In Count I, plaintiffs allege that, at all relevant times, EPA knew that toxic lead pollution existed and that the residents of the Dallas area were exposed to lead pollution risks, yet the government negligently failed to correct or require those responsible for the contamination to correct the problem. Complaint para. 9(d). Plaintiffs further contend that EPA was negligent in failing to adequately warn of the pollution hazards. Complaint paras. 9(a), (d), (e). Count II charges EPA with having violated its statutory mandate as embodied in the Clean Air Act, 42 U.S.C. §§ 7401 et seq. ("CAA"). Complaint para. 10. Specifically, plaintiffs allege that EPA failed to order the State of Texas to submit a plan for the "implementation, maintenance, and enforcement" in the Dallas area of primary and secondary air quality standards as required by section 110 of the CAA, 42 U.S.C. § 7410.
The government has moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) (lack of subject matter jurisdiction) and Rule 12(b)(6) (failure to state a claim upon which relief can be granted), relying upon two primary exceptions to the FTCA. First, the government argues that no claim may be asserted for what it maintains was no more than a "failure to perform a discretionary function or duty. . .," citing 28 U.S.C. § 2680(a). Second, the government contends that it is immunized against liability for either intentional or negligent misrepresentation under 28 U.S.C. § 2680(h). In addition, the government points out that it is subject to liability only in the same manner and to the same extent as a private person, citing 28 U.S.C. §§ 1346(b) and 2674, and that because it was engaging in a uniquely governmental function with regard to the occurrences in question, it is effectively immune from liability under the Act.
Finally, the government asserts that since all the plaintiffs reside in the State of Texas and because the acts or omissions complained of relative to the pollution problem all occurred there, the complaint should be dismissed for improper venue under Fed. R. Civ. P. 12(b)(3). It thus argues that venue would be proper only in the Northern District of Texas, under 28 U.S.C. § 1402(b).
For the reasons set forth below, the Court determines that the plaintiffs' claims come within the discretionary function and misrepresentation exemptions of the FTCA, or alternatively, that under 28 U.S.C. § 2674, liability does not lie against the United States because a private person would not be so liable under similar circumstances. Accordingly, the Court does not reach the question of whether venue is proper in this district.
In support of their complaint, plaintiffs allege the following facts, which, for purposes of resolving the motion, will be accepted as true. See Papasan v. Allain, 478 U.S. 265, 106 S. Ct. 2932, 2943, 92 L. Ed. 2d 209 (1986); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Gregg v. Barrett, 248 U.S. App. D.C. 347, 771 F.2d 539, 547 (D.C. Cir. 1985). For some time EPA has monitored and evaluated the levels of lead pollution in areas surrounding the business operations of three lead manufacturing companies,
located near plaintiffs' neighborhoods.
Plaintiffs charge that while the EPA knew of high levels of lead pollution in their neighborhoods for many years, it nonetheless failed to remedy the situation. The charges are based in large part on oversight hearings conducted in 1983 by a subcommittee of the House Committee on Public Works and Transportation. Specifically, an EPA regional office conducted a study in the Dallas area, analyzing the levels of lead in soil samples and in the blood of school children. That study found that blood lead levels were elevated and determined, according to a proposed testing standard of 1000 parts per million, that soil samples also contained elevated concentrations of lead.
Following the conclusion of this study, the RSR Corporation, one of the three lead manufacturers in the area, made a written commitment to EPA to clear up the pollution problem by replacing soil found to have concentrations of lead over 1000 parts per million. Instead of accepting this offer, Dr. John Hernandez, the Deputy EPA Administrator stationed in Washington, D.C., decided that further study was needed to determine whether the 1000 parts per million standard used in the regional study was an appropriate testing level for lead. Dr. Hernandez felt that this level might be too stringent a standard on which to base a clean up program; however, there existed at the time evidence that the standard of 1000 parts per million was in fact quite lax. He also decided that 18 months of additional blood testing should be conducted.
Plaintiffs further charge that, following completion of the regional study, Washington EPA headquarters deleted information from a prepared official press statement in order to mislead the public as to the extent of the lead contamination. Specifically, EPA headquarters is alleged to have deleted all information indicating that elevated levels of lead had been found in the blood of children and in the soil around school playgrounds and day care centers. Plaintiffs also claim that Dr. Norman Dyer, Chief of the EPA Pesticides and Toxics Branch, was discouraged from keeping any notes or memoranda of his work conducted as part of the regional study. Dr. Dyer's superiors at EPA allegedly wished to conceal the extent of the danger from the public, especially that faced by the neighborhood children.
Plaintiffs also assert that EPA acted in violation of its statutory directive as embodied in the CAA, 42 U.S.C. §§ 7401 et seq., and in so doing directly and proximately caused their injuries. Specifically, they charge that EPA failed to carry out its duty to timely and properly approve or disapprove a state implementation plan for lead clean-up in the Dallas area, as required by 42 U.S.C. § 7410.
A. Liability Under the FTCA
In a tort claim brought against the United States, damages may be obtained
for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b). That section makes it quite clear that liability may be assessed against the United States only if a private person would be liable under comparable circumstances. Similarly, section 2674 provides that the United States shall be liable "in the same manner and to the same extent as a private individual under like circumstances. . . ." Therefore, the relevant question becomes whether the United States breached duties owed plaintiffs analogous to duties prescribed by local law for private actors. Art Metal -- U.S.A., Inc. v. United States, 244 U.S. App. D.C. 1, 753 F.2d 1151, 1157-59 (D.C. Cir. 1985). A violation of a duty imposed by federal statute, without more, does not give rise to a cause of action under the FTCA, id. at 1157, nor was it Congress' intention that the FTCA be used to "test the validity of or provide a remedy on account of . . . discretionary acts even though negligently performed and involving an abuse of discretion." H.R. Rep. No. 2245, 77th Cong., 2d Sess. 10; S. Rep. No. 1196, 77th Cong., 2d Sess. 7; H.R. Rep. No. 1287, 79th Cong., 1st Sess. 5-6; Hearings before House Com. on Judiciary on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess. 33, quoted in Dalehite v. United States, 346 U.S. 15, 29 n.21, 30, 97 L. Ed. 1427, 73 S. Ct. 956 (1953). Rather, it was Congress' purpose to provide a remedy for individuals harmed through the commission by government employees, acting within the scope of their employment, of acts most easily characterized as common-law torts.
346 U.S. at 27-28.
To a great extent, the requirement that liability would have to lie against a private person under like circumstances before it may lie against the United States merely establishes the foundation for the "discretionary function" exception codified at 28 U.S.C. § 2680(a). In other words, because only governmental entities engage in the kinds of regulatory activities that fall within the discretionary function exception, there could be no rule of private liability analogous to which a governmental actor could be sued. Similarly, because the discretionary function and the "misrepresentation" exceptions of section 2680(h) are rooted in common ground,
the "private liability" requirement may be seen as the predicate for exempting government misrepresentations from tort liability under the FTCA. Since the "private liability" requirement is, for purposes of analyzing the instant case, largely congruent with the two specific exceptions relied upon by the government, it will not for the most part be considered separately. Nevertheless, plaintiffs raise one argument as to the applicability of that requirement that must be dealt with briefly.
Plaintiffs argue that, because the government sought to regulate the pollution problem for their benefit, it may be held liable under the "Good Samaritan" doctrine set out in the Restatement (Second) of Torts §§ 323, 324A (1965). That doctrine provides that one who renders services for another or for a third person, in the absence of a duty otherwise to act, may be liable for his failure to exercise reasonable care, where such failure increases the risk of harm to the other party, where reliance is placed upon the actor's undertaking, or where the actor performs a duty owed by the other to the third person. See, e.g., Zabala Clemente v. United States, 567 F.2d 1140, 1145 (1st Cir. 1977), cert. denied, 435 U.S. 1006, 56 L. Ed. 2d 388, 98 S. Ct. 1876 (1978).
Bearing in mind that a motion to dismiss will be granted only if it is clear that plaintiff can adduce no set of facts that would warrant a grant of relief, see Gregg, 771 F.2d at 547, one could conceive of circumstances that might support plaintiffs' allegation that (1) EPA's failure to exercise reasonable care in carrying out its functions increased the risk of harm to them; that (2) they relied upon EPA to protect them from such harm, or that (3) in undertaking to control the pollution problem, EPA performed a duty that the Dallas area manufacturers owed persons residing near their facilities. Analysis of such claims would require not only the elaboration of a more complete factual record, but also a review of applicable Texas law. However, the Court is spared that task because, even if plaintiffs could demonstrate the validity of any of the above propositions, their claims would still be barred by the discretionary function and misrepresentation exceptions to FTCA liability. Such a result is certainly not anomalous, for a contrary result would override the specific exemptions enumerated in the Act. See Zabala Clemente, 567 F.2d at 1145-46. And as pointed out, supra note 4, not all common-law torts, if committed by the government, give rise to liability. Hence, whether the United States could otherwise be held liable under the "Good Samaritan" doctrine is not controlling in the face of specific exemptions from liability.
B. The Discretionary Function Exception
As consistently noted, most recently in United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 808, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (1984) (" Varig Airlines "), "the [FTCA] did not waive the sovereign immunity of the United States in all respects,... Congress was careful to except from the Act's broad waiver of immunity several important classes of tort claims." One such exception, codified at 28 U.S.C. § 2680(a), provides that the Act does not embrace
any 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.