Petition for Writ of Certiorari — Wells v. United States

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88-653

US.

FILED

oct 17 188

PH F. SPANIOL, JR.

. IN THE seine CLERK

Supreme Court of the United States

OCTOBER TERM, 1988

ELLA MAE WELLS, ET AL.

Petitioners,

UNITED STATES OF AMERICA

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

FREDERICK M. BARON

COUNSEL OF RECORD

CHARLES S. SIEGEL

BARON & BUDD, P.C.

8333 Douglas Avenue

10th Floor

Dallas, Texas 75225

(214) 369-3605

QUESTION PRESENTED FOR REVIEW

Does evidence that conduct challenged under the Federal

Tort Claims Act turned on application of scientific standards

suffice to defeat a motion to dismiss on the pleadings on

discretionary function exception grounds?

‘i

LIST OF ALL PARTIES

ELLA MAE WELLS and SHELLEY WELLS, Individually

and As Next of Friend for FRANCINE WELLS; DAVID

WELLS: MICHAEL WELLS; MICHELLE WELLS; LENA

HAYES. Individually and Next of Friend for NATHAN

HAYES and KELVIN HAYES; KATHY HOWARD, Individu-

ally and as Next of Friend for GE-ROY HOWARD and

GERSHWIN HOWARD: OPHILIA GARNER, Individually

and Next of Friend for SHARONDA GARNER, TIMOTHY

GARNER and TYSON GARNER; CLARICE BATES,

Individually and Next of Friend for PAULA BATES, CHRIS

BATES, VALERIE BATES and SHANTAE BATES; DEB-

ORAH SEALES, Individually and as Next of Friend for

GERADETTE GILL; LIMMIE FREEMAN and GEORGIA

FREEMAN, Individually and as Next of Friends for DAR-

LENE FREEMAN, LYNELL FREEMAN and VALERIE

FREEMAN: LESTER FREEMAN; PATRICIA SPEARS,

Individually and as Next of Friend for ARIC DEMINGS,

PATARICK DEMINGS, LISA DEMINGS; BERNICE WASH-

INGTON. Individually and as Next of Friend for DEONZA

POLK. LEONARD WASHINGTON, WILLIAM D. POLK

and DEBRA POLK: HELEN HUNT, Individually and as

Next of Friend for TIFFANY HUNT, KEITH HUNT, ERIC

HUNT, JOSEPH HUNT and VINCENT HUNT; EMMA

BRYANT. Individually and as Next of Friend for CRAIG

CARPENTER, ANITHA WILLIAMS, SHARION WILLIAMS,

TAMMYE WILLIAMS and JAMES WILLIAMS; ANNIE

CHALMERS. Individually and as Next of Friend for BRUCE

CHALMERS. WENDALL CHALMERS, EMMETT CHAL-

MERS and VERONICA CHALMERS; CAROLYN TATUM,

Individually and as Next of Friend for BYRON TATUM,

CHATONYA TATUM and ERIC TATUM; SHERRY JONES,

Individually and as Next of Friend for CARWIN JONES,

UNAKA JONES and ZERICK JONES; JOHNNY COLEMAN

and PATRICIA COLEMAN, Individually and as Next of

Friends for ANTHONY SNOWDEN, MARY SNOWDEN.

KEESHA SNOWDEN and IRA SNOWDEN: BESSIE COLE-

MAN, Individually and as Next of Friend for JANETTA

PAGE; JOYCE HIGH, Individually and as Next of Friend for

HAROLD MAIDEN; BOBBY BROWN, Individually and as

Next of Friend for PUTOFIS BROWN, CARTIS BROWN,

TASHEMIA BROWN and KINNEY BROWN: DOROTHY

LINZY, Individually and as Next of Friend for LIRICCIE

STROYE and PERCY STROYE: ALICE KING, Individually

and as Next of Friend for MARVIN KING and MURVEL

KING; SHELIA SCRUGGS, Individually and as Next of

Friend for RODERICK SCRUGGS, GARY SCRUGGS.

and CRAIG SCRUGGS; KATHLEEN EPPS, Individually and

as Next of Friend for JOSHUA LEMONS; PAMELA KELLY,

Individually and as Next of Friend for ANISSA KELLY: IRIS-

TENE PATTON, Individually and as Next of Friend for AL-

LEN PATTON, DKWON PATTON, TYRON PATTON and

SHAKETA PATTON; DEVORAH HIGH, Individually and as

Next of friend for LAKECHIA HIGH and MICHAEL HIGH:

LINDA ELDER, Individually and as Next of Friend for

MICHELLE ELDER and MAKAU ELDER: CARRIE CHAT-

MAN, Individually and as Next of Friend for LASONYA

CHATMAN; LONNIE BROWN and CYNTHIA BROWN,

Individually and as Next of Friends for LONNIE EARL

BROWN, JR., CHEIRIE AMOUR LASHEA SMITH and

TRENA YVETTE SMITH: ALICE NEWMAN, Individually

and as Next of Friend for ROBERT NEWMAN and DER-

RICK NEWMAN; ANNIE VAUGHN, Individuaily and

as Next of Friend for ANNA VAUGHN and MILDRED

VAUGHN; ALMA SHAW, Individually and as Next of

Friend for SHARON SHAW, ANTHONY SHAW and DER-

RICK SHAW; DOLLY MAE THOMAS, Individually and

as Next of Friend for VERNON THOMAS, JR., YOLANDA

THOMAS; LULA MAE NEWMAN, Individually and as Next

of Friend for DENNIS NEWMAN: BERTHA BETHANY,

Individually and as Next of Friend for LOUIS HAMILTON,

LOLA HAMILTON, NED HAMILTON and SYLVESTER

BETHANY, JR.: WILFORD HAMILTON; LAVERNE

POSEY, Individually and as Next of Friend for RODNEY

BETHANY, VERNETTA BETHANY, CHARLOTTE BETH-

ANY, EVA POSEY, REGINALD POSEY and FALECIA

POSEY: FALENTHIA BETHANY; DON POSEY; IDA MAE

ROLLINS, Individually and as Next of Friend for TAMMIE

MOORE, WILLIE MOORE, LEROY MOORE and CODIE

BROADNAX; MARVIA POLK, Individually and as Next of

Friend for RODERICK POLK LOWERY; ETHEL MOORE,

Individually and as Next of Friend for CLARENCE MOORE;

TERESA MOORE, Individually and as Next of Friend for

ANTONIO MOORE; FRANCINE MOORE, Individually and

as Next of Friend for PATRICIA MOORE; STANFORD

MOORE: DORA JANE FULLER, Individually and as Next

of Friend for HORACE LANARD FULLER, HORACE LEE

FULLER and EDRICK PAUL FULLER; EMMA ADAMS, In-

dividually and as Next of Friend for KRISTIE ADAMS; JUAN-

ITA ALEXANDER, Individually and as Next of Friend for

STANLEY ALEXANDER; DIANE BETHANY, Individually

and as Next of Friend for CHRISTOPHER BETHANY and

DESMOND BETHANY: SARAH BLACK, Individually and

as Next of Friend for AFRICIA DEAN; CAROL BROWN,

Individually and as Next of Friend for KIMBERLY BROWN,

MELODY BROWN, and COREY BROWN; JEFFIE BROWN,

Individually and as Next of Friend for ENITA BROWN and

MARIE BROWN: MYRTLE CLEWIS, Individually and as

Next of Friend for ROSHANDA CLEWIS and SAMMIE JOE

CLEWIS: DIANE COLLINS, Individually and as Next of

Friend for JERRY COLLINS, CLEM COLLINS, SAVINIA

COLLINS and VERONICA COLLINS; JANICE CRAD-

DOCK, Individually and as Next of Friend for WILLIE

DOINE CRADDOCK and BERNARDUS LEE CRADDOCK:

EMMA ELLIOT, Individually and as Next of Friend for

LAWANDA GRANT, TISHA JACKSON and TERRY JACK-

SON: ELLEN FRAZIER, Individually and as Next of Friend

for TIMOTHY QUILLENS; KENNETH QUILLENS; ALICE

GARNER, Individually and as Next of Friend for DANNIE

NEAL, DONNIE NEAL and DERWOOD NEAL: ELIZA-

BETH GARNER, Individually and as Next of Friend for

JAQUAY GARNER; ORE LEE GIVENS, Individually

and as Next of Friend for PHILLIP GIVENS, LAKISHA

GIVENS and DALE GIVENS; ANNETTE CONNER HALL,

Individually and as Next of Friend for SHARONDA HALL:

JAMES HARRIS and GRACIE HARRIS, Individually and

as Next of Friends for SCHRONDA HARRIS and LARRY

HARRIS; MELANIE HARPER, Individually and as Next of

Friend for LANDRAY HARPER and LEAMON HARPER:

MARKUS HENDERSON and TIAJUANA HENDERSON,

Individually and as Next of Friends for NIKEYIA MEYER

SMITH and SHAJUANA SMITH; GANZETTA HICKMAN,

Individually and as Next of Friend for SHEILA MAE LA-

DELL, EDWARD LEE LADELL and PAUL HICKMAN,

JR.; JACQUELYN LYNN, Individually and as Next of

Friend for ANNA LYNN; LUCRETIA JACKSON, §Indiv-

idually and as Next of Friend for RODERICK JACKSON,

ALFRED JACKSON and VANEEKA NORRIS; CHARISSA

JONES, Individually and as Next of Friend for SAKINA

PETTY and GERMAINE PETTY: HERMAN JONES, Indiv-

idually and as Next of Friend for MARCUS JONES; VERN-

ETTA KIRKLIN, Individually and as Next of Friend for

LAMONT McCALL, JEFFERY KIRKLIN, JEROME KIRK-

LIN and JERROD KIRKLIN; EARLINE LANE and EARLY

B. LANE, Individually and as Next of Friends for TIMOTHY

LANE, ARETHA LANE, LASHUWN LANE and TONY

RAY JOHNSON; RUFUS JONES, Individually and as Next

of Friend for EYVETTE JONES: DOLORES LEWIS, Indiv-

idually and as Next of Friend for JAMES LEWIS II, LA-

TOURUS LEWIS and DAMON LEWIS ; RUBY LOCKETT,

Individually and as Next of Friend for KAREN LOCKETT,

KAMESHA LOCKETT and ARTHUR RAY LOCKETT:

JACQUELINE LOCKETT, Individually and as Next of

Friend for MARKEE LOCKETT; VIRGINIA LOCKETT,

Individually and as Next of Friend for DERRICK LOCKETT,

JIMMY LOCKETT and YOLANDA LOCKETT; BRENDA

MOORE, Individually and as Next of Friend for BRANDON

JERRELL MOORE and FAREEDAH RUTH MOORE;

EZELLA MORRIS, Individually and as Next of Friend for

TAMEKA MORRIS, MARC MORRIS and LATHOSHIA

MORRIS: KENNETH NEWMAN, Individually and as Next

of Friend for KENNETH NEWMAN, JR. and KENETRIA

NEWMAN: TORONIA NEWMAN, Individually and as

Next of Friend for CORY NEWMAN and MICHAEL NEW-

MAN: ADA L. PETTY, Individually and as Next of Friend

for PRENTICE JEROME PETTY; GINA PETTY, Individual-

ly and as Next of Friend for TAMBRA PETTY; JERUTHA

PRATT, Individually and as Next of Friend for DEBORAH

ANN ROGERS and OTIS DWAYNE ROGERS; BETTY

TUCKER, Individually and as Next of Friend for BRID-

GETTE HOGAN, RICHARD ROBERSON, KIMBERLY

ROBERSON and TRACY ROBERSON; RUBY MAE TURN-

ER, Individually and as Next of Friend for LARRY TURN-

ER: JANICE MARIE VICKERS, Individually and as Next

of Friend for SERNOTRA LANE, CHRISTOPHER LANE

and KIMBERLY VICKERS; MURIEL WILLIAMS, Indiv-

idually and as Next of Friend for SARAH WILLIAMS,

JESSE WILLIAMS and DAVID SANDERS; ROBERT

SANDERS, SR., Individually and as Next of Friend for

ROBERT SANDERS, JR., MANCELL SANDERS and

BERTCHELL SANDERS; CLARA SANDERS, Individually

and as Next of Friend for TABATHA SANDERS; BRENDA

SANDERS, Individually and as Next of Friend for KEITH

SANDERS: RETHA BELL WILSON, Individually and

as Next of Friend for TORRINO DANIELS, GABRIEL

STROYE, LORENZO STROYE, JANIE STROYE, JARROD

WILSON, JAMES STROYE, and SHANNON HENRY;

BRENDA CULPEPPER, Individually and as Next of Friend

for SHARITA CULPEPPER, NATHOSHIA CULPEPPER

and CORNELIUS CULPEPPER: HERBERT BLAIR and

vil

JOYCE BLAIR, Individually and as Next of Friends for

LA DERRICK BLAIR, BRYAN BLAIR, KEITH BLAIR

and JOY BLAIR; FRANKIE EDWARDS, Individually and

as Next of Friend for LAVONDA EDWARDS and LOREN-

ZO EDWARDS; JESSIE RAY EDWARDS: VALINDA

EDWARDS, Individually and as Next of Friend for REGIN-

ALD EDWARDS; MATTIE GARNER, Individually and as

Next of GOOCH; JOYCE NICKERSON, Individually and as

Next of Friend for BILINDA COLEMAN: RAMONA RAN-

DALL, Individually and as Next of Friend for BILL RAN-

DALL, SHANEEQUA RANDALL, DEMONACON RAN-

DALL and RICHARD RANDALL; SHERRIE SPEARMAN,

Individually and as Next of Friend for DERRICK SPEAR-

MAN; LILLY JANE WILSON, Individually and as Next of

Friend for ROBERT ANTHONY WILSON: EDNA RUTH

BELL, Individually and as Next of Friend for PRINCESS

BATES and CHRISTOPHER THOMAS; LAURA BROWN,

Individually and as Next of Friend for ANTHONY BROWN.

NEKEMIA BROWN and TEDRICK BROWN: JACQUELINE

BROWN, Individually and as Next of Friend for LAKE-

ITHYA BROWN; PEGGY BURRELL, Individually and as

Next of Friend for ANTHONY BROWN and MARTISHA

BROWN; ANGELIA GUTHRIE, Individually and as Next

of Friend for DEANDRIA GUTHRIE and DEDRICK GUTH-

RIE; MARILYN TIMMS, individually and as Next of Friend

for ADONNAS HARDAWAY, COREY HARDAWAY.

DENETRICE HARDAWAY and TABARI HARDAWAY:

LARDELL HEARD, Individually and as Next of Friend for

FAITH HEARD, MARY HEARD, and TIMOTHY HEARD:

ROBERT HEARD: RONALD HEARD: ETHEL JOHNSON,

Individually and as Next of Friend for KELVIN MAINE

and RENE MAINE; CAROLYN MULLINS, Individually

and as Next of Friend for JEFFREY MULLINS and LISA

MULLINS: JACQUELINE MULLINS: ANNIE YOUNG,

Individually and as Next of Friend for PAULA SEATON

and LAKESHIA YOUNG: DORIS WALLACE, Individually

Vili

and as Next of Friend for KIZZY SHERMAN and SHERRY

SHERMAN: ABBIE WILKINS, Individually and as Next

of Friend for KENNETH TATE, REGINALD TATE and

ADRIAN WILKENS; ANEDRA THOMAS, Individually and

as Next of Friend for RANDY THOMAS and TENIQUA

THOMAS: IDA MAE WEST, Individually and as Next of

Friend for BEVERLY WEST, ROBERT WEST and TERRY

WEST: KAREN YOUNG, Individually and as next of Friend

for ANTONIO YOUNG; CONNIE SPENCER, Individually

and as Next of Friend for TARINA SPENCER and TAMELA

SPENCER: FAYETTE GUILDER, Individually and as

Next of Friend for DEGUAYAN GULDER; JERROLD WAR-

REN, Individually and as Next of Friend for JERANDRIAN

WARREN: DORICE THOMAS, Individually and as Next of

Friend for BRODERICK THOMAS and MARGARET AD-

AMS and MACK ADAMS, Individually and as Next of Friend

for LADUNNIA ADAMS, are Petitioners in this Court and

were Appellants in the court below.

The United States of America is Respondent here and was

Appellee below.

TABLE OF CONTENTS

Page

Question Presented for Review....................... i

ssh ae ak dado ks eee eee ee il

I oe oy Occ oes ix

Tie ced nee Ue he one Sh a ee Xx

Es 8G ria ae a hs et) te xii

Statement of Jurisdiction ....................ceec. Xili

gsc sg oa ok ook AE eed ous XiVv

MN ED ook on vc oc aro unc sbecwinnndewn l

Reasons for Granting the Writ ...................... 4

THE DECISION BELOW CONFLICTS WITH

ESTABLISHED PRECEDENT REGULAT-

ING DISMISSAL AT THE PLEADING

A oo We tne a ena kan hee eae ek a ahs 4

A. The Discretionary Function Exception

Protects Only Public Policy Judgments ..... 4

B. Since there is a Possible Set of Facts that

will Support Petitioners’ Claims, the

Ruling Below isin Error................. 8

I re i to oe 10

Ieee ee es ep oe eee ae eke la

TABLE OF CITATIONS

Pages

CASES

Battlefield Builders, Inc. v. Swango, 743 F.2d 1060

i Tas. os ER a Oh ok ee ee ens 9

Berkovitz v. United States, UF) a fae

et UE Ie a once oR ee 6,7,8

Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101

(7th Cir. 1984), cert. denied, 470 U.S. 1054

CP en aad case re eee banshee or ea 9

Codley v. Gibson, 355 US. 41 C1957). ccc ican ceive, 8,9

Dalehite v. United States, 346 U.S. 15 (1953) .......... 4

Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974) . 6,7

Jenkins v. McKeithen, 395 U.S. 411 (1969) ............ 9

Loge v. United States, 662 F.2d 1268 (8th Cir.

1981), cert. denied, 456 U.S. 944 (1982)............ 9

United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct.

1556 10 1. 26 Be CI a a ee eres Fe sh 5

United States v. S.A. Empresa de Viacao Aerea Rio

Grandense ( Varig Airlines), U.S. 797 (1984) ....... 5,6

Wells v. United States, 655 F.Supp. 715 (D.D.C.

SUE cos ek Oe ee ee ae 3,9

TABLE OF CITATIONS (Continued)

Pages

STATUTES

ee ee BAS oy vo ok Pe eee A tw, 2

eee Pee ey. hy Sa ee ea ee 2

PPM Ts 0 ok he hea ee P

oe Sees, I ek bs kee xiv, 3

RULES

ne NR 2% oo Sonn aa eras 2

Pe, os oo ee ee ey la 3

OTHER AUTHORITIES

Hazardous Waste Contamination of Water Resources

(EPA Implementation of the Superfund Program

& Lead Pollution Problems in Dallas, Texas):

Hearings Before the Subcommittee on Investiga-

tion and Oversight of the House Comm. on Public

Works and Transportation, 98th Cong., Ist Sess.

NE ls rere eee eee

xii

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

District of Columbia Circuit is published at 851 F.2d 1417

(D.C. Cir. 1988). The opinion of the district court is publish-

ed at 655 F.supp. 715 (D.D.C. 1987).

xiii

STATEMENT OF JURISDICTION

The judgment and opinion of the court of appeals were

entered on July 19, 1988. This petition for certiorari was

filed within ninety (90) days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. §1254(1).

Xiv

STATUTES INVOLVED

1. 28U.S.C. §1346(b):

Subject to the provisions of chapter 171 of

this title, the district courts, together with

the United States District Court for the

District of the Canal Zone and the District

Court of the Virgin Islands, shall have exclu-

sive jurisdiction of civil actions on claims

against the United States, for money damages,

accruing on and after January 1, 1945, 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 circum-

stances 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.

2. 28US.C. §2680(a)

The provisions of this chapter and §1346(b)

of this title shall not apply to

(a) 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 regula-

tion be valid, or based upon

the exercise or performance or

the failure to exercise or

STATUTES INVOLVED (Continued)

perform a discretionary func-

tion or duty on the part of a

federal agency or an employee

of the Government, whether

or not the discretion involved

be abused.

STATEMENT OF THE CASE

As this action was dismissed before the development of

any factual record, the following allegations, taken from

Plaintiffs’ complaint and reflecting information known to

them, must be accepted as true.

Plaintiffs are residents of low-income neighborhoods in

West Dallas. For years, three lead companies operated smelt-

ers in the heart of these neighborhoods. The housing projects

in which Plaintiffs lived were downwind from the smelters:

one project was directly downwind from the largest lead

recycling plant in the world. These smelters were for decades

responsible for levels of lead emissions substantially in excess

of any level considered to be safe. As a consequence, Plain-

tiffs sustained staggering exposure to lead (primarily through

the air and soil) resulting in severe contamination. This

contamination is reflected in seriously elevated levels of lead

in a person’s bloodstream. Resultant brain damage and

developmental impairments have produced lifelong debilita-

ting effects.

Several years before these claims were filed, the Environ-

mental Protection Agency had undertaken a study of the

lead pollution problems in West Dallas housing projects

and was in possession of information indicating the scope

and magnitude of the hazard and the effects already being

documented. The unfortunate history of EPA’s callous

indifference to the health of those whose mission it is to

protect and whose safety it had undertaken to guard is best

detailed in Hazardous Waste Contamination of Water Re-

sources (EPA Implementation of the Superfund Program &

Lead Pollution Problems in Dallas, Texas); Hearings Before

the Subcommittee on Investigation and Oversight of the

House Comm. on Public Works and Transportation, 98th

Cong., Ist Sess. (1983). These hearings reveal that RSR

corporation, one of the three companies operating lead

smelters in Dallas, had made a commitment in writing to

“do whatever it took to alleviate the problem.” Statement

of Fran Phillips, EPA Deputy Regional Administrator,

at 310 (JA-122). Instead of accepting RSR’s cleanup com-

mitment, however, Dr. John Hernandez, EPA Deputy Ad-

ministrator, rejected the offer and ordered 18 months of

additional blood-level testing. Hearings, passim. There was

overwhelming evidence that the standard of 1000 parts per

million—the standard that Deputy Administrator Hernandez

felt needed more study and was too stringent to base a

cleanup program on—was in fact widely viewed as too lax.

Hearings at 323. The 18 months of additional study that

Dr. Hernandez called for did not answer the single question

it was ordered for. Hearings at 348, statement of Norman

Dyer, Ph.D, Chief, Pesticides and Toxics Branch, EPA.

Finally, all four of Dr. Hernandez’ subordinates from the

Dallas office testified that, in their opinion, his actions

were not “based upon anything other than his scientific

judgment.” Hearings at 339. Dr. Hernandez himself testi-

fied that his decisions turned on risk level and exposure

route data. /d. at 67.

Plaintiffs first filed administrative claims with the EPA

for damages, as required by the Federal Tort Claims Act,

28 U.S.C. §§1346, 2671 et seq. (1982); see 28 U.S.C.

§ 2675(a). It is disputed whether a small minority of Plain-

tiffs validly fulfilled the administrative claims procedure.

In any event, Plaintiffs’ claims were denied. Plaintiffs then

filed this action in the United States District Court for

the District of Columbia.

Asserting primary claims were approximately 370 children

with health and developmental problems attributed to lead

exposure. Many parents were also plaintiffs. The Government

moved to dismiss the claims under Fed.R.Civ.P. 12(b)(1)

for lack of subject matter jurisdiction, and Rule 12(b)(6)

for failure to state a claim upon which relief could be grant-

ed. It contended that the district court was without juris-

diction under the FTCA because two exceptions to the

general waiver of sovereign immunity, the “discretionary

function” exception and the misrepresentation exception,

28 U.S.C. §§2680(a) and (h), barred Plaintiffs’ claims:

the Rule 12(b)(6) pleading urged that Plaintiffs’ complaint

did not state a cause of action under controlling Texas

law. The district court granted dismissal on the grounds that

the discretionary function and misrepresentation exceptions

barred suit; it made no finding on whether Plaintiffs stated

a claim under Texas law. Wells v. United States, 655 F.Supp.

715, 719 (D.D.C. 1987).

The court of Appeals affirmed solely on the basis of the

discretionary function exception. Wells v. United States,

851 F.2d 1471, 1472 (D.C. Cir. 1988). This petition fol-

lowed.

—

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW CONFLICTS WITH

ESTABLISHED PRECEDENT REGULAT-

ING DISMISSAL AT THE PLEADING

STAGE

A. The Discretionary Function Exeption Protects

Only Public Policy Judgments

This Court has thrice considered the effect of the “discre-

tionary function exception” on suits against the United

States for tort damages. Each time, the Court has concluded

that only conduct that involves the formulation of public

policy—social, economic or political decisionmaking—is

insulated from judicial scrutiny.

In Dalehite v. United States, 346 U.S. 15 (1953), plaintiffs

charged the Government with negligence in various aspects

of a program of production and distribution of ammonium

nitrate fertilizer. In holding the claims barred, the Court

made clear that the challenged decision must reflect a deter-

mination involving policy. It wrote:

The discretionary function or duty that

cannot form a basis for suit under the Tort

Claims Act includes more than the initiation

of programs and activities. It also includes

determinations made by executives or admin-

istrators in establishing plans, specifications,

or schedules of operations. Where there is

room for policy judgment, there is discretion.

Id., 346 U.S. at 35-36 (emphasis added). Thus, while all

governmental officials have “‘discretion,” in the literal sense

of the word, to act one way or another, their choices are

protected only if policy judgments are involved.

The Court again considered the exemption in United

States v. S.A. Empresa de Viacao Aerea Rio Grandense

(Varig Airlines), 467 U.S. 797 (1984). In Varig, plaintiffs

sued for harms suffered when an airplane crashed because

of violations of FAA safety regulations. Plaintiffs challenged

the FAA’s decision to employ a spot check system of in-

specting aircraft for compliance with regulations.

The Court first held that the rank of the governmental

official involved is immaterial; it is rather the “nature of the

conduct” at issue that is important. /d., 467 U.S. at 813.

In other words, even a low-ranking subordiriate may make

decisions protected by the discretionary function exception.

Whatever the official’s status, however, his conduct is im-

mune from suit only if a policymaking determination is

involved. The Court continued:

This emphasis upon protection for regulatory

activities suggests an underlying basis for the

inclusion of an exception for discretionary

function in the Act: Congress wished to

prevent judicial ‘‘second guessing’ of legisla-

tive and adminstrative decisions grounded in

social, economic, and political policy through

the medium of an action in tort. By fash-

ioning an exception for discretionary govern-

mental functions, including regulatory activ-

ities, Congress took “steps to protect the

Government from liability that would serious-

ly handicap efficient government operations.”

United States v. Muniz, 374 U.S. 150, 163,

83 S.Ct. 1850, 1858, 10 L.Ed.2d 805, 815

(1963).

Id. at 674-75 (emphasis added). Dalehite and Varig thus

teach that governmental decisions “grounded in social,

economic, and political policy” are the decisions immune

from judicial scrutiny. The Court in Varig took pains to

clarify this assessment of the exception:

Here, the FAA has determined that a program

of ‘“‘spot-checking’” manufacturers’ comp-

liance with minimum safety standards best

accomodates the goal of air transportation

safety and the reality of finite agency re-

sources. Judicial intervention in such decision

making through private tort suits would

require the courts to “second-guess” the

political, social and economic judgments of

an agency exercising its regulatory function.

It was precisely this sort of judicial interven-

tion in policymaking that the discretionary

function exception was designed to prevent.

Id. at 678 (emphasis added).

Finally, in Berkovitz v. United States, U.S. .

108 S.Ct. 1954 (1988), this Court reviewed claims that the

Bureau of Biologics of the Food and Drug Administration

wrongfully approved release to the public of a contaminated

lot of polio vaccine. The principle was reiterated that “it

is the nature of the conduct, rather than the status of the

actor, that governs whether the discretionary function

exception applies.” 108 S.Ct. at 1958.

Most importantly, it is now clear from Berkovitz that

scientific decisions made by Government employees are

fully actionable. In the present case, we relied heavily in the

court below upon Griffin v. United States, 500 F.2d 1059

(3d Cir. 1974), for the proposition that scientific judgments,

unencumbered by policymaking, are entirely subject to tort

review. See 500 F.2d at 1066 (‘‘Where the conduct of Gov -

ernment employees in implementing agency regulations

requires only performance of scientific evaluation and not

the formulation of policy, we do not believe that the conduct

is immunized from judicial review as a ‘discretionary func-

tion’ ”). The Third Circuit’s opinion in Berkovitz was cited

by the Government in its brief to the effect that Griffin

was no longer good law and that its holding concerning

scientific decisions was wrong.

Berkovitz, however, makes plain that scientific decisions

are perfectly amenable to Tort Claims Act suits. In discussing

one of plaintiffs’ allegations in Berkovitz, the Court holds

that scientific choices are outside the exception:

In that event, the question turns on whether

the manner and method of determining com-

pliance with the safety standards at issue

involves agency judgment of the kind protect-

ed by the discretionary function exception.

Petitioners contend that the determination

involves the application of objective scientific

standards, see Brief for Petitioners 16-17,

whereas the Government asserts that the

determination incorporates considerable ‘‘pol-

icy judgment,” Brief for United States at 36.

In making these assertions the parties have

framed the issue appropriately: application

of the discretionary function exception to

the claim that the determination of com-

pliance was incorrect hinges on whether the

agency officials making that determination

permissibly exercise policy choice.

Id., 108 S.Ct. at 1954.

Ordinary scientific decisionmaking does not fall within

the discretionary fuction exception. In the instant case,

Plaintiffs/Appellants produced substantial evidence that

nothing but science was invoived in the decisions concerning

lead hazards cleanup and enforcement in Dallas. This evi-

dence was detailed in briefing in both lower courts and

includes. identification by the EPA Acting Administrator of

the epidemiological factors guiding his actions and the

admissions by four subordinates that his actions were based

on “nothing other than his scientific judgment.”

Particularly in the context of a motion to dismiss, Plain-

tiffs/appellants have shown sufficiently that the decisions

challenged are outside the discretionary function exception,

as the exception has recently been clarified in Berkovitz.

B. Since there is a Possible Set of Facts that will

Support Petitioners’ Ciaims, the Ruling Below

is in Error

In affirming the dismissal at the pleading stage of Peti-

tioners’ complaint, the court of appeals failed to follow this

Court’s established standard for dismissals under Rule 12.

This test was set out in seminal form in Conley v. Gibson,

355 U.S. 41 (1957):

{[I]n appraising the sufficiency of the com-

plaint we follow, of course, the accepted rule

that a complaint should not be dismissed for

failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no

set of facts in support of his claim which

would entitle him to relief.

Id., 355 U.S. at 45-46.

The only question on a motion to dismiss, therefore, is

whether in the light most favorable to plaintiff, and with

every doubt resolved in his behalf, the complaint states a

valid claim for relief. Jenkins v. McKeithen, 395 U.S. 411

(1969). It goes without saying that courts of appeals uni-

formly have hewn to this standard. E.g., Car Carriers, Inc.

v. Ford Motor Co., 745 F.2d 1101 (7th Cir. 1984), cert.

denied, 470 U.S. 1054 (1985); Battlefield Builders, Inc.

v. Swango, 743 F.2d 1060 (4th Cir. 1984); Loge v. United

States, 662 F.2d 1268 (8th Cir. 1981) cert. denied, 456

U.S. 944 (1982).

In this case, the court of appeals acknowledged that two

passages of testimony from public hearings showed that

scientific factors guided the decisions Petitioners challenged

as negligent. Wells, supra, 851 F.2d at 1477-78 n.5. The

court concluded, however, that this testimony should be

read in a context different from that advanced by Petitioners,

and therefore that Petitioners had erroneously attributed

any significance to the testimony. The Court also noted

other hearings testimony tending to show that economic,

social and political factors weighed in the challenged deci-

sions. [d. at 1477.

It should be self-evident that by conducting this analysis;

the court of appeals fatally violated the Conley and Jenkins

standard. A court cannot choose what context in which

to evaluate evidence; it must view that evidence in the light

most favorable to the plaintiff. Moreover, a court cannot

decide whether one piece of evidence is more important

than another piece, or more fully disposes of an issue. If

plaintiff presents some evidence to suggest a possible set of

facts, consistent with his complaint and actionable, then

dismissal is improper.

In this case, the court below acknowledgedly did not

view Petitioner’ evidence in the light most favorable to

them, and explicitly decided that the Government’s evidence

on the factors underlying Dr. Hernandez’s decision was

somehow more valid than Petitioners’ evidence. It should

not be necessary to point out that this is not the court’s

function; there was a clash in the evidence, and under Peti-

tioners’ evidence their claims were cognizable. Dismissal

was therefore incorrect.

WHEREFORE, PREMISES CONSIDERED, Petitioners

pray that a wnt of certiorari issue to review the decision

of the United States Court of Appeals for the District of

Columbia Circuit.

Respectfully submitted,

BARON & BUDD, P.C.

8333 Douglas Avenue

10th Floor

Dallas, Texas 75225

(214) 369-3605

FREDERICK M. BARON

Counsel of Record

- AND -

CHARLES S. SIEGEL

United States Court of Appeals

—FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 1987 Decided July 19, 1988

No. 87-5124

ELLA MAE WELLS, et al., APPELLANTS

UNITED STATES OF AMERICA, APPELLEE

Appeal from the United States District Court

for the District of Columbia

(Civil Action No. 85-03333)

Charles S. Siegel for appellants.

Gregory C. Sisk, Attorney, Department of Justice, with

whom Richard K. Willard, Assistant Attorney General,

Joseph E. diGenova, United States Attorney and Robert

S. Greenspan, Attorney, Department of Justice, were on

the brief for appellee.

Before: ROBINSON and EDWARDS, Circuit Judges, and

MACKINNON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

MACKINNON.

MACKINNON, Senior Circuit Judge: Plaintiffs, 189

families composed of 571 persons who reside in the

Dallas, Texas area, seek compensation for personal in-

iuries and property damage which they and their minor

children claim to have suffered due to alleged negligent

acts and omissions of the Environmental Protection

Agency (“EPA”). Plaintiffs claim that the EPA neg-

ligently regulated and communicated knowledge of public

health risks and lead pollution dangers in plaintiffs’

neighborhoods.! The district court granted the govern-

ment’s motion to dismiss, citing two exceptions to the

Federal Tort Claims Act (the “Act”), 28 U.S.C.

§§ 1846(b), 2671-2680, 2680(a) and 2680(h). Wells v.

United States of America, 655 F. Supp. 715 (D.D.C.

1987). We affirm the district court’s decision on the

basis of the exception in the Act for discretionary func-

tions and duties. 28 U.S.C. § 2680(a).

I. FACTUAL BACKGROUND

Plaintiffs allege that for many years the EPA has

continuously and gratuitously monitored and evaluated

lead pollution levels in their neighborhoods that surround

three lead smelters, RSR Corporation, Dixie Metals Cor-

poration and N.L. Industries. One of the housing proj-

ects in which plaintiffs live, is “directly downwind from

the largest lead recycling plant in the world.” Brief for

Appellants at 3. Plaintiffs contend that “[r]esultant

brain damage and developmental impairments [from lead

1The government contends that 95 of the 571 claims are

barred under § 2675(a) of the Federal Tort Claims Act be-

cause the claimants did not file the required administrative

claims with the EPA. Brief for Appellee at 6 n.5. 28 U.S.C.

§§ 1346(b), 2671-2680, 2675(a). The district court did not

address this issue. Wells, 665 F. Supp. at 717 n.2. We also

find it unnecessary to reach this issue.

ET A

pollution] have produced lifelong debilitating effects .. .”

id. at 4, and that the EPA negligently violated an alleged

legal duty to inform them of the risks and to adequately

and timely remedy the hazards or to so require.

Plaintiffs also claim that the EPA affirmatively misled

them as to the full extent of the lead pollution problem

in that after the regional study was completed, Wash-

ington EPA headquarters deleted information from a

press statement to mislead the public as to the extent

of the lead contamination; that the EPA deleted all in-

formation indicating that elevated lead levels had been

found in children’s blood and in the soil around day care

centers and school playgrounds; and that Dr. Norman

Dyer, Chief of the EPA Pesticides and Toxics Branch,

was discouraged from keeping any notes of his work on

the regional lead study.

The district court found plaintiffs’ claims barred by

the misrepresentation exception of the Act which provides:

The provisions of this chapter and section 1346(b)

of this title shall not apply to—

. (h) Any claim arising out of . . . misrepre-

sentation, deceit . . .

28 U.S.C. § 2680(h). Wells, 655 F.Supp. at 724. We

need not determine the applicability of this misrepre-

sentation exception, or whether the issue is preserved on

appeal, because we find that the discretionary function

exception applies and the government is immune from

suit. Also, because of the application of the discretionary

function exception, we need not determine whether the

government would be liable as a private person under

the good samaritan doctrine of Texas’ tort law.

Finally, plaintiffs cursorily assert that the EPA vio-

lated the Clean Air Act, 42 U.S.C. §§ 7401 et seq., by

failing to “require the submission by Texas of a ‘lead

implementation plan’ for the Dallas area.” Brief for

Appellants at 7. Although plaintiffs do refer to the

Clean Air Act claim in two sentences of their brief, id.,

they make no factual or legal arguments in support

thereof. Therefore we cannot address the issue.

Plaintiffs’ claims primarily concentrate on the allegedly

negligent decision of Dr. John Hernandez, the EPA

Deputy Administrator for the area, to conduct further

study while refusing to take immediate remedial action

or to accept an offer of one of the lead companies to clean

up the area. After an EPA regional office conducted a

study of lead in soil samples and school children’s blood,

RSR Gorporation made a written offer to EPA to replace

soil having lead concentrations of over 1000 parts per

million. Dr. Hernandez decided, however, that further

study was necessary in order to determine whether the

1000 parts per million standard was an appropriate lead

testing level for soil and did not accept the company’s

offer to clean up the area. In making the decision to

further study the problem, he was motivated by his con-

clusion that if he accepted the company’s offer he would

implicitly be establishing a precedent that might be too

stringent to be applied generally, even though there was

evidence that some hazards existed at that level. Dr. |

Hernandez decided that eighteen months of additional :

blood testing should be conducted. Wells, 655 F. Supp.

at 718. RSR Corporation subsequently voluntarily cleaned

up the area.

II. ANALYSIS

A. Applicable Standard

The district court granted the government’s motion

to dismiss the complaint for lack of subject matter juris-

diction and for failure to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(1), 12(b) (6).

In order to survive a motion to dismiss, “the complaint

must set forth sufficient information to suggest that there

exists some recognized legal theory upon which relief can

be granted.” Gregg v. Barrett, 771 F.2d 539, 547 (D.C.

= es

re a a ©

Cir. 1985), quoting District of Columbia v. Air Florida,

Inc., 750 F.2d 1077, 1081 (D.C. Cir. 1984). Plaintiffs

emphasize that they need only “adduce a set of facts”

supporting their legal claims in order to survive a mo-

tion to dismiss. Brief for Appellants at 1. See also id.

at 14; Reply Brief for Appellants at 13-15, 18-19. As-

suming all factual allegations are true, a court must

dismiss a complaint if the plaintiff fails to establish

a right to relief based on the facts alleged in the com-

plaint. Gregg, 771 F.2d at 547.

B. The Private Liability Requirement of the Tort

Claims Act

At the outset the government relies upon the private

liability requirement that derives from section 1346(b)

of Title 28. This provides that federal courts have juris-

diction over actions involving claims against the United

States for

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. § 1846(b). The Tort Claims Act further pro-

vides that the government shall be liable “in the same

manner and to the same extent as a private individual

under like circumstances.” 28 U.S.C. § 2674.

We reject the government’s argument that, as a thresh-

old matter, the Act does not apply when the government

is engaged in a “core governmental function.” Brief for

Appellee at 23. Very few decisions even mention the

Act’s private liability requirement and we have found

no decisions that rely solely on such requirement or any

“core governmental function” doctrine in holding the gov-

ernment immune from suit. See United States v. Muniz,

374 U.S. 150, 153 (1962) (“Whether a claim could be

made out would depend upon whether a private indi-

vidual under like circumstances would be liable under

state law .. .”); Rayonier, Inc. v. United States, 352

U.S. 315, 319 (1956) (“the test . . . is whether a private

person would be responsible for similar negligence under

the laws of the State where the acts occurred.”) ; Arvanis

v. Noslo Engineering Consultants, Inc., 739 F.2d 1287, |

1292 (7th Cir. 1984) (“In the absence of any persuasive

analogy with private conduct, we conclude that appellants

cannot maintain a Tort Claims action against the United |

States.”) ; Gelley v. Astra Pharmaceutical Products, Inc.,

466 F.Supp. 182, 185 (D.Minn. 1979) (“Regulatory ac-

tivity engaged in by FDA personnel simply has no coun-

terpart in private activity and thus cannot give rise

to liability . . .”), aff'd, 610 F.2d 558, 563 (8th Cir.

1979). Most cases simply quote the private liability re-

quirement of section 1346(b) and then proceed to rely

upon the Act’s discretionary function exception. See,

e.g., United States v. S.A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), 467 U.S. 797, 808. The

Supreme Court recently rejected the government’s core

governmental function argument in Berkovitz v. United

States, —— US. (1988). Justice Marshall, writing

for a unanimous Court, commented that the government’s

core governmental function argument “appears to repli-

cate precisely the position expressly rejected” in Indian

Towing Co. v. United States, 350 U.S. 61, 64-65 (1955),

and Rayonier, Inc. v. United States, 352 U.S. 315, 318-19

(1957). Berkovitz, No. 87-498, slip op. at 7 n.5 (June 13,

1988). Furthermore, as set forth in the margin, courts

have imposed liability on the United States in many sit-

uations in which the government was engaged in activ-

ities that have no analogy in the private sector.?

2? This court has “imposed liability upon the United States

for its performance of activities that are not usually per-

formed by private persons.” Canadian Transport Co. v.

United States, 663 F.2d 1081, 1090 (D.C. Cir. 1980). In

Canadian Transport, we held the government subject to suit

_ — os

The district court concluded that the private liability

requirement “merely establishes the foundation for” and

is “largely congruent with” the discretionary function ex-

ception to the Act, and therefore the court did not con-

sider the private liability requirement separately. 665

F. Supp. at 719. The government argues that the private

liability requirement is both “a logical prerequisite” to a

consideration of the Act’s exceptions and “an independent

basis upon which to affirm the district court’s dismissal

in this case.” Brief for Appellee at 15 n.9. However,

there are very few decisions that even discuss the private

liability requirement, see supra note 2, and we have found

in a case in which the Coast Guard refused to permit a Polish

vessel to enter a United States port with naval installations

on grounds of national security. Six years later in Red Lake

Band of Chippewa Indians v. United States, 800 F.2d 1187

(D.C. Cir. 1986), this court held that the government was

not protected from certain claims in a case in which an Indian

tribe sought compensation for property damage allegedly due

to the negligence of an FBI agent in ordering law enforcement

personnel to withdraw from a hostage situation on an Indian

reservation. See also Black v. Sheraton Corp. of America,

564 F.2d 531 (D.C. Cir. 1977) (former lobbyist’s action seek-

ing compensation for injuries allegedly sustained due to con-

cededly illegal eavesdropping by FBI is not barred under the

Federal Tort Claims Act). In Indian Towing Co. v. United

States, 350 U.S. 61 (1955), the Supreme Court held the

government liable under the Act in a suit for damages al-

legedly caused by the Coast Guard’s negligent operation of a

light house. The Court rejected the government’s contention

that the Act “must be read as excluding liability in the per-

formance of activities which private persons do not per-

form. ..” Indian Towing, 350 U.S. at 64, and concluded that

“we would be attributing bizarre motives to Congress were

we to hold that it was predicating liability on such a com-

pletely fortuitous circumstance—the presence or absence of

identical private activity.” Jd. at 67. Furthermore, contrary

to the government’s assertion, Brief for Appellee at 22-24,

courts have not examined whether the activity that caused the

harm was the direct responsibility of the government, or was

merely subject to the government’s regulation. See infra

note 3.

none that rely solely on it to hold the government im-

mune from suit. Therefore, we reject the government’s

reliance on the private liability requirement. Instead

we rely solely upon the discretionary function or duty

exception, infra.

C. The Tort Claims Act and the Discretionary Function

Exception

1. The Purpose of the Discretionary Function

Exception

The Federal Tort Claims Act, 28 U.S.C., Chapter 171,

§§ 2674-2680 provides:

The United States shall be liable, respecting the pro-

visions of this title relating to tort claims, in the

same manner and to the same extent as a private

individual under like circumstances . . . [but the]

provisions of this chapter and section 1346(b) [the

jurisdictional statute] . . . shall not apply to—

Any claim . . . based upon the exercise or per-

formance or the failure to exercise or perform a

discretionary function or duty on the part of a

federal agency or an employee of the Govern-

ment, whether or not the discretion involved be

abused.

28 U.S.C. §§ 2674, 2680(a) (emphasis added). The effect

of this provision of the Act is to waive the government’s

sovereign immunity for certain kinds of tort liability,

but then create an exception to this waiver by excluding

the government from any liability where the claim is

based upon “the exercise or performance or the failure to

exercise or perform a discretionary function or duty .. .”

Id.

In the leading case interpreting this provision of the

Act, the Supreme Court explained: “[I]t was not con-

templated that the Government should be subject to lia-

bility arising from acts of a governmental nature or ~—

function .. . . Uppermost in the collective mind of Con-

- |

gress [in waiving immunity] were the ordinary common-

law torts. Of these, the example which is reiterated in

the course of the repeated proposals for submitting the

United States to tort liability is ‘negligence in the opera-

tion of vehicles.’” Dalehite v. United States, 346 U.S.

15, 28 (1952), quoting numerous references in legislative

history. Dalehite involved large damage claims against

the United States arising out of a disastrous explosion of

a ship carrying ammonium nitrate fertilizer, that had

been produced and distributed under the direction of the

United States. The Court concluded that the action was

barred by § 2680(a), supra, because the allegedly negli-

gent act involved governmental discretion “to act accord-

ing to one’s judgment of the best course” to follow with

respect to the program generally and the handling of

its product. Dalehite, 346 U.S. at 34. The Court com-

mented that

the “discretionary function or duty” that cannot

form a basis for suit under the Tort Claims Act in-

cludes more than the initiation of programs and

activities. It also includes determinations made by

executives or administrators in establishing plans,

specifications or schedules of operations. Where there

is room for policy judgment and decision there is

discretion. -

346 U.S. at 35-36. Dalehite also incorporated an extract

from the House Report on the bill which stated:

[The exemption was] also designed to preclude ap-

plication of the bill [Act] to a claim against a regu-

latory agency ... based upon an alleged abuse of

discretionary authority by an officer or employee,

whether or not negligence is alleged to have been

involved.

346 U.S. at 29, n.21.

More recently the Supreme Court in United States v.

S.A. Empresa de Vicao Aerea Rio Grandense (Varig

Airlines), 467 U.S. 797 (1984), pointed to the intent of

Congress in enacting the statute and its legislative his-

10a

tory. Varig Airlines involved tort actions by an airline

and victims of an airplane accident who alleged that the

Federal Aviation Administration (“FAA”) was negli-

gent in certifying the airline because its trash receptacles

did not satisfy safety regulations. The Varig Airlines

Court unanimously held that the FAA’s certification

process was immune under the discretionary function or

duty exception, concluding that “it is the nature of the

conduct, rather than the status of the actor, that governs

whether the discretionary function exception applies in a

given case.” Jd. at 813. With respect to congressional

intent the Court stated that the exception “plainly was

intended to encompass the discretionary acts of the Gov-

ernment acting in its role as a regulator of the conduct

of private individuals,” id. at 813-14,° and concluded that

Congress’ emphasis on protecting regulatory activities

suggests an underlying basis for the exception, i.e.: ““Con-

gress wished to prevent judicial ‘second-guessing’ of legis-

lative and administrative decisions grounded in social,

economic, and political policy through the medium of an

action in tort.” Jd. at 814 (emphasis added). The Su-

preme Court in Berkovitz also reaffirmed its interpreta-

tion that Congress’ purpose in enacting the exception was

’ The government relies partially on this language from

Varig Airlines in arguing that the “discretionary function

exception presumptively applies to the Government when act-

ing in its capacity as a regulator of individual conduct.” Brief

for Appellees at 31. Courts have unanimously rejected this

position. See, e.g. Collins v. United States, 783-F.2d 1225, 1229

(5th Cir. 1986) (‘‘We reject the government’s argument that

Varig exempts the United States from liability whenever

challenged conduct is regulatory in nature. Neither the lan-

guage nor the structure of the decision in Varig supports such

a view.”). Berkovitz v. United States, —— U.S. —— (1988),

further noted that “‘[iJn restating and clarifying the scope of

the discretionary function exception, we intend to specifically

reject the Government’s argument .. . that the exception pre-

cludes liability for any and all acts arising out of the regula-

tory programs of fedreal agencies.” Berkovitz, No. 87-498,

slip op. at 6 (June 13, 1988).

lla

“to prevent ‘[j]udicial intervention in . . . the political,

social, and economic judgments’ of governmental—includ-

ing regulatory—agencies.” Berkovitz v. United States,

— US. (1988), No. 87-498, slip op. at 7 (June

13, 1988), quoting Varig Airlines, 467 U.S. 814.

Other subsequent decisions have echoed Varig Airlines’

concern about judicial second guessing of agency decision

making. In Cisco v. United States, 768 F.2d 788, 789

(7th Cir. 1985), the Seventh Circuit ruled that ‘Congress

has left to the EPA to decide the manner in which, and |

the extent to which, it will protect individuals and their

property from exposure to hazardous wastes.” The facts

in Cisco are almost parallel to those here. Members of

several households in Cisco sued the EPA claiming that

it “was negligent in failing to warn [them] ... that dirt

contaminated by [hazardous dioxin] . . . had been used

as residential landfill, negligent in failing to require that

_the contaminated dirt be removed, and negligent in failing

to protect the households from exposure to the toxin.”

Id. The court relying primarily upon Varig Airlines,

dismissed the action on the ground that the discretionary

exception of the statute applied, and held:

When an agency makes decisions regarding the

supervision of private individuals,

it is exercising discretionary regulatory author-

ity of the most basic kind. Decisions as to the

manner of enforcing regulations directly affect

~ the feasibility and practicality of the Govern-

ment’s regulatory program; such decisions re-

quire the agency to establish priorities for the

accomplishment of its policy objectives by bal-

ancing the objectives sought to be obtained

against such practical considerations as staffing

and funding .... Judicial intervention in such

decisionmaking through private tort suits would

require the courts to “second-guess” the political,

social, and economic judgments of an agency ex-

ercising its regulatory function. It was pre-

12a

cisely this sort of judicial intervention in policy-

making that the discretionary function excep-

tion was designed to prevent.

Cisco, 768 F.2d at 789, quoting Varig Airlines, 467 U.S.

at 820 (emphasis added).

In Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1983), former

FBI Acting Director Gray sued the United States claiming

that the Justice Department’s investigations of him were

negligent. This court held that the United States was

immune from suit under the discretionary function ex-

ception. We noted that the most important modern policy

basis for sovereign immunity is that under “principles

of separation of powers, courts should refrain from re-

viewing or judging the propriety of the policymaking

acts of coordinate branches.” Gray, 712 F.2d at 511.

See also Sami v. United States, 617 F.2d 755, 766-67

(D.C. Cir. 1979) (“[{T]he policy of the [discretionary]

exception was to ‘prevent[] tort actions from becoming a

vehicle for judicial interference with decisionmaking that

is properly exercised by other branches of the govern-

ment’. . .” quoting Blessing v. United States, 447 F.

Supp. 1160, 1170 (E.D. Pa. 1978) ).

2. Application of the Discretionary Function Excep-

tion to This Case

Plaintiffs argue that Dr. Hernandez’s decision was

based only upon scientific considerations, and therefore

that it does not fall within the discretionary function

exception. Brief for Appellants at 14-20; Reply Brief at

13-19. Both sides point to congressional hearings

(“Hearings”) transcripts to support their arguments.*

On this issue we find that Dr. Hernandez’s decision to

4 Hazardous Waste Contamination of Water Resources

(EPA Implementation of the Superfund Program and Lead

Pollution Problems in Dallas, TX): Hearings Before the

House Subcommittee on Investigations and Oversight of the

House Committee on Public Works and Transportation, 98th

Cong., lst Sess. (1983).

13a

order further study was based on economic, social and

political policy considerations, and not solely on scientific

considerations as plaintiffs claim. The discretionary

function exception precludes liability in this case because

Dr. Hernandez was exercising permissible discretion

based on policy considerations in deciding to order fur-

ther study. In Berkovitz v. United States, supra, it was

held that the government was not insulated from suit

by the discretionary function exception. The Court ex-

plained that since plaintiff’s claim alleged that the gov-

ernment violated mandatory directives, the government

had no discretion, and therefore the discretionary excep-

tion could not apply. The unanimous opinion emphasized

that the exception “protects only governmental actions

and decisions based on considerations of public policy.”

Berkovitz, No. 87-498, slip op. at 5 (June 13, 1988). Ber-

kovitz distinguished cases, such as the present one, in

which “the policies and programs formulated by the

[government] allow room for implementing officials to

make independent policy judgments... .” Jd. at 14-15.

In cases which involve policy judgment and discretion,

such as this one, “the discretionary function exception

protects the acts taken by those officials in the exercise

of this discretion.” Jd. at 15.

In the agency Hearings here there are two examples

of economic considerations that Dr. Hernandez took into

account in making his decision. See Hearings at 62

(J.A. 105) (Dr. Hernandez quoted as saying that EPA

was proposing approaches to the lead contamination

issue “that will be within the context of practicality of

our budgetary restraints.”) ; Hearings at 320 (J.A. 132)

(Frances Phillips, EPA Deputy Regional Administrator,

states that Dr. Hernandez told her “that he did not think

we should spend any money to remove dirt or have any

bulldozers start up until we could identify a specific

health problem relative to this case.’’).

14a

The following statements in the Hearings support the

conclusion that Dr. Hernandez also took social and po-

litical factors into account in reaching his decision. See

Hearings at 66 (J.A. at 109) (Dr. Hernandez explains:

“Supposing that we had, the first day that report turned

up, said ‘Let’s go and take that playground and clean

that place up, and they do this, and say “Done” and get

a settlement out of it,’ and then we would have been

charged with a ‘sweetheart’ deal with somebody, done

in the dark of night, before we had done any kind of

further study, when in fact, we found that this study

showed problems further out.”); Hearings at 67 (J.A.

110) (Dr. Hernandez states that “moving ahead without

some kind of information as to the nature of the source,

the mode of travel, the kinds of control techniques that

might otherwise be used, would leave us open to the same

kinds of criticisms, ‘Why did you do that?’ ”) ; Hearings

at 317 (J.A. 129) (Mrs. Phillips states that “Dr. Her-

nandez was concerned about the precedent that cleaning

up at an action level of over a 1,000 parts per million

would set, not only in the Dallas area, but relative to all

the urban areas and lead smelter areas across the coun-

try.”); Hearings at 335 (J.A. 147) (Mrs. Phillips and

Dr. Hernandez discussed, among other factors, “a pri-

mary concern for the children” and “the effect this had

on other Federal court cases in the region .. . and how

this could affect our negotiations.”’) .

5 Plaintiffs primarily rely on two exchanges that took place

at the Hearings to support their view that Dr. Hernandez

relied only upon medical factors. The first of such exchanges

is Dr. Hernandez’s statement: “You know, if you said, ‘I

want to change your mind about using good information,

about collecting the best information, about looking at ex-

posures,’ you know, risks to human health are based on two

things—one, the presence of a toxic material whose risk we

analyze; and the second one is the exposure and the exposure

route that you have. And it is through those two processes,

neither one independent of the other, that we make our deci-

sions.” Hearings at 67 (J.A. 110). This quote cannot be

15a

II. CONCLUSION

Even though plaintiffs_need only “adduce a set of

facts,” Brief for Appellants at 1, supporting their legal

claims in order to survive a motion to dismiss, Gregg v.

Barrett, 771 F.2d 539, 547 (D.C. Cir. 1985), the gov-

ernmen. ‘aust prevail in this case. Since Dr. Hernandez’s

decision ordering further study involved “social, eco-

nomic and political policy” considerations, Berkovitz, 56

U.S.L.W. 4549, 4550, quoting Varig Airlines, 467 U.S. at

814, it is protected by the discretionary function ex-

ception. Therefore the government is immune from suit.*

taken out of context. In context it does not support plaintiffs’

argument because Dr. Hernandez’s further comments show

that he considered many nonscientific factors. Furthermore,

the quote does not state that he did not consider other factors

besides the two he mentioned.

The second exchange plaintiffs rely on derives from testi-

mony of four of Dr. Hernandez’s subordinates. Congressman

Snyder inquired of them whether they had “any reason to

believe that any actions on his (Dr. Hernandez) part were

based upon anything other than his scientific judgment.”

Hearings at 339 (J.A. 151). They each replied that they did

not. Jd. Plaintiffs also take these statements out of context.

Congressman Snyder was actually questioning the four sub-

ordinates to determine whether they knew of any “unholy

alliance between Dr. Hernandez and any of the three com-

panies” that could have influenced his decision. Jd. They did

not.

*The plaintiffs and the government disagree on which

aspect of the EPA’s actions this court should examine to

determine whether the discretionary function exception ap-

plies. Plaintiffs want the court to focus on Dr. Hernandez’s

decision to conduct further study of lead pollution levels.

Reply Brief for Appellants at 11. The government contends

that the court should instead concentrate its analysis on “the

overall discretionary activity at issue, the formulation of

policy standards for dealing with a particular environmental

problem.” Brief for Appellees at 32.

The government cites two cases to support its view that it

is improper for a court to “compartmentalize one aspect of

16a

We affirm the dismissal of the complaint because even as-

suming that all of its factual allegations are true, plain-

tiffs have failed to establish a right to relief. We are

therefore without jurisdiction.

Judgment accordingly.

a discretionary regulatory program and determine its policy

implications in isolation.” Brief for Appellants at 32-33. Nei-

ther case supports the government’s argument. In Smith v.

Johns-Manville Corp., 795 F.2d 301 (3d Cir. 1986), asbestos

suppliers sued the United States for indemnity and contribu-

tion for employees’ injuries. The court held that the General

Services Administration’s decision to sell asbestos “as is” fell

within the exception. The court disagreed with the defend-

ants’ view that the court should isolate the agency’s decision

not to use warning labels from the rest of the program.

Smith. 795 F.2d at 308. The basis for the decision in Smith

is distinguishable from the basis that is applicable here.

Smith emphasized that Dalehite bars suits when administra-

tors act in conformance with official directions. ZJd. In this

case, Dr. Hernandez, as EPA Deputy Administrator, was

formulating policy, not following official directions.

The government also cites Gray v. Bell, supra, to support its

position. The court found the government immune under the

exception, holding that the “tortious actions allegedly under-

taken by the defendants are too intertwined with purely dis-

cretionary decisions... .” Gray, 712 F.2d at 515-16. Gray

limited its holding to the facts presented. Jd. at 516. The

government argues that, as in Gray, it is impossible to con-

sider “an isolated decision to conduct further study of a pollu-

tion hazard .. . apart from the broad regulatory process of

developing a standard to apply.” Brief for Appellants at 34.

Dr. Hernandez’s decision is not too “intertwined” with the

overall regulatory process for this court to examine it. Dr.

Hernandez was in charge of formulating policies to deal with

the lead problem in Dallas. His decision to order further

study of the lead situation is a distinct aspect of the overall

policy formulation not to participate in a private cleanup that

could implicitly sanction an unproven standard and arguably

establish a controlling precedent as to a level of pollution

requiring government action.

17a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 87-5124 September Term, 1987

D.C. Civil No. 85-0333

United States Court of Appeals

For the District of Columbia Circuit

FILED JUL 19 1988

CONSTANCE L. DUPRE’

CLERK

(stamp)

Ella Mae Wells, et al.,

Appellants

United States of America,

Appellee

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Before: ROBINSON and EDWARDS, Circuit Judges,

and MacKINNON, Senior Circuit Judge

JUDGMENT

This cause came on to be heard on the record on appeal

from the United States District Court for the District of

Columbia, and was argued by counsel. On consideration

thereof, it is

18a

ORDERED and ADJUDGED, by the Court, that the

judgment of the District Court appealed from in this cause

is hereby affirmed, in accordance with the Opinion for the

Court filed herein this date.

Per Curiam

FOR THE COURT:

s/s Constance L. Dupre

CONSTANCE L. DUPRE, CLERK

Date: July 19, 1988

Opinion for the Court filed by Senior Circuit Judge Mac-

Kinnon

19a

Ella Mae WELLS, et al.,

Plaintiffs,

UNITED STATES of America,

age Defendant.

Civ. A. No. 85-3333.

United States District Court,

District of Columbia.

Feb. 2, 1987.

The United States moved to dismiss complaint brought by

area residents against Environmental Protection Agency with

respect to monitoring of lead pollution hazards. The District

Court, Parker, Senior District Judge, heid that alleged acts

and omissions on part of Environmental Protection Agency

when, with knowledge that toxic lead pollution existed and

that a public health risk to residents of area was posed, it

failed to correct or require those responsible for contamina-

tion to correct the problem fell within discretionary function

exception of Federal Tort Claims Act and precluded recovery

for physical and psychological harms and property damage

which residents and their minor children allegedly suffered

as a direct and proximate result thereof.

Motion granted.

1. United States KEY78(3)

Liability may be assessed against United States under the

Federal Tort Claims Act only if a private person would be

liable under comparable circumstances. 28 U.S.C.A. §

1346(b).

20a

2. United States KEY78(5)

A violation of a duty imposed by federal statute, without

more, does not give rise to cause of action under the Federal

Tort Claims Act. 28 U.S.C.A. § 1346(b).

3. United States KEY78(12)

Provisions of the Federal Tort Claims Act are not intended

to test the validity of or provide a remedy on account of

discretionary acts even though negligently performed and

involving an abuse of discretion, but are intended to provide

a remedy for individuals harmed through the commission

by government employees, acting within the scope of their

employment, of acts characterized as common-law torts.

28 U.S.C.A. § 1346(b).

4. United States KEY78(5)

Whether the United States could otherwise be held liable

under the “Good Samaritan” doctrine set forth in the Re-

statement (Second) of Torts is not controlling in the face of

specific exemptions from liability under the Federal Tort

Claims Act. 28 U.S.C.A. § 2680(a, h).

5. United States KEY78(12)

Discretionary function exception was meant to exempt

from the Federal Tort Claims Act claims arising from the

regulatory activities of federal agencies. 28 U.S.C.A. §

2680(a).

6. United States KEY78(12)

Applicability of the discretionary function exception to

the Federal Tort Claims Act depends, not upon the rank of

2la

the government actor reaponsible for the alleged misfeasance,

but upon the nature of the conduct in question. 28 U.S.C.A.

§ 2680(a).

7. United States KEY78(12)

Discretionary acts of the government acting in its role as

a regulator of the conduct of private individuals are presump-

tively exempt from liability under the Federal Tort Claims

Act as a means of preventing judicial second guessing of

legislative and administrative decisions grounded in social,

economic, and political policy through the medium of an

action in tort. 28 U.S.C.A. § 268Q(a).

8. United States KEY78&( 12)

Conduct implicating enforcement of safety or health

regulations is exempt from liability under discretionary

function exception of Federal Tort Claims Act to extent

that government actors are in any way engaged in making

policy decisions; calling into doubt Griffin v. United States,

$00 F.2d 1059 (3d Cir.). 28 U.S.C_A. § 2680(a).

9. United States KEY78(12)

Alleged acts and omissions of Environmental Protection

Agency when, with knowledge that toxic lead pollution

existed and that public health risk was posed, it failed to

correct or require those responsible for contamination to

correct the problem fell within discretionary function excep-

tion of Federal Tort Claims Act and precluded recovery for

physical and psychological harms and property damage

which residents and their minor children allegedly suffered

as a direct and proximate result thereof. 28 U.S.C.A. §§

1346(b), 2680(a).

22a

10. Health and Environment KEY25.5(5.5)

Authority of Environmental Protection Agency to enforce

environmental standards generally, or to respond to a particu-

lar environmental problem as it arises, does not require

EPA to warn area residents of local toxic pollution or to have

those wastes removed. 28 U.S.C.A. § 2680(h); Clean Air

Act, § 110(a)(1, 2), 42 U.S.C.A. § 7410(a)(1, 2).

11. Health and Environment KEY 25.5(5.5)

Discretion is vested in Environmental Protection Agency

to decide manner and extent to which it will protect in-

dividuals from exposure to hazardous wastes. 28 U.S.C.A.

§ 2680(h); Clean Air Act, § 110(a)(1, 2), 42 U.S.C.A.

§ 7410(a)(1, 2).

12. United States KEY78(9, 10)

“Misrepresentation” exception in Federal Tort Claims Act,

though applied more often to claims arising in a commercial

context, may be applied to a claim for personal injuries or

property damage. 28 U.S.C.A. § 2680(h).

13. United States KEY78(9)

Claim, as to alleged acts and omissions on part of Environ-

mental Protection Agency in monitoring, evaluating, regulat-

ing and communicating knowledge of public health risks

and lead pollution hazards in area relied heavily upon an

express charge of willful disinformation and, to that extent,

was clearly excluded by “misrepresentation”’ exception to

Federal Tort Claims Act. 28 U.S.C.A. § 2680(h).

Pee Po i te OR a AO LY nes Ten De

23a

Frederick M. Baron, Charles S. Siegel, Baron & Budd,

Dallas, Tex., Anthony Roisman, Trial Lawyers for Public

Justice, Washington, D.C., for plaintiffs.

Arvin Maskin, Jo Brooks, Torts Branch, Civ. Div., U.S.

Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM OPINION

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 suffer-

ed as a direct and proximate result of the negligent acts and

omissions of the Environmental Protection Agency (“EPA”)!

in monitoring, evaluating, regulating and communicating

knowledge of public health risks and lead pollution hazards

in their neighborhoods.

In Count I, plaintiffs alleged 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 4 9(d). Plaintiffs further contend

that EPA was negligent in failing to adequately warn of the

pollution hazards. Complaint 44 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.

For ease of reference, defendant United States and the EPA will

be referred to collectively as the “government.”

24a

(“CAA”). Complaint § 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 the Northem District of Texas,

under 28 U.S.C. § 1402(b).

For the reasons set forth below, the Court determines

that the discretionary function and misrepresentation es-

emptions of the FTCA, or alternatively, that under 28

25a

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.2

BACKGROUND

In support of their complaint, plaintiffs allege the follow-

ing facts, which, for purposes of resolving the motion, will

be accepted as true. See Papasan v. Allain, US.

, 106 S.Ct. 2932, 2943, 92 L.Ed.2d 209 (1986);

Conley v. Gibson, 355 U.S. 41, 4546, 78 S.Ct. 99, 101-02,

2 L.Ed.2d 80 (1957); Gregg v. Barrett, 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 com-

panies,? 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

2. Because of this determination, the Court need not reach the

government’s contention that certain of the 571 claims are barred

under § 2675(a) of the FTCA because the claimants did not file the

required administrative claims before filing this suit.

3. The three manufacturers named in the complaint are the RSR

Corporation, Dixie Metals Corporation and N.L. Industries.

26a

standard of 1000 parts per million, that soil samples also

contained elevated concentrations of lead.

Following the conclusion of this study, the RSR Corpor-

ation, 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 infor-

mation from a prepared official press statement in order

- to mislead the public as to the extent of the lead contamina-

tion. 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 ary 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.

1 rn are

Or Auer

Plaintiffs also assert that EPA acted in violation of its

statutory directive as embodied in the CAA, 42 U.S.C.

————

27a

§§ 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 the FTCA

[1-3] 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 circum-

stances. 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 Jocal law for private actors. Art Metal—U.S.A.,

Inc. v. United States, 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

28a

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., Ist Sess. 5-6; Hearings before House Com. on JSudici-

ary 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, 73 S.Ct. 956, 964 n. 21, 965, 97 L.Ed. 1427 (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.4 346

U.S. at 27-28, 73 S.Ct. at 963-64.

[4] To a great extent, the requirement that liability

would have to lie against a private person under like circum-

stances 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 func-

tion 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 “mis-

representation” exceptions of section 2680(h) are rooted

in common ground,° the “private liability”’ requirement may

4. It is interesting to note that, under the FTCA, liability does

not lie against the United States for a host of otherwise actionable

common-law torts. See 28 U.S.C. § 2680(h) (no claim for assault,

battery, false imprisonment, false arrest, malicious prosecution, or

abuse of process—unless committed by investigative or law enforcement

officers—or for libel, slander, misrepresentation, deceit, or interference

with contract rights).

5. See infra 724.

Nate AR Se le abit AAAS. 8 Oat

29a

be seen as the predicate for exempting government mis-

representations from tort liability under the FTCA. Since

the “private liability’ requirement is, for purposes of analyz-

ing 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 other-

wise to act, may be liable for his failure to exercise reason-

able 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 (lst Cir.1977),

cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d

388 (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,

_—

30a

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 func-

tion 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

[5] As consistently noted, most recently in United

States v. S.A. Empresa de Viacao Aerea Rio Grandense,

467 U.S. 797, 808, 104 S.Ct. 2755, 2761, 81 L.Ed.2d

660 (1984) (“Varig Airlines’), “‘[t]}he [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), pro-

vides that the Act does not embrace

[a]ny claim based upon an act or omission of

any 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.

Tee ee

ue. es

3la

As a unanimous Court pointed out in Varig Airlines, the

“discretionary function exception . . . marks the boundaries

between Congress’ willingness to impose tort liability upon

the United States and its desire to protect certain government

activities from exposure to suit by private individuals.” 46>

U.S. at 808, 104 S.Ct. at 2762. The Court underscored the

limited nature of the waiver of sovereign immunity. stressing

that the discretionary function exception was meant to

exempt from the Act claims arising from the regulatory

activities of federal agencies. /d. at 809-10, 104 S.Ct. at

2762-63. That exemption was intended to embrace such

activities, even where the agency abuses its discretion in

carrying out its statutory mandate. /d. at 809, 104 S.Ct.

at 2762 (quoting Hearings on H.R. 5373 and H.R. 6463

before House Com. on the Judiciary, 77th Cong., 2d Sess.

28, 33 (1942) (statement of Assistant Attorney General

Francis M. Shea)).

[6,7] The Court also took the opportunity to reaffirm

the holding of Dalehite v. United States, 346 U.S. 15, 73

S.Ct. 956, 97 L.Ed. 1427 (1953), that the exception includes

not only the “initiation” of programs or activities, but also

“determinations made by executives or administrators in

establishing plans, specifications or schedules of operations.”

467 U.S. at 811, 104 S.Ct. at 2763 (quoting Dalehite. 346

U.S. at 35-36, 73 S.Ct. at 968). The Court went on to enum-

erate two principles to be used in applying Dalehite. First,

the rank of the government actor responsible for the alleged

misfeasance is not relevant: rather, it is the nature of the

conduct in question that governs the applicability of the

exception. /d. at 813, 104 S.Ct. at 2764. Second, “‘the

discretionary acts of the Government acting in its role

as a regulator of the conduct of private individuals[,]~

id. at 813-14, 104 S.Ct. at 2764, are presumptively exempt

from liability as a means of “prevent[ing] judicial ‘second-

guessing’ of legislative and administrative decisions grounded

32a

in social, economic, and political policy through the medium

of an action in tort.” /d. at 814, 104 S.Ct. at 2765S.

In this proceeding, plaintiffs dispute that the government’s

conduct involved judgment of a social, economic or political

policy nature sufficient to invoke the discretionary function

exception. They argue that the decisions made by EPA

did not involve policy considerations at all, but rather pre-

sented negligent “‘scientific determinations” that fall outside

the discretionary function exception. To support that claim,

plaintiffs assert that the discretionary function exception is

not applicable where the challenged decision is made at an

“operational” rather than a “planning” or “policy” level,

citing a number of pre-Varig cases.

[8] One such case, upon which plaintiffs principally

rely for the proposition that discrete, “‘objective”’ scientific

determinations may fall outside the exception, Griffin v.

United States, 500 F.2d 1059 (3d Cir.1974), has been

questioned by the court that decided it as being possibly at

odds with Varig Airlines. See Smith v. Johns-Manville Corp. .,

795 F.2d 301, 309 (3d Cir.1986); General Public Utilities

Corp. v. United States, 745 F.2d 239, 246 (3d Cir.1984),

cert. denied, 469 U.S. 1228, 105 S.Ct. 1227, 84 L.Ed.2d

365 (1985). While not expressly overruled, Griffin has been

distinguished by the Third Circuit and is of questionable

precedential value. See 795 F.2d at 309 n. 13; 745 F.2d

at 246.

Griffin heid that the release of a certain quantity of polio

vaccine tested and found unsafe by government standards

was an act that was not protected by the discretionary

function exception. The Court concluded that “[w]here

the conduct of Government employees in implementing

agency regulations requires only performance of scientific

evaluation and not the formulation of policy, we do not

taiecaeiaaieiaeeeaneaaiininiaaaiaaiiiiitiel

33a

believe that the conduct is immunized from judicial review

as a ‘discretionary function.’ ’” 500 F.2d at 1066. When

limited to its facts, Griffin does not compel a holding that

the conduct complained of by plaintiffs in the instant case

falls outside the exception. On the contrary, unlike those

found actionable in Griffin, the acts and omissions charged

here comprised the formulation of regulatory policy —whether

and to what extent EPA should enforce environmental

and health standards. “When an agency determines the

extent to which it will supervise the safety procedures of

private individuals, it is exercising discretionary regulatory

authority of the most basic kind.” Varig Airlines, 467 U.S.

at 819-20, 104 S.Ct. at 2767. Therefore, such acts or omis-

sions cannot give rise to liability under the FTCA.

In a memorandum of supplemental authority, filed upon

invitation of the Court, plaintiffs have attempted to rehabili-

tate Griffin or to otherwise demonstrate that it is still good

law. To that end, they argue that Griffin has been cited with

approval in a recent case from this Circuit, Red Lake Bank of

Chippewa Indians v. United States, 800 F.2d 1187 (D.C.

Cir.1986). Red Lake cites Griffin only for the proposition

that actions undertaken outside the scope of an official’s

authority do not remain within the protections of the discre-

tionary function exception.® 800 F.2d at 1196 (citing

Griffin, 500 F.2d at 1068-69). That rather unexceptional

proposition has no bearing on this case. Here, the officials

whose acts are complained of cannot be said to have contra-

vened any “mandatory” or “‘non-discretionary [regulatory]

6. In Red Lake, the court held that acts of an FBI agent performed

outside his jurisdiction could not be said to fall within the exception;

acts undertaken within his sphere of authority were protected. 800

F.2d at 1197-98. Plaintiffs here do not suggest that Dr. Hernandez

had no authority to make the kinds of decisions that he did; they

simply disagree with the conclusions that he reached.

34a

command.” Griffin, 500 F.2d at 1068. Even if they abused

the discretion they were bound to exercise, that dereliction

would not support an action under the FTCA.

In another authority relied upon by plaintiffs, Alabama

Electric Cooperative, Inc. v. United States, 769 F.2d 1523

(11th Cir. 1985), the court indicated that it felt that, if

limited to its facts, Griffin may be consistent with Varig

Airlines. 769 F.2d at 1529 n. 2. Yet if limited to its facts,

Griffin is inapplicable to the present situation. As discussed

supra, the weighing of costs and benefits where concededly

permitted is precisely the kind of discretionary function that

Congress was seeking to protect. Limited to its facts, Griffin

merely holds that the failure to carry out a mandatory

directive does not involve the exercise of discretion. Similar-

ly, Alabama Electric holds that, absent some cost/benefit

or policy analysis, the negligent design of a structure by a

governmental entity (there, the Army Corps of Engineers)

may be actionable under the common-law of engineering

malpractice. 769 F.2d at 1534-37. In other words, if a

governmental actor deliberately, after weighing the alterna-

tives, decides upon a course of action that injures another,

that person has no cause of action under the FTCA. See id.

at 1534, However, if the actor simply through negligence or

oversight does the wrong thing, suit by a person injured

thereby will not be barred by the discretionary function

exception. /d. at 1531-34 (discussing cases).?

7. Collins v. United States, 783 1225 (5thCir.1986), also cited by

plaintiffs, adds nothing new to the present analysis. There, the court

held that a failure to perform a mandatory regulatory action (specifi-

cally, the failure to close a mine after levels of methane gas had exceed-

ed critical levels) was actionable under the FTCA. Jd. at 1230-31.

The court also may have to some extent been influenced by plaintiffs’

allegations that the actions of the official in question-were willful or

even criminal, involving tampering with air samples. See id. at 1227.

The court did note that the official pled guilty to conspiracy to defraud

the government. Jd. at 1227 n. 2.

35a

Recently, the Seventh Circuit applied Varig Airlines

and Dalehite to claims quite similar to those at issue here.

In Cisco v. United States, 768 F.2d 788 (7th Cir.1985),

the plaintiffs brought an FTCA claim for personal injuries

and property damage resulting from exposure to dioxin-

contaminated soil used as a landfill in Jefferson County,

Missouri. They charged EPA with negligence in failing to

require that the contaminated soil be removed and in failing

to warn of the pollution hazard. Affirming the dismissal

of the suit for lack of subject matter jurisdiction, the court

reasoned that

in deciding not to warn Cisco about the con-

taminated landfill and in deciding not to

remove the contaminated dirt from the

landfill, the EPA made political, social and

economic judgments pursuant to its grant

of authority. Cisco may not challenge those

judgments under the FTCA because they

fall within the discretionary function excep-

tion of 28 U.S.C. § 2680(a).

Id. at 789-90.

Other courts addressing similar issues under the FTCA

have consistently held that conduct implicating the enforce-

ment of safety or health regulations is exempt from liability

to the extent that the government actors are in any way

engaged in making policy decisions, broadly construed. See,

e.g., Smith v. Johns-Manville Corp., 795 F.2d 301 (3rd Cir.

1986) (no liability for selling surplus asbestos without

warranties): Begay v. United States, 768 F.2d 1059 (9th Cir.

1985) (no duty to wam uranium miners of safety hazards);

Shuman vy. United States, 765 F.2d 283 (ist Cir.1985)

(no duty to warn employees of government contractor of

asbestos hazards or to take steps to eliminate them): General

36a

Public Utilities Corp. v United States, 745 F.2d 239 (3rd

Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1227, 84

L.Ed.2d 365 (1985) (no duty to warn of defects in nuclear

plant design); First National Bank in Albuquerque v. United

States, 552 F.2d 370 (10th Cir.), cert. denied, 434 U.S.

835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977) (no liability for

improper labeling and registration of fungicide); Jn re:

Consolidated United States Atmospheric Testing Litigation,

616 F.Supp. 759 (N.D.Cal.1985) (no Liability for failure to

wam of or take steps to minimize hazards surrounding

testing of nuclear weapons).8

[9] With respect to the actions complained of in this

proceeding, EPA similarly had broad discretion in deciding

the means by which to manage the pollution problem in

Dallas. Although plaintiffs do not cite any statutory author-

ity, other than the Clean Air Act, for the proposition that

EPA was under an affirmative duty to protect them from

lead pollution hazards, the statutes which in fact govern

EPA’s conduct offer wide judgmental latitude to the agency

in its determination of what, if any, action need be taken in

response to a particular environmental concern. The enact-

ment of the Comprehensive Environmental Response, Com-

pensation, and Liability Act of 1980, P.L. 96-510, 94 Stat.

2767, codified at 42 U.S.C. § § 9601 et seq. (1982) (“CERC-

LA”), provided EPA with authority to “consider,” “bal-

ance,” and “select” a variety of measures in response to a

particular environmental contingency. In similar fashion,

8. Plaintiffs rely heavily on Allen v. United States, 588 F.Supp.

247 (D.Utah 1984), where the court held that the discretionary func-

tion exception did not bar claims for radiation exposure when the

governmental decision-makers did not make studied “eyes open’”’

policy judgments. Jd. at 329-40. That construction of the exception

seems to represent a minority view. See, e.g, Smith v. Johns-Manville

Corp., 795 F.2d 208-09. Allen is currently on appeal. No. 84-2126

(10th Cir.).

37a

the Resource Conservation and Recovery Act, codified at

42 U.S.C. §§ 6901 et seq. (1982), provides broad authority

to the agency in performing activities affecting hazardous

waste management and the manufacture and disposal of

chemicals.

Plaintiffs allege that EPA violated statutory duties man-

dated under the Clean Air Act. The CAA was enacted to

protect and enhance the quality of the nation’s air resources

by, among other things, providing technical and financial

assistance to state and local governments in connection

with the development and execution of their air pollution

prevention and control programs. 42 U.S.C. § 7401(b}(3).

The regulatory program established by the CAA places on

each state the primary responsibility for assuring air quality

within its geographic area by requiring each state to submit

an implementation plan specifying the manner in which

it will achieve and maintain national air quality standards.

Id. § 7407. Prior to establishing those air quality standards

for a given air pollutant, the Administrator must list the

air pollutant as a substance which “in his judgment’? may

reasonably be anticipated to endanger public health or

welfare. Jd. § 7408(a). Within nine months after the promul-

gation of a national primary air quality standard, each

state is required to adopt and submit to the Administrator

a plan which provides for the implementation, maintenance,

and enforcement of the primary standard in each air quality

control region within the state. Jd. § 7410(a)(1). The Admin-

istrator then has four months from the date required for

submission of the state implementation plan to approve the

entire state plan or any portion of it, or to disapprove it.

Id. § 7410(a){2).

In short, as discussed above, statutes that govern the scope

of EPA’s activities leave the agency free to exercise its

38a

judgment as to what is the “best course,” Dalehite, 346

U.S. at 34. 73 S.Ct. at 967, to achieve the goals that Congress

has set for it.

[10,11] EPA’s authority to enforce environmental

standards generally, or to respond to a particular environ-

mental problem as it arises, did not require the agency to

warn residents of local toxic pollution or to have those

wastes removed. Congress has left EPA to decide the manner

and the extent to which it will protect individuals from

exposure to hazardous wasies. Such decisions represent the

exercise of “‘discretionary regulatory authority of the most

basic kind[,]”’ Varig Airlines, 467 U.S. at 819-20, 104 S.Ct.

at 2767, and, hence, do not give rise to liability under the

FTCA.

THE MISREPRESENTATION

EXCEPTION

The government contends that even if it misrepresented

and failed to warn plaintiffs of the extent of the lead pollu-

tion problem it is immune from liability under 28 U.S.C.

§ 2680(h).2 Such immunity would bar claims arising out of

negligent as well as willful misrepresentation. United States

v. Neustadt, 366 U.S. 696, 702-07, 81 S.Ct. 1294, 1298-

1301, 6 L.Ed.2d 614 (1961).

[12] Plaintiffs assert that the misrepresentation excep-

tion is inapplicable in that it applies only to claims arising in

a commercial context. It is true that the tort of “‘misrepre-

sentation” has more often arisen from claimed “invasion[s]

of interests of a financial or commercial character, in the

course of business dealings.” Neustadt, 366 U.S. at 711

9. That section has been discussed supra note 4.

ce ery ae

39a

n. 26, 81 S.Ct. at 1302 n. 26. This general observation,

however, does not mean that section 2680(h) has not been

applied to actions for personal injuries or property damage

based on alleged misrepresentations. Indeed, since Neustadt

a number of courts have applied the exception to both

personal injury and property damage claims. See, e.g., Baroni

v. United States, 662 F.2d 287 (Sth Cir.1981), cert. denied,

460 U.S. 1036, 103 S.Ct. 1426, 75 L.Ed.2d 787 (1983)

(recovery for property damage barred), Reynolds v. United

States, 643 F.2d 707 (10th Cir.), cert. denied, 454 U.S. 817,

102 S.Ct. 94, 70 L.Ed.2d 85 (1981) (claim for personal

injury barred).

In reviewing the scope of the misrepresentation exception,

the Supreme Court has indicated that, where the misrepre-

sentations alleged are “not essential” to an otherwise action-

able claim, the exception will not bar that claim. Block v.

Neal, 460 U.S. 289, 296-98, 103 S.Ct. 1089, 1093-94, 75

L.Ed.2d 67 (1983). The plaintiff in Block had contracted

with the builder for the construction of a house according

to Farmers Home Administration (“FmHA”) specifications.

A FmHA representative inspected the work and reported

that it complied with construction specifications. In fact,

the workmanship was defective in a number of respects.

After the builder refused to cure the defects, plaintiff sued

FmHA for the cost of the required repairs. In holding that

the claim was not barred by the misrepresentation exception,

the Court pointed out that the gravamen of the complaint

was not that the plaintiff was misled by the erroneous

inspection report, but rather that, after undertaking to

supervise the construction, FmHA did so in a negligent

manner. The Court thus held that the plaintiff was entitled

to attempt to prove at trial facts that would allow recovery

40a

under the “Good Samaritan” doctrine.!9 460 U:S. at 297,

103 S.Ct. at 1094.

[13] While Neal advises caution in dismissing a claim

that is not in fact grounded in misrepresentation, the decision

does not suggest that, whenever a separate cause of action

can be winnowed out from a claim for misrepresentation,

that cause of action can be brought under the FTCA. In the

instant case, once plaintiffs’ claim for misrepresentation is

removed, what is left is a claim premised upon a classically

discretionary function--a claim that is, therefore, barred

under the FTCA. And, of course, plaintiffs are not suggesting

that their claim for misrepresentation be disregarded; rather,

they rely heavily upon express charges of willful disinforma-

tion. To that extent, they seek to bring claims that are

clearly excluded by the misrepresentation excey ‘ion.

Moreover, because plaintiffs’ misrepresentation claim is

so closely tied to their other allegations, it would be anoma-

lous to hold that a claim may be brought for misinforming

persons about the lead pollution problem, but not for mis-

handling the problem in other respects. Rather, plaintiffs’

entire cause of action stems from an activity that Congress

believed should not be scrutinized by the medium of a

tort action for damages. Varig Airlines, 467 U.S. at 809-10,

104 S.Ct. at 2762; Dalehite, 346 U.S. at 29-30, 73 S.Ct. at

964-65,

10. Presumably, oversight cf the construction was not considered

a discretionary function or otherwise exempted from FTCA liability,

and for that reason the Court apparently felt that the “Good Samari-

tan” doctrine was applicable.

4la

CONCLUSION

The controlling authorities governing the imposition of

and immunity from liability under the FTCA clearly com-

mand dismissal of this proceeding under the discretionary

function and misrepresentation exceptions of the Act, and

because the “private liability’ requirement has not been

met. This is not to say that persons in plaintiffs’ position

can never achieve redress for a government agency’s mis-

handling of important environmental, health, or safety

problems. It is only to say that such redress cannot be

achieved by suing the government for damages when it

abuses its discretion in regulating the matters entrusted to

it. Rather, the appropriate medium for challenging such

governmental misfeasance is a suit under the Administrative

Procedure Act, see Smith v. Johns-Manville Corp., 795

F.2d at 308 n. 11, or if such a suit would not be appropnate,

a petition in Congress. See Begay, 768 F.2d at 1066.

An appropniate order will be entered.

ORDER

For the reasons set forth in the Court’s Memorandum

Opinion of this date, it is this 2nd day of February, 1987,

ORDERED

That the defendant’s motion to dismiss is granted and that

the above-captioned matter is dismissed with prejudice.

WEST KEY NUMBER SYSTEM

42a

HAZARDOUS WASTE CONTAMINATION OF WATER

RESOURCES

(EPA Implementation of the Superfund Program and

Lead Pollution Problems in Dallas, TX)

(98-73)

HEARINGS

BEFORE THE

SUBCOMMITTEE ON INVESTIGATIONS AND

OVERSIGHT

OF THE

COMMITTEE ON PUBLIC WORKS AND

TRANSPORTATION

HOUSE OF REPRESENTATIVES

NINETY-EIGHTH CONGRESS

FIRST SESSION

MARCH 16, 24, 1983

Printed for the use of the Committee on Public Works and Transportation

aiid

bate i Be.

43a

areas immediately adjacent or near these three lead smelters

have extremely high levels of this toxic metal in their sys-

tems, and that more than a dozen children in this predom-

inately black, poor subdivision in the Dallas area may have

life-threatening levels of lead in their blood; and that a

recently released study done by the Center for Disease

Control in Atlanta, funded by EPA, shows that while overall

test results of the lead blood levels were below the national

average, they were 14 percent higher than the norm for

the Dallas area.

Now, I have mentioned all of this because, first of all,

EPA has known these problems have existed for slightly

more than 2 years, and as I understand it, virtually nothing

has been done to clean up the lead soil deposits, and only

now are the EPA and the State moving to control air emis-

sions from one of the two smelters and to eliminate part

of the problem. And according to news accounts, you, Dr.

Hernandez, more than 18 months ago, were quoted as

saying, “We are proposing some approaches to the lead

contamination issue that will be scientifically sound and that

will be within the comtext of practicality of our budgetary

restraints.”” Lead is a very hazardous chemical. It can damage

the central nervous system, kidney damage, is known to

lower the IQ of children and impede their mental accuity.

.if this was known 18 months ago, but nothing was done.

Why?

Dr. HERNANDEZ. I think a great deal was done on that

particular one. First, there was a need to characterize the

problem. What we started off with at that time was a lead-

in-soil study. We did not have good ambient backgrounds

around those areas for the air emissions to tie with that,

and we did not have the kind of information needed with

44a

respect as to exposure, to particularly children, but also

individuals in that area as a whole. What we really needed

was a sampling program where we went out and actually

measured people——

Mr. LEVITAS. A sampling of what?

Dr. HERNANDEZ. Blood levels in children, particularly.

Mr. LEVITAS. Why would you need to have that

information if you knew what the levels of lead were?

Dr. HERNANDEZ. There is no a priori lead level in soils

that is a prerequisite for some kind of cleanup action. The

route of soil led into the body system, the exposure system,

is complex, depending on the age of the children, the kind

of climate you have, dirt streets versus paved, and as a result

we do not have an a priori cleanup level. There is nothing

that says, “Here is the place at which you begin to remove

soil automatically.”

There were some initial things that happened in that

case——

Mr. LEVITAS. But before we get away from that,

you remember I asked you earlier about reliance on epidemi-

ological evidence as opposed to human test evidence? I am

not a scientist, but I have read for years, going back as far

as the Romans, that people knew that exposure to lead and

high quantities of lead had these consequences. High levels

of lead were determined to be in place at these three sites

in Dallas. Why did we need to take blood levels of these

children for 2 years before something was done about clean-

ing up the mess?

45a

Mr. LEVITAS. _ All right.

Dr. HERNANDEZ. Mr. Chairman, let me just say the

characterization of using the children as guinea pigs is just

not fair, and that is not characteristic of what we were

doing.

Mr. LEVITAS. Iam not suggesting that.

Dr. HERNANDEZ. We were using the best information

we had from this team of people looking at the situation.

Mr. LEVITAS. Who made the decision to take the blood

tests rather than do the cleanup?

Dr. HERNANDEZ. Well, I do not think there was ever

an either/or decision. I think that there was a consistent

willingness of one of the companies to do something. Now,

whether or not that was total and appropriate or not, the

only way you could determine it was by finishing the study

process.

Now, I would say you would have a really good point

that you could say, ““Hernandez, look at these biood levels

in these kids. You should have taken action.” I do not

believe that was the outcome.

Mr. LEVITAS. Dr. Hernandez, you have put your

finger on where you and I disagree about this thing. I am

suggesting where the Environmental Protection Agency

identifies the presence of a potential health hazard in the

environment, that the thing to do first is to clean it up, to

eliminate the risk.

Is there anybody ——

46a

Dr. HERNANDEZ. And I was saying, Mr. Chairman,

that there are no magic numbers that you can look for—

criteria for lead in soils to make that kind of a decision.

Mr. LEVITAS. Let me make sure I understand your

testimony quite clearly. You were unaware that the com-

panies involved, the smelters involved, had negotiated with

the regional enforcement people for purposes of cleaning

up the soil, removing the soil?

Dr. HERNANDEZ. I was familiar with the fact that

at least one of the companies would do something, but the

size of that plume, where it was, and how much cleanup

was necessary, and under what kinds of situations, was

not clear at all. You know, we may have made one of those—

let me just give you the other side. Supposing that we had,

the first day that report turned up, said, “Let’s go and take

that playground and clean that place up, and they do this,

and say ‘Done’ and get a settlement out of it,” and then

we would have been charged with a “‘sweetheart”’ deal with

somebody, done in the dark of night, before we had done

any kind of further study, when in fact, we found that this

study showed problems further out.

Mr. LEVITAS. But if you had let them clean it up and

not released them from further liability, if they were willing

to clean it up, you would have eliminated 18 months of

exposure.

Dr. HERNANDEZ. And I do not know that they were

ready to take that kind of thing, to do some kind of cleanup

and also remain liable. | do not know that.

And listen—I was never informed about that kind of detail

on this thing, as to where we were at in that kind of enforce-

ment process.

alert bah alas Te On.

Meastinns

47a

Mr. LEVITAS. You see,~again, it gets back to—let us

relate it strictly back to the Superfund situation. One of the

concerns that we on this subcommittee have in the philoso-

phy that negotiate first and litigate second has had is it has

overlooked completely the purpose of Superfund. You did

not need Superfund to negotiate; you did not need Super-

fund to litigate. Those were there to begin with. Superfund

had as its purpose to clean up, clean up the sites, remove the

health hazard, and take people out of jeopardy.

Now, here, in the Dallas lead matter, I see a situation—and

the reason I am pressing you on this so is that I want to see

if we can bring about a change in attitude and philosophy,

not just a change in personnel, but a change in attitude and

philosophy, which says where you identify the potential

of contamination that could potentially pose an imminent

health hazard to people, get on with the cleanup and do the

scientific blood sampling later on to see how far you have

to go, but not to wait 18 months before you do the initial

action—particularly in the Dallas situation where, according

to the information I have—and I suggest you go back and

have someone review the files at headquarters—there was a

willingness on the part of the smelters to go forward through

a negotiated settlement at their expense.

Now you can respond.

Dr. HERNANDEZ. Let me say that in terms of

emergency situations where there is a clear-cut real threat

to humans, we do move ahead’ we do clean it up. We do not

wait. We step forward and do it.

Lead soils, where you do not have an a prion target that

says, “This is an emergency,” at least at the levels we have

been dealing with, “‘This is an emergency. Move forward with

great haste here.’’ You know, if you said, “I want to change

your mind about using good information, about collecting

48a

the best information, about looking at exposures,” you

know, risks to human health are based on two things—one,

the presence of a toxic material whose risk we analyze:

and the second one is the exposure and the exposure route

that you have. And it is through those two processes, neither

one independent of the other, that we make our decisions.

And you know, I want to be responsive to you. I want to

say, “Yes, we are going to move out there and move force-

fully.”

Mr. LEVITAS. _ I understand, and I respect your position

on this, Dr. Hernandez. I am just telling you we have a

difference of approach in how we ought to deal with this,

and I want to explain in a moment how EPA in another

circumstance reversed its priorities of timeliness. But please,

I want you to finish. I want you to state your position for

the record.

Dr. HERNANDEZ. I guess, whether in the absence of

any kind of clear-cut criteria for target levels for concern

for the presence of a particular chemical in the atmosphere,

in our water, that some continuation even for a short period

of time would be hazardous—moving ahead without some

kind of information as to the nature of the source, the mode

of travel, the kinds of control techniques that might other-

wise be used, would leave us open to the same kinds of

criticisms, “Why did you do that:”

What I am saying to you is that on every one of these

cases, we just have to use our best judgment and use our

best guess on these things.

Mr. LEVITAS. 1{ would like for you, Dr. Hernandez,

to review the files on this matter. I am asking our staff to

make arrangements to

—

HOO aa

49a

317

Was there a decision made, a policy decision made with

respect to that and to the areas related to it?

Ms. PHILLIPS. Dr. Hernandez was concerned about the

precedent that cleaning up at an action level of over a 1,000

parts per million would set, not only in the Dallas area,

but relative to all the urban areas and lead smelter areas in

the country.

He was also concerned that the scientific literature may

not support the 1,000 parts per million level. He preferred

that we do a health study to determine the action level.

I have to say the the 1,000 parts per million level was

one of many levels that were discussed as we tried to deter-

mine and action level.

Se we were receiving views from everyone on what was the

apprepniate level.

Mr. LEVITAS. Dr. Dyer, you are a toxicologist. What is

your view of the matter?

Mr. DYER. Based on the literature that we reviewed

during this time, I think we had sufficient evidence based

on studies conducted by Dr. Carol Angle in Nebraska, Dr.

Landrigen, and many others, to indicate that at least 1,000

parts per million should be an action level.

That was the reason for recommending that corrective

measures to be taken in those areas having a 1,000 parts

per million or more.

Mr.SNYDER. Their April 21 letter was the only thing

you had in writing from them: is that correct?

50a

Ms. PHILLIPS. I had two documents in writing. I had

the April 21 letter. Then on May 28, I asked the company

to submit to me in writing the commitment that they could

place into a press release, which they did submit in writing.

Mr.SNYDER. Does that mention the 1,000 parts per

million level? iz

Ms. PHILLIPS. Yes, sir.

Mr. SNYDER. OK. I was just trying to see if they had

made a commitment on a thousand.

Ms. PHILLIPS. Yes, sir. They had.

Mr.SNYDER. Thank you.

Thank you, Mr. Chairman.

Ms. PHILLIPS. They had approved the specific language

prior to submitting it to Washington.

Mr.SNYDER. You submitted this press release to

RSR?

Ms. PHILLIPS. I submitted a draft release to RSR on

April 28 and asked them to give back to me not an editing

of the press release, but their commitment that could be

~ added to my press release as to what they were willing to

clean up to. Yes, sir.

Mr. SNYDER. Thank you, Mr. Chairman.

Mr. MOLINARI. Would you yield?

Mr. LEVITAS. I will be happy to yield. Congressman

Molinari has a question at this point.

Sla

Mr. MOLINARI. I have a great concern as to the

method in which the standard was established. What is

general policy with respect to the establishment of a national

standard? How does it usually come about?

Mr. Davis.

Mr. DAVIS. For most of the national standards, whe-

ther it be under the Clean Air Act, the Resource Conserva-

tion and Recovery

52a

320

Now that information was available to you in region VI,

and obviously was available at headquarters well before the

end of May and early June 1981.

Mr. DYER. That is correct.

Mr. LEVITAS. Was that part of the basis for your use

of the 1,000 parts per million as your standard?

Ms. PHILLIPS. Yes, it was.

Mr. DYER. Yes, it was.

Mr. LIVITAS. Thank you. You see what concerns

me—again, I don’t understand with all of this background,

with what you were finding, why the big slowdown came,

and the concern about 1,000 parts per million as being a

standard for doing something, rather than going back and

having some more blood studies being done before you did

anything.

That is my concern. In light of what we know and what

the silence was telling us and what headquarters was saying,

maybe you can enlighten us on that, Ms. Phillips, or Dr. Dyer.

Mr. DYER. Yes, I would like to make a comment. We

were aware of the information that Mr. Janney referred to,

and several other articles, that showed the same type of soil/

lead relationships.

That was the reason we were very concerned about the

situation and recommended the clean up at those levels. So,

yes, I agree. And in most cases, as you have pointed out,

action is based not on the actual existence of a problem,

but, it is based on the potential for a problem.

ee ee ree

53a

But in this case we had evidence of human exposure. So

we had more information in this situation than we normally

have in other enforcement cases.

Mr. LEVITAS. You raise a very important point. Here

you had—you say in most cases you take action based upon

the potential for health hazard.

Mr. DYER. _ Right.

Mr. LEVITAS. Here you had a situation where there

was not only potential, based upon your sou studies, but

actual evidence of exposure to the most vulnerable popula-

tion, small children.

Mr. DYER. Correct.

Mr. LEVITAS. And you were ready to go forward.

Now, was there a shift between the end of May and the

first of June in a policy of going forward where there was

potential, plus actual exposure, and what came out of head-

quarters from Dr. Hernandez?

Ms. PHILLIPS. I think I can respond to that. After the

press release on June the Ist that had been reviewed by

Washington, during that week, approximately June 3, or June

4, somewhere around that time, | did get a call from Dr.

Hernandez.

He specifically told me that he had reviewed the literature:

that he believed that the thousand parts per million level

could not be supported in the literature: that he did not

think we should spend any money to remove dirt or have

any bulldozers start up until we could identify a specific

health problem relative to this case.

54a

He asked us at that time to prepare a status report and

options paper to send him on the situation. I went back

as a result of that telephone call and talked about the matter

with my staff.

My staff was very concerned, I might add, and suggested

that I might not have been forceful enough in my discus-

sions with him

what he wanted us to do, and I said, yes, sir, that was the

direction that we would go.

Mr. MOLINARI. Was this in the nature of an order?

Ms. PHILLIPS. This was in the nature of a telephone

conversation.

Mr. MOLINARI. _ But didn’t he say this is the way we

are going to go and that is it?

Ms PHILLIPS. It was an order to me, yes, sir.

Mr. MOLINARI. _ It was an order.

Ms. PHILLIPS. I called Dr. Hernandez back after I had

gathered the speaking points together and went over, as |

recall, from my best recollection, four major points. One of

them was a primary concer for the children. I reminded

him that this was in a poor area of Dallas, and the region’s

concerns for the children. Second, I talked to him about,

again, what we have been discussing here, what was perceived

to be a change of direction at that time in our operations

that we had gone from action on a potential health problem

to having to prove an actual health problem before we did

anything. And I specifically talked about that in relation to

the effect this had on present negotiations in other Federal

court cases in the region where we were using section 7003

of RCRA and other statutes, and how this could affect our

negotiations and how, last, this could affect our futher

decisionmaking.

Mr. MOLINARI. _ All right.

Ms. PHILLIPS. Those were my main points.

56a

Mr. MOLINARI. Did you ever learn why RSR went

ahead voluntarily to clean up? Did they communicate their

reasons why they did proceed even though there was a

holdup on whether they should or not from headquarters?

Ms. PHILLIPS. I think that they had made a corporate

commitment and——

Mr. MOLINARI. I understand that, and they are

probably to be congratulated for making that commitment.

But since there was a holdup and they decided to go ahead,

it seems to me that they must have had a judgment that it

was the prudent thing to do. I am just wondering if you have

any information to share with us as to how and why they

made that decision. :

Ms. PHILLIPS. Well, when we initially set the 1,000

parts per million as our regional action level, we reviewed

with them the literature that we used to come up with that

number as a——

Mr. MOLINARI. _ By them, you mean RSR?

Ms. PHILLIPS. RSR, yes, sir.

Ms. PHILLIPS. And I think that they believed that it

was the prudent thing to do.

Mr. LIVITAS. Thank you. I would like to recognize

the gentleman from Kentucky at this time. Then we will

go around again, because the significance of this change and

shift in policy is of deep concern to me, and its implications.

The gentleman from Kentucky.

Mr.SNYDER. Thank you, Mr. Chairman.

none

574

Ms. Phillips, you wrote a memorandum to Dr. Hernandez

on July 7, 1981, recommending clean up by the companies.

That is correct, isn’t it.

Ms. PHILLIPS. July 7?

Mr.SNYDER. Yes, ma’am.

58a

339

Mr. DAVIS. Not to my knowledge.

Mr. SNYDER. Did anybody on your staff indicate an

imminent health hazard existed or there was a prosecutable

case?

Mr. DAVIS. — I would say various members of the staff,

including Dr. Dyer, expressed their concern that they felt

there was an immediate health hazard. However, the medical

people that we were dealing with in EPA, Washington, and

subsequently with CDC and the peer review, in both the

review of the Dallas report and also in the final report,

indicated that there was no indication of lead poisoning.

The data that was available had indicated no probability,

possibility in their mind for that happening. But you did

have lead toxicity, which obviously is of concern.

But 1 don’t think that CDC or the peer group review in

either report gave any indication of their feeling of a medical

health problem.

Mr. SNYDER. _ I have been listening a whole lot today.

I haven’t asked a whole lot of questions until right now. It

appears to me that there is perhaps an overriding allegation

that Dr. Hernandez’s scientific judgments were in error.

That seems to be the drift of what I get from the testimony

that I have heard thus far.

’

I want to ask all four members of the panel, aside from

that, do any of you have any evidence that there is any, or

has been any unholy alliance between Dr. Hernandez and

any of the three companies that we have mentioned this

morning?

59a

Ms. PHILLIPS. No evidence.

Mr. WHITTINGTON. I don’t, sir.

Mr. DYER. I do not.

Mr. DAVIS. — I don’t.

Mr.SNYDER. Do you have any reason to believe that

any actions on his part were based upon anything other than

his scientific judgment, even though it may have been in your

opinion in error?

Mr. WHITTINGTON. I do not.

Ms. PHILLIPS. Ido not.

Mr. DAVIS. No.

Mr. DYER. No.

Mr. SNYDER. Thank you, Mr. Chairman.

Mr. LEVITAS. Thank you, Mr. Snyder.

Just to make the record clear on that point, though——

Mr. SNYDER. Does the chairman want to respond to

the question?

Mr. LEVITAS. Yes. In case there is any, in case you

: want to go beyond that, I am not simply questioning Dr.

Hernandez’s scientific judgment. I am questioning and chal-

lenging his policy judgment and his enforcement judgment,

and the change in policy that he brought about as a result

of this decision.

60a

Mr. SNYDER. _ I think all of that has been placed in

question. Perhaps what I just said in the area of his scientific

judgment was not all encompassing. But to get to the reason

for that, I asked the latter two questions. Apparently they

believe it was error in judgment on his part in all of the areas

that the chairman has mentioned, but based upon anything

corrupt between him and any of the three companies. That

is the essence I get from the testimony.

Mr. LEVITAS. And I will just say I am not aware of

any corruption. I am aware of a policy, as I view it, by Dr.

Hernandez and the

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.