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Commonwealth, Dep't of Environmental Protection v. Lockheed Martin Corp.

February 1, 2010

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF
v.
LOCKHEED MARTIN CORPORATION, DEFENDANT



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

The Commonwealth of Pennsylvania, Department of Environmental Protection, ("PADEP"), brought this action for the recovery of response costs incurred in the cleanup of Strontium-90, ("Sr-90"), a radioactive and hazardous nuclear byproduct material, at or from the Quehanna Wild Area Nuclear Site in the Quehanna Wild Area of the Moshannon State Forest in Clearfield County, Pennsylvania, ("site"). Defendant Lockheed Martin Corporation's, ("LMC"), predecessor, the Martin-Marietta Corporation, was the last known user of Sr-90 at the site.*fn1

PADEP's cost recovery claims arise from Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended 42 U.S.C. §§ 9601-9675, ("CERCLA"), and certain environmental statutes and common law of the Commonwealth of Pennsylvania, including the Hazardous Sites Cleanup Act, ("HSCA"), 35 P.S. §§ 6020.101-6020.1305; the Solid Waste Management Act, ("SWMA"), 35 P.S. §§ 6018.101-6018.1003; the Clean Streams Law, ("CSL"), 35 P.S. §§ 691.1-691.1001; and Section 1917-A of the Administrative Code of 1929, 71 P.S. § 510-17. LMC has brought a motion to dismiss PADEP's Amended Complaint in its entirety.

I. Background

A. Facts

The following facts are taken from PADEP's Amended Complaint and matters of public record which are judicially noticeable. Specifically, the court takes judicial notice of certain facts and background information appearing in the Federal Register.*fn2 For the purposes of deciding LMC's motion to dismiss, all of the facts are taken as true, and have been construed in the light most favorable to PADEP.

1. Quehanna Wild Area Nuclear Site

The Quehanna Wild Area Nuclear Site is located near Karthus, Clearfield County, Pennsylvania, in the Quehanna Wild Area of the Moshannon State Forest, and is approximately seven acres in size, heavily wooded, and sparsely populated. See Nuclear Regulatory Commission Notice, 71 Fed. Reg. 59,839-40 (Oct. 11, 2006) ("Commission Notice"). The site contains one large building, several smaller buildings, asphalt parking lots and driveways, a septic system leach field used for sanitary sewer waste, and an approximately one acre pond. Id. The main building was constructed to house a pool reactor and associated laboratories, hot cells, and offices. Auxiliary buildings included a waste water treatment building, associated underground tanks, piping, and a water storage building. Id.

The site was constructed in 1957 after the Commonwealth of Pennsylvania enacted legislation for the location of a research facility that was to be operated by the Curtiss-Wright Corporation. Id. In 1958, the Atomic Energy Commission*fn3 issued a license to Curtiss-Wright to operate a pool reactor at the facility; the license included use of the hot cells and laboratories. Id. In 1960, Curtiss-Wright donated the facilities to the Pennsylvania State University, ("Penn State"), which planned to use the reactor for training and research; Penn State leased the hot cells to LMC. Id.

There were six hot cells in the main building on the site. (Doc. 3, Amend. Compl. ¶ 6.) The hot cells were large steel-lined, high-density concrete rooms that provided shielded work areas for high activity radiation work including encapsulation and irradiation. (Id.) From 1962 through 1967, LMC used the hot cells to manufacture thermoelectric generators known as SNAP generators. Commission Notice, 71 Fed. Reg. at 59,840. The SNAP generators contained Sr-90, a radioactive isotope that constitutes "byproduct material" within the meaning of the Atomic Energy Act ("AEA"). Id. At all times, LMC possessed and used Sr-90 pursuant to a Byproduct Material License No. 19-1398-29 issued by the Commission. Atomic Energy Commission, Notice of Issuance of Byproduct Material License, 27 Fed. Reg. 6341 (July 3, 1962); Notice of Proposed Issuance of Byproduct Material License, 27 Fed. Reg. 5518 (June 6, 1962).

In 1967, LMC terminated its lease for use of the hot cells after performing partial decontamination. Commission Notice, 71 Fed. Reg. at 59,840. However, "licensable quantities of Sr-90 contamination remained in the hot cells and associated facilities." Id. These quantities of Sr-90 were left in the hot cells, piping, and tanks in the main building at the site. (Doc. 3, Amend. Compl. ¶ 10.) LMC was the last user of Sr-90 at the site. Commission Notice, 71 Fed. Reg. at 59,840. Also in 1967, Penn State returned the site back to the Commonwealth of Pennsylvania, which subsequently leased it to a subsidiary of Atlantic-Richfield Corporation, and later to other companies, all of whom worked with hazardous substances. PADEP took control over all operations at the site in December 2002. Id.

2. Site Cleanup

In the early 1990s, PADEP contracted with a company to perform a site assessment which revealed that nearly all parts of the interconnected structure, including the hot cells, Service Area, waste water treatment building, associated drain lines, reactor bay, the inside of the walls, under floor coverings of the administration area, and the underlying soils were contaminated with Sr-90. (Doc. 3, Amend. Compl. ¶ 11.)

In 1998, a decommissioning plan was submitted by PADEP to the Commission, with a revision of the plan submitted in 2003. In May of 2005, a survey by the Commission revealed that the site did not meet release criteria approved in the 2003 decommissioning plan "because Sr-90 had leached to the surface of the concrete resulting in contamination levels in excess of the release limits." Commission Notice, 71 Fed. Reg. at 59,840. Specifically, this finding indicated that concrete thought to contain only surface contamination was "volumetrically contaminated." Id.

Since the first decommissioning plan was submitted, PADEP has taken response actions at the site, including the removal and disposal of residual Sr-90; demolition of the site structures and monitoring; as well as sampling the site to ensure that it met release criteria for Sr-90 and other hazardous wastes. (Doc. 3, Amend. Compl. ¶ 16.) The decommissioning and cleanup of the site has been complete since, at the latest, June 27, 2009. See 39 Pa. Bull. 3223 (June 27, 2009). As of the filing of its original complaint, PADEP has incurred more than $20,000,000 in unreimbursed response costs related to the cleanup and removal of the Sr-90 contamination left by LMC.

B. Procedural History

PADEP filed its initial complaint on April 30, 2009, (Doc. 1), and an Amended Complaint on May 7, 2009, (Doc. 3). On July 6, 2009, LMC filed its motion to dismiss and brief in support. (Docs. 16-17.) On August 12, 2009, PADEP filed its brief in opposition to LMC's motion. (Doc. 23.) On August 31, 2009, LMC filed its reply brief. (Doc. 26.) The motion is ripe for disposition, and for the reasons that follow it will be denied.

II. Legal Standard

Among other requirements, a sound complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This statement must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

In deciding a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all of the factual allegations in the complaint, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). Phillips, 515 F.3d 224, 233 (3d Cir. 2008). If the facts alleged are sufficient to "raise a right to relief above the speculative level" such that the plaintiff's claim is "plausible on its face," a complaint will survive a motion to dismiss. Twombly, 550 U.S. at 555, 570; Phillips, 515 F.3d at 234; Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007); Stevenson v. Carroll, 495 F.3d 62, 66 (3d Cir. 2007). See Ashcroft v. Iqbal, ___U.S.___, 129 S.Ct. 1937, 1949 (explaining a claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged"). Further, when a complaint contains well-pleaded factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1950. However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. (quoting Twombly, 550 U.S. at 555). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555).

"To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted); see also Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Pension Benefit, 998 F.2d at 1196. Additionally, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002) (citation omitted); see also U.S. Express Lines, Ltd. v Higgins, 281 F.3d 383, 388 (3d Cir. 2002) ("Although a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.") (internal quotation omitted). However, the court may not rely on other parts of the record in making its decision. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

III. Discussion

In its motion to dismiss, LMC asserts that all of PADEP's claims fail to state a claim as a matter of law. As to PADEP's CERCLA claims, LMC makes a two pronged attack: (1) CERCLA has no applicability to the decommissioning of the Quehanna Facility; and (2) the releases allegedly caused by LMC at the site are excluded under the plain terms of the statute. As to PADEP's state causes of action, LMC argues that each is preempted by the Atomic Energy Act. The court will address each of LMC's arguments in turn.

A. CERCLA

Before the court addresses the specifics of LMC's arguments, an overview of CERCLA is necessary. In response to widespread concern over the improper disposal of hazardous wastes, Congress enacted CERCLA, "a complex piece of legislation designed to force polluters to pay for costs associated with remedying their pollution." United States v. Alcan Aluminum Corp., 964 F.2d 252, 258 (3d Cir. 1992) (citing A Legislative History of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Senate Comm. of Env't & Pub. Works ("A Legislative History"), S. Doc. No. 97-14, 97th Cong. 2d Sess. 1983, Vol. I, at 320 (one of the statute's principal goals is "assuring that those who caused chemical harm bear the costs of that harm. . . .")).

CERCLA is a remedial statute which provides for strict liability, and should be construed liberally to effectuate its goals. Alcan Aluminum, 964 F.2d at 258-59; 42 U.S.C. § 9601(32). The statute embodies a bifurcated scheme to promote the cleanup of hazardous sites, spills, and releases. First, CERCLA grants broad authority to the executive branch to provide for the cleanup of hazardous waste sites. See 42 U.S.C. §§ 9604-05, 9611-12; Alcan Aluminum, 964 F.2d at 258. Second, CERCLA authorizes states and private parties to institute civil actions to recover the cost involved in the cleanup of hazardous wastes from those responsible for their creation, and to thereby ensure, so far as possible, that those who pollute the environment are liable for the response costs associated with cleaning it up. See 42 U.S.C. § 9607(a)(1-4).

Under § 9607, CERCLA liability is imposed for response costs where the plaintiff establishes the following four elements: (1) the defendant is a "responsible party"; (2) the hazardous substances were disposed of at a "facility"; (3) there is a "release" or threatened release of hazardous substances into the environment; and (4) the "release" causes the incurrence of "response costs." See id.; see also Alcan Aluminum, 964 F.2d at 258-59. Of these, LMC does not contest that the site meets the definition of "facility" as that term is defined by CERCLA, or that "response costs" were incurred by PADEP; however, it does challenge whether PADEP has properly pled, or, for that matter, could ever properly plead, that the other elements are present under the facts as alleged in the Amended Complaint and matters of public record. LMC also argues that as a matter of policy, CERCLA liability is inapplicable to sites decommissioned under the authority of the NRC. The court will address this latter argument first, and will then address LMC's other grounds for dismissal.

1. Applicability of CERCLA to An NRC Supervised Decommissioning

LMC argues that PADEP's CERCLA claim fails because CERCLA has no applicability to the decommissioning of the site pursuant to the Atomic Energy Act. It is undisputed that PADEP undertook its efforts to remedy the Sr-90 contamination as a licensee of the NRC pursuant to a decommissioning plan approved by the NRC. Indeed, the Amended Complaint acknowledges that the PADEP "has been remediating the . . . Sr-90 at the site under decommissioning plans approved by the NRC and consistent with 10 C.F.R. § 70.3811." (Doc. 3, Amend. Compl. ¶ 12.) As LMC points out in its brief in support of its motion, this admission is confirmed by the public record concerning the cleanup of radiological hazards at the site. See Commission Notice, 71 Fed. Reg. at 59,840.

LMC argues, without citation to authority, that because the clean-up was a Commission supervised decommissioning that CERCLA is inapplicable. LMC's argument finds no support in the statutory text of CERCLA or the Atomic Energy Act, and is not supported by the legislative history of either statute. CERCLA's plain language does not limit the ability to recover costs only to those costs incurred when the state acts as an environmental regulator rather than pursuant to a decommissioning plan approved by the NRC. Instead, § 9607 broadly permits the recovery of "all costs of removal or remedial action incurred by . . . a State." 42 U.S.C. § 9607(a)(4)(A). The only limitation on the recovery of "all costs" is that the "incurrence of response costs" must has been caused by "a release or, a threatened release . . . of a hazardous substance." See 42 U.S.C. § 9607(a)(4).*fn4

Putting aside for the time being that LMC challenges whether its handling of Sr-90 at the site constituted a "release" as that term is defined by CERCLA, there is little debate that PADEP took the actions that it did to remedy the continued presence of Sr-90 at the site, or that Sr-90 is a "hazardous substance" as that term is defined in 42 U.S.C. § 9601(14).*fn5 In its Amended Complaint, PADEP alleges that it "has incurred in excess of []20 million dollars in unreimbursed response costs related to the cleanup and removal of Sr-90 contamination left behind by [LMC]." (Doc. 3, Amend. Compl. ¶ 20.) This is a sufficient factual allegation to "plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1950.

For its part, LMC argues that the legislative history "confirms that CERCLA was intended to be applicable only to those radiological 'waste sites [that] do not otherwise come within section 170 of the Atomic Energy Act.'" (Doc. 17, Br. in Supp. of Mot. to Dismiss, at 7 (emphasis and alterations in original) (citing A Legislative History at 715)).*fn6 At first blush, the passage cited by LMC appears to support its position that CERCLA was not meant to apply to waste sites regulated by the NRC under the Atomic Energy Act, but a fuller examination of that passage results in a different conclusion. Unedited, and in context, the passage cited by LMC reads as follows:

Mr. HART.

As you know, Colorado and several other Western States have serious problems with wastes at radium sites that have been abandoned by companies whose radium mining, milling, and processing activities produced the wastes. These sites are dangerous because they are not properly controlled or regulated and emit low-level radiation. We have found many radium waste sites scattered across Colorado--under restaurants, in empty lots where children play, near factories, and elsewhere. These sites need to be cleaned up to protect the health and safety of Colorado citizens. My question is this: Does the term "hazardous substance," as defined in section 101(14) of this bill, include the wastes at these radium sites?

Mr. STAFFORD.

I will gladly assure the Senator from Colorado that if the radium waste sites do not otherwise come within section 170 of the Atomic Energy Act, and are not specified in the Uranium Mill Tailings Act, they will be eligible for funding and ...


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