On January 15, 2020, Judge Gerald J. Pappert of the Eastern District of Pennsylvania dismissed two groups of private plaintiffs’ claims against the United States Navy regarding perfluorocarbon contamination, PFOS and PFOA, in drinking water supplies around former Navy facilities in Bucks and Montgomery Counties, Pennsylvania. Giovanni v. U.S. Dept. of Navy, No. 16-4873, 17-765, -- F.Supp.3d --, 2020 WL 224683 (E.D. Pa. Jan. 15, 2020).

In a previous 2018 decision in the same cases, the Third Circuit held that the private plaintiffs surrounding the former military facilities could not recover on their claims for medical monitoring and for a health assessment under CERCLA because Section 113(h) of CERCLA precludes external “challenges” to a remedy selected under its provisions. Giovanni v. U.S. Dept. of Navy, 906 F.3d 94, 109­ & 111 (3d Cir. 2018). The Third Circuit’s decision did, however, note that private, state law medical monitoring claims would not be precluded as a “challenge” to the CERCLA remedy. Id. at 110. This ruling left open the possibility that the plaintiffs could recover under a private, state law medical monitoring theory.

The plaintiffs thus re-filed a single count complaint seeking medical monitoring pursuant to Pennsylvania’s Superfund equivalent, the Hazardous Site Cleanup Act (“HSCA”). 35 P.S. § 6020.1115. But in its decision this month, the Eastern District Court found that the private plaintiffs could not obtain medical monitoring relief under HSCA because perfluorocarbons like PFOS and PFOA were not yet listed among the “hazardous substances” recognized by that law. Giovanni, 2020 WL 224683 at *7.

Evidently recognizing the plaintiffs’ likely frustration with this ruling and the law’s adaptation (or lack thereof) to emerging contaminants like PFOS and PFOA, Judge Pappert reflected to conclude his opinion that “[t]he inherent vagaries of the legislative or regulatory processes aside, the issue is not whether someone in Harrisburg or Washington may someday mold the law to Plaintiffs' current theory. The issue is whether the Plaintiffs can state a claim for relief under the current law.” Id. at *8. This ruling makes clear the bounds of Pennsylvania state law with respect to medical monitoring for emerging contaminants and clarifies the alternatives or lack thereof for plaintiffs precluded from private action under Section 113(h) of CERCLA.

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