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November 9, 2005.


The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge


This matter came before the Court on July 11, 2005, on Defendant's Motion to Dismiss the fourth through tenth claims in this action under Fed.R.Civ.P. 12(b)(1), or alternatively, Fed.R.Civ.P. 56(c). Defendant contends that this Court is barred, under Section 113(h) of CERCLA, from exercising jurisdiction over Plaintiff's fourth through tenth claims because they improperly seek to challenge the government's ongoing clean up of a contaminated site. Defendant also contends that this Court lacks jurisdiction over Plaintiff's fifth through tenth claims on the ground that they are barred by the discretionary function and misrepresentation exceptions to the FTCA. Having carefully considered the parties' extensive written and oral arguments, supplemental filings, and the entire record herein, the Court grants Defendant's motion for the reasons set forth below.

I. BACKGROUND On September 2, 1999, Plaintiff, Shea Homes Limited Partnership ("Shea") purchased a 10 acre parcel of property in Novato, California, which was previously part of the Hamilton Air Force Base ("HAFB") prior to its closure in 1974. On December 30, 1999, Shea acquired an adjoining 18 acre parcel. The combined 28 acre property adjoins a part of the former HAFB which used to be the primary repository for garbage generated at the HAFB (including solid and hazardous wastes) from the early 1940s until 1974. This area is now referred to as Landfill 26 ("LF 26"). It is roughly 47 acres in size, and consists of a 200 foot buffer zone surrounding a 30 acre landfill "cap" that covers the area where the garbage was formerly deposited. Shea, a large residential housing developer, developed the 28 acres it purchased in 1999, and has transferred ownership of some or all of the property to third-parties. It contends, however, that Defendant, the United States, failed to meet its obligations to address the contamination at LF 26, causing Shea to suffer damages.

  Since 1986, the United States Army Corps of Engineers ("Corps") has been in engaged in various efforts to investigate, remediate, and monitor the waste in LF 26 pursuant to the Defense Environmental Restoration Program — Formerly Used Defense Sites ("DERP-FUDS") and orders issued by the Regional Water Quality Control Board ("RWQCB"). The basic remedy chosen was the installation of the cap, referenced above, which was installed in 1994-95 and covers the landfill, a ground water treatment system, and a gas perimeter monitoring network.

  In June 1996, methane in excess of 5.7% by volume was detected at one of the LF 26 perimeter gas monitoring probes ("GMP") — GMP No. 5. Further sampling in early and mid 1999 did not detect methane in excess of 5% by volume. In September 1999, however, after Shea's purchase of the first 10 acre parcel, methane was again detected in excess of 5 % by volume at GMP 5 (17.3%) and GMP 9 (9.8%). Subsequent monitoring in October 1999 and December 1999 did not detect methane in excess of 5%.

  In October 1999, the RWQCB did not approve final closure of the site and ordered further landfill gas sampling. In June 2000, the Corps began a supplemental testing program. By the Fall of 2000, the Corps determined that methane might be migrating off-site from LF 26 in excess of 5% by volume and that further action was required. On February 7, 2001, the RWQCB directed the Corps to submit a plan to, inter alia, reduce methane to below compliance levels. In March 2001, the Corps proposed and evaluated seven approaches for controlling methane migration. In April 2001, the RWQCB raised various concerns with respect to the proposed remedial options, and directed the Corps to implement (1) an interim stopgap measure to immediately intercept gas migrating from LF 26 and towards the Hamilton Meadows development, (2) a long-term management plan of methane at its source, and (3) a time-schedule for implementing the gas collection and treatment activities.

  In December 2001, the RWQCB issued Cleanup and Abatement Order ("CAO") 01-139 requiring the Corps to investigate, design, and implement a final remedy with respect to the methane or face civil penalties. Between January 2002 and January 2003, the Corps installed a 1600 foot Vent Trench with an impermeable liner in the buffer zone area between the landfill cap and Shea's property in order to intercept any landfill gas prior to migrating off-site. The Corps is currently evaluating the effectiveness of the Trench. The Corps is also working under a RWQCB-imposed deadline of September 30, 2006 for the installation and operation of a "Landfill Corrective Action [gas control system]." See Def.'s Ex. 31 at 10.

  Shea does "not challenge[] the remedy selected by Defendant to abate the contamination." Pl.'s Opp. at 2. It complains, however, that the Corp has failed to properly and timely implement its remedy and to satisfactorily abate the contamination, causing it to suffer damages. Id. at 1-2. The instant action seeks monetary damages and injunctive relief. Specifically, the complaint asserts claims for (1) cost recovery and contribution under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., (2) for injunctive relief under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., and (3) tort damages based on claims of public and private nuisance, trespass, negligence, negligence per se and equitable indemnity.

  Defendants subsequently filed the instant motion under Fed.R.Civ.P. 12(b)(1) to dismiss the RCRA and tort-based claims on the ground that the claims are barred by (1) exceptions to the Federal Tort Claims Act, and/or (2) section 113(h) of CERCLA.*fn1 The Court addresses these arguments in turn.


  Defendant contends that this Court lacks jurisdiction over Plaintiff's state law tort claims because they fall within the discretionary function exception to the Federal Tort Claims Act ("FTCA"), which provides for a limited waiver of sovereign immunity from claims for damages against the United States. United States v. Gaubert, 499 U.S. 315 (1991). It is the government's burden to demonstrate that this exception applies. Prescott v. U.S., 973 F.2d 696, 703 (9th Cir. 1992).

  The discretionary function exception to the FTCA "is a statutory reservation of sovereign immunity for a particular class of tort claims." Gager v. United States, 149 F.3d 918, 920 (1998). It provides that liability under the FTCA shall not extend to a claim:
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 is abused.
28 U.S.C. § 2680(a). The basic purpose of the exception is to protect the government from "judicial `second guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." United States v. Varig Airlines, 467 U.S. 797, 814 (1984). It "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." Aragon v. United States, 146 F.3d 819, 822 (10th Cir. 1998).

  In Berkovitz v. United States, 486 U.S. 531 (1988), the Supreme Court established a two-tier analysis for identifying which governmental functions are discretionary for purposes of the exception. First, a court must examine whether the challenged conduct involves an element of judgment or choice, since "conduct cannot be discretionary unless it involves an element of judgment or choice." Berkovitz, 486 U.S. at 536. Conversely, the exception does not apply if the statute, regulation, or policy at issue prescribes a specific course of action. Aragon v. United States, 146 F.3d 819, 823-24 (10th Cir. 1983). In such a case, the employee has "no rightful option but to adhere to the directive." Id.

  If the Court finds that the challenged conduct was "discretionary," then the court must analyze whether the discretion exercised was of the type that the exception was designed to shield — i.e., choices that are grounded in social, economic, and political policy. Gaubert, 499 U.S. 315. The exception extends from broad policy decisions made at the highest levels to "low-level employees making discretionary day-to-day management decisions based on policy considerations." Childers v. U.S., 40 F.3d 973, 974 n. 1 (9th Cir. 1995). Whether the government in ...

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