ELR Citation: ELR 20730
No(s). s. CS-93-0245-AAM, -0290-AAM (E.D. Wash. Dec 23, 1993)

The court holds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(h)'s timing-of-review provision bars citizen suits challenging the Agency for Toxic Substances and Disease Registry's (ATSDR's) alleged failure to perform a final health assessment for the Hanford Nuclear Reservation Superfund site in Washington and initiate a medical monitoring program for exposed persons near the site. The court holds that ATSDR's health-related activities at the site are removal actions under CERCLA §104 and that the citizen suits constitute challenges to removal action within the meaning of §113(h). If granted, the requested relief would interfere with ATSDR's removal activities. Moreover, the ATSDR's completion of a health assessment is not a distinct stage of the removal action subject to judicial review. Thus, the court lacks subject matter jurisdiction over the suits. The court holds that §113(h)'s bar also prevails over CERCLA §310's policy of allowing judicial review of the ATSDR's failure to perform a nondiscretionary duty, because Congress specifically conditioned such causes of action on compliance with §113(h). Moreover, under §113(h)(4), no cause of action lies under CERCLA's citizen suit provision until the challenged removal action has been taken. The court rejects plaintiffs' contention that §113(h) should be read to bar only challenges based on alleged monetary or property damages. The court holds that §113(h) does not confer jurisdiction over strictly health-related claims unless the claims fall within the provision's enumerated exceptions. Finally, the court denies as moot the government's motion for a protective order in one of the suits.

Counsel for Plaintiffs
Tom H. Foulds
Tom H. Foulds & Associates
703 6th Ave. N., Seattle WA 98109
(206) 285-8390

Counsel for Defendants
Nancy M. Oreskovich
Davenport Hotel
808 W. Sprague St., Spokane WA 99204
(509) 455-9990