Written By Joe Capozzoli | 9 minute read
On August 18, 2026, the D.C. Circuit rejected industry petitions challenging EPA’s designation of PFOA and PFOS as hazardous substances under CERCLA.[1] The designation stands, bringing renewed attention to contaminated sites and the communities surrounding them. For residents concerned about exposure, cleanup is only part of the problem. They also want to know who will pay for medical testing that could detect disease before symptoms appear. Medical monitoring is that remedy, and it is a creature of state law.
But when that state-law remedy is sought for contamination at a National Priorities List site, the claim meets a two-front objection. The claim “arises under” CERCLA, the defendant says, and so belongs in federal court under § 113(b), which gives the district courts “exclusive original jurisdiction over all controversies arising under [CERCLA].”[2] Yet the federal courts lack jurisdiction too, because § 113(h) withdraws jurisdiction, under federal or state law, “to review any challenges to removal or remedial action selected under section [104].”[3] Courts have called that provision “a ‘blunt withdrawal of federal jurisdiction’” that reaches “any challenges,” not merely those brought under CERCLA.[4] If both arguments succeed, plaintiffs are left in a jurisdictional paradox with no forum in which to assert their claims.
Two decisions have narrowed that jurisdictional pincer. In Atlantic Richfield Co. v. Christian (“ARCO”), the Supreme Court confined each of CERCLA’s jurisdictional provisions to the work its text describes.[5] In Giovanni v. United States Department of the Navy, the Third Circuit separated private monitoring claims from government-led health assessments.[6] Together, the decisions clarify when medical monitoring claims may proceed and when CERCLA bars them. That carveout preserves a remedy for individuals living within the bounds of Superfund sites who are exposed to hazardous pollution every day.
Two provisions, two jobs
In ARCO, the Supreme Court rejected an expansive reading of CERCLA’s jurisdictional provisions. As the Court explained, “[s]ection 113(b) deprives state courts of jurisdiction over cases ‘arising under’ the Act — just as it says — while § 113(h) deprives federal courts of jurisdiction over certain ‘challenges’ to Superfund remedial actions — just as it says.”[7] Whether a claim “arises under” CERCLA depends on the source of the legal right asserted, not where the alleged contamination occurred. A state common-law claim does not arise under CERCLA merely because the conduct that produced it contaminated a listed site.
CERCLA’s savings clauses confirm the point. Section 114(a) preserves a state’s power to impose “any additional liability or requirements with respect to the release of hazardous substances within such State,” while § 302(d) preserves “the obligations or liabilities of any person under other Federal or State law, including common law.”[8] Against that backdrop, displacing state law requires a clear statement, and the Court declined to infer one: “We would not expect Congress to take such an extraordinary step by implication.”[9]
Private monitoring is not a response action
The next question is whether medical monitoring constitutes a challenge to a CERCLA response action under § 113(h). CERCLA defines “response” to include removal and remedial actions.[10] Removal actions are generally short-term, while remedial actions are typically longer-term.[11] Neither category reaches the monitoring of people for latent disease.
The reference to “monitor[ing]” in § 9601(23) concerns “monitor[ing], assess[ing], and evaluat[ing] the release or threat of release of hazardous substances,” not monitoring individuals for disease or injury.[12] The definition also covers “such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare,” but the Third Circuit read that phrase in context.[13] The surrounding items concern the physical removal, containment, assessment, or evaluation of hazardous waste.[14] It would also be incongruous to classify medical monitoring, which addresses health risks that may emerge years after exposure, as a short-term removal action.[15]
That conclusion is not the Third Circuit’s alone. The Tenth Circuit reached the same result first, reading both definitions as “directed at containing and cleaning up hazardous substance releases,” not “[l]ong-term health monitoring.”[16]
Where courts draw the line
The cases that have barred medical monitoring claims share a similar feature: the monitoring at issue involved governmental health surveillance conducted under explicit CERCLA authority, typically by the Agency for Toxic Substances and Disease Registry (ATSDR) under § 104(i).[17] In Hanford Downwinders, the Ninth Circuit separated the two, holding that private medical monitoring undertaken independently of an ongoing cleanup is not a removal or remedial action, while health surveillance conducted by a government agency under explicit CERCLA authority is.[18] That divide, the court explained, is “rooted in the distinction Congress drew between public and private efforts to monitor the public health.” When Congress expanded the government’s surveillance role through ATSDR, it did not restore the personal rights of recovery that had been excised from CERCLA’s original drafts.[19]
Giovanni is the cleanest illustration, because the same plaintiffs pressed claims on both sides of that divide at once. Their request for private medical monitoring under state hazardous waste law was not a § 113(h) challenge, but their request for a government-led health assessment, including blood testing, was.[20] Because ATSDR already had authority to conduct health assessments at contaminated facilities, ordering another agency to duplicate that work would interfere with a response action.[21] Private monitoring, by contrast, “falls outside of the definition of response action.”[22]
A second, independent hurdle
Even when a claim concerns a response action, § 113(h) reaches only suits that would “dictate specific remedial actions and . . . alter the method and order for cleanup.” A suit that does not “call into question the selected . . . remedial or removal plan” is not a challenge.[23] A defendant-funded monitoring fund does none of those things. It “will not delay or interfere with government cleanup activities,” and “[t]he implementation of medical monitoring does not require the EPA to engage in any litigation whatsoever.”[24] Nor does such a suit involve a “potentially responsible party contesting their liability under CERCLA,” the type of litigation § 113(h) is designed to prevent from delaying cleanup.[25]
What this permits
These decisions do not categorically bar medical monitoring claims. Instead, they show how such claims can proceed without interfering with CERCLA’s cleanup process. A claim is less likely to be barred when it:
rests on state law rather than CERCLA;[26]
is brought by private plaintiffs and funded by judgment or settlement, rather than by an agency or a cost-allocation agreement;[27]
is administered by a trustee answerable to the court, rather than to EPA;
seeks to compensate exposed individuals, rather than measure the performance of a selected remedy;[28] and
asks nothing of EPA, a state environmental agency, ATSDR, or settling defendants acting in their remedial capacity.[29]
A claim built that way requires no agency action, no agency approval, and no agency resources. By contrast, a complaint that asks a court to order a government-led health study, modify a monitoring component of a record of decision, or redirect remedial funds may cross into response-action territory, as Giovanni illustrates.[30]
After ARCO, the fact that the exposure occurred at a listed site is rarely dispositive. The more important question is whether the relief sought challenges or interferes with the selected remedy. Where the answer is no, CERCLA leaves the claim where its savings clauses left it: in state court, under state law, as a personal remedy for the risk of latent injury.
About the Author
Joe Capozzoli
Joe Capozzoli is an Associate at Burns Charest in New Orleans, representing clients in complex litigation matters, with a focus on class actions, mass torts, and toxic torts. A 2025 graduate of Loyola University New Orleans College of Law, Joe is admitted to practice in Louisiana state court and is an active member of the Federal Bar Association.
[1] Chamber of Com. of the U.S. v. EPA, 187 F.4th 636 (D.C. Cir. 2026).
[2] 42 U.S.C. § 9613(b).
[3] Id. § 9613(h).
[4] 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)).
[5] Atl. Richfield Co. v. Christian, 590 U.S. 1 (2020).
[6] Giovanni v. U.S. Dep’t of the Navy, 906 F.3d 94 (3d Cir. 2018).
[7] Atl. Richfield, 590 U.S. at 15.
[8] 42 U.S.C. §§ 9614(a), 9652(d).
[9] Atl. Richfield, 590 U.S. at 15–16.
[10] 42 U.S.C. § 9601(25).
[11] Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 293 (3d Cir. 2000).
[12] Giovanni, 906 F.3d at 106.
[13] See Yates v. United States, 574 U.S. 528, 543 (2015).
[14] Giovanni, 906 F.3d at 106.
[15] Id.
[16] Daigle v. Shell Oil Co., 972 F.2d 1527, 1535 (10th Cir. 1992); see also Price v. U.S. Navy, 39 F.3d 1011, 1016–17 (9th Cir. 1994); cf. Syms v. Olin Corp., 408 F.3d 95, 105 (2d Cir. 2005).
[17] 42 U.S.C. § 9604(i).
[18] Hanford Downwinders Coal., Inc. v. Dowdle, 71 F.3d 1469, 1477 (9th Cir. 1995).
[19] Id. at 1478–79.
[20] Giovanni, 906 F.3d at 110–12.
[21] Id. at 111–12.
[22] Id. at 109.
[23] Broward Gardens Tenants Ass’n v. EPA, 311 F.3d 1066, 1072–73 (11th Cir. 2002) (quoting Razore v. Tulalip Tribes of Wash., 66 F.3d 236, 239 (9th Cir. 1995)); see also Cannon v. Gates, 538 F.3d 1328, 1335 (10th Cir. 2008); Costner v. URS Consultants, Inc., 153 F.3d 667, 675 (8th Cir. 1998).
[24] Yslava v. Hughes Aircraft Co., 845 F. Supp. 705, 710 (D. Ariz. 1993).
[25] Id. (quoting Reardon v. United States, 947 F.2d 1509, 1513 (1st Cir. 1991) (en banc)).
[26] See Atl. Richfield, 590 U.S. at 12–14; 42 U.S.C. §§ 9614(a), 9652(d).
[27] See Giovanni, 906 F.3d at 109, 112; Hanford Downwinders, 71 F.3d at 1477.
[28] See Daigle, 972 F.2d at 1535 (characterizing long-term health monitoring of exposed individuals as “smack[ing] of a cause of action for damages resulting from personal injury”); Giovanni, 906 F.3d at 106–07.
[29] See Giovanni, 906 F.3d at 112; Yslava, 845 F. Supp. at 710; cf. Broward Gardens, 311 F.3d at 1073 (holding that a suit seeking to alter the remedial plan implemented through a consent decree was a challenge under § 113(h)).
[30] See Giovanni, 906 F.3d at 110–11, 113.
