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JACH v. AMERICAN UNIVERSITY

February 20, 2003

LAURA JACH AND ROY JACH, INDIVIDUALLY AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS 4655 MASSACHUSETTS AVENUE, N.W. WASHINGTON, DC 20016, PLAINTIFFS,
V.
AMERICAN UNIVERSITY AND UNITED STATES OF AMERICA DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle, District Judge

MEMORANDUM OPINION

On August 8, 2002, plaintiffs Laura and Roy Jach, individually and on behalf of a proposed class of similarly situated residential property owners, brought suit against the United States ("the government") and The American University ("AU") asserting claims related to the contamination and cleanup of hazardous waste in their Washington, D.C. neighborhood of Spring Valley. (Compl. ¶ 1.) Plaintiffs allege that the government, by contaminating Spring Valley, has taken their property in violation of the Fifth Amendment, U.S. Const. amend. V. (Id. ¶¶ 68-72.) Plaintiffs have also brought suit against AU for its acts and omissions as the previous owner and neighbor of plaintiffs' property. (Id. ¶ 10) The action against AU is based solely on common law tort claims. (Id. ¶¶ 73-100.)

The government has moved under Fed.R.Civ.P. 12(b)(1) to dismiss plaintiffs' complaint on the grounds that the Comprehensive Environmental Response Compensation Liability Act of 1980 ("CERCLA"), as amended, 42 U.S.C. § 9613(h), divests the Court of subject matter jurisdiction over their claim. (Memorandum in Support of United States Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) ["U.S. Mem."] at 1.)*fn1 For the reasons discussed below, the government's motion to dismiss is granted. As a result, the Court has no jurisdiction over plaintiffs' claims against AU, and they will therefore be dismissed without prejudice.

BACKGROUND

This Court has addressed matters involving the government's use of AU's campus during World War I on several occasions. See, e.g., Loughlin v. United States, 230 F. Supp.2d 26 (D.D.C. 2002); Loughlin v. United States, 209 F. Supp.2d 165 (D.D.C. 2002); W.C. & A.N. Miller Companies v. United States, 963 F. Supp. 1231 (D.D.C. 1997). The historical backdrop to this case is the same and need only be summarized briefly here. 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. 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, projectiles, hand grenades and flaming liquid weapons. Loughlin, 230 F. Supp.2d at 29. At the end of the war, the AUES was dismantled and the government vacated the AU campus. (Compl. ¶ 25.) In 1920, AU and the Army agreed that the Army would build eight buildings for AU in lieu of its obligation to clear and restore the property before returning it to AU. (Id. ¶ 26.)

Over the ensuing decades, portions of the property were sold for residential development. (Id. ¶ 27.) In 1986, AU also undertook construction on the property it retained. At that time it contacted the Environmental Protection Agency ("EPA") and the Army for assistance in obtaining information to substantiate or refute reports of buried munitions on its property. (Id. ¶¶ 28-30.) Buried munitions were discovered during residential construction on property near AU in 1992, Loughlin, 230 F. Supp.2d at 31, and in January 1993. (Compl. ¶ 31.) In response, the Army initiated a response action pursuant to the Defense Environmental Restoration Program and CERCLA on January 5, 1993. (Id. ¶ 31.) Within the first month of its response, the Army removed 141 ordnance items from the World War I era. It subsequently discovered additional live munitions, spent ordnance and other debris and conducted soil sampling. (Id. ¶¶ 32-33.) In June 1995, the Army concluded its response action finding that there were "no risks posed by hazardous substances that exceed acceptable health levels for human health or the environment," and thus, no further action was needed. (Id. ¶ 33.)

In 1999, in response to recommendations from the District of Columbia, EPA conducted additional soil testing for the presence of arsenic and, along with the District of Columbia Department of Health ("DCH") and the Army Corps of Engineers ("Corps"), searched for additional munitions burial sites. (Id. ¶¶ 35-37; U.S. Mem. at 2.) In 2001, the Corps began an extensive plan to conduct soil sampling on each of the 1,155 residential properties in Spring Valley. (Compl. ¶¶ 42-43.) Where preliminary test results showed elevated arsenic levels, the Corps conducted additional sampling and advised homeowners that it would contact them to discuss future actions. (Id. ¶ 43.) The Corps determined that properties with soil samples yielding arsenic levels greater than the EPA's emergency response guideline typically required "some form of intervention or remediation." (Id. ¶ 47.) Properties with the greatest levels of arsenic were targeted by the Corps for Time Critical Removal Action ("TCRA"). (Id. ¶ 49.) As of July 2002, the Corps had identified seven such properties. (Id. ¶ 49.)

Pursuant to its responsibilities under CERCLA, 42 U.S.C. § 9616, the Corps is proceeding at this time with cleanup activities in Spring Valley, including removal actions and the selection of a final remedy. (U.S. Mem. at 3.) The Army's long-term remedial response will be outlined in a Remedial Investigation/Feasibility Study (RI/FS) that will be subject to public comment before it is finalized, as required by CERCLA, 42 U.S.C. § 9617. (Id.; Compl. ¶ 50.) At that point, a final remedy, also subject to public comment, will be selected. (U.S. Mem. at 3.)

Plaintiffs argue that their activities in their house, yard and neighborhood have been impacted as a result of the government's World War I activity in Spring Valley. (Compl. ¶ 67.) In addition, they claim that the value of their property has been diminished because they are required to disclose the arsenic contamination on their property and in their neighborhood to potential buyers. (Id.) Thus, plaintiffs allege that the government's contamination of their property and their neighborhood constitutes an unconstitutional taking of private property. (Id. ¶ 72.) The Complaint also contains state tort claims for failure to warn, private and public nuisance, trespass, and strict liability against AU. (Id. ¶¶ 73-100.)

Plaintiffs seek to bring this suit as a class action pursuant to Fed.R.Civ.P. 23 on behalf of themselves and all others similarly situated members of a proposed class consisting of owners of residential property in Spring Valley. (Id. ¶ 12.) They seek the implementation of a Property Value Protection Plan ("PVPP") as a remedy. The PVPP would require defendants to: (1) prepare with regularity information packets about contamination and cleanup efforts in Spring Valley for distribution to prospective buyers; (2) designate an information officer to handle all inquiries from sellers, prospective buyers and realtors; (3) appraise all Spring Valley properties; and (4) purchase Spring Valley properties where a seller's best efforts to sell fail to yield an offer at or exceeding the appraised value. (Id. at 27.)

The government has moved to dismiss plaintiffs' claim for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). The government argues that it is immune from suit because "Congress specifically limited the waiver of immunity under CERCLA to prevent lawsuits . . . which second-guess and delay the completion of a cleanup." (U.S. Mem at 2.)

LEGAL ANALYSIS

I. Government Immunity under CERCLA

CERCLA was enacted to ensure the efficient and expeditious cleanup of sites contaminated with hazardous wastes and other pollutants. Oil, Chemical & Atomic Workers International Union (OCAW) v. Richardson, 62 F. Supp.2d 1, 3-4 (D.D.C. 1999), aff'd, 214 F.3d 1379 (D.C. Cir. 2000). The cleanup process is divided into two categories: short term "removal" actions (to study and clean up contamination) and permanent or long term ...


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