IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK



F.A.C.T.S. (FOR A CLEAN TONAWANDA

SITE), INC.,

Plaintiff,

vs. No:

UNITED STATES NUCLEAR REGULATORY

COMMISSION, CARL J. PAPERIELLO, in his

capacity as Director of the Office of Nuclear

Material Safety and Safeguards, UNITED

STATES DEPARTMENT OF ENERGY, JAMES

M. FIORE, in his capacity as Deputy Assistant

Secretary for Environmental Restoration,

UNITED STATES ARMY CORPS OF

ENGINEERS, DR. JOHN H. ZIRSCHKY, in his

capacity as Acting Secretary of the Army (Civil

Works), LT. COL. MICHAEL J. CONRAD, JR.,

in his capacity as District Manager of the Buffalo

District of the Army Corps of Engineers.

Defendants.



COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I. Introduction

1.This is an action for declaratory and injunctive relief brought under the Administrative Procedure Act ("APA"), 5 U.S.C. 701-706, the Declaratory Judgments Act ("DJA"), 28 U.S.C. 2201 and 2202, Fed. R. Civ. P. Rule 57, the Atomic Energy Act of 1954 ("AEA"), 42 U.S.C. 2011 et seq., as amended by the Uranium Mill Tailings Radiation Control Act ("UMTRCA"), P.L. 95-604, 92 Stat. 3020, and the National Enviromental Policy Act ("NEPA"), 42 U.S.C. 4321 et seq., as amended.

2.This action is brought for the purpose of determining a question of actual controversy between the parties as hereinafter more fully appears, and for the purpose of obtaining an injunction against the defendant, United States Army Corps of Engineers ("USACE"), enjoining it from proceeding with the cleanup of the FUSRAP Tonawanda Site (hereinafter described) pursuant to its Record of Decision ("ROD") issued on or about April 20, 1998, and from performing "interim actions" at the Linde property (hereinafter described).

3.Plaintiff seeks a declaratory judgment, injunctive relief and an award of costs including reasonable attorney's fees and expert witness fees.

II. Jurisdiction and Venue

4.Jurisdiction is based upon 28 U.S.C. 1331, the APA, 5 U.S.C. 702, the AEA, 42 U.S.C. 2011 et seq., as amended by the UMTRCA, P.L. 95-604, 92 Stat. 3020, and NEPA, 42 U.S.C. 4321 et seq., as amended.

5.Venue is appropriate in the Western District of New York pursuant to 5 U.S.C. 703 and 28 U.S.C. 1391.

III. Parties

6.Plaintiff, F.A.C.T.S. (For a Clean Tonawanda Site), Inc. (F.A.C.T.S.), sues on behalf of both itself and its members. F.A.C.T.S. is a not-for-profit corporation organized under the laws of the State of New York, with its principle place of business in Tonawanda, New York. F.A.C.T.S. is a membership organization, most of the members of which live in or near the Town of Tonawanda, New York, the specific area invloved in this dispute. F.A.C.T.S. is dedicated to open government and to the safe and proper cleanup of radioactive waste in Tonawanda, New York. To this end, F.A.C.T.S. engages in activities designed to increase the public's awareness of government activities relative to properties contaminated with radioactive wastes. F.A.C.T.S. is also a government-recognized stakeholder in the environmental review process relative to the remediation of the Formerly Utilized Sites Remedial Action Program (FUSRAP) Site in Tonawanda, New York (hereinafter described). F.A.C.T.S. seeks to achieve a safe and proper cleanup of radioactive wastes in Tonawanda, New York, by inter alia, taking action on behalf of itself and its members to ensure that state and federal officials fulfill their statutory mandate to protect public health and the environment and to ensure the safe management of radioactive wastes. Plaintiff's members have contributed financially to it in part so that they may obtain adequate representation of their legally protected interests, which representation they could not otherwise individually afford. Each of the members of F.A.C.T.S. has a personal interest in the safe and proper cleanup of radioactive wastes in Tonawanda, New York.

7.Members of F.A.C.T.S. live in or near the Town of Tonawanda, New York, in the vicinity of, or own property or recreate near the properties comprising the FUSRAP Tonawanda Site, which is contaminated with radioactive wastes. The health, recreational, economic, aesthetic, and environmental interests of F.A.C.T.S. members have been, are being, and will be adversely affected by defendants acts or omissions as described herein. Their health and the quality of their environment will be impaired by the release of radon gas and other radioactive hazards from radioactive wastes improperly remediated by the defendants. The FUSRAP Tonawanda Site exists in close proximity to areas frequented by residents Western New York and/or the Town of Tonawanda, including F.A.C.T.S. members. Members of F.A.C.T.S. are limited in the use they may safely make of park lands and other public spaces in close proximity to the FUSRAP Tonawanda Site, and their use and enjoyment of their residential communities is impaired by the presence of radioactive contamination, and will continue to be impaired by improperly remediated radioactive contamination, at the FUSRAP Tonawanda Site. Members of F.A.C.T.S. are required to breathe the air of the State of New York within the Town of Tonawanda in the vicinity of the FUSRAP Tonawanda Site. They are aggrieved and adversely affected by the discharge of radon gas into the air, and by the release and/or threatened release of other radioactive constituents, and will continue to be adversely affected by such discharges and releases and/or threatened releases if the requested relief is withheld.

8.Don Finch is a member of F.A.C.T.S. who resides at 208 School Street, Kenmore, New York. Mr. Finch resides, works and recreates near the properties comprising the FUSRAP Tonawanda Site.

9.Thomas Schafer is member of F.A.C.T.S. who resides at 122 Orchard Drive, Tonawanda, New York. Mr. Schafer resides, works and recreates near the properties comprising the FUSRAP Tonawanda Site. He frequents park lands owned by the Town of Tonwanda which exist in close proximity to the FUSRAP Tonawanda Site.

10.William M. Watson is a member of F.A.C.T.S. who resides at 771 Fletcher Drive, Tonawanda, New York. Mr. Watson resides less than one mile from the FUSRAP Tonawanda Site(s). He is an avid birdwatcher and frequents areas adjacent to the Sites in pursuit of his hobby.

11.Dorothy M. Watson is a member of F.A.C.T.S. who resides at 771 Fletcher Drive, Tonawanda, New York. Mrs. Watson resides with her husband less than one mile from the FUSRAP Tonawanda Sites.

12.The interests of the Plaintiff and its members who are residents of the area involved in this dispute are within the zone of interests intended to be protected by the statutes upon which this action is based, namely, the AEA, as amended by the UMTRCA, and NEPA.

13.Defendant, UNITED STATES NUCLEAR REGULATORY COMMISSION ("USNRC"), is an agency of the United States organized and existing under 5801 et seq. of Title 42 of the United States Code, 42 U.S.C. 5801 et seq.

14.Pursuant to Section 84 of the AEA, as amended, 42 U.S.C. 2114, defendant, USNRC, is responsible for the management of byproduct material as defined in Section 11(e)(2) of the AEA, as amended, 42 U.S.C. 2014(e)(2).

15.Upon information and belief, defendant, CARL J. PAPERIELLO, is the director of the Office of Nuclear Material Safety and Safeguards ("NMSS"), USNRC. He is responsible for the remediation of, inter alia, 11(e)(2) byproduct material through implementation of USNRC's Site Decommissioning Management Plan ("SDMP").

16.Defendant, UNITED STATES DEPARTMENT OF ENERGY ("USDOE"), is an agency of the United States organized and existing under 7101 et seq. of Title 42 of the United States Code, 42 U.S.C. 7101 et seq.

17.Defendant, USDOE, has claimed jurisdiction over, and/or ownership of, the 11(e)(2) byproduct material at the Tonawanda FUSRAP Site.

18.Until October, 1997, USDOE claimed responsibility for the cleanup of the FUSRAP Tonawanda Site. In 1988, USDOE issued a Notice of Intent to prepare an Environmental Impact Statement ("EIS") with respect the remediation of the FUSRAP Tonawanda Site. In 1993, USDOE issued a combined draft EIS and Remedial Investigation and Feasibility Study ("RI/FS") with respect to the remediation of the FUSRAP Tonawanda Site. Thereafter, USDOE failed to issue a Final EIS and suspended the NEPA environmental review process at the FUSRAP Tonawanda Site, deciding instead to proceed exclusively under CERCLA.

19.Upon information and belief, defendant, JAMES M. FIORE, is Deputy Assistant Secretary for Environmental Restoration, USDOE. He was responsible for the implementation of FUSRAP while the program was administered by USDOE, as well as for the USDOE's claim of jurisdiction over the 11(e)(2) byproduct material at the FUSRAP Tonawanda Site.

20.Defendant UNITED STATES ARMY CORPS OF ENGINEERS ("USACE"), is a Division of the Department of the Army, organized under 10 U.S.C. 3063.

21.Defendant, USACE, has assumed responsibility (as of October, 1997) for the administration and execution of the FUSRAP, and as such, has or will exercise control over 11(e)(2) byproduct material at the Tonawanda FUSRAP Site.

22.Upon information and belief, defendant, DR. JOHN H. ZIRSCHKY, is Acting Secretary of the Army (Civil Works). He signed the Record of Decision for the Ashland 1 (Including Seaway Area D) and Ashland 2 Sites, dated April 20, 1998, and is responsible for the administration and execution of FUSRAP.

23.Upon information and belief, defendant, LT. COL. MICHAEL J. CONRAD, JR., is District Manager of the Buffalo District of USACE. He is responsible for the administration and execution of FUSRAP at the FUSRAP Tonawanda Site.

IV. General Substantive Allegations

24.Upon information and belief, the Formerly Utilized Sites Remedial Action Program ("FUSRAP") was a USDOE program to identify and perform remedial actions at former nuclear materials storage and processing facilities. FUSRAP sites became radioactively contaminated with wastes from Manhattan Engineer District or Atomic Energy Commission ("MED/AEC") related activities.

25.Upon information and belief, the FUSRAP Tonawanda Site consists of five properties: Linde (now Praxair), Ashland 1, Ashland 2, Seaway Landfill, and the Town of Tonawanda Landfill. These properties, as well as area ground and surface waters, were contaminated with radioactive material as a result of MED/AEC operations during and after World War II.

26.Upon information and belief, between 1942 and 1946, 8,000 tons of filter cake residues resulting from the processing of domestic uranium ores at Linde were dumped on the ground at Ashland 1 in a layer 1 to 5 feet thick. The original volume of these residues was approximately 6000 cubic yards. The forces of erosion, combined with a complete lack of regulatory control which allowed the transfer of material to Ashland 2, and Seaway, have spread the contamination and increased the volume of contaminated soil to over 352,000 cubic yards. The wastes contain: 26.5 Curies (Ci) of total uranium (3,200 lbs per Curie) consisting of 13 Ci each of U-238 and U-234, and 0.5 Ci of U-235; approximately 5 Ci of radium-226 (half-life: 1,600 years); from 39 to 52 Ci of thorium-230 (half-life: 77,000 years); and other decay chain members.

27.Upon information and belief, contaminated liquids were also discharged during MED/AEC operations at Linde, as follows: 55 million gallons containing 3.7 Ci of total uranium and 5.5 Ci of radium-226 were disposed of in 7 bedrock injection wells on the Linde property; 56 million gallons of contaminated liquids containing 3.8 Ci of total uranium and 5.6 Curies of radium-226 were disposed of into the Town of Tonawanda's storm sewers and Two Mile Creek. An additional 6.5 Ci of natural uranium and 2.6 Ci of radium-226 were disposed of into Tonawanda's sanitary sewers.

28.Upon information and belief, buildings at Linde/Praxair are also contaminated with radioactive waste as a result of MED/AEC related activities.

29.The FUSRAP Tonawanda Site is contaminated with radioactive material which is properly classified as byproduct material pursuant to Section 11(e)(2) of the AEA, 42 U.S.C. 2014(e)(2), as amended by UMTRCA, P.L. 95-604, 92 Stat. 3020, et seq. As such the possession and transfer of such material required, and continues to require, a USNRC license.

30.Upon information and belief, the radioactive material disposed of at the Ashland 1 Site also satisfied, and continues to satisfy, the definition of the "source material" pursuant to Section 11(z)(2) of the AEA, 42 U.S.C. 2014(z)(2), and 10 C.F.R. Part 40, because it contained uranium in excess of 0.05%. As such the possession and transfer of such material required, and continues to require, a USNRC license.

31.Upon information and belief, New York is or was an "Agreement State" pursuant to Section 274 of the AEA, as amended, 42 U.S.C. 2021. Under its authority as such an Agreement State, New York State, by the New York State Department of Labor ("NYSDOL"), issued a license to Linde/Praxair for the handling of radioactive material at the Linde Site. Upon information and belief, in June, 1996, NYSDOL deleted an amendment to said license which permitted the handling of radioactive material at the Linde Property. Such deletion was effected without USNRC assurance that the Site had been decommissioned in accordance with USNRC regulations and was therefore in violation of the AEA.

32.In 1988, USDOE issued a Notice of Intent to Prepare an Environmental Impact Statement ("EIS") to evaluate alternative remedial actions for the long-term management of Tonawanda Site wastes. In so doing, USDOE determined that an EIS is the appropriate level of NEPA review necessary to adequately inform decision-makers and the public of reasonable alternatives for minimizing any adverse impacts of the proposed action.

33.In 1993, USDOE released a Draft Remedial Investigation/Feasibility Study - Environmental Impact Statement (Draft RI/FS - EIS) package for the FUSRAP Tonawanda Site.

34.In April 1994, USDOE "suspended" the integrated NEPA/CERCLA EIS-environmental review process, stating that NEPA review was not being terminated at the Tonawanda Site, but that its future policy would be to incorporate NEPA values into CERCLA documentation.

35.USDOE never issued a Final EIS.

36.Without issuing a Final EIS, USDOE prepared a Draft Proposed Plan for the Ashland 1 and Ashland 2 Sites.

37.Upon transfer of the responsibility and funding for the FUSRAP, the USDOE-developed Draft Proposed Plan was adopted verbatim by USACE and released solely as a CERCLA document. USACE never issued a Final EIS.

38.Neither defendants USDOE nor USACE consulted with, or obtained comments from, defendant USNRC, with respect to the environmental review process relative to the remediation of the FUSRAP Tonawanda Site.

V. First Cause of Action: Plaintiff Seeks Declaratory Judgment

That Defendant USNRC Has Regulatory Jurisdiction Over

11(e)(2) Byproduct Material at the FUSRAP Tonawanda Site

And That Defendant USACE Lacks Such Jurisdiction.

39.Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 38 above.

40.This cause of action is for a Declaratory Judgment pursuant to 28 U.S.C. 2201 for the purposes of determining a question of actual controversy between Plaintiff and defendants, as hereinafter more fully appears.

41.Jurisdiction is based on 28 U.S.C. 1331 and the Atomic Energy Act of 1954 ("AEA"), as amended by the Uranium Mill Tailings Radiation Control Act ("UMTRCA"), P.L. 95-604, 92 Stat. 3020.

42.Section 11(e)(2) of the AEA, 42 U.S.C. 2014(e)(2) defines the term "byproduct material" to mean:

(1) any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material, and (2) "the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content."

43.Section 11(z) of the AEA, 42 U.S.C. 2014(e)(2) defines the term "source material" to mean

(1) uranium, thorium, or any other material which is determined by the Commission pursuant to the provisions of section 2091 of [Title 42] to be source material; or (2) ores containing one or more of the foregoing materials, in such concentration as the Commission may by regulation determine from time to time.

44.Title 10, Part 40, 40.5 of the Code of Federal Regulations, defines "source material" as "(1) Uranium or thorium, or any combination thereof in any physical or chemical form or (2) ores which contain by weight one twentieth of one percent (0.05%) or more of: (i) Uranium, (ii) thorium or (iii) any combination thereof."

45.42 U.S.C. 2092 provides that:

Unless authorized by a general or specific license issued by the Commission which the Commission is authorized to issue, no person may transfer or receive in interstate commerce, transfer, deliver, receive possession of or title to, or import into or export from the United States any source material after removal from its place of deposit in nature, except that licenses shall not be required for quantities of source material which, in the opinion of the Commission, are unimportant.

46.Section 84 of the AEA, 42 U.S.C. 2114, as added by UMTRCA, 205(a), P.L. 95-604, 92 Stat. 3039, provides that the NRC shall insure that the management of any byproduct material, as defined in section 11(e)(2) of the AEA is carried out in such manner as is specified therein.

47.42 U.S.C. 2111 states that "[n]o person may transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, own, possess, import, or export any byproduct material" except pursuant to a license or exemption issued by USNRC.

48.Upon information and belief, all or substantially all of the radioactive material located at the Ashland 1 and Ashland 2 Sites, the Seaway Landfill and the Town of Tonawanda Landfill, are 11(e)(2) byproduct materials.

49.Upon information and belief, all or substantially all of the radioactive material located at the Ashland 1 and Ashland 2 Sites, and the Seaway Landfill also meet the definition of "source material" provided in 10 C.F.R. 40.5.(1)

50.Upon information and belief, USACE has no authority to transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, own, possess, import or export any byproduct material.

51.Upon information and belief, USACE has no authority to transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, own, possess, import or export any source material.

52.Notwithstanding the foregoing, USACE has undertaken to remediate the FUSRAP Tonawanda Site under the Comprehensive Environmental Response, Compensation and Liability Act. 42 U.S.C. 9601 et seq.

53.Upon information and belief, the NRC has failed, and continues to fail, to insure that the management of such byproduct material at the FUSRAP Tonawanda Site is carried out according to the applicable provisions of the AEA, as amended, and the regulations promulgated thereunder.

54.By letters dated December 27, 1996 and January 4, 1998, Plaintiff informed defendant USNRC of its belief that the radioactive material at the FUSRAP Tonawanda Site was subject to USNRC jurisdiction and requested that USNRC assume jurisdiction over said materials.

55.To date, defendant USNRC has refused to assume regulatory jurisdiction over the 11(e)(2) byproduct material and/or source material at the FUSRAP Tonawanda Site. By letter dated February 6, 1998, Richard L. Bangart, Director, USNRC Office of State Programs, informed Plaintiff that USNRC lacks jurisdiction over the 11(e)(2) byproduct materials at the FUSRAP Tonawanda Site. Upon information and belief, defendant, USNRC, has no intention of assuming jurisdiction over the 11(e)(2) byproduct material and/or source material at the FUSRAP Tonawanda Site.

56.Defendant USNRC's failure to exercise regulatory jurisdiction over the 11(e)(2) byproduct material and/or source material at the FUSRAP Tonawanda Site has injured, and will injure, the Plaintiff and members of the Plaintiff organization in that remediation of the FUSRAP Tonawanda Site in the absence of such exercise of regulatory jurisdiction by the defendant, USNRC, will fail to accord the protection to Plaintiff and members of Plaintiff organization required by the AEA as amended by UMTRCA.

57.Defendant, USACE's, issuance of the April, 1998, Record of Decision, and its intention to proceed with Site remediation in accordance therewith, and its continued "interim actions" at the Linde property, constitutes an imminent injury to the Plaintiff and its members. Said injury is redressible by the relief sought by this complaint.

VI. Second Cause of Action: Plaintiff Seeks Declaratory

JudgmentThat Defendants Have Violated NEPA.

58.Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 57, above.

59.In 1988, USDOE issued a Notice of Intent to prepare an Environmental Impact Statement ("EIS") with respect the remediation of the FUSRAP Tonawanda Site. In so doing, USDOE determined that an EIS is the appropriate level of NEPA review necessary to adequately inform decision-makers and the public of reasonable alternatives for minimizing any adverse impacts of the proposed action.

60.In 1993, USDOE released a combined Draft Remedial Investigation/Feasibility Study - Environmental Impact Statement (Draft RI/FS - EIS) package for the FUSRAP Tonawanda Site.

61.In April 1994, USDOE suspended the integrated NEPA/CERCLA EIS-environmental review process, stating that NEPA review was not being terminated at the Tonawanda Site, but that its future policy would be to incorporate NEPA values into CERCLA documentation.

62.Thereafter, USDOE failed to issue a Final EIS and completely suspended the NEPA environmental review process at the FUSRAP Tonawanda Site, deciding instead to proceed exclusively under CERCLA.

63.NEPA requires that all environmental impacts of a proposed action be addressed. 42 U.S.C. 4332(2)(C). USDOE and USACE have violated this requirement of NEPA by failing to consider environmental impacts beyond 1000 years in the future. The half-life of the radioactive materials at the FUSRAP Tonawanda Site is of the order of tens of thousands of years.

64.NEPA requires that, prior to making the environmental impact statement, the responsible federal official shall consult with and obtain the comments of any Federal agency, which has jurisdiction by law or any special expertise with respect to any environmental impact involved. 42 U.S.C. 4332(2)(C).

65.Upon information and belief, USNRC has jurisdiction and/or expertise with respect to the environmental impact(s) involved with the remediation of the FUSRAP Tonawanda Site.

66.Upon information and belief, neither defendants USDOE nor USACE consulted with, or obtained comments from, defendant USNRC, with respect to the environmental review process relative to the remediation of the FUSRAP Tonawanda Site.

67.40 C.F.R. 1503.2 requires that all federal agencies having jurisdiction by law or expertise with respect to any environmental impact involved and agencies which are authorized to develop and enforce environmental standards shall comment on statements within their jurisdiction, expertise or authority.

68.Upon information and belief USNRC has failed to comment on any proposed action in connection with the FUSRAP Tonawanda Site.

69.Upon information and belief, the Record of Decision released on April 20, 1998, with respect to the Ashland 1 (Including Seaway Area D) and Ashland 2 Sites, and the "interim actions" performed at the Linde property, constitute improper segmentation of the review process with respect to the FUSRAP Tonawanda Site, designed to avoid full NEPA review of proposed action.

70.

Prayer for Relief

WHEREFORE, Plaintiff respectfully requests that this Court:

A. Enter a declaratory judgment that defendant, USNRC, has regulatory jurisdiction and authority over all 11(e)(2) byproduct material and/or source material at the FUSRAP Tonawanda Site; and

B. Enter a declaratory judgment that defendant, USACE, acted arbitrarily and capriciously by failing to consider 10 C.F.R. Part 40 as an Applicable or Relavant and Appropriate Requirement (ARAR) in its Record of Decision for the Ashland 1 (Including Seaway Area D) and Ashland 2 Sites, dated April, 1998; and

C. Enter a declaratory judgment that defendant, USACE, acted arbitrarily and capriciously in failing to consider all impacts of its proposed remedial action as set forth in its Record of Decision for the Ashland 1 (Including Seaway Area D) and Ashland 2 Sites, dated April, 1998, as required by the National Environmental Policy Act; and

D. Declare that the Record of Decision for the Ashland 1 (Including Seaway Area D) and Ashland 2 Sites, dated April, 1998, is null and void, of no effect, and unauthorized by law.

E. Enjoin defendant, USACE, from proceeding with the remediation of the Ashland 1 and Ashland 2 Sites, pursuant to the Record of Decision issued on April 20, 1998, or otherwise, unless and until defendant, USNRC, properly exercises regulatory jurisdiction over the 11(e)(2) byproduct material at the FUSRAP Tonawanda Site; and

F. Enjoin defendant, USACE, from proceeding with any "interim action" at the Linde Site unless and until defendant, USNRC, properly exercises regulatory jurisdiction over said Site; and

G. Award Plaintiff its costs and reasonable attorney's fees in this action pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412 <<and 5 U.S.C. 504>>

H. Grant such other and further relief as the Court may deem just and proper.

Respectfully submitted,

Francis C. Amendola, Esq.

305 Elmwood Avenue

Buffalo, NY 14222

(716) 884-6733

Attorney for Plaintiff

1 As of January 1, 1959, 10 C.F.R. 40.2 defined "source material" as "any material, except fissionable material, which contains by weight one twentieth of one percent (0.05%) or more of (1) uranium, (2) thorium, or (3) any combination thereof. At that time, the property now know as Ashland 1 was owned by the government. A radiological survey performed in 1957 indicated that the material deposited on the site contained more than 0.05% uranium. Said material was therefore source material and required a license for transfer. Nevertheless, the property was transferred to Ashland Oil by quitclaim deed in 1960, without a license.