CERCLA § 113(h) Bar of Pre-Enforcement Review Applied to State Law Medical Monitoring Claims – Giovanni v. U.S. Department of the Navy

In Giovanni v. U.S. Dep’t of the Navy, 2017 U.S. Dist. Lexis 104074 (E.D. Pa. July 6, 2017), the Navy obtained a dismissal of a state law claim for medical monitoring based on the “timing of review” provisions of the Comprehensive Environmental Response, Compensation and Liability Act  (“CERCLA”). The plaintiffs claimed they were exposed to contaminated groundwater, suing the Navy in state court under Pennsylvania’s analog to CERCLA and common law, seeking medical monitoring, a health assessment, and blood testing.  The Navy removed the case to federal court under the federal defendant provision of the removal statute, 28 U.S. C. § 1442(a)(1, and then moved to dismiss the case pursuant to CERCLA § 113(h) because the federal facility alleged to have caused the contamination was in the middle of a response action at EPA’s direction under CERCLA.

Under CERCLA § 113(h), there is no federal court jurisdiction to review any challenges to removal or remedial action selected under CERCLA § 104. The underlying legislative intent is to preclude interference with ongoing environmental cleanups.

The section states:

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 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following:

(1) An action under section 9607 of this title to recover response costs or damages or for contribution.

(2) An action to enforce an order issued under section 9606(a) of this title or to recover a penalty for violation of such order.

(3) An action for reimbursement under section 9606(b)(2) of this title.

(4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title 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 9606 of this title in which the United States has moved to compel a remedial action.

The legislative history of this section supports the interpretation that Congress did not want to delay cleanups. During the hearings for the Superfund Amendment and Reauthorization Act, Sen. Thurmond stated, “the timing of review section ensures that Government and private cleanup resources will be directed toward mitigation, not litigation. The section is designed to preclude piecemeal review and excessive delay of cleanup.”  132 Cong. Rec. S14,928 (daily ed. Oct. 3, 1986).

State law claims have long co-existed with CERCLA response actions and claims.  In the Giovanni case, the court reviewed whether a state claim for medical monitoring and health assessments was a challenge to CERCLA response action within the meaning of CERCLA § 113(h). The court noted that Congress intended section 113(h) to apply broadly to “prevent judicial interference, however well-intentioned, from hindering EPA’s efforts to promptly remediate sites that present significant danger to public health and the environment.”  2017 U.S. Dist. Lexis 104074 *6.

The court determined that the request for medical monitoring and health effects study were included in the statute; therefore, the state law claim for that relief is, in essence, a challenge to a remedial or removal action. Moreover, the intervening state law claim would involve a factual entail a determination of liability at the site, which the court noted must be dealt with after the site had been cleaned up.  Id. at *9.

If this lower court decision is upheld at the appellate level, it could have the effect of eliminating state law medical monitoring claims early on in a case based on CERCLA § 113(h) pre-emption. The California environmental litigation attorneys at Bick Law LLP will continue to monitor the progress of this case.