Lockett v. U.S., 89-1768

• Decision Date: 03 July 1991
• Docket Number: No. 89-1768,89-1768
• Parties: , 60 USLW 2107, 22 Envtl. L. Rep. 20,216 Willie Mae LOCKETT, George R. Jackson, Thelma Y. Jackson, Nathaniel Johnson, Sylvester McQueen, Dorothy L. McQueen, Linnon Nixon, Edith Nixon, Ada Partlow, Luther Wiggins, Ira L. Wilson, Kevin L. Carter, Joanne Davis, Cynthia Davis, Ronald Davis, Henry Dillard, Lucy Bell Dillard, Albert Nicholson, Annie J. Torry, and Charles White, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 630

938 F.2d 630

33 ERC 1609, 60 USLW 2107, 22 Envtl.

L. Rep. 20,216

Willie Mae LOCKETT, George R. Jackson, Thelma Y. Jackson,

Nathaniel Johnson, Sylvester McQueen, Dorothy L. McQueen,

Linnon Nixon, Edith Nixon, Ada Partlow, Luther Wiggins, Ira

L. Wilson, Kevin L. Carter, Joanne Davis, Cynthia Davis,

Ronald Davis, Henry Dillard, Lucy Bell Dillard, Albert

Nicholson, Annie J. Torry, and Charles White, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 89-1768.

United States Court of Appeals, Sixth Circuit.

Argued March 13, 1991.

Decided July 3, 1991.

Donnelly W. Hadden (argued), Donnelly W. Hadden, P.C., Detroit, Mich., for plaintiffs-appellants.

Geneva S. Halliday, Asst. U.S. Atty., Detroit, Mich., Sally M. Rider (argued), U.S. Dept. of Justice, Torts Branch Civ. Div., Washington, D.C., for defendant-appellee.

Before RYAN, Circuit Judge, and EDWARDS and WELLFORD ^*, Senior Circuit Judges.

RYAN, Circuit Judge.

This is an appeal from the dismissal of an action brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 2671, et seq., alleging negligence by the Environmental Protection Agency ("EPA") in its handling of a scrap yard site contaminated with polychlorinated biphenyls ("PCBs" or "PCB"). The district court granted the government's motion for summary judgment and dismissed the suit pursuant to 28 U.S.C. Sec. 2680(a), the discretionary function exception to the FTCA. Lockett v. United States, 714 F.Supp. 848 (E.D.Mich.1989). Plaintiffs appeal, claiming the discretionary function exception is not available to the government on the facts of this case. We disagree, and affirm the district court's judgment of dismissal.

I.

Plaintiffs are twenty people who lived near a scrap yard used by Carter Industrial, Inc. in Detroit, Michigan. Carter was engaged in scrap reclamation, and had stockpiled a number of old electrical transformers on its property. Dielectric fluid within such transformers often contains high concentrations of PCBs, which are carcinogenic chemicals subject to federal regulation pursuant to the Toxic Substances Control Act ("TSCA"), 15 U.S.C. Sec. 2601, et seq. See 15 U.S.C. Sec. 2605(e).

The PCB regulations issued by the EPA pursuant to TSCA require marking and disposal of PCBs and PCB contaminated products in "concentrations of 50 parts per million (ppm) and above." 40 C.F.R. Sec. 761.1 et seq. (1990). Ordinarily there is no requirement that any action be taken when the concentration is below 50 ppm.

In March 1981, the EPA first learned that the Carter site had detectable levels of PCBs. At that time, Dan Schultz, a Michigan Department of Natural Resources ("MDNR") inspector found 560 ppm of PCB in an oil puddle on the property. By a grant agreement, MDNR inspectors act on the EPA's behalf. They inspect sites randomly selected from lists of possible PCB handlers or act in response to a citizen request. Plaintiffs do not question the validity of the inspection arrangement between EPA and MDNR, nor do they contest the adequacy of any MDNR actions. Schultz was not approved by the EPA under its agreement with MDNR, and had gone to the Carter site in response to an anonymous tip regarding transformers and oil stains on the property. He found no PCBs in two fluid samples taken from the old transformers. The EPA was notified of this inspection, but took no action against Carter at that time because it concluded that there was "insufficient evidence that any PCBs had been recently placed into the ground or that any regulated PCBs or PCB-contaminated equipment existed on-site."

On July 6, 1984, MDNR Inspector Margaret Fields conducted tests at the Carter site revealing the presence of PCBs. Ms. Fields was approved by the EPA pursuant to the EPA/MDNR agreement, and visited the Carter site at the request of the Detroit Fire Department after a fire on the premises. The 1984 tests revealed that, while fluid in one of the transformers on the property contained no PCBs, two soil samples near some scrapped transformers had PCB readings of 31 and 167 ppm, a sample from the main office driveway read 131 ppm, and soil from an alley just off the Carter site showed PCBs at 2,340 ppm. Daniel Patulski, then EPA's Project Officer for the State of Michigan, was notified of these findings. He thought there was insufficient evidence to charge Carter with a TSCA violation because the MDNR inspector's visual inspection of the Carter site confirmed Carter's records that Carter was then handling no oil with PCB concentrations exceeding 50 ppm. Patulski determined, however, that further monitoring of the Carter site was required to determine the sources of the PCBs and dates of contamination.

MDNR personnel again inspected the Carter site on May 14, 1986. They learned that Carter was handling PCB-contaminated equipment and found high levels of PCB-contaminated oil and equipment in concentrations as high as 90,000 ppm. As a result of its discovery, the EPA issued advisory notices to the local media and to neighbors living near the scrap yard, and initiated an emergency cleanup of the contaminated area. As a result, the plaintiffs learned, for the first time, of the PCB contamination.

Plaintiffs filed suit against the government under FTCA on May 2, 1988, alleging that the EPA was negligent in failing to warn them of the dangers associated with the Carter site and in failing to exercise reasonable care to prevent or at least decrease the risks from continued exposure to PCBs after March 1981.

In March of 1989, the government moved for summary judgment, in part, pursuant to 28 U.S.C. Sec. 2680(a), which shields the government from liability under FTCA for the conduct of its agents in exercising certain discretionary functions. The district court determined that the discretionary function exception to FTCA was indeed applicable on the facts of this case and, therefore, the court was without jurisdiction to entertain the plaintiffs' claims. The court said:

EPA's conduct involved a matter of choice. The conduct which plaintiffs attack is the EPA's failure to warn and protect them from the hazardous substances found on the Carter site. In TSCA, Congress gave the EPA broad discretion to determine whether and how to protect and warn the public.

And:

In this instance, Daniel Patulski weighed the evidence of contamination--the 1984 sample indicating extremely high levels of PCB off the Carter site--in conjunction with the lack of evidence to support an enforcement action--no evidence of PCB products on site--against the constraints of available resources. In exercising his judgment and discretion, Mr. Patulski determined that an enforcement action was not warranted in either 1981 or 1984. Mr. Patulski further determined the 1984 inspection of the Carter site warranted re-inspection, but that the most efficient use of EPA resources required that the re-inspection not take priority over inspections of waste-oil hauling companies. These administrative determinations are grounded in social, economic and political policy and are thus the type of decisions the discretionary function exception is designed to protect.

714 F.Supp. at 851-52.

The court, therefore, granted the government's motion for summary judgment. Plaintiffs appeal from that decision.

II.

We review dismissals on the basis of summary judgment de novo. Burkart v. Post-Browning, Inc., 859 F.2d 1245, 1249 (6th Cir.1988). Under Fed.R.Civ.P. 56(c), our duty is to determine whether, viewing the evidence in a light most favorable to plaintiffs, there is a genuine issue as to any material fact precluding the government from a judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986).

A.

The Federal Tort Claims Act is a broad waiver by Congress of the United States' immunity from actions based on the tortious conduct of federal employees. However, the government is not subject to tort liability for

[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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.

28 U.S.C. Sec. 2680(a). Interpretations of this "discretionary function" exception by the Supreme Court have not been entirely consistent, ¹ but the Court's most recent decision on section 2680(a) is helpfully clarifying and provides a workable means of applying it. Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).

Berkovitz involved an FTCA suit by the parents of a minor who contracted crippling polio after ingesting a defective dosage of Orimune, a polio vaccine. Plaintiffs alleged, first, that the government, through what was in 1979 a division of the National Institutes of Health, wrongfully licensed a drug manufacturer to produce the Orimune and, second, that the government, through the Food and Drug Administration, wrongfully approved public release of the lot of Orimune containing the dose the Berkovitz child ingested.

The district court denied the government's subsequent 28 U.S.C. Sec. 2680(a)-inspired motion to dismiss the case for lack of subject matter jurisdiction, but the Court of Appeals for the Third Circuit reversed. The Supreme Court then granted certiorari to determine "whether the discretionary function exception of the Federal Tort Claims Act ... bars a suit based on the Government's licensing of an oral polio vaccine and on its subsequent approval of the release of a specific lot of that vaccine to the public." Id. at 533, 108 S.Ct. at 1957. The Court held, "the Court of Appeals erred in holding that the discretionary function exception required the dismissal of petitioners' claims...