Court's conclusion that expenses associated with personal medical monitoring are not properly defined as response costs. As outlined in Daigle, "both houses of Congress considered and rejected any provision for recovery of...medical expenses." Id. The Senate rejected a bill which included private recovery for "all out-of-pocket medical expenses," and Congress rejected a bill that provided private recovery for "all damages for personal injury." Id. at 1536 (quoting S.1480 and H.R.7020, 96th Cong., 2d Sess., (1980), reprinted in Superfund: A Legislative History, Vol. III, Environmental Law Institute (1982), Vol. I, 289, Vol. III, 183).
Legislative action following enactment of CERCLA similarly supports an exclusion of medical monitoring expenses from a definition of response costs. Congress created the Agency for Toxic Substances and Disease Registry ("ATSDR") which, pursuant to a 1986 amendment, assesses and monitors the public health risk from a contaminant, and refers exposed people for treatment. See Daigle, 972 F.2d at 1536-37; 42 U.S.C. § 9604(i). Because CERCLA has provided an administrative avenue for monitoring the public health, the Court finds no reason absent any explicit statutory language to the contrary why monitoring public health should also be funded through private cost recovery actions.
Given this background to CERCLA response costs, plaintiffs' view that Congress intended the statute to be read broadly to include compensation for personal medical monitoring costs cannot be supported.
In those instances where claims for medical monitoring costs have been recognized, courts have confined the permissible medical response costs to those expended only for the purpose of tracking the spread of a particular contaminant. See Werlein v. U.S., 746 F. Supp. 887, 902-03 (D.Minn. 1990) (surveying the cases that found medical monitoring costs to be viable CERCLA response costs). For example, one court allowed medical monitoring costs expended "to assess the effect of the release or discharge on public health or to identify potential public health problems." Brewer v. Ravan, 680 F. Supp. 1176 (M.D.Tenn. 1988). As noted in Werlein, Brewer is the only court to have offered substantive reasons for allowing medical monitoring costs under CERCLA; other cases generally provide little discussion of the issue. 746 F. Supp. at 902-03; see Williams v. Allied Automotive Div., 704 F. Supp. 782, 784 (N.D. Ohio 1988); Jones v. Inmont Corp., 584 F. Supp. 1425 (S.D. Ohio 1984) (conclusorily stating that response and remedy definitions are broadly drawn); Lykins v. Westinghouse Elec., 27 Env't. Rep. Cas. (BNA) 1590, 1988 WL 114522 (E.D.Ky. 1988) (medical monitoring costs recoverable if part of a "clean-up"); Hopkins v. Elano Corp., 30 Env't. Rep. Cas. (BNA) 1782 (S.D. Ohio 1989) (dicta stating contaminants still dangerous when in a person's body). The more recent cases, similarly, have not meaningfully articulated a rationale for permitting medical monitoring costs. See In Re Hanford Nuclear Reservation Litig., 780 F. Supp. 1551 (E.D.Wa. 1991) (dicta speculating that medical monitoring might be viable, but dismissing claim for lack of jurisdiction); Cook v. Rockwell Int'l Corp., 755 F. Supp. 1468, 1471-76 (D.Colo. 1991) (medical monitoring to assess the environmental effects of a release are cognizable under CERCLA).
In sum, Daigle and its progeny have thoroughly explored and compellingly explained why even those limited medical monitoring costs permitted in some court decisions are not recoverable as response costs under CERCLA. Whether expended for personal or public health, medical monitoring costs cannot be properly recoverable in a private CERCLA action. As an aside, it is worth noting that dismissal of claims pleading such costs does not prejudice plaintiffs, given the availability of analagous state remedies. See Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1006-07, 863 P.2d 795 (Dec. 1993) (allowing plaintiffs compensation for medical monitoring costs arising out of exposure to defendant's toxic waste).
3. Environmental Monitoring Costs
Plaintiff's claim for environmental monitoring costs is similarly misplaced. While governing case law provides for the recovery of certain types of environmental response costs, see Cadillac Fairview/California v. Dow Chemical Co., 840 F.2d 691, 693 (9th Cir. 1988), the pleading in the present matter largely masks a claim for the type of medical monitoring costs already found above to be not cognizable under CERCLA. Specifically, the "environmental monitoring" costs pleaded in the present matter entail the future medical testing of plaintiffs, thus approximating closely the claim for medical monitoring costs. While plaintiffs here seek recovery for medical testing associated with tracking the contaminant, as opposed to health purposes, that distinction is not analytically meaningful since, as stated above, medical monitoring costs are not permitted whether expended for personal or public health.
As to any aspect of plaintiffs' environmental monitoring claims including costs for expenses other than medical testing, those portions of the claims would also be not be cognizable under applicable law. Those cases that have recognized environmental monitoring claims under CERCLA have involved a planned expenditure to monitor a continuing contamination. See Cadillac Fairview/California, 840 F.2d at 693 ($ 70,000 in actually incurred costs, expended in part for chemical testing of hazardous substances dumped on the site). In the present case, the contamination resulted from a chemical cloud which dissipated within a few hours. Further, it has not been adequately pleaded that any such environmental monitoring costs were actually expended which would target any future monitoring of a continuing contamination.
C. Plaintiffs' Pendent State Law Claims
In its February 11, 1994 Order, the Court wrote,
Should plaintiffs fail to plead a viable CERCLA claim upon amendment, it is the intention of the Court to decline to exercise supplemental jurisdiction over the remaining state law claims, pursuant to 28 U.S.C. § 1367(c)(3). Furthermore, should plaintiffs state a viable CERCLA claim, the Court will consider dismissal of the supplemental state law claims pursuant to other subsections of 28 U.S.C. § 1367(c).