Third Circuit to decide right of exposed residents to receive medical monitoring for PFAS

For decades, the United States Navy has been conducting routine fire fighting trainings at several bases across the country. Two such facilities are the Willow Grove Naval Air Station Joint Reserve Base (Base) in Willow Grove, PA and the Naval Air Development Center (NADC) in Warminster, PA. The fire fighting foam used in high quantities during such trainings is known to contain two highly toxic chemicals: PFOA (perfluorooctanoic acid) and PFOS (perfluorooctanesulfonic acid).Both the Base and NADC were deemed Superfund sites and placed on the National Priorities List (NPL) of hazardous waste sites in 1997. Since both the Base and NADC are located in close proximity to several residential areas, contamination from these sites has entered the surrounding water supply, threatening the health of thousands of residents.

Kristen Giovanni, her husband, and their three sons have lived across the street from the Base since 2003. In 2014, they discovered that the private well that they had been using for all domestic water purposes contained very high levels PFOA and PFOS. Both have been linked to various cancers and other serious diseases. Due to the threat posed by their exposure to these chemicals, the Giovannis filed suit against the United States in Giovanni v. U.S. Department of the Navy, demanding that the Navy provide them with medical monitoring, health assessments, and blood testing.

The federal judge ruled that a medical monitoring claim cannot be brought against a potentially responsible party at a Superfund site until the cleanup is completed, because it is considered a “challenge” to a “removal or remedial action.” The court defined a “removal or remedial action” as one that is “necessary to prevent, minimize, or mitigate damage to public health” (emphasis by the court), and therefore held that “assessing the effects on public health is integral part of implementing a remedial action.”

The Giovannis have appealed this decision, asserting that, by nature of this definition, removal and remedial actions are designed to prevent the exposure situation from worsening, not to address physical harm caused by past exposure. Therefore, providing medical monitoring to individuals who have already suffered harm does not challenge a removal or remedial action. Nor would providing the family with medical monitoring and health assessments interfere with the cleanup of the Base.

These sites have been listed on the NPL for twenty years already without completion of the cleanup in sight. Even if the cleanup were completed, the plaintiffs would not be able to bring this claim until the site is delisted from the NPL, which requires another five years of review post-cleanup. If this decision stands, it will therefore effectively make it impossible for any victim of chemical exposure from a Superfund site in the Third Circuit to receive medical monitoring.

Medical monitoring is absolutely critical for the exposed residents because exposure to these chemicals has already demonstrated serious, life-threatening, and often irreparable consequences.. Recently, several affected residents have filed amicus briefs to illustrate the importance of providing medical monitoring for affected residents. Their accounts follow.

Brendan Boyle grew up down the street from NADC. Both his parents and his brother died from cancer, and his son was also diagnosed with cancer. Brendan wants to do everything possible to protect himself, his family, and the community from the risks of exposure to contaminants from NADC; he therefore believes that affected residents should be provided with the medical monitoring and testing necessary to ensure their health and safety.

Like Boyle, Renee Frugoli also grew up down the street from NADC. At 33 years old, Renee’s sister was diagnosed with stage 3 breast cancer.. At the age of 3, one of Renee’s twins, F.F., was diagnosed with stage 5 kidney cancer. While F.F. ultimately survived, Renee never wants another child to suffer as F.F. did, and wants the Navy to provide residents with medical monitoring and testing.

For the first 25 years of her life, Hope Grosse lived directly across the street from NADC. Runoff from the base formed a creek, which flowed to her family’s property and affected their private well. Her father died from brain cancer at the age of 50. At the age of 25, Hope was diagnosed with stage 4 melanoma that had spread to her lymph nodes and blood.. While Hope is now in remission, she still gets annual chest x-rays, MRIs, CT scans, and blood work because it is possible that her cancer may reappear in her lungs or liver. Hope is now an activist who works to change laws and policies to protect children from pollution at the hands of their own government.

Two other residents, Yvonne Murphy Love and Minde Ruch, have loved ones who developed myelogenous leukemia at a young age. Yvonne grew up down the street from NADC. At 11 years old, Yvonne’s sister, Michelle, was diagnosed with myelogenous leukemia, a type of leukemia that usually develops only in adults over 60 years old. She passed away 10 months later. Both Yvonne and Minde feel that the Navy should be required to provide medical monitoring and testing to affected residents so that no other family loses a loved one at such a young age from this horrible disease.

Another resident, Joanne Stanton, grew up near both NADC and the Willow Grove Base. After college, Joanne returned to her childhood home, where she lived for the first six months of her pregnancy and regularly drank the tap water. Her son, Patrick, was diagnosed with a cancerous brain tumor at the age of 6. The doctors soon found embryotic tissue inside of Patrick’s tumor, indicating that the tumor may have began to develop while Joanne was pregnant. Three years later, the son of Joanne’s childhood friend, who grew up on the same street as Joanne, was diagnosed with the same type of brain tumor. A few years ago, the son of another childhood friend, who grew up across the street, was also diagnosed with that type of brain tumor. Like many other residents, the water crisis has lead Joanne to devote her life to the betterment of public health. She therefore believes that the Navy should be required to provide affected residents with medical monitoring and testing.

While the harm caused by exposure to these chemicals cannot be undone, the Navy can provide affected residents, including the Giovannis, with adequate monitoring to ensure that they know exactly how much of these chemicals are present in their bodies, as well as how their health has or likely will be affected, so that they may receive potentially life-saving treatment.