United Nuclear Corp. v. Cannon

Decision Date13 December 1982
Docket NumberCiv. A. No. 81-0521-S.
PartiesUNITED NUCLEAR CORPORATION v. Joseph E. CANNON, Director Department of Health of the State of Rhode Island.
CourtU.S. District Court — District of Rhode Island




Deming Sherman, Patricia Zesk, Providence, R.I., for plaintiff.

Donald Elbert, Jr., Sp. Asst. Atty. Gen., Providence, R.I., for defendant Joseph E. Cannon.

Mary Ellen McCabe, Providence, R.I., for defendant Dept. of Health.


SELYA, District Judge.

This is an action brought by United Nuclear Corporation ("UNC") seeking, inter alia, declaratory and injunctive relief. At issue in this action is the constitutionality of S. 924, P.L. 1981, Ch. 85, enacted into law by the Rhode Island General Assembly on May 20, 1981 (hereinafter "S. 924"), which provides in its totality:

SECTION 1. The United Nuclear Corporation shall be required to post with the Director of Health of the State of Rhode Island a Ten Million Dollar ($10 million) bond for the duration of twenty (20) years to cover any costs expended by the State of Rhode Island to decontaminate those areas surrounding the United Nuclear Corporation facilities within this state, which contamination was caused by the processes of said company.
SECTION 2. This act shall take effect upon passage.

The ostensible purpose of S. 924 is to ensure proper decontamination of plaintiff's facility located at Wood River Junction, Charlestown, Rhode Island. Jurisdiction is founded upon 28 U.S.C. §§ 1331 and 1332.

The plaintiff alleges that S. 924 is unconstitutional because (i) it constitutes a bill of attainder; (ii) it is an impermissible ex post facto legislation; (iii) it is preempted by the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2011 et seq. (1976) (hereinafter the "Act"); and (iv) it is unconstitutionally vague, thus denying due process rights to UNC. The plaintiff, contending that there is no material issue of fact in dispute, filed this motion for summary judgment1 together with supporting brief and affidavits.

The defendant, also asserting that there are no genuine issues of fact, filed a cross-motion for summary judgment together with a brief and supporting affidavits. In its motion, the State alleges that S. 924 is a constitutionally permissible exercise of its police power.

Oral arguments were heard on these motions on November 12, 1982. After due consideration of the pleadings, briefs, affidavits, and oral arguments, the Court finds that there are no material facts in dispute.


In March of 1964, UNC was licensed by the Atomic Energy Commission2 to process nuclear fuel and recover enriched uranium ("U-235") from spent nuclear fuel at its Wood River Junction facility. Affidavit of Robert Gregg ¶ 4 (hereinafter "Gregg Affidavit"). The License permitted and permits UNC to handle source material3 and special nuclear material4 in quantities sufficient to form critical mass, i.e., quantities in excess of 350 grams of U-235. Id. at ¶ 5. The plant has in the past utilized, and continues to handle, U-235 in quantities sufficient to form critical mass. Id.

During the period of the facility's active operation, Rhode Island entered into an agreement (hereinafter, "the Agreement") with the NRC (effective January 1, 1980) transferring some of its regulatory authority anent radiation hazards to the State. 45 Fed.Reg. 104 (1980). Pursuant to 42 U.S.C. § 2021(b), § 274(b) of the Act, the Agreement permitted the State to regulate only radiation hazards emanating from source material and special nuclear materials in quantities below the level(s) sufficient to form critical mass. Both parties concur that the Agreement did not and does not affect NRC's regulation or licensing of current ongoing operations at the Wood River Junction facility.

Prior to the time that UNC decided to terminate operations at the facility, the NRC, as part of an amendment to the License, required UNC to post a financial commitment with the NRC to insure the availability of sufficient financial wherewithal on the part of UNC fully to carry out decontamination and other procedures and activities appertaining to License termination. Gregg Affidavit ¶¶ 7-8 and Exhibits A & B attached thereto. In August of 1980, UNC elected to cease fuel processing at the facility. Id. at ¶ 6. Work then began on decontamination of the facility subject to any further modifications of the License required by the NRC.

In 1981, during the decontamination process, the License was amended on two occasions. The first amendment stipulated that UNC would remain subject to the provisions of the License until NRC unilaterally released UNC from the obligations thereof. Id. at ¶ 10 and Exhibit C attached thereto. This has not to this date occurred. The second amendment engrafted upon the corpus of the License detailed procedures for decontamination of the facility. Id. at ¶ 11.

Shortly after efforts aimed at decontamination began, UNC experienced difficulty in implementing its plan to dispose of radioactive wastes at a disposal site in Nevada. Exhibit G of Gregg Affidavit. Subsequent to this incident the Governor of the State of Rhode Island, the Honorable J. Joseph Garrahy, banned shipments of wastes originating with UNC from access to state roads. Exhibits F & G, attached to Gregg Affidavit. With citizen concern apparently mounting over the potentialities of the situation, Governor Garrahy wrote on May 7, 1981 to the NRC requesting its assistance in finding solutions to the problems inherent in decontamination and radioactive waste disposal. Exhibit F, attached to Gregg Affidavit. When this letter failed to elicit an immediate response5, the Rhode Island General Assembly filled what it apparently perceived to be a governmental void by enactment of S. 924. Governor Garrahy signed the bill into law on May 12, 1981.

Passage of the bonding requirement did not, however, mark the end of the saga, but was, in a very real sense, merely the beginning of a new phase of difficulties. The Attorney General's Office of the State of Rhode Island, on June 19, 1981, wrote to Governor Garrahy expressing reservations as to the validity of S. 924. Exhibit B, attached to Plaintiff's Statement of Material Facts. Further concern over the constitutionality and enforceability of S. 924 was manifested in Governor Garrahy's request for an advisory opinion from the Rhode Island Supreme Court anent the legality of S. 924. Id. at Exhibit C. The Rhode Island Supreme Court declined to render such an advisory ruling, stating in substance that it could not and would not give an opinion without development of an adversarial record. Exhibit D, attached to Plaintiff's Statement of Material Facts. Shortly thereafter, the Attorney General announced that he would seek immediate enforcement of S. 924. Plaintiff's Statement of Material Facts, Fact # 8. This litigation ensued.


A court will not grant summary judgment unless there is no genuine issue as to any material fact, and it clearly appears that the moving party is entitled to judgment as a matter of law. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). Cross-motions for summary judgment will not, in themselves, warrant the Court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not in dispute. Redman v. Warrener, 516 F.2d 766, 768 (1st Cir.1975); Bricklayers International Union of America, Local 15 v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir.1975); Hosemann v. Technical Materials, Inc., 554 F.Supp. 659, 663 (D.R.I.1982). Cross-motions may be probative of the non-existence of a factual dispute when, as in the case at bar, they demonstrate a basic agreement concerning the relevant legal theories and the dispositive facts. Bricklayers International, 512 F.2d at 1023. As noted above, the facts are not in dispute and the record indicates that the only genuine issue is the constitutionality of S. 924. Thus, the case is ripe for summary disposition. Thyssen Plastik Anger KG v. Induplas, Inc., 576 F.2d 400, 402 (1st Cir.1978); and when both parties cross-move on the same legal theory, a court's granting of one party's motion must perforce entail the denial of the adversary's motions. Schlytter v. Baker, 580 F.2d 848, 849 (5th Cir.1978); Stewart v. Dollar Savings and Loan Association, 523 F.Supp. 218, 220 (S.D. Ohio 1981).


The Court first will determine the statute's constitutionality as to the claim that it is a bill of attainder.

Article I, § 10 of the Constitution prohibits any state from enacting a bill of attainder. A bill of attainder6 is a legislative act which inflicts punishment on a specifically designated person or group without benefit of trial. United States v. Brown, 381 U.S. 437, 447, 85 S.Ct. 1707, 1714, 14 L.Ed.2d 484 (1965); Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323, 18 L.Ed. 356. In Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), the Supreme Court enounced a two-part test for determining whether a legislative enactment is a bill of attainder. If the act impermissibly designates an individual or an easily identifiable group and then proceeds to punish that person or group, the act is a bill of attainder. Id. at 472, 97 S.Ct. at 2805.

The plaintiff interprets S. 924 as fulfilling both criteria of the test set forth in Nixon, supra. UNC contends that it was singled out, thus meeting the first requirement of the Nixon test; and that posting a seven-figure bond for two decades must be viewed as a punishment within the purview of the second prong of the test.

UNC grossly misreads the Supreme Court's holding in Nixon. Although specific designation is a key element of a bill of attainder, the earmarking of a person (whether natural or...

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