ELR Citation: ELR 21380
No(s). 1:90-cv-2105-ODE (N.D. Ga. May 3, 1991)

The court dismisses a challenge by owners and operators of a hazardous waste disposal facility to a health assessment of the site prepared by the Agency for Toxic Substances and Disease Registry (ATSDR) pursuant to §104 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that it lacks subject matter jurisdiction to review the health assessment because CERCLA §113(h) provides that federal courts do not have subject matter jurisdiction for preenforcement reviews of Environmental Protection Agency removal actions pursuant to CERCLA §104. The relevant statutory language clearly indicates that the definition of "removal" encompasses the preparation of health assessments. Further, the statute makes plain that health assessments are an integral part of a series of regulatory measures that Congress desires to proceed unhindered up to a certain point. Turning to the plaintiffs' due process claim that ATSDR failed to provide adequate notice of the public comment period for the health assessment, the court holds that the notice rules of the Administrative Procedure Act (APA) do not apply in this case, because there is nothing in the health assessment, CERCLA §104, or the APA's definition of "rule" that implicates APA notice requirements. The health assessment merely reaches tentative conclusions and makes recommendations for future public health measures. It does not alter existing law or official policies, does not impose or relieve regulatory burdens on plaintiffs, and does not mandate future action. Applying the District of Columbia Circuit's holding in Industrial Safety Equipment Assoc. v. Environmental Protection Agency, 18 ELR 20598, the court next holds that ATSDR's method of notice did not deprive the plaintiffs of a constitutionally protected liberty or property interest. To the extent that plaintiffs claim to have been deprived of a property interest in their business reputation, there is no cognizable property interest at stake here. Plaintiffs have neither argued nor alleged the existence of any tangible harm, or a loss of a protected right or tangible interest in addition to a harm, to business reputation. To the extent that plaintiffs allege that their business property decreased in value, due to the tentative conclusions and recommendations contained in the health assessment, such allegations are insufficient to show a cognizable deprivation. Finally, the court holds that the agency's statutory duties to assess the dangers of potentially hazardous sites and protect public health far outweigh the speculative injury to property value that plaintiffs allege.

Counsel for Plaintiffs
John A. Sherrill, Terrence McQuade
Glass, McCullough, Sherrill & Harrold
1409 Peachtree St. NE, Atlanta GA 30309
(404) 885-1500

Donn H. Wray, George M. Plews
Pendygraft, Plews & Shadley
1346 N. Delaware St., Indianapolis IN 46202
(317) 637-0700

Counsel for Defendant
Daniel A. Caldwell III, Ass't U.S. Attorney
1800 U.S. Courthouse, 75 Spring St. SW, Atlanta GA 30335
(404) 331-4216

Daniel S. Goodman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000