In 1990, five class action suits were filed against current and former operating contractors of Hanford Nuclear Reservation. Among the allegations were claims of personal injury, property damage, business losses, and the tort of medical monitoring. The U.S. District Court for the Eastern District of Washington consolidated the claims into one, In re Hanford.[1] The district court dismissed the medical monitoring claims for lack of subject matter jurisdiction pursuant to section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[2]

In 1993, Pamela Durfey, Paulene Echo Hawk, and Dorothy George filed this class action suit alleging the common law tort of medical monitoring. The district court consolidated the plaintiffs' action with the In re Hanford litigation and removed the action to the federal district court. In accord with its earlier decision, the district court dismissed the plaintiffs' claim for lack of subject matter jurisdiction under section 113(h).

CERCLA bars judicial review of "challenges" to federal "removal" or "remedial" actions. Therefore, the plaintiffs' action would be barred if it were found to be a "response" cost under CERCLA section 107(a)(4)(B).[3] The district court ruled the plaintiffs' claims were "challenges" to the activities of the Agency for Toxic Substances and Disease Registry (ATSDR) at Hanford because ATSDR's medical surveillance will provide the medical monitoring the plaintiffs seek. Therefore, the court ruled their complaint could not be heard until ATSDR completed its work. However, since the district court's original ruling in 1991, the Ninth Circuit has ruled medical monitoring costs are not "response" costs under CERCLA.

In Price v. United States Navy,[4] relying on the Tenth Circuit's analysis in Daigle v. Shell Oil Co.[5] and on CERCLA's legislative history, the Ninth Circuit determined "response" costs refer to activities designed to prevent contact between the hazardous substances and the public. This is not the purpose of medical monitoring. In addition, ATSDR activities are not included in "response" costs. Because medical monitoring is not a "response" cost under CERCLA, the district court has subject matter jurisdiction. The Ninth Circuit reversed and remanded.