1 F.3d 246 (4th Cir. 1993), 92-2414, Muth v. United States

Docket Nº:92-2414.
Citation:1 F.3d 246
Party Name:D.P. MUTH; J.P. Muth, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Case Date:August 06, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 246

1 F.3d 246 (4th Cir. 1993)

D.P. MUTH; J.P. Muth, Plaintiffs-Appellants,

v.

UNITED STATES of America, Defendant-Appellee.

No. 92-2414.

United States Court of Appeals, Fourth Circuit

August 6, 1993

Argued March 31, 1993.

Page 247

Gary Edward Pullin, Cleek, Pullin & Bibb, Charleston, WV, argued (Travis S. Haley, on brief), for plaintiffs-appellants.

Paul Lee Yanowitch, Civil Div., U.S. Dept. of Justice, Washington, DC, argued (Stuart M. Gerson, Asst. Atty. Gen., Michael W. Carey, U.S. Atty., Donald L. Stennett, Asst. U.S. Atty., J. Patrick Glynn, Director, Torts Branch, Joann J. Bordeaux, Deputy Director, Torts Branch, Christina M. Humway, Civil Div., U.S. Dept. of Justice, on brief), for defendant-appellee.

Before RUSSELL and LUTTIG, Circuit Judges, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

HILTON, District Judge:

Appellants D.P. Muth and J.P. Muth bring this appeal from an order of the district court granting summary judgment to appellee United States, on the grounds that the statute of limitations for this action, pursuant to the Federal Torts Claims Act (FTCA), 28 U.S.C. Sec. 2401(b), has expired. 804 F.Supp. 838. Appellants also appeal the district court's dismissal of J.P. Muth according to Federal Rule of Civil Procedure 12(h)(3), for failure to fulfill a jurisdictional prerequisite. We affirm.

Appellants D.P. Muth and J.P. Muth own approximately 20 acres of land near the center of what was an 8000 acre complex known as the West Virginia Ordnance Works (WVOW). The WVOW produced trinitrotoluene (TNT) from 1942 until 1945. Following efforts to clean up any areas contaminated by TNT by-products, parcels of the WVOW were sold to private individuals. D.P. Muth obtained 20 acres of property through four separate conveyances from the United States over the course of four decades. 1 Each conveyance was originally to Mason Furniture Company (MFC), a business operated by D.P. Muth from 1948 until 1976. In 1988, MFC deeded all four parcels, totalling the twenty acres, to D.P. and J.P. Muth.

By May of 1981, certain areas of the former WVOW were found to be contaminated with by-products of the TNT manufacturing process. After an investigation, the Environmental Protection Agency (EPA) listed the WVOW on its National Priorities List. 2 The USATHMA conducted a remedial investigation of the site from 1984 until 1986, and in 1986 published and disseminated the Remedial Investigation Final Report (RIFR). The RIFR showed no nitroaromatic contamination of the Muths' water wells, but did document contamination in areas within one quarter mile of their property. 3

During 1989 and 1990, a supplemental investigation of the WVOW was conducted,

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which included taking over 22 soil and water samples 4 from appellants' property. Again, the USATHMA concluded in its 1991 Supplemental Investigation Final Report (SIFR) that neither the soil nor water samples from appellants' property showed signs of nitroaromatic contamination.

Beginning in September 1988, and continuing through August 1992, appellant D.P. Muth corresponded with the Army, the EPA and various elected representatives on matters relating to contamination discovered at the WVOW site. In at least three letters written to the government before July of 1989--more than two years before the administrative claim was filed--the appellant explicitly indicated that he knew the former use of his property, that contaminants had been discovered at property adjacent to and surrounding his property, and that, as a result, his property had been rendered worthless.

In his first correspondence with the government, dated September 19, 1988, D.P. Muth wrote to the Army and the EPA, requesting that the Army check his property for contamination. Muth specifically noted in the letter that his property was located near or adjacent to sites where contaminants were detected. He advised the government that he knew that a facility used in the TNT production process, the sellite plant, had been located on his property. Muth further stated that he was aware that the Army had sampled the water supply wells on his property, and had installed numerous test wells on the WVOW site. He in fact noted, "the [Army contractor] ... used my property as their base of operations." Finally, Muth admitted in the letter that he knew that the value of his property had been affected by the discovery of contamination: "This past week I offered my property for the new industrial park and I was told by the management of the present industrial park that property in the old TNT plant site was not desirable for any industry...."

In early November 1988, both the EPA and the Army responded to D.P. Muth's inquiries. Both agencies advised the appellant of the pertinent results of the aforementioned remedial...

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