Kristen Giovanni v. United States Department of Na , 906 F.3d 94 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 17-2473 & 17-3196
_____________
KRISTEN GIOVANNI, Individually and as parent and
natural guardian of V.G., a minor, and D.G., a minor;
CHARLES GIOVANNI, Individually and as parent and
natural guardian of V.G., a minor and D.G., a minor;
ANTHONY GIOVANNI,
Appellants in No. 17-2473
v.
UNITED STATES DEPARTMENT OF THE NAVY
DOROTHY PALMER; GEORGE PALMER,
Appellants in No. 17-3196
v.
UNITED STATES DEPARTMENT OF THE NAVY
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 2-16-cv-04873 and 2-17-cv-00765)
District Judge: Hon. Gerald J. Pappert
_______________
Argued
April 26, 2018
Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges
(Opinion Filed: October 2, 2018)
_______________
Mark R. Cuker [ARGUED]
Amy Montemarano
Cuker Law
2005 Market Street – Ste. 1300
Philadelphia, PA 19103
Counsel for Appellants Kristen Giovanni, Charles
Giovanni and Anthony Giovanni.
Steven E. Angstreich [ARGUED]
Amy R. Brandt
Weir & Partners
1339 Chestnut Street – Ste. 500
Philadelphia, PA 19107
Counsel for Appellants Dorothy Palmer
and George Palmer
Jeffrey H. Wood
Eric Grant
Chloe H. Kolman
Sonya J. Shea
Thomas J. Alford
Brian C. Toth
Jeffrey S. Beelaert [ARGUED]
United States Department of Justice
Environment & Natural Resources Division
2
P.O. Box 7611
Ben Franklin Station
Washington, DC 20044
Counsel for Appellee
Deanna K. Tanner
Delaware Riverkeeper Network
925 Canal Street – Ste. 3701
Bristol, PA 19007
Counsel for Amicus Appellants Delaware
Riverkeeper and Delaware Riverkeeper Network
Suzanne I. Novak
Earthjustice
48 Wall Street – 19th Fl.
New York, NY 10005
Counsel for Amicus Appellants Brendan Boyle, Lori
Cervera, Renee Frugoli, Hope Grosse, Yvonne Love,
Minda Ruch, Joanne Stanton and Jacquelyn Rose
Wiest
Kevin S. Hannon
1641 Downing Street
Denver, CO 80218
Counsel for Amicus Appellant Toxics Action Center
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
3
The Giovanni family and the Palmer family live in
neighborhoods close to contaminated federal facilities that
were owned and operated for decades by the United States
Navy. The families filed separate suits in state court under
the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”), 35
Pa. Cons. Stat. §§ 6020.101-.1305, seeking orders requiring
the Navy to pay for medical monitoring and to conduct a
health assessment or health effects study that would include
blood testing for themselves and others exposed to the
hazardous substances released at the contaminated facilities.
The Navy removed the cases to the United States District
Court for the Eastern District of Pennsylvania, which
concluded that the claims fell within the ambit of the
Comprehensive Environmental Response, Compensation and
Liability Act (“CERCLA” or “the Act”), 42 U.S.C. §§ 9601-
9675, and were challenges under that Act to ongoing cleanup
efforts at the facilities. Based on that, the Court further
decided that it lacked subject matter jurisdiction over the
cases and dismissed them. The Giovannis and Palmers now
appeal those orders of dismissal.
We will affirm in part. In our view, the claim for a
health assessment or health effects study is barred, as the
District Court said, because it challenges ongoing cleanup
efforts. But we will vacate and remand in part because we
conclude that the medical monitoring claim is not a challenge
under CERCLA and that it is not barred by sovereign
immunity.
4
I. BACKGROUND FACTS1
The Navy owns a number of properties in
Pennsylvania, including the Willow Grove Naval Air and Air
Reserve Station in Horsham Township and the Naval Air
Development Center in Warminster Township (collectively,
“the Naval Facilities”). Because of the Navy’s activities, both
facilities are contaminated with hazardous substances.
Among the contaminants are perfluorinated compounds
(“PFCs”), including perfluorooctanoic acid (“PFOA”) and
perfluorooctanesulfonic acid (“PFOS”).
Studies have identified the toxic effects that PFCs have
on people, including increased risk of kidney cancer,
testicular cancer, thyroid disease, ulcerative colitis,
pregnancy-induced hypertension, and high cholesterol. And
1
The parties do not dispute any material facts bearing
on the issue of subject matter jurisdiction, which makes the
Navy’s attack on the complaints under Rule 12(b)(1) a facial
challenge rather than a factual one. See Hartig Drug Co. Inc.
v. Senju Pharm. Co. Ltd., 836 F.3d 261, 268 (3d Cir. 2016)
(“A facial 12(b)(1) challenge … attacks the complaint on its
face without contesting its alleged facts[.]”). Thus, because
we address a facial challenge, the facts set forth here come
from the Giovannis’ and Palmers’ complaints and documents
referenced therein, and are taken in the light most favorable to
them. See Schuchardt v. President of the U.S., 839 F.3d 336,
343 (3d Cir. 2016) (“In a facial attack, we review only ‘the
allegations of the complaint and documents referenced therein
and attached thereto, in the light most favorable to the
plaintiff.’” (quoting Gould Elecs. v. United States, 220 F.3d
169, 176 (3d Cir. 2000)).
5
the Environmental Protection Agency (“EPA”) has
specifically warned that drinking water containing PFOA and
PFOS above certain thresholds poses health risks. It issued a
non-binding provisional health advisory recommending a
maximum combined PFOA/PFOS concentration in public
drinking water of 70 parts per trillion (0.07 µg/L).
Groundwater sampling at both the Naval Facilities
revealed that the PFOA and the PFOS levels exceeded the
health advisory levels. Those facilities, being in need of
further investigation to determine the nature and extent of the
public health and environmental risks associated with
chemical contamination, have been added to the National
Priorities List (“NPL”), which is also sometimes called the
Superfund List.2 The Navy has begun environmental cleanup
efforts, and the parties do not dispute that those efforts are
ongoing in both places.
Kristen Giovanni, along with her husband Charles
Giovanni, her son Anthony Giovanni, and two other minor
children V.G. and D.G., lives across the street from the
Willow Grove facility. The water from their private well had
a combined PFOA/PFOS level of 2.88 µg/L, which exceeds
the concentration exposure threshold recommended by the
2
The NPL is a list, compiled by the EPA, of facilities
throughout the United States and its territories that are
considered “national priorities” among all the facilities known
to have involved releases, or that threaten releases, of
hazardous substances, pollutants, and contaminants.
Superfund: National Priorities List (NPL),
https://www.epa.gov/superfund/superfund-national-priorities-
list-npl (last visited June 25, 2018).
6
EPA. The Navy provided the Giovannis with bottled water
for several months before it connected them to the
Warrington Township public water supply. But even that
public water supply is contaminated with PFCs.
Dorothy Palmer, along with her son George Palmer,
has lived less than one mile from the Warminster facility
since 1981. For years, they used a private well on their
property, until they learned about the PFOA and PFOS
contamination in the groundwater. The water from their
private well had a combined PFOA/PFOS level of 0.62 µg/L,
which exceeds the combined exposure threshold
recommended by the EPA. The Navy provided the Palmers
with bottled water until it connected them to the Warminster
Municipal Authority’s public water supply. Subsequent
testing of that supply has revealed PFC contamination there
too.
II. PROCEDURAL HISTORY
The Giovannis filed a complaint against the Navy in
the Montgomery County Court of Common Pleas, and the
Palmers did the same in the Bucks County Court of Common
Pleas. Both complaints alleged harm from the contaminated
public and private water sources for residents around the
Naval Facilities due to the Navy’s allegedly improper
disposal of hazardous substances. Each complaint included a
single state law claim under HSCA seeking, among other
things, the costs of medical monitoring and an order
compelling the Navy to conduct a health assessment or health
effects study that would include blood testing for themselves,
and “others exposed to the contaminants and hazardous
substances released from the Warminster and Willow Grove
7
[f]acilities[.]” (Palmer Appendix (“P.A.”) at 16.) They also
alleged that the Navy waived its sovereign immunity pursuant
to § 120(a)(1) of CERCLA, 42 U.S.C. § 9620(a)(1), and
§ 6001(a) of the Resource Conservation and Recovery Act
(“RCRA”), 42 U.S.C. § 6961(a).
The Navy removed both cases to the District Court
under 28 U.S.C. § 1442(a)(1). The Giovannis and Palmers
then filed motions to remand their cases to state court. The
Navy responded by moving to dismiss the cases without
remand, which the Giovannis and Palmers opposed.
The District Court held a hearing on the competing
motions in the Giovannis’ case. The parties agreed that
removal was proper under 28 U.S.C. § 1442, which prompted
the Court to deny the motion for remand. Ultimately, the
Court dismissed the Giovannis’ complaint, and it issued a
thorough and detailed memorandum opinion to support its
decision. It concluded that § 113(h) of CERCLA3 deprived it
3
Section 113(h), which is codified at 42 U.S.C.
§ 9613(h), states:
(h) Timing of review
No Federal court shall have jurisdiction under
Federal law other than under section 1332 of
Title 28 (relating to diversity of citizenship
jurisdiction) or under State law which is
applicable or relevant and appropriate under
section [121 of the Act] (relating to cleanup
standards) to review any challenges to removal
or remedial action selected under section [104
8
of the Act], or to review any order issued under
section [106(a) of the Act], in any action except
one of the following:
(1) An action under section [107 of the
Act] to recover response costs or
damages or for contribution.
(2) An action to enforce an order issued
under section [106(a) of the Act] or to
recover a penalty for violation of such
order.
(3) An action for reimbursement under
section [106(b)(2) of the Act].
(4) An action under section [159 of the
Act] (relating to citizens suits) alleging
that the removal or remedial action taken
under section [104 of the Act] or secured
under section [106 of the Act] 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.
(5) An action under section [106 of the
Act] in which the United States has
moved to compel a remedial action.
42 U.S.C. § 9613(h).
9
of jurisdiction to hear a claim that would interfere with an
ongoing cleanup under CERCLA, and that the Giovannis’
claims that the Navy should pay for medical monitoring and
should provide a health study amounted to a challenge to the
ongoing response actions at the Naval Facilities. The Court
construed § 113(h) of CERCLA as depriving both it and the
state courts of jurisdiction, and thus it dismissed the
Giovannis’ case under the doctrine of derivative jurisdiction,
without remand.
The District Court then disposed of the Palmers’
complaint in a footnote order granting the Navy’s motion to
dismiss, “consistent with the Court’s Opinion in Giovanni[.]”
(P.A. at 45.) In that order, the District Court rejected an
additional argument raised by the Palmers, namely that the
cleanup activities were initiated under § 120 of CERCLA4
4
Section 120 of CERCLA, which is codified at 42
U.S.C. § 9620, clarifies that the Act applies to federal
facilities:
Each department, agency, and instrumentality
of the United States (including the executive,
legislative, and judicial branches of
government) shall be subject to, and comply
with, this chapter in the same manner and to the
same extent, both procedurally and
substantively, as any nongovernmental entity,
including liability under section [107 of the
Act]. Nothing in this section shall be construed
to affect the liability of any person or entity
under sections [106 and 107 of the Act].
10
and were therefore not affected by § 113(h)’s jurisdictional
bar. It concluded that the authority to clean up the Naval
Facilities derived from § 104 of the Act,5 not § 120.
The Giovannis and Palmers filed these timely appeals.
Amicus briefs have been filed in support of the Giovannis and
Palmers by the following groups: (1) the Delaware
Riverkeeper Network and Maya van Rossum, also known as
the Delaware Riverkeeper; (2) the Toxics Action Center; and
(3) Brendan Boyle, Lori Cervera, Renee Frugoli, Hope
Grosse, Yvonne Love, Minde Ruch, Joanne Stanton, and
Jacquelyn Rose Wiest, all of whom currently live or formerly
lived near the Naval Facilities.6
42 U.S.C. § 9620(a)(1).
5
Section 104 of CERCLA, which is codified at 42
U.S.C. § 9604, authorizes the President “to remove or arrange
for the removal of, and provide for remedial action” which he
“deems necessary to protect the public health or welfare or
the environment” whenever “any hazardous substance is
released or there is a substantial threat of such a release into
the environment[.]” 42 U.S.C. § 9604(a)(1).
6
We are grateful for the additional insights provided
by the amici.
11
III. DISCUSSION7
We will affirm in part and vacate in part the District
Court’s dismissal of the Giovannis’ and Palmers’ complaints
and will affirm its decision not to remand to state court.
Although the requests for a government-led health assessment
or health effects study are barred under § 113(h) as challenges
to ongoing response actions, the requests for the costs
associated with private party medical monitoring are not
barred by that CERCLA provision because that relief does not
interfere with or alter the ongoing cleanup efforts. Moreover,
the relief sought by the Giovannis’ and Palmers’ on their
medical monitoring claims is best characterized as injunctive
relief, and the federal government has waived sovereign
immunity to suits by private parties seeking such relief. We
will therefore vacate the District Court’s dismissal of the
7
Our jurisdiction to review the District Court’s
rulings is uncontested and is rooted in 28 U.S.C. § 1291. The
District Court’s jurisdiction is contested. The Giovannis’ and
Palmers’ state law claims were properly removed to federal
court by the Navy under 28 U.S.C. § 1442(a) because the
Navy presented colorable federal defenses, including that the
claims are barred under § 113(h) of CERCLA and that it is
entitled to sovereign immunity. See Mesa v. California, 489
U.S. 121, 136 (1989) (noting that removal is proper when a
defendant demonstrates the presence of a federal question,
either in the form of a federal claim or a colorable federal
defense); see also Parker v. Della Rocco, 252 F.3d 663, 665
n.2 (2d Cir. 2001) (characterizing sovereign immunity as a
federal defense when asserted by a federal agency). The
parties dispute the applicability of those defenses, and we will
address those disputes herein.
12
Giovannis’ and Palmers’ requests for costs associated with
private party medical monitoring and remand for further
proceedings on those claims.
Our review of a district court’s grant of a motion to
dismiss is plenary. Bell v. Cheswick Generating Station, 734
F.3d 188, 193 n.5 (3d Cir. 2013). When there is a facial
attack on subject matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1), see supra note 1, “we review only
‘the allegations of the complaint and documents referenced
therein and attached thereto, in the light most favorable to the
plaintiff.’” Schuchardt v. President of the U.S., 839 F.3d 336,
343 (3d Cir. 2016) (quoting Gould Elecs. v. United States,
220 F.3d 169, 176 (3d Cir. 2000)). Furthermore, “we
exercise plenary review over a district court’s interpretation
of CERCLA[.]” Agere Sys., Inc. v. Advanced Envtl. Tech.
Corp., 602 F.3d 204, 216 (3d Cir. 2010). And our review of a
“[d]istrict [c]ourt’s interpretation and application of legal
rules and doctrines” is plenary. McBride v. Int’l
Longshoremen’s Ass’n, 778 F.3d 453, 458 (3d Cir. 2015).
A. Lack of Jurisdiction Over “Challenges”
Under § 113(h)
The Navy argues that federal courts are without
jurisdiction to rule on the Giovannis’ and Palmers’ state law
claims because they are barred under § 113(h) as “challenges”
to ongoing cleanup efforts at the Naval Facilities. The
Giovannis and Palmers, of course, disagree because, as they
see it, their requested relief will not interfere with those
ongoing efforts. We therefore first address whether state law
claims seeking compensation to fund private party medical
monitoring and state law claims seeking a government-led
13
health assessment or health effects study are “challenges to
removal or remedial action” under § 113(h).8 Our conclusion
is that the latter are challenges but the former are not. To
understand why, we turn to the pertinent portions of
CERCLA.
That complex statute was enacted in 1980 “in response
to the serious environmental and health risks posed by
industrial pollution.” Burlington N. & Santa Fe Ry. Co. v.
United States, 556 U.S. 599, 602 (2009). It gives “the
President broad power to command government agencies and
private parties to clean up hazardous waste sites.” Key Tronic
Corp. v. United States, 511 U.S. 809, 814 (1994). CERLCA
was designed, in part, “to ensure that the costs of such
cleanup efforts were borne by those responsible for the
contamination.” Burlington N. & Santa Fe Ry., 556 U.S. at
602 (internal quotation marks and citations omitted).
Section 113(b) of the Act provides that “the United
States district courts shall have exclusive original jurisdiction
8
Medical monitoring is meant “to compensate
plaintiffs who have been exposed to various toxic substances”
by accounting for latent diseases or injuries. In re Paoli R.R.
Yard PCB Litig., 916 F.2d 829, 849 (3d Cir. 1990). “[A]n
action for medical monitoring seeks to recover only the
quantifiable costs of periodic medical examinations necessary
to detect the onset of physical harm[.]” Id. at 850. Under
Pennsylvania law, medical monitoring claims are cognizable
under HSCA and the common law. Redland Soccer Club,
Inc. v. Dep’t of Army of U.S., 55 F.3d 827, 849 n.12 (3d Cir.
1995).
14
over all controversies arising under [CERCLA].” 42 U.S.C.
§ 9613(b). Pursuant to § 113(h), however, jurisdiction is
unavailable under federal or state law “to review any
challenges to removal or remedial action selected under
section [104][9] …, or to review any order issued under
section [106(a).][10]” Id. § 9613(h). Courts have described
9
Section 104 of CERCLA defines response
authorities under the Act, including the President’s authority
to institute removal and remedial actions to clean up
contaminated facilities; it also sets forth limitations on his
response authority, and exceptions to those limitations. See
42 U.S.C. § 9604(a). It details other cleanup-related matters
too, including financial constraints, funding, interactions with
state authorities, information gathering processes, and
emergency response powers. See generally id. § 9604(b)-(k).
10
That provision of the Act states:
In addition to any other action taken by a State
or local government, when the President
determines that there may be an imminent and
substantial endangerment to the public health or
welfare or the environment because of an actual
or threatened release of a hazardous substance
from a facility, he may require the Attorney
General of the United States to secure such
relief as may be necessary to abate such danger
or threat, and the district court of the United
States in the district in which the threat occurs
shall have jurisdiction to grant such relief as the
public interest and the equities of the case may
require. The President may also, after notice to
15
§ 113(h) as “a ‘blunt withdrawal of federal jurisdiction.’”
McClellan Ecological Seepage Situation v. Perry, 47 F.3d
325, 328 (9th Cir. 1995) (quoting N. Shore Gas Co. v. EPA,
930 F.2d 1239, 1244 (7th Cir. 1991)). It applies to “any
challenges,” not just those brought under CERCLA. Id.(emphasis added).
A well-established body of case law, including our
own, provides guidance on what it means to “challenge” a
response action. We have said that § 113(h) “clearly
preclude[s] jurisdiction to delay or interfere with EPA clean-
up activities[.]” Boarhead Corp. v. Erickson, 923 F.2d 1011,
1023 (3d Cir. 1991). Other courts have noted that “[a]
lawsuit challenges a removal action if it ‘calls into question’”
the removal plan. Cannon v. Gates, 538 F.3d 1328, 1335
(10th Cir. 2008) (citation omitted). Put in more concrete
terms, “a suit challenges a removal action if it ‘interferes with
the implementation of a CERCLA remedy’ because ‘the relief
requested will impact the [removal] action selected.’”11 Id.the affected State, take other action under this
section including, but not limited to, issuing
such orders as may be necessary to protect
public health and welfare and the environment.
42 U.S.C. § 9606(a).
11
See also El Paso Nat. Gas Co. v. United States, 750
F.3d 863, 880 (D.C. Cir. 2014) (“[A] claim is a § 113(h)
‘challenge’ if it will interfere with a ‘removal’ or a ‘remedial
action.’”); McClellan, 47 F.3d at 330 (describing the relief as
a challenge under § 113(h) because it “would clearly interfere
with the cleanup”); Razore v. Tulalip Tribes of Wash., 66
16
(alteration in original) (quoting Broward Gardens Tenants
Ass’n v. EPA, 311 F.3d 1066, 1072 (11th Cir. 2002)); see also
Costner v. URS Consultants, Inc., 153 F.3d 667, 675 (8th Cir.
1998) (indicating that a lawsuit is not a “challenge” under
§ 113(h) if it “would not involve altering the terms of [a]
cleanup order” and “would result only in financial penalties”
(citation omitted)).
In some cases, “it may be necessary to assess the nexus
between the nature of the suit and the CERCLA cleanup: the
more closely related, the clearer it will be that the suit is a
‘challenge.’” El Paso Nat. Gas Co. v. United States, 750 F.3d
863, 880 (D.C. Cir. 2014). Even though practically any
lawsuit could “increase[] the cost of a cleanup or divert[]
resources or personnel from it[,]” that does not mean that
every suit, or every request for relief within a suit,
automatically “challenges” the cleanup. McClellan, 47 F.3d
at 330. Enforcement of minimum wage laws, for example,
would have that effect, but seeking enforcement of such laws
is too attenuated from the cleanup itself to be considered a
challenge to the remediation activities. Id.A suit challenges a response action if it would, for
example, “dictate specific remedial actions and … alter the
method and order for cleanup[.]” Broward Gardens, 311
F.3d at 1072 (first alteration in original) (quoting Razore v.
Tulalip Tribes of Wash., 66 F.3d 236, 239 (9th Cir. 1995)).
Conversely, a lawsuit does not challenge a response action if
it does not “call into question the selected … remedial or
removal plan[.]” Id. at 1073.
F.3d 236, 239 (9th Cir. 1995) (“An action constitutes a
challenge if it is related to the goals of the cleanup.”).
17
To assess whether a suit is a challenge, we must also
consider the meaning of the terms “removal” and “remedial”
action as used in § 113(h). The statute defines “response”
efforts to include “remove, removal, remedy, and remedial
action[.]” 42 U.S.C. § 9601(25). Removal actions generally
include short-term or immediate efforts, while remedial
actions typically involve longer term activities. Black Horse
Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 293 (3d
Cir. 2000).
CERCLA defines the term “removal” to mean:
the cleanup or removal of released hazardous
substances from the environment, such actions
as may be necessary taken [sic] in the event of
the threat of release of hazardous substances
into the environment, such actions as may be
necessary to monitor, assess, and evaluate the
release or threat of release of hazardous
substances, the disposal of removed material, 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 or threat of release. The term
includes, in addition, without being limited to,
security fencing or other measures to limit
access, provision of alternative water supplies,
temporary evacuation and housing of threatened
individuals not otherwise provided for, action
taken under section [104(b) of CERCLA], and
any emergency assistance which may be
18
provided under the Disaster Relief and
Emergency Assistance Act [42 U.S.C.A. § 5121et seq.].
42 U.S.C. § 9601(23).
The even lengthier definition of “remedial action” is:
those actions consistent with permanent remedy
taken instead of or in addition to removal
actions in the event of a release or threatened
release of a hazardous substance into the
environment, to prevent or minimize the release
of hazardous substances so that they do not
migrate to cause substantial danger to present or
future public health or welfare or the
environment. The term includes, but is not
limited to, such actions at the location of the
release as storage, confinement, perimeter
protection using dikes, trenches, or ditches, clay
cover, neutralization, cleanup of released
hazardous substances and associated
contaminated materials, recycling or reuse,
diversion, destruction, segregation of reactive
wastes, dredging or excavations, repair or
replacement of leaking containers, collection of
leachate and runoff, onsite treatment or
incineration, provision of alternative water
supplies, and any monitoring reasonably
required to assure that such actions protect the
public health and welfare and the environment.
The term includes the costs of permanent
relocation of residents and businesses and
19
community facilities where the President
determines that, alone or in combination with
other measures, such relocation is more cost-
effective than and environmentally preferable to
the transportation, storage, treatment,
destruction, or secure disposition offsite of
hazardous substances, or may otherwise be
necessary to protect the public health or
welfare; the term includes offsite transport and
offsite storage, treatment, destruction, or secure
disposition of hazardous substances and
associated contaminated materials.
42 U.S.C. § 9601(24).
With those definitions in mind, we analyze whether the
relief requested by the Giovannis and Palmers constitutes a
challenge under §113(h) to ongoing cleanup efforts at the
Naval Facilities. We take a holistic approach that
encompasses several considerations. One is whether the
relief can be classified as a “removal” or “remedial” step.
Another and closely related consideration is the specific form
of relief requested and whether it would compel the defendant
to take some action or refrain from taking some action, or
instead seeks to have the defendant pay for a third party to
provide services. A further consideration is whether, on the
whole, there is reason to think that a given request for relief
will conflict with, impact, or otherwise interfere with the
ongoing cleanup efforts.12 We address each of those three
considerations seriatim.
12
Our concurring colleague disagrees with our holistic
approach and advocates a bright line test for determining
20
1. Removal and Remedial Actions
The provision at issue here – § 113(h) – states, in
relevant part, that federal courts lack jurisdiction “to review
whether a claim for relief constitutes a challenge. The
concurrence relies on the District of Columbia Circuit’s
opinion in El Paso Natural Gas Company v. United States,
750 F.3d 863, 880 (D.C. Cir. 2014), to propose “a single
framework” for analysis – whether the claim for relief
interferes with a removal or remedial action. Concur. Slip
Op. at 2-3. But the analysis is not so simple and El Paso does
not suggest that it is. The El Paso opinion does provide a
helpful way to conceptualize what a challenge is, but the
court acknowledged that there will be situations in which “it
may be necessary to assess the nexus between the nature of
the suit and the CERCLA cleanup” before being able to
determine whether a claim for relief would “interfere” with a
removal or remedial action. 750 F.3d at 880. It did not
purport to set forth a single bright line test.
In laying out our analytical framework, we have relied
on the collective experience of our own Court and our sister
courts, including the D.C. Circuit in El Paso, to create an
approach that we hope is sufficiently flexible to account for
the myriad circumstances in which CERCLA litigation arises
and yet clear enough to give useful guidance to district courts.
We appreciate our colleague’s desire to simplify the
“challenge” analysis for the benefit of future litigants and
courts, and we share that desire. But we think that a
framework that relies on nothing but the word “interfere” to
inform future litigation – a word that does not appear at all in
the statutory text but rather emerged through case law – will
not be as helpful as our colleague believes.
21
any challenges to removal or remedial action selected under
section [104.]” Id. § 9613(h). Thus, if the requested relief
can be classified as a removal or remedial action, it is
possible that it will conflict with, impact, or otherwise
interfere with an ongoing CERCLA cleanup for purposes of
§ 113(h). The question, then, is whether the Giovannis’ and
Palmers’ requests for relief – private party medical
monitoring and a government-led health study – fit the
statutory definitions of removal or remedial action.
a. Private Party Medical
Monitoring
The text of the statute does not suggest that private
party medical monitoring is a removal action. The reference
to “monitor[ing]” in the definition of “removal” refers to
“monitor[ing], assess[ing], and evaluat[ing] the release or
threat of release of hazardous substances,” not the monitoring
of individuals for latent diseases or injuries. 42 U.S.C.
§9601(23). And while the definition of “removal” also
includes “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 or
threat of release,” when read in context of the other actions
listed, medical monitoring does not appear to be
contemplated. Id. It is a standard principle of statutory
construction that “a word [or phrase] is known by the
company it keeps[.]” Yates v. United States, 135 S. Ct. 1074,
1085 (2015). That principle, known as noscitur a sociis,
counsels courts “to ‘avoid ascribing to one word [or phrase] a
meaning so broad that it is inconsistent with its accompanying
words [or phrases], thus giving unintended breadth to the
Acts of Congress.” Id. (citation omitted). The other actions
listed in the definition of “removal” refer to activities directly
22
related to the physical removal, containment, assessment, or
evaluation of hazardous waste, not broadly to all potential
actions taken because of a toxic release. Furthermore,
because removal actions focus on the short term, it would be
odd to classify medical monitoring as a “removal” action,
given that medical monitoring is a way to address problems
that only emerge over time.
Nor does the text support classifying private party
medical monitoring as a remedial action. Although medical
monitoring is certainly “consistent with [a] permanent
remedy[,]” it is not taken “to prevent or minimize the release
of hazardous substances.” 42 U.S.C. § 9601(24). And while
the statutory definition of “remedial action” references “any
monitoring reasonably required to … protect the public health
and welfare and the environment,” that monitoring expressly
relates to the previously listed items in the definition,
showing that the contemplated monitoring is “to assure that
such actions protect the public health and welfare and the
environment.” Id. (emphasis added). The referenced “such
actions” all relate to physical remediation efforts, including
dredging, excavations, diversions, repairs, incineration,
neutralization, and trenching. See id. The text of the statute
therefore does not easily support classifying private party
medical monitoring as either a “removal” or a “remedial”
action, and, consequently, it is not a response action. See 42
U.S.C. § 9601(25) (defining “response” in terms of “removal”
and “remedial” actions).
There is precedent for our interpretation. In Daigle v.
Shell Oil Co., for example, the United States Court of
Appeals for the Tenth Circuit held that medical monitoring
does not meet the statutory definitions for removal and
23
remedial actions because both definitions were “directed at
containing and cleaning up hazardous substance releases[,]”
not “[l]ongterm health monitoring.” 972 F.2d 1527, 1535
(10th Cir. 1992); see also Price v. United States Navy, 39
F.3d 1011, 1016-17 (9th Cir. 1994) (concluding, in the
context of a response cost analysis under § 107(a) of
CERCLA, 42 U.S.C. § 9607(a), that “medical monitoring”
does not fit the definition of “removal” or “remedial” action
as defined under CERCLA); cf. Syms v. Olin Corp., 408 F.3d
95, 105 (2d Cir. 2005) (same).13
The District Court distinguished those cases by stating
that they involved an assessment of whether medical
monitoring expenses are response costs. It said that the
reasoning in those cases is “flawed because it assumes that
‘response costs’ and ‘response’ mean the same thing under
CERCLA,” but “[t]hey do not.” (Giovanni Joint Appendix
(“G.J.A.”) at 114.) The Court determined instead that, while
13
See also Ambrogi v. Gould, Inc., 750 F. Supp. 1233,
1244-50 (M.D. Pa. 1991) (concluding that CERCLA’s
definition of “removal” does not encompass medical
monitoring); Bolin v. Cessna Aircraft Co., 759 F. Supp. 692,
713-14 (D. Kan. 1991) (same); Lutz v. Chromatex, Inc., 718
F. Supp. 413, 418 (M.D. Pa. 1989) (determining that the
definition of “response” did not include medical monitoring);
Coburn v. Sun Chem. Corp., No. 88-0120, 1988 WL 120739,
at *6 (E.D. Pa. Nov. 9, 1988) (stating that it was “difficult to
understand how future medical testing and monitoring of
persons who were exposed to contaminated well water prior
to the remedial measures currently underway” could
constitute a “removal” action under CERCLA).
24
all “removal and remedial actions” are “responses” under
CERCLA, not all such actions are “response costs.” (G.J.A.
at 114-15.) Therefore, it concluded, it “does not follow that
all ‘response costs’ are necessarily ‘removal and remedial
actions.’” (G.J.A. at 115.) We disagree with that analysis.
As the District Court noted, those particular cases cited
by the Giovannis and Palmers were deciding whether a
private party could recover the costs of medical monitoring
under CERCLA, which required an assessment of whether
medical monitoring expenses were “response costs” under
§ 107(a).14 But the District Court’s heavy reliance on a
distinction between the terms “response” and “response cost”
is not sound. It is true that CERCLA defines “response,” but
not “cost” or “response cost.” See 42 U.S.C. § 9601; cf.
Redland Soccer Club, Inc. v. Dep’t of Army of U.S., 55 F.3d
827, 849 (3d Cir. 1995) (“The absence of a definition of
‘response costs’ has been the source of much litigation since
CERCLA’s enactment.”). Yet to discount the cases cited by
the Giovannis and Palmers simply because they speak most
directly to “response costs” rather than “response” actions, is,
we believe, to miss their significance. Those cases undertake
practically identical analyses to determine whether medical
monitoring is a “removal” or “remedial action,” and thus
necessarily a “response,” en route to determining whether it is
14
Section 107(a), a provision for cost recovery claims,
is one mechanism CERCLA provides for potentially
responsible parties to recoup costs expended in cleaning up a
contaminated site. 42 U.S.C. § 9607(a); see also Agere Sys.,
Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 216-18
(3d Cir. 2010) (summarizing the cost recovery mechanisms
provided under CERCLA, including § 107(a)).
25
a “response cost.” See Durfey v. E.I. DuPont de Nemours &
Co., 59 F.3d 121, 124-25 (9th Cir. 1995); Yslava v. Hughes
Aircraft Co., 845 F. Supp. 705, 708-09 (D. Ariz. 1993).
Regardless of the relationship between “response” and
“response cost,” the cases concluded that private party
medical monitoring is not a “response” action and so, by
definition, is neither a removal or remedial action. Durfey, 59
F.3d at 125; Yslava, 845 F. Supp. at 709.
The Navy argues that medical monitoring should
nevertheless be considered a “removal or remedial action”
under CERCLA because of that statute’s provisions
concerning the Agency for Toxic Substances and Disease
Registry (“ATSDR”). The ATSDR was created when
CERCLA was enacted in 1980, and its purpose is the
“compiling [of] health effects information[.]” 2 Susan M.
Cooke, The Law of Hazardous Waste § 12.04[2][f]. When
CERCLA was amended by the Superfund Amendments and
Reauthorization Act of 1986 (“SARA”), Congress recognized
“that inadequate attention had been given to the health effects
of contaminants found at Superfund sites[.]” Id. Thus, it
expanded the role of the ATSDR. Id. § 12.05[2][h].
The charge given to the agency is to “effectuate and
implement [CERCLA’s] health related authorities[.]” 42
U.S.C. § 9604(i)(1). It is expressly authorized to “establish[]
a health surveillance program[,]” id., and, in some instances,
the statute requires it to initiate such a program, id.§ 9604(i)(9). Health surveillance programs must include, but
are not limited to, “periodic medical testing where appropriate
of population subgroups to screen for diseases for which the
population or subgroup is at significant increased risk … [,
and the programs further include] a mechanism to refer for
26
treatment those individuals within such population who are
screened positive for such diseases.” Id.
Agreeing with the Navy, the District Court said that,
because those CERCLA provisions relating to the ATSDR
provided for a program that included “both periodic medical
testing … and a mechanism to refer for treatment anyone who
needs medical attention[,]” the medical monitoring requested
by the Giovannis was a “removal” or “remedial” action as
defined by the statute. (G.J.A. at 112 n.6.) The Court did not
explore the connection, though, between CERCLA’s
definitions of “removal” or “remedial” action and its
provisions relating to the ATSDR. We think that connection
depends on the distinction between private party actors and
state actors.
The United States Court of Appeals for the Ninth
Circuit has thoroughly considered whether the ATSDR’s
health “surveillance activit[ies] … [are] removal or remedial
action[s] entitled to the protection of [§ 113(h)].” Hanford
Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469, 1475
(9th Cir. 1995). It decided that they are, explaining that the
pertinent statutory provision – § 104 – was titled “response
authorities,” and “Congress gave no indication that the
universe of CERCLA response authorities cannot include
both the health and non-health related activities found in
[§ 104.]” Id. at 1475-76. The court noted that other parts of
§ 104 also contemplated actions of public health authorities
being “response measures,” because the President was
authorized to “take any other response measure … necessary
to protect the public health or welfare or environment.” Id. at
1476 (quoting 42 U.S.C. § 9604(a)(1)). It thus concluded that
“Congress’ single reference to ATSDR authorities as ‘health
27
related’ should be read narrowly as a means to distinguish
between different types of response authorities, rather than
interpreted broadly as an effort to differentiate ATSDR health
… surveillance activity from response actions protected by
[§ 113(h)].”15 Id.
Significantly, the court did not believe that its
conclusion undermined its previous decisions in Durfey and
Price, which “held that private party medical monitoring
activities, initiated and coordinated independently of ongoing
CERCLA cleanup efforts, were not … removal or remedial
actions.” Id. at 1477. It said that the reasoning in those cases
did “not apply to health … surveillance actions engaged in by
a governmental agency pursuant to explicit CERCLA
provisions.” Id. (emphasis added). It further said that its
interpretation was “rooted in the distinction Congress drew
between public and private efforts to monitor the public
health.” Id. at 1478. Congress used the ATSDR to “expand
the role [of] government health … surveillance[,]” but did
nothing to add back in the personal rights to recovery of
medical expenses (such as for private party medical
monitoring) that were intentionally excised from original
drafts of CERCLA. Id. at 1479.
15
The court limited its holding to the specific ATSDR
activities under review because it noted that not all ATSDR
activities should qualify “per se [as] removal or remedial
actions for purposes of CERCLA’s Timing of Review
provision.” Hanford, 71 F.3d at 1476. That is because some
of the agency’s duties would not ordinarily constitute
response actions, such as the ATSDR’s general duties to
maintain various health-related registries and inventories. Id.at 1476 n.9.
28
The court bolstered its conclusion that ATSDR’s
health surveillance activities are response actions with three
reasons related to CERCLA’s remedial purposes. Id. at 1481.
First, Congress has made it clear, especially with the
enactment of SARA, that one of CERCLA’s goals is to
protect the public health. Id. Second, there are many
instances in which CERCLA privileges governmental efforts
over private party efforts. Id. Finally, recognizing that the
ATSDR’s activities constitute “removal or remedial action” is
most consistent with Congress’s effort to integrate the
agency’s functions into NPL cleanups. Id. at 1474, 1481-82.
The analysis provided by the Ninth Circuit Court in
Hanford is persuasive. We adopt it, with the conclusion that
CERCLA distinguishes between private party medical
monitoring activities and government-led health
16
surveillance. Private party medical monitoring falls outside
of the definition of response action, but government-led
monitoring does not.17
16
The Ninth Circuit also determined “that the ATSDR
health … surveillance activities [at the specific site in
question] satisfy the definition of removal action.” Hanford,
71 F.3d at 1477. We do not need to, and thus do not, decide
that here. Although the classification of response actions as
either removal or remedial actions may have significant legal
and practical consequences under the Act in other
circumstances, it is enough here for us to conclude that the
ATSDR’s health surveillance activities are response actions.
17
The concurrence disagrees that the distinction
between private actors and government actors makes a
29
Accordingly, the Giovannis’ and Palmers’ requests for
an order compelling the Navy to pay for the costs associated
with private party medical monitoring is relief that falls
outside of CERCLA’s definition of “removal or remedial
action.” And that counsels in favor of concluding that their
requests do not, under § 113(h), constitute a jurisdiction-
stripping challenge to an ongoing CERCLA response action.
b. Health Assessment or Health
Effects Study
We turn next to the Giovannis’ and Palmers’ requests
for a government-led health assessment or health effects
study. As a general matter, a health study would not fit the
difference in the analysis of whether a claim for relief
constitutes a challenge. Concur. Slip Op. at 3-4. Our
colleague stresses that the statutory language focuses on
“actions” and not “actors.” Id. We take a different message
from the existence of the ATSDR provisions, which create a
framework for government actors to conduct medical
monitoring and health effect studies. 42 U.S.C. § 9604(i).
Those statutory provisions show that Congress has made a
distinction between government action and private action.
When a court orders the government to do something –
particularly something that, like a health effects study
contemplated by the ATSDR provisions, is already regulated
by statute – separation-of-powers issues may be implicated
that would not be when ordering action from a private party.
That seems a pertinent factor to consider in determining
whether a claim interferes with the work of the government in
a cleanup.
30
statute’s definition of removal action for the same reasons
that private party medical monitoring falls outside that
definition. References to “assess[ing]” or “evaluat[ing]” refer
to “the release or threat of release of hazardous substances,”
not the study of the effects of contaminants on human health.
42 U.S.C. § 9601(23). And the definition’s inclusion of
“actions as may be necessary to prevent, minimize, or
mitigate damage to the public health or welfare” does not
contemplate a generic health study because such a study does
not align with the subsequent list of activities directly related
to the evaluation of hazardous waste in connection with its
immediate removal. Id. Nor does the text of the statute
support classifying a generic health study as a remedial
action. Such a study is not taken “to prevent or minimize the
release of hazardous substances,” and it does not necessarily
relate to conducting an evaluation or assessment to promote
environmental remediation efforts. 42 U.S.C. § 9601(24).
But the Giovannis and Palmers are not requesting a
generic health study. They want a government-led health
assessment or health effects study. One of the things the
ATSDR is charged with “effectuat[ing] and implement[ing]”
is the completion of a “health assessment” within one year of
an EPA proposal to list a site on the NPL.18 Id. § 9604(i)(1),
18
The statute defines the term “health assessment” to
mean:
preliminary assessments of the potential risk to
human health posed by individual sites and
facilities, based on such factors as the nature
and extent of contamination, the existence of
potential pathways of human exposure
31
(6)(A). The purpose of that assessment is “to assist in
determining whether actions … should be taken to reduce
human exposure to hazardous substances from a facility and
whether additional information on human exposure and
associated health risks is needed and should be acquired[.]”
Id. § 9604(i)(6)(G). Among the ways to acquire that
information is “conducting epidemiological studies[.]” Id. If
such a health assessment leads the ATSDR Administrator to
conclude “that there is a significant increased risk of adverse
health effects in humans from exposure to hazardous
substances[,]” then the statute requires the ATSDR to set up a
health surveillance program for the affected population. Id.
§ 9604(i)(9).
As discussed above with respect to private party
medical monitoring, Congress differentiated between
government-led and private efforts to assess and protect the
(including ground or surface water
contamination, air emissions, and food chain
contamination), the size and potential
susceptibility of the community within the
likely pathways of exposure, the comparison of
expected human exposure levels to the short-
term and long-term health effects associated
with identified hazardous substances and any
available recommended exposure or tolerance
limits for such hazardous substances, and the
comparison of existing morbidity and mortality
data on diseases that may be associated with the
observed levels of exposure.
42 U.S.C. § 9604(i)(6)(F).
32
public health following a release or threat of release of
hazardous waste. Hanford, 71 F.3d at 1478. Government-led
health studies, unlike generic health studies conducted by
private parties, are response actions deemed by Congress as
necessary for evaluating the release or threatened release of
hazardous substances. See id. at 1475, 1477 (concluding that
ATSDR health assessment activities are removal or remedial
actions for purposes of § 113(h)). That conclusion comports
with Congress’s goal of protecting the public health when it
enacted SARA, as well as being consistent with CERCLA’s
favoring of governmental efforts over private party efforts,
and Congress’s effort to integrate the ATSDR’s functions into
the cleanups of Superfund sites. Id. at 1481-82.
Here, unlike their requests for private party medical
monitoring, the Giovannis’ and Palmers’ requests that the
District Court order the Navy to conduct a health assessment
or health effects study, including blood testing, do constitute
removal or remedial actions for purposes of § 113(h).
Because the ATSDR has authority to conduct health
assessments on behalf of the government at contaminated
facilities, and those activities are response actions under
CERCLA, the Giovannis’ and Palmers’ demand that another
agency of the government conduct such a study would, if
granted, interfere with a response action under CERCLA.
Therefore, we agree with the District Court’s
determination that the requested relief mandating that the
Navy perform a health assessment or health effects study is a
33
response action under CERCLA, which suggests that it is a
challenge under § 113(h).19
19
The concurrence would not construe the requests
for a health effects study as a response action because
§ 107(a)(4)(A) refers to “removal or remedial action” and
§ 107(a)(4)(D) separately refers to “any health assessment or
healthy effects study carried out under [the ATSDR
provisions.]” Concur. Slip Op. at 4-6. According to the
concurrence, § 107(a)(4)(D) would be “superfluous” if a
health effect study were to be construed as a removal or
remedial action. Id. at 5. But, as the concurrence itself
highlights, § 107(a)(4)(D) was grafted onto the statute as part
of the SARA amendments to CERCLA. Id. The addition of
§ 107(a)(4)(D) suggests that Congress wanted to emphasize
that CERCLA liability encompassed the costs of government-
led health effects studies; it does not demonstrate
unambiguous congressional intent to remove government-led
health effects studies from the ambit of all remedial or
removal actions. Cf. Hanford, 71 F.3d at 1479 (“[W]e
decline to read the failure of Congress to accomplish the
seamless integration of ATSDR provisions with the other
response authorities found under sub-section [107(a)(4)] as
compelling proof of Congress’ intent to distinguish ATSDR
activities from removal and remedial actions.”). Had
Congress enacted § 107(a)(4)(A) and § 107(a)(4)(D) at the
same time, then the concurrence’s statutory structure
argument might have more persuasive force. But the timing
of the SARA amendments significantly undermines the
position pressed by our colleague. Moreover, the Ninth
Circuit has been characterizing ATSDR activities as removal
and remedial actions for nearly a quarter century. Hanford,
71 F.3d at 1479-80. If Congress thought that the courts had
34
2. Form of Relief Requested
When assessing whether a claim challenges an
ongoing cleanup effort, courts have also distinguished among
forms of relief as they affect the defending party.20
Generally, requests for injunctive relief that relate in any way
to pending response actions are viewed as challenges under
§ 113(h). If a plaintiff demands that a defendant engage in
activities that could have been a part of the cleanup plan, then
it is a challenge to the selected response actions. See, e.g.,
McClellan, 47 F.3d at 329-30 (concluding that injunctive
relief injecting new requirements into a CERCLA cleanup
effort would clearly constitute a challenge because it would
interfere with those ongoing activities). In contrast, requests
that require little more of the defendant than the expenditure
of money are generally not considered to be “challenges”
under § 113(h). See, e.g., Beck v. Atl. Richfield Co., 62 F.3d
1240, 1242-43 (9th Cir. 1995) (concluding that a request for
compensatory damages for crop loss, lost profits, and
property devaluation due to water contamination was not a
challenge because the damages claim did not interfere with
the existing remedial plan).
gotten it wrong, we hope it would have said something by
now.
20
We note again that § 113(h) only applies when the
response actions at issue were selected under § 104, which
authorizes the President to take certain actions, or when the
order implicated was issued under § 106(a), which refers to
additional actions the President may take.
35
But the adjectives “injunctive” and “monetary” are
descriptors, not by themselves reasoned conclusions. The
effect that the sought-for relief has on the cleanup is what
must be determinative, not the label a party or court uses to
describe the claim for relief. For example, a request that the
defendant pay damages could constitute a challenge under
§ 113(h) if it directly conflicts with the implementation of the
cleanup plan. See Pakootas v. Teck Cominco Metals, Ltd.,
646 F.3d 1214, 1221-22 (9th Cir. 2011) (construing a private
plaintiff’s request for civil penalties resulting from the
defendant’s noncompliance with an EPA administrative order
as a challenge to an ongoing cleanup because the EPA had
chosen not to sue to enforce its order and was using the
leverage of civil penalties to ensure the defendant completed
the remediation). And, conversely, a request for injunctive
relief that has no effect on an ongoing cleanup is unlikely to
constitute a challenge. See ARCO Envtl. Remediation, L.L.C.
v. Dep’t of Health & Envtl. Quality of Mont., 213 F.3d 1108,
1113, 1115 (9th Cir. 2000) (holding that injunctive relief
ordering the release of documentation to the public about a
contaminated site does not challenge a pending cleanup effort
because access to information “does not alter cleanup
requirements or environmental standards” and does not
“terminate or delay the … cleanup”). We must consider the
form of relief that the plaintiffs request and its impact on the
defendant to determine whether the requested relief
challenges an ongoing cleanup.
a. Private Party Medical
Monitoring
Focusing on the specific relief requested here, payment
for the costs of a private party medical monitoring program
36
does not appear to be a challenge under § 113(h). The prayer
for relief at the end of each complaint expressly states that the
Giovannis and Palmers want the Navy to provide “the costs
of medical monitoring[.]” (G.J.A. at 27; P.A. at 16.) In their
briefing, the Giovannis and Palmers insist that the relief
“would simply impose the costs of setting up a medical
monitoring trust fund on the [Navy.]” (Giovannis’ Opening
Br. at 10; Palmers’ Reply Br. at 9-10.) Thus, according to
both the Giovannis’ and Palmers’ characterization of the
relief that they seek with respect to medical monitoring, the
Navy need do nothing but fund a trust. That counsels in favor
of concluding that the relief associated with the Giovannis’
and Palmers’ medical monitoring claim is not a challenge
under § 113(h). This is especially so because, as noted
earlier, the private party medical monitoring program the
Giovannis’ and Palmers’ want the Navy to fund is not a
removal or remedial action.
b. Health Assessment or Health
Effects Study
The government-led health study requested by the
Giovannis and Palmers, when viewed through the form-of-
relief lens, appears in contrast to be a challenge under
§ 113(h) to ongoing response efforts at the Naval Facilities.
That relief amounts to a demand that the Navy take on
additional efforts related to cleaning up the contamination at
those Superfund sites. Although the facts in this case differ
from those in Hanford, which involved an injunction
compelling the ATSDR to implement a health surveillance
program, the relief requested here is analogous because the
government is being asked to conduct a response action that
the ATSDR may still be contemplating. And like the
37
plaintiffs in McClellan, who wanted the court to impose
additional RCRA reporting and permitting requirements upon
an ongoing cleanup, the requested injunctive relief here
would interfere with the ongoing cleanup efforts at the Naval
Facilities because it would modify or replace the existing
remedial plan. The request for a government-led health
assessment or health effects study is therefore effectively a
request for injunctive relief, which counsels in favor of
concluding that it is barred as a challenge under § 113(h).
3. Impact on Ongoing Cleanup Efforts
Another consideration is whether, on the whole, there
is some additional reason to think that a given request for
relief will conflict with, impact, or otherwise interfere with an
ongoing cleanup effort. See Boarhead, 923 F.2d at 1023(indicating that § 113(h) bars lawsuits that will “interfere
with” ongoing remediation activities); see also Cannon, 538
F.3d at 1335 (stating that § 113(h) precludes lawsuits that will
“interfere[] with the implementation of a [selected] CERCLA
remedy” (citation omitted)).
a. Private Party Medical
Monitoring
It seems unlikely that the Giovannis’ and Palmers’
requests for the costs of private party medical monitoring will
conflict with, impact, or otherwise interfere with the ongoing
cleanup efforts at the Naval Facilities. It will “in no way
impede[] the progress of the government’s ongoing
assessment and cleanup” at the contaminated site. Yslava,
845 F. Supp. at 710; see also Durfey, 59 F.3d at 126 (holding
that the plaintiffs’ claim for private party medical monitoring
38
costs under state tort law was not a “challenge” to an ongoing
CERCLA cleanup under § 113(h)). Moreover, an order
requiring the Navy to pay a sum of money to fund a private
party medical monitoring program will “not in any manner …
interfere with the ongoing activities of the ATSDR.” Boggs
v. Divested Atomic Corp., No. C-2-90-840, 1997 WL
33377790, at *6 (S.D. Ohio Mar. 24, 1997). Although any
money the Navy would provide to fund private party medical
monitoring could divert funds from the cleanup efforts at the
Naval Facilities, that is insufficient, standing alone, to render
such relief a challenge under § 113(h). See, e.g., El Paso Nat.
Gas, 750 F.3d at 880 (“[E]very action that increases the cost
of a cleanup or diverts resources or personnel from it does not
thereby become a ‘challenge’ to the cleanup.” (quoting
McClellan, 47 F.3d at 330)).
The District Court nevertheless held that the medical
monitoring claims are barred by § 113(h) because they
challenge the ongoing cleanups at the Naval Facilities. In so
holding, it relied heavily on our decision in Boarhead. We
said in that case that “Congress enacted CERCLA so that the
EPA would have the authority and the funds necessary to
respond expeditiously to serious hazards without being
stopped in its tracks by legal entanglement before or during
the hazard clean-up.” 923 F.2d at 1019. We also said that the
jurisdictional bar in § 113(h) was “designed to prevent time-
consuming litigation from delaying the prompt clean-up of
these [contaminated] sites.” Id. Notably, we described
“disputes about who is responsible for a hazardous site, what
measures actually are necessary to clean-up the site and
remove the hazard[,] or who is responsible for its costs” as
lawsuits best left for “after the site has been cleaned up.” Id.
39
The District Court here concluded that requiring the
Navy to pay for medical monitoring would interfere with the
ongoing cleanup efforts because it “would necessarily entail
deciding a ‘dispute[] about who is responsible for [the]
hazardous site’ and ‘who is responsible for its costs.’”
(G.J.A. at 113 (alterations in original) (internal citations
omitted).) The Court said that those “are decisions that
Congress determined ‘should be dealt with after the site has
been cleaned up.’” (G.J.A. at 113 (quoting Boarhead, 923
F.2d at 1019).)
That reliance on Boarhead is understandable but, in
this instance, misplaced. The plaintiff in that case was
“challenging the EPA’s ability to conduct an [environmental]
study pursuant to § 104 of CERCLA before the EPA
perform[ed] an appropriate review[.]” Boarhead, 923 F.2d at
1018. The plaintiff was thus directly interfering with the
EPA’s ability to conduct a cleanup because it was seeking
injunctive relief that would certainly have altered the existing
remedial plans. The facts here are quite different. The
Giovannis and Palmers want the Navy to fund a trust to cover
the costs of private party medical monitoring rather than to
take some additional action. And it is not clear that there
would be any litigation about who is responsible for the
contamination or the costs of the cleanup. The Navy freely
admits that it “generated hazardous waste” and “released
PFOA and PFOS” contaminants at the Naval Facilities.
(Answering Br. at 11, 13.)
Finally, the District Court specifically distinguished
the conclusions in Durfey and Yslava that private party
medical monitoring claims are not challenges under § 113(h)
because, in its view, those cases failed to explain why state
40
law medical monitoring claims are not disputes about who is
responsible and hence, under § 113(h), should be dealt with
after the cleanup is complete. But we should not expect a
discussion of “responsibility” for “necessary costs of
response” and “response actions” in a case in which there has
already been a determination that the requested remedy is not
a “response” or “response cost.” Furthermore, Durfey
involved a government-owned property that was
contaminated with radioactivity during the development of
the atomic bomb in the 1940s, so there was likely no dispute
that the government was responsible for the contamination.
Thus, the District Court’s conclusion that the Giovannis’ and
Palmers’ requests for the costs of private party medical
monitoring were challenges for purposes of § 113(h) is, in our
estimation, without adequate support.
b. Health Assessment or Health
Effects Study
The story is different for a government-led health
study. There is reason to believe that the Giovannis’ and
Palmers’ requests that the Navy conduct a health assessment
or health effects study will conflict with, impact, or otherwise
interfere with the ongoing cleanup efforts at the Naval
Facilities. That relief “seeks to improve on the CERCLA
cleanup” by adding work to the removal or remedial action
already selected by the federal government at those facilities.
El Paso Nat. Gas, 750 F.3d at 880-81 (quoting McClellan, 47
F.3d at 330). Ordering such relief necessarily preempts the
federal government’s “ability to choose the best remedial
action among a panoply of remedial alternatives that have
been analyzed in a completed remedial investigation and
feasibility study according to criteria articulated in
41
CERCLA,” id. at 881, especially with respect to those
provisions relating to the ATSDR’s powers and obligations.
Thus, the District Court’s conclusion that the Giovannis’ and
Palmers’ requests for a government-led health study are
challenges for purposes of § 113(h) is supported by the case
law.
In sum, we conclude that the Giovannis’ and Palmers’
requests for funds to establish a private party medical
monitoring program are not challenges for purposes of
§ 113(h),21 but their requests for an order mandating that the
Navy conduct a health assessment or health effects study are.
We therefore lack jurisdiction to review those latter requests
at this time.
21
That conclusion is consistent with our decisions in
the In re Paoli cases. See In re Paoli R.R. Yard PCB Litig.,
916 F.2d 829 (3d Cir. 1990) (“Paoli I”); In re Paoli R.R. Yard
PCB Litig., 35 F.3d 717 (3d Cir. 1994) (“Paoli II”); In re
Paoli R.R. Yard PCB Litig., 113 F.3d 444 (3d Cir. 1997)
(“Paoli III”). In those cases, despite ongoing cleanup efforts
by the EPA, we said that the plaintiffs could move forward
with their state law claims for medical monitoring. See, e.g.,
Paoli III, 113 F.3d at 449 n.2; Paoli II, 35 F.3d at 785-95.
Although we did not discuss § 113(h) in those cases, if we
had reached a conclusion different than we do here, it would
have undermined our jurisdiction to have decided them. See
also Clinton Cty. Comm’rs v. EPA, 116 F.3d 1018, 1025 (3d
Cir. 1997) (en banc) (concluding that § 113(h)’s bar to
challenges of ongoing EPA remedial efforts strips the federal
courts of subject matter jurisdiction).
42
4. The Palmers’ Argument Under § 120
of CERCLA
Notwithstanding any argument under § 113(h), the
Palmers argue that the cleanup activities at the federal Naval
Facilities were initiated under § 120 rather than § 104, and
thus that § 113(h) is inapplicable to bar their state-law claim.
The Navy counters that § 120 merely describes additional
procedures unique to federal land, and does not confer any
authority outside of that already granted in § 104. We agree
with the Navy.
Section 113(h), by its plain text, bars “challenges to
removal or remedial action selected under section [104] of
[CERCLA.]” 42 U.S.C. § 9613(h). Section 104 broadly
prescribes the applicable response authorities available under
the statutory scheme. See 42 U.S.C. § 9604. Meanwhile,
§ 120, which is titled “Federal facilities[,]” describes the
application of CERCLA’s provisions to federal facilities.
Our analysis of a statute begins, of course, with the
text. Haberle, 885 F.3d at 178. Section 104 states that “the
President is authorized to act … to remove or arrange for the
removal of, and provide for the remedial action relating to …
[a] hazardous substance, pollutant, or contaminant at any time
…, or take any other response measure … [he] deems
necessary to protect the public health or welfare or the
environment.” 42 U.S.C. § 9604(a)(1). That authority is
granted in the broadest terms. There are a number of
references to a “facility” or “facilities,” but there is no
indication that Congress meant to distinguish between federal
and non-federal facilities, or between Superfund and non-
Superfund sites. Furthermore, § 101(9) provides a definition
43
of the term “facility” and also fails to distinguish between the
federal and non-federal, or the Superfund and non-Superfund,
nature of a site.22 Thus, the text of § 104 authorizes the
President to take response actions at any facility with respect
to any hazardous release, including a federal facility listed on
the NPL.
Section 120, which was added to CERCLA in 1986,
see Pub. L. No. 99-499, 100 Stat. 1613 (1986) (codified at 42
U.S.C. § 9601 et seq.), has ever since been a source of
confusion because of its imprecise language. It states that
every “department, agency, and instrumentality of the United
States … shall be subject to, and comply with, [CERCLA] in
the same manner and to the same extent, both procedurally
and substantively, as any nongovernmental entity, including
liability under section [107] of [the Act].” 42 U.S.C.
§ 9620(a)(1). It then provides a number of specific duties and
22
Section 101(9) defines “facility” to mean:
(A) any building, structure, installation,
equipment, pipe or pipeline (including any pipe
into a sewer or publicly owned treatment
works), well, pit, pond, lagoon, impoundment,
ditch, landfill, storage container, motor vehicle,
rolling stock, or aircraft, or (B) any site or area
where a hazardous substance has been
deposited, stored, disposed of, or placed, or
otherwise come to be located; but does not
include any consumer product in consumer use
or any vessel.
42 U.S.C. § 9601(9).
44
procedures for the Administrator of the EPA with respect to
federal facilities. See generally id. § 9620. One of the
subsections of § 120 says that “no authority vested in the
Administrator under this section may be transferred, by
executive order of the President or otherwise, to any other
officer or employee of the United States or to any other
person.” Id. § 9620(g). While that suggests that some
authority has been granted to the federal government under
§ 120, that does not mean that the authority is necessarily
independent from, and did not otherwise already exist in
some form, under § 104 or some other section of CERCLA.
Section 120 is best understood as clarifying the application of
already existing CERCLA authority, like § 104, to federal
facilities.23
23
An executive order from the person authorized to
act under § 104 – the President of the United States –
supports that reading. Specifically, Executive Order 12,580
demonstrates that the President and his staff thought
CERCLA conferred authority for him to initiate response
actions under §§ 104, 113, 117, 119, 121, and 126 of that
statute, because he delegated the functions vested under those
provisions to various federal departments and agencies.
Exec. Order No. 12,580, 52 Fed. Reg. 2923, 2924-25 (Jan. 23,
1987). He did not distinguish between federal facilities and
non-federal facilities in that delegation of authority. See id. at
2924 (delegating CERCLA functions in Section 2(e)(1) of the
Order). Although the Palmers read Section 2(e)(1) of the
Order, which is limited to facilities not on the NPL, as
suggesting that § 104(a) only granted the President authority
to act with respect to federal facilities not listed on the NPL,
that is not the most logical reading. A better reading is that
the President simply did not delegate the full scope of his
45
Other courts have similarly concluded that § 120 is not
an independent and wholly separate grant of authority from
§ 104 for the cleanup of federal facilities. In Werlein v.
United States, the court held that a remedial action at a
federal facility was taken “under section [104], subject to the
requirements of section [120].” 746 F. Supp. 887, 892 (D.
Minn. 1990), vacated in part on other grounds, 793 F. Supp.
898 (D. Minn. 1992). It reasoned that § 104(a)(1) grants the
President response authority, which he delegated in Executive
Order 12,580 to various agencies, both with respect to private
land and federal land. Id. at 891. The court then explained
that § 120 “provides a road map for application of CERCLA
to federal facilities[,]” and that there would be little reason for
the President to delegate response authority to the Secretary
of Defense “[i]f section [104] did not apply to federal
facilities.” Id. at 891-92. Although it acknowledged that
some aspects of § 120 could be read to suggest it was
providing a “separate and distinct” source of cleanup
authority for federal facilities, the court said it was better to
consider § 120 as a mere set of “separate procedures for
federal facility cleanups[.]” Id. at 892; see also Heart of Am.
Nw. v. Westinghouse Hanford Co., 820 F. Supp. 1265, 1279
authority in the Order, since NPL sites presumably deserve
greater attention at the highest levels of government. That
reading is supported by Section 2(e)(2) of the Order, which
reads similarly to Section 2(e)(1), except that it makes no
reference to whether the federal facility is listed on the NPL.
See id. at 2924-25. The Order contemplates that § 104
included authority to act with respect to federal facilities, both
NPL and non-NPL.
46
(E.D. Wash. 1993) (holding that an environmental cleanup at
a federal facility listed on the NPL was conducted under
§ 104, not § 120).24
Section 120 does create unnecessary tension with a
logical reading of § 104, but, as we have indicated on
numerous occasions, CERCLA is not the Mona Lisa of
statutes. United States v. Rohm & Hass Co., 2 F.3d 1265,
1270 n.6 (3d Cir. 1993) (“Numerous courts have complained
about the inartful, confusing, and ambiguous language and
the absence of useful legislative history [of CERCLA].”),
overruled on other grounds by United States v. E.I. DuPont
de Nemours & Co., 432 F.3d 161 (3d Cir. 2005) (en banc);
Lansford-Coaldale Water Auth. v. Tonolli Corp., 4 F.3d 1209,
1221 (3d Cir. 1993) (“CERCLA … [is] notorious for its lack
of clarity and poor draftsmanship[.]”); United States v. Alcan
Aluminum Corp., 964 F.2d 252, 258 n.5 (3d Cir. 1992)
(“[T]he statute is riddled with inconsistencies and
redundancies.”). The tension is not so great as to warrant
interpreting the statutory scheme in a manner that contravenes
the likely intent of Congress. Adopting the Palmers’
interpretation of CERCLA would lead to the odd result that
litigants could not challenge ongoing cleanup work at private
24
We recognize, however, that not every court agrees
with that conclusion. In Fort Ord Toxics Project, Inc. v.
California E.P.A., the Ninth Circuit held that, while
“troubling[,]” it is “most reasonable” to interpret §§ 104 and
120 as separate grants of authority. 189 F.3d 828, 832 (9th
Cir. 1999). We are not persuaded by that interpretation, and
it is notable that no other circuit court has adopted Ford Ord’s
reasoning.
47
facilities but they could run rampant with challenges to the
same at federal Superfund sites.
We therefore agree with the District Court that the
EPA’s cleanup efforts at the Naval Facilities have been
undertaken pursuant to § 104, subject to the requirements of
§ 120.25
B. Sovereign Immunity
The Navy argues that even if the Giovannis’ and
Palmers’ claims are not barred as challenges to ongoing
response actions that they must nevertheless fail because of
the government’s sovereign immunity. “As a sovereign, the
United States is immune from suit unless it consents to be
sued.” White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456
(3d Cir. 2010). “Its consent to be sued must be
‘unequivocally expressed,’ and the terms of such consent
define the court’s subject matter jurisdiction.” Id. (quoting
25
The parties dispute whether the District Court was
required to remand the claims to state court. Because we
have concluded that § 113(h) does not bar the medical
monitoring claims, there is federal jurisdiction over those
claims and remand to state court is unnecessary. Section
113(h) did not bar filing those claims initially in state court.
Nor did § 113(b), because the claims arise under state law,
not CERCLA. We will, however, affirm the District Court’s
decision to dismiss the demands for a health effects study
because those demands constitute challenges to the Navy’s
ongoing cleanup, and thus neither we nor the state courts have
jurisdiction to consider those claims at this time.
48
United States v. Mitchell, 445 U.S. 535, 538 (1980)).
Importantly, even when there is a statutory waiver of
immunity, “[w]e should not take it upon ourselves to extend
the waiver beyond that which Congress intended.” Id.(quoting United States v. Kubrick, 444 U.S. 111, 117-18
(1979)). The Giovannis and Palmers contend that the Navy,
as an agency of the United States, has waived its sovereign
immunity pursuant to § 6001(a) of RCRA and pursuant to
§ 120(a)(1) of CERCLA. The Navy disagrees, and argues
that there is no unequivocal waiver of its sovereign immunity.
We think the Giovannis and Palmers have the better of the
argument because § 6001(a) of RCRA unequivocally waives
sovereign immunity to state law claims for injunctive relief.26
26
The Navy did not, however, waive its sovereign
immunity under § 120(a)(1) of CERCLA. That provision
states that “[e]ach department, agency, and instrumentality of
the United States … shall be subject to, and comply with,
[CERCLA] in the same manner and to the same extent, both
procedurally and substantively, as any nongovernmental
entity[.]” 42 U.S.C. § 9620(a)(1). Another subsection,
however, says that “[s]tate laws concerning removal and
remedial action, including State laws regarding enforcement,
shall apply to removal and remedial action at facilities owned
or operated by a department, agency, or instrumentality of the
United States or facilities that are the subject of a deferral
under subsection (h)(3)(C) of this section when such facilities
are not included on the National Priorities List.” Id.§ 9620(a)(4) (emphasis added). The Naval Facilities are
listed on the NPL, and thus the federal government has not
exposed itself to liability under state law as it relates to its
response efforts at those sites. See Warminster Twp. Mun.
Auth. v. United States, 903 F. Supp. 847, 850 (E.D. Pa. 1995)
49
Section 6001(a) of RCRA provides that each
department or agency of the federal government dealing with
solid or hazardous wastes “shall be subject to, and comply
with, all Federal, State, interstate, and local requirements,
both substantive and procedural[.]” It goes on to state that
“[t]he Federal, State, interstate, and local substantive and
procedure requirements referred to in this subsection include,
but are not limited to, all administrative orders and all civil
and administrative penalties and fines[.]” 42 U.S.C.
§ 6961(a). Moreover, it provides that “[t]he United States
hereby expressly waives any immunity otherwise applicable
to the United States with respect to any substantive or
procedural requirement (including, but not limited to, any
injunctive relief, administrative order or civil or
administrative penalty or fine …).” Id. That waiver is wordy
but the upshot is that the United States has surrendered its
immunity with respect to the enforcement of federal, state,
and local environmental laws due to contamination at the
hands of the government, when such enforcement involves
injunctive relief. Id. The RCRA waiver does not, however,
suggest that the government has waived its sovereign
immunity for suits by private parties for money damages.
The question thus becomes whether a medical monitoring
claim is more appropriately classified as a request for money
damages or for injunctive relief.
The Giovannis and Palmers characterize their
requested relief as an injunction ordering the Navy to fund a
trust fund that will pay for private party medical monitoring.
(“[T]he waiver of sovereign immunity described in CERCLA
cannot operate to expose the Government to liability under
the HSCA [for facilities on the NPL].”).
50
That led the District Court to logically concluded that the
Giovannis and Palmers lawsuits sought “injunctive relief to
compel medical monitoring[.]” (G.J.A. at 112.) Although the
case law on that issue is less than clear, we think the better
approach on this record is to classify the relief as injunctive.
The characterization of medical monitoring appears to
come up most often in mass exposure cases where putative
class plaintiffs seek certification of an injunctive relief class
under Federal Rule of Civil Procedure 23(b)(2). See, e.g.,
Gates v. Rohm & Haas Co., 655 F.3d 255, 264 (3d Cir. 2011)
(addressing putative Rule 23(b)(2) class seeking costs for
medical monitoring); Barnes v. Am. Tobacco Co., 161 F.3d
127, 142 (3d Cir. 1998) (same). In that context, we have
acknowledged that “[m]edical monitoring cannot be easily
categorized as injunctive or monetary relief,” Gates, 655 F.3d
at 262, but have not squarely resolved the issue, see, e.g., id.
at 263 (declining to reach issue because the district court
denied class certification “for reasons unrelated to the
injunctive or monetary nature of the relief sought”). See also
Barnes, 161 F.3d at 151 (recognizing that medical monitoring
claims can be brought “at law or in equity depending on the
type of relief sought”).
We have also said that “[i]f plaintiffs seek relief that is
a disguised request for compensatory damages, then the
medical monitoring claim can only be characterized as a
claim for monetary damages.” Id. (quoting Arch v. Am.
Tobacco Co., Inc., 175 F.R.D. 469, 483 (E.D. Pa. 1997)). “A
plaintiff cannot transform a claim for damages into an
equitable action by asking for an injunction that orders the
payment of money.” Jaffee v. United States, 592 F.2d 712,
715 (3d Cir. 1979). On the other hand, “if plaintiffs seek the
51
establishment of a court-supervised medical monitoring
program through which the class members will receive
periodic medical examinations, then plaintiffs’ medical
monitoring claims can properly be characterized as a claim
seeking injunctive relief.” Barnes, 161 F.3d at 151 (quoting
Arch, 175 F.R.D. at 483). Under those circumstances, “the
creation of [an] expense does not necessarily remove a form
of relief from the category of equitable remedies.” Jaffee,
592 F.2d at 715. Therefore, whether a medical monitoring
claim is a request for a legal remedy or one for equitable
relief requires a case-specific analysis.
Here, we are faced with a request for medical
monitoring under HSCA. We have noted that, in Redland
Soccer Club, Inc. v. Department of the Army, “[t]he
Pennsylvania Supreme Court has endorsed awarding medical
monitoring damages as a trust fund which ‘compensates the
plaintiff for only the monitoring costs actually incurred.’”
Gates, 655 F.3d at 263 (quoting Redland Soccer, 696 A.2d
137, 142 (Pa. 1997)). That Court expressly recognized the
availability of medical monitoring relief in a claim under
HSCA. 696 A.2d at 142. It characterized the plaintiffs in that
case as having “requested equitable relief ... in the form of a
medical monitoring trust fund[.]” Id. It then explained that
the relief available for such a claim was the creation of a trust
fund through its equitable powers, not a lump sum award of
damages:
A claim for a medical monitoring trust fund is
significantly different from a claim for a lump
sum award of damages. A trust fund
compensates the plaintiff for only the
monitoring costs actually incurred. In contrast,
52
a lump sum award of damages is exactly that, a
monetary award that the plaintiff can spend as
he or she sees fit. Various courts have
advocated the trust fund approach instead of the
lump sum approach.
Id. at 142 n.6 (citations omitted).
That case is not the only one in which a state high
court concluded that the type of medical monitoring costs
sought here is best characterized as injunctive relief. The
New Jersey and Maryland Supreme Courts also agree. See
Exxon Mobil Corp. v. Albright, 71 A.3d 30, 80 (Md. 2013)
(“We note with approval the recent tendency of many courts
that award medical monitoring costs to do so by establishing
equitably a court-supervised fund, administered by a trustee,
at the expense of the defendant.”); Ayers v. Township of
Jackson, 525 A.2d 287, 314 (N.J. 1987) (“In our view, the use
of a court-supervised fund to administer medical-surveillance
payments in mass exposure cases … is a highly appropriate
exercise of the Court’s equitable powers.”).
The United States Supreme Court likewise appears to
agree that a medical monitoring claim can be something other
than a claim for money damages. In Metro-North Commuter
Railroad Company v. Buckley, 521 U.S. 424 (1997), a
railroad worker had brought suit under the Federal
Employers’ Liability Act (FELA) as a result of asbestos
exposure. Id. at 427. The worker, who was asymptomatic,
had sought a lump-sum damages award for negligent
infliction of emotional distress and for a related medical
monitoring claim. Id. at 426-27. The district court dismissed
the FELA claim because the worker had not shown evidence
53
of actual physical harm, and the court declined to address the
medical monitoring claim. Id. at 428. The Second Circuit
reversed, permitting the medical monitoring claim to proceed.
Id. at 438-39. The Supreme Court granted certiorari and in
turn reversed the Second Circuit.
The Supreme Court interpreted the Second Circuit’s
opinion as adopting the idea “that medical monitoring costs
themselves represent a separate negligently caused economic
‘injury[]’ … permitting (as tort law ordinarily permits) the
recovery of medical cost damages in the form of a lump
sum[.]” Id. at 439. With no FELA case law on point, the
Supreme Court “canvassed the state-law cases that have
considered whether the negligent causation of this kind of
harm (i.e., causing a plaintiff, through negligent exposure to a
toxic substance, to incur medical monitoring costs) by itself
constitutes a sufficient basis for a tort recovery.” Id. at 440.
The Court described that body of law as revealing “that the
cases authorizing recovery for medical monitoring in the
absence of physical injury do not endorse a full-blown,
traditional tort law case of action for lump-sum damages[.]”
Id. “Rather,” the Court observed, “those courts, while
recognizing that medical monitoring costs can amount to a
harm that justifies a tort remedy, have suggested, or imposed,
special limitations on that remedy.” Id. at 440-41. The Court
explained that the New Jersey Supreme Court had
“recommend[ed] in future cases [the] creation of ‘a court-
supervised fund to administer medical-surveillance
payments[.]’” Id. at 441 (quoting Ayers, 525 A.3d at 314).
The Supreme Court characterized the Second Circuit’s
adoption of a lump-sum damages award for medical
monitoring costs as “beyond the bounds of currently evolving
54
common law.” Id. at 440 (internal quotation marks and
citation omitted).
As it relates to the Giovannis’ and Palmers’ medical
monitoring claims under HSCA, we now join those courts
that have characterized that type of relief as primarily
equitable in nature. The Giovannis’ and Palmers’ medical
monitoring claims do not seek a lump sum of money to
compensate them for past harm. Rather, those claims seek an
order requiring the Navy to fund a trust that will cover a
prospective private party medical monitoring program. That
the Navy will have to expend money does not, in itself, make
the desired relief a demand for money damages. Jaffee, 592
F.2d at 715. We therefore conclude that the Giovannis’ and
Palmers’ medical monitoring claims are best understood as
requests for injunctive relief.27
Because RCRA waives sovereign immunity to claims
for injunctive relief, the Navy is not immune from suit for the
costs of private party medical monitoring. Accordingly, those
claims may proceed.
IV. CONCLUSION
For the foregoing reasons, we will affirm in part and
vacate and remand in part the orders of dismissal.
27
Our analysis is limited to characterizing claims for
private party medical monitoring under HSCA for purposes
of the RCRA waiver of sovereign immunity. We do not
decide today how to characterize claims for relief outside
those limited circumstances.
55
BIBAS, Circuit Judge, concurring in part and concurring in the
judgment.
I agree with the majority that the government took its re-
sponse actions at Navy facilities under § 9604, so I join part
III.A.4 of the majority opinion. I also join part III.B because I
agree with the limited holding that RCRA’s sovereign-immun-
ity waiver does not bar claims that seek a medical-monitoring
trust fund. See Maj. Op. at 55 n.27. So I concur in the judgment.
But I would adopt the D.C. Circuit’s definition of a forbid-
den “challenge,” limiting it to actions that would interfere with
a cleanup. At root, I disagree that who does an action bears on
whether that action meets CERCLA’s definitions of “removal”
or “remedial.” In other words, I am unpersuaded by the Ninth
Circuit’s decision in Hanford. While that opinion relies on leg-
islative history and remedial purpose, I would stick to the stat-
utory text. At the very least, we should adopt a single workable
test to determine what are challenges barred by § 9613(h).
Under the correct test, neither medical monitoring nor
health assessments qualify as “challenges to removal or reme-
dial action[s].” 42 U.S.C. § 9613(h). I agree with the majority
that private medical monitoring is not a challenge. But my con-
clusion would not change if the plaintiffs sought medical mon-
itoring by the government. The same is true for health assess-
ments.
I. WE SHOULD ADOPT THE D.C. CIRCUIT’S
INTERFERENCE TEST
To determine what a forbidden “challenge” is, the majority
takes a “holistic approach.” Maj. Op. at 20. It addresses each
1
of our sister circuits’ varied tests and applies them all. But
adopting divergent tests leaves district courts without a work-
able framework. Instead, we should distill the various tests into
a single one. The D.C. Circuit has already done that work for
us in El Paso Natural Gas, 750 F.3d at 880.
Adopting the other circuits’ differing tests could produce
divergent results. This case illustrates the point. The Giovan-
nis’ and Palmers’ health-assessment claims are unlikely to call
the remedial plan “into question.” Broward, 311 F.3d at 1073.
And arguably it would not “interfere with the implementation
of a CERCLA remedy” by “ ‘impact[ing] the [removal] action
selected.’ ” Cannon, 538 F.3d at 1335 (quoting Broward, 311
F.3d at 1072). At most, health assessments could later prompt
the EPA to take extra response actions if the health assessment
revealed a significant risk. 42 U.S.C. § 9604(i)(11). But layer-
ing new health measures, or even extra cleanup efforts, on top
of an existing plan is not the same as challenging the measures
already selected. On the other hand, a health assessment is “re-
lated to the goals of cleanup.” Razore, 66 F.3d at 239. Still, the
majority relies on all three of those opinions, plus El Paso. Maj.
Op. at 16-17. I do not know how district courts will untangle
this web.
Instead, I would adopt El Paso’s interference test. The D.C.
Circuit nicely synthesized our sister circuits’ varied tests into a
single framework: a claim is a challenge under § 9613(h) “if it
will interfere with a ‘removal’ or a ‘remedial action.’ ” El Paso,
750 F.3d at 880 (emphasis in original) (discussing Cannon and
Broward, among other cases). In close cases, courts must
gauge how closely “the suit [relates to] the CERCLA cleanup:
2
the more closely related, the clearer it will be that the suit is a
‘challenge.’ ” Id. And the Ninth, Tenth, and D.C. Circuits agree
that the statutory requirement of a “challenge” means “inter-
ference” or something very close to it. El Paso, 750 F.3d at
880; Cannon, 538 F.3d at 1335; see also Razore, 66 F.3d at
239-40 (finding “interfere[nce]” because the requested reme-
dies could have “halted [cleanup efforts] for ‘days or weeks’ ”).
I would simply add that “interfere” should carry its ordinary
meaning: to “obstruct[ ] or hind[er].” Interference, Black’s
Law Dictionary 831 (8th ed. 2004).
II. MEDICAL MONITORING IS NOT A RESPONSE ACTION
The majority artfully explains why private medical moni-
toring is neither a removal nor a remedial action. But I see no
reason why the quality of the action changes simply because
the actor is the government.
The Ninth Circuit’s opinion in Hanford, relied on by the
majority, is unpersuasive. Maj. Op. at 27-29. There, the Ninth
Circuit resorted too quickly to CERCLA’s legislative history
and remedial purpose. 71 F.3d at 1478-81. But CERCLA does
not distinguish governmental actors from private ones; the rel-
evant provisions say nothing about who does the cleanup. As
the majority notes, the law “gives ‘the President broad power
to command government agencies and private parties to clean
up hazardous waste sites.’ ” Maj. Op. at 14 (quoting Key Tronic
Corp. v. United States, 511 U.S. 809, 814 (1994)). And the def-
initions of “removal” and “remedial action[s]” are keyed to ac-
tions, not actors. 42 U.S.C. § 9601(23) (listing “actions” that
may need to be taken to “cleanup or remov[e] released hazard-
3
ous substances”) (emphasis added); id. § 9601(24) (“[R]eme-
dial action means those actions consistent with permanent
remedy taken instead of or in addition to removal actions.”)
(internal quotation marks omitted and emphases added).
Given the statutory text’s explicit focus on actions, not ac-
tors, I find Hanford’s focus on legislative history and purpose
unpersuasive. So I would hold that § 9613(h) does not bar a suit
seeking medical monitoring as “challenges to removal or re-
medial action.”
III. Nor Are Health Assessments Response Actions
Nor does government involvement turn health assessments
into removal or remedial actions. CERCLA explicitly distin-
guishes health assessments from response actions. The statute
allows recovery of
(A) all costs of removal or remedial action in-
curred by the United States Government or a
State or an Indian tribe not inconsistent with the
national contingency plan;
(B) any other necessary costs of response in-
curred by any other person consistent with the
national contingency plan;
(C) damages for injury to, destruction of, or loss
of natural resources, including the reasonable
costs of assessing such injury, destruction, or
loss resulting from such a release; and
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(D) the costs of any health assessment or health
effects study carried out under section 9604(i) of
this title.
42 U.S.C. § 9607(a)(4) (emphases added). Since the statute
enumerates response actions separately from health assess-
ments, the two are distinct. Any other reading renders
§ 9607(a)(4)(D) superfluous.
And subparagraph (D) was added later than (A) and (B).
Superfund Amendments and Reauthorization Act of 1986,
Pub. L. No. 99-499, § 107, 100 Stat. 1613. In fact, Congress
added subparagraph (D) at the same time that it created the
ATSDR and provided for medical monitoring and health as-
sessments. Id. §§ 107, 110. If health assessments were removal
or remedial actions, then they would already have been cov-
ered by § 9607(a)(4)(A) and (B). But health assessments were
not, so Congress added § 9607(a)(4)(D). I would give full ef-
fect to that addition.
True, there is a colorable argument that the definition of a
health assessment falls within the definition of a removal ac-
tion. Health assessments examine “the potential risk to human
health posed by individual sites and facilities.” 42 U.S.C.
§ 9604(i)(6)(F). That sounds a lot like “assess[ing], and eval-
uat[ing] the release” of, hazardous substances. Id. § 9601(23)
(defining removal actions). Still, health assessments are unlike
the other temporary measures listed in the definition of re-
moval actions, like providing security fencing or monitoring
the release of hazardous substances. They are not done at the
cleanup site itself. And the enumeration of health assessments
as distinct from removal actions in § 9607(a)(4) resolves any
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doubt. So I would hold that health assessments are neither re-
moval nor remedial actions.
Nor would a health assessment interfere with any response
action. On this record, I do not see how a health assessment
would obstruct or hinder any ongoing cleanup. Sure, it might
require the EPA to take more action if the assessment revealed
a significant risk. Id. § 9604(i)(11). And those extra actions
might include “provi[ding] alternative water supplies, tempo-
rary evacuation and housing,” all of which are listed removal
actions. Id. § 9604(23). But a health assessment is upstream
from a response action. We lack jurisdiction over challenges to
response actions only if they have been “selected.” Id.
§ 9613(h). But while an assessment may require new response
actions, it is not an attack on the response itself.
*****
In short, § 9613(h) turns on whether the action would inter-
fere with a removal or remedial action, not whether the actor
is the government. Neither medical monitoring nor health as-
sessments would interfere with an ongoing cleanup. So I would
hold that neither kind of requested relief turns a suit into a chal-
lenge.
I agree with the majority that the court-supervised medical
monitoring sought here is not a challenge and is not barred by
sovereign immunity, so I concur in part and in the judgment.
Because the majority finds that government-led health assess-
ments are challenges barred by § 9613(h), it does not address
whether sovereign immunity would bar those claims. So I too
decline to reach that question.
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