PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 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 and as parent and 

natural guardian of V.G., a minor and D.G., a minor; 

ANTHONY GIOVANNI,

 Appellants in No. 17-2473

v.

UNITED STATES DEPARTMENT OF THE NAVY

DOROTHY PALMER; GEORGE PALMER,

 Appellants in No. 17-3196

v.

UNITED STATES DEPARTMENT OF THE NAVY

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Nos. 2-16-cv-04873 and 2-17-cv-00765)

District Judge: Hon. Gerald J. Pappert

_______________
2

Argued

April 26, 2018

Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges

(Opinion Filed: October 2, 2018)

_______________

Mark R. Cuker [ARGUED]

Amy Montemarano

Cuker Law

2005 Market Street – Ste. 1300

Philadelphia, PA 19103

Counsel for Appellants Kristen Giovanni, Charles 

Giovanni and Anthony 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. Kolman

Sonya J. Shea

Thomas J. Alford

Brian C. Toth

Jeffrey S. Beelaert [ARGUED]

United States Department of Justice

Environment & Natural Resources Division
3

P.O. Box 7611 

Ben Franklin Station

Washington, DC 20044

 Counsel for Appellee

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 – 19th Fl.

New York, NY 10005

Counsel for Amicus Appellants Brendan Boyle, Lori 

Cervera, Renee Frugoli, Hope Grosse, Yvonne Love, 

Minda Ruch, Joanne Stanton and Jacquelyn Rose 

Wiest

Kevin S. Hannon

1641 Downing Street

Denver, CO 80218

 Counsel for Amicus Appellant Toxics Action Center

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.
4

The Giovanni family and the Palmer family live in

neighborhoods close to contaminated federal facilities that 

were owned and operated for decades by the United States 

Navy. The families filed separate suits in state court under 

the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”), 35 

Pa. Cons. Stat. §§ 6020.101-.1305, seeking orders requiring

the Navy to pay for medical monitoring and to conduct a 

health assessment or health effects study that would include 

blood testing for themselves and others exposed to the 

hazardous substances released at the contaminated facilities. 

The Navy removed the cases to the United States District 

Court for the Eastern District of Pennsylvania, which

concluded that the claims fell within the ambit of the 

Comprehensive Environmental Response, Compensation and 

Liability Act (“CERCLA” or “the Act”), 42 U.S.C. §§ 9601-

9675, and were challenges under that Act to ongoing cleanup 

efforts at the facilities. Based on that, the Court further 

decided that it lacked subject matter jurisdiction over the 

cases and dismissed them. The Giovannis and Palmers now 

appeal those orders of dismissal. 

We will affirm in part. In our view, the claim for a 

health assessment or health effects study is barred, as the 

District Court said, because it challenges ongoing cleanup 

efforts. But we will vacate and remand in part because we

conclude that the medical monitoring claim is not a challenge 

under CERCLA and that it is not barred by sovereign 

immunity.
5

I. BACKGROUND FACTS1

The Navy owns a number of properties in 

Pennsylvania, including the Willow Grove Naval Air and Air 

Reserve Station in Horsham Township and the Naval Air 

Development Center in Warminster Township (collectively, 

“the Naval Facilities”). Because of the Navy’s activities, both 

facilities are contaminated with hazardous substances. 

Among the contaminants are perfluorinated compounds 

(“PFCs”), including perfluorooctanoic acid (“PFOA”) and 

perfluorooctanesulfonic acid (“PFOS”). 

Studies have identified the toxic effects that PFCs have 

on people, including increased risk of kidney cancer, 

testicular cancer, thyroid disease, ulcerative colitis, 

pregnancy-induced hypertension, and high cholesterol. And

 

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 336, 

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 poses health risks. It issued a 

non-binding provisional health advisory recommending a 

maximum combined PFOA/PFOS concentration in public 

drinking water of 70 parts per trillion (0.07 μg/L). 

Groundwater sampling at both the Naval Facilities

revealed that the PFOA and the PFOS levels exceeded the

health advisory levels. Those facilities, being in need of 

further investigation to determine the nature and extent of the 

public health and environmental risks associated with 

chemical contamination, have been added to the National 

Priorities List (“NPL”), which is also sometimes called the 

Superfund List.

2

 The Navy has begun environmental cleanup 

efforts, and the parties do not dispute that those efforts are 

ongoing in both places.

Kristen Giovanni, along with her husband Charles 

Giovanni, her son Anthony Giovanni, and two other minor 

children V.G. and D.G., lives across the street from the 

Willow Grove facility. The water from their private well had 

a combined PFOA/PFOS level of 2.88 μg/L, which exceeds

the concentration exposure threshold recommended by the 

 

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 

hazardous substances, pollutants, and contaminants. 

Superfund: National Priorities List (NPL), 

https://www.epa.gov/superfund/superfund-national-prioritieslist-npl (last visited June 25, 2018).
7

EPA. The Navy provided the Giovannis with bottled water 

for several months before it connected them to the 

Warrington Township public water supply. But even that 

public water supply is contaminated with PFCs. 

Dorothy Palmer, along with her son George Palmer, 

has lived less than one mile from the Warminster facility 

since 1981. For years, they used a private well on their 

property, until they learned about the PFOA and PFOS 

contamination in the groundwater. The water from their 

private well had a combined PFOA/PFOS level of 0.62 μg/L, 

which exceeds the combined exposure threshold 

recommended by the EPA. The Navy provided the Palmers 

with bottled water until it connected them to the Warminster 

Municipal Authority’s public water supply. Subsequent 

testing of that supply has revealed PFC contamination there 

too. 

II. PROCEDURAL HISTORY

The Giovannis filed a complaint against the Navy in 

the Montgomery County Court of Common Pleas, and the 

Palmers did the same in the Bucks County Court of Common 

Pleas. Both complaints alleged harm from the contaminated 

public and private water sources for residents around the 

Naval Facilities due to the Navy’s allegedly improper 

disposal of hazardous substances. Each complaint included a 

single state law claim under HSCA seeking, among other 

things, the costs of medical monitoring and an order 

compelling the Navy to conduct a health assessment or health 

effects study that would include blood testing for themselves, 

and “others exposed to the contaminants and hazardous 

substances released from the Warminster and Willow Grove 
8

[f]acilities[.]” (Palmer Appendix (“P.A.”) at 16.) They also 

alleged that the Navy waived its sovereign immunity pursuant 

to § 120(a)(1) of CERCLA, 42 U.S.C. § 9620(a)(1), and 

§ 6001(a) of the Resource Conservation and Recovery Act 

(“RCRA”), 42 U.S.C. § 6961(a). 

The Navy removed both cases to the District Court 

under 28 U.S.C. § 1442(a)(1). The Giovannis and Palmers 

then filed motions to remand their cases to state court. The 

Navy responded by moving to dismiss the cases without 

remand, which the Giovannis and Palmers opposed.

The District Court held a hearing on the competing 

motions in the Giovannis’ case. The parties agreed that 

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

the Court to deny the motion for remand. Ultimately, the 

Court dismissed the Giovannis’ complaint, and it issued a

thorough and detailed memorandum opinion to support its 

decision. It concluded that § 113(h) of CERCLA3 deprived it 

 

3

 Section 113(h), which is codified at 42 U.S.C. 

§ 9613(h), states:

(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 

section [121 of the Act] (relating to cleanup 

standards) to review any challenges to removal 

or remedial action selected under section [104 
9

 

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 reimbursement 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’ 

claims that the Navy should pay for medical monitoring and 

should provide a health study amounted to a challenge to the 

ongoing response actions at the Naval Facilities. The Court 

construed § 113(h) of CERCLA as depriving both it and the 

state courts of jurisdiction, and thus it dismissed the 

Giovannis’ case under the doctrine of derivative jurisdiction,

without remand. 

The District Court then disposed of the Palmers’ 

complaint in a footnote order granting the Navy’s motion to 

dismiss, “consistent with the Court’s Opinion in Giovanni[.]” 

(P.A. at 45.) In that order, the District Court rejected an 

additional argument raised by the Palmers, namely that the 

cleanup activities were initiated under § 120 of CERCLA4

 

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, 

legislative, 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 

Act]. 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 § 113(h)’s jurisdictional 

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

Facilities derived from § 104 of the Act,

5 not § 120. 

The Giovannis and Palmers filed these timely appeals. 

Amicus briefs have been filed in support of the Giovannis and 

Palmers by the following groups: (1) the Delaware 

Riverkeeper Network and Maya van Rossum, also known as 

the Delaware Riverkeeper; (2) the Toxics Action Center; and 

(3) Brendan Boyle, Lori Cervera, Renee Frugoli, Hope 

Grosse, Yvonne Love, Minde Ruch, Joanne Stanton, and 

Jacquelyn Rose Wiest, all of whom currently live or formerly 

lived near the Naval Facilities.6

 

42 U.S.C. § 9620(a)(1).

5

 Section 104 of CERCLA, which is codified at 42 

U.S.C. § 9604, authorizes the President “to 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. DISCUSSION7

We will affirm in part and vacate in part the District 

Court’s dismissal of the Giovannis’ and Palmers’ complaints 

and will affirm its decision not to remand to state court. 

Although the requests for a government-led health assessment 

or health effects study are barred under § 113(h) as challenges

to ongoing response actions, the requests for the costs 

associated with private party medical monitoring are not 

barred by that CERCLA provision because that relief does not 

interfere with or alter the ongoing cleanup efforts. Moreover, 

the relief sought by the Giovannis’ and Palmers’ on their 

medical monitoring claims is best characterized as injunctive 

relief, and the federal government has waived sovereign 

immunity to suits by private parties seeking such relief. We 

will therefore vacate the District Court’s dismissal of the 

 

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 jurisdiction 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 federal 

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’ requests for costs associated with 

private party medical monitoring and remand for further 

proceedings on those claims.

Our review of a district court’s grant of a motion to 

dismiss is plenary. Bell v. Cheswick Generating Station, 734 

F.3d 188, 193 n.5 (3d Cir. 2013). When there is a facial 

attack on subject matter jurisdiction under Federal Rule of 

Civil Procedure 12(b)(1), see supra note 1, “we review only 

‘the allegations of the complaint and documents referenced 

therein and attached thereto, in the light most favorable to the 

plaintiff.’” Schuchardt v. President of the U.S., 839 F.3d 336, 

343 (3d Cir. 2016) (quoting Gould Elecs. v. United States, 

220 F.3d 169, 176 (3d Cir. 2000)). Furthermore, “we 

exercise plenary review over a district court’s interpretation 

of CERCLA[.]” Agere Sys., Inc. v. Advanced Envtl. Tech. 

Corp., 602 F.3d 204, 216 (3d Cir. 2010). And our review of a 

“[d]istrict [c]ourt’s interpretation and application of legal 

rules and doctrines” is plenary. McBride v. Int’l 

Longshoremen’s Ass’n, 778 F.3d 453, 458 (3d Cir. 2015).

A. Lack of Jurisdiction Over “Challenges” 

Under § 113(h)

The Navy argues that federal courts are without 

jurisdiction to rule on the Giovannis’ and Palmers’ state law 

claims because they are barred under § 113(h) as “challenges” 

to ongoing cleanup efforts at the Naval Facilities. The 

Giovannis and Palmers, of course, disagree because, as they 

see it, their requested relief will not interfere with those 

ongoing efforts. We therefore first address whether state law 

claims seeking compensation to fund private party medical 

monitoring and state law claims seeking a government-led 
14

health assessment or health effects study are “challenges to 

removal or remedial action” under § 113(h).

8

 Our conclusion 

is that the latter are challenges but the former are not. To 

understand why, we turn to the pertinent portions of 

CERCLA.

That complex statute was enacted in 1980 “in response 

to the serious environmental and health risks posed by 

industrial pollution.” Burlington N. & Santa Fe Ry. Co. v. 

United States, 556 U.S. 599, 602 (2009). It gives “the 

President broad power to command government agencies and 

private parties to clean up hazardous waste sites.” Key Tronic 

Corp. v. United States, 511 U.S. 809, 814 (1994). CERLCA

was designed, in part, “to ensure that the costs of such 

cleanup efforts were borne by those responsible for the 

contamination.” Burlington N. & Santa Fe Ry., 556 U.S. at 

602 (internal quotation marks and citations omitted).

Section 113(b) of the Act provides that “the United 

States district courts shall have exclusive original jurisdiction 

 

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 

action 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 common 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 § 113(h), however, jurisdiction is 

unavailable under federal or state law “to review any 

challenges to removal or remedial action selected under 

section [104][9] ..., or to review any order issued under 

section [106(a).][10]” Id. § 9613(h). Courts have described 

 

9

 Section 104 of CERCLA defines response 

authorities under the Act, including the President’s authority 

to institute removal and remedial actions to clean 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 with 

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 

determines 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 to 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 to 
16

§ 113(h) as “a ‘blunt withdrawal of federal jurisdiction.’” 

McClellan Ecological Seepage Situation v. Perry, 47 F.3d 

325, 328 (9th Cir. 1995) (quoting N. Shore Gas Co. v. EPA, 

930 F.2d 1239, 1244 (7th Cir. 1991)). It applies to “any

challenges,” not just those brought under CERCLA. Id.

(emphasis added).

A well-established body of case law, including our 

own, provides guidance on what it means to “challenge” a 

response action. We have said that § 113(h) “clearly 

preclude[s] jurisdiction to delay or interfere with EPA cleanup activities[.]” Boarhead Corp. v. Erickson, 923 F.2d 1011, 

1023 (3d Cir. 1991). Other courts have noted that “[a] 

lawsuit challenges a removal action if it ‘calls into question’” 

the removal plan. Cannon v. Gates, 538 F.3d 1328, 1335 

(10th Cir. 2008) (citation omitted). Put in more concrete 

terms, “a suit challenges a removal action if it ‘interferes with 

the implementation of a CERCLA remedy’ because ‘the relief 

requested will impact the [removal] action selected.’”11 Id.

 

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. § 9606(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 challenge under § 113(h) because it “would clearly interfere 

with the cleanup”); Razore v. Tulalip Tribes of Wash., 66 
17

(alteration in original) (quoting Broward Gardens Tenants 

Ass’n v. EPA, 311 F.3d 1066, 1072 (11th Cir. 2002)); see also

Costner v. URS Consultants, Inc., 153 F.3d 667, 675 (8th Cir. 

1998) (indicating that a lawsuit is not a “challenge” under 

§ 113(h) if it “would not involve altering the terms of [a]

cleanup order” and “would result only in financial penalties”

(citation omitted)).

In some cases, “it may be necessary to assess the nexus 

between the nature of the suit and the CERCLA cleanup: the 

more closely related, the clearer it will be that the suit is a 

‘challenge.’” El Paso Nat. Gas Co. v. United States, 750 F.3d 

863, 880 (D.C. Cir. 2014). Even though practically any 

lawsuit could “increase[] the cost of a cleanup or divert[] 

resources or personnel from it[,]” that does not mean that 

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

automatically “challenges” the cleanup. McClellan, 47 F.3d 

at 330. Enforcement of minimum wage laws, for example, 

would have that effect, but seeking enforcement of such laws 

is too attenuated from the cleanup itself to be considered a 

challenge to the remediation activities. Id.

A suit challenges a response action if it would, for 

example, “dictate specific remedial actions and ... alter the 

method and order for cleanup[.]” Broward Gardens, 311 

F.3d at 1072 (first alteration in original) (quoting Razore v. 

Tulalip Tribes of Wash., 66 F.3d 236, 239 (9th Cir. 1995)). 

Conversely, a lawsuit does not challenge a response action if 

it does not “call into question the selected ... remedial or 

removal plan[.]” Id. at 1073.

 

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, we must also 

consider the meaning of the terms “removal” and “remedial” 

action as used in § 113(h). The statute defines “response” 

efforts to include “remove, removal, remedy, and remedial 

action[.]” 42 U.S.C. § 9601(25). Removal actions generally 

include short-term or immediate efforts, while remedial 

actions typically involve longer term activities. Black Horse 

Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 293 (3d 

Cir. 2000).

CERCLA defines the term “removal” to mean:

the cleanup or removal of released hazardous 

substances from the environment, such actions 

as may be necessary taken [sic] in the event of 

the threat of release of hazardous substances 

into the environment, such actions as may be 

necessary to monitor, assess, and evaluate the 

release or threat of release of hazardous 

substances, the disposal of removed material, or 

the taking of such other actions as may be 

necessary to prevent, minimize, or mitigate 

damage to the public health or welfare or to the 

environment, which may otherwise result from 

a release or threat of release. The term 

includes, in addition, without being limited to, 

security fencing or other measures to limit 

access, provision of alternative water supplies, 

temporary evacuation and housing of threatened 

individuals not otherwise provided for, action 

taken under section [104(b) of CERCLA], and 

any emergency assistance which may be 
19

provided under the Disaster Relief and 

Emergency Assistance Act [42 U.S.C.A. § 5121 

et seq.].

42 U.S.C. § 9601(23).

The even lengthier definition of “remedial action” is:

those actions consistent with permanent remedy 

taken instead of or in addition to removal 

actions in the event of a release or threatened 

release of a hazardous substance into the 

environment, to prevent or minimize the release 

of hazardous substances so that they do not 

migrate to cause substantial danger to present or 

future public health or welfare or the 

environment. The term includes, but is not 

limited to, such actions at the location of the 

release as storage, confinement, perimeter 

protection using dikes, trenches, or ditches, clay 

cover, neutralization, cleanup of released 

hazardous substances and associated 

contaminated materials, recycling or reuse, 

diversion, destruction, segregation of reactive 

wastes, dredging or excavations, repair or 

replacement of leaking containers, collection of 

leachate and runoff, onsite treatment or 

incineration, provision of alternative water 

supplies, and any monitoring reasonably 

required to assure that such actions protect the 

public health and welfare and the environment. 

The term includes the costs of permanent 

relocation of residents and businesses and 
20

community facilities where the President 

determines that, alone or in combination with 

other measures, such relocation is more costeffective than and environmentally preferable to 

the transportation, storage, treatment, 

destruction, or secure disposition offsite of 

hazardous substances, or may otherwise be 

necessary to protect the public health or 

welfare; the term includes offsite transport and 

offsite storage, treatment, destruction, or secure 

disposition of hazardous substances and 

associated contaminated materials.

42 U.S.C. § 9601(24).

With those definitions in mind, we analyze whether the 

relief requested by the Giovannis and Palmers constitutes a 

challenge under §113(h) to ongoing cleanup efforts at the 

Naval Facilities. We take a holistic approach that 

encompasses several considerations. One is whether the 

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

Another and closely related consideration is the specific form 

of relief requested and whether it would compel the defendant 

to take some action or refrain from taking some action, or 

instead seeks to have the defendant pay for a third party to 

provide services. A further consideration is whether, on the 

whole, there is reason to think that a given request for relief 

will conflict with, impact, or otherwise interfere with the

ongoing cleanup efforts.

12

 We address each of those three 

considerations seriatim.

 

12

 Our concurring colleague disagrees with our holistic 

approach and advocates a bright line test for determining 
21

1. Removal and Remedial Actions

The provision at issue here – § 113(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 it 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” before 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 collective 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 give 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 “interfere” 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). Thus, if the requested relief

can be classified as a removal or remedial action, it is 

possible that it will conflict with, impact, or otherwise 

interfere with an ongoing CERCLA cleanup for purposes of 

§ 113(h). The question, then, is whether the Giovannis’ and 

Palmers’ requests for relief – private party medical 

monitoring and a government-led health study – fit the 

statutory definitions of removal or remedial action.

a. Private Party Medical 

Monitoring

The text of the statute does not suggest that private 

party medical monitoring is a removal action. The reference 

to “monitor[ing]” in the definition of “removal” refers to 

“monitor[ing], assess[ing], and evaluat[ing] the release or 

threat of release of hazardous substances,” not the monitoring 

of individuals for latent diseases or injuries. 42 U.S.C. 

§9601(23). And while the definition of “removal” also 

includes “actions as may be necessary to prevent, minimize, 

or mitigate damage to the public health or welfare or to the 

environment, which may otherwise result from a release or 

threat of release,” when read in context of the other actions 

listed, medical monitoring does not appear to be 

contemplated. Id. It is a standard principle of statutory 

construction that “a word [or phrase] is known by the 

company it keeps[.]” Yates v. United States, 135 S. Ct. 1074, 

1085 (2015). That principle, known as noscitur a sociis,

counsels courts “to ‘avoid ascribing to one word [or phrase] a 

meaning so broad that it is inconsistent with its accompanying 

words [or phrases], thus giving unintended breadth to the 

Acts of Congress.” Id. (citation omitted). The other actions 

listed in the definition of “removal” refer to activities directly 
23

related to the physical removal, containment, assessment, or 

evaluation of hazardous waste, not broadly to all potential 

actions taken because of a toxic release. Furthermore,

because removal actions focus on the short term, it would be

odd to classify medical monitoring as a “removal” action,

given that medical monitoring is a way to address problems 

that only emerge over time.

Nor does the text support classifying private party 

medical monitoring as a remedial action. Although medical 

monitoring is certainly “consistent with [a] permanent 

remedy[,]” it is not taken “to prevent or minimize the release 

of hazardous substances.” 42 U.S.C. § 9601(24). And while 

the statutory definition of “remedial action” references “any 

monitoring reasonably required to ... protect the public health 

and welfare and the environment,” that monitoring expressly 

relates to the previously listed items in the definition, 

showing that the contemplated monitoring is “to assure that 

such actions protect the public health and welfare and the 

environment.” Id. (emphasis added). The referenced “such 

actions” all relate to physical remediation efforts, including 

dredging, excavations, diversions, repairs, incineration, 

neutralization, and trenching. See id. The text of the statute 

therefore does not easily support classifying private party 

medical monitoring as either a “removal” or a “remedial” 

action, and, consequently, it is not a response action. See 42 

U.S.C. § 9601(25) (defining “response” in terms of “removal” 

and “remedial” actions).

There is precedent for our interpretation. In Daigle v. 

Shell Oil Co., for example, the United States Court of 

Appeals for the Tenth Circuit held that medical monitoring 

does not meet the statutory definitions for removal and 
24

remedial actions because both definitions were “directed at 

containing and cleaning up hazardous substance releases[,]” 

not “[l]ongterm health monitoring.” 972 F.2d 1527, 1535 

(10th Cir. 1992); see also Price v. United States Navy, 39 

F.3d 1011, 1016-17 (9th Cir. 1994) (concluding, in the 

context of a response cost analysis under § 107(a) of 

CERCLA, 42 U.S.C. § 9607(a), that “medical monitoring” 

does not fit the definition of “removal” or “remedial” action 

as defined under CERCLA); cf. Syms v. Olin Corp., 408 F.3d 

95, 105 (2d Cir. 2005) (same).13

The District Court distinguished those cases by stating 

that they involved an assessment of whether medical 

monitoring expenses are response costs. It said that the 

reasoning in those cases is “flawed because it assumes that 

‘response costs’ and ‘response’ mean the same thing under 

CERCLA,” but “[t]hey do not.” (Giovanni Joint Appendix 

(“G.J.A.”) at 114.) The Court determined instead that, while 

 

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 114-15.) Therefore, it concluded, it “does not follow that 

all ‘response costs’ are necessarily ‘removal and remedial 

actions.’” (G.J.A. at 115.) We disagree with that analysis.

As the District Court noted, those particular cases cited 

by the Giovannis and Palmers were deciding whether a 

private party could recover the costs of medical monitoring 

under CERCLA, which required an assessment of whether 

medical monitoring expenses were “response costs” under

§ 107(a).14 But the District Court’s heavy reliance on a 

distinction between the terms “response” and “response cost” 

is not sound. It is true that CERCLA defines “response,” but 

not “cost” or “response cost.” See 42 U.S.C. § 9601; cf. 

Redland Soccer Club, Inc. v. Dep’t of Army of U.S., 55 F.3d 

827, 849 (3d Cir. 1995) (“The absence of a definition of 

‘response costs’ has been the source of much litigation since 

CERCLA’s enactment.”). Yet to discount the cases cited by 

the Giovannis and Palmers simply because they speak most 

directly to “response costs” rather than “response” actions, is, 

we believe, to miss their significance. Those cases undertake 

practically identical analyses to determine whether medical 

monitoring is a “removal” or “remedial action,” and thus 

necessarily a “response,” en route to determining whether it is 

 

14

 Section 107(a), a provision for cost recovery claims, 

is one mechanism CERCLA provides for potentially 

responsible 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, including § 107(a)).
26

a “response cost.” See Durfey v. E.I. DuPont de Nemours & 

Co., 59 F.3d 121, 124-25 (9th Cir. 1995); Yslava v. Hughes 

Aircraft Co., 845 F. Supp. 705, 708-09 (D. Ariz. 1993). 

Regardless of the relationship between “response” and 

“response cost,” the cases concluded that private party 

medical monitoring is not a “response” action and so, by 

definition, is neither a removal or remedial action. Durfey, 59 

F.3d at 125; Yslava, 845 F. Supp. at 709.

The Navy argues that medical monitoring should 

nevertheless be considered a “removal or remedial action” 

under CERCLA because of that statute’s provisions 

concerning the Agency for Toxic Substances and Disease 

Registry (“ATSDR”). The ATSDR was created when

CERCLA was enacted in 1980, and its purpose is the 

“compiling [of] health effects information[.]” 2 Susan M. 

Cooke, The Law of Hazardous Waste § 12.04[2][f]. When 

CERCLA was amended by the Superfund Amendments and 

Reauthorization Act of 1986 (“SARA”), Congress recognized 

“that inadequate attention had been given to the health effects 

of contaminants found at Superfund sites[.]” Id. Thus, it 

expanded the role of the ATSDR. Id. § 12.05[2][h].

The charge given to the agency is to “effectuate and 

implement [CERCLA’s] health related authorities[.]” 42 

U.S.C. § 9604(i)(1). It is expressly authorized to “establish[] 

a health surveillance program[,]” id., and, in some instances,

the statute requires it to initiate such a program, id.

§ 9604(i)(9). Health surveillance programs must include, but 

are not limited to, “periodic medical testing where appropriate 

of population subgroups to screen for diseases for which the 

population or subgroup is at significant increased risk ... [, 

and the programs further include] a mechanism to refer for 
27

treatment those individuals within such population who are 

screened positive for such diseases.” Id.

Agreeing with the Navy, the District Court said that, 

because those CERCLA provisions relating to the ATSDR 

provided for a program that included “both periodic medical 

testing ... and a mechanism to refer for treatment anyone who 

needs medical attention[,]” the medical monitoring requested 

by the Giovannis was a “removal” or “remedial” action as 

defined by the statute. (G.J.A. at 112 n.6.) The Court did not

explore the connection, though, between CERCLA’s 

definitions of “removal” or “remedial” action and its 

provisions relating to the 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 thoroughly considered whether the ATSDR’s

health “surveillance activit[ies] ... [are] removal or remedial 

action[s] entitled to the protection of [§ 113(h)].” Hanford 

Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469, 1475 

(9th Cir. 1995). It decided that they are, explaining that the 

pertinent statutory provision – § 104 – 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 

§ 104 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 public 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 ‘health 
28

related’ should be read narrowly as a means to distinguish 

between different types of response authorities, rather than 

interpreted broadly as an effort to differentiate ATSDR health 

... surveillance activity from response actions protected by 

[§ 113(h)].”15 Id.

Significantly, the court did not believe that its 

conclusion undermined its previous 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 remedial 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 privileges 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 provided by the Ninth Circuit Court in 

Hanford is persuasive. We adopt it, with the conclusion that 

CERCLA distinguishes between private party medical 

monitoring activities and government-led health 

surveillance.16 Private party medical monitoring falls outside 

of the definition of response action, but government-led 

monitoring does not.17

 

16

 The Ninth Circuit 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 a 
30

Accordingly, the Giovannis’ and Palmers’ requests for 

an order compelling the Navy to pay for the costs associated 

with private party medical monitoring is relief that falls 

outside of CERCLA’s definition of “removal or remedial 

action.” And that counsels in favor of concluding that their

requests do not, under § 113(h), constitute a jurisdictionstripping challenge to an ongoing CERCLA response action.

b. Health Assessment or Health 

Effects Study

We turn next to the Giovannis’ and Palmers’ requests

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 statutory 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). 

Those 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 provisions, 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 government in 

a cleanup.
31

statute’s definition of removal action for the same 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 does

not align with the subsequent 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, the existence of 

potential pathways of human exposure 
32

(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 “conducting epidemiological studies[.]” Id. If 

such a health assessment leads the ATSDR Administrator to 

conclude “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 discussed 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 comparison of 

expected human exposure levels to the shortterm 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 morbidity 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 evaluating 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 § 113(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 governmental 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 requests for private party medical 

monitoring, the Giovannis’ and Palmers’ requests that the 

District Court order the Navy to conduct a health assessment 

or health effects study, including blood testing, do constitute

removal or remedial actions for purposes of § 113(h). 

Because the ATSDR has authority to conduct health 

assessments 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 action under CERCLA.

Therefore, we agree with the District Court’s 

determination that the requested relief mandating that the 

Navy perform a health assessment or health effects study is a 
34

response action under CERCLA, which suggests that it is a 

challenge under § 113(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 governmentled health effects studies; it does not demonstrate 

unambiguous congressional intent to remove government-led 

health effects studies from the ambit of all 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 proof 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. But 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 1479-80. If Congress thought that the courts had 
35

2. Form of Relief Requested

When assessing whether a claim challenges an 

ongoing cleanup effort, courts have also distinguished among 

forms of relief as they affect the defending party.

20

 

Generally, requests for injunctive relief that relate in any way 

to pending response actions are viewed as challenges under 

§ 113(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. See, 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 require little more of the defendant than the expenditure 

of money are generally not considered to be “challenges”

under § 113(h). See, e.g., Beck v. Atl. Richfield Co., 62 F.3d 

1240, 1242-43 (9th Cir. 1995) (concluding that a request for 

compensatory damages 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 themselves reasoned conclusions. The 

effect that the sought-for relief has on the cleanup is what

must be determinative, not the label a party or court uses to 

describe the claim for relief. For example, a request that the 

defendant pay damages could constitute a challenge under 

§ 113(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 remediation). 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” and 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 

Monitoring

Focusing on the specific relief requested here, payment 

for the costs of a private party medical monitoring program 
37

does not appear to be a challenge under § 113(h). The prayer

for relief at the end of each complaint expressly states that the 

Giovannis 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 nothing 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 § 113(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-ofrelief lens, appears in contrast to be a challenge under 

§ 113(h) to ongoing response efforts at the Naval Facilities. 

That relief amounts to a demand that the Navy take on 

additional efforts related to cleaning up the contamination at 

those Superfund sites. Although the 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 the 
38

plaintiffs in McClellan, who wanted the court to impose 

additional RCRA reporting and permitting requirements upon 

an ongoing cleanup, the requested injunctive relief here 

would interfere with the ongoing cleanup efforts at the Naval 

Facilities because it would modify or replace the existing 

remedial plan. The 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 § 113(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, impact, or otherwise interfere with an 

ongoing cleanup effort. See Boarhead, 923 F.2d at 1023 

(indicating that § 113(h) bars lawsuits that will “interfere 

with” ongoing remediation activities); see also Cannon, 538 

F.3d at 1335 (stating that § 113(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’ 

requests for the costs of private party medical monitoring will 

conflict with, impact, or otherwise interfere with the ongoing 

cleanup efforts at the Naval Facilities. It will “in no way 

impede[] the progress of the government’s ongoing 

assessment and cleanup” at the contaminated site. Yslava, 

845 F. Supp. at 710; see also Durfey, 59 F.3d at 126 (holding 

that the plaintiffs’ claim for private party medical monitoring 
39

costs under state tort law was not a “challenge” to an ongoing 

CERCLA cleanup under § 113(h)). Moreover, an order 

requiring the Navy to pay 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). Although any 

money the Navy would provide to fund private party medical 

monitoring could divert funds from the cleanup efforts at the 

Naval Facilities, that is insufficient, standing alone, to render 

such relief a challenge under § 113(h). See, e.g., El Paso Nat. 

Gas, 750 F.3d at 880 (“[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 claims are barred by § 113(h) because they 

challenge the ongoing cleanups at the Naval Facilities. In so 

holding, it relied heavily on our decision in Boarhead. We

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

EPA would 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 § 113(h) was “designed to prevent timeconsuming 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 the 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 

ongoing 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).)

That 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. The plaintiff was thus directly interfering with the 

EPA’s ability to conduct a cleanup because it was seeking 

injunctive relief that would certainly have altered the existing 

remedial plans. The facts here are quite different. The 

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

the costs of 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. The Navy freely 

admits that it “generated hazardous waste” and “released 

PFOA and PFOS” contaminants at the Naval Facilities. 

(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 § 113(h) 

because, in its view, those cases failed to explain why state 
41

law medical monitoring claims are not disputes about who is 

responsible and hence, under § 113(h), should be dealt with

after the cleanup is complete. But we should not 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 was 

contaminated with radioactivity during 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 Giovannis’ and 

Palmers’ requests for the costs of private party medical 

monitoring were challenges for purposes of § 113(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’ requests 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 

Facilities. 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.3d 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 according to criteria articulated in 
42

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’ requests for a government-led health study are

challenges for purposes of § 113(h) is supported by the case 

law.

In sum, we conclude that the Giovannis’ and Palmers’

requests for funds to establish a private party medical 

monitoring program are not challenges for purposes of

§ 113(h),

21 but their requests for an order mandating that the 

Navy conduct a health assessment or health effects study are. 

We therefore lack jurisdiction to review those latter requests

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.2d 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 that 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 different 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

Notwithstanding any argument under § 113(h), the 

Palmers argue that the cleanup activities at the federal Naval 

Facilities were initiated under § 120 rather than § 104, and 

thus that § 113(h) is inapplicable to bar their state-law claim. 

The Navy counters that § 120 merely describes additional 

procedures unique to federal land, and does not confer any 

authority outside of that already granted in § 104. We agree 

with the Navy.

Section 113(h), by its plain text, bars “challenges to 

removal or remedial action selected under section [104] of 

[CERCLA.]” 42 U.S.C. § 9613(h). Section 104 broadly 

prescribes the applicable response authorities available under 

the statutory scheme. See 42 U.S.C. § 9604. Meanwhile, 

§ 120, which is titled “Federal facilities[,]” describes the 

application of CERCLA’s provisions to federal facilities.

Our analysis of a statute begins, of course, with the 

text. Haberle, 885 F.3d at 178. Section 104 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 authority 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 nonSuperfund sites. Furthermore, § 101(9) provides a definition 
44

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 § 104 authorizes the 

President to take response actions at any facility with respect 

to any hazardous release, including a federal facility listed on 

the NPL.

Section 120, 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 procedurally 

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, lagoon, 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 any 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 facilities. See generally id. § 9620. One of the 

subsections of § 120 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 United States or to any other 

person.” Id. § 9620(g). While that suggests that some 

authority has been granted to the federal government under 

§ 120, that does not mean that the authority is necessarily 

independent from, and did not otherwise already exist in 

some form, under § 104 or some other section of CERCLA. 

Section 120 is best understood as clarifying the application of 

already existing CERCLA authority, like § 104, 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 that 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, 

that is not the most logical reading. A better reading is that 

the President simply did not delegate the full scope of his 
46

Other courts have similarly concluded that § 120 is not 

an independent and wholly separate grant of authority from 

§ 104 for the cleanup of federal facilities. In Werlein v. 

United States, the court held that a remedial action at a

federal facility was taken “under section [104], subject to the 

requirements of section [120].” 746 F. Supp. 887, 892 (D. 

Minn. 1990), vacated in part on other grounds, 793 F. Supp. 

898 (D. Minn. 1992). It reasoned that § 104(a)(1) grants 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 § 120 “provides a road map for application of CERCLA 

to federal facilities[,]” and that there would be little reason for 

the President to delegate response authority to the Secretary 

of Defense “[i]f section [104] did not apply to federal 

facilities.” Id. at 891-92. Although it acknowledged that 

some aspects of § 120 could be read to suggest it was 

providing a “separate and distinct” source of cleanup 

authority for federal facilities, the court said it was better to 

consider § 120 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 supported 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 

§ 104, not § 120).24

Section 120 does create unnecessary tension with a 

logical reading of § 104, 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].”), 

overruled 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 draftsmanship[.]”); 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

interpreting 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 could 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 reasonable” 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 could 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 Facilities have been 

undertaken pursuant to § 104, subject to the requirements of 

§ 120.25

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 whether 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 claims, 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 those 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, agency, 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. 1995) 
50

Section 6001(a) of RCRA provides that each 

department 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[.]” 42 U.S.C. 

§ 6961(a). Moreover, it provides that “[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 

administrative penalty or fine ...).” Id. That waiver is wordy 

but the 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 government, 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 monitoring 

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 medical 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 better 

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 Federal 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) (same). 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 depending 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 the 
52

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, 

592 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 for medical 

monitoring under HSCA. We have noted that, in Redland 

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. It characterized the plaintiffs in that 

case as having “requested equitable relief ... in the form of a 

medical monitoring trust fund[.]” Id. It then explained that 

the relief available 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 the plaintiff can spend as 

he or she sees fit. Various courts have 

advocated the trust fund approach instead 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 concluded that the type of 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 courts 

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 that a medical monitoring claim can be something 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. The 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 evidence 
54

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 adopting the idea “that medical monitoring costs 

themselves represent a separate negligently caused economic 

‘injury[]’ ... permitting (as tort law ordinarily permits) 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. 

The Court described that body of law as revealing “that the 

cases authorizing recovery 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 amount 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 courtsupervised fund 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 evolving 
55

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 

compensate 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 monitoring 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 understood as 

requests for injunctive relief.27

Because 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. CONCLUSION

For the foregoing reasons, we will affirm in part and 

vacate and remand in part the orders 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 characterize claims for relief outside 

those limited circumstances.
1

BIBAS, Circuit Judge, concurring in part and concurring in the 

judgment.

I agree 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.27. 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 nor 

health assessments qualify as “challenges to removal or remedial action[s].” 42 U.S.C. §9613(h). I agree with the majority 

that private medical monitoring is not a challenge. But my conclusion would not change if the plaintiffs sought medical monitoring by the government. The same is true for health assessments.

I. WE SHOULD ADOPT THE D.C. CIRCUIT’S 

INTERFERENCE TEST

To determine what a forbidden “challenge” is, the majority 

takes a “holistic approach.” Maj. Op. at 20. It addresses each 
2

of our sister circuits’ varied tests and applies them all. But 

adopting divergent tests leaves district courts without a workable framework. 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 claims are unlikely to call 

the remedial plan “into question.” Broward, 311 F.3d at 1073. 

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 could 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 

majority relies on all three of those opinions, plus El Paso. Maj. 

Op. at 16-17. I do not know how district 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 into 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. Circuits agree 

that the statutory requirement of a “challenge” means “interference” 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 simply add that “interfere” should carry its ordinary 

meaning: to “obstruct[] or hind[er].” Interference, Black’s 

Law Dictionary 831 (8th ed. 2004).

II. MEDICAL MONITORING IS NOT A RESPONSE ACTION

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 on by the 

majority, is unpersuasive. Maj. Op. at 27-29. 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 relevant provisions say nothing about who does 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 14 (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 suit 

seeking medical monitoring as “challenges to removal or remedial action.”

III. Nor Are Health Assessments Response Actions

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 

national 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; and
5

(D) the costs of any health assessment or health 

effects study carried out under section 9604(i) of 

this title.

42 U.S.C. §9607(a)(4) (emphases added). Since the 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 Reauthorization 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 provided 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 that 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 individual 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 measures listed in the definition of removal actions, like providing security fencing or monitoring 

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 any 
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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 actions 

might 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 require 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 health assessments would interfere with an ongoing cleanup. So I would 

hold 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 

whether sovereign immunity would bar those claims. So I too 

decline to reach that question.