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Giovanni v. United States Department of Navy

United States Court of Appeals, Third Circuit

October 2, 2018

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

          Argued April 26, 2018

          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

          Mark R. Cuker [ARGUED] Amy Montemarano Cuker Law Counsel for Appellants Kristen Giovanni, Charles Giovanni and Anthony Giovanni.

          Steven E. Angstreich [ARGUED] Amy R. Brandt Weir & Partners 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 Counsel for Appellee.

          Deanna K. Tanner Delaware Riverkeeper Network Counsel for Amicus Appellants Delaware Riverkeeper and Delaware Riverkeeper Network.

          Suzanne I. Novak Earthjustice 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 Counsel for Amicus Appellant Toxics Action Center.

          Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges

          OPINION

          JORDAN, Circuit Judge.

         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.

         I. Background Facts[1]

         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 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 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 [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 CERCLA[3] deprived it 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 CERCLA[4] 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]

         III. Discussion[7]

         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 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 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 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 § 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 cleanup 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. (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.

         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 provided under the Disaster Relief and Emergency Assistance Act [42 U.S.C.A. § 5121 et 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 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.

         1. Removal and Remedial Actions

         The provision at issue here - § 113(h) - states, in relevant part, that federal courts lack jurisdiction "to review 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 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 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 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 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 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 ...


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