McMunn ex rel. Myers v. Babcock & Wilcox Power Generation Group, Inc. (131 F. Supp. 3d 352, 2015)

United States District Court for the Western District of Pennsylvania 2015-09-15

The Public Health and Welfare

Citations

Full opinion text

Memorandum Order

DAVID STEWART CERCONE, District Judge.

The above captioned cases were referred to United States Magistrate Judge Robert C. Mitchell for pretrial proceedings in accordance with the Magistrate' Judges Act, 28 U.S.C. § 636(b)(1), and the Local Rules of Court for Magistrate Judges. In these actions, Plaintiffs allege that Defendants, Babcock & Wilcox ' Power Generation Group; Inc., B & W Technical Services, Inc. (“B & W”) and Atlantic Richfield Co. (“ARC”) (together “Defendants”), as successors in interest to Nuclear Materials Corporation (“NUMEC”), are responsible for the release of radioactive uranium from a nuclear processing facility located in Apollo, Pennsylvania and operated from approximately 1953 to 1983. Plaintiffs further allege that inhalation of radioactive uranium from the facility caused the Plaintiffs to develop cancer. Plaintiffs assert jurisdiction under the Priee-Anderson Act (the “PAA”), 42 U.S.C. § 2210(n)(2), and the Atomic Energy Act (the “AEA”), 42 U.S.C. § 2011.

The following motions were filed by- the Defendants: (1) motions for judgment on the pleadings, filed in all fifteen (15) cases, contending that the state law claims in Counts II-V (in some .cases, Counts II-VI and in some cases, Counts II-YII). should be dismissed as preempted by the Price-Anderson Act claims asserted in Count I; (2) motions for summary judgment, filed in the first eleven (11) eases, contending, that Plaintiffs have failed to raise a genuine issue of material fact on the element of breach of duty (because average annual radioactive airborne, releases or uranium never exceeded the amounts set by 10 C.F.R. § 20.106); (3) motions for summary judgment, filed in the first eleven (11) cases, contending' that Plaintiffs have failed to present evidence regarding exposure and dose, as well ‘ as motions (filed with their reply brief) to have their statements of undisputed fact deemed admitted; (4) motions for summary judgment, filed in the first eleven (11) cases by Defendant Atlantic Richfield, contending that Plaintiffs have failed to demonstrate that it can be held liable as a successor in interest to NUMEC, as well as motions (filed with its reply brief) to have its statements of undisputed fact deeméd admitted; and (5) motions for summary judgment, filed in five of the cases, contending that Plaintiffs failed to comply with -the Court’s order of September 12, 2012, in that some of the Plaintiffs are continuing to allege exposure other than to inhalation of uranium from the Apollo facility, as well as motions (filed with their reply brief) to strike the supplemental affidavit of James Melius, M.D., DR. P.H. that Plaintiffs filed with their opposition to the motions. .

The Magistrate Judge’s ■. Report and Recommendation (Document No. 370 at 2:10cvl43), filed on May 7, 2015, recommended as follows: (1) that Defendants’ Motions for Judgment on the Pleadings Based on Price-Anderson Act Preemption be granted; (2> that Defendants’ - Motions for Summary Judgment Based on Plaintiffs’ Failure to Raise a Genuine Issue for Trial on Breach of Duty be granted; (3) that Defendants’ Motions for Summary Judgment Based on Plaintiffs’ Lack of Evidence Regarding Exposure and Dose be granted; (4) that Defendants’ Motions to Deem Admitted Rule 56.B.1 Statement of Undisputed Facts in Support of Summary Judgment Based on Plaintiffs’ Lack of Evidence Regarding Exposure and Dose be granted; (5) that Defendant Atlantic Rich-field Company’s Motions for Summary Judgment Based on No Shareholder Liability be denied as moot; (6) that Defendant Atlantic Richfield Company’s Motions to Deem Admitted Its Local Rule 56.B.1 Statement .of Undisputed Facts in Support of. Summary Judgment Based ,on No Shareholder Liability be denied as moot; (7) that Defendants’ Motions for Summary Judgment Due to Plaintiffs’ Failure to Comply With the Court’s September 12, 2012 Order be denied as moot; and (8) that Defendants’ Motions to Strike the Supplemental Affidavit of James Melius, M-D., DR. P.H. be denied as moot.

Plaintiffs’ filed Objections to the Report and Recommendation in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (CL and Rule 72.D.2 of the Local Rules of Court. After a comprehensive review of the record of these cases, and upon consideration of the Magistrate Judge’s Report and Recommendation, and the Objections thereto, the Court will adopt the Report and Recommendation as the Opinion of this Court.

Accordingly

Order op Court

AND NOW, this 15th day of September, 2015, upon consideration of the motions set forth above,

IT IS HEREBY ORDERED as follows:

Act Preemption (Document No. 308 (1) Defendants’ Motions 'for Judgment on the Pleadings Based on Price-Anderson at at at at at at at at at at at at 2:10cvl43; 2:10cv368; 2:10cv650; 2:10cv728; 2:10cv744; 2:10cv908; 2:10cvl736 2:llcv898; 2:llcvl381 2:12cvl221 2:12cvl459 No. No. No. No. No. No. No. • No. No. No. No. 265 259 273 276 295 266 205 187 137 134 53 Document Document Document Document Document Document Document Document Document Document Document 2:13cvl86; Document No. 40 at 2:13cv704; Document No. 31 at 2:13cvl527; and Document No. 19 at 2:14cv639) are GRANT-

Defendants’ Motions for Summary Judgment Based on Plaintiffs’ Failure to Raise a Genuine Issue for Trial on Breach of Duty (Document No. 314 at 2:10cvl43; Document No. 267 at 2:10cv368; Document No. 269 at 2:10cv650; Document No. 275 at 2:10cv728; Document No. 282 at' 2:10ev744; Document No. 305 at 2:10cv908; Document No. 272 at 2:10cvl736; Document No. 207 at 2:llcv898; Document No. 189 at 2:llcvl381; Document No. 139 at 2:12cvl221; and Document No. 136- at 2:12cvl459) are GRANTED;

(3)Defendants’ Motions for Summary Judgment Based on Plaintiffs’ Lack of Evidence Regarding Exposure and Dose (Document No. 318'at 2:10cvl43; Document No. 275 át 2:10cv368; Document No. 273 at 2:10cv650; Document Ño. 279 at 2:10cv728; Document No. 286 at 2:10ev744; Document No. 309 at 2:10cv908; Document No. 276 at 2:10cvl736; Document No. 216 at 2:llcv898; Document No. 193 at 2:llcvl381; Document No. 143 at 2:12cvl221; and Document No. 140 at 2:12cvl459) are GRANTED;

(4) Defendants’ Motions to Deem Admitted Rule 56.B.1 Statement of Undisputed Facts in Support of Summary Judgment Based on Plaintiffs’ Lack of Evidence Regarding Exposure and Dose (Document No. 361 at 2:10cvl43; Document Ño. 320 at 2:10ev368; Document No. 323 at 2:10cv650; Document No. 324 at 2:10cv728; Document No. 338 at 2:10cv744; Document No. 363 at 2:10cv908; Document No. 325 at 2:10cvl736; Document No. 268 at 2:llcv898; Document No. 237 at 2:llcvl381; Document No. ' 178 at 2:12cvl221; and Document No. 175 at 2:12cvl459) are GRANTED;

(5) Defendant Atlantic Richfield Company’s Motions for Summary Judgment Based on No Shareholder Liability (Document No. 310 at 2:10cvl43; Document No. 279 at 2:10cv368; Document No. 277 at 2:10cv650; Document No. 283 at 2:10cy728; Document No. 290 at 2:10cv744; Document No. 313 at 2:10cv908; Document No. 280 at 2:10cvl736; Document No. 220 at 2:llcv898; Document No. 197 at 2:llcvl381; Document No. 147 at 2:12cvl221; and Document No. 144 at 2:12cvl459) are DENIED as moot;

(6) Defendant Atlantic Richfield Company’s Motions to Deem Admitted Its Local Rule 56.B.1 Statement of Undisputed Facts in Support of Summary Judgment Based on No Shareholder Liability (Document No. 358 at 2:10cvl43; Document No. 317 at 2:10cv368; Document No. 320 at 2:10cv650; Document No. 320 at 2:10cv728; Document No. 333 at 2:10cv744; Document ■ No. 357 at 2:10cv908; Document No. 319 at 2:10evl736; Document No. 262 at 2:llcv898; Document No. . 231 at 2:llevl381; Document No. 172 at 2:12cvl221; and Document No. 169 at 2:12cvl459) are DENIED as moot;

(7) Defendants’ Motions' for Summary-Judgment Due to Plaintiffs’ Failure to Comply With the Court’s September 12, 2012 Order (Document No. 265 at 2:10cv650; Document No. 278 at 2:10cv744; Document No. 301 at 2:10cv908; Document No. 268 at 2:10cvl736; and Document No. 209 at 2:llev898) are DENIED as moot; and

(8) Defendants’ Motions to Strike the Supplemental Affidavit of James Melius, M.D., DR. P.H. (Document No. 310 at 2:10cv650; Document Ño. 325 at 2:10cv744; Document No. 350 at 2:10cv908; Document No. 312 at 2:10cvl736; and Document No. 255 at 2:llcv898) are DENIED as moot.

IT IS FURTHER ORDERED that Judgment is entered in favor of Defendants, Babcock & Wilcox Power Generation Group, Inc., B & W Technical Services, Inc. and Atlantic Richfield Co. and against Plaintiffs in cases 2:10evl43; 2:10ev368; 2:10cv650; 2:10cv728; 2:10cv744; 2:10cv908; 2:10cvl736; 2:llcv898; 2:llcvl381; 2:12cvl221; and 2:12cvl459. The Clerk shall mark these cases closed.

IT IS FURTHER ORDERED that the Report and Recommendation (Document No. 370 at 2:10cvl43) of Magistrate Judge Robert C. Mitchell, dated May 7, 2015, is hereby ADOPTED as the Opinion of the Court.

REPORT AND RECOMMENDATION

ROBERT C. MITCHELL, United States Magistrate Judge.

I. Recommendation

It is respectfully recommended that Defendants’ Motion for Judgment on the Pleadings on Counts Two Through Five/Six/Seven Based on Price-Anderson Act Preemption be granted. It is further recommended that Defendants’ Motion for Summary Judgment Based on Plaintiffs’ Failure to Raise a Genuine Issue for Trial on Breach of Duty be granted. It is further recommended that Defendants’ Motion for Summary' Judgment Based on Plaintiffs’ Lack of Evidence Regarding Exposure and Dose be granted and that Defendants’ Motion to Deem Admitted Rule 56.B.1 Statement of Undisputed Facts in Support of Summary Judgment Based on Plaintiffs’ Lack of Evidence Regarding Exposure and Dose be granted. It is further recommended that Defendant Atlantic Richfield Company’s Motion for Summary Judgment Based on No Shareholder Liability be dismissed as moot and that Defendant Atlantic Richfield Company’s Motion to Deem Admitted Its Local Rule 56.B.1 Statement of Undisputed Facts' in Support of Summary Judgment Based on No Shareholder Liability' be dismissed as moot. It is further recommended that Defendants’ Motion for Summary Judgment Due to Plaintiffs’ Failure to Comply With the Court’s September 12, 2012 Order be dismissed as moot and that Defendants’ Motion to Strike the Supplemental Affidavit of James Melius, M.D., DR. P.H. be dismissed as moot.

II. Report

Plaintiffs brought the fifteen above-captioned actions alleging that Defendants, Babcock & Wilcox Power Generation Group, Inc., B & W Technical Services, Inc. and Babcock & Wilcox Technical Services Group, Inc. (together, “B & W”) and Atlantic Richfield Co., as successors in interest to the Nuclear Materials Corporation (“NUMEC”), are responsible for the release of radioactive, hazardous and toxic substances into the environment surrounding two nuclear materials processing facilities located in the Borough-of Apollo and in Parks Township, Pennsylvania, during the operation, remediation and/or decommissioning of these facilities. Plaintiffs (at present, approximately 138 individuals who lived and/or worked in the area near the plants) allege that the releases have contaminated the air, soil,- surface water and ground water in the surrounding communities and caused them personal injuries.and property damages.

Plaintiffs assert jurisdiction under the Price-Anderson Act, 42 U.S.C. § 2210(n)(2), and- the Atomic Energy Act, 42 U.S.C. § 2011, and also assert state law claims of negligence, negligence per se, strict liability,. civil conspiracy, misrepresentation and- concealment* and wrongful death and survival, for which supplemental jurisdiction is asserted pursuant to 28 U.S.C. § 1367(a). As a result of the. discovery process, one facility (Parks) has been eliminated, and only perspnal injuries that can be linked to inhalation of enriched uranium (“EU”) released from the Apollo facility during. its period, of. operation (1957-1983) are still at issue in these cases.

Currently pending before the Court are the following motions- filed by the Defendants: 1) a motion for judgment on the pleadings, filed in all fifteen of the cases, contending that the state law claims in Counts II-V (in some cases, Counts II-VI and in some cases, Counts II — VTI) should be dismissed as preempted by the Price-Anderson Act claims asserted in Count I; 2) a motion for summary judgment, filed in the first .eleven cases, contending that Plaintiffs have failed-to raise a genuine issue of material fact on the element of breach of duty (because average annual radioactive airborne releases or uranium never exceeded the amounts set by 10 C.F.R. § 20.106); 3) a motion for summary judgment, filed in the first eleven eases, contending that Plaintiffs have failed to present evidence regarding exposure and dose, as well as a motion (filed with their reply brief)- to have their statements of undisputed fact deemed admitted; 4) a motion for summary judgment, filed in the first eleven cases by Defendant Atlantic Richfield, contending that Plaintiffs have failed to demonstrate that it can be held liable as a successor in interest to NU-MEC, as well as a motion (filed with its reply brief) to have its statements of undisputed fact , deemed admitted; and 5) a motion for summary judgment, filed in five of the cases, contending that Plaintiffs failed to comply with the Court’s order of September 12, 2012, in that some of the Plaintiffs are continuing to allege exposure other than to inhalation of uranium from the Apollo facility, as well as a motion (filed with their reply brief) to strike the supplemental affidavit of James Melius, M.D., DR. P.H. that Plaintiffs filed with their opposition to the motion.

. For the reasons that follow, the motion for judgment on the pleadings should be granted, the motion for summary judgment based on Plaintiffs’ failure to raise a genuine issue for trial on breach of duty should be granted,- and the motion for summary- judgment based on Plaintiffs’ lack of evidence regarding exposure and dose should be granted (as well as the motion to have Defendants’ facts related to this motion deemed admitted). The remaining motions should be dismissed as moot.

Procedural History

The first case, McMunn v. Babcock & Wilcox Power Generation Group, Inc., No. 10-143, was filed on January 29, 2010 and assigned to Judge Cercone. Subsequently, ten additional cases were filed and assigned to various district judges. The. undersigned volunteered to conduct common discovery on these cases and status conferences were held to set discovery deadlines and resolve issues that arose. On January 24, 2012, a Case Management Order was entered (ECF No. 109), which required Plaintiffs to provide Defendants with admissible evidence establishing the prima facie elements of their individual claims. After this occurred, Defendants filed motions seeking to limit Plaintiffs’ cases based upon the alleged failure to submit such evidence. Pursuant to an order entered on September 12, 2012 (ECF, No. 161) and thereafter affirmed by all the district judges, the motions were granted in part and denied in part and Plaintiffs’ claims were limited to theories of exposure based upon inhalation of EU released from the Apollo facility during its period of operation.

A. twelfth case, Ament v. Babcock & Wilcox Power Generation Group, No. 13-186, was filed on February 5, 2013. A thirteenth case, West v. Babcock & Wilcox Power Generation Group, No. 13-704, was filed on May 20, 2013. A fourteenth case, Talmadge v. Babcock & Wilcox Power Generation Group, No. 13-1527, was filed on October 14, 2013. Finally, a fifteenth case, Culp v. Babcock & Wilcox Power Generation Group, No. 14-639, was filed on May 16, 2014. Orders have been entered in these four more recent cases reassigning the undersigned as magistrate judge and Judge Cercone as the district judge during the pendency and resolution of the Daubert motions and any motions for summary judgment that are filed and applying the September 12, 2012 Memo-, randum and Order to the cases.

■ In March 2013, cross-motions to exclude expert opinions were filed pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The motions were briefed and a hearing was held on April 30 and May 1, 2013 (ECF Nos. 264-265). On July 12, 2013, a Report and Recommendation was filed (ECF No. 271), which recommended that Plaintiffs’ motions be denied and that Defendants’■ motions (other than the motion to exclude the damages expert) be granted. However, upon review, Judge Cercone filed a Memorandum Opinion and Order on February 27, 2014 (ECF No. 283), in which he declined'to adopt the Report and Recommendation and instead denied the Defendants’ motions. Although the Court certified the' matter for interlocutory appeal (ECF No. 298), on June 6, 2014, the Court of Appeals for the Third Circuit denied permission to appeál and the cases, which had been closed, were reopened (ECF No. 300). The parties then attended a mediation on July-30, 2014, which was unsuccessful, and engaged in discovery.

On October 17, 2014, Defendants filed the motions currently under consideration. Plaintiffs filed their responses to the motions on' December 5, 2014, and Defendants filed reply briefs on January 8, 2015. Plaintiffs filed a résponse in opposition to the motion to strike th¿ supplemental affidavit of Dr. Melius on January 22, 2015. They did not file-responses to the two motions to have Defendants’ undisputed facts deemed admitted.

-The Hall Case

In 1994, a prior case, captioned Hall v. Babcock & Wilcox Co., No. 94-951 (“the Hall case”), was filed arising out of similar claims. Over 500 plaintiffs sued B & W and Atlantic ’Richfield,'alleging personal injuries and/or property damages arising out of emissions released from Apollo and Parks. In August 1998, Judge Ambrose presided over a jury trial of eight sample plaintiffs which resulted in a verdict for them. However, afterward the defendants filed a motion for a new trial, which Judge Ambrose granted on June 29, 1999. See Hall v. Babcock & Wilcox Co., 69 F.Supp.2d 716 (W.D.Pa.1999). In 2000, B & W filed a voluntary petition for-protection under Chapter 11 of,the.Bankruptcy Code and all proceedings against it were stayed. The plaintiffs reached a settle-, ment with Atlantic Richfield, which Judge Ambrose approved on March 18,. 2008. Finally, the plaintiffs reached a settlement with the reorganized B & W, which Judge Ambrose approved on April 17, 2009. This background is relevant because some of the issues raised herein were raised in the Hall litigation and some of the evidence was presented in the Hall case, as will be discussed below.

Price-Anderson Act Preemption

Defendants move for judgment on the pleadings with respect to all of the state law claims (Counts II-V in some cases, Counts II-VI in others and Counts II-VII in still others) on the ground that they are preempted by the Price-Anderson Act claims in Count I. Plaintiffs respond that the state law claims may be maintained, either as consistent with the Price-Anderson Act claims or as sub-parts of a Public Liability Action (PLA). For the reasons that follow, Defendants’ motion for preemption should be granted and the state law claims dismissed.

Standard of Review

The Supreme Court has issued two decisions that pertain to the standard of review for a motion to dismiss for failure to state a claim upon which relief could be granted under Federal Rulé of Civil Procedure 12(b)(6). The Court held that a complaint must include factual allegations that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “[WJithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice’ but also the ‘grounds’ on which the claim rests.” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir.2008). In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements;” “labels and conclusions;” and “ ‘naked assertion^]’ devoid of ‘further factual enhancement;’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citations omitted). Mere “possibilities” of misconduct áre insufficient. Id. at 679, 129 S.Ct. 1937. District courts are required to engage in a two part inquiry:

First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal conclusions____ Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show the plaintiff has a “plausible claim for relief.” ... In other words, a complaint must do more than allege the plaintiffs entitlement to relief. A complaint has to “show” such an entitlement with its facts.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009) (citations omitted).

A motion for judgment on the pleadings under Rule 12(c) is treated in the same manner as a motion to dismiss for failure to state a claim upon which relief may be granted. The court should “accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the non-movant.” Revell v. Port Auth. of NY & NJ, 598 F.3d 128, 134 (3d Cir.2010) (citing Turbe v. Government of the V.I., 938 F.2d 427, 428 (3d Cir.1991)).

As the Court of Appeals has explained, the Priee-Anderson Act (PAA), as amended in 1988, provides a federal cause of action for “public liability actions,” and defines “public liability’ as “any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation,” except for certain claims covered by workers’ compensation, incurred in wartime or that involve the licensed property where the nuclear incident occurs. In re TMI Litig., 193 F.3d 613, 625 & n. 9 (3d Cir.1999) (citing 42 U.S.C. § 2014(w)). The Act defines the term “nuclear incident” as:

any occurrence,' including an extraordinary nuclear occurrence ... causing ... bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material.]

42 U.S.C. § 2014(q). “Source material” includes uranium and uranium ore. 42 U.S.C. § 2014(z).

The Act provides that “the substantive rules of decision , in [any public liability action] shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of [the Act].” 42 U.S.C. § 2014(hh). See El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 484 n. 6, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999) (noting that the structure of the Act, “in which, a public liability action becomes a federal, action, but one decided under substantive state-law rules of decision that do not -conflict with Price-Anderson Act ... resembles what we have spoken of as 'complete pre-emption doctrine,’ under which ‘the pre-emptive force of a statute is so “extraordinary that it converts an,.ordinary state- common-law complaint into one- stating a federal claim for purposes of the well-pleaded complaint rule.’ ” (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987))). However, the standard of care is defined by the relevant federal nuclear -regulations promulgated by the Nuclear Regulatory Commission (NRC). In re TMI Litig. Cases Consolidated II, 940 F.2d 832, 859 (3d Cir.1991) (“states are preempted from imposing a non-federal duty in tort, because any state duty would infringe upon pervasive federal regulation in the field of nuclear safety, and thus would conflict with federal law.”) Indeed, a “claim growing out of a nuclear incident is compensable under the terms of the Amendments Act or it is not compensable at all.” Id. at 854.

In the TMI case, residents of the area around the Three Mile Island nuclear power plant brought suit alleging that the reactor accident on March 28, 1979 released radiation into the environment, causing them-to develop neoplasms (unusual 'tissue growths). The plaintiffs brought suit under the PAA, -the defendants raised Daubert challenges to the plaintiffs’ experts, the district court excluded the overwhelming majority of the proposed ■ experts’ testimony as to ■ dose exposure and the defendants then moved for'and obtained summary judgment in their favor. The Court of Appeals affirmed. 193 F.3d at 722-23.

In an earlier part of the case, the plaintiffs argued that the Third Circuit had left open the question of whether state tort law was preempted. < The district court rejected this argument, In re TMI, 904 F.Supp. 379, 382 n. 2, 394 (M.D.Pa.1994), and the Court of Appeals agreed: “TMI II definitively resolved the issue of whether federal law preempts state tort law on the standard of care;” In re TMI, 67 F.3d 1103, 1107 (3d Cir.1995). Specifically, the court held that “federal law. determines the standard of care and preempts state tort law.” Id.

Other courts have agreed. See In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1003 (9th Cir.2008); Roberts v. Florida Power & Light Co., 146 F.3d 1305, 1308 (11th Cir.1998); Nieman v. NLO, Inc., 108 F.3d 1546, 1552-53 (6th Cir.1997); O’Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1100 (7th Cir.1994) (relying on TMI). But see Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1142-44 & n. 19 (10th Cir.2010) (distinguishing all of these cases on the ground that they relied on field preemption, which the defendants in Cook did not raise, arguing instead conflict preemption).

Defendants contend that all of Plaintiffs’ state law claims are predicated upon a liability standard that is inconsistent with the PAA. Plaintiffs contend that the Act merely “alters state tort law,” but does not supplant it altogether. However, the case they cite in support of this proposition, Nieman v. NLO, Inc., 108 F.3d 1546, 1552 (6th Cir.1997), actually held that the plaintiffs state law claims were preempted and could not stand as separate causes of action. They also cite Rainer v. Union Carbide Corp., 402 F.3d 608 (6th Cir.2005), to support the contention that state law should determine whether plaintiffs have been injured. But in that case (and several others addressing the issue), the court merely held that, under its prediction of Kentucky law, no tort exists for mere allegations of cellular damage due to radiation when the plaintiffs have no actual sickness and .thus no “bodily injury,” It is further noted that, to the extent that Rainer held that state law determines whether the plaintiffs have been injured, it has been criticized. See Dumontier v. Schlumberger Tech. Corp., 543 F.3d 567, 570 (9th Cir.2008) (“Unlike the Sixth Circuit, we have never relied on state law to interpret ‘bodily injury.’ ”) Of course, this Court is required to follow. Third Circuit precedent, regardless of how the Ninth and Sixth Circuits ultimately resolve this issue.

Plaintiffs suggest that their state law causes of action are consistent with liability under the PAA, but have not specifically explained how this is so. Moreover, as Defendants note, Plaintiffs take -the opposite position in their response to the motion for summary judgment on the issue of duty, in which they argue that Defendants “have simply failed to come forward with any factual or legal argument justifying the dismissal of Plaintiffs’ other tort claims, those that do not require that Plaintiffs’ [sic] prove .that Defendants breached the standard of care in order to prevail.” (EOF No. 339 at 36.)

Thus, the law is clear that Plaintiffs cannot maintain state law claims in addition to their PAA claims. As a result, the question presented is whether any of the Plaintiffs’ state law claims are consistent with the PAA. To the extent that they are, they could serve as the standard of care, but to the extent they are npt, only the federal regulations can be cited.

Negligence Claims

Plaintiffs allege claims of negligence, which under Pennsylvania law, require, a plaintiff to demonstrate that the defendant “owed a duty of care to the plaintiff,, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damages.” Martin v. Evans, 551 Pa. 496, 711 A.2d 458, 461 (1998) (citations .omitted). Plaintiffs assert that Defendants owed a number of duties, including a “duty to prevent the discharge of such substances which might harm” the persons, property or economic interests of Plaintiffs (Am. Compl. ¶ 36); a “duty to warn” (id.); and a “duty to comply with applicable state, federal, and local governmental laws, regulations, and guidelines.” (Id, ¶37). But Defendants counter that the only duty of care applicable under the PAA is established by 10 C.F.R. § 20.106, and that any other standard would conflict with the federal one. See Koller v. Pinnacle West Capital Corp., 2007 WL 446357, at *3 (D.Ariz. Feb. 6, 2007) (dismissing state law claims of negligence, loss of consortium and' strict liability and allowing the first two claims to proceed under the PAA, but only to the extent that the claims were based on the federal standard of care); TMI, 904 F.Supp. at 382 n. 2, 394 (dismissing Pennsylvania negligence claims as preempted).

Defendants have demonstrated that Plaintiffs’ allegation of negligence would import a standard other than § 20.106. Therefore, the negligence claims should be dismissed.

■ Negligence Per Se

To pursue a negligence per se claim under Pennsylvania law, Plaintiffs must establish a breach of a' legislative enactment which stands in as the applicable duty of care. Shamnoski v. PG Energy, Div. of S. Union Co., 579 Pa. 652, 858 A.2d 589, 601 (2004) (negligence per se requires a specific legislative enactment that “leave[s] little, question, that a person or entity found in violation of it deviated from a reasonable standard of care”). Defendants contend that Plaintiffs’ negligence per se claims list an assortment of federal and state statutes, but only one federal law inay be applied in this case to Defendants’ conduct — 10 C.F.R. § 20.106. They.argue that, insofar as. Plaintiffs’ negligence per se claims would allow any. legislative enactment or statutory “duty” other than the federally permissible limits to act as Defendants’ duty of care, it is preempted as inconsistent with the Act. See McClurg v. M.I. Holdings, Inc., 933 F.Supp.2d 1179, 1187 (E.D.Mo.2013) (holding that the PAA preempted state law claims, including for negligence per se); Adkins v. Chevron Corp., 960 F.Supp.2d 761, 768 (E.D.Tenn.2012) (negligence per se claim preempted in uranium exposure case brought by members of the public); TMI, 904 F.Supp. at 382 n. 2, 394 (dismissing Pennsylvania negligence per se claims as preempted). Therefore, the negligence per se claims should be dismissed.

Absolute or Strict Liability

Defendants argue that Plaintiffs’ absolute or strict liability claims are preempted because the very theory of “strict liability is inconsistent with the Price-Anderson Act and is unavailable to Plaintiffs.” O’Connor v. Boeing N. Am., Inc., 2005 WL 6035255, at *43-44 (C.D.Cal. Aug. 18, 2005). Strict liability theories are inconsistent with the Price-Anderson Act because they allow for the establishment of liability “without first establishing that [defendants] breached the federally-imposed permissible dose limits.” Koller, 2007 WL 446357, at *3 (granting motion to dismiss strict liability count); Wilcox v. Homestake Mining Co., 401 F.Supp.2d 1196, 1201 (D.N.M.2005) (dismissing absolute and strict liability claims because they were inconsistent with the PAA); McLandrich v. So. Cal. Edison Co., 942 F.Supp. 457, 465 n. 7 (S.D.Cal.1996) (noting that “applying the ‘ultrahazardous activities’ doctrine here would be clearly inconsistent with the Price-Anderson Act.”); Adkins, 960 F.Supp.2d at 766, 768 (same in uranium exposure case); TMI, 904 F.Supp. at 382 n. 2, 394 (dismissing Pennsylvania strict liability claims as preempted). Therefore, these claims should be dismissed.

Civil Conspiracy

A complaint for civil conspiracy is premised on a combination of people acting “with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose,” an overt act, and actual legal damage. McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 660 (Pa.Super.2000). Defendants argue that Plaintiffs’ state law conspiracy claims allow for the establishment of liability “without first establishing that [Defendants] breached the federally imposed permissible dose limits” and are therefore inconsistent with the PAA. See, e.g., Koller, 2007 WL 446357, at *3. Plaintiffs have not responded to this specific argument. Defendants have demonstrated that civil conspiracy claims would impose liability inconsistent with the PAA. Therefore, these claims should be dismissed.

Misrepresentation and Concealment

Four of the more recent cases (Civ. A. Nos. 13-186, 13-704, 13-1527 and 14-639) also contain a claim for misrepresentation and concealment. Defendants argue that the complaints in these actions attempt to allege the elements of negligent misrepresentation. See Second Am. Compl. Civ. A. No. 13-186 (ECF No. 30) ¶ 64. Negligent misrepresentation requires proof of: (1) a misrepresentation of a material fact; ' (2) made under circumstances in which the misrepresenter ought to have known of its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation. Bortz v. Noon, 556 Pa. 489, 729 A.2d 555, 561 (1999) (citations omitted). “Moreover, like any action in negligence, there must be an existence of a duty owed by one party to another.” Id. at 501, 729 A.2d 555.

Defendants contend that this cause of action would also allow them , to be held liable without requiring Plaintiffs to show that they breached the federal standard of care in these • actions.. Because, Congress “clearly intended to supplant all possible causes of, action when the factual prerequisite of the statute are met,” In re TMI II, 940 F.2d at 857, Plaintiffs cannot maintain a cause of action based on misrepresentation and concealment against Defendants, They also note in their reply brief that Plaintiffs failed to address this cause of action in their response. Therefore, these claims should be dismissed.

Wrongful Death and Survival

Finally, although pled as a separate cause of action, Plaintiffs seek derivative damages pursuant to one or more of their state law claims for the death of a claimant. In paragraph 59, for example, Plaintiffs claim that their “beneficiaries are entitled to recover damages for such wrongful death.” Defendants argue that, because Plaintiffs’ state law claims are preempted by and are inconsistent with the PAA, to the extent that any of Plaintiffs’ claims, are derivative of those claims, they must also fail as a matter of law. See, e.g., Roberts, 146 F.3d at 1308 (holding that because plaintiffs failed to allege breach of duty of. care, plaintiffs wife failed to state a cause of action for loss of consortium); Adkins, 960 F.Supp.2d at 767 (dismissing wrongful death claims as preempted).

Defendants have demonstrated.that all of Plaintiffs’ state law claims are preempted by the PAA and that they would impose liability in a manner, inconsistent with the standards under the Act. Therefore, the motions for judgment on the pleadings should be granted and the state law claims should be dismissed from all of the cases.

The remaining motions seek summary judgment on various grounds. They will be addressed in the following sequence: 1) the motion for summary judgment on Plaintiffs’ failure to establish a breach of duty; and 2) the motion for summary judgment on Plaintiffs’ failure to establish exposure and dose.

Summary Judgment, Standard of Review

As amended effective December. 1, 2010, the Federal Rules of Civil Procedure provide that: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party’s case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying, evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the non moving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

• In following this directive, a court must take the facts in the light most favorable to the non-moving party, and must draw all reasonable inferences and resolve all doubts in that party’s favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 266 (3d Cir.2005); Doe v. County of Centre, Pa., 242 F.3d 437, 446 (3d Cir.2001).

Breach of Duty

Defendants contend that Plaintiffs have failed to raise a genuine issue for trial on the issue of breach of duty because they have not proffered evidence that the average annual federal permissible release limits for uraniuxn were ever exceeded. Plaintiffs respond that this Court (in denying Defendants’ Daubert motions) and the Hall court have both repeatedly rejected this argument. They also note that Defendants are utilizing the limit applicable for insoluble releases of- uranium, but because the facility also released other radionuclides to the air (including particularly Plutonium-«239), the applicable limit (the one for the radionuclide in -the mixture having the lowest concentration limit) is much lower and was clearly exceeded. They argue that Defendants treat the roof of the Apollo plant as a “restricted area” but that the'.evidence raises genuine issues of fact about whether it was a restricted area, and if it was an unrestricted area, the concentrations would unquestionably have been too high. Finally, they contend that Defendants misapply the regulation by measuring the amount at the boundary rather than at the stacks themselves.

In a reply brief, Defendants reiteráte that the measurement’ was properly made at the facility’s boundary (and the roof was a restricted area), not at the stacks (and thus, records of uranium concentrations at the stacks above the Appendix B limits are immaterial), that Plaintiffs have presented only short-term examples of the concentrations exceeding limits, not average annual amounts as required by the Regulation, and that alleged violations not involving airborne uranium aré irrelevant. They note that this Court was not called upon to rule on the issue of whether Plaintiffs’ expert’s opinion was sufficient previously, but only to determine whether his opinion “fit” the issue of causation. Finally, they contend that, in the Hall case, Judge Ambrose erroneously interpreted ambiguous trial testimony as addressing violations of § 20.106 when it was actually discussing releases of effluent at the stacks within the restricted area. .,

Standard for Breach of Duty

In TMI, the Court of Appeals held that, to maintain a claim under the PAA, the plaintiffs'had to show that:

.(1) the defendants released radiation into the environment in excess of the levels permitted by federal regulations in effect in 1979, i.e., 0.5 rems (500 mrems) or 5 mSv; (2) the plaintiffs-were exposed to this radiation (although not necessarily at levels prohibited by those regulations); (3) the plaintiffs have injuries; and (4) radiation was the cause of those injuries. We have also held that the “exposure element requires that plaintiffs demonstrate,-they have been exposed to a greater extent than anyone else, i.e., that their exposure levels exceeded the normal background ■ level.”

193 F.3d at 659 (citing In re TMI, 67 F.3d at 1119). The defendants in TMI conceded that they violated § 20.106; therefore “they violated their duty of care, thus satisfying" the first and second elements of a negligence action.” 67 F.3d at 1118 (footnote and citation omitted). Defendants herein have not made this concession, but vigorously contest that they violated § 20.1006.

The Atomic Energy Act of 1946 established the Atomic Energy Commission (AEC) to manage the nation’s nuclear energy program. In 1954, Congress amended the Act to authorize the AEC to license private companies for nuclear fuel production and to issue regulations that would protect the public’s health and safety from radiation hazards related to those activities. In 1957, the sanie year that NU-MEC received a license for nuclear fuel fabrication at the Apollo facility, the AEC adopted regulatory “Standards for Protection against Radiation” as Part 20 of 10 C.F.R. Chápter 1. (Knapp Decl. ¶ 7.) The regulatory standard applicable to the emission of radionuclides in airborne effluent to off-site areas where they may be inhaled by members of the public during the period when the Apollo facility operated (1957-1983) was 10 C.F.R. § 20.106, “Radioactivity in effluents to unrestricted areas.” It provided that:

[N]o licensee shall ... release into air or water in any unrestricted area any concentration of radioactive material in excess of the limits specified in Appendix B, Table II of this pari. For purposes of this paragraph, concentrations may be averaged over periods not greater than one year.

Appendix B, Table II of Part'20 specified numeric concentration limits for more than a hundred different radioisotopes, including uranium, in airborne effluent. ■

Defendants aver that those numeric limits were set in accordance with expert scientific advice on the air concentration of the radionuclide that can be inhaled by an individual continuously — 24 hours/day for 365 days/yeár — without resulting in a dose of 0.5 rem of radiation, thus providing “a conservative standard of safety.” See Miscellaneous Amendments, 25 Fed.Reg. 8595, 8595 (Sept. 7, I960). The limits, although protective of health, permit sustained releases at low concentrations. The regulation represents “the considered judgment of the relevant regulatory bodies — the Federal Radiation Council; EPA, AEC, and NRC — on the appropriate levels of radiation to which the general public may be exposed.” In re TMI, 67 F.3d at 1113-14 (footnote and citation omitted).

During 1957-60, a period in which the Apollo facility was in start-up mode, the Appendix B, Table II limit for any isotope of uranium was 1.7 x 10 microcuries of radioactivity per milliliter of air. (Knapp, Decl. ¶ 13.) See 22 Fed.Reg. at 554 (publishing Appendix B, n.- 3). Beginning in 1961, the limit for the primary isotopes of uranium was 4 x 10 microcuries/milliliter for U-234 or U-235 in insoluble form, and 20 x 10 microcuries/milliliter for U-234 or U-235 in soluble form. (Knapp Decl. ¶ 13).

The tqym “unrestricted- area” in Section 20.106 is defined as an area “access to which is not controlled by the licensee for purposes of protection of individuals from exposure to radiation and radioactive materials.” - 10 C.F.R. § 20.3(17) (1967) (Knapp Decl. ¶10.) By contrast, a restricted area “means any area access to which is controlled by the licensee for purposes of protection of individuals from exposure to radiation and radioactive materials, and any area used for residential quarters.” 10 C.F.R. § 20.3(14) (1967). In re TMI, 67 F.3d at 1108 nn. 12-13, The court noted that § 20.106 limits “were intended to cover persons outside a nuclear plant’s boundaries, i,e., the general public.” Id. at 1114.

The 1957 and 1961 versions of- Section 20.106 provided that the determination of the average concentration of radioactive material in a facility’s effluent relative to the Appendix B, Table II limits “shall be made with respect to the point where such material leaves the restricted area.” See 22 Fed.Reg. at 551 -(publishing § 20.103(c)); 25 -Fed.Reg. at 10917 (publishing § 20.106(c)).- The 1964 revision reiterated that the concentration limits apply at the location.where material leaves the restricted area, and added language in § 20.106(d) clarifying the standard for a facility that discharges effluent .through, smokestacks located within its restricted premises:

For the purposes of this section the concentration limits in Appendix “B”, Table II of this part shall apply at the boundary of the restricted area. The concentration of radioactive material discharged through a stack, pipe or similar conduit may be determined with respect to the point where the material leaves the conduit. If the conduit discharges within the restricted area, the concentration at the boundary may be determined by applying appropriate factors for dilution, dispersion, or decay between the point of discharge and the boundary.

Radioactivity in Effluents to Unrestricted Areas, 29 Fed.Reg. at 14434-14435.

Defendants maintain that the first sentence -of Section 20.106(d) explicitly recognizes that the facility’s boundary alone is where average emission concentration limits apply and. that the third sentence distinguishes between two different locations: (a) the “point of discharge”- of a stack or similar conduit discharging within a restricted area,-and (b) “the boundary” at which concentration limits apply. Facilities may measure concentrations at point “a’’ and then apply appropriate factors for dilution, dispersion or decay in order to calculate concentrations at point “b,” where limits apply. (Knapp Decl. ¶ 12.) Defendants state that substantial dilution occurs between a stack and a roof perimeter -because, material .emitted from a stack is mixed into a much larger volume of air flowing over the stacks. (Knapp Decl. ¶¶ 12, 20, 28.) They note that the AEC recognized this fact when, in 1969, it granted NUMEC a license to release effluent at individual, stacks at up to 100 times the Appendix B limit, so long as concentration limits were met at the boundaries. (Defs.’ App. Ex. 34.)

Plaintiffs note that the second sentence of § 20.106(d) indicates that the “concentration of radioactive material discharged through a stack, pipe or similar conduit may be determined with respect to the point where the material leaves the conduit.” They'argue that there are issues of fact' as to whether the point where the material left the conduit was in a restricted area or not and that Defendants cannot utilize the “appropriate factors” language from the third sentence in any .event because they did -not do so during the facility’s period of operation.

Defendants note that § 20.106 at all times provided that the concentration limits specified in Appendix B, Table II of Part 20 applied to concentrations averaged for periods up to one year. See, e.g., 10 C.F.R. § 20.106(a) (1967). They contend that averaging values over a year makes sense in light of the AEC’s adoption of concentration values in Appendix B considered safe even if inhaled continuously 24 hours a day for an entire year. Thus, even if the average concentration at the boundary on a particular day or series of days exceeded the limits set forth in Appendix B, the licensee would still be in compliance with Section 20.106 so long as the average concentration' over a period up to a year was below that level. The Court of Appeals held in TMI that “the duty of care is measured by whether defendants released radiation in excess of the levels permitted by §§ 20.105 and 20.106, as measured at the boundary of the facility....” 67 F.3d at 1117.

Facts as to Breach of Duty

In the operative complaint, each plaintiff asserts claims under the Price Anderson Act, alleging injury through inhalation of uranium released into the air, in violation of federal regulations, by the former nuclear fuels facility located in Apollo, Pennsylvania during the period of its operation, 1957-1983. (ECF No. 83 ¶¶ 1, 2, 12-28.) Defendants indicate that, in the course of the facility’s operations, uranium effluent was discharged through vents and stacks that opened onto its rooftop, at varying distances from the roof perimeter. (Defs.’ App. Ex. 26.) Plaintiffs indicate that, in addition, they have evidence that the plant released material through the use of incinérators,- sides of the facility and other uncontrolled/accidental processes. (Ring Rpt. at 9-13.) ■

Operations involving the production of nuclear fuel from uranium began at the Apollo facility on a small scale late in 1957, expanded in the 1960s, and continued to 1983. (Defs.’ App. Ex. 38.) Operations were conducted in a two-story facility building. (M at 7.) Work areas within the building not exposed to. uranium dust or gases were ventilated through unfiltered roof vents or small stacks opening onto the roof. (Defs.’ App. Exs. 16-18.) Production processes and areas involving uranium dust or gases were vented through other stacks fitted with high-efficiency, filters or chemical scrubbers which removed most radioactivity from the effluent. (Defs.’ App. Exs. 17, 36.) Those stacks also opened onto the roof. (Defs.’ App. Ex. 26.)

.•Despite the high-efflciency filters and scrubbers, it was recognized that stack emissions contained some amounts of radioactive uranium released to the outdoor air: (Knapp Deck ¶ 20.) ' Effluent containing uranium discharged from the stacks was subject to dilution as it mixed with ambient air and to dispersion as it was borne by the wind to the roofs perimeter and beyond. (Defs.’ App. Ex. 31.)

The Apollo nuclear facility was physically attached to -a local metal services business (called “Raychord”) and shared three common walls with that business. (Pis.’ App. Ex. 4 at 1.) The stacks on the Apollo building were not tall smoke-stacks — most did not reach above the peak of the. roof. (Pis.’ App. Ex. 4 at 3.)

The Apollo nuclear plant was also unusual because it was located in a building directly across the street from small businesses and a residential neighborhood. Former NUMEC health and safety director Roger Caldwell wrote in 1966 that “Houses crowd in as close as 200 feet and several hundred people live within a thousand yard half circle of the plant.” (Pis.’ App. Ex. 4 at 1.) Another former' health and safety director at NUMEC testified that the Apollo nuclear facility was the only nuclear facility located across the street from a neighborhood. (Reitler Dep. at 57-59 (agreeing that Apollo facility was unique in its proximity to the public, although one other facility was close to an industrial area)).

Defendants respond that the AEC knew and approved of the Apollo facility’s location. See, e.g., Pis.’ App. Ex. 5 (showing “Residential Area” on the map); Defs.’ App. Ex. 25 (renewed license). They .argue that the proximity of occupied premises to the boundary of the Apollo facility’s restricted area is immaterial,

■■Defendants state that Plaintiffs’ expert, Bernd Franke,. admitted that the boundary of the facility’s restricted area (as defined in 10 C.F.R. Part 20) was at or beyond the perimeter of its roof. (Jan. 7,2013 Franke Dep. at 131:2-12, 195:25-198:4, 199:18-200:4, 201:3-13.)' Plaintiffs contend that the roof of the Apollo facility was'an unrestricted area. Moreover, Plaintiffs do not agree that this fact is material to the issues- in this case because the point-of-discharge at the stacks is the place where compliance is to be measured in cases, like this, where dispersion analysis was not conducted during facility operations. These issues are discussed below.

Defendants contend that Plaintiffs have not identified any evidence showing that the concentration of uranium effluent at the boundary of the facility, or at any point beyond the boundary, as averaged over a particular year, exceeded 1.7 x 10~12 microcuries/milliliter during the period 1957-1960, or that it exceeded 4.0 x 10"12 micro-curies/milliliter during the period 1961-1983. Each time the AEC inspected the facility, regulators determined that emissions were within applicable annual concentration limits. (Knapp Decl. ¶ 21.)

Beginning in 1966, air sampling and monitoring was conducted at the facility roof edge. Four monitors were placed in four compass directions around the roof edge. In addition to these roof edge monitors, other monitors .were placed in nearby locations around the facility’s building. One off-site monitor was placed to the north, near the abutting office of thq neighboring plant. A second was placed to the east at an office building owned by NUMEC across the road from its facility building. A third was placed about 100 meters to the southwest at a nearby building called the “NDC.” Information regarding the roof edge and offsite monitors and their positioning was provided by NUMEC to the AEC, and the AEC indicated that it considered the roof edge sampling results, backed up'by the off-site monitoring, to represent the concentrations of effluent released to unrestricted areas. At various times, offsite monitors also were operated at other locations. About May. 1972, the number of roof edge monitors was increased to ten.

(Whipple Decl. ¶ 3 ; see also Defs.’ App. Ex. 35.)

Defendants note that, from 1966 to 1980, the roof-edge monitors recorded the concentration of radioactivity in airborne-effluent. The average annual concentration of uranium measured at each roof perimeter monitor was below 4 x 10-12 microcuries/milliliter in each of ■ those ■ years. (Whipple Decl. ¶¶ 3-4, 7 & Table 1.) Concentrations at nearby offsite locations were even lower, (Whipple Decl. ¶5 & Table 2.) See also Defs.’ App. Ex. 31.

• Defendants note that, in 1966, the AEC determined that the concentrations of effluents in releases from the facility to unrestricted areas were in compliance with AEC requirements, that the facility’s production as conducted at the time did not differ from that conducted-in the past, and that the facility’s releases of uranium occurring during past operations were probably also in compliance. (Defs.’ App. Ex. 26 at PDR-04-2470, 2473, 2478-80.) ,In reaching that conclusion, the AEC examined (a) average concentrations rather than daily concentrations and (b) concentrations at the roof perimeter rather than at stacks. (Id. at PDR-04-2478-79,) The AEC found that most of the stacks were discharging uranium at concentrations above the Appendix B limit and that on certain days that limit was exceeded even at the roof perimeter. (Id.) Nevertheless, it determined that the facility was in compliance with Section 20,106 because the average roof perimeter concentrations of uranium were within applicable íimits. (Id. at 4; Knapp Decl. ¶ 22.)

The AEC’conducted'a second comprehensive review of boundary emission concentrations in 1969 in connection with- its consideration, and ultimate approval, of the Apollo, facility’s -program to verify boundary concentration by continuous, direct monitoring- of radioactivity at the boundary as well as at.nearby points beyond the facility’s restricted area. NU-MEC installed the monitoring system in 1966, and over the next three years gathered and shared with AEC data on boundary and nearby off-site concentrations under - all operating conditions, all weather conditions, and in all directions. See Mar, 5, 1969 NUMEC Letter at 5-9 (enclosing wind rose, diffusion graph, and roof edge and environmental sampling data; May 26, 1969 AEC Letter, at 5-9 (enclosing same)). The data showed that the annual average concentrations of uranium at the boundaries were well within the Appendix B limits and that the concentrations at nearby off-site locations were far lower. See May 26, 1969 AEC Letter, at 6-9; Whipple Decl. ¶¶ 4-5, Tables 1 and 2. On May 26, 1969, having considered three years of monitoring data, the AEC formally granted NUMEC’s requested license amendment authorizing the roof perimeter/off-site .monitoring-based verification method. See May 26,1969 AEC Letter at 1-2. The AEC endorsed the roof perimeter monitoring as yielding results’ “adequately representative of the concentrar tions released to unrestricted areas” for purposes of determining compliance with Section 20.106. (Id. at 2.) Off-site' monitors were to provide a second level of assurance against releases to unrestricted areas in excess of the limits. (Id. at 1-2.)

Defendants further note that, in 1995, the NRC conducted a retrospective review of the facility’s releases of uranium to unrestricted areas, in response to complaints from residents of a nearby community, and determined that "releases from the facility were within 10 C.F.R. Part 20 requirements and within regulatory limits, including Section 20.106. (Knapp Decl. ¶ 23.) This result was published in the Federal Register, 1995 NRC Director’s Decision, 60 Fed.Reg. 35571, 35572-73 (July 10, 1995). In reaching this conclusion, the Director explained that “values set forth in 10 CFR Part 20, Appendix B, Table II, are the regulatory limits applicable at the site boundary, not at the stacks.”- (Id. at 35573 n. 8.)

Plaintiffs argue that these agency findings “relied wholly upon represéntations from NUMEC” that the agencies “never verified” the underlying facts. However, there is no‘support for the contention that a facility cannot demonstrate compliance with § 20.106 limits using its own monitoring data or that the agency evaluations were less than complete. Nor are they undermined by a 2008 NIOSH report (cited below) prepared in connection with proceedings to allow former workers to qualify for benefits" based on work history at Apollo.

Plaintiffs cite them expert, Bernd Franke, who has opined that: “stack effluent concentrations exceeded [NU-MEC’s] license requirements in all years between 1963 and 1973.” (Franke & Makhijani Rpt. at 27; see also Franke Aff. at 2.) Defendants respond that Franke did not opine that airborne releases from the Apollo facility exceeded 10 C.F.R. § 20.106 and Appendix B limits. Rather, his opinion as stated in the cited document relates to concentrations that purportedly exceeded “license requirements.” He opines that certain individual stack concentrations exceeded license requirements in the years 1963-73; no such opinion is given for the years 1958-62 or 1974-83. More importantly, they note that his opinion relates to concentrations at the stacks opening onto the restricted rooftop,’ not annual concentrations at the Apollo facility’s boundaries. In fact, Mr. Franke’s report acknowledges that, for most of the years during which the 'facility operated, offsite monitors showed average concentrations well below § 20.106 limits,. (Franke & Makhijani Rpt. at 33, Table 5.) And Defendants argue that Mr.’ Franke’s finding that a February 1963 vault fire might, have exposed members of the public who were present to a “lung dose” of in excess of 1.5 rem of radiation (Franke Prelim. Decl. ¶ 7) is irrelevant because neither § 20.105 nor §■ 20.106 contains such limits and Mr. Franke made no attempt to connect his hypothetical scenario calculation to any plaintiff in this case. (May 29, 2012 Franke Dep. at 69:25-70:8, 83:5-19, 130:5-18.) Plaintiffs have not responded to this argument.

Plaintiffs contend that, i