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WELLS v. UNITED STATES

February 2, 1987

Ella Mae Wells, et al., Plaintiffs,
v.
United States of America, Defendant



The opinion of the court was delivered by: PARKER

 Barrington D. Parker, Senior District Judge:

 This civil proceeding is brought against the United States under the Federal Tort Claims Act ("FTCA" or "Act"), 28 U.S.C. §§ 1346(b), 2671-2680 (1982), by 571 persons residing in the Dallas, Texas area. Plaintiffs seek monetary recovery for physical and psychological harms and property damage which they and their minor children allegedly suffered as a direct and proximate result of the negligent acts and omissions of the Environmental Protection Agency ("EPA") *fn1" in monitoring, evaluating, regulating and communicating knowledge of public health risks and lead pollution hazards in their neighborhoods.

 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. *fn2"

 BACKGROUND

 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, *fn3" 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.

 ANALYSIS

 A. Liability Under ...


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