Hanford Downwinders Coalition, Inc. v. Dowdle, CS-93-0245-AAM

• Decision Date: 23 December 1993
• Docket Number: CS-93-0290-AAM.,No. CS-93-0245-AAM,CS-93-0245-AAM
• Citation: 841 F. Supp. 1050
• Parties: HANFORD DOWNWINDERS COALITION, INC., et al., Plaintiffs, v. Dr. Walter DOWDLE, et al., Defendants. COLUMBIA RIVER UNITED, et al., Plaintiffs, v. Dr. Walter DOWDLE, et al., Defendants.
• Court: U.S. District Court — District of Washington

841 F. Supp. 1050

HANFORD DOWNWINDERS COALITION, INC., et al., Plaintiffs, v. Dr. Walter DOWDLE, et al., Defendants.

COLUMBIA RIVER UNITED, et al., Plaintiffs, v. Dr. Walter DOWDLE, et al., Defendants.

Nos. CS-93-0245-AAM, CS-93-0290-AAM.

United States District Court, E.D. Washington.

December 23, 1993.

COPYRIGHT MATERIAL OMITTED

Tom H. Foulds of Tom H. Foulds & Associated Counsel, Seattle, WA, for plaintiff Hanford Downwinders Coalition.

Nancy Malee Oreskovich, Spokane, WA, for plaintiff Columbia River United.

Robin L. Juni, U.S. Dept. of Justice, Washington, DC, for U.S.

McDONALD, District Judge.

On December 9, 1993, the Court heard oral argument on the United States' motions to dismiss the two above-entitled civil actions (CS-93-0245-AAM, Ct.Rec. 8, CS-93-0290-AAM, Ct.Rec. 4). Appearing for plaintiffs in the Hanford Downwinders Coalition action was Tom Foulds. Appearing for plaintiffs in the Columbia River United action was Nancy Oreskovich. Appearing for the United States was Robin Juni. Also before the Court for resolution without oral argument is the United States' motion for a protective order in the Columbia River United case (Ct.Rec. 11). For the reasons discussed more fully below, the Court is granting both motions to dismiss. The Court is also denying as moot the United States' motion for a protective order.

SUMMARY:

Before the Court are two separate actions. The first is brought by the Hanford Downwinders Coalition, its members, and individual plaintiffs. The second is brought by Columbia River United, its members, and individual plaintiffs. The Columbia River United action also is nominally brought on behalf of a class of similarly situated individuals.

While these two cases concern substantially the same facts, they interpret the facts differently and seek rather different remedies. Both are based on the Agency for Toxic Substances and Disease Registry's (ATSDR) conduct pertaining to health assessments and other health related activities at the Hanford Nuclear Reservation (Hanford). The Hanford Downwinders Coalition complaint alleges that the Agency has failed to initiate a mandatory health surveillance program for exposed persons around the Hanford facility. Plaintiffs therefore seek injunctive relief ordering the Agency to initiate such a program.

The Columbia River United complaint alleges that the Agency has failed to conduct mandatory initial health assessments at Hanford. Plaintiffs principally seek declaratory relief concerning the Agency's failure to perform non-discretionary duties. Plaintiffs also seek an accounting of all expenditures by the Agency for Hanford health related activities. Finally, plaintiffs seek an injunction against any further spending by the ATSDR until the declaratory relief is granted and the accounting is provided.

Defendants, Dr. Walter Dowdle in his official capacity as Administrator of the Agency, and the Agency itself, move the Court to dismiss both cases. Defendants' principal argument is that the Court lacks subject matter jurisdiction over the claims because they constitute challenges to removal actions selected under Superfund. Defendants further argue that, even if the Court does find that it has jurisdiction, it should still dismiss for other jurisdictional reasons, including plaintiffs' failure to identify any breaches of non-discretionary duties, and failure to give the required notice of intent to sue. For the reasons discussed more fully below, the Court finds that, under Superfund's timing of review provision, the Court does not have subject matter jurisdiction to hear either complaint. The Court is therefore dismissing both complaints without prejudice.

FACTS:

1. Activities at Hanford

In June, 1988, the Environmental Protection Agency (EPA) proposed listing four areas at Hanford on the National Priorities List (NPL). On October 4, 1989, EPA formally listed the four areas on the NPL. 54 Fed.Reg. 41,015-10 (1989). In May, 1989, in anticipation of the listing of areas at Hanford, the EPA, the Department of Energy, and the State of Washington entered into a Federal Facility Agreement and Consent Order (FFA). Heart of America Northwest v. Westinghouse Hanford Co., 820 F.Supp. 1265, 1269 (E.D.Wash.1993).

The Agreement also included an Action Plan for implementation of the Agreement. Id. As amended through August, 1992, the Action Plan includes a section outlining the activities of the ATSDR at Hanford. United States' Memorandum in Support of Motion to Dismiss Hanford Downwinders Coalition First Amended Complaint (Ct.Rec. 10) at Ex. A, p. 7-24. The Action Plan acknowledges that the ATSDR is required to conduct a health assessment within one year of Hanford's proposed listing on the NPL. The Action Plan continues as follows:

The ATSDR health assessment is the result of the evaluation of data and information on the release of hazardous substances into the environment. Its purpose is to assess any current or future impacts on public health, to develop health advisories and other health recommendations, and to identify studies or actions needed to evaluate and mitigate or prevent adverse human health effects.

The ATSDR will prepare a preliminary health assessment for each of the four Hanford NPL areas (the 100, 200, 300, and 1100 Areas). Since the RI Phase I reports for these areas will not be available within one year following the proposal of Hanford to the NPL, these preliminary health assessments will be based on the best available information.

Id.

In October, 1989, the ATSDR completed four draft preliminary health assessments, one for each of the listed areas at Hanford. United States' Reply Memorandum in Support of Motion to Dismiss Columbia River United's Complaint (Ct.Rec. 14) at Ex. A-D. It is not clear from the record whether these draft preliminary assessments were ever released to the public or published. However, in correspondence from the ATSDR that is attached to the Columbia River United complaint, the ATSDR referenced these draft assessments and stated as follows:

In preparing preliminary and/or full health assessments for this site, ATSDR intends to use the initial draft preliminary assessments for informational purposes only. The Agency does not consider these existing draft preliminary health assessments as an official evaluation of the four Hanford NPL sites (they have not been finalized) nor as a final evaluation of the health effects at Hanford.

Columbia River United Complaint (Ct.Rec. 1) at Ex. A, letter of August 16, 1991 from Robert Williams, Director, Division of Health Assessment and Consultation, ATSDR, to Peter Nordberg.

According to the both complaints, the Center for Disease Control, "a sister agency" of the ATSDR, is undertaking a study of the radiation doses received by members of the Hanford community from past releases at the facility. See, e.g., Hanford Downwinders Coalition First Amended Complaint (Ct.Rec. 3) at 7. The first phase of that study, the Hanford Environmental Dose Reconstruction Study (HEDR) has apparently been completed and a final report thereon was issued in August, 1991. Aside from these references in the complaints to the HEDR study, nothing in the record reflects who is responsible for undertaking the study, what its scope is, or what future research is planned.

Further, according to draft documents attached to the Hanford Downwinders' complaint, in April, 1993, the ATSDR proposed four additional Hanford health related studies. Ct.Rec. 3 at Ex. A. From the excerpt of the draft document provided, it is unclear to whom the ATSDR proposed these studies. Nor does the record reflect whether these studies have been approved. Nevertheless, the proposed studies are intended to collect needed health information including the following: "an overview of available health statistics, a follow up of persons exposed to the major releases, and a specialized follow up on children previously monitored for whole body radiation." Id. at 3.

Finally, in September, 1993, the ATSDR published an Announcement of Priorities for Conducting Public Health Assessments at Department of Defense and Department of Energy Facilities. 58 Fed.Reg. 49,517 (1993). The priority ranking system was based on the acknowledgement that "Current resources at ATSDR are inadequate to presently initiate public health assessments at each of the Federal facilities listed on the NPL." Id. at 49,517. Accordingly, ATSDR developed the site ranking scheme as a planning tool to identify the sites that "pose the greatest relative risk to public health." Id. The Agency states, however, that "The interim Site Ranking Scheme is not intended to take the place of a public health assessment." Id. Of the 115 Department of Defense and Department of Energy sites ranked by the ATSDR, three of the four sites at Hanford are at the top of the list. That is, they are the sites identified by ATSDR as posing the greatest risk to public health.

While the record is incomplete at this time, the Court can reasonably draw the following conclusions from what has been presented. ATSDR considers Hanford a top priority for public health assessments. ATSDR drafted preliminary health assessments for Hanford in October, 1989, but has not yet finalized those assessments. Further, ATSDR is aware of and possibly involved with ongoing health related work at Hanford including the HEDR. Finally, ATSDR is involved with designing and proposing additional health related studies of the effects of past emissions at the Hanford facility.

2. Statutory provisions governing ATSDR health assessments, registries, epidemiological studies, and health surveillance

Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) created the ATSDR. 42 U.S.C. § 9604(i)(1). The Act specifies several responsibilities for the Agency, including the health related studies at Superfund sites that are at issue in the cases at bar. All of the...