October 8, 1998

JUSTICE DEPARTMENT ARGUES SOVEREIGN IMMUNITY IN HANFORD MEDICAL MONITORING CASE

Tim Connor
NW Environmental Education Foundation

In Federal District Court in Spokane, Wednesday, the Justice Department argued that Trisha Pritikin's suit against the U.S. Department of Energy should be dismissed because the government has not waived its right of sovereign immunity to allow itself to be sued in such actions. Although sovereign immunity has been the standard first defense of the government in class action and personal injury suits brought by citizens exposed to radiation from weapons testing and other federal activities, this, apparently, is the first time the Justice Department has argued that sovereign immunity also protects agencies from citizen suits brought under Superfund and other environmental protection laws.

"The court doesn't have the authority with sovereign immunity to substitute its judgment for that of the Department of Energy as to what constitutes a sufficient request or attempt to obtain funds {for the medical monitoring program}," Justice Department attorney Robert Foster argued before Judge Edward Shea.

Pritikin's attorney Tom Foulds countered by noting there is, in fact, a specific waiver of sovereign immunity in the Federal Facilities portion of the Superfund law that was put there by Congress in the 1986 CERCLA amendments. He also noted language in Congressional appopriations reports where Congress stipulates that funding for programs like the Hanford Medical Monitoring Program should be specifically detailed in federal budget requests submitted by the Department of Energy. Despite the fact that the Hanford Medical Monitoring Program was approved by the Administrator of ATSDR in March of 1997, DOE has yet to reach an interagency agreement with ATSDR, or submit a funding request for the medical monitoring activities. (It did, for a time, seek to reprogram approximately $5 million, after it learned of the filing of the Pritikin suit).

Despite the overwhelming evidence that DOE has openly fought an IAG that includes funding for HMMP and has refused to put any money in its budget requests to Congress, the Justice Department is saying that--for purposes of the law--this resistance doesn't matter: DOE has the discretion to seek (or not seek) funding however it chooses.

Another interesting (and bizarre) element of Foster's argument on behalf of DOJ was his contention that Pritikin's suit really isn't about access to medical monitoring. The suit, he says, is about DOE's alleged obligation to seek funding for medical monitoring. And on that issue, he asked the court: "Is there a statutorily enforceable duty {to seek funding}? I submit there is not." Later, he said, "If there is an unambiguous duty it is to ATSDR."

So, basically, what DOJ argued is that ATSDR does indeed have a statutory obligation under Superfund to provide access to medical monitoring for exposed populations where such a response is required under CERCLA. It's just that DOE has no statutory obligation to actually seek the funds necessary for ATSDR to provide the service.

Judge Shea did not at all appear comfortable hearing this case and noted, at one point, that it was his first Hanford radiation case. He wondered aloud how it had been assigned to him given that Judge Alan McDonald (the same judge who, just a couple weeks ago, tossed scores of downwinders out of court in the personal injury litigation) has been handling the Hanford radiation cases. Shea said he would decide within the next week whether he would rule on the DOE/DOJ motion to dismiss or send the case to Judge McDonald. A fine and fuller account of yesterday's oral arguments can be read in Karen Dorn Steele's article in the Spokane Spokesman-Review. I had hoped to download it from the S-R website and attach it, but the S-R web page was malfunctioning this morning. If you'd like to try yourself, go to www.spokane.net and look for the story under "Regional News."