Full opinion text
MEMORANDUM AND ORDER THEIS, Senior District Judge. This matter is before the court on the motion of defendant for partial summary judgment. (Doc. 86). In this private action between non-diverse parties, plaintiffs allege claims under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601, et seq., as well as several pendent claims based on state law. Defendant presents three grounds in support of partial summary judgment, including the contention that all pendent state claims are barred by the relevant Kansas statute of limitation, and that application of a contrary federal commencement statute to these claims is an unconstitutional extension of the commerce clause power as well as a violation of the tenth amendment to the United States Constitution. Pursuant to 28 U.S.C. § 2403(a), the court previously certified to the Attorney General that defendant has challenged the constitutionality of the federal statute in question. The United States has intervened for the limited purpose of defending this statute against the constitutional attack. I. Background Plaintiffs in this action are individual homeowners and their adult children, who contend that defendant has contaminated their groundwater supply with trichloroe-thylene (“TCE”), a solvent that the Environmental Protection Agency has determined is a probable human carcinogen. Since 1951 defendant has owned and operated an aircraft manufacturing plant located a mile or less from the community where plaintiffs reside. In May 1985 defendant was notified by the Kansas Department of Health and Environment (“KDHE”) that TCE had been detected in a sample of water taken from one of defendant’s wells. Defendant had been using TCE at the plant since the 1950s. In late July 1985, KDHE informed at least some of the residents of the community that water samples taken from their wells had revealed TCE contamination. Some residents began transporting bottled water for cleaning and cooking purposes, and in the fall of 1985 the residents first petitioned the City of Wichita to connect their community to the city water mains and lines. Throughout 1985 and 1986 tests were conducted by defendant and KDHE to determine both the extent of the TCE migration as well as the point sources of the contamination. Although defendant now admits that TCE has escaped from its property to plaintiffs’ groundwater, defendant contends that until the late fall of 1986 it was unsure whether it had caused the TCE contamination of plaintiffs’ groundwater. On October 28, 1986, KDHE issued a press release and published a notice to all residents living near defendant’s plant, informing these residents that their groundwater had been contaminated. The notice advised that “[rjesidents in the area may wish to transport water from a public water supply for drinking and cooking purposes” or “to boil the water for ten minutes before drinking or cooking.” Dep.Eht. 95. In December 1986, defendant made individual offers to 42 families and businesses to pay for the expense of connecting them to city water. For disputed reasons that are not material to this motion, plaintiffs declined this offer and themselves incurred the expense of connecting their property to the city water. Plaintiffs filed this action on June 23, 1987, alleging subject matter jurisdiction under CERCLA. 42 U.S.C. § 9613; 28 U.S.C. § 1331. The CERCLA action is based upon the “response costs” that plaintiffs have incurred by procuring an alternative source of water for their property. The state law causes of action alleged are negligence, trespass, intentional public and private nuisance, strict liability for ultrahazardous substances, and “wanton conduct.” Plaintiffs claim compensatory damages in the form of diminished property value, out of pocket expenses, and “annoyance, discomfort, inconvenience and peace of mind (emotional distress).” Doc. 94, at 8. In addition, plaintiffs seek to recover punitive damages for conduct alleged to have been callous and indifferent to the health and safety of others. Defendant moves for partial summary judgment on the grounds that: 1) all state claims are barred by the governing Kansas statute of limitation; 2) the court lacks subject matter jurisdiction over all claims of the eight plaintiffs who are adult children of the homeowners; 3) no plaintiff can recover damages for emotional distress. II. Applicable Statute of Limitation Defendant contends that plaintiffs’ state claims are barred under Kansas law, and that the Constitution prevents the court from reviving these claims under a con-cededly applicable federal limitations statute. In the interest of avoiding a potentially unnecessary constitutional issue, see, e.g., Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2996, 86 L.Ed.2d 664 (1985), the court first addresses plaintiffs’ alternative argument disputing the untimeliness of their claims under Kansas law. A. Kansas Time Limitations The parties recognize that plaintiffs’ various state tort claims are governed by the Kansas two-year statute of limitation. Kan.Stat.Ann. § 60-513 (1983). The difficulty with this case, however, is in determining the time at which plaintiffs’ claims accrued. The court is well-acquainted with the byzantine edifice of Kansas limitations law for actions alleging injury to real property. In Miller v. Cudahy Co., 567 F.Supp. 892 (D.Kan.1983), aff'd in part, 858 F.2d 1449 (10th Cir.1988), cert. denied, 492 U.S. 926, 109 S.Ct. 3265, 106 L.Ed.2d 610 (1989), this court had occasion to review the Kansas cases that have struggled with the elusive task of determining the accrual of tort claims based on the pollution or contamination of land. Id. at 899-905. In making such determinations, Kansas draws a distinction between actions for permanent as opposed to temporary damages. In an action for temporary damages, the tort is considered to be continuous, and a new cause of action accrues with each new injury. Williams v. Amoco Prod. Co., 241 Kan. 102, 108, 734 P.2d 1113 (1987) (quoting Gowing v. McCandless, 219 Kan. 140, 144, 547 P.2d 338 (1976)). The plaintiff who seeks to recover temporary damages, however, may only recover for those damages that have accrued within two years of the date on which suit was filed. See, e.g., Augustine v. Hinnen, 201 Kan. 710, 711, 443 P.2d 354 (1968); Miller, 567 F.Supp. at 909. With respect to damages for decreased property value in an action for temporary damages, Kansas measures recovery by the depreciation of rental or other usable value during the period within the statute of limitation. Alexander v. City of Arkansas City, 193 Kan. 575, 580, 396 P.2d 311 (1964) (quoting 66 C.J.S. § 175). By contrast, an action for permanent damages is generally deemed to accrue at the time that the fact of a substantial, actionable injury becomes reasonably ascertainable. Williams, 241 Kan. at 108, 734 P.2d 1113; Olson v. State Highway Comm’n, 235 Kan. 20, 26-27, 679 P.2d 167 (1984); Roe v. Diefendorf 236 Kan. 218, 222, 689 P.2d 855 (1984) (injury is “substantial” within meaning of § 60 — 513(b) if sufficient to support an action). The nature of permanent damages was explained in McAlister v. Atlantic Richfield Co., 233 Kan. 252, 662 P.2d 1203 (1983): Permanent damages are given on the theory that the cause of injury is fixed and that the property will always remain subject to that injury. Permanent damages are damages for the entire injury done — past, present, and prospective— and generally speaking those which are practically irremediable. If an injury is permanent in character, all the damages caused thereby, whether past, present, or prospective, must be recovered in single action. Id. at 262, 662 P.2d at 1211 (citation omitted). “The measure of damages for permanent injury is the difference in the fair market value of the land before and after injury.” Williams, 241 Kan. at 110, 734 P.2d 1113. In determining whether an action for injury to land is to be considered as one for permanent or temporary damages, the Kansas cases have focused on three facets of the problem: 1) the pollution itself, 2) the damage caused by the pollution, and 3) the source of the pollution. Miller, 567 F.Supp. at 899-900; see also Olson, 235 Kan. at 24, 679 P.2d at 172. To the extent that the pollution itself or the damage caused by the pollution can be characterized as occasional, remediable, or abatable, the damage is temporary. McAlister, 233 Kan. at 262, 662 P.2d at 1211. As to the nature of the source of the pollution, relevant factors include the permanency of the polluting structure and whether the normal operations at the structure will necessarily create a continuous source of pollution. A pollution that is abatable at its source will tend to support an action for temporary rather than permanent damages. See Gowing v. McCandless, 219 Kan. 140, 145, 547 P.2d 338 (1976). Whether an action is deemed as one for temporary or permanent damages depends upon facts of each case. Olson, 235 Kan. at 24, 679 P.2d at 172. In Miller, this court also observed that to a certain extent, plaintiffs enjoy the right to choose whether to pursue an action for temporary or permanent damages. 567 F.Supp. at 904 (citing Augustine v. Hinnen, 201 Kan. 710, 443 P.2d 354 (1968)). See also McDaniel v. City of Cherryvale, 91 Kan. 40, 43, 136 P. 899 (1913). This right is not unlimited, however, and must be a choice that is supportable under the facts of the case. See Williams, 241 Kan. at 108, 734 P.2d at 1119 (trial court ordered temporary action amended to permanent action); McAlister, 233 Kan. at 264, 662 P.2d at 1212; McMullen v. Jennings, 141 Kan. 420, 41 P.2d 753, syl. 11 5 (1935). Defendant contends that plaintiffs’ action is for the permanent diminution in property value. Plaintiff does not address the question in terms of the permanent/temporary dichotomy, and the court will therefore assume for purposes of this motion that plaintiff has alleged, and could only allege, an action for the recovery of permanent damages. Cf. Adams v. City of Arkansas City, 188 Kan. 391, 362 P.2d 829 (1961) (construing claim for permanent damages to be one for temporary). An action for permanent damages to land generally accrues when the fact of a substantial injury becomes reasonably ascertainable. Williams, 241 Kan. at 108, 734 P.2d at 1119. This rule is derived from K.S.A. 60-513(b), which provides: Except as provided in subsection (c) of this section, the cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action. (emphasis added). Plaintiffs argue that their claims did not accrue until the knowledge of TCE in their groundwater caused the decline in their property value and began to interfere with their enjoyment of the land. Be that as it may, plaintiffs’ argument fails to confront the obstacle posed by the last clause of K.S.A. § 60&emdash;513(b), which creates a 10-year limitation for the time at which an action may be deemed to accrue. Despite the inability to discover an injury, Kansas does not allow a plaintiff to extend the two-year period of limitation more than 10 years “beyond the time of the act giving rise to the cause of action.” In other words, a tort action does not accrue at all if it is not filed within 10 years of the time of the “act” referred to in the statute. In Tomlinson v. Celotex Corp., 244 Kan. 474, 770 P.2d 825 (1989), the court held that the word “act,” wherever it appears in K.S.A. 60-513(b), refers to “the defendant’s wrongful act, rather than the occurrence of a substantial injury.” 244 Kan. at 481, 770 P.2d at 830. Thus, if defendant’s allegedly wrongful act, resulting in a substantial injury to plaintiffs, took place more than 10 years before plaintiffs filed suit, any cause of action based on such wrongful act is barred. Under the statute, it is irrelevant whether plaintiffs did or even could have discovered the existence of a substantial injury within the 10-year period. Defendant contends that the wrongful act in this case is the “act” of “allowing TCE to escape from its facility on or before 1970.” Doc. 105, at 17. This emphasis on the time at which TCE escaped from its facility, however, finds no support in the two leading Kansas cases interpreting the 10-year provision of § 60-513(b). In Tomlinson, the court held that the 10-year limitation as applied to an action based on asbestos-related injuries “began, at the latest, upon the last exposure of the plaintiff to asbestos produced, sold, and distributed by the defendants in 1971.” 244 Kan. at 481, 770 P.2d at 830. Although this language is somewhat ambiguous as to whether the date 1971 refers to plaintiffs exposure or to defendant’s distribution, no ambiguity exists regarding the relevant date on which the 10-year limitation began to run: “at the latest, upon the last exposure of the plaintiff to asbestos_” If defendant’s argument had found favor in Tom-linson, the court would have referred to the dates on which the defendant in that case had introduced its dangerous product into the stream of commerce. See also Lester v. Eli Lilly & Co., 698 F.Supp. 843, 844 (D.Kan.1988) (10-year limitation of K.S.A. § 60-513(b) began from time of mother’s ingestion of DES), affd mem., 893 F.2d 1340 (10th Cir.1990). Any doubt on this issue is dispelled by Ruthrauff v. Kensinger, 214 Kan. 185, 519 P.2d 661 (1974), a case in which “[t]he ten-year limitation contained in K.S.A. § 60-513(b) received its most important in-terpretation_” Tomlinson, 244 Kan. at 476, 770 P.2d at 827. In Ruthrauff the court held that the 10-year limitation of § 60-513(b) “does not affect or limit the primary 2 year period for bringing an action where the fact of substantial injury is immediately apparent as in the case of an explosion and resulting fire.” 214 Kan. at 191, 519 P.2d at 666 (emphasis added). The court reasoned that the 10-year provision limits only those types of injuries referred to in the immediately preceding clauses, which state: [I]f the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party,_ K.S.A. § 60-513(b) (emphasis added). The court then found that plaintiff’s injuries— which resulted from an explosion — were not of the variety referred to in these clauses because the fact of a substantial injury from the explosion was “immediately apparent.” In other words, the court interpreted “the initial act” to refer not to the negligent construction of the house, but rather to the explosion, which coincided with the immediately apparent injury. As Tomlinson makes clear, the word “act” as used in the statute always refers to the same event: defendant’s wrongful act. 244 Kan. at 481, 770 P.2d at 829-30. In Tomlinson, the wrongful act occurred, at the latest, when plaintiff was last exposed to asbestos that had been manufactured by defendant, and not when defendant introduced its dangerous product into the stream of commerce. Similarly, in Ru-thrauff, the wrongful “initial act” was the explosion, and not the act of constructing the house negligently some years earlier. Acceptance of defendant’s argument would require the court not only to ignore the language chosen in Tomlinson, but also to find that Tomlinson implicitly overruled the central premise of Ruthrauff: the “initial act” and the fact of injury were simultaneous. To make such a finding, however, would require the court to ignore the express recognition in Tomlinson that “the rule announced in Ruthrauff remain[ed] applicable” to the case before it. 244 Kan. at 477, 770 P.2d at 828. From these cases the court concludes that the wrongful “act,” as the word is used in K.S.A. § 60-513(b), does not refer to the defendant’s initial actions in a sequence of events leading to the plaintiffs injury, but rather to the act of plaintiff’s exposure to the injury inducing element. Defendant also suggests that the relevant commencement date on which the wrongful act took place is 1970, at the latest. For purposes of this motion only, defendant rather magnanimously concedes that some of its TCE may have reached plaintiffs’ property as early as 1970. Defendant arrives at this date in reliance upon plaintiffs’ expert, who has testified that the TCE now present in the area of plaintiffs’ community “left Cessna’s property sometime prior to 1970.” Doc. 87, at 30. Defendant contends, in essence, that a wrongful act occurred as soon as any amount of TCE made its physical debut on the plaintiffs’ property, even if this amount was negligible and insufficient to create a health risk or other adverse effect. The Kansas Supreme Court rejected a similar argument in Olson v. State Highway Comm’n, 235 Kan. 20, 679 P.2d 167 (1984). The plaintiff in Olson brought an action for permanent damages to her real property, allegedly caused by defendants' blasting activities. The injuries included several cracks in the foundation walls of plaintiff’s home and the accumulation of silt in her pond. There was evidence that a single crack had appeared in the wall, and that silt had first begun to enter the pond, on dates two years prior to the filing of the complaint. The court held that it was error to calculate the date of accrual as of the date on which any injury first occurred: Our statutes of limitation were not designed to force injured parties into court at the first sign of injury, regardless of how slight it might be, just because that injury and damages resulting therefrom may be permanent in nature. We have repeatedly held that where the evidence is in dispute as to when the fact of injury first became reasonably ascertainable to plaintiffs, it is an issue for determination by the trier of fact. The same is true in determining when substantial injury first occurred. Olson, 235 Kan. at 27, 679 P.2d at 173-74 (citation omitted). Thus, Olson recognizes that an action for permanent damages to real property accrues, at the earliest, when “the act giving rise to the cause of action first causes substantial injury,.... ” Id. at 26, 679 P.2d at 172 (emphasis in original). Because the wrongful act in Olson had occurred within 10 years of the filing of suit, the 10-year provision of K.S.A. § 60-513(b) was not in issue. The logical application of its holding, however, fixes the date on which the wrongful act in the present case occurred. Olson stands for the proposition that a cause of action does not accrue until a substantial injury exists or is discoverable. In other words, no “act giving rise to the cause of action” exists until there is some act that “first causes substantial injury_” K.S.A. 60-513(b) (first clause). But the argument advanced by defendant imputes a different meaning to the word “act” as it appears in the final clause of the statute. Although not phrased as such, defendant’s contention is that there can be an “act giving rise to the cause of action” within the meaning of the 10-year limitation clause, even before the existence of “the act giving rise to the cause of action” as the phrase appears in the first clause. Tomlinson has decisively laid to rest such inconsistent interpretations of the statute. The court therefore concludes that in an action for permanent damages to real property caused by harmful substances, the 10-year limitation of K.S.A. § 60-513(b) begins to run only when the plaintiff’s property has been exposed to quantities of that substance sufficient to produce a substantial injury, regardless of whether that injury first develops or is discovered after the exposure to the substance. Moreover, because an injury is “substantial” only to the extent that it is sufficient to support the particular cause of action, Roe v. Diefendorf 236 Kan. 218, 222, 689 P.2d 855 (1984), the amount of TCE in plaintiffs’ groundwater must have been in amounts that would have supported an action for permanent and not simply temporary damages. See Williams, 241 Kan. at 108, 734 P.2d at 1119 (original action for temporary damages became permanent only during pendency of suit); Gowing, 219 Kan. at 144, 547 P.2d at 342 (action for permanent damages less appropriate where there is uncertainty as to future use of land, preventing accurate estimate of damages); Dougan v. Rossville Drainage Dist., 2 Kan.App.2d 125, 129, 575 P.2d 1316 (1978); see also Cleveland v. Wong, 237 Kan. 410, 414-15, 701 P.2d 1301 (1985) (cause of action for negligent surgery did not accrue with symptoms of initial surgery, but with diagnosis of injury as permanent). In this case, defendant’s wrongful “act” within the meaning of the statute came to be completed as increasingly greater amounts of TCE continued to migrate into plaintiffs’ groundwater. The wrongful act was choate, however, and the 10-year limitation began to run, only at the time that the amount of TCE on plaintiffs’ land was sufficient to inflict a subsequent injury that would be sufficient to support plaintiffs’ action for permanent damages. Applying this rule, the court finds that the facts submitted are inadequate to allow a judicial determination of the date on which the wrongful act first occurred, and that an issue of fact is presented for the jury. If the jury were to find that the amount of TCE in plaintiffs’ groundwater before June 23, 1977 was insubstantial, in the sense of insufficient to support the causes of action alleged, then plaintiffs’ complaint would have been filed within the 10-year period prescribed by K.S.A. § 60-513(b). In the event of such a finding, the only limitation on plaintiffs’ action would be the two-year provision of the statute, which permits the filing of actions within two years of the date of the discovery of the injury. Because none of the plaintiffs had knowledge of the contamination of their water supply until July 14, 1985 at the earliest, plaintiffs’ complaint, filed on June 23, 1987, would be timely under the statute. Finally, the court notes that plaintiffs have alleged a cause of action for “wanton conduct,” which apparently involves some wrongful acts separate from those supporting the remaining state claims. Unlike the claims of negligence, trespass, nuisance, and strict liability for ultrahazardous substances, the claim for punitive damages is based in part upon defendant’s allegedly willful failure to inform plaintiffs of the presence of TCE in their groundwater as of the time that defendant first learned in May 1985 of its presence. As to these latter acts, it might appear that the 10-year limitation is not implicated, and that the claim is timely as a matter of law. The Kansas Supreme Court has made clear, however, that [t]he conduct giving rise to the punitive damages claim must be the same conduct for which actual or compensatory damages were allowed. Where two separate causes of action are tried, arising from different factual situations and different theories, recovery of actual damages in one cause of action is insufficient to permit recovery of punitive damages in the second cause of action. Traylor v. Wachter, 227 Kan. 221, 224-25, 607 P.2d 1094, 1098 (1980). Thus, plaintiffs may not rely upon defendant’s recent actions as the basis for the punitive damages claim. Nonetheless, plaintiffs have alleged certain willfully wrongful conduct in the same conduct that supports the remaining tort claims, and in any event, defendant does not move for summary judgment on the “wanton conduct” claim. The court expresses no view at this time as to the admissibility of these subsequent actions under Fed.R.Evid. 404(b) as evidence of the nature of defendant’s conduct in allowing the release of TCE from its facility. Although issues of fact exist regarding the timeliness of plaintiffs’ state claims under Kansas law, the constitutional validity of the federal statute involved in this case would obviate the need for the jury to make the foray into this factual thicket. For this reason, the court address the constitutional issues presented. B. Federal Commencement Date Defendant concedes that plaintiffs’ state claims fall within the terms of a preemptive federal commencement date provided by the Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99-499, § 309, 100 Stat. 1613, 1695 (1986): In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required corn-mencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute. 42 U.S.C. § 9658(a)(1) [hereinafter "§ 9658”]. The statute further provides: [T]he term “federally required commencement date” means the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (a)(1) were caused or contributed to by the hazardous substance or pollutant or contaminant concerned. Id. § 9658(b)(4). The statute effectively creates a federally mandated discovery rule for the accrual of state law claims involving releases of hazardous substances that cause or contribute to personal injury or property damage. Because none of the plaintiffs had knowledge of the contamination of their water supply until July 14, 1985 at the earliest, the federal statute directs that this date preempt any earlier commencement date dictated by state law. Thus, despite the arguable untimeliness of plaintiffs’ state claims under Kansas law, application of the federal commencement date to the Kansas two-year limitations pe-riod would render these state claims, filed on June 23, 1987, timely. Defendant challenges the constitutionality of § 9658 under the tenth amendment and the commerce clause. The court addresses these arguments in turn. 1. Tenth Amendment Defendant first alleges that § 9658 is an unconstitutional infringement on state sovereignty, in violation of the tenth amendment, which provides: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. The court initially notes that the United States raises, but does not brief, the issue of defendant’s standing to raise a tenth amendment challenge. Doc. 112, at 17 n. 16. In Mountain States Legal Foundation v. Costle, 630 F.2d 754, 765-72 (10th Cir.1980), cert. denied, 450 U.S. 1050, 101 S.Ct. 1770, 68 L.Ed.2d 246 (1981), this circuit found standing lacking for several private parties who raised various constitutional and statutory challenges, including a tenth amendment challenge to portions of the Clean Air Act. But see Atlanta Gas Light Co. v. U.S. Dep’t of Energy, 666 F.2d 1359, 1368 n. 16 (11th Cir.), cert. denied, 459 U.S. 836, 103 S.Ct. 81, 74 L.Ed.2d 78 (1982); Natural Resources Defense Council v. Costle, 564 F.2d 573, 579 (D.C.Cir.1977). In light of the current dormant state of tenth amendment jurisprudence, however, the court finds it unnecessary to address the question of defendant’s standing and assumes it for purposes of this motion. See Nance v. Environmental Protection Agency, 645 F.2d 701, 716 (9th Cir.) (assuming questionable standing to assert tenth amendment claim), cert. denied, 454 U.S. 1081, 102 S.Ct. 635, 70 L.Ed.2d 615 (1981); United States v. Tonry, 605 F.2d 144, 148 n. 12 (5th Cir.1979) (same). In Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), the Court held that the tenth amendment does not serve as an affirmative constitutional restriction on the authority of Congress to legislate under power otherwise conferred by the commerce clause. The Court expressly overruled the short-lived rule of National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), which had interpreted the tenth amendment to prohibit federal incursions into areas that would impair the states’ ability to perform their “traditional governmental functions.” Id. at 852, 96 S.Ct. at 2474. In the stead of the rule of Usery, which Garcia found to be “unsound in principle and unworkable in practice,” 469 U.S. at 546, 105 S.Ct. at 1015, the Court held that the principal and basic protection of state sovereignty is found in the various forms of state participation in the federal system. Id. at 550-56, 105 S.Ct. at 1017-20. That is, state autonomy is ensured, and its contours are defined, through a constitutional scheme that envisions a state role in the national political process, rather than through a substantive judicial review of the challenged federal action. Id. at 554, 105 S.Ct. at 1019. This principle was reemphasized and succinctly stated in South Carolina v. Baker, 485 U.S. 505, 108 S.Ct. 1355, 99 L.Ed.2d 592 (1988) (plurality opinion): Garcia holds that the limits are structural, not substantive — i.e., that States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity. 108 S.Ct. at 1360. See also International Ass’n of Fire Fighters v. West Adams County Fire Protection Dist., 877 F.2d 814, 820-21 (10th Cir.1989). Thus, in the absence of “some extraordinary defects in the national political process” that might deprive the states of their right to participation, Baker, 108 S.Ct. at 1360-61, or of some express constitutional guaranty of state integrity in a certain area, see Garcia, 469 U.S. at 550, 105 S.Ct. at 1017, “nothing in Garcia or the Tenth Amendment authorizes courts to second-guess the substantive basis for congressional legislation.” Baker, 108 S.Ct. at 1361. Irrespective of defendant’s standing to raise this issue, Garcia makes clear that the tenth amendment provides this court with no standard by which to determine whether § 9658 deprives states of a “core” or “essential” attribute of state sovereignty. Because defendant has offered nothing to suggest a defect in the political process underlying the enactment of § 9658, the court must reject this challenge. • 2. Commerce Clause Defendant also attacks § 9658 under the commerce clause of the Constitution. U.S. Const, art. I, § 8, cl. 3. The task of a court that is asked to determine whether a particular exercise of congressional power is valid under the Commerce Clause is relatively narrow. The court must defer to a congressional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding. This established, the only remaining question for the judicial inquiry is whether “the means chosen ... [are] reasonably adapted to the end permitted by the Constitution.” Hodel v. Virginia Surface Mining & Relamation Ass’n, 452 U.S. 264, 276, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (1981) (citations omitted). In determining whether the regulated activity affects interstate commerce, “[t]he pertinent inquiry ... is not how much commerce is involved but whether Congress could rationally conclude that the regulated activity affects interstate commerce.” Hodel v. Indiana, 452 U.S. 314, 324, 101 S.Ct. 2376, 2383, 69 L.Ed.2d 40 (1981). In Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), the Court held that Congress legitimately abrogated the eleventh amendment immunity of the states when it exercised its commerce clause power to authorize private CERCLA actions against states. Id. 109 S.Ct. at 2281-85 & 2295 (White, J., concurring in plurality’s conclusion). The CERCLA action in Union Gas involved an attempt by a private party to recover cleanup costs from the Commonwealth of Pennsylvania as “owner and operator” of a hazardous waste site. Although Union Gas was primarily concerned with the broader issue of Congress’ general commerce clause power to enact legislation that subjects states to liability, it also addressed the exercise of this power within the specific context of the CERCLA statute. It was noted that “[t]he general problem of environmental harm is often not susceptible of local solution,” id. at 2284, and that Congress had previously, and unsuccessfully, attempted “to solve the problem posed by hazardous substances through other means.” Id. at 2285. Writing for the plurality, Justice Brennan concluded: “This case thus shows why the space carved out for federal legislation under the commerce power must include the power to hold States financially accountable not only to the Federal Government, but to private citizens as well.” Id. Necessarily implicit in the decision in Union Gas is that the commerce clause authorizes Congress to extend federal jurisdiction to claims involving the injurious effects of hazardous substances. See also Wickland Oil Terminals v. Asarco, Inc., 654 F.Supp. 955, 957 (N.D.Cal.1987) (commerce clause authorizes enactment of CERCLA). Notwithstanding Union Gas, defendant contends that § 9658 satisfies neither prong of the commerce clause test. Doc. 113, at 8. As to the first requirement, defendant suggests somewhat obliquely that § 9658 could survive constitutional scrutiny only if Congress had made specific findings regarding the interstate commerce effect of state limitations periods that do not maintain a discovery rule. Doc. 113, at 7-8. To the extent that defendant seeks to require that § 9658 directly relate to interstate commerce, this argument must fail. A complex regulatory program ... can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal. It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test. Hodel v. Indiana, 452 U.S. at 329 n. 17, 101 S.Ct. at 2386 n. 17. See also United States v. Lane, 883 F.2d 1484, 1492 (10th Cir.l989)(“Congress is not required to make ‘particularized findings in order to legislate’ ” under the commerce clause), cert. denied, — U.S. —, 110 S.Ct. 872, — L.Ed.2d — (1990). Similarly, it is irrelevant that the specific activity forming the basis of a particular action may not have any effect on interstate commerce. The Supreme Court has made clear that the commerce power extends not only to “the use of channels of interstate or foreign commerce” and to “protection of the instrumentalities of interstate commerce ... or persons or things in commerce,” but also to “activities affecting commerce.” ... “[[E]]ven activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations.” Virginia Surface Mining, 452 U.S. at 276-77, 101 S.Ct. at 2360 (citations omitted). See also Garcia, 469 U.S. at 537, 105 S.Ct. at 1010; Utah v. Marsh, 740 F.2d 799, 803 (10th Cir.1984). Thus, the first element of a commerce clause inquiry is satisfied if Congress could rationally conclude that the regulated activity, taken as a whole, impacts upon interstate commerce, and if the challenged provision is part of a comprehensive scheme regulating this activity. The legislative history of CERCLA is replete with congressional findings regarding, the pervasive effects of hazardous substances released into the environment. See S.Rep. No. 848, 96th Cong., 2d Sess. 5-6 (1980)(citing testimony estimating that about 50% of hazardous substance spills reach navigable waters); H.Rep. No. 1016, 96th Cong., 2d Sess. 17-20, reprinted in 1980 U.S.Code Cong. & Admin.News 6119, 6119-23. And as reaffirmed in Union Gas, the commerce clause empowers Congress to regulate activity involving the release of hazardous substances precisely because the harm caused by these substances often does not lend itself to local solution. 109 S.Ct. at 2284. See also Virginia Surface Mining, 452 U.S. at 282, 101 S.Ct. at 2363 (“the Commerce Clause [is] broad enough to permit congressional regulation of activities causing air or water pollution, or other environmental hazards that may have effects in more than one State”). Congress retains ample authority under the commerce clause to enact legislation regulating activities that result in the release of hazardous substances such as TCE. Nor does the court have any doubt that § 9658 is an integral part of the regulatory scheme of CERCLA. See Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 890 (9th Cir.1986)(discussing several features of CERCLA). This section was enacted in response to the report of a study group that had been commissioned by Congress under CERCLA “to determine the adequacy of existing common law and statutory remedies” for harm “caused by the release of hazardous substances into the environment....” Pub.L. No. 96-510, § 301, 94 Stat. 2767, 2807 (1980)(codified at 42 U.S.C. § 9651(e)). The study group found that the limitation statutes of some states operated to bar claims even before plaintiffs could discover their injury, and that such statutes were ill-suited to the frequently latent injuries caused by hazardous substances. See 4 Grad, Treatise on Environmental Law SLR-51, -52 (1988); Knox v. AC & S, Inc., 690 F.Supp. 752, 757 (S.D.Ind.1988); see also S.Rep. No. 848, 96th Cong., 2d Sess. 13 (1980)(“the legal mechanisms in the States studied are generally inadequate for redressing toxic substances-related harms, and traditional tort law presents substantial barriers to recovery”). The drafters of § 9658 acknowledged these findings and expressed concern that certain state statutes of limitation operated to “deprive plaintiffs of their day in court.” H.Conf.Rep. No. 962, 99th Cong., 2d Sess. 261, reprinted in 1986 U.S. Code Cong. & Admin.News 3276, 3354; H.Rep. No. 253(1), 99th Cong., 2d Sess. 105, reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2887. Clearly, § 9658 is part of a comprehensive regulatory scheme that envisions the continued viability of existing state remedies for environmental injuries, while ensuring that the injured parties do not forfeit these claims to restrictive state limitation statutes. The only remaining question is whether § 9658 is a rational means of regulating the release of hazardous substances. Defendant does not appear to question the reasonableness of addressing these problems through a measure that provides private parties with a federal cause of action under CERCLA, nor could such an argument survive Union Gas. See 109 S.Ct. at 2285; see also United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 734 (8th Cir.1986), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987); Parsell v. Shell Oil Co., 421 F.Supp. 1275, 1281 n. 15 (D.Conn.1976)(“Congress can regulate pollution affecting interstate commerce as expansively as the modern reach of the commerce clause permits, and this power can be used to authorize private enforcement if Congress so chooses.”), aff'd mem., 573 F.2d 1289 (2d Cir.1977); S.Rep. No. 848, 96th Cong., 2d Sess. 13 (1980) (discussing importance of strict liability within the goals of CERCLA); H.Rep. No. 253, 99th Cong.2d Sess. 54-61, reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2836-43. Moreover, defendant concedes that “Congress may even have the right, if interstate commerce is affected, to create federal causes of action akin to the nuisance and trespass claims asserted by plaintiffs,.... ” Doc. 105, at 9. Yet defendant apparently assails the reasonableness of a framework that retains existing state remedies, but imposes upon these state causes of action a uniform federal commencement date. The court is at a loss to find anything unreasonable in such a scheme. It is not for the courts to sit as a superlegislature that dictates to Congress the means by which it must accomplish its legitimate purposes. Hodel v. Indiana, 452 U.S. at 333, 101 S.Ct. at 2388. By leaving intact state remedies, Congress has allowed the victims of environmental harm to maintain common law causes of action as an additional tool against the effects of hazardous substances. Presumably under defendant’s conception, Congress may create redundant federal causes of action with their own federal accrual date, but it may not apply this federal commencement date to those existing state remedies that it has chosen to retain. The court perceives no distinguishing principle that would render the former solution rational and the latter irrational. Although Congress is vested with plenary authority over matters affecting interstate commerce, there is no requirement that a given exercise of this authority completely preempt every aspect of state law. Virginia Surface Mining, 452 U.S. at 290-91, 101 S.Ct. at 2367-68. That Congress has chosen to allow the states a continued role in redressing injuries caused by hazardous substances does not deprive it of the power to preempt selectively those aspects of state law found wanting. The court concludes that § 9658 represents a valid exercise of the commerce power of Congress. Finding no constitutional infirmity in the statute, federal law dictates that the court find plaintiffs’ state claims to be timely under the two-year limitation period of K.S.A. § 60-513. Accordingly, it shall be unnecessary for plaintiffs to establish at trial the timeliness of their claims under Kansas law. III. Subject Matter Jurisdiction Over Claims of Adult Children Defendant alleges that the adult children of the plaintiff homeowners (“plaintiff children”) have no federal cause of action, and that the court therefore lacks subject matter jurisdiction over their state law claims. The court considers these arguments separately. A. Existence of Federal Claim The plaintiff children contend that they have incurred certain costs recoverable under CERCLA that are sufficient to state a federal claim. Specifically, these plaintiffs claim costs in the form of expenses incurred “prior to and during litigation” for: 1) groundwater monitoring, 2) groundwater modeling and investigation, and 3) a health assessment by a toxicologist relating to plaintiffs’ exposure to TCE. Both the homeowners and the plaintiff children claim a pro rata share for these expenses, which total $13,781.02. Section 107(a)(4) of CERCLA subjects persons responsible for the release of hazardous substances to liability for: (A) all costs of removal or remedial action incurred by the United States Government [and] ... (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan .... 42 U.S.C. § 9607(a)(4) (emphases added). Defendant argues that the costs claimed by the plaintiff children are not recoverable either because they are not “response costs” or because they are not consistent with the national contingency plan. This contention requires a review of the nature of the expenses claimed and of the statutory and regulatory provisions authorizing their recovery. 1. Litigation Expenses Defendant first argues that CERC-LA does not authorize recovery of the plaintiff children’s claimed damages because these damages are litigation expenses and, as such, are not “response costs” under § 9607(a)(4)(B). The courts are divided as to whether the response costs recoverable under § 9607(a)(4)(B) include a private party’s litigation expenses. The only circuit court to have addressed this issue recently concluded that attorney fees and expenses are recoverable in such private actions, finding that “it would strain the statutory language to the breaking point to read them out of the ‘necessary costs’ that section 9607(a)(4)(B) allows private parties to recover.” General Elec. Co. v. Litton Indus. Automation Sys., Inc., 920 F.2d 1415, 1422 (8th Cir.1990). See also Lykins v. Westinghouse Elec., 18 Envtl.L.Rep. (Envtl.L.Inst.) 21,498 (E.D.Ky.1988)(1988 WL 114522, at 4) (dicta); but see United States v. Hardage, 750 F.Supp. 1460, 1511 (W.D.Okl.1990); T & E Indus., Inc. v. Safety Light Corp., 680 F.Supp. 696, 707-08 (D.N.J.1988). The court finds the view expressed by the Eighth Circuit in General Electric to be the more reasonable interpretation of the statute. It is true that Congress did not specifically address the issue of attorney’s fees and other litigation expenses in defining “response costs.” But there are a myriad of issues that are not expressly resolved by the statute, which has been criticized for failing to provide a satisfactory definition of response costs. See Artesian Water Co. v. Government of New Castle County, 851 F.2d 643, 648 (3d Cir.1988), aff'g, 659 F.Supp. 1269 (D.Del.1987); Ambrogi v. Gould, Inc., 750 F.Supp. 1233, 1240 (M.D.Pa.1990); Lutz v. Chromatex, Inc., 718 F.Supp. 413, 416 (M.D.Pa.1989). By providing private parties with a federal cause of action for the recovery of necessary expenses in the cleanup of hazardous wastes, Congress intended § 107 as a powerful incentive for these parties to expend their own funds initially without waiting for the responsible persons to take action. See Union Gas, 109 S.Ct. at 2285; Artesian Water, 659 F.Supp. at 1288; City of New York v. Exxon Corp., 633 F.Supp. 609, 616-17 (S.D.N.Y.1986); Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F.Supp. 283, 288 (N.D.Cal.1984); State ex rel. Brown v. Georgeoff 562 F.Supp. 1300, 1311-14 (N.D.Ohio 1983). The court can conceive of no surer method to defeat this purpose than to require private parties to shoulder the financial burden of the very litigation that is necessary to recover these costs. Thus, to the extent that any litigation costs incurred by plaintiffs fall within the meaning of the “necessary costs” authorized under § 9607(a)(4)(B), plaintiffs are entitled to recover such costs. Although CERCLA authorizes plaintiffs to recover litigation costs, this is not to say that such costs alone may provide the jurisdictional basis for plaintiffs’ untried state claims in federal court. It would create a jurisdictional novelty if the court were to allow a plaintiff possessing only state claims to bootstrap these claims into federal court simply with the litigation costs incurred in preparation for filing the claims in federal court. If the costs incurred by plaintiffs are deemed “litigation expenses,” these expenses must have been taken in pursuit of recovering response costs independent of the litigation expenses. Unlike the homeowners, the plaintiff children have alleged no response costs other than those for the monitoring of the groundwater and for the assessment of the health risk posed by the contaminated water. The court therefore considers whether the costs alleged by the plaintiff children independently fall within the statutory definition of response costs. 2. Groundwater Monitoring Plaintiffs characterize their groundwater monitoring and investigatory expenses only as “response costs” without further specification. Response costs under CERCLA, however, fall into two broad categories. The statute defines the term “response” to mean “removal, remedy, and remedial action.” 42 U.S.C. § 9601(25). “Removal actions” may include such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, ... or the taking of such actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment. ... Id. § 9601(23). In contrast, [t]he terms “remedy” or “remedial action” means [mean] those actions consistent with permanent remedy taken instead of or in addition to removal actions ... to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. Id. § 9601(24). “Removal” costs are those that are incurred in response to an immediate threat to the public health or environment and that are intended primarily for the short-term abatement of toxic waste hazards. Amland Properties Corp. v. Aluminum Co. of Am., 711 F.Supp. 784, 795 (D.N.J.1989)(quoting Piccolini v. Simon’s Wrecking, 686 F.Supp. 1063, 1068 (M.D.Pa.1988)). Remedial actions, however, are generally considered to be long-term or permanent. Id. (quoting T & E Indus., Inc. v. Safety Light Corp., 680 F.Supp. 696, 706 (D.N.J.1988)). See also Ambrogi v. Gould, Inc., 750 F.Supp. 1233, 1240 (M.D.Pa.1990). As to activities involving the investigation or testing of groundwater for the presence of hazardous substances, the courts appear to be in agreement that such activity constitutes “removal” action. Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892 (9th Cir.1986); Amland, 711 F.Supp. at 795. The court therefore concludes that under these facts plaintiffs’ groundwater testing was a removal action within the meaning of 42 U.S.C. § 9601(23). As such, these costs are potentially recoverable under CERCLA. Brewer v. Ravan, 680 F.Supp. 1176, 1179 (M.D.Tenn.1988). The court additionally notes that these testing costs are recoverable even though taken as additional measures, independent of those already taken by the KDHE. See Artesian Water, 851 F.2d at 651 (private party need not rely solely on state’s preliminary testing of ground water). Nonetheless, defendant contends that plaintiffs’ costs for groundwater testing, even if cognizable response costs, are not recoverable in this action because they are not “consistent with the national contingency plan” (“NCP”), as required under § 9607(a)(4)(B). See City of Philadelphia v. Stepan Chem. Co., 544 F.Supp. 1135, 1144 n. 16 (E.D.Pa.1982)(consistency with NCP relates to recoverability and not existence of valid claim). In a private CERCLA enforcement action, plaintiffs must establish that they incurred response costs consistent with the NCP. United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 749 (8th Cir.1986), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987); Ambrogi, 750 F.Supp. at 1239 (setting forth elements of prima facia case for recovery of response costs); Commerce Holding Co. v. Buckstone, 749 F.Supp. 441, 444 (E.D.N.Y.1990); Amland, 711 F.Supp. at 794. Pursuant to 42 U.S.C. § 9605, and as periodically authorized by executive order, the Environmental Protection Agency (“EPA”) promulgates the NCP. With respect to private enforcement actions under § 9607(a)(4)(B), the version of the NCP in effect a± the time plaintiffs conducted the groundwater testing provided: For purposes of cost recovery under section 107 of CERCLA ... a response action will be consistent with the NCP ... if the person taking the response action: (i) Where the action is a removal action, acts in circumstances warranting removal and implements removal action consistent with § 300.65. 40 C.F.R. § 300.71 (1989). In turn, the 1985 version of 40 C.F.R. § 300.65(a)(2) states in relevant part: Where the responsible parties are known, an effort initially shall be made, to the extent practicable considering the exigencies of the circumstances, to have them perform the necessary removal actions. Where responsible parties are unknown, an effort initially shall be made, to the extent practicable considering the exigencies of the circumstances, to locate them and have them perform the necessary removal action. Defendant argues that plaintiffs made no effort to have Cessna perform the testing of their groundwater, and that by virtue of this failure, plaintiffs’ response costs for this action are not consistent with the NCP. The court initially notes that the EPA extensively revised the NCP in 1990. See 55 Fed.Reg. 8,666-8,865 (1990). The EPA has also expressed its intention that the 1990 NCP apply retroactively to private response actions that are “underway,” although its view regarding completed response actions is somewhat vague. See 55 Fed.Reg. 8,795 (1990). See also Artesian Water, 659 F.Supp. at 1293-94. In any event, the court finds that both versions of the NCP obtain the same result in this case, and that it is unnecessary to address the issue of retroapplieability. For purposes of § 107 cost recovery actions, the EPA now requires only “substantial compliance” with certain requirements of the NCP, while exempting other “requirements” completely. 40 C.F.R. § 300.700(c)(3)© (1990). See also 55 Fed. Reg. 8,792-95 (1990). Among the provisions of the NCP that are “potentially applicable” to response actions by a private party is “[s]ection 300.415 (on removal actions) except paragraph] (a)(2),...." 40 C.F.R. § 300.700(c)(5)(vi) (1990)(emphasis added). This excepted paragraph of the section addressing removal actions provides: Where the responsible parties are known, an effort initially shall be made, to the extent practicable, to determine whether they can and will perform the necessary removal action promptly and properly. 40 C.F.R. § 300.415(a)(2) (1990). Thus, the provision of the NCP that currently defines what actions are deemed to be “consistent with the NCP” expressly exempts the paragraph that directs private parties to attempt to enlist the efforts of “responsible parties.” Such an exemption is not surprising, insofar as it is merely a continuation of the EPA’s policy under the 1985 NCP. See 55 Fed.Reg. 8,795 (1990)(concluding that compliance with 1985 NCP would also comply with 1990 NCP). Upon issuing the 1985 NCP, the EPA explained that two amendments to the plan would exempt § 106 and § 107 actions from the requirement of attempting to have the responsible parties perform the removal action: [RJemovals pursuant to section 106 of CERCLA and other non-Fund-financed response actions are not subject to the following requirements: 3. Requirement to locate responsible parties and encourage responsible parties to undertake the response action. To be consistent with the NCP for purposes of cost recovery under section 107 of CERCLA, all other requirements and criteria outlined in § 300.65 shall be met, where appropriate. Although EPA has not required that private parties try and locate responsible parties and encourage them to undertake the response, EPA believes that such action will be helpful if the private party contemplates attempting to recover response costs from the responsible parties. 50 Fed.Reg. 47,935 (1985)(emphases added). The EPA has consistently interpreted the “requirement” urged by defendant to be nothing more than a suggestion. “An agency’s interpretation of its regulations is ‘ “of controlling weight unless it is plainly erroneous or inconsistent with the regulation[s].” ’ “ Wickland, 792 F.2d at 892 (quoting Udall v. Tollman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965)). Because plaintiffs were not required to encourage defendant to conduct the groundwater testing, the failure to do so does not defeat the recoverability of this response cost, if otherwise consistent with the NCP. Defendant has presented no other challenge to these costs, and the court therefore concludes that the plaintiff children have stated a cognizable claim under CERCLA. See Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1575 (5th Cir.1988)(consistency with NCP cannot be resolved without development of relevant evidence). 3. Health Assessments The plaintiff children also claim a pro rata share of the expenses associated with a toxicologist’s assessment of the health risks arising from the community’s exposure to TCE. The courts have divided on the issue of the recoverability under CERC-LA of medical monitoring or testing costs. See Ambrogi v. Gould, Inc., 750 F.Supp. 1233, 1244-45 (M.D.Pa.1990)(citing cases); Werlein v. United States, 746 F.Supp. 887, 901-02 (D.Minn.1990) (same). In support of their position, plaintiffs rely on Brewer v. Ravan, 680 F.Supp. 1176 (M.D.Tenn.1988), the leading ease for the proposition that public-health-related medical testing expenses, as opposed to the costs of medical treatment, are recoverable response costs. With little analysis, Brewer stated that such “tests and screening clearly are necessary to ‘monitor, assess, [or] evaluate a release’ and, therefore, constitute ‘removal’ under section 9601(23).” 680 F.Supp. at 1179. The conclusion of the court in Brewer was rejected in an extensive analysis in Ambrogi v. Gould, Inc., 750 F.Supp. 1233, 1246-50 (M.D.Pa.1990). The Ambrogi court based it decision on several grounds. First, the court found that medical testing expenses are not within the scope of the language of § 9601(23), which generally confines the definition of removal actions to “such actions” as are necessary for the cleanup of hazardous substances — if not through the actual removal, then through responses that remove the threat posed to public health. Ambrogi also determined that recovery of medical costs would not “facilitate prompt, thorough, and cost-effective cleanup of a hazardous waste site,” contrary to the broader purposes of the statute. Id. at 1248. Finally, the court noted that Congress has expressly provided for medical examinations, testing, and monitoring at certain hazardous waste sites through the Agency for Toxic Substances and Disease Registry. Id. at 1249. The court finds the decision in Am-brogi and the cases it followed to reflect a more accurate reading of the statute. See also Werlein v. United States, 746 F.Supp. 887, 903-04 (D.Minn.1990) (concluding that medical testing expenses are not recoverable); Keister v. Chem. Corp., 59 U.S.L.W. 2371, 1990 WL 261861 (E.D.Ark. Nov. 11, 1990) (same). The court would be able to bring medical testing and health assessment costs within the meaning of “removal actions” only by reading the statutory language of § 9601(23) in isolation, without regard for the remainder of this subsection and the CERCLA statute as whole. Thus, plaintiffs may not rely on these claimed costs as a basis for federal jurisdiction under CERCLA. B. Pendent Jurisdiction over State Claims The court has concluded that the plaintiff children have stated a federal claim under CERCLA for the recovery costs in ground water testing. The documentation submitted by plaintiffs reveals a total cost for these services in the amount of $8,807.98. Thus, each of the 42 plaintiffs, who claim a pro rata share of these expenses, has incurred response costs in the amount of $209.71. As noted, supra note 18, defendant does not challenge the court’s jurisdiction over these plaintiffs’ state claims on the ground that their federal claims are insubstantial, but only that they are entirely absent. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) (state claims should be dismissed “if it appears that the state issues substantially predominate, whether in terms of proof, ... or of the comprehensiveness of the remedy sought....”); Thatcher Enters, v. Cache County Corp., 902 F.2d 1472, 1478 (10th Cir.1990). Nonetheless, as a jurisdictional matter, the court has an independent obligation to satisfy itself of the basis for hearing the state claims of the plaintiff children. See Commerce Holding Co. v. Buckstone, 749 F.Supp. 441, 446-47 (E.D. N.Y.1990) (dismissing state law claims that predominated over CERCLA claim); GRM Industries, Inc. v. Wickes Mfg. Co., 749 F.Supp. 810, 815 (W.D.Mich.