Barg Coffin Lewis & Trapp, LLP Articles

August 1995

Medical Monitoring Claims Ruled Maintainable During Cleanup

Deborah Miller

The Ninth Circuit Court of Appeals has held that medical monitoring claims do not constitute a challenge to a removal or remedial action under Comprehensive Environmental Recovery, Compensation and Liability Act and may be maintained during the pendency of a site cleanup.

Plaintiffs filed tort claims in state court for medical monitoring, stemming from exposure to radioactive substances released around the Hanford Nuclear Reservation in eastern Washington, a Superfund site. The defendants removed the cases to federal court, where they were consolidatedx with other litigation related to the Hanford site. The district court dismissed all the medical monitoring claims on the ground of lack of subject matter jurisdiction, saying that such claims were premature "challenges" to an ongoing federal agency response under CERCLA Section 113(h).

The Ninth Circuit reversed. Section 113(h) of CERCLA (42 U.S.C. SS9613(h)) forbids a federal court from assuming jurisdiction "to review any challenges to removal or remedial action selected under section 9604 of this title. . ." Thus, the question was whether a medical monitoring claim isx a "challenge to removal or remedial action." CERCLA's definition of "remedial actions" (42 U.S.C. SS9601(23)) includes, "any monitoring reasonably required to assure that such actions [those consistent with permanent remedy taken instead of or in addition to removal actions] protect the public health and welfare and the environment."

Basing its decision on the recent case of Price v. U.S. Navy, 39 F.3d 1011 (9th Cir. 1994), the Ninth Circuit held that medical monitoring costs are not embraced within this definition of "remedial actions," which instead refers to preventing damage to public health by mitigating contact between contaminants and the public in the course of a hazardous waste cleanup. In addition, medical monitoring costs were not recoverable "response" costs under CERCLA Section 107(a)(4)(B).

The plaintiffs were thus allowed to maintain their independent action in federal court for medical monitoring costs, even though the cleanup of the Hanford site cleanup was ongoing.

Durfey v. E.I. DuPont de Nemours Co., No. 94-35371, 1995 U.S. App. LEXIS 16233 (9th Cir., July 5, 1995).

These materials are provided for information purposes only and are not intended as and cannot be considered legal advice. Before taking action based upon this information, you should consult your legal counsel.

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