ML20137B097

Forwards Complaints Re Carborundum Co & Comm Ed Cases.Util Case Concerns J O'Connor Nonspecific Injuries Allegedly Resulting from Radiation Exposures at Plant

ML20137B097
Person / Time
Site:	Quad Cities
Issue date:	11/15/1985
From:	Harward J AMERICAN NUCLEAR INSURERS
To:	Saltzman J NRC OFFICE OF STATE PROGRAMS (OSP)
References
NUDOCS 8511260180
Download: ML20137B097 (19)

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s \y T JOHN E HARWARD - 06c

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November 15, 1985

-2 Mr. Jerome Saltzman Assistant Dir1ctor State and Licensee Relations Of fi~ce of State ' Programs ( Mail Stop AR5037)

U. S. Nuclear Regulatory Commission

_ Washington, D. C. 20555~

Subject:

Abstract #107

Carborundum Company, Inc, et al. ,,3 LRe

AMEX 3 Inc.

D/0: 1957 - 1984 Abstract #108 Commonwealth Edison Company Re: James O' Connor D/O: - October 1983

Dear ' Jerry:

I:

In. reviewing'our files, I observed that we have not fur-nished you.with copies.or'the complaints for the two cases

~ identified in the caption. Copies of the; complaints are attached'and other pertinentinformation which may be of interest is submitted in the following outline.

L Abstract ~5107. Carborundum Company. Re: AMEX  ;

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"., a. Wo.have' denied coverage to Carborundum Company in'this

, . ," -case and are not participating in the litigation. As n you can see from reviewing the complaint, there was a

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tO -significant' delay before we were notified of-the suit

.g and the. insured had'already appointed their own defense i: .a counsel. Itialso appeared that the' alleged liability of

' h Carborundum, Company and its successors was due to j -contractual commitments which were unrelated to nuclear

~ liability exposures. - A further' problem in this case is g-

[ je that the property damage was allegedly caused by the Oh processing:of " source material"'which is excluded from 3

. coverage under our-policy.

- l The Exhonge Suite 245[270 Fouangton Aenue /Forrnngton. Connectcut 06032 /(203)677-7305 m Eng . J203)677-7715/ILX.Na643-02

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' Mr. Jerome Saltzman Page 2 ' November 15, 1985 Our coverage declination has been conveyed to the policyholder-and the broker and, as far as we'know, the matter is continuing to receive . attention by the defense attorney-appointed earlier by the policyholder.

Abstract #108. Commonwealth Edison Company. Re: James O' Connor Wefhave very little i nformation on this case other than that" contained in the complaint in which. nonspecific

- injuries are claimed by the plaintiff, allegedly as a result of radiation exposures at the Commonwealth Edison Quad. City nuclear plaint in Cordova, Illinois.

We have this case under investigation and have referred the matter to defense counsel to enter.an appearance and

-otherwise protect the interests of our policyholder.

Sorry for the delay in reporting these suits. Please let me know if you require any additional information at this time.

Very truly yours, x vuc-7VL/

c/J. E. Harward Vice President, Claims JEH/pbj Enclosures I

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK-

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,---------x AMAX INC.,  : Index No. 17278-83' Plaintiff,  :

- against -

SECOND AMENDED COMPLAINT SOHIO INDUSTRIAL PRODUCTS COMPANY,-  :

a division of KENNECOTT CORPORATION, Defendant.

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Plaintiff, AMAX, Inc., by its attorneys, Paul, Weiss, Rifkind, Wharton & Garrison, for its second amended ,

complaint against defendant, alleges as follows:

NATURE OF THE ACTION .

1. - This is an action to recover damages resulting from the radioactive contamination of an industrial site.

The site was contaminated by The Carborundum Company

(" Carborundum") to which defendant, Schio Industrial Products

. Company.("Sipco"),.a division of Kennecott Corporation

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("Kennecott"), is the successor in interest. Plaintiff, AMAX Inc. (together with its predecessors in interest, "AMAX"), acquired the property after it was contaminated, and suffered-damages when the contamination was subseque'ntly +

discovered. Recovery is sought on grounds of: (1) breach

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of a written agreement to indemnify; (2) riuisance based on negligence; and (3) nuisance based on liability for abnormally dangerous activity. ,

THE PARTIES

2. AMAX is a corporation duly organized and existing under the laws of the State of New York, having its principal place-of business'in Greenoich, Connecticut.

3. Sipco is a division of Kennecott, a corporation-duly organized and existing under the laws of the State of New York, having its principal place of business in Stamford, Connecticut. Upon information and belief, Carborundum merged into Kennecott in 1980, and Sipco now carries on certain of the businesses of Carborundum, including the .

manufacture and sale of abrasive materials and products.

Upon information and belief, as a result of their succeeding to Carborundum's business, Sipco and therefore Kennecott are liable for the obligations of Carborundum, including its liabilities on the claims asserted in this action.

FIRST CAUSE OF ACTION (Breach of Agreement to Indemnify)

Carborundum's Contamination of the Parkersburg Site

4. Beginning in or about 1957, Carborundum began the production of nuclear grade zirconium metal in a plant 2

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I' located ,in Parkersburg, West Virginia (the "Parkersburg I

l plant"). In<1961,' pursuant to a license from the Atomic

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Energy Commission, Carborundum began to process Nigerian zircon ore containing up to 84 thorium, a radioactiv,e

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• sourcem5terial. The thorium ended up as a by-product in the process used to' extract'the zirconium.

5. Upon information and belief, Carborundum stored the radioactive residues resulting from the processing of'the Nigerian zircon ore, and the Nigerian ore itself, in drums at the plant site in Parkersburg-("the Parkersburg site"),

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and/or buried the radioactive residues in a waste dump or dumps located on the Parkersburg site.

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6. 'Upon information and belief, Carborundum discon -

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tinued the use of the' Nigerian ore as a source of zirconium ,

t in early_1964. Thereafter, Carborundum operated the Parkers-4 burg plant using zircon ore which contained no thorium.

The Carborundum-AMAX' Joint Venture

7. In May, 1965, Carborundum and Climax Molybdenum Company of Michigan, a corporation wholly owned by AMAX, entered into a joint venture for the production and marketing of zirconium and'other metals. Pursuant to the joint venture

• . agreement,-Carborundum sold the Parkersburg plant and the -i i-Parkersburg site to the joint venture. ,

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8. Carborundum and Carborundum Metals Climax Inc.,

. the newly-formed joint venture, executed an Assumption Agree-l ment on' June 18, 1965, pursuant to which Carborundum agreed to:

" indemnify and hold the [ joint venture) harmless against any and all claims for liability asserted against the [ joint venture] not expressly assumed by the [ joint venture) hereunder and arising out of any state of facts which existed prior to the date hereof, including, without limitation, all such liabilities and claims as are expressly excluded from the assumption herein contained."

9. The joint venture did not process Nigerian ore, but used only zircon ore containing no thorium at the Parkers-burg plant. .

10. The joint venture was terminated in May, 1967.

At that time, AMAX purchased Carborundum's share in the joint venture and succeeded to the joint venture's rights under the indemnification agreement signed by Carborundum in 1965.

AMAX's Subsequent Activity in Parkersburg

11. Two, days after the termination of the joint venture, AMAX requested the assistance of the Atomic Energy Commission in connection with the disposal of the radioactive process residues and the Nigerian ore left at the Parkersburg site by Carborundum. AMAX removed all radioactive materials of'which it was then caare from the Parkersburg site to a 4

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burial site approved by the Atomic Energy Commission in late 1968 and early 1969.

12. AMAX did not process Nigerian ore, or any ore containing thorium or other radioactive source material, other than minor amounts used in laboratory-scale experiments, at the Parkersburg plant. All production of zirconium metal at the Parkersburg plant was terminated in 1975.

Discovery of the Contamination

13. AMAX sold the Parkersburg plant and site to L.B. Foster Company.(" Foster") early in 1977. In April, 1978, Foster informed AMAX that it had discovered three small ground areas in which the level of radioactivity signifi-cantly exceeded the background level of radioactivity, and requested a survey of the Parkersburg site. AMAX agreed to such a survey and also agreed to remove soil from the areas identified by Foster.

14. Shortly thereafter, the Nuclear Regulatory l

Commission ("NRC") conducted an inspection of the site. In a meeting with representatives of the NRC in May, 1978, AMAX again agreed to a radiological evaluation of the Parkersburg l site to locate and identify areas of radioactivity. That survey was begun in' July, 1978 and submitted by AMAX to the NRC in December, 1978. -

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15. In 1978, as a result of the' discovery of such previously unknown radioactive and other hazardous materials at the-Parkersburg site, Fosber asserted claims against AMAX. In settlement of-those claims, AMAX agreed to repur-chase the site from Foster at a cost of $700,000, to lease part of it back to Foster at a rent of $1/ year and to pay-Foster approximately $800,000 for the relocation of buildings

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constructed by Foster to a decontaminated or uncontaminated portion of the site.

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16. Thereafter, AMAX began to develop a compre-hensive plan for the clean-up and decontamination of the Parkersburg site, to meet the standards established by the NRC. By December 1980, the decontamination. plan had been complete, and submitted to the NRC for approval. The plan was implementedy and the radioactive contamination stabili-zation of the site was completed in late 1982, at a cost to AMAX in excess of $1,500,000.

S'ipco's Breach of the Assumption Agreement

17. In' July, 1982, in response to a request from AMAX that Carborundum share in the cost of decontamination of the Parkersburg site, Sipco and therefore Kennecott disclaimed any liability on the part of Carborundum or its successor for radioactive contamination of'the site. AMAX formally demanded indemnification for the costs incurred by 9

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AMAX forlthe stabilization work undertaken as a result of Carborundum's contamination of the. property in October,'1982. -

I That demand has' elicited no. action from Sipco or the Standard Oil CompanyL(Ohio).

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.Through its refusal to accept any responsibility for Carborundum's contamination of the Parkersburg site, and

-to indemnify AMAX for the costs incurred in connection with e

the' radioactive contamination stabilization of the site, Sipco has breached the Assumption Agreement dated' June 18, '

1965.

19. By reason of the foregoing, AMAX has been -

injured'and is entitled to. recover compensatory damages in an amount which cannot. presently be determined,-but which

exceeds $3,878,000. '

4 SECOND CAUSE OF ACTION (Nuisance Based on Negligence)

20. AMAX' repeats and realleges the allegations

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of-paragraphs 4-16 of this Complaint.

21.- Carborundum was under.a duty to use, store and dispose of the Nigerian ore and process residues containing radioactive source material in such a manner that the Parkers-i burg, site would not become contaminated by such radioactive

• i source material.

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22. In violation of this duty, Carborundum negli-gently failed to use, store and dispose of the Nigerian ore and process residues containing radioactive so'urce material properly and to prevent radioactive contamination of the site.

23. As a result of Carborundum's negligence, the Parkersburg site became contaminated from the radioactive source material imported and processed by Carborundum. This radio-active contamination was a substantial and unreasonable inter-ference with the right of AMAX to use and en' joy its property, and thus constituted a private nuisance.

24. The' radioactive contamination of the Parkers-burg site was also an unreasonable interference with the health, safety and property rights of the communities-of Parkersburg, West Virginia and the surrounding areas, and thus constituted a public nuisance.

25. As a result of this radioactive contamination, AMAX was forced to repurchase the site from Foster, to pay for the relocation of buildings constructed by Foster, and to undertake a massive effort to clean up and stabilize the site.

26. By reason of the foregoing, AMAX has been

~ injured and'is entitled to recover compensatory damages sustained within three years prior to the commencement of this action. These damages are in an amount which cannot ,

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d presently be determined, but which exceeds $2,008,000.

Sipco, as Carborundum's successor in interest, is liable for these damages.

THIRD CAUSE OF ACTION (Nuisance Based on Liability for Abnormally Dangerous Activity)

27. AMAX repeats and realleges the allegations of paragraphs 4-16 of this Complaint.

28. The use, storage and disposal of ore, such as the Nigerian ore processed by Carborundum, containing radio-active source material, and residues from the processing of such ore, are ultra-hazardous activities which involve '

substantial risk of serious harm to persons and property from

- radioactive contamination.

29. Carborundum was under an absolute duty to use, store and dispose of the Nigerian ore and process residues containing radioactive source material in such a manner as to prevent radioactive contamination of the Parkersburg site.

30. In violation of that duty, Carborundum failed to use, store and dispose of the Nigerian ore and process residues in such a way as to prevent radioactive contamina-tion, and, as a result, the Parkersburg site became conta-minated.

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31. . The radioactive contamination of the Parkers-burg site, caused by carborundum's breach of its absolute duty to prevent such contamination, was a substantial and unreasonable interference with the,right of AMAX to use and enjoy its property, and thus constituted a private nuisance.

32. The radioactive contamination'of the Parkers-burg site was also an unreasonable interference with the health, safety and property rights of the communities of Parkersburg, West Virginia and the surrounding areas, and thus constituted a public nuisance.

33. As a result of this r adioactive contamination, AMAX was forced to repurchase the site from Foster, to pay for the relocation 'of buildings constructed by Foster, and to undertake a massive effort to clean up and stabilize the site.

34. By reason of the foregoing, AMAX has been injured and is entitled to recover compensatory damages l sustained within three years prior to the commencement of l this action. These damages are in an amount which cannot j presently be determined, but which exceeds $2,008,000.

i Sipco, as Carborundum's successor in interest, is liable for these damages.

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7 WHEREFORE, AMAX demands judgment as follows:

1. (a) On the first cause of action, awarding

AMAX compensatory damages in an amount which cannot presently be determined, but which exceeds $3,878,000; (b) On the second and third causes of action,

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-t- awarding AMAX compensatory damages in'an amount which r

! cannot presently be determined, but which exceeds

$2,008,000.

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1 2. Awarding AMAX the costs and disbursements of this action, together with such further relief as to the Court seems just and proper.

Dated, New York, New York November 21, 1983 PAUL, WEISS, RIFKIND, WHARTON & GARRISON A partnership including professional corporations

Attorneys for Plaintiff

345 Park Avenue .

New York, New York 10154

(212) 644-8000 I

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COURT S1DG10NS STATL'0F II.LINDIS, TAz.uad. COUNTY, ss.

THE CIRCUIT COURT OF THE TENTH JUDICIAL CIBCUIT Tazewoll County, I111acisIn'tho'name of the' People of the State of Illinois, in,the C N I

[~ h S RICHARD O'CONNOR (1st DUPLICATE ORIGINAL)  !

ee l%y so PIAINTIFFS NUMBER 85-L-2076 t . k 4-j ../

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~ COMMONWEALTH EDISON COMPANY a' Corporation, and NEW LONDON NUCLEAR COMPANY, Foreign .

Corporation' 4 SERVE:

DELAWARE CORPORATION ORGANIZERS, INC.-

1105 N. Market Street '

P. O. Box 1347 Wilmington, Delaware 19899 D u m.a u a N T S

'O cach of the above- named defendants:

Icu are hereby summoned and required to file an answer in this case, or otherw1:

ilo your appearance, in the office of the Clerk of this Court within 30 days l3ter cervice of this summons, exclusive of the day of service. If you fail to

.c 4 rayed so, ainjudgment the complaint. or decree by default may be taken against you for the relief W summons must be returned by the officer or other person to whom it was give fcr4tcrccrvice, cervice. with indorsement thereon of service and fees, if any, immediately

ndorsed. If service cannot be made, this summons shall be returned so '

EIS SUl& TONS XAT NOT BE SERVED LATER THAN'30 DAYS AFTER ITS DATE.

• 9,, a day of OCTOBER 19 85 x s tk. u. s u ~MM '

laintiff's Attorney: .(or plaintiff, if he be not rep / resented by attorney)

JAY H. JANSSEN ldd: goc: Savinos Center Tower. Peoria. IL. .

C EpHONE NUMBER: 309 676-2341 ato of Service: 19 (To be inserted by officer on copy lef t with Defendant of'~oYh'ef p*sison~. )

.T. ' . . , ~ . C C IN THE CIRCUIT COURT OF TH JUD AL CIRCUIT OF ILLINOIS EWELLCOggY" 4 5

gCT JAMES RICHARD O' CONNER, h$s Plaintiff,

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vs. )

)- CASE NO. 95 bdo7[

COMMONWEALTH EDISON COMPANY, )

a Corporation, and NEW LONDON )

NUCLEAR COMPANY, Foreign )

Corporation, )

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Defendants. )

COMPLAINT Now comes the Plaintiff, JAMES RICHARD O' CONNER, by his attorneys, JAY H. JANSSEN and JERELYN D. MAHER, and complaining of the Defendants, COMMONWEALTH EDISON COMPANY, a Corporation, and .

NEW LONDON NUCLEAR COMPANY, a Foreign Corporation, states as follows ,

COUNT I Plaintif f, JAME.S RICHARD O' CONNER, caplaining of the Defendant, COi4MONWEALTH EDISON COMPANY, a Corporation:

1. That the Defendant, COMMONWEALTH EDISON COMPAN', Y a Corporation, at all times herein mentioned was a corporation doing business in the County of Tazewell and the State of Illinois and having a place of business and office in the County of Tazewell and State of Illinois.

2. That the transaction herein complained of occurred on or about October 3, 1983, and October 4, 1983, at the Defendant's premises known as tlie Commonwealth Edison Nuclear Power Plant, Cordova, Illinois.

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3. That on October 3, 1983, and October 4, 1983, Plaintiff, '

JAMES RICHARD O' CONNER, was an employee of Morrison Coristruction ,

Company, working as a pipefitter, and was involved in the construct-ion repair operations occurring at the premises owned, maintained and occupied by the Defendant, COMMONWEALTH EDISON COMPANY, a Corporation, known as the Commonwealth Edison Nuclear Power Plant in Cordova, Illinois.

4. That on October 3, 1983 and October 4, 1983, JAMES RICHARD O' CONNER was upon the premises of the Defendant, COMMONWEALTH EDISON, COMPANY, a Corporation, in response to an express or implied invitation on the part of COMMONWEALTH EDISON COMPANY, a Corporation !

in that JAMES RICHARD O' CONNER was performing activities incidental i

to the construction repairs of Commonwealth's Nuclear Power Plant in Cordova, Illinois.

5. That Plaintiff was a business invitee by virtue of the ,

aforesaid and as such, Plaintiff, JAMES RICHARD O' CONNER, was owed the duty by the Defendant to use reasonable and ordinary care in keeping the premises safe for the benefit of the Plaintiff and others working upon said premises.

6. That at the aforesaid time and place, Plaintiffs, JAMES RICHARD O' CONNER, was working in Drywell Unit 62, and during the period while said Plaintiff was in Drywell Unit 42, nuclear material l was flushed through the pip 1ng in the area where Plaintiff was l working, causing the Plaintiff to receive serious and permanent radiation injuries.

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7. That at the aforesaid time and place, the Defendant, .

COMMONWEALTH EDISON COMPANY, a Corporation, was guilty of one or more of the following negligent acts or omissions in that:

(a) The Defendant allowed the flushing of nuclear material through piping causing excessive radiation when the Defendant knew or should have known that Plaintiff was  ;

in said area.

(b) The Defendant exposed the Plaintiff to excessive

! amounts of radiation, said radioactive materials being under l

the control of Defendant and Defendant's agents.

) (c) The Defendant failed to provide Plaintiff with a

safe place for Plaintiff to work, in that Defendant allowed  ;

excessive amounts of nuclear radiation to be present in the '

area where Defendant knew or should have known workmen, .

I including the Plaintiff, would be present. i t

(d) The Defendant failed to warn the Plaintif f of the t excessive amount of radiation in the area where Plaintiff was j directed to make repairs for the use and benefit of the I

Defendant. l 5 l l 8. That as a direct and proximate result of one or more of the i

aforesaid negligents acts and/or omissions, Plaintiff was injured in various parts of his body and suffered and will suffer pain and  !

l was and will be forced to pay and become liable for, and in the l future be forced to pay various sums for hospital, medical and

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surgical expenses for treatment of his injuries, and he was hindered l >av n. unnen linne n eseman .

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and prevented from attending to his usual business and affairs and lost sums of money which he could otherwise have received as wages and earnings and was permanently injured.

WHEREFORE, Plaintiff, JAMES RICHARD O' CONNER, request judgment against the Defendant, COMMONWEALTH EDISON COMPANY, a Corporation, in a sum in excess of FIFTEEN THOUSAND ($15,000.00) DOLLARS and costs of this suit, and DEMANDS THAT THE ISSUES HEREIN CONTAINED BE TRIED BY A JURY.

COUNT II Plaintiff, JAMES RICHARD O' CONNER, complaining of the Defendant, NEW LONDON NUCLEAR COMPANY, a Foreign Corporation:

1. - 6. Plaintiff repeats and realleges the allegations contained in Paragraphs 1 through 6 of Count I as Paragraphs 1 -

through 6 of Count II herein.

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7. That NEW LONDON NUCLEAR COMPANY, a Foreign Corporation, was employed by COMMONWEALTH EDISON COMPANY, a Corporation, to accomplish nuclear repairs and maintenance at the Commonwealth Edison Nuclear Power Plant, Cordova, Illinois, at the time Plaintiff received his injury.

8. That NEW LONDON NUCLEAR COMPANY, a Foreign Corporation, by their employees and agents flushed nuclear charged liquid throug:

the pipings in the area where Plaintiff was working on October 3 and October 4, 1983, causing Plaintiff radiation injuries.

9. That Defendant, NEW LONDON NUCLEAR COMPANY, a Foreign JAY H. JANSEEN

,l",[*y3 [',,[g,, . Corporation, was negligent in one or more of the following negligen THERESA J. RAME um.. cew= 50===

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acts or omissions in that:

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(a) The Defendant flushed nuclear material through the piping causing excessive radiation to the Plaintiff .

when the Defendant knew or should have known that Plaintiff was in said' area.

(b) The Defendant exposed the Plaintiff to excessive amounts of radiacion, said radioactive materials being under the control of the Defendant and Defendant's agents and employees.

(c) The Defendant failed to warn the Plaintiff of the excessive amount of radiation in the area where Plaintiff was working when said Defendant knew or should known of Plaintiff's presence in the area.

9. Plaintiff repeats and realleges the allegations contained in Paragraph 8 of Count I as Paragraph 9 of Count II, -

herein. ,

WHEREFORE, Plaintiff, JAMES RICHARD O' CONNER, request judgment against the Defendant, NEW LONDON NUCLEAR COMPANY, a F'oreign Corporation in the sum in excess of FIFTEEN THOUSAND ($15,000.00)

DOLMRS and costs of this suit, and DEMANDS THAT THE ISSUES HEREIN CONTAINED BE TRIED BY A JURY.

JAMES RICHARD O' CONNER, Plaintiff, l

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