Loughlin v. U.S., CIV.A. 02-152(ESH).

Citation230 F.Supp.2d 26
Decision Date19 November 2002
Docket NumberNo. CIV.A. 02-152(ESH).,CIV.A. 02-152(ESH).
PartiesThomas P. LOUGHLIN, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
CourtUnited States District Courts. United States District Court (Columbia)

Patrick Michael Regan, Regan, Halperin & Long, P.L.L.C., Washington, DC, for Plaintiffs.

Thomas M. Ray, Joel E. Wilson, U.S. Attorney's Office, Mitchell E. Zamoff, Hogan & Hartson, L.L.P., Kirby D. Behre, Paul, Hastings, Janofsky & Walker, L.L.P., Washington, DC, for Defendants.

MEMORANDUM OPINION

HUVELLE, District Judge.

The Loughlins have brought suit against the United States ("government"), American University ("American" or "AU"), and Glenbrook Limited Partnership, Lawrence N. Brandt, Inc., Lawrence N. Brandt, and Robert Brandt [hereinafter referred to collectively as "Glenbrook-Brandt"] because of the presence of munitions, highly toxic chemicals, and chemical warfare agents on their residence at 4825 Glenbrook Road.1 Glenbrook-Brandt has filed cross-claims for negligence against the United States seeking compensation for property damage and indemnification for any sums Glenbrook-Brandt may have to pay plaintiffs.2 This Memorandum Opinion addresses only the claims and cross-claims against the government and the Loughlins' claims against Glenbrook-Brandt. The United States has moved to dismiss the Loughlins' claims for lack of subject matter jurisdiction under the Federal Tort Claims Act ("FTCA"), and for summary judgment based on the Loughlins' assumption of the risk. The United States has also moved to dismiss the Glenbrook-Brandt cross-claims for lack of subject matter jurisdiction under the FTCA. With respect to the FTCA actions, defendant United States asserts that this Court lacks subject matter jurisdiction because: (1) the claims are barred by the statute of limitations provisions of the FTCA, see 28 U.S.C. §§ 1346(b), 2401(b), 2675; (2) there is no analogous private liability sufficient to establish government liability for the alleged negligence, see 28 U.S.C. § 2674; and (3) the claims are barred by the discretionary function exception to the FTCA, see 28 U.S.C. § 2680(a).3 Glenbrook-Brandt has moved for summary judgment with respect to the Loughlins' failure to warn claim, arguing that plaintiffs are barred from bringing suit because Glenbrook-Brandt made full disclosure.4 Although the Court reserves judgment on the discretionary function argument until the issue is fully briefed and argued by all parties (see supra note 3), it concludes that the other arguments of the government must be rejected, and that Glenbrook-Brandt's motion for summary judgment should be denied.

BACKGROUND

In April 1917, in order to support the war effort against Germany, AU offered the United States the use of its 92-acre campus in what is now known as the Spring Valley neighborhood of Northwest, Washington, D.C. The government accepted AU's offer and established the American University Experiment Station (AUES) on the property. The AUES was the site of a massive training, research and testing ground for conventional and chemical warfare techniques. (Loughlin Compl. ["Compl."] ¶ 15.) The Army conducted projects and field tests related to the development, testing and manufacture of gases, toxic and incendiary munitions, smoke mixtures, and signal flares. These activities were conducted using gas shells, smoke clouds, mortars and projectiles hand grenades and flaming liquid weapons. (Id. ¶ 15.)

In approximately 1920, AU voted to release the government from its obligation to clear and restore the property before it was returned to AU. In exchange, the government was to build eight buildings for AU. (Id. ¶ 18.) (See Memorandum of Agreement between U.S. and American University, Memorandum in Support of Defendant United States' Motion to Dismiss Plaintiff's Complaint, or In The Alternative, for Summary Judgment ["U.S. Def.'s Mem."] Ex. 5.)5

In addition to using AU for military efforts, the United States Department of Agriculture ("USDA") operated a laboratory on the campus from 1919 to 1945 to develop pesticides and herbicides. (January 13, 1994 Memorandum from Lawrence Richardson to Karen Solari, Memorandum in Support of Glenbrook-Brandt Defendants' Motion for Summary Judgment ["Glenbrook-Brandt Defs.' Mem."] Ex. 3.)

Prompted by the discovery of a 1921 article in The American University Courier indicating that the Army had buried munitions on or near the campus during World War I and by the University's plan to construct a new athletic complex, AU initiated in 1986 an extensive literature search and conducted personal interviews in an effort to obtain information substantiating or refuting the report of buried munitions on AU property. No such information was uncovered. (Defendant American University's Response to The United States of America's Motion to Dismiss, or In The Alternative, for Summary Judgment ["AU Def.'s Resp."] Ex. 4.) AU also contacted the Army Corps of Engineers ("Corps") to inquire about the reports and for assistance as it began construction of the new athletic facility. (U.S. Def.'s Mem. Ex. 7.) In response, the Corps conducted a document search at the U.S. Army Military History Institute and concluded:

There is no official evidence of any such burial at AU. Official correspondence from the period strongly suggests that all munitions were removed to Edgewood Arsenal .... If any materials were buried, they would probably have been small quantities of laboratory or experimental materials. All sources we found were inconsistent with the notion of substantial quantities of any munitions or the components for munitions existing at AU.

(AU Def.'s Resp. Ex. 10.) The Corps' report questioned the credibility and accuracy of the Courier articles, but also noted "[w]e could not disprove the burial of some materials on or near Camp American University." (Id.) As part of this investigation, AU and representatives of the Army reviewed a 1918 aerial photograph of the AUES that clearly indicated the presence of a substantial bomb pit directly on or near the 4825 Property. (Compl.¶ 24.) However, the Corps' onsight survey of the construction site did not produce evidence of any suspicious items. (AU Def.'s Resp. Ex. 8.) Nonetheless, the Corps remained on site to supervise the excavation and caisson drilling phase of the construction. (Id.)

Plaintiffs assert in their complaint that in 1986, the Environmental Protection Agency ("EPA") also conducted a study for the Corps and concluded that the 4825 Property contained a probable burial ground for dangerous munitions and highly toxic materials. (Compl.¶ 23.) This allegation is disputed by the government. (Defendant United States of America's Statement of Material Facts to Which There is No Genuine Dispute ["U.S. Def.'s Stat."] ¶ 18.)

In 1990, Glenbrook-Brandt purchased from AU a parcel of land adjoining the AU campus and it began construction of two residential homes two years later. Construction was halted twice in May 1992 after Glenbrook-Brandt's workers were overcome by strong odors and suffered eye and lung pains requiring emergency hospital care. (Compl.¶ 31.) The construction also uncovered old laboratory equipment, possible chemical contaminants, broken jars, and a 55-gallon drum. (Id.) Glenbrook-Brandt notified AU of these developments and requested that AU investigate. AU retained Environmental Management Systems ("EMS"), an industrial hygiene consulting firm, to investigate the incident. (U.S. Def.'s Stat. ¶¶ 23-24.) The EMS investigation began on May 8, 1992. (Id. ¶ 24.) The first tests performed by EMS analyzed soil for pesticides and metals. (February 18, 1999 Letter, U.S. Def.'s Mem. Ex 8.) From these tests, "EMS concluded that there were no hazardous, volatile or controlled substances at the site." (Id.) EMS's results, forwarded to Brandt by AU, found that "[soil] samples are well within the EPA's criteria for acceptable levels for the materials noted. The dirt is acceptable for dumping to any area and will not present a health or environmental hazard." (May 20, 1992 Letter, Glenbrook-Brandt Defs.' Mem. Ex. 5.) The second set of tests performed by EMS identified the presence of the herbicide Silvex in the soil. EMS's report on these tests explained that Silvex is very irritating to the eyes and senses, but is not a hazardous substance. Specifically, EMS concluded that "[a]ccording to the EPA, silvex (sic) contaminated soil should not be disposed of near waterways, streams, wetlands or where crops are to be planted .... due to the acidic nature of the substance .... [which] could be toxic to fish. However, the substance does not have a pollution potential to the food chain." (June 4, 1992 Letter, U.S. Def's. Mem. Ex. 10.) Later that summer Glenbrook-Brandt removed four loads of the Silvex-contaminated soil from the 4825 property and proceeded with construction. (Compl. ¶ 35; February 8, 1999 Letter, U.S. Def.'s Mem. Ex. 8.)

In January 1993, the Corps initiated a remedial investigation for buried ordnance and contamination in Spring Valley which was referred to as Operation Safe Removal Formerly Used Defense Site ("OSR FUDS"). (U.S. Def.'s Mem. to Dismiss Cross-Cl. ¶ 28.) The investigation was triggered by the discovery of a munitions bunker approximately one mile away from the 4825 property.6

In January 1994, the Corps contacted Glenbrook-Brandt to request access to the properties at 4825 and 4835 Glenbrook to sample the soil. The request letter stated, "the soil in your area is not known to pose any danger to the residents. Soil sampling is to be conducted solely to provide an added assurance to the community and to assist us in completing a thorough investigation of Spring Valley." (January 12, 1994 Letter, Glenbrook-Brandt Defs.' Mem. Ex. 7.) Glenbrook-Brandt consented. (January 26, 1994 Consent of Property Owner, Glenbrook-Brandt Defs.' Mem. Ex. 8.)7

In February 1994 the Loughlins tendered a purchase offer...

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