906 F.3d 94
3rd Cir.2018Background
- Two families (Giovanni and Palmer) sued the U.S. Navy in Pennsylvania state courts under the Pennsylvania Hazardous Sites Cleanup Act (HSCA) seeking (1) funding for private medical monitoring and (2) a government-led health assessment/health-effects study (including blood testing) related to PFOA/PFOS contamination at two Navy facilities on the NPL.
- The Navy removed the cases to federal court under the federal-officer removal statute and moved to dismiss, arguing CERCLA § 113(h) bars the claims as challenges to ongoing CERCLA response actions and that sovereign immunity bars suit.
- The District Court dismissed both complaints for lack of jurisdiction under CERCLA § 113(h); it concluded both the medical-monitoring and government-led study requests were challenges to ongoing cleanup and that § 104 (not § 120) authorized the cleanups.
- On appeal, the Third Circuit affirmed in part and vacated in part: it held requests for a government-led health assessment/study are barred by § 113(h), but requests for private-party medical monitoring costs are not barred and are not barred by sovereign immunity (RCRA waiver).
- The court reasoned private medical monitoring does not fall within CERCLA’s definitions of "removal" or "remedial" (and thus is not a § 113(h) challenge), while government-conducted ATSDR-type health assessments are governmental response actions protected by § 113(h).
- The court also held § 104, subject to § 120 procedures, supplies the authority for federal-facility response actions (i.e., § 120 does not displace § 104), and that RCRA § 6001(a) waives sovereign immunity for injunctive relief claims such as a court-ordered medical-monitoring trust fund.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether state-law claim seeking funding for private-party medical monitoring is a "challenge" barred by CERCLA § 113(h) | Medical monitoring is compensatory, would not alter or interfere with the CERCLA cleanup, so § 113(h) does not bar it | Such claims implicate who pays for response and would interfere with or delay cleanup; § 113(h) bars them | Not a § 113(h) challenge: private-party medical monitoring is not a CERCLA "removal" or "remedial" action and does not interfere with response efforts; claim may proceed |
| Whether request for a government-led health assessment/health-effects study is a § 113(h)-barred challenge | Plaintiffs: even a government study is not necessarily a "response" that interferes with cleanup | Navy: a court order compelling a government health assessment would be a governmental response action and would interfere with CERCLA implementation | Barred by § 113(h): government-led health assessments (ATSDR-type activities) are response actions; courts lack jurisdiction over such challenges while response actions are ongoing |
| Whether cleanups at federal facilities were undertaken under CERCLA § 120 (making § 113(h) inapplicable) or under § 104 | Palmers: § 120 governs federal facilities, so § 113(h) does not apply | Navy: § 120 clarifies application to federal facilities but does not displace § 104 authority | § 104 authorizes the response actions (subject to § 120 procedures); § 120 does not supplant § 104 for § 113(h) purposes |
| Whether sovereign immunity bars medical-monitoring claims against the United States/Navy | Plaintiffs: RCRA § 6001(a) and CERCLA § 120(a)(1) waive sovereign immunity for injunctive relief; medical-monitoring trust is equitable/injunctive | Navy: no unequivocal waiver for plaintiffs’ claims; relief is monetary so barred by sovereign immunity | RCRA § 6001(a) waives immunity for injunctive relief; the requested court-supervised medical-monitoring trust is equitable/injunctive (not a lump-sum damages award), so sovereign immunity does not bar that claim |
Key Cases Cited
- Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (U.S. 2009) (context on CERCLA’s purpose and broad remedial authority)
- Key Tronic Corp. v. United States, 511 U.S. 809 (U.S. 1994) (President’s authority under CERCLA to direct cleanup)
- Boarhead Corp. v. Erickson, 923 F.2d 1011 (3d Cir. 1991) (§ 113(h) prevents jurisdiction to delay or interfere with EPA cleanup activities)
- Hanford Downwinders Coal. v. Dowdle, 71 F.3d 1469 (9th Cir. 1995) (ATSDR governmental health-surveillance activities can be response actions)
- El Paso Nat. Gas Co. v. United States, 750 F.3d 863 (D.C. Cir. 2014) (test focusing on whether a suit "interferes with" removal or remedial action)
- Daigle v. Shell Oil Co., 972 F.2d 1527 (10th Cir. 1992) (medical monitoring is not a CERCLA removal or remedial action)
- Price v. United States Navy, 39 F.3d 1011 (9th Cir. 1994) (medical monitoring does not fit CERCLA’s removal/remedial definitions)