Myers v. U.S.

• Decision Date: 15 July 2011
• Docket Number: No. 09–56092.,09–56092.
• Parties: C. MYERS, guardian ad litem; L.M., a minor, Plaintiffs–Appellants,v.UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

652 F.3d 1021

11 Cal. Daily Op. Serv. 8930

2011 Daily Journal D.A.R. 10,719

C. MYERS, guardian ad litem; L.M., a minor, Plaintiffs–Appellants,

v.UNITED STATES of America, Defendant–Appellee.

No. 09–56092.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2010.Filed July 15, 2011.

Stephen T. Cox, Cox and Moyer, Pebble Beach, CA, and Scott J. Allen, LaRiviere, Grubman & Payne, L.L.P., Monterey, CA, for the plaintiff-Appellant.Karen P. Hewitt, United States Attorney, S.D. Cal., San Diego, CA; Tony West, AAG Civil Div.; J. Patrick Glynn, Dir., Torts Branch; Adam Bain, Sr. Trial Counsel, Torts Branch; Kirsten L. Wilkerson, Charles A. Quinlan III, John J. Schoemehl, Trial Attorneys, Torts Branch, Washington, D.C., for the defendant-appellee.Appeal from the United States District Court for the Southern District of California, Roger T. Benitez, District Judge, Presiding. D.C. No. 3:02–cv–01349–BEN–AJB.Before: ALEX KOZINSKI, Chief Judge, JOHNNIE B. RAWLINSON, Circuit Judge, and MARK W. BENNETT, District Judge.^*Opinion by Judge Bennett; Partial Concurrence and Partial Dissent by Judge Rawlinson.

OPINION

BENNETT, District Judge:

Plaintiffs seek damages from the United States for injuries to a child allegedly caused by exposure to the toxic heavy metal thallium from soil dumped into a landfill adjacent to the child's residence and school. The child, by her guardian ad litem, appeals a decision of the district court finding that the United States acted “reasonably” and did not breach any duty in conducting the soil remediation project. The district court also found that it did not have subject matter jurisdiction, because the “discretionary function” exception to tort liability of the United States applies in this case. We reverse and remand for further proceedings.

I. BACKGROUND

A. Factual Background

Whether or not the district court's findings of fact are clearly erroneous depends upon “the entire evidence” in the record. See United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir.2009) ( en banc ). Therefore, this statement of the factual background identifies both the district court's findings and other evidence in the record that is relevant to the review of the district court's findings.

As the district court found, in 1989, the Environmental Protection Agency (EPA) placed the United States Marine Corps Base at Camp Pendleton on the “National Priorities List” of sites requiring environmental cleanup. The Department of the Navy entered into a comprehensive environmental cleanup plan for Camp Pendleton, known as a Federal Facility Agreement (FFA), with the concurrence of the EPA, the California Department of Toxic Substances Control (DTSC), and the San Diego Regional Water Quality Control Board (RWQCB).

Although the district court did not refer to such a provision in its findings, the FFA required, among other things, that the Navy,¹ as the party responsible for the cleanup, designate a Quality Assurance Officer (QAO) as follows:

20.1 In order to provide quality assurance and maintain quality control regarding all field work and sample collection performed pursuant to this Agreement, the Marine Corps agrees to designate a Quality Control Officer (QAO) who will ensure that all work is performed in accordance with approved work plans, sampling plans and QAPPS [Quality Assurance Project Plans]. The QAO shall maintain for inspection a log of quality assurance field activities and provide a copy to the Parties upon request.FFA, ¶ 20.1. The district court did not note in its findings that the Naval Facilities Engineering Command (NAVFACENGCOM) also uses a Safety and Health Program Manual (the Manual) for all environmental cleanup operations. The Manual specified, in pertinent part, that “[e]ach NAVFACENGCOM activity shall ensure that plans are reviewed and accepted prior to issuing the Notice to Proceed.” Manual, ¶ 0407.b. The Manual also provided as follows:

c. Reviews. All HASPs [ (health and safety plans) ] shall be reviewed prior to initiating site work by a competent person. Competent person shall mean a certified industrial hygienist [ (CIH) ] or equivalent by training and/or experience. In addition, an EFD/EFA Construction Safety Manager or designated representative who has sufficient knowledge and authority to review and accept construction safety procedures shall review HASPs for construction safety requirements.

Manual, ¶ 0407.c.

Sites at Camp Pendleton requiring cleanup were divided into “operable units.” “Operable Unit 3” (OU–3) consisted of five contaminated areas where wastes had been burned. Tests of the soil in all five areas indicated contamination with toxic substances, but two, known as Sites 1A and 2A, showed elevated levels of thallium.² As to the sites showing elevated levels of thallium, the district court found as follows:

Of the 154 samples [taken at Site 1A], only one sample exceeded the safe standard for thallium—and not by much. At Site 2A, 99 soil samples were taken. ... Of the samples, only two samples exceed[ed] the safe standard for thallium. One sample was only a little high. The other sample was high, but appeared to be an unreliable test result. The Defendant's contractor used the Inductively Couple Plasma—Atomic Emission Spectroscopy method to identify thallium in the soil samples. That method sometimes produces false positives where there are metals in the sample. In the soil at site 2A, there were high concentrations of other metals such as zinc and manganese, which likely caused the false positive test for thallium. Lead was much more prevalent than thallium in the soil moved to Box Canyon and was considered to be the primary risk to human health.

Although the district court found that lead was the primary risk to human health, the Navy's “Record of Decision” (ROD), which set forth its plan to clean up or “remediate” the sites in OU–3, actually states, “[t]he primary contributors to the HI [hazard index] [for Site 1A] are arsenic, copper.” Lead is not mentioned in that list, although concentrations of lead above established safety levels were also noted. Similarly, the ROD actually states, “The primary hazard contributors [for Site 2A] are manganese, thallium, and zinc.” Again, lead is not mentioned in that list, although concentrations of lead above established safety levels were again noted.

The HI for both Site 1A and Site 2A indicated that there was a potentially “unacceptable” risk to human health requiring cleanup. However, the district court found that the thallium at these sites was believed to be in low concentrations in the contaminated soil.

The Navy's plan to clean up or “remediate” the sites in OU–3 involved excavation of contaminated soils from the OU–3 sites, transportation of those soils across the base by dump truck, and dumping of those soils into a landfill known as Box Canyon Landfill or Site 7. The Box Canyon Landfill was adjacent to the Wire Mountain Family Housing area of the Marine Corps base at Camp Pendleton and near an elementary school.

The Navy contracted with IT/OHM to perform much of the work on the OU–3 project. The Navy's contract with IT/OHM required IT/OHM to prepare a HASP (referred to in the contract as a “Site Health and Safety Plan” or SHSP), and IT/OHM did so. Under the HASP, IT/OHM's industrial hygienist (or “Health and Safety Officer”) had on-site responsibility and authority to modify or stop work if working conditions presented a risk to health and safety. The HASP included requirements for monitoring ambient air and airborne contaminants, including levels for “total dust” that should have required work stoppages. If dust levels from monitors placed near the housing area or the school exceeded a certain level, then the contractor was to determine the source of the dust, increase the dust control efforts in the landfill, and if increased dust control measures were “ineffective,” stop soil moving activities in the landfill. The district court found that the air monitors employed by IT/OHM were appropriate for the task. However, the district court failed to note that the air monitoring device specified did not monitor “total dust,” but only dust particles smaller than a certain size. In addition to air monitoring requirements, the HASP required wetting of newly dumped soil to suppress dust and covering of contaminated soil with layers of uncontaminated soil.

The Manual, ¶ 0407.c, required the Navy to approve the HASP before work was to begin. Nevertheless, there is no evidence that either of the Navy's CIHs ever approved the HASP for the OU–3 project. One of the Navy's CIHs, Janet Corbett, testified that she did not review the HASP. The Navy's other CIH, Andrew Bryson, testified that he had no record showing that he had reviewed the HASP for the OU–3 project and that he did not recall doing so.

During the summer and early fall of 1999, in the course of executing the OU–3 soil remediation plan, 240,000 cubic yards of contaminated soil from four polluted sites were transported to and disposed of in the Box Canyon Landfill, including soil from the two sites contaminated with thallium. During the project, Navy personnel monitoring the project met regularly with personnel from IT/OHM. The district court found that there were “occasions” in the course of the project when the air monitoring equipment registered dust levels in excess of the levels that were supposed to require work stoppages (called “exceedences” by the parties), but did not note that record evidence showed that such exceedences occurred more than 200 times. The district court found that action levels were set so low that there “were exceedences where there was no visible dust.” It is undisputed that the work was never stopped because of these exceedences. The district court did not find, but the undisputed record evidence shows, that the Navy's QAO for the project, Nars Ancog, never looked at the air monitoring data collected by IT/OHM,...