Environmental Defense Fund, Inc. v. Heckler

No. 82-3514 (D.D.C. May 27, 1983)

The district court approves a consent decree requiring the Administrator of the Agency for Toxic Substances and Disease Registry (ATSDR) to carry out promptly the duties imposed by § 104(i) of the Comprehensive Environmental Response, Compensation, and Liability Act. ATSDR shall establish and maintain a registry of persons exposed to toxic substances; collect and analyze information relating to serious diseases, mortality, and human exposure to toxic substances; recommend uniform methods for the collection of this information; establish and maintain an inventory of literature and studies on the health effects of toxic substances; compile a list of areas closed to the public or otherwise restricted because of toxic substance contamination; assist in providing medical services to individuals exposed to toxic substances in public emergencies; and study relationships between toxic substance exposure and illness. Furthermore, upon reasonable request, the Administrator shall make the information from the ATSDR available to the Environmental Defense Fund (EDF) to allow EDF to monitor compliance with the decree. Also, defendants shall reimburse EDF for court costs and attorneys fees.

Counsel for Plaintiff
Bruce J. Ennis Jr.
Ennis, Friedman, Bersoff & Ewing
Suite 511, 1200 17th St. NW, Washington DC 20036
(202) 775-8100

Counsel for Defendants
Michael W. Steinberg, Roger J. Marzulla
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3144

[13 ELR 20630]

Johnson, J.:

Consent Decree

WHEREAS, the Environmental Defense Fund (EDF) filed the complaint in this action on December 10, 1982, against the Secretary of the Department of Health and Human Services (HHS), the Department of HHS, the Administrator of the Environmental Protection Agency (EPA), and the EPA, seeking declaratory and injunctive relief relating to the implementation of section 104(i) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9604(i) (Supp. V 1981); and

WHEREAS, defendants filed their answer to EDF's complaint on February 8, 1983, denying many allegations of the complaint and asserting various defenses; and

WHEREAS, EDF and defendants are desirous of reaching a mutually satisfactory settlement of this action and to that end have been involved in good-faith negotiations since the commencement of this action; and

WHEREAS, it is in the public interest, the interests of the parties, and the interest of judicial economy for this action to be resolved without protracted litigation; and

WHEREAS, neither party makes any admissions concerning the merits of EDF's complaint or of defendants' defenses by entering into this Consent Decree;

NOW, THEREFORE, it is hereby ADJUDGED AND DECREED that:

1. The Court has jurisdiction over the parties and the subject-matter of the complaint.

2. The Court determines that the terms of this Consent Decree are reasonable and adequately resolve the issues raised by EDF in this action.

3. The Court finds that the Agency for Toxic Substances and Disease Registry (ATSDR) has been established within the Public Health Service, 48 Fed. Reg. 17,651-52 (April 25, 1983), and that the Director of the Centers for Disease Control has been designated as the Administrator of the ATSDR.

4. The Administrator of the Agency for Toxic Substances and Disease Registry (ATSDR) shall:

(1) (a) in cooperation with the States, and with other federal and local officials, establish and maintain a registry of registries of all persons exposed to toxic substances as a result of environmental exposure, whenever their inclusion in such registries would be scientifically appropriate or valuable for long-term follow-up or specific scientific studies, and (b) conduct peer review, to be completed within one (1) year, on the methods to be used in establishing and maintaining such registries;

(2) in cooperation with the States, and with other federal and local officials, collect, maintain, and analyze information relating to serious diseases and mortality and information relating to human exposure to toxic substances;

(3) recommend within six (6) months uniform methods for the collection of the information described in subparagraph (2) on a national basis, provided that the ATSDR may coordinate its activities with ongoing programs of the National Center for Health Statistics or other federal agencies, and that its recommendations [13 ELR 20631] may consist of endorsing methods or guidelines developed by the National Center for Health Statistics or other federal agencies;

(4) establish within eighteen (18) months and maintain a comprehensive and publicly accessible inventory of literature, research, and studies on the health effects of toxic substances;

(5) in cooperation with the States, and other agencies of the Federal Government, establish within eighteen (18) months and maintain a complete listing of areas closed to the public or otherwise restricted in use because of toxic substances contamination, including, but not limited to, areas where such contamination has restricted fishing or recreation or has affected drinking water wells;

(6) in cases of public health emergenices caused or believed to be caused by exposure to toxic substances, assist, consult, and co-ordinate with private or public health care providers in the provision of medical care and testing of exposed individuals, including the collection and laboratory analysis of specimens as may be indicated by the specific exposure incident; and

(7) conduct periodic survey and screening programs to determine relationships between exposure to toxic substances and illness.

Except as expressly provided herein, nothing in this paragraph shall be construed to limit or modify the discretion accorded to the Administrator by CERCLA and by general principles of administrative law.

5. Upon reasonable request, the Administrator shall furnish EDF with information from the ATSDR, including (1) reasonable access to its officials or staff and (2) written answers to written questions, to enable EDF to determine what progress has been made in implementing this Consent Decree. Nothing in this paragraph shall be construed to limit EDF's ability to obtain information under the Freedom of Information Act.

6. Defendants shall pay to plaintiff, in settlement of this case, the sum of $9,252, which reflects filing fees, costs, attorney's fees, and other expenses incurred in connection with this litigation up through the date of this Consent Decree.

7. Upon approval of this Consent Decree, EDF's complaint shall be, and hereby is, dismissed. However, either EDF or defendants may petition this Court at any time by motion for enforcement of this Consent Decree or for resolution of any dispute over its implementation.

Order

This 27th day of May, 1983, upon consideration of the proposed Consent Decree presented to the Court, it is hereby

ORDERED that Plaintiff-Intervenors Chemical Manufacturers Association (CMA) and American Petroleum Institute (API), having approved the foregoing Consent Decree, shall have the same right to obtain information that is accorded to Plaintiff Environmental Defense Fund (EDF) under paragraph 5 of the Consent Decree, and shall have the same right to petition the Court that is accorded to EDF and to the Defendants under paragraph 7 of the Consent Decree, and that CMA's Complaint and API's Complaint shall be, and hereby are, DISMISSED.