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
UNITED STATES DEPARTMENT OF THE NAVY DOROTHY PALMER; GEORGE PALMER, Appellants in No. 17-3196
UNITED STATES DEPARTMENT OF THE NAVY
April 26, 2018
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
R. Cuker [ARGUED] Amy Montemarano Cuker Law Counsel for
Appellants Kristen Giovanni, Charles Giovanni and Anthony
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.
K. Tanner Delaware Riverkeeper Network Counsel for Amicus
Appellants Delaware Riverkeeper and Delaware Riverkeeper
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
S. Hannon Counsel for Amicus Appellant Toxics Action Center.
Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges
JORDAN, Circuit Judge.
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.
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.
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").
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).
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. The Navy has begun environmental cleanup
efforts, and the parties do not dispute that those efforts
are ongoing in both places.
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
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.
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).
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.
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 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
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 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,  not § 120.
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
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
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.
Lack of Jurisdiction Over "Challenges"
Under § 113(h)
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). Our conclusion is that the latter are
challenges but the former are not. To understand why, we turn
to the pertinent portions of CERCLA.
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).
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  …, or to review any order
issued under section [106(a).]" 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).
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.'" 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"
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.
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.
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).
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
42 U.S.C. § 9601(23).
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).
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. We address each of those three
Removal and Remedial Actions
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
Private Party Medical Monitoring
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.
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"
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).
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.
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). 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.
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[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. §
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."
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 ...