Petition for Writ of Certiorari — Pritikin v. Department of Energy

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Supreme Count, U.&

FILED

(") 01 892 DEC os 2poF

No. QEFICE OF THE CLERK

In the

Supreme Court of the Hnited States

TRISHA T. PRITIKIN,

Petitioner,

DEPARTMENT OF ENERGY, JOHN D. WAGONER, in his official

capacity as manager of DOE Richland Operations, and SPENCER

ABRAHAM, ' in his official capacity as Secretary of the US DOE,

Respondents.

On Petirion For A Writ oF CERTIORARI TO THE

UNITED States Court OF APPEALS FOR THE NINTH CincuIT

PETITION FOR WRIT OF CERTIORARI

Tom H. Foutps

Counsel of Record

703 Sixth Avenue North

Seattle, WA 98109

(206) 285-8390

Attorney for Petitioner

Ware

QUESTIONS PRESENTED:

An Article III jurisdictional question with national

implications is presented in the unique situation of one

federal agency, admittedly the responsible party under

CERCLA for creating the health hazards, refusing tc fund the

activities of another federal agency responsible for the health

remedial program. The Agency for Toxic Substances and

Disease Registry(ATSDR) provides remediation of health

risks from environmental contamination. Under CERCLA,

the Department of Energy (DOE) is liable for ATSDR health

activities carried out at DOE sites. From DOE yearly budget

authorizations the DOE had historically provided the ATSDR

a funding commitment for such activities. But when the

ATSDR developed a mandatory program of medical

monitoring for the Hanford population deemed at significant

risk, the DOE refused to provide any funding and fails to

include such funding in its budget requests.

Pritikin sued the DOE, but not the ATSDR, to force

the DOE to provide the necessary funding commitment.

Based upon the assumption that funding might be available to

ATSDR from alternative sources, the Ninth Circuit held there

was no Article III jurisdiction for lack of causal traceability.

It also found lack of redressability since possibly the

ATSDR might not institute its program even with funding.

This Ninth Circuit opinion ignored the principles for

determining traceability and redressability adopted by the

U.S. Supreme Court and those of other panels of the Ninth

Circuit.

Can traceability be based upon unsupported

assumptions that alternative funding may have been available

to the ATSDR to implement its program?

Would furnishing the program funding sought by the

ATSDR likely redress Petitioner’s need for its program

implementation?—

Can the DOE evade its liabilities under CERCLA by

demanding, under the guise of traceability, that the ATSDR

first exhaust all avenues of alternative funding?

TABLE OF CONTENTS

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D) THE NINTH CIRCUIT OPINION IGNORED AND

DISREGARDED THE PRINCIPLE ADOPTED ON

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E) CASES CITED BY NINTH CIRCUIT ARE INAPPOSITE |

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APPENDIX

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EXCERPTS FROM TRANSCRIPTS ...cccccccosccecvcescocevecccscoeees 103a

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TABLE OF AUTHORITIES

CASES

AREA TRANSPORTATION, INC. V. ETTINGER, 219 F.3D 671

“£5: .& Be RRC ener LEV SR RISE ae Reon Oe i 10

BENNETT V. SPEAR, 520 U.S. 154, 169 (1997)... eee 7

BENO V. SHALALA 30 F.3D 1057, 1065 (9TH Cir. 1994)....... 9

DUQUESNE LIGHT COMPANY V. EPA, 166 F.3D 609 (3RD Cir.

ERRNO Sr Siok Wp toe Pat malo COM EA REN He A POR oe OA )

GRAHAM V. FEDERAL EMERGENCY MANAGEMENT AGENCY,

RE ee Te rg: He Ue is BE Renpresenteteticnensniccetinnenes 8

HANFORD DOWNWINDERS COALITION, INC. V. DOWDLE, 71

Bn BE CE CR, FIC, Bi cccxccencestnesconnncnsendeconsocnncns 2

IDAHO CONSERVATION LEAGUE, 956 F.2D AT 1518. (9TH CIR.

EERE FE IRs eee A or ero EN ADP OPE ERE 9

SIMON V. EASTERN KENTUCKY WELFARE RIGHTS

COATT ATI, GIG UE. Bia iceconccnnictentcocascrisossesntemsensecenive 8

SEATTLE AUDUBON SOCIETY V. Espy, 998 F.2D 699, 702

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TYLER V. CUOMO 236 F.3D 1124, 1133 (9TH Cir. 2000)....... )

STATUTES

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42 U.S.C. 9620, 9604(1)(9), 9604(1)(1 1), 9604(1)(17)............ 4

42 U.S.C. SECTIONS 9620, 9604(1), 9607 .............ccccccsceeseseeees l

I ee sersciscicbsicrcaonis shales ah a Nea 2

REGULATIONS

FEDERAL REGISTER / VOL. 66, NO. 112 ....................0000000000 10

]

Petitioner respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals ©

for the Ninth Circuit in this case.

I: OPINIONS BELOW

The order of the district court (per Shea, D.J.)

granting summary judgment against petitioner in Trisha T.

Pritikin v. United States Department of Energy, et. al., filed

March 31, 1999 is reported at 47 F. Supp. 2d 1225 (1999),

U.S. Dist. Lexis 12622, and is set forth in the Appendix

(App. 19a.)

The opinion of the Ninth Court of Appeals (per

Wardell, K.M.), filed June 13, 2001, affirming the district

court is reported at 254 F.3d 791 (200i), U.S. App. Lexis

12868, and is set forth in the Appendix (App. la). The Ninth

Circuit order denying a petition for rehearing and rejecting

the suggestion for rehearing en banc was filed September 6,

2001, and is set forth in the Appendix (App. 33a-1).

il: STATEMENT OF JURISDICTION

This petition for writ of certiorari is being filed less

than 90 days following the denial on September 6, 2001 by

the Ninth Circuit of the petition for rehearing, and petitioners

invoke this Court’s jurisdiction under 28 U.S.C. § 1254(1).

Ili: STATUTORY PROVISIONS INVOLVED

In addition to Article III of the U.S. Constitution, the

statutory CERCLA provisions of 42 U.S.C. sections 9620,

9604(i), 9607 and 9659 relevant to this petition are reprinted

in the Appendix (App. 34a).

IV: STATEMENT OF THE CASE

a) Background

In 1993 a Citizen Suit was filed against the Agency

for Toxic Substances and Disease Registry (ATSDR) to

furnish a program of medical surveillance for the downwind

population exposed to harmful radioactive releases from the

historical operations of the Department of Energy (DOE)

Hanford plutonium production plants in Washington State

beginning December, 1944, and continuing to the mid-

seventies. Under CERCLA provisions 42 U.S.C. 9604(i), the

ATSDR was given the authority to make the health

assessments and provide a program of medical surveillance

upon a finding of an increased risk of adverse health effects.

This action was dismissed as premature, affirmed in Hanford

Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469 (9

Cir. Dec. 1995). However, in negotiations during the

pendency of the appeal, the ATSDR agreed to take the steps

necessary to determine if the findings needed to establish the

program were applicable. In 1996, the ATSDR made its

finding of an increased risk of adverse health effects from the

radioactive releases, which triggered the ATSDR’s statutory

duty under 42 U.S.C. 9604(i)(9) to provide a program of

medical surveillance to the exposed population at risk. To

implement this duty the ATSDR presented to the DOE a

comprehensive program of medical surveillance for an

estimated 14,000 persons with eligible exposures, and

requested the DOE to provide the commitment to fund the

estimated costs, which the DOE refused. The present Citizen

Suit was commenced in April, 1998, by Pritikin against the

DOE to enforce its duty to provide ATSDR with the

necessary funding commitment for ATSDR’s proposed

medical monitoring program. A discovery conference under

FRCP 26(f) was rejected by the DOE which brought a

12(b)(1) motion alleging lack of subject matter jurisdiction

and requesting a summary judgment of dismissal. Although

there has been no discovery in the case, Pritikin was

informally furnished various materials by the ATSDR such as

copies of the various funding agreements reached between

the DOE and ATSDR for their activities in previous years

and DOE/ATSDR correspondence which were made part of

the record before the district court. DOE’s motion was

granted by the district court in April, 1999.

The issue of Article III standing was raised by the

DOE for the first time in the appeal to the Ninth Circuit. In

its opinion filed June 13, 2001, the Ninth Circuit found that

while the district court could not be affirmed on the issue of

subject matter jurisdiction, it could be affirmed on the basis

that Article III standing was lacking. The premise of the

opinion was that traceability was not clear since the ATSDR

hypotheiically had alternative funding available from the

Superfund or other sources and redressability could not be

assured without a judgment against the ATSDR since it

might change its mind even with DOE funding.

b) Statement of Facts

The undisputed factual record plaintiff furnished the

district court consisted of copies of Interagency Agreements

(IAG’s), Memorandums of Understanding (MOU’s) and

related correspondence, including:

A series of yearly LAG’s beginning in 1991 and

continuing through September, 1997, establishing a history of

DOE funding of ATSDR activities at the various DOE sites.

These IAG’s were executed under the authority of a 5-year

MOU effective to September 30, 1997, and renewed for

another year to September 30, 1998. The fiscal years for

appropriation run from October 1 to September 30" of the

following year, meaning this MOU was in effect during the

DOE budget planning period for F/Y 1998 and F/Y 1999.

This MOU states:

“DOE-EM and DOE-EH shall provide

appropriate support to the ATSDR for the

conduct of public health assessments, health

consultations, and health activities related to

public health recommendations at or near

DOE facilities and installations.””

Under this MOU and the yearly IAG’s continuing up

through September 30, 1997, the DOE had funded the health

assessment activities of the ATSDR at various DOE sites,

including Hanford. These I[AG’s would commit the DOE to

fund an agreed total for specified activities, and the DOE

would subsequently pay the costs billed by the ATSDR as the

activities were carried out.

The ATSDR submitted its final plan to the DOE in

January, 1997. This was to be the first medical monitoring

program of exposed population groups around any of the

DOE sites nationwide. This was followed by a series of

letters from the ATSDR to the DOE submitting its

monitoring program funding budget covering F/Y 1998

through F/Y 2002, and showing a growing concern over the

DOE’s delayed response to the IAG proposed by ATSDR for

a F/Y 1998 funding commitment. By letter of October, 1997,

after the F/Y 1998 budgeting and appropriation process had

closed, the DOE manger of Hanford operations wrote that the

DOE would not be able to accept the proposed IAG for F/Y

1998 since it was unfunded, not surprisingly, since DOE had

failed to make any budget requests for it to Congress.

Shortly after Pritikin gave notice in January 1998 of

intent to sue, the DOE made a belated request to the House

Committee on Appropriations to reprogram $5,000,000 from

an existing F/Y 1998 appropriation for another DOE program

to be transferred to the Hanford medical monitoring program.

This was without fruition. In their June 1998 Report, the

' It is stated in this MOU that it was made under the authority of

CERCLA sections, among others, 42 U.S.C. 9620, 9604(i)(9),

9604(i)( 11), 9604(i)( 17) and 9607, the very same sections Pritikin relied

upon to establish subject matter jurisdiction under the Citizen Suit

provisions of 9659.

House Committee on Appropriations requested that

beginning in F/Y 1999 the DOE must specifically identify in

its budget requests a line item for any funding for Hanford

medical monitoring.

The DOE claims a lack of Congressional

appropriation as its excuse for not funding the ATSDR

medical monitoring program at Hanford. Yet the DOE has

deliberately omitted any such funding in its annual budget

requests to Congress, admitting there was no such funding

request in its F/Y 1998 budget and acknowledged in oral

argument that neither were any such budget requests made

for F/Y 1999 or F/Y 2000, nor have they made any for F/Y

2001 or F/Y 2002. However, the DOE has continued to

budget for and fund other types of ATSDR activities at DOE

sites, but not monitoring.

c. Erroneous Assumptions

A related corollary to the Question Presented is

whether the determination of causal traceability can be made

on the basis of mere assumptions without a factual basis. The

assumption and suggestion in the Ninth Circuit Opinion that

the ATSDR could expend Superfund monies for its program

and then seek reimbursement from the DOE would be

impossible for the ATSDR to enforce against the DOE since

under our federal system, one federal agency cannot proceed

in litigation against another federal agency. Only an action

such as Pritikin’s can obiain judicial enforcement. It would

also be impossible because the Opinion’s assumption that

Superfund monies were available to the ATSDR is

unsupported by the actual facts. The EPA has taken the

position that as to DOE sites no Superfund money is

available. In September 1998, after the DOE had declined

funding, the ATSDR met with the EPA to obtain Superfund

monies for their Hanford medical surveillance program, and

were rejected. See letter of July 2, 1999 from EPA to ATSDR

(App. 100a) confirming this position.” This position is

consistent with the yearly billion dollar property cleanup

program at Hanford which is funded entirely by the DOE, not

the Superfund.

Also erroneous is the Opinion’s assumption that

somehow the ATSDR can seek funding directly from

Congress. The ATSDR can now seek funding for its non-

federal facility activities directly from its relevant

Congressional appropriation subcommittee. However, all

funding requests for work related to federal facilities are only

part of the budget requests by the federal facility involved

such as the DOE in this case, not the ATSDR. See

reporters’s transcript of comments by Henry Falk, Deputy

ATSDR Administrator (App. 103a). It would not be logical

otherwise for the ATSDR to obtain an appropriation from

one subcommittee, and for the DOE, which must pay or

reimburse the costs for such activities as part of its budget, to

”A Superfund expenditure was first raised by the DOE before the district

court as being necessary in the context of alleged lack of subject matter

jurisdiction, to which Petitioner cited the various cases holding that a

Superfund expenditure is not a predicate to liability under §9607. The

factual status of what alternative funding would actually even be

available, not appearing as an issue until the appeal stage, had not been

developed by the time of the Ninth Circuit decision, made on an

insufficient record. This EPA letter (App100a) rejecting Superfund use at

DOE sites was previously unavailable to Petitioner before its Opinion.

Likewise previously unavailable was the recently transcribed record of

comments by the ATSDR assistant administrator Dr.Falk (App. 103a).

obtain another appropriation from its subcommittee for the

same costs.

The consecutive years of DOE funding of ATSDR’s

activities at Hanford and other DOE sites was not broken

until the November 1997 DOE rejection of the proposed

1998 IAG for Hanford medical monitoring. With the

ATSDR’s lack of any alternative Superfund source of

funding; and the lack of ATSDR authority to seek

Congressional funding for its federal facility activities, the

DOE denial of funding was clearly the cause in fact of the

ATSDR’ inability to launch its program. The DOE’s

continued refusal to request a funding appropriation for the

program is also why no funds have since been appropriated

for the program.

d) The Ninth Circuit Opinion Ignored and Disregarded

the Principle Adopted on Standing by this Supreme

Court

The Ninth Circuit took no cognizance of Bennett v.

Spear, 520 U.S. 154, 169 (1997) although cited by Pritikin.

In Bennett, plaintiffs sought review of a biological opinion

issued by the defendant Fish and Wildlife Service, which

outlined measures for the operation of a project conducted by

the Bureau of Reclamation, a non-party. Article III standing

was challenged on the grounds that the injury was neither

fairly traceable to the biological opinion, nor redressable

because the action agency, the third party Bureau, retained

ultimate responsibility for determining how to proceed. A

unanimous Supreme Court held that Article III redressability

existed since the actions of the challenged party would have a

“coercive or determinative effect” upon the third party

agency. Pritikin suggests that there is probably no DOE

action that could be more coercive or determinative upon the

actions of the ATSDR than the withholding of its source of

funding for it activities at a DOE site.

e) Cases cited by Ninth Circuit are Inapposite and its

Opinion is Contrary to other Ninth Circuit Cases

In the primary case relied upon in the Opinion, Simon

v. Eastern Kentucky Welfare Rights Organization, 426 U.S.

26, the respondents had challenged an IRS ruling they

believed was encouraging the denial of indigent hospital

services by hospitals not parties to the action. This Court

held that since the hospitals were free to utilize or dispense

with the tax benefits of providing indigent care, as they may

choose, that the alleged injuries from the denial of services

was not fairly traceable to the IRS ruling and that the

redressability of invalidating the challenged IRS ruling was

speculative.

In this case, contrary to the hospitals in Simon, the

ATSDR has an affirmative statutory duty to furnish a medical

surveillance program for the exposed downwind population.

The ATSDR has accepted this duty, and had formulated a

comprehensive program of medical surveillance to

implement this duty. The ATSDR had developed and

submitted the requisite requests and I[AG’s for the DOE to

provide the necessary funding. When denied by the DOE,

the ATSDR sought alternative Superfund funding from the

EPA. The ATSDR had both the acknowledged duty and the

demonstrated intent to provide the medical surveillance

services desired by Pritikin, which have been frustrated only

by the DOE’s refusal of funding requested by the ATSDR.

The Opinion requires a failsafe standard of

redressability and proposes a scenario in which, even if DOE

committed the funding, the ATSDR might refuse to comply

with its statutory mandate to provide a medical surveillance

program. This is contrary to a nearly identical Ninth Circuit

case in which the same scenario was posited. In Graham v.

Federal i Emergency Management Agency, 149 F.3d 997,

1003 (9" Cir. 1997) the Graham district court had held that

there was no Article III redressability because a third party

not before the court, the Federated States of Micronesia

(FSM), which was charged with implementing the

distribution of funds to be received from FEMA, might not

reinstate its program and pass the funds along to the

plaintiffs. The Ninth Circuit on appeal distinguished those

cases where the party not before the court was the funding

agency and had an “unfettered” discretion. Whereas in

Graham, the funding agency, FEMA, was before the court

and FSM was obligated under the regulations and its

agreement with FEMA to make the disbursements to the

applicants FSM had approved.

“The defendants’ speculation that FSM might

conspire to evade the mandatory language of

the regulations and its agreement does not

defeat plaintiffs’ standing”, Graham at 1003.

_In Pritikin the funding agency, the DOE, is also

before the court. Also, the third party action agency, the

ATSDR, has an affirmative statutory duty to provide the

relief sought. It is equally a “speculation” in Pritikin, as it

was in Graham, that once funding became available from the

DOE that the ATSDR might evade its acknowledged

statutory mandate to provide medical monitoring.

| The failsafe standard set in this case by the Ninth

Circuit is also more than required by other Ninth Circuit

decisions. Beno v. Shalala 30 F.3d 1057, 1065 (9" Cir.

1994) “...a federal plaintiff must show only that a favorable

decision is likely to redress his injury, not that a favorable

decision will inevitably redress his injury...” (italics in

original). Nor does the fact that the redrafting of an EIS

might not change the Secretary’s decision defeat standing.

See Seattle Audubon Society v. Espy, 998 F.2d 699, 702 (9th

Cir. 1993) and Idaho Conservation League, 956 F.2d at 1518.

(9th Cir. 1992). See also Tyler v. Cuomo 236 F.3d 1124,

1133 (9" Cir. 2000).

In Duquesne Light Company v. EPA, 166 F.3d 609

(3™ Cir. 1999) cited in the Opinion, the Pennsylvania

Department of Environmental Protection, the non-party

action agency, was not under any legal duty to change the

definition being challenged. Similarly, in the other case cited

in the Opinion on this issue, Area Transportation, Inc. v.

Ettinger, 219 F.3d 671 (7" Cir. 2000), it was only conjecture

that the additional relief requested would influence the third

party, who was under no legal duty to act in the manner

desired by plaintiff.

f) National Importance

An additional factor that merits a writ of certiorari is

the national importance of the DOE’s responsibility to

provide funding to the ATSDR, the agency mandated under

CERCLA to make the necessary health assessments and

remedial health effects activities at such locations where the

environment has been effected. The DOE has developed a

list of facilities operated by the AEC/DOE atomic weapons

contractors in which radiation exposures may have occurred

sufficient to have caused potentially compensable injuries to

workers. (See Federal Register / Vol. 66, No. 112 / Monday,

June 11, 2001 / Notices, pg. 31218-31224, ( App. 11 1a).

Excluding the Beryllium vendors, there are 296 such

facilities spread among 40 states throughout the country in

which there was enough exposure from radioactive materials

to warrant the possibility of adverse health effects to those

workers exposed. In many cases the release or escape of any

such materials so as to cause a worker exposure will

necessarily implicate the offsite environment, such as at the

‘DOE sites at Hanford, Rocky Flats, Oak Ridge, Los Alamos,

Savannah River, and Fernald, to name just a few.

By withholding ATSDR funding, the nation’s

preeminent radioactive polluter has been able to achieve a

coercive influence over ATSDR monitoring programs for the

U.S. populations exposed to releases from DOE sites. None

have yet been done. In contrast is the fact, set in the record

before the district court, that the DOE has sought and

obtained appropriations for programs of medical monitoring

of population groups in several foreign countries. It can be

noted in the remarks by Dr. Falk (App.103a) that the ATSDR

has been meeting with the DOE, without success, to

determine what kind of program for which the DOE may

seek funding. Congress never intended that the public health

agency should need go to the polluter like a supplicant for

approval as to the scope of the health remediation activity

and such coercive influence and veto power by the polluter

makes a travesty of CERCLA intent and purpose.

Conclusion

Since the ATSDR was without any other source of

funding, the lack of program implementation was directly

traceable to the continued DOE denial of funding. By

developing and promulgating a full scale medical

surveillance program, and its continued efforts to seek

funding, the ATSDR has demonstrated its recognition of its

statutory mandate, making it highly /ikely that it will

implement the program as soon as funding is available.

Accordingly, Pritikin has Article III standing. The DOE

should not be permitted to exercise coercive influence, either

by veto as previously occurred or by delay in the future, over

the remedial health activities at its various sites where

population exposures have occurred. A writ of certiorari

should be granted and the judgment of the Ninth Circuit

appeals court, and the district court, should be reversed.

There is subject matter jurisdiction and Article III

jurisdiction.

Respectfully Submitted,

Tom H. Foulds

Counsel of Record

703 Sixth Avenue North

Seattle, WA 98109

(206) 285-8390

Attorney for Petitioner

a aa

No. 99-35581

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

TRISHA T. PRITIKIN,

Plaintiff-Appellant, ©

DEPARTMENT OF ENERGY, JOHN D. WAGONER, in

his official capacity as manager of DOE Richland

Operations, and SPENCER ABRAHAM, ' in his official

capacity as Secretary of the US DOE, Defendants-Appellees.

February 15, 2001, Argued and Submitted, Seattle,

Washington

June 13, 2001, Filed

PRIOR HISTORY:

Appeal from the United States District Court for the Eastern

District of Washington. D.C. No. CV-98-3049-EFS. Edward

F. Shea, District Judge, Presiding.

DISPOSITION:

AFFIRMED.

COUNSEL:

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.

JUDGES:

Before: Stephen Reinhardt, Kim McLane Wardlaw, and

Ronald M. Gould, Circuit Judges. Opinion by Judge

Wardlaw.

OPINIONBY:

Kim McLane Wardlaw

OPINION:

WARDLAW, Circuit Judge:

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 Sub-

stances 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 pro-gram. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

I. Factual Background

The Hanford Nuclear Reservation in Richland, Washing-ton,

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

sub-stances 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 iodine-131 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

clean-up, ATSDR and DOE entered into a Memorandum of

Under-standing ("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),? 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 expo-sure 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, ° 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." * Explaining that the regional office could not

accept "unfunded mandates" from DOE Headquarters and its

belief that it is "unacceptable for DOE to fund non-

Environmental 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 [AGs 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 pro-

gram. Pritikin believes that if DOE were to first request and

- ore

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 CERCLA ° --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, 7] 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 pro-

grams 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(aX4)(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

961 1(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. § 965%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, “or summary judgment for lack of subject matter

jurisdiction.

Neither party raised the issue of standing i in the district court.

As a result, the district court granted DOE's motion for

summary judgment without addressing whether Pritikin had

constitutional standing to initiate her suit against DOE. It

rejected citizen suit ° jurisdiction on the ground that Pritikin

could not establish a § 9659(a)(1) "requirement" or a §

9659(a)(2) "duty" which DOE had either violated or failed to

perform. Alternatively, the district court determined that it

did not have subject matter jurisdiction under the APA

because there was neither "final agency action "nor a

"definitive statement of an agency's position" for which

judicial review is authorized under 5 U.S.C. § 704.’

IV. Standing

We review an order granting summary judgment de novo,

Auvil v. CBS "Sixty Minutes"," 67 F.3d 816, 819 (9th Cir.

1995), and we may affirm the district court on any ground

supported by the record, Franklin v. Terr, 201 F.3d 1098,

1100 n.2 (9th Cir. 2000). Although the issue of standing was

not raised in the district court, because it is one of

jurisdiction, we may consider it for the first time on appeal.

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31, 107 L.

Ed. 2d 603, 110 S. Ct. 596 (1990); Alameda Newspapers, Inc.

v. City of Oakland, 95 F.3d 1406, 1411 n.5 (9th Cir. 1996).

Standing is a judicially-created doctrine --"an essential and

unchanging part of the case-or-controversy requirement of

Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555,

560, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). "No principle

is more fundamental to the judiciary's proper role in our

system of government than the constitutional limitation of

federal-court jurisdiction to actual cases or controversies."

Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37,

48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976). Standing, unlike

other jurisdictional doctrines, "focuses on the party seeking

to get his complaint before a federal court and not on the

issues he wishes to have adjudicated. " Jd. at 38 (quoting

Flast v. Cohen, 392 U.S. 83, 99, 20 L. Ed. 2d 947, 88 S. Ct.

1942 (1968)). To demonstrate standing, a plaintiff must (1)

"have suffered an ‘injury in fact' --an invasion of a legally

protected interest which is (a) concrete and particularized and

(b) ‘actual or imminent, not ‘conjectural or hypothetical; " (2)

"there must be a causal connection between the injury and the

conduct complained of --the injury has to be ‘fairly ...

traceable to the challenged action of the defendant, and not ...

the result [of] the independent action of some third party not

before the court; and (3) "it must be ‘likely’ as opposed to

merely ‘speculative, 'that the injury will be 'redressed by a

favorable decision. '" Defenders of Wildlife, 504 U.S. at 560-

6] (citations omitted) (alterations in original).

DOE does not challenge the first prong of the standing

requirements and rightfully so --Pritikin's inability to receive

medical screening due to ATSDR's failure to implement the

Hanford medical monitoring program establishes a

cognizable injury. DOE argues, however, that because

Pritikin fails to show how including funding for ATSDR's

medical monitoring program in its budget request would

result in the program actually being carried out, she has

demonstrated neither causation nor redressability, and

therefore, she lacks standing. We agree that Pritikin has

failed to demonstrate the second and third prongs of the

constitutional standing requirements and that we therefore

lack jurisdiction over her claims.

A. Causation

To meet the causation requirement, Pritikin's injury --her

inability to receive medical screening --must be fairly

traceabie to DOE's failure to include funding for the Hanford

medical monitoring program in its budget requests. It cannot

be "the result of the independent action of some third party

not before the court. " Defenders of Wildlife, 504 U.S. at 560

(quoting Simon, 426 U.S. at 41-42) (alterations omitted). By

claiming that DOE's failure "to fulfill its obligation to fund

the Medical Monitoring Program and the Exposure

Subregistry Program" has deprived her of needed medical

surveillance, Pritikin's claim presupposes that a budget

request for funding would necessarily result in the funding

and that if the funding were provided the program would _

necessarily begin. Thus, even at first blush, Pritikin's standing

appears weak, as her theory omits a necessary step in the

causation chain --the independent decision of ATSDR, a

third party not before the court, to begin the medical

“monitoring program.

Pritikin argues that by failing to include the medical

monitoring program in its budget request, DOE did not" take

such steps as may be necessary to ... eliminate or

substantially mitigate the significant risk to human health."

42 U.S.C. § 9604(i)(11). ® According to Pritikin, this

provision imposes an affirmative duty on DOE to provide

ATSDR with the funding it needs to initiate the medical

monitoring program before any costs have been incurred.

Although this "duty "is without support in the text of

CERCLA, Pritikin argues that her inability to obtain medical

screening is "directly traceable" to DOE's failure to perform

it. We disagree.

In Simon, indigents and organizations of indigents claimed.

the Secretary of the Treasury and the Commissioner of the

Internal Revenue Service issued Revenue Ruling 69-545,

which extended tax benefits to nonprofit hospitals that

offered treatment to indigents on an emergency basis only, in

violation of the Internal Revenue Code of 1954 and the APA.

They argued that the ruling encouraged hospitals to deny

service to the individual indigents and members of the

indigent organizations. Simon, 426 U.S. at 33. The Supreme

Court disagreed, concluding that it was pure speculation as to

"whether the denials of service specified in the complaint

fairly can be traced to petitioners’ 'encouragement' or instead

result from decisions made by the hospitals without regard to

the tax implications." Jd. at 42-43. The Court found it

"equally speculative whether the desired exercise of the

court's remedial powers in this suit would result in the

availability to [the indigents] of such services." Jd. at 43.

Because there was no evidence suggesting that the issuance

of the ruling caused the hospitals to deny indigents treatment,

id. at 28, and because "unadorned speculation will not suffice

to invoke the federal judicial power[,]" the Court held that

respondents lacked standing, id. at 44.

The need to speculate as to the causal link between the

actions of the party being sued and the alleged injury arose

because, like Pritikin, the Simon plaintiffs sued the wrong

party: rather than suing the hospitals refusing indigents care,

they sued the people responsible for promulgating the

revenue ruling. Although the plaintiffs successfully alleged

an injury, the Court reasoned an "injury at the hands of a

hospital is insufficient by itself to establish a case or

10a

controversy in the context of this suit, for no hospital is a

defendant." /d. at 4]. Here, Pritikin has not sued a party with

the clear ability to act. Rather than suing the ATSDR, the

party with the statutory power and duty to act, Pritikin has

sued DOE, the party liable for "the costs of any health

assessment or health effects study carried out ...." 42 U.S.C. §

9607(a)(4)(D). Although she has sufficiently alleged that she

was injured by the failure to implement a medical monitoring

program at Hanford, "[an] injury at the hands of [ATSDR] i is

insufficient by itself to establish a case or controversy in the

context of this suit, for [ATSDR] i is [not] a defendant." See

Simon, 426 U.S. at 41.

Similarly, in Duquesne Light Co. v. United States

Environmental Protection Agency, 166 F.3d 609 (3d Cir.

1999), the independent actions of a third party, not before the

court, were at issue. The Third Circuit concluded that the

Duquesne Light Company lacked standing to judicially

challenge the EPA's approval of Pennsylvania's state

implementation of the Clean Air Act. The utility company

claimed that it lost emission reduction credits (ERCs) and

faced higher operation costs as a result of EPA's approval.

Duquesne, 166 F.3d at 612. The Third Circuit held that

Duquesne's injury was "manifestly the product of the

independent action of a third party --Pennsylvania's

Department of Environmental Protection[,]" which redefined

the state implementation plan "in such a way that Duquesne

may not receive ERCs for its dormant plant. " Jd. at 6/3.

This, in turn, reduced the number of ERCs Duquesne claimed

it would have received had the less stringent requirements of

federal law been applied. Because the Clean Air Act required

the EPA to approve any state plan that met the minimum

federal requirements, which Pennsylvania's plan did, the EPA

did not have the power to change its decision or to order

Pennsylvania to relax its clean air requirements. Id. Thus, the

Third Circuit concluded that the EPA's approval of the

Pennsylvania plan was not "fairly traceable "to Duquesne's

injury. Id.

lla

As in Duquesne, Pritikin's injury is "manifestly the product of

the independent action of a third party. "Id. Although DOE is

liable for "the costs of any health assessment or health effects

study carried out under section 9604(i) of this title," 42

U.S.C. § 9607(a)(4)(D), ATSDR is responsible for

imple. aenting the program once it "has determined that there

is a significant increased risk of adverse health effects in

humans from exposure to hazardous substances based on the

results of a health assessment conducted under paragraph (6)

we" 42 U.S.C. § 9604(i)(9). ATSDR is not required to wait

for DOE's funding before beginning the Hanford medical

monitoring program; it can seek an alternate source of

funding. Thus, any failure to implement the medical

monitoring program lies at the hands of ATSDR.

In a factually analogous decision, the Seventh Circuit held

that the Area Transport did not have standing to challenge the

Federal Transit Administration's (FTA) decision regarding

the sanctions imposed on Mass Transportation

Administration of Flint, Michigan (MTA) for simultaneously

receiving federal grants and providing exclusive school bus

service. Area Transp, Inc. v. Ettinger, 219 F.3d 671, 672-74

(7th Cir. 2000). Area Transport argued that the FTA's ruling

requiring MTA to cease providing illegal school bus services

if it wished to continue receiving federal grants was too

lenient, and requested that the court both declare MTA

ineligible to receive future grants and compel FTA to order

MTA to repay the grants illegally received. Area Transport,

219 F.3d at 672. Area Transport argued that it was injured by

continued competition with MTA, which had an unfair

advantage due to its illegal appropriation of funds. Because

there was no information in the record that once the FTA

issued its cease and desist order, MTA was still competing

with Area Transport, Area Transport could not show that

imposing less harsh sanctions would improve competition

between the two. /d. at 673. In response to Area Transport's

argument that MTA would be competing with impermissibly

fattened coffers, the Seventh Circuit observed "to the extent

12a

that such an outcome requires not only that MTA react to the

FTA's cease and desist order by forgoing future federal grants

in favor of continuing its school bus service, but also that

MTA do so successfully, this scenario is both highly

speculative and dependent on uncertain actions by MTA,

who is not before us." Id. Thus, the Seventh Circuit held that

there was no causal connection between the FTA's imposition

of less harsh sanctions and the competitive injury suffered by

Area Transport. * Id.

Pritikin faces similar causation problems. She cannot show

that DOE's failure to request funding prevented ATSDR from

implementing the medical monitoring program. ATSDR

could have sought alternative funding sources, like

Superfund, to begin the monitoring program. Thus, Pritikin's

argument that ATSDR could not institute its medical

monitoring program because it did not receive funding

specifically from DOE "is both highly speculative and

dependent on uncertain actions by [ATSDR], who is not

before us." See id.

B. Redressability

Many of the problems Pritikin encounters in establishing

causation also affect her ability to demonstrate that a decision

in her favor "will produce tangible, meaningful results in-the

real world" --or in other words --to establish that her claim is

redressable. Common Cause v. Dept. of Energy, 226 U.S.

App. D.C. 266, 702 F.2d 245, 254 (D.C. Cir. 1983). As

demonstrated above, this case is "one of third-party

causation" --Pritikin "seeks to change [DOE's] behavior only

as a means to alter the conduct of a third party, not before the

court, who is the direct source of [Pritikin's] injury." See

Common Cause, 702 F.2d at 251. Thus, we must determine

whether requiring DOE to include the Hanford medical

monitoring program in its budget request will result in

ATSDR's implementation of that program. We conclude that

it will not.

The redressability issues here are analogous to those

presented in Lujan v. Defenders of Wildlife, which set the

13a

standard for establishing constitutional standing when

challenging the actions --or inactions --of federal agencies. In

Defenders of Wildlife, the plaintiffs sought both a declaratory

judgment that the Secretary of the Interior's regulation, which

required federal agencies to consult with him about the effect

of their actions only if they would affect endangered species

in the United States or on the high seas, was too

geographically narrow, and an order requiring such

consultation for foreign actions. Defenders of Wildlife, 504

U.S. at 559. Because other federal agencies were not bound

by the Secretary's regulation, "the only injury in fact

respondents complain of required action ... by the individual

funding agencies." Jd. at 57]. Ordering the Secretary of the

Interior to act would not remedy the plaintiffs’ injury; thus

the Court concluded that they lacked standing. Jd. at 578.

Pritikin attempts to distinguish her case from Defenders of

Wildlife on three grounds. First, Pritikin argues that ATSDR,

unlike the non-party agencies involved in Defenders of

Wildlife, became statutorily bound to act once it found a

"significant increased risk of adverse health effects." Thus,

according to Pritikin, ATSDR would be required to

implement the medical monitoring program if the DOE

requested and provided funding. In advancing this argument,

Pritikin fails to consider one important fact: ATSDR is not

bound by DOE's actions or decisions. ATSDR could choose

to ignore its statutory duty and decline to implement a

medical monitoring program even after DOE included

funding for the program in its budget. Because ATSDR is not

a party to this suit, we cannot prevent this from occurring,

nor could we sanction ATSDR for statutory non-compliance

if it chose not to implement the Hanford medical monitoring

program. We simply cannot compel a non-party in these

circumstances to act, even if it would be in conformance with

a statutory duty.

Next, Pritikin argues that Defenders of Wildlife is

distinguishable through comparison of the respective

economic impacts on the non-party agency of the party

l4a

agency's action or inaction. Because DOE is fully liable for

the costs of the medical monitoring program under CERCLA,

Pritikin contends that DOE's budget request and funding will

directly affect whether the medical monitoring program is

initiated. By comparison, in Defenders of Wildlife, the

Department of the Interior only supplied a fraction of the

funding for foreign projects and therefore could not affect

their outcomes by withholding funds. In advancing this

argument, however, Pritikin overlooks an important fact:.

ATSDR could, for example, pursue other sources of funding,

like Superfund, and later/seek reimbursement from DOE.

Such action would be fully consistent with the statute.

Although DOE's decision to include medical monitoring in ©

its budget could facilitate implementation of the program,

there is nothing in the record that indicates that its decision

not to include the pro in its budget request prevented

ATSDR from initiating the program at all. Of course, because

ATSDR is not a party to this action, there is nothing in the

record to indicate what effect, if any, DOE's failure to budget

for the program is having on its implementation.

Lastly, Pritikin submits that she is challenging a particular

government decision, whereas Defenders of Wildlife

involved a challenge to a generalized level of government

action. While this may be factually true, this argument misses

the mark. Whether the government's challenged action is

specific or general does not --without more --demonstrate

that the requested relief will redress the alleged injury.

As in Common Cause, Pritikin has failed to show how

ordering DOE to request funding would lead to the tangible

result of a Hanford medical monitoring program when only

ATSDR has the power to actually initiate the program. In

Common Cause, Appellants sought to force DOE to publish a

final energy conservation plan for federally owned and leased

buildings pursuant to 42 U.S.C. § 6361(a)(2). DOE had

published a Preliminary Plan, but the Final Plan was delayed

by problems with individual agencies. Common Cause, 702

F.2d at 248. Appellants sought publication of the final plan to

15a

reduce federal government energy consumption, which

would alleviate the energy shortage and lower energy prices.

Id. at 249. The D. C. Circuit concluded that Appellants

lacked standing because they “utterly failed to indicate ...

how a decree ordering publication of the Final Plan would be

likely to lead to tangible additions in federal energy

conservation above and beyond those currently being

achieved under the regime of the Preliminary Plan." Id. at

252 (italics omitted).

That DOE is bound to act pursuant to 42 U.S.C. §

9604(i)(11) does not meet the constitutional standing

requirements. Pritikin relies on Tennessee Valley Authority v.

Hill, 437 U.S. 153, 57 L. Ed. 2¢ 117, 98 S. Ct. 2279 (1978)

("TVA"), '° which held that the Endangered Species Act was

violated when an agency failed to "take such action

[]necessary to insure" its actions did not jeopardize an

endangered species pursuant to 16 U.S.C. § 1536, id. at 188,

to establish that DOE violated § 9604(i)(11) by not taking

"such steps as may be necessary to reduce such exposure and

eliminate or substantially mitigate the significant risk to

human health." Even if it were a necessary step for DOE to

include a line item request for medical monitoring in

Hanford, that responsibility alone does not provide the

missing causal link between DOE's budget request and

ATSDR's ability to implement the program Pritikin desires.

V. Conclusion Because Pritikin has not shown that her injury

was" fairly traceable" to DOE's actions or that the relief she

seeks will remedy that injury, we hold that Pritikin lacks

standing to bri 8 this suit, and we affirm the decision of the

District Court. '

AFFIRMED.

16a

nl Spencer Abraham is substituted for his predecessor,

Frederico Pena, as Secretary of the Department of Energy.

Fed. R. App. P. 43(c)(2).

n2 The Hanford Downwinders Coalition sought injunctive

relief requiring ATSDR to initiate a health surveillance

program (also known as a medical monitoring program) for

people exposed to the toxic substances emitted from Hanford.

On appeal, we concluded that although ATSDR had a

mandatory duty under 42 U.S.C. § 9604(i)(9) to implement a

medical monitoring program once it determined that "a

significant increased risk of adverse health effects" existed at

Hanford, we lacked jurisdiction to order such a program

because the requisite determination had not yet been made.

Dowdle, 71 F.3d at 1474-75.

n3 This transfer was announced in a memorandum from

Alvin L. Alm, DOE Assistant Secretary for Environmental

Management, on February 27, 1997. Because "funding this

compliance program from Headquarters [was] no longer

possible given the congressional budget decision with respect

to the Program Direction Account[,] "the program was

"moved from Headquarters to the field for funding and

execution.” Attached to the memorandum was a model IAG,

but it is unclear from the record whether that model LAG was

the same draft IAG submitted to the Richland field office by

ATSDR in August 1997.

n4 The 1997 draft [AG was proposed by ATSDR after

Richland had assumed responsibility for funding the Hanford

program. All previous [AGs were entered into between

ATSDR and DOE Headquarters.

n5 42 U.S.C. § § 9601-9675, as amended by the Superfund

Amendments and Reauthorization Act of 1986 (SARA, Pub.

L. No. 99-499, 100 Stat. 1613) (1986).

n6 42 U.S.C. § 9659 provides in relevant part:

17a

Authority to bring civil suits

any person may commence a civil action on his own behalf -

(1) against any person (including the United States and any

other governmental instrumentality or agency, to the extent

permitted by the eleventh amendment to the Constitution)

who is alleged to be in violation of any standard, regulation,

condition, requirement, or order which has become effective

pursuant to this chapter (including any provision of an

agreement under section 9620 of this title, relating to Federal

facilities); or

(2) against the President or any other officer of the United

States (including the Administrator of the Environmental

Protection Agency and the administrator of the ATSDR)

where there is alleged a failure of the President or of such

other officer to per-form any act or duty under this chapter,

including an act or duty under section 9620 of this title

(relating to Federal facilities), which is not discretionary with

the President or such other officer.

The district court shall have jurisdiction in actions brought

under subsection (a)(1) of this section to enforce the standard,

regulation, condition, requirement, or order concerned

(including any provision of an agreement under section 9620

of this title), to order such action as may be necessary to

correct the violation, and to impose any civil penalty

provided for the violation. The district court shall have

jurisdiction in actions brought under sub-section (a)(2) of this

section to order the President or other officer to perform the

act or duty concerned.

n7 5 U.S.C. § 704 provides:

Agency action made reviewable by statute and final agency

18a

action for which there is no other adequate remedy in a court

are subject to judicial review. A preliminary, procedural, or

intermediate agency action or ruling not directly reviewable

is subject to review on the review of the final agency action.

Except as otherwise expressly required by statute, agency

action otherwise final is final for the purposes of this section

whether or not there has been presented or determined an

application for a declaratory order, for any form of

reconsideration, or, unless the agency otherwise requires by

rule and provides that the action meanwhile is inoperative,

for an appeal to superior agency authority.

n8 42 U.S.C. 9604(i(11) requires the President to take "such

steps," but the President delegated this responsibility to the

executive department heads and graiited them the authority to

carry out the functions of Section 104. Executive Order

12580 section 2(k).

n9 The court assumed, without deciding, that Area Transport

successfully alleged a continuing injury. Area Transport,

219 F.3d at 673.

nl0 TVA did not involve a standing challenge. In that case, a

regional association of biological scientists, a Tennessee

conservation group, and individuals citizens and users of the

Little Tennessee Valley area sought an injunction prohibiting

"the operation of a virtually completed federal dam" because,

"pursuant to authority vested in him by Congress, the

Secretary of the Interior []determined that operation of the

dam would eradicate an endangered species." TVA, 437 U.S.

at 156, 161 n.10. The Court reached the merits of the case

and enjoined the completion of the dam.

nll We do not address a question not before this court:

whether Pritikin would have standing if ATSDR were named

as a party in this action.

19a

CASE NUMBER: CY-98-3049-EFS

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF WASHINGTON

TRISHA T. PRITIKIN, Plaintiff,

UNITED STATES DEPARTMENT OF ENERGY; JOHN D.

WAGONER, in his official capacity as Manager of the U.S.

Department of Energy Richland Operations; and FEDERICO

PENA, in his official capacity as Secretary of the U.S.

Department of Energy, Defendants.

March 31, 1999, Decided

March 31, 1999, Filed

COUNSEL:

For TRISHA T PRITIKIN, plaintiff: Tom H Foulds, Seattle,

WA.

For DEPARTMENT OF ENERGY, JOHN D WAGONER,

FREDERICO PENA, defendants: Pamela Jean DeRusha, U S

Attorney's Office, Spokane, WA.

For DEPARTMENT OF ENERGY, JOHN D WAGONER,

FREDERICO PENA, defendants: Yvette M Wilkerson-

Barron, US Department of Justice, Washington, DC.

For DEPARTMENT OF ENERGY, JOHN D WAGONER,

FREDERICO PENA, defendants: Robert H Foster, US Dept

of Justice, Environment & Natural Resources, Denver, CO.

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JUDGES:

EDWARD F. SHEA, United States District Judge.

OPINIONBY:

EDWARD F. SHEA

OPINION:

ORDER GRANTING DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT

Before the Court is Defendants’ Motion to Dismiss, or

Alternatively for Summary Judgment (Ct. Rec. 12). The

Court heard oral argument on October 7, 1998, in Spokane.

The Plaintiff was represented by Tom Foulds, and the

Defendants were represented by Pamela DeRusha of the U.S.

Attorney's Office, and Yvette Wilkerson-Barron and Robert

Foster of the U.S. Department of Justice, with Mr. Foster

arguing.

I. BACKGROUND

The Plaintiff, Trisha Pritikin, has filed a "Complaint for

Declaratory Relief and for Order Compelling the

Performance of Non Discretionary Duties" pursuant to the

Citizen Suit Provisions of 42 U.S.C. § 965% a)(1)8&(2) and

the Administrative Procedures Act, 5 U.S.C. § § 701-04. Ms.

Pritikin alleges that the Department of Energy ("DOE") has

failed to fulfill its obligation to fund the Medical Monitoring

Program and the Exposure Subregistry Program deemed

necessary by the Agency for Toxic Substances and Disease

Registry ("ATSDR") in 1997. (Ct. Rec. 1.)

As the basis for this Court's jurisdiction, Ms. Pritikin cites 42

U.S.C. § 965KHc), the citizen suit provision of CERCLA, and

28 U.S.C. § 1361, which provides an action in the nature of

mandamus to compel an officer or employee of the United

States or any agency thereof to perform a duty owed to the

claimant. Ms. Pritikin does not cite the Declaratory Judgment

Act, which empowers a court in a case of actual controversy

within its jurisdiction to declare the rights of interested

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parties seeking such a declaration. See 28 U.S.C. § 2201

(1996).

Instead, Ms. Pritikin seeks a declaratory judgment that DOE

is liable for the costs of the medical monitoring program

under 42 U.S.C. § 9613(g)(2) that will be binding on any

subsequent action to recover further response costs or

damages. She also seeks an order compelling the Defendants

to make budget requests for the medical monitoring program

and obtain the funding by "reprogramming budget items

committed by them to other programs,” and to require the

Defendants to disclose to Congress their failure to provide

such funding compliance. (Ct. Rec. 1.)

By way of background, DOE and ATSDR have been

involved in lawsuits related to radioactive emissions at

Hanford's Plutonium Production facilities. In 1994, ATSDR

decided to initiate various procedures necessary to establish

the criteria for a medical monitoring program. In 1997,

ATSDR determined that there was a need for a medical

monitoring program and disease registry at Hanford.

Ms. Pritikin asserts that she was exposed to Hanford

emissions as a resident of the area and suffered considerable

damage to her thyroid gland. As an individual allegedly

damaged by the emission, she believes that she has the right

to and a need for the ATSDR medical monitoring program.

Since ATSDR made its announcement that a medical

monitoring program was necessary, ATSDR and DOE have

engaged in exchanges of communications regarding the

possible funding of that program. There has been no

resolution of that funding issue. Ms. Pritikin now seeks to

employ the power of the federal court to order such actions as

will result in the funding of the ATSDR recommended

program.

The Defendants counter that the Plaintiff's complaint should

be dismissed for lack of subject matter jurisdiction because

42 U.S.C. § 9607(a)(4)(D) creates no private right of action

against DOE. Additionally, the Defendants allege that DOE

has taken appropriate steps to file the required reports and

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budget requests and therefore the remaining claims for

mandamus should be dismissed as moot. This Court has

jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1361].

After consideration of the materials submitted by the parties

and oral argument, this Court concludes that CERCLA does

not give Ms. Pritikin a right to sue to recover §

9607(a)(4)(D) costs nor a right to a declaratory judgment that

DOE is liable for future costs for the medical monitoring

program which ATSDR has concluded is necessary.'

Accordingly, the Court lacks subject matter jurisdiction and

grants the Defendants' Motion for Summary Judgment. ”

Il. SUMMARY JUDGMENT STANDARD

Summary judgment is properly granted when the "pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law." FED. R.

CIV. P. 56(c). When considering a motion for summary

judgment, a court may not weigh evidence or determine the

truth of a matter. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

Rather, the Court's function is strictly to determine whether

there is a genuine issue for trial. See id.

The moving party has the initial burden of demonstrating the

absence of a genuine issue of material fact. See Celotex Corp.

v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct.

2548 (1986). Once that initial burden has been met, the party

opposing summary judgment must set forth specific facts

showing that there is a genuine issue for trial or judgment

may be granted as a matter of law. See Anderson, 477 U.S. at

248. This requires that the party present evidence or identify

in the record evidence sufficient to establish the existence of

a material issue of fact. See Celotex, 477 U.S. at 322-23.

Failure to do so may result in the entry of summary judgment

if the party requesting summary judgment is otherwise

entitled to judgment as a matter of law. See Anderson v.

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Angelone, 86 F.3d 932, 934 (9th Cir. 1996).

III. DISCUSSION

This district is not unfamiliar with litigation concerning the

continuing efforts to clean up hazardous waste at the Hanford

Nuclear Reservation ("Hanford") in Richland, Washington. .

Two cases in this district have dealt with different but

somewhat related elaims to the one at issue. Those cases

provide helpful background material on the issue of a

citizen's cause of action to recover the costs of medical

monitoring programs under CERCLA.

In Durfey v. E.I. DuPont de Nemours Co., private citizens

sued private companies operating at Hanford. See 59 F.3d

121 (9th Cir. 1995). The Plaintiffs claimed a common law

right to sue those private companies for the cost of medical

monitoring for conditions allegedly caused by a release of

radioactive substances in Eastern Washington some years

earlier. See Durfey, 59 F.3d 121 at 123. On appeal from a

district court decision holding the common law medical

monitoring claims were barred by 42 U.S.C. § 96/3(h) as

challenges to ongoing federal agency "removal" or

"remedial" actions, the Ninth Circuit reversed finding that

medical monitoring costs were not "response costs" under

CERCLA.

This court, relying on the Tenth Circuit analysis in Daigle *,

reasoned that:

The context in which the "monitoring" and “health arid

welfare" language appears is directed at containing and

cleaning up hazardous substance releases . . . The specific

examples in § 9601(23) are all designed to prevent or

mitigate damage to public health by preventing contact

between the spreading contaminants and the public.

Monitoring long-term health has nothing to do with

preventing such contact. In addition, this court reviewed the

legislative history behind CERCLA and found that "Congress

intentionally deleted all personal rights to recovery of

eee a ea

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medical expenses from CERCLA," and that ATSDR

activities are reimbursed separately from the payment of

"response" costs.

Durfey, 59 F.3d at 125 (quoting Price v. United States Navy,

39 F.3d 1011, 1016-17 (9th Cir. 1994), and Daigle, 972 F.2d

1527 at 1536-37).

The court concluded that claims for costs of medical

monitoring programs initiated and conducted by citizens

independently of any CERCLA cleanup efforts were not

"costs of response" as that term is used in 42 U.S.C. §

9607(a)(4)(B). As such, those claims were not barred by

CERCLA § 113(h). Consequently, the court held that the

district court had jurisdiction to hear those citizen claims for

costs of medical monitoring programs initiated and

conducted independently of any CERCLA cleanup effort. °

Later that same year in Hanford Downwinders Coalition, Inc.

v. Dowdle, the Ninth Circuit again faced issues related to

‘CERCLA medical monitoring programs. See 7] F.3d 1469

(9th Cir. 1995). Dowdle contains a lengthy description of the

creation of ATSDR as part of CERCLA and provides an

excellent analysis of the CERCLA provisions that relate to

ATSDR. In that case, a citizens group brought an action

seeking injunctive relief requiring ATSDR to begin a health

surveillance program for populations exposed to radiation

from Hanford. See id. at 1471-73.-"The plaintiffs alleged that

the ATSDR has a mandatory duty under CERCLA §

9604(i)(9) to begin a health surveillance program in the

Hanford region. The requested injunction would order the

ATSDR to initiate § 9604(i)(9) health surveillance activity,

including medical testing and monitoring of individuals

exposed to releases of radioactive iodine.” /d. at 1473. The

district court dismissed the action citing 42 U.S.C. § 9613(h)

which provides in pertinent part:

No Federal court shall have jurisdiction under federal law

25a

other than under section 1332 of Title 28 . . . or under State

law which is applicable or relevant and appropriate under

section 9621 of this title (relating to clean up standards) to

review any challenges to removal or remedial actions

selected under section 9604.

42 U.S.C. § 9613(h) (1996); see Dowdle, 71 F.3d at 1474.

That provision "prevents Federal courts from exercising

jurisdiction over legal challenges to ongoing CERCLA

‘removal’ or 'remedial' activity." Dowdle, 71 F.3d at 1474

(emphasis added).

Plaintiffs in Dowdle argued that various provisions of

CERCLA related to the powers and responsibilities of

ATSDR enabled the court to order ATSDR to initiate a health

surveillance program. The court disagreed finding that

ATSDR's role in the cleanup was ongoing and stating, "until

ATSDR makes a § 9604(i)(7)(B)(9) determination, the

decision to begin a health surveillance program lies within its

discretion. CERCLA's Timing of Review provision [§

9613(h)] prevents federal courts from interfering with that

discretion.” Jd. at 1483. After a lengthy discussion, the court

opined, "we hold that the clear and extensive congressional

efforts to integrate ATSDR health assessment and

surveillance action into NPL cleanups support the conclusion

that the activities at issue in this case fall within the scope of

§ 9613(h)'s jurisdictional proscription." /d. at 1482.

The Dowdle decision is informative regarding the issues in

this case. In Dowdle, the court held that the plaintiffs’ action

was barred because ATSDR had not yet completed its study

to determine whether or not a health surveillance program

was necessary. Pursuant to 42 U.S.C. § 9604(i)(9)(A)&(B), a

program once initiated must include both periodic medical

testing to screen the exposed population for disease and a

mechanism to refer for treatment anyone who needs medical

attention:

Where the Administrator of ATSDR has determined that

26a

there is a significant increased risk of adverse health effects

in humans from exposure to hazardous substances based on

the results of a health assessment conducted under paragraph

(6), an epidemiologic study conducted under paragraph (7),

or an exposure registry that has been established under

paragraph (8), and the Administrator of ATSDR has

determined that such exposure is the result of a release from a

facility, the Administrator of ATSDR shall initiate a health

surveillance program for such population. This program shall

include but not be limited to--

(A) periodic medical testing where appropriate of population

subgroups to screen for diseases for which the population or

subgroup is at significant increased risk; and

(B) a mechanism to refer for treatment those individuals

within such population who are screened positive for such

diseases.

42 U.S.C. § 9604(i9)(A)&(B) (1996).

In 1997, ATSDR reached a determination under §

9604(i)(7)(B)(9) that a health surveillance program must be

initiated. (Ct. Rec. 15.) Ms. Pritikin's claim against DOE is

based on the decision of ATSDR that a health surveillance

program is necessary per 42 U.S.C. § 9604(i(9)A)(B). The

claims Ms. Pritikin advances here are different from the

claims of the Durfey plaintiffs. The court in Durfey held the

plaintiffs could bring claims for the costs of privately

initiated and conducted medical monitoring programs against

corporate defendants who were alleged "responsible parties"

as that term is used in CERCLA. By comparison, Ms. Pritikin

asks this Court to declare DOE liable for the costs of past

ATSDR assessments and to declare DOE liable for future

costs of the ATSDR medical monitoring program. Unlike the

Durfey plaintiffs, Ms. Pritikin has not advanced costs for a

private medical monitoring program but asserts a cause of

action to recover costs ATSDR has expended or may expend

in the future. Ms. Pritikin also asserts a cause of action

different from the Dowdle plaintiffs. The plaintiffs in Dowdle

27a

brought an injunctive action against ATSDR seeking to force

it to conduct the program which it has now concluded is

necessary, while Ms. Pritikin has brought suit against DOE

and its administrator, not ATSDR.

As a partial basis for her request, Ms. Pritikin relies upon 42

U.S.C. § 9659(a)(1)&(2) for the declaratory relief she seeks.

That section provides criteria for the citizen suit provisions of

CERCLA:

Except as provided in subsections (d) and (e) of this section

and in section 9613(h) of this title (relating-to timing of

judicial review), any person may commence a civil action on

his own behalf--

(1) against any person (including the United States and any

other governmental instrumentality or agency, to the extent

permitted by the eleventh amendment to the Constitution)

who is alleged to be in violation of any standard, regulation,

condition, requirement, or order which has become effective

pursuant to this chapter (including any provision of an

agreement under section 9620 of this title, relating to-Federal

facilities); or

(2) against the President or any other officer of the United

States (including the Administrator of the Environmental

Protection Agency and the Administrator of the ATSDR)

where there is alleged a failure of the President or of such

other officer to perform any act or duty under this chapter,

including an act or duty under section 9620 of this title

(relating to Federal facilities), which is not discretionary with

the President or such other officer.

The district court shall have jurisdiction in actions brought

under subsection (a)(1) of this section to enforce the standard,

regulation, condition, requirement, or order concerned

28a

(including any provision of an agreement under section 9620

of this title), to order such action as may be necessary to

correct the violation, and to impose any civil penalty

provided for the violation. The district court shall have

jurisdiction in actions brought under subsection (a)(2) of this

section to order the President or other officer to perform the

act or duty concerned.

42 U.S.C. § 9659 (1996).

Ms. Pritikin argues that the "duty" and "requirement"

enforceable under this provision arise from DOE's liability

for the costs incurred by ATSDR for medical monitoring

programs to be carried out as provided in § 9607(a)(4)(D). In

her complaint, Ms. Pritikin asserts that "the [DOE] has failed

to fulfill its obligation to fund the medical monitoring

Program and the Exposure Subregistry Program deemed

necessary by the [ATSDR]." (Ct. Rec. 1, P1.) Ms. Pritikin

further states,

Since the DOE owned the Hanford facility which emitted the

hazardous substances which created the significant increased

risk of adverse health effects, the DOE is liable under 42

U.S.C. § 9607(a)(2) and is specifically liable under §

9607(a)(4), subsection (D) for the costs of any health

assessment or health effects study carried out by the ATSDR

under section 9604(i). Thus the DOE is liable for the costs of

funding the ATSDR medical monitoring and disease registry

programs.

(Ct. Rec. 1, P25.) Ms. Pritikin contends that given this

alleged liability on the part of DOE, § 9607(a)(4)(D)

together with § 9613 (g)(2) allow her to seek a declaratory

judgment on DOE liability for future costs of such programs.

No cases cited by the Plaintiff support that position, ° nor has

the Court found any other authority in support of her

contentions.

Plaintiff believes that § 9607(a)(4)(D) creates the §

29a

9659(a)(1) "requirement" or a § 9659(a)(2) "duty". Section

9607 liability, provides:

Notwithstanding any other provision or rule of law, and

subject only to the defenses set forth in subsection (b) of this

section--

(4) any person who accepts or accepted any hazardous

substances for transport to disposal or treatment facilities,

incineration vessels or sites selected by such person, from

which there is a release, or a threatened release which causes

the incurrence of response costs, of a hazardous substance,

shall be liable for--

(D) the costs of any health assessment or health effects study

carried out under section 9604(i) of this title.

42 U.S.C. § 9607(a) (1996).

Ms. Pritikin asserts that since this provision makes DOE

liable as a "responsible party" for the medical monitoring

program which ATSDR has determined must be initiated,

there is, therefore, a "requirement" or "duty" which she can

enforce under § 9659 citizen suit provisions. This Court

disagrees. Section 9607(a)(4)(D) does not give Ms. Pritikin a

cause of action under § 9659 to establish the liability of DOE

for the cost of any health assessment or health effects study

carried out by ATSDR under § 9604(i). That subsection was

added to CERCLA at the time of the 1986 SARA

amendments and provides a government cause of action to

recover § 9604(i) ATSDR health assessment costs separate

from a cause of action for response costs. See Daigle, 972

F.2d at 1537. That view was shared by the court in Durfey

when it noted, "the government is able to recover costs

30a

incurred by the ATSDR under a separate cause of action." 59

F.3d at 125.’ As discussed earlier, by its very terms, §

9613(g) requires a suit to recover § 9607 costs. It is only in

such an action that the court would have the power to declare

future cost liability of the parties to that action. See §

9613(g)(2).

Therefore, it is this Court's ruling that § 9607(a)(4)(D)

cannot be read together with § 9659(a)(1)&(2) to permit Ms.

Pritikin to seek declaratory judgment on liability pursuant to

42 U.S.C. § 9613(g){2). § 9607(a)(4)(D) enables ATSDR to

bring such an action to recover the costs of health

surveillance programs, not private citizens. * With no cause

of action existing under § 9607(a)(4)(D) and no violation of

a CERCLA requirement, Ms. Pritikin's citizen suit under §

9659 cannot be brought. See 42 U.S.C. § 9613(h)(4). Thus,

this Court has no jurisdiction to enter a declaratory judgment

and afford Ms. Pritikin the relief she seeks.

A. THE IMPACT OF 42 U.S.C. § 9620

Ms. Pritikin asserts that under § 9620(e) DOE is "required"

to enter into interagency agreements ("IAG") to fund

ATSDR's public health activities at DOE sites. Plaintiff

specifically cites § 9620(e)(2). However, the term "The

Administrator" as used therein refers to the administrator of

the Environmental Protection Agency, not the administrator

of the ATSDR. See 42 U.S.C. § 9601(2) ("The term

‘Administrator’ means the Administrator of the United States

Environmental Protection Agency."). The documents

attached to the complaint and the various pleadings submitted

by the parties in connection with the Defendants’ motions

record the exchange between DOE and ATSDR regarding the

funding of ATSDR's public health activities. ATSDR and

DOE did enter into a "Memorandum of Understanding" in

1992, (Ct. Rec. 13, Ex. B) as well as a number of IAG's

thereafter (Ct. Rec. 17, Ex. F) which provided advanced

funding of ATSDR's public health activities.

Ms. Pritikin's position is that § 9620(e) "requires" DOE to

enter into [AG's with ATSDR. No authority is cited by

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plaintiff in support of her position. A careful reading of §

9620 persuades this Court that there are many complex issues

between governmental agencies such as ATSDR and DOE

regarding their respective responsibilities and duties as well

as the necessary budgeting to carry out those responsibilities,

many of which require congressional approval. This Court

does not believe that § 9620 provides Ms. Pritikin with a

basis for asserting a § 9659(a)(1) or (2) cause of action

against DOE. ~

B. THE ADMINISTRATIVE PROCEDURES ACT

As an alternative to the CERCLA statutory approach, Ms.

Pritikin believes that the DOE actions amount to final agency

action subject to the Administrative Procedures Act ("APA").

See 5 U.S.C. § 704. The APA authorizes judicial review of

agency actions which are reviewable by statutory language as

well as final agency action for which there is no other remedy

in court. See id. These elements must be present for the court

to have subject matter jurisdiction. See FTC v. Standard Oil ~

Co. of Calif., 449 U.S. 232, 248, 66 L. Ed. 2d 416, 101 S. Ct.

488 (1980). Courts must consider a number of factors in

determining whether an agency act is final for purposes of

review, including whether the action challenged is a

"definitive statement of an agency's position." See Mt. Adams

Veneer Co. v. United States, 896 F.2d 339, 343 (9th Cir.

1990).

The documents submitted by the Defendants persuade this

Court that DOE has not engaged in "final agency action" as

that term is utilized under the APA, nor has it given a

"definitive statement of an agency's position" which would

allow judicial review. (Ct. Rec. 13, Ex. A, B, & C.)

Additionally, documents submitted to this Court reflect that

DOE has filed the necessary § 9620 reports and has

officially informed Congress of this ATSDR funding issue

and sought reprogramming of funds for ATSDR activities.

Final action subjecting the decisions of DOE to judicial

review has not yet been taken and therefore there is no

subject matter jurisdiction under 5 U.S.C. § 704.

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Based on the foregoing analysis, the Court grants the

Defendants' Motion for Summary Judgment. Accordingly,

IT IS HEREBY ORDERED:

1. Defendants' Motion for Summary Judgment (Ct. Rec. 12)

is GRANTED.

2. All other pending motions are DENIED as moot.

3. Plaintiff's Complaint is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED. The District Court Executive is

directed to enter this order, prepare a Judgment accordingly,

provide copies to counsel, and close this file.

DATED this 31st day of March, 1999.

EDWARD F. SHEA

United States District Judge

JUDGMENT IN A CIVIL CASE

Decision by Court. This action came to trial or hearing before

the Court. The issues have been tried or heard and a decision

has been rendered.

IT IS ORDERED AND ADJUDGED

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

IS GRANTED; PLAINTIFF'S COMPLAINT IS

DISMISSED WITH PREJUDICE.

March 31, 1999

Date

n! Plaintiff has not named ATSDR as a defendant even

though 42 U.S.C. § 9604(i) mandates that the Administrator

of ATSDR shall initiate a health surveillance program for a

population exposed to a release from a facility when ATSDR

has determined that there is a significant increased risk of

adverse health affects in humans from exposure to hazardous

substances based on ATSDR health assessments and studies.

ATSDR made such a determination in 1997. Cf Hanford

Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469 (9th

33a

Cir. 1995).

n2 In its ruling, the Court considered materials outside of the

pleadings in deciding Defendants’ Motions. As such,

summary judgment standard must be applied. See Anderson

v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).

n3 See In re Hanford Nuc!ear Reservation Litigation, 780 F.

Supp. 1551 (E.D. Wash. 1991).

n4 Daigle v. Shell Oil Co. was a toxic tort case arising from

the cleanup at Rocky Mountain arsenal, a CERCLA site in

Colorado. See 972 F.2d 1527 (10th Cir. 1992). In part, the

plaintiffs brought CERCLA medical monitoring claims

pursuant to 42 U.S.C. § 9607(a)(4)(B). That subsection of

CERCLA makes a person who operates the site from which a

release of hazardous substances has occurred liable for any

other necessary costs of response incurred by any other

person consistent with the national contingency plan. The

court in Daigle held that the medical monitoring which the

plaintiffs sought was not recoverable under CERCLA §

107(a). See id. at 1537. It did find, however, "Section 107(a),

the liability provision with which we started our analysis

above, provides a government cause of action to recover §

104(i) ATSDR health assessment costs separately from the

cause of action for response costs." /d. (emphasis added).

n5 Durfey was then remanded to the district court where it is

pending.

n6 Pinole Point Properties, Inc. v. Bethlehem Steel Corp.,

596 F. Supp. 283 (N.D. Cal. 1984), and cases cited therein do

not hold that a private citizen can bring an action to recover

costs expended by the government. -

n7 Congress deleted all personal rights to recovery of

medical expense from CERCLA. See Durfey, 59 F.3d at 125,

and Dowdle, 71 F.3d at 1479.

n8 Since ATSDR is not a defendant, the Court offers no

opinion on the correctness of the government's interpretation

of Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 84 L.

Ed. 2d 714 (1985). (Ct. Rec. 13.)

33a-1

No. 99-3558 1

District Court No. CY-98-3049-EFS

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

TRISHA T. PRITIKIN,

Plaintiff-Appellant,

Vv.

DEPARTMENT OF ENERGY, JOHN D. WAGONER, in

his official capacity as manager of DOE Richland

Operations, and SPENCER ABRAHAM, ' in his official

capacity as Secretary of the US DOE,

Defendants-Appellees.

Filed September 6, 2001

“——=—— ORDER

Before: REINHARDT, WARDLAW, and GOULD Circuit

Judges.

The panel has voted to deny appellant’s petition for

rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for

en banc and no active judge has requested a vote on whether

to rehear the matter en banc.

Fed. R. App. P. 35. )

The petition for rehearing is denied and the

suggestion for rehearing en banc is rejected.

Footnote

' Spencer Abraham is substituted for his predecessor,

Frederico Pena, as Secretary of the Department of Energy.

Fed. R. App. P. 43(c)(2).

34a

United States Code

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL

RESPONSE, COMPENSATION, AND LIABILITY

SUBCHAPTER I - HAZARDOUS SUBSTANCES

RELEASES, LIABILITY, COMPENSATION

Section 9620. Federal facilities

(a) Application of chapter to Federal Government

(1) In general

Each department, agency, and instrumentality of the

United States (including the executive, legislative, and

judicial branches of government) shall be subject to, and

comply with,this chapter in the same manner and to the same

extent, both procedurally and substantively, as any

nongovernmental entity,including liability under section 9607

of this title. Nothing in this section shall be construed to

affect the liability of any person or entity under sections 9606

and 9607 of this title.

(2) Application of requirements to Federal facilities

All guidelines, rules, regulations, and criteria which are

applicable to preliminary assessments carried out under this

chapter for facilities at which hazardous substances are

located, applicable to evaluations of such facilities under the

National Contingency Plan, applicable to inclusion on the

National Priorities List, or applicable to remedial actions at

such facilities shall also be applicable to facilities which are

owned or operated by a department, agency, or

instrumentality of the United States in the same manner and

to the extent as such guidelines, rules, regulations, and

criteria are applicable to other facilities. No department,

agency, or instrumentality of the United States may adopt or

utilize any such guidelines, rules, regulations, or criteria

which are inconsistent with the guidelines, rules, regulations,

and criteria established by the Administrator under this

chapter.

(3) Exceptions

35a

This subsection shall not apply to the extent otherwise

provided in this section with respect to applicable time

periods. This subsection shall also not app!y to any

requirements relating to bonding, insurance, or financial

responsibility. Nothing in this chapter shall be construed to

require a State to comply with section 9604(c)(3) of this title

in the case of a facility which is owned or operated by any

department, agency, or instrumentality of the United States.

(4) State laws

State laws concerning removal and remedial action,

including State laws regarding enforcement, shall apply to

removal and remedial action at facilities owned or operated

by a department, agency, or instrumentality of the United

States or facilities that are the subject of a deferral under

subsection (h)(3)(C) of this section when such facilities are

not included on the National Priorities List. The preceding

sentence shall not apply to the extent a State law would apply

any standard or requirement to such facilities which is more

stringent than the standards and requirements applicable to

facilities which are not owned or operated by any such

department, agency, or instrumentality.

(b) Notice

Each department, agency, and instrumentality of the

United States shall add to the inventory of Federal agency

hazardous waste facilities required to be submitted under

section 3016 of the Solid Waste Disposal Act (42 U.S.C.

6937) (in addition to the information required under section

3016(a)(3) of such Act (42 U.S.C. 6937(a)(3))) information

on contamination from each facility owned or operated by the

department, agency, or instrumentality if such contamination

affects contiguous or adjacent property owned by the

department, agency, or instrumentality or by any other

person, including a description of the monitoring data

obtained.

The Administrator shall establish a special Federal

Agency Hazardous Waste Compliance Docket (hereinafter in

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this section referred to as the "docket") which shall contain

each of the following:

(1) All information submitted under section 3016 of the

Solid Waste Disposal Act (42 U.S.C. 6937) and subsection

(b) of this section regarding any Federal facility and notice of

each subsequent action taken under this chapter with respect

to the facility.

(2) Information submitted by each department, agency,

or instrumentality of the United States under section 3005 or

3010 of such Act (42 U.S.C. 6925, 6930).

(3) Information submitted by the department, agency, or

instrumentality under section 9603 of this title.

The docket shall be available for public inspection at

reasonable times. Six months after establishment of the

docket and every 6 months thereafter, the Administrator shall

publish in the Federal Register a list of the Federal facilities

which have been included in the docket during the

immediately preceding 6-month period. Such publication

shall also indicate where in the appropriate regional office of

the Environmental Protection Agency additional information

may be obtained with respect to any facility on the docket.

The Administrator shall establish a program to provide

information to the public with respect to facilities which are

included in the docket under this subsection.

(d) Assessment and evaluation

(1) In general

The Administrator shall take steps to assure that a

preliminary assessment is conducted for each facility on the

docket.

Following such preliminary assessment, the Administrator

shall, where appropriate -

(A) evaluate such facilities in accordance with the

criteria established in accordance with section 9605 of this

title under the National Contingency Plan for determining

priorities among releases; and

(B) include such facilities on the National Priorities

List maintained under such plan if the facility meets such

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criteria.

(2) Application of criteria

(A) In general

Subject to subparagraph (B), the criteria referred to in

paragraph (1) shall be applied in the same manner as the

criteria are applied to facilities that are owned or

operated by persons other than the United States.

(B) Response under other law

It shall be an appropriate factor to be taken into

consideration for the purposes of section 9605(a)(8)(A) of

this title that the head of the department, agency, or

instrumentality that owns or operates a facility has arranged

with the Administrator or appropriate State authorities to

respond appropriately, under authority of a law other than

this chapter, to a release or threatened release of a hazardous

substance.

(3) Completion

Evaluation and listing under this subsection shall be

completed in accordance with a reasonable schedule

established by the Administrator.

(e) Required action by department “

(1) R/FS

Not later than 6 months after the inclusion of any facility

on the National Priorities List, the department, agency, or

instrumentality which owns or operates such facility shall, in

consultation with the Administrator and appropriate State

authorities, commence a remedial investigation and

feasibility study for such facility. In the case of any facility

which is listed on such list before October 17, 1986, the

department, agency, or instrumentality which owns or

operates such facility shall, in consultation with the

Administrator and appropriate State authorities, commence

such an investigation and study for such facility within one

year after October 17, 1986. The Administrator and

appropriate State authorities shall publish a timetable and

deadlines for expeditious completion of such investigation

and study.

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(2) Commencement of remedial action; interagency

agreement The Administrator shall review the results of each

investigation and study conducted as provided in paragraph

(1). Within 180 days thereafter, the head of the department,

agency, or instrumentality concerned shall enter into an

interagency agreement with the Administrator for the

expeditious completion by such department, agency, or

instrumentality of all necessary remedial action at such

facility. Substantial continuous physical onsite remedial

action shall be commenced at each facility not later than 15

months after completion of the investigation and study. All

such interagency agreements, including review of alternative

remedial action plans and selection of remedial action, shall

comply with the public participation requirements of section

9617 of this title.

(3) Completion of remedial actions

Remedial actions at facilities subject to interagency

agreements under this section shall be completed as

expeditiously as practicable. Each agency shall include in its

annual budget submissions to the Congress a review of

alternative agency funding which could be used to provide

for the costs of remedial action. The budget submission shall

also include a statement of the hazard posed by the facility to

human health, welfare, and the environment and identify the

specific consequences of failure to begin and complete

remedial action.

(4) Contents of agreement

Each interagency agreement under this subsection shall

include, but shall not be limited to, each of the following:

(A) A review of alternative remedial actions and

selection of a remedial action by the head of the relevant

department, agency, or instrumentality and the Administrator

or, if unable to reach agreement on selection of a remedial

action, selection by the Administrator.

(B) A schedule for the completion of each such

remedial action.

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maintenance of the facility.

(5) Annual report

Each department, agency, or instrumentality responsible

for compliance with this section shall furnish an annual

report to the Congress concerning its progress in

implementing the requirements of this section. Such reports

shall include, but shall not be limited to, each of the

following items:

(A) A report on the progress in reaching interagency

agreements under this section.

(B) The specific cost estimates and budgetary

proposals involved in each interagency agreement.

each proposed interagency agreement.

(D) A description of the instances in which no

agreement was reached.

(E) A report on progress in conducting investigations

and studies under paragraph (1).

(F) A report on progress in conducting remedial

actions.

(G) A report on progress in conducting remedial action

at facilities which are not listed on the National Priorities

List. With respect to instances in which no agreement was

reached within the required time period, the department, 4

agency, or instrumentality filing the report under this |

paragraph shall include in such report an explanation of the ,

reasons why no agreement was reached. The annual report

required by this paragraph shall also contain a detailed

description on a State-by-State basis of the status of each

facility subject to this section, including a description of the

hazard presented by each facility, plans and schedules for

initiating and completing response action, enforcement status

(where appropriate), and an explanation of any

postponements or failure to complete response action. Such

reports shall also be submitted to the affected States.

(6) Settlements with other parties

If the Administrator, in consultation with the head of the

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relevant department, agency, or instrumentality of the United

States, determines that remedial investigations and feasibility

studies or remedial action will be done properly at the

Federal facility by another potentially responsible party

within the deadlines provided in paragraphs (1), (2), and (3)

of this subsection, the Administrator may enter into an

agreement with such party under section 9622 of this title

(relating to settlements). Following approval by the Attorney

General of any such agreement relating to a remedial action,

the agreement shall be entered in the appropriate United

States district court as a consent decree under section 9606 of

this title.

(f) State and local participation

The Administrator and each department, agency, or

instrumentality responsible for compliance with this section

shall afford to relevant State and local officials the

opportunity to participate in the planning and selection of the

remedial action, including but not limited to the review of all

applicable data as it becomes available and the development

of studies, reports, and action plans. In the case of State

officials, the opportunity to participate shall be provided in

accordance with section 9621 of this title.

(g) Transfer of authorities

Except for authorities which are delegated by the

Administrator to an officer or employee of the Environmental

Protection Agency, no authority vested in the Administrator

under this section may be transferred, by executive order of

the President or otherwise, to any other officer or employee

of the United States or to any other person.

(h) Property transferred by Federal agencies

(1) Notice

After the last day of the 6-month period beginning on

the effective date of regulations under paragraph (2) of this

subsection, whenever any department, agency, or

instrumentality of the United States enters into any contract

for the sale or other transfer of real property which is owned

by the United States and on which any hazardous substance

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was stored for one year or more, known to have been

released, or disposed of, the head of such department,

agency, or instrumentality shall include in such contract

notice of the type and quantity of such hazardous substance

and notice of the time at which such storage, release, or

disposal took place, to the extent such information is

available on the basis of a complete search of agency files.

(2) Form of notice; regulations

Notice under this subsection shall be provided in such

form and manner as may be provided in regulations

promulgated by the Administrator. As promptly as

practicable after October 17, 1986, but not later than 18

months after October 17, 1986, and after consultation with

the Administrator of the General Services Administration, the

Administrator shall promulgate regulations regarding the

notice required to be provided under this subsection.

(3) Contents of certain deeds

(A) In general

After the last day of the 6-month period beginning on

the effective date of regulations under paragraph (2) of this

subsection, in the case of any real property owned by the

United States on which any hazardous substance was stored

for one year or more, known to have been released, or

disposed of, each deed entered into for the transfer of such

property by the United States to any other person or entity

shall contain -

(i) to the extent such information is available on the

basis of a complete search of agency files -

(I) a notice of the type and quantity of such

hazardous substances,

(II) notice of the time at which such storage, release,

or disposal took place, and

(III) a description of the remedial action taken, if

any,

(ii) a covenant warranting that -

(I) all remedial action necessary to protect human

health and the environment with respect to any such

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substance remaining on the property has been taken before

the date of such transfer, and

(II) any additional remedial action found to be

necessary after the date of such transfer shall be conducted by

the United States; and

(iii) a clause granting the United States access to the

property in any case in which remedial action or corrective

action is found to be necessary after the date of such

transfer.

(B) Covenant requirements

For purposes of subparagraphs (A)(ii)(I) and (C)(iii),

all remedial action described in such subparagraph has been

taken if the construction and installation of an approved

remedial design has been completed, and the remedy has

been demonstrated to the Administrator to be operating

properly and successfully. The carrying out of long-term

pumping and treating, or operation and maintenance, after the

remedy has been demonstrated to the Administrator to be

operating properly and successfully does not preclude the

transfer of the property. The requirements of subparagraph

(A)(ii) shall not apply in any case in which the person or

entity to whom the real property is transferred is a potentially

responsible party with respect to such property. The

requirements of subparagraph (A)(ii) shall not apply in any

case in which the transfer of the property occurs or has

occurred by means of a lease, without regard to whether the

lessee has agreed to purchase the property or whether the

duration of the lease is longer than 55 years. In the case of a

lease entered into after September 30, 1995, with respect to

real property located at an installation approved for closure or

realignment under a base closure law, the agency leasing the

property, in consultation with the Administrator, shall

determine before leasing the property that the property is

suitable for lease, that the uses contemplated for the lease are

consistent with protection of human health and the

environment, and that there are adequate assurances that the

United States will take all remedial action referred to in

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subparagraph (A)(ii) that has not been taken on the date of

the lease.

(i) In general

The Administrator, with the concurrence of the

Governor of the State in which the facility is located (in the

case of real property at a Federal facility that is listed on the

National Priorities List), or the Governor of the State in

which the facility is located (in the case of real property

at a Federal facility not listed on the National Priorities

List) may defer the requirement of subparagraph (A)(1i)(1)

with respect to the property if the Administrator or the

Governor, as the case may be, determines that the property is

suitable for transfer, based on a finding that -

(I) the property is suitable for transfer for the use

intended by the transferee, and the intended use is

consistent with protection of human health and the

environment;

(II) the deed or other agreement proposed to govern

the transfer between the United States and the transferee of

the property contains the assurances set forth in clause

(ii);

(III) the Federal agency requesting deferral has

provided notice, by publication in a newspaper of general

circulation in the vicinity of the property, of the

proposed transfer and of the opportunity for the public to

submit, within a period of not less than 30 days after the

date of the notice, written comments on the suitability of

the property for transfer; and

(IV) the deferral and the transfer of the property will

not substantially delay any necessary response action at

the property.

(ii) Response action assurances

With regard to a release or threatened release of a :

hazardous substance for which a Federal agency is potentially

responsible under this section, the deed or other agreement

proposed to govern the transfer shall contain assurances that

44a

(I) provide for any necessary restrictions on the use

of the property to ensure the protection of human health and

the environment;

(Il) provide that there will be restrictions on use

necessary to ensure that required remedial investigations,

response action, and oversight activities will not be

disrupted;

(IIT) provide that all necessary response action will

be taken and identify the schedules for investigation and

completion of all necessary response action as approved by

the appropriate regulatory agency; and

(IV) provide that the Federal agency responsible for

the property-subject to transfer will submit a budget request

to the Director of the Office of Management and Budget that

adequately addresses schedules for investigation and

completion of all necessary response action, subject to

congressional authorizations and appropriations.

(iii) Warranty

When all response action necessary to protect human

health and the environment with respect to any substance

remaining on the property on the date of transfer has been

taken, the United States shall execute and deliver to the

transferee an appropriate document containing a warranty

that all such response action has been taken, and the making

of the warranty shall be considered to satisfy the requirement

of subparagraph (A)(ii)(I).

(iv) Federal responsibility

A deferral under this subparagraph shall not increase,

diminish, or affect in any manner any rights or obligations

of a Federal agency (including any rights or obligations

under this section and sections 9606 and 9607 of this title

existing prior to transfer) with respect to a property

transferred under this subparagraph.

(4) Identification of uncontaminated property

(A) In the case of real property to which this paragraph

applies (as set forth in subparagraph (E)), the head of the

45a

department, agency, or instrumentality of the United States

with jurisdiction over the property shall identify the real

property on which no hazardous substances and no petroleum

products or their derivatives were known to have been

released or disposed of. Such identification shall be based on

an investigation of the real property to determine or discover

the obviousness of the presence or likely presence of a

release or threatened release of any hazardous substance or

any petroleum product or its derivatives, including aviation

fuel and motor oil, on the real property. The identification

shall consist, at a minimum, of a review of each of the

following sources of information concerning the current and

previous uses of the real property:

(i) A detailed search of Federal Government records

pertaining to the property.

(ii) Recorded chain of title documents regarding the

real property.

(iii) Aerial photographs that may reflect prior uses of

the real property and that are reasonably obtainable through

State or local government agencies.

(iv) A visual inspection of the real property and any

buildings, structures, equipment, pipe, pipeline, or other

improvements on the real property, and a visual inspection of

properties immediately adjacent to the real property.

(v) A physical inspection of property adjacent to the

real property, to the extent permitted by owners or operators

of such property.

(vi) Reasonably obtainable Federal, State, and local

government records of each adjacent facility where there has

been a release of any hazardous substance or any petroleum

product or its derivatives, including aviation fuel and motor

oil, and which is likely to cause or contribute to a release or

threatened release of any hazardous substance or any

petroleum product or its derivatives, including aviation fuel

and motor oil, on the real property.

(vii) Interviews with current or former employees

involved in operations on the real property. Such

46a

identification shall also be based on sampling, if

appropriate under the circumstances. The results of the

identification shall be provided immediately to the

Administrator and State and local government officials and

made available to the public.

(B) The identification required under subparagraph (A)

is not complete until concurrence in the results of the

identification is obtained, in the case of real property that is

part of a facility on the National Priorities List, from the

Administrator, or, in the case of real property that is not part

of a facility on the National Priorities List, from the

appropriate State official. In the case of a concurrence which

is required from a State official, the concurrence is deemed to

be obtained if, within 90 days after receiving a request for the

concurrence, the State official has not acted (by either

concurring or declinifig to concur) on the request for

concurrence.

(C)(i) Except as provided in clauses (ii), (iii), and (iv),

the identification and concurrence required under

subparagraphs (A) and (B), respectively, shall be made at

least 6 months before the termination of operations on the

real property.

(ii) In the case of real property described in

subparagraph (E)(i)(II) on which operations have been closed

or realigned or scheduled for closure or realignment pursuant

to a base closure law described in subparagraph (E)(ii)(I) or

(E)(ii)(II) by October 19, 1992, the identification and

concurrence required under subparagraphs (A) and (B),

respectively, shall be made not later than 18 months after

October 19, 1992.

(iii) In the case of real property dasbeti in

subparagraph (E)(i)(II) on which operations are closed or

realigned or become scheduled for closure or realignment

pursuant to the base closure law described in subparagraph

(E)(ii)(II) after October 19, 1992, the identification and

concurrence required under subparagraphs (A) and (B),

respectively, shall be made not later than 18 months after the *

’ 47a .

date by which a joint resolution disapproving the closure or

realignment of the real property under section 2904(b)of such

base closure law must be enacted, and such a joint

resolution has not been enacted.

(iv) In the case of real property described in

subparagraphs (E)(i)(II) on which operations are closed or

realigned pursuant to a base closure law described in

subparagraph (E)(ii)(III) or (E)(ii)(TV), the identification and

concurrence required under subparagraphs (A) and (B),

respectively, shall be made not later than 18 months after the

date on which the real property is selected for closure or

realignment pursuant to such a base closure law.

(D) In the case of the sale or other transfer of any parcel

of real property identified under subparagraph (A), the deed

entered into for the sale or transfer of such property by the

United States to any other person or entity shall contain -

(i) a covenant warranting that any response action or

corrective action found to be necessary after the date of such

sale or transfer shall be conducted by the United States; and

(ii) a clause granting the United States access to the

property in any case in which a response action or corrective

action is found to be necessary after such date at such

property, or such access is necessary to carry out a response

action or corrective action on adjoining property.

(E)(i) This_paragraph applies to -

(I) real property owned by the United States and on

which the United States plans to terminate Federal

Government operations, other than real property described in

subclause (II); and

(II) real property that is or has been used as a military

installation and on which the United States plans to close or

realign military operations pursuant to a base closure law.

(ii) For purposes of this paragraph, the term "base

closure law" includes the following:

(I) Title II of the Defense Authorization Amendments

and Base Closure and Realignment Act (Public Law 100-526;

10 U.S.C. 2687 note).

48a

(Il) The Defense Base Closure and Realignment Act of

1990 (part A of title XXIX of Public Law 101-510; 10 U.S.C.

2687 note).

(Ill) Section 2687 of title 10.

(IV) Any provision of law authorizing the closure or

realignment of a military installation enacted on or after

October 19, 1992.

(F) Nothing in this paragraph shall affect, preclude, or

otherwise impair the termination of Federal Government

operations on real property owned by the United States.

(5) Notification of States regarding certain leases

In the case of real property owned by the United States,

on which any hazardous substance or any petroleum product

or its derivatives (including aviation fuel and motor oil) was

stored for one year or more, known to have been released, or

disposed of, and on which the United States plans to

terminate Federal Government operations, the head of the

department, agency, or instrumentality of the United States

with jurisdiction over the property shall notify the State in

which the property is located of any lease entered into by the

United States that will encumber the property beyond the

date of termination of operations on the property. Such

notification shall be made before entering into the lease and

shall include the length of the lease, the name of person to

whom the property is leased, and a description of the uses

that will be allowed under the lease of the property and

buildings and other structures on the property.

(i) Obligations under Solid Waste Disposal Act

Nothing in this section shall affect or impair the

obligation of any department, agency, or instrumentality of

the United States to comply with any requirement of the

Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) (including

corrective action requirements).

(j) National security

(1) Site specific Presidential orders

The President may issue such orders regarding response

actions at any specified site or facility of the Department of

49a

Energy or the Department of Defense as may be necessary to

protect the national security interests of the United States at

that site or facility. Such orders may include, where

necessary to protect such interests, an exemption from any

requirement contained in this subchapter or under title III of

the Superfund Amendments and Reauthorization Act of 1986

(42 U.S.C. 11001 et seq.) with respect to the site or facility

concerned. The President shall notify the Congress within 30

days of the issuance of an order under this paragraph

providing for any such exemption. Such notification shall

include a statement of the reasons for the granting of the

exemption. An exemption under this paragraph shall be for a

specified period which may not exceed one year.

Additional exemptions may be granted, each upon the

President's issuance of a new order under this paragraph for

the site or facility concerned. Each such additional

exemption shall be for a specified period which may not

- exceed one year. It is the intention of the Congress that

whenever an exemption is issued under this paragraph the

response action shall proceed as expeditiously as practicable.

The Congress shall be notified periodically of the progress of

any response action with respect to which an exemption has

been issued under this paragraph. No exemption shall be

granted under this paragraph due to lack of appropriation

unless the President shail have specifically requested such

appropriation as a part of the budgetary process and the

Congress shall have failed to make available such

requested appropriation.

(2) Classified information

Notwithstanding any other provision of law, all

requirements of the Atomic Energy Act (42 U.S.C. 2011 et

seq.) and all Executive orders concerning the handling of

restricted data and national security information, including

"need to know" requirements, shall be applicable to any grant

of access to classified information under the provisions of

this chapter or under title III of the Superfund Amendments

and Reauthorization Act of 1986 (42 U.S.C. 11001 et seq.).

50a

United States Code

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL

RESPONSE, COMPENSATION, AND LIABILITY

SUBCHAPTER I - HAZARDOUS SUBSTANCES

RELEASES, LIABILITY, COMPENSATION

Section 9604. Response authorities

(a) Removal and other remedial action by President;

applicability of national contingency plan; response by

potentially responsible parties; public health threats;

limitations on response; exception

(1) Whenever (A) any hazardous substance is released or

there is a substantial threat of such a release into the

environment, or (B) there is a release or substantial threat of

release into the environment of any pollutant or contaminant

which may present an imminent and substantial danger to the

public health or welfare, the President is authorized to act,

consistent with the national contingency plan, to remove or

arrange for the removal of, and provide for remedial action

relating to such hazardous substance, pollutant, or

contaminant at any time (including its removal from any

contaminated natural resource), or take any other response

measure consistent with the national contingency plan which

the President deems necessary to protect the public health or

welfare or the environment. When the President determines

that such action will be done properly and promptly by the

owner or operator of the facility or vessel or by any other

responsible party, the President may allow such person to

carry out the action, conduct the remedial investigation, or

conduct the feasibility study in accordance with section 9622

of this title. No remedial investigation or feasibility study

(RI/FS) shall be authorized except on a determination by the

President that the party is qualified to conduct the RI/FS and

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only if the President contracts with or arranges for a qualified

person to assist the President in overseeing and reviewing the

conduct of such RI/FS and if the responsible party agrees to

reimburse the Fund for any cost incurred by the President

under, or in connection with, the oversight contract or

arrangement. In no event shall a potentially responsible party

be subject to a lesser standard of liability, receive preferential

treatment, or in any other way, whether direct or indirect,

benefit from any such arrangements as a response action

contractor, or as a person hired or retained by such a

response action contractor, with respect to the release or

facility in question. The President shall give primary

attention to those releases which the President deems may

present a public health threat.

(2) Removal Action. - Any removal action ahiidon by

the President under this subsection (or by any other person

referred to in section 9622 of this title) should, to the extent

the President deems practicable, contribute to the efficient

performance of any long term remedial action with respect to

the release or threatened release concerned.

(3) Limitations on Response. - The President shall not

provide for a removal or remedial action under this section in

response to a release or threat of release -

(A) of a naturally occurring substance in its unaltered

form, or altered solely through naturally occurring processes

or phenomena, from a location where it is naturally found;

(B) from products which are part of the structure of, and

result in exposure within, residential buildings or business or

community structures; or

deterioration of the system through ordinary use.

(4) Exception to Limitations. - Notwithstanding

paragraph (3) of this subsection, to the extent authorized by

this section, the President may respond to any release or

threat of release if in the President's discretion, it constitutes a

public health or environmental emergency and no other

person with the authority andcapability to respond to the

52a

emergency will do so in a timely manner.

(b) Investigations, monitoring, coordination, etc., by

President

(1) Information; studies and investigations

Whenever the President is authorized to act pursuant to

subsection (a) of this section, or whenever the President has

reason to believe that a release has occurred or is about to

occur, or that illness, disease, or complaints thereof may be

attributable to exposure to a hazardous substance, pollutant,

or contaminant and that a release may have occurred or be

occurring, he may undertake such investigations, monitoring,

surveys, testing, and other information gathering as he may

deem necessary or appropriate to identify the existence and

extent of the release or threat thereof, the source and nature

of the hazardous substances, pollutants or contaminants

involved, and the extent of danger to the public health or

welfare or to the environment. In addition, the President may

undertake such planning, legal, fiscal, economic, engineering,

architectural, and other studies or investigations as he may

deem necessary or appropriate to plan and direct response

actions, to recover the costs thereof, and to enforce the

provisions of this chapter.

(2) Coordination of investigations

The President shall promptly notify the appropriate

Federal and State natural resource trustees of potential

damages to natural resources resulting from releases under

investigation pursuant to this section and shall seek to

coordinate the assessments, investigations, and planning

under this section with such Federal and State trustees.

specified amount for response actions; consultation by

President with affected States; contracts or cooperative

agreements by States with President prior to remedial actions;

cost-sharing agreements; selection by President of remedial

actions; State credits: granting of credit, expenses before

listing or agreement, response actions between 1978 and

1980, State expenses after December 11, 1980, in excess of

53a

10 percent of costs, item-by-item approval, use of credits;

operation and maintenance; limitation on source of funds for

O&M; recontracting; siting

(1) Unless (A) the President finds that (i) continued

response actions are immediately required to prevent, limit,

or mitigate an emergency, (ii) there is an immediate risk to

public health or welfare or the environment, and (iii) such

assistance will not otherwise be provided on a timely basis,

or (B) the President has determined the appropriate remedial

actions pursuant to paragraph (2) of this subsection and the

State or States in which the source of the release is located

have complied with the requirements of paragraph (3) of this

subsection, or (C) continued response action is otherwise

appropriate and consistent with the remedial action to be

taken (FOOTNOTE 1) obligations from the Fund, other than

those authorized by subsection (b) of this section, shall not

continue after $2,000,000 has been obligated for response

actions or 12 months has elapsed from the date of initial

response to a release or threatened release of hazardous

substances.

(FOOTNOTE 1) So in original. Probably should be

foliowed by a comma.

{25 The President shall consult with the affected State or

States before determining any appropriate remedial action to

be: vakten pursuant to the wethory granted under subsection

(a) of this section.

(3) The President shall not provide any remedial actions

pursuant to this section unless the State in which the release

occurs first enters into a contract or cooperative agreement

with the President providing assurances deemed adequate by

the President that (A) the State will assure all future

maintenance of the removal and remedial actions provided

for the expected life of such actions as determined by the

President; (B) the State will assure the availability of a

hazardous waste disposal facility acceptable to the President

and in compliance with the requirements of subtitle C of the

Solid Waste Disposal Act (42 U.S.C. 6921 et seq.) for any

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necessary offsite storage, destruction,-treatment, or secure

disposition of the hazardous substances; and (C) the State

will pay or assure payment of (i) 10 per centum of the costs

of the remedial action, including all future maintenance, or

(ii) 50 percent (or such greater amount as the President may

determine appropriate, taking into account the degree of

responsibility of the State or political subdivision for the

release) of any sums expended in response to a release at a

facility, that was operated by the State or a political

subdivision thereof, either directly or through a contractual

relationship or otherwise, at the time of any disposal of

hazardous substances therein. For the purpose of clause (ii)

of this subparagraph, the term “facility” does not include

navigable waters or the beds underlying those waters. In the

case of remedial action to be taken on land or water held by

an Indian tribe, held by the United States in trust for Indians,

held by a member of an Indian tribe (if such land or water is

subject to a trust restriction on alienation), or otherwise

within the borders of an Indian reservation, the requirements

of this paragraph for assurances regarding future maintenance

and cost-sharing shall not apply, and the President shall

provide the assurance required by this paragraph regarding

the availability of a hazardous waste disposal facility.

(4) Selection of Remedial Action. - The President shall

select remedial actions to carry out this section in accordance

with section 9621 of this title (relating to cleanup standards).

(5) State Credits. -

(A) Granting of credit. - The President shall grant a

State a credit against the share of the costs, for which it is

responsible under paragraph (3) with respect to a facility

listed on the National Priorities List under the National

Contingency Plan, for amounts expended by a State for

remedial action at such facility pursuant to a contract or

cooperative agreement with the President. The credit under

this paragraph shall be limited to those State expenses which

the President determines to be reasonable, documented, direct

out-of-pocket expenditures of non-Federal funds.

5Sa

(B) Expenses before listing or agreement. - The credit

under this paragraph shall include expenses for remedial

action at a facility incurred before the listing of the facility on

the National Priorities List or before a contract or cooperative

agreement is entered into under subsection (d) of this section

for the facility if - \

(i) after such expenses are incurred the facility is listed

on such list and a contract or cooperative agreement is

entered into for the facility, and

(ii) the President determines that such expenses would

have been credited to the State under subparagraph (A) had

the expenditures been made after listing of the facility on

such list and after the date on which such contract or

cooperative agreement is entered into.

credit under this paragraph shall include funds expended or

obligated by the State or a political subdivision thereof after

January 1, 1978, and before December 11, 1980, for cost-

eligible response actions and claims for damages

compensable under section 9611 of this title.

(D) State expenses after december 11, 1980, in excess of

10 percent of costs. - The credit under this paragraph shall

include 90 percent of State expenses incurred at a facility

owned, but not operated, by such State or by a political

subdivision thereof. Such credit applies only to expenses

incurred pursuant to a contract or cooperative agreement

under subsection (d) of this section and only to expenses

incurred after December 11, 1980, but before October 17,

1986.

(E) Item-by-item approval. - In the case of expenditures

made after October 17, 1986, the President may require prior

approval of each item of expenditure as a condition of

granting a credit under this paragraph.

(F) Use of credits. - Credits granted under this paragraph

for funds expended with respect to a facility may be used by

the State to reduce all or part of the share of costs otherwise

required to be paid by the State under paragraph (3) in

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connection with remedial actions at such facility. If the

amount of funds for which credit is allowed under this

paragraph exceeds such share of costs for such facility, the

State may use the amount of such excess to reduce all or part

of the share of such costs at other facilities in that State. A

credit shall not entitle the State to any direct payment.

(6) Operation and Maintenance. - For the purposes of

paragraph (3) of this subsection, in the case of ground or

surface water contamination, completed remedial action

includes the completion of treatment or other measures,

whether taken onsite or offsite, necessary to restore ground

and surface water quality to a level that assures protection of

human health and the environment. With respect to such

measures, the operation of such measures for a period of up

to 10 years after the construction or installation and

commencement of operation shall be considered remedial

action. Activities required to maintain the effectiveness of

such measures following such period or the completion of

remedial action, whichever is earlier, shall be considered

Operation or maintenance.

(7) Limitation on Source of Funds for O&M. - During

any period after the availability of funds received by the

Hazardous Substance Superfund established under

subchapter A of chapter 98 of title 26 from tax revenues or

appropriations from general revenues, the Federal share of

the payment of the cost of operation or maintenance pursuant

to paragraph (3)(C)(i) or paragraph (6) of this subsection

(relating to operation and maintenance) shall be from funds

received by the Hazardous Substance Superfund from

amounts recovered on behalf of such fund under this chapter.

(8) Recontracting. - The President is authorized to

undertake or continue whatever interim remedial actions the

President determines to be appropriate to reduce risks to

public health or the environment where the performance of a

complete remedial action requires recontracting because of

the discovery of sources, types, or quantities of hazardous

substances not known at the time of entry into the original

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contract. The total cost of interim actions undertaken at a

facility pursuant to this paragraph shall not exceed

$2,000,000.

(9) Siting. - Effective 3 years after October 17, 1986, the

President shall not provide any remedial actions pursuant to

this section unless the State in which the release occurs first

enters into a contract or cooperative agreement with the

President providing assurances deemed adequate by the

President that the State will assure the availabilityof

hazardous waste treatment or disposal facilities which -

(A) have adequate capacity for the destruction,

treatment, or secure disposition of all hazardous wastes that

are reasonably expected to be generated within the State

during the 20-year period following the date of such contract

or cooperative agreement and to be disposed of, treated, or

destroyed,

(B) are within the State or outside the State in

accordance with an interstate agreement or regional

agreement or authority,

(D) are in compliance with the requirements of subtitle

C of the Solid Waste Disposal Act (42 U.S.C. 6921 et seq.).

(d) Contracts or cooperative agreements by President with

States or political subdivisions or Indian tribes; State

applications, terms and conditions; reimbursements; cost-

sharing provisions; enforcement requirements and procedures

(1) Cooperative Agreements. -

(A) State applications. - A State or political subdivision

thereof or Indian tribe may apply to the President to carry out

actions authorized in this section. If the President determines

that the State or political subdivision or Indian tribe has the

capability to carry out any or all of such actions in

accordance with the criteria and priorities established

pursuant to section 9605(a)(8) of this title and to carry out

related enforcement actions, the President may enter into a

contract or cooperative agreement with the State or political

subdivision or Indian tribe to carry out such actions. The

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President shall make a determination regarding such an

application within 90 days after the President receives the

application.

(B) Terms and conditions. - A contract or cooperative

agreement under this paragraph shall be subject to such terms

and conditions as the President may prescribe. The contract

or cooperative agreement may cover a specific facility or

specific facilities.

during the period beginning September 30, 1985, and ending

on October 17, 1986, for response actions at any site included

on the National Priorities List and subject to a cooperative

agreement under this chapter shall be reimbursed for the

share of costs of such actions for which the Federal

Government is responsible under this chapter.

(2) If the President enters into a cost-sharing agreement

pursuant to subsection (c) of this section or a contract or

cooperative agreement pursuant to this subsection, and the

State or political subdivision thereof fails to comply with any

requirements of the contract, the President may, after

providing sixty days notice, seek in the appropriate Federal

district court to enforce the contract or to recover any funds

advanced or any costs incurred because of the breach of the

contract by the State or political subdivision.

(3) Where a State or a political subdivision thereof is

acting in behalf of the President, the President is authorized

to provide technical and legal assistance in the administration

and enforcement of any contract or subcontract in connection

with response actions assisted under this subchapter, and to

intervene in any civil action involving the enforcement of

such contract or subcontract.

(4) Where two or more noncontiguous facilities are

reasonably related on the basis of geography, or on the basis

of the threat, or potential threat to the public health or welfare

or the environment, the President may, in his discretion, treat

these related facilities as one for purposes of this section.

(e) Information gathering and access

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(1) Action authorized

Any officer, employee, or representative of the

President, duly designated by the President, is authorized to

take action under paragraph (2), (3), or (4) (or any

combination thereof) at a vessel, facility, establishment,

place, property, or location or, in the case of paragraph (3) or

(4), at any vessel, facility, establishment, place, property, or

location which is adjacent to the vessel, facility,

establishment, place, property, or location referred to in such

paragraph (3) or (4). Any duly designated officer, employee,

or representative of a State or political subdivision under a

contract or cooperative agreement under subsection (d)(1) of

this section is also authorized to take such action. The

authority of paragraphs (3) and (4) may be exercised only if

there is a reasonable basis to believe there may be a

release or threat of release of a hazardous substance or

pollutant or contaminant. The authority of this subsection

may be exercised only for the purposes of determining the

need for response, or choosing or taking any response action

under this subchapter, or otherwise enforcing the provisions

of this subchapter.

(2) Access to information

Any officer, employee, or representative described in

paragraph (1) may require any person who has or may have

information relevant to any of the following to furnish, upon

reasonable notice, information or documents relating to such

matter: :

(A) The identification, nature, and quantity of materials

which have been or are generated, treated, stored, or disposed

of at a vessel or facility or transported to a vessel or

facility.

(B) The nature or extent of a release or threatened

release of a hazardous substance or pollutant or contaminant

at or from a vessel or facility.

pay for or to perform a cleanup.

In addition, upon reasonable notice, such person either (i)

60a

shall grant any such officer, employee, or representative

access at all reasonable times to any vessel, facility,

establishment, place, property, or location to inspect and

copy all documents or records relating to such matters or (ii)

shall copy and furnish to the officer, employee, or

representative all such documents or records, at the option

and expense of such person.

(3) Entry |

Any officer, employee, or representative described in

paragraph (1) is authorized to enter at reasonable times any of

the following:

(A) Any vessel, facility, establishment, or other place

or property where any hazardous substance or pollutant or

contaminant may be or has been generated, stored, treated,

disposed of, or transported from.

(B) Any vessel, facility, establishment, or other place

or property from which or to which a hazardous substance or

pollutant or contaminant has been or may have been released.

y (C) Any vessel, facility, establishment, or other place

or property where such release is or may be threatened.

(D) Any vessel, facility, establishment, or other place

or property where entry is needed to determine the need for

response or the appropriate response or to effectuate a

response action under this subchapter.

(4) Inspection and samples

(A) Authority

Any officer, employee or representative described in

paragraph (1) is authorized to inspect and obtain samples

from any vessel, facility, establishment, or other place or

property referred to in paragraph (3) or from any location of

any suspected hazardous substance or pollutant or

contaminant. Any such officer, employee, or representative

is authorized to inspect and obtain samples of any containers

or labeling for suspected hazardous substances or pollutants

or contaminants. Each such inspection shall be completed

with reasonable promptness.

(B) Samples

6la

If the officer, employee, or representative obtains any

samples, before leaving the premises he shall give to the

owner, operator, tenant, or other person in charge of the place

from which the samples were obtained a receipt describing

the sample obtained and, if requested, a portion of each such

sample. A copy of the results of any analysis made of such

samples shall be furnished promptly to the owner, operator,

tenant, or other person in charge, if such person can be

located.

(5) Compliance orders

(A) Issuance

If consent is not granted regarding any request made by

an officer, employee, or representative under paragraph (2),

(3), or (4), the President may issue an order directing

compliance with the request. The order may be issued after

such notice and opportunity for consultation as is reasonably

appropriate under the circumstances.

(B) Compliance

The President may ask the Attorney General to

commence a civil action to compel compliance with a request

or order referred to in subparagraph (A). Where there is a

reasonable basis to believe there may be a release or threat of

a release of a hazardous substance or pollutant or

contaminant, the court shall take the following actions:

(i) In the case of interference with entry or inspection,

the court shall enjoin such interference or direct compliance

with orders to prohibit interference with entry or inspection

unless under the circumstances of the case the demand for

entry or inspection is arbitrary and capricious, an abuse of

discretion, or otherwise not in accordance with law.

(ii) In the case of information or document requests or

orders, the court shall enjoin interference with such

information or document requests or orders or direct

compliance with the requests or orders to provide such

information or documents unless under the circumstances of

the case the demand for information or documents is arbitrary

and capricious, an abuse of discretion, or otherwise not in

62a

accordance with law.

The court may assess a civil penalty not to exceed

$25,000 for each day of noncompliance against any person

who unreasonably fails to comply with the provisions of

paragraph (2), (3), or (4) or an order issued pursuant to

subparagraph (A) of this paragraph.

(6) Other authority

Nothing in this subsection shall preclude the President

from securing access or obtaining information in any other

lawful manner.

(7) Confidentiality of information

(A) Any records, reports, or information obtained from

any person under this section (including records, reports, or

information obtained by representatives of the President)

shall be available to the public, except that upon a showing

satisfactory to the President (or the State, as the case may be)

by any person that records, reports, or information, or

particular part thereof (other than health or safety effects

data), to which the President (or the State, as the case may

be) or any officer, employee, or representative has access

under this section if made public would divulge information

entitled to protection under section 1905 of title 18, such

information or particular portion thereof shall be considered

confidential in accordance with the purposes of that section,

except that such record, report, document or information may

be disclosed to other officers, employees, or authorized

representatives of the United States concerned with carrying

out this chapter, or when relevant in any proceeding under

this chapter.

(B) Any person not subject to the provisions of section

1905 of title 18 who knowingly and willfully divulges or

discloses any information entitled to protection under this

subsection shall, upon conviction, be subject to a fine of not

more than $5,000 or to imprisonme! mot io exceed one year,

or both.

required to provide such data may (i) designate the data

63a

which such person believes is entitled to protection under this

subsection and (ii) submit such designated data separately

from other data submitted under this chapter. A designation

under this paragraph shall be made in writing and in such

manner as the President may prescribe by regulation.

(D) Notwithstanding any limitation contained in this

section or any other provision of law, all information reported

to or otherwise obtained by the President (or any

representative of the President) under this chapter shall be

made available, upon written request of any duly authorized

committee of the Congress, to such committee.

(E) No person required to provide information under this

chapter may claim that the information is entitled to

protection under this paragraph unless such person shows

each of the following:

(i) Such person has not disclosed the information to

any other person, other than a member of a local emergency

planning committee established under title III of the

Amendments and Reauthorization Act of 1986 (42 U.S.C.

11001 et seq.), an officer or employee of the United States or

a State or local government, an employee of such person, or a

person who is bound by a confidentiality agreement, and such

person has taken reasonable measures to protect the

confidentiality of such information and intends to continue to

take such measures. |

(ii) The information is not required to be disclosed, or

otherwise made available, to the public under any other

Federal or State law.

(iii) Disclosure of the information is likely to cause

substantial harm to the competitive position of such person.

(iv) The specific chemical identity, if sought to be

protected, is not readily discoverable through reverse

engineering.

(F) The following information with respect to any

hazardous substance at the facility or vessel shall not be

entitled to protection under this paragraph:

(i) The trade name, common name, or generic class or

64a

category of the hazardous substance.

(ii) The physical properties of the substance, including

its boiling point, melting point, flash point, specific gravity,

vapor density, solubility in water, and vapor pressure at 20

degrees celsius.

(iii) The hazards to health and the environment posed

by the substance, including physical hazards (such as

explosion) and potential acute and chronic health hazards.

(iv) The potential routes of human exposure to the

substance at the facility, establishment, place, or property

being investigated, entered, or inspected under this

subsection.

(v) The location of disposal of any waste stream.

(vi) Any monitoring data or analysis of monitoring data

pertaining to disposal activities.

(vii) Any hydrogeologic or geologic data.

(viii) Any groundwater monitoring data.

(f) Contracts for response actions; compliance with Federal

health and safety standards

In awarding contracts to any person engaged in response

actions, the President or the State, in any case where it is

awarding contracts pursuant to a contract entered into under

subsection (d) of this section, shall require compliance with

Federal health and safety standards established under section

9651(f) of this title by contractors and subcontractors as a

condition of such contracts.

(g) Rates for wages and labor standards applicable to

covered work

(1) All laborers and mechanics employed by contractors

or subcontractors in the performance of construction, repair,

or alteration work funded in whole or in part under this

section shall be paid wages at rates not less than those

prevailing on projects of a character similar in the locality as

determined by the Secretary of Labor in accordance with the

Davis-Bacon Act (40 U.S.C. 276a et seq.). The President

shall not approve any such funding without first obtaining

adequate assurance that required labor standards will be

65a

maintained upon the construction work.

(2) The Secretary of Labor shall have, with respect to the

labor standards specified in paragraph (1), the authority and

functions set forth in Reorganization Plan Numbered 14 of

1950 (15 F.R. 3176; 64 Stat. 1267) and section 276c of title

40.

(h) Emergency procurement powers; exercise by President

Notwithstanding any other provision of law, subject to

the provisions of section 9611 of this title, the President may

authorize the use of such emergency procurement powers as

he deems necessary to effect the purpose of this chapter.

Upon determination that such procedures are necessary, the

President shall promulgate regulations prescribing the

circumstances under which such authority shall be used and

the procedures governing the use of such authority.

(i) Agency for Toxic Substances and Disease Registry;

establishment, functions, etc.

(1) There is hereby established within the Public Health

Service an agency, to be known as the Agency for Toxic

Substances and Disease Registry, which shall report directly

to the Surgeon General of the United States. The __

Administrator of said Agency shall, with the cooperation of

the Administrator of the Environmental Protection Agency,

the Commissioner of the Food and Drug Administration, the

Directors of the National Institute of Medicine, National

Institute of Environmental Health Sciences, National Institute

of Occupational Saiety and Health, Centers for Disease

Control and Prevention, the Administrator of the

Occupational Safety and Health Administration, the

Administrator of the Social Security Administration, the

Secretary of Transportation, and appropriate State and local

health officials, effectuate and implement the health related

authorities of this chapter. In addition, said Administrator

shall -

(A) in cooperation with the States, establish and

maintain a national registry of serious diseases and illnesses

and a national registry of persons exposed to toxic

66a

substances;

(B) establish and maintain inventory of literature,

research, and studies on the health effects of toxic substances;

the Federal Government, establish and maintain a complete

listing of areas closed to the public or otherwise restricted in

use because of toxic substance contamination;

(D) in cases of public health emergencies caused or

believed to be caused by exposure to toxic subsiances,

provide medical care and testing to exposed individuals,

including but not limited to tissue sampling, chromosomal

testing where appropriate, epidemiological studies, or any

other assistance appropriate under the circumstances; and

(E) either independently or as part of other health status

survey, conduct periodic survey and screening programs to

determine relationships between exposure to toxic substances

and illness. In cases of public health emergencies, exposed

persons shall be eligible for admission to hospitals and other

facilities and services operated or provided by the Public

Health Service.

(2A) Within 6 months after October 17, 1986, the

Administrator of the Agency for Toxic Substances and

Disease Registry (ATSDR) and the Administrator of the

Environmental Protection Agency ("EPA") shall prepare a

list, in order of priority, of at least 100 hazardous substances

which are most commonly found at facilities on the National

Priorities List and which, in their sole discretion, they

determine are posing the most significant potential threat to

human health due to their known or suspected toxicity to

humans and the potential for human exposure to such

substances at facilities on the National Priorities List or at

facilities to which a response to a release or a threatened

release under this section is under consideration.

(B) Within 24 months after October 17, 1986, the

Administrator of ATSDR and the Administrator of EPA shall

revise the list prepared under subparagraph (A). Such

revision shall include, in order of priority, the addition of 100

67a

or more such hazardous substances. In each of the 3

consecutive 12-month periods that follow, the

Administrator of ATSDR and the Administrator of EPA shall

revise, in the same manner as provided in the 2 preceding

sentences, such list to include not fewer than 25 additional

hazardous substances per revision. The Administrator of

ATSDR and the Administrator of EPA shall not less often

than once every year thereafter revise such list to include

additional hazardous substances in accordance with the

criteria in subparagraph (A).

(3) Based on all available information, including

information maintained under paragraph (1)(B) and data

developed and collected on the health effects of hazardous

substances under this paragraph, the Administrator of

ATSDR shall prepare toxicological profiles of each of the

substances listed pursuant to paragraph (2). The

toxicological profiles shall be prepared in accordance with

guidelines developed by the Administrator of ATSDR and

the Administrator of EPA. Such profiles shall include, but not

be limited to each of the following:

(A) An examination, summary, and interpretation of

available toxicological information and epidemiologic

evaluations on a hazardous substance in order to ascertain the

levels of significant human exposure for the substance and

the associated acute, subacute, and chronic health effects.

(B) A determination of whether adequate information on

the health effects of each substance is available or in the

process of development to determine levels of exposure

which present a significant risk to human health of acute,

subacute, and chronic health effects.

testing needed to identify the types or levels of exposure that

may present significant risk of adverse health effects in

humans.

Any toxicological profile or revision thereof shall reflect

the Administrator of ATSDR's assessment of all relevant

toxicological testing which has been peer reviewed. The

68a

profiles required to be prepared under this paragraph for

those hazardous substances listed under subparagraph (A) of

paragraph (2) shall be completed, at a rate of no fewer than

25 per year, within 4 years after October 17, 1986. A profile

required on a substance listed pursuant to subparagraph (B)

of paragraph (2) shall be completed within 3 years after

addition to the list. The profiles prepared under this

paragraph shall be of those substances highest on the list of

priorities under paragraph (2) for which profiles have not

previously been prepared. Profiles required under this

paragraph shall be revised and republished as necessary, but

no less often than once every 3 years. Such profiles shall be

provided to the States and made available to other interested

parties.

(4) The Administrator of the ATSDR shall provide

consultations upon request on health issues relating to

exposure to hazardous or toxic substances, on the basis of

available information, to the Administrator of EPA, State _

officials, and local officials. Such consultations to

individuals may be provided by States under cooperative

agreements established under this chapter.

(5)(A) For each hazardous substance listed pursuant to

paragraph (2), the Administrator of ATSDR (in consultation

with the Administrator of EPA and other agencies and

programs of the Public Health Service) shall assess whether

adequate information on the health effects of such substance

is available. For any such substance for which adequate_

information is not available (or under development), the

Administrator of ATSDR, in cooperation with the Director of

the National Toxicology Program, shall assure the initiation

of a program of research designed to determine the health

effects (and techniques for development of methods to

determine such health effects) of such substance. Where

feasible, such program shall seek to develop methods to

determine the health effects of such substance in combination

with other substances with which it is commonly found.

Before assuring the initiation of such program, the

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Administrator of ATSDR shall consider recommendations

of the Interagency Testing Committee established under

section 4(e) of the Toxic Substances Control Act (15 U.S.C.

2603(e)) on the types of research that should be done. Such

program shall include, to the extent necessary to supplement

existing information, but shall not be limited to -

(i) laboratory and other studies to determine short,

intermediate, and long-term health effects;

(ii) laboratory and other studies to determine organ-

specific, site-specific, and system-specific acute and chronic

toxicity;

(iii) laboratory and other studies to determine the

manner in which such substances are metabolized or to

otherwise develop an understanding of the biokinetics of such

substances; and

(iv) where there is a possibility of obtaining human data,

the collection of such information.

(B) In assessing the need to perform laboratory and other

studies, as required by subparagraph (A), the Administrator

of ATSDR shall consider -

(i) the availability and quality of existing test data

concerning the substance on the suspected health effect in

question;

(ii) the extent to which testing already in progress will,

in a timely fashion, provide data that will be adequate to

support the_preparation of toxicological profiles as required

by paragraph (3); and

(iii) such other scientific and technical factors

This text is long and has been trimmed here. Open the source document for the complete record.

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