487 F.Supp.2d 1076 (E.D.Mo. 2007), 4 05 CV 0315, Missouri v. Westinghouse Elec., LLC

• Citation: 487 F.Supp.2d 1076
• Party Name: Missouri v. Westinghouse Elec., LLC
• Case Date: January 22, 2007
• Court: United States District Courts, 8th Circuit, U.S. District Court — Eastern District of Missouri

Page 1076

487 F.Supp.2d 1076 (E.D.Mo. 2007)

State of MISSOURI, Plaintiff,

v.

WESTINGHOUSE ELECTRIC, LLC, Defendant.

No. 4:05 CV 0315 SNL.

United States District Court, E.D. Missouri, Eastern Division.

Jan. 22, 2007

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[Copyrighted Material Omitted]

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Shelley A. Woods, Assistant Attorney General of Missouri, Jefferson City, MO, for Plaintiff.

C. Shawn Dryer, Babst and Calland, Pittsburgh, PA, for Defendant.

ORDER

LIMBAUGH, Senior District Judge.

This case is one of two actions before the Court involving the cleanup of environmental contamination at the Hematite Nuclear Facility. Westinghouse Electric Company purchased the Hematite Site in 2000, and shortly thereafter began to decommission the facility. However, the Hematite Site had operated as a nuclear fuel processing plant for upwards of forty years, and is contaminated with radiological and chemical wastes. Therefore, Westinghouse has been working with the United States Nuclear Regulatory Commission (NRC) and the Missouri Department of Natural Resources (MDNR) in an attempt to decontaminate the site.

In February of 2005, the State of Missouri filed suit against Westinghouse under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607, the Missouri Hazardous Waste Management Law, Mo.Rev.Stat. § 260.350 et seq. , and the Missouri Clean Water Law, Mo.Rev.Stat. § 644.006 et seq. In the Complaint, Missouri requested injunctive relief, requiring that Westinghouse perform a Remedial Investigation/Feasibility Study (RI/FS) to determine the nature and extent of the contamination and develop a plan to decontaminate the area. Missouri also demanded that Westinghouse implement the remedy selected through the RI/FS process and reimburse the MDNR for any past or future response costs incurred at the Hematite Site.

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In May of 2006, the State of Missouri and Westinghouse entered into a Consent Decree and submitted it to the Court for approval. This Consent Decree was crafted pursuant to Section 107 of CERCLA, and includes a detailed plan for the decontamination of Hematite Site. Generally, a Court gives deference to a Consent Decree, and should issue its approval if the Decree is "fair, reasonable, and faithful to the objectives of" CERCLA. United States v. Cannons Eng'g Corp., 899 F.2d 79, 84 (1st Cir.1990). However, this is not a general case.

As previously stated, there are two actions before this Court involving the Hematite site. The related cause of action was brought by Westinghouse against the United States of America and several other corporate Defendants, all of whom formerly owned the Hematite property and may be liable for the expenses incurred during the decontamination process. For reasons not pertinent to the Court's analysis, the Defendants in the second suit intervened in this action to protect their interests. In addition, the NRC, which is the federal agency charged with regulating the civilian use of nuclear materials, takes issue with the State of Missouri's attempt to regulate radiological waste. Accordingly, there are a multitude of parties advancing a multitude of theories as to why this Consent Decree should not be approved. ¹

I. Case & Controversy

As a preliminary manner, the Court must address the case or controversy issue raised by the Non-Governmental Intervenors. If there is no genuine case or controversy, this Court lacks jurisdiction to determine the validity of the Consent Decree.

A cause of action that lacks "truly adverse parties," is considered a collusive action and must be dismissed. Honig v. Doe, 484 U.S. 305, 340, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). However, consent decrees necessarily require a certain amount of compromise and cooperation. Otherwise, it could never be formed. As stated by the Supreme Court:

Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation.

United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971).

The Non-Governmental Intervenors suggest that the State of Missouri and Westinghouse colluded in fashioning this Consent Decree. This collusion is allegedly evidenced by the fact that much of the work to be performed under the Consent Decree has already been completed. The Proponents vehemently disagree with this characterization, arguing that the Consent Decree was the result of intense arms-length negotiations between the parties. The completed work was performed pursuant to a Letter Agreement, the substance of which was to be finalized upon entry of this Consent Decree.

Upon review, the Court finds nothing that would render this Consent Decree collusive. "The Supreme Court has long

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endorsed the propriety of the use and entry of consent judgments." S.E.C. v. Randolph, 736 F.2d 525, 528 (9th Cir.1984) (citing United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971); Pope v. United States, 323 U.S. 1, 12, 65 S.Ct. 16, 89 L.Ed. 3 (1944); Swift & Co. v. United States, 276 U.S. 311, 325-326, 48 S.Ct. 311, 72 L.Ed. 587 (1928)). And a certain amount of cooperation between the parties is to be expected. Accordingly, there is a genuine case and controversy, and the Court has jurisdiction over this action.

II. Consent Decree

In the Consent Decree, the State of Missouri seeks reimbursement for past and future costs incurred by the State in connection with the Hematite Site. Pursuant to Sections 107(a) and 113(f) of CERCLA, the State is vested with the right to pursue this monetary recovery. However, the Consent Decree also requires that Westinghouse "finance and perform the Work in accordance with the Consent Decree." Consent Decree, at ¶ 11. The term "Work" encompasses:

all work and other activities [Westinghouse] is required to perform under this Consent Decree including, but not limited to, the activities set out in the RI/FS Work Plan ... implementation of the Removal Action for Duel's Mountain and the Site Buildings and Equipment and any additional response actions agreed to by the parties.

Consent Decree at ¶ 9. The MDNR is "responsible for overseeing the proper and complete implementation of the Work under this Consent Decree" and has "the authority to halt, conduct or direct any action required by this Consent Decree, or to direct any other response action undertaken by MDNR or [Westinghouse] at the Site." Id. at ¶ 51. Duel's Mountain, the Site Buildings and Equipment, and other areas of the Hematite Site included in the RI/FS Work Plan are contaminated with uranium and other radiological and non-radiological components. Thus, through the Consent Decree, the State of Missouri is attempting to control the decontamination of a site containing radioactive contaminants.

The Intervenors take issue with Missouri's attempt to regulate the safety of radiological materials. They argue that the State has no federal authority to engage in such regulation, and that any authority under state law is pre-empted by the Atomic Energy Act (AEA), 42 U.S.C. §§ 2011-2297g-4. Proponents of the Consent Decree concede that the Consent Decree was entered into because of the State's safety concerns, but argue that the Consent Decree is not pre-empted by the AEA for the following reasons; CERCLA grants the State the power to enter into the Consent Decree; State action is not pre-empted where the facility is decommissioned, or where mixed contaminants are present; and the Consent Decree contains limiting language to avoid pre-emption. ²

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III. CERCLA

Proponents argue that a Supremacy Clause analysis does not apply because the State of Missouri brought this cause of action under CERCLA. Specifically, Proponents claim that Section 107 of CERCLA gives the states authority to conduct response actions at areas contaminated with hazardous materials, including site cleanup. "The Supremacy Clause is not implicated when a case involves a potential conflict between federal statutes," Lupiani v. Wal-Mart Stores, Inc., 435 F.3d 842, 846 (8th Cir.2006). Thus, Proponents posit that the general pre-emption analysis is inapplicable to a conflict between the federal government and a state bringing suit under a federal statute.

Despite Proponents' assertions, CERCLA does not grant a state the power to regulate radioactive materials. Under Section 107 of CERCLA, any person responsible for a hazardous substance contamination is liable for "all costs of removal or remedial action incurred by the United States Government or a State," "any other necessary costs of response incurred by any other person," damages to natural resources (including the cost of assessing those damages), and the costs of health assessments and health effect studies. 42 U.S.C. § 9607(a). The Section also allows the President or an authorized representative of a State to bring suit on behalf of the public to obtain monetary relief when there are damages to natural resources. 42 U.S.C. § 9607(f). Thus, Section 107 allows a State to recover the costs incurred in a remedial action, but it does not give the State the authority to engage in any specific remedial action.

Sections 104 and 106 of CERCLA allow the President to respond to the release or threatened release of hazardous substances, taking any necessary action to control the release and decontaminate the polluted area. This includes the power to permit a responsible private party to conduct an RI/FS. However, a responsible party cannot conduct an RI/FS unless...