Third Circuit Issued Two Rulings in Early October to Address Scope of CERCLA


In early October, the U.S. Court of Appeals for the Third Circuit rules in two Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) cases:

Giovani v. U.S. Department of the Navy

On October 2, the Third Circuit decided the case of Giovanni, et al., v. U.S. Department of the Navy. Affirming the District Court’s ruling in part, the Third Circuit’s view is that:

“[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.”

A number of families living in neighborhoods close to contaminated federal facilities owned and operated for many year by the U.S. Department of the Navy (the Navy) in Pennsylvania, filed lawsuits in state court under Pennsylvania’s Hazardous Sites Cleanup Act requesting that the Navy pay for medical monitoring and conduct a health assessment and health effects study, based on the plaintiffs’ apprehension of the effects of being exposed to hazardous substances released at these sites.

The hazardous substances of concern are perfluorinated compounds (PFCs) and perfluorooctanoic acid (PFOA). Groundwater sampling disclosed levels of contamination exceeding health advisory limits. The site is a CERCLA site listed on the National Priorities List (NPL) and a cleanup is underway.

The lawsuits were removed to federal court, and that District Court rendered its decision in accordance with the provisions of CERCLA pertaining to such claims. The District Court held that it did not have jurisdiction because of CERCLA’s jurisdictional bar against hearing such lawsuits while a cleanup was ongoing.

On appeal, the Third Circuit reversed, holding that requests for costs associated with private party medical monitoring were not barred by CERCLA because that kind of relief does not interfere with an ongoing cleanup; such monitoring is neither a “removal action” nor a “remedial action” subject to the jurisdictional bar. On the other hand, the claim for a “government-led” health assessment while the cleanup was ongoing was subject to this bar.

Pennsylvania Department of Environmental Protection v. Trainer Customer Chemicals

A few days later, on October 5, the Third Circuit issued its opinion in the case of Pennsylvania Dep’t of Environ. Protection v. Trainer Custom Chemical, et al. This is an interlocutory appeal based on the provisions of federal and state law.

The Pennsylvania Department of Environmental Protection (PADEP) sued the defendants under CERCLA and the state’s Hazardous Sites Cleanup Act, seeking to recover all of its response costs at the Stoney Creek Site—once the home of a manufacturing facility that utilized and released to the environment hazardous chemicals.

The defendant purchased the site at tax sale for $20,000, and after the transfer of the property, conducted its own demolition and salvage operations.. Apparently, the former owner of the site was unable to adhere to the state’s environmental regulatory requirements, necessitating a state cleanup costing Pennsylvania in the long run over $930,000.

The defendants were sued in the U.S. District Court for the Eastern District of Pennsylvania, and PADEP moved for summary judgment. The District Court held that the defendant was not liable for any costs that were incurred before the transfer of the property to the defendants.

On appeal, the Third Circuit reversed the District Court , holding that under the law the defendant was the ”owner “ of the facility, and was liable for “all costs”, including those incurred before the sale and transfer of the property. The Third Circuit notes, however, that the defendants may be able to use the contribution remedy provided by CERCLA at Section 113 (h) to recover at least some of its costs from other responsible parties.