Home » Case Summaries » 1995 » Hanford Downwinders Coalition, Inc. v. Dowdle


Hanford Downwinders Coalition, Inc. v. Dowdle



A citizens’ action group, the Hanford Downwinders Coalition (HDC), filed suit asking that the Agency for Toxic Substances and Disease Registry (ATSDR) begin health surveillance testing on the population surrounding Hanford Nuclear Reservation (Hanford). The Ninth Circuit held that the ATSDR health surveillance program is within the definition of “removal action” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and, therefore, a court challenge to the program is prohibited.

HDC claimed CERCLA mandated the implementation of a health surveillance program in the region surrounding Hanford. ATSDR moved for summary judgment, claiming the federal courts do not have jurisdiction over challenges to “removal actions” under CERCLA. The district court granted the motion. HDC appealed, claiming the health surveillance program was not a “removal action,” its action was not a “challenge,” and the health surveillance program was required at Hanford. Because CERCLA section 113(h)[1] protects only discretionary actions, HDC argued, it was inapplicable. In addition, HDC argued that its suit qualified for the citizen suit exception and that its due process rights had been violated.

Congress enacted CERCLA to facilitate cleanup of hazardous waste sites. Section 113(h) protects “removal or remedial actions” from the scope of federal jurisdiction. These actions–primarily ongoing cleanup activities–ensure cleanup efforts will not be delayed by litigation. ATSDR has the responsibility to ensure CERCLA’s health-related requirements are met. The decision to implement a health surveillance program for the area surrounding a hazardous waste site is at the discretion of the ATSDR Administrator.

The Ninth Circuit found that the plain language and purpose of CERCLA support the conclusion that ATDSR’s health surveillance activities are “removal actions.” “Removal actions” are those actions necessary to protect the public health from any fallout from the hazardous waste site. ATDSR’s health surveillance programs are a necessary part of protecting the public health at these sites. Overall, the classification of ATSDR’s health surveillance activities as “removal actions” is consistent with the remedial nature of CERCLA. Protection of the public health is one of the primary remedial goals of CERCLA.

HDC argued that even if ATSDR authority is protected, it was not challenging ATSDR activity. HDC’s claim was for injunctive relief. However, Ninth Circuit precedent supports the notion that any lawsuit directly related to cleanup goals constitutes a challenge. HDC then argued that the ATSDR health surveillance program is mandated. The Ninth Circuit held the plain language of CERCLA indicates the ATSDR Administrator is required to initiate a health surveillance program only when there is a significant increased health risk to the population surrounding a site; therefore, determination of the existence of such risk is at the Administrator’s discretion.

Section 113(h) contains an exception for citizen suits involving actions already taken by the government. The Ninth Circuit determined ATSDR’s activities at Hanford cannot be separated from the ongoing cleanup. Therefore, ATSDR’s action has not yet been taken. The Ninth Circuit affirmed the district court’s application of section 113(h) to HDC’s suit.

HDC then contended that application of section 113(h) violated due process. The Ninth Circuit reasoned that while it may be true this section may delay and even prevent plaintiffs from having their day in court, the court presumes Congress has balanced that factor against the need to expedite cleanup activities. The court held the best interests of the public are served by allowing CERCLA cleanups to proceed without even well-intentioned interruption. The decision of the district court was affirmed.

[1]42 U.S.C. § 9613(h) (1994

Print this pageEmail this to someoneTweet about this on TwitterShare on Facebook

Comments are closed

Sorry, but you cannot leave a comment for this post.