McMunn v. Babcock & Wilcox Power Generation Grp., Inc.
| Citation | 869 F.3d 246 |
| Decision Date | 23 August 2017 |
| Docket Number | 15-3652,15-3639,15-3509,15-3514,15-4076,15-3510,15-3507,15-3644,15-3658,15-3646,15-3511,15-3508,15-3651,15-4075,15-3657,Nos. 15-3506,15-3655,15-3512,15-3641,15-3648,15-3564,15-3642,15-3640,15-3645,15-3656,15-3643,15-3654,15-3650,15-3647,15-3653,15-4077,& 16-1965,15-4078,15-3515,15-3660,15-3649,15-3659,16-1694,15-3513,s. 15-3506 |
| Parties | Michelle MCMUNN, personal representative of the Estate of Eva Myers ; Cara D. Steele; Yvonne Sue Robinson; Edward J. Myers ; Levi Daniel Steele; Harold Robinson, et al v. BABCOCK & WILCOX POWER GENERATION GROUP, INC.; B&W Technical Services, Inc., fka B&W Nuclear Environmental Services, Inc.; Atlantic Richfield Company, predecessors-in-interest, successors-in-interest, subdivisions and subsidiaries; Babcock & Wilcox Technical Services Group, Inc. Apollo Facility Plaintiffs, Appellants in Nos. 15-3506, 15-3507, 15-3508, 15-3509, 15-3510, 15-3511, 15-3512, 15-3513, 15-3514, 15-3515, 15-3564, 15-4075, 15-4076, 15-4077, 15-4078, 16-1964 and 16-1965 Babcock & Wilcox Power Generation Group, Inc. and Babcock & Wilcox Technical Services Group, Inc., Appellants in Nos. 15-3640, 15-3642, 15-3644, 15-3646, 15-3648, 15-3650, 15-3652, 15-3654,15-3656, 15-3658 and 15-3660 Atlantic Richfield Company, Appellant in Nos. 15-3639, 15-3641, 15-3643, 15-3645, 15-3647, 15-3649, 15-3651, 15-3653, 15-3655, 15-3657 and 15-3659 |
| Court | U.S. Court of Appeals — Third Circuit |
Louis M. Bograd [ARGUED], Motley Rice, 3333 K Street, N.W., Suite 450, Washington, DC 20007, Jonathan D. Orent, Motley Rice, 321 South Main Street, P.O. Box 6067, Providence, RI 02904, Anne McGinness Kearse, Motley Rice, 28 Bridgeside Boulevard, Mount Pleasant, SC 29464, David B. Rodes, Goldberg Persky & White P.C., 11 Stanwix Street, Suite 1800, Pittsburgh, PA 15222, Counsel for Appellants.
Stephen B. Kinnaird, Paul Hastings LLP, 875 15th Street, N.W., Suite 1000, Washington, DC 20005, Peter C. Meier, John P. Phillips [ARGUED], Sean D. Unger, Paul Hastings LLP, 55 Second Street, 24th Floor, San Francisco, CA 94105, Nancy G. Milburn [ARGUED], Philip H. Curtis, Reuben S. Koolyk, Arnold & Porter LLP, 399 Park Avenue, 34th Floor, New York, NY 10022, Geoffrey J. Michael, Arnold & Porter LLP, 601 Massachusetts Avenue, N.W., Washington, DC 20001, Counsel for Appellees.
Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges
SMITH, Chief Judge, joined by RESTREPO, Circuit Judge, who also joins in the Concurrence.
Plaintiffs assert that they developed cancer1
after being exposed to excessive radiation emissions from the Nuclear Material and Equipment Company ("NUMEC") facility in Apollo, Pennsylvania (the "Apollo facility"). Plaintiffs do not challenge the District Court's conclusions that their common-law claims against Defendants2 were preempted by the Price-Anderson Act and that only their Price-Anderson "public liability" claims are at issue in this appeal. Although the Price-Anderson Act preempted Plaintiffs' common-law negligence claims, Plaintiffs' Price-Anderson public liability claims require Plaintiffs to prove versions of the traditional negligence elements—(1) duty, (2) breach, (3) causation, and (4) damages.
The District Court held that Defendants were entitled to summary judgment as a matter of law on the Price-Anderson claims because Plaintiffs failed to show that there was a genuine dispute of material fact as to elements of duty, breach, and damages. Plaintiffs appealed. We agree with the District Court: Plaintiffs are missing critical elements, and therefore their claims fail.
Accordingly, we will affirm the judgment of the District Court.
Plaintiffs are more than seventy individuals3 in a group of consolidated cases who claim that excessive radiation emitted by Defendants—more specifically, radiation from uranium effluent from the Apollo facility—caused them to develop various cancers
.
Almost all of the Plaintiffs lived near Apollo, Pennsylvania, for many years, including the 1960s, and almost all of the Plaintiffs were diagnosed with at least one form of cancer
between 2007 and 2011.4 The similarities among the Plaintiffs end there. By our count, Plaintiffs alleged that they suffered from more than a dozen different types of cancer.5 Plaintiffs were of widely varying ages at the times of their diagnoses—with at least one individual under 30 and at least five individuals over 80. See JA3460 (81); JA3478 (82); JA3479 (88); JA3482 (81); JA3485 (29); JA3491 (82). Many of the Plaintiffs had extensive smoking histories, and some had multiple cancer
diagnoses over their lifetimes. See, e.g. , JA3474 ("smoked about half a pack per day for 40 years"); JA3463 ("diagnosed with breast cancer in 1986 and then again in 2008 at the age of 67").
The Apollo facility was a "warehouse style building that was not specifically constructed to house the complex manufacturing operation involving radioactive materials." JA1427. As Plaintiffs emphasize, the Apollo facility was adjacent to a steel mill and "in the immediate neighborhood of residential areas." JA1576.
The Apollo facility operated from approximately 1953 to 1983 with uranium fuel manufacture beginning in 1958 and decommissioning beginning in 1978. See JA1467; McMunn v. Babcock & Wilcox Power Generation Grp. , 131 F.Supp.3d 352, 356 (W.D. Pa. 2015).
The Atomic Energy Commission ("AEC") was the federal regulatory body in charge of overseeing the Apollo facility. During the time that the Apollo facility operated, the Nuclear Regulatory Commission ("NRC") became "the statutory successor to the Atomic Energy Commission." In re TMI , 67 F.3d 1103, 1112 (3d Cir. 1995).
The Apollo facility emitted radiation as a necessary byproduct of manufacturing uranium fuel. Plaintiffs argue that that radiation was in excess of regulatory limits. The focus in this dispute is on radiation emitted from the stacks, vents, and fans on the Apollo facility's roof.
Much of Plaintiffs' evidence of excessive emissions indicates that emissions from the stacks or vents on the roof exceeded the maximum permissible concentration ("MPC") for the facility. Plaintiffs do not contest that the relevant maximum permissible concentration is 8.8 disintegrations per minute per cubic meter (dpm/m3). See McMunn , 131 F.Supp.3d at 373 n.24 ; Pls.' Br. 10; cf. JA3642.
As discussed below, under the applicable regulations, the maximum permissible concentration is determined at the boundary of the "unrestricted area." Defendants argue that the boundary of the unrestricted area is the boundary of the roof, while Plaintiffs argue that any emissions from any part of the roof—including emission from any stack, vent, or fan—should be less than the maximum permissible concentration.
Plaintiffs point to evidence that they believe supports their position. In a June 5, 1964 letter, the Director of the Division of State and Licensee Relations of the AEC implied that the NUMEC had not shown that the roof was a restricted area: "[T]he roof area of the NUMEC facility is an unrestricted area unless access to this area is controlled from the radiation safety standpoint." JA5314. Consistent with the 1964 letter implying that the entire roof may be unrestricted, Plaintiffs argue that NUMEC and AEC's course of conduct shows that they both thought that stack emissions were a regulatory concern because NUMEC and AEC compared stack emissions to the maximum permissible concentration. For instance, in a 1967 report, a NUMEC employee wrote, "[T]he measured stack concentration frequently exceeds permissible levels." JA5201. The AEC similarly expressed concern about releases from stacks, as though the regulations created limitations on the stacks. In a February 5, 1969 letter, the Director of the Division of Compliance of the AEC warned, "Based on your recorded data, the concentrations of radioactive material released from the facility through exhaust stacks to unrestricted areas exceed the limits specified in Appendix B, Table II of 10 CFR 20, contrary to 10 CFR 20.105(a), ‘Concentrations in effluents to unrestricted areas.’ " JA4700.
In addition to the evidence about emissions from the stacks or vents, Plaintiffs' evidence of excessive emissions fits into one or more of the following three categories: (1) evidence that the monitoring of emissions was not completely comprehensive; (2) data that there was excessive radiation in the area surrounding the facility; and (3) data showing excessive radiation being released but seemingly only for specific, and short, periods of time (such as when the facility's incinerator was being used).6
Plaintiffs marshaled a large number of documents that they alleged created a genuine issue of material fact. The highlights of Plaintiffs' documents are below:
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