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Waverley View Inestors, LLC v. United States

United States District Court, D. Maryland

January 13, 2015

WAVERLEY VIEW INVESTORS, LLC
v.
UNITED STATES OF AMERICA

Page 564

For Waverley View Investors, LLC, Plaintiff: Kirsten L Nathanson, LEAD ATTORNEY, Crowell and Moring LLP, Washington, DC; Clifford J Zatz, Dawn Kelly Miller, R Timothy McCrum, PRO HAC VICE, Crowell and Moring LLP, Washington, DC; Ridgway M Hall, Jr, Washington, DC.

For United States Of America, Defendant: Geoffrey C Cook, LEAD ATTORNEY, Matthew Kundinger, U.S. Department of Justice, Civil Division, Washington, DC; Thomas H Barnard, LEAD ATTORNEY, Office of the U.S. Attorney, Baltimore, MD; Leon B Taranto, U.S. Dept of Justice, Washington, DC; Sarah Williams, Department of Justice, Civil Division, Washington, DC.

Page 565

MEMORANDUM

Catherine C. Blake, United States District Judge.

Plaintiff Waverley View Investors, LLC (" Waverley" ) sues the United States under the Federal Tort Claims Act (" FTCA" ) for negligence, trespass, and private nuisance arising out of the United States Army's waste disposal and remediation practices at Fort Detrick, which have contaminated groundwater beneath Waverley's land. The United States filed a motion to dismiss for lack of subject matter jurisdiction on the grounds that Waverley's claims fall within the FTCA's discretionary function exception (" DFE" ). The court held a hearing on the motion on December 15, 2014. For the reasons stated below, the motion to dismiss will be granted.

BACKGROUND

This lawsuit arises out of groundwater contamination caused by hazardous chemicals that have migrated from Fort Detrick. Specifically, Waverley alleges the United States' waste management practices at Fort Detrick caused the levels of trichloroethylene (" TCE" ), tetrachloroethlyene (" PCE" ),[1] and dichloroethlyene (" DCE" ) on Waverley's land to exceed federal maximums, (Pl.'s Opp'n Ex. 10, Tonkin & Hennet Decl. ¶ 10, ECF No. 23-11), thereby delaying and ultimately precluding Waverley from developing its land. Waverley now seeks $37.2 million in compensatory damages. A summary of relevant facts follows.

Fort Detrick became home to the United States' biological weapons program during World War Two. During that war, the military began investigating, developing, and testing various biological agents at Fort Detrick. (Def.'s Mot. Dismiss Ex. 1, Curtis Decl. ¶ 9, ECF No. 18-4.) This program stopped, however, in 1969, when President Nixon renounced offensive biological warfare and directed the Department of Defense (" DoD" ) to dispose of existing biological weapons stocks. ( Id. ¶ 10.) Since then, Fort Detrick has focused on biomedical research and development, medical logistics, materiel management, and telecommunications. ( Id.) Today, Fort Detrick remains an active Army installation occupying 1,146 acres within the city limits of Frederick, Maryland. (Def.'s Mot. Dismiss Ex. 5, Gortva Decl. ¶ 4, ECF No. 18-8.)

The part of Fort Detrick at issue here is a 399-acre parcel of land called Area B, which is separated from the fort's main operations area. ( Id. ¶ 6.) Area B was the locus of Fort Detrick's biological testing and--important for the purposes of this litigation--its waste management practices. ( Id.) The Army disposed of all kinds of waste in Area B. And, in doing so, the Army used standard industry practices: it separated contaminated from conventional solid waste; divided solid waste into burnable and nonburnable wastes, the former

Page 566

going to incinerators and the latter to landfills; and sent liquid waste into a separate sewer system. (Curtis Decl. ¶ 11.)

Within Area B, the Army set up waste pits in which it buried various nonburnable wastes. The specific waste pits at issue here are in a subsection called Area B-11, which lies on Area B's--and the fort's--edge. Area B-11 is also next to Waverley's land. (Pl.'s Opp'n Ex. 1, Anderson Decl. ¶ 11, ECF No. 23-2.) In Area B-11, the Army disposed of various acids and chemicals, including the TCE and PCE at issue here, from 1955 to 1970.[2] (Curtis Decl. ¶ ¶ 12, 17.) The chemicals the Army buried in Area B-11 were " integral tool[s]" in advancing the military's mission. ( Id. ¶ 13.) The Army used TCE to degrease metal parts and help freeze biological warfare agents. ( Id.) And the Army used PCE to decontaminate clothing that had been exposed to anthrax and to neutralize organisms used in biological warfare simulants. ( Id.)

The pits in Area B-11 were dug about 15 feet deep, 12 feet wide, and 20 feet long and treated with fluorescein dye to track water flow. ( Id. ¶ 17.) At the time, " it was common practice to dispose of wastes in unlined landfills." (Def.'s Mot. Dismiss Ex. 18, Defense Environmental Restoration Program Annual Report to Congress (2000) (" 2000 Annual Report" ), at 4, ECF No. 18-21.) The pits in Area B-11 were likewise unlined. (Federal Facility Agreement § 6.4.) Moreover, the pits were neither systematically numbered nor accurately documented. ( Id.) The Army appears to have stopped using disposal areas in the southwest part of Area B, including Area B-11, by 1972. (Curtis Decl. ¶ 16.)

In the early 1970s, the Department of Defense was not legally required to address environmental problems caused by past military operations. (2000 Annual Report, at 3-4.) In 1975, however, it decided to begin " working to clean up the environment and protect human health" at military installations nationwide through what was called the Installation Restoration Program (" IRP" ). ( Id.) That same year, the Army began publishing Army Regulation 200-1, which " provide[d] general guidance to elements within the Department of the Army on environmental protection" and " prescrib[ed] policies, responsibilities, and procedures for the protection and preservation of environmental quality for the Department of the Army in peacetime." (Def.'s Mot. Dismiss Ex. 26-1, Army Regulation 200-1 (1975), ECF No. 18-32.)

In 1977, the Army conducted an initial assessment of contamination at Fort Detrick. ( See Pl.'s Opp'n Ex. 12, Installation Assessment of Fort Detrick (1977), ECF No. 23-13.) This began with an " onsite records search" that looked for " indications of possible contamination by chemical, biological[,] radiological and industrial materials resulting from past research[,] testing, storage, demilitarization and disposal operations." ( Id. at 1.) The authors of the records search concluded that " [t]he records and historical operations suggest that Area B is contaminated with CBR [chemical, biological, and radiological] material" and that an ad hoc committee be formed to make recommendations for further action. (Def.'s Mot. Dismiss Ex. 2,

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Record Evaluation Report No. 106 (1977), at iv, ECF No. 18-5.) The committee reviewed the report but recommended against a more elaborate " preliminary survey" at Area B, in part because it was not yet " obligatory . . . to certify beyond question that there is no CBR contamination at Fort Detrick . . . ." (Installation Assessment of Fort Detrick (1977), at 2.) The committee also recognized that conducting a preliminary survey would " present special difficulties" and that " extreme caution" was necessary to protect the public from drilling operations, which could release hazardous substances into the environment. ( Id. at 4, 5.)

In 1980, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (" CERCLA" ), which " require[d] responsible parties to clean up releases of hazardous substances to the environment." (2000 Annual Report, at 4.) In 1986, the Superfund Amendments and Reauthorization Act (" SARA" ) expanded CERCLA and formally established the Defense Environmental Restoration Program (" DERP" ), which continued the efforts begun by the Installation Restoration Program. ( Id.) In recognition of the complexity of the task facing the federal government,[3] SARA included a CERCLA regulation clarifying that the federal government's responses to a particular environmental hazard were " discretionary governmental functions" and that CERCLA did not " create any duty of the federal government to take any response action at any particular time." 40 C.F.R. § 300.400(i)(3) (originally found at 40 C.F.R. § 300.61(e)(3) (1986)). DERP established a multiple-step process for the " identification, investigation, and cleanup of contamination and military munitions associated with past activities at DoD facilities . . . ." (2007 Annual Report, at 9.)

In 1981, an EPA contractor conducted a preliminary assessment of Fort Detrick. ( See Pl.'s Opp'n Ex. 17, Preliminary Assessment of Fort Detrick (1981), at § 2, ECF No. 23-18.) The assessment concluded that, even though the " potentially contaminated areas" were no longer in use, " they can't be certified as clean." ( Id.) The assessment also noted that " Fort Detrick is presently installing a monitoring well network to determine if any toxic materials are migrating." ( Id.) The assessment recommended that, going forward, " the State and EPA monitor the Army's investigations." ( Id.)

The Army continued to monitor Fort Detrick's environmental situation into the 1990s. In 1991, monitoring wells detected TCE contamination at Area B, which prompted the restoration effort that continues to this day. (Gortva Decl. ¶ 7.) In 1992, a preliminary site inspection conducted by the Army Corps of Engineers identified five landfill areas as " waste sources with potential to release." (Def.'s Mot. Dismiss Ex. 7, Preliminary Site Inspection (1992), at 67, ECF No. 18-10.) The Army Corps of Engineers recommended more soil and surface water sampling. ( Id.) Later that year, the Maryland Department of the Environment found TCE contamination in residential wells near Fort Detrick. (Federal Facility Agreement § 6.10.) The Army immediately provided an alternative water source to affected residents. (Gortva Decl. ¶ 11.)

The Army continued to conduct fieldwork to identify the scope of contamination in and around Fort Detrick until 1997, when the Army confirmed that Area B-11 was the primary source of TCE and PCE

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contamination. (Id. ¶ ¶ 13-15.) The Army completed a draft remedial investigation in 1998. (Def.'s Mot. Dismiss Ex. 9, Area B-11 Chemical Waste Disposal Pits Decision Document (2000), at § 2.2.1, ECF No. 18-12.) In 2000, recognizing " the elevated levels of [TCE] and [PCE] in the groundwater near . . . Area B-11[,]" the Army decided to conduct an interim removal action that would " remove the primary source of the groundwater contamination in Area B, thereby preventing future releases." ( Id. at § § 1.3-1.4.) The Army's decision document analyzed three " removal alternatives" for addressing Area B-11 contamination and ultimately chose to use soil freezing, excavation, and off-site incineration to contain the waste pits. ( Id. § § 2.9, 2.11.1.) The interim removal action, which began in 2001, was complex, requiring containment tents, freeze walls, and the removal of thousands of tons of contaminated soil. (Def.'s Mot. Dismiss Ex. 11, Fort Detrick Interim Removal Action Area B-11 Disposal Pits Technical Closure Report, at § § 1.0, 1.3, ECF No. 18-14.) As a result, the action cost $25 million and was not completed until 2004. (Gortva Decl. ¶ 25.) But the action succeeded in reducing TCE and PCE concentrations in the groundwater in Area B. ( Id. ¶ 26.)

With the interim removal action completed, the Army continued to monitor groundwater in Area B, but decided to institute a " prohibition on future intrusive activities" because of the " complex safety requirements and associated costs." (Federal Facility Agreement § 6.11.) The Army continued to consider its options and eventually decided to install landfill caps that would prevent further groundwater contamination. (Gortva Decl. ¶ 33.)

In 2009, the EPA placed Fort Detrick's Area B on the National Priorities List, which meant EPA, instead of the Maryland Department of the Environment, would be responsible for leading Area B's remediation. ( Id. ¶ ¶ 34-35.) The Army and the EPA entered into a Federal Facility Agreement, which outlined their respective responsibilities in this process. To this day, the Army continues to conduct its remedial investigation of Area B. ( Id. ¶ ¶ 45-48.)

In 2012, Waverley bought the 92.8-acre parcel of undeveloped land next to Area B-11. (Anderson Decl. ¶ 5.) It did so with the intention of creating a residential development there. ( Id. ¶ 9.) Though it was aware of contamination concerns near Fort Detrick when it bought the land, Waverley knew the Maryland Department of the Environment had issued a " No Further Requirements Determination" regarding the land. (Id. ¶ ¶ 10-14.) But groundwater testing conducted by the Army in January 2014 revealed that Waverley's land had been contaminated by TCE and PCE at levels far exceeding federal maximums. ( Id. ¶ 16.)

On May 8, 2014, Waverley filed this lawsuit against the United States. The United States filed a motion to dismiss for lack of subject matter jurisdiction, citing the discretionary function exception to the FTCA. Waverley opposed this motion, claiming the Army's past waste disposal practices in Area B-11 and its past and present waste remediation efforts at Fort Detrick violated a variety of provisions that allegedly ...


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