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Hanford Downwinders Coalition v. Dowdle

ELR Citation: 26 ELR 20236
Nos. No. 94-35100, 71 F.3d 1469/41 ERC 1925/(9th Cir., 12/07/1995) aff'd

The court holds that §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars a suit by local residents to compel the Agency for Toxic Substances and Disease Registry (ATSDR) to begin a health surveillance program near the Hanford Nuclear Reservation in Richland, Washington. Hanford is listed on the CERCLA national priorities list (NPL). The court first holds that Congress' characterization of the ATSDR's duties as "health related authorities" does not mean that Congress intended to distinguish those duties from "response authorities." The phrase "health related authorities" appears in CERCLA §104, which is entitled "response authorities," indicating that the ATSDR's health-related authorities are a subset of broader CERCLA response authority. Further, Congress specifically characterized actions taken to effectuate other public health authorities as "response measures." The court holds that the ATSDR activities at Hanford satisfy CERCLA §101(23)'s definition of "removal action," because the activities challenged are a necessary part of the government's efforts to safeguard the public health at NPL sites. Although courts have held that private-party medical monitoring activities are not removal or remedial actions, Congress' decision to expand the role of government health assessment and surveillance activities in the 1986 amendments to CERCLA stands in stark contrast to Congress' treatment of private medical monitoring programs. As removal actions, the ATSDR's activities are eligible for §113(h)'s protection. That CERCLA §107(a)(4)(A) provides for the recovery of all costs of removal or remedial action, while §107(a)(4)(D) provides for the recovery of the costs of ATSDR health-assessment or health-effects studies does not mean that Congress intended to distinguish ATSDR activities from removal or remedial activities. The legislative history demonstrates that Congress agreed that at least some ATSDR health-assessment activities were response actions.

The court next holds that the suit is a "challenge" to the ATSDR's action. It clearly constitutes a challenge to the federal government's continuing response activity at Hanford, because it amounts to an effort to read into CERCLA and the Hanford federal facility agreement a duty to initiate a health surveillance program at the local residents' request. As such, it is subject to §113(h)'s jurisdictional bar. The court next rejects the residents' argument that initiation of a medical monitoring program at Hanford is statutorily mandated, and thus is not a discretionary measure "selected" by the ATSDR. Until the ATSDR determines that exposure to the site poses a significant risk of adverse health effects, which it has not, the decision to begin a health surveillance program is within its discretion. The court next holds that the ATSDR's health assessments at the site thus far do not fall within §113(h)'s exception to the jurisdictional bar for actions "taken" under §104. The cleanup at Hanford is clearly in its pendency, and the ATSDR continues to monitor Hanford-related research, to work with other organizations involved in implementing the federal facility agreement, and to consider the initiation of medical surveillance programs. Also, although the preliminary health assessments have been completed, they have not been finalized. Finally, the court holds that application of the §113(h) bar to the suit does not deprive the residents of "their day in court." Application of §113(h) is appropriate even if there is a possibility that the claims will never be heard in federal court.

[The district court's opinion is published at 24 ELR 20730. Briefs are digested at ELR BRIEFS & PLEADS. 66408.]

Counsel for Plaintiffs
Tom H. Foulds
Tom H. Foulds & Associates
703 6th Ave. N., Seattle WA 98109
(206) 285-8390

Counsel for Defendants
Elizabeth A. Peterson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Farris, Noonan, and Hawkins, JJ.