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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 1133

## Text

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 |
AND ITS OPINION IS CONTRARY TO OTHER NINTH

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APPENDIX

ern e CRF UITD tistineiecicascersccterecssnvevsesseoersovesene 34a
EPA LETTER TO ATSDR DATED JULY 2, 1999............ 100a
EXCERPTS FROM TRANSCRIPTS ...cccccccosccecvcescocevecccscoeees 103a
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iV
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

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

STATUTES
pS AR DS | RRR ROR a ecto ea a eT CP ER NOE |
A RRS REPRE eey arene eee on eee maT See BH era E TA 2
Ge Riis Se retaibtetibiianiaiiiindaimnsierteeaiaitiinantei sciagisatiie 2
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).

2

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

3

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

4

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.

5

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

6

(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).

7

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.

8

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

9

(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

10

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

11

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

la
No. 99-35581

UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT

TRISHA T. PRITIKIN,
Plaintiff-Appellant, ©

V.

DEPARTMENT OF ENERGY, JOHN D. WAGONER, in
his official capacity as manager of DOE Richland
Operations, and SPENCER ABRAHAM, ' 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

2a

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,

3a

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

4a

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

5a

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

6a

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

7a

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).

8a

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

9a

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.

(c) Relief

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,
v.

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.

20a

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

2la

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

22a

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.

23a

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

24a

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.

(c) Relief

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

3la

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.

32a

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.
(c) Federal Agency Hazardous Waste Compliance Docket
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

37a
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.

(C) Arrangements for long-term operation and

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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.

(C) A brief summary of the public comments regarding
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

42a

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

43a

subparagraph (A)(ii) that has not been taken on the date of
the lease.
(C) Deferral
(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0913%3A1. Public record. Not legal advice.