ELR Citation: ELR 21085
No(s). 5:94-CV-059-C (N.D. Tex. Feb 24, 1995)

The court holds that the U.S. Air Force is not liable under the Federal Tort Claims Act (FTCA) and Texas law for landowners' alleged commercial and residential property damages caused by past operations at the Reese Air Force Base in Lubbock County, Texas, that released trichloroethylene (TCE) into groundwater. In 1983, the Air Force began an environmental assessment of the base as part of the U.S. Department of Defense's "installation restoration program" (IRP). In July 1990, the landowners purchased a greenhouse business located adjacent to the base. Even though the sellers knew or should have known that some of the groundwater wells on or adjacent to the property had been sampled by the government and that the property was part of an ongoing examination for TCE contamination, they did not reveal this information to the landowners during negotiations. In 1992, even before the Air Force detected any contamination on the landowners' residential properties, the Air Force connected the residences to a public water supply system through the base. In 1993, after the Air Force detected TCE contamination in wells supplying water to the landowners' greenhouse property, the Air Force installed a filtration system for these wells that removed TCE from that property's water supply.

After making numerous findings of fact relating to the landowners alleged property damages, the court addresses whether the Air Force is liable for the TCE contamination under the FTCA, which requires the court to apply Texas law. The court first holds that the Air Force was not negligent under Texas law, because Air Force employees at Reese Air Force Base did not breach any duty of care to protect plaintiffs from reasonably foreseeable harm. Because of the travel time necessary for contaminants to reach the landowners' properties, only waste disposal practices occurring at the base before the mid-1970s are relevant for the negligence inquiry. Given the state of knowledge and the standard of industry practice between the 1940s and the 1970s, Air Force employees had no reason to know that their waste disposal or maintenance activities could lead to the landowners' damages. The Air Force was not negligent in investigating and moniitoring the groundwater supply, and it was not negligent in failing to warn the public of the TCE findings. The court holds that the FTCA's discretionary function exception prohibits the landowners from challenging Air Force decisions regarding the investigation and remediation of environmental contamination at the base and decisions regarding public notification of the results of the investigation. The test for applying the exception requires that the challenged conduct must involve an element of judgment or choice, and that the judgment or choice must be based on considerations of public policy. The court finds that the landowners failed to plead or produce any evidence of negligence in connection with the adoption of the IRP for the base that would make the exception inapplicable. To the extent the IRP provides any specific mandates, the landowners failed to plead or prove that base officials either failed to comply with or violated the IRP's directives. The court also finds that the landowners failed to produce any evidence to overcome the presumption that base officials were grounded in policy when they made decisions about the investigation, monitoring, and notifying the public about potential contamination.

The court holds that it lacks jurisdiction over the landowners' nuisance or trespass claims to the extent they seek to impose liability against the government through those claims without proving negligence. The FTCA does not waive the sovereign immunity of the federal government for strict liability claims, and the landowners cannot maintain a nuisance or trespass claim under the Act without proving negligence as part of that claim. The court next holds that the government was not negligent per se because the government did not violate any statute applicable to the government employees that was designed to create a standard of care to protect the landowners from the type of injuries they allegedly suffered. The court notes that neither the Comprehensive Environmental Response, Compensation, and Liability Act nor the Resource Conservation and Recovery Act defines an applicable standard of conduct. In addition, no Texas courts have specifically addressed whether the Texas Water Code defines a standard of conduct suitable for the application of negligence per se, but the court holds that Texas courts would find that the Code fails to define such a standard. The court further holds that even if negligence per se theories applied, there has been no proof that such violations caused any of the damages the landowners' alleged. The court holds that the landowners have not met the requirements for the application of res ipsa loquitur under Texas law, because they have not demonstrated that groundwater contamination is the kind of event which would not ordinarily occur in the absence of negligence. Finally, the court holds that the landowners' own negligence is responsible for their failure to detect the presence of the TCE contamination in close proximity to their greenhouse property before purchasing the land. They acted unreasonably in seeking a cheap Phase I environmental assessment, when a proper and complete assessment would have disclosed the true extent of the known environmental contamination.

Counsel for Plaintiffs
Mark T. Mitchell, Stephen C. Dickman
Clark, Thomas & Winter
Texas Commerce Bank Bldg.
700 Lavaca St., 12th Fl., Austin TX 78767
(512) 472-8800

Counsel for Defendant
Adam Bain
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000