Last week, the United States Court of Appeals for the Third Circuit resurrected two separate lawsuits filed by residents living near the Willow Grove Naval Air Reserve Station in Horsham Township, Pennsylvania and the Naval Air Development Center in Warminster Township, Pennsylvania, which both seek to have the Navy fund medical monitoring programs for exposure to drinking water impacted by two emerging contaminants – perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) – attributable to operations at the two Naval facilities.  In two parallel cases that were joined for appeal – Giovanni et al. v. U.S. Dep’t of the Navy and Palmer et al. v. U.S. Dep’t of the Navy, 2018 WL 4702222 (3d Cir. Oct. 2, 2018) – the Third Circuit held that the residents’ claims for medical monitoring under the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”) were not barred by the Navy’s ongoing investigation and remediation at the sites under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), because a request for medical monitoring “does not interfere with or alter the ongoing cleanup efforts.”  In contrast, the Third Circuit affirmed the dismissal of the residents’ separate claim that sought to have the Navy perform a government-led health assessment or health effects study, which was barred as a challenge to the Navy’s ongoing response actions at the sites.

The key issue that the Third Circuit evaluated was whether a private party claim for medical monitoring or a claim seeking a government-led health study are “challenges to a removal or remedial action,” which are barred by Section 113(h) of CERCLA, which expressly deprives both federal and state court jurisdiction over such claims.  In general, courts have held that a lawsuit “challenges” a CERCLA removal or remedial action if the relief sought would interfere with the implementation of the cleanup at a site, such as altering the method or scope of the remediation.

The Third Circuit looked at three primary considerations to assess whether the residents’ claims were “challenges to a removal or remedial action” under CERCLA Section 113(h), and focused on whether the requested relief: (1) is within the definitions of a “removal” or “remedial” action; (2) would compel the Navy to either take or refrain from taking an action, or instead spend money; or (3) would conflict, impact, or otherwise interfere with ongoing cleanup efforts.

As to the first consideration, the Third Circuit found that the CERCLA’s definitions of “removal” and “remedial action” focus on physical remediation and cleanup efforts, and do not include medical monitoring.  The Navy argued that CERCLA’s references to the Agency for Toxic Substances and Disease Registry (“ATSDR”), which is responsible for government-led health studies, would support a reading of CERCLA that medical monitoring is included in the definitions of a removal or remedial action.  But the Third Circuit rejected the Navy’s argument, agreeing with the Ninth Circuit’s decision in the Hanford Downwinders Coalition, Inc. case, which distinguished between a private claim for medical monitoring and a government-led health study, and held that a “[p]rivate party medical monitoring falls outside of the definition of response action, but government-led monitoring does not.” 

Evaluating the second consideration, the Third Circuit distinguished between a private claim for medical monitoring and a government-led health study, and found that the former is in reality a claim that seeks the expenditure of money, while the latter seeks injunctive relief that could potentially interfere with the response action at a site, a claim that is barred by CERCLA Section 113(h).  The residents’ claim for medical monitoring sought the Navy to fund a trust for a private medical monitoring program, which the Third Circuit held is not a challenge to the cleanup activities at the site.  In contrast, the Third Circuit found that the residents’ claim for a government-led health surveillance study is barred by Section 113(h), because the results of the study would potentially modify or replace the existing remedial plan for the sites, and therefore constitute a direct challenge to ongoing remediation efforts.  

Lastly, the Third Circuit again distinguished between a private medical monitoring program and a government-led health study in that medical monitoring would not impact or interfere with ongoing cleanup efforts, whereas the results of a government-led study could shape or reform the scope of the remediation of a site.  The Court noted that while the “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.” In contrast, a government-led health effects study seeks relief that would potentially “‘improve on the CERCLA cleanup’ by adding work to the removal or remedial action already selected by the federal government at [the Naval] facilities.” 

The Court also evaluated whether the doctrine of sovereign immunity could potentially bar the residents’ medical monitoring claim.  Section 6001(a) of the Resource Conservation and Recovery Act (“RCRA”), expressly waives sovereign immunity for the United States and all of its agencies and authorities, for actions that seek to enforce federal, state, or local environmental laws due to contamination caused by the federal government, so long as the action seeks equitable relief, rather than money damages.  The issue the Third Circuit needed to determine is whether a claim for medical monitoring is a claim for equitable relief, or a claim seeking monetary damages.  Recognizing that the case law on this issue is unclear, the Court held that “whether a medical monitoring claim is a request for a legal remedy or one for equitable relief requires a case-specific analysis.”  The Pennsylvania Supreme Court had already determined in the Redland Soccer Club, Inc. case that a claim for medical monitoring under HSCA that seeks to establish a trust fund for medical monitoring is an equitable claim, rather than a claim for an award of monetary damages.  Other state supreme courts, including New Jersey and Maryland, have also characterized medical monitoring as a claim for equitable relief.  The Third Circuit agreed, and found that medical monitoring claims under HSCA, including the residents’ claims here, which seek the defendant to fund a trust to cover medical monitoring program, is relief that is “primarily equitable in nature” – “That the Navy would have to expend money, does not, in itself, make the desired relief a demand for money damages.” 

The Giovanni/Palmer decision allows the residents’ medical monitoring claims to move forward, and will likely encourage efforts by local residents to remain proactive in the cleanup efforts at these two Naval facilities.  The decision is also significant because as the emerging contaminants PFOA and PFOS continue to become a focus of concern in Pennsylvania, New Jersey, and Delaware, the Third Circuit’s ruling could encourage similar actions by local residents living near sites where PFOA and PFOS contamination has been identified.

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