Full opinion text
REVISED MEMORANDUM AND ORDER RE DEFENDANTS’ MOTIONS TO DISMISS McDONALD, District Judge. On April 19, 1991, and pursuant to prior orders of the court, the plaintiffs, past and present residents of and/or owners of property in the area surrounding the Hanford Nuclear Reservation, jointly filed a Consolidated Complaint “for redress for present and threatened future injuries resulting from Defendants’ wrongdoing in the generation, storage, and use of vast quantities of radioactive and non-radioactive hazardous substances at [Hanford] and the release of those substances into the environment” (Ct.Rec. 15 at 2, U l). Named as defendants are certain “past and present operators of the Hanford facility” (Pretrial Order No. 1, Ct.Rec. 1 at 3): E.I. DuPont de Nemours and Company (“DuPont”); General Electric Company (“GE”); UNC Nuclear Industries, Inc. (“UNC”, a.k.a. United Nuclear Industries, Inc.), its predecessors and successors; Atlantic Richfield Company (“ARCO”) and Atlantic Richfield-Han-ford Company (“ARCO-Hanford”); Rockwell International Corporation (“Rockwell”); and Westinghouse Hanford Company (“Westinghouse Hanford”) and Westinghouse Electric Company (“Westinghouse”). Subject-matter jurisdiction over the plaintiffs’ claims, which allegedly arise under the Price-Anderson Act, CERCLA, and applicable state law, as well as under the Declaratory Judgment Act (28 U.S.C. § 2201), is purportedly founded on “28 U.S.C. § 1331 [federal question], the Price Anderson Act, 42 U.S.C. § 2210(n)(2), and principles of pendent jurisdiction” (id. at 3-4, If 3). Venue in the Eastern District of Washington is predicated on 28 U.S.C. § 1391; 42 U.S.C. § 2210(n)(2); and 42 U.S.C. § 9613(b). Among those forms of relief requested by the plaintiffs are compensatory and punitive damages; a fund for providing general medical monitoring, as well as certain other declaratory and injunctive relief; an award of interest, where applicable; and an award of attorney’s fees and costs. On June 19, 1991, and also in accordance with prior court orders, the defendants jointly filed nine motions to dismiss certain portions of the Consolidated Complaint pursuant Fed.R.Civ.P. 12. Those nine motions are as follows: 1. Motion to Dismiss Claims for Abatement and Remediation (Ct.Rec. 48). 2. Motion to Dismiss or, Alternatively, to Stay Claim for “Medical Surveillance Relief” (Ct.Rec. 50). 3. Motion to Dismiss Claims for Recovery of Response Costs Under CERC-LA (Ct.Rec. 52). 4. Motion to Dismiss Plaintiffs’ Requests for Disclosure (Ct.Rec. 54). 5. Motion to Dismiss Plaintiffs’ Claims for Punitive Damages (Ct.Rec. 56). 6. Motion to Dismiss Plaintiffs’ Claims for Negligence Per Se, Misrepresentation and Concealment, Outrage, Public Nuisance, Intentional Trespass and Private Nuisance (Ct.Rec. 58). 7. Defendants UNC Nuclear Industries, Inc., Atlantic Richfield Hanford Company, Atlantic Richfield Company, Rockwell International Corporation, Westinghouse Hanford Company, and Westinghouse Electric’s Motion to Dismiss: A) The Claims of Plaintiffs Priti-kin, Hurley, Neal, McCauley, Russell, Boyd, Campbell, Hopper, and the Cris-well class; and B) The Personal Injury Claims of Plaintiffs Payne, Ferguson, Clark, Daschbach, and Dennis (Ct.Rec. 60). 8. Motion to Dismiss the Hanford Downwinders Coalition as a Plaintiff and Class Representative (Ct.Rec. 62). 9. Motion to Dismiss or for a More Definite Statement (Ct.Rec. 64). See also Overview to Defendants’ Motions to Dismiss (Ct.Rec. 47); Appendix to Defendants’ Motions to Dismiss (Ct.Rec. 66). A hearing was held for the purpose of receiving argument on the defendants’ motions on October 3, 1991 in Spokane, Washington. Speaking on behalf of the defendants were William R. Squires, III; Keith Gerrard; James R. Moore; Robert S. Warren; and Franklin D. Kramer. Offering argument for the plaintiffs were Merrill G. Davidoff; Arnold C. Lakind; Howard J. Sedran; John J. Cummings, III; Federico Castelan Sayre; and Tom H. Foulds. Numerous other counsel for both the plaintiffs and the defendants were also in attendance. Upon consideration of the record and the law relating thereto, and for the reasons that follow, the court finds that those claims of the plaintiffs based on CERCLA, for the disclosure of certain information and for punitive damages must be dismissed, as must the Hanford Downwinders Coalition as a party, but that the remainder of the defendants’ motions must be denied. I. A. Motion to Dismiss Claims for Abatement and Remediation The defendants first seek the dismissal of the plaintiffs’ claims for “abatement and remediation” pursuant to Fed. R.Civ.P. 12(b)(1) (“lack of jurisdiction over the subject matter”) and/or 12(b)(6) (“failure to state a claim upon which relief can be granted”) (Ct.Rec. 48). More specifically, the defendants urge the dismissal of that portion of the Consolidated Complaint in which the plaintiffs seek injunctive relief in the form of an order directing the abatement of the risks allegedly imposed by the underground storage of certain radioactive and non-radioactive hazardous substances on the Hanford site (see Ct.Rec. 15 at 80). The defendants argue first that CERCLA section 113(h) (42 U.S.C.A. § 9613(h) (Supp. 1991)) deprives this court of jurisdiction over such “claims” due to the fact that “federal and state regulatory authorities have [already reached an agreement] on a remedial program for Hanford-related waste” (Ct.Rec. 49 at 1). In addition, the defendants argue that due to the existence of a general CERCLA “federal facility cleanup scheme,” a scheme which “constitutes the exclusive means for cleanup of the [Hanford] site,” any claims pertaining to the same, which purportedly are founded on state law, are “preempted” as a matter of federal law {ibid.). The plaintiffs, of course, disagree with both of these assessments. A motion to dismiss made pursuant to Rule 12(b)(1), like other motions made pursuant to this subdivision, entitles the plaintiffs to a deferential standard of review. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Under that standard, the court is required to construe the complaint (or any claim contained therein) in the light most favorable to the plaintiffs, and all allegations are to be regarded as true. Id. CERCLA, 42 U.S.C. § 9601 et seq., was enacted to “ ‘provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites.’ ” 3550 Stevens Creek Associates v. Barclays Bank of California, 915 F.2d 1355, 1357 (9th Cir.1990) (quoting Pub.L. No. 96-510, 94 Stat. 2767 (1980)). The statutory framework established under CERCLA for the cleanup of a federal facility (such as Hanford) is complex; see, e.g., Werlein v. United States, 746 F.Supp. 887, 891-92 (D.Minn.1990). Simply stated, the process is predominantly governmental, and is commenced by the taking of certain actions by the President or (pursuant to Executive Order 12580) certain designated agencies (see 42 U.S.C.A. § 9604), and is conducted primarily through agreements reached between the Environmental Protection Agency (“EPA”) and the responsible departments) or agency(ies) (here, DOE) with the participation of interested state and local officials and following the presentation of opportunities for public comment (see 42 U.S.C.A. § 9620 (“Federal facilities”)). See generally 1A Frank P. Grad, Treatise on Environmental Law § 4A.02 (1990). It is against this background that Congress enacted section 113(h). That subsection (codified at 42 U.S.C.A. § 9613(h)— “Timing of review”) states in relevant part: No Federal court shall have jurisdiction ... to review any challenges to removal or remedial action selected under section 9604 of this title [ (“Response authorities”) ], or to review any order issued under section 9606(a) of this title [(“Abatement actions”)], in any action except one of the following: (4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site. See also § 9659(h) (“This chapter does not affect or otherwise impair the rights of any person under Federal, State, or common law, except with respect to the timing of review as provided in section 9613(h) of this title or as otherwise provided in section 9658 of this title (relating to actions under State law [for damages for injuries to persons or property])” (emphasis supplied)). The purpose of these provisions, which again permit the commencement of a citizen suit only where “removal or remedial action” has been either “taken” or “secured,” is fairly self-evident: because “pre-enforcement [and pre-implementation] review would lead to considerable delay in providing cleanups, increase response costs and discourage settlements and voluntary cleanups” (H.R.Rep. No. 253(1), 99th Cong., 2d Sess. 139 (1986), reprinted in 1986 U.S.C.C.A.N. 2835, 2921), “there is [to be] no right of judicial review of the Administrator’s selection and implementation of response actions until after the response action [sic] have been completed to their completion” (H.R.Rep. No. 253(1) at 81, 1986 U.S.C.C.A.N. at 2863). See also 3 S. Cooke, The Law of Hazardous Waste: Management, Cleanup, Liability and Litigation § 16.03[1] at 16-82 to 16-83 (1991) (“Citizen suits were not, however, designed to diminish the government’s primary role in the environmental field, but only to supplement that role when the government failed to act.”). Thus, in the specific context of the cleanup of a federal facility pursuant to § 9620, it has been held that § 9613(h) generally deprives a federal district court of subject-matter jurisdiction to entertain any claims directly related to such cleanup efforts (or “response actions”) until such actions have actually been completed. Werlein, 746 F.Supp. at 891-895. Accord Barmet Aluminum Corp. v. Reilly, 927 F.2d 289 (6th Cir.1991); Boarhead Corp. v. Erickson, 923 F.2d 1011 (3rd Cir.1991); Schalk v. Reilly, 900 F.2d 1091 (7th Cir.), cert. denied, — U.S. -, 111 S.Ct. 509, 112 L.Ed.2d 521 (1990); Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380 (5th Cir.1989); Alabama v. EPA, 871 F.2d 1548 (11th Cir.), cert. denied, 493 U.S. 991, 110 S.Ct. 538, 107 L.Ed.2d 535 (1989). See also 3 Cooke, supra, § 16.03[4] at 16-130, n. 204 (“This provision [§ 9613(h)] is essentially a timing provision intended to prevent pre-enforcement review of EPA’s cleanups.”). The relevant inquiry here is thus whether, as to the Hanford site, any response actions, though perhaps not yet completed, are currently being directed specifically at the underground storage of hazardous wastes and accordingly within the scope of these provisions. The court finds that the efforts of EPA, DOE and the Washington State Department of Ecology, efforts which have resulted in the formulation and implementation of a Hanford Federal Facility Agreement (“FFA”) and Action Plan for the cleanup of the Hanford site (as well as the area surrounding the Hanford site), represent precisely such actions, thus foreclosing, at least for the time being, any judicial review thereof. In reaching this conclusion, the court feels obliged to address at least three of the arguments asserted by the plaintiffs in opposition. The plaintiffs argue first that the abatement and remediation relief sought in this action is, in actuality, collateral to those actions being taken by the parties to the FFA, and therefore is not subject to the § 9613(h) jurisdictional bar. But the plaintiffs’ characterization of these claims notwithstanding, it seems to the court that the attainment of that which the plaintiffs seek would, to some extent, ultimately require some form of “pre-completion” judicial interference in the government’s cleanup efforts — which is precisely the type of interference expressly proscribed by § 9613(h). The timing of review section is intended to be comprehensive. It covers all lawsuits, under any authority, concerning the response actions that are performed by the EPA.... The section also covers all issues that could be construed as a challenge to the response, and limits those challenges to the opportunities specifically set forth in the section.... Werlein, 746 F.Supp. at 894 (quoting 132 Cong.Rec. S14929 (daily ed. Oct. 3, 1986) (statement of Sen. Thurmond)) (emphasis supplied by the Werlein court). Indeed, to the extent the plaintiffs seek abatement and remediation relief from those persons who are actually empowered to provide it— a group which does not include the defendants — claims functionally equivalent to those the plaintiffs purportedly seek to avoid are, by necessity, implicated. As aptly summarized by the defendants, “the [plaintiffs’] desire to modify the FFA lies at the very heart of the complaint, for plaintiffs would never have sought an injunction if they believed that the Action Plan adequately addressed tank waste— there would be no reason to sue, and plaintiffs identify none” (Ct.Rec. 127 at 12). The plaintiffs next argue that even if the court were to find the consideration of their abatement and remediation claims barred by § 9613(h) generally, the court could nevertheless retain jurisdiction “to determine challenges to any completed segments of the cleanup plan” (Ct.Rec. 117, tab 3 at 18). Support for this position is derived from certain dicta contained in Werlein, 746 F.Supp. at 894-95, and in Neighborhood Toxic Cleanup Emergency v. Reilly, 716 F.Supp. 828, 833-34 (D.N.J.1989), cases which, in turn, make reference to a passage from the Joint Conference Committee Report accompanying the 1986 amendment to § 9613, which states: In a new section 113(h)(4) of the substitute, the phrase “removal or remedial action taken” is not intended to preclude judicial review until the total response action is finished if the response action proceeds in distinct and separate stages. Rather an action under section 310 [42 U.S.C. § 9659] would lie following completion of each distinct and separable phase of the cleanup. Werlein, supra (quoting H.R.Conf.Rep. No. 962, 99th Cong., 2d Sess. 224 (1986), reprinted in 1986 U.S.C.C.A.N. 3276, 3317). Of course, whether, if confronted with the question, this court would adopt a similar reading of this provision — a reading which, despite whatever practical appeal it might possess, is unsupported by the statute itself and appears clearly contrary to those several portions of the legislative record (see discussion supra) which seemingly say exactly the opposite — is a matter far from certain. But this is a question it presently need not reach, as nowhere do the plaintiffs even remotely suggest that any “stage” or “phase” of the Hanford cleanup (assuming, for this purpose, such even exist) has yet reached any level of completion. The plaintiffs finally argue that the defendants’ motion with respect to abatement and remediation is premature — that it should not be brought at this juncture, but rather at the conclusion of this proceeding, when the court will “be in a better position to evaluate the arguments concerning [the sufficiency of] the government’s cleanup effort” (Ct.Rec. 117, tab 3 at 31). But here again the plaintiffs lose sight of the fact that any such claims, whenever asserted, may only be asserted in accordance with § 9613(h). Thus, while the plaintiffs might well be able to assert such claims at some later point in time, in the absence of some other basis for subject-matter jurisdiction, it surely prevents their assertion in advance. “If jurisdiction is lacking at the outset, the district court has ‘no power to do anything with the case except dismiss.’ ” Morongo Band of Mission Indians v. California State Board of Equalization, 858 F.2d 1376, 1380 (9th Cir.1988) (quoting 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3844 at 332 (1986)), cert. denied sub nom. Miller v. Morongo Band of Mission Indians, 488 U.S. 1006, 109 S.Ct. 787, 102 L.Ed.2d 779 (1989). Where subject-matter jurisdiction is challenged pursuant to Rule 12(b)(1), the burden of proof is on the party seeking to assert such jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942). While the plaintiffs might be dissatisfied with the progress being made by those agencies charged with the cleanup of the Hanford site — a matter of grave concern to all residents of the Pacific Northwest — this court must recognize that Congress has seen fit to severely limit judicial interference into matters of this nature, at least until they have been permitted to run their course. (The court would add that it finds this to be a sensible approach, for it considers itself ill-equipped to fashion a superior remedy.) Thus, however great the temptation to second-guess those actions taken by the responsible authorities, or to be critical of the speed with which they carry them out, the court finds that the plaintiffs have failed to demonstrate that jurisdiction exists as to claims of this nature. Accordingly, those claims which “would necessarily require this Court’s review of the ongoing federal-state abatement and remediation effort to determine whether it deals adequately with the problems that plaintiffs identify” (Defendants’ Reply, Ct.Rec. 127 at 12) must be dismissed, without prejudice, for lack of subject-matter jurisdiction. B. Motion to Dismiss or, Alternatively, to Stay Claim for “Medical Surveillance Relief ’ The defendants here seek the dismissal (pursuant to Fed.R.Civ.P. 12(b)(6)) or, in the alternative, the stay what they characterize as the plaintiffs’ “claim” for those forms of relief generally referred to as “medical monitoring and surveillance” (Ct.Rec. 50), which, though referred to throughout the Consolidated Complaint, may be generally described as that which includes “medical testing, preventive screening and independent scientific studies to quantify the adverse health effects of the releases of radioactive, toxic and hazardous substances [in order] to take preventive action [and] to obtain early warning to facilitate the treatment of disease,” and “[m]edical surveillance to help determine the extent of the environmental damage and to monitor the environmental health effects of Defendants’ activities” (Ct.Rec. 15 at 43-44, subparagraphs i and ii). Thus defined, the court would indicate as a preliminary matter that it regards claims in the nature of those sought (see, e.g., In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829, 852 (3rd Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1584, 113 L.Ed.2d 649 (1991)) as being eminently sensible in this, a toxic tort context, and fully within the purview of that state’s law (Washington — see discussion, part E infra) which, where applicable, is controlling. But whether the plaintiffs have pleaded allegations sufficient to survive a motion to dismiss pursuant to Rule 12(b)(6) is yet another question this court need not reach, as it finds that the claims encompassed by these allegations may be more properly addressed — and disposed of — pursuant, again, to Rule 12(b)(1). Although normally thought of solely in terms of its role in the cleanup of hazardous materials, CERCLA also includes among its primary concerns those adverse health effects posed by the release of any such materials. See 42 U.S.C.A. § 9604(a)(1) (Supp.1991) (“Whenever ... any hazardous substance is released ..., the President is authorized to act, consistent with the national contingency plan, to ... take any ... response measure ... which the President deems necessary to protect the public health or welfare....”); see also § 9607(a)(4)(D) (noting liability under CERCLA includes “the costs of any health assessment or health effects study carried out under section 9604(i)”); § 9621(b)(1) (describing the factors, including those related to human health, that are to be considered in assessing alternative remedial actions). Indeed, § 9604(a)(1) expressly states that “primary attention” is to be given those releases “which the President deems may present a public health threat.” Among those provisions enacted to assist in the effectuation of this policy is § 9604(i), which establishes and describes the duties of the Agency for Toxic Substances and Disease Registry (ATSDR). Included within this subsection is a comprehensive scheme directed specifically at determining the health effects of those hazardous material releases falling within its scope (see, e.g., § 9604(i)((6)(G), which describes the purposes behind the performance of “health assessments” as that term is defined in subparagraph (F))), including those relating to a federal facility (see § 9604(i)(17)). See generally Barry L. Johnson, Health Effects of Hazardous Waste: The Expanding Functions of the Agency for Toxic Substances and Disease Registry, 18 Envtl.L.Rep. 10,132 (1988); Martin R. Siegel, Integrating Public Health Into Superfund: What Has Been the Impact of the Agency for Toxic Substances and Disease Registry?, 20 Envtl. L.Rep. 10,013 (1990). The specific components of an ATSDR health assessment study, as explained by Senator Stafford, Chairman of the Senate Committee on Environment and Public Works in his introductory comments to the 1986 amendments to CERCLA, include the following: [F]irst, information necessary to ascertain the magnitude, scope, and duration of the exposure of individuals to the hazardous substance or substances at issue, including the source and degree of ground or surface water contamination, air emissions and food chain contamination; second, an identification of all those in the community who might be exposed to the release of hazardous substances; third, toxicological and epidemiological evaluations of the impact of the exposure on affected individuals; and fourth, any other necessary medical testing of individuals. 132 Cong.Rec. S14,897 (daily ed. Oct. 3, 1986) (as quoted in Ambrogi v. Gould, Inc., 750 F.Supp. 1233, 1249 n. 21 (M.D.Pa.1990)). See also 42 C.F.R. subch. H (“Health Assessments and Health Effects Studies of Hazardous Substances Releases and Facilities”); Jeffrey M. Gaba & Mary E. Kelly, The Citizen Suit Provision of CERCLA: A Sheep in Wolfs Clothing?, 43 Sw.L.J. 929, 943-945 (1990). As aptly summarized by the defendants, § 9604(i) reflects the congressional intent that ATSDR is to be (1) the focal point for marshalling the best available scientific evidence on the health effects of exposures to hazardous substances at CERC-LA sites and (2) the decision maker as to whether relief in the form of medical surveillance or other remedial measures should be afforded as part of the CERC-LA process. Ct.Rec. 51 at 5. As noted in part A supra, § 9613(h) deprives federal courts of subject-matter jurisdiction in actions “to review any challenges to removal or remedial action selected under section 9604.” The term “removal” is defined at § 9601(23) as including “the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare ... which may otherwise result from a release [of a hazardous substance].” Thus, for the same reasons this court found that it may not entertain a challenge to an untaken or unsecured § 9604 cleanup action, it likewise finds (apparently as a matter of first impression) that it also may not entertain a challenge to those “health surveillance program^]” to be carried out by ATSDR in connection with a federal facility and pursuant to this same authority. And here, given the obvious similarities between that medical surveillance relief requested and those programs which may be implemented by ATSDR (compare those portions of the Consolidated Complaint discussed supra with § 9604(i)); that certain programs of this nature have, in fact, been initiated {see FFA at 16, ¶ C; Memorandum of Understanding between ATSDR and DOE, Ct. Rec. 66 at tab 13; Interagency Agreement, Ct.Rec. 128 at tab D); and that any such relief, if awarded, would ultimately be funded by DOE as indemnitor, it seems to the court that the plaintiffs’ claims are tantamount to precisely such a challenge. Thus, as with the plaintiffs’ claims for abatement and remediation, determinations (at least to the extent they are governmen-tally-funded) as to the health effects of releases of hazardous substances from the Hanford site — a complicated problem whose solution seems to this court to be almost inherently quasi-political — are, by statute, matters within the exclusive province of those certain federal agencies selected for this purpose (here, ATSDR). As again aptly stated by the defendants (Ct. Rec. 128, tab 3 at 33), “ATSDR is part of a regulatory scheme prescribed in CERCLA to regulate all activities at NPL [ (National Priorities List)] sites comprehensively.” While reaching this conclusion, the court shares the concerns expressed by the plaintiffs as to whether, as a practical matter, ATSDR is capable of carrying out its con-gressionally-mandated duties; see U.S. General Accounting Office, GAO/RCED-91-178 Public Health Assessments of Superfund Sites (1991). It was apparently because of such concerns (and concerns as to the cleanup of federal facilities generally) that Congress enacted § 9659(a)(2), which provides for the commencement of a civil action (so long as it is in otherwise in conformity with § 9613(h) — see § 9659(h)) against the President or any other officer of the United States (including the Administrator of the Environmental Protection Agency and the Administrator of the ATSDR) where there is alleged a failure of the President or of such other officer to perform any act or duty under this chapter, including an act or duty under section 9620 of this title (relating to Federal facilities), which is not discretionary with the President or such other officer. (Emphasis supplied.) See also Gaba & Kelly, supra, at 944 (“Section 310 [ (§ 9659) ] is certainly available to compel the Administrator of the ATSDR to perform nondis-cretionary duties such as the listing of substances, development of guidelines, preparation of toxicological profiles, and health assessments at Superfund sites.”). But as the court finds that a concrete challenge to those efforts of ATSDR at Hanford which is consistent with these provisions has yet to be asserted, it finds itself compelled to hold that it is without jurisdiction to hear those claims which have. C. Motion to Dismiss Claims for Recovery of Response Costs Under CERCLA 42 U.S.C.A. § 9607(a)(4)(B) (Supp. 1991) generally provides in part that the owner and/or operator of a facility from which there is a release of a hazardous substance shall be liable for any necessary costs of response incurred by any person which are consistent with the national contingency plan. Here, the defendants seek the dismissal, pursuant to Fed.R.Civ.P. 12(b)(6), of the plaintiffs’ claims for the recovery of any such “response costs.” It is the defendants’ position that the plaintiffs have failed to allege with specificity any identifiable response costs incurred by any particular plaintiff, an act which they maintain is essential to the successful assertion of any claim for the same. In addition, the defendants argue that the plaintiffs have not, and indeed cannot, allege that such costs, regardless of whether they have been or are only to be incurred, are in any way “necessary.” A complaint (or any portion thereof) is subject to dismissal pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted only where “it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In making this determination, the court is again required to construe the complaint in the light most favorable to the plaintiffs, and all allegations are to be regarded as true. Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686. As indicated supra, in order to prevail on a § 9607 claim for private response cost recovery, the plaintiffs must establish, inter alia, that the alleged release or releases “caused the plaintiff[s] to incur costs that were ‘necessary’ and ‘consistent with the national contingency plan.’ ” 3550 Stevens Creek Associates v. Barclays Bank of California, 915 F.2d 1355, 1358 (9th Cir.1990) (quoting Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir.1989)). The Ninth Circuit Court of Appeals has held that this element in turn requires that a plaintiff, in order to state a prima facie case sufficient to withstand a motion to dismiss, “must allege at least one type of ‘response cost’ cognizable under CERCLA that has been incurred.” Ascon Properties, 866 F.2d at 1154.” As noted by the court in Ascon Properties, “CERCLA does not define the term ‘response cost.’ ” 866 F.2d at 1154. “However, in its definitional section, CERCLA does define ‘response’ as ‘remove, removal, remedy, and remedial action.’ ” Id. (quoting § 9601(25)). And as noted in part B supra, the terms “remove” and “removal” include “such actions as may be necessary to monitor, assess, and evaluate the release ... of hazardous substances, ... or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release.” § 9601(23); see also Ascon Properties, 866 F.2d at 1154 (in which the court likewise relies on this paragraph for this purpose (citing Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 695 (9th Cir.1988)). Although the court has been unable to locate any cases in which the Ninth Circuit Court of Appeals has considered whether costs incurred for medical testing or screening (see discussion infra) constitute response costs under CERCLA, this issue was considered by the district court in Brewer v. Ravan, 680 F.Supp. 1176, 1179 (M.D.Tenn.1988). In reaching its decision that such costs did qualify as response costs, the Brewer court reasoned as follows: CERCLA’s legislative history clearly indicates that medical expenses incurred in the treatment of personal injuries or disease caused by an unlawful release or discharge of hazardous substances are not recoverable under section 9607(a).... To the extent that plaintiffs seek to recover the cost of medical testing and screening conducted to assess the effect of the release or discharge on public health or to identify potential public health problems presented by the release, however, they present a cognizable claim under section 9607(a). Id. (emphasis in the original). The court finds this explanation to be persuasive (as apparently also do the plaintiffs; see Ct. Rec. 117, tab 5 at 16, n. 4 (“Medical monitoring does not include the treatment of illness, once the illness is diagnosed. The legislative history of CERCLA demonstrates that medical treatment, as opposed to medical monitoring, is not a response cost.”) (citing Brewer)). See also Allan Kanner, Medical Monitoring: State and Federal Perspectives, 2 Tulane Envtl.L.J. 1 (1989). The court thus finds any costs the plaintiffs have incurred or might in the future incur for medical monitoring, as well as (by the same reasoning) for environmental and biological monitoring, to be properly classifiable as response costs for purposes of this statute. Turning then to the allegations contained in the Consolidated Complaint, it appears that the only arguable reference to the actual incurrence of a CERCLA response cost is that which can be found at 16, Í! 10, which states: “Numerous Plaintiffs and members of the Classes have incurred ... medical expenses to monitor the development and onset of disease.” While the defendants (and probably also the court) might have preferred more substantial and more particularized allegations on this point, the court nevertheless finds that such an allegation, per the above authorities (see Ascon Properties, supra), constitutes sufficient pleading for purposes of the present motion. But while the court finds that the plaintiffs have adequately pleaded the incur-rence of a CERCLA response cost, that act, in itself, is insufficient to state a claim of this nature. Rather, and again as noted supra, § 9607(a)(4)(B) requires in addition that the plaintiffs establish that the alleged releases caused the plaintiffs to incur response costs that were “necessary” and “consistent with the national contingency plan.” While here also navigating waters heretofore uncharted, the court finds, in the context of a claim for the costs of environmental, biological and medical monitoring asserted against governmentally-in-demnified contractors in connection with releases from a federal facility currently the subject of an ongoing § 9604(i) ATSDR study, that such costs cannot be regarded as “necessary.” Although not expressly stated in the statute itself, there appears to be little question that § 9607(a)(4)(B) was enacted primarily to enable “[a] private party [to] bring a CERCLA action against another private party.” Levin Metals Corp. v. Parr-Richmond Terminal Co., 608 F.Supp. 1272, 1275 (N.D.Cal.1985) (emphasis supplied), rev’d on other grounds, 799 F.2d 1312 (9th Cir.1986). But here, the plaintiffs seek the recovery of response costs against parties who are only nominally private; any amounts actually recovered will be, again, ultimately borne by the federal government. In this context, it must be observed that § 9607(a)(4) itself differentiates between those costs “incurred by other persons” (subparagraph (B)) and those “incurred by the United States Government” (subparagraph (A)), and, more significantly, with those associated with “any health assessment or health effects study carried out under section 9604(i) of this title” (subparagraph (D)). Thus, while a private plaintiff generally need not act pursuant to a governmentally-authorized cleanup program in order to pursue a claim under this section (Cadillac Fairview, 840 F.2d at 694), it nevertheless may not act in a manner which, in essence, constitutes a challenge to a “removal or remedial action selected under section 9604” prohibited by § 9613(h). See part B, supra. In other words, because the plaintiffs’ claims for the recovery of response costs — which, as noted, must be regarded as indistinguishable from their claims for medical surveillance relief — are the product of activities indistinguishable from those being performed by the federal government at Hanford pursuant to § 9604(a)(1), (b)(1) and (i) — which, by definition, include all actions deemed necessary to protect the public health or welfare or the environment — such costs, to the extent they differ or in any way deviate from those performed by the government, cannot, it seems to the court, be deemed as necessary. See also § 9620(e)(2) (requiring, as to federal facilities, that federal agencies enter into agreements “for the expeditious completion ... of all necessary remedial action at such facility”) (emphasis supplied); National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. part 300 (1990); Hanford Federal Facility Agreement and Consent Order, supra. D. Motion to Dismiss Plaintiffs’ Requests for Disclosure The defendants next “move, pursuant to Fed.R.Civ.P. 12(b)(6) and 12(f), to dismiss or strike plaintiffs’ requests for disclosure of documents and information contained in their Prayer for Relief and at pages 44, 45, 46, 50, 51, 53 and 55 of their Joint Consolidated Complaint” (Ct.Rec. 54 at 1-2). Such requests are well summarized in the Prayer, wherein the class plaintiffs request: An order requiring complete and immediate disclosure of all studies, reports, analyses, data, compilations, and other similar information within the possession, custody or control of each of the Defendants concerning, relating to, or involving the releases of radioactive and/or non-radioactive hazardous substances to the environment surrounding Hanford and the effects (or potential effects) thereof[.] Ct.Rec. 15 at 79. The defendants’ motion apparently arises not out of obstinacy, but from expediency. Essentially, the defendants argue that everything sought by the plaintiffs through this claim for relief can be better obtained through the use of federal civil discovery. In so arguing, the defendants note that the plaintiffs have already propounded requests for the production of documents “which duplicate, almost word for word, the disclosure relief [requested] in the Complaint” (Ct.Rec. 55 at 2). The defendants further maintain that the discovery process, which ordinarily serves as the primary means of obtaining such information in a federal civil action, features built-in mechanisms for determining the proper scope of such requests (as well as the means for resolving any disagreements regarding the same), and may be obtained immediately, without regard to whether the plaintiffs prevail on the merits. A claim of this type, they argue finally, to the extent cognizable at all, would only be duplicative of this process. The court agrees. Indeed, that information obtainable by discovery is arguably even broader than that sought by the plaintiffs as a form of relief; see Rule 26(b)(1). The court accordingly rejects the argument that such “relief” would be more properly obtained as a matter of equity (see Jaffee v. United States, 663 F.2d 1226 (3d Cir.1981), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982)), and likewise rejects any notion that the defendants’ assertions as to the efficacy of the discovery process are in any manner speculative or disingenuous. Thus, irrespective of whether the defendants’ motion to dismiss these claims should be granted or denied, the court finds that such claims nevertheless should be eliminated, and elects to do so via the defendants’ alternative motion to strike. See 5A Wright & Miller, supra, § 1382 at 703-04 (observing that “some courts will strike redundant or immaterial allegations in [complicated civil actions] on the ground that they are so complex or lengthy that they place an undue burden on the responding party”). E. Motion to Dismiss Plaintiffs’ Claims for Punitive Damages Apparently in connection with both their claims arising under the Price-Anderson Act and under CERCLA, the individual and class plaintiffs seek, in addition to those other forms of relief sought, an award of punitive damages “to the extent allowable by law” (Ct.Rec. 15 at 78, 81). Through this motion, which is again madé pursuant to Fed.R.Civ.P. 12(b)(6), the defendants seek the dismissal of those portions of the plaintiffs’ claims alleging any entitlement to such damages. As a threshold matter, the court agrees with the defendants that it is “aware of no authority, either legislative or judicial, that would allow plaintiffs to recover punitive damages as a ‘response cost’ under their CERCLA § 107 claim” (Ct.Rec. 57 at 17). Regan v. Cherry Corp., 706 F.Supp. 145, 151-52 (D.R.I.1989). Thus, to the extent such claims are founded on this basis, such must be dismissed. The Price-Anderson jurisdictional provision, 42 U.S.C.A. § 2210(n)(2) (Supp. 1991), states in part: “With respect to any public liability action arising out of or resulting from a nuclear incident, the United States district court in the district where the nuclear incident takes place ... shall have original jurisdiction without regard to the citizenship of any party or the amount in controversy.” Section 2014(hh), which describes the law applicable to such an action, further states in part: A public liability action shall be deemed to be an action arising under section 2210 of this title, and the substantive rules for decision in such action shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of such section. The parties agree (as does the court) that all “incidents” alleged occurred in Washington, and thus from the law of Washington will be “derived,” where applicable, the “substantive rules for decision in [this] action.” The parties also agree (as again does the court) that, as a matter of substantive law, Washington generally prohibits the award of punitive damages; Barr v. Interbay Citizens Bank, 96 Wash.2d 692, 699-700, 649 P.2d 827 (1981). But the parties disagree as to whether the phrase “law of the State” is to be interpreted as including only Washington substantive law, or, in addition, Washington choice of law rules, and if the latter, whether the operation of those rules mandates the application of the punitive damages law of a state which permits their award. Once again, this question is apparently one of first impression. Upon consideration of the Act as a whole (and particularly the 1988 amendments thereto), it appears to the court that its primary purpose was not to alter, in the main, that state law which (but for this Act) would be controlling in this area, but rather to enhance its effect. On this point, the following passage from Senate Report 100-218, in addition to being representative, is instructive: The Price-Anderson system, including the waiver of defenses provisions, the omnibus coverage, and the predetermined sources of funding, provides persons seeking compensation for injuries as a result of a nuclear incident with significant advantages over the procedures and standards for recovery that might otherwise be applicable under State tort law. S.Rep. No. 218, 100th Cong., 2d Sess. 4 (1988), reprinted in 1988 U.S.C.C.A.N. 1424, 1476, 1479. Viewed accordingly, the court finds the reasoning of the United States Supreme Court as offered in Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962) (wherein the Court held the analogous phrase “the law of the place where the act or omission occurred” (Federal Tort Claims Act, 28 U.S.C. § 1346(b)) was to be interpreted as including a state’s choice of law rules) as persuasive, as here also it finds the function of the statutory reference to state law (but for certain clearly delineated federal exceptions) to be to place the invoking plaintiff in the same position as one asserting similar or parallel state court provisions. Thus (and there being here no affirmative indications to the contrary), the court finds the better interpretation of the phrase “law of the State” as meaning the whole law of the state, including any choice of law provisions, rather than simply that portion which relates specifically to substance. In Washington, a “most significant relationship” test has been developed for resolving choice of law questions in actions, such as this, sounding in tort. Johnson v. Spider Staging Corp., 87 Wash.2d 577, 555 P.2d 997 (1976). The first part of this test involves an “evaluation of the contacts with each interested jurisdiction” (Southwell v. Widing Transportation, Inc., 101 Wash.2d 200, 204, 676 P.2d 477 (1984)). With respect to this evaluation, the court in Johnson makes reference to Restatement (Second) of Conflict of Laws § 145 (1971), which states: (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. Johnson, 87 Wash.2d at 580-81, 555 P.2d 997 (emphasis omitted). In applying these principles, a court is “not merely to count contacts, but rather [is] to consider which contacts are most significant and determine where these contacts are found.” Id. at 581, 555 P.2d 997. The second part of the most significant relationship test “involves an evaluation of the interests and public policies of potentially concerned jurisdictions” (Southwell, 101 Wash.2d at 204, 676 P.2d 477). “The extent of the interest of each of the potentially interested states should be determined on the basis, among other things, of the purpose sought to be achieved by their relevant local law rules and of the particular issue involved.” Johnson, 87 Wash.2d at 582, 555 P.2d 997 (quoting comment d to § 175). As the factors described in both parts of the Johnson most significant relationship test (save the location of certain plaintiffs at the time of their alleged injuries), to the extent conclusive at all, weigh heavily in favor of the application of Washington substantive law, a protracted analysis of this issue seems unnecessary. Summarily stated, in light of the facts that all releases of hazardous substances are alleged to have emanated from or near the Hanford Nuclear Reservation; that the vast majority of the persons alleging injury as a result of these releases were located, at the time of injury, in Washington; and that all of the defendants (or their Hanford subsidiary or division), at the time of their involvement with Hanford, were likewise located in Washington, this court has little difficulty concluding that Washington substantive law, at least as it relates to punitive damages, is to be applied in this proceeding. Thus, in light of Washington’s general prohibition as to the award of such damages {Barr, supra), the court finds that the defendants’ motion to dismiss the same must be granted. F. Motion to Dismiss Plaintiffs’ Claims for Negligence Per Se, Misrepresentation and Concealment, Outrage, Public Nuisance, Intentional Trespass and Private Nuisance Through this motion, the defendants move, again pursuant to Fed.R.Civ.P. 12(b)(6), for the dismissal of those claims of the plaintiffs (which, though founded on state law, are deemed as arising under the Price-Anderson Act {see Consolidated Complaint, Ct.Rec. 15 at part VI.A.; discussion, part E supra)) based on negligence per se (a subclaim which constitutes a portion of the plaintiffs’ First Claim for Relief); intentional trespass and private nuisance (Third Claim for Relief); public nuisance (Fourth Claim for Relief); misrepresentation and concealment (Fifth Claim for Relief); and outrageous conduct and intentional infliction of emotional distress (Sixth Claim for Relief). The defendants additionally move, pursuant to Rule 9(b), for the dismissal of the claim based on misrepresentation and concealment on the basis that the plaintiffs “fail to state the circumstances constituting the allegedly fraudulent activity with particularity” (Ct.Rec. 58 at 2). 1. In General As a preliminary matter, the court observes that because both the plaintiffs and the defendants, by their failure to reference the law of any other jurisdiction, apparently have concluded that for purposes of this motion and to the extent applicable under Price-Anderson, Washington substantive law should be applied (a conclusion which, in light of the analysis presented in part E supra, appears in any event to be correct), this presumption will be adopted by the court without further discussion. 2. Negligence Per Se “The concept of negligence per se permits a court to substitute legislatively required standards of conduct for lesser common-law standards of reasonableness.” Herberg v. Swartz, 89 Wash.2d 916, 922, 578 P.2d 17 (1978). Under this concept, where a person is found to have acted in violation of an applicable statutory duty, that person may be said to have acted, with respect to a corresponding duty in tort, negligently as a matter of law. Id. The parties are in apparent agreement that whatever applicability the negligence per se concept at one time might have had with respect to this action was eliminated upon the enactment of the Washington Tort Reform Act of 1986, § 901. That section (which is codified at RCW 5.40.050 (Supp.1991)) states: A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence; however, any breach of duty as provided by statute, ordinance, or administrative rule relating to electrical fire safety, the use of smoke alarms, or driving while under the influence of intoxicating liquor or any drug, shall be considered negligence per se. See also Historical Note following RCW 4.16.160 (1988) (indicating, per § 910 of this same Act, that this section is applicable “to all actions filed on or after August 1, 1986”). The plaintiffs argue, however, that what they actually intended by invocation of the term “negligence per se” was instead reliance upon RCW 4.24.450 and 4.24.460 (1988), and specifically RCW 4.24.-460(2), which states: If a nuclear incident occurs, there is a presumption that the operator of a waste repository was negligent in constructing, operating, or monitoring the waste repository, or in transporting radioactive waste, and that the operator was an actual cause of the nuclear incident. The presumption may be rebutted by a clear and convincing showing by the operator that the nuclear incident was not the result of the operator’s negligence and that the operator’s negligence was not an actual cause of the nuclear incident. Regarding this provision, the parties apparently also agree (as does the court) that its effect is in no way vitiated by the enactment of RCW 5.40.050, as each pertains to matters of entirely different legal scope. See RCW 4.24.460(1) (“Operators are liable for failure to exercise ordinary and rea sonable care to protect persons and property subject to injury in nuclear incidents” (emphasis supplied)). As the plaintiffs otherwise appear to have pleaded facts sufficient to state a claim under these provisions {see Ct.Rec. 15 at 60-64, ¶¶ 78-89), it appears that to this extent, the court must deny this portion of the defendants’ motion. 3. Intentional Trespass and Private Nuisance The defendants (except perhaps Westinghouse and Westinghouse Hanford, the current operators of the Hanford site) next move for the dismissal of the plaintiffs’ claims based on intentional trespass and private nuisance due, in their view, to the expiration of the appropriate statute of limitations period. The parties agree that a claim for trespass carries with it a three-year limitations period (RCW 4.16.080(1) (Supp.1991); Bradley v. American Smelting and Refining Co., 104 Wash.2d 677, 692, 709 P.2d 782 (1985)), whereas a two-year period is applicable for claims sounding in nuisance (RCW 4.16.130 (1988); Ri-blet v. Spokane-Portland Cement Co., 41 Wash.2d 249, 258, 248 P.2d 380 (1952)). But the parties disagree as to the potential applicability of the “discovery rule” to these claims — a rule which provides “that a statute of limitation does not begin to run until the plaintiff, using reasonable diligence, would have discovered the cause of action” (U.S. Oil & Refining Co. v. Department of Ecology, 96 Wash.2d 85, 92, 633 P.2d 1329 (1981)). On the subject of the discovery rule, the court in U.S. Oil continues: In determining whether to apply the discovery rule, the possibility of stale claims must be balanced against the unfairness of precluding justified causes of action. That balancing test has dictated the application of the rule where the plaintiff lacks the means or ability to ascertain that a wrong has been committed. ... ... In each [instance where the rule has been applied], the premise underlying all limitation statutes was not applicable. Statutes of limitation operate upon the premise that “when an adult person has a justiciable grievance, he usually knows it and the law affords him ample opportunity to assert it in the courts.” That premise is also inapplicable where the plaintiff must rely on the defendant’s self-reporting. Where self-reporting is involved, the probability increases that the plaintiff will be unaware of any cause of action, for the defendant has an incentive not to report it. Like the other cases which have employed the rule, this is a case [ (see discussion infra) ] where if the rule were not applied the plaintiff would be denied a meaningful opportunity to bring a suit. Like those plaintiffs, this plaintiff lacks the means and resources to detect wrongs within the applicable limitation period. Not applying the rule in this case would penalize the plaintiff and reward the clever defendant. Neither the purpose for statutes of limitation nor justice is served when the statute runs while the information concerning the injury is in the defendant’s hands. 96 Wash.2d at 93-94, 633 P.2d 1329 (citations omitted). While the defendants, as a general matter, apparently take no issue with this statement of the law, they cite two cases, Bradley and Biblet, for the proposition that in Washington, the discovery rule is simply not applicable to claims, such as the plaintiffs’, based on trespass and nuisance. In Bradley, the Washington Supreme Court stated: “We reject the discovery rule as being inappropriate for a continuing trespass claim” (defining “continuing trespass” as “an unprivileged remaining on land in another’s possession” (quoting Restatement (Second) of Torts § 158, comment m)). 104 Wash.2d at 693, 709 P.2d 782. But in explaining its decision, the court went on to state: “With circumstances, such as confront us here, and in the interests of certainty, it would be improper to expose manufacturers to claims running back for untold years when the injury many years back may have been inconsequential and the very existence of a cause of action vague and speculative.” Id. The “circumstances” referred to by the Bradley court apparently refer, inter alia, to the fact that the trespass in question consisted of accumulations of heavy metal particles emitted from a smelter that had been in continuous operation since at least 1905. Id. at 679-80, 709 P.2d 782. In contrast, it is the plaintiffs’ contention here that they were completely oblivious to any hazardous materials releases until July of 1990. Ct.Rec. 15 at 39, II59. There is further some doubt — perhaps of significance — whether, given the very short half-lives of some of the radionuclides known to have been released, the trespasses alleged could fairly be termed as “continuing.” Finally, the court finds that the Consolidated Complaint must be viewed as containing more than sufficient information to rebut the proposition that the injuries alleged are in any way “inconsequential,” or that if a plaintiff had sometime previously been aware of all relevant facts, his or her claim would have then been regarded as “speculative.” Even less support for the defendants’ position as to the plaintiffs’ nuisance claims can be found in Biblet, which involved an 11-year accumulation of cement dust, and which fails to mention the discovery rule at all. 41 Wash.2d at 257-59, 248 P.2d 380. In contrast to Bradley and Biblet are at least two Washington Supreme Court cases in which the discovery rule was applied in contexts which the court finds more analogous to the factual scenario presented here. The first is U.S. Oil, supra, in which the court found the rule applicable with respect to an action involving the illegal discharge of various pollutants, pollutants that purportedly went undetected due (at least in part) to the submission, by the offending company, of inaccurate regulatory reports. 96 Wash.2d at 87, 633 P.2d 1329. The second is Sahlie v. Johns-Manville Sales Corp., 99 Wash.2d 550, 551, 663 P.2d 473 (1983), in which the plaintiff was permitted to proceed with a personal injury action even though the first exposure to the material which allegedly resulted in the plaintiff’s injuries (asbestos) occurred more than 40 years prior. In sum, while this area of the law is far from settled, the better view seems to this court to require the application of the discovery rule even as to the plaintiffs’ claims based on trespass and nuisance. The court so finding, it then further seems that these are not subjects for Rule 12(b)(6) disposition, as “[w]hen an aggrieved party discovered or could have discovered the facts to support a cause of action is a question of fact.” Vigil v. Spokane County, 42 Wash. App. 796, 800, 714 P.2d 692 (1986). The court therefore finds that this portion of the defendants’ motion also must be denied. 4. Public Nuisance The defendants next seek the dismissal of the plaintiffs’ claims based on public nuisance on the ground that the Consolidated Complaint “does not specify any unique or different injuries that would set the plaintiffs apart from the community and permit a private recovery” (Ct.Rec. 59 at 13-14). In support of this argument, the defendants cite RCW 7.48.210, which states: “A private person may maintain a civil action for a public nuisance, if it is specially injurious to himself but not otherwise.” While the defendants acknowledge that the plaintiffs have affirmatively alleged that the purported releases have “endangered the rights of the entire community surrounding the [Hanford] facility” (Ct.Rec. 15 at 68, 11105), and that the injuries sustained “are special and unique to Plaintiffs and distinct and different from those injuries suffered by the public generally” {id. at 69, 11106), the defendants maintain that such statements “merely trace the language of the Washington nuisance statute” (Ct.Rec. 59 at 15), and are negated by other allegations (such as those involving monitoring) of such breadth “that [they] would appear to give everyone in Eastern Washington a cause of action” (id. at 14). The majority of Washington courts which have been asked to interpret RCW 7.48.210 and its predecessors have considered the phrase “specially injurious” only conclusorily. Typical is Miotke v. City of Spokane, 101 Wash.2d 307, 332, 678 P.2d 803 (1984), an action brought by a riparian landowner for damages allegedly resulting from the discharge of raw sewage into the Spokane River, in which the Washington Supreme Court simply found, without discussion, the statutory requirement satisfied in that “plaintiffs suffered ... injuries considerably greater than those suffered by the general public.” A more reasoned explanation of this provision can be found in State ex rel. Vandervort v. Grant, 156 Wash. 96, 286 P. 63 (1930), in which the court recites the following passage from the “well considered case of Wesson v. Washburn Iron Co., 13 Allen (Mass.) 95”: “Where a public right or privilege common to every person in the community is interrupted or interfered with, a nuisance is created by the very act of interruption or interference which subjects the party through whose agency it is done to a public prosecution, although no actual injury or damage may be thereby caused to any one. If, for example, a public way is obstructed, ... the law does not permit private actions to be maintained on proof merely of a disturbance in the enjoyment of the common right, unless special damage is also shown, distinct not only in degree, but in kind, from that which is done to the whole public....” 156 Wash, at 100-01, 286 P. 63 (ellipses by this court). Upon review of the Consolidated Complaint, and considering the same as a whole, it appears to the court, following Vandervort, that although the entire area s