Hanford Downwinders Coalition, Inc. v. Dowdle, 94-35100

Decision Date07 December 1995
Docket NumberNo. 94-35100,94-35100
Parties, 64 USLW 2388, 26 Envtl. L. Rep. 20,236, 95 Cal. Daily Op. Serv. 9289, 95 Daily Journal D.A.R. 16,203 HANFORD DOWNWINDERS COALITION, INC., a nonprofit corporation, on its own behalf and on behalf of its members; Beatrice A. Christoph; Kathi Steinke; and Gloria D. Tinder, as individuals, Plaintiffs-Appellants, v. Dr. Walter DOWDLE, in his capacity as Administrator of the Agency for Toxic Substance and Disease Registry; and Agency for Toxic Substances and Disease Registry, an agency of the United States, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Tom H. Foulds, Tom H. Foulds & Associated Counsel, Seattle, Washington, for plaintiffs-appellants.

Elizabeth Ann Peterson, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington.

Before: FARRIS, NOONAN and HAWKINS, Circuit Judges.

MICHAEL DALY HAWKINS, Circuit Judge:

The Hanford Downwinders Coalition ("HDC") and private plaintiffs appeal the district court's decision to dismiss their request for injunctive relief against defendants-appellees Dr. Walter Dowdle, Administrator of the Agency for Toxic Substances and Disease Registry ("ATSDR"), and the ATSDR. The lower court dismissed the HDC's claim for lack of subject matter jurisdiction and for failure to state a claim based on the Timing of Review provision of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). See 42 U.S.C. Sec. 9613(h) (1988). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and we affirm.

I. FACTS

This case concerns the federal government's continuing efforts to clean up hazardous waste at the Hanford Nuclear Reservation ("Hanford") in Richland, Washington. Beginning in 1943 as part of the Manhattan Project and continuing for approximately thirty years, Hanford produced plutonium for use in this country's national defense program. The production of nuclear materials at Hanford led to the release of radioactive iodine-131 and other hazardous materials into the region's atmosphere, soil, and water. 1 While it has been established that the releases exposed thousands of people in the Pacific Northwest to radioactive iodine, the effects of the releases on the health of those exposed have yet to be determined.

In 1988, the Environmental Protection Agency ("EPA") proposed adding Hanford to the National Priorities List ("NPL"), which ranks the most serious hazardous waste sites across the country. The proposed listing of Hanford on the NPL triggered intra-agency and intra-governmental efforts to formulate a comprehensive cleanup plan for the site. In May, 1989, the EPA, the Department of Energy, and the Washington State Department of Ecology detailed their plans for the cleanup of Hanford in a Federal Facility Agreement and Consent Order ("FFA" or "Agreement"). The FFA not only outlined the goals of the cleanup, but also included an Action Plan detailing how the Agreement was to be implemented.

The Action Plan summarized the specific responsibilities assigned to the ATSDR. The Plan noted that:

CERCLA requires ATSDR to conduct a health assessment within one year following proposal to the NPL for any site proposed after October 17, 1986.

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 or 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.... [T]hese preliminary health assessments will be based on the best available information.

As additional information becomes available, and as appropriate, ATSDR may, at its discretion, expand these preliminary health assessments into full health assessments adding to the overall characterization of the site, or prepare addenda to the health assessments addressing the public health impact of either individual or a combination of operable units at the site.

The ATSDR completed its preliminary draft assessments of the Hanford site in October of 1989, shortly after the EPA formally listed Hanford on the NPL. The draft assessments concluded that because "information is insufficient to adequately assess the public health concerns associated with ... the Hanford site," on-site and off-site environmental monitoring should be continued. The ATSDR would, "[a]s appropriate, ... continue to follow the results of ... relevant studies and reevaluate Hanford for any indicated follow-up."

Since the release of the ATSDR's preliminary health assessments, the Hanford site has been the subject of continued health related research. In September 1993, the ATSDR identified Hanford as among the Superfund sites posing the most serious threat to public health in the country. See Hanford Downwinders Coalition, Inc. v. Dowdle, 841 F.Supp. 1050, 1054 (E.D.Wash.1993) (citing the ATSDR's assessment). 2 In 1994, the Centers for Disease Control released the results of a four-year, $23 million study designed to establish the magnitude of radioactive releases at Hanford. 3 The ATSDR has applied the results of that study to its criteria for determining the appropriateness of medical monitoring activity and presented its analysis to the Hanford Health Effects Subcommittee. 4 In addition, a substantial study designed to assess the effects of the radioactive releases on the health of those exposed is expected to be completed by 1997.

The ATSDR has also participated in several public meetings concerning its health related activities. In the past year, the possibility of beginning an ATSDR medical monitoring program in the region surrounding Hanford has specifically been discussed on at least three separate occasions. See 60 Fed.Reg. 35750-01 (July 11, 1995) (meeting in Pasco, Washington); 60 Fed.Reg. 19263-02 (April 17, 1995) (meeting in Portland); 60 Fed.Reg. 12769-01 (March 8, 1995) (meeting in Spokane). 5

In July 1993, the plaintiffs filed suit in federal district court seeking injunctive relief against the ATSDR. The plaintiffs alleged that the ATSDR has a mandatory duty under CERCLA Sec. 9604(i)(9) to begin a health surveillance program in the Hanford region. The requested injunction would order the ATSDR to initiate Sec. 9604(i)(9) health surveillance activity, including medical testing and monitoring of individuals exposed to releases of radioactive iodine. The defendants moved to have the HDC's claim dismissed under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) based on CERCLA's Timing of Review provision, which prohibits federal courts from exercising jurisdiction over legal challenges to CERCLA "removal" or "remedial" activity. See 42 U.S.C. Sec. 9613(h). Defendants contend that ATSDR health assessment and surveillance activity satisfies the statutory definition of removal action, and thus is entitled to the jurisdictional protection of the Timing of Review provision.

The district court granted the defendants' motion to dismiss. The court held that as a threshold matter, the ATSDR's health related actions at Hanford are properly classified as CERCLA "removal or remedial" activities, and thus the HDC's suit could be subject to CERCLA's Timing of Review provision. The district court then determined that because the HDC's suit challenged ongoing, discretionary ATSDR removal actions, all of Sec. 9613(h)'s requirements had been met and the court had no jurisdiction over the HDC's claims.

The plaintiffs appeal the district court's decision on several grounds. First, the plaintiffs contend that the ATSDR health assessment and surveillance activities are not "removal or remedial" actions, and thus the Timing of Review provision does not apply to the HDC's suit. The plaintiffs also assert that even if ATSDR health assessment and surveillance activity is generally entitled to Sec. 9613(h) protection, two specific Sec. 9613(h) requirements have not been satisfied in this case. The HDC argues first that it is not "challenging" the ATSDR's health assessment and surveillance authorities, and thus Sec. 9613(h) does not apply, and second that the initiation of a health surveillance program is required at Hanford, and Sec. 9613(h) protects only discretionary action.

The HDC also argues that even if the ATSDR's health assessment and surveillance activities satisfy the requirements of the Timing of Review provision, the ATSDR has completed its health assessment activities at Hanford, and thus its suit qualifies for the Sec. 9613(h)(4) "citizen suit" exception. Finally, the plaintiffs assert that application of the Timing of Review's jurisdictional proscription to their claims constitutes a denial of due process.

II. STATUTORY FRAMEWORK
A. CERCLA

Congress enacted CERCLA, 42 U.S.C. Secs. 9601-9675 (1988 & Supp. V 1993), amended by the 1986 Superfund Amendments and Reauthorization Act (SARA), Pub.L. No. 99-499, 100 Stat. 1613 (1986), " 'to protect and preserve public health and the environment' " by facilitating the expeditious and efficient cleanup of hazardous waste sites. Wilshire Westwood Assoc. v. Atlantic Richfield, 881 F.2d 801, 804 (9th Cir.1989) (quoting Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir.1986)). To ensure that cleanup efforts would not be delayed by litigation, Congress included in CERCLA a Timing of Review provision. The provision, codified at 42 U.S.C. Sec. 9613(h), prevents federal courts from exercising jurisdiction over legal challenges to ongoing CERCLA "removal" or "remedial" activity. Section 9613(h) provides in pertinent part:

No Federal court shall have...

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