Opinion
CIVIL ACTION No. 99-1389-CM.
December 15, 2000
MEMORANDUM AND ORDER
This matter is presently before the court on the motion (Doc. 20) of defendant, the United States, to dismiss Count II of the amended complaint. The government alleges the court lacks subject matter jurisdiction. Finding that the acts and omissions of which the plaintiffs complain constitute the exercise of a discretionary function by the Environmental Protection Agency (EPA), the court determines that the Federal Tort Claims Act (FTCA) does not confer jurisdiction on this court over the plaintiffs' claims against the United States. Lacking subject matter jurisdiction, the court grants defendant's motion and dismisses the plaintiffs' claims against the government.
• Background
The circumstances surrounding this litigation involve a "superfund" site, under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., located in Wichita, Kansas and contaminated with various chemicals. The site, known as the 57th and N. Broadway Site, was turned over to the EPA by the Kansas Department of Health and Environment (KDHE) in 1990. Plaintiffs live in the Riverview neighborhood at some distance to the south-southwest of the original 57th and N. Broadway Site. Between the original site and the Riverview neighborhood is an intermittent stream called variously, the Chisholm Creek Floodway, the Valley Center Floodway, or the west branch of the Chisholm Creek. The EPA believed that the floodway would be a barrier to migration of the contaminated groundwater.
In 1989, the KDHE issued a report concerning the site in which it noted that contaminated groundwater was migrating in a south-southwest direction from the site toward residential areas which were at that time unaffected by the contamination and which relied upon private wells for residential water use. In 1993, the Agency for Toxic Substances and Disease Registry (ATSDR) did a Preliminary Public Health Assessment of the 57th and N. Broadway Site in which it stated that future movement of the contaminated groundwater could have an impact on private wells located outside the limits of the contaminated plume.
The EPA ordered additional testing in 1994, including sampling from the Riverview neighborhood. Of thirteen homes tested in the Riverview neighborhood, one had contamination at actionable levels. The EPA ordered further testing of twelve homes surrounding the home with actionable levels of contamination. That testing revealed no further contamination of health-based levels of concern. City water was provided to the home with an actionable level of contamination.
In 1996 the KDHE sampled wells at the superfund site and found contamination in a well south-west of the Valley Center Floodway. (Def.'s Reply, Ex. 3 at p. 4). In 1997, the EPA also discovered contamination southwest of the Floodway and, in December 1997, began testing homes in the Riverview neighborhood once again. In early 1998 the EPA sent out letters warning residents of ways to minimize or avoid exposure to hazardous chemicals and notifying residents of a scheduled informational meeting. At some point the EPA included the Riverview Operable Unit in the 57th and N. Broadway Site and began remediation actions, including initiating hookups to the Wichita public water supply.
In September 1999, the plaintiffs filed this action seeking compensation for losses due to contamination caused by the non-government defendants. On January 21, 2000, the plaintiffs filed an amended complaint pursuant to the FTCA alleging claims against the EPA in Count II. The government responded with the motion to dismiss presently before the court.
• Subject Matter Jurisdiction Pursuant to the FTCA
The doctrine of sovereign immunity requires that a sovereign will not be liable for the acts of its agents. See Cohens v. Virginia, 19 U.S. 264, 411-12 (1821) ("The universally received opinion is, that no suit can be commenced or prosecuted against the United States."). In 1946, Congress passed the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., in which it waived sovereign immunity for "the negligent or wrongful act or omission" of a governmental employee acting in the scope of his employment to the extent that a private person would be liable in similar circumstances under state law. 28 U.S.C. § 1346(b). However, Congress has provided that the government is not liable for any claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Id. § 2680(a). This provision is called the "discretionary function exception."
The Supreme Court has provided a two-step test to determine if the discretionary function exception applies. Berkovitz v. United States, 486 U.S. 531 (1988). Under step one, the court must determine whether the conduct at issue involves an element of judgment or choice by the governmental agency or employee or whether a federal statute, policy or regulation prescribes a specific course of action which the agency or employee is required to follow. Duke v. Dep't of Agric., 131 F.3d 1407, 1409 (10th Cir. 1997). If the conduct of the agency or employee is specifically prescribed, the discretionary function exception does not apply. Id.
If the court determines in step one that the conduct involves discretionary judgment, the court applies step two to "determine whether that judgment is the kind that the discretionary function exception was designed to shield." Id. (quoting Berkovitz 486 U.S. at 536). "Decisions that require choice are exempt from suit under the FTCA only if they are susceptible to policy judgment and involve an exercise of political, social, [or] economic judgment." Id. at 1410 (quoting Cope v. Scott, 45 F.3d 445, 448 (D.C. Cir. 1995)) (internal quotation marks omitted); see also Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1130 (10th Cir. 1999) (recognizing modification of step two to include susceptibility to policy judgment). "What matters is not what the decisionmaker was thinking, but whether the type of decision being challenged is grounded in social, economic or political policy." Cope, 45 F.3d at 449 (citing United States v. Gaubert, 499 U.S. 315, 325 (1991)). Requiring policy considerations as the basis for the exception secures Congress' desire to "prevent judicial `second guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Daigle v. Shell Oil Co., 972 F.2d 1527, 1538 (10th Cir. 1992).
In determining whether the discretionary function exception applies, the court will not consider whether the decision was negligent or wrongful because the discretionary function exception applies even if the discretion involved is abused. Duke, 131 F.3d at 1410-11; 28 U.S.C. § 2680(a). Furthermore, a judgment choice made with a mere hint of policy concerns is not within the exception. Such an approach would allow the exception to swallow the FTCA's waiver of sovereign immunity because virtually all acts involve some policy consideration. Duke, 131 F.3d at 1411. As the Cope court stated, "the discretionary function exception applies only where the question is not negligence but social wisdom, not due care, but political practicability, not reasonableness but economic expediency." Cope, 45 F.3d at 450 (internal quotation marks omitted).
• Discussion
• Preliminary Concerns
The amended complaint alleges that the plaintiffs were injured when the EPA violated a number of nondiscretionary regulatory requirements of the National Contingency Plan. (Am. Compl. ¶ 18). However, in response to the defendant's motion to dismiss, the plaintiffs assert that their only claim is that "the EPA should have informed the Riverview residents of the data in its possession." (Pls.'Resp. at 12). Moreover, plaintiffs concede that "no specific or mandatory federal statute or regulation required the EPA to inform the Riverview plaintiffs that it had allowed their drinking water to become contaminated." (Id. at 10). Therefore, the court finds at step one of its analysis that the acts of the EPA at issue involve an element of choice or judgment and are not subject to specific requirements of statute, regulation, or policy. Furthermore, the court finds that the plaintiffs have abandoned their allegations that the EPA violated regulatory requirements of the National Contingency Plan.
Applying step two of the Berkovitz analysis, the court must decide whether the EPA's decision about whether or when to warn the Riverview residents is the type of decision grounded in social, economic or political policy. If so, the discretionary function exception to the FTCA applies to this case, and the court does not have subject matter jurisdiction over the claims against the government. If not, subject matter jurisdiction is proper pursuant to the FTCA and the government's motion to dismiss must be denied.
Plaintiffs assert that the Tenth Circuit has ruled on numerous occasions that a government agency has a duty to warn. (Pls.' Response at 11). However, a proper analysis of the discretionary function exception does not involve consideration of any duty which the EPA may have to warn the residents. See Duke, 131 F.3d at 1410-11; Daigle, 972 F.2d at 1538; Boyd v. United States, 881 F.2d 895, 898 n. 3 (10th Cir. 1989) (claim based upon duty to warn, but whether the duty exists is a question of state negligence law). Negligence considerations arise only if jurisdiction is proper under the FTCA. See Duke, 131 F.3d at 1410-11; Daigle, 972 F.2d at 1538; Boyd, 881 F.2d at 896, 900. The Tenth Circuit held in Boyd that subject matter jurisdiction existed pursuant to the FTCA but stated that "[i]n no way are we passing on the government's culpability for negligence in the particular incident." Boyd, 881 F.2d at 900.
Plaintiffs argue that the decision not to warn is not grounded in policy concerns because these circumstances present no competing interests, the costs of warning are minimal, failure to warn is contrary to the purpose of CERCLA to protect the public health and welfare and the environment, and there is no actual policy basis to justify a decision not to warn. Defendant counters that for any discretionary agency decision there is a strong presumption that the decision is grounded in policy, that the decision not to warn in this case is susceptible to analysis pursuant to economic, social, and political policy considerations, that the decision at issue is inextricably tied up with discretionary agency decisions relating to the clean-up process at the 57th and N. Broadway Site, and that the "duty to warn" cases cited by the plaintiffs are distinguishable as cases based upon duties of government landowners. Moreover, the court notes that the "failure to warn" argument, when viewed in light of the fact that the EPA issued warnings in early 1998, is really an argument that the EPA made an untimely warning.
While the court acknowledges the purpose of CERCLA to protect the public health and welfare and the environment, the act recognizes that priorities must be established in implementing that purpose. Daigle, 972 F.2d at 1540. The EPA must balance priorities in implementing the act "with the realities of finite resources and funding considerations." Id. at 1541. CERCLA does not operate to make the EPA the guarantor of the public health and welfare.
• Policy Considerations
The court next addresses whether the decision about whether or when to warn is grounded in social, economic, or political policy in light of the circumstances of this case. There are at least two areas in which social policy is implicated in a decision whether or when to warn in these circumstances. As the government argues, the agency could be concerned with public anxiety and uncertainty caused by any warning based upon speculative or uncertain data. Furthermore, an early warning based upon projections or inconclusive data might foster confusion.
The issue of timing of the warnings is fraught with social policy concerns. If the Chisholm Creek Floodway provided a groundwater barrier as the EPA hoped, an early warning may cause needless concern to residents of the Riverview neighborhood and would likely depress property values in the area without any real basis. If the warning was issued before any contamination was detected in Riverview, the agency might feel compelled to explain that it believed the Floodway to be a natural barrier to migration of the contaminated groundwater. Some residents might conclude that the agency was being overly cautious, and ignore later warnings if the contamination actually materialized. Others might become very concerned and react impulsively or inundate the agency with requests for information and special testing.
If the agency issued a warning to all residents after the first indication of any contamination in the Riverview neighborhood, it could not with reasonable confidence tell whether the contamination was the result of migration or of a localized problem affecting only a small area. That may cause anxiety and confusion without providing direction to any but those whose water was known to be contaminated.
The decision whether or when to warn raises economic policy considerations also. The plaintiffs assert that the costs of warning would be minimal. Further, plaintiffs argue that the EPA could have posted signs in the neighborhood warning that the groundwater was dangerous to human health, or could have made its mailing in 1996 rather than 1998. Assuming these assertions to be true, they beg the question of whether the decision of whether or when to warn is susceptible of economic policy considerations.
The EPA was working on a plan for the 57th and N. Broadway Site and was monitoring the area for migration of the groundwater contamination. An early warning would necessitate earlier funding of the warning process. The agency would be required to transfer resources from its mediation efforts to answer questions, explain its position, and respond to community concerns. Moreover, as the agency argues, planning and implementing a warning campaign is a complex process involving the commitment of resources in time, personnel and money. All of this involves questions of when and where to utilize the EPA's limited resources. There are over 1200 sites on the superfund list, 65 Fed. Reg. 46096, 46100 (July 27, 2000), and the EPA must attempt to use its resources effectively and efficiently. Although the economic concerns in this case are, perhaps, of lesser significance than other policy concerns, they are not without weight.
Political policy is also implicated in the decision whether or when to warn. The agency must determine whether to warn of all "potential" problems or only of immediate problems. That decision will affect public, and perhaps even legislative, involvement and pressures to reconsider the priorities for various actions and resource deployments. A related consideration is at what point to warn. Should the agency warn when it is aware of: (1) "potential" for contamination with no current contamination, (2) a just-detectable level of contamination, (3) a level of contamination which would only affect health after significant, long-term exposure, or (4) some other actionable level of contamination? There could be proponents for each of these levels of contamination as the threshold warning level. The EPA must decide the best level in each set of circumstances and should not be subject to judicial second-guessing for its decision.
The circumstances of this case illustrate the problem. Plaintiffs complain that the agency required that city water be provided to certain homes in the Riverview neighborhood in 1994, but that the agency did not warn other residents at that time. The EPA argues that it required water be provided to homes with active contamination, but that it viewed that contamination as an "anomaly" and, at that time, had insufficient "evidence to alter its belief that the Chisholm Creek Floodway would act as a ground water barrier to prevent contaminants from migrating from the Northern plume to what is now called the Riverview plume." (Def.'s Reply at 10). The EPA is required to make just such decisions based upon its best judgment. It is not the intent of the FTCA that the EPA be liable in tort if, in hindsight, the agency is proven less than omniscient.
Furthermore, the government argues that the EPA should not be required to act based upon information obtained from other agencies without the opportunity to conduct its own investigation and testing to confirm such information and determine the appropriate course of action. The court agrees. Any other holding would render the agency no more than a pawn of whatever external entity first presented data arguably showing contamination and a potential risk to the public health and welfare.
Finally, the court notes that precedent may be a policy consideration in deciding whether, and when, to warn of potential dangers. As discussed previously, the EPA does not have the resources to address every danger to the public health and welfare immediately or simultaneously. If the EPA determined that a warning should be given in this case as soon as it became aware of a potential future risk, it would set a precedent which could be argued by anyone exposed to potential future risk in other locations and situations. The EPA would then be pressured to warn anyone who might be subject to every imaginable potential future risk. In short order the agency could find itself committing a significant portion of its resources to identifying and warning of every conceivable potential future risk associated with each site over which it is exercising control.
In conclusion, the court finds that the decision whether or when to warn in the circumstances of this case is "fraught with . . . public policy considerations." Cope 45 F.3d at 449. That decision is the type of decision contemplated by Congress in providing the discretionary function exception to the FTCA. Therefore, the court finds that the discretionary function exception applies to this case, that this court does not have subject matter jurisdiction over the plaintiffs' claims against the government, and that the government's motion to dismiss Count II of the amended complaint should be granted.
• Order IT IS THEREFORE ORDERED that the government's motion (Doc. 20) to dismiss Count II of the amended complaint is granted, and all claims against the United States are dismissed. This action shall proceed on all claims by the plaintiffs against the non-government defendants.
Dated this day of January 2001, at Kansas City, Kansas.