Pritikin v. Dept. of Energy

• Decision Date: 15 February 2001
• Docket Number: No. 99-35581,DEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT,99-35581
• Citation: 254 F.3d 791
• Parties: (9th Cir. 2001) TRISHA T. PRITIKIN,, v. DEPARTMENT OF ENERGY, JOHN D. WAGONER, IN HIS OFFICIAL CAPACITY AS MANAGER OF DOE RICHLAND OPERATIONS, AND SPENCER ABRAHAM, <A HREF="#fr1-1" name="fn1-1">1 IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE US DOE,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 791

254 F.3d 791 (9th Cir. 2001)

TRISHA T. PRITIKIN, PLAINTIFF-APPELLANT, v. DEPARTMENT OF ENERGY, JOHN D. WAGONER, IN HIS OFFICIAL CAPACITY AS MANAGER OF DOE RICHLAND OPERATIONS, AND SPENCER ABRAHAM,¹ IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE US DOE, DEFENDANTS-APPELLEES.

No. 99-35581

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 15, 2001--Seattle, Washington

Filed June 13, 2001

Tom H. Foulds, Tom H. Foulds & Associated Counsel, Seattle, Washington, for the plaintiff-appellant.

David C. Shilton (argued), Department of Justice, Washington, D.C., for the defendants-appellees.

Greer S. Goldman (on brief), Department of Justice Environment and Natural Resources Division, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding D.C. No. CV-98-3049-EFS

Before: Stephen Reinhardt, Kim McLane Wardlaw, and Ronald M. Gould, Circuit Judges.

The opinion of the court was delivered by: Wardlaw, Circuit Judge

Opinion by Judge Wardlaw

OPINION

Trisha T. Pritikin appeals the district court's entry of summary judgment in favor of the Department of Energy ("DOE"). Pritikin sued DOE to compel it to budget for the medical monitoring program that the Agency for Toxic Substances and Disease Registry ("ATSDR") was required to institute at the Hanford Nuclear Reservation ("Hanford"). The district court concluded that it lacked subject matter jurisdiction on two grounds: (1) Pritikin failed to meet the requirements for instituting a citizen's suit under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9659(a)(1) and (2) ("CERCLA"); and (2) there was no final agency action to challenge under the Administrative Procedure Act, 5 U.S.C. §§ 701, et seq. ("APA"). We agree that we lack jurisdiction to entertain this action, but rely on a third ground: Pritikin lacks constitutional standing to compel DOE to make budget requests and to reprogram existing funds for the medical monitoring program because she cannot show that its failure to do so is the cause of the injury she seeks to redress or that requiring DOE to do so will result in ATSDR's implementation of the medical monitoring program. We have jurisdiction pursuant to 28 U.S.C.§§ 1291, and we affirm.

I. Factual Background

The Hanford Nuclear Reservation in Richland, Washington, is owned by DOE and was established in 1943 as part of the Manhattan Project to produce plutonium for nuclear weapons. For three decades, radioactive, toxic and hazardous substances were released from Hanford as by-products of the plutonium production process. From 1944 to 1957, it is estimated that 700,000 to over 1.1 million curies of radioactive iodine-131 were emitted into the air through exhaust stacks, and more that 22 million curies of radioactive material were released into the Columbia River during the cooling process. These releases exposed thousands of persons living and working downwind and downstream from the site to radioactive iodine. The most damaging exposure to radioactive iodine131 occurred through the consumption of contaminated milk, produced by cows grazing in contaminated fields. Human exposure to radioactive iodine-131 often results in thyroid disease, as the toxic chemical is usually stored in the thyroid gland.

In 1989, the Environmental Protection Agency ("EPA") placed the Hanford site on its National Priorities List ("NPL"), which ranks the most serious hazardous waste sites in the United States, and since that time, Hanford has been the subject of an environmental cleanup. To expedite the cleanup, ATSDR and DOE entered into a Memorandum of Understanding ("MOU") and a series of Interagency Agreements ("IAGs") to delineate the responsibilities of the respective agencies as well as to provide funding for the ATSDR's statutorily required health assessment activities at the Hanford site for fiscal years ("FY") 1991-1996. In 1994, as part of a negotiation during the pendency of the appeal of Hanford Downwinders Coalition Inc. v. Dowdle, 841 F. Supp. 1050, aff'd, 71 F.3d 1469 (9th Cir. 1995),² ATSDR initiated a formal review of the health effects of hazardous substances at Hanford. In 1997, ATSDR concluded that there was "a significant increased risk of adverse health effects in humans from exposure to hazardous substances" due to toxic waste exposure. Once this "significant risk" determination was made, 42 U.S.C. §§ 9604(i)(9) required ATSDR to implement a medical monitoring program to screen the population for those diseases for which the risk had been significantly increased and to refer affected individuals to treatment. 42 U.S.C. §§ 9604(i)(9).

In February of that same year, DOE transferred the Hanford funding responsibility from its headquarters to a field office in Richland.³ Following the transfer, in a letter dated October 10, 1997, John Wagoner, manager of the DOE-Richland Operations Office, informed ATSDR that DOE could not"accept the funding burden specified in [the August 11, 1997] draft IAG."⁴ Explaining that the regional office could not accept "unfunded mandates" from DOE Headquarters and its belief that it is "unacceptable for DOE to fund nonEnvironmental Management activities with Environmental Management funds," Wagoner specifically requested that ATSDR help DOE "engage the Administration on the issue of funding." As an interim measure, Wagoner requested that ATSDR identify the minimum funding levels it needed to begin work in FY 1998. ATSDR and DOE-Richland never reached an agreement, and as a result, no IAGs were established after FY 1996. In early March, Pritikin served her Notice of Intent to Sue, dated January 13, 1998. Approximately one week later, on March 19, 1998, DOE announced its intent to transfer $5 million from another appropriation toward funding the medical monitoring program. DOE did not include funding for ATSDR's medical monitoring program in its budget proposal for FY 1999, and ATSDR has yet to begin the statutorily required medical monitoring program.

Trisha T. Pritikin was born in Richland, Washington, near the Hanford facility, in 1950, and she lived there for the first ten years of her life. As a result of in utero and childhood exposure, Pritikin's thyroid gland and endocrine system were severely damaged. Thus, she is qualified to participate in ATSDR's medical monitoring program. She initiated this suit to force ATSDR to implement the statutorily required program. Pritikin believes that if DOE were to first request and then provide the funding, ATSDR would begin the medical monitoring program, and her medical needs would then be addressed.

II. Statutory History

To understand why Pritikin does not have standing to bring this cause of action against DOE, it is necessary to understand the statutory framework of CERCLA⁵ -- and, in particular the responsibilities it imposes on the different agencies involved in the clean-up of a toxic waste site. CERCLA was enacted to " `protect and preserve public health and the environment' by facilitating the expeditious and efficient cleanup of hazardous waste sites." Dowdle, 71 F.3d at 1473-74 (quoting Wilshire Westwood Assoc. v. Atlantic Richfield Corp., 881 F.2d 801, 804 (9th Cir. 1989)). CERCLA establishes a procedure to facilitate hazardous waste site clean-ups and insures that whoever undertakes the clean-up can recover those costs from potentially responsible parties ("PRPs"). 42 U.S.C. §§§§ 9604, 9606, 9607, and 9620. Here, DOE qualifies as a PRP under §§ 9607(a)(4) because, as the owner of the Hanford site, it accepted hazardous substances for transport.

The 1986 Superfund Amendments and Reauthorization Act ("SARA") established ATSDR within the Department of Health and Human Services to assess and study the health effects of hazardous substances and to institute medical programs when needed. 42 U.S.C. §§§§ 9604(i). The PRPs are liable for, among other things, "the costs of any health assessment or health effects study carried out under section 9604(i)," and liability attaches even if the PRP was unaware of the toxic waste at the time in question. 42 U.S.C. §§ 9607(a)(4)(D). Thus, DOE is liable for the cost of any medical monitoring program that ATSDR "carried out " at Hanford. CERCLA also allows Superfund money to be used to finance the clean-up and provides a cause of action for its reimbursement from PRPs. 42 U.S.C. §§§§ 9607(a) and 9611(a). Section 9620 waives the federal government's sovereign immunity and makes those federal departments and agencies which qualify as PRPs subject to §§ 9607 liability. Section 9620 also requires the head of the each responsible federal department to (1) enter into an IAG with the EPA administrator to expedite the completion of all necessary remedial action; (2) submit a review of alternative agency funding for the remedial action in its annual budget to Congress; and (3) submit an annual progress report. 42 U.S.C. §§ 9620.

III. Prior Proceedings

Pritikin brought this action against DOE pursuant to the Citizen Suit provisions of CERCLA, 42 U.S.C. §§ 9659(a)(1) and (2), and the APA, 5 U.S.C. §§ 701, et seq. She seeks a declaration that DOE is liable for funding ATSDR's medical monitoring program and an injunction compelling DOE to (i) include in its budget requests the amounts necessary to fully fund the Hanford medical monitoring program and disease registry program for FY 1999 and beyond; (ii) reprogram budget items committed to it for other programs or by special appropriation in its FY 1998 budget to cover the full amounts planned by ATSDR for its Hanford program; and (iii) to comply with CERCLA reporting requirements and disclose to Congress its failures to fund ATSDR's mandatory programs and to reach IAGS with ATSDR. DOE moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative, for summary judgment for lack of subject...