ELR Citation: ELR 21272
No(s). 94-35371 (9th Cir. Jul 5, 1995)

The court holds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(h) does not preclude judicial review of class-action plaintiffs' tort claims for medical monitoring against companies that are potentially liable for plutonium contamination at the Hanford Nuclear Reservation Superfund site in Yakima County, Washington. The court holds that although the Agency for Toxic Substances and Disease Registry (ATSDR) is conducting health-related activities at the site, plaintiffs' medical monitoring claims do not challenge any federal removal or remedial action. The ATSDR is only required to administer a medical monitoring program if it determines that there is a significantly increased risk for an affected population, and it has yet to undertake any medical monitoring activities anywhere in the country. In addition, Congress has not required potentially injured parties to rely on the ATSDR's activities, CERCLA contains no reference to recovering personal medical expenses, and the government can recover under §104(i)(9) costs the ATSDR incurs at a site. The court, therefore, holds that medical monitoring costs are not "response" costs under CERCLA, which is critical to plaintiffs' claims because CERCLA defines "response" as a removal or remedial action. The court also holds that the district court properly consolidated this case with the other class actions involving the Hanford site.

Counsel for Plaintiffs
Merrill G. Davidoff
Berger & Montague
1622 Locust St., Philadelphia PA 19103
(215) 875-3000

Counsel for Defendants
David M. Bernick
Kirkland & Ellis
200 E. Randolph Dr., Chicago IL 60601
(312) 861-2000

Before: Skopil, Ferguson, and Thompson, JJ.