Mr. William Bachmann, an electronic technician at Morgan, (Tr. 53),
testified about an extensive mice-infestation problem at the Morgan.
Facility. (Tr. 88). This rodent condition was acknowledged by Robert
Daruk, a career postal executive who is the senior plant manager at
Morgan. (Tr. at 449, 519). Although there is no concrete evidence that
rodents transmit anthrax, (Tr. 179, 335, 369-70), it is obvious that such
a condition is not pleasant and does not add to the physical well-being
of those in the workplace. The Court recognizes that on Thanksgiving
day, November 23, 2001, there is no mail delivery, therefore, this seems
like an appropriate date to exterminate the Morgan Facility to once and
for all eradicate the rodent-infestation problem. Accordingly, I direct
that extermination services be utilized on this day to rid the Morgan
Facility of the mice problem.
Conclusions of Law
The CDC is the federal agency responsible for protecting the public
health of the country by providing leadership and direction in the
prevention and control of diseases. See Mazur v. Merck & Co., 964 F.2d 1348,
1350 n. 1 (3d Cir. 1992). As the D.C. Circuit has advised: "It is not the
court's role to second-guess scientific judgments of" a governmental
agency that is responsible for protecting public health. American Mining
Congress v. EPA, 907 F.2d 1179, 1187 (D.C. Cir. 1990). Indeed, the CDC is
the type of public medical health agency to which courts should defer.
See Tolman v. Doe, 988 F. Supp. 582, 586 (E.D. Va. 1997). The CDC is
entitled to deference, but not an abdication of judicial responsibility.
See American Mining Congress, 907 F.2d at 1187. Here, the CDC has studied
and examined the situation and the status of the anthrax contamination at
Morgan and, therefore, has met "its obligation to engage in reasoned
decisionmaking." Id. The CDC has reached the conclusion that there is no
need to close Morgan. This, as the court said in Christie-Spencer Corp.
v. Hausman Realty Co., Inc., 118 F. Supp.2d 408, 421, 422, "is powerfully
persuasive to the Court of the lack of any need for judicial
interference." I do not have the medical knowledge or expertise to become
a Monday morning quarterback here. The CDC is complying with its
responsibilities under the law. So long as it does so the courts should
not butt in and I decline to do so.
Plaintiffs seek a preliminary injunction against the USPS under
42 U.S.C. § 6972(a)(1)(B), the citizen-suit provision of RCRA,
alleging that the USPS' response to the anthrax contamination has created
an imminent and substantial danger to the public health and the
environment. Congress has waived the federal government's sovereign
immunity for purposes of citizen suits under RCRA by providing that a
suit can be brought against any person, including the United States. See
42 U.S.C. § 6972(a)(1)(B). Therefore, sovereign immunity does not
preclude the plaintiffs from bringing a citizen suit under RCRA against
the Postal Service, a federal agency.
RCRA is a comprehensive environmental statute designed to prevent the
disposal of solid and hazardous wastes in ways that are harmful to the
public health or the environment. See 42 U.S.C. § 6902(a). To that
end, RCRA regulates the generation, handling, treatment, storage,
transportation, and disposal of solid and hazardous wastes. See
42 U.S.C. § 6922-25. By enacting a citizen-suit provision under
RCRA, Congress sought to increase enforcement of this legislation by
authorizing affected citizens to bring suit against any RCRA offender
whose solid waste handling
practices may pose "an imminent and
substantial endangerment to health or to the environment."
42 U.S.C. § 6972(a)(1)(B). See also Connecticut Costal Fishermen's
Ass'n v. Remington Arms Co., 989 F.2d 1305, 1316 (2d Cir. 1993).
Despite the broad scope of the imminent-hazard citizen suit, a court
must be cautious when considering the propriety of preliminary injunction
relief under this provision. See Wilson v. Amoco Corp., 989 F. Supp. 1159,
1172 (D. Wyo. 1998). Indeed, an imminent and substantial danger for
purposes of a RCRA claim does not exist "if the risk of harm is remote in
time, speculative in nature, and de minimis in degree." Id. According to
the CDC, the anthrax contamination at Morgan does not pose a danger to
employees or the community because, by mid-October, any danger had
dissipated due to the passage of time. Also, the CDC found significant
the fact that, thankfully, no postal worker in New York has fallen ill
due to anthrax exposure. Therefore, this Court, defers to the CDC and,
concludes that because the USPS implemented the CDC's recommended
actions, including providing prophylactic antibiotic treatment, issuing
protective gear to workers and sanitizing the affected areas, USPS'
response to the anthrax contamination poses no imminent and substantial
danger to the public or the environment.
The USPS argues that because anthrax does not constitute "a solid
waste" under RCRA, that Act does not apply here. The Court, however, sees
no need to decide this issue in view of the fact that there is no
imminent and substantial danger present.
B. Public Nuisance Cause of Action
In its opposition papers, the USPS argues that sovereign immunity bars
the Plaintiffs' public nuisance cause of action. The public nuisance
claim centers on allegations that "actions and omissions of the USPS with
respect to the handling of anthrax have created a public nuisance because
of the potential exposure of the general public to a deadly bacteria"
Comp. at ¶ 84. The USPS argues that the Court should consider this
theory relative to the injunction, even though the plaintiffs have not
urged it on the injunction aspect of the case.
Congress has waived the Postal Services' sovereign immunity by
providing that the Postal Service may "sue or be sued."
39 U.S.C. § 401(1). But the scope of the waiver under Section 401(1)
is limited with respect to tort claims. Specifically, Section 409(c)
limits the Section 401(1) waiver by providing, in essence, that any tort
claim against the Postal Service is subject to the remedies and
restrictions of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346,
2671 et seq.r See 39 U.S.C. § 409(c) ("[The FTCA] shall apply to tort
claims arising out of the activities of the Postal Services."); see also
Pereira v. United States Postal Serv., 964 F.2d 873, 876 (9th Cir.
1992); Active Fire Sprinkler Corp. v. United States Postal Serv.,
811 F.2d 747, 753 (2d Cir. 1987)
Money damages are the only form of relief permitted under the FTCA. See
Birnbaum v. United States, 588 F.2d 319, 355 (2d Cir. 1978); Rufu v.
United States, 876 F. Supp. 400, 406 (E.D.N.Y. 1994). Accordingly,
Congress has not waived the government's sovereign immunity for tort
claims, like the plaintiffs' public nuisance claim, that seek injunctive
relief against the USPS. As such, the circumstances here mean that
injunctive relief is not appropriate based on a public nuisance theory.
The application for a preliminary injunction is denied, but the Court
directs that on November 26, 2001 by 1:00 P.M., I and the plaintiffs'
counsel be supplied with a detailed report from the Government as to the
then-existing status of the anthrax condition at Morgan as well as the
clean-up. Should the status quo change between now and November 26,
2001, the Court is to be advised immediately.
A status conference is set for December 7, 2001 at 10:00 A.M.