ML20134P292
| ML20134P292 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/22/1994 |
| From: | Treby S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Merges P NEW YORK, STATE OF |
| Shared Package | |
| ML20134M893 | List: |
| References | |
| FOIA-96-444 NUDOCS 9702250325 | |
| Download: ML20134P292 (106) | |
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UNITED STATES j
e, NUCLEAR REGULATORY COMMISSION j
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December 22, 1994 j
omcE onNE j
GENERAL COUNSEL Dr. Paul J. Merges, Ph.D.
l Chief, Bureau of Radiation
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Division of Hazardous Substances Regulation j
New York State Department of Environmental Conservation j
50 Wolf Road j
Albany, New York 12233-7255 i
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Dear Dr. Merges:
i We have prepared this letter in response to questions presented l
in your December 7, 1994 letter to Gregg Gordon, Regional State Agreements Officer in. Region I, regarding New York's regulatory jurisdiction at Indian Point Unit i reactor facility.
In I
particular, you would like to know our formal interpretation _as to whether the State of New York has jurisdiction to regulate, i.
for the purpose of environmental protection against radiation j
hazards, the leakage of water from the spent fuel pool at the facility site.
We note ~that the Commission's regulations i
authorize the General Counsel to issue formal, written j
interpretations of the regulations which are recognized as t
binding on the Commission.
However, the General Counsel i
exercises this authority very sparingly and only in instances involving major policy or legal questions.
Following issuance, j
these interpretations are codified in 10 CFR Part 8 of the
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Commission's regulations.
To date, only four written l
interpretations have been issued.
Accordingly, this response does not constitute a formal interpretation, but rather contains our informal views on this matter.
l For reasons-discussed below, we believe that it is unlikely that j
the State has authority to impose the regulatory requirements mentioned in your letter.
As a general rule, states do not have the authority to regulate Atomic Energy Act (AEA) materials or l
facilities for the purpose of protecting the public health and safety from radiation hazards.
Under its Agreement with the NRC, however, the State of New York has authority, subject to some limitations, to regulate byproduct material, source material, and special nuclear material in quantities not sufficient to form a critical mass.1 The limitations on New York's authority over l
AEA materials stem from 5 274c of the AEA.
These limitations are i
listed in Article II of New York's Agreement and further explained in 10 C.F.R.
I 150.15.
In particular, 5 150.15 (a) and 1
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" Agreement Between the United States Atomic Energy Commission and the State of New York...,"
October 15, 1962.
I 9702250325 970219 PDR FOIA ENGLISH96-444.PDR
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its statement of considerations (or preamble) indicate that NRC, j
alone, regulates the discharge of radioactive effluent at production and utilization facilities such as Indian Point 1.8 i
Given this legal framework, we believe that it is unlikely that New York has authority to regulate the discharges described in your letter.
Your letter states that, during discussions related to the Cintichem facility in 1990, URC staff indicated that Agreement States and the NRC have joint jurisdiction of environmental contamination at NRC licensed facilities.
We note that the dual licensing situation at the cintichem facility involved special, case specific conditions.
The staff did not intend to imply any conclusions beyond those specific to that particular licensing case.
We regret any misunderstanding that may have occurred with regard to this issue.
,i While the state has authority to impose a variety of environmental regulations (not related to AEA materials) agcinst NRC licensees, it is unlikely that the State has authority to impose regulations of the nature described in your letter for the purpose of. protecting of human health and the environment from radiation hazards stemming from AEA materials.
Accordingly, any state regulation of radiological contamination caused by AEA materials at the facility site (with some possible exceptions such as low-level waste disposal or air emissions) is likely to be outside of the state's jurisdiction.
We are not aware of any state legal authority that would alter this conclusion with regard to the issue at hand.
We note that NRC does not have authority to make final decisions regarding issues of state jurisdiction and AEA preemption.
Such decisions are reserved to the Courts.
In addition, decisions regarding state jurisdiction and the AEA are necessarily fact specific and often depend on the purpose behind the State's regulatory measures.
Accordingly, if there are additional facts I
or issues relevant to your question that were not communicated in your letter, please let us know.
Since ly, l
f tuart A. Treby Assistant Genera Counsel for Rulemaking and Fuel Cycle l
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See, 27 Federal Register 1351 (February 14, 1962).
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JEB, Northeast Ohio Regional Sewer District 3826 Euclid Avenue Cleveland, Ohio 44115-2504 216 881 6600 FAX: 216 881 9709, December 23, 1994 i
Steven Crockett, Esq.
Office of the General Counsel M/S OWFN 15B18 U.S. Nuclear Regulatory Commission Washington, DC 20555 Re:
Request for Pleadings
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Dear Mr. Crockett:
Pursuant to your request of December 21, 1994, enclosed please find copies of the Complaint and Temporary Restraining Order briefs we filed with the Federal District Court.
l During our telephone discussion, you insinuated that you had had some troub3e obtaining these documents previously. As you had never in the past requested any documents of any kind from the Northeast Ohio Regional Scwer District, we can only assume that you have had problems in obtaining documents from other parties. 'Ihe Sewer District has at all times responded promptly to requests for doctments. (Further, the Sewer District has generally waived the search and copy charges that accompany FOIA requests to the NRC.) We would appreciate it if you would not paint all parties with the same broad brush.
You also indicated that your interest in the enclosed documents was in the prospect for possible intervention by the NRC in the instant case.
We would remind you that the NRC has heretofore failed and refused to intervene where it could do the most good -- by teminating the use of the Advanced Medical Systems facilities at 1020 London Road and ordering its complete decontamination. The fact that the facility remains in use and continues to harbor hundreds of Curies of loose Cobalt-60 is mute testimony to the good faith of the NRC in protecting the interests of the public.
Notwithstanding the prior failure to control the nuclear materials used inside and onsite at the AMS facility, you imply that the NRC may seek to interfere with the Sewer District's efforts to contain the abundant
_ Cobalt-60 contamination to the AMS property. We would respectfully advise you that although we may have conceded some deference to NRC expertise in the area of radionuclide storage and handling -- the area in which the NRC has failed to appropriately act -- the Sewer District will not concede any special expertise to the NRC in the area of sewer line E
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D hh The mission of the Northeast Ohio RegionalSewerDistrictis to enhance public health and welfare through the et11cient, cost-etfective conveyance and treatment of wastewater. This is acconplished by an organization dedicated to professionalism, fairness and consistency that anticipates and responds to the changing environmentalneeds of the community
. _ = _ _ - _
Stevan Crcckstt, Esq.
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- Decelber 23, 1994 Page Two i
integrity, soundness of building structures, adequacy of pretreatment procedures, or what constitutes an interference with the Sewer District's operations.
l We will, of course, defer to the NRC in the event that the NRC seeks criminal sanctions against AMS, to avoid double jeopardy problems. Based on past experience, however, it does not appear that the NRC is willing to pursue such sanctions against AMS or its officers. We would certainly accommodate you in the event your policy of non-prosecution changes.
Please let us know if you have any questions about the foregoing.
Veryf ruly yours, t
.i dawrenceK.Eng1W Assistant Genera M ounsel encl.
cc:
Sara J. Fagnilli Thomas E. Lenhart l
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- Q IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION NORTHEAST OHIO REGIONAL
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SEWER DISTRICT,
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PLAINTIFF'S MOTION FOR ADVANCED MEDICAL SYSTEMS, INC.,
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TEMPORARY RESTRAINING et al.
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ORDER t
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Defendants.
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Plaintiff, Northeast Ohio Regional Sewer District ("NEORSD") Inoves this Court, pursuant to Rule 65 of the Federal Rules of Civil Procedure, for a Temporary Restraining Order immediately restraiaing Defendant Advanced Medical Systems, Inc., and each of the other Defendants herein and their agents, ernployees or attorneys and those persons acting in concert or association with them (collectively " Defendants"), from discharging, by any means, any water, wastewater or stormwater runoff into the public sewer system at 1020 London Road, City of Cleveland, Cuyahoga County, Ohio; that Defendants be ordered to report to this Court the roethod(s) they will use to collect and dispose of the discharges so
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enjoined; that Defendants be ordered to permit Plaintiff to conduct a full inspection (s) of I
Defendants' facility; and that Plaintiff be permitted to maintain plugs in the London Road Interceptor at each connection thereto from Defendants' facility at 1020 landon Road.
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P1mintiff seeks this
=ym.iy relief because Defendants have violated and will i
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continue to violate Plaintiff's sewer use rules and regulations and because immediate and
'uwebk injury, loss, and damage will result to Plaintiff unless a e.=yeimiy restraining 4
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order is sranted.
k This Motion is supported by the Brief in Support attached hereto and
. f Liye..a4 by reference herein, and by the supporting amdavits filed herewith. Also l
attached is Pinintiff's proposed Temporary Restraining Order comprising the relief sought l
herein. Plaintiff requests that the Temporary Restraining Order be issued and become j
effective without the filing of a bond.
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PWy submitted, i
WILLIAM B. SCHATZ (0016467) c..=.-, c_
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LAMp GLISH (0042718) 4 Ass *m mt Northeast Ohio Regional Sewer District
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3826 Euclid Avenue Cleveland, Ohio 44115 (216) 881-6600 j
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FRANK A. DIPIERO'(0008312)
LISA E. HOLLANDER (0032755)
VALERIE M. FLADUNG (0055561)
Squire, Sanders & Dempsey
_ p 4900 Society Center Br 127 Public Square Cleveland, Ohio 44114 j
(216) 479-8500 i
Attorneys for Plaintiff j
l NORTHEAST OHIO REGIONAL SEWER DISTRICT _-.
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i CERTIFICATE OF SERVICE i
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. j A copy of the foregoing Motion for Temporary Restraining Order, Plaintiff's Brief in l
l Support ofits Motion, and Affidavits in Support thereof were hand-delivered to Dwight A.
L Miller, Esq., Stavole & Miller,1604 Bluminating Building, Cleveland, Ohio 44113; and to Henry E. Billingsley, II, Esq., Arter & HaMen, 925 Euclid Avenue, Suite 1100, Cleveland, Ohio 44115-1475 this /7 day of D-W,1994.
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION j
NORTHEAST OHIO REGIONAL
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j SEWER DISTRICT,
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CASE NO.
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Plaintiff,
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JUDGE
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PLAINTIFF'S BRIEF IN i
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SUPPORT OF ITS MOTION l
ADVANCED MEDICAL SYSTEMS, INC.,
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FOR TEMPORARY j
et al.
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RESTRAINING ORDER AND
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APPLICATION FOR i
Defendants.
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PRELIMINARY _INENCILON INTRODUC3QN 4
This Court's intervention is ergendy needd to prevent defendants' contimmt F
discharge of radioactive materialinto the public swer system operated by plaintiff Northeast i
Ohio Regional Sewer District ("NEORSD" or " District").
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Defendants, including Advanced Medical Systems, Inc., their agents, employees I
and/or those acting in concert or association with them (collectively "AMS"),' have
.f continued to discharge wastewater intennittendy contaminated with radioactive Cobalt-60 from their facility at 1020 landon Road in Collinwood despite assurances that the discharge In addition to Advanced Medical Systems, Inc., the defendants herein are ATC Group, 8
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Inc.; Advanced Technology Corporation; Seymour S. Stein, Ph.D., P.E. & Associates, Inc.;
Seymour S. Stein, Individually; AMS international Sales Corp.; ATC Group; ATC Betatron Corp.; Universal Motor lamp Corp.; Advanced Medical Systems, Inc. of Florida; Automated Development Corp.; ATC Automated Development Corp.; ATC Medical Technology; Lucille Stein; Eight Factory Row Company; ATC Medical Group; ATC Nymold Corp. and ATC Automation Developtnent Corp.
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of radioactive Cobalt-60 had ceased as of January 1,1994. After the continued discharge of 1
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i Cobalt-60 was confirmed by scientific testing of the wastewater discharge from AMS, the 4
k District issued a cease-and-desist order prohibiting any further d:wh rge of wastewater as of e
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5:00 p.m. on Monday, October 24,1994. Defendants ignored the cease-and desist' order and continued to discharge wastewater frosn their lendon Road facility. The Cuyahoga County Court of Ca==an Pleas entered a Temproary Restraining Order, on November 15,1994 i
enjoining AMS' dirh-ga, which order was in effect until December 12,1994, at which l
time the state court determined that it lacked authority to decide NEORSD's case and should f
,1 be brought in federal court. Unless this Court endoins Defendants' discharge, the District, 1
the environmmw and the public face a serious risk of irreparable harm.
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i BACKGROUND 2 i.'
i Since 1980, AMS has diahrged Cobalt-60 from its landon Road facility into the District's sanitary sewer system as a part of its teletherapy and radiography sources I
j fabrication pivcss and related activities. A lateral sewer line runs from the AMS building f
and connects directly to the District's Imndon Road interceptor. A second sewer line i
connects to catchbasins on the AMS p+6y. 'Ibe sewer system under Imndon Road i
j transports this wastewater to plaintiff NEORSD's Easterly Wastewater Treatment Plant i
(" Easterly"). (Ex. C 112,3) At Easterly, solids are vernoved from the wastewater and
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pumped through a force main to NEORSD's Southerly Wastewater Treatment Plant j'
(" Southerly") in Cuyahoga Heights. There, the solids are treated, concentrated and t
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2 The factual allegations in this section are supported by the Affidavits of Erwin J. Odeal, r
Thomas E. I.enhart and Richard Connelly, attached to this Brief as Exhibits A,.B and C, j
L respectively. The affidavits of Mr. Odeal and Mr. Connelly are true and accurate cop!es of the affxiavits filed in the Cuyahoga County Court of Common Pleas case. See Affidavit of Sara J.
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Fagnilli, attached hereto as Exhibit D.
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incinerated. & 14) The ash from the incineration process is then pumped to three ash ii, i[
lagoons at the southern end of the Southerly property. Periodically, the ash from these i
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lagoons is removed and deposited in various locations on the Southerly invdy. (Ex. C 15, i
6)
In May 1991, the Nuclear Regulatory C<----- h-ion ("NRC") informed NEORSD that various areas of the Southerly facility indicated higher than norrnal radiation levels. (Ex. B
- 13) These areas included locations where incinerator ash had been deposited aAer removal i
from the ash lagoons. E) Investigations by the NRC and NEORSD revealed the radiation k'
source to be Cobalt-60. % 14) AMS is the only source ofloose Cobalt-60 within the NEORSD service area.8 (LL)
I NEORSD's Southerly facility is a wastewater treatment facility, not a nuclear Ik materials storage or disposal facility. E 15) As a result of this identified radioactivity, NEORSD has been forced to expend over $1.5 million in characterization, monitoring and t
containment activities, and may be required to expend as much as $40 million to $100 million in the future for removal and disposal of the radioactive material thus far discharged by AMS. E 16) More significantly, NEORSD has been and will be restricted in its use 1
of land, sludge and ash to the point where its ability to treat wastewater may be impaired.
'Ibe District may also be forced to comply with regulations goveming the storage and disposal of radioactive material because of their presence at the Southerly facility. The cost of these actions and regulatory requirements (unless recovered from Defendants) will be h
passed on to the District's ratepayers through higher user charges. % 17) 8 AMS' license with the NRC authorizes it to possess 150,000 Curies of Cobalt-60 in loose solid metal form.
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E E!
In April 1991, the District filed a lawsuit in the Court of Conunon Pleas, Cuyahoga
.j County, alleging several causes of action against defendants for damage to its pwy as a f
result of Cobalt-60 cantaminarian That action also included a prayer for a permanent injunction to prohibit future discharges of Cobalt 60 to the sanitary sewer. In its Answer, AMS admittad discharging Cobalt-60 into the system in the past. However, both AMS and the NRC w --- i to the District that the discharge of Cobalt-60 from AMS had ceased.
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(Ex. B 118, 9,10)
As part of discovery in the lawsuit, NEORSD investigated the immediata area t
f surmunding the point where AMS' discharges enter NEORSD's Iendon Road Interceptor sewer. Extensive radioactive contamination was discovered. Moreover, it was observed that I
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a heavy, constant flow of water was being discharged from the AMS lateral connection to the sewer. This was cause to investigate further, since both the NRC and AMS had assured NEORSD that no processes were ongoing within the facility that would involve the use t
and/or discharge of large volumes of water. Gd.111)
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Accordingly, NEORSD began taking samples of the discharge from the Iondon Road Facility. Between July 5,1994 and October 10,1994, nine samples were taken. Five of l
those samples showed levels of Cobalt-60 in the wastewater. (Ex. B 112; Ex. C 17) In addition, a sample of Southerly filter cake (sludge) collected on September 22,1994 contained 151 pCi/g (picoCuries per gram) of Cobalt-60. (Ex. C 18) Further sampling between October 10,1994 and November 18,1994, indicated eighteen additional discharges h
of Cobalt-60 into the wastewater. (Ex. B 114)
Based on the District's past experience with Cobalt-60 discharges, it is clear that the
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District's facilities are unable to treat or remove Cobalt-60 from the sewage received or from 4
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i the resulting sewage byproducts. Past discharges of Cobalt-60 into the public sewer system l
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resulted in radioactive contamination of the District's sludge, incinerated sludge ash, and the
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ash lagoons and fill areas of the Southerly property. (Ex. A 13) The prospect of any i
I further Cobalt-60 discharges by AMS may,'as a practical matter, prohibit the District from treating wastewater. See infra page 13. Thus, Erwin J. Odeal, the Executive Director of NEORSD, determined that any current discharges of Cobalt-60 were =re ptable, as the District could not allow continued contamination of its prnce<=ea and facilities with i
radioactive material. (IL) f Consequently, on October 21,1994, NEORSD issued a cease-and-desist order to AMS, directing it to cease all discharge of wastewater into the public sanitary system by I
5 p.m. on Monday, October 24,1994. (See Attachment 1 to Ex. A) (Ex. A 12; Ex. B i
113; Ex. C 19; and attachments thereto). However, AMS failed and refused to comply with the order. (Ex. B 114) NEORSD's iaW nn of the wastewater discharge from the i
London Road Facility on October 26,1994, revealed that water continued to be discharged from the London Road Facility's dierharge pipe into the District's sanitary sewer. (Ex. C 1 r
not to comply with the order. (See Attachment 2 to Ex. A; Ex. A 15) f On October 27,1994, the District filed a Motion for Temporary Restraining Order in the state court to prohibit defendank from discharging to the sanitary sewer. 'Ibe court granted the TRO (as well as an extension), copies of which are attached as Exhibit "E," and scheduled a Preliminary Injunction hearing. During the hearing, the court issued a Memorandum of Opinion and Order granting a Motion to Dismiss made by Defendants 6
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pursuant to Ohio Civil Rule 12(bX6) on grounds unrelated to the injunctive relief sought by
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NEORSD. A copy of that Order is attached hereto as Exhibit "F."
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NEORSD seeks Wr ry indunctive relief to prevent further injury until such time as I
this Court can fully adjudicate the District's right to refut,e to accept AMS' ongoing j
discharge of Cobalt-60. It is apparent that AMS is unable or unwilling to ensure that its I
wastewater discharges are free from Cobalt-60. Tne only way to prevent interference with j
the District's w. dens by radioactive discharges from AMS is an order that AMS cease s#
discharBes to the public sewer system. Accordingly, NEORSD respectfully urges this Court to order AMS to cease its discharge and to further order AMS to permit NEORSD to fully inspect AMS' premises, and allow the District to continue to block AMS' d* d..a and compel AMS to take such steps as are necessary to ensure that such blockage does not endanger any person or property.
ARGUMENT l
I.
NEORSD IS ENTITLED TO INJUNCTIVE RELIEF 'ID BLOCK AMS' DISCHARGE OF WASTEWATER INTO THE PUBLIC SEWER l'
SYSTEM
'Ibere are two distinct and independent grounds pursuant to which the District may obtain injunctive relief to put an end to AMS' continuing interference with the public sewer system the District operates. First', the Ohio Gereral Assembly has authorized the immuwe of injunctions to enforce rules and regulations adopted by regional sewer districts to, igar I
alia, prohibit or regulate discharge into the districts' waste water facilities. Ohio Rev. Code
$6119.08(D). Under Ohio law, when a statute grants a specific injunctive remedy to a party, an injunction may issue without a demonstration of " irreparable injury without adequate I
remedy at law," as in traditional equity actions. An injunction should be granted simply l
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. y upon a showing that the statutory conditions have been met. It cannot be disputed that those
. conditions have been met here.
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Second..even if NEORSD's statutory right to iqjunctive relief is ignored and the i
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Court undertakes a traditional " balancing of the equities" approach, it is manifest that this bala=* tips in favor of NEORSD and the requested igiunction should be granted. Both I
g grounds for injunctive relief are set forth in detail below.
b A.
NEORSD is Entitled to Igjunctive Relief to Compel Defendants' i
C--u== With the Dt- *ct's L f'9=
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j Section 6119.08 of the Ohio Revised Code authorizes the Board of Trustees of i
4 NEORSD to "make and enforce such rules and regulatitms as are necessary and advisable:
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(D)
To pmhibit or regulate the discharge into the waste j
water facilities of the district of any #guld or solkf wasta t
3 detrimental to its works and improvementr." (Emphasis added.)
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Pursuant to the authority granted it by Ohio Rev. Code f 6119.08, the District adopted its Code of Regulations (" Code"). Section 1.0906 of the District's Code provides that the a
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l Executive Director may suspend the service of the District's facilities to any person whose J
i discharge is determined by the Executive Director to be m=cqtable. Section 1.0905 of the r
g Code defines u==cW=ble discharges as including, inter alia, discharges which are l
l determined by the Executive Director to:
(c)
Contain materials or substances which are in any way deleterious to any j
part of the system.
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(e)
Cause the District to incur excessive expense in the hamiling or i
treatment thereof.4 2
The Executive Director in fact determined that AMS' continuing discharge of radioactive l
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8 Cobalt was deleterious to the waste water system and that the District would contime to l
incur excessive expenses in monitoring, containing and disposing of the Cobalt. Thus, on i
October 21,1994, the Director issued a cease-and-desist order to AMS ordering that it cease
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all discharges into the system operated by NEORSD. This action was authorized by section F
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1.0906 of the Code, which states:
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l Unaccqptable Discharges - Refusal of Service - The Executive j
i Director may refuse the service of the District's facilities to any j
person whose dM.is is determined by the Executive Director
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e to be n =-w-hie in accordance with the provisions of this j
l chapter.
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l This action was further authorized by section 2.0604 of the Code, which states in part:
h Emergency Suspension of Service - The Executive Director may i
for good cause shown suspend the wastewater treatment service l
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of a discharger when it appears to the District that an actual or threatened discharge presents or may present an imminent or l
s, substantial danger to the health or welfare of persons, subsenneini danger to the environment, may interfere with the operation of
~ the PO1W [ publicly-owned treatment works), or may violate i
any discharge limits imposed by Title I or Title II of the Ends j
of Renulations. Any discharger notifed of the suspension of the District's wastewater treatment service shall cease all 2
discharges.
As established above, AMS refused to comply voluntarily with the cease-and4esist order. In such a situation, Ohio Rev. Code i 6119.08 specifically authorizes the insnance of i
an injunction to enforce NEORSD's Code. Section 6119.08 states:
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- 1he definition of "=ce prable discharges" also includes those discharges which contain hazardous or toxic substances, and substances which " inhibit the perfortnance of the treatment i
process." Ses Ex. A, Attachment I fl.0905(a), (b), (d) and (f).
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The board may enforce by... iq) unction... rules and regulations made by h pursuant to this section, and i
l may... close any opening or connection made improperly or j
in violation of such rules and regulations.
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The refusal of AMS to comply with NEORSD's Code, coupled with the explicit statutory I
grant of iq)unctive relief for such violations, entitles NEORSD to the requested iqiunctive i
relief without further showing ofiuAle injury or inadequate remedy normally necessary f
j-in equitable proceedings of this type.
This premise was settled in Aderman v. Tri-Ciry Geriatric & Health Care, Inc., 55 Ohio St. 2d 51 (1978), in which Ohio's Director of Health sought an igiunction to
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prohibit the operation of a nursing home which had not obtained an operating license. 'Ibe j
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stamte which obligated the operators of the home to obtain a license also containart a provision specifically authorizing the Director of Health to obtain an order to eq)oin any person from operating a nursing home without a license. 'Ibe Court held that upon a f
showing that the statutory prerequisite had been met (i.e., the absence of a license), the injunction should be granted, without the need to consider equitable defenses or maxima.
I The Court stated:
h It is established law in Ohio that when a statute grants a specific injunctive remedy to an individual or to the state, the party requesting the injunction "need not aver and show, as under ordinary rules in equity, that great or irreparable injury is about to be done for which he has no adequate remedy at law...."
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Moreover, it is the majority rule in federal courts and the law in 5
a growing number of state jurisdictions that, where an injunction is authorized by a statute designed to provide a governmental agent with the means to enforce public policy, "no balancing of
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I equities is wesenry,"... and" [i]t is enough if the statutory j
conditions are made to appear."
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11 at 56-57 (citations omitted).
The Court further stated, in reasoning equally applicable here, that the statute at
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issue:
was designed by the General Assembly to benefit society by i
g' proscribing behavior (the unlicensed operation of nursing 5;
homes) which the General Assembly has determined not to be in l
the public interest. It would, herefore, be redundant k i
require the Dirseer of Henkh to show Li:,22 dannage er i
lack of an adequate legal runnedy once he has alowady proved i
that the condidens which the General AssanNy has deemed i
worthy ofiq/unestre isfy arist. In addition, it would be i
inappropriate to balance the equities or require the Director of i
Health to do equity in an R.C. 3721.08 i @mrtian action i
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because R.C. 3721.08 hium:tions and similar iriunctions which j
authorize a gover=nental agent to sue to e:Qoin activities W harmful by the General Assembly are not designed I
primarily to do justice to the parties but to prevent harm to the j'
general public.
j li at 57 (emphasis added).
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i Similarly, here, the General Annambly has determined that iniunctive telief should be I
j granted upon the failure of a discharger to comply with NEORSD's Code, and there is no f[
need (indeed, it would be wou-y to law) to require a showing ofirreparable harm by i
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NEORSD or to "halance the equities htween the parties.s.Ihus, AMS should be ordered to comply with the cease-and-desist order and to permit inspection ofits facilities so that the l
District's Code may be enforced safely and effectively.
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- See also, Illinois Bell Telephone Co. v.111. Comnserce Com'n, 740 F.2d 566, 569 (7th j
Cir.1984) (TRO granted; defendant compelled to follow PCC regulation); Troller Train Co. v.
i State Rd. ofEqualization, 697 F.2d 860 (9th Cir.1983), cert. denied, 464 U.S. 846,104 S.Ct.
)
149, 78 L.Ed.2d 139 (1983) (violation of federal railroad tax statute etioined); Atchison, 3 g T & S.F Ry. Co. v. lennen, 640 F.2d 255 (10th Cir.1981) (same); Savage v. McAmy, 26 Fair L
Emp. Prac. Cas. (BNA) 114; 23 Empi. Prac. Dec. (CCH) 131,085 (S.D. Ohio 1980) ("the violation of statutes proscribing racial and other forms of discrunination cause irreparable harm j
without more"). -
e p
B.
The Balance of the Equities Favors NEORSD's Request For Injunctive peHer
.P As demonstrated above, under Ohio law the right to injunctive relief is pr-e-d in a l
case such as this without funber proof relating to irreparable harm or ia%te legal i
l rernedy. If this Court agrees with that proposition, it may disregard the rmainder of this i
Brief. Even if this settled principle is ignored, however, and the Court engages in the traditional balancing of equities to determine whether an injunction should issue, it is evident that NEORSD should prevail.
1 The traditional standards a plaintiff must satisfy in order to show its entitlement to injunctive relief in this jurisdiction are familiar and well settled. NEORSD must demonstrate:
i e
a strong or substantial likelihood of success on the merits; e
that it will be irreparably harmed if an injunction M u k; e
that the defendants and others will not be caused
~
significant harm by the issuance of an injunction; and
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that the public interest will be served by the e
granting of injunctive relief.'
NEORSD can satisfy each of these requirements and its motions for injunctive relief should be granted.
- In re Del.orean Motor Co.,155 F.2d 1223 (6th Cir.1985); Mason County Medical Ass'n L
- v. Knebel, 563 F.2d 256 (6th Cir.1977); Crews v. Radio 1330, Inc. 435 F. Supp.1002 (N.D.
Ohio 1977); accord, Diamond v. Gentry Aequisition Corp. 531 N.E. 2d 777,778-79 (C.P. Cuy.
Cry.1988). }
. -. ~
i.
!'h iE i
i 1.
Dere are sumelent facts showing that AMS has failed to abide by l
NEORSD's cease-and-desist order such that NEORSD is likely to i
==ec=ad on th = ;6 of the e
{
It is demonstrated above that NEORSD's Code was promulgated pursuant to statute, J
a that pursuant to that Code AMS was ordered to cease diarharging waste water isso the sewer kl system, and that such discharges have not termin= rad. Defendants cannot dispute these facts.
AMS has caused and will cause the District to expend substantirl funds to sample, c m.h and contain the radioactivity and arrange for p eper storage and/or disposal.
The presence of radioactivity has aheady er==ad the District to scmtiny by the NRC and possible imposition of the NRC regulatory scheme for nuclear material storage facilities Upon the District, a sanitary sewerage authority.
}
4 All of these factors show that the current discharges from AMS into the District's system interferes with and is a pasaatial danger to the publicly-owned treatment works gi i
("POTW") and the environment. The Executive Director rightfully determined that any I
ammmr of Cobalt-60 is " deleterious" to the sewer system in violation of section 1.0905(c),
will cause the District to incur suharantial expense in violation of section 1.0905(e), and presents a ;-mntial danger to the environment and the POTW under section 2.0604.
AMS has refused to comply with the Order. As evidenced by the recent laboratory results, Cobalt-60 was entering the District's system through AMS' discharge pipe, prior to the pipe being plugged by the District. More L yvii.nily, Defendant began discharging wastewater collected pursuant to the Temporary Restraining Order issued within hours of the disminist of the lawsuit from the Common Pleas Court. (See Ex. B 115) Thus, the only Ia.
AMS to cease its discharge into the District's sanitary sewer. f
T I
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E This relief is merited. The above facts show that NEORSD is likely to enec=1 on t
j the merits of its claims against AMS. NEORSD need not at this stage demonstrate beyond I
1 jl doubt that it will ultimately succeed on the merits, especially if the other factors necessary for iqiunctive relief are present to the Court's satisfaction. See, e.g., Hamilton Watch Co. v.
Bentur Watch Co., 206 F.2d 738, 740 (2d Cir.1953) ("it will ordinarily be==T that the h
[ moving pey] has raised questions going to merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation"). NEORSD can and has met :his burden with the filing of this Motion and its supporting materials.
1 2.
Unless a Temporary Restraining Order is issned, i
NEORSD will anfter :nu -=W iniury.
1 A restraining order is necessary to prevent defendants from taking further action IO adverse to the District. See Snelling & Sneliiig, Inc. v. ARICO, Inc., 83 Ohio App. 3d 89
(
(1993). Each discharge of Cobalt-60 into th sanitary sewer system heightens the cantaminatian and increases the iqiury to NEORSD. This is physical and environenantal i
damage that cannot be adequately compensated by dollars; once radioactivity is present it must be addressed, with extensive action required and substantial costs incurred. It is illegal to landfill Cobalt-60-caaraining ash on District property, and prohibitively expense to ship it offsite. It is illegal to incinerate sludge which contains radioactive contaminanen. It is illegal to store or landfill radioactively contaminated sludge. Hence, once Cobalt-60 has entered the system, every step in the solids-handling process is impaired. A restraining order and injunction is the only effective means by which to suspend the flow of Cobalt-60 until the
(
risk ofinjury to the District is properly assessed and the remedy addressed.
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Such an injury is considered irreparable. An irreparable injury is one:
I i
for the redress of which, after its occurrence, there could be no plain, adequate and complete remedy at law, and for which restitution in [ money] would be difficult or incomplete.
i Ohio 7hinpike Coun. v. Taaco, Inc., 64 Ohio Op.2d 383 (Cuyahoga C.P.1973).' Further,
[
injunctions are appropriate to put an end to repeated or continuing injury resulting from a maisance or trespass even if each individual igiury amounts to a mere " trifling." 56 0.Jur.3d Injunctions i 119 at 111-12. Here, of course, the repeated dirhnrge of radioactive Cobalt i
l amounts to substantini repeated and enatinuing injury to NEORSD. Igiunctive relief is, i,
l l
therefore, appropriate.
3.
The reaW Order will not canaa suhetan*In1 ha'in to afhars.
Blocking AMS' access to the public sanitary sewer system :ny=E only AMS. No other individual or entity's access to the system will be affected. AMS, as a user of the District's newer system, has an obligation to comply with the District's Code or have its service suspended. The suspension of service will not have a catastrophic impact on AMS.
{
There are other options for disposal of wastewater other than the public sewer system.
For example, AMS can continue to divert any wastewater to a tank to be disposed of in an
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appropriate maner, such as evaporation, filtration through Cobalt-60-specific ion-exchange resin, or such other method reviewed and approved by the District. (See AttarAment 3 to Ex. A) The only harm to AMS will be that it must make the effort to identify and pursue l
7 It is clear this type of harm cannot be remedied by the payment of money damages, so
(
the District does not have an ada=* remedy at law for the harm AMS has and may hereafter cause if it is permitted to continue its discharge into the sewer system. Given the huge costs associated with the prior discharges of Cobalt-60 by AMS, however, it is unlikely that AMS
(
could satisfy the Court and/or NEORSD (by the posting of a bond, for example) that it could fully compensate the District in any event. Thus, the injunction should issue. See 11 Wright and Miller, Federal Practice and Procedure f2944 at 3%.
t L l 4
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- T such options. In the interim, AMS will have its right to discharge fully adjudicated in this I
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Court. Certainly the harm to the District of continued discharge of a long-lasting radioactive
{
material outweighs the limited expenditure of effort required by AMS to redirect hs i
1 discharge during the i--A--:y of this case.
D.
Restraining continued discharges of Cobalt-60 is clearly in the nuhHe 8=*==t.
g l
H Entry of an order restraining AMS from discharging an===rmble and potentially
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iriurious substance will further the interests ofjustice with the least possible restriction on AMS. It is the District, the environment, and the District's constituents, the public served I
by it, that face the probability of irreparable harm from the pp of radioactive material in the District's facilities and on its property. Certainly, any inconvenience to AMS in i
making alternative discharBe arrangements is heavily outweighed by the interest of the it7 District and the public in protecting itself from long-term iqiury. h proposed Order will
' {
prevent further injury until the Court can consider the rights of each party. If the Order is i
not granted, it will be suc& ally impossible for the Court to redress the harm to NEORSD.
Entry of the narrowly-tailored Order proposed by NEORSD, however, will allow all parties to *"""**ly Protect their rights in court while the District is protected from additional noncompensable irsury.
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CONCLUSION NEORSD has provided sufficient evidence that AMS' conduct is in contravention of i
the District's lawful authority to regulate use of the public sanitary sewer system. 'Ibe Ohio General Assembly has prescribed iqjunctive relief for this violation. NEORSD also has shown that each of the traditional equity factors favor the granting of a temporary restraining
[
order. It is clear that the District, and the public, would be irreparably harmed if AMS is allowed to continue to discharge==:eirible amounts of Cobalt-60 into the public sewer treatment system. NEORSD therefore requests that its Motion for Temporary Restraining Order be granted.
l PWy submitted, WILLIAM B. SCHATZ (0016467)
General r= )
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. FAG l0029753)
'LISH (0042718)
Ass' 1
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Northeast Ohio Regional Sewer District 3826 Euclid Avenue Cleveland, Ohio 44115 (216) 881-6600 A41k 0 FRANK A. DIFIERO (0008312) l LISA E. HOLLANDER (0032755) i -
VALERIE M. PLADUNG (0055561)
Squire, Sanders & D-+wf I
4900 Society Center I
127 Public Square Cleveland, Ohio 44114-1304 (216) 479-8500 Attorneys for Plaintiff
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NORTHEAST OHIO REGIONAL SEWER DISTRICT 7 }
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l CERTIFICATE OF SERVICE 1
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A copy of the foregoing Plaintiff's Brief in Support ofIts Motion for Temporary
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Restraining Ortier and Application for Preliminary Iti+ was handslelivered to Dwight A. Miller, Esq., Stavole & Miller,1604 Illuminating Building, Cleveland, Ohio 44113; and
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to Henry E. Billingsley, H, Esq., Arter & Hadden,925 Euclid Avenue, Suite 1100,
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Cleveland, Ohio 44115-1475 this /8 day of D-W,1994.
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.h the Atto Plaintiff l
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. f-IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO i
NORTHEAST OHIO REGIONAL
)
SEWER DISTRICT
)
)
CASE NO. 249860
)
Plaintiff,
)
JUDGE STUART A. FRIEDMAN I
(
)
)
v.
)
)
AFFIDAVIT OF ADVANCED MEDICAL SYSTEMS, INC.
)
ERWIN J. ODEAL M 3L
)
(
)
Defendants.
)
1, Erwin J. Odoal, on behalf of plaintiff, Northeast Ohio Regional Sewer District ("NEORSD"), and in support of plaintifra Motion for a Temporary Restraining f
Order and Motion for a Preliminary injunction, state the folkwing:
1, I am the Executive Director of the Northeast Ohio Regional Sewer I'
Distnet.
t L
i EXHIBIT A
!..g
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- 2.. On October 21,1994, NEORSD hand-delivered to AMS a civil cease-and-desist order directing AMS to " cease all discharges of any type to any an building drains and/or building sewers" by 5 p.m. on Monday, October 24,199 I
i l
copy of the Order is attached hereto as Attachment 1.
- 3. Based on the District's past experience with Cobalt-60 discharges, it is I
k clear that the District's facilities are unable to treat or remove Cob i
j sewage received and the resulting sewage byproducts. Past discharges of Cobalt-60 I
into the public sewer system resulted in radioactive contamination of the District's
{'
sludge, incinerated sludge ash, and the ash lagoons and fill areas of the So property. Thus, I determined that any current discharges of Cobalt-60 were unacooptable, as the District could not allow continued contamination of its processes
~
and facilities with radioactive material.
E 4.
The coew-and-desist order was issued pursuant to the authority h
given to me by the District's Code of Regulations, Sections 1.0906,1.0005(c) and 2.0604.
l 5.
On October 25,1994, I received a letter dated October 24,1994 from AMS' legal counsel which indicated AMS' intention to not comply with the October 1994 cease and desist order. A copy of the October 24,1994 letter is attached t
I hereto as Attachment 2. A copy of the District's response is attached hereto as l.
t 0
1, 1
2-
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FURTHER AFFIANT SAYETH NAUGHT h
M r/.6 Y Erwin J/Odoal
(
i SWORN TO BEFORE ME and subsenbed in my presence this dPday of October, i
- 1994, i (
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$llt L :'.M h arr eh-
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$7 Alt O> C$Q 2
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_ - has no emoinneen date.
section 147.C3 L C.
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~E Northeast Ohio Regional Sewer District 3826 Euclid Avenue a Cleveland, Ohio 44115 2504 216
- 881
- 6600 FAX:216 881 a 97h9 HAND DELIVERED BY MiSSENGER AND CERTIFIED NAIL RETLRN RBCEIPT REQUESTED October 21, 1994 i
Advanced Medical Systems, Inc.
1020 f = dan Road Cleveland, mio 44110 ATIN: David Cesar
Dear Mr. Cesar:
The Northeast Ohio Regional Sewer District (" District") has been sampling and analyzing your wastewater discharge into the sanitary sewer at 1020 London Road. 1he results of these efforts are set forth below.
h In addition to the radioactive material identified in these effluent samples, a sample of Southerly fil'.er cake (sludge) collected on September 22, 1994 contained 151 pCi/g of Cobalt-60.
SAW LE RESULTS POR 1020 LONDON ROAD DATE COLLECIED PARAMT. EL ACTIVITY 7/5/94 Cobalt-60 29 pCi/L 8/17/94 Cobalt-60 33 1/L 9/16/94 Cobalt-60 0
1/L L
9/20/94 Cobalt-60 0
1/L 9/22/94 Cobalt-60 0
1/L 9/28/94 Cobalt-60 14 pC1/L 10/1/94 Cobalt-60 87 1/L 10/4/94 Cobalt-60 0
1/L 10/10/94 Cobalt-60 306 1/L As the result of prior discharges of Cobalt-60 fres this facility the District has incurred significant costs and continues to incur such, F
costs related to the existing contamination at the Southerly Wastewater 4
El Treatment Plant and for monitoring for possible additional discharges such as catalogued above, despite the fact that such discharges are now prohibited by 10 CFR 20.2003.
ATTACHMENT 1 The nussen of the Northeast Ohio Regonal sewerDistrict is 80 enhance public heath aM weNate ttwough the etts. nt. cost.
t
,I effective conveyance aM treatmers of wastewater. This is accottplished by an organization cladicated to professo.tahsm.
tamess aM consistency that anticQNates ad responds 80 the charlping enviironmental neecis of the cornmuruty.
j
! -E i
Mr. David Cesar i
E October 21, 1994 i
Pye 2 i
i Pursuant to the authority of the District's Executive Director i
discha.the District's Code of Regulations (" Code") Section 1.0904, the ader i
rge from the Advanced Medical Systems facility at 1020 im dem Road j
has been determined to be macceptable.
In particular, the discharge contains material that is deleterious to the wastewater treatment system i!y as set forth in Code Section 1.0905(c) and causes the District to incur 3;
excessive expense in the handling or treatment thereof as set forth in l
Code Section 1.0905(e).
! f In accordance with Code Section 1.0906, the District will no longer i
provide wastewater treatment services for the 1020 imdan Road facility l
>illing accoat number 01369851009.
i-In addition to being unacceptable under Code Section 1.0906, the discharge from 1020 London Road appears to present a substantial danger to the environment or may interfere with the operation of the 70!W. As stated in Code Section 2.0604, the Enocutive Director may order an j
emergency suspension of service under such conditions.
4
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You are therefore directed, pursuant to Code Sections 1.0906 and 2.0604, to cease all discharges of any type to any and all building drains and/or building sewers as such terms are defined in Code Sections j
t 1.0104 and 1.0205. This prohibition on discharge includes sanitary flow j
b and industrial process water, as well as the discharge of any i
i storasater. 'Stormwater discharges are unaccestable due to the i
possibility of Cobalt-60 contas:. nation from t w roof, storm drains and
{
connecting sewer being carried to the public sewer by such stormwater.
You are required to comply w% this order in its entirety by no later than 5:00 p.m.
=
Monday, October 24 1994. Failure to comply with this Order by said time will result in su,ch legal or physical actions deemed necessary or justified rader the circumstances, including but not limited to physical disconnection of the 1020 London Road faci 1Lty from the District's system.
A copy of Code Sections cited are enclosed.
Sincerely, l
J. Odoal I
s Executive Director f
Enclosures cc:
Sara J. Fagnilli I
E' Henry BA111ngsley, II i
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NORTHEA:::5i OHIO q
REGIONAL t
SEWER DISTRIUi
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$:b.R Code of Regulations J
g e e.::. s.--
-: ~ <. - s -
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j t
i Title I Sewer Use Code The Code of Regulations contains three Titles:
- Sewer Use Code,
- Pretreatment Regulations, and
- Separate Sanitary Sewer Code.
r i
This Title has been separately printed for distribution to those entibes most 1
affected by the regulations contained herein, The User is advised that the other Titles may be applicable as well.
ADMNSTRATWE OFRCES
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3826 Euclid Avenue
- Cleveland, Ohio 441152504
- 8818800 WaterQualityandindustrialSuneillance 6416000 g
""'**"8"-
Pnntes: January.1992
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QDMER 2 - MlFINITIGIS l
Section 1.0201 Definitions - unless the content speifically indicates otherwise, the meaning of the fonowing i
terms wherever they are used in this code shall be as j'
defined in the fonowing sections.
i Section 1.0202
' Approving Authority" - shall mean the Executive j'
Director of the Nortneast Ohio Regional sewer District or his designated representative.
t Section 1.0203
- BOD * (denoting Biochemical orygen Demand) - shall j
y meaii the gaantity of crygen utilized in blodemical f
oxidation of organic matter under standard laboratory procedure in five (5) days at 200C, expressed in milligrams per liter.
Section 1.0204
- Building Drain" - shall mean that part of the lowest horizontal piping of a drainage syste whi e receives 1
4 l
l the dis &arge from soil, waste, and other drainage pipes including sump pumpe, roof drains, and other similar connections, inside the waus of the building and conveys it to the building sewer beginning five j
(5) feet (1J meters) outside the interface of the building.
section 1.0205
- Building sewer" - shall maan tt.t extension from the h'
builcing drain to the public sewar or otier place of i
l disposal.
section 1.0206
- C' - shall mean centigrade degrees.
section 1.0207 "ceD* (denoting chemical oxygen Demand) - shall mean j
tWaecunt of oxygen consumed from a maical oxidant i
under standard laboratory procedures expressed in
{
milligrass per liter.
i Section 1.0208
- Combined sewer * - shan mean a sewer designed to j
receive notn sanitary sewege and storm water runoff.
?
Section 1.0209
- Control Manhole" - shan mean a structure that is accessanle for the parpose of maintaining a building sewer. A control manhole may be used as an inspection chamber.
section 1.0210
- Cooling water" - shan mean the water discarge frca any system of condensation, air conditioning, k
cooling, refrigeration, or other sources. It shan b
contain no polluting substances whi d would produce BOD or ss (suspended solids) each in excess of ten parts per million by weight, or toxic substances as
[
limited in this code or other pouuting substances whim may be limTtill in this Code.
I-2 Revised 3/91
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l section 1.09031 Inspection and sampling - the District may inspect I
tne reculty or any User in order to determine compliance with the requirements of these j
regulations. The dischargers shall allow the j
r District or its representatives, without prior notice, upon presentation of credentials of identification, to enter spon the praises of the j'
User at all hours for the purpose of inspection, sampling, or records examination. Delays in i
E, permitting access to District personnel in excess of i
ten minutes shall be considered a failure to comply l
E with this Code for purposes of section 1.0923. The District asm have th. righe to set up on th. o.er's i
1 i
property sue devices as are renamary to conduct i
sampling, inspetion, compliance monitoring, and/cc i
metering operations. sue devices may include l
electronic teleostry of alarms and sensors.
i section 1.0904 Acceptability or Ur h viability of Dis e arge -
Determinatier. cy District - The Executive Director j
snau cetermine ene acceptability or unacceptability of any disdarge to the syste. and a determination l
shall be made on the basis of sound engineering and i
operational evaluations taking into consideration the nature and concentration of the discharge, its point i
of entry into the systa, its compatibility with g
other discharges in the$ stem, its capatibility i
with the treatment facility receiving it, all j
applicable federal regulations, and all other factors i
(o pertinent to the effect of the discharge on any part i
of the system or treatment process.
i section 1.0905 cr w eiable Discharges - Una y unble disearges 1
anau ine* cnose waid have been determined by the j
Exesative Director to:
(a)
Centain materials or substances whie would j-constitute a hazard 'to life and limb of personnel engaged in inspetion, maintenance, l
(
and operation of the syste.
1 (b)
Contain materials or substances which are toxic j
as defined in section 1.0267 of this Code.
i (c)
Contain materials or substances which are in i
I any way deleterious to any part of the syste.
h (d)- Contain concentrations of any toxic or deleterious materials or substances in excess i
y-of any limits set thereon in accordance with i
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this Code.
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(e)
Cause the District to incur excessive expense l
in the handling or treatment thereof.
2 i
i I-31 movised 3/91
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(f) se incompatible with the treatment process or i
inhibit the performance of the treatment process at a District treatment facility.
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(g) se of such volume or contain sue 300, suspended solids, or other material load whid
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would cause the treatment facility to exceed j
g its design capabilities.
i (h) cause a treatment facility of the District to j
fail to meet effluent requirements set by state i
i and Federal regulatory agencies or cause such effluent to have a degrading effect on the j
receiving body of water.
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(i) contain viable gathogenic organims in such j
gaantities as to be a hazard to public health.
($)
cause a treatment facility of the District to i
fail to meet effluent regairements as j
established under the District's WEES Permit.
4 l
Section 1.0906 Unacceptable Dis e arges - Refusal of service - the j!
Executive Director may refuse the service oc the District's facilities to any person whose disearge is determined by the Executive Director to be unacceptable in accordance with the provisions of 6
section 1.0907 Ur h W e Dise arges - Pretreatment maquired -
Administrative Order - Any User whose ****rge has
[-
noen cetermined oy tne Executive Director to be urhg.able in accordance with the provisions of this chapter may be issued ministigative orders to P
install and operate a pretreatment system designed to render said disearge acceptable. She Executive Director may issue orders to any industrial user to require ccapliance with any requirement under these code of Regulations, including applicable categorical pretrEtment stannards, other dis &arge limits, and reporting requirements.
Section 1.0908 Acceptable Methods of Pretreatment - Review by District - nemion of Pretreatment Metnod - 1he acceptam111ty of a pretreatment metnoo zor any given disearge and the terms for the installation and use thereof shall be reviewed by the Executive Director.
sue a review shall be made on the basis of sound engineering and operational evaluations taking into consideration all factors pertinent to the effect of the dis &arge both before and after pretreatment en
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any part of the system. If the pretreatment system is found to be unacceptable then the Executive Director may refuse service under section 1.0906, or may require additional information or design modifications to make the pretreatment method acceptable.
l I-32 novised 3/91
l.c F
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, NORTHEAST OHIO
~
r REGIONAL i
SEWER DIS I HIC i
!t lE
[.;
Code of Regulations. -
l Title II lb' Pretreatment Regulations i
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i 1
F I
The Code of Regulations contains three Titles:
- Sewer Use Code, i
- Pretreatment Regulations, and i
e Separate Sanitary Sewer Code.
l This Title has been separately printed for distribution to thdse entities rnost affected by the regulations contained herein. The User is advised that the other i
Titles may be applicable as well.
1 y
g ADMINISTRATNE OFFICES 3
iL 3826 Euclid Avenue
- Cleveland, Ohio 441152504 = 8814800 l
Water Quality and Industrial Suneillance - 6414000 g
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Pnntes: January.1992 4
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f i
personal service or oe:tified mail, return reesipt regaested, specifying the time and place of a haering i
to be held by the soard of Trustees or its desigrated Bearing F,xaminer regarding the violation, the reasams j
dy the enfoconsent action is to be taken, the proposed s
enforcement action, and directing the disdarger to show cause before the Board of Trustees or its designated Bearing Examiner uhy the proposed enforcueent action should not be taken.
The notice of the hearing shall be served no less than seven calendar f.
days before the hearing. service may be made on any
(
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agent, officer or authorized representative of a dis &arger or to the disdarger's priaatsi place of g
F
. business or to the facility at whie the noncespliance coeurred. She FM4 age at the hearing shall be in accordance with section 1.0302 and 1.0303 of Title I af eis code of Regulations, and the determination by the Bo M 2 N stees snau ne made in the manner i
j prescribed in that section.
l Section 2.0604 Emergency alspension of Service - the Esecutive Director may for good cause snown suspend the testeunter treatment service of a disdarger when it I
appears to the District that an actual or threatened dis &arge presents or usy present an imminent or 3
i substantial danger to the heale or welfare of persons, substantial danger to the environment, may interfere i
with the operation of.the 70DF, or may violate arg j
g dis &arge limits imposed by Title I or Title 2f of the Code of mogulations. Any disdarger notified of the i
y aspe Rion or tne District's unstauster treatment
{
service shall cease all discharges. In the event of f
j failure of the disdarger to czag4y with the suspension order within the specified time, the District shall taka all actions necessary, including but not limited to $adicial proceedinge, to campel the discharger's W4-wie sue order. The dis &arger shall be i
i responsible for all costs associated with said action, The District shall reinstate the unsteueter treatment service upon receipt of proof of the elimination of the i
e lying m eAmege or conditions creating the threat of isuminent or substantial danger as set forth j<
above.
l section 2.0605 Judicial Proceedings - Following the final appeal to ene District permitted under procedures for Administrative determinations of section 5.1 of the Code the General Counsel of the District may,
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TE1To, wing the authorization of sud action by the j
District, czemence an action for appropriate legal and/cc equitable relief in the appropriata local court.
section 2.0606 Enforcement Actions - Annual Publication - At least j
wi.aany, the r,xecutive Director snan publish a list 4 i of all industrial users whid at any time during the l
previous twelve months were in significant non-i csupliance with applicable pretreatment requirements.
- [i II-26 novised 3/91 1
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j ARTER 8e HADDEN i
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umm.i nom.
i sesmandAssous i
l Qeveland,Olsie 441151475 1
l 21tOSE1100 Fassimile 218500 3845 i
Iteit.rs B&seet mal mmma==i i
l (SAS) 000-3873 l
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October 24, 1994 i
i l
l Mr. Erwin J. Odeal
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Executive Director Northeast Ohio Regional Sewer District 3826 Euclid Aye: sue i
Cleveland, Chice 44115-2504 l
Ret Advar.soed Medical Systems l
N File 63931/49779 i
E i
Dear Mr. Odoals Advanced Medical Systems "ANs") has referred to me your letter of October 21 1994 direc(ting AMS to " cease all discharges of any type to any an,d all building drains and/or building sewers
.." frosa its facility at 1020 London Road in Cleveland.
i The purpose of this letter is to advise
- you, snost I
respectfully, that NECRSD's directions to AMB are insupportable j
under NRC regulations currently in effect, and under NB0RSD regulations.
Further, an attesyt on the part of NE0RSD to enforce
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its directives by physically bl=*4== or otherwise disabling the drains from the AMS facility would constitute arbitrary and j
capricious action and could result in liability on the part of i
NBORSD for all consequences of this action.
Let me explain.
I No first received notice of your cease and desist order on the afternoon of October 21, 1994.
The order threatens a termination of all servloe if not oosplied with by 1700 hours0.0197 days <br />0.472 hours <br />0.00281 weeks <br />6.4685e-4 months <br /> today.
Inasmuch jk i
as NEORSD, apparently, is taking the position that AMs has been E
violating NRC discharge regulations since July a cease and desist 1
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i m onumous massas manner wasmania aauseammtac
} l ARna & MADDEN ARTER.MABCOL ARna&MABEsN ARIER& MADDEN ARTER&MADEsM
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20wonarmedsensi,aan sies Jasosow&amana==n a swknam$ sidssies nesamens weven,aussesose laniEseum,nw.seesos l
8%L==h== Gede 4R1644E 1717 Mats Suun,asser410p W -**NM tm Angela,Casernenseetm "
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GHm34335 maass,7anns M 218 6 830s 6 7tes ATTACIDGENT 2 4
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ARTER &HADDEN I
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Mr. Erwin J. Odoal i
October 24, 1994 Page 2 i
l order issued last Friday, calling for compliance by no later than j
close of business today is hardly reasonable notice.
k Nore to the point, however, the sampling data cited in your letter as the basis of NSCRSD's action do not support any l
besla. ion of servios, much less a suspension on an emergency
-" m We note that of the total of ten sampling dates listed 4
j four show na presence of Cobalt 60 in any amount.
There is, therefore, hardly a.msis upon which the NBORSD can maintain that 3
there is a continuing discharge from the facility.
j e
Assuming that NE0RSD's measurements of radioactivity in wastewater in the sewer are acourate there is no basis upon which the district can conclude that these are di=ahavges in violation of 10 C.F.R. 20.2003. If we were to assume, for argument's sake, that i
there is a continuous discharge in the amount of 305 y Ci/1 from j
the AMS facility, and that 12,000 gallons of water per day are put through the sewer drains at AMS (both of which assusyklons vastly l_ U everstate the facts) then the total, accumulated discharge, at this rate, over the course of a year, would be 5.073 millicuries.
This g'
total is orders of magnitude less than gna RAE SSig of the total L
annual discharge of one Curie authorised by the regulation.
A similar result applies to the monthl mawi==
discharge concentration set forth in the regulation. y i
Under no stretch of the imagination are there discharges casing from AMS in violation t
of MRC regulation, even if NE0RSD's maximum numbers are accepted as i
valid and a grossly overstated degree of water usage is considered.
t The regional office of the 3Dic that has responsibility for AMS has confirmed to AMS that the NRC does not regard the readings i
received by NE0RSD as indicative of a violation of NRC regulations.
Nor does the NRC regard these " discharges", even if the numbers are valid, as anything that would pose any threat of harm to the j.
public.
Wes wish to stress that we do not accept as valid any of the data that NBORSD has presented in support of its osase and desist 4
order.
Ew.1 if that data is somepted as accurate however, it still does not demonstrate a violation of NRC di=^=eg,e regulations j
or a basis for NE0RSD's threatened action against AMS.
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{..E ARTER 8eHADDEN l'
Mr. Erwin J. Odeal i
October 24, 1994
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Page 3 i
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Not only is there no legal basis for the cease and desist
- order, but the implementation of this order by serious consequences for which NEGItSD will be liable. sus g
f and desist order includes all disobarges of storm water.The cease i
drainage of storm water off the roof of the facility were If the i
weight of sooumulated water on the roof could cause i
i damage to the roof and to the building.
j g
through a structurally daanged roof could result in The introduction of a
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to the building and a sempromise of the structural integrity of the a
l hot cell and the WRUT room beneath it.
t It is worthy of note that the NRC has advised us that they are i
not at all concerned about the " discharges" that form the basis of i
your cease and desist order, but that they would be very concerned if N300t3D were to proceed with unilateral action that resulted in j
damage to the roof of the facility.
j F
If there is residual contamination in the lateral AMS would be En Prepared to proceed with decontamination of the lateral as soon as Practical.
that portion of the AMS line that connects with the London Roa j
e j
interceptor to do this work.
matter with you directly or with your legal staff as you see fit.We would be j
We respectfully desist order and est, however, that you withdraw the cease and no steps to enforce it by suspending service.
t l
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Very truly yours, i
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ingsley, r
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g ARTER &HADDEN Mr. Erwin.7. odaal October 24, 1934 1
j Page 4 i
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E Dwight Miller, Esq.
oc stavole & Miller 55 Public square Suite 1604 l
Cleveland, Ohio 44113 i
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ll Northeast Ohio Regional Sewer District iI 3826 Euclid Avenue
- Cleveland, Ohio 441152504 216 881 6600 FAX:216
- 881 97d9 l
I 8
1 j
October 25, 1994
)
Henry E. Billingsley, II, Esq.
1 Arter 4 Hadden j
H atington Building 925 Buclid Avenue, Suite 1100 j [
Cleveland, Ohio 44115-1475 l
Re:
Advanced Medical Systems, Inc.
{
Cease 4 Desist Order
- o
Dear Mr. Billiassley:
j Your letter of October 24, 1994, to Erwin J. 0 deal, Executive jj Director has been referred to me for response. You and I had the W uanl to discuss this matter at length yesterday morning, and as I l
l told you
, the District believes its has sufficient legal basis for l,
issuing the cease and desist order.
As you had been previously advised, the District became aware that l
cobalt was bei discharged into the I m lan Road sewer in August when it was informed the Mtc that a sample it had taken contained cobalt.
I continued sampling has revealed further discharges of cobalt into the j=
London Road Interceptor, and in the sludge at the Southerly Nastewater Treatment Plant. You should be aware that cease and desist orders 4
generally call for immediate cessation of discharge. In this instance, the Emocutive Director felt that Advanced Medical Systems would need a l
short period of time within dich to make other arra ts for its flow. It is apparent to the District that AMS has no attempt whatsoever to arrange for alternative disposal of its wastounter.
Your statement that the District alleges ' violation of Igic regulations in s of a cease and desist order is incorrect.
1herefore, the lations that you have provided are irrelevant. The District is currently testing its sample to determine whether in fact the cobalt found in those samples is solele, and will report those f!adias to the Itc. We also have spoken to Mr. Caniano, letc Region III, and were told that the IEtc does believe the discharges identified in the District's samples are violations of Mtc regulations. In fact, since January 1,1994, the 75tC's position has been that cobalt discharges from AMS would se violate DEtc regulations. That informatica, however, is
(
notdirectfrWevanttotheceaseanddesistorderwhichhasbeenissued.
l ATTACHMENT 3 The nussen of the Northeast Ohio ReplonalSewerDistrictis n enhance pubhc heath ancf eveMare through the efficient. cost-ettective comeyance atut treatment of enestewater. This is acconphshed by an organitation deckcated 80 professionalism, lamess ancf consistency shat anttopates arut responds to the chanping emkonmentalneeds of the cornmunity.
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t E. Billingsley, II. Esq.
r 25, 1994 i
Page 2 i
,p 4
l What is important, however, is the fact that the facility at 1020 l
London Road for the past four parters is using an average of 85 thonaand cubic feet of water per quarter, a flow rate that is far in excess of basic sever usage for sanitary facilities only. In fact, the last
. {
quarter shows a 66% increase or more than 53 acf from the previous parter. 1bese high flow rates suggest either an industrial process or a j
cleaning operation that may be contributing to the discharge'of cobalt.
More important is the discovery of cobalt in the sludge at Southerly at a level which causes interference with the rouse or disposal of solids. As you are well ausre, the District has incurred substantial
}
cost to handle radioactive unste which has came from your client's f
facility. The District is not required to accept any discharge that causes an interference to the plant or that the District deems unacceptable in accordance with its regulations. 1berefore, it is the District's position that anir discharges of cobalt can cause an i
j interference with the pla Tn and the District will no 1 cager accept this waste.
t l
It is interesting to note that you do not accept as valid an the data that the District has presented in support of its order. y of j
i i
However, I also note that do not indicate in letter nor did you l
i b indicate in your conversat with me yesterday you believe this to l
be so. 1he District has had the samples analyzed an independent laboratory and has no reason to believe that the analysis is not accurate.
I note that your letter does not address any of the legal authority contained in the cean Water Act or the District's regulations which are i
based upon the Clean Water Act. What is of greater concern to the District, is your admission that AM5' building is not structurally l
soind. 1here are many things which could cause blockage of the stors l l drains from the roof area and your acknowledgement of the risks that that i,'
might cause to the facility is of great concern. The condition of the facility As a result of your client's bad management of the facility i
during their years of production. The District believes that it is well within its ridats to block AM5' access to the t-tan Road Interceptor.
I l i The District will not take any action idtich might cause any environmental harm to the neighborhood due to the containated condition of your l ;
cliaet's building. However, if the District blocks access to the sewer, i 1 any damage resulting from AMS' failure to take reasonable readily available measures to provide disposal of wastounter would be the responsibility of AMS, not the District.
l
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As you indicated 'to me yesterday and your letter seems to further i
support, it is AMS' intention to continue its discharge and take no steps
{i f to comply it with the cease and desist order. The lateral connection L
from AMS has been containated at least since 1988. In 1988 concrete was l
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E. Billingsley, II, Esq.
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Oc~
r 15, 1994 j
Page 3
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poured in a portion of the sewer, yet it still remains contaminated.
i The District has no way of knowing where the cobalt contamination is coming i
i from, that is, whether it is. contamination from the inside of the j
lateral the sewe,r or intentional discharges. contamination which is leaking f l {
inspectors to do their work, has only componded the problem.
Your client's refusal to allow our The District does not believe that decontamination of the lateral at some i
l time in the future is a solution to the current problem that it faces.
I r
1he District has been recei i
P-discharges which the District cobalt from that sewer, those are ires to prohibit. Tbs District j
believes the later should be ahandanad or removed. As I told you 3
have done,by yesterday to syesterder there are many things that M can j
its discharge into the landon Road sewer.
t one suggestlen uns to block sewer and pump any unstewater from the j
manhole into a tank to be disposed of in an appropriate manner.
l.
- Since it is apparent from my conversation with you, your letter to i
Director 0 deal and information received from our investigators that M i
has no contention to comply with the order by arranging for alternative i
disposal of its unstauster, the District has no choice but to take steps j
to force m to comply with the order. Due to its concern for the environment and the neighborhood surrounding M' facility, the District i
will seek to enforce the cease and desist order in court. You will be he appropriately sdrised when the District takes its action.
I 1he District remsts having to take further steps to enforce its order. Since your clnant has refused to comply with lt, you have left f
the District no other choice. Should you wish to roccasider your position, please contact me immediately.
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K L:
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is. t 1 Counsel ec:
Erwin J. Odoal 1
Dwight Miller, Esq.
I bec:
Van Carson, Esq.
Willian 3. Schats i
Lawrence E. Enslish i
Thomas E. Leahart j
Rich Connelly IL 1
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f IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION NORTHEAST OHIO REGIONAL
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CASE NO.
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SEWER DISTRICT,
)
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Plaintiff,
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JUDGE
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)
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AFFIDAVIT OF ADVANCED MEDICAL SYSTEMS, INC.,
)
THOMAS E. IRNHART etal I
)
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k Defendants.
)
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I, Thomas E. Ienhart, on behalf of plaintiff, Northeast Ohio Regional Sewer District
("NEORSD"), and in support of plaintiff's Motion for a Temporary Restraining Order and Motion for a Preliminary Injunction, state the following:
I aru an Assistant General Counsel for NEORSD. As such, my position 1.
involves investigation and enforcement of violations of the NEORSD Code of Regulations
(
2.
NEORSD is a regional sewer district organi~d and existing as a political subdivision of'one State of Ohio under Chapter 6119 of the Ohio Revised Code. NEORSD owns and operates the intercepter sewers which transport wastewater to the Easterly Wastewater Treatment Plant (hereinafter referred to as " Easterly") located at 14021 I.ake
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Shore Boulevard, Cleveland, Ohio, and the Southerly Wastewater Treatment Plant (hereinafter referred to as " Southerly") located at 6000 Canal Road, Cuyahoga Heights, j
Ohio.
i EXKIBIT B
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3.
In May,1991, the Nuclear Regulatory Commicion ("NRC") informed NEORSD that areas of the Southerly facility indicated higher than normal radiation levels.
These areas included locations where incinerator ash had been deposited after removal from
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i the ash lagoons.
4.
Investigations by the NRC and NEORSD revealed the radiation source to be 4
Cobalt-60. AMS is the only known source of loose Cobalt-60 within the NEORSD service area.
t 5.
NEORSD's Southerly Facility is.a wastewater treatment facility, not a nuclear
(
materials storage or disposal facility.
6.
NEORSD has been forced to expend over $1.5 million in characterization and containment activities, and may be required to spend as much as $40 - 100 million in the
[e f aue for removal and proper disposal of the radioactive material thus far discharged by AMS.
7.
NEORSD has been and will be restricted in its use of land, sludge and ash to the point where its ability to treat wastewater may be impaired. NEORSD may also be forced to comply with regulations governing the storage and disposal of radioactive material because of its presence at the Southerly facility. The cost of these actions and regulatory requirements will, by necessity, be passed on to NEORSD's ratepayers through higher user charges.
8.
AMS has admitted that its lendon Road facility discharged Cobalt-60 into the sewer system in the past.
9.
Both AMS and the NRC represented to NEORSD that the discharge of Cobalt-60 from AMS had ceased.
1
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j 10.
NEORSD investigated the immediate area surrounding the point where AMS discharges enter NEORSD's London Road Intercepter sewer. Extensive contamina i
discovered. Moreover, it was observed that a heavy, constant flow of water wa l
L discharged from the AMS lateral connection to the sewer. This was cause to inv further, since both the NRC and AMS had assured NEORSD that no prreense j
1 within the facility that would involve the use and/or dis e oflarge volumes of water.
s 11.
Accordingly, NEORSD began taking samples of the discharge from the
(
i 4
i London Road Facility. Five of those samples showed levels of Cobalt-60 in the wastewa 1
4 12.
On October 21,1994, NEORSD issued to AMiii a civil cease-and-desist order 3
j directing AMS to " cease all discharges of any type to any and all building drains and/or I
building sewers" by 5 p.m. on Monday, October 24,1994. A copy cf the Order is attached l
hereto as Aachment 1.
\\
b 13.
E AMS has failed and refused to comply with the cease-and desist order.
14.
Samples taken between October 10, 2004 and November 21,1994, showed eighteen additional discharges of Cobalt-60 into the sanitary sewer. (A list of the s i
results is attached hereto as Attachment 2).
1 l
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1-15.
On Decanter 12,1994, AMS began discharging wastewater from tanks and 4
the loading dock area via what is believed to be pumps and hoses over the street and to the sanitary sewer.
J FURTHER AFFIANT SAYETH NAUGHT
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c J M <--
Thomas E. I.anhart f
SWORN TO BEFORE ME and subscribed in my presence this [8Mday of D-le,1994.
Md Notary Public
.RAR A DPfRO, AtSeney.
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,WA i
'k*aY PUBLic-STATE OF OHIO 16mes
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A Northeast Ohio Regional Sewer District i
i 3826 Eucud Avenue Cleveland, Ohio 44115 2504 216 881 6600 FAX:216 881 9t09 HAND DELIVERE BY E SSENGER AND CERTIFIED MAIL
{
RE11JRN RECEIPT RBQUESTED f
1 October 21, 1994 i
Advanced Medical Systems, Inc.
1020 London Road Cleveland, Chio 44110 ATIN: David Cesar Bear Mr. Cesar:
The Northeast Ohio Regional Sever District (" District") has been sampling and analyzin at 1020 London Road. g your wastewater discharge into the sanitary sewer
[
In addition to the radioactive material identified in t i
samples, a sample of Southerly filter cake (sludge) collected on September 22, 1994 contained 151 pCi/g of Cobalt-60.
SAWLE RESULTS FOR 1020 LONDON ROAD i
Dm Courre m4 Era ActmTr i
7/5/94 Ccbalt-60 29 pCi/L 8/17/94 Cobalt-60 33 pCi/L 9/16/94 Cobalt-60 0 pCi/L 9/20/94 Cobalt-60 0 pC1/L 9/22/94 Cobalt-60 9/28/94 0 pCi/L Cobalt-60 14 pC1/L 10/1/94 Cobalt-60 37 pCi/L 10/4/94 Cobalt-60 0 pCi/L 10/10/94 Cobalt-60 306 pC1/L the District has incurred significant costs and continues t
[
costs related to the existing contamination at the Southerly wastewater Treatment Plant and for monitoring for possible additional discharges such as catalogued above, despite the fact that such discharges are now prohibited by 10 CFR 20.2003.
I ATTAC1 DENT 1 effective conveyance and treattnent of wastewater. This is faimess and consistency that anticpates andresponds to the changing environmentaln
E Mr. David Cesar E
October 21, 1994 Page 2 l
4 4
l Pursuant to the authority of the District's Executive Director under the District's Code of Regulations (" Code") Section 1.0904, the j.
discharge free the Advanced Medical Systems facility at 1020 imdan Road has been determined to be unacceptable.
i In particular, the discharge i
contains material that is deleterious to the wastewater treatment system j
m as set forth in Code Section 1.0905(c) and causes the District to incur j
g excessive expense in the handling or treatment thereof as set forth in i
Code Section 1.0905(e).
i
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In accordance with Code Section 1.0906, the District will no longer i-t provide wastewater treatment services for the 1020 f= dan Road facility j
billing account number 01369851009.
In addition to being unacceptable under Code Section 1.0906, the j
discharge from 1020 Lordon Road appears to present a substantial danger i
to the environment or mer interfere with the operation of the PO!W.
As stated in Code Section 2.0604, the Emocutive Director any order an j
emergency suspension of service under such conditions.
You are therefore directed pursuant to Code Sections 1.0906 and l
2.0604, to esase all discharges o,f any type to any and all building drains and/or building sewers as such terms are defined in Code Sections 1.0204 and 1.0205.
This prohibition on discharge ~ includes sanitary flow l
and industrial process water, as well as the discharge of any 3
stormwater.
Stormwater discharges are tsinceeytable due to the possibility of Cobalt 60 contamination from t;te roof, stors drains and connecting sewer being carried to the public sewer by such stormwater.
You are required to com later than 5:00 p.m., Monday, ply with this Order in its entirety by no October 24, 1994. Failure to comply with i
this Order.by said time will result in such legal or physical acticas
}
deemed necessary or justified inder the circumstances, including but not limited to physical disconnection of the 1020 London Road facil:,ty from 4
l the District's system.
1 i
A copy.of Code Sections cited are enclosed.
I
- i Sincerely, i
J. Odoal i
Executive Director i.
l Enclosures j{
cc:
Sara J. Fagnilli Henry Billingsley, II 3
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.^
r NORTHEA:::ii OHIO
=
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y REGIONAL 3
SEWER DISTRIu s t
! I C.
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Title I
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Sewer Use Code T
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t l
i The Code of Regulat.'ons contains three Titles:
ll
- Sewer Use Code,
- Pretreatment Regulations, and
- Separate Sanitary Sewer Code.
This Title has been separately printed for distribution to those entities most affected by the regulations contained herein. The User is advised that the ot Titles may be applicable as well.
t
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r ADMINISTRATIVE OFRdES 3826 Euclid Avenue
- Cleveland. Ohio 441152504
- 8816600 WaterQualityandIrdtstrialSuneillann 8418000 l
w on e y
Prmese: January,1992 l
i k
i i
e QRP2ER 2 - DE1PINITIGIS 3
section 1.0201 l
Definitions - unless the content specificany inoicates otherwise, the meaning of the fonowing 3
terms wherever they are used in this Code shan be as defined in the fon owing sections.
i sectiori 1.0202
" Approving Authority" - shall mean the Executive i
Director of the portneast Ohio Regional sewer i
~
District or his designated representative.
section 1.0203 4
'900" (denoting Biochemical Orygon Demand) - shan m Te the giantity of oxygen utilized in biochemical E
oxidation of organic matter under standard laboratory F
procedure in five (5) days at 20c, expressed in c
minigrams per liter.
section 1.0204
' Building Drain * - shan mean that part of the lowest horizontal piping of a drainage system which receives the disdarge from soil waste pipes including sump pum,ps, roo,f drains, and otherand o similar connections, inside the umils of the building and conveys it to the building sewer beginning five (5) feet (1J meters) outside the interface of the in24 W5 section 1.0205
- suilding sewer * - shan mean the extensiim from the builcing crain to the pblic sewer or other place of 5
disposal.
Section 1.0206
$*-shallmeancentigradedegrees.
section 1.0207
- cco' denoting Chanical orygen Demand) - shan mean tWamo(unt of oxygen conamed from a semica under standard laboratory procedures expressed in minigrass per liter.
Section 1.0208
- Combined sewer * - shan mean a sewer designed to receive nota sanitary sewage and storm water runoff.
I Section 1.0209
" Control Manhole" - shan mean a structure that is I
accessiole for the prpose of maintaining a building samt.
A control manhole may be used as an inspection chamber.
Section 1.0210
" Cooling water" - shan mean the water dis & ar cooling, refrigeration, or other scuroes.ing, ge fec any system of condensation, air condition It shall contain no polluting substances Wids would produce 300 cc ss (suspended solids) each in excess of ten
[
parts per million by weight, or toxic substances as limited in this Code or other pouuting substances 3,
which may be limI Wd in this code.
I-2 navised 3/91
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!~F" section 1.09031 l
Inspection and sampling - 2he District may inspct the racility or any user in order to determine 4
}
compliance with the requirements of these replations. The dischargers shall allow the l
District or its representatives, without prior i
notice, upon presentation of credentials of i
identification, to enter upon the premises of the j
User at all hours for the purpose of inspection,
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sampling, or records exanination. Delays in permitting access to District personnel in excess of j
ten mirantes shall be considered a failure to amply with this Code for parposes of section 1.0923.
i j
r The F
District s1EIT have the right to set up on the User's i
property su s devices as are necessary to conduct sampling, inspetion, empliance monitoring, and/or metering operatices.
sue devices may include j
electronic telemetry of alarms and sensors.
section 1.0904 s
Acceptability or D :--d ahility of Discharge -
i Determination oy District - 2ne F.xecutive Director sna11 cetermine tne awahility or unacceptability of any dis &arge to the systen.
i sud a determination i
shall be made on.the basis of sound engi.neering and j
operational evaluations taking into consideration the i
nature and concentration of the discharge, its point of entry into the systen, its conqpatibility with l
other discarges in the.gstan, its amupatibility E
with the treatment facility receiving it, all applicable federal rep lations, and all other factors l
y pertinent to the effect of the discharge on any part j
[,
1 of the system or treatment process.
1 section 1.0905 l
Unacceptable Discharges - Unacceptable disearges
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shall ine n* enome waid have been determined by the Executive Director to:
c i
(a)
Contain materials or substances whie would
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constitute a hazard to life and limb of personnel engaged in inspection, maintenance, and operation of the systen.
1 i
(b) j Contain materials or substances whid are toxic as defined in section 1.0267 of this code.
!k (c)
Contain materials or substances which are in 1
1 any way deleterious to any part of the system.
i (d)
Contain concentrations of any tozic or deleterious materials or substances in excess of any limits set thereon in accordance with this Code.
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(e)
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Caise the District to incur excessive expense
(
in the handling or treatment thereof.
5 4
I-31 Devised 3/91 j
i.~
C
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E (f)
Be inecapatible with the treatment process or i
inhibit the performance of the treatment 1
process at a District treatment facility.
i (g)
De of such volume or contain such 300, suspended solids, or other material load which
{
i would cause the treatment facility to exceed I
its design capabilities.
i th) cause a treatment facility of the District to y
i g
fail to meet effluent requirements set by state j
and Federal rep latory agencies or cause such j
effluent to have a degrading effect on the g
receiving body of water.
I (i;
contain viable pathogenic organises in such wantiti,es as to be a hazard to pahlic health.
($)
Cause a treatment facility of the District to fail to meet effluent requirmeents as i
1 established under the District's IEW.8 Permit.
section 1.0906 Unacceptable Discharges - Refusal of service - 1he r.xecutive Director may refuse ene service of the District's facilities to any person whose disearge is determined by the Executive Director to be i
ur % i.able in accordance with the provisions of i
this chapter.
i 3
section 1.0907 Orwi.able Discharges - Pretreatment Mired -
l
['
ministrative order - Any User -Tes discharge Das Es noen esterminea oy the Executive Director to be j
unacceptable in accordance with the provisions of this chapter may be issued administirative orders to
. install and operate a pretreatment system designed to 1
l render said discharge acceptable. the Executive Director may issue orders to any industrial user to require compliance with any requirement under these Code of Regulations, including applicable categorical j
pretreatment stancards, other discharge limits, and reporting requirements.
- /,[
{
~
section 1.0908 Acceptable nothods of Pretreatment - Review by j
pistrict - noEtion or Pretreatment 2^ ^ -:~ - The
-- _=rility og a pretreatrer.i. metnoa for any given 4
i discharge and the tones for the installation and use j
i thereof shall be reviewed by the Executive Director.
i Sach a review shall be made on the basis of sound 4
engineering and operational evaluations taking into 4
consideration all factors pertinent to the effect of i
the discharge both before and after pretreatment on i
1-[E is found to be unacceptable then the ExecutiveIf the pretreatm any part of the systas.
~
Director may refuse service under section 1.0906, or may require additional information or design i
.l nodifications to make the pretreatment method i.
acceptable.
4'
.I -
I-32 nevised 3/91
j 1
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r, NORTHEASi OHIO
~
i E2==
REGIONAL J
l SEWER DISTRICi t
\\l 1
?.
!g 1..;.. Code of Regulations 3
i1 l
l I
i l
Title LI
~
Pretreatment Regulations 4
l c
J e
l The Code of Regulations contains three Titles:
i
- Sewer Use Code,
- Pretreatment Regulations, and i
- Separate Sanitary Sewer Code.
j This Title has been separately printed for distribution to those entities most affected by the regulations contained herein. The User is advised that the other j
Titles may be applicable as well.
J g
ADMINISTRATWE OFRCES i
{
3826 Euclid Avenue
- Cleveland, Ohio 441152504
- 8814600 g
WaterQualityandIndus01alSuneillance 6414000 j
a.nes en = pass now.
PrWec January,1992 1
___.__._____.______.___.______.._____q r
l
!*E l
l personal service or certified mail, return receipt requested, specifying the time and place of a hearing i
to be held by the Board of Trustees or its designated Bearing Examiner regarding the violation, the reasons j'
thy the enforemment action is to be taken, the proposed enforomeent action, and directing the disdarger to j
show cause before the Board of Trustees or its designated Bearing Exmeiner why the proposed enforemment action abould not he taken. the notice of I
the hearing shall be served no less than seven calendar days before the hearing. servi,ne any be made on any i
agent, officer or autorized representative of a discharger or to the Macharger's giW1 place of 1.
{
business or to the facility at this the norumpunntw
)
occurred. The proceedings at the hearing shall be in.
j accordance with section 1.0302 and 1.0303 of Title I of this code of megulations, and the determination by the i
BoartN~1Estees snau ne made in the menner prescribed in that section.
Section 2.0604 I
Emergency
- Pion of servim - The Ezecutive I
Director may zor fri G cause snown suspend the westeweter treatment service of a disd arger when it appears to the District that an actual or threatened i
dis &arge presents or may present an isminant or substantial danger to the health or welfare of substantial danger to the envirossient, may in= persons, M-le with the operation of the P01W, or may violate arg j
N Mearge limits imposed by Title I or Title If of the i
F code of nequistions.
Ary dis &arger notified of the l
L suspe Eicn or tne District's westeunter treatment - '
i service shall cease all dis &arges. In the event of failure of the dis &arger to ocup3y with the suspension order within the specified time, the District shall take all actions necessary, including tut not limited to $adicial proceedings, to compel the discharger's ocupliance with sud order. 1he discharger shall be responsible for all casts associated with said action.
The District shall reinstate the unststater treatment service upon receipt of proof of the elimination of the noncomplying disdarge or conditions creating the threat of 4=iama* or substantial danger as set forth
- above, section 2.0505 Judicial reoceedings - Followint; the final appeal to tne District permitted under primoduzes for Administrative detensinations of Section 5.1 of the code, the General Counsel G the IMtr.ict may, Y31 Towing the authori2stion of such action by the District, comennae an action for appropriate legni and/or equitable relief in the appropriate local court.
Section 2.0606 Enforcement Actions - Annual Publication - At least annuauy, the Executive Director shan guhlish a list of all industrial users whie at any time during the previous twelve months were in significant non-ocupliance with applicable pretreatment requirements.
i i
II-26 Revised 3/91
.E SAMPLE RESULTS FROM AMS LATERAL
,E DATE TOTAL CO-60*
SUSPENDED CO-60 DISSOLVED CO-60 08 17 94 33.6 i
l 09-22-94 09-28-94 13.8 10 01-M 86.6 62.8 10 04-94 10-10-94 306 166 65.6 10-16-94 121 164 10-19-94 365 103 10-22 94 234 61.5 10 24-94 77.4 94.6 l
10-25-94 142 10-26-94 248 148 10-27-94 195 10-28-94 522 10-29-94 78.9 241 10-30-94 50.6 210 10-31-94 2's5 11 01-94 378 142 11-02-94 21.8 11-03-94 40.1 11 04-94 36.4 46.1 11-05-94 34.0 23.3 11 06-94 11 07-94 8.4 11 08-94 14.2 11 09-94 13.6 11-10-94 12.2 11-14-94 17.5 11-17-94 59.9 11-18-94 1,173
[
11-21-94 55.6
- Units are picoeuries per liter
- Result was below detection limit ATDGMENT 2
4 9
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IN THE COURT OF COMMON PLEAS
{
CUYAHOGA COUNTY, OHIO i
l
{
NORTHEAST OHIO REGIONAL
)
l SEWER DISTRICT
)
)
CASE NO. 249860
)
{
g Plaintiff,
)
JUDGE STUART A. FRIEDMAN j
l
)
i
)
v.
)
g.
)
AFFIDAVIT OF ADVANCED MEDICAL SYSTEMS, INC.
)
RICHARD N. CONNELLY gg
)
)
l Defendants.
)
I, Richard N. Connelly, on behalf of plaintiff, Northeast Ohio Regional i
Sewer District ("NEORSD"), and in support plaintiffs Mohon for a Temporary Restraining Order and Mobon for a Preliminary injunction, state the following:
1.
I am the Manager of Water Quality & Industrial Surveillance for NEORSD, which entails enforcing the NEORSD Code of Regulations and Federal protreatment regulations.
2.
Since 1980, Advanced Medical Systems, Inc. ("AMS") has discharged
(
Cobalt-60 into the NEORSD sewer system as a result of its teletherapy and radiography sources fabrication process and other related actrvities.
EKHIBIT C
~
s 3
k 3.
A lateral sewer runs from the AMS building and connects directly to 4
the NEORSD London Road interceptor. Discharges to the London Road Interceptor 1
I are transported by gravity flow to the NEORSD's Easterly Wastewater Treatment Ple.t_
4.
At Easterly, solids are removed from the wastewater and pumped 3
through a force main to Sot'therly, where the solids from Easterly are treated, concentrated and then incinerated.
5.
The ash from the incineration process is pumped, in the form of a slurry, from the incinerator to three ash lagoons located as the southem and of the Southerly property. Penodic removal of ash from these lagoons is necessary to allow for the continuing operation of the incinerators.
6.
The ash that has been removed from these lagoons has been deposited at various locations on the sex,erty property.
7.
Between July 5,1994 and October 10,1994, NEORSD monitored,
~
sampled and analyzed wastewater discharge from the London Road Facility into the sanitary sewer. Of the nine samples taken, five showed levels of Cobalt-60 in the wattrAwater.
8.
A sample of Southerty Filter Cake (sludge) collected on September 22,1994 contained 151 pCi/g (picoCuries per gram) of Cobalt 40.
9.
Accordingly, on October 21.1994, I hand delivered to AMS a civil
-(
cease-and-desist order direchng AMS to " cease all discharges of any type to any and all building drains and/or building sewers" by 5 p.m. on Monday, October 24,1994.
(A copy of the Order is attached hereto as Attachment 1).
~
i u
10.
On October 26 and 27,1994, maintenance of the composite sampler installed at the discharge point of the AMS lateral sewer revealed wastewater in the composite sampler, confirming that AMS has had a discharge from its lateral sewer 4
i into the District's sewer past 5:00 p.m. on October 25,1994.
~
l FURTHER AFFIANT SAYETH NAUGHT v a A k fo w OD-Rk:hard N. Co'nneY SWORN TO BEFORE ME and subscribed in my presence this May of October, 1.
k//
E M/ ewe.a#71 AW ' Public
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Northeast Ohio Regional Sewer District i
I 3826 Euclid Avenue
- Cleveland, Ohio 44115-2504 216
- 881
- 6600 FAX:216
- 881
- 9709 l
HAND IELIVERED BY MISSENG5t 3
AND CERTIFIED MAIL RImRN RBCEIPT REQUESTED i
l l
Ortober 21, 1994 l
l Advanced Medical Systems, Inc.
1020 London Road j
Cleveland, Gaio 44110 i
i i
ATIN: David Cesar I
j
Dear Mr. Cesar:
g 1he Northeast Oldo Regional Sewer District (" District") has been l
sampling and analyzing your wastewater discharge into the sanitary sewer at 1020 London Road.
i The results of these efforts are set forth below,
(-
In addition to the radioactive material identified in these effluent i
samples, a sample of Southerly filter cake (sludge) collected on l
September 22,1994 contained 151 pCi/g of Cobalt 40.
i SA>FLE RESULTS FOR 1020 LONDON ROAD DATE COLIJiCTED PAlWMr!1R ACTIVITY 4
7/5/94 Cobalt-60 29 pC1/L 1
8/17/94 Cobalt 40 33 pCi/L I
9/16/94 Cobalt-60 0 pCi/L 9/20/94 Cobalt 40 0 pCi/L 9/22/94 Cobalt-60 0 pCi/L 9/28/94 Cobalt-60 14 pCi/L a
l 10/1/94 Cobalt-60 87 pC1/L 10/4/94 Cobalt 40 0'pci/L 10/10/94 Cobalt-60 306 pC1/L 3
As the result of prior dischargen, cf Cobalt-60 from this facility, the District has incurred significant costs and continues to incur such f
costs related to the existing contamination at the Southerly Wastewater E,
Treatment Plant and for monitoring for possible additional discharges such as catalogued above, despite the fact that such discharges are now 3
prohibited by 10 CPR 20.2003.
l ATTACEMENT 1 The inesskn ot the Northeast Ohio RegionalSewer Districtis so enhance putac health and weHare ttwough me efficient. cost-u etfactive corweyance and treattnent of wastewater. This is accortphshed by an organization dedicated 20 professional stn.
I fairness and consistency that anticomtes atut responds 80 the changing envirotwnentalneeds of me corntnuruty.
d
i Mr. David Cesas i
3 October 21, 1994 l
Pqe2 i
i Pursuant to the authority of the District's Executive Director ader the District's Code of Regulatims (" Code") Section 1.0904, the l'
discharge from the Advanced Medical System facility at 1020 Iminn Road i
L has been detemined to be macceptable. In particular, the discharge i
contains material that is deleterious to the wastewater treatment system j
as set forth in Code Section 1.0905(c) and causes the District to incur i
excessive expense in the hamtling or treatment thereof as set forth in CodeSection1.0905(e).
i Si In accordance with Code Section 1.0906, the District will no longer i
i provide wastewater treatment services for the 1020 imlan Road facility i
illling acco at n eber
~
01369851009.
i i
In addition to being unacceptable under Code Section 1.0906, the discharge from 1020 London Road appears to present a substantial danger to the environment or any interfere with the operation of the Ptml. As i
1 I
stated in Code Section 2.0604, the Emscutive Director any order an emergency suspension of service under such conditions, i
(
You are therefore directed, pursuant to Code Secti1ns 1.0906 and 1
1 2.0604 to cease all discharges of any type to any and all building drains,and/or building sewers as such terms are defined in Code Sections i
1.0204 and 1.0205. His prohibition on discharge includes sanitary flow i
i E
and industrial process water, as well as the discharge of my storm ater. Stormater discharges are macce possibility of Cobalt-60 contasunation from t'ptable due to the w roof, stom drains and connecting sewer being carried to the public newer by such stormwater.
j You are required to com later than 5:00 p.m., Monday, ply with this Order in its entirety by no i
r-October 24, 1994. Failure to comply with l
this order by said time will result in such legal or physical actions i
{
deemed necessary or justified under the circumstances, including but not limited to physical disconnection of the 1020 London Road facility from i
the District's system.
\\
A copy of Code Sections cited are enclosed.
Sinc.r.ir, 3
J. Odoal l
Esecutive Director
(
Enclosures i
cc:
Sara J. Fagnilli
(
Henry Billingsley, II k
l 1
3 i
b
1 i
o l
t i
o r
7 NORTHEAST OHIO suggs l
4 munusesnap y
REGIONAL i
J l
t t
SEWER DISTRICi 4
lt l
G-
,c.er lF a.i/.iCode of Regulations
(.9A d. d.i!.i-* 4r
- i'
- w
- j Title I t
Sewer Use Code i
,E j
(
!.{*
j c-i I
The Code of Reguistions contains three Titles:
- Sewer Use Code,
- Pretreatment Regulations, and
- Separate Sanitary Sewer Code.
This Title has been separately printed for distribution to those entities rnost affected by the regulations contained herein. The User is advised that the other
{
Titles may be applicable as well.
1 r
ADMINISTRATIVE OFRCES 3
{
3826 Euclid Avenue
- Cleveland, Ohio 441152504
- 8814600 g
water Quality and Irutustnet suneillance - s410000 y
=.
en.a:;.nuary, toe 2
i se-I CEhPER 2 - DIFINITICats section 1.0201 j
Definitions - unless the content specificany incicates otherwise, the meaning of the fonowing terms wherever they are used in this Code shall be as defined in the fonowing sections.
I l
L section 1.0202
' Approving Authorit? - shah mean the Executive Director og the por :neast Ohio Regional sewer District or his designated representative.
section 1.0203 "FJP (denoting Biochemical oxygen Demand) - shan i
din the quantity of oxygen utilized in biosamical oxidation of organic matter under standard laboratory 4
procedure in five (5) days at 200c, expressed in minigrams per liter.
I l
Section 1.0204
- auilding Drain" - shan mean that part of the lowest horizontal piping of a drainage system whis receives the dis &arge from soil, waste and other drainage i
pipes including sump paga, roo,f drains, and other similar connections, inside the walls of the building i
and conveys it to the building sewer beginning five i
(5) feet (1J meters) outside the interface of the f
building.
Section 1.0205
- suilding sever" - shan mean the extensiim from the
'g builaing crain to the guhlic sewer or other place of disposal.
i section 1.0206
- C' - shan mean centigrade degrees.
Section 1.0207
- COD' (denoting Chenical oxygen Demand) - shan mean r
tWamount of oxygen consumed from a cnemical oxidant l
under standard laboratory procedures expressed in minigrams per liter.
i section 1.0208
- Combined sewer * - shan mean a sewer designed to receive Doth sanitary sewage and storm water runoff.
f section 1.0209
" Control Manhole' - shan mean a structure that is i
accessinie for the purpose of maintaining a building sewer. A control manhole may be used as an inspection chamber, section 1.0210
- Cooling Water" - shan mean the water dis &arge free any system of condensation, air conditioning, F
opoling, refrigeration, or other sources. It shan
-E
.contain no polluting substances which would produce 300 or as (suspended solids) ead in excess of ten parts ser million by weight, or toxic substances as I
limited in this Code or other poHuting substances whis may be limTEd in this Code.
I-2 Revised 3/91
. -. - - - -. -.. - - - -. _. ~. _ -. -. _ - - - - _ _ - -
i su i
a Section 1.09031 Inspection and senpling - the District may inspect i
the reculty of any user in order to determine compliance with the requirements of these
{
regulations. The dis eargers shall allow the District or its representatives, without prior
(
b, notice, upon presentation of credentials of 4%4fication, to enter tipon the premises of the i
User at all hours for the purpose of inspection, j.
sampling, or records exseination. Delay? in permitting access to District. personnel an excess of ten minutes shall be considered a tailure to comply with this Code for purposes of section 1.0923. the l
District slim have the right to set up on the User's l
property sue devices as are necessaiy to conduct i
sampling, inspection, compliance monitoring, and/or r
metering operations, sue devices may include
{
electronic telemetry of stamm and sensors.
section 1.0904 Acceptability or W=bility of Disdurge -
j Determination ny District - 2ne F.xecutive Director anau cet==ta= ene =~*p*=M11ty or unacceptability of any dis &arge to the systas. Such a detsemination l
shall be made on the basis of sound engineering and i
operational evaluations taking into consideration the 4
nature and concentration of the disearge, its point of entry into the systas, its compatibility with i
I other disearges in the system, its compatibility i
with the treatment facility receiving it, all l
applicable federal reg 11ations, and all other factors i
y pertinent to the effect of the dis &arge on any part L
of the system or treatment process.
1, Section 1.0905 l
I 0;m wable Discharges - Unscceptable disearges 1
I anau in @ m tnose uni d have been detersined by the Executive Director to:
(a)
Contain materials or substances whie would
{
constitute a hasard to life and limb of personnel engaged in inspetion, maintenance, and operation of the system.
(b)
Contain materials or substances whid are tonic i
i as defined in section 1.0267 of this Code, (c)
Contain materials or substances which are in 4
any way deleterious to any part of the system.
' f'
.(d )
Contain concentrations of any tonic or deleterious materials or sutstances in excess of any limits set thereon in accordance with this Code.
(e) cause the District to incur excessive expense (l
l in the handling or treatment thereof.
I l
1-31 sevised 3/91
i.-
O (f) te inecapatible with the treatment process or
{
j inhibit the performance of the treatment process at a District treatment facility.
(g)
Be of such volume or contain sud 300, j
suspended solids, or other material load whid would cause the treatment facility to exceed I
its design capabilities.
4 4
(h) cause a treatment facility of the District to ag fail to meet effluent requirements set by state
{
and Federal regulatory agencies or cause su e effluent to have a degrading effect on the I
E receiving body of unter.
i 1
(1) contain viabla p @ + 7 M c organisms in such gaantities as to be a bazard to pablic health.
1 i
{
{
(j) cause a treatmer,t facility of the District to fail to meet effluent regiirements as established under the District's Wats permit.
section 1.0906 Drmeable Di=*rges - Refusal of service - the i
Executive Director may reruse ene service og the j
District's facilities to any person whose dise arge j
is determined by the Exeastive Director.to be unacceptable in accordance with the provisions of l
this **:*er.
IE section 1.0907 Unacceptable Discharges - Pretreatment Esiired -
y
.=Mistrative oroer - Any User wnose m=~rge nas i
[,
coen ceterminee my the Executive Director to be
}
ur==Me in accordance with the provisions of i
this empter may be issued administrative orders to install and operate a pretreatment system designed to e
i i
render said dis 2 arge acceptable. The Executive Director may issue orders to any industrial user to i
require ccupliance with any requirement under these i
code of Regulations, including applicable categorical j
pretrEtnant stansards, other disdarge limits, and reporting requirements.
section 1.0908 Acceptable Methods of Pretreatment - Review by i
District - newct. ace or Pretreatment ;^arl+3 - The ii acceptanility og a pretroaci.r4 metnoo ror any given disearge and the terms for the installation and use i
i j
thereof shall be reviewed by the Executive Director, i
sus a review shall be made on the basis of sound engineering and operational evaluations taking into j
consideration all factors pertinent to the effect of 1
the disdarge both before and after pretreatment on f
any part of the system. If the pretreatment system L
is found to be unacceptable then the Executive i
Director may refuse service under section 1.0906, or may' require additional information or design
{
t modifications to make the pretreatment method accepeable.
2 I-32 morised 3/91
- .k i).-
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~
, NORTHEA:::s i OHIO r
ii a====
l' g
REGIONAL j
t SEWER DISTRICi lt
';g r
1.
Code of Regulations.
c.. ;
t i
r i
Title II
~
Pretreatment Regulations iz l
A f
r l
The Code of Regulations contains three Titles:
!{
- Sewer Use Code,
- Pretreatment Regulations, and l
- separate sanitary sewer code.
4 This Title has been separately prir?>.d for distribution to those entities most
<j affected by the regulations contained herein. The User is advised that the other Titles rnay be applicable as well.
4
!L
{
r ADMINISTRATWE OFFCES j
3 3826 Euclid Avenue o Cleveland, Ohio 441152504
- SRL8800 1
l WaterQualityandIndustrialSunelliance 6414000 g
y iI
= = = a==.
Pnrnea: January.1992
j
.lh b:'o I
personal service or certified mail, return receipt i.
i8 regnested, specifying the time and place of a hearing i'
to be held by the Board of Trustees or its designated il Bearing araminer regarding the violation, the reasons l
ey the enforcament action is to be taken, the proposed enforcement action, and directing the disdarger to show cause before the Board of Trustees or its j
desipated Bearing Examiner why the proposed enforcament action should not be tahan. D e notice of the hearing shall be served no less than seven miendar days before the hearing. service any be made on any agent, officer or authorized representative of a 1
disdarger or to the dim *arger's pr4=-45 place of business or to the facility at istid the m'ia==
! [)
occurred. S e proceedings at the hearing shall be in l
accordance with section 1.0302 and 1.0303 of Title I of this Code of Regulations, and the determination by the i
no M S stees sna u ne made in the manner j
prescribed in that section.
l1 section 2.0604 Emergency suspension of service - Se Essettive Director any for goce cause snown suspend the i
westeunter treatment service of a diammeger when it appears to the District that an actual or threatened l
i dis &arge gesents or may present an iminare or substantial danger to the health or welfare of persons, substantial danger to the envirnamare, may interfere with the operation of the pont, or may violate agr E
disearge limits imposed by Title I or Title It of the 4
Code of mequistions. Any disdarger notified of the y
suspEico of tne District's tastewater treatment I
g,'
service shall cease all discharges. In the event of
~
failure of the dis &arger to ocupAy with the maspension order within the specified time, the District shall
- {
take all actions necessary, including but not limited to Wa1 gramadings, to compel the disdarger's compliance with such otder. S e dis &arger shall be i
responsible for all costs associated with said action.
Se District shall reinstate the wastewater treatment service upon receipt of p oof of the elimination of the nonecuplying diaAarge or conditions creating the j
l threat of imminent or substantial danger as set forth above.
I
! ll section 2.0605 Judicial Prc-::Minam - Following the final appeal to the District permitted under procedures for Administrative determinations of section 5.1 of the l
Code the General Counsel of the District may,
(
151To, wing the authorization of sud action by the l
l District, consance an action for appropriate legal and/or equitable relief in the approrciate local court.
i f iE section 2.0606 Enforossent Actions - Annual Publicatioc - At least maa"=u y, the Executive Director anan publish a list of all industrial usere innkh at any time during the i
,I previous twelve acr.ths were in aigtficant non-l cumpliance with applicable getreatment requirements.
L i
II-26 novised 341 l
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.ED M
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IN THE UNITED STATES DISTRICT COURT i
NORTHERN DISTRICT OF OHIO j
EASTERN DIVISION i
1 STATE OF OHIO r
{
AFFIDAVIT COUNTY OF CUYAHOGA
.L e
Now comes Sara J. Fagnilli, first being duly sworn si-:-:-:a and states as follows:
i
- 1. Affiant is an attorney licensed to practice law in the State of Ohio, admitted to practice before the U.S. District Court for the Northern District of Ohio and represents j
plaintiff, Northeast Ohio Regional Sewer District; and
{
- 2. 'Ibe original affidavits of Erwin J. Odeal, Executive Director of the NEORSD 1
i and Richard N. Connelly, Manager of Water Quality & Industrial Surveillance, dated j
October 27,1994, were filed in the case styled Northemet Ohio Reelonal Scwcr District v.
I i
Advanrad Medical Svetema. Inc.. et al., Case No. 249860, filed in the Court of Common Pless, Cuyahoga County, Ohio. A true and accurate copy of each of those affulavits is
- .t m*tached to Plaintiff's Motion for Temporary Restraining Order.
i j -
FURTHER AFFIANT SAYETH NAUGHT j
^g
-)
SgJ. Fa i
{
SWORN TO BEFORE ME and subscribed in my presence this /.idI(day of December.1994.
Adukk (b'
f, Notary ic A. DP20. Attmasy
[y M,$8y fg3 W a h surropomo EXHIBIT D sti d
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f IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO NORTHEAST OHIO REGIONAL
)
(,
SEWER DISTRICT
)
CASE NO. 249860
)
g Plaintiff,
)
JUDGE STUART A. FRIEDMAN
)
v.
)
1
(
)
ADVANCED MENCAL SYSTEMS, INC.,
)
TEMPORARY t
i i
g 3L
)
RESTRAINING ORDER
)
Defendants.
)
l This cause came on for hearing on the 28th day of October,1994, before the Honorable Stuart A. Friedman, upon motion of Plaintiff for a Temporary 3
Restraining Order restraining Defendant Advanced Medical Systems, Inc., each of the
(
other defendants herein, and their agents (c="+f;;.'i " Defendants"), from certain conduct and activity, pending further hearing on Plaintiffs Application for a Preliminary injunction.
l Upon consideration, the Court finds that Defendants were given notice of Plaintiffs intention to move for a Temporary Restraining Order, through its counsel, I
and further finds Plaintiffs Motion for a Temporary Restraining Order is well-taken i
because it clearly appears Plaintiffs Code of Regulations will be volated contrary to i
Ohio law before Defendants can be fully heard in this matter unless a Temporary Restraining Order issues.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED, that until November 29,1994:
.i EXRIBIT E
i.
j
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(1)
[
Defendants and their agents are enjoined and restrained from discharging any water, wastewater or stormwater runoff from j
Defendants' 1020 London Road Facility into the public sewer r
.P i
system; j
(2)' Defendants are ordered to implement allemative method (s) to i
j collect and dispose of the dischstges enjoined by this Order. Said method (s) must be in place and able to receive the discharge by or
{
i before 5:00 p.m. on November 18,1994. Defendants shall i
immediately certify to this Court (with copy to Plaintiff) that such 3
1 method (s) have been implemented; (3)
Plaintiff is hereby permitted to install a temporary compression-type plug in the 1020 London Road lateral sewer near its connection with the London Road interceptor immediately after Defendants have implemented the altamative disposal method (s) described in the preceding paragraph; i
(4)
Defendant Advanced Medical Systems, Inc. is ordered to allow i
Plaintiff, Northeast Ohio Regional Sewer Distnct, to conduct a full inspection (s) of defendant's facility (pursuant to all applicable Nuclear Regulatory Commission regulations) on or before November 28,1994, to ensure that all discharges from the 1020 5
London Road facility are addressed by the sk=-desenbod actions.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, this Temporary Restraining Order shall become effective without the filing of a bond, as plaintiff is a pohtical subdivision not required to post a bond under law.
IT IS FURTHER ORDERED, ADJUDGED ANi1 DECREED, that the Clerk of this Court shall deirver sufficient certified copies of this Temporary Restraining 4
Order to Counsel for Plaintiff who, for purposes of servmg this Temporary Restraining Order, is appointed by this Court to make sonnce upon Defendants and their counsel.
L IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that service of I
this Order be made as soon as possible.
-[
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Dated: /3-MM/
JUDGE STUART A. FRIEDMAN
'ECEiVED FOR FILING
. NOV 1594 (bMM
!iR IN THE COURT OF COMMON PLEAS i
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(
CUYAHOGA COUNTY, OHIO I
i i
NORTHEAST OHIO REGIONAL
)
SEWER DISTRICT
-)
CASE NO. 249860
)
j
)
i Plaintiff,
)
JUDGE STUART A. FRIEDMAN l
)
I j {
v.
)
)
i ADVANCED MEDICAL SYSTEMS, INC.,
)
! f dd
)
,I
)
QBDER Defendants.
)
)
i Upon consideration of plaintiff's Motion For Extension Of Temporary Restraining Order, it is hereby ORDERED, ADJUDGED AND DECREED, that the Temporary i
Restraining Order entered herein on November 15,1994 shall remain in effect l
through and including December 13,1994, unless otherwise ordered by this Court.
s i
I Date: At Afurm6er#ff
=-
JUDGE STUABPM. tMIEDMAN
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j CUYAHOGA COUNTY, OHIO I
NORTHEASTOHIO REGIONAL SEWER'DISTRICI CASE NO. 269860 Plaintiff (s) i l(
MEMORANDUM OFOPINION vs.
AND ORDER 1
y ADVANCED MEDICAL SYSTEMS, j
FRIEDMAN,J:
}
In this action plaintiff claims that a building owned and/or maintained by 4
defendants is the source ofillegal discharges of radioactive cobalt-60 into the sewers operated by plaintiff. Plaintiff further alleges that the disposal and release of such h
radioactive substances into the sewer system (1) subjects defendants to strict liabil resulting from ultrahazanlous activity, (2) constitutes negligence which proximately causes property damage and economic harm to plaintiff, (3)is a private nuisance injuring plaintiff specifically, (4) constitutes a " trespass or an invasion of NEORSrs interests", and (5) evidences a conscious disregard for the rights and safety of plaintiff such as to give rise to both compensatory and punitive damages. Plaintiff further (6) t seeks formation of a monitoring fund.
Before the Court at this time is the Motion of defendant AMS to dismiss the Complaint for failure to state a claim upon which relief may be granted, pursuant to Ohio Civil Rule 12(b)(6). (The remaining defendants have piggy-backed upon the AMS
[
motion; hence, the motions will be considered as one for the purpose of this Opinion.)
I 1
I EEIBIT F
r i
E j.
Defendants assert that plaintiffs claims are all common-law causes of a l
Ohio law, and that they have been supplanted by a single Federal caus
.P the Price-Anderson Amendments Act,42 U. S. C 62014, et seg.
Initially the Court must address the plaintiffs assertion that the defendant motion to dismiss is untimely. Ohio Civil Rule 12(B) permits a defense of" fail f
state a claim upon which relief can be granted" to be made by motion such motion "shall be made before pleading if a further pleading is permitt no such motion was made prior to defendants' Answer, a motion pursuant to R 12(B)(6) would appear to be barred. Rule 12(H), however, further allows a failure to state a claim to be made "...in any pleading permitted or order i
7(A), or by motion forjudgment on the pleadings, or at the trial on the merits."
Inasmuch as no other pleadings are contemplated (Ohio Civil Ru
{
are presumed to be closed; accordingly, defendants' motion may be considered i
as a motion forjudgment on the pleadings.
As defendant states, plaintiffs claims state a "public liability actio P
assert "...any legal liability arising out of or resulting from a nuclear incident...
U. S. C 62014(w). A " nuclear incident" is defined, at 42 U. S. C 62014(q)
.L any occurrence, including an extraoniinary nuclear occurrence, within the United States causing... bodily injury, sickness, disease, or death, or l damage to property or loss of use of property, arising out of or result the radioactive, toxic, explosive, or other hazardous properties of sou g~
nuclear, or byproduct material.
It is clear that any complaint asserting public liability under that definition
{
"shall be deemed an action arising under the Price-Anderson Act." O' Conner v.
2
j.-
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!J Cormanonnesith Edison Co.,13 F. 3d 1090,1096 (7th Cir.,1994), cert. den.114 S. Ct. 2711 j
- 4 (1994). The Court went on:
1
{
Thus, a state cause of action is not merely transferred to federal court; instead, a new federal cause of action supplants the prior state cause of i
action.
j j
~
The Amendments Act creates a federal cause of action which did i
not exist prior to the Act, establishes a federal jurisdiction for that cause of
[f action, and channels all legal liability to the federal courts through that i
cause of action.... Thus, Congress clearly intended to supplant all j,
possible state causes of action when the factual prerequisite [ sic] of the i
statute are met.
j To similar effect the Third Circuit has held that:
i 4
i Under the terms of the Amendments Act, the 'public liability
{
action' encompasses 'any legal liability' of any ' person who may be liable' on account of a nuclear incident. 42 U. S. C. O 2014 (hh). Given the i
breadth of this definition, the consequence of a determination that a particular plaintiff has failed to state a public liability claim potentially lO compensable under the Price-Anderson Actis that he has no such claim at 1
all. * *
- i g.
Congress then provided, in the Amendments Act, the clearest j
expression ofintent that there be a federal cause of action arising directly i
j under the Act.... Where Congress creates a right of action, and j
formulates substantive federal provisions applicable to that action, the j
action arises under federal law despite the fact that the same wrong may previously have been actionable under state law.... Here, the right to j
control the safety aspects of nuclear power is [ sic) exclusively federal In ye TMI Cases Consolidated II,940 F. 2d 832,854 857.
4 Both the specific wording of the Price-Anderson Amendments Act and i
the case law construing it make it abundantly clear that not only accidents arising from the generation of nuclear power, but all actions involving liability i
from any nuclear incident of any kind are to lie within the exclusive province of iE i
the Act. As has been noted, plaintiff alleges that it has sustained certain property 1
J I
3 1
i
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- ,a l
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j damage and h-7wd economic irqury as a result of the alleged discharge by defendangs of radioactive cobalt 60 into its sewer system. Thus, the Court is led a
j inescapably to conclude that all causes of action plaintiff has setforth are supplante i l the Price-Anderson Amendments Act,42 U. S. C. 82014, et seq., and that plaintiff j
accordingly has failed to state any claims upon which relief may be granted.
Defendant AMS suggests in its Reply Brief that, as an alternative to dismissal t
under Civil Rule 12(B)(6), the Court grant the plaintiff leave to amend its Complaint in i
1 order to state a cognizable claim under the Act. Further review by the Court
- Juss, 9
l however, that this is not an appropriate option. Having determined that the plaintiff has failed to state a claim, the Court must dismiss this action. Plusarmer v. Home (1993, i
i Stark Co. Ct. App.) 83 Ohio App. 3d 392.
2 ITIS SO ORDERED.
I E
g 3,
Judge Stuart A. Friedman i
Dated: D==h-r12,1994 l
4' SERVICE j
Copies of the foregoing Memorandum of Opmion and Order were hand-j delivered to all counsel of record this 12th day of Dac==har,1994.
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)
Judge Stuart A. Friedman i
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IN THE UNITED STATES DISTRICT COURT j
NORTHERN DISTRICT OF OHIO EASTERN DIVISION NORTHEAST OHIO REGIONAL
)
i SEWER DISTRICT i
)
CASE NO.
)
l Plaintiff,
)
JUDGE i
i
)
v.
)
)
l ADVANCED MEDICAL SYSTEMS, INC.,
)
TEMPORARY st al.
)
RESTRAINING ORDER
)
j3 Defendants.
)
{
This cause came on for hearing and was heard on the day of December,1994, before the Honorable
, upon motion of Plaintiff for a Temporary Restraining Order restraining Defendant Advanced Medical Systems, Inc., each of the othe I
defendants herein,8 and their agents, employees and those persons acting in concert or association with them (collectively " Defendants"), from certain conduct and activity, p further hearing on Plaintiff's Motion for a Temporary Restraining Order and Application fo a Preliminary Indunction.
8 In addition to Advanced Medical Systems, Inc., the defM=*= herein are ATC Group, y
[
Inc., Advanced Technology Corporation, Seymour S. Stein, Ph.D., P.E. & Associates, Inc.,
S.,um. S. Stein, Indid'.mily, AMS International Sales Corp., ATC Group, ATC Betatmn Corp., Universal Motor lamp Corp., Advanced Medical Systems, Inc. of Florida, Automated Developrnent Corp., ATC Automated Development Corp., ATC Medical Technology, Lucille Stein, Individually, Eight Factory Row Cea=ay, ATC Medicai Group, ATC Nymold Corp.
~
and ATC Automation Development Corp.
_. _ _ _ _. _ _ _ - _. _ _. _. _ ~ _ _ _ _
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Upon consideration, the Court finds that Defendants were given notice of Plaintiff'
)
intentinn to move for a Temporary Restraining Order, through its coumel, and furthe Plaintiff's Motion for a Temporary Restraining Order is well-taken hacanne it c F
i Plaintiff's Code of Regulations will be violated cos y to Ohio law and Plaintiff will suffer l
immediate and L.w.i.ble inimy before Defendant < can be fully heant in this matter unles g
Tu e,s.iy R-.is.Lg Order issues.
x i
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NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED, that until 3
- f
,1994 or such shorter time as is necessary for the Court to hold a hearing on Plaintiff's Application for a Preun ry fa' =ctiaa:
a i
l (1) Defendants, their agents and all other persons acting in concert or i
l association with them are eqjoined and restrained from disc.harging ang water, wastewater or stormwater runoff from Defendants' 1020 London
[
Road Facility into the public sewer system; 0}
i (2) Defendants are ordered to implement alternative methods of collection into 1{
tanks and disposal of the discharges eqjoined by this Order so as to
}
preclude the possibility of said discharges escaping into the public sewer system. Said methods must be in place and able to receive the discharge l
by or before p.m. on
,1994. Defendanta shall i
immadintely certify to this Court that such methods have been installed
{
and implemented and describe in detail the exact nature of those methods.
i Copies of this certification, description of methodology, and reports of any modifications thereto shall be served upon Plaintiff's counsel; I
(3) Plaintiffis hereby permitted to maintain plugs in the public sewers at or near the connections of the 1020 landon Road facility with the London Road laterceptor;
>i 4
(4) Defendant Advanced Medical Systems, Inc. is ordered to allow Plaintiff, j
Northeast Ohio Regional Sewer District, to conduct a fu!I inspection (s) of Defendant's facility on
,1994 to ensure that all discharges i
from the 1020 London Road facility are addressed by the above-described i
actions. Said inspection shall include all areas of the facility and Plaintiff i y shall be permitted to conduct its inspection with methods of its own
! [,
discretion, including the use of videotape, still photography, diagramming and the taking of samples.
4 f
', ;l 1
e P
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, this Temper =y Restraining Order shall become effective without the filing of a bond.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the Clerk of this Court shall deliver sufficient certified copies of this Temporary Restraining Order to Counsel
(
for Plaintiff who, for purposes of serving this Temporary Restraining Order, is appointed by y
this Court to make service upon Defendants and their counsel.
IT IS FUR 11IER ORDERED, ADJUDGED AND DECREED, that service of this Order be made as soon as possible.
Dated:
JUDGE E
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4
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t IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION i
NORTHEAST OHIO REGIONAL
)
CASE NO.1:94 CV 2555 SEWER DISTRICT,
)
)
JUDGE GEORGE W. WHITE Plaintiff,
)
)
)
v.
)
PLAINTIFF'S BRIEF ON TIIE
)
ISSUE OF FEDERAL ADVANCED MEDICAL SYSTEMS,
)
PREEMPTION IN FURTHER INC., et al.,
)
SUPPORT OF ITS MOTION FOR
)
INJUNCTIVE RELIEF Defendants.
)
)
INTRODUCTION On December 13, 1994, Plaintiff Northeast Ohio Regional Sewer District
("NEORSD" or " District") filed its Complaint and moved this Coun for an injunction prohibiting the discharge of any wastewater from defendant Advanced Medical System, Inc.'s
("AMS") 1020 Iondon Road Facility into the public sewer system. The basis of the District's Motion is AMS' admitted inability to prevent the discharge of radioactive Cobalt-60 with its wastewater, and the resultant negative impact these discharges have had and will have on the District's ability to carry out its wastewater treatment functions. It is demonstrated in the Brief in Support of NEORSD's Motion for Temporary Restraining Order I
O k
I o j
("TRO Brief") that the District's Code of Regulations (" Code") empowers the District to l
suspend the wastewater treatment service of a discharger when a " threatened or actual discharge... may interfere with the operation of the" publicly-owned treatment works 1
i
("POTW"). (TRO Brief at pp. 7-10).
At the conference held with this Court on December 13, 1994, at which time this Court agreed to grant part of the District's requested injunctive relief, Defendants' principle argument against imposition of the TRO was that AMS' uncontrolled discharges of Cobalt-60 were within the levels of radioactive discharge permitted under federal regulations developed by the Nuclear Regulatory Commission ("NRC"), and thra the federal regulations preempt enforcement of the District's Code. (See Transcript of December 13,1994 Conference, o pp. 6,.7,28 and 32, attached as Ex. A hereto.). In other words, Defendants contend that l
they may discharge any amount of Cobalt-60 -- even to a level which interferes with the processes of the District's treatment plants - provided the discharges are within levels approved under NRC regulations.
Neither logic nor the law supports this position. It will be demonstrated below that l
i the federal regulations, designed to protect the public from radiological safety hazards, do not preempt enforcement of the District's Code, which was invoked against AMS to protect o
o the integrity of its wastewater treatment facilities. Thus, because it is not attempting to regulate in the area of health and echty, the District is empowered under its Code to refuse oto accept a discharge of Cobtjt-60 in any amount. Because the federal regulations relied upon by defendants do not pruent any legal impediment to the issuance of injunctive relief, this Court's issuance of the TRO was proper, and the District's request for a Preliminary Injunction (filed with this Court on January 4,1994) also should be granted.
f
, i
o O
SUMMARY
OF A RGUMENT It is well settled that total preemption of state authority by federal law can result only through an express statement of Congress or a scheme of federal regulation so all-1
- encompassing as to make reasonable an inference that Congress intended to supplant state authority.' In addition, even if Congress does not intend to occupy a given field, state law will be preempted to the extent that it conflicts with federal law.2 Thus, in order for
- )
l Defendants' position to succeed, they must show that Congress has vested in the NRC complete authority over the use and disposal of radioactive material, or that the state law imposed upon Defendants conflicts with NRC regulations. Defendants cannot demonstrate either point.
Courts have consistently held that preemption applies only to areas that the regulator -
has specifically and explicitly identified as preempt ed. As it relates to the instant dispute, the i
NRC itself has pronounced that the authority to replate radioactive material for purposes other than health and safety is notpreempted by feleral regulations.' The injury suffered by a
the District in this case is not related to health and safety issues, but instead is injury to its ability to protect its treatment processes so as to be able to perform its statutory duty to treat wastewater, its ability to use its property as it neec ; or desires, and its ability to protect its ratepayers from excessive and wholly preventable user charges.
See Pacepc Gas & Electric Co. v. Energy Resources Comm., 461 U.S.190, 203-204 (1983) (and cases cited therein).
2 Id.
See discussion infra at pp.12-14.
l t.
i 1
Moreover, the cease-and-desist orded issued to AMS by the District on October 24,
- 1994, in which AMS was ordered to cease all discharges into the public sewer system, L
simply does not. conflict with any federal mandate. Giver. this, the District's order to AMS l
l to cease its discharge is both authorized by law and enforceable by this Court. Thus, the l
doctrine of federal preemption does not bar enforcement of tre District's order.
Defendants' claim that their reckless and harmful actions are protected by the NRC is simply false. Defendants' purported compliance with NRC regulations does not suffice as a f
basis for blocking the District's authority.5 Furthermore, the District will show that AMS is 6
not, in fact, in compliance with NRC regulations.
Because the District's authority to order appropriate and necessary measures to protect its operations is not preempted by NRC regulations governing the handling of radioactive material,' the District's order to AMS to cease its discharge of cortaminated wastewater into i
the District's interceptor is both lawful and enforceable. Likewise, this Court's issuance of the TRO was proper. The District therefore respectfully requests that this Court maintain the TRO and issue the Preliminary Injunction as requisted by the District.
ARGUM12K I.
THE DISTRICT'S CEASE-AND-DESIS'.' ORDER TO AMS IS NOT PREEMITED BY FEDERAL LAW A.
States May Regulate the Discharge of Nuclear Materials Based on Non-Safety Related Concerns l-State law is preempted under the Supremacy Clause of the U.S. Constitution only if
- (1) Congress evidences an intent to occupy a given field, or (2) it is impossible to comply
- A copy of the cease-and-desist order is attached as Ex. A, Attachment 1, to Plaintiff's Motion for Temporary Restraining Order.
5 See discussion infra at pp.14-18.
m
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i with both state and federal law, or (3) the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. Silkwood v. Kerr-McGee
]
Corp., 464 U.S. 238, 248 (1984), None of these circun: stances are present in this dispute.
First, when Congress enacted the Atomic Energy Act,42 U.S.C. f 2014 et seq.
("AEA") (pursuant to which the NRC adopted the regulations upon which Defendants rely j.
for their preemption argument), it made clear that:
l Nothing in this section shall be construed to affect the authority l
of any State or local agency to regulate activities for purposes j
other than pwtection against radiation hazards.
42 U.S.C. f 2021(i) (emphasis added). It followed, then, that when the Supreme Coun had i
l before it the issue of the scope of federal regulation of nuclear material, it held that:
i Congress, in passing the 1954 [ Atomic Energy] Act and in subsequently amending it, intended that the Federal Government l
should regulate the nufiological sqfety aspects involved in the construction and operation of a nuclear plant, but that the States retain their traditional responsibility [ies]....
}
Pacipe Gas & Electric Co. v. Energy Resources Comm., 461 U.S.190, 205 (1983)
(emphasis added).
NEORSD's request for injunctive relief is not based on the " radiological safety l
aspects" of Cobalt-60 (which are governed by federal law), but rather on the deleterious 1
effect of AMS' Cobalt-60 on NEORSD's ability to continue to process and treat wastewater i
(which is not governed by the AEA). Thus, this Court's enforcement of the District's Code 1
is not preempted by federal law. See, e.g., Pacife Gas, 461 U.S. at 223 (state regulation of nuclear power prompted by economic, not safety, concerns is not preempted by federal law).
i k
1 5-
Funher, because Congress did not explicitly state otherwise,6 it can be presuraed that it did not intend that the AEA govern here. Pacife Gas, 461 at 206 ("[W]e start with the assumption that the historic police powers of the States were not to be superseded by 'the i
Federal Act unless that was the clear and manifest purpose of Congress."). Thus, under the l
's AEA, a sewer district seeking to ensure the continuation of wastewater treatment for its 1
ratepayers, to assure that the use of its facilities will not be restricted, and to protect those ratepayers from multi-million dollar nuclear remediation and disposal costs cannot be deemed to be interfering in the federal government's regulation of " radiological safety."
This conclusion is further supported by recent pronouncements of the United States Supreme Court which have narrowed the scope of federal preemption in cases having much more to do with nuclear safety than does the District's request for injunction relief. For example, in Silkwood,464 U.S. 238 (1984), it was held that state-imposed punitive damage awards for radiation related ton damages were not preempted by the federal occupation of a the radiological safety field. The United States Supreme Coun held that " Congress did not believe that it was inconsistent to vest the NRC with exclusive regulatory. authority over the safety aspects of nuclear development while at the same time allowing plaintiffs like Silkwood to recover for injuries caused by nuclear hazards." Id. at 257. The United States Supreme Coun further explained that "[ playing both federal fines and state-imposed punitive damages for the same incident would not appear to be physically impossible. Nor does [it]
fmstrate any purpose of the federal remedial scheme." Id. at 256. See also, English v.
J The NRC's own regulations expressly recognize that its laws do not preempt the entire 6
field of regulation of nuclear materials: "Nothing in this subpart relieves the licensee from l
complying with other applicable Federal, State and local regulations governing any other toxic j
or hazardous propenies of materials that may be disposed of under this subpan." 10 C.F.R.
i 20.2007 (Subpan K-Waste Disposal) (attached as Ex. D hereto).
General Electric Co., 496 U.S. 72 (1990) (state-law claim against nuclear industry employer for intentional infliction of emotional distress on former employee who reponed safety violations held not preempted by federal law); Goodyear Atomic Corp. v. Miller,486 U.S.
174 (1988) (Ohio's increased workers' compensation award for injury caused by safety violation at a nuclear facility held to be acceptable " incidental regulatory pressure" and not 4
preempted by federal occupation of nuclear safety regulation).
It is apparent that the NEORSD regulations pursuant to which it issued the cease-and-
'?
desist order and requested the TRO are much farther removed from " radiological safety
- concerns than were the state laws in the foregoing cases -- cases in which it was held nonetheless that federal preemption did not exist. Thus, the TRO was properly granted and the requested Preliminary Injunction should issue.
B.
The NRC Does Not Have Exclusive Regulatory Authority Over Off-Site Radiological Imnacts j
In the state court action which preceded this case, AMS relied on Train v. Colorado Public Interest Research Group, Inc., 426 U.S.1 (1976), arguing that the injunctive relief sought by' the District in that coun was preemp ed by federal law. According to AMS, the
[
holding in Train implies that Congress so thorc aghly occupies the radioactive material field as to eliminate any room for states and local entities to protect wastewater treatment works.
Hrmever, as recognized in the state coun' and as should be clear here, AMS' reliance on Train is misplaced.
7 The state court (Stuan Friedman, J.) rejected AMS' preemption argument aul issued a TRO in favor of the District. Subsequently, that state court dismissed the District's action on o
unrelated grounds (i.e., the Price-Anderson Act pleading requirements and scope of state court jurisdiction thereunder), prompting the filing of this case. (A copy of Judge Friedman's Order of Dismissal is attached as Ex. B hereto).
i
The Train court affirmed the United States Environmental Protection Agency's ("U.S.
EPA's") decision not to subject three types of radioactive material to its federal water pollution pennit sys, tem, but the unanimous Court added:
.It does not follow, however, that the EPA has no role to play in protecting the environment from excessive radiation attributable to AEA-regulated materials.... Among the functions transferred to the EPA [in 1970] were:
The functions of the Atomic Energy Commission under the e
Atomic Energy Act of 1954, as amended..... [that] consist of establishing generally applicable envinnmental standards for the protection of the general environment from radioactive material... outside the boundaries oflocations und:r the contml ofpersons possessing or using radioactive materict."
426 U.S. at 25 n. 20 (citing Reorganization Plan No. 3 of 1970, f 2(a)(6) 84 stat. 2088, 5 U.S.C. App. p. 610 (establishing the functions of the new U.S. EPA)) (emphasis added).
Contrary to AMS' interpretation of Train, the Supreme Court explained that the NRC has relinquished its authority over the field of of f-site radiologicalimpacts, which is directly applicable to the present circumstances. The NRC does not have exclusive regulatory authority ever off-site radiological impacts. Instead, however, U.S. EPA has express authority to implement environmental standards which in effect regulate certain off-site a?//{
o radiological impacts. See 14. U.S. EPA has del: gated the enforcement of these generally 2:',
applicable standards to the various states, including Ohio. See 40 C.F.R. Part 403. In turn, c as explained in the District's Brief in Support of the TRO (p. 7), the State of Ohio has delegated authority to the NEORSD to make and enforce regulations necessary to prohibit
]
discharges detrimental to its treatment plant, which in this case have caused off-site
}
radiological impacts. See id. See also April 30,1985 Ohio EPA letter to NEORSD o(attached as Ex. C hereto). (This delegated pretreatment authority is independent of
/ -
i
- ;C.
b
- NEORSD's authority under Ohio Rev. Code f 6119, which is a separate avenue of enforcement authority herein.).
1 l
The sole purpose of the injunctive relief sought by the District is to enforce a o
genemlly applicable envinnmental standard to protect the wastewater treatment works which are entirely outside the boundaries of any location under the control of NRC licensees (i.e., AMS' landon Road Facility). After 1970, the Atomic Energy Commission (now the 1
l
' NRC) relinquished exclusive authority over off-site impacts (if, indeed, such authority ever did exist), and thus cannot preempt NEORSD's action on the basis that it occupies the field of off-site radiological impacts.
In light of the NRC's relinquishment of authority over off-site impacts, any contir, sed reliance by AMS on cases that address only site-specific, on-site regulation of radiological safety is clearly misple.ced and should be disregarded.s The District is asserting a generally-applicable prohibition on interference with its off-site treatment works. Clearly, prohibition on the discharge of materials is not aimed at regulating on-site activities at the 1020 London Road Facility but, instead, is aimed at regulating deleterious, off-site impacts.
The distinction between the regulation of on-site activities and the regulation of off-site impacts is essential to understanding the District's enforcement efforts.
- The cases include Brown v. Kerr-McGee Chemical Corp.,767 F.2d 1234 (7th Cir.19S5),
cert. denied,475 U.S.1066 (1986) (addressing NRC's approval of site-specific, on-site disposal
. decisions) Northern States Power Company v. State ofMinnesota, 447 F.2d 1143 (1971) aff'd mem., 405 U.S.1035 (1972) (addressing site specific permit requirements including on-site monitoring); Hanni v. Cleveland Electric Illuminating Co., 87 Ohio App.3d 295, 303 (1993)
(addressing employee discharge regulations at nuclear power plant sites); U.S. v. City of New York, 463 F.Supp. 604 (S.D.N.Y.1978) (addressing city health and safety cenification prerequisite to on-site operation o' a nuclear reactor).
i 1
l l
C.
The Prohibition of Sewer Use Dv es Not Conflict With Congressional Purnoses or NRC Reenla*Iaas Finally, although it is true that state regulation may be preempted if it is impossible to comply with both state and federal law or if the state law stands as an obstacle to the accomplishment of a Congressional purpose, these " exceptions" do not apply here. AMS is 6 fully capable of complying with both federal law and the District's cease-and-desist order.
1 First, contrary to'the misleading statements made by AMS' counsel during the l
December 13,1994 conference held with this Court (see Transcript, p. 6, Ex. A), as a matter of law the NRC does not mandate discharge of licensed radioactive material into the i
sanitary sewer system. Rather, NRC regulations include six d((ferent options for disposal of l
the material:
(1) transfer to an authorized recipient (10 C.F.R. Il 20.2001 and 20.2006);
(2) decay in storage (10 C.F.R. I 20.2601);
(3) release in effluents other than discharge to sanitary sewers (10 C.F.R.
{ 20.1301);
(4) treatment or disposal by incineration (10 C.F.R. I 20.2004);
(5) disposal by release into sanitary sewerage (10 C.F.R. I 20.2003);
-(6) any other method of disposal approved by the Commission (10 C.F.R.
{ 20.2002).
(A copy of 10 C.F.R. Il 20.2001-20.2007 is attached as Ex. D). Despite these broad
. alternatives, AMS claims that the option to dispose soluble radioactive waste into the sanitary l
sewer (an option that does not exist for insoluble Cobalt-60, see infra pp.15-17) requires it to transfer its disposal problem and all the associated costs to the District under a cloak of federal preemption.
l l
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,)
' Clearly, as a matter of law, AMS does not have to discharge its Cobalt-60 to the District's sewers to maintain compliance with NRC regulations as it claims. Moreover, the 2
NRC does not require a POTW to accept nuclear material. Thus, the District's preclusion of radioactive discharge into the sanitary sewer does not conflict with the permissive - but not i
. mandatory -- NRC regulation. See Silkwood,464 U.S. at 257 (finding no preemption where complying with both federal and state laws was not " physically impossible").
In sum, the NRC does not claim federal preemption over the District's refusal to j.
accept radioactive materials to protect the treatment works operated for the citizens of i
Northeast Ohio. This cannot be disputed, especially because AMS has other disposal options. Cf. Jersey Central Power & Light v. Zocey Twp., 772 F.2d 1103 (3rd Cir.1985),
cen. denied, 475 U.S.1013 (1986) (township's total prohibition on transport and storage of nuclear materials left no options and was thus $reempted).
Second, not only is AMS not required i a dispose of its Cobalt-60 down the District's c
e sewers, it is prohibited from doing so. NRC legulations at 10 C.F.R. 20.2003 only allow j
the discharge of licensed material into sanitary sewerage if the material is readily soluble in water or is readily dispersible biological mater al. A November 7,1994 NRC report of an i
2 inspection of AMS' London Road Facility stati s that "the Cobalt-60 used at the London Road Facility by both Picker Corp and AMS was in a metallic form and was not water i
soluble." Nuclear Regulatory Commission Report No. 030-16055/93003(DRSS)
(November 7,1994) ("NRC Report") at 7 (attached as Ex. E hereto). In addition, the RC explicitly states: "[B]eginning January 1,1994, the Cobalt-60 used at the London Road 4
Facility could no longer be discharged into the sanitary sewer system...." Id.
4 4
c-i The Chief of NRC's Nuclear Materials Safety Branch confirmed this conclusion in a o
November 7,1994 Memorandum: " Currently, AMS... is not authorized to dispose of Cobalt-60 via the sanitary sewer." (See Ex. F attached hereto).* Thus, injunctive relief 1
- preventing AMS' discharge into the sanitary sewer cannot conflict with or stand as an j
obstacle to the NRC's federal regulatory authority as would be necessary to preempt the District's ability to seek relief in this Coun. See Silkwood v. Kerr-McGee Corp.,464 U.S.
238, 257 (1984) (finding no preemption when federal and state laws can be consistently l
applied).
+
The District's purpose in requesting injunctive relief is to protect the integrity of its treatment works as required by state and federal law-a purpose distinct from the preempted field of radiological safety. The effect of this protection is merely to force AMS to pursue a
another disposal option -- a result entirely consistent with NRC's regulations and the Atomic Energy Act. See English v. General Electric Co., 4% U.S. 72 (1989) (finding no federal l
preemption where state action has no direct and st bstantial effect on radiological safety i
l o decisions). Any Congressional purpose served by discharging radioactive waste products into i
j the sanitary sewer is countered by U.S. EPA's ckar interest in facilitating the unfettered E,
- working of this State's sanitary sewer systems. E:cause there is no direct conflict in these j
purposes, U.S. EPA's and Ohio's interests should control here. Thus, the District's issuance of its cease-and-desist order is not pr:empted by federal law, and is enforceable. Likewise, this Court's issuance of the TRO was proper.
}
i
' For funher discussion see infra pp.15-17.
}
It must be noted that the NRC has indicated that the compression plugs that are the 8"
i subject of the instant TRO should remain in place. Counsel for AMS concedes this at page 24 o f the transcript of the December 13,1994 hearing before this Coun. (See Ex. A). Thus, as o
to the paniculars of the instant action, the NRC has indicated that no actual conflict exists I
h D.
The NRC Has Clearly Stated that Its Regulations Do Not Preempt Governmental Action on Bases Other than Protection of Public Ilealth and Safety The NRC itself has determined that the preemption argument advanced here by'AMS is, simply, wrong. In recent official correspondence to governmental entities, the NRC has expressly stated that POTWs have the authority to prohibit the discharge of radioactive material into their sewer systems if the prohibition imposed is not related to health and safety. For example, in a November 9,1993 response to a series of questions posed by the o
United States General Accounting Office ("GAO"), the NRC Deputy General Counsel for Licensing and Regulation stated:
OUESTION 6.
What authority, if any, do the POTWs have to refuse to allow NRC licensees to make disposals of radioactive materials into their systems? Please explain.
ANSWER A recent letter to the city attorney for Laramie, Wyoming, discusses the issue raised in this question. _... As the letter explains, a POTW may under certain circumstances refuse to anow dsposals of radioactive materials into the treatment system.
(Ex. G attached hereto; emphasis added). In the referenced letter, dated November 9,1993, to H.B. McFadden, City Attorney, Laramie, Wyoming, the NRC Deputy General Counsel stated:
If... the basis for the state or local governmental action is '
something other than the protection of workers and public from the health and safety hazards of regulated materials, the action is not preempted. See, e.g. Pacific Gas and Electric Co. v.
State Energy Resources Conservation and Development Commission,461 U.S.190 (1983).
between the District's actions and its own goals.
(Ex. H attached hereto; emphasis added).
1 Finally, in a June 16,1994 letter, the Director of the NRC Office of Nuclear Materials Safety and Safeguards confirmed this position to William B. Schatz, General Counsel for NEORSD:
[T]he Commission has expressed its view that the Atomic Energy Act af 1954 does not prohibit actions by state or local authority on bases other than protection ofpublic health and sqfetyfrom radsological hazards.
(Ex. I attached hereto; emphasis added).
A clearer statement of regulatory intent cannot be imagined. If a governmental entity takes action against an NRC licensee en any basis other than the protection of public health and safety, such action is not preempted. This case falls squarely into the fact pattern under i
-which the NRC has detennined that federal preemption does not arise. The District has alleged injury to its ability to operate its POTW, to dispose of its sludge and ash, and to
, utilize its property as it sees fit." The District has additionally alleged potential injury to its ratepayers if continued radioactive contamination requires the expenditure of costs which must be passed on to the ratepayers in the form of excessive user charges. AMS' discharge has and will continue to interfere with these interests. This case does not involve an action to regulate radiological health and safety issues that would be preempted by NRC regulations.
i i
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i
" Plaintiff's TRO Brief at pp.13-14.
=
?
II.
Because NEORSD Regulations are Not Preempted, the District Can Refuse to Accept any Amount of Cobalt 60 from AMS, Even if that Amount Is Below Discharge Levels Authorized Under NRC Regulations. In Fact, However, AMS' I
Discharees Do Not Comply with NRC Regn!ations Because enforcement of the District's Code is not preempted by federal law, the
~ District may -- and does -- refuse to accept any amount of Cobalt-60 into the public sewer g/
. system it operates. Thus, AMS' compliance or non-compliance with NRC regulations
@ p}. sy Qj governing the disposal of Cobalt-60 by release into sanitary sewer systems i c
.3
[
District's right to obtain the injunctive relief to enforce its Code, as authorized by Ohio Rev.
Code { 6119.08.i2 Even if this issue were relevant, however, AMS would not benefit because its Cobalt-60 discharges are not in compliance with the NRC regulation.
j As of January 1,1994, an NRC licensee is authorized to dischey'8 radioactive material into sanitary sewerage only if it is "readily soluble (or is readily disper::ible biological material) in water."" 10 C.F.R. I 2(0. AMS' discha.ge of Cobalt-60 is 4
- neither, The NRC does not believe that AMS' nr terial complies with its discharge e
regulations. In a 1993 response to the District's petition to require AMS to provide adequate 12 See Silkwood v. Kerr-McGee Corp.,485 F.Supp. 566,577 (N.D. Okla.1979) ("Had this o
Court instructed the jury that substantial compliance with governmental regulations would bar an award of actual damages in the area of nuclear power, the Court would have paved a new 4
road in jurispmdence that heretofore has not existed in any other comparable area of law.").
" Defendants implied during the December 13,1994 conference that the Cobalt-60 in its wastewater does not constitute a " discharge" since the facility is purportedly not actively i
releasing Cobalt-60 into the sewer. (See Transcript of December 13,1994 Conference, pp. 6-7, 16, and 20, Ex. A). Defendants claim the Cobalt-60 is " flaking off" the lateral sewer pipe.
Federal regulations,10 C.F.R. f 20.20C( ), only authorize " discharges" into sanitary sewerage; if AMS' Cobalt-60 is entering sanitary sewerage by another means, it is not authorized by 10 C.F.R. f 20.2003.
" Prior to January 1,1994, licensees were authorized to discharge radioactive material that was "readily soluble or dispersible in water." 10 C.F.R. I 20.303. (Ex. J attached hereto).
financial assurance to cover public liability resulting from its discharge of radioactive material, the Director of the NRC Office of Nuclear Materials Safety and Safeguards stated that: "[T]he revision of 10 C.F.R. Part 20 no longer permits non-biological, dispersible material, such as the Cobalt-# used at AMS, to be disposed into the sanitary sewer ""
(See Ex. I; emphasis added). More recently, in a November 7,1994 Memorandum, the Chief of the NRC Nuclear Materials Safety Branch confirmed this conclusion: ' "[c]urrently, AMS... is not authorized to dispose of Cobalt-60 via the sanitary sewer." (See Ex. F at 4).
In addition, in prepared testimony before the, enate Committee on Governmental e
Affairs and the House Subcommittee on Environment, Energy and Natural Resources, NRC Chairman Ivan Selin stated:
NEORSD's Southerly Plant District (Region III) Subsequent to the discovery of Cobalt-60 contamination at the NEORSD, Region III attempted to identify the licensed facilities in the j
NEORSD which may have contributed to the Cobalt-60 contamination. A file search was < onducted of all licensed facilities witn zip codes in the NEORSD service area (these zip i
codes were provided by the NEORSD). In addition, Region III contacted the Department of Energ / (DOE) to determine if any of their activities in the Cleveland netropolitan area involved the use of unsealed Cobalt-60.
t f
" In the preamble to the final rule that established tne prohibition on nonbiological insoluble material discharges into sanitary sewerage, the NRC acknowledges that the basis for the prohibition is the very basis for the District's action in'this case:
The disposal of nonbiological insoluble materials is no longer permitted because of potential reconcentration of these materials in the sanitary sewer system, sewage treatment plants, and sewage sludge.
56 Fed. Reg. 23360 at 23381. (Ex. K attached hereto).
j
< i
4
\\ >
As a result of the review of available information on terminated as well as active NRC licenses and the information provided by DOE, Region III determined that only onefacility was authonzedfor and disposed of the quantitles of unsealed Cobalt-60 which could have significantly contributed to the activity found at the NEORSD's Southetty Plant. This facility is located at 1020 London Road, Cleveland, Ohio, and was l
operated by Picker Corporation from the mid-1950's to late 1979 and is currently operated by Advanced Medical Systems, inC.
Presently, the London Road facility is prohibited by regulation
.o (revised 10 C.F.R. Part 20) to discharge nutioactive material into the sanitary sewage system. TM licensee does not currently generate nor do they plan to generate liquid radioactive waste.
(Ex. L Appendix C at 10; emphasis added). The Cobalt-60 discharged by AMS is neither soluble nor readily dispersible biological material. Therefore, AMS cannot now release Cobalt-60 into the sanitary sewer, and injunctive relief should be maintained preventing it from doing so. 6 Moreover, in addition to requiring discharges of Cobalt-60 to be "readily soluble,"
the regulation also requires that the radioactive material discharge not exceed an established, measured quantity." AMS discharges of Cobalt-60 into the District's sewers did exceed their reported quantities, and may have exceeded the regulatory set quantity. For instance, NRC investigators uncovered improper " sanitary sewer discharge procedures" by AMS,
- including past failures to " evaluate and record, in all instances, the quantity of liquid
" The District does not concede that AMS' discharge was in compliance before the recent change in regulations, but that is not relevant to the current issue.
" As noted above, the issue of compliance with the quantity restrictions is irrelevant to the issue of non-health and safety-based actions. Even if AMS' compliance was relevant, however, AMS'. discharge would have to comply with both the characteristic and quantity testrictions in the regulation, as evidenced by the use of the word "and" in between subpr.ra (a)(1) and (a)(2) of 10 C.F.R. I 20.2003 to be lawful. (See Ex. D).
_ - ~
I i
i radwaste discharged into the sanitary sewer system." NRC Repon at 2 (Ex. E). The NRC concluded that "the quantity of Cobalt-60 reponed to have been released to the sanitary i
sewer system could have been significantly undmstimated."" Id. at 24 (Ex. E) (emphasis added).
This is particularly troublesome now. AMS has represented that the Cobalt-60 in its wastewater is the result of residual radioactivity from prior contamination of the AMS lateral j
i sewer, as opposed to a recent " active" release of Cobalt-60 by AMS. If this is true -- which the District by no means concedes -- then AMS can have no idea how much Cobalt-60 will i
enter the public sewer system should injunctive relief Le terminated. Not only is this a frightening prospect, it is also an additional, independent violation of NRC reguleions, which require a licensee to measure the quantity of the radioactive material it discharges into sanitary sewerage (10 C.F.R. I 20.2003(2),(4)).
AMS apparently is claiming that its violation of NRC standards gives it preemptive license to also violate state and local prohibitions on interfering with the District's wastewater treatment facilities. This turns the preemption doctrine on its head and should not be indulged by this Coun.
" Moreover, the potential for discharges of Cobalt-60 contaminated water persists whether or not AMS is actively using the landon Road Facility, since there is contaminated water presently in storage at the facility:
"Potentially higher activity Cobalt-60 wastewater housed in the WHUTs (waste holdup tanks) was reponedly not released since early 1986,' and continues to be stored in these tanks."
NRC Repon at 12 (Ex. E). In addition, the basement of the lendon Road Facility continues to present a risk of Cobalt-60 discharge during flooding despite AMS' alleged plugging of drains.- NRC Repon,at 23 (Ex. E).
f 1
CONCLUSION The District's authority to issue a cease-and-desist order pursuant to its state law-authorized Code is clear, and the Code does not conflict with federal regulations. Simply stated, if a local action is not preempted by federal law, and is otherwise authorized, it is enforceable. Thus, the District's cease-and-desist order that AMS cease its wastewater discharge and injunctive relief enforcing that order is not preempted by federal law.
Respectfully submitted, l
WILLIAM B. SCHATZ (0016467)
General Counsel Y-k.fJ:4 [ w k Lpt n SARA J. FAGNILLI (002#53) 4 A.4 _)
LAWRENCE K. ENGLISH (0042718)
/7 Assi tant General Couasel Non seast Ohio Regional Sewer District 382( Euclid Avenue Cleveland, Ohio 44115 (21 6 881-6600 l
0 /b.
FRANK A. DIPIERO (0008312)7 LISA E. HOLLANDER (0032755)
VALERIE M. FLADUNG (0055561)
Squire, Sanders & Dempsey 4900 Society Center I
127 Public Square Cleveland, Ohio 44114 (216) 479-8500 Attorneys for Plaintiff NORTHEAST OHIO REGIONAL SEWER DISTRICT i
/
o t
CERTIFICATE OF SERVICE Copies of the foregoing Plaintiff's Brief on the Issue of Federal Preemption In Funher Support of its Motion for Injunctive Relief were sent by regular U.S. Mail to Dwight A.
Miller, Esq., Stavole & Miller,1604 Illuminating Building, Cleveland, Ohio 44113; and to Henry E. Billingsley, II, Esq., Arter & Hadden,925 Euclid Avenue, Suite 1100, Cleveland, i
Ohio 44115-1475 this 4th day of January,1995.
I A _ VA. h x One of the Attorneys for Plaintiff f i
(
e N,...
' 4 (
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION NORTHEAST OHIO REGIONAL
)
CASE NO.1:94 CV 2555 SEWER DISTRICT,
)
)
JUDGE GEORGE W. WHITE Plaintiff,
)
)
v.
)
ADVANCED MEDICAL SYSTEMS,
)
PLAINTIFF'S b BON -
INC., et al.,
)
FOR PRELIMINARY
)
INJUNCTION Defendants.
)
)
Plaintiff Northeast Ohio Regional Sewer District ("NEORSD") moves this Court, pursuant to Rule 65 of the Federal Rules of Civil Procedure, for a preliminary injunction or other equitable decree that, pending a full trial on the merits, prohibits and enjoins defendant Advanced Medical Systems, Inc. and its agents, employees or attorneys and those persons acting in concert or association with it ("AMS"), from discharging any water, wastewater, or stormwater runoff, by any means, into the public sewer system at 1020 London Road, Cleveland, Cuyahoga County, Ohio; that AMS be ordered to implement and maintain alternative method (s) for collection into tanks and disposal of the discharges so enjoined so as to preclude the possibility of said discharges escaping into the public sewer system; that AMS be ordered to report to this Court regarding the method (s) it shall use to collect and f
I dispose of the discharges seenjoined and certify that such method (s) have been installed and
implemented; that AMS be ordered to permit Plaintiff to conduct a full inspection (s) of Defendants' facility; and that Plaintiff be permitted to maintain the existing temporary plugs in the 1020 london Road lateral sewer near its connection with the London Road Interceptor.
Plaintiff's entitlement to a preliminary injunction is more fully set fonh in the Brief in Suppon of Temporary Restraining Order (filed with this Court on December 13,1994),
incorporated by reference herein, and supponing affidavits filed therewith. Additional suppon is provided in Plaintiff's Brief on the Issue of Federal Preemption in Funher Suppon of Its Motion for Injunctive Relief, filed with this Court on January 4,1995. A proposed Preliminary Injunction is attached for the Court's convenience.
Respectfully submitted, WILLIAM B. SCHATZ (0016467)
General Counsel
.5
- 2., /
Y.-
- k. f J J ~f n LLL_
FRANK A. DIPIERO (0000df2)
SARA J. FAGNILLI (429753) '
< A,.9)
~
LISA E. HOLLANDER (0032755)
LAWRENCE K. ENGLISH (0042718)
VALERIE M. FLADUNG (0055561)
Assistant General Counsel Squire, Sanders & Dempsey Northeast Ohio Regional Sewer District 4900 Society Center 3826 Euclid Avenue 127 Public Square Cleveland, Ohio 44115 Cleveland, Ohio 44114 (216) 881-6600 (216) 479-8500 Attorneys for Plaintiff NORTHEAST OHIO REGIONAL SEWER DISTRICT l.-
m._.
f IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION NORTHEAST OHIO REGIONAL
)
CASE NO.1:94 CV 2555 SEWER DISTRICT-
)
)
JUDGE GEORGE W. WHITE Plaintiff,
)
)
v.
)
)
ADVANCED MEDICAL SYSTEMS,
)
PRELIMINARY INJUNCTION INC., et al.
)
)
Defendants.
)
This cause came on for hearing on the day of January,1995, before the Honorable George W. White upon Plaintiff's Application for a Preliminary Injunction. Upon consideration of the evidence and submissions of the parties and argument presented at the hearing, Plaintiff's Application for Preliminary Injunction is granted.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED, that until the Court has rendered its decision on the merits, Defendant Advanced Medical Systems, Inc.
("AMS") is enjoined and restrained as follows:
(1)
Defendant AMS and its agents, employees or attorneys and those persons acting in concert or association with AMS are enjoined and restrained from discharging any water, wastewater or stormwater runoff from Defendants' 1020 landon Road Facility into the public sewer system;
- _. _ _ _ _ ~. -..-_ -
i' c
l
'o 1
j (2)
Defendant AMS is ordered to implement and maintain alternative method (s) for collection into tanks and i
disposal of the discharges enjoined by this Order so as to preclude the possibility of said discharges escaping into the public sewer system. Defendant AMS shall j
unmediately certify to this Court that such method (s) t have been installed and implemented, with said.
cenification to include a detailed description of the methods in place to collect and dispose of the l
discharges. If Defendant AMS modifies said methods in any respect, the Coun shall be notified of said i
modification (s). Copies of this certification, description of' methodology, and modification repons shall be served upon Plaintiff's counsel; (3)
Plaintiff is hereby permitted to keep in place plugs in the 1020 Iondon Road lateral sewer near the connections.with the London Road Interceptor; 4
(4)
Defendant AMS is ordered to allow Plaintiff, Northeast Ohio Regional Sewer District, to conduct periodic, full inspection (s) of AMS' facility (pursuant to all applicable Nuclear Regulatory Commission regulations) until funher order of this Coun, to ensure that all discharges from the 1020 Iendon Road facility are addressed by the above-described actions.
Dated:
JUDGE GEORGE W. WHITE i
i
o
)
CERTIFICATE OF SERVICE Copies of the foregoing Plaintiff's Application for Preliminary Injunction were sent by regular U.S. Mail to Dwight A. Miller, Esq., Stavole & Miller,1604 Illuminating Building, Cleveland, Ohio 44113; and to Henry E. Billingsley, II, Esq'. Arter & Hadden,925 Euclid Avenue, Suite 1100, Cleveland, Ohio 44115-1475, Attorneys for Defendants, this f day 4
of January,1995.
i 0 Y.S i- /
1 One of the Attorneys for Plaintiff 6 1
4 d -
-