Contingency Plan within the meaning of section 107(a)(4)(B) of CERCLA,.42 U.S.C.
S 9607(a)(4)(B).
48.
On October 31, 1990, Homestake's NRC license was amended to require,'among other things, the submission of a Final Reclamation Plan, which Homestake has done.
NRC is currently reviewing this final reclamation plan and Homestake is awaiting
NRC approval of it. -Implementation of the final reclamation plan will involve substantial expense to Homestake.
49.
The remedial activities required by EPA and NRC are in substantial part directed at hazardous substances contained within the uranium ore tailings which were disposed at the Facility during the period from 1958 to 1970, inclusive,_when the United States Government was an operator of the Facility and arranged for the disposal of hazardous substances at the Facility.
The remedial action required for these substances includes remedial measures with respect to the tailings themselves.
50.
Homestake has incurred and will continue to incur substantial response costs consistent with the National Contingency Plan with respect to response activities at the Facility.
FIRST CAUSE OF ACTION -- " OPERATOR
- LIABILITY 51.
Homestake incorporates herein the allegations of paragraphs 1 through 50 above.
52.
The racility is a " facility" as defined by section 101(9) of CERCLA, 42 U.S.C. S 9601(9).
53.
Each of the defendants is a " person" as defined by
-section 101(21) of CERCLA,-42 U.S.C. S 9601(21).
The NRC is an agency of the United States within the meaning of section 120(a)(1) of CERCLA, 42 U.S.C.
S 9620(a)(1).
54.
From 1956 to 1970, inclusive, the' United States Government, through the actions and authority of the AEC and its successor agency the NRC, had substantial authority and exercised control over the operations of the Facility, and eachiof the
defendants was thus an " operator" of the Facility at the time of the disposal of hazardous substances at the Facility.
55.
There has been a release or threatened release of hazardous substances from the Facility.
56.
Such release or threatened release of hazardous substances has caused and will continue to cause Homestake to incur "necessary costs of response" within the meaning of section 107 of CERCLA, 42 U.S.C.
S 9607, including without limitation the costs which Homestake has incurred and will continue to incur in monitoring, assessing, and evaluating the release or threat-of release of hazardous substances.and performing removal and/or remedial activities.
57.
The response costs which Homestake has incurred and will continue to incur are consistent with the National Contingency Plan.
58.
Defendants are-jointly and severally liable for the costs that Homestake has already incurred and will in the future incur in responding to such releases or threatened releases of hazardous substances.
59.
Defendants are liable to Homestake for conrribution for-the costs that Homestake has already incurred and will in the future incur in responding to such releases or threatened releases of hazardous substances.
SECOND CAUSE OF ACTION -- " ARRANGER" LIABILITY 60.
Homestake incorporates herein the allegations of paragraphs 1 through 50 above.
1 1
61.
The Facility _is a " facility" as defined by section 101(9) of CERCLA, 42 U.S.C. S 9601(9).
'62.
Each of the defendants is a " person" as defined by section 101(21) of CERCLA, 42 U.S.C. S 9601(21).
The NRC is an agency of the United States within the meaning of section 120(a)(1) of CERCLA, 42 U.S.C. S 9620(a)(1).
63.
From 1956 to 1970, inclusive, the United States Government, through the actions and authority of the AEC and its successor agency the NRC, possessed and exercised authority to control the disposal of hazardous substances at the Facility, and each of the defendants was thus a person who " arranged" for the disposal of hazardous substances at the Facility.
64.
From 1956 to 1970, inclusive, the United States Government, through the actions and authority of the AEC and its successor the NRC, arranged for the milling of uranium ores under its ownership or control for the purpose of producing uranium concentrate for its purchase, with full knowledge that the production and disposal of uranium mill tailings was an inherent and necessary part of such milling.
Each of the defendants is thus a person who " arranged" for the disposal of hazardous substances at the Facility.
65.
There has been a release or threatened release of hazardous substances from the Facility.
66.
Such release or threatened release of hazardous substances has caused and will continue to cause Homestake to j
incur "necessary costs of response" within the meaning of section l
107 of CERCLA, 42 U.S.C. S 9607, including without limitation the
costs which Homentake has incurred and will continue to incur in monitoring, assessing, and evaluating the release or threat of release of hazardous substances and performing removal and/or remedial activities.
67.
The response costs which Homestake has incurred and will continuo to incur are consistent with the National Contingency Plan.
68.
Defendants are jointly and severally liable for the costs that Homestake has already incurred and will in the future incur in rosponding to such release 3 or threatened releases of hazardous substances.
69.
Defendants are liable to Homestake for contribution for the costs 1at Homestake has already incurred and will in the future incur in responding to such releases or threatened releases of hazardous substances.
WHEREFORE, Homestake requests that this Court enter judgment in favor of Homestake and against defendants as follows:-
(1) declaring that defendants are jointly and' severally liable under section 107 of CERCLA, 42 U.S.C. S 9607, for all response costs which were incurred in the past or which'will be incurred in the future by Homestake in responding to such releases or threatened releases of hazardous substances; (2) declaring that defendants are liable to Hom2 stake for contribution under sections 107 and 113(f)(1) of CERCLA, 42 U.S.C.
SS 9607, 9613(f)(1), for all response costs which were incurred in the past er which will be incurred in the future by
6 0 Homestake in responding to such releases or threatened releases of hazardous substances; (3) in such amount as may be determined by the Court to satisfy the obligations and liabilities of defendants for response costs incurred by Homestake in responding to such releases or threatened releases of hazardous substances; and (4) for interest, costs, attorneys fees, and such other and further relief as the Court determines is just and appropriate.
THE PLAINTIFF HOMESTAKE MINING COMPANY OF CALIFORNIA BY Wm 0W Murray Ogborn Harding & Ogborn Suite 1000 1200 Seventeenth Street Denver, Colorado 80202 (303) 629-1429 Ridgway M. Hall,-Jr.
R. Tianothy McCrum William L. Anderson CROWELL & MORING 1001 Pennsylvania Avenue Washington, D.C.
20004-2595 (202) 624-2500 t
Its Attorneys Dated:-October 15, 1992 i