PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No s . 17

- 2473 & 17

- 3196

_____________
KRISTEN GIOVANNI, Individually and as parent and natural guardian of V.G., a minor, and D.G., a minor; CHARLES GIOVANNI, Individually a nd 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

_____________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Nos. 2

- 16

- cv

- 0 4873 and 2

- 17

- cv

- 00 765) District Judge: Hon. Gerald J. Pappert

_______________2 Argued April 26, 2018

Before: JORDAN, BIBAS, and SCIRICA, Cir cuit Judges

( Opinion Filed : October 2, 2018 )

_______________

Mark R. Cuker [ARGUED] Amy Montemarano
Cuker Law

2005 Market Street

– Ste. 1300 Philadelphia, PA 1910 3 Counsel for Appellants Kristen Giovanni , Charles

Giovanni and An thony Giovanni

.

Steven E. Angstreich [ARGUED] Amy R. Brandt

Weir & Partners

1339 Chestnut Street

– Ste. 500 Philadelphia, PA 19107 Counsel for Appellants Dorothy Palmer and George Palmer

Jeffrey H. Wood

Eric Grant

Chloe H. Ko lman Sonya J. Shea

Thomas J. Alford

Brian C. Toth Jeffrey S. Beelaert [ARGUED] United States Department of Justice

Environment & Natural Resources Division3 P.O. Box 7611
Ben Franklin Station Washington, DC 20044 Counsel for Appell ee

Deanna K. Tanner Delaware Riverkeeper Network

925 Canal Street

– Ste. 3701 Bristol, PA 19007 Counsel for Amicus Appellants Delaware Riverkeeper and Delaware Riverkeeper Network

Suzanne I. Novak Earthjustice

48 Wall Street

– 19 th Fl.

New Yor k, NY 10005 Counsel for Amicus Appellants Brenda n Boyle , Lori Cervera, Renee Frugoli, Hope Grosse, Yvonne Love, Minda Ruch, Joanne Stanton and Jacquelyn Rose

Wiest

Kevin S. Hannon 1641 Downing Street Denver, CO 80218 Counsel for Amicus Appell ant Toxics Action Center

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge

.4 The Giovanni family and the Palmer family live in neighborhood s close to contaminated federal facilities that were owned and operated for decades by t he 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, seek ing order s requiring the Navy to pay for medical monitoring and to conduct a

hea lth 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 D istrict 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 cl eanu p 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, th e 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

un der CERCLA and that it is not barred by sovereign immunity.5 I. B ACKGROUND F ACTS 1

The Navy owns a number of properties in Pennsylvania, including the Willow Grove Nav al Air and Air

Reserve Station in Horsham Township and the Naval Air Development Center in W arminster Township (collectively, “the Naval Facilities”)

. Because of t he Navy ’s activities, both

facilities are contaminated with hazardous substances

. Among the contaminants a re perfluorinated compounds (“PFCs”), including perfluorooctanoic acid (“PFOA ”) and perfluorooctanesulfonic acid (“PFOS”).

S tudies 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

1 The parties do not dispute any material facts bearing on the issue of subject matter jurisdiction, which makes the Navy’s attack on the complaints under Rule 12(b)(1) a facial challenge rather than a factual one. See Hartig Drug Co. Inc. v. Senju Pharm. Co. Ltd. , 836 F.3d 261, 268 (3d Cir. 2016) (“A facial 12(b)(1) challenge ... attacks the complaint on its face without contesting its alleged facts[.]”). Thus, because we address a facial challenge, the facts set forth here come from the Giovannis’ and Palmers’ complaints and documents referenced therein, and are taken in the light most favorable to

them. See Schuchardt v. President of the U.S. , 839 F.3d 3 36, 343 (3d Cir. 2016) (“In a facial attack, we review only ‘the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.’” (quoting Gould Elecs. v. United States , 220 F.3d 169, 176 ( 3d Cir. 2000)).6 the Environmental Protection Agency (“EPA”) has specifically warned that drinking water containing PFOA and PFOS above certain thresholds pose s health risks. It issued a

non

- binding provisional health advisory recommending a maximum com bined 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 th e health advisory levels. Those f acilities, being in ne ed 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 t he 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., live s 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 c oncentration exposure threshold recommended by the

2 The NPL is a list, compiled by the EPA, of facilities throughout the United States and its territories that are considered “national priorities” among all the facilities known to have involved releases, or that threaten releases, of

haza rdous substances, pollutants, and contaminants. Superfund: National Priorities List (NPL), https://www.epa.gov/superfund/superfund

- national

- priorities

list

- npl (last visited June 25, 2018).7 EPA. The Navy provided the Giovannis with bot tled 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,

ha s 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 0.6 2 μg/L,

which excee ds 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. S ubsequent testing of that supply has revealed PFC contaminat ion there

too

.

II. P ROCEDURAL H ISTORY

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 contaminat ed public and private water sources for residents around the

Naval Facilities due to the Navy’s alleged ly improper disposal of hazardous substances

. Each complaint included a

s ingle state law claim under HSCA seeking , among other things, the costs of medi cal 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 Grove8 [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 Ac t (“RCRA”), 42 U. S.C. § 6961(a)

.

The Navy removed both cases to the District Court under 28 U.S.C. § 1442(a)(1). T he Giovannis and Palmers

then filed motions to remand their cases to state court. The Navy responded by moving to dismiss the case s without

remand

, which t he Giovannis and Palmers opposed

.

The District Court held a hearing on the competing

motions in the Giovannis’ case. The parties agreed that

removal wa s proper under 28 U.S.C. § 1442, which prompted

t he Court to den y the motion for remand. Ultimately, t he
Court dismissed the Giovannis’ complaint

, and i t issued a thorough and detailed memorandum opinion to support its

decision . It concluded that § 113(h) of CERCLA 3 deprive d it

3 Section 113(h), w hich is codified at 42 U.S.C. § 9613(h), stat es:

(h) Timing of review

No 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

sec tion [121 of the Act] (relating to cleanup standards) to review any challenges to removal or remedial action selected under section [1049 of the Act], or to review any order issued under section [106(a) of the Act], in any action except one of the following :

(1) An action under section [107 of the Act] to recover response costs or damages or for contribution.

(2) An action to enforce an order issued under section [106(a) of the Act] or to recover a penalty for violation of such

order.

(3) An action for re imbursement under section [106(b)(2) of the Act].

(4) An action under section [159 of the Act] (relating to citizens suits) alleging

that the removal or remedial action taken under section [104 of the Act] or secured under section [106 of the Act] 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 [106 of the Act] in which the United States has moved to compel a remedial action.

42 U.S.C. § 9613(h).10 of jurisdiction to hear a claim that would interfere with an ongoing cleanup under CERCLA, and that the Giovannis’

claim s 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 F acilities

. The Court construed § 113(h) of CERCLA as depri ving 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 § 1 20 of CERCLA 4

4 Section 120 of CERCLA, which is codified at 42 U.S.C. § 9620, clarifies that the Act applies to federal

facilities:

Each department, agency, and instrumentality of the United States (including the executive, leg islative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section [107 of the

A ct]. Nothing in this section shall be construed to affect the liability of any person or entity under sections [106 and 107 of the Act].11 and were therefore not affected by § 1 13(h)’s jurisdictional

bar. It concluded that th e authority to clean up the Naval

Facilities derived from § 104 of the Act

, 5 not § 1 20

.

The Giovannis and Palmers filed these timely appeals.

Amicus briefs have been fil ed 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

Gro sse, Yvonne Love, Minde Ruch, Joanne Stanton, and Jacquelyn Rose Wiest, all of whom currently live or formerly

lived near the Naval F acilities. 6

42 U.S.C. § 9620(a)(1).

5 Section 104 of CERCLA, which is codified at 42 U.S.C. § 9604, authorizes the President “t o remove or arrange for the removal of, and provide for remedial action” which he “deems necessary to protect the public health or welfare or the environment” whenever “any hazardous substance is

released or there is a substantial threat of such a release into the environment[.]” 42 U.S.C. § 9604(a)(1).

6 We are grateful for the additional insights provided by the amici.12 III. D ISCUSSION 7

We will affirm in part and vacate in part the District
Court’s dismissal of the Giovannis’ and Pal mers’ complaints

and will affirm its decision not to remand to state court.
A lthough the request s for a government

- led health assessment or health effects study are barred under § 1 13(h) as challenge s to ongoing response actions, the request s for the cost s 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 monito ring 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

7 Our jurisdiction to review the District Court’s rulings is uncontested and is rooted in 28 U.S.C. § 1291. The District Court’s jur isdiction is contested. The Giovannis’ and Palmers’ state law claims were properly removed to federal court by the Navy under 28 U.S.C. § 1442(a) because the Navy presented colorable federal defenses, including that the claims are barred under § 113(h) of CERCLA and that it is entitled to sovereign immunity. See Mesa v. California , 489 U.S. 121, 136 (1989) (noting that removal is proper when a defendant demonstrates the presence of a federal question,

either in the form of a federal claim or a colorable f ederal defense); see also Parker v. Della Rocco , 252 F.3d 663, 665 n.2 (2d Cir. 2001) (characterizing sovereign immunity as a federal defense when asserted by a federal agency). The parties dispute the applicability of those defenses, and we will

address those disputes herein.13 Giovannis’ and Palmers’ reques t s for costs associated with private party medical monitoring and remand for further proceedings on those claim s

.

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 m ost 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 interpreta tion 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 § 1 13(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 § 1 13(h) as “chal lenges” 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

- led14 health assessment or health effects study are “challenges to removal or remedial action” under § 1 13 (h)

. 8 Our conclusion

is that the latter are cha llenges 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 design ed , 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 1 13(b) of the Act provide s that “the United States district courts shall have exclusive original jurisdiction

8 Medical monitoring is meant “to compensate plaintiffs who have been exposed to various toxic substances” by accounting for latent diseases or injuries. In re Paoli R.R. Yard PCB Litig. , 916 F.2d 829, 849 (3d Cir. 1990). “[A]n

ac tion for medical monitoring seeks to recover only the quantifiable costs of periodic medical examinations necessary to detect the onset of physical harm[.]” Id. at 850. Under Pennsylvania law, medical monitoring claims are cognizable

under HSCA and the c ommon law. Redland Soccer Club, Inc. v. Dep’t of Army of U.S. , 55 F.3d 827, 849 n.12 (3d Cir. 1995).15 over all controversies arising under [CERCLA].” 42 U.S.C. § 9613(b). Pursuant to § 1 13(h), however, jurisdiction is unavailable under federal or state law “to review any

chall enges 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

9 Section 104 of CERCLA defines response authorities under the Act, including the President’s authority

to institute removal and remedial actions to cle an up contaminated facilities; it also sets forth limitations on his response authority, and exceptions to those limitations. See 42 U.S.C. § 9604(a). It details other cleanup

- related matters too, including financial constraints, funding, interactions wi th state authorities, information gathering processes, and

emergency response powers. See generally id. § 9604(b)

- (k).

10 That provision of the Act states:

In addition to any other action taken by a State or local government, when the President

determin es that there may be an imminent and substantial endangerment to the public health or

welfare or the environment because of an actual

or threatened release of a hazardous substance from a facility, he may require the Attorney

General of the United States t o secure such relief as may be necessary to abate such danger or threat, and the district court of the United

States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities of the case may require. The President may also, after notice to16 § 1 13(h) as “a ‘blunt withdrawal of federal jurisdiction.’” McClellan Ecological Seepag e 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

- establish ed body of case law , including our own, provides guidance on what it means to “challenge” a response action. We have said that § 1 13(h) “clearly preclude[s] jurisdiction to delay or interfere with EPA clean

up activities[.]” Boarhead Corp. v. Erickson , 923 F.2d 1011,

1023 (3d Cir. 1991). Other c ourts 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.

the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and welfare and the environment.

42 U.S.C. § 960 6(a).

11 See also El Paso Nat. Gas Co. v. United States , 750 F.3d 863, 880 (D.C. Cir. 2014) (“[A] claim is a § 113(h) ‘challenge’ if it will interfere with a ‘removal’ or a ‘remedial action.’”); McClellan , 47 F.3d at 330 (describing the relief as

a challe nge under § 113(h) because it “would clearly interfere with the cleanup”); Razore v. Tulalip Tribes of Wash. , 6617 (alteration in original) (quoting Broward Gardens Tenants

Ass’n v. EPA , 311 F.3d 1066, 1072 (11 th 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 § 1 13(h) if it “would not involve altering the terms of [ a ] cleanup order” and “would result only in financia l 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. Un ited 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 f rom it[,]” that does not mean that

every suit, or every request for relief within a suit,

auto matically “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 remed iation 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 re sponse action if it does not “call into question the selected

... remedial or removal plan[.]” Id. at 1073.

F.3d 236, 239 (9th Cir. 1995) (“An action constitutes a challenge if it is related to the goals of the cleanup.”).18 To assess whether a suit is a challenge, w e must also consider the meaning of the terms “removal” and “remedial”

action as used in § 1 13(h) . The statute defines “response” efforts to include “remove, removal, remedy, and remedial action[.]” 42 U.S.C. § 9601(25). Removal actions generally

includ e short

- term or immediate efforts, while remedial actions typically involve l onger 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

relea se 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 r esult 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 no t otherwise provided for, action

taken under section [104(b) of CERCLA] , and any emergency assistance which may be19 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 defi nition of “remedial action” i s:

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 rel ease 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, confin ement, 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 and20 community facilities where the President determines that, alone or in combination with other measures, such relocation is more cos t

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 F acili ties. We take a holistic a pproach that

encompasses several considerations. One is whether the

relief can be classified as a “removal” or “remedial” step

. Anothe r 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 effort s

. 12 We address each of tho se three

considerations seriatim.

12 Our concurring colleague disagrees with our holistic approach and advocates a bright line test for determining21 1. Removal and Remedial Actions

The provision at issue here

– § 1 13(h)

– states, in relevant part, that federal courts lack jurisdiction “to review

whether a claim for relief constitutes a challenge. The
concurrence relies on the District of Columbia Circuit’s opinion in El Paso Natural Gas Company v. United States

, 750 F.3d 863, 880 (D.C. Cir. 2014), to propose “a single framework” for analysis

– whether the claim for relief

interferes with a removal or remedial action. Concur. Slip Op. at 2

- 3 . But the analysis is not so simple and El Paso does not suggest that i t is. The El Paso opinion does provide a helpful way to conceptualize what a challenge is, but the court acknowledged that there will be situations in which “it may be necessary to assess the nexus between the nature of the suit and the CERCLA cleanup” be fore being able to
determine whether a claim for relief would “interfere” with a

removal or remedial action. 750 F.3d at 880. It did not purport to set forth a single bright line test. In laying out our analytical framework, we have relied

on the collec tive experience of our own Court and our sister courts, including the D.C. Circuit in El Paso , to create an approach that we hope is sufficiently flexible to account for the myriad circumstances in which CERCLA litigation arises and yet clear enough to giv e useful guidance to district courts. We appreciate our colleague’s desire to simplify the “challenge” analysis for the benefit of future litigants and courts, and we share that desire. But we think that a framework that relies on nothing but the word “i nterfere” to inform future litigation

– a word that does not appear at all in the statutory text but rather emerged through case law

– will not be as helpful as our colleague believes.22 any challenges to removal or remedial action selected under

section [104 .]” Id. § 9613(h). Thu s, if the re quested relief

can be classified as a removal or remedial action , it is possible that it will conflict with, imp act

, or otherwise

interfere with an ongoing CERCLA cleanup for purposes of § 1 13(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

pa rty 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 res ult 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 i t keeps[.]” Yates v. United States , 135 S. Ct. 1074, 1085 (20 15). 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 directly23 related to the physical removal, containment, assessment, or

evaluation of hazardous w aste, 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 c lassify medical monitoring as a “removal” action

, given that medical monitoring is a way to addr ess 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 minim ize 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 expres sly 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 rel ate 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 eith er 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.

, f

or example, t he United States Court of Appeals for the Tenth Circuit held that medical monitoring does not meet the statutory definitions for removal and24 remedial actions because both definitions were “directed at containing and cleaning up hazardous subst ance 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

tha t 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]he y do not.” ( Giovanni Joint Appendix (“ G.J.A. ”) at 114.) The Court determined instead that, while

13 See also Ambrogi v. Gould, Inc. , 750 F. Supp. 1233,

1244

- 50 (M.D. Pa . 1991) (concluding that CERCLA’s definition of “removal” does not encompass medical monitoring); Bolin v. Cessna Aircraft Co. , 759 F. Supp. 692,

713

- 14 (D. Kan. 1991) (same); Lutz v. Chromatex, Inc. , 718 F. Supp. 413, 418 (M.D. Pa. 1989) (determining that the definition of “response” did not include medical monitoring); Coburn v. Sun Chem. Corp. , No. 88

- 0120, 1988 WL 120739, at *6 (E.D. Pa. Nov. 9, 1988) (stating that it was “difficult to understand how future medical testing and monitoring of persons who were exposed to contaminated well water prior to the remedial measures currently underway” could constitute a “removal” action under CERCLA).25 all “removal and remedial actions” are “responses” under CERCLA, not all such actions are “response costs.” (G.J.A.

at 11 4

- 15.) Therefore, it concluded, it “does not f ollow that all ‘response costs’ are necessarily ‘removal and remedial actions.’” (G.J.A. at 115.) We disagre e with that analysis.

As the District Court noted, those particular cases cited by the Giovannis and Palmers were decid ing whether a private par ty could recover the costs of medical monitoring under CERCLA, which required an assessment of whether medical monitoring expenses were “response costs” under § 1 07(a). 14 But t he District Court’s heavy reliance on a distinction between the terms “response” and “response cost”

is not sound. It is tru e 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 o f ‘response costs’ has been the source of much litigation since CERCLA’s enactment.”). Yet t o discount the case s 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

. T h os e cases undertake practically identical analyses to determin e whether medical monitoring is a “removal” or “remedial action,” and thus necessarily a “response

, ” en route to determining whether it is

14 Section 107(a), a provision for cost recovery claims, is one mechanism CERCLA provides for potentially

respons ible parties to recoup costs expended in cleaning up a contaminated site. 42 U.S.C. § 9607(a); see also Agere Sys., Inc. v. Advanced Envtl. Tech. Corp. , 602 F.3d 204, 216

- 18 (3d Cir. 2010) (summarizing the cost recovery mechanisms provided under CERCLA, i ncluding § 107(a)).26 a “response cost.” See Durfey v. E.I. DuPont de Nemours &

Co. , 59 F.3d 121, 12 4

- 2 5 (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

Reauthor ization 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 expre ssly authorized to “establish [] a health surveillance program[,]” i d.

, and

, in some instances, the statute requires it to initiate such a program , i d. § 9604(i)(9). Health surveillance program s must include, but

are not limited to, “periodic medical testi ng 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 for27 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

de finitions of “removal” or “remedial ” action and its provisions relating to the ATSDR. We think that connection depends on the distinction between private party actors and

state actors.

The United States Court of Appeals for the Ninth

Circuit has thoroug hly considered whether the ATSDR ’s

health “ surveillance activit[ies] ... [are] removal or remedial action[s] entitled to the protection of [ § 1 13(h) ] .” Hanford Downwinders Coalition, Inc. v. Dowdle , 71 F.3d 1469, 1475 (9th Cir. 1995). It decid ed that they are, explaining that the pertinent statutory provision

– § 1 04

– was titled “response authorities,” and “Congress gave no indication that the universe of CERCLA response authorities cannot include

both the health and non

- health related activities found in [§ 104 .]” Id. at 1475

- 76. The court noted that other parts of § 1 04 also contemplated actions of public health authorities being “response measures,” because the President was authorized to “take any other response measure ... necessary to protect the publ ic health or welfare or environment.” Id. at 1476 (quoting 42 U.S.C. § 9604(a)(1)). It thus concluded that “Congress’ single reference to ATSDR authorities as ‘health28 related’ should be read narrowly as a means to distinguish between different types of r esponse authorities, rather than interpreted broadly as an effort to differentiate ATSDR health

... surveillance activity from response actions protected by [ § 1 13(h)].” 15 Id.

Significantly

, the court did not believe that its conclusion undermined its prev ious decisions in Durfey and

Price , which “held that private party medical monitoring activities, initiated and coordinated independently of ongoing CERCLA cleanup efforts, were not

... removal or remedial
actions.” Id. at 1477. It said that the reasoning in those cases did “not apply to health

... surveillance actions engaged in by a governmental agency pursuant to explicit CERCLA provisions.” Id. (emphasis added). It further said that its interpretation was “rooted in the distinction Congress drew

between public and private efforts to monitor the public
health.” Id. at 1478. Congress used the ATSDR to “expand

the role [ of

] government health

... surveillance [

, ] ” but did nothing to add back in the personal rights to recovery of medical expenses (such as for private party medical monitoring) that were intentionally excised from original

drafts of CERCLA

. Id. at 1479.

15 The court limited its holding to the specific ATSDR

activities under review because it noted that not all ATSDR activities should qualify “per se [as] removal or remedial actions for purposes of CERCLA’s Timing of Review provision.” Hanford , 71 F.3d at 1476. That is because some of the agency’s duties would not ordinarily constitute response actions, such as the ATSDR’s general duties to

maintain various health

- related registries and inventories. Id.

at 1476 n.9.29 The court bolstered its conclusion that ATSDR’s

health surveillance activities are response actions with three

reasons related to CERCLA’s rem edial purposes. Id. at 1481. First, Congress has made it clear, especially with the enactment of SARA, that one of CERCLA’s goals is to protect the public health. Id. Second, there are many

instances in which CERCLA privilege s governmental efforts

over private party efforts. Id. Finally, recognizing that the
ATSDR’s activities constitute “removal or remedial action” is most consistent with Congress’s effort to integrate the

agency ’s functions into NPL cleanups. Id. at 1474, 1481

- 82.

The analysis pr ovided by the Ninth Circuit Court in Hanford is persuasive . W e adopt it , with the conclusion that

CERCLA distinguishes between private party medical monitoring activities and government

- led health

surveillance. 16 P rivate party medical monitoring falls out side

of the definition of response action, b ut government

- led monitoring does not. 17

16 The Ninth Circu it also determined “that the ATSDR health ... surveillance activities [at the specific site in question] satisfy the definition of removal action.” Hanford

, 71 F.3d at 1477. We do not need to, and thus do not, decide that here. Although the classification of response actions as either removal or remedial actions may have significant legal and practical consequences under the Act in other circumstances, it is enough here for us to conclude that the ATSDR’s health surveillance activities are response actions

.

17 The concurrence disagrees that the distinction between private actors and government actors makes a30 Accordingly, the Giovannis’ and Palmers’ request s for an order compelling the Navy to pay for the costs associated with private party medical monitoring is relief that fal ls
outside of CERCLA’s definition of “removal or remedial

action.” And t hat counsels in favor of concluding that the ir
request s do not , under § 113(h), constitute a jurisdiction

stripping challenge to an ongoing CERCLA response action

.

b. Health Assess ment or Health Effects Study

We turn next to the Giovannis’ and Palmers’ request s for a government

- led health assessment or health effects study. As a general matter, a health study would not fit the

difference in the analysis of whether a claim for relief constitutes a challenge. Concur. Slip Op. at 3

- 4 . Our colleague stresses that the statutor y language focuses on
“actions” and not “actors.” Id

. We take a different message from the existence of the ATSDR provisions, which create a framework for government actors to conduct medical monitoring and health effect studies. 42 U.S.C. § 9604(i).

T hose statutory provisions show that Congress has made a distinction between government action and private action. When a court orders the government to do something

– particularly something that, like a health effects study contemplated by the ATSDR provi sions, is already regulated by statute

– separation

- of

- powers issues may be implicated that would not be when ordering action from a private party. That seems a pertinent factor to consider in determining whether a claim interferes with the work of the go vernment in a cleanup.31 statute’s definition of removal action for the sa me reasons that private party medical monitoring falls outside that

definition

. References to “assess[ing]” or “evaluat[ing]” refer to “the release or threat of release of hazardous substances,” not the study of the effects of contaminants on human health

. 42 U.S.C. § 9601(23). And the definition’s inclusion of “actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare” does not contemplate a generic health study because such a study do es

not align with the subs equent list of activities directly related

to the evaluation of hazardous waste in connection with its

immediate removal. Id. Nor does the text of the statute support classifying a generic health study as a remedial

action. Such a study is not taken “to prevent or minimize the release of hazardous substances,” and it does not necessarily relate to conducting an evaluation or assessment to promote

environmental remediation efforts . 42 U.S.C. § 9601(24).

But the Giovannis and Palmers are not requesting a generic health study. They want a government

- led health assessment or health effects study. One of the things the ATSDR is charged with “effectuat[ing] and implement[ing]”

is the completion of a “health assessment” within one year of an EPA proposal to list a site on the NPL. 18 Id. § 9604(i) (1),

18 The statute defines the term “health assessment” to

mean:

preliminary assessments of the potential risk to human health posed by individual sites and facilities, based on such factors as the nature and extent of contamination, th e existence of potential pathways of human exposure32 (6)(A). The purpose of that assessment is “to assist in determining whether actions ... should be taken to reduce human exposure to hazardous substances from a facility and

whether additional information on human exposure and associated health risks is needed and should be acquired[.]”

Id. § 9604(i)(6)(G). Among the ways to acquire that

information is “con ducting epidemiological studies [.]” Id. If

such a health assessment leads the ATSDR Administrator to

conclu de “that there is a significant increased risk of adverse health effects in humans from exposure to hazardous substances[,]” then the statute requires the ATSDR to set up a health surveillance program for the affected population. Id. § 9604(i)(9).

As dis cussed above with respect to private party medical monitoring, Congress differentiated between
government

- led and private efforts to assess and protect the

(including ground or surface water contamination, air emissions, and food chain contamination), the size and potential susceptibility of the community within the likely pathways of exposure, the compariso n of expected human exposure levels to the short

term and long

- term health effects associated with identified hazardous substances and any available recommended exposure or tolerance limits for such hazardous substances, and the comparison of existing morb idity and mortality data on diseases that may be associated with the observed levels of exposure.

42 U.S.C. § 9604(i)(6)(F).33 public health following a release or threat of release of

hazardous waste

. Hanford , 71 F.3d at 1478 . Government

- led health studies, unlike generic health studies conducted by private parties, are response actions deemed by Congress as necessary for e valuating the release or threatened release of

hazardous substances. See id. at 1475 , 1477 (concluding that

ATSDR health assessment activities are removal or remedial actions for purposes of § 1 13(h)). That conclusion comports with Congress’s goal of protecting the public health when it enacted SARA, as well as being consistent with CERCLA’s favoring of go vernmental efforts over private party efforts, and Congress’s effort to integrate the ATSDR’s functions into

the cleanups of Superfund sites

. Id. at 1481

- 82.

Here, unlike their request s for private party medical monitoring, t he Giovannis’ and Palmers’ re quest s that the

District Court order the Navy to conduct a health assessment or health effects study, including blood testing

, do constitute

removal or remedial action s for purposes of § 1 13(h)

. B ecause the ATSDR has authority to conduct health

assessment s on behalf of the government at contaminated facilities, and those activities are response actions under CERCLA, the Giovannis’ and Palmers’ demand that another

agency of the government conduct such a study would , if granted, interfere with a response act ion under CERCLA.

Therefore, we agree with the District Court’s

de termination that the requested relief mandating that the Navy perform a health assessment or health effects study is a34 response action under CERCLA, which suggests that it is a challenge u nder § 1 13(h)

. 19

19 The concurrence would not construe the requests for a health effects study as a response action because § 107(a)(4)(A) refers to “removal or remedial action” and § 107(a)(4)(D) separately refers to “any health assessment or healthy effects study carried out under [the ATSDR provisions.]” Concur. Slip Op. at 4

- 6 . According to the concurrence, § 107(a)(4)(D) would be “superfluous ” if a health effect study were to be construed as a removal or

remedial action. Id. at 5 . But, as the concurrence itself highlights, § 107(a)(4)(D) was grafted onto the statute as part

of the SARA amendments to CERCLA. Id

. The addition of § 107(a)(4)( D) suggests that Congress wanted to emphasize that CERCLA liability encompassed the costs of government

led health effects studies; it does not demonstrate unambiguous congressional intent to remove government

- led

health effects studies from the ambit of a ll remedial or

removal actions. Cf. Hanford , 71 F.3d at 1479 (“[W]e decline to read the failure of Congress to accomplish the seamless integration of ATSDR provisions with the other response authorities found under sub

- section [107(a)(4)] as compelling pr oof of Congress’ intent to distinguish ATSDR activities from removal and remedial actions.”). Had Congress enacted § 107(a)(4)(A) and § 107(a)(4)(D) at the same time, then the concurrence’s statutory structure argument might have more persuasive force. B ut the timing of the SARA amendments significantly undermines the position pressed by our colleague. Moreover, the Ninth Circuit has been characterizing ATSDR activities as removal and remedial actions for nearly a quarter century. Hanford

, 71 F.3d at 14 79

- 80. If Congress thought that the courts had35 2. Form of Relief Requested

When assessing whether a claim challenges an ongoing cleanup effort, c ourts have also distinguished among forms of relief as they affect the defending party

. 20 Generally, request s fo r injunctive relief that re late in any way

to pending response actions are viewed as challenge s under § 1 13(h). If a plaintiff demands that a defendant engage in activities that could have been a part of the cleanup plan, then it is a challenge to the selected response actions. Se e , e.g. , McClellan , 47 F.3d at 329

- 30 ( concluding that injunctive relief injecting new requirements into a CERCLA cleanup effort would clearly constitute a challenge because it would interfere with those ongoing activities). In contrast, requests
that req uire little more of the defendant than the expenditure of money are generally not considered to be “ challenges ” under § 1 13(h). See, e.g.

, Beck v. Atl. Richfield Co.

, 62 F.3d 1240, 1242

- 43 (9th Cir. 1995) ( concluding that a request for compensatory damage s for crop loss, lost profits, and property devaluation due to water contamination was not a challenge because the damages claim did not interfere with

the existing remedial plan )

.

gotten it wrong, we hope it would have said something by

now.

20 We note again that § 113(h) only applies when the response actions at issue were selected under § 104, which

authorizes the President to take certain actions, or when the order implicated was issued under § 106(a), which refers to additional actions the President may take.36 But the adjectives “injunctive ” and “ monetary ” are descriptors, not by the mselves reasoned conclusions . T he

effect that the sought

- for relief has on the clea nup is what

must be determinative, not the label a p arty or court uses to
describe the claim for relief. For example, a request that the

defendant pay damages could consti tute a challenge under § 1 13(h) if it directly conflicts with the implementation of the cleanup plan

. See Pakootas v. Teck Cominco Metals, Ltd.

, 646 F.3d 1214, 1221

- 22 (9th Cir. 2011) ( construing a private plaintiff’s request for civil penalties resulting from the defendant’s noncompliance with an EPA administrative order as a challenge to an ongoing cleanup because the EPA had

chosen not to sue to enforce its order and was using the leverage of civil penalties to ensure the defendant completed

the remedia tion ). And, conversely, a request for injunctive

relief that has no effect on an ongoing cleanup is unlikely to constitute a challenge. See ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health & Envtl. Quality of Mont. , 213 F.3d 1108, 1113, 1115 (9th Cir. 2000) (holding that injunctive relief ordering the release of documentation to the public about a contaminated site does not challenge a pending cleanup effort because access to information “does not alter cleanup requirements or environmental standards” a nd does not “terminate or delay the ... cleanup”). We must consider the

form of relief that the plaintiffs request and its impact on the defendant to determine whether the requested relief challenges an ongoing cleanup.

a. Private Party Medical

Mon itoring

Focusing on the specific relief requested here

, payment
for the costs of a private party medical monitoring program37 does not appear to be a challenge under § 1 13(h). The prayer for relief at the end of each complaint expressly states that the

Gio vannis and Palmers want the Navy to provide “the costs of medical monitoring[.]” (G.J.A. at 27; P.A. at 16.) In their briefing, the Giovannis and Palmers insist that the relief “would simply impose the costs of setting up a medical monitoring trust fund on the [Navy.]” (Giovannis’ Opening Br. at 10; Palmers’ Reply Br. at 9

- 10.) Thus, according to

both the Giovannis’ and Palmers’ characterization of the relief that they seek with respect to medical monitoring, the Navy need do no thing but fund a trust

. That counsels in favor of concluding that the relief associated with the Giovannis’ and Palmers’ medical monitoring claim is not a challenge under § 1 13(h) . This is especially so because, as noted earlier, the private party medical monitoring program the Giovannis’ and Palmers’ want the Navy to fund is not a

removal or remedial action

.

b. Health Assessment or Health Effects Study

The government

- led health study requested by the

Giovannis and Palmers, when viewed through the form

- of

relief lens, ap pear s in contrast to be a challenge under § 1 13(h) to ongoing response efforts at the Naval F acilitie s. That relief amounts to a demand that the Navy take on

additional efforts related to cleaning up the contamination at

those Superfund sites . Although t he facts in this case differ

from those in Hanford , which involved an injunction compelling the ATSDR to implement a health surveillance program, the relief requested here is analogous because the
government is being asked to conduct a response action that

the ATSDR may still be contemplating. And like the38 plaintiffs in McClellan , who wanted the court to impose additional RCRA reporting and permitting requirements upon an ongoing cleanup, the reque sted injunctive relief here

would interfere wi th the ongoin g cleanup efforts at the Naval

F acilities because it would modify or replace the existing remedial plan. T he request for a government

- led health assessment or health effects study is therefore effectively a request for injunctive relief , which counsels in favor of concluding that it is barred as a challenge under § 1 13(h).

3. Impact on Ongoing Cleanup Efforts

Another consideration is whether, on the whole, there

is some additional reason to think that a given request for

relief will conflict with, impac t, or otherwise interfere with an ongoing cleanup effort. See Boarhead , 923 F.2d at 1023 (indicating that § 1 13(h) bars lawsuits that will “interfere with” ongoing remediation activities) ; see also Cannon , 538 F.3d at 1335 (stating that § 1 13(h) precludes lawsuits that will
“interfere [] with the implementation of a [selected] CERCLA remedy” (citation omitted)).

a. Private Party Medical Monitoring

It seems unlikely that the Giovannis’ and Palmers’
request s for the costs of private party medical m onitoring will

conflict with, impact, or otherwise interfere with the ongoing cleanup efforts at the Naval F acilities. It will “in no way impede[] the progress of the government’s ongoing assessment and cleanup” at the contaminated site. Yslava

, 845 F. S upp. at 710; see also Durfey , 59 F.3d at 12 6 (holding that the plaintiffs’ claim for private party medical monitoring39 costs under state tort law was not a “challenge” to an ongoing CERCLA cleanup under § 1 13(h)). Moreover, an order requiring the Navy to p ay a sum of money to fund a private party medical monitoring program will “not in any manner ... interfere with the ongoing activities of the ATSDR.” Boggs v. Divested Atomic Corp. , No. C

- 2

- 90

- 840, 1997 WL 33377790, at *6 (S.D. Ohio Mar. 24, 1997). Altho ug h any money the Navy would provide to fund private party medical monitoring could divert funds from the cleanup efforts at the

Naval F acilitie s, that is insufficient

, standing alone , to render

such relief a challenge under § 1 13(h). See, e.g.

, El Paso Nat

. Gas , 750 F.3d at 8 80 (“[E]very action that increases the cost of a cleanup or diverts resources or personnel from it does not thereby become a ‘challenge’ to the cleanup.” (quoting

McClellan , 47 F.3d at 330)).

The District Court nevertheless held that the medical monitoring c laims are barred by § 1 13(h) because they challenge t

he ongoing cleanups at the Naval F acilities. I n so holding , i t relied heavily on our decision in Boarhead

. We
said in that case that “Congress enacted CERCLA so that the

EPA wou ld have the authority and the funds necessary to respond expeditiously to serious hazards without being stopped in its tracks by legal entanglement before or during

the hazard clean

- up.” 923 F.2d at 1019. We also said that the jurisdictional bar in § 1 13 (h) was “designed to prevent time

consuming litigation from delaying the prompt clean

- up of these [contaminated] sites.” Id. Notably, we described “disputes about who is responsible for a hazardous site, what measures actually are necessary to clean

- up t he site and remove the hazard[,] or who is responsible for its costs” as lawsuits best left for “after the site has been cleaned up.” Id.40 The District Court here concluded that requiring the Navy to pay for medical monitoring would interfere with the

on going cleanup efforts because it “would necessarily entail deciding a ‘dispute[] about who is responsible for [the] hazardous site’ and ‘who is responsible for its costs.’” (G.J.A. at 113 (alterations in original) (internal citations omitted).) The Court said that those “are decisions that Congress determined ‘should be dealt with after the site has been cleaned up.’” (G.J.A. at 113 (quoting Boarhead , 923 F.2d at 1019).)

Th at reliance on Boarhead is understandable but , in this instance, misplaced. The plaintiff in that case was “challenging the EPA’s ability to conduct an [environmental] study pursuant to § 104 of CERCLA before the EPA perform [ed] an appropriate review [

. ] ” Boarhead , 923 F.2d at

1018. T he plaintiff was thus directly interfering with t he EPA’s ability to conduct a cleanup because it was seekin g injunctive relief that would certainly have alter ed the existing remedial plans. T he facts here are quite different . The

Giovannis and Palmers want the Navy to fund a trust to cover

the costs o f private party medical monitoring rather than to

take some additional action. And it is not clear that there would be any litigation about who is responsible for the contamination or the costs of the cleanup. T he Navy freely

admits that it “generated ha zardous waste” and “released

PFOA and PFOS” contaminants at the Naval F acilitie s

. (Answering Br. at 11, 13.)

Finally, the District Court specifically distinguished

the conclusions in Durfey and Yslava that private party medical monitoring claims are not challenges under § 1 13(h) because, in its view, those cases fail ed to explain why state41 law medical monitoring claims are not disputes about who is responsible and hence, under § 1 13(h) , should be dealt with after the cleanup is complete. But we should n ot expect a
discussion of “responsibility” for “necessary costs of response” and “response actions” in a case in which there has already been a determination that the requested remedy is not a “response” or “response cost.” Furthermore, Durfey

involved a government

- owned property that w as contaminated with radioactivity dur ing the development of the atomic bomb in the 1940s, so there was likely no dispute that the government was responsible for the contamination

. Thus, the District Court’s conclusion that the Gi ovannis’ and Palmers’ request s for the costs of private party medical monitoring were challenge s for purposes of § 1 13(h) is

, in our estimation, without adequate support.

b. Health Assessment or Health Effects Study

The story is different for a government

- led health study

. There is reason to believe that the Giovannis’ and Palmers’ request s that the Navy conduct a health assessment or health effects study will conflict with, impact, or otherwise interfere with the ongoing cleanup efforts at the Naval

F acilities. That relief “seeks to improve on the CERCLA cleanup” by adding work to the removal or remedial action already selected by the federal government at those facilities

. El Paso Nat. Gas , 750 F.3d at 880

- 81 (quoting McClellan , 47

F.3 d at 330). Ordering such relief necessarily preempts the federal government’s “ability to choose the best remedial action among a panoply of remedial alternatives that have been analyzed in a completed remedial investigation and feasibility study accordin g to criteria articulated in42 CERCLA,” id. at 881, especially with respect to those provisions relating to the ATSDR’s powers and obligations. Thus, the District Court’s conclusion that the Giovannis’ and Palmers’ request s for a government

- led health study are challenge s for purposes of § 1 13(h) is supported by the case

law

.

In sum , we conclude that the Giovannis’ and Palmers’
request s for funds to establish a private party medical monitoring program are not challenge s for purposes of § 1 13(h )

, 21 b ut their request s for an order mandating that the Navy conduct a health assessment or health effects study are

. W e therefore lack jurisdiction to review those latter request s at this time

.

21 That conclusion is consistent with our decisions in

the In re Paoli cases. See In re Paoli R.R. Yard PCB Litig.

, 916 F.2 d 829 (3d Cir. 1990) (“ Paoli I ”); In re Paoli R.R. Yard PCB Litig. , 35 F.3d 717 (3d Cir. 1994) (“ Paoli II ”); In re Paoli R.R. Yard PCB Litig. , 113 F.3d 444 (3d Cir. 1997) (“ Paoli III

”). In those cases, despite ongoing cleanup efforts by the EPA, we said t hat the plaintiffs could move forward with their state law claims for medical monitoring. See, e.g.

, Paoli III , 113 F.3d at 449 n.2; Paoli II , 35 F.3d at 785

- 95. Although we did not discuss § 113(h) in those cases, if we

had reached a conclusion differen t than we do here, it would have undermined our jurisdiction to have decided them. See also Clinton Cty. Comm’rs v. EPA , 116 F.3d 1018, 1025 (3d Cir. 1997) (en banc) (concluding that § 113(h)’s bar to challenges of ongoing EPA remedial efforts strips the federal courts of subject matter jurisdiction).43 4. The Palmers’ Argument Under § 120

of CERCLA

Notwit hstanding any argu ment under § 1 13(h) , t he Palmers argue that the cleanup activities at the federal Naval

F acilities were initiated under § 1 20 rather than § 1 04, and

thus that § 1 13(h) is inapplicable to bar their state

- law claim

. The Navy counters that § 1 20 merely descr ibes additional procedures unique to federal land, and does not confer any authority outside of that already granted in § 1 04. We agree with the Navy.

Section 1 13(h), by its plain text, bars “challenges to

removal or remedial action selected under sectio n [104] of [CERCLA .] ” 42 U.S.C. § 9613(h). Section 1 04 broadly prescribes the applicable response authorities available under the statutory scheme. See 42 U.S.C. § 9604. Meanwhile, § 1 20, which is titled “Federal facilities [

, ] ” describes the applicatio n of CERCLA’s pro visions to federal facilities.

O ur analysis of a statute begins , of course, with the

text. Haberle , 885 F.3d at 178. Section 1 04 states that “the President is authorized to act ... to remove or arrange for the removal of, and provide for the remedial action relating to ... [a] hazardous substance, pollutant, or contaminant at any time ..., or take any other response measure ... [he] deems necessary to protect the public health or welfare or the environment.” 42 U.S.C. § 9604 (a)(1) . That author ity is granted in the broadest terms . There are a number of references to a “facility” or “facilities,” but there is no

indication that Congress meant to distinguish between federal

and non

- federal facilities , or between Superfund and non

Superfund sites

. Furthermore, § 1 01(9) provides a definition44 of the term “facility” and also fails to distinguish between the

federal and non

- federal

, or the Superfund and non

- Superfund

, nature of a site

. 22 Thus, the text of § 1 04 authorizes the President to take respons e actions at any facility with respect to any hazardous release, including a federal facility listed on

the NPL.

Section 1 20, which was added to CERCLA in 1986,

see Pub. L. No. 99

- 499, 100 Stat. 1613 (1986) (codified at 42 U.S.C. § 9601 et seq. ), has ever since been a source of confusion because of its imprecise language. It states that every “department, agency, and instrumentality of the United States ... shall be subject to, and comply with, [CERCLA] in the same manner and to the same extent, both proced urally and substantively, as any nongovernmental entity, including liability under section [107] of [the Act] .” 42 U.S.C. § 9620(a)(1). It then provides a number of specific duties and

22 Section 101(9) defines “facility” to mean:

(A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lago on, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area

where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not

include an y consumer product in consumer use or any vessel.

42 U.S.C. § 9601(9).45 procedures for the Administrator of the EPA with respect to

federal f acilities. See generally id. § 9620. One of the

subsections of § 1 20 says that “no authority vested in the Administrator under this section may be transferred, by executive order of the President or otherwise, to any other officer or employee of the Unit ed States or to any other person.” Id. § 9620(g). While that suggest s that some authority has been granted to the federal government under § 1 20, that does not mean that the authority is necessarily independent from, and did not otherwise already exist i n some form, under § 1 04 or some other section of CERCLA.

Section 1 20 is best understood as clarifying the application of already existing CERCLA authority , like § 1 04

, to federal

facilities. 23

23 An executive order from the person authorized to act under § 104

– the President of the United States

– supports that reading. Specifically, Executive Order 12,580

demonstrates tha t the President and his staff thought CERCLA conferred authority for him to initiate response actions under §§ 104, 113, 117, 119, 121, and 126 of that statute, because he delegated the functions vested under those provisions to various federal departments and agencies. Exec. Order No. 12,580, 52 Fed. Reg. 2923, 2924

- 25 (Jan. 23, 1987). He did not distinguish between federal facilities and

non

- federal facilities in that delegation of authority. See id. at 2924 (delegating CERCLA functions in Section 2(e) (1) of the Order). Although the Palmers read Section 2(e)(1) of the Order, which is limited to facilities not on the NPL, as suggesting that § 104(a) only granted the President authority to act with respect to federal facilities not listed on the NPL,

tha t is not the most logical reading. A better reading is that the President simply did not delegate the full scope of his46 O ther courts have similarly concluded that § 1 20 is not

an i ndependent and wholly separate grant of authority from § 1 04 for the cleanup of federal facilities. In Werlein v.

United States

, the court held tha t a remedial action at a federal facility was taken “under section [104] , subject to the requirements of sec tion [120] .” 746 F. Supp. 887, 89 2 (D. Minn. 1990), vacated in part on other grounds , 793 F. Supp. 898 (D. Minn. 1992). It reasoned that § 1 04(a)(1) g rants the President response authority, which he delegated in Executive Order 12,580 to various agencies , both with respect to private

land and federal land. Id. at 891. The court then explained that § 1 20 “provides a road map for application of CERCLA

to federal facilities [

, ] ” and that there would be little reason for the President to delegate response au thority to the Secretary of Defense “[i]f section [104] did not apply to federal
facilities.” Id. at 89 1

- 9 2. Although it acknowledged that some aspects of § 1 20 could be read to suggest it was providing a “separate and distinct” source of cleanup

authori ty for federal facilities, the court said it was better to consider § 1 20 as a mere set of “separate procedures for federal facility cleanups[.]” Id. at 892 ; see also Heart of Am. Nw. v. Westinghouse Hanford Co. , 820 F. Supp. 1265, 1279

authority in the Order, since NPL sites presumably deserve greater attention at the highest levels of government. That reading is supp orted by Section 2(e)(2) of the Order, which reads similarly to Section 2(e)(1), except that it makes no reference to whether the federal facility is listed on the NPL.

See id. at 2924

- 25. The Order contemplates that § 104 included authority to act with respect to federal facilities, both

NPL and non

- NPL.47 (E.D. Wash. 1993) (holding that an environmental cleanup at a federal facility listed on the NPL was conducted under § 1 04, not § 1 20). 24

Section 1 20 does create unnecessar y tension with a logical reading of § 1 04, but

, as we have indicated on numerous occasions

, CERCLA is not the Mona Lisa of

statutes. United States v. Rohm & Hass Co. , 2 F.3d 1265, 1270 n.6 (3d Cir. 1993) (“Numerous courts have complained about the inartful, confusing, and ambiguous language and the absence of useful legislative history [of CERCLA].”),

ove rruled on other grounds by United States v. E.I. DuPont

de Nemours & Co. , 432 F.3d 161 (3d Cir. 2005) (en banc); Lansford

- Coaldale Water Auth. v. Tonolli Corp. , 4 F.3d 1209, 1221 (3d Cir. 1993) (“CERCLA ... [is] notorious for its lack of clarity and poor dra ftsmanship[.]”); United States v. Alcan Aluminum Corp. , 964 F.2d 252, 258 n.5 (3d Cir. 1992) (“[T]he statute is riddled with inconsistencies and redundancies.”). The tension is not so great as to warrant interpret ing the statutory scheme in a manner that contravenes the likely intent of Congress. Adopting the Palmers’ interpretation of CERCLA would lead to the odd result that litigants c ould not challenge ongoing cleanup work at private

24 We recognize, however, that not every court agrees

with that conclusion. In Fort Ord Toxics Project, Inc. v. California E.P.A. , the Ninth Circuit held that, while “troubling[,]” it is “most reasonab le” to interpret §§ 104 and 120 as separate grants of authority. 189 F.3d 828, 832 (9th Cir. 1999). We are not persuaded by that interpretation, and it is notable that no other circuit court has adopted Ford Ord ’s reasoning.48 facilities but they c ould run rampant with challenges to the

same at federal Superfund sites

.

We therefore agree with the District Court that the EPA’s cleanup efforts at the Naval F acilities have been

undertaken pursuant to § 1 04, subject to the requirements of § 1 20. 25

B. Sovereign Immunity

The Navy argues that even if the Giovannis’ and Palmers’ claims are not barred as challenges to ongoing response actions that they must nevertheless fail because of the government’s sovereign immunity

. “As a sovereign, the

United States is immune from suit unless it consents to be
sued.” White

- Squire v. U.S. Postal Serv. , 592 F.3d 453, 456 (3d Cir. 2010). “Its consent to be sued must be ‘unequivocally expressed,’ and the terms of such consent define the court’s subject matter jurisdiction.” Id. (quoting

25 The parties dispute wheth er the District Court was required to remand the claims to state court. Because we have concluded that § 113(h) does not bar the medical monitoring claim s , there is federal jurisdiction over those

claims and remand to state court is unnecessary. Section 113(h) did not bar filing those claims initially in state court. Nor did § 113(b), because the claims arise under state law, not CERCLA. We will, however, affirm the District Court’s decision to dismiss the demands for a health effects study

because thos e demands constitute challenges to the Navy’s ongoing cleanup, and thus neither we nor the state courts have jurisdiction to consider those claims at this time.49 United States v. Mitchell , 445 U .S. 535, 538 (1980)). Importantly, even when there is a statutory waiver of immunity, “[w]e should not take it upon ourselves to extend the waiver beyond that which Congress intended.” Id. (quoting United States v. Kubrick , 444 U.S. 111, 117

- 18 (1979)). The Giovannis and Palmers contend that the Navy, as an agency of the United States, has waived its sovereign immunity pursuant to § 6001(a) of RCRA and pursuant to § 120(a)(1) of CERCLA . The Navy disagrees, and argues that there is no unequivocal waiver of its sovereign immunity.

We think the Giovannis and Palmers have the better of the
argument because § 6001(a) of RCRA unequivocally waives sovereign immunity to state law claims for injunctive relief

. 26

26 The Navy did not, however, waive its sovereign immunity under § 120(a)(1) of CERCLA. That provision states that “[e]ach department, agency, and instrumentality of the United States ... shall be subject to, and comply with, [CERCLA] in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity[.]” 42 U.S.C. § 9620(a)(1). Another subsection, however, says that “[s]tate laws concerning removal and remedial action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by a department, ag ency, or instrumentality of the United States or facilities that are the subject of a deferral under subsection (h)(3)(C) of this section when such facilities

are not included on the National Priorities List .” Id. § 9620(a)(4) (emphasis added). The Naval Facilities are listed on the NPL, and thus the federal government has not exposed itself to liability under state law as it relates to its response efforts at those sites. See Warminster Twp. Mun.
Auth. v. United States , 903 F. Supp. 847, 850 (E.D. Pa. 1 995)50 Section 6001(a) of RCRA provides that each departme nt or agency of the federal government dealing with solid or hazardous wastes “shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural[.]” It goes on to state that “[t]he Federal, State , interstate, and local substantive and procedure requirements referred to in this subsection include, but are not limited to, all administrative orders and all civil and administrative penalties and fines[.]” 4 2 U.S.C. § 6961(a). Moreover, it provides t hat “[t]he United States hereby expressly waives any immunity otherwise applicable to the United States with respect to any substantive or procedural requirement (including, but not limited to, any injunctive relief, administrative order or civil or

admini strative penalty or fine ...) .” Id. That waiver is wordy

but t he upshot is that the United States has surrendered its immunity with respect to the enforcement of federal, state,

and local environmental laws due to contamination at the hands of the governme nt, when such enforcement involves injunctive relief

. Id. The RCRA waiver does not, however, suggest that the government has waived its sovereign immunity for suits by private parties for money damages. The question thus becomes whether a medical monito ring claim is more appropriately classified as a request for money damages or for injunctive relief.

The Giovannis and Palmers characterize their requested relief as an injunction ordering the Navy to fund a trust fund that will pay for private party medi cal monitoring.

(“[T]he waiver of sovereign immunity described in CERCLA cannot operate to expose the Government to liability under the HSCA [for facilities on the NPL].”).51 That led the District Court to logically concluded that the Giovannis and Palmers lawsuits sought “injunctive relief to compel medical monitoring[.]” (G.J.A. at 112.) Although the

case law on that issue is less than clear , we think the b etter approach on this record is to classify the relief as injunctive

.

The characterization of medical monitoring appears to come up most often in mass exposure cases where putative class plaintiffs seek certification of an injunctive relief class

under F ederal Rule of Civil Procedure 23(b)(2). See, e.g.

, Gates v. Rohm & Haas Co. , 655 F.3d 255, 264 (3d Cir. 2011) (addressing putative Rule 23(b)(2) class seeking costs for medical monitoring); Barnes v. Am. Tobacco Co. , 161 F.3d 127, 142 (3d Cir. 1998) (sam e). In that context, we have acknowledged that “[m]edical monitoring cannot be easily categorized as injunctive or monetary relief,” Gates , 655 F.3d at 262, but have not squarely resolved the issue, see, e.g. , id. at 263 (declining to reach issue because the district court
denied class certification “for reasons unrelated to the injunctive or monetary nature of the relief sought”). See also

Barnes , 161 F.3d at 151 (recognizing that medical monitoring claims can be brought “at law or in equity dependi ng on the type of relief sought ” ).

We have also said that “[i]f plaintiffs seek relief that is a disguised request for compensatory damages, then the medical monitoring claim can only be characterized as a claim for monetary damages.” Id. (quoting Arch v. Am. Tobacco Co., Inc. , 175 F.R.D. 469, 483 (E.D. Pa. 1997)). “A plaintiff cannot transform a claim for damages into an equitable action by asking for an injunction that orders the payment of money.” Jaffee v. United States , 592 F.2d 712, 715 (3d Cir. 1979). On the other hand, “if plaintiffs seek the52 establishment of a court

- supervised medical monitoring program through which the class members will receive periodic medical examinations, then plaintiffs’ medical monitoring claims can properly be characterized as a claim seeking injunctive relief.” Barnes , 161 F.3d at 151 (quoting

Arch , 175 F.R.D. at 483). Under those circumstances, “the

creation of [ an ] expense does not necessarily remove a form of relief from the category of equitable remedies.” Jaffee

, 59 2 F.2d at 715. Therefore, whether a medical monitoring claim is a request for a legal remedy or one for equitable relief requires a case

- specific analysis.

Here, we are faced with a request fo r medical monitoring under HSCA. We have noted that , in Redl and Soccer Club, Inc. v. Department of the Army

, “[t]he Pennsylvania Supreme Court has endorsed awarding medical monitoring damages as a trust fund which ‘compensates the plaintiff for only the monitoring costs actually incurred.’”

Gates , 655 F.3d at 263 (quoting Redland Soccer , 696 A.2d 137, 142 (Pa. 1997)). That Court expressly recognized the availability of medical monitoring relief in a claim under

HSCA. 696 A.2d at 142. I t characterized the plaintiffs in that case as having “requested e quitable rel ief .. . in the form of a medical monitoring trust fund [

. ] ” Id . It then explained that

the relief a vailable for such a claim was the creation of a trust
fund through its equitable powers , not a lump sum award of damages:

A claim for a medical monitoring trust fund is significantly different from a claim for a lump sum award of damages. A trust fund compensates the plaintiff for only the monitoring costs actually incurred. In contrast,53 a lump sum award of damages is exactly that, a monetary award that t he plaintiff can spend as

he or she sees fit. Various courts have advocated the trust fund approach in stead of the lump sum approach.

Id. at 142 n.6 (citations omitted)

.

That case is not the only one in which a state high

court conclude d that the type o f medical monitoring costs sought here is best characterized as injunctive relief. The New Jersey and Maryland Supreme Courts also agree. See Exxon Mobil Corp. v. Albright , 71 A.3d 30, 80 (Md. 2013) (“We note with approval the recent tendency of many cou rts that award medical monitoring costs to do so by establishing equitably a court

- supervised fund, administered by a trustee, at the expense of the defendant.”); Ayers v. Township of

Jackson , 525 A.2d 287, 314 (N.J. 1987) (“In our view, the use

of a court

- supervised fund to administer medical

- surveillance payments in mass exposure cases ... is a highly appropriate exercise of the Court’s equitable powers.”).

The United States Supreme Court likewise appears to

agree th at a medical monitoring claim can be so mething other than a claim for money damages. In Metro

- North Commuter Railroad Company v. Buckley , 521 U.S. 424 (1997), a railroad worker had brought suit under the Federal Employers’ Liability Act (FELA) as a result of asbestos

exposure

. Id. at 427. Th e worker , who was asymptomatic, had sought a lump

- sum damages award for negligent

infliction of emotional distress and for a related medical monitoring claim. Id. at 426

- 27. The district court dismissed

the FELA claim because the worker had not shown evi dence54 of actual physical harm

, and the court declined to address the medical monitoring claim. Id. at 428. The Second Circuit

reversed , permitting the medical monitoring claim to proceed

. Id. at 438

- 39. The Supreme Court granted certiorari and in

turn reversed the Second Circuit.

The Supreme Court interpreted the Second Circuit’s opinion as adopt ing the idea “that medical monitoring costs themselves represent a separate negligently caused economic ‘injury[]’ ... permitting (as tort law ordinarily permit s) the recovery of medical cost damages in the form of a lump sum[.]” Id. at 439. With no FELA case law on point , the Supreme Court “canvassed the state

- law cases that have considered whether the negligent causation of this kind of harm ( i.e. , causing a plaintiff, through negligent exposure to a toxic substance, to incur medical monitoring costs) by itself constitutes a sufficient basis for a tort recovery.” Id. at 440.

T he Court described that body of law as revealing “that the cases authorizing recove ry for medical monitoring in the absence of physical injury do not endorse a full

- blown, traditional tort law case of action for lump

- sum damages[.]”

Id. “Rather,” the Court observed, “those courts, while recognizing that medical monitoring costs can amo unt to a harm that justifies a tort remedy, have suggested, or imposed, special limitations on that remedy.” Id. at 440

- 41. The Court explained that the New Jersey Supreme Court had “recommend[ed] in future cases [the] creation of ‘a court

supervised fun d to administer medical

- surveillance
payments [

. ] ’” Id. at 441 (quoting Ayers , 525 A.3d at 314). The Supreme Court characterized the Second Circuit’s adoption of a lump

- sum damages award for medical monitoring costs as “beyond the bounds of currently evol ving55 common law.” Id. at 440 (internal quotation marks and citation omitted).

As it relates to the Giovannis’ and Palmers’ medical monitoring claims under HSCA, we now join those courts that have characterized that type of relief as primarily equitable in nature

. The Giovannis’ and Palmers’ medical monitoring claims do not seek a lump sum of money to

com pensate them for past harm. Rather, those claims seek an

order requiring the Navy to fund a trust that will cover a prospective private party medical m onitoring program. That the Navy will have to expend money does not , in itself, make

the desired relief a demand for money damages. Jaffee , 592
F.2d at 715. We therefore conclude that the Giovannis’ and Palmers’ medical monitoring claims are best unders tood as requests for injunctive relief. 27

B ecause RCRA waives sovereign immunity to claims for injunctive relief, the Navy is not immune from suit for the costs of private party medical monitoring. Accordingly

, those claims may proceed.

IV. C ONCLUSION

For t he foregoing reasons, we will affirm in part and vacate and remand in part the order s of dismissal

.

27 Our analysis is limited to characterizing claims for private party medical monitoring under HSCA for purposes of the RCRA waiver of sovereign immunity. We do not decide today how to characteri ze claims for relief outside

tho se limited circumstances.1 BIBAS, Circuit Judge , concurring in part and concurring in the judgment.

I a gree with the majority that the government took its response actions at Navy facilities under § 9604, so I join part III.A.4 of the majority opinion. I also join part III.B because I

agree with the limited holding that RCRA’s sovereign

- immunity waiver does not bar claims that seek a medical

- monitoring

trust fund. See Maj. Op. at 55 n.2 7

. So I concur in the judgment.

But I would adopt the D.C. Circuit’s definition of a forbidden “challenge,” limiting it to actions that would interfere with a cleanup. At root, I disagree that who does an action bears on

whether that action meets CERCLA’s definitions of “removal” or “remedial.” In other words, I am unpersuaded by the Ninth

Circuit’s decision in Hanford . While that opinion relies on legislative history and remedial purpose, I would stick to the statutory text. At the very least, we should adopt a single workable test to determine what are challenges barred by § 9613(h).

Under the correct test

, neither medical monitoring n or
health assessments qualify as “ challenges to removal or remedial action[s]

. ” 42 U.S.C. § 9613(h). I agree with the majority that priv ate medical monitoring is not a challenge. But my conclusion would not change if t he plaintiffs sought medical monitoring by the government . The same is true for health assessments.

I. W E S HOULD A DOPT THE D.C. C IRCUIT ’ S

I NTERFERENCE T EST

To determine what a forbidden “challenge” is, the majority takes a “holistic approach.” Maj. Op. at 20

. It addresses each2 of our sister circuits’ varied tests and applies them all . Butadopting divergent tests leaves district courts without a workable f ramework. Instead, we should distill the various tests into a single one. The D.C. Circuit has already done that work for

us in El Paso Natural Gas , 750 F.3d at 880.

Adopting the other circuits’ differing tests could produce divergent results. This case illustrates the point. The Giovannis’ and Palmers’ health

- assessment claim s are unlikely to call the remedial plan “into question.” Broward , 311 F.3d at 1 073

. And arguably it would not “ interfere with the implementation of a CERCLA remedy” by “ ‘ impact[ing] the [removal] action

selected. ’ ” Cannon , 538 F.3d at 1335 (quoting Broward , 311
F.3d at 1072) . At most

, health assessments c ould later prompt

the EPA to take extra response actions if the health assessment

revealed a significant risk. 42 U.S.C. § 9604(i)(11). But layering new health measures, or even extra cleanup efforts, on top of an existing plan is not the same as challenging the measures already selected. On the other hand, a health assessment is “related to the goals of cleanup.” Razore , 66 F.3d at 239. Still, the majori ty relies on all three of those opinions , plus El Paso

. Maj. Op. at 1 6

- 1 7

. I do not know how distric t courts will untangle

this web

.
Instead, I would adopt El Paso ’s interference test. The D.C. Circuit nicely synthesized our sister circuits’ varied tests i nto a single framework: a claim is a challenge under § 9613(h) “if it

will interfere with a ‘removal’ or a ‘remedial action.’ ” El Paso

, 750 F.3d at 880 (emphasis in original) (discussing Cannon and

Broward , among other cases). In close cases, courts must gauge how closely “the suit [relates to] the CERCLA cleanup:3 the more closely related, the clearer it will be that the suit is a ‘challenge.’ ” Id. And the Ninth, Tenth, and D.C. C ircuits agreethat the statutory requirement of a “challenge” means “interfe rence” or something very close to it. El Paso , 750 F.3d at
880; Cannon , 538 F.3d at 1335; see also Razore , 66 F.3d at

239

- 40 (finding “interfere[nce]” because the requested remedies could have “halted [cleanup efforts] for ‘days or weeks’ ”). I would simpl y add that “interfere” should carry its ordinary meaning: to “obstruct [] or hind[er].” Interference

, Black’s
Law Dictionary 831 (8th ed. 2004)

.

II

. M EDICAL M ONITORING I S N OT A R ESPONSE A CTION

The majority artfully explains why private medical monitoring is neither a removal nor a remedial action. But I see no reason why the quality of the action changes simply because

the actor is the government.

The Ninth Circuit’s opinion in Hanford , relied o n by the majority, is unpersuasive

. Maj. Op. at 2 7

- 2 9

. There, the Ninth Circuit resorted too quickly to CERCLA’s legislative history and remedial purpose. 71 F.3d at 1478

- 81. But CERCLA does

not distinguish governmental actors from private ones ; the releva nt provisions say nothing about who do es the cleanup. As the majority notes, the law “gives ‘the President broad power to command government agencies and private parties to clean up hazardous waste sites.’ ” Maj. Op. at 1 4 (quoting Key Tronic Corp. v. United States , 511 U.S. 809, 814 (1994)). And the definitions of “removal” and “remedial action[s]” are keyed to actions, not actors . 42 U.S.C. § 9601(23) (listing “ actions ” that may need to be taken to “cleanup or remov[e] released hazard-4 ous substances”) (emphasis added); id. § 9601(24) (“[R]emedial action means those actions consistent with permanent remedy taken instead of or in addition to removal actions .”) (internal quotation marks omitted and emphases added).

Given the statutory text’s explicit focus on actions, not actors, I find Hanford ’s focus on legislative history and purpose unpersuasive. So I would hold that § 9613(h) does not bar a suitseeking medical monitoring as “challenges to removal or remedial ac tion.”

III

. Nor A re H ealth A ssessments R esponse A ctions

Nor does government involvement turn health assessments

into removal or remedial actions. CERCLA explicitly distinguishes health assessments from response actions

. The statute allows recovery of

(A) all costs of removal or remedial action incurred by the United States Government or a

State or an Indian tribe not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the

n ational contingency plan;

(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and5 (D) the costs of any health assessment or he alth effects study carried out under section 9604(i) of

this title.

42 U.S.C. § 9607(a)(4) ( emphases added). Since t he statute

enumerates response actions separately from health assessments , the two are distinct . Any other reading renders
§ 9607(a)(4)(D) superfluous.

And subparagraph (D) was added later than (A) and (B)

. Superfund Amendments and Re authorization Act of 1986

, Pub. L. No. 99

- 499, § 107, 100 Stat. 1613. In fact, Congress

added subparagraph (D) at the same time that it created the ATSDR and pro vided for medical monitoring and health assessments. Id. §§ 107, 110. If health assessments were removal or remedial actions, then they would already have been covered by § 9607(a)(4)(A) and (B) . But health assessments were

not, so Congress added § 9607(a )(4)(D). I would give full effect to th at addition

.

True, there is a colorable argument that the definition of a

health assessment falls within the definition of a removal action. Health assessments examine “the potential risk to human health posed by indi vidual sites and facilities.” 42 U.S.C.
§ 9604(i)(6)(F). That sounds a lot like “assess[ing], and evaluat[ing] the release” of, hazardous substances. Id. § 9601(23) (defining removal actions). Still, health assessments are unlike the other temporary measur es listed in the definition of removal actions , like providing security fencing or monitor ing

the release of hazardous substances. They are not done at the cleanup site itself. And the enumeration of health assessments
as distinct from removal actions in § 9607(a)(4) resolves any6 doubt . So I would hold that health assessments are neither removal nor remedial actions.

Nor would a health assessment interfere with any response
action. On this record, I do not see how a health assessment

would obstruct or hinder any ongoing cleanup. Sure, it might require the EPA to take more action if the assessment revealed a significant risk. Id. § 9604(i)(11). And those extra actionsmight include “provi[ding] alternative water supplies, temporary evacuation and housing ,” all of which are listed removal

actions. Id. § 9604(23). But a health assessment is upstream from a response action. We lack jurisdiction over challenges to response actions only if they have been “selected.” Id.
§ 9613(h). But while an assessment may r equire new response
actions, it is not an attack on the response itself

.

* * * * *

In short, § 9613(h) turns on whether the action would interfere with a removal or remedial action, not whether the actor is the government. Neither medical monitoring nor he alth assessments would interfere with an ongoing cleanup. So I wouldhold that neither kind of requested relief turns a suit into a challenge.

I agree with the majority that the court

- supervised medical monitoring sought here is not a challenge and is not barred by sovereign immunity, so I concur in part and in the judgment. Because the majority finds that government

- led health assessments are challenges barred by § 9613(h), it does not address

wh ether sovereign immunity would bar those claims. So I too decline to reach that question.