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C. Myers, Guardian Ad Litem v. United States of America

July 15, 2011

C. MYERS, GUARDIAN AD LITEM; L.M., A MINOR, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Southern District of California D.C. No. 3:02-cv-01349- BEN-AJB Roger T. Benitez, District Judge, Presiding

The opinion of the court was delivered by: Bennett, District Judge

FOR PUBLICATION

OPINION

Argued and Submitted June 10, 2010-Pasadena, California

Before: Alex Kozinski, Chief Judge, Johnnie B. Rawlinson, Circuit Judge, and Mark W. Bennett, District Judge.*fn1

Opinion by Judge Bennett; Partial Concurrence and Partial Dissent by Judge Rawlinson

OPINION

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 Pendelton 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,*fn2 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 Pendelton 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.*fn3 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

World Health Organization, Environmental Health Criteria 182: Thallium 204-05 (1996). Thallium is designated a "toxic pollutant" pursuant to § 307(a)(1) of the Clean Water Act, 40 C.F.R. § 401.15; 33 U.S.C. § 1317(a), and is, therefore, designated a CERCLA "hazardous substance" under 42 U.S.C. § 9601(14). Interestingly, Wikipedia notes, "Because of its use for murder, thallium has gained the nicknames 'The Poisoner's Poison' and 'Inheritance Powder' (alongside arsenic)." http://en.wikipedia .org/wiki/Thallium. It is not surprising, therefore, that thallium has been the weapon of choice for various fictional murderers. See, e.g., Agatha Christie, The Pale Horse (1961); Nigel Williams, The Wimbledon Poisoner (1990); CSI: NY, "Page Turner" (first aired Oct. 1, 2008).

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 Pendelton 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, nor did anyone else from the Navy. Residents in the nearby Wire Mountain Family Housing area testified that, at times during the remediation project in 1999, visible clouds of dust blew from the landfill. The district court found that "[a]ny visible dust was likely from uncontaminated soil."

Myers's house in the family housing area of Camp Pendelton was adjacent to the Box Canyon Landfill. Indeed, the fence line for and access road to the landfill were only about 50 feet from her backyard, where Myers often played. The landfill was also only about 200 feet from an elementary school, where Myers played and later attended school. Soon after the dumping of contaminated soil into the adjacent landfill, Myers became ill. She suffered, and she continues to suffer, from gastrointestinal distress, peripheral neuropathy (a kind of nerve damage), cognitive deficits, and alopecia (loss of body hair), all of which are known side-effects of exposure to thallium.

Some analyses of Myers's urine in March 2000 indicated concentrations of thallium well in excess of (as much as ten times) those expected in the urine of persons who had not been exposed to thallium. Subsequent tests purportedly showed no concentrations of thallium in excess of those expected in a non-exposed person. The raw data for those later tests was destroyed after this litigation commenced, however, so that there is no way to determine the reliability of those tests. The district court described the evidence about whether Myers's urine samples revealed normal thallium levels for humans as "mixed." District Court Decision at 8. The district court found that, even if one assumed that exposure to thallium caused Myers's medical condition, it was not obvious how or when she was exposed to the toxic metal.

The Navy or its contractors collected post-project samples in 2000, consisting of over 100 site soil samples, 30 wipe or "swipe" (dust) samples, ten bulk samples, and even hair samples from Myers's dog. Consistent with the district court's findings, the Navy asserts that only one of these samples, taken from the elementary school, showed thallium, but the level shown was actually below the naturally-occurring background level. In contrast, Myers asserts that these samples were taken months after the end of the OU-3 project and after an intervening winter of wind and rain. She also contends that, contrary to the Navy's assertion, while the final report of sampling showed results of less than one microgram of thallium in some of the samples (identified as a "non-detect"), the raw data actually indicated results that exceeded one microgram, the detection limit used for the tests, so that they should have been construed as "positives." Myers also contends that her expert's review of the raw data and actual test results indicated that eight wipe or "swipe" samples from air conditioning ducts in Myers's house and other adjacent houses were positive for thallium.

B. Procedural Background

On July 10, 2002, Myers's guardian ad litem filed suit pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., against the United States, as the appropriate party in a FTCA case for claims against the Navy.*fn4 Myers's claims were for negligence, nuisance, trespass, strict liability for ultra-hazardous activity, and battery. The trial judge trifurcated the bench trial into "breach of duty," "actual and proximate causation," and "damages" phases.

During the first phase of the trial, Myers presented evidence in support of her allegations that the Navy breached its duty of care in the following ways: (1) the Navy violated its own established policies set forth in the Manual by failing to have a CIH review the HASP for the Camp Pendleton project before the work of disposing of contaminated soils in the landfill began; and (2) the Navy's designated QAO acted negligently by failing to oversee the air (dust) monitoring plan carried out by IT/OHM. Post-trial briefs were submitted in May 2006. The case then languished for the next three years.

When the district court finally entered its Decision with Findings of Fact and Conclusions of Law (Decision) on the first phase of the bench trial, it offered no explanation for the long delay. The Decision did, however, state that the court found "that the Government did act reasonably," leading the court to find in favor of the Navy and against the plaintiff. In reaching this conclusion, however, the district court relied, in part, on the determination of a "causation" issue-whether Myers was exposed to thallium from the OU-3 project, a question on which Myers had not been fully heard-in what was supposed to be the "breach of duty" phase of the trial. The Decision also stated that, "[m]oreover, Defendant's actions fall within the discretionary function exception." This ruling was a reversal, without explanation, of the district court's denial of the Navy's motion to dismiss, which had raised the "discretionary function" exception as a bar to Myers's suit. The district court's Decision on phase one of the bench trial obviated the need for phases two and three.

This appeal followed.

II. LEGAL ANALYSIS

This appeal presents two primary issues: (1) Did the district court commit reversible error in finding that Myers's claims were barred by the "discretionary function" exception? and

(2) Did the district court commit reversible error in finding that the United States acted "reasonably" in fulfilling its duty to ensure that IT/OHM used proper safety ...


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