author: MORAN, District Judge.

text:
    UNITED STATES of America v. COMMONWEALTH EDISON COMPANY, Defendant.
    No. 84 C 1597.
    United States District Court, N.D. Illinois, E.D.
    Oct. 31, 1985.

      Elizabeth Stein, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
    A. Daniel Feldman, Isham, Lincoln & Beale, Chicago, Ill., for defendant.
   MEMORANDUM AND ORDER

MORAN, District Judge.

This case for injunctive and declaratory relief concerns Commonwealth Edison’s responsibility for cleaning up highly toxic polychlorinated biphenyls (PCBs) spilled from its electrical equipment, often in residential areas. Edison, impliedly at least, recognizes a responsibility to clean up spills, with a dispute over the extent of that responsibility. It argues, however, that the extent of its responsibility cannot be determined through the medium of this lawsuit as the issues are presently framed. This court disagrees.

I.

There is much to suggest that PCBs are both toxic and extremely persistent in the environment. See 47 Fed.Reg. 37342, 37344 (Aug. 25, 1982). The most visible effect of PCB exposure on humans is chloracne, a painful and disfiguring skin disorder. Id. Both prenatal and post-natal exposure to PCBs may have adverse effects on human reproduction and development. Id. PCBs can alter the reproductive processes in mammals, even at doses that do not otherwise cause other signs of toxicity. Id. Monkeys fed diets with PCB concentrations of less than ten parts per billion (ppb) have lower fertility rates and a higher incidence of stillbirths and birth defects. See Environmental Defense Fund v. E.P.A., 636 F.2d 1267, 1270 (D.C.Cir.1970). Other animal studies indicate that PCBs have an oncogenic (tumor-causing) potential. 47 Fed.Reg. at 37344. There is no evidence that this animal data is not predictive of the effects of PCBs on humans. Id.

PCBs also have adverse environmental effects, 47 Fed.Reg. at 37345. PCBs tend to concentrate in the aquatic environment and have a deleterious impact on a wide variety of aquatic life, ranging from phytoplankton to fish. Id. At sublethal levels PCB exposure lowers the reproductive success and survival rate of fish and leads to abnormalities in the development of bones and reproductive organs. Id. PCBs also impair the reproductive success of birds and mammals. Id. Concentrations below 1 ppb can impair the reproductivity of aquatic invertebrates and fish, while birds can suffer severe reproductive failure when fed diets containing only 10 ppb of PCBs. Environmental Defense Fund, 636 F.2d at 1270.

In addition to direct exposure, organisms can encounter harmful levels of PCBs through a process known as bioaccumulation. When a stable chemical is released into the environment bioaccumulation causes the chemical to be found at increased levels in organisms at each step up the food chain. PCBs, for example, are chemically stable and collect in waterways. They are found at relatively low levels in the unicellular phytoplankton at the bottom of the food chain. The PCBs are transferred up the food chain by the small invertebrates that consume the phytoplankton, the organisms that feed on the invertebrates, and so on, up to large fish and the humans who eat fish. The PCB level in organisms tends to increase at each step up the food chain. Mammals, including humans, are at the top of the food chain and can thus accumulate relatively high levels of PCBs in their flesh even while avoiding substantial direct exposure. See generally 47 Fed. Reg. at 37345; Environmental Defense Fund, 636 F.2d at 1270.

Toxic chemicals are often produced for socially beneficial purposes, and PCBs are no exception. Because of their chemical stability, fire resistance and electrical resistance properties, PCBs have been manufactured and used commercially for fifty years. Environmental Defense Fund, 636 F.2d at 1270. As of 1975, up to 400 million pounds of PCBs had entered the environment. Id. Approximately 25 to 30 per cent of this amount, or at least 100 million pounds, is free and circulating in the environment and is a direct source of contamination for wildlife and humans. Id.

Because of their fire resistance, PCBs are used extensively by electric utilities in transformers and capacitors. Transformers are used to transmit and distribute electric power efficiently. 47 Fed.Reg. at 37345. A small percentage of transformers known as PCB transformers are filled with a dielectric fluid containing between 60 and 70 per cent PCBs. Id. PCB transformers are located in secure indoor locations and electrical substations and are not at issue in this case. Id. Other transformers contain mineral oil dielectric fluid and have become contaminated with PCBs during manufacturing and servicing. Id. These mineral oil transformers are mounted on poles throughout electric service areas. This type of transformer is involved in this case. At the end of 1981 the electrical utility industry accounted for 20 million of the 25 million mineral oil transformers in use. Id. at 37345.

Mineral oil transformers account for only a small percentage of the PCBs released into the environment. Each year only .007 per cent of such transformers develop leaks that result in a PCB concentration of 50 parts per million (ppm) or more in the immediate surrounding area. 47 Fed.Reg. at 17430 (April 22, 1982). PCB releases from such transformers amount to 826 pounds annually, 0.21 per cent of the total amount released from electric utility equipment. Id. at 17428.

Capacitors are devices for improving the voltage and power factor of electrical power systems. They are mounted on utility poles and contain more than 3 pounds of dielectric fluid. 47 Fed.Reg. at 37347. Virtually all capacitors manufactured before 1978 were filled with a dielectric fluid with a PCB concentration near 100 per cent. Id. At the end of 1981 electric utilities had 2,800,000 capacitors in service. Id. at 37347-48.

Only .009 per cent of capacitors develop leaks each year that result in the contamination of 50 ppm or more of PCBs in the area immediately surrounding the spill. 47 Fed.Reg. at 17434. Capacitor leaks, however, amount in all to 369,251 pounds of PCBs each year. Id. at 17428. This amount represents 94.5 per cent of total annual PCB releases from electric utility equipment into the environment. Id. Unlike transformer leaks, however, which usually develop slowly as gaskets deteriorate, 47 Fed.Reg. at 17432, capacitors often rupture unexpectedly. About 63 per cent of the PCB capacitor spills result from the rupture of the capacitor cases. Id. These ruptures can spread large quantities of PCBs directly into the environment over a large area. Id.

Edison has approximately 40,000 capacitors containing dielectric fluid with concentrations of PCBs in excess of 500 ppm (Ans. II 5). The number of its pole-mounted mineral oil transformers and the level of PCBs in their dielectric fluid is unclear (Ans. 11 6). Between 60 and 100 of Edison’s capacitors rupture each year, with 100 ruptures occurring in 1983 (Ans. Tí 10). The number of transformer leaks has yet to be established (Ans. II11).

The government’s complaint focuses on seven capacitor ruptures and Edison’s response to the PCB contamination that resulted. According to the complaint, the seven cases followed a similar pattern. PCBs were sprayed around residential areas as a result of a capacitor rupture. Edison’s cleanup effort, often undertaken after substantial delay, was limited to removing visible traces of the spilled dielectric oil. Edison did not then test the sites to determine the effectiveness of the cleanup. Subsequent tests by the EPA determined that the sites remained contaminated, with PCB levels as high as 33,520 ppm. At least two individuals suffered skin rashes as a result of direct exposure to the spilled PCBs and others were left with measurable amounts of PCBs in their blood.

II.

In response to the dangers associated with the use of PCBs and other toxic chemicals, Congress enacted the Toxic Substances Control Act (TSCA), Pub.L. No. 94-469, 90 Stat. 2003 et seq. (1976). While the Act is directed at hazardous chemicals generally, PCBs are singled out for special attention in section 6(e) of the Act, 15 U.S.C. § 2605(e). No other chemical is covered by name in the Act. The special attention given PCBs in the Act resulted from congressional recognition of the extreme threat PCBs pose to human health and the environment. See generally Environmental Defense Fund, 636 F.2d at 1271.

Section 6(e) sets out a detailed plan to dispose of PCBs, to phase out the manufacture, processing and distribution of PCBs, and to limit the use of PCBs. Within six months of the effective date of the Act (Jan. 1, 1977), the Environmental Protection Agency (EPA) was required to prescribe methods to dispose of PCBs and mandate the labeling of PCB containers. 15 U.S.C. § 2605(e)(1). Beginning one year after the effective date, PCBs could only be manufactured, processed, distributed and used in a “totally enclosed manner.” Section 2605(e)(2)(A). Two years after the effective date all manufacture of PCBs was prohibited, § 2605(e)(3)(A)(i), and two and one-half years after the effective date all processing and distribution of PCBs in commerce was prohibited, § 2605(e)(3)(A)(ii).

Section 6(e) does contain exceptions to these prohibitions. The EPA administrator is permitted to authorize the use of PCBs in a non-totally enclosed manner if the proposed use would “not present an unreasonable risk of injury to health or the environment,” § 2605(e)(2)(B). A parallel provision permits the manufacture, processing and distribution of PCBs under some circumstances, § 2605(e)(3)(B). Presumably to ensure maximum regulatory effectiveness, Congress provided that

[tjhis subsection does not limit the authority of the [EPA] Administrator, under any other provision of this chapter or any other Federal law, to take action respecting any polychlorinated biphenol.

Section 2605(e)(5).

The EPA initially classified capacitors and mineral oil transformers as “totally enclosed,” automatically exempting them from regulation. The Court of Appeals of the District of Columbia Circuit found no substantial evidence in the record to support this classification and remanded the proposed regulations to the EPA for further proceedings. Environmental Defense Fund, 636 F.2d at 1284-1286. The EPA proposed new regulations with respect to transformers and capacitors on April 22, 1982. See 47 Fed.Reg. 17426 et seq. It promulgated these regulations in final form on August 25, 1982. See 47 Fed.Reg. 37342 et seq.

The regulations result from the EPA’s balancing the health and environmental risks posed by the continued use of PCBs in transformers and capacitors against the cost of various regulatory alternatives. The regulations permit the continued use of mineral oil transformers for the remainder of their useful life. 40 C.F.R. § 761.-30(a). The regulations also permit the continued use without restriction of capacitors on outside poles until October 1,1988. Section 761.30(1). At that point pole-mounted capacitors are banned. Section 761.-30(l)(ii).

In addition to restrictions on the use of various kinds of electrical equipment, the regulations prescribe detailed requirements for the disposal of PCBs. These requirements cover the disposal of PCBs generally, § 761.60(a)(1), mineral oil dielectric fluid, § 761.60(a)(2), non-liquid PCBs in the form of contaminated soil, rags or other debris, § 761.60(a)(4), PCB capacitors, § 761.60(b)(2), and PCB-contaminated electrical equipment, § 761.60(b)(4). Disposal is by incineration, § 761.70, or by confinement in a chemical waste landfill, § 761.76.

The regulations emphasize that the spillage of PCBs is a form of disposal. In the definitions section of the regulations, “disposal” is defined as including spills and leaks:

“Disposal” means intentionally or accidentally to discard, throw away or otherwise complete or terminate the useful life of PCBs and PCB Items. Disposal includes spills, leaks, and other uncontrolled discharges of PCBs as well as actions related to containing, transporting, destroying, degrading, decontaminating, or confining PCBs and PCB Items.

40 C.F.R. § 761.3. In the section outlining disposal requirements for a wide variety of items, “spills” are included as a form of disposal:

Spills.
(1) Spills, leaks and other uncontrolled discharges of PCBs constitute the disposal of PCBs.
(2) PCBs resulting from the cleanup and removal of spills, leaks, or other uncontrolled discharges, must be stored and disposed of in accordance with paragraph (a) of this section.

40 C.F.R. § 761.60(g).

The regulations do not prescribe any method of cleaning up spills from mineral oil transformers or capacitors. The regulations also do not contain any explicit standards for the extent of the cleanup required after the spill or leak of PCBs from electrical equipment. The draft regulations had contained such cleanup standards. 47 Fed.Reg. at 17441. These regulations would have required cleanups to pre-spill PCB levels where the spill posed a threat of contamination to water, food, feed or humans, and a cleanup to levels under 50 ppm otherwise. Id.

In its announcement of the final PCB regulations, the EPA discussed its disposal requirements in the event of a spill and, in a cryptic passage, stated why the cleanup standard had been dropped:

The proposal also contained requirements for cleanup of PCB contamination resulting from spills, leaks, and other uncontrolled discharges of PCBs. Comments in response to these provisions varied. Some comments stated that a requirement for level of cleanup should be set, but that cleanup to a concentration of 50 ppm was always appropriate. Other comments expressed concern about setting any specific requirements for level of cleanup at this time and about how these levels would be determined in the field. Still others approved of the standards set in the proposed rule.
The Agency has decided not to include language regarding the required level of cleanup in this final rule.

47 Fed.Reg. at 37354.

III.

The government has pleaded two claims with respect to each of the seven incidents of PCB contamination covered in the complaint. In the odd-numbered counts the government claims that Edison violated the PCB regulations promulgated by the EPA pursuant to 15 U.S.C. § 2605. In the even-numbered counts the government claims that the dielectric fluid containing PCBs spilled from Edison’s transformers and capacitors is an “imminently hazardous chemical substance” under 15 U.S.C. § 2606.

The government seeks an order compelling Edison to submit a list of sites where there have been known or suspected discharges of PCB-contaminated dielectric fluid, to initiate a program of sampling and laboratory analysis to evaluate the extent of PCB contamination at each spill site, and to provide detailed results of each analysis to the owner and occupant of the affected property. It also seeks to compel Edison to clean up each of the sites contaminated by PCBs, using methods designed to minimize human exposure and to limit the spread of PCBs into the environment. Finally, the government seeks an order declaring that “Edison has a duty to remove all PCB ... contamination resulting from any future discharge of dielectric fluid from Edison’s PCB capacitors, transformers and other PCB electrical equipment.”

The TSCA makes it unlawful to fail or refuse to comply with the requirements of § 2605 or EPA regulations promulgated thereunder, 15 U.S.C. § 2614(1). It gives district courts jurisdiction over civil actions to, inter alia, (1) restrain any violation of § 2614, (2) restrain action prohibited by § 2605 or applicable regulations, and (3) compel any action required by or under the TSCA, 15 U.S.C. § 2616. The parties agree that § 2616 gives this court jurisdiction over counts 1, 3, 5, 7, 9, 11 and 13.

The more difficult question is whether the government can proceed under § 2606. That section permits the EPA administrator to bring an action in district court

for relief ... against any person who manufactures, processes, distributes in commerce, or uses, or disposes of, an imminently hazardous chemical substance or mixture or any other article containing such a substance or mixture.

15 U.S.C. § 2606(a)(1)(B). The statute defines “imminently hazardous chemical substance or mixture” as

a chemical substance or mixture which presents an imminent and unreasonable risk of serious or widespread injury to health or the environment. Such a risk to health or the environment shall be considered imminent if it is shown that the manufacture, processing, distribution in commerce, use, or disposal of the chemical substance or mixture, or that any combination of such activities, is likely to result in such injury to health or the environment before a final rule under section 2606(f) of this title can protect against such risk.

15 U.S.C. § 2606(f).

The EPA may commence a civil action under § 2606 “notwithstanding the existence of a regulation or the pendency of any administrative or judicial proceeding.” 15 U.S.C. § 2606(a)(1). Section 2606(b) authorizes the district court to grant temporary or permanent relief “necessary to protect health or the environment from the unreasonable risk associated with the chemical substance,” § 2606(b).

Edison’s position is that dielectric fluid containing PCBs cannot be considered “imminently hazardous” as a matter of law and thus § 2606 is inapplicable. It points out that “imminently hazardous” is defined with reference to whether a chemical substance “is likely to result in ... injury to health or the environment before a final rule under § 2605 ... can protect against such risk.” Section 2606(f). Because the EPA promulgated regulations three years ago that permit the continued use of dielectric fluid containing PCBs in transformers and capacitors, Edison argues that a final rule already exists that protects against the risk of PCB contamination from leaks and spillages. But that position rests upon a non sequitur. That use of PCBs in nonruptured enclosures may not be “imminently hazardous,” does not mean that the continuing presence of PCBs in the environment as a result of uncontrolled spills, however inevitable such spills may be, is equally tolerable.

The government’s case under § 2606 is a narrow one. It seeks to establish that PCBs spilled in residential areas constitute an unusually great health risk and to compel Edison to clean up those areas contaminated by malfunctioning electrical equipment. Obviously, the government would not come into federal court to compel Edison to disclose where PCB spills have occurred and to clean up those sites if existing regulations forced Edison to keep public records of spills, to clean up spill sites and to inform unsuspecting residents of the extent of the PCB contamination.

Section 2606’s definition of “imminently hazardous chemical substance” explicitly distinguishes between “use” and “disposal”. While the regulations are directed primarily at the “use” of PCBs in electrical equipment, the government’s action is directed at a certain form of “disposal” — spills from rupturing electrical equipment. The existence of regulations governing the disposal of PCBs, see 40 C.F.R. §§ 761.60, 761.70, do not preempt an action under § 2606. First, the disposal regulations do not focus on the specific problem the government seeks to redress. Second, the government may bring an action against an imminent hazard notwithstanding the existence of a regulation. See § 2606(a).

The imminence of the hazard posed by the use or disposal of a chemical is defined in part with reference to the likelihood that the injury will occur before a regulation can be promulgated to protect against the harm, § 2606(f). This does not mean that the EPA administrator can bring an action under § 2606 only when a regulation is to be promulgated. Rather, § 2606 is best viewed as a complement to § 2616. Section 2616 permits the government to bring an action for violation of existing regulations. Section 2606 permits the government to close regulatory loopholes by taking action against applications of toxic chemicals whose health and environmental risks are not sufficiently minimized by the regulatory scheme. Requiring the EPA to couple new regulations with every § 2606 action would both complicate enforcement efforts and lead to an ever-growing regulatory scheme of impenetrable complexity.

By bringing an action under § 2606 rather than § 2616 the government presumptively establishes that the regulatory scheme is incomplete. The primary focus of a § 2606 case should be upon the seriousness of the real or threatened hazard posed by a toxic chemical or the particular application of a toxic chemical. The requirement that the government establish that the health or environmental threat is both (1) imminent and (2) commensurate to that posed by other substances covered by the TSCA (“unreasonable risk”), protects regulated companies from the arbitrary or frivolous enforcement efforts that Edison fears.

IV.

Edison does not mount a jurisdictional attack on the counts brought under § 2616. It does advance two arguments for summary judgment on these counts.

The first argument is that the government is seeking an order that would require Edison to clean up “all” spilled PCBs. Interpreting “all” to mean each and every molecule of spilled PCBs, and pointing out that such a cleanup is practically impossible, Edison argues that this court would be ordering the doing of an impossible act by granting the relief purportedly sought by the government.

This argument fails for two reasons. First, prayers for relief should be construed reasonably. When its prayer for relief is read in the context of the allegations in the complaint, it is clear that the government seeks to compel Edison to clean up spill sites to the extent necessary to protect human health and the environment. The government’s failure to specify precise cleanup standards undoubtedly stems from the absence of regulatory standards and, more importantly, from its recognition that ongoing research about the health effects of PCBs and developments in cleanup technology may alter the definition of what constitutes an adequate cleanup. Second, the government expressly disclaims any intention of forcing Edison to clean up each and every molecule of spilled PCBs.

Edison’s second argument rests upon two facts. The first is that the EPA has permitted the continued use of dielectric fluid containing PCBs even while recognizing that some spills will occur. The second is that the regulations do not specifically mandate a cleanup of “all” PCBs. Indeed, the EPA dropped a cleanup standard from the final regulations. Edison asserts that the legal implication to be drawn from these facts is that it has no obligation under the TCSA to clean up all PCBs and therefore is entitled to summary judgment on a claim that it does.

The regulatory scheme, however, clearly presupposes thorough cleanups after spills. The regulations set out detailed disposal requirements, 40 C.F.R. § 761.60. Spills and leaks are defined in § 761.60(d)(1) as forms of disposal that must comply with the regulatory standards. See § 761.-60(d)(1). Subsection (2), immediately following, reads, “PCBs resulting from the cleanup and removal of spills, leaks and other uncontrolled discharge, must be stored and disposed of in accordance with [§ 761.60(a)].” Section 761.60(b)(2) (emphasis added).

The regulations also set out disposal requirements for “any non-liquid PCBs in the form of contaminated soil, rags or other debris.” Section 761.60(4). See also § 761.60(a)(2) (dielectric mineral oil). These contaminated materials must be disposed of by incineration, § 761.70, or in chemical waste landfills, § 761.75. The regulations prescribe extremely strict incineration and landfill standards to ensure minimal PCB releases to the environment. See also § 761.65 (storage for disposal).

The regulatory scheme does not necessarily require the disposal of all PCBs, but it may not fall far short of that. Strict cleanup requirements can easily be derived from the regulations. For example, by treating spills as a form of disposal the EPA may in effect be requiring cleanups to be as thorough as the disposal methods. For example, if incineration must destroy all but 0.001 grams of PCBs per kilogram of PCB burned, see e.g., § 761.70(b)(1), perhaps cleanups of dielectric spills must be equally efficient. Edison quite reasonably complains that it is impossible to deal with a cleanup standard which EPA has yet to articulate, and it may well be entitled to specific responses to contention interrogatories. It can be said with assurance, however, that Edison cannot rely upon the TSCA and accompanying regulations to avoid or severely curtail a responsibility to clean up PCBs spilled from its equipment solely because EPA, in relying upon its regulations, prays for a cleanup of all PCBs.

V.

The government has moved for summary judgment on the counts based on 2616. Summary judgment, however, is premature. Having disavowed the position that Edison is required to clean up literally “all” the PCBs from each spill, the government cannot not now prevail simply by pointing out that Edison’s cleanup efforts are not 100 per cent effective. Rather, the government has the burden of showing that under the circumstances Edison’s cleanup efforts failed to satisfy disposal standards.

Further discovery and trial will be necessary to formulate disposal standards applicable to the type of spills here and to establish whether Edison has properly cleaned up existing PCBs spill sites. Such determinations are dependent upon up-to-date information about the health and environmental hazards posed by PCBs and the available cleanup technology. The PCB regulations indicate that with the assistance of the parties this court must establish what are “adequate cleanup measures” under the circumstances. 47 Fed.Reg. at 37354.

Edison argues that this court is bound by a determination of an administrative law judge in a parallel proceeding that Edison is not liable under the TSCA if it initiates “adequate” cleanups within 48 hours of a spill. In re Commonwealth Edison, (TSCA-V-C-133, 12/1/83) (on motion to dismiss an enforcement action seeking sanctions rather than prospective relief). This is a rather curious position. The same administrative law judge summarily rejected Edison’s argument that the absence of specific regulatory standards exempted Edison from any liability for inadequate PCB cleanups. Id. at 3. Edison not surprisingly does not argue that this determination has a preclusive effect. While this court will likely give some weight to pertinent administrative decisions, Edison’s selective res judicata approach must be rejected. The immediate, and for the moment dispositive, answer is that there has been no final agency action binding upon the parties.

Edison also seeks to bifurcate this proceeding and try the remedy issue first. Apparently bifurcation would permit Edison to determine the cost of cleanup if it is found liable. Knowing the cost, it might decide to forego litigating the liability issue.

Bifurcation offers only a speculative chance that trial on the liability issue can be entirely avoided. The liability and remedy issues are intertwined here. This court recognizes that the core dispute is the extent of Edison’s cleanup responsibility. The determination of what constitutes an adequate cleanup will require close attention to the same facts upon which Edison’s liability, if any, will be assessed. One questions, however, whether full litigation of the circumstances of every alleged spill is necessary to a resolution of that core dispute, even though an exploration of the circumstances of one or more will probably be helpful to that resolution.

Conclusion

All motions are denied.

      . This case also concerns polychlorinated diben-zofurans (PCDFs) found in Edison’s electrical equipment. PCDFs are produced when PCBs are heated in the presence of oxygen. They have toxic effects similar to PCBs. References to PCBs in the opinion should be understood as also referring to PCDFs.

      . For example, a study cited as typical by the Environmental Defense Fund court reported that fathead minnows biconcentrated PCBs by a factor of 230,000. 636 F.2d at 1270 n. 5.

      .EPA regulations covering PCBs suggest the seriousness of the health threat posed by PCBs. They define a "significant exposure” to PCBs as "any exposure to human beings or the environment to PCBs as measured by any scientifically acceptable analytical method.” 40 C.F.R. § 761.3.

      . Twelve per cent of PCB transformers, however, show signs of "small” leaks, and four per cent show signs of "moderate” leaks each year. 47 Fed.Reg. at 17430. PCB releases from such transformers total 20,448 pounds annually or 5.2 per cent of the total amount released from electrical equipment. Id. at 17428.

      . Approximately 500 million small capacitors, each containing between 0.1 and 0.6 pounds of PCBs were in use as of the middle of 1982. 47 Fed.Reg. at 37349. Unlike the large capacitors used by electric utilities, these small capacitors are not regulated or at issue in this case.

      . The EPA recently changed the definition of spills as a form of disposal, to read:
      Spills and other uncontrolled discharges of PCBs at concentrations of 50 ppm or greater constitute the disposal of PCBs.

        See 40 Fed.Reg. 28191 (July 10, 1984).

      . The regulations do mandate certain steps in the case of leaks from PCB transformers. 40 C.F.R. § 761.30(a)(l)(iii). If a PCB transformer is found to have a leak which results in any quantity of PCBs running off or being about to run off the external surface of the transformer, then the transformer must be repaired or replaced to eliminate the source of the leak. In all cases any leaking material must be cleaned up and properly disposed of according to disposal requirements of sec. 761.60. Cleanup of the released PCBs must be initiated as soon as possible, but in no case later than 48 hours of its discovery. Until appropriate action is completed, any active leak of PCBs must be contained to prevent exposure of humans or the environment and inspected daily to verify containment of the leak.

      .The proposed cleanup standard read in part as follows:
      Except as provided in paragraph (d)(3)(ii), of this section, contaminated material resulting from spills, leaks, and other uncontrolled discharges must be cleaned up to preexisting background levels of PCBs where there is a risk of exposure to water, human food or animal feed. Any visible signs of PCB contaminate must be removed. In all cases cleanup of PCB contaminated materials, below 50 ppm PCBs is required.
      47 Fed.Reg. at 17443.

      . Edison offers an affidavit which states that cleanups are not 100 per cent effective. It appears that it is possible to quite thoroughly clean up spills, however. Regulations proposed but later withdrawn by the EPA provided that many spills would have to be cleaned up to preexisting background levels. See 47 Fed.Reg. at 17441. Such a standard presupposes the existence of sophisticated measuring and cleanup technology. Interestingly enough, such a standard in effect would have required Edison to clean up an amount of PCBs equal to all the PCB spilled from its equipment. Otherwise, preexisting background levels of PCBs could not be reached.

      . This court does not suggest that such a stringent cleanup standard for dielectric oil spills is necessarily indicated. Rather, it engages in the derivation of the standard to illustrate that the regulatory scheme is strongly consistent in more than one way with a cleanup requirement.

      . Edison also does not suggest that this court give special weight to another administrative decision in a case presenting similar issues. See In the Matter of General Electric, Aircraft Engine Group, (No. TSCA-V-C-147 1/27/84). That de-cisión rejected a 50 ppm cutoff for PCB cleanups and appeared to embrace a requirement that PCBs be removed to the lowest level below 50 ppm which is practicable through the use of normal cleaning methods. Id. at 8-16.


source: Caselaw Access Project

author: BRIMMER, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, ex rel. Brent BERGEN and John Ernst, Plaintiff, and Wyoming Wildlife Federation, a Wyoming non-profit corporation, and National Wildlife Federation, District of Columbia non-profit corporation, Plaintiff-Intervenors. v. Taylor LAWRENCE, d/b/a Grizzly and Daley Ranch, Defendant,
    No. C85-0136-B.
    United States District Court, D. Wyoming.
    Nov. 1, 1985.

      Richard A. Stacy, U.S. Atty. (on briefs), Francis L. Pico, Asst. U.S. Atty., D. Wyo., Cheyenne, Wyo., and Georgina Guy, Regional Sol., U.S. Dept, of the Interior, Denver, Colo, (on briefs), for U.S.
    Thomas D. Lustig, Boulder, Colo., and Rodger McDaniel, Cheyenne, Wyo., for plaintiff-intervenors.
    Clyde O. Martz, Davis, Graham & Stubbs, Denver, Colo., and John A. Mac-Pherson, Johnson, MacPherson & Noecker, Rawlins, Wyo. (on briefs), for defendant.
   MEMORANDUM OPINION

BRIMMER, Chief Judge.

This case arises from the contentions of the United States and plaintiff-intervenors Wyoming Wildlife Federation and National Wildlife Federation (Wildlife Federations), that defendant has wrongfully fenced in federal land in violation of the Unlawful Inclosures of Public Lands Act, 43 U.S.C. §§ 1061-1066. At the hearing on plaintiff-intervenors’ motion for preliminary injunction, with the agreement of counsel, the Court consolidated the matter into a full hearing on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2).

At the conclusion of the evidence and final arguments, the Court concluded that the Wildlife Federations upheld their burden of proof both for the preliminary injunction and upon the merits of the case, and orally granted their motion and ordered defendant to take down certain portions of the fence within ten days, and modify or remove the entire fence within sixty days. In order to ensure removal of the portions of the fence necessary to avoid a disaster to the antelope herd in case of an early onset of winter weather, the Court issued a written Order Granting Motion for Preliminary Injunction on October 29,1985, setting that date as the beginning of the ten day period. This memorandum opinion now confirms the oral Order and Order on Preliminary Injunction, and more fully sets out the reasoning of the Court.

Defendant owns a cattle ranch in the vicinity of Rawlins, Wyoming, and in the spring and summer months for about 60 days grazes his cattle on a combination of private, federal and state lands in the area of south central Wyoming known as Red Rim. Red Rim is an escarpment and uplifting plateau of approximately 22,000 acres, fifteen miles southwest of Rawlins, Wyoming, which lies just south of the railroad right-of-way granted to the Union Pacific Railroad in 1862. Red Rim contains an abundance of Wyoming big sagebrush, which, as testified to by Mr. Moody and Dr. Alldredge, is not eaten by cattle, but constitutes the major part of an antelope’s diet, especially during winter. Due to Red Rim’s geological features, winter winds blow the snow off this sagebrush, allowing the antelope to find food here when their other grazing areas are covered over with deep snow. The Wyoming Game and Fish Department has declared that portions of Red Rim constitute critical winter habitat for pronghorn antelope. See plaintiff-inter-venors’ exhibit number 11. The Baggs antelope herd which uses Red Rim for winter range is estimated to number 2,000 or more, and those 2,000 antelope have virtually no other alternative winter feeding grounds.

Red Rim, and defendant’s Daley Ranch, are the legacy of a checkerboard ownership plan arising from the Union Pacific Railroad Act of July 1, 1862, c. 120, 12 Stat. 489, 492(3) and (4), as amended by Act of July 2, 1864, c. 216, 13 Stat. 356, 358(4). Pursuant to the Union Pacific Act, Congress transferred fee ownership of odd-numbered sections of land along the railroad lines to the Union Pacific, and retained Federal ownership in the even-numbered sections. Defendant now has fee title or permission to fence from the title owner, to the Union Pacific sections in question, and has grazing permits on the odd-numbered federal and state sections. Defendant’s fence, which covers 28 miles, is physically located on private land, except where it crosses at the common corners of state and federal sections, as shown on the attached diagram. (Stipulation Finding #14)

The matter in issue is quite simple. Defendant Lawrence contends that since the fence is located on his land, and that he can construct it in any manner he chooses, without having to comply with Bureau of Land Management (BLM) requirements. Plaintiff-intervenors counter that since the fence encloses public lands, it violates the Unlawful Inclosures Act, unless the fence conforms with BLM standards promulgated pursuant to the Taylor Grazing Act, 43 U.S.C. § 315 et seq. Those BLM standards require that fences for cattle operations provide a gap of at least sixteen inches at the bottom, with a bottom strand of smooth wire, so that antelope can crawl underneath, and with a top wire only thirty-eight inches high, to allow antelope to jump the fence when snow drifts block passage beneath the bottom strand. Defendant’s fence on the other hand, is made of woven wire with no gap at the bottom, and is topped off with barbed wire at a height of five feet, making it, as defendant admits, antelope-proof. Joint Stipulation number 14 and Exhibit B.

In 1897 the United States Supreme Court dealt with an identical situation in Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed.2d 260 (1897). Camfield acquired from Union Pacific the rights to several odd-numbered private sections of land, and

in building the fence complained of, the defendants had constructed it entirely on odd-numbered sections ... so as to completely enclose all of the government lands aforesaid, but without locating the fence on any part of the public domain so included. Id. at 519, 17 S.Ct. at 864.

The Supreme Court considered Camfield’s argument that he could do whatever he wished on his own land, and soundly rejected it. The Court found that the Unlawful Inclosures Act had been promulgated just to avoid such an outcome.

If the act be construed as applying only to fences actually erected upon public lands, it was manifestly unnecessary, since the Government as an ordinary proprietor would have the right to prosecute for such a trespass. It is only by treating it as prohibiting all “enclosures” of public lands, by whatever means, that the act becomes of any avail. Id. at 525, 17 S.Ct. at 867.

Finally, the Court concluded that defendant’s intent, whether to irrigate the public lands or use them for pasturage, was unimportant. The only matter at issue was whether or not the fence violated the statute.

The device to which defendants resorted was certainly an ingenious one, but it is too clearly an envasion (sic) to permit our regard for the private rights of defendants as landed proprietors to stand in the way of an enforcement of the statute- Considering the obvious purposes of this structure, and the necessities of preventing the enclosure of public lands, we think the fence is clearly a nuisance, and that it is within the constitutional power of Congress to order its abatement, notwithstanding such action may involve an entry upon the lands of a private individual. Camfield at 525, 17 S.Ct. at 867.

The situation in this matter is virtually identical to that dealt with by the Supreme Court in Camfield. Although written in 1897, Camfield is still good law, and in fact was relied upon by the Supreme Court as recently as 1983 in North Dakota v. United States, 460 U.S. 300, 319, 103 S.Ct. 1095, 1106, 75 L.Ed.2d 77 (1983). While the defendant relies on four major arguments in an attempt to distinguish Camfield, the Court is convinced that none of these arguments take the facts of this case beyond the scope of Camfield.

Defendant first contends that Cam-field is inapplicable because Camfield relies for its holding on the Unlawful Inclosures Act, (UIA), 43 U.S.C. § 1061 et seq., contends that the UIA does not apply to antelope. The portion of the UIA which is at issue here reads as follows:

§ 1063. Obstruction of settlement on or transit over public lands. No person, by force, threats, intimidation, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct, or shall combine and confederate with others to prevent or obstruct, any person from peaceably entering upon or establishing a settlement or residence on any tract of public land subject to settlement or entry under the public land laws of the United States, or shall prevent or obstruct free passage or transit over or through the public lands: Provided, This section shall not be held to affect the right or title of persons, who have gone upon, improved, or occupied said lands under the land laws of the United States, claiming title thereto, in good faith.

Because the UIA says no person shall “prevent or obstruct any person”, defendant says that the act only applies to humans, and that it is permissible for him to prevent antelope from crossing his fence. This argument might be valid except for the second clause of § 1063, which continues “or shall prevent or obstruct free passage or transit over or through the public lands.” That clause does not contain the word “person”, and neither does the Court believe that “person” from the preceding clause should be read into it. Had Congress intended only to protect people, the first clause would have accomplished that purpose without necessity of the second clause.

In Mackay v. Uinta Development Co., 219 F. 116 (1914), a Wyoming case decided by the Eighth Circuit Court of Appeals before the Tenth Circuit was created, the court held that there must be reasonable access for livestock to reach enclosed federal lands. Moreover, in Stoddard v. United States, 214 F. 566 (8th Cir.1914), the Eighth Circuit specifically rejected the argument that defendant now presses this Court to embrace. In holding that the UIA did not apply only to humans, the Court held that the act

was intended to prevent the obstruction of free passage or transit for any or all lawful purposes over public lands. Id. at 568-69.

Surely, the free passage of hunters and their quarry is a lawful purpose for which the public may seek access to public lands. In light of these precedents the Court is hardpressed to understand how the UIA could apply to cattle, but not to antelope. In the words of the Stoddard Court, “[w]e think this is a forced and unwarrantable construction of the language employed.” Stoddard at 568.

In the years since the 1885 passage of the UIA, the then-pressing concerns of settlement and range wars have faded. But, new present-day concerns have arisen. In the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1701 et seq., Congress set out new goals for the public lands, one of which is that

the public lands be managed in a manner ... that will provide food and habitat for fish and wildlife and domestic animals. ... 43 U.S.C. § 1701(a)(8).

Although FLPMA was promulgated long after passage of the UIA, it is certainly proper to consider FLPMA statute in light of UIA, especially since Congress as recently as 1984 considered and amended the UIA. See, e.g., Zabel v. Tabb, 430 F.2d 199 (5th Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971). In the Joint Stipulation of Facts, defendant has agreed that if allowed to stand, his fence might cause an increase in the winter kill of the Baggs antelope herd. At the Hearing on Preliminary Injunction the Court was thoroughly convinced by the undisputed testimony of Mr. Moody and Dr. All-dredge that not only is the enclosed portion of Red Rim critical winter range for the Baggs antelope herd, but that if the fence remains standing, the herd may very probably be decimated by winter starvation. The Court cannot accept as the intent of Congress that the UIA would allow that outcome, when it is clear that defendant could not build his fence to prevent humans from undertaking mere recreational pastimes, such as hiking or fishing.

Defendant next contends that Cam-field and the UIA do not apply to his fence because of the Taylor Grazing Act, 43 U.S.C. § 315 et seq. Defendant argues that since § 315c allows fencing directly on public lands under permit issued by the Secretary of the Interior, the UIA was implicitly repealed. This argument must fail. First, “repeals by implication are not favored, ... [t]he intention of the legislature to repeal must be ‘clear and manifest.’ ” [citations omitted]. Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981). There is no indication that Congress intended to repeal the UIA through passage of the Taylor Grazing Act, particularly when the UIA was amended as recently as 1984. Although the Grazing Act allows regulation of fencing on public land, it says nothing about fences on private land. The Grazing Act itself perpetuates the major purpose of the UIA, namely, access to public lands:

Nothing contained in this chapter shall restrict the ... ingress or egress over the public lands in such districts for all proper and lawful purposes.... 43 U.S.C. § 315e (1982).

If the Grazing Act repealed the UIA, the Government would be unable to achieve this purpose of the law, because it would have no authorization to prevent unlawful enclosures erected on private lands. The Court is convinced that both the UIA and Grazing Act must be construed in pari materia. See Singer, Sutherland Statutory Construction, 4th ed., chapters 51 and 53. The Grazing Act regulates fencing on public land, and unless fences on private land conform to these standards, the UIA prevents fences which wrongfully enclose public lands. Reading the statutes in this matter is consistent with the Supreme Court’s ruling that “[w]e must read the statutes to give effect to each if we can do so while preserving their sense and purpose.” Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981).

As an adjunct to this argument, defendant contends that the Bureau of Land Management (BLM) tacitly approved the fence, and that the Government should not now be allowed to complain. Although the Government waited almost two years before commencing this suit, the Court is not convinced that mere inaction constitutes approval. Moreover, the BLM’s inaction was based not on approval, but on a mistaken belief that BLM lacked the power to prevent defendant from building the fence.

We told [defendant] that he could not construct the fence on public land, but we didn’t think we could prevent him from crossing the fence at the section corners. (June 29, 1979 BLM Memorandum, Stipulation Exhibit B.) ... The existing allotment boundary fence would be modified as described above [to a sixty inch woven wire fence] on private land ... The Bureau of Land Management cannot endorse the modification of the fence as proposed. (May 31, 1979 BLM letter to defendant, Stipulation Exhibit B.).

Language such as this does not constitute tacit approval of the fence by the BLM.

Defendant also contends that because he has leases to the enclosed public lands pursuant to the Taylor Grazing Act, he is not a mere trespasser, and thus is saved by the proviso in the UIA:

§ 1063 Provided, This section shall not be held to affect the right or title of persons, who have gone upon, improved, or occupied said lands under the land laws of the United States, claiming title thereto, in good faith.

Defendant’s argument is that because he has color of leasehold title, he has gone upon the lands under the land laws of the United States, and his fence is not illegal under the UIA. It, too, must fail.

In Smith v. Third Nat’l Exchange Bank, 244 U.S. 184, 37 S.Ct. 516, 61 L.Ed. 1071 (1917), the Supreme Court discussed the UIA proviso.

It is a sufficient defence to such a [UIA] proceeding to show that the lands enclosed were not public lands of the United States, or that defendant had claim or color of title, made or acquired in good faith, or an asserted right thereto, by or under claim made in good faith, with a view to entry thereof at the proper land office under the general laws of the United States. Id. at 190, 37 S.Ct. at 518.

Defendant makes no claim that the lands in question do not belong to the United States, or that he has any good faith claim to fee title to the lands because of his Taylor Grazing Act leases. In fact, § 315b of the Grazing Act itself forestalls such an assertion

[t]he issuance of a permit pursuant to the provisions of this subehapter shall not create any right, title, interest, or estate in or to the lands. 43 U.S.C. § 315b.

Although defendant is not a bare trespasser, neither does he have any claim to color of title over the public lands in question. The UIA proviso does not save defendant’s fence.

Neither is the fact that the fence is broken by 28 gates, 19 of which are unlocked, enough to take defendant’s fence outside the scope of the UIA. Some of the locked gates have “No Trespassing” signs on them; and certainly none of the gates invite the public to come in. The Court is not entirely convinced that all of these gates provide adequate access for humans. However, the question at issue here is access by antelope. The testimony of Mr. Moody and Dr. Alldredge convinces the Court that gates, even if left open, make little or no difference to the antelope, which are creatures of habit that encounter a fence and will trail along it, totally missing small openings such as gates. See plaintiff-intervenors’ exhibit number 7. It is not the fence itself, but its effect which constitutes the UIA violation. McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301 (1922). The clear, admitted, and intended effect of this fence is to exclude antelope. The presence of gates in it is unimportant.

Finally, defendant contends that Cam-field and the UIA do not outlaw his fence because of the Supreme Court’s decision in Leo Sheep Co. v. United States, 440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979), which involved a BLM effort to build a road crossing from one public section to another, usually but not always (because of terrain) at the common corner. There the Government contended, inter alia, that the Unlawful Inclosures Act prevented the Leo Sheep Company from contesting the Government’s right to build a road across its land to provide public access to a reservoir area. The Supreme Court held that in order to build the road, which was in part on private land and invite the public to use it, the Government had to compensate the Leo Sheep Company for use of its land. But, in the opinion, the Court stated:

Nor do we find the Unlawful Inclosures of 1885 of any significance in this controversy. That Act was a response to the “range wars,” the legendary struggle between cattlemen and farmers during the last half of the 19th century. Leo Sheep at 683, 99 S.Ct. at 1411.

Defendant concludes that the Supreme Court held by this language that the UIA’s purpose was to prevent the continuation of “range wars”, and that it should not be extended beyond this purpose. That is not what the Court meant. The UIA indeed was a response to the range wars, but nothing in the act or its history limits its application in such a manner. If the UIA was only meant for such a limited purpose, the Court would have said so in Camfield, and Congress should have repealed it in 1934 when the Taylor Grazing Act was passed to end public lands disputes. Certainly Congress would not have amended the UIA in 1984 if the act was now useless.

Because Leo Sheep involved the Government’s claim to an implied easement at the common corners of a checkerboard tract, the Court only concluded that Camfield and the UIA did not “suggest that the Government had the authority asserted here.” Leo Sheep at 683, 99 S.Ct. at 1411. That does not mean that Camfield now has no applicability in this matter. As the Leo Sheep Court stated, “[t]hat case [Cam- field, ] involved a fence that was constructed on odd-numbered lots so as to enclose 20,000 acres of public land....” Id. at 683, 99 S.Ct. at 1411. Defendant has erected the same type of fence. Certainly Cam-field is not applicable to a road question, but it clearly has much to say on the subject of defendant’s fence. The Court finds that while Leo Sheep has no applicability in this matter, Camfield is dispositive of it.

Thus, the Court concludes that this matter was decided by the Supreme Court in 1897 in Camfield v. United States. Defendant cannot maintain a fence which encloses public lands and prevents the lawful purpose of antelope access to their winter feeding range. The fence clearly constitutes a serious nuisance which must be abated in order to avoid disastrous consequences to the antelope which use Red Rim as winter range. The fence was built ostensibly to protect defendant’s crop of crested wheat grass; but, in eight years the defendant has never planted that crop. The Court believes that he does not intend to, either. The fence has an ulterior purpose, and since the parties assured the Court that the mineral rights of that area were not involved, the only reason left for it is the exclusion of antelope from their winter range, which will result in decimation of that herd. The antelope grazed on the Wyoming big sagebrush at Red Rim long before the Daley Ranch was ever built, and unless driven to extinction, will graze there long after it is gone. The Court agrees with the Wildlife Federations that the Unlawful Inclosures Act must be read to avoid such an occurrence and to protect a unique wildlife resource like the Baggs antelope herd. Therefore, it is

ORDERED that the Defendant, Taylor Lawrence, shall within 10 days from and after October 29, 1986 remove the 48" woven wire from the fence at the places in the fence where it has been removed and laid down in the past two winters, in accord with the Order of this Court dated October 29, 1985. It is

FURTHER ORDERED that defendant Lawrence, within 60 days from the date of this Order, shall remove the 48" woven wire from all 28 miles of his Red Rim fence and conform the fence to BLM standards, for enclosure of cattle, or remove it altogether. It is further

ORDERED that if defendant fails to comply with this Order and modify or remove the fence, he shall be in contempt of Court, and subject, from the sixty-first day on until compliance, to a fine of $1,000 per day. It is further

ORDERED that in the event defendant desires to appeal this decision, this Order may be stayed upon his filing of a superse-deas bond, cash or surety, in the amount of $120,000, but that if the defendant demonstrates to the Court that he has complied, and will continue to comply with the October 29, 1985 Order on Preliminary Injunction instructing him to remove the woven wire from those sections of the fence he has laid down in past years in agreement with the State of Wyoming, then this Order may be stayed upon filing of a supersedeas bond, cash or surety, in the amount of $1,000.

      . Based on an estimate of 2000 antelope in the Baggs herd, at $.50 per head per day.

      . Based on the median of $60 per head from the $15 charged for an in-state antelope hunting permit and the $105 charged for an out-of-state antelope hunting permit by the Wyoming Game and Fish Department.


author: WARRINER, District Judge.

text:
    William S. BIEL, Jr. v. AIRLINE PILOTS ASSOCIATION.
    Civ. A. No. 85-0772-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Nov. 1, 1985.
    Maurice H. Bell, Jr., Bell & Kaestner, Richmond, Va., for plaintiff.
    James A. Vergara, Jr., Hopewell, Va., Eugene B. Granof, Legal Dept., Air Line Pilots Assn., Int’l, Washington, D.C., for defendant.
   OPINION AND ORDER

WARRINER, District Judge.

Presently before the Court is defendant’s petition for removal, filed on 4 October 1985. Defendants assert that jurisdiction of this Court lies under 28 U.S.C. §§ 1331 and 1337, i.e., defendants assert that they have a cause of action arising under the federal Constitution or federal statute and under an Act of Congress regulating commerce. Specifically, defendants assert that plaintiffs State court complaint “in essence alleges a breach of the duty of fair representation by [defendant] which arises under the substantive provisions of the Railway Labor Act, 45 U.S.C. § 151, et seq.” Petition for Removal of Defendant Air Line Pilots Association, at 2. Plaintiff has responded to the petition for removal by filing a motion for remand.

Plaintiff, a member of the Airline Pilots Association (ALPA), a labor union, alleges in his State motion for judgment that ALPA contracted to provide plaintiff as a benefit of his ALPA membership the assistance of an attorney to represent him “in any contested loss of license claim involving an ALPA-sponsored loss-of-lieense insurance policy.” Plaintiffs Motion for Judgment at 1. Plaintiff suffered such a loss of license and ALPA declined to provide him with assistance of counsel in handling the claim. Plaintiff therefore hired a lawyer at his own expense to assist him in lieu of legal assistance to which he was entitled under ALPA-sponsored loss-of-license insurance. In his motion for judgment, plaintiff sought a judgment against ALPA for the amount he paid in attorney’s fees.

Congress has specified that the provisions of the Railway Labor Act, with an exception not here pertinent, apply to carriers by air. 45 U.S.C. § 181. In actions in which the duty of fair representation by a labor union is an issue, the provision of the Railway Labor Act almost invariably litigated is § 2, 45 U.S.C. § 152, which specifies the general duties of carriers, their officers, agents, and employees, and the unions.

My research uncovered only one case involving a Railway Labor Act fair representation claim in which, as here, a union refused to represent an employee pursuing a claim under a union-sponsored insurance policy. In Archer v. Airline Pilots Association International, 609 F.2d 934 (9th Cir.1979), cert. denied, 446 U.S. 953, 100 S.Ct. 2920, 64 L.Ed.2d 810 (1980), the plaintiff, a member of the ALPA, had obtained coverage under several group life insurance policies made available by his employer, Bran-iff Airways. The plaintiff became totally disabled and retired from employment with Braniff. He filed a claim for disability benefits as provided under the terms of the insurance policies. The insurance company refused to pay under one of the policies and the plaintiff complained to ALPA. The union investigated plaintiffs claim and informed him that it would take no action; the union suggested that plaintiff could sue the insurance company at his own expense. The plaintiff then retained a private attorney, who obtained the full amounts of the benefits requested by plaintiff. Plaintiff paid the privately retained lawyer. Id. at 937.

The plaintiff then filed an action against ALPA, charging the union with having breached its duty of fair representation by declining to represent the plaintiff in his claim against the insurance company. ALPA argued that it was under no legal obligation to handle the plaintiff’s insurance claim and moved for summary judgment. Summary judgment was granted by the district court. Id. at 937.

The Ninth Circuit affirmed the district court, holding that the plaintiff had failed to state a claim upon which relief could be granted. Id. at 938. The court noted that in order to state a good claim the plaintiff “had to allege that [the union] owed him a duty to process his grievance in accordance with the standards of the fair representation doctrine, that [the union] breached that duty, and that as a consequence he had to pay the [lawyer’s] fee.” Id.

The Ninth Circuit found that the plaintiff had failed to state a claim because he could not allege that the union owed him a duty to fairly represent him with respect to the insurance claim. The court held that neither statute nor the collective-bargaining agreement empowered or required the union to act as the employees’ bargaining agent with respect to insurance coverage. Id. at 938-39.

Although Archer involved review of a summary judgment while the present action concerns a petition for removal, in both cases the central issue is whether plaintiff has stated a federal claim. The claim in the present action, as in Archer, seeks recovery of legal fees which were paid to recover benefits allegedly due plaintiff under an insurance policy. In both cases, the plaintiffs assert that the union was obligated to provide legal counsel to prosecute plaintiffs’ claims against the respective insurance company. As in Archer, ALPA in the present action is not statutorily empowered or required to provide any assistance respecting plaintiff’s grievance against the insurance company nor is any such representation required of ALPA under the provisions of a collective bargaining contract.

The Supreme Court held in International Brotherhood of Workers v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979), that under the fair representation doctrine, “a union must represent fairly the interest of all bargaining-unit members during the negotiation, administration, and enforcement of collective-bargaining agreements.” Id. at 47, 99 S.Ct. at 2125. It is not apparent from the papers filed by the parties that a collective bargaining agreement even exists between ALPA and the employer in this case. Neither party’s pleadings refer to a collective bargaining agreement specifying a duty owed by ALPA to plaintiff. Nor does either party assert that ALPA was obligated in any way under a collective bargaining agreement to provide representation to plaintiff in pursuing his insurance claim.

I acknowledge that the Fourth Circuit recently confirmed the rule that an action seeking damages for injury caused by a breach of a union duty of fair representation was judicially cognizable “ ‘even if the conduct complained of was arguably protected or prohibited by the National Labor Relations Act and whether or not the lawsuit was bottomed on a collective agreement.’ ” Beck v. Communications Workers of America, 776 F.2d 1187, 1204 (4th Cir.1985) (quoting Amalgamated Association of Street, Electric Railway & Motor Coach Employees v. Lockridge, 403 U.S. 274, 299, 91 S.Ct. 1909, 1924, 29 L.Ed.2d 473 (1971)). In Beck, non-union employees in a union shop sued the union to recover that portion .of agency fees paid to the union which were not used for purposes related to collective bargaining, contract administration, and grievance adjustment. Beck, at 1189. The Fourth Circuit held in Beck that the federal courts had jurisdiction under 28 U.S.C. § 1337 because:

[T]he union’s rights and obligations arise out of an agency contract authorized under a federal statute. Under that federally authorized contract, the union derives its right to collect a service charge from objecting employees. The rights of the union thus derived from an agreement, the context of which — so far as the collection of the dues-equivalent — is controlled by federal laws declared by the Supreme Court.

Id., slip op. at 1205. The present action differs from Beck in that the relevant content of the agreement or contract at issue is not controlled by federal law. The conduct complained of by plaintiff is not even “arguably protected or prohibited” by the Railway Labor Act. See Amalgamated Association of Street, Electric Railway & Motor Coach Employees v. Lockridge, 403 U.S. at 299, 91 S.Ct. at 1924.

These cases indicate that as a matter of law an action grounded on the fair representation doctrine would not emerge from the facts alleged in this case. The plaintiff does not assert in his complaint that the provisions of a collective-bargaining agreement are implicated in this action. Neither party presents any allegation that the “negotiation, administration, [or] enforcement” of any other agreement with the employer is involved in this dispute. See Foust, 442 U.S. at 47, 99 S.Ct. at 2125. Defendant also fails to demonstrate, and I cannot discover myself, any section of the Railway Labor Act which even arguably may be implicated by the allegations in plaintiff’s removed motion for judgment. As in Archer the defendant simply has failed to state a claim under the fair representation, or any other, federal doctrine.

Defendant’s petition does not assert any other basis for federal jurisdiction over this action other than the declared fair representation claim. A federal court deciding a question of federal jurisdiction on the basis of a federal question for removal purposes is required to determine the existence of jurisdiction from the face of the complaint. Burgess v. Charlottesville Savings & Loan Association, 477 F.2d 40, 43-44 (4th Cir.1973); see also Wright, Miller & Cooper, Federal Practice and Procedure, Jurisdiction 2d § 3722, at 255-60 (1985). The face of plaintiffs State court motion for judgment does not implicate any federal statute or any cognizable federal claim. It appears to allege no more than a State contract claim. This Court therefore may not exercise jurisdiction under 28 U.S.C. § 1331 or 28 U.S.C. § 1337.

Plaintiffs motion to remand this case to State court is GRANTED and the case is REMANDED to the Circuit Court for the City of Richmond, Virginia.

And it is so ORDERED.

      . The Fourth Circuit stated in Beck v. Communications Workers of America, 776 F.2d 1187 (4th Cir.1985), that section 8(a)(3) of the NLRA (at issue in Beck) and section 2, Eleventh of the Railway Labor Act (at issue in the present action) were virtually identical in language and legislative purpose. The court went on to say that "[i]t is inconceivable that two such statutes would be construed differently. For this reason it seems fair to assume that the construction given one by the Supreme Court would be equally applicable to the other ... ’’ Id., at 1197-1198.

      . I recognize that the Fourth Circuit’s opinion in Beck implied that union conduct unrelated to a collective bargaining agreement or to a federal statute could nevertheless violate the duty of fair representation. Beck, at 1203-1204. In Beck, however, the Fourth Circuit addressed this exceptional form of the violation of a duty of fair representation within the specific context of a union’s compelling the payment of dues used for purposes unrelated to collective bargaining. Id., at 1203-1204. That situation does not present itself here, and I am unwilling to extend the boundaries of the fair representation doctrine in the absence of any basis for doing so founded upon a federal statute or a collective bargaining agreement.


author: CARRIGAN, District Judge.

text:
    David Earle JOHNSON, Petitioner, v. Chase RIVELAND, Respondent.
    Civ. A. No. 85-C-151.
    United States District Court, D. Colorado.
    Nov. 4, 1985.
    William Durland, Denver, Colo., for petitioner.
    John Dailey, Denver, Colo., for respondent.
   ORDER

CARRIGAN, District Judge.

David Earle Johnson filed this petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (1982). By Special Order of Reference dated February 22, 1985, I referred the case to a United States Magistrate. On August 23, 1985, he issued an opinion recommending that the petition be dismissed. Petitioner has filed an objection to the recommendation, which I have carefully reviewed. For the reasons stated below, I decline to adopt the Magistrate’s recommendation.

The facts, as found by the Magistrate, are as follows. On July 17, 1974, the petitioner was found guilty by a Colorado state district court of three counts of aggravated robbery. He was sentenced to three consecutive terms of not less than thirteen years and not more than forty years. The petitioner had been incarcerated for 463 days. Prior to sentencing the mittimus did not provide for crediting the pre-sentence confinement against either the minimum or the maximum sentence. In 1980, the Governor commuted the petitioner’s minimum sentence by two years, and in 1982 he reduced the time required for his parole eligibility by six years. Despite the commutations, the maximum sentence remains, undiminished by any credit for the 463 days of pre-sentence confinement.

Petitioner filed a state court Rule 35(c) motion requesting that the time of his pre-sentence confinement be credited against both the minimum and maximum sentences. The state court judge granted the motion, and ordered that credit be given for pre-sentence time served to reduce both the minimum and maximum sentences. The Colorado Department of Corrections on its records gave credit for the pre-sen-tence time against the maximum sentence but refused to do so as against the minimum sentence. Petitioner then sought a Writ of Mandamus, which was issued by a second state court judge. The Writ ordered the Department of Corrections to give credit against the minimum sentence. On appeal, however, the Colorado Court of Appeals reversed, holding that the state’s trial court judges have no jurisdiction to modify a sentence after it has been commuted by the Governor. The appellate court reasoned that in effect, the petitioner was asking the courts to modify the Governor’s commutation order, and held that a state court simply has no authority to do so. A petition for certiorari was denied by the Colorado Supreme Court on December 12, 1984.

Petitioner here argues that he is constitutionally entitled to credit for his pre-sen-tence confinement to reduce both the minimum and maximum terms. In Godbold v. Wilson, 518 F.Supp. 1265 (D.Colo.1981), Judge Kane of this court held that there is a constitutional right to credit for pre-sen-tence confinement, even where the total time to be served by the defendant without the credit is below the maximum penalty for the offense. Id. at 1269. Cf. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). Judge Kane reasoned that failure to give a prisoner credit for such time served violates equal protection because it impermissibly discriminates against a suspect class, those with insufficient funds to make bail. See also Johnson v. Prast, 548 F.2d 699 (7th Cir.1977); King v. Wyrick, 516 F.2d 321 (8th Cir.1975); Ham v. North Carolina, 471 F.2d 406 (4th Cir.1973); United States v. Gaines, 449 F.2d 143 (2d Cir.1971). Contra, Matthews v. Dees, 579 F.2d 929 (5th Cir.1978).

The Magistrate concluded that Godbold and the cases cited there apply only to pre-sentence time credit against a maximum sentence. I disagree. There is no indication in any of these opinions that a defendant has a constitutional right to credit on the maximum sentence for pre-sentence time served but not on the minimum sentence. Failure to give credit in itself is the constitutional violation. There is no reason to distinguish between minimum and maximum sentences under the equal protection clause.

Accordingly, it is ordered that the defendant credit the petitioner on both his minimum and his maximum sentences for time in confinement before sentencing on the three counts of aggravated robbery. Alternatively, the defendant shall appear personally in this court and produce the petitioner’s body for a hearing on November 14, 1985 at 10:45 a.m. to show cause why the defendant should not be released or provided with other appropriate relief.


author: EDELSTEIN, District Judge:

text:
    UNITED STATES of America v. Donald PAYDEN, Eugene Coleman, and Anthony Grant, Defendants.
    No. SS 84 Cr. 566 (DNE).
    United States District Court, S.D. New York.
    Nov. 4, 1985.

      Robert L. Herbst, New York City, for defendant Anthony Grant.
    Murray & Skoff (Francis J. Murray, New York City, of counsel), for defendant Eugene Coleman.
    Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. (John K. Carroll, Asst. U.S. Atty., New York City, of counsel), for plaintiff.
   OPINION AND ORDER

EDELSTEIN, District Judge:

Defendants Donald Payden (“Payden”), Anthony Grant (“Grant”) and Eugene Coleman (“Coleman”) are charged with conspiring to violate the narcotics laws of the United States in violation of Title 21, Section 846 of the United States Code. Defendant Payden is also charged with heading a continuing criminal enterprise in violation of 21 U.S.C. § 848 and with distributing, and possessing with intent to distribute, narcotics in violation of 21 U.S.C. § 841. The facts of this case are more fully set forth in other opinions.

Defendants Grant and Coleman have moved pursuant to 18 U.S.C. § 3162, to dismiss the indictment with prejudice, on the ground that they were not brought to trial within the time mandated by the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (the “Act”). These motions are denied.

DISCUSSION

The Speedy Trial Act requires that a defendant be brought to trial within seventy days of the filing of the indictment or from the -date of the defendant’s first appearance before a judicial officer of the court in which the charge is pending, whichever is later. 18 U.S.C. § 3161(c)(1). There are a number of exclusions to the seventy day period. For the purposes of these motions, however, only one exclusion need be addressed — the “joinder with code-fendant exclusion” contained in 18 U.S.C. § 3161(h)(7).

Requirement that Defendant Move for Severence

Section 3161(h)(7) of the Act provides that “[a] reasonable period of delay [may be excluded] when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” The effect of this provision is that a unitary “Speedy Trial Clock” is applied to all of the defendants: an exclusion of time for one defendant is applicable to all. E.g., United States v. Piteo, 726 F.2d 50, 52 (2d Cir.1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1682, 80 L.Ed.2d 156 (1984); United States v. Campbell, 706 F.2d 1138 (11th Cir.1983). The motions by Grant and Coleman are based on (h)(7). They claim that the exclusions applied to them based on this provision are “unreasonable” and that absent these imputed exclusions, the Speedy Trial Clock has run as to them. Defendants’ claims are unfounded.

To invoke the reasonableness limitation of (h)(7), as opposed to an unqualified imputation of excludable time, two conditions must be satisfied. First, the “Speedy Trial Clock” must not have run on the “codefendant”; and second, “no motion for severance has been granted.” The language of section (h)(7) is ambiguous, however, regarding whether the second condition requires a severance motion to be filed and denied in order to invoke the reasonableness limitation. The Act states simply “and no motion for severance has been granted.” There are two possible situations where “no motion ... has been granted.” The first is a case in which no motion has been made. The second is where a motion has been made and denied. The court has examined the legislative history and cases applying the (h)(7) exclusion and finds that both sources indicate that a severance motion must be filed and denied in order to invoke the reasonableness limitation.

The language “no motion for severance has been granted” replaced language in the bill introduced by Representative Mikva in 1971. The Mikva Bill stated:

A reasonable period of delay [is excluda-ble] when the defendant is joined for trial with a codefendant as to whom time for trial has not run and there is good cause for not granting a severance. In all other cases, the defendant shall be granted a severance so that he may be tried within the time limits applicable to him.

H.R. 7107, 92d Cong., 1st Sess. (1971) (emphasis added). Under this version of the statute, a motion for severance clearly was contemplated. The original language was changed in a later draft of the statute introduced by Senator Ervin, S. 754, 93d Cong., 1st Sess. (1973), to include the language that appears in the present statute. This change in language was intended to ensure that the burden of proof regarding severance, which had always been on the defendant, was not shifted to the government by the statute. The original language was thought to have shifted the burden of proof from the defendant to the government. A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974 134 (1980) (quoting comments on bill in Letter to Senator Ervin from Assistant Attorney General William H. Rehnquist, Oct. 19, 1971). Thus, the original language of the statute together with the reasons for its change indicate that the requirement for a severance motion survived the change in language.

This interpretation of (h)(7) is consistent with the purpose of the “codefendant exclusion” which “was to avoid requiring the government to seek severance in multi-de-fendant trials.” United States v. Campbell, 706 F.2d 1138, 1142 (11th Cir.1983). As noted by then Assistant Attorney General Rehnquist: “[t]he efficiency and economy of joint trials far outweighs the desirability of granting a severance where the criterion is simply the passage of time.” Explanation of Proposed Amendments in Letter to Senator Ervin from Assistant Attorney General William H. Rehnquist, Oct. 19,1971, quoted in A. Partridge, supra, at 134; accord United States v. Rush, 738 F.2d 497, 503 (1st Cir.1984) (noting congressional intent “of avoiding waste of resources on unnecessary severances and separate trials.”), cert. denied, 105 S.Ct. 1355 (1985). See also Hearings on the 1972 Senate Subcommittee Bill, S. 754, 93d Cong., 1st Sess. (1972) (Testimony of Deputy Attorney General Joseph T. Sneed) (“ ‘In multiple defendant cases, such as major narcotic conspiracies, judges may be forced to grant severances which would otherwise not be required. This in turn would lead to more trial and more congestion.’ ”) (emphasis added). A severance motion requirement results in the unitary clock being used up to the point of the severance motion without regard to reasonableness. Thus, more joint trials may be conducted.

There is a split among the courts regarding the severance requirement. United States v. Mitchell, 723 F.2d 1040, 1048 (1st Cir.1983). A review of the cases applying (h)(7) establishes that this requirement has been imposed explicitly in at least one instance and may have been imposed sub silentio by a number of other courts.

In United States v. Mitchell, 723 F.2d 1040 (1st Cir.1983), the First Circuit explicitly stated that the defendant’s failure to move for severance “amounted to a waiver of any claim that (h)(7) exclusion was not properly applied.” Id. at 1048. This is the only court to confront this issue specifically. Other courts, not directly addressing the issue, simply have noted that the defendant had not made a motion for sever-anee and therefore imputed all of the co-defendant’s excludable time. These courts maintained the unitary clock. The analysis of the exclusions did not depend on the reasonableness of the time period. See United States v. Sarro, 742 F.2d 1286, 1299 (11th Cir.1984) (speedy trial claim dismissed because “no motion for severance had been granted” where no pretrial motions had been made); cf. United States v. Dennis, 737 F.2d 617, 620-22 (7th Cir.1984) (constitutional speedy trial claim dismissed because 144 day delay was reasonable and not prejudicial “and Dennis at no time moved to sever his case”), cert. denied, — U.S. -, 105 S.Ct. 215, 83 L.Ed.2d 145 (1985). But see United States v. Darby, 744 F.2d 1508, 1516-19 (11th Cir.1984) (recognizing a reasonableness limitation on the application of excludable time from one codefendant to another without noting whether or not severance motion had been made); United States v. Novak, 715 F.2d 810, 814-16 (3d Cir.1983) (same), cert. denied, — U.S. -, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984).

The effect of the severance motion requirement is that a unitary clock is maintained for all defendants until a defendant seeks a severance. If the severance motion is granted, the severed defendant will operate on a separate Speedy Trial Clock including any days counted under the unitary clock, commencing from the date the motion is decided. If the severance motion is denied, the unitary clock will continue with the limitation that any further time imputed to the “Unsevered Defendant” must be “reasonable.” The determination of reasonableness, will of course, take into account any time previously imputed to the “Unsevered Defendant” under 18 U.S.C. § 3161(h)(7) prior to making the severance motion. Thus, if an extended period of time has already been imputed to the defendant seeking severance, any additional imputed time may be deemed unreasonable. If the court finds that no additional imputation of time would be reasonable, while denying the motion for severance, then the “Unsevered Defendant” would, in effect, no longer be operating under the unitary clock from the time of the court’s determination of the severance motion.

In sum, the court finds that the reasonableness limitation on the (h)(7) exclusion is imposed only after a severance motion has been made and denied. In this case, defendants have failed to meet such condition. No motion for severance has been made. Accordingly, the motions for dismissal of the indictment filed by Coleman and Grant are denied.

Reasonable Imputed Time

Grant’s first appearance was on August 23, 1984. Coleman first appeared on October 23, 1984 pursuant to the superseding indictment. Both defendants concede direct exclusions relating to the filing of letters by which they joined in defendant Pay-den’s pretrial motions. See 18 U.S.C. § 3161(h)(1)(F), (J). Coleman concedes ex-cludable time totaling 59 days and Grant concedes a period of 56 days. In addition, Coleman and Grant also note that they agreed that the period between September 12 and October 15, 1985 was excludible. A period of approximately seven months remains which Coleman and Grant claim is “unreasonable” within the meaning of 18 U.S.C. § 3161(h)(l)(J), resulting in a violation of the Speedy Trial Act.

The first point which must be addressed is Coleman and Grant’s seven month estimate of unexplained delay. The seven month period claimed by Coleman and Grant to be the result of imputed exclusions is inaccurate. There are other direct exclusions which Coleman and Grant have failed to account for.

Both defendants fail to consider the time excluded to allow adequate trial preparation based on the complex nature of this case and the interest of justice, 18 U.S.C. § 3161(h)(8)(B)(ii). This exclusion was requested by Mr. Payden’s attorney, Mr. Si-méis, at conferences on October 17 and 31, 1984. Mr. Siméis listened to over 3,000 tape recordings to prepare for trial and to file numerous pretrial motions. Grant and Coleman benefitted from this effort by joining in the motions. They cannot disavow the direct exclusion based on the preparation of the motions after joining in them. Accordingly, the time involved in preparing these motions is directly excluda-ble as to Grant and Coleman.

Further, the court discussed the Speedy Trial problem at numerous pretrial conferences and hearings and made exclusions based on the complex nature of the case. The exclusions were discussed by all counsel. See, e.g., Pretrial Conference October 17, 1984; Pretrial Conference October 31, 1984; Pretrial Conference July 11, 1985; Pretrial Conference September 4, 1985. Thus, the seven month period alleged by Grant and Coleman is grossly inaccurate.

Assuming, arguendo, that the seven month figure is correct and further assuming that Coleman and Grant made severance motions at an early stage of this action such as at their arraignments, the speedy trial claims would still be denied. The court finds that the seven month period is reasonable. In complex cases such as this, similar periods of time and longer have been imputed to codefendants and were found to be reasonable. See, e.g., United States v. Anello, 765 F.2d 253, 255-58 (1st Cir.1985) (568 days excluded); United States v. Mitchell, 723 F.2d 1040, 1048 (1st Cir.1983) (223 days deemed reasonable); United States v. Horton, 705 F.2d 1414, 1416 (5th Cir.1983) (despite fact that 280 days elapsed between the time of defendant’s first appearance and the time of trial, 70 day period of Speedy Trial Act was not violated where at least 183 of those days represented time between filing of defendant’s pretrial motion and disposition of motion, and additional 30 days were charged to time that proceeding was under court’s advisement), cert. denied, 464 U.S. 997, 104 S.Ct. 496, 78 L.Ed.2d 689 (1984); United States v. Baldinucci, SSS 84 Cr. 236 (WCC), slip op. at 6-8 (S.D.N.Y. Apr. 18, 1985) (Opinion and Order) (7 months excluded); cf. United States v. Dennis, 737 F.2d 617, 621 (7th Cir.1984) (144 day delay preceeding defendant’s trial was not “presumptively prejudicial” within the meaning of the sixth amendment right to speedy trial as interpreted in Barker v. Wingo, 407 U.S. 514, 530-31, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972)), cert. denied, — U.S. -, 105 S.Ct. 215, 83 L.Ed.2d 145 (1985); United States v. Felton, 592 F.Supp. 172, 185-86 (in complex case where defendants were charged with conspiracy and distribution of marijuanna, eighteen month delay held not to be excessive within meaning of Barker), rev’d on other grounds, 753 F.2d 276 (3d Cir.1985).

It must also be noted that the court has repeatedly advised the parties that trial could be commenced as soon as the defendants indicated that they were ready. In re Grand Jury Subpoena Dated Jan. 2, 1985 (Simels), 605 F.Supp. 839, 848 n. 12 (S.D.N.Y.), rev’d on other grounds, 767 F.2d 26 (2d Cir.1985); United States v. Payden, 598 F.Supp. 1388, 1395 (S.D.N.Y.1984), rev’d on other grounds, 759 F.2d 202 (2d Cir.1985). There was no indication from Grant or Coleman that they were prepared to proceed to trial.

CONCLUSION

The motions to dismiss the indictment based on the failure to commence trial within the time required by the Speedy Trial Act filed by defendants Coleman and Grant are hereby denied.

SO ORDERED.

      . United States v. Payden, 613 F.Supp. 800 (S.D.N.Y.1985); United States v. Payden, 609 F.Supp. 1273 (S.D.N.Y.1985), aff'd, 768 F.2d 487 (2d Cir.1985); in re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 605 F.Supp. 839 (S.D.N.Y.1985), rev’d, 767 F.2d 26 (2d Cir.1985); United States v. Payden, 598 F.Supp. 1388 (S.D.N.Y.1984), rev’d, 759 F.2d 202 (2d Cir.1985).

      . The proposed amendment to the statute submitted by the Department of Justice included the following:
      The period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run. The granting of a continuance as to one defendant shall be an exclusion from the time limits of section 3161 as to all defendants in that case. Actual prejudice to a defendant resulting from this period of delay must be demonstrated by such defendant if a severance is to be granted to him.
      Department of Justice Proposed Amendments to Title I of S. 895, reprinted in A. Partridge, supra, at 134. A severance motion was clearly contemplated under this proposal to clarify the burden of proof regarding severance. The language eventually adopted was intended to address the concerns of the Justice Department. The source of the final language, however, is unknown.

      . The court in Novak discusses the Federal Guidelines for the implementation of the Speedy Trial Act. 715 F.2d at 815. The Guidelines state that the starting date for excludable time under 18 U.S.C. § 3161(h)(l)(7) is “the day following the day that would otherwise have been the last day for the commencement of trial for the particular defendant.” Committee on the Administration of the Criminal Law of the Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974, As Amended, at 58-59 (Dec. 1979 Revision). The Guidelines further state that the ending date is:
      the latest permissible date for commencement of the trial of any codefendant with whom the defendant is joined for trial. In the situation in which the (h)(7) exclusion is based on an exclusion applicable to a codefendant, the ending date is the ending date of the code-fendant’s exclusion. In either case, if the join-der ends because of a guilty plea, severance, or other reason, while the (h)(7) exclusion is running, the ending date of the excludable period will be the date on which the joinder ends.

        Id. at 59. The Guidelines clearly do not include a reasonableness limitation. The court in No-vak grafted such a limitation onto the guidelines, which this court declines to do.

      . For example, if 20 days had elapsed on the unitary clock, the severed defendant would have to be brought to trial within 50 days of the granting of the severance motion assuming no additional time is excluded. In computing the time, the delay relating to the motion for severance will be excludable as to all defendants pursuant to 18 U.S.C. § 3161(h)(1)(F).

      . An "Unsevered Defendant" is a defendant who has filed a motion for severance which has been denied.

      . This “reasonableness” determination would be made as part of the court’s ruling on defendant’s motion to sever.

      . If the motion is denied under these circumstances and the government desired to try all codefendants at one time, it would be compelled to commence trial within the time remaining on the "Unsevered Defendant’s” clock considering all applicable direct exclusions. The "Unsevered Defendant’s” clock controls because his Speedy Trial time will run on or before that of any other defendant.

      . It is doubtful that such a situation would occur, because the finding that no additional imputed time would be reasonable is a basis for granting the motion for severance. See R. Mis-ner, Speedy Trial Federal and State Practice § 17-9.2, at 275 (1983).
      The severance motion has the effect of raising the defendant’s objection to waiting for his co-defendant to be brought to trial. Without this motion, the unitary clock will continue to be used. The requirement of making the severance motion is not in conflict with the Supreme Court’s opinion in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which held that there was no requirement that a defendant voice an objection to the setting of a trial date or demand a speedy trial to preserve his constitutional right to a speedy trial, id. at 523-28, 92 S.Ct. at 2188-91. The requirement of the severance motion is applicable only to the statutory speedy trial claim and the failure to move for a severance in no way prejudices a defendant’s constitutional speedy trial claim. Cf. United States v. Quinones, S 84 Cr. 625 (CBM), slip op. at 7 (S.D.N.Y. May 9, 1985) (Opinion) (defendant’s failure to object to exclusion of time constituted waiver of right to object to exclusions under the Speedy Trial Act). A review of compliance with the Act presents a question of statutory interpretation, while satisfying the sixth amendment guarantee is guided by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). United States v. Gonzalez, 671 F.2d 441, 443 (11th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982). See generally Note, The Speedy Trial Act: Conflict Among the Circuits, 29 Buffalo L.Rev. 149, 153-54 (1980) (noting differences between statutory and constitutional speedy trial rights). Coleman and Grant have based their motion solely on the statutory provisions therefore the court need not consider a claim under the sixth amendment. See 18 U.S.C. § 3173 (“No provision of this chapter shall be interpreted as a bar to any claim of denial of speedy trial as required by amendment VI of the Constitution.”).

        . Defendants Coleman and Grant, of course, cannot claim that this case is only complex as to Payden and not as to them. As Judge Connor noted: “Excludable time is not calculated separately on the basis whether the defendant could be brought to trial sooner were he not joined with others.” United States v. Baldinucci, No. SSS 84 Cr. 236 (WCC), slip op. at 6 (S.D.N.Y. Apr. 18, 1985).